in returning to its constituents, and leaving a man in power, who was arraying himself against the whole government of the State.

Both the legislature and the executive are under a solemn obligation to the faithful discharge of their duty. They could not justify to themselves a wilful neglect to correct known and dangerous errors on the part of a public functionary, especially such as actually disturbed the peace and tranquillity of the State.

By the constitution of this State, Art. 9, Sec. 5, it is provided, that "Every person holding any civil office under the State, may be removed by impeachment for misdemeanor in office; and 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." It is provided in art. 4, part second, section 7, that the sénate shall have power to try impeachments, "but the party, whether convicted or acquitted, shall nevertheless be liable to indictment, trial, judgment and punishment according to law."

An impeachment would therefore imply some crime or offence against the law for which the accused might be indicted. But there is no limitation in the constitution, of causes as a ground of removal by address. It must must have been intended to embrace cases where there would be no doubt of the existence of the fact upon which the cause was founded, and where it would be incompatible with a proper discharge of official duties to allow the incumbent to remain in office, although the cause would not amount to crime, such insanity, incapacity arising from physical or mental imbecility, a perversity of temper, preventing or grossly impeding a due performance of business, conduct in office practically destructive of society and civil government, whether the opinions upon which it proceeds, are the offspring of an honest, deluded, or factious mind. The people have retained in express language, in the constitution, the power of removal, through the legislature and the executive, of every person holding any office. Such person may be impeached for crime or misdemeanor, or removed for a cause, which in the calm, deliberate, intelligent judgment of those who are empowered to decide, render him incapable, or unsuitable to discharge his duties.

Believing that there is a strong necessity for the act, that the peace and security of the citizens of this State, and a due regard to the execution of the laws demand it, in pursuance of the address of both branches of the legislature, and with the advice of the council:

I do hereby remove Woodbury Davis, and he is accordingly removed from the office of Justice of the Supreme Judicial Court of the State of Maine.

Given at the council chamber, at Augusta, this eleventh day of April, in the year of our Lord one thousand eight hundred and fifty six, and in the eightieth year of the independence of the United States of America. SAMUEL WELLS,

Governor of the State of Maine.

As an argument, this document will not do much harm, or make many converts, and deserves no particular notice; but as proceeding from the governor of a State, and as a possible indication of political or party action, here or elsewhere, and as an act, which may serve as a precedent or pretext for fanatics and tyrants of whatever party or faction, it is worthy to be seriously pondered and closely scanned.

It is to be noticed that Governor Wells makes no imputation on the motives of the judge, and no suggestion against his capacity. He says distinctly, that the right of removal is the same, whether the opinions given are the offspring of an honest, deluded, or factious mind," that he is not removed for his opinion, but because he adheres to it, and either he or the executive must give way. The reason is solely this: :- that the judge "arrayed himself against the whole government of the State," and was in "direct conflict with the government." Who is THE GOVERNMENT? This is new and strange language in a democratic republic. "I am the State," is the well known boast of an absolute monarch. I am the Government, is the quiet assumption of an elected executive magistrate of a republic. Judge Davis set himself against no act of the legislature. He set himself against no act of the governor. He set the constitution against an act of one governor and in favor of the act of another governor. The governor whose act is overruled, has in his hands the power to remove, (though not in this case, the right,) and he sustains his own act by removing the judge, because he "arrayed himself against the whole government of the State!" Who and what is the whole government of the State? When Judge Davis did this act, the legislature had not passed upon it. He did not judicially know that they might not agree with him. He could not know that the governor would not, on second thought. If it had been otherwise, his duty would have been the same. But there is not even this pretext. He could not tell which way the full bench of the judiciary would go. What was "the whole government of the State?" Nothing but an act of the governor, the validity of which he, the governor himself, admits to be purely a judicial and not a political question, and as to which "the whole government of the State" must yield to a majority of the Supreme Court, at any time.

But the governor's argument is answered by his admission that, on the question passed upon by Judge Davis, the Supreme Court has final and conclusive power, and is supreme over both the other departments.

It results, after all, in the simple question, what is the duty of the single judge of the Supreme Court? Here the governor takes the ground boldly, that the judge is to bow implicitly to the expressed will and opinion of the governor, on a judicial question, whatever the statute or the constitution may say to the contrary. The act of the gov

ernor, however contrary to the statute or to the constitution, whenever it comes before a single judge, is the supreme law. No one can call the act in question except on a final issue of law before a full bench of the Supreme Court.

There cannot be a doubt that under our free institutions, any citizen, however obscure, in any cause, however humble, before any judicial tribunal, can fall back on the constitution, and require the court to pronounce upon the constitutionality of any act, whether of an obscure man like himself, or of the governor, or of the entire legislative department. Expediency, discretion, and modesty, indicate to the inferior tribunal, or to the single judge at nisi prius, in a new and doubtful case, where he has no judicial decision to control him, to lean in favor of the validity of the act of a department of the government. But there is no law that requires him to lean either way. On the contrary, the strictness of law entitles a party to a judicial opinion purely, at every stage at which the judge pronounces at all. The act of the governor is not voidable. It is either void ab initio and everywhere, or it is valid to the end, for it is a question of constitutional authority to act. Of this position there cannot be a doubt. But even if the governor's position were the true one, as no bad motive or incapacity is charged, it results only in a different form of an honest mistake of duty by the judge. He thought himself, at nisi prius, bound to follow his judicial opinion of the constitution; whereas, he should only have known who was governor, and what the governor thought about the law, and what he would have him to do.

