Cohens v. Virginia

• Court: U.S. Supreme Court
• Writing for the Court: MARSHALL
• Citation: Cohens v. Virginia, 19 U.S. 264, 5 L.Ed. 257, 6 Wheat. 264 (1821)
• Decision Date: 03 March 1821
• Parties: COHENS v. VIRGINIA

19 U.S. 264

5 L.Ed. 257

6 Wheat. 264

COHENS v. VIRGINIA.

March 3, 1821

THIS was a writ of error to the Quarterly Session Court for the borough of Norfolk, in the State of Virginia, under the 25th section of the judiciary act of 1789, c. 20. it being the highest Court of law or equity of that State having jurisdiction of the case.

Pleas at the Court House of Norfolk borough, before the Mayor, Recorder, and Aldermen of the said borough, on Saturday, the second day of September, one thousand eight hundred and twenty, and in the forty-fifth year of the Commonwealth.

Be it remembered, that heretofore, to wit: At a Quarterly Session Court, held the twenty-sixth day of June, one thousand eight hundred and twenty, the grand jury, duly summoned and impaneled for the said borough of Norfolk, and sworn and charged according to law, made a presentment in these words:

We present P. J. and M. J. Cohen, for vending and selling two halves and four quarter lottery tickets of the National Lottery, to be drawn at Washington, to William H. Jennings, at their office at the corner of Maxwell's wharf, contrary to the act thus made and provided in that case, since January, 1820. On the information of William H. Jennings.

Whereupon the regular process of law was awarded against the said defendants, to answer the said presentment, returnable to the next succeeding term, which was duly returned by the Sergeant of the borough of Norfolk—'Executed.'

And at another Quarterly Session Court, held for the said borough of Norfolk, the twenty-ninth day of August, one thousand eight hundred and twenty, came, as well the attorney prosecuting for the Commonwealth, in this Court, as the defendants, by their attorney, and on the motion of the said attorney, leave is given by the Court to file an information against the defendants on the presentment aforesaid, which was accordingly filed, and is in these words:

Norfolk borough, to wit: Be it remembered, that James Nimmo, attorney for the Commonwealth of Virginia, in the Court of the said borough of Norfolk, cometh into Court, in his proper person, and with leave of the Court, giveth the said Court to understand and be informed, that by an act of the General Assembly of the said Commonwealth of Virginia, entitled, 'An act to reduce into one, the several acts, and parts of acts, to prevent unlawful gaming.' It is, among other things, enacted and declared, that no person or persons shall buy, or sell, within the said Commonwealth, any lottery, or part or share of a lottery ticket, except in such lottery or lotteries as may be authorized by the laws thereof: and the said James Nimmo, as attorney aforesaid, further giveth the Court to understand and be informed, that P. J. and M. J. Cohen, traders and partners, late of the parish of Elizabeth River, and

borough of Norfolk aforesaid, being evil disposed persons, and totally regardless of the laws and statutes of the said Commonwealth, since the first day of January, in the year of our Lord one thousand eight hundred and twenty, that is to say, on the first day of June, in that year, and within the said Commonwealth of Virginia, to wit, at the parish of Elizabeth River, in the said borough of Norfolk, and within the jurisdiction of this Court, did then and there unlawfully vend, sell, and deliver to a certain William H. Jennings, two half lottery tickets, and four quarter lottery tickets, of the National Lottery, to be drawn in the City of Washington, that being a lottery not authorized by the laws of this Commonwealth, to the evil example of all other persons, in the like case offending, and against the form of the act of the General Assembly, in that case made and provided.

JAMES NIMMO, for the Commonwealth.

And at this same Quarterly Session Court, continued by adjournment, and held for the said borough of Norfolk, the second day of September, eighteen hundred and twenty, came, as well the attorney prosecuting for the Commonwealth, in this Court, as the defendants, by their attorney, and the said defendants, for plea, say, that they are not guilty in manner and form, as in the information against them is alleged, and of this they put themselves upon the courtry, and the attorney for the Commonwealth doth the same; whereupon a case was agreed by them to be argued in lieu of a special verdict, and is in these words:

Commonwealth against Cohens—case agreed.

