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1821.

Cohens

V.

Virginia.

Washington may come in collision with the laws of the United States in the ten miles square; but can never come in collision with the laws of a State, for they cannot have operation in a State.

The Court will maintain the powers of Congress as granted by the people, and for the purposes for which they were granted by the people; and will, if possible, to preserve harmony, prevent the clashing of federal and State powers. Let each operate within their respective spheres; and let each be confined to their assigned limits. We are all bound to support the constitution. How will that be best effected? Not by claiming and exercising unacknowledged power. The strength thus obtained will prove pernicious. The confidence of the people constitutes the real strength of this government. Nothing can so much endanger it as exciting the hostility of the State governments. With them it is to determine how long this government shall endure. I shall conclude by again reminding the Court of a declaration of their own, that, "no power ought to be sought, much less adjudged, in favour of the United States, unless it be clearly within the reach of their constitutional charter."

Mr. D. B. Ogden, contra, (1.) stated, that he should not argue the general question whether this Court had an appellate jurisdiction, in any case, from the State Courts, because it had been already solemnly adjudged by this Court, in the case of Martin v. Hunter."

a 1 Wheat. Rep. 304,

2. This is a case arising under the constitution and laws of the Union, and therefore the jurisdiction of the federal Courts extends to it by the express letter of the constitution; and the case of Martin v. Hunter has determined that this jurisdiction may be exercised by this Court in an appellate form. But it is said, that the present case does not arise under the constitution and laws of the United States, because the legislative powers of Congress, as respects the District of Columbia, are limited and confined to that District. But, if the law be thus limited in its operation, how is this to be discovered but by examining the constitution? and how is this examination to be had but by taking jurisdiction of the case? In the whole argument, constant reference was had, and necessarily had, to the constitution, in order to decide the case between the parties, upon this question of jurisdiction; and yet it is said to be a case not arising under the constitution. It is also contended, that it is not an act of Congress, the validity of which is drawn in question in the present case; but an ordinance of the Corporation of the City of Washington; and the maxim of delegatus non potest delegare, is referred to, in order to show that the Corporation cannot exercise the legislative power of Congress. Is it meant by this to assert that Congress cannot authorize the Corporation to make bylaws? Even the soundness of this position cannot be determined without examining the constitution and acts of Congress, and adjudging upon their interpretation. The whole District of Columbia, and all its subordinate municipal Corporations, are the creatures

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1821.

Cohens

V.

Virginia.

of the constitution; and the acts of Congress, relative to it, must be determined by the constitution, and must be laws of the United States. Are not the extent of the powers vested in Congress, and the manner in which these powers are to be executed, necessarily, questions arising under the constitution, by which the powers are given? How can the question, whether this is a lottery authorized by an ordinance of the Corporation, and not by a law of the United States, be decided, but by a reference to the laws of the Union, and the constitution under which they were enacted? The plaintiffs in error set up a right to sell lottery tickets in the State of Virginia, under the constitution and laws of the United States, and the State denies it. By whom is this question to be decided? It is a privilege or exemption, within the very words of the judiciary act, set up or claimed, by the party, under the constitution and laws of the Union. It is immaterial for the present purpose whether the claim be well or ill founded. The question is, whether the party setting up the claim, is to be turned out of Court, without being heard upon the merits of his case. If you have not jurisdiction, you cannot hear him upon the merits. Upon this motion to quash the writ of error, you can only inquire into the jurisdiction, and cannot look into the merits: but you are asked to turn the party out of Court for defect of jurisdiction, and without giving him an opportunity to show that by the laws and constitution of the Union, he is entitled to the privilege and exemption which he claims. It is no answer to say that

1821.

Cohens

V.

any individual may allege that he has such a privilege, in order to remove his case from the State Court to this; because no injury would ensue, as the case would be sent back with damages: and even if Virginia. there might be some inconveniences, from improperly bringing causes here, they ought rather to be submitted to, than to hazard the possible violation of the constitutional rights of a citizen.

3. It is no objection to the exercise of the judicial powers of this Court, that the defendant in error is one of the States of the Union. Its authority extends, in terms, to ALL cases arising under the constitution, laws, and treaties of the United States; and if there be any implied exceptions, it is incumbent on the party setting up the exception to show it. In order to except the States, it is said that they are sovereign and independent societies, and therefore not subject to the jurisdiction of any human tribunal. But we deny, that since the establishment of the national constitution, there is any such thing as a sovereign State, independent of the Union. The people of the United States are the sole sovereign authority of this country. By them, and for them, the constitution was established. The people of the United States in general, and that of Virginia in particular, have taken away from the State governments certain authorities which they had before, so that they are no longer sovereign and independent in that sense which exempts them from all coercion by judicial tribunals. Every State is limited in its powers by the provisions of the constitution; and whether a State passes those limits, is a question

1821.

Cobens

Virginia

which the people of the Union have not thought fit to trust to the State legislatures or judiciaries, but have conferred it exclusively on this Court. The Court would have the jurisdiction without the word State being mentioned in the constitution. The term "all cases," means all, without exception; and the States of the Union cannot be excepted, by implication, because they have ceased to be absolutely sovereign and independent. The constitution declares that every citizen of one State, shall have all the privi leges of the citizens of every other State. Suppose Virginia were to declare the citizens of Maryland aliens, and proceed to escheat their lands by inquest of office the party is without a remedy; unless he can look for protection to this Court, which is the guardian of constitutional rights. Because the State, which is the wrong doer, is a party to the suit, is that a reason why he should not have redress? By the original text of the constitution, there is no limitation in respect to the character of the parties, where the case arises under the constitution, laws, and treaties of the Union: and the amendment to the constitution respecting the suability of States, merely applies to the other class of cases, where it is the character of the parties, and not the nature of the controversy, which alone gives jurisdiction. The original clause giving jurisdiction on account of the character of the parties, as aliens, citizens of different States, &c. does not limit, but extends the judicial power of the Union. The amendment applies to that alone. It leaves a suit between a State and a citizen, arising under the constitution, laws, &c.

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