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An honourable gentleman from Rhode Island,* whose speech was distinguished for its ability, and for an admirable force of reasoning, as well as by the moderation and mildness of its spirit informed us, with less discretion than in general he exhibited, that the word "migration" was introduced into this clause at the instance of some of the Southern States, who wished by its instrumentality to guard against a prohibition by Congress of the passage into those States of slaves from other States. He has given us no authority for this supposition, and it is, therefore, a gratuitous one. How improbable it is, a moment's reflection will convince him. The African slave-trade being open during the whole of the time to which the entire clause in question referred, such a purpose could scarcely be entertained; but if it had been entertained, and there was believed to be a necessity for securing it, by a restriction upon the power of Congress to interfere with it, is it possible that they who deemed it important would have contented themselves with a vague restraint, which was calculated to operate in almost any other manner than that which they desired? If fear and jealousy, such as the honourable gentleman bas described, had dictated this provision, a better term than that of "migration," simple and unqualified, and joined too with the word "importation," would have been found to tranquillize those fears and satisfy that jealousy. Fear and jealousy are watchful, and are rarely seen to accept a security short of their object, and less rarely to shape that security, of their own accord, in such a way as to make it no security at all. They always seek an explicit guaranty; and that this is not such a guaranty this debate has proved, if it has proved nothing else.

Sir, I shall not be understood by what I have said to admit that the word migration refers to slaves. I have contended only that if it does refer to slaves it is in this clause synonimous with importation; and that it cannot mean the mere passage of slaves, with or without their masters, from one State in the Union to another.

But I now deny that it refers to slaves at all. I am not for any man's opinions or his histories upon this subject. I am not

* Mr. Burrill.

accustomed jurare in verba magistri. I shall take the clause as I find it, and do my best to interpret it."

[After going through with that part of his argument relating to this clause of the constitution, which I have not been able to restore from the imperfect notes in my possession, Mr. Pinkney concluded his speech by expressing a hope that what he deemed) the perilous principles urged by those in favour of the restriction upon the new State would be disavowed or explained, or that at all events the application of them to the subject under discussion would not be pressed, but that it might be disposed of in a manner satisfactory to all by a prospective prohibition of slavery in the territory to the north and west of Missouri.]

No. VIII.

OPINION IN THE CASE OF COHENS AGAINST THE

STATE OF VIRGINIA.

By the constitution of the United States, power is given to Congress" to exercise exclusive legislation, in all cases whatso“ever, over such District (not exceeding ten miles square) as "may, by cession of particular States, and the acceptance of "Congress, become the seat of the government of the United "States."

This clause was no doubt inserted in the constitution from the indispensible necessity which was felt to exist, that the national government should have entire authority in the place where it was to be located. It was a government established for national purposes, and it was fit and proper that the national legislature, and the members of it, should be entirely free from, and unmolested by, the authority or power of any State legislature.

By an act of Congress power is given to the corporation of the City of Washington, to authorize the drawing of lotteries for effecting any important improvement in the city, which the ordinary funds or revenue thereof will not accomplish: Provided, that the amount to be raised in each year shall not exceed the

sum of ten thousand dollars; and provided, also, that the object for which the money is intended to be raised, shall be first submitted to the President of the United States, and shall be approved by him.

Under the power given by this act of Congress, the corporation of the city of Washington have established lotteries for the purpose of effecting important improvements in the said city, which the ordinary funds or revenue thereof will not accomplish; and the object for which the money intended to be raised by the said lotteries is to be applied, has been submitted to the President of the United States, and has been approved by him.

Have the legislatures of the individual States power, by any laws which they can pass, to prohibit the sale of the tickets in the lotteries thus established in the city of Washington ?

We think the State legislatures have no such power.

