I admit that Congress cannot confer jurisdic- | provided for or established by the laws under tion upon the State courts, and that this provision could not give the power if it be surrendered in the Constitution. It is not in that view that this section helps out the State jurisdiction, but merely as a long continued exposition of the opinion of Congress that such jurisdiction exists, and has not been surrendered. Furthermore, this section quite overcomes any argument to be derived from the eleventh section of the Judiciary Act, which provides, that the circuit courts of the United States shall have exclusive cognizance of all crimes and offenses cognizable under the authority of the United States, except where that act, or the laws of the United States, shall otherwise provide. 1 Statutes at Large, 78. It is claimed for the plaintiff in error, that this provision in favor of State jurisdiction | ought to be limited to a jurisdiction under the laws of the States in force at the time of its enactment; and as the law of Ohio, under which this prosecution was had, has been enacted subsequently, it cannot be helped by the pro vision. The case of The United States v. Paul, 6 Peters, 141, is relied upon as establishing this distinction. That case was a prosecution in the Circuit Court of the United States, for an offense com- | mitted at West Point, a place within the exclusive jurisdiction of the United States. No question of concurrent jurisdiction could arise, for in such places the jurisdiction of the United States is exclusive. The prosecution was for 422*] an *offense not defined in the criminal code of the United States, and was had under which they lived. Now, with regard to the provision for concurrent jurisdiction by State courts, under the twenty-sixth section, there is no reason for a limitation to such laws as were in force at the time of the passage of the act. The subsequent laws could only operate upon persons within the jurisdiction in which they were enacted, and bound in every sense to obey them. The plaintiff in error also relies upon the case of Prigg v. Pennsylvania, 16 Peters, 539. The doctrine declared in that case is, that, as to fugitives from labor, the jurisdiction of the United States is exclusive, and that no State can exercise any jurisdiction even favorable to the right secured by the Constitution. There is perhaps nothing in the clause of the Constitution upon that subject which amounts to an express exclusion of State jurisdiction, and yet the peculiar nature of the subject leads to that result. The reclamation of fugitives is essentially a national subject, and matter of international law and treaty stipulations between independent sovereignties. It was therefore proper to provide for it in our Constitution, and the provision is so made as to execute itself without the aid of any legislation. Besides, this provision is not so *much in the [*423 character of a grant, or surrender of power, as of a compromise or treaty between the States, securing to a portion of the States an important and delicate right against all subsequent interference. In this compromise the federal government is alone vested with all jurisdiction over the subject, and neither of the States can, by the exercise of any jurisdiction or pow the provisions of the third section of the Acter, change or impair the right so secured. It is of Congress of March 3, 1825, which provides, that all crimes committed in places within the exclusive jurisdiction of the United States, which crimes are not defined by any law of the United States, shall be punished in the same manner in which such crimes are punished by the laws of the particular State. The offense was one not made punishable by the laws of New York when the Act of 1825 was passed, and the only question was, whether the juris diction of the United States should be limited to such offenses as were then defined by the State legislation. This court held that the jurisdiction should be so limited. The distinction between the question there made and the one at bar is obvious. The third section of the Act of 1825 adopted the entire criminal code of the States, as to all crimes other than those specifically enumerated in the body of the act. This was a code of criminal law for the regulation of all persons within the places under the exclusive jurisdiction of the United States, and it was precisely equivalent to an enactment by Congress of every offense then constituting the criminal codes of the States. No laws or offenses were adopted into this code of the United States but those then in existence. To bring a subsequent State law or a new offense into this code would require a further adoption, or a new enactment by Congress. It could not otherwise be made the law for the exclusive place, for it would work the greatest injustice to persons within such place to make them liable to new offenses, created by a foreign jurisdiction, not in any way wholly withdrawn from State sovereignty. I have now considered the arguments for the plaintiff in error against the exercise of concurrent jurisdiction. They have been shown to be all founded in supposed inconvenience. In conclusion, I must ask the attention of the court to some of the consequences which must follow a denial of this jurisdiction. The criminal code of the United States is made up of a few sections, and defines but a few offenses. Except in places under the exclusive jurisdiction of the United States, it has a very limited operation; and as to such places, it adopts for their government the criminal code of the particular State in which they Lappen to be situate. It establishes no rules for criminal procedure, other than by some general adoption of the State laws and practice. There is no local magistracy in the several States appointed to take the initiative in prosecutions; and the courts of the United States, sitting in one place, and at long intervals, are badly accommodated to the administration of criminal law. Besides all this, the federal government does not possess a jail or penitentiary out of the District