author: Mr. Justice DANIEL

text:
    The United States, Plaintiffs, v. Peter Marigold.
    On the 3d of March, 1825, Congress passed an act (4 Stat: at Large, 121) providing for the punishment of persons who shall bring into the United States, with intent to pass, any false, forged, or counterfeited coin; and also for the punishment of persons who shall pass, utter, publish, or sell any such false, forged, or counter-' feited coin.
    Congress had the constitutional power to pass this law. Under the power to regulate commerce, Congress can exclude, either partially or wholly, any subject falling within the legitimate sphere of commercial regulation; and under the power to
    ' coin money and regulate the value thereof, Congress can protect the creature and object of that power.
    The doctrines asserted’by this court in the case of Fox v. The State of Ohio (5 Howard, 433) are not inconsistent with that now maintained. .
    This case came up from the Circuit Court of the United States for the Northern-District of hew York, upon a certificate of division in opinion between the judges thereof. -~.
    The record in the case is so very short, that the whole of it may be inserted.
    “ United States of America,

      Northern District of New York, ss.

      “ At a Circuit Court of the United States, begun-and held at Albany, for the Northern District of New York, in the Second Circuit, on the third Tuesday of October, in thev year of our Lord 1848, and in the seventy-third year of American Independence.

      “ Present, the Honorable Samuel Nelson and Alfred Conk-ling, Esquires.
    ■ “ The United States of America v. Peter Marigold.

      “ State of the Pleadings.

      “ This is an indictment against the defendant,..charging him, under the twentieth section of the act of Congress entitled ‘ An act more effectually to provide for the punishment of certain crimes against the United States, and for other purposes,’ approved March 8, 1825, —
    “ 1st. With having brought into the United States, from a foreign place, with intent to pass, utter, publish, and sell as true, certain false, forged, and counterfeit coins; made, forged, and counterfeited in the resemblance and.similitude of certain gold and silver coins of the línited States, coined-at the mint, he knowing the same to be false, forged, and counterfeit, and intending thereby to defraud divers persons unknown.
    “ 2d. With having uttered, published, and passed such counterfeit coins, with intent to defraud, &c.

      “ To this indictment the defendant demurs, and George W. Clinton, .attorney of the United States for the said district, who prosecutes in this behalf, joins in demurrer.
    “ This cause coming on to be argued at this term, the following questions occurred: -—
    “ 1st. Whether Congress, under and by the-Constitution, had power and authority to enact so much of the said twentieth section of the said act as relates to bringing into the United States counterfeit coins.
    “ 2d. Whether Congress, under and by virtue of the Constitution, had power to. enact so much of the said twentieth section as, relates to uttering, publishing, passing, and selling of the counterfeit coins therein specified.
    “ On which said several questions the opinions of the judges were opposed.
    “ Whereupon, on motion' of the said attorney, prosecuting for the United States’ in this behalf, that, the points on which the disagreement has happened may, during the term, be stated-under the direction of the judges, and certified under the seál of the court to the Supreme Court, to be finally decided, — it is ordered, that the foregoing state of the pleadings and statement of the points upon which the disagreement has happened, which is made under the direction of the judges, be certified, according to the request of the attorney, prosecuting as aforesaid, and the law in that case made and provided.”
    The case came up to this court upon this certificate.
    The clauses in the Constitution of the United States and the act of Congress were the following.
    By the fifth and sixth clauses of the eighth section of the first article of .the Constitution, it is declared that Congress shall have power, among other things, “ to coin money, reguláte the value théreof 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.” 1 Statutes at Large, 14.
    By the twentieth , section of the Crimes Act of 3d March, 1825 (4 Statutes at Large, 121), it is enacted, “ That if any person or persons shall falsely make, forge, or counterfeit, or cause or procure to be falsely made, forged, or counterfeited, or willingly aid-or assist in falsely making, forging-, or counterfeiting, any coin .in the resemblance or similitude of the gold or silver coin which has been, or hereafter may be, coined at the mint of the United States, or in the resemblance or similitude of any foreign gold or silver coin which by law now is, or hereafter may be made, current in the United States ; or shall pass, utter, publish, or sell, or attempt to pass, utter, publish, or sellf or bring into the United States from any foreign place with, intent to pass, utter, publish, or sell, as true, any such false, forged, of counterfeited coin, knowing the same to be false, forged, or counterfeited, with intent to defraud any body politic or corporate, or any other person or persons whatsoever ; every person so offending shall be deemed guilty of felony, and shall on conviction thereof be punished by fine not exceeding five •thousand dollars, and by imprisonment and confinement to hard labor not exceeding ten years, according to the aggravation of the offence.”
    The case was argued by Mr. Johnson (Attorney-General), for the United States, and Mr. Seward, for the defendant.

