# On the Lottery Decision, No. 5

Part 5 of a 5 part series published in the Richmond Enquirer, of Virginia Opposition to Chief Justice Marshall. June 8 1821.
(Richmond Enquirer, June 8, 1821.)
ON THE LOTTERY DECISION.
No. 5.
To the People of the United States:
In order to elude the force of the eleventh amendment to the constitution, fellow-citizens, the court is pleased to advert to what it terms a “part of our history.” That history does not justify the assertion that “all the states were greatly indebted” at the time of adopting that amendment. If some states were debtors, others must probably have been their creditors, and had a contrary interest as to the amendment in question. Possibly, however, the court meant that the citizens of those states, rather than the states themselves, were indebted. If so, they only, and not the states, would be sued, and that case did not call for this amendment; nor “could the fear of these suits being prosecuted” in the federal courts, form “a very serious objection to the adoption of the constitution.” Notwithstanding this amendment did take place these citizens have been sued, and these debts all recovered against them.
At the time of the amendment being adopted only three of the states had been sued in the federal court—Massachusetts, Georgia and Virginia. As for Virginia, that suit was not brought for any “debt," due by her. It was for a land claim upon her by the Indiana Company which had been formerly decided in her favor, and this decision was pleaded in bar. It is, therefore, a libel upon her to say ​that she was induced to this measure from any fear of debts being recovered against her. The court has not shown that any such existed. Again, as only three suits had been brought against the states, some other motive than the number of those suits, or the greatness of the danger arising therefrom, must have produced the amendment in question. If “the alarm was general,” it was not from the fears aforesaid, but from a fear of consolidation, resulting from the judgment of the supreme court and the total change of the government On the third of December, 1793 the legislature of Virginia had resolved, “that a state cannot, under the constitution of the United States, be made a defendant at the suit of any individual, and that the decision of the supreme federal court, that a state may be placed in that situation, is inconsistent with, and dangerous to, the sovereignty and independence of the individual states, as the same tends to a general consolidation of these confederate republics.” It was, at the same time, resolved, that our senators and representatives in Congress be instructed to obtain such amendments to the constitution “as will remove or explain any clause or article of the said constitution, which can be construed to imply or justify a decision that a state is compellable to ANSWER, in any suit, by an individual or individuals, in any court of the United States.” It was because the states claimed to be sovereign and independent states, although they had entered into a federal compact and because one sovereign state has no right to set itself up as the judge of another that this alarm took place; and not on the sordid ground of an unwillingness in the states to pay debts which are not shown to have had an existence.
The court infers that the motive of this amendment on ​the part of the states was not to avoid the degradation of the said states by being carried into the courts of another government. It infers this because that jurisdiction is still ceded as to controversies between two states, or a state and a foreign state. As to these, the jurisdiction is strictly proper, the courts of neither party being competent to bind the other, and forms a just exception from the principle above stated. But the case contemplated by the eleventh amendment is of another character. There was no reason to yield up the sovereign rights of the states to individuals of other states, when it was withheld from our own citizens, and when our citizens did not receive a correspondent favor in other states or countries. It is clearly an error, therefore, to infer that this objection did not prevail with the states in relation to a case in which it forcibly and emphatically existed, because it was relinquished in another case in which it could not have been justly urged.
The court says there must be some other cause than the dignity of the state, which produced this amendment. That other cause was the great principle just alluded to, As it is asserted, that the dignity of the state was not the real cause of the opposition the assertion is promptly denied. In the biography of the patriotic Governor Hancock, in the Sanderson series, said on good authority to have been written by John Adams, it is said that the former “in favoring a confederate republic, did not vindicate with less scrupulousness the dignity of the individual states, and that in a suit brought against the state of Massachusetts in the court of the United States in which he was summoned as Governor to answer the prosecution, he resisted the process and maintained inviolate the SOVEREIGNTY of the commonwealth.” As to the sense of the commonwealth of ​Virginia on that subject in addition to what has already been said, I beg leave to refer to the following resolutions of her legislative body. In the session of October 1792, the Legislature referring to the suit then depending against Virginia in the federal court, inter alia, resolved “that the state cannot be made a defendant in the said court at the suit of any individuals.” Again in the session of 1796, it was resolved that the executive take such measures to defend the above mentioned suit, “as may seem to them most conducive to the HONOR and interest of the commonwealth.” I will only here add from The Federalist, that it is inherent in the nature of sovereignty not to be amenable, at the suit of an individual without its consent, and that this exemption is one of the attributes of sovereignty now enjoyed by the governments of every state in the Union, and that therefore, unless there be a surrender of this immunity, in the constitution, it will remain with the states. Again it is said, that “to ascribe to the federal courts by mere implication and in destruction of a pre-existing right of the state governments, a power which would involve such a consequence would be altogether forced and unwarrantable."