In this case, the following statement is admitted and agreed by the parties in lieu of a special verdict: that the defendants, on the first day of June, in the year of our Lord eighteen hundred and twenty, within the borough of Norfolk, in the Commonwealth of Virginia, sold to William H. Jennings a lottery ticket, in the lottery called, and denominated, the National Lottery, to be drawn in the City of Washington, within the District of Columbia.

That the General Assembly of the State of Virginia enacted a statute, or act of Assembly, which went into operation on the first day of January, in the year of our Lord 1820, and which is still unrepealed, in the words following.

No person, in order to raise money for himself or another, shall, publicly or privately, put up a lottery to be drawn or adventured for, or any prize or thing to be raffled or played for: And whosoever shall offend herein, shall forfeit the whole sum of money proposed to be raised by such lottery, raffling or playing, to be recovered by action of debt, in the name of any one who shall sue for the same, or by indictment or information in the name of the commonwealth, in either case, for the use and benefit of the literary fund. Nor shall any person or persons buy or sell, within this Commonwealth, any lottery ticket, or part or share of a lottery ticket, except in such lottery or lotteries as may be authorized by the laws thereof; and any person or persons offending herein, shall forfeit and pay, for every such offence, the sum of one hundred dollars, to be recovered and appropriated in manner last aforesaid.

That the Congress of the United States enacted a statute on the third day of May, in the year of our Lord 1802, entitled, An Act, &c. in the words and figures following:

An Act to incorporate the inhabitants of the City of Washington, in the District of Columbia.

Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That the inhabitants of the City of Washington be constituted a body politic and corporate, by the name of a Mayor and Council of the City of Washington, and by their corporate name, may sue and be sued, implead and be impleaded, grant, receive, and do all other acts as natural persons, and may purchase and hold real, personal and mixed property, or dispose of the same for the benefit of the said city; and may have and use a city seal, which may be altered at pleasure. The City of Washington shall be divided into three divisions or wards, as now divided by the Levy Court for the county, for the purposes of assessment; but the number may be increased hereafter, as in the wisdom of the City Council shall seem most conducive to the general interest and convenience.

Sec. 2. And be it further enacted, That the Council of the City of Washington shall consist of twelve members, residents of the city, and upwards of twenty-five years of age, to be divided into two chambers; the first chamber to consist of seven members, and the second chamber of five members; the second chamber to be chosen from the whole number of councillors, elected by their joint ballot. The City Council to be elected annually by ballot, in a general ticket, by the free white male inhabitants of full age, who have resided twelve months in the city, and paid taxes therein the year preceding the elections being held: the justices of the county of Washington, resident in the city, or any three of them, to preside as judges of election, with such associates as the council may from time to time appoint.

Sec. 3. And be it further enacted, That the first election of members of the City Council, shall be held on the first Monday in June next, and in every year afterwards, at such place in each ward as the judges of the election may prescribe.

Sec. 4. And be it further enacted, That the polls shall be kept open from eight o'clock in the morning, till seven o'clock in the evening, and no longer, for the reception of ballots. On the closing of the poll, the judges shall close and seal their ballot boxes, and meet on the day following, in the presence of the Marshal of the District, on the first election, and the council afterwards, when the seals shall be broken, and the votes counted: within three days after such election, they shall give notice to the persons having the greatest number of legal votes, that they are duly elected, and shall make their return to the Mayor of the city.

Sec. 5. And be it. further enacted, That the Mayor of the city shall be appointed annually by the President of the United States; he must be a citizen of the United States, and a resident of the city prior to his appointment.

Sec. 6. And be it further enacted, That the City Council shall hold their sessions in the City Hall, or until such building is erected, in such place as the Mayor may provide for that purpose, on the second Monday in June, in each year; but the Mayor may convene them oftener, if the public good require their deliberations; three fourths of the members of each Council, may be a quorum to do business, but a smaller number may adjourn from day to day: they may compel the attendance of absent members in such manner, and under such penalties, as they may, by ordinance, provide: they shall appoint their respective Presidents, who shall preside during their sessions, and shall vote on all questions where there is an equal division: they shall settle their rules of proceedings, appoint their own officers, regulate their respective fees, and remove them at pleasure: they shall judge of...