Eastern times., 1856-03-27
The Davis Case.

that these distinct branches move along in har-
mony, each paying due regard to the action of
the other, and each acting upon the presump-
tion of the rightful exercise of power in the
other, until the tribunal To- whom the final de-
cision Of all questions Of such exercise is COM
mitted, have, upon proper presentation, deter
mined otherwise. This final tribunal is the
Supreme Judicial Court, sitting as Court of
LdiO. Upon no other principle, can the pow
er of the state, and the administration of the
various functions of government proceed. Up
on any other principle, this power, and the
acts of either or all of these departments may
be set at naught, and obstructed at the mere
caprice of any individual who chooses TO re-
sort TO violence in opposition thereto, upon
the plea that he does not recognize me action
of such department as legitimate or proper.
Every individual may call in question such ac-
ton, but he must submit thereto for the time
being, and resort to the appointed tribunal to
right his wrongs, in the mode pointed out by
law. Under the constitution as it has stood
from the foundation of the state, certain Off
GERS have been appointed by the Governor,
with the consent of the council) to hold their
Offices four years, or during the pleasure of
the Governor Among these is the office of
sheriff, and 50 long as the executive exercis-
es the power thus conferred, of appointing
such officers and commissions them under the
broad seal of the State, such commissions are
to be duly respected as legitimately and prop
erly issued, by all the people of the state,
whatever their position, whether private citi-
zens, justices of the peace, or judges Of any
court, except only when the law court, prop
erly and legally called upon, and sitting as the
judicial power to settle questions arising as to
the acts of either of the other branches, hear
and decide the character of such acts. The
whole administration of government proceeds
upon the presumption that each department is
first to Judge as TO its duty, and that its judg-
sment must be hallowed and obeyed as the SOW
ereign power, until such judgment be set aside
or reversed by the court appointed to consider
and determine thereon.
Now, in what attitude does Judge Davis
stand before the sate9 The most recently
appointed Judge, having occupied his seat up
on the bench but very short period of time,
possessing but slight experience in legal prac-
lice, we might, at least, have anticipated some
modesty upon his part and some hesitation in
setting himself in direct conflict with the ex-
ecutive, even if required by proper process
to pass upon the question, and that he would
have followed the manifest proprieiies of the
case and like every one of his associates who
have been placed in similar circumstances,
would, as matter Of course, have recognized
the commission of the executive, issued under
the broad seal OF the state.
But so far from this, in January last, this
Judge assumes, though not member of the
Law Court-though sitting alone at nsi prius
though no process was before him-though
no facts had come to his judicial knowledge
save the fact shown by the commission of Mr..
Emery, that he had been appointed as sheriff
to exercise the prerogative of the Law
Court, and to declare, in his own person. that
one of the departments of the government had
usurped powers not belonging to it, and that
he and others might lawfully resist its acts,
even to violence. This assumption was deli6-
crate, and undertaken TO be sustained by an
opinion written before the session of Court, and
before any question had arisen, and was drawn
from the Judges pocket, and delivered as
merely uo'unteer opinion, pre-conceived and
predetermined, and to be put through at all
hazards. Such is the revolutionary attitude
assumed by this Judge in January. Such is
the nsurrectionary doctrine then promulgated
by him from the bench to those OF the commu-
nifty who were desirous 10 obstruct the admin
istration of the laws, and willing TO defy by vi
olent acts of resistance, the power of the state.
The dangerous tendencies of such gross per-
version of duty upon the part of one holding
high judicial position. have been fully illus
trated by the nsubordinaioh and open rebel
lion to authority which have in various por-
tions of the stale, followed such promul ulgation.
But the more recent acts of this Judge in
his obstinate refusal to take counsel from the
course pursued by his associates, and in his
persistent determination TO continue the same
opposition TO the other departments of govern
ment, and under circumstances rendering such
opposition even more revolutionary and unjus-
.lfabe than the acts in January, demand con-
sideration.
Subsequently to January, the Legislature
investigated the subject of the constitutional
amendments, and declared that the first amend
ment, as to the striking OUT had not been
voted upon or adopted, and also declared the
sense of the Legislature, as to the time when
such amendments as had been adopted, took
effect, and also what that effect is.
Then not only the executive, but also the
legislative department had taken action upon
these matters which action was, at the March
term of the court of Cumberland county, in
the knowledge of the said Judge, and which
he surely should not have ignored or con-
iemned. But, bent upon maintaining his false
position, and dsregarding the teachings which
the acts of violence consequent upon his prior
course should have led him to pay heed to, he
not only persists in defying the authority of
the State, and refusing to recognize the Off
GERS appointed, as his associates have done, but
resorts 10 unwarrantable proceedings to wrest
from the hands of one of those officers the per-
sons in jail, who were in his lnwful and prop
er custody, and for whose safe keeping he was
responsible, and from whose possession Judge
Davis had no lawful right or authority 10 re-
move them. Such acis on the part of one
self-moved judicial officer, cannot be otherwise
regarded than as gross violation of duty, an
unprecedented assumption OF power, as revo-
lutonary in its character, and as perncious
and dangerous in its effects, and tending to and
inviting insurrection and violence. Under
! such state of things, how can government
move along, unless such conduct receive its
merited rebuke, and such dangerous attacks
upon the several departments be put an end to
J by the constitutional remedy1 1t has been
the good fortune of the State for thirty-six
years that lis government should be respected
by those composingits several branches. New
er before have such high-handed and reckless
acts upon the part of any one of lis officers,
been witnessed. Never before has a Judge
upon the bench deliberately attempted to au-
thorize resistance and resort to violence upon
the part of others, by his own refusal to rec
ognlze the commission of the executive :