U.S. Supreme Court

Cohens v. Virginia, 19 U.S. 6 Wheat.264 264 (1821)Cohens v. Virginia

19 U.S. (6 Wheat.)264

Syllabus

This Court has, constitutionally, appellate jurisdiction underthe Judiciary Act of 1789, c. 20, § 25, from the final judgment ordecree of the highest court of law or equity of a state, havingjurisdiction of the subject matter of the suit, where is drawn inquestion the validity of a treaty, or statute of, or an authorityexercised under, the United State, and the decision is againsttheir validity; or where is drawn in question the validity of astatute of, or an authority exercised under, any state, on theground of their being repugnant to the Constitution, treaties, orlaws of the United States, and the decision is in favor of such,their validity; or of the constitution, or of treaty, or statuteof, or commission held under the United States, and the decision isagainst the title, right, privilege, or exemption specially set upor claimed, by either party under such clause of the constitution,treaty, statute, or commission.

It is no objection to the exercise of this appellatejurisdiction that one of the parties is a state and the other acitizen of that state.

The act of Congress of the 4th of May, 1812, entitled "an actfurther to amend the charter of the City of Washington," whichprovides, (§ 6) that the corporation of the city shall beempowered, for certain purposes, and under certain restrictions, toauthorize the drawing of lotteries, does not extend to authorizethe corporation to force the sale of the tickets in such lottery instates where such sale may be prohibited by the state laws.

Page 19 U. S. 265

This was a writ of error to the Quarterly Session Court for theborough of Norfolk, in the State of Virginia, under thetwenty-fifth section of the Judiciary Act of 1789, c. 20, it beingthe highest Court of law or equity of that State havingjurisdiction of the case.

"Pleas at the Court House of Norfolk borough, before the Mayor,Recorder, and Aldermen of the said borough, on Saturday, the secondday of September, one thousand eight hundred and twenty, and in theforty-fifth year of the Commonwealth."

"Be it remembered, that heretofore, to-wit, at a QuarterlySession Court, held the twenty-sixth day of June, one thousandeight hundred and twenty, the grand jury, duly summoned andimpaneled for the said borough of Norfolk, and sworn and chargedaccording to law, made a presentment in these words:"

" We present P. J. and M. J. Cohen, for vending and selling twohalves and four quarter lottery tickets of the National Lottery, tobe drawn at Washington, to William H. Jennings, at their office atthe corner of Maxwell's wharf, contrary to the act thus made andprovided in that case, since January, 1820. On the information ofWilliam H. Jennings. "

Page 19 U. S. 266

"Whereupon the regular process of law was awarded against thesaid defendants, to answer the said presentment, returnable to thenext succeeding term, which was duly returned by the Sergeant ofthe borough of Norfolk -- 'Executed.'"

And at another Quarterly Session Court, held for the saidborough of Norfolk, the twenty-ninth day of August, one thousandeight hundred and twenty, came as well the attorney prosecuting forthe Commonwealth in this Court as the defendants, by theirattorney, and on the motion of the said attorney, leave is given bythe Court to file an information against the defendants on thepresentment aforesaid, which was accordingly filed, and is in thesewords:

" Norfolk borough, to-wit: Be it remembered, that James Nimmo,attorney for the Commonwealth of Virginia, in the Court of the saidborough of Norfolk, cometh into Court, in his proper person, andwith leave of the Court, giveth the said Court to understand and beinformed that, by an act of the General Assembly of the saidCommonwealth of Virginia entitled, 'An act to reduce into one theseveral acts, and parts of acts to prevent unlawful gaming.' It is,among other things, enacted and declared, that no person or personsshall buy, or sell, within the said Commonwealth, any lottery, orpart or share of a lottery ticket, except in such lottery orlotteries as may be authorized by the laws thereof, and the saidJames Nimmo, as attorney aforesaid, further giveth the Court tounderstand and be informed, that P. J. and M. J. Cohen, traders andpartners, late of the parish of Elizabeth River, and

Page 19 U. S. 267

borough of Norfolk aforesaid, being evil disposed persons, andtotally regardless of the laws and statutes of the saidCommonwealth, since the first day of January, in the year of ourLord one thousand eight hundred and twenty, that is to say, on thefirst day of June, in that year, and within the said Commonwealthof Virginia, to-wit, at the parish of Elizabeth River, in the saidborough of Norfolk, and within the jurisdiction of this Court, didthen and there unlawfully vend, sell, and deliver to a certainWilliam H. Jennings, two half lottery tickets, and four quarterlottery tickets, of the National Lottery, to be drawn in the Cityof Washington, that being a lottery not authorized by the laws ofthis Commonwealth, to the evil example of all other persons, in thelike case offending, and against the form of the act of the GeneralAssembly, in that case made and provided."

JAMES NIMMO, for the Commonwealth.

"And at this same Quarterly Session Court, continued byadjournment, and held for the said borough of Norfolk, the secondday of September, eighteen hundred and twenty, came, as well theattorney prosecuting for the Commonwealth, in this Court, as thedefendants, by their attorney, and the said defendants, for plea,say, that they are not guilty in manner and form as in theinformation against them is alleged, and of this they putthemselves upon the country, and the attorney for the Commonwealthdoth the same; whereupon a case

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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 bythe parties in lieu of a special verdict: that the defendants, onthe first day of June, in the year of our Lord eighteen hundred andtwenty, within the borough of Norfolk, in the Commonwealth ofVirginia, sold to William H. Jennings a lottery ticket in thelottery called and denominated the National Lottery, to be drawn inthe City of Washington, within the District of Columbia."

"That the General Assembly of the State of Virginia enacted astatute, or act of Assembly, which went into operation on the firstday of January, in the year of our Lord 1820, and which is stillunrepealed, 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 oradventured for, or any prize or thing to be raffled or played for,and whosoever shall offend herein shall forfeit the whole sum ofmoney proposed to be raised by such lottery, raffling or playing,to be recovered by action of debt in the name of anyone who shallsue for the same, or by indictment or information in the name ofthe Commonwealth, in either case, for the use and benefit of theliterary fund. Nor shall any person or persons buy or sell withinthis Commonwealth any lottery ticket, or part or share of a lotteryticket, except in such lottery or lotteries as may be authorized bythe laws

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thereof; and any person or persons offending herein, shallforfeit and pay, for every such offence, the sum of one hundreddollars, to be recovered and appropriated in manner lastaforesaid."

"That the Congress of the United States enacted a statute on thethird day of May, in the year of our Lord 1802, entitled, An Act,&c. in the words and figures following:"

" An Act to incorporate the inhabitants of the City ofWashington, in the District of Columbia."

" Be it enacted by the Senate and House of Representatives ofthe United States of America, in Congress assembled, That theinhabitants of the City of Washington be constituted a body politicand corporate, by the name of a Mayor and Council of the City ofWashington, and by their corporate name may sue and be sued,implead and be impleaded, grant, receive, and do all other acts asnatural persons, and may purchase and hold real, personal and mixedproperty, 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 orwards, as now divided by the Levy Court for the county, for thepurposes of assessment; but the number may be increased hereafter,as in the wisdom of the City Council shall seem most conducive tothe general interest and convenience."

" Sec. 2. And be it further enacted, That the Council of theCity of Washington shall consist of twelve

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members, residents of the city, and upwards of twenty-five yearsof age, to be divided into two chambers; the first chamber toconsist of seven members, and the second chamber of five members;the second chamber to be chosen from the whole number ofcouncillors, elected by their joint ballot. The City Council to beelected annually by ballot, in a general ticket, by the free whitemale inhabitants of full age, who have resided twelve months in thecity, and paid taxes therein the year preceding the elections beingheld: the justices of the county of Washington, resident in thecity, or any three of them, to preside as judges of election, withsuch associates as the council may from time to time appoint."

" Sec. 3. And be it further enacted, That the first election ofmembers of the City Council, shall be held on the first Monday inJune next, and in every year afterwards, at such place in each wardas the judges of the election may prescribe."

" Sec. 4. And be it further enacted, That the polls shall bekept open from eight o'clock in the morning, till seven o'clock inthe evening, and no longer, for the reception of ballots. On theclosing of the poll, the judges shall close and seal their ballotboxes, and meet on the day following, in the presence of theMarshal of the District, on the first election, and the councilafterwards, when the seals shall be broken, and the votes counted:within three days after such election, they shall give notice tothe persons having the greatest number of legal votes, that theyare duly elected, and shall make their return to the Mayor of thecity. "

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" Sec. 5. And be it. further enacted, That the Mayor of the cityshall be appointed annually by the President of the United States;he must be a citizen of the United States, and a resident of thecity prior to his appointment."

" Sec. 6. And be it further enacted, That the City Council shallhold their sessions in the City Hall, or until such building iserected, in such place as the Mayor may provide for that purpose,on the second Monday in June, in each year; but the Mayor mayconvene them oftener, if the public good require theirdeliberations; three fourths of the members of each Council, may bea quorum to do business, but a smaller number may adjourn from dayto day: they may compel the attendance of absent members in suchmanner, and under such penalties, as they may, by ordinance,provide: they shall appoint their respective Presidents, who shallpreside during their sessions, and shall vote on all questionswhere there is an equal division: they shall settle their rules ofproceedings, appoint their own officers, regulate their respectivefees, and remove them at pleasure: they shall judge of theelections, returns, and qualifications of their own members, andmay, with the concurrence of three-fourths of the whole, expel anymember for disorderly behaviour, or malconduct in office, but not asecond time for the same offence: they shall keep a journal oftheir proceedings, and enter the yeas and nays on any question,resolve or ordinance, at the request of any member, and theirdeliberations shall be public. The Mayor shall appoint to alloffices under the Corporation. All ordinances

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or acts passed by the City Council, shall be sent to the Mayorfor his approbation, and when approved by him, shall then beobligatory as such. But, if the said Mayor shall not approve ofsuch ordinance or act, he shall return the same within five days,with his reasons in writing therefor; and if three-fourths of bothbranches of the City Council, on reconsideration thereof, approveof the same, it shall be in force in like manner as if he hadapproved it, unless the City Council, by their adjournment, preventits return."

" Sec. 7. And be it further enacted, That the Corporationaforesaid shall have full power and authority to pass all by-lawsand ordinances to prevent and remove nuisances; to prevent theintroduction of contagious diseases within the City; to establishnight watches or patrols, and erect lamps; to regulate thestationing, anchorage, and mooring of vessels; to provide forlicensing and regulating auctions, retailers of liquors, hackneycarriages, waggons, carts and drays, and pawn-brokers within thecity; to restrain or prohibit gambling, and to provide forlicensing, regulating, or restraining theatrical or other publicamusements within the City; to regulate and establish markets; toerect and repair bridges; to keep in repair all necessary streets,avenues, drains and sewers, and to pass regulations necessary forthe preservation of the same, agreeably to the plan of the saidCity; to provide for the safe keeping of the standard of weightsand measures fixed by Congress, and for the regulation of allweights and measures used in the City; to provide

Page 19 U. S. 273

for the licensing and regulating the sweeping of chimneys, andfixing the rates thereof; to establish and regulate fire wards andfire companies; to regulate and establish the size of bricks thatare to be made and used in the City; to sink wells, and erect andrepair pumps in the streets; to impose and appropriate fines,penalties and forfeitures for breach of their ordinances; to layand collect taxes; to enact by-laws for the prevention andextinguishment of fires; and to pass all ordinances necessary togive effect and operation to all the powers vested in theCorporation of the City of Washington: Provided, That the by-laws,or ordinances of the said Corporation, shall be in no wiseobligatory upon the persons of nonresidents of the said City,unless in cases of intentional violation of the by-laws orordinances previously promulgated. All the fines, penalties andforfeitures imposed by the Corporation of the City of Washington,if not exceeding twenty dollars, shall be recovered before a singlemagistrate, as small debts are by law recoverable; and if suchfines, penalties and forfeitures, exceed the sum of twenty dollars,the same shall be recovered by action of debt, in the DistrictCourt of Columbia, for the County of Washington, in the name of theCorporation, and for the use of the City of Washington."

" Sec. 8. And be it further enacted, That the person or personsappointed to collect any tax imposed in virtue of the powersgranted by this Act shall have authority to collect the same bydistress and sale of the goods and chattels of the personchargeable therewith; no sale shall be made unless ten days'

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previous notice thereof be given: no law shall be passed by theCity Council subjecting vacant or unimproved city lots, or parts oflots, to be sold for taxes."

" Sec. 9. And be it further enacted, That the City Council shallprovide for the support of the poor, infirm and diseased of theCity."

" Sec. 10. Provided always, and be it further enacted, That notax shall be imposed by the City Council on real property in thesaid City, at any higher rate than three quarters of one per centumon the assessment valuation of such property."

" Sec. 11. And be it further enacted, That this Act shall be inforce for two years from the passing thereof, and from thence tothe end of the next session of Congress thereafter, and nolonger."

"And another act, on the 23d day of February, 1804, entitled 'AnAct supplementary to an Act, entitled, an Act to incorporate theinhabitants of the City of Washington, in the District ofColumbia.'"

