This Court has, constitutionally, appellate jurisdiction under
the Judiciary Act of 1789, c. 20, § 25, from the final
judgment or decree of the highest court of law or equity of a
state, having jurisdiction of the subject matter of the suit, where
is drawn in question the validity of a treaty, or statute of, or an
authority exercised under, the United State, 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 Constitution, treaties, or
laws of the United States, and the decision is in favor of such,
their validity; or of the constitution, or of treaty, or statute
of, or commission held under the United States, and the decision is
against the title, right, privilege, or exemption 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.
The act of Congress of the 4th of May, 1812, entitled "an act
further to amend the charter of the City of Washington," which
provides, (§ 6) that the corporation of the city shall be
empowered, for certain purposes, and under certain restrictions, to
authorize the 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.
Page 19 U. S. 265
This was a writ of error to the Quarterly Session Court for the
borough of Norfolk, in the State of Virginia, under the
twenty-fifth 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 the said borough, on Saturday, the second
day of September, one thousand eight hundred 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 Norfolk, 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 Maxwell's wharf, contrary to the act thus made and
provided in that case, since January, 1820. On the information of
William H. Jennings. "
Page 19 U. S. 266
"Whereupon the regular process of law was awarded against the
said defendants, to answer the said presentment, returnable to the
next succeeding term, which was duly returned by the Sergeant of
the borough of Norfolk -- '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 Commonwealth 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
presentment aforesaid, which was accordingly filed, and is in these
words:
" Norfolk borough, to-wit: Be it remembered, that James Nimmo,
attorney for the Commonwealth 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
informed that, by an act of the General Assembly of the said
Commonwealth of Virginia entitled, 'An act to reduce into one the
several acts, and parts of acts to prevent unlawful gaming.' It is,
among other things, enacted 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 Nimmo, as attorney aforesaid, further giveth the Court to
understand and be informed, that P. J. and M. J. Cohen, traders and
partners, late of the parish of Elizabeth River, and
Page 19 U. S. 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 June, 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 lottery tickets, and four quarter
lottery tickets, of the National Lottery, to be drawn in the City
of Washington, that being a lottery not authorized by the laws of
this Commonwealth, 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 Commonwealth, 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 Commonwealth
doth the same; whereupon a case
Page 19 U. S. 268
was agreed by them to be argued in lieu of a special verdict,
and is in these words:"
"Commonwealth against Cohens -- case agreed."
"In this case, the following statement is admitted 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 Washington, 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 following."
" No person, in order to raise money for himself 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 forfeit 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 indictment or information in the name of
the Commonwealth, in either case, for the use and benefit of the
literary fund. Nor shall any person or persons buy or sell within
this Commonwealth any lottery ticket, or part or share of a lottery
ticket, except in such lottery or lotteries as may be authorized by
the laws
Page 19 U. S. 269
thereof; and any person or persons offending herein, shall
forfeit and pay, for every such offence, the sum of one hundred
dollars, to be recovered and appropriated in manner last
aforesaid."
"That the Congress of the United States enacted a statute on the
third day of May, in the year of our Lord 1802, entitled, An Act,
&c. in the words and figures following:"
" An Act to incorporate 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 America, in Congress assembled, That the
inhabitants 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 interest and convenience."
" Sec. 2. And be it further enacted, That the Council of the
City of Washington shall consist of twelve
Page 19 U. S. 270
members, residents of the city, and upwards of twenty-five years
of age, to be divided into two chambers; the first chamber to
consist of seven members, and the second chamber of five members;
the second chamber to be chosen from the whole number of
councillors, 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 justices 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 council
afterwards, when the seals shall be broken, and the votes counted:
within three days after such election, they shall give notice to
the persons having the greatest number of legal votes, that they
are duly elected, and shall make their return to the Mayor of the
city. "
Page 19 U. S. 271
" Sec. 5. And be 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 purpose,
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, appoint their own officers, regulate their respective
fees, and remove them at pleasure: they shall judge of the
elections, returns, and qualifications of their own members, and
may, with the concurrence of three-fourths of the whole, expel any
member for disorderly behaviour, or malconduct in office, but not a
second time for the same offence: 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 ordinances
Page 19 U. S. 272
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 patrols, and erect lamps; to regulate the
stationing, anchorage, and mooring of vessels; to provide for
licensing and regulating auctions, retailers of liquors, hackney
carriages, waggons, carts and drays, and pawn-brokers within the
city; to restrain or prohibit gambling, and to provide for
licensing, regulating, or restraining theatrical or other public
amusements within the City; to regulate and establish markets; to
erect and repair bridges; to keep in repair all necessary streets,
avenues, drains and sewers, and to pass regulations necessary for
the preservation 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
Page 19 U. S. 273
for the licensing and regulating the 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 appropriate fines,
penalties and forfeitures for breach of their ordinances; to lay
and collect taxes; to enact by-laws for the prevention and
extinguishment 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 nonresidents of the said City,
unless in cases of intentional violation of the by-laws or
ordinances previously promulgated. All the fines, penalties and
forfeitures imposed by the Corporation 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 Columbia, 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'
Page 19 U. S. 274
previous notice thereof be given: no law shall be passed by the
City Council subjecting vacant or unimproved 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
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 America, in Congress assembled, 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. 2. And be it further enacted, That the Council of the
City of Washington, from and after the
Page 19 U. S. 275
period for which the members of the present Council have been
elected, shall 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 majority 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. 3. And be it further enacted, That the Council shall have
power to establish and regulate 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 superintendence of
public schools, to license and regulate, 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 the
Page 19 U. S. 276
laws of the Corporation, and to give such compensation to the
Mayor of the City as they may deem fit."
