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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

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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," 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

a 1 Cranch, 174.

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.

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3. My last proposition is, that considering the nature of this case, and that a State is a party, the judicial of the United States does not extend to power 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.

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I will now endeavour to show, from general principles, in connection with the fair construction of the third article of the constitution, that without reference to the particular character of the case, whether as criminal or civil, the judicial power of the United States does not extend to it, on account of the character of one of the parties; in other words,

because one of the parties is a State. It is an axiom
in politics, that a sovereign and independent State is
not liable to the suit of any individual, nor amenable
to any judicial power, without its own consent. All
the States of this Union were sovereign and inde-
pendent, 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 an-
other State, and between a State and foreign States,
citizens, and subjects. The case of a contest be-
tween a State and one of its own citizens, is not in-
cluded 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 ex-
tend to it; but the uniform decision of this Court
has been, that if a party claim to be a citizen of an-
other 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,

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