be useless, since it is apparent that its operation did not commence before the first Wednesday in March, 1789, before which time Virginia had passed the act which is alleged to violate the constitution.

Judgment affirmed, with costs.

5 Wh. 422.

COHENS v. STATE OF VIRGINIA.

FEBRUARY TERM, 1821.

[6 Wheaton's Reports, 264-447.]

P. J. and M. J. Cohen were indicted, under an act of Virginia, for selling lottery tickets; and judgment was given against them. An appeal to the higher Virginia courts being refused, because no higher court had jurisdiction of the subject-matter, they sued out a writ of error* to the supreme court of the United States. The attorney for Virginia moved to dismiss this writ, on the ground of want of jurisdiction in the supreme court, upon which motion Chief Justice Marshall delivered the opinion of the court as follows:-†

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

* This writ brings a suit from a lower into a higher court, alleging error in the opinion given by the lower tribunal.

†The opinion upon the merits of this case is not given, as it touched no constitutional point.

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 judg ment to be entered that the defendants are guilty, and that the commonwealth recover against them one hundred dollars and

costs."

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.

21. 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 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, it 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.

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 constitution defines the extent of the judicial power of the United States. Jurisdiction is given to the courts of the union in two classes of cases. In the first, their jurisdiction depends on the character of the cause, whoever may be the parties. This class comprehends "all cases in law and equity arising 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 unimpor tant 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 capable of self-execution; examples of which are to be found in the second section of the fourth article, and in the tenth section of the first article.

A case which arises under a law of the United States must, we are likewise told, be a right given by some act which becomes necessary to execute the powers given in the constitution, of which the law of naturalization is mentioned as an example.

The use intended to be made of this exposition of the first part of the section, defining the extent of the judicial power is not clearly understood. If the intention be merely to distinguish cases arising under the constitution from those arising under a law, for the sake of precision in the application of this argument, these propositions will not be controverted. If it be to maintain that a case, arising under the constitution or a law, must be one in which a party comes into court to demand something conferred on him by the constitution or a law, we think the construction too narrow. A case in law or equity consists of the right of the one party, as well as of the other, and may truly be said to arise under the constitution or a law of the United States, whenever its correct decision depends on the construction of either. Congress seems to have intended to give its own construction of this part of the constitution in the twenty-fifth section of the judiciary act; and we perceive no reason to depart from that construction.

The jurisdiction of the court, then, being extended by the letter of the constitution to all cases arising under it, or under the laws of the United States, it follows that those who would

6 Wh. 379.