OF

RICHARD H. DANA, JR. ESQ.

BEFORE THE

COMMITTEE ON FEDERAL RELATIONS,

ON THE

PROPOSED REMOVAL OF EDWARD G. LORING, ESQ. FROM

THE OFFICE OF JUDGE OF PROBATE.

MARCH 5, 1855.

BOSTON:

PRINTED BY ALFRED MUDGE & SON,

No. 21 SCHOOL STREET.

1855.

REMARKS.

MR. CHAIRMAN AND GENTLEMEN,

The Legislature has been petitioned to address the Governor, for the removal from office of one of the Judges. This judge is a Judge of Probate, holding an inferior jurisdiction, it is true, and on a small salary, but the Constitution places all the judges on the same tenure, and what may be done to one may be done to all. The petitioners do not ask you to remove this judge without cause. In whatever form the reasons may be cast, the true and controlling reason is, that, as a Commissioner of the United States, he sent back a man into slavery. The petitioners submit the case to your consideration, and desire you to take such steps as the law and your duty suggest to you. The governing motive of the petitioners no doubt is that Massachusetts may do an act which shall both demonstrate her hostility to the Fugitive Slave Law, and punish a man who has executed it.

A number of citizens, yielding to none in their hostility to the Fugitive Slave Law, in their condemnation of the rendition of Anthony Burns, and in their fidelity to the antislavery principle, yet entertain grave doubts of the propriety and expediency of this course. These citizens, of whom I am one, have addressed a remonstrance to the Legislature, setting forth their opinions and their apprehensions. If this were a question between Mr. Edward G. Loring and the Probate judgeship, if it were a question between Mr. Loring and the Legislature, we should not have intervened. But it was truly said by the learned historian and able controversionalist, on my right, [Mr. Hildreth] in his address to you a few days ago, that this is a matter of public concernment, touching the rights and interests of all the citizens. We fear that you are in the situation in which you are asked,—

"To do a great right, do a little wrong."

GENERAL LIBRARY. ANN ARBOR, MICHIGAN 7-223

REMARKS OF R. H. DANA, JR.

3

And we believe the reply should be, still in the words of
the great poet :

"It must not be,

'T will be recorded for a precedent;

And many an error, by the same example,
Will rush into the state: it cannot be "

I had hoped, Sir, that others of these remonstrants would
have appeared here to address you. But they have devolved
the sole duty upon me. I must desire especially, then, Sir,
to have it distinctly understood that I appear here merely as
one of these remonstrants, only as a citizen, having a com-
mon interest with you all. I am here in no professional
capacity, the counsel or attorney of no man. I should
disdain to appear before you, on a question of state, to be
determined on reasons of state, on an issue like this, as the
retained counsel of any side or any interest. I desire to have

it understood, too, that I, as well as the remonstrants whom
I represent, am entirely disconnected from Judge Loring and
his personal and political friends. We do not coincide in the
doctrines of his remonstrance, or altogether approve of its
spirit. My personal relations with him are slight, only those
incidental to our common profession. He has never crossed
my threshold, nor I his. And his peculiar friends have not
been mine. I will go further, Sir, it is my own feeling, and
I know it is that of some of the remonstrants whom I repre-
sent, that we should be glad to see one act showing that
Massachusetts is in earnest; and merely personal considera-
tions for a judge, who for his own benefit continued to hold
another office, one he knew might require him to return a
man into bondage, ought not to weigh a feather's weight
against it. If we thought you could justly and safely grant
the prayer of the petitioners, if we thought it consistent with
the dignity of Massachusetts, should not remonstrate.

Allow me to say, gentlemen, that there is one thing which
should be clearly settled in our minds, in the mind of every
one, before we can advance a step to the consideration of
this subject. From the course of the discussion heretofore,
I should apprehend that those who address you may be di-
vided into two classes, those who reason upon the Constitu-
tion, and those who reason in spite of it. We hear a good
deal about the people removing their judges, and the people
holding the judges accountable to them. Some gentlemen.
reason as if the Legislature were the people, and the judges.
something else. They reason as if every limitation on the
power of the Legislature were a limitation on the power

of the people. The people of Massachusetts declare their supreme will, their highest law, in the Constitution. Every day they re-affirm this will. Recently, a year ago last November, they rejected all the amendments to the Constitution proposed. But every year, when they do not alter it, they re-affirm it. It is to the Constitution that we are to look for the voice of the people. The Legislature, the Executive, the Judiciary, are the several "substitutes and agents” of the people, having their respective powers and limitations of powers. The people are as the lord of the vineyard in the parable, who taketh his journey, and giveth to each servant his duty, and setteth the porter to watch. To limit the power of one department, or to defend the privileges or prerogatives of another, is not to limit the power of the people, but it is the people itself, in its sovereign capacity, apportioning its delegated powers, and balancing one against another. The people have adopted for their frame of government, a constitutional republic. They have acted upon the great and wise. principle that the distribution of power is the safeguard of freedom, and the accumulation of power the essence of despotism. They have, therefore, distributed the great powers between the three departments, and they have intended each shall be, in the main, so far as is consistent with the ends of government, independent of the other. One of these departments is the Judiciary. Its ordinary function is to decide questions between man and man. Its highest function is to stand between the Constitution and the powers that be. Its noblest office is to protect the weak and the few against the many and the strong, the minority against the majority, those out of power against those who are in power.

The Legislature is by far the strongest department. It holds the purse and the sword. Its power of making and unmaking all laws, its numbers, its popular character, its public action, and its facilities for immediate communication with the people, its ready access to the public ear and public sympathy, are great elements of power. The Executive is strong from its position of command, its concentration of power, and its rapid action, and above all, as the power of appointment and removal is exercised now, from its patronage. The Judiciary is inherently weak. It is few in numbers, it has no patronage, the judges are usually elderly and retired men, they have, or should have, no political influence, and have many unpopular and odious duties to perform; and in public conflicts, decorum and usage enjoin upon them silence. The people have seen this, and have desired to strengthen the