" Be it enacted by the Senate and House of Representatives ofthe United States of America, in Congress assembled, That the Act,entitled, an Act to incorporate the inhabitants of the City ofWashington, in the District of Columbia, except so much of the sameas is consistent with the provisions of this Act, be, and the sameis hereby continued in force, for and during the term of fifteenyears from the end of the next session of Congress."

" Sec. 2. And be it further enacted, That the Council of theCity of Washington, from and after the

Page 19 U. S. 275

period for which the members of the present Council have beenelected, shall consist of two chambers, each of which shall becomposed of nine members, to be chosen by distinct ballots,according to the directions of the Act to which this is asupplement; a majority of each chamber shall constitute a quorum todo business. In case vacancies shall occur in the Council, thechamber in which the same may happen shall supply the same by anelection by ballot from the three persons next highest on the listto those elected at the preceding election, and a majority of thewhole number of the chamber in which such vacancy may happen, shallbe necessary to make an election."

" Sec. 3. And be it further enacted, That the Council shall havepower to establish and regulate the inspection of flour, tobacco,and salted provisions, the gauging of casks and liquors, thestorage of gunpowder, and all naval and military stores, not theproperty of the United States, to regulate the weight and qualityof bread, to tax and license hawkers and peddlers, to restrain orprohibit tippling houses, lotteries, and all kinds of gaming, tosuperintend the health of the City, to preserve the navigation ofthe Potomac and Anacostia rivers adjoining the City, to erect,repair, and regulate public wharves, and to deepen docks andbasins, to provide for the establishment and superintendence ofpublic schools, to license and regulate, exclusively, hackneycoaches, ordinary keepers, retailers and ferries, to provide forthe appointment of inspectors, constables, and such other officersas may be necessary to execute the

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laws of the Corporation, and to give such compensation to theMayor of the City as they may deem fit."

" Sec. 4. And be it further enacted, That the Levy Court of thecounty of Washington shall not hereafter possess the power ofimposing 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, AnAct further to amend the Charter of the City of Washington."

" Be it enacted by the Senate and House of Representatives ofthe United States of America, in Congress assembled, That from andafter the first Monday in June next, the Corporation of the City ofWashington shall be composed of a Mayor, a Board of Aldermen, and aBoard of Common Council, to be elected by ballot, as hereafterdirected; the Board of Aldermen shall consist of eight members, tobe elected for two years, two to be residents of, and chosen from,each ward, by the qualified voters therein; and the Board of CommonCouncil shall consist of twelve members, to be elected for oneyear, three to be residents of, and chosen from, each ward, inmanner aforesaid: and each board shall meet at the Council Chamberon the second Monday in June next, (for the despatch of business)at ten o'clock in the morning, and on the same day, and at the samehour, annually, thereafter. A majority of each board shall benecessary to form a quorum to do business, but a less number mayadjourn from day to day. The Board of Aldermen, immediately afterthey shall

Page 19 U. S. 277

have assembled in consequence of the first election, shalldivide themselves by lot into two classes; the seats of the firstclass shall be vacated at the expiration of one year, and the seatsof the second class shall be vacated at the expiration of twoyears, so that one half may be chosen every year. Each board shallappoint its own President from among its own members, who shallpreside during the sessions of the board, and shall have a castingvote on all questions where there is an equal division; providedsuch equality shall not have been occasioned by his previousvote."

" Sec. 2. And be it further enacted, That no person shall beeligible to a seat in the Board of Aldermen or Board of CommonCouncil, unless he shall be more than twenty-five years of age, afree white male citizen of the United States, and shall have been aresident of the City of Washington one whole year next precedingthe day of the election; and shall, at the time of his election, bea resident of the ward for which he shall be elected, and possessedof a freehold estate in the said City of Washington, and shall havebeen assessed two months preceding the day of election. And everyfree white male citizen of lawful age, who shall have resided inthe City of Washington for the space of one year next preceding theday of election, and shall be a resident of the ward in which heshall offer to vote, and who shall have been assessed on the booksof the Corporation, not less than two months prior to the day ofelection, shall be qualified to vote for members to serve in thesaid Board of Aldermen and Board of Common

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Council, and no other person whatever shall exercise the rightof suffrage at such election."

" Sec. 3. And be it further enacted, That the present Mayor ofthe City of Washington shall be, and continue such, until thesecond Monday in June next, on which day, and on the second Mondayin June annually thereafter, the Mayor of the said City shall beelected by ballot of the Board of Aldermen and Board of CommonCouncil, in joint meeting, and a majority of the votes of all themembers of both boards shall be necessary to a choice; and if thereshould be an equality of votes between two persons after the thirdballot, the two houses shall determine by lot. He shall, before heenters upon the duties of his office, take an oath or affirmationin the presence of both boards, 'lawfully to execute the duties ofhis office to the best of his skill and judgment, without favour orpartiality.' He shall, ex officio, have, and exercise all thepowers, authority, and jurisdiction of a Justice of the Peace, forthe County of Washington, within the said county. He shallnominate, and with the consent of a majority of the members of theBoard of Aldermen, appoint to all offices under the Corporation(except the commissioners of elections), and every such officershall be removed from office on the concurrent remonstrance of amajority of the two boards. He shall see that the laws of theCorporation be duly executed, and shall report the negligence ormisconduct of any officer to the two boards. He shall appointproper persons to fill up all vacancies during the recess of theBoard of Aldermen, to hold such

Page 19 U. S. 279

appointment until the end of the then ensuing session. He shallhave power to convene the two Boards, when, in his opinion, thegood of the community may require it, and he shall lay before them,from time to time, in writing, such alterations in the laws of theCorporation as he shall deem necessary and proper, and shallreceive for his services annually, a just and reasonablecompensation, to be allowed and fixed by the two boards, whichshall neither be increased or diminished during the period forwhich he shall have been elected. Any person shall be eligible tothe office of Mayor who is a free white male citizen of the UnitedStates, who shall have attained to the age of thirty years, and whoshall be a bona fide owner of a freehold estate in the said City,and shall have been a resident in the said City two yearsimmediately preceding his election, and no other person shall beeligible to the said office. In case of the refusal of any personto accept the office of Mayor, upon his election thereto, or of hisdeath, resignation, inability or removal from the City, the saidtwo boards shall elect another in his place, to serve the remainderof the year."

" Sec. 4. And be it further enacted, That the first election formembers of the Board of Aldermen, and Board of Common Council,shall be held on the first Monday in June next, and on the firstMonday in June annually thereafter. The first election to be heldby three commissioners to be appointed in each ward by the Mayor ofthe City, and at such place in each ward as he may direct; and allsubsequent elections shall be held by a like number

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of Commissioners, to be appointed in each ward by the twoboards, in joint meeting, which several appointments, except thefirst, shall be at least ten days previous to the day of eachelection. And it shall be the duty of the Mayor for the firstelection, and of the commissioners for all subsequent elections, togive at least five days public notice of the place in each wardwhere such elections are to be held. The said commissioners shall,before they receive any ballot, severally take the following oathor affirmation, to be administered by the Mayor of the City, or anyJustice of the Peace for the county of Washington: 'I, A. B. dosolemnly swear or affirm, (as the case may be) that I will trulyand faithfully receive, and return the votes of such persons as areby law entitled to vote for members of the Board of Aldermen, andBoard of Common Council, in ward No. ___, according to the best ofmy judgment and understanding, and that I will not, knowingly,receive or return the vote of any person who is not legallyentitled to the same, so help me God.' The polls shall be opened atten o'clock in the morning, and be closed at seven o'clock in theevening, of the same day. Immediately on closing the polls, thecommissioners of each ward, or a majority of them, shall count theballots, and make out under their hands and seals a correct returnof the two persons for the first election, and of the one personfor all subsequent elections, having the greatest number of legalvotes, together with the number of votes given to each, as membersof the Board of Aldermen: and of the three persons having thegreatest number of legal

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votes, together with the number of votes given to each, asMembers of the Board of Common Council. And the two persons at thefirst election, and the one person at all subsequent elections,having the greatest number of legal votes for the Board ofAldermen; and the three persons having the greatest number of legalvotes for the Board of Common Council, shall be duly elected; andin all cases of an equality of votes, the commissioners shalldecide by lot. The said returns shall be delivered to the Mayor ofthe City, on the succeeding day, who shall cause the same to bepublished in some newspaper printed in the city of Washington. Aduplicate return, together with a list of the persons who voted atsuch election, shall also be made by the said commissioners, to theRegister of the City, on the day succeeding the election, who shallpreserve and record the same, and shall, within two daysthereafter, notify the several persons so returned, of theirelection; and each board shall judge of the legality of theelections, returns and qualifications of its own members, and shallsupply vacancies in its own body, by causing elections to be madeto fill the same, in the ward, and for the Board in which suchvacancies shall happen, giving at least five days notice previousthereto; and each Board shall have full power to pass all rulesnecessary and requisite to enable itself to come to a just decisionin cases of a contested election of its own members: and theseveral members of each Board shall, before entering upon theduties of their office, take the following oath or affirmation:

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'I do swear (or solemnly, sincerely, and truly affirm anddeclare, as the case may be) that I will faithfully execute theoffice of to the best of my knowledge and ability,' which oath oraffirmation shall be administered by the Mayor, or some Justice ofthe Peace, for the county of Washington."

" Sec. 5. And be it further enacted, That in addition to thepowers heretofore granted to the Corporation of the City ofWashington, by an act, entitled, 'An Act to incorporate theinhabitants of the City of Washington, in the District ofColumbia,' and an act, entitled, 'An Act, supplementary to an act,entitled, an act to incorporate the inhabitants of the City ofWashington, in the District of Columbia,' the said Corporationshall have power to lay taxes on particular wards, parts, orsections of the City, for their particular local improvements."

" That after providing for all objects of a general nature, thetaxes raised on the assessable property in each ward, shall beexpended therein, and in no other; in regulating, filling up andrepairing of streets and avenues, building of bridges, sinking ofwells, erecting pumps, and keeping them in repair; in conveyingwater in pumps, and in the preservation of springs; in erecting andrepairing wharves; in providing fire engines and other apparatusfor the extinction of fires, and for other local improvements andpurposes, in such manner as the said Board of Aldermen and Board ofCommon Council shall provide; but the sums raised for the supportof the poor,

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aged and infirm, shall be a charge on each ward in proportion toits population or taxation, as the two Boards shall decide. Thatwhenever the proprietors of two-thirds of the inhabited houses,fronting on both sides of a street, or part of a street, shall bypetition to the two branches, express the desire of improving thesame, by laying the curbstone of the foot pavement, and paving thegutters or carriage way thereof, or otherwise improving saidstreet, agreeably to its graduation, the said Corporation shallhave power to cause to be done at any expense, not exceeding twodollars and fifty cents per front foot, of the lots fronting onsuch improved street or part of a street, and charge the same tothe owners of the lots fronting on said street, or part of astreet, in due proportion; and also on a like petition to providefor erecting lamps for lighting any street or part of a street, andto defray the expense thereof by a tax on the proprietors orinhabitants of such houses, in proportion to their rental orvaluation, as the two Boards shall decide."

" Sec. 6. And be it further enacted, That the said Corporationshall have full power and authority to erect and establishhospitals 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 expensesthereof; to regulate party and other fences, and to determine bywhom the same shall be made and kept in repair; to lay openstreets, avenues, lanes and alleys, and to regulate or prohibit allinclosures thereof, and to occupy and improve for public purposes,by

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and with the consent of the President of the United States, anypart of the public and open spaces or squares in said city, notinterfering with any private rights; to regulate the measurementof, and weight, by which all articles brought into the city forsale shall be disposed of; to provide for the appointment ofappraisers, and measurers of builders' work and materials, and alsoof wood, coal, grain and lumber; to restrain and prohibit thenightly and other disorderly meetings of slaves, free negroes andmulattoes, and to punish such slaves by whipping, not exceedingforty stripes, or by imprisonment not exceeding six calendarmonths, for any one offence; and to punish such free negroes andmulattoes for such offences, by fixed penalties, not exceedingtwenty dollars for any one offence; and in case of inability of anysuch free negro or mulatto to pay and satisfy and such penalty andcosts thereon, to cause such free negro or mulatto to be confinedto labour for such reasonable time, not exceeding six calendarmonths, for any one offence, as may be deemed equivalent to suchpenalty and costs; to cause all vagrants, idle or disorderlypersons, all persons of evil life or ill fame, and all such as haveno visible means of support, or are likely to become chargeable tothe City as paupers, or are found begging or drunk in or about thestreets, or loitering in or about tippling houses, or who can showno reasonable cause of business or employment in the City; and allsuspicious persons, and all who have no fixed place of residence,or cannot give a good account of themselves, all eves-droppers andnight walkers, all who

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are guilty of open profanity, or grossly indecent language orbehaviour publicly in the streets, all public prostitutes, and suchas lead a notoriously lewd or lascivious course of life, and allsuch as keep public gaming tables, or gaming houses, to givesecurity for their good behaviour for a reasonable time, and toindemnify the City against any charge for their support, and incase of their refusal or inability to give such security, to causethem to be confined to labour for a limited time, not exceeding oneyear at a time, unless such security should be sooner given. But ifthey shall afterwards be found again offending, such security maybe again required, and for want thereof, the like proceedings mayagain be had, from time to time, as often as may be necessary; toprescribe the terms and conditions upon which free negroes andmulattoes, and others who can show no visible means of support, mayreside in the City; to cause the avenues, streets, lanes and alleysto be kept clean, and to appoint officers for that purpose. Toauthorize the drawing of lotteries for effecting any importantimprovement in the City, which the ordinary funds or revenuethereof will not accomplish. Provided, That the amount to be raisedin each year, shall not exceed the sum of ten thousand dollars: Andprovided also, that the object for which the money is intended tobe raised shall be first submitted to the President of the UnitedStates, and shall be approved of by him. To take care of, preserveand regulate the several burying grounds within the City; toprovide for registering of births, deaths and marriages; to causeabstracts or minutes

Page 19 U. S. 286

of all transfers of real property, both freehold and leasehold,to be lodged in the Registry of the City, at stated periods; toauthorize night watches and patroles, and the taking up andconfining by them, in the night time, of all suspected persons; topunish by law corporally any servant or slave guilty of a breach ofany of their by-laws or ordinances, unless the owner or holder ofsuch servant or slave shall pay the fine annexed to the offence;and to pass all laws which shall be deemed necessary and proper forcarrying into execution the foregoing powers, and all other powersvested in the Corporation, or any of its officers, either by thisact, or any former act."

