Cohens v. Virginia NOTE. THIS case came on writ of error from the Quarterly Sessions Court of the borough of Norfolk, Virginia, after appeal to the higher Virginia Court had been denied, to review the conviction of one Cohens under a Virginia statute prohibiting the sale of lottery tickets. Cohens' defense was that an act of Congress gave him the right to sell lottery tickets and overrode the Virginia law. Before the question was argued on the merits the Supreme Court considered a motion to dismiss the appeal on the ground of want of jurisdiction, and it was on that motion that Marshall's opinion was delivered. It had already been decided by the Supreme Court in the case of Martin v. Hunters' Lessee, 1 Wheat., 304, that the Supreme Court had, under the Constitution and the Judicature Act, the power to review on appeal the determination of the highest court of any state, on a question involving the question of the construction or validity of a law of the United States or the construction of the Constitution. That decision had been delivered by Justice Story at great length, and with a force of statement and a greatness of reasoning and judicial statesmanship not unworthy of Marshall himself. Cohens v. Virginia affirmed the doctrines of that case and applied them to a case where an appeal was had from a state court to the Supreme Court in a case (involving a law of the United States) where a state was a party to the action. It was argued with all the vehemence and eloquence of the Jeffersonians that the doctrines of the Martin case did not apply when a state was a party, that so cardinal a principle of state's rights must, from 乘 the very nature of the Union, be read in as a limitation on the constitutional powers of the Supreme Court, and the objection was pressed that the eleventh amendment to the Constitution expressly forbade the judicial power from taking cognizance of a suit against a state. Marshall's opinion met and conquered every objection-with logic and convincing eloquence. This case completed the subjugation of the state courts on federal questions and established the federal judiciary supreme. It is hard to overestimate the importance of it. It filled Jefferson and the state's rights party with impotent and bitter anger. It was to them the final encroachment of the central government. That a sovereign state should be brought before the Supreme Court was the last humiliation. Surely Cohens v. Virginia is one of Marshall's greatest opinions. In clearness and vigor of arrangement, in splendor of cumulative argument, and in the power of phrase it ranks with any judicial effort. Less important and far-reaching than Marbury v. Madison, McCulloch v. Maryland, and Dartmouth College v. Woodward, it is more complete and convincing, more satisfying, than any of them. It expounds, one may say, finally and perfectly, the most important branch of the power of the federal judiciary,-emphasizing always what Marshall conceived to be the glory of the Union, the sovereign power of the central government. There is no more wonderful passage in all his opinions than that in Cohens v. Virginia beginning: "That the United States form, for many and for most important purposes, a single nation has not yet been denied. In war, we are one people. In making peace, we are one people. In all commercial regulations, we are one and the same people." That is the keystone of the arch. 26 Cohens ย. Virginia. [6 Wheat, 264.] 1821. For the defendants in error, on the motion to dismiss the writ of error, Mr. Barbour and Mr. Smith. Contra, Mr. D. B. Ogden and Mr. Pinkney. 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, 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 act 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.1 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: Ist. 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 1 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. 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 * 377 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 |