"ment and the people, as well as between contending "citizens; and if they be dependent on either, corrupt "influence may be apprehended.

"4. That this applies more forcibly to exclude a de"pendence on the legislature, a branch of whom, in cases "of impeachment, is itself a party.

"5. To obviate a possible objection that the court, "while they are maintaining the independence of the ju"diciary, are countenancing encroachments of that branch 66 upon the departments of others, and assuming a right 66 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.

"6. That although the duties of their office were not "ascertained at the time of establishing the constitution, "yet in respect thereto, the constitution gives a principle, "namely, that no future regulation should blend the "duties of the judges of the general court, court of chan

เ

cery, and court of admiralty, which the constitution "seems to require to be exercised by distinct persons.'

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"7. That the assigning to the judges of chancery and admiralty jurisdiction in common law cases, may be "considered as a new office."

These declarations, according to my weak apprehensions, comprehend the present question in the fullest extent. I should therefore be of opinion, upon the ground of this authority, as well as upon the conviction of my own mind, independent thereof, which, unless so fortified, I might have mistrusted, that we ought to certify to the district court of Dumfries "That in the opinion of this court, a judge of the general court cannot constitution"ally exercise the functions of a judge in chancery." But the judges who have already delivered their opinions, although some of them appear to dissent from me upon this point, having unanimously concurred in another, viz. That the functions of a judge in chancery can only be exercised by those who may be constituted judges in chancery, in the manner prescribed by the constitution; I shall concur in their unanimous judgment, without offering any reasons on a subject which has been so fully and satisfactorily discussed by them.

When the court unanimously agreed, and the certificate was in these words:

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"Ordered, that it be certified to the said district court '(Dumfries,) as the opinion of this court, "that the mo"tion of the plaintiff, praying an injunction, to stay the "proceedings on a judgment obtained against him in the "said district court by the defendant, ought to be over

N

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 2d 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; whether the district courts have jurisdiction of any suits now depending in the general court, of above thirty pounds 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 the necessity of having one uniform system in that respect, could have induced the court to decide upon it at last 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 act must yield to the constitution.

And here they have again to lament, that there should