Cases of the Judges of the Court of Appeals

The judges of the court of appeals, and of all the superior courts, hold their offices during good behaviour; and cannot be removed, except for •misbehaviour. The judges of the court of chancery, general court, and court of admiralty, could not be required to act as district judges: for the legislature could not increase their duties. Those judges might resign the office of judges of the court of appeals, and still be judges of the courts to which they respectively belonged. The legislature cannot reduce the salaries of the judges which are fixed, while the duties remain the same; and, when public utility requires an increase of duty, there should be an analagous alteration of salary. If an act of assembly, speaking of an already established court, says that the court of that name shall consist of a certain number of judges, it ought not to be interpreted as meaning to remove the existing judges: But if it did so mean, the legislature had no power to do it, as the judges were in, under the constitution. But all the officers of the conxt, not thus protected by the constitution, are displaced, and must he reappointed.

The constitution of the state of Virginia declares, that the two houses of assembly shall by joint ballot, appoint judges of the supreme court of appeals, and general court, judges in chancery, judges of admiralty, secretary, and the attorney general, to be commissioned by the governour, and continue in office during good behaviour.” Art. xiv. Const. Virg. The act of assembly passed. May 1779, for constituting a court of appeals, declares, that "of chancery, general court, and court of admiralty, shall be judges of the court of appeals, of whom the first shall take precedence, and the second be next in rank, and five of them shall be a sufficient number to constitute the court. Every judge before he exercise this office, shall in that court openly give assurance of fidelity to the commonwealth, and take this oath, You shall swear that you will well and truly serve this commonwealth in the office of a judge of the court of appeals, and that you will do equal right to all manner of people, &/c," Ch. Rev. 102. The act of assembly for constituting a high court of chaneery passed at the October session 1777, directs that the court “ shall consist of three judges, to be chosen from time ^ tjm0 t¡-,e j0jnt ballot of both houses of assembly, and commissioned by the governour, to hold their offices so long as they shall respectively demean themselves well therein, any two of whom may hold a court. Every person so commissioned, before he enters upon the duties of his office, shall in open court take and subscribe the oath of fidelity to this commonwealth, and take the following oath of office : You shall swear, that well and truly you will serve this commonwealth in the office of a judge of the high court of chancery, and that you will do equal right to all manner of people, &c.” Ch. Rev. 66. The act of assembly for establishing the general court, declares that it “ shall consist of five judges, to be chosen by joint ballot of both houses of the general assembly, and commissioned by the governour for the time being, to hold their offices so long as they shall respectively demean themselves well therein, any three of them to be a court; and the said judges shall have precedence in court as they stand in nomination on the ballot, and the person first named shall be called chief justice of such court. Every person so commissioned, before he enters on the duties of his office, shall, in open court, take and subscribe the oath of fidelity to the commonwealth, and take the following oath of office, to wit: You shall swear, that well and truly you will serve this commonwealth in the office of a judge of the general court, and that you will do equal, right to all manner of people, &c.” Ch. Rev. 70. The act of assembly for constituting the court of admiralty, passed at the May session 1779, is as follows, “ JBei it enacted by the general assembly, that the court of admiralty, to consist of three judges, any two of whom are declared to be a sufficient number to constitute a court, shall have jurisdiction, &c. Every future judge of this court shall be chosen by joint ballot of both houses of assembly; and before he enters on the duties of his office, besides taking the oath of fidelity, he shall take the following oath, to be administered by the governour in council: You shall swear, that well and truly you will sene this commonwealth, the in the office of a judge of the court of admiralty; that you will do equal right to all manner of people, &c, The taking of which oath, or the certificate thereof, shall be registered in the said court.” The first meeting of the court of appeals, and the manner of qualifying of the judges thereof under the foregoing acts of assembly was as follows s “ Williamsburg, to wit: At the capitol in the said city, on Monday, the 30th day of August, one thousand seven hundred and seventy-nine: In virtue of an act passed at the last session of general assembly, intituled an act constituting the court of appeals, then and there convened Edmund Pendleton and George Wythe, esquires, two of the judges of the high court of chancery, John Blair, esquire, one of the judges of the general court, and Benjamin Waller', Richard Cary and William Roscow Wilson Curle, esquires, judges of the court of admiralty, and thereupon the oath of fidelity, prescribed by an act, intituled an act prescribing the oath of fidelity, and the oaths of certain public officers, together with the oath of office