Although these just objections touching both the sovereignty and dignity of the states, existed as to suits brought by individuals and a jurisdiction was justly ceded to the federal courts as to claims by other states, for the purpose of a fair and equal arbitration of them, the anxiety of the states to obtain the eleventh amendment to the constitution is ascribed by the court to motives entirely sordid. They have said that the jurisdiction was denied thereby to the citizens ​of other states because they might be extensive creditors of the states, whereas other states, or foreign states might not be so. This imputation is equally unsupported and ungenerous. A good reason existed for the inhibition of the former class of cases which did not exist as to the latter. A jurisdiction as to the latter was permitted not only because it was in itself just and fair, but would avoid broils and wars with other powers. A foreign state may justly complain of the judgments of a rival state rendered against her, but the interests of her subjects will be concluded thereby and no cause of war afforded, unless at least the injustice be glaring. No nation especially can justly complain that the states do not give a preference to foreigners over their own citizens in their courts, as none of them give a similar preference to our citizens suing in their respective kingdoms.
The court goes on to say that they are led by the causes to which they have been pleased to ascribe the amendment in question (and which I have endeavored to show are not justly to be imputed to the states) to consider that amendment as only intended for those cases in which “some demand is made” against a state by an individual. Whatever may have been intended the words themselves of the amendment cannot be so restricted. They are comprehensive words as could be used to interdict all suits whatsoever commenced or prosecuted in a federal court. There is no reason resulting from the sovereignty or dignity of the states which does not apply as well to cases in which the state is exhibited as plaintiff, as defendant; and every reason which allows the state courts to have a just cognizance of the cause permits that cognizance to be final. The state is a defendant to a writ of error, sued out against her, and ​there is but little difference between the summons by which an original suit is commenced, and a citation which is consequent on a writ of error. The object of both is to give notice of the existence of the suit, and both are, or ought to be, conceived in the least objectionable form.
The court still imputing to the states unworthy motives for wishing for the eleventh amendment to the constitution, on which it seeks to narrow the construction of that amendment, say that “a general interest might well be felt in leaving to a state the full power of consulting its convenience in the payment of its debts, or of other claims upon it, but no interest could be felt in so changing the relations between the whole and “its parts,' as to strip the government of the the means of protecting, by the instrumentality of its courts, the constitution and laws from active violation.” That general interest could not be felt, unless there was a general indebtment by the states, which is not shown, believed or admitted to be the fact. This, therefore, was not the real motive for the amendment in question, but the laudable and honorable ones I have already stated.
The court has entered into a string of technical quotations and subtleties to show that the eleventh amendment only applies to “demands” existing in favor of individuals, in the first instance and suits commenced therefor in exclusion of demands arising subsequently, to be relieved from what are supposed to be erroneous judgments in the state tribunals; and they say that the words of that amendment justify and “require” that construction. As to these words. if the objects of the states extended to the last as well as the first, what more comprehensive terms could have been used? “Commenced” and “prosecuted,” embrace every possible case. Referendo singula singulis; this word “prosecuted” ​would reach a case brought into the federal court, although not originally “commenced” there. This natural construction of this word holds a fortiori as the objection to the federal jurisdiction, on account of the state dignity and sovereignty, is, in both cases the same. A technical and verbal criticism, contrary to these great principles, and withholding a case from the final cognizance of the state courts, which is in an equal degree, in derogation of the rights of the states, is unworthy of the cause and of the parties. The states who made the amendment would not have been satisfied by the inhibition, as now narrowed and explained. They would never have conceded that their courts are not as impartial in rendering a judgment in their favor as in giving a judgment against them. This is the ground of the distinction taken by the supreme court. Unless there be a difference in this respect against the impartiality of the state tribunals, a jurisdiction is inhibited in the first case as well as in the last. The court has here brought to its aid, and in extension of its own jurisdiction, principles too nice for common observation. They consist of filaments so slender as only to be seen through the magnifying glass invented by the court in favor of their own prejudices and love of power.
I join issue with the supreme court in its idea that a suit against a state is a process sued out against it (as the citation in the writ of error is) and for the purpose of establishing some claim against it by the judgment of a court. The object of the present writ of error is to get a judgment of exemption as to the hundred dollars now in controversy. In substance therefore this writ of error is entirely a suit. It is also undoubtedly a suit, technically speaking and in point of law. That is undoubtedly a suit or action which ​can be relinquished by a release of all suits and actions. This is the case of a writ of error. That writ of error is to be released as a suit and therefore is a suit, by means of which the plaintiff is to recover or be restored to anything; although it is otherwise, as in the case of the reversal of an outlawry, &c., in which nothing had been recovered against the plaintiff. The plaintiff in error is restored to the thing recovered against him by the mere reversal of the judgment. It is not necessary that his money should have been taken from him and put into the pocket of the defend. ant. There need not be a change of possession or constitute a restoration of the property. And in some cases as where the goods are sold to a stranger, there cannot be a literal restoration of the property of the plaintiff in error. In those cases he is only restored to the money, No argument can be drawn against this construction from the form of the judgment. It is true the judgment in this case is only “quoad judicium reverseter,” and no positive judgment is rendered by the appellate court for anything. Its effect is however the same. I retain my own property, and in fact recover it from you as well by destroying your judgment for it, as by obtaining a judgment against you in my own name.
