"Sect. XI. Each of the said district courts in term time, "or any judge thereof in vacation, shall, and may have "and exercise the same power of granting injunctions "to stay proceedings on any judgment obtained in any "of the said district courts, as is now had and exercised "by the judge of the high court of chancery in similar

cases, and the said district courts may proceed to the "dissolution or final hearing of 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 Record, Arguments, and Decision, here follow.

At a District Court, held at Dumfries, the twentythird day of May, one thousand seven hundred and and ninety-three-Present, the Honourable Spencer Roane, Esq.

PETER KAMPER, US. MARY HAWKINS.

Upon a motion for an injunction to stay the proceedings on a judgment obtained at the last term held for this district, by Mary Hawkins, against the said Peter Kamper, under an act of assembly, entitled, "an act reducing "into one, the several acts concerning the establishment, "jurisdiction, and power of district courts.'

The court is of opinion, that the said question should be adjourned to the General Court for novelty and difficulty, as to the constitutionality of the said law in this behalf. Whereupon,

At a General Court held at the capitol in the city of Richmond, on Saturday the ninth day of November, in the year of our Lord, one thousand seven hundred and ninety three-Present, Saint George Tucker.

And from thence continued by adjournments until Saturday, November 16, 1793.-Present, St. George Tucker, John Tyler, James Henry, Spencer Roane, and William Nelson, jun. esquires, judges.

The honorable the judges, delivered their respective opinions touching the case aforesaid, in the following

manner:

JUDGE NELSON. This is a motion for an injunction, adjourned from the District Court of Dumfries on the constitutionality of the eleventh section of the district court law,* which gives the district court in term time, or a judge thereof in vacation, the same power of granting injunctions to stay proceedings on any judgment obtain

* Passed in 1792.

ed in a district court, and of proceeding to the dissolution or final hearing of suits commencing by injunction, under the same rules and regulations as are now prescribed to the high court of chancery.

I shall consider the question under two points.

First. Whether, if this clause be contrary to the constitution of this commonwealth, it can be executed.

And, Secondly, Whether it be contrary to the constitution.

I. As to the first point, although it has been decided by the judges of the court of appeals, (whether judicially or not is another question,) that a law contrary to the constitution is void-I beg leave to make a few observations on general principles.

The difference between a free and an arbitrary government I take to be-that in the former limits are assigned to those to whom the administration is committed; but the latter depends on the will of the departments or some of them. Hence the utility of a written constitution.

A Constitution is that by which the powers of government are limited.

It is to the governors, or rather to the departments of government, what a law is to individuals-nay, it is not only a rule of action to the branches of government, but it is that from which their existence flows, and by which the powers, (or portions of the right to govern,) which may have been committed to them, are prescribed—It is their commission-nay, it is their creator.

The calling this instrument the constitution or form of government, shews that the framers intended it to have this effect, and I shall presently endeavour to obviate the objection arising from the want of their appointment in form.

*In the American edition of the Encyclopædia, "Constitution in "matters of policy, signifies the form of government established in 'any country or kingdom.

"Constitution also denotes an ordinance, decision, regulation, or "law made by authority, superior ecclesiastical or civil.”

That the word constitution in the title of the instrument under consideration, is not synonymous with ordinance or law, (as seems to be the opinion of the able author of "Notes on Virginia,") but is used in the former sense, is evident from its being called "the constitution, or form of government, &c."

The present question is whether an act of the legislature contrary to it, be valid?

* This is the paper by which the delegates and representatives of the people, viewing with concern the deplorable situation to which this country must have been reduced unless some regular adequate mode of civil polity had been speedily adopted, did ordain and declare the future form of government to be as there set forth.

This is the paper which divides the government into three distinct departments, with one exception.t

This is the very paper under which there are two branches of legislature now assembled.

This is the very paper under which they are to meet once every year, or oftener.

This is the very paper which gives them their styleof the General Assembly of Virginia.

* See second section of the Constitution..

That justices of the County Courts are eligible to either House of Assembly.

D