I. Bill for Establishing a Court of Appeals
For establishing a court of Appeals for finally determining all suits and controversies, be it enacted by the General assembly that at such place as shall be appointed by act of General assembly there shall be holden a court of Appeals, <to consist of the Judges of the High court of Chancery, the Judges of the General court, and the Judges of the court of Admiralty, any nine of them to be a court, to have precedence in the said court according to seniority.>1
Every such judge before he enters upon the duties of his office in the said court shall in open court take and subscribe the oath of fidelity to the Commonwealth, and take the following oath of office, to wit, ‘You shall swear that you will well and truly serve this Commonwealth in the office of a judge of the court of Appeals, and that you will do equal right to all manner of people, great and small, high and low, rich and poor, without respect of persons: you shall not take by yourself or by any other any gift, fee, or reward of gold, silver or any other thing directly or indirectly of any person or persons great or small for any matter done or to be done by virtue of your office, except such fees or salary as shall be by law appointed: you shall not maintain by yourself or any other, privily or openly, any plea or quarrel, depending in the courts of this Commonwealth: you shall not delay any person of right for the letters or request of any person, nor for any other cause; and if any letter or request come to you contrary to the law, you shall nothing do for such letter or request, but you shall proceed to do the law, any such letter or request notwithstanding: and finally in all things belonging to your said office, during your continuance therein, you shall faithfully justly and truly, according to the best of your skill and judgment, do equal and impartial justice without fraud, favor, affection or partiality.’2
There shall be two sessions of the said court in every year, to wit, one to begin on the 29th. day of March if not Sunday and then on the next day, the other to begin on the 29th. day of August if not Sunday, and then on the next day, to continue each of them six days, Sunday excluded, unless the business depending before them shall be finished in less time; in which case the Judges may adjourn to the next succeeding court.
The said court shall have power to hear and finally determine all suits and controversies whatsoever which shall be brought before them by appeal from the High court of chancery, the General court, or Court of Admiralty, or by writ of error sued out to any decree, judgment, or sentence of either of the said courts: or which shall be adjourned thither from either of the said courts on account of difficulty: but no suit whatsoever shall be originally commenced in the said court of Appeals.3 If the said court shall at any time be equally divided in opinion on any question coming before them by appeal, the decree, judgment or sentence of the court below on such question shall stand confirmed.
Provided that no appeal shall be allowed to the said court, or writ of error sued thereout, unless the matter in dispute, exclusive of costs, shall be of the value of fifty pounds, or that some Franchise be in question: and that upon all such appeals or writs of error, the party prosecuting the same shall give bond and security in the same manner, and shall be liable to the like damages upon the affirmance of the decree, judgment, or sentence, as is provided and directed upon Appeals to, or writs of error sued out of the General court.
The said court of Appeals shall have power to appoint a tipstaff and Cryer, and also a clerk, who shall issue writs of error, upon bond and security given to him, in all cases where the same are hereby allowed to be issued, and shall receive and carefully preserve transcripts of the records upon all such writs, and on Appeals, which shall be transmitted to him by the clerks of the High court of Chancery, the General court and court of Admiralty respectively, entering the names of the parties in a docket in the order he shall receive them, that the suits may be heard in a regular course, without preference to suitors, unless the court for good cause to them shewn, shall order any cause to be heard out of it’s turn: the said clerk shall also attend the court during their several sittings, and make due entries of their proceedings; and shall certify their affirmance or reversal of the decree judgment or sentence in each case, with the costs of the party prevailing, to the court where the said decree, judgment or sentence was given; which court shall enter up the same, and execution shall issue thereupon as well for the costs expended in the court of appeals, as the other matters recovered by the decree, judgment or sentence.
No appeal shall be allowed to the said court or writ of error issued until a final judgment be given in the court from whence the appeal is, or to which the writ of error is directed.
