The same doctrine was repeatedly asserted by Otis,1 and was a favorite in the Colonies before the Revolution. There are later dicta of many eminent judges to the effect

forced itself more distinctly upon the notice of the learned commentator between 1778 and his death in 1780.

Opposite the statements of the power of the Parliament in 1 Bl. Com. 49, 97, 161, 189, Quincy in his copy wrote "Qu," and references to Vattel's Law of Nations, Bk. 1, c. 3, pp. 15-19, and Furneaux's Letter to Blackstone, 81, 83. And at Blackstone's statement, "It must be owned that Mr. Locke and other theoretical writers have held that there remains still inherent in the people a supreme power to remove or alter the legislature, when they find the legislative Act contrary to the trust reposed in them; for when such trust is abused, it is thereby forfeited, and devolves to those who gave it.' But however just this conclusion may be in theory, we cannot adopt it, nor argue from it, under any dispensation of government at present actually existing.". 1 Bl. Com. 161, 162-the words here printed in italics are underlined by Quincy, who adds in the margin, "Tamen quare whether a conclusion can be just in theory, that will not bear adoption in practice." This very passage affords another instance of Blackstone's careful revision of his work. In the sixth and subsequent editions the word "practically" is inserted before the word "adopt;" and for the words "argue from it" are substituted “take any legal steps for carrying it into execution."

1 Jeffries v. Sewall, 2 John Adams's Works, 139. Rights of the British Colonies, 41, 61, 62, 71, 72, 73, 109, 110.

2 In the controversy of Massachusetts with the other Confederated Colonies of New England in 1653 upon the right of the Confederation to make offensive war, all parties agreed that any acts or orders manifestly unjust or against the law of God were not binding. 10 Plym. Col. Rec. 215-223; 2 Hazard Hist. Coll. 270-283. In 1688 "the men of Massachusetts did much quote Lord Coke." Lambert MS. quoted in 2 Bancroft's Hist. U. S. 428. And in 1765, Hutchinson, speaking of the opposition to the Stamp Act, said, "The prevailing reason at this time is, that the Act of Parliament is against Magna Charta, and the natural rights of Englishmen, and therefore, according to Lord Coke, null and void." "Summary of the Disorders in the Massachusetts Province proceeding from an Apprehension that the Act of Parliament called the Stamp Act deprives the People of their Natural Rights," 26 Mass. Archives, 180, 183. And see Hutchinson to Jackson, September 12, 1765, quoted ante, 441; Arguments of Adams and Otis on the Memorial of Boston to the Governor and Council, ante, 200, 201, 205, 206; 2 John Adams's Works, 158, 159, note. Even the judges appointed by the Royal Governor do not seem to have been prepared to deny this principle. John Cushing, one of the associate justices, in a letter to Chief Justice Hutchinson, dated “In a hurry, Feby. 7, 1766," upon the question whether the courts should be opened without stamps, wrote, "Its true It is said an Act of Parliament against natural Equity is void. It will be disputed whether this is such an Act. It seems to me the main Question here is whether an Act which cannot be carried into execution should stop the Course of Justice, and that the Judges are more confined than with respect to an obsolete Act. If we admit evidence unstamped ex necessitate Q. if it can be said we do wrong." 25 Mass. Archives, 55. And in 1776, after the Governor had left, and the Council and House of Representatives had assumed the government, John Adams, in answering a letter of congratulation upon his own appointment as Chief Justice of Massachusetts, from William Cushing, his senior associate, and who upon Adams's declination became Chief Justice in his stead, and afterwards a Justice of the Supreme Court of the United States, wrote, "You have my hearty concurrence in telling the jury the nullity of Acts of Parliament." 9 John Adams's Works, 390, 391, & note.

In a case before the General Court of Virginia in 1772, George Mason, as reported by Thomas Jefferson, argued that the provision of the statute of that Colony of 1682, that "all Indians which shall hereafter be sold by our neighboring Indians, or any other trafiqueing with us as for slaves, are hereby adjudged, deemed and taken to be slaves," was "originally void, because contrary to natural right and justice," citing Coke and Hobart, ubi sup. The only authority cited on the other side was 1 Bl. Com.

that a statute may be void as exceeding the just limits of legislative power; but it is believed there is no instance, except one case in South Carolina,2 in which an Act of the Legislature has been set aside by the courts, except for conflict with some written constitutional provision.3

The reduction of the fundamental principles of government in the American States to the form of written constitutions, established by the people themselves, and beyond the control of their representatives, necessarily obliged the judicial department, in case of a conflict between a constitutional provision and a legislative act, to obey the Constitution as the fundamental law and disregard the statute. This duty was recognized, and unconstitutional acts set aside, by courts of justice, even before the adoption of the

91. As the court held that the Act of 1682 had been repealed by a subsequent statute, it became unnecessary to decide the question. 2 Hening's Sts. at Large, 491. Robin v. Hardaway, Jefferson R. 114, 118, 123. And in the debates on the adoption of the Constitution of the United States, Patrick Henry said that the Virginia judges had opposed unconstitutional Acts of the Legislature. 4 Elliott's Deb. (2d ed.) 325. Et vid. sup. 519, note.