prescribed by the said act constituting the court of appeals to be taken by every judge of the said court, being first administered by the said George Wythe and John Blair, esquires, to the said Edmund Pendleton, esquire, and then by the said Edmund Pendleton, esquire, to the rest of the judges, the court proceeded to the business before them.” At the next court, “ Present George Wythe, esquire, one of the judges of the high court of chancery, John Blair, esquire, chief justice of the general court, Paul Carrington and Peter Lyons, esquires, two of the judges of the same court, and Benjamin Waller, esquire, one of the judges of the court of admiralty, the said Paul Carrington and Peter Lyons having first taken the oath of fidelity to the commonwealth and the oath of office, which were administered to them by the said George Wythe and John Blair, esquires.” The last recited form was the one always afterwards observed, .when any judge took his seat, who had not before qualified as a judge of -the court of appeals.* At the session of the general assembly, October 1784, an act passed for the establishment of courts of assize; which laid off all the counties of the state into'circuits of I assize, for the purpose of trying all issues made up in the general court; and' enacted thatprevious to the holding of the courts of assize, the court of appeals shall allot and regulate among themselves the court or courts of assize, at each of which two of the judges of the said court of appeals shall attend; which two judges, or in case of failure in either through sickness or other cause to attend, the other of them shall have power to try all issues, and inquire of damages by a jury upon all records to be transmitted to them by the clerk of the general court, and therein to determine all questions about the legality of evidence, and other matters' of law which may arise.” 11 Hen. Stat. 424. That act was suspended by an act passed at the assembly held in October 1785. 12 Hen. Stat. 45; and at the October session 1780. 12 Hen. Stat. 267. In January 1788, it was repealed. 12 Hen. Stat. 497. Upon the 2d January, 1788, an act of assembly passed for establishing district courts; by which it was enacted, “ That four judges shall be elected by joint ballot of both houses of assembly, in addition to the present judges of the general court, who shall also be judges of the court of appeals, and it shall be the duty of the judges of the high court of appeals, ter attend the said courts, allotting among themselves the districts they shall respectively attend, in such manner, as that the judges of the high court of chan' \ eery and admiralty shall attend the district courts to be held at Richmond, Petersburg, Brunswick, Suffolk, Northumberland, King & Queen, Williamsburg and Accomack; the judges of the general court shall attend the district courts to be held at Fredericksburg, Dumfries, Winchester, Charlottesville, Staunton, Monongalia, Prince Edward, New London, at Washington and Montgomery alternately, and at the Sweet Springs, any two of whom shall constitute a court.” 12 Hen. Stat. 535. By the same act it was enacted, that “the court of appeals at their session to be.held in April next, or a majority of them shall appoint a clerk to each of the said district courts.” 12 Hen. Stat. 535. That act was to take effect, after the first day of July, 1788; and the four new judges of the general court were elected under it; but did not qualify until late in that year. The constitutionality of a law directing the judges to perform new services, without additional compensation, had been occasionally discussed by statesmen and others from the first passage of the act for establishing courts of assjze; but, as that act was suspended from time to time, and finally repealed, nothing was said, officially, by the judges, respecting it. Upon the passing of the district court law however, the question was more frequently agitated, and different views taken by those who opposed, and by those who favoured, the act. The first contended, that it. was contrary to the constitution to impose new duties to be performed out of the courts to which the judges respectively belonged ; but clearly so, if no additional compensation was made .them for it. That the new duties assigned were greater than those they had ever been bound to perform in their respective courts; and amounted to an actual amotion' from office, as the labour was greater than most of them could discharge, and would exhaust the salaries of those who were able to go through it. That their services, in the court of appeals, formed no precedent; because they were voluntary, and could not have been required, if the judges, with a view to relieve the state from the necessity of sustaining additional burthens in times of difficulty, had not assented to it; and withal, that those services were comparatively light: but these greater than the length of the majority could bear, or the public justly demand. On the other side, it was insisted, that the tenure of office, which was all that the constitution meant to preserve, was not assailed by the assignment of new duties: which might be imposed whenever the legislature thought proper. That it was preposterous to say, that a judge could never be called upon to perform more services than existed at the time of his appointment, as that would go to a refusal to decide,, in any one year, a greater number of causes than he found upon the docket when he first came into the court, although the progress of society might greatly swell the quantity of business from ordinary causes. That the propriety of