Page:Federal Reporter, 1st Series, Volume 8.djvu/916

902 FBDEBAL BEPOBTEB. �may be, and which are not necessary to constitute the ofifence. A plea of not guilty to this indictment would only put in issue the pass- ing the counterfeit bill knowing it to be such, and the plea of guilty only confessed as much. The relator, therefore, stands convioted in the state court of precisely an offence cognizable under the authority of the United States, and is restrained of his liberty under that con- viction. �There are respectable opinions and weighty authorities which hold that in the United States there are two govemments, — the United States, within the sphere marked out by the constitution, and the several states, — and that the same act may be an offence, and some of them that it may be the same offence, against each, for which punishment may be inflicted by each, and that the safety of the accused from excessive punishment under the two Systems lies in the pardoning power, and in the benignant spirit with which the laws of each are administered. United States v. Wells, 7 Am. Law Eeg. 424; Mr. Justice Daniell in Fox v. Ohio, 5 How. 410 ; Mr. Justice Johnson in Houston v. Moore, 5 Wheat. 1. �That the same act, constituting different criminal offences, may be punished for one under the United States and for another under the state, cannot, under the authorities before cited, well be doubted, and most of the examples cited to show that the same offence may be punished by both, are examples of that class. That the states can- not make criminal offences out of what the United States makes law- ful, nor against the laws of the United States, was well settled in Prigg v. Pennsylvania, 16 Pet. 539 ; The Moses Taylor, 4 Wall. 411 ; and other cases before cited. The provision in the constitution pro- hibiting putting twice in jeopardy for the same offence was for the protection of the people from oppression. Houston v. Moore, 5 Wheat. 1. It may be said that this only applied to the tribunals of the United States; but if so, it is a restraint of the courts under the laws of oongress. Under it congress could not make the same offence punishable twice. And if congress could not do this directly, it could not indirectly, by creating an offence and leaving the state to punish it once, and providing by its own laws to punCsh it again. �This offence appears to be one over which the state court had no jurisdiction, and the relator is restrained of his liberty without war- rant of law. The next question is whether he can be relieved in this mode. �In 1 867 the writ of haheas corpus from the courts and judges of the United States was extended to persons in custody, in violation of the ��� �