plead the punishment by one in bar to a conviction by the other; consequently, this court has decided, in the case of Fox v. The State of Ohio (5 How. 432), that a state may punish the offense of uttering or passing false coin, as a cheat or fraud practised on its citizens; and, in the case of the United States v. Marigold (9 How. 560), that Congress, in the proper exercise of its authority, may punish the same act as an offense against the United States. . .

Upon these grounds, we are of opinion that the act of Illinois, upon which this indictment is founded, is constitutional, and therefore affirm the judgment.

MCLEAN, J. . . .

It is contrary to the nature and genius of our government, to punish an individual twice for the same offense. Where the jurisdiction is clearly vested in the federal government, and an adequate punishment has been provided by it for an offense, no state, it appears to me, can punish the same act. The assertion of such a power involves the right of a state to punish all offenses punishable under the act of Congress. This would practically disregard, if it did not destroy, this important branch of criminal justice, clearly vested in the federal government. The exercise of such a power by the states would, in effect, be a violation of the Constitution of the United States, and the constitution of the respective states. They all provide against a second punishment for the same act. It is no satisfactory answer to this, to say that the states and federal government constitute different sovereignties, and, consequently, may each punish offenders under its own laws.

It is true, the criminal laws of the federal and state governments emanate from different sovereignties; but they operate upon the same people, and should have the same end in view. In this respect, the federal government, though sovereign within the limitation of its powers, may, in some sense, be considered as the agent of the states, to provide for the general welfare, by punishing offenses under its own laws within its jurisdiction. It is believed that no government, regulated by laws, punishes twice criminally the same act. And I deeply regret that our government should be an exception to a great principle of action, sanctioned by humanity and justice.

It seems to me it would be as unsatisfactory to an individual as it would be illegal, to say to him that he must submit to a second punishment for the same act, because it is punishable as well under the state laws, as under the laws of the federal government.

UNITED STATES v. PEREZ.

SECTION II.

Questions not under State Law.

SUPREME COURT OF THE UNITED STATES. 1824.

[9 Wheaton, 579.]

STORY, J., delivered the opinion of the court.

This cause comes up from the Circuit Court for the Southern District of New York, upon a certificate of division in the opinions of the judges of that court. The prisoner, Josef Perez, was put upon trial for a capital offense, and the jury, being unable to agree, were discharged by the court from giving any verdict upon the indictment, without the consent of the prisoner, or of the attorney for the United States. The prisoner's counsel, thereupon, claimed his discharge as of right, under these circumstances; and this forms the point upon which the judges were divided. The question, therefore, arises, whether the discharge of the jury by the court from giving any verdict upon the indictment, with which they

re charged, without the consent of the prisoner, is a bar to any future trial for the same offense. If it be, then he is entitled to be discharged from custody; if not, then he ought to be held in imprisonment until such trial can be had. We are of opinion, that the facts constitute no legal bar to a future trial. The prisoner has not been convicted or acquitted, and may again be put upon his defense. We think, that in all cases of this nature, the law has invested courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. . . . The security which the public have for the faithful, sound, and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the judges, under their oaths of office. We are aware that there is some diversity of opinion and practice on this subject, in the American courts; but, after weighing the question with due deliberation, we are of opinion, that such a discharge constitutes

Where personer is indicted

In a capital

for

and joy being unable to agree charged by judge - to way for the fuse.

no bar to further proceedings, and gives no right of exemption to the prisoner from being again put upon trial. A certificate is to be directed to the Circuit Court, in conformity to this opinion.

CERTIFICATE. This cause came on, &c. On consideration whereof, it is ORDERED by the court, that it be certified to the Circuit Court of the District of New York, that, under the circumstances stated in the record, the prisoner, Josef Perez, is not entitled to be discharged from custody, and may again be put to trial, upon the indictment found against him, and pending in the said court.

The Court. gravoutly f

7

Freedom of Religion does not prevent congress from porsengan ast prohibiting palygamy

REYNOLDS v. UNITED STATES.

SUPREME COURT OF THE UNITED STATES. 1878.

[98 United States, 145.]1

ERROR to the Supreme Court of the Territory of Utah.