of Columbia or its territories. Now, to say nothing of other crimes, if it be held that the offense of counterfeiting includes the long list of crimes which have relation to spurious coin, and that the jurisdiction over all of them is wholly withdrawn from the States, anyone 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. What speed could be made by the marshal of such a State as Ohio, and his deputy, the only executive officers in that State bound to act in arresting and bringing to justice these offenders, carrying on their business in the eighty counties of the State? If it be said that the State magistrates, sheriffs, and constables may act a matter, by the way, of grave doubt, especially as to judicial actionyet no one pretends that they are bound to act; you relieve them from the obligation to act under State law the instant you oust the State jurisdiction. And what is to be done with this class of criminals now convicted in State courts, and undergoing their punishment in the penitentiaries of the States? If this branch of jurisdiction does not belong to the States, their sentences are nullities, and all these felons must be released. These are some of the arguments from incon424*] venience, from a *denial of this salutary jurisdiction to the States; and they far outweigh all like arguments which have been urged by the plaintiff in error. Mr. Convers, in reply, for the plaintiff in er ror: The whole subject matter of the coin-its creation, regulation, its protection-is vested exclusively in the federal government. Constitution of U. S. art. 1, secs. 8, 20. That the right to coin money is exclusively in Congress is conceded; for not only is the power to coin expressly granted by the Constitution, but the exercise of the coining power by the States is expressly prohibited. This exclusive power of creation would, of itself, upon all sound principles of construction, carry with it the right of regulating and of protecting the thing when created, even in the absence of express grant to regulate and protect. But as the right of coinage is one of the exclusive, it follows that the judicial power of the United States over the same thing is also exclusive. In all governments, the judicial is co-extensive with the legislative power. They are co-existent and co-essential elements of government. The courts of the States, therefore, have no jurisdiction over offenses against the coin. The Constitution declares that the judicial power shall extend to "all cases arising under the Constitution, laws, and treaties of the United States." This is a grant of exclusive jurisdiction. It extends to all cases arising under the laws of the United States. It is [*425 clearly exclusive; for the Constitution, after declaring that the judicial power shall extend to "all cases" of certain descriptions, and proceeding to provide for other cases, in which it is admitted the jurisdiction is concurrent, drops, ex industria, the word "all," and declares that it shall extend to "controversies between citizens of different States," etc.; thus leaving, in the cases last enumerated, concurrent jurisdiction with the States. The distinction upon which the Constitution proceeds in this respect is a clear and intelligible one. Where the federal jurisdiction is made to depend upon the subject matter, the Constitution extends it to "all cases" growing out of such subject matter, and makes it exclusive. Where it depends, not upon the subject matter, but upon the character of the parties, it is simply declared to extend to "controversies" between certain parties, and not to "all cases" or to "all controversies" between them, and the jurisdiction is not exclusive, but concurrent with a like jurisdiction in the State tribunals. Now, it has repeatedly been decided that the State courts cannot take jurisdiction of a prosecution for an offense against an act of Congress, or for the recovery of a penalty for the violation of any of the penal laws of the Unithighest attributes of sovereignty, the Constitu-ed States. Commonwealth v. Feely, 1 Virginia tion, for the purpose of shutting out all contro-Cases, 321; Jackson v. Rose, 2 Ibid. 34; Unitof shuttin versy between the federal and State governed States v. Lathrop, 17 Johns. 4; Haney v. ments touching so delicate and important a Sharp, 1 Dana, 442; Eli v. Peck, 7 Conn. R. power, proceeds, not from the necessity of the thing, but ex abundanti cautela, 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. The prohibition against the exercise of this power by the States was therefore inserted in the Constitution. 244; Davison v. Champlin, Ibid.; State v. McBride, 1 Rice's S. C. R. 400; Mathison v. Missouri, 4 Missouri R. 421. From these authorities it follows that Congress has no right to confer judicial power, touching its own proper legislation, upon State tribunals. They are not "ordained and established by Congress." Their judges are not amenable to Congress. They hold, in many of the States, by a different tenure of office from that declared by the federal Constitution. The judicial power of the United States is declared to extend to all cases arising under the laws of the United States, and is expressly vested in the Supreme may ordain and establish. Art. 3, sec. 1. So with respect to the right to punish an injury to the coin of the United States-the right to preserve it and make it subserve the great purpose of its creation-this is a necessary in cident to the power to create, and as the chief | Court and such other tribunals as Congress power is exclusive, so is this power to preserve the coin and make it available also exclusive; It is true, that, in some of the cases just cited for the incident follows and partakes of the it is said that the State tribunals, although character of its principal. Notwithstanding not bound to take the jurisdiction tendered by this incidental power thus results, by necessary Congress, yet may, if they see proper to do so, implication, as an exclusive power, it was pru-assume it. This cannot be. The question is dent not to leave it to construction, clear