Virginia Argus. [volume] (Richmond, Va.) 1796-1816, 1808-10-07

Is meridian splendor, before we suspend
The operation Of laws on that ground, other
wise We may err too much on the other side,
and make that instrument which was in
tended for our polar star, serve merely as
a false light, which would lead to darkness
and confusion.
How is it clear, then, that the law refer
red to, is an infraction of the constitution
1t is argued, that the conrt is to make the
appointment, and the sheriff not being a ma
gistrate, cannot give his vote in such a case
as we now contemplate. "The sheriff is
"no magistrate" say the English books, and
so says the book of common sense, at least,
while actingas sheriff.
But here is involved contradiction in the
argument, when it is asserted that magi-
strate, accepting the Office Of councillor,
does not vacate his former Office, because
it is in a beyance; if this be true PROPOSE
ton, magistrate becoming a sheriff, does
not vacate his Office as magistrate, for a
stronger reason, because the sheriff is se..
lccted from his BODY, to execute the duties
OF that Office, and returns again to his sta
ton, when that delegation of power ceases
he is yet component part of the court.
What is a conrt under the general idea,
and how composed?
1t is made up of justices of the peace, a
sheriff, clerk, SC. but may not court, or
the magistrates thereof, act in ministeri-
al capacity Does not the sheriff act i'm this
station /! Where then is the incongruity of
these officers acting together !?
The justices make an election-ths is no
judicial act. The court then, in their mi
nlsterial function, make an election. The
court are, by the constitution, empowered,
in their ministerial capacity, to make the
appointment; they are divided between two
candidates; the sheriff, high ministerial
officer, steps in. by authority of law, and
decides the matter-Whcre is the infracti-
on of the constitution in such a case?
Again, may not and ought not the Iegisla-
ture to aid the constitution, whatsoever its
rue spirit cannot be effected, by an omission
or defect, as in the case before Jus? This can
not be denied with propriety, Ibelieve since,
If 1t be otherwise, it would go TO a denial of
all legislative interpretation, let tbs difficult
ties be ever so great. What is this but "A
supply OF power where it was Omitted BY,
the constitution, which declares there shall
be an appointment, but not providing, as it
is impossible to do, in every possible case,
which may happen--ihe legislature gives
its timely aid to effect the intended purpose.
Nothing seems clearer than this position.
Again, has not the legislature right TO
legsate on all subjects, not expressly for
hidden by the constitution? This must be
granted. 1t possesses all the power Of the
people, and the laws are their wiil-provi-
del they do not go beyond the true spirit and
meaning of the constitution.
81 well know that the executive. lep,sla-
" tive and judiciary powers, are separate
" and distinct, neither ought the one to ex-
he
g the other," for consolidation of these
powers, is the highest tyranny. 1t was.
therefore, wise, TO divide them, and will be
always safe and discreet, to keep them so.
Flow, was law to direct a sheriff to step
out OF his box to decide a judicial question,
where the court was, divided, in case of
writ or right, or IN a criminal case, between
the commonwealth and a citizen, / should
not hesitate to step forward. boldly, to the
and support, with manly firn
ness, the jest division of power.
love and revere she constitution of nv
country, with all its supposed defects and
errors, which, by the bye, have never been
able to discover in sohigh degree as some
others-I yet continue TO believe it the best
that ever fell to the lot of man to live uncer.
Most OF the objections that are made to it,
are the ehervescences of warm imaginati.
ohs, fatner IMAM the effects OF cool and So
Der reflection, or long experience. / have
seen no very extraordinary assumption of
power, dangerous to ;he happiness Of the
people. In some few instances, the repre-
sentative body has gone too far, but as Of.
ten has 1t retracted when sensible of it.
So long, therefore, as we adhere to its
just principles, so long shall we be safe
but nor IN the eDdeavor to support it, ought
we, by too nice and critical construction,
TO deny the legitimate acts of the govern.
msnt IT a doubt exists, as to supposed
violation, the Inv should have its effect, and
not involve difficulty where it can be clear
ed of the objection
SO essential is the Office of clerk to eve
ny court, that nothing can be done without
one--equally so is sheriff
There mustbe a nnde pointed out, to sup
ply vacancy which the mag .strates cannot,
or viii not fill.
Suppose the latter case-oneht not a law
tobe passed to supply the defect, and shall
we resort 20 a convention for every purpose
like this hope not.
On the first and grand point, therefore,
an, clear the objection to the sheriff vote,
is not well founded
I'd. is to the second point-that the e..
lection ought to Re IN de in open court, and
not ~ the jury room this / think has no
weight in it all.
The court was opened, the candidates
j. l.