Anderson v. Dunn, 19 U.S. (6 Wheat.) 204 (1821)

ANDERSON ®. DUNN.

To an action of trespass ag-alnst the serjreant at arms of the House of Representatives of the United States, for an assault and battery and false Impris¬ onment, It Is a legal justification and bar, to plead, that a Congress was held and sitting, during the period of the trespasses complained of, and that the House of Representatives had resolved that theplaintm had been guilty of a breach of the priv¬ ileges of the House, and of a high contempt of the dignity and authority of the same; and had ordered that the speaker should Issue his warrant to the sergeant at arms, commanding him to take the plaintiff into cu8tod.y, wherever to be found, and to have him before the said House, to answer to the said charge ; and that the speaker did ac¬ cordingly is«ue such a warrant, reciting the said resolution and order, and commanding I he sergeant at arms to take the plaintitf into custody, &c., and delivered the said warrant to the defendant. Ry virtue of which warrant the defendant arrested the plaintiff, and conveyed him to the bar of the House, where he was heard in his defense, touching the matter of the said charge, and the examination be¬ ing adjourned from day to day, and the House hav¬ ing ordered the plaintiff to be detained In custody, he was accordingly detained by the defendant, un¬ til he was finally adjudged to be guilty, and con-

242

1821

vlcted of the charge aforesaid, and ordered to be forthwith brought to the bar, and reprimanded by the speaker, and then discharged from custody ; and after being thus reprimanded, was actually discharged from the arrest and custody aforesaid.

Error to the circuit Court of the District of Columbia.

This was an action of trespass, brought in the court below, by the plaintiff in error, against the defendant in error, for an assault and bat¬ tery, and false imprisonment; to which the de¬ fendant pleaded the general issue, and a special plea of justification. The *plaintiff’

demurred generally to the special plea, which was adjudged good, and the demurrer over¬ ruled; and judgment upon such demurrer was entered for the defendant, and a writ of error brought by the plaintiff. The question arising upon the demurrer will be best explained by giving the defendant’s plea at large, as pleaded and adjudged good upon general demuiTcr, in the Circuit Court, viz. :

And the said 'Thomas, by the leave of the court here first had, further defends the force and injury, when, &c. And as to the coming with force and arms, or whatsoever is against the peace; and also as to the assaulting, beat¬ ing, bruising, battering, and ill-treating of the said John, in manner and form as the said John, in his said declaration, hath above supposed to be done, the said Thomas saith that lie is not guilty thereof ; and of this he, as before, puts himself upon the country. And as to the im¬ prisonment of the said John, and the keeping and detaining him in confinement, at the time in the said declaration mentioned, to wit, on the said eighth day of January, in the year one thousand eight hundred and eighteen, and for the space of two months in the said declaration mentioned, the said Thomas saith, that the said John ought not to have or maintain his action aforesaid against him, because he saith that long before and at the said time when, &c. , in the introduction of this plea mentioned, and during all the time in the said declaration men¬ tioned, a Congress of the United States was holden at the city of Washington, in the county of Washington, and District of Columbia aforesaid, and was then and there, *and

during all the time aforesaid, assembled and sitting; "and that long before and at the time when, &c., in the introduction of this plea men¬ tioned, and during all the time in the said dec¬ laration mentioned, he the said Thomas was, and yet is, sergeant at arms of the House of Representatives (then and there being one of the Houses whereof the said Congress of the United States consisted), and by virtue of his said office, and by the tenor and effect of the standing rules and orders ordained and estab¬ lished by the said House for the determining of the rules of its proceedings, and by the force and effect of the laws and customs of the said House, and of the said Congress, was then and there, and during all the time aforesaid, and yet is duly authorized and required, amongst other things, to execute the commands of the said House, from time to time, together with all such process issued by authority thereof, as shall be directed to him by the speaker of the said House; and that long before, and at the time when, &c., in the introduction of this plea mentioned, and during all the time in the dec-

Wheat. 6.

1821

Andekbon V. Dunn.

206

laration mentioned, one Henry Clay was, and yet is, the speaker of the said House of Repre sentatives, and by virtue of his said office, and by the tenor and effect of such standing rules and orders as aforesaid, and by the force and effect of such laws and customs as aforesaid, then and there, and during all the time afore¬ said, was and yet is, amongst other things, duly authorized and required to subscribe with his proper hand, and to seal with his seal, all writs, warrants, and subpoenas issued by order of the said House; and that long before and 207] at the time when, &c. , in the introduc¬ tion of this plea mentioned, and during all the time in the said declaration mentioned, one Thomas Dougherty was, and yet is, the clerk of the said House of Representatives; and by virtue of his said office, and by the tenor and effect of such standing rules and orders as aforesaid, and by the force and effect of such laws and customs as aforesaid, then and there, and during all the time aforesaid, was and yet is, amongst other things, duly authorized and required to attest and subscribe with his proper hand, all such writs, warrants, and subpcenas issued by order of the said House; and that long before, and at the time when, &c. , in the introduction of this pica mentioned, and dur¬ ing all the time in the said declaration men¬ tioned, and ever since, it was and yet is, amongst other things, ordained, established, and practiced, by and under such standing rules and orders as aforesaid, and such laws and customs as aforesaid, that all writs, war¬ rants, subpoenas, and other process issued by order of the said House, shall be under the hand and seal of the said speaker of the said House, and attested by the said clerk of the said House; and so being under the hand and seal of the said speaker, and attested by the said clerk as aforesaid, shall be exe¬ cuted, pursuant to the tenor and effect of the same, by the said sergeant at arms. And the said Thomas, the defendant, further saith, that the said Henry Clay, so being such speaker of the said House of Representatives as aforesaid, and the said Thomas Dougherty, so being such clerk of the same House as aforesaid, and he 208] the said defendant, so being such ser¬ geant at arms of the same House as aforesaid, and the said Congress, so being assembled and sitting as aforesaid, heretofore and before the said time when, &c., in the introduction of this plea mentioned, to wit, on the seventh day of January, in the year afore-said, at Wa.shing- ton aforesaid, in the county and district afore.said, it was, in and by the said House, for good and sufficient cause to the same appear¬ ing, resolved and ordered, pursuant to the tenor and effect of such standing rules and or¬ ders so ordained and established as aforesaid, and according to the force and effect of such laws and customs as aforesaid, that the said John had been guilty of a breach of the priv¬ ileges of the said House, and of a high contempt of the dignity and authority of the same; wherefore, it was then and there, in and by the said House, further resolved and ordered, in the like pursuance of such standing rules and orders as aforesaid, and of such laws and cus¬ toms as aforesaid, that the said speaker should forthwith issue his warrant, directed to the sergeant at arms, commanding him to take into Wheat. 6.

custody the body of the said John, wherever to be found, and the same forthwith to have be¬ fore the said House, at the bar thereof, then and there to answer to the said charge, &c., as l>y the journal, record, and proceedings of the said resolutions and order in the said House remaining, reference being thereto had, will more fully appear. Whereupon, the said Henry Clay, so being such speaker as aforesaid, in pursuance of such standing rules and orders as aforesaid, and according to such laws and cus¬ toms as afore«iid, did, for *the execution

of the resolutions and order aforesaid, afterwards and befoi’e the time when, &c., in the introduc¬ tion of this plea mentioned, to wit, on the said seventh day of January, in the year aforesaid, at_ Washington aforesaid, in the county afore¬ said, as such speaker as aforesaid, duly make and issue his certain warrant, under his hand and seal, duly directed to the said Thomas, the defendant, as such sergeant at arms as afore¬ said (to whom, so being such sergeant at arms as aforesaid, the execution of such warrant then and there belonged), and by the said Thomas Dougherty, so being such clerk as aforesaid; in and by said warrant, reciting that the said House of Representatives had, that day, resolved and adjudged, that the said John Anderson had been guilty of a breach of the privileges of the said House, and of a high contempt of its dignity and authority ; and that the said House had thereupon ordered the said speaker to issue his warrant, directed to the said sergeant at arms, commanding him, the said sergeant, to take into custody the body of the said John Anderson, wherever to be found, and the same forthwith to have before the said House, at the bar thereof, then and there to answer to the said charge; therefore, it was re¬ quired that the said Thomas, the defendant, as such sergeant as aforesaid, should take into his custody the body of the said John Anderson, and then forthwith to bring him before the said House, at the bar thereof, then and there to answer to the charge aforesaid, and to be dealt with by the said House, according to the con¬ stitution and laws of the United States; and said *Henry Clay, so being such speaker

as aforesaid, then and there, and before the •said time, when, &c., in the introduction of this plea mentioned, delivered the said warrant to the said Thomas, so being such sergeant as aforesaid, to be executed in due form of law. By virtue, and in execution of which said war¬ rant, the said Thomas, as such sergeant as aforesaid, afterwards, to wit, at the said time when &c. , in the introduction of this plea men¬ tioned, at Washington aforesaid, in order to arrest the said John, and convey him in custody to the bar of the said House, to answer to the charge aforesaid, and to be dealt with by the said House, according to the constitution and laws of the United States, in obedience to the resolutions and order aforesaid, and to the tenor and effect of the said warrant, so issued as aforesaid, went to the said John, and then and there gently laid his hands on the said John to arrest him, and did then and there arrest him by his body, and take him into custody, and did then forthwith convey him to the bar of the said House, as it was lawful for the said Thomas to do for the cause aforesaid; and thereupon such proceedings were had, in and

243

210

Supreme Ooukt of the United States.

1821

by the said House, that the said John was then and there forthwith duly examined, and heard in his defense, before the said House, at the bar thereof, touching the matter of the said charge ; and that such examination was, in and by the said House, and by the resolutions and orders of the same, duly adjourned and con¬ tinued from day to day, from the said time when, &c., inthe introduction of this plea men¬ tioned, until the sixteenth day of January, in 211] the year aforesaid; which said exam¬ inations were then so adjourned and continued, as aforesaid, from necessity, in order to go through and conclude the examination and de¬ fense of Xhe said John, touching the matter of the said charge, before the said House ; neither the said examination, nor the said defense, hav¬ ing been finished or concluded before the day last aforesaid ; during all which time, to wit, from the said time when, &c. , in the introduc¬ tion of this plea mentioned, until the day last aforesaid, it was, in and by the said House, duly resolved and ordered, from day to day, as tlie said examination was adjourned and con¬ tinued as aforesaid, that the said John should be remanded, kept, and detained in the custody of the said Thomas, as such sergeant as afore¬ said, by virtue and in execution of the said warrant, in order to have such his e.xaminations and defense finished and concluded, in due form : and the said Thomas, as such sergeant as aforesaid, afterwards, to wit, at and from the said time when, &c., inthe introduction of this plea mentioned, until the said sixteenth day of January, in the year aforesaid, did, in pursuance of the last-mentioned resolutions and orders of said House, and by virtue, and in exe¬ cution of the said warrant, keep and detain the said John in custody as aforesaid, and him did bring and have, from day to day, during the said time, before the said House, at the bar thereof, in order to undergo such examinations as aforesaid, and to he heard in his defense aforesaid, touching the matter of the said charge, to wit, at Washington aforesaid, in the county aforesaid, it was also lawful for him. 212] the said Thomas, to do for the cause aforesaid; and thereupon afterwards, to wit, on the said last-mentioned sixteenth day of January, in the year aforesaid, such further proceedings were had in and by the said House, that it was then and there finally resolved and adjudged, in and by the said House, that the said John was guilty, and convict of the charge aforesaid in the form aforesaid ; and that he be forthwith brought to the bar of the said House, and there reprimanded by the said speaker, for the outrage by the said John com¬ mitted, and then that he be forthwith dis¬ charged from the custody of the said sergeant at arms. And thereupon the said John was then and there, in pursuance of the last-mentioned resolutions, order, and judgment, forthwith reprimanded by the said speaker, and then forthwith dischai'ged from the arrest and cus¬ tody aforesaid ; as by the journals, record, and proceedings of the said resolutions, orders, and judgment in the said House remaining, refer¬ ence being thereto had, will more fully appear ; which are the same several supposed trespasses in the introduction of this plea mentioned, and whereof the said John hath, above, in his said declaration, complained against the said

241

Thomas, and not other or different. With this, that the said Thomas doth aver that the said J ohn, the now plaintiff, and the said John Anderson, in the said resolutions, orders, warrant, and judg¬ ment respectively mentioned, was, and is, one and the same person ; and that at the said several times in this plea mentioned, and during all the time therein mentioned, the said Congress of the United States was ^assembled

and sitting, to wit, at Washington aforesaid, in the county aforesaid; and this the said Thomas is ready to verify. Wherefore he prays judgment, if the said John ought to have or maintain his aforesaid action thereof against him, &c.

Mr. Hall, for the plaintiff in error, made three points:

authority to issue the warrant.

it.

to the officer who executed it.

either in virtue of the constitution of the United States, of usage and precedent, or as inherent in, and incidental to, legislative bodies. In the constitution there are but two clauses which can be made to ’ serve the purpose. The first article, section eight, enables Congress to make all laws which may be necessary and proper to effectuate the powers expressly given. But it is obvious, that this merely authorizes the legis¬ lature collectively, not one House separately, to pass certain laws, not mere occasional sentences. And the powers delegated to the United States, being in derogation of the rights of sovereign states, must be construed strictly.’ For the same reasons, the authority to determine the rules of its proceedings (art. 1, sec. 5) cannot be construed to operate beyond the walls of the House, except on its own *members,'

and its officers. It is observable, also, that this authority is coupled with an authority to pun¬ ish its members for misbehaviour, and to expel a member. It is a rule of construction, that the text should be considered in connection with the context ; but the context, viz. , the power to punish and to expel, relates solely to the in¬ ternal polity and economy of the House. The authority is to determine the rules of its pro¬ ceedings, not the proceedings themselves, for these are determined by the constitution itself in the first article. The fifth section of the first article, authorizes the House to punish its mem¬ bers; et ennmeratio unius est exclusio alterius. The power of issuing warrants is manifestly judicial. This may be assumed as an axiom. The constitution ordains, that the judicial power (which is equivalent to all the judicial power) shall be vested in one supreme court, and other inferior courts (art. 3, sec. 1). Thus, the right of the courts to exercise such a power, is exclu¬ sive, and an assumption of it by any other de¬ partment, is an usurpation. Nor can the au¬ thority be inferred from usage and precedent. These must be, either of the two Houses of Congress, the state legislatures, or the British Parliament. On the journals of the House of Representatives, are found the cases of Randal and Whitney, and two others. On those of the

1.— 3 Mass. Rep. 146.

Wheat. (5.

1831

Anderson v. Dunn.

814

Senate, is the case of the editor of the Aurora, &c. Shall we he told that these proceedings were acquiesced in? The want of spirit in the individual to resist oppression, cannot fairly he construed into acquiescence on the part of the 215] public: since that resistance could be made only by the person immediately affected. As to the usage of the state legislatures, it is either under color of their unlimited powers, of express provisions in their constitution, or of the common law and the usage of Parliament. In this case, unlimited powers and express pro¬ vision are not pretended; the penal code of the common law is no part of the federal system. Is, then, the authority incident to legislative bodies? An incident is detined, “a thing nec¬ essarily depending upon, or appertaining to. another that is more worthy, or principal.” So the constitution of the United States (art. 1, sec. 8), when regulating the incidental powefs of Congre.ss, authorizes it to make such law only as maybe “necessary” to effectuate the express powers. Nece.s.sity, then, is the criteri¬ on of incident. But is a power to punish the offer of a bribe beyond the verge of the House necessary to enable Congress to perform its duties? The impunity of the offense being the only possible reason of the necessity, if the of¬ fender may be adequately punished by the courts of justice in the ordinary mode of pro ceeding, the supposed necessity ceases. Bribery of a member of Congress is punishable in the state courts, and in the Circuit Court of the District of Columbia, according to the course of the common law. Redres.s may also be had before the same tribunals, in ciise of the battery or libel of a member; and if the existing reme¬ dies be insufficient, an act of Congress may be made to supply the deficiency. And though the ordinary remedies should not reach every possible case, it is a rule, that “if the 216] words of a statute do not extend to a mischief which rarely occurs, they shall not, by an equitable construction, be extended to that mischief; but it is a casus omissus; and the objects of statutes, are mischiefs, qum frm- quentius aecidant."' It is evident, that the framers of the constitution deemed it more prudent to leave such mere possible mischiefs unprovided for, than to incur a certain evil by vesting an extraordinary and dangerous pre¬ rogative for their suppression.

3. The warrant is illegal on the face of it.

By the fourth article of the amendments to the constitution, it is provided, that “ no warrant shall i.ssue but on probable cause, supported by oath or affirmation.” Thus are prohibited all warrants which do not rest on oath, and on probable cause. But it is no less necessary that the warrant should recite the cause in spe¬ cial and the oath. The constitiUion is not sat- i.sfied with “a cau.se” .so vague and indefinite, as “high contempt and breach of privilege.” When it adopts a term from the common law, it adopts, also, the law regulating its incidents and properties, unless repugnant to that instru¬ ment. Now. what are the incidents and prop¬ erties of a warrant at common law? It is said by Dalton, that ‘ ‘ the warrant ought to contain the special cause and matter whereupon it is granted.”®

1. — Vaugh. 373.

2. — Dalton’s Sheriff, 169.

Wheat. 6.

the Ilou.se, or illegality in the warrant, it is no justification. That it is none in the former case, has long *.since been settled in this

court. ^ As to the latter alternative of the pro¬ position, the constitution, by prohibiting an act, renders it void, if done; otherwise, the prohibition were nugatory.^ Thus, the war¬ rant is a nullity. The rights of Congress on the subject of contempts, have been con.sidered similar, and equal to those of the federal courts. But here we must recur again to the maxim, that when the constitution adopts a term from the common law, it adopts, also, its incidents. At common law, the power to punish contempt is incident to courts. But “ Congress,” and the “ House of Representatives,” being terms un¬ known to the common law, can derive no claims through it. Courts enforce the laws; they must, therefore, be clothed with authority to compel obedience to them; whereas, the legislature is merely deliberative. But, it is asked, are the members to be insulted with im¬ punity, in a manner which will not authorize the interference of a court? If the insolence be merely by words or gestures, not amounting to slander or assault, the genius of our institu¬ tions does not admit of its punishment. Privi¬ lege of Congress is reduced by the sixth section, art. 1, of the constitution, to exemption from arrest, and freedom of speech. From the nat¬ ure of the enumerated privileges, it is evident that the sole object of giving them was to pre¬ vent interruption of the business of the Houses, not to render the person and feelings of mem¬ bers more sacred than those of other citizens. An attempt to *bribe a member may be

made in Maine or Missouri. The Speaker’s warrant may be issued on a mere allegation without oath, commanding the sergeant at arms to arre.st the accused “wherever found,” and bring him to the bar of the House. So that he may be dragged from the extreme of the Union, to be tried by a legislative body. Yet the constitution (art. 3, sec. 2) provides, that “the trial of all crimes shall be by jury; and that such trial shall be held in the state and district where the offense was committed ; ” and, also, (art. 5, amendments,) that “no person shall be held to answer for an infamous crime, except on the presentment or indictment of a grand jury; nor shall be deprived of liberty without due process of law.” And further, that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and dis¬ trict.” It is only necessary to compare the con¬ duct of the House of Representatives, in the case at bar, with these provisions, in order to perceive its gross injustice and illegality.

The Attorney -OeneA'al and Mr. Jones, contra, stated, that the only question before the court was, whether the House of Representatives could exercise the power in question, either as incidental to its legislative, or its judicial capacity.

legislature, no legislative act can be per¬ formed without its concurrence, and there¬ fore an attack upon it, is an attack upon the whole Congress. The necessity of self-

3. — Little v. Barreme, 2 Cranch, 179.

245

318

Supreme Court op the United States.

1821-

defense is as incidental to legislative, as to 219] judicial authority. This power is not a substantive provision of the common law adopted by us; it is rather a principle of uni¬ versal law growing out of the natural right of self-defense belonging to all persons. It is un¬ necessary to resort to the doctrine of construc¬ tive contempts, in order to vindicate the con¬ duct of the defendant as a ministerial officer. He merely executed the judgment of the House, pronouncing the plaintiff guilty of a breach of privilege, and a high contempt. It was con¬ fessedly within the competency of the House to render such a judgment in some cases: such as that of a direct interruption of its proceed¬ ings by open violence within the walls. But from the plea, non constat, what was the nature of the offense committed by the plaintiff. ISTor was it necessary that the plea should set out the facts constituting the contempt. It is suf¬ ficient for the protection of the officer, that the House has jurisdiction to punish contempts, and that it had adjudged the plaintiff guilty of a com empt. The power of punishing contempts is incidental to all courts of justice, and even to the most inferior magistrates, when in the ex¬ ercise of their public functions, and arises out of the absolute necessity of the case, which ren¬ ders it indispensable that they should have such a power.

powers of judicature under the constitution, and the House of Representatives has the ex¬ clusive power of impeachment; which neces¬ sarily involves the authority of compelling the attendance of witnesses, and punishing them for contempt. Even Lord Holt, who was an 220] enemy of the extravagant privileges of Parliament, admits that the power of impeach¬ ment residing in the House of Commons, nec¬ essarily involved the authority of committing the accused, and of punishing contempts. ' The

powers of judging of elections, and of punish¬ ing members for disorderly conduct, necessari¬ ly involves all the incidents of judicature. Nothing appears upon the face of the record to show that it was not in the exercise of these very powei's, or in defense of the admitted privileges of the House, that the warrant is¬ sued. It need not appear on the face of the warrant that the cause out of which the con¬ tempt grew, was within the judicial powers of the House. The mere question between the ministerial officer and the offender, is, whether the warrant was issued by a court of competent jurisdiction, and whether he has pursued the precept in the manner of executing it. In other words, the only question is, whether the House has, in any case, the power of punishing con¬ tempts. If it has jurisdiction, it is a peculiar exclusive jurisdiction, and its exercise cannot be questioned or re-examined elsewhere. The doctrine is settled and established in this court, that the grant of the powers expressly given to Congress in the constitution, involves all the incidental powers necessary and proper to carry them into effect. And the general grant of judicial powers to the courts of the United States, does not exclude the other branches of the government from the exercise of certain portions of judicial authority. The

different departments of the government could not be divided in this exact, artificial manner. They all run into each other. Even the Presi¬ dent, though his functions are principally ex¬ ecutive, has a portion of legislative power; and the Congress is invested with certain portions of judicial power. The whole of this subject has been thoroughly investigated, in two recent cases in England, and the authorities cited on the argument of those cases, renders it unnec¬ essary to repeat a reference to them on the present occasion.®

*It is sufficient to say, that they fully {*222

1.— Regina v. Paty, 3 Lord Raym. 1105.

3.— M’Culloch V. Maryland, 4 Wheat. Rep. 316.

3.— Burdett v. Abbott, 14 East’s Rep. 1 ; Burdett V. Colman, Ib. 163.

In these cases, the pleas by the Spealrer and Ser¬ geant at Arms of the House of Commons .iustified the supposed trespasses under a warrant reciting a resolution of the House that “a letter signed ‘Sir Francis Burdett,’ and a further part of a paper en- titied, ‘Argument,’ in Cobbet’s Weekiy Register, of March 34, 1814, was a libeious and scandalous paper, reflecting on the just rights and privileges of that House: and that Sir Francis Burdett, who had ad¬ mitted the letter and argument to have been print¬ ed by his authority, has been thereby guilty of a breach of the privileges of that House,” and that it was thereupon ordered by the House, that the plaintiff, for his said offense, should be committed to the Tower; and that the Speaker should issue his warrants accordingly. The cases were carried from the Court of King’s Bench to the Exchequer Chamber, where the judgments in favor of the de¬ fendants were affirmed upon the same grounds stat¬ ed by the judges of the K. B. in East’s Rep. The plaintiff. Sir Francis Burdett, having brought a writ of error to the House of Lords, the cause was argued for him by Mr. Brougham and Mr. Court- na.v, in the se-'sion of 1816-1817. After the counsel for the plaintiff in error had been heard. Lord El¬ don (Ch.) proposed to their Lordships that the counsel for the defendants should not be heard, un¬ til the House should have received the opinion of the judgeson the following question, viz.: ‘ Wheth¬ er, if the Court of Common Pleas, having adjudged an act to be a contempt of court, had committed for the contempt under a warrant, stating such ad¬ judication generally,, without the particular cir-

246

cumstances, and the matter were brought before the Court of King’s Bench, by return to a writ of habeas corpus, t he return setting forth the warrn nt, stating such adjudication of contempt generally; whether, in that case, the Court of King’s Bench would discharge the prisoner, because the particu¬ lar facts and circumstances out of which the con¬ tempt arose, were not set forth in the warrant.’ ”

The qviestion being handed to the judges, and they having consulted among themselves for a few minutes. Lord Chief Baron Richards delivered their unanimous opinion that in such a case the Court of King’s Bench would not liberate.

Lord Eldon (Oil.) ; “That this is a case of very great importance none will dispute; but, at the same time, I do not think it a caseof dlflaculty. If I did, I should be anxious to hear the counsel for the defendants, before proceeding to judgment. But in my view of the case, considering it as clear in law, that the House of Commons have the power of committing for contempt; that this was a com¬ mitment for con tempt ; that the general nature of the contempt, if that was necessary, was sufficient¬ ly set forth in the warrant; and being of opinion that the objections, in point of form, have not been sustained, unless any other noble Lord should express a wish to hear the counsel for the defend¬ ants, I shall now move that the judgments in the court below be affirmed.” ;

Lord Erskine. “When this matter was first agita¬ ted, I understood that the House of Commons in¬ tended to pursue a very different course. I was therefore alarmed. I expressed myself, because I felt, with warmth. I have changed none of the opinions I then entertained; I then said that the House of Commons ought to be jealous of such priv¬ ileges as were necessary for its protection. My opin¬ ion is, that these privileges are part of the law of

Wheat. 6.

1881

Anderson v. Dunn.

222

establish the doctrine that a legislative body has, from the necessity of the case, a right to 223] commit persons for contempt, in breach of their privileges; that they are the exclusive .ludges whether tho.se privileges have been violated in the particular instance; and 224] that their decisions upon the subject cannot be questioned in any other court or place.

sary to describe the offense particularly in the warrant, except for the purpose of letting the party see whether it is bailable or not. ' But this was only a warrant to arrest the plaintiff, and bring him before the House; a preliminary proceeding absolutely necessary to exercise any sort of jurisdiction over the matter.

Mr. Justice Johnson delivered the opinion of the court; Notwithstanding the range which has been taken by the plaintiff’s counsel, in the discussion of this cause, the merits of it really lie in a very limited compass. The pleadings have narrowed them down to the simple in¬ quiry, whether the House of Representatives can take cognizance of contempts committed 225] against themselves, under any circum¬ stances? The duress complained of was sus¬ tained under a warrant issued to compel the party’s appearance, not for the actual infliction of punishment for an offense committed. Yet it cannot be denied that the power to institute a prosecution must be dependent upon the power to punish. If the House of Representa¬ tives possessed no authority to punish for con¬ tempt, the initiating process issued in the as¬ sertion of that authority mu.st have been ille¬ gal; there was a want of jurisdiction to justify it.

It is certainly true, that there is no power given by the constitution to either House to punish for contempts, except when committed by their own members. Nor does the judicial or criminal power given to the United States, in any part, expres.sly extend to the infliction of punishment for contempt of either House, or any one co-ordinate branch of the government. Shall we, therefore, decide, that no such power exists?

cited.

It is true, that such a power, if it exists, must be derived from implication, and the genins and spirit of our in.stitutions are hostile to the exer¬ cise of implied powers. Had the faculties of man been competent to the framing of a sys¬ tem of government which would have left noth¬ ing to implication, it cannot be doubted that the effort would have been made by the framers of the constitution. But what is the fact? There is not in the whole of that admirable instrument a grant of .powers which does not draw after it others, not expres.sed, but vital to *t'ieir exercise; not substantive and in-

dependent, indeed, but auxiliary and subor¬ dinate.

The idea is utopian, that government can exist without leaving the exercise of discretion somewhere. Public security again, st the abusfe of such discretion must rest on responsibility, and stated appeals to public approbation. Where all power is derived from the people, and public functionaries, at short intervals, de¬ posit it at the feet of the people, to be resumed again only at their will, individual fears may be alarmed by the monsters of Imagination, but individual liberty can be in little danger.

No one is so visionary as to dispute the asser¬ tion that the sole end and aim of all our insti¬ tutions is the safety and happiness of the citizen. But the relation between the action and the end, is not always so direct and palpable as to strike the eye of every observer. The science of government is the most abstruse of all sci¬ ences; if, indeed, that can be called a science which has but few fixed principles, and practi¬ cally consists in little more than the exercise of a sound discretion, applied to the exigencies of the state as they arise. It is the science of ex¬ periment.

But if there is one maxim which necessarily rides over all others, in the practical application of government, it is, that the public function¬ aries must be left at liberty to exercise the pow¬ ers which the people have intrusted to them. The interests and dignity of those who created them, require the exertion of the powers indis¬ pensable to the attainment of the ends of their creation. Nor is a casual conflict with the i-ights *of particular individuals any reason to

be urged against the exercise of such powers. The wretch beneath the gallows may repine at the fate which awaits him, and yet it is no less

the land, and upon this record there Is nothinpr more than the ordinary proceeding; the Speaker of the House of Commons, like any other subject, putting himself on the country as to the fact, and pleading a Justification in law; for this was not a plea to the jurisdiction, but a plea in bar. This course of proceeding gave rise to the most heart¬ felt satisfaction ; for if the judgment had been ad¬ verse to the defendants, the House would no doubt have submitted. It would be a iibel on the House of Commons to suppose that it would not. Therefore, by this judgment, it appears that it is the law which protects the just privileges of the House of Com¬ mons, as well as the rights of the subject.

The case has been argued with great propriety ; but it was contended that it was not alleged in the warrant that the libel was published by the plaint¬ iff. But it is alleged that the paper was printed by his authority. And if I send a manuscript to the printer of a periodical publication, and do not re¬ strain the printing and publishing of it, and he does print and publish it in that publication, then I am the publisher. The word ‘reflecting,’ standing by Itself, would not be suificiently distinct. But the warrant recites that the letter had been adjudged to be a libelous and scandalous paper, reflecting on

Wheat. 6.

the just rights and privileges of the House of Com¬ mons ; and the meaning there must be, arraigning the just rights and privileges of the House.

I, myselt, while I presided in the Court of Chan¬ cery, committed for contempt, in a case in which a pamphlet was sent to me, the object of which was, by partial representation, and by flattering the judge, to procure a different species of judgment from that which would be administered in the or¬ dinary course of justice. I might be wrong, but I do not think I wa-^. 'I'he House of Commons, wheth¬ er a court or not, must, like every other tribunal, have the power to protect itself from obstruction and insult, and to maintain its dignity and charac¬ ter. If the dignity of the law is not sustained, its sun is set, never to be lighted up again. So much I thought it necessary to say, feeling strongly for the dignity of the law ; and have only to add, that I fully concur in the opinion delivered by the judges.”

The counsel were called in, and informed that the House did not think it necessai'y to hear coun¬ sel for the defendants. And then, without further proceeding, the judgments of the com-t below were affimed. 5 Dow’s Pari. Hep. 165, 199.

247

237

Supreme Court op the United States,

182J

certain, that the laws under which he suffers were made for his security. The unreasonable murmurs of individuals against the restraints of society, have a direct tendency to produce that worst of all despotisms, which makes every individual the tyrant over his neighbor’s rights.

That ‘ ‘ the safety of the people is the supreme law,” not only comports with, but is indispens¬ able to, the exercise of those powers in their public functionaries, without which that safety cannot be guarded. On this principle it is. that courts of justice are universally acknowledged to be vested, by their very creation, with power to impose silence, respect, and decorum, in their presence, and submission to their lawful man¬ dates, and, as a corollary to this proposition, to preserve themselves and their officers from the approach and insults of pollution.

It is true, that the courts of justice of the United States are vested, by express statute provision, with power to fine and imprison for contempts; but it does not follow, from this circumstance, that they would not have exer¬ cised that power without the aid of the statute, or not, in cases, if such should occur, to which such statute provision may not extend ; on the contrary, it is a legislative assertion of this right, as incidental to a grant of judicial power, and can only be considered either as an instance of abundant caution, or a legislative declara- 228 ] tion, that the power of punishing for contempt shall not extend beyond its known and acknowledged limits of fine and imprison¬ ment.

But it is contended, that if this power in the House of Representatives is to be asserted on the plea of necessity, the ground is too broad, and the result too indefinite ; that the executive, and every co-ordinate, and even subordinate, branch of the government, may resort to the same justification, and the whole assume to themselves, in the exercise of this power, the most tyrannical licentiousness.

This is unquestionably an evil to be guarded against, and if the doctrine may be pushed to that extent, it must be a bad doctrine, and is justly denounced.

But what is the alternative? The argument obviously leads to the total annihilation of the power of the House of Representatives to guard itself from contempts, and leaves it exposed to every indignity and interruption that rudeness, caprice, or even conspiracy, may meditate against it. This result is fraught with too much absurdity not to bring into doubt the soundness of any argument from which it is derived. That a deliberate assembly, clothed with the majesty of the people, and charged with the care of all that is dear to them ; com¬ posed of the most distinguished citizens, se¬ lected and drawn together from every quarter of a great nation ; whose deliberations are re¬ quired by public opinion to be conducted under the eye of the public, and whose de¬ cisions must be clothed with all that sanctity 229] which unlimited confidence in their wisdom and purity can inspire ; that such an assembly should not possess the power to sup¬ press rudeness, or repel insult, is a supposition too wild to be suggested. And, accordingly, to avoid the pressure of these considerations, it has been argued, that the right of the respect¬ ive Houses to exclude from their presence, and 248

their absolute control within their own walls, carry with them the right to punish contempts committed in their presence ; while the absolute legislative power given to Congress within this district, enables them to provide by law against all other insults against which there is any ne¬ cessity for providing.

It is to be observed, that so far as the issue- of this cause is implicated, this argument yields all right of the plaintiff in error to a decision in his favor; for, non constat, from the pleadings, but that this warrant issued for an offense com¬ mitted in the immediate presence of the House.

Nor is it immaterial to notice what difficul¬ ties the negation of this right in the House of Representatives draws after it, when it is con¬ sidered, that the concession of the power, if exercised within their -walls, relinquishes the great grounds of the argument, to wit, the want of an express grant, and the unrestricted and undefined nature of the power here set up. For why should the House be at liberty to ex¬ ercise an ungranted, an unlimited, and unde¬ fined power within their walls, any more than without them? If the analogy with individual right and power be resorted to, it will reach no farther than to exclusion, and it requires no exuberance of imagination *to exhibit

the ridiculous consequences which might re¬ sult from such a restriction, imposed upon the conduct of a deliberative assembly.

Nor would their .situation be materially re¬ lieved by resorting to their legislative power within the district. That power may, indeed, be applied to many purposes, and was intended by the constitution to extend to many purposes indispensable to the security and dignity of the general government ; but they are purposes of a more grave and general character than the offenses which may be denominated contempts, and which, from their very nature, admit of no precise definition. Judicial gravity' will not admit of the illustrations which this remark would admit of. Its correctness is easily tested by pursuing, in imagination, a legislative at¬ tempt at defining the cases to which the epithet contempt might be reasonably applied.

But although the offense be held undefina- ble, it is justly contended, that the punishment need not be indefinite. Nor is it so.

*We are not now considering the extent to which the punishing power of Congress, by a legislative act, may be carried. On that sub¬ ject, the bounds of their power are to be found in the provisions of the constitution.

The present question is, what is the extent of the punishing power which the deliberative assemblies of the Union may assume and exer¬ cise on the principle of self-preservation ?

Analogy, and the nature of the case, furnish the *answer — “ the least po.«sible power

adequate to the end proposed ; ” which is the power of imprisonment. It may, at first view, and from the history of the practice of our leg¬ islative bodies, be thought to extend to other inflictions. But every other will be found to be mere commutation for confinement; since commitment alone is the alternative where the individual proves contumacious. And even to the duration of imprisonment a period is im¬ posed by the natiire of things, since the exist¬ ence of the power that imprisons is indispensable to its continuance; and although the legislative

Wheat. 6.

1831

La Conception, the Spanish Consul, Claimant.

331

power continues perpetual, the legislative body ceases to exist on the moment of its adjourn¬ ment or periodical dissolution. It follows, that imprisonment must terminate with that ad¬ journment.

This view of the subject necessarily sets bounds to the exercise of a caprice which has sometimes disgraced deliberative assemblies, when under the influence of strong passions or wicked leaders, but the instances of which have long since remained on record only as historical facts, not as precedents for imitation. In the present fixed and settled state of English institutions, there is no more danger of their being revived, probably, than in our own.

But the American legislative bodies have never possessed, or pretended to the omnipo¬ tence which constitutes the leading feature in the legislative assembly of Great Britain, and which may have led occasionally to the exer¬ cise of caprice, under the specious appearance of merited resentment.

233] If it be inquired, what security is there, that with an officer avowing himself de¬ voted to their will, the. House of Representa¬ tives will confine its punishing power to the limits of imprisonment, and not push it to the infliction of corporal punishment, or even death, and exercise it in cases affecting the liberty of speech and of the press? the reply is to be found in the consideration, that the con¬ stitution was formed in and for an advanced state of society, and rests at every point on re¬ ceived opinions and fixed ideas. It is not a new creation, but a combination of existing materials, whose properties and attributes were familiarly understood, and had been deter¬ mined by reiterated experiments. It is not, therefore, reasoning upon things as they are, to suppose that any deliberative assembly, con¬ stituted under it, would ever assert any other rights and powers than those which had been established by long practice, and conceded by public opinion. Melancholy, also, would be that state of distrust which rests not a hope upon a moral influence. The most absolute tyranny could not subsist where men could not be trusted with power because they might abuse it, much less a government which has no other basis than the sound morals, moderation, and good sense of those who compose it. Un- reasona^ile jealousies not only blight the pleas¬ ures, but dissolve the very texture of society.

But it is argued, that the inference, if any, arising under the constitution, is against the exercise of the powers here asserted by the House of Representatives; that the express 233] grant of power to punish their mem- bers respectively, and to expel them, by the application of a familiar maxim, raises an im¬ plication against the power to punish any other than their own members.

This argument proves too much; for its direct application would lead to the annihila¬ tion of almost every power of Congress. To enforce its laws upon any subject without the sanction of punishment is obviously impossi¬ ble. Yet there is an express grant of power to punish in one class of cases, and one only ; and all the punishing power exercised by Conp-ess in any cases, except those which relate to piracy and offenses against the laws of nations, is de¬ rived from implication. Nor did the idea ever

Wheat. 6.

occur to anyone, that the express grant in one class of cases repelled the assumption of the punishing power in any other.

The truth is, that the exercise of the powers given over their own members, was of such a delicate nature, that a constitutional provision became necessary to assert or communicate it. Constituted, as that body is, of the delegates of confederated states, some such provision was necessary to guard against their mutual jeal¬ ousy, since every proceeding against a repre¬ sentative would indirectly affect the honor or interests of the state which sent him.

In reply to the suggestion that, on this same foundation of necessity, might be raised a su¬ perstructure of implied powers in the execu¬ tive, and every other department, and even ministerial officer of the government, it would be sufficient to observe, that neither analogy nor precedent would support the assertion *of such powers in any other than a

legislative or judicial body. Even corruption anywhere else would not contaminate the source of political life. In the retirement of the cabinet, it is not expected that the execu¬ tive can be approached by indignity or insult; nor can it ever be necessary to the executive, or any other department, to hold a public de¬ liberative assembly. These are not arguments; they are visions which mar the enjoyment of actual blessings, with the attack or feint of the harpies of imagination.

