Article 1, Section 8, Clause 6

Document 3

State v. Randall

Hutchinson, J.: . . . The motion in arrest is now to be considered; and the first and second points urged will be disposed of together. The first point is, that the courts of the United States have jurisdiction of the offence charged. The second is, that the State Court has no such jurisdiction; and the reason assigned in argument is, that the courts of the United States have a paramount jurisdiction.

That the courts of the United States have this paramount jurisdiction, is inferred from the constitutional power of congress to legislate upon this subject, and from their having in fact so legislated. The power of congress upon this subject is comprised in the 8th section, article 1st, of the constitution, on the 27th page of our Statute Book, and is in these words;--"The congress shall have power to provide for the punishment of counterfeiting the securities and current coin of the United States." Whatever power upon this subject is not given to congress, by the above section, yet remains in the several states: for this is all that gives any such power, and the 12th article of the amendments, is as follows: "The powers not delegated to the United States by the constitution, not prohibited by it to the states, are reserved to the states respectively, or to the people."

Now, it is not, nor can it be, pretended, that bank notes are a current coin, and within that expression of the constitution. Nor is it easy to conceive how they can be termed the securities of the United States. The United States have not issued them, nor are they holden to pay them. The United States own some shares in the bank stock, and in this they are like other stock-holders, but not the individual stockholders, but the bank, or whole body of stockholders, who act by their agents, the President and Directors, issue the bills, and must pay them when returned for payment. Those are the securities of the United States, which are issued by their direction, and for which they receive a consideration, and which they must pay and redeem. Such are various certificates, indents and notes issued by the officers of the United States, under some law of congress, showing a debt due from the United States; such were the treasury notes issued in the time of the late war.

If congress have any right to legislate upon that subject, they derive it by implication merely. It is inferred from their right to establish a bank; but it has been a subject of great doubt whether they have that right. And, if that right be doubtful, their right to give jurisdiction to the United States' courts of the offence of counterfeiting the bank bills, must be no less doubtful.

But, if it were a conceded point, that congress have such a right to legislate upon this subject, we cannot admit, that by that merely, the state Legislatures are deprived of such right. The congress of the United States have never so understood the constitution, and great practical difficulty would result from such a construction.

The constitution, article 3d, section 2d, defines to what the judicial power of the United States shall extend; and among other things, says, it shall extend to controversies between a state and citizens of another state, between citizens of different states, between citizens of the same state, claiming lands under grants of different states, &c. Suppose congress had never passed any law giving the jurisdiction of these subjects to any particular court of the United States, or had never established any courts to whom such jurisdiction could be given, can it be pretended that these cases would be out of the pale of the law? That no action could be maintained in the courts of this state in favour of a citizen of Massachusetts, against a citizen of this state? No actions between our own citizens claiming lands under grants from different states? It is impossible that a court should so decide. In the provisions made by congress, adapted to these cases, they consider that the state courts hold jurisdiction, till some law of congress transfers the exclusive jurisdiction to the courts of the United States. Their provisions are contained in the 11th section of the judiciary act. That gives no jurisdiction whatever to the courts of the United States, in cases of common law and equity, unless the sum or value in controversy exceeds five hundred dollars, exclusive of costs: and the original jurisdiction is given in those cases only in concurrence with the courts of the several states. And a part of the same section gives to the circuit courts exclusive cognizance of all crimes and offences cognizable under the authority of the United States, except where said act otherwise provides, or the laws of the United States should otherwise direct, and concurrent jurisdiction with the district courts, of the crimes and offences cognizable therein. The expression, offences cognizable under the authority of the United States, implies, that congress must have power from the constitution to make, and in fact make, laws for the punishment of crimes, before the circuit courts can take cognizance of the same; and the exception which follows, takes out of this jurisdiction every case taken out and placed elsewhere by the same, or any other act of congress.

