Cohens v. Virginia. 6 W.

court, upon the writ of error, will determine whether or no the act of congress constituted a defence.

The charter of the city of Washington did not authorize the corporation to force the sale of lottery tickets in States whose laws prohibited such sales.

THIS was a writ of error to the quarterly sessions court for the borough of Norfolk, in the State of Virginia, in an indictment against the plaintiffs in error, for vending lottery tickets, contrary to a statute of the State; the session court being the highest court of the State having jurisdiction of the case. In lieu of a special verdict, the parties stated an agreed case, on the record, which found the fact of sale by the defendants, at Norfolk, of tickets in the national lottery, to be drawn at the city of Washington. The act of Virginia prohibiting the sale of all lottery tickets, the charter of the city of Washington, which authorized the drawing of lotteries, for certain purposes, and the fact that the lottery to which the tickets in question belonged was duly authorized under the charter, were set out in the case agreed. And it also expressly raised the question, whether under the acts of congress incorporating the city of Washington, (2 Stats. at Large, 195, 254, 721,) the sale of the tickets charged in the indictment was legal. The sessions court gave judgment against the defendants.

* Barbour, for the defendant in error, moved to dismiss the [* 290 ] writ of error in this case, and stated three grounds upon which he should insist that the court had not jurisdiction: 1. Because of the subject-matter of the controversy, without reference to the parties. 2. That considering the character of one of the parties, if the court could have jurisdiction at all, it must be original, and not appellate. 3. And, finally, that it can take neither original nor appellate jurisdiction.

* Smyth stated, that he should support the motion to dis- [312] miss the writ of error granted in this case, for two causes: 1. Because the constitution gives no jurisdiction to the court in the case. 2. Because the Judiciary Act gives no jurisdiction to the court in this case.

D. B. Ogden and Pinkney, contrà.

[*375]

▪ MARSHALL, C. J., 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.

Cohens v. Virginia. 6 W.

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."

[ * 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:

1. That a State is a defendant.

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

3. 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.

[* 377 ]

The questions presented to the court by the first two 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

Cohens v. Virginia. 6 W.

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.

1. The first question to be considered is, whether the juris- [* 378] diction 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 2d 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 be any exception, it is to be implied against the express words of the article.

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

The counsel for the defendant in error have stated that the cases which arise under the constitution must grow out of those provisions which are capable of self-execution; examples [* 379 ]

Cohens v. Virginia. 6 W.

of which are to be found in the 2d section of the 4th article, and in the 10th section of the first 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 25th section of the Judiciary Act; and we perceive no reason to depart from that con

struction.

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 [* 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 intrusted that power to a tribunal in whose impartiality it confides.

The American States, as well as the American people, have be

Cohens v. Virginia. 6 W.

lieved 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, *the American people, [* 381 ] 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, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to themselves and their posterity."

* With the ample powers confided to this supreme [* 382 ] 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