# On the Lottery Decision, No. 3

Part 3 of a 5 part series published in the Richmond Enquirer, of Virginia Opposition to Chief Justice Marshall , June 1 1821
(Richmond Enquirer, June 1, 1821.) ON THE LOTTERY DECISION.
No. 3.
To the People of the United States:
The supreme court sensible, fellow citizens, that a jurisdiction was not given to it in its original character, as to this case between a state and one of its own citizens, by the specification contained in the third article of the constitution, of the cases in which a jurisdiction was granted to the federal courts over the several states, seeks to remedy the deficiency. It seeks to supply the want of such specification as to this case, and to give the court jurisdiction of it on its appellate side, under the general phrase contained in that clause, which extends the judicial power to “all cases arising under the constitution and laws of the United States.” The first remark I have to make upon this position is, that if a jurisdiction in this very delicate case, between a state and its own citizens, had been intended to be given, when certainly there existed no necessity for it, the specification in that article would have been expressly enlarged, so as to embrace it. Another remark is that it is not a natural construction to reach a case by the appellate jurisdiction of the court, which was withheld from it in its original character The difficulty is increased by having to step over the barrier erected between the two governments, and to correct the judgments rendered in another government. The general words in question presuppose cases in which there are proper parties, and also, if brought up by way of appeal, that they should come from a proper court. These general words may be otherwise abundantly satisfied, and I repeat the remark that they are not, therefore, to be extended to cases surrounded on all sides with insurmountable difficulties. The court says, that these general words give an appellate jurisdiction, “whoever may be the parties”, but in order to reach this case, they must add the words, “or from whatever court, whether of the union or of a particular state, the cause may have been brought up.” The proposition is laid down infinitely too large by the court, and it is certainly not true, it at all, to the extent to which they have carried it. That high court itself, would not, I presume, entertain an appeal in a case in which they themselves were parties, nor a case in which the Emperor of Russia sued in the person of his ambassador, was a party. Nor would it, I apprehend, entertain an appeal brought into it from one of the courts of the Russian Empire, even although the constitution of the United States had, therein, come in question. It is entirely a new idea that persons may be legal parties, or otherwise, and a jurisdiction of the case entertained, or not, according to the dignity of the laws or documents, under which they claim. That is entirely a posterior enquiry. These documents or laws are never looked at or considered, until the question of parties is disposed of. The question of parties is a matter in abatement, and questionable in the first instance: those which arise under the constitution, &c., are matters in bar, and are reserved for a posterior enquiry. The only way of getting over these difficulties is to understand this general provision, if it applies at all, as at least requiring proper and legal parties and that the appeal should come from the proper court.
This indifference as to the proper and legal parties, in a court of justice, seems an entire anomaly in the history of judicial proceedings. It is a novelty even in the supreme court itself. Many cases may be found in which causes have been stricken from the docket of that court, for want of proper and legal parties. In the case of Emory vs. Greenough (1) a cause was struck off the docket because the parties were not shown to be citizens of different states. So in the case of Wise vs The Columbia Turnpike (2) it was held that the supreme court had no jurisdiction in the case, because the sum awarded was under five hundred dollars. Again, it has been held in the supreme court, that no writ of error lies to it from the general court of the North Western territory (3). These cases abundantly show that in former times that court not only required the necessary parties to give it jurisdiction, but also that the sum should be sufficient, and that the appeal should come from a proper court. As in the case before us two of these essential ingredients have been dispensed with, I do not see how we can stickle for the third. I see nothing to impede this high court under the latitude they have taken, from entertaining an appeal where the amount of the judgment is only fifty dollars. Having passed the Rubicon, as to the parties and the court, they may well go thus far. It is only extending their power another grade, by this most remote and distant implication.
The court proceeds to say, that the clause aforesaid ex- tends its appellate jurisdiction, to all the cases described, without making in its terms “any exception” whatsoever in relation to the condition of the party, and that such “exception” is not to be applied against the “express words” of the article. What these express words mean, and how they ought to be deemed restricted, I have already endeavored to show. They presuppose all necessary parties to the suit, and hence an exception becomes unnecessary. It was not necessary to make an exception from a grant, which, as to the point before us, in fact carried nothing.
