
    CONSTITUTIONAL COURT, CHARLESTON,
    1816.
    The State v. Joseph Antonio.
    The State Courts have jurisdiction under the act of assembly of1785, of the offence of counterfeiting foreign coins, made current by that act. By three judges. Nott, J., dissenting.
    On an indictment for counterfeiting, the possession of coining instruments may be given in evidence against the prisoner, to prove the scienter.
    
    Indictment for coining, &c.
    The verdict was, “ guilty of passing the dollar, knowing it to be counterfeit.” The counsel for the prisoner took exception to the jurisdiction of the court to try any offences against the coin ; the jurisdiction thereof being exclusively confined to the court of the United States. The presiding judge, on the hearing, declared his full conviction, that as to the offence of coining, the court had no jurisdiction, and wished to hear further argument as to passing counterfeit coin. The next day, the argument was again urged, and overruled as to both points, and the cause given to the jury.
    During the trial, some instruments calculated to coin money, were offered in evidence, to shew the quo animo with which the coin was passed. This was objected to by the counsel for the prisoner, because it operated as a surprise to give in evidence coining instruments, when, they would under the act, constitute a distinct crime; and had the prisoner been apprised of their being alleged against him, by seeing them charged in the indictment, he might have been prepared to rebut the presumption by opposite proofs. This was overruled.
    It is submitted, in arrest of judgment, that the courts of this State have no jurisdiction of offences against coin, and that the verdict is inconsistent witli the act, uncertain, and no judgment can be given upon it.'
    1. Because since the adoption of the constitution of the United States, the individual States cease to have jurisdiction over the of-fences against the coin, it being exclusively confined to the United States.
    2. Because under the constitution of the United States, the individual States have no current coin ; but the currency of each State is such solely, because it forms a constituent part of the Union ; and an indictment, stating the offence to be against the currency of any individual State, and against the peace and dignity of that State is bad ; for it is also an offence against the United States, and the same act cannot be a violation of two distinct sovereignties.
    3. Because the act under which the prisoner was indicted, was passed prior to the constitution of the United States, and values the currency differently from the United States ; who, since the constitution, have the sole right of regulating the value of foreign coins; of course, an indictment following the act must be a false allegation, to wit, that the coin is current at the value stated in an act of assembly of this State, when the United States have declared it current at a different value.
    4. Because, if under the constitution of the United States, the individual States can have a concurrent jurisdiction with the United States in punishing the passing of counterfeit coin, still the counterfeit must be ascertained by a comparison with the value placed upon coin by the United States, and laws passed previous to such a valuation, are therefore void.
    
      
      '}‘ ®ecause ^le ver<Iict is.so ambiguous, that no judgment can be entered upon it. The indictment alleges, that the prisoner passed a dollar in the likeness and similitude of a Spanish milled dollar ; but ^le Íury have not f°und that fact, but only that the prisoner passed the dollar knowing it to be counterfeit, referring to any dollar, perhaps a rix dollar, or a provincial dollar ; and as no testimony was adduced of any Spanish milled dollar, there remains nothing, by which to ascertain, even by reference, that the jury intended to find the fact in issue.
    6. Because the verdict does not find the prisoner guilty of any offence, for the act of 1785 does not punish with death the passing one of the coins, but is in the plural, and the verdict is in the singular. The act particularly describes the offence, “ utter, or attempt to pass, knowing them to be counterfeit.” And in case the foregoing grounds should be overruled, the prisoner moves for a new trial, because the instruments given in evidence, might have been put into the indictment, being a distinct felony, and should not have been allowed as mere testimony.
    Grimke, for the motion. Attorney General, and Hunt, contra.
    
   Colcock, J.

A due regard to the nature of the federal government, and the principles on which it is formed, will place this case in a clear point of view. .

As to the first ground, the federal government possesses no powers but such as are expressly given to it, or necessarily incident to those given. And the States in the formation of this government, surrendered none of the incidents of sovereignty, except such as are enumerated in the 10th section of the 1st article of the constitution, which they are expressly prohibited from exercising. What is there then to prevent a State from punishing for coining, or passing coin, knowing it to be counterfeit 1 There is no prohibition of the exercise of this jurisdiction in the 10th clause ; and the act of congress on this subject, 2 Gradon’s Dig. p. 95, contains a clause to this effect, “ nothing in this act shall be construed to deprive the individual States of jurisdiction, under the laws of the several States, over offences made punishable by this act.” This is at least a legislative construction of the constitution, and, being made soon after the adoption of the constitution, it may be presumed, was done by some of the very men who framed the constitution itself.