" Sec. 4. 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 America, in Congress assembled, That from and
after the first Monday in June next, the Corporation 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 Board of Aldermen, immediately after
they shall
Page 19 U. S. 277
have assembled in consequence of the first election, shall
divide themselves by lot into two classes; the 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
Page 19 U. S. 278
Council, and no other person whatever shall exercise the right
of suffrage at such election."
" Sec. 3. And be it further enacted, That the present Mayor of
the City of Washington shall be, and continue such, until the
second Monday 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 majority 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, without favour 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 consent of a majority of the members of the
Board of Aldermen, appoint to all offices under the Corporation
(except the commissioners of elections), 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 appoint
proper persons to fill up all vacancies during the recess of the
Board of Aldermen, to hold such
Page 19 U. S. 279
appointment until the end of the then ensuing session. He shall
have power to convene the two Boards, when, in his opinion, the
good of the community may 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
compensation, to be allowed and fixed by the two boards, which
shall neither be increased or diminished 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 bona 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 be
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 Aldermen, and Board of Common Council,
shall be held on the first Monday in June next, and on the first
Monday in June annually thereafter. The first election to be held
by three commissioners to be appointed in each ward by the Mayor of
the City, and at such place in each ward as he may direct; and all
subsequent elections shall be held by a like number
Page 19 U. S. 280
of Commissioners, to be appointed in each ward by the two
boards, in joint meeting, which several appointments, except the
first, shall be 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 commissioners for all subsequent elections, to
give at least five days public notice of the place in each ward
where such elections are to be held. The said commissioners shall,
before they receive 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 return 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 judgment 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 be opened at
ten o'clock in the morning, and be closed at seven o'clock in the
evening, of the same day. Immediately on closing the polls, the
commissioners 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
Page 19 U. S. 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 subsequent elections,
having the greatest number of legal votes for the Board of
Aldermen; and the three persons having the greatest number of legal
votes for the Board of Common Council, shall be duly elected; and
in all cases of an equality of votes, the commissioners shall
decide by lot. The said returns shall be 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 be made by the said commissioners, 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 legality of the
elections, returns and qualifications of its own members, and shall
supply vacancies in its own body, by causing elections to be made
to fill the same, in the ward, and for the Board in which such
vacancies shall happen, giving at least five days notice previous
thereto; and each Board shall have full power to pass all rules
necessary and requisite to enable itself to come to a just decision
in cases of a contested election of its own members: and the
several members of each Board shall, before entering upon the
duties of their office, take the following oath or affirmation:
Page 19 U. S. 282
'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 administered 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
inhabitants of the City of Washington, 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 improvements."
" That after providing for all objects of a general nature, the
taxes raised on the assessable property in each ward, shall be
expended therein, 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 extinction 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 support
of the poor,
Page 19 U. S. 283
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 curbstone of the foot pavement, and paving the
gutters or carriage way thereof, or otherwise improving said
street, agreeably to its graduation, 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 repair; to lay open
streets, avenues, lanes and alleys, and to regulate or prohibit all
inclosures thereof, and to occupy and improve for public purposes,
by
Page 19 U. S. 284
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 regulate the measurement
of, and weight, by which all articles brought into the city for
sale shall be disposed of; to provide for the appointment of
appraisers, and measurers of builders' work and materials, and also
of wood, coal, grain and lumber; to restrain and prohibit the
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 offence; and to punish such free negroes and
mulattoes for such offences, by fixed penalties, not exceeding
twenty dollars for any one offence; and in case of inability of any
such free negro or mulatto to pay and satisfy and such penalty and
costs thereon, to cause such free negro or mulatto to be confined
to labour for such reasonable time, not exceeding six calendar
months, for any one offence, as may be deemed equivalent to such
penalty and costs; to cause all vagrants, idle or disorderly
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 loitering in or about tippling houses, or who can show
no reasonable cause of business or employment 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 eves-droppers and
night walkers, all who
Page 19 U. S. 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 behaviour for a reasonable time, and to
indemnify the City against any charge for their support, and in
case of their refusal or inability to give such security, to cause
them to be confined to labour for a limited time, not exceeding one
year at a time, unless such security should be sooner given. But if
they shall afterwards 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 necessary; 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
authorize 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 President of the United
States, and shall be approved of by him. To take care of, preserve
and regulate the several burying grounds within the City; to
provide for registering of births, deaths and marriages; to cause
abstracts or minutes
Page 19 U. S. 286
of all transfers of real property, 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 offence;
and to pass all laws which shall be deemed necessary and proper for
carrying into execution the foregoing powers, and all other powers
vested in the Corporation, or any of its officers, either by this
act, or any former act."