The supreme court admits that the specification, in the second section of the third article of the constitution, does not extend to this case of a contest between a state and its own citizens; nor can an appellate jurisdiction be fairly inferred. If the jurisdiction, either original or appellate, had been intended to have been given in this delicate case, would it not have been provided for, and that in the first instance? The omission of this stronger or superior case shows that it was not intended to be given, under the undoubted rule of construction I have adverted to. If a cause of this kind is excluded from the original jurisdiction of the court, it can derive no aid from a matter which only arises in its progress, and on the merits. It is altogether casual and contingent, even upon the showing of the court itself, whether the cause will ever admit of an appeal or not.
This last idea is in entire unison with the famous provisions in the twenty-fifth section of the judicial act of the United States; and accordingly, that section has received the decided approbation of the court. That section exhibits the remarkable phenomenon, of the judgment of the supreme court of a state, being held to be final or not, according as it is rendered on one or the other side of a given question. It is founded upon a most unwarrantable jealousy of the state judiciaries, and finds nothing to warrant it in the constitution. This position has been justly exposed in all its various aspects, by the court of appeals of Virginia, in the case of Hunter vs. Martin (4); and to that decision upon this point, I beg leave to refer.
In deducing the appellate jurisdiction in this case, under the general words before mentioned, the general proposition that a state cannot be sued but by its own consent, is admitted by the supreme court. I also admit with them, that that consent may be given by a general clause in the constitution; and if that consent, as applied to this case, can be inferred from a just construction of the general clause in question, then the states have submitted to be sued. There is no particular and express delegation of the power in this case, and the construction adopted by the court, is not only founded upon remote implication, but is confronted by the insuperable difficulties already mentioned. I shall only add on this part of the subject, that if the jurisdiction is not given in this case expressly, or by fair and necessary implication, the power is retained by the states, and the decision of the state court is, consequently final.
The court goes on to say, that if by a general act, the state has consented to be sued, it has parted with its sovereign right, of judging of its own pretensions, to that tribunal, in whose impartiality it confides. The state has certainly never forgotten that this high power might be abused, by that tribunal, and its rightful powers wrested from it. Nor did it ever mean to give up the check provided for it by the constitution, and which I have already endeavored to sustain. The position here laid down by the court would lead to passive obedience and non-resistance by the states until their confederacy was completely overthrown and a consolidated government erected.
The court seems to consider that the constitution adopted by the “American people,” expected that large portions of the sovereignty of the states would be given up. On this I have no other remark to make, than that as much of that sovereignty is given up, as has been given up, expressly, or by fair and necessary implication. All other powers are retained by the states and the people. As to the term “American people” used by the court, it seems to savor too much of consolidation. The constitution was adopted by them, not as one people, but by the several states, by the people thereof, respectively. In support of this idea I will refer to The Federalist, and to Madison's celebrated report, in almost every page. I will refer also to the Debates in the Convention of Virginia. The difference is not unimportant. In the last view, the idea of a confederation of the states is retained, and a check upon the proceedings of the other government is made more manifest. The expression now used seems to pave the way for the consolidation, which must flow from the principles now established.
The court justifies its supremacy in all cases, in which “it is empowered” to act by the supremacy of the constitution and laws of the United States. I do not object to this passage, qualified as it is by the court, and reserving to the states the checks existing against an undue assumption of power. The supremacy yielded by the constitution, is to that constitution itself, and the laws duly made under it, but does not extend to unwarranted expositions thereof, by the courts of one of the contracting parties.
The court very adroitly hurries over a very important distinction, in relation to the powers of the two contracting parties. By that distinction the states retain all of the powers which they have not parted from, whereas the general government has only such as have been granted, to the extent to which they have been granted. The term “supremacy” then, with which the court is so much enamored, dwindles into that of granted powers; and these gentlemen must come down from their high pretensions. A government which is only entrusted with a few powers, and is limited in acting upon those powers, by the expression of the constitution, as to such as are granted, and by the degree of the necessity as to such as are implied, can scarcely be said to be supreme.