But if a doubt could be entertained upon the subject, we have the exposition of the constitution, by some of the most able of its fra. mers, in a series of papers written in 1788, recommending it to the people, in which will be found the following positions, after stating that the plan of the convention aims only at a partial union or consolidation.

“ The State governments would clearly retain all the rights .of sovereignty which they had before, and which were not by that act exclusively delegated to the United States. This exclusive delegation, or rather alienation of State sovereignty, would only exist in three cases; 1. Where the constitution in express terms granted the exclusive authority to the Union. 2. Where it granted in one instance an authority to the Union, and in another prohibited the States from exercising the like authority; and, lastly, where it granted an authority to the Union, to which a similar authority in the States would be absolutely and totally contradictory and repugnant.”

It is most manifest that this case is not embraced in either of the two first; let us then see if it can be comprehended in the last. Is the exercise of the power to punish for coining or passing counterfeit coin by the individual States, contradictory and repugnant to the exercise of a similar power by the Union ? In my opinion, it certainly is not. But I will examine the reasons urged by the prisoner’s counsel. 1. It is said, there is no instance in the law of a concurrence of jurisdiction in criminal cases. 2. That a man might be twice punished ; and 3. That a difference in the measure of punishment may, and in this instance, does exist.

As to the first, the history of every country of which I have any knowledge, at least, in which I may say the science of law has made any progress, or the population of which is of any extent, will afford instances of it. The country from whence we draw our system of jurisprudence, certainly affords abundant proof of the existence of a concurrent jurisdiction. Our own country, until very lately, offered proofs of its existence in the county courts, which exercised a concurrent jurisdiction with our superior courts ia criminal matters.

As to the second objection, “ a man may be twice tried,” this could not possibly happen : first, because it is the established cemi-tas gentium, and is not unfrequently brought into practice, to discharge one accused of a crime, who has been tried by a court of competent jurisdiction. If this prevails among nations who are strangers to each other, could it fail to be exercised with us who are so intimately bound by political ties ? But a guard yet more sure is to be found in the 7th article of amendments to the federal constitution.

The last objection may be considered as already removed, by shewing that a concurrence of jurisdiction may exist in criminal cases, for wherever this does exist, there'may, and very frequently will be a difference in the punishment. .

, , But I go further. When the nature of our compact, and the extent of our country are considered, it may happen that the commission of a crime may be more injurious to the interest of the community in one State, than in another ; and hence may arise a legitimate ground for a more severe punishment. I would not be understood to mean ‘that that is the case here, but only as intending to show that a difference'of punishment is no argument against the exercise of a concurrent jurisdiction.

As to the second ground, it is only necessary to remark, that whatever is the current coin of the United States, becomes the current coin of the individual State. A Spanish milled dollar is a current coin of the United States.

The third ground states that a different value has been fixed by the general government. The indictment took notice of a difference in denomination, but there is in fact no difference in value. The dollar is still the same ; and if there had been a difference, it was incumbent on the prisoner to show it, and to prove that the dollar made current by congress was different from the Spanish milled dollar. But there was not even an attempt to do this ; and this embraces all that is necessary to be said on the fourth ground.

As.to the fifth ground, it is certainly a perversion of language, to say the definite article the may refer to any dollars. This objection might have been made, if the jury had said a dollar. But when the record is read, it proves that the prisoner was indicted for passing a Spanish milled dollar, and the verdict says he was guilty of passing the dollar, that is, the dollar charged in the indictment.

' The sixth ground is also founded on the misconstruction of very plain language. • The act, after enumerating the various coins, says, “ any person who shall counterfeit, or utter or attempt, to pass, knowing them to be counterfeit, any of the aforesaid gold or silver coins,” &c., that is, any one of them. • I.t appears to me, that the construction contended for by the prisoner, would rather amount to this, that a person must pass one or more of each and every different kind enumerated in (he act, rather than, two of any partieu-lar kind, to complete the crime. The word any is synonymous with either, as will appear by the authority of all dictionary makers, and by grammarians is defined to be .an adjective, meaning one or more, as the case may be. It must at any rate be allowed, that the word must be taken in that meaning which the legislature have most clearly attached to it. I confess t feel that I am saying more on this ground than it merits.