" Sec. 7. And be it further enacted, That the Marshal of the
District of Columbia shall receive, and safely keep, within the
jail for Washington county, at the expense of the City, all persons
committed thereto under the sixth section of this act, until other
arrangements be made by the Corporation for the confinement of
offenders, within the provisions of the said section; 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 Corporation, 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 against every such
defendant, returnable to the next Circuit Court for the County of
Washington thereafter,
Page 19 U. S. 287
and which shall be proceeded on as in other writs of the like
kind."
" Sec. 8. And be it further enacted, That unimproved 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 notice 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 property belongs to persons residing
out of the United States; three months 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
purchaser 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 reinstated in his original right and title;
but if no such payment or tender be made
Page 19 U. S. 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 proprietors, his or their heirs, or
legal representatives; 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 Corporation, 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 informality 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 persons having a right to vote, agreeably to the
provisions of the second section of this act. "
Page 19 U. S. 289
" Sec. 11. And be it further enacted, That so much of any former
act as shall be repugnant to the provisions of this act, be, and
the same is hereby repealed."
"Which statutes are still in force and unrepealed. That the
lottery, denominated the National Lottery, before mentioned, the
ticket of which was sold by the defendants as aforesaid, 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.
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 defendants as
aforesaid, might 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 Virginia,
prohibiting such sale, is valid, notwithstanding the said acts of
Congress, then judgment 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
Page 19 U. S. 290
that the defendants are guilty in manner and form, as in the
information against them is alleged, and they do assess their fine
to one hundred dollars besides 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
aforesaid, in manner aforesaid assessed, and the costs of this
prosecution; and the said defendants may be taken, &c."
From which judgment the defendants, by their counsel, prayed an
appeal to the next Superior 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.
Commonwealth's costs, $31 50 cents.
Page 19 U. S. 375
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the
Court.
This is a writ of error to a judgment rendered 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 prosecution 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 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; 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 Congress, then judgment to be entered that the defendants
are guilty, and that the Commonwealth recover against them one
hundred dollars and costs. "
Page 19 U. S. 376
Judgment was rendered against the defendants; and the Court in
which it was rendered being the highest Court of the State in which
the cause was cognizable, the record has been brought into this
Court by writ of error.
*
The defendant in error moves to dismiss this writ, for want of
jurisdiction.
In support of this 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 it. 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 tendency is to show that this Court has no jurisdiction 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
Page 19 U. S. 377
points made at the bar are 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 violation, 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 in 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.
Page 19 U. S. 378
1st. The first question to be considered 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 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 authority."
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 by 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 Constitution must grow out of those
provisions which are capable
Page 19 U. S. 379
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 exposition of the first 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. Congress seems to
have intended to give its own construction of this part of the
Constitution in the twenty-fifth section of the Judiciary Act, and
we perceive no reason to depart from that construction.
The jurisdiction of the Court, then, being extended 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
withdraw
Page 19 U. S. 380
any case of this description from that jurisdiction, must
sustain the exemption they claim on the spirit and true meaning 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 general proposition that a sovereign
independent State is not suable except by its own consent.
This general proposition will not be controverted. 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 portion of its
sovereignty, the question whether a liability to suit be a part of
this portion depends on the instrument by which the surrender 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 American people, have
believed a close and firm Union to be essential to their liberty
and to their happiness. They have been taught by experience 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 influence of this opinion,
and thus instructed by experience,
Page 19 U. S. 381
the American people, in the conventions of their respective
States, adopted the present Constitution.
If it could be doubted whether, from 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 Constitution, and the laws of the United States, which
shall be made 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; any thing 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 distinction between
the government of the Union and those of the States. The general
government, 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 powers are confided, and if it
were possible to doubt the great purposes for which they were so
confided, the people of the United States have declared that they
are given
"in order to form a more perfect union, establish justice,
ensure domestic tranquillity, provide for the common defence,
promote the general welfare, and secure the blessings of liberty to
themselves and their posterity. "
Page 19 U. S. 382
With the ample powers confided to this supreme government, for
these interesting purposes are connected many express and important
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 sovereignty of the States; but, in addition to
these, the sovereignty of the States is surrendered in many
instances where the surrender can only operate to the benefit of
the people, and where, perhaps, no other power is conferred on
Congress than a conservative power to maintain the principles
established in the Constitution. The maintenance of these
principles in their purity is certainly among the great duties of
the government. One of the instruments by which this duty may be
peaceably performed is the judicial department. It is authorized to
decide all cases of every description 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 subordination 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 exception of those
cases in which a State may be a
Page 19 U. S. 383
party? Will the spirit of the Constitution 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
enumeration of those cases to which the jurisdiction of the federal
Courts is extended in consequence of the character of the parties.
In that enumeration, we find "controversies between two or more
States, between a State and citizens of another State," "and
between a State and foreign States, citizens, or subjects."
On 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 jurisdiction 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 Constitution 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 interested in its decision, the framers of our
Constitution thought it necessary for the purposes of justice to
provide a
Page 19 U. S. 384
tribunal as 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 laws, questions in which every American citizen must
be deeply interested, 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 purpose
of narrowing the construction which the words of that instrument
seem to require, it is proper to place in the opposite scale those
principles, 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 coextensive 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 considered. In reasoning upon it as an abstract
question, there would, probably, exist no contrariety of opinion
respecting it. Every argument proving the necessity of the
department proves also the propriety of giving this extent to it.
