The enquirer. [volume] (Richmond, Va.) 1804-1815, 1806-01-23

words: ''>'-
a" Sea. g. Each Of the Iaii D,flria Courts in term
time, or any Judge thereof in vacation, ihall, aud
may nave and exerciie the fame power Of granting
inlunctions To Hay proceedings on any Judgment
obtained IN any OF the fad Dtrita Courts. as is
mad and exereied by the Judge ofthe High Court
OF Chancery in iilrilar cafes and the fad DifrGe
Courts may proceed the diolution final hear
ing OF all fuits commencing by inupe fien, under
" the fame rules and regulations now pre-
ierihed BY law for conducting Gniar iuiss i'll the
High Court Of Chancery."
At diftrift court held at Dumfries, on the
e3rd May 1853. Peter Hamper made mott
on for IA injunction under the fett. juft read,
to aay proceedings on a Judgment obtained
bv Mary Hawkins againit him, at the precc-
ding fefiion of that court. Judge Roaue very
wifrly adjourned the cafe to the general court,
for novelty and difficulty, as to the conftituti-
onality of the laid ad giving chancery iurii-
diaion to the judges of the general court. On
the 10th Nov. 1898, the general court deci.
ded unanimously that they would not execute
the act on account of its uncontitutiopalty.
Five judges, were prcfent. Three were of q.
pinion, that the contribution did not forbid
the union of the office of general court Judge.
and chancellor in the fame perfor, if ele,acd
by ballot and CONDITIONED, according TO the
contribution. One of the three however al.
mitted, that it would be unwife to unite them.
Two of the judges held, &" that Judge of the
general court cannot conftitutionally exercife
the functions of Judge in chancery." H,y-
ing thus introduced the fubjeGt of the Judges
opinions, beg leave to read them from, th.
printed report made of the cafe of Hamper AMI
Hawkins, by gentleman ofthe bar. fudge
Tucker this cxpr,fies hnielt:
What thoie limits are, may he collected from tn.
ian article (a which provides for tine appointment of
jaegss of the fupreme.court of aSteal aud seo.,ni
curt, j"dg, in ebanee,y, jDcg.5 Of 0la,iyai," &c
MS specification ct Judges of .,rrai .-bXrqls would
lead us OF itief to conclude that the tribunals them,
ieives were meant to he feparate and dlit2 This
eonclulon feens to be warranted by two c;rcun,
aness, the MFG the other arii;ng out Of rho
contribution itieI Ihofe who recollect the ftuatiou
OF our jurfPrudeucc,a at the time of the reyou,;or
VIII remember that the nnion of civil and criminal
common law, and Gently juriidaion all in the gene
raj court, OF the nloi obvou. defects of tina,
iyitem. In truth, nothing can be more daneerou, To
the citizen, than the union of criminal courts. and
courts OF equity. On the European continent WHERE
ioeverthe civil law has beer adopted, criminal ami
civil proceedings have been conducted upon the ike
principle: the defendant in civil cafes mig hit be exa
mred upon oath by nterrnga,orcs, 10 which If he
gave not satisfactory aniw.r he might be committed
until he dds this principle bring extended to eyim-
nal cafes was disseminated by til. moderate tern, II
putting the pcrfon accuied the g.eaicu but maj,
much Us the forcing criminal to accuie hmirif ON
'Ab, might prove aars 10 Dir eoni>nee the obl;ati
on tn aniwtr to the guetlon zras iaforreS By fort
iocparate forever, courts, Whole principles AID pro-
ceedng' are 10 diametricay orpn!ite thoe of the
common and civil law, was, ihould prelumc one of
the fundamental principles which the Trainers of our
contribution had an eyeto. They, therefore, diffri-
buted the powers Of the then exrg pr.rel opyi into
three dihnet branches, viz. the court of appeals tL
court oil ehancery, and the of general urdcti
OH, az common law. The repetition OF the term,
Judges, ihews that it in contemplation tia, h,,b
the tribunals, and the judges hould be diAiua and
iePar'te Inns Is farther confirmed By art I6 and
II: % the former of which prev;iso FIN, ,,u.,h
ents IN general ihall be proecutcd in ii court the
'atter that impeaehments againR the judges of this
court, fall be proecuted in the eev-, of ebS,aL No
thing, then can be clearer than that the coniii,uio
intended they fhould be dana Judges of d.hiptt
courts. And hence ! am fatsfed, that the former
court OF appeals was unconaitutionaly orraniy.d
his reai"ning IaPPrehcnd will apply no lefs forci
bly, to the eparation of the general court from, ~.
court ot ehancery. Judge of the general court if
mpeaehed, can be profecued in the court Of sttroI,
Oy Judge in c!ancery any in the gu.ra, esyrt IL
theie Offices be united in the fame pcron il nlu h.
by ieParate commGions; Judgment on Impeachment,
III the general court, cannot the coinricn of
Judge OF that court, bccauf. the contribution hs,
a'o'her tribunal where Judge of that court
ha'i be trIed judgment in the court of appeals CAM
not vacate the comm flion of Judge in chancerv he
eaue, lie mutt he tried, fuch, in the general cour,
f'ehce 1t ieems TO me we driven to conclude th,,
the contribution meant that the two Office. G,aIl h
ieParate and diitinGt: This contribution ren,ycs -.
very oiiheuty, the contrary, | appreherd, creates
multitude, and ihoe infurmountable III pprf,-
ance oil this direction. Contained in tine conGiturio,
the legislature, when il fet about organizing the courts
attributed them as above mentioned 'Tb- cr;o,;,,i
and common law Court, ieparated from the CON,
OF equity and both from the court of appeals in form
though not in reality until the legillature, by the ao
OIL 1888, 6S. corrected its former error "A
thus diitihtt have they remained until the aa of tb
at ieiion, which hath not indeed united the conNi
tntona courts, but hath blended them in .ffeta bv
a'Isnng the functions Of Judge in chancery to RI,
Judges oi this court; and If carried into eff q NAV
lead to the total annhilatien Of all the courts viii
the contribution had in contemplate to ellablih
have iaid before (pa 52,) that the dnrita couf,s
eoniidered as Independent Of the general court ami
not modification o! Ii, legislative and no,
constitutional courts. If they are modification onIy
nj the general COURT it flows from what have ,re,
dy faia that the contribution prohibits the eIcreife f
ehaHeery jurfdi9ion therein " they be mere Is-
sfiatlve courts it be The duty of any udye sc
CONT iutiona court merely az leL to exercife de
functions OF judge of thee courts, and it is. COR
eeye, expressly contrary to the duty of a conftuto.
Al Judge az one SQUIRT, to exerce the functions of
eonittitional judge Of another siGnel eorGtptpnsl
court.
IL tI,en In, atsr;,I ,yb..i,o. -.