1821.

Cobens

V.

Virginia.

bearing to elect Senators, and to provide for the election of a President and Representatives, and that the authority of the Union is incompetent to coerce them. Such extreme arguments prove nothing to the present purpose: but suppose the States could not be coerced in such a case to do their duty, because no intervening Court or agent is necessary to the accomplishment of such a desperate purpose, does this prove that you cannot defensively control active violations of the constitution or laws, when a controllable judicature or agent intervenes to perpetrate these violations ?

It is also said, that this is a prosecution under a penal statute, and that criminal cases peculiarly belong to the domestic forum. The answer is, that so was the case of M'Culloch v. Maryland, a qui tam action, under a penal law of that State, giving one half of the penalty to the State, and the other half to the informer; yet this Court did not consider the nature of the suit, or the circumstance of a State being a party, as forming a valid objection to the jurisdiction. Nobody objects to a State enforcing its own penal laws: all that is claimed is, that in executing them, it should not violate the laws of the Union, which are paramount: Sic utere tuo ut alienum non lædas.

The other suppositions which have been stated of bills of attainder and ex post facto laws passed by the States, and attempted to be executed, but decided by this Court to be unconstitutional, and yet the

a 4 Wheat. Rep. 316.

State Courts persisting in carrying them into effect, even in capital cases, are too wild and extravagant, to illustrate any question which can ever practically arise.

1821.

Cohens

V.

Virginia.

Mr. Chief Justice MARSHALL delivered the opinion March 3d. of the Court.

This is a writ of error to a judgment rendered in the Court of Hustings for the borough of Norfolk, on an information for selling lottery tickets, contrary to an act of the Legislature of Virginia. In the State Court, the defendant claimed the protection of an act of Congress. A case was agreed between the parties, which states the act of Assembly on which the prosecution was founded, and the act of Congress on which the defendant relied, and concludes in these words: "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 those acts, the lottery tickets sold by the 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: And 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."

1821.

Cohens

V.

Virginia.

Judgment was rendered against the defendants; and the Court in which it was rendered being the highest Court of the State in which the cause was cognizable, the record has been brought into this Court by writ of error."

The defendant in error moves to dismiss this writ, for want of jurisdiction.

In support of this motion, three points have been made, and argued with the ability which the importance of the question merits. These points

are

1st. That a State is a defendant.

2d. That no writ of error lies from this Court to a State Court.

3d. The third point has been presented in different forms by the gentlemen who have argued it. The counsel who opened the cause said, that the want of jurisdiction was shown by the subject matter of the case. The counsel who followed him said, that jurisdiction was not given by the judiciary act. The Court has bestowed all its attention on the arguments of both gentlemen, and supposes that their tendency is to show that this Court has no jurisdiction of the case, or, in other words, has no right to review the judgment of the State Court, because neither the constitution nor any law of the United States has been violated by that judgment.

The questions presented to the Court by the two

a The plaintiff in error prayed an appeal from the judgment of the Court of Hustings, but it was refused, on the ground that there was no higher State tribunal which could take cognizance of the case.

first points made at the bar are of great magnitude, and may be truly said vitally to affect the Union. They exclude the inquiry whether the constitution and laws of the United States have been violated by the judgment which the plaintiffs in error seek to review; and maintain that, admitting such violation, it is not in the power of the government to apply a corrective. They maintain that the nation does not possess a department capable of restraining peaceably, and by authority of law, any attempts which may be made, by a part, against the legitimate powers of the whole; and that the government is reduced to the alternative of submitting to such attempts, or of resisting them by force. They maintain that the constitution of the United States has provided no tribunal for the final construction of itself, or of the laws or treaties of the nation; but that this power may be exercised in the last resort by the Courts of every State in the Union. That the constitution, laws, and treaties, may receive as many constructions as there are States; and that this is not a mischief, or, if a mischief, is irremediable. These abstract propositions are to be determined; for he who demands decision without permitting inquiry, affirms that the decision he asks does not depend on inquiry.

If such be the constitution, it is the duty of the Court to bow with respectful submission to its provisions. If such be not the constitution, it is equally the duty of this Court to say so; and to perform that task which the American people have assigned to the judicial department.

1821.

Cohens

V.

Virginia.

1821.

Cohens

V.

Virginia.

The jurisdic tion of this Court, under the 25th section

1st. The first question to be considered is, whether the jurisdiction of this Court is excluded by the character of the parties, one of them being a State, and the other a citizen of that State?

The second section of the third article of the conof the Judicia- stitution defines the extent of the judicial power of c. 20, is not the United States. Jurisdiction is given to the circum- Courts of the Union in two classes of cases. In

ry Act of 1789,

excluded by

the

stance of the

the parties, as

character of the first, their jurisdiction depends on the character ing a State, and of the cause, whoever may be the parties. This that class comprehends "all cases in law and equity ari

the other a citi

zen

State.

sing under this constitution, the laws of the United States, and treaties made, or which shall be made, under their authority." This clause extends the jurisdiction of the Court to all the cases described, without making in its terms any exception whatever, and without any regard to the condition of the party. If there be any exception, it is to be implied against the express words of the article.

In the second class, the jurisdiction depends entirely on the character of the parties. In this are comprehended "controversies between two or more States, between a State and citizens of another State," "and between a State and foreign States, citizens or subjects." If these be the parties, it is entirely unimportant what may be the subject of controversy. Be it what it may, these parties have a constitutional right to come into the Courts of the Union.

The counsel for the defendant in error have stated that the cases which arise under the constitution must grow out of those provisions which are capa