      Mr. Johnson contended, that both questions should bé answered in the affirmative..
    1. Because, under the fifth clause of the eighth section of the first article of the Constitution, the power to coin money, regulate , the value thereof and of foreign coin, includes the power in question.
    ,2. • Because, if it does not, it is included in thé power to provide for the punishment of counterfeiting the securities and current coins Of the United States, in the succeeding clause of the same section. '
    3. Because, if the question was at any time a doubtful one, it is to be considered as settled by legislative And judicial precedents, as well upon these provisions as, with reference to this question, upon analogous provisions in the- Constitution.' 3 Story on Constitution, § 1118; Rawle, ch. 9, p. 163; The Federalist, No. 42; Act of 21st April, 1806 (2 Statutes at targe, 404); McCulloch v. State of Maryland, 4 Wheat. 401, 409, 416-419, 421.

      Mr. Seward contended that the whole question had been adjudicáted in the case of Fox A. The State of Ohio, 5 Howard, 433.
    The State of Ohio-had enacted a law, “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,” &c. 29 Ohio Stat. 136, quoted 5 Howard, 432. Malinda Fox was convicted, of passing, with fraudulent intent, a base and .counterfeit coin, in the similitude of a good and legal silver dollar. She brought a writ of error to. this court, on the ground of the unconstitutionality of the Ohio statute. The judgment was affirmed, nnd so the Ohio statute was sustained.
    This decision is conclusive that the portions of the law of Congress of 1825 now under consideration are unconstitutional, But this argument requires the following conditions to be established: —
    1. That the offence prohibited by this portion Of the act of Congress, and the offence forbidden by the Ohio statute, be identical.
    . 2. That the constitutionality of the Ohio law appears'to have been sustained upon the ground, not of a concurrent jurisdiction of the offence in the State and national governments, but on the ground of an exclusive jurisdiction residing in the State alone.
    3. That the principle thus decided was necessarily involved in that' case, and therefore the authority m that case is not obiter, but res adjudicata.

    That the coin in the Ohio case was legalized coin was as? sumed by the whole court, including Judge McLean. Daniel’s Opinion, 5 Howard, 432. McLean’s Opinion, 5 Howard, 436.
    I. The offences were identical under the two acts. In the Ohio statute, it was not-the “making, the forging, or the counterfeiting, or the aiding in making, forging, or counterfeiting the coin ” ; it was the “ putting, off counterfeit coin or coins, knowing them to be such.” Putting off in' the one case, and passing in the other,, are identical. Importing, or bringing in from other places, with intent to pass, is of the same character, as opposed to making, forging, or counterfeiting. And this is the test, as established by the Supreme Court. Fox v. Ohio, 5 Howard, 433.
    And there is yét another index in the test. It is the party to be directly affected by the fraud ; — in the one case, the government ; in the other, individuals: ■ And the act of Congress, of 1825 includes this very intent to defraud individuals, not the government.
    II. The constitutionality of the Ohio law appears to have been sustained upon the ground, .not Of a concurrent 'jurisdiction of the offence in the State and national governments, but on the. ground of an exclusive jurisdiction in the State.
    Nothing could be more direct or explicit than the language of the court (5 'Howard, 433): — “We think it manifest that the language of the Constitution, by its proper signification, is 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 sg created or adopted. The imposture of passing a false coin creates, produces, or alters nothing; it leaves the legal coin as it was,” &c.
    III.. The question was directly involved in.that case. Judge Daniel so held it. So did Judge McLean (5 Howard, 437): — “ And these powers must be incomplete, and in a great degree inoperative-, unless Congress can exercise the power to punish the passing of counterfeit coin.”
    But it was indispensably involved in that cáse/ The court could only obtain jurisdiction of the Ohio case on the ground that the Ohio law conflicted with the constitutional sovereignty of the United States. That conflict was the exact, the controlling question. If a question at all what were the boundaries of the respective jurisdictions, it was not incidental, but. material, essential. If you could now say that the jurisdictions are concurrent, you could equally say that the State had no jurisdiction at all. The whole qourse of reasoning, of logic, must be changed.
    What is obiter ? Judge McLean’s reasoning is conclusive, that the power must be exclusive in the States; since he shows that where it resides it must be exclusive.' 5 Howard, 438, 439.
    The views thus submitted are .sustained by the opinion of Conkling, Judge of the District Court of the United States for .the Northern District of New York, in the case of The United States v.-, Law Reporter, June, 1849, p. 90. And they are opposed by Brockenbrough, District Judge for.the Western District óf Virginia, in the cáse of Campbell v. United States, Law-Reporter, Vol. X. p. .400. But the learned judge only shows, that, as the precise questions had not been decided by the Supreme Court in a case where the indictment was for passing counterfeit coin, he felt himself at liberty to sustain indictments found under the act of 1825. The act of 1825 must be assumed to have been' known to the Supreme Court when they decided the cáse of Fox v. Ohio.
    The argument derived by Judge Brockenbrough from the analogy to the provision concerning the post-office is untenable; because in that case the Constitution did. not define the power of Congress, but left a full discretion; whereas, in-the case of coin, 'the Constitution defines the power of punishing counterfeiting, and limits it to the making of the spurious coin.
    The British statutes define two classes of offences in regard tp coin, — the making- ánd the passing; and the terms of the. Constitution adopt the former only.