The court, for the purpose of softening the case, and withdrawing writs of error from operation of the eleventh amendment, is pleased to style a writ of error “a commission,” &c., yet it is also obliged to admit that it is an action, by admit. ting that a release of all actions will release a writ of error by which a party “recovers” or “is restored to" any thing. As plaintiffs, failing to recover anything in the ​courts below, may bring error, as well as defendants against whom judgments have passed, the words, “recover,” and be “restored to.”apply to those cases respectively. I have already said that an actual change of property is not necessary to give application and effect to the word “restore.”
The court says that the object of the amendment was both to prohibit the commencement of future suits, and to “arrest the prosecution” of those which were pending at the time of the amendment: and that this object satisfies and gives the key to the word “prosecuted.” It never could have been the intention of the amendment to interfere with the suits already existing. That would destroy the lex temporis altogether and set aside the great principle that suits rightly brought ought to be determined. As the federal court was still continued in existence, these suits should have been finished by it. In fact, (as the court is fond of history) the then pending suits were not immediately “arrested by virtue of that amendment. That amendment was unanimously adopted by the legislature of Virginia, in October, 1794, and might, before, have become a part of the constitution by the adoption of other states, and yet the suit pending against Virginia in the supreme court, was pending on December 26th, 1796, as appears by a resolution before referred to. This suit therefore was not at once arrested by the supreme court, as most probably it would, had that been the sole purpose of this amendment I admit that at a future time it was decided by the supreme court, in the case of Hollingsworth against the State of Virginia, that this amendment embraces cases, depending at the time on the docket; but it was also decided that it extended to cases “prosecuted” ​in future. This decision negatives the idea of the court, that the term was confined to the cases then pending.
As it has this future operation also under this decision, and as the word “commenced” is also used in the amendment, for what other purpose could the word “prosecuted" have been inserted, but to embrace cases which, although not commenced in the federal courts were “prosecuted” there?
This idea of the supreme court is also entirely reprobated by another consideration. It is consistent with no rules of fair reasoning to construct an instrument, which the court itself says was “designed to attain immortality” by the pending and ephemeral incidents of the present time. It is wrong to draw any inferences in the teeth, too, of great principles, from the accidental existence at the time, of three causes on the docket of that court. The decision of the supreme court last mentioned overthrows this idea of their successors. It shows that the amendment as to the word “prosecuted” was not confined to the pending suits.
The court is entirely mistaken I conceive, in supposing that the only effect of a writ of error is “simply to bring the record into court” for the “sole purpose of an enquiry by that court, whether the judgment appeal from violates the constitution,” &c. It is brought for the far more important and substantial purpose of reversing a judgment, by which the party bringing it supposes himself to have been aggrieved. It is a real and substantial proceeding, and is not to settle mere abstract questions about the Constitution. It also changes the right of property, by declaring that money or property now belongs to the plaintiff in error, which had been before adjudged to belong to the defendant. ​If this be not a suit, I cannot conceive what is. The court again says—repeating the same idea—that the plaintiff in error only asserts the constitutional right to have his defence examined by the superior court. This is the truth; but it is not the whole truth. He also claims a judgment from the supreme court, by which a judgment to his injury is to be reversed.
I must here remark once for all, that these are new and strong proofs among many others, of the artful manner in which the pretensions of the supreme court are almost always stated. Everything which makes against their side of the question is greatly distorted and aggravated, and everything in its favor is very much palliated and softened. They often assume premises which cannot be conceded and take for granted what ought to be proved. There are arts, I had almost said artifices, scarcely to be excused in an advocate and which are surely unworthy of the high character of the supreme court.
As for the hair-splitting distinction between a citation and a summons, taken with a view to discriminate between a writ of error and an action, I cannot comprehend it. Both are served upon, or left with the Governor, and he may attend to both, or decline them at his election; but the results are precisely the same. If he does not appear upon a summons, a judgment may be rendered against him by default, and if he neglects a citation, an existing judgment in his favor may, perhaps, be reversed. There is no substantial disference between the two processes.
For the purpose of showing that a writ of error is not a suit, and therefore, not interdicted by the eleventh amendment, the court says, that while the former has always lain against judgments in favor of the United States, it is “the universally ​received opinion” that “no suit” can be commenced or prosecuted against the United States. By saying that this is “the universally received opinion,” I infer that that matter has never been solemnly decided by the supreme court. On general principles I am clearly of opinion that such suits would lie. The objection only, is that a state cannot be sued in the courts of a foreign power. There is no objection to their being sued in their own courts. We are told by Vattel (12) that all just governments ought to appoint impartial judges, and that in all free and well-regulated states, the ordinary tribunals decide the cause in which the sovereign is concerned with as much freedom as those between private persons. Instead therefore of grinding the states to dust and ashes, and impairing their sovereignty by “dragging” (13) them before the federal courts, in the teeth both of great principles, and of the eleventh amendment, these judges should extend the golden principle I have just stated, so as to make the United States amenable to justice. They should extend the principle on which they have, without any legislative act upon the subject, already acted upon the United States, as they say by means of a writ of error, to other actions also While there is nothing in the sovereignty or dignity of the United States, which forbids their own judges from passing upon them, they would be sufficiently shielded from unjust judgment by the check on the subject of appropriations provided by the constitution.
