Commonwealth v. Wyatt6 Rand. 694 Va. 1828
The first proposition involves a question of the greatest magnitude, which should never be lightly and unnecessarily introduced into the deliberations of this court. Whether this court has authority to declare an act of the general assembly to be unconstitutional, and therefore void, is a question which admits of a great variety of opinion. Judicially to assert or to deny such authority, unless upon an occasion which palpably required such an opinion by the court, would expose it to the censure of all, without calling to its support the talents and influence of those who might concur in the principle asserted, if such principle were palpably applicable to the case decided. This court therefore declines the discussion, not because it would not firmly meet it if a palpable case were to require it, but because the case now under consideration does not require it, further than the notice now to be taken of it.
It is urged that the act of 1823, already referred to, while it properly limits the authority of the court to a reasonable extent of punishment to be inflicted on the party convicted, by imprisonment not less than one nor more than six months, yet authorises the court to inflict the lightest punishment by stripes imaginable, or the most cruel, even extending necessarily to death itself, for an offence of the same character and grade. For that, as the court may impose an imprisonment for six months, and may also direct the party imprisoned to receive any number of stripes, at different times, not exceeding thirty-nine at any one time, during his confinement, at the discretion of the court, it is perfectly evident that the court, by virtue of this law, might exercise its discretion to subserve vindictive passions, and so as to direct the party convicted to be subjected to thirty-nine stripes every day of the six months, which would inevitably terminate in death; a death produced by the most cruel torture. That by the bill of rights, properly regarded as part of the constitution of Virginia, the general assembly is restrained from authorising by law, "cruel and unusual punishments (to be) inflicted," and that therefore the authority delegated to the courts, as above described by the act aforesaid, being prohibited to the legislature, by the Constitution, cannot by it be delegated to the courts, and that the act aforesaid is therefore void, and ought so to be regarded by this court.
It may be allowed, that the act in question might be regarded as less objectionable, if the aggregate number of stripes, which might be inflicted for any one offence, had been limited as the term of imprisonment is; but this imperfection, if one, does not involve the consequences contended for, nor is it allowed that the discretion of the court mentioned in the act, can rightfully be regarded as unlimited. The responsibility of the court might have been lighter, if the act had been more cautiously dictated; but in all cases, where by law, whether statute or common law, a subject is referred to the discretion of the court, that must be regarded as a sound discretion, to be exercised according to the circumstances of each particular case. If the judge should not so limit the authority of his discretion, but extend it further to subserve motives of oppression, or his own vindictive passions, he might and would be impeached. The punishment of offences by stripes is certainly odious, but cannot be said to be unusual. This court, regarding the discretion delegated by the act in question, as being of the same character with the discretion always exercised by Common Law Courts to inflict fine and imprisonment, and subject to be restrained by the same considerations, does not feel itself at liberty in this case to refuse to obey the legislative will, nor to execute that will by its judgments.
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