Virginia Argus. [volume] (Richmond, Va.) 1796-1816, 1811-01-18

49, o. >'"iSNs anu all must admit,
that IN no sense, can i,s inaebendcnce
be touched by the legislature and y,t
for them TO transform in an instant. so
important part as the superior courts
OF law and equity, by uniting their Sc
parataRd distinct jurisdictions in the
same Hdges, would certainly leave no
room ~ doubt of their dependence ub.
on legSldtive pozUer and control: not
withstanding the Constitutional pr. vi
sion to the contrary: and more espe.
cially, il It should be- provided, as was
formerly proposed, that the Judge who
should refuse the additional comma.
sion, should be, as to that commission.
substituted by an esecmtioe appoint
ment /: so that if The scheme should 90
down, 1t may happen, instead of on
judge, dealing out both law and equi-
~, there may still be wo for that pur
pose in the same circuit. Surely then.
there can be no diversity of opinion
about the absurdity of this feature in
the proposed plan for all must unite
IN the opinion, hat this eaecut,vr 1udee
IN relation to the constitution, woalo
he MONSTER, as he would not be
appointed to fill any vacancy unaer the
constitution, but, under the iegisiutu,e ,
which would, moss clearly, be giving
up the principle Of an indebendent ;,tai.
c,ary, TOR dependent one contrary to
the opinion of the rOhole court in the
caseof Kemper and Hawkins, and to
every principle of tie constitution.
But again: how are these il, isdic-
tons to be united, but BY joint ballot ?
They cannot; may / ask then, II the
legislature should not be rs free in the
appointment OF q judge in chanceru, as
IN The appointments of a 1udee at Rzv 2
and so Vice OerSu: for such is the can.
sttution and yet they would not, by
the proposed plan because Judge Ct
the general court must be appointed a
chancellor, and vice ve,sa SO the last
appointment is of necessity conGned
to the first, which involves the suble CT
IN this absurdity, that in the one case
the legislature have free choice, but
In the other they have not.
lnnumerabIe arguments might be
lddueed here in support of these OBJ.
Iectipnsj but it is coz fdently believed
they 'are'unnecessary.
Bu3secondly, as to the policy of the
measure, If it were practicable.
1 have before noticed, that the ce.
neral court, before the revolution. ex.
ercised original jurisdiction both at
ha1o and IN equity and appeal TO all
who know any thing of that epoch,
whether the exercise of these jurisdic-
tons by that court, was not objected
to as serious evil because it was
very often found that after trial on
the law side of the court, the equity
side had become toe. inexorable to az
ford rslief andthis naturally follow.
ed tron the impressions which had
been made upon eScourt, in the trial
at law. Hence De coapention, in max.
ing the constitution, prosided for the
appointment OF JUDGES IN CHANGE
Rr,' which would have been unneces.
sary, IT 1t had been intended that the
general court, as before, should in any
form, exercise chancery jurisdiction.
1t is true, the county courts were
suffered to retain both jurisdictions !;
but this was because they were limited
to their counties, in which it was sup.
Posed great number of small cases
mightsoccur, from the adjustment of
which more good than evil might re-
suit; and more particularly, as their
errors might be corrected in the SUI
Perior court; established upon the
principle of an independent iurisdicti-
on, uninaaenced by any thing which
had occurred on the trial at law; but
now, to destroy that Jurisdiction, would
be az least, to subject us to all the evils
OF the former s) stem.
But another objection grows out of
the practice of the courts of chancerv.
whiclscannot be changed: it is this (;
that ipsa court OF chancery (Which is
not eaekase at law all persons howe-
yer retnotely interested, against whom
a decree can be entered, must be made
parties to the suit: then, as il seems
to me, the larger the districts, Twi.hin
reason] for equitable jgr;sdiction, the
better for l believe, whether in reIa-
ton to society, or for the convenience
OF the suiiors in the courts of chance