The Union and eastern journal. [volume] (Biddeford [Me.]) 1854-1858, 1856-04-11

position upon the Bench, and his anxious
desire TO Be- guided by oil the suggestive
Of the members OF the Bar. upon
the principles involved in the question 50
raised; adyerting, also, to tho hct, that no
was conscious Of the much greater proies-
sional experience of several members OF the
Bar, than his own and he therefore IN
yited the expression Of whatever opinions
any gentlemen might be pleased to oher
HIN, on the subject, to aid in correct Judg'
mcnt thereon.
The undersigned, Samuel Fessenden, re-
sponded 10 this invitation for adviscment by
Judge Davis, and urged, with great conn.
dcnce, arguments and opinions, IN respect
TO the alleged removal Of Mr.. Baker from
the Office Of Sheriff, and in respect to the
alleged appointment and commission Oh MI
Emery 10 that Office, in exact opposition 70
those which had been urged by Mr. Emery's
counsel; and he maintained, no less ear
ncstly than did the latter, the total absence
Of Constitutional power in the Executive,
under what he claimed to be the amended
clauses of the State Constitution, to re-
move either the ono officer, or appoint the
other to fill the vacancy 30 created.
No other member Of the Bar proposing to
participate in the discussion OF the matter,
and Mr.. Emery's counsel having closed their
arguments, Judge Davis remarked, in sub
stance, that it was matter of great regret
with him to be called upon to make de.
cision upon question where no aid could
be derived from precedents bearing upon the
subject, and but little time had been Afford
ed for him to mature an opinion Of his own,
nor BY consultation with other members Of
the Bench that he knew nothing OF the
purpose to present such question for his
decision, until on the preceding Saturday,
III being then Monday,) and although he
had bestowed upon it whatever reflection
this short opportunity had afforded, he could
not claim for any conclusions to which he
had come, the same weight and worth, as
he might do, under other circumstances -
that, as decision was required, and as he
was expected to make one, he did not desire
to evade any just responsibility that per.
tanned to his position; and he supposed II
was encumbcnt upon him, when the ques..
ton is raised to determine who are the legal
officers to be recognized in conducting the
business of the Court for the time being
Yet he would have much preferred having
had the question, IN some form presented to
the full Court, or On opportunity for their
adyisement upon it, which he could not have
upon this short notice. :,
He said he had listened attcntivtly to oil
the arguments and suggestions which had
been submitted on the one side and the 9th
er, and although the result to which he hat
come, might not cover all the rasons anc
arguments which had been presented, these
were not changed from what no had prepar
cd to offer as his conclusions, and which HI
would submit as he had written them.
After advcrting, orally, to the duties o
the conflicting commissions, and to some o
the prominent features and principles Of thu
case represented, and the action Of the Gov
ernor and Council upon the returns of vote
upon the amendments to the Constitution
relating to the subject, no proceeded to reat
his written opinion, which was the same n
appeared in the city papers OF Portland OF
the then succeeding day.
No conflict of facts, or Of statements wa
presented in the opposite views of the coun
sci, before mentioned, in respect to the ex
istencc, or dates, or completeness in form, o
either of the two commissions; nor in re
spect to the fact, that the Governor ant
Council had duly counted the votes, ant
acted upon the returns made of the votes b,
the people upon the amendments to the Con
stitution or the fact, that the Governor ant
Council had decided, that those amendment
had been adopted by the requisite votes o
the people. And the fact that necessit,
had arisen, and was then presented, render
ing it proper and imperative upon the Pre-
siding Judge to decide this question of con
licting titles to the Office of Sheriff, was no
only conceded but urged upon tho Judg
with great emphasis by the counsel OF Mr.
Emery.
Such, We respectfully declare, are the facts
without discolortion, or partiality, as VI
know them 10 have transpircd, and subStan
tally the whole Of the facts bearing upon tn
subject.
We submit them, not as partizans for, o
against any side, or any persons; but, us
true record of facts for your consideration II
the matter of hearing before your HONORABLE
body, to which Judge Davis has been sum
moned In his defenee--and asin duty bound
with respectful consideration, We are you
obedient servants and iellow-citizens.
SAMUEL FESSENDEN,
ID. W. FESSENDEN,
WIN. G. BARR0WS,
ID. HAYES,
JAMES ID. FESSENDEN.
Portland, March %, 1856.
Concurring fully in the within statement
with the addition only, that Judge Davis, IL
the oral part of his opinion, alluded to con
veratlon he had held with one of his asso
ciates on the Bench, understood, however
to have been previous to his knowledge tina
the question would be presented for his nd
judication) who concurred with him, as wa
inferred by us.
j. II. WILLIAMS,