making compensation for the additional services would be matter of expediency thereafter; but could not be claimed by the judges as a right. That the judges of the three courts had acted as members of the court of appeals, although that court was constituted subsequent to their own appointment. That their services in the court of appeals were not voluntary; but had always been performed as a duty; and that their acquiescence might be considered as a cotemporaneous exposition of the constitution; which formed a precedent not to be resisted. The court of appeals met at the usual time in April 1788; and proceeded to transact business in the manner they had formerly done. They omitted to appoint clerks for the district courts however; and, before their final adjournment, made the following order, and remonstrance: “ On consideration of a late act of assembly, intituled an act establishing district courts, after several conferences and upon mature deliberation, the court do adjudge that clerks of the said courts ought not now to be appointed for reasons contained in a remonstrance to the general assembly, in the words following, to wit: “ To the honourable the speakers and other members of the senate and house of delegates of the commonwealth of Virginia, in general assembly, > “the respectful remonstrance of the court of APPEALS. “ The remonstrants finding themselves called upon by a late act of the general assembly, intituled an act establishing district courts, to proceed at this session to the appointment of clerks to the said courts, that whole act was necessarily brought into their view; in considering which they encountered many difficulties of an ordinary nature, such as, whether their power of appointing now, though directed by the second section, was not controlled by the 116th, declaring that the act should take effect and be in force from and after the first day of July, in the year 1788, and not before 5 whether the district courts have jurisdiction of any suits now depending in the general court of above £ 30 value : whether any, and what provision was made for the trial of criminals who might remain in the public jail, after the session of the general court in June next, or who might be examined and committed prior to the said first day of July: And whether, for want of precision in several other parts of the law, it was in the respective cases to operate from the time of passing, or from the first day of July. (In other instances, particularly in the construction of the late execution law, regularly brought before the court this term, they have to lament the last difficulty, which they found so great, that nothing but the repose of the community, and necessity of having one uniform system in that respect could have induced the court to decide upon it, at least without further consideration.) “But in the progress of their discussion, they found it unavoidable to consider more important questions, viz: Whether the principles of this act do not violate those of the constitution or form of government, which the people in 1776, when the former bands of their society were dissolved, established as the foundation of that government, which they judged necessary for the preservation of their persons and property ? and, if such violation were apparent, whether they had power, and it was their duty to declare that the ^ yigjy f0 ¿¡lf> constitution ? “And here they have again to lament, that there should be occasion to decide those important questions in any case, especially at a time when the minds of the citizens are agitated upon other questions of great and national concern, more so, that the necessity should occur in a case wherein their individual interests are involved, and still more, that a decision one way might suspend, though for a short time, the beneficial effects of a law tending to promote the speedy and easy administration of justice. “ On this view of the subject, the following alternatives presented themselves to the court: Either to decide those questions; Or resign their offices. The latter would have been their choice, if they could have considered the questions as affecting their individual interests only; but viewing them as relating to their office, and finding themselves called by their country to sustain an important post as one of the three pillars on which the great fabric of government was erected, they judged that a resignation would subject them to the reproach of deserting their station, and betraying the sacred interests of society entrusted with them; and, on that ground, found themselves obliged to decide, however their delicacy might be wounded, or whatever temporary inconveniences might ensue, and in that decision to declare, that the constitution and the act are in opposition and cannot exist together; and that the former must control the operation of the latter. If this opinion, declaring the supremacy of the constitution, needed any support, it may be found in the opinion of the legislature themselves, who have, in several instances, considered the constitution as prescribing limits to their powers, as well as to those of the other departments of government. “ In forming their judgment upon both questions, they had recourse to that article in the declaration of rights, that no free government, or the blessing of liberty can be preserved to any people but (among other things) by frequent recurrence to fundamental principles j an article worthy to be written in letters of gold. The propriety and necessity of the independence of the judges is evident in reason and, the nature of their office; since they are