The last ground merits some attention. When the criminal law writers say, that you shall not give in evidence the stealing of one article, upon an indictment for stealing another, the reason is obvious ; because the articles being separate and distinct in their nature, and the subject of different felonies, the party, although innocent, might be convicted; for he would not be prepared to defend himself against the larceny of any other article, than that specified in the indictment. The rule' of law in larceny is, that if an article which has been stolen, be found in the possession of one who will not, or cannot, account for the possession, that he shall be adjudged to be the thief. But it is contradictory to common sense, as well as common justice, to apply the rule where a man had not had an opportunity of accounting for the possession. But when a man is charged with coining and passing counterfeit coin, can there, be a more direct mode of proving his guilt, than by producing the instruments with which the coin-was made? Would it operate as a surprise? Surely the connexion between the offence and the instrument is such, that the accused would naturally be prepared to account for the possession of the latter, when he came prepared to defend himself against the former. Upon the whole, I am against the motion for a new trial, and in arrest of judgment.

Gkimke,'J.

The two general questions in this case are, 1. Whether the power of trying and punishing persons who counterfeit the current coin of the United States, is vested solely in the Congress of the United States ; and 2. Whether the State courts are not likewise deprived of the power of punishing persons passing counterfeit money, knowing it to be counterfeit.

With respect to the first point, there can be no doubt, that under the 8th section of the first article of the United States constitution, the individual States gave up to the Congress of the United States this power; for it is there enacted, that the Congress shall have power to coin money, and to regulate the value thereof, and of foreign coin, and to provide for the punishment of counterfeiting the current coin of the United States; and in the tenth section of the same article, it is declared, that no State shall coin money. By these sections, it appears, that the power of coining is not only vested in Congress,- but that the individual States are divested of it.

With respect to the second point, it does not appear that the power of punishing persons for passing counterfeit coin, knowing it to be counterfeit, was either expressly given to the Congress of the United States, or divested out of the individual States. Now section of the amendments to the constitution, as agreed to by the several States, and which has now become a component part 0p (|ie constitution, declares, that tlie enumeration in the constitution of certain rights, shall not be construed to deny or disparage others retained by the people j and in the 10th section of the same, it is further provided, that the powers not delegated to the United States by the constitution, nor prohibited by it-to the State, are reserved to the States, respectively, or to the people. When we examine the powers conceded by the individual States, we find no enumeration of this power given to Congress, and when we review the powers denied to the individual States, we discover no mention whatever of their being divested of this power. The individual States were in possession of this power before the ratification of the constitution of the United States ; and if there is no express declaration in that instrument, which deprives them of it, they must still retain it, unless they should be divested thereof by construction, or implication.

Upon this head it has been argued, 1. That a man tried by the courts of this State for passing counterfeit coin, would be punished with death; whereas, the act of Congress attaches to this crime only fine and imprisonment. But this argument can be of no weight, as in the individual States, a greater variety of punishments may be, and probably are inflicted, for this crime ; and indeed it is well known, that even in this State, the punishment of offenders, when convicted under the common law, or the statute law, in some cases, is essentially different. The difference, therefore, of the punishment, cart, in my opinion, be of no avail in the present motion.

It has been further argued, that Congress having the sole power of regulating the value of coin made current in the United States, that part of the act of assembly, Grimke’s Coll. 314, which declares the weight, and regulates the value of the coins therein enumerated, must be considered as repealed by the constitutional provision on that head ; that then it follows as a matter of course, that the passing of a counterfeit dollar not regulated in its value according to the law of Congress, is not indictable under our act of the assembly. But the regulating of the weight and value of good coin, is very different from the passing of bad and counterfeit coin. There can be no doubt, that from the regulation of the value of the coin by Congress, that all the States, and every individual in them, is bound by such valuation and such restriction. It is the general law of the land, and must be observed by all, for it is founded on powers given to Congress, and renounced by the States. It cannot, however, be concluded thence, that because this exclusive right of regulating the value of coin is vested in Congress, that therefore they have the sole right of punishing the crime of passing counterfeit coin.

But the act of Congress of the 21st April, 1806, 2 Graydon, 95, contemplates a case of this kind, and that whenever it does happen, that a State shall have previously provided by law, for this offence of passing counterfeit money, it shall not be deprived of the power of punishing it; for, in the fourth section, it declares that nothing in that act contained, shall be construed to deprive the courts of the individual States of jurisdiction under the laws of the several States, over offences made punishable by this act. Here is an explicit acknowledgment, on the part of the United States, that the individual States were previously possessed of this power; that it was not abandoned by the individual States, on the ratification of the constitution ; and that the courts of the United States, to whom this act gives a concurrent jurisdiction, whether constitutionally or not, is not for me to say, with the State courts, shall not construe this power given to them, so as to deprive the State courts of their right of jurisdiction in a case of this kind, viz., the'passing of foreign counterfeit coin.

