USA > Maine > Maine; a history, Volume II > Part 10
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This had been vigorously opposed in committee by the chairman, Joseph H. Williams, of Augusta, a son of Reuel Williams, but he could find no one to support him and the resolution was passed by a vote of 13 to I. The contest was renewed on the floor of the convention. Lot M. Morrill bitterly attacked the resolution, and Williams made a brief speech amidst "hissing, applause and all sorts of remarks." Ex-Congressman Fuller said that it was the intention of the committee to avoid all mention of the repeal of the Missouri Compromise. Leland of Saco said that he was a Nebraska man but that he considered the resolution unwise. George F. Shepley inti- mated that Lot M. Morrill wished his brother Anson to be elected Governor and declared that "The resolution alone distinguishes us as national Demo- crats and it would be parricidal to thrust it aside." He ridiculed the notion that the Missouri Compromise was one of the ancient landmarks of the Democratic party and concluded with a personal attack on the Augusta politicians.
But if the Democrats refused to speak officially on the question of Nebraska, they were not slow to condemn the existing prohibitory law, which they denounced in vigorous terms, though declaring themselves in favor of a "suitable prohibitory law."
For their candidate they chose Samuel Wells, of Portland. Mr. Wells was an ex-Whig. He had zealously supported "Tip and Ty" in 1840, but a little later joined the Democrats. In 1847 he was appointed a judge of the Maine Supreme Court and served until 1854.
The Republicans were more ready to condemn the Kansas-Nebraska act than to endorse Neal Dow prohibition. A mass convention was held in Portland to renominate Governor Morrill and adopted resolutions reported by a committee, which said nothing whatever about prohibition.
Neal Dow states in his autobiography that the omission of any reference to prohibition was due to the circumstance that several speakers from out of the State had addressed the convention and that it was thought that they might be embarrassed by the introduction of a local issue.
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Perhaps, however, the leaders were glad of an opportunity to dodge the question. But if such was their plan it failed at the last moment. A demand was made for the endorsement of the Maine law, and with the issue publicly raised a resolution was offered stating that "the perpetuation and execution of the Maine Law are among the fundamental issues of the Re- publican party of Maine." The resolution was adopted amidst great applause and the Republicans stood committed to the new temperance legislation.
The remnant of the Whig party, the Straight Whigs, as they were called, held a convention and renominated Isaac Reed, but it was under- stood that there was no hope of electing him; he was put in to keep some voters from going to Morrill and perhaps to enable the old Whigs to obtain a better price from the Democrats for their assistance.
During the campaign the Republicans laid special emphasis on the Nebraska issue, though they did not fail to beat the prohibition drum when it seemed wise to do so. The Democrats replied by appeals to patriotism, the Union, and fraternal feeling between the North and South. The extreme views of some of the Republican speakers gave them an advantage. "Ben" Wade, of Ohio, a thorough-going anti-slavery man, who was accustomed to use extremely vigorous language, declared that there was no real union in the country, that not even Russian and Englishmen felt in their hearts so much enmity4 as did the North and South.
"Sir," he said, "I do not blame the South one-half so much as I do this brood of doughfaces in the North, for they it is by their fancied con- sternation, have led us into that condition of things which we now see. Is there a man here who believes that freedom and slavery can ever agree? Can fire and water blend? Can you marry immortality to death? Sir, these things are impossible; and he is a mere political quack who believes that you can make any compromise between principles so diametrically opposite as are those of freedom and slavery." Referring to the Chief Magistrate of the Nation he said, "You could not find a meaner specimen of a thing for a President, if you had imported a baboon and put him there."
The Advertiser appears to have been unwilling to report Wade in full. The Argus, however, challenged and finally forced it to print the speech, held it up as an example of Republican disunionism, and said that four men who had never voted the Democratic ticket in their lives declared on hear- ing the speech that they would do so. Another of the speakers, Nathaniel P. Banks, of Massachusetts, said: "I think I may say, in view of the history of the past year and a half or two years, we have had the question presented to us whether the institutions of this country shall be maintained, and let me say, although I am not one of that class of men who cry for the perpetuation of the Union, although I am willing in a certain state of circumstances to let it slide, I have no fear for its perpetuation. But let
'The Crimean War was then raging.
