19 U.S. 264; 5 L. Ed. 257; 1821 U.S. LEXIS 362; 6 Wheat.
264
March 5, 1821, Decided
PRIOR HISTORY: [***1]
THIS
was a writ of error to the Quarterly Session Court for the borough of Norfolk,
in the State of Virginia, under the 25th section of the judiciary act of 1789,
c. 20. it being the highest Court of law or equity of that State having
jurisdiction of the case.
Pleas at the Court House of
Norfolk borough, before the Mayor, Recorder, and Aldermen of the said borough,
on Saturday, the secon 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 impanelled 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.
Whereupon the
regular process of law was awarded [***2] 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 [***3] 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 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,
[***4] 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 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 [***5] 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 any one 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 lay, 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
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 [***6] third
day of May, in the year of our Lord 1802, entitled, An Act, &c. in the words
and Agures 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 members, [***7] 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. Aud 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 [***8] 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.
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, [***9] 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 own
officers, regulate 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 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 [***10] of the same, it shall be in
force in like manner as if he had approved it, unless the City Council, by their
adjournment, prevent its return.
Sec. 7. And be it
further enacted, That the Corporation aforesaid shall have full power and
authority to pass all by-laws and ordinances to prevent and remove nuisances; to
prevent the introduction of contagious diseases within the City; to establish
night watches or patroles, and erect lamps; to regulate the stationing,
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; [***11] to provide 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 Cor oration of the City of Washington: Provided, That the by-laws, or
ordinances of the said Corporation, shall be in no wise obligatory upon the
persons of non-residents of the said City, unless in cases of intentional
violation of the by-laws or 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 [***12] 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 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 [***13] 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 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 [***14] 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 laws of the Corporation, and to give
such compensation to [***15] 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 [***16]
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 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 [***17] day of the election; and shall,
at the time of his election, be a resident of the ward for which he shall be
elected, and possessed of a freehold estate in the said City of Washington, and
shall have been assessed two months preceding the day of election. And every
free white male citizen of lawful age, who shall have resided in the City of
Washington for the space of one year next preceding the day of election, and
shall be a resident of the ward in which he shall offer to vote, and who shall
have been assessed on the books of the Corporation, not less than two months
prior to the day of election, shall be qualified to vote for members to serve in
the said Board of Aldermen and Board of Common Council, and no other person
whatever shall exercise the right of suffrage at such 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 [***18] 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 appointment
until the end of the then ensuing session. He shall have
power [***19] 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,
[***20] 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 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 [***21] 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 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 [***22] 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 news-paper
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: [***23] "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 assessible 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 [***24] 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, 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 kirbstone 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 [***25] 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 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 weitht, 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 [***26] 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 any 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 [***27] walkers, all who 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 [***28]
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 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 [***29]
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, 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, [***30]
tht 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 [***31] right and title; but if no such
payment or tender be made 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 he 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 [***32] 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.
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 [***33] 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 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 [***34] 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.
LAWYERS' EDITION HEADNOTES:
This
court, has constitutionally, appellate jurisdiction under the judiciary act of
1789, ch. 20, s. 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 States, and the decision is against their
validity; or where is drawn in question the validity of a statute of, or an
authority exercised under any state, on the ground of their being repugnant to
the constitution, treaties, or laws of the United States, and the decision is in
favor of such, their validity; or of the constitution, or of a treaty, or
statute of, or commission held under the United States, and the decision is
against the title, right, privilege, or 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
(s. 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.
SYLLABUS: This Court has, constitutionally,
appellate jurisdiction under the judiciary act of 1789, c. 20. s. 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 States, and the decision is against their validity; or where
is drawn in question the validity of a statute of, or an authority exercised
under any State, on the ground of their being repugnant to the constitution,
treaties, or laws of the United States, and the decision is in favour of such,
their validity; or of the constitution, or of a treaty, or statute of, or
commission held under the United States, and the decision is against the title,
right, privilege, or exemption, [***35] 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, (s. 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.
COUNSEL: Mr.
Barbour, for the defendant in error, moved to dismiss the writ of error in this
case, and stated three grounds upon which he should insist that the Court had
not jurisdiction: (1.) Because of the subject matter of the 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. [***36]
1. As to
the first point: it is conceded by all, that the Federal Government is one of
limited powers. This distinguishing trait equally characterises all its
departments; it is with the judicial department only, that the present inquiry
is connected. It is in the 2d section of the 3d article of the constitution,
that we find an enumeration of the objects to which the judicial power of the
Union extends. That part of it which relates to the present discussion,
declares, that "the judicial power shall extend to all cases in law and equity,
arising under this constitution, the laws of the United States, and treaties
made, or which shall be made, under their authority." It is not pretended, that
any treaty has any sort of relation to the present case: before, then, this
Court can take jurisdiction, it must be shown, that this is a case arising
either under the constitution, or a law of the United States. I shall endeavour
to prove, that it does not belong to either description. These two classes of
cases are obviously put in contradistinction to each other; and there will be no
difficulty in showing to the Court the difference in their character. The
constitution contains two [***37] different kinds of provisions; the
one, (if I may use the expression,) self executed, or capable of self execution;
the other, only executory, and requiring legislative enactment to give them
operation; thus, the 2d section of the 4th article, which declares, that "the
citizens of each State shall be entitled to all privileges and immunities of
citizens in the several States;" the 10th section of the 1st article, which
prohibits any State from making any thing but gold and silver coin, a tender in
payment of debts; from passing any law "impairing the obligation of contracts;"
and the prohibition to Congress, in the 9th section, and to the States in the
10th section of the same article, to pass "any bill of attainder, or ex post
facto law," are all examples of the self-executed provisions of the
constitution; by which, I mean to say, that the constitution, in these
instances, is, per se, operative, without the aid of legislation. On the
contrary, the various provisions of the 8th section of the same article, such,
for example, "as the power to establish an uniform system of naturalization, and
uniform laws on the subject of bankruptcy," are executory only; that is, without
an act of [***38] legislation, they have no operative effect.
The cases, then, arising under the constitution, are those
which arise under its self-executed provisions; and those arising under the laws
of the United States, are those which occur under some law, passed in virtue of
the executory provisions of the constitution. If this idea be correct, then this
is not a case arising under the constitution; and it does not correspond with
the other part of the description, that is, it does not arise under a law of the
United States. In the first place, this Court, in the case of Hepburn v. Elzy,
n1 decided, that the District of Columbia was not a State, within the meaning of
the constitution, and that, therefore, a citizen of that District could not
sustain an action against a citizen of Virginia, in the Circuit Court of that
State. Now, it would sound curiously, to call a law passed for a District, not
itself exalted to the dignity of a State, a law of the United States. It would
seem more strange to call a law passed by the Corporation of Washington, for the
local purposes of Washington, a law of the United States, and yet such is the
character of the law under which this case arises; for the
act [***39] of Congress did not itself create the lottery, but
authorized the Corporation of Washington to do it.
n1 2 Cranch, 445.
As to this
sub-legislation, legislative power is a trust which cannot be transferred.
Delegatus non potest delegare. If this can be exercised by substitution, other
legislative powers can also. I would then inquire, whether in execution of the
power "to lay and collect taxes," "to declare war," &c. Congress could
authorize the State legislatures to do these things. It is a misnomer, to call
by the name of a law of the United States, any act passed for the District of
Columbia, though enacted by Congress, without calling in the aid of a
Corporation. It has been well observed by a former member of this Court, that
every citizen in the United States, sustains a two-fold political character, one
in relation to the Federal, the other in relation to the State Governments. To
put the proposition in other words, it may be stated thus: a two-fold system of
legislation pervades the United States; the one of which I will call Federal,
the other municipal. The first belongs by the constitution of the United States
to Congress, and consists of the powers of war, peace, [***40]
commerce, negociation, and those general powers, which make up our external
relations, together with a few powers of an internal kind, which require
uniformity in their operation: the second belongs to the States, and consists of
whatever is not included in the first, embracing particularly every thing
connected with the internal police and economy of the several States. If this
system knew no exception in its operation, the present question would never have
arisen; for no man would ever dream of calling a law of Virginia or Maryland, a
law of the United States. But there are certain portions of territory within the
United States, of which the District of Columbia is one, in which there is no
State government to act: in relation to these, Congress, by the constitution,
exercises not only federal, but municipal legislation also: and as the whole
difficulty in this case has arisen out of this blending together of two
different kinds of legislative power; so, that difficulty will be removed by a
careful attention to the difference in the nature and character of these powers,
and the extent of their operation respectively. Whenever a question arises,
whether a law passed by Congress [***41] is a law of the United
States, we have only to inquire whether it is constitutionally passed in
execution of any of the federal powers: if it be, it is properly a law of the
United States; since the federal powers are co-extensive with the limits of the
United States; and this, though the particular act, may be confined to certain
persons, places or things. Thus, a law establishing federal Courts in a
particular State, is a law of the United States; for though its immediate
operation is upon oen State, yet it is in execution of a power co-extensive with
the United States; but if a law, though passed by Congress, be passed in
execution of a municipal power, as a law to pave the streets of Washington, then
it cannot, in any propriety of language, be called a law of the United States.
It is an axiom in politics, that legislative power has no operation, beyond the
territorial limits under its authority. I do not now speak of the doctrine of
the lex loci; of that comity, by which the different States of the civilized
world, receive the laws of others, as governing in certain cases of contract, or
questions of a civil nature. I speak of the intrinsic energy of the legislative
power, [***42] its operation per se.
If
this principle be true, is there any thing in this case to impair its force? It
is admitted on all hands, that this law was passed in virtue of the power given
by the constitution to exercise exclusive legislation, over such district, not
exceeding ten miles square, as should become the seat of the federal government.
If we look into the history of the country, the debates of the Conventions, or
the declarations of the Federalist, we shall alike arrive at the conclusion,
that this power was given in consequence of an incident which had occurred in
Philadelphia, and the necessity which thence seemed to result, of Congress
deliberating uninterrupted and unawed. The motive, then, for granting this
power, would not lead to an extension of it; still less will the terms; for,
they are as restrictive as could by possibility be used. The district shall not
exceed ten miles square, and as was argued in the Convention of Virginia, may
not exceed one mile: so far from the principle being impaired then, it is
greatly strengthened by the language of this provision. See to what consequences
we should be led by the doctrine, that because this lottery was
authorized [***43] by Congress, therefore, the tickets might be sold
in any State, against its laws, with impunity. The same charter authorizes the
Corporation of Washington to grant licenses to auctioneers and retailers of
spirituous liquors: now, upon the doctrines contended for, what will hinder the
Corporation from granting licenses to persons, to vend goods and liquors in
Virginia, by a Corporation license, contrary to the laws of Virginia? and thus,
greatly impair the revenue which the State raises from these licenses; as it is
said, that a saleable quality is of the essence, and constitutes the only value
of a lottery ticket, and that therefore it is not competent to any State to
abridge the value of that, which was rightfully created by the Legislature of
the Union? Would not the same reasoning justify the holders of these Corporation
licenses, equally to trample upon the laws of the State; lest, for want of a
market, their merchandise and liquors might not be sold, and thus the value of
their license diminished. These are cases, in which the revenue of a State would
be impaired, as well as the laws for the protection of its morals. Such is the
law of Virginia, prohibiting the use of billiard [***44] tables. If
Congress should authorise licenses to be issued, by the Corporation of
Washington, for using them, and if this law have an operation beyond the
territorial limits of the District, then has Virginia lost all power of
regulating the conduct of her own citizens.
The
solution of the whole difficulty lies in this: That though the laws of Congress,
when passed in execution of a federal power, extend over the Union, and being
laws of the United States, are a part of the supreme law of the land: yet, a law
passed like the one in question, in execution of the power of municipal
legislation, extends only so far, as the power under which it was passed -- that
is, to the boundaries of the District; that, therefore, it is no law of the
United States, and consequently not a part of the supreme law of the land. Nor
is there any thing novel in the idea of two powers residing in the same body, at
the same time, and over the same subject, of a different kind. The idea is
familiarly illustrated by cases of ordinary occurrence in the judiciary. For the
same trespass, an action, or indictment, may be brought before the same Court,
and a different judgment pronounced, as one or the other [***45] mode
is pursued. So the same Court has frequently common law and chancery
jurisdiction, and pronounces a different judgment in relation to the same
subject, as they are exercising the one or the other jurisdiction.
Let us look further at the consequences of calling the
laws of the District, laws of the United States. By the sixth article of the
Constitution, laws of the United States made in pursuance of the Constitution,
are declared a part of the supreme law of the land, and the judges in every
State shall be bound thereby, any thing in the laws of their State to the
contrary notwithstanding. If, then, laws of the District be laws of the United
States, within the meaning of the constitution, it will follow, that they may be
carried to the extent of an interference with every department of State
legislation; and whenever they shall so interfere, they are to be considered of
paramount authority. Suppose the law of Virginia to declare a deed for land void
against a purchaser for valuable consideration, without notice, unless recorded
upon the party's acknowledgment, or the evidence of three witnesses. Suppose a
law of the District to dispense with record, or to be satisfied
with [***46] two witnesses.If one citizen should convey to another
citizen of the District, land lying in Virginia, in conformity with the District
law, upon the principle now contended for, the party must recover, in the teeth
of the law of Virginia. It will be admitted, that a law passed, like the one in
question, by one State, might be repelled by another: it will, also, be
admitted, that if Congress had, (as some think they have a right to do, but in
which I do not concur,) established here a local legislature, which had passed
the law in question, its effects might have been repelled from the States by
penal sanctions.
But if it be said, that as the
dominion over the District flows from the same source with every other power
possessed by the government of the Union, as it is executed by the same
Congress, as it was created for the common good, and for universal purposes,
that it must be of equal obligation throughout the Union in its effects, with
any power known to the constitution; from whence it is inferred, that the law in
question can encounter no geographical impediments, but that its march is
through the Union: The answer is, that the federal powers of Congress, in their
execution, [***47] encounter no geographical impediments, because no
limits, short of the boundaries of the Union, are prescribed to them; but the
legislative power over the District, in its execution, does encounter
geographical impediments, because the limits of the District are distinctly
prescribed, as the bound of its extent, and as an insurmountable barrier to its
further march.
It may be said, too, that this case
bears no resemblance to that of one State repelling, by penal sanctions, the
effects of the laws of another; because it is said, one State is no party to the
laws of another; whereas here, the law is its own law, as being represented in
Congress, and thereby contributing to its passage, and capable in part of
effecting its repeal. It will be seen at once, that this principle would prove
too much, and, therefore, that it cannot be a sound one; for if the States are
to acquiesce in this instance, because they are represented in Congress, and
have, therefore, an agency in making and repealing laws, the same reasoning
would justify Congress in legislating beyond their delegated powers; for
example, prescribing a general course of descents. It is obvious, that they
might contribute as much [***48] to the passage and repeal of this
law, as any other, and yet this ground will not be attempted to be sustained.
If, then, they are not bound, because of their representation in Congress, to
acquiesce in the assumption of a power not granted; they are surely as little
bound, upon that ground, to permit a power, confined to ten miles square, to
extend its operation with the limits of the United States.
If, then, the law in question is not a law of the United States, in the
sense of that expression in the constitution, this is not a case arising under
the law of the United States, and, consequently, the jurisdiction of this Court
fails as to the subject matter.
