Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1828-02-12
VIRGINIA LEGIsLATURE.
HOUSE or DELEG.f7,ES.
CIRCUIT COURT BILL.
~ = " = II I3TI T..
Speech If Mr.. Old.

Speech If. Mr.. DID,
Mr.. Old said, that III awaiting himself Of an OPP
poFluniiy OF making few remarks upon the sub
iect under consideration, he was act,latct by no
n;hcr motive, than a wish to declare the reasons
that would govern his own vote: he entertained no
idea that the opinions of that House would be inlu
cnced by any thing that lac could say upon the
subject; but knowing, as he did that this bill from
as very nature, must enlist very powerful int
rest III Its favor in every county of this Common
wealth; and knowing, moreover that some of his
constituents and warmcst friends were anxious for
Ms passage, he deemed it act of Justice TO him
sell, TO state the reasons that would compel him TO
vote against H.
He believed, most conscientiously that if the
bill passed it would be in violation of the Const-
tuition, and could not possibly be carried into ope-
ration; IL proposes, sir, 10 lganae the General
courts and Courts OF Chancery, by making the
Judges OF the General Court, Chancellors and the
present Clanccllors, Judges of the General Court;
and the first question that presents itself for con-
s.Iera)on is, whether the Constitution gives TO
MS body any such power? Ii j. provided bv that
instrument, that the Legislature shall by Joint
ballot OF both Houses, appoint Judges of the Cen
eial Court and Judges i'll Chancery, who shall
be commissioned by the Governor, and hold their
Offices during good behaviour They shall be
appointed and commissioned by the Governor! Does
this bill propose, that these Jurisdictions shall be
conferred 10y appointment ard commission? No,
SIR, these important changes are to be effected:
Chancellors shall be made Common Law Judges,
"'lu NOIiliiul Law Jtt3eS 80 be made Cham
celorS, by simple act of Ie eisiation II, sir, YOU
have this power; If yO can authorize one person 10
exercise the powers ola Judge in Chancery with
outhS being appointed 4 commissioned in the man
prescribed .the Constitution you can another.
You cannot be limited in the exercise of this power
70 any particular indN dual or class of individuals
ANA may, therefore, at Your sovereign viii and
pleasure, invest any pers0n with the powers and
jurisdiction OF Judge in Chancery, without ap-
pointmcnt, without commission, without reoujring
even oath OF office TO secure rs far as NAV he
the proper exercise OF the powers and jurisdiction
50 conferred. Yes, sir, if this power exists at all
1t must be general. and you are as much autf1o-
rizcd TO transfer this power and Jurisdiction 10
o!her individual in the community, as TO Judge
OF the General Court. Sir whatever NAV be the
opinion OF the Legislature, 10 what ought to De-
the fact in my opinion, is incontrovcrtible that
tue courts oil Law and Chancery, are recognized
and regarded by the Constitution, as separate and
distinct, and that The powers of neither can be ex-
erciscd, under chat instrument, without appoint-
1nent, and without distinct commissions for that
purpose, from the Executive branch of the Govern
meut: and, sir, the Legislature may pronounce in
the most solemn and imposing terms that this ;uu
IS Chancellor, and that a Judge of the General
Court; yet they will neither be the one nor the
other, until they are regularly appointed by Joint
ballot, and ecciyc commissions TO that effect from
The Executive. Mr. Speaker, this bill has not only
10 encounter the constitutional objections OF its OBJ
ponenfs here, but must, III the course oil its ope-
ration, be exposed 10 the constitutional objections
OF the Judietary for, suppose the bill passed. and
JUDGE OF the General Court grants an in
junction., or in any other manner, exercises his
newly acquired jurisdiction, and the case is car
RED to the Court OF Appeals, with exceptions to
the jurisdiction Of the Court below is il not AZ
least, probable, that the decision of that tribunal
would be against the assumed jurisdiction? and
tat the decisions of the Chancellors, acting as
Common Law Judges, would, ia the same manner
tic set aside, aud thus the operation of your law
defeated But, SIR, tiiis Is surprising, that these
Chancellcrs and judges OF the General Court
would, upon the authority of your law assume ti,e
Jurisdictions proposed 10 be conferred but is there
any probability of their doing SO? On the contra
Ty, have we not the strongest reason for be-
heving that they will not? The case Of Hammer
and Hawkins is directly ia point, and to my mind
settles the question, 20 what course the Judges
of the General Court will adopt upon this subject;
that case under precisely such an act Of the
Legislature this will be if il passes--an act
transferring Chancery jurisdiction ia particular
cases, TO the old District Courts, and the General
Court, when Il was wise and as able "A body IS il
nOw is, was decided, unanimously that The
law was unconstitutional and refised to execute il:
and is il not perfectly fair TO presume, that the
present judges OF tina Court, VIII under the same
circumstances decide IL the saline manner that their
predecessors did: and should they DO So what will
he your remedy' BY the Constitution, they are
10 hotd their Offices during good behaviour: would
u be misbehayiour, within the contemplation Of
that Instrument, for . Judge Of the General Court
W ~ att ~ hll' tAtIcisC tue jurisdiction
Judge IN Chanccry! or, would it DO misbehavi-
our IN Chancellor, 10 refuse TO act as a Common
Law Judge: Suppose you believe the affirmative
Of this proposition? Suppose you should consider il
mlsbehaviour to hnpugn your sovereignty, by dis
regarding your wishes; have you the riphtfuI row
er TO enforce Ohedicnce' What arc vo,ir means
and how would ihcy be applied 50 as TO effect this
ohiec2 For we are not The t-gcrs Of the question
tnat may occur, upon the refusal Of those Judges
% acceptthe double jurisdictions: we cannot en-
force thor obedience, or remove them from office:
They can only be removed by trial and conviction
OF misbehayiOur in The Court of Appeals But we
are told that & will be their uty 10 accepts that it
~ the duty Of all 70 yield obedience 10 The soye-
reign will Of the people but What is 10 he cons-
dered as his expression Of fhat sovereign will?
Not the opinion Of this Leg. stature, presume.
when u conflicts with thc COnstill ion SIR an.
one Of those who think, tat here is a wide dillsr-
ence between TIE Sovereignty Of the people, and
The sovereignty Of the Lcgis iure. The mem
bers Of thisiiCdse come here with certain delegated
powers, ani with equally certain prescribed restfic-
ions-Tostfictous, imposed foF wise & .lutafy pur.
poses, by this soDereigr people; and every act Of
ours in violation Of these restrictions is an act Of
ours, as ndigiduais, and not as representatives we
AZ elfs'ed ~ ,ho p'irpcss e e:ting within The