THIS was a writ of error to the Quarterly Session Court for the borough of Norfolk, in the State of Virginia, under the 25th section of the judiciary act of 1789, c. 20. it being the highest Court of law or equity of that State having jurisdiction of the case.
Pleas at the Court House of Norfolk borough, before the Mayor, Recorder, and Aldermen of the said borough, on Saturday, the second day of September, one thousand eight hundred and twenty, and in the forty-fifth year of the Commonwealth.
Be it remembered, that heretofore, to wit: At a Quarterly Session Court, held the twenty-sixth day of June, one thousand eight hundred and twenty, the grand jury, duly summoned and impaneled for the said borough of Norfolk, and sworn and charged according to law, made a presentment in these words:
We present P. J. and M. J. Cohen, for vending and selling two halves and four quarter lottery tickets of the National Lottery, to be drawn at Washington, to William H. Jennings, at their office at the corner of Maxwell's wharf, contrary to the act thus made and provided in that case, since January, 1820. On the information of William H. Jennings.
Whereupon the regular process of law was awarded against the said defendants, to answer the said presentment, returnable to the next succeeding term, which was duly returned by the Sergeant of the borough of Norfolk–'Executed.'
And at another Quarterly Session Court, held for the said borough of Norfolk, the twenty-ninth day of August, one thousand eight hundred and twenty, came, as well the attorney prosecuting for the Commonwealth, in this Court, as the defendants, by their attorney, and on the motion of the said attorney, leave is given by the Court to file an information against the defendants on the presentment aforesaid, which was accordingly filed, and is in these words:
Norfolk borough, to wit: Be it remembered, that James Nimmo, attorney for the Commonwealth of Virginia, in the Court of the said borough of Norfolk, cometh into Court, in his proper person, and with leave of the Court, giveth the said Court to understand and be informed, that by an act of the General Assembly of the said Commonwealth of Virginia, entitled, 'An act to reduce into one, the several acts, and parts of acts, to prevent unlawful gaming.' It is, among other things, enacted and declared, that no person or persons shall buy, or sell, within the said Commonwealth, any lottery, or part or share of a lottery ticket, except in such lottery or lotteries as may be authorized by the laws thereof: and the said James Nimmo, as attorney aforesaid, further giveth the Court to understand and be informed, that P. J. and M. J. Cohen, traders and partners, late of the parish of Elizabeth River, and borough of Norfolk aforesaid, being evil disposed persons, and totally regardless of the laws and statutes of the said Commonwealth, since the first day of January, in the year of our Lord one thousand eight hundred and twenty, that is to say, on the first day of June, in that year, and within the said Commonwealth of Virginia, to wit, at the parish of Elizabeth River, in the said borough of Norfolk, and within the jurisdiction of this Court, did then and there unlawfully vend, sell, and deliver to a certain William H. Jennings, two half lottery tickets, and four quarter lottery tickets, of the National Lottery, to be drawn in the City of Washington, that being a lottery not authorized by the laws of this Commonwealth, to the evil example of all other persons, in the like case offending, and against the form of the act of the General Assembly, in that case made and provided.
JAMES NIMMO, for the Commonwealth.
And at this same Quarterly Session Court, continued by adjournment, and held for the said borough of Norfolk, the second day of September, eighteen hundred and twenty, came, as well the attorney prosecuting for the Commonwealth, in this Court, as the defendants, by their attorney, and the said defendants, for plea, say, that they are not guilty in manner and form, as in the information against them is alleged, and of this they put themselves upon the courtry, and the attorney for the Commonwealth doth the same; whereupon a case was agreed by them to be argued in lieu of a special verdict, and is in these words:
Commonwealth against Cohens–case agreed.
In this case, the following statement is admitted and agreed by the parties in lieu of a special verdict: that the defendants, on the first day of June, in the year of our Lord eighteen hundred and twenty, within the borough of Norfolk, in the Commonwealth of Virginia, sold to William H. Jennings a lottery ticket, in the lottery called, and denominated, the National Lottery, to be drawn in the City of Washington, within the District of Columbia.
That the General Assembly of the State of Virginia enacted a statute, or act of Assembly, which went into operation on the first day of January, in the year of our Lord 1820, and which is still unrepealed, in the words following.
No person, in order to raise money for himself or another, shall, publicly or privately, put up a lottery to be drawn or adventured for, or any prize or thing to be raffled or played for: And whosoever shall offend herein, shall forfeit the whole sum of money proposed to be raised by such lottery, raffling or playing, to be recovered by action of debt, in the name of any one who shall sue for the same, or by indictment or information in the name of the commonwealth, in either case, for the use and benefit of the literary fund. Nor shall any person or persons buy or sell, within this Commonwealth, any lottery ticket, or part or share of a lottery ticket, except in such lottery or lotteries as may be authorized by the laws thereof; and any person or persons offending herein, shall forfeit and pay, for every such offence, the sum of one hundred dollars, to be recovered and appropriated in manner last aforesaid.
That the Congress of the United States enacted a statute on the third day of May, in the year of our Lord 1802, entitled, An Act, &c. in the words and figures following:
An Act to incorporate the inhabitants of the City of Washington, in the District of Columbia.
Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That the inhabitants of the City of Washington be constituted a body politic and corporate, by the name of a Mayor and Council of the City of Washington, and by their corporate name, may sue and be sued, implead and be impleaded, grant, receive, and do all other acts as natural persons, and may purchase and hold real, personal and mixed property, or dispose of the same for the benefit of the said city; and may have and use a city seal, which may be altered at pleasure. The City of Washington shall be divided into three divisions or wards, as now divided by the Levy Court for the county, for the purposes of assessment; but the number may be increased hereafter, as in the wisdom of the City Council shall seem most conducive to the general interest and convenience.
Sec. 2. And be it further enacted, That the Council of the City of Washington shall consist of twelve members, residents of the city, and upwards of twenty-five years of age, to be divided into two chambers; the first chamber to consist of seven members, and the second chamber of five members; the second chamber to be chosen from the whole number of councillors, elected by their joint ballot. The City Council to be elected annually by ballot, in a general ticket, by the free white male inhabitants of full age, who have resided twelve months in the city, and paid taxes therein the year preceding the elections being held: the justices of the county of Washington, resident in the city, or any three of them, to preside as judges of election, with such associates as the council may from time to time appoint.
Sec. 3. And be it further enacted, That the first election of members of the City Council, shall be held on the first Monday in June next, and in every year afterwards, at such place in each ward as the judges of the election may prescribe.
Sec. 4. And be it further enacted, That the polls shall be kept open from eight o'clock in the morning, till seven o'clock in the evening, and no longer, for the reception of ballots. On the closing of the poll, the judges shall close and seal their ballot boxes, and meet on the day following, in the presence of the Marshal of the District, on the first election, and the council afterwards, when the seals shall be broken, and the votes counted: within three days after such election, they shall give notice to the persons having the greatest number of legal votes, that they are duly elected, and shall make their return to the Mayor of the city.
Sec. 5. And be it. further enacted, That the Mayor of the city shall be appointed annually by the President of the United States; he must be a citizen of the United States, and a resident of the city prior to his appointment.
Sec. 6. And be it further enacted, That the City Council shall hold their sessions in the City Hall, or until such building is erected, in such place as the Mayor may provide for that purpose, on the second Monday in June, in each year; but the Mayor may convene them oftener, if the public good require their deliberations; three fourths of the members of each Council, may be a quorum to do business, but a smaller number may adjourn from day to day: they may compel the attendance of absent members in such manner, and under such penalties, as they may, by ordinance, provide: they shall appoint their respective Presidents, who shall preside during their sessions, and shall vote on all questions where there is an equal division: they shall settle their rules of proceedings, appoint their own officers, regulate their respective fees, and remove them at pleasure: they shall judge of the elections, returns, and qualifications of their own members, and may, with the concurrence of three-fourths of the whole, expel any member for disorderly behaviour, or malconduct in office, but not a second time for the same offence: they shall keep a journal of their proceedings, and enter the yeas and nays on any question, resolve or ordinance, at the request of any member, and their deliberations shall be public. The Mayor shall appoint to all offices under the Corporation. All ordinances or acts passed by the City Council, shall be sent to the Mayor for his approbation, and when approved by him, shall then be obligatory as such. But, if the said Mayor shall not approve of such ordinance or act, he shall return the same within five days, with his reasons in writing therefor; and if three-fourths of both branches of the City Council, on reconsideration thereof, approve of the same, it shall be in force in like manner as if he had approved it, unless the City Council, by their adjournment, prevent its return.
