The enquirer. [volume] (Richmond, Va.) 1804-1815, 1811-02-26

To THK EDIToR or THE ENouIRRE.
The assumed ...ns ,.., ,ytac. III one o! you.
fate pape~~, drew ny attention to the essay up
on the SUBJECT, which has so much, and So oher
cngcossed The time and attention OF The Gene a.
A sembly. II co1,a ms aluniounded in ins,nu-
atioa that judge TJier has changed his opu,io
IN regasi 10 the constitutional uoctrine involved
in The recently proposed change OF our systemtof
chancery courts. He has, on the contrary, nevc:
swerved from the decision which he once So
femnly pronounced, that there IS no constitution
al objection 10 the exercise by the same tribu-
MI Of both common iaw and clisncery powers.
The opinion III Kcmper and Hawkins, a case Sc
Frequently cited, on sa.;-'ss 10 the constitution,
in relation to this subject, cannot be misunder-
ST cd, b. one. who sees ,hro' an unprecedented
medium. Nor does that opinion conRict IN any
degree, with th,., which he expressed against
the celebrated remonst rance Of 1873, the history
OF which. the assumed Wythe knows nothing Of.
The grounds OF Tat remo Astrsnce were fol-
iows-when the district court law FIRST passed,
the judges OF appeals, thou consisting ut eleven,
Were directed to meet or the purpose of elect
ing their clerks, in order to sci the new mach-
nery in motion. The Judges received their ap
pointmsnts, without an objection, except on the
score of salary aud this objection did not, at
first, receive couniensnce which was produce
tive OF any Inconvenience. Before the new sys-
TEN went INTO compleat operation. however,
which gave it birth /; for this reason. that it
seemed 10 contravene the spirit of the coustitu-
Slon To blend chancery and common law juris
dcron in the SAME court Judge Tyler could
no, theu discern that spirit, nor could MIR Pen
dietoo point bis finger TO the clause of the
stit,on which forbids the joint exercise of those
powers by the same hands. He then supposed,
that if the Powers were increased, SO should be-
the salaries Of the Judges This principle deri-
we'd from The fountain of natural justice, & sane
toned by the constitution, was one, about which,
no difference OF opinion existed. But decision
upon it, by the Judges, who were personally IN
terested in its operation, was subject OF great
deliracy. And therefore, Judges Tyler, Mercer,
Henry, and Cary readily dcci,rsd their will n,-
ness 10 perform the duties assigned o
them and resolved to leave the question of adj
dit'onal compensation to he decide. by the JUS
tice and liberalty ola future Legislature. Nos-
withstanding this determination, and after tie
clerks had actually been appointeda remonstrance
was drawn up, rendered flr subscription to the
Judges of the court. Against this remonstrance,
Judge Tyler protested, did the three other
judges last named and II was laid aside, at the
suggestion OF the real Wy.he, whose mcmnrs
will be ever dearto IL is country He pTopos {,
that schisn should not he hazaded among tn
judges, on question of SD much delicacy an
importance The advice, however, was final
overruled by ma ority, who extra jaIiciaiiy d
clded III favor OF the remonst"snce. Exrs. judi
clay, tor there was no case before the court, e.
which its jurisdiction could be exercised -
And thus, ma jority Of the judges, boldly put ,
negeVe ON the law of the land, by an extra ju
diclai decision, in which they were personally
int rested.
A. the ensuing session of the Genera, Assem-
bly,, law was passed, establishing a new court
OF appeals, to consist of FIVE members to whom
was also gwen both chancery aud common law
powers; and who no longer ,ubiect to the la.
Dors OF circuit, no longer hesitated about en-
erclsng that mixed jurisdiction. They gualfc d
before the justices of the peace, as the law GER
calmly authorised them to do, and then pro-
ceeded, IN obedience 10 the law, to finish the
old business in conjunction with the members o!
the old court. Judge Tyler suggested to Judge
Mercer, the improperly of holding two court.
OF Aprcais,a monster in Jurisprudence, unkuowr
10 the constitution The result of this sugges.
ton wss a conference among the judges, which
for the first tri', disclosed publicly, the fact,
that the judges q the new court had qaaiif-
Ell
In this meeting much warmth and resent
nnent were expressed at supposed derelicton
ofprinciple on the part ofthosr who had accept
ed the new Offices; and it broke up with refu
sal 70 act ti.e Old court docket. The iudg
es who had qualified to the new commissions,
could not legally SIT IN any other court, thanthat
winch those commissions authorised them to
hold A reu,onsrance was then drs wn uo, de-
nyirg the power OF the legislature 20 destroy a
constitutional court, by there mere act, without
Impeachment or trial;
Judge Wythe was Lett in his old Office and
had no cause to complain, except that MS two
brothers had left him. The rest of the Judges
declared their Willingness to execute the
law, which had be-" so long the wis., &. .ntrr
cs; OF the country; notwithstanding they had
beer iefi Git q ;hs court ofaPPeais. Ii was al
ways Tie opiron of Judge Tyler that equity
should folio, ,he law; that the great mass Of
Ma t.tI orb To a Il
Their interests should not be prostrstcd at the
foot stool OF any set of meR And he supposed
that the power of Holding court of equity could
be safely confded TO the judges Of the gene.
raj cour, az the County courts, or the court oil
appeals. This piece ofhistory have from tie
judges own lips
A FRIEND OF VIE PEOPLE