to decide between government and the people, as well as between contending citizens; and, if they be dependent on either, corrupt influence may be apprehended, sacrificing the innocent to popular prejudice; and subjecting the poor to oppression and persecution by the rich. And this applies more forcibly, to exclude a dependence on the legislature ; a branch, of whom, in cases of impeachment, is itself a party. “ This principle supposed, the court are led to consider, whether the people have secured, or departed from it, in the constitution, or form of government. In that solemn act, they discover the people distributing the governmental powers into three great branches, legislative, executive and judiciary, in order to preserve that equipoise, which they judged necessary to secure their liberty, declaring that those powers be kept separate and distinct from each other, and that no person shall exercise at the same time an office in more than one of them. The independence of the two former could not be admitted, because in them a long continuance in office might be dangerous to liberty, and therefore they provided for a change, by frequent elections at stated periods; but in the last, from the principle before observed upon, they declared, that the judges should hold their offices during good behaviour. Their independence would have been rendered complete, by fixing the quantum of their salaries, which perhaps would have been done, if the duties of their office had been, at that time, ascertained. But although it was not then done, yet in respect to this, the constitution gives a principle, not to be departed from, declaring that the salaries shall be adequate and fixed, leaving it to the legislature to judge what would be adequate when they should appoint the duties. And when they had so done, they exercised their whole power over the subject, and the salary was thenceforth to be considered as fixed, while the duties should continue the same, and when public . . ,. , , , utility should require an increase or diminution ot duty, there should be an analogous alteration of salary, with this restriction however, that such regulation should not blend the duties of the judges of the general court, court of chancery and court of admiralty, which the constitution seems to require to be exercised by distinct persons; and the legislature appear to have so considered it, in the arrangement of those courts. “ The court of appeals, of whomsoever constituted, must necessarily act upon the subjects referred to all the others; and therefore the forming it, so as to consist of all the judges, is no violation of the constitution; and that mode, assimilated to adjournments of cases before all the judges of England in the exchequer chamber, may have been dictated by necessity. “ The court then proceeded to consider what had been done, by the legislature, in consequence of the constitution. In the October session of 1777, they passed two acts, organizing the general court and court of chancery, giving to the former jurisdiction at common law, in civil cases, as well as criminal; and, to the latter, jurisdiction in all cases in equity. The duties of each were distinctly pointed out, and a salary of £ 500 to each judge was thought, by the legislature, to be an adequate reward for those duties; and this previous to the appointment of any judges. The election of the judges followed, when four of those, at present, in office, were of the number elected; who thinking, as they still think, the salary was adequate to the services, declined other pursuits, and accepted their appointments, under a confidence that the constitution would entitle them to that salary, so long as they should perform the duty in an upright manner. The nominal sum they conceived was to be paid them in specie, or in something equivalent thereto, and they have reason to believe that the legislature so understood it, from laws in force at that period, making it penal to demand an allowance for the difference between specie and paper-money. And though the other judges have been called into duty by subsequent appointments,tiie they may be supposed to stand upon the same ground of original compact. The court of admiralty, indeed, was not permanently constituted, until the year 1779, and the judges then appointed; yet, by being made judges of the court of appeals, they have fever since been put upon the same footing, with their brethren, in point of salary. The various substitutions of paper money and tobacco for specie, which was not to be had, the judges considered as temporary expedients, which, though operating greatly to the diminution of their salaries, were not designed to affect their independence, and therefore they acquiesced, content to share in the public calamities, in hopes of a recurrence to the constitutional principle in better times. And they considered in the same light the act of 1781, stating the salary at £ 300, as dictated by necessity, and not proceeding from design; and therefore did not conceive it to be their official duty to interpose. “ But the act now under consideration presenting a system, which assigns, to the judges of the chancery and admiralty, jurisdiction in common law cases : which so far may be considered as a new office, the labour of which would greatly exceed that of the former : without a correspondent reward; and to the judges of the general court, duties, which, though not changed as to their subjects, are yet more than doubled, without any increase of salary, appeared so evident an attack upon the independency of the judges, that they thought it inconsistent