I cannot depart from those motives which I have both in public and private life made my standard-I concur therefore most heartily with my brothers, who have gone before me, in the last two points, that the law is unconstitutional and ought not to be executed; the injunction therefore must be over ruled-and this opinion I form not from a view of the memorials, nor from writers who knew not the blessings of free government, but as they were seen and felt through the prospect of future times, but from honest reason, common sense, and the great letter of a Free Constitution!

JUDGE TUCKER. This question was an adjourned case from the district court of Dumfries, and arose upon the act of 1792, for reducing into one the several acts concerning the establishment, jurisdiction, and powers of the district courts.

Sect. third of that act declares it to be the duty of two of the judges of the general court to attend each district court at their respective terms; and the said two judges shall constitute a court for such district, &c.

Sect. eleventh provides "that 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 judg

"ment, 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."

Upon this clause, a motion was made in Dumfries district court, May 23, 1791, for an injunction to stay proceedings on a judgment obtained in that court, and was adjourned hither for novelty and difficulty.

The question which it is now incumbent on this court to decide, seems to me to be shortly this-whether a judge of the general court of this commonwealth, can constitutionally exercise the functions of a judge in chancery? this calls upon us for a recurrence to fundamental principles, a duty which our bill of rights* expressly imposes upon all the servants of the commonwealth. And this renders it necessary not only to investigate the principles upon which our government is founded, but the authority by which it was established; inasmuch as there are doubts in the breasts of many, whether our

* Bill of Rights, Art. 15.

constitution itself is any more than an act of the ordinary legislature, revocable, or subject to alteration by them, in any manner, and at any time.

In considering this question, I shall first state my own impressions, arising from the text of the constitution, and the spirit of our government, only unsupported by any former judicial opinions on the subject—and, secondly, as founded on the authority and decision of the court of appeals.

I. In stating my own impressions, I shall consider:

1st, Whether the constitution, or form of government of this commonwealth, be an act of the ordinary legislature, and, consequently revocable, or subject to alteration by the same authority; or something paramount thereto?

2dly, Whether, according to that constitution, the functions of a judge of the general court, and a judge in chancery, were intended to be distinct; or might be blended in the same person?

1st, Whether the constitution be an act of the ordinary legislature; or something paramount thereto?

It will be remembered by all those who are conversant

with the history of the rise and progress of the late glorious revolution, that the measures which led to the final consummation of that important event, although they originated, in most instances, with the legal and constitutional assemblies of the different colonies, made but a small progress in that channel, particularly in this state. The dissolution of the constitutional assemblies, by the governors appointed by the crown, obliged the people to resort to other methods of deliberating for the common good. Hence the first introduction of conventions: bodies neither authorized by, or known to the then constitutional government; bodies, on the contrary, which the constitutional officers of the then existing governments considered as illegal, and treated as such. Nevertheless, they met, deliberated, and resolved for the common good. They were the people, assembled by their deputies; not a legal, or constitutional assembly, or part of the government as then organized.-Hence they were not, nor could be deemed the ordinary legislature; that body being composed of the governor, council, and burgesses, who sat in several distinct chambers and characters: while the other was composed of a single body, having neither the character of governor, council, or legitimate representative among them: they were, in effect, the people themselves, assembled by their delegates, to whom the care of the commonwealth was especially, as well as unboundedly confided.

Το prove this distinction still farther. The power of convening the legal assemblies, or the ordinary constitutional legislature, resided solely in the executive: they could neither be chosen without writs issued by its authority, nor assemble when chosen, but under the same authority. The conventions, on the contrary, were ch♦sen, and assembled, either in pursuance of recommendations from congress, or from their own bodies, or by the discretion, and common consent of the people. They were held, even whilst a legal assembly existed. Witness the convention, held in Richmond in March, 1775: after which period, the legal, or constitutional assembly, was convened in Williamsburgh, by the governor, lord Dunmore; and continued sitting until finally dissolved by himin June or July, 1775.-No other legal assembly was ever chosen, or convened under the British government.

The convention then was not the ordinary legislature of Virginia. It was the body of the people, impelled to assemble from a sense of common danger, consulting for the common good, and acting in all things for the common safety. It could not be the legitimate legislature, under the then established government, since that body could only be chosen under the permission, and assembled under the authority of the crown of Great Britain.