the agent of another to make a contract with himself. Hence it would seem that the doctrine of ratification can have no application to such a case. If the entire instrument was a forgery, in the popular sense, it would require no argument to prove that a mere assent to or ratification of it in the hands of the forger would be a mere nudum pactum. But in law there is no distinction between a forgery in making and a forgery by altering. The altered instrument is not the contract of the maker, and in legal contemplation is as entirely a forgery as the other. If the alteration was not frauduleut, so that it did not destroy the instrument, or at least did not extinguish the debt, we can see how a subsequent assent to it would create a liability on the instrument as altered. Parties can alter their contract by mutual consent, and this requires no new con sideration, for it is merely the substitution of a new

cient consideration for the new. And what a party may assent to when done he may assent to afterward, so as to bind himself, if there be a consideration to support it. But where there has been a fraudulent alteration of a written contract, which not only destroys the instrument, but extinguishes the debt, it seems to us clear on principle that a subsequent assent to the alteration, given to the party who made it, without any new consideration, is in any view of the case a mere naked promise. McHugh v. Schuylkill Co., supra; Workman v. Wright, supra; Owsley v. Philips, supra.

tion was capable of ratification, this would, according to all the authorities, amount to a ratification or adoption, whichever it may be called. If the alteration was a mere spoliation by a third party, or if made by the holder by mistake or accident, or innocently, and without fraudulent intent, so that it did not destroy the note, or at least did not extinguish the debt, of which it was the evidence, it would not invalidate or affect the mortgage, which can only be discharged by the payment or extinction of the debt secured by it. In such case the question of ratification would be wholly immaterial. But suppose the alteration was fraudulently made, amounting in law to a forgery. The question remains, could this be subsequently ratified by Douglas, so as to make the note in its altered form his contract? The question whether a forgery is capable of being ratified, so as to create a liability on the forged instrument, in the absence of circum-coutract for the old one, and this is of itself a suffistances constituting an estoppel in pais, is one upon which there is almost as much conflict of authorities as upon that of burden of proof and presumption, already considered. Some of the cases holding the negative of the question place the doctrine upon grounds of public policy: others upon the ground that ratification involves the relation of agency, and that ratification can only be effectual when the act is done by the agent avowedly for or on account of the principal; that the very nature of ratification presupposes the act done for another, but without competent authority, and hence can have no application to a forgery, for a forger never acts, or assumes to act, for another; others put it upon the ground, that in the absence of any new consideration, the ratification or adoption of the forged instrument would be a mere nudum pactum. The cases holding a forgery capable of ratification take the ground that so far as considerations of public policy are concerned, the ratification of forgeries should stand on the same footing as that of other contracts, and should be held valid, unless made in consideration of compounding the felony, or for some other illegal consideration; that as to the want of authority it can make no difference whether the unauthorized act was or was not a forgery; that this want of authority is the very thing which the ratification cures, and to which the maxim applies, "Omnis ratihabitio retrotrahitur et mandato priori æquiparatur;" that the ratification is "dragged back and made equivalent to a prior command;" that a ratification is not a contract, but an adoption of one previously made in the name of the ratifying party, and requires no consideration. See Brook v. Hook, L. R.,,6 Exch. 98; McHugh v. Schuylkill Co., 67 Penn. St. 391; Shisler v. Vandike, 92 id. 447; Owsley v. Philips, 78 Ky. 517; Ferry v. Taylor, 33 Mo. 334; Workman v. Wright, 33 Ohio St. 405; Bank v. Crafts, 4 Allen, 447; Wellington v. Jackson, 121 Mass. 157; Hefner v. Vandolah, 62 Ill. 483; Forsyth v. Day, 46 Me. 176.

In the large majority of the cases usually cited in support of the proposition that a forgery can be ratified, it will be found that the question was presented in connection with circumstances creating an estoppel, or that there was in fact no fraudulent making or altering, but merely a lack of sufficient authority; and hence such cases are not in point. Where the ratification is made to a third party-the holder of the instrument, who was not a party to the forgery-we are not called upon to decide whether or not such ratification would create a valid liability on the instrument. All the authorities cited by appellant to the effect that a forgery may be ratified are of this class. But we have found no case where it has been held that a forged instrument can be ratified so as to give the forger himself a right of action upon it. It is legally impossible in such a case that the relation of principal and agent could exist between the parties, for one man cannot be

Order reversed.

