UNITED STATES v. GIBERT et al., 25 F. Cas. 1287

STORY, Circuit Justice, in summing up the-case at the trial, stated as follows. Before I proceed to the facts of the case, it seems proper to take notice of several cases, which have been cited at the bar, to show the danger-in capital eases, of relying on presumptive evidence as sufficient proof of guilt. Those cases may be said to constitute the commonplaces of the law, in trials of this sort, always resorted to, to create doubts in the minds of the jury, and to shake our confidence in human testimony.

If these cases (some of which, there may be reason to doubt, whether they are founded in truth or in fiction.) are brought to establish any thing, they are brought to establish these propositions on trials on indictments for murder (for they are-all of this sort.)

(1) That there ought to be-no conviction for murder, unless the murdered body is actually found.

(2) That men have been convicted of murder upon false testimony. The first proposition certainly cannot be admitted as correct in point of common reason, or of law, unless courts of justice are to establish a positive rule to screen persons from punishment, who may be guilty of the most flagitious crimes. In the eases-of murders committed on the high seas, the-body is rarely if ever found; and a more complete encouragement and protection for the-worst offences of this sort could not be invented, than a rule of this strictness. It would amount to a universal condonation of all murders committed on the high seas.

In. regard to the second proposition, it is probable, that.in some few instances, though they have been rare, innocent persons have been convicted, upon circumstantial evidence, of of-fences, which they never committed. The same thing has probably sometimes, though perhaps not more rarely, occurred, where the proofs have been positive and direct from witnesses, who have deliberately sworn-falsely to the facts, constituting the guilt of the-party accused. But to what just conclusion does this tend?

Admitting the truth of such cases, are we, then, to abandon all confidence in circumstantial evidence, and in the testimony of witnesses? Are we to declare, that no human testimony to circumstances or to-facts, is worthy of belief, or can furnish a just foundation for a conviction? That would be to subvert the whole foundations of the-administration of public justice. If, on the other hand, such cases are addressed as a mere admonition to the judgment of the jury, requiring caution on their

part in -weighing evidence, in order to guard them against the impulses of sudden conclusions and slight suspicions, there is certainly nothing objectionable in the course, although under the, solemn circumstances of the present case, it seems hardly necessary to enforce an appeal, the importance of which is so deeply felt by all, who sit on this trial. I*Tnay. indeed, add another remark, which, strange as it may seem, has nevertheless been justified, as there is every reason to believe, by actual facts.

It is not even certain, that criminals, who in capital cases plead guilty, and by confession of their guilt in open court, submit to the sentence of the law, are, always guilty of the offence. Cases have occurred, in which men have been accused and tried and convicted of murder upon their own solemn confession in a court of justice, where it has been afterwards ascertained, that the party could not have' been guilty, for the person supposed to be murdered was found to be still living, or lost his life in another place, and at a different period.

And yet it never has been supposed, that a solemn confession in open court, was not a just ground to believe the guilt of the party accused. The truth is, that notwithstanding the admitted infirmity of human testimony, and the inherent defects of circumstantial evidence, they still are, and for ever must be, the only solid foundations, on which reliance can be placed, for the due administration of all civil as well as of all criminal justice.

It is scarcely possible to take a step in the trial of any matter of fact, without directly or indirectly appealing to them, as unquestionable and satisfactory sources of human belief. There are three questions in this case. The first is, whether a robbery was actually committed on the Mexican, on the high seas, as charged in the indictment. The second is, whether it was committed by the officers or crew of the Panda. The third is, whether, if committed by the officers or crew of the Panda, all of them are guilty, or a part only; and if a part, who in particular are guilty.

Upon the first question, there is no controversy at the bar. The robbery was committed; and, indeed, is established, if any fact in the case is so, by entirely satisfactory evidence.

Upon the second question, it is indispensable to go into a minute and accurate survey of the whole evidence, circumstantial and positive. (Here the judge went into a full examination of all the evidence, leaving all the facts to the jury.) If the jury shall be satisfied that the Mexican was robbed by the Panda, then, upon the third question, there are some principles of law, which require to be accurately considered, in order to arrive at a just conclusion, as to the guilt or innocence of any or all of the parties ac-eused.

And, here it is most important to ascertain, whether the original voyage of the Panda from Cuba was intended to be a piratical expedition or not.

If it was originally intended to be a piratical expedition, then all of the officers and crew, who knew of such intended expedition, and acted upon it, are to be considered as equally guilty of the robbery of the Mexican, (if the offence was committed,) whether at the moment, they are proved to have been active in the acts then done, or not; for, under such circumstances, they must, in the absence of all counteracting evidence, be presumed to co-operate in furtherance of the original design, each doing the duty assigned to him.

If, on the other hand, the original expedition was not intended to be piratical, then those only are to be deemed guilty, who knowingly co-operated in the act of robbery of the Mexican. Co-operation or combination may be express, or it may be implied from circumstances. All, who were present and acting in the robbery, are to be deemed principals.

All who were present, advising, directing, encouraging or assisting in the accomplishment of the robbery, thus performing the part assigned to them in the common piratical enterprise, are to be deemed equally principals.* But the other persons, whether they were of the officers or of the crew of the Panda, who did not know of the piratical design, and did not co-operate or aid or take any

part in it, though they were present on board of the Panda, are not to be deemed guilty. In this view of the matter, the nature of the original enterprise, and of tin-outfit and voyage of the Panda from Cuba become most material for the consideration of the jury. It is not sufficient to affect all the officers and crew of the Panda with guilt, that they should have known, that the voyage was intended to be an illegal voyage,— as a voyage in the slave trade, contrary to the laws of Spain.

