Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1827-08-28
FOR THE enquirer
stem of Pp,ginid

A
dent to all those who have observed, with the least
degree OF attention, the prevailing dispositions oil
! the people. change, in a matter so important
as The administration OF justice should not be eff
| tected without due deberation. II becomes III,
duty, then. OF all persons who wish the co,ins els
of wisdom to prevail in the approaching change 10
endeavor TO enlisbt-n the public mind, a. TO the
nature oil the evils TO be remeded, the bet mode
OF relief, and the constitutional competency of the
| Legislature to effect reform. Opposition will be
unavans; and those who are satisfied with the
Judicial tribunals, as at present organized, should
not waste their strength in an Intellectual effort Ia
emoarrass the proceedings OF the advocates of a
new system, but by co cooperating with them, should
endeavor to preserve what is valuable in existing
institutions, and by happily combining the views
OF both parties, present TO the public q system
which shall be at once free from the objections
that may be justly urged against an,iqua,rd essb-
lishmeats and violent innovations.
Ibe constitutional competency of the legislature
tn re,organize tue courts of the common ~ ealth,
though much debated during the last session of that
body, is subject upon which the great majority oil
the people are not very ~ ell informed. / propose
IN the course Of thi- essay, to take i,a-ty re.
view OF the judicial history OF Virginia. and shall
endeavor to shew that the exercise OF the power,
claimed by tie advocates of the Judiciary Bill,
during the last session II the Legislature, is MOI
only reconcilable with the spirit of the consritu
ton, but u sanctioned by the cotemporaneous ex
positions OF its trainers, and by the uniform practice
oil the government. In making this remark, am
not 10 De Understood as applying ii to the particu-
lar bill that was before the iast legislature an.
ply " 10 the end proposed by the friends OF that
oiiI, and not to the particular means by which thew
aimed TO attain it. That Common Law and
Chancery jurisdiction may both be constitution ally
conhded to he Judges OF the General Court, and
that the Chancery Courts, as at present orssnized
may be abolished, without infringing upon the in
dependence OF the Judges, may, think. be clearly
demonstrated
The 18th Section of the Constitution provides.
that Z" the ftoo Houses of Assembly shall, by
JOINT ballot, appoint Judges sf the Supreme
Court OF Appeals, and General Court, Judge, in
Chancery, Judges of Admiralty, Secretary aud the
Attorney General, to be commissioned by the Go.
vernor, and continue in Office during good behs-
viour." 1t is commended, that the proposed mod
ilcaion OF the judicial system 10 in violation of
ihi- clause OF the constitution. Ii il be So il il
either because the trainers of the constitution in :
tended that the Common Law and Chancety Juris-
dctIons should be exercised by different persons,
or because the proposed change iniiinges upon the
Independence ofthe Judiciary.
Let US in the trst place ascertain, whether i, is
required that the two jurisdictions should be kent
distinct? The i4th section of the Constitution is
extremely loose and indefinite, and admits of much
latitude in its construction In order to interpre,
1t properly, we must advert TO the history of the
period at which the constitution was adopted -
During the Colonial Government, and at the time
OF the adoption of the Constitution the court. of
Virginia consisted of the County Courts, which
possessed then, as they do now, Common Law
and Chancery Jurisdiction, and the General Court
which consisted of the Governor and Council FOR
the time being and possessed general jurisdiction in
all cases at Law and in Equity, and AppeiIat,
jurisdiction, over the decisions of the Inferior
Courts. There existed at that time no Cour, n,
Chabcery, distinc, from the General Court and
County Courts, and Court of Appellate Juris-
n har han h.G
decisions OF which court appeals might be taken 10
The Colonial Assembly, until the reign of James the
IL aher which period, appeals from its decisions
were aiio's ed only 10 the King in Council. Such
was The condition OF the judicial Tribunals OF
virginia, when the constitution WAS adopted. In
interpreting this clause of the constitution I've
Gust suppose that its trainers used the language
contained III H., with some reference to the existing
state OF things. They had never seen the Common
Law and ChanceIy Jurisdictions exercised separates
| iy, by different individuals. According to their
experience, the two jurisdictions had always been
unIied. Are we, then, to suppose, ih,t thew in
tended by the vague and indefinite language used in
| the I4h section of the Constitution, TO produce a
| radical change in the Judicial System OF Virginia
and to inir oduce principle entirely new, and
contrary TO the uniform tenor of their own exneri-
ence: Is 1t not more rational 10 suppose, that il
they had intended TO Introduce important an in
novaton, they would have given to the Legislature
some clear and unsmbiguous expression oil that in
teEtioH?
In Cases Of doubt, there can be no better rule q,
Interpretation than that which may be inferred
IRON the reason of the instrument. (YaueI b. Q
en- H. sec 2SI) The object OF the constitution
was 10 settle great fundamental principles 10 pro-
tect the rights Of the people, as well as 10 secure
he interests OF the officers OF the government I,
! was not intended TO supercede The necessity of Ie
ss!aion, but to prescribe proper bounds TO the
legislative viii. 10 the attainment oil these object.
1t sufficient for the 18th section to mark on,
the various Jurisdictions that were thought
Ty Tor the adminIstfato OF Justice to direct the
mode IN which the judges should be appointed and
TO secure their Independence by the permanent te
azure Of their Offices and by the adequacy of tbe,
salaries. When ibsse things were done oil IA.
great objects OF written constitution, in relation
! TO the judiciary department OF ihe governm,ot
were answered. ANY thing further would hav,
been worse than supererogalof5; It would bay,
been irsmmelling, unnecessarily, The proceeding,
OF the legislature, aud substituting for tie improve
meats, suggested by the experience of succesdino
generations, the affected wisdom of our ancestor :
Is there any hing so dangerous ia The exercise Of
the power Of arranging the squItsble and common
law jurisdIcIions, that It canno' be con6ded to til.
legislature? f. il Of those points that we ara
TO suppose the trainers OF the constitution would
have guarded with especial care? For my part,
can see nothing incompatible with the nature oil
our iDsiituiIons in coBfiding to the legislature the
power TO remodel ITS will the courts of the com
mOnwealtb, provided the common law, equitable
and appellate jurisdictions are preserved, the ssls.
res OF The Judges held sacred, and the tenure oil
4 their Offices is undisurbed 10 suppose that thi.
! power is not denied TO the legislature, is a con.
sTuction much more Consistent with the characters
OF tie great men, who framed the constitution
than any other. They were not 90 arrogant as "a
presume, that they wiser ihsn all future yea.
ersiious. Aprrsbeading no danger from ihe exer
else OF this power 10y the legislature and knovi,s