carry into effect other delegated powers. (a) We are not aware that this question has been judicially determined. It has been held that the power conferred upon congress by the fifth and sixth clauses of the eighth section, to wit, "to coin money, regulate the value thereof and of foreign coin, and fix the standard of weights and measures," to provide for the punishment of counterfeiting the securities and current coin of the United States, does not prevent a state from passing a law to punish the offence of circulating counterfeit coin of the United States. That the two offences of counterfeiting the coin and passing counterfeit money were essentially different in their character. That the former was an offence directly against the government, by which individuals might be affected; the latter was a private wrong by which the government might be remotely, if in any degree, reached.(b)

§ 217. In the case last cited it was contended, for the plaintiff, that such a statute of Ohio was repugnant to the fifth and sixth articles of the constitution, which invests congress with the power to coin money, regulate the value thereof and of foreign coin, and to provide for the punishment of counterfeiting the current coin of the United States; that these clauses embrace not only what their language directly import, and all other of fences which may be denominated offences against the coin itself, such as counterfeiting, scaling or chipping it, or debasing it in any mode, but that they embrace other offences, such as frauds, cheats, or impositions between man and man, by intentionally circulating or putting upon any person a base or simulated coin. On behalf of the state of Ohio, it was insisted, that this was not the correct construction to be placed upon the

clauses of the constitution in question, either by a natural and philological interpretation of their language, or by any real necessity for the attainment of their objects; and that if any act of congress should be construed as asserting this meaning in the constitution, and as claiming from it the power contended for, it would not be a law passed in pursuance of the constitution, nor one deriving its authority regularly from that instrument. The court held, it was manifest that the language of the constitution, by its proper signification, was limited to the facts, or to the faculty in congress of coining and of stamping the standard of value upon what the government creates or shall adopt, and of punishing the offence of producing a false representation of what may have been so created or adopted. The imposture of passing a false coin, creates, produces, or alters nothing; it leaves the legal coin as it was; it affects its intrinsic value in no wise whatever. The criminality of the act consists in obtaining for a false representative of the true coin that for which the true coin alone is the equivalent. There exists an obvious difference not only in the description of these offences, but also in character. The former is an offence directly against the government, by which individuals may be affected. The other is a private wrong, by which the government may be remotely, if in any degree, reached. A material distinction had been recognized between the offences of counterfeiting the coin and of passing base coin, by a government which may be deemed sufficiently jealous of its authority, sufficiently vigorous too in its penal code. Thus in England, the counterfeiting of the coin is made high treason, whether it be uttered or not, but those who barely utter false money are neither guilty of treason nor of misprision for treason. If A counterfeit the gold or silver coin, and, by agreement before such counterfeiting, B is to receive and vend the money, he is an aider and abet

tor to the act itself of counterfeiting, and consequently a principal traitor within the law. It would follow from these views, that if within the power conferred by the clauses of the constitution above quoted, could be drawn the power to punish a private cheat effected by the means of a base dollar, that power certainly could not be deduced from either the common sense or the adjudicated meaning of the language used in the constitution, or from any apparent or probable conflict which might arise between the federal and state authorities, operating each upon these distinct characters of offence. If any such conflict could be apprehended, it must be from some remote, and obscure, and scarcely comprehensible possibility, which can never constitute an objection to a just and necessary state power. The punishment of a cheat or misdemeanor practised within the state, and against those whom she is bound to protect, was peculiarly and appropriately within her functions and duties, and it was difficult to imagine an interference with those duties and functions which would be regular or justifiable.(a)

§ 218. The next grant of power is, "To establish post offices and post roads." There has not as yet, as we are aware, been any decision upon the question as to whether this power is exclusive in congress, or concurrent in the states. Some deem it concurrent, and that upon the ground that there is nothing in the constitution, or in the nature of the thing itself, which may not be exercised by both governments at the same time, without prejudice or interference. But Mr. Rawle is of the opinion that this power is exclusive in congress, so far as it relates to the conveyance of letters. Mr. Justice Story deems it a question of but little importance, as it

(a) See also Chess v. State, 1 Blackf. 198. C. C. 508. State v. Tutt, 2 Bailey, 44.

State v. Antonio, 3 Wheeler White v. Commonwealth, 4 Bin.

is admitted on all sides, that it can be exercised only in subordination to the power of congress even if it be concurrent in the states; and that is highly improbable that any state will attempt any exercise of the power, considering the difficulty of carrying it into effect without the co-operation of congress.(a)

§ 219. The next power of congress is, "To promote the progress of science, and the useful arts, by securing for limited times, to authors and inventors the exclusive right to their respective writings and discoveries." It has not yet been judicially determined whether this power is exclusive or concurrent; but it has been supposed that states may legislate upon this subject, provided their acts do not contravene the acts of congress on the same subject, and there is but little doubt that, exclusive of authors and inventors, states have power to grant exclusive rights to the possessor or introducer of an art or invention not claimed under a right as inventor, but introduced from abroad.(b)

§ 220. The next power of congress is, "To constitute tribunals inferior to the supreme court." This power, from its very nature, must of necessity be exclusive, as no one but the federal legislature, acting as the only legally constituted legislative body of the Union can constitutionally create a judicial tribunal for the federal government, of which it is the only legally constituted representative, so far as its creative power is concerned.

$221. The next powers granted to congress are: "To define and punish piracies and felonies committed on the high seas, and offences against the law of nations." Whether this power is exclusive or concurrent, is not yet determined. "To declare war, grant letters of

(a) Story on Constitution, sec. 1145.

(5) See Livingston v. Van Ingen, 9 J. R. 507.

marque and reprisal, and make rules concerning capures on land and water." This power must be regarded as exclusive in congress, and so far as declaring war and granting letters of marque and reprisal, the states are expressly prohibited by another clause in the constitution. "To provide and maintain a navy." This clause has received no judicial construction. "To make rules for the government and regulation of the land and naval forces." This, as well as the former, probably may be regarded as exclusive.

"To provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions." No judicial construction has been put on this clause, as we are aware of.

§ 222. The next grant of power is, "To provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively the appointment of the officers, and the authority of training the militia according to the discipline prescribed by congress." It is supposed that where congress does not exercise this power by acting under it, the power is concurrent in the states; and that under such circumstances they might act to the utmost extent of sovereignty. But the governing the militia when in the actual service of the United States, must be construed as exclusive. State courts-martial may inflict, but cannot add to or diminish the punishment inflicted by acts of congress upon military delinquents.(a)

§ 223. The next grant of power is, "To exercise exclusive legislation in all cases whatsoever, over such district, (not exceeding ten miles square,) as may by cession of particular states, and the acceptance of con

(a) Houston v. Moore, 5 Wheat. 1; Story on Const. sec. 1209, and cases there cited.