We do not mean to say that the jurisdiction of the Courts of the
Union should be construed to be coextensive with the legislative
merely because it is fit that it should be so; but we mean to say
that this fitness furnishes an argument
Page 19 U. S. 385
in construing the Constitution which ought never to be
overlooked, and which is most especially entitled to consideration
when we are inquiring whether the words of the instrument which
purport to establish this principle shall be contracted for the
purpose of destroying it.
The mischievous consequences of the construction contended for
on the part of Virginia are also entitled to great consideration.
It would prostrate, it has been said, the government 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 executed by its own
means in any State disposed to resist its execution by a course of
legislation? The laws must be executed by individuals acting within
the several States. If these individuals may be exposed to
penalties, and if the Courts of the Union cannot correct the
judgments 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 members. 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 counsel for the defendant
Page 19 U. S. 386
in the declaration that the 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
inconsiderable degree to their occurrence.
Let it be admitted that the cases which have been put are
extreme and improbable, yet there are gradations of opposition to
the laws, far short to those cases, which might have a baneful
influence on the affairs of the nation. 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 revolution 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 by
which the legislatures and people are influenced, and will
constitute perfectly impartial tribunals. In many States, the
judges are dependent for office and
Page 19 U. S. 387
for salary on the will of the legislature. 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 Congress. These
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 extraordinary
commotion. But a Constitution 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
exposed to storms and tempests, 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 reasonable to expect that a
government should repose on its
Page 19 U. S. 388
own Courts, rather than on others. There is certainly nothing in
the circumstances under which our Constitution was formed, nothing
in the history of the times, which would justify the opinion that
the confidence 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 confederation were as
constitutionally obligatory as the laws enacted by the present
Congress. That they were habitually disregarded is a fact of
universal notoriety. With the knowledge of this fact, and under its
full pressure, a convention was assembled to change the system. Is
it so 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 construction of the new system? We are told, and we are truly
told, that the great change which is to give efficacy to the
present system is its ability to act on individuals directly,
instead 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 individual without the aid of any other power; why may
they not protect him from punishment for performing his duty in
executing them?
Page 19 U. S. 389
The counsel for Virginia endeavor to obviate the force of these
arguments by saying 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
produce 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 expires 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 Constitution, and the people can unmake it. It is the
creature of their will, and lives only by their will. But this
supreme and irresistible power to make or to unmake resides only in
the whole body of the people, not in any subdivision of them. The
attempt of any of the parts to exercise it is usurpation, and ought
to be repelled by those to whom the people have delegated their
power of repelling it.
The acknowledged inability of the government, 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
Page 19 U. S. 390
inability to preserve itself against a section of the nation
acting 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 capable of performing
all its functions. The argument 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 people, for its destruction; and, conscious of
this inability, they have not made the attempt. But they were able
to provide against the operation of measures adopted in any one
State whose tendency might be to arrest the execution of the laws,
and this it was the part of true wisdom to attempt. We think they
have attempted it.
It has been also urged as an additional objection 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 partiality 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 citizens. That jealousy which might exist
in the first case could not exist in the last, and therefore the
judicial power is not extended to the last.
Page 19 U. S. 391
This is very true, so far as jurisdiction depends on the
character of the parties; and the argument would have great force
if urged to prove that this Court could not establish 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
depended 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 2d 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 not the sole nor the greatest
object for which this department was created. A more important, a
much more interesting, object was the preservation of the
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
under that Constitution and those laws. If the Constitution or laws
may be violated by proceedings
Page 19 U. S. 392
instituted by a State against its own citizens, and if that
violation may be such as essentially 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 attentive
consideration, the Court can perceive no reason founded on the
character of the parties for introducing an exception which the
Constitution has not made, and we think that the judicial 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 jurisdiction, if given, is
original, and cannot be exercised in the appellate form.
The words of the Constitution are,
"in all cases affecting ambassadors, other public ministers, and
consuls, and those in which a State shall be a party, the Supreme
Court shall have original jurisdiction. In all the other cases
before mentioned, the Supreme Court shall have appellate
jurisdiction."
This distinction between original and appellate 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 must be exercised in
the appellate
Page 19 U. S. 393
form are 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 jurisdiction 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 reconcile them, and not to permit their
seeming repugnancy to destroy each other. We must endeavor 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 character 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
Page 19 U. S. 394
those cases in which 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 under the Constitution or a law.
This reasonable construction is rendered necessary 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 circumstance,
would have no jurisdiction, and which, of consequence, could not
originate in the Supreme Court. In such a case, the jurisdiction
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 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 necessity.
It is observable that, in this distributive clause, no negative
words are introduced. This observation is not made for the purpose
of contending that the legislature may "apportion the judicial
power between the Supreme and inferior Courts according to its
will." That would be, as was said by this Court in the case of
Marbury v. Madison, to render the distributive clause
"mere surplusage," to make it "form without substance." This
cannot, therefore, be the true construction of the article.
Page 19 U. S. 395
But although the absence of negative words will not authorize
the legislature to disregard the distribution of the power
previously granted, their absence will justify a sound construction
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 operation 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, affirmative words ought not
to be construed negatively.
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 jurisdiction 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 the
Page 19 U. S. 396
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 dismiss the suit or give
judgment against the State, might not its decision be revised 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, whose 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 employed, it would be difficult to give them this construction
if they would admit of any other. But without negative words, this
irrational construction can never be maintained.