1 Ellsworth, in 3 Madison Deb. 1400; 5 Elliot's Debates, 462. Chase, J. in Calder v. Bull, 3 Dall. 388. Marshall, C. J. and Johuson, J. in Fletcher v. Peck, 6 Cranch, 135, 136, 143. Thompson, J. in Ogden v. Saunders, 12 Wheat. 304. Story, J. in Wilkinson v. Leland, 2 Pet. 657, 658. Ham v. M'Claws, 1 Bay, 95. 5 Dane Ab. 248. Parker, C. J. in Foster v. Essex Bank, 16 Mass. 270, 271, and Ross's Case, 2 Pick. 169. Richardson, C. J. in Opinion of Justices, 4 N. H. 566. Prentiss, J. in Lyman v. Mower, 2 Verm. 519. Redfield, C. J. in Hatch v. Vermont Central Railroad, 25 Verm. 66. Hosmer, C. J. in Goshen v. Stonington, 4 Conn. 225. Spencer, C. J. in Bradshaw v. Rogers, 20 Johns. 106. Walworth, C. in Varick v. Smith, 5 Paige, 159, and Cochran v. Van Surlay, 20 Wend. 373. Bronson, C. J. in Taylor v. Porter, 4 Hill, 144, 145. Jewett, J. in Powers v. Bergen, 2 Selden, 367. Bland, C. in Campbell's Case, 2 Bland, 231, 232.

2 In 1792 the Superior Court of South Carolina held that an Act passed by the legis lature of the Colony in 1712, which took away the freehold of one man and vested it in another, was 'against common right, as well as against Magna Charta," and "therefore ipso facto void." Bowman v. Middleton, 1 Bay, 252. [This case is, in truth, no exception. It is to be noticed that the decision pronounces the Act invalid as of 1712, when it was passed. At that time the authority of Parliament, and so of the statute of Magna Charta, was paramount in South Carolina. The terms of the decision are as follows: "The court (present, GRIMKE and BAY, Justices), who [sic], after a full consideration on the subject, were clearly of opinion, that the plaintiffs could claim no title under the Act in question, as it was against common right, as well as against Magna Charta, to take away the freehold of one man and vest it in another, and that, too, to the prejudice of third persons, without any compensation, or even a trial by the jury of the country, to determine the right in question. That the Act was, therefore, ipso facto, void. That no length of time could give it validity, being originally founded on erroneous principles. That the parties, however, might, if they chose, rely upon a possessory right, if they could establish it." It may be added that at the time of this decision the Constitution of the State expressly affirmed the principle of " common right," which is here in question. — ED.]

--

3 It was said by Chief Justice Parsons, and repeated by Chief Justice Shaw, that "the legislature may make all laws not repugnant to the Constitution." Stoughton v. Baker, 4 Mass. 529. Commonwealth v. Alger, 7 Cush. 101. And see Opinion of Justices, 7 Mass. 525; Patterson, J. in Vanhorne v. Dorrance, 3 Dall. 308; Iredell, J. in Calder v. Bull, 3 Dall. 398, 399; Washington, J. in Beach v. Woodhull, Pet. C. C. 6; Baldwin, J. in Bennett v. Boggs, Bald. 74; 1 Kent Com. 448; Verplanck, Senator, in Cochran v. Van Surlay, 20 Wend. 382; Bronson, J. in People v. Fisher, 24 Wend. 220; Cowen, J. in Butler v. Palmer, 1 Hill N. Y. 329, 330; Gibson, C. J. in Harvey v. Thomas, 10 Watts, 66, 67; Rogers, J. in Commonwealth v. M'Closkey, 2 Rawle, 374; Huston, J. in Braddee v. Brownfield, 2 W. & S. 285.

Constitution of the United States.1 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.2 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. 19. 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.

Mass. 77.

3 Bank of Hamilton v. Dudley, 2 Pet. 526. Commonwealth v. Knox, 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.

1 66

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 législations 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."

COMMONWEALTH v. CATON ET AL.

COURT OF APPEALS OF VIRGINIA.

[4 Call, 5.]

2

1782.

THIS case came before the court 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. 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,

66

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 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.