Sec. 7. And be it further enacted, That the Corporation aforesaid shall have full power and authority to pass all by-laws and ordinances to prevent and remove nuisances; to prevent the introduction of contagious diseases within the City; to establish night watches or patrols, and erect lamps; to regulate the stationing, anchorage, and mooring of vessels; to provide for licensing and regulating auctions, retailers of liquors, hackney carriages, waggons, carts and drays, and pawn-brokers within the city; to restrain or prohibit gambling, and to provide for licensing, regulating, or restraining theatrical or other public amusements within the City; to regulate and establish markets; to erect and repair bridges; to keep in repair all necessary streets, avenues, drains and sewers, and to pass regulations necessary for the preservation of the same, agreeably to the plan of the said City; to provide for the safe keeping of the standard of weights and measures fixed by Congress, and for the regulation of all weights and measures used in the City; to provide for the licensing and regulating the sweeping of chimneys, and fixing the rates thereof; to establish and regulate fire wards and fire companies; to regulate and establish the size of bricks that are to be made and used in the City; to sink wells, and erect and repair pumps in the streets; to impose and appropriate fines, penalties and forfeitures for breach of their ordinances; to lay and collect taxes; to enact by-laws for the prevention and extinguishment of fires; and to pass all ordinances necessary to give effect and operation to all the powers vested in the Corporation of the City of Washington: Provided, That the by-laws, or ordinances of the said Corporation, shall be in no wise obligatory upon the persons of non-residents of the said City, unless in cases of intentional violation of the by-laws or ordinances previously promulgated. All the fines, penalties and forfeitures imposed by the Corporation of the City of Washington, if not exceeding twenty dollars, shall be recovered before a single magistrate, as small debts are by law recoverable; and if such fines, penalties and forfeitures, exceed the sum of twenty dollars, the same shall be recovered by action of debt, in the District Court of Columbia, for the County of Washington, in the name of the Corporation, and for the use of the City of Washington.
Sec. 8. And be it further enacted, That the person or persons appointed to collect any tax imposed in virtue of the powers granted by this Act, shall have authority to collect the same, by distress and sale of the goods and chattels of the person chargeable therewith; no sale shall be made, unless ten days previous notice thereof be given: no law shall be passed by the City Council subjecting vacant or unimproved city lots, or parts of lots, to be sold for taxes.
Sec. 9. And be it further enacted, That the City Council shall provide for the support of the poor, infirm and diseased of the City.
Sec. 10. Provided always, and be it further enacted, That no tax shall be imposed by the City Council on real property in the said City, at any higher rate than three quarters of one per centum, on the assessment valuation of such property.
Sec. 11. And be it further enacted, That this Act shall be in force for two years from the passing thereof, and from thence to the end of the next session of Congress thereafter, and no longer.
And another act, on the 23d day of February, 1804, entitled 'An Act supplementary to an Act, entitled, an Act to incorporate the inhabitants of the City of Washington, in the District of Columbia.'
'Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That the Act, entitled, an Act to incorporate the inhabitants of the City of Washington, in the District of Columbia, except so much of the same as is consistent with the provisions of this Act, be, and the same is hereby continued in force, for and during the term of fifteen years from the end of the next session of Congress.
Sec. 2. And be it further enacted, That the Council of the City of Washington, from and after the period for which the members of the present Council have been elected, shall consist of two chambers, each of which shall be composed of nine members, to be chosen by distinct ballots, according to the directions of the Act to which this is a supplement; a majority of each chamber shall constitute a quorum to do business. In case vacancies shall occur in the Council, the chamber in which the same may happen, shall supply the same by an election by ballot, from the three persons next highest on the list to those elected at the preceding election, and a majority of the whole number of the chamber in which such vacancy may happen, shall be necessary to make an election.
Sec. 3. And be it further enacted, That the Council shall have power to establish and regulate the inspection of flour, tobacco, and salted provisions, the gauging of casks and liquors, the storage of gunpowder, and all naval and military stores, not the property of the United States, to regulate the weight and quality of bread, to tax and license hawkers and peddlers, to restrain or prohibit tippling houses, lotteries, and all kinds of gaming, to superintend the health of the City, to preserve the navigation of the Potomac and Anacostia rivers adjoining the City, to erect, repair, and regulate public wharves, and to deepen docks and basins, to provide for the establishment and superintendence of public schools, to license and regulate, exclusively, hackney coaches, ordinary keepers, retailers and ferries, to provide for the appointment of inspectors, constables, and such other officers as may be necessary to execute the laws of the Corporation, and to give such compensation to the Mayor of the City as they may deem fit.
Sec. 4. And be it further enacted, That the Levy Court of the county of Washington shall not hereafter possess the power of imposing any tax on the inhabitants of the City of Washington.'
That the Congress of the United States, on the 4th day of May, in the year of our Lord 1812, enacted another statute, entitled, An Act further to amend the Charter of the City of Washington.
'Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That from and after the first Monday in June next, the Corporation of the City of Washington shall be composed of a Mayor, a Board of Aldermen, and a Board of Common Council, to be elected by ballot, as hereafter directed; the Board of Aldermen shall consist of eight members, to be elected for two years, two to be residents of, and chosen from, each ward, by the qualified voters therein; and the Board of Common Council shall consist of twelve members, to be elected for one year, three to be residents of, and chosen from, each ward, in manner aforesaid: and each board shall meet at the Council Chamber on the second Monday in June next, (for the despatch of business,) at ten o'clock in the morning, and on the same day, and at the same hour, annually, thereafter. A majority of each board shall be necessary to form a quorum to do business, but a less number may adjourn from day to day. The Board of Aldermen, immediately after they shall have assembled in consequence of the first election, shall divide themselves by lot into two classes; the seats of the first class shall be vacated at the expiration of one year, and the seats of the second class shall be vacated at the expiration of two years, so that one half may be chosen every year. Each board shall appoint its own President from among its own members, who shall preside during the sessions of the board, and shall have a casting vote on all questions where there is an equal division; provided such equality shall not have been occasioned by his previous vote.
Sec. 2. And be it further enacted, That no person shall be eligible to a seat in the Board of Aldermen or Board of Common Council, unless he shall be more than twenty-five years of age, a free white male citizen of the United States, and shall have been a resident of the City of Washington one whole year next preceding the day of the election; and shall, at the time of his election, be a resident of the ward for which he shall be elected, and possessed of a freehold estate in the said City of Washington, and shall have been assessed two months preceding the day of election. And every free white male citizen of lawful age, who shall have resided in the City of Washington for the space of one year next preceding the day of election, and shall be a resident of the ward in which he shall offer to vote, and who shall have been assessed on the books of the Corporation, not less than two months prior to the day of election, shall be qualified to vote for members to serve in the said Board of Aldermen and Board of Common Council, and no other person whatever shall exercise the right of suffrage at such election.
Sec. 3. And be it further enacted, That the present Mayor of the City of Washington shall be, and continue such, until the second Monday in June next, on which day, and on the second Monday in June annually thereafter, the Mayor of the said City shall be elected by ballot of the Board of Aldermen and Board of Common Council, in joint meeting, and a majority of the votes of all the members of both boards shall be necessary to a choice; and if there should be an equality of votes between two persons after the third ballot, the two houses shall determine by lot. He shall, before he enters upon the duties of his office, take an oath or affirmation in the presence of both boards, 'lawfully to execute the duties of his office to the best of his skill and judgment, without favour or partiality.' He shall, ex officio, have, and exercise all the powers, authority, and jurisdiction of a Justice of the Peace, for the County of Washington, within the said county. He shall nominate, and with the consent of a majority of the members of the Board of Aldermen, appoint to all offices under the Corporation, (except the commissioners of elections,) and every such officer shall be removed from office on the concurrent remonstrance of a majority of the two boards. He shall see that the laws of the Corporation be duly executed, and shall report the negligence or misconduct of any officer to the two boards. He shall appoint proper persons to fill up all vacancies during the recess of the Board of Aldermen, to hold such appointment until the end of the then ensuing session. He shall have power to convene the two Boards, when, in his opinion, the good of the community may require it, and he shall lay before them, from time to time, in writing, such alterations in the laws of the Corporation as he shall deem necessary and proper, and shall receive for his services annually, a just and reasonable compensation, to be allowed and fixed by the two boards, which shall neither be increased or diminished during the period for which he shall have been elected. Any person shall be eligible to the office of Mayor, who is a free white male citizen of the United States, who shall have attained to the age of thirty years, and who shall be a bona fide owner of a freehold estate in the said City, and shall have been a resident in the said City two years immediately preceding his election, and no other person shall be eligible to the said office. In case of the refusal of any person to accept the office of Mayor, upon his election thereto, or of his death, resignation, inability or removal from the City, the said two boards shall elect another in his place, to serve the remainder of the year.
Sec. 4. And be it further enacted, That the first election for members of the Board of Aldermen, and Board of Common Council, shall be held on the first Monday in June next, and on the first Monday in June annually thereafter. The first election to be held by three commissioners to be appointed in each ward by the Mayor of the City, and at such place in each ward as he may direct; and all subsequent elections shall be held by a like number of Commissioners, to be appointed in each ward by the two boards, in joint meeting, which several appointments, except the first, shall be at least ten days previous to the day of each election. And it shall be the duty of the Mayor for the first election, and of the commissioners for all subsequent elections, to give at least five days public notice of the place in each ward where such elections are to be held. The said commissioners shall, before they receive any ballot, severally take the following oath or affirmation, to be administered by the Mayor of the City, or any Justice of the Peace for the county of Washington: 'I, A. B. do solemnly swear or affirm, (as the case may be) that I will truly and faithfully receive, and return the votes of such persons as are by law entitled to vote for members of the Board of Aldermen, and Board of Common Council, in ward No. ––, according to the best of my judgment and understanding, and that I will not, knowingly, receive or return the vote of any person who is not legally entitled to the same, so help me God.' The polls shall be opened at ten o'clock in the morning, and be closed at seven o'clock in the evening, of the same day. Immediately on closing the polls, the commissioners of each ward, or a majority of them, shall count the ballots, and make out under their hands and seals a correct return of the two persons for the first election, and of the one person for all subsequent elections, having the greatest number of legal votes, together with the number of votes given to each, as members of the Board of Aldermen: and of the three persons having the greatest number of legal votes, together with the number of votes given to each, as Members of the Board of Common Council. And the two persons at the first election, and the one person at all subsequent elections, having the greatest number of legal votes for the Board of Aldermen; and the three persons having the greatest number of legal votes for the Board of Common Council, shall be duly elected; and in all cases of an equality of votes, the commissioners shall decide by lot. The said returns shall be delivered to the Mayor of the City, on the succeeding day, who shall cause the same to be published in some news-paper printed in the city of Washington. A duplicate return, together with a list of the persons who voted at such election, shall also be made by the said commissioners, to the Register of the City, on the day succeeding the election, who shall preserve and record the same, and shall, within two days thereafter, notify the several persons so returned, of their election; and each board shall judge of the legality of the elections, returns and qualifications of its own members, and shall supply vacancies in its own body, by causing elections to be made to fill the same, in the ward, and for the Board in which such vacancies shall happen, giving at least five days notice previous thereto; and each Board shall have full power to pass all rules necessary and requisite to enable itself to come to a just decision in cases of a contested election of its own members: and the several members of each Board shall, before entering upon the duties of their office, take the following oath or affirmation: 'I do swear, (or solemnly, sincerely, and truly affirm and declare, as the case may be,) that I will faithfully execute the office of to the best of my knowledge and ability,' which oath or affirmation shall be administered by the Mayor, or some Justice of the Peace, for the county of Washington.
