The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1883-01-07

| Judge Hinton was Simiihrly lOcuteu Win
his counsel, Messrs. Blair, Bernard, and
Budd.
The first business was the reading by the
clerk OF the record OF the proceedings oi
the day previous. The commissions and
certificates OF qualification OF the new
judges we're spread ut length upon the re-
cord.
JCDGE BURKs's CASE.
| Colonel Guy presented In writing to the
couIt calm statement OF Judge Burks's
claims to the oilice-recting his election,
commission. and qualification, and claiming
that under the provisions Of the Constitu.
ton he was elected for the term Of twelve
years. 1t asked that the question be con.
sidercd solely upon its merits, and that no
advantage OF position be given either claim
ant; in other words, that both be consid.
cred in the light Of contestants.
CONSULTATION.
Mr.. Budd. Of counsel for Judge Hinton
said that as they had had no opportunity OF
examining this paper, they would be
pleased il the Court would grant them Z
few minutes indulgence for consultation
| The Court assented. Judge Hinton and
his counsel then retired, and took with
them the paper.
THEII ANSWER.
In about ten or fifteen minutes the party
returned, and Mr.. Budd read an "answer"
to Judge Bu. SIS "petition," denying the
ayermentS OF Judge Burks and asserting
/ that Judge Burks was elected for an uneX-
pired term, and is not, and Judge Hinton Is,
entitled to the seat, &c, dc.
cnrc,,,-corpr .crrn pop
As a preliminary question, Mr.. Henry
read the following:
To the Honorable judges Of The Sapremt
Court Of AppedtS Of Virginia:
II is due no less to the honorable judges
who compose the court, and whose seats
are not contested, than to the honorable
T. C.. Burlls. who claims the right TO sit a,
a member, and whose claim is now to be
tried. that special court be formed, in
whole or in part, of judges OF the Circuit
| Courts, who are not so situated rs TO make
It improper for them to sit, as provided in
So of Art. 6 OF the Constitution, and in
| il. cb. 1856 Of the Code of 1873, p. 1851.
The Constitution provides for this spe-
cial court 90 to try any cases on the docket
Of said court Ito wit, OF this honorable
court. in respect to which majority OF
the Judges thereof may be so situated as
TO make it Improper for them to sit on the
hearing OF the same"
In view OF the great importance OF the
matter. and the fact that this is the first
time that this high tribunal has been called
upon to pass directly upon the question
involved in this motion, the counsel fol
Judge Burks would beg leave to enter
somewhat at large upon the discussion OF
the grounds upon which this motion is
made. feeling assured that their action in
doing so will not be misconstrued by the
court. and that each member OF it will be
but too glad to have it pointed out to hm
il he stand in relations to this case which
make it improper for him to sit.
The grounds upon which judges should
he held incapacitated to sit in cases I'm their
courts have been frequently discussed in
England and America. These discussions
all proceed on the ground that Judge
ought to be impartial in the strictest sense,
or. as il Is well expressed in Article IN.
OF the Massachusetts Bill OF Rights, 1t is
essential TO the preservation Of the
rights OF, every individual, his life,
liberty, property, and character, that
there be an impartial Interpretation OF
the laws and administration OF justice. II
is tie right Of every citizen to be tried by
Judges as free, impartial, and Independent
as the lot of humanity will admit"
In order TO ensure this impatiality, il
has been held that certain facts must be
taken to render tie Judge incompetent TO
sit. whether he was actually influenced by
them or not, for the rule Is one based upon
public policy, and not upon the action OF
the Judge in the particular case. A short
reference will be made to some Of these
circumstances, which will illustrate the
sensitiyeness OF judges on this subject.
fThen follows long list of leading eases
Gncluding the Kentucky case OF Buford)-
English and American several OF the lat
Ter from the Virginia reports. As TO the
definition of the word "improper" Dr.
Worcester is quoted; as are also several
ljudpes OF this court who declined TO sil
| in certain cases because they thought il
would be improper for them to do So.
In the case now before the court it i
respectfully suggested that the whole
court is so situated as to make ii improper
for any member thereof to sit. II involves
the right OF two contestants TO a seat upon
the court. This court must elect presi
dent and a resident Judge, each of whom
will be entitled to au additional salary
Each member, therefore, must be interested
as to who shall constitute the other mem.
bers Of the court.
In the matter OF the Office OF president
the interest Of each member is more dis
tinct. as that Office has heretofore been filled
In the first instance, and IN case of vacancy
i'm succession, according to the seniority OF
the members Of the court, and there Is q
sor-- t. sArtfxv of fkA cnxat
contestants.
The last Legislature, by joint resolution,
declared in effect that there would be five
vacancies In this court on 1st OF January,
1883, and fixed day to fill them. Accord
inly they elected the four judges to whom
this motion Is addressed, and then pro-
ceeded to elect Judge Hinton. Should
these four judges, therefore. determine the
question involved in this contest they will
be passing upon the actien Of the Legisla.
ture in pursuance of which they were
themselves elected.
In addition TO these suggestions II ap'
pears by the Journal Of the House OF Dele.
gates OF the sessions Of 1S77-'78 and
I87s-79 that Judges Fauntleroy and Lacy
were both members Of the Committee fol
Courts OF Justice, to which committee was
referred the very question involved in the
contest here; that the said committee (set
mage 292 OF the Journal OF 1S77-'7S) report
ed that "iudges elected to I'll vacancies
hold only for the unexpired term OF theii
nredecessors"; and further reported that
Judge Blair and Judge Montague were sc
elected. And at the next session the same
committee reported 10 similar mannel
upon the question (see House Jour
nal. page 45), and the said report resulted
In resolution found In the Acts OF 1S7S-'9
on page 10. Afterwards, upon elections
!. ~ flno hodu 10 I'LL the nlaces held hy