On the Lottery Decision, No. 4

by Spencer Roane

(Richmond Enquirer, June 5, 1821.) ON THE LOTTERY DECISION.

No. 4.

To the People of the United States:

The supreme court seems to perceive great evils, fellow citizens, from suing in the state tribunals those who act under the authority of the laws of the United States. If those mischiefs do exist, yet the power to correct the decisions is not thereby carried to the federal courts. No power, whatever the mischief may be, is possessed by them, unless it has been fairly conferred The constitution is not whatever that court thinks it ought to be. On that point, the people of the United states have also their opinion. They may have thought, differing in opinion from the supreme court, that the general government might, also, be induced to do wrong and violate the rights of the states and the people, and on this ground have left the constitution as it is. They have left a check in the hands of the states against the effect of such abuses. They may have foreseen the actual occurrence of the sedition law, for example, and have left power with the states or the people, to put down the abuse whenever it should happen. They may have had a better opinion of the state tribunals than their rivals for power are pleased to have on this occasion. They had neither been encouraged to take sides with the government which employs and pays them, nor been excited to consider those as groundless jealousies of the states, which are, in truth only rightful claims of their constitutional and indubitable rights. The American people, in forming their constitution, took sides with neither of the parties to this contest for power, but regarded as well the just rights of the several states, as the granted powers of the general government. Although, they no doubt foresaw some clashing between the two governments, and their respective departments, it was submitted to, as the lesser of evils, and as the price paid by the people for their liberties. They were to choose between a pure model of a federal republic and a confederation of the states, on the one hand and an absolute consolidated government on the other. They did not hesitate in their choice between the two; but they differed in opinion from the supreme court.

The supreme court is pleased to say, that a constitution “which was designed to approach immortality,” ought not to be so defective as not to have power to secure the execution of its own laws against all dangers. If that constitution was designed for immortality, it was certainly not so intended in its original form. It is admitted to have been eminently defective by the very provision contained in it for its amendment; and it has been accordingly, actually and greatly amended. Possibly, the point in question may be one of the very cases in which this amending power would be properly applied. What the constitution “ought to be,” is one thing and what it actually is, is another. The last is the only question with which the supreme court has any legitimate concern.

The supreme court has referred to the history of the times, in which the constitution was established in support of the construction they have adopted. In joining issue with them as to that history, I shall often have occasion in the sequel to differ from them respecting the facts thereof. I must also say, that if in this case, history is to be relied on, all the history which relates to the case ought to be taken into consideration. This is an universal rule in expounding all contracts and documents whatsoever You are to go by the whole, and not by a part, of the sense of him who speaks. If the petty state of Rhode Island had in these times rebelled against the federal authority; if, in some instances, other states had also refused obedience to the federal requisitions, that is only part of the history of those times It is also a part of that history that all the states, in entering into the present government, wished to preserve their state institutions. They wished only to enter into a federal government. The idea of one great national consolidated government was abhorrent to their minds Their preference of a general government, for general porposes, and of special governments for the preservation of their internal rights and liberties, had been perpetual, uniform and unbated.

That was the ground taken by the states in their contest with Great Britain. That was the sentiment, which induced all the states to declare, in the second of the articles of confederation, that “each state retains its sovereignty, freedom and independence, and every power, jurisdiction and right which is not by this confederation expressly delegated to the United States in Congress assembled.” It was that sentiment which induced the American people to adopt a similar provision, in the tenth amendment to the constitution. It was that sentiment which even previously to the adoption of that amendment had grown into a principle of the American constitution by common consent (1) and that according to the testimony of those who were the least favorable to the establishment of a federal government. If these important facts be a part of the “history of the times”, ought the supreme court to. have shut their eyes upon them? Ought they to have professed to be ignorant of their existence? Ought they to adopt a construction which cannot be reconciled with this part of the history of the times? Ought they still to deduce powers by distant and remote implication? Ought they by construction, to impute to the American people that they have made in effect, but one great consolidated government, when they have in fact established a confederation of independent states, have granted the powers it chose to confide to the general government, and reserved the rest to the states? Ought the court not to permit that government, which they say was “designed to approach immortality” to exist a single day in its original form and character?

