Peter Vivian Daniel

“ The constitution of the United States very wisely vests the same prerogative in the federal government; and, following the English laws, it vests along with the prerogative the power to punish the single offence, which in England was found to be the most dangerous invasion of the power. The prerogative is to coin good money, and regulate its value, and the offence is to coin bad money, and impair the value of the good. The power to punish is simply given in aid of the prerogative, and goes no further than the offence which directly and necessarily impairs it. ”

“ Now, to say nothing of other crimes, if it be held that the offence of counterfeiting includes the long list of crimes which have relation to spurious coin, and that jurisdiction over all of them is wholly withdrawn from the States, any one can see that the consequences must be most disastrous. There is not a class of crime so common, nor a class of offenders so dexterous, and requiring so much a local vigilance. ”

“ The term 'counterfeiting,' as used in the constitution, is nomen generalissimum,-the generic term for crimes debasing or imparing the coin. The passing of the spurious is an immediate and direct injury to the genuine coin, for it displaces it in the circulation, and discredits it by exciting distrust and suspicion. Indeed, it is only by the passing of the base that the genuine is injured. To what end is it, that the counterfeiting is prohibited and punished, but to prevent the counterfeit from getting into circulation,-to prevent its passing? ”

“ 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 offence 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 ”

“ The principle that a State conviction is a bar to a federal prosecution, and that, where there is concurrent jurisdiction, the tribunal first taking jurisdiction afterwards holds that jurisdiction, and exercises it throughout, to the exclusion of all others, necessarily leads to this result. ”

“ 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. ”

“ Arguments founded on a supposed abuse of power are most unsatisfactory. In point of fact, no such abuse has yet arisen, nor is it likely to arise; for both governments are deeply concerned in the prevention of this sort of crime, and the State much more than the federal government.
But if it were admitted that the concurrent jurisdiction involved a liability to a double prosecution, or that there was probability of interference by the exercise of the pardoning power, these results would not divest the States of this portion of their sovereignty. ”

“ The exclusion of State jurisdiction is argued from the fact that the constitution vests a jurisdiction over this offence in the United States, by authorizing Congress to pass laws for its punishment, which jurisdiction, it is said, must necessarily be exclusive. We deny this inference, and claim that the jurisdiction may be concurrent.
The mere grant of a power in the constitution has never been held to divest the States of the power so granted. There must be something more; either a prohibition, a grant in exclusive terms, or a manifest incompatibility. ”

“ But as the right of coinage is one of the highest attributes of sovereignty, the constitution, for the purpose of shutting out all controversy between the federal and State governments touching so delicate and important a power, proceeds, not from the necessity of the thing, but ex abundanti cautel a, to prohibit coining by the States, preferring that the exclusive right of the federal government to this great prerogative power should not rest upon construction alone, however clear and necessary might be the implication in favor of its exclusive claim. ”

“ 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 misdemeanour practised 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. ”

“ The constitution of Ohio contains a like prohibition against a double prosecution and double punishment; and yet, if the doctrine of the defendant in error be sustained, the plaintiff in error is liable, notwithstanding this double guarantee, to be twice prosecuted, twice convicted, and twice punished, for the same offence. ”

“ 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] 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 act itself of counterfeiting, and consequently a principal traitor within the law. ”

“ Right and duty, used in reference to the general and State governments, are correlative terms. If it be not the duty of the States to take upon themselves the jurisdiction, when directed so to do by Congress, it is not the right of Congress to confer it. ”

“ 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. ”

“ For, if the concurrent jurisdiction of the State courts do not become exclusive, upon a prosecution being commenced and carried on to conviction and punishment, it follows that neither a prosecution nor conviction in a State court can be a bar to a prosecution under the act of Congress in the federal courts ”

“ There is no escape from the alternative presented, between divesting the judicial, legislative, and executive departments of the federal government of their constitutional powers, and the double jeopardy and punishment, except to held that the cognizance of the offence is exclusively vested in the general government. ”

“ It has been repeatedly held that a man cannot be convicted and punished for two distinct felonies growing out of the same identical act, and that a former conviction or acquittal of an offence of one denomination is a bar to another prosecution for an offence of another and different denomination, founded upon the same act. ”

“ The reasoning by which it is attempted to support it is too artificial to be applied to such an instrument as the constitution,-the organic law of a great nation,-which deals only in generals, and cannot, from its nature, be expected to descend into details. ”

“ A slight consideration of the consequences which result from regarding the power to punish either the counterfeiting or the passing as concurrently vested in the federal and State governments, will conclusively show that no such concurrent power can exist. ”

“ It has even been held that a conviction for an infamous offence in one of the States, which works a personal disqualification in the State where the conviction is had, is of no force in another State. ”

“ But we are not now looking for the meaning of these words as used in a contract, but in an indictment for passing counterfeit money. Coin, which may not be legal for the payment of a debt, may yet be legal as a currency; although not regulated in value by act of Congress, it is yet lawful as a circulation. It seems to me there can be no question that the latter is the true sense in which these words are used in the indictment, especially when we take the whole sentence,-'good and legal silver coin currently passing in the State of Ohio' ”

“ It countenances no such thing as giving to the State tribunals cognizance of these crimes and offences.
The twenty-sixth section of the Crimes Act of March 3d, 1825 (4 Stat. at L., 122) , relied upon by the defendant in error, is only a saving of jurisdiction to the States, under the laws thereof, over offences made punishable by that act. It does not profess to confer jurisdiction, but only to leave with the States any jurisdiction which, under their laws, they might rightfully have. ”

“ But were a contrary course of policy and action either probable or usual, this would by no means justify the conclusion, that offences 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. ”