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me say if the chief object of the people of this country be to maintain, per- petuate and propagate chattel property in man, in other words, human slavery -- this union cannot stand, and it ought not to stand." (Prolonged applause. )
Some appeal was also made to business interests. According to the Jeffersonian, Wells said in a speech at Belfast, "If these men (anti-Nebras- kans) succeed, your commerce will be ruined and the grass grow in your streets."
The Democrats claimed that "Nebraska" was not a State issue, and that their convention had expressly refused to make it a test. They attempted to rouse old party feelings by asserting that the Republican was practically the Whig party under another name. The Jeffersonian daringly replied that the Federalist papers, such as the Bangor Journal and the Port- land State of Maine supported Wells, but that the Whig papers who had joined the Republicans had renounced Whiggism.
The Democrats sharply attacked Neal Dow prohibition. But althoughi they could scarcely say enough against the existing prohibitory law, they also attempted to alienate the radical temperance men from the Republicans by charging the latter with being secretly disloyal to their allies. They asserted that the edict had gone forth that there should be no more liquor prosecutions till after election, and that men were told that Morrill did not favor the present law, and that if they would vote for him it would be modi- fied after election.
The vote was larger than ever before. Morrill led Wells by a few thousand, but again there was no election by the people. The official vote stood, Morrill 51,441, Wells 48,341, Reed 10,610, scattering 81. It was known, however, that the Legislature would be Democratic, and the admin- istration papers set up a cry of triumph. The Washington Union, the President's organ, said : "Here, then, is the auspicious commencement of the reaction in the Free States. Here is the first Northern echo to the last victories of the Democracy of the South. Maine was the first to lead off against the Democracy in 1854; and now that she has realized the bitter- ness of the cup which she has been compelled to drain, she promptly falls back into the line of Democratic States, accepts again the undying princi- ples of the constitution, and shines out on a cloudless sky, the Star in the East which points to the overthrow of Error."
"This startling declaration, though well received when delivered, proved a serious obstacle to Banks the next winter, when with great difficulty he won the speakership of the National House. Oliver Wendell Holmes wrote an ode for Washington's birthday, in which he said, as quoted in the Argus:
"Listen not to idle questions If its bands may be untied : Doubt the patriot whose suggestions Whisper that its props may slide."
In Houghton and Mifflin's 1892 edition of Holmes, the last line is given as "Strive a nation to divide." The line may have been changed to make the allusion to Banks less pointed.
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The success of the Democrats was largely due to the use they made of the Portland riot and the death of Robbins. The correspondent of the New York Herald said that the extreme violence of Wade and other out-of- the-State speakers caused disgust and hurt Republicanism.
Shortly after the election the terms of Chief Justice Shepley and Justice Howard of the State Supreme Court expired. Instead of re-appointing them, Governor Morrill raised Justice Tenney to the place of Chief Justice and appointed Messrs. Goodenow and Woodbury Davis Associate Justices. Goodenow was a son-in-law of John Holmes, and had been Speaker in the Hunton Legislature. Davis, originally an earnest Whig, had joined the Liberty party and for three years had acted as their agent, travelling over the State, speaking and writing. He then opened a law office, but retained his interest in the anti-slavery cause. He was also prominent in the pro- hibitory movement. Mr. Davis was a ready and able writer and many of his party's papers and platforms were drawn by him, but he had not as yet distinguished himself as a lawyer.
Great was the indignation of the Democrats over the new appointments. The Argus declared that Shepley was a "model judge, one of the ablest in the whole country," and that Howard, though a younger man, was able and faithful. It said that Goodenow "when nearer the prime of life than now" had been a district judge. "If, without improved temperament or temper or health, he is now successful in an office of higher responsibilities and more difficult duties, we shall be happily disappointed."