Sec. 5. And be it further enacted, That in addition to the powers heretofore granted to the Corporation of the City of Washington, by an act, entitled, 'An Act to incorporate the inhabitants of the City of Washington, in the District of Columbia,' and an act, entitled, 'An Act, supplementary to an act, entitled, an act to incorporate the inhabitants of the City of Washington, in the District of Columbia,' the said Corporation shall have power to lay taxes on particular wards, parts, or sections of the City, for their particular local improvements.
That after providing for all objects of a general nature, the taxes raised on the assessable property in each ward, shall be expended therein, and in no other; in regulating, filling up and repairing of streets and avenues, building of bridges, sinking of wells, erecting pumps, and keeping them in repair; in conveying water in pumps, and in the preservation of springs; in erecting and repairing wharves; in providing fire engines and other apparatus for the extinction of fires, and for other local improvements and purposes, in such manner as the said Board of Aldermen and Board of Common Council shall provide; but the sums raised for the support of the poor, aged and infirm, shall be a charge on each ward in proportion to its population or taxation, as the two Boards shall decide. That whenever the proprietors of two thirds of the inhabited houses, fronting on both sides of a street, or part of a street, shall by petition to the two branches, express the desire of improving the same, by laying the curbstone of the foot pavement, and paving the gutters or carriage way thereof, or otherwise improving said street, agreeably to its graduation, the said Corporation shall have power to cause to be done at any expense, not exceeding two dollars and fifty cents per front foot, of the lots fronting on such improved street or part of a street, and charge the same to the owners of the lots fronting on said street, or part of a street, in due proportion; and also on a like petition to provide for erecting lamps for lighting any street or part of a street, and to defray the expense thereof by a tax on the proprietors or inhabitants of such houses, in proportion to their rental or valuation, as the two Boards shall decide.
Sec. 6. And be it further enacted, That the said Corporation shall have full power and authority to erect and establish hospitals or pest houses, work houses, houses of correction, penitentiary, and other public buildings for the use of the City, and to lay and collect taxes for the defraying the expenses thereof; to regulate party and other fences, and to determine by whom the same shall be made and kept in repair; to lay open streets, avenues, lanes and alleys, and to regulate or prohibit all inclosures thereof, and to occupy and improve for public purposes, by and with the consent of the President of the United States, any part of the public and open spaces or squares in said city, not interfering with any private rights; to regulate the measurement of, and weight, by which all articles brought into the city for sale shall be disposed of; to provide for the appointment of appraisers, and measurers of builders' work and materials, and also of wood, coal, grain and lumber; to restrain and prohibit the nightly and other disorderly meetings of slaves, free negroes and mulattoes, and to punish such slaves by whipping, not exceeding forty stripes, or by imprisonment not exceeding six calendar months, for any one offence; and to punish such free negroes and mulattoes for such offences, by fixed penalties, not exceeding twenty dollars for any one offence; and in case of inability of any such free negro or mulatto to pay and satisfy and such penalty and costs thereon, to cause such free negro or mulatto to be confined to labour for such reasonable time, not exceeding six calendar months, for any one offence, as may be deemed equivalent to such penalty and costs; to cause all vagrants, idle or disorderly persons, all persons of evil life or ill fame, and all such as have no visible means of support, or are likely to become chargeable to the City as paupers, or are found begging or drunk in or about the streets, or loitering in or about tippling houses, or who can show no reasonable cause of business or employment in the City; and all suspicious persons, and all who have no fixed place of residence, or cannot give a good account of themselves, all eves-droppers and night walkers, all who are guilty of open profanity, or grossly indecent language or behaviour publicly in the streets, all public prostitutes, and such as lead a notoriously lewd or lascivious course of life, and all such as keep public gaming tables, or gaming houses, to give security for their good behaviour for a reasonable time, and to indemnify the City against any charge for their support, and in case of their refusal or inability to give such security, to cause them to be confined to labour for a limited time, not exceeding one year at a time, unless such security should be sooner given. But if they shall afterwards be found again offending, such security may be again required, and for want thereof, the like proceedings may again be had, from time to time, as often as may be necessary; to prescribe the terms and conditions upon which free negroes and mulattoes, and others who can show no visible means of support, may reside in the City; to cause the avenues, streets, lanes and alleys to be kept clean, and to appoint officers for that purpose. To authorize the drawing of lotteries for effecting any important improvement in the City, which the ordinary funds or revenue thereof will not accomplish. Provided, That the amount to be raised in each year, shall not exceed the sum of ten thousand dollars: And provided also, that the object for which the money is intended to be raised, shall be first submitted to the President of the United States, and shall be approved of by him. To take care of, preserve and regulate the several burying grounds within the City; to provide for registering of births, deaths and marriages; to cause abstracts or minutes of all transfers of real property, both freehold and leasehold, to be lodged in the Registry of the City, at stated periods; to authorize night watches and patroles, and the taking up and confining by them, in the night time, of all suspected persons; to punish by law corporally any servant or slave guilty of a breach of any of their by-laws or ordinances, unless the owner or holder of such servant or slave, shall pay the fine annexed to the offence; and to pass all laws which shall be deemed necessary and proper for carrying into execution the foregoing powers, and all other powers vested in the Corporation, or any of its officers, either by this act, or any former act.
Sec. 7. And be it further enacted, That the Marshal of the District of Columbia shall receive, and safely keep, within the jail for Washington county, at the expense of the City, all persons committed thereto under the sixth section of this act, until other arrangements be made by the Corporation for the confinement of offenders, within the provisions of the said section; and in all cases where suit shall be brought before a Justice of the Peace, for the recovery of any fine or penalty arising or incurred for a breach of any by-law or ordinance of the Corporation, upon a return of 'nulla bona' to any fieri facias issued against the property of the defendant or defendants, it shall be the duty of the Clerk of the Circuit Court for the County of Washington, when required, to issue a writ of capias ad satisfaciendum against every such defendant, returnable to the next Circuit Court for the County of Washington thereafter, and which shall be proceeded on as in other writs of the like kind.
Sec. 8. And be it further enacted, That unimproved lots in the City of Washington, on which two years taxes remain due and unpaid, or so much thereof as may be necessary to pay such taxes, may be sold at public sale for such taxes due thereon: Provided, that public notice be given of the time and place of sale, by advertising in some newspaper printed in the City of Washington, at least six months, where the property belongs to persons residing out of the United States; three months where the property belongs to persons residing in the United States, but without the limits of the District of Columbia; and six weeks where the property belongs to persons residing within the District of Columbia or City of Washington; in which notice shall be stated the number of the lot or lots, the number of the square or squares, the name of the person or persons to whom the same may have been assessed, and also the amount of taxes due thereon: And provided, also, that the purchaser shall not be obliged to pay at the time of such sale, more than the taxes due, and the expenses of sale; and that, if within two years from the day of such sale, the proprietor or proprietors of such lot or lots, or his or their heirs, representatives, or agents, shall repay to such purchaser the moneys paid for the taxes and expenses as aforesaid, together with ten per centum per annum as interest thereon, or make a tender of the same, he shall be reinstated in his original right and title; but if no such payment or tender be made within two years next after the said sale, then the purchaser shall pay the balance of the purchase money of such lot or lots into the City Treasury, where it shall remain subject to the order of the original proprietor or proprietors, his or their heirs, or legal representatives; and the purchaser shall receive a title in fee simple to the said lot or lots, under the hand of the Mayor, and seal of the Corporation, which shall be deemed good and valid in law and equity.
Sec. 9. And be it further enacted, That the said Corporation shall, in future, be named and styled, 'The Mayor, Aldermen, and Common Council of the City of Washington;' and that if there shall have been a non-election or informality of a City Council, on the first Monday in June last, it shall not be taken, construed, or adjudged, in any manner, to have operated as a dissolution of the said Corporation, or to affect any of its rights, privileges, or laws passed previous to the second Monday in June last, but the same are hereby declared to exist in full force.
Sec. 10. And be it further enacted, That the Corporation shall, from time to time, cause the several wards of the City to be so located, as to give, as nearly as may be, an equal number of votes to each ward; and it shall be the duty of the Register of the City, or such officer as the Corporation may hereafter appoint, to furnish the commissioners of election for each ward, on the first Monday in June, annually, previous to the opening of the polls, a list of the persons having a right to vote, agreeably to the provisions of the second section of this act.
