# On the Lottery Decision, No. 2

Part 2 of a 5 part series published in the Richmond Enquirer, of Virginia Opposition to Chief Justice Marshall , May 28 1821
(Richmond Enquirer, May 29, 1821.) ON THE LOTTERY DECISION.
No. 2.
To the People of the United States:
The address of the supreme court is remarkable, fellow-citizens, in the very outset of their opinion After stating that the controversy in question, arose under conflicting acts of the general and state governments, it adds, that, in the state court the plaintiff in error claimed the “protection” of the act of Congress. This word “protection”, seems to import the entire innocence of that party. It also implies, that the act of the corporation of Washington, under which he acted, was entirely without blemish, and that the statute of Virginia, under which he was prosecuted was wholly indefensible. Nothing can be more remote from the truth than all of these positions: and all this is even admitted by the supreme court itself. But for the conflicting act of the city of Washington, dignified by the supreme court with the name of a statute of the United States, there is no pretence to say that the statute of Virginia was at all objectionable; and the court itself has admitted that the act of the city of Washington is incompetent to retard its execution. This last mentioned act is under the actual decision of the court a void authority when taken in relation to the territory of Virginia: it, therefore, affords no justification, nor can give any “protection” to the person who acts under it.(1) From the showing of the court itself, therefore, the plaintiff in error was not innocent, nor could justly claim the “protection” of the act of Congress. That word, therefore, was unfortunately selected by the court in this instance; but it was not so selected without an object. That object was to excite your sympathy on the side of the appellant and to propitiate your judgment in favor of the principles it had determined in this case to establish.
The courts have next proceeded to say, for the purpose of giving themselves jurisdiction, in this case that the court of hustings, of the borough of Norfolk, in which the judgment appealed from was rendered, was the “highest court of the State, in which the cause was cognizable."
On the contrary, I humbly apprehend, that if the information in question be considered as a criminal prosecution, the circuit court for the county, and perhaps the general court of the commonwealth, have appellate jurisdiction. I infer this conclusively from the statutes referred to in the margin(2). I also think it not impossible, but that as the object of the information was to recover a sum of money due to the commonwealth, although, in form, it has the appearance of a criminal proceeding, in substance it might be held to be a decision upon a civil right:and if so, an appeal would lie upon it, to the supreme court of the commonwealth, under the distinction taken by that court in the case of Bedinger against The Commonwealth(3). In any view, however, the court of hustings, of the borough of Norfolk, was not the highest court in the State, in which the case was cognizable, and it was, therefore, prematurely carried into the Supreme Court of the United States. The error, if one existed, might have been equally well corrected in one of the appellate courts of the state. Probably, however, this point may have been conceded by the counsel, or, possibly, it may have been feigned by the court. A practice of that kind is not without example in that high court (4). Such a practice may be, also, very convenient to the supreme court in furthering its favorite object of expounding the Constitution, in the gross, and settling, by anticipation, the real causes which may come before it. The court proceeds to say, that the defendant in error moves to dismiss the writ of error, on three grounds, which are particularly stated. If the foregoing ideas be correct, the court should have added another ground of objection, and, itself, have dismissed the suit. It should have permitted the appellate courts of the State to have corrected the error which is complained of.
It is said, by the supreme court, that two of the points made at the bar are of great magnitude, and may be said vitally to affect the Union. If they even do, and yet power has not been given to the supreme court to interfere, the evil must be submitted to. We must say, with the venerable George Clinton (5) “that the powers of the general government ought to be extended if it be necessary; but, until they are extended, let us only exercise such powers as are clear and undoubted.” Several modes of amending the Constitution, being provided therein, the supreme court ought not, on the mere plea of danger, to interfere. This is always the tyrant's plea, and was the plea of the infamous ship money judges, mentioned in my first number. The supreme court must go by the charter of the Constitution, and have no right to say, that that would destroy the Union, which the convention did not think would do so. Besides, the confederacy of the states, and the constitution establishing it, is as well destroyed by taking from the members thereof. the powers reserved to them by that constitution, as by denying to the head of that confederacy, even those belonging to it. It can be as well destroyed by claims or powers of a centripetal, as those of a centrifugal tendancy.
