I. Counterfeiting the Securities and Current Coin of the United States.

§ 417. The securities" here mentioned might be so extended as to include all instruments by which the rights and interests of the general government are secured. But the context and the peculiar language used, show that the word is to be restricted to the evidences of indebtedness which the United States may have issued in pursuance of its power to borrow money. The power to coin money is protected in one portion of the clause, and the affiliated power of borrowing money would seem to be intended in the other. The bonds, treasury notes, certificates, and other written promises issued by the United States, would naturally circulate from hand to hand as representatives of value easily convertible, and to them the term "counterfeiting" may properly apply. The "current coin of the United States," plainly refers to that actually made and issued by the government, and does not include, as we shall see, foreign coin in circulation whose value Congress may have regulated. The authority to punish the counterfeiting of such foreign coin, and the forging of instruments which are not evidences of the public debt, must be referred to some other function of the legislature.

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§ 418. The express grant in question, then, enables Congress to punish the crime of counterfeiting the evidences of the public debt which are included under the name "securities," and the national coin made and circulated by authority of the general government. Counterfeiting" is a generic term, and, under the familiar principle of construction that a grant of the greater includes the less, it embraces not only the manufacture of forged coins and securities, but the uttering them when made, and the having them in possession with the intent to utter them. Congress may therefore pass laws determining each of these three grades of crime, the manufacture, the putting into circulation, and the having in possession with the intent to put into circulation; and may affix such penalties. and punishments to each offence as it deems expedient. The trial and conviction of offenders under these laws belong, as we shall see, to the national judiciary.

$419. As the coined metallic currency is national, completely and exclusively within the control of Congress; and as borrowing money is a national function of the highest consequence and import, to be guarded by all means within the power of the government, it was very proper, nay, absolutely necessary, that Congress should be able to pass laws providing for the punishment of counterfeiters, and for the consequent prevention of acts which would render these attributes of coining and borrowing absolutely useless. If the power to punish the counterfeiters of these national representations of value had been left entirely to the states, the government would have been without protection; any antagonism which might arise between it and the local commonwealth would paralyze its energies and reduce its laws to an empty form.

§ 420. While it is so indispensable to the orderly working of the general government, that it should hold the authority to punish those criminals who would destroy its currency and its credit, is it equally necessary that the power should be exclusive? In other words, may the states also exercise this function, and make the offenders punishable under the local laws? We have seen that the cases of exclusive power held by the United States may be reduced to three: (1.) Where the grant is in exclusive terms; (2.) Where the states are expressly prohibited; and (3.) Where there is a direct repugnance and incompatibility in the exercise of it by the states.1 The capacity to punish the offences in question does not fall under the first or second of these classes; does it under the third? In respect to some functions of the government it is impossible that two concurrent jurisdictions should act side by side upon the same subject-matter. Thus in regard to regulations of commerce, and bankrupt laws, if Congress has already legislated, any attempt of the states to pass laws would necessarily conflict with the system established by the general government. It is not so with respect to the function we are now examining. So long as Congress may apportion the punishments, and the national courts may try and condemn the criminals, there is no interference or repugnancy if the states.

1 See § 388.

also declare the act to be a crime, and supplement the punishment by a second penalty inflicted by their own tribunals. So long as the general government is left free to act, it is a matter which only concerns the state and the offender, whether he shall suffer a double penalty for the same criminal act.

§ 421. The question came directly before the Supreme Court of the United States in the case of Fox v. The State of Ohio. The prisoner had been indicted, tried, and convicted in a state court under a statute of Ohio, for passing a counterfeit coin of the denomination of one dollar of the United States. He carried the case to the Supreme Court, and asked that the judgment should be reversed on the sole ground that the state statute was unconstitutional. The conviction was affirmed, the court substantially adopting the views stated in the preceding paragraph. Although the criminal act in this case consisted in the uttering a counterfeit coin, the principles involved in the decision apply to forged securities, and in fact to many other offences against the United States.2

II. Piracies, Felonies committed on the High Seas, and Offences against the Law of Nations.

§ 422. It must not be supposed that the authority of the Congress is exhausted when it has acted under the precise and restricted terms of this clause. We are not to consider, in the present connection, the extent of the power to legislate on the subject of crimes; but we are to interpret this particular grant and inquire what laws may be passed by virtue of its provisions alone.

