The enquirer. [volume] (Richmond, Va.) 1804-1815, 1810-01-16


whom were 70 hold court, and during tire same
session the general court established consist
Ing of five members, any three OF whom were to
constitute the court That the jurisdictions were
not to be united in the same PERSONS but that they
were and have in these courts of original juris.
dction been kept separate and distinct from their
foundations to this day: That no change has been
.Sade in the court Of chancery. except in 1892,
to lessen the number of Chancellors from three
to one, contrary to the express letter OF the
constitution, which speaks in the plural, Judges
IN Chancery." and in 1902 they INCREASED them
to their former number of three, made three
courts appointing one Chancellor to each court.
Bat in relation to mixing the Jurisdictions ec
fort even WAS made until 1892, which produced
the decision of the general court in the case Of
Hamper and Hawkins, which effort failed and
the legislature did not insist. Most certainly the
facts are, that no Chancellor has yet been
invested with common law and criminal ju-
risdiction or either, nor has any judge of the
general court exercised the original functions of
court OF equity; nor ought he, rs is Believed by
the writer with due Difference to The opinions of
others. 1t is supposed to be in violation of the
spirit ct the constitution and fit were not that
the adoption of such principle would be npo-
lite and productive of Inconvenience and confu-
sion not TO be easily calculated, especially under
the present arrangement of the courts. BY the
lfth section OF the constitution 90 the Two houses
NhoSSHoiy SbaitS ny JOINT paiOts aDpOul JUDGES
" OF the supreme court of Appeals ard General
Court, Judges in Chancery, Judges of Admi-
| rally, &c" 1t is thought that CT no question on
which doubts have been entertained, can as high
authorities be produced proving that the jnris-
dlctions OF the two courts ca.not be blended i'm
the same individual The rule is not less unver-
SAL than useful. that Tie construction given any
Instrument almost cotcmporaneeus with It's origin,
! IL prima f,cie evidence of it's correctness How
| u tits rule fortified, when those Tho give the
construction actually drafted the ipstr,,T,cnt II
is believed that three out of four of the members
! OF the legislature WHO passed the acts of IVY,
organizing the high court Of Chancery and Gene
| raj Court were trainers of the constitution. Not
en- idea apPe airs to have been entertained by them,
that the original superior courts of common la w
| and equity should he united IN tie same persons
On the contrary, every event and circumstance
concur in showing that the trainers of the ccnsti-
tuition designed at that highly patriotic and en-
i8hten.d period that the jurisdictions SHOULD be
| in separate hands.
| Under the acts ofI7?7 the highly and Justly
celebrated Pend!eton, Wythe and Nicholas were
made Chanceilors Lee, Darlington, Lyons and
| tiemning were appointed Judges OF the General
Court; Messrs Waller, Cnrle and Cary were e.
tcc,cd Judges of Admiralty. Previous to this
had been passed three special temporary acts APP.
| pointing commissioners OF Oyer and Termineu
Tor tin. Trial OF criminals Is it possible that such
| men as these and their associates. such as Il
| Henry. Mason, X. II. Lee aud others not less
Intelligent than patriotic, did not understand the
constitution rs well IS we do Might il not be
! !-iry Presumed hist they understood II better
| what we do oursel,es We may be presumed &c
understand III the most ordinary occasions bet
| Ter IN affairs OF such magnitude. Can We be SC
, vain as 10 suppose ourselves wiser than those
yes and worthless i-.ncn whose characters toi
!, genius, experience, information, deep peneirati
on and Tor virtue shall LAST rs loag time
| These men who had made snu finished the hol,
T, work OF our constitution ard who were elected
out ot the great and good AT that glorious epoch
to carry II into operation. SO soon as it became
Let essary TO organize the judicial department vo,
sec them broadly separate the ORIGINAL jiirisdic
ten OF the superior courts. They had seen an(
sensibiy felt the manifold evils resulting from "a
MATCHMAKING the functions OF tue two courts IL
the old General Court, which existed before The
revolution, and 40 DOUBT dss rned t. Obviate the
defects OF such system: IL - thought that sucf
authority as is here cited for the construction o
the constitution might settle the question. o
ther authorities OF almost equal weight can be
urged III support of this constructions, The re
inonslrance ofthe court of Appeals of the 29th o
April 1873. composed of judges Pendleton
Nythe, Blair, Darlington, Lyons, FieIamir.s
Tazwei, Cary, Henry and Taylor many of whom
had large share IN Training mestiinable con
sthution. Among other important principles
they lay down the following 6 When public u
fifty should demand an increase or diminu;ion O
labor and duty, there should be an analogous al
iteration ct salary with this restriction however
| that such regulation should not blend the du!ie.
OF the Judges of the General Court, Court O
Chance,y, and Admiralty which the constitution
seems TO require should be exercised by dIstinc
persons :" and the Legislature appear TO have sC
considered 1T III the arrangement of those courts
Il have heard one or two members of that court
did not cordially concur in this opinion as to tn,
fact either way, know not Ii appears to be the
opinion OF all the members. hitao' the wore
" seems" is employed by Mr. Pendieton who WA.
appointed to deliver tie resolution of the whole
court, 1t is TO be remarked that The opinion wal
as conclusive ss ii 1t mad been given N mucf
stronger terms. Ii is well known that Mr Pen
dlcton III ms judicial character used tie mildes
terms the English Language afforded Neverthe
less the opinion OF that most Intelligent court i.
entised 10 tie same binding authority. All the
n,smbeTs who composed this able Court were
noDg the NEST enlightened wings of The revolu
tioh
The separation ofthe departments of Govern
rent was with them most important principle
they carry II into the judiciary dcPartmeni--Tbe
carried the principle into the subdivisions of this
department and believed that an union of the
Common Law and Chancery Jurisdictions in ths
same iran sitting alone as judge, M, ;ht be DANCE
rous 10 the property, Tie lie, and even the liber
" Of the citizen 10 place too much power in
the hands OF Qn@ mln or one court is not safe oi
prudent, the check that each court has on tn,
| other by the scheme proposed is gone. The val
| ue Of this check well as oilers growing out d
tlic constitution, It's fiaHers and supporters wei
| Knew
On the const,uticnsli'y Of tie union Of iuris
dictions a"d tie objections co it which have snct