      This distinction was recognized in the case of Fox v. Ohio. And Judge Brockenbrough admits it. _ And he concedes that the power to punish the passing is not derived from, any amplification of the term counterfeiting in the Constitution. Law Reporter, Vol. X. p. 404. But the Judge maintains that it is an implied power. /

    But the court forgets that the Constitution found all the States m possession of jurisdiction over private frauds ; and it is. to le inferred that it was thought that jurisdiction might best be left there. The question now is; hot whether it was wisely left there, but whether it was left there. The Judge (Brockenbrough) erred in assuming that the denial of jurisdiction to Congress in the case of Fox v. Ohio was obiter. On the contrary, the court expressly deny it, and argue upon the opposite assumption as one conceded, not in fact, but only for argument’s sake.
    The provision is wise as it -is now settled. Congress is to furnish a uniform currency for all the States, and is to punish the crime of forging it. But the multiplied ramifications of crime require that the courts of the several States should have power to punish frauds in commerce and traffic, as well when coin is the instrument. as in other cases. . The machinery of State police and penal jurisprudence is better adapted and more, effective.
   Mr. Justice DANIEL

delivered .the opinion of the court.

This is a certificate division of opinion from the Northern District of New York. ,

' The case, is clearly and succinctly stated in the following abstract from the record: —

‘rAt a Circuit Court of the United States, begun and held at Albany, for the Northern District of New York, in the Second Circuit, on the third Tuesday of October, in the year of our Lord 1848, and in the seventy-third year of American Independence.
“ Present, the Honorable Samuel Nelson and Alfred Conk-ling, Esquires.
“ The United States op America v. Peter Marigold.
State of the Pleadings.
“ This i» an indictment against the defendant, charging him, under the twentieth section of the act of Congress entitled ‘An act more effectually to provide for the punishment of certain crimes against the United States, and for other purposes,’ approved March 3, 1825, —
“ 1st. With having brought into the United States, from a foreign place, with intent to pass, utter, publish, and sell as true, certain false, forged, and -counterfeit ■ coins, made, forged, and counterfeited in the resemblance and similitude of certain gold and silver coins of the United States, coined at the mint, he knowing the same to be false, forged, and counterfeit, and intending-thereby to defraud divers persons unknown.
“ 2d. With having uttered, published, and passed such counterfeit coins, with intent to defraud, &c.
To this indictment the defendant demurs, and Géorge W. Clinton, attorney of the United States for the said district, who prosecutes in this behalf, joins in demurrer.
.“ This cause coming on to be argued at this term, the following questions occurred: —
“ First. Whether Congress, under and by the Constitution, had power and authority to enact so much of the said twentieth section of the said act as relates to bringing into the United States counterfeit coins.
“ Second. Whether Congress, under and by virtue of the Constitution, had power to enact so much of the said twentieth section as relates to uttering; publishing, passing, and selling of the counterfeit coins therein specified.
w On which said several questions, the opinions of the judges were opposed.
“ Whereupon, on motion of the said attorney, prosecuting for the United States in this behalf,, that the points on which the disagreement has happened may, during the term, be stated under the direction of the judges, and certified under the seal of the court to the Supreme Court, to be finally decided, — it is ordered, that the foregoing state of the pleadings, and statement of the points upon which the disagreement has happened, which is made under the direction of the judges, be certified, according to the request of the attorney, prosecuting as aforesaid, and the law in that case made and provided.”

The inquiry first propounded upon this record points, obviously, to the answer which concedes to Congress the power here ’drawn in question. Congress are, by the Constitution, vested with the power to regulate commerce with foreign nations ; and however, at periods of high excitement, an application of the terms “ to regulate commerce ” such as would-embrace absolute prohibition may have been questioned, yet, since the passage of the embargo and. non-intercourse laws, and the repeated judicial sanctions those statutes have received, it can scarcely, at this day, be open to doubt, that every subject falling within the legitimate sphere of commercial regulation may be partially or wholly excluded, when either measure shall be demanded by the safety or by Jhe important interests of the entire nation. Such exclusion cannot be limited to particular classes or descriptions of commercial subjects; it may embrace manufactures, bullion, coin, or any other thing. The power once conceded, it may operate on any and every subject of commerce to which the legislative discretion may apply it.

But the twentieth section of the act of Congress of March 3d, 1825, or rather those provisions of that section brought-to the view of Hhis court by the second question certified, are not properly referable to commercial regulations, merely as such; nor to considerations of ordinary commercial advantage. They appertain rather to the execution of an important trust invested by the Constitution, and to the obligation to fulfil that trust on the part of the government, namely, the trust and the duty of creating and maintaining a uniform and pure metallic standard of value throughout the Union. • The power of coining money and of regulating its value was delegated to Congress by the Constitution for the very purpose, as assigned by the framers of that instrument, of creating and preserving the uniformity and purity of such a standard of value ; and on account of the impossibility which was foreseen of otherwise preventing, the inequalities and the confusion necessarily incident to different, views of policy, which in different communities would be brought to bear on this subject. The power to coin money being thus given to Congress, founded on public necessity, it must carry with it the correlative power of protecting the creature and object of that power. It cannot be imputed to wise and practical statesmen, nor is it consistent with common sense, that they should have vested this high and exclusive authority, and with a view to objects partaking of the ihagnitúde of the authority itself, only to be rendered immediately vain and useless, as must have been the case had the government been left disabled and impotent as to the only means of securing the objects in contemplation.