" Sec. 7. And be it further enacted, That the Marshal of theDistrict of Columbia shall receive, and safely keep, within thejail for Washington county, at the expense of the City, all personscommitted thereto under the sixth section of this act, until otherarrangements be made by the Corporation for the confinement ofoffenders, within the provisions of the said section; and in allcases where suit shall be brought before a Justice of the Peace,for the recovery of any fine or penalty arising or incurred for abreach of any by-law or ordinance of the Corporation, upon a returnof 'nulla bona' to any fieri facias issued against the property ofthe defendant or defendants, it shall be the duty of the Clerk ofthe Circuit Court for the County of Washington, when required, toissue a writ of capias ad satisfaciendum against every suchdefendant, returnable to the next Circuit Court for the County ofWashington thereafter,

Page 19 U. S. 287

and which shall be proceeded on as in other writs of the likekind."

" Sec. 8. And be it further enacted, That unimproved lots in theCity of Washington, on which two years taxes remain due and unpaid,or so much thereof as may be necessary to pay such taxes, may besold at public sale for such taxes due thereon: Provided, thatpublic notice be given of the time and place of sale, byadvertising in some newspaper printed in the City of Washington, atleast six months, where the property belongs to persons residingout of the United States; three months where the property belongsto persons residing in the United States, but without the limits ofthe District of Columbia; and six weeks where the property belongsto persons residing within the District of Columbia or City ofWashington; in which notice shall be stated the number of the lotor lots, the number of the square or squares, the name of theperson or persons to whom the same may have been assessed, and alsothe amount of taxes due thereon: And provided, also, that thepurchaser shall not be obliged to pay at the time of such sale,more than the taxes due, and the expenses of sale; and that, ifwithin two years from the day of such sale, the proprietor orproprietors of such lot or lots, or his or their heirs,representatives, or agents, shall repay to such purchaser themoneys paid for the taxes and expenses as aforesaid, together withten per centum per annum as interest thereon, or make a tender ofthe same, he shall be reinstated in his original right and title;but if no such payment or tender be made

Page 19 U. S. 288

within two years next after the said sale, then the purchasershall pay the balance of the purchase money of such lot or lotsinto the City Treasury, where it shall remain subject to the orderof the original proprietor or proprietors, his or their heirs, orlegal representatives; and the purchaser shall receive a title infee simple to the said lot or lots, under the hand of the Mayor,and seal of the Corporation, which shall be deemed good and validin law and equity."

" Sec. 9. And be it further enacted, That the said Corporationshall, in future, be named and styled, 'The Mayor, Aldermen, andCommon Council of the City of Washington;' and that if there shallhave been a non-election or informality of a City Council, on thefirst Monday in June last, it shall not be taken, construed, oradjudged, in any manner, to have operated as a dissolution of thesaid Corporation, or to affect any of its rights, privileges, orlaws passed previous to the second Monday in June last, but thesame are hereby declared to exist in full force."

" Sec. 10. And be it further enacted, That the Corporationshall, from time to time, cause the several wards of the City to beso located, as to give, as nearly as may be, an equal number ofvotes to each ward; and it shall be the duty of the Register of theCity, or such officer as the Corporation may hereafter appoint, tofurnish the commissioners of election for each ward, on the firstMonday in June, annually, previous to the opening of the polls, alist of the persons having a right to vote, agreeably to theprovisions of the second section of this act. "

Page 19 U. S. 289

" Sec. 11. And be it further enacted, That so much of any formeract as shall be repugnant to the provisions of this act, be, andthe same is hereby repealed."

"Which statutes are still in force and unrepealed. That thelottery, denominated the National Lottery, before mentioned, theticket of which was sold by the defendants as aforesaid, was dulycreated by the said Corporation of Washington, and the drawingthereof, and the sale of the said ticket, was duly authorized bythe said Corporation, for the objects and purposes, and in the modedirected by the said statute of the Congress of the United States.If, upon this case, the Court shall be of opinion, that the acts ofCongress before mentioned were valid, and on the true constructionof these acts, the lottery ticket sold by the said defendants asaforesaid, might lawfully be sold within the State of Virginia,notwithstanding the act or statute of the General Assembly ofVirginia prohibiting such sale, then judgment to be entered for thedefendants. But if the Court should be of opinion, that the statuteor act of the General Assembly of the State of Virginia,prohibiting such sale, is valid, notwithstanding the said acts ofCongress, then judgment to be entered, that the defendants areguilty, and that the Commonwealth recover against them one hundreddollars and costs."

"TAYLOR, for defendants."

"And thereupon the matters of law arising upon the said caseagreed being argued, it seems to the Court here, that the law isfor the Commonwealth, and

Page 19 U. S. 290

that the defendants are guilty in manner and form, as in theinformation against them is alleged, and they do assess their fineto one hundred dollars besides the costs. Therefore, it isconsidered by the Court, that the Commonwealth recover against thesaid defendants, to the use of the President and Directors of theLiterary Fund, one hundred dollars, the fine by the Courtaforesaid, in manner aforesaid assessed, and the costs of thisprosecution; and the said defendants may be taken, &c."

From which judgment the defendants, by their counsel, prayed anappeal to the next Superior Court of law of Norfolk county, whichwas refused by the Court, inasmuch as cases of this sort are notsubject to revision by any other Court of the Commonwealth.Commonwealth's costs, $31 50 cents.

Page 19 U. S. 375

MR. CHIEF JUSTICE MARSHALL delivered the opinion of theCourt.

This is a writ of error to a judgment rendered in the Court ofHustings for the borough of Norfolk, on an information for sellinglottery tickets, contrary to an act of the Legislature of Virginia.In the State court, the defendant claimed the protection of an actof Congress. A case was agreed between the parties, which statesthe act of Assembly on which the prosecution was founded and theact of Congress on which the defendant relied, and concludes inthese words:

"If, upon this case, the Court shall be of opinion that the actsof Congress before mentioned were valid, and, on the trueconstruction of those acts, the lottery tickets sold by thedefendants as aforesaid, might lawfully be sold within the State ofVirginia, notwithstanding the act or statute of the generalassembly of Virginia prohibiting such sale, then judgment to beentered for the defendants; and if the Court should be of opinionthat the statute or act of the General Assembly of the State ofVirginia, prohibiting such sale, is valid, notwithstanding the saidacts of Congress, then judgment to be entered that the defendantsare guilty, and that the Commonwealth recover against them onehundred dollars and costs. "

Page 19 U. S. 376

Judgment was rendered against the defendants; and the Court inwhich it was rendered being the highest Court of the State in whichthe cause was cognizable, the record has been brought into thisCourt by writ of error.*

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

In support of this motion, three points have been made, andargued with the ability which the importance of the questionmerits. These points are:

1st. That a State is a defendant.

2d. That no writ of error lies from this Court to a Statecourt.

3d. The third point has been presented in different forms by thegentlemen who have argued it. The counsel who opened the cause saidthat the want of jurisdiction was shown by the subject matter ofthe case. The counsel who followed him said that jurisdiction wasnot given by the Judiciary Act. The Court has bestowed all itsattention on the arguments of both gentlemen, and supposes thattheir tendency is to show that this Court has no jurisdiction ofthe case, or, in other words, has no right to review the judgmentof the State court, because neither the Constitution nor any law ofthe United States has been violated by that judgment.

The questions presented to the Court by the two first

Page 19 U. S. 377

points made at the bar are of great magnitude, and may be trulysaid vitally to affect the Union. They exclude the inquiry whetherthe Constitution and laws of the United States have been violatedby the judgment which the plaintiffs in error seek to review; andmaintain that, admitting such violation, it is not in the power ofthe government to apply a corrective. They maintain that the nationdoes not possess a department capable of restraining peaceably, andby authority of law, any attempts which may be made, by a part,against the legitimate powers of the whole, and that the governmentis reduced to the alternative of submitting to such attempts or ofresisting them by force. They maintain that the Constitution of theUnited States has provided no tribunal for the final constructionof itself, or of the laws or treaties of the nation, but that thispower may be exercised in the last resort by the Courts of everyState in the Union. That the Constitution, laws, and treaties mayreceive as many constructions as there are States; and that this isnot a mischief, or, if a mischief, is irremediable. These abstractpropositions are to be determined, for he who demands decisionwithout permitting inquiry affirms that the decision he asks doesnot depend on inquiry.

If such be the Constitution, it is the duty of the Court to bowwith respectful submission to its provisions. If such be not theConstitution, it is equally the duty of this Court to say so, andto perform that task which the American people have assigned to thejudicial department.

Page 19 U. S. 378

1st. The first question to be considered is whether thejurisdiction of this Court is excluded by the character of theparties, one of them being a State, and the other a citizen of thatState?

The second section of the third article of the Constitutiondefines the extent of the judicial power of the United States.Jurisdiction is given to the Courts of the Union in two classes ofcases. In the first, their jurisdiction depends on the character ofthe 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 bemade, under their authority."

This clause extends the jurisdiction of the Court to all thecases described, without making in its terms any exceptionwhatever, and without any regard to the condition of the party. Ifthere by any exception, it is to be implied against the expresswords of the article.

In the second class, the jurisdiction depends entirely on thecharacter of the parties. In this are comprehended "controversiesbetween two or more States, between a State and citizens of anotherState," "and between a State and foreign States, citizens orsubjects." If these be the parties, it is entirely unimportant whatmay be the subject of controversy. Be it what it may, these partieshave a constitutional right to come into the Courts of theUnion.

The counsel for the defendant in error have stated that thecases which arise under the Constitution must grow out of thoseprovisions which are capable

Page 19 U. S. 379

of self-execution, examples of which are to be found in the 2dsection of the 4th article, and in the 10th section of the 1starticle.

A case which arises under a law of the United States must, weare likewise told, be a right given by some act which becomesnecessary to execute the powers given in the Constitution, of whichthe law of naturalization is mentioned as an example.

The use intended to be made of this exposition of the first partof the section, defining the extent of the judicial power, is notclearly understood. If the intention be merely to distinguish casesarising under the Constitution from those arising under a law, forthe sake of precision in the application of this argument, thesepropositions will not be controverted. If it be to maintain that acase arising under the Constitution, or a law, must be one in whicha party comes into Court to demand something conferred on him bythe Constitution or a law, we think the construction too narrow. Acase in law or equity consists of the right of the one party, aswell as of the other, and may truly be said to arise under theConstitution or a law of the United States whenever its correctdecision depends on the construction of either. Congress seems tohave intended to give its own construction of this part of theConstitution in the twenty-fifth section of the Judiciary Act, andwe perceive no reason to depart from that construction.

The jurisdiction of the Court, then, being extended by theletter of the Constitution to all cases arising under it, or underthe laws of the United States, it follows that those who wouldwithdraw

Page 19 U. S. 380

any case of this description from that jurisdiction, mustsustain the exemption they claim on the spirit and true meaning ofthe Constitution, which spirit and true meaning must be so apparentas to overrule the words which its framers have employed.

The counsel for the defendant in error have undertaken to dothis, and have laid down the general proposition that a sovereignindependent State is not suable except by its own consent.

This general proposition will not be controverted. But itsconsent is not requisite in each particular case. It may be givenin a general law. And if a State has surrendered any portion of itssovereignty, the question whether a liability to suit be a part ofthis portion depends on the instrument by which the surrender ismade. If, upon a just construction of that instrument, it shallappear that the State has submitted to be sued, then it has partedwith this sovereign right of judging in every case on the justiceof its own pretensions, and has entrusted that power to a tribunalin whose impartiality it confides.

The American States, as well as the American people, havebelieved a close and firm Union to be essential to their libertyand to their happiness. They have been taught by experience thatthis Union cannot exist without a government for the whole, andthey have been taught by the same experience that this governmentwould be a mere shadow, that must disappoint all their hopes,unless invested with large portions of that sovereignty whichbelongs to independent States. Under the influence of this opinion,and thus instructed by experience,

Page 19 U. S. 381

the American people, in the conventions of their respectiveStates, adopted the present Constitution.

