Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1825-09-16

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shors OF the people of your district by resuming
your residence al Richmond!
will first consider the question in the strict
technical point Of view in which you have present.
ed it..
You liken il to the conveyance of an estate upon
condition subsequent, and say, that If the per-
Torrance OF the condition has been rendered inpos-
slble by the fcofors, the estate becomes absolute
Now, you are aware, that no set form Of words is
necessary 10 Constitute contract. 1t matters not
by what cifcumlocution it is expressed, the sub
stance is to be looked at, and to be carried into
effect according TO the intention of the parties,
be collected from the whole instrument The act
IN question, or the condition, if you like the phrase
better, provides, that the shall be holden in
Iichmond, and you shall reside where the court is
holden, that is, in Richmond. How. then, is the
performance Of this condition rendered impossible
by an act which, in SO many words, directs you to
reside in Richmond The Only difference between
the two operates against your argument For, as
you were bound to reside where the court should
be holden, and the Legislature had the supreme
control OF that matter, rested with them to reirc
you 10 remain in Richmond, or remove elsewhere
Tie phraseology Of the act Oh which you rely had
rot the effect, nor was II intended to enlarge your
privileges, but to increase the control of the Iesis-
lature. The condition on which YOU held your
freehold was, in substance, that you should reside in
Richmond, such other place the chancery
court LOT inc 1iStrlct OF lSlcnmOnu, sDOuu ue ul-
rected by law TO be holden. How, then, is the
performance of that condition rendered impossible
by a.law which erects new district with court
at Lynchbmg, leaving the place for holding the
court for the Richmond District unchanged and in
express terms continuing your residence in Rich
mond? Had the new law been silent the sub
ject of your residence, you might with some plau-
sbility have contended, that as you were Judge of
both the Richmond and Lynchburg Districts, and
.fhP ,0u sb0 i1a fbe nj,
where the court of your district is holden, you
might have resided a. either Richmond or Lynch
burg, but to reside ut Needham, even in such case,
would have been out of the question.
You say the legislature had no more right to
change the terms of their contract with you, than
they would have to change the terms of their con-
tract with any other individual. II your appoint
ment to Office and the laws prescribing your duties
made prior to your appointment, can with propre-
fy be viewed contract. the terms of which on
your part 10 be performed ascertained by those
laws and cannot be changed without the consent of
both the contracting parties, position which will
presently show is unsound, yet these terms have
not been substantially varied by the law in ques-
ton. II is variation in words not in substance.
You admit that tie law under which you received
your appointment, in effect, required you to reside
IN Richmond. The law g. 1878 did the same. The
first law pointed out your residence by general I'M
certain provision made certain and special by an
other provision of the same law. The second ar
rived at the same end by more direct and shorter
process. The FIRST in effect, placed you in Rich
uond, reserving power to continue you there. or
remove you elsewhere. The second found you In
Richmond and continued you there. How they
conflict, in what the second altered the terms of
your contract contained in the first, / coafess
am at loss TO perceive. Neither l perceive
the point of the argument drawn from the repeal of
ehe 9th section OF The act of 1901, by the acl of
lsl3. Thelatt act whilst il does repeal the pro-
vision of the of 1901, regarding your residence
5i1s9 GatU in substance, re-enacts il. How this
latter act, which in express holds you to the
pre- existing obligation of residence, be con-
sirued 50 release you from that obligation, own
cannot perceive. on say it is expost fac,o. Laws
which are Justly condemned as post fac.o, you
are aware, relate 10 crimes and punishments; or
DO you conte.,d that the Legislature have no pow
to change in form even the laws relating your
Office, after the fact of your appointment?
But, sir, this is far 100 narrow view 10 take Of
this great question, for great every question be
which brings the Legislature and Judiciary into
collision. 1t assumes additional importance from
the consideration that it involves another question:
how far the Legislature may vary add TO the du-
ties of Judge without impairing the Independence
of the Judiciary, OF which, we can hardly be too
careful A principle for he introduction of which
we are indebted TO the modern Improvements in the
science of government, and without hich no form
OF government, however excellent in other
poets, can long be productive Of practical good.
This, with great Difference TO your enlight-
ened understanding and greater experience in Lee
Gislatve and Judicial matters, is the and ouly
point of view in which to consider the subject.
The analogy which you seek 10 establish between
the duties and authority OF Judge, as prescribed
by law, and the terms or conditions oil contract
between individuals, has no existence.
Nothing is clearer, than that neither party 10 a
contract vary its terms, without the consent of
the other, and if the analogy which you rely
applied as strictly you contend IT does, the Lee
gslature could in no introduce the slightest
change in our Judicial system without dischargng
the Judges from their duties, unless they previous
Nv consented This doctrine is too monsrous to
require serious consideration, and did l not find
myself led 10 ii by the principles which you have
sssurp ed, and which you rest your refusal to
ecute an express law, should not have thought it
necessary 10 state it. shall be at no trouble to
refutc it, convinced that il is only necessary sa-
tisiy you that your premises would lead TO such a
conclusion,
/ shall assume 1t, then, as a maxim in Virginia
politics, ihat the Legislature have the power 10
vary or add to the duties OF Judge, in all cases,
not inconsistent with other features oil The consiiiu-
ton, unless tie variation or aLdionbe great as
TO impair the Independence of the judicial tenure.
This Limitation obviously necessary, Otherwise
the duties mi bt be varied nc.eased to
compel the Judge oiesIgn. Ii Is not necessary
for me, OH this occasion, 20 draw the line. Eases
may be imagioed in which ii might be difficult Tx
IRENE cases might be put OH DO sides 10 shew that
the power wo I'D or would not be rightiully exer-
cised. The question now before US, is, has that
power been rightfully exercised in your case? In
what, let ask, has the requsition, that you shall
reside in Richmond, contained in the law Of 1918,
impaired the tenure of you. oihce? Has imposed
any new and onefous burthen upon you: MOI
That was the place appointed Tor your residence
when you accepted the Office 1t was the place at
hinh uon nc.naIIv reslded when the la,y txas en-