If the medium which the government was authorized to create and establish could immediately be expelled, and substituted by one it had neither created, estimated, nor authorized, — one possessing no intrinsic value, — then the power conferred by the Constitution would be useless, — wholly fruitless of every end it was designed to accomplish. . Whatever functions Congress are, by the Constitution, authorized, to perform, they are, when the public good requires it, bound to perform; and on this principle, having emitted a circulating medium, a standard of value indispensable for the purposes of the community, and for the action of the government itself, they are accordingly authorized and bound in duty to prevent its debasement and expulsion, and the destruction of the general confidence and convenience, by the influx and substitution of a spurious coin in lieu of the constitutional currency. We admit that the clause of the Constitution authorizing Congress to provide- for the punishment of counterfeiting the securities and current coin of the United States does not embrace within its language the offence of uttering or circulating spurious or counterfeited coin (the term counterfeit, both by its etymology and common intendment, signifying the fabrication of a' false image or representation); nor do we think it necessary or regular to seek the foundation of the offence of circulating spurious coin, or for the origin of the' right to punish that offence, either in the section of the statute before quoted, or in this clause of the Constitution. We trace both the. offence and the authority to punish it to the power given by the Constitution to coin money, and to the correspondent and necessary power and obligation to protect and to preserve in its purity this constitutional currency for the benefit of the nation. Whilst we hold it a sound maxim that no powers should be conceded to the Federal government which cannot be regularly and legitimately found in the charter of its creation, we acknowledge equally the obligation to withhold from it no' power or attribute which, by the same charter, has been declared necessary to the execution of expressly granted powers, and to the fulfilment of clear and well-defined duties.

It has been argued, that the doctrines ruled in the case of Fox v. The State of Ohio are in. conflict with the positions just stated in the case before us. We can perceive ria such conflict, and think that any supposition of the kind' must flow from a misapprehension of one or of both of these cases. The case of Fox v. The State of Ohio, involved no question whatsoever as to the powers of the Federal government to coin money and .regulate its value 5 nor as to the power of ..that government to punish the offence of importing or circulating spurious coin; nór as to its power to punish for counterfeiting the current coin of the United States. That case was simply a prosecution for a private cheat practised by one citizen of Ohio, upon another, within the jurisdiction of the State, by means of a base coin in the similitude of a dollar, — an offence denounced by the'law of Ohio as obnoxious to punishment by confinement in the Státe Penitentiary. And the question', and the only one, brought up for the examination of this court was, whether this private cheat could be punished by the State authorities, on account of the immediate instrument of its perpetration having been a base coin, in the similitude of a dollar of the coinage of the United States.

The stress of the-argument of this court in that case was to show, that the right of the State to punish that cheat had not been taken from her by the express terms, nor by any.necessary implication, of the Constitution. It claimed for the State neither the power to coin money nor to regulatd the value of coin; but simply that of protecting her citizens against frauds committed upon them within her jurisdiction, and, indeed, as a means auxiliary thereto, of relying upon the true standard of the coin as established and regulated under the authority of Congress. In illustration of the existence of the right just mentioned in the State, and in order merely to show that it had not been taken from her, it was said that the punishment of such a cheat -did not fall within the express language of those clauses of the Constitution which gave to Congress the right of coining money and ,of regulating its value, or of providing for the punishment of counterfeiting the current coin. It was also said by this court, that the fact of passing or putting off a báse coin did not fall within the language of those clauses of the Constitution, for this fact fabricated, altered, or changed nothing, but left the coins, whether genuine or spurious, precisely as before. "But this court have nowhere said, that an offence cannot be committed against the coin-or currency of the United States, or against that constitutional power which is exclusively authorized for public uses to create that currency, and which for the same public uses and necessities is authorized and bound to preserve it; nor have they said, that the debasement of the coin would not be as effectually accomplished by introducing and throwing into circulation a currency which was spurious and simulated, as it would be by actually making counterfeits, — fabricating coin of inferior or .base metal. . On the contrary, we think that either of these proceedings would be equally in contravention of the right and of the obligation appertaining to the government to coin money, and tp protect and preserve it at the regulated or standard rate of value.

With the view of avoiding conflict between the State and Federal jurisdictions, this court in the case of Fox v. The State of Ohio have taken care to point out, that the same act might, as to its character and tendencies, and the consequences it involved, constitute an offence against both the State and Federal governments, and might draw to its Commission the penalties denounced by either, as appropriate to its character in reference tb each. We think this distinction sound, as we hold to be the entire doctrines laid down in. the case abovq mentioned, and regard them as being in no wise in conflict with the conclusions adopted in the present case.