as that is; but, in a matter of which the people were so jealous as of the exercise of criminal jurisdiction by the federal government, to declare in express terms the right to punish. The legislative power over the subject being one of power under the Constitution, not of discretion. Now, under the Constitution, Congress has or has not the power to transfer jurisdiction to the courts of the States. If it have the power, then it is the duty of the States to receive and exercise the jurisdiction; for, in the peculiar relation subsisting between the general and State governments, the right on the part of Congress to transfer jurisdiction implies the corresponding duty on the part of the States to receive it. Right and duty, used in reference to the general and State governments, are cor-ing is an exclusive power, being expressly 426*] relative terms. If *it be not the duty granted to the United States, yet that the the identical offenses made punishable by the act of Congress, and to enforce *such [*427 laws in the State forum, it is in either case alike unconstitutional and void. 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. This view of the subject accords with the contemporaneous construction of the Constitution afforded by the eleventh section of the Judiciary Act of 1790, 1 Stat. at Large, 78, which provides that "the circuit courts of the United States shall have exclusive cognizance of all crimes and offenses cognizable under the authority of the United States, except where that act or the laws of the United States shall otherwise provide." The latter part of this provision has reference to the cases as to which that act or the laws of the United States may provide that some other court of the United States (not State court) shall have cognizance, instead of the Circuit Court. It countenances no such thing as giving to the State tribunals cognizance of these crimes and offenses. The twenty-sixth section of the Crimes Act of March 3d, 1825, 4 Stat. at Large, 122, relied upon by the defendant in error, is only a saving of jurisdiction to the States, under the laws thereof, over offenses made punishable by But it is said, that, admitting that the power to punish the offense of counterfeit power to punish the passing of counterfeit coin does not belong to Congress, or if it possess such power at all, it holds it concurrently with the States. In support of this, it is urged that whilst the Constitution expressly invests Congress with power to punish the offense of counterfeiting, it is silent as to the right to punish the uttering of false coin. Indeed, the argument of the counsel for the defendant in error 'goes to the extent of denying to the general government the right to punish at all the offense of passing counterfeit money. But the argument cannot be sustained. The power to punish the offense of uttering is essential to enable Congress to protect its coinage, and to make it available. The circulation of the base interferes with that of the genuine coin. It discredits it by casting suspicion upon it. The law of self-protection gives to Congress the right to provide against the uttering and passing of the counterfeit. It is said, however, that technically there is a distinction between the crime of counterfeiting and uttering. That the former is of higher grade; that in England it is denounced that act. It does not profess to confer jurisdic-as high treason, while the latter is regarded as tion, but only to leave with the States any-ju-a misdemeanor. But this was not so at comrisdiction which, under their laws, they might mon law. It is only in virtue of certain acts rightfully have. That act assumed to exercise of Parliament, expressly declaring that counover the offenses therein declared all the juris- | terfeiting should be regarded as treason against diction rightfully belonging to the United the crown, and punished as such-leaving the States, under the Constitution and by the twenty-sixth section, to guard against encroaching upon the rights of the States. But if this section of the Act of 1825 did expressly provide that jurisdiction should be vested in State courts over offenses made cognizable by that act, it would clearly be void; for, as already shown, Congress has no power to delegate judicial power to the State courts. If it be intended to authorize the State Legislatures to make laws to be enforced in their own courts for the punishment of the same offenses punishable by that act, Congress transcended its powers in thus attempting to assign to the States the power of legislation, kindred crimes of uttering, as all offenses against the coin originally were, misdemeanors only. Blackstone, in his Commentaries Vol. IV. pp. 88, 89, says, that there is no foundation in reason for the distinction created by the British statutes. From the fact that, at the time of the adoption of the Constitution, this distinction obtained in England, although only in virtue of statutes of that realm, and with no reason to justify it, the counsel for the defendant in error claims that the power given to Congress to punish "counterfeiting" must be taken as restricted to that which was declared high trea son in England, and does not extend, therefore, which, by the Constitution, is vested in Con- to any of the offenses which grow out of gress itself. The legislative power of Congress counterfeiting, and are necessarily incident to is not an assignable commodity. The federal it. government is not an original, but derivative government of delegated and limited, not originalio original, powers. Its powers, both legislative and judicial, are vested in itself, to be exercised by itself-not to be transferred to others-delegatus non est delegare. Whether, then, the saving in the 26th section of the Act of 1825 were intended to apply only to the exercise of judicial power by the State court over the particular "offenses made punishable by that act," where the laws of the States required their courts to take cognizance of offenses against the laws of the United States, in cases where Congress so directs, or, what would be more objectionable, to authorize the States to legislate for the punishment of This argument cannot be sustained. 