The power conferred upon Congress by the fifth and sixth clauses
of the eighth section of the first article of the Constitution of
the United States,
viz., "1 To coin money, regulate the
value thereof, and of foreign coin, and fix the standard of weights
and measures "; "To provide for the punishment of counterfeiting
the securities and current coin of the United States" does not
prevent a state from passing a law to punish the offense of
circulating counterfeit coin of the United States.
Page 46 U. S. 411
The two offenses of counterfeiting the coin and passing
counterfeit money are essentially different in their characters.
The former is an offense directly against the government, by which
individuals may be affected; the latter is a private wrong, by
which the government may be remotely, if it will in any degree, be
reached.
The prohibitions contained in the amendments to the Constitution
were intended to be restrictions upon the federal government, and
not upon the authority of the states.
This was an indictment in the state court against Malinda Fox
for
"passing and uttering a certain piece of false, base, and
counterfeit coin, forged and counterfeited to the likeness and
similitude of the good and legal silver coin currently passing in
the State of Ohio, called a dollar."
Being convicted, the case was taken by her upon writ of error to
the court in bank of the state, its highest judicial tribunal, and
at the December term, 1842, of that court the judgment of the
common pleas was affirmed.
From this decision of the court in bank the plaintiff in error
brought the case to this Court, and claimed a reversal of the
judgment on the ground that the courts of that state had no
jurisdiction of the offense charged in the indictment, but that the
jurisdiction belongs exclusively to the courts of the United
States.
Page 46 U. S. 432
MR. JUSTICE DANIEL delivered the opinion of the Court.
This case comes before us on a writ of error to the Supreme
Court of the State of Ohio, by whose judgment was affirmed the
judgment of the Court of Common Pleas for the County of Morgan in
that state, convicting the plaintiff of passing, with fraudulent
intent, a base and counterfeit coin in the similitude of a good and
legal silver dollar, and sentencing her for that offense to
imprisonment and labor in the state penitentiary for three
years.
The prosecution against the plaintiff occurred in virtue of a
statute of Ohio of March 7, 1835, and the particular clause on
which the indictment was founded is in the following language,
viz.:
"That if any person shall counterfeit any of the coins of gold,
silver, or copper currently passing in this state, or shall alter
or put off counterfeit coin or coins, knowing them to be such, . .
. every person so offending shall be deemed guilty of a
misdemeanor, and upon conviction thereof shall be imprisoned in the
penitentiary and kept at hard labor not more than fifteen nor less
than three years."
As has been already stated, the plaintiff was convicted of the
offense described in the statute, her sentence was affirmed by the
supreme court of the state, and, with the view of testing the
validity of the sentence, a writ of error to the latter court has
been issued.
With the exceptions taken to the formality or technical accuracy
of the pleadings pending the prosecution this Court can have
nothing to do. The only question with which it can regularly deal
in this case is the following,
viz.:, whether that portion
of the statute of Ohio under which the prosecution against the
plaintiff has taken place, and consequently whether the conviction
and sentence founded on
Page 46 U. S. 433
the statute, are consistent with or in contravention of the
Constitution of the United States, or of any law of the United
States enacted in pursuance of the Constitution? For the plaintiff
it is insisted that the statute of Ohio is repugnant to the fifth
and sixth clauses of the eighth section of the first article of the
Constitution, which invest Congress with the power to coin money,
regulate the value thereof and of foreign coin and to provide for
the punishment of counterfeiting the current coin of the United
States, contending that these clauses embrace not only what their
language directly imports and all other offenses which may be
denominated offenses against the coin itself, such as
counterfeiting, scaling, or clipping it or debasing it in any mode,
but that they embrace other offenses, such as frauds, cheats, or
impositions between man and man by intentionally circulating or
putting upon any person a base or simulated coin. On behalf of the
State of Ohio it is insisted that this is not the correct
construction to be placed upon the clauses of the Constitution in
question, either by a natural and philological interpretation of
their language or by any real necessity for the attainment of their
objects, and that if any act of Congress should be construed as
asserting this meaning in the Constitution and as claiming from it
the power contended for, it would not be a law passed in pursuance
of the Constitution nor one deriving its authority regularly from
that instrument.
