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1821.

Cohens

V. Virginia.

legislatures, and the felon who should escape out of the fort, or other place, in which the felony may hare been committed, could not be apprehended by the marshal, but must be demanded from the executive of the State. But we know that the principle does not apply; and the reason is, that Congress is not a local legislature, but exercises this particular power, like all its other powers, in its high character, as the legislature of the Union. The American people

thought it a necessary power, and they conferred it for their own benefit. Being so conferred, it carries with it all those incidental powers which are necessary to its complete and effectúal execution.

Whether any particular law be designed to operate without the District or not, depends on the words of that law. If it be designed so to operate, then the question, whether the power so exercised be incidental to the power of exclusive legislation, and be warranted by the constitution, requires a consideration of that instrument. In such cases the constitution and the law must be compared and construed. This is the exercise of jurisdiction. It is the only exercise of it which is allowed in such a case. For the act of Congress directs, that "no other error shall be assigned or regarded as a ground of reversal, in any such case as aforesaid, than such as appears on the face of the record, and immediately respects the before mentioned questions of validity or construction of the said constitution, treaties,” &c.

The whole merits of this case, then, consist in the construction of the constitution and the act of Con

1821.

Cohens

Virginia.

gress. The jurisdiction of the Court, if acknowledged, goes no farther. This we are required to do without the exercise of jurisdiction.

The counsel for the State of Virginia have, in support of this motion, urged many arguments of great weight against the application of the act of Congress to such a case as this ; but those arguments go to the construction of the constitution, or of the law, or of both; and seem, therefore, rather calculated to sustain their cause upon its merits, than to prove a failure of jurisdiction in the Court.

After having bestowed upon this question the most deliberate consideration of which we are capable, the Court is unanimously of opinion, that the objections to its jurisdiction are not sustained, and that the motion ought to be overruled.

Motion denied.

March 2d.

The cause was this day argued on the merits.

Mr. D. B. Ogden, for the plaintiffs in error, stated, that the question of conflict between the act of Congress and the State law, which arose upon the record, depended upon the 8th section of the first article of the constitution, giving to Congress the exclusive power of legislation, in all cases whatsoever, over the District which had become the seat of the government of the United States, by cession from the States to whom it formerly belonged. Under this power, Congress has authorized the establishment of a lottery at the seat of government. Can

1821.

Cohens

v. Virginia.

the State of Virginia prevent the sale of tickets in that lottery within her territory, consistently with the constitution ? This question must depend upon the nature of the constitutional power of Congress, and of the law by which it is exercised. It was said by the counsel for the defendant in error, on the former argument, that the power is municipal, to be exercised over the District only, and, of course, confined in its operation to the limits of the District. But, in order to determine whether this is the true interpretation of the clause in question, we must more minutely examine what is the nature of the authority granted. The clause was not intended to give to Congress an unlimited power to legislate in all cases, without reference to other provisions of the constitution. Otherwise Congress might pass bills of attainder and ex post facto laws, and exercise a despotic authority over the District of Columbia, and its citizens would thus be deprived of their rights entirely. Nor was it intended to authorize the exercise by Congress of its general powers as a national legislature, within the District. Nor to exempt the District from the operation of those general powers. But the clause was inserted for the purpose of securing the independence of the national legislature, and government, from State control. The object in view was, therefore, strictly a national object. The District was created only for national purposes, and every law passed for its government is peculiarly a national law. The words, “ exclusive

1821.

Cohens

v. Virginia.

legislation in all cases whatsoever,” were meant to exclude all State legislative power; and to vest in Congress, in addition to its general powers over the whole Union, all possible powers of legislation over the District. The law in question, is the expression of the national will on a national object. It is, then, an act of the general legislative power of the Union,

, and its operation must be co-extensive with the limits of the Union, unless it is limited to the District of Columbia in express terms, or from the nature of the power itself being incapable of acting without the District. That the whole Union has an interest in the City of Washington, as the national capital, is shown by the cotemporaneous exposition of the constitution by its framers, and by the subsequent acts of the national legislature, providing for its improvement and embellishment. It is admitted, that some of the provisions of the law now in question, are local in their very nature, and, therefore, confined to the City, or the District, in their operation. But the power of the Corporation to establish lotteries, with the consent of the President, is not of this nature. Lottery tickets are an article of commerce, vendible in every part of the Union, as well as in the District of Columbia. A State law which forbids a citizen to sell or buy a ticket in a lottery, legally established by the national legislature, for national purposes, infringes the constitutional rights of the citizen, and tends to iinpede and defeat the exercise of this national power. He cannot be punished by a State, for selling or buying that which Congress

1821.

Cohens

v.

has, in the exercise of a great national power, au-
thorized to be bought or sold. The authority of
establishing this lottery, so far from being confined
to the City, could not be conveniently or effectually Virginia.
exercised without extending the saleable quality of
the tickets throughout the Union. As a source of
revenue, it would be inadequate to the objects for
which it was established, without this extension. It
is not one of the ordinary sources of revenue for the
mere municipal wants of the City. It is a national
grant for national purposes, to be used in each par-
ticular instance, with the approbation of the Presi-
dent. It is, then, a national law, enacted for a na.
tional purpose, and has no other limits in its opera-
tion than the limits of the legislative power itself.
If Congress had intended to confine its operation
within the District of Columbia, they would have
expressed that intention. If, then, Congress have a
right to raise a revenue,

for
any
national

purpose, by establishing a lottery, they had a right to establish this lottery; and no State law can defeat this, any more than the exercise of any other national

power. But even supposing that it is not a tax or duty, such as Congress have the express power of establishing ; yet if it be necessary and proper, in the judgment of the Court, to carry into effect any power expressly granted, such as that of establishing and governing the City, it may be exercised throughout the Union. Congress have the same power to establish lotteries for this purpose, as the State legislatures, and every other legislature, have. The only difference is, that

Vol. VI.

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