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. The Constitution having granted the power to punish the crime in chief, gives, as incidental to that, the right to punish all other crimes of like nature, growing out of the principal offense, and which are its necessary concomitants; especially where, as in this instance, the grant is of power to punish *the higher grade of the like offense, [*428 for the greater power includes the less. The term "counterfeiting," as used in the Constitution, is nomen generalissimum-the generic term for crimes debasing or impairing 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? The sole object of punishing the act of counterfeiting is to prevent the circulation and passing of the counterfeit, to the prejudice of the genuine. The argument of the counsel for the defendant in error, while it concedes the power to punish the act of counterfeiting, in order to prevent the consequence which flows from it -the passing and circulation of counterfeit coin-would yet deny the power to punish for bringing about that very consequence itselfthe passing; for doing the very thing to prevent which the act of counterfeiting is itself made punishable. However apposite the argument might be, on a question of criminal special pleading, which deals in technical refinement, it is wholly out of place when applied to constitutional construction. Again, the grounds upon which it is claimed that the States have power to punish offenses against the coin of the United States is, that the powers belonging to the States prior to the adoption of the Constitution are retained by them, unless prohibited by the Constitution in express terms, or by necessary implication. Now, if it were conceded that the exclusive right of punishing the passing of base coin was not vested in Congress by express grant, it would not follow that the States possessed that power-because the States never, at any time, had the power of punishing offenses against the coinage of the United States. They had no such original power before the Constitution, because no such coinage was then in existence. They then had the power to punish counterfeiting of their own State coin, and of foreign coin. But the coin of the United States is not the coin of a State, but of the federal government. It is not a foreign coin; for in regard to the federal coin, the States are not foreign to each other, or to the United States all deriving their coin from the same source, the federal government. A coin so peculiar in the relation which the States sustain to it as that of the United States coin was wholly unknown to the original States. It is a new thing-a creation of the Constitution itself. It cannot, therefore, be said that the States, before the adoption of the Constitution, were ever possessed of the right to punish offenses against the federal coin, or 429*] destructive of its end, *and that such power, not being taken away from the States by the Constitution, remains to them to be exercised as part of their original proper powers. This view of the question seems conclusive in favor of the exclusive power of the United States over the protection and preservation of its coin, including the derivative and secondary offense of passing, as well as the of fense in chief of counterfeiting. Finally, it is claimed on behalf of the defendant in error, that if the United States possess the power to punish the uttering, it is only concurrent with a like power belonging to the States. What has been already said shows, I think, conclusively, that the power of Congress to punish the crime of counterfeiting is exclusive; and as the power to punish the passing is derived from the same source, being necessarily incidental, that also is exclusive. The same reasoning that supports the claim of one to an exclusive character supports that of the other to a like exclusive character. The difficulties and collisions which result from the concurrent exercise of power in either case are precisely the same. 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 government, will conclusively show that no such concurrent power can exist. Now, if the power be concurrent, a conviction in the State court is, on the one hand, a bar to a prosecution in the federal court, and e converso, a conviction in the federal court is a bar to a prosecution in the State court; or, on the other hand, such conviction in one court is not a bar to a prosecution in the other. The weight of authority is decidedly in favor of. the doctrine, that a conviction in either_court is a bar to a prosecution in the other. 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 offense of one denomination is a bar to another prosecution for an offense of another and different denomination, founded upon the same act. 1 Green's N. J. R. 362; 2 Haywood's N. C. R. 4; 2 Hawks, 98; 2 Tyler, 387; 2 Va. Cases, 139; 7 Conn. 54. In regard to concurrent jurisdiction, it is also a universal principle, wherever the common law is known, that, of the concurrent courts, the one which first takes jurisdiction acquires by that act the right to go on and exercise the jurisdiction throughout, to the exclusion of all other concurrent tribunals. The right to jurisdiction is concurrent; but when the exercise of the right once begins in any one of the concurrent courts, so that jurisdiction attaches to the particular case, the case then becomes one exclusively cognizable by that court, and the other tribunals cannot interfere. 16 Mass. R. 171; Ibid. 203; 3 Yerger, 167; 2 Stew. & Port. 9; 1 Hawks, 78; Payne's C. C. R. 621. *In Antonio's case, 3 Wheeler's Crim. [*430 Cases, 508, and also reported in 2 Comst. S. C. R. 781, so strongly relied upon by the defendant in error to show the concurrent power of the State, it is said that a conviction in the State is a bar to a prosecution for the same act in the federal court. The same thing is said by Mr. Justice Washington, in Huston v. Moore, 5 Wheat. 