The evidence must go farther, and satisfy the jury, that the voyage in contemplation by all of them, was to be piratical, as well as illegal. If the voyage was simply illegal, then those only are to be deemed guilty, who co-operated in the piratical act upon the principles above stated.

Let us now examine the evidence in the case, as applicable to all the persons accused severally, upon the supposition, that the original enterprise, is not shown to be piratical. (Here the judge went Into a very minute examination of the evidence, remarking, that if any were guilty of the crime, Gibert, the captain, and De Soto, the owner and mate, must be; for they had the unquestioned command, and control of the ship and crew.

He then summed up the evidence, as to the identity of those of the crew of the Panda, who went on board of the Mexican, and as to the acts done by them while on board; and their subsequent conduct and confessions. He added, that against Porta na and Guzman, no direct co-operation was proved, unless the original enterprise was piratical, and so known to be by them; and that the sole evidence against Velasquez, was his assisting in burying the money, as testified to by Perez. In regard to Ferrer, the cook, he remarked, that he was a black man, and possibly might be a slave, and no act was proved against him.

If he was a slave, he was entitled to a very indulgent consideration, for he could hardly, under the circumstances, be deemed master of his own will. As to Costa, the cabin boy, he suggested, that there was no evidence against him, and his youth and station ought to induce the jury to give his case a very indulgent consideration.

Neither he, nor the cook, were likely to have been entrusted with the secret, that the voyage was originally intended to be piratical, if that was the fact, and no cooperation at the time of the robbery, was shown on their part.) The jury returned a verdict of not guilty in favor of Ferrer, Costa, Portana, Velasquez, and Guzman, and as to the rest of guilty!

After verdict and before judgment, the following motion for a new trial, and in arrest of judgment, was filed by the counsel for the prisoners: And the said Pedro Gibert, Bernardo de Soto, Francisco Ruiz, Manuel Boyga, Manuel Castillo, Angel Garcia, and Juan Montenegro, prisoners here in the custody of the marshal, after verdict and before judgment, move the court that the said verdict be set aside, and that a new trial be granted, for the causes following, viz.: I.

Because said prisoners, since the rendering of the said verdict, have come to the knowledge, and are enabled to avail themselves, of new evidence, which they believe to be very material for their defence, and that the same, if submitted to a jury, would lead to a result different from the said verdict II. Because the said prisoners' were not permitted by the honorable court to be tried separately on the indictment in said case. III. Because the said prisoners were never arraigned upon the said indictment. IV.

Because no issue was joined between the said United States and the said prisoners, according to the course of the common law. V. Because the said prisoners have never put themselves upon the country of and concerning the matters charged in said indictment, and were never inquired of how they would be tried. VI.

Because the said court overruled a question proposed on the part of the prisoners, to a witness produced by the government. on the ground that the said court could not perceive the object or bearing of the said question, and when the counsel for the said prisoners had stated to the said court that to explain would defeat the object of the said question. VII. Because the said prisoners believe and respectfully suggest, that in the trial of said cause, the jury were misdirected in matters of law, by the said court, in the following particulars, viz.

(1) Because the said court instructed the jury that one Jose Perez, a witness produced on the part of the government, was not an accomplice in the commission, of the crime alleged in the said indictment.

(2) Because the said court instructed the jury that they might, if they pleased, or they might not, if they pleased, entertain a presumption against the ¿redibility of said Perez, by reason of the refusal of the counsel for the government to produce the written examination of said Perez, teken at Fernando Po; and, because the said court declined giving an instruction that the said refusal of the said counsel, after due notice on the part of the prisoners, to produce the said written examination, afforded a legal presumption, that if the said written examination were brought forward, the effect thereof would be unfavorable to the credit of said Perez.

(3) Because the said court instructed the jury that the question of the liability of Henry D. Trotter for the loss and damages occasioned by the capture of the schooner Panda, and by the detention of her officers and crew, was immaterial on the trial of the issue upon the said indictment.

(4) Because the said court instructed the jury that certain confessions of the prisoners, testified to have been made at Fernando Po, Sierra Le-one, and on the passage of the said prisoners to England, and at other places, were proper to be considered by the jury.

(5) Because the said court instructed the jury that the withholding by the counsel for the government from the prisoners on the trial, of certain writings containing the said confessions or a part of them, was a fact from which the jury might presume what they pleased, provided that they presumed nothing therefrom against the prisoners; and because the said court declined to give it in charge to the jury, that the suppression of said writings by the counsel for the government, afforded a legal presumption that if the same were brought forward, the effect thereof would be in favor of the said prisoners.

(6) Because the said court declined to instruct the jury that by the waiver on the part of said prisoners of any legal exceptions, to which said writings might be liable, the coimsel for the government ought to have put the said writings into the case, or the parole testimony of the same confessions which had been proved to have been reduced to writing, ought to have been wholly rejected and considered out of the case, t.7) Because the said court instructed the jury that confessions, testified to have been made by some of the prisoners, without the same having been brought home to any of them individually and by name, might be considered by the jury in reference to the case generally, and to the identification of the said Panda as the piratical vessel mentioned in said indictment, and of her crew as the piratical crew; and that the jury must not consider such confessions as evidence upon which to convict any one of the prisoners in particular.

(8) Because the said court declined to instruct the jury that the counsel for the government having produced a part of the papers.and documents ; appertaining to the said Panda, and not having shown that any of the customary papers ! and documents, which should regularly be- , Ring to the said Panda, were detained or ¡ destroyed by the officers and crew of the said Panda; or were from any cause missing at the time and place of the seizure of those produced—a legal presumption arises that the log-book of the said Panda was taken at the same time and place, and by the same captors, and that they have it or have destroyed it.

