Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1828-02-14

ST, nrgrfl-
ment has been resorted TO by the candid .-enties
men who have used it, These gentlemen, who
are rs remarkable for their industry rs for their
intelligence, must have observed in their cxarni-
nation OF the case OF Kemper and Hawkits TO
which they have so often alluded that that ara,I
, inent, though urged by some of the Judges, had
! no influence upon the majority of the Court They
cannot have overlooked the striking language of
Judge Tyler upon this subject They must have
perceived with him, that this argument is too
NICE u DEDUCTION that it is the business of the
tours 10 lnterpret, and not to amend the Conshtu-
tonic declare the true meaning of the instrn-
inent, and not 70 attempt to reconcile lis ahsnrdi-
ues. lhe same course OF reasoning applies 10 the
Legislature. IL is not province to alter the
Constitution, but TO carry into effect its pxis,in-
provisions III we were in Convention. we inigi.
win proprety, speculate about the policy of thi.
or that provision of the Constitution bat beur oil
an ordinary notwithstanding no power 10
chahge the instrument, are TO give 10 its IAN
suage It's proper construction, without reference 20
any supposed absurditics that NAV arise in its in
depreciation But, sir, deny that there is any alb.
surdity arising from this construction. what sir
was the intention of this part of the constitution:
" az 1t not intended confirmation OF the old
legal maxim, that emo man shall be Judge in his
own cause'' II So sir is there any abs,,rd;ty in
saying, that Court composed of twenty Judges
'Shali try any one OF its offending members. Is
there any danger of failing TO secure an impartial
tribunal: VIII gentlemen contend that majority
ot me intelligent and respectable persons who fill
'hese Offices Will, at the same time be felons? Or
VIII they contend that the Judges cannot try each
other, because, torsooth, they happen to sit upon
the same bench?
propose now, sir, TO examine the precedents
relied on by the opponents of this bill The cele-
orated remonstrance ofthe Court of Appeals in 49,
VIII hrst claim our attention. That remonstrance
should never have been cited as authority There
are TWO conclusive reasons why il should not be re-
gardea as binding precedent. LIST, Because the
harn IL. "A
co'iiilct with the conclusion TO which they have
arrived They admit that the Old Court of AppeaIs.
composed, as 1t was, of the Judges i'm Admiralty
Judges oil the General Court and in Chancery was
constitutionay organised. Yet they DENY that the
Legislature has the power 10 blend the Common
Law O Chancery jurisdictions. They rest this opi-
mon, as TO the diierence in the powers of the Legis
iature over the original and appellate jurisdictions
not upon any difference of phraseology in the con-
stutlon in relation TO the different courts but up
on some supposed resemblance between the Court
oil Appeals, and the EXchequer Chamber in En-
gland, where all the Judges sit together for The
purpose oil revising the judgments of the courts
below. The language of the constitution. in re-
iaton TO all the courts, is the same; and the same
course OF reasoning, which denies TO the Jegis
lature the power to blend the Common Law and
Chancery Jurisdictions, must DENY TO it the power
OF blending the original and appellate 1t is not
sir, sufficient answer to this TO saw that the o,;
gin0f and appellate Jurisdictions may be blended
not the rule by which the constitution should be
construed. But, in the Interpretation of that in
sTument, we should look TO the great letter If the
charter and declare, that the Jurisdictions may mr.
may not be blended, not because this or that con-
structon would be most convenient but barause
we md In the constitution ITSELF that itl Ier sc,i,,
ia est II
indy. his remembrance should not be regard
ed as binding precedent, because il is not ;,tdi
cIoI decision and being so considered, it was not
regarded as authority by majority OF the Judges
IN hemper and Hawkins. 1t moreover contained
an appeal to the people-looked like dissolution
OF the ACKNOWLEDGEMENT of revoIu,ion-and
Tor these reasons, was regarded by some of the
most enlightened judges of the General Court as
entitled TO weight.
The case of Kenper and Hawkins. sir is po,..
to be considered. approach this case with ex
IRENE dihidence, and am disposed 10 distrIIst the
correctness OF my own conclusions because tbev
come, In some measure, in conflict with the opi-
mons oil me enlightened Judges who pronounced
that decision. But, sir, l will not conceal nv
opinions; | will boldly avow them, though | NAV
incur the inputation Of arrogance and presutnD-
ton L will not be deferred from nv march
IN pursuit OF truth, by any inputations, how evcr
abhorrent to my feelings To what asked Mr. NJ Y
does the decision in this case amount! Three of
the judges to two admitted that the Jurisdictions
were not incompatible. They were unanimous
however, that in order to exercise bot, iuri.dic
tons the Judges must be elected and commission,
Ot fbn
friends OF this bill think the Judges were in error.
II 1t be true, (as is admitted by majority of tbc
Judges, that the jurisdictions are not ncompatibIe
ana that the organization of separate judicial de-
partnents Is not required by the constitution two
elections and commissions would seem TO be su
pererogatoTy. IL the arrangement of the iuris-
dictions, which is the principal subject IS left to
the control OF the Legislature, il would seem
strange indeed, in the trainers of the constitution
10 require In mat instrument, ttoO elections and
commissions; which are evidently merely acces-
SdTy TO the exercise of the Jurisdictions If the
constitution does not require different persons IN
exercise the different Jurisdictions why should it
require distinct commissions and elections2 What
good purpose can be answered by them? What, sill,
Is the object OF the elections! Is it not 10 secure
competent persons TO perform the judicial functions
What Is the object of the commission? Is il not in
ended to invest the person elected with the Judi
cial character! Are not these objects as well al
tanned by one election and commission as by any
greater NUMBER
But, sir, it has been contended that the two cleo
tons and commissions are necessary TO secure the
i1tdepeadence OF the judges Strange. idea. in
deed! What Is the conneXion between the end
and the means by which it is proposed TO attain IL,
How can an election or commission secure tbe in.
dependence OF theJudges? Their independence is
secured IN manner much more eilectual-by adj
equatc salaries and by tenure of office durino
good behatiour: and these, sir, are the only bar
riers by which their independence can be pfotect
ed. me election and commission were intended
for very different purposes, which have already
been explained.
TO test the correctness of the decision in KEN
per and Hawkins, let US see its practical oDeya-
ton. It's admitted by the majority Of the iudpes
that the Jurisdictions are not Incompatible Oyi-
ginaliy, therefore, the Legislature had tie power
to blend the jurisdictions, and TO require of The
same individual the exercise Of both But what
IS the effect since the organization Of the courts-
inc Legislature may pass the bill; but il this de-
cison be correct, how will il be carried into effect