We therefore order it to be certified to the Circuit Court of the United States for the Northern District of New York, in answer to the questions propounded by that court: —

■1st. That Congress had power and authority, under, the Constitution, to enact so much of the twentieth section of the act of March 3, 1825, entitled “ An act more effectually to provide for the punishment of certain crimes against the United States, and for other purposes,” as relates to bringing into the United States counterfeit coins.

2d. That Congress, under and by virtue of the Constitution, had power to enact so much of the said twentieth section as relates to the uttering, publishing, passing, and selling of the counterfeit coin therein specified.

Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Northern District of New York, and on the points or questions on which the judges of the said Circuit Court were opposed in opinion, and which were certified to this court for its opinion, agreeably, to the act of Congress in such case made and provided, and was argued by counsel. vOn consideration whereof, it is the opinion •of this court, — 1st. That Congress had power and authority, under the Constitution, to enact so much of the twentieth section of the act of 3d March, 1825, entitled An act more effectually tcf provide for the punishment of certain crimes against the United States, and for other purposes,” as relates to .bringing- into the United States counterfeit coins ; and 2d. That Congress, under and by virtue of the Constitution, had power to enact so much of the said twentieth section as relates to uttering, publishing, passing, and selling of the counterfeit coins therein specified. Whereupon, it is now here ordered and adjudged by this court, that it be so certified to the said Circuit Court.


source: Caselaw Access Project

author: Mr. Justice NELSON

license: Public Domain

text:
    Joseph Forsyth, Plaintiff in error, v. The United States.
    The Judiciary Act of 1789 made no provision for the revision, by this court, of judgments of the Circuit or District Courts in criminal cases; and the act of 1802 (2 Stat. at Large, 156) only embraced cases in which the opinions of the judges wee opposed in criminal cases. There is, therefore, no general law giving appellate jurisdiction to this court in such cases.
    But the act of Congress passed on the-22d of February, 1847 (Sess.Laws, 1847, chap. 17), providing that certain cases might be brought up from the Territorial courts of Florida to this court, included all cases, whether of civil or criminal jurisdiction.
    Under this act, this court can revise a judgment of the Superior Court of the District of West Florida in a criminal case, which originated in October, 1845, and was transferred to the District Court of the United States for the-Northern District of Florida.
    Proceeding, therefore, to revise the judgment, this court decides that the jurisdiction of the Territorial courts, of which the Superior Court was one, ceased on the erection of the Territory into a State, on the 3d of March, 1845. The proceedings before the court in which the indictment was found were, consequently; comm non. judice, and void.
    This case was brought up, by a writ of error, from the District Court of the United States for the Northern District of Florida.
    The facts in the case are sufficiently set forth in the opinion of the court.
   Mr. Justice NELSON

delivered the opinion of the court.

This is a motion by the Attorney-General, on behalf of the United States, to dismiss the writ of error for want of jurisdiction, it having been taken out in a criminal case 10 bring up a judgment on an indictment for cutting timber upon government lands.

The indictment was returned by the grand jury, at the October term, 1845, of the Superior Court of the District of West Florida, in the late Territory of Florida, in the County of Escambia, and was founded upon the act of Congress passed March 2, 1831, entitled- “An act-to provide for the punishment of offences committed in cutting, destroying, or removing live-oak and other timber or trees reserved for naval purposes.”

The prisoner was arrested by a bench warrant issued upon the indictment on the 5th of November, 1845: but was taken out of the custody of the marshal by virtue of a writ of habeas corpus issued from the Circuit Court of the State of Florida, at the November term, 1845, of that court, and discharged from the arrest.

He was afterwards arrested on an alias bench warrant, issued by the District Court of the United States for the Northern District of the State of Florida,-on the 7th of February, 1848; and at the March term thereafter of the court was arraigned, and pleaded not guilty.

• Previous to the trial, a motion was made on behalf of the prisoner to quash the indictment, on the ground, —

1. That it was found in the late Superior Court of the District of West Florida by a grand jury, impanelled at the October term, 1845. of said court, it being after the admission of the Territory of Florida into the Union as a State, and therefore that neither the court nor the grand jury thereof had jurisdiction over the oifence, or authority .to find the indictment.

2. That the act of Congress of March 2, 1831, under which the indictirient was found, prohibited the cutting of timber only on land reserved for the use. of the navy of the United States, and on none other.

This motion was denied, and the case ordered for trial.

The jury found the prisoner guilty, and assessed the value of the timber cut by him at sixty-one dollars. And thereupon the court pronounced judgment, that.he be imprisoned for one day, and pay a fine of two hundred and fifty dollars, and the costs of the prosecution, which were taxed at $ 299.27..

The .proceedings before us have been brohght up on a writ of error to this judgment; and the question is, whether there is any act of Congress conferring authority upon this court to review them' in this form, or in any other.

The Judiciary Act of 1789 (1 Stat. at Large, 73) made no provision for the revision of judgments of the Circuit or District Courts in criminal cases; and as the cases in which the appellate jurisdiction of this court can be exercised depend upon the regulation of Congress, it followed that no appeal or writ of error. would lie. United States v. Moore, 3 Cranch, 159; 7 Wheat. 38; Ex parte Kearney, 3 Peters, 201.