We think it manifest that the language of the Constitution, by
its proper signification, is limited to the facts, or to the
faculty in Congress of coining and of stamping the standard of
value upon what the government creates or shall adopt and of
punishing the offense of producing a false representation of what
may have been so created or adopted. The imposture of passing a
false coin creates, produces, or alters nothing; it leaves the
legal coin as it was -- affects its intrinsic value in no wise
whatsoever. The criminality of this act consists in the obtaining
for a false representative of the true coin that for which the true
coin alone is the equivalent. There exists an obvious difference
not only in the description of these offenses, but essentially also
in their characters. The former is an offense directly against the
government, by which individuals may be affected; the other is a
private wrong, by which the government may be remotely, if it will
in any degree, be reached. A material distinction has been
recognized between the offenses of counterfeiting the coin and of
passing base coin by a government which may be deemed sufficiently
jealous of its authority; sufficiently rigorous, too, in its penal
code. Thus, in England, the counterfeiting of the coin is made high
treason, whether it be uttered or not; but those who barely utter
false money are neither guilty of treason nor of misprision of
treason. 1 Hawk. P.C. 20. Again, 1 East Crown Law 178, if A.
counterfeit the gold or silver coin, and by agreement before such
counterfeiting B. is to receive and vent the money, he is an aider
and abettor to the
Page 46 U. S. 434
act itself of counterfeiting, and consequently a principal
traitor within the law. But if he had merely vented the money for
his own private benefit, knowing it to be false, in fraud of any
person, he was only liable to be punished as for a cheat and
misdemeanor &c. These citations from approved English treatises
on criminal law are adduced to show, in addition to the obvious
meaning of the words of the Constitution, what has been the
adjudged and established import of the phrase counterfeiting the
coin, and to what description of acts that phrase is
restricted.
It would follow from these views that if within the power
conferred by the clauses of the Constitution above quoted can be
drawn the power to punish a private cheat effected by means of a
base dollar, that power certainly cannot be deduced from either the
common sense or the adjudicated meaning of the language used in the
Constitution or from any apparent or probable conflict which might
arise between the federal and state authorities operating each upon
these distinct characters of offense. If any such conflict can be
apprehended, it must be from some remote and obscure and scarcely
comprehensible possibility, which can never constitute an objection
to a just and necessary state power. The punishment of a cheat or a
misdemeanor practiced within the state, and against those whom she
is bound to protect is peculiarly and appropriately within her
functions and duties, and it is difficult to imagine an
interference with those duties and functions which would be regular
or justifiable. It has been objected on behalf of the plaintiff in
error that if the states could inflict penalties for the offense of
passing base coin, and the federal government should denounce a
penalty against the same act, an individual under these separate
jurisdictions might be liable to be twice punished for the one and
the same crime, and that this would be in violation of the fifth
article of the amendments to the Constitution, declaring that no
person shall be subject for the same offense to be twice put in
jeopardy of life or limb. Conceding for the present that Congress
should undertake, and could rightfully undertake, to punish a cheat
perpetrated between citizens of a state because an instrument in
effecting that cheat was a counterfeited coin of the United States,
the force of the objection sought to be deduced from the position
assumed is not perceived, for the position is itself without real
foundation. The prohibition alluded to as contained in the
amendments to the Constitution, as well as others with which it is
associated in those articles, were not designed as limits upon the
state governments in reference to their own citizens. They are
exclusively restrictions upon federal power, intended to prevent
interference with the rights of the states and of their citizens.
