Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1821-04-10
SUPREUEC0URTqfMe .. STATES.
THE COHENs VS. VIRGINIA.
Speech dehrered 6y W,,. u. p. Harbour.


one OF the parties, or 10 the principl,
winch Is involved ~ the decision; tia
party is "A state and chat principle. u
me view which propose 10 pr sent -, is
HE extent Of The Judicial pOwer of III,
United States, IN relation 10 the States o
this Union.
lhe facts OF the case, as they appear
from the record, are shortly these BY
an act of the Commonwealth of Virgins
a penalty OF Gne hundred dollars IL i'm
posed upon any person who within its II.
mits, shall vend lottery tickets ia any
lottery, not authorized by its own laws :
The plaintiffs III error have, in violation If
this law, vended in Virginia, The tickets
al lottery not authorized by a law of
that state; for this violation, a prosecu.
ton was commenced in The borough, cour,
OF Norfolk; the plaintiffs in error, relied
Tor their defence upon The ground, that
the lottery, whose tickets they sold. was
authorized by the corporation of Wash
lngion City i'll the District Of Columbia.
By virtue OF an Act of Congress. giving
them that power and tina, therefore thew
were justified i'll making such sale, in
contraveniion of The law of the state !.
The court, however, gave judgment in
favor of tile com GiouweallI,, TO, The a.
mount of tie penalty inflicted by The state
ia~ and the plaintiffs in error now seek
to reverse that Judgment.
My purpose now is, to move the court
10 dismiss the arit of error, upon The
ground that the judicial power OF the q.
STATES docs not extend 10 the case in
oiher words, that this court has not iuv
rlsdiciion OF the case.
haH L.: 4
Jurisdiction. because of the subject mai.
Ter OF lie controversy without reference
TO the parties shall contend too. tI,a.
considering The character Of one Of the
parties, II the court could have iurisdic-
ton al all, il must be original and NOT
appellate and finally, that IL can take
neither original, nor appellate jurisdlc.
ton.
As 10 the fist point : II is conceded bv
all, that the Federal Government. is one
Of limited powers. THIS Distinguishing
tTah equally characteriZrs all lis DEPART
ments il ia will the judicial department
only, that nv present inquiry is connect
ed. II is in the 2i section Of the Sd ar
licle OF the constitution Of the u States.
that we find an enu,nera,ion of the OH
Jects, TO which The judicial power Of the
Union extends that part OF il. which
rela'es 10 The present discussio; declares
that, The judicial power shall extend
to all cases IN law and equity, arising eu.
der this constitution, the a,cs elite United
States, and treaties made, or Chich staH be
made under their authority." II Is moi Dre.
tended, hatany treaty has any sort OF re-
latlon 10 The present case befure, then.
This court can take Jurisdiction, IL must be
shewn, that This is a case arising either
under the constitution, or a law Of the
y. States. will endeavor 10 prove. that
IT does not belong TO either description.
These two classes of cases, are obvious
ly put In contradisiiiciiont to each other
and | think there will be no difficulty i'm
showing 10 the court, The difference in
their character, The constitution con
iains two different kinds of provisions
HE one, or may use The expression, ]
sell executed, Or capable of sci. execu-
non; the other, only exeCuiory, and rer
quifiag Legislative enactment, 10 give
them operation thus tue I'd SECTION o.
the 4th article, which declares that " the
citizens at each state, shall be entitled 10
all privileges and immunites of citizens
IN The several states :" the l0tb section OF
the lst article, which prohibits any state.
from making any thing but gold and sill
yer coin, a tender 10 payment of debts :;
from passing any law impairlng Tie
obligation of cOatracts - and Tie probi.
bItIon 10 congress in lhe 9th section, and
to the states in the I0,lI section of lie
same article, 10 pass any bin of attain
der, or eX post iac,o law" are all exam.
pies OF the sels-execu,ed provisions of the
constitution by winch mean 10 saw,
Thai the constitution, Ia these instances,
Is per Sc operative. without The AID OF le-
gislaIlon. On the contrary, The various
provisions Of The Ssh seciDn OF die same
article, such Tor example, " as the pow
er to establish ali uniform system Of ma
turalizdIion, and uuitorA laws OIL the
subject OF bankruptcy" ase exeCutory
only that IS, without an act OF lrgisla =
iIon, they have no operative effect.
! understand fiie cases then arising
under the constitution, 10 be those,
which arise under its selt-execuled pro
Visions aud those arising uader Tie
laws Of The u. States, 10 be those which
occur, under some Law, passed in virtue
OF The execuiOry provisions of the con
slituiiOp.-Ii ibis idea be correct, then
ijils Ia not a case arising under The eOH-
SftAtiOn aud wliI now attempt 10 slew
thai II Soes not correspond with the
other part Of The description, That is,
that II does not arise under aw Of Me
United States. In The first place, would
remark, thai this court, in lie case OF
Hepburn d Ezy Cad Cranoh 445.) decis
ded, thai The Disiric, Of Columbia, was
pot slate, Within The meaning of The
constitution, aud that therefore a ciiizeH
Of that District could uoi sustain an ac
lIon against citizen OF Virginia, IN The
| circuit federal court of HAT stale. Now
Sir, il would sound coriously, TO call a
law passed for a DIslT not itself cxail.
| ID 10 the dignity OF a state, a las OF Tive
United States. 1t would seem more
strange 10 call law passed by the cor.
poraIion OF Washington, Tor the loca