Constitution of the United States. Since the ratification of that Constitution the power of the courts to declare unconstitutional statutes void has become too well settled to require an accumulation of authorities. But as the office of the judiciary is to decide particular cases, and not to issue general edicts, only so much of a statute is to be declared void as is repugnant to the Constitution and covers the case before the court, unless the constitutional and unconstitutional provisions are so interwoven as to convince the court that the legislature would not have passed the one without the other.3

THERE will be found, in the Appendix to Part I. (infra, p. 381), the text of the Constitution of the United States and its amendments, and that of Massachusetts, without its amendments. Such passages, also, are there given from all the other State constitutions which preceded that of the United States, and from the colonial charters of Connecticut and Rhode Island, as are likely to be instructive for the purposes of this book. There are added, as indicating the conceptions which find expression in the more recent instruments, those parts of a typical modern constitution that of Colorado, adopted in 1876, "the year of the Independence of the United States, the one hundredth - which are most characteristic. The relative length of the older and the later instruments may be seen by comparing the original Constitution of Massachusetts, which fills a little over sixteen pages of Poore's Charters and Constitutions, with that of Colorado, which covers a little more than twenty-nine pages.

Finally the Appendix has certain interesting parts of an American Constitution outside the United States, viz., that of Colombia.

The Constitution of Massachusetts has a peculiar interest, not only as being the original Constitution of the State, and the oldest of all American instruments now in force, but also as being the first anywhere submitted to a popular vote and approved by the people.*

1 The very few reports which have been preserved of the judicial decisions of that period afford two such examples. In 1786 the judges of the Superior Court of the State of Rhode Island refused to act under a statute of the General Assembly, which provided for the trial of an offence upon information before the judges without a jury, contrary to the Constitution of the State as embodied in the Royal Charter of Charles 2. Trevett v. Weeden, reported by James M. Varnum, Providence, 1787; 2 Chandler's Crim Trials, 279 & seq. And in 1787 the judges of the Superior Court of North Carolina set aside an Act of that State, which deprived a citizen of his property without trial by jury, in violation of the State Constitution of 1776. Den v. Singleton, Martin N. C. 49.

2 Federalist, No. 78. Vanhorne v. Dorrance, 2 Dall. 308. Cooper v. Telfair, 4 Dall. Marbury v. Madison, 1 Cranch, 177-180. 1 Wilson's Works, 461, 462. 3 Story on Const. U. S. §§ 1570, 1608. 1 Kent Com. 449-454.

19.

3 Bank of Hamilton v. Dudley, 2 Pet. 526. Commonwealth v. Knox, 6 Mass. 77. Wellington, petitioner, 16 Pick. 95-97. Commonwealth v. Kimball, 24 Pick. 361. Norris v. Boston, 4 Met. 288. Fisher v. McGirr, 1 Gray, 21. Warren v. Mayor & Aldermen of Charlestown, 2 Gray, 98, 99. Jones v. Robbins, 8 Gray, 338, 339.

John Adams wrote, while this instrument was in preparation : "There never was an example of such precautions as are taken by this wise and jealous people in the formation of their government. None was ever made so perfectly upon the principle of the people's rights and equality. It is Locke, Sidney, and Rousseau and De Mably reduced to practice, in the first instance."- 4 Works of John Adams, 216. Adams was

Omitting Connecticut and Rhode Island, which lived under their colonial charters until 1818 and 1842 respectively, Massachusetts was the last of the original States in actually adopting a written constitution. Ten, and, if Vermont be counted, eleven constitutions had previously gone into operation; but none of them had been submitted to the popular vote. The Massachusetts Legislature, in 1778, had submitted the draft of a constitution to the people, but it was rejected. So, also, in 1779, in New Hampshire, a proposed second constitution was submitted to the people and rejected. The facts relating to all the States. will be found carefully gathered in Jameson, Constitutional Conventions (4th ed. 1887), ss. 126-157, and in the Table, Ib. 643. See also the notes, under the various instruments, in Poore's Charters and Constitutions.