As to the minor points made in this case, it is only necessary to observe, that there is noth¬ ing on the face of this record from which it can appear on what evidence this warrant was issued. And we are not to presume that the House of Representatives would have issued it without duly establishing the fact charged on the individual. And, as to the distance to which the process might reach, it is very clear that there exists no reason for confining its op¬ eration to the limits of the District of Colum¬ bia; after passing those limits, we know no bounds that can be prescribed to its range but those of the United States. And why should it be restricted to other boundaries? Such are the limits of the legislating powers of that body; and the inhabitant of Louisiana or Maine may as probably charge them with bribery and corruption, or attempt, by letter, to induce the commission of either, as the in¬ habitant of any other section of the Union. If the inconvenience be urged, the reply is obvious; there is no difficulty in observing *that respectful deportment which will

render all apprehension chimerical.

Judgment affirmed.

Cited — 2 Cranch C. C. 391; 1 Wood. & M. 440.

[prize.]

LA CONCEPTION.

The Spanish Consul, Claimant.

Where a capture is made of the property of the subjects of a nation in amity with the United States, by a vessel built, armed,equipped, and own¬ ed in the United States, such capture is iilegal, and the property, if brought within our territorial limits, will be restored to the original owners.

249

235

Supreme Court op the United States.

1821

Where a transfer of the capturing vessel in the ports of the belligerent state, under whose flag and commission she sails on a cruise, is set up in order to legalize the capture, the Ixma fldes of the sale must be proved by the usual documentary evi¬ dence, in a satisfactory manner.

Appeal from the circuit Court of South Carolina.

This was an allegation filed in the District Court of South Carolina by the Vice-Consul of His Catholic Majesty, claiming restitution of the ship La Conception and cargo, as the prop¬ erty of Spanish subjects to him unknown, which had been illegally captured by the armed ship La Union, sailing under the fiagof Buenos Ayres, and pretending to have a commission or letter of marque from that government, but actually built, equipped, armed, and manned in the United States. A claim was interposed 236] by one Brown, claiming the property as having been taken by him, as commander of La Union, on the high seas, under a com¬ mission from the government of Buenos Ayres, authorizing him to capture the property of the subjects of Spain. The District and Circuit Courts decreed restitution of the property to the captors, no sufficient evidence being produced of the capturing vessel having been equipped, or having augmented her force in the ports of the United States. On appeal to this court, farther proof was taken, showing conclusively, that the capturing vessel was originally built, owned, and equipped in this country, and after proceeding to Buenos Ayres, and sailing from that port on a cruise, had touched at the port of New Orleans, and there illegally augmented her force, since which, the capture in question was made. This evidence was attempted to be repelled on the part of the captors, by testi¬ mony tending to show a transfer of the capt¬ uring vessel at Buenos Ayres to domiciled sub¬ jects of that country, and that the subsequent augmentation of her force at New Orleans, if any, was very trifling, and only amounted to a replacement of her former equipment.

The Attorney- General and Mr. Hopkimon.iov the appellant and claimant, the Spanish consul, argued, that the original owners were entitled to restitution, according to the uniform series of decisions in this court, upon the ground that the capturing ship was built and equipped in the United States, with the intention of cruising against the subjects of Spain, in violation of our neutrality, and actually belonged to citi- 237] zens of the United States, when the present capture was made; or had illegally augmented her force in our ports, previous to the capture.' That the pretended transfer at Buenos Ayres was evidently colorable, and was not proved by the production of the bill of sale, or any of the other documentary evidence usual¬ ly expected by maritime courts, to establish a change of this species of property. That the enlistment of additional seamen to the crew at New Orleans, being proved, the onus was, thrown back upon the captors, to show that the persons so enlisted were subjects of Buenos Ayres, transiently within the United States."

1.— The Alerta, 9 Cranch. 359 ; The'Dlvlna Pastora, 4 Wheat. Rep. ^98 ; The Estrella, 4 Wheat. Rep. 298 ; La Amistad de Rues, 5 Wheat. Rep. 31^ ; The Hello Corrunes, ante, p. 152.

2.— The Estrella, 4 Wheat. Rep. 298.

250

Mr. Winder, contra, insisted, that it must be a clear case of the violation of our neutral rights, or the court would not interfere to re¬ store a capture made under a commission from a sovereign state, and that the onus probandi for this purpose was on the Spanish claimant.® We have an unquestionable right to build ships for sale, and to export any kind of contraband subject to the risk of capture. And even if a ship be expressly built for war, it may be sold to a belligerent, and afterwards equipped in his own ports to cruise against his enemy. ‘‘ Here the purchaser *was actually domiciled

at Buenos Ayres, and there is nothing to im¬ peach the bona fides of the transaction. He then sailed again from Buenos Ayres on a cruise, and the alleged augmentation of the' crew at New Orleans was, in effect, nothing but a re¬ placement of the original force, the vessel hav¬ ing lost by desertion nearly the same number of men which she acquired by enlistment. Such a replacement, this court has already determin¬ ed not to afford a ground for restitution.® It is true, that the case cited was under the French treaty of 1778. But the 19th article of that treaty provides nothing* more than a right of asylum and hospitality, the same as is enjoyed by the South American cruisers in our ports, under the President’s instructions.

The counsel on both sides also argued on the same grounds which are slated in a case of the Bello Corrunes, ante, p. 155, and which it is not thought necessary to repeat.

Mr. Justice Story delivered the opinion of the court :

In this case, if the cause had stood solely up¬ on the evidence before the Circuit Court, we should have no difficulty in affirming its decision. But upon the new proofs which have been since taken, and are now pro- produced to this court, it is apparent that the capturing vessel was originally built.equipped, manned, and armed in the United States for a cruise, being owned by citizens of this country, and *sailed with the intent of cruising

against Spain. It is true that she went to Buenos Ayres, and sailed under the colors of that government on a second cruise, during which this capture was made; but, there is no satisfactory evidence that the American owner¬ ship ever ceased, or that there was a real, bona fide sale at Buenos Ayres. If such a sple had really taken place, it was perfectly in the power of the captors to have proved it, in the clearest manner. A bill of sale is the customary and universal document by which tfie ownership of vessels is evidenced; and the want of any docu¬ ment of this nature, or of any direct and posi¬ tive evidence of an actual sale, leaves no doubt in the mind of the court, that no such sale ever was made. The consequence is, that the capt¬ uring vessel must still be considered as owned in the United States; and, according to the de¬ cisions which have already been made, the capt¬ ure was illegal, and the property must be ^re¬ stored to the original Spanish owners.

Sentence reversed. ■

Cited— 2 Wood. & M. 540, 541.

3. — La Amistad de Rues, 5 Wheat. Rep. 385.

4. — The Alfred, 3 Dali. 387.

5. — Moodle V. The Phoebe Ann, 3 Dali 319.

Wheat. 6.

1821

WiLUNKS V. Hollingsworth et al.

240

240*] [^COMMON LAW.]

WILLINKS V. HOLLINGSWORTH et al.

H. and others, merchants In Baltimore, consign¬ ed a vessel and cargo to W. and others, merchants in Amsterdam, with instructions to them respect¬ ing her ulterior destination, which showed, that on thefaiiure of getting a freight to Batavia, or of selling the vessel at a price limited, she was to pro¬ ceed to St. Petersburg, and there take in a return ca,rgo of Russian goods for the United States, but with instructions to the master committing to him the managementoftheulterior voyage. Nofreight to Batavia could be obtained, and the vessel could not be sold for the price limited at Amsterdam; and W. and others, purchased in Amsterdam, with the concurrence of the ma.ster, a return cargo of Russian goods, partly with the money of H. and others, and partly with money advanced by themselves. On the return of the vessel to Baltimore, H. and others, objected to the purchase of this cargo in Amsterdam, as being contrary to express orders, and gave notice to VV. and others, of their determination to hold them responsible tor all losses sustained in consequence of this breach of instructions: but received the goods and sold them. W. and others brought an asn~umpsit against H. and others, to recover from them the moneys ad¬ vanced. I'he declaration contained the three usual money counts. Held, Ist. That the plaintiffs had a demand in law against the defendants, which could be maintained in this form of action. 2d. That whether the plaintiffs could, or could not, be made responsible in any form of action which might be devised for the possible loss resulting from the breaking up of the intended voyage to St. Petersburg, the defendants were not entitled to a deduclion from the plaintiffs’ demand, for the amount of such loss.

This was an action of assumpsit brought in the Circuit Court of Maryland, by the plaintiffs, who were merchants of Amsterdam, to recover from the defendants, merchants of Baltimore, a sum of money advanced by the 241] plaintiffs in Amsterdam, for the cargo of the Henry Clay, a vessel belonging to the defendants, which had been consigned by them to the plaintiffs, with an outward cargo, and with orders respecting her ulterior destination, which showed, that on the failure of getting a freight to Batavia, or of selling her at Amster¬ dam, she was to go to St. Petersburg, and there take in a return cargo of Russian goods for the United States. The plaintiffs purchased in Amsterdam, with the concurrence of the master, a return cargo for the Henry Clay, part¬ ly with the money of the defendants, and partly with money advanced by themselves. On her arrival at Baltimore, the defendants objected to the purchase of this cargo in Amsterdam, as being contrary to express orders, and immedi¬ ately gave notice to the plaintiffs of their dis¬ approbation of the transaction, and of their determination to hold them responsible for all losses sustained in con.sequence of this de¬ parture from instructions. They, however, re¬ ceived the cargo, and sold it.

The declaration contained three counts; The first, for money lent and advanced to the de¬ fendants; the second, for money laid out and •expended for their use ; and the third, for money received by them for the use of the plaintiffs.

On the trial of the cause in the Circuit Court, the defendants prayed the court to instruct the jury, that upon the whole evidence, which is spread on the record, “the plaintiffs have not any demand in law against the defendants which can be maintained in this action ; but 242] that, if they have, the defendants are ■entitled to a deduction from the same, of the Wheat. 6.

amount of the lo.ss which the jury shall find the said defendants sustained, by reason of the alteration aforesaid, in the destination to St. Petersburg, of the .said .ship, and the loading her as aforesaid at Amsterdam.” On this motion the judges were divided in opinion, and the division certified to this court.

The evidence principally consisted of two letters, dated the 29th of April, 1815, written by M’Kim, one of the defendants, addressed, the one to the plaintiffs, the other to the mas¬ ter of the Henry Clay.

That to the plaintiffs was as follows:

“Gentleimn — The owners of the ship Henry Clay having appointed me the ship’s husband for this voyage, and from the introduction of our mutual "friends, Robert Gilmor & Sons, I have been directed by the owners to consign the ship to your house, also that part of her cargo which I consider belongs to her owners jointly, agreeable to the invoice, amounting to $1,363.40.

“You will find, that the owners of the .ship have shipped tobacco on their separate accounts; the proceeds are to be placed to the credit of John M’Kim, Jun., to remain a fund for the purpose of loading the ship if she should pro¬ ceed to St. Petersburg. The freight and prim¬ age, and also Captain Charles Gantt’s bills, which are now inclo.sed, drawn on you for the sura of 6,550 guilders, are to constitute part of the funds for the loading of the ship.

“Our wish is, in the first place, if a good freight or charter can be had for the ship to Batavia, that *she should proceed there

in preference to any other place.

“And, second, if the sliip can be sold for £8,000 sterling, you will dispose of her rather than send her to St. Petersburg.”

The letter then proceeds to give such a de¬ scription of the ship as might enhance her val¬ ue in the estimation of a purchaser, and then adds, “if the Henry Clay proceeds to St. Pet¬ ersburg, we must depend on your placing funds there to purchase a cargo of iron, hemp and other goods. Jf the funds we have placed in your hands should fall short of loading her, Messrs. Gilmor & Sons have written you to make us any advances that may be deficient. Agreeable to the estimate, what we have order¬ ed from St. Petersburg, will not exceed $45,- 000, and you may rest assured, that any sum advanced us will be remitted to you as soon as we know the amount.”

The letter to the master was in these words;

'‘Dear i8m’— -The ship Henry Clay is given you in charge, that you proceed with all possi¬ ble despatch for Amsterdam, and it is recom¬ mended that you sail north-about at this fine season of the year. The owners of the ship have the greate.st confidence in your good man¬ agement; that you will take care that your dis¬ bursements in every foreign port may be as moderate as possible; that you will purcha.se every article yourself on the lowe.st tei'ms that may be required for the ship; that you will use the greatest economy in all your expenditures. After your arrival at Amsterdam, your first ob¬ ject is a *good charter for Batavia, and

if what you know to be a good charter is ob¬ tained, you will, of course, accept it in prefer¬ ence to anything else.

251

244

Supreme Court of the United States.

1821

“And if a good freight cannot be had to Batavia, and the ship can be sold for £8,000 sterling, you have orders to sell her, and vre confidently expect that she will bring more, as she costs upwards of £14,000 sterling, and never made one voyage. I hope that every ex¬ ertion will be made to proceed to St. Peters¬ burg immediately, if you do not go to Batavia, and the ship cannot be sold ; as the season is far advanced, no time must be lost. The same industry must be used to get away from St. Petersburg, for fear that you might be detain¬ ed there all the winter. The owners must also depend on your attention at St. Petersburg, that the hemp is good that you receive.” The letter then gives instructions respecting pilots, protests, &c., and then adds, “Messrs. Willinks will of course endeavor to consign the ship to a friend of theirs at St. Petersburg, but we have gi-eat confidence in a house recommended by Mr. Cumberland D. Williams — Messrs. Meyer & Buxner — and we could wish you to con¬ sign the ship to them. If any freight should offer from St. Petersburg to Baltimore, of course you will accept of it, and if any goods for Philadelphia or New York should be there, you can inform the shippers how easy they may be .sent,” &c.

It was also proved, that no freight to Batavia could be obtained, and that the vessel could not be sold at the price limited.

245] Mr. Harper and Mr. Winder, for the plaintiffs, argped, (1) That the present ac¬ tion could be maintained by the plaintiffs for the moneys advanced by them at Amsterdam, for the purchase of the return cargo received by the defendants at Baltimore. Even supposing that the defendants might have refused to receive it, yet having actually sold it, and received the proceeds of the sale, this raises an assumpsit to pay the money thus received. In the case of Manella v. Barry, * foreign merchants, sent by their general agent, written orders to their fac¬ tor in this country, to purchase goods here up¬ on their account, but to ship the goods in the name of the factor, and by those orders the fac¬ tor was referred to the verbal communications of the general agent, who undertook to order the goods to be shipped in the name of another person, and declared that he had authority from the foreign merchants thus to control and vary their orders; the factor was held to be justified in obeying the new orders of the general agent, though contrary to the first written orders. So, here the consignment of the ship to the plaint¬ iffs was limited to her transactions at Amster¬ dam, and the control of her ulterior movements was left to the master. The learned coun.sel here entered into a minute examination of the correspondence, to show that this was its im¬ port.

from the plaintiffs’ demand of the amount of the supposed loss sustained by the alteration of 246*1 the intended destination *of the vessel to St. Petersburg, and the loading her at Am¬ sterdam. This question depends not on the English statute of set-off, but on the act of Assembly of Maryland, of November, 1785, c. 46, s. 7. This act provides, “That in case any suit shall hereafter be brought on any judg-

1.— 3 Cranch, 41.5.

252

ment, or on any bond, or other writing sealed b,y the party, and the defendants shall have any demand or claim against the plaintiff, up¬ on judgment, bond, or other instrument under seal, or upon note, agreement, a^sumpdt, or ac¬ count proved, as by this act is allowed the de¬ fendant, or otherwise according to law, shall be at liberty to file his account in bar, or plead discount to the plaintiff’s claim, and judgment shall be given for the plaintiff for the sum only which remains due after just di.scount made; provided the sum which shall remain due after such discount be sufficient to sup¬ port a judgment in the court where the cause may be tried, according to its established jurisdiction ; and in all cases of suits upon sim¬ ple contracts, the defendant may file an ac¬ count in bar, or plead discount of any claim he may have against the plaintiff, proved as aforesaid, or otherwise proved according to law, which may be of an equal and superior nature to the plaintiff’s claim, and judgment shall be given as aforesaid.” Unliquidated damages cannot be admitted by way of discount, ac¬ cording to the very letter of the law, and the uniform decisions of the local courts of Mary¬ land. But even the English statute has receiv¬ ed the same construction. ^ Damages for a *breach of the implied contract of an

agent are, and nece.ssarily must be, unliquidat¬ ed. If, then, such damages cannot be set off under the statute, neither can they be admitted incidentally, by way of deduction, upon the equitable principles of an action for money had and received. It would be an evasion of the law to permit such an equitable deduction, which sounds rather in tort than contract. The policy of the law is to prevent two distinct, i.ssues, involving controverted questions, from being tried at the same time, thus confounding the simplicity of actions and of proceedings in a court of law.

Mr. Pinkney and Mr. D. B. Ogden, contra, (1) insisted, that the action could not be main¬ tained by the plaintiffs, there having been a manifest breach of instructions on their part, not justified by the pretended approbation of the master. (2) The defendants have a right to a deduction for the lo.ss sustained by them in breaking up the intended voyage to St. Petersburg. No part of tlie money, for which the action is brought, can be said to be receiv¬ ed to the use of the plaintiffs, which, by the very nature of their claim, ought in conscience to be applied to the indemnity of the defend¬ ants against the breach of contract which orig¬ inated the plaintiffs’ demand. The claim of the plaintiff's arises from a breach of their duty to the defendants. This breach of duty forced the money in question into the hands of the *defeudants. If the plaintiffs should

obtain a judgment for the whole of this mon¬ ey, it cannot be doubted that chancery would enjoin execution until the extent of the in¬ jury inflicted upon the defendants by the acts which produced the judgment could be ascer¬ tained by a jury. And surelj' in this action for money had and received, a court of law will proceed with the same view, if the exist¬ ence of the defendants’ right to complain is as-

•

there cited.

Wheat. 6>

1831

WiLLiNKs Hollingsworth et al.

348

certainable (although the exact quantum of the injury is not) by the same evidence, and through the same circumstances, which prop¬ erly belong to the case of the plaintiffs. The acknowledged nature of the action for money had and received, will otherwise cease, and it will differ in nothing from any other form of action. If we are not to inquire in this action, how, and under what circumstances money was received, in order that we may determine whether, ex aquo et bono, the defendants may retain the whole, or any part of it ; and if noth¬ ing can prevent a recovery of the whole, but a plea of discount, or a notice of set-off, or such other defense as in ordinary action may be competent, the character given in the books of the action for money had and received, is a perfect delusion. The case of Dale v. Sollet' goes the whole length of this doctrine. The deduction there claimed might, perhaps, have been used as a discount or set-off under the statute ; although as the claim was not a liqui¬ dated one, it probably could not; but at any rate it was not so used, and consequently, as a 249] discount or set-off, no advantage could be taken of it at the trial. Why, then, was it allowed in that case? Because of the equitable nature of the plaintiff’s action, and of the inti¬ mate connection between the claim and the de¬ fense, out of which arose the conclusion that the defendant might retain, or stop so much of the money, although it was in fact the plaint¬ iff’s money which he received, and although there was no precise contract that it should be stopped out of the money received. The right in that case to s]op a reasonable compensation (which the parties had not defined) out of the whole sum which had come to the defendant’s possession, was exactly such a right as we now insist upon. It stood, as ours does, upon the qualities of that sort of suit which the plaintiff had instituted, and upon the union of the claim and the defense. The defense, indeed, was less complicated in that case than it is in the present one; but so, too, was the plaintiff’s de¬ mand. And, besides, a defense is not the less a good defense, or an examinable defense, because it does not depend upon a single fact, or does de¬ pend on many facts. A jury can deal with it, nevertheless, and does deal with such defenses everyday; and there would be a defect of justice if they did not. The defense in this case rests, incontestably, upon contract, as it did in that. The deduction claimed was in that, as in this, unliquidated in amount. The right to the de¬ duction arose in that, out of the whole circum¬ stances of the case. It does so equally in this. The amount was, in that case, as well as in this, part of the case itself, as respected the de¬ mand of the plaintiff. Evidence was necessai-y 230] on the part of the defendant, to ascer¬ tain there the qit,antum of the deduction, as much as it is here. What case could the plaint¬ iffs in this cause have shown upon any of the counts in their declaration without exposing, or letting in Rn exposition, of the whole mat¬ ter on which the defendants rely ? Of neces¬ sity, the entire transaction was before the jury, and it is upon that, as in Dale v. Sollet, that we contend for the admissibility of a defense which the entire transaction brings under the

1.— 4 Burr. 2133.

Wheat. 6.

notice of the court and jury. And it should seem to be monstrous, that when the whole is regularly and necessarily pre.sented, and the result is that the defendants ought, in con¬ science and equity, to be permitted to retain an ascertainable part of the money received by them for their own use, they should be turned round to a cross action against persons who appear in their writ to be foreigners, and are not therefore amenable to our judicatures, or that (being probably remedyless at law, if they are compelled to part with the whole of the money in their hand.s) they should be driven into chancery for an injunction upon grounds of equity, equally available, as we are taught by the authorities, in an action for money had and received. The cross action, to which the other side refer us, must, in truth, try the present action over again; and a verdict for the present defendants, in such an action, could scarcely be reconciled with a verdict in this cause for the whole amount of the plaint¬ iffs’ claim. A cross action, which is to un¬ ravel the action now sub judice, and which upon the same circumstances is to establish that the present plaintiffs *ought not

to have what it is now contended they ought to have, seems to be supererogation at least. When a cross action is unavoidable, the neces¬ sity must be submitted to; and it is unavoid¬ able where the matters of inquiry are not com¬ bined in their nature. But, where so com¬ bined, an action for money had and received, opens the entire investigations, and can do am¬ ple justice without other assistance. Indeed, it cannot do justice at all on such occasions without exhausting the whole investigation. And to affect to administer equity by shutting out one-half of the real case (upon which the equity of the other half depends), would be a mere mockery. Cross actions are always avoid¬ ed when it is possible ; and here it is not only possible, but absolutely required by the facts.

Mr. Chief Justice Marshall delivered the opinion of the court, and after stating the facts, proceeded as follows :

On the first branch of the question certified from the Circuit Court, no doubt can be enter¬ tained. The defendants having received the cargo of the Henry Clay, and sold it, are ac¬ countable for the proceeds, although the cargo should be considered as the property of the plaintiffs. Whether the defendants are liable for the moneys actually advanced in Amster¬ dam, or for the net amount of sales in Balti¬ more, considering the goods as the property of the plaintiffs, still they are liable for some¬ thing; and, of consequence, the action is sus¬ tainable.

*In deciding on the second branch

of the instructions which were required, it be¬ comes material to examine the orders which were carried out by the Henry Clay on her voyage from Baltimore to Amsterdam, con¬ tained in the letters of the 25th of April, the one to the plaintiffs, the other to the master.

It is admitted, that no freight to Batavia could be obtained, and that the vessel could not be sold at the limited price ; consequently, the only deviation from orders alleged by the defendants is, the purchase of the Kussian goods for the return cargo at Amsterdam, in-

253

252

Htjpreme Court of the United States.

1821

stead of sending the Henry Clay to St. Peters- burg.

That the orders of the defendants to send their ship to St. Petersburg, in the event which had occurred, were positive; and that no au¬ thority was given to purchase her return cargo at Amsterdam, under any circumstances, are too apparent for controversy. That this pur¬ chase, thus made without authority, whether with, or without, the consent and concurrence of the master, must have been made at the risk of the plaintiffs, is also too clear for argument. But the liability of the plaintiffs for any loss which the defendants may have sustained by the breaking up of the voyage to St. Peters¬ burg, depends on the question whether the control of that voyage was committed to them, or to the master. In considering this question, it is proper to take into view all the instruc¬ tions which were given, and to compare the two letters written by the defendants with each other.

In the commencement of the letter written by 253] Mr. M’Kim, on the part of the defend¬ ants, he says: “I have been directed by the owners to consign the ship to your hou.se, also that part of the cargo which I consider belongs to the owners jointly.”

Whether this consignment was limited to the transactions in Amsterdam, or extended to any subsequent voyage in which the Henry Clay might be directed to engage, depends on other parts of the letter.

Mr. M’Kim then proceeds to direct, that cer¬ tain parts of the outward cargo should "re¬ main as a fund for the purpose of loading the ship, if she should proceed to St. Peters¬ burg.”

These orders are precise and explicit, with respect to the funds which are to remain in the hands of the plaintiffs for the purchase of the cargo in St. Petersburg, but are silent respect¬ ing any agency of the plaintiffs in making that purchase.

After communicating the desire of the de¬ fendants, that a freight should be obtained for Batavia, the letter proceeds to say : ‘ ‘ And sec¬ ond, if the ship can be sold for £8,000 ster¬ ling, you will dispose of her rather than send her to St. Petersburg.”

This part of the letter may indicate, that in some other part of it, might be found an ex¬ press order to send the Henry Clay to St. Peters¬ burg, if the primary objects of the defendants should be unattainable, but does not in itself amount to such express order. The writer does not say, "we request you, if the vessel cannot be sold, to send her to St. Petersburg;” but, "you will dispo.se of her, rather than .send her to St. Petersburg;” as if there were some 254] authority not communicated by these words to which they have allusion. There is no such authority, unless it be implied in the general consignment of the vessel.

That consignment is completely satisfied by the agency which was to be exercised in Amster¬ dam. If it was designed to extend it to the eventual voyage to St. Petersburg, the Mes.srs. Willinks would naturally expect to find some instructions respecting that voyage; respecting the articles of which the cargo was to consist, and their conduct in the purchase of them. But 254

they could find no such instructions. In a sub¬ sequent part of the letter, Mr. M’Kim states the estimated value of the cargo he had order¬ ed, and is explicit in his request, that they would advance the necessary funds for laying it in, should those placed in their hands be in- .sutficient; but he is entirely silent with respect to their having any other agency in the voyage.

It was impossible for these gentlemen to read this letter without, at least, doubting their power to interfere further with respect to the voyage to St. Petersburg, than to advance the money which might be required for the cargo to be purchased at that place. The letter con¬ tains all the information, and all the power which was necessary for this purpose, but con¬ tains neither information nor power, for any other purpose.

It was natural for the Messrs. Willinks to require farther information on this subject, and to seek it from the master. He could have no motive for withholding his letter of in.struc- tions from them, and in that they would find, that the management of the *voyage

w’as committed to him, and that the utmost confidence was reposed in his intelligence and integrity. " I hope,” says M’Kim, "that every exertion will be made to proceed to St. Peters¬ burg immediately, if you do not go to Batavia, and the ship cannot be sold.” The.se exertions were to be made by the ma.ster; he was to pro¬ ceed immediately to St. Petersburg; and as no reference is here made to the Messrs. Willinks, the fair inference seems to be, that he was ex¬ pected to proceed, not in consequence of any orders he should receive from them, but in con¬ sequence of the orders he had received from the owners. “ The same industry,” he is told,

‘ ‘ must be used to get away from St. Peters¬ burg.” The letter then adds, "the owners must also depend on your attention at St. Petersburg, that the hemp is good that you re¬ ceive.”

But the part of the letter which seems to be conclusive on this point, is that which relates to the consignment of the ship. " The Messrs. Willinks,” says the writer, "will of course en¬ deavor to consign the ship to a friend of theirs at St. Petersburg, but we have great confidence in a house recommended by Mr. Cumberland D. Williams — Messrs. Meyer & Buxner — and we wish you to consign the ship to them.”

The owners, then, did not suppose that they had empowered the plaintiffs to order the ship to St. Petersburg. They did not suppose that their original consignment of the Henry Clay to the Messrs. Willinks, implied a control over her after the transactions at Amsterdam should be terminated. Had *8uch a control

e.xisted, those gentlemen would not have con¬ signed her to one of their friends. But these words show couclmsively, that the defendants themselves directed the consignment of the ship from Amsterdam to St. Petersburg, and in executing their orders, the master is not mere¬ ly directed to proceed without consulting the Messrs. Willinks; he is directed to disregard their advice should it be offered.

The plaintiffs could not compare this letter with that addressed to themselves, without per¬ ceiving that, with respect to the voyage to St. Petersburg, every order was given directly to

Wheat. 6.

1821

WiLLiNKS V. Hollingsworth et al.

256

the master without reference to them, further than to show that their interference, witii re- sjKJCt to the consignment of the ship, was to be disregarded; and that their agency was confined to advancing the necessary funds for the pur¬ chase of the return cargo.

Both the master and the Messrs. Willinks appear to have acted on this construction of their respective powers. The correspondence between them contains no indication of an opin¬ ion in either, that the voyage to St. Petersburg depended on the orders of those gentlemen. The master does not require their orders, but asks tlieir advice; they do not attempt to or¬ der, they only advise. This advice may have been dictated by their be.st judgment, or may have been dictated by a view to personal inter¬ est; still it is mere advice, and was both given and received as advice.

The conduct of the parties, then, is full proof of the opinion each entertained of the authority of each; and the first letters written after they 257] had met in Amsterdam, .show that free communications had taken place between them. In a letter of the 19th of .June, addre.ssed to Captain Gantt, the Messrs. Willinks sa}^: “We have not received yet the promised note of the Russian goods that would be wanted for the Henry Clay.” And in the captain’s letter from the Helder, of the 18th of June, he says: “ Here¬ with, I annex you a copy of the order for Rus¬ sian produce, which the owners of the Henry Clay wish to constitute her return cargo.”

These letters strengthen the probability, that in the verbal communications which were made at Amsterdam, the captain had stated his orders relative to the voyage to St. Petersburg; at any rate, they show that the note for the cargo which had not been transmitted to the Me.ssrs. Willinks, had been entru.sted to him. There is an expression in the last letter of the plaintiffs to the defendants, which seems to have some bearing on the question, whether the captain had communicated to them his letter of in¬ structions. They say: “You cannot expect, gentlemen, that we shall enter here into all the details of this business, which has been con¬ ducted by us, bona, fide, with a view to your greatest benefit and advantage, faithfully re¬ lying on your promi.ses, and considering the incomplete state of your instructions to us, that your captain was furnished with more particu¬ lar orders.”

There is a vagueness, in these expre.ssions, ari.sing, probably, from the unskillfulness of the, translation, if they were not written in our 258] language, which leaves it, in some measure, uncertain, whether the plaintiffs meant to assert, that the captain was furnished with more particular orders, or that they in¬ ferred this fact from the incomplete state of the in.structions to themselves. If the case depend¬ ed entirely on the question, it might, perhaps, be proper to refer to the original ; but we do not think that the right of the defendants to the deduction they claim from the demand, depends entirely on the fact that their orders to their captain were shown to the plaintiffs. Their letter to the plaintiffs was at best equivocal ; and any evidence showing that the construction which the plaintiffs put on that letter, con¬ formed to the intention of the defendants, will

Wheat. 6.

justify the plaintiffs, although that evidence was not in their possession pending the trans¬ action. The defendants cannot be permitted to say, “It is true, we did not intend to con¬ sign the Henry Clay to you, farther than was necessary to your agency in Amsterdam. We did not intend to give you any control over her voyage to St. Petersburg. We had committed that whole subject to our captain, and had given him precise orders respecting it. We had even gone so far as to direct him to disregard your con.signment of the vessel, should you endeavor to make one. But you did not see these orders, and we will, therefore, make you responsible for not having understood our letter to you, as creating a duty which we did not intend it should create.” This, certainly, can¬ not be permitted. As little can they be per¬ mitted to charge the Messrs. Willinks. in con¬ sequence of the *advice they gave, with

the profits which might possibly have been made on the voyage to St. Petersburg. Al¬ though the orders were broken with their ad¬ vice, .still they were broken by the master, to whom their execution was confided, not by the Me.ssrs. Willinks. to whom their execution had not been confided.

Were it even possible that the Me.ssrs. Wil¬ links could be made responsible in any foi’m of action which could be devised, for the pos.sible loss resulting from the breaking up of the voyage to St. Petersburg, they cannot, we think, be made responsible in this. Having loaded the Henry Clay at Am,sterdam, clearly without authority, the cargo was shipped at their risk. The defendants might have refused it altogether. But they have sold it and re¬ ceived the money. This creates an assumpdt to pay the money received. This action, then, so far as respects the count for money received by the defendants to the plaintiffs’ use, is founded on the transactions in Baltimore; and, were it even possible, which we are far from admitting, that the defendants could be allowed to make a deduction of this supposed loss,- from the sum to be recovered on the count for money laid out and expended to their use, provided that count could be supported, yet they can¬ not be allowed to make that deduction from the sum to be recovered on the count for money had and received to the use of the plaintiffs, for goods sold as the goods of the plaintiffs.

*CBRTiFiCATB.-This causc came on to

be heard on the transcript of the record of the Circuit Court, for the fourth Circuit and Dis¬ trict of Maryland, and on the question on which the judges of said court were divided, and was argued by counsel. On consideration whereof, this court is of opinion, that the plaint¬ iffs have a demand in law against the defend¬ ants, which can be maintained in the action now depending in the Circuit Court, and that the defendants are not entitled to a deduction from the same for the amount of any loss which may have been sustained by them by reason of the alteration in the destination of the ship Henry Clay to St. Petereburg, and the loading her at Amsterdam. Which opinion is directed to be certified to the Circuit Court.

255

260

Supreme (Jourt op the United States.

18»1

[practice.]

GKEEN WATKINS.

In real or personal actions, at common law, the death of parties, before judgment, abates the suit ; and it requires the aid of some statutory pro¬ vision, like that of the 3l8t section of the judiciary act of 1Y89, c. 30 to enable the suit to be prosecut¬ ed by, or against the personal representative or heir of tlie deceased, where the cause of action survives. , ,

In writs of error upon judgments already ren¬ dered, in jiersonal actions, if the plaintiff in error dies before assignment of errors, the writ abates at common law ; but if, after assignment of errors, the defendant may join in error, and proceed to 261*] get the j udgment affirmed, ♦if not erroneous, and may then revive it against the representatives of the plaintiff.

But a writ of error, in personal actions, does not abate by the death of the defendant in error, whether it happen before or after errors assigned ; and the personal representatives may not only be admitted voluntarily to become parties, but a scire facias may issue to compel them.

By the rules of this court, if either party, in real or personal actions, die, pending the writ of error, his representatives in the personalty or realty, may voluntarily become parties, or may be com- elied to become parties, in the manner prescribed y the rule.

Mr. B. Hardin, for the defendant in en-or, moved to dismiss the writ of error in this case, which was a real action, upon a suggestion of the death of the demandant and plaintiff in error, pending the proceedings in this court. He insisted that, at common law, the death of either party, any time before final judgment, would have abated the suit that the judiciary act of 1789, c. 20, s. 31, made no provision for this case, since it merely extended to the case of the death of parties, in personal actions, be¬ fore judgment; and that the statute 17 Car. II., c. 8, and the act of Kentucky, showed the sense of Parliament and the local legislature, that

l.— Tidd’s Prac. 1034 ; Bac. Abr. tit. Abatement.

real actions abated by the death of the parties, before judgment, upon writ of error on judg¬ ments already rendered.

Mr. Justice Story delivered the opinion of the court :

The preliminary question which has been argued at the bar, is, whether the writ of error in this case, *which is a writ of right,

has abated by the death of the demandant, who is the plaintiff in error, pending the pro¬ ceedings in this court. There is a material dis¬ tinction between the death of parties before judgment and after judgment, and while a writ of error is depending. In the former case, all personal actions by the common law abate; and it required the aid of some statute, like that of the thirty-first section of the judi¬ ciary act of 1789, ch. 20, to enable the action to be prosecuted by or against the personal representative of the deceased, when the cause of action survived. In real actions, the like principle prevails, for a still stronger reason, for, by the death of either party, the right descends to the heir, and a new cause of action springs up; and the plea is not, therefore, in the same condition as it was in the life-time of the party.

But, in cases of writs of error upon judg¬ ments already rendered, a different rule pre¬ vails. In personal actions, if the plaintiff in error dies before assignment of error, it is said that by the course of proceedings at common law, the writ abates; but if, after assignment of errors, it is otherwise. In this latter case, the defendant may join in error, and proceed to get the judgment affirmed, if not erroneous; and he may then revive it against the represen¬ tatives of the plaintiff. But in no case does a writ of error in personal actions abate by the death of the defendant in error, whether it happen before or after errors assigned. If it

Note. — In real actions, the death of either party, before judgment, abates the suit. Sec. 31 of the judiciary act of 1789, which enables the action to be prosecuted by or against the representatives of the deceased, when the cause of action survives, is clearly confined to personal actions. Mackie v. Thomas, 7 Wheat. 530.

Upon the death of a complainant In equity only his legal repi’esentatives can revuve the suit. An assignee cannot appear. Mitford, Eq. Pi. by Jeremy, 69 ; Story Eq. PI., sec. 354, a; Barribeau v. Brant, 17 How. 43.

Upon the death of a party, the proceedings be¬ come abated or discontinued. Story Eq. PI. s. 329.

The death of one of the parties to a suit does not, in all cases, necessarily viroduce such an abatement of it as to suspend all further proceedings ; but only when the interest of such part.v, or that which he represents, survives. Cave v. Cork, 2Younge & Coll. New R. 130, 133. If the interest of the party dying so determines that it can no longer affect the suit, and no person be< omes entitled thereupon to the same interest (which hapjiens in the case of a tenant for life, or a person having a temporary or contingent interest, or an interest defeasible upon a contingency), the suit does not so abate as to require any proceeding to warrant the prosecution of the suit against the remaining parties. Mitf . Eq. PI. by Jeremjq 58, and cases there cited; Coop. Eq. Pi. 65.

But if the part}' so dying be the only plaintiff, or only defendant, there will necessarily bean end of the suit, if there be no subject of litigation remain¬ ing. Story Ep. PI., sec. a56.

The death, or marriage, of one of the original parties to the suit, is the most common, if not the sole cause of the abatement of a suit in equity. As the interest of the plaintiff usually extends to the whole suit, therefore, in general, upon the death

256

of the plaintiff, or the marriage of a female plaint¬ iff, all'proceedings become abated. Upon the death of a defendant, all proceedings become abated as to that defendant. Mitf. Eq. Pi. by Jeremy, 57, 58 ; Cooper Eq. PI. 63.

If a suit abates by the death of the defendant, the plaintiff may bring a new original suit, or a bill of review, at his election. Wyatt, Pr. Reg. 91 : Spen¬ cer V. Wray, 1 Vern. 463: Anon., 3 Atk. 485, 486, Nlcollv. Roosevelt, 3 John., ch.60 ; Hardy v. Hull, 14 Simons, 31 ; Poster v. Poster, 16 Sim. 637 ; McCoul V. Le Kamp, 2 Wheat. 111.

But upon the marriage of a female defendant, the proceedings do not abate, though her husband should be named in the subsequent proceedings. Story Eq. PI., sec. 354; Jones v. Skipworth, 9 Beav.

If the defendant below marries after the judg¬ ment, and before the service of the writ of error, the service of the citation on the husband is sufficient. Pairfax v. Pairfax, 5 Cranch, 19.

When the representative of a deceased appellant did not appear after the lapse of two terms after the suggestion of his death, the suit was entered as abated. Baribeau v. Brant, 17 How. 43 : so, when he did not appear in four years, the suit was abated and cause remanded. Philips v. Preston, 11 How. 294.

An appellee having died, on motion of his ad¬ ministrator, no counsel appearing for the appel¬ lant, the appeal was dismissed. Hook v. Linton, 10 Pet. 107. If one of two plaintiffs in error die, the ac¬ tion survives. McKinney v. Carroll, 12 Pet. 66. If one defendant in error die, before the term begins, and the cause of action survives, the death may be suggested and judgment taken against the sur¬ vivor. McNutt V. Bland, 3 How. 9.

The death of one of the parties to the decree did not affect the right to have the decree executed. Penhallow v. Doane, 3 Dali. 54.

Wkeat. 6.

1821

Cohens v. Virginia.

