eral Court, and appealed on the ground that they had been pardoned, and that they had been refused the benefit of their pardon. The governor had no right to grant a pardon in cases of treason; but he was authorized to suspend sentence " until the meeting of the General Assembly, who shall determine whether such person or persons are proper objects of mercy or not, and order accord ingly." The House of Delegates, by resolu tion of June 18, 1782, pardoned the prisoners, but the Senate refused to concur. The Attorney-General on behalf of the Com monwealth denied the validity of the pardon, because the Senate had so refused its assent to the action of the lower branch of the legislature. The question then came up squarely : Was this a constitutional pardon? All of the judges united in the opinion that the act of the House of Delegates was unconstitutional. Wythe and Pendleton both delivered opin ions. Said Wythe, one of the greatest judges who ever sat on the bench in Virginia: —
I, in administering the public justice of the coun try, 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 authoritv, and hither shall you go, but no farther. '"
Virginia had completely dissolved her con nection with Great Britain and established a constitution for her own government; and President Lincoln was mistaken in stating, in his message of July 4, 1861, that not one of the States " ever had a State Constitution independent of the Union." The Constitu tion under which the famous decision was rendered was " unanimously adopted " on the agth of June, 1776. Mason's Bill of Rights had been adopted with equal unanimily on the 1 2th of June. The other States declared themselves independent after the Declaration of Independence. Article III. of that Consti tution provided that " the Legislative, Ex ecutive, and Judiciary departments shall be separate and distinct, so that neither exercise the powers properly belonging to the other." That was all the guide these path-breaking "I have heard of an English chancellor who judges had to follow. In September, 17^0, Chief-Justice Brearley said, and ît was nobly said, that it was his duty to of the Supreme Court of New Jersey an protect the rights of the subject against the en croachments of the crown; and that he would do nounced that the judiciary had the right to pronounce on the constitutionality of laws; it at every hazard. But if it was his duty to pro tect a solitary individual against the rapacity of the the Rhode Island court in 1786, in Trevett v. sovereign, surely it is equally mine to protect one Weedon, claimed and exercised a similar branch of the legislature, and consequently the right; and the Supreme Court of South whole community, against the usurpations of the Carolina (Bowman v. Middleton, i Bay. 252) other; and whenever the proper occasion occurs, I in 1792. But one of these cases could by shall feel the duty, and fearlessly perform it. When any possibility have been before the Supreme ever traitors shall be fairly convicted by the verdict Court of Appeals of Virginia when it decided of their peers, before the competent tribunal, if Commonwealth v. Caton et al. The lan one branch of the legislature, without the concur guage of the judges all indicates that they rence of the other, shall attempt to rescue the offenders from the sentence of the law, I shall not had never heard of the ruling of the New hesitate, sitting in this place, to say to the General Jersey court, and the other internal evidence is practically conclusive of the fact that these Court, Fiatjustilia mat cxlum; and, to the usurp ing branch of the legislature, ' You attempt worse patriotic men were cutting their way boldlv than a vain thing, for although you cannot succeed through an unknown forest in the cause of It is hardly possible that you set an example which may convulse society to human liberty. its centre.' Nay, more, if the whole legislature — an this important case escaped the notice of event to be deprecated — should attempt to over John Marshall; it is not improbable that he leap the bounds prescribed to them by the people, was employed as counsel by some of the
