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the jailer to deliver said prisoners to the officer for that purpose, which precept the keeper of the jail voluntarily and peaceably obeyed, and the prisoners being brought into court to answer to said indictments, were discharged or recommitted as the judgment in each case required.
And the said Woodbury Davis answering further says, that it is not true that, “ in his capacity as judge, he has assumed, without legal issue or judicial trial thereof, to deny the lawful and actual validity of the commission of the said Daniel C. Emery, issued under the hand of the governor and the seal of the State." The said Daniel C. Emery and Seward M. Baker aforesaid, each held a commission under the hand of the governor and seal of the State. The latter was in attendance upon the court, — the former applied to be employed in his stead. He had given previous notice in person and by counsel, that such application would be made, and had requested the court to be prepared to decide upon it. As an application to be employed in the service of the court, it was legitimately presented for decision. It was ably argued on behalf of said Emery, by his counsel, on the ground that he was duly authorized under the constitution to act as the sheriff of the county in executing the orders and precepts of the court. And having given the matter such consideration as, under the pressure of other duties, he was able, he, the said Woodbury Davis, was of the opinion that said Seward M. Baker was still the sheriff of the county, and therefore he decided to continue to employ him, and not to employ said Emery. But he expressly denies that he in any manner undertook to interfere with the action of the governor and council in appointing said Emery, or with the right and privilege of said Emery to act in discharging the duties of said office, except in the employment of said Court while in session as the officer thereof, but in deciding which of said claimants he would employ, he expressly declared that ** upon such opplication the court will assume no authority to determine which of the parties is, under the constitution, the sheriff of the county : nor will the court interpose between the claimants, ercipt so far as it may be necessary for its own prolection and the transaction of its own business."
All of which answers and statements, the said Woodbury Davis is ready to verify by certified copies of record and the oral testimony of witnesses on oath before this convention.
Wherefore the said Woodbury Davis avers that in all these proceed-, ings, specified herein, he has acted faithfully and impartially in the conscientious discharge of duties incumbent upon him as a justice of the Supreme Judicial Court, in accordance with the provisions of the constitution of this State, and under the responsibilities of his official oath to support the same, and he prays that this answer may be entered upon the journal of the senate.
Henry W. Paine, Esq., of Boston, (until recently of Hallowell, in Maine,) then proceeded to address the convention. In the course of his opening, he moved for leave to introduce evidence, and submitted the following formal motion :
MOTION FOR LEAVE
TO INTRODUCE WITNESSES.
In a joint convention of the members of the two branches of the Legisla
ture of Maine, April 5th, 1856, for the purpose of admilling Woodbury
Daris, one of the Justices of the Supreme Judicial Court, to a hearing in his defence upon certain charges against him, entered on the Journal of the Senale, March 19, 1856.
And now the said Woodbury Davis, still adhering to his protest already presented, and relying upon the same, respectfully represents, that before he is heard in his defence, it is incumbent upon the legislature to introduce legal evidence to sustain the said charges, of which evidence he, the said Woodbury Davis, is entitled to have notice. He therefore requests that the evidence in support of said charges may now be produced in his presence, and that he may be permitted to introduce and examine witnesses on oath in his defence, and to show that there are no valid causes within the meaning of the constitution of this State, why the legislature should adopt an address for his removal from office, and he prays that this request may be entered upon the journal of the senate.
WOODBURY Davis. The president of the senate said the motion was not allowable under the rule, and therefore could not be entertained.
Mr. Paine then introduced written statements, signed by leading members of the bar of the county of Cumberland, setting forth the facts as they have been already presented, and as set forth in Judge Davis's answer, with extracts from the records of the court, a copy of the capias, &c. No evidence was introduced in support of the removal. No witnesses were examined, and no debate had. The convention was addressed on behalf of Judge Davis, by Henry W. Paine, Esq., Hon. F. O. J. Smith, and Hon. Rufus Choate. Hon. Edward Kent, late Governor of Maine, attended Judge Davis as counsel, but did not address the convention. A corrected report of Mr. Paine's argument has been published. It shows that he brought to bear upon the subject, learning, labor, zeal, and address of no common order. We regret that we have no report of the speech of Mr. Smith. He is said to have made a stirring and eloquent appeal.
MR. Paine's ARGUMENT.
The limits of this article allow only a very condensed statement of the points. After pressing certain preliminary objections to the form of proceedings, and to the deprivation, as he esteemed it, of a “hearing in his defence," he objected
1. That the causes assigned, if they meant anything, amounted to charges of " misdemeanor in office.” That the constitutional remedy for this was impeachment. By that proceeding, the officer was entitled to a regular trial, to be
confronted by witnesses, with the right of cross-examination; to witnesses in his own behalf, with compulsory power to secure their attendance; to a court of sworn judges; and to security against all but a vote of two-thirds against him.
That an officer could not be removed by the executive, on a mere majority vote, by address, for a cause for which he is impeachable. The removal by address was intended for cases which impeachment does not cover, as unofficial misconduct, or mental, moral, or physical incapacity. Under this head, he objected that the Senate, who would be the judges of this cause on an impeachment, were making themselves parties by originating the address.
