Page:Federal Reporter, 1st Series, Volume 7.djvu/675

 ESX FABTB HOUaSTOK. C&3 �section of the General Statutes was expressly Buperseded by the act of 1869, and the element of an intent to defraudwas left out, 80 that the offence made punishable bythe laws of Vermont was the passing such tiounterfeit bill, knowing it to be counterfeited, precisely the sainie offence made punishable by the law of the United States. The material allegations of an indictment are those whieh set forth the charges whioh, are contrary to the law and make up the offence, and not. thoBe which charge things not contrary to the law, however morally wrong they may be, and which are not necessary to constitute the offence. A plea of not guilty to this indictr, ment would only put in issue the passing the counterfeit bill knowing it to be such, and the plea of giiilty only ooufessed as much. The relator, theref ore, stands convicted in the etate court of precisely an offence cognizable under the authority of the United States, and is restrained of his liberty under that conviction. �Thero are respectable opinions and weighty authorities which hold that in the United States the^e are two govem- ments,— 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 sanie offence, against each, for which punishment may be inflicted by each, and that the safety of the aoeused from excessive punishment under the two Systems lies in the par- doning power, and in the benignant spirit with which the laws of each are administered. U. S. 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 examplee cited to show that the same offence may be punished by both are examples of that class. That the states cannot make crim- inal offences out of what the United States makes lawful, nor ageinst the laws of the United States, was well settled in Prigg v. Pennsylvania, 16 Pet, 539 ; The Moses Tnyhr, 4 Wall. ��� �