Argument against Petitioner. habitation under the third section of the act of the 22d of March, 1882, 22 Stat. 31. Its descriptive language is, "hereafter cohabits with more than one woman." The second charges adultery under the third section of the act of the 19th of February, 1887, 24 Stat. 635. Its descriptive language is, "whoever commits adultery." The definition of adultery is The voluntary sexual intercourse of a married person with a person other than the offender's husband or wife. 1 Bouvier's Law Dictionary, 126. The essential elements of this crime are that the offender shall be married; that he or she shall have sexual intercourse with a person other than his or her husband or wife; that his or her husband or wife shall be living at the time of the act. No one of these elements is essential to the offence of "unlawful cohabitation." The word "cohabit" in the statute means "to be together as husband and wife." The offence is to live with more than one woman, holding out to the world by word or deed that such women are the wives of the offender. Neither actual marriage nor sexual intercourse are essential elements of this offence. These propositions are all sustained by the opinion. of this court in the case of Cannon v. United States, 116 U. S. 55. (2) The first indictment is for a continuous offence.. The time laid in it is: "On the 15th day of October, 1885, and on divers days thereafter, and continuously between the day last aforesaid and the 13th day of May, 1888." Under this indictment no evidence could have been received of any act done on the 14th day of May, 1888, nor on any other day later than the 13th. Commonwealth v. Robinson, 126 Mass. 259. The time laid in the second indictment is, "On the 14th day of May, 1888." There is no period of time that is common in the two indictments. No evidence could have been given on the first indictment for any offence committed as charged in the second. The records therefore relied on by the petitioner do not show that he was placed twice in jeopardy, but show on the contrary, prima facie, that he was not. The burden of proving the identity of the offences is on the defendant. Wharton's Crim. Pl. and Pr. § 483. Argument against Petitioner. (3) But even if the offence of "unlawful cohabitation" included one element of the crime of adultery, and both had been laid within the same time, it is not conceded that the petitioner was thereby placed twice in jeopardy. Moore v. People of the State of Illinois, 14 How. 20. In the case of Morey v. Commonwealth, 108 Mass. 433, the defendant had been indicted at September Term, 1867, for lewd and lascivious association and cohabitation with Bridget Kennedy. The offence was laid from October 1, 1866, continuously to August 1, 1867. He was convicted. At the same term he was convicted for adultery with Bridget Kennedy, in which the dates were laid January 1, June 1 and August 1, 1867. The court ruled that he had not been twice convicted of the same offence. The conclusion is thus stated by Gray, J., delivering the opinion: "The indictment for adultery alleged and required proof that the plaintiff in error was married to another woman, and would be satisfied by proof of that fact and of a single act of unlawful intercourse. Proof of unlawful intercourse was indeed necessary to support such indictment. But the plaintiff in error could not have been convicted upon the first indictment by proof of such intercourse, and of his marriage, without proof of continuous unlawful cohabitation; nor upon the second indictment by proof of such cohabitation, without proof of his marriage. Full proof of the offence charged in either indictment would not, therefore, of itself, have warranted any conviction upon the other. The necessary consequence is, that assuming that proof of the same act or acts of unlawful intercourse was introduced on the trial of both indictments, the conviction upon the first indictment was no bar to a conviction and sentence upon the second." The authorities bearing upon the question are fully cited, compared and discussed in the above case; among others the case of Commonwealth v. Roby, 12 Pick. 496, in which it was ruled a conviction for assault with intent to murder did not bar a conviction for murder committed by the same act. In the case of State v. Elder, 65 Indiana, 282, it is ruled: "But when the same facts constitute two or more offences, Opinion of the Court. wherein the lesser offence is not necessarily involved in the greater, and when the facts necessary to convict on a second prosecution would not necessarily have convicted on the first, then the first prosecution will not be a bar to the second, although the offences were both committed at the same time and by the same act." See also Commonwealth v. McShane, 110 Mass. 502, and authorities there cited; and Shannon v. Commonwealth, 14 Penn. St. 226. Where the evidence to support the second indictment would have been sufficient to procure a legal conviction upon the first, the plea is generally good, but not otherwise. 1 Wharton's Crim. Law, Pr., Pl. and Ev. §§ 565 and 565a. MR. JUSTICE BRADLEY, after stating the case as above reported, delivered the opinion of the court. The first question to be considered, is, whether, if the petitioner's position was true, that he had been convicted twice. for the same offence, and that 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 proceedings, 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 impris oned under and by virtue of it may be discharged from custody on habeas corpus. This was so decided in the cases of Ex parte Lange, 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 indictment and conviction of the crine 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 Opinion of the Court. 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 offence 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 autre fois 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 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 offence, 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 Opinion of the Court. 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 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 law, the court having jurisdiction of the case. In the 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 jurisdiction of the cause, or for a matter for which by law 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's Pleas of the Crown, 144. And why should not such 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 parte 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 |