Such was the situation concerning which John Marshall addressed the American people in his epochal opinion in the case of Cohens vs. Virginia. The noble passages of that remarkable state paper were inspired by, and can be understood only in the light of, the crisis that produced them. Not in the mere facts of that insignificant case, not in the precise legal points involved, is to be found the inspiration of Marshall's transcendent effort on this occasion. Indeed, it is possible, as the Ohio Legislature and the Virginia Republican organization soon thereafter charged, that Cohens vs. Virginia was "feigned" for the purpose of enabling Marshall to assert once more the supremacy of the Nation.
If the case came before Marshall normally, without design and in the regular course of business, it was an event nothing short of providential. If, on the contrary, it was "arranged" so that Marshall could deliver his immortal Nationalist address, never was such contrivance so thoroughly justified. While the legal profession has always considered this case to be identical, judicially, with that of Martin vs. Hunter's Lessee, it is, historically, a part of M'Culloch vs. Maryland and of Osborn vs. The Bank. The opinion of John Marshall in the Cohens case is one of the strongest and most enduring strands of that mighty cable woven by him to hold the American people together as a united and imperishable nation.
Fortunate, indeed, for the Republic that Marshall's fateful pronouncement came forth at such a critical hour, even if technicalities were waived in bringing before him a case in which he could deliver that opinion. For, in conjunction with his exposition in M'Culloch vs. Maryland, it was the most powerful answer that could be given, and from the source of greatest authority, to that defiance of the National Government and to the threats of disunion then growing ever bolder and more vociferous. Marshall's utterances did not still those hostile voices, it is true, but they gave strength and courage to Nationalists and furnished to the champions of the Union arguments of peculiar force as coming from the supreme tribunal of the Nation.
Could John Marshall have seen into the future he would have beheld Abraham Lincoln expounding from the stump to the farmers of Illinois, in 1858, the doctrines laid down by himself in 1819 and 1821.
Briefly stated, the facts in the case of Cohens vs. Virginia were as follows: The City of Washington was incorporated under an act of Congress[955] which, among other things, empowered the corporation to "authorize the drawing of lotteries for effecting any important improvements in the city which the ordinary funds or revenue thereof will not accomplish," to an amount not to exceed ten thousand dollars, the object first to be approved by the President.[956] Accordingly a city ordinance was passed, creating "The National Lottery" and authorizing it to sell tickets and conduct drawings.
By an act of the Virginia Legislature[957] the purchase or sale within the State of lottery tickets, except those of lotteries authorized by the laws of Virginia, was forbidden under penalty of a fine of one hundred dollars for each offense.
On June 1, 1820, "P. J. & M. J. Cohen, ... being evil-disposed persons," violated the Virginia statute by selling to one William H. Jennings in the Borough of Norfolk two half and four quarter lottery tickets "of the National Lottery, to be drawn in the city of Washington, that being a lottery not authorized by the laws of this commonwealth," as the information of James Nimmo, the prosecuting attorney, declared.[958]
At the quarterly session of the Court of Norfolk, held September 2, 1820, the case came on for hearing before the Mayor, Recorder, and Aldermen of said borough and was decided upon an agreed case "in lieu of a special verdict," which set forth the sale of the lottery tickets, the Virginia statute, the act of Congress incorporating the City of Washington, and the fact that the National Lottery had been established under that act.[959] The Norfolk Court found the defendants guilty and fined them in the sum of one hundred dollars. This paltry amount could not have paid one twentieth part of the fees which the eminent counsel who appeared for the Cohens would, ordinarily, have charged.[960] The case was carried to the Supreme Court on a writ of error.
On behalf of Virginia, Senator James Barbour of that State[961] moved that the writ of error be dismissed, and upon this motion the main arguments were made and Marshall's principal opinion delivered. In concluding his argument, Senator Barbour came near threatening secession, as he had done in the Senate: "Nothing can so much endanger it [the National Government] as exciting the hostility of the state governments. With them it is to determine how long this government shall endure."[962]
In opening for the Cohens, David B. Ogden of New York denied that "there is any such thing as a sovereign state, independent of the Union." The authority of the Supreme Court "extends ... to all cases arising under the constitution, laws, and treaties of the United States."[963] Cohens vs. Virginia was such a case.