The court in concluding its opinion on this part of the subject, is equally politic and uncandid, as in the others. It would again insinuate that the sole purpose of the writ of ​error, is to re-examine the question whether the constitution, &c. had been violated. It is also uncandid to say, that the effect of that writ is not to restore the plaintiff to the possession of a thing, that he demands. If the money of the plaintiff in error had been made under the reversed judgment, I presume that it would have been restored to him by the effect of the writ of error, and the judgment of the reversal by the supreme court; and there can surely be no real difference between a writ of error sued out before or after the levying of the execution.
The court then goes to say, that if they are mistaken as to this effect of a writ of error, and if a writ of error be a suit within the meaning of the eleventh amendment to the constitution, the one before us is yet not a suit within the operation of that amendment, it not being a suit “prosecuted by a citizen of another state, (or by a state), or by a subject or citizen of a foreign state.” I must here remark, by the way, that the court errs in supposing that that amendment extends to suits brought by “a state.” I proceed to remark that the court is of this opinion, because, on the contrary, the plaintiff is a citizen of Virginia, and because, by the constitution as it originally stood, the judicial power was extended to all cases arising under the constitution &c. without respect of parties, and therefore included controversies between a state and its own citizens. The amount of this reasoning seems to be that, although the court would be bound by a jurisdiction once given, and then retracted by the people of the United States, even when the construction of that constitution should come in question, it would assume it without hesitation in a case, in which it has never been granted or, if granted, only granted by remote and distant implication; and yet the court is as much ​bound by the tenth, as the eleventh amendment to the constitution—which declares, “that the powers not delegated to the United States, by the constitution, nor prohibited by it to the states, are reserved to the states, respectively, or to the people.”
As to a jurisdiction between a state and its own citizens, there never was any pretence to say that it ought to be granted to the courts of the general government in any form, or quoad and subjects. In addition to the general objection to it before stated, there was no necessity for it. The most feverish and unwarrantable jealousy of the state tribunals never apprehended any want of impartiality in them toward their own citizens. In relation to the citizens of other states, some imputations of partiality were indulged, and by the original constitution a jurisdiction as to them was conferred. Even that idea was spurned by the states, and hence resulted the eleventh amendment. In repudiating the jurisdiction of the federal courts in relation to the citizens of other states that amendment more than abandoned the claim as it related to citizens of the same state. It was abandoned on the principle that it had never been given; and on the further principle that the greater includes the lesser. No man had ever said or believed or thought, that it ought to have been given, or was given. The proposition would have been indignantly spurned, if made at the time of adopting the constitution. The idea is but newly started.—I had almost said trumped up. It has been drawn out from one of those hidden reservoirs, from which the supreme court is in the habit of drawing supplies of principles that are to demolish and destroy our happy confederation.
The supreme court in asserting its appellate power over ​those of the states, denies that the judgments of the latter are independent of their power; or that the state quoad their judiciaries are to be considered as independent states; and they say that there are no words in the constitution, conveying a contrary idea. I might say with more force, e converso, that there are no words in that instrument delegating this appellate power to that court. I might also say that the appellate power given to the supreme court is amply satisfied by reference to the inferior courts of the general government.
The same system however, which for the favorite purpose of increasing the powers of the general government, dispenses with all laws and rules whatsoever, on the subject of parties, may as naturally go on and for the same purpose pass the boundaries established between the two governments; and thus the courts of one government be let in to reverse the judgments of another. While it is admitted with the supreme court that to many purposes the United States forms a single nation, it is claimed on the other hand that they form several and sovereign nations as to all other purposes. They form several states or nations, except in cases, and as to powers, as to which by grants of powers in the constitution they have consented to be one nation; and no such grant as that now in question is to be found in relation to the appellate power. In relation to such an anomalous, unusual and important power, it would not have rested on implication had it been intended to be conveyed; it would have been given in express terms. It is not enough for the supreme court therefore to say, that as to many purposes, the United States form a single nation. They ought to go on and say that they do so as to this purpose. They ought even to put their finger upon the specific ​clause in the constitution, which contains the special delegation of it. Nor is it enough for the court to say or even prove, that it is highly reasonable, that quoad this power also the United States should form but one nation. That is an enquiry proper for the next convention called to amend the constitution, or for the consideration of the people of the United States, but with which the court has certainly nothing to do.