The court is fond on this, and all other occasions, of vaunting that its powers are supreme. That court does not possess such powers. The whole government has them not. I take the bolder ground, and say, that the people themselves have them not. The sovereignty of even the people themselves is limited by reason and justice. These are paramount, not only to the text of written constitutions but even to the original power of the people. The people themselves, associated for the common good, cannot subvert that good. They cannot violate those great principles which soar above all constitutions, and are paramount to the rightful power of the people themselves. If therefore, the people themselves, have not this transcendent and unlimited power, neither have the messieurs judges. Not even these high characters, can justly deprive our people of their chartered rights, or violate the sacred duty imposed on the state governments, of preserving the morals of their people. It is not in their power to let loose a system of gambling among them.
To this “supreme government,” the court says, the most ample powers are granted, and they refer to the preamble of the constitution, to show how ample these powers are. But the people, have also said, by the 10th amendment to the constitution, that all powers which are not granted by the states are retained. Now it is a rule of construction, applying to all parts and contracts whatsoever, that in interpreting them, you are to take into consideration all their parts. As to this preamble, you are to narrow the general words therein used by the special grants contained in the instrument, and under the influence of the amendment just mentioned. You are specially, to narrow the general words of the preamble, which is, in fact, no part of a statute but only a key for the exposition thereof. The construction arising from the preamble only, would be so broad as to sweep away all the powers of the states, and this ground of construction was formerly given up. Nothing can preserve those powers but a steady adherence to the principle established by that amendment.
The general words of the preamble to the constitution, now relied on by the court, are introductory only, and not decretal (5). They only show what were the ends in view, not what are the actual provisions of the constitution. They have been universally given up ever since the decease of the famous sedition law; and the reasons on which they have been abandoned, are entirely unanswerable (6). That cause must be, indeed, desperate, which can again call up this odious and exploded ground of claim. If subscribed to, it at one blow destroys all the limitations contained in the constitution.
In answer to so much of the opinion as repeats that the jurisdiction of the supreme court extends to all cases of “every description” which arise under the constitution and laws of the United States, I must refer to my former remarks, as to the exceptions under which it is to be taken. If it was clear that these words comprehended a controversy also between a state and its own citizens, then that jurisdiction would pass, unless it were again restricted by a particular exception. But those words are not so extensive. They do not reach this cause, because of the delicate nature of the jurisdiction; the want of a necessity for it; and by be. ing omitted in the particular specification, in this case, the principle of “all and some” emphatically applies. All powers are considered as given, where some are specifically enumerated. This is, in various instances, the very genius of the American constitution.
As to its being said, by the court that the general words, aforesaid, also embrace this case, that is the very thing which is to be proved. The case cannot come before the court, unless there be proper parties to the controversy, and a sovereign state cannot be made a party in the courts of another state without its consent. The authorities already referred to on this subject are quite conclusive. In a case of doubtful construction, this irresponsibility of the states to another jurisdiction should turn the scale and exclude the cognizance in question.
While it is admitted by the court, that a citizen cannot sue his state in the federal court, where his case depends upon the constitution or laws of such state, it is averred that the case is otherwise, where it depends on the constitution or laws of the United States. The ground of difference is supposed to be a want of impartiality in the state courts in relation to the latter. That idea, is however, reprobated by the omission to provide for such suits, in the supreme court in its original character. It is only by way of appeal that the pretension now in question is set up. Iłut if the ground of that pretension has a real existance, this case ought to have been included with the others, in the specification contained in the third article of the Constitution. I will here remark, that while controversies between two states ought not to be decided in the courts of either, and while it may be plausibly urged that the courts of a state may not be impartial in cases existing between its and citizens of another state, no such idea has been ever entertained in relation to its own citizens. I shall touch this point again, hereafter. At present I shall only again remark, that the ground of the pretension has no existence, for if it had original as well as appellate powers, jurisdiction would have been extended to it.
The court has claimed the extensive jurisdiction now in question on the principle, that the judicial power, in “every well-constituted government” should be co-extensive with that which is legislative. In a government of general powers this principle may perhaps be true. So it may be that our government is not “well-constituted” in this particular. If so, an amendment of the constitution is the correct remedy. But ours is not a government of general laws. All the departments of that government are restricted by the actual limitation of their powers. Congress, by the constitution, has no other legislative powers than those which are thereby granted, and the extent of the judicial powers is to be measured by the actual grant contained in the third article. This idea of the supreme court might deserve consideration in another forum. But in professing to decide what the constitution actually is, this idea is improper and inapplicable. A construction which is commensurate with the judicial power actually granted by the constitution, notwithstanding the general words aforesaid, and which can be otherwise abundantly satisfied, cannot be said to be, in the language of the court. “contracted.”
