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 con

currence, 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. But how, in public concerns, this is to be accomplished with just attention to the general welfare, has, in every age, been a 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 which should be decided according to the spirit, and not by the words of the Constitution.

The language of the clause is inaccurate, and admits of both the 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.1

1 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.

RUTGERS v. WADDINGTON.1

MAYOR'S COURT, CITY OF NEW YORK. August 27, 1784. THIS was an action of trespass brought against the defendant, upon an Act of the Legislature of this State, passed the seventeenth of March, one thousand seven hundred and eighty-three, for the occupation of a brew-house and malt-house of the plaintiff, from the thirteenth day of August, one thousand seven hundred and seventy-eight, until the time of passing the Act above mentioned. The cause came on to be argued upon demurrer, before the HONORABLE JAMES DUANE, ESQ., Mayor, RICHARD VARRICK, Esq., Recorder, BENJAMIN BLAGGE, WILLIAM W. GILBERT, WILLIAM NEILSON, THOMAS RANDAL, and THOMAS IVERS, ESQUIRES, aldermen, on Tuesday, the twenty-ninth day of June. past.

The counsel for the plaintiff were Mr. Lawrence, assisted by the Attorney-General, Mr. Wilcox, and Mr. Troupe. Those for the defendant were Mr. Hamilton, assisted by Mr. B. Livingston, and Mr. Lewis.

Mr. Lawrence opened the pleadings and arguments on the part of the plaintiff, and was followed by Mr. Wilcox. Mr Livingston, Mr. Lewis, and Mr. Hamilton, were next successively heard, in behalf of the defendant, and were replied to by Mr. Lawrence, Mr. Troupe, and the Attorney-General. The arguments on both sides were elaborate, and the authorities numerous.

The court took time to advise, until Tuesday, the twenty-seventh day of August, and then the Honorable the Mayor proceeded to deliver the judgment of the court, as follows:

In the case of Elizabeth Rutgers versus Joshua Waddington, which we gave notice should be determined this day, the court now proceed to judgment. It is represented to be a controversy of high importance; from the value of the property, which in this and other actions depends on the same principles; from involving in it questions which must affect the national character:-questions whose decision will record the spirit of our courts to posterity! Questions which embrace the whole law of nations!

It were to be wished, that a cause of this magnitude was not to receive its first impression from a court of such a limited jurisdiction, as that in which we preside; from magistrates actively engaged in establishing the police of a disordered city, and in other duties, which cut them off from those studious researches which great and intricate questions require. If we err in our opinion, it will be a consolation, that it has been intimated, "to be probable, whatever may be the determination that it will not end here."

1 Pamphlet, New York. Printed by Samuel Loudon. 1784. Edited, with an Historical Introduction, by Henry B. Dawson. Morrisania, N. Y. 1866.