262

happen before, and the plaintifl will not assign errors, tlie representatives of the defendant may have a scire facias quare executio non, in 263] order to compel him; if it happen after, they must proceed as if the defendants were living, till judgment be affirmed, and then revive by scire facias. And the' plaintiff, in order to compel the representatives of the defendant in error to join in error, may sue out a scire facias ad audiendum errores, either generally, or naming them. Such is the doc¬ trine of approved authorities.' It is clear, therefore, that at common law, in these cases, a writ of error does not necessarily abate : and that the personal representatives may not only be admitted voluntarily to become parties, but a scire facias may issue to require them to be¬ come parties. And such has been the practice hitherto adopted in this court in all personal ac¬ tions, whether there has been an assignment of errors or not; for, a specific assignment of errors has never been insisted on here, as a pre¬ liminary to the argument, or decision , of the cause.

In respect to real actions, this is the first time the question has presented itself upon a writ of error, where the death of either party has occurred pendente lite. There is no doubt that the heir or privy in estate, who is injured by an erroneous judgment, may prosecute a writ of error to reverse it. And there seems no good reason why, in case of the death of his ances¬ tor, pending proceedings, he may not be ad¬ mitted to become a party, or be cited to become a party, to pursue or defend the writ, in the same manner as in personal actions. The death of neither party produces any change in the 264] condition of the cause, or in the rights of the parties. It would seem reasonable, therefore, that the suit should proceed, and not be dismissed or abated. In the absence of all authority which binds the court to a differ¬ ent course, we are disposed to adopt this doc¬ trine, and shall promulgate a general rule on the subject.

Rule accordingly

See S. C., 7 Wheat. 27.

Cited— 7 Wheat. 531, 532 ; 1 Blatchf. 395 ; 1 Cliff. 129.

[constitutional law.]

COHENS V. VIRGINIA.

This coui’t has, constitutionally, appellate juris¬ diction under the judiciary act of 1789, ch. 20, s. 2.5, from the final judg-ment or decree of the highest court of law or equity of a state, having jurisdic¬ tion of the subject-matter of the suit, where is drawn in question the validity of a treaty, or stat¬ ute of, or an authority exercised under the United States, and the decision is against their validity ; or where is drawn in question the validity of a statute of, or an authority exercised under any state, on the ground of their being repugnant to the consti-

1. — 2 Tidd’s Pr. ch. 43, Error, p. 1096.

2. — Vide new order of court of the present term.

Ante, Rule XXXII.

Note.— See note to Martin v. Hunter’s Lessee, 1 Wheat. 304.

Wheat. 6. U. S., Book 5.

tutiqn, treaties, or laws of the United States, and .i® m favor of such, their validity ; or ot the constitution, or of a treaty, or statute of, or commission held under the United States, and the decision is against the title, right, privilege, or ex¬ emption, specially set up or claimed, by either party, under such clause of the constitution, treaty, statute, or commission.

It is no objection to the exercise of this appellate jurisdiction, that one of the parties is a state, and the other a citizen of that state.

act of Congress of the 4th of May,

1812, entitled, “an act further to amend the charter PI the city of Washington,” which provides (s. 6), that the corporation of the city shall be empow- ered, for certain purposes, and under certain re¬ strictions, to authorize tlie drawing of lotteries, does not extend to authorize the corporation to force the sale of the tickets in such lottery, in states where such sale may be prohibited by the state laws.

This was a writ of error to the Quarterly Session Court for the borough of Norfolk, in the state of Virginia, under the 25th section of the judiciary act of 1789, c. 20, it being the highest court of law or equity of that state having jurisdiction of the case.

Pleas at the Court-House of Norfolk borough, before the Mayor, Recorder, and Aldermen of of the said borough, on Saturday, the second idy of September, one thousand eighthundred and twenty, and in the forty-fifth year of the Commonwealth.

Be it remembered, that heretofore, to wit, at a Quarterly Session Court, held the twenty- sixth day of June, one thousand eight hundred and twenty, the grand jury, duly summoned and impaneled for the said borough of Nor¬ folk, and sworn and charged according to law, made a presentment in these words ;

We present P. J. and M. J. Cohen, for vending and selling two halves and four quarter lottery tickets of the National Lottery, to be drawn at Washington, to William H. Jennings, at their office at the corner of Max¬ well’s wharf, contrary to the act thus made and provided in that case, since January, 1820, On the information of William H. Jennings.

*Whereupon the regular process of

law w'as awarded against the said defendants, to answer the said presentment, returnable to the next succeeding term, which was duly re¬ turned by the sergeant of the borough of Nor¬ folk — “ Executed.”

And at another Quarterly Session Court, held for the said borough of Norfolk, the twenty-ninth day of August, one thousand eight hundred and twenty, came, as well the attorney prosecuting for the Common¬ wealth, in this court, as the defendants, by their attorney, and on the motion of the said attorney, leave is given by the court to file an information against the defendants on the pre¬ sentment aforesaid, which was accordingly filed, and is in these words :

Norfolk borough, to wit: Be it remembered, that James Nimmo, attorney for the common¬ wealth of Virginia, in the court of the said borough of Norfolk, cometh into court, in his proper person, and with leave of the court, giveth the said court to understand and be in¬ formed, that by an act of the General Assembly of the said commonwealth of Virginia, en¬ titled, ‘ ‘ An act to reduce into one, the several acts, and parts of acts, to prevent unlawful gaming.” It is, among other things, enacted 17 267

266

Supreme Court op the United States.

1821

and declared, that no person or persons shall | buy, or sell, within the said commonwealth, any lottery, or part or share of a lottery ticket, except in such lottery or lotteries as may be authorized by the laws thereof; and the said James Mmmo, as attorney aforesaid, further giveth the court to understand and be informed that P. J. & M. J. Cohen, traders and partners, late of the parish of Elizabeth River, and 267] borough of Norfolk aforesaid, being evil-disposed persons, and totally regardless of the laws and statutes of the said commonwealth, since the first day of January, in the year of our Lord one thousand eight hundred and twenty, that is to say, on the first day of J une, in that year, and within the said commonwealth of Virginia, to wit, at the parish of Elizabeth River, in the said borough of Norfolk, and within the jurisdiction of this court, did then and there unlawfully vend, sell, and deliver to a certain William H. Jennings, two half lot¬ tery tickets, and four quarter lottery tickets of the National Lottery, to be drawn in the city of Washington, that being a lottery not au¬ thorized by the laws of this commonwealth,^ to the evil example of all other persons in the like case offending, and against the form of the act of the General Assembly, in that case made and provided.

James Nimmo, for the Commonwealth.

And at this same Quarterly Session Court, continued by adjournment, and held for the said borough of Norfolk, the second day of September, eighteen hundred and twenty, came, as well the attorney prosecuting for the com¬ monwealth, in this court, as the defendants by their attorney,and the said defendants, for plea, say, that they are not guilty in manner and form, as in the information against them is alleged, and of this they put themselves upon the country, and the attorney for the common¬ wealth doth the same;' whereupon a case 268] was agreed by them to be argued in lieu of a special verdict, and is in these words :

GommonwealtJi against Cohens — case agreed.

In this case, the following statement is ad¬ mitted and agreed by the parties in lieu of a special verdict ; That the defendants, on the first day of June, in the year of our Lord eighteen hundred and twenty, within the borough of Norfolk, in the commonwealth of Virginia, sold to William H. Jennings a lottery ticket, in the lottery called, and denominated the National Lottery, to be drawn in the city of Washing¬ ton, within the District of Columbia.

That the General Assembly of the state of Virginia enacted a statute, or act of Assembly, which went into operation on the first day of January, in the year of our Lord 1820, and which is still unrepealed, in the words follow¬ ing:

No person, in order to raise money for him¬ self or another, shall, publicly or privately, put up a lottery to be drawn or adventured for, or any prize or thing to be raffled or played for. And whosoever shall offend herein, shall for¬ feit the whole sum of money proposed to be raised by such lottery, raffling or playing, to be recovered by action of debt, in the name of anyone who shall sue for the same, or by in¬ dictment or information in the name of the commonwealth, in either case, for the use and

258

benefit of the literary fund. Nor shall any person or persons buy, or sell, within this com¬ monwealth, any lottery ticket, or part or share of a lottery ticket, except in such lottery or lotteries as may be authorized by the laws *thereof; and any person or persons

offending herein, shall forfeit and pay, for every such offense, the sum of one hundred dollars, to be recovered and appropriated in manner last aforesaid.

That the Congress of the United States, en¬ acted a statute on the 3d day of May, in the year of our Lord 1802, entitled, an act, &c., in the words and figures following:

An Act to inco7'porat6 the inhabitants of the city

of Washington, in the District of Columbia'.

Be it enacted by the Senate and House of Representatives of the United States of Ameri¬ ca, in Congress assembled. That the inhabi¬ tants of the city of Washington be constituted a body politic and corporate, by the name of a Mayor and Council of the city of Washington, and by their corporate name may sue and be sued, implead and be impleaded, grant, receive, and do all other acts as natural persons, and may purchase and hold real, personal and mixed property, or dispose of the same for the benefit of the said city ; and may have and use a city seal, which may be altered at pleasure. The city of Washington shall be divided into three divisions or wards, as now divided by the levy court for the county, for the purposes of assessment, but the number may be increased hereafter, as in the wisdom of the city council shall seem most conducive to the general in¬ terest and convenience.

Sec. 2. And be it further enacted. That the council of the city of Washington shall consist of twelve *members, residents of the

city, and upwards of twenty-five years of age, to be divided into two chambers; the first cham¬ ber to consist of seven members, and the second chamber of five members; the second chamber to be chosen from the whole number of council¬ lors, elected by their joint ballot. The city council to be elected annually by ballot, in a general ticket, by the free white male inhabitants of full age, who have resided twelve months in the city, and paid taxes therein the year preceding the elections being held; the jus¬ tices of the county of Washington, resident in the city, or any three of them, to preside as judges of election, with such associates as the council may from time to time appoint.

Sec. 3. And be it further enacted. That the first election of members of the city council, shall be held on the first Monday in June next, and in every year afterwards, at such place in each ward as the judges of the election may prescribe.

Sec. 4. And be it further enacted, That the polls shall be kept open from eight o’clock in the morning till seven o’clock in the evening, and no longer, for the reception of ballots. On the closing of the poll, the judges shall close and seal their ballot-boxes, and meet on the day following, in the presence of the marshal of the district, on the first election, and the coun¬ cil afterwards ; when the seal shall be broken, and the votes counted ; within three days after such election, they shall give notice to the per. sons having the -greatest number of legal votes

Wheat. 4^

1821

Cohens v. Virginia.

270

that they are duly elected, and shall make their return to the mayor of the city.

271] Sec. 5. And he it further enacted, That the mayor of the city shall be appointed annually by the President of the United States; he must be a citizen of the United States, and a resident of the city prior to his appointment.

Sec. 6. And be it further enacted. That the city council shall hold their sessions in the city hall, or until such building is erected, in such place as the mayor may provide for that pur¬ pose, on the second Monday in June, in each year ; but the mayor may convene them oftener, if the public good require their deliberations; three-fourths of the members of each council, may be a quorum to do business, but a smaller number may adjourn from day to day; they may compel the attendance of absent members in such manner, and under such penalties, as they may, by ordinance, provide; they shall appoint their respective presidents, who shall preside during their sessions, and shall vote on all questions where there is an equal division ; they shall settle their rules of proceedings, ap¬ point their own officers, regulate their respective fees, and remove them at pleasure ; they shall judge of the elections, returns, and qualifica¬ tions of their own members, and may, with the concurrence of three-fourths of the whole, expel any member for disorderly behavior, or malconduct in office, but not a second time for the same offense; they shall keep a journal of their proceedings, and enter the yeas and nays on ■ any question, resolve or ordinance, at the request of any member, and their deliberations shall be public. The mayor shall appoint to all offices under the corporation. All ordi- 272 ] nances or acts passed by the city council, shall be sent to the mayor for his approbation, and when approved by him, shall then be obligatory as such. But, if the said mayor shall not approve of such ordinance or act, he shall return the same within five days, with his reasons in writing therefor; and if three-fourths of both branches of the city council, on reconsideration thereof, approve of the same, it shall be in force in like manner as if he had approved it, unless the city council, by their adjournment, prevent its return.

Sec. 7. And be it further enacted. That the corporation aforesaid shall have full power and authority to pass all by-laws and ordinances to prevent and remove nuisances ; to prevent the introduction of contagious diseases within the city; to establish night watches or patroles, and erect lamps; to regulate the stationing, anchor¬ age, and mooring of vessels; to provide for licensing and regulating auctions, retailers of liquors, hackney carriages, wagons, carts and drays, and pawn-brokers within the city; to restrain or prohibit gambling, and to provide for licensing, regulating, or restraining theat¬ rical or other public amusements within the city; to regulate and establish markets; to erect and repair bridges; to keep in repair all neces¬ sary streets, avenues, drains and sewers, and to pass regulations necessary for the preserva¬ tion of the same, agreeably to the plan of the said city ; to provide for the safe keeping of the standard of weights and measures fixed by Congress, and for the regulation of all weights and measures used in the city; to provide 2 7 3] for the licensing and regulating the

Wheat. 6.

sweeping of chimneys, and fixing the rates thereof; to establish and regulate fire wards and fire companies; to regulate and establish the size of bricks that are to be made and used in the city ; to sink wells, and erect and repair pumps in the streets; to impose and appropri¬ ate fines, penalties and forfeitures for breach of their ordinances; to lay and collect taxes; to enact by-laws for the prevention and extin¬ guishment of fires; and to pass all ordinances necessary to give effect and operation to all the powers vested in the corporation of the city of Washington; Provided, That the by-laws, or ordinances of the said corporation, shall be in no wise obligatory 'upon the persons of non¬ residents of the said city, unless in cases of intentional violation of the by-laws or ordi¬ nances previously promulgated. All the fines, penalties and forfeitures imposed by the cor¬ poration of the city of Washington, if not exceeding twenty dollars, shall be recovered before a single magistrate, as small debts are by law recoverable; and if such fines, penalties and forfeitures, exceed the sum of twenty dollars, the same shall be recovered by action of debt, in the District Court of Colum¬ bia, for the county of Washington, in the name of the corporation, and for the use of the city of Washington.

Sec. 8. And be it further enacted. That the person or persons appointed to collect any tax imposed in virtue of the powers granted by this act, shall have authority to collect the same, by distress and sale of the goods and chattels of the person chargeable therewith; no sale shall be made, unless ten days’ *previous [*2 7 4: notice thereof be given ; no law shall be passed by the city council subjecting vacant or unim¬ proved city lots, or parts of lots, to be sold for taxes.

Sec. 9. And be it further enacted. That the city council shall provide for the support of the poor, infirm and diseased of the city.

Sec. 10. Provided always, and be it further enacted. That no tax shall be imposed by the city council on real property in the said city, at any higher rate than three-quarters of one per centum, on the assessment valuation of such property.

Sec. 11. And be it further enacted. That this act shall be in force for two years from the passing thereof, and from thence to the end of the next session of Congress thereafter, and no longer.

And another act, on the 23d day of February, 1804, entitled, “An act supplementary to an act, entitled, an act to incorporate the inhabit¬ ants of the city of Washington, in the District of Columbia.”

“ Be it enacted by the Senate and House of Representatives of the United States of America, in Congress a.ssembled. That the act, entitled, An act to incorporate the inhabitants of the city of Washington, in the District of Columbia, except so much of the same as is consistent with the provisions of this act, be, and the same is hereby continued in force, for and during the term of fifteen years from the end of the next session of Congress.

Sec. 12. And be it further enacted. That the council of the city of Washington, from and after the *period for which the members [*2 7 5 of the present council have been elected, shall

259

275

Supreme Court op the United States.

1821

consist of two chambers, each of which shall be composed of nine members, to be chosen by distinct ballots, according to the directions of the act to which this is a supplement ; a ma¬ jority of each chamber shall constitute a quorum to do business. In case vacancies shall occur in the council, the chamber in which the same may happen, shall supply the same by an election by ballot, from the three persons next highest on the list to those elected at the preceding election, and a majority of the whole number of the chamber in which such vacancy may happen, shall be necessary to make an election.

Sec. 13. And be it further enacted. That the council shall have power to establish and regu¬ late the inspection of flour, tobacco, and salted provisions, the gauging of casks and liquors, the storage of gunpowder, and all naval and military stores, not the property of the United States, to regulate the weight and quality of bread, to tax and license hawkers and peddlers, to restrain or prohibit tippling houses, lotteries, and all kinds of gaming; to superintend the health of the city; to preserve the navigation of the Potomac and Anacostia rivers adjoining the city, to erect, repair, and regulate public wharves, and to deepen docks and basins; to provide for the establishment and superinten¬ dence of public schools; to license and regu¬ late, exclusively, hackney coaches, ordinary keepers, retailers and ferries ; to provide for the appointment of inspectors, constables, and such other officers as may be necessary to execute 276] the laws of the corporation, and to give such compensation to the mayor of the city as they may deem fit.

Sec. 14. And be it further enacted. That the Levy Court of the county of Washington shall not hereafter possess the power of imposing any tax on the inhabitants of the city of Washington.”

That the Congress of the United States, on the 4th day of May, in the year of our Lord 1812, enacted another statute, entitled, “An act further to amend the charter of the city of Washington.”

“Be it enacted by the Senate and House of Representatives of the United States of Am¬ erica, in Congress assembled. That from and after the first Monday in June next, the cor¬ poration of the city of Washington shall be composed of a mayor, a board of aldermen, and a board of common council, to be elected by ballot, as hereafter directed. The board of aldermen shall consist of eight members, to be elected for two years, two to be residents of, and chosen from, each ward, by the qualified voters therein; and the board of common council shall consist of twelve members, to be elected for one year ; three to be residents of, and chosen from, each ward, in manner aforesaid; and each board shall meet at the council chamber on the second Monday in June next (for the despatch of business), at ten o’clock in the morning, and on the same day, and at the same hour, annually, thereafter. A majority of each board shall be necessary to form a quorum to do business, but a less number may adjourn from day to day. The hoard of aldermen, im- 277] mediately after they shall have assem¬ bled in consequence of the first election, shall divide themselves by lot into two classes ; the 260

seats of the first class shall be vacated at the expiration of one year, and the seats of the second class shall be vacated at the expiration of two years, so that one-half may be chosen every year. Each board shall appoint its own president from among its own members, who shall preside during the sessions of the board, and shall have a casting vote on all questions where there is an equal division; provided such equality shall not have been occasioned by his previous vote.

Sec. 2, And be it further enacted, That no person shall be eligible to a seat in the board of aldermen or board of common council, unless he shall be more than twenty -five years of age, a free white male citizen of the United States, and shall have been a resident of the city of Washington one whole year next preceding the day of the election ; and shall, at the time of his election, be a resident of the ward for which he shall be elected, and possessed of a freehold estate in the said city of Washington, and shall have been assessed two months preceding the day of election. And every free white male citizen of lawful age, who shall have resided in the city of Washington for the space of one year next preceding the day of election, and shall be a resident of the ward in which he shall offer to vote, and who shall have been assessed on the books of the corporation, not less than two months prior to the day of election, shall be qualified to vote for members to serve in the said board of aldermen and board of common *council, and no other person whatever

shall exercise the right of suffrage at such elec¬ tion.

Sec. 3. And be it further enacted. That the present mayor of the city of Washington shall be, and continue such, until the second Mon¬ day in June next, on which day, and on the second Monday in June annually thereafter, the mayor of the said city shall be elected by ballot of the board of aldermen and board of common council, in joint meeting, and a ma¬ jority of the votes of all the members of both boards shall be necessary to a choice; and if there should be an equality of votes between two persons after the third ballot, the two Houses shall determine by lot. He shall, before he enters upon the duties of his office, take an oath or affirmation in the presence of both boards, “lawfully to execute the duties of his office to the best of his skill and judgment, witljout favor or partiality. ” He shall, ex officio, have, and exercise all the powers, authority, and jurisdiction of a justice of the peace, for the county of Washington, within the said county. He shall nominate, and with the con¬ sent of a majority of the members of the board of aldermen, appoint to all offices under the corporation (except the commissioners of elec¬ tions), and every such officer shall be removed from office on the concurrent remonstrance of a majority of the two boards. He shall see that the laws of the corporation be duly executed, and shall report the negligence or misconduct of any officer to the two boards. He shall ap¬ point proper persons to fill up all vacancies during the recess of the board of aldermen, to hold such *appointment until the end [*2 7 9 of the then ensuing session. He shall have power to convene the two boards, when, in his opinion, the good of the community may

Wheat. 6.

1821

Cohens v. Virginia.

279

require^ it, and he shall lay before them from time to time, in writing, such alterations in the laws of the corporation as he shall deem necessary and proper, and shall receive for his services annually, a just and reasonable com¬ pensation. to be allowed and fixed by the two hoards, which shall neither be increased or di¬ minished during the period for which he shall have been elected. Any person shall be eligible to the office of mayor, who is a free white male citizen of the United States, who shall have attained to the age of thirty years, and who shall be a hona fide owner of a freehold estate in the said city, and shall have been a resident in the said city two years immediately preceding his election, and no other person shall he eligible to the said office. In case of the refusal of any person to accept the office of mayor, upon his election thereto, or of his death, resignation, inability or removal from the city, the said two boards shall elect another in his place, to serve the remainder of the year.

Sec. 4. And be it further enacted, That the first election for members of the board of al¬ dermen, and hoard of common council, shall be held on the first Monday in June next, and on the first Monday in June annually there¬ after. The first election to he held by three commissioners, to be appointed in each ward by the mayor of the city, and at such place in each wards as he may direct ; and ail subsequent elections shall be held by a like number 280] of commissioners, to be appointed in each ward by the two boards, in joint meeting, which several appointments, except the first, shall he at least ten days previous to the day of each election. -And it shall be the duty of the mayor for the first election, and of the com¬ missioners for all subsequent elections, to give at least five days’ public notice of the place in each ward where such elections are to he held. The said commissioners shall, before they re¬ ceive any ballot, severally take the following oath or affirmation, to be administered by the mayor of the city, or any justice of the peace for the county of Washington: “I, A. B., do solemnly swear or affirm (as the case may be), that I will truly and faithfully receive, and re¬ turn the votes of such persons as are by law entitled to vote for members of the board of aldermen, and board of common council, in ward No. — , according to the best of my judg¬ ment and understanding, and that I will not, knowingly, receive or return the vote of any person who is not legally entitled to the same, so help me God.” The polls shall he opened at ten o’clock in the morning, and be closed at seven o’clock in the evening, of the same day. Im¬ mediately on closing the polls, the commission¬ ers of each ward, or a majority of them, shall count the ballots, and make out under their hands and seals a correct return of the two persons for the first election, and of the one person for all subsequent elections, having the greatest number of legal votes, together with the number of votes given to each, as members of the board of aldermen; and of the three persons having the greatest number of legal 281] votes, together with the number of votes given to each, as members of the board of common council. And the two persons at the first election, and the one person at all .sub¬ sequent elections, having the greatest number | Wheat. 6.

of legal votes for the board of aldermen; and the three persons having the greatest number of legal votes for the board of common coun¬ cil, shall be duly elected; and in all cases of an equality of votes, the commi.ssioners shall de¬ cide by lot. The said returns shall he delivered to the mayor of the city, on the succeeding day, who shall cause the same to be published in some newspaper printed in the city of Washington. A duplicate return, together with a list of the persons who voted at such election, shall also he made by the said com¬ missioners, to the register of the city; on the day succeeding the election, who shall preserve and record the same, and shall, within two days thereafter, notify the several persons so returned, of their election; and each board .shall judge of the legalty of the elections, returns and qualifications of its own members, and shall supply vacancies in its own body, by caus¬ ing elections to be made to fill the same, in the ward, and for the board in which such vacan¬ cies shall happen, giving at least five days’ no¬ tice previous thereto ; and each board shall have full power to pass all rules necessary and req¬ uisite to enable itself to come to a just decision in cases of a contested election of its own mem¬ bers; and the several members of each board shall, before entering upon the duties of their office, take the following oath or affirmation: *“I do swear (or solemnly, sincerely,

and truly affirm and declare, as the case may be), that I will faithfully execute the office of to the best of my knowledge and ability,” which oath or affirmation shall be ad¬ ministered by the mayor, or some justice of the peace, for the county of Washington.

Sec. 5. And be it further enacted. That in addition to the powers heretofore granted to the corporation of the city of Washington, by an act, entitled, “An act to incorporate the in¬ habitants of the city of Wa.shington, in the District of Columbia,” and an act, entitled,

‘ ‘ An act, supplementary to an act, entitled, an act to incorporate the inhabitants of the city of Washington, in the District of Columbia,” the said corporation shall have power to lay taxes on particular wards, parts, or sections of the city, for their particular local improve¬ ments.

That after providing for all objects of a gen¬ eral nature, the taxes raised on the assessable property in each ward, shall be expended there¬ in, and in no other; in regulating, filling up, and repairing of streets and avenues, building of bridges, sinking of wells, erecting pumps, and keeping them in repair ; in conveying water in pumps, and in the preservation of springs ; in erecting and repairing wharves ; in providing fire engines and other apparatus for the extinc¬ tion of fires, and for other local improvements and purposes, in such manner as the said board of aldermen and board of common council shall provide ; but the sums raised for the sup¬ port of the poor, *aged and infirm,

shall be a charge on each ward in proportion to its population or taxation, as the two boards .shall decide. That whenever the proprietors of two-thirds of the inhabited houses, fronting on both sides of a street, or part of a street, shall by petition to the two branches, express the desire of improving the same, by laying the curb-stone of the foot pavement, and paving the

261

283

Supreme Court op the United States.

1821

gutters or carriageway thereof, or otherwise improving said street, agreeably to its gradua¬ tion, the said corporation shall have power to cause to be done at any expense, not exceeding two dollars and fifty cents per front foot, of the lots fronting on such Improved street or part of a street, and charge the same to the owners of the lots fronting on said street, or part of a street, in due proportion : and also on a like petition to provide for erecting lamps for lighting any street or part of a street, and to defray the expense thereof by a tax on the proprietors or inhabitants of such houses, in proportion to their rental or valuation, as the two boards shall decide.

Sec. 6. And be it further enacted. That the said corporation shall have full power and authority to erect and establish hospitals or pest-houses, work-houses, houses of correction, penitentiary, and other public buildings for the use of the city, and to lay and collect taxes for the defraying the expenses thereof ; to regulate party and other fences, and to determine by whom the same shall be made and kept in re¬ pair; to lay open streets, avenues, lanes and alleys, and to regulate or prohibit all inclosures thereof, and to occupy and improve for public 284] Durposes,by and with the consent of the President of the United States, any part of the public and open spaces or squares in said city, not interfering with any private rights ; to reg¬ ulate the measurement of, and weight, by which all articles brought into the city for sale shall be disposed of ; to provide for the appoint¬ ment of appraisers, and measurers of builders’ work and materials, and also of wood, coal, grain and lumber ; to restrain and prohibit tbe nightly and other disorderly meetings of slaves, free negroes and mulattoes, and to punish such slaves by whipping, not exceeding forty stripes, or by imprisonment not exceeding six calendar months, for any one offense; and to punish such free negroes and mulattoes for such of¬ fenses, by fixed penalties, not exceeding twenty dollars for any one offense ; and in case of in¬ ability of any such free negro or mulatto to pay and satisfy any such penalty and costs thereon, to cause such free negro or mulatto to be con¬ fined to labor for such reasonable time, not ex¬ ceeding six calendar months, for any one offense, as may be deemed equivalent to such penalty and costs; to cause all vagrants, idle or dis¬ orderly persons, all persons of evil life or ill-fame, and all such as have no visible means of support, or are likely to become chargeable to the city as paupers, or are found begging or drunk in or about the streets or loi¬ tering in or about tippling houses, or ■who can show no reasonable cause of business or employ¬ ment in the city; and all suspicious persons, and all who have no fixed place of residence, or cannot give a good account of themselves, all eaves-droppers and night-walkers, all who 285 ] are guilty of open profanity, or grossly indecent language or behaviour publicly in the streets, all public prostitutes, and such as lead a notoriously lewd or lascivious course of life, and all such as keep public gaming tables, or gaming houses, to give security for their good behavior for a reasonable time, and to indemnify the city against any charge for their support, and in case of their refusal or in¬ ability to give such security, to cause them to be 262

confined to labor for a limited time, not ex¬ ceeding one year at a time, unless such security should be sooner given. But if they shall af¬ terwards be found again offending, such security may be again required, and for want thereof, the like proceedings may again be had, from time to time, as often as may be neces¬ sary ; to prescribe the terms and conditions upon which free negroes and mulattoes, and others who can show no visible means of support, may reside in the city; to cause the avenues, streets, lanes and alleys to be kept clean, and to appoint officers for that purpose. To au¬ thorize the drawing of lotteries for effecting any important improvement in the city, which the ordinary funds or revenue thereof will not accomplish. Provided, That the amount to be raised in each year shall not exceed the sum of ten thousand dollars. And provided also, that the object for which the money is intended to be raised, shall be first submitted to the Presi¬ dent of the United States, and shall be ap¬ proved of by him. To take care of, preserve and regulate the several burying-grounds with¬ in the city ; to provide for registering of births, deaths and marriages; to cause abstracts or minutes *of all transfers of real prop-

erty, both freehold and leasehold, to be lodged in the registry of the city, at stated periods ; to authorize night watches and patroles, and the taking up and confining by them, in the night time, of all suspected persons; to punish by law corporally any servant or slave guilty of a breach of any of their by-laws or ordinances, unless the owner or holder of such servant or slave shall pay the fine annexed to the offense ; and to pass all laws which shall be deemed necessary and proper for carrying into execu¬ tion the foregoing powers, and all other pow¬ ers vested in the corporation, or any of its offi¬ cers, either by this act, or any former act.

Sec. 7. And be it further enacted. That the marshal of the District of Columbia shall re¬ ceive, and safely keep, within the jail for Wash¬ ington county, at the expense of the city, all persons committed thereto under the sixth sec¬ tion of this act, until other aiTangements be made by the corporation for the confinement of offenders, within the provisions of the said sec¬ tion ; and in all cases where suit shall be brought before a justice of the peace, for the recovery of any fine or penalty arising or incurred for a breach of any by-law or ordinance of the cor¬ poration, upon a return of “nulla bona” to any fieri facias issued against the property of the defendant or defendants, it shall be the duty of the clerk of the Circuit Court for the county of Washington, when required, to issue a writ of capias ad satisfaciendum agaist every such defendant, returnable to the next Circuit Court for the county of Washington there¬ after, *and which shall be proceeded

on as in other writs of the like kind.

Sec. 8. And be it further enacted. That un¬ improved lots in the city of Washington, on which two years’ taxes remain due and unpaid, or so much thereof as may be necessary to pay such taxes, may be sold at public sale for such taxes due thereon. Provided, that public no¬ tice be given of the time and place of sale, by advertising in some newspaper printed in the city of Washington, at least six months, where the propei'ty belongs to persons residing out of

Wheat. 6.

1821

Cohens v. Virginia.

287

the United States; three montlis where the property belongs to persons residing in the United States, but without the limits of the District of Columbia; and six weeks where the property belongs to persons residing within the District of Columbia or city of Washington; in which notice shall be stated the number of the lot or lots, the number of the square or squares, the name of the person or persons to whom the same may have been assessed, and also the amount of taxes due thereon. And provided, also, that the jmrchaser shall not be obliged to pay at the time of such sale, more than the taxes due, and the expenses of sale ; and that, if within two years from the day of such sale, the proprietor or proprietors of such lot or lots, or his or their heirs, representatives, or agents, shall repay to such purchaser the moneys paid for the taxes and expenses as aforesaid, together with ten per centum per annum as interest thereon, or make a tender of the same, he shall be re instated in his original right and title; but if no such payment or tender be made 288] within two years next after the said sale, then the purchaser shall pay the balance of the purchase money of such lot or lots into the city treasury, where it shall remain subject to the order of the original proprietor or pro¬ prietors, his or their heirs, or legal representa¬ tives; and the purchaser shall receive a title in fee-simple to the said lot or lots, under the hand of the mayor, and seal of the corpora¬ tion, which shall be deemed good and valid in law and equity.

Sec. 9. And be it further enacted. That the said corporation shall, in future, be named and styled, “ the mayor, aldermen, and common council of the city of Washington;” and that if there shall have been a non-election or in¬ formality of a city council, on the first Monday in June last, it shall not be taken, construed, or adjudged, in any manner, to have operated as a dissolution of the said corporation, or to affect any of its rights, privileges, or laws passed previous to the second Monday in June last, but the same are hereby declared to exist in full force.

Sec. 10. And be it further enacted. That the corporation shall, from time to time, cause the several wards of the city to be so located as to give, as nearly as may be. an equal number of votes to each ward ; and it shall be the duty of the register of the city, or .such officer as the corporation may hereafter appoint, to furnish the commissioners of election for each ward, on the first Monday in June, annually, previous to the opening of the polls, a list of the per.sons having a right to vote, agreeably to the provis¬ ions of the second section of this act.

289] Sec. 11. And it be further enacted. That so much of any former act as shall be re¬ pugnant to the provisions of this act, be, and the same is hereby repealed.

Which statutes are still in force and unre¬ pealed. That the lottery, denominated the national lottery, before mentioned, the ticket of which was sold by the defendants as afore¬ said, was duly created by the said corporation of Washington, and the drawing thereof, and the sale of the said ticket, was duly authorized by the said corporation, for the objects and purposes, and in the mode directed by the said statute of the Congress of the United States. Wheat. 6

If, upon this case, the court shall be of opinion, that the acts of Congress before mentioned were valid, and on the true construction of these acts, the lottery ticket sold by the said de¬ fendants as aforesaid, miglit lawfully be sold within the state of Virginia, notwithstanding the act or statute of the general assembly of Virginia prohibiting such sale, then judgment to be entered for the defendants. But if the court should be of opinion, that the statute or act of the general assembly of the state of Vir¬ ginia, prolubiting such .sale, is valid, notwith¬ standing the said acts of Congress, then judg¬ ment to be entered, that the defendants are guilty, and that the commonwealth recover against them one hundred dollars and costs.

Taylor, for defendants.

And thereupon the matters of law arising upon the said case agreed being argued, it seems to the court here, that the law is for the commonwealth, and *that the defend-

ants are guilty in manner and form, as in the information against them is alleged, and they do assess their fine to one hundred dollars be¬ sides the costs. Therefore, it is considered by the court, that the commonwealth recover against the said defendants, to the use of the president and directors of the literary fund, one hundred dollars, the fine by the court afore¬ said, in manner aforesaid assessed, and the costs of this prosecntion, and the said defend¬ ants may be taken, &c.

From which judgment the defendants, by their counsel, prayed an appeal to the next Su¬ perior Court of law of Norfolk county, which was refused by the court, inasmuch as cases of this sort are not subject to revision by any other court of the commonwealth. Common¬ wealth’s costs, $31.50.

Mr. Barbour, for the defendant in error, moved to dismiss the writ of error in this case, and stated three grounds upon which he should insist that the court had not jurisdiction; (1) Because of the subject-matter of the contro¬ versy, without reference to the parties. (2) That considering the character of one of the parties, if the court could have jurisdiction at all, it must be original, and not appellate. (3) And, finally, that it can take neither original nor appellate jurisdiction.

that the federal government is one of limited powers. This distinguishing trait equally char¬ acterizes all its departments; it is with the ju¬ dicial department only that the present inquiry is connected. It is in the *2d section

of the 3d article of the constitution that we find an enumeration of the objects to which the judicial power of the Union extends. That part of it which relates to the present discus¬ sion, declares, that ‘ ‘ the judicial power shall extend to all cases in law and equity, arising under this constitution, the laws of the United States, and treaties made, or which shall be made, under their authority.” It is not pre¬ tended, that any treaty has any sort of relation to the present case; before, then, this court can take jurisdiction, it must be shown that this is a case ari.«ing either under the constitu¬ tion, or a law of the United States. I shall endeavor to prove that it does not belong to either description. These two classes of cases are obviously put in contradistinction to each

263

291

Supreme Court op the United States.

1821

other ; and there will he no difficulty in show¬ ing to the court the difference in their character. The constitution contains two different kinds of provisions ; the one (if I may use the expres¬ sion). self-executed, or capable of self-execu¬ tion ; the other, only executory, and requiring legislative enactment to give them operation; thus, the 2d section of the 4th article, which declares, that “the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states;” the 10th section of the 1st article, which prohibits any state from making anything hut gold and silver coin, a tender in payment of debts ; from pass¬ ing any law ‘ ‘ impairing the obligation of con¬ tracts ;” and the prohibition to Congress, in the 9th section, and to the states in the 10th section of the same article, to pass ‘ ‘ any bill of at- 292] tainder, or ex post facto law,” are all examples of the self-executed provisions of the constitution; by which, I mean to say that the constitution, in these instances, is, per se, opera¬ tive, without the aid of legislation. On the con¬ trary, the various provisions of the 8th section of the same article, such, for example, “ as the power to establish an uniform system of natur¬ alization, and uniform laws on the subject of bankruptcy,” are executory only; that is, with¬ out an act of legislation, they have ho opera¬ tive effect.

The cases, then, arising under the constitu¬ tion, are those which arise under its self-execut- ed provisions; and those arising under the laws of the United States, are those which oc¬ cur under some law, passed in virtue of the executory provisions of the constitution. If this idea be correct, then this is not a case arising under the constitution ; and it does not correspond with the other part of the descrip¬ tion, that is, it does not arise under a law of the United States. In the first place, this court, in the case of Hephurn v. Elzy, ^ decided, that the District of Columbia was not a state, within the meaning of the constitution, and that, therefore, a citizen of that district could not sustain an action against a citizen of Virginia, in the Circuit Court of that state. Now, it would sound curiously, to call a law passed for a district, not itself exalted to the dignity of a state, a law of the United States, it would seem more strange to call a law passed by the corporation of Washington, for the local pur- 293] poses of Washington, a law of the United States, and yet such is the character of the law under which this case arises ; for the act of Congress did not itself create the lottery, but authorized the corporation of Washington to do it.

As to this sub-legislation, legislative power is a trust which cannot be transferred. Delega¬ tus Twn potest delegare. If this can be exercised by substitution, other legislative powers can also. I would then inquire, whether in execu¬ tion of the power “to lay and collect taxes,” “ to declare war,” &c.. Congress could author¬ ize the state legislatures to do these things. It is a misnomer, to call by the name of a law of the United States, any act passed for the Dis¬ trict of Columbia, though enacted by Conguess, without calling in the aid of a corporation. It has been well observed by a former member of

1. — 2 Cranch, 445.

264

this court, that every citizen in the United States sustains a two-fold political character, one in relation to the federal, the other in rela¬ tion to the state governments. To put the proposition in other words, it may be stated thus: A two-fold system of legislation pervades the United States; the one of which I will call federal, the other municipal. The first belongs by the constitution of the United States to Con¬ gress, and consists of the powers of war, peace, commerce, negotiation, and those general pow¬ ers which make up our external relations, to¬ gether with a few powers of an internal kind, which require uniformity in their operation; the second belongs to the states, and consists of whatever is not included in the first, embracing particularly everything connected *with

t the internal police and economy of the several states. If this system knew no exception in its op¬ eration, the present question would never have arisen ; for no man would ever dream of calling a law of Virginia or Maryland, a law of the United States. But there are certain portions of terri¬ tory within the United States, of which the District of Columbia is one, in which there is no state government to act ; in relation to these. Congress, by the constitution, exercises not only federal, but municipal legislation also; and as the whole difficulty in this case has arisen out of this blending together of two dif¬ ferent kinds of legislative power, so, that diffi¬ culty will be removed by a careful attention to the difference in the nature and character of these powers, and the extent of their operation respectively. Whenever a question arises, wheth¬ er a law passed by Congress is a law of the United States, we have only to inquire whether it is constitutionally passed in execution of any of the federal powers ; if it be, it is properly a law of the United States ; since the federal powers are co-extehsive with the limits of the United States, and this, though the particular act may be confined to certain persons, places or things. Thus, a law establishing federal courts in a particular state, is a law of the United States ; for though its immediate operation is upon one state, yet it is in execution of a power co-extensive with the United States; but if a law, though passed by Congress, be passed in execution of a municipal power, as a law to pave the streets of Washington, then it cannot, in any propriety of language, *be called a

law of the United States. It is an axiom in politics, that legislative power has no operation, beyond the territorial limits under its authority.