It spoke of the importance of judges being known to the people, and sarcastically asked, "Who beside Governor Morrill knew that Portland could claim the honor of so distinguished a citizen? [as Davis] Where is his reputation as a lawyer? Who knows him as such, either in this city or in this portion of the State, in which Governor Morrill com- mands the people to allow him to hold the scales of justice for them?"
The matter attracted attention outside Maine. The Boston Post cen- sured severely the failure to reappoint Judge Shepley, who it is said, had a national reputation. The Jeffersonian replied that other partisan appoint- ments of judges had been made, that Governor Dana had been unwilling to reappoint Judge Tenney, but had been forced to do so by two of his councillors, Manassah H. Smith and Sewall Craw, that Judge Howard had been appointed by his brother-in-law, Governor Dana, that the opposition press had made the same objections to the appointment of Judges Parris and Rice that were now urged against Davis. It admitted that Davis had not had an extensive practice.
On the meeting of the Legislature the House sent up the names of Reed and Wells and the Senate elected Wells, two Whig Senators voting for him. The Democrats elected Lot M. Morrill president of the Senate, not because they agreed with his views or desired to conciliate his friends and followers, but because they wished to get him off the floor. The Whigs
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received their reward in the office of treasurer, which was given to candidate Reed.
The choice met, however, with vigorous opposition. Some of the Whigs desired Reed to maintain his independence and run again next year, while many Democrats wished to make Amos M. Roberts, of Bangor, treasurer. They may, however, have found some comfort in the make-up of the Coun- cil, for every man was a Hunker.
Having filled the State offices, the Democrats proceeded at once to repeal the registration act of the preceding year. The Kennebec Journal, then edited by James G. Blaine, made the caustic comment, "The Legis- lature in both branches yesterday did their best to give Paddy McShane the privilege of using Teddy O'Neil's naturalization papers about election time." The Democrats also availed themselves of what they regarded a fortunate opportunity of removing Judge Davis before he was hardly warm in his seat.
An amendment to the constitution had been passed at the September election, providing that the sheriffs should be chosen by the people instead of being appointed, as heretofore, by the Governor and Council. The first election was to take place on the second Monday in September following the proclamation by the Legislature that the amendment had been adopted, and the persons chosen as sheriffs were to take office on the first day of the ensuing January and to serve for two years.
The Democrats determined to make some of their partisans sheriffs. Governor Wells removed various Republican sheriffs and appointed Demo- crats in their stead. The sheriff of Cumberland, Sewall M. Baker, was replaced by Daniel C. Emery. "A close question of law was thereby raised, viz., had the constitutional amendment been adopted so that on January II, 1856, Governor Wells had no power to remove a sheriff in office and appoint another, or did that power still remain with the executive, the amendment not having taken effect?"
The State Constitution then, as now, provided, Art. X, section 2, that after the Legislature by a two-thirds vote of both houses had agreed upon an amendment, it should be submitted to popular vote, "and if it shall appear that a majority of the inhabitants voting on the question are in favor of such amendment, it shall become a part of the Constitution." To whom shall it "appear"? To the Governor and Council, or to the Legislature? Just when in point of time is the Constitution amended ?- when the votes are cast; or when canvassed by the Governor and Council, or when their report is made to the Legislature, or when the Legislature accepts the report and makes a proclamation thereof? Governor Morrill and his Council had canvassed the returns, transmitted to the office of the Secretary of State, in Novem- ber, 1855, after the election, and "it appeared to them that the people had voted in favor of adopting the amendment. They had made return of the votes to the Legislature of 1856. It had been the custom of the Legislature, whenever amendments to the Constitution had been adopted, to pass a
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special resolve declaratory of that fact. The Legislature, at the time Gov- ernor Wells appointed Emery sheriff, had passed no such resolve and had made no such declaration. Was it necessary that it should?"
