extent of that authority? what its qualities under the law which gave it, and the constitution under which that law was passed?

If an officer of the United States does any act for which a state court calls him to account, and he relies in his defense upon the authority, real or supposed, of a statute of Congress, his act is not a law of the United States; but his defense is referred to the effect and validity of a law of the United States, and that is again referred to the constitution, which is the paramount law. The last act done need not be a law of the United States. It is sufficient, if it is attempted to be justified, or its consequences maintained, under a law of the United States, which it is alleged gave to it a protecting power in the case before the court.

It is, however, asserted, that the constitution gives jurisdiction only in cases arising under it, or the laws or treaties of the United States; and that this case does not arise under a law of the United States, because the act of Congress now in question is not a law of the United States. An act of the Congress, in its [364 capacity of local sovereign of the District of Columbia, is said not to be a law of the United States. But whose law, then, is it? The United States in Congress assembled, are the local sovereigns of the district, and it is by them that this law is passed. Is it less a law of the United States, because it does not operate directly upon the Union at large? A statute is not a law of the United States on account of the subject on which it acts being limited or unlimited. It is a law of the United States, because it is passed by the legislative power of the United States. The legislative authority over the District of Columbia, is that of the Union. Its sphere is limited, but the power itself is even greater than the general federal power of the Union. It is the power of the people and the states combined, exerted upon their peculiar domain. It is the same Congress which passes both description of laws. The question, whether the law operates beyond the district, is the question upon the merits hereafter to be discussed.

Again, it is said, that the by-law alone is in question, and not the act of Congress: because the by-law is not passed by virtue of the act of Congress, but by virtue of the inherent power of the people of the district to govern themselves. The act of Congress only calls this inherent power into action; and this inherent power, when so called into action, is the only power which this court can deal with. The fallacy of this argument consists in its confounding inherent power with an inherent capacity to receive power. The subordinate legislative power of the territories and [365 districts, which belong to the Union in full sovereignty, is not their power, but that of their superior. But admit this abstract doctrine of inherent power; the question still recurs, what is the constitutional effect of this power being excited into action by the paramount power. The action of the inherent power will still depend upon the power by which it is set in motion; and what it can, or cannot do, under that impulse, is just the same question with the other.

It is also objected, that a law emanating from the local power of Congress over the District of Columbia, cannot bind the Union. But whether it can or not is the very question to be determined, when the merits come to be discussed; which the writ of error gives authority to decide; and which cannot be decided without entertaining the writ of error. The argument on the other side, proceeds in a vicious circle. It is asserted, that you must quash the writ of error, because you have no jurisdiction over the case or question. It is, then, said, that you must take jurisdiction of, and inquire into, the case and the question, in order that you may dismiss the writ of error; or, in other words, you have, and you have not, jurisdiction over the case and question, and you ought to decide them in order to see that you ought not to decide them. And here again the supposed absurdity of the claim of protection, by the defendant on the record, against the act of Virginia, is urged to authorize a refusal to inquire upon the writ of error, whether it is absurd or not.

366] 3. The next ground of objection to the jurisdiction is, that the writ of error is itself a suit against a state by a citizen of that or some other state. And Bac. Abr. tit. Error (L.), is cited as an authority to show that a release of all suits is a release of a writ of error. But even admitting that it may sometimes be technically called a suit, it is not such a suit as is contemplated by the constitution. A writ of error, where a party is to be restored to something, may be released by a release of all suits or actions, because in this respect it resembles an action. But this writ of error is not a suit, because the party is not to be restored to anything. A reversal of the judgment below will leave things just as they were before the judgment. But the state of Virginia is not

compelled to come into this court by the writ of error. A citation, or scire facias ad audiendum errores, is only notice to the state, leaving it at her option voluntarily to appear. It does not act compulsorily upon the state. It acts upon the court, which she has used as the instrument to enforce her law. A case is presented by the interference of the judiciary of the state, for the interposition of the appellate power of this court. The object is to reverse the judgment, and that done, there is an end of the exercise of power. The United States are liable to the same coercion. They may be called before this court in the same manner, and the judgments obtained in their favor may be reversed. And is it, then, derogatory to the sovereignty of a particular state, that its judgments should be liable to be controlled in the same manner, in 367] cases within the judicial power of the Union? This control is exerted upon the judiciary; upon the judgments of the judiciary. The state is incidentially affected; but that has been already determined in this court to be immaterial. Nor is this sort of control more exceptionable than that which is constantly exercised, in suits between private parties, over the acts of the state legislatures and executives, upon the same ground of their repugnancy to the constitution and laws of the Union.

If it be asked whether you can give costs against the state, and enforce the payment, the answer is, that you cannot do so in any case upon a mere reversal of a judgment. And even if you could in a case between private parties, is it any objection to the appellate jurisdiction of this court, where the United States are plaintiffs below, that you cannot award and enforce the payment of costs against them? It is not jurisdiction over the state of Virginia that is claimed, but over a question arising under the laws of that state, and over the judgments of her courts construing those laws. This point is incidentally touched in Martin v. Hunter, in considering the question as to removal of suits before judgment, and it is there said by the court that the remedy of removal of suits would be utterly inadequate to the purposes of the constitution, if it could act only on the parties. and not upon the state courts.

4. Lastly. It is insisted, for the de- [368 fendant in error, that this court has no jurisdiction in the present case, because a state is a party to the original controversy which the writ of error brings before the court. That the jurisdiction of this court in all cases, where a state is a party, is original, and therefore it cannot have appellate jurisdiction in this case.

The obvious answer to this argument is, that the jurisdiction now claimed does not arise under that part of the constitution which gives original jurisdiction to the Supreme Court in cases in which a state is a party; but the jurisdiction is asserted under that clause which given the federal judiciary cognizance of all cases arising under the constitution, laws, and treaties of the United States, without regard to the character of the parties. In this latter class of cases the Supreme Court has appellate jurisdiction. In some of this description of cases, the jurisdiction could not be originally exercised. The penal laws of a state cannot be originally enforced, or enforced at all, by a judicature of the Union. They cannot therefore form the subject of, or create subjects for, its original jurisdiction. The courts of the United States can here exert only a controlling or restraining power for the protection of the rights of the Union, and this can only be done by appeal or writ of error. This view of the subject is taken in Martin v. Hunter. The court there says: "Suppose an indictment for a crime in a state court, and the defendant should allege, in his defense, that the crime was committed by an ex post facto act of the state; must not the state court, in the exercise of a juris- [369 diction which has already rightfully attached, have a right to pronounce on the sufficiency and validity of the defense? 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 in surmountable," etc. 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 ex- 370*] tend to all cases arising under the *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 be371] 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 selfdefense. 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 *trampled under foot by [*372 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 pridestate interests-are here in paramount vigor 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 constitution are suffi-[373 ciently 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, etc.; 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, mere-374] ly by forbearing 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.1 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 laedas.

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 uncon-375] stitutional, and yet the 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.

Mr. Chief Justice Marshall delivered the opinion 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, not withstanding 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."

376] 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 a 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 first points made at the bar are [377 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 of 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.

1st. The first question to be con- [378 sidered 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 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 379] which are capable of self-execution; examples of which are to be found in the 2d section of the 4th article, and in the 10th section of the 1st 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