So, too, in the same clause, the jurisdiction of the Court is
declared to be original "in cases affecting ambassadors, other
public ministers, and consuls." There is, perhaps, no part of the
article under consideration so much required by national policy as
this, unless it be that part which extends the judicial power "to
all cases arising under the Constitution, laws, 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, unless the jurisdiction of
the federal Courts be rendered exclusive
Page 19 U. S. 397
by the words of the third article. If the words, "to all cases,"
give exclusive jurisdiction in cases affecting foreign ministers,
they may also give exclusive jurisdiction, if such be the will of
Congress, in cases arising under the Constitution, laws, and
treaties of the United States. Now suppose an individual were to
sue a foreign minister in a State court, and that Court were to
maintain its jurisdiction and render judgment against the minister
-- could it be contended that this Court would be incapable of
revising such judgment, because the Constitution had given it
original jurisdiction in the case? If this could be maintained,
then a clause inserted for the purpose of excluding 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 another Court
and that Court were to assert jurisdiction. This tribunal,
according to the argument 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 appellate 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 frequently
exercised in such cases, and has never been questioned. It would be
extremely mischievous to withhold its exercise. Yet the consul is a
party on the record. The truth is that, where the words confer only
appellate jurisdiction, original jurisdiction is most
Page 19 U. S. 398
clearly not given; but where the words 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 distributive clause
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
immemorial, have guided Courts in their construction of instruments
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 this 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 in the preceding clause, jurisdiction might be exercised
in consequence of the character of the party, and an original suit
might be instituted in any of the federal Courts, not to those
cases in which an original suit might not be
Page 19 U. S. 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 cannot take original jurisdiction. In
every other case -- that is, in every case to which the judicial
power extends and in which original jurisdiction is not expressly
given -- that judicial power shall be exercised in the appellate,
and only in the appellate, form. The original jurisdiction of this
Court cannot be enlarged, but its appellate jurisdiction may be
exercised in every case cognizable under the third article of the
Constitution, in the federal Courts, in which original jurisdiction
cannot be exercised; and the extent of this judicial power is to be
measured not by giving the affirmative words of the distributive
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 general 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 actually before the Court is
investigated with care, and considered in its full extent. Other
principles which may serve to illustrate it are considered
Page 19 U. S. 400
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 single question
before the Court, so far as that case can be applied to this, was
whether the legislature could give this Court original jurisdiction
in a case in which the Constitution had clearly not given it, and
in which no doubt respecting 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 article, "it
would certainly have been useless to proceed farther than to define
the judicial power and the tribunals in which it should be vested."
The Court says that such a construction would render the clause
dividing the jurisdiction of the Court into original and appellate
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 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
Page 19 U. S. 401
effect, and therefore such a construction is inadmissible unless
the words 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 imply 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
effort now made is to apply the conclusion to which the Court was
conducted by that reasoning in the particular case to one in which
the words have their full operation when understood affirmatively,
and in which the negative or exclusive sense is to be so used as to
defeat some of the great objects of the article.
To this construction the Court cannot give its assent. The
general expressions in the case of
Marbury v. Madison must
be understood with the limitations which are given to them in this
opinion -- limitations
Page 19 U. S. 402
which in no 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
Constitution, and yet to be apparently without the jurisdiction of
the Court.
Were a State to lay a duty on exports, to collect the money and
place it in her treasury, could the citizen who paid it, he asks,
maintain 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 entirely 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 money by mistake. The law raises an assumpsit to return the
money, and it is upon that assumpsit 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
contracts 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
resemblance to that under consideration. Suppose a citizen to
refuse to pay this export duty, and a suit to be instituted for the
purpose of compelling him to pay it. He pleads the Constitution of
the United States in bar of the action, notwithstanding which the
Court gives judgment against him. This would be a case arising
under
Page 19 U. S. 403
the Constitution, and would be the very case now before the
Court.
We are also asked, if a State should confiscate property secured
by a treaty, whether the individual could maintain an action for
that property?
If the property confiscated be debts, our own experience informs
us that the remedy of the creditor against his debtor remains. If
it be land, which is secured by a treaty, and afterwards
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 discharging 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, who should plead the Constitution in bar of such
prosecution. If his plea should be overruled, and judgment rendered
against him, his case would resemble this; and, unless the
jurisdiction of this Court might be exercised over it, the
Constitution would
Page 19 U. S. 404
be violated, 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 confines of the Constitution. We
cannot pass it by because it is doubtful. With whatever doubts,
with whatever difficulties, a case may be attended, 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. Questions may occur which we would gladly avoid, but
we cannot avoid them. All we can do is to exercise our best
judgment and conscientiously 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 comprehensive 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, however 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.
Page 19 U. S. 405
This may be very true, but by no 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
Constitution, 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 Constitution, 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 Eleventh Amendment.
It is in these words:
"The judicial power of the United States shall not be construed
to extend to any
Page 19 U. S. 406
suit in law or equity commenced or prosecuted against one of the
United States, by citizens of another State, or by citizens or
subjects of any foreign State."
