On the Lottery Decision, No. 1

by Spencer Roane

On the Lottery Decision, No. 1

To the people of the United States:

I beg leave to address you, fellow-citizens, on the subject of the late decision of the Supreme Court, in the case of Cohens against the State of Virginia I address you on that great subject, from no light motives whatsoever. Far less have I any vain desire, to array myself againt the very able penman, by whom that opinion was composed. I approach you, on the contrary, with a heavy heart. I address you under a solemn conviction, that the liberties and constitution of our country are endangered—deeply and vitally endangered, by the fatal effects of that decision.

Drawn towards you, fellow-citizens, by every tie which can attach man to man; deeply penetrated by all those fond endearments, which bind the affections of a man to his native country, ought I to sit silent under such circumstances? Ought I not to raise my feeble voice, in behalf of liberties of myself and my childrens' children, to the latest generation? Ought I not to move when your liberties and those of your latest posterity are in peril?

I trust that my address to you, fellow-citizens, will not be deemed presumptuous. I address myself to you, because you, alone, are able to afford relief. I address you, in your primary and sovereign character: and I pray you, in that character, to correct the proceedings of your subordinate agents:—I address you, also, in your peaceful character. I want from you, no insurrections, no rebellions, no revolutions. It would be almost a perversion of terms, to ask the sovereign people, to rebel against the acts of their inferior agents. I ask from you no revolution, but what consists in the preservation of an excellent constitution. I require from you no insurrection, but that of a frequent recurrence to fundamental principles.

My appeal to you, I trust, will not be made in vain. You are the same American people, who, twenty years ago put down an infamous sedition-law, by the mere force of public opinion. Yes! and you also put down, there with, the equally infamous judgments of the federal courts, by which that statute was enforced. You put down, with indignation, and with scorn, those unjust judgments, which had fined and imprisoned divers of our citizens, for exercising the sacred rights of speaking and writing, guaranteed to them by the constitution. Where is now that act, and where are now those judgments? Crucified, dead and buried. They have descended together, to the tomb of the Capulets, and peace be to their names. I am sure that my appeal to you will not be heard with indifference. You are the descendents of that magnanimous people, who, in our mother country, corrected the unanimous judgment, of twelve high and ermined judges, in the famous case of ship-money. That judgment had asserted the right of the King, to levy taxes without the consent of parliament and, thus, had put the axe to the root of the constitution of England. That judgment resisted by the firmness and virtue of the illustrious Hampden, eventuated in this:—that some of those judges changed their opinions, others were impeached, and the judgment itself, was ultimately cancelled by both Houses of the English parliament as well as by the voice of the English people. It was unanimously declared by both houses to be, contrary to the constitution, subversive of the liberties of the people, and contrary to the petition of rights.(1)