Sec. 11. And be it further enacted, That so much of any former act as shall be repugnant to the provisions of this act, be, and the same is hereby repealed.
Which statutes are still in force and unrepealed. That the lottery, denominated the National Lottery, before mentioned, the ticket of which was sold by the defendants as aforesaid, was duly created by the said Corporation of Washington, and the drawing thereof, and the sale of the said ticket, was duly authorized by the said Corporation, for the objects and purposes, and in the mode directed by the said statute of the Congress of the United States. If, upon this case, the Court shall be of opinion, that the acts of Congress before mentioned were valid, and on the true construction of these acts, the lottery ticket sold by the said defendants as aforesaid, might lawfully be sold within the State of Virginia, notwithstanding the act or statute of the General Assembly of Virginia prohibiting such sale, then judgment to be entered for the defendants. But if the Court should be of opinion, that the statute or act of the General Assembly of the State of Virginia, prohibiting such sale, is valid, notwithstanding the said acts of Congress, then judgment to be entered, that the defendants are guilty, and that the Commonwealth recover against them one hundred dollars and costs.
And thereupon the matters of law arising upon the said case agreed being argued, it seems to the Court here, that the law is for the Commonwealth, and that the defendants are guilty in manner and form, as in the information against them is alleged, and they do assess their fine to one hundred dollars besides the costs. Therefore, it is considered by the Court, that the Commonwealth recover against the said defendants, to the use of the President and Directors of the Literary Fund, one hundred dollars, the fine by the Court aforesaid, in manner aforesaid assessed, and the costs of this prosecution; and the said defendants may be taken, &c.
From which judgment the defendants, by their counsel, prayed an appeal to the next Superior Court of law of Norfolk county, which was refused by the Court, inasmuch as cases of this sort are not subject to revision by any other Court of the Commonwealth. Commonwealth's costs, $31 50 cents.
Mr. Barbour, for the defendant in error, moved to dismiss the writ of error in this case, and stated three grounds upon which he should insist that the Court had not jurisdiction: (1.) Because of the subject matter of the controversy, without reference to the parties. (2.) That considering the character of one of the parties, if the Court could have jurisdiction at all, it must be original, and not appellate. (3.) And, finally, that it can take neither original nor appellate jurisdiction.
1. As to the first point: it is conceded by all, that the Federal Government is one of limited powers. This distinguishing trait equally characterises all its departments; it is with the judicial department only, that the present inquiry is connected. It is in the 2d section of the 3d article of the constitution, that we find an enumeration of the objects to which the judicial power of the Union extends. That part of it which relates to the present discussion, declares, that 'the judicial power shall extend to all cases in law and equity, arising under this constitution, the laws of the United States, and treaties made, or which shall be made, under their authority.' It is not pretended, that any treaty has any sort of relation to the present case: before, then, this Court can take jurisdiction, it must be shown, that this is a case arising either under the constitution, or a law of the United States. I shall endeavor to prove, that it does not belong to either description. These two classes of cases are obviously put in contradistinction to each other; and there will be no difficulty in showing to the Court the difference in their character. The constitution contains two different kinds of provisions; the one, (if I may use the expression,) self executed, or capable of self execution; the other, only executory, and requiring legislative enactment to give them operation; thus, the 2d section of the 4th article, which declares, that 'the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States;' the 10th section of the 1st article, which prohibits any State from making any thing but gold and silver coin, a tender in payment of debts; from passing any law 'impairing the obligation of contracts;' and the prohibition to Congress, in the 9th section, and to the States in the 10th section of the same article, to pass 'any bill of attainder, or ex post facto law.' are all examples of the self-executed provisions of the constitution; by which, I mean to say, that the constitution, in these instances, is, per se, operative, without the aid of legislation. On the contrary, the various provisions of the 8th section of the same article, such, for example, 'as the power to establish an uniform system of naturalization, and uniform laws on the subject of bankruptcy,' are executory only; that is, without an act of legislation, they have no operative effect.
The cases, then, arising under the constitution, are those which arise under its self-executed provisions; and those arising under the laws of the United States, are those which occur under some law, passed in virtue of the executory provisions of the constitution. If this idea be correct, then this is not a case arising under the constitution; and it does not correspond with the other part of the description, that is, it does not arise under a law of the United States. In the first place, this Court, in the case of Hepburn v. Elzy,*fn1
decided, that the District of Columbia was not a State, within the meaning of the constitution, and that, therefore, a citizen of that District could not sustain an action against a citizen of Virginia, in the Circuit Court of that State. Now, it would sound curiously, to call a law passed for a District, not itself exalted to the dignity of a State, a law of the United States. It would seem more strange to call a law passed by the Corporation of Washington, for the local purposes of Washington, a law of the United States, and yet such is the character of the law under which this case arises; for the act of Congress did not itself create the lottery, but authorized the Corporation of Washington to do it.
As to this sub-legislation, legislative power is a trust which cannot be transferred. Delegatus non potest delegare. If this can be exercised by substitution, other legislative powers can also. I would than inquire, whether in execution of the power 'to lay and collect taxes,' 'to declare war,' &c. Congress could authorize the State legislatures to do these things. It is a misnomer, to call by the name of a law of the United States, any act passed for the District of Columbia, though enacted by Congress, without calling in the aid of a Corporation. It has been well observed by a former member of this Court, that every citizen in the United States, sustains a two-fold political character, one in relation to the Federal, the other in relation to the State Governments. To put the proposition in other words, it may be stated thus: a two-fold system of legislation pervades the United States; the one of which I will call Federal, the other municipal. The first belongs by the constitution of the United States to Congress, and consists of the powers of war, peace, commerce, negotiation, and those general powers, which make up our external relations, together with a few powers of an internal kind, which require uniformity in their operation: the second belongs to the States, and consists of whatever is not included in the first, embracing particularly every thing connected with the internal police and economy of the several States. If this system knew no exception in its operation, the present question would never have arisen; for no man would ever dream of calling a law of Virginia or Maryland, a law of the United States. But there are certain portions of territory within the United States, of which the District of Columbia is one, in which there is no State government to act: in relation to these, congress, by the constitution, exercises not only federal, but municipal legislation also: and as the whole difficulty in this case has arisen out of this blending together of two different kinds of legislative power; so, that difficulty will be removed by a careful attention to the difference in the nature and character of these powers, and the extent of their operation respectively. Whenever a question arises, whether a law passed by Congress is a law of the United States, we have only to inquire whether it is constitutionally passed in execution of any of the federal powers: if it be, it is properly a law of the United States; since the federal powers are co-extensive with the limits of the United States; and this, though the particular act, may be confined to certain persons, places or things. Thus, a law establishing federal Courts in a particular State, is a law of the United States; for though its immediate operation is upon one State, yet it is in execution of a power co-extensive with the United States; but if a law, though passed by Congress, be passed in execution of a municipal power, as a law to pave the streets of Washington, then it cannot, in any propriety of language, be called a law of the United States. It is an axiom in politics, that legislative power has no operation, beyond the territorial limits under its authority. I do not now speak of the doctrine of the lex loci; of that comity, by which the different States of the civilized world, receive the laws of others, as governing in certain cases of contract, or questions of a civil nature. I speak of the intrinsic energy of the legislative power, its operation per se.
If this principle be true, is there any thing in this case to impair its force? It is admitted on all hands, that this law was passed in virtue of the power given by the constitution to exercise exclusive legislation, over such district, not exceeding ten miles square, as should become the seat of the federal government. If we look into the history of the country, the debates of the Conventions, or the declarations of the Federalist, we shall alike arrive at the conclusion, that his power was given in consequence of an incident which had occurred in Philadelphia, and the necessity which thence seemed to result, of Congress deliberating uninterrupted and unawed. The motive, then, for granting this power, would not lead to an extension of it; still less will the terms; for, they are as restrictive as could by possibility be used. The district shall not exceed ten miles square, and as was argued in the Convention of Virginia, may not exceed one mile: so far from the principle being impaired then, it is greatly strengthened by the language of this provision. See to what consequences we should be led by the doctrine, that because this lottery was authorized by Congress, therefore, the tickets might be sold in any State, against its laws, with impunity. The same charter authorizes the Corporation of Washington to grant licenses to auctioneers and retailers of spirituous liquors: now, upon the doctrines contended for, what will hinder the Corporation from granting licenses to persons, to vend goods and liquors in Virginia, by a Corporation license, contrary to the laws of Virginia? and thus, greatly impair the revenue which the State raises from these licenses; as it is said, that a saleable quality is of the essence, and constitutes the only value of a lottery ticket, and that therefore it is not competent to any State to abridge the value of that, which was rightfully created by the Legislature of the Union? Would not the same reasoning justify the holders of these Corporation licenses, equally to trample upon the laws of the State; lest, for want of a market, their merchandise and liquors might not be sold, and thus the value of their license diminished. These are cases, in which the revenue of a State would be impaired, as well as the laws for the protection of its morals. Such is the law of Virginia, prohibiting the use of billiard tables. If Congress should authorize licenses to be issued, by the Corporation of Washington, for using them, and if this law have an operation beyond the territorial limits of the District, then has Virginia lost all power of regulating the conduct of her own citizens.
