THE

MONTHLY LAW REPORTER.

MAY, 1855.

THE REMOVAL OF JUDGE LORING.1

WE call the attention of our readers to the document the title of which is given below, with regret. We propose to examine it and to discuss its positions very much in the order in which they are presented, if, indeed, it can be said to have any order or method. It is evidently drawn up by a person, who, however well educated, has had little experience in presenting a subject, and especially a legal subject, argumentatively. Considering, too, the question which the committee had before them, so momentous, not in the immediate issue, but in the principles and consequences involved, and the precedent it would establish, we have regretted to see that, instead of being a dispassionate argument, commencing with laying down its reasons and going on with calm judicial dignity to its conclusions, it manifests in its very commenceent, after a few extracts from Blackstone and the Declaration of Rights, having very little bearing on the case, the foregone conclusion of its supporters, and seems to be drawn up on the theory that the remonstrance of Judge Loring, once answered, the work of the committee was done, and the recommendation of removal followed as a matter of course.

The whole case against Mr. Loring may be stated in a few words. In June last, acting as commissioner of the Circuit Court of the United States, which office he had

Report of the Committee on Federal Relations on divers petitions for and against the removal of Edward G. Loring, from his office of Judge of Probate for the County of Suffolk. Commonwealth of Massachusetts, House of Representatives, March 22, 1855. House Document, No. 93.

held for fourteen years, after a full hearing, he sent back to V rginia a fugitive slave, under the United States law of 1850. For this act, the petitioners now ask that he may be removed from the office of Judge of Probate for the County of Suffolk. It is not easy to gather from the report, hat any specific offence is charged against Judge Loring, except that he "has lost the public confidence." It is admitted that he has not been guilty of any crime, yet an attempt is made to charge him with a violation of the State law of 1843.

This law is as follows:

SECT. 1. No judge of any court of record of this Commonwealth, and no justice of the peace, shall hereafter take cognizance or grant a certificate in cases that may arise under the third section of an act of Congress, passed February twelfth, seventeen hundred and ninety-three, and entitled an Act respecting fugitives from justice and persous escaping from the service of their masters," to any person who claims any other person as a fugitive slave within the jurisdiction of this Commonwealth.

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SECT. 2. No sheriff, deputy sheriff, coroner, constable, jailer, or other officer of this Commonwealth, shall hereafter arrest or detain, or aid in the arrest or detention or imprisonment in any jail or other building belonging to this Commonwealth, or to any county, city or town thereof, of any person for the reason that he is claimed as a fugitive slave.

SECT. 3. Any justice of the peace, sheriff, deputy sheriff, coroner, constable, or jailer, who shall offend against the provisions of this law, by in any way acting directly or indirectly under the power conferred by the third section of the act of Congress aforementioned, shall forfeit a sum not exceeding one thousand dollars for every such offence, to the use of the county where said offence is committed, or shall be subject to imprisonment not exceeding one year in the county jail."

It was passed under the excitement caused by the use of the jail in the county of Suffolk as a place of detention for a fugitive slave a short time before, and any one reading it must, we think, necessarily come to the conclusion that its meaning was simply this: That the State of Massachusetts, exercising a right which is now undoubted and acknowledged, (Prigg's Case, 16 Pet. 539,) has withdrawn the aid of her magistracy, of her executive officers, and her jails, in carrying out the provision of the constitution and the laws made in pursuance of it, respecting fugitives owing service and labor. We do not know of any authority that we can cite, we hardly know of any argument that we can adduce, to illustrate this position. It appears to be one of those cases where simple statement is the best argument. But there are certain considerations collateral to the main question, not bearing directly on the construction of this

statute of 1843, but tending to show what might have been in the contemplation of the legislature, that it may be well to state.

Our system of government is composed of two parts; and each man owes allegiance to the nation and to his own State. On some subjects, the claim of the nation is dominant over that of the State. In others, that of the State is dominant over that of the nation. But both these powers, being parts of one harmonious system, agreed upon by the whole country for the good of the whole, it is absurd to suppose, that any man may not serve both the nation and the State at the same time, except in cases where there is a natural incompatibility in the services, and they conflict with each other, or else where the union of the two services is forbidden by some positive law, either of the nation or the State. Now there is not any pretence that there is any natural incompatibility between the offices of judge of probate and commissioner of the United States courts. We speak argumentatively, and assume, for the present purpose, that the duties of the latter office are proper to be exercised by some person or other.

Nor is there any thing in the laws of the central government or of the State, which forbids the meeting of these offices in the same person. This is not a mere oversight, as Judge Loring has himself shown in his remonstrance to the legislature. The restrictions on the judges of probate as to engaging in other pursuits are defined in the Rev. Stat. ch. 83, entitled "of the Probate Court." In this statute we do not find any thing forbidding a judge of probate from acting as an United States

commissioner.

The legislature of the Commonwealth, acting under the constitution, has thus far guarded the office of judge of probate in particular, from collision with other pursuits which they held to be incompatible with its exercise.

But there is something more than this special provision of the legislature in the case of a judge of probate. The people have deliberated upon the subject of the "incompatibility of officers" generally, and have declared their will through the constitution. The eighth article of the amendments to the constitution is entitled "Incompatibility of Offices," and is as follows:

"No judge of any court of this Commonwealth, (except the Court of Sessions,) and no person holding any office under the authority of the

United States, (postmasters excepted,) shall, at the same time, hold the offiee of governor, lieutenant governor, or counsellor, or have a seat in the Senate or House of Representatives of this Commonwealth; and no judge of any court in this Commonwealth, (except the Court of Sessions,) nor the attorney general, solicitor general, county attorney, clerk of any court, sheriff, treasurer and receiver general, register of probate nor register of deeds, shall continue to hold his said office after being elected a member of the Congress of the United States and accepting that trust; but the accep tance of such trust, by any of the officers aforesaid, shall be deemed and taken to be a resignation of his said office; and judges of the Court of Common Pleas shall hold no other office under the government of this Commonwealth, the office of justice of the peace and militia offices excepted."

It must appear from the structure of this article, that the whole subject was in the minds of the legislature and the people; that they had found the constitution defective, and thus applied the remedy. The article treats of the incompatibility of offices holden under the United States, with those holden under the State, a point omitted in the constitution; it excludes certain State officers from holding certain offices under the United States, and incapacitates certain United States officers from holding offices under the Commonwealth. Here, again, there is nothing to prevent the two offices now under consideration from meeting in the same person. And the argument for their union is much stronger than it would be if the statutes and the constitution were entirely silent on the subject. If it be urged that this silence was an oversight, and that here was a casus omissus; we answer, the wise and thoughtful men who have established our form of government, have evidently had the whole subject, if not in relation to this particular case, yet in a general view that would include this and all other cases, under their consideration, and the result has been as we have stated above. We have a right to say, then, that there is nothing in the letter or the spirit of the constitution or legislation of Massachusetts as they existed before the present question arose, which renders the two offices held and exercised by Judge Loring incompatible. The subject has been fully brought before the public, and has been left untouched. The rule expressum facit cessare tacitum, is most peculiarly applicable to a case like this.

And is it not the course most consistent with sound statesmanship that this should be so; that we should endeavor to complicate as little as possible the relations between the federal and State governments, that we should leave the career open to men judged to be able to serve their country in any way and in all ways in which their services may