I do not now speak of the doctrine of the hx loci; of that comity, by which the different states of the civilized world receive the laws of others, as governing, in certain cases of con¬ tract, or questions of a civil nature. ' I speak of the intrinsic energy of the legislative power, its operation per se.

If this principle be true, is there anything in this case to impair its force? It is admitted on all hands, that this law was passed in virtue of the power given by the constitution to exercise exclu,sive legislation, over such district, not ex¬ ceeding ten miles square, as should become the seat of the federal government. If we look in¬ to the history of the country , the debates of the conventions, or the declarations of the Federal¬ ist, we shall alike arrive at the conclusion, that this power was given in consequence of an in-

Wheat. 6.

1831

Cohens v. Virginia.

395

cident which had occurred in Philadelphia, and the necessity which thence seemed to re¬ sult, of Congress deliberating uninterrupted and unawed. The motive, then, for granting this power, would not lead to an extension of it ; still less will the terms ; for, they are as restric¬ tive as could by possibility be used. The dis¬ trict shall not exceed ten miles square, and as was argued in the convention of Virginia, may not exceed one mile. So far from the principle being impaired, then, it is greatly strengthened by the .language of this provision. See to what consequences we should be led by the doctrine, that because this lottery was authorized by 396] Congress, therefore the tickets might be sold in any state, against its laws, with im¬ punity. The same charter authorizes the corporation of Washington to grant licenses to auctioneers and retailers of spirituous liquors. Now, upon the doctrines contended for, what will hinder the corporation from granting li¬ censes to persons, to vend goods and liquors in Virginia, by a corporation license, contrary to the laws of Virginia? and thus greatly impair the revenue which the state raises from these licenses; as it is said, that a saleable quality is of the essence, and constitutes the only value of a lottery ticket, and that therefore it is not competent to any state to abridge the value of that, which was rightfully created by the legis¬ lature of the Union? Would not the same rea¬ soning justify the holders of these corporation licenses, equally to trample upon the laws of the state ; lest, for want of a market, their mer¬ chandise and liquors might not be sold, and thus the value of their license diminished. These are cases in which the revenue of a state would be impaired, as well as the laws for the protection of its morals. Such is the law of Virginia, prohibiting the use of billiard tables. If Congress should authorize licenses to be is¬ sued, by the corporation of Washington, for using them, and if this law have an operation beyond the territorial limits of the district, then has Virginia lost all power of regulating the con¬ duct of her own citizens.

The solution of the whole difficulty lies in this : That though the laws of Congress, when passed in execution of a federal power, extend over the Union, and being laws of the United 297] States, are a part of the supreme law of the land, yet, a law passed like the one in ques¬ tion, in execution of the power of municipal legislation, extends only so far as the power under which it was passed — that is, to the boundaries of the district; that, therefore, it is no law of the United States, and consequently not a part of the supreme law of the land. Nor is there anything novel in the idea of two pow¬ ers residing in the same body, at the same time, and over the same subject, of a different kind. The idea is familiarly illustrated by cases of or¬ dinary occurrence in the judiciary. For the same trespass, an action, or indictment, may be brought before the same court, and a differ¬ ent judgment pronounced, as one or the other mode is pursued. So the same court has fre¬ quently commmon law and chancery jurisdic¬ tion, and pronounces a different judgment in relation to the same subject, as they are exer¬ cising the one or the other jurisdiction.

Let us look further at the consequences of calling the laws of the district, laws of the

Wheat. 6,

United States. By the sixth article of the con¬ stitution, laws of the United States, matle in pursuance of the constitution, are declared a part of the supreme law' of the land, and the judges in every state shall be bound thereby, anything in the laws of their state to the con¬ trary notwithstanding. If, then, laws of the district be laws of the United States, within the meaning of the constitution, it will follow, that they may be carried to the extent of an in¬ terference with every department of state legis¬ lation; and whenever they shall so interfere, they are to be considered *of paramount

authority. Suppose the law of Virginia to de¬ clare a deed for land void against a purchaser for valuable consideration, without notice, un¬ less recorded upon the party’s acknowledgment, or the evidence of three witnesses. Suppose a law of the district to dispense with record, or to be satisfied with two witnesses. If one citizen should convey to another citizen of the district, land lying in Virginia, in conformity with the district law, upon the principle now contended for, the party must recover, in the teeth of the law of Virginia. It will be admitted, that a law passed, like the one in question, by one state, might be repelled by, another; it will, also, be admitted, that if Congress had (as some think they have a right to do, but in which I do not concur) established here a local legislature, which had passed the law in ques¬ tion, its effects might have been repelled from the states by penal sanctions.

But if it be said, that as the dominion over the district flows from the same source with every other power possessed by the government of the Union, as it is executed by the same Congress, as it was created for the common good, and for universal purposes, that it must be of equal obligation throughout the Union in its effects, with any power known to the con¬ stitution; from whence it is inferred, that the law in question can encounter no geographical impediments, but that its march is through the Union. The answer is, that the federal powers of Congress, in their execution, encounter no geographical impediments, because no limits, short of the boundaries *of the Union,

are prescribed to them; but the legislative power over the district, in its execution, does encounter geographical impediments, because the limits of the district are distinctly pre¬ scribed, as the bound of its extent, and as an insurmountable barrier to its further march.

It may be said, too, that this case bears no resemblance to that of one state repelling, by penal sanctions, the effects of the laws of an¬ other; because it is said, one state is no party to the laws of another; whereas here, the law is its own law, as being represented in Con¬ gress, and thereby contributing to its passage, and capable in part of effecting its repeal. It will be seen at once, that this principle would prove too much, and, therefore, that it cannot be a sound one ; for if the states are to acquiesce in this instance, because they are represented in Congress, and have, therefore, an agency in making and repealing laws, the same reason¬ ing would justify Congress in legislating be¬ yond their delegated powers; for example, pre¬ scribing a general course of descents. It is ob¬ vious, that they might contribute as much to the passage and repeal of this law, as any

265

299

Supreme Court op the United States.

1821

other, and yet this ground will not be attempt¬ ed to.be sustained. If, then, they are not bound, because of their representation in Congress, to acquiesce in the assumption of a power not grant¬ ed. they are surely as little bound, upon that ground, to permit a power, confined to ten miles square, to extend its operation with the limits of the United States.

If, then, the law in question is not a law of the United States, in the sense of that expres- 300*] sion in the ^constitution, this is not a case arising under the law of the United States, and, consequently, the jurisdiction of this court fails as to the subject-matter.

could entertain jurisdiction of the case at all, it must be oilginal, and not appellate jurisdic¬ tion. This has reference to the character of one of the parties in the present contest. The con.'^titution of the United States, after having carved out the whole mass of jurisdiction which it gives to the federal judiciary, and enumerat¬ ed its several objects, proceeds in the second clause of the second section of the third article to distribute that jurisdiction amongst the several courts. To the Supreme Court, it gives original jurisdiction in two classes of cases, to wit, ‘ ‘ in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party in all the other cases to which the judicial power of the United States extends, it gives the Supreme Court ap¬ pellate jurisdiction. This court, in the case of Marbury v. 3{cidison,^ thus expresses itself in relation to this clause of the constitution: “ If Congress remains at liberty to give this court appellate jurisdiction, where the constitution has declared their jurisdiction shall be original ; and original jurisdiction, where the con.stitu- tion has declared their jurisdiction shall be ap¬ pellate, the distribution of jurisdiction made in the constitution, is form without substance.” Again, the court says, “the plain import of 301] the words seems to be, that in one class of cases, its jurisdiction is original, not appel¬ late ; in the other, it is appellate, not original and accordingly, in that case, which was an application for a mandamus to the then Secre¬ tary of State, to issue commmissions to certain justices of the peace in the District of Colum¬ bia, the court, after distinctly admitting that the parties had a right, yet refused to grant the mandamus, upon the ground that it would be an exercise of original jurisdiction; that not be¬ ing one of the cases, in which that kind of jurisdiction was given them by the constitution, it was not competent to Congress to give it.

It appears, then, from the constitution, that where a state is a party, this court has original jurisdiction; it appears from the opinion of this court just quoted, that it excludes appellate jurisdiction. But a state is a party to the pres- sent case;. it is a judgment for a penalty inflict¬ ed for the violation of a public law ; the pros¬ ecution commenced by a presentment of a grand jury, carried on by an information filed by the attorney for the commonwealth, and the judgment rendered in the name of the com¬ monwealth ; and the case has come before this court by a writ of error, which is surely ap¬ pellate jurisdiction; if, then, when a state is a

*1 Cranch, 174.

2GG''

party, this court have original jurisdiction; if the grant of original, exclude appellate juris¬ diction ; if, as in this case, a state be a party ; and if the jurisdiction now claimed is clearly appellate, then it follows, as an inevitable con¬ clusion, that in this case this court cannot take jurisdiction in this way, if they could take it at all.

*3. My last proposition is, that con-

sidering the nature of this case, and that a state is a party, tho judicial power of the Unit¬ ed States does not extend to the case, and that, therefore, this court cannot take jurisdiction at all. This is a criminal case, both upon prin¬ ciple and authority. A crime is defined to be an act committed or omitted in violation of some public law commanding or forbidding it. The offense in this case is one of commission. A prosecution in the name of a state, by infor¬ mation, as this has been shown to be, to inflict a punishment upon this offense, is, therefore, a prosecution for a crime; in other words, a criminal case. Upon authority, too, penal actions are called in the books criminal ac¬ tions. But if it be a criminal case, it is con¬ ceded, that the courts of the United States can¬ not take original jurisdiction over it, inasmuch as that right fully belongs to the courts of the state whose laws have been violated; and that jurisdiction having once rightfully attached, they have a right to proceed to judgment ; but if they have no original jurisdiction, I liave shown, in the discussion of the second point, that they cannot have appellate jurisdiction, and it consequently follows, that they cannot have jurisdiction at all.

I will now endeavor to show, from general principles, in connection with the fair con¬ struction of the third article of the constitution, that without reference to the particular charac¬ ter of the case, whether as criminal or civil, the judicial power of the United States does not extend to it, on account of the character of one of the parties; in other words, *because

one of the parties is a state. It is an axiom in politics, that a sovereign and independent state is not liable to the suit of any individual, nor amenable to any judicial power, without its own consent. All the states of this Union were sovereign and independent, before they became parties to the federal compact; hence, I infer, that the judicial power of the United States would not have extended to the states, if it had not been so extended to them, eo nomine, upon the face of the constitution. But if it can 1‘each them only because it is expressly given in relation to them, then it can only reach them to the extent to which it is given. By the original text of the constitution, the judicial power of the Union was extended to the fol¬ lowing cases, in which states were parties, to wit, to controversies between two or more states, between a state and citizens of another state, and between a state and foreign states, citizens and subjects. The case of a contest between a state and one of its own citizens, is not included in this enumeration; and, conse¬ quently, if the principle which I have advanced be a sound one, the judicial power of the United States does not extend to it ; but the uniform decision of this conrt has been, that if a party claim to be a citizen of another state, it must appear upon the record. As that does not ap-

Wheat. 6.

Cohens v. Virginia.

303

1821

pear upon the record in this case, 1 am author¬ ized to say, that the plaintiffs in error are citi¬ zens of Virginia; then it is the simple case. of a contest between a state and one of its own citi¬ zens, which does not fall within the pale of federal judicial power.

304] It is said, however, that the judicial power is declared, by the constitution, to extend to all cases in law or equity, arising under this constitution, the laws of the United States, and treaties made, &c. ; and that bj^ reason of the expression ‘ ‘ all cases, ” where the question is once mentioned in the constitution, the federal judicial power attaches upon the case on ac¬ count of the subject-matter, without reference to the parties. Notwithstanding the latitude of this expression, it will be seen upon inquiiy, that in the nature of things, there must be some limitation imposed upon this provision, which the gentlemen seem to consider unlimited. In the first ■ place there are questions arising, or which might arise under the constitution, which the forms of the constitution do not submit to judicial cognizance. Suppose, for example a state were to grant a title of nobility, how could that be brought before a judicial tribunal, so as to render any effectual judgment? If it were an ottice of profit, it might, perhaps, be said, an information in the nature of a quo icarranto would lie; but I ask whether that would lie, in the case which I have stated, or whether an effectual judgment could be ren¬ dered? It is a title, a name which would still remain, after your judgment had denounced it as unconstitutional. Where a quo warranto lies, in relation to an office, the judgment of ouster is followed by practical and effectual consequences. Again, suppose a state should keep troops or ships of war, in time of peace, or should engage in war, when neither actually invaded, nor in imminent danger. Here would 305] be alarming violations of the coustitu- tion, assailing too directly the federal powers; it would be a most serious question arising un¬ der the constitution, and yet clearly such a case as this does not belong to the judicial tribunal.

If it be said that the opposite counsel mean all ca.ses in their nature of a judicial character, still I shall be able to show that broad as this expression is, it does not reach all the.se. It will be remembered bj^ the court, that the words are, not all questions, but all cases. Al¬ though, therefore, a question may arise, yet be¬ fore there can be a case, there mu,st be parties over whom the court can take jurisdiction; and if there be no such parties, the court cannot act upon the subject, though the question may arise, though it may be clearly of a judicial nature, and though there may be the clearest violation of the constitution. By the 11th ar¬ ticle of the amendments to the constitution, it is declared, that “ the judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States, by citizens of another state, or by citizens or sub¬ jects of any foreign state.” Now, suppo.se that a state should, without the consent of Congress, lay a duty on tonnage, which should be paid by a ■ citizen of another state ; suppose, too, that a state should cause the lands of a British subject to be escheated, contrary to the ninth article of the treaty of 1794, upon the ground

Wheat. 6.

of alienage ; or debts due to a British subject from individuals of the United States, or money or shares belonging to him, in the public funds or banks, to be confiscated, contrary to the tenth article of the same treaty, and [*30G deposit the proceeds in the public chest. It will be agreed on all hands, that the first is a palpable violation of the federal constitution, and the two others as palpable violations of the solemn stipulations of a treaty; and that, there¬ fore, the first presents a question arising under the constitution, and the others one arising under a treaty ; yet, will any man contend that the citizen of another state, in the fir.st case, or the subject of the foreign state, in the others, could bring the offending state before the fed¬ eral court, for the purpose of redressing their several wrongs? It will not be pretended; and why not? For the reason which I have given — that one of the parties in the cases supposed being a state, and the amendment referred to having declared, that a state should not be amenable to the suit of a citizen of another state, or the subject of a foreign state; although the questions have arisen, the cases have not ; that is. the court cannot take judicial cogni¬ zance of the questions, because it cannot bring one of the parties interested in litigating it be¬ fore them. Let us now suppose, that a state should collect a tonnage duty from one of its own citizens, could that citizen bring his own state before a federal court? The words of the 11th amendment apply to the case of a citizen of another state, or the citizen or subject of a foreign state ; but the reason is, that it was only to them that the privilege of being parties in a controversy with a state, had been extended in the text of the constitution. It was only from them, therefore, that it was necessary to take away that privilege; but, when from

those to whom a privilege had been given, that privilege had been taken away, they surely then occupy the same ground with those to whom it had never been given. When I speak here of the right of these persons under the constitution of suing a state, I speak of the in¬ terpretation of this court, particularly in the case of Chisholm’s Mv’rs v. Georgia, in which the court decided, that a state might be made a party defendant. It was that decision which produced the 11th amendment. If I am right in the idea, that since that amendment, no mat¬ ter what the character of the question, this court could not take jurisdiction in favor of the citizen of another state, or subject of a for¬ eign state, against a state as defendant, it is equally true, that without the aid of that amendment, it never could take juri.sdiction in favor of a citizen against his own state; be¬ cause that is not one of the cases in which the federal judicial power extends to states, and because in this case, as in the others, although a question has arisen under the constitution, &c., a case has not arisen, inasmuch as you cannot bring one of the parties befoi'e you. That the con.stitution never contemplated giv¬ ing jurisdiction to the federal courts in cases between a state and its own citizens, will ap¬ pear manifestly, from the only reason assigned for giving it in favor of the citizens of other states, or foreign citizens. That reason was an insufficient one, even for the purpose for which it was assigned ; it being, that as against

307

Supreme Court op the United States.

1821

foreigners and the citizens of other states, state courts might not he impartial where their states 308 ] were parties ; but such as it is, it never could apply as between a state and its own citizens, whom they were under every moral and political obligation to protect, and towards whom, therefore, there could be no apprehen¬ sion of a want of impartiality.

Upon a full view of this aspect of the sub¬ ject, the fair construction of the constitution will be found to be this — that in carving out the general mass of jurisdiction, it had refer¬ ence only to the natural and habitual parties to controversies, who are either natural persons, or corporations, short of political societies, not to states: that in relation to these, they could not have been made parties at all, but by ex¬ press provision, and that, therefore, the extent to which they can be so made, is limited by the extent of that provision. It will be con¬ ceded, that the United States cannot be sued; and why? Because it is incompatible with their sovereignty. The states, before the adop¬ tion of the federal constitution, were also sov¬ ereign ; and the same principle applies, unless it can be shown that they have surrendered this attribute of sovereignty ; which I have endeav¬ ored to show they have not.

Upon my construction, there is consistency throughout the constitution. According to it, a state can never be subjected, at the suit of any individual, to any judicial tribunal, with¬ out its own consent; for it can never be made a party defendant in any case, or by any party, except in the cases between it and another state, or a foreign state. If it be a party plaint¬ iff, I have already endeavored to prove that 309] this court could never take appellate, but only original jurisdiction, and that there¬ fore as between a state and any individual, that state never could be placed in the attitude of a defendant. This idea is further sustained by reference to the history of the country. From that we learn, that the great and radical defect in the first confederacy was, that its powers operated upon political societies or states, not upon individuals. The charactei'istic differ¬ ence between that and the present government is, that the latter operates upon the citizens. Take, for example, the power of taxation, which addresses it.self directly to the people of the United States in the shape of an individual demand, instead of a requisition upon the states, for their respective quotas.

It has been said, that if this doctrine prevail, the federal government will be prostrated at the feet of the states, and that the various lim¬ itations and prohibitions imposed upon the states by the constitution, will be a dead letter, upon the face of that instrument, for the want of some power to enforce them. Let it be re¬ membered that the several state legislatures and judiciaries are all bound, by the solemn obligation of an oath, to support the federal constitution ; that to suppose a state legislature capable wilfully legislating in violation of that constitution, if it is to suppose that it is so lost to the moral sense as to be guilty of per¬ jury; a supposition which, thank God, the character of your people forbids us to make, nor can it be realized, until we shall have reached a maturity of corruption, from which I trust We are separated by a long tract of 268

future *time. But if the legislatures

could be supposed to be so blind to the sacred dictates of conscience and of duty, as to pass such a law, we have another safeguard in the character of the state judiciaries. Before ef¬ fect could be given to it, it must be supposed that the sanctity of the judicial ermine was also polluted. To him, who can for a moment en¬ tertain this unjust and injurious apprehension, I have nothing to say, but to ask him to look at the talents, the virtues, and integrity, which adorn and illustrate the benches of our state courts; and I will add, that according to the doctrine maintained by this court, in the case of Mm'tin, v. Hunter^ the judgments of the state courts, in questions arising under the constitution, betw'een individuals, would be subject to the appellate jurisdiction of this court. ^ But if the states are under limitations by the constitution, so also is the federal gov¬ ernment. If the state legislatures may be sup¬ posed possibly capable of violating that instru¬ ment, and the state judiciaries disposed to sustain *them in that violation, it may

as well be supposed that the federal legislature may be thus disposed, and the federal judiciary prepared to sustain them.

Whenever the states shall be determined to destroy the federal government, they will not find it necessary to act, and to act in violation of the constitution. They can quietly and ef¬ fectually accomplish the purpose by not acting. Upon the state legislatures it depends to ap¬ point the senators and Presidential electors, or to provide for their election. Let them merely not act in these particulars; the executive de¬ partment, and part of the legislative, ceases to exist, and the federal government thus perishes by a sin of omission, not of commission. But I will endeavor in another way to show', that whenever the states shall have reached that point, either of corruption, or hostility, to the federal government, which they must arrive at before any of the extreme supposed violations of the constitution could occur, the jurisdiction now claimed for this court would be utterly inadequate as a remedy. Let us suppose one of the most glaring violations of the constitu¬ tion : a bill of attainder or ex post facto law, for example, passed by a state ; and that the state judiciary proceeds to conviction of the party prosecuted. Let us suppose that this court, claiming an appellate jurisdiction, forbids the execution of the party; but the state court or¬ ders its judgment to be executed, and it is exe¬ cuted, by putting to death the prisoner. His life cannot be recalled ; that is beyond the reach of human power; can you prosecute the judges or the officer for murder? It will not be con-

1. — 1 Wheat. Rep. 305.

3.— Mr. Barbour observed, in reply, that he wished to be distinctly understood, as not yielding’ his as¬ sent to the doctrine of Martin. V. Hunter - On the contrary, that he decidedly concurred with the Court of Appeals of Virginia, that the appellate jurisdiction of the Supreme Court was in relation to inferior federal courts, not state courts. But, as that question had been solemnly decided otherwise by this court, with the argument of the Court of Appeals of Virginia before them, he had forborne to discuss it ; he had referred to it, however, because, whilst this court acted upon the principle of that case, there was a controlling power, on the part of the federal, over the state judiciaries, in practical operation.

Wheat. 6.

1821

Cohens v. Virginia.

812

3 1 2] tended. Of what avail, then, the juris¬ diction contended for, even for the purpose for which it is claimed? I answer, of none at all.

Mr. Smyth stated, that he should support the motion to dismiss the writ of error granted in this case, for two causes: (1) Because the con¬ stitution gives no jurisdiction to the court in the case. (2) Because the judiciary act gives no jurisdiction to the court in this case.

appellate jurisdiction of this court, as declared by the constitution, does or does not extend to this case. If it was in all respects similar to the case of Martins. adjudged in this

court, I should contend, that the constitutional question of jurisdiction should not be regarded as settled. In that case, the counsel conceded the constitutional question, and no argument has been offered to this court in support of the jurisdiction of the state judiciary. One of the learned judges^ of this court said, in that case, when speaking of the claim of power in this court to exercise appellate jurisdiction over the state tribunals, “ this is a momentous question, and one on which I shall reserve myself un¬ committed, for each particular case as it shall occur.” And the court said, that “in several cases, which, have been formerly adjudged in this court, the same point was argued by coun¬ sel, and expressly overruled.” But the case now before the court is very different from 313] that oi Martin Y. Hunter. This is a writ of error to revise a judgment given in a criminal prosecution, and in a case wherein a state was a party.

The government of the United States being one of enumerated powers, it is not a sufficient justification of the authority claimed, to say that there is nothing in the constitution that prohibits the federal judiciary to take cogni¬ zance, by way of appeal, of cases decided in the state courts. All the powers not granted are retained by the states; judicial power is grant¬ ed; but it is federal judicial power that is granted, and not state judicial power. This grant neither impairs the authority of the state courts in suits remaining within their jurisdic¬ tion, nor makes them inferior courts of the United States. The government of the United States operates directly upon the people, and not at all upon the state governments, or the several branches thereof. The state govern¬ ments are not subject to this government. The people are subject to both governments. This government is in no respect federal in its opera¬ tion, although it is, in some respects, federal in its organization. Power has, indeed, been vested, by the constitution, in the state legisla¬ tures, to pass certain laws necessary to organ¬ ize and continue the existence of the general government, and this power Congress may in part assume. They may prescribe the time, place, and manner, of holding elections of rep¬ resentatives ; the time and manner of choosing senators by the state legislatures ; and the tirne of choosing electors of a President. This 314] power is expressly given by the con¬ stitution; it was necessary Congress should possess it, for self-preservation; and, even in these cases, they have no power to prescribe to

1.— 1 Wheat. Rep. 305.

3.— Mr. Justice Johnson.

Wheat. 6.

the state legislature a legislative act. This government cannot prescribe an executive act to the executive of a state, a legislative act to the legislature of a state, or (as I contend) a judicial act to the judiciary of a state.

If the constitution does not confer on the judiciary of the United States the appellate jurisdiction claimed, it is not enough that the act of Congress may purport to confer it. The framers of the judiciary act manifested a dis¬ trust of their authority; they seem to have foreseen that the state courts would refuse to give judgment according to the opinions of the Supreme Court. The case decided in tlie state court was not a case in law arising under the laws of the United States. It was a prosecu¬ tion under a law of the state. Should a man¬ date issue in this case, and obedience be re¬ fused, this court will give judgment on a prosecution for violating state laws. If the case decided in the state court be regarded as a case in which a state was a party, the Su¬ preme Court has, by the constitution, original, and not appellate jurisdiction. .The appellate jurisdiction of the Supreme Court is only con¬ ferred in cases other than those whereof the Suftreme Court has original jurisdiction. Who has original jurisdiction of those other cases? The inferior federal courts. Some of those other cases are those of admiralty and maritime juris¬ diction, of which, certainly, it was not intended *that the original jurisdiction should be

in the state courts.

If this writ of error be considered to be a suit in law, this court has no jurisdiction ; for it is prosecuted against a state; and, by the 11th amendment to the constitution, no suit in law can be prosecuted by foreigners or citizens of another state against one of the United States. The amendment prohibits such suits com¬ menced or prosecuted against a state. This seems expressly to extend to this writ of error, which, although not a suit in law commenced against a state, is a suit in law prosecuted against a state. This amendment, denying to foreigners and citizens of other states the right to prosecute a suit against a state, and being silent as to citizens of the same state, affords a proof that the federal courts never had juris¬ diction of a suit between a citizen and the state whereof he is a citizen ; for it cannot be pre¬ sumed, that a right to prosecute a suit against a state would be taken from a foreigner or citi¬ zen of another state, and left to citizens of the same state. A release of all suits is a release of a writ of error and, consequently, a writ of error is “a suit in law, ” and cannot be prosecuted against a state.

The appellate jurisdiction conferred by the constitution on the Supreme Court, is merely authority to revise the decisions of inferior courts of the United States. Where the Su¬ preme Court have . not original jurisdiction, they have, by the constitution, appellate juris¬ diction as to law and fact. Could it have been *intended to confer a power to re-ex''

amine decisions in the state courts ; to try again the facts tried in those courts, and this even in criminal prosecutions? Surely not. Appellate jurisdiction signifies judicial power over the decisions of the inferior tribunals of the same

"si^-Latch. 110 ; 3 Bac. Abr. 497 ; 1 Roll. Abr. 788.

269

316

Supreme Court of the United States.

1831

sovereignty. Congress have power to “ con¬ stitute ” such tribunals ; and it is made their duty to “ordain and establish” such. The framers of the constitution intended to create a new judiciary, to exercise the judicial power of a new government, unconnected with the judiciaries of the several states. Congress is not authorized to make the Supreme Court, or any other court of a state, an inferior court. They do not “ constitute ” such a court; they do not “ ordain and establish it.” The judges cannot be impeached before the senate of the United States; they receive no compensation for their services from the United States; and, consequently, cannot be required to render any services to the United States. The inferior courts, spoken of in the constitution, are mani¬ festly to be held by federal judges. The judi¬ cial power to be exercised, is the judicial power of the United States ; the errors to be corrected are those of that judicial power ; and there can be no inferior courts exercising the judicial power of the United States, other than those constituted, ordained, and established by Con¬ gress.

The Supreme Court has appellate jurisdic¬ tion in cases to which the judicial power of the United States shall extend; but unless the orig¬ inal jurisdiction has extended to the case, the 317] appellate jurisdiction can never reach it. The original jurisdiction alone is qualified to lay hold of it. If it shall be deemed proper to extend the judicial power to all the cases enumerated, the original jurisdiction must be thus extended. The court exercising appellate jurisdiction, must not only have jurisdiction over such a cause, and such parties, but it must have jurisdiction over the tribunal before which the cause has been depending. Judicial power, includes power to decide, and power to enforce the decision. This court has rather disclaimed power to enforce its mandate to the Supreme Court of a state. If you have not power to compel state tribunals to obey your decisions, you have no appellate jurisdiction in cases de¬ pending before them. Suppose it should be found necessary to direct a new trial in a cause removed from a state court, and that the state court refuses to obey your mandate; where shall the new trial be had? If you have appel¬ late jurisdiction in a case decided by a state court, you must have power to make your de¬ cisions a part of the record of the state court. The constitution provides that full faith and credit shall be given in each state to the judi¬ cial proceedings of every other state. A plaint¬ iff recovers in the courts of Virginia judgment for a sum of money; you reverse the judg¬ ment ; but the state court does not record j^our decision; the plaintiff obtains a copy of the record of the judicial proceedings of the state, and presents them as evidence before the court of another state; he must recover, notwith- 318] standing your judgment, which has not been made a part of that record, to which full faith and credit is to be given.

To give jurisdiction over the state courts, it is not sufficient that the constitution has said that the Supreme Court shall have appellate jurisdiction; for that will be understood to signify jurisdiction over inferior federal courts. To confer the jurisdiction claimed, the con¬ stitution should have said, that the judicial

270

power of the United States shall have appel¬ late jurisdiction over the judicial power of the several states. If it had been intended to give appellate jurisdiction over the state courts, the proper expressions would have been used. There is not a word in the constitution that goes to set up the federal judiciary above the state judiciary. The state judiciary is not once named. The subjects spoken of are the judi¬ cial power of the United States; the supreme and inferior courts of the United States; and the original and appellate jurisdiction of the Supreme Court. Appellate jurisdiction is not granted to the judicial power of the United States. It is granted to the Supreme Court of the United States. Federal judicial power is au¬ thorized to correct the errors of federal judicial power. I contend, that in no case can the federal courts revise the decisions of the state courts ; no such power is expressly given by the con¬ stitution; and can it be believed tliat it was meant that the greatest, the most consolidating of all the powers of this government, should pass by an unnecessary implication ? The states have granted to the United States power to pro¬ nounce their own judgment in certain cases; but they have not *granted the state

courts to the federal government ; ■ nor pow'er to revise state decisions.

The power of the House of Lords to hear ap¬ peals from the highest court in Scotland, hsis been mentioned as a precedent for the exercise of such a power as is claimed for this court ; but the cases are by no means similar. Scot¬ land is consolidated' with England under the same executive and legislature; and, therefore, ought to be subject, in the last resort, to the same judicial tribunal. If the states had no executive except the President, and no legisla¬ ture except Congress, the cases would have some resemblance.

If you correct the errors of the courts of Vir¬ ginia, you either make them courts of the United States, or you make the Supreme Court of the United States a part of the judiciary of Virginia. The United States can only pro¬ nounce the judgment of the United States. Virginia alone can pronounce the judgment of Virginia. Consequently, none but a Virginia court can correct the errors of a Virginia court.

There is nothing in the constitution that indi¬ cates a design to make the state judiciaries sub¬ ordinate to the judiciary of the United States. The argument that Congress must establish a supreme court, and might have omitted to es¬ tablish inferior courts, thereby depriving the Supreme Court of its appellate jurisdiction, unless it should be exercised over the state courts, seems to be without foundation. The judicial power of the United States is vested in the Supreme Court, and inferior courts; the judges of *the inferior courts shall re-

ceive a compensation. The possibility of Con¬ fess omitting to perform a duty positively en¬ joined on them, cannot change the constitution, or affect the jurisdiction of the state courts.

The federal judiciary and state judiciaries pos¬ sess concurrent power in certain cases ; but no authority is conferred on the one to reverse the decisions of the other, 'rtie state courts retain a concurrent authority in cases wherein they had jurisdiction previous to the adoption of the constitution, unless it is taken away by the

Wheat. 6-

1831

Cohens n. Virginia.

330

operation of that instrument. I say a concur¬ rent authority, not a subordinate authority. The power of the judiciary of the United States is either exclusive or concurrent, but not para¬ mount power. And where it is concurrent only, then, whichsoever judiciary gets pos¬ session of the case, should proceed to final judg¬ ment, from which there should be no appeal. If it shall be established that this court has appellate jurisdiction over the state courts in all cases enumerated in the third article of the con¬ stitution, a complete consolidation of the states, so far as respects judicial power, is produced: and it is presumed that it was not the intention of the people to consolidate the judicial systems of the states, with that of the United States. It has been said, that the courts of the United States can revise the proceedings of the executive and legislative authorities of the states, and, if they are found to be contrary to the constitution, may declare them to be of no legal validity; and that the exercise of the same right over judicial tribunals, is not a higher or more 321] dangerous act of sovereign power.' This conclusion seems to be erroneous. When the federal courts declare an act of a state legis¬ lature unconstitutional, or an act of the state executive unlawful, they exercise no higher authority than the state courts exercise, who will not only declare an act of the state legisla¬ ture, but even an act of Congress, unconstitu¬ tional and void. This only proves that the federal and state judiciaries have equally au¬ thority to judge of the validity of the acts of the other branches of both governments, and has no tendency whatever to establish the claim set up by federal judicial power, of supremacy over state judicial power.

This writ of error brings up the judgment rendered in a state court, in a criminal prosecu¬ tion. Every government must possess within itself, and independently, the power to punish offenses against its laws. It would degrade the state governments, and devest them ofevery pretension to sovereignty, to determine that they cannot punish offenses without their decis¬ ions being liable to a re-examination, both as to law and fact (if Congress please), before the Supreme Court of the United States. The claim .set up would make the states dependent, for the execution of their criminal codes, upon the federal judiciary. The cases “in which a state shall be a party,” of which the Supreme Court may take cognizance, are civil contro¬ versies. This seems obvious; because, to the Supreme Court is granted original jurisdiction of 322] them. And it will not be contended that the Supreme Court shall have original jurisdic¬ tion of prosecutions carried on by a state, against those who violate its laws. If “cases in law and equity, arising under the laws of the United States,” comprehend criminal prosecu¬ tions in the state courts, then every prosecution against a citizen of the state, in which he may claim some exemption under an act of Con¬ gress or a treaty, however unfounded the claim, may be re-examined, both as to law and fact (if Congress please), in the Supreme Court. And if ‘ ‘ controversies ” include such prosecu¬ tions, then every prosecution against an alien, or the citizen of another state, may be so re-

1.— 1 Wheat. Rep. 344.

Wheat. 6.

examined, whether he claim such exemption or not. pan this court bring up a capital case, wherein sonje exemption under a federal law is claimed by a prisoner in a state court? Would an appeal He (should Congress so direct) from a jury? It would not, even if the trial was had in a federal court ; for the accused has a right to a trial by a jury in the state and district wherein the crime shall be charged to have been com¬ mitted. In all cases within the appellate juris¬ diction of the Supreme Court, that jurisdiction may extend to the law and the fact. But such jurisdiction, as to the fact, cannot extend to criminal cases ; consequently, it was not intend¬ ed that the appellate jurisdiction should extend to criminal cases ; and, therefore, the Supreme Court have no appellate jurisdiction in criminal cases. Can, then, the court take jurisdiction in this case, which was a criminal pro.secution, founded on the presentment of a grand jury? Surely they cannot. This ca,se was not a qtd Ham action, which is regarded as a civil

suit.^ It was, both in form and substance, a criminal prosecution. And it has been declared by a judge of this court, that ‘ ‘ the courts of the United States are vested with no power to scru¬ tinize into the proceedings of the state courts, in criminal cases.”®

That which is fixed by the constitution. Con¬ gress have no power to change. The jurisdic¬ tion of the state courts is fixed by the constitu¬ tion. It is not a subject for congressional legis¬ lation. The people of Virginia, in adopting the constitution of the United States, had pow¬ er to diminish the jurisdiction of the state judi¬ ciary ; but Congress have no power over it ; they can neither diminish nor extend it; they can neither take from the state tribunals one cause, or give them one to decide. As they cannot im¬ pose on the state courts any duties, so neither can they take from them any powers. Con¬ gress can neither add to or diminish the legisla¬ tive power, the executive power, or the judi¬ cial power of a state, as fixed by the constitu¬ tion. Congress may pass all laws necessary and proper to execute that power which is vested by the constitution in the judiciary of the United States ; but this does not sanction a violation of the authority of the state courts. None can en¬ large or abridge the jurisdiction of the judi¬ ciary of Virginia, except the people of Virginia, or the legislature of that state. As was the jurisdiction of the state judiciary on the 4th day of March, 1789, so it stands at this day, unless altered by the *state. If on that

day the states retained jurisdiction of the most of the cases enumerated in the third article of the constitution, that jurisdiction must have been left to them by the constitution, and can¬ not be taken from them by Congress. The power either of a state legislature or a state judiciary, cannot depend on the use of, or neg¬ lect to use, a power, by Congress. Such state power is fixed by the con.stitution ; the same to day as to-morrow, however Congress may legis¬ late.

The judicial power of the United States is conferred by the constitution, and Congress cannot add to that power. Congress may dis¬ tribute the federal judicial power among the

3.— 1 Wheat. Rep. 371.

271

324

Supreme Court op the United States.

1821

federal courts, so far as tlie distribution has not been made by the constitution. If the consti¬ tution does not confer on this coui;t, or on the federal judiciary, the power sought to be exer¬ cised, it is in vain that the act of Congress pur¬ ports to confer it. And where the constitution confers original jurisdiction (as in cases where a state is a party). Congress cannot change it into appellate jurisdiction. The extent of the judicial power of the United States being fixed by the constitution, it cannot be made exclusive or concurrent, at the will of Congress. They cannot decide whether it is exclusive of the state courts or not ; for that is a judicial ques¬ tion, arising under the constitution. If the ju¬ dicial power of the United States is exclusive, Congi-ess cannot communicate a part of it to the state courts, giving to the federal courts appellate jurisdiction over them. If by the constitution the state judiciary has concurrent 325] jurisdiction, Congress cannot grant to the federal courts an appellate jurisdiction over the exercise of such concurrent power. The state judiciary cannot have independent or sub¬ ordinate power, at the will and pleasure of Congress.

The state judiciary have concurrent jurisdic¬ tion, by the constitution, over all the cases en¬ umerated in the third article of the constitution, except, 1. Prosecutions for violating federal laws; 2. Cases of admiralty and maritime ju¬ risdiction ; and, 3. Cases affecting ambassadors, other public ministers, and consuls. No gov¬ ernment can execute the criminal laws of an¬ other government. The states have parted with exterior sovereignty. As they cannot make treaties, perhaps they have not jurisdiction in the case of ministers sent to the federal govern¬ ment ; as they cannot make war and peace, reg¬ ulate commerce, define and punish piracies and offenses on the high seas, and against the law of nations, or mak^e rules concerning captures on the water, perhaps they have no admiralty jurisdiction. The jurisdiction of the state courts over civil causes, arising under the con¬ stitution, laws, and treaties, seems to me to be unquestionable. The state judges are sworn to support the constitution, which declares them bound by the constitution, laws, and treaties. This was useless, unless they have jurisdiction of causes arising under the constitution, laws, and treaties, which are equally supreme law to the state courts as to the federal courts. The state judges are bound by oath to obey the constitu¬ tional acts of Congress; but they are not so 326] bound to obey the decisions of the federal courts ; the constitution and laws of the United States are supreme; but the several branches of the government of the United States have no supremacy over the corresponding branches of the state governments.

The jurisdiction of tlie state courts is admit¬ ted by Congress, in the judiciary act; for, by an odious provision therein, which does not seem to be impartial, the decision of the state court, if given in favor of him who claims un¬ der federal law, is final and conclusive. Thus, the state courts have acknowledged jurisdiction ; and if that jurisdiction is constitutional. Con¬ gress cannot control it.