2. My second
proposition is, that if this Court could entertain jurisdiction of the case at
all, it must be original, and not appellate jurisdiction. This has reference to
the character of one of the parties in the present contest. The constitution of
the United States, after having carved out the whole mass of jurisdiction which
it gives to the federal judiciary, and enumerated its several objects, proceeds
in the second clause of the second section of the third article to distribute
that jurisdiction amongst the several [***49] Courts. To the Supreme
Court, it gives original jurisdiction in two classes of cases; to wit, "in all
cases affecting ambassadors, other public ministers and consuls, and those in
which a State shall be a party;" in all the other cases to which the judicial
power of the United States extends, it gives the Supreme Court appellate
jurisdiction. This Court, in the case of Marbury v. Madison, n2 thus expresses
itself in relation to this clause of the constitution: "If Congress remains at
liberty to give this Court appellate jurisdiction, where the constitution has
declared their jurisdiction shall be original; and original jurisdiction, where
the constitution has declared their jurisdiction shall be appellate, the
distribution of jurisdiction made in the constitution, is form without
substance." Again, the Court says, "the plain import of the words seems to be,
that in one class of cases, its jurisdiction is original, not appellate; in the
other, it is appellate, not original;" and accordingly, in that case, which was
an application for a mandamus to the then Secretary of State, to issue
commissions to certain Justices of the Peace in the District of Columbia, the
Court, after distinctly [***50] admitting that the parties had a
right, yet refused to grant the mandamus, upon the ground, that it would be an
exercise of original jurisdiction; that not being one of the cases, in which
that kind of jurisdiction was given them by the constitution, it was not
competent to Congress to give it.
n2 1 Cranch, 174.
It appears, then, from the
constitution, that where a State is a party, this Court has original
jurisdiction: it appears from the opinion of this Court just quoted, that it
excludes appellate jurisdiction. But a State is a party to the present case; it
is a judgment for a penalty inflicted for the violation of a public law; the
prosecution commenced by a presentment of a grand jury, carried on by an
information filed by the attorney for the Commonwealth, and the judgment
rendered in the name of the Commonwealth; and the case has come before this
Court by a writ of error, which is surely appellate jurisdiction. If, then, when
a State is a party, this Court have original jurisdiction; if the grant of
original, exclude appellate jurisdiction; if, as in this case, a State be a
party; and if the jurisdiction now claimed is clearly appellate, then it
follows, as an inevitable [***51] conclusion, that in this case this
Court cannot take jurisdiction in this way, if they could take it at all.
3. My last proposition is, that considering the nature of
this case, and that a State is a party, the judicial power of the United States
does not extend to the case, and that, therefore, this Court cannot take
jurisdiction at all. This is a criminal case, both upon principle and authority.
A crime is defined to be, an act committed or omitted in violation of some
public law commanding or forbidding it. The offence in this case is one of
commission. A prosecution in the name of a State, by information, as this has
been shown to be, to inflict a punishment upon this offence, is, therefore, a
prosecution for a crime; in other words, a criminal case. Upon authority, too,
penal actions are called in the books criminal actions. But if it be a criminal
case, it is conceded, that the Courts of the United States cannot take original
jurisdiction over it -- inasmuch as that right fully belongs to the Courts of
the State whose laws have been violated; and that jurisdiction having once
rightfully attached, they have a right to proceed to judgment; but if they have
no original jurisdiction, [***52] I have shown, in the discussion of
the second point, that they cannot have appellate jurisdiction, and it
consequently follows, that they cannot have jurisdiction at all.
I will now endeavour to show, from general principles, in connection
with the fair construction of the third article of the constitution, that
without reference to the particular character of the case, whether as criminal
or civil, the judicial power of the United States does not extend to it, on
account of the character of one of the parties; in other words, because one of
the parties is a State. It is an axiom in politics, that a sovereign and
independent State is not liable to the suit of any individual, nor amenable to
any judicial power, without its own consent. All the States of this Union were
sovereign and independent, before they became parties to the federal compact:
hence, I infer, that the judicial power of the United States would not have
extended to the States, if it had not been so extended to them, eo nomine, upon
the face of the constitution. But if it can reach them only because it is
expressly given in relation to them, then it can only reach them to the extent
to which it is given. By the original [***53] text of the
constitution, the judicial power of the Union was extended to the following
cases, in which States were parties; to wit, to controversies between two or
more States, between a State and citizens of another State, and between a State
and foreign States, citizens, and subjects. The case of a contest between a
State and one of its own citizens, is not included in this enumeration; and,
consequently, if the principle which I have advanced be a sound one, the
judicial power of the United States does not extend to it; but the uniform
decision of this Court has been, that if a party claim to be a citizen of
another State, it must appear upon the record. As that does not appear upon the
record in this case, I am authorized to say, that the plaintiffs in error are
citizens of Virginia: then it is the simple case of a contest between a State
and one of its own citizens, which does not fall within the pale of federal
judicial power.
It is said, however, that the judicial
power is declared by the Constitution, to extend to all cases in law or equity,
arising under this Constitution, the laws of the United States, and treaties
made, &c.; and that by reason of the expression "all [***54]
cases," where the question is once mentioned in the Constitution, the federal
judicial power attaches upon the case on account of the subject matter, without
reference to the parties. Notwithstanding the latitude of this expression, it
will be seen upon inquiry, that in the nature of things, there must be some
limitation imposed upon this provision, which the gentlemen seem to consider
unlimited. In the first place there are questions arising, or which might arise
under the Constitution, which the forms of the Constitution do not submit to
judicial cognizance. Suppose, for example, a State were to grant a title of
nobility, how could that be brought before a judicial tribunal, so as to render
any effectual judgment? If it were an office of profit, it might, perhaps, be
said, an information in the nature of a quo warranto would lie; but I ask
whether that would lie, in the case which I have stated, or whether an effectual
judgment could be rendered? It is a title, a name which would still remain,
after your judgment had denounced it as unconstitutional. Where a quo warranto
lies, in relation to an office, the judgment of ouster is followed by practical
and effectual consequences. [***55] Again; suppose a State should
keep troops or ships of war, in time of peace, or should engage in war, when
neither actually invaded, nor in imminent danger. Here would be alarming
violations of the constitution, assailing too directly the federal powers; it
would be a most serious question arising under the constitution, and yet clearly
such a case as this does not belong to the judicial tribunal.
If it be said that the opposite counsel mean all cases in their nature
of a judicial character, still I shall be able to show, that broad as this
expression is, it does not reach all these. It will be remembered by the Court,
that the words are, not all questions, but all cases. Although, therefore, a
question may arise, yet before there can be a case, there must be parties over
whom the Court can take jurisdiction; and if there be no such parties, the Court
cannot act upon the subject, though the question may arise, though it may be
clearly of a judicial nature, and though there may be the clearest violation of
the constitution. By the 11th article of the amendments to the constitution, it
is declared, that "the judicial power of the United States shall not be
construed to extend to [***56] any 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." Now, suppose that a State should,
without the consent of Congress, lay a duty on tonnage, which should be paid by
a citizen of another State; suppose, too, that a State should cause the lands of
a British subject to be escheated, contrary to the ninth article of the treaty
of 1794, upon the ground of alienage; or debts due to a British subject from
individuals of the United States, or money or shares belonging to him, in the
public funds or banks, to be confiscated, contrary to the tenth article of the
same treaty, and deposite the proceeds in the public chest: It will be agreed on
all hands, that the first is a palpable violation of the federal constitution,
and the two others as palpable violations of the solemn stipulations of a
treaty; and that, therefore, the first presents a question arising under the
constitution, and the others one arising under a treaty; yet, will any man
contend that the citizen of another State, in the first case, or the subject of
the foreign State, in the others, could bring the offending
State [***57] before the federal Court, for the purpose of redressing
their several wrongs? It will not be pretended; and why not? for the reason
which I have given, that one of the parties in the cases supposed being a State,
and the amendment referred to having declared, that a State should not be
amenable to the suit of a citizen of another State, or the subject of a foreign
State; although the questions have arisen, the cases have not; that is, the
Court cannot take judicial cognizance of the questions, because it cannot bring
one of the parties interested in litigating it before them. Let us now suppose,
that a State should collect a tonnage duty from one of its own citizens; could
that citizen bring his own State before a federal Court? The words of the 11th
amendment apply to the case of a citizen of another State, or the citizen or
subject of a foreign State; but the reason is, that it was only to them that the
privilege of being parties in a controversy with a State, had been extended in
the text of the constitution. It was only from them, therefore, that it was
necessary to take away that privilege; but, when from those to whom a privilege
had been given, that privilege had been taken [***58] away, they
surely then occupy the same ground, with those to whom it had never been given.
When I speak here of the right of these persons under the constitution of suing
a State, I speak of the interpretation of this Court, particularly in the case
of Chisholm's ex'rs. v. Georgia, in which the Court decided, that a State might
be made a party defendant. It was that decision which produced the 11th
amendment. If I am right in the idea, that since that amendment, no matter what
the character of the question, this Court could not take jurisdiction in favour
of the citizen of another State, or subject of a foreign State, against a State
as defendant, it is equally true, that without the aid of that amendment, it
never could take jurisdiction in favour of a citizen against his own State;
because that is not one of the cases, in which the federal judicial power
extends to States, and because in this case, as in the others, although a
question has arisen under the constitution, &c. a case has not arisen,
inasmuch as you cannot bring one of the parties before you. That the
constitution never contemplated giving jurisdiction to the federal Courts in
cases between a State and its own citizens, [***59] will appear
manifestly, from the only reason assigned for giving it in favour of the
citizens of other States, or foreign citizens. That reason was an insufficient
one, even for the purpose for which it was assigned; it being, that as against
foreigners and the citizens of other States, State Courts might not be impartial
where their States were parties: but such as it is, it never could apply as
between a State and its own citizens, whom they were under every moral and
political obligation to protect, and towards whom, therefore, there could be no
apprehension of a want of impartiality.
Upon a full
view of this aspect of the subject, the fair construction of the constitution
will be found to be this -- that in carving out the general mas of jurisdiction,
it had reference only to the natural and habitual parties to controversies, who
are either natural persons, or Corporations, short of political societies, not
to States; that in relation to these, they could not have been made parties at
all, but by express provision, and that, therefore, the extent to which they can
be so made, is limited by the extent of that provision. It will be conceded,
that the United States cannot be sued: [***60] and why? Because it
is incompatible with their sovereignty. The States, before the adoption of the
federal constitution, were also sovereign; and the same principle applies,
unless it can be shown that they have surrendered this attribute of sovereignty;
which I have endeavoured to show they have not.
Upon my
construction, there is consistency throughout the constitution.According to it,
a State can never be subjected, at the suit of any individual, to any judicial
tribunal, without its own consent; for it can never be made a party defendant in
any case, or by any party, except in the cases between it, and another State, or
a foreign State. If it be a party plaintiff, I have already endeavoured to prove
that this Court could never take appellate, but only original jurisdiction, and
that therefore as between a State and any individual, that State never could be
placed in the attitude of a defendant.This idea is further sustained by
reference to the history of the country. From that we learn, that the great and
radical defect in the first confederacy was, that its powers operated upon
political societies or States, not upon individuals.The characteristic
difference between that [***61] and the present government is, that
the latter operates upon the citizens. Take, for example, the power of taxation,
which addresses itself directly to the people of the United States in the shape
of an individual demand -- instead of a requisition upon the States, for their
respective quotas.
It has been said, that if this
doctrine prevail, the federal government will be prostrated at the feet of the
States, and that the various limitations and prohibitions imposed upon the
States by the constitution, will be a dead letter, upon the face of that
instrument, for the want of some power to enforce them. Let it be remembered
that the several State legislatures and judiciaries, are all bound by the solemn
obligation of an oath, to support the federal constitution; that to suppose a
State legislature capable of wilfully legislating in violation of that
constitution, if it is to suppose that it is so lost to the moral sense as to be
guilty of perjury; a supposition which, thank God! the character of your people
forbids us to make, nor can it be realized, until we shall have reached a
maturity of corruption, from which I trust we are separated by a long tract of
future time. But if the [***62] legislatures could be supposed to be
so blind to the sacred dictates of conscience and of duty, as to pass such a
law, we have another safeguard in the character of the State judiciaries. Before
effect could be given to it, it must be supposed that the sanctity of the
judicial ermine was also polluted. To him, who can for a moment entertain this
unjust and injurious apprehension, I have nothing to say, but to ask him to look
at the talents, the virtues, and integrity, which adorn and illustrate the
benches of our State Courts; and I will add, that according to the doctrine
maintained by this Court, in the case of Hunter v. Martin, n3 the judgments of
the State Courts, in questions arising under the constitution, between
individuals, would be subject to the appellate jurisdiction of this Court. n4
But if the States are under limitations by the constitution, so also is the
federal government. If the State legislatures may be supposed possibly capable
of violating that instrument, and the State judiciaries disposed to sustain them
in that violation, it may as well be supposed, that the federal legislature may
be thus disposed, and the federal judiciary prepared to sustain them.
n3 1 Wheat. Rep. 305.
n4 Mr. Barbour observed, in reply, that he wished to be
distinctly understood, as not yielding his assent to the doctrine of Hunter v.
Martin. On the contrary, that he decidedly concurred with the Court of Appeals
of Virginia, that the appellate jurisdiction of the Supreme Court was in
relation to inferior federal Courts, not State Courts. But, as that question had
been solemnly decided otherwise by this Court, with the argument of the Court of
Appeals of Virginia before them, he had forborne to discuss it; he had referred
to it, however, because, whilst this Court acted upon the principle of that
case, there was a controlling power, on the part of the federal, over the State
judiciaries, in practical operation. [***63]
Whenever the States shall be determined to destroy the federal
government, they will not find it necessary to act, and to act in violation of
the constitution.They can quietly and effectually accomplish the purpose by not
acting. Upon the State legislatures it depends to appoint the Senators and
Presidential electors, or to provide for their election. Let them merely not act
in these particulars; the executive department, and part of the legislative,
ceases to exist, and the federal government thus perishes by a sin of omission,
not of commission. But I will endeavour in another way to show, that whenever
the States shall have reached that point, either of corruption, or hostility, to
the federal government, which they must arrive at before any of the extreme
supposed violations of the constitution could occur, the jurisdiction now
claimed for this Court would be utterly inadequate as a remedy. Let us suppose
one of the most glaring violations of the constitution; a bill of attainder or
ex post facto law, for example, passed by a State; and that the State judiciary
proceeds to conviction of the party prosecuted. Let us suppose, that this Court,
claiming an appellate jurisdiction, [***64] forbids the execution of
the party; but the State Court orders its judgment to be executed, and it is
executed, by putting to death the prisoner. His life cannot be recalled: that is
beyond the reach of human power; can you prosecute the judges or the officer for
murder? It will not be contended Of what avail, then, the jurisdiction contended
for, even for the purpose for which it is claimed? I answer, of none at all.
Mr. Smyth stated, that he should support the motion to
dismiss the writ of error granted in this case, for two causes: (1.) Because the
constitution gives no jurisdiction to the Court in the case. (2.) Because the
judiciary act gives no jurisdiction to the Court in this case.
1. It is a question undecided, whether the appellate jurisdiction of
this Court, as declared by the constitution, does or does not extend to this
case. If it was in all respects similar to the case of Hunter v. Martin, n5
adjudged in this Court, I should contend, that the constitutional question of
jurisdiction should not be regarded as settled. In that case, the counsel
conceded the constitutional question, and no argument has been offered to this
Court in support of the jurisdiction of [***65] the State judiciary.
One of the learned Judges n6 of this Court said, in that case, when speaking of
the claim of power in this Court to exercise appellate jurisdiction over the
State tribunals, "this is a momentous question, and one on which I shall reserve
myself uncommitted, for each particular case as it shall occur." And the Court
said, that "in several cases, which have been formerly adjuded in this Court,
the same point was argued by counsel, and expressly overruled." But the case now
before the Court, is very different from that of Martin v. Hunter. This is a
writ of error to revise a judgment given in a criminal prosecution, and in a
case wherein a State was a party.
n5 1 Wheat. Rep. 305.
n6 Mr. Justice
JOHNSON.