The solution of the whole difficulty lies in this: That though the laws of Congress, when passed in execution of a federal power, extend over the Union, and being laws of the United States, are a part of the supreme law of the land: yet, a law passed like the one in question, in execution of the power of municipal legislation, extends only so far, as the power under which it was passed–that is, to the boundaries of the District; that, therefore, it is no law of the United States, and consequently not a part of the supreme law of the land. Nor is there any thing novel in the idea of two powers residing in the same body, at the same time, and over the same subject, of a different kind. The idea is familiarly illustrated by cases of ordinary occurrence in the judiciary. For the same trespass, an action, or indictment, may be brought before the same Court, and a different judgment pronounced, as one or the other mode is pursued. So the same Court has frequently common law and chancery jurisdiction, and pronounces a different judgment in relation to the same subject, as they are exercising the one or the other jurisdiction.
Let us look further at the consequences of calling the laws of the District, laws of the United States. By the sixth article of the Constitution, laws of the United States made in pursuance of the Constitution, are declared a part of the supreme law of the land, and the judges in every State shall be bound thereby, any thing in the laws of their State to the contrary notwithstanding. If, then, laws of the District be laws of the United States, within the meaning of the constitution, it will follow, that they may be carried to the extent of an interference with every department of State legislation; and whenever they shall so interfere, they are to be considered of paramount authority. Suppose the law of Virginia to declare a deed for land void against a purchaser for valuable consideration, without notice, unless recorded upon the party's acknowledgment, or the evidence of three witnesses. Suppose a law of the District to dispense with record, or to be satisfied with two witnesses. If one citizen should convey to another citizen of the District, land lying in Virginia, in conformity with the District law, upon the principle now contended for, the party must recover, in the teeth of the law of Virginia. It will be admitted, that a law passed, like the one in question, by one State, might be repelled by another: it will, also, be admitted, that if Congress had, (as some think they have a right to do, but in which I do not concur,) established here a local legislature, which had passed the law in question, its effects might have been repelled from the States by penal sanctions.
But if it be said, that as the dominion over the District flows from the same source with every other power possessed by the government of the Union, as it is executed by the same Congress, as it was created for the common good, and for universal purposes, that it must be of equal obligation throughout the Union in its effects, with any power known to the constitution; from whence it is inferred, that the law in question can encounter no geographical impediments, but that its march is through the Union: The answer is, that the federal powers of Congress, in their execution, encounter no geographical impediments, because no limits, short of the boundaries of the Union, are prescribed to them; but the legislative power over the District, in its execution, does encounter geographical impediments, because the limits of the District are distinctly prescribed, as the bound of its extent, and as an insurmountable barrier to its further march.
It may be said, too, that this case bears no resemblance to that of one State repelling, by penal sanctions, the effects of the laws of another; because it is said, one State is no party to the laws of another; whereas here, the law is its own law, as being represented in Congress, and thereby contributing to its passage, and capable in part of effecting its repeal. It will be seen at once, that this principle would prove too much, and, therefore, that it cannot be a sound one; for if the States are to acquiesce in this instance, because they are represented in Congress, and have, therefore, an agency in making and repealing laws, the same reasoning would justify Congress in legislating beyond their delegated powers; for example, prescribing a general course of descents. It is obvious, that they might contribute as much to the passage and repeal of this law, as any other, and yet this ground will not be attempted to be sustained. If, then, they are not bound, because of their representation in Congress, to acquiesce in the assumption of a power not granted; they are surely as little bound, upon that ground, to permit a power, confined to ten miles square, to extend its operation with the limits of the United States.
If, then, the law in question is not a law of the United States, in the sense of that expression in the constitution, this is not a case arising under the law of the United States, and, consequently, the jurisdiction of this Court fails as to the subject matter.
2. My second proposition is, that if this Court could entertain jurisdiction of the case at all, it must be original, and not appellate jurisdiction. This has reference to the character of one of the parties in the present contest. The constitution of the United States, after having carved out the whole mass of jurisdiction which it gives to the federal judiciary, and enumerated its several objects, proceeds in the second clause of the second section of the third article to distribute that jurisdiction amongst the several Courts. To the Supreme Court, it gives original jurisdiction in two classes of cases; to wit, 'in all cases affecting ambassadors, other public ministers and consuls, and those in which a State shall be a party;' in all the other cases to which the judicial power of the United States extends, it gives the Supreme Court appellate jurisdiction. This Court, in the case of Marbury v. Madison,*fn2
thus expresses itself in relation to this clause of the constitution: 'If Congress remains at liberty to give this Court appellate jurisdiction, where the constitution has declared their jurisdiction shall be original; and original jurisdiction, where the constitution has declared their jurisdiction shall be appellate, the distribution of jurisdiction made in the constitution, is form without substance.' Again, the Court says, 'the plain import of the words seems to be, that in one class of cases, its jurisdiction is original, not appellate; in the other, it is appellate, not original;' and accordingly, in that case, which was an application for a mandamus to the then Secretary of State, to issue commissions to certain Justices of the Peace in the District of Columbia, the Court, after distinctly admitting that the parties had a right, yet refused to grant the mandamus, upon the ground, that it would be an exercise of original jurisdiction; that not being one of the cases, in which that kind of jurisdiction was given them by the constitution, it was not competent to Congress to give it.
It appears, then, from the constitution, that where a State is a party, this Court has original jurisdiction: it appears from the opinion of this Court just quoted, that it excludes appellate jurisdiction. But a State is a party to the present case; it is a judgment for a penalty inflicted for the violation of a public law; the prosecution commenced by a presentment of a grand jury, carried on by an information filed by the attorney for the Commonwealth, and the judgment rendered in the name of the Commonwealth; and the case has come before this Court by a writ of error, which is surely appellate jurisdiction. If, then, when a State is a party, this Court have original jurisdiction; if the grant of original, exclude appellate jurisdiction; if, as in this case, a State be a party; and if the jurisdiction now claimed is clearly appellate, then it follows, as an inevitable conclusion, that in this case this Court cannot take jurisdiction in this way, if they could take it at all.
3. My last proposition is, that considering the nature of this case, and that a State is a party, the judicial power of the United States does not extend to the case, and that, therefore, this Court cannot take jurisdiction at all. This is a criminal case, both upon principle and authority. A crime is defined to be, an act committed or omitted in violation of some public law commanding or forbidding it. The offence in this case is one of commission. A prosecution in the name of a State, by information, as this has been shown to be, to inflict a punishment upon this offence, is, therefore, a prosecution for a crime; in other words, a criminal case. Upon authority, too, penal actions are called in the books criminal actions. But if it be a criminal case, it is conceded, that the Courts of the United States cannot take original jurisdiction over it–inasmuch as that right fully belongs to the Courts of the State whose laws have been violated; and that jurisdiction having once rightfully attached, they have a right to proceed to judgment; but if they have no original jurisdiction, I have shown, in the discussion of the second point, that they cannot have appellate jurisdiction, and it consequently follows, that they cannot have jurisdiction at all.
I will now endeavor to show, from general principles, in connection with the fair construction of the third article of the constitution, that without reference to the particular character of the case, whether as criminal of civil, the judicial power of the United States does not extend to it, on account of the character of one of the parties; in other words, because one of the parties is a State. It is an axiom in politics, that a sovereign and independent State is not liable to the suit of any individual, nor amenable to any judicial power, without its own consent. All the States of this Union were sovereign and independent, before they became parties to the federal compact: hence, I infer, that the judicial power of the United States would not have extended to the States, if it had not been so extended to them, eo nomine, upon the face of the constitution. But if it can reach them only because it is expressly given in relation to them, then it can only reach them to the extent to which it is given. By the original text of the constitution, the judicial power of the Union was extended to the following cases, in which States were parties; to wit, to controversies between two or more States, between a State and citizens of another State, and between a State and foreign States, citizens, and subjects. The case of a contest between a State and one of its own citizens, is not included in this enumeration; and, consequently, if the principle which I have advanced be a sound one, the judicial power of the United States does not extend to it; but the uniform decision of this Court has been, that if a party claim to be a citizen of another State, it must appear upon the record. As that does not appear upon the record in this case, I am authorized to say, that the plaintiffs in error are citizens of Virginia: then it is the simple case of a contest between a State and one of its own citizens, which does not fall within the pale of federal judicial power.
It is said, however, that the judicial power is declared by the Constitution, to extend to all cases in law or equity, arising under this Constitution, the laws of the United States, and treaties made, &c.; and that by reason of the expression 'all cases,' where the question is once mentioned in the Constitution, the federal judicial power attaches upon the case on account of the subject matter, without reference to the parties. Notwithstanding the latitude of this expression, it will be seen upon inquiry, that in the nature of things, there must be some limitation imposed upon this provision, which the gentlemen seem to consider unlimited. In the first place there are questions arising, or which might arise under the Constitution, which the forms of the Constitution do not submit to judicial cognizance. Suppose, for example, a State were to grant a title of nobility, how could that be brought before a judicial tribunal, so as to render any effectual judgment? If it were an office of profit, it might, perhaps, be said, an information in the nature of a quo warranto would lie; but I ask whether that would lie, in the case which I have stated, or whether an effectual judgment could be rendered? It is a title, a name which would still remain, after your judgment had denounced it as unconstitutional. Where a quo warranto lies, in relation to an office, the judgment of ouster is followed by practical and effectual consequences. Again; suppose a State should keep troops or ships of war, in time of peace, or should engage in war, when neither actually invaded, nor in imminent danger. Here would be alarming violations of the constitution, assailing too directly the federal powers; it would be a most serious question arising under the constitution, and yet clearly such a case as this does not belong to the judicial tribunal.