The court has foreseen great mischiefs, resulting from a denial of this jurisdiction. It is said, that the government and its laws would be prostrated at the feet of the several states. This argument turns in a circle. If, on the contrary, there is no check existing, on the part of the states, or rather on the part of the constitution, as provided for in favor of the states, all the states in the Union might be demolished by the supreme court. It is just as probable that the government of the United States will usurp more than its due share of power, as that the state will withhold what is its due. It is just as probable that unconstitutional laws will be executed to the injury of the states, as that those which are constitutional will be impeded or resisted. If the judgments of the state courts cannot be corrected by those of the courts of the United States, some inconveniences in some cases may ensue to the general government; but if they can, great oppression may arise to the states, and their laws and liberties be swept away. If each party possesses a veto upon the acts of the other, it may cause some delay and even an appeal to their common superior, the people. This, however, is better than that absolute submission by one part, and absolute despotism by the other, which is death to the existence of liberty. Such is not the genius of a federal government, where each party has its reciprocal rights. It is the blind and absolute despotism which exists in an army, or is exercised by a tyrant over his slaves. It is as well, if the court pleases, that the course of the general government should be arrested for a season, as that the rights of the states should be forever swept away.
The supreme court pursuing this idea, does not deny that confidence must be reposed; but they contend that it should only be reposed in them. If the states have sometimes erred in refusing to the general government its due powers granted by the constitution, it has only been in detail and without any concert between them. They have on the contrary, rescued the country from the greatest calamities, as for example, by the glorious revolution of 1801. Those who deprecate such insurrections, and bow the neck to arbitrary power will do well to nip the right of opposition in the bud. To them the doctrine of the supreme court is very convenient. Obsta principiis is their motto. The only difference between us, is that I would extend it also to the usurpations of the general government. If confidence must be reposed, let it be divided, and be also under the limitations of the constitution. The tyrannies and abuses of the general government have far exceeded those of the state, or any which can be expected from them.
The supreme court have not only set their faces against extreme acts of opposition on the part of the states but also against all the “gradations” of that opposition. As they have not condescended to draw the line upon this subject, it may in their discretion, be extended to all opposition whatsoever. The infamous sedition law may be again revived upon us by construction, and in a new shape. The uncertainty as to what may or may not be, an allowable degree of opposition, will work a complete silence and acquiescence on the part of the people, and thus, the despotism of the “supreme government,” and of its courts, will be absolute and complete.
The court sees great evils resulting from the different constructions which may probably be adopted by the several states. This results from our being a congeries of free and independent governments; from our having the happiness to form a federal republic. The only remedy for it is by wiping out the state governments altogether and establishing one great and consolidated empire. This diversity of opinion and of decision is better than an uniformity, which may be grinding and deadly to our liberties. It is better that liberty and state-rights should be maintained in some states, than no where, It is better that the Legislature of Virginia should solemnly protest against federal laws invading her laws in favor of the morality of her people and against the decisions upon them, than that they should be trampled under foot in silence, by the federal authorities. It is better that her courts should maintain their true and exclusive jurisdiction, as was firmly and constitutionally done, in the case Hunter against Martin, than that the boundary lines of the states should be forever obliterated, and that great commonwealth considered only as a district of the United States and her courts as only inferior federal courts.
The uniformity of decision with which the supreme court seems so much enamoured, may have its advantages, but even they may be purchased too dearly. They ought not to be purchased by dispensing with the necessary parties to all legal controversies, nor by breaking in upon the judicial independence of other states. They ought not to be essayed in cases in which the supreme court can neither enforce its judgments in the regular way, nor even compel a copy of the record upon the writ of error. In going in quest of this uniformity, the court should not shut its eyes upon those impassable barriers which exist, and should ever be maintained between the general and state governments. As for this uniformity however, too much stress seems to have been placed upon it. Uniformity of decision is not so desirable as rectitude of decision. The former is a bauble when compared to the latter. The former suits the meridian of a despotic; the latter, that of a free government.