The supreme court has said that the first point made in opposition to the jurisdiction of the court, is that “a state is a defendant". This is not a candid or accurate statement of the objection. It is admitted on all hands, that a state may be a defendant, in the supreme court of the United States, in the cases specified in the third article of the constitution; but it is denied that she can be so, at the suit of one of her own citizens, or that the jurisdiction of the supreme court, in the case of a state, can be exercised in its appellate character. As it is in this last character, that the jurisdiction in this case is claimed, and as it is admitted by the court that the plaintiffs in error are citizens of Virginia, it is evident that the objection has not been taken, in the broad terms in which it has been stated by the court. The next objection is, also, too broadly stated by the supreme court, It is that no writ of error lies from that court to the judgment of a state court. While it is not admitted that such a writ does lie, in any case, to the judgment of a state court, it is evident that there may be stronger cases, in its favor than the one before us. It is also evident that even the general words in which the objection in question may be stated are to be restricted and graduated by the very case be: fore the court. This position is sanctioned, by the supreme court itself, when it refers hereafter to its own decision in the case of Marbury vs. Madison. The objection, therefore, only is, in this case, that a writ of error does not lie from a judgment by a state court rendered between such state and its own citizens. Both these objections are grounded upon the principle, that the general government, in all its departments, can only exercise the powers which have been granted to it by the constitution and it will be seen hereafter that no power has been granted conferring on the supreme court the jurisdiction in question.
The court proceeds to say that these objections proceed on the admission, that the constitution or laws of the United States may have been violated by the judgment in question, and it is contended, notwithstanding, that it is not in the power of the “government” to apply a corrective. I must be permitted to say, that the objection in this case being, to the competency of the supreme court, to settle a power disputed between the two governments, and being a matter in abatement only, no such admission can be fairly inferred from the objection. The objection is, in its nature, entirely antecedent to any enquiry on the merits. It may or may not be, that the judgment, appealed from, violates the federal constitution; but it is only now said that the question is triable before the courts of one of the contending parties. If this objection be valid, it is evident that the “government” of the United States, being one of the contending parties, cannot apply a corrective. The vice, if any, lies in the constitution itself, and that can only be remedied by the people. The people can only settle a controversy as to the rights which are reserved, and those which have been granted, between the head of the confederacy and one of its members.
The court is pleased to add that these points maintain that the nation does not possess a department capable of restraining peaceably and by authority of law attempts which may be made by “a part against the whole,” and that the government must submit to such attempts or resist them by “force.” The fallacy of this argument consists, in keeping entirely out of view that our's is a federal government, consisting of divers members, having independent and sovereign rights From the use of the terms “part” and “whole,” it would be insinuated that we are only one nation, and, if so, it is admitted that the tribunals of that nation can settle all controversies whatsoever. The “parts,” in that case, are only citizens or subjects of the great nation, and have no pretensions as sovereign and independent powers. The court is, also, incorrect in saying, that there are no alternatives but submission or “force.” A peaceable appeal to the people by whom both governments were made would settle the clashing between the parties, as to their respective rights, and these delays are infinitely better than an absolute renunciation of our federal system, and the establishment of one great and consolidated government. These clashings, however, will not, perhaps, be as frequent as may have been supposed. At any rate, the defect, if it be one, can only be remedied in a constitutional manner.
The court proceeds to say that the constitution has provided a tribunal for the final construction of itself, and of the laws and treaties of the United States, and that that high duty is devolved by the constitution upon the supreme court. As this position goes the full length of saying, that this power is conclusive, even upon the reserved and constitutional rights of the several states, and excludes all other constructions and judicatures, whatsoever, it requires, indeed, the most serious consideration.
