The enquirer. [volume] (Richmond, Va.) 1804-1815, 1809-12-28
FOE TIE ENQUIRER.

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undergoing revision by tbs legislature
That enc plan is to restore to the court of
appeals the former number of judges. That
another is to nmaLgamafc the courts of chan
Gerry, and the general court: and that
third is to district The present courts Of chan
Gerry; and to put the chanceuors upon their
circuits. These are important plans; and
if caD be INDUCED with place in the En-
qairer, will submit to criticism, few
sketches of my ideas, upon each.
AS to the first: 1t is entirely proper; but
it proves, that old sy stems shsud be touch
ed with great delicacy: for it has not been
much more than six months, if that, since,
by the death of judge Lyon, the court of
appeals was reduced to three judges and
| already it seems t. be agreed. that the reduc-
ton, at hrst, was improper. This should
be at least caution IS to other innovati-
ons.
| Asto the second: BY the Constitution it
is provided, that the Legislature, executive
and judiciary departments SD all be separate
and distinct, so that neither exercise the
powers properly belonging 20 tie other
and also, t,iat the two houses Of Asse mbly
shall. by JONI ballot. appoint judges of the
supreme court Ct appeals, general Court, and
Judges III chancery, to be commissioners
the Governor, and continue in Office during
coed 5ehaoior.
In conformity to these provisions in the
Constitution the Legislature, long since, ap
pointed distinct judges TO the court Of APP
Ipeais, courts of Chancery. and genera
court, and they were commissioned aceor-
dinghy; and stW hold their commissions
The question now, is not, what could the
legislature do, in new organizations of the
courts, if the judges were al I. resign their
commissions but what can the legislature
de, as the judges aAhold their commissions
and the answer is a very plain one: that
they hold their commissions during good
behnUtoT AS independent or the ieSsia
ture AS the legislature is OF the judicia-
ry $50 that these courts as no7y estab
lished. cannot be amaigansated by any Lcsis
t1tiUe act, without the abolition of them
directly OF indirectly fer that purpose: and
it is evident, that the abolition of Consti-
fWfionai court. by the legislature, is as much
out OF the question, as the abolition OF the
legislature is by the judiciary: since it
would fix the principle of dchendence upon
each other; and of course destroy one of
the fairest features of the Constitution
namely, the fndefcndence of the judiciary
and the consen, Of the judges, as it seems to
me, would not alter the case as they have
no right to give their consent, to fix princi-
pie, that might inflict an irreparabls wound
upon the Constitution aud subject them
to the reproach of deserving their station and
betraying the most sacred interest of the
people, entrusted to their hands---to wit
&c MAINTAIN the Constitution. duty e. |
quaRy incumbent on both the legislature and |
the judiciary, and ] am perfectly sati SIZED, |
that neither mean, intentionally, to violate IL.
The factis, that as these courts have been |
established, con)ormably to the Constitution, |
their jurisdictions cannot be united now, in |
the same judges, admitting it might have
been done at first, unless the judges will re = |
sign their commissions and say to the lie. |
gislature, we have put all officially out Of
your way, organize these courts again, as
may be thought proper, for the best interest
of the people and there can be no doubt, |
but such an act Of patriotism would meet |
with its lust reward, in other appointments, |
under the new order Of things; and this the |
judges, it is presumed, viii do, whenever it |
shall appear to thyfn to be both NECESSARY |
and CoHSGtutio1s1i +; and not before.
This is notiike the case settled by Con !
gross. The courts in that case were crcated |
by the legislature; whose right to establish |
them, tho derived FROM the constitution, de. |
pended upon the necessity Of such courts for !
th~beneht of society and when that neces |
sIty censed to exist, or, it upon enquiry, it |
was found not to exist at all. their creator, |
;he legislature. was bound to dboLsh them. |
This was done. But, no one ever contepded, !
that Congress could exercise such "a power |
over the supreme court: no: no nor ehar |
the Legislature of this commonwealth San
YER the court of appeals, cours Of CHARGE.
ry, or the general court and, yet, they |
might over the spherior courts Of aw, as
they did over the late district courts, be- !
L.