I will allow, that this State court has no jurisdiction whatever, over money coined at the mint of the United States, nor any that is not particularly enumerated in our act of assembly ; but to coun. terfeit any species of coin which is brought from foreign nations, and which has been declared current by act of assembly, is an of-fence against that act of assembly, and punishable by this court.

Another argument of great importance is, that an offender might be twice tried for the same offence; once under the act of Congress, and again under the State act. But if the courts of the United States have a concurrent jurisdiction over this crime, with this court, then must either court allow of the plea of autrefois acquit, which will be a good bar'to a second prosecution, because a determination in a court having competent jurisdiction, must be final and conclusive on all courts of concurrent jurisdiction. 1 Leach, 160.

I do not however mean to allow, that the courts of the United States have such concurrent jurisdiction with this court; but as I have said before, that is not a point for me to determine. I am only called on to decide, whether the prisoner at the bar is amenable to our courts, for the offence of which he has been found guilty.

Jt has likewise been argued, that the verdict is so ambiguous, that no judgment could be entered up thereon. The indictment charged the prisoner with passing a dollar in the likeness and similitude of a Spanish milled dollar ; the dollar was produced in evidence, and jury have found him guilty of passing the dollar, knowing it to be counterfeit. How it is possible, in a case of this kind, and with such testimony to give a more pointed, definite, legal verdict, I cannot divine.

As to the objection, that the act of assembly speaks of coins, in the plural, and here the party is convicted of passing only one piece, and therefore the conviction is wrong, I think the act of assembly extends to the passing of one piece as well as many, for the words are, “ any person who shall utter, knowing them to be counterfeit, any of the aforesaid coins.” Now the word any means any one, any two, or any more; for, if this was not the construction, then one who was indicted for passing two pieces, might raise the same objection, and say, that the act means more than two, or that it meant all of them. My opinion on this point, I find confirmed by a similar case in 1 Leach, p. 1, Hassel’s case. Upon the whole, my judgment is, that the indictment is properly framed upon our act of assembly ; that that act is of force quoad the punishment of persons passing conterfeiting coin mentioned in that'act; that the verdict is full, precise, and definite; and that, therefore, the motion must be discharged.

Bay, J.

The prisoner was indicted under the act of 1783, passed by the legislature of this State, against counterfeiting the gold and silver coins made to pass current within this State. Among those coins the Spanish milled dollar is mentioned ; and, indeed, is made the standard, by which the relative value of all the other coins are regulated and ascertained.

The indictment, as usual in such cases, contained two counts : 1. One for counterfeiting. 2. The other for passing a Spanish milled dollar, knowing it to be counterfeit. The second clause of the abovementioned act, declares, “ that any person who shall counterfeit, or utter, or attempt to pass, knowing them to be counterfeit, any of the aforesaid gold and silver coins, or keep in his, or her possession, any stamp, dye, or mould, for coining the same, upon being duly convicted thereof, shall be adjudged guilty of felony, and suffer death without benefit of clergy.”

The attorney general did not attempt to press the evidence against the prisoner, under the first count for coining. Under the second count, the evidence was very clear and conclusive, as to the passing of the counterfeit dollar, stated in the indictment, by the prisoner; and, as to the baseness of the metal of which it was composed, the scienter, or knowledge of this baseness of the metal, was inferred from sundry suspicious circumstances,. 'proved on the trial. Such as some other base money being passed at or about the market, and other places in its vicinity, and supposed to be by the prisoner and one of his associates, and particularly by a box found in-his trunks, after he was apprehended, containing sundry instruments, which had the appearance of coining instruments, and also sundry materials for that purpose.

