exercise concurrent powers in taxing the people of the State. The objects of taxation may be the same, but the motives and policy of the tax are different and the powers are distinct and independent. A concurrent power in two distinct sovereignties to regulate the same thing is as inconsistent in principle as it is impracticable in action. It involves a moral and physical impossibility. A joint action is not supposed and two independent wills cannot do the same thing. The action of one, unless there be an arrangement, must necessarily precede the action of the other; and that which is first, being competent, must establish the rule. If the powers be equal, as must be the case, both being sovereign, one may undo what the other does, and this must be the result of their action." In Kie vs. U. S., 27 Federal, 351, the Court said, "No law of Oregon is to have effect in Alaska if it is in conflict with a law of the United States. There is such a conflict, within the meaning of the statute, not only when these laws contain different provisions on the same subject, but when they contain similar or identical ones. In the latter case, it is the law of Congress that applies and not that of the State. See also U. S. vs. Clark, 46 Federal, 633. In re Nelson 69 Federal, 712. The national government is supreme and territorial governments are subordinate thereto.

There will be no confusion in the application of this doctrine as between a territory of the United States and the United States and a state and the United States. It will be remembered that a state is a sovereignty just as surely as the Federal Government is a sovereignty and each has the legal right to protect its own people against the same act by a statute denouncing the act as an offense and both statutes would be the law. In other words, as stated in Moore vs. Illinois by the Supreme Court of the United States, every citizen of the United States is also a citizen of a State or Territory. He may be said to owe allegiance to two sovereigns and may be liable to punishment for an infraction of the laws of either. The same act may be an offense or transgression of the laws of both. That either or both may punish such an offender cannot be doubted, yet it cannot be truly averred that defendant has been twice punished for the same offense, but only that by one act he has committed two offenses, for each of which he is justly punishable. He could not plead the punishment by one in bar to a conviction by

the other. A state may punish the offense of uttering or passing false coin as a cheat or fraud practiced on its citizens. Fox vs. State, 5 How., 432. In the case of the United States vs. Marigold, 9 How., 560, it is held that Congress, in the proper exercise of its authority, may punish the same act as an offense against the United States. In Snow vs. U. S., 18 Wall., 317, it was said that "Strictly speaking, there is no sovereignty in a territory of the United States, but that of the United States itself."

The case of Moore vs. Illinois, cited above, may be considered most liberal in a dictum definition of state sovereignty. The trend of the decisions of the Supreme Court of the United States since then is that when the Federal Government enters a field even of civil legislation, it becomes exclusive and its statutes are the paramount law. In other words the United States is the superior sovereignty, as has been announced most recently in the Hours of Service cases, wherein the Supreme Court held that since the Federal Government had by statute fixed a limit to the hours of service, a state statute fixing a different limit was void. Of course it will be remembered that there are some jurisdictions into which the Federal Government cannot enter. They belong exclusively to the State.

The offenses herein treated of are not confined to the Territories, but are punishable if committed within or upon any place within the exclusive jurisdiction of the United States, such as forts or arsenals, Government reservations, public building sites, etc., as is shown by Section 311, which reads as follows:

"Sec. 311. Except as otherwise expressly provided, the offenses defined in this chapter shall be punished as hereinafter provided, when committed within any Territory or District, or within or upon any place within the exclusive jurisdiction of the United States.

§ 343. Circulation of Obscene Literature; Promoting Abortion; How Punished.-Section 312 of the new Code includes practically all of the elements of the statute relating to the abuse of the United States mails in the transmission of obscene, etc., matter, and of the Interstate Commerce Statute, which relates to the shipping or carrying of obscene

matter, etc. Section 312 of the new Code is in the following language, which displaces all provisions of old Section 5389: "Sec. 312. Whoever shall sell, lend, give away, or in any manner exhibit, or offer to sell, lend, give away, or in any manner exhibit, or shall otherwise publish or offer to publish in any manner, or shall have in his possession for any such purpose, any obscene book, pamphlet, paper, writing, advertisement, circular, print, picture, drawing, or other representation, figure, or image on or of paper or other material, or any cast, instrument, or other article of an immoral nature or any drug or medicine, or any article whatever, for the prevention of conception, or for causing unlawful abortion, or shall advertise the same for sale, or shall write or print, or cause to be written or printed, any card, circular, book, pamphlet, advertisement, or notice of any kind, stating when, where, how, or of whom, or by what means, any of the articles above mentioned can be purchased or obtained, or shall manufacture, draw, or print, or in any wise make any of such articles, shall be fined not more than two thousand dollars, or imprisoned not more than five years, or both."

