The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1874-01-08
lFor the Dlspatch.1
Tho t.Sauty Court.
icii's xr
Adjourned at 1 p. NJ.

| Adjourned aI L = We
lFor the Dispatch.l
The Comfy Court.
THE massage of the act of Assembly known
os ihe 9 county court bill attracted as much
attention and excited as much legal inquiry,
| nrobably. as any other production or the
LEGISLATURE which enacted it. The act throt-
fled one OF the most ancient and time-hon
ored institutions of Virginia, so that be.
Tween the date of its passage and the lst OF
August, when it took effect, proceedings IN
| il were nothing but the dcatn-ratLle, grow
ing faiuter and fainter till lost in the utter
dissolution of what had been known as Tue
= county court" in Virginia from us COLO
nal days. ..o
Now as we'll as then the question natll-
r,,ly presents itself whether this act IS or IS
moi Constitutional; for to the standard oil
tho Constitution must be referred especially
MI questions of the judiciary established for
fine State. All admit that well-regulated
and efficient iudiciary,-st stable, enduring
challenging respect and commanding con-
tidence and obedience, is fundamental ne
cessily of the Commonwealth, and that it
must not be left to depend on the varying
wills of the same men or of different Legis.
latures. 1t must be point fixed and I'M
movable amid the whirl Of the conflict of
life. 1t must be rooted and founded on
embedded in-the organic law of the State.
The change made by this act was reyo-
lution-it utterly abolished what generations
had known rs the "county COURT
The crash of such fabric is startling to
men, and sets them to iDquiring, What is there
that we can rely on as stable among us?
This court is treated Of in two sections
of the Constitution. Article 6, section l.
which is:
There shall be supreme court of ap-
peals, circuit courts, and county courts.
50 The Jurisdiction of these tribunals and
the Judges thereof, except SO far as the same
is conferred 6y the Constitution, shall be
regulated by la,o."
Article 6, section 13, says that there shall
be monthly terms, held bga judge "learEcd"
in the laws of the State, to be known as the
county court judge, who shall hold office
for six years.
The Jurisdiction shall be the SINE as that
of the existing county courts, except SO far
changed Jy ldec.
Let US first examine the first section,
which in fact is the clause establishing the
courts.
The term "court Of appeals" circuit
court,D and "county court" used here, are
not general, vague, or indefinite: they have
become technical terms, having fixed and
defined meaning, ascertained by long usage
as well as by statute.
The trainers of the Constitution must be
presumed lin like manner as testator) to
intend the technical meaning when they use
technical term. Now, for more than one
century the county court of Virginia has
been court of niSi prius as well as chan
ccry court. 1t has also been q court of oyer
and tcrminer and court of probate; and
when the trainers of the Constitution said
there "shal be county court" they did not
mean an Indefinite something which should
be called "county court" but they meant
to secure to the Commonwealth continu-
ance of definite tribunal, such rs had been
known to its people for generations, the
name of which had become technical term
so far that the name Of county court bad a
fixed and ascertained meaning, comprehend
ing in the two wordsa description of a court
of niSi prius, &C., &c. .s.
This is a practical view OF it. A different
view would open the door to untold evils.
IF the Constitution attached no specific
meaning to the words "county court" but
simply meant any court, with any jurisdc-
ton, which any Legislature might choose to
set up BY the name of county court, then
they attach no fixed Specification to the name
of the Supreme Court of Appeals OF to the
circuit CORTLAND all these courts are at the
mercy or caprice Of the bare majority of each
Legislature, who can at one session, or ut
one day, even, make them all niSi prius the
next, mere surrogate courts; and the next,
purely criminal, without any civil jurisdic.
ton. s..i
We must construe the words "county
court" in this section TO be technical, and
to mean court such as the county court has
been kn0,pn to be, or else we are at sea, with
a Judiciary not established by organic law,
but dependent on the daily changes of each
changing Legislature.
l take it, therefore, that the Constitution
does not confer on the Legislature the power
to abolish the county court (for that is the
avowed intent) under the cover of the pro-
vision to regulate 6y lao its jurisdiction.
This last clause Of section says regulate
by law. Now, to regulate don't mean to
destroy, aud in this instance it merely gives
to the Legislature a power to make such
needful enactments as shall adapt its existing
and continuing jurisdiction to the changing
subjects of litigation or phases of society
e. g., TO empower court TO grant divorces,
acts Of incorporation, &c.. &C., &c.,-but
not to take from it its fundamental jurisdc-
ton as court of MISE prius and equity. To
take which away does not "regulate," but
destroys abolishes.
Does the 18Th section conflict with this
view? It says that the county court shall
he held by q judge learned in the law OF
Virginia. Thai term indicates what sort OF
work the judge IS to do. What need Of
Judge learned in the law to sit like puppet
to grant motions for probate and administra-
ton, Sc, where no conte 81 crisis
The jurisdiction, 1t says, shall be the same
as the eristing county court (this shows the
model they had before them) except so far
as modified by the Constitution or : may be
CHANGED by law" These five words last
used are the sole ground Of any claim Of
constitutional authority to alotsh, "to get
rid of" THAT was the current "phrase ~
one OF the most important courts, the one Of
most general resort In the State, which has
! existed for nearly two centuries. In fact,
the word "changed" is used here for the
word regulate employed in the LIST sec
ton.
At the best it can be claimed TO give such
authority only By implication, and can we
believe the Convention to have left SO grave
a matter as the power to subyert q court -or
as anything pertaining to the existence Of a
judiciary Ito depend on implication Had
the Convention conceived the idea OF giving
the Legislature power to abolish either
branch Of the Judiciary they would have put