Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1827-08-28

this consructon, which is natural as IL is iusf
all the great objects OF the constitution seem TO be
| attained; and surely il would be uniusifiable to
| ABANDON this construction, and by literal inter-
probation, without regard to the reason and spirit
OF This great instrument ended for the benefit oi
the people, 10 dstort its meaning to their prejudice
| Inc same rule of construction must be observ cd
throughout the section. Ii must either be con
suued literally or according to the reason and
epHit OF the Instrument. III the word :" Judges
be taken literally, as designs, differ en-, persons
10 exercise the different jurisdictions, IL must be
interpreted literally IN every other respect. Upon
TINS principle how are we to cons.rue that part OF
the iiih section, which requires that the Two
f1ouses OF Assembly shall, BY Joint ballot, appoint
IjudSes IN ChaDcery! IL II incumbent upon the le-
sisature TO appoint more than one Judge in Chan
Gerry! apprebend not; for in I7SS, the number
cf Judges OF the high Court of ChanceTy wac re-
'iuced to one; and no clsrnor heard about the
| Violation OF the constitution. 1t may perhaps be
coDtended, that the two Houses of Assembly
may, by successive appointments. comply with this
clause OF the constitution, and yet have but one
Judge In oifce at time. If so, the literal con-
srueton Is abandoned, and il is conceded tina, the
clause Is intended TO designate the eecting body &
'he mode IN which the judges are TO be appoin,eI.
In comparing the 14th section with other parts
OF the constitution, In relation to the other de.
| partments OF the government, we are struck with
'he difference in the pbraseology. In the 9th Sec
ton oil the constitution, it il said a. q Governor"
&c. lin the llth, I" Prvy Council" &C. in
the 18th, =" a Treasurer shall be appointed SC
&c. But In The l4th section, il is said, tina, the
two Houses of Assembly shall, by joint ballot, ap.
point judges of the Supreme Court of Appeals,
and The Attorney General, SC. Does this d fer
ence OF ihIsseology import nothing? Are we 10
suppose ihat the wise men would have used d.f.
:eTent words, clearly susceptible OF different
meanings, TO import the thing Are
we to believe that the articles aud the in
| the clauses above cited, were used conyertibly.
and without design? The definite article The mus,
have been used in one of two SENSES either as
referring TO the judges OF the court of appeals and
the attorney general sntecedenily existing or as
designating the General Assembly as the appoint
ing body, and joint ballot a. the mode in which
these officers OF the government should be elected
IL could not have been used in the first OF these
senses, because the judges OF the court of appeals
and the Attorney General were odrers not known
under the colonial government. and did not exis,
aniecedsntly to the adoption of the constitution
IL must have been used ;hen in the latter sense as
designating the appointing power, and the mode
OF appointment, aud not as imposing imperative
obligation upon the Legislature to appoint diffe-
reht individuals to exercise the different jurisdc-
lions. In confirmation of this idea, i, may be re-
marked that under the English, government The
appointment OF all the judges is vested absolutely
In the cTJtDn. This mode OF appointment though
1t compored very well with the monsrchical fea-
lures OF the British conitution could by no means
be reconciled with the republican notions of the
i'aners OF the constitution OF Virginia Hence the
necessity OF saying in The l4lh section that ss the
ft0o houses Of assembly lin exclusion of The ex-
ecutive shall by joint ballot appoint judges OF the
Supreme Court OF Appeals &c. The use of the
word &c shali' in the l4th section furnishes no ar
gument against this construction; for it will be Oh
served upon examination, that the same word
y shdfE sused IN every clause Throughout, the
constitution, whether il confers a t,,iylledpe n,
enJoins the performance of duty.
Arguments derived from reason and common
sense, particularly in the Interpretation of funda-
mental laws, are entitled TO much greater authority
than any precedent; however numerous or impo-
sing. IL Is Tor this reason that have presented
the foregoing general views of this subject Pre-
cedents. however are not wanting.
In May Ivy. three years only aRer the adm
ton OF the constitution, the fret court OF appeals
was organized IL the literal Interpretation of the
constitution commended for by those opposej TO the
| reorganization of the courts, can be maintained.
that court ought to have been composed of distinct
and Independent materials. No person should
have been judge OF it who was connected in any
other manner with the .dicial department YET
the legislature OF that period, containing too many
OF the members of the conv enton that formed the
constitution, thought differently. That court was
| not composed of distinct materials, but was con.
suuted o: the judges of the general court, Judges
IN chance!y, aud judges in admiralty. (y,d 10
Hen: Stat: So This &C, is conclusive as to the
| meaning attached to the 14,h sect. by the trainers
OF the constitution And contemporaries erposi>
to est optina,' because" (ssys Lord HoIil the
temper of the law makers is then besi knouD' II
1t had been the intention ofthe fraueis of the con
stitnfon that all the courts of the commonyy. IN
should be composed OF distinct material. th,, i'm
tenion would not have been so soon departed fro,n.
In The year l7S2, to remedy inc ony eniences that
were sustained by the people of the western mart
OF virginia. separate distinct coufi was establish
ed west OF the Allegheny Mountains, having gem
erai Juri~d'cton IN all matters both in Lam and
EqtatY, sup)ec' only 10 the confronting power OF
the court OF Appeals. (ilih Hen. Stat S5.l
Another instance OF the practical construction
OF TINS section OF the consiitcii n, is furnished by
one OF our existing courts The Special Cont 81
Appeals is composed Of the judges of the Court
OF Appeals, OF the gene al court and of the chan
Gerry courts. I'll te Is q complele amaig amaiion of
the three great branches of the Judiciary. The
Judges OF the general court may in their char.r-
ter OF appellate judges, be called on TO pronounce
DEGREES IN chsncery, and the chancellofs in the
same character, may be compelled to decide cases
arising at law. This is all that can be required nj
them under The new system. / am aware that
some of the judges of the general court obiec, to
sitting in the Special Court OF Appeals, al.dsi..
that u is an Unconstitutional tribunal; it is
considered by the majority of the Judges and nv Tie
great body OF The people, as NOT inconsisten, win
the constitution.
The main proposition with which I Sc, ont. viz
that the common law and chsncery iprisdic,ions
may both be conslliutionslIy exercised by The Same
individnal seems now to be established as well by
/ general reasoning az by precedent. sh,uld H.
disposed 10 rest this branch of the argun,,nt Le,.
but for the importance which has been attached In
opinions of he judges OF the general coa. in the
brated case OF Kemper & Hawkins. | pronoss -
examine those OPTIONS, with the view of ascs,tsirs
Ing The degree Of weight to winch the decision OF
the court - entitled. The point dscJed j.; -
i w chat a i.dg NJ he