If it could be doubted whether, from its nature, it were notsupreme in all cases where it is empowered to act, that doubt wouldbe removed by the declaration that

"this Constitution, and the laws of the United States, whichshall be made in pursuance thereof, and all treaties made, or whichshall be made, under the authority of the United States, shall bethe supreme law of the land; and the judges in every State shall bebound thereby; any thing in the Constitution or laws of any Stateto the contrary notwithstanding."

This is the authoritative language of the American people, and,if gentlemen please, of the American States. It marks, with linestoo strong to be mistaken the characteristic distinction betweenthe government of the Union and those of the States. The generalgovernment, though limited as to its objects, is supreme withrespect to those objects. This principle is a part of theConstitution, and if there be any who deny its necessity, none candeny its authority.

To this supreme government ample powers are confided, and if itwere possible to doubt the great purposes for which they were soconfided, the people of the United States have declared that theyare 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 tothemselves and their posterity. "

Page 19 U. S. 382

With the ample powers confided to this supreme government, forthese interesting purposes are connected many express and importantlimitations on the sovereignty of the States which are made for thesame purposes. The powers of the Union, on the great subjects ofwar, peace, and commerce, and on many others, are in themselveslimitations of the sovereignty of the States; but, in addition tothese, the sovereignty of the States is surrendered in manyinstances where the surrender can only operate to the benefit ofthe people, and where, perhaps, no other power is conferred onCongress than a conservative power to maintain the principlesestablished in the Constitution. The maintenance of theseprinciples in their purity is certainly among the great duties ofthe government. One of the instruments by which this duty may bepeaceably performed is the judicial department. It is authorized todecide all cases of every description arising under theConstitution or laws of the United States. From this general grantof jurisdiction, no exception is made of those cases in which aState may be a party. When we consider the situation of thegovernment of the Union and of a State in relation to each other;the nature of our Constitution; the subordination of the Stategovernments to that Constitution; the great purpose for whichjurisdiction over all cases arising under the Constitution and lawsof the United States is confided to the judicial department; are weat liberty to insert in this general grant an exception of thosecases in which a State may be a

Page 19 U. S. 383

party? Will the spirit of the Constitution justify this attemptto control its words? We think it will not. We think a case arisingunder the Constitution or laws of the United States is cognizablein the Courts of the Union whoever may be the parties to thatcase.

Had any doubt existed with respect to the just construction ofthis part of the section, that doubt would have been removed by theenumeration of those cases to which the jurisdiction of the federalCourts is extended in consequence of the character of the parties.In that enumeration, we find "controversies between two or moreStates, between a State and citizens of another State," "andbetween a State and foreign States, citizens, or subjects."

On of the express objects, then, for which the judicialdepartment was established is the decision of controversies betweenStates, and between a State and individuals. The mere circumstancethat a State is a party gives jurisdiction to the Court. How, then,can it be contended that the very same instrument, in the very samesection, should be so construed as that this same circumstanceshould withdraw a case from the jurisdiction of the Court where theConstitution or laws of the United States are supposed to have beenviolated? The Constitution gave to every person having a claim upona State a right to submit his case to the Court of the nation.However unimportant his claim might be, however little thecommunity might be interested in its decision, the framers of ourConstitution thought it necessary for the purposes of justice toprovide a

Page 19 U. S. 384

tribunal as superior to influence as possible in which thatclaim might be decided. Can it be imagined that the same personsconsidered a case involving the Constitution of our country and themajesty of the laws, questions in which every American citizen mustbe deeply interested, as withdrawn from this tribunal, because aState is a party?

While weighing arguments drawn from the nature of government andfrom the general spirit of an instrument, and urged for the purposeof narrowing the construction which the words of that instrumentseem to require, it is proper to place in the opposite scale thoseprinciples, drawn from the same sources, which go to sustain thewords in their full operation and natural import. One of these,which has been pressed with great force by the counsel for theplaintiffs in error, is that the judicial power of every wellconstituted government must be coextensive with the legislative,and must be capable of deciding every judicial question which growsout 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 abstractquestion, there would, probably, exist no contrariety of opinionrespecting it. Every argument proving the necessity of thedepartment proves also the propriety of giving this extent to it.We do not mean to say that the jurisdiction of the Courts of theUnion should be construed to be coextensive with the legislativemerely because it is fit that it should be so; but we mean to saythat this fitness furnishes an argument

Page 19 U. S. 385

in construing the Constitution which ought never to beoverlooked, and which is most especially entitled to considerationwhen we are inquiring whether the words of the instrument whichpurport to establish this principle shall be contracted for thepurpose of destroying it.

The mischievous consequences of the construction contended foron the part of Virginia are also entitled to great consideration.It would prostrate, it has been said, the government and its lawsat the feet of every State in the Union. And would not this be itseffect? What power of the government could be executed by its ownmeans in any State disposed to resist its execution by a course oflegislation? The laws must be executed by individuals acting withinthe several States. If these individuals may be exposed topenalties, and if the Courts of the Union cannot correct thejudgments by which these penalties may be enforced, the course ofthe government may be at any time arrested by the will of one ofits members. Each member will possess a veto on the will of thewhole.

The answer which has been given to this argument does not denyits truth, but insists that confidence is reposed, and may besafely reposed, in the State institutions, and that, if they shallever become so insane or so wicked as to seek the destruction ofthe government, they may accomplish their object by refusing toperform the functions assigned to them.

We readily concur with the counsel for the defendant

Page 19 U. S. 386

in the declaration that the cases which have been put of directlegislative resistance for the purpose of opposing the acknowledgedpowers of the government are extreme cases, and in the hope thatthey will never occur, but we cannot help believing that a generalconviction of the total incapacity of the government to protectitself and its laws in such cases would contribute in noinconsiderable degree to their occurrence.

Let it be admitted that the cases which have been put areextreme and improbable, yet there are gradations of opposition tothe laws, far short to those cases, which might have a banefulinfluence on the affairs of the nation. Different States mayentertain different opinions on the true construction of theconstitutional powers of Congress. We know that, at one time, theassumption of the debts contracted by the several States during thewar of our revolution was deemed unconstitutional by some of them.We know, too, that, at other times, certain taxes imposed byCongress have been pronounced unconstitutional. Other laws havebeen questioned partially, while they were supported by the greatmajority of the American people. We have no assurance that we shallbe less divided than we have been. States may legislate inconformity to their opinions, and may enforce those opinions bypenalties. It would be hazarding too much to assert that thejudicatures of the States will be exempt from the prejudices bywhich the legislatures and people are influenced, and willconstitute perfectly impartial tribunals. In many States, thejudges are dependent for office and

Page 19 U. S. 387

for salary on the will of the legislature. The Constitution ofthe United States furnishes no security against the universaladoption of this principle. When we observe the importance whichthat Constitution attaches to the independence of judges, we arethe less inclined to suppose that it can have intended to leavethese constitutional questions to tribunals where this independencemay not exist, in all cases where a State shall prosecute anindividual who claims the protection of an act of Congress. Theseprosecutions may take place even without a legislative act. Aperson making a seizure under an act of Congress, may be indictedas a trespasser, if force has been employed, and of this a jury mayjudge. How extensive may be the mischief if the first decisions insuch cases should be final!

These collisions may take place in times of no extraordinarycommotion. But a Constitution is framed for ages to come, and isdesigned to approach immortality as nearly as human institutionscan approach it. Its course cannot always be tranquil. It isexposed to storms and tempests, and its framers must be unwisestatesmen indeed if they have not provided it, as far as its naturewill permit, with the means of self-preservation from the perils itmay be destined to encounter. No government ought to be sodefective in its organization as not to contain within itself themeans of securing the execution of its own laws against otherdangers than those which occur every day. Courts of justice are themeans most usually employed, and it is reasonable to expect that agovernment should repose on its

Page 19 U. S. 388

own Courts, rather than on others. There is certainly nothing inthe circumstances under which our Constitution was formed, nothingin the history of the times, which would justify the opinion thatthe confidence reposed in the States was so implicit as to leave inthem and their tribunals the power of resisting or defeating, inthe form of law, the legitimate measures of the Union. Therequisitions of Congress under the confederation were asconstitutionally obligatory as the laws enacted by the presentCongress. That they were habitually disregarded is a fact ofuniversal notoriety. With the knowledge of this fact, and under itsfull pressure, a convention was assembled to change the system. Isit so improbable that they should confer on the judicial departmentthe power of construing the Constitution and laws of the Union inevery case, in the last resort, and of preserving them from allviolation from every quarter, so far as judicial decisions canpreserve them, that this improbability should essentially affectthe construction of the new system? We are told, and we are trulytold, that the great change which is to give efficacy to thepresent 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 beapplied directly to the protection of individuals employed in theexecution of the laws, as well as to their coercion. Your lawsreach the individual without the aid of any other power; why maythey not protect him from punishment for performing his duty inexecuting them?

Page 19 U. S. 389

The counsel for Virginia endeavor to obviate the force of thesearguments by saying that the dangers they suggest, if notimaginary, are inevitable; that the Constitution can make noprovision against them; and that, therefore, in construing thatinstrument, they ought to be excluded from our consideration. Thisstate of things, they say, cannot arise until there shall be adisposition so hostile to the present political system as toproduce a determination to destroy it; and, when that determinationshall be produced, its effects will not be restrained by parchmentstipulations. The fate of the Constitution will not then depend onjudicial decisions. But, should no appeal be made to force, theStates can put an end to the government by refusing to act. Theyhave only not to elect Senators, and it expires without astruggle.

It is very true that, whenever hostility to the existing systemshall become universal, it will be also irresistible. The peoplemade the Constitution, and the people can unmake it. It is thecreature of their will, and lives only by their will. But thissupreme and irresistible power to make or to unmake resides only inthe whole body of the people, not in any subdivision of them. Theattempt of any of the parts to exercise it is usurpation, and oughtto be repelled by those to whom the people have delegated theirpower of repelling it.

The acknowledged inability of the government, then, to sustainitself against the public will and, by force or otherwise, tocontrol the whole nation, is no sound argument in support of itsconstitutional

Page 19 U. S. 390

inability to preserve itself against a section of the nationacting 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 willbe suspended. But if any one State shall refuse to elect them, theSenate will not, on that account, be the less capable of performingall its functions. The argument founded on this fact would seemrather to prove the subordination of the parts to the whole thanthe complete independence of any one of them. The framers of theConstitution were, indeed, unable to make any provisions whichshould protect that instrument against a general combination of theStates, or of the people, for its destruction; and, conscious ofthis inability, they have not made the attempt. But they were ableto provide against the operation of measures adopted in any oneState whose tendency might be to arrest the execution of the laws,and this it was the part of true wisdom to attempt. We think theyhave attempted it.

It has been also urged as an additional objection to thejurisdiction of the Court that cases between a State and one of itsown citizens do not come within the general scope of theConstitution, and were obviously never intended to be madecognizable in the federal Courts. The State tribunals might besuspected of partiality in cases between itself or its citizens andaliens, or the citizens of another State, but not in proceedings bya State against its own citizens. That jealousy which might existin the first case could not exist in the last, and therefore thejudicial power is not extended to the last.

Page 19 U. S. 391

This is very true, so far as jurisdiction depends on thecharacter of the parties; and the argument would have great forceif urged to prove that this Court could not establish the demand ofa citizen upon his State, but is not entitled to the same forcewhen urged to prove that this Court cannot inquire whether theConstitution or laws of the United States protect a citizen from aprosecution instituted against him by a State. If jurisdictiondepended entirely on the character of the parties, and was notgiven where the parties have not an original right to come intoCourt, that part of the 2d section of the 3d article which extendsthe judicial power to all cases arising under the Constitution andlaws of the United States would be mere surplusage. It is to givejurisdiction where the character of the parties would not give itthat this very important part of the clause was inserted. It may betrue that the partiality of the State tribunals, in ordinarycontroversies between a State and its citizens, was notapprehended, and therefore the judicial power of the Union was notextended to such cases; but this was not the sole nor the greatestobject for which this department was created. A more important, amuch more interesting, object was the preservation of theConstitution and laws of the United States, so far as they can bepreserved by judicial authority, and therefore the jurisdiction ofthe Courts of the Union was expressly extended to all cases arisingunder that Constitution and those laws. If the Constitution or lawsmay be violated by proceedings

Page 19 U. S. 392

instituted by a State against its own citizens, and if thatviolation may be such as essentially to affect the Constitution andthe laws, such as to arrest the progress of government in itsconstitutional course, why should these cases be excepted from thatprovision which expressly extends the judicial power of the Unionto all cases arising under the Constitution and laws?

After bestowing on this subject the most attentiveconsideration, the Court can perceive no reason founded on thecharacter of the parties for introducing an exception which theConstitution has not made, and we think that the judicial power, asoriginally given, extends to all cases arising under theConstitution or a law of the United States, whoever may be theparties.

It has been also contended that this jurisdiction, if given, isoriginal, and cannot be exercised in the appellate form.

The words of the Constitution are,

"in all cases affecting ambassadors, other public ministers, andconsuls, and those in which a State shall be a party, the SupremeCourt shall have original jurisdiction. In all the other casesbefore mentioned, the Supreme Court shall have appellatejurisdiction."