§ 344. Polygamy.-Section 313 of the new Code displaces old Statute 5352, and the Act of March 22, 1882, shown in First Supplement, 331, and is in the following language:

"Sec. 313. Every person who has a husband or wife living, who marries another, whether married or single, and any man who simultaneously, or on the same day, marries more than one woman, is guilty of polygamy, and shall be fined not more than five hundred dollars and imprisoned not more than five years. But this section shall not extend to any person by reason of any former marriage whose husband or wife by such marriage shall have been absent for five successive years, and is not known to such person to be living, and is believed by such person to be dead, nor to any person by reason of any former marriage which shall have been dissolved by a valid decree of a competent court, nor to any person by reason of any former marriage which shall have been pronounced void by a valid decree of a competent court, on the ground of nullity of the marriage contract.

$345. Unlawful Cohabitation.-Section 314 of the new Code reads as follows:

"Sec. 314. If any male person cohabits with more than one woman, he shall be fined not more than three hundred dollars, or imprisoned not more than six months, or both."

§ 346. Joinder of Counts.-Section 315, which permits joinder in the same indictment of charges under the two above mentioned sections, is as follows:

"Sec. 315. Counts for any or all of the offenses named in the two sections last preceding may be joined in the same information or indictment."

§ 347. Decisions. The offense of polygamy, as distinguished from open and notorious cohabitation, was not an offense under the Common Law, and, therefore, is statutory in this country. The Supreme Court of the United States, in the Miles Case, 103 U. S., 311, announced the doctrine that the proof of marriage will not be limited to only such witnesses as were eye witnesses. Cohabitation and reputation of being husband and wife are usually considered together in questions concerning the proof of marriage. This was followed in United States vs. Higgerson, Volume 46, Federal Reporter, 750. It is always pertinent, under the offense of bigamy and adultery and kindred offenses, to prove the marriage relation. In the leading case of Cannon vs. United States, 116 U. S., page 55; 29 Law Ed., 561, the Supreme Court held that a man "cohabits" with more than one woman when holding out to the world two or more women as his wives, by his language or conduct, or both, and when he lives in the same house with them, and eats at the table of each a portion of the time, although he may not occupy the same bed, sleep in the same room, or actually have sexual intercourse with either of them.

In ex parte Snow, 120 U. S., 274, 30 Law Ed., 658, the Supreme Court held that cohabiting was a continuous offense, and can be committed but once for the purpose of indictment or prosecution, prior to the time the prosecution is instituted; and a grand jury cannot divide the offense into separate offenses, and find separate indictments; as, where a man unlawfully cohabited with seven women for twentyfive months, there could be but one indictment.

§ 348. Adultery.-Section 316 of the new Code takes the place of the Act of March 3, 1887, shown at First Supplement, 568, and is in the following words:

"Sec. 316. Whoever shall commit adultery shall be imprisoned not more than three years; and when the act is com

mitted between a married woman and a man who is unmarried, both parties to such act shall be deemed guilty of adultery; and when such act is committed between a married man and a woman who is unmarried, the man shall be deemed guilty of adultery."

§ 349. Incest.-Section 317 of the new Code displaces the Act of March 3, 1887, shown at First Supplement, 4568, and is in the following words:

"Sec. 317. Whoever, being related to another person within and not including the fourth degree of consanguinity computed according to the rules of the civil law, shall marry or cohabit with, or have sexual intercourse with such other so related person, knowing her or him to be within said degree of relationship, shall be deemed guilty of incest, and shall be imprisoned not more than fifteen years."

Incest was not an offense at Common Law, though it was punished in the churches. The language of the statute demands knowing intercourse between parties related within the fourth degree of consanguinity, such relationship to be computed according to the rules of the Civil Law. It will be borne in mind that the method of computing relationship differs in the Canon Law, as adopted into the Common Law, and the Civil Law. In other words, under the Canon Law, or the Common Law, the computing begins at the common ancestor, and reckons downward, and in whatever degree the two persons, or the most remote, is distant from the common ancestor, that is the degree in which they are related. The method in the Civil Law is to count upward from either of the persons related, to the common ancestor, and then downward to the other, reckoning a degree for each person, both ascending and descending. In other words, the Canonists took the number of degrees in the longest line; the Civilians, the sum of the degrees in both lines. Anderson's Dictionary of Law, 229; 2 Blackstone's Commentary, 206207; 4 Kent, 412; 2 Litt. Coke, 158. Under this statute, it is also necessary that the indictment allege, and the proof show, the fact of knowledge of such degree of relationship.

$ 350. Fornication.-Section 318 of the new Code, which is also a part of the Act of March 3, 1887, First Supplement, 568, reads as follows: