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

cludc that construction. "The two Houses OF
Assembly shall, by Joint ballot, appoint Judges OF
me Supreme Court of Appeals, &C, and the At
orncy General" Now, Sir, appeal 10 any GEN
teinan accustomed to pathological investigation, to
say, what Is the meaning OF the definite article
he, in this passage: Must il not mean one OF
1.-TWO things-muSt il not refer, either TO the JUDGES
OF the Court of Appeals and the Attorney General
| as officers antecedenty existing, or 70 the two
Houses of Assembly as the appointing bodu. and
Joint ballot as the mode in which the Judges. sc
shall be apponted' That it cannot have the tirs,
OF these meanings, is obvious, because i presume
II Is known to every gentleman in this House,
that the Court OF Appeals and ;he Attorney Gener-
al did not exist in Virginia before the adoption of
the Constitution. Ii must, then, be taken i'm the
latter sense. And if the trainers Of the Constitu-
ton had intended different constructions thew
would have used the indefinite article and said
| The two Houses Of Assembly shalt. bv Joint hal
! LOT, appoint Judges of a Supreme Court &c
ant: an Attorney General" IL is in vain. Sir. 10
say, that the trainers Of the Constitution were ig-
horaht oil this nice distincGon-for they were men
Oh letters, well acquainted with the force of Ian
guage and have moreover given evidence of
tnelr knowledge of this distinction in other clauses
OF the Constitution, where il is said O. Governor
treasurer Privy Council shall be appointed.
;gaih' or, TINS section further provides that,
IN case oil death, incapacity, or resignation the
Governor, with advice Of Council shall upDoinf
persons TO succeed in Office" Sir (said Mr. n I
| aPprehend that the two sentences of this section
are IN pd'1 ndte'id and refer to the same subject:
ana being so, the word appoint'' is entitled 20
'he same construction in both. Now, Sir. in the
second sentence, the meaning is obvious: that in
case OF vacancy from death or other c,uses tho
Governor shall have power to appoi,t. that is to
eho1Se,,-to elect persons 10 fill those vacancies
Apply the same construction, Sir, TO the word an
point In the first sentence and Won win NJ onco
perceive that the section intended TO provide
Tor the election of the Judges and not for The o.
gG1izoti0n of the Courts
Ry
word in the section its .fitH ,neani,,s. And when
TINS is done, the only Legitimate object of inter
probation is attained. BY different construction
you give TO the whole clause double men,,ing-
ms requiring the Legislature to organize the
I courts and then 10 appoint the Judges
IDLY, proceeded mir. N, | said would ,ro,,o
the correctness OF this construction from contem-
poraneous history. What, sir, was the condition
OF the judicial tribunals of Virginia at the time
| oi 'he adoption OF the constitution? During the
colohiai government, were not the various iuris-
dicuons; common law-chancery, and appellate
indscrlminateiy exercised by the same individuals,
| " we're they not all, sir, centred in the General
court; sir, the trainers of the constitution had
never SEEM at least in Virginia, the different jurs-
oicuons separately exercised: Are we to believe
them that they intended to introduce an entire in
noVation-to make radical cha gre in the Judicial
oystein-t 10 sanction principle entirely new and
10 the UNIFORM tenor OF their own expert
encc! If so, would they not have given 10 The
! Legislature some clear and unambirTous ewnres-
( sion OF that intention? Would they have used the
vague language contained in the 18th section nc
| the constitution! -
I Mr.. n. said, that he knew it had been contend
J ed by gentlemen on this floor, and by Judge Tuck
er, IN his opinion in the case of Kemper and Uayv
kins that this amagamation OF Jurisdiction was
OF the greatest evils of the colonial Government
! ana that 10 remedy IT, was one of the chief in
Guceinehts 10 the formation Of the constitution
But ii so, STIFF this evil was so onerous and on
pressiVe-so ruinOu5 10 the interests of the peonle
would not the trainers of the constitution with ali
their Observation-Disclosures, too, as they were nv
me occasion, have pro !ided in that instrument a
remedy so clear that il could not he mistaken a
clause so definite and specific that there would
nave been no room left, for inference or iInplica
uoh-Wouid they, sir, in a word, have provided
ior that purpose the 18th section cf the conslitu
ton
3diy. The correctness Of this construction NAV
be inferred from the and spirit of the m
slrument. What asked Mr.. NJ was the object
oi thc constitution oil Virginia.; Was il not sir
intended to settle great fundamental PRINCIPLES
as IL designed, sir, TO supercede the necessity of
legislation! W as IL hot rather intended to nre-
scribe proper bounds 20 the Legislative will IL
this be So sir-if it was designed as a charta, pre-
scrbng the form of government and reseryino
certain inalienable rights to the people--and not
intended as code of laws, where was the neces-
sly, IN the attainment Of these objects To do more
IMAM IS already done, according TO this construc-
tion oil the constitution Was it necessary TO do
more than, to provide for the Legislative, In pre-
ference TO tie Executive appointment of the Jud-
ges, and TO secure the independence of the Judi
clary by adequate salaries and permanent tenure
OF Office W as it necessary, sir, not ONLY to do
this, but to organize the courts and to prescribe
the particular mode in which the various iurisdic
tons should be exercised Was there any danger
TO be apprehended, from leaving the exercise of
the power OF arranging the Jurisdictions TO the Lee
9lslatdre! Sir, as well might the trainers of the
/ constitution have made perpane1 Ut rule upon any
other sutJect-as well might they have substtu-
ted for the code now your table, system of
I constitutional td1cS, 10 govern in all time TO
come-as well might they have enacted a perpe-
tual finance bill; for, sir the principles that GOV
ern us in matters Of finance are not more liable
TO i1uciuatc with the change of times and the vi
cssitudes Of fortune, than are those which should
regulate the organization of the Judicial establish
fnents, with the progress OF population and the va
rying condition of society
thus 1t seems that the correctness of this con.
srucon Is sustained, by the language of the clause
itself, by contempOraneous history and bv the
reason and spirit OF the instrument. We NAV then
nier, that there is nothing in the 18th section of
the constitution, which either in direct terms or
by iair implication, requires that the common law
and Chancery jurisdiction should be kept distinct
might cite, sii, IN support OF this construction
various pTecedents; but 1 rely upon reason and
not upon authority. | might call to the attention
Oi tire House, the original organization of the court
Df Appeals IN 1879, three years only after me A.
doPon Of the constitution. At this early period of
our history, when the true meaning Of Ike const-
tuition could not have been forgotten, law was
passed by the Legislature Of Virginia CONTAINING
At tie time many persons who aided in the forIna.
ton oil the contribution, by which law the court of
Appeals was composed Of Judges Of the General
Court, Judges in Admiralty, and Judges In Chan.
Gerry. AT period somewhat later, 1882, a law
was passed, by which the District court west Of the
Allegheny Mountain, was established with 10th
COT larsr ar.I