The ideas entertained on this point at the time of adopting the constitution are in utter conflict with that now holden by the supreme court. They were so entertained in the Virginia Convention both by the friends and enemies of the Constitution. Mr. Pendleton whose authority, especially on subjects of this nature, is and ought to be great, says: that it was probable the first experiment would be to appoint the state judges to have the inferior federal jurisdiction. Mr. Madison said that it will be in the power of congress to vest the inferior federal jurisdiction in the state courts. Mr. Mason said that this jurisdiction may be vested in the state courts. These expressions, “appoint,” “have” and “vest” are entirely inconsistent with the idea that the state courts had that jurisdiction before. So Mr. Grayson said explicitly, that there is no connection between the state and federal courts. Again he says that the state judges form the principal defense of the rights of the states and that Congress should not take from them their “only defensive armour.” Mr. Henry indeed says that “by construction, the supreme court will ​completely annihilate the state courts.” That great political prophet too well foresaw that this “defensive armour” would be completely taken from us, and the state judiciaries completely annihilated. The venerable G. Mason said that there were many gentlemen in the United States who thought it best to have one great consolidated government, and that this was to be IMPERCEPTIBLY effected by means of the federal judiciary.
Against these great and virtuous characters the supreme court—without deigning to advert to them!—is pleased to array the testimony of Mr. Hamilton. This witness stands condemned where the rights of the states are concerned, by his well known preference of a consolidated government, and by his having been in eager pursuit of the ratification of the constitution when he wrote his essays. They were written as it were in the heat of a controversy and his treatise is not therefore to be considered as a calm and temperate construction of the constitution. The court is fond of coupling the name of Mr. Madison with that of this gentleman as the reputed authors of that work, the Federalist; but it is unquestionable that Mr. Hamilton wrote exclusively the sections in relation to judicial power. The passage quoted from that book by the court, to show the existence of the right of appeal in this case, is inconsistent with the opinions of Mr. Madison as stated to have been given in the Virginia Convention; and most probably the latter gentleman from his distant residence had not seen them until they were published. The authority of this passage is also much weakened by another from the same gentleman, which unquestionably proves too much. It ​shows that an appeal will lie from the highest state courts to “the subordinate federal tribunals!“ or “to the district courts of the Union!“
This idea carries with it a preference for the federal tribunals, so marked and so unreasonable, and a suspicion of the state courts so derogatory and unjustifiable, as to weaken entirely the authority of the writer, I have, myself, often referred to the Essays in this work, and found great support to my opinions therefrom; but we ought not adopt therefrom all its ideas however absurd, rupugnant or unreasonable. If, without the jurisdiction now claimed, it is alleged that danger will ensue to the constitutional rights of the general government, let us not forget that there is another party to the compact. That party is the state governments who ought not to be deprived of “their only defensive armour.”
As for the contemporaneous construction of the constitution by the congress who passed the judicial act of 1789, and relied upon, also, by the court, there are many circumstances combining to weaken its authority. One alone is conclusive. That act was passed in great haste by congress, and amidst a vast mass and pressure of other business. It had not time enough, therefore, to devote to every particular topic. The authority of that congress has also been reprobated by the judgment of the supreme court itself on another point, in the case of Marbury v. Madison. It was solemnly decided in that case that the act had erroneously given the power of issuing a mandamus to the supreme court. It was so decided, although none who read that decision, can for a moment doubt, that it would have been very grateful to the court to have sustained its jurisdiction.
The supreme court has also much exulted that its own uniform ​decisions in favor of its own jurisdiction, on the point of sustaining an appeal from a state court, have been assented to by “statesmen and legislators” of our country, and “with a single exception” by the courts of “every” state in the Union, whose judgments have been revised. It has not yet been shown how many of the states have had their judgments so revised. As for the “statesmen,” I suppose that Mr. Hamilton is chiefly referred to by the court. I leave him upon what has been already said, and only adding that he has been greatly outweighed on this point by the great and veneralle characters, whose opinions have been quoted. As for the “legislators” referred to by the court, none are particularized, but those of the congress of 1789, and their authority has been condemned by the supreme court itself, as I have already stated. As for the judges in general, before whom this matter may have come, it is well known how prone all men are to bend the knee to to superior power. The courts of small states cannot be well expected to array themselves, almost under any circumstances, against the supreme court of the United States; and as for the larger states it is a great undertaking for even their courts. Perhaps, too, the cases have not generally occurred in the state courts. Five and twenty years had ensued since the adoption of the constitution, before this question presented itself in the supreme court of Virginia. Prior to that time, that court could only have come at the question by a feigned case, as was done (as Judge Johnson in" forms us,) by the supreme court of the United States, in the famous Yazoo cause brought before it. The day of retribution may yet, however, come around, and the rights of the states, involved in those of their courts, resumed. Unless it be so we may bid a final adieu to the fond idea of a federal ​government. As for the “single exception” alluded to by the supreme court, it was rendered upon great consideration by the unanimous opinion of the court of appeals of Virginia. The motives of the court have certainly never been questioned. The decision itself has met the decided approbation of the co-ordinate departments in that commonwealth. It is also believed to be in accordance with the general opinion of at least the Virginia people. The arguments used by the court are reported in 4 Munf. pa. 1, and it is believed cannot be answered. They certainly have not been answered in the case in Wheaton referred by the supreme court.
