where it found it; and the States are still liable to be sued by a citizen, where the jurisdiction arises in this manner, and not merely out of the character of the parties. The jurisdiction in the present case arises out of the subject matter of the controversy, and not out of the character of the parties; and, consequently, is not affected by the amendment. But it is said, that admitting the Court has jurisdiction where a State is a party, still that jurisdiction must be original, and not appellate; because the constitution declares, that in cases in which a State shall be party, the Supreme Court shall have original jurisdiction, and in all other cases, appellate jurisdiction. The answer is, that this provision was merely intended to prevent States from being sued in the inferior Courts of the Union; that the Supreme Court is to have appellate jurisdiction in all cases arising under the constitution, laws, and treaties of the United States; that where, in such a case, a State sues in its own Courts, it must be understood as renouncing its privilege or exemption, and to submit itself to the appellate power of this Court; since, if the jurisdiction in this class of cases be concurrent, it cannot be exercised originally in the Supreme Court, wherever the State chooses to commence the suit in its own Courts. Nor is there any hardship in this construction. The State cannot be sued in its own Courts; but if it commences a suit there against a citizen, and a question arises in that suit under the constitution, laws, and treaties of the Union, there must be power in this Court to revise the decision of the State Court, in order to 1821. Cohens Virginia. 1821. Cohens V. Virginia. produce uniformity in the construction of the constitution, &c. So, if a consul sues in the Circuit Court, this Court has appellate jurisdiction, although the consul could not be sued in the Circuit Court. And if the United States, who cannot be sued any where, think proper to sue in the District or Circuit Court, they are amenable to the appellate jurisdiction of this Court. Even granting, therefore, that a State cannot be sued in any case; the State is not sued here she has sued a citizen, in her own tribunals, who implores the protection of this high Court to give him the benefit of the constitution and laws of the Union. The jurisdiction does not act on the State; it merely prevents the State from acting on a citizen, and depriving him of his constitutional and legal rights. It is true, there are some cases where this Court cannot take jurisdiction, though the constitution and laws of the Union are violated by a State. But wherever a case is fit for judicial cognizance, or wherever the State tribunals take cognizance of it, whether properly or not, the appellate power of this Court may intervene, and protect the constitution and laws of the Union from violation. Doubtless, a State might grant titles of nobility, raise and support armies and navies, and commit many other attacks upon the constitution, which this Court could not repel. But if these attacks were made by judicial means, or if judicial means were used to compel obedience to these illegal measures, the authority of this Court could, and would, intervene. Nor can this argument apply to a case, which is entirely judicial in its very origin, and, therefore, steers clear of the supposed difficulty of vindicating the constitution and laws of the Union from violation in other cases which may be imagined. Neither is this a criminal case. The offence in question is not made a misdemeanour by the law of Virginia. That law merely imposes a penalty, which may be recovered by action of debt, or information, or indictment. The present prosecution is a mere mode of recovering the penalty. But suppose it is a criminal case. The constitution declares, that the Court shall have jurisdiction in ALL cases arising under it, or the laws and treaties of the Union; which includes criminal as well as civil cases; unless, indeed, Congress has refused jurisdiction over the former in the judiciary act, which we insist it has not. Mr. Pinkney, on the same side, (1.) argued, that there was no authority produced, or which could be produced, for the position on the other side, that this Court could not, constitutionally, exercise an appellate jurisdiction over the judgments or decrees of the State Courts, in cases arising under the constitution, laws, and treaties of the Union. The judiciary act of 1789, c. 20. contains a cotemporaneous construction of the constitution in this respect, of great weight, considering who were the authors of that law; and which has been since confirmed by the repeated decisions of this Court, constantly exercising 1821. Cohens V. Virginia. 1821. Cohens V. Virginia. the jurisdiction in question. This legislative and judicial exposition has been acquiesced in, since no attempt has ever been made to repeal the law upon the ground of its repugnancy to the constitution: Transit in rem judicatam. But even before the constitution was adopted, and whilst it was submitted to public discussion, this interpretation was given to it by its friends, who were anxious to avoid every objection which could render it obnoxious to State jealousy. But they well knew that this interpretation was unavoidable, and the authors of the celebrated Letters of Publius, or the Federalist, have stated it in explicit terms." a Clarke v. Harwood, 3 Dall. 342. Gordon v. Caldcleugh, 3 Cranch, 268. Smith v. Maryland, 6 Cranch, 286. Matthews v. Zane, 4 Cranch, 382. Owings v. Norwood's Lessee, 5 Cranch, 344. Martin v. Hunter, 1 Wheat. Rep. 304. Otis v. Walter, 2 Wheat. Rep. 18. Miller v. Nicholls, 4 Wheat. Rep. 311. Gelston v. Hoyt, 3 Wheat. Rep. 246. McIntire v. Wood, 7 Cranch, 505. Slocum v. Mayberry, 2 Wheat. Rep. 1. M'Culloch v. Maryland, 4 Wheat. Rep. 316. b"Here another question occurs-what relation would subsist between the national and the State Courts in these instances of concurrent jurisdiction? I answer, that an appeal would certainly lie from the latter to the Supreme Court of the United States. The constitution in direct terms gives an appellate jurisdiction to the Supreme Court in all the enumerated cases of federal cognizance, in which it is not to have an original one; without a single expression to confine its operation to the inferior federal Courts. The objects of appeal, not the tribunals from which it is to be made, are alone contemplated. From this circumstance, and from the reason of the thing, it ought to be construed to extend to the State tribunals. Either this must be the case, or the local Courts must be excluded But it is said, that the jurisdiction of the State Courts is concurrent with those of the Union, over that class of cases arising under the constitution, laws, and treaties of the United States. This, however, is not of absolute necessity, but at the discretion of Congress, who may restrain and modify this concurrent jurisdiction, or render it exclusive in the federal tribunals at their pleasure. The supremacy of the national constitution and laws, is a fundamental principle of the federal government, and would be entirely surrendered to State usurpation, if Con from a concurrent jurisdiction in matters of national concern, 1821. Cohens V. Virginia. |