In the great case of Cohens v. Virginia23 the question arose whether the Supreme Court of the United States might exercise jurisdiction in cases appealed to it from the highest court of a State, in cases in which the State had obtained a judgment, civil or criminal, against a citizen, but in doing so had overruled a federal right, privilege, or immunity set up by that citizen. Upon the part of Virginia it was argued that not only did the grant by the Constitution of judicial power to the United States not contemplate a right to revise the decisions of state courts in which a State was a party (as in the case at bar, in which, being a criminal case, the State appeared as the original plaintiff), but that to exercise the right to reverse a judgment obtained in its favor in its courts would be, in effect, to entertain a suit against itself.

21 3 Pet. 12; 7 L. ed. 585.

22 Other objections to the decree of the court were raised in the dissenting opinion, which, however, do not need to be considered at this place.

23 6 Wh. 264; 5 L. ed. 257.

The facts upon which this case was founded were these: Congress had authorized the establishment of a lottery by the corporation of the city of Washington in the District of Columbia. Virginia had passed a law forbidding the sale, within its limits, of lottery tickets. Cohens was arrested for selling in Virginia lottery tickets of the Washington lottery, and in defense set up the law of Congress.24 This defense was overruled, Cohens was convicted, and his conviction affirmed in the highest court of Virginia. Thereupon, by writ of error, he appealed to the Supreme Court of the United States under the authority of the twenty-fifth section of the Judiciary Act.

Chief Justice Marshall rendered the unanimous opinion of the court. After calling attention to the clause of the federal Constitution which gives to the federal judiciary jurisdiction in all cases, in law and equity, arising under the Constitution, laws, and treaties of the United States, it is pointed out that upon those who would make exceptions to this general grant of power must fall the burden of proof. In fact, as Marshall goes on to declare, to grant the contention set up by Virginia would be to defeat the very ends for the attainment of which the Constitution was adopted. If granted, he says, " what power of the [Federal] Government could be executed by its own means, in any State disposed to resist its execution by a course of legislation ? The laws must be executed by individuals acting within the several States. If these individuals may be exposed to penalties, and if the courts of the Union cannot correct the judgments by which these penalties may be enforced, the course of the government may be, at any time arrested by the will of the one of its members. Each member will possess a veto on the will of the whole." Concluding his argument upon this point, Marshall says: "After bestowing on this subject the most attentive consideration, the court can perceive no reason founded on the character of the parties for introducing an exception which the Constitution has not made, and we think that the judicial power, as originally given, extends to all cases arising under the Constitution or a law of the United States, whoever may be the parties."

24 As to the power of Congress as decided in this case, when acting as the legislature for the District of Columbia to authorize acts beyond its limits, see post, section 162.

The State of Virginia had, however, as we have said, still another argument which had to be overcome. Granting, counsel said, that the case be construed to come within the federal judicial power as originally granted by the Constitution, it has nevertheless been withdrawn from that power since the adoption of the Eleventh Amendment. To this argument, Marshall replied that the Amendment was not intended to cover cases in which a State might be defendant in error, but only those originally instituted against her by an individual. By that amendment the judicial power is not to extend to any suit " commenced or prosecuted " against a State by citizens of another State. " To commence a suit," says Marshall, " is to demand something by the institution of a process in a court of justice, and to prosecute the suit is, according to the common acceptation of language, to continue that demand. By a suit commenced by an individual against a State, we should understand the process sued out by that individual against the State, for the purpose of establishing some claim against it by the judgment of a court; and the prosecution of that suit is its continuance. Whatever may be the stages of progress, the actor is still the same. ... If a suit brought in one court, and carried by legal process to a supervising court, be a continuation of the same suit, then this suit [at bar] is not commenced nor prosecuted against a State. It is clearly in its commencement the suit of a State against an individual, which suit is transferred to this court, not for the purpose of asserting any claim against the State, but for the purpose of asserting a constitutional defense against a claim made by a State,"