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

eonrerso) Unless appointed and commissioned a.
soch. The opinions OF the majority of the Judge,
establishing this proposition are, as conceive
eieafiy inconsistent with themselves. They admit
mat the DUTIES of the judy in ehancery aud Of ths
S@he'ai court are not Incompatible, and that The
CONSTITUTION does not require that the iurisac ion,
shsuid Dc KEEP, distinct and be exercised by differ.
eh' INDIVIDUALS Ia the next moment il is asserted
a' he Judges cannot constitution all perform thess
oouoie duties, unless appointed and commissions
az Judges In both characters. One of these position.
must De incorrect. both cannot be maintained. ii
the constitution does not require that the two u.
risdic'ions should be exercised by different indvd
nais, 1t evidently looks upon the judicial office
as one AMI indivis,be. is the Judge who is APP
pointed and ommis,ioned, and not the man who
may happen TO be assigned to per form the duties
OF Judge OF the general court, OF chsnce llos.
different construction would eonvic, the trainers
VI 'ne constitution, of the grossest absrrdiiy. They
I would be saying TO the Legislature; you shall
nave power 10 blend the common law and Chance
~ Jurisdiction, yet order exercise that pow
er, you shall perform the solemn farce of eiecng
and commissioning the same man, at the same
Tine, ftotce as judge. Wise men seldom perform
works OF ,supere ga,ioD. and the members of the
convention would scarcely have requir ed of the
! Leg sia;ure, The performance of this superfiuous
! duty. The election of the Judges by the general
assembly, is intended 10 secure competent persons
to perform the Judicial functions; the commission
intended 20 cloihe them with the Judicial charac-
ter Surely these ends can be ell attained BY
one election and commission as by any greater nun
Der. As soon as a person is elected and comn,s-
stoned Judge, he is invested with all the rights
aud powers that p-ria 10 the i,.diciai office. II
Is Tor the Legislature then, TO prscfibe the obecs
| upon which these powers are to be exercised; and
In s II may do wihou, interfering with the rights
OF the Judge.
The error into Which the judges Of the general
court have fallen, seems 10 have proceeded from,
their looking more to the existing state of things
Than 10 the principles of the Constitution. They
were elected as judges of the general court and
then commissions referred To them in tina, c.arac
ter; hence they inferred that they NUT be reap
pointed and commissioned, before they could exer-
else the duties OF judge in chancery. This was
evi isn'ly delusion All the Judges ave elected in
The SINE manner, by JOINT ballot, and there j..
no technical form OF commission prescribed by
| the constitution. Those judges were appoint ed
oy J1int ballot and commissioned by The governor
anu this is all that the constitution required TO en-
able them to exercise both jurisdiciion- Thi.
must be the conclusion, unless II is contendei that
'he particular form OF the commits sion adopted b
| the governor tor the time being, is paramount TO
the constitution. and change the nature OF the
Judicial Office. All these difficulties proceed from
considering the office Of chancellor different in liz
character from that OF common law ldge -
| But, we are not warranted in this conclusion by
any ming In the constitution. With The exception
! OF the county courts, which clearly constitute a
distinct tTibunal there is known that in sirmeut
but one judi c:al office, and the fucio q per,snn..
to that ONCE, ae performed by all the Judges in
The cominonw eaiih. 1t may be difficult 10 recon-
Gle this idea TO pre- notions or with
the facis, that the Judges of the sever al courts are
sworn TO perform the duties OF the offices pertains
! Ing to their particular courts II should be recol-
lectei, however, that the oaths of Office are n,e
scribed by the Legislature, and by the conslu-
lion, and may be ALTERED or sbo ished as the Ieeis
ature may think fit.
| But that the new elections and commissions are
not necessary, may be inferred not only from the
foregoing general reasoning, but from what some
persons, may, perhaps, consider more . con,I.sivs
= numerous precedenis. The former iud e. of the
zen. Court, ChanceTy and Admiralty sat in the OLE,
Court OF Appeals, Wi bout being elected or com,ns
stoned as Judges of the Z. OF Appeals The presen,
Chahc-ilors and Judges of the Gen. Court sit in the
| Speeia Court OF Appesls, without being elected or
commissioned Judges of that Court. Vel The
old Court OF Appeals was declared by the JUDGES
IN their celebrated Renaissance to the Legislature
IN iiSS, TO be consttuIonally organized: and the
decisions OF the Special Court Of Appeals are ye;
recognized as law. The Judge of The Dis,rc,
| oour'' west OF The Allegheny Mountains, exer-
cised common law and Chancery Jurisdiction: re,
we have not heard that he was hon red with two
elections, or burdened with double Commission.
ihe inconsistency of The opinions of the Judge il,
henper and Hawkins, aud the ludicrous absu.di,y
oil these duplicate honours are equally s,,,kiog
s-nher Inc Jurisdictions are incompatible and can
not be blended without violating the constitution
or they are not. The Judges Of the General f,our,
nave admitted that they not incompatible. and
the conclusion would seem very naturally TO fol
40" rom The foregoing reasoning, hst the Jude Is
aifeauy dpP0Hted and commissioned under the
constitution may exercise the Jurisdictions indi,
cTinihaieiy, IN such manner the Legislature n,
9eSsna'e' without suijecting themselves 10 IN
disagreeah!e necessity, and the Legislature to the
snpefHuous trouble OF a new election
&c those VINO have not critically exemined the
suVjec', ms argument may seem out OF Mace
bu. all those VINO have read with attention The
Judiciary Bill, that was before the last Ie,ila,r.
niusi nave observed that the last section, (Which
was in-efIed In compliance with the views of ,hs
MAJORITY OF the ju iges in Ksmper and Hawkins \
Is IT'S most objectionable feature That section oro
ceeus upon the superstition, that the Offices ri
Chancsiior and Common Law Judge are dis,inc,
In their character, and that q new election and
commission are necessary to enable either TO dis
charge me duties that properly pertain to the o1er
! Lec,'oh supposes ibe eXefcss Of free will and
the elective body cannot be confronted by Iseis,s
i've acts Although the two houses of Assemble
u tne judiciary BILL OF The last session had Passed
would, without doubt, have re elected ell the ex
's'HS JUICES, yet thu power TO elect them rte.
| eupposeS Tue power 10 refuse TO elect them. and
mere can be no clearer pro- o-l.on than that the
Legislature cannot Consistently with the Cons,;,,
'ion' place the Judges in situation in which bv
the most remote Possibility, they may be elected
nom their offices during good behaviour II !.
manifest, therefore, that u the ne,y election and
commission be necessary, the Legislature cauoo,
carry the new system into operation, without the
concurrence OF the judges. IL Is on THE accoun,
'ha' nave endeAVoured 70 show ihst the decision
OF the Court in Renpef and Iian kins is incorreer
II have succeeded IN DING the, haitsr nvseu
mat these most important propositions ere es;sb
hsbed' LIST, That The squilab.e and common law