The government of the United States being one
of enumerated powers, it is not a sufficient justification of the authority
claimed, to say that there is nothing in the constitution that prohibits the
federal judiciary to take cognizance, by way of appeal, of cases decided in the
State Courts. All the powers not granted are retained by the States; judicial
power is granted; but it is federal judicial power that is granted, and not
State judicial power. This [***66] grant neither impairs the
authority of the State Courts in suits remaining within their jurisdiction, nor
makes them inferior Courts of the United States. The government of the United
States operates directly upon the people, and not at all upon the State
governments, or the several branches thereof. The State governments are not
subject to this government. The people are subject to both governments. This
government is in no respect federal in its operation, although it is, in some
respects, federal in its organization. Power has, indeed, been vested, by the
constitution, in the State legislatures, to pass certain laws necessary to
organize and continue the existence of the general government, and this power
Congress may in part assume.They may prescribe the time, place, and manner, of
holding elections of representatives; the time and manner of choosing Senators
by the State legislatures; and the time of choosing electors of a President.
This power is expressly given by the constitution; it was necessary Congress
should possess it, for self-preservation; and, even in these cases, they have no
power to prescribe to the State legislature a legislative act.This government
cannot [***67] prescribe an executive act to the executive of a
State, a legislative act to the legislature of a State, or (as I contend) a
judicial act to the judiciary of a State.
If the
constitution does not confer on the judiciary of the United States the appellate
jurisdiction claimed, it is not enough that the act of Congress may purport to
confer it. The framers of the judiciary act manifested a distrust of their
authority; they seem to have foreseen that the State Courts would refuse to give
judgment according to the opinions of the Supreme Court. The case decided in the
State Court was not a case in law arising under the laws of the United States.
It was a prosecution under a law of the State. Should a mandate issue in this
case, and obedience be refused, this Court will give judgment on a prosecution
for violating State laws. If the case decided in the State Court be regarded as
a case in which a State was a party, the Supreme Court has, by the constitution,
original, and not appellate jurisdiction. The appellate jurisdiction of the
Supreme Court is only conferred in cases other than those whereof the Supreme
Court has original jurisdiction. Who has original jurisdiction of
those [***68] other cases? The inferior federal Courts. Some of those
other cases are those of admiralty and maritime jurisdiction, of which,
certainly, it was not intended that the original jurisdiction should be in the
State Courts.
If this writ of error be considered to be
a suit in law, this Court has no jurisdiction: for it is prosecuted against a
State; and, by the 11th amendment to the constitution, no suit in law can be
prosecuted by foreigners or citizens of another State against one of the United
States. The amendment prohibits such suits commenced or prosecuted against a
State. This seems expressly to extend to this writ of error, which, although not
a suit in law commenced against a State, is a suit in law prosecuted against a
State. This amendment, denying to foreigners and citizens of other States the
right to prosecute a suit against a State, and being silent as to citizens of
the same State, affords a proof that the federal Courts never had jurisdiction
of a suit between a citizen and the State whereof he is a citizen: for it cannot
be presumed, that a right to prosecute a suit against a State would be taken
from a foreigner or citizen of another State, and left to
citizens [***69] of the same State. A release of all suits is a
release of a writ of error; n7 and, consequently, a writ of error is "a suit in
law," and cannot be prosecuted against a State.
n7 Latch. 110. 2 Bac. Abr. 497. 1 Roll. Abr. 788.
The appellate jurisdiction conferred by the constitution
on the Supreme Court, is merely authority to revise the decisions of inferior
Courts of the United States. Where the Supreme Court have not original
jurisdiction, they have, by the constitution, appellate jurisdiction as to law
and fact. Could it have been intended to confer a power to re-examine decisions
in the State Courts; to try again the facts tried in those Courts, and this even
in criminal prosecutions? Surely not. Appellate jurisdiction signifies judicial
power over the decisions of the inferior tribunals of the same sovereignty.
Congress have power to "constitute" such tribunals; and it is made their duty to
"ordain and establish" such. The framers of the constitution intended to create
a new judiciary, to exercise the judicial power of a new government, unconnected
with the judiciaries of the several States. Congress is not authorized to make
the Supreme Court, or any other Court [***70] of a State, an inferior
Court.They do not "constitute" such a Court; they do not "ordain and establish
it." The judges cannot be impeached before the Senate of the United States; they
receive no compensation for their services from the United States; and,
consequently, cannot be required to render any services to the United States.
The inferior Courts, spoken of in the constitution, are manifestly to be held by
federal judges. The judicial power to be exercised, is the judicial power of the
United States; the errors to be corrected are those of that judicial power; and
there can be no inferior Courts exercising the judicial power of the United
States, other than those constituted, ordained, and established by Congress.
The Supreme Court has appellate jurisdiction in cases to
which the judicial power of the United States shall extend; but unless the
original jurisdiction has extended to the case, the appellate jurisdiction can
never reach it. The original jurisdiction alone is qualified to lay hold of it.
If it shall be deemed proper to extend the judicial power to all the cases
enumerated, the original jurisdiction must be thus extended.The Court exercising
appellate jurisdiction, [***71] must not only have jurisdiction over
such a cause, and such parties, but it must have jurisdiction over the tribunal
before which the cause has been depending. Judicial power, includes power to
decide, and power to enforce the decision.This Court has rather disclaimed power
to enforce its mandate to the Supreme Court of a State. If you have not power to
compel State tribunals to obey your decisions, you have no appellate
jurisdiction in cases depending before them. Suppose it should be found
necessary to direct a new trial in a cause removed from a State Court, and that
the State Court refuses to obey your mandate; where shall the new trial be had?
If you have appellate jurisdiction in a case decided by a State Court, you must
have power to make your decisions a part of the record of the State Court. The
Constitution provides that full faith and credit shall be given in each State,
to the judicial proceedings of every other State. A plaintiff recovers in the
Courts of Virginia judgment for a sum of money; you reverse the judgment; but,
the State Court does not record your decision; the plaintiff obtains a copy of
the record of the judicial proceedings of the State, and
presents [***72] them as evidence before the Court of another State;
he must recover, notwithstanding your judgment, which has not been made a part
of that record, to which full faith and credit is to be given.
To give jurisdiction over the State Courts, it is not sufficient that
the constitution has said that the Supreme Court shall have appellate
jurisdiction; for that will be understood to signify, jurisdiction over inferior
federal Courts. To confer the jurisdiction claimed, the constitution should have
said, that the judicial power of the United States shall have appellate
jurisdiction over the judicial power of the several States. If it had been
intended to give appellate jurisdiction over the State Courts, the proper
expressions would have been used. There is not a word in the constitution that
goes to set up the federal judiciary above the state judiciary. The state
judiciary is not once named. The subjects spoken of are the judicial power of
the United States; the supreme and inferior Courts of the United States; and the
original and appellate jurisdiction of the Supreme Court. Appellate jurisdiction
is not granted to the judicial power of the United States. It is granted to the
Supreme [***73] Court of the United States. Federal judicial power is
authorized to correct the errors of federal judicial power. I contend, that in
no case can the federal Courts revise the decisions of the State Courts; no such
power is expressly given by the constitution: and can it be believed that it was
meant that the greatest, the most consolidating of all the powers of this
Government, should pass by an unnecessary implication?The States have granted to
the United States power to pronounce their own judgment in certain cases; but
they have not granted the State Courts to the federal Government; nor power to
revise State decisions.
The power of the House of Lords
to hear appeals from the highest Court in Scotland, has been mentioned as a
precedent for the exercise of such a power as is claimed for this Court; but the
cases are by no means similar: Scotland is consolidated with England under the
same executive and legislature; and, therefore, ought to be subject, in the last
resort, to the same judicial tribunal. If the States had no executive except the
President, and no legislature except Congress, the cases would have some
resemblance.
If you correct the errors of the Courts of
Virginia, [***74] you either make them Courts of the United States,
or you make the Supreme Court of the United States a part of the judiciary of
Virginia. The United States can only pronounce the judgment of the United
States. Virginia alone can pronounce the judgment of Virginia. Consequently,
none but a Virginia Court can correct the errors of a Virginia Court.
There is nothing in the constitution that indicates a
design to make the State judiciaries subordinate to the judiciary of the United
States. The argument that Congress must establish a Supreme Court, and might
have omitted to establish inferior Courts, thereby depriving the Supreme Court
of its appellate jurisdiction, unless it should be exercised over the State
Courts, seems to be without foundation. The judicial power of the United States
is vested in the Supreme Court, and inferior Courts; the judges of the inferior
Courts shall receive a compensation. The possibility of Congress omitting to
perform a duty positively enjoined on them, cannot change the constitution, or
affect the jurisdiction of the State Courts.
The
federal judiciary and State judiciaries possess concurrent power in certain
cases; but no authority is conferred [***75] on the one to reverse
the decisions of the other. The State Courts retain a concurrent authority in
cases wherein they had jurisdiction previous to the adoption of the
constitution, unless it is taken away by the operation of that instrument. I say
a concurrent authority, not a subordinate authority. The power of the judiciary
of the United States is either exclusive or concurrent, but not paramount power.
And where it is concurrent only, then, whichsoever judiciary gets possession of
the case, should proceed to final judgment, from which there should be no
appeal. If it shall be established that this Court has appellate jurisdiction
over the State Courts in all cases enumerated in the third article of the
constitution, a complete consolidation of the States, so far as respects
judicial power, is produced; and it is presumed that it was not the intention of
the people to consolidate the judicial systems of the States, with that of the
United States. It has been said, that the Courts of the United States can revise
the proceedings of the executive and legislative authorities of the States, and,
if they are found to be contrary to the constitution, may declare them to be of
no [***76] legal validity; and that the exercise of the same right
over judicial tribunals, is not a higher or more dangerous act of sovereign
power. n8 This conclusion seems to be erroneous. When the federal Courts declare
an act of a State legislature unconstitutional, or an act of the State executive
unlawful, they exercise no higher authority than the State Courts exercise, who
will not only declare an act of the State legislature, but even an act of
Congress, unconstitutional and void. This only proves that the federal and State
judiciaries have equally authority to judge of the validity of the acts of the
other branches of both governments, and has no tendency whatever to establish
the claim set up by federal judicial power, of supremacy over State judicial
power.
n8 1 Wheat. Rep.
344.
This writ of error brings up the judgment rendered
in a State Court, in a criminal prosecution. Every government must possess
within itself, and independently, the power to punish offences against its laws.
It would degrade the State governments, and devest them of every pretension to
sovereignty, to determine that they cannot punish offences without their
decisions being liable to a re-examination, [***77] both as to law
and fact, (if Congress please,) before the Supreme Court of the United States.
The claim set up would make the States dependent for the execution of their
criminal codes, upon the federal judiciciary. The cases "in which a State shall
be a party," of which the Supreme Court may take cognizance, are civil
controversies. This seems obvious; because, to the Supreme Court is granted
original jurisdiction of them. And it will not be contended that the Supreme
Court shall have original jurisdiction of prosecutions carried on by a State,
against those who violate its laws. If "cases in law and equity, arising under
the laws of the United States," comprehend criminal prosecutions in the State
Courts, then every prosecution against a citizen of the State, in which he may
claim some exemption under an act of Congress or a treaty, however unfounded the
claim, may be re-examined, both as to law and fact, (if Congress please,) in the
Supreme Court. And if "controversies" include such prosecutions, then every
prosecution against an alien, or citizen of another State, may be so
re-examined, whether he claim such exemption or not. Can this Court bring up a
capital case, wherein [***78] some exemption under a federal law is
claimed by a prisoner in a State Court? Would an appeal lie, (should Congress so
direct,) from a jury? It would not, even if the trial was had in a federal
Court; for the accused has a right to a trial by a jury in the State and
district wherein the crime shall be charged to have been committed. In all cases
within the appellate jurisdiction of the Supreme Court, that jurisdiction may
extend to the law and the fact. But such jurisdiction, as to the fact, cannot
extend to criminal cases; consequently, it was not intended that the appellate
jurisdiction should extend to criminal cases; and, therefore, the Supreme Court
have no appellate jurisdiction in criminal cases. Can, then, the Court take
jurisdiction in this case, which was a criminal prosecution, founded on the
presentment of a grand jury? Surely they cannot. This case was not a qui tam
action, which is regarded as a civil suit. n9 It was, both in form and
substance, a criminal prosecution. And it has been declared by a judge of this
Court, that "the Courts of the United States are vested with no power to
scrutinize into the proceedings of the State Courts, in criminal cases."
n10 [***79]
n9
Cowp. 382.
n10 1 Wheat. Rep. 377.
That which is fixed by the constitution, Congress have no power to
change. The jurisdiction of the State Courts is fixed by the constitution. It is
not a subject for congressional legislation. The people of Virginia, in adopting
the constitution of the United States, had power to diminish the jurisdiction of
the State judiciary: but Congress have no power over it; they can neither
diminish nor extend it; they can neither take from the State tribunals one
cause, or give them one to decide. As they cannot impose on the State Courts any
duties, so neither can they take from them any powers. Congress can neither add
to or diminish the legislative power, the executive power, or the judicial power
of a State, as fixed by the constitution. Congress may pass all laws necessary
and proper to execute that power which is vested by the constitution in the
judiciary of the United States; but this does not sanction a violation of the
authority of the State Courts. None can enlarge or abridge the jurisdiction of
the judiciary of Virginia, except the people of Virginia, or the legislature of
that State. As was the jurisdiction of the State judiciary [***80] on
the 4th day of March, 1789, so it stands at this day, unless altered by the
State. If on that day the States retained jurisdiction of most of the cases
enumerated in the third article of the constitution, that jurisdiction must have
been left to them by the constitution, and cannot be taken from them by
Congress. The power either of a State legislature or a State judiciary, cannot
depend on the use of, or neglect to use, a power, by Congress. Such State power
is fixed by the constitution; the same to day as to-morrow, however Congress may
legislate.
The judicial power of the United States is
conferred by the constitution, and Congress cannot add to that power. Congress
may distribute the federal judicial power among the federal Courts, so far as
the distribution has not been made by the constitution. If the constitution does
not confer on this Court, or on the federal judiciary, the power sought to be
exercised, it is in vain that the act of Congress purports to confer it. And
where the constitution confers original jurisdiction, (as in cases where a State
is a party,) Congress cannot change it into appellate jurisdiction. The extent
of the judicial power of the United States [***81] being fixed by the
constitution, it cannot be made exclusive or concurrent, at the will of
Congress. They cannot decide whether it is exclusive of the State Courts or not;
for that is a judicial question, arising under the constitution. If the judicial
power of the United States is exclusive, Congress cannot communicate a part of
it to the State Courts, giving to the federal Courts appellate jurisdiction over
them. If by the constitution the State judiciary has concurrent jurisdiction,
Congress cannot grant to the federal Courts an appellate jurisdiction over the
exercise of such concurrent power. The state judiciary cannot have independent
or subordinate power, at the will and pleasure of Congress.
The State judiciary have concurrent jurisdiction, by the constitution,
over all the cases enumerated in the third article of the constitution, except,
1. Prosecutions for violating federal laws; 2. Cases of admiralty and maritime
jurisdiction; and, 3. Cases affecting ambassadors, other public ministers, and
consuls. No government can execute the criminal laws of another government. The
States have parted with exterior sovereignty. As they cannot make treaties,
perhaps they have [***82] not jurisdiction in the case of ministers
sent to the federal government; as they cannot make war and peace, regulate
commerce, define and punish piracies and offences on the high seas, and against
the law of nations, or make rules concerning captures on the water, perhaps they
have no admiralty jurisdiction. The jurisdiction of the State Courts over civil
causes, arising under the constitution, laws, and treaties, seems to me to be
unquestionable. The State judges are sworn to support the constitution, which
declares them bound by the constitution, laws, and treaties.This was useless,
unless they have jurisdiction of causes arising under the constitution, laws,
and treaties, which are equally supreme law to the State Courts as to the
federal Courts. The State judges are bound by oath to obey the constitutional
acts of Congress; but they are not so bound to obey the decisions of the federal
Courts: the constitution and laws of the United States are supreme; but the
several branches of the government of the United States have no supremacy over
the corresponding branches of the State governments.