This is a lottery authorized by Congress, for the purpose of making important improvements in the city, which may be styled the National City, in the improvement of which the nation is concerned. It is therefore a national lottery, authorized by the national legislature; and it would be monstrous if any State legislature could impede the execution of a law made for national purposes, relative to a District over which the national legislature have the exclusive right of legislation. Congress have the right to judge of the proper means of improving the seat of government; they have the power of raising those means, by any law not forbidden by the constitution, and no State legislature can, consistently either with the letter or spirit of the constitution, interfere with the exercise of this power. It may be conceded, that the power of legislation, over the district, vested in Congress by the 17th clause of the 8th section and first article of the constitution, is local and territorial with reference to the sphere of its direct and immediate action, but this concession leaves the matter of the present inquiry as much at large as it was before: Since it is still certain that the power itself is the power of the nation, that the whole Union are at once the grantors and (by their representatives) the depositories of it; that the District upon which, or with a view to which, it is exerted, is entirely a national District, and that the sovereignty of Congress over it, was communicated for national ends.

But for the above-mentioned clause in the constitution, the territory included within the District of Columbia would be liable to no other legislation by Congress than that which it may exercise over the States. With views of general policy, that clause invests Congress with complete dominion over the District, in addition to, or involving and blended with, the other enumerated or general powers of Congress, which it was intended to assist and fortify.

As this dominion flows from the same source with every other power possessed by the government of the Union; as it is exerted by the same Congress; as it was created for the comm›n good and for universal purposes, it is impossible that it should not be of equal obligation, throughout the Union, in its effects and consequences, with any power whatever known to the constitution.

The government of the United States is a government of enumerated powers, all of which are upon the same level. The power to raise and support armies (with all its dependent powers) may be of higher dignity than the power to legislate over the seat of the general government, but it is not of greater force, or more binding upon the States or the people. The power to raise and support armies may, and almost always will, operate more expansively, but legislation over and for the District of Columbia may, in the progress of its consequences, reach as far as legislation for military objects, and when it does so, will be of equivalent efficacy.

If Congress had deemed it expedient it might have established this lottery directly, instead of authorizing it by a substitute, and might have afterwards applied the avails (so as to bind the States) to this improvement of the District. Had it done so, who can doubt that the tickets might have been sold in each of the United States? And yet where is the difference in the subtance of the thing, and in common sense, between the two cases?

Where can be the difference whether Congress exercise their power directly themselves, or authorize others to exercise it for them? It is still, in either case, their power and authority which is acting.

It will be admitted by every body, that it is in the nature of a lottery that the tickets must be sold, and that they must be (as

they always are) transferable from hand to hand by sale; and it results, from the interest every citizen of the United States has in that which is well established or created for general purposes, under the authority of Congress, and within the scope of the constitution, that he is entitled to avail himself of what is so established or created. But surely a State law which forbids a citizen to sell or to buy a ticket in a lottery, (well established under the authority of the Union, within the scope of the constitution, and for national purposes,) trespasses upon this right of the citizen, so far as it goes, interferes with the general purposes for which the lottery is established, and changes the qualities of the ticket by impairing that saleable and transferable faculty to which it owes its value, and without which the lottery itself may be wholly defeated, and must be greatly injured and delayed.

It would indeed be a strange anomaly, if what Congress had created, or authorized to be created, in a valid manner, and which entirely derives its capacity of answering the general purposes for which it was so created, from its faculty of being sold and transferred, could be considered and treated by a State as the subject of a criminal traffic; or, in other words, if a citizen could be punished by a State for selling or buying that which Congress had, for the purpose of being bought and sold, sent, or caused to be sent, into the market of the Union, conformably to, and under the sanction of the constitution, and for a national object.

If a lottery ticket has a lawful origin under the constitution of the Union, it is a lawful lottery ticket wherever the power of the Union is acknowledged. The power of the Union, constitutionally exerted, knows no locality within the boundaries of the Union, and can encounter there no geographical impediments. Its march is through the Union, or it is nothing but a name. The States have no existence relatively to the effect of the powers delegated to Congress, save only where their assent or instrumentality is required or permitted by the constitution itself. In every other case the effect of constitutional congressional legislation is commensurate with united America; and State legislation in opposition to it is but a shadow.

Nor is there any danger to be apprehended from allowing to congressional legislation, with regard to the District of Colum

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