It is a part of our history that, at the adoption 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 amendment 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 compulsory appearance before the tribunal of the nation
may be inferred from the terms of the amendment. It does not
comprehend controversies 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 ascribe the amendment, then, to some other cause than the
dignity of a State. There is no difficulty 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 amendment, 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 reason
to retain the jurisdiction of the Court in those
Page 19 U. S. 407
cases, because it might be essential to the preservation of
peace. The amendment, therefore, extended to suits commenced or
prosecuted by individuals, but not to those brought by States.
The first impression made on the 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 individual 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 consulting 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 appear to the Court to justify 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 language, it is
the prosecution of some demand in a Court of justice. The remedy
for every species of wrong is, says Judge Blackstone, "the being
put in possession of that right whereof the party injured is
deprived."
"The instruments whereby this remedy is obtained are a diversity
of suits and actions, which are defined by the
Page 19 U. S. 408
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 were 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 justice, and to prosecute the suit is,
according to the common acceptation of language, to continue that
demand. By a suit commenced by an individual against a State, we
should understand 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 amendment was introduced
into Congress, and others might be commenced before it should be
adopted by the State legislatures, and might be depending at the
time of its adoption. The object of the amendment was not only to
prevent the commencement of future suits, but to arrest the
prosecution of those which might be commenced 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 already commenced, may be
Page 19 U. S. 409
prosecuted against a State by the citizen of another State. If a
suit, brought in one Court and carried by legal process to a
supervising Court, be a continuation of the same suit, then this
suit 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 defence 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 authorized to examine a record upon which a
judgment was given in another Court, and, on such examination, to
affirm or reverse the same according 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
Abridgment, 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 release 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 Reports. 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 possession of any thing which is
withheld
Page 19 U. S. 410
from him, not when its operation is entirely defensive.
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 tribunal to reexamination. It does not in any manner act
upon the parties; it acts only on the record. It removes the record
into the supervising tribunal. Where, then, a State obtains a
judgment against an individual, and the Court, rendering such
judgment, overrules a defence 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 inquiring whether the judgment
violates the Constitution 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 reexamined.
Nothing is demanded from the State. No claim against it of any
description is asserted or prosecuted. The 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 law,
and because, perhaps, it is more technically proper where a single
point of law, and not the whole case, is to
Page 19 U. S. 411
be reexamined. But an appeal might be given, and might be so
regulated as to effect every purpose 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 only asserts the constitutional right to
have his defence examined by that tribunal whose province 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 determine. As the party who has obtained a
judgment 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 nonappearance, but the judgment is to be reexamined, 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 uniformly 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 that no suit can be commenced
Page 19 U. S. 412
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
favour of the United States into a superior Court, where they have,
like those in favour of an individual, been reexamined, 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 jurisdiction 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 reexamining the question whether that
judgment be in violation of the Constitution 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 possession 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 Eleventh 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 originally framed,
and we 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.
Page 19 U. S. 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 arguments 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 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 Constitution, the
argument fails with it.
This hypothesis is not founded on any words in the Constitution
which might seem to countenance it, but on the unreasonableness of
giving 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
constitutional relation which subsists between the government of
the Union and the governments of those States which compose it.
Let this unreasonableness, this total incompatibility, 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
Page 19 U. S. 414
many other respects, the American people are one, and the
government, which is alone capable of controlling 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 supreme. It can, then, in effecting these objects,
legitimately control all individuals or governments 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
purposes sovereign, for some purposes subordinate.
In a government so constituted, is it unreasonable that the
judicial power should be competent to give efficacy to the
constitutional laws of the legislature? That department can decide
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 unreasonable that it should also be empowered to decide on the
judgment of a State tribunal enforcing such unconstitutional law?
Is it so very unreasonable as to furnish a justification for
controlling the words of the Constitution?
We think it is not. We think that, in a government
Page 19 U. S. 415
acknowledgedly supreme, 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 judgments of the State tribunals which
may contravene the Constitution or laws of the United States is, we
believe, essential to the attainment of those objects.
The propriety of entrusting the construction of the
Constitution, and laws made in pursuance thereof, to the judiciary
of the Union has not, we believe, as yet, been drawn into question.
It seems to be a corollary from this political axiom that the
federal Courts should either possess exclusive jurisdiction in such
cases, or a power to revise the judgment rendered in them, by the
State tribunals. If the federal and State courts have concurrent
jurisdiction in all cases arising under the Constitution, laws, and
treaties of the United States, and if a case of this description
brought in a State court cannot be removed before judgment, 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
constituted. "Thirteen independent Courts," says a very celebrated
statesman (and we have now more than twenty such Courts)
"of final jurisdiction over the same causes, arising upon the
same laws, is a hydra in government from
Page 19 U. S. 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 Constitution 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 restrained, then, by the political relations between
the general and State governments from construing the words of the
Constitution defining the judicial power in their true sense. We
are not bound to construe them more restrictively than they
naturally import.
They give to the Supreme Court appellate jurisdiction in all
cases arising under the Constitution, laws, and treaties of the
United States. The words are broad enough to comprehend all cases
of this description, in whatever Court they may be decided. In
expounding 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 naturally examine the
state of things existing at the time, and their work sufficiently
attests that they did so. All acknowledge that they were convened
for the purpose of strengthening the confederation by enlarging the
powers of the government, and by giving efficacy
Page 19 U. S. 417
to those which it before possessed, but could not exercise. They
inform us themselves, in the instrument they presented to the
American public, that one of its objects was to form a more perfect
union. Under such circumstances, 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 confederation, Congress
established Courts which received 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 jurisdiction over
those cases decided in the State courts to which the judicial power
of the federal government extended.
