executive or legislative will, but the will of the people, as found in the constitution. To this end is the provision that the judges shall hold "as long as they behave themselves well." If their misbehavior is official, it must be determined by trial or impeachment; if not official, they may be removed by address after hearing, for causes assigned.

Mr. Choate referred to history for the practical interpretation of this power of removal, and declared that there had not been an instance in any part of the Union, of a removal of a judge by address, for an alleged mistake of law, nor an attempt at such a thing. He referred to the case of Judge Loring, and showed that the petitioners for the removal disclaimed the notion of removing him for his decision, but put his removal solely on the ground of alleged mis-conduct in another office, of so gross a character as to show mental and moral unfitness for any judicial office. The legislature of Massachusetts voted the address on the ground of the truth of these charges; but the refusal of the governor to remove him had been generally acquiesced in by the people. This interpretation by the people of all the States, in all times, is strong primâ facie evidence of the meaning of the provision.

He examined the history of the provision for removal by address, in the British Act of Settlement, and showed that it was introduced there, not to give parliament and the king a new power over the judges, but further to restrain the power of the king. It was to prevent the king's removing them at pleasure, and thus making them the agents of his will. From this history of the provision, and from the context of all the constitutions, he argued that it was not intended in our constitutions to give a new arbitrary power to the governor over the judges, by consent of the legisla ture, in violation of the great provision of good behavior

tenure.

On the main question of the true construction to be given to the power of removal by address, he argued that the constitution, above all other instruments, must be so construed as to make it harmonious and consistent. There was the fundamental principle of the division of powers into three departments, each to be supreme and independent in its sphere, and neither to exercise the powers of the other. It would be in violation of this principle if the judges should be compelled to echo the will of the executive, or of the executive and legislature, in their decisions. If the other departments can reduce the judges to their tenants at

will, they are not an independent department, supreme in their sphere, and the other departments do, indirectly, by proxy, exercise judicial power.

Another essential principle of all written constitutions is, that all legislative and executive action must be brought to the test of the constitution, and if it conflicts with the constitution, must be pronounced void. The tribunal to which the people intrusts this great power, is the judiciary. That it may exercise the power without fear, favor, affection, or hope of reward, it must be independent of the ordinary action of these departments. Consequently, these departments cannot reduce their salaries, cannot remove them from office, except on impeachment and conviction, or by address for "causes," and after hearing in defence. If the mere will of these departments is sufficient cause, how can any man "defend” himself against it? If their will is sufficient cause, what is the value of the principle, that the judicial interpretation of the constitution shall override legislative and executive action and opinion? for these departments can make and unmake the judges at their will. Still more inconsistent is it, if, as in this case, the very fact that the judiciary does its duty and brings executive action to that test, is made a cause for removal.

Having, by an elaborate historical and philosophical examination, and comparison of the various constitutional principles and provisions, established the position that the setting aside executive action, as unconstitutional, cannot be a "cause" for removing judges, he proceeded to examine the question, whether there could be any difference between the duties of a judge at nisi prius, and a judge in banc. It can hardly be necessary to give to the professional reader even an abstract of an arguiment on this point. It is a distinction which can have no chance of reception, except in the mistake of a person ignorant of the duties and constitution of courts. Mr. Choate showed that the constitution was the highest law for the judge, everywhere, and that the position could hardly be seriously taken that the judges collectively were to follow the will of the people, but separat ly, the will of the executive; in banc, to be governed by the constitution, at nisi prius, by the governor. The distinction between nisi prius and banc, is merely technical, and for convenience. Formerly in Maine and Massachusetts, the distinction did not exist, and does not now, in capital

cases.

The session is the Supreme Court, whether held by one judge or by all, and the one judge is the court, for the

VOL. IX. NO. II. -NEW SERIES.

7

time. He is to administer the law there, as well as in banc, and not to follow his own will, or interests, or the will of any person or department. Parties need not appeal, and cannot be compelled to appeal, from the decision of the judge at nisi prius, and often do not. He is to give them the law, for the time being, under his oath. This judge was bound to say, not whom he thought it most safe, most expedient, most politic, most popular, or most agreeable, to recognize as sheriff, but whom the constitution compelled him to recognize.

Equally untenable is the position that the legislature and governor may remove a single judge for alleged judicial mistake, but not the full bench; that they may remove every judge, but not all the judges. The constitution knows no difference. It is the judge, and not the bench, that is protected againt the will of the other departments.

Mr. Choate then proceeded to an examination of the opinion pronounced by Judge Davis, and contended, and so gave his own professional opinion, that the decision was, in fact, correct; although that ought to be an irrelevant consideration on the question of removal. He distinguished this case, by a plain and broad distinction, from the opinion of the judges of the Supreme Court of Massachusetts, on the construction of the statute of 1855 of that State.

We are glad to learn that this argument of Mr. Choate will be published, as revised by himself; for it is impossible to do it any justice in a brief abstract. It will be a valuable addition to the constitutional literature of America, and fully sustain his great reputation as a jurist, orator, and scholar.

After the close of Mr. Choate's address the convention dissolved.

The address on the subject was carried in the senate by a vote of 25 to 3; and in the house by a vote of 81 to 60, nearly or quite a party vote, as we have been informed, in both places. Fifty-nine members of the house offered a protest against the address, which the house refused to receive. The protest places the objections to the removal on the following grounds: viz.

1. That the preliminary proceedings were in violation of the constitu

tion.