HOW CORPORATE EXISTENCE ATTACKED
BY QUO WARRANTO.

A1

N abortive attempt to form a corporation can be overthrown by the sovereign power. Quo warranto is the remedy; but against what defendants to proceed--" aye, there's the rub" If the pretended corporation is of a private nature there appears to be perfect accord among the authorities that the pseudo corporation cannot be made defendant, for that would admit its existence, the very thing which the action or proceeding is instituted to call in question. People v. Railway Co., 15 Wend. 114; People v. Richardson, 4 Cow. 97, note, p. 109; Com. v. Central Pass. Ry. Co., 52 Penn. St. 500; People v. Cincinnati Gas Co., 18 Ohio St. 262; People v. Stanford (Cal.), 19 Pac. Rep. 693; Draining Co. v. State, 43 Ind. 236; Ang. & Ames Corp., § 756; Le Roy v. Cusacke, 2 Rolle, 113.

But in People v. Flint, 64 Cal. 49, the court appears to have held that the de facto corporation was a necessary party. The subsequent case in California overrules it if it can be said to hold this doctrine. The proceeding should be against the individuals who are assuming to act as a corporation. In People v. Railway Co., 15 Wend. 114, the court said: "If therefore the information in this case had for its object to oust the defendants from acting as a corporation, and to test the fact of their incorporation, it should have been filed against individuals."

It

In Draining Co. v. State, 43 Ind. 236, the court said: "This first paragraph was clearly bad. It is not against certain persons claiming to be a corporation, but against the corporation by its corporate name. is brought into court as a corporation to answer an allegation that it is not and never was a corporation. When a corporation is brought into court by its corporate name its existence is thereby admitted."

In People v. Stanford (Cal.), 19 Pac. Rep. 693, the court lay down the same rule: "It is well settled that a corporation cannot be sued as such and brought into court, and the action maintained against it, on the ground that it is not a corporation. If it is intended

to draw in question the franchise of the corporation, the proceeding must be against the individuals who usurp the franchise."

When however we approach the case of a municipal corporation the trouble commences. It is true there are several cases which hold that the existence of such a corporation cannot be assailed in a proceeding against the pretended corporation. Cheshire v. Kelly (Ill.), 116 Ill. 493; People v. Supervisors, 41 Mich. 647.

In Cheshire v. Kelly (reported in Illinois Reports under name of Cheshire v. People) the court said: "Inasmuch as the information proceeds upon the hypothesis that there is no corporation in law by the name of School District No. 9, it would have been impossible to make the corporation a party."

In People v. Supervisors the court declared that "there could be no proceeding against the new township, because that would admit it to be a corporation."

On the other hand, there are precedents and dicta and some square adjudications favoring the rule that the pseudo corporation is the proper party. In State v. Bradford, 32 Vt. 50, and People v. Nevada, 6 Cal. 143, the proceedings were against the void corporation. But the question went by default, and therefore the cases lack the essential elements of an authority, to-wit: deliberate judgment on a point brought to the attention of the court and passed upon. Leaning in the same direction is State v. Weatherby, 45 Mo. 17.

In People v. Riverside, 66 Cal. 288, the court appears to have decided the question, but the decision is unsatisfactory in its logic, and the court undoubtedly felt bound by the precedent in People v. Nevada. It was urged in People v. Riverside that bringing the action against the void corporation admitted its existence. The court replied: "The argument is not devoid of logical force, and unless the action given by the Code differs in this respect from that which existed at common law, the weight of authority is doubtless on that side; for it has been held in England and in this country that an information for usurping the franchise to be a corporation should be against the particular persons guilty of the usurpation, * * and since a city cannot exist in this State without incorporation, it is equally inconsistent to sue one as a corporation and at the same time deny its existence. But for this there is a precedent (People v. Nevada, 6 Cal. 143); and as no substantial right of any one can be prejudiced by following it, we think no good would result from not doing so; particularly as the object of the Code would be effected and justice promoted thereby."