Of this reference to the popular vote, sometimes called "the constituting referendum," and by the French the "plébiscite constituant," it has been said by a recent writer: "L'organisation de l'exercice du pouvoir constituant, telle que la consacrent actuellement les légissations américaines, appartient tout entière à la Nouvelle-Angleterre. Elle est basée, non seulement sur le principe que l'autorité constituante appartient au peuple, mais encore sur cette autre conception, ramenée dans le droit moderne par la Réforme puritaine, que cette autorité ne peut être représentée."

THIS case came before the court 2 by adjournment from the General Court, and was as follows:

John Caton, Joshua Hopkins, and John Lamb were condemned for treason, by the General Court, under the Act of Assembly concerning that offence, passed in 1776, which takes from the executive the power of granting pardon in such cases.3 The House of Delegates by a member of the convention which framed the Constitution, and had a leading part in preparing it. "I had the honor," he wrote, in 1780, "to be the principal engineer." Works, ubi supra. - ED.

1 L'Établissement et la Révision des Constitutions aux États-Unis d'Amérique, by Charles Borgeaud; Annales de l'École Libre des Sciences Politiques (1893).

2 Which at that time consisted of the judges of the High Court of Chancery; those of the General Court; and those of the Admiralty assembled together. Ch. Rev. 102, And the sitting members, upon the present occasion, were EDMUND PENDLETON. GEORGE WYTHE, and JOHN BLAIR, judges of the High Court of Chancery; PAUL CARRINGTON, BARTHOLOMEW DANDRIDGE, PETER LYONS, and JAMES MERCER, judges of the General Court; and RICHARD CARY, one of the judges of the Court of Admiralty.

3 The words of the Act are, "The Governor, or in case of his death, inability, or necessary absence, the councillor who acts as president, shall in no wise have or exer

resolution of the 18th of June, 1782, granted them a pardon, and sent it to the Senate for concurrence; which they refused. The men, however, were not executed, but continued in jail under the sentence; and, in October, 1782, the Attorney-General moved in the General Court, that execution of the judgment might be awarded. The prisoners pleaded the pardon granted by the House of Delegates. The AttorneyGeneral denied the validity of the pardon, as the Senate had not concurred in it and the General Court adjourned the case, for novelty and difficulty, to the Court of Appeals.

The resolution of the House of Delegates was in the following words: "IN THE HOUSE OF DELEGATES,

"Resolved that James Lamb, Joshua Hopkins, and John Caton, who stand convicted and attainted of treason by judgment of the General Court, at their last session, and appear to be proper objects of mercy, be and are hereby declared to be pardoned for the said treason, and exempted from all pains and penalties for the same; provided they and each of them repair to the county of Augusta within days from this time, and continue within the said county during their natural lives respectively. Ordered that Mr. Patrick Henry do carry the said resolution to the Senate and desire their concurrence."

The cause was argued in the Court of Appeals by Mr. Randolph, the Attorney-General, for the Commonwealth, and by Mr. Hardy and several other distinguished gentlemen for the prisoners.

For the Commonwealth it was contended, that the pardon was void, as the Senate had not concurred. That the clause in the Constitution might be read two ways, either of which would destroy the pardon. One was, to throw the words, "or the law shall otherwise particularly direct," into a parenthesis; which would confine the separate power of the Lower House to cases of impeachment only; and would leave those where the assembly had taken it from the executive to the direction of the laws made for the purpose. The other was, to take the whole sentence as it stands, and then the construction will, according to the obvious meaning of the Constitution, be that, although the House of Delegates must originate the resolution, the Senate must in all cases concur, or it will have no effect. For it would be absurd to suppose, that the same instrument which required the whole legislature to make a law, should authorize one branch to repeal it.

For the prisoners, it was contended, that the language of the Constitution embraced both sets of cases, as well those of impeachment, as those where the assembly should take the power of pardoning from the executive and, in both, that the direction was express that the cise a right of granting pardon to any person or persons convicted in manner aforesaid, but may suspend the execution until the meeting of the General Assembly, who shall determine whether such person or persons are proper objects of mercy or not, and order accordingly."— Ch. Rev. 40.

power of pardoning belonged to the House of Delegates. That the words of the Constitution, and not conjectures drawn from the supposed meaning of the framers of it, should give the rule. That the Act of Assembly was contrary to the plain declaration of the Constitution; and therefore void. That the prisoners were misguided and unfortunate men; and that the construction ought, in favor of life, to incline to the side of mercy.

