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ation and the opportunities of national glory; nothing to the sober, collective judgment of the people of all the sections ; nothing to the foresight of some great men — like Jefferson and John Quincy Adams — who loved not slavery, nor the expansion of the area of slavery, but who did love their country dearly and wisely, and knew that that evil would be more than compensated by the exceeding good; nothing to a diffused, vehement nationality, brave, ambitious, conscious of a mighty strength, burning to try itself against the resistance of foreign contact, and finding on its West and South-west border no equal force to hold it back; nothing to the blindness of mere party tactics and the power of a popular administration; nothing to the love of glory, and contention, and danger which flames and revels in the adolescent national heart? Is it all mere and sheer negro-breeding and negro-selling that has done this? More. Is nothing to be ascribed to the influence of Northern aggression against slavery, provoking by an eternal law a Southern rally for its defence and propagation ? Have these great readers of our history forgotten that as far back as 1805, as 1801, the press, some influential portions of the press of a large political party at the North, began to denounce the election and reëlection of Jefferson as a triumph of the slave power;

the acquisition of Louisiana, that absolute necessity of our peace, how much more of our greatness, as another triumph of the slave power ; that this form of sectionalism already assailed the slave representation of the Constitution, and tried to strike it out; that it bore its part, a large part, in inflaming New England to the measure of the Hartford Convention; that, hushed to silence by the fervid flood of nationality which swept the country at the close of a war, breathing into us the full first inspiration of American life, it awoke again on the application of Missouri for admission; that, silenced once more by that adjustment, a few years later it took on the more virulent type of abolitionism ; and from that moment, helped on by the general progress of the age, it has never ceased for an hour to make war on the institutions of the South, to assail the motives, and arraign the conscience of the slave-holder; to teach to "abhor" and to avoid ” him, and denounce the Union as a compact with hell? Is it not possible that a part of what they call the aggressive spirit of

slavery may be reäction against our own aggression ? May it not be, that in this recrimination of the sections, and in the judgment of history, there may be blows to take as well as blows to give ? That great man whose name I have spoken, could see, and he dared to admit, the errors of both sections. In those errors, in this very hate and this very dread which the new party would organize, he saw the supreme danger of his country. To correct those errors, to allay that dread, to turn that hate to love, was the sublime aim of his last and noblest labor. “I am looking out,” he said, “not for my own security or safety, for I am looking out for no fragment on which to float away from the wreck, if wreck there must be, but for the good of the whole, and the preservation of all. I speak to-day for the Union! Hear me, for my cause !” He could not have abandoned himself, he never saw an hour in which he could have any more abandoned himself to this gloomy enterprise of sectionalism, than Washington could have done it, stooping from the pathos and grandeur and parental love of the Farewell Address; than the leader of Israel could have done it, as he stood in that last hour on Pisgah and sure veyed in vision, the wide-spread tents of the kindred tribes, rejoicing together in the peace and in the light of their nation's God. O, for an hour of such a life, and all were not

yet lost.

29 *


[The following history of the case is taken mainly from the Monthly Law Reporter":

At a nisi prius term of the Supreme Court of Maine, held within and for the county of Cumberland, in January, 1856, by the Hon. Woodbury Davis, a question arose which of two persons claiming the office was the lawful sheriff of the county. Mr. Seward M. Baker was in occupation of the office under an old commission, which, by its terms, had not expired, and did the duties of sheriff during the first week of the term. At the end of the week, Mr. Daniel C. Emery and his counsel called upon Judge Davis at his chambers, and informed him that Mr. Emery had received a commission and qualified under it, and should claim the right to perform the duties of sheriff, on Monday. Judge Davis expressed bis wish that the case should be presented to the full bench, and his reluctance to pass upon it at nisi prius ; but Mr. Emery and his counsel thought proper to present the question to the judge, and it was understood that it would be so presented on Monday morning. Accordingly, on Monday, January 21st, Mr. Emery appeared in court, presented his commission, and his claim to this office was argued by Judge Howard and the Hon. Nathan Clifford in his behalf. They contended that the executive had the right to remove the incumbent and appoint a new sheriff, and that the judge must, from the necessity of the case, pass upon the question. At the close of their arguments, no argument being made in behalf of the incumbent, Judge Davis, alluding to the newness of his own position on the bench, and the longer professional experience of several members of the bar present, invited suggestions from the bar. His invitation was responded to by Hon. Samuel Fessenden, who controverted the positions of Mr. Emery's counsel, and contended that the governor had no power, under the amended constitution, to make the removal and appointment in ques. tion. The doubt arose upon the effect of an amendment of the constitution, recently adopted by the people. Before the amendment, sheriffs were appointed and removed by the governor. The amendment made them elective, and expressly took away the power of appointment from the governor, except in case of vacancies. The time for an election had not arrived. It was urged on behalf of Mr. Emery, that the amendment, though adopted by the people, and passed upon by the governor and