Such has been the interpretation given to those amendments by this
Court in the case of
Barron v. Mayor and City
Council of Baltimore, 7 Pet. 243, and such indeed
is the only rational and intelligible
Page 46 U. S. 435
interpretation which those amendments can bear, since it is
neither probable nor credible that the states should have anxiously
insisted to engraft upon the federal Constitution restrictions upon
their own authority -- restrictions which some of the states
regarded as the sine qua non of its adoption by them. It is almost
certain that, in the benignant spirit in which the institutions
both of the state and federal systems are administered, an offender
who should have suffered the penalties denounced by the one would
not be subjected a second time to punishment by the other for acts
essentially the same, unless indeed this might occur in instances
of peculiar enormity or where the public safety demanded
extraordinary rigor. But were a contrary course of policy and
action either probable or usual, this would by no means justify the
conclusion that offenses falling within the competency of different
authorities to restrain or punish them would not properly be
subjected to the consequences which those authorities might ordain
and affix to their perpetration. The particular offense described
in the statute of Ohio and charged in the indictment against the
plaintiff in error is deemed by this Court to be clearly within the
rightful power and jurisdiction of the state. So far, then, neither
the statute in question nor the conviction and sentence founded
upon it can be held as violating either the Constitution of any law
of the United States made in pursuance thereof. The judgment of the
Supreme Court of the State of Ohio, affirming that of the court of
Common Pleas, is therefore in all things
Affirmed.
MR. JUSTICE McLEAN.
I dissent from the opinion of the Court, and, as this is a
constitutional question, I will state the reasons of my
dissent.
The defendant in the state court was indicted and convicted of
passing
"a certain piece of false, base, counterfeit coin, forged and
counterfeited to the likeness and similitude of the good and legal
silver coin, currently passing in the State of Ohio, called a
dollar."
This is made an offense by the law of Ohio, and punished by
imprisonment in the penitentiary and being kept at hard labor not
more than fifteen nor less than three years. The defendant was
sentenced to imprisonment at hard labor for three years.
The act of Congress of 3 March, 1825, punishes the same offense,
"by a fine not exceeding five thousand dollars and by imprisonment
and confinement to hard labor not exceeding ten years."
The eighth article of the Constitution gives power to Congress
"to coin money, regulate the value thereof, and of foreign coin."
Also "to provide for the punishment of counterfeiting the
securities and current coin of the United States."
Jurisdiction is taken in this case on the ground that the law
under which the defendant in the state court was sentenced is
repugnant
Page 46 U. S. 436
to the Constitution of the United States, and the above-cited
act of Congress.
Objection is made to the sufficiency of the description of the
counterfeit coin alleged to have been passed. But I think the
indictment, although not technical in this averment, is
maintainable. The false coin is alleged to be of the similitude "of
the good and legal silver coin, currently passing in the State of
Ohio called a dollar." The words "legal," "currently passing," and
"dollar," are significant, and must be held to be the coin made
legal and current by act of Congress, and that the denomination of
a dollar, so connected, is a coin legal and current.
The power to "coin money, regulate the value thereof and of
foreign coin," vested by the Constitution in the federal
government, is an exclusive power. It is expressly inhibited to the
states. And the power to punish for counterfeiting the coin is also
expressly vested in Congress. This power is not inhibited to the
states in terms, but this may be inferred from the nature of the
power. Two governments acting independently of each other cannot
exercise the same power for the same object. It would be a
contradiction in terms to say, for instance, that the federal
government may coin money and regulate its value, and that the same
thing may be done by the state governments. Two governments might
act on these subjects if uniformity in the coin and its value were
not indispensable. There can be no independent action without a
freedom of the will, and in this view how can two governments do
the same thing, not a similar thing? The coin must be the same and
the value the same; the regulation must be the result of the same
discretion, and not of distinct and independent judgments. This
power, therefore, cannot be exercised by two governments.
The Act of Congress of 3 March, 1825, "more effectually to
provide for the punishment of certain crimes against the United
States," &c., provides, by the twenty-sixth section, that
"Nothing in that act shall be construed to deprive the courts of
the individual states of jurisdiction, under the laws of the
several states over offenses made punishable by that act."
Offenses are made punishable in that act committed on the high
seas, in navy yards, and other places where the United States has
exclusive jurisdiction, and also for counterfeiting the coin of the
United States. Now it must be admitted that Congress cannot cede
any portion of that jurisdiction which the Constitution has vested
in the federal government. And it is equally obvious that a state
cannot punish offenses committed on the high seas or in any place
beyond its limits. The above section therefore cannot extend to
offenses without the state, nor to state statutes subsequently
enacted. It is a settled rule of construction that the statutes of
a state subsequently enacted must be expressly adopted by Congress.
The statute under which the defendants below was
Page 46 U. S. 437
indicted was passed 7 March, 1835, so that no force could be
given to it by the Act of Congress of 1825.