(9) Because the said court declined to instruct the jury that the non-production of said log-book on the part of the prosecution, gives rise under the circumstances aforesaid, to a legal presumption in favor of the prisoners.

(10) Because parol evidence was admitted to prove the time of the sailing of the said Panda on her voyage from Havana to Cape Mount, and to prove the course and termination of said voyage, without evidence having been previously adduced, that the said log-book was missing from said papers and documents at the time and place of said seizure, or had since been casually lost.

(11) Because the said court declined to instruct the jury that under the circumstances proved, resistance, flight, or the destroying of the said Panda by her officers and crew, would be exercising the right of self-defence on the part of the said officers and crew.

(12) Because the said court declined to instruct the jury that the failure of the government to produce, in evidence of the attempt by said Ruiz to blow up the said Panda, the only witness who saw the match, as applied for that purpose, and who is testified to have removed it, affords a legal presumption against ¡ the truth of the alleged attempt by said i Ruiz, to destroy the said Panda. VIII. Because the jury were furnished with newspapers, and did read the said newspapers during the pendency of the trial. IX. Because the said jury, while they had the said cause in charge, drank ardent spirits. X.

And the said prisoners move for a new trial, because the said verdict is manifestly against evidence and the weight of evidence. And in case that the honorable court should not set aside the said verdict and grant a new trial, then said Gibert, De Soto, Ruiz, Boyga, Castillo, Garcia and Montenegro, move the court to arrest the judgment on said verdict, for the causes following, viz.

(1) Because no legal offence is set forth in said indictment, and because the said indictment is uncertain, insufficient and not judicially intelligible

(2) Because the said prisoners were never arraigned, and have never put themselves 'upon the country for trial.

(3) Because no issue has been joined on said indictment according to the course of the common law. The foregoing is a copy of the original motion. Subsequent to the filing of that, and before argument, the following additional causes were assigned for a new trial: Because interpreters were admitted to interpret a part of the testimony of said Jose Perez, without being previously sworn to interpret truly and faithfully.

Because the said prisoners were not allowed to be placed near their counsel on the trial, for the purpose of instructing said counsel in the conducting 'of the defence of said prisoners, when the said counsel had made an application to the said court for said purpose, and stated that in their opinion, such change of position was necessary for said purpose.

Because the said court overruled a motion by said counsel, that the order in which said prisoners were placed at the bar on their trial should be changed, before the introduction of each of the witnesses for the government, who were excluded from the eourt room, after the first of said witnesses had been examined and had retired.

Because the counsel for the government was permitted, upon objection made by the counsel for the prisoners, to lead the witnesses for the government, by means of a certain chart, upon which the voyage of the said brig Mexican was delineated, and upon which the point at which the piracy alleged in said indictment had been testified to have been committed, was distinctly marked; and upon a view of said chart by said witnesses, the following question was proposed to them by the said counsel for the government: viz. whether, if the said schooner Panda left the port of Havana on the 20th or 26th of August, bound to Cape Monte, on the coast of Africa, and the said brig Mexican left Salem on the 29th of said August, bound to Rio Janeiro, the said vessels would or would not be likely to meet?

Because the said court declared td the jury, and delivered it as the opinion of said court, that the prisoners, by their counsel, had no right to pray instructions to the jury on particular points, after the delivery of the principal charge.

Because the said court declined to instruct the jury that if they believed, upon the evidence, that the said schooner Panda, while lying in a certain river called ‘‘Nazareth,” was suddenly assailed by a superior force, which advanced upon them in hostile array, without hailing or declaring their intention, the officers and crew on board the said Panda, had a right to resist, to flee, or to destroy the said Panda, or to resort to any other means of self-defence, which they might deem expedient. These motions were argued at great length by George S. Hillard and David L. Child, for the prisoners, and by A.

Dunlap, Dist. Atty., for the United States. THE COURT, in pronouncing its opinion, went so fully into all the considerations urged as to supersede the necessity of stating the arguments, which occupied three days, and were concluded December 10th. STORY, Circuit Justice. This is an indictment for a robbery on the high sea, which is declared to be a capital offence and piracy by the statute of 1790, e. 9 [1 Stat. 113]. The prisoners haring been found guilty, a motion has now been made for a new trial, upon grounds stated in a written motion submitted to the court.

Upon the grounds thus stated, it is unnecessary for me to say any more at present, than that so far as they purport to be founded upon what took place at the trial in the presence of the court and jury, they are not admitted by the court, to present a full, accurate, or just representation of all the facts and circumstances. This remark is made simply to prevent any misapprehension from any silence or acquiescence of the court upon this subject.

The question now to be considered is, whether this court has, by the constitution and laws of the United States, authority to grant a new trial in a case circumstanced as the present is.

And, in order to free the case as much as possible from any collateral and unimportant considerations, it is proper to state, that in examining this question, we shall, for the present, assume that the court had jurisdiction of the case; ' that there has been no mis-trial, in a legal sense, that is. no such irregularity, or error in impannelling the jury to try the cause, or in the other proceedings in the course of the trial,, as would upon the face of the process and proceedings be fatal as matter of substance, and that the indictmeut is sufficient in point of law to found a just judgment against the prisoners in conformity to the verdict Tn other words, for the purpose of the argument, we shall for the present assume that the jurisdiction is clear, that the indictment is good, and that the trial has been regularly had, and the verdict has been regularly rendered by a competent jury.

