The daily exchange. [volume] (Baltimore, Md.) 1858-1861, 1858-04-03
REMOVAL OF JUDGE LORING.

10 THE INHABITANTS OF THE COUNTY OF SUFFOLK:
Having been removed from the Probate Court of
the county by the Governor of the State on his al
legation that had disobeyed constitutional stat
ute, seek to remove from nv conduct an impu-
tation made serious by the official position of my
accuser.
The Legislative Act of 1855. c. 4S9, is part of
the history of the times. In that year the Execu-
tive OF the State upon the authoritative opinion of
his constitutional legal adviser, the Attorney Gene
raj OF the State, refused his official sanction to the
Act, on the ground that it unconstitutional In
1881, the Joint Committee of the Legislature re-
ported that the Act was unconstitutional In 1858
the JOINT Committee of the Legislature discfaim-
ed its use as an obligatory law and the Senate BY
Its vote refused to adopt it, the of its ac
ton.
Under these circumstances Governor Banks has
IOrDOrne his constitutional right of seeking the
opinion of the Supreme Judicial Court upon the
constltutlonaity of statute thus discredited and
has made his own opinion on the question of law
involved in it, the only avowed ground of his off
cal and extreme procedure If he has obtained any
other opinion, it is not shown to be either of those
which the Constitution had provided for his guild
ance in matters of law, and which it has thus made
Official, and to be delivered under that official re-
sponsibity, which is the only defence of the public
against opinions purchased and moulded by corrup-
ton for party purposes
The Constitution of Massachusetts declares EN-
phatically, and provides carefully, for the indie
pendence OF the Judiciary; and to ensure it, it
=,
and among other things for that end, it prescribes
the incompatibties of judicial offices and thus re-
moves that subject from the action of the Legisla-
ture For if the Legislature could annul an incom-
patibility, declared by the Constitution they could
destroy its safeguards. And if the Legislature
could create ncompatibilities, not declared by the
Constitution, they could battle its purpose and de-
stroy the independence of the Judiciary. For the
power which can create mcompatibilities of office
for Judges, controls the judiciary it may prescribe
! to Judges, the societies parties to which they
shall adhere, the property they may own, where
they shall live, and what hey shall wear. If the
Legislature of Massachusetts cannot do all this it
is because they have not the power of declaring
any incompatibility of judicial offices, for they
must have the power altogether or not at ALL
They have not the power, because the Constitu-
ton has itself regulated the matter-because the
Constitution has not expressly given it to them and
their possession of it would be inconsistent with and
destructive to the avowed purpose of the Constitu-
ton in regard to the independence of the Judiciary
Inc Legislature may "erect and create judicato-
rles, for they are expressly authorized so to do,
but this is to appoint functions not to declare in
compatibilities, or the terms of judicial tenure
which for the judges of the Indicators they create
must be those and only those which the Constitution
has prescribed
The 18th section of the act of 1866, chap 4s9,
sought to create an incompatibity in judicial Off
ces, and for the have stated believed that
1t violated the Constitution, and therefore did not
obey 1t. Ii that section is consitutionay nv off
cal position made my refusal to obey it, misconduct
an my office, and punishable by impeachment ac-
cordng to the forms prescribed by the Constitution
for lmpeachable offences, and then my punishment
without such constitutional forms, is in itself a
Migrant nractlon OF the purpose and letter of the
Constitution: for it involves, and is claim on the
part OF the Executive and the Legislature to create
lmcompatibilities of judicial oces-to dispense with
trlal by impeachment for improbable offences-to
determine conclusvely the constitutonalitv of their
own laws and to carry them into execution by their
own processes The probability and the peril of all
tins, Will be the greatest, when the action of the
Legislature of Massachusetts shall be controlled by
party, and her Executive shall be the prostitute
of party.
Neither the Executive nor the Legislature are
the Judges of the constitutionality of law.
for the action of others: and every MAGISTRATE
ana every citizen, must determine that oues-
ton for himself, subject to the decision of the
Judicial tribunal, made authoritative over him bv
the Constitution. The refusal to obey an unconsti-
tutiona statute, is the only lawful means by which
posed; and it is only by obeying constitutional
statutes and refusing to obey unconstitutional
statutes that citizens and magistrates can perform
their duty, and fulfill their oaths '.to support the
Constitution
But the usurpton of the power to create incom-
pabities of offices, threatens and assails not only
the independence of the judiciary, but the indi-
vidua right of all the inhabitants of this Common
wealth, having such qualifications are establish
ed by their ''frdae of Government" to hold public
employments. For if the Legislature can create
incompatibities for public employment regu-
lated by the Constitution they for ALL If they
can create incompatibilites as to officers appointed
by the Governor, they create incompatibilities
for officers elected by the people, and thus fetter
and destroy that equality of right which the Con-
stituon assures, for the power to declare quaiica
tions for office is the power to declare who shall be
officers.
Respectfully your fellow citizen,
EDWARD G. LoRING.
Boston, March 81, 1858.