Upon the trial, an objection was made to the offering these instruments, &c., found in prisoner’s trunk, as evidence against him ; as it was alleged that this fact of his having instruments in his possession for coining, of itself formed a distinct and separate felony by the act, for which he might be tried and punished. So that one felonious act, ought not to be given in evidence to support another. After hearing arguments in favor of the objection, the court admit, ted, that one felony could not be given in evidence to support another ; as, for instance, the stealing of a horse, could not be given in evidence to prove a man guilty of stealing a negro, because they are independent and distinct offences; both susceptible of external proof. But when a scienter was to be proved, it must be drawn from circumstauces. This species of evidence lies deep in the human breast, beyond the reach of mortal ken. To find out this' knowledge, therefore, is always a difficult research, and it must be drawn from circumstances, indicative of the operations of the mind; and, at last, a reasonable presumption is all that can be obtained, or acquired; all the legislators and lawyers on earth, can go no further. It was, therefore, under these impressions, that the Circuit Court permitted these forging instruments, found in prisoner’s possession, to be given in evidence to the jury; not, as has been stated, to pvove the offence of passing the counterfeit money, but as a circumstance to show that he must have had a knowledge of the baseness of the metal, of which the false dollar was composed.

And unless circumstances of this kind, or those of a similar nature, were permitted to be given in evidence to a jury, all that class of cases or offences where a knowledge of the falsehood, of any kind or nature whatever, forms or constitutes the principal ingredient of an offence, must fall to the ground, and the means of pun. ishment must become useless and inoperative.

It is also true, that on the trial, an objection was taken to the jurisdiction of a' State Court to try this offence under the act of 1783. It was contended, that the constitution of the United States and the acts of Congress made in pursuance thereof, had virtually repealed lhis uct, and that this offence, if any had been committed, belonged exclusively to the Courts of the United States, Both these objections were overruled ; the first on the ground, that the, State of South Carolina in the year 1783, when this act was passed, being a sovereign and independent State, there was nothing to circumscribe her powers and jurisdiction, or to limit her authority to pass the law in question, which was then soon after the revolutionary war, justified by the wisest and soundest policy, in order to prevent the introduction and circulation of base and false metal, under the appearance and similitude of foreign coins, which, at that period, abounded in the State. 2. On the ground that Congress being a delegated body, from the different States, possessed no original jurisdiction. Every power that body possessed was derived from the States, and nothing was within its authority, but what was expressly given by the constitution that gave it heing. That this constitution might well be compared to a special letter of attorney from principals to agents, to do and perform certain specified acts, beyond which their powers were at an end. That these principals being conceded, and indeed they could not be denied, there was not any thing in the constitution, which went directly or indirectly to repeal the act in question, or to prevent the State of South Carolina from punishing the offence of passing counterfeit money, stated in the second count in the indictment.

The case then went to the jury, and they found the prisoner guilty under the second count in the indictment, “of passing the dollar knowing it to be a counterfeit.” • The foregoing is a concise history of the case as it passed on the trial. From this verdict, the counsel for the prisoner appealed, on a number of grounds.

As to the first ground I remain of the same opinion as at the trial. I cannot concede that the power of punishing this offence is taken away from the State ; and even doubt whether the Courts of the United States have so much as a concurrent jurisdiction. It is true the consitution of the United States, art. , provides for counterfeiting the current coin of the United States ; but by the terms current coin,” which are coupled together with “ securities” in the same sentence, is clearly to be understood the money coined at the mint of the United States, and which is very emphatically called the current coin of the United States. It was to guard and protect these, and these only, from being falsified and debased, that this power of providing a punishment for counterfeiting was given to Congress. Not a sentence or word is said about providing a pun. ishment for passing counterfeit foreign.coins, in this part of the section. The current coins, therein mentioned, must be taken in contradistinction to the foreign coins mentioned in the preceding sentence, whose value was only to be regulated by Congress; but nothing is said about counterfeiting them, or about providing for the punishment of passing them, knowing them to be counterfeit.

If this construction is correct, and 1 trust it will be found, upon a close examination, to be a true one, then it will result as a necessary consequence, that no power whatever is given by the constitution to Congress to punish for counterfeiting foreign coins, or passing them, knowing them to be counterfeit, within the United States. That power remains, and must of necessity remain with the individual States, who still retain all their original powers of independent sovereignties, not specially delegated to Congress. The offence of passing counterfeit foreign coins, is an evil of great magnitude, for millions of base dollars might be brought into the State and circulated, and if the State had not the power of punishing the offence, the evil must go unredressed. This offence therefore must be punished by the State laws, or go off with impunity : and so sensible was Congress of the necessity of referring this offence to the State Courts throughout the Union, that in tbeir act of 1806, when providing for the punishment of passing the current coin of the United States, knowing it to be counterfeit, they inserted a provision that whenever it should happen that any State should have previously provided by law for this offence of passing counterfeit money, it should not be deprived of the power of punishing this offence. And that nothing, in the said act contained, should be so construed as to deprive the State Courts of jurisdiction under the laws of the several States. 2 Graydon Digest, 95.