The court seems to think that as the constitution enables it to reach the individuals directly and without the aid of any other power, they may protect them from punishment by executing the laws of the general government. So far as this implies a power of control over the judgments of the state courts, it must be first shown that that power has been given. The supreme court cannot extend the constitution so as to give themselves jurisdiction in this particular. Although that court might correct these judgments, under the general provisions of the constitution, if the state courts were federal courts, it can not do so, as they are not of this character. They are courts of another and a distinct government. It is not denied but that the people might have given an appeal in this case also, and possibly it ought to have been given. But they have not given it. It is an implication confronted by a thousand difficulties, that the courts of one government should control the judgments of the courts of another; and a construction going that length would completely obliterate the state authorities, and work a consolidation of the Union. There is nothing in the constitution, however the question of inconvenience may be, that makes this construction necessary. There are inferior federal courts established by the constitution, (art. 3rd) which will satisfy the appellate claim of the superior court; and therefore we are not to go into a construction which is extravagant and unreasonable. Without this strained construction, every word in the judicial article may be fully satisfied.

In answer to the counsel for Virginia who averred that the suggestions of the supreme court, as to a general disposition of the states to resist the federal authority were entirely imaginary, and that if this disposition should really exist the states could, at once by a shorter cut, put an end to the federal government by refusing to elect senators, the court admitting the last and conceding that the first is an extreme and improbable case, yet say—that quoad minor instances of what it calls, usurpation by “any parts” of the people, they ought to be repelled by “those to whom the people have delegated their power of repelling it.” If by the term “parts” here, is meant sections of the people, as individuals, short of their organization as states, the proposition is at once admitted. In that case, the contest is, only between the general government and the unauthorized acts of its own citizens. If on the other hand the regular acts of the state governments are intended, this word “parts” was very unhappily selected. It savors too much of consolidation. The opinion strikes at the existence and authority of the state governments in this particular, but does it under an artful and ambiguous expression. A state government is not properly denominated a “part” of the American people, but is one of the sovereign and independent members, of which our confederacy is composed. Their acts therefore are not, unless authorized by the constitution, subjected to the control of the General Government, although the acts of the individuals of that government may be. Hence these words “a part,” &c. were used, and they were not used but as a cover to disguise the pill. The proposition stated in its native shape, and using the term “states", might have been too unpalatable. It is here to be remarked, that the courts have conceded that the extreme case will not happen, and therefore, it cannot be argued from. The minor cases of opposition, then, are only to be apprehended. As for these petty collisions, and when it must be admitted that the states have no inducements to raise them without a cause, they had better be submitted to. They are the lesser of evils. It is better than sanctioning a power in the supreme court, which will set all the barriers of the state governments at defiance, and demolish the confederacy. As for what the court says of their being the tribunal, to whom this subject is confided, that as relates to contests for power between the two governments is taking for granted what ought, but cannot be proved. A compact between two parties is a nullity, as to one of them if the other by itself, or its agents, has the power of expounding it as it pleases.

The court says that the acknowledged inability of the government of the United States to contest the whole nation, acting in opposition thereto, is no sound argument in support of its constitutional inability, to preserve itself against a “section of the nation,” acting in opposition to the general will. Correctly speaking, the court should have said in the last instance. “a part of the people,” and then, there would have been no difference of opinion between us. But if by the torm they have used, they meant to include a “state,” and in relation to the powers reserved to the states, by the constitution, then I boldly say, that quoad this question a state is not a “section of the nation.” The states quoad these rights, are complete and independent sovereignties.

I must here take the liberty to remark once for all, that the supreme court not only takes a ground which, in effect, denies to the states any rights whatever, but also supposes that those states will always be in the wrong, and their favorite government always right They take the famous ground that is taken by the twenty-fifth section of the judicial act of Congress, namely, that a state court deciding in favor of an act of Congress is always right but always wrong when it decides against it. Nay, that act, I had almost said that absurd and ridiculous act, allows an appeal to the federal court in the last case, and denies it in the first.

