Wythe, Edmund Pendleton, et al. to the Virginia Independent Chronicle & the Virginia Gazette and Weekly Advertiser “Resignation of the Judges,” 11 March 1789
March 11, 1789
The court, considering that the right of several of the judges to sit, is at least doubtful, on account of a resignation by one of his seat in the court of chancery, of the qualification of another, under his commission as a judge of the new court of appeals, of the declared intention of others to accept their new appointment, and of the want of a qualification by the last appointed judges of the general court under that commission, are of opinion, that it is adviseable to decline proceeding on the docket. But before the close of their session, they conceive (however painful the repetition) that they are again under an indispensable obligation to advert to an act of assembly which they are constrained to consider as incompatible with their independence. The act intended is an act of the last session for amending the act intituled an act constituting the court of appeals. The direct operation of this law is the amotion from office of the whole bench of judges of appeals, and the appointment of new judges to the same court. But although the office of a judge of the former court of appeals was, in the mode of election, as established by the act of 1779, accessory and appendant to an office in one of the superior courts; yet, a judge of this supreme court, properly invested, was by the constitution intended to be equally independent, and equally secure in the enjoyment of that office, as of the office of judge of one of the superior courts to which it was annexed, and therefore could not be constitutionally deprived of it. It appears to the court probably, that the general assembly were so much engrossed by the idea of the utility of their great object, the establishment of district courts, as either to have overlooked this difficulty, which stood in their way, or, if they perceived it, to have counted on the acquiescence of those whose rights were thus to be invaded; and in this expectation (if it was indeed intended) the legislature were not deceived: This court is truly willing to make any voluntary sacrifice for the attainment of so desirable an object as the establishment of courts, which by the expeditious administration of justice, will not only give that relief to suffering creditors, which has already been too long withheld from them, but contribute much to the increase of industry, and improvement of the morals of the people. Yet whatever concessions this court may be willing to make, they think it their duty to guard against encroachment.
And in conformity to these sentiments, after solemnly protesting against every invasion of the judiciary establishments, or any deprivation of office in that line in any other mode than as pointed out in the constitution, they do hereby of their mere free will, in order to make way for the operation of the salutary system lately adopted, resign their appointments as judges of the court of appeals; and as they do not hold any separate commission for that office, which might be returned, do order the same to be recorded.