All the grounds taken in arrest of judgment in' this case may be reduced to two ; 1st. Whether under that section of the constitution of thq United States, which give 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 States, article 1. federal constitution1, section 8th,” is also given the power to provide for the punishment of passing any of the current coin thereof, knowing it to be counterfeit. 2d. 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 l proceed to a particular examination of those questions, I would premise that the United States must be held to possess all the attributes of sovereignties 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 *526constructively, but expressly made commensurate with the legislative. It is made to extend “ to all cases arising under the laws ofthe United States.” The words are, “ The jud¡c¡a¡ power (of the United States) shall extend to alt 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 ofthe United States,” for by the act of congress, it is made highly penal to counterfeit the current coin ofthe 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 decription, 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 state 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, “ all cases 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 embrace those also.
, This construction is farther strengthened by a view of the class of cases which immediately follows in the same *527section of the constitution, “ to controversies to which the United States shall he 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 ,e 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 legislating 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? 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 *528have resulted 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 authorized ; 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 confederation, 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 jurisdiciion 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 : 1st. Where the constitution in express terms grants exclusive'authority to the union : 2d. Where it grants in one instance an authority to the union, and in another prohibits the states from exercising like authority : and, 3d, Where it grants an authority to *529the union, to which a similar authority in the states would be absolutely and totally contradictory and repugnant. Under this last case, he instances that clause which declares that congress shall have the power “ to establish a 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 ; otherwise, 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 jurisdiction, 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 sot and ought not. Neither the courts ofthe United States. *530nor 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 inforcing its own penal laws, and its jurisdiction cannot be usurped' by the other. The right (o punish, (says an eminent writer, “ arises from the right pf 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 fl the peace sjpd dignity” of the state of South-Carolina. One, therefore, must have whole jurisdiction, or a person maybe 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’ pot only contrary to the express letter.of the consitution, but contrary to the eternal and unerring principles of justice,
The case put of concurrent jurisdiction of courts in'the same state is pot anajagous, 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 atrial in dither tribunal having jurisdiction,
The rule then must be a correct one, that where any ppwer is delegated jo 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 HP suppprt from the amendment of the constitution which jias been relied on. It does not say that the powers not expressly delegated, &c. shall be reserved ; but that the enupie.ration of certain rights shall not be construed to deny or disparage others retained by the people ; and whether by pxpress qr necessary implicatinn, the effect is the same.
If: is farther argued that prohibiting the states from making any thing bqt gold silver a tender in the payment of debts, pecessarily implies a power in them to make those so. In gpswer to which,, after what has been already said, 1 will *5315nÍy observé that I am not disposed to admit such ah inféVence. Admit it* however, to be correct, it only proves, that a state may make certain foreign coins current within their respective jurisdictions, which are not made so by congress; Btit that introduces no conflict of jurisdiction. For the power of cotígress 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 bf the distinction taken tiélwee'ü 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 coiil made at the mint of the United States. The conclusion,■ therefore, that I have come to is, that thé power of punishing the counterfeiting of foreign coin made current iti thé United States by act of congress, or passing the same* knows ing it to be counterfeit, belongs exclusively to the1 general government, and the trial of persons for those offences be.longs exclusively to the courts of the United States. Thé administration of criminal justice is not a privilege whichwé ought to be anxious to retain, though a painful duty Whicfe we are sometimes bound to perform.
I am of opinion the judgment ought to bé árr'estéd for want of jurisdiction. But as a majority of the court differ from me on this point, it becomes necessary to give ah opinion also on the ground of a hew 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* süéfe *532evidence ought not to have been admitted in the court below 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 1 .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 a 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 fori 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 Campbell, 324. Iamin favor of the motion in arrest of judgment as well as for a new trial.
Grimke, for motion.
Attorney-General and Hunt, contra.