The judgment now before us, will not be less disastrous, in its consequences, than any of these memorable judgments. It completely negatives the idea, that the American States have a real existence, or are to be considered, in any sense, as sovereign and independent States. It does this by claiming a right to reverse the decisions of the highest judicial tribunals of those states. That state is a non-entity, as a sovereign power, the decisions of whose courts are subjected to such a revision. It is an anomaly in the science of government, that the courts of one independent government, are to control and reverse the judgments of the courts of another. The barriers and boundaries between the powers of two sovereign and independent governments, are so high and so strong, as to defy the jurisdiction, justly claimed by a superior court, over the judgments of such as are inferior. This decision also reprobates the idea that our system of government, is a confederation of free states. That is no federal republic, in which one of the parties to the compact, claims the exclusive right to pass finally upon the chartered rights of another. In such a government there is no common arbiter of their rights but the people. If this power of decision is once conceded to either party, the equilibrium established by the constitution is destroyed, and the compact exists thereafter, but in name. This decison also claims the right, to amend the federal constitution, at the mere will and pleasure of the supreme court. The constitution is not the less changed or amended because it is done by construction, and in the form of a decree or judgment. In point of substance, its effect is the same; and this construction becomes a part of the constitution, or of the fundamental laws. It becomes so, because it is not in the power of the ordinary legislature to alter or repeal it. This construction defies all power, but that of the people, in their primary and original character, although, in effect, it entirely changes the nature of our government. This assumption of power is the less excusable, too, fellow-citizens, because no government under Heaven, has provided so amply as ours, for necessary amendments of the constitution, by the legitimate power of the people. This decision also touches the sovereignty of the states, in another very tender point. It nullifies a statute made by one of them, to promote the morality of her people. It does this at the instance of the petty corporation of the city of Washington, and the statute of Virginia is made to yield, to an ordinance of the Common II all of that city. It is so made to yield by means of the most remote and unwarrantable implication. This decision does not admit the competency of the courts of the states, to enforce their own penal-laws, against their own offending citizens. It does not admit them to be impartial, in deciding the controversies of the states, with their own citizens. Nor does it allow them to enforce an act, made to promote the morality of their people. Few measures are more promotive of that end, than the abolition of gambling—and that cannot be prohibited but by penalties, like the one in question. This decision also claims the right, to bring the state government before the courts, without their consent, and without, consequently, having the necessary parties. It claims to do this, in all cases whatsoever: or which is nearly the same thing, in all cases in which the constitution, laws, and treaties of the United States may come in question. It claims that right also, at the suit of a citizen of that state: a right utterly disclaimed by our conventions, and primiaeval legislatures. It claims this right in the teeth of the eleventh amendment to the constitution, and of the enumeration contained in the third article of the original constitution, which specified the cases in which the states consented to be sued, in the federal court, and in which specification, the present case is not included. It claims it, also, in defiance of the tenth amendment to the constitution, which provides, that powers not delegated to the United States by the constitution, shall be deemed to be reserved to the several states. To “cap the climax” of this absurd picture, the court has sanctioned the right of the legislature of the district of Columbia, to act by deputy; and has exalted to the dignity of a statute of the United States an ordinance of the Common Hall of the city of Washington. It has given a force to that ordinance in every State in the Union, which is to supercede and repeal their most undoubted and salutary laws: a power, which a statute of the Congress of the United States has not, which the acts of no State in the Union have; and which is not reciprocal in favor of Virginia, either within the territory of this favored district, or that of any other State in the Union.

This most monstrous and unexampled decision, is without the apologies which may be offered for the judgments of which I have spoken. The judgments upon the sedition law, might, in some degree, be paliated, by being bottomed upon an act of the federal legislature; as that in the case of ship-money, was expressly predicated upon the supposed necessities of the kingdom. But the decision before us, finds no support from any statute; and is adopted in the most prosperous epoch of our existence, as a nation. It professes to give a true exposition of the constitution, and does not deign to seek a shelter under the pressure of any circumstances. It can only be accounted for, from that love of power, which all history informs us infects and corrupts all who possess it, and from which even the high and ermined judges, themselves, are not exempted.

It is of no account, that the judgment in question was rendered for the state of Virginia. That great and opulent state is, indeed, permitted to retain the paltry sum of one hundred dollars; but the permission is only grounded, if I may so say, upon the defectiveness of the pleadings. Whenever the actual provisions of an act of Congress, and of the ordinance consequent thereon, shall show an intention that they should operate within the territories of the states, a different decision would be given. In that case, the supremacy of such act or ordinance, would be asserted, and the most salutary indubitable provisions of the laws of the states must succomb. It is impossible that the people of any state can be thus gulled, by any decision. The case is, most emphatically, decided against them. It is so decided on grounds and principles which go the full length of destroying the state governments altogether and establishing on their ruins, one great, national, and consolidated government.