This distinction between original and appellate jurisdiction,excludes, we are told, in all cases, the exercise of the one wherethe other is given.

The Constitution gives the Supreme Court original jurisdictionin certain enumerated cases, and gives it appellate jurisdiction inall others. Among those in which jurisdiction must be exercised inthe appellate

Page 19 U. S. 393

form are cases arising under the Constitution and laws of theUnited States. These provisions of the Constitution are equallyobligatory, and are to be equally respected. If a State be a party,the jurisdiction of this Court is original; if the case arise undera Constitution or a law, the jurisdiction is appellate. But a caseto which a State is a party may arise under the Constitution or alaw of the United States. What rule is applicable to such a case?What, then, becomes the duty of the Court? Certainly, we think, soto construe the Constitution as to give effect to both provisions,as far as it is possible to reconcile them, and not to permit theirseeming repugnancy to destroy each other. We must endeavor so toconstrue them as to preserve the true intent and meaning of theinstrument.

In one description of cases, the jurisdiction of the Court isfounded entirely on the character of the parties, and the nature ofthe controversy is not contemplated by the Constitution. Thecharacter of the parties is everything, the nature of the casenothing. In the other description of cases, the jurisdiction isfounded entirely on the character of the case, and the parties arenot contemplated by the Constitution. In these, the nature of thecase is everything, the character of the parties nothing. When,then, the Constitution declares the jurisdiction, in cases where aState shall be a party, to be original, and in all cases arisingunder the Constitution or a law, to be appellate -- the conclusionseems irresistible that its framers designed to include in thefirst class

Page 19 U. S. 394

those cases in which jurisdiction is given because a State is aparty, and to include in the second those in which jurisdiction isgiven because the case arises under the Constitution or a law.

This reasonable construction is rendered necessary by otherconsiderations.

That the Constitution or a law of the United States is involvedin a case, and makes a part of it, may appear in the progress of acause in which the Courts of the Union, but for that circumstance,would have no jurisdiction, and which, of consequence, could notoriginate in the Supreme Court. In such a case, the jurisdictioncan be exercised only in its appellate form. To deny its exercisein this form is to deny its existence, and would be to construe aclause dividing the power of the Supreme Court in such manner as ina considerable degree to defeat the power itself. All must perceivethat this construction can be justified only where it is absolutelynecessary. We do not think the article under consideration presentsthat necessity.

It is observable that, in this distributive clause, no negativewords are introduced. This observation is not made for the purposeof contending that the legislature may "apportion the judicialpower between the Supreme and inferior Courts according to itswill." That would be, as was said by this Court in the case ofMarbury v. Madison, to render the distributive clause"mere surplusage," to make it "form without substance." Thiscannot, therefore, be the true construction of the article.

Page 19 U. S. 395

But although the absence of negative words will not authorizethe legislature to disregard the distribution of the powerpreviously granted, their absence will justify a sound constructionof the whole article so as to give every part its intended effect.It is admitted that "affirmative words are often, in theiroperation, negative of other objects than those affirmed," andthat, where "a negative or exclusive sense must be given to them,or they have no operation at all," they must receive that negativeor exclusive sense. But where they have full operation without it;where it would destroy some of the most important objects for whichthe power was created; then, we think, affirmative words ought notto be construed negatively.

The Constitution declares that, in cases where a State is aparty, the Supreme Court shall have original jurisdiction, but doesnot say that its appellate jurisdiction shall not be exercised incases 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 originatingin the Supreme Court, it ought to originate there, but where, fromits nature, it cannot originate in that Court, these words oughtnot to be so construed as to require it. There are many cases inwhich it would be found extremely difficult, and subversive of thespirit of the Constitution, to maintain the construction thatappellate jurisdiction cannot be exercised where one of the partiesmight sue or be sued in this Court.

The Constitution defines the jurisdiction of the

Page 19 U. S. 396

Supreme Court, but does not define that of the inferior Courts.Can it be affirmed that a State might not sue the citizen ofanother State in a Circuit Court? Should the Circuit Court decidefor or against its jurisdiction, should it dismiss the suit or givejudgment against the State, might not its decision be revised inthe Supreme Court? The argument is that it could not; and the veryclause which is urged to prove that the Circuit Court could give nojudgment in the case is also urged to prove that its judgment isirreversible. A supervising Court, whose peculiar province it is tocorrect the errors of an inferior Court, has no power to correct ajudgment given without jurisdiction because, in the same case, thatsupervising Court has original jurisdiction. Had negative wordsbeen employed, it would be difficult to give them this constructionif they would admit of any other. But without negative words, thisirrational construction can never be maintained.

So, too, in the same clause, the jurisdiction of the Court isdeclared to be original "in cases affecting ambassadors, otherpublic ministers, and consuls." There is, perhaps, no part of thearticle under consideration so much required by national policy asthis, unless it be that part which extends the judicial power "toall cases arising under the Constitution, laws, and treaties of theUnited States." It has been generally held that the State courtshave a concurrent jurisdiction with the federal Courts, in cases towhich the judicial power is extended, unless the jurisdiction ofthe federal Courts be rendered exclusive

Page 19 U. S. 397

by the words of the third article. If the words, "to all cases,"give exclusive jurisdiction in cases affecting foreign ministers,they may also give exclusive jurisdiction, if such be the will ofCongress, in cases arising under the Constitution, laws, andtreaties of the United States. Now suppose an individual were tosue a foreign minister in a State court, and that Court were tomaintain its jurisdiction and render judgment against the minister-- could it be contended that this Court would be incapable ofrevising such judgment, because the Constitution had given itoriginal jurisdiction in the case? If this could be maintained,then a clause inserted for the purpose of excluding thejurisdiction of all other Courts than this in a particular casewould have the effect of excluding the jurisdiction of this Courtin that very case if the suit were to be brought in another Courtand that Court were to assert jurisdiction. This tribunal,according to the argument which has been urged, could neitherrevise the judgment of such other Court nor suspend itsproceedings, 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, theclaims of their fellow subjects. These suits are maintained by themas consuls. The appellate power of this Court has been frequentlyexercised in such cases, and has never been questioned. It would beextremely mischievous to withhold its exercise. Yet the consul is aparty on the record. The truth is that, where the words confer onlyappellate jurisdiction, original jurisdiction is most

Page 19 U. S. 398

clearly not given; but where the words admit of appellatejurisdiction, the power to take cognizance of the suit originallydoes not necessarily negative the power to decide upon it on anappeal if it may originate in a different Court.

It is, we think, apparent that to give this distributive clausethe interpretation contended for, to give to its affirmative wordsa negative operation, in every possible case would, in someinstances, defeat the obvious intention of the article. Such aninterpretation would not consist with those rules which, from timeimmemorial, have guided Courts in their construction of instrumentsbrought under their consideration. It must therefore be discarded.Every part of the article must be taken into view, and thatconstruction adopted which will consist with its words and promoteits general intention. The Court may imply a negative fromaffirmative words where the implication promotes, not where itdefeats, the intention.

If we apply this principle, the correctness of which we believewill not be controverted, to the distributive clause underconsideration, the result, we think, would be this: the originaljurisdiction of the Supreme Court, in cases where a State is aparty, refers to those cases in which, according to the grant ofpower made in the preceding clause, jurisdiction might be exercisedin consequence of the character of the party, and an original suitmight be instituted in any of the federal Courts, not to thosecases in which an original suit might not be

Page 19 U. S. 399

instituted in a federal Court. Of the last description is everycase between a State and its citizens, and perhaps every case inwhich a State is enforcing its penal laws. In such cases,therefore, the Supreme Court cannot take original jurisdiction. Inevery other case -- that is, in every case to which the judicialpower extends and in which original jurisdiction is not expresslygiven -- that judicial power shall be exercised in the appellate,and only in the appellate, form. The original jurisdiction of thisCourt cannot be enlarged, but its appellate jurisdiction may beexercised in every case cognizable under the third article of theConstitution, in the federal Courts, in which original jurisdictioncannot be exercised; and the extent of this judicial power is to bemeasured not by giving the affirmative words of the distributiveclause a negative operation in every possible case, but by givingtheir true meaning to the words which define its extent.

The counsel for the defendant in error urge, in opposition tothis rule of construction, some dicta of the Court in the case ofMarbury v. Madison.

It is a maxim not to be disregarded that general expressions, inevery opinion, are to be taken in connection with the case in whichthose expressions are used. If they go beyond the case, they may berespected, but ought not to control the judgment in a subsequentsuit when the very point is presented for decision. The reason ofthis maxim is obvious. The question actually before the Court isinvestigated with care, and considered in its full extent. Otherprinciples which may serve to illustrate it are considered

Page 19 U. S. 400

in their relation to the case decided, but their possiblebearing on all other cases is seldom completely investigated.

In the case ofMarbury v. Madison, the single questionbefore the Court, so far as that case can be applied to this, waswhether the legislature could give this Court original jurisdictionin a case in which the Constitution had clearly not given it, andin which no doubt respecting the construction of the article couldpossibly be raised. The Court decided, and we think very properly,that the legislature could not give original jurisdiction in such acase. But, in the reasoning of the Court in support of thisdecision, some expressions are used which go far beyond it. Thecounsel for Marbury had insisted on the unlimited discretion of thelegislature in the apportionment of the judicial power, and it isagainst this argument that the reasoning of the Court is directed.They say that, if such had been the intention of the article, "itwould certainly have been useless to proceed farther than to definethe judicial power and the tribunals in which it should be vested."The Court says that such a construction would render the clausedividing the jurisdiction of the Court into original and appellatetotally useless; that

"affirmative words are often, in their operation, negative ofother objects than those which are affirmed; and, in this case [inthe case ofMarbury v. Madison], a negative or exclusivesense must be given to them or they have no operation at all."

"It cannot be presumed," adds the Court,

"that any clause in the Constitution is intended to bewithout

Page 19 U. S. 401

effect, and therefore such a construction is inadmissible unlessthe words require it."

The whole reasoning of the Court proceeds upon the idea that theaffirmative words of the clause giving one sort of jurisdictionmust imply a negative of any other sort of jurisdiction, becauseotherwise the words would be totally inoperative, and thisreasoning is advanced in a case to which it was strictlyapplicable. If, in that case, original jurisdiction could have beenexercised, the clause under consideration would have been entirelyuseless. Having such cases only in its view, the Court lays down aprinciple which is generally correct, in terms much broader thanthe decision, and not only much broader than the reasoning withwhich that decision is supported, but in some instancescontradictory to its principle. The reasoning sustains the negativeoperation of the words in that case, because otherwise the clausewould have no meaning whatever, and because such operation wasnecessary to give effect to the intention of the article. Theeffort now made is to apply the conclusion to which the Court wasconducted by that reasoning in the particular case to one in whichthe words have their full operation when understood affirmatively,and in which the negative or exclusive sense is to be so used as todefeat some of the great objects of the article.

To this construction the Court cannot give its assent. Thegeneral expressions in the case ofMarbury v. Madison mustbe understood with the limitations which are given to them in thisopinion -- limitations

Page 19 U. S. 402

which in no degree affect the decision in that case or the tenorof its reasoning.

The counsel who closed the argument put several cases for thepurpose of illustration which he supposed to arise under theConstitution, and yet to be apparently without the jurisdiction ofthe Court.

Were a State to lay a duty on exports, to collect the money andplace it in her treasury, could the citizen who paid it, he asks,maintain a suit in this Court against such State to recover backthe money?

Perhaps not. Without, however, deciding such supposed case, wemay say that it is entirely unlike that under consideration.

The citizen who has paid his money to his State under a law thatis void is in the same situation with every other person who haspaid money by mistake. The law raises an assumpsit to return themoney, and it is upon that assumpsit that the action is to bemaintained. To refuse to comply with this assumpsit may be no morea violation of the Constitution than to refuse to comply with anyother; and as the federal Courts never had jurisdiction overcontracts between a State and its citizens, they may have none overthis. But let us so vary the supposed case as to give it a realresemblance to that under consideration. Suppose a citizen torefuse to pay this export duty, and a suit to be instituted for thepurpose of compelling him to pay it. He pleads the Constitution ofthe United States in bar of the action, notwithstanding which theCourt gives judgment against him. This would be a case arisingunder

Page 19 U. S. 403

the Constitution, and would be the very case now before theCourt.

We are also asked, if a State should confiscate property securedby a treaty, whether the individual could maintain an action forthat property?

If the property confiscated be debts, our own experience informsus that the remedy of the creditor against his debtor remains. Ifit be land, which is secured by a treaty, and afterwardsconfiscated by a State, the argument does not assume that thistitle, thus secured, could be extinguished by an act ofconfiscation. The injured party, therefore, has his remedy againstthe 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 papermoney no more resembles this than do those to which we have alreadyadverted. The Courts have no jurisdiction over the contract. Theycannot enforce it, nor judge of its violation. Let it be that theact discharging the debt is a mere nullity, and that it is stilldue. Yet the federal Courts have no cognizance of the case. Butsuppose a State to institute proceedings against an individualwhich depended on the validity of an act emitting bills of credit;suppose a State to prosecute one of its citizens for refusing papermoney, who should plead the Constitution in bar of suchprosecution. If his plea should be overruled, and judgment renderedagainst him, his case would resemble this; and, unless thejurisdiction of this Court might be exercised over it, theConstitution would

Page 19 U. S. 404

be violated, and the injured party be unable to bring his casebefore that tribunal to which the people of the United States haveassigned all such cases.

