Cohens v. Virginia. 6 W.

power of exclusive legislation in some places, and of limited legisla tion 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 if the forms of proceeding were precisely the same, and the court the same, the distinction would disappear.

426]

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 any thing 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 mnrder 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, s. 3,' 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, s. 4, proceeds to direct that the body of the criminal, after execution, may be delivered to a surgeon for dissection, and punishes any person who shall rescue such body during its conveyance from the place of execution to the surgeon to whom it is to be delivered.

* Let these actual provisions of the law, or any other [427] 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

11 Stats. at Large, 113.

Cohens v. Virginia. 6 W.

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 [428] exercised throughout the Union, because the principal power is given to that body as the legislature of the

Union.

So in the same act, s. 6, 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 [* 429 ] other local 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

Cohens v. Virginia. 6 W.

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 of 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. The [*430 ] jurisdiction of the court, if acknowledged, goes no further. This we are required to do without the exercise of jurisdiction.

The counsel for the State of Virginia have, in support of this motion, urged many 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.

The cause was thereupon argued on the merits.

D. B. Ogden, for the plaintiffs in error.

Webster, contrâ.

The Attorney-General, for the plaintiffs in error, in reply.

[*440]

Cohens v. Virginia. 6 W.

MARSHALL, C. J., delivered the opinion of the court.

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 [*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. 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.

1. 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,

2. 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, [*442] if not necessarily, be exercised * within the city. The sub

ject 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

Cohens v. Virginia. 6 W.

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 any thing 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,

* we think, in the contemplation of the legislature, while [*443] incorporating the city of Washington.

To interfere with the penal laws of a State, where they are not levelled 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

* States is of importance, and, therefore, ought to be im- [*444 ] plied.

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