Before I go into this subject more particularly, I must be permitted again to remark upon the pretentions—allow me to say the extravagant pretensions,—of those, by whom the judgment before us has been rendered. While in other countries the judiciary has been said to be the weakest of the several departments of government, and has been limited to the mere decision of the causes brought before it, ours has aspired to a far more elevated function. It has claimed the right not only to control the operations of the co-ordinate department of its own government, but also to settle, exclusively, as aforesaid, the chartered rights of the other parties to the compact. Being one, only, of the departments of the general government, it has claimed and exercised a right, not possessed by them all—that of judging, definitely, in its own cause, in the case of powers contested between the parties to the compact. It has claimed the right to destroy the compact, by which the states are confederated together, by construing that compact to be, whatever it pleases to make it. In a government admitted to be defective, all its defects are cured by applying the rule of precrustes, or are amended by the construing power of the supreme court; a power, which is equally unnecessary under the actual provisions of the constitution on that subject and dangerous, as it knows no limit but the arbitrary discretion of the judges. While that high court will scarcely allow that any other government, or any other department of its own government can do right, it acts upon the principle, that itself is never in the wrong. While it is profuse as we shall see in ascribing the most unworthy motives, to other governments, and other departments, it arrogates to itself a degree of purity scarcely equalled by the white ermine with which it is invested. It challenges a degree of infallibility scarcely claimed by the arrogant pretentions of the former Popes of Rome. There is but one higher grade in this climax of arrogance and absurdity, and that is, to claim to hold its powers by divine authority, and in utter contempt of the sovereign power of the people.

With respect to oppressions of violations of the constitution, committed by the other departments of the government, they can easily be corrected, by the elective franchise; and that franchise will be graduated, by the degree of oppression which is inflicted. But the court in question claims to hold its authority paramount to the power of the people. It is not elected by, nor is amenable to them. Having been appointed in one generation, it claims to make laws and constitutions for another (2). It acts always upon the foundation of its own precedents, and progresses, “with a noiseless foot and unalarming advance,” until it reaches the zenith of despotic power.

The supreme court seem to have entirely forgotten, that the American people are a people jealous of their rights and priveleges. Having passed through the Red-Sea of the revolution, and foiled a formidable tyrant in the conflict, the inestimable jewel then acquired. is not to be lightly cast away. They seem to have forgotton what all history teaches us, that power is an encroaching thing, and that all men who possess it, will “feel it, and forget right.” They seem to have forgotten that liberty can only be preserved by frequent elections as to two of the departments of government, and by checks and limitations judiciously applied, to the third. They seem to have claimed an exemption from the restrictions of the constitution, by the unlimited right they have usurped, to alter the constitution as they please. American history will teach that high court, on almost every page, that our people have, in all vicissitudes and changes, stickled for the division and limitation of powers. They have retained, entirely to themselves many important powers, and have refused to delegate them to any government. The powers actually delegated, have been also divided between two governments, and again sub-divided be. tween the different departments of each government. This division and limitation of the granted powers, and the checks necessarily resulting therefrom, forms the only security of our liberties. Without these checks the balance of power would always incline in favor of the strongest government, or the strongest department of each government. But for the purpose of establishing these checks, this limitation and division of power, would have been wholly unnecessary.

The supreme court, while it must admit, that both itself and its co-ordinate departments, are to be checked by each other, (and instances of which, I shall hereafter specify) denies that any check exists, in favor of the state governments. The inference would seem to hold, a fortiori, in favor of the latter. It would seem to be a much smaller abuse, of the federal constitution, that a power should be exercised by one department of the same government, which was confided to another, than that one government should usurp the just powers reserved to another. If the line of demarcation between the different departments of the same government, cannot be obliterated by implication or construction, neither can that broader and bolder line, which is established between the different governments. It would be a much greater calamity to the American people, to wipe out these broader lines between the two governments, and thus establish one great consolidated government, than, by obliterating the fainter lines drawn between the different departments, to vest all the proper powers of the general government in one department. In that case they would be still federal powers, which would be exercised: but the calamity would be inconceivable, of submitting the local and municipal concern of one section of this vast country to members coming from another, and who have no common interest with them in relation thereto.