This is a powerful argument (?) on principle. In a subsequent case the same court refused to follow the decision, but the pretended corporation attacked was a private and not a municipal corporation. People v. Stanford (Cal.), 19 Pac. Rep. 693. Referring to the prior case the court say: "The opinion shows great doubt in the mind of the court as to the correctness of the rule laid down. No reason is given for the statement that the Code changes the common law in respect to the proper mode of pleading, and we see none." But the court in this last case strongly inclines to the view that in the case of a municipal corporation it is proper to proceed against the pretended corporate body. They distinguish People v. Riverside on that ground. "That case differs from this however. It was an action to determine the validity of certain proceedings to incorporate the city of Riverside, and the particulars in which these proceedings were invalid were specifically set forth. It would seem to be proper in such case that the defendant, claiming to be a city under such proceedings, and acting thereunder as such, should be made a party in an

*

action to determine the validity thereof. In such a proceeding the trustees of the city could not be sued, as there could be no trustees if there were no city, and no individuals could be made parties as claiming to be a corporation."

Pray why could not the individuals be made parties as claiming to be a corporation? Do not all the residents of a city constitute in a broad sense the corporation? They act together as a municipal corporation. But of course, as in the case of all corparations, they must act us a corporation through agents. Nevertheless the persons claiming to act as a municipal corporation are all the residents, and not the particular persons in office. And why could not the trustees be sued? Because there are no trustees, it is said. For the same reason the pretended corporation could not be sued. Then comes the convincing argument which opens the wide chasm between the two cases. "In the case of a private corporation the rule must be entirely different. If no corporation exists, the parties who are claiming to be such can be proceeded against." Oh! Chillingworth, where art thou with thy logic now! No case appears to have gone down to bed rock where the proceeding is by information. In such a proceeding it is impossible to bring all of the residents of a large municipality before the court, for there is no rule authorizing the proceeding against a part for the whole as in equity actions, and as in all kinds of civil actions under the various codes in this country; and it is impossible to bring all of a large body upon the record as defendants. There is no corporation to proceed against. Therefore there would be no mode of assailing the void municipality unless some rule, analogous to that permitting a portion to be sued for all in civil actions, should be adopted. Now the rule which suggests itself as sound, logical and very fair to all parties interested, and certainly very reasonable, is that the people who assume to act as a municipal corporation should be attacked for such an assumption when unauthorized, by a proceeding against the pretended governing body, whom they have chosen to represent them in municipal affairs in the management of the pseudo corporation. The persons composing such governing body are proceeded against, not on the ground that they are in fact the governing body, but because the people in their pretended corporate capacity have named them as their representatives. They of all persons in the community would best represent the residents in an assault upon the corporation, for being elected as governing officers of the corporation, they would naturally defend its existence. The qualification of the rule permitting a portion to be sued for all would be observed in the adoption of such a rule in the case of proceeding by information; for the persons brought upon the record would fairly represent the interest or right involved so that it would be fully and honestly tried. Smith v. Swarmstedt, 16 How. 288-303.

This brings us to the cases in which it has been held proper to proceed against the governing body. In State v. Board of Commissioners (N. J.), 14 Atl. Rep. 560, the information was filed against the governing body. Whether that body constituted the corporation is uncertain from the case. If they did, then the proceeding was against the pretended corporation. The language of the court might lead to the conclusion that such was the fact. The court said on this point: "The principal ground relied upon to support the demurrer was that the writ had not gone against the proper party, it being insisted that the alleged usurping corporation could not be made a party, as if the information set forth the truth there was and is no such corporate body. But this exception is hypercritical. ** *The cases with respect to informations against municipalities do not appear to settle

definitely the course to be pursued; but we think the method adopted in the present instance, as far as regards the question as to parties to the procedure is the proper one. This was the course pursued in the case of State v. Village of Bradford, 32 Vt. 50, it which case the corporate body was one of the defendants, and a judgment was rendered dissolving such de facto corporation." But another portion of the opinion indicates that the proceeding was against the governing body, as the governing body, and not as constituting the corporation. "As the body of the people cannot be made parties as individuals, it would seem a necessity to treat the de facto ruling body established by themselves as their legal representative."

In State v. Borough of Somers Point (N. J.), 10 Atl. Rep. 377, the information was filed against the governing body, but they appear to have constituted the corporation.

In Cheshire v. People, 116 Ill. 493, the proceeding was against the governing body, it being claimed that the corporation had no existence. Said the court: The only persons, if that hypothesis be true, to be brought before the court are those assuming to act in the capacity of directors of such district. The persons assuming to act as directors of the district were therefore the only parties that need be before the court to test the validity of the organization of the district." See People v. La Rue (Cal.), 8 Pac. Rep. 84.

