was in the similitude of an American, Mexican, Peruvian, or Bolivian dollar, all which are established by act of Congress, then it would be sufficient.

No such limited signification can be given to these words. If the averment was "good and legal silver coin of the United States," it would be different; but it is "good and legal silver coin, currently passing in the State of Ohio."

But there is a certain test of e meaning of this descriptive allegation, and that is, to inquire whether a conviction under this indict413*] ment *could have been had, upon proof of passing a counterfeit in the similitude of any of the foreign silver coins of the denomination of a dollar not made part of our national currency by act of Congress.

In order to this, we must look at the statute of Ohio creating the offense, as well as at the indictment.

The words of the statute are: "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," etc. 29 Ohio Stat. 136.

There can be no question that this provision covers every description of coin, domestic and foreign, whether made current by act of Congress or not. Take, then, the case of passing a counterfeit of a German dollar, which is a description of coin not made current by act of Congress, and what difficulty would be in the way of a conviction under this statute and indictment.

It may be claimed, by the plaintiff in error, that the words "good and legal silver coin currently passing in the State of Ohio," though not used in the statute, yet make a descriptive averment of some coin made legal or current by act of Congress. If that be so, there is no question that the averment, though unnecessarily made, must be proved, upon the familiar doctrine that all merely descriptive allegations become material.

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;" and that, instead of being descriptive of a particular coinage, they are merely descriptive of the genuineness *and lawfulness of [*414 the original which has been counterfeited, and are put in opposition to the other words used in the indictment- "forged, base, and counterfeit"-to express exactly the contrary.

2. The Constitution authorizes Congress "to provide for the punishment of counterfeiting the securities and current coin of the United States."

The plaintiff in error has been convicted of passing a counterfeit dollar. I claim, that though it be admitted this coin was of the current coin of the United States, yet the offense of uttering or passing it is not an offense cognizable by the United States.

This leads to a consideration of the meaning of the term "counterfeiting," as used in the Constitution. It is claimed for the plaintiff in error that it is a generic term, and includes every offense in relation to the coin.

This clause does not carry with it a power to define and punish the offense, as is the case in the clause in relation to piracies and felonies committed on the high seas, but is strictly limited to the punishment of an offense named and designated. The consequence is, that, in the absence of any grant of power to define or enlarge, the jurisdiction of the United States is to be confined to the very offense so namedthe offense of counterfeiting. What, then, is the meaning of this term, as used in the Constitution? It is nowhere defined in the Constitution itself, so that we are to find its meaning elsewhere. At the time the Constitution was framed, the offense of counterfeiting was well known and certainly defined; and in that country from which it was adopted, it stood among the class of crimes which amounted to high treason.

Speaking of the English statutes against this species of treason, Mr. East, in his Pleas of the Crown, Vol. I. p. 162, says: "It is first to be seen what is a counterfeiting within these stat. utes. There must be an actual counterfeiting, either by the party himself or by those with whom he conspires. A mere attempt to counterfeit, such as preparing the materials or fashioning the metal, is not sufficient, except in those particular instances which have been so declared by statute."

So, too, in Hale's Pleas of the Crown, p. 19; "What shall be a counterfeiting? Clipping, washing, and filing of the money, for lucre or gain, any of the proper money of the realm, or of other realms, allowed to be current by proclamation, not within this statute, but made high treason by Stat. 5 Eliz., but no corruption of blood or loss of dower. Impairing, diminishing, falsifying, scaling, or lightening the proper money of this realm, or the money

ment of laws regulating the coin, and providing punishment for the offense of counterfeiting. The question is simply one of criminal jurisdiction over an offense cognizable in every State of the Union, either at the common law or by virtue of State legislation.