Under such circumstances, has this court authority, by the constitution and laws of the United States, to grant a new trial after a verdict regularly rendered of guilty against the prisoners? The constitution of the United States has exhibited great solicitude on the subject of the trial of crimes, and has declared, that the trial of all crimes, except in cases of impeachment, shall be by jury; and has in some cases prescribed, and in others required congress to prescribe, the place of trial.

And certain amendments of the constitution, in the nature of a bill of rights, have been adopted, which fortify and guard this inestimable right of trial by jury. One of these amendments provides that “no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury,” (with certain exceptions not necessary to be mentioned); and it then proceeds—“nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” Now the question is, what is the true

interpretation and meaning of this latter clause? When, in a constitutional sense, .can a person be said to be twice put in jeopardy of life or limb? If resort should be had to the grammatical structure and meaning of the words, the natural

interpretation would certainly seem to be, that no person should be twice put upon trial for any offence, for which he would be liable, upon conviction, to be punished with the loss of life or limb;—for jeopardy means hazard, danger, or peril; and when a party is put upon trial for an offense punishable with the loss of life or limb, and he stands for his deliverance upon the verdict of the jury, he is thereby put in jeopardy, hazard, danger or peril of his life or limb. But, fortunately, in the present case, there is no necessity of resorting to mere general principles of

interpretation; for the privilege thus secured is but a < institutional recognition of an old and well established maxim of the common law: and, therefore, we are to resort to the common law to ascertain its true use,

interpretation, and limitation. The existence of this maxim as a fundamental rule of the common law in the administration of criminal justice, may be constantly found recognised by elementary writers and courts of justice from a very early period down to the present times.

Thus Staundford, in his Pleas of the Crown (lib. 2 c. 36, pp. 105, 106), says—“Home, per common leye, ne mittera sa vie deux foits’in jeop-ardie de trial per un inesme fetonie, sinon que sort en ascun especial cas de quel jéo dirra apres.” A man shall not by the common law put his life twice in jeopardy of trial for the same felony, except it shall be in some special ease, of which I shall hereafter speak. And the excepted case, to which he here alludes, he states in the same

chapter to be where there is not in the indictment sufficient matter to constitute felony in point of law. And he applies his doctrine directly to the case of a plea of a former acquittal, grounding the sufficiency of it as a bar upon the above maxim. And he then states, that if the acquittal was upon an insufficient indictment, it is no bar to a second indictment for the same offense (eo que in tiel cas il ne unque mittoit sa vie in jeopardie sur le matter), because his life has never been in jeopardy upon the matter. And the like doctrine may be traced up as early as the age of Bracton. 1 Staund. P.

C. lib. 2, c. 36. p. 106. See, also, Fitzh. Abr. Corone, pi. 444. Hawkins, whose work on Crown Law is deservedly held in very high estimation, states the doctrine in the most unqualified manner: “The plea (says he) of autre fois acquit is grounded on this maxim, that a man shall not be brought into danger of his life for one and the same offence more than once.

From whence it is generally taken by all our books, as an undoubted consequence, that where a man is once found not guilty, on an indictment or appeal, free from error, and well commenced before any court, which hath jurisdiction of the cause, he umy by i the common law, in all cases, plead such acquittal in bar of any subsequent indictment or appeal for the same crime.” Hawk. P. C. bk. 2, <5. 35, §§ 1, 8-10. And Lord Hale recognizes the same doctrine. See 2 Hale, P, C. 181, 220, 249, 250. See, also, Com. Dig. “Appeal,” 6. 9, G. 11. And not to multiply authorities on so plain a point, Mr.

Justice Blackstone, in his Commentaries (4 Bl. Comm. 335; Reg. v. Carter, 6 Mod. 168), says: “The plea of autre fois acquit, or a former acquittal, is grounded on this universal maxim of the common law of England, that no man is to be brought into jeopardy of his life more than once for the same offence.” Hitherto we have been examining the doctrine with reference to cases of acquittal only. But the like doctrine, founded on the like maxim, will be found to apply to eases of conviction of a capital offence.

And, here, in order to avoid any ambiguity, it may be proper to state, that conviction does not mean the judgment passed upon a verdict; “but if the jury find him, (the party), guilty, he is then said to be convicted of the crime, whereof he stands indicted. 4 Bl. Comm. 362; 3 Inst. 131. For there is, in point of law, a difference between the plea of autre fois convict, and autre fois attaint of the same offence; the former may be where there has been no judgment; the latter is founded upon a judgment.” See 2 Hawk. P. C. c. 36, §§ 1, 10; Staunf. P. C. lib. 2, c. 37, p. 108; 4 Bl. Comm. 336.

Hawkins, after remarking upon the plea of autre fois attaint, and saying that one reason why it is a good bar for a second prosecution for the same felony is. “because the life of the defendant was in danger by the first; and it is against a maxim of law to bring a man into such danger more than once for the same offence,” proceeds to say, “the plea of autre fois convict seems chiefly to depend on this reason, that.the party ought not to be twice brought into danger of his life for the same crime.” 2 Hawk. P. C. bk. 2, c. 36, §§ 1,10,15.

He afterwards makes the known exception, where the verdict is erroneous either in respect of insufficiency of the indictment, or for a mis-trial, &t\, so that' the life of the prisoners was not in danger at the trial. 2 Hawk. P. C. bk. 2, c. 36, § 15. See, also, 2 Hale. P. C. cc. 31, 32, pp. 243, 251; Reg. v. Goddard, 2 Ld. Raym. 922; Armstrong v. Lisle, 1 Salk. 63; People v. Barrett, 1 Johns. 66; People v. Casborus, 13 Johns. 351. See the distinction between a mis-trial, and a new trial in Rex v. Fowler, 4 Barn. & Ald. 273.

