(Richmond Enquirer, May 29, 1821.) ON THE LOTTERY DECISION.
No. 2.
To the People of the United States:
The address of the supreme court is remarkable, fellow-citizens, in the very outset of their opinion After stating that the controversy in question, arose under conflicting acts of the general and state governments, it adds, that, in the state court the plaintiff in error claimed the “protection” of the act of Congress. This word “protection”, seems to import the entire innocence of that party. It also implies, that the act of the corporation of Washington, under which he acted, was entirely without blemish, and that the statute of Virginia, under which he was prosecuted was wholly indefensible. Nothing can be more remote from the truth than all of these positions: and all this is even admitted by the supreme court itself. But for the conflicting act of the city of Washington, dignified by the supreme court with the name of a statute of the United States, there is no pretence to say that the statute of Virginia was at all objectionable; and the court itself has admitted that the act of the city of Washington is incompetent to retard its execution. This last mentioned act is under the actual decision of the court a void authority when taken in relation to the territory of Virginia: it, therefore, affords no justification, nor can give any “protection” to the person who acts under it.(1) From the showing of the court itself, therefore, the plaintiff in error was not innocent, nor could justly claim the “protection” of the act of Congress. That word, therefore, was unfortunately selected by the court in this instance; but it was not so selected without an object. That object was to excite your sympathy on the side of the appellant and to propitiate your judgment in favor of the principles it had determined in this case to establish.
The courts have next proceeded to say, for the purpose of giving themselves jurisdiction, in this case that the court of hustings, of the borough of Norfolk, in which the judgment appealed from was rendered, was the “highest court of the State, in which the cause was cognizable."
On the contrary, I humbly apprehend, that if the information in question be considered as a criminal prosecution, the circuit court for the county, and perhaps the general court of the commonwealth, have appellate jurisdiction. I infer this conclusively from the statutes referred to in the margin(2). I also think it not impossible, but that as the object of the information was to recover a sum of money due to the commonwealth, although, in form, it has the appearance of a criminal proceeding, in substance it might be held to be a decision upon a civil right:and if so, an appeal would lie upon it, to the supreme court of the commonwealth, under the distinction taken by that court in the case of Bedinger against The Commonwealth(3). In any view, however, the court of hustings, of the borough of Norfolk, was not the highest court in the State, in which the case was cognizable, and it was, therefore, prematurely carried into the Supreme Court of the United States. The error, if one existed, might have been equally well corrected in one of the appellate courts of the state. Probably, however, this point may have been conceded by the counsel, or, possibly, it may have been feigned by the court. A practice of that kind is not without example in that high court (4). Such a practice may be, also, very convenient to the supreme court in furthering its favorite object of expounding the Constitution, in the gross, and settling, by anticipation, the real causes which may come before it. The court proceeds to say, that the defendant in error moves to dismiss the writ of error, on three grounds, which are particularly stated. If the foregoing ideas be correct, the court should have added another ground of objection, and, itself, have dismissed the suit. It should have permitted the appellate courts of the State to have corrected the error which is complained of.