Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1825-10-28

or impose on a Judge even judicial duties. 10
III this er, thNt the legislature cannot impose
on, Judge amy duy-that ali the duties OF
Judge are imposed b. higher authority that they
are imposed on him by the constitution, as mel
dent 10 the nature o. his office, which is to expound
and administer the law OF the land cases arise,
and are brought BEIGE him, in the form and MODE
prescribed for the government of parties htigdnt
by the Law. OF the land. The legislature should
not be understood, ON any occasion, even IN judicial
matters, prescribing TO, or commanding the
JUDGE. Law, according to Blackstone, is rule
OF conduct, prescri5edby superior to an inferior
who is bound 10 obey. The rule being prescribed,
by The superior, to the inferior who is the subject
of the law, the Judge, who is no otherwise con-
cerned than as his duty, imposed by the constitu-
ton requires he should administer the law, merely
expounds and applies the law, TO those TO whom 1t
is prescribed a rule, and who are bound to obey
it. The Judge who expounds and applies the law
cannot, without absurdity, be arded as the
object or the subject OF that law which il is has duty
thus to administer. Laws which organise and estab-
sh courts in particular places 10 which SuitorS are
bound to resort for the litigation OF their rights
laws which prescribe terms, or spaces OF Time, In
which all who complain of wrongs injuries must
seek their rights by OF law in order TO their
| redress and laws which prescribe the forms and
rules for the conduct OF causes in court--are all
laws operating upon and made for suitorS; and the
1 e,
such laws, and who may be regarded as wholly out
of view in enacting them, except as 1t Is known
| that there is judicial power In the government,
will cause them, in the discharge oil his Judicial
function imposed by the constitution, TO be observ-
ed Jy those for iDhom they toere made. In none
OF these things is the Judge assailed he Is sili
independent upon the legislature, acting in obedl-
ence TO &c the laws of his creation, performing his
peculiar functions, according his discretion,
and at his peril. An act of the legislature which
coRl0ands the Judge to reside IN q particular
pkdce--to make it his dOmicii-- has no analogy
to any Of these laws Courts are as indispensable
to the administration of justice laws {; and, as
they do not exist cf themselves, and though pro-
vided for, have no, been organised and established
BY the fundamental law, they must, OF necessity,
be organised aud established somewhere oy the
legislature. The establishment of constitutional
courts is no more controul over judges than the
passage of law fixing the course oil descents-
both instruments of the Judges function
i'll The administration of justice. But having or
ganised and established courts, and appointed
Judges who are independent OF legislative conroul,
aud hold their Offices by constitutional tenure,
justice may be well and duly administered without
prescribing judge particular place OF residence
Ii by no means follows, ii the legislature may not
| exercise this power over the person OF Judge,
that he may hN himself In some out-ot-the-wsy
place, which would disable him TO attend properly
10 the calls of duty, and thereby subject the COM
munity TO inconv enience icithou remedy Such
conduct in a Judge would unquestionabiy be a
direlicion OF duty, and breach Of the constitution
al tenure of his office, for which he might be dis
missed from office and punished by the tribunal TO
which he is amenable under the constitution. No
act OF the legislature can be necessary to prevent
an evil OF this sort-a fundamental law provides
theremedy, and the only remedy that be applied;
and this law, as | have hitherto remarked, is as
comprehensive for lis object words could make
il. But The other hand, what security would
there be for the independence of the Judge, If the
! legislature may exercise the power of compelling
him to reside where they please? If such power
were conceded TO the Legislature and they wished,
Tor any cause, to ger rid OF Judge, it is evident,
they would have nothing more to do, than 10 pre-
scribe o him such residence as would compel him
to resign; OF, 10 harrass him with useless and vex-
atious acquisitions, in no wise essential the due
and faithful performance of his judicial duties, on
the plea of public convenience, until they had ac-
complished their object, 1t would be difficult TO
imagine more despotic power, or one capable Of
holding the Judiciary in complete subsection
20 he will of the legislature. 1t seems to me-
Il ereiore that the question resolves itself into this
Either the judiciary are Independent upon the le-
gislature, and the Legislature have not the power
contended for; or, the legislature have the power
contended for, and the judiciary are not indepen-
tons must be true and the other false, and if either
beproven l apprehend it is decisive of the question
Ii has been my endeavour 10 establish the first
If have succeeded in this, there is an end of the
controversy on princpie-fI have not, then have
totally misconceved the character of our govern
ment, and sovereignty and legislature are in Viz
ginia convertible terms.
There Is popular notion on this subject which
distinguishes between acts of the Legislature af-
feeling the Office prior to the appointment of
the Judge, and acts poSterior to his appointment
This view OF the subjec have hitherto noticed
because was The view IN which the controversy was
then presented; but as do not find any thing ma
terial on that view of the question since urged.
consider il unnecessary to add any thing TO what
have already said. II is true that there NAV be
additional objections to the exercise OF the power
of imposing conditions after the appointment of
the Judge, so far as particular Judge may be con-
cerned; but the same insuperable, constitutional
objection, applies TO the exercise of the power
contended Tor before, well as ajter the appoint
ment OF the Judge, have attempted to shew in a
former article.
Nor are such acts of the Legislature merely TN
constitutional. II freed from this objection, thew
are in my view in high degree impolitic and
unwIse They limit the range of choice, in the Sc
lection OF Judges, to the exclusion OF MANY who
most distinguished for integrity and talents In
department, the requisite qualifications for which
are 20 rare and difficult to be attained, the most
pernicious consequences may be expected to flow
from such exclusions. The difficult attainments
which qualify man to be Judge ARE OF at all times
to be found every where; and few who possess them
would be willing, If perchance they should be able,
to make the serious sacrifices which would often at
tend change oil residence and the breaking up of all
their domestic arrangements, in order to become
hewers OF wood and drawers of water''-espe-
cIally when the power, 10 which they would thus
submit themselves, might the very next year compel