The foregoing views have been fully sanctioned by the supreme court of the United States, in the case of Houston vs. Moore, 5 Wheaton, page 1. A statute of Pennsylvania, of March 1814, enacted, among other things, "that every non-commissioned officer and private of the militia, who shall have neglected or refused to serve when called into actual service, in pursuance of any order or requisition of the President of the United States, shall be liable to the penalties defined in the act of the congress of the United States, passed on the 28th of February, 1795." Houston was called to go into actual service and refused, and was fined by a court martial, ordered under the state authority, and the fine was levied of his property; and he brought his action of trespass for taking his property, which was decided against him in the highest court of the state; and the decisions comprised in a bill of exceptions were revised upon a writ of error, brought to the supreme court of the United States, and the question to be decided was, whether the state statute was constitutional? It was decided so to be, and the judgment was affirmed. This is a long report, and the question of concurrent jurisdiction of the United States' courts and state courts fully examined; and the result drawn, is, that where congress may give jurisdiction to the courts of the United States, yet have not done it, the state courts retain jurisdiction; or, if exclusive jurisdiction is not given to the United States' courts, the state courts retain concurrent jurisdiction.

The cases alluded to, of state bankrupt laws and steam boat grants, rest upon other parts of the constitution, and have little or no analogy to the present question. The state bankrupt laws fall within a section of the constitution which negatives the power of a state to pass laws of the nature therein named; one of which is a law impairing the obligation of contracts. And the steam boat grants import an exclusive privilege, which interferes with the powers of congress to regulate commerce with foreign nations, and among the several states, and with the powers actually exercised by congress in regulating the coasting trade.

Hence we have arrived at the conclusion, that even if congress have the power and right to give exclusive jurisdiction over this offence to the courts of the United States, until they shall have done so, the jurisdiction remains in the state courts, by force of the laws of the several states, as fully as if congress had no power to legislate upon the subject.

But it is said, that congress have legislated upon the subject, and made provision for the punishment of the same offence; and the act of congress is produced. See the statute of 1816, Ingersol's Digest, page 93. The terms of the body of this statute are sufficiently extensive to confer entire jurisdiction over this offence to the courts of the United States; but the whole statute must be construed together, or the correct inference will not be drawn. And the statute contains the following proviso: "Provided that nothing herein contained, shall be construed to deprive the courts of the individual states of a jurisdiction, under the laws of the individual states, over any offence declared punishable by this act." The necessary construction of this statute is, that congress admit, or concede the previous power of the states to enact laws, and their courts to execute them, over this offence, and give jurisdiction to the courts of the United States, sub modo, and so as not to interfere with that previous jurisdiction of the state courts. The 17th of John. Rep. pages 4th and 261st, is cited to show, that congress cannot give jurisdiction to the state courts. Probably they cannot give such jurisdiction, but it is unnecessary now to decide that question. It is sufficient for the present case, if the courts of this state would have had jurisdiction, had not congress interfered at all, and that the interference of congress expressly leaves the state courts enjoying all the rights of jurisdiction they had before the act of congress passed. The distinction between the conferring a jurisdiction by congress, and the refusal to take away a jurisdiction already enjoyed, is too obvious to require elucidation.

Other acts of congress, of an earlier date, punishing the counterfeiting of United States' bank bills contain each the same proviso. In fact, that subject has never by congress been taken from the jurisdiction of the state courts, where they held the same by their own laws.

Furthermore, congress have the most conclusive right to legislate upon the subject of counterfeiting the coins, and may give exclusive jurisdiction for the punishment thereof to the courts of the United States. Upon this they have legislated, and have given jurisdiction to the courts of the United States, but not exclusive; for they have added a proviso similar to the other, expressly leaving a concurrent jurisdiction in the state courts, under the state laws. See said Ingersol's Digest, page 163.

This concurrent jurisdiction has always been exercised by the state courts ever since the organization of the federal government, both over the subject of counterfeiting the coins and the bills of the United States' Bank. Many convictions have been had, and prisoners punished corporeally, and by confinement to hard labour, and otherwise, according to the laws of the several states. We should be afraid, at this late period, to decide that all these convictions have been coram non judice, and prepare the way for all the prisoners to bring their actions of trespass against those who inflicted the punishments, and even against the judges themselves.