The jurisdiction of the State Courts is admitted by Congress, in the
judiciary act: [***83] for, by an odious provision therein, which
does not seem to be impartial, the decision of the State Court, if given in
favour of him who claims under federal law, is final and conclusive. Thus, the
State Courts have acknowledged jurisdiction; and if that jurisdiction is
constitutional, Congress cannot control it.
Congress
cannot authorize the Supreme Court to exercise appellate jurisdiction over the
decisions of the State Courts, unless they have legislative power over those
Courts. Can Congress give an appeal from a federal District Court to a State
Court of appeal? I presume it will be admitted that they cannot. And why can
they not? Because they have no power over the State Court. And if they cannot
give an appeal to that Court, they cannot give an appeal from that Court.
The constitution provides, that the judicial power of the
United States shall "extend to" certain enumerated cases. These words signify
plainly, that the federal Courts shall have jurisdiction in those cases; but
this does not imply exclusive jurisdiction, except in those cases where the
jurisdiction of the State Courts would be contrary to the necessary effect of
the provisions of the constitution. Civil [***84] suits, arising
under the laws of the United States, may be brought and finally determined in
the Courts of foreign nations; and, consequently, may be brought and finally
determined in the State Courts.
The judiciary of every
government must judge of its own jurisdiction. The federal judiciary and the
State judiciary may each determine that it has, or that it has not, jurisdiction
of the case brought before it: but neither can withdraw a case from the
jurisdiction of the other. The question, whether a State Court has jurisdiction
or not, is a judicial question, to be settled by the State judiciary, and not by
an act of Congress, nor by the judgment of the Supreme Court of the United
States. Shall the States be denied the power of judging of their own laws? As
their legislation is subject to no negative so their judgment is subject to no
appeal. Sovereignty consists essentially in the power to legislate, judge of,
and execute laws. The States are as properly sovereign now as they were under
the confederacy; and we have their united declaration that they then,
individually, retained their sovereignty, freedom, and independence. The
constitution recognizes the sovereignty of the [***85] States: for it
admits, that treason may be committed against them. They would not be entitled
to the appellation of "States" if they were not sovereign.
Although the State Courts should maintain a concurrent jurisdiction
with the federal Courts, yet foreigners would have what, before the adoption of
the constitution they had not, a choice of tribunals, before which to bring
their actions; and the State judges are now bound by treaties as supreme law. If
an alien plaintiff sues in the State Courts, he ought to be bound by their
decision; and if an alien is sued in a State Court, he ought to be bound by the
decision of the State in which he resides or sojourns, which protects him, to
which he owes a temporary allagiance, and to whose laws he should yield
obedience. The people could not have intended to give to strangers a double
chance to recover, while citizens should be held bound by the first decision;
that the citizen should be bound by the judgment of the State alone, while the
stranger should not be bound but by the judgment of the State, and also of the
United States. A statute contrary to reason, is void. An act of Congress which
should violate the principles of natural [***86] justice, should also
be deemed void. It is worthy of consideration, whether this clause in the
judiciary act, which grants an appeal to one party, and denies it to the other,
is not void, as being partial and unjust. If, in any case brought before them,
the State Courts shall not have jurisdiction, the defendant may plead to the
jurisdiction, and the Supreme Court of the State will finally decide the point.
If this is not a sufficient security for justice, as I apprehend it is, an
amendment to the constitution may provide another remedy. If the defendant
submits to the jurisdiction of the State Court, and takes a chance of a fair
trial, it is reasonable that he should be bound by the result.
As I deny to this Court authority to remove, by writ of error, a cause
from a State Court, so I likewise deny the authority of this Court to remove,
before judgment, from a State Court, a suit brought therein. It will be equally
an invasion of the jurisdiction of the State Court, although less offensive in
form, than a removal after judgment has been rendered. Congress can neither
regulate the State Courts, or touch them by regulation.
Let the Supreme Court declare (for it is a judicial [***87]
question) what cases are within the exclusive jurisdiction of the federal
Courts, by the constitution; and let Congress pass the necessary and proper laws
for carrying that power into effect. Although I do not admit that the State
Courts would be absolutely bound by such a declaration, yet I have no doubt that
the State Courts would acquiesce. It is not for jurisdiction over certain cases
that the State Courts contend. It is for independence in the exercise of the
jurisdiction that is left to them by the constitution.
2. Does the 25th section of the judiciary act comprehend this case, so
that the Court may take jurisdiction thereof?
In this
case the construction of a statute of the United States is said to have been
drawn in question, and the decision in the State Court was against the exemption
claimed by the defendant in that Court. This Court has no jurisdiction, if it
shall appear that the defendant really had no exemption to set up in the State
Court, under a statute of the United States. If the act of Congress has no
application, no bearing on the case, the Court has no jurisdiction. n11 The
parties cannot, by making an act of Congress, which does not affect the cause,
[***88] a part of the record, give this Court jurisdiction.
This Court have said, that "the sovereignty of a State in the exercise
of its legislation, is not to be impaired, unless it be clear that it has
transcended its legitimate authority; nor ought any power to be sought, much
less to be adjudged, in favour of the United States, unless it be clearly within
the reach of their constitutional charter." n12 This Court have also said, that
"the sovereign powers vested in the State governments by their respective
constitutions, remained unaltered and unimpaired, except so far as they were
granted to the government of the United States." n13 The State legislatures
retain the powers not granted, and not repugnant to the exercise of the powers
granted to Congress; and it is not denied, that the legislature of Virginia
possessed, previous to the passage of the act of Congress for incorporating the
city of Washington, authority to prohibit the sale of lottery tickets in
Virginia. That legislature still possesses the power, unless the exercise
thereof obstructs some means adopted by Congress for executing
their [***89] delegated powers.
n12 5 Wheat. Rep. 48.
n13 1
Wheat. Rep. 325.
Actions are lawful or criminal, as the
laws of the land determine. Whether an action done in Virginia is lawful or
criminal, depends on the laws of that State, unless the action has been
authorized or prohibited by Congress in carrying into execution some power
granted to them, or the power of some department or officer of the government.
The State governments are charged with the police of the States. They,
considering certain acts as having a demoralizing tendency, have prohibited
them. Shall Congress authorize those very acts to be done within the body of a
State?
So entirely is the police of a State to be
regulated by its own laws, that if Congress taxed licenses to sell lottery
tickets, the payment of the tax would not confer on him who paid it, any
authority to sell tickets contrary to the laws of a State. Congress imposed a
tax on licenses to sell spirituous liquors by retail; but that did not prevent
the State governments from regarding tippling houses as nuisances, and punishing
those retailers of spirits who were not licensed tavern keepers. The license is
grantable by the State; when granted, the [***90] federal government
may tax it; but they have no power to grant it. The police belongs to the State
government; and the federal government cannot, by the power of taxation,
interfere with the police, so as to legalize any act which a State prohibits.
It is said that a lottery ticket owes it value to its
saleable quality. It is true that the saleability of the ticket by the managers
is essential to make the lottery of value to the corporation: But, those sales
may be made in Washington. And, if they cannot, must the constitution yield to a
lottery? The proprietor of property has not a right every where to dispose of it
as he please. A man may own poison, but he must not sell it as a medicine. He
may own money; but he may not, in Virginia, part with it at public gaming. He
may come to Washington and purchase a lottery ticket; but if he takes it to
Virginia he must not sell it there. A lottery ticket is a chose in action, and
not assignable by the common law. The State laws determine whether bonds, bills,
notes, &c. are assignable not. Spirituous liquors are property; but they
cannot be sold by retail, without the license of the State government.
The act of Congress under which [***91] this
lottery has been authorized, is not an act passed in the execution of any of
those specific powers which Congress may exercise over the States. The acts of
Congress must be passed in pursuance of the constitution, or they are void. If
they have passed a statute authorizing an act to be done in a State which they
had no power to authorize in a State, their statute is void. The acts of
Congress, to be supreme law in a State, must be passed in execution of some of
the powers delegated to Congress, or to some department or officer of the
government. Congress may pass all laws necessary and proper to carry a given
power into effect: but they must have a given power. Now, what is the given
power for the execution of which the sale of lottery tickets in the States is an
appropriate means? It is sufficient to show that the act passed is a means of
carrying into execution some delegated power. The degree of its necessity or
propriety will not be questioned by this Court; but it must obviously tend to
the execution or sanction of some enumerated power. If it shall appear on the
face of the act, that it is not passed for the purpose of carrying into effect
an enumerated power, and [***92] that it is passed for some other
purpose, the act would not be constitutional.
As to the
object being a national one for which the money is raised by the lottery in
question: the nation has no particular interest in any thing in the City of
Washington, except the public property and buildings belonging to the United
States. The improvements to be made in the City by the proceeds of this lottery,
are not national buildings for the accommodation of the federal government; they
are Corporation buildings for the accommodation of the City, the charge of which
is to be borne out of the revenues of the City. But, it is not admitted, that if
the money was to be applied to building of the capitol, that Congress would have
power, for that purpose, to authorize the sale of lottery tickets in a State,
contrary to State laws.
The nation is interested in the
prosperity of every city within the limits of the Union. All may be made to
contribute to the public treasury -- the City of Washington as well as others.
If these improvements in the City of Washington are such as the United States
should pay for, let the money be advanced from the treasury, and raised by taxes
or by loans in a constitutional [***93] manner, and let the taxes
imposed on the City of Washington, for the purpose of making these improvements,
be declared unconstitutional. They doubtless are so if the people of Washington
alone are taxed for purposes truly national. This measure is not adopted to aid
the revenue of the United States. It is adopted for the purpose of aiding the
revenue of the City of Washingtion; for effecting objects which the revenue of
the City should effect, but which the ordinary revenue is unequal to. It is to
raise an extraordinary revenue for the City of Washington. Virginia, in which
State it has been attempted to raise a part of this extraordinary revenue, has
no more interest in the penitentiaries and city halls of Washington than in
those of Baltimore.
Our opponents must maintain that
this is an act of Congress authorizing the sale of lottery tickets in Virginia:
For if it is not, the question is at an end. I call upon them to show a power
granted to Congress, which the sale of lottery tickets in a State is an
appropriate means of executing. Suppose that Congress had passed an act
expressly authorizing P. & M. Cohen to vend lottery tickets in Virginia, for
the purpose of raising a [***94] fund to diminish the taxes laid by
the Corporation of Washington on the inhabitants, for their own benefit: would
such an act have been constitutional? Which of the enumerated powers of Congress
would such an act have been an appropriate means of carrying into effect?
Suppose that Congress had considered lotteries as pernicious gambling: could
they have prohibited the sale of lottery tickets in the States? It will be
admitted that they could not. And if they cannot prohibit the sale of tickets in
a State, it is contended that they cannot authorize such a sale. Let us suppose
that Congress have passed an act authorizing the sale of lottery tickets in the
States, for the purpose of raising money to build a city hall in the City of
Washington: Is such an act within the constitutional powers of Congress? Is it a
mode of laying and collecting taxes? Or is it a mode of borrowing money? And is
it for the purpose of paying the debts or providing for the general welfare of
the United States? Should it even be said that this lottery is a tax, or a mode
of borrowing money, yet the tax is laid, or the money borrowed, not by and for
the United States, but by the Corporation for the City [***95] of
Washington.
Congress have two kinds or grades of power:
(1.) Power to legislate over the States in certain enumerated cases. (2.) Power
to legislate over the ten miles square, and the sites of forts and arsenals, in
all cases whatsoever.These powers, so very dissimilar, should be kept separate
and distinct. The advocates of the Corporation confound them. They pass the act
of Congress by the power to legislate over the ten miles square, unlimited as to
objects, but confined within the lines of the District, and they extend its
operations over the States, by the power to legislate over them, limited as to
objects, but co-extensive with the Union. The act incorporating the City of
Washington was certainly not passed to carry into execution any power of
Congress, other than the power to legislate over the District of Columbia. If
the clause conferring power to legislate in all cases over the ten miles square,
had been omitted, could Congress establish lotteries? Could an act establishing
a lottery be ascribed to any of the specific powers, in the execution of which
Congress may legislate over all the States?
If the act
authorizing a lottery is justified by the powers which extend [***96]
to the States, there is no occasion to rest it on the power to legislate in all
cases over Columbia. And if it is not justified by the powers which extend to
the States, it cannot be justified by that power which, being limited to the
District, does not extend to the States. If the act of Congress has effect in
Virginia, it is a law over the States, and must have been passed by a power to
legislate over the States. Now, a law over the States cannot be passed by a
power to legislate over Columbia. But it is the power to legislate over Columbia
that has been exercised. Therefore, no law has been passed over the States.
Consequently, no law has been passed having effect in the States. It is, then,
by the power to legislate over the ten miles square that the authority to sell
lottery tickets in the States must be defended.
The
power to legislate over the ten miles square, is strictly confined to its
limits, and does not authorize the passage of a law for the sale of lottery
tickets in the States. n14 When Congress legislate exclusively for Columbia,
they are restrained to objects within the District. An act of Congress, passed
by the authority to legislate over the District, cannot [***97] be
the supreme law in a State; for if, by the power to legislate, in all cases
whatsoever, over the District, Congress may legislate over the States, it will
necessarily follow, that Congress may legislate over the States in all cases
whatsoever.
n14 Virginia
Debates in Convention, vol. 2. p. 21. 29.
The
constitution gives to Congress power to exercise exclusive legislation over the
ten miles square, in all cases whatsoever. In the case of Loughborough v. Blake,
the Court said, that "on the extent of these terms, according to the common
understanding of mankind, there can be no difference of opinion." n15 What is
the opinion in which all mankind will unite as to the extent of those terms?Not
an opinion that the laws passed in legislating over the District, shall operate
in the States. The opinion in which it is presumed that mankind generally will
unite, is, that all acts of Congress, not contrary to reason or the restrictions
of the constitution, passed in legislating over the District, shall operate
exclusively within its limits, but not at all beyond them. The power given to
Congress, is power to legislate exclusively in all cases over the District. What
are the appropriate [***98] means of executing that power? To frame a
code of laws having effect within the District only; to establish Courts having
jurisdiction within the District only, &c. But what are the powers claimed?
Power to repeal the penal laws of a State; power to pass laws "that know no
locality in the Union;" laws "that can encounter no geographical impediments;"
laws "whose march is through the Union." I admit, that all the powers of
Congress, except this of exclusive legislation in all cases, extend throughout
the Union; but this, by the most express words, and from its nature, is local.
Yet, in this case, by a power to legislate for a District ten miles square,
Congress is made to assume a power to legislate over the whole Union; and
because an act is authorized to be done in Columbia, over which Congress may
legislate in all cases whatsoever, it is, therefore, to be a legal act when done
in a State, the laws of such State notwithstanding.
n15 5 Wheat. Rep. 317.
The power
given to Congress to legislate over the District in all cases whatsoever, is
precisely of the same extent as if this had been the only power conferred on
them. Now, had it been the only power conferred on Congress, [***99]
could there have arisen any doubt about its extent? When Congress legislate for
the District of Columbia, they are a local legislature. The authority to
legislate over the District in all cases whatsoever, is as strictly limited as
is that of the legislature of Delaware to legislate only over Delaware. The acts
of the local legislature have no operation beyond the limits of the place for
which they legislate.
If this clause confers on
Congress any legislative power over the States, it must be of the kind granted.
But the power granted is exclusive, and no one will contend, that an exclusive
power to legislate over the States is conferred on Congress. The power given
extends to all cases whatsoever, and no one will contend, that Congress have
power to legislate over the States in all cases whatsoever. The grant is of an
exclusive power in all cases over ten miles square.The claim set up is a claim
of paramount power over the whole United States.