The Republicans of course denied any such necessity and their sheriffs refused to recognize Governor Wells' appointees. The contest in Cum- berland involved Judge Davis, who was holding court in Portland. On Monday, January 21, Mr. Emery appeared in court, accompanied by his counsel, ex-Judge Howard, and Nathan Clifford, soon to be appointed a justice of the United States Supreme Court, and these gentlemen called on Judge Davis in able and very earnest arguments to recognize Mr. Emery as sheriff. Judge Davis in reply spoke of "the newness of his own posi- tion upon the bench, and his anxious desire to be guided by all the sug- gestive counsels of the members of the bar, upon the questions involved in the issues so raised ; adverting, also, to the fact that he was conscious of the much greater professional experience of several members of the bar than his own; and he therefore invited the expression of whatever opinion any gentleman might be pleased to offer him on the subject, to aid in a correct judgment thereon."
General Fessenden then arose and argued with much vigor in behalf of Sheriff Baker. Judge Davis expressed his reluctance to decide the ques- tion, but also his unwillingness to evade the responsibility of his position, stated that he had prepared an opinion, that it might not cover all the points raised in the arguments just made, but that as they had not caused him to change his views on the merits of the question, he would read what he had prepared. Then, after some oral remarks on the case, he read a decision in favor of Mr. Baker. Judge Davis expressly refused to decide the gen- eral question of the constitutionality of Governor Wells' appointments, or even who was the rightful sheriff of Cumberland county, except in so far as it was necessary to decide who was legally qualified to perform the duties of sheriff for the court. Governor Wells' appointees disregarded this lim- ited decision of a single justice and persisted in their claims.
The power of the State executive was behind them and the Republican jailors and sheriffs, including Mr. Baker, surrendered the buildings and other State property in their charge, protesting that they acted under com- pulsion.
In March, Judge Davis held a term of the Criminal Court of Portland. Both sheriffs, each with a crier, appeared. General Fessenden stated that he hoped that the judge would not reverse his former decision. Davis adjourned the court until afternoon and then announced that he should recognize Baker as sheriff. By the time of the last trial of the term Emery had obtained possession of the jail, but Davis refused to recognize him as de facto sheriff, and used the services of a constable provided with a proper writ to bring prisoners from the jail.
Davis' conduct greatly incensed the Democrats. They claimed that
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he should have recognized the person having a commission as sheriff from the Governor then in office, though another held a commission from an earlier Governor.
Neither side, however, was sure of the correctness of their position on the appointment question. The Democrats declared that whether Governor Wells was right or wrong it was an encroachment on the executive power for a single judge to pass on the validity of his appointments. The Repub- licans claimed that whether Judge Davis' decision was correct or not it would be an outrageous assault on the independence of the judiciary to remove a judge for a decision honestly given on a doubtful question of law. They demanded with much reason why the opinion of the Supreme Court had not been taken. The Governor, Council, Senate and House all had the right to call for it, but notwithstanding the efforts of the Republicans, none of them would submit the question.
The charge was made that the Democrats were planning to reorganize the judicial system in order to obtain a majority that would uphold their views. They contented themselves, however, with driving Judge Davis from the bench. The constitution of Maine provides two ways of remov- ing a judge : one is by impeachment, the other by the Governor and Council on an address from both branches of the Legislature. The first method is a distinctly judicial proceeding. The Senators who are the triers of the impeachment are on oath, witnesses are called, the forms of a court observed and a two-thirds vote is required to convict. The address is voted in the same manner that any bill is passed, although the judge whose removal is sought is entitled to a notice and hearing. The Democrats resolved to pro- ceed by address. This method being less judicial, both in form and sub- stance than impeachment, it would be easier to persuade hesitating mem- bers that they were not acting as judges and jurors determining the truth of certain charges, but as public men pronouncing whether it was well for Judge Davis to remain on the bench.
It is said, however, that even to obtain an address some pressure was necessary. The Democrats caucused and the Republicans declared that the party whip was used to keep members in line, and that it was shameful to thus influence before the hearing the very men who were to render the deci- sion. Judge Davis in a private letter angrily declared that the House had prejudged the case.
