93. A Bill Constituting the Court of Appeals
Be it enacted by the General Assembly, that a Court of Appeals, for hearing and determining suits which ought to be instituted there, and for finally deciding those which are herein after referred to that tribunal, shall be holden twice in every year, namely, on the twenty ninth, or, when that shall happen to be Sunday, on the thirtieth, day of March and August, and shall sit, in the whole, six juridical days, successively, each time, unless the business depending before them be sooner dispatched, at the capitol, in Williamsburg,1 or at such other place as shall be appointed by the General Assembly, or, in their recess, by the Governor, with advice of the Privy Council, in any such emergency as will make the adjournment of any other court, by his writ lawful. The Judges of the High Court of Chancery, General Court, and Court of Admiralty, shall be Judges of the Court of Appeals, of whom the first shall take precedence, and the second be next, in rank and of them2 shall be a sufficient number to constitute the court. Every Judge, before he exercise this office, shall, in that court, openly give assurance of fidelity to the commonwealth, and take this oath: “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, favour, or affection.” This court shall have jurisdiction, not only in suits originating there, and adjourned thither for trials by virtue of any statute, which trials shall be by juries, according to the course of law; but also in such as shall be brought before them by appeals and writs of error, to reverse decrees of the High Court of Chancery, judgments of the General Court, and sentences of the Court of Admiralty, after those decisions shall be final there, if the matter in controversy be equal in value, exclusive of costs, to fifty pounds, or be a freehold, or franchise; and also in such cases as shall be removed before them by adjournment from the other courts before mentioned, when questions in their opinion, new and difficult occur; and moreover in such, wherein appeals to reverse decrees and judgments of the former General Court, and sentences of the Court of Vice-Admiralty, as had not been determined, the one by the King of Great-Britain, in his Privy-Council, the other by the High Court of Admiralty of Great-Britain, before the fifteenth day of April, one thousand seven hundred and seventy six. The court shall appoint a clerk, tipstaff, and crier, the first removable for misbehaviour, the two others at pleasure, and shall be attended by the sheriff of the county in which they sit, as their officer. The party desiring to prosecute such appeal, or writ of error, shall proceed in like manner, and shall be liable to like damages, if the decree, judgment, or sentence, be affirmed, and the said clerk shall issue the like process, for summoning the adverse party, removing the records, suspending execution, and for every other requisite purpose, making those alterations in the form which are necessary to adapt it to the case, as are prescribed and ascertained in case of an appeal or writ of error to reverse the decree, sentence, or judgment, of a county, city, or borough court, and such prosecution shall be commenced within the time limited in the case last mentioned, unless it be such appeal to the said King, or High Court of Admiralty, in which instance the prosecution shall be commenced within twelve months after the first session of the said Court of Appeals shall be ended. The said clerk shall carefully preserve the transcripts of records certified to his court, with the bonds for prosecution and all papers relative to them, and other suits depending therein, docketing them in the order he shall receive them, that they may be heard in the same course, unless the court, for good cause to them shewn, direct any to be heard out of its turn; and shall faithfully record their proceedings and decisions, and certify such as shall be given upon appeals, writs of error, and matters removed by adjournment to the proper courts. A clear and concise state of the case of each party in such appeal, writ of error, or controversy adjourned by reason of novelty and difficulty, with the points intended to be insisted upon, signed by his counsel, and printed, the expence whereof shall be taxed in the bill of costs, shall be delivered to every Judge time enough before the hearing, for his consideration; but the court, if this be neglected, may, nevertheless, hear and determine the matter, and may take into their consideration any thing apparent in the manuscript record, although it be omitted in such printed case; and may give such decree, judgment, or sentence, if it be not affirmed or reversed in the whole, as the court, whose error is sought to be corrected, ought to have given, affirming in those cases where the voices on both sides shall be equal, with an allowance of the costs of appeal to the party prevailing, to be certified, as well as their opinion upon any adjourned question to the court, from which the matter was removed, who shall enter it as their own, and award execution thereupon accordingly.3
Report description begins Report of the Committee of Revisors Appointed by the General Assembly of Virginia in MDCCLXXVI, Richmond, 1784 description ends , p. 64–5. Text of Act as adopted in 1779 is in Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends x, 89–92. This Bill was prepared by Wythe; see Document iv, Part 5 in the present series.
See TJ’s Bill for Establishing a Court of Appeals, under date of 25 Nov. to 4 Dec. 1776; also, the Act as adopted at the Oct. 1778 session, Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends ix, 522–5. Bill No. 93 was brought in separately on 10 June 1779, amended and passed by the House 25 June, and approved by the Senate the next day (JHD description begins Journal of the House of Delegates of the Commonwealth of Virginia (cited by session and date of publication) description ends , May 1779, 1827 edn., p. 41, 42, 66, 68; Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends x, 89–92). Despite its adoption in 1779, the Bill was again presented by Madison 31 Oct. 1785, was postponed to Oct. 1786, and no further action was taken (same, Oct. 1785, 1828 edn., p. 12–15, 92; same, Oct. 1786, p. 16–17). At the Oct. 1792 session an Act was passed “for reducing into one act, the several acts concerning 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 xiii, 405–11).
1. At this same session, May 1779, the General Assembly authorized removal of the capitol from Williamsburg to Richmond.
2. Act reads: “five of them.”
3. Act has an additional clause at this point repealing so much of the Act of 1778 as fell within the purview of this Act.