In the District Court for the Third Judicial District of Utah Reynolds was indicted for bigamy under R. S. U. S. sec. 5352, which provides that " every person having a husband or wife living, who marries another, . . . in a territory or other place over which the United States have jurisdiction, is guilty of bigamy, and shall be punished by a fine of not more than $500, and by imprisonment for a term of not more than five years." On the trial the accused proved that at the time of his second marriage he was a member of the Mormon Church and a believer in its doctrines, that an accepted doctrine of that church was the duty of male members to practise polygamy, enjoined by God, the penalty for failing to practice polygamy, when circumstances would admit, being damnation in the life to come, and that with the permission of the authorities of the church the marriage in question was performed by an official of that church. Upon this proof he asked the court to instruct the jury that, if he was married in conformity with what he believed at the time to be a religious duty, he should be acquitted. The request was refused, and the court charged 77 that there must have been a criminal intent, but that if the defendant, under the influence of a religious belief that it was

1 The reporter's statement has not been reprinted. - ED.

right, under an inspiration, if you please, that it was right, deliberately married a second time, having a first wife living, the want of consciousness of evil intent the want of understanding on his part that he was committing a crime did not excuse him; but the law inexorably in such case implies the criminal intent.' The accused excepted to the refusal to charge and to the charge as given. The jury found him guilty; and a judgment that he pay a fine of $500 and be imprisoned at hard labor for two years was affirmed by the Supreme Court of the Territory of Utah. Thereupon this writ of error was taken, various assignments of error being made. Aff 2

G. W. Biddle and B. Sheeks, for plaintiff in error; and C. Devens, Attorney General, and S. F. Phillips, Solicitor General, contra. WAITE, C. J., delivered the opinion of the court. . . .

Upon this charge and refusal to charge the question is raised, whether religious belief can be accepted as a justification of an overt act made criminal by the law of the land. The inquiry is not as to the power of Congress to prescribe criminal laws for the territories, but as to the guilt of one who knowingly violates a law which has been properly enacted, if he entertains a religious belief that the law is wrong.

Congress cannot pass a law for the government of the territories which shall prohibit the free exercise of religion. The first amendment to the Constitution expressly forbids such legislation. Religious freedom is guaranteed everywhere throughout the United States, so far as congressional interference is concerned. The question to be determined is, whether the law now under consideration comes within this prohibition.

The word "religion" is not defined in the Constitution. We must go elsewhere, therefore, to ascertain its meaning, and nowhere more appropriately, we think, than to the history of the times in the midst of which the provision was adopted. The precise point of the inquiry is, what is the religious freedom which has been guaranteed.

Before the adoption of the Constitution, attempts were made in some of the colonies and states to legislate not only in respect to the establishment of religion, but in respect to its doctrines and precepts as well. The people were taxed, against their will, for the support of religion, and sometimes for the support of particular sects to whose tenets they could not and did not subscribe. Punishments were prescribed for a failure to attend upon public worship, and sometimes for entertaining heretical opinions. The

controversy upon this general subject was animated in many of the states, but seemed at last to culminate in Virginia. In 1784, the House of Delegates of that state having under consideration “ а bill establishing provision for teachers of the Christian religion," postponed it until the next session, and directed that the bill should be published and distributed, and that the people be requested" to signify their opinion respecting the adoption of such a bill at the next session of assembly."

Amongst others,

This brought out a determined opposition. Mr. Madison prepared a "Memorial and Remonstrance," which was widely circulated and signed, and in which he demonstrated "that religion, or the duty we owe the Creator," was not within the cognizance of civil government. Semple's Virginia Baptists, Appendix. At the next session the proposed bill was not only defeated, but another, "for establishing religious freedom," drafted by Mr. Jefferson, was passed. 1 Jeff. Works, 45; 2 Howison, Hist. of Va. 298. In the preamble of this act (12 Hening's Stat. 84) religious freedom is defined; and after a recital "that to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy which at once destroys all religious liberty," it is declared "that it is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order." In these two sentences is found the true distinction between what properly belongs to the church and what to the state.

In a little more than a year after the passage of this statute the convention met which prepared the Constitution of the United States. Of this convention Mr. Jefferson was not a member, he being then absent as minister to France. As soon as he saw the draft of the Constitution proposed for adoption, he, in a letter to a friend, expressed his disappointment at the absence of an express declaration insuring the freedom of religion (2 Jeff. Works, 355), but was willing to accept it as it was, trusting that the good sense and honest intentions of the people would bring about the necessary alterations. 1 Jeff. Works, 79. Five of the states, while adopting the Constitution, proposed amendments. Three New Hampshire, New York, and Virginia - included in one form or another a declaration of religious freedom in the changes they desired to have made, as did also North Carolina, where the convention at first declined to ratify the Constitution until the pro