Judge Davis and his friends, however, took care that if the decision went against him it should not be for lack of able counsel and they sum- moned from Boston Rufus Choate and Henry W. Paine. Apparently Mr. Choate was to furnish only the rhetorical fireworks, what Cicero calls the pigmenta et ornamenta. Richard Henry Dana wrote in his journal: "Judge Davis' friends retained Choate to plead his case before the Legis- lature, and I was retained to make full preparation of the law and history, and to take Choate's place in case he was prevented by illness or engage-
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ments from going. I was obliged to make the same preparation as if I were the only counsel, without knowing until Wednesday whether I should be called upon to go. Wednesday night, Choate being ready, I handed over to him my brief (seventeen pages) and he went to Augusta."
Mr. Choate's colleague, Henry W. Paine, was a Maine lawyer who had recently moved to Boston, and who became one of the leaders of the Massachusetts bar.' Ex-Governor Kent was also employed as consulting counsel.
Mr. Choate's health was poor; the hearing was postponed a day for his convenience, and even then the opening speech was made by Mr. Paine, and the next by F. O. J. Smith, who had been retained on account of the illness of Mr. Choate. Mr. Paine discussed the case with great ability. He claimed that Judge Davis' decision was correct, but argued that even if it were erroneous he should not be removed unless the decision was made unnecessarily or was so manifestly wrong that it showed incompetence, which was not the case, as the best legal minds in the State were divided on the question. Mr. Paine also argued that Judge Davis was accused of a misdemeanor, which the constitution had made an impeachable offense, that where a remedy for a wrong was provided it was the only remedy, and that therefore the proper mode of procedure was by impeachment. If the question were asked why then did the constitution expressly provide for removal by address, the answer would be that this method of removal was to furnish a means of getting rid of a judge who had committed no offense but who was unfit for his position for such reasons as old age, ill-health or insanity. Mr. Smith made a forcible argument, discussing the matter from its political rather than its legal side.
The closing speech was delivered by Mr. Choate. The correspondent of the Whig said that "it was one of his most willing and earnest efforts- and although suffering from illness at the time, and with failing strength which obliged him to limit his time to about half of what he originally intended, it was an effort altogether worthy of his great name."
The Argus, however, said: "He spoke about two hours and a half, in an interesting and at times eloquent strain, but feeble health prevented his equalling either expectation or himself. At the close of his address he appeared very much exhausted."
The effect of the pleas of Judge Davis' counsel may have been partly neutralized by his letter declaring that the House had prejudged the case, which had in some way got into the newspapers. Senator Goodwin, of York, had said in the debate on the address after the hearing that he would
'The Argus said of this resort to out-of-the-State talent: "Is Judge Davis' case so bad in his own eyes as to require desperate remedies? Does he think to frighten the Maine Legislature by an assemblage of Boston lawyers? Or does he aim to make a scene in which his figure shall be rendered prominent in the attitude of a MARTYR, and out of which by skillful hands he hopes to manufacture political capital hereafter ?""
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not remove Judge Davis for a mere irregularity, the only offense of which he believed him guilty, but he changed his mind and justified his action by the judge's letter. It is said that the letter was also used to keep certain members of the House up to the mark.
When the vote was taken the Senate stood 25 to 3 in favor of the address. The minority consisted of a Democrat, Lot M. Morrill, a Whig and a Republican. One coalition Senator who was absent was reported to have gone home to avoid a vote, saying that he did not want his name on such a record. The House on the same day passed the address by a vote of 81 to 60. The Republicans offered a formal and carefully argued pro- test which they asked to have entered on the journal of the House, but the Democrats refused. The Democrats of the Senate likewise refused to enter on their journal the protest and answer submitted by Judge Davis at his trial.
The address was sent to the Governor on the day of its passage by a committee of both Houses. "On April II, in a proclamation which with great force and logic presented his side of the case, Governor Wells removed Judge Davis from office. His proclamation was in the nature of a judicial opinion and discussed at length every point which had arisen in the controversy.
"Judge Davis filed a memorial with the justices of the Supreme Judicial Court at the Law Term on the second Tuesday of May, 1856, claiming that the act of removal was illegal, that he was still a member of the court, and asking the right to exercise the privileges and duties of his office. But the Law Court, in an elaborate opinion by Chief Justice Tenney, held, Judge Goodenow dissenting, that it had no jurisdiction in the case and dismissed the memorial.""
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