It is most true that this Court will not take jurisdiction if itshould not; but it is equally true that it must take jurisdictionif it should. The judiciary cannot, as the legislature may, avoid ameasure because it approaches the confines of the Constitution. Wecannot pass it by because it is doubtful. With whatever doubts,with whatever difficulties, a case may be attended, we must decideit if it be brought before us. We have no more right to decline theexercise of jurisdiction which is given than to usurp that which isnot given. The one or the other would be treason to theConstitution. Questions may occur which we would gladly avoid, butwe cannot avoid them. All we can do is to exercise our bestjudgment and conscientiously to perform our duty. In doing this onthe present occasion, we find this tribunal invested with appellatejurisdiction in all cases arising under the Constitution and lawsof the United States. We find no exception to this grant, and wecannot insert one.

To escape the operation of these comprehensive words, thecounsel for the defendant has mentioned instances in which theConstitution might be violated without giving jurisdiction to thisCourt. These words, therefore, however universal in theirexpression, must, he contends, be limited and controlled in theirconstruction by circumstances. One of these instances is the grantby a State of a patent of nobility. The Court, he says, cannotannul this grant.

Page 19 U. S. 405

This may be very true, but by no means justifies the inferencedrawn from it. The article does not extend the judicial power toevery violation of the Constitution which may possibly take place,but to "a case in law or equity" in which a right under such law isasserted in a Court of justice. If the question cannot be broughtinto a Court, then there is no case in law or equity, and nojurisdiction is given by the words of the article. But if, in anycontroversy depending in a Court, the cause should depend on thevalidity of such a law, that would be a case arising under theConstitution, to which the judicial power of the United Stateswould extend. The same observation applies to the other instanceswith which the counsel who opened the cause has illustrated thisargument. Although they show that there may be violations of theConstitution of which the Courts can take no cognizance, they donot show that an interpretation more restrictive than the wordsthemselves import ought to be given to this article. They do notshow that there can be "a case in law or equity," arising under theConstitution to which the judicial power does not extend.

We think, then that, as the Constitution originally stood, theappellate jurisdiction of this Court, in all cases arising underthe Constitution, laws, or treaties of the United States, was notarrested by the circumstance that a State was a party.

This leads to a consideration of the Eleventh Amendment.

It is in these words:

"The judicial power of the United States shall not be construedto extend to any

Page 19 U. S. 406

suit in law or equity commenced or prosecuted against one of theUnited States, by citizens of another State, or by citizens orsubjects of any foreign State."

It is a part of our history that, at the adoption of theConstitution, all the States were greatly indebted, and theapprehension that these debts might be prosecuted in the federalCourts formed a very serious objection to that instrument. Suitswere instituted, and the Court maintained its jurisdiction. Thealarm was general, and, to quiet the apprehensions that were soextensively entertained, this amendment was proposed in Congressand adopted by the State legislatures. That its motive was not tomaintain the sovereignty of a State from the degradation supposedto attend a compulsory appearance before the tribunal of the nationmay be inferred from the terms of the amendment. It does notcomprehend controversies between two or more States, or between aState and a foreign State. The jurisdiction of the Court stillextends to these cases, and in these a State may still be sued. Wemust ascribe the amendment, then, to some other cause than thedignity of a State. There is no difficulty in finding this cause.Those who were inhibited from commencing a suit against a State, orfrom prosecuting one which might be commenced before the adoptionof the amendment, were persons who might probably be its creditors.There was not much reason to fear that foreign or sister Stateswould be creditors to any considerable amount, and there was reasonto retain the jurisdiction of the Court in those

Page 19 U. S. 407

cases, because it might be essential to the preservation ofpeace. The amendment, therefore, extended to suits commenced orprosecuted by individuals, but not to those brought by States.

The first impression made on the mind by this amendment is thatit was intended for those cases, and for those only, in which somedemand against a State is made by an individual in the Courts ofthe Union. If we consider the causes to which it is to be traced,we are conducted to the same conclusion. A general interest mightwell be felt in leaving to a State the full power of consulting itsconvenience in the adjustment of its debts or of other claims uponit, but no interest could be felt in so changing the relationsbetween the whole and its parts as to strip the government of themeans of protecting, by the instrumentality of its Courts, theConstitution and laws from active violation.

The words of the amendment appear to the Court to justify andrequire this construction. The judicial power is not "to extend toany suit in law or equity commenced or prosecuted against one ofthe United States by citizens of another State, &c."

What is a suit? We understand it to be the prosecution, orpursuit, of some claim, demand, or request. In law language, it isthe prosecution of some demand in a Court of justice. The remedyfor every species of wrong is, says Judge Blackstone, "the beingput in possession of that right whereof the party injured isdeprived."

"The instruments whereby this remedy is obtained are a diversityof suits and actions, which are defined by the

Page 19 U. S. 408

Mirror to be 'the lawful demand of one's right.' Or, as Bractonand Fleta express it, in the words of Justinian, 'jusprosequendi in judicio quod alicui debetur.'"

Blackstone then proceeds to describe every species of remedy bysuit, and they are all cases were the party suing claims to obtainsomething to which he has a right.

To commence a suit is to demand something by the institution ofprocess in a Court of justice, and to prosecute the suit is,according to the common acceptation of language, to continue thatdemand. By a suit commenced by an individual against a State, weshould understand process sued out by that individual against theState for the purpose of establishing some claim against it by thejudgment of a Court, and the prosecution of that suit is itscontinuance. Whatever may be the stages of its progress, the actoris still the same. Suits had been commenced in the Supreme Courtagainst some of the States before this amendment was introducedinto Congress, and others might be commenced before it should beadopted by the State legislatures, and might be depending at thetime of its adoption. The object of the amendment was not only toprevent the commencement of future suits, but to arrest theprosecution of those which might be commenced when this articleshould form a part of the Constitution. It therefore embraces bothobjects, and its meaning is that the judicial power shall not beconstrued to extend to any suit which may be commenced, or which,if already commenced, may be

Page 19 U. S. 409

prosecuted against a State by the citizen of another State. If asuit, brought in one Court and carried by legal process to asupervising Court, be a continuation of the same suit, then thissuit is not commenced nor prosecuted against a State. It is clearlyin its commencement the suit of a State against an individual,which suit is transferred to this Court not for the purpose ofasserting any claim against the State, but for the purpose ofasserting a constitutional defence against a claim made by aState.

A writ of error is defined to be a commission by which thejudges of one Court are authorized to examine a record upon which ajudgment was given in another Court, and, on such examination, toaffirm or reverse the same according to law. If, says my Lord Coke,by the writ of error, the plaintiff may recover, or be restored toanything, it may be released by the name of an action. In Bacon'sAbridgment, tit. Error, L., it is laid down that

"where, by a writ of error, the plaintiff shall recover, or berestored to any personal thing, as debt, damage, or the like, arelease of all actions personal is a good plea; and when land is tobe recovered or restored in a writ of error, a release of actionsreal is a good bar; but where, by a writ of error, the plaintiffshall not be restored to any personal or real thing, a release ofall actions, real or personal, is no bar."

And for this we have the authority of Lord Coke, both in hisCommentary 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 theparty who obtains it to the possession of any thing which iswithheld

Page 19 U. S. 410

from him, not when its operation is entirely defensive.

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

Under the Judiciary Act, the effect of a writ of error is simplyto bring the record into Court, and submit the judgment of theinferior tribunal to reexamination. It does not in any manner actupon the parties; it acts only on the record. It removes the recordinto the supervising tribunal. Where, then, a State obtains ajudgment against an individual, and the Court, rendering suchjudgment, overrules a defence set up under the Constitution or lawsof the United States, the transfer of this record into the SupremeCourt, for the sole purpose of inquiring whether the judgmentviolates the Constitution or laws of the United States, can, withno propriety, we think, be denominated a suit commenced orprosecuted against the State whose judgment is so far reexamined.Nothing is demanded from the State. No claim against it of anydescription is asserted or prosecuted. The party is not to berestored to the possession of anything. Essentially, it is anappeal on a single point, and the defendant who appeals from ajudgment rendered against him is never said to commence orprosecute a suit against the plaintiff who has obtained thejudgment. 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 singlepoint of law, and not the whole case, is to

Page 19 U. S. 411

be reexamined. But an appeal might be given, and might be soregulated as to effect every purpose of a writ of error. The modeof removal is form, and not substance. Whether it be by writ oferror or appeal, no claim is asserted, no demand is made by theoriginal defendant; he only asserts the constitutional right tohave his defence examined by that tribunal whose province it is toconstrue the Constitution and laws of the Union.

The only part of the proceeding which is in any manner personalis the citation. And what is the citation? It is simply notice tothe opposite party that the record is transferred into anotherCourt, where he may appear, or decline to appear, as his judgmentor inclination may determine. As the party who has obtained ajudgment is out of Court, and may, therefore, not know that hiscause is removed, common justice requires that notice of the factshould be given him. But this notice is not a suit, nor has it theeffect of process. If the party does not choose to appear, hecannot be brought into Court, nor is his failure to appearconsidered as a default. Judgment cannot be given against him forhis nonappearance, but the judgment is to be reexamined, andreversed or affirmed, in like manner as if the party had appearedand argued his cause.

The point of view in which this writ of error, with itscitation, has been considered uniformly in the Courts of the Unionhas been well illustrated by a reference to the course of thisCourt in suits instituted by the United States. The universallyreceived opinion is that no suit can be commenced

Page 19 U. S. 412

or prosecuted against the United States; that the Judiciary Actdoes not authorize such suits. Yet writs of error, accompanied withcitations, have uniformly issued for the removal of judgments infavour of the United States into a superior Court, where they have,like those in favour of an individual, been reexamined, andaffirmed or reversed. It has never been suggested that such writ oferror was a suit against the United States, and, therefore, notwithin the jurisdiction of the appellate Court.

It is, then, the opinion of the Court that the defendant whoremoves a judgment rendered against him by a State court into thisCourt for the purpose of reexamining the question whether thatjudgment be in violation of the Constitution or laws of the UnitedStates does not commence or prosecute a suit against the State,whatever may be its opinion where the effect of the writ may be torestore the party to the possession of a thing which hedemands.

But should we in this be mistaken, the error does not affect thecase now before the Court. If this writ of error be a suit in thesense of the Eleventh Amendment, it is not a suit commenced orprosecuted "by a citizen of another State, or by a citizen orsubject of any foreign State." It is not then within the Amendment,but is governed entirely by the Constitution as originally framed,and we have already seen that, in its origin, the judicial powerwas extended to all cases arising under the Constitution or laws ofthe United States, without respect to parties.

Page 19 U. S. 413

2d. The second objection to the jurisdiction of the Court isthat its appellate power cannot be exercised, in any case, over thejudgment of a State court.

This objection is sustained chiefly by arguments drawn from thesupposed total separation of the judiciary of a State from that ofthe Union, and their entire independence of each other. Theargument considers the federal judiciary as completely foreign tothat of a State, and as being no more connected with it in anyrespect whatever than the court of a foreign State. If thishypothesis be just, the argument founded on it is equally so; butif the hypothesis be not supported by the Constitution, theargument fails with it.

This hypothesis is not founded on any words in the Constitutionwhich might seem to countenance it, but on the unreasonableness ofgiving a contrary construction to words which seem to require it,and on the incompatibility of the application of the appellatejurisdiction to the judgments of State courts with thatconstitutional relation which subsists between the government ofthe Union and the governments of those States which compose it.

Let this unreasonableness, this total incompatibility, beexamined.

That the United States form, for many and for most importantpurposes, a single nation has not yet been denied. In war, we areone people. In making peace, we are one people. In all commercialregulations, we are one and the same people. In

Page 19 U. S. 414

many other respects, the American people are one, and thegovernment, which is alone capable of controlling and managingtheir interests in all these respects, is the government of theUnion. It is their government, and in that character they have noother. America has chosen to be, in many respects, and to manypurposes, a nation, and for all these purposes, her government iscomplete; to all these objects, it is competent. The people havedeclared that, in the exercise of all powers given for theseobjects, it is supreme. It can, then, in effecting these objects,legitimately control all individuals or governments within theAmerican territory. The Constitution and laws of a State, so far asthey are repugnant to the Constitution and laws of the UnitedStates, are absolutely void. These States are constituent parts ofthe United States. They are members of one great empire -- for somepurposes sovereign, for some purposes subordinate.

In a government so constituted, is it unreasonable that thejudicial power should be competent to give efficacy to theconstitutional laws of the legislature? That department can decideon the validity of the Constitution or law of a State, if it berepugnant to the Constitution or to a law of the United States. Isit unreasonable that it should also be empowered to decide on thejudgment of a State tribunal enforcing such unconstitutional law?Is it so very unreasonable as to furnish a justification forcontrolling the words of the Constitution?

