Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1828-04-18


and the Guesonis is, whether the constitution Is 10
be made to impose restraint, by a forced con
structon OF the words, Judges in ChaDcery.-
The argument stated from the rules of professional
law, is evidently below the dignity OF the subject;
would attribute to the trainers OF the constitution
distinctions as well those by which philosophers
are wont to class the different subjects or king
doms OF natural history S upon these nice diStinc
tons between the modes OF proceeding at Common
Law & III Chancery, raise system oil Improbable
and unjust restraints upon the proper exercise of
the powers given by the Constitution for the public
good. The simple and obvious rule of construc-
ton which admits the obligation to create par
ticular courts, one 10 be endowed by legisla-
tive authority, with the capacities OF court
OF dernier resort, and others to be endowed
with the power 10 administer law according to
equity. fufils the design of the constitution as far
as these objects be understood as being
within the plan OF the trainers; whilst the
ing which rejects this as the true meaning, goes
to dispute the legality of powers which have, in
TACT, been exercised under the constitution, from
the commencement of the government: po,cerS
which, in truth, form the genius Of the constitu-
ton, found in competent existence, anterior to
Courts orjudges; being numerous class OF pow
ers, such IA the power OF enacting those laws,
deemed, by the legislature, proper to secure the
public happiness, security and welfare, the right
o! repeating, altering and amending all laws, and
the right OF prescribing the rules and regulations
to the other departments, whereby the execution
OF the various laws enacted, may be properly car
ried into: Thus, by statue law, jurisdiction may
be given to one court and taken from another,
and duties assigned 70 the judges, according 10
the public necessities. II is not intended by this
view OF the subject, to lose sight of the mode of
appointment. All the Judges must be made Jud-
ges by joint ballot, Sc; al! the Judges must be
commissioned by the Executive, and they are
bound TO perform this act; but these judges are,
when appointed, the proper officers, to whom the
legislature can assign any judicial duty they may
think right and proper: and, in doing 50, they arc
10 judge of the propriety Of preserving any forms
connected with the system of administrative JUS
ticc. Then, sir, the General Court will not be
less in character as Genera! Court, when its
Judges shall exercise chancery jurisdiction. 1t is
true the present Chancellcrs, will be required to
assume the character Of Judges OF the General
Court; they viii have less Chancery jurisdiction
than now, and another kind OF judicial duty will
be assigned them with an addition of salary to eve
~ Judge Of the General Court. All this, (Said
MIR. c., can be done without lessenng the proper
OF the Judges. The subStrattIm of
change OF jurisdiction, or assignment judicial du-
ty, remain the same as before, when competent
salary is fixed by the same law which imposes the
duties. He said, the concession on the
part of the friends of this BILL with regard TO the
addition of compensation TO the Judges. was all
that could be asked. They had admitted the con- I
s,itutonal tenure, Of judicial independence to be
good behaviour; they had agreed in the mode of
the appointment, but they denied that question (
involving alone the organization of the courts and
the quantity character OF the duties to be per-
formed by the Judges, was connected with the vi |
taity of the judicial office and the character oft
They denied that any Court off
Common Law or Chancery could exist, in this
without the licence OF the Lexis
iature; because, Sir, they were aware that the
whole body otthe common law, and Chancery pro- [
ceedings with such exceptions as the legislature
thought ut TO make, owed lis existence to statute
law; and, whilst they made this distinct denial !
they admitted the duty imposed upon the legis |
laure to create particular courts; but these were
courts, which belonged TO the system Of admin !
strauve justice in every country. They gave no
other Interpretation to tho words, Judges in Chan
rery but TO create an equitable resort of powers
and modes OF proceeding as a component part og !
This great system ofJustice, and this covered the
whole ground OF constitutional obligation, wblst
left TO the legislature, its native character of SUI
'eriority, and its inherent powers OF deciding and
interpreting the great rule ofpublic necessity.
But, said (Mr. G.) il is argued that this bill zen
destroy the constitutional separation OF the tribunals
or. impeachment. Upan this objection, bein,r
made, one idea occurs OF curious concern,-for no
one has ever ventured TO give to the house, in
distinct terms, what would be the nature of that
behaviour for which one Of our Judges could he
impeached With the aid Of the Illustrations, fur |!
nished this debate. we might infer that, the max
IN OF the English, constitution, which created an !
executive responsibility in the King was the mi
vi!eSe OF the Judges, even when resisting the au-,
hority OF the legislature, acting in its absolute
sphere of duty. 1t was fair he said TO infer ,
The probability OF impartiality as much under /
one organizations as another. Judges would ins
event, be tho triers Of Judges. Again, sir. the !
Virginia Constitution only looks TO the qualification
81 the judicial bench, whilst the Federal Consti |
luton expressly contcmPlates further prosecution I
IT law, after removal by sentence of rnpeacbrnent
Judges under the Virginia Constitution might find
sufficient motives O. personal honor TO preserve
heir impartiaty, since their degraded companion
would remain safe under the Egis of the c,onsti
tuition, from further prosecution lie said. the
egai difficulty suggested grew out of the arbitrary
views oil gentlemen, upon the subject of judicial
powers, as they were called: he considered them |,
luhes III they were powers, they were deriya-
I'VE IRON the laws passed by the Legislature They
nave seized with avidity upon the example of =
Judge Of the General Court, exercising both Iegal
md equitable jurisdiction, but charged with nm If
cnce peculiar 10 the duties of his equitable forum.
md after merging his station and character "a a
Judges Of the General Court, in the technical idea
u Judge IN Chancery, they bring the culprit 70
he bar Of the General Court, and make him ex
,ept to this authority and claim his seat upon the
bench. He said, gentlemen had the credit of max
ng a caiueion Of their judge: he was a chanceI-
OR la order TO bring him before the Genera! Court
ma a. soon as be reached this tribunal he beco,uo
what they denied he was before Judoe If tbc
General Court. Mr.. Gregory said ne relied ubon
he stubborn doctrine, that no man could deeiIs in
MS own cause-and, under no circumstances could
Z be argued, that a different principle would be
lpheld. All these objections, however. prooeeJ.
I'd upon the idea Of incompadbility Of jurisdiction
assumed as constitutional doctfine when in FACT
he majority OF the Judges in Hammer & Hawkins
came 10 different conclusion, although gentlemen
rave quoted this decision authority for their o,
Jews Of the question. Upon tho same idea Of
Judicial incompatbility mustr the position taken
n That case, maintaining the necessity of a new
commission. Let these fanciful distinctions be
'nly given up, and then the whole subject reCerq