Worcester daily spy., 1858-03-10

Judge of Probate of Suffolk County. 1t is a
clear, concise and able document, stating in
the plainest and most unequivocal language
the reasons why such removal should Se made,
and we trust that they will have sufficient
weight with the Legislative aud Executive to
enable them without farther delay, to remove
a man from office, who has too long filled it
to his own. diseredit aud to the dishonor of
the State:
The Constitution provides that " all Judi
cial officers duly appointed, commissioned,
and sworn, shall hold their offices during good
behavior, excepting such concerning whom
there is a different provision made in the
Constitution; provided, nevertheless, that the
Governor. with consent OF the Council, may
remove them upon the address of both Hou-
ses of the Legislature. The exercise of this
right in the hands of the Governor and Coun-
Gil, and the two branches of the Legislature
is unrestricted. Any reasons. unless it may
be such as are based on misconduct and mall
administration in office which may seem suf-
6cient, will just fy removal by address.
In the year 1910, Edward Greely Loring
was appointed Commissioner of the Circuit
Court of the United States, +" to take atfida-
vits'' pursuant to the acts of Congress passed
in 1872 and 1877. In lS47 he was appointed
Judge of Probate for the county of Suffolk.
AT that time, under the act of Congress of
1898, jurisdiction in all cases of the extradi-
ton of fugitives from service or labor was
vested " in any magistrate Of county, city,
or town corporate The duties imposed
upon Commissioner at that time, though
enlarged by acts of Congress subsequent to
1910, were of such character that perhaps
no valid reason existed why the offices of
Judge of Probate and Commissioner of the
United States should not be held. and their
separate functions discharged, by one and the
same person. But by the act of Congress
passed in 1850, the Jurisdiction in question
was transferred to the Commissioners of the
United States, and in the language of that
act, Edward Greely Loring, as one of those
Commissioners, was "required to exercise
and discharge all the powers and duties con-
ferred by this act This transfer increased
the duties and responsibilities of the Commits
sioner, and so changed their character that
the holding of that office became, in the opin-
ion of your committee, incompatible with the
holding of the Office of the Judge of Probate.
A faithful discharge of the duties of the one
O6CdmG lncOuSlStSuJ WILL the pIUpCI OlsCHdES0
in all cases, with the duties Of the other A
single illustration will suggest the conflict
which might arise in the exercise ofth pow
ers and duties imposed by the two Offices A
slave mother dies in Massachusetts, and her
childreA are brought before the Court of Pro-
bate for the appointment of a guardian. The
Judge of Probate, by the laws OF Massachu-
sets, is for the time their protector and
friend, and while the hearing is pending. the
same Judge, in the capacity of Commissioner
is called upon to issue warrant for their sci
zure as the property Of Southern slave
owner.
Again, the Constitution provides that s'the
Judges of Probate Of wills, and for granting
letters of administration, shall hold their
courts at such place or places, on fixed days,
as the convenience of the people shall require;
and the Legislature shall from time to time
hereafter appoint such times and places"
These times and places have been fixed by the
Legislature agreeable to the wants and con-
of the people. 1T must be apparent
that the assumption or occupation by any
judge of Probate, of any office, whose duties
might interfere with the discharge of his Pro-
bate duties at the times and places thus con
stitutionally prescribed, is improper, and often
due notice, is sufficient cause OF removal.
1t cannot be denied that judicial office un-
der the laws of the United States, whose
duties are-compulsnry upon the incumbent,
MAY be incompatible with a judicial Office
under the laws of Massachusetts, whose du-
ties are no less compulsory. Now no limit is
to be presumed to the amount of duties to
which a commissioner may be called upon to
perform. If the discharge of the duties of
Commissioner were voluntary, under the act
IF 1Q5n ho rapr Of tba oAE
might be unobjectionabe, but in the Lam
guage of Judge Loring, in his protest, in 1856,
''the duties of Commissioners of the Circuit
Courts of the United States under the law of
1850 is imperative upon them,' and San ap-
plication made pursuant to law to any one
Commissioner fixes that duty on him, and
after such application he can neither decline
or evade it.
1t is clear, that even if such applications
were rare, they might be made at the very
time fixed by the Legislature for the perform
ance of his probate duties, and if numerous
they might prevent the performance altogeth.
er. The fact that during the trial of Antho-
ny Burns such a conflict existed, or compelled
Judge Lorlng, in the discharge of his duties
as Commissioner, to adjourn the Court Of Pro-
bate and postpone its business, sufficiently
confirm the incompatibility in question.
But the duties of Commissioner in connec-
ton with the extradition of fugitive slaves are
not the only duties which might conflict with
the proper discharge of the duties of Judge of
Probate. Pursuant to several acts of Con-
gress, passed subsequent to the appointment
of Judge LoIing as Commissioner in 1910, he
is liable to be called to act in cases of extradi-
ton of fugitiyes from justice from foreign
countries, and issue warrants and hold pre-
liminary examination, in cases of revolts, mu.
TIMES, and atfrays, on shipboard, and great
variety of crimes and offences committed on
sea and land within the jurisdiction of the
United States. These duties enlarging from
year to year, and still farther in constituting
the Office of United States Commissioner,
such an Office cannot with propriety be Held
by judicial officer under the laws of Massa-
chusetts. When we add to this interference
of official duties their opposite and conflicting
natures, the incompatibility is the more mani
fest.
This incompatibility mas been long since
recognized by the laws of the Common wealth,
and the resolves of successive Legislatures.
The laws of lS43, though applicable to mag
istrates Of shis Commonwealth in the per-
formance of the duties imposed upon them
by the act Of Congress of 1898, was clearly
indicative of the determination of the people
Of Massachusetts, that NO magistrate or judi
cial officer shall participate in the extradition
of slaves. The sentiment and spirit of that
law are as clearly violated, whether that par
ticpation is had by magistrate of Massachu-
sets, as such, acting under the law Of 1893,
or by Commissioner Of the United States,
acting under the law Of 1850, who is at the
same time judicial officer under the laws of
this Commonwealth. In conformity with the
spirit of this law, the Legislature declared by
resolve, in 1850, "that the sentiments Of the
paop1a of Maaaaohuaafta au avDroasad l., ~ AZ.