That Congress has power to provide for the punishment of this
offense seems to admit of no doubt. Coin is the creation of the
federal government, and the power to punish the counterfeiting of
this coin is expressly given in the Constitution. And these powers
must be incomplete, and in a great degree inoperative, unless
Congress can also exercise the power to punish the passing of
counterfeit coin. Such a power has been exercised by the federal
government for many years, and its constitutionality has never been
questioned.
Counterfeiting the notes of the Bank of the United States was
made an offense by Congress, and punishments were inflicted under
that law. This power was never doubted by anyone who believed that
Congress had power to establish a national bank. It seemed to be
the necessary result of the power to establish the bank. For the
principal power was in a great degree a nullity unless Congress had
power to protect that which they had created. I speak not of the
power to establish the bank, but of the power which necessarily
resulted from the exercise of that power. And if this power to
protect the notes of the bank was necessary, the power to protect
the coin is still clearer, as there can be no question as to the
constitutionality of the act of Congress to establish the coin and
punish the act of counterfeiting it. In relation to the bank, the
principal power is doubted by many, but in relation to the coinage
there can be no doubt. The protection of the coin was at least as
necessary as the protection of the notes of the bank. But it cannot
be necessary further to illustrate the power of Congress to punish
the passing of counterfeit coin. It is a power which seems never to
have been doubted.
Under the power "to establish post offices and post roads,"
Congress has provided for punishing violations of the mail,
regulated the duties of the agents of the post office department,
required, under heavy penalties, ferry keepers to pass over the
mail without delay &c. These and numerous other regulations are
necessary to carry out the principal power. And so in relation to
the coins. Is it reasonable to suppose that Congress, having power
to coin money and to punish for counterfeiting the coin, should
have no power to punish for passing counterfeit coin? Is this coin
created by the federal government and thrown upon the community
without power to prevent a fraudulent use of it? The powers of the
general government were not delegated in this manner. Where a
principal power is clearly delegated, it includes all powers
necessary to give effect to the principal power. This is not
controverted, it is believed, by anyone. It would seem, therefore,
that the power to punish for passing counterfeit coin is clearly in
the federal government.
Page 46 U. S. 438
Can this same power be exercised by a state? I think it cannot.
Formerly Congress provided that the state courts should have
jurisdiction of certain offenses under their laws, and in several
states indictments were prosecuted, and to a limited extent the
laws of the Union were enforced by the states. But some states very
properly refused to exercise the jurisdiction in such cases, and it
was too clear for argument that Congress could not impose such
duties on state courts. And this doctrine is now universally
established. Consequently no state court will undertake to enforce
the criminal law of the Union except as regards the arrest of
persons charged under such law. It is therefore clear that the same
power cannot be exercised by a state court as is exercised by the
courts of the United States in giving effect to their criminal
laws.
In some cases, the acts of Congress adopt the laws of the states
on particular subjects, but even these, so far as the United States
is concerned, become their laws by adoption, as fully as if they
had been originated by them, and cannot be considered in any
different light than as if they had been so passed.
If a state punish acts which are made penal by an act of
Congress, the power cannot be derived from the act of Congress, but
from the laws of the state. And in this light must the act of Ohio
be considered under which the defendant below was punished.
The act of Ohio does not prescribe the same punishment for
passing counterfeit coin as the act of Congress. This state law
must stand upon the power of the state to punish an act over which
the law of Congress extends and punishes. The passage of
counterfeit coin is said to be a fraud which the state may
punish.
With the same propriety it is supposed that a state may punish
for larceny a person who steals money from the mail or a post
office. And yet a jurisdiction over this offense, it is believed,
has not been exercised by a state.
The postmaster or the carrier, as the case may be, has a
temporary possession of letter, but the money abstracted from a
letter in the mail or in the post office may be laid in the owner,
who, in contemplation of law, retains the right of property until
the money shall be received by the person to whom it is
forwarded.
Many if not all of the states punish for counterfeiting the coin
of the United States while the same offense is punished by act of
Congress. And as before stated, the Constitution vests this power
expressly in Congress. Now in these two cases,
viz.,
counterfeiting the coin and passing counterfeit coin, the same act
is punished by the federal and state governments. Each government
has defined the crime and affixed the punishment without reference
to the action of any other jurisdiction. And the question arises
whether in such cases, where the federal government has an
undoubted jurisdiction, a state government can punish the same act.