It is clear, in the first place, that this branch of criminal jurisdiction belonged to the States, respectively, before the adoption of the Constitution; and that it continues with them, unless it has been wholly surrendered to the federal government. It is also clear, that there is no express prohibition in the Constitution to the exercise of this jurisdiction by the States. The exclusion of State jurisdiction is argued from the fact that the Constitution vests a jurisdiction over this offense 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 devest the States of the power so granted. There must be something more; either a prohibition, a grant in exclusive terms, or a manifest incompatibility. Take, for instance, the power to levy taxes. This is granted in the Constitution, but no one has ever supposed that thereby the States devested themselves of this power. So, too, in the clause granting to Congress the power to coin money; inasmuch as this power existed in the States as independent sovereignties, it would have remained in them, notwithstanding the grant, if, by a separate clause, it had not been expressly prohibited to them.

This express prohibition against the coinage of money by the States, which follows the grant of the power in the Constitution, affords a cogent argument against any implied prohibition of jurisdiction over offenses against the coin. The prohibition was not left to inference, but was expressly stated. It is, therefore, a legitimate argument against a like prohibition of the criminal jurisdiction, that it is not also expressed.

There are undoubtedly powers granted in the Constitution which are necessarily exclusive, though not expressly prohibited to the States. The power to establish uniform rules for naturalization, to regulate the value of foreign coin, to fix the standard of weights and measures-all these are necessarily exclusive; for there could be no regulation, uniformity, or fixed standard, if each State were allowed to legislate upon these subjects.

418]* *In respect of such powers as are not necessarily exclusive, but which it was deemed expedient to withdraw altogether from State jurisdiction, it will be found that an express and cautious prohibition prohibition accompanies the grant. This is so as to the power to lay duties, to coin money, to enter into treaties, to declare war, to omit bills of credit, and to maintain armies or navies in time of peace. It can be said of nearly all those powers, with infinitely more force than as to the mere power of criminal jurisdiction now in question, that they are essentially of a national character, and that the exclusion of State authority might have been left to inference. Why, then, if a prohibition

of criminal jurisdiction was intended, was it not also expressed? Why expressly prohibit, with respect to powers of such a character, and omit the prohibition as to a power much less obvious to a prohibition by implication?

In the absence, then, of exclusive grant and express prohibition, the plaintiff in error has no ground to stand upon, unless she makes out a case of repugnancy or incompatibility.

I think it is quite evident that, if this power is lost to the States on this doctrine of incompatibility, the loss is altogether fortuitous, and not the result of intention; and that, consequently, such a loss ought not to obtain, except from the most controlling necessity. Indeed, that is true of all the exclusive powers claimed for the federal government on this ground.

The true doctrine is found in the thirty-second number of the Federalist, and is stated as follows:

"An entire consolidation of the States into one complete national sovereignty would imply an entire subordination of the parts; and whatever power might remain in them would be altogether dependent on the general will. But as 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 before had, and which were not, by that act, exclusively delegated to . Congress. This exclusive delegation, or rather this alienation of State sovereignty, would only exist in three cases: where the Constitution in express terms granted an exclusive authority to the Union; where it granted, in one instance, an authority to the Union, and in another prohibited the States from exercising the like authority; and where it granted an authority to the Union, to which a similar authority in the States would be absolutely and totally contradictory and repugnant. I use these terms to distinguish this last case from another, which might appear to resemble it, but which would, in fact, be essentially different; I mean, where the exercise of a concurrent jurisdiction might be productive of occasional interferences in the policy of any branch of administration, but would not imply any direct contradiction, or repugnancy, in point of constitutional authority.'

It very clearly appears, from this exposition of the powers of the *general govern- [*419 ment and of the States, that there may be an exercise of concurrent jurisdiction in the caseof a granted power; that the mere grant works no exclusion of State sovereignty, even where its concurrent exercise may lead to occasional interference in the policy of either government, and that nothing short of absolute and total repugnancy and contradiction will suffice.

And now what is there in the exercise of this criminal jurisdiction by the States, which makes it so absolutely repugnant to the exercise of the same jurisdiction by the general government? I have heard nothing urged which amounts to more than an argument of expediency or convenience, or that shows anything beyond a liability to "occasional interference."

