The Union and eastern journal. [volume] (Biddeford [Me.]) 1854-1858, 1856-04-25

nrought oefore MIN, not Dy MS own seckhhb
or desire, but by party, insisting under
commission from the Governor, upon right
70 displace a person then in actual employ
nent as an officer of the Court, by virtue oil
q commission from the Governor, by him
also produced and exhibited, as the evidence
Of his right and claim 10 be 20 employed
This new claimant was heard in Court, by
learned counsel, who insisted that the
question was one which, from the necessity
Of the case, the presiding Judge must de-
eide, and could not avoid " that, thus
pressed, he did decide, 10 far "a the necessi-
ty of the case required, that the incumbent
should remain in the Court as Sheriff, ana
stated the reasons for his decision openly
and fully that the counsel for the claim
ant had some days before notified him that
such claim would be made in Court, in
order that he might be prepared to meet and
decide IL; that the question was purely Ju-
dicial in lis nature, and could only be deter
mined by the judicial department; that a
single Judge, sitting at RiS prius, Is cloth
cd, with regard 10 constitutional rs well as
10 other questions in the first instance, with
all the powers of the Supreme judicial
Court, subject to such revision, BY the whole
Court, Us the law provides; that all ques-
tons arising before such single judge, must,
in the first instance be decided by him, and
he has no power TO refuse to decide any
such question when presented, or to send
any such case or question TO the full Court,
until he has first himself decided it; that IL
the question is one which may be carried up
for revision, it Is the duty Of the party, or
his counsel, to make the request and take
the proper steps to present Il for decision
10 the whole Court and IL this u not done,
or in cases, IL any such there, arc, in which
il cannot be done, the decision of the judge
must stand, as far as il extends, as the law
of that case that Judge Davis limited the
opinion and decision, by him 30 given, care
fully and most expressly TO the question then
before him, and simply determined not to
displaco the incumbent so far as his services
and duties in Court were concerned. leaving
the general question and its final determine
ton 10 the judicial department, whenever
the same should be properly presented that
he did no more than the Necessity OF the
case required, to preserve order in his court,
to enable it TO proceed undisturbed in trans
acting its business, and to prevent the dis
graceful spectacle Of duplicate officers act
Ing in the same business at the same time !:
that the fact that the claimant presented a
recent commission from the Governor, did
not take the question from judicial eogni-
zlnce; that the incumbent OF the Office, or
any other citizen whose individual or per-
sonal rights, by this decision, were injuri-
ously affected, has right TO require de-
clsion. from the judicial department, wheth-
or the Governor had, Mt the time OF issuing
the commission, the power ~ to do under
the Constitution that any other construc-
ton would make any commission from the
Governor, to any officer in State, County or
town, valid and operative, and give, in effect,
the unlimited power, in the first instance, OF
appointment 70 the executive even in cases
in which he has nanilestly no authority Of
appointment.
Admitting il to be true that every -sepa-
rate department of power has right to act
independently in its prescribed limits, and
must ordinarily, in the FIRST instance, judge
for itself of the extent Of it's powers, still
there must be lodged somewhere, for public
and individual protection, the right OF de-
termining whether controyerted assumption
of power il within the constitutional limits.
This right Is given 70 the Judiciary, The
Judiciary exercises this power whenever any
question arises requiring determination by
a single Judge, and his decision is the law
of the case, subject to the revision by the
full Court, to which either party may legal
ly carry IL up for that purpose. No differ
emit rulo is rscognilSl in relation tn such
matters as involve constitutional questions.
Such questions must be decided as all other
questions are. unless some branch Of the
government which has the power 50 TO do,
requires, and obtains in regard to them, the
opinion Of the Supreme Judicial Court.
Judge Davis had such question before
him. Neither the Governor, the Council,
the Senate, or the House had obtained, as
each might have done, n final decision Of the
controverted question. lie was compelled to
decide il, TO the extent he did pass upon it..
lie gave an honest and conscientious opin-
ion. No exceptions, If any would pro-
perly lie, were taken, He did no more
than his duty, and he did that with dignity
propristy and fairness attempting no stretch
Of his prcrogatiye, and simply doing his
duty in the case before him. And for this
honest performance Of duty imposed upon
him against his wishes, he is hunted down
and sacrificed, his Office is taken from him,
and as far as such sentence can affect his
character and his future prospects in life, he
must bear the consequences.
The acts of Judge Davis of the subse-
auent Term of the Court in March, were
such as his duty required, and the law justi-
| fed. Nothing had transpired in the inter
i'm which had changed the facts, or affected
the question before decided; and having
seen no cause 20 change IL, he then merely
re-afirmed his former judgment. His acts
in sending for the prisoners were indisputably
demanded by the state Of affairs, and were
strictly legal and neccsSry; and it is not al.
lcdgcd or shown that any wrong was there
by done 70 the prisoners, or to the State, or
the prison-keeper.
The undersigned do not deem il at all
important in reference to the charges TO
consider whether the decision Of Judge Da-
Wis is such rs will bc sanctioned and confr-
med by the full Court; the issue of this accu-
satlon does not depend upon the correctness
or incorreetness of that opinion. Ii he had
right to gi.e decision, and he did give
an honest opinion, he strictly performed the
duty of good Judge. That is all that
could be required Of him. That opinion
has the sanction Of very many of the ablest
jurists of our own and other States, and
without assuming 10 decide il, we unhesita-
tingly express our belief that it will be sus-
tanned hereafter. Weprotest against his rc-
moyaf because he IL an innocent man, suffer-
ing for no fault of his own, but only, his
enemies being judges, for mistaken opinion,
honestly entertained.
3. Bccanse we believe Judge Davis has
not had fair and impartial hearing, but
that his case WIS prejudged and predetcr-
mined before any causes were entered ON the
Journal Of the Scnate-in places other than
the Halls Of legislation, and under influences
und on grounds other than those apparent
in the legislative aetion-and we protest
against his removal because we believe he
has been politically, and not judicially con-
a. a. a. 4 r A