647:

only be incidentally passed upon. Said the court on this point, in People v. Supervisors, 41 Mich. "No doubt informations would lie against the several town officers for usurping franchises, but that would not lead to any judgment directly reaching the whole controversy in one record." In the early case of Rex v. Saunders, 3 East, 119, the court ruled that quo warranto would not lie against defendant, who claimed to be an alderman of Taunton, an extinct municipal corporation, Lord Ellenborough, C. J., saying: "Here are no civil rights in controversy which would warrant the court to interfere by their own authority; but what was claimed was a mere nullity. There was no such office in existence, and therefore no ground for our interference."

To same effect are State v. Lehre, 7 Rich. (S. C.) 234-324; State v. North, 42 Conn. 79. See also State v. Weatherby, 45 Mo. 17, and People v. Stanford (Cal.), 19 Pac. Rep. 697, where the court say: "An allegation that a person had usurped the office of supervisor of the county of A. would be inconsistent with one that there was no county of A."

But statutory enactments have enlarged the scope of the remedy by quo warranto in this country, and the general drift of adjudications is in the direction of allowing the proceeding where no office in fact exists, because the corporation of which it is claimed to be an office has no legal existence, or where no office exists for any other reason. People v. Carpenter, 24 N. Y. 86; State v. Parker, 25 Minn. 215; People v. Su

People v. Riordan (Mich.), 41 N. W. Rep. 482; Attorney-General v. Amos (Mich.), 27 id. 571; People v. Maynard, 15 Mich. 463; Attorney-General v. Hollihan, 29 id. 116; Attorney-General v. Hatch, 26 N. W. Rep. 860; People v. Bennett, 29 Mich. 451; S. C., 18 Am. Rep. 451.

It will be noticed that in all the cases, with the exception of the California cases, in which it has been held proper to proceed against the pretended corpora-pervisors, 41 Mich. 647; Com. v. Fowler, 10 Mass. 290; tion or the governing body, the proceeding has been by information. But in many States the writ of quo warranto has been abolished, and a civil action substituted in its place. In such a jurisdiction there could be no objection to proceeding against the individuals residing within the pretended corporation, for in actions a portion may be sued and defend for all. This right to sue a part for all destroys the only foundation on which rest the cases holding it proper to proceed against the pseudo corporation or its governing body. The only reason for such a rule is that which is thus stated in People v. Cincinnati Gas Co., 18 Ohio St. 262 : "Where the inhabitants of a city are defendants the difficulty in proceeding against them individually might perhaps create an exception to the general rule.”

In many States in which a civil action has been substituted for the proceeding by information the statute gives the action against the “persons offending," wheu an association or number of persons are acting as a corporation without being legally incorporated. Under such a statute there can be no question about the necessity of proceeding against all the individuals. There is no such statute in California.

The English authorities are far from satisfactory. In King v. Amory, 2 T. R. 565, the information called upon the mayor and citizens to show by what authority they assumed to be a corporation. But in King v. City of Chester, cited in this case, the proceeding seems to have been against the pretended corporation. Still, as judgment went by default, the case cannot be regarded as an authority. And in King v. London the court said: "Judgment of ouster is rendered against individuals for unlawfully assuming to be a corporation. It is rendered against corporations for exercising a franchise not authorized by their charter."

The question of the existence of a municipal corporation can be raised in a quo warranto proceeding against a person assuming to hold an office in such pretended corporation, on the ground that there being no such corporation, there is no office to be held. This is not the rule in all the States, but has the support of practically all the cases. Still the judgment will not annul the corporation. It will merely decide that there is no office. The validity of the corporation will

See also Reg. v. Lloyd, 6 L. T. Rep. (N. S.) 610; People v. Briggs, 50 N. Y. 553.