Any
single measure which Congress may adopt, must be justified by some single grant
of power, or not at all. No combination of several powers can authorize Congress
to adopt a single measure which they could not adopt either by
one [***100] or another of those powers, combined with the power to
pass necessary and proper laws for carrying such single power into effect.
There is no repugnancy between the acts of Virginia
against selling lottery tickets within that State, and the power granted to
Congress to legislate over the District of Columbia. There can be none; for the
line of the District completely separates them. The act passed by Congress is
confined to the District; the act of the State legislature is confined to the
State: How can there be any repugnancy? A power to legislate over Virginia
cannot come into collision with a power to legislate over the District, unless
those to whom they are entrusted pass the limits of their jurisdiction. It is
not alleged, that the legislature of Virginia have passed the limits of their
jurisdiction. If Congress have authorized a lottery to be drawn within the city,
the sale of tickets, and the drawing of the lottery are thereby legalised within
the city. Congress have never said that lottery tickets may be sold in the
States. Those tickets may be sold in any place where the local laws will admit.
But that they should be sold in Virginia, where such a sale is unlawful,
[***101] Congress have neither enacted, nor had power to enact. It
is said, that without a power to sell the tickets, the power to draw the lottery
is ineffectual. I answer, if a power to sell lottery tickets necessarily follows
a power to draw lotteries, as the lotteries must be drawn in the city, so there
the tickets must be sold. The authority to sell is the authority to draw; and as
the principal authority (to draw) is confined to the city, so is the consequent
authority, (to sell.) Can the Corporation draw lotteries in the States? If not,
where is their authority to sell where they have no authority to draw? If the
seller of lottery tickets is the agent of the Corporation, then they can clothe
him with no legal authority to be executed in a State, contrary to the law of
the State. The Corporation must sell their tickets where they have authority, or
where they are permitted to sell. If the seller was a purchaser of tickets, and
desires to sell again, the City has no interest in that subsequent sale; and the
purchaser must sell where he is permitted to sell. Why should the owners of
these tickets have an exclusive privilege in Virginia, to sell their tickets.
contrary to the laws [***102] of the land?
It has been, in effect, maintained, that Congress may not only
themselves legislate over the Union, but that they may exercise this power by
substitute. Power to legislate over a State must be derived from the people; and
cannot be transferred. If the power to legislate over the City may be vested in
the representatives of the people thereof; yet, surely, a power to legislate
over the States cannot be transferred to the representatives of the people of
the City.When Congress pass an act which shall have the effect of law in the
States, it must be passed in pursuance of power delegated to them by the people
of the States. The constitution declares, that "all legislative power herein
granted shall be vested in a Congress of the United States." This vested power
cannot be transferred to a Corporation. It must be exercised by Congress, and in
the manner prescribed by the constitution. Legislative power is not, in its
nature, transferrable. The people do not consent to obey any laws except those
passed by their representatives according to the constitution. They who
legislate for the nation must represent the nation. The Corporation of
Washington cannot receive power [***103] to legislate over the people
of the United States. To incorporate the people of the City of Washington with
power to make by-laws for the government and police of the city, is no transfer
of power. It is an authority to exercise an inherent power. There is in every
body of people a natural inherent right to legislate for themselves: but small
societies must have permission or authority, from the great societies, of which
they form a part. Thus, Congress authorized the people of Missouri to form a
constitution, and govern themselves. Is this a transfer of power? No, certainly:
it is an authority to exercise the inherent power of the people in governing
themselves. Congress may authorize the people of Washington, or the people of
Arkansas, to govern themselves; but it was never heard, until this case arose,
that a local Corporation, authorized by Congress to legislate for themselves,
could pass laws of obligation throughout the Union: laws paramount in the States
to the laws of the States.
It seems to have been
considered by the advocates of the Corporation, that what Congress authorizes to
be done, that they do. This is not so. Congress authorized Missouri to form a
constitution; [***104] but Congress did not therefore form the
constitution of Missouri. The Corporation of Washington were left free to act on
the subject of lotteries. They were empowered to authorize the drawing of
lotteries, and to pass the laws necessary and proper for carrying that power
into effect. The law establishing the lottery in question, is the by-law of the
Corporation. The by-laws of the City of London are not acts of Parliament, or
laws of the realm; neither have the by-laws of the City of Washington any force
beyond the limits of the City.
Congress have not said
that the lottery tickets should be sold in the States. They have not even said
that there shall be a lottery. Congress empowered the Corporation to pass the
law, and the Corporation passed it; the ordinance of the Corporation
establishing a lottery, is no more a part of the act of Congress, than the
territorial laws now passing in Arkansas will be parts of the acts of Congress.
It is not an act of Congress under which these tickets have been sold in
Virginia, contrary to the laws of that State: it is a by-law of the Corporation
of Washington that gave existence to this lottery. An act of Congress does not
apply to the case; [***105] and therefore this Court have no
jurisdiction under the judiciary act.
The powers of the
Corporation of Washington are confined within the limits of the City. Being a
Corporation for government, all within the corporate limits are subject to them;
but no others. n16 They cannot make a by-law affecting even their own members,
beyond the corporate limits; they have no power to pass a law authorizing the
sale of lottery tickets in Georgetown, much less have they the power to
authorize the sale of them in a State, contrary to its laws. This by-law either
extends beyond the limits of the City, or it does not. If it does, it is void:
and if it does not, it can have no effect in Virginia. The by-laws of a
Corporation are to be subject to the laws of the land, even within their limits.
The laws of the States are the laws of the land, within their limits, on
subjects not committed to Congress. To those laws all corporate laws are
subject. n17 But there cannot be that kind of collision between bylaws of the
Corporation of Washington and State laws, as between the by-laws of the
Corporation of the City of London, and the laws of England. As the by-laws of
London may come in collision [***106] with the laws of England, but
cannot come in collision with the laws of Ireland and Scotland, in those
countries; so the by-laws of the Corporation of Washington may come in collision
with the laws of the United States in the ten miles square; but can never come
in collision with the laws of a State, for they cannot have operation in a
State.
The Court will maintain the powers of Congress
as granted by the people, and for the purposes for which they were granted by
the people; and will, if possible, to preserve harmony, prevent the clashing of
federal and State powers. Let each operate within their respective spheres; and
let each be confined to their assigned limits. We are all bound to support the
constitution. How will that be best effected? Not by claiming and exercising
unacknowledged power. The strength thus obtained will prove pernicious. The
confidence of the people constitutes the real strength of this government.
Nothing can so much endanger it as exciting the hostility of the State
governments. With them it is to determine how long this government shall endure.
I shall conclude by again reminding the Court of a declaration of their own,
that, "no power ought to [***107] be sought, much less adjudged, in
favour of the United States, unless it be clearly within the reach of their
constitutional charter."
Mr. D. B. Ogden, contra, (1.) stated, that he should not argue the
general question whether this Court had an appellate jurisdiction, in any case,
from the State Courts, because it had been already solemnly adjudged by this
Court, in the case of Martin v. Hunter. n18
n18 1 Wheat. Rep. 304.
2. This is
a case arising under the constitution and laws of the Union, and therefore the
jurisdiction of the federal Courts extends to it by the express letter of the
constitution; and the case of Martin v. Hunter has determined that this
jurisdiction may be exercised by this Court in an appellate form. But it is
said, that the present case does not arise under the constitution and laws of
the United States, because the legislative powers of Congress, as respects the
District of Columbia, are limited and confined to that District. But, if the
law [***108] be thus limited in its operation, how is this to be
discovered but by examining the constitution? and how is this examination to be
had but by taking jurisdiction of the case? In the whole argument, constant
reference was had, and necessarily had, to the constitution, in order to decide
the case between the parties, upon this question of jurisdiction; and yet it is
said to be a case not arising under the constitution. It is also contended, that
it is not an act of Congress, the validity of which is drawn in question in the
present case; but an ordinance of the Corporation of the City of Washington; and
the maxim of delegatus non potest delegare, is referred to, in order to show
that the Corporation cannot exercise the legislative power of Congress. Is it
meant by this to assert that Congress cannot authorize the Corporation to make
bylaws? Even the soundness of this position cannot be determined without
examining the constitution and acts of Congress, and adjudging upon their
interpretation. The whole District of Columbia, and all its subordinate
municipal Corporations, are the creatures of the constitution; and the acts of
Congress, relative to it, must be determined by the [***109]
constitution, and must be laws of the United States. Are not the extent of the
powers vested in Congress, and the manner in which these powers are to be
executed, necessarily, questions arising under the constitution, by which the
powers are given?How can the question, whether this is a lottery authorized by
an ordinance of the Corporation, and not by a law of the United States, be
decided, but by a reference to the laws of the Union, and the constitution under
which they were enacted? The plaintiffs in error set up a right to sell lottery
tickets in the State of Virginia, under the constitution and laws of the United
States, and the State denies it. By whom is this question to be decided? It is a
privilege or exemption, within the very words of the judiciary act, set up or
claimed, by the party, under the constitution and laws of the Union. It is
immaterial for the present purpose whether the claim be well or ill founded. The
question is, whether the party setting up the claim, is to be turned out of
Court, without being heard upon the merits of his case. If you have not
jurisdiction, you cannot hear him upon the merits. Upon this motion to quash the
writ of error, you can [***110] only inquire into the jurisdiction,
and cannot look into the merits: but you are asked to turn the party out of
Court for defect of jurisdiction, and without giving him an opportunity to show
that by the laws and constitution of the Union, he is entitled to the privilege
and exemption which he claims. It is no answer to say that any individual may
allege that he has such a privilege, in order to remove his case from the State
Court to this; because no injury would ensue, as the case would be sent back
with damages: and even if there might be some inconveniences, from improperly
bringing causes here, they ought rather to be submitted to, than to hazard the
possible violation of the constitutional rights of a citizen.
3. It is no objection to the exercise of the judicial powers of this
Court, that the defendant in error is one of the States of the Union. Its
authority extends, in terms, to ALL cases arising under the constitution, laws,
and treaties of the United States; and if there be any implied exceptions, it is
incumbent on the party setting up the exception to show it. In order to except
the States, it is said that they are sovereign and independent societies, and
therefore [***111] not subject to the jurisdiction of any human
tribunal. But we deny, that since the establishment of the national
constitution, there is any such thing as a sovereign State, independent of the
Union. The people of the United States are the sole sovereign authority of this
country. By them, and for them, the constitution was established. The people of
the United States in general, and that of Virginia in particular, have taken
away from the State governments certain authorities which they had before, so
that they are no longer sovereign and independent in that sense which exempts
them from all coercion by judicial tribunals. Every State is limited in its
powers by the provisions of the constitution; and whether a State passes those
limits, is a question which the people of the Union have not thought fit to
trust to the State legislatures or judiciaries, but have conferred it
exclusively on this Court. The Court would have the jurisdiction without the
word State being mentioned in the constitution. The term "all cases," means all,
without exception; and the States of the Union cannot be excepted, by
implication, because they have ceased to be absolutely sovereign and
independent. [***112] The constitution declares that every citizen
of one State, shall have all the privileges of the citizens of every other
State. Suppose Virginia were to declare the citizens of Maryland aliens, and
proceed to escheat their lands by inquest of office: the party is without a
remedy; unless he can look for protection to this Court, which is the guardian
of constitutional rights.Because the State, which is the wrong doer, is a party
to the suit, is that a reason why he should not have redress? By the original
text of the constitution, there is no limitation in respect to the character of
the parties, where the case arises under the constitution, laws, and treaties of
the Union: and the amendment to the constitution respecting the suability of
States, merely applies to the other class of cases, where it is the character of
the parties, and not the nature of the controversy, which alone gives
jurisdiction. The original clause giving jurisdiction on account of the
character of the parties, as aliens, citizens of different States, &c. does
not limit, but extends the judicial power of the Union. The amendment applies to
that alone. It leaves a suit between a State and a citizen,
arising [***113] under the constitution, laws, &c. where it found
it; and the States are still liable to be sued by a citizen, where the
jurisdiction arises in this manner, and not merely out of the character of the
parties. The jurisdiction in the present case arises out of the subject matter
of the controversy, and not out of the character of the parties; and,
consequently, is not affected by the amendment.
But it
is said, that admitting the Court has jurisdiction where a State is a party,
still that jurisdiction must be original, and not appellate; because the
constitution declares, that in cases in which a State shall be party, the
Supreme Court shall have original jurisdiction, and in all other cases,
appellate jurisdiction. The answer is, that this provision was merely intended
to prevent States from being sued in the inferior Courts of the Union; that the
Supreme Court is to have appellate jurisdiction in all cases arising under the
constitution, laws, and treaties of the United States; that where, in such a
case, a State sues in its own Courts, it must be understood as renouncing its
privilege or exemption, and to submit itself to the appellate power of this
Court; since, if the jurisdiction [***114] in this class of cases be
concurrent, it cannot be exercised originally in the Supreme Court, wherever the
State chooses to commence the suit in its own Courts. Nor is there any hardship
in this construction. The State cannot be sued in its own Courts; but if it
commences a suit there against a citizen, and a question arises in that suit
under the constitution, laws, and treaties of the Union, there must be power in
this Court to revise the decision of the State Court, in order to produce
uniformity in the construction of the constitution, &c. So, if a consul sues
in the Circuit Court, this Court has appellate jurisdiction, although the consul
could not be sued in the Circuit Court. And if the United States, who cannot be
sued any where, think proper to sue in the District or Circuit Court, they are
amenable to the appellate jurisdiction of this Court. Even granting, therefore,
that a State cannot be sued in any case; the State is not sued here: she has
sued a citizen, in her own tribunals, who implores the protection of this high
Court to give him the benefit of the constitution and laws of the Union. The
jurisdiction does not act on the State; it merely prevents the State
from [***115] acting on a citizen, and depriving him of his
constitutional and legal rights.
It is true, there are
some cases where this Court cannot take jurisdiction, though the constitution
and laws of the Union are violated by a State. But wherever a case is fit for
judicial cognizance, or wherever the State tribunals take cognizance of it,
whether properly or not, the appellate power of this Court may intervene, and
protect the constitution and laws of the Union from violation. Doubtless, a
State might grant titles of nobility, raise and support armies and navies, and
commit many other attacks upon the constitution, which this Court could not
repel. But if these attacks were made by judicial means, or if judicial means
were used to compel obedience to these illegal measures, the authority of this
Court could, and would, intervene. Nor can this argument apply to a case, which
is entirely judicial in its very origin, and, therefore, steers clear of the
supposed difficulty of vindicating the constitution and laws of the Union from
violation in other cases which may be imagined.
Neither
is this a criminal case. The offence in question is not made a misdemeanour by
the law of Virginia. That [***116] law merely imposes a penalty,
which may be recovered by action of debt, or information, or indictment. The
present prosecution is a mere mode of recovering the penalty. But suppose it is
a criminal case. The constitution declares, that the Court shall have
jurisdiction in ALL cases arising under it, or the laws and treaties of the
Union; which includes criminal as well as civil cases; unless, indeed, Congress
has refused jurisdiction over the former in the judiciary act, which we insist
it has not.
Mr. Pinkney, on the same side, (1.) argued,
that there was no authority produced, or which could be produced, for the
position on the other side, that this Court could not, constitutionally,
exercise an appellate jurisdiction over the judgments or decrees of the State
Courts, in cases arising under the constitution, laws, and treaties of the
Union. The judiciary act of 1789, c. 20. contains a cotemporaneous construction
of the constitution in this respect, of great weight, considering who were the
authors of that law; and which has been since confirmed by the repeated
decisions of this Court, constantly exercising the jurisdiction in question. n19
This legislative and judicial exposition [***117] has been acquiesced
in, since no attempt has ever been made to repeal the law upon the ground of its
repugnancy to the constitution: Transiit in rem judicatam. But even before the
constitution was adopted, and whilst it was submitted to public discussion, this
interpretation was given to it by its friends, who were anxious to avoid every
objection which could render it obnoxious to State jealousy. But they well knew
that this interpretation was unavoidable, and the authors of the celebrated
Letters of Publius, or the Federalist, have stated it in explicit terms. n20
n19 Clarke v. Harwood, 3 Dall.