The same doctrine is abundantly established in the cases of appeals and indictments, reported in 4 Coke, 40—47; and especially in the cases of Richard Vaux and William Vaux, there stated (pages 40, 44. 45).

In the latter case, the court held, “that the reason of autre fois acquit was because, where the maxim of the common law is, that the life of a man shall not be twice put in jeopardy for one and the same offence; and that is the reason and cause why autre fois acquitted or convicted of the same offence is a good plea; yet it is intended of a lawful acquittal or conviction,, for if the conviction or acquittal is not lawful, his life was never in jeopardy; and because the indictment in this case was insufficient, for this reason, he was not legitimo modo aequieta-tus,” &c. “So, if a man be convicted, either by verdict or confession, upon an insufficient indictment, and no judgment thereupon given, he may be again indicted and arraigned, because his life was never in jeopardy, and the law wants its end.” And the same was ruled in Wigg’s Case, 4 Coke, 45, 47.

So in Armstrong v. Lisle, 1 Salk. 63, where there was a plea of autre fois convict to an appeal of murder, the court said: “At common law autre fois convict or acquit was a good bar to an appeal, for no man’s life ought to be twice endangered for the same offence.” See Smith v. Taylor, 5 Burrows, 2798; Com. Dig. “Appeal,” G. 9. And, lastly, Mr. Justice Blackstone, in his Commentaries (4 Bl.

Comm. 336), says: “The plea of autre fois convict, or a former conviction of the same identical crime, though no judgment was ever given or perhaps will be (being suspended by the benefit of clergy or other causes), is a good plea in bar to an indictment.

And this depends upon the same principle of the former (autre fois acquit) that no man ought to be twice brought in danger of his life for one and the same crime.” Thus we see that the maxim is imbedded in the very elements of the common law; and has been uniformly construed to present an insurmountable barrier to a second prosecution, where there has once been a verdict of acquittal or conviction regularly had upon a sufficient indictment.

Indeed, so strong has been the influence of this maxim, that it was for ages construed not only to apply to cases, where there had been a verdict given by a jury; but even where the party had been once put upon his trial before a jury for deliverance. And Lord Coke laid it down, that after a jury were once charged with a prisoner upon an indictment for treason or a felony, the jury could not be discharged, but were bound to give a verdict. 3 Inst. 110; 1 Inst. 227, 6. See, also, Kinloch’s Case, Foster, Cr. Law, 28-37; 2 Hawk. P. C. bk. 2, c. 47, § 1.

And though that rule has been broken in upon in modern times, and juries have been discharged from giving a verdict in capital cases in cases of pressing necessity; yet it has been done with extreme caution, and confined to cases of pressing necessity; and as we shall presently see, the exercise of it has been greatly doubted, and even denied in eases where the jury were unable to agree on a verdict.

This matter was very gravely discussed in the Case of the Kinlochs in 1746; and though the court upon that occasion did discharge the jury in favor of life, and so let the prisoners at their request into a new defence; yet the judges did it upon great deliberation and debate.

And Sir Michael Foster on this occasion observed (and it illustrates the force of the maxim) that “it was not to bring the prisoners’ lives twice in jeopardy, which is one inconvenience of discharging juries in capital cases, but merely in order to give them one chance for their lives, which, it was apprehended, they had lost by pleading to issue.” So that even this humane judge felt that it was trenching upon the maxim, and that when once the party was put on his trial before the jury, if the jury were discharged he was subjected to be put twice in jeopardy for the same offence.

Hitherto we have been chiefly considering the ease of a new indictment, to which the party pleads the former indictment and a verdict of acquittal or conviction. And it was fit so to do, in order to understand the full import and bearing of the language of the maxim. But the question now more directly presented is, whether the same maxim equally applies to the case of a new trial moved for in a capital case upon the same indictment. It is impossible, I think, to doubt that, in England, the maxim according to the doctrine of the English courts of justice does apply to and govern the case of á new trial.

As soon as a capital ease is fully committed to a jury, the life of the prisoner is in their hands, and he stands in jeopardy of his life upon the verdict of the jury. He is in the truest sense put upon his deliverance from the peril. When once the verdict is pronounced the case is fixed.. If there is a verdict of acquittal, it is generally agreed that he cannot be put Upon his trial again for the same offence. And why? Because it contradicts the direct language of this maxim of the common law. He would again be put in jeopardy of his life.

And how does the case at all differ in principle in the case of a conviction? The fact is the same. He Is again put in jeopardy of his life. He is again to be tried, and acquitted or condemned. If it be said, that it is for his benefit and in favor of his life to have a new trial, that may be true: but there is in the body of the maxim no such qualification or limitation of its meaning. It is nowhere .laid down as a part of the maxim that if he is acquitted he shall not be tried again; but if he is convicted he may be allowed a new trial.

And if the court are to assume the power in favor of the prisoner; why may it not equally assume it when it will prevent a manifest fraud upon the administration of justice to suffer his acquittal to remain? Oases may easily be put where an acquittal may have been produced by gross bribery of the witnesses, by false testimony fraudulently procured by the prisoner, by spiriting witnesses away, and even by means still more offensive and revolting to public justice. And yet no case has as yet been produced of a new trial granted against a prisoner upon such grounds. In Reg. v.

Carter, 6 Mod. 168, Lord Chief Justice Holt stated a case where a rank perjury had gone unpunished from some defect in entering of the record of the former case, in which the perjury was alleged, for that (the first trial for perjury) was final, so as the party could never be tried thereon again.