The confederation gave to Congress the power "of establishing
Courts for receiving and determining finally appeals in all cases
of captures."
This power was uniformly construed to authorize those Courts to
receive appeals from the sentences of State courts, and to affirm
or reverse them. State tribunals are not mentioned, but this clause
in the confederation necessarily comprises them. Yet the relation
between the general and State governments was much weaker, much
more lax, under the confederation than under the present
Constitution, and the States being much more completely sovereign,
their institutions were much more independent.
The Convention which framed the Constitution, on
Page 19 U. S. 418
turning their attention to the judicial power, found it limited
to a few objects, 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
under the Constitution, laws, and treaties of the United States,
and, in a subsequent clause, declare 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 jurisdiction.
Great weight has always been attached, and very rightly
attached, to contemporaneous exposition. No question, it is
believed, has arisen to which this principle applies more
unequivocally 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 intrinsic merit entitles it to this
high rank, and the part two of its authors performed in framing 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 entirely on
the extent of its powers, and on its diminution of State
sovereignty, are entitled to the more consideration where they
Page 19 U. S. 419
frankly avow that the power objected to is given, and defend
it.
In discussing the extent of the judicial power, the Federalist
says,
"Here another question occurs: what relation would subsist
between the national and State courts in these instances of
concurrent jurisdiction? I answer that an appeal would certainly
lie from the latter to the Supreme Court of the United 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 inferior federal Courts.
The objects of appeal, not the tribunals from which it is to be
made, are alone contemplated. From this 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 concurrent jurisdiction in matters of
national concern, else the judicial authority 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 inadmissible, as it would
defeat some of the most important and avowed purposes of the
proposed government, 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 latter will, of course,
be natural auxiliaries to the execution
Page 19 U. S. 420
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
convention is that all the causes of the specified classes shall,
for weighty public reasons, receive their original or final
determination in the Courts of the Union. To confine, therefore,
the general expressions which give appellate jurisdiction to the
Supreme Court to appeals from the subordinate federal Courts,
instead 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 Constitution, 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 of the Convention which formed
the Constitution. 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 unauthorized by the
Constitution.
While on this part of the argument, it may be also material to
observe that the uniform decisions 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 whose judgments have been
revised. It has been the unwelcome
Page 19 U. S. 421
duty of this tribunal to reverse the judgments of many State
courts in cases in which the strongest State feelings were engaged.
Judges, whose talents and character would grace any bench, to whom
a disposition to submit to jurisdiction that is usurped, or to
surrender their legitimate powers, will certainly not be imputed,
have yielded without hesitation to the authority by which their
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
confidence in that construction.
In opposition 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 totally distinct and
independent of each other. If this Court can correct the errors of
the Court 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
national tribunal a supervising power over those judgments 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
Page 19 U. S. 422
still derives 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 argument
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 authorize 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
appellate jurisdiction in a few specified cases in the decision of
which the nation takes an interest 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 objects of
Page 19 U. S. 423
our Union be considered; let the great fundamental principles on
which the fabric stands be examined; and we think the result must
be that there is nothing so extravagantly 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 import this power should be restricted by a forced
construction. The question then must depend on the words
themselves, and on their construction 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
jurisdiction 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 tickets, which is set forth, and further states the act of
Congress by which the City of Washington was authorized to
establish the lottery. It then states that the lottery was
regularly established 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 Assembly, on which the
prosecution is founded, be not itself invalid? These questions were
decided against the operation of the act of Congress and in favour
of the operation of the act of the State.
Page 19 U. S. 424
If the twenty-fifth 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 Congress 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 Congress, which is made in
the eighth 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 Congress as the legislature of the Union, for, strip
them of that character and they would not possess 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 exclusive legislation. This
proposition need not be enforced.
The second clause of the sixth article declares that "This
Constitution, and the laws of the United States, which shall be
made in pursuance 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 Congress, made in
pursuance of
Page 19 U. S. 425
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 this construction, and prove that an act of Congress,
clothed in all the forms which attend other legislative acts and
passed in virtue of a power conferred on, and exercised by Congress
as the legislature 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 sitting as a Court of equity as if the powers belonging to
those departments were vested in different tribunals. Though united
in the same tribunal, they are never confounded with each
other.
Without inquiring how far the union of different characters in
one court, may be applicable, in principle, to the union in
Congress of the power of exclusive legislation in some places and
of limited legislation in others, it may be 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 information of the character in which the
court sits, and consequently of the extent of its powers. But
Page 19 U. S. 426
if the forms of proceeding were 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 powers 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 virtue 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 punish 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 jurisdiction 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.
Page 19 U. S. 427
Let these actual provisions of of the law, or any other
provisions which can be made on the subject, be considered with a
view to the character in which Congress acts when exercising its
powers of exclusive legislation.
If Congress 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
offence be tried in any other court than that of the place in which
it has been committed? How can the offender 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 sovereign, and the individual punished, who, within that
jurisdiction, shall rescue the body.
