the exercise of a jurisdiction which has already rightfully attached, have a right to pronounce on the sufficiency and validity of the defence? It would be extremely difficult, upon any legal principles, to give a negative answer to these inquiries. Innumerable instances of the same sort might be stated in illustration of the position; and unless the State Courts could sustain jurisdiction in such cases, this clause of the sixth article would be without meaning or effect, and public mischiefs of a most enormous magnitude would inevitably ensue. So the Court afterwards say, in the context of the passage before cited, speaking of the inadequacy of the remedy of removal of suits to accomplish the purposes of the constitution," in respect to criminal prosecutions, the difficulty seems admitted to be insurmountable," &c. What difficulty? The difficulty of controlling them by the Courts of the United States without the aid of a writ of error, because those Courts could take no original cognizance of this description of cases, and they could not be removed before judgment. As, then, the federal Courts have no original jurisdiction of cases arising merely under the constitution, laws, and treaties of the Union, it follows, that the clause of the constitution which speaks of -cases in which a State shall be a party, does not apply to it and the appellate power, now in question, is to be sought for in that part of the same article which declares, that the judicial power of the Union shall extend to all cases arising under the a 1 Wheat. Rep. 341. 47 b 1 Wheat. Rep. 350. 1821. Cohens V. Virginia. 1821. Cohens v. Virginia. constitution, laws, and treaties of the Union, coupled with the subsequent provision, which declares, that in all cases to which that judicial power extends, this Court shall have appellate, where it has not original jurisdiction, with such exceptions, and under such regulations as Congress may prescribe. That it has appellate jurisdiction in all cases arising under the constitution, laws, and treaties of the United States, is established by the authority of the case of Martin v. Hunter: and that this appellate power is competent to control the State Courts, is also proved by that case." There is, therefore, no open question but this, does the fact of a State being a party prosecutor in the State Court, make this case an exception, and take it out of the general rule? Upon the plain policy and purpose of the constitution it does not. This jurisdiction has already been shown to be different in its nature from the original jurisdiction which was exercised over States before the amendment of the constitution. But that other jurisdiction will go far to show, that there is nothing unnatural in giving appellate power over State Courts in cases where a State is a party plaintiff. The constitution authorized direct coercion over States or private citizens indifferently. The amendment has partly taken this away; but the spirit of the constitution is still manifested by the former provision. The same constitution also authorized appellate control over State Courts; and is it natural that it should condemn the same control, merely be a 1 Wheat. Rep. 304. cause a State has obtained the judgment to be revised? The constitution had no delicacy with regard to States on this matter. It considered them as directly amenable where original jurisdiction can be exerted. Why not empower its tribunals to affect their interests in an appellate form, by acting, not on the State, but on its Courts, as unquestionably it does in all cases where individuals are parties below? The appellate power is trifling, compared with the original as it formerly stood: and a constitution which gave the last could have no scruples about the first. The appellate control is respectful to the State sovereignties compared with the original; and it stands upon high considerations of self defence, upon grounds of constitutional necessity not applicable to the other. The suability of the States might have been dispensed with, and the constitution still be safe. But the judicial control of the Union over State encroachments and usurpations, was indispensable to the sovereignty of the constitution to its integrity to its very existence. Take it away, and the Union becomes again a loose and feeble confederacy-a government of false and foolish confidence-a delusion and a mockery! Why is it in cases, in which individuals are parties in a State Court, that the judgment may be revised in this Court? Because the judiciary of the Union ought to possess ample power to preserve the constitution, and laws, and treaties of the Union, from violation by other judicatures. Its judicial powers should be commensurate with its other powers, and rights, and prerogatives. They might else be evaded and 1821. Cohens V. Virginia. 1821. Cohens V. Virginia. trampled under foot by judicatures in which the constitution does not confide. This high motive is as strong, at least, where a State is plaintiff or prosecutor in its own Courts, as where it is not. Indeed, it is far stronger; for all the motives to judicial leanings and partialities here operate in their fullest force, though the State judges may not be conscious of their influence. The sovereignty of the State law-State pride-State interests-are here in paramount vigour as inducements to error; and judicial usurpation is countenanced by legislative support and popular prejudice. Let the Court look to the consequences of this distinction. A State passes a law repugnant to the national constitution. It gives a remedy in the name of an individual-a common informer. You may control this law, if the State judiciary acts upon it. But the State may avoid this (as it seems) by authorizing the remedy in its own name; and you thus lose your protecting jurisdiction over the subject, although you might still exercise it, as in the other case, in the inoffensive mode of confining your control to the State judiciary. The whole constitution of the Union might thus be overturned unless force should be resorted to and the object of the constitution was to avoid force, by giving ordinary judicial power of correction. It has been said that a sovereign State of the Union is not amenable to judicature, unless made so by express words—eo nomine. I deny this as respects appellate jurisdiction, which acts, not on the State, but on its Courts. The words of the consti tution are sufficiently express, and all reason is on that side: especially since it is, or must be admitted, that these Courts may be thus controlled, and the legislative power of the State be reached through them, and controlled also: and especially too, when the constitution has not scrupled, in other cases, to subject the States to direct control. But it is contended, that there are cases arising under the constitution and laws of the Union, which, from their very nature, are not the subjects of judicial cognizance, and consequently are exceptions out of the general grant of judicial power under the constitution; such as the prohibition to the States to grant titles of nobility, &c.: and that the present case may be such an exception. But the very supposition admits, that if the case in question is suited to the exertion of judicial power, it is not an exception and the moment a State judiciary intervenes, judicial jurisdiction can, and ought to be exerted. It is unnecessary to inquire how the case must, in general, exist, in order to become the proper object of judicial cognizance; for here it does exist in a proper shape for that purpose. A State Court has intervened, and the regular appellate power of this Court may act. Nor does the proof of some exceptions arising from necessity, establish other exceptions free from that necessity. Many unlawful things cannot be restrained by judicature: but does it follow that where they can be restrained, they shall not? Again: It is said that the States may destroy the federal Government at their pleasure, merely by for 1821. Cohens V. Virginia. |