It is true, that in order to avoid difficulties of this sort, the courts in the reign of Charles II. (that reign of bad precedents) did sometimes go So far as to discharge juries before a verdict was given, where there was reason to believe that evidence was suppressed, or that there was not enough to convict the prisoner, or that there was reason to suspect malpractice. And even Lord Hale fell into this erroneous practice, and endeavored to justify it. 2 Hale, P. C. c. 41, pp. 294-296. But it has since been wholly repudiated, and it met the decided disapprobation of Sir Michael Foster. Kinloeh’s Case, Fost. Cr.

Law, 16, 17. But in point of fact, there is no instance of any new trial having been granted by the English courts in capital eases, where the indictment is sufficient, and there has not been a mistrial, upon the plain ground that it would violate the integrity of this fundamental maxim of the common law. Indeed, for a great length of time the opinion prevailed, that there could be no new trial granted in any criminal cases, even where the indictment was for a mere misdemeanor, although it is manifest that the maxim does not apply except to capital felonies. Mr.

Justice Blackstone has indeed in his Commentaries said: “In many instances where, contrary to evidence, the jury have found the prisoner guilty, their verdict hath been mercifully set aside, and a new trial granted by the court of king’s bench; for in such a case, as hath been said, it cannot be set right by attaint. But there hath as yet been no instance of granting a new trial, where the prisoner was acquitted upon the first.” Now, from the other citations already made, it must be manifest that the learned commentator was referring to cases of mere misdemeanors.

And he cites in support of this doctrine the case of Rex v. Read, 1 Lev. 9; Rex v. Smith, T. Jones, 163; Rex v. Simons, 10 St. Tr. 416, 19 How. St. Tr. 680; 2 Hawk. P. C. bk. 2, c. 47, § 12; and see Mr. Curwood’s note, Id.,—which were all eases of mere misdemeanors. Even as late as this very case of Rex v. Simons, it seems to have been deemed a very unusual course to grant a new trial in any criminal case, where the party was convicted.

And in this very case the distinction, as to granting new trials between capital cases and other criminal cases was already recognized;, and well it might be, as the maxim applies ouly to offences where the party is put in jeopardy of life or limb, which the defendant clearly is not upon an indictment for mere misdemeanors. In Rex v. Mawbey, 6 Term R. 638, Lord Kenyon lays it dowD expressly that “in one class of offences, indeed, those greater than misdemeanors, no new trial can be granted at all.” In a note to the case of Rex v. Inhabitants of Oxford Co., 13 East, 416, note (see 2 Hawk. P.

C. bk. 2, c. 47, § 12; and see Mr. Cur-wood’s note, Id.), Mr. East, himself a most able and exact crown lawyer, says: “In capital cases at the assizes, if a conviction take place upon insufficient evidence, the common course is to apply to the crown for a pardon, upon a full report of the evidence sent in by the learned judge to the secretary of state for the home department. But I am not aware of any instance of a new trial, granted in a capital case; and upon the debate of all the judges in Tinckler’s-Case in 1781 [1 East, P.

C. 354], it seemed to be considered that it could not be.” And this is admitted to be the received and settled doctrine in England, by every elementary writer upon the criminal law, who treats of the subject. Thus Mr. Chitty says in his work on Criminal Law. that in case of felony or treason, it seems completely settled that no new trial can in any case be granted. But if the conviction appear to the judge to be improper, he may respite the execution, to enable the defendant to apply for a pardon. 1 Chit. Cr. Law (Eng. Ed.) p. 654; S. P. Christian’s note to 3 Bl. Comm. 388. The like doctrine is stated by Mr.

Russell, in his work on Crimes. 2 Russ. Cr. bk. 6, c. 1, § 1 (2 Lond. Ed.) p. 589. See, also, 2 Tidd. Prac. p. 820; Rex v. Fowler, 4 Barn. & Ald. 273; Rex v. Edwards, 4 Taunt. 309.

And to show how inflexibly the doctrine stands in the jurisprudence of the common law, it may be added that in the report made to parliament by the commissioners on the criminal law, at the very last session, it is stated as a known fact, that parties charged with felonies “cannot have a new trial.” Indeed, the total silence of the English books upon this subject during the last three hundred years, is as significant as any positive expression could be.

Considering the vast number of capital trials, amounting to hundreds every year, during this long period, the total absence of any trace of a motion for a new trial, in any capital case for misdirection of the court, or upon the discovery of new evidence, or because the verdict was against the weight of evidence, or for any other causes not amounting to a mistrial, where the indictment was good, is perhaps the strongest possible proof, that the power was not supposed to exist in any of the courts. This then was the actual posture of the common law on this subject, and this the received

interpretation of the maxim, at the time when it was solemnly incorporated into the constitution of the United States, as an

article of a bill of rights. If this clause does not in legal contemplation, prohibit the granting a new trial after verdict in a capital case, then there is nothing in the constitution which does prohibit it, even in cases of acquittal. It may be said, that in practice a new trial is never granted in any criminal case after an acquittal. And as a matter of practice, we know that such is the common course. 2 Hawk. P. C. c. 47, § 12; and Curwood’s note, 4 Bl. Comm. 361; Rex v. Mann, 4 Maule & S. 337.

But in misdemeanors, it is perhaps still open to inquiry, whether the court do not possess the power, if it should choose to exercise it.' See 1 Chit. Cr. Law (Lond. Ed.) 657, and cases there cited; Rex v. Reynell, 6 East, 315; Coventry & H. Dig. “Trial,” IX., pl. 5, 6; People v. Olcott, 2 Johns. Cas. 301; Fost. Cr. Law, 22-40.