Were any one State of the Union to pass a law for trying a
criminal in a court not created by itself, in a place not within
its jurisdiction, and direct the sentence to be executed without
its territory, we should all perceive and acknowledge its
incompetency to such a course of legislation. If Congress be not
equally incompetent, it is because that body unites the powers of
local legislation with those which are 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, as an
incident, the power of making that legislation effectual, and the
incidental power may be exercised
Page 19 U. S. 428
throughout the Union, because the principal power is given to
that body as the legislature of the Union.
So, in the same act, a person who, having knowledge of the
commission of murder or other felony on the high seas or within any
fort, 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 adjudged to be imprisoned,
&c.
It is clear that Congress cannot punish felonies generally, and,
of consequence, cannot punish misprision of felony. It is equally
clear that a State legislature, the State of Maryland 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 committed within it?
The solution, and the only solution of the difficulty, is that
the power vested in Congress, as the legislature of the United
States, to legislate 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 pursue 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
offence might be committed, then this principle would apply to them
as to other local
Page 19 U. S. 429
legislatures, and the felon who should escape out of the fort or
other place in which the felony may have been committed could not
be apprehended by the marshal, but must be demanded 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 warranted
by the Constitution, requires a consideration 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 regarded as a ground or
reversal, in any such case as aforesaid, than such as appears on
the face of the record, and immediately respects the before
mentioned questions of validity or construction of the said
Constitution, treaties,"
&c.
The whole merits of this case, then, consist in the construction
of the Constitution and the act of Congress.
Page 19 U. S. 430
The jurisdiction of the Court, if acknowledged, goes no farther.
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 arguments of great weight against the
application of the act of Congress to such a case as this, 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
opinion that the objections to its jurisdiction are not sustained,
and that the motion ought to be overruled.
Motion denied.
March 2d.
The cause was this day argued on the merits.
Page 19 U. S. 440
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 defence set up under
Page 19 U. S. 441
the act of Congress, has misconstrued that act. It is in these
words:
"The said Corporation shall have full power to authorize 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 sum to be raised in each year shall
not exceed the amount of 10,000 dollars: And provided, also that
the object for which the money is intended to be raised shall be
first submitted to the President of the United States, and shall be
approved of by him."
Two questions arise on this act.
1st. Does it purport to authorize the Corporation 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 affirmative, it will
become necessary to consider the second. If it should be answered
in the negative, it will be unnecessary, and consequently improper,
to pursue any inquiries, which would then be merely speculative,
respecting the power 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, if not necessarily, be exercised
Page 19 U. S. 442
within the city. The subject on which Congress was employed when
framing this act was a local subject; it was not the establishment
of a lottery, 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
delegating to this corporate body powers for these objects, and for
these objects solely. In delegating 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 describing 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.
Without such words, we cannot suppose that Congress designed to
give to the acts of the Corporation 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 transacted elsewhere.
If this would be the reasonable construction of corporate powers
generally, it is more especially 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 operation which was not,
Page 19 U. S. 443
we think, in the contemplation of the legislature, while
incorporating the City of Washington.
To interfere with the penal laws of a State, where they are not
leveled against the legitimate powers of the Union, but have for
their sole object the internal government of the country, is a very
serious measure which Congress cannot be supposed to adopt lightly
or inconsiderately. The motives for it must be serious and weighty.
It would be taken deliberately, and the intention would be clearly
and unequivocally 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 drawing of a lottery imply a power to authorize its
being drawn without the jurisdiction of a Corporation, in a place
where it may be prohibited by law? This, we think, would scarcely
be asserted. And 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 importance 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
Page 19 U. S. 444
States is of importance, 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 Washington, the great metropolis of the
nation, visited 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 it unlawful to buy
that which Congress has made it lawful to sell.
This proposition is not denied, and therefore the validity of a
law punishing a citizen of Virginia for purchasing a ticket in the
City of Washington might well be drawn into question. Such a law
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, we must inquire whether Congress intended
to empower this Corporation to do any act within a State which the
laws of that State might prohibit.
Page 19 U. S. 445
In addition to the very important circumstance that the act
contains no words indicating such intention, and that this
extensive construction is not essential to the execution of the
corporate power, the Court cannot resist the conviction that the
intention ascribed to this act, had it existed, would have been
executed by very different means 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 President 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 provision made for such a state of things, and,
in making 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 lottery emanates from a corporate power. The Corporation may
authorize or not authorize it, and may select the purposes to which
the proceeds 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 coextensive with the
City. It is not probable that
Page 19 U. S. 446
such an agent would be employed in the execution 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 corporate 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 benefitted 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 drawn without the
permission of the President, and that this resource is to be used
only for important 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 improvement to which its profits are
to be applied to be selected by him. Congress has not enlarged the
corporate power by restricting its exercise to cases of which the
President might. approve.
Page 19 U. S. 447
We very readily admit that the act 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
Congress 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 legislature, 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 powers
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 usually made, or the
words in which this particular power is conferred, we arrive at the
same result. The Corporation was merely empowered to authorize the
drawing of lotteries, and the mind of Congress was not directed to
any provision for the sale of the tickets beyond the limits of the
Corporation. 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.
* The plaintiff in error prayed an appeal from the judgment of
the Court of Hustings, but it was refused, on the ground that there
was no higher State tribunal which could take cognizance of the
case.
