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1821.

Cohens

v. Virginia.

with Congress it is the exercise of a national power, and must, therefore, be co-extensive in its operation with the Uniun, although the money to be raised by it cannot be applied to the use of any other City in the Union than that which is the national capital, and in which, consequently, all the States, and all the people, have a common interest.

Mr. Webster, contra, insisted, that Congress had not the power, under the constitution, of establishing a lottery in the District of Columbia, for municipal purposes, and of forcing the sale of the tickets throughout the Union, in contravention of the State laws; and, that even if they had the power,

the law now in question did not purport to authorize the Corporation of the City of Washington thus to force the sale of the tickets. It is clear that Congress, as a legislative body, exercise two species of legislative power: the one, limited as to its objects, but extending all over the Union : the other, an absolute, exclusive legislative power over the District of Columbia. The preliminary inquiry in the case now before the Court, is, by virtue of which of these authorities was the law in question passed ? When this is ascertained, we shall be able to determine its extent and application. In this country, we are trying the novel experiment of a divided sovereignty, between the national government and the States. The precise line of division between these is not always distinctly marked. Government is a moral, not a mathematical science; and the powers of such ernment especially, cannot be defined with mathe

of such a govevery

1821.

Cohens

matical accuracy and precision. There is a competition of opposite analogies. We arrive at a just conclusion by reasoning from these analogies, and

Virginia. by a general regard to the objects and purposes

of this scheme of government. With a view to the present question, it may, perhaps, be safely admitted, that there are certain acts of legislation passed by Congress, with a local reference to this District, which proceed from the general powers with which Congress are invested. They are local in their immediate operation and effect, but they are passed in virtue of general legislative powers. Such are the acts appropriating moneys for constructing the navy yard and the capitol. Some other acts are of a mixed nature. There are others clearly local, and passed in virtue of the local, exclusive jurisdiction. And of this latter class is the act now under consideration. It is for the establishment of a local City government, which arises from the exclusive power, of legislation; and the clause authorizing the establishment of lotteries, is combined with other clauses of a mere municipal character: Noscitur a sociis. Every act of legislation must be limited by its subject matter, and there is nothing to show that this power is to be exercised more extensively than the other powers of the Corporation ; nothing to show that this municipal power is to be carried beyond the City. It may be exercised within the City alone, and Congress has not said, and the Court cannot intend, that it is to be exercised in other parts of the Union. Congress could not give such a charter to any other city in the Union, and if

federal

1821.

Cohens

V.

Virginia,

power granted in the constitution were destroyed,
this
power

would remain. It exists independently, and the legislative powers of the States can never conflict with it, because it can never operate within the States. Being a case of mere local legislation, it is not a casus fæderis within that clause of the constitution which declares that the laws of the United States shall be the supreme law of the land. There can be no question of supremacy and subordination where there is no connection or conflict. The constitution makes this provision, because other legislative powers were to operate throughout the Union ; the Congress and the States were to legislate over the same subjects, and over the same territory; and therefore there might be conflict. It was because the two codes were to prevail in the same places, and over the same persons. But the provision cannot extend to laws enacted by Congress for the mere local municipal government of the City, because the reason on which it is founded does not extend to a case where all legislation is necessarily exclusive. There was no more reason in this instance to provide for a conflict of the two authorities, than in the case of the laws of a foreign State, which, except in the familiar example of questions relative to the lex loci contractus, cannot come in collision with our own laws, because they cannot operate extra-territorially. So here, from the very nature of things, there can arise no conflict between the local laws of the District of Columbia, and those of the States, because each code is confined to its own territory. Any sound interpretation of the law

1821.

Cohens

V. Virginia

in question, must limit it to the City of Washington. It does not even extend to the other municipal Corporations within the District of Columbia, because it contains provisions expressly for the government of Washington alone, and does not profess to extend any of them beyond the limits of that City. A law caonot exceed the authority of the lawgiver, and that does not extend beyond the District, and is limited in its actual exercise to the City. There is no authority showing that a grant of power of this kind to a municipal Corporation, extends beyond the local limits of the City.

The Attorney-General, for the plaintiffs in error, in reply, contended, that Congress, in passing the law under consideration, acted in the name of the whole nation, and for a great national object. Congress did not, as contended in the argument on the jurisdiction of the Court, succeed, by the cession, merely to the legislative powers of Maryland and Virginia, over this District. They are not the trustees of those States only; they are the trustees of the whole Union. The cession was to the Congress and government of the United States. The jurisdiction over the territory belongs to the entire people of the United States. It is not the

It is not the power of Maryland and Virginia which Congress represents, but the power of all the States; and the territory ceded is to be looked at, not with reference to its origin, not as still forming ideally a part of Maryland and Virginia, but is to be regarded as if incorporated into every State in the Union. The question is not, then, to be solved by ask

1821.

Cohens

v. Virginia.

ing what those States could do with respect to this territory, but what each State of the Union could do with regard to its own territory: because, to borrow an expression from the municipal law, each State of the Union is seized jointly with all the rest, per me et per tout, of the whole jurisdiction over this territory. The acts of the Congress in legislating for the District of Columbia are the acts of all the people of all the States. It is therefore a fallacy in argument to represent Congress as succeeding merely to the same degree of power which Maryland and Virginia formerly had over this territory. Could those States have taxed the other States, or borrowed money on their credit, for the improvement of this territory, as Congress have done? Although the jurisdiction of the States who formerly held the sovereignty and domain of this territory has been supplanted by Congress, the substituted jurisdiction is far more extensive than that which they held. It is a jurisdiction, which in the instances mentioned, and

many others which might be enumerated, is capable of affecting all the States. It cannot be denied that the character of the jurisdiction which Congress has over the District, is widely different from that which it has over the States; for, over them, Congress has not exclusive jurisdiction. Its powers over the States are those only which are specifically given, and those which are necessary to carry them into effect : whilst over the District it has all the powers which it has over the States, and in addition to these, a power of legislation exclusive of

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