It is said in the decisions holding that quo warranto will not lie in such a case, that there being no office, the claim to hold the office is of no effect. But the trouble is that third persons may be seriously injured by trusting to the apparently valid claim. Whether an office has any legal existence is often a more difficult problem to solve than whether a person is a de jure officer; and in the case of mistake as to the existence of the office the citizen has not the protection which the law extends to him in the case of a de facto officer, for it has been repeatedly held that there can be no officer de facto when there is no office de jure. There is therefore stronger reason for testing the legal existence of an office by quo warranto than for litigating the right of two claimants to an office in that way. The latter litigation practically concerns only the immediate parties to it, while the former interests the entire public, who, until the question is settled by the judgment of a court, must proceed at their peril. The court in State v. Parker, 25 Minn. 215, the distinction between the claim to an office entirely unknown to the law, and one which, while it may not exist in the particular instance, is known to the law, is clearly stated. "If a person should assume to set up and exercise an office not known to the law at all, in which case his acts would not have any semblance of legal effect, the case might be different. But we have very little doubt upon the statute, that where a man assumes to hold and exercise the duties of an office known to the law, and the duties and powers of which are defined by law, the action will lie to test the question whether the office is authorized within the particular district for which he assumes to hold and exercise it."

We will venture the following propositions:
First. If the pretended corporation is not a munic-

ipal or quasi municipal corporation, the proceeding will lie against the persons claiming to be a corporation, and not against the pseudo corporation.

Second. In other cases the people must be made parties if possible, and they are the proper parties in jurisdictions where a portion of the defendants can be proceeded against for all.

Third. Otherwise the members of the pretended governing body of the pretended corporation are proper parties.

Fourth. There is authority for proceeding against the pretended corporation as a corporation, although the effect is to assert and deny its existence in the same breath.

Fifth. Quo warranto will lie against a person assuming to hold an office that has no existence, and in this manner corporate existence may be indirectly assailed. GUY C. H. CORLISS. GRAND FORKS, DAK.

UNITED STATES SUPREME COURT AB-
STRACT.

CONTEMPT-POWER TO PUNISH SUMMARILY-WHAT CONSTITUTES.-The Revised Statutes of the United States, section 725, gives the Federal courts power to punish contempts of their authority, inter alia, in cases of "misbehavior of any person in their presence, or so near thereto as to obstruct the administration of justice." Held, that while the same offense is embraced in Revised Statutes, section 5399, and punishable by indictment, that method of procedure is not exclusive, and the court may proceed summarily, under section 725. The act of 1789 did not define what were contempts of the authority of the courts of the United States in any cause or hearing before them, nor did it prescribe any special procedure for determining a matter of contempt. Under that statute the question whether particular acts constituted a contempt, as well as the mode of proceeding against the offender, was left to be determined according to such estab lished rules and principles of the common law as were applicable to our situation. The act of 1831 however materially modified that of 1789, in that it restricted the power of the courts to inflict summary punishments for contempt to certain specified cases, among which was misbehavior in the presence of the court, or misbehavior so near thereto as to obstruct the administration of justice. Ex parte Robinson, 19 Wall. 505, 511. And although the word "summary "" was, for some reason, not repeated in the present revision, which invests the courts of the United States with power to punish, by fine or imprisonment, at the discretion of the court, contempts of their authority" in certain cases defined in section 725, we do not doubt that the power to proceed summarily for contempt in those cases remains, as under the act of 1831, with those courts. It was, in effect, so adjudged in Ex parte Terry, 128 U. S. 289. (2) Attempts by persuasion and offer of money to deter a witness duly subpœnaed from testifying in behalf of the government, such attempts being made in the witness-room, immediately adjacent to, and in the hallway of the courtand while the court was in session, constitute misbehavior in the presence of the court, punishable under section 725. There may be misbehavior in the presence of a court amounting to contempt that would not ordinarily be said to obstruct the administration of justice. So there may be misbehavior, not in the immediate presence of the court, but outside of and in the vicinity of the building in which the court is held, which, on account of its disorderly character, would actually interrupt the court, being in session, in the conduct of its busiuess, and consequently obstruct the administration of justice. Flores, we have seen, was