At all events, if any clause of the constitution does not prohibit the grant of a new trial after verdict in capital cases, there is nothing to prevent congress from investing the courts of the United States, with the power of granting new trials in all criminal cases (capital or otherwise), as well in cases of acquittal as of conviction, a power which, I imagine, has never hitherto been generally supposed to belong to that body, and which is truly alarming, both in its nature and its exercise. Let us now see, how the American authorities stand upon the same subject.

And here, it is proper to state, that my researches have not enabled me to ascertain a single ease, solemnly adjudged in the United States before the adoption of the constitution, in which after a verdict, regularly obtained, a new trial has been granted in a capital ease. In State v. Hopkins (1794), 1 Bay 373 (see also, State v. Duestoe, Id. 377), the prisoner was convicted of passing a ten pound bill, knowing it to have been forged; and he moved for a new trial; and it was granted by the court. There was another count in the indictment for forgery, upon which he was acquitted.

It does not distinctly appear upon the face of the report, that the offence was capital, though the argument of counsel would lead us to that conclusion. But no point was made at the argument as to the power of the court to grant a new trial. It was silently taken for granted on all sides. Now, whether the laws of South Carolina, gave such a power to their court in such cases, is what I have no means of knowing. But it is material to state, that the constitution of South Carolina, contains no prohibition on the subject.

There is no clause in it, like the prohibitory clause in the constitution of the United States. The point not having been made, the court did not even advert to it. In U. S. v. Fries [Case No. 5,126], in 1799. which was a trial for treason in the circuit court of the United States for Pennsylvania district, before Judges Iredell and Peters, a new trial was actually granted. This is an authority directly in point, and its bearing cannot be overlooked. But there are eircum-stances in the ':ase, which greatly weaken if they do not impugn its authority.

The counsel for the prisoner contended, that though It was not usual, to grant a new trial in a capital case, it was unquestionably in the power of the court so to do; and for this they cited 4 Bl. Comm. 391 (probably intending page 361); 1 Burrows. 304; 2 Strange, 968; and 0 Coke. 14. Now. it will be found, upon examination, that not a single one of these citations justifies the doctrine contended for. The citation from Blackstone (page 391, if the page be not miscited) contains not one word on the subject.

If page 361 was intended. the doctrine (as we hare already seen) applies only to misdemeanors. j?he case in 1 Burrows, 394, was a civil suit, and in which, Lord Mansfield discussed the right to grant new trials, with reference to such suits only. The ease in 6 Coke, 14 (Arundel’s Case), was upon a motion in arrest of judgment, because there was a mis-trial, the jury having in that case (murder) been drawn, not out of the parish, but from the vicinage of the city, or as it is phrased, that the venue ought to have been out of the parish, and not out of the city.

And the court adjudged that “the trial was insufficient, and a new venire facias was awarded to try the issue again, for his (the prisoner'

s) life was never in jeopardy.” This therefore was not a motion for a new trial, grounded upon matters, dehors the record, but for matters of error on the face of the proceedings, showing that there had been a mis-trial. or no lawful trial at all; in other words, not by lawful jurors. In Rex v. Gibson, 2 Strange, 968, the defendant was indicted for forgery (of what sort is not stated), and would have moved for a new trial (for what cause is not stated) without appearing in court; and the court refused to hear the motion, on account of his not being present. The same case is reported in 7.

Mod. 205. where it is stated to be the forgery of a note, and it must have been a forgery at the common law, which was only a misdemeanor; for it appears that the offence, was charged in the indictment to have been committed in 1713; and it was not until the statute of 2 Geo. II. c. 25 (1729), that forgery of a note was made a capital offence. 4 Bl. Comm. 249. In Fries’s Case, the counsel for the government, admitted the power of the court, to grant a new trial in capital cases, and argued solely against the validity of the grounds assigned for granting it in that case.

The point was therefore not argued: the clause in the constitution of the United States was not even alluded to, much less reasoned out. The court did not, in giving their judgment, in any manner speak to the point, and the judges were divided in opinion, as to the propriety of granting a new trial, for the cause shown; but Judge Peters yielded his opinion, and acquiesced in granting the new trial.

Now, under such circumstances, it is not too much to say, that the court might have been surprised into the de-cisión; and certainly in a ease of constitutional law, it ought to have no decisive influence, especially (as we shall presently see) that in the very state of Pennsylvania, in whose constitution a like clause exists, and where this cause was tried, the power has been solemnly denied to exist under stronger circumstances. In Com. v.

Hardy (1807) 2 Mass. 303, the supreme court of Massachusetts granted a new trial, in a capital ease, because there had been a mis-trial. the prisoner having been arraigned before an incompetent tribunal, and therefore in legal

interpretation, the trial was utterly void, as coram non ju-diee. No one can doubt the propriety of this decision. But it stands wide of the present question. In Com. v. Green, 17 Mass. 515, the very point of the right of the supreme court of Massachusetts, to grant a new trial in capital cases, after verdict, was brought before the court, and argued at large; and the decision was in favor of the power; but the new trial was denied upon the merits. In delivering the opinion of the court, Mr.

Chief Justice Parker said: “It appears by the English text books, and by several decisions cited in support of the position, that in cases of felony a new trial is not usually allowed by the courts of that country. But whatever reasons may exist in that country for this practice, we are unable to discern any sufficient ground for adopting it here.” Now, with the greatest deference for that learned judge, I cannot admit, that this language truly represents the state of the English common law doctrine on this subject.

On the contrary, as I understand that doctrine, it is no matter of practice at all (usual or unusual), in respect to which the English courts are at liberty to exercise any discretion; but it is a matter of power, which a fundamental maxim of the common law prohibits the court from exercising, in all cases (subject to the exceptions already adverted to); and which disability, nothing’but

an act of parliament can remove. It is a matter of right of every British subject, which constitutes a part of his freedom, like other great rights secured by Magna Charta. If it were a matter of mere practice, there might be some ground for an American court to adopt or reject it. But if it is a great common law right, then it stands upon a very different foundation.

