University of Virginia Library

8238. SUPREME COURT, State rights and.—[further continued].

You request me confidentially,
to examine the question, whether
the Supreme Court has advanced beyond its
constitutional limits, and trespassed on those
of the State authorities? I do not undertake
it, because I am unable. Age and the

wane of mind consequent on it, have disqualified
me from investigations so severe,
and researches so laborious. And it is the
less necessary in this case, as having been
already done by others with a logic and learning
to which I could add nothing. On the
decision of the case of Cohen vs. The State
of Virginia, in the Supreme Court of the
United States, in March, 1821, Judge Roane,
under the signature of “Algernon Sidney”,
wrote for the [Richmond] Enquirer a series
of papers on the law of that case. I considered
these papers maturely as they came
out, and confess that they appeared to me to
pulverize every word which had been delivered
by Judge Marshall, of the extrajudicial
part of his opinion; and all was extra-judicial,
except the decision that the act
of Congress had not purported to give to
the Corporation of Washington the authority
claimed by their lottery law, of controlling
the laws of the States within the States
themselves. But, unable to claim that case,
he could not let it go entirely, but went on
gratuitously to prove, that notwithstanding
the Eleventh Amendment of the Constitution,
a State could be brought as a defendant, to
the bar of his court; and again, that Congress
might authorize a corporation of its
territory to exercise legislation within a State,
and paramount to the laws of that State. I
cite the sum and result only of his doctrines,
according to the impression made on my
mind at the time, and still remaining. If not
strictly accurate in circumstance, it is so in
substance. This doctrine was so completely refuted
by Roane, that if he can be answered,
I surrender human reason as a vain and useless
faculty, given to bewilder, and not to
guide us. And I mention this particular case
as one only of several, because it gave occasion
to that thorough examination of the
constitutional limits between the General and
State jurisdictions, which you have asked
for. There were two other writers in the
same paper, under the signatures of “ Fletcher
of Saltoun”, and “Somers”, who, in a
few essays, presented some very luminous
and striking views of the question. And
there was a particular paper which recapitulated
all the cases in which it was thought
the Federal Court had usurped on the State
jurisdictions. * * * The subject was taken
up by our [Virginia] Legislature of 1821-'22,
and two drafts of remonstrances were prepared
and discussed. As well as I remember,
there was no difference of opinion as to the
matter of right; but there was as to the expediency
of a remonstrance at that time, the
general mind of the States being then under
extraordinary excitement by the Missouri
question; and it was dropped on that consideration.
But this case is not dead, it only
sleepeth. The Indian chief said he did not
go to war, for every petty injury by itself,
but put it into his pouch, and when that was
full, he then made war. Thank heaven, we
have provided a more peaceable and rational
mode of redress.—
To Judge William Johnson. Washington ed. vii, 293. Ford ed., x, 229.
(M. June. 1823)

—SURGERY.—See Medicine.