Besides, during all this time, no person has ever appealed to the paramount jurisdiction of the United States' courts for redress, nor has any branch of the United States' government furnished an intimation, that these proceedings were wrong. The practice, therefore, universal in itself, is supported by general approbation; and a contrary practice would be attended with such incalculable inconvenience, that no state tribunal ought ever to take the lead in attempting a change. What could be done in case of a change? Congress have made no provision for such an event. Their laws punish by confinement to hard labour; but they have made no provision for any place for such confinement. The marshal may hire, if he can; otherwise there is no place within his control. It would require an entirely new regulation of United States' prisons, if the jurisdiction of the courts of the United States were to become and be considered as exclusive over all the crimes of which they may take jurisdiction.

The object of the Federal Compact does not require such a course. That object is to unite the strength of all the states for the common support and defence of their national rights. To effect this, the judicial power of the courts of the United States should extend to all those matters that may affect the general union, and tend to support its integrity and harmony. Their jurisdiction should extend over such crimes as necessarily affect the Union, or the Federal Government as such. Hence their criminal code is almost exclusively of this description. The statutes of the United States provide for the punishment of treason against the United States; piracy, murder or robbery upon the high seas, or a territory under the sole jurisdiction of the United States, forgery of the publick securities of the United States, stealing, altering, &c. the records of the United States' courts, perjury committed in the courts of the United States; resisting the officers of the United States in their official duties; the counterfeiting the coins of the United States, &c. &c. So far as this last offence is an attack upon the Mint of the United States, or upon the Treasury, by creating a liability that counterfeit coins make a part of the national funds, it is not only proper, but necessary that there should be a tribunal for their punishment, without depending upon the state courts. But, so far as the crime bears principally upon the rights of the citizens of the individual states, it is at least, safe and proper to permit the state courts, under the state laws, to punish such offence. The cases might be too numerous to receive a proper attention from the high tribunals of the United States, so few in number as are provided, and so remote may be the officers whose duty it might be to prosecute. But, be this as it may, congress, while they give a jurisdiction to the courts of the United States over the counterfeiting the coins and the bills of the United States' bank, say expressly, that they will not take from the state courts any jurisdiction they may have, by the laws of the individual states, over the same offences.

But there is urged upon the Court the hardship, and even absurdity, that a man should be liable to be arraigned before two distinct tribunals, for the same offence. The difficulty in this, like other concurrent jurisdictions, is rather imaginary than real. The court that first has jurisdiction, by commencement of the prosecution, will retain the same till a decision is made; and a decision in one court will bar any farther prosecution for the same offence, in that or any other court. It is like the case of civil suits for matters over five hundred dollars, between citizens of different states. The creditor may sue, at his election, either before the court of the state, or of the United States; but, when he has made such election, the debtor is safe from any liability to be called before the other court. So, if goods are stolen in one county, and carried by the thief through several counties, he is liable to be prosecuted in either of those counties; but, when prosecuted in one, that puts an end to his liability for that offence.

Sufficient, perhaps, is said, even if the crime charged were clearly comprised in the United States' statute, for then the jurisdictions would be concurrent; but the crime of which the respondent stands convicted by the jury is clearly not contained in said statute. It is contended, however, that, although the same act is not punished by the United States' law, yet congress having legislated upon the subject, all is to be considered as included; what is not expressed is to be considered as merged in what is expressed: or, in other words, congress having affixed a punishment to the forging and passing these counterfeit bills, it is a virtual enactment, that no other transaction concerning them shall be made penal. This argument is plausible, and may be applied with correctness and force to certain cases where the very enactment implies a negative of all other provisions. For instance, the laws of congress, regulating the coasting trade and prescribing requisites that must be complied with by all who embark in that trade, necessarily imply that the trade may be pursued with no other restraints from government than those prescribed. So of the laws regulating foreign commerce, so far as relates to the requisitions of our own government. But those who sail within the jurisdiction of any foreign government, must not consider our government as warranting that there shall be no new requisitions there. The same may be said of statutes in general, that confer rights unconditionally. No condition can be lawfully added afterwards. But, should courts decide that a statute of the United States' congress, providing for the punishment merely of the original counterfeiting of coins or bank bills, divests each state of the power to pass a law, to punish the passing, to her own citizens, such counterfeit coins or bills, this would be narrowing down the sovereignty of the individual states to a small compass. Just so, should congress, as in the present case, provide a punishment for making and passing, but none for the having in possession, with intent to pass. The powers of a state, necessary to prevent a continual depredation upon her citizens, by fraud and deception, should never be thus narrowed down by implication merely. It is soon enough for the state courts to relinquish their jurisdiction over such offences, where it is expressly conferred by the statute of the state, when some act of congress transfers the exclusive jurisdiction to the courts of the United States.