I will beg leave to remind that high court, that although, to some purposes, our government is national, it is, as to others, federal; that the states, except as the powers granted to the general government, remain sovereign and independent states; that our Union is, in fact, a confederation of free states, and that that character was not lost by adopting the present constitution; and that, thus being a confederation of free states, there are two parties to the compact, and that, consequently, neither of them is competent to settle, conclusively, the chartered rights of the other I will endeavor to prove all these positions, by the most clear and unquestionable authorities.
In proof that our government remains a federal one, with some features of nationality in it, will be seen in The Federalist (6), that it is not essential to a confederacy, that its authority should be restricted to its members in their collective capacities, without reaching the individuals of whom they are composed. Again it is said, that so long as the separate organization of the members of the confederate republic, be not abolished so long as it exists for local purposes, it will still be in fact and theory, an association of states or a confederacy; it is further said that our constitution so far from implying an abolition of the state governments, makes them constituent parts of the national government, as by allowing them a direct representation in the Senate, and leaves in their possession certain exclusive and very important portions of the sovereign power; and that this corresponds in every rational import of the terms, with the idea of a federal government (7). Again it is said, that the state governments are constituent and essential parts of the federal (8); and that the equal votes of the states, in the senate, is at once a constitutional recognition of the portion of sovereignty remaining in the states, and an instrument for preserving it to them (9). Again it is said, that each state, in ratifying the constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act, and that, in this relation, is a federal and not a national constitution (10); and, again, that the states are considered as distinct and independent sovereignties, by the proposed constitution (11). It is also admitted by the same authors, that while it is conceded that the government has many national traits or features in it, and is of a mixed character, it has at least as many federal as national features (12). In the Convention of Virginia, it was said by Mr. Madison, that the government is of a mixed nature; that in some respects it is of a federal, and in others of a consolidated nature, and that is shewn. to be federal, by the equal representation in the senate (13). The federal character of the government is further manifested, by the provision 2 of article I of the constitution, declaring that each state shall have at least one member in the house of representatives, although its population should fall below that of a congressional district. On what other principle is this, than that the sovereignty of the states is preserved, and that the government is a federal one? It is also said in a very able work lately published (14), that the words “more perfect union” contained in the preamble of the constitution, far from implying that the old parties to the Union were superseded, by the new, evidently mean, that the old parties (the states) were about to amend their old Union.
To show that the states, except as to the powers granted, remained free and sovereign states, I will add, to the authorities already quoted, the following: It is said in Vattel (15) that nations, like men, are considered as equal; that a dwarf is as much a man as a giant—and that a small republic is as much a sovereign state, as a powerful kingdom. Again, it is said (16), that a nation does not cease to be free, when she has fulfilled the obligations into which she has entered. Again, it is said (17), “that several sovereign and independent states may unite themselves together, by a perpetual confederacy, without each, in particular, ceasing to be a perfect state; and that they will form, together a federal republic.” To come home to the case before us—it is said in The Federalist (18), that in truth “the great principles of the constitution may be considered, less as absolutely new, than as an expansion of the principles, contained in the articles of confederation; and again (19), that the new constitution consists less in the addition of new powers, than in the invigorating its original powers. It was also said by Mr. Madison, in the convention of Virginia (20), that “the powers vested in the proposed government, are not so much an augmentation of powers, in the general government, as a charge rendered necessary for the purpose of giving efficacy to those vested in it before.” It was decided by the supreme court itself, in the case of Hunter vs. Martin (21), that the sovereign powers vested in the state governments, remain unaltered and unimpaired, except so far as they are granted, to the government of the United States. It was also decided by the Court of Appeals of Virginia, in the case of Warder vs. Arell (22), that though the several states form a confederated government, yet they retain their individual sovereignties, and with respect to their municipal laws, are to each other foreign.