The court complains of penalties, which, it says, may be unjustly inflicted by means of the state authorities. It is incident to all penal laws, to be enforced by means of penalties. If these laws are just and valid, the penalties enforcing them are not to be complained of. Of the validity of the powers of the states, touching their penal laws, the supreme court are not the exclusive judges. They cannot he so, unless in a contest for powers, under a compact, you admit that one of the parties is to construe the compact as he pleases.
The supreme court next supposes, that the legislatures and people of the states will imbibe improper prejudices against the general government; that the state judiciaries may not be exempt therefrom, and consequently, will not form perfectly impartial tribunals. Why should these prejudices exist in any of those parties against the government of their own creation? If these prejudices however do exist on the part of the people, that is, of the whole people, they are probably honest prejudices, and are, therefore, not to be objected to. If on the contrary these prejudices are confined to the state judiciaries, neither will the federal judges be exempt from their prejudices. Their prejudices will be on the side of power and of “the government which feeds them.” Let FACTS speak upon this subject. Did not the federal judges lend themselves as willing instruments, to a corrupt congress to enforce the infamous sedition law? Did not they, under that law, and in the very teeth of the first amendment to the constitution, incarcerate several of our citizens and break down entirely the freedom of the press? Has not this very court in this case manifested its willingness to extend the powers of the corporation of the city of Washington into the heart of the states, whenever congress shall give to its ordinances that form, and that extension; and this to the total overthrow of the reserved and salutary powers of the several states? How does it happen, but from these prejudices, that republican men, placed on the bench of the supreme court, and who had passed the ordeal of Thomas Jefferson, have abandoned their former politics? Have they not rebelled against the principles of the glorious revolution of 1799? How else is it that they also go all lengths with the ultra-federal leader who is at the head of their court? That leader is honorably distingushed from you messieurs judges. He is true to his former politics. He has even pushed them to an extreme never until now anticipated. He must be equally delighted and surprised to find his Republican brothers going with him. How is it, but from these prejudices, that they go with him, not only as to the results of his opinions, but as to all the points and positions contained in the most lengthy, artful and alarming opinions? It would be a miracle indeed, if these former republicans did actually concur, in all points in these outrageous doctrines. This is not the case. The federalists themselves, in so long a journey would dissent and differ in some of these multifarious and daring positions. How else is it that these judges have abandoned the practice of giving seriatim opinions? a practice so essential to their integrity and independence. If the correct opinion of courts form proper subjects of impeachments—and God forbid they should not! this union of opinion whittles down the responsibility to nothing. Every corrupt judge in such a case becomes a witness for every other. The prejudice which the supreme court have without evidence imputed to the state judiciaries, have also, fellow-citizens, the most unbounded sway among themselves. They, also, are frail and fallible men. They have agreed to boggle at nothing, which is to advance the grand empire and give “powers to the government that feeds them.”