The decision of the Court is, that the state court has jurisdiction of the offence charged, and of which the respondent has been found guilty.

Another objection urged in arrest, is, that the statute, upon which the indictment is founded, is so repugnant to itself as to be wholly void. (See the statute, p. 261.) So far as need be recited, it is as follows: "That if any person shall counterfeit, or cause or procure to be counterfeited, or aid or assist in counterfeiting, any bill or note issued, or to be issued, by the president, directors and company of the bank of the United States, or shall alter any such bill or note, issued or to be issued, as aforesaid, or shall utter, pass, or give in payment, or offer to pass or give in payment, or procure to be offered, passed, or given in payment, or have in his possession, with an intention to utter, pass or give in payment, any such counterfeited, or altered bill or note, knowing the same to be counterfeited or altered, every person so offending, on conviction, shall be punished," &c. The repugnancy objected to, is created by the use of the word counterfeited. It is said, that the expression, a counterfeited bill, imports the true bill, in imitation of which some spurious bill is made; and that the expression in the indictment, "had in his possession a certain false, forged and counterfeited bank note, with an intention to utter, pass and give in payment the same, which was made in imitation of, and did purport to be a bank note, issued, &c." imports the charge of having in his possession the true bill, not the spurious one; and that the alleging it to be false and forged, (words not in the statute) does not help the case, but adds to the repugnancy. The respondent's counsel, in support of this objection, have cited the 4th of Cranch R. 167, United States vs. Cantrill. That was a motion in arrest, for two reasons assigned, one to the indictment itself, and one to the statute on which it was predicated. It was submitted without argument, and the court decided, that the judgment ought to be arrested for reasons assigned in the record. In adverting to the reasons, the statute is recited as follows. "If any person shall utter or publish, as true, any false, forged or counterfeited bill or note, issued by order of the president, directors and company of the bank of the United States, and signed by the president, and counter-signed by the cashier," &c. This recital furnishes reason enough for the arrest, for such a statute punishes the publishing as true, bills actually issued by order of the president, &c. and actually signed by the President, &c. Such bills may be said to be counterfeited, according to the strict interpretation of that word, but they cannot be called false and forged; nor ought people to be punished for passing them. It is not so easy to see the force of the other objection, nor is it certain that the court intended to sanction it. The charge is, that the defendant [had] "a certain false, forged and counterfeit paper, purporting to be a bank bill of the United States, for ten dollars, signed by Thomas Willing, president, and G. Simpson, cashier, &c." It is said, that this means and imports, that the false and counterfeit bill was in fact signed by Thomas Willing, and so of the cashier. This is not the necessary construction, and it is obvious the person who drafted the indictment, intended the word signed should refer to the true bill, which the counterfeit purported to be. Remove the comma that precedes the word signed, and such would be the necessary construction, and the objection would vanish. And it would seem hardly proper to quash an indictment upon so nice a point as would depend upon the punctuation, which is always in some degree arbitrary.

Possibly another objection might have had weight, though it does not appear to be noticed. The expression is, a bill of the United States, not of the bank of the United States. This was a failure to declare within the statute. At any rate, the United States' statute was considered to be a nullity, and congress passed another upon the same subject.