The point is not
Page 46 U. S. 439
whether a state may not punish an offense under an act of
Congress, but whether the state may inflict, by virtue of its own
sovereignty, punishment for the same act as an offense against the
state which the federal government may constitutionally punish.
If this be so, it is a great defect in our system. For the
punishment under the state law would be no bar to a prosecution
under the law of Congress. And to punish the same act by the two
governments would violate not only the common principles of
humanity, but would be repugnant to the nature of both governments.
If there were a concurrent power in both governments to punish the
same act, a conviction under the laws of either could be pleaded in
bar to a prosecution by the other. But it is not pretended that the
conviction of Malinda Fox under the state law is a bar to a
prosecution under the law of Congress. Each government, in
prescribing the punishment, was governed by the nature of the
offense and must be supposed to have acted in reference to its own
sovereignty.
There is no principle better established by the common law --
none more fully recognized in the federal and state constitutions
-- than that an individual shall not be put in jeopardy twice for
the same offense. This, it is true, applies to the respective
governments, but its spirit applies with equal force against a
double punishment for the same act by a state and the federal
government.
Mr. Hamilton, in the thirty-second number of The Federalist,
says there is an exclusive delegation of power by the states to the
federal government in three cases: 1. where in express terms an
exclusive authority is granted; 2. where the power granted is
inhibited to the states; and 3. where the exercise of an authority
granted to the Union by a state would be "contradictory and
repugnant."
The power in Congress to punish for counterfeiting the coin and
also for passing it is exercised under the third head. That a state
should punish for doing that which an act of Congress punishes is
contradictory and repugnant. This is clearly the case whether we
regard the nature of the power or the infliction of the punishment.
As well might a state punish for treason against the United States
as for the offense of passing counterfeit coin. No government could
exist without the power to punish rebellion against its
sovereignty. Nor can a government protect the coin which it creates
unless it has power to punish for counterfeiting or passing it. If
it has not power to protect the constitutional currency which it
establishes, it is the only exception in the exercise of federal
powers.
There can be no greater mistake than to suppose that the federal
government, in carrying out any of its supreme functions, is made
dependent on the state governments. The federal is a limited
government, exercising enumerated powers, but the powers given
are
Page 46 U. S. 440
supreme and independent. If this were not the case, it could not
be called a general government. Nothing can be more repugnant or
contradictory than two punishments for the same act. It would be a
mockery of justice and a reproach to civilization. It would bring
our system or government into merited contempt. The sixth article
of the Constitution preserves the government from so great a
reproach. It declares that
"This Constitution, and the laws of the United States made in
pursuance thereof &c., shall be the supreme law of the land,
and the judges in every state shall be bound thereby, anything in
the Constitution or laws of any state to the contrary
notwithstanding."
That the act of Congress which punishes the passing of
counterfeit coin is constitutional would seem to admit of no doubt.
And if that act be constitutional, it is the supreme law of the
land and any state law which is repugnant to it is void. As there
cannot in the nature of things be two punishments for the same act,
it follows that the power to punish being in the general
government, it does not exist in the states. Such a power in a
state is repugnant in its existence and in its exercise to the
federal power. They cannot both stand.
I stand alone in this view, but I have the satisfaction to know
that the lamented Justice Story, when this case was discussed by
the judges the last term that he attended the Supreme Court, and,
if I mistake not, one of the last cases which was discussed by him
in consultation, coincided with the views here presented. But at
that time, on account of the diversity of opinion among the judges
present and the absence of others, a majority of them being
required by a rule of the Court in constitutional questions to make
a decision, a reargument of the cause was ordered. I think the
judgment of the state court should be reversed.
Order
This cause came on to be heard on the transcript of the record
from the Supreme Court of the State of Ohio, and was argued by
counsel. On consideration whereof, it is now here ordered and
adjudged by this Court that the judgment of the said Supreme Court
of the State of Ohio, affirming that of the court of common pleas,
in this cause be and the same is hereby in all things affirmed with
costs.