Congress cannot authorize the Supreme Court to exercise appellate jurisdiction over the de¬ cisions of the state courts, unless they have 272

legislative power over those courts. Can Con¬ gress give an appeal from a federal district court to a state court of appeal? I presume it will be admitted that they cannot. And why can they not? Because they have no power over the state court. And if they cannot give an appeal to that court, they cannot give an appeal from that court.

The constitution provides, that the judicial power of the United States shall “extend to” certain enumerated cases. These words signify plainly, that the federal courts shall have juris¬ diction in those cases ; but this does not imply exclusive jurisdiction, except in those cases where the jurisdiction of the state courts would be contrary to the necessary effect of the pro¬ visions of the constitution. Civil *suits,

arising under the laws of the United States, may be brought and finally determined in the courts of foreign nations; and, consequently, may be brought and finally determined in the state courts.

The judiciary of every government must judge of its own jurisdiction. The federal ju¬ diciary and the state judiciary may each de¬ termine that it has, or that it has not, jurisdic¬ tion of the case brought before it; but neither can withdraw a case from the jurisdiction of the Other. The question, whether a state court has jurisdiction or not, is a judicial question, to be settled by the state judiciary, and not by an act of Congress, nor by the judgment of the Supreme Court of the United States. Shall the states be denied the power of judging of their own laws? As their legislation is subject to no negative, so their judgment is subject to no ap¬ peal. Sovereignty consists essentially in the power to legislate, judge of, and execute laws. The states are as properly sovereign now as they were under the confederacy ; and we have their united declaration that they then, individually, retained their sovereignty, freedom, and inde¬ pendence. The constitution recognizes the sovereignty of the states, for it admits that treason may be committed against them. They would not be entitled to the appellation of “states” if they were not sovereign.

Although the state courts should maintain a concurrent jurisdiction with the federal courts, yet foreigners would have, what before the adoption of the constitution they had not, a choice of tribunals, before which to bring their actions; and the state * judges are now

bound by treaties as supreme law. If an alien plaintiff sues in the state courts, he ought to be bound by their decision ; and if an alien is sued in a state court, he ought to be bound by the decision of the state in which he resides or so¬ journs, which protects him, to which he owes a temporary allegiance, and to whose laws he should yield obedience. The people could not have intended to give to strangers a double chance to recover, while citizens should beheld bound by the first decision; that the citizen should be bound by the judgment of the state alone. Mobile the stranger should not be bound but by the judgment of the state, and also of the United States. A statute contrary to rea¬ son, is void. An act of Congress which should violate the principles of natural justice, should also be deemed void. It is worthy of consid¬ eration, whether this clause in the judiciary act, which grants an appeal to one party, and

Wheat. 6.

182 L

Cohens v. Virginia.

328

denies it to the other, is not void, as being par¬ tial and unjust. If, in any case brought before them, the state courts shall not have jurisdic¬ tion, the defendant ma}^ plead to the jurisdic¬ tion, and the Supreme Court of the state will finally decide the iioint. If this is not a suffi- ■cient security for justice, as I apprehend it is, an amendment to the constitution may provide another remedy. If the defendant submits to the jurisdiction of the state court, and takes a chance of a fair trial, it is reasonable that he should be bound by the result.

As I deny to this court authority to remove, bv writ of error, a cause from a state court, so ■329] I likewise deny the authority of this court to remove, before judgment, from a state •court, a suit brought therein. It will be equal¬ ly an invasion of the jurisdiction of the state ■court, although less offensive in form, than a removal after judgment has been rendered. Congress can neither regulate the state courts, nor touch them by regulation.

Let the Supreme Court declare (for it is a ju¬ dicial question) what cases are within the ex¬ clusive jurisdiction of the federal courts, by the constitution; and let Congress pass the neces¬ sary and proper laws for carrying that power into effect. Although I do not admit that the state courts would be absolutely bound by such a declaration, yet I have no doubt that the state courts would acquiesce. It is not for jurisdic¬ tion over certain cases that the state courts con¬ tend. It is for independence in the exercise of the jurisdiction that is left to them by the con¬ stitution.

comprehend this case, so that the court may take jurisdiction thereof?

In this case the construction of a statute of the United States is said to have been drawn in question, and the decision in the state court was against the exemption claimed by the de¬ fendant in that court. This court has no juris¬ diction, if it shall appear that the defendant really had no exemption to- set up in the state court, under a statute of the United States. If the act of Congress has no application, no bear- 330] ing on the case, the court has no juris¬ diction.' The parties cannot, by making an act. of Congress, which does not affect the cause, apart of the record, give this court ju¬ risdiction.

This court have said, that “the sovereignty •of a state in the exercise of its legislation, is not to be impaired, unless it be clear that it has transcended its legitimate authority ; nor ought any power to be sought, much less to be ad¬ judged, in favor of the United States, unless it be clearly within the reach of their constitu¬ tional charter.”" This court have also said, that “ the sovereign powers vested in the state governments by their respective constitutions, remained unaltered and unimpaired, except so far as they were granted to the government of the United States.”" The state legislatures re¬ tain the powers not granted, and not repugnant to the exercise of the powers granted to Con¬ gress; and it is not denied, that the legislature

Wheat. Rep. 363,- 4 Wheat. Rep. 314.

2. -5 Wheat. Rep. 48.

3. — 1 Wheat. Rep. 326.

Wheat. 6. U. S., Book 5.

of Virginia possessed, previous to the passage of the act of Congress for incorporating the city of Washington, authority to prohibit the sale of lottery tickets in Virginia. That legislature still possesses the power, unless the exercise thereof obstructs some means adopted by Con¬ gress for executing their delegated powers.

Actions are lawful or criminal, as the laws of the land determine. Whether an action done in Virginia is lawful or criminal, depends on the laws of that *state, unless the action

has been authorized or prohibited by Congress in carrying into execution some power granted to them, or the power of some department or officer of the government. The state govern¬ ments are charged with the police of the states. They, considering certain acts as having a de¬ moralizing tendency, have prohibited them. Shall Congress authorize those very acts to be done within the body of a state?

So entirely is the police of a state to be regu¬ lated by its own laws, that if Congress taxed licenses to sell lottery tickets, the payment of the tax would not confer on him wlfo paid it, any authority to sell tickets contrary to the laws of a state. Congress imposed a tax on licenses to sell spirituous liquors by retail ; but that did not prevent the state governments from regarding tippling-houses as nuisances, and punishing those retailers of spirits who were not licensed tavern-keepers. The license is grantable by the state; when granted, the fed¬ eral government may tax it ; but they have no power to grant it. . The police belongs to the state government; and the federal government cannot, by the power of taxation, interfere with the police, so as to legalize any act which a state prohibits.

It is said that a lottery ticket owes its value to its salable quality. It is true that the sal¬ ability of the ticket by the managers is essential to make the lottery of value to the corporation. But, those sales may be made in Washington. And, if they cannot, must the constitution yield to a lottery? The proprietor of property has not a right everywhere to*dispose of it

as he pleases. A man may own poison, but he must not sell it as a medicine. He may own money; but he may not, in Virginia, part with it at public gaming. He may come to Wash¬ ington and purchase a lottery ticket; but if he takes it to Virginia he must not sell it there. A lottery ticket is a chose in action, and not assignable by the common law. The state laws determine whether bonds, bills, notes, &c. , are assignable or not. Spirituous liquors are prop¬ erty ; but they cannot be sold by retail, without the license of the state government.

The act of Congress under which this lottery has been authorized, is not an act pas.sed in the execution of any of those specific powers which Congress may exercise over the states. The acts of Congress must be passed in pursuance of the constitution, or they are void. If they have passed a statute authorizing an act to be done in a state which they had no power to authorize in a state, their statute is void. The acts of Congress, to be supreme law in a state, must be passed in execution of some of the powers dele¬ gated to Congress, or to some department or officer of the government. Congress may paas all laws necessary and proper to carry a given power into effect ; but they must have a given 18 273

332

Supreme Court op the United States.

1821

power. Now, what is the given power for the execution of which the sale of lottery tickets in the states is an appropriate means? It is suf¬ ficient to show that the act passed is a means of carrying into execution some delegated power. The degree of its necessity or propriety will not he questioned by this court ; hut it must 333] obviously tend to the execution or sanction of some enumerated power. If it shall appear on the face of the act, that it is not passed for the purpose of carrying into effect an enumerated power, and that it is passed for some other purpose, the act would not be con¬ stitutional.

As to the object being a national one for which the money is raised by the lottery in question, the nation has no particular interest in anything in the city of Washington, except the public property and buildings belonging to the United States. The improvements to he made in the city by the proceeds of this lottery, are not na¬ tional buildings for the accommodation of the federal government ; they are corporation build¬ ings for the accommodation of the city, the charge of which is to he borne out of the reve¬ nues of the city. But, it is not admitted, that if the money was to he applied to building of the capitol, that Congress would have power, for that purpose, to authorize the sale of lottery tickets in a state, contrary to state laws.

The nation is interested in the prosperity of every city within the limits of the Union. All may be made to contribute to the public treas¬ ury — the city of Washington as well as others. If these imiirovements ' in the city of Washing¬ ton are such as the United States should pay for, let the money be advanced from the treasury, and raised by taxes or by loans in a constitu¬ tional manner, and let the taxes imposed on the city of Washington, for the purpose of making these improvements, be declared unconstitu¬ tional. They doubtless are so if the people of W ashington alone are taxed for purposes truly 334] national. This measure is not adopted to aid the revenue of the United States. It is adopted for the purpose of aiding the revenue of the city of Washington; for effecting objects which the revenue of the city should effect, but which the ordinary revenue is unequal to. It is to raise an extraordinary revenue for the city of Washington. Virginia, in which state it has been attempted to raise a part of this extraor¬ dinary revenue, has no more interest in the penitentiaries and city halls of Washington than in those of Baltimore.

Our opponents must maintain that this is an act of Congress authorizing the sale of lottery tickets in Vii-ginia. For if it is not, the question is at an end. I call upon them to show a power panted to Congi-ess, which the sale of lottery tickets in a state is an appropriate means of exe¬ cuting. Suppose that Congress had passed an act expressly authorizing P. & M. Cohen to vend lottery tickets in Virginia, for the purpose of raising a fund to diminish the taxes laid by the corporation of Washington on the inhabitants, for their own benefit ; would such an act have been constitutional? Which of the enumerated powers of Congress would such an act have been an appropriate means of carrying into ef¬ fect? Suppose that Congress had considered lotteries as pernicious gambling; could they have prohibited the sale of lottery tickets in the 274

states? It will be admitted that they could not. And if they cannot prohibit the sale of tickets; in a state, it is contended that they cannot au¬ thorize such a sale. Let us suppose that Con¬ gress have passed an act authorizing the sale of lottery *tickets in the states, for the pur-

' pose of raising money to build a city hall in the- city of Washington. Is such an act within the' constitutional powers of Congress ? Is it a mode- of laying and collecting taxes? Or is it a mode- of borrowing money ? And is it for the purpose of paying the debts or providing for the gen¬ eral welfare of the United States? Should it even be said that this lottery is a tax, or a mode of borrowing money, yet the tax is laid, or the- money borrowed, not by and for the United States, but by the corporation for the city of Washington.

Congress have two kinds or grades of power (1) Power to legislate over the states in certain enumerated cases. (2) Power to legislate over the ten miles square, and the sites of forts and arsenals, in all cases whatsoever. These powers,, so very dissimilar, should be kept separate and distinct. The advocates of the corporation confound them. They pass the act of Con¬ gress by the power to legislate over the teni miles square, unlimited as to objects, but con¬ fined within the lines of the district, and thej extend its operations over the states, by the power to legislate over them, limited as to ob¬ jects, but co-extensive with the Union. The act incorporating the city of Washington was certainly not passed to carry into execution; any power of Congress, other than the powei to legislate over the District of Columbia. If the clause conferring power to legislate in all cases over the ten miles square, had been omit¬ ted, could Uongress establish lotteries? Could, an act establishing a lottery be ascribed to any of the specific *powers, in the execu-

tion of which CongTess may legislate over all the states?

If the act authorizing a lottery is justified by the powers which extend to the states, there is no occasion to rest it on the power to legislate in all cases over Columbia. And if it is not justified by the powers which extend to the states, it cannot be justified by that power which, being limited to the district, does not extend to the states. If the act of Congress has effect in Virginia, it is a law over the states, and must have been passed by a power to legis¬ late over the states. Now, a law over the states cannot be passed by a power to legislate over Columbia. But it is the power to legislate over Columbia that has been exercised. There¬ fore, no law has been passed over the states.. Consequently, no law has been passed having effect in the states. It is, then, by the power to legislate over the ten miles square that the authority to sell lottery tickets in the states must be defended.

The power to legislate over the ten miles square is strictly confined to its limits, and does not authorize the passage of a law for the sale of lottery tickets in the states. ' When Con¬ gress legislate exclusively for Columbia, they are restrained to objects within the district. An act of Congress, passed by the authority ton

^1— 'Virginia Debates in Convention, Vol. II., p. 21. .

Wheat. 6 .

1831

Cohens v. Virginia.

336

legislate over the district, cannot be the su¬ preme law in a state ; for if, by the power to legislate, in all cases whatsoever, over the dis¬ trict, Congress may legislate over the states, it 337] will necessarily follQW, that Congress may legislate over the states in all cases what¬ soever.

The constitution gives to Congress power to exercise exclusive legislation over the ten miles square, in all gases whatsoever. In the case of Loughboi'ough v. Blake, the court said, that “ on the extent of these terms, according to the common understanding of mankind, there can be no difference of opinion.”' What is the opinion in which all mankind will unite as to the extent of those terms? Not an opinion that the laws passed in legislating over the district shall operate in the states. The opin¬ ion in which it is presumed that mankind gen¬ erally will unite, is, that all acts of Congress, not contrary to reason or the restrictions of the constitution, passed in legislating over the dis¬ trict, shall operate exclusively within its limits, but not at all beyond them. The power given to Congress, is power to legislate exclusively in all cases over the district. What are the ap¬ propriate means of executing that power? To frame a code of laws having effect within the district only ; to establish courts having juris¬ diction within the district only, &c. But what are the powera claimed? Power to repeal the penal laws of a state ; power to pass laws ‘ ‘ that know no locality in the Union;” laws “that can encounter no geographical impediments;” laws “ whose march is through the Union.” I admit, that all the powers of Congress, except this of exclusive legislation in all cases, extend 338] throughout the Union; but this, bythe most express words, and from its natui-e, is local. Yet, in this case, by a power to legis¬ late for a district ten miles square. Congress is made to assume a power to legislate over the whole Union; and because an act is authorized to be done in Columbia, over which Congress may legislate in all cases whatsoever, it is, therefore, to be a legal act when done in a state, the laws of such state notwithstanding.

The power given to Congress to legislate over the district in all cases whatsoever, is precisely of the same extent as if this had been the only power conferred on them. Now, had it been the only power conferred on Congress, could there have arisen any doubt about its extent? When Congress legislate for the District of Columbia, they are a local legislature. The authority to legislate over the district in all cases whatsoever, is as strictly limited as is that of the legislature of Delaware to legislate only over Delaware. The acts of the local legisla¬ ture have no operation beyond the limits of the place for which they legislate.

If this clause confers on Congress any legisla¬ tive power over the states, it must be of the kind granted. But the power granted is exclu¬ sive, and no one will contend, that an exclu¬ sive power to legislate over the states is con¬ ferred on Congress. The power given extends to all cases whatsoever, and no one will con¬ tend, that Congress have power to legislate over the states in all cases whatsoever. The grant is of an exclusive power in all cases over

1.— 5 Wheat. Rep. 317.

Wheat. 6.

ten miles square. The claim set up is a claim of paramount power over the whole United States.

*Any single measure which Congress

may adopt, must be justified by some single grant of power, or not' at all. No combination of several powers can authorize Congress to adopt a single measure which they could not adojit either by one or another of those powers, combined with the power to pa.ss necessary and proper laws for carrying such single power into effect.

There is no repugnancy between the acts of Virginia against selling lottery tickets within that state, and the power granted to Congress to legislate over the District of Columbia. There can be none; for the line of the district completely separates them. The act passed by Congress is confined to the district ; the act of the state legislature is confined to the state. How can there be any repugnancy? A power to legislate over Virginia cannot come into col¬ lision with a power to legislate over the district, unless those to whom they are entrusted pass the limits of their jurisdiction. It is not al¬ leged, that the legislature of Virginia have passed the limits of their jurisdiction. If Con¬ gress have authorized a lottery to be drawn within the city, the sale of tickets, and the drawing of the lottery are thereby legalized within the city. Congress have never said that lottery tickets may be sold in the states. Those tickets may be sold in any place where the local laws will admit. But that they should be sold in Virginia, where such a sale is un¬ lawful, Congress have neither enacted, or had power to enact. It is said, that without a power to sell the tickets, the power to draw the lottery is *ineffectual. I answer,

if a power to sell lottery tickets necessarily fol¬ lows a power to draw lotteries, as the lotteries must be drawn in the city, so there the tickets must be sold. The authority to sell is the au¬ thority to draw; and as the principal authority (to draw) is confined to the city, so is the con¬ sequent authority (to sell). Can the corpora¬ tion draw lotteries in the states? If not, where is their authority to sell where they have no authority to draw? If the seller of lottery tickets is the agent of the corporation, then they can clothe him with no legal authority to be executed in a state, contrary to the law of the state. The corporation must sell their tickets where they have authority, or where they are permitted to sell. If the seller was a purchaser of tickets, and desires to sell again, the city has no interest in that subsequent sale; and the purchaser must sell where he is per¬ mitted to sell. Why should the owners of these tickets liave an exclusive privilege in Virginia, to sell their tickets, contrary to the laws of the land?

It has been, in effect, maintained, that Con¬ gress may not only themselves legislate over the Union, but that they may exercise this power by substitute. Power to legislate over a state must be derived from the people; and cannot be transferred. If the power to legis¬ late over the city may be vested in the repre¬ sentatives of the people thereof, yet,, surely, a power to legislate over the states cannot be transferred to the representatives of the people of the city. When Congress pass an act which

275

341

Supreme Court of the United States.

1821

341] shall have the etfect of law in the states, it must be passed in pursuance of power delegated to them by the people of the states. The constitution declares, that “ all legislative power herein granted shall he vested in a Con¬ gress of the United States.” This vested power cannot he transferred to a corporation. It must he exercised hy Congress, and in the manner prescribed by the constitution. Legis¬ lative power is not, in its nature, transferable. The people do not consent to obey any laws except those passed by their representatives ac¬ cording to the constitution. They who legis¬ late for the nation must represent the nation. The corporation of Washington cannot receive power to legislate over the people of the United States. To incorporate the people of the city of Washington with power to make by-laws for the government and police of the city, is no tran,sfer of power. It is an authority to exer¬ cise an inherent power. There is in every body of people a natural inherent right to legislate for themselves; but small societies must have permission or authority, from the great societies, of which they form a part. Thus, Congress authorized the people of Mis¬ souri to form a constitution, and govern them¬ selves. Is this a transfer of power? No, cer¬ tainly ; it is an authority to exercise the inherent power of the people in governing themselves. Congress may authorize the people of W ash- ington, or the people of Arkansas, to govern themselves; but it was never heard, until this case arose, that a local corporation, authorized by Congress to legislate for themselves, could 342] pass laws of obligation throughout the Union; laws paramount in the states to the laws of the states.

It seems to have been considered by the advocates of the corporation, that what Con¬ gress authorizes to be done, that they do. This is not so. Congress authorized Missouri to form a constitution ; but Congress did not therefore form the constitution of Missouri. The cor¬ poration of Washington were left free to act on the subject of lotteries. They were em¬ powered to authorize the drawing of lotteries, and to pass the laws necessary and proper for carrying that power into effect. The law establishing the lotteiy in question, is the by¬ law of the corporation. The by-laws of the city of London are not acts of Parliament, or laws of the realm ; neither have the by-laws of the city of Washington any force beyond the limits of the city.

Congress have not said that the lottery tickets should be sold in the states. They have not even said that there shall be a lottery. Con¬ gress empowered the corporation to pass the law, and the corporation passed it; the ordi¬ nance of the corporation establishing a lottery, is no more a part of the act of Congress than the territorial laws now passing in Arkansas will be parts of the acts of Congress. It is not an act of Congress under which these tickets have been sold in Virginia, contrary to the laws of that state; it is a by-law of the corpora¬ tion of Washington that gave existence to this lottery. An act of Congress does not apply to the case;. and therefore this court have no juris¬ diction under the judiciary act.

343] The powers of the corporation of W ashington are confined within the limits of 27()

the city. Being a corporation for government, all within the corporate limits are subject to them; but no others.' They cannot make a by-law affecting even their own members, be¬ yond the corporate limits ; they have no power to pass a law authorizing the sale of lottery tickets in Georgetown, much less have they the power to authorize the sale of them in a state, contrary to its laws. This by-law either ex¬ tends beyond the limits of the city, or it does not. If it does, it is void ; and if it does not, it can have no effect in Virginia. The by-laws of a corporation are to be subject to the laws of the land, even within their limits. The laws of the states are the laws of the land, within their limits, on subjects not committed to congress. To those laws all corporate laws are subject. - But there cannot be that kind of collision be¬ tween by-laws of the corporation of Washing¬ ton and state laws, as between the by-laws of the corporation of the city of London, and the laws of England. As the by-laws of London may come in collision with the laws of England, but cannot come in collision with the laws of Ire¬ land and Scotland, in those countries ; so the by¬ laws of the corporation of * Washington

may come in collision with the laws of the United States in the ten mile square; but can never come in collision wuth the laws of a state, for they cannot have operation in a state.

The court will maintain the powers of Con gross as granted by the people, and for the pur¬ poses for which they were granted by the peo¬ ple; and will, if possible, to preserve harmony, prevent the clashing of federal and state powers. Let each operate within their respective spheres ; and let each be confined to their assigned limits. We are all bound to support the con¬ stitution. How will that be best effected? Not by claiming and exercising unacknowledged power. The strength thus obtained will prove pernicious. The confidence of the people con¬ stitutes the real strength of this government. Nothing can so much endanger it as exciting the hostility of the state governments. With them it is to determine how long this govern¬ ment shall endure. I shall conclude by again reminding the court of a declaration of their own, that, “no power ought to be sought, much less adjudged, in favor of the United States, unless it be clearly within the reach of their constitutional charter.”

Mr. D. B. Ogden, contra, (1) stated, that he should not argue the general question whether this court had an appellate jurisdiction, in any case, from the state courts, because it had been already solemnly adjudged by this court, in the case of Martin v. Hunter.^

*2. This is a case arising under the

constitution and laws of the Union, and there¬ fore the jurisdiction of the federal courts ex¬ tends to it by the express letter of the constitu¬ tion ; and the case of Martin v. Hunter has de¬ termined that this jurisdiction may be exer¬ cised by this court in an appellate form. . But it is said, that the present case does not arise under the constitution and laws of the United

1. — 1 Bac. Abr. 644 ; 2 Comyn’s Dig.

1 Nets. Abr. 415 ; T. Jones 1ft; 1 N Yeates, (Penn.) 478.

154 ; 3 Mod. 159 ; els. Abr. 413; 3

and 8 Co. Rep. 126.

3. — Wheat. Rep. 304.

Wheat. 6.

1821

Cohens v. Virginia.

845

States, because the legislative powers of Con¬ gress, as i-espects the District of Columbia, are limited and confined to that district. But, if the law be thus limited in its operation, how is this to be discovered but by. examining the constitution? and how is this examination to be had but by taking jurisdiction of the case? In the whole argument, constant reference was had, and necessarily had, to the constitution, in order to decide the case between the parties, upon this question of jurisdiction ; and yet it is said to be a case not arising under the consti¬ tution. It is also contended, that it is not an act of Congress, the validity of which is drawn in question in the present case; but an or¬ dinance of the corporation of the city of Wash¬ ington ; and the maxim of delegatus non potest delegare, is referred to, in order to show that the corporation cannot exercise the legislative power of Congress. Is it meant by this to as¬ sert that Congress cannot authorize the cor¬ poration to make by-laws? Even the sound¬ ness of this position cannot be determined without examining the constitution and acts of Congress, and adjudging upon their interpreta¬ tion. The whole District of Columbia, and all its subordinate municipal corporations, are the 346] creatures of the constitution ; and the acts of Congress, relative to it, must be deter¬ mined by the constitution, and must be laws of the United States. Are not the extent of the powers vested in Congress, and the manner in which these powers are to be executed, neces¬ sarily, questions arising under the constitution, by which the powers are given? How can the question, whether this is a lottery authorized by an ordinance of the corporation, and not by a law of the United States, be decided, but by a reference to the laws of the Union, and the constitution under which they were enacted? The plaintiffs in error set up a right to sell lottery tickets in the state of Virginia, under the constitution and laws of the United States, and the state denies it. By whom is this question to be decided? It is a privilege or exemption, within the very words of the ju¬ diciary act, set up or claimed, by the party, under the constitution and laws of the Union. It is immaterial for the present purpose whether the claim be well or ill founded. The question is, whether the party setting up the claim, is to be turned out of court, without being heard upon the merits of his case. If you have not jurisdiction, you cannot hear him upon the merits. Upon this motion to quash the writ of error, you can only inquire into the jurisdiction, and cannot look into the merits; but you are a.sked to turn the party out of court for defect of jurisdiction, and without giving him an opportunity to show that by the laws and constitution of the Union, he is entitled to the privilege and exemption which he claims. It is no answer to say that 347] any individual may allege that he has such a privilege, in order to re¬ move his case from the state court to this; because no injury would ensue, as the case would be sent back with damages; and even if there might be some inconveniences, from improperly bringing causes here, they ought rather to be submitted to, than to hazard the possible violation of the constitutional rights of a citizen.

Wheat. 6.

judicial powers' of this court, that the de¬ fendant in error is one of the states of the Union. Its authority extends, in terms, to all cases arising under the constitution, laws, and treaties of the United States; and if there be any implied exceptions, it is incumbent on the party setting up the exception to show it. In order to except the states, it is said that they are sovereign and independent societies, and therefore not subject to the jurisdiction of any human tribunal. But we deny, that since the establishment of the national constitution, there is any such thing as a sovereign state, in¬ dependent of the Union. The people of the United States are the sole sovereign authority of this country. By them, and for them, the constitution was established. The people of the United States in general, and that of Vir¬ ginia in particular, have taken away from the state governments certain authorities which they had before, so that they are no longer sovereign and independent in that sense which exempts them from all coercion by judicial tribunals. Every state is limited in its powers by the provision of the constitution; and whether a state passes those limits, is a ques¬ tion *which the people of the Union

have not thought fit to trust to the state legisla¬ tures or judiciaries, but have conferred it ex¬ clusively on this court. The court would have the jurisdiction without the word state being mentioned in the constitution. The term “ all cases,” means all, without exception; and the states of the Union cannot be excepted, by im¬ plication, because they have ceased to be abso¬ lutely sovereign and independent. The con¬ stitution declares that every citizen of one state, shall have all the privileges of the citi¬ zens of every other state. Suppose Virginia were to declare the citizens of Maryland aliens, and proceed to escheat their lands by inquest of office ; the party is without a remedy, unless he can look for protection to this court, which is the guardian of constitu¬ tional rights. Because the state, which is the wrong-doer, is a party to the suit, is that a reason why he should not have redress? By the original text of the constitution, there is no limitation in respect to the character of the parties, where the case arises under the consti¬ tution, laws, and treaties of the Union; and the amendment to the constitution respect¬ ing the suability of states, merely applies to the other class of cases, where it is the charac¬ ter of the parties, and not the nature of the con¬ troversy, which alone gives jurisdiction. The original clause giving jurisdiction on account of the character of the parties, as aliens, citi- zens of different states, &c. , does not limit, but extends the judicial power of the Union. The amendment applies to that alone. It leaves a suit between a state and a citizen, arising under the constitution, laws, &c., where it

found it; and the states are still liable to be sued by a citizen, where the jurisdiction arises in this manner, and not merely out of the character of the parties. The jurisdiction in the present case qrises out of the subject-matter of the controversy, and not out of the charac¬ ter of the parties ; and, consequently, is not af¬ fected by the amendment.

But it is said, that admitting the court has

277

349

SuPKEMR Court of the United States.

1821

jurisdiction where a state is a party, still that jurisdiction must he original, and not appel¬ late ; because the constitution declares, that in cases in which a state shall he party, the Su¬ preme Court shall have original jurisdiction, and in all other cases, appellate jurisdiction. The answer is, that this provision was merely intended to prevent states from being sued in the inferior courts of the Union; that the Su¬ preme Court is to have appellate jurisdiction in all cases arising under the constitution, laws, and treaties of tlie United States; that where, in such a case, a state sues in its own courts, it must be understood as renouncing its privilege or exemption, and to submit itself to the ap¬ pellate power of this court; since, if the juris¬ diction in this class of cases be concurrent, it cannot be exercised originally in the Supreme Court, wherever the state chooses to commence the suit in its own courts. N or is there any hard¬ ship in this construction. The state cannot be sued in its own courts; but if it commences a suit there against a citizen, and a question arises in that suit under the constitution, laws, and treaties of the Union, there must be power in this court to revise the decision of the state 350 ] court, in order to produce uniformity in the construction of the constitution, &c. So, if a consul sues in the Circuit Court, this court has appellate jurisdiction, although the consul could not be sued in the Circuit Court. And if the United States, who cannot be sued any¬ where, think proper to sue in the District or Circuit Court, they are amenable to the appel¬ late jurisdiction of this court. Even granting, therefore, that a state cannot be sued in any case ; the state is not sued here : she has sued a citizen, in her own tribunals, who implores the protection of this high court to give him the benefit of the constitution and laws of the Union. The jurisdiction does not act on the state ; it merely prevents the state from acting on a citizen, and depriving him of his consti¬ tutional and legal rights.

It is true, there are some cases where this court cannot take jurisdiction, though the con¬ stitution and laws of the Union are violated by a state. But wherever a case is fit for judicial cognizance, or wherever the state tribunals tak^e cognizance of it, whether properly or not, the appellate power of this court may intervene, and protect the constitution and laws of the Union from violation. Doubtless, a state might grant titles of nobility, raise and support ar-

1. — Clarke v. Harwood, 3 Dali. 342 ; Gordon v.

Caldcleugh, 3 Cranch, 268; Smith v. Maryland, 6 Cranch, 286 ; Matthews v. Zane, i Cranch, 382 ; Ow- angs V. Norwood’s Lessee, 5 Cranch, 344; Martin v. Hunter, 1 Wheat. Rep. 304 ; Otis v. Walter, 2 Wheat. Rep. 18 ; Miller v. Nicholls, 4 Wheat. Rep. 311 ; Gel- Bton V. Hoyt, 3 Wheat. Rep. 246 ; M’Intire v. Wood, 7 Cranch, 50.5 ; Slocum v. Mayberry, 2 Wheat. Rep. 1 ; M’Culioch V. Maryland, 4 Wheat. Rep. 316.

would subsist between the national and the state courts in these instances of concurrent jurisdic¬ tion ? I answer, that an appeal vvould certainlj' lie from the latter t o the Supreme Court of the U nited States. The constitution in direct terms gives an appellate jurisdiction to the Supreme Court in all the enumerated cases of federal cognizance, in which it is not to have an original one ; without a single expression to confine its operation to the in¬ ferior federal courts. The objects of appeal, not the tribunals from which it is to be made, are alone contemplated. From this circumstance, and from

278

mies and navies, and commit many other attacks upon the constitution, which this court could not repel. But if these attacks were made by judicial means, or if judicial means were used to compel obedience to these illegal measures, the authority of this court could, and would, intervene. Nor can *this argument ap-

ply to a case which is entirely judicial in its very origin, and, therefore, steers clear of the supposed difficulty of vindicating the constitu¬ tion and laws of the Union from violation in other cases which may be imagined.

Neither is this a criminal case. The offense in question is not made a misdemeanor by the law of Virginia. That law merely imposes a penalty, which may be recovered by action of debt, or information, or indictment. The pres¬ ent prosecution is a mere mode of recovering the penalty. But suppose it is a criminal case. The constitution declares, that the court shall have jurisdiction in all cases arising under it, or the laws and treaties of the Union; which includes criminal as well as civil cases ; unless, indeed. Congress has refused jurisdiction over the former in the judiciary act, which we insist it has not.

Mr. Pinkney, on the same side, (1) argued, that there was no authority produced, or which could be produced, for the position on the other side, that this court could not, constitu¬ tionally, exercise an appellate jurisdiction over the judgments or decrees of the slate courts, in cases ai'ising under the con.stitution, laws, and treaties of the Union. The judiciary act of 1789, c. 20, contains a cotemporaneous con¬ struction of the constitution in this respect, of great weight, considering who were the authors of that law; and which has been since confirm¬ ed by the repeated decisions of this court, con¬ stantly exercising *the jurisdiction in

question. ' This legislative and judicial expo¬ sition has been acquiesced in, since no attempt has ever been made to repeal the law upon the ground of its repugnancy to the constitution. Trandit in rem judicatam. But even before the constitution was adopted, and whilst it was submitted to public discussion, this interpreta¬ tion was given to it by its friends, who were anxious to avoid every objection which could render it obnoxious to state jealousy. But they well knew that this interpretation was unavoid¬ able, and the authors of the celebrated Letters of Publius or the Federalist, have stated it in explicit terms. ^

the reason of tbe thing, it ought to be construed to extend to the state tribunals. Either this must be the case or the local courts must tie e.xcluded from a concurrent jurisdiction in mat¬ ters of national concern, else the judiciary au¬ thority of the Union may be eluded at the pleasure of every plaintiff or prosecutor. Neither of these consequences ought, without evident necessity, to be involved ; the latter would be entirely inadmis¬ sible, as it would defeat some of the most import¬ ant and avowed purposes of the proposed gov'ern- ment,and would essentially embarrass its measures. Nor do I perceive any foundation for such a supposition. Agreeably to the remark already made, the national and state systems are to be regarded as one whole. The courts of the lat¬ ter will of course be natural auxiliaries to the exe¬ cution of the laws of the Union, and an appeal from them will as naturally lie to that tribunal which is destined to unite and assimilate the principles of national justice and the rules of na¬ tional decisions. The evident aim of the plan of the convention is, that all the causes of the speci-

Wheat. 6.

1821

Cohens v. Virginia.

353

353] But it is said, that the jurisdiction ■of the state courts is concurrent with those of the Union, over that class of cases arising un¬ der the constitution, laws, and treaties of the United States. This, however, is not of abso¬ lute necessity, but at the discretion of Congress, who may restrain and modify this concurrent jurisdiction, or render it exclusive in the federal tribunals at their pleasure. The supremacy of the national constitution and laws, is a funda¬ mental principle of the federal government, and would be entirely surrendered to state usurpa- 354] _ tion, if Congress could not, at its ■option, invest the courts of the Union with ex- ■clusive jurisdiction over this class of cases, or give those courts an appellate jurisdiction over them from the decisions of the state tribunals. Every other branch of federal authority might as well be surrendered. To part with this, leaves the Union a mere league or confederacy ■of states entirely sovereign and independent. This particular portion of the judicial power •of the Union is indispensably necessary to the ■existence of the Union. It is an axiom of political science, that the judicial power of every government must be commensurate with its legislative authority ; it must be adequate to the protection, enforcement, and assertion of all the other powers of the government. In some ■cases this power must necessarily be directly exercised by the federal tribunals, as in en¬ forcing the penal laws of the Union. But in other cases, it is merely a protecting power, and cannot, from the very nature of things, be exercised, in the first instance, byjthe courts of the Union. Such are suits between citizen and citizen on contract. Here the state courts must necessarily have original jurisdiction ; but if the party defendant sets up a defense, founded (for example) upon an act of the state legislature supposed to impair the obligation of contracts, and the decision of the state court is in favor of the law thus set up, the judicial authority of the Union must be exerted over the cause, or that clause' of the constitution which prohibits any state from making a law impairing the ob¬ ligation of contracts is a dead letter. There is nothing in the constitution which prohibits the 355 Jexercise of such a controlling authority. On the contrary, it is expressly declared, that where the case arises under the constitution and laws of the Union, the judicial power of the Union shall extend to it. It is the case, then, and not the forum in which it arises, that is to determine whether the judicial authority of the Union shall be exercised over it. But there is ■a class of cases which must necessarily originate in the state tribunals, because it cannot be known at the time the suit is commenced, whether it will or will not involve any question arising under the constitution and laws of the Union. Over this class of cases, then, the ■courts of the Union must have appellate juris¬ diction. The appellate power of this court is ■extended by the constitution to all cases within the judicial authority of the Union, and not in¬

cluded within the original jurisdiction of this court. Its appellate power, so far as respects the constitution, depends, then, on two questions only : is the case within the judicial power of the Union? and is it within the original cogni¬ zance of this court ? The first question being answered affirmatively, and the second nega¬ tively, the appellate power under the constitu¬ tion is completely established in any given case.

But the power of removing this class of causes, pendente Lite, is also denied; and it is said that the authority to remove, before judg¬ ment, a suit brought in the state court, into the federal court, is repugnant to the constitution. In Martin v. Hunter, the argu¬ ment was the other way, and it was in¬ sisted, that Congress ought to have given to this court the *power of evoking this

description of causes from the state tribunals, the moment any question arose respecting the constitution and laws of the Union, in order to avoid the offensive exercise of an appellate juris¬ diction over the state courts.^ Quacunque via data — it is immaterial ; for the power of re¬ moval, if it be not unconstitutional, is an ap¬ pellate power, and analogous to a writ of error. If it be unconstitutional, the neces.sity for the controlling power of a writ of error, is only the more manifest. Take away both, and the con¬ stitution, laws, and treaties of the Union lie at the mercy of the state judicatures.

Again. It is said, that the judges of the ■state courts take an oath to support the consti¬ tution of the Union, and the laws and treaties of the Union are their supreme law; and it is inferred that the constitution reposes implicit confidence in them, and there ought to be no revision of their judgments. But, it may be asked, if the constitution reposes this implicit ^confidence in the state tribunals, why does it authorize the establishment of federal courts, which, upon this supposition, would be wholly useless? And why are the members of the state legislatures and executives required to take the same oath? They are bound to sup¬ port the constitution by the same solemn sanc¬ tions, and yet their acts may confessedly be set aside by the national judicatures, as being re¬ pugnant to that constitution. The actual con¬ stitution of this country is not a government of confidence; it is a scheme of government *conceived in the spirit of jealousy,

and rendered adequate to all its own purposes, by its own means; and the judicial power of the Union is the principal means of giving effect to it. This it is which distinguishes it from the confederation. Experience has shown the necessity and wisdom of this provision. If tjie state courts may adjudicate conclusively for the Union, why may not the state legisla¬ tures legislate for it; and where is the utility of distinct and appropriate powers, if it cannot maintain them from violation? In Martin v. Hunter, the court considered this argument fully, and thought it operated the other way.

lied classes shall, for weighty public reasons, re¬ ceive their original or tiual determination in the courts of the Union. To coniine, therefore, the general expressions, giving appellate jurisdiction to the Supreme Court, to appeals from the sub¬ ordinate federal courts, instead of allowing their extension to the state courts, would be to abridge

Wheat. 6.

the latitude of the terms, in subversion of the in¬ tent, contrary to every sound .rule of interpreta¬ tion.” No. LXXXIII.

1.— 1 Wheat. Rep. 319.

3. — 1 Wheat. Rep. 319.

279

357

SxjPBBMB Court op the United States.

1821

The care which the constitution takes to make the state courts respect it, and the laws and treaties made under it, proves that it was sup¬ posed that cases might come before them by original suit, which would involve the rights and Interests of the Union, and lay a founda¬ tion for appeal or revision. This was .antici¬ pated, and the constitution endeavors to make the first decision correct, by the sanction of an oath. But it does not improvidently rely upon that alone. The judges of the inferior courts of the Union take the same oath, and lie under the same obligation ; but they are not the less subject to the appellate jurisdiction of the Su¬ preme Court.

