First Case of the Judges , 4 Va. 1 ( 1779 )

By the 14th section of the constitution, the two houses of the general assembly were to appoint, by joint ballot, judges of the supreme court of appeals, and general court, judges in chancery, and judges of admiralty, who were to hold their offices during good behaviour. Hen. Stat. vol. 9, p. 117.

An act of October session 1776, established a court of admiralty; to consist of three judges, to be chosen by joint ballot of both houses; and to hold their offices during good behaviour. Hen. Stat. vol. 9, p. 202.

*The high Court of chance^ was established by an act of October session 1777, to consist, likewise, of three judges, to be chosen by joint ballot of both houses; and to hold their offices during good behav-iour. Hen. Stat. vol. 9, p. 389.

By an act of the same session of October 1777, the general court was established, to consist of five judges, to be chosen by joint ballot of both houses; and to hold their offices during good behaviour. Hen. Stat. vol. 9, p. 401.

In May 1779, an act, intituled, ‘ ‘an act constituting the court of admiralty,” passed, by which the court was to consist of three judges; those then in office were confirmed ; and every future judge was to be chosen by joint ballot of both houses; and the judges to hold their offices during good behavior. Hen. Stat. vol. 10, p. 98.

This was considered as an amendatory act only.

By an act of the same session of May 1779, the court of appeals was established, to consist of the judges of the high court of chancery, general court, and court of admiralty ; and five to be a sufficient number to constitute a court. Hen. Stat. vol. 10, p. 89.

This act did not direct that the judges should be chosen by joint ballot, and commissioned and sworn by the executive, as was prescribed with respect to the judges of all the other courts.

Under the last mentioned act, several of the judges met, at the capitol in the city of Williamsburg, in order to qualify as judges of the court of appeals; but produced no commissions; for none were directed by the act to be issued; and as they had qualified under the commissions in the courts to which they respectively belonged, it was not thought necessary to produce them now, as this was a legislative court only, and the judges, in construction of law, knew each other. They therefore qualified without the intervention or presence of the executive ; and the following was the entry made in the order book.

*“ Williamsburg, to wit. — At the capitol in the said city, on Monday the 30th 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 Curie, 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 in 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.”

Whereupon, John Beckly was appointed clerk; Mathew Moody, cryer; and John Eenton, tipstaff; who respectively qualified; and then the court adjourned to the 16th of December, following.

December 16th, 1779. Mr. Wythe, one of the chancellors, Mr. Blair, who had become chief justice of the general court, and Mr. Waller, chief judge of the admiralty, were the only judges present, who had already qualified as judges of the court of appeals: But judges Carrington and Eyons of the general court appearing, they without producing any commissions, were sworn into office by chancellor Wythe and chief justice Blair; and thereupon the court met, and proceeded to business.

On the next day Robert Carter Nicholas, one of the judges of the court of chancery, qualified (without producing any commission) in open court; but the oaths were administered to him by judges Lyons and Cary.

*In March 1780, Bartholomew Dan-dridge one of the judges of the general court qualified (without producing any commission) in open court; but it is not said, in the order book, by whom the oaths were administered-