COMMONWEALTH v. CATON 4 Call's (Va.) Reports (1782)

Decided by the highest court of Virginia in 1782, this case is a disputed precedent for the legitimacy of judicial review. The state constitution of 1776, which did not empower courts to void enactments in conflict with the constitution, authorized the governor to grant pardons except in impeachment cases. A statute on treason deprived the governor of his pardoning power and vested it in the general assembly. Caton, having been sentenced to death for treason, claimed a pardon granted by the lower house, though the upper house refused to concur. The court had only to rule that the pardon was not valid.

Call's unreliable report of the case, a reconstruction made in 1827, indicates that the court considered the constitutionality of the statute on treason and that seven of the eight judges were of the opinion that the court had the power to declare an act of the legislature unconstitutional, though the court unanimously held the act constitutional. In fact, only one of the eight judges ruled the act unconstitutional, one held that it had no power to so rule, and another, george wythe, declared that the court had the power but need not exercise it in this case; he decided that the pardon had no force of law because it was not in conformity with the disputed act, which he found constitutional. A majority of the court, including Chief Justice edmund pendleton and Chancellor john blair, declined to decide the question whether they had the power to declare an act unconstitutional. Writing to james madison a week later, Pendleton reported, "The great Constitutional question … was determined … by 6 Judges against two, that the Treason Act was not at variance with the Constitution but a proper exercise of the Power reserved to the Legislature by the latter.…" Both houses subsequently granted the pardon. The legitimacy of the case as a precedent for judicial review is doubtful.

Leonard W. Levy
(1986)