The court has said that in “many” states the judges are dependent for “office”, and “salary”, on the will of the legislature, and that the constitution of the United States has furnished no security against the universal extension of this principle. It has also said that the constitution could not have intended, that the construction of itself, and of the laws of the United States should be confided to judges who might not be independent and impartial. It is not known or admitted that the judges in any of the states, are dependent on the mere will of the legislatures, for the tenure of their offices; though in one or two of the states, these offices are only held for limited periods. A reference to the constitution of the several states will show that the judges in seven of them hold their offices during good behavior; that in four of them they hold by the same tenure, but subject to removal, perhaps wisely so, on the application of two thirds of both branches of the legislature; and that in two of them, they hold for limited terms of years. It is only perhaps in the small state of Rhode Island, under her royal charter that the judges depend upon the legislature for the tenure of their offices. As to the newly erected states, I have not their constitutions, but it is believed that they universally accord in the above principle. How then could this high court undertake to say that the judiciaries of many of the States were dependent upon their legislatures for the tenure of their offices? The foregoing specification, which I am sure will be found accurate, falsifies that assertion. It is in utter collision with it. As for “salaries”, most of the judiciaries have a good security on that subject. The constitution of Virginia secures to her judges, “fixed and adequate salaries,” and below this mark it is not in the power of the legislature to go. It would, perhaps, have been better, as in the case of the Governor, (Con. Virg, art. 9.) to have given “adequate but moderate salaries”; and also to have curtailed the power now possessed by both governments to increase these salaries at pleasure. It is well known that moderation in salaries, as in habits of living, is the best preservative of virtue: and the fifteenth article of the bill of rights of Virginia, which must have been given by divine inspiration, and ought to be written in letters of gold,—declares,-‘‘That no free government, or the blessing of liberty, can be preserved to any people, but by a firm adherence to justice, moderation, temperance, FRUGALITY, and virtue, and by frequent recurrence to fundamental principles.” The power to raise salaries, ad libitum, is not only possessed by the federal legislature, but has been very liberally exercised, in favor of the supreme court. It has been so exercised, in utter contempt of the principle contained in the golden article just quoted. It was very lately exercised by Congress, and the salaries of the supreme judges increased a thousand dollars per annum each: a sum fully equal to the whole salaries of judges in some of the states. This sum, added to the ample salaries they had before, entirely withdraws their case from the principle just stated. These salaries are now some where about five thousand dollars each and they have consequently ceased to be “moderate." The addition in question was certainly not intended as a douceur to those judges, for opinions favorable to the powers of the general government; it was however, very unfortunately timed. It was made not only when an opinion was generally becoming to prevail, that the jurisdiction of the supreme court was already too great, and should be lessened, but also when a contest for powers was actually pending in the supreme courts between the two governments. I cannot for a moment suppose that that augmentation had any, the least influence upon that high tribunal; but it is certain that their opinion, which was delivered about that time, gives the clear victory to the general government. It also degraded the state governments to a pitch never before anticipated. One of these judges however, is entitled to a more particular notice. This seasonable increase of salary, probably prevented his being a very respectable collector at one of our important seaport towns (7). He has been, possibly, grateful to his benefactors for this very seasonable lift. He has been recently quite testy and peevish in that high court, in relation to what he is pleased to call “the encroaching disposition of the states” (8). On this particular point we find the venerable Mr. Pendleton saying in the Convention of Virginia, that he wished the restraint in the constitution had been extended to the increase, as well as diminution of the judges salaries (9). Mr. Grayson also said (10) that augmentation of salary is the only method that can be taken to corrupt a judge; that he is to be corrupted by the hopes of reward; and that common decency would prevent lessening his salary. He adds that throughout the page of history you will find the corruption of the judges to have arisen from the principle of the hope of reward, and that this is left open, in the federal constitution.
On the part of the states no such degrading occurrences have taken place within my knowledge. I speak principally of Virginia, but I believe I may extend the remark to all the other states. If there has been a concert of thinking and acting between the legislature and judiciary of Virginia, it was in cases in which no money nor salary was concerned. It was when the just rights of the states and their judiciaries had been grossly violated. The judiciary of that state had the virtue and the firmness to protest against encroachments on its powers; and she has been supported by the almost unanimous concurrence of the legislature on great consideration, by the executive, and also by the people. It was a disinterested and manly stand by them all, in behalf of sacred rights, reserved to the states by the constitution.
If the foregoing facts be true as to the tenure and salaries of the state judges, the constitution of the United States, need not have made any provision, in relation to the independence of those tribunals. No such provision was necessary. The evils apprehended by the supreme court, are only imaginary. They have no real existence, nor can they ever be reasonably apprehended. That defect, which the supreme court is pleased, without authority, to say existed in “many” states, exists in fact in No state, save only, perhaps, in the small state of Rhode Island. The constitution needed not, therefore, to make a provision on the subject. There is no provision more fundamental with all the American people than that their judges should hold their offices by permanent tenure and receive fixed and adequate salaries.
It is the object of the supreme court, in this part of its opinion, to elevate their own independence, at the expense of that of the state judiciaries. That preference will be found to be a perfect nonentity. Where was that proud independence when these high judges lent their aid to a corrupt congress to extirpate the liberty of the press? The American people have spoken in a voice of thunder on that subject. Their judgments in those cases have been consigned to a merited infamy. It was only through the moderation and mercy of the republicans that these corrupt judges escaped the fate of the infamous Jeffries. Do these lofty and high-minded judges plume themselves upon the mode of their appointment? They hold their offices by the breath of a single man; and he not having a personal knowledge of them, must depend for information respecting them upon his ministers and favorites. They it is who substantially appoint these judges, and the president only appoints them in point of form.