3

And, in truth, these arguments from inconvenience are more fanciful than real; for the experience of forty years, during which there

It is said the criminal may be subjected to a double prosecution by this concurrent jurisdiction, and that the conviction or acquittal in one tribunal will not bar a prosecution in the other. This admits of serious question. The doctrine of criminal proceedings and sentences, between governments that are essentially foreign to, and independent of, each other cannot apply, in full force, between the United States and one of the States, in respect of an offense committed within the limits of one of the States, and which is prohibited as well by the laws of the Union and of the particular State.

It is said by Mr. Justice Washington, in Houston v. Moore, 5 Wheat. 31, that, in cases of concurrent criminal jurisdiction between the general government and the States, the sentence of either court may be pleaded in bar in the other, in like manner as the judgment in a civil suit. Crimes have reference to place, and are necessarily confined to territorial limits. It follows from this that a crime committed in one State cannot be cognizable in another, either for the purposes of trial and punishment, and that the result of the prosecution, either of acquittal or conviction, is necessarily confined to the territorial limits of the State. It has even been held that a conviction for an infamous offense 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. Commonwealth v. Green, 17 Mass. R. 515.

The doctrine, it seems to me, does not apply to an offense committed in the body of a State, which is at the same time an infraction of federal and State law. It is not as to either, in regard to territorial limits, a foreign offense, except when committed in some fort, arsenal, dock yard, or other place lying within any State over which the sole jurisdiction has been surrendered by the State to the general government. Such places no longer belong to the 420*] States, *and are as essentially foreign to them, for all purposes of local jurisdiction, as if they were situate in another State.

The objection founded on the power of pardon vested in the two executives is also made to the concurrent jurisdiction. It is said, by the exercise of this power either government may obstruct the due administration of the criminal laws of the other. This is not to be intended, even if it should be granted that a pardon by either would expiate the offense against both. Arguments founded on a supposed abuse of power are most unsatisfactory. În 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 sort of crime, and the State much more than the federal government.

The double prosecution never can extend to cases of life and limb, for that is forbidden, as well to the States as to the general government, by the fifth article of the amendments to the Constitution. There is no consitutional difficulty in the way of a double prosecution, involving merely imprisonment or fine, or any other punishment short of life or limb. Indeed, there are many cases of admitted concurrent jurisdiction which lead to this result. Such is the case of a soldier of the United States who commits a crime in the body of a State, and not within a place over which the United States possess exclusive jurisdiction. He is unquestionably liable to prosecution and punishment, as well in the State courts as before a court-martial of the United States. So, too, the same offense may be punished by impeachment by the United States, and prosecution in the local criminal tribunals.

Indeed, in the ordinary administration of criminal law by the respective States, it may happen that what at the common law is considered, and is in fact, but one offense, may be punished in two States. This is so in respect of goods stolen in one State and carried into another. Very many of the States take jurisdiction of the offense, by reason of the mere asportation of the goods into their territory, and not one of them allows the plea of acquittal or conviction of the larceny in the State where the theft was committed, except, perhaps, the State of New York.

It is not pretended, on the part of the plaintiff in error, that there has been any decision of the question at bar by this court. Reliance is had upon a solitary decision by the Supreme Court of one of the States, in which State jurisdiction has been denied. This is the case of Mattison v. Missouri, 3 Mo. Rep. 421.

*That case, instead of establishing a [*421 rule, stands as a remarkable exception to the universal practice of the courts of all the other States. If it were necessary to say more, it might be added, that the force of its authority is weakened by a strong dissenting opinion of one of the judges, and that it does not appear to have been followed, or at all relied upon, in a subsequent case before the same court. State v. Shoemaker, 7 Mo. Rep. 177.

In most of the States, this branch of concurrent jurisdiction has constantly been exercised without question, and in those States in which it has been drawn into question the decisions have fully sustained the jurisdiction. State v. Antonio, 3 Wheeler, C. C. 508; State v. Tutt, 2 Bailey, 44; Chess v. State, 1 Blackf. 198; White v. Commonwealth, 4 Bin. 418.

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 this act." 4, Statutes at Large, 121.