Commonwealth of Virginia v. Caton

COMMONWEALTH v. CATON Et Al. Court Of Appeals Of Virginia. 1782.

This case came before the court(1) 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.(2) The House of Delegates by 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 Attorney General 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, "Tuesday the 18th of June, 1782. "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 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 coelum; 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 lie (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 of government, an union of the two branches, to constitute a legislature; and an union of sentiment in the united body, to give effect to their acts. And it is not to be believed, that, when this union was so steadfastly demanded, even in the smallest cases, it was meant to be dispensed with, in one of the first magnitude, and which might involve the vital interests of the community.

But if we advert to the motive for the regulation, the necessity for concurrence will be more apparent. For it is obvious, that the contests in England between the House of Commons and the Crown, relative to impeachments, gave rise to it, as the king generally pardoned the offender, and frustrated the prosecution. With this in view, the power of pardoning cases of that kind was taken from the executive here, and committed to other hands, in order that the evil complained of there might be removed. But the interpretation contended for by the House of Delegates, in effect, reverses the object. Thus the object was to put a check to prerogative in one department; the effect is to remove all check, and establish prerogative in another department. The object was to prevent disappointment, by one department, of the national will; the effect is to enable less than a department to defeat it....

These arguments receive some illustration from the twentieth section of the Constitution, recognizing the power of the whole legislature, and not one branch, to abolish penalties and forfeitures: which is contravened by the other construction; for, if the House of Delegates can remit part of the penalty, they may the whole, as well the forfeiture of the goods, as the corporal suffering. An idea utterly inconsistent with the recognition of a power, in the whole legislature, to do it.

Every view of the subject, therefore, repels the construction of the House of Delegates; and, accordingly, the practice is said to have been against it, ever since the formation of the government: which seems to have been the understanding upon the present occasion; for the resolution provides that it shall be sent to the Senate for concurrence.

This mode of considering the subject obviates the objection made by the prisoners' counsel, relative to the constitutionality of the law concerning treason; for, according to the interpretation just discussed, there is nothing unconstitutional in it. I am, therefore, of opinion, that the pardon pleaded by the prisoners is not valid; and that it ought to be so certified to the General Court.

Pendleton, President.... The question, upon the merits, is whether by the paper stated in the record as the resolution of the House of Delegates, these three unhappy men stand pardoned of the treason of which they are attainted in the General Court, or still remain subject to the execution of the judgment which passed against them upon their conviction? If the exclusive power of the House of Delegates on this occasion was to be admitted, it would be difficult to maintain that this resolution should operate as a pardon, since those who made it, by sending it to the Senate for their concurrence, appear to have suspended its operation until the concurrence of the Senate should be obtained, which not having happened, the force of it stands as yet suspended; or rather the Senate, by rejecting this, and the House of Delegates not passing another, their power remains unexercised, and the attainder retains its full force. But, as I do not make this the ground of my judgment, I shall pass to the two great points into which the question has been divided, whether, if the constitution of government and the Act declaring what shall be treason are at variance on this subject, which shall prevail and be the rule of judgment? And then, whether they do contravene each other? The constitution of other governments, in Europe or elsewhere, seem to throw little light upon this question, since we have a written record of that which the citizens of this State have adopted as their social compact; and beyond which we need not extend our researches. It has been very properly said, on all sides, that this Act, declaring the rights of the citizens, and forming their government, divided it into three great branches, the legislative, executive, and judiciary, assigning to each its proper powers, and directing that each shall be kept separate and distinct, must be considered as a rule obligatory upon every department, not to be departed from on any occasion. But how far this court, in whom the judiciary powers may in some sort be said to be concentrated, shall have power to declare the nullity of a law passed in its forms by the legislative power, without exercising the power of that branch, contrary to the plain terms of that constitution, is indeed a deep, important, and I will add, a tremendous question, the decision of which might involve consequences to which gentlemen may not have extended their ideas. I am happy in being of opinion there is no occasion to consider it upon this occasion; and still more happy in the hope that the wisdom and prudence of the legislature will prevent the disagreeable necessity of ever deciding it, by suggesting the propriety of making the principles of the Constitution the great rule to direct the spirit of their laws.

It was argued by the counsel for the prisoners, that the interpretation, now to be made, ought, in favor of life, to incline to the side of mercy, and that compassion for the misguided and unfortunate ought to have some influence on our decision.

Mercy — divine attribute! Often necessary to the best, sometimes due to the worst, and from the infirmities of our nature always to be regarded, when circumstances will admit of it. Hut how, in public concerns, this is to be accomplished with just attention to the general welfare, has, in every age, been & desideratum with statesmen and legislators. For, in human associations, other considerations, as well as the dictates of mercy, must be attended to. Compassion for the individual must frequently yield to the safety of the community. Society proceeds upon that principle. Men surrender part of their natural rights to insure protection for the residue against domestic violence, and hostilities from abroad; which can only be effected by the due execution of wholesome laws calculated to maintain the rights of private citizens, and the integrity of the State. But how would this be promoted by letting loose, notorious offenders to burn, to rob, and to murder, or to aid a foreign foe in his unjust attempts upon the liberties of the country? Mercy, in such cases, to one, would be cruelty to the rest.