With respect to there being two parties to our national compact, and as to that compact being a league or treaty, between all the states on one part and each state on the other, the case of Pennsylvania vs. Corbett, 3 Dallas 343, and Hunter vs. Martin, 4 Munf. 1, may be referred to. In both these cases this position was clearly and unanimously repelled, by the supreme courts of Pennsylvania and Virginia. It is also taken passim in the celebrated report of the Virginia Legislature, in the year 1799. It is also stated by Prof. Tucker (23), that the federal constitution is a compact whereby the states and the people are bound to the United States, and, by which the federal government is bound to the several states, and to every citizen of the United States. It cannot be otherwise, if the state sovereignties exist at all, and have any treaty or compact as a general government. As then there are two sovereign governments, connected together, by a league or treaty, are the courts of either competent to bind the constitutional rights of the other? And if so, which? And is not the right reciprocal? If this right exists, does it not exist in favor of the rights reserved, as well as the rights granted? And if this power exists, does it not hold a fortiori, in favor of the state judiciaries? These officers are bound by oath to support the constitution and laws of the United States whereas the federal judges are not so bound, in relation to the constitutions and laws of the several states. The judges of all the states have also an interest in the general government, and it is, emphatically, their government; but the judges of the federal courts have no interest in the government or laws of any state, but that of which they are citizens. As to every other state but that, they are, completely, aliens and foreigners.
On this great subject let us advert to some authorities. We are told by that noble martyr to the cause of liberty, Algernon Sidney, that when a controversy arises between Caius and Seius, neither of them may determine it, but that it must be referred to a judge, superior to them both; and that this is, not only, because each would judge in his own cause, but because both would have an equal right, and neither owe any subjection to the other. Again, he says, that no man can be my judge, but my superior, and that he cannot be my superior but by my consent, nor to any othel purpose than I have consented to (24). In principle, this authority is decisive of the case before us. It is said in Vattel that no sovereign ought to set himself up as the judge of another (25). Again, he says, that it does not belong to nations to usurp the power of being the judges of each other (26). Again, he says, that if there be any disputes in a state, respecting the fundamental laws, or on the prerogatives of the different powers of which it is composed, it is the business of the nation alone to judge and determine them (27). He says also that it would be highly unbecoming in a prince, to resolve to be the judge in his own cause (28). He, again, says (29), that “neither of the contracting parties has a right to interpret the act or treaty, at his pleasure, for if (says he) you can give my promise what sense you please, you can oblige me to do what you please, contrary to my intention, and beyond my engagement.” Again, he says, that the faith of treaties forms the only security of the contracting parties (30). In the case of Corbett vs. Pennsylvania, before adverted to (31), it was unanimously resolved by the supreme court of Pennsylvania, that all powers not granted to the government of the United States, remained with the several states; that the federal government was a league or treaty made by the individual states as one party, and all the states as another; that neither of the parties has the exclusive right to construe it, as to the extent of their respective rights; and that there is no common umpire between them but the people. The Legislature of the same great and patriotic state avowed precisely similar sentiments in their act instructing their senators to vote against the bank law, proposed in 1811, and added, “that the general government was not constituted the exclusive or final judge, of the powers it was to exercise, for that then, its judgment and not the constitution would be the measure of its authority (32). In the celebrated report of Mr. Madison, and which was ratified by the Legislature of Virginia in 1799, it is stated, that it is essential to the nature of compacts, that when resort can be had to no tribunal superior to the authority of the parties, the parties themselves must be the rightful judges, whether it has been violated (33), and that this was the principle upon which our independence was established. It was further resolved therein, that the judiciary is not, in such cases, a competent tribunal, for that there may be cases of usurpation, which can not be regularly brought before it; that if one of the parties, in such cases is not an impartial and competent judge, neither can its subordinate departments be so; that, in truth, usurpation may be made by the judiciary itself (34); and that the last resort by the judiciary is not in relation to the rights of the parties under the compact, under which that judiciary is derived (35). It is stated in the Federalist (36) that each department of the government, and consequently each of the two governments, should have a will of its own, and check each other; that this is essential to liberty; and that ambition must be made to counteract ambition. Again, it is said (37), “that in a single republic all the power surrendered by the people is committed to a single government, and that usurpation is guarded against, by a division thereof between the different departments”; but that “in the compound republic of America, the power is first divided between the two governments, and the portion alloted to each is sub-divided between distinct departments”; and that hence arises a double security to the rights of the people; and that the different governments will control each other, at the same time that each will be controlled by itself.” The same work states another case which is entirely analogous and in point. It says, that in a free government the security for civil rights must be the same as that for religious rights. It consists in the one case, in the multiplication of sects, and that the degrees of security in both cases, will depend upon the number of interests and sects (38). I will here say, with a writer before quoted (39), that if the jurisdiction of the supreme court is only limited by its own will, it is unlimited and that power cannot be checked by itself, or by its subordinate agents. It is further said in the same work (40), that if this most important power had been intended to be conferred on the court, it would have been expressly given, and that its omission is fairly accounted for, on the principle of the necessity of having checks: and again, that collisions between the two governments must have been, undoubtedly foreseen, but were submitted to as the lesser of evils, and on the ground that the people were the only arbiters who were thought safe or necessary (41).
