calamities, in hopes of a recurrence to the constitutional principle in better times. And they considered in the same light the act of one thousand seven hundred and eighty-one, stating the salary at three hundred pounds, 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 precaution 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, or if in case of a contrary disposition, they can make salaries exorbitant, or by lessening the duties render offices almost sine

'cures; the independency of the judiciary is in 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 act.

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 departments 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 within the line of their duty, declaring what the law is, and not making a new law. And ever disposed to maintain harmony with the other members of government, so necessary to promote the happiness of society, the court 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 dis

appointed 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 whensoever 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 Governor, with a request that he will be pleased to lay the same before the General Assembly at their first session. EDMUND PENDLETON.

(Signed)

Subsequent to this Remonstrance, the whole of the judges resigned, and afterwards re-qualified, under an act for amending the act entitled, "An act constituting the court of appeals," passed the 22d of December, 1788.

The Commonwealth against Christian Kearns.

THE

HE prisoner was indicted at the district court of Winchester, in April, 1793. The indictment consisted of two counts. The first count charged that he did feloniously forge, and counterfeit, and feloniously did aid and assist in forging and counterfeiting, a certain certificate, purporting to be a certificate issued February 8, 1782, by Bowling Starke, and John Boush, for the payment of money, (which said Bowling Starke and John Boush, were then auditors of public accounts authorized to issue such certificates) for and on behalf of the said commonwealth, to a certain Thomas Scott, and to entitle him to claim from the commonwealth 50%. specie in part for two years pay and subsistence on account as a captain in the Virginia line on continental establishment, payable 1st January, 1785, with six per cent. interest, agreeably tolan act of assembly, passed November 1781, and to be given under the hands of the said Bowling Starke and John Boush, on the said 8th February, 1782, and to be subscribed by the said Bowling Starke and John Boush, with their names: it then sets forth the certificate in hæc verba: with intention to defraud and impoverish the commonwealth, contra form: stat: &c.

The second count is as follows: "And the jurors "aforesaid, upon their oath aforesaid, do further pre"sent, that the said Christian Kearns afterwards, viz.

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on the said 13th November, 1792, with force and "arms, at the said parish and county of Berkeley in the "said district, and within the jurisdiction of this court, "feloniously did transfer a certain other false, forged, "and counterfeited certificate, purporting to be a certi"ficate issued on the 8th day of February, 1782, by Bowling Starke and John Boush for the payment of money "(they the said Bowling Starke and John Boush, then, "to wit, on the day and year last mentioned, being, and "long before having been, auditors of public accounts "for the said commonwealth, and authorized and direct"ed by the legislature of the said commonwealth, to set"tle the claims of certain officers and soldiers, and to "issue such a certificate or certificates, for and on behalf "of the said commonwealth) to a certain Thomas Scott, "and purporting that the said Thomas Scott is entitled "to claim from the said commonwealth the sum of 50%.

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specie, in part for two years pay and subsistence on ac"count as a captain of infantry in the Virginia line and " continental establishment, payable the 1st day of Janu66 ary, in the year 1785, with an interest thereon, at the "rate of six per cent. per annum, agreeable to an act of "the general assembly, passed in the November session, "in the year of our Lord 1781, and to be given under