2. That the convention of the two branches was an unauthorized mode of hearing the defence.

3. That the causes of removal assigned amount to misdemeanor in office, and that for misdemeanor in office impeachment is the only constitutional mode of removal.

4. That Judge Davis had shown conclusively, that there were no causes either for impeachment or address. He had made an honest decision, in a case he was obliged to meet, which he limited in the strictest manner. That, as neither the executive, nor the legislative, nor the claimants, took measures to obtain the opinion of the full bench of the Supreme Court, and he had no judicial guide, he was bound to decide according to his views of the constitution. His differing from the executive or legislative departments was such a difference as the constitution contemplates, and the execution of the constitution sometimes requires. It follows from the fact, that the constitution, and not the executive will, is the law for the judge. 5. That the removal of Judge Davis was predetermined as a political and party measure, before action by either branch of the legislature, and the hearing a mere form.

6. That it will be a dangerous precedent, leading to proscription and removal in all cases of party difference.

Finally, on the ground that it is a violation of the principles of constitutional liberty and order, annulling the will of the people as expressed in the constitution, and subjecting the judiciary to a dependence on the other departments.

After the passage of the address, the governor, the Hon. Samuel Wells, on the 11th day of April, by proclamation, declared Judge Davis removed from office, accompanying the declaration with an elaborate statement of reasons. More than half this document is devoted to an argument against the correctness of the decision of Judge Davis in the case of the sheriff. He comes to the conclusion that the opinion of Judge Davis was wrong, and that his own construction was the right one, for this was the same governor that issued the later commission.

He then takes up the question of the removal, and upon this point we give his own words that we may not be suspected of doing him injustice.

Acting in accordance with the opinion promulgated by Judge Davis, most of the sheriffs and registers of probate throughout the State refused to surrender their offices. As the new sheriffs were responsible for the custody of prisoners, and needed the prisons to hold in safe keeping those whom they were commanded to commit, and were required by law to occupy by themselves or their deputies, the houses connected with the jails, in some cases it became necessary to break open the doors of the jails, and houses appertaining to the jails, to obtain possession of them. Judge Davis continues to entertain the opinion upon which he first acted, and his conduct is in direct conflict with the government. He refuses to recognize its officers, and into whatever county he may go, he will doubtless recognize the former officers, and thus encourage and sustain insubordination and opposition to the regularly constituted authorities. According to his views, the new sheriffs have no right to hold the jails, or to arrest and confine any person. And if one of them should undertake to make an arrest by virtue of a precept in his hands, the person attempted to be arrested might kill the officer, if necessary to prevent the detention of his person and restraint of his liberty, and the act would be justifiable. If his doctrine is correct, it would be his duty to uphold the former incumbents in the employment of force to retain their offices, and the jails, and houses appertaining to them. His conclusion would lead

practically to an open and forcible resistance to the existing government, and invite to civil war and revolution.

The different departments of the government are bound to respect the acts of each other. When a person has a commission from the executive of the State, granted in pursuance of the ordinarily exercised authority, it is the duty of all citizens to submit to it; and if it has been erroneously issued, the remedy to be sought by those who object to it, is to bring the question before the legal tribunal provided for its decision. When a final determination of those appointed to decide has been made, the executive and the people are bound to conform to it.

But an opinion by a single judge against the power of appointment, even in a case properly pending before him, would not justify resistance to the appointment. To produce such result, there must be an adjudication of a tribunal empowered to render a final judgment as in ordinary cases between parties who bring their suits before it. One judge does not constitute the judicial department. The opinion of Judge Davis was not given in a case pending in court. It had no more authority in the contemplation of the law, than if it had been read by him in the street. No exception could be taken to it, so as to bring the matter before the full court. The law does not provide for exceptions in such a proceeding. Hence it was clearly his duty for the time being to receive the new sheriff, until his opinion in a case properly entered on the docket of the court, in concurrence with the other members of it, could have eventuated in a final judgment. Upon any other principle of action the government would be thrown into complete confusion, the people would be acting in opposition to each other, and so also the officers. The sheriff would have as much right to challenge the validity and authenticity of the judge's commission, as the judge that of the sheriff; they both derive their commission from the same source. Other subordinate officers could pursue the same course, and thus an end would be put to civil government. A judge should not be removed for an expression of an honest opinion merely, unless it indicates such a want of judgment, knowledge, and disposition, as shows him unfit to discharge the high and responsible duties of the judicial office. But when his opinion is perseveringly carried into practical operation to the destruction of all order and authority, what can be done but to take away the power thus improperly exercised? The constitution makes ample provisions for such remedy, and the question submits itself to the sound judgment of those who are to act in reference to it. The people have retained the power, through their representatives, not only to impeach judges "for misdemeanor in office," but "every person holding any office may be removed by the governor, with the advice of the council, on the address of both branches of the legislature." The constitution does not prescribe the grounds of the address, but leaves it to the judgment, sense of propriety, and justice of the legislature. Party considerations should never enter into such measure, but the true motive should be the promotion of the public good by sustaining the institutions of the State, and the preservation of a pure and wise administration of justice. We have no reason to suppose that the disorder caused by Judge Davis will not continue to the end of the present year at least. And it could hardly be expected that direct opposition between two different sets of officers, one sustained by the executive, and the other by the judge, could continue without violence, and breaches of the peace, of the most serious character. The condition of affairs requires, that either the legislature and the executive must yield to Judge Davis, and permit him to determine who shall act as sheriffs, or remove him from office. The necessity of the case, requiring the address, must have pressed itself upon the legislature. It could not feel justified