room,

in attendance upon the court, in obedience to a subpœna commanding him to appear as a witness in behalf of one of the parties to a case then being tried. While he was so in attendance, and when in the juryroom, temporarily used as a witness-room, the appellant endeavored to deter him from testifying in favor of the government, in whose behalf he had been summoned, and, on the same occasion, and while the witness was in the hallway of the court-room, the appellant offered him money not to testify against Goujon, the defendant in that case. Was not this such misbehavior upon the part of the appellant as made him liable, under section 725, to fine or imprisonment, at the discretion of the court? This question cannot reasonably receive any other than an affirmative answer. The jury-room and hallway where the misbehavior occurred, were parts of the place in which the court was required by law to hold its sessions. It was held in Heard v. Pierce, 8 Cush. 338, 341, that "the grand jury, like the petit jury, is an appendage of the court, acting under the authority of the court, and the witnesses summoned before them are amenable to the court, precisely as the witnesses testifying before the petit jury are amenable to the court." Bacon, in bis Essay on Judicature, says: "The place of justice is an hallowed place; and therefore not only the bench, but the foot-pace and precincts and purprise thereof, ought to be preserved without scandal and corruption." We are of opinion that within the meaning of the statute, the court, at least when in session, is present in every part of the place set apart for its own use, and for the use of its officers, jurors and witnesses; and misbehavior anywhere in such place is misbehavior in the presence of the court. It is true that the mode of proceeding for contempt is not the same in every case of such misbehavior. Where the contempt is committed directly under the eye or within the view of the court, it may proceed upon its own kuowledge of the facts, and punish the offender, without further proof and without issue or trial in any form (Ex parte Terry, 128 U. S. 289, 309), whereas in cases of misbehavior of which the judge cannot have such personal knowledge, and is informed thereof only by the confession of the party, or by the testimony under oath of others, the proper practice is, by rule or other process, to require the offender to appear and show cause why he should not be punished. 4 Bl. Com. 286. But this difference in procedure does not affect the question as to whether particular acts do not, within the meaning of the statute, constitute misbehavior in the presence of the court. If, while Flores was in the court-room, waiting to be called as a witness, the appellant had attempted to deter him from testifying on behalf of the government, or had there offered him money not to testify against Goujon, it could not be doubted that he would have been guilty of misbehavior in the presence of the court, although the judge might not have heen personally cognizant at the time of what occurred. But if such attempt and offer occurred in the hallway just outside of the court-room, or in the witness-room, where Flores was waiting, in obedience to the subpoena served upon him, or pursuant to the order of the court, to be called into the court-room as a witness, must it be said that such misbehavior was not in the presence of the court? Clearly not. We are of opinion that the conduct of the appellant, as described in the final order of the District Court, was misbehavior in its presence, for which he was subject to be punished without indictment, by fine or imprisonment, at its discretion, as provided in section 725, Revised Statutes. May 13, 1889. Ex parte Savin. Opinion by

Harlan, J.

CRIMINAL LAW HABEAS CORPUS -FORMER CONVICTION.-(1) The first question to be considered is

error in law, but a case of denying to a person a constitutional right. And where such a case appears on the record the party is entitled to be discharged from imprisonment. The distinction between the case of a mere error in law, and of one in which the judgment is void, is pointed out in Ex parte Siebold. 100 U. S. 371, 375, and is illustrated by the case of Ex parte Parks as compared with the cases of Lange and Snow. In the case of Parks there was an alleged misconstruction of a statute. We held that to be a mere error in

cases of Lange and Snow there was a denial or invasion of a constitutional right. A party is entitled to a habeas corpus, not merely where the court is without jurisdiction of the cause, but where it has no constitutional authority or power to condemn the prisoner. As said by Chief Baron Gilbert, in a passage quoted in Ex parte Parks, 93 U. S. 18, 22: “If the commitment be against law, as being made by one who had no juris