council, had not become a part of the constitution when the governor issued the commission. And, if it bad become a part of the constitution, yet, as the time for an election had not arrived, and no officer had been elected, the effect of the adoption of the amendment was either to create a vacancy at once, or to leave the officers under the power of the executive as before, until the election. It was replied that the amendment was in full operation when the governor issued the new commission, and that he could not, under that amendment, create “a vacancy” within the meaning of the amendment, by merely issuing a new commission ; and that the adoption of the amendment did not of itself create vacancies in the offices it affected, but left the old commissions alive until the new officers should be elected, and in terms took from him the appointing power, except in those cases. There was no question of fact in issue between the parties, and Judge Davis, after expressing his regret that the question came before him suddenly, at nisi prius, and not in banc, admitted the necessity he was under, from the nature of the case, to determine which of the two claimants he should recognize as sheriff

, and gave his decision in favor of the incumbent, Mr. Baker. He limited his decision within the closest possible bounds, deciding only that he should, under the present circumstances, as at present advised, recognize and employ the incumbent as the lawful sheriff for the purposes of the court, and expressly refusing to pass upon the general question of title and the validity of the commission, beyond that. No opposition was offered to this decision, no appeal taken, and no steps to bring the question before the full bench, by mandamus, quo warranto, or otherwise.

The March term of the court for the same county, for criminal trials, was held by Judge Davis. In the interval, Mr. Emery obtained possession of the jail by force, and appointed a keeper of the prisoners. When it became necessary for the prisoners to be produced, on motion of the county attorney, the judge, in the usual manner, sent an officer in attendance, with verbal orders to have the prisoners produced. The keeper refused to obey the order, and the judge then issued a capias to an officer, commanding him to bring the prisoners, and directing the keeper of the jail to deliver them to him. This precept the keeper complied with, and no further difficulty arose during the term.

The legislature of Maine assembled soon after ; and on the 19th day of March, the senate passed substantially the following resolves :

Resolved, That the senate will proceed to consider the adoption of an address to the governor, for the removal of Woodbury Davis, one of the justices of the Supreme Judicial Court, for the causes following:

Because the said Davis has refused to recognize Daniel C. Emery as the sheriff of Cumberland County :

Because the said Davis, in his capacity of judge, denied the validity of the commission issued to Daniel C. Emery :

Because the said Davis removed by unlawful proceeding certain prisoners from jail then in the custody of Emery :

Because the said Davis has recognized as the sheriff of said county another person who had before been lawfully removed from that office, and has undertaken to issue the orders of the said court, to be executed by the person who has been so removed from office:

Because the continuance of such acts, proceedings, and assumptions of the

said Woodbury Davis tends to produce insubordination, confusion, and violence; is of dangerous and pernicious example; confounds the distribution of the powers of government; and tends to the subversion of the actual, constituted, and lawful authority of the State.

The constitution of Maine contains the following provision, (Art. ix. sec. 5,) under which these proceedings were had :

“ Every person holding any civil office under this State, may be removed, by impeachment, for misdemeanor in office; and every person holding any office may be removed by the governor, with the advice of the council, on the address of both branches of the legislature. But, before any such address shall pass either house, the causes of removal shall be entered on the journal of the house in which it originated, and a copy thereof served on the person in office, that he may be admitted to a hearing in his defence.”

The above constitute, it is believed, all the facts necessary to a full understanding of Mr. Choate's argument in this case, which was pronounced by very eminent authority as “ a valuable addition to the constitutional literature of America, and one that will fully sustain Mr. Choate's great reputation as a jurist, orator, and scholar.”

After the close of Mr. Choate's argument the Convention dissolved.

The address on the subject was carried in the senate by a vote of twenty-five to three ; and in the house by a vote of eighty-one to sixty, nearly or quite a party vote, as we have been informed, in both places Fifty-nine members of the house offered a protest against the address, which the house refused to receive.

It is proper to add, that the legislature which removed Judge Davis also abolished his office, probably for the purpose of clinching the remoral. It had this effect for a time, for the Supreme Court, finding that there was no question between different claimants for the office, did not think it necessary to pass upon the general questions involved in the action of the other branches of the government. But it also left an easy way of redress ; for the legislature of 1857 happening to differ in politics from their predecessors, renewed the office ; and Judge Davis was appointed to fill it.]


I cannot permit myself to proceed a step in this discussion, until I have relieved my heart, by the warmest expression of thanks to you and to the Convention, for your kindness to me personally. That kindness has not restored me to perfect health, but it has impressed me with a sense of gratitude and obligation, which neither sickness nor health will ever efface or abate.

It will at the same time occur to you that I am placed der some peculiar embarrassment, from not having had the pleasure and help of listening to the arguments of my associated counsel, which are represented from all sources to have

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