342. Gordon v. Caldcleugh, 3 Cranch, 268. Smith v. Maryland, 6 Cranch, 286.
Matthews v. Zane, 4 Cranch, 382. Owings v. Norwood's Lessee, 5 Cranch, 344.
Martin v. Hunter, 1 Wheat. Rep. 304. Otis v. Walter, 2 Wheat. Rep. 18. Miller v.
Nicholls, 4 Wheat. Rep. 311. Gelston v. Hoyt, 3 Wheat. Rep. 246. M'lntire v.
Wood, 7 Cranch, 505. Slocum v. Mayberry, 2 Wheat. Rep. 1. M'Culloch v. Maryland,
4 Wheat. Rep. 316.
n20 "Here another question occurs --
what relation would subsist between the national and the 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 judiciary 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 of the laws of the Union, and an appeal from them will as naturally
lie to that tribunal which is destined to unite and assimilate the principles of
national justice and the rules of national decisions. The evident aim of the
plan of the convention is, that all the causes of the specified classes shall,
for weighty public reasons, receive their original or final determination in the
Cours of the Union. To confine, therefore, the general expressions, giving
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." No. LXXXIII. [***118]
But it is said, that the jurisdiction of the State Courts
is concurrent with those of the Union, over that class of cases arising under
the constitution, laws, and treaties of the United States. This, however, is not
of absolute necessity, but at the discretion of Congress, who may restrain and
modify this concurrent jurisdiction, or render it exclusive in the federal
tribunals at their pleasure. The supremacy of the national constitution and
laws, is a fundamental principle of the federal government, and would be
entirely surrendered to State usurpation, if Congress could not, at its option,
invest the Courts of the Union with exclusive jurisdiction over this class of
cases, or give those Courts an appellate jurisdiction over them from the
decisions of the State tribunals. Every other branch of federal authority might
as well be surrendered. To part with this, leaves the Union a mere league or
confederacy of States entirely sovereign and independent. This particular
portion of the judicial power of the Union is indispensably necessary to the
existence of the Union. It is an axiom of political science, that the judicial
power of every government must be commensurate with its [***119]
legislative authority: it must be adequate to the protection, enforcement, and
assertion of all the other powers of the government. In some cases this power
must necessarily be directly exercised by the federal tribunals, as in enforcing
the penal laws of the Union. But in other cases, it is merely a protecting
power, and cannot, from the very nature of things, be exercised in the first
instance, by the Courts of the Union. Such are suits between citizen and citizen
on contract. Here the State Courts must necessarily have original jurisdiction;
but if the party defendant sets up a defence, founded (for example) upon an act
of the State legislature supposed to impair the obligation of contracts, and the
decision of the State Court is in favour of the law thus set up, the judicial
authority of the Union must be exerted over the cause, or that clause of the
constitution which prohibits any State from making a law impairing the
obligation of contracts is a dead letter. There is nothing in the constitution
which prohibits the exercise of such a controlling authority. On the contrary,
it is expressly declared, that where the case arises under the constitution and
laws of the Union, [***120] the judicial power of the Union shall
extend to it. It is the case, then, and not the forum in which it arises, that
is to determine whether the judicial authority of the Union shall be exercised
over it. But there is a class of cases which must necessarily originate in the
State tribunals, because it cannot be known at the time the suit is commenced,
whether it will or will not involve any question arising under the constitution
and laws of the Union. Over this class of cases, then, the Courts of the Union
must have appellate jurisdiction. The appellate power of this Court is extended
by the constitution to all cases within the judicial authority of the Union, and
not included within the original jurisdiction of this Court. Its appellate
power, so far as respects the constitution, depends, then, on two questions
only: is the case within the judicial power of the Union? and is it within the
original cognizance of this Court? The first question being answered
affirmatively, and the second negatively, the appellate power under the
constitution is completely established in any given case.
But the power of removing this class of causes, pendente lite, is also
denied; and it is [***121] said, that the authority to remove, before
judgment, a suit brought in the State Court, into the federal Court, is
repugnant to the constitution. In Martin v. Hunter, the argument was the other
way, and it was insisted, that Congress ought to have given to this Court the
power of evoking this description of causes from the State tribunals, the moment
any question arose respecting the constitution and laws of the Union, in order
to avoid the offensive exercise of an appellate jurisdiction over the State
Courts. n21 Quacunque via data -- it is immaterial; for the power of removal, if
it be not unconstitutional, is an appellate power, and analogous to a writ of
error.If it be unconstitutional, the necessity for the controlling power of a
writ of error, is only the more manifest. Take away both, and the constitution,
laws, and treaties of the Union lie at the mercy of the State judicatures.
n21 1 Wheat. Rep. 319.
Again. It is said, that the judges of the State Courts
take an oath to support the constitution of the Union, and the laws and treaties
of the Union are their supreme law: and it is inferred, that the constitution
reposes implicit confidence in them, and there ought to [***122] be
no revision of their judgments. But, it may be asked, if the constitution
reposes this implicit confidence in the State tribunals, why does it authorize
the establishment of federal Courts, which, upon this supposition, would be
wholly useless? And why are the members of the State legislatures and executives
required to take the same oath? They are bound to support the constitution by
the same solemn sanctions, and yet their acts may confessedly be set aside by
the national judicatures, as being repugnant to that constitution.The actual
constitution of this country is not a government of confidence; it is a scheme
of government conceived in the spirit of jealousy, and rendered adequate to all
its own purposes, by its own means: and the judicial power of the Union is the
principal means of giving effect to it. This it is which distinguishes it from
the Confederation. Experience has shown the necessity and wisdom of this
provision. If the State Courts may adjudicate conclusively for the Union, why
may not the State legislatures legislate for it; and where is the utility of
distinct and appropriate powers, if it cannot maintain them from violation? In
Martin v. Hunter, n22 the [***123] Court considered this argument
fully, and thought it operated the other way. The care which the constitution
takes to make the State Courts respect it, and the laws and treaties made under
it, proves that it was supposed that cases might come before them by original
suit, which would involve the rights and interests of the Union, and lay a
foundation for appeal or revision. This was anticipated, and the constitution
endeavours to make the first decision correct, by the sanction of an oath. But
it does not improvidently rely upon that alone. The judges of the inferior
Courts of the Union take the same oath, and lie under the same obligation; but
they are not the less subject to the appellate jurisdiction of the Supreme
Court.
n22 1 Wheat. Rep.
349.
But it is asked, can Congress grant an appeal from
the District or Circuit Court, to a State Court?The question is answered in the
negative, and it is thence inferred that they cannot grant an appeal from a
State to a federal Court. This seems to imply that you can do nothing unless you
can do its opposite. Such a proposition would repeal all the physical and moral
laws of the universe. As well might it be asked, can
Congress [***124] grant an appeal from the Supreme to the District
Court; and because there is something absurd in the idea of an appeal from a
superior to an inferior tribunal, it would be inferred that the opposite appeal
could not be granted. But, until the relation of supreme and subordinate is
destroyed, the State laws and judicatures must be considered as subordinate to
those of the Union, in all cases within the scope of its powers and
jurisdiction. Such was once the doctrine asserted by Virginia herself, and to
which it is confidently believed she will revert in a moment of calmer
reflection.
n23 The learned
counsel here read the following resolutions of the legislature of Virginia.
Extract from the Journal of the Senate of the Commonwealth
of Virginia, begun and held at the Capitol in the City of Richmond, the 4th day
of December, 1809.
Friday, January 26, 1810. "Mr.
Nelson reported from the Committee to whom were committed the preamble and
resolutions on the amendment proposed by the legislature of Pennsylvania, to the
constitution of the United States, by the appointment of an impartial tribunal
to decide disputes between the State and federal judiciary, that the Committee
had, according to order, taken the said preambles and resolutions under their
consideration, and directed him to report them without any amendment. And on the
question being put thereupon, the same were agreed to unanimously, by the House,
as follows: The Committee to whom was referred the communication of the Governor
of Pennsylvania, covering certain resolutions of the Legislature of that State,
proposing an amendment to the constitution of the United States, by the
appointment of an impartial tribunal to decide disputes between the State and
federal judiciary, have had the same under their consideration, and are of
opinion that a tribunal is already provided by the Constitution of the United
States, to wit: The Supreme Court, more eminently qualified from their habits
and duties, from the mode of their selection, and from the tenure of their
offices, to decide the disputes aforesaid, in an enlightened and impartial
manner, than any other tribunal which could be created. The members of the
Supreme Court are selected from those in the United States who are most
celebrated for virtue and legal learning, not at the will of a single
individual, but by the concurrent wishes of the President and Senate of the
United States; they will, therefore, have no local prejudices and partialities.
The duties they have to perform lead them necessarily to the most enlarged and
accurate acquaintance with the jurisdiction of the federal, and several State
Courts, together with the admirable symmetry of our Government. The tenure of
their offices enables them to pronounce the sound and correct opinions they may
have formed, without fear, favour, or partiality. The amendment to the
constitution proposed by Pennsylvania, seems to be founded upon the idea that
the federal judiciary will, from a lust of power, enlarge their jurisdiction, to
the total annihilation of the jurisdiction of the State Courts; that they will
exercise their will instead of the law and the constitution. This argument, if
it proves any thing, would operate more strongly against the tribunal proposed
to be created, which promises so little, than against the Supreme Court, which,
for the reasons given before, have every thing connected with their appointment,
calculated to insure confidence. What security have we, were the proposed
amendment adopted, that this tribunal would not substitute their will and their
pleasure in place of the law? The judiciary are the weakest of the three
departments of government, and least dangerous to the political rights of the
constitution. They hold neither the purse nor the sword; and even to enforce
their own judgments and decrees, must ultimately depend upon the executive arm.
Should the federal judiciary, however, unmindful of their weakness, unmindful of
the duty which they owe to themselves and their country, become corrupt, and
transcend the limits of their jurisdiction, would the proposed amendment oppose
even a probable barrier to such an improbable state of things? The creation of a
tribunal such as is proposed by Pennsylvania, so far as we are enabled to form
an idea of it, from the description given in the resolutions of the legislature
of that State, would, in the opinion of your Committee, tend rather to invite,
than prevent a collision between the federal and State Courts. It might also
become, in process of time, a serious and dangerous embarrassment to the
operations of the general Government.
Resolved,
therefore, that the legislature of this State do disapprove of the amendment to
the constitution of the United States proposed by the legislature of
Pennsylvania.
Resolved, also, that his excellency the
Governor be, and is hereby requested to transmit forthwith, a copy of the
foregoing preamble and resolutions to each of the Senators and Representatives
of this State, in Congress, and to the executives of the several States in the
Union, and request that the same be laid before the legislatures thereof."
Extract from the Journal of the House of Delegates of the
Commonwealth of Virginia:
"Tuesday, January 23, 1810.
The House, according to the order of the day, resolved itself into a committee
of the whole house on the state of the Commonwealth, and after some time spent
therein, Mr. Speaker resumed the chair, and Mr. Robert Stanard reported that the
committee had, according o order, had under consideration the preamble and
resolutions of the select committee to whom were referred that part of the
Governor's communication which relates to the amendment proposed to the
Constitution of the United States, by the legislature of Pennsylvania, had gone
through the same, and directed him to report them to the House without
amendment; which he handed in at the clerk's table, and the question being put
on agreeing to the said preamble and resolutions, they were agreed to by the
House unanimously. [***125]
2. It is further
contended on the other side, that this Court has no jurisdiction of the present
case, because the writ of error presents no question arising under the
constitution or laws of the United States. And to show this, it is said that the
record speaks only of the validity of the act of Congress, and nobody denies its
validity, and therefore no question arises under an act of Congress. But the
words of the judiciary act are pursued by this writ of error, as they always
have been in other cases. It is the validity of the act of Congress, and the
validity of the act of Virginia, as compared with it, which are drawn into
question. The Court below decided against the first, and in favour of the last,
to the full extent of the case. The validity of the act of Congress, means the
effect attributed to it by the defendant who sets it up as a defence against so
much of the act of the State as inflicts a penalty upon him for doing what the
act of Congress authorizes. The defendant relies upon the act of Congress, as
creating an exception in favour of his case, out of the act of Virginia. He says
it is valid, or available, or efficacious to create such an exception. That
was [***126] the question which the record shows was before the Court
below; and the Court decided that it was not so valid, or available, or
efficacious. Whether it is so or not, is the question which the writ of error
presents for inquiry; and it is such a question as the appellate power of this
Court can deal with. But the question on this motion to dismiss the writ of
error, is not whether the act of Congress is valid as against the act of
Virginia; but whether that question is presented by the record, so that this
Court can determine it, after it has concluded to entertain the writ of error.
It is the claim of a right, privilege, or exemption under the statute of the
United States, which gives the jurisdiction. n24 The decision upon that claim,
as it appears upon the record, is the exercise of the jurisdiction. That the
claim to exemption appears upon the record, cannot be denied in this case more
than any other. The claim may even be an absurd one: but this Court cannot be
called upon, on a motion to dismiss the writ of error, to condemn it as such.
All argument upon the sufficiency of the claim is premature, so long as it is,
sub judice, whether the Court can examine its sufficiency. [***127]
n24 Wheat. Dig. Dec. tit.
Const. Law, V. (B.) 186.
But it is said, that the
question does not arise under any statute of the United States, but under a mere
by-law of the City of Washington; and that the case involves nothing but that
by-law: and it is said to be absurd to call a by-law of the City of Washington a
law of the United States. It is immaterial whether it be so or not. The by-law
is the execution of a power given by a law of the United States. The effect of
the execution of that power, involves the effect of the law; and although the
execution of the power is not a law of the United States, yet that which gives
the power is. The question, therefore, is, not what is the mere effect of the
execution of the power in the abstract, or unconnected with the law which gives
it, but what is the effect of the power by force of the law which gives it: and
that question compels you to mount up to the constitution itself.
The course of the inquiry will then be, (1.) What has the
party done? and what is the immediate authority under which he did it? (2.) What
is the nature and extent of that authority? what its qualities under the law
which gave it, and the constitution [***128] under which that law was
passed?
If an officer of the United States does any act
for which a State Court calls him to account, and he relies in his defence upon
the authority, real or supposed, of a statute of Congress, his act is not a law
of the United States; but his defence is referred to the effect and validity of
a law of the United States, and that is again referred to the constitution,
which is the paramount law. The last act done need not be a law of the United
States. It is sufficient, if it is attempted to be justified, or its
consequences maintained, under a law of the United States, which it is alleged
gave to it a protecting power in the case before the Court.
It is, however, asserted, that the constitution gives jurisdiction only
in cases arising under it, or the laws, or treaties of the United States; and
that this case does not arise under a law of the United States, because the act
of Congress now in question is not a law of the United States. An act of the
Congress, in its capacity of local sovereign of the District of Columbia, is
said not to be a law of the United States. But whose law, then, is it? The
United States in Congress assembled, are the local [***129]
sovereigns of the District, and it is by them that this law is passed. Is it
less a law of the United States, because it does not operate directly upon the
Union at large? A statute is not a law of the United States on account of the
subject on which it acts being limited or unlimited. It is a law of the United
States, because it is passed by the legislative power of the United States.The
legislative authority over the District of Columbia, is that of the Union. Its
sphere is limited, but the power itself is even greater than the general federal
power of the Union.It is the power of the People and the States combined,
exerted upon their peculiar domain. It is the same Congress which passes both
description of laws. The question, whether the law operates beyond the District,
is the question upon the merits hereafter to be discussed.