The facts already stated show that no mischief will arise from any lack of independence or impartiality in the state judiciaries, and as for a due consideration of the cases, all of the states have provided for it by their regulations in favor of appellate and revisionary proceedings. The fears of the supreme court on this subject are therefore ideal and unfounded.

The supreme court has admitted the power of the states to destroy the General Government entirely, by all of them refusing to appoint Senators and electors of a President and Vice-President, and to destroy it, gues: the refusing states, by partial declensions in these particulars. They must also admit that a general opposition by the state judiciaries against encroachments of the federal courts would have the same effect. At least, in such cases they must relinquish the aid of the state courts in executing their obnoxious judgments and thus abandon their claim that the courts are subordinate courts of the General Government. Does not this analogy also hold as to partial stands made by the judiciaries of some of the states? In such cases is there not at least a pause, which calls for adjustment, by that people by whom and for whom both judiciaries were made? If the state-judiciaries are right, and claim nothing but the reserved rights of their respective governments, ought they to be thus violently and promptly put down? But this is not all. The state judges, also sworn to support the federal government and having as much interest in it as the federal judges, may make their stand in behalf of the just rights of the General Government, They may, in truth, be more attached to that government than the latter judges themselves. Ought they, also, in this case be put down and thus the judges of the federal court, be permitted, maugre all the efforts of the state judges to destroy the constitution of the Union? That argument is not a good one which does not hold both ways, and this last view shows an absolute and fatal power in the federal judges to destroy as well the rights of the Union as of the states Every argument drawn from the admission aforesaid, as to senators and electors, holds a fortiori, as to the case in question. A partial opposition by the state judiciaries does not stop even as to the opposing states as the other does to the whole General Government. It only, as to one of the departments of such states, creates a pause while the other benefits of the government are still enjoyed. This is one of the alternatives; the other is an absolute despotism by the courts of one government over those of another, and that by remote implication. Virginia is still another government unless we have entirely given up the fond idea of a confederation of the states.

The supreme court again explicitly admits that no partiality is to be imputed to the state tribunals in relation to their own citizens; that suits cannot be brought against the states in federal courts at their instance; and that those courts are not competent to “establish a demand” by citizens upon their own states. This concession also overrides the jurisdiction of the court in the case before us. If those courts cannot interfere in such cases positively, neither can they negatively. A right is as well “established” in favor of a citizen by arresting the effect of a judgment of a state court against him as by rendering a judgment “establishing a demand” in his favor. The difference between the two cases is imaginary and unreal. There is no want of impartiality in the state tribunals in the one case more than in the other; and hence the principle which precludes the federal jurisdiction ought to apply to both. The conclusion is irresistible on this subject, when you can only imp/y the jurisdiction in the case before us, and when the rights of a sovereign state are to be invaded by such implication. There is no right more clearly appertaining to sovereignty than an exemption from being sued in the courts of another government. A court which has no prejudice against a party as a party, can have none arising from the nature of his cause. In relation to the citizens of a state at least, we cannot suppose that the constitution will be wantonly violated to their prejudice, by the tribunals of that state; and this cuts up the pretended ground of jurisdiction in this case by the roots. Besides, the objection of a state to being sued in a foreign court is a matter in abatement and does not involve the merits of the controversy. It perhaps admits the right of being sued in its own courts. But the construction of the constitution or laws of the United States is a matter of bar and goes to the merits. So these two matters are further discriminated in this, that the first relates to, and is to be decided as it were, at the inception of the action; the other comes out for the first time in the remote progress of the pleadings. The right of a citizen to sue his state is not, therefore, in such case, coeval with the institution of his action, and the great principle is consequently violated which requires that there must be a cause of action, as well as proper parties at the time of instituting the suit. The ground of jurisdiction, or of action, may show itself for the first time, months and years after the institution of the suit, and the constitution or law, which is to give the court jurisdiction, may come out for the first time in the surrebutter of the defendant. In this case, therefore, the federal court may never have jurisdiction in the cause, and if there is ever a point of time at which the court has no jurisdiction, and especially if that be at the commencement of the action, the case should go off the docket. The court in this case have improved upon the famous provision of the twenty-fifth section aforesaid, giving an appeal from the highest state courts in cases in which the constitution, &c., were involved. In that case an appeal is allowed by Congress without an iota of the constitution to support it, IF, and only if, the decision is against that constitution or those laws. Where the decision of the court is the other way the decision of the state court is supposed to be correct and the appeal is denied. That section affords the rare anomaly of the jurisdiction of a court being final or otherwise, not in reference to its own actual constitution, or the subject matter which it decides, but according as it decides on one side or another of a given question. But in that case the existence of proper parties is supposed. The court in the case before us, extending the same principle, have given a jurisdiction in cases in which proper parties are wanting. They give it, to use their own phrase, “whoever may be the parties.” I have already stated cases in which there must be, from the nature of things, some limits on this subject of parties. One exception is that a cause of the judges themselves must be excepted notwithstanding the generality of the position as now laid down. The great error of the court consists in forgetting that in a case conferring jurisdiction the existence of necessary parties is always presupposed