31. Now, if a prosecution in a State court is to be sustained under the twenty-sixth section of the Act of Congress of 1825, it follows that Congress has the power to devest the courts of the United States of their jurisdiction over acts declared offenses and made punishable by act of Congress, notwithstanding the Constitution expressly declares that the judicial power in fish the offense, when it might prevent it, and "all cases, arising under the Constitution, laws, afterwards punish the same act itself, it and treaties of the United States" shall be vested in the courts of the United States. And Congress in the twentieth section of that act has expressly provided for punishing the crime of passing and uttering counterfeit coin-the very crime of which the plaintiff in error was convicted in the State court. And not only so, but, if the conviction in the case now before the court be sustained, being a conviction under a statute of Ohio, passed in 1835, providing for the punishment of the same crime, Congress also parts with its proper power of legislation and transfers that to the Legislatures of the States-transfers a power given to Congress to be exercised by itself alone for the benefit of the people of the whole Union, and not to be delegated to other legislative bodies. 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. Both the legislative and judicial powers of the United States are thus rendered abortive. The States, by the agency of Congress (whether the language of the act of Congress authorizing it be in terms imperative or permissive), are made to defeat the powers granted by the Constitution to the general government. But the evil does not stop here. The jurisdiction of the States, when a prosecution is once begun in their tribunals, is exclusive, as well to discharge the convict from punishment, as for inflicting it; and the pardoning power, in such case, becomes exclusively vested in the executive of the State. The President, then, has no right to pardon, or to refuse to pardon, although the offense consists of an act made punishable by Congress. The pardoning power vested in him by the Constitution is by the action of the State governments, by the direction or with the consent of Congress, invaded. violates both the letter and spirit of this great safeguard of the citizen-one which is also a fundamental principle of the common law. It has already pervaded its criminal jurisprudence. Indeed, even in civil cases the common law declares nemo bis vexare pro eadem causâ. 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, ed, for the same offense. These great constitutional provisions become a mere mockery. There is no escape from the alternative presented, between devesting the judicial, legislative, and executive departments of the federal government of their constitutional powers, and the double jeopardy and punishment, except to hold that the cognizance of the offense is exclusively vested in the general government. It is suggested by the counsel of the defendant in error that the protection against the double jeopardy does not apply to this case, where the punishment is imprisonment only, the language of the fifth article of the amendment to the Constitution being "twice put in jeopardy of life or limb." He seems to think that it must be a case of actual, total loss or destruction of limb, to come within the constitutional protection. This is clearly a mistake. That it extends to cases where the punishment was total loss or destruction of limb is true, although there were but very few cases of such punishment known to the common law at any time, even in its earliest and most barbarous periods; and I believe none at all when the Constitution was adopted. But the jeopardy of limb was not confined to cases of actual dismemberment. It is a common law *term, [*432 and extends to all cases where punishment inflicted any injury upon limb, and of course to Congress has placed a case which properly be-confinement or restraint of the freedom of limb, longs to him, under the Constitution of the United States, beyond his reach. whether it be by the imprisonment in the stocks, the dungeon, or the penitentiary, as well as to cases of actual dismemberment. In conclusion I ask, what reason is there for Thus, upon this construction, not only are 431*] the functions of the *legislative and judicial departments of the federal government | vesting a concurrent jurisdiction in State tri taken from them, and vested in the States, but the President of the United States is stripped of his prerogative of executive clemency. Surely a doctrine leading to such results cannot be sustained; and there is no escape from it but to hold that a conviction in a State court is no bar to a prosecution in the courts of the United States. 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; and that a person may be thus twice put in jeopardy, and twice punished, for the same offense, contrary to the fifth article of the amendments to the Constitution of the United States, which declares that no person shall be subject, for the same offense, to be twice put in jeopardy of life or limb." If Congress merely permit the States to pun bunals? The federal government has no need of such aid. In its own ample resources, in the plentitude of its own proper powers, lie the means of its safety and protection. Hic arma, hic currus. To hold that the States have concurrent power will lead to jealousies and contentions between the two jurisdictions. It cannot be expected that this devisum imperium, this "joint occupation" of the same ground by the federal and State governments, can go on without engendering strifes and collisions. In view, then, of the difficulties that result from the doctrine of concurrent right in the States, as well as of the clear grant to the federal government of the whole subject matter of the coin, I submit whether the attempt to make out the concurrent right does not fail, and ask, therefore, a reversal of the judgment. Mr. Justice Daniel delivered the opinion of the court: This case comes before us on a writ of error |