We think it is not. We think that, in a government

Page 19 U. S. 415

acknowledgedly supreme, with respect to objects of vitalinterest to the nation, there is nothing inconsistent with soundreason, nothing incompatible with the nature of government, inmaking all its departments supreme so far as respects those objectsand so far as is necessary to their attainment. The exercise of theappellate power over those judgments of the State tribunals whichmay contravene the Constitution or laws of the United States is, webelieve, essential to the attainment of those objects.

The propriety of entrusting the construction of theConstitution, and laws made in pursuance thereof, to the judiciaryof the Union has not, we believe, as yet, been drawn into question.It seems to be a corollary from this political axiom that thefederal Courts should either possess exclusive jurisdiction in suchcases, or a power to revise the judgment rendered in them, by theState tribunals. If the federal and State courts have concurrentjurisdiction in all cases arising under the Constitution, laws, andtreaties of the United States, and if a case of this descriptionbrought in a State court cannot be removed before judgment, norrevised after judgment, then the construction of the Constitution,laws, and treaties of the United States is not confidedparticularly to their judicial department, but is confided equallyto that department and to the State courts, however they may beconstituted. "Thirteen independent Courts," says a very celebratedstatesman (and we have now more than twenty such Courts)

"of final jurisdiction over the same causes, arising upon thesame laws, is a hydra in government from

Page 19 U. S. 416

which nothing but contradiction and confusion can proceed."

Dismissing the unpleasant suggestion that any motives which maynot be fairly avowed, or which ought not to exist, can everinfluence a State or its Courts, the necessity of uniformity, aswell as correctness in expounding the Constitution and laws of theUnited States, would itself suggest the propriety of vesting insome single tribunal the power of deciding, in the last resort, allcases in which they are involved.

We are not restrained, then, by the political relations betweenthe general and State governments from construing the words of theConstitution defining the judicial power in their true sense. Weare not bound to construe them more restrictively than theynaturally import.

They give to the Supreme Court appellate jurisdiction in allcases arising under the Constitution, laws, and treaties of theUnited States. The words are broad enough to comprehend all casesof this description, in whatever Court they may be decided. Inexpounding them, we may be permitted to take into view thoseconsiderations to which Courts have always allowed great weight inthe exposition of laws.

The framers of the Constitution would naturally examine thestate of things existing at the time, and their work sufficientlyattests that they did so. All acknowledge that they were convenedfor the purpose of strengthening the confederation by enlarging thepowers of the government, and by giving efficacy

Page 19 U. S. 417

to those which it before possessed, but could not exercise. Theyinform us themselves, in the instrument they presented to theAmerican public, that one of its objects was to form a more perfectunion. Under such circumstances, we certainly should not expect tofind, in that instrument, a diminution of the powers of the actualgovernment.

Previous to the adoption of the confederation, Congressestablished Courts which received appeals in prize causes decidedin the Courts of the respective States. This power of thegovernment to establish tribunals for these appeals was thoughtconsistent with, and was founded on, its political relations withthe States. These Courts did exercise appellate jurisdiction overthose cases decided in the State courts to which the judicial powerof the federal government extended.

The confederation gave to Congress the power "of establishingCourts for receiving and determining finally appeals in all casesof captures."

This power was uniformly construed to authorize those Courts toreceive appeals from the sentences of State courts, and to affirmor reverse them. State tribunals are not mentioned, but this clausein the confederation necessarily comprises them. Yet the relationbetween the general and State governments was much weaker, muchmore lax, under the confederation than under the presentConstitution, and the States being much more completely sovereign,their institutions were much more independent.

The Convention which framed the Constitution, on

Page 19 U. S. 418

turning their attention to the judicial power, found it limitedto a few objects, but exercised, with respect to some of thoseobjects, in its appellate form, over the judgments of the Statecourts. They extend it, among other objects, to all cases arisingunder the Constitution, laws, and treaties of the United States,and, in a subsequent clause, declare that, in such cases, theSupreme Court shall exercise appellate jurisdiction. Nothing seemsto be given which would justify the withdrawal of a judgmentrendered in a State court on the Constitution, laws, or treaties ofthe United States from this appellate jurisdiction.

Great weight has always been attached, and very rightlyattached, to contemporaneous exposition. No question, it isbelieved, has arisen to which this principle applies moreunequivocally than to that now under consideration.

The opinion of the Federalist has always been considered as ofgreat authority. It is a complete commentary on our Constitution,and is appealed to by all parties in the questions to which thatinstrument has given birth. Its intrinsic merit entitles it to thishigh rank, and the part two of its authors performed in framing theConstitution put it very much in their power to explain the viewswith which it was framed. These essays having been published whilethe Constitution was before the nation for adoption or rejection,and having been written in answer to objections founded entirely onthe extent of its powers, and on its diminution of Statesovereignty, are entitled to the more consideration where they

Page 19 U. S. 419

frankly avow that the power objected to is given, and defendit.

In discussing the extent of the judicial power, the Federalistsays,

"Here another question occurs: what relation would subsistbetween the national and State courts in these instances ofconcurrent jurisdiction? I answer that an appeal would certainlylie from the latter to the Supreme Court of the United States. TheConstitution in direct terms gives an appellate jurisdiction to theSupreme Court in all the enumerated cases of federal cognizance inwhich it is not to have an original one, without a singleexpression to confine its operation to the inferior federal Courts.The objects of appeal, not the tribunals from which it is to bemade, are alone contemplated. From this circumstance, and from thereason of the thing, it ought to be construed to extend to theState tribunals. Either this must be the case or the local Courtsmust be excluded from a concurrent jurisdiction in matters ofnational concern, else the judicial authority of the Union may beeluded at the pleasure of every plaintiff or prosecutor. Neither ofthese consequences ought, without evident necessity, to beinvolved; the latter would be entirely inadmissible, as it woulddefeat some of the most important and avowed purposes of theproposed government, and would essentially embarrass its measures.Nor do I perceive any foundation for such a supposition. Agreeablyto the remark already made, the national and State systems are tobe regarded as ONE WHOLE. The Courts of the latter will, of course,be natural auxiliaries to the execution

Page 19 U. S. 420

of the laws of the Union, and an appeal from them will asnaturally lie to that tribunal which is destined to unite andassimilate the principles of natural justice, and the rules ofnational decision. The evident aim of the plan of the nationalconvention is that all the causes of the specified classes shall,for weighty public reasons, receive their original or finaldetermination in the Courts of the Union. To confine, therefore,the general expressions which give appellate jurisdiction to theSupreme Court to appeals from the subordinate federal Courts,instead of allowing their extension to the State courts, would beto abridge the latitude of the terms, in subversion of the intent,contrary to every sound rule of interpretation."

A contemporaneous exposition of the Constitution, certainly ofnot less authority than that which has been just cited, is theJudiciary Act itself. We know that in the Congress which passedthat Act were many eminent members of the Convention which formedthe Constitution. Not a single individual, so far as is known,supposed that part of the Act which gives the Supreme Courtappellate jurisdiction over the judgments of the State courts inthe cases therein specified to be unauthorized by theConstitution.

While on this part of the argument, it may be also material toobserve that the uniform decisions of this Court on the point nowunder consideration have been assented to, with a single exception,by the Courts of every State in the Union whose judgments have beenrevised. It has been the unwelcome

Page 19 U. S. 421

duty of this tribunal to reverse the judgments of many Statecourts in cases in which the strongest State feelings were engaged.Judges, whose talents and character would grace any bench, to whoma disposition to submit to jurisdiction that is usurped, or tosurrender their legitimate powers, will certainly not be imputed,have yielded without hesitation to the authority by which theirjudgments were reversed, while they perhaps disapproved thejudgment of reversal.

This concurrence of statesmen, of legislators, and of judges, inthe same construction of the Constitution may justly inspire someconfidence in that construction.

In opposition to it, the counsel who made this point haspresented in a great variety of forms the idea, already noticed,that the federal and State courts must, of necessity and from thenature of the Constitution, be in all things totally distinct andindependent of each other. If this Court can correct the errors ofthe Court of Virginia, he says, it makes them Courts of the UnitedStates, or becomes itself a part of the judiciary of Virginia.

But it has been already shown that neither of these consequencesnecessarily follows. The American people may certainly give to anational tribunal a supervising power over those judgments of theState courts which may conflict with the Constitution, laws, ortreaties, of the United States without converting them into federalCourts or converting the national into a State tribunal. The oneCourt

Page 19 U. S. 422

still derives its authority from the State; the other stillderives its authority from the nation.

If it shall be established, he says that this Court hasappellate jurisdiction over the State courts in all casesenumerated in the 3d article of the Constitution, a completeconsolidation of the States, so far as respects judicial power isproduced.

But certainly the mind of the gentleman who urged this argumentis too accurate not to perceive that he has carried it too far;that the premises by no means justify the conclusion. "A completeconsolidation of the States, so far as respects the judicialpower," would authorize the legislature to confer on the federalCourts appellate jurisdiction from the State courts in all caseswhatsoever. The distinction between such a power and that of givingappellate jurisdiction in a few specified cases in the decision ofwhich the nation takes an interest is too obvious not to beperceived by all.

This opinion has been already drawn out to too great a length toadmit of entering into a particular consideration of the variousforms in which the counsel who made this point has, with muchingenuity, presented his argument to the Court. The argument in allits forms is essentially the same. It is founded not on the wordsof the Constitution, but on its spirit -- a spirit extracted notfrom the words of the instrument, but from his view of the natureof our Union and of the great fundamental principles on which thefabric stands.

To this argument, in all its forms, the same answer may begiven. Let the nature and objects of

Page 19 U. S. 423

our Union be considered; let the great fundamental principles onwhich the fabric stands be examined; and we think the result mustbe that there is nothing so extravagantly absurd in giving to theCourt of the nation the power of revising the decisions of localtribunals on questions which affect the nation as to require thatwords which import this power should be restricted by a forcedconstruction. The question then must depend on the wordsthemselves, and on their construction we shall be the more readilyexcused for not adding to the observations already made, becausethe subject was fully discussed and exhausted in the case ofMartin v. Hunter.

3d. We come now to the third objection, which, thoughdifferently stated by the counsel, is substantially the same. Onegentleman has said that the Judiciary Act does not givejurisdiction in the case.

The cause was argued in the State court, on a case agreed by theparties, which states the prosecution under a law for sellinglottery tickets, which is set forth, and further states the act ofCongress by which the City of Washington was authorized toestablish the lottery. It then states that the lottery wasregularly established by virtue of the act, and concludes withreferring to the Court the questions, whether the act of Congressbe valid? whether, on its just construction, it constitutes a barto the prosecution? and, whether the act of Assembly, on which theprosecution is founded, be not itself invalid? These questions weredecided against the operation of the act of Congress and in favourof the operation of the act of the State.

Page 19 U. S. 424

If the twenty-fifth section of the Judiciary Act be inspected,it will at once be perceived that it comprehends expressly the caseunder consideration.

But it is not upon the letter of the Act that the gentleman whostated this point in this form founds his argument. Both gentlemenconcur substantially in their views of this part of the case. Theydeny that the act of Congress on which the plaintiff in errorrelies is a law of the United States; or, if a law of the UnitedStates, is within the second clause of the sixth article.

In the enumeration of the powers of Congress, which is made inthe eighth section of the first article, we find that of exercisingexclusive legislation over such District as shall become the seatof government. This power, like all others which are specified, isconferred on Congress as the legislature of the Union, for, stripthem of that character and they would not possess it. In no othercharacter can it be exercised. In legislating for the District,they necessarily preserve the character of the legislature of theUnion, for it is in that character alone that the Constitutionconfers on them this power of exclusive legislation. Thisproposition need not be enforced.

The second clause of the sixth article declares that "ThisConstitution, and the laws of the United States, which shall bemade in pursuance thereof, shall be the supreme law of theland."

The clause which gives exclusive jurisdiction is,unquestionably, a part of the Constitution, and, as such, binds allthe United States. Those who contend that acts of Congress, made inpursuance of

Page 19 U. S. 425

this power, do not, like acts made in pursuance of other powers,bind the nation ought to show some safe and clear rule which shallsupport this construction, and prove that an act of Congress,clothed in all the forms which attend other legislative acts andpassed in virtue of a power conferred on, and exercised by Congressas the legislature of the Union, is not a law of the United Statesand does not bind them.

One of the gentlemen sought to illustrate his proposition thatCongress, when legislating for the District, assumed a distinctcharacter, and was reduced to a mere local legislature whose lawscould possess no obligation out of the ten miles square, by areference to the complex character of this Court. It is, they say,a Court of common law and a Court of equity. Its character, whensitting as a Court of common law, is as distinct from its characterwhen sitting as a Court of equity as if the powers belonging tothose departments were vested in different tribunals. Though unitedin the same tribunal, they are never confounded with eachother.

Without inquiring how far the union of different characters inone court, may be applicable, in principle, to the union inCongress of the power of exclusive legislation in some places andof limited legislation in others, it may be observed that the formsof proceedings in a court of law are so totally unlike the forms ofproceedings in a court of equity that a mere inspection of therecord gives decisive information of the character in which thecourt sits, and consequently of the extent of its powers. But

Page 19 U. S. 426

if the forms of proceeding were precisely the same, and thecourt the same, the distinction would disappear.

