Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1828-02-12

mere are Jest anu strong grounds of complaint
exsiinS against the present plan Of administer n
chancery justice, as occasionng unnecessary OK
pensc, delay and personal trouble and inconveui-
ence to the parties concerned; we will deserve
the severest censure from constituents if we
do not endeavor, at least, to find remedy: But
l, Is said, the remedy proposed by this bill is not
only inexpedient but unconsti,u,ion II either
ground be sustanablc, the bill of consequence
ought not 20 pass
There Is no member in this House. / presume
whois not tremblingly alive To the importance Oh
the latter ground of objection. No measure,
however popular, however obvious, certain and
extensive the advantages which il may offer oup ht
70 be adopted in violation of the sacred charter
upon which, rests all that is dear TO man. The
constitution IS paramount 70 every other considc-
ration anu that it may be really sacred and have
inc effect which properly belongs TO such an in
srument: no one ought, for single moment 10
doubt that 1t could, in any case, even under the
most pressing emergency that could arise, not in
state of war, be yielded TO considerations of ex
pedicncy knowingly violate it once and it will
lose the force Of fundamental charter and become
the play thing of the Legislature.
Let US now consider the great question Of CON
sutu'ionality involved in the bill under discussion.
Permit me, before L enter upon an investigation
OF The particular phraseoiogy of the Constitution,
70 make some general remarks in relation TO the
rules which should govern us in giving 4 costr,,c
ton 10 that instrument.
And first, sir, in the construction of any law
the plain and obvious object is, to arrive at the
Uue meaning aud intention of the Legislature;
so IN tie construction of the constitution the OBJ
lect should be, TO arrive at the true meaning and
intention oil tue people In adopting that Instrument
through the means OF Interpretation furnished by
the trainers.
In the construction of the constitution two ex-
treines ought equally to be guarded against
iaxity OF construction, on the one hand, which
would destroy the very nature and effect OF the in
rio, H.
DINER, which would cramp the functions of its
own creation, as to defeat the first and essential
OBJECTS OF government. II is not fair to suppose
'ne Legislature to be in the possession Of powers
uhueT the notion that If is expedient that they
should possess them, unless by an easy and natu-
raj construction, it be.seen that such powers are
not taken away; neither is il fair to strip them of
powers (even powers, which may by possibility
De abused TO the injury of the people,) merely be-
cause, by forced construction, the possibility may
exist that such powers were intended to be limit
ed.
Again; where the language of the constitution
is really doubtful as 70 the right of exercising any
power, the cxpediency OF exercising that power.
furnishes, in general, the best rule of construc-
ton.
We naturally and properly presume the trainers
oil the constitution to have intended that the differ
ent functions OF government should retain and ex-
ercise all powers necessary TO the prosperity and
well-being of the State. Hence, then, the plain
dicted by doubts. II ought to bereasonably clear
at least that the language of the instrument takes
1t away before we should give place TO the pre-
sumption, that the trainers Of the constitution had
imposed the restriction On the
other hand, where the exercise of a power is oh
Vousiy oil deleterious tendency, or perhans
even OF doubtful policy, it is proper to coustrne
doubts, growing out OF the case, into an nterdic-
ton.
Again. sir; although the very object of fun.
damenta rule is TO prevent the exercise of discrs-
ton, yet, OF necessity, degree Of discretion must
be exercised. That discretion which is immeJi-
ately applied to the Interpretation of the instru
'nent, must Immediately extend its influence IN
all the subjects on which the instrument tselfacts
Hence, then, the proPriety in giving interpreta-
uoh 70 the constitution, OF taking into view the
whole range OF o. jects contemplated by H.
And again; the constitution is an arbitrary lim;-
tatlon OF their own power by the people them
selves. They might have gone to work without
any written fundamental rules. If they had done
So theIr Legislature would have been supreme.
L he powers OF the Legislature would have been
commensurate, in relation TO all legislative sub
lects with their own and subject to Limitation only
by the instructions of the people, express or inn,
pied From this position, the conclusion is clear
that this Legislature is in the full possession Of ey
cry Legislative power, of which they are moi do
pFiyed by the constitution.
In this particular, State Constitution is direct
~ the reverse OF that of the United States. That
OF the latter gives powers, that of the former linn
Us them. 1t Is therefore properly said, that the
congress OF the United States have no powers be-
yond those expressly delegated, and their insener
able incidents, and that the State LepisIature
have all the powers pertaining to legislation which
are not expressly or by fair implication prohibited
Now, Sir, lot us look into the Constitution and
see whether the right of the Legislature, TO make
he wholesome provisions for the peor,Ie contained
IN that bill, is prohibited. For if the right be not
prohibited. we lave seen that it belongs to us.
W hat IS the language of the Constitution The
4th Sec. reads thus; 90 The two Houses of Assem-.
bly, shall, by joint ballot, appoint Judges of the Su
'feme court OF Appeals and General Court, Jud-
5es IN Chancery, Judges of Admiralty, Secretary.
md the Attorney General, to be commissioned
by the Governor, and continue in Office durino
good behaviour. In case of death incapacitv oT
resignation, the Goveonor with the advice of the
PiVy council, shall appoint persons to succeed in
1iiice, to be approved displaced by both Houses
These officers shall have fixed and adeouate saI,
res, and together with all others holding ucrative
liiices, and all Ministers of the Gospe1 of ever,
denomination, be incapable Of being elected Nom.
1ers OF either House of Assembly or the Priv
Council" IVY
Now, Mr.. Speaker, this is the only clause II, tt,,
Constitution, which, in any direct manner. nre.
cl1bes a system OF judicatuTe, or the mode Of an
pointing the Judges. ''The two Houses Of AZ
ernbly shall, by Joint ballot, appoint Judges of the
supreme Court OF Appeals and General Court Jud-
res in Chancery, &C.
Is there any prohibition in this language upon the
'ower Of the Legislature, to unite the office of
and Judge of Common Law in the same
person Is there any negation here or elsewhere
n the Constitution, upon The exercise Of this now
'r! Does the instrument seem TO contemplate
my thing more than that there shall he a Court
II Appeals, General Court, and Court of ChgnceTv
&C. with INT persons as Judges to administer i,is'
ice IN EACH II think not. Then, Sir, ifit ca9 bo
hewH, that these Courts and these Judges, will
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