The United States has exclusive control of the foreign relations of the country; it alone stands as an independent and sovereign equal in the family of nations; the states have not, in fact, any foreign relations. As this capacity and function thus inhere in the one body politic, its government is respon

1 5 How. 410.

2 See United States v. Marigold, 9 How. 560; Moore v. People, 14 How. 13; Commonwealth v. Walker, 108 Mass. 309; Commonwealth v. Barry, 116 Mass. 1; 1 Wh. on Cr. Law, § 264. ED.

sible to foreign countries for all breaches of international law done by its citizens. Where the responsibility rests the power should reside. Unless the government held the authority in its own hands to define offences against the law of nations, and to punish the offenders, it would be continually involved in controversies, and perhaps, wars, with other powers. As other states know it only in their intercourse, reparation, apology, security for the future would be demanded of it; and if the demand could not be answered, reprisals and war would be inevitable.

§ 423. For these reasons, to maintain a condition of peace, to do justice to other nations, to restrain the unlawful proceedings of its own citizens and inhabitants, the grant of power to define and punish offences against the law of nations was not only convenient but necessary. The grant is full and comprehensive, and any measures may be adopted under it which are demanded by the exigencies of our international obligations. An illustration of such measures is found in the "neutrality laws," so called, which forbid the fitting out and equipping of armed vessels, or the enlisting of troops, for either of two belligerents, with whom the United States is at peace; and in the laws which prevent the organizing within the country of armed expeditions against friendly nations.

§ 424. Piracy is a word having a twofold legal aspect. It is an offence against the international law, and may be made also an offence against the municipal law. So far as piracy is an offence known to the law of nations, it is an universal principle of that law, that every state has jurisdiction over pirates, to arrest and punish them, no matter of what countries they are natives or citizens, and no matter where or against whom the offence was committed. The theoretical basis of this.common jurisdiction is, that pirates have no nation; their crimes have denationalized them; they are said to be, not in a figure, but in reality, enemies of mankind, hostes gentium, at war with the whole human race. These principles apply, however, only to piracy according to the law of nations. It is important to inquire, therefore, What does the International Law declare to be piracy, and whom to be pirates?

§ 425. A late French writer has thus graphically described the crime and the criminals: 1 In general, pirates are those who rove the seas, under no national authority, but only under their own, to commit thereon acts of depradation, pillaging by main force, either in time of peace or of war, the ships of all nations, without making any other distinction than that which their own convenience or safety may suggest. The criminal acts committed by such desperadoes constitute the crime of piracy. Pirates, therefore, on the seas, resemble organized bands of highwaymen on the land; only, pirates choosing for the theatre of their crimes a neutral sea, a place common to all mankind, and attacking, indiscriminately, all nations, their trade is even yet more dangerous to humanity.

The English and American courts have had frequent occasion to define this crime, and their definitions will be found more condensed and precise than the description just quoted from the French writer. Thus in England it has been declared that," Piracy is an assault upon vessels navigated on the high seas, committed animo furandi, whether the robbery or forcible depradation be effected or not, or whether or not it be accompanied by murder or personal injury. If a ship belonging to an independent nation, and not a professed buccanier, practices such conduct on the high seas, she is liable to the pains and penalties of piracy." Several cases of piracy came before the Supreme Court at an early day, the most important and leading of which was The United States v. Smith.3 In their judgment the court observed: "There is scarcely a writer on the Law of Nations who does not allude to piracy as a crime of settled and determined nature; and, whatever may be the diversity of definitions in other respects, all writers concur in holding that robbery or forcible depredations upon the sea animo furandi, is piracy."

§ 426. The United States has, therefore, full power, either under the clause relating expressly to piracies, or under that referring to offences against the law of nations, to provide 1 Ortolan, Diplomatie de la Mer, liv. II. ch. XI. 21 Phillimore on Intern. Law, p. 379.

35 Wheat. 153.