But it is asked, can Congress grant an appeal from the District or Circuit Court, to a state court? The question is answered in the nega¬ tive, and it is thence inferred that they cannot 358] grant an appeal from a state to a federal court. This seems to imply that you can do nothing unless you can do its opposite. Such a proposition would repeal all the physical and moral laws of the universe. As well might it be asked, can Congress grant an appeal from the Supreme to the Di, strict Court? and because there is something absurd in the idea of an ap¬

peal from a superior to an inferior tribunal, it would be inferred that the opposite appeal could not be granted. But, until the relation of su¬ preme and subordinate is destroyed, the state laws and judicatures must be considered as sub¬ ordinate to those of the Union, in all cases with¬ in the scope of its powers and jurisdiction. Such was once the doctrine asserted by Virginia, herself, and to which it is confidently believed she will revert in a moment of calmer refiec- tion'.

*2. It is further contended on the

other side, that this court has no jurisdiction of the present case, because the writ of error pre¬ sents no question arising *under the

constitution or laws of the United States. And to show this, it is said that the record speaks only of the validity of the act of Con¬ gress, *and nobody denies its validity,

and therefore no question arises under an act of Congress. But the words of the judiciary act are pursued by this -writ of error, as they al¬ ways have been in other cases. It is the valid¬ ity of the act of Congress, and the validit5' of the act of Virginia, as compared with it, which are drawn into question. The court below de¬ cided against the first, and in favor of the last.

1.— The learned counsel here read the following- resolutions of the legisiature of Virginia:

Extract from the journal of the Senate of the commonwealth of Virginia, begun and held at the Capitol in the city of Richmond, the 4th day of December, 1809.

Friday, January 26, 1810. “Mr. Nelson reported from the committee to whom were committed the preamble and resolutions on the amendment pro¬ posed by the legislature of Pennsylvania,to the con¬ stitution of the United States,by the appointment of an impartial tribunal to decide disputes between the state and federal judiciary, that the committee had, according to order, taken the said preambles and resolutions under their consideration, and di¬ rected him to report them without any amend¬ ment. And on this question being put thereupon, the same were agreed to unanimously, by the House, as follows: The committee to whom was re¬ ferred the communication of the Governor of Pennsylvania, covering certain resolutions of the legislature of that state, proposing an amendment to the constitution of the United States, by the appointment of an Impartial tribunal to decide disputes between the state and federal judiciary, have had the same under their consideration, and are of opinion that a tribunal is already provided by the constitution of the United States, to wit : The Supreme Court,more eminently qualified from their habits and duties, from the mode of their selection, and from the tenure of their offices, to decide the disputes aforesaid, in an enlightened and Impartial manner, than any other tribunal which could be created. The members of the Su¬ preme Court are selected from those in the United States, who are most celebrated for virtue' and legal learning, not at the will of a single individual, but by the concurrent wishes of the President and Senate of the United States: they will therefore have no local prejudices and partialities. The du, ties they have to perform lead them necessarily to the most enlarged and accurate acquaintance with the jurisdiction of the federal, and several state courts, together with the admirable symmetry of our government. The tenure of their offices en¬ ables them to pronounce the sound and correct opinions they may have formed, without tear, fa¬ vor, or partiality. The amendment to the consti¬ tution proposed by Pennsylvania, seems to be founded upon the idea that the federal judiciary will, from a lust of power, enlarge their jurisdic¬ tion, to the total annihilation of the jurisdiction of the state courts ; that they will exercise their will instead of the law and the constitution. This argument, if it proves anything, would operate more strongly against the tribunal proposed to be created, which promises so little, than against the 280

Supreme Court, which, for the reasons given be- fore,have everything connected with their appoint¬ ment calculated to Insure confidence. What se¬ curity have we, were the proposed amendment adopted, that this tribunal would not substitute their will and their pleasure in place of the law? The judiciary are the weakest of the three depart¬ ments of government, and least dangerous to the political rights of the constitution. They hold neither the purse nor the sword ; and even to en¬ force their own judgments and decrees, must ulti¬ mately depend upon the executive arm. Should the federal judiciary, however, unmindful of their weakness, unmindful of the duty which they owe to themselves and their country, become corrupt and transcend the limits of their jurisdiction, would the proposed amendment oppose even a probable barrier to such an improbable- state of things? The creation of a tribunal such as is pro¬ posed by Pennsylvania, so tar as we are enabled t& form an idea of it, from the description given in the resolutions of the legislature of that state, would, in the opinion of your committee, tend rather to Invite, than prevent a collision between the federal and state courts. It might also become, in process of time, a serious and dangerous embar¬ rassment to the operations of the general govern¬ ment.

Resolved, therefore, that the legislature of this state do disapprove of the amendment tothe con¬ stitution of the United States proposed by the legislature of Pennsylvania.

Resolved, also, that his excellency the Governor, be, and is hereby requested to transmit forth¬ with, a copy of the foregoing preamble and reso¬ lutions to each of the senators and representatives of this state,in Congress,and to the executives of the several states in the Union, and request that the same be laid before the ieg-islatures thereof.

Extract from the journal of the House of Dele¬ gates of the commonwealth of Virginia:

“ Tuesday, January 23, 1810. The House, accord¬ ing to the order of the day, resolved itself into a committee of the whole house on the state of the commonwealth, and after some time spent therein, Mr. Speaker, resumed the chair, and Mr. Robert Stanard reported that the committee had, accord¬ ing to order, had under considei-ation the preamble and resolutions of the select committee to whom were referred that part of the Governor’s com¬ munication which relates to the amendment pro¬ posed to the constitution of the United States, by the legislature of Pennsylvania, had gone through the same, and directed him to report them to the House without amendment ; which he handed in at the clerk’s table, and the question being put on agreeing to the said preamble and resolutions, they were agreed to by the House unanimously.

Wheat. 6.

1821

Cohens v. Virginia.

361

to the full extent of the case. The validity of the act of Congress, means the effect attributed to it by the defendant who sets it up as a de¬ fense against so much of the act of the state as inflicts a penalty upon him for doing what the act of Congress authorizes. The defendant relies upon the act of Congress, as creating an exception in favor of his case, out of the act of Virginia. He says it is valid, or available, or eflicacious to create such an exception. That was the question which the record shows was before the court below ; and the court decided that it was not so valid, or available, or eflica¬ cious. Whether it is so or not, is the question which the writ of error presents for inquiry ; 362] and it is such a question as the appel- late power of this court can deal with. But the question on this motion to dismiss the writ of error, is not whether the act of Congress is valid as against the act of Virginia; but whether that question is presented by the record, so that this court can detennine it, after it has con¬ cluded to entertain the writ of error. It is the claim of a right, privilege, or exemption under the statute of the United States, which gives the jurisdiction.* The decision upon that claim, as it appears upon the record, is the exercise of the jurisdiction. That the claim to exemp¬ tion appears upon the record cannot he de¬ nied in this case more than any other. The claim may even be an absurd oile; hut this court cannot he called upon, on a motion to dismiss the writ of error, to condemn it as such. All argument upon the sufflciency of the claim is premature, so long as it is, sub judice, whether the court can examine its suf¬ flciency.

But it is said, that the question does notarise under any statute of the United States, but under a mere by-law of the city of Washing¬ ton; and that the case involves nothing but that by-law; and it is said to be absurd to call a by-law of the city of Washington a law of the United States. It is immaterial whether it be so or not. The by-law is . the execution of a power given by a law of the United States. The effect of the execution of that power, in¬ volves the effect of the law ; and although the execution of the power is not a law lof the 363] United States, yet that which gives the power is. The question, therefore, is, not what IS the mere effect of the execution of the power in the ab.stract, or unconnected with the law which gives it, hut what is the effect of the power by force of the law which gives it; and that question compels you to mount up to the constitution itself.

The course of the inquiry will then be: (1) What has the party done? and what is the im¬ mediate authority under which he did it? (2) What is the nature and extent of that authority ? what its qualities under the law which gave it, and the constitution under which that law was passed?

If an officer of the United States does any act for which a state court calls him to account, and he relies in his defense upon the authority, real or supposed, of a statute of Congress, his act is not a law of the United States; but his defense is referred to the effect and validity of a law of the United States, and that is again

1.— Wheat. Dig-. Dec. tit. Const. Law, V. (B.) 186. Wheat. 6.

referred to the constitution, which is the para¬ mount law. The last act done need not he a law of the United States. It is sufficient, if it is attempted to he justified, or its consequences maintained, under a law of the United States, which it is alleged gave to it a protecting power in the case before the cotirt.

It is, however, asserted, that the constitution gives jurisdiction only in cases ai-ising under it, or the laws, or treaties of the United States; and that this case does not arise under a law of the United States, because the act of Congress now in question is not a law of the United States. An act of the Congress, *in its

r capacity of local sovereign of the District of Columbia, is said not to be a law of the United States. But whose law, then, is it? The United States in Congress assembled, are the local sov-' ereigns of the district, and it is by them that this law is passed. Is it less a law of the United States, because it does not operate directly upon the Union at large? A statute is not a law of the United States on account of the subject on which it acts being limited or unlimited. It is a law of the United States, because it is passed by the legislative power of the United States. The legislative authority over the District of Columbia, is that of the Union. Its sphere is limited, but the power itself is even greater than the general federal power of the Union. It is the power of the people and the states combined, exerted upon their peculiar domain. It is the same Congress which passes both de¬ scription of laws. The question, whether the law operates beyond the district, is the question upon the merits hereafter to be discussed.

Again, it is said, that the by-law alone is in question, and not the act of Congress : because the by-law is not passed by virtue of the act of Congress, hut by virtue of the inherent power of the people of the district to govern them¬ selves. The act of Congress only calls this in¬ herent power into action: and this inherent power, when so called into action, is the only power which this court can deal with. The fallacy of this argument consists in its con¬ founding inherent power with an inherent ca¬ pacity to receive power. The subordinate legislative power of the *territories and [*365 districts, which belong to the Union in full sovereignty, is not their power, hut that of their superior. But admit this abstract doc¬ trine of inherent power : the question still recurs, what is the constitutional effect of this power being excited into action by the paramount power. The action of the inherent power wilt still depend upon the power by which it is set in motion; and what it can, or cannot do, under that impulse, is just the same question with the ' other.

It is also objected, that a law emanating from the local power of Congress over the Dis¬ trict of Columbia, cannot bind the Union. But whether it can or not is the very question to be determined, when the merits come to be discussed ; which the writ of error gives author¬ ity to decide ; and which cannot he decided without entertaining the writ of error. The argument on the other side, proceeds in a viti- ous circle. It is asserted, that you must quash the writ of error, because you have no jurisdic¬ tion over the case or question. It is, then, said, that you must take jurisdiction of, and inquire

281

365

Supreme Court op the United States.

1821

into, the case and the question, in order that you may dismiss the writ of error; or, in other words, you have, and you have not, jurisdiction over the case and question, and you ought to decide them in order to see that you ought not to decide them. And here again the supposed absurdity of the claim of protec¬ tion, by the defendant on the record, against the act of Virginia, is urged to authorize a re¬ fusal to inquire upon the writ of error, whether it is absurd or not.

366*] *3. The next ground of objection to

the jurisdiction is, that the writ of error is itself a suit against a state by a citizen of that or some other state. And Eac. Abr. tit. Error (L.), is cited as an authority to show, that a re¬ lease of all suits is a release of a writ of error. But even admitting that it may sometimes be technically called a suit, it is not such a suit as is contemplated by the constitution. A writ of error, where a party is to be restored to some¬ thing, may be released by a release of all suits or actions, because in this respect it resembles an action. But this writ of error is not a suit, because the party is not to be restored to any¬ thing. A reversal of the judgment below will leave things just as they were before the judg¬ ment. But the state of Virginia is not com¬ pelled to come into this court by the writ of error. A citation, or scire facias ad audiendum err&res, is only notice to the state, leaving it at her option voluntarily to appear. It does not act compulsorily upon the state. It acts upon the court, which she has used as the instrument to enforce her law. A case is presented by the interference of the judiciary of the state, for the interposition of the appellate power of this court. The object is to reverse the judgment, and that done, there is an end of the exercise of power. The United States are liable to the same coercion. They may he called before this court in the same manner, and the judgments obtained in their favor may be reversed. And is it, then, derogatory to the sovereignty of a particular state, that its judgments should be liable to be controlled in the- same manner, in 367 ] cases within the judicial power of the Union? This control is exerted upon the judi¬ ciary; upon the judgments of the judiciary. The state is incidentally affected ; but that has been already determined in this court to be im¬ material.* Nor is this sort of control more ex¬ ceptionable than that which is constantly exer¬ cised, in suits between private parties, over the acts of the state legislatures and executives, upon the same ground of their repugnancy to the constitution and laws of the Union.

If it be asked whether you can give costs against the state, and enforce the payment, the answer is, that you cannot do so in any case upon a mere reversal of a judgment. And even if you could in a case between private parties, is it any objection to the appellate jurisdiction of this court, where the United States are plaintiffs below, that you cannot award and en¬ force the payment of costs against them? It is not jurisdiction over the state of Virginia that is claimed, but over a question arising under the laws of that state, and over the judgments of her courts construing those laws. This point is inci¬ dentally touched in Martin v. Hunter, in consid-

1.— Wheat. Dig. Dec. tit. Const. Law, V. (C.) 211.

282

ering the question as to removal of suits, before judgment, and it is there said by the court that the remedy of removal of suits would be utterly inadequate to the purposes of the con¬ stitution, if it could act only on the parties, and not upon the state courts. ^

*4. Lastly. It is insisted, for the de- [*368 fendant in error, that this court has no jurisdic¬ tion in the present case, because a state is a party to the original controversy which the writ of error brings before the court. That the jurisdiction of this court in all cases, where a state is a party, is original, and therefore it cannot have appellate jurisdiction in this case.

The obvious answer to this argument is, that the jurisdiction now claimed does not arise under that part of the constitution which gives original jurisdiction to the Supreme Court in cases in which a state is a party ; but the juris¬ diction is asserted under that clause which gives the federal judiciary cognizance of all cases arising under the constitution, laws, and treat¬ ies of the United States, without regard to the eharacter of the parties. In this latter class of cases the Supreme Court has appellate jurisdic¬ tion. In some of this description of cases, the jurisdiction could not be originally exercised. The penal laws of a state cannot be originally enforced, or enforced at all, by a judieature of the Union. They cannot therefore form the subject of, or create subjects for, its original jurisdiction. The courts of the United States can here exert only a controlling or restraining power for the protection of the rights of the Union, and this can only be done by appeal or writ of error. This view of the subject is taken in Martin v. Hunter. The court there says: “ Suppose an indictment for a crime in a state court, and the defendant should allege, in his defense, that the crime was committed by an ex post facto act of the state; must not the state court, in *the exercise of a jurisdictiom [*369 which has already rightfully attached, have a right to pronounce on the sufficiency and. validity of the defense? It would be extremely difficult, upon any legal principles, to give a negative answer to these inquiries. Innumer¬ able instances of the same sort might be stated in illustration of the position ; and unless the state courts could sustain jurisdiction in such cases, this elause of the sixth article would be with¬ out meaning or effect, and public mischiefs of a most enormous magnitude would inevitably ensue.” ^ So the court afterwards say, in the context of the passage before cited, speaking of the inadequacy of the remedy of removal of suits to accomplish the purposes of the eonstitu- tion, “ in respect to criminal prosecutions, the difficulty seems admitted to be insurmount¬ able,”® (fee. What difficulty? The difficulty of controlling them by the courts of the United States without the aid of a writ of error, he eause those courts could take no original cog¬ nizance of this description of cases, and they could not be removed before judgment. As, then, the federal courts have no original juris¬ diction of cases arising merely under the con¬ stitution, laws, and treaties of the Union, it fol¬ lows, that the clause of the constitution which

2. — 1 Wheat. Rep. 350.

3. — 1 Wheat. Rep. 341.

Wheat. 6.

1821

Cohens v. Virginia.

369

speaks of cases in which a state shall be a party, does not apply to it ; and the appellate power, now in question, is to he sought for in that part of the same article which declares, that the judicial power of the Union shall extend to all 370^ cases arising under the ^constitution, laws, and treaties of the Union, coupled with the subsequent provision, which declares, that in all ca,ses to which that judicial power ex¬ tends, this court shall have appellate, where it has not original jurisdiction, with such excep¬ tions, and under such regulations as Congress may prescribe. That it has appellate jurisdic¬ tion in all cases arising under the constitution, laws, and treaties of the United States, is es¬ tablished by the authority of the case of Mar¬ tin V. Hunter; and that this appellate power is competent to control the state courts, is also proved by that case. ‘ There is, therefore, no open question but this : Does the fact of a state being a party prosecutor in the state court, make this case an exeeption, and take it out of the general rule? Upon the plain policy and purpose of the constitution it does not. This jurisdiction has already been shown to be differ¬ ent in its nature from the original jurisdiction which was exercised over states before the amendment of the constitution. But that other jurisdiction will go far to show that there is nothing unnatural in giving appellate power over state courts in cases where a state is a party plaintiff. The constitution authorized direct coercion over states or private citizens indifferently. The amendment has partly taken this away ; hut the spirit of the constitution is still manifested by the former provision. The same constitution also authorized appellate con¬ trol over state courts; and is it natural that it should condemn the same control, merely he- 371 ] cause a state has obtained the judgment to be revised ? The constitution had no delicacy with regard to states on this matter. It con¬ sidered them as directly amenable where orig¬ inal jurisdiction can be exerted. Why not em¬ power its tribunals to affect their interests in an appellate form, by acting, not on the state, but on its courts, as unquestionably it does in all cases where individuals are parties below ? The appellate power is trifling, compared with the original as it formerly stood ; and a constitu¬ tion which gave the last could have no scruples about the first. The appellate control is re¬ spectful to the state .sovereignties compared with the original; and it stands upon high con¬ siderations of self-defen.se, upon grounds of constitutional necessity not applicable to the other. The suability of the states might have been di.spensed with, and the constitution still be safe. But the judicial control of the Union over state encroachments and usurpations, was indispen.sable to the sovereignty of the consti¬ tution — to its integrity— to its very existence. Take it away, and the Union becomes again a loose and feeble confederacy — a government of false and foolish confidence — a delusion and a mockery! Why is it in case.s, in which indi¬ viduals" are parties in a state court, that the judgment may be revised in this court? Because the judiciary of the Union ought to po,s,se.ss ample power to preserve the constitution and laws, and treaties of the Union, from violation

1.— 1 Wheat. Rep. 304.

Wheat. 6.

by other judicatures. Its judicial powers should be commensurate with its other powers and rights, and prerogatives. They might else be evaded and ^trampled under foot by [*37 2 judicatures in which the constitution does not confide. This high motive is as strong, at least, where a state is plaintiff or prosecutor in its own courts, as where it is not. Indeed, it is far stronger; for all the motives to judicial leanings and partialities here operate in theh fulle.st force, though the state judges may not be con.scious of their influence. The sover¬ eignty of the state law — state pride — state in¬ terests — are here in paramount vigor as in¬ ducements to error ; and judicial usurpation is countenanced by legislative support and popu¬ lar prejudice. Let the court look to the conse¬ quences of this distinction. A state passes a law repugnant to the national constitution. It gives a remedy in thg name of an individual — a common informer. You may control this law", if the state judiciary acts upon it. But the state may avoid this (as it seems) by author¬ izing the remedy in its own name; and you thus lose your protecting jurisdiction over the subject, although you might still exercise it, as in the other case, in the inoffensive mode of confining your control to the state judiciary. The whole constitution of the Union might thus be overturned unless force should be re¬ sorted to; and the object of the constitution w'as to avoid force, by giving ordinary judicial power of correction.

It has been said that a sovereign state of the Union is not amenable to judicature, unless made so by express word.s — eo nomine. I deny this as respects appellate jurisdiction, which acts, not on the state, but on its courts. The words of the constitution *are suffi- [*373 ciently express, and all reason is on that side; especially since it is, or must be admitted, that these courts may be thus controlled, and the legislative power of the state be reached through them, and controlled also; and especially, too, when the constitution has not scrupled, in other cases, to subject Bie states to direct control.

But it is contended, that there are cases aris¬ ing under the constitution and laws of the Union, which, from their very nature, are not the subjects of judicial cognizance, and con¬ sequently are exceptions out of the general grant of judicial power under the constitution; such as the prohibition to the states to grant titles of nobility, &c. ; and that the present case may be such an exception. But the very sup¬ position admits, that if the case in question is suited to the exertion of judicial power, it is not an exception ; and the moment a state judi¬ ciary intervenes, judicial jurisdiction can, and ought to be exerted. It is unnecessary to in¬ quire how the case must, in general, exist, in order to become the proper object of judicial cog¬ nizance ; for here it does exist in a proper shape for that purpose. A state court has intervened, and the regular appellate power of this court may act. Nor does the proof of some excep¬ tions, arising from necessity, establish other ex¬ ceptions free from that necessity. Many un¬ lawful things cannot be restrained by judica¬ ture; but does it follow that where they can be restrained, they shall not?

Again. It is said that the states maj^ destroy the federal government at their pleasure, mere-

283

374

Supreme Court oe the United States.

1821

374] ly by forbearing to elect senators, and to provide for the election of a President and respresentatives, and that the authority of the Union is incompetent to coerce them. Such extreme arguments prove nothing to the present purpose; but suppose the states could not be coerced in such a case to do their duty, because no intervening court or agent is necessary to the accomplishment of such a desperate pur¬ pose, does this prove that you cannot defensive¬ ly control active violations of the constitution or laws, when a controllable judicature or agent intervenes to perpetrate these violations?

It is also said, that this is a prosecution un¬ der a penal statute, and that criminal cases peculiarly belong to the domestic forum. The answer is, that so was the case of M’ Ciilloch v. Maryland, a qui tam action, under a penal law of that state, giving one-half of the penal¬ ty to the state, and the either half to the in¬ former; yet this court did not consider the nature of the suit, or the circumstance of a state being a party, as fonning a valid objec¬ tion to the jurisdiction .’ Nobody objects to a state enforcing its own penal laws ; all that is claimed is, that in executing them, it should not violate the laws of the Union, which are paramount. Sic utere tiio ut alienum non kedns.

The other suppositions which have been stat¬ ed of bills of attainder and ex post facto laws passed by the states, and attempted to be ex¬ ecuted, but decided by this court to be uncon- 375] stitutional, and yet the state courts persisting in carrying them into effect, even in capital cases, are too wild and extravagant to illustrate any question which can ever practical¬ ly arise.

Mr. Chief Justice Marshall delivered the opinion of the court ;

This is a writ of error to a judgment render¬ ed in the Court of Hustings for the borough of Norfolk, on an information for selling lottery tickets, contrary to an act of the legislature of Virginia. In the state court, the defendant claimed the protection of an act of Congress. A case was agreed between the parties, which states the act of Assembly on which the prose-. cution was founded, and the act of Congress on which the defendant relied, and concludes in these words: “If upon this case the court shall be of opinion that the acts of Congress before mentioned were valid, and on the true construction of those acts, the lottery tickets sold by the defendants as aforesaid, might law¬ fully be sold within the state of Virginia, not¬ withstanding the act or statute of the General Assembly of Virginia prohibiting such sale, then judgment to be entered for the defendants. And if the court should be of opinion that the statute or act of the General Assembly of the state of Virginia, prohibiting such sale, is valid, notwithstanding the said acts of Congre.ss, then judgment to be entered that the defendants are guilty, and that the commonwealth recover against them one hundred dollars and costs.

37 6] Judgment was rendered against the defendants; and the court in which it was ren¬ dered being the highest court of the state in which the cause was cognizable, the record has

1.— 4 Wheat. Rep. 316.

284

been brought into this court by a writ of error. ^

The defendant in error moves to dismiss this writ, for want of jurisdiction.

In support of tliis motion, three points have been made, and argued with the ability which the importance of the question merits. These points are :

1st. That a state is a defendant.

2d. That no writ of error lies from this court to a state court.

3d. The third point has been presented in different forms by the gentlemen who have argued if. The counsel who opened the cause said, that the want of jurisdiction was shown by the subject-matter of the case. The counsel who followed him said, that jurisdiction was not given by the judiciary act. The court has bestowed all its attention on the arguments of both gentlemen, and supposes that their ten¬ dency is to show that this court has no juris¬ diction of the case, or, in other words, has no right to review the judgment of the state court, because neither the constitution nor any law of the United States has been violated by that judgment.

The questions presented to the court by the two *first points made at ^he bar are [*377 of great magnitude, and may be truly said vitally to affect the Union. They exclude the inquiry whether the constitution and laws of the United States have been violated by the judgment which the plaintiffs in error seek to review ; and maintain that, admitting such vio¬ lation, it is not in the power of the government to apply a corrective. They maintain that the nation does not possess a department capable of restraining peaceably, and by authority of law, any attempts which may be made, by a part, against the legitimate powers of the whole ; and that the government is reduced to the alternative of submitting to such attempts, or of resisting them by force. They maintain that the constitution of the United" States has provided no tribunal for the final construction of itself, or of the laws or treaties of the nation ; but that this power may be exercised in the last resort by the courts of every state of the Union. That the constitution, laws, and treaties, may receive as many constructions as there are states ; and that this is not a mischief, or, if a mischief, is irremediable. These abstract propositions are to be determined; for he who demands decision without permitting inquiry, affirms that the decision he asks does not depend on inquiry.

If such be the constitution, it is the duty of the court to bow with respectful submission to its provisions. If such be not the constitution, it is equally the duty of this court to say so; and to perform that task which the American people have assigned to the judicial department.

*lst. The first question to be con- [*378 sidered is, whether the jurisdiction of this court is excluded by the character of the parties, one of them being a state, and the other a citizen of that state?

The second section of the third article of the

2.— The plaintiff in error prayed an appeal from the judgrment of the Court of Hustings, but it was refused, on the ground that there was no higher state ti'ibunal which could take cognizance of the case.

Wheat. 6.

1821

Cohens v. Virginia.

378

constitution defines the extent of the judicial power of the United States. Jurisdiction is given to the courts of the Union in two classes of cases. In the first, their jurisdiction depends on the character of the cause, whoever may be the parties. This class comprehends “ all cases in law and equity arising under this constitution, the laws of the United States, and treaties made, or which shall be made, under their au¬ thority.” This clause extends the jurisdiction of the court to all the cases described, without making in its terms any exception whatever, and without any regard to the condition of the party. If there be any exception, it is to be implied against the express words of the article.

In the second class, the jurisdiction depends entirely on the character of the parties. In this are comprehended ‘ ‘ controversies between two or more states, between a state and citizens of another state,” “and between a state and foreign states, citizens or subjects.” If these be the parties, it is entirely unimportant what may be the subject of controversy. Be it what it may, these parties have a constitutional right to come into the courts of the Union.

The counsel for the defendant in error have stated that the cases which arise under the con¬ stitution must grow out of those provisions 370] wliich are capable of self-execution ; examples of which are to be found in the 2d section of the 4th article, and in the 10th section of the 1st article.

A case which arises under a law of the United States must, we are likewise told, be a right given by some act which becomes necessary to execute the powers given in the constitution, of which the law of naturalization is mentioned as an example.

The use intended to be made of this expo¬ sition of the finst part of the section, defining the extent of the judicial power, is not clearly understood. If the intention be merely to distinguish cases arising under the constitution, from those arising under a law, for the sake of precision in the application of this argument, these propositions will not be controverted. If it be to maintain that a case arising under the constitution, or a law, must be one in which a party comes into court to demand something conferred on him by the constitution or a law, we think the construction too narrow. A case in law or equity consists of the right of the one party, as well as of the other, and may truly be said to arise under the constitution or a law of the United States, whenever its correct decision depends on the construction of either. C'ongre.ss seems to have intended to give its own con¬ struction of this part of the constitution in the 2oth section of the judiciary act; and we per¬ ceive no reason to depart from that construc¬ tion.

The jurisdiction of the court, then, being ex¬ tended by the letter of the constitution to all cases arising under it, or under the laws of the United States, it follows that those who would 380] withdraw any case of this description from that jurisdiction, must sustain the ex¬ emption they claim on the .spirit and true mean¬ ing of the constitution, which spirit and true meaning must be so apparent as to overrule the words which its framers have employed.

The counsel for the defendant in error have undertaken to do this ; and have laid down the

Wheat. 6.

general proposition, that a sovereign indepen¬ dent state is not suable except by its own con¬ sent.

This general proposition will not be contro¬ verted. But its consent is not requisite in each particular case. It may be given in a general law. And if a state has surrendered any por¬ tion of its sovereignty, the question whether a liability to suit be a part of this portion, de¬ pends on the instrument by which the surren¬ der is made. If, upon a just construction of that instrument, it shall appear that the state has submitted to be sued, then it has parted with this sovereign right of judging in every case on the justice of its own pretensions, and has entrusted that power to a tribunal in whose impartiality it confides.

The American States, as well as the Ameri¬ can people, have believed a close and firm Union to be essential to their liberty and to their happiness. They have been taught by ex¬ perience, that this Union cannot exist without a government for the whole; and they have been, taught by the same experience that this government would be a mere shadow, that must disappoint all their hopes, unless invested with large portions of that sovereignty which belongs to independent states. Under the in¬ fluence of this opinion, and thus instructed by experience, *the American people, in [*381 the conventions of their respective states, adopted the present constitution.

If it could be doubted, whether fi’om its nature, it were not supreme in all cases where it is empowered to act, that doubt would be removed by the declaration, that ‘ ‘ this consti¬ tution, and the laws of the United States, which shall be ma,de in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby ; anything in the constitution or laws of any state to the contrary notwithstanding. ”

This is the authoritative language of the American people ; and, if gentlemen please, of the American States. It marks, with lines too strong to be mistaken, the characteristic dis¬ tinction between the government of the Union and those of the states. The general govern¬ ment, though limited as to its objects, is supreme with respect to those objects. This principle is a part of the constitution ; and if there be any who deny its necessity, none can deny its authority.

To this supreme government ample powei’s are confided ; and if it were possible to doubt the great purposes for which they were so con¬ fided, the people of the United States have de¬ clared, that they are given “ in order to form a more perfect union, establish justice, ensure domestic tranquility, provide for the common defense, promote the general welfare, and secure the ble.ssings of liberty to themselves and their posterity.”

*With the ample powers confided to [*382 this supreme government, for these interesting purposes, are connected many express and im¬ portant limitations on the sovereignty of the states, which are made for the same purposes. The powers of the Union, on the great subjects of war, peace, and commerce, and on many others, are in themselves limitations of the

285

383

SuPKEME Court of the United States.

1831

sovereignty of the states; but in addition to these, the sovereignty of the states is surren¬ dered in many instances where the surrender can only operate to the benefit of the people, and where, perhaps, no other power is confer¬ red on Congress than a conservative power to maintain the principles established in the con¬ stitution. The maintenance of these princi¬ ples in their purity, is certainly among the great duties of the government. One of the instruments by which this duty may be peace¬ ably performed, is the judicial department. It is authorized to decide all cases of every de¬ scription, arising under the constitution or laws of the United States. From this general grant of jurisdiction, no exception is made of those cases in which a state may be a party. When we consider the situation of the government of the Union and of a state, in relation to each other; the nature of our constitution ; the sub¬ ordination of the state governments to that constitution; the great purpose for which jurisdiction over all cases arising under the constitution and laws of the United States is confided to the judicial department, are we at liberty to insert in this general grant, an ex¬ ception of those cases in which a state may be a 383] *party? Will the spirit of the constitu¬ tion justify this attempt to control its words? We think it will not. We think a case arising under the constitution or laws of the United States, is cognizable in the courts of the Union, whoever may be the parties to that case.

Had any doubt existed with respect to the just construction of this part of the section, that doubt would have been removed by the enu¬ meration of those cases to which the jurisdiction of the federal courts is extended, in consequence of the character of the parties. In that enumer¬ ation, we find, “ controversies between two or more states, between a state and citizen of an¬ other state, ” ‘ ‘ and between a state and foreign states, citizens, or subjects.”

One of the express objects, then, for which the judicial department was established, is the decision of controversies between states, and between a state and individuals. The mere circumstance, that a state is a party, gives ju¬ risdiction to the court. How, then, can it be contended, that the very same instrument, in the very same section, should be so construed as that this same circumstance should withdraw a case from the jurisdiction of the court, where the constitution or laws of the United States are supposed to have been violated? The con stitution gave to every person having a claim upon a state, a right to submit his case to the court of the nation. However unimportant his claim might be, however little the community might be intere.sted in its decision, the framers of our constitution thought it necessary, for the purposes of justice, to provide a tribunal 384] a8 superior to influence as possible, in which that claim might be decided. Can it be imagined, that the same persons considered a case involving the constitution of our country and the majesty of the law.s — questions in which every American citizen must he deeply inter¬ ested — as withdrawn from this tribunal, because a .state is a party?

■ While weighing arguments drawn from the nature of government, and from the general spirit of an instrument, and urged for the pur-

286

pose of narrowing the construction which the words of that instrument seem to require, it is proper to place in the opposite scale those prin¬ ciples, drawn from the same sources, which go to sustain the words in their full operation and natural import. One of these, which has been pressed with great force by the counsel for the plaintiffs in error, is, that the judicial power of every well-constituted government must be co¬ extensive with the legislative, and must be capable of deciding every judicial question which grows out of the constitution and laws.

If any proposition may be considered as a political axiom, this, we think, may be so con¬ sidered. In reasoning upon it as an abstract question, there would, probably, exist no con¬ trariety of opinion respecting it. Every argu¬ ment, proving the necessity of the department, proves also the propriety of giving this extent to it. We do not mean to say, that the juris¬ diction of the courts of the Union should be construed to be co-extensive with the legisla¬ tive, merely because it is fit that it should be so; but we mean to say, that this fitness fur¬ nishes an argument *in construing the [*385 constitution which ought never to be over¬ looked, and which is most especially entitled to consideration, wdien we are inquiring, whether the words of the instrument which purport to establish this principle, shall be contracted for the purpo.se of destroying it.

The mischievous consequences of the con¬ struction contended for on the part of Virginia, are also entitled to great consideration. It would prostrate, it has been said, the govern¬ ment and its laws at the feet of every state in the Union. And would not this be its effect ? What power of the government could be execu¬ ted by its own means, in any state disposed to resist its execution by a course of legislation? The laws must be executed by individuals act ing within the several states. If these individ¬ uals may be exposed to penalties, and if the courts of the Union cannot correct the judg¬ ments by which these penalties may be enforced, the course of the government may be, at any time, arrested by the will of one of its mem¬ bers. Each member will possess a veto on the will of the whole.

The answer which has been given to this argument, does not deny its truth, but insists that confidence is reposed, and may be safely reposed, in the state institutions; and that, if they shall ever become so insane or so wicked as to seek the destruction of the government, they may accomplish their object by refusing to perform the functions assigned to them.

We readily concur with the coun.sel for the defendant, *in the declaration that the [*386 cases which have been put of direct legislative resistance for the purpose of opposing the acknowledged powers of the government, are extreme cases, and in the hope that they will never occur; but we cannot help believing, that a general conviction of the total incapacity of the government to protect itself and its laws in such cases, would contribute in no inconsider¬ able degree to their occurrence.

Let it he admitted, that the cases which have been put are extreme and improbable, yet there are gradations of opposition to the laws, far short of those cases, which might have a bane¬ ful influence on the affairs of the nation.

Wheat. 6.

1821

Cohens v. Vihginia.

386

Different states may entertain different opinions on the true construction of the constitutional powers of Congress. We know, that at one time, the assumption of the debts contracted by the several states, during the war of our revolu¬ tion. was deemed unconstitutional by some of them. We know, too, that at other times, certain taxes, imposed by Congress, have been pronounced unconstitutional. Other laws have been questioned partially, while they were supported by the great majority of the American people. We have no assurance that we shall be less divided than we have been. States may legislate in conformity to their opinions, and may enforce those opinions by penalties. It would be hazarding too much to assert, that the judicatures of the states will be exempt from the prejudices bj^ which the legis¬ latures and people are influenced, and will con¬ stitute perfectly impartial tribunals. In many states the judges are dependent for office and 387] for salary on the will of the legis¬ lature. The constitution of the United States furnishes no security against the universal adoption of this principle. When we observe the importance which that constitution attaches to the independence of judges, we are the less inclined to suppose that it can have intended to leave these constitutional questions to tribunals where this independence may not exist, in all cases where a state shall prosecute an individual who claims the protection of an act of Con¬ gress. The.se prosecutions may take place even without a legislative act. A person making a seizure under an act of Congress, may be indicted as a trespasser, if force has been employed, and of this a jury may judge. How extensive may be the mischief if the first decisions in such cases should be final!

These collisions may take place in times of no extraoi'dinary commotion. But a constitu¬ tion is framed for ages to come, and is designed to approach immortality as nearly as human institutions can approach it. Its course cannot always be tranquil. It is ex¬ posed to storms and tetnpests, and its framers must be unwise statesmen indeed, if they have not provided it, as far as its nature will permit, with the means of .self-preservation from the perils "it may be destined to encounter. No government ought to be so defective in its organization as not to contain within itself the means of securing the execution of its own laws against other dangers than those which occur every day. Courts of justice are the means most usually employed ; and it is reason¬ able to expect that a government should repose 388] on its own courts, rather than on others. There is certainly nothing in the cir¬ cumstances under which our constitution was formed; nothing in the history of the times, which would justify the opinion that the con¬ fidence reposed in the states was so implicit as to leave in them and their tribunals the power of resisting or defeating, in the form of law, the legitimate measures of the Union. The requisitions of Congress, under the confedera¬ tion, were as constitutionally obligatory as the laws enacted by the present Congress. That they were habitually disregarded, is a fact of universal notoriety. With a knowledge of this fact, and under its full pressure, a convention was assembled to change the system. Is it so

Wheat. 6.

improbable that they should confer on the judicial department the power of construing the constitution and laws of the Union in every case, in the last resort, and of preserving them from all violation from every quarter, so far as judicial decisions can preserve them, that this improbability should essentially affect the con¬ struction of the new system? We are told, and we are tndy told, that the great change which is to give efficacy to the present system, is its ability to act on individuals directly, in¬ stead of acting through the instrumentality of state governments. But, ought not this ability, in reason and sound policy, to be applied directly to the protection of individuals employed in the execution of the laws, as well as to their coercion. Your laws reach the indi¬ vidual without the aid of any other power ; why may they not protect him from punishment for performing his duty in executing them?

*The coiinsel for Virginia endeavor [*389 to obviate the force of these arguments by say¬ ing, that the dangers they suggest, if not imaginary, are inevitable ; that the constitution can make no provision against them ; and that, therefore, in construing that instrument, they ought to be excluded from our consideration. This state of things, they say, cannot arise until there shall be a disposition so hostile to the present political system as to pupduce a determination to destroy it; and, when that determination shall be produced, its effects will not be restrained by parchment stipulations. The fate of the constitution will not then depend on judicial decisions. But, should no appeal be made to force, the states can put an end to the government by refusing to act. They have only not to elect senators, and it ex¬ pires without a struggle.

It is very true that, whenever hostility to the existing system shall become universal, it will be also irresistible. The people made the con¬ stitution, and the people can unmake it. It is the creature of their own will, and lives only by their will. But this supreme and irre¬ sistible power to make or to unmake, resides only in the whole body of the people; notin any- sub-division of them. The attempt of any of the parts to exercise it is usurpation, and ought to be repelled by those to whom the peo¬ ple have delegated their power of repelling it.

The acknowledged inability of the govern¬ ment, then, to sustain itself against the public will, and, by force or otherwise, to control the whole nation, is no sound argument in support of its constitutional *inability to pre- [*390 .serve itself against a section of the nation act¬ ing in opposition to the general will.