Again; it is said, that the by-law alone is in question, and not the
act of Congress: because the bylaw is not passed by virtue of the act of
Congress, but by virtue of the inherent power of the people of the District to
govern themselves. The act of Congress only calls this inherent power into
action: and this inherent power, when so called into [***130] action,
is the only power which this Court can deal with. The fallacy of this argument
consists in its confounding inherent power with an inherent capacity to receive
power. The subordinate legislative power of the territories and Districts, which
belong to the Union in full sovereignty, is not their power, but that of their
superior. But admit this abstract doctrine of inherent power: the question still
recurs, what is the constitutional effect of this power being excited into
action by the paramount power. The action of the inherent power will still
depend upon the power by which it is set in motion; and what it can, or cannot
do, under that impulse, is just the same question with the other.
It is also objected, that a law emanating from the local
power of Congress over the District of Columbia, cannot bind the Union. But
whether it can or not is the very question to be determined, when the merits
come to be discussed; which the writ of error gives authority to decide; and
which cannot be decided without entertaining the writ of error. The argument on
the other side, proceeds in a vitious circle. It is asserted, that you must
quash the writ of error, because you have no jurisdiction [***131]
over the case or question. It is, then, said, that you must take jurisdiction
of, and inquire into, the case and the question, in order that you may dismiss
the writ of error: or, in other words, you have, and you have not, jurisdiction
over the case and question, and you ought to decide them in order to see that
you ought not to decide them. And here again the supposed absurdity of the claim
of protection, by the defendant on the record, against the act of Virginia, is
urged to authorize a refusal to inquire upon the writ of error, whether it is
absured or not.
3. The next ground of objection to the
jurisdiction is, that the writ of error is itself a suit against a State by a
citizen of that or some other State. And Bac. Abr. tit. Error, (L.) is cited as
an authority to show that a release of all suits is a release of a writ of
error. But, even admitting that it may sometimes be technically called a suit,
it is not such a suit as is contemplated by the constitution. A writ of error,
where a party is to be restored to something, may be released by a release of
all suits or actions, because in this respect it resembles an action. But this
writ of error is not a suit, because [***132] the party is not to be
restored to any thing. A reversal of the judgment below will leave things just
as they were before the judgment. But the State of Virginia is not compelled to
come into this Court by the writ of error. A citation, or scire facias ad
audiendum errores, is only notice to the State, leaving it at her option
voluntarily to appear. It does not act compulsorily upon the State. It acts upon
the Court, which she has used as the instrument to enforce her law. A case is
presented by the interference of the judiciary of the State, for the
interposition of the appellate power of this Court. The object is to reverse the
judgment, and that done, there is an end of the exercise of power. The United
States are liable to the same coercion. They may be called before this Court in
the same manner, and the judgments obtained in their favour may be reversed. And
is it then derogatory to the sovereignty of a particular State, that its
judgments should be liable to be controlled in the same manner, in cases within
the judicial power of the Union? This control is exerted upon the judiciary;
upon the judgments of the judiciary. The State is incidentally affected; but
that [***133] has been already determined in this Court to be
immaterial. n25 Nor is this sort of control more exceptionable than that which
is constantly exercised, in suits between private parties, over the acts of the
State legislatures and executives, upon the same ground of their repugnancy to
the constitution and laws of the Union.
n25 Wheat. Dig. Dec. tit. Const. Law, V. (C.) 211.
If it be asked whether you can give costs against the
State, and enforce the payment; the answer is, that you cannot do so in any case
upon a mere reversal of a judgment. And even if you could in a case between
private parties, is it any objection to the appellate jurisdiction of this
Court, where the United States are plaintiffs below, that you cannot award and
enforce the payment of costs against them? It is not jurisdiction over the State
of Virginia that is claimed, but over a question arising under the laws of that
State, and over the judgments of her Courts construing those laws. This point is
incidentally touched in Martin v. Hunter, in considering the question as to
removal of suits, before judgment, and it is there said by the Court that the
remedy of removal of suits would be utterly inadequate [***134] to
the purposes of the constitution, if it could act only on the parties, and not
upon the State Courts. n26
n26 1 Wheat. Rep. 350.
4. Lastly. It is
insisted, for the defendant in error, that this Court has no jurisdiction in the
present case, because a State is a party to the original controversy which the
writ of error brings before the Court: That the jurisdiction of this Court in
all cases, where a State is a party, is original, and therefore it cannot have
appellate jurisdiction in this case.
The obvious answer
to this argument is, that the jurisdiction now claimed does not arise under that
part of the constitution which gives original jurisdiction to the Supreme Court
in cases in which a State is a party; but the jurisdiction is asserted under
that clause which gives the federal judiciary cognizance of all cases arising
under the constitution, laws, and treaties of the United States, without regard
to the character of the parties. In this latter class of cases the Supreme Court
has appellate jurisdiction. In some of this decription of cases, the
jurisdiction could not be originally exercised. The penal laws of a State cannot
be originally enforced, or enforced at [***135] all, by a judicature
of the Union. They cannot therefore form the subjects of, or create subjects
for, its original jurisdiction. The Courts of the United States can here exert
only a controlling or restraining power for the protection of the rights of the
Union, and this can only be done by appeal or writ of error. This view of the
subject is taken in Martin v. Hunter. The Court there says, "Suppose an
indictment for a crime in a State Court, and the defendant should allege in his
defence, that the crime was committed by an ex post facto act of the State; must
not the State Court, in the exercise of a jurisdiction which has already
rightfully attached, have a right to pronounce on the sufficiency and validity
of the defence? It would be extremely difficult, upon any legal principles, to
give a negative answer to these inquiries. Innumerable instances of the same
sort might be stated in illustration of the position; and unless the State
Courts could sustain jurisdiction in such cases, this clause of the sixth
article would be without meaning or effect, and public mischiefs of a most
enormous magnitude would inevitably ensue." n27 So the Court afterwards say, in
the context of [***136] the passage before cited, speaking of the
inadequacy of the remedy of removal of suits to accomplish the purposes of the
constitution, "in respect to criminal prosecutions, the difficulty seems
admitted to be insurmountable," n28 &c. What difficulty? The difficulty of
controlling them by the Courts of the United States without the aid of a writ of
error, because those Courts could take no original cognizance of this
description of cases, and they could not be removed before judgment. As, then,
the federal Courts have no original jurisdiction of cases arising merely under
the constitution, laws, and treaties of the Union, it follows, that the clause
of the constitution which speaks of cases in which a State shall be a party,
does not apply to it: and the appellate power, now in question, is to be sought
for in that part of the same article which declares, that the judicial power of
the Union shall extend to all cases arising under the constitution, laws, and
treaties of the Union, coupled with the subsequent provision, which declares,
that in all cases to which that judicial power extends, this Court shall have
appellate, where it has not original jurisdiction, with such exceptions,
[***137] and under such regulations as Congress may prescribe. That
it has appellate jurisdiction in all cases arising under the constitution, laws,
and treaties of the United States, is established by the authority of the case
of Martin v. Hunter: and that this appellate power is competent to control the
State Courts, is also proved by that case. n29 There is, therefore, no open
question but this, does the fact of a State being a party prosecutor in the
State Court, make this case an exception, and take it out of the general rule?
Upon the plain policy and purpose of the constitution it does not. This
jurisdiction has already been shown to be different in its nature from the
original jurisdiction which was exercised over States before the amendment of
the constitution. But that other jurisdiction will go far to show, that there is
nothing unnatural in giving appellate power over State Courts in cases where a
State is a party plaintiff. The constitution authorized direct coercion over
States or private citizens indifferently. The amendment has partly taken this
away; but the spirit of the constitution is still manifested by the former
provision. The same constitution also authorized [***138] appellate
control over State Courts; and is it natural that it should condemn the same
control, merely because a State has obtained the judgment to be revised? The
constitution had no delicacy with regard to States on this matter. It considered
them as directly amenable where original jurisdiction can be exerted. Why not
empower its tribunals to affect their interests in an appellate form, by acting,
not on the State, but on its Courts, as unquestionably it does in all cases
where individuals are parties below? The appellate power is trifling, compared
with the original as it formerly stood: and a constitution which gave the last
could have no scruples about the first. The appellate control is respectful to
the State sovereignties compared with the original; and it stands upon high
considerations of self defence, upon grounds of constitutional necessity not
applicable to the other. The suability of the States might have been dispensed
with, and the constitution still be safe. But the judicial control of the Union
over State encroachments and usurpations, was indispensable to the sovereignty
of the constitution -- to its integrity -- to its very existence. Take it away,
and [***139] the Union becomes again a loose and feeble confederacy
-- a government of false and foolish confidence -- a delusion and a mockery! Why
is it in cases, in which individuals are parties in a State Court, that the
judgment may be revised in this Court? Because the judiciary of the Union ought
to possess ample power to preserve the constitution, and laws, and treaties of
the Union, from violation by other judicatures. Its judicial powers should be
commensurate with its other powers, and rights, and prerogatives. They might
else be evaded and trampled under foot by judicatures in which the constitution
does not confide. This high motive is as strong, at least, where a State is
plaintiff or prosecutor in its own Courts, as where it is not. Indeed, it is far
stronger; for all the motives to judicial leanings and partialities here operate
in their fullest force, though the State judges may not be conscious of their
influence. The sovereignty of the State law -- State pride -- State interests --
are here in paramount vigour as inducements to error; and judicial usurpation is
countenanced by legislative support and popular prejudice.Let the Court look to
the consequences of this distinction. [***140] A State passes a law
repugnant to the national constitution. It gives a remedy in the name of an
individual -- a common informer. You may control this law, if the State
judiciary acts upon it. But the State may avoid this (as it seems) by
authorizing the remedy in its own name; and you thus lose your protecting
jurisdiction over the subject, although you might still exercise it, as in the
other case, in the inoffensive mode of confining your control to the State
judiciary. The whole constitution of the Union might thus be overturned unless
force should be resorted to: and the object of the constitution was to avoid
force, by giving ordinary judicial power of correction.
n27 1 Wheat. Rep. 341.
n28 1 Wheat. Rep. 350.
n29 1 Wheat. Rep.
304.
It has been said that absovereign State of the
Union is not amenable to judicature, unless made so by express words -- eo
nomine. I deny this as respects appellate jurisdiction, which acts, not on the
State, but on its Courts. The words of the constitution are sufficiently
express, and all reason is on that side: especially since it is, or must be
admitted, that these Courts may be thus controlled, and the legislative power of
the State [***141] be reached through them, and controlled also: and
especially too, when the constitution has not scrupled, in other cases, to
subject the States to direct control.
But it is
contended, that there are cases arising under the constitution and laws of the
Union, which, from their very nature, are not the subjects of judicial
cognizance, and consequently are exceptions out of the general grant of judicial
power under the constitution; such as the prohibition to the States to grant
titles of nobility, &c.: and that the present case may be such an exception.
But the very supposition admits, that if the case in question is suited to the
exertion of judicial power, it is not an exception: and the moment a State
judiciary intervenes, judicial jurisdiction can, and ought to be exerted. It is
unnecessary to inquire how the case must, in general, exist, in order to become
the proper object of judicial cognizance; for here it does exist in a proper
shape for that purpose. A State Court has intervened, and the regular appellate
power of this Court may act. Nor does the proof of some exceptions arising from
necessity, establish other exceptions free from that necessity. Many unlawful
things [***142] cannot be restrained by judicature: but does it
follow that where they can be restrained, they shall not?
Again: It is said that the States may destroy the federal Government at
their pleasure, merely by forbearing to elect Senators, and to provide for the
election of a President and Representatives, and that the authority of the Union
is incompetent to coerce them. Such extreme arguments prove nothing to the
present purpose: but suppose the States could not be coerced in such a case to
do their duty, because no intervening Court or agent is necessary to the
accomplishment of such a desperate purpose, does this prove that you cannot
defensively control active violations of the constitution or laws, when a
controllable judicature or agent intervenes to perpetrate these violations?
It is also said, that this is a prosecution under a penal
statute, and that criminal cases peculiarly belong to the domestic forum. The
answer is, that so was the case of M'Culloch v. Maryland, a quitam action, under
a penal law of that State, giving one half of the penalty to the State, and the
other half to the informer; yet this Court did not consider the nature of the
suit, or the circumstance of a [***143] State being a party, as
forming a valid objection to the jurisdiction. n30 Nobody objects to a State
enforcing its own penal laws: all that is claimed is, that in executing them, it
should not violate the laws of the Union, which are paramount: Sic utere tuo ut
alienum non laedas.
n30 4
Wheat. Rep. 316.
The other suppositions which have been
stated of bills of attainder and ex post facto laws passed by the States, and
attempted to be executed, but decided by this Court to be unconstitutional, and
yet the State Courts persisting in carrying them into effect, even in capital
cases, are too wild and extravagant, to illustrate any question which can ever
practically arise.
OPINIONBY: MARSHALL
OPINION: [*375] [**284] 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 [***144] 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. n31
n31 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. [***145]
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 [*377] first 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 [***146] 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 [***147] 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.
[*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 [**285]
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.
[***148]
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
[*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 [***149] 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
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
[*380] any case of this description from that jurisdiction, must
sustain the exemption they claim on the spirit and true meaning of the
constitution, [***150] 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 [***151] by the same experience that this government would be
a mere shadow, that must disappoint all their hopes, unless invested with lable
portions of that sovereignty which belongs to independent States. Under the
influence of this opinion, and thus instructed by experience, [*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 [***152] 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."
[*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
[**286] 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 [***153] 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 [*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 [***154] 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."
One of the
express objects, then, for which the judicial department was established, is the
decision of controversies between States, and between a State and individuals.
The mere circumstance, that a State is a party, gives 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 [***155] 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 [*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 co-extensive with the legislative, and must be capable of
deciding [***156] 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 co-extensive with the legislative, merely because it is fit that
it should be so; but we mean to say, that this fitness furnishes an argument
[*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? [***157] 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, [*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, [***158] 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 of
those cases, which might have a baneful influence on the affairs of the nation.
[**287] 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 severa 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 [***159] 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 [*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 caes
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 [***160] 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 [*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 [***161]
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?
[*389] The counsel for Virginia endeavour to obviate the
force of these arguments by saying, that the dangers they suggest, if not
imaginary, are [***162] 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 sub-division of them. The attempt of any of the
parts to exercise it is usurpation, and ought to be repelled by those to whom
the [***163] 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
[*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
[**288] they were able to provide against the operation of measures
adopted in any one State, whose tendency might [***164] 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.
[*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 [***165] 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
[*392] instituted by a State against its own citizens,
[***166] 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, [***167] 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 [*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
endeavour 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 [***168]
character of the parties; and the nature of the controversy is not contemplated
by the constitution. The character of the parties is every thing, 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 every thing, 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
[*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 [***169] 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
[**289] 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.
[*395] But although the absence of negative words will not
authorize the legislature to disregard the distribution of the power
previously [***170] 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 [***171] 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 [*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. [***172] 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 [*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 [***173] 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 [*398] clearly not given;
[***174] 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 [***175] a State is a party, refers to those cases
[**290] 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
[*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 [***176] 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 [*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 [***177]
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 [***178] is intended to be without
[*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 [***179] 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 [*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 [***180]
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
[**291] under [*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 [***181] 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 [*404] be
violated, and [***182] 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 [***183] 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.
[*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 [***184] 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 11th amendment.
It is in these words: "The judicial power of the United
States shall not be construed to extend to any [*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 [***185] 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 [*407]
[***186] cases, because it might be essential to the preservation of
peace. The amendment, [**292] 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,
[***187] 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 [*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 [***188] 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
[*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 [***189] 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 any thing, 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
[*410] from him, [***190] 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 re-examination. 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 re-examined. 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 any thing. Essentially, it is an appeal on a single point; and
the defendant who appeals from a judgment [***191] 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 [*411] be re-examined. 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 [**293] 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 [***192] 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 re-examined, and reversed or affirmed, in like manner as
if the party had appeared and argued his cause.