whether, if the petitioner had been convicted twice for the same offense, and the court erred in its decision, he could have relief by habeas corpus. The objection to the remedy of habeas corpus of course would be that there was in force a regular judgment of conviction, which could not be questioned collaterally, as it would have to be on habeas corpus. But there are exceptions to this rule which have more than once been acted upon by this court. It is firmly established that if the court which renders a judgment has not jurisdiction to render it, either because the proceed-law, the court having jurisdiction of the case. In the ings or the law under which they are taken are unconstitutional, or for any other reason, the judgment is void, and may be questioned collaterally, and a defendant who is imprisoned under and by virtue of it may be discharged from custody on habeas corpus. This was so decided in the cases of Ex parte Lauge, 18 Wall. 163, and Ex parte Siebold, 100 U. S. 371, and in several other cases referred to therein. In the case of In re Snow, 120 U. S. 274, we held that only one indict-diction of the cause, or for a matter for which by law ment and conviction of the crime of unlawful cohabitation, under the act of 1882, could be had for the time preceding the finding of the indictment, because the crime was a continuous one, and was but a single crime until prosecuted; that a second conviction and punishment of the same crime for any part of said period was an excess of authority on the part of the District Court of Utah; and that a habeas corpus would lie for the discharge of the defendant imprisoned on such conviction. In that case the habeas corpus was applied for at a term subsequent to that at which the judgment was rendered; but we did not regard this circumstance as sufficient to prevent the prisoner from having his remedy by that writ. It is true that in the case of Snow we laid emphasis on the fact that the double conviction for the same offense appeared on the face of the judgment; but if it appears in the indictment, or anywhere else in the record (of which the judgment is only a part), it is sufficient. In the present case it appeared on the record in the plea of autrefois convict, which was admitted to be true by the demurrer of the government. We think that this was sufficient. It was laid down by this court in Re Coy, 127 U. S. 731, 758, that the power of Congress to pass a statute under which a prisoner is held in custody may be inquired into under a writ of habeas corpus as affecting the jurisdiction of the court which ordered his imprisonment; and the court, speaking by Mr. Justice Miller, adds: "And if their want of power appears on the face of the record of his condemnation, whether in the indictment or elsewhere, the court which has authority to issue the writ is bound to release him;" referring to Ex parte Siebold, 100 U. S. 371. In the present case, it is true, the ground for the habeas corpus was, not the invalidity of an act of Congress under which the defendant was indicted, but a second prosecution and trial for the same offense, contrary to an express provision of the Constitution; in other words, a constitutional immunity of the defendant was violated by the second trial and judgment. It is difficult to see why a conviction and punishment under an unconstitutional law is more violative of a person's constitutional rights than an unconstitutional conviction and punishment under a valid law. In the first case, it is true, the court has no authority to take cognizance of the case; but in the other it has no authority to render judgment against the defendant. This was the case in Ex parte Lange, where the court had authority to hear and determine the case, but we held that it had no authority to give the judgment it did. It was the same in the case of Snow; the court had authority over the case, but we held that it had no authority to give judgment against the prisoner. He was protected by a constitutional provision, securing to him a fundamental right. It was not a case of mere

no man ought to be punished, the court are to discharge." This was said in reference to cases which had gone to conviction and sentence. Lord Hale laid down the same doctrine in almost the same words. 2 Hale P. C. 144. And why should not a rule prevail in favorem libertatis? If we have seemed to hold the contrary in any case, it has been from inadvertence. The law could hardly be stated with more categorical accuracy than it is in the opening sentence of Ex parle Wilson, 114 U. S. 417, 420, where Mr. Justice Gray. speaking for the court, said: "It is well settled by a series of decisions that this court, having no jurisdiction of criminal cases by writ of error or appeal, cannot discharge on habeas corpus a person imprisoned under the sentence of a Circuit or District Court in a criminal case, unless the sentence exceeds the jurisdietion of that court, or there is no authority to hold him under the sentence." This proposition, it is true, relates to the power of this court to discharge on habeas corpus persons sentenced by the Circuit and District Courts; but, with regard to the power of discharging on habeas corpus it is generally true that after conviction and sentence the writ only lies when the sentence exceeds the jurisdiction of the court, or there is no authority to hold the defendant under it. In the present case the sentence given was beyond the jurisdiction of the court, because it was against an express provision of the Constitution which bounds and limits all jurisdiction. Being of opinion therefore that habeas corpus was a proper remedy for the petitioner, if the crime of adultery with which he was charged was included in the crime of unlawful cohabitation for which he was convicted and punished, that question is now to be considered. (2) We will revert for a moment to the case of In re Snow. Three crimes of unlawful cohabitation were charged against Snow in three indictments, the crimes being laid continuous with each other-one during the year 1883, one during 1884, and one during 1885. We held that they constituted but a single crime. In the present case there were two indictments; one for unlawful cohabitation with two women down to May 13, 1888, and the other for adultery with one of the women the following day, May 14, 1888. If the unlawful cohabitation continued after the 13th of May, and if the adultery was only a part of and incident to it, then an indictment for the adultery was no more admissible, after conviction of the unlawful cohabitation, than a second indictment for unlawful cohabitation would have been; and for the very good reason that the first indictment covered all continuous unlawful cohabitation down to the time it was found. The case would then be exactly the same as that of In re Snow. By way of illustrating the argument we quote from the opinion in that case. Mr. Justice Blatchford, delivering the opinion of the court,