It is true, that if all the states, or a majority of them, refuse to elect senators, the legislative powers of the Union will be .suspended. But if any one state shall refuse to elect them, the Senate will not, on that account, be the less ca-, pable of performing all its functions. The ar¬ gument founded on this fact would seem rather to prove the subordination of the parts to the whole, than the complete independence of any one of them. The framers of the constitution were, indeed, unable to make any provisions which should protect that instrument against a general combination of the states, or of the peo¬ ple, for its destruction ; and, conscious of this inability, they have not made the attempt. But

2S7

390

Supreme Court of the United States.

1831

they were able to provide against the operation of measures adopted in any one state, whose tendency might he to arrest the execution of the laws, and this it was the part of true wisdom to attempt. We think tliey have attempted it.

It has been also urged, as an additional ob¬ jection to the jurisdiction of the court, that cases between a state and one of its own citizens, do not come within the general scope of the constitution ; and were obviously never intended to be made cognizable in the federal courts. The state tribunals might be suspected of par¬ tiality in cases between itself or its citizens and aliens, or the citizens of another state, but not in proceedings by a state against its own citi¬ zens. That jealousy which might exist in the first case, could not exist in the last, and there¬ fore the judicial power is not extended to the last.

391] This is very true, so far as jurisdic¬ tion depends on the character of the parties; and the argument would have great force if urged to prove that this court could not estab¬ lish the demand of a citizen upon his state, but is not entitled to the same force when urged to prove that this court cannot inquire whether the constitution or laws of the United States protect a citizen from a prosecution instituted against him by a state. If jurisdiction de- pended,entirely on the character of the parties, and was not given where the parties have not an original right to come into court, that part of the 3d section of the 3d article which extends the judicial power to all cases arising under the constitution and laws of the United States, would be mere surplusage. It is to give jurisdiction where the character of the parties would not give it, that this very important part of the clause was inserted. It may be true, that the partiality of the state tribunals, in ordinary controversies between a state and its citizens, was not apprehended, and therefore the judicial power of the Union was not extended to such cases; but this was nofthe sole nor the greatest object for which this department was created. A more important, a much more interesting ob¬ ject, was the preservation of t.he constitution and laws of the United States, so far as they can be preserved by judicial authority; and therefore the jurisdiction of the courts of the Union was expressly extended to all cases arising imder that constitution and those laws. If the con¬ stitution or laws may be violated by proceedings 392] instituted by a state against its own citi¬ zens, and if that violation may be such as es¬ sentially to affect the constitution and the laws, such as to arrest the progress of government in its constitutional course, why should these cases be excepted from that provision which expressly extends the judicial power of the Union to all cases arising under the constitution and laws ?

After bestowing on this subject the most at¬ tentive consideration, the court can perceive no

for introducing an exception which the consti¬ tution has not made; and we think that the ju¬ dicial power, as originally given, extends to all cases arising under the constitution or a law of the United States, whoever may be the parties.

It has been also contended, that this jurisdic¬ tion, if given, is original, and cannot be exer¬ cised in the appellate form.

The words of the constitution are, “in all 288

cases affecting ambassadors, other public min¬ isters, and consuls, and those in which a state shall be a party, the Supreme Court shall have original jurisdiction. In all the other cases be¬ fore mentioned, the Supreme Court shall have appellate jurisdiction.”

This distinction between original and ap¬ pellate jurisdiction, excludes, we are told, in all cases, the exercise of the one where the other is given.

The constitution gives the Supreme Court original jurisdiction in certain enumerated cases, and gives it appellate jurisdiction in all others.

Among those in which jurisdiction mu.st be exercised in the appellate *form, are [*393 cases arising under the constitution and laws of the United States. These provisions of the constitution are equally obligatory, and are to be equally respected. If a state be a party, the jurisdiction of this court is original; if the case arise under a constitution or a law, the juris¬ diction is appellate. But a case to which a state is a party may arise under the constitution or a law of the United States. What rule is applicable to such a case? What, then, becomes the duty of the court ? Certainly, we think, so to construe the constitution as to give effect to both provisions, as far as it is possible to recon¬ cile them, and not to permit their seeming re¬ pugnancy to destroy each other. We must en¬ deavor so to construe them as to preserve the true intent and meaning of the instrument.

In one description of cases, the jurisdiction of the court is founded entirely on the character of the parties ; and the nature of the controversy is not contemplated by the constitution. The character of the parties is everything, the nature of the case nothing. In the other description of cases, the jurisdiction is founded entirely on the character of the case, and the parties are not contemplated by the constitution. In these, the nature of the case is everything, the charac¬ ter of the parties nothing. When, then, the constitution declares the jurisdiction, in cases where a state shall be a party, to be original, and in all cases arising under the constitution or a law, to be appellate, the conclusion seems irresistible, that its framers designed to include in the first class *those cases in which [*394 jurisdiction is given, because a state is a party ; and to include in the second, those in which jurisdiction is given, because the case arises un¬ der the constitution or a law.

This reasonable construction is rendered nec¬ essary by other considerations.

That the constitution or a law of the United States, is involved in a case, and makes a part of it, may appear in the progress of a cause in which the courts of the Union, but for that cir¬ cumstance, would have no jurisdiction, and which of consequence could not originate in the Supreme Court. In such a case, the jurisdic¬ tion can be exercised only in its appellate form. To deny its exercise in this form is to deny its existence, and would be to construe a clause, dividing the power of the Supreme Court, in such a manner as in a considerable degree to defeat the power itself. All must perceive, that this construction can be justified only where it is absolutely necessary. We do not think the article under consideration presents that ne- ces,sity.

It is observable, that in this distributive clause.

Wheat. 6.

1821

Cohens v. Virginia.

894

no negative words aye introduced. This ob¬ servation is not made for the purpose of con¬ tending that the legislature may “apportion the judicial power between the supreme and inferior courts according to its will.” That would be, as tvas said by this court in the case of Marbury v. Madison, to render the distribu¬ tive clause “mere surplusage,” to make it “form without substance.” This^cannot, therefore, be the true construction of the article.

305] But although the absence of negative •words will not authorize the legislature to dis¬ regard the distribution of the power previously granted, their absence will justify a sound con¬ struction of the whole article, so as to give every part its intended effect. It is admitted, that ^ ‘ affirmative words are often, in their operation, negative of other objects than those affirmed;” and that where “ a negative or exclusive sense must be given to them, or they have no opera¬ tion at all,” they must receive that negative or exclusive sense. But where they have full operation without it; where it would destroy .some of the most important objects for which the power was created; then, we think, af¬ firmative words ought not to be construed nega¬ tively.

The constitution declares, that in cases where :a state is a party, the Supreme Court shall have original jurisdiction; but does not say that its appellate jurisdiction shall not be exercised in ■cases where, from their nature, appellate juris¬ diction is given, whether a state be or be not a party. It may be conceded, that where the ■case is of such a nature as to admit of its originating in the Supreme Court, it ought to originate there ; but where, from its nature, it cannot originate in that court, these words ought not to be so construed as to require it. There are many cases in which it would be found extremely difficult, and subversive of the spirit of the constitution, to maintain the construction, that appellate jurisdiction cannot be exercised where one of the parties might sue or be sued in this court.

The constitution defines the jurisdiction of 390] the Supreme Court, but does not define that of the inferior courts. Can it be affirmed, that a state might not sue the citizen of another state in a circuit court? Should the Circuit Court decide for or against its jurisdiction, should it dismi.ss the suit, or give judgment against the state, might not its decision be re¬ vised in the Supreme Court? . The argument is, that it could not; and the very clause which is urged to prove that the Circuit Court could give no judgment in the case, is also urged to prove that its judgment is irreversible. A supervising court, who.se peculiar province it is to correct the errors of an inferior court, has no power to correct a judgment given without Jurisdiction, because, in the same case, that supervising court has original jurisdiction. Had negative words been emploiT.d, it would be dif¬ ficult to give them this construction if they would admit of any other. But, without nega¬ tive words, this irrational construction can never be maintained.

So, too, in the same clau.se, the jurisdiction of the court is declared to be original, “ in cases affecting ambassadors, other public ministers, and coasuls.” There is, perhaps, no part of the article under consideration so much required Wheat. 6. U. S., Book 5.

by national policy as this ; unless It be that part which extends the judicial power “ to all cases arising under the con.stitution, law.s, and treaties of the United States.” It has been generally held, that the state courts have a concurrent jurisdiction with the federal courts, in cases to which the judicial power is extended, unle.ss the jurisdiction of the federal courts be ren¬ dered exclusive *by the words of the [*397 third article. If the words, “ to all cases,” give exclusive jurisdiction in cases affecting foreign ministers, they may also give exclusive juris¬ diction, if such be the will of Congres.s, in cases arising under the constitution, laws, and treaties of the United States. Now, suppose an indi¬ vidual were to sue a foreign mini.ster in a state court, and that court were to maintain its juris¬ diction, and render judgment against the minis¬ ter,^ could it be contended, that this court would be incapable of revising such judgment, because the constitution had given it original jurisdic¬ tion in the ca.se? If this could be maintained, then a clause inserted for the purpose of exclud¬ ing the jurisdiction of all other courts than this, in a particular case, would have the effect of excluding the jurisdiction of this court in that very case, if the suit were to be brought in an¬ other court, and that court were to assert juris¬ diction. This tribunal, according to the argu¬ ment which has been urged, could neither revise the judgment of such other court, nor suspend its proceedings; for a writ of prohibition, or any other similar writ, is in the nature of ap¬ pellate process.

Foreign consuls frequently assert, in our prize courts, the claims of their fellow subjects. These suits are maintained by them as consuls. The appellate power of this court has been fre¬ quently exercised in such cases, and has never been questioned. It would be extremely mis¬ chievous to witlihold its . exercise. Yet the consul is a party on the record. The truth is, that where the words confer only appel¬ late jurisdiction, original jurisdiction is most *clearly not given ; but where the words [*398 admit of appellate jurisdiction, the power to take cognizance of the suit originally, does not necessarily negative the power to decide upon it on an appeal, if it may originate in a different court.

It is, we think, apparent, that to give this dis¬ tributive clau.se the interpretation contended for, to give to its affirmative words a negative operation, in every possible case, would, in some instances, defeat the obvious intention of the article. Such an interpretation would not consist with those rules which, from time im¬ memorial, have guided courts, in their con¬ struction of in.struments brought under their consideration. It must, therefore, be discarded. Every part of the article must be taken into view, and that construction adopted which will consist with its words, and promote its general intention. The court may imply a negative from affirmative words, where the implication promotes, not where it defeats the intention.

If we apply thi.s, principle, the correctness of which we believe will not be controverted, to the distributive clause under consideration, the result, we think, would be this: the original jurisdiction of the Supreme Court, in cases where a state is a party, refers to those cases in which, according to the grant of power made 19 289

398

Supreme Court op the United States.

1821

in the preceding clause, jurisdiction might he exercised in consequence of the character of the party, and an original suit might be insti¬ tuted in any of the federal courts ; not to those cases in which an original suit might not he 399] instituted in a federal court. Of the last description, is every case between a state and its citizens, and, perhaps, every case in which a state is enforcing its penal laws. In such cases, therefore, the Supreme Court can¬ not take original jurisdiction. In every other case, that is, in every case to which the judicial power extends, and in which orgiual jurisdic¬ tion is not expressly given, that judicial power shall he exercised in the appellate, and only in the appellate form. The original jurisdiction of this court cannot be enlarged, hut its appel¬ late jurisdiction may he exercised in every case cognizable under the third article of the consti¬ tution, in the federal courts, in which original jurisdiction cannot be exercised; and the ex¬ tent of this judicial power is to be measured, not by giving the affirmative words of the dis¬ tributive clause a negative operation in every possible case, but by giving their true meaning to the words which define its extent.

The counsel for the defendant in error urge, in opposition to this rule of construction, some dicta of the court, in the case of Marbury v. Madison.

It is a maxim not to be disregarded, that gen¬ eral expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision. The reason of this maxim is obvious. The question actuall}' before the court is investigated with care and considered in its full extent. Other principles which may serve to illustrate it, are 400] considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated.

In the case of Marbury v. Madison, the sin¬ gle question before the court, so far as that case can be applied to this, was, whether the legislature could give this court original juris¬ diction in a case in which the constitution had clearly not given it, and in which no doubt re¬ specting the construction of the article could possibly be raised. The court decided, and we think very properly, that the legislature could not give original jurisdiction in such a case. But, in the reasoning of the court in support of this decision-, some expressions are used which go far beyond it. The counsel for Marbury had insisted on the unlimited discretion of the legislature in the apportionment of the judicial power ; and it is against this argument that the reasoning of the court is directed. They say that, if such had been the intention of the arti¬ cle, “ it would certainly have been aseless to proceed farther than to define the judicial power, and the tribunals in which it should be vested.” The court says, that such a construc¬ tion would render the clau.se, dividing the ju¬ risdiction of the court into original and appel¬ late, totally useless; that “affirmative words are often, in their operation, negative of other objects than those which are affirmed ; and, in this case (in the case of Marbury v. Madison), a negative or exclusive sense must be given to

290

them, or they have no operation at all.” “ It cannot be presumed,” adds the court, “that any clause in the constitution is intended to be without *effect ; and, therefore, such a [*40 1 construction is inadmissible, unless the word.s require it. ”

The whole reasoning of the court proceeds upon the idea that the affirmative words of the clause giving one sort of jurisdiction, must im¬ ply a negative of any other sort of jurisdiction, because otherwise the words would be totally inoperative, and this reasoning is advanced in a case to which it was strictly applicable. If in that case original jurisdiction could have been exercised, the clause under consideration would have been entirely useless. Having such cases only in its view, the court lays down a principle which is generally correct, in terms much broader than the decision, and not only much broader than the reasoning with which that decision is supported, but in some instances contradictory to its principle. The reasoning sustains the negative operation of the words in that case, because otherwise the clause would have no meaning whatever, and because such operation was necessary to give effect to the intention of the article. The ef¬ fort now made is, to apply the conclusion to which the court was conducted by that reason¬ ing in the particular case, to one in which the words have their full operation when under¬ stood affirmatively, and in which the negative, or exclusive sense, is to be so used as to defeat some of the gi-eat objects of the article.

To this construction the court cannot give its assent. The general expreissions in the case of Marbury v. Madison must be understood with the limitations which are given to them in this opinion; limitations *which in no [*402 degree affect the decision in that case, or the tenor of its reasoning.

The counsel who closed the argument put several cases for the purpose of illustration, which he supposed to arise under the constitu¬ tion, and yet to be, apparently, without the jurisdiction of the court.

Were a state to lay a duty on exports, to col¬ lect the money and place it in her treasury, could the citizen who paid it, he asks, main¬ tain a suit in this court against such state, to recover back the money ?

Perhaps not. Without, however, deciding such supposed case, we may say, that it is en¬ tirely unlike that under consideration.

The citizen who has paid his money to his state, under a law that is void, is in the same situation with every other person who has paid rnoney by mistake. The law raises an assump¬ sit to return the money, and it is upon that as¬ sumpsit that the action is to be maintained. To refuse to comply with this assumpsit may be no more a violation of the constitution than to refuse to comply with any other; and as the federal courts never had jurisdiction over con¬ tracts between a state and its citizens, they may have none over this. But let us so vary the supposed case as to give it a real resem¬ blance to that under consideration. Suppose a citizen refuse to pay this export duty, and a suit be instituted for the purpose of compelling him to pay it. He pleads the constitution of the United States in bar of the action, notwith¬ standing which the court gives judgment

Wheat. 6.

1821

Cohens v. Virginia.

402

against him. This, would be a case arising 403] under the constitution, and would be the veiy case now before the court.

We are also asked, if a state should confiscate property secured by a treaty, whether the in¬ dividual could maintain an action for that property.

If the property confiscated be debts, our own cxiierience informs us that the remedy of the creditor against his debtor remains. If it be land which is secured by a treaty, and after¬ wards confiscated by a state, the argument does not assume that this title, thus secured, could be extinguished by an act of confiscation. The injured party, therefore, has his remedy against the occupant of the land for that which the treaty secures to him, not against the state for money which is not secured to him.

The case of a state which pays off its own debts with paper money, no more resembles this than do those to which we have already adverted. The courts have no jurisdiction over the contract. They cannot enforce it, nor judge of its violation. Let it be that the act dis¬ charging the debt is a mere nullity, and that it is still due. Yet the federal courts have no cognizance of the case. But suppose a state to institute proceedings against an individual, which depended on the validity of an act emitting bills of credit; suppose a state to prosecute one of its citizens for refusing paper money, wdio should plead the constitution in bar of such prosecution. If his plea should be overrulecl and judgment rendered against him, his case would resemble this; and, unless the jurisdiction of this court might be exercised 404] over it, the constitution would be vio¬ lated, and the injured party be unable to bring his case before that tribunal to which the people of the United States have assigned all such cases.

It is most true that this court will not take jurisdiction if it should not; but it is equally true, that it must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure because it approaches the con¬ fines of the constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attend¬ ed, we must decide it if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution. Ques¬ tions may occur which we would gladly avoid, but we cannot avoid them. All we can do, is to exerci.9e our best judgment, and conscien¬ tiously to perform our duty. In doing this, on the present occasion, we find this tribunal invested with appellate jurisdiction in all cases arising under the constitution and laws of the United States. We find no exception to this grant, and we cannot insert one.

To escape the operation of these comprehen¬ sive words, the counsel for the defendant has mentioned instances in which the constitution might be violated without giving jurisdiction to this court. These words, therefore, how¬ ever universal in their expression, must, he contends, be limited and controlled in their construction by circumstances. One of these instances is, the grant by a state of a patent of nobility. The court, he says, cannot annul this grant.

Wheat. 6.

*This may be very true; but by no [*405 means justifies the inference drawn from it. The article does not extend the judicial power to every violation of the constitution which may possibly take place, but to “a case in law or equity,” in which a right, under such law, is asserted in a court of justice. If the question cannot be brought into a court, then there is no case in law or equity, and no jurisdiction is given by the words of the article. But if, in any controversy depending in a court, the cause should depend on the validity of such a law, that would be a case arising under the constitu¬ tion, to which the judicial power of the United States would extend. The same observation applies to the other instances with which the counsel who opened the cause has illustrated this argument. Although they show that there may be violations of the constitution, of which the courts can take no cognizance, they do not show that an interpretation more restrictive than the words themselves import ought to be given to this article. They do not show that there can be “ a case in law or equity,” arising under the constitution, to which the judicial power does not extend.

We think, then, that, as the constitution originally stood, the appellate jurisdiction of this court, in all cases arising under the consti¬ tution, laws, or treaties of the United States, was not arrested by the circumstance that a state was a party.

This leads to a consideration of the 11th amendment.

It is in these words : “ The judicial power of the United States shall not be construed to ex¬ tend to any *suit in law or equity com- [*40G menced or prosecuted against one of the United States, by citizens of another state, or by citi¬ zens or subjects of any foreign state.”

It is a part of our history, that, at the adop¬ tion of the constitution, all the states were greatly indebted; and the apprehension that these debts might be prosecuted in the federal courts, formed a very serious objection to that instrument. Suits were instituted; and the court maintained its jurisdiction. The alarm was general; and, to quiet the apprehensions that were so extensively entertained, this amend¬ ment was proposed in Congress, and adopted by the state legislatures. That its motive was not to maintain the sovereignty of a state from the degradation supposed to attend a compul¬ sory appearance before the tribunal of the na¬ tion, may be inferred from the terms of the amendment. It does not comprehend contro¬ versies between two or more states, or between a state and a foreign state. The jurisdiction of the court still extends to these cases; and in these a state may still be sued. We must as¬ cribe the amendment, then, to some other cause than the dignity of a state. There is no diffi¬ culty in finding this cause. Those who were inhibited from commencing a suit against a state, or from prosecuting one which might be commenced before the adoption of the amend¬ ment, were persons who might probably be its creditors. There was not much reason to fear that foreign or sister states would be creditors to any considerable amount, and there was rea¬ son to retain the jurisdiction of the court in those *cases, because it might be essen- [*40 7 tial to the preservation of peace. The amend-

291

407

Supreme Court of the United States.

1821

meat, therefore, extended to .suits commenced or prosecuted by individuals, but not to those brought by states.

The first impression made on tlie mind by this amendment is, that it was intended for those cases, and for those only, in which some demand against a state is made by an individu¬ al in the courts of the Union. If we consider the causes to which it is to be traced, we are conducted to the same conclusion. A general interest might well be felt in leaving to a .state the full power of considtmg its convenience in the adjustment of its debts, or of other claims upon it; but no interest could be felt in so changing the relations between the whole and its parts, as to strip the government of the means of protecting, by the instrumentality of its .courts, the constitution and laws from active violation.

The words of the amendment appeal- to the court to jmstify and require this construction. The judicial power is not “to extend to any suit in law or equity commenced or prosecuted against one of the United States by citizens of another state, &c.”

What is a suit? We understand it to be the prosecution, or pursuit, of some claim, demand, or request. In law langauge, it is the prosecu¬ tion of some demand in a court of justice. The remedy for every species of wrong is, says Judge Blackstone, “ the being put in po.ssession of that right whereof the party injured is de¬ prived.” ‘ ‘ The instruments whereby this rem¬ edy is obtained, are a diversity of suits and ac- 408] tions, which are defined b}’- the Mirror to be ‘ the lawful demand of one’s right. ’ Or, as Bracton and Fleta express it, in the words of Justinian, ‘jus prosequendi in judicio quod alicui debetur.’ ” Blackstone then proceeds to describe every species of remedy by suit; and they are all cases where the party suing claims to obtain something to which he has a right.

To commence a suit, is to demand something by the institution of process in a court of jus¬ tice; and to prosecute the suit, is, according to the common acceptation of language, to con¬ tinue that demand. By a suit commenced by an individual against a state, we should under¬ stand process sued out by that individual against the state, for the purpose of establishing some claim against it by the judgment of a court ; and the prosecution of that suit is its continuance. Whatever may be the stages of its progress, the actor is still the same. Suits had been commenced in the Supreme Court against some of the states before this amend¬ ment was introduced into Congress, and others might be commenced before it .should be adopt¬ ed by the state legislatures, and might be de¬ pending at the time of its adoption. The object of the amendment was not onlyto prevent the commencement of future suits, but to arrest the prosecution of those which might be com¬ menced when this article should form a part of the constitution. It therefore embraces both objects; and its meaning is, that the judicial power shall not be construed to extend to any suit which may be commenced, or which, if 409] already commenced, may be prose- cuted against a state by the citizen of another state. If a suit, brought in one court, and car¬ ried by legal process to a supervising court, be a continuation of the same suit, then this suit 293

is not commenced nor prosecuted against a state. It is clearly in its commencement the suit of a state against an individual, which suit is transferred to this court, not for the purpose of asserting any claim against the state, but for the purpose of asserting a constitutional defense against a claim made by a state.

A writ of error is defined to be a commission by which the judges of one court are author¬ ized to examine a record upon which a judg¬ ment was given in another court, and, on such examination, to affirm or reverse the same ac¬ cording to law. If, says my Lord Coke, by the writ of error, the plaintiff may recover, or be restored to anything, it may be released by the name of an action. In Bacon’s Abridg¬ ment, tit. Error, L., it is laid down, that “ where by a writ of error, the plaintiff .shall recover, or be restored to any personal thing, as debt, damage, or the like, a release of all actions personal is a good plea ; and when land is to be recovered or restored in a writ of error, a release of actions real is a good bar; but where by a writ of error the plaintiff shall not be restored to any personal or real thing, a re¬ lease of all actions, real or personal, is no bar.” And for this we have the authority of Lord Coke, both in his Commentary on Littleton and in his Repoi’ts. A writ of error, then, is in the nature of a suit or action when it is to restore the party who obtains it to the posses¬ sion of anything which is withheld from him, *not when its operation is entirely de- [*410 fensive.

This rule will apply to writs of error from the courts of the United States, as well as to those writs in England.

Under the judiciary act, the effect of a writ of error is simply to bring the record into court, and submit the judgment of the inferior tribu¬ nal to re-examination. It does not in any man¬ ner act upon the parties; it acts only on tlwe record. It removes the record into the super¬ vising tribunal. Where, then, a state obtains a judgment against an indi^ddual, and the court, rendering such judgment, overrules a defense set up under the constitution or laws of the United States, the transfer of this record into the Supreme Court, for the sole purpose of in¬ quiring whether the judgment violates the con¬ stitution or laws of the United States, can with no propriety, we think, be denominated a suit commenced or prosecuted against the state whose judgment is so far re-examined. Nothing is demanded from the state. No claim against it of any description is asserted or prosecuted. Tlie party is not to be restored to the possession of anything. Essentially, it is an appeal on a single point; and the defendant who appeals from a judgment rendered against him, is never said to commence or prosecute a suit against the plaintiff who has obtained the judgment. The writ of error is given rather than an appeal, because it is the more usual mode of removing suits at common taw ; and because, perhaps, it is more technically proper where a single point of law, and not the whole ca,se, is to *be [*4 1 1 re-examined. But an appeal might be given, and might be so regulated as to effect every pur¬ pose of a writ of error. The mode of removal is form, and not substance. Whether it be by writ of error or appeal, no claim is asserted, no demand is made by the original defendant ; he

Wheat.’,6.

1821

Cohens v. Virginia.

411

only asserts the constitutional right to have his defense examined by that tribunal whose prov¬ ince it is to construe the constitution and laws of the Union.

The only part of the proceeding which is in any manner personal, is the citation. And what is the citation? It is simply notice to the opposite party that the record is transferred into another court, where he may appear, or decline to appear, as his judgment or inclination may de¬ termine. As the party who has obtained a judg¬ ment is out of court, and may, therefore, not know that his cause is removed, common justice requires that notice of the fact should be given him. But this notice is not a suit, nor has it the effect of process. If the party does not choose to appear, he cannot be brought into court, nor is his failure to appear considered as a default. Judgment cannot be given against him for his non-appearance, but the judgment is to be re-examined, and reversed or affirmed, in like manner as if the party had appeared and argued his cause.

The point of view in which this writ of error, with its citation, has been considered uni¬ formly in the courts of the Union, has been well illustrated by a reference to the course of this court in suits instituted by the United States. The universally received opinion is, 412] that no suit can be commenced or prosecuted against the United States; that the judiciary act does not authorize such suits. Yet writs of error, accompanied with citations, have uniformly issued for the removal of judgments in favor of the United States into a superior court, where they have, like those in favor of an individual, been re-examined, and affirmed or reversed. It has never been suggested, that such writ of error was a suit against the United States, and, therefore, not within the jurisdic¬ tion of the appellate court.

It is, then, the opinion of the court, that the defendant who removes a judgment rendered against him by a state court into this court, for the purpose of re-examining the question, wheth¬ er that judgment be in violation of the consti¬ tution or laws of the United States, does not commence or prosecute a suit against the state, whatever may be its opinion where the effect of the writ may be to restore the party to the pos¬ session of a thing which he demands.

But should we in this be mistaken, the error does not affect the case now before the court. If this writ of error be a suit in the sense of the 11th amendment, it is not a suit commenced or prosecuted “by a citizen of another state, or by a citizen or subject of any foreign state.” It is not, then, within the amendment, but is governed entirely by the constitution as orig¬ inally framed, and w'e have already seen, that in its origin, the judicial power was extended to all cases arising under the constitution or laws of the United States, without respect to parties. 413*] *2d. The second objection to the

jurisdiction of the court is, that its appellate power cannot be exercised, in any case, over the judgment of a state court.

This objection is sustained chiefly by argu¬ ments drawn from the supposed total separation of the judiciary of a state from that of the Union, and their entire independence of each other. The argument considers the federal judiciary as completely foreign to that of a Wheat. 6.

state; and as being no more connected with it. in any respect whatever, than the court of a foreign state. If this hypothesis be just, the argument founded on it' is equally so ; but if the hypothesis be not supported by the consti¬ tution, the argument fails with it.

This hypothesis is not founded on any words in the constitution, which might seem to coun¬ tenance it, but on the unreasonableness of giv¬ ing a contrary construction to words which seem to require it; and on the incompatibility of the application of the appellate jurisdiction • to the judgments of state courts, with that con¬ stitutional relation which subsists between the government of the Union and the governments of those states which compose it.

Let this unreasonableness, this total incom¬ patibility, be examined.

That the United States form, for many, and for most important purposes, a single nation, has not yet been denied. In war, we are one people. In making peace, we are one people.

In all commercial regulations, we are one and the same people. In *many other re- [414 spects, the American people are one ; and the • government which is alone capable of control¬ ling and managing their interests in all these respects, is the government of the Union. It is their government, and in that character they have no other. America has chosen to be, in many respects, and to many purposes, a nation; and for all these purposes, her government is complete ; to all these objects, it is competent. The people have declared, that in the exercise of all powers given for these objects it is su¬ preme. It can, then, in effecting these objects, legitimately control all individuals or govern¬ ments within the American territory. The constitution and laws of a state, so far as they are repugnant to the constitution and laws of the United States, are-absolutely void. These states are constituent parts of the United States. They are members of one great empire — for some XDurposes sovereign, for some purposes subordinate.

In a government so constituted, is it unrea¬ sonable that the judicial power should be com¬ petent to give efficacy to the constitutional laws of the legislature? That department can de¬ cide on the validity of the constitution or law of a state, if it be repugnant to the constitution or to a law of the United States. Is it unrea¬ sonable that it should also be empowered to de¬ cide on the judgment of a st’ate tribunal enforc¬ ing such unconstitutional law? Is it so very unreasonable as to furnish a justiflcation for controlling the words of the constitution?

We think it is not. We think that in a gov¬ ernment *acknowledgedly supreme, [*415 with respect to objects of vital interest to the nation, there is nothing inconsistent with sound reason, nothing incompatible with the nature of government, in making all its departments supreme, so far as respects those objects, and so far as is necessary to their attainment. The exercise of the appellate power over those judg¬ ments of the state tribunals which may contra¬ vene the constitution or laws of the United States, is, we believe, essential to the attain¬ ment of those objects.

The propriety of entrusting the construction of the constitution, and laws made in pursu¬ ance thereof, to the judiciary of the Union, has

293

415

Supreme Court of the United States.

1821

not, we believe, as yet, been drawn into ques¬ tion. It seems to be a corollary from this poli¬ tical axiom, that the federal courts should either possess exclusive jurisdiction in such cases, or a power to revise the judgment ren¬ dered in them, by the state tribunals. If the federal and state courts have concurrent juris¬ diction in all cases arising under the constitu¬ tion, laws, and treaties of the United States; and if a case of this description brought in a state court cannot be removed before judg¬ ment, nor revised after judgment, then the construction of the constitution, laws, and treaties of the United States, is not confided particularly to their judicial department, but is confided' equally to that department and to the state courts, however they may be consti¬ tuted. “ Thirteen independent courts,” says a very celebrated statesman (and we have now more than twenty such courts), “ of final juris¬ diction over the same causes, arising upon the same laws, is a hydra in government, from 416] which nothing but contradiction and confusion can proceed.”

Dismissing the unpleasant , suggestion, that any motives which may not be fairly avowed, or which ought not to exist, can ever influence a state or its courts, the necessity of uniformity, as well as correctness in expounding the consti¬ tution and laws of the United States, would itself suggest the propriety of vesting in some single tribunal the power of deciding, in the last resort, all cases in which they are involved.

We are not re.strained, then, by the political relations between the general and state gov¬ ernments, from construing the words of the con.stitution, defining the judicial power, in their true sense. We are not bound to con¬ strue them more restrictively than they natural¬ ly import.

They give to the Supreme Court appellate jurisdiction in all cases arising under the con¬ stitution, laws, and treaties of the United States. The words are broad enough to com¬ prehend all cases of this description, in what¬ ever court they may be decided. In expound¬ ing them, we may be permitted to take into view those considerations to which courts have always allowed great weight in the exposition of laws.

The framers of the constitution would natu¬ rally examine the state of things existing at the time; and their work sutficiently attests that they did so. All ‘acknowledge that they were convened for the purpose of strengthening the confederation by enlarging the powers of the 417] government, and by giving efficacy to those which it before possessed, but could not exercise. They inform us themselves, in the instrument they presented to the ximerican public, that one of its objects was to form a more perfect union. Under such circumstan¬ ces, we certainly should not expect to find, in that instrument, a diminution of the powers of the actual government.

Previous to the adoption of the confedera¬ tion. Congress established courts which re¬ ceived appeals in prize causes decided in the courts of the respective states. This power of the government, to establish tribunals for these appeals, was thought consistent with, and was founded on, its political relations with the states. These courts did exercise appellate 294

jurisdiction over those cases decided in the state courts, to which the judicial power of the federal government extended.

The confederation gave to Congre.s8 the power “of establishing courts for receiving and determining finally appeals in all cases of captures. ”

This power was uniformly construed to au¬ thorize these courts to receive appeals from the sentences of state courts, and to affirm or re¬ verse them. State tribunals are not mentioned; but this clause in the confederation neces.sarily comprises them. Yet the relation between the general and state governments was much weak¬ er, much more lax, under the confederation than under the pre.sent constitution; and the states being much more completely sovereign, their institutions were much more independ¬ ent.

The convention which framed the constitu¬ tion, on *turning their attention to the [*4 1 8 judicial power, found it limited to a few ob¬ jects, but exercised, with respect to some of those objects, in its appellate form, over the judgments of the state courts. They extend it, among other objects, to all cases arising un¬ der the constitution, laws, and ti-eaties of the United States; and in a subsequent clause de¬ clare, that in such cases, the Supreme Court shall exercise appellate jurisdiction. Nothing seems to be given which would justify the withdrawal of a judgment rendered in a state court, on the constitution, laws, or treaties of the United States, from this appellate jurisdic¬ tion.

Great weight has always been attached, and very rightly attached, to contemporaneous ex¬ position. No que.stion, it is believed, has arisen to which this principle applies more unequivo¬ cally than to that now under consideration.

The opinion of the Federalist has always been considered as of great authority. It is a complete commentary on our constitution ; and is appealed to by all parties in the questions to which that instrument has given birth. Its in¬ trinsic merit entitles it to this high rank ; and the part two of its authors performed in fram¬ ing the constitution, put it very much in their power to explain the views with which it was framed. These essays having been published while the constitution was before the nation for adoption or rejection, and having been written in answer to objections founded entire¬ ly on the extent of its powers, and on its dimi¬ nution of state sovereignty, are entitled to the more consideration where they *frank- [*419 ly avow that the power objected to is given, and defend it.

In discussing the extent of the judicial laoM^er, the Federalist says; “Here another question occurs: what relation wonld subsist between the national and state courts in these instances of concurrent jurisdiction ? I answei-j that an appeal would certainly lie from the lat¬ ter to the Supreme Court of the United States. The constitution in direct terms gives an ap¬ pellate jurisdiction to the Supreme Court in all the enumerated cases of fedei’al ccignizance in which it is not to have an original one, without a single expression to confine its operation to the inferior federal courts. The objects of ap¬ peal, not the tribunals from which it is to be made, are alone contemplated. From thi.s

Wheat. 6.

1821

Cohens v. Viroinia.

419

circumstance, and from the reason of the thing, it ought to be construed to extend to the state tribunals. Either this must be the case, or the local courts must be excluded from a con¬ current jurisdiction in matters of national con¬ cern, else the judicial authority of the Union may be eluded at the pleasure of every plaint¬ iff or prosecutor. Neither of these consequen¬ ces ought, without evident necessity, to be in¬ volved; the latter would be entirely inadmis.si- ble, as it would defeat some of the most im¬ portant and avowed purposes of the proposed government, and would essentially embarrass its measures. Nor do I perceive any founda¬ tion for such a supposition. Agreeably to the remark already made, the national and state systems are to be regarded as one whole. The coiu-ts of the latter will of course be natural 420] auxiliaries to the execution of the laws of the Union, and an appeal from them will as naturally lie to that tribunal which is destined to unite and assimilate the principles of natural justice, and the rules of national decision. The evident aim of the plan of the national conven¬ tion is, that all the causes of the specified classes 'shall, for weighty public reasons, re¬ ceive their original or final determination in the courts of the Union. To confine, there¬ fore, the general expressions which give ap¬ pellate jurisdiction to the Supreme Court, to appeals from the subordinate federal courts, in¬ stead of allowing their extension to the state courts, would be to abridge the latitude of the terms, in subversion of the intent, contrary to every sound rule of interpretation.”

A contemporaneous exposition of the consti¬ tution, certainly of not less authority than that which has been just cited, is the judiciary act itself. We know that in the Congress which passed that act were many eminent members or the convention which formed the constitu¬ tion. Not a single individual, .so far as is known, supposed that part of the act which gives the Supreme Court appellate jurisdiction over the judgments of the state courts in the cases therein specified, to-be unathorized by the constitution.

While on this part of the argument, it may be also material to observe that the uniform de¬ cisions of this court on the point now under consideration, have been assented to, with a single exception, by the courts of every state in the Union who.se judgments have been revised. 421] It has been the unwelcome duty of this tribunal to reverse the judgments of many state courts in cases in which the strongest state feelings were engaged. Judges, whose talent and character would grace any bench, to whom a disposition to submit to jurisdiction that is usurped, or to surrender their legitimate pow¬ ers, will certainly not be imputed, have yield¬ ed without hesitation to the authority by which tjieir judgments were reversed, while they, perhaps, disapproved the judgment of reversal.

This concurrence of statesmen, of legislators, and of judges, in the .same construction of the constitution, may justly inspire some confi¬ dence in that construction.

In oppo.sition to it, the counsel who made this point has presented in a great variety of forms, the idea already noticed, that the federal and state courts must, of necessity, and from the nature of the constitution, be in all things

Wheat. 6.

totally distinct and independent of each other. If this court can correct the errors of the courts of Virginia, he says it makes them courts of the United States, or becomes itself a part of the judiciary of Virginia.

. But, it has been already shown that neither of these consequences necessarily follows. The American people may certainly give to a nation¬ al tribunal a supervising power over those judg¬ ments of the state courts, which may conflict with the constitution, laws, or treaties of the United States, without converting them into federal courts, or converting the national into a state tribunal. The one court *stlll de- [*422 rives its authority from the state, the other still derives its authority from the nation.

If it shall be established, he says, that this court has appellate jurisdiction over the state courts in all cases enumerated in the 3d article of the constitution, a complete consolidation of the states, so far as respects judicial power, is produced.

But, certainly, the mind of the gentleman who urged this argiiment is too accurate not to perceive that he has carried it too far; that the premises by no means justify the conclusion. “A complete consolidation of the states, so far as respects the judicial power,” would author¬ ize the legislature to confer on the federal courts appellate jurisdiction from the state courts in all cases whatsoever. The distinction between such a power, and that of giving ap¬ pellate jurisdiction in a few specified cases in the decision of which the nation takes an inter¬ est, is too obvious not to be perceived by all.

This opinion has been already drawn out to too great a length to admit of entering into a particular consideration of the various forms in which the counsel who made this point has. with much ingenuity, presented his argument to the court. The argument in all its forms is essentially the same. It is founded, not on the words of the constitution, but on its spirit, a spirit extracted, not from the words of the instrument, but from his view of the nature of our Union, and of the great fundamental principles on which the fabric stands.

To this argument, in all its forms, the same answer may be given. Let the nature and ob¬ jects of *our Union be considered; let [*423 the great fundamental principles, on which the fabric .stands, be examined; and we think the result must be, that there is nothing so extrav¬ agantly absurd in giving to the court of the nation the power of revising the decisions of local tribunals on questions which affect the nation, as to require that words which im¬ port this power should be restricted by a forced construction. The question, then, must depend on the words themselves ; and on their construc¬ tion we shall be the more readily excused for not adding to the observations already made, because the subject was fully discussed and exhausted in the case of Martin v. Hunter.

3d. We come now to the third objection, which, though differently stated by the counsel, is substantially the same. One gentleman has said that the judiciary act does not give ju¬ risdiction in the case.