The judges of the states, on the contrary, (I speak particularly of Virginia) are elected by the joint ballot of both houses of the General Assembly. In this pure and honorable mode of appointment, there is no room or opportunity for appliances, or servilities of any description. The man who is so elected must be known to his fellow-citizens and must possess their confidence.
As the supreme court has imputed to the state judiciaries, an undue subserviency to the wishes and views of their legislatures, and have in some measure invited a comparison on that subject, I will endeaver to gratify them. I confine myself to the operations in Virginia, as to which state only, I have the information which is requisite on the subject. In the year 1788, all the judges of Virginia, declined and refused to execute a law establishing district courts, which had been passed by the preceding legislature on the ground of its being unconstitutional. (See their memorial to the legislature on the subject.) The legislature acquiesced in their opposition, and did away with the cause of their objection, by a subsequent act. In the year 1792 (see the reported case of Kemper vs. Hawkins,) the general court of Virginia declined to execute the power of granting injunctions, confided to it by the legislature. They unanimously declined this duty on the ground that the law was unconstitutional; and the provision in question was repealed. In the last session of the legislature one of the judges of the court of appeals, in a letter written to the governor, with the concurrence of ALL his brother judges declined to discharge executive duties cast on him, by a previous law, in relation to the literary fund: and the legislature new-modelled the board, and yielded to the objection of the judges. These instances (and others perhaps might be added) show no servility on the part of the judiciary in relation to the legislature, and the facts are equally honorable to the legislature. All these several laws thus declined to be executed, were favorite laws with the legislature. Yet that consideration could not prevail with an independent judiciary. So, that judiciary has shown itself to be equally firm in relation to the federal authorities. The court of appeals of Virginia, on great and solemn consideration in the case of Hunter vs. Martin, unanimously, declined obedience to the twenty-fifth section of the judicial act of the United States, and to a judgment of the supreme court enforcing it. As that high court itself had done in relation to another part of that act, in the case of Marbury vs. Madison, they unanimously declared that section to be unconstitutional. It reprobated a judgment of the supreme court which considered the court of appeals as an inferior federal court and undertook to reverse its judgment. The reasons of the court of appeals are before the public, and it is believed, cannot be answered. Did the court in this instance show a dependence on the General Government? No! the oath they had also taken to support the constitution, and their independence as judges, forbade it. Notwithstanding the superior allurements on the side of the General Government, these faithful officers remained true to the constitution. They have taken sides with neither government, but have endeavored in all cases, and under all circumstances, to be guided only by the constitution. None of these judges have been impeached for high crimes and misdemeanors, and only found “not guilty.” None of them have gone in quest of the highest salaries. “The administration of the law” in their hands, has never been complained of. If these facts do not rescue the state judges from the unjust imputation thus cast upon them by the supreme court neither could the testimony of one coming from the dead.
I will beg leave to close this disgusting but necessary part of this examination, by adverting to a position advanced by the court, in another part of its opinion. That high tribunal has permitted itself to insinuate. that not only the courts of the states, but even “those States themselves” may be influenced in their expositions of the constitution, by “motives which may not be fairly avowed.” In regard to an imputation so broad, so general, and permit me to add, so ILLIBERAL, I will ask how comes it that the supreme court alone is pure and immaculate? If the contagion is so general as they insinuated, how have they escaped its baneful effects? or are their prejudices all the other way? Let the facts I have stated on this subject answer that question. In regard to purity of motives, and of character, at least, the humble functionaries of the states need not decline a comparison even with these exalted judges.
Algernon Sidney.
* (1) 3 Dall. 370.
* (2) 7 Cranch 276.
* (3) Whoat. Dig. 181.
* (4) 4. Munf.
* (5) Cons. cons 165.
* (6) See Federalist and Mad. Report.
* (7) See his own very singular letter.
* (8) This fact happened at the last term.
* (9) Debates 368.
* (10) Ib. 403.
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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