The act of Congress passed 29th April, 1802 (2 Stat. at Large, 156), which provided for a certificate to this court of the point, in case of a division of opinion in the Circuit Court, embraced cases in which the opinions were opposed in criminal as well as in civil trials; and since that act, questions of law in criminal cases have occasionally been the subject of examination here for the instruction of the courts below (Ibid., p. 159, § 6). United States v. Tyler, 7 Cranch, 285; The Same v. Wiltberger, 5 Wheat. 76; The same v. Smith, Ibid. 153; The Same v. Holmes, Ibid. 412; The Same v. Marigold, ante, p. 560.

There is no general law, therefore, upon which a revision of the judgment in this case can be maintained; and the only question is, whether, in a peculiar class of. cases, to which this belongs, a writ of error is specially provided for by the act of Congress passed February 22, 1847 (Sess. Laws, 1847, ch. 17). It is insisted, on the part of-the plaintiff in error, that the case is embraced in the eighth section of that act.

It is an act entitled “ An act to regulate the exercise of the appellate jurisdiction of the-Supreme Court in certain cases.” The previous sections of the act provide for the transfer of the records of. the proceedings, including the judgments and decrees of all cases not appropriately belonging to State jurisdiction, pend-. ing in the Superior Courts or Court of Appeals, in the Territory of Florida, on the 3d of March, 1845 (the date of her admission into the Union), into the District Court of the United States for the State of Florida; and also for the hearing and decision of all cases or writs of error and appeals that had before been brought into the Supreme Court of the United States under any existing law, and which were pending here at the period above mentioned; and further, for the bringing of writs of error and appeals in all cases of judgments and decrees which were pending at the period aforesaid, and were by the act transferred, .to the District Court, in which writs'of error or appeals had not, but might have been taken to this court if the Territory had not been admitted into the Union.

The eighth' section then provides, that in all cases pending in any Of the Superior Courts of the Territory or Court of Appeals on the 3d of March, 1845, not legally transferred to the State courts, and wh-ich the said Territorial courts continued to take cognizance of, and proceeded to hear and determine after that day, and which were claimed as still pending therein as courts of the United States; and in all cases of a Federal character and jurisdiction commenced in said Territorial courts after that day, and in which'judgments and decrees were rendered therein, the records and proceedings thereof, and the judgments and decrees therein, are hereby transferred to the United States District Court for the State of Florida; and'writs_of error and appeals may be taken" by either party to remove the judgments or decrees that have been or may be rendered in such cases into the Supreme Court of the United States, and such court may hear and determine such cases on such writ of error or appeal, and issue its mandate to such District Court, with a proviso that the writ of error or appeal shall be taken within one year from the passage of the act, or from the rendition of the judgment or decree, and with the further proviso, that nothing in the act shall be construed as affirpning or disaffirming the jurisdiction or authority of the Territorial judges to proceed in or to determine such cases after the 3d of March, 1845; but the same shall be referred to the Supreme Court for its decision in th.e matter.

We think it apparent, from this, reference to the provisions of the act of 1847, that Congress,- in respect to the peculiar class of cases particularly described in the eighth section, intended to give to either of the parties to the suit or proceedings the right to a revision by this court of the judgments or decrees rendered by the Territorial judges therein, without limitation as to the amount in controversy, or whether the case was of criminal or civil jurisdiction.

The previous sections had provided for the transfer of the records, judgments, and decrees into the United States District Court that .had been rendered in the Territorial courts before the Territory was admitted into the Union, and were pending in those courts át the time of the admission.; and in those cases the right of the party to bring up the judgments and decrees for revision on writs of error and appeals is specially restricted to those in which the right would have existed under the acts of Congress if the Territory had not been admitted into the Union, — in other words, if the Territorial system of government had continued. Under that system, the right of review by this court was limited to civil cases, and to those only where the amount in controversy exceeded $ 1,000.

But we find no such restriction in the eighth section of the act, which provides for the transfer of the records and proceedings in cases in which the judgments and decrees were rendered in these courts after the Territorial system had become superseded by the erection of the Territory into a State. That section declares, that in all cases pending in the Superior Courts and Court' of Appeals on the 3d of March, 1845, and which said courts continued to take cognizance of, and proceeded to determine after that day, and in all cases of Federal character and jurisdiction commenced in said courts after that day, and in which judgments or decrees were rendered, the records, <fcc., shall.be transferred to the District Court; and writs of error or appeals, may be taken by either party to remove the judgments or decrees, &c.

There can be no doubt but that the phraseology embraces all civil cases of the class mentioned; and we think it sufficiently comprehensive to include criminal cases also; and such was undoubtedly the object of the provision. Every part of the section shows that the principal design of providing for a revision of these proceedings was to procure the judgment of this court upon the question of jurisdiction of the Territorial judges after the erection of the Territory into a State; it having been insisted' by the parties against whom the proceedings were had, that their judicial functions ceased with the Territorial government. And in this view, the reason for including the criminal cases in the remedial law, of which these courts also took cognizance, is quite as strong as that which led to the provision in civil cases.