The court have extended their jurisdiction in this case, where there is an admitted defect of proper parties, on the ground that otherwise the general clause respecting cases, arising under the constitution, &e., would be surplusage. That clause, however general, pre-supposes cases proper for the cognizance of the court, and those cases also pre-suppose the existence of necessary parties. The court can neither decide abstract points and questions, submitted to it, nor dispense with the requisite parties. It sits to decide real controversies depending between those who are authorized to come before it. Besides, the jurisdiction of the supreme court is only “extended” to embrace these cases and may have been so extended, only through abundant caution. That jurisdiction is, however, only concurrent in the federal courts, taken in relation to those of the states. Yet the pretension now set up is to exclude the previous jurisdiction of the state courts. It is so construed, without any expression in the constitution to warrant it; when an invasion of the jurisdiction of the state courts is created thereby; and when without such invasion, the word “extend” can be otherwise fully satisfied. The supreme court, after committing the great error of supposing that under the general words “all cases arising under the constitution,” &c., these cases were included, also, in which there was a plain and palpable defect of parties, commit another great and alarming mistake. They say that jurisdiction in this case is carried to the federal court, as it is not “excepted” in favor of the states. On the contrary, while the powers of the general government and all its departments depend upon positive grants of power, by the constitution, and not upon remote implication, the rights of the states do not depend upon any “exceptions” in their favor. The tenth amendment to the constitution settles this matter unequivocally, and puts down this alarming idea of the supreme court. Unless a jurisdiction in this case, has been “delegated to the United States by the constitution,” the court cannot assume it; and, on the contrary, an exemption from that jurisdiction is reserved to the states, or to the people, by not being “delegated.” The principle asserted by this amendment, and which, also, was an acknowledged principle of construing the constitution before, loses none of its force when applied to the actual case before us. The case is a very strong one, and the grounds of objection very clear, in which one sovereign state refuses to be “dragged” into the courts of another.

The court proceeds to repeat the assertion that if their construction is not admitted, the state courts may “arrest the progress of the general government, in its constitutional course.” That court throughout its opinion, indulges in as the supreme judges themselves, be restrained from destroying it.

The court expressly avows an opinion that under the general words before mentioned, the constitution in its original shape gave a jurisdiction in this case, whenever the constitution and laws of the United States came in question “whoever might be the parties.” This idea is of an entirely modern origin; and was never started until on the present occasion. I have examined the debates of the Virginia Convention with care, and no expression save one ever dropped from any member, insinuating a possibility that a state could be sued by its own citizens in the federal court in any shape, or under any circumstances. Mr. Henry in his excessive jealousies on this subject, and which in other instances induced him even to distort that instrument never indulged in such an idea.