The Attorney-General, in reply, insisted, that compassion for the prisoners could not enter into the case; and that the Act of Assembly pursued the spirit of the Constitution. But that, whether it did or not, the court were not authorized to declare it void. Cur. adv. vult.

WYTHE, J. Among all the advantages which have arisen to mankind from the study of letters, and the universal diffusion of knowledge, there is none of more importance than the tendency they have had to produce discussions upon the respective rights of the sovereign and the subject; and upon the powers which the different branches of government may exercise. For, by this means, tyranny has been sapped, the departments kept within their own spheres, the citizens protected, and general liberty promoted. But this beneficial result. attains to higher perfection, when those who hold the purse and the sword, differing as to the powers which each may exercise, the tribunals, who hold neither, are called upon to declare the law impartially between them. For thus the pretensions of each party are fairly examined, their respective powers ascertained, and the boundaries of authority peaceably established. Under these impressions, I approach the question which has been submitted to us; and although it was said the other day, by one of the judges, that, imitating that great and good man Lord Hale, he would sooner quit the Bench than determine it, I feel no alarm; but will meet the crisis as I ought; and, in the language of my oath of office, will decide it, according to the best of my skill and judgment.

I have heard of an English Chancellor who said, and it was nobly said, that it was his duty to protect the rights of the subject against the encroachments of the Crown, and that he would do it, at every hazard. But if it was his duty to protect a solitary individual against the rapacity of the sovereign, surely, it is equally mine, to protect one branch of the legislature, and, consequently, the whole community, against the usurpations of the other; and, whenever the proper occasion occurs, I shall feel the duty, and fearlessly perform it. Whenever traitors shall be fairly convicted, by the verdict of their peers, before the competent tribunal, if one branch of the legislature, without the concurrence of the other, shall attempt to rescue the offenders from the sentence of the law, I shall not hesitate, sitting in this place, to say to the General Court, Fiat justitia, ruat cœlum; and, to the usurping branch of the legislature, you attempt worse than a vain thing; for although you cannot succeed, you set an example which may

convulse society to its centre. Nay more, if the whole legislature, an event to be deprecated, should attempt to overleap the bounds prescribed to them by the people, I, in administering the public justice of the country, will meet the united powers at my seat in this tribunal; and, pointing to the Constitution, will say to them, here is the limit of your authority, and hither shall you go, but no further.

Waiving, however, longer discussion upon those subjects, and proceeding to the question immediately before us, the case presented is, that three men, convicted of treason against the State, and condemned by the General Court, have pleaded a pardon, by the House of Delegates, upon which that House insists, although the Senate refuses to concur; and the opinion of the court is asked, whether the General Court should award execution of the judgment, contrary to the allegation of the prisoners, that the House of Delegates alone have the power to pardon them, under that article of the Constitution which says, "But he (the Governor) shall, with the advice of the Council of State, have the power of granting reprieves or pardons, except where the prosecution shall have been carried on by the House of Delegates, or the law shall otherwise particularly direct; in which cases, no reprieve or pardon shall be granted, but by resolve of the House of Delegates."

Two questions are made,

1. Whether this court has jurisdiction in the case?

2. Whether the pardon is valid?

The first appears, to me, to admit of no doubt; for the Act constituting this court is express, that the court shall have jurisdiction" 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." Chan. Rev. 102: which emphatically embraces the case under consideration.

The sole inquiry therefore is, whether the pardon be valid?

If we consider the genius of our institutions, it is clear that the pretensions of the House of Delegates cannot be sustained. For, throughout the whole structure of the government, concurrence of the several branches of each department is required to give effect to its operations. Thus the Governor, with the advice of the Council of State, may grant pardons, commission officers, and embody the militia; but he can do neither without the assent of the council: the two branches of the legislature may pass laws, but a bill passed by one of them has no force: and the two houses of assembly may elect a judge; but an appointment, by one of them only, would be useless. This general requisition of union seems of itself to indicate that nothing was intended to be done, in any department, without it; and, accordingly, the fourth section of the Constitution declares, that "The legislature shall be formed of two distinct branches, who, together, shall be a complete legislature;" and the eighth, "that all laws shall originate in the House of Delegates, to be approved or rejected by the Senate." Thus requiring, in conformity to the regulations throughout the whole fabric