The
point of view in which this writ of error, with its citation, has been
considered 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
[*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 re-examined, and affirmed or reversed. It has never been
suggested, that such writ of error was a suit [***193] 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 re-examining 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 11th amendment, it is not a suit commenced or prosecuted "by
a citizen of another State, or by a citizen or subject of any foreign State." It
is not then within the amendment, but is governed entirely by the constitution
as originally framed, and we have already seen, that in its origin, in judicial
power was extended to all cases arising under the constitution or laws of the
United States, without respect to parties.
[*413] 2d. The second objection to the jurisdiction of the
Court is, that [***194] 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 [***195] 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 [*414]
many other respects, the American people are one, and the government which is
alone capable of controling 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. American 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 [***196] 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 controling the words of the constitution?
We think it is not. We think that in a government
[*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 [***197] of the Union, has [**294] 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 [*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 [***198] 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 [***199] for the purpose of strengthening the confederation
by enlarging the powers of the government, and by giving efficacy
[*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 [***200] 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 [*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 [***201] 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
[*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,
[***202] 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, [**295] 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 [***203] of the latter
will of course be natural auxiliaries to the execution [*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 interpre ation."
A contemp
raneous 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 [***204] 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
[*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 [***205] 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 Courts of Virginia, he says it makes them Courts of
the United States, or becomes itself a part of the judiciary of Virginia.
But, it has been already shown that neither of these
consequences necessarily follows: The American people may certainly give to a
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 [*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 [***206] to perceove 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 [*423] our Union
be considered; let the [***207] 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,
[**296] 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 [***208] 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.
[*424] If the 25th section of the judiciary act be
inspected, it will at once be perceived that it comprehends expressly the case
under consideration.
But it is not upon the letter of
the act that the gentleman who stated this point in this form, founds his
argument. Both gentlemen concur substantially in their views of this part of the
case. They deny that the act of 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 8th section of the
first article, we find that of exercising exclusive legislation over such
District as shall become the seat of government. This power, like all others
which are specified, [***209] 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 2d clause of the 6th 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
[*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 [***210] 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 consequeltly of the extent [***211] of its powers. But
[*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 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 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 [***212] 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.
[*427] Let
these actual provisions 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 [***213] 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,
[**297] 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 [*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 comnission 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, [***214] 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 [*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 [***215] 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 exerclsed 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 [***216] 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.
[*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.
The cause was this
day argued on the merits.
Mr. D. B. Ogden, for the
plaintiffs in error, stated, that the question of conflict
between [***217] the act of Congress and the State law, which arose
upon the record, depended upon the 8th section of the first article of the
constitution, giving to Congress the exclusive power of legislation, in all
cases whatsoever, over the District which had become the seat of the government
of the United States, by cession from the States to whom it formerly belonged.
Under this power, Congress has authorized the establishment of a lottery at the
seat of government. Can [*431] the State of Virginia prevent the
sale of tickets in that lottery within her territory, consistently with the
constitution? This question must depend upon the nature of the constitutional
power of Congress, and of the law by which it is exercised. It was said by the
counsel for the defendant in error, on the former argument, that the power is
municipal, to be exercised over the District only, and, of course, confined in
its operation to the limits of the District.But, in order to determine whether
this is the true interpretation of the clause in question, we must more minutely
examine what is the nature of the authority granted. The clause was not intended
to give to Congress an unlimited power to legislate in [***218] all
cases, without reference to other provisions of the constitution. Otherwise
Congress might pass bills of attainder and ex post facto laws, and exercise a
despotic authority over the District of Columbia, and its citizens would thus be
deprived of their rights entirely. Nor was it intended to authorize the exercise
by congress of its general powers as a national legislature, within the
District.Nor to exempt the District from the operation of those general powers.
But the clause was inserted for the purpose of securing the independence of the
national legislature, and government, from State control. The object in view
was, therefore, strictly a national object. The District was created only for
national purposes, and every law passed [**298] for its government
is peculiarly a national law. The words, "exclusive [*432]
legislation in all cases whatsoever," were meant to exclude all State
legislative power; and to vest in Congress, in addition to its general powers
over the whole Union, all possible powers of legislation over the District. The
law in question, is the expression of the national will on a national object. It
is, then, an act of the general legislative [***219] power of the
Union, and its operation must be co-extensive with the limits of the Union,
unless it is limited to the District of Columbia in express terms, or from the
nature of the power itself being incapable of acting without the District. That
the whole Union has an interest in the City of Washington, as the national
capital, is shown by the cotemporaneous exposition of the constitution by its
framers, and by the subsequent acts of the national legislature, providing for
its improvement and embellishment. It is admitted, that some of the provisions
of the law now in question, are local in their very nature, and, therefore,
confined to the City, or the District, in their operation. But the power of the
Corporation to establish lotteries, with the consent of the President, is not of
this nature. Lottery tickets are an article of commerce, vendible in every part
of the Union, as well as in the District of Columbia. A State law which forbids
a citizen to sell or buy a ticket in a lottery, legally established by the
national legislature, for national purposes, infringes the constitutional rights
of the citizen, and tends to impede and defeat the exercise of this national
power. [***220] He cannot be punished by a State, for selling or
buying that which Congress [*433] has, in the exercise of a great
national power, authorized to be bought or sold.The authority of establishing
this lottery, so far from being confined to the City, could not be conveniently
or effectually exercised without extending the saleable quality of the tickets
throughout the Union. As a source of revenue, it would be inadequate to the
objects for which it was established, without this extension. It is not one of
the ordinary sources of revenue for the mere municipal wants of the City. It is
a national grant for national purposes, to be used in each particular instance,
with the approbation of the President. It is, then, a national law, enacted for
a national purpose, and has no other limits in its operation than the limits of
the legislative power itself. If Congress had intended to confine its operation
within the District of Columbia, they would have expressed that intention. If,
then, Congress have a right to raise a revenue, for any national purpose, by
establishing a lottery, they had a right to establish this lottery; and no State
law can defeat this, any more than the exercise [***221] of any other
national power. But even supposing that it is not a tax or duty, such as
Congress have the express power of establishing; yet if it be necessary and
proper, in the judgment of the Court, to carry into effect any power expressly
granted, such as that of establishing and governing the City, it may be
exercised throughout the Union. Congress have the same power to establish
lotteries for this purpose, as the State legislatures, and every other
legislature, have. The only difference is, that [*434] with Congress
it is the exercise of a national power, and must, therefore, be co-extensive in
its operation with the Union, although the money to be raised by it cannot be
applied to the use of any other City in the Union than that which is the
national capital, and in which, consequently, all the States, and all the
people, have a common interest.
Mr. Webster, contra,
insisted, that Congress had not the power, under the constitution, of
establishing a lottery in the District of Columbia, for municipal purposes, and
of forcing the sale of the tickets throughout the Union, in contravention of the
State laws; and, that even if they had the power, the law now in question
did [***222] not purport to authorize the Corporation of the City of
Washington thus to force the sale of the tickets. It is clear that Congress, as
a legislative body, exercise two species of legislative power: the one, limited
as to its objects, but extending all over the Union: the other, an absolute,
exclusive legislative power over the District of Columbia. The preliminary
inquiry in the case now before the Court, is, by virtue of which of these
authorities was the law in question passed? When this is ascertained, we shall
be able to determine its extent and application. In this country, we are trying
the novel experiment of a divided sovereignty, between the national government
and the States. The precise line of division between these is not always
distinctly marked. Government is a moral not a mathematical science; and the
powers of such a government especially, cannot be defined with mathematical
[*435] accuracy and precision. There is a competition of opposite
analogies.We arrive at a just conclusion by reasoning from these analogies, and
by a general regard to the objects and purposes of this scheme of government.
With a view to the present question, it may, perhaps, be [***223]
safely admitted, that there are certain acts of legislation passed by Congress,
with a local reference to this District, which proceed from the general powers
with which Congress are invested. They are local in their immediate operation
and effect, but they are passed in virtue of general legislative powers. Such
are the acts appropriating moneys for constructing the navy yard and the
capitol. Some other acts are of a mixed nature. There are others clearly local,
and passed in virtue of the local, exclusive jurisdiction. And of this latter
class is the act now under consideration. It is for the establishment of a local
City government, which arises from the exclusive power of legislation; and the
clause authorizing the establishment of lotteries, is combined with other
clauses of a mere municipal character: Noscitur a sociis. Every act of
legislation must be limited by its subject matter, and there is nothing to show
that this power is to be exercised more extensively than the other powers of the
Corporation; nothing to show that this municipal power is to be carried beyond
the City. It may be exercised within the City alone, and Congress has not said,
and the Court cannot intend, [***224] that it is to be exercised in
other parts of the Union. Congress could not give such a charter to any other
city in the Union, and if every federal [*436] power granted in the
constitution were destroyed, this power would remain. It exists independently,
and [**299] the legislative powers of the States can never conflict
with it, because it can never operate within the States. Being a case of mere
local legislation, it is not a casus faederis within that clause of the
constitution which declares that the laws of the United States shall be the
supreme law of the land.There can be no question of supremacy and subordination
where there is no connection or conflict. The constitution makes this provision,
because other legislative powers were to operate throughout the Union; the
Congress and the States were to legislate over the same subjects, and over the
same territory; and therefore there might be conflict. It was because the two
codes were to prevail in the same places, and over the same persons. But the
provision cannot extend to laws enacted by Congress for the mere local municipal
government of the City, because the reason on which it is founded does not
extend to [***225] a case where all legislation is necessarily
exclusive. There was no more reason in this instance to provide for a conflict
of the two authorities, than in the case of the laws of a foreign State, which,
except in the familiar example of questions relative to the lex loci contractus,
cannot come in collision with out own laws, because they cannot operate
extra-territorially. So here, from the very nature of things, there can arise no
conflict between the local laws of the District of Columbia, and those of the
States, because each code is confined to its own territory. Any sound
interpretation of the law [*437] in question, must limit it to the
City of Washington. It does nto even extend to the other municipal Corporations
within the District of Columbia, because it contains provisions expressly for
the government of Washington alone, and does not profess to extend any of them
beyond the limits of that City. A law cannot exceed the authority of the
lawgiver, and that does not extend beyond the District, and is limited in its
actual exercise to the City. There is no authority showing that a grant of power
of this kind to a municipal Corporation, extends beyond the local
limits [***226] of the City.
The
Attorney-General, for the plaintiffs in error, in reply, contended, that
Congress, in passing the law under consideration, acted in the name of the whole
nation, and for a great national object. Congress did not, as contended in the
argument on the jurisdiction of the Court, succeed, by the cession, merely to
the legislative powers of Maryland and Virginia, over this District.They are not
the trustees of those States only; they are the trustees of the whole nion. The
cession was to the Congress and government of the United States. The
jurisdiction over the territory belongs to the entire people of the United
States. It is not the power of Maryland and Virginia which Congress represents,
but the power of all the States; and the territory ceded is to be looked at, not
with reference to its origin, not as still forming ideally a part of Maryland
and Virginia, but is to be regarded as if incorporated into every State in the
Union. The question is not, then, to be solved by asking [*438] what
those States could do with respect to this territory, but what each State of the
Union could do with regard to its own territory: because, to borrow an
expression from the [***227] municipal law, each State of the Union
is seized jointly with all the rest, per me et per tout, of the whole
jurisdiction over this territory. The acts of the Congress in legislating for
the District of Columbia are the acts of all the people of all the States. It is
therefore a fallacy in argument to represent Congress as succeeding merely to
the same degree of power which Maryland and Virginia formerly had over this
territory. Could those States have taxed the other States, or borrowed money on
their credit, for the improvement of this territory, as Congress have done?
Although the jurisdiction of the States who formerly held the sovereignty and
domain of this territory has been supplanted by Congress, the substituted
jurisdiction is far more extensive than that which they held. It is a
jurisdiction, which in the instances mentioned, and many others which might be
enumerated, is capable of affecting all the States. It cannot be denied that the
character of the jurisdiction which Congress has over the District, is widely
different from that which it has over the States; for, over them, Congress has
not exclusive jurisdiction. Its powers over the States are those only
which [***228] are specifically given, and those which are necessary
to carry them into effect: whilst over the District it has all the powers which
it has over the States, and in addition to these, a power of legislation
exclusive of [*439] all the States. But although the jurisdiction
over the District is of a different and more extensive character, yet it is not
so circumscribed that it may not incidentally affect the States, although
exerted for a local purpose, as it is called. Such is sometimes the delusive
effect of single words and phrases, that the position, that in legislating for
the District of Columbia, Congress is a local legislature, for local purposes,
and therefore cannot affect the States by its laws, has almost become an
aphorism with indolent or prejudiced inquirers. But in what sense can that be
called a local government which proceeds from the whole body of the nation? And
how can that be termed a local object, which is closely and inseparably
connected with the general interest of the whole people of the Union? As well
might it be asserted that Congress acted as a local legislature, when it
established offices for the sale of lands in the western States, or
fortifications [***229] at particular points on the sea-coast. It
will not be pretended that the first establishment of the seat of government in
this District, was an act done by Congress in its character of a local
legislature, and for local purposes. How then can the subsequent acts for the
improvement and embellishment of the City be so regarded? The act of May 6th,
1796, authorized the commissioners for erecting the public buildings to borrow
money for that purpose. Would it have been competent for the legislatures of the
States to have impeded this loan by punishing their citizens for subscribing to
this stock? And could the States prohibit the sale of the City lots within their
territory, and thus arrest [*440] the improvement of the City? And
if they could not, is it not because what Congress in the legitimate exercise of
its powers has made it lawful to sell, the States cannot make it unlawful to
buy? Let us test [**300] by these considerations the question before
the Court: and let us distinguish between Congress legislating for the municipal
government of the City, and Congress, in its national character, providing the
means of adding necessary public improvements to the
national [***230] capital. Congress has itself made this distinction.
When a regulation for the mere internal police of the City is to be made, it is
done by the Corporation, or some other inferior agent, without the interference
of the President of the United States. But, when an alteration of the plan of
the City, or a public improvement affecting the whole of the City in a national
point of view, is to be made, it is uniformly subjected to the control of the
President. So here the specific purpose in view, and for which the lottery was
authorized by the President, was, the establishment of a City Hall. a necessary
consequence of the establishment of the City, which last was also a necessary
consequence of the establishment of the seat of government.
The opinion of the Court was delivered by Mr. Chief Justice
MARSHALL.
This case was stated in the opinion given on
the motion for dismissing the writ of error for want of jurisdiction in the
Court. It now comes on to be decided on the question whether the Borough Court
of Norfolk, in overruling the 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 [***231] 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 [***232] of them local in their nature, and all of them such as
would, in the common course of things, if not necessarily, be exercised
[*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 extra-territorial 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 [***233] 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,
[*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 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. [***234]
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 [*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. [***235] In the City of
Washington, the great metropolis of the nation, visited by individuals, from
every part of [**301] 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.
[*445] In addition to the very important circumstance, that
the act contains no words indicating [***236] 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 [***237] the
proceeds are to be applied. This Corporation is a being intended for local
objects only. All its capacites are limited to the City. This, as well as every
other law it is capable of making, is a by-law, and, from its nature, is only
co-extensive with the City. It is not probable that [*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 [***238] 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.
[*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 [***239] 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.
[*448] JUDGMENT. This cause came on to be heard on the
transcript of the record of the Quarterly Session Court for the Borough of
Norfolk, in the Commonwealth of Virginia, and was argued by counsel. On
consideration whereof, it is ADJUDGED and ORDERED, that the judgment of the said
Quarterly Session [***240] Court for the Borough of Norfolk, in this
case, be, and the same is hereby affirmed, with costs.