with a conscientious discharge of their duty to pass it over. For vain would be the precautions of the founders of our government to secure liberty, if the legislature, though restrained from changing the tenure of judicial offices, are at liberty to compel a resignation by reducing salaries to a copper, or by making it a part of the official duty to become hewers of wood, and drawers of water" ®r, case of a contrary disposition, they can make salaries exorbitant; or, by lessening the duties, render offices, almost, sinecures: the independence of the iu- - 1 d diciary is, m either case, equally annihilated. “The court, however, willing to hope, that in the present instance, the legislature had no such design; but that inattention, or some other circumstances might occasion the deviation, and that, upon a revision of the subject, this law will be placed upon unexceptionable ground, had only to consider what ought to be their conduct in the mean time. The result of which was, that they ought not to do any thing officially in execution of an act which appeared to be contrary to the spirit of the constitution; and therefore they declined to. appoint the clerks of the district courts, under the said acts. “To obviate a possible objection, that the court, while they are maintaining the independency of the judiciary, are countenancing encroachments of that branch upon the department of others, and assuming a right to control the legislature, it may be observed, that when they decide between an act of the people, and an act of the legislature, they are ivithin the line of their duty, declaring what the law is, and siot making a new law. And ever disposed to maintain harmony with other members of government, so necessary to promote the happiness of society, they most sincerely wish, that the present infraction of the constitution may be remedied by the legislature themselves; and thereby all further uneasiness on the occasion be prevented. But should their wishes be disappointed by the event, they see no other alternative for a decision between the legislature and judiciary, than an appeal to the people, whose servants both are; and- for whose sakes both were created, and who may exercise their original and supreme power, whenever they think proper. To that tribunal, therefore, the court, in that case, commit themselves, conscious of perfect integrity, in their intentions, however they may have been mistaken in their judgment.” “ It is ordered that the president of the court do deliver the said remonstrance to his excellency the governour, with a request that he will be pleased to lay the same before the ^ , ,, . . „ general assembly, at their first session. In consequence of the foregoing remonstrance, an act of assembly passed on the 22d December, 1788, for establishing district courts, and for regulating the general court; which enacted that “Three judges shall be elected by joint ballot of both houses of assembly, in addition to the present nine judges of the general court. And it shall be the duty of the judges of the general court to attend the district courts, allotting among themselves half yearly, the districts they shall respectively attend at the succeeding terms thereof: Two to each court, who shall be judges of the court to which they shall be allotted, &c.” 12 Hen. Stat. 733. And in another section, it enacts, that “ Those cases in which the court of admiralty hath jurisdiction by law, and which are not taken away by the constitution of the United States, are hereby transferred to the district courts, to be proceeded on as the law requires in the said court of admiralty. 12 Hen. Stat. 736. Under this law, the three judges of the court of admiralty, were elected judges of the general court. On the same 22d December, 1788, an act of assembly passed for amending the act, intituled an act constituting the court of appeals, which enacts, “ That the court of appeals shall consist of five judges, who shall be chosen from time to time, by the joint ballot of both houses of assernbly, shall be commissioned by the governour, and shall, respectively, continue in office during good behaviour.” 12 Hen. Stat. 764. But it made no provision relative to the existing judges of the court of appeals. It directed, however, that “ nothing in this act contained shall be construed in any manner to affect any suits now depending before the said court, or any decree, judgment, sentence or order hitherto given therein; but the same shall remain as if this act had never been made : Provided, always, That the suits now depending before the said court, shall be finally decided by the court of appeals, as it is now constituted by law. For which purpose they shall hold a term at the capitol in the city'of Rich-mood, on the 2d day of March next, and shall sit until the same shall be concluded. If, however, the court of appeals gpap jt advjSeable from any reason, which may prevent an immediate decision, to adjourn to another day, it shall be lawful for them so to do. But the adjournment of the said court, for the purpose of finishing the old business, shall not affect or retard the jurisdiction of the said court, as it shall stand under this act. The judges of the court of appeals, appointed under this act, may take the oath of fidelity and of office, before the executive, or any justice of the peace, a certificate whereof shall be recorded in the said court.” On the 24th December, 1788, two of the judges of the court of chancery, and three of the judges of the general court were elected judges of the court'of appeals under the last mentioned law; and were commissioned by the governour on the 31st December, 1788; but did not qualify as such, until after the month of March in the following year. On the same 22d December, 17S8, another act of assembly passed, for amending the several acts of the general assembly, concerning the high court of chancery: which enacts, “ That as soon as a sufficient number of vacancies shall take place, to permit the reduction of the present number of judges in the high court of chancery, the said court shall consist of one, who shall either be one of the present judges, or shall be chosen from time to time, by the joint ballot of both houses of assembly, shall be commissioned by the governour, and shall continue in office during good behaviour.” 