No other man, save one, ever took up such an opinion. The amendments offered by Virginia at the time of adopting the constitution never foresaw the possibility of this objection and made no provision to restrain the jurisdiction. The refinement had not then occurred that a sovereign state could be sued without its consent in another government, nor that that could be effected in the appellate form which had not been granted in any other. Mr. Mason, indeed, did hazard some such idea (2), but being sharply reprehended by Mr. Nicholas therefor, who said that the idea was not warranted by the words of the constitution, the former gave it up. He admitted that he might have been mistaken, from his great age, and the defect of his memory. Mr. Marshall in the convention more than decided this case against his present opinion. He denied that, even in controversies between a state and citizens of another state, the states could be “dragged” to the bar of the federal court. He said that the express provision in the judicial article, in relation to this case, could not be expounded so as to make a sovereign state a defendant, in the federal courts (3). The opinion of this very able man was then governed by substance and not by forms. Great principles then operated on his luminous mind, not hair-splitting quibbles and verbal criticisms. Mr. Madison said that it was not in the power of even citizens of another state to call any state into the federal court: that the only operation the clause could have, would be that a state might sue a citizen as a plaintiff, and that if a state should condescend to go into the federal court, as plaintiff, the court might take cognizance of the case (4). So high was then the respect for the sovereignty of the states and so strict were these great men—the warmest friends, too, of the constitution—that even under the express provision in the third article and in relation to citizens of other states the construction, now in question, was reprobated. Every argument then used holds a fortiori between a state and its own citizens. That is the case under the original constitution, but the eleventh amendment to it has put the matter entirely at rest. I will only add, from a respectable writer (5) on this part of the subject, that the original constitution did not extend to any case, but between a state and its own citizens, and that now, by the eleventh amendment, the case is the same as to foreign subjects or citizens.

The court, while it admits that the appellate power now maintained is not derived to the supreme court, in the case before us, under the words conveying the appellate power in the last part of the section relating to the same, contends that it is carried by the general words before mentioned. It goes so far as to say that this jurisdiction arises under those words in “all cases whatsoever,” and “whoever may be the parties.” This position has been shown to be not universally true; and the maxim falsum in uno falsum in omnibus emphatically applies. It is not true, I will further add, as to cases previously deposited with the supreme court in its original character, such as those respecting ambassadors, and in which a state is allowed to be a party. As to these, although constitutional questions may occur, no appeal would lie to the supreme court. It would not so lie. unless you encountered the absurdity of appealing from the decisions of a court to the same court. It would be a curious anomaly to see such an appeal as this prosecuted. The proposition, broad as it is, of the supreme court, is not therefore universally true, and a construction which leads to an absurdity is not to be adopted. Nor is it true in the case before us. It is scarcely less absurd to appeal from the decisions of a court to the same court, than to appeal to the appellate court of another government. An appeal cannot be construed to lie in such a case, because the reversing court has no power to coerce the execution of its sentence. All these absurdities and inconveniences will be avoided by considering the first clause as describing the classes of cases which are embraced by the federal jurisdiction in the general, and the second as parcelling out that jurisdiction between the supreme and inferior tribunals. Thus construing the general words aforesaid, and also regarding the specifications of jurisdiction which follow them, we should not infringe the approved maxim that all powers are not to be considered as given when some are enumerated. A construction deduced by remote inferences, besieged by insuperable difficulties and leading to absurdities, is not to be lightly adopted. It is not to be adopted, when so far from being necessary, or producing any utility, it leads directly to overthrow the state governments; and disables their judiciaries from affording them any security against an inordinate lust of power in the general government.

Such a construction would completely verify the prophecy of Mr. Henry on this subject, in the Virginia Convention. “I see,” said he, “arising out of that paper, a tribunal that is to be recurred to in all cases when the destruction of the state judiciaries shall happen, and that by it the state courts will soon be annihilated” (6). It would take from the states, in the language of Mr. Grayson, “their only defensive armour—the state judges, who are the principal defense of the state,” and make the judiciary of Virginia be considered inferior federal tribunals (7). Mr. Mason also said (8), that “when we come to the judiciary we shall be more convinced that it will terminate in the annihilation of the state government.”

It is further said, in support of the construction of the supreme court, that no “negative words” are used in the clause to oust the appellate power of the court, in the case in question. There are no such negative words used to prohibit the appellate power of the supreme court over its own decisions, and yet, I presume, it would not be sustained. Such words are equally unnecessary in relation to the decisions of the courts of another government, The want of these express words is amply supplied in both instances, by an invincible negative growing out of the intrinsic circumstances of the cases.