Aware of this, the makers of the Constitution, considering that although, in representative governments, the laws should be mild, they ought to be rigidly executed; and that, although a power to pardon, which had often been abused in England, should exist somewhere, it ought never to be exercised without proper cause, framed the clause now under consideration; which provides that the Governor, or Chief Magistrate, "shall not, under any pretence, exercise any power or prerogative by virtue of any law, statute, or custom of England; but he shall, with the advice of the Council of State, have the power of granting reprieves and pardons:" not in all cases indiscriminately, but in such only as were least liable to abuse; the rest were confided to agents less exposed to temptation.

Thus the power was, in general, committed to the executive: but as to cases concerning the conduct of public officers, and those which policy might suggest to the legislature as proper to be taken from the Chief Magistrate and his council, it was thought a safer depository, beyond the reach of the various passions and motives which might influence a few individuals, would be found in the General Assembly; and therefore the clause excepts cases of impeachment, and those which the law might otherwise provide for. In these, the power of pardoning is reserved to the representatives of the people: but whether to one or both Houses is the important question. A question I which should be decided according to the spirit, and not by the words I of the Constitution. The language of the clause is inaccurate, and admits of both the I constructions mentioned by the Attorney-General, that is to say, 1. By throwing the words, "or the law shall otherwise particularly direct," into a parenthesis, to confine the power of pardoning, by resolution of the House of Delegates alone, to cases of impeachment only; and to leave those which the General Assembly might take from the executive, to the direction of the laws made for the purpose. 2. By taking the clause altogether, to make the representatives of the people the source of mercy, provided the consent of the Senate was obtained. Either view of the subject satisfies the present inquiry; but I prefer the first, as most congenial to the spirit, and not inconsistent with the letter, of the Constitution.

The treason law appears to have been framed upon this idea; and, in passing it, the legislature have, in my opinion, pursued, and not violated, the Constitution. Indeed, the House of Delegates appear to have understood it so themselves, as they sent the resolution to the Senate for their concurrence, which not having been obtained, the resolution is of no force, and the pardon falls to the ground.

Chancellor Blair and the rest of the judges were of opinion, that the court had power to declare any resolution or Act of the Legislature, or of either branch of it, to be unconstitutional and void; and that the resolution of the House of Delegates, in this case, was inoperative, as the Senate had not concurred in it. That this would be the consequence clearly if the words, "or the law shall otherwise particularly direct," were read in a parenthesis; for then the power of pardoning by the House of Delegates would be expressly confined to cases of impeachment by that House ; and, if read without the parenthesis, then the only difference would be, that the assent of the two Houses would be necessary; for it would be absurd to suppose that it was intended by the Constitution that the Act of the whole Legislature should be repealed by the resolution of one branch of it, against the consent of the other.

The certificate to the General Court was as follows : —

"The court proceeded, pursuant to an order of the court of Thursday last, to render their judgment on the adjourned question, from the General Court, in the case of John Caton, Joshua Hopkins, and James Lamb; whereupon it is ordered to be certified, to the said General Court, as the opinion of this court, that the pardon, by resolution of the House of Delegates, severally pleaded and produced in the said court, by the said John Caton, Joshua Hopkins, and James Lamb, as by the record of their case appears, is invalid."

N.B.—It is said, that this was the first case in the United States, where the question relative to the nullity of an unconstitutional law was ever discussed before a judicial tribunal: and the firmness of the judges (particularly of Mr. Wythe) was highly honorable to them, and will always be applauded, as having incidentally fixed a precedent, whereon a general practice, which the people of this country think essential to their rights and liberty, has been established.(3)

1 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. 2 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 exercise 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. 3 For an account of the earliest constitutional cases in the States see a valuable article in 19 Am. Law Rev. 175 (1885), by William M. Meigs, Esq., of the Philadelphia Bar. The earliest judicial decision of the point that judges may disregard legislative Acts at variance with the Constitution, appears to have been given in Holmes v. Walton, in New Jersey in 1780, — an unreported case, cited in 4 Halstead, 444. The exact date was determined by Professor Scott, of Rutgers College, a few years ago; see 2 Am. Hist. Assoc. Papers, 45 (1886). As to a dubious unreported Virginia case of 1778, see 19 Am. Law Rev. 178. Of reported cases the earliest are given in this book. In Coxe's Jud. Power and Unconst. Legis. 219-271, there is a valuable consideration of the early precedents in the States. — Ed.