On this part of the subject I beg leave to add from a distinguished writer before quoted that the supremacy bestowed by the judicial article is over the inferior courts to he established by congress, not over the state courts; that this is manifest from the division in the article between the supreme and inferior courts; and that the term “before mentioned” restricts the appellate jurisdiction to what was defined in the preceding article, and excludes cases abiding in the state courts. Again, he says that the judicial federal power has as little to do with state judicial powers as the federal legislature has with the legislatures of the states. Again he says that the spheres of the federal and the state judiciaries are as separate as those of the courts of the neighboring states or countries.
The supreme court in inferring a power which evidently leads to consolidation relies upon the preamble to the constitution which states one of its objects to be to “form a more perfect union.” In addition to the arguments commonly ​used to show that this preamble cannot be taken into the account, in deducing the powers of the General Government, I will add from the writer last mentioned that this expression, far from implying that the old articles of confederation, and “perpetual union” between the states were to be given up, in favor of a new, national, and consolidated government, strongly implies the contrary. He adds that a single compact among individuals for establishing a government, is never termed “an Union;” but that that term emphatically applies to compacts between distinct states; as was the case as aforesaid, in the title of our former articles of confederation. This idea is further corroborated by the expression “more perfect” connected with it. This last expression admits the existence of a former government which is to be continued and improved by a new government of the same character. It is absurd then to say that the old confederation is at an end or to stickle for powers which cannot be justified on no other idea.
The supreme court have justified their jurisdiction in the present case by referring to the jurisdiction of the appellate courts of the United States in prize causes under the former government. Congress, by that constitution, had power to establish courts for receiving and determining finally appeals in all cases of capture; but they had no authority to establish inferior courts of this character. Unless, therefore, these appellate courts acted under the decrees of the state courts, they would have been wholly without jurisdiction. That case then, does not apply to the one before us. In the present government, inferior federal courts are to be also established. The supreme court, therefore, can get a jurisdiction in cases without trenching upon the judiciaries of ​the states or passing the barrier which divides them. Every word in the constitution shows that that jurisdiction is so limited. There is no expression therein which can reach the jurisdiction of the state courts. The court repeats the idea that nothing contained in the constitution would justify the “withdrawal” of a judgment of a state court from the power of the federal appellate court. I retort the argument upon them by saying that what has never been granted need not to be “withdrawn.”
The supreme court seems to have triumphed over one of the defendant's counsel who had said that the construction contended for would operate a complete consolidation of the states, so far as respects the judicial power. They have conceded in effect, however, that a partial consolidation must ensue. A consolidation must be the inevitable result, to the extent of, and quoad the right of reversal, actually claimed. That partial consolidation will soon become total by destroying the checks in favor of the rights of the states deposited with the state judiciaries.
The court winds up its opinion on this part of the subject by saying that the words which import the power in question should not be “restricted” by a “forced construction,” and that those words justify that power. The words need, not be “restricted” to import a contrary construction. The words of the judicial article, taken singly, only relate to the judicial power of the United States, and to the supreme and inferior courts thereof. Not an iota of them applies to the state courts. But these words must not be taken singly. There are, also, other words in the constitution which must not be forgotten; words which deny to the general government and reserve to the states all powers not “delegated” to the former, by the constitution. ​
The act under which the plaintiff in error founds his claim to “protection” (in the language of the court) in this case, is not an act of the congress of the United States. It is an act of the corporation of the city of Washington. This act is indeed bottomed upon an act of congress permitting that corporation to establish lotteries; but the act of congress in itself is entirely inchoate and imperfect.
It only grants authority to the city to act in such a case and may be considered as a general letter of attorney. It is only the act of the corporation of the city which assumes the form and character of a specific law. If, therefore this act or ordinance, be a statute of the United States, it is yet not one made by the congress of the United States, but by the corporation of the city of Washington. It has been decided by the supreme court to be an act of the United States, in the case in question. It has been so decided by sustaining the jurisdiction of the court, which has no pretence of an existence, but on the ground that it is a statute of the United States and has been decided against in the state court. It has indeed been also decided by the court that it is not such a statute of the United States, as is competent to over-rule the state law with which it conflicts; but this is only for want of words denoting an intention that its tickets may be sold in the several states. Had these last words been inserted in the power of attorney granted by congress, and in the ordinance made in pursuance thereof, the opinion of the supreme court is full up to the point of giving relies against the law of Virginia as well as of sustaining its jurisdiction. Admitting that an act made perfect on this subject, and completed by the congress itself, and not by its deputy, would have this extensive effect, the act before us cannot have it. It is a principle emphatically ​applying to all legislatures that the powers delegated to them cannot be transferred to others. The confidence reposed in them is entirely personal. If there can be such a transference of power the congress might delegate it to a committee chosen by them, and that committee might again devolve it upon the member they have elected, as their chairman. Is the supreme court prepared to say that in such a case an act prepared and enacted by that chairman is a statute of the United States without the ratification of congress? I presume not. And yet such an act has claims to favor which the act before us has not. This committee and this chairman have all been elected as members of congress, by the people and the committee has been appointed by the house of representatives and their chairman appointed by them. But the corporate body of the city of Washington have not been elected into congress by the people of the United States, nor has congress elected or appointed the members of that body. They have been so appointed only by the people of the city and that for inferior and local purposes only. To call their act, then, a statute of the United States is to bind the whole people of the United States by the acts of a corporation elected by one city only. They were not as I have said, even appointed by congress. They were previously appointed by the district, and congress has only devolved the duty on them. To say therefore that this act is a statute of the United States, is more than saying that the aforementioned act of the committee or its chairman would be so. That committee holds its authority more directly from Congress and from the people than the corporation does, and is a part at least of those to whom the authority in question has been delegated. On this plain point I almost disdain to refer to authorities. I ​find however that Prof. Tucker, for the mere information of his students, has explicitly said that “congress cannot delegate the power of legislating for the District of Columbia to another body.” Admitting therefore that this act, if passed by congress, might have had the extensive operation now in question, yet being passed by the corporation aforesaid, it is not to be considered as a statute of the United States, even for the purpose of sustaining the court's jurisdiction It should have been scouted by the court from its view as it appears from the first enacting clause thereof, to have been only an act ordained by the corporation of the city of Washington.