Previous to the hearing of each cause in the said court, a clear and concise state of the case of each party, with the points intended to be insisted on, shall be drawn up and signed by the party’s counsel and printed copies thereof delivered to each of the Judges for their perusal and consideration, the expence whereof shall be taxed in the bill of costs.4
Dft (DLC). Docketed by TJ: “A Bill for establishing a Court of Appeals.” Also docketed in the hand of John Tazewell: “1776 Nov. 25. Read the first Time. 27. Read 2d. time & committed to Com: of whole. Decr. 9th. The above was put off til next session.” Just below this TJ wrote: “31.E.3.c.12” and “27.El. c.8.”
On 30 Oct. 1777 TJ was appointed to a committee to bring in a Bill on this subject, but no further action was taken during this session. On 4 Dec. 1778 the matter was taken up again; on 8 Dec. the Bill was introduced; on 12 Dec. it was passed as amended by the House; and on 15 Dec. 1778 it was agreed to by the Senate (JHD description begins Journal of the House of Delegates of the Commonwealth of Virginia (cited by session and date of publication) description ends , Oct. 1777, 1827 edn., p. 7; Oct. 1778, p. 99, 102, 106, 109, 111, 113).
1. The part within angle brackets was struck out by TJ and the following interlined: “which in causes &c. see other paper.” The other paper referred to is a draft of an amendment in TJ’s hand reading: “pa. 1. line 4. leave out ‘to consist &c.’ to the end of the clause & insert’ which in causes removed after decision from the High court of Chancery shall consist of the Judges of the General court and court of Admiralty; in those from the General court shall consist of the Judges of the High-court of Chancery and court of Admiralty; in those from the court of Admiralty shall consist of the Judges of the High-court of Chancery and General court; and in those adjourned into the said court from either of the others before decision on account of difficulty, shall consist of the judges of all the said courts: who shall have precedence in the said court according to seniority. Three fourths of the members who are to be of the said court in any case shall be sufficient to proceed to business. The judges also of that court from which the cause is removed after decision, shall attend in their places at the hearing thereof and shall deliver the reasons of their judgments.’” The law as enacted made several modifications in this amendment: causes appealed after decision from Chancery were to be tried by judges of the General Court and three assistant judges chosen by joint ballot of both houses of the legislature; those from the General Court to be tried by judges of the High Court of Chancery and the assistant judges; those from Admiralty and those removed before decision from Chancery and the General Court to be tried by all of the judges, those of Chancery to have first precedence and those of the General Court next (Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends IX, 522).
2. This oath is taken, with appropriate omissions of references to the king and the royal authority, almost literally from the oath administered to judges of the General Court in its common law jurisdiction prior to the Revolution (see Act for Establishing the General Court, 1748; Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends V, 468).
3. At this point there is another amendment in TJ’s hand, on a separate slip of paper: “pa. 2. at end of 2d. clause add ‘nor shall any judgment of the General court be reversed therein unless the Chancellors sitting in the cause <be unanimous in>concur in the opinion for reversal, with so many others of the judges as shall make a majority of the said court: but where such concurrence is wanting and in all other cases where the said court shall be equally divided in opinion the former judgment decree or sentence shall stand confirmed.’” TJ later struck out this amendment and interlined instead the sentence which follows in the text. In this clause the denial of original jurisdiction to the Court of Appeals was omitted in the Act as adopted (Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends IX, 523–4).
4. At this point TJ added: “Any person who had &c. see another paper.” The other paper is missing, but the Act as adopted includes a final paragraph providing that any person who had entered an appeal from the General Court to the King’s Privy Council (the judiciary committee of which was the court of last resort for appeals from the colonies) and had not had such an appeal affirmed, reversed, or dismissed, could have the appeal transferred to the Court of Appeals (Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends IX, 525). This and the two amendments noted above (notes 1 and 3) were in all probability made in 1776, and all three were probably made by TJ. If so, there appear to have been no substantial modifications of the Bill as he wrote it originally.