Here, then, is a saving and a reservation of the right of the State Courts to punish this offence under State laws, if any such salvo or reservation was necessary. But in truth, this right was never given up by the States. So that this retrocession, if I may be allowed the expression, on the part of Congress, was an. unnecessary act. It serves however to shew how very doubtful that body was, as to its exclusive power and jurisdiction over this offence.

As to the second general ground, taken on the argument in the Court of Appeals, with respect to the constructive surrender of this right or power to the United States; the advocates for exclusive jurisdiction on the part of the United States, foreseeing that there was no express cession of this right in the constitution, have resorted to construction, and have contended, that the power of punishing this offence is implied in the terms of the constitution. I have already observed that Congress had no original jurisdiction, and possesses now none but what is given to it by the States. 1 ’ o j

The twelfth article of the amendments declares, “ that all powers not delegated to the United States by the constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people.” Here, then, is an express reservation of all powers not expressly given, which in my opinion cuts off forever all constructive or implied powers. And, indeed, it is a principle which governs all corporate bodies, that nothing shall ever be presumed to be within their jurisdiction, but what is expressly given.

The conclusion I draw from all the foregoing premises under this head is, that as the constitution has not expressly given to Congress the power of punishing the passing of foreign coins, knowing them to be counterfeit, that body has no constructive or implied power to do so; and that as South Carolina, being a sovereign and independent State, had a right and power to punish this offence and to pass any law for that purpose ; and, by passing the act under consideration, has done so ; there is nothing in the constitution of the United States which repeals it. Finally, that the act as to that particular offence remains in full force and operation.

3. As to the admission of the coining instruments, and materials found in prisoner’s possession, to prove the scienter, or knowledge of the counterfeit, or baseness of the metal, I have nothing to add to the opinion I delivered to the jury on the trial, and which is mentioned in a former part of this opinion, further than that a majority of the judges of this State concurred with me in opinion, at Columbia, on this' point, in the ease of Odell, who was tried at Pendleton, October, 1815. On all the grounds, I am against the motion in arrest of judgment, and also against the motion for a new trial.

Nott, J.,

dissented. All the grounds taken in arrest of judgment, in this case, may be reduced to two : 1. Whether under that section of the constitution of the United States, which gives to Congress the power “ to coin money, to regulate the value thereof, and of foreign coin, and to provide for the punishment of counterfeiting the securities and current coin of the United State, art. 1, federal constitution, sec. 8,” is also given the power to provide for the punishment of passing any of the current coin thereof, knowing it to be counterfeit. 2. If it is, whether the States by delegating such power to Congress, have constructively parted with all the powers which they had before over the subject, and vested it exclusively in the general government.

Before I proceed to a particular examination of those questions, I would premise that the United States must be held to possess all the attributes of sovereignty in the most ample degree, over all matters expressly delegated to them by the constitution, as well as over all such as are necessary to carry those so delegated into effect; and among those the power to carry their own laws into operation by providing proper punishment for them, is one. That cannot be considered a sovereign independent State which depends on another to carry its laws into execution. A want of this power was the great objection to the old confederation, and to remedy the evil was a great object of the new one. This would be very badly effected by merely granting such power to the general government, and leaving the individual States the power to arrest it, by interposing their own laws. The constitution, in my opinion, admits of no such construction. The judicial power of the United States, is not only constructively, but expressly made commensurate with the legislative. It is made to extend “to all cases arising under the laws of the United States.” The words are, “ The judicial power of the United States shall extend to all cases in law and equity, arising under this constitution, the laws of the United States, and treaties made, or which shall be made under their authority.” This is a case “ arising under a law of the United States,” for by the act of Congress, it is made highly penal to counterfeit the current coin of the United States, or to pass it, knowing it to be counterfeit. Unless, therefore, that act of Congress is unconstitutional, this is one of the cases expressly and exclusively delegated to the courts of the United States, for if their power extends to all the cases of this description, there can be none to which it does not extend.