The cause was argued in the state court, on a case agreed by the parties, which states the prosecution under a law for selling lottery tick¬ ets, which is set forth, and further states the

295

42i

SuPKEME Court op the United States.

1821

act of Congress by which the city of Washing¬ ton was authorized to establish the lottery. It then states that the lottery was regularly es¬ tablished by virtue of the act, and concludes with referring to the court the questions, whether the act of Congress be valid? whether on its just construction, it constitutes a bar to the prosecution? and, whether the act of As¬ sembly, on whicli the prosecution is founded, be not itself invalid? These questions were decided against the operation of the act of Con¬ gress, and in favor of the operation of the act of the .state.

424] If the 25th section of the judiciary act be inspected, it will at once be perceived that it comprehends expressly the case under consideration.

But it is not upon the letter of the act that the gentleman who stated this point in this form, founds his argument. Both gentlemen concur substantially in their views of this part of the case. They deny that the act of Con¬ gress, on which the plaintiff in error relies, is a law of the United States; or, if a law of the United States, is within the second clause of the sixth article.

In the enumeration of the powers of Con¬ gress, which is made in the 8th section of the first article, we find that of exercising exclusive legislation over such district as shall become the seat of government. This power, like all others which are specified, is conferred on Con¬ gress as the legislature of the Union; for, strip them of that character, and they would not pos¬ sess it. In no other character can it be exercised. In legislating for the district, they necessarily preserve the character of the legislature of the Union; for, it is in that character alone that the constitution confers on them this power of ex¬ clusive legislation. This proposition need not be enforced.

The 2d clause of the 6th article declares, that “this constitution, and the laws of the United States, which shall be made in pur¬ suance thereof, shall be the supreme law of the land.”

The clause which gives exclusive jurisdiction is, unquestionably, a part of the constitution, and, as such, binds all the United States. Those who contend that acts of Congre.ss, made 425 ] in pursuance of this power, do not, like acts made in pursuance of other powers, bind the nation, ought to show some safe and clear rule which shall support tliis construc¬ tion, and prove that an act of Congress, clothed in all the forms which attend other legislative acta, and passed in virtue of a power conferred on, and exercised by Congress, as the legisla¬ ture of the Union, is not a law of the United States, and does not bind them.

One of the gentlemen .sought to illustrate his proposition that Congress, when legislating for the district, assumed a distinct character, and was reduced to a mere local legislature, whose laws could possess no obligation out of the ten miles square, by a reference to the complex character of this court. It is, they say, a court of common law and a court of equity. Its character, when sitting as a court of common law, is as distinct from its character when sit¬ ting as a court of equity, as if the powers be¬ longing to those departments were vested in different tribunals. Though united in the same 2J)6

tribunal, they are never confounded with eachi other. ^

Without inquiring how far the union of dif¬ ferent characters in one court may be applica¬ ble, in principle, to the union in Congress of the power of exclusive legislation in some places, and of limited legislation in others, it maybe observed, that the forms of proceedings- in a court of law are so totally unlike the forms of proceedings in a court of equity, that a mere inspection of the record gives decisive informa¬ tion of the character in wdiich the court sits, and consequently of the extent of its powers. But *if the forms of proceeding were [*426 precisely the same, and the court the same, the distinction would disappear.

Since Congress legislates, in the same forms,, and in the same character, in virtue of powers of equal obligation, conferred in the , same- instrument, when exercising its exclusive pow¬ ers of legislation, as well as when exercising- those which are limited, we must inquire whether there be anything in the nature of this exclusive legislation which necessarily confines the operation of the laws made in vir¬ tue of this power to the place with a view to- which they are made.

Connected with the power to legislate within this district, is a similar power in forts, arsenals, dock-yards, &c. Congress has a right to pun¬ ish murder in a fort, or other place within its exclusive jurisdiction ; but no general right to punish murder committed within any of the states. In the act for the punishment of crimes against the United States, murder committed within a fort, or any other place or district of country, under the sole and exclusive jurisdic¬ tion of the United States, is punished with death. Thus Congress legislates in the same act, under its exclusive and its limited powers.

The act proceeds to direct, that the body of the criminal, after execution, may be delivered to a surgeon for dissection, and punishes any person who shall rescue such body during its conveyance from the place of execution to the surgeon to whom it is to be delivered.

*Let these actual provisions of the [*427 law, or any other pro\dsions which can be made on the subject, be considered with a view to the character in which Congre.ss acts when exercising its powers of exclusive legislation.

If Congres.s is to be considered merely as a local legislature, invested, as to this object with powers limited to the fort, or other place, in which the murder may be committed, if its general powers cannot come in aid of these local powers, how can the offense be tried in any other court than that of the place in which it has been committed? How can the of¬ fender be conveyed to, or tried in. any other- place? How can he be executed elsewhere? How can his body be conveyed through a country under the jurisdiction of another sov¬ ereign, and the individual punished, who, with¬ in that jurisdiction, shall rescue the body.

Were any one state of the Union to pass a law for trying a criminal in a corrrt not created by itself, in a place not within its juri.sdiction, and direct the sentence to be executed without its territory, we should all perceive and ac¬ knowledge its incompetency to such a course of legislation. If Congress be not equally incom¬ petent, it is because that body unites the pow-

Wheat. 6.

1831

Cohens v. Viuoinia.

437

ers of local legislation with those which ai-c to operate through the Union, and may use the last in aid of the first ; or because the power of exercising exclusive legislation draws after it, tis an incident, the power of making that legis¬ lation effectual, and the incidental power may 428*] be exercised ^throughout the Union, because the principal power is given to that body as the legislature of the Union.

So, in the same act, a per, son who, having knowledge of the commission of murder, or other felony, on the high seas, or within any foi't, arsenal, dock-yard, magazine, or other place, or district of country within the sole and exclusive jurisdiction of the United States, shall conceal the same, &c. , he shall be adjudged guilty of misprision of felony, and shall be ad¬ judged to be imprisoned, &c.

It is clear, that Congress cannot punish fel¬ onies generally; and, of consequence, cannot punish misprision of felony. It is equally clear, that a state legislature — the state of Mary¬ land, for example — cannot punish those who, in another state, conceal a felony committed in Maryland. How, then, is it that Congress, legislating exclusively for a fort, punishes those who, out of that fort, conceal a felony com¬ mitted within it?

The solution, and the only .solution of the ditticulty is, that the power vested in Congress, as the legislature of the United States, to legis¬ late exclusively within any place ceded by a state, carries with it, as an incident, the right to make that power effectual. If a felon escape out of the state in which the act has been committed, the government cannot pur¬ sue him into another state, and apprehend him there, but must demand him from the executive power of that other state. If Congress were to be considered merely as the local legislature for the fort or other place in which the offense might be committed, then this principle wo\dd 420*] apply to themas to other local legisla¬ tures, and the felon who should escape out of the fort, or other place, in which the felony may have been committed, could not be ap¬ prehended by the marshal, but must be de¬ manded from the executive of the state. But we know that the principle does not apply; and the reason is, that Congress is not a local legislature, but exercises this particular power, like all its other powers, in its high character, as the legislature of the Union. The American people thought it a necessary power, and they conferred it for their own benefit. Being so conferred, it carries with it all those incidental powers which are necessary to its complete and , effectual execution.

Whether any particular law be designed to operate without the district or not, depends on the words of that law. If it be designed so to operate, then the question, whether the power so exercised be incidental to the power of exclusive legislation, and be war¬ ranted by the constitution, requires a considera¬ tion of that instrument. In such cases the constitution and the law must be compared and construed. This is the exercise of jurisdiction. It is the only exercise of it which is allowed in such a case. For the act of Congress directs, that ‘ ‘ no other error shall be assigned or re¬ garded as a ground of reversal, in any such case as aforesaid, than such as appears on the Wheat. 6.

face of the record, and immediately respects the before-mentioned questions of validity or con¬ struction of the said constitution, treaties,” &c.

The whole merits of this case, then, consist in the con.struction of the constitution and the act of Congre.ss. *The jurisdiction of [*430 the court, if acknowledged, goes no further. This we are required to do. without the exercise of jurisdiction.

The counsel for the state of Virginia have, in support? of this motion, urged many argu¬ ments of great weight against the application of the act of Congress to such a case as tliis ; but those arguments go to the construction of the constitution, or of the law, or of both ; and •seem, therefore, rather calculated to sustain their cause upon its merits, than to prove a failure of jurisdiction in the court.

After having bestowed upon this question the most deliberate consideration of which we are capable, the court is unanimously of opin¬ ion, that the objections to its jurisdiction are- not sustained, and that the motion ought to be overruled.

Motion de,nied.

The cause was this day argued on the merits.

Mr. D. B. Ogden, for the plaintiffs in eiTor, stated, that the question of conflict between the act of Congress and the state law, which arose upon the record, depended upon the 8th section of the first article of the constitution, giving to Congress the exclusive power of leg¬ islation, in all ca.ses whatsoever, over the dis¬ trict which had become the seat of the govern¬ ment of the United States, by cession from the states to whom it formerly belonged. Under this power. Congress has authorized the estab¬ lishment of a lottery at the seat of government. Can *the state of Virginia prevent the [*431 sale of tickets in that lottery within her terri¬ tory, consistently with the constitution? This question mu.st depend upon the nature of the constitutional power of Congre.ss, and of the law by which it is exercised. It was said by the counsel for the defendant in error, on the former argument, that the power is municipal, to be exercised over the district only, and, of cour.se, confined in its operation to the limits of the district. But, in order to determine whether this is the true interpretation of the clause in (juestiqn, we must more minutely examine what is the nature of the authority granted. The clause was not intended to give to Congress an unlimited power to legislate in all cases, with¬ out reference to other provisions of the consti¬ tution. Otherwise Congress might pass bills of attainder and ex pod facto laws, and exercise a despotic authority over the District of Columbia, and Its citizens would thus be deprived of their rights entirely. Nor was it intended to authorize the exercise by Congress of its generai powers as a national legislature, within the district. Nor to exempt the distinct from the operation of those general powers. But the clause was in¬ serted for the purpose of securing the independ¬ ence of the national legislature, and govern¬ ment, from .state control. The object in view was, therefore, strictly a national object. The district was created only for national pur¬ poses, and every law passed for its government

297

431

Supreme Court op the United States.

1821

is peculiarly a national law. The words, “ ex- 432] elusive legislation in all cases whatso¬ ever,” were meant to exclude .all state legisla¬ tive power ; and to vest in Congress in addition to its general powers over the whole Union, all possible powers of legislation over the district. The law in question, is the expression of the national will on a national object. It is, then, an act of the general legislative power of the Union, and its operation must be co-extensive with the limits of the Union, unless it is lim¬ ited to the District of Columbia dn express terms, or from the nature of the power itself being incapable of acting without the district. That the whole Union has an interest in the city of Washington, as the national capital, is shown by the cotemporaneous exposition of the constitution by its framers, and by the subse¬ quent acts of the national legislature, providing for its improvement and embellishment. It is admitted, that some of the provisions of the law now in question, are local in their very nature, and, therefore, confined to the city, or the district, in their operation. But the power of the corporation to establish lotteries, with the consent of the President, is not of this nat¬ ure. Lottery tickets are an article of com¬ merce, vendible in every part of the Union, as well as in the District of Columbia. A state law which forbids a citizen to sell or buy a ticket in a lottery, legally established by the national legislature, for national purposes, in¬ fringes the constitutional rights of the citizen, and tends to impede and defeat the exercise of this national power. He cannot be punished by a state, for selling or buying that which 433] Congress has, in the exercise of a great national power, authorized to be bought or sold. The authority of establishing this lottery, so far from being confined to the city, could not be conveniently or effectually exercised without extending the salable quality of the tickets throughout the Union. As a source of revenue, it would be inadequate to the objects for which it was established, without this ex¬ tension. It is not one of the ordinary sources of revenue for the mere municipal wants of the city. It is a national grant for national pur¬ poses, to be used in each particular instance, with the approbation of the President. It is, then, a national law, enacted for a national purpose, and has no other limits in its operation than the limits of the legislative power itself. If Congress had intended to confine its opera¬ tion within the District of Columbia, they would have expressed that intention. If, then. Congress have a right to raise a revenue, for any national purpose, by establishing a lottery, they had a right to establish this lottery; and no state law can defeat this, any more than the exercise of any other national power. But even supposing that it is not a tax or duty, such as Congress have the express power of establish¬ ing ; yet if it be necessary and proper, in the judgment of the court, fo carry into effect any power expressly granted, such as that of es¬ tablishing and governing the city, it may be exercised throughout the Union. Congress have the same power to establish lotteries for this purpose as the state legislatures, and every other legislature, have. The only difference is, 434] that with Congress it is the exercise of a national power, and must, therefore, be co- 298

extensive in its operation with the Union, al¬ though the money to be raised by it cannot be applied to the use of any other city in the Union than that which is the national capital, and in which, consequently, all the states, and all the people, have a common interest.

Mr. Webster, contra, insisted, that Congress had not the power, under the constitution, of establishing a lottery in the District of Colum¬ bia, for municipal purposes, and of forcing the sale of the tickets throughout the Union, in contravention of the state laws ; and, that even if they had the power, the law now in question did not purport to authorize the corporation of the city of Washington thus to force the sale of the tickets. It is clear that Congress, as a legislative body, exercise two species of legis¬ lative power: the one, limited as to its objects, but extending all over the Union; the other, an absolute, exclusive legislative power over the District of Columbia. The preliminary inquiry in the case now before the court, is, by virtue of which of these authorities was the law in question passed? When this is ascertained, we shall be able to determine its extent and ap¬ plication. In this country, we are trying the novel experiment of a divided sovereignty, be¬ tween the national government and the states. The precise line of division between these is not always distinctly marked. Government is a moral, not a mathematical science; and the powers of such a government especially, cannot be defined with mathematical accuracy [*435 and precision. There is a competition of op¬ posite analogies. We arrive at a just conclusion by reasoning from these analogies, and by a general regard to the objects and purposes of this scheme of government. With a view to the present question, it may, perhaps, be safely admitted, that there are certain acts of legisla¬ tion passed by Congress, with a local reference to this district, which proceed from the general powers with which Congress are invested. They are local in their immediate operation and effect, but they are passed in virtue of general legis¬ lative powers. Such are the acts appropriating moneys for constructing the navy yard and the Capitol. Some other acts are of a mixed nature. There are others clearly local, and passed in virtue of the local, exclusive jurisdiction. And of this latter class is the act now under consid¬ eration. It is for the establishment of a local city government, which arises from the exclu¬ sive power of legislation ; and the clause author¬ izing the establishment of lotteries, is combined with other clauses of a mere municipal charac¬ ter. Noscitur a sociis. Every act of legislation must be limited by its subject-matter, and there is nothing to show that this power is to be ex¬ ercised more extensively than the other powers of the corporation; nothing to show that this municipal power is to be carried beyond the city. It may be exercised within the city alone, and Congress has not said, and the court can¬ not intend, that it is to be exercised in other parts of the Union. Congress could not give such a charter to any other city in the Union, and if every federal power granted in [*436 the constitution were destroyed, this power would remain. It exists independently, and the legislative powers of the states can never conflict with it, because it can never operate within the states. Being a case of mere local

Wheat. 6.

1821

Cohens v. Viuginia.

436

legislation, it is not a ca,m» fcederis within that danse of the constitution which declares that the laws of the United States shall he the su¬ preme law of the land. There can be no ques¬ tion of supremacy and subordination where there is no connection or conflict. The consti¬ tution makes this provision, because other legis¬ lative powers were to operate throughout the Union; the Congress and the states were to legislate over the same subjects, and over the same territory; and therefore there might be conflict. It was because the two codes were to prevail in the same places, and over the same persons. But the provision cannot extend to laws enacted by Congress for the mere local municipal government of the city, because the reason on which it is founded does not extend to a case where all legislation is necessarily ex¬ clusive. There was no more reason in this instance to provide for a conflict of the two authorities, than in the case of the laws of a foreign state, which, except in the familiar ex¬ ample of questions relative to the lex loci con¬ tractus, cannot come in collision with our own laws, because they cannot operate extraterri- torially. So here, from the very nature of things, there can arise no conflict between the local laws of the District of Columbia, and those of the states, because each code is conflned to its own territory. Any sound interpretation of the 437 ] law in question, must limit it to the city of Washington. It does not even extend to the other municipal corporations within the District of Columbia, because it contains provisions expressly for the government of Washington alone, and does not profess to extend any of them beyond the limits of that city. A law can¬ not exceed the authority of the law-giver, and that does not extend beyond the district, and is limited in its actual exercise to the city. There is no authority showing that a grant of power of this kind to a municipal corporation extends beyond the local limits of the city.

The Attorney-General, for the plaintiffs in error, in reply, contended, that Congress, in passing the law under consideration, acted in the name of the whole nation, and for a gi-eat national object. Congress did not, as contended in the argument on the jurisdiction of the court, succeed, by the cession, merely to the legislative powers of Maryland and Virginia, over this district. They are not the trustees of those states only ; they are the trustees of the whole Union. The cession was to the Congress and government of the United States. The juris¬ diction over the territory belongs to the entire people of the United States. It is not the power of Maryland and Virginia which Congress rep¬ resents, but the power of all the states: and the territory ceded is to be looked at, not with reference to its origin, not as still forming ideally a part of Maryland and Virginia, but is to be regarded as if incorporated into every state in the Union. The question is not, then, 438] to be solved by asking what those states could do with respect to this territory, but what each state of the Union could do, with regard to its own territory; because, to borrow an expression from the municipal law, each state of the Union is seized jointly with all the rest, yer meet yer tout, of the whole jurisdiction over this territory. The acts of the Congress in legislating for the District of Columbia are

Wheat. 6.

the acts of all the people of all the .states. It is therefore a fallacy in argument to represent Congress as succeeding merely to the same de- i gree of power which Maryland and Virginia formerly had over this territory. Could tho.se states have taxed the other states, or borrowed money on their credit, for the improvement of this territory, as Congress have done? Although the jurisdiction of the states who formerly held the sovereignty and domain of this territory has been supplanted by Congress, the substituted jurisdiction is far more extensive than that which they held. It is a jurisdiction, which in the instances mentioned, and many others which might be enumerated, is capable of af¬ fecting all the states. It cannot be denied that the character of the jurisdiction which Congress has over the district, is widely different from that which it has over the states; for, over them. Congress has not exclusive jurisdiction. Its powers over the states are those only which are specifically given, and those which are nece.sisary to cany them into effect; whilst over the district it has all the powers which it has over the states, and in addition to these, a power of legislation exclusive of all the states. [*439 But although the jurisdiction over the disti'ict is of a different and more extensive character, yet it is not so circumscribed that it may not incidentally affect the states, although exerted for a local purpose, as it is called. Such is sometimes the delusive effect of single words and phrases, that the position, that in legislat¬ ing for the District of Columbia, Congress is a local legislature, for local purposes, and there¬ fore cannot affect the states by its laws, has almost become an aphorism with indolent or prejudiced inquirers. But in what sense can that be called a local government which pro¬ ceeds from the whole body of the nation? And how can that be termed a local object, which is closely and inseparably connected with the gen¬ eral interest of the whole people of the Union? As well might it be asserted that Congress acted as a local legislature, when it established otflces for the sale of lands in the western states, or fortifications at particular points on the sea- coast. It will not be pretended that the first establishment of the seat of government in this district, was an act done by Congress in its character of a local legislature, and for local purposes. How, then, can the subsequent acts for the improvement and embellishment of the city be so regarded? The act of May 6th, 1796, authorized the commissioners for erecting the public buildings to borrow money for that pur¬ pose. Would it have been competent for the legislatures of the states to have impeded this loan by punishing their citizens for sub.scribiug to this stock? And could the states prohibit the sale of the city lots within their territory, and thus arrest the improvement of the [*440 city? And if they could not, it is not because what Congress in the legitimate exercise of its powers has made it lawful to sell, the states cannot make it unlawful to buy? Let us test by these considerations the question before the court; and let us distinguish between Congress legislating for the municipal government of the city, and Congress, in its national character, providing the means of adding neces.sary public improvements to the national capital. Congress has itself made this distinction. When a regu-

299

440

Supreme Court of the United States.

1821

latioR for the mere internal police of the city is to be made, it is done by the corporation, or some other inferior agent, without the interfer¬ ence of the President of the United States. But, when an alteration of the plan of the city, or a public improvement affecting the whole of the city in a national point of view, is to he made, it is uniformly subjected to the control of the President. So here the specitic purpose in view, and for which the lottery was authorized by the President, was the establishment of a city hall, a necessary consequence of the establish¬ ment of the city, which last was also a neces¬ sary consequence of the establishment of the seat of government.

The opinion of the court was delivered by Mr. Chief Justice Marshall :

This case was stated in the opinion given on the motion for dismissing the writ of error for want of jurisdiction in the court. It now comes on to be decided on the question whether the Borough Court of Norfolk, in overruling the 441] defense set up under the act of Con¬ gress, has misconstrued that act. It is in these words :

“ The said corporation shall have full power to authorize the drawing of lotteries for effect¬ ing any important improvement in the city, which the ordinary funds or revenue thereof will not accomplish. Provided, that the .sum to be raised in each year shall not exceed the amount of $10,000. And pi’ovided, also, that the object for which the money is intended to be raised shall be first submitted to the Presi¬ dent of the United States, and shall be approv¬ ed of by him.”

Two questions arise on this act:

1st. Does it purport to authorize the corpo¬ ration to force the sale of these lottery tickets in states where such sales may be prohibited by law ? If it does,

2d. Is the law constitutional?

If the first question be answered in the affirm¬ ative, it will become nece,ssary to consider the second. If it should be answered in the nega¬ tive, it will be unneces.sary, and consequently improper, to pursue any inquiries, which would then be merely speculative, respecting the pow¬ er of Congress in the case.

In inquiring into the extent of the power granted to the corporation of Washington, we must first examine the words of the grant. We find in them no expression which looks beyond the limits of the city. The powers granted are all of them local in their nature, and all of them such as would, in the common course of things, 442] if not neces.sarily, be exercised within the city. The .subject on which Congress was employed when framing this act was a local subject; it vras not the establishment of a lot¬ tery, but the formation of a separate body for the management of the internal affairs of the city, for its internal government, for its police. Congress must have considered itself as delegat¬ ing to this corporate body powers for these ob¬ jects, and for these objects solely. In delegat¬ ing these powers, therefore, it seems reasonable to suppose that the mind of the legislature was directed to the city alone, to the action of the being they were creating within the city, and not to any extraterritorial operations. In de- 300

scribing the powers of such a being, no words of limitation need be used. They are limited by the subject. But, if it be intended to give its acts a binding efficacy beyond the natural limits of its power, and within the jurisdiction of a distinct power, we should expect to find, in the language of the incorporating act, some words indicating .such intention.

W ithout such words, we cannot suppose that Congress designed to give to the acts of the cor¬ poration any other effect, beyond its limits, than attends every act having the sanction of local law, when anything depends upon it which is to be tran.sacted elsewhere.

If this would be the reasonable construction of corporate powers generally, it is more espe¬ cially proper in a case where an attempt is made so to exercise those powers as to control and limit the penal laws of a state. This is an op¬ eration which was not, *we think, in [*443 the contemplation of the legislature, while in¬ corporating the city of Washington.

To interfere with the penal laws of a state, where they are not leveled against the legiti¬ mate powers of the Union, but have for their sole object the internal government of the coun¬ try, is a very serious measure, which Congress cannot be supposed to adopt lightly, or incon¬ siderately. The motives for it must be seriou.s and weighty. It would be taken deliberately, and the intention would be clearly and unequiv¬ ocally expressed.

An act, such as that under consideration, ought not, we think, to be so construed as tO' imply this intention, unless its provisions were such as to render the construction inevitable.

We do not think it essential to the corporate power in question, that it should be exercised out of the city. Could the lottery be drawn in any state of the Union? Does the corporate power to authorize the di’awing of a lottery im¬ ply a power to authorize its being drawn with¬ out the jurisdiction of a corporation,' in a place where it may be prohibited by law? This, we think, would scarcely be a.sserted. xlnd what clear legal distinction can be taken between a power to draw a lottery in a place where it is prohibited by law and a power to establish an office for the sale of tickets in a place where it is prohibited by law? It may be urged, that the place where the lottery is drawn is of no import¬ ance to the corporation, and therefore the act need not be so construed as to give power over the place, but that the right to sell tickets throughout the United *States is of im- [*444 porfance, and therefore ought to be implied.

That the power to sell tickets in every part of the United States might facilitate their sale, is not to be denied; but it does not follow that Congress designed, for the purpose of giving this increased facility, to overrule the penal laws of the several states. In the city of Wash¬ ington, the great metropolis of the nation, visit¬ ed by individuals from every part of the Union, tickets may be freely sold to all who are willing to purchase. Can it be affirmed that this is so limited a market that the incorporating act must be extended beyond its words, and made to conflict with the internal police of the states, unless it be construed to give a more extensive market?

It has been said that the states cannot make

Wheat. 6,

1831

Cohens a’. Virginia.

444

it unlawful to buy that which Congi-ess has made it lawful to sell.

This proposition is not denied; and, there¬ fore, the validity of a law punishing a eitizen of Virginia for purchasing a ticket in the city of Washington, might well be drawn into ques¬ tion. Such a laiv would be a direct attempt to counteract and defeat a measure authorized by the United States. But a law to punish the sale of lottery tickets in Virginia, is of a different character. Before we can impeach its validity, Ave must inquire Avhether Congress intended to empower this corporation to do any act within a state which the laws of that state might pro¬ hibit.

445] In addition to the very important circumstance, that the act contains no words indicating such intention, and that this exten¬ sive construction is not essential to the execu¬ tion of the corporate power, the court cannot resist the conviction, that the intention ascribed to this act, had it existed, would have been ex¬ ecuted by very different mean's from those which have been employed.

Had Congress intended to establish a lottery for those improvements in the city which are deemed national, the lottery itself would have become the subject of legislative consideration. It would be organized by law, and agents for its execution would be appointed by the Presi¬ dent, or in such other manner as the law might direct. If such agents were to act out of the district, there would be, probably, some provis¬ ion made for such a state of things, and in mak¬ ing such provisions Congress would examine its power to make them. The whole subject would be under the control of the government, or of persons appointed by the government.

But in this case no lottery is established by law, no control is exercised by the government over any which may be established. The lot¬ tery emanates from a corporate power. The corporation may authorize, or not authorize it, and may. select the purposes to which the pro¬ ceeds are to be applied. This corporation is a being intended for local objects only. All its capacities are limited to the city. This, as well as every other law it is capable of making, is a by-law, and, from its nature, is only co-exten- sive with the city. It is not probable that such 446] an agent would be employed in the ex¬ ecution of a lottery established by Congress; but when it acts, not as the agent for carrying into effect a lottery established by Congress, but in its own corporate capacity, from its own cor¬ porate powers, it is reasonable to suppose that its acts were intended to partake of the nature of that capacity and of those powers; and, like all its other acts, be merely local in its nature.

The proceeds of these lotteries are to come in aid of the revenues of the city. These revenues are raised by laws whose operation is entirely local, and for objects which are also local; for no person will suppose, that the President’s house, the Capitol, the Navy Yard, or other public institution, was to be benefltted by these lotteries, or was to form a charge on the city revenue. Coming in aid of the city revenue, they are of the same character with it ; the mere creature of a corporate power.

The circumstances, that the lottery cannot be

Wheat. 6.

drawn without the permission of the President, and that this resource is to be used only for im¬ portant improvements, have been relied on as giving to this corporate power a more extensive operation than is given to those with which it is associated. We do not think so.

The President has no agency in the lottery. It does not originate with him, nor is the im¬ provement to which its profits are to be applied to be selected by him. Congress has not enlarg¬ ed the corporate, power by restricting its exer¬ cise to cases of which the President might ap¬ prove.

*We very readily admit, that the act [*447 establishing the seat of government, and the act ■ appointing commissioners to superintend the public buildings, are laws of universal obligation. We admit, too, that the laws of any state to defeat the loan authorized by Con¬ gress, would have been void, as would have been any attempt to arrest the progress of the canal, or of any other measure which Congress may adopt. These, and all other laws relative to the district, have the authority which may be claimed by other acts of the national legis¬ lature ; but their extent is to be determined by those rules of construction which are applicable to all laws. The act incorporating the city of Washington is, unquestionably, of universal obligation ; but the extent of the corporate pow¬ ers conferred by that act, is to be determined by those considerations which belong to the case.

Whether we consider the general character of a law incorporating a city, the objects for which such law is u.sually made, or the words in which this particular power is con¬ ferred, we arrive at the same result. The cor¬ poration was merely empowered to authorize the drawing of lotteries ; and the mind of Con¬ gress was not directed to any provision for the sale of the tickets beyond the limits of the cor¬ poration. That subject does not seem to have been taken into view. It is the unanimous opinion of the court, that the law cannot be construed to embrace it.

Judgment affirmed.

*JuDGMENT. — This cause Came on to [*448 be heard on the transcript of the record of the Quarterly Session Court for the borough of Norfolk, in the commonwealth of Virginia, and was argued by counsel. On consideration whereof, it is adjudged and ordered, that the judgment of the said Quarterly Session Court of the borough of Norfolk, in this case, be, and the same is hereby affirmed, with costs.

Clted-.^ Pet. 43,203,20.5, 206, 222 ; 6 Pet. .566; 11 Pet. 397, 585 ; 12 Pet. 730, 723, 723, 737, 744, 748 ; 14 Pet. 624; 16 Pet. 621; 13 How. 31.5; 14 How. 119; 16 How. 387 ; 19 How. 616 ; 20 How. 433, 437 ; 24 How. 205 ; 1 Wall. 2.53, 600 ; 3 Wall. 661 ; 4 Wall. 113 ; 6 Wtill. 253, 488 ; 10 Wall. 261, 291 ; 12 Wall. 533 ; 16 Wall. 386 ; 1 Otto, 146 ; 3 Otto, 87, 142 ; 6 Otto, 201 ; 7 Otto, 690 ; 10 Otto, 364, 270, 286 ; 12 Otto, 140 ; Bald. 403, 406, 661 ; 4 Oranch, C. C. 393, 393 ; 5 Cranch, C. C. 247, 260, 277 ; Taney, 39; 1 Wood. & M. 85; 2 Wood. & M. 455; 5 Bank. Keg. 468 ; 7 Bank. Keg. 436 ; 10 Bank. Reg. 229 ; 18 Bank. Keg. 485 ; 3 Dill. 380 ; 2 Sawy. 449 ; 5 Sawy. 43 ; ISlatcbf. & H. 351 ; 3 Blatchf. 364 ; 11 Blatchf. 410; 3 AVoods, 230, 234, 240.

301

448

Supreme Court op the United States.

1821

[practice.]

GIBBONS V. OGDEN.

A decree of the highest court of equity of a state, affirming the decretal order of an inferior court of equity of the same state, refusing to dissolve an injunction granted on the filing of the bill, is not a final decree within the 25th section of the judiciary act of 1789, ch. 20, from which an appeal lies to this court.

Appeal from the court for the trial of im¬ peachments and the correction of errors of the state of New York.

This was a hill filed by the plaintiff below (Ogden), against the defendant below (Gib¬ bons), in the Court of Chancery of the state of New York, for an injunction to restrain the de¬ fendant from navigating certain steamboats on the waters of the stale of New York, lying be¬ tween Elizabethtown, in the state of New Jer- 449] sey, and the city of New A'ork; the. exclusive navigation of which with steamboats had been granted, by the legislature of New York, to Livingston & Fulton, under whom the plaintiff below claimed as assignee. On this bill an injunction was granted by the Chancel¬ lor, and on the coming in of the answer, which set up a right to navigate with steamboats be¬ tween the city of New York and Elizabeth¬ town, under a license to carry on a coasting trade, granted under the laws of the United States, the defendant below moved to dissolve the injunction, which motion was denied by the Chancellor. The defendant below appeal¬ ed to the court for the trial of impeachments and correction of errors ; the decretal order, re¬ fusing to dissolve the injunction, was affirmed by that court; and from this last order the de¬

fendant below appealed to this court, upon the ground that the case involved a question aris¬ ing under the constitution, laws, and treaties of the United States.

The cause was opened for the appellant by Mr. D. B. Ogden; but on inspecting the record, it not appearing that any final decree in the cause, within the terms of the 25th section of the judiciary act of 1789, ch. 20, had been pro¬ nounced in the State Court, the appeal was dis¬ missed for want of jurisdiction.

Decree. — This cause came on to be heard on the transcript of the record of the court for the trial of impeachments and the correction of errors, of *the state of New York. [*459 On inspection whereof, it is ordered, that the appeal, in this cause be, and the same is hereby dismissed, it not appearing from the record that there was a final decree in said court for the correction of errors, &c., from which an appeal was taken. ’

Cited— 10 Wheat. .504 ; 18 How. 86.

[practice.]

SULLIVAN ET AL.

V.

THE PULTON STEAMBOAT COMPANY.

In order to maintain a suit in the circuit court, the jurisdiction must appear on the record ; as if the suit is between citizens of different states, the

1. — Fidel .Johns. Ch. Rep. 1.50, and 17 Johns. Rep.

488, where the learned reader will find the case re¬ ported as decided In the state courts.

Note. — See note to Martin y. Hunter’s Lessee, 1 Wheat. 304, and note to Matthews v. Zane, 4 Craneh,

An appeal does not lie from a decree of the Cir¬ cuit Court perpetuating an injunction, hut leaving some matters of account open for further con¬ sideration. It is not a final decree. Brown v. Swsnn, 9 Pet. 1.

An order or decree overruling a plea is not final within the act. Rutherford v. Fisher, 4 Dali. 22.

A decree for an injunction in a patent cause, and a reference to a master to take an account of profits, is not final, and an appeal does not lie there¬ from. Barnard V. Gibson, 7 How. 6.50,

N o writ of error or appeal lies on an interlocutor.y decree dissolving an injunction, though it be with costs. Young V. Grundy, 6 Craneh, 51; Clark v. Shelton, Hempst. 207.

A decree dissolving an injnnction without dis¬ missing the bill, is not final. McCollum v. Eager, 2 How. 61.

A decree dissolving an injunction, granted upon a petition in the_ nature of a bill in equity, being onl,y interlocutory, and not a final decree, is not the subject of an appeal. Hiriast v. Ballou, 9 Pet. 156.

A decision sustaining, or overruling a demurrer, is not a final judgment, and therefore an appeal does not lie from it. Miner’s Bk. v. D. S., 5 How. 213 ; Blakely v. Fisk, Hempst. 11.

A decree dismissing a cross-bill is not final, and no appeal Ues therefrom. Ayres v. Carver. 17 How.

Under section 22 of the judiciary act of 1789, error does not lie on a judgment of a circuit court, re¬ versing with costs a judgment of a district court, such a judgment is not final. Mayberry v. Thomp¬ son, 5 How. 121.

A decree of the Supreme Court of probate re¬ viewing the decree of distribution of a probate court, and remitting the cause to such inferior court for further proceedings, is not final. Harvey V. lllchards, 2 GaU. 216.

A decree of a court of appeals in favor of plaint¬ iff, but remanding the case to an inferior court for

302

further proceedings, is not final, and no writ of error lies to the Supreme Courff. Pepper v. Dunlap, 5 How. 51 ; Winn v. Jackson, 12 Wheat. 135.

A decree granting a new trial on terms, not ap¬ pealable. Lee V. Kelly, 15 Pet. 213.

Where, on a libel for tortious seizure, restitution with costs and damages has been decreed, but the damages have been assessed, the decree is not final, and an appeal from it cannot be sustained. The Palmyra, 10 Wheat. .502 ; Chase v. Jaques, 11 Wheat.

Since the act of Congress of March 3, 1876, the Supreme Court has jurisdiction to review an order of a circuit court dismissing a cause, or remanding it to the state court under section 2 of that act. Hoadley v. San Francisco, 4 Otto, 4.

Granting a rehearing, or granting or dissolving a temporary injunction, rests in the sound discretion of the court, and furnishes no ground for an ap¬ peal. Buffington v. Harvey, 5 Otto, 99.

A decree which dissolves a preliminary injunc¬ tion without dismissing the bill, is not revlewable on appeal. Thomas v. Woolridge, 23 Wall. 283.

A decree, where a cause is held for further direc¬ tions, is not a final decree, revlewable on appeal. Railroad Co. v. Swasey, 23 Wall. 405.

Nor is a decree vacating a judicial sale of lands, and ordering a resale of them. Butterfield v. Usher, 1 Otto, 246.

The judgment of a circuit -court, reversing that of a district court and ordering a new trial, is not final, or revlewable on appeal. Baker v. White, 2 Otto, 176 ; Philip v. Gardner, 1 McArthur, 165.

A decree ordering an injunction, previously granted to restrain a sale under a deed of trust, to be dissolved, and directing a sale according to the deed of trust, and the bringing the proceeds into court, is a final decree. Railroad Co. v. Bradleys, 7 Wall. 575.

A decree of the circuit court where costs are to be taxed is not final, and an appeal from it is prema¬ ture. A formal decree should be entered after taxation, and an appeal taken from that. Wheeler V. Harris, 13 Wall. 51.

Wheat. 6..

1821

The Jonqcille.

450

citizenship of the respective parties must be set forth.

Appeal from the circuit Court for the Southern District of New York.

This was a hill in equity, filed in the court below, in which Sullivan, one of the plaintiffs, was described as a citizen of Massachusetts, and others of the plaintiffs, as citizens of Con¬ necticut and Vermont, and the defendants were described as a corporate body incorporated by 451 ] the legislature of the state of New York, for the purpose of navigating, by steam¬ boats, the waters of the East River, or Long Island Sound, in said state. The object of the bill was to obtain an injunction to prevent the defendants from so exercising the privileges granted to them by the said act, and by an as¬ signment from Livingston & Pulton of their rights under certain other acts of the legisla¬ ture of New York, as to obstruct the plaint¬ iffs in the right claimed by them under the- constitution and laws of the United States, and under a coasting license, of employing a certain steamboat belonging to the plaintiffs in the transportation of goods and passengers in the waters of the states of Connecticut and New York. The defendants demurred to the bill, and a decree dismissing it was entered pro forma, by consent, and the cause was brought by appeal to this court.

Mr. Webster, for the appellants, opened the record, from which, it not appearing that the court below had jurisdiction, as the respective parties were not described as citizens of differ¬ ent states, the decree, dismissing the bill, was affirmed.

Decree. — On motion of the appellants, by their counsel, and on inspection of the tran¬ script of the record of the Circuit Court for the Southern District of New York, it is de¬ creed and ordered, that the decree of the said Circuit Court, in this case, be, and the same is hereby affirmed, it not appearing from the record that the said Circuit Court had jurisdic- 452J tion in said cause. The said affirm¬ ance to be without prejudice to the complain¬ ants on the merits of the case.

Cited— 16 How. 340, 348, 350 ; 18 How. 364 ; 19 How. 473 : 21 How. 216 ; 9 Wall. 565 ; 12 Wall. ia5 ; 3 Wood. & M. 174 ; 1 Abb. IT. S. 679 ; 4 Biss. 126 ; Hemp. 424 ; 1 Sawy. 156.

[practice.]

THE JONQUILLE.

An admiralty suit, where an appeal has been taken from the Circuit Court to this court, butnot prosecuted, will be dismissed, upon producing- a certificate from the court below, that the appeal has been taken, and hot prosecuted.

Mr. WHEATON for the respondents, moved to docket and dismiss the appeal in the case, which was a prize cause, commenced in the Circuit Court of North Carolina, in which a de¬ cree for costs' and damages had been entered against the captors, from which they appealed, but had not prosecuted their appeal. He pro¬ duced a certificate from the court below to that effect. ,

Wheat. 6.

The court stated, that the case was within the spirit of the 20th rule of the court, although that rule applied, in terms, only to writs of error.

Motion granted. '

*[CHANCERY.] [*453