But if this document had been enacted by the congress itself and the words had been supplied in it which the court thinks are only wanting, it could not have had the very extensive effect now contended for. Such an act could not have had this effect considered as an ordinary act of congress under the grant of legislative power to it, by the constitution because that grant does not carry with it a right to establish lotteries and would be, besides, at most, concurrent with the admitted powers reserved to the several States.
It could not have an effect within the territory of Virginia, which no act of congress as such, can have; which the acts of no state in the Union can have; and which could not be reciprocal in favor of Virginia, either in the territories of the other states, or in that of the district in question. Nor could it have that effect, considered merely as an act of the local legislature of the district. They were not the less so devolved because congress acted also in another character. Where two rights concur in the same man, or set of men, ​they are to be considered as if the man or men were different; and if the right of legislating for the district had been confided to three men by name, and their successors, the ambiguity which is supposed to exist in this case, would not have appeared. It is not indeed, expressly said that this function is involved on the congress, in auter droit: nor was it necessary. This will be inferred from the nature of the grant itself. The terms, ‘exclusive legislation,” used in the constitution on this subject, show that their legislation in this particular, is to be confined to the limits of the district. That is not a mere exclusive legislation over the district which soars as high as does the pretension now in question. The claim now set up is that of exclusive legislation also, in and over the territory of all the states! The congress would, in this case then go beyond its charter as the local legislature for the district. That charter does not authorize them to overrule the, at least, concurrent powers of the several states within their own territories. Far less can they devolve this great power upon the corporation of the city of Washington. I would here remark that if the act in question has not an operation, as the court has decided, beyond the limits of the district for want of adequate words to that effect, neither can the constitution have such operation, for want of similar words, in the clause in question. There is not only an omission of positive words, to convey this power, to the extent to which it is now claimed, but there are restrictive words to confine the operation of its laws, to the limits of the territory.
If we advert to that history, in relation to this district, to which the court is so fond of referring, we shall find that it gives no manner of countenance to its construction in the present instance. The territory in question, and the powers ​confided thereto grew out of particular circumstances and the jurisdiction reserved to the district was intended merely as a shield of defence to the deliberations of congress, and not as a sword of annoyance upon the rights of the states. We are told in The Federalist that a complete authority at the seat of government was necessary to secure the public authority from insult and its proceedings from interruption. In the convention we were told by Mr. Grayson that what originated the idea of exclusive legislation in the district was an insurrection in Philadelphia whereby congress was insulted, and for which they left the state. Mr. Madison said that without such exclusive legislation congress could not be guarded from insults. And again he says that congress should not carry on their deliberations under the control of any state; that it would impair the dignity and hazard the safety of congress; and that gentlemen could not have forgotten the disgraceful insult which congress received in Philadelphia. Mr. Marshall said that the power of legislation in the district is exclusive of the states, because it is expressed to be exclusive. Mr. Pendleton said that the power of exclusive legislation in the district was given in order to preserve the police of the place, and that congress may not be overawed and insulted. This great judge also, emphatically declared that this exclusive legislation could have no power “without the limits of the district.” The quotations show the express end and objects of the power, as well as the limits of the grant. That grant was intended as a shield of defence to the deliberations ​of congress, and not as a sword which should cut up and destroy the rights of the states. So the act of Virginia ceding this district to the United States gives up the exclusive jurisdiction and soil in that territory, but it cedes no right to interfere with the reserved territory of the commonwealth.