If it be said that the opposite counsel mean all cases in their nature of a judicial character, still I shall be able to show, that broad as this expression is, it does not reach all these. It will be remembered by the Court, that the words are, not all questions, but all cases. Although, therefore, a question may arise, yet before there can be a case, there must be parties over whom the Court can take jurisdiction; and if there be no such parties, the Court cannot act upon the subject, though the question may arise, though it may be clearly of a judicial nature, and though there may be the clearest violation of the constitution. By the 11th article of the amendments to the constitution, it is declared, that 'the judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States, by citizens of another State, or by citizens or subjects of any foreign State.' Now, suppose that a State should, without the consent of Congress, lay a duty on tonnage, which should be paid by a citizen of another State; suppose, too, that a State should cause the lands of a British subject to be escheated, contrary to the ninth article of the treaty of 1794, upon the ground of alienage; or debts due to a British subject from individuals of the United States, or money or shares belonging to him, in the public funds or banks, to be confiscated, contrary to the tenth article of the same treaty, and deposit the proceeds in the public chest: It will be agreed on all hands, that the first is a palpable violation of the federal constitution, and the two others as palpable violations of the solemn stipulations of a treaty; and that, therefore, the first presents a question arising under the constitution, and the others one arising under a treaty; yet, will any man contend that the citizen of another State, in the first case, or the subject of the foreign State, in the others, could bring the offending State before the federal Court, for the purpose of redressing their several wrongs? It will not be pretended; and why not? for the reason which I have given, that one of the parties in the cases supposed being a State, and the amendment referred to having declared, that a State should not be amenable to the suit of a citizen of another State, or the subject of a foreign State; although the questions have arisen, the cases have not; that is, the Court cannot take judicial cognizance of the questions, because it cannot bring one of the parties interested in litigating it before them. Let us now suppose, that a State should collect a tonnage duty from one of its own citizens; could that citizen bring his own State before a federal Court? The words of the 11th amendment apply to the case of a citizen of another State, or the citizen or subject of a foreign State; but the reason is, that it was only to them that the privilege of being parties in a controversy with a State, had been extended in the text of the constitution. It was only from them, therefore, that it was necessary to take away that privilege; but, when from those to whom a privilege had been given, that privilege had been taken away, they surely then occupy the same ground, with those to whom it had never been given. When I speak here of the right of these persons under the constitution of suing a State, I speak of the interpretation of this Court, particularly in the case of Chisholm's ex'rs. v. Georgia, in which the Court decided, that a State might be made a party defendant. It was that decision which produced the 11th amendment. If I am right in the idea, that since that amendment, no matter what the character of the question, this Court could not take jurisdiction in favour of the citizen of another State, or subject of a foreign State, against a State as defendant, it is equally true, that without the aid of that amendment, it never could take jurisdiction in favour of a citizen against his own State; because that is not one of the cases, in which the federal judicial power extends to States, and because in this case, as in the others, although a question has arisen under the constitution, &c. a case has not arisen, inasmuch as you cannot bring one of the parties before you. That the constitution never contemplated giving jurisdiction to the federal Courts in cases between a State and its own citizens, will appear manifestly, from the only reason assigned for giving it in favour of the citizens of other States, or foreign citizens. That reason was an insufficient one, even for the purpose for which it was assigned; it being, that as against foreigners and the citizens of other States, State Courts might not be impartial where their States were parties: but such as it is, it never could apply as between a State and its own citizens, whom they were under every moral and political obligation to protect, and towards whom, therefore, there could be no apprehension of a want of impartiality.
Upon a full view of this aspect of the subject, the fair construction of the constitution will be found to be this–that in carving out the general mass of jurisdiction, it had reference only to the natural and habitual parties to controversies, who are either natural persons, or Corporations, short of political societies, not to States; that in relation to these, they could not have been made parties at all, but by express provision, and that, therefore, the extent to which they can be so made, is limited by the extent of that provision. It will be conceded, that the United States cannot be sued: and why? Because it is incompatible with their sovereignty. The States, before the adoption of the federal constitution, were also sovereign; and the same principle applies, unless it can be shown that they have surrendered this attribute of sovereignty; which I have endeavored to show they have not.
Upon my construction, there is consistency throughout the constitution. According to it, a State can never be subjected, at the suit of any individual, to any judicial tribunal, without its own consent; for it can never be made a party defendant in any case, or by any party, except in the cases between it, and another State, or a foreign State. If it be a party plaintiff, I have already endeavored to prove that this Court could never take appellate, but only original jurisdiction, and that therefore as between a State and any individual, that State never could be placed in the attitude of a defendant. This idea is further sustained by reference to the history of the country. From that we learn, that the great and radical defect in the first confederacy was, that its powers operated upon political societies or States, not upon individuals. The characteristic difference between that and the present government is, that the latter operates upon the citizens. Take, for example, the power of taxation, which addresses itself directly to the people of the United States in the shape of an individual demand–instead of a requisition upon the States, for their respective quotas.
It has been said, that if this doctrine prevail, the federal government will be prostrated at the feet of the States, and that the various limitations and prohibitions imposed upon the States by the constitution, will be a dead letter, upon the face of that instrument, for the want of some power to enforce them. Let it be remembered that the several State legislatures and judiciaries, are all bound by the solemn obligation of an oath, to support the federal constitution; that to suppose a State legislature capable of wilfully legislating in violation of that constitution, if it is to suppose that it is so lost to the moral sense as to be guilty of perjury; a supposition which, thank God! the character of your people forbids us to make, nor can it be realized, until we shall have reached a maturity of corruption, from which I trust we are separated by a long tract of future time. But if the legislatures could be supposed to be so blind to the sacred dictates of conscience and of duty, as to pass such a law, we have another safeguard in the character of the State judiciaries. Before effect could be given to it, it must be supposed that the sanctity of the judicial ermine was also polluted. To him, who can for a moment entertain this unjust and injurious apprehension, I have nothing to say, but to ask him to look at the talents, the virtues, and integrity, which adorn and illustrate the benches of our State Courts; and I will add, that according to the doctrine maintained by this Court, in the case of Hunter v. Martin,*fn3
the judgments of the State Courts, in questions arising under the constitution, between individuals, would be subject to the appellate jurisdiction of this Court.*fn4
But if the States are under limitations by the constitution, so also is the federal government. If the State legislatures may be supposed possibly capable of violating that instrument, and the State judiciaries disposed to sustain them in that violation, it may as well be supposed, that the federal legislature may be thus disposed, and the federal judiciary prepared to sustain them.
Whenever the States shall be determined to destroy the federal government, they will not find it necessary to act, and to act in violation of the constitution. They can quietly and effectually accomplish the purpose by not acting. Upon the State legislatures it depends to appoint the Senators and Presidential electors, or to provide for their election. Let them merely not act in these particulars; the executive department, and part of the legislative, ceases to exist, and the federal government thus perishes by a sin of omission, not of commission. But I will endeavor in another way to show, that whenever the States shall have reached that point, either of corruption, or hostility, to the federal government, which they must arrive at before any of the extreme supposed violations of the constitution could occur, the jurisdiction now claimed for this Court would be utterly inadequate as a remedy. Let us suppose one of the most glaring violations of the constitution; a bill of attainder of ex post facto law, for example, passed by a State; and that the State judiciary proceeds to conviction of the party prosecuted. Let us suppose, that this Court, claiming an appellate jurisdiction, forbids the execution of the party; but the State Court orders its judgment to be executed, and it is executed, by putting to death the prisoner. His life cannot be recalled: that is beyond the reach of human power; can you prosecute the judges or the officer for murder? It will not be contended Of what avail, then, the jurisdiction contended for, even for the purpose for which it is claimed? I answer, of none at all.
Mr. Smyth stated, that he should support the motion to dismiss the writ of error granted in this case, for two causes: (1.) Because the constitution gives no jurisdiction to the Court in the case. (2.) Because the judiciary act gives no jurisdiction to the Court in this case.
1. It is a question undecided, whether the appellate jurisdiction of this Court, as declared by the constitution, does or does not extend to this case. If it was in all respects similar to the case of Hunter v. Martin,*fn5
adjudged in this Court, I should contend, that the constitutional question of jurisdiction should not be regarded as settled. In that case, the counsel conceded the constitutional question, and no argument has been offered to this Court in support of the jurisdiction of the State judiciary. One of the learned Judges*fn6
of this Court said, in that case, when speaking of the claim of power in this Court to exercise appellate jurisdiction over the State tribunals, 'this is a momentous question, and one on which I shall reserve myself uncommitted, for each particular case as it shall occur.' And the Court said, that 'in several cases, which have been formerly adjudged in this Court, the same point was argued by counsel, and expressly overruled.' But the case now before the Court, is very different from that of Martin v. Hunter. This is a writ of error to revise a judgment given in a criminal prosecution, and in a case wherein a State was a party.