I close this long list of authorities by one which cannot be heard by the sons of freedom, with indifference. It is the authority of our most distinguished sage and patriot, THOMAS JEFFERSON. In the resolution adopted by the legis-of Kentucky, in the year 1798, and admitted to have been written by him, it is resolved, “that the several states composing the United States of America, are not united on the principle of unlimited submission to their general government; but that, by compact, they constituted a general government for special purposes, delegated to that government certain definite powers, reserving each state to itself the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void and of no force. That to this compact each state acceded as a state and is an integral party, its co-states forming, as to itself, the other party; that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself, since that would have made its discretion, and not the constitution, the measure of its powers; but that, as in all other cases of compact, among parties having no common judge, each party has an equal right to judge for itself, as well of infractions as of the measure of redress” (42).
These authorities are more than conclusive to show, that in a contest for rights between the two parties to the federal compact, neither is competent to bind the other, both because it would in such case, judge in its own cause, and make the contract what it pleased, and because they both have an equal right to interpret that contract, and neither is bound to yield the point to the other. The matter is to be referred to their common superior, the people, who will justly settle the dispute between them. We ought not lightly to suppose that either party will usurp upon the other; but that tendency would rather be imputed to the stronger government: and one too, whose officers are not bound by oath, to respect the rights of the other party. Collisions between them are not to becauselessly apprehend. ed; but they are the lesser of evils, when compared to the despotic power which is now claimed for the supreme court, and which would sweep away the rights of the weaker party. It is said by the able writer before mentioned (43), that it is better to bear with clashing constructions of the constitution, than to yield up all our powers to the general government. Again it is said in The Federalist (44), that a concurrent power between the governments on the subject of taxation, is better than absolute subordination. It is said by the supreme court, that this immense and unreasonable power is given to them by the constitution. By what articles and section of that instrument is it conferred? If it be given, the articles can be distinctly pointed out. None such can be found, and, as the lawyers say, this immense power ought not to rest only in averment. If it was intended to be given, in so important and unreasonable a case, would it not have been expressly given? When a right is claimed by one of the contracting parties, to bind the other to the extent of its pleasure and discretion, ought we not to have chapter and verse for it? When the great principle is to be set aside, which forbids a party to decide his own cause. ought that power to rest only upon a remote and doubtful implication?
If it be said that the power is carried by the general words in the second section of the third article of the constitution, extending the judicial power to “all cases arising under the constitution” &c., it must be understood, with an exception of the cases to which the government is a party, in a contest with another contracting party. A general grant of power to the former chancellor of Virginia, over all causes in equity arising within the commonwealth, would not have enabled him, to decide his own cause. It is contrary to natural justice that any man, or any sovereign, should decide his own controversy. In such case, the general words of the grant, would be limited by the principle aforesaid. It would be as to it, lex sub graviorilege. The same principle would limit the grant of jurisdiction, in cases, “to which the United States shall be a party”. There are, besides, cases enough to satisfy the words of the grant, which would steer clear of the objection aforesaid; and it is a sound rule of construction, that where the words of an instrument may be, otherwise abundantly satisfied you are not to construe them to embrace the most unreasonable cases. It would, therefore, not only have been expected, that this power should have been expressly given, but it ought also to have been put at the head of the list. It is, in every view, a much more important power than that of deciding cases between the United States and individuals, or cases between two states. It ought, therefore, to have preceded the grant of the latter powers, had it been intended to have been conferred. All the lawyers well know that a specification beginning with a thing or person of inferior grade, excludes those which are superior.