The peculiar situation of all the cases, civil and criminal, of which cognizance was taken after the termination of the Territorial government, and previous to the establishment, of the Federal courts, was supposed to make this special provision expedient, in order that the question of jurisdiction might be settled speedily, and in a way most convenient for the parties and at the least expense. These considerations applied with peculiar force to the criminal' cases in which convictions had taken place, as the prisoners were either undergoing the punishment of their offences, or were subject to its infliction.

We are of opinion, therefore, that the court has jurisdiction of the case to revise the judgment of the court below on error, and that the motion to dismiss must be denied.

It was agreed by the counsel, on the argument of the motion to dismiss, that, if we arrived at the conclusion that the court had jurisdiction, under the act of 1847, to revise the judgment of the court below on error, we should proceed to examine the case upon the merits, and make a final disposition of the same.

We have, accordingly, looked into the record for this purpose, and find that the prisoner was indicted at the October term, 1845, of the Superior Court of the District of West Florida, in the late Territory of Florida. The session began on the 3d day of October, at which time a grand jury were drawn and impanelled and sworn; and that on the 3d day of November following, during the same term, they came into court and presented the indictment in question against the prisoner, which was then and there received and filed in the court.

The indictment contained two counts, charging, substantially, the same offence, namely, the cutting of timber trees then and there standing and being on the government lands, the said lands being other than those lands which, before that time, had been reserved or purchased, in pursuance of law, for the use of the United States for supplying and furnishing therefrom timber for the navy, with intent to dispose of the same, &c.

The indictment was afterwards transferred from the Superior Court, in which it was found, together with other papers in the cause, in pursuance of the act of Congress of 1S47, to the District Court of the United. States for the Northern District of Florida, and filed therein; and at the January term, 1848, of that court, held at Tallahassee, the cause was docketed in said court, and ordered for trial at the next term thereof, to be held at Pensacola on the first Monday of March next, notice of which order was given to the prisoner. At this term, as we have already stated, in disposing of the motion to dismiss, the prisoner was arraigned, tried, and convicted, after a motion had been made,, and denied, to quash the indictment, on the ground that the court had no jurisdiction.

If will be perceived, that the proceedings were instituted in the Superior Court, in October,-1845, after the Territory of Florida was erected into a State, and the Territorial government had ceased; and that, pending the indictment in that court, and before the trial, the. cause was transferred to the District Court, in pursuance of .the act of 1847, and there tried, and the prisoner convicted!

We have, already held at this term, in the case of Hiram Benner and others v. Joseph Y. Porter (ante, p. 235), that the jurisdictipn of these Territorial courts ceased on the erection of the Territory into a State, on the 3d of March, 1845; and, consequently, the proceedings before the court in which the indictment was found were coram non judice, and void.

Whether Congress possessed the power to confer afterwards upon the United States District Court jurisdiction to arraign and try the prisoner on this indictment, thus giving effect to it ex post facto, we need not stop to inquire, as the.act of 1847 does not profess to confer any such authority. We have no doubt they possess no such power. An indictment upon which a prisoner can be held to answer must be found by a grand jury impanelled and sworn in pursuance of law, and before a court of competent jurisdiction.

The act of 18.47 provided simply for the transfer of those cases pending in the Superior Courts, and which those courts claimed to exercise jurisdiction over after the. Territorial government h'ad ceased, to the Federal District Court of the State; and for writs of error- or appeals to remove the judgments or decrees therein to this court for review, taking care, at the same time,, to guard against any construction that might be given to the act tending to affirm the jurisdiction, but referring the question to this court to be determined.

iior is there any provision in the eighth section conferring any special authority upon the District Court, in respect to criminal cases pending in the Superior Courts, the records and proceedings of which were directed to be transferred, to take up those that remained unfinished, and to proceed therein to trial and judgment. We refer to those criminal cases of which the Superior Courts took cognizance alter the Territorial government ceased, and with it the jurisdiction of these courts.

We do not doubt but that it was competent for Congress to have provided for the transfer of pending criminal cases, as well as civil, at the termination of the Territorial government, to the Federal ■ courts, with authority, to proceed therein, to a final disposition, the same as if the cases had originated in those courts. A provision of this kind is not only fit and proper, but one that should always be made in respect to all .the pending business remaining' in the courts at the change of governnlent.

But the case here is different. The section relates to cases pending in the courts that had taken cognizance of them, and proceeded therein, after it is alleged their jurisdiction had ceased. And hence we find no provision for taking up the unfinished cases after the transfer, and proceeding in the same to a final disposition.

We are satisfied, therefore, that the District Court had no jurisdiction to arraign and try the prisoner on the indictment previously'found in the Superior Court of the late Territory ot Florida, or to pronounce judgment thereon, and that the judgnent accordingly should be reversed, and the proceeding remit-.ed to the court below, with directions to quash the indictment and discharge the prisoner from his recognizance, or imprisonment, as the case may be.