The supreme court ought not to have forgotten, that although our general government is a national one as to some purposes, it is a federal one as to others. They ought also to have remembered, that states giving up some of their rights, and becoming members of a federal republic, do not, thereby, cease to be sovereign states (3). If the sovereignty of states is to be tested by the portion of power reserved, or given up, that criterion would clearly incline in favor of the state. We are told in The Federalist (4) that the powers delegated to the general government, are “few and defined, and relate chiefly to external subjects, while the states retain a residuary and inviolable sovereignty over all other subjects; over all these great subjects, which immediately concern the prosperity of the people.” Neither can that result be varied by adverting to the relative sizes, of the territories of the contracting governments. A criterion of that kind would exclude the little state of Delaware, from her equal sovereign rights under the confederation, with the great state of New York. If these facts are borne in mind, and if it is at the same time remembered, that neither the general government has received, nor the state governments have parted with, any powers but those which have been “delegated,” it will be difficult to sustain the decision of the supreme court. That decision has proceeded upon the idea, that quoad the judicial power, the state governments are not to be respected, and the supreme courts of the several states are to be regarded as inferior federal tribunals. In relation to the judicial power, at least, the states are not admitted to be sovereign.

These, fellow-citizens, are some of the objections I have to make to the decision of the Supreme Court. I shall, probably, advert to many others in the progress of my observations upon it. It is my purpose to endeavor to examine that decision under all its objectionable aspects and bearings. It is no small proof of the badness of the cause, espoused by that decision, that the opinion before us is objectionable, not only in its principles, but, also, in its form and structure. Considering the great talents by which it was composed, this defect cannot be otherwise accounted for. The opinion, besides being unusually tedious, and tautologous abounds in defects which are more important. It often adopts premises which cannot be conceded, and takes for granted, the very points which are to be proved. Its slips in history and in facts are but few and its sophistries are glaring and innumerable. If my remarks are tedious, tautologous, and desultory, it is because the opinion. in itself, is so. I must also throw myself upon the indulgence of the public, in this particular, on another ground. I have not time to prune or to polish.

I shall make no apology, fellow-citizens, for canvassing this most momentous opinion with freedom. The court, itself, has, indeed, invited a discussion of it. It has adopted the very novel course, of appealing to you, through the public papers, for its justification.(5) As I differ from them, toto coelo, on this great subject, I shall not yield to their principles, my assent or approbation. On the contrary, I readily take up the gauntlet which they have thrown down.

I further remark it as a very extraordinary circumstance, that this most awful decision should have been given offhanded, and as it were, without a moment's consideration. A judgment of this high court, involving the destiny of the constitution, is pronounced with the rapidity of a judgment of a court of pie-powder It is extremely remarkable, too, that all the judges should have been of the same opinion; not only as to the result of the discussion, but also, as to the numerous points and principles on which that result is founded. As the tendency of these principles is equally novel and alarming, it can only be ascribed to a culpable apathy in the other judges, or a confidence, not to be excused, in the principles and talents of their chief. It is indeed, to be regretted, that these high judges, have abandoned the practice of giving, each, their own opinions. That is well known to be one of the chief guarantees of the integrity and independence of the judges. I shall examine this opinion, with freedom; but not without a deep conviction of my inadequacy to do justice to the subject. No consciousness of inferiority, however, shall deter me from the undertaking. With my awful convictions on this subject, it would be an admission of treason to my country to decline it.

Yet, REPUBLICANS! I greatly fear that your sins have overtaken you. I deeply regret that you are found sleeping at your posts, and “that you could not watch one hour.” (6) I greatly fear, that the day of retribution is at hand. The sceptre of power, is, I fear, about to depart “from beneath your feet.” The leaders of that party, who were shorn of their political ascendancy, in 1801, are again beginning to bestir themselves. The hair of the federal (7) Sampsons has again begun to grow, and with it their power and their strength. They are hoping, with great glory to bring their vanquished party once more into power. They are bowing themselves with all their might, to overthrow the temple of Dagon, and will, at length, I fear, completely avenge themselves, of their political adversaries. Woe! be to the unhappy Philistines, who shall be crushed beneath its fall.

Algernon Sidney.

• (1) State Trials, Hampden's Case.
• (2) Judge Washington was appointed in the last century and Judge Marshall m the year one. [1801].
• (3) Vattel, p. 12.
• (4) 1 Fed. 29, 360.
• (5) By publishing the decision. Editor.
• (6) Mark, ch. 14, v, 37.
• (7) I use this term in its proper sense; as I shall, probably, do hereafter.