The government of the United States being one of enumerated powers, it is not a sufficient justification of the authority claimed, to say that there is nothing in the constitution that prohibits the federal judiciary to take cognizance, by way of appeal, of cases decided in the State Courts. All the powers not granted are retained by the States; judicial power is granted; but it is federal judicial power that is granted, and not State judicial power. This grant neither impairs the authority of the State Courts in suits remaining within their jurisdiction, nor makes them inferior Courts of the United States. The government of the United States operates directly upon the people, and not at all upon the State governments, or the several branches thereof. The State governments are not subject to this government. The people are subject to both governments. This government is in no respect federal in its operation, although it is, in some respects, federal in its organization. Power has, indeed, been vested, by the constitution, in the State legislatures, to pass certain laws necessary to organize and continue the existence of the general government, and this power Congress may in part assume. They may prescribe the time, place, and manner, of holding elections of representatives; the time and manner of choosing Senators by the State legislatures; and the time of choosing electors of a President. This power is expressly given by the constitution; it was necessary Congress should possess it, for self-preservation; and, even in these cases, they have no power to prescribe to the State legislature a legislative act. This government cannot prescribe an executive act to the executive of a State, a legislative act to the legislature of a State, or (as I contend) a judicial act to the judiciary of a State.
If the constitution does not confer on the judiciary of the United States the appellate jurisdiction claimed, it is not enough that the act of Congress may purport to confer it. The framers of the judiciary act manifested a distrust of their authority; they seem to have foreseen that the State Courts would refuse to give judgment according to the opinions of the Supreme Court. The case decided in the State Court was not a case in law arising under the laws of the United States. It was a prosecution under a law of the State. Should a mandate issue in this case, and obedience be refused, this Court will give judgment on a prosecution for violating State laws. If the case decided in the State Court be regarded as a case in which a State was a party, the Supreme Court has, by the constitution, original, and not appellate jurisdiction. The appellate jurisdiction of the Supreme Court is only conferred in cases other than those whereof the Supreme Court has original jurisdiction. Who has original jurisdiction of those other cases? The inferior federal Courts. Some of those other cases are those of admiralty and maritime jurisdiction, of which, certainly, it was not intended that the original jurisdiction should be in the State Courts.
If this writ of error be considered to be a suit in law, this Court has no jurisdiction: for it is prosecuted against a State; and, by the 11th amendment to the constitution, no suit in law can be prosecuted by foreigners or citizens of another State against one of the United States. The amendment prohibits such suits commenced or prosecuted against a State. This seems expressly to extend to this writ of error, which, although not a suit in law commenced against a State, is a suit in law prosecuted against a State. This amendment, denying to foreigners and citizens of other States the right to prosecute a suit against a State, and being silent as to citizens of the same State, affords a proof that the federal Courts never had jurisdiction of a suit between a citizen and the State whereof he is a citizen: for it cannot be presumed, that a right to prosecute a suit against a State would be taken from a foreigner or citizen of another State, and left to citizens of the same State. A release of all suits is a release of a writ of error;*fn7
and, consequently, a writ of error is 'a suit in law,' and cannot be prosecuted against a State.
The appellate jurisdiction conferred by the constitution on the Supreme Court, is merely authority to revise the decisions of inferior Courts of the United States. Where the Supreme Court have not original jurisdiction, they have, by the constitution, appellate jurisdiction as to law and fact. Could it have been intended to confer a power to re-examine decisions in the State Courts; to try again the facts tried in those Courts, and this even in criminal prosecutions? Surely not. Appellate jurisdiction signifies judicial power over the decisions of the inferior tribunals of the same sovereignty. Congress have power to 'constitute' such tribunals; and it is made their duty to 'ordain and establish' such. The framers of the constitution intended to create a new judiciary, to exercise the judicial power of a new government, unconnected with the judiciaries of the several States. Congress is not authorized to make the Supreme Court, or any other Court of a State, an inferior Court. They do not 'constitute' such a Court; they do not 'ordain and establish it.' The judges cannot be impeached before the Senate of the United States; they receive no compensation for their services from the United States; and, consequently, cannot be required to render any services to the United States. The inferior Courts, spoken of in the constitution, are manifestly to be held by federal judges. The judicial power to be exercised, is the judicial power of the United States; the errors to be corrected are those of that judicial power; and there can be no inferior Courts exercising the judicial power of the United States, other than those constituted, ordained, and established by Congress.
The Supreme Court has appellate jurisdiction in cases to which the judicial power of the United States shall extend; but unless the original jurisdiction has extended to the case, the appellate jurisdiction can never reach it. The original jurisdiction alone is qualified to lay hold of it. If it shall be deemed proper to extend the judicial power to all the cases enumerated, the original jurisdiction must be thus extended. The Court exercising appellate jurisdiction, must not only have jurisdiction over such a cause, and such parties, but it must have jurisdiction over the tribunal before which the cause has been depending. Judicial power, includes power to decide, and power to enforce the decision. This Court has rather disclaimed power to enforce its mandate to the Supreme Court of a State. If you have not power to compel State tribunals to obey your decisions, you have no appellate jurisdiction in cases depending before them. Suppose it should be found necessary to direct a new trial in a cause removed from a State Court, and that the State Court refuses to obey your mandate; where shall the new trial be had? If you have appellate jurisdiction in a case decided by a State Court, you must have power to make your decisions a part of the record of the State Court. The Constitution provides that full faith and credit shall be given in each State, to the judicial proceedings of every other State. A plaintiff recovers in the Courts of Virginia judgment for a sum of money; you reverse the judgment; but, the State Court does not record your decision; the plaintiff obtains a copy of the record of the judicial proceedings of the State, and presents them as evidence before the Court of another State; he must recover, notwithstanding your judgment, which has not been made a part of that record, to which full faith and credit is to be given.
To give jurisdiction over the State Courts, it is not sufficient that the constitution has said that the Supreme Court shall have appellate jurisdiction; for that will be understood to signify, jurisdiction over inferior federal Courts. To confer the jurisdiction claimed, the constitution should have said, that the judicial power of the United States shall have appellate jurisdiction over the judicial power of the several States. If it had been intended to give appellate jurisdiction over the State Courts, the proper expressions would have been used. There is not a word in the constitution that goes to set up the federal judiciary above the state judiciary. The state judiciary is not once named. The subjects spoken of are the judicial power of the United States; the supreme and inferior Courts of the United States; and the original and appellate jurisdiction of the Supreme Court. Appellate jurisdiction is not granted to the judicial power of the United States. It is granted to the Supreme Court of the United States. Federal judicial power is authorized to correct the errors of federal judicial power. I contend, that in no case can the federal Courts revise the decisions of the State Courts; no such power is expressly given by the constitution: and can it be believed that it was meant that the greatest, the most consolidating of all the powers of this Government, should pass by an unnecessary implication? The States have granted to the United States power to pronounce their own judgment in certain cases; but they have not granted the State Courts to the federal Government; nor power to revise State decisions.
The power of the House of Lords to hear appeals from the highest Court in Scotland, has been mentioned as a precedent for the exercise of such a power as is claimed for this Court; but the cases are by no means similar: Scotland is consolidated with England under the same executive and legislature; and, therefore, ought to be subject, in the last resort, to the same judicial tribunal. If the States had no executive except the President, and no legislature except Congress, the cases would have some resemblance.
If you correct the errors of the Courts of Virginia, you either make them Courts of the United States, or you make the Supreme Court of the United States a part of the judiciary of Virginia. The United States can only pronounce the judgment of the United States. Virginia alone can pronounce the judgment of Virginia. Consequently, none but a Virginia Court can correct the errors of a Virginia Court.
There is nothing in the constitution that indicates a design to make the State judiciaries subordinate to the judiciary of the United States. The argument that Congress must establish a Supreme Court, and might have omitted to establish inferior Courts, thereby depriving the Supreme Court of its appellate jurisdiction, unless it should be exercised over the State Courts, seems to be without foundation. The judicial power of the United States is vested in the Supreme Court, and inferior Courts; the judges of the inferior Courts shall receive a compensation. The possibility of Congress omitting to perform a duty positively enjoined on them, cannot change the constitution, or affect the jurisdiction of the State Courts.
The federal judiciary and State judiciaries possess concurrent power in certain cases; but no authority is conferred on the one to reverse the decisions of the other. The State Courts retain a concurrent authority in cases wherein they had jurisdiction previous to the adoption of the constitution, unless it is taken away by the operation of that instrument. I say a concurrent authority, not a subordinate authority. The power of the judiciary of the United States is either exclusive or concurrent, but not paramount power. And where it is concurrent only, then, whichsoever judiciary gets possession of the case, should proceed to final judgment, from which there should be no appeal. If it shall be established that this Court has appellate jurisdiction over the State Courts in all cases enumerated in the third article of the constitution, a complete consolidation of the States, so far as respects judicial power, is produced; and it is presumed that it was not the intention of the people to consolidate the judicial systems of the States, with that of the United States. It has been said, that the Courts of the United States can revise the proceedings of the executive and legislative authorities of the States, and, if they are found to be contrary to the constitution, may declare them to be of no legal validity; and that the exercise of the same right over judicial tribunals, is not a higher or more dangerous act of sovereign power.*fn8
This conclusion seems to be erroneous. When the federal Courts declare an act of a State legislature unconstitutional, or an act of the State executive unlawful, they exercise no higher authority than the State Courts exercise, who will not only declare an act of the State legislature, but even an act of Congress, unconstitutional and void. This only proves that the federal and State judiciaries have equally authority to judge of the validity of the acts of the other branches of both governments, and has no tendency whatever to establish the claim set up by federal judicial power, of supremacy over State judicial power.
