powers, their duties, and the regularity of their appointments, and therefore, they may be considered, in some sense, as judges in their own cause.- -But be the subject as delicate as can be supposed possible, and as important as any which can ever come before a court, it is now before us, and I embrace the opportunity, now offered me for the first time, of publicly declaring my opinion.

The importance of the subject requires a particular attention, and thorough examination. We will then have recourse to the revolution and some of the history.

In the year 1776, the people of this country chose deputies, to meet in general convention, to consult of, and take care for, their most valuable interests. These deputies seem to have been complete representatives of the people, and vested with the most unlimited authority. Accordingly, having taken a careful review of the state of their country, they found a number of instances of misrule in the then existing government, and that our prince, by abandoning the helm of government, and declaring the people to be out of his allegiance and protection, had produced a total dissolution of the social band.

When this was found to be our unhappy situation, our deputies proceeded, (as of right they might), to prepare that form of government for us they judged best.

Accordingly, a plan of government was agreed upon, promulged, and accepted by the people, which has been uniformly acquiesced under from that day to this time. But previous to the promulging the plan of government, these deputies declared that certain rights were inherent in the people, which the public servants who might be intrusted with the execution of this government, were never to be permitted to infringe;-for example, the legislative branch were declared to be restrained from interfering with the right of trial by jury in criminal cases; from meddling with the rights of conscience, in matters of religion; and each of the three branches into which the government was to be divided was declared incompetent to any of the duties of either of the other two.

The judiciary, from the nature of the office, and the mode of their appointment, could never be designed to determine upon the equity, necessity, or usefulness of a law; that would amount to an express interfering with the legislative branch, in the clause where it is expressly forbidden for any one branch to interfere with the duties of the other. The reason is obvious, not being chosen immediately by the people, nor being accountable to them, in the first instance, they do not, and ought not, to represent the people in framing or repealing any law.

There is a proposition which I take to be universally

true in our constitution, which to gentlemen whose ideas of parliament, and parliamentary powers, were formed under the former government, may not be always obvious; it is this-We were taught that Parliament was omnipotent, and their powers beyond control; now this proposition, in our constitution, is limited, and certain rights are reserved as before observed;-if this were always kept in mind, it might free the mind from a good deal of embarrassment in discussing several questions where the duty, and the power of the legislature is considered.

Our deputies, in this famous convention, after having reserved many fundamental rights to the people, which were declared not to be subject to legislative control, did more; they pointed out a certain and permanent mode of appointing the officers who were to be intrusted with the execution of the government. Though the choice of the officers was intrusted to the wisdom of the legislature, yet the manner of conducting this choice was fixed; hereby declaring in the most solemn manner, the public will and mind of the people to be, that the laws when made, should be executed by officers chosen and appointed, as therein is directed, and not otherwise; whereas under the former government, the legislature seemed to have had no bounds to their authority but the negative of the crown, and the public officers were appointed and displaced at the pleasure of the governing powers which then were.

I come now to the particular case before the court. Kamper applied to the district court of Dumfries, for an injunction to a judgment obtained at law in that court by Hawkins, under the law which directs the district judges to hear and determine all suits commencing by injunction, under the same rules and regulations as are now prescribed by law, for conducting similar suits in the high court of chancery.

The permanent will of the people, expressed in the constitution, is that the legislature, by joint ballot of both houses, shall appoint judges of the supreme court of appeals and general court, judges in chancery, &c. to be commissioned by the governor, and to hold their offices during good behaviour.

It is alleged by some of my brethren, that the legislature are not warranted in appointing the same men to be judges both at common law and in chancery. The words of the plan of government are," they shall appoint judges "of the high court of appeals and general court, judges " in chancery, &c." These words, judges in chancery, are supposed to design different persons from the judges of the general court, and an argument to inforce this opinion. is drawn from sect. 16 and 17, where it is provided, that any judge of the general court, offending against the state, may be prosecuted in the high court of appeals; but a

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chancery judge offending must be prosecuted in the general court; therefore it is alleged, a common law judge cannot be a chancery, nor a chancery a common law judge in our government.

This question has heretofore been alleged as one of the reasons of the high court of appeals for declining to execute a very important law of the land;-without saying any thing about the propriety or impropriety of that business, it is sufficient for my present purpose to observe, that the question did not then come before the court in a judicial manner,—it was taken up as a general proposition, and when published, contained an appeal to the people; this looked like a dissolution of the government,— therefore I cannot view it as an adjudged case, to be considered as a binding precedent.

It is much to be wished that the question had been then decided, by calling a convention of the people. But unfortunately the legislature neither yielded the point nor insisted, but adopted an expedient. They new-modelled the courts.-The question then went to sleep, but the legislature preserved the principle; they appointed judges of the high court of appeals, with unlimited jurisdiction, both in law and equity; they appointed judges of the general court, and a judge in chancery.