12 Hen. Stat. 766. Neither of those laws increase the salaries of the judges. The three judges of the high court of chancery, four of the judges of the general court, and two of the judges of the court of admiralty, met in the capitol in the city of Richmond, as a court of appeals, in March 1789, under the old law; and made the following order, which they all signed : “ The court, considering that the right of several of the judges to sit, is at least doubtful, on account of a resignation by one of his seat in the court of chancery, of the qualification of another, under his commission as a judge of the new court of appeals, of the declared intention of others to accept their new appointment, and of the want of a fication by the last appointed judges of the general court under that commission, are of opinion, that it is adviseable to decline proceeding on the docket. But before the close of their session, they conceive (however painful the repetition) that they are again under an indispensable obligation to advert to an act of assembly which they are constrained to consider as incompatible with their independence. The act intended is an act of the last session for amending the act intituled an act constituting the court of appeals. The direct operation of this law is the amotion from office of the whole bench of judges of appeals, and the appointment of new judges to the same court. But although the office of a judge of the former court of appeals was, in the mode of election, as established by the act of 1779, accessory and appendant to an office in one of the superior courts j yet, a judge of this supreme court, properly invested, was by the constitution intended to be equally independent, and equally secure in the enjoyment of that office, as of the office of judge of one of the superior courts to which it was annexed, and therefore could not be constitutionally deprived of it. It appears to the court probable,, that the general assembly were so much engrossed by the idea of the utility of their great object, the establishment of district courts, as either to have overlooked this difficulty, which stood in their way, or, if they perceived it, to have counted on the acquiescence of those whose rights were thus to be invaded; and in this expectation (if it was indeed intended) the legislature were not deceived: This court is truly willing to make any voluntary sacrifice for the attainment of so desirable an object as the establishment of courts, which by the expeditious administration of justice, will not only give that relief to suffering creditors, which has already been too long withheld from them, but contribute much to the increase of industry, and improvement of the morals of the people. Yet whatever concessions this court may be willing to make, they think it their duty to guard against en- . croachment. “And in conformity to these sentiments, after solemnly protesting against every invasion of the judiciary establishments, or any deprivation of office in that line in any other mode than as pointed out in the constitution, they do hereby of their mere free will, in order to make way for the operation of the salutary system lately adopted, resign their' appointments.as judges of the court of appeals; and as they do not hold any separate commission for that office, which might be returned, do order the same to be recorded.” On the 20th of June, 1789, the five judges of the court of appeals, appointed under the act of the 22d December, 1788, met according to law, and proceeded to business. In October Í792, upon the revisal of the laws, an act of assembly passed, for reducing into one act the several acts concerning the court of appeals: which enacts, “ that the court of appeals shall consist of five judges, to be chosen and commissioned in the manner directed by the constitution of this commonwealth. Any three of the said judges shall constitute a court, &c. Every judge, before he exercises his office, shall in open court give assurance of fidelity to the commonwealth, and take this oath, ‘ You shall swear that you will well and truly serve the commonwealth in the office of a fudge of the court of appeals, and that you will do equal right to all manner of people, &c.’” 13 Hen. Stat. 405. No new judges were chosen under this act; but the judges who were in office under the act of the 22d December, 1788, met in April 1793; and held a conference, whether they should proceed to business. On the next day, Pendleton, President, informed the bar, that the judges had conferred together, and had determined to proceed to business; for, as they held their offices under the constitution, the new law could not have taken them away, had it even been intended; but they were satistied, that it was not the intention of the legislature to deprive them. However, that the other officers of the who were not in under the constitution, must be reappointed.