2. That the causes assigned were no grounds for removal either by address or by impeachment. There was no allegation of incapacity of any kind, mental, moral, or physical, and no charge of wilful misconduct. The whole charge is, that he admitted the claim of one man, and denied that of another, to an office. This hè did upon his own view of the law. He was compelled to decide the question which should act before him as a sheriff. One of the claimants must be recognized, and the other not. He limited his decision within the narrowest bounds, and did all he properly could to avoid a decision. It comes to this, that, in the opinion of the other branches of the government, he decided wrong. He could not be removed merely for a wrong decision, granting it to be one. Even decisions in banc, made deliberately after consultation, are sometimes wrong, and often thought so. An incidental decision of one judge at nisi prius, may well be so. To remove for that cause, would simply be making the legislature and the executive the supreme judiciary.
3. Judge Davis, sitting at nisi prius, was as much bound by the constitution, as if sitting in banc. It is the supreme law, everywhere. Each claimant had an executive commission. He only decided between them. The governor, if be thought the constitution authorized him to appoint a new sheriff, was right in acting upon his understanding of the constitution. Judge Davis, if he thought otherwise, was obliged to act upon his conviction, in his official capacity. The case is not one of a disregard of one department by another, but of a conflict between co-ordinate departments, each acting in its sphere. Judge Davis had no decision of the Supreme Court to guide him, the parties not having brought the question before the full bench, and neither the legislature nor the executive having called for a judicial interpretation of the constitution.
4. Mr. Paine reviewed the conduct of Judge Davis, on both occasions, to show that he acted with candor, discretion, and modesty. He argued that his course at the March term, respecting the prisoners, was necessary, and strictly in accordance with law.
5. Ile contended that if the proposed address was adopted, it would result in the worst consequences to the people, leading inevitably to retaliation, and probably ending in converting the right of removal by address into an engine for putting the judicial office into the gift of the party in power each year, in violation of the principles of the constitution.
6. He made a learned and elaborate argument to show that the decision of Judge Davis was in fact right, and gave it as his professional opinion, that it was so. That question, however, turns chiefly on the letter of the law of Maine, and not being necessary to the understanding and decision of the principal question, economy of space requires us to omit it here.
MR. CHOATE's ARGUMENT.
Mr. Choate began by stating gracefully and cogently, that, a citizen of another State, he should need an apology for occupying a place that could be so well filled by members of the bar of Maine, if this were a question of local law and policy; but as it was one concerning the public constitutional law, substantially alike in all the States, on which the interpretation adopted here would produce an effect everywhere, a law in which the citizen of each State was at home everywhere, and always and almost equally interested, he felt that he could not be regarded as a stranger to the question, or an intruder.
He stated the question to be this : 6: With what specific purpose, and under what limitations, have the people of Maine given to the legislature the power to remove or to cause and co-operate in removing, by address, a judge of the highest judicial tribunal; and are you now about to use that power as they intended and expected it to be used when they gave it? Did they mean to authorize their agents and servants of one department, the legislature or the legislature and governor, to remove their agents and servants of another department - a judge or a bench of judges — admitted to be honest, admitted to be competent,- for the single reason that in a case regularly be
fore him or them, he or they formed and expressed an opinion on the interpretation of the constitution and a statute, (the interpretation of which belongs exclusively to the judges) differing from the opinion entertained by you ?”... Can the two other departments remove a member of the judiciary department, because, in a judicial opinion, he has expressed his own judgment and not theirs ?
The record of “causes for removal,” shows that there is no charge or insinuation of bad faith, incapacity, neglect, bad temper, or any general intellectual, moral or physical inability. It does not intimate that anything against his general fitness is to be inferred from his acts in this case. It simply states his judicial opinion and act, in a given case, right, if that opinion was right, wrong, if that opinion was erroneous; but only, at most, a mistake on a point of law, but whether it be a mistake or not, being still matter of opinion.
One canse for removal assigned is, that he “ assumed, without legal issue or judicial trial thereof, to deny the lawful validity of the commission," &c. The evidence showed that he desired the parties to present the question before the full bench, by regular issues, but that this was refused, and that each claimant came before him with a commission, and each claimed an office which only one could exercise. He was compelled to decide which should act, and this was all he decided. He was obliged to decide according to law, and not according to the will of the executive department. He was as much obliged to decide that question, as this convention would be to decide which of two claimants is its president, under the rules.
The whole charge is, that on a question of which the judiciary is the final and conclusive interpreter, the judge gave an opinion in which the legislature differ from him, the question which is right, not being yet referred to the only conclusive authority.
The people, who are sovereign, express their will in the constitution. This is the supreme law to all departments, all magistrates, and all citizens. In order that it may be a legal and not a mere moral restraint, the duty of deciding upon it conclusively, is lodged in one department. That is the judiciary. The decisions of this department are decisive of all questions rightly before it, whether they arise from acts of individuals, or of the legislature, or of the executive. To secure this end, the judges rnust not be dependent on the other departments. They must not express the