This writ of error brings up the judgment rendered in a State Court, in a criminal prosecution. Every government must possess within itself, and independently, the power to punish offences against its laws. It would degrade the State governments, and devest them of every pretension to sovereignty, to determine that they cannot punish offences without their decisions being liable to a re-examination, both as to law and fact, (if Congress please,) before the Supreme Court of the United States. The claim set up would make the States dependent for the execution of their criminal codes, upon the federal judiciary. The cases 'in which a State shall be a party,' of which the Supreme Court may take cognizance, are civil controversies. This seems obvious; because, to the Supreme Court is granted original jurisdiction of them. And it will not be contended that the Supreme Court shall have original jurisdiction of prosecutions carried on by a State, against those who violate its laws. If 'cases in law and equity, arising under the laws of the United States,' comprehend criminal prosecutions in the State Courts, then every prosecution against a citizen of the State, in which he may claim some exemption under an act of Congress or a treaty, however unfounded the claim, may be re-examined, both as to law and fact, (if Congress please,) in the Supreme Court. And if 'controversies' include such prosecutions, then every prosecution against an alien, or the citizen of another State, may be so re-examined, whether he claim such exemption or not. Can this Court bring up a capital case, wherein some exemption under a federal law is claimed by a prisoner in a State Court? Would an appeal lie, (should Congress so direct,) from a jury? It would not, even if the trial was had in a federal Court; for the accused has a right to a trial by a jury in the State and district wherein the crime shall be charged to have been committed. In all cases within the appellate jurisdiction of the Supreme Court, that jurisdiction may extend to the law and the fact. But such jurisdiction, as to the fact, cannot extend to criminal cases; consequently, it was not intended that the appellate jurisdiction should extend to criminal cases; and, therefore, the Supreme Court have no appellate jurisdiction in criminal cases. Can, then, the Court take jurisdiction in this case, which was a criminal prosecution, founded on the presentment of a grand jury? Surely they cannot. This case was not a qui tam action, which is regarded as a civil suit.*fn9
It was, both in form and substance, a criminal prosecution. And it has been declared by a judge of this Court, that 'the Courts of the United States are vested with no power to scrutinize into the proceedings of the State Courts, in criminal cases.'*fn10
That which is fixed by the constitution, Congress have no power to change. The jurisdiction of the State Courts is fixed by the constitution. It is not a subject for congressional legislation. The people of Virginia, in adopting the constitution of the United States, had power to diminish the jurisdiction of the State judiciary: but Congress have no power over it; they can neither diminish nor extend it; they can neither take from the State tribunals one cause, or give them one to decide. As they cannot impose on the State Courts any duties, so neither can they take from them any powers. Congress can neither add to or diminish the legislative power, the executive power, or the judicial power of a State, as fixed by the constitution. Congress may pass all laws necessary and proper to execute that power which is vested by the constitution in the judiciary of the United States; but this does not sanction a violation of the authority of the State Courts. None can enlarge or abridge the jurisdiction of the judiciary of Virginia, except the people of Virginia, or the legislature of that State. As was the jurisdiction of the State judiciary on the 4th day of March, 1789, so it stands at this day, unless altered by the State. If on that day the States retained jurisdiction of most of the cases enumerated in the third article of the constitution, that jurisdiction must have been left to them by the constitution, and cannot be taken from them by Congress. The power either of a State legislature or a State judiciary, cannot depend on the use of, or neglect to use, a power, by Congress. Such State power is fixed by the constitution; the same to day as to-morrow, however Congress may legislate.
The judicial power of the United States is conferred by the constitution, and Congress cannot add to that power. Congress may distribute the federal judicial power among the federal Courts, so far as the distribution has not been made by the constitution. If the constitution does not confer on this Court, or on the federal judiciary, the power sought to be exercised, it is in vain that the act of Congress purports to confer it. And where the constitution confers original jurisdiction, (as in cases where a State is a party,) Congress cannot change it into appellate jurisdiction. The extent of the judicial power of the United States being fixed by the constitution, it cannot be made exclusive or concurrent, at the will of Congress. They cannot decide whether it is exclusive of the State Courts or not; for that is a judicial question, arising under the constitution. If the judicial power of the United States is exclusive, Congress cannot communicate a part of it to the State Courts, giving to the federal Courts appellate jurisdiction over them. If by the constitution the State judiciary has concurrent jurisdiction, Congress cannot grant to the federal Courts an appellate jurisdiction over the exercise of such concurrent power. The state judiciary cannot have independent or subordinate power, at the will and pleasure of Congress.
The State judiciary have concurrent jurisdiction, by the constitution, over all the cases enumerated in the third article of the constitution, except, 1. Prosecutions for violating federal laws; 2. Cases of admiralty and maritime jurisdiction; and, 3. Cases affecting ambassadors, other public ministers, and consuls. No government can execute the criminal laws of another government. The States have parted with exterior sovereignty. As they cannot make treaties, perhaps they have not jurisdiction in the case of ministers sent to the federal government; as they cannot make war and peace, regulate commerce, define and punish piracies and offences on the high seas, and against the law of nations, or make rules concerning captures on the water, perhaps they have no admiralty jurisdiction. The jurisdiction of the State Courts over civil causes, arising under the constitution, laws, and treaties, seems to me to be unquestionable. The State judges are sworn to support the constitution, which declares them bound by the constitution, laws, and treaties. This was useless, unless they have jurisdiction of causes arising under the constitution, laws, and treaties, which are equally supreme law to the State Courts as to the federal Courts. The State judges are bound by oath to obey the constitutional acts of Congress; but they are not so bound to obey the decisions of the federal Courts: the constitution and laws of the United States are supreme; but the several branches of the government of the United States have no supremacy over the corresponding branches of the State governments.
The jurisdiction of the State Courts is admitted by Congress, in the judiciary act: for, by an odious provision therein, which does not seem to be impartial, the decision of the State Court, if given in favour of him who claims under federal law, is final and conclusive. Thus, the State Courts have acknowledged jurisdiction; and if that jurisdiction is constitutional, Congress cannot control it.
Congress cannot authorize the Supreme Court to exercise appellate jurisdiction over the decisions of the State Courts, unless they have legislative power over those Courts. Can Congress give an appeal from a federal District Court to a State Court of appeal? I presume it will be admitted that they cannot. And why can they not? Because they have no power over the State Court. And if they cannot give an appeal to that Court, they cannot give an appeal from that Court.
The constitution provides, that the judicial power of the United States shall 'extend to' certain enumerated cases. These words signify plainly, that the federal Courts shall have jurisdiction in those cases; but this does not imply exclusive jurisdiction, except in those cases where the jurisdiction of the State Courts would be contrary to the necessary effect of the provisions of the constitution. Civil suits, arising under the laws of the United States, may be brought and finally determined in the Courts of foreign nations; and, consequently, may be brought and finally determined in the State Courts.
The judiciary of every government must judge of its own jurisdiction. The federal judiciary and the State judiciary may each determine that it has, or that it has not, jurisdiction of the case brought before it: but neither can withdraw a case from the jurisdiction of the other. The question, whether a State Court has jurisdiction or not, is a judicial question, to be settled by the State judiciary, and not by an act of Congress, nor by the judgment of the Supreme Court of the United States. Shall the States be denied the power of judging of their own laws? As their legislation is subject to no negative, so their judgment is subject to no appeal. Sovereignty consists essentially in the power to legislate, judge of, and execute laws. The States are as properly sovereign now as they were under the confederacy; and we have their united declaration that they then, individually, retained their sovereignty, freedom, and independence. The constitution recognizes the sovereignty of the States: for it admits, that treason may be committed against them. They would not be entitled to the appellation of 'States' if they were not sovereign.
Although the State Courts should maintain a concurrent jurisdiction with the federal Courts, yet foreigners would have what, before the adoption of the constitution they had not, a choice of tribunals, before which to bring their actions; and the State judges are now bound by treaties as supreme law. If an alien plaintiff sues in the State Courts, he ought to be bound by their decision; and if an alien is sued in a State Court, he ought to be bound by the decision of the State in which he resides or sojourns, which protects him, to which he owes a temporary allegiance, and to whose laws he should yield obedience. The people could not have intended to give to strangers a double chance to recover, while citizens should be held bound by the first decision; that the citizen should be bound by the judgment of the State alone, while the stranger should not be bound but by the judgment of the State, and also of the United States. A statute contrary to reason, is void. An act of Congress which should violate the principles of natural justice, should also be deemed void. It is worthy of consideration, whether this clause in the judiciary act, which grants an appeal to one party, and denies it to the other, is not void, as being partial and unjust. If, in any case brought before them, the State Courts shall not have jurisdiction, the defendant may plead to the jurisdiction, and the Supreme Court of the State will finally decide the point. If this is not a sufficient security for justice, as I apprehend it is, an amendment to the constitution may provide another remedy. If the defendant submits to the jurisdiction of the State Court, and takes a chance of a fair trial, it is reasonable that he should be bound by the result.
As I deny to this Court authority to remove, by writ of error, a cause from a State Court, so I likewise deny the authority of this Court to remove, before judgment, from a State Court, a suit brought therein. It will be equally an invasion of the jurisdiction of the State Court, although less offensive in form, than a removal after judgment has been rendered. Congress can neither regulate the State Courts, or touch them by regulation.
Let the Supreme Court declare (for it is a judicial question) what cases are within the exclusive jurisdiction of the federal Courts, by the constitution; and let Congress pass the necessary and proper laws for carrying that power into effect. Although I do not admit that the State Courts would be absolutely bound by such a declaration, yet I have no doubt that the State Courts would acquiesce. It is not for jurisdiction over certain cases that the State Courts contend. It is for independence in the exercise of the jurisdiction that is left to them by the constitution.
2. Does the 25th section of the judiciary act comprehend this case, so that the Court may ...