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

| 1870 was subsequently referred 10 IN the
report OF the Committee for Courts OF JUS
tice of the last session US one Of the grounds
for electing Judge linton.
This is cause OF great importance. IL
not only interests your Honors, but other
| judges Of the Commonwealth whose terms
OF service depend upon the decision TO be
rendered in Il; and 1t Is fortunate for the
court, in the embarrassing circumstances
which surround 1t, that the Constitution
has provided another and wholly disin-
terested tribunal for It's trial, whose iudg-
ment would. not be likely to incur that
criticism which has been so deprecated in
some OF the cases to which we have re-
ferred.
1t has appeared 20 us obviously proper,
and the case OF Moses Us. Julien, 40 n. H.,
expressly declares IL to be the duty OF any
party to controversy knowing of any fact
bearing on the disqualification OF Judge
TO sit in the case, to make the same known
TO the Judge. And this appears to be a
matter OF duty to the judge himself, be-
cause even the most circumspect judge
might, otherwise, not happen to have his
mind drawn TO disqualifying facts and cir
comstances, and thus overlook and act In
disregard OF them. ever though they were
actually within his knowledge.
| We have in this view made to the court
the foregoing presentation. We have now
only to add to 1t this suggestion-viz.,
that the propriety Of any judge sitting in
cause Is chiefly for himself to determine
upon the facts suggested to him and any
further facts known to himself; for, In the
very nature Of things, the judge himself
must generally know more fully than any
one else the facts bearing on the impro-
priety of his sitting in cause. And, in
deed, on any question OF impropriety re-
sulting from Partially, prejudice, bias,
preference, or other form OF personal feel
Ing. the judge himself has, generally by
reason OF the private nature OF such feel
ings, almost exclusive knowledge OF the
facts which should govern his action.
For instance, as to any disqualification
suggested as resting upon the judges pre-
vious connection with or action upon the
question in controversy, the Judge con-
cerned is himself generally best able to say
how far he has already committed himself
upon the question, how free his mind and
feelings now are from any such previous
committal; whether he can readily, unre-
luctantly, and without embarrassment, re-
! tract opinions formerly expressed, or with
draw from positions previously occupied
and to what extent his freedoms of action
might be fcttered or restrained by any cir
cumstances attending his former connec-
ton with the matter; and we may add,
rs pertinent TO the case now in hand,
whether he Is so impartially situated in
mind and feeling that he would be dis
turbed by no concern in disapproving and
setting aside legislative action which APP
pears TO have been, TO a greater or less en-
tent, founded upon and induced by his
own former judgments, opinions, and ac-
tions.
And as to any disqualification resulting
| from having to decide upon the claims of
an associate In whose votes in the organi-
Zatiou OF the court any Judge may feel an
interest. or entertain an expectation, either
in his own behalf or in that OF any friend
or an associate with whom personal inter-
course, which between judges OF the same
court must necessarily be frequent and
intimate. and likely to extend through
wears, would he on the one hand pleasant
and agreeable, or on the other hand dis
tasteful, the Judge himself can best say,
and, indeed, Is perhaps the only one who
can saw, how far in the choice OF
such an associate his interests are con-
cerned, or how far his feelings IRE in
yolved, and how safely he can trust him
| sell to rise so far above the level Of ordi-
nary humanity as to smother all such IN
| terests and feelings, and without regard
for them, or any OF the least influence from
them. TO decide on the question to be SUBJ
m:tted with that complete impartiality
which the sacredness Of the judicial func-
ton ineXorably demands, and which the
instinct Of all mankind has, by painting JUS
tice blind. indicated as her crowning attri-
butte.
Respectfully submitted.
JAMES ALFRED JONES,
GUY IL GILLIAN,
w. w. Henry,
of counsel for Hon. Il. G. Burks.
Mr.. Henry explained that this brief was
written before the president OF the court
was elected.
OPPOSITION.
Mr.. Blair said that this paper was OF
such an extraordinary character that he
hardly knew how to answer 1t. 1t had
seemed to him that when one member OF
the court, from an innate sense OF Justice.
had retired, that the claimant ought to have
been satisfied. and not asked the whole
bench TO vacate IL occurred TO him That
this idea OF special court ought TO have
been thought Of before. in the very court
that adjudicated this iudgeship question
dudge Burks sat in case OF this sort ;
Judee Staples had brother who was a
Judge and who was interested, and Judge
Christian had near kinsman who was Il
Judge and who was interested. That was
| the time special court should have been
l II hot hat A
been far more decorous and proper for the
claimant to have allowed this matter to be
! originated with the court itself. Further,
lie maintained that the Legislature knew
Of the position Of Judges Lacy and Faun-
tleroy when they elected them; that to
uphold the theory here advanced would
be practically to prevent the promotion ol
members OF the General Assembly; that
the court owed it to itself and to the Le-
gislature to treat the paper-as 1t deserved.
Mr.. Bernard followed Mr.. Blair, urging
the rejection OF the petition and address
| inc himself first TO the matter OF the
seniority of the judges; and here he de-
cared that whatever might be the custom,
the la1p was that the court itself should
elect its president, and that in his absence
the senior Judge should preside. Next be
contended that the service OF Messrs. Lacy
and Fauntleroy on the legislative commit
tee was not a disqualification. That was
not judicial decision, and they may have
changed their OPINION, as had his learned
friend here [Mr. Henryb whose name was
attached to the very report in question.
CORRECTIONS.
Colonel Guy replied very briefly to the
Attorney Generals belttling OF the peti-
tion. and passed on to make some correc-
tions.
The Hon. f. c. Burks retired from the
bench when the case was heard which was
10 decide his own status. But when the