But if such had not been the avowed object of the grant in question; if the legislature is not to be limited by these circumstances, but on the contrary, if it had the most extensive commission of legislation ever confided to any country, I contend that its acts must be limited and local, in the particular in question, and could not have the effect to overthrow the authority of the several states within their respective limits. I maintain this doctrine upon the clearest principles of general law and upon the most unquestionable authorities. Before I refer to those authorities I must request your attention, fellow-citizens, to what I have said, to show that the states, taken in relation to the union, are only, as to some subjects, “parts of one whole,” and that as to everything else, they are entire and independent sovereignties. At least, however, this is the case, in relation to the petty district of Columbia. The great state of Virginia cannot well be “a part” of that small district, and of course, the authorities of Virginia cannot be subordinate to her authorities. Virginia is as independent of it and them, as she is of the small island of Malta; and as to the subjectin question, Virginia is to be considered in every sense, as a distinct and independent sovereignty.
We are told by Huberus in his chapter de conflictu legum, that the laws of every government have power only ​within its own limits; that their having any effect elsewhere is by courtesy of nations; that this is by the laws of nations and is only permitted so far as it does not occasion a prejudice to the rights of the other governments or their citizens. He adds, that in this, we are to consult mutual convenience and the tacit consent of different people. He further says that it is the law of the state, and this tacit consent, which gives effect to foreign laws without, however, any prejudice to its sovereignty or the rights of its citizens, and regarding the mutual convenience of the governments, that is the foundation of these rules. He says that if the law of the place is inconsistent with our law in these respects, it is reasonable that “we observe our own laws and not the foreign laws,” and that these cases form exceptions from the general rule, in favor of the lear loci, established by the consent of nations. He further states, as an illustration of his doctrine, that if, in a particular country, particular kinds of merchandise are prohibited to be sold there, a contract made in another country, to sell them there, is void. This is, in principle, the very case now before us, He further says, however, that the law of the place is imperious as to crimes, punishments and pardons; for that a crime committed in one country is a crime every where, and that the general convenience of nations is consulted by this rule.
Fonblanque taking up this passage, yields to it his unqualified approbation. He says that to give a binding force to a contract in another country, it must not violate the rights of persons not parties to it; that it must not violate a moral duty, or a right derived to a third person under the law of the state in which it is attempted to be enforced; for that in such a case “in tali conflictu-magis jus nostrum, quam jus alienum servemus.” All these principles ​emphatically apply to the case before us. The sovereignty of Virginia must be maintained, and the morals of her people must be preserved, by the power of her proper legislature. These great and important functions must not be yielded up by her to the petty corporation of the city of Washington.
Nothing contrary to this doctrine is to be inferred from the admitted power mentioned by the supreme court, or arresting in any state, felons fleeing from justice from the district of Columbia, or the forts and arsenals of the United States. In such case, the lex loci is inflexible, and the crime committed in the district remains a crime everywhere. The second clause of the second section of the fourth article of the constitution on this subject is only in affirmance of this principle of the laws of nations. Even without such a clause in the constitution that principle would probably prevail. The principles of the law of nations need not be re-enacted in any country but for greater caution. Nor is my general principle at all impugned by the indulgence granted to the lex loci in every country in relation to contracts. That law even in relation to contracts is, however as we have seen, subject to some restrictions. It must not even, as to contracts, contravene the salutary regulations of other states. The exception made as to contracts however, proves the rule.
It was foretold by the celebrated George Mason however, in the convention of Virginia that this power in favor of the ten mile square was a dangerous power, might be “unquestionably extended by implication to overthrow the rights of the states.” It has been so extended, and THAT by the most remote and unwarrantable implication. This has ​been done, by the decision which is now before us. That decision has made this small district a fulcrum from whence the most disastrous consequences will ensue. If it is not, like that of Archimedes, competent to move the earth, it is in the hands of the federal judges, at least competent to subvert and destroy the state governments.
Algernon Sidney.
* ↑ 1 Tuck. Bl. Appen, 852.
* ↑ Acts of Virg. of ’92, Resolution pa. 114.
* ↑ See the Acts of that session.
* ↑ Acts '92, pa. 114.
* ↑ Acts '98, pa. 42.
* ↑ 2 Fed. 238.
* ↑ Ib. 238.
* ↑ Co. Litt. 288b.
* ↑ 2 Line 297.
* ↑ Acts ’95 pa. 54.
* ↑ 3 Dallas 382.
* ↑ Debates 367, 388.
* ↑ Ib. 381.
* ↑ Ib. 417.
* ↑ Ib. 208.
* ↑ Ib. 403.
* ↑ Debates 371.
* ↑ 1 Federalist—preface and pa. 4.
* ↑ 2 Fed. 326-7,
* ↑ Cons.–Const. pa. 130.
* ↑ Ib. 22.
* ↑ Ib. 436.
* ↑ Cons. Con't. pa. 43.
* ↑ 1 Tuck. Append 278.
* ↑ Vol. 2. No. 48.
* ↑ Debates pa. 308.
* ↑ Ib. 397.
* ↑ Ib. 71.
* ↑ Ib. 298.
* ↑ Ib. 342.
* ↑ 1 Rev. Co., pa 45
* ↑ Praetectiones, Vol. 2. b. 1. let. 3.