Since Congress legislates in the same forms, and in the samecharacter, in virtue of powers of equal obligation, conferred inthe same instrument, when exercising its exclusive powers oflegislation as well as when exercising those which are limited, wemust inquire whether there be anything in the nature of thisexclusive legislation which necessarily confines the operation ofthe laws made in virtue of this power to the place with a view towhich they are made.

Connected with the power to legislate within this District is asimilar power in forts, arsenals, dock yards, &c. Congress hasa right to punish murder in a fort or other place within itsexclusive jurisdiction, but no general right to punish murdercommitted within any of the States. In the act for the punishmentof crimes against the United States, murder committed within afort, or any other place or district of country under the sole andexclusive jurisdiction of the United States, is punished withdeath. Thus, Congress legislates in the same act under itsexclusive and its limited powers.

The act proceeds to direct that the body of the criminal, afterexecution, may be delivered to a surgeon for dissection, andpunishes any person who shall rescue such body during itsconveyance from the place of execution to the surgeon to whom it isto be delivered.

Page 19 U. S. 427

Let these actual provisions of of the law, or any otherprovisions which can be made on the subject, be considered with aview to the character in which Congress acts when exercising itspowers 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 orother place in which the murder may be committed, if its generalpowers cannot come in aid of these local powers, how can theoffence be tried in any other court than that of the place in whichit has been committed? How can the offender be conveyed to, ortried in, any other place? How can he be executed elsewhere? Howcan his body be conveyed through a country under the jurisdictionof another sovereign, and the individual punished, who, within thatjurisdiction, shall rescue the body.

Were any one State of the Union to pass a law for trying acriminal in a court not created by itself, in a place not withinits jurisdiction, and direct the sentence to be executed withoutits territory, we should all perceive and acknowledge itsincompetency to such a course of legislation. If Congress be notequally incompetent, it is because that body unites the powers oflocal legislation with those which are to operate through theUnion, and may use the last in aid of the first, or because thepower of exercising exclusive legislation draws after it, as anincident, the power of making that legislation effectual, and theincidental power may be exercised

Page 19 U. S. 428

throughout the Union, because the principal power is given tothat body as the legislature of the Union.

So, in the same act, a person who, having knowledge of thecommission of murder or other felony on the high seas or within anyfort, arsenal, dock yard, magazine, or other place, or district ofcountry within the sole and exclusive jurisdiction of the UnitedStates shall conceal the same, &c., he shall be adjudged guiltyof misprision of felony, and shall be adjudged to be imprisoned,&c.

It is clear that Congress cannot punish felonies generally, and,of consequence, cannot punish misprision of felony. It is equallyclear that a State legislature, the State of Maryland for example,cannot punish those who, in another State, conceal a felonycommitted in Maryland. How, then, is it that Congress, legislatingexclusively 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 thatthe power vested in Congress, as the legislature of the UnitedStates, to legislate exclusively within any place ceded by a State,carries with it, as an incident, the right to make that powereffectual. If a felon escape out of the State in which the act hasbeen committed, the government cannot pursue him into another Stateand apprehend him there, but must demand him from the executivepower of that other State. If Congress were to be considered merelyas the local legislature for the fort or other place in which theoffence might be committed, then this principle would apply to themas to other local

Page 19 U. S. 429

legislatures, and the felon who should escape out of the fort orother place in which the felony may have been committed could notbe apprehended by the marshal, but must be demanded from theexecutive of the State. But we know that the principle does notapply; and the reason is that Congress is not a local legislature,but exercises this particular power, like all its other powers, inits high character as the legislature of the Union. The Americanpeople thought it a necessary power, and they conferred it fortheir own benefit. Being so conferred, it carries with it all thoseincidental powers which are necessary to its complete and effectualexecution.

Whether any particular law be designed to operate without theDistrict or not depends on the words of that law. If it be designedso to operate, then the question, whether the power so exercised beincidental to the power of exclusive legislation, and be warrantedby the Constitution, requires a consideration of that instrument.In such cases, the Constitution and the law must be compared andconstrued. This is the exercise of jurisdiction. It is the onlyexercise of it which is allowed in such a case. For the act ofCongress directs that

"no other error shall be assigned or regarded as a ground orreversal, in any such case as aforesaid, than such as appears onthe face of the record, and immediately respects the beforementioned questions of validity or construction of the saidConstitution, treaties,"

&c.

The whole merits of this case, then, consist in the constructionof the Constitution and the act of Congress.

Page 19 U. S. 430

The jurisdiction of the Court, if acknowledged, goes no farther.This we are required to do without the exercise ofjurisdiction.

The counsel for the State of Virginia have, in support of thismotion, urged many arguments of great weight against theapplication of the act of Congress to such a case as this, butthose arguments go to the construction of the Constitution, or ofthe law, or of both, and seem, therefore, rather calculated tosustain their cause upon its merits than to prove a failure ofjurisdiction in the Court.

After having bestowed upon this question the most deliberateconsideration of which we are capable, the Court is unanimously ofopinion that the objections to its jurisdiction are not sustained,and that the motion ought to be overruled.

Motion denied.

March 2d.

The cause was this day argued on the merits.

Page 19 U. S. 440

The opinion of the Court was delivered by MR. CHIEF JUSTICEMARSHALL.

This case was stated in the opinion given on the motion fordismissing the writ of error for want of jurisdiction in the Court.It now comes on to be decided on the question whether the BoroughCourt of Norfolk, in overruling the defence set up under

Page 19 U. S. 441

the act of Congress, has misconstrued that act. It is in thesewords:

"The said Corporation shall have full power to authorize thedrawing of lotteries for effecting any important improvement in theCity, which the ordinary funds or revenue thereof will notaccomplish: Provided that the sum to be raised in each year shallnot exceed the amount of 10,000 dollars: And provided, also thatthe object for which the money is intended to be raised shall befirst submitted to the President of the United States, and shall beapproved of by him."

Two questions arise on this act.

1st. Does it purport to authorize the Corporation to force thesale of these lottery tickets in States where such sales may beprohibited by law? If it does,

2d. Is the law constitutional?

If the first question be answered in the affirmative, it willbecome necessary to consider the second. If it should be answeredin 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 theCorporation of Washington, we must first examine the words of thegrant. We find in them no expression which looks beyond the limitsof the City. The powers granted are all of them local in theirnature, and all of them such as would, in the common course ofthings, if not necessarily, be exercised

Page 19 U. S. 442

within the city. The subject on which Congress was employed whenframing this act was a local subject; it was not the establishmentof a lottery, but the formation of a separate body for themanagement of the internal affairs of the City, for its internalgovernment, for its police. Congress must have considered itself asdelegating to this corporate body powers for these objects, and forthese objects solely. In delegating these powers, therefore, itseems reasonable to suppose that the mind of the legislature wasdirected to the City alone, to the action of the being they werecreating within the City, and not to any extraterritorialoperations. In describing the powers of such a being, no words oflimitation need be used. They are limited by the subject. But, ifit be intended to give its acts a binding efficacy beyond thenatural limits of its power, and within the jurisdiction of adistinct power, we should expect to find, in the language of theincorporating act, some words indicating such intention.

Without such words, we cannot suppose that Congress designed togive to the acts of the Corporation any other effect beyond itslimits than attends every act having the sanction of local law whenanything depends upon it which is to be transacted elsewhere.

If this would be the reasonable construction of corporate powersgenerally, it is more especially proper in a case where an attemptis made so to exercise those powers as to control and limit thepenal laws of a State. This is an operation which was not,

Page 19 U. S. 443

we think, in the contemplation of the legislature, whileincorporating the City of Washington.

To interfere with the penal laws of a State, where they are notleveled against the legitimate powers of the Union, but have fortheir sole object the internal government of the country, is a veryserious measure which Congress cannot be supposed to adopt lightlyor inconsiderately. The motives for it must be serious and weighty.It would be taken deliberately, and the intention would be clearlyand unequivocally expressed.

An act such as that under consideration ought not, we think, tobe so construed as to imply this intention unless its provisionswere such as to render the construction inevitable.

We do not think it essential to the corporate power in questionthat it should be exercised out of the City. Could the lottery bedrawn in any State of the Union? Does the corporate power toauthorize the drawing of a lottery imply a power to authorize itsbeing drawn without the jurisdiction of a Corporation, in a placewhere it may be prohibited by law? This, we think, would scarcelybe asserted. And what clear legal distinction can be taken betweena power to draw a lottery in a place where it is prohibited by lawand a power to establish an office for the sale of tickets in aplace where it is prohibited by law? It may be urged that the placewhere the lottery is drawn is of no importance to the Corporation,and therefore the act need not be so construed as to give powerover the place, but that the right to sell tickets throughout theUnited

Page 19 U. S. 444

States is of importance, and therefore ought to be implied.

That the power to sell tickets in every part of the UnitedStates might facilitate their sale is not to be denied, but it doesnot follow that Congress designed, for the purpose of giving thisincreased facility, to overrule the penal laws of the severalStates. In the City of Washington, the great metropolis of thenation, visited by individuals from every part of the Union,tickets may be freely sold to all who are willing to purchase. Canit be affirmed that this is so limited a market that theincorporating act must be extended beyond its words, and made toconflict with the internal police of the States, unless it beconstrued to give a more extensive market?

It has been said that the States cannot make it unlawful to buythat which Congress has made it lawful to sell.

This proposition is not denied, and therefore the validity of alaw punishing a citizen of Virginia for purchasing a ticket in theCity of Washington might well be drawn into question. Such a lawwould be a direct attempt to counteract and defeat a measureauthorized by the United States. But a law to punish the sale oflottery tickets in Virginia is of a different character. Before wecan impeach its validity, we must inquire whether Congress intendedto empower this Corporation to do any act within a State which thelaws of that State might prohibit.

Page 19 U. S. 445

In addition to the very important circumstance that the actcontains no words indicating such intention, and that thisextensive construction is not essential to the execution of thecorporate power, the Court cannot resist the conviction that theintention ascribed to this act, had it existed, would have beenexecuted by very different means from those which have beenemployed.

Had Congress intended to establish a lottery for thoseimprovements in the City which are deemed national, the lotteryitself would have become the subject of legislative consideration.It would be organized by law, and agents for its execution would beappointed by the President or in such other manner as the law mightdirect. If such agents were to act out of the District, there wouldbe, probably, some provision made for such a state of things, and,in making such provisions, Congress would examine its power to makethem. The whole subject would be under the control of thegovernment, or of persons appointed by the government.

But in this case, no lottery is established by law, no controlis exercised by the government over any which may be established.The lottery emanates from a corporate power. The Corporation mayauthorize or not authorize it, and may select the purposes to whichthe proceeds are to be applied. This Corporation is a beingintended for local objects only. All its capacities are limited tothe City. This, as well as every other law it is capable of making,is a by-law, and, from its nature, is only coextensive with theCity. It is not probable that

Page 19 U. S. 446

such an agent would be employed in the execution of a lotteryestablished by Congress; but when it acts not as the agent forcarrying into effect a lottery established by Congress, but in itsown corporate capacity, from its own corporate powers, it isreasonable to suppose that its acts were intended to partake of thenature of that capacity and of those powers and, like all its otheracts, be merely local in its nature.

The proceeds of these lotteries are to come in aid of therevenues of the City. These revenues are raised by laws whoseoperation 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 bythese lotteries, or was to form a charge on the City revenue.Coming in aid of the City revenue, they are of the same characterwith it -- the mere creature of a corporate power.

The circumstances that the lottery cannot be drawn without thepermission of the President, and that this resource is to be usedonly for important improvements, have been relied on as giving tothis corporate power a more extensive operation than is given tothose with which it is associated. We do not think so.

The President has no agency in the lottery. It does notoriginate with him, nor is the improvement to which its profits areto be applied to be selected by him. Congress has not enlarged thecorporate power by restricting its exercise to cases of which thePresident might. approve.

Page 19 U. S. 447

We very readily admit that the act establishing the seat ofgovernment, and the act appointing commissioners to superintend thepublic buildings, are laws of universal obligation. We admit toothat the laws of any State to defeat the loan authorized byCongress would have been void, as would have been any attempt toarrest the progress of the canal, or of any other measure whichCongress may adopt. These, and all other laws relative to theDistrict have the authority which may be claimed by other acts ofthe national legislature, but their extent is to be determined bythose rules of construction which are applicable to all laws. Theact incorporating the City of Washington is unquestionably ofuniversal obligation; but the extent of the corporate powersconferred by that act is to be determined by those considerationswhich belong to the case.

Whether we consider the general character of a law incorporatinga City, the objects for which such law is usually made, or thewords in which this particular power is conferred, we arrive at thesame result. The Corporation was merely empowered to authorize thedrawing of lotteries, and the mind of Congress was not directed toany provision for the sale of the tickets beyond the limits of theCorporation. That subject does not seem to have been taken intoview. It is the unanimous opinion of the Court that the law cannotbe construed to embrace it.

Judgment affirmed.

* The plaintiff in error prayed an appeal from the judgment ofthe Court of Hustings, but it was refused, on the ground that therewas no higher State tribunal which could take cognizance of thecase.