As for the case put by the supreme court, touching the jurisdiction in the case of ambassadors, it is to be observed, that whenever they sue, or are sued, in the federal courts, they have, in effect, the benefit of the appellate jurisdiction, by having their case already decided in the supreme court, in which all such suits must be brought. If they sue as plaintiffs, in the state courts, they have elected their jurisdiction, and cannot hesitate to abide by it; and in relation to the few cases, in which they may be found in the states, and sued in the state courts, I am inclined to think that they cannot vary the construction. That, however, is a stronger case than the one before us, and need not to be now decided. Such cases are few, and a construction is to be made in relation to cases, quae frequentius accidunt. When so many benefits are extended to ambassadors, by the actual provisions of our system, they cannot complain that this small and solitary privilege is denied them. The ambassador of Peter the Great, of Russia, in the memorable case, in the time of Queen Anne, was obliged to submit to the general and salutary provisions of the laws of England. The sovereigns of all the nations in Europe are bound to know that we live under a federal republican government; and are also bound to submit to the consequences of such a system. We have a great respect for peace, and for the privileges of foreign ministers: but they must not make demands upon us, which are interdicted by the actual provisions and nature of our government. I am inclined to think that if these ambassadors quit the seat of the general government, go into the states and contract debts with their citizens, they must submit to be there sued: They will have their causes tried however, by judges as much bound to support the constitution, laws and treaties of the United States, as the judges of the supreme court themselves. Uniformity of decision may be desirable, in such cases, but of this the people are to judge. The constitution has not, I think, ousted the state courts of their jurisdiction, in such cases. The court is therefore probably mistaken in saying that the clause touching ambassadors was inserted for the purpose of excluding the jurisdiction of all courts other than the supreme court. The exclusion is, I think, only extended to all other courts of the federal government. The previous right of suing them in the state courts is not to be taken from the states by implication.

The court says, that the appellate jurisdiction of the supreme court is often exercised in relation to suits brought by foreign consuls, in our “prize courts.” Those courts are a part of the federal judiciary, and the difficulty does not arise in that case which exists in this. It is natural that the superior courts should correct the judgment of the inferior courts of the same government. Although in such cases, an original jurisdiction in the supreme court, might perhaps, be claimed, under the constitution, it may also be relinquished. If those consuls do not get the opinion of the supreme court in the first instance, they ought, perhaps, to have it in the dernier ressort. By suing in the inferior federal courts, these persons disrobe themselves, as it were, of their consular character. This is, especially the case, if as the court says, they sue for the benefit of others. In this case, then, they are not to be considered as consuls, and there is nothing to obstruct the ordinary appellate jurisdiction of the court. This case, however, has no similitude to the case before us. It is probably because those consuls want the revisionary power of the supreme court that they bring their suits in the “prize courts” of the United States, instead of the courts of the several states. Their practice, then, entirely accords with my construction of the constitution, and overrules the pretension, now in question.

I shall not accompany the court in their explanation of what fell from them in the case of Marbury against Madison, upon this subject. While they are at perfect liberty to retract or explain away, what they said, on that occasion, I entirely accord with them in opinion that only what is directly pertinent, to the case in hand, is to be regarded as authority, and that everything else is to be rejected as extrajudicial. That concession, however, destroys several of the pillars, of the present opinion of the court, and will forever abolish almost all the volumes of Wheaton. The reports of that gentleman have become entire tracts and treaties upon constitutional subjects. A great part of the time of every session of the supreme court is occupied in amending— fatally amending— an existing constitution. I do not find it necessary to insist that anything contained in the case of Marbury against Madison, gives to the affirmative, words in the clause in question, a negative character. In relation to the claim of jurisdiction, now before us, it is reprobated by facts and circumstances more clear and emphatic, than any negative words whatsoever.

Algernon Sidney.

• (1) 2. Fed. pa. 232.
• (2) Debates pa. 372.
• (3) Ib. 942.
• (4) Ib. 278.
• (5) Tuck Append. 423.
• (6) Deb. 325.
• (7) Ib. 493.
• (8) Ib. 34.