It is no answer to say it is a case also arising under a law of the State, for the constitution expressly declares, that “ this constitution, and the laws of the United States, which shall be made in pursuance thereof, shall be the supreme law of the land, and the judges in every State shall be bound thereby, any thing in the constitution, or laws of any Stato, to the contrary notwithstanding.” Any act of a State, therefore, repugnant to a constitutional act of Congress immediately becomes a dead letter. This construction may also be inferred from the nature of the other cases enumerated in the same section of the constitution, “allcases affecting ambassadors, other, public ministers, and consuls, and all cases of admiralty and maritime jurisdiction.” I believe it is not pretended that the jurisdiction of the State courts extends to cases of this description ; yet the same construction that would extend it to “ cases arising under a law of the United States,” would embaace those also.

This construction is further strengthened by a view of the class of cases which immediately follows in the same section of the constitution, “ to controversies to which the United States shall be a party ; to controversies between two or more States ; between citizens of different States,” &c. In these cases, and those connected with them, the word “ all,” is dropped; thereby leaving to the State courts jurisdiction concurrent with the courts of the United States. If, then, this is one of the cases over which the general government has exclusive jurisdiction, the State law becomes inoperative ; for a State cannot give to itself jurisdiction by legisla, ting on a subject exclusively assigned to the United States.

This brings us to the inquiry, whether the act of Congress, providing for the punishment of passing counterfeit money, knowing it to be counterfeit, is constitutional; the consideration of which will be involved in the question first above made in arrest of judgment.

That Congress have power to coin money, to regulate the value thereof, and of foreign coin, and to provide for the punishment of counterfeiting it, is admitted. It is also admitted, that they have the power to make all laws which shall be necessary for carrying into execution the foregoing powers. Is it necessary, then, to enable Congress to carry into execution the power to coin money, to regulate the value thereof, and to provide for the punishment of counterfeiting it, that they should have power to punish for passing it, knowing it to be counterfeit ? If it is, then that power is expressly delegated to them. Or, to put the question in another form, is it necessary to protect the current coin of the United States, by imposing penalties on those who shall pass it, knowing it to be counterfeit 1 If it is, then to afford it that protection, is one of the powers expressly delegated to the general government. Indeed, to use the words of an eminent commentator on the constitution, (1 Fed. 299,) “ Had that instrument been silent on this head, there can be no doubt that all the particular powers would have re-suited to the general government, by unavoidable implication. No axiom is more clearly established in law, or in reason, than that whenever the end is required, the means are authorised ; whenever general power to do a thing is given, every necessary power to do it is included ; and that such protection is necessary to the current coin of the United States, no farther .proof can be required, than that Congress, and all the States in the Union, as long as they had power over the subject, have furnished it. To have given to Congress the power to punish counterfeiters of the coin, while those who circulated it were to go unpunished, would have furnished it but little security ; and to have left this important power to the courtesy of the States, would have been sliding back into the same situation which we were in under the old confederacy, and defeating the principal object for which the new one was formed.

Being of opinion, therefore, that Congress have not only the power of punishing for counterfeiting the coin of the United States, but also for passing it, knowing it to be counterfeit, it only remains to examine the second question, to wit: whether the States, by delegating such power to Congress, have parted with all power over the subject themselves.

It is a matter of no small difficulty, to mark out with precision, the line of jurisdiction between the United States and the individual-States, and perhaps we shall not meet with a more correct view of the subject, than is taken by the same eminent writer before quoted. He reduces the exclusive delegation of power to the United States, or the alienation of State sovereignty, to three cases : 1. Where the constitution in express terms grants exclusive authority to the Union: 2. Where it grants in one instance an authority to the Union, and in another prohibits the States from exercising like authority : and 3. Where it grants an authority to the Union, to which a similar authority in the States would be absolutely and totally con. tradictory and repugnant. Under this last case, he instances that clause, which declares that Congress shall have the power “ to establish an uniform rule of naturalization throughout the United States.” This, observes the writer, must necessarily be exclusive, because if each State had the power to prescribe a distinct rule, there could be no uniformity. Now if the United States have the power to “ regulate the value of money and of foreign coin, and to provide for the punishment of .counterfeiting the current coin of the United States, they must have the exclusive jurisdiction ; other, wise, two governments equally sovereign and independent, would have jurisdiction over the same subject; and the value of the coin, and the punishment for counterfeiting, might be different in every State. The exercise of such authority by the States,, would be “ absolutely and totally, contradictory and repugnant” to the exercise of it by the United States. Indeed, concurrent jurisdiction in criminal cases, between independent governments, is incompatible with sovereignty; and the United States and the individual States are as sovereign, and independent of each other, in all cases of a criminal nature within their respective jurisdictions, as the States themselves are.