All the departments of the general government, are checked and controlled by each other. Even the supreme court itself, powerful as it is, is not exempted from this control. Although, for example, it may render a judgment against the United States, it cannot take the money from the public treasury by execution. It is prevented by that clause of the constitution which declares, that no moneys shall be drawn from the public treasury, but in consequence of appropriations made by law. In this instance, the Congress of the United States have an evident check upon the judiciary. The whole instrument of the constitution abounds in these checks all around. They are essential to preserve the purity of the constitution. There is no doubt, but that they are more essential, as between the two governments. They hold a fortiori, as to them. It is much more necessary that powers of an entirely different character should be kept separate, than that those of the same character, should not shift their hands. It is in every view important, that the municipal powers reserved to the several states, should not be managed by those who were only delegated to manage the general concerns of the nation.
I will only add on this part of the subject, that although the people of each state, are parties to the general government, as well as to their own state-governments, they are so, in different rights. It is as if A, in his individual character, should contract with a commercial firm, of which he, with many others, is also a member This last circumstance would not authorize that firm, to construe the contract, so as to bind him, in his individual character, to what amount it pleased. His other right, as an individual would be also respected. It is believed that this case is entirely analogous to the one before us. The interest of each state, in the federal government of the union, does not premit the administrators of that government to encroach on the municipal rights reserved to the several states, by the confederation. The people of each state had a right to choose how far they would subject their rights to the control of the other citizens of America; and any further exercise of power, over them is by wrong and usurpation. In the extension of these powers, to the injury of the several states, neither the general government, nor its courts, have more right to act finally, upon the subject, than has the commercial company just mentioned.
Algernon Sidney.
* (1) 4 Bi Com 291-1 Strs. 711.
* (2) 1 Rev. Co. 230, 239; 221, 224.
* (3) Call 470.
* (4) See the opinion of Judge Johnson in Fletcher vs. Peck, 6 Cran. 87.
* (5) In his rejection of the second Bank Bill.
* (6) 1. Fed. 4.
* (7) Ib. 53.
* (8) Ib. 806.
* (9) Ib. 93.
* (10) Ib. 257.
* (11) Ib. 264.
* (12) Ib. 258.
* (13) Va. Debates, pa 76.
* (14) “Construction Construed” pa. 48. N. B. This book contains a vast mass of good principles and valuable information. It has already received the most distinguished approbation. To republicans it is “a star from the East,” but to the friends of consolidation, "it is foolishness.”
* (15) Vattel, pa 9.
* (16) Ib. 18.
* (17) Ib. 13.
* (18) 8 Fed. 265.
* (19) Ib. 303.
* (20) Debates, pa. 188.
* (21) 1 Wheaton. 304.
* (22) 2 Wash. 293.
* (23) 1 Tuck. B1. Appendix 14.0.
* (24) 2 Sidney on Gov, 339.
* (25) Vattel 242.
* (26) Ib. 250.
* (27) Ib. 32.
* (28) Ib. 184.
* (29) Ib. 370.
* (30) Ib. 372.
* (31) 3 Dail. 342.
* (32) See this quoted in Mr Leib's speech on that bill.
* (33) Report 39.
* (34) Report 40.
* (35) Ib. 40.
* (36) Ib. 2. Fed. 28.
* (37) Ib. 29.
* (38) Ib. 30.
* (39) Const'n Construed, 148.
* (40) Ib. 159.
* (41) Ib. 17.
* (42) Kent'y resolutions of 1798.
* (43) Const. Const'd, 146.
* (44) Pa. 251 or 25 [almost illegible]
This work was published before January 1, 1929, and is in the public domain worldwide because the author died at least 100 years ago.
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