It is suggested, that the same repugnancy exists in the statute of this state, above recited, as in that of the United States. If the word counterfeit had been used instead of the word counterfeited, in the two last places where it occurs, in what is herein before recited, the difficulty would all be removed, with regard to that part of the statute. The word is used in its proper sense where it first occurs in the section. The expressions, "shall counterfeit, or procure to be counterfeited, or assist in counterfeiting," mean the making or procuring to be made, or assisting to make a false and counterfeit bill, in imitation of a true bill, issued, &c. and the expression, "had in his possession a counterfeit bill, knowing the same to be counterfeit, and with intention of uttering, &c." would be a consistent and proper description of the crime intended to be punished. And wherever the word altered is used in the section, it is used in a consistent and proper sense. It is obvious, that the legislature, in this statute, used the word counterfeited in the sense of counterfeit, in the part applicable to this indictment. Now the question is, shall the Court sanction this use of the word, or decide the statute void, for its repugnant use of the word? In Swift's Dig. 1st vol. p. 12, several rules of construing statutes are collected, which may be of use upon this question.

1st. We must consider the subject matter, and affix to the words used, a meaning correspondent to the subject to which they are applied. In applying this rule, it is plain the object of the legislature was, to provide for the punishment of every kind of traffick in spurious bank bills. They begin by describing, in proper language, the making of them, and then proceed, in as proper language, to describe the passing them and having them in possession with intent to pass, till they come to the word which should characterize the spurious bill, and there use the word counterfeited. To construe this as meaning a true bill, or the one of which a counterfeit was passed, or intended to be passed, would be changing the subject matter entirely. If there can be no mistake, either by the Court, or those who read the statute to learn what conduct is prohibited, as to what the legislature intended by the word counterfeited, we ought to construe it as they intended it. Words are but signs of ideas, and the same words are frequently used, in some degree, in different senses. The ancient forms of declarations for assault and battery, show that the word entreat was then used in the same sense as we now use the word treat.

A second rule from the same author is, "The cotemporaneous exposition of a statute is to be regarded; such as the opinion of the sages of the law who lived at the time it was made." In applying this rule, we observe, that the statute of 1797, made upon this subject, and which was in operation twenty years, used the word counterfeited in the same place and sense as this statute. Very many indictments were framed, and convictions had upon that statute. Some were met with demurrers, others with motions in arrest. The ablest counsel in the several counties were employed to defend, and it is not known that any indictment failed, through the insufficiency of that statute. Either the counsel thought it no objection, and did not move it, or it was overruled. Every State's Attorney found difficulty upon the subject. But the indictments were drawn much upon the plan of these 2d and 4th counts, describing the spurious bill, and then saying, that it was made in imitation of, and did then and there purport to be, a bank note of, &c. issued, &c. describing the true bill, imitated by the spurious one. But in a count for uttering, &c. the expression, knowing the same to be counterfeited, was necessarily used, for such was the statute.

A third rule from the same author is, that "Words and phrases, the meaning of which has been ascertained in a statute, are, when used in a subsequent statute, to be understood in the same sense."

After the statute of 1797 had been in operation twenty years, and the word counterfeited had been considered as meaning the same as the word counterfeit, not only in the statute, but in indictments founded upon it, in all, or nearly all the counties of the state, the revision of the criminal code was submitted to a respectable judiciary committee, who reported, and the legislature enacted, the law now in question, placing the word counterfeited where it must be understood in the same sense as in said former statute, from which this was nearly copied. Here then, is virtually an enactment of the legislature, that the word counterfeited in that statute shall mean the same as counterfeit.

It is worthy of observation, that though congress passed a new law to remedy the evils in the old one, as before mentioned, yet the word counterfeited is used in the same sense as in our statute, three times in the statute of the United States, now in force, to punish the counterfeiting the publick securities; and once in the act to punish the counterfeiting of bank bills.

The Founders' Constitution
Volume 3, Article 1, Section 8, Clause 6, Document 3
The University of Chicago Press

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