We need only look to the consequences of a contrary doctrine, to be convinced of this truth. The United States punish the counterfeiting, or passing of counterfeit money, with fine and imprisonment; the State of South Carolina punishes the same offence with death. If a man, put on his trial for such an offence, should plead in bar a conviction or acquittal in a court of the United States, would such a plea be sustained by our courts ? Or, let the punishment be reversed, and would such a plea be sustained in a court of the United States ? It is impossible not to see, that it would not, and ought not. Neither the courts of the United States, nor of the individual States, will hold an acquittal or conviction by one, a bar to a trial by the other. Each must, and will insist upon the right of enforcing its own penal laws, and its jurisdiction cannot be usurped by the other. The right to punish, says an eminent writer, “arises from the right of self defence.” A State commonly punishes offences against its own laws, and an offence against the laws of the United States, is no offence against the laws, or against the peace and'dignity” of the State of South Carolina. One, therefore, must have the whole jurisdiction, or a person may be twice punished for the same act; first fined and imprisoned by the courts of the United States, and then hanged by the State, which is not only contrary to the express letter of the constitution, but contrary to the eternal and unerring principles of justice.

The case put of concurrent jurisdiction of courts in the same State, is not analogous. There the offence is against the same laws, and against the same sovereignty ; the crime and punishment are the same, and the law is satisfied with a trial in either tribunal having jurisdiction.

The rule then must be a correct one, that where any power is delegated to the United States, and the exercise of such power by an individual State is incompatible with such delegation, it must exclusively belong to the general government. The advocates for a concurrent jurisdiction derive no support from the amendment of the constitution which has been relied on. It does not say that the powers not expressly delegated, &c., shall be reserved; but that the enumeration of certain rights shall not be construed to deny or disparage others retained by the people; and whether by express or necessary implication, the effect is the same.

It is further argued that prohibiting the States from making any thing but gold and silver a tender in the payment of debts, necessarily implies a power in them to make those so. In answer to which, after what has been already said, I will only observe that I am not disposed to admit such an inference. Admit it; however, to be correct, it only proves that a Slate may make certain foreign coins current withiA their respective jurisdictions, which- are not made.so by Congress. But that introduces no conflict of jurisdiction. For the power of Congress to punish extends only to the current coin of the United States. Until, therefore, Congress have made a foreign coin current in the United States, they cannot punish for counterfeiting it. But that was not the ground on which this case was decided in the court below, neither has it been made a ground of argument here. It is not contended on the part of the State that the money passed by the prisoner was not the current coin of the United States.

I cannot feel the force of the distinction taken between the coin made in the United States, and the foreign coin made current here. The words of the constitution are, “ current coin,” which I understand to mean as well foreign coin made current by act of Congress, as coin made at the mint of the United States. The conclusion, therefore, that I have come to is, that the power of punishing the counterfeiting of foreign coin made current in the United States by act of Congress, or passing the same, knowing it to be counterfeit, belongs exclusively to the general government, and the trial of persons for those offences, belongs' exclusively to the Courts of the United States. The administration of criminal justice is not a privilege whicli we ought to be anxious to retain, though a painful duty which we are sometimes bound to perform.

I am of opinion, the judgment ought to be arrested for want of jurisdiction. But as a majority of the court differ from me on this point, it becomes necessary to give an opinion also on the ground of a new trial. The first ground is, that as our act makes it a distinct capital crime to keep implements for counterfeiting money in one’s possession, such evidence ought not to have been admitted in the court b.elow on an indictment for merely passing counterfeit money. Having given an opinion on this point in another case, I do not feel under any necessity to go fully into the reasons for the opinion I now give. I take the rule of law to be, that one distinct offence shall not be given in evidence to convict a person of another, unless the proof of one goes directly to prove the other. Thus, for instance, proof that the defendant made the identical dollar in question, might have been- proper, because it would have proved unequivocally, that he knew it to be counterfeit. But proving that he had implements for coining in his possession, did not prove that he knew this dollar to be counterfeit, any more than proving that a man stole a horse, for which he was not indicted, would be proof that he stole another for which he was indicted; Unless, indeed, there was some proof, by comparison or otherwise, that these were the moulds in which the dollar passed by the defendant was cast. Rex v. Ball, 1 Camp. 324. I am in favor of the motion in arrest of judgment, as well as for a new trial.  