The act of Congress passed March 2, 1831 (4 Stat. at Large, 472), upon which the indictment in this case is founded, has been before us at this term for consideration, in the- case of the United States v. Briggs, and in which we have held that an indictment in all respects corresponding with the present one was well warranted by the provisions of that act. It makes the cutting of trees or timber standing on any, lands belonging to the government, by any person, whether such lands be or be not reserved or purchased, in pursuance of law, for the use of the navy, with the intent to convert the same to his own use, a criminal offence, punishable by fine and imprisonment.

There is no distinction made between the acts of trespass in cutting the timber bn lands reserved and not reserved for the use of the navy. Each is made a misdemeanour, and subjected to the same penalty. There is no ambiguity in the act in this respect, or room for a different interpretation. Had the question in this case turned upon -the merits, we should not have entertained-a doubt upon it, Or have considered it open after the decision in the case already referred to.

The act of 1817 (3 Stat. at Large, 347) was nearly as comprehensive as the one in question. The only difference is, that there the offence of cutting on lands belonging to the government other than those reserved for the use of the navy-was limited to the cutting of live-oak or red-cedar timber; here it is enlarged to the cutting of live-oak or red-cedar' trees “ or other timber,” thereby removing the restriction in the act of 1817. In other respects, the two acts are substantially the same.

Order.

This cause came on to be heard on the transcript of the record from the District Court of the United States for the Northern District of Florida, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that thé judgment of the said District Court in this cause be, and the- same is hereby, reversed and annulled, for .the want of jurisdiction in that court, and that this cause be, and the same is hereby, remanded to the said District Court, with directions to quash the indictment and discharge the prisoner.


text:
    Ezekiel Simpson, Plaintiff in error, v. The United States.
    In error to the District Court of the United States for the Northern District of Florida.
   Mr. Justice NELSON

delivered the opinion of the court.

This is a writ of error, under the eighth section of the act of Congress passed February 22, 1847, to-bring up.the judgment of the United States District Court for the Northern District of Florida for review.

The indictment upon which the prisoner was convicted was founded upon-the act of Congress passed March 2, 1831, and the case; as appears from the record, agrees in all respects with the case of Forsyth v. The United States, just decided, and to the opinion in which we refer for our judgment in this case.

The motion on behalf of the Attorney-General to dismiss the writ of error for want of jurisdiction is denied, and the judgment .of the court below reversed, and the proceedings remitted to the court, with direction to ■ quash the indictment and discharge the prisoner from his recognizance, or imprisonment, as the cáse may be.

Order.

This causé came on to be heard on the transcript of the record from the District Court of the United States for the Northern District of Florida, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said District Court in this cause be, and t.he same is hereby, reversed and annulled, for the want of jurisdiction in that court, arid that this cause be, and the same is hereby, remanded to the said District Court, with directions to quash the indictment and discharge the prisoner.


text:
    Loftin Cotton, Plaintiff in error, v. The United States.
    In the preceding case of Forsyth v. The United States, this, co.urt decided that the act of Congress passed on the 22d of February, 1847 (Sess. Laws, 1847, chap. 17), gave jurisdiction to this court to review certain classes of cases brought up from the Territorial courts of Florida.
    A motion to dismiss one of these cases, for want of jurisdiction, must be denied.
    In error to the District Court of the United States for the Northern District of Florida.
   Mr. Justice NELSON

delivered the opinion of the court.

This is a motion on the part of the Attorney-General, to dismiss the writ of error for the want of jurisdiction.

The suit was brought by the United States against the defendant in the Superior Court of the District, of West Florida, in the late Territory pf Florida, for a trespass on government lands.

The declaration was filed in December term, 1844; and the plea of not guilty, in the vacation thereafter, on the 26th of March, 1845.

The cause remained pending in said court, or without any further proceedings therein, until the 15th of January, 1848, when the records and papers in the same were transferred to, and filed in, the' United States District Court for the Northern District of Florida, in pursuance of the act of the'22d 'of February, 1847 (Sess. Laws, ch. 17, § 8), and at the January term of the court, 1848, held at Tallahassee, it was ordered that the cause be-docketed and stand for trial at the. next March term of the said court, to - be holden at PensacolanbtíSe of which order was given to the defendant. At the March term, the defendant appeared, and on leave filed a demurrer to .the. declaration, which, after argument, was overruled, and the cause set down for trial on the plea of not guilty.

The jury found a verdict for the plaintiffs, and assessed, the damages at $.362.50, for which sum judgment was rendered, besides costs.

Several exceptions were taken by the counsel for the defendant to the ruling of the court at the trial, which are found in the record, and on which he relies for a reversal of the judgment on this writ of error.

We have already held, in the case of Forsyth v. The United' States, just decided, that a writ of error lies to the judgments in the peculiar class of cases described and provided for in the eighth section of the act of Congress passed 22d February, 1847, already referred to, without reference to the amount in controversy, and, as this case falls within that class, it follows that the court has jurisdiction to revise the judgment, and that the motion to dismiss must be denied.

The case not having been submitted by the counsel for a decision on the merits, as in the criminal cases just disposed of, it will remain on the docket for a hearing in its order.