That Judge Davis persisted in his opinion, and that this persistency might lead to disorder and conflicts, is a reason not fit to be assigned to a people who live under "a government of laws and not of men." If he was right, should he not persist? If he was right, should he yield, and the party in the wrong persist? It all turns on the question whether he was right. If conflict was apprehended, how would it arise? It could only arise from the rejected sheriff refusing to obey the decision of the judge, whom he had compelled to a decision, against his expressed wish. would be responsible for the disorder and scandal that might follow? What would be the remedy for it? It strikes us that it would be as natural a remedy to remove the sheriff as to remove the judge. But neither course was necessary. The decision of the judge, invoked by the sher ff, should have bound him, for the time being, to the extent of that judge's jurisdiction. A petition for manda

Who

mus, or quo warranto, would have insured him the opinion of the full bench directly upon the point, and a habeas corpus, or some other process, might have given it to him, indirectly. The governor, and either branch of the legislature could have required the opinion of the Supreme Court directly upon the point, at any moment. None of these means have been resorted to. They have been avoided. Judge Davis could not compel a resort to them. The case looks very much as though neither the sheriff, nor the governor, nor the legislature desired the opinion of the Supreme Court perhaps rather feared it; but that, for some reason or other, best known on the spot, the judge was compelled to decide the question, and then was removed for making the decision, without means being taken to determine whether he was right or wrong. Suppose the opinion of the full bench had been obtained in the interval, directly upon the point, sustaining Judge Davis's construction of the constitution, would the legislature have removed him for not following the governor's construction? According to the logic of the governor's proclamation, they would be bound to do so. Otherwise, the right of the judge to pass at all on the governor's act at nisi prius, would depend upon whether he decided in the same way with the subsequent opinion of the full bench. If his decision turned out to be right, he had jurisdiction, and should be applauded; if wrong, he had no jurisdiction, and should be punished for usurpation.

The course pursued by all the parties to this removal, and the reasons assigned for it, are of such a nature, that we are forced to the belief that the true "cause of removal" does not appear of record, and lies deeper than the reasons given. It looks like an extreme measure of party policy, adopted and sustained by a governor who was a party to the question decided, and growing out of both a special, and a general cause. The special cause is probably some political question or contest in the State, on the point at issue, or involving the persons concerned. We do not know what it is, and do not even know, and are glad we do not, to what political party the governor belongs, in the present state of politics in Maine. A reason personal to the judge there cannot be, for Judge Davis is admitted by all to be an upright, conscientious, laborious, judicious magistrate, young in years and new in office, but commending himself in a remarkable degree, in his short term, to the bar, to litigants, and to his associates on the bench.

The general cause to which we refer is the notion

which underlies a good deal of political action and language, that the majority or plurality of voters at an annual election are the people for all purposes; that the persons whom the majority or plurality elect to specific legislative or executive offices, to perform specific legislative or executive duties under the constitution, are the people for the time being, the "whole government," the "State," and all else mere subordinate functionaries, who must not come in conflict with their will, and if they do so, are to be treated as persons who resist the will of the people. An usurped supremacy of the legislature or executive over the judiciary, is looked upon as a proper supremacy of the people over their servants. The legislature is apt to think itself the people. A declared majority at an election is apt to fill the chief executive with an opinion that he is, in some special manner, not expressed in the constitution, the organ or agent of the popular will. This notion does not, it is true, take the form often, if ever, of a distinct proposition. It could not long live in that form. But we believe it to be, nevertheless, an active and dangerous element in society. Against it must be set up, everywhere, boldly, firmly and without delay, the great American principle, that the will of the people is to be found in the constitution. There it is garnered up, and there that will is daily and hourly repeated and re-affirmed, so long as the constitution is not altered. The will of the people is, that this constitution shall bind the majority of the people. The will of the people is, that a department of government shall be established, charged with the duty of holding the temporary majority of voters, the dominant party, the legislature and the executive, as well as the single citizen, to this constitution. This is a duty no judiciary in the world ever has been, or is now charged with, out of America. To enable this department to do this duty to the people, to execute this great resolve of the people faithfully, learnedly, independently, the department is guarded against not only the control, but the undue influence of the temporary majority, of the legislature, and of the executive. Unless it is so effectually guarded, the great American idea of constitutional control over majorities and over departments, may be abandoned. The constitution will be not a law, but a book of maxims; not a control, but advice; and our government will be not a constitutional and limited, but an absolute and unlimited democracy; or, more correctly, in Mr. Jeffer son's words, "an elective despotism."

As there is no precedent for this act of the legislature