Page:John P. Branch Historical Papers - Volume 2.djvu/322



The act under which the plaintiff in error founds his claim to “protection” (in the language of the court) in this case, is not an act of the congress of the United States. It is an act of the corporation of the city of Washington. This act is indeed bottomed upon an act of congress permitting that corporation to establish lotteries; but the act of congress in itself is entirely inchoate and imperfect.

It only grants authority to the city to act in such a case and may be considered as a general letter of attorney. It is only the act of the corporation of the city which assumes the form and character of a specific law. If, therefore this act or ordinance, be a statute of the United States, it is yet not one made by the congress of the United States, but by the corporation of the city of Washington. It has been decided by the supreme court to be an act of the United States, in the case in question. It has been so decided by sustaining the jurisdiction of the court, which has no pretence of an existence, but on the ground that it is a statute of the United States and has been decided against in the state court. It has indeed been also decided by the court that it is not such a statute of the United States, as is competent to over-rule the state law with which it conflicts; but this is only for want of words denoting an intention that its tickets may be sold in the several states. Had these last words been inserted in the power of attorney granted by congress, and in the ordinance made in pursuance thereof, the opinion of the supreme court is full up to the point of giving relies against the law of Virginia as well as of sustaining its jurisdiction. Admitting that an act made perfect on this subject, and completed by the congress itself, and not by its deputy, would have this extensive effect, the act before us cannot have it. It is a principle emphatically