The learned judge goes into a-train of reasoning to show, why in cases of acquittal, no new trial should be granted, in relation to those, whose lives have been once put in jeopardy; and also, to show that in cases of conviction, the same reasons for denying a new trial, do not apply. But I cannot find that he anywhere denies, that if a new trial is granted in a case of conviction,' the party is put a second time, in jeopardy of his life. But it is no part of my right or duty,, to enter upon the examination of the reasoning of the learned judge in that case.

First, because, in the constitution of Massachusetts, there is no clause similar to that contained in the constitution of the United States; and it is for the supreme court of the state, and not for me to decide what portion of the common law is in force therein. And secondly, because the supreme court of the state, is the appropriate and exclusive judge of its own powers under the constitution and laws of the state; and it may well be, that it has complete power to grant new trials in capital cases, when no such power exists in the courts of the United States.

If this were not (as I think it is) a question of constitutional law, under the constitution of the United States, but under the laws of the United States, I can read in the judiciary act of 17S9, c. 20. § 17 [1 Stat.

S3], that the courts of the United States have not a universal power to grant new trials, but only “power to grant new trials in cases where there has been a trial by jury, for reasons for which new trials have been usually granted in courts of law.” As far as the reasoning of the learned judge goes, it may show that it may be of great public utility, to have the power to grant new trials, in cases of capital convictions, and not in cases of capital acquittals. But this reasoning must address itself to the framers of the constitution, and not to those who are called upon to administer its actual provisions.

A case has also been cited from Virginia (Com. v. Jones, 1 Leigh. 598), where a motion for a new trial was entertained by the appellate court in a capital case after a conviction; and upon the merits was denied.

But to this ease as an authority bearing on the present question, two objections may be properly made; first, that the point was not made at the argument, nor considered by the court; and secondly, that the constitution of Virginia contains no prohibitory clause bearing upon the point; and consequently the right to entertain such a motion was dependent wholly upon the local jurisprudence; and whether it was conferred upon the court was matter of local law. turning upon no general principles. Another case has been cited from the Indiana Reports (Jerry v.

State, 1 Blackf. 395), in which a writ of error was brought in a capital case from a judgment of an inferior court, refusing to grant a new trial to the prisoner after a conviction, which was moved for upon the ground that the verdict was contrary to evidence. The supreme court of the state ordered the judgment of the court below to be reversed, and the verdict set aside, and a new trial granted upon the ground that strong doubts remained, whether the testimony supported the verdict.

Upon this case it may in the first place be remarked, that a writ of error for the refusal of a court to grant a new-trial does not lie at the common law; and so it has been repeatedly held in the supreme court of the United States, the granting of such new trial in any ease being a matter of discretion. So that the case must stand upon some peculiarity of the local jurisprudence.

And in the next place, though the constitution of Indiana does contain a prohibitory clause, like that in the constitution of the United States, it is not even alluded to-in the opinion of the court, short and unsatis- ■ factory as it is; and therefore we cannot know whether the point has ever been argued in that state, or not. Under such circumstances the case can have no intrinsic authority here. In no one of the eases heretofore cited has the clause of the constitution of the United States been brought under the review of the court, or its

interpretation ascertained. But there are cases in other courts of great respectability in which the question has come solemnly in judgment; and the true intent and meaning of the clause has been severely sifted. If I do not greatly mistake, some of these cases will be found to carry an opposite doctrine far beyond the limits necessary for the decision of the present case. One of these eases is People v. Goodwin (1820) 18 Johns. 187, where the whole subject was most elaborately examined by the counsel and the court.

It was an indictment for manslaughter. and the jury, after the whole cause was heard, being unable to agree, were discharged by the court without the consent of the defendant. The question was. whether under these circumstances the defendant could be again put upon his trial. On the part of 'the defendant it was contended that he could not, among other reasons, because the constitution of the United States had declared. “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb;” and that putting the party upon trial was putting him in jeopardy of life and limb.

The argument on the other side was, that this clause did not apply to state courts; and if it did, it was inapplicable to the cause, for if the cause was sent to another jury, the defendant would not be twice in jeopardy, nor twice tried, for there never had been a • trial, in which the merits had been decided on.

The court inclined to the opinion that the clause was operative upon the state courts; but at all events that it was a sound and fundamental principle of the common law, that the true meaning of the clause was that no man shall be twice tried for the same of-fence; that the true test by which to decide the point, whether tried or not. is by the plea of autre fois acquit, or autre fois convict; and, finally, (what is more direct to the present purpose), that in a legal sense “a defendant is not once put in jeopardy until the ver-diet is rendered for or against him, and if for or against him he can never be drawn in question again for the same offence.” And the court accordingly held that the discharge of the jury before giving a verdict was no bar to another trial of the defendant.

Soon aft-erwards (in 1822) the same question occurred in Pennsylvania, before the supreme court of that state, in the case of Com. v. Cook, 6 Serg. & R. 577; and what makes it still more direct, as an authority, there is a provision in the state constitution of Pennsylvania exactly like that in the constitution of the United States. The court held that the discharge of the jury, because they could not agree, was unlawful, and was not a case of necessity within the meaning of the rule on the subject. Mr.

Chief Justice Tilghman on that occasion said, where a party “is tried and acquitted on a bad indictment, he may be tried Again, because his life was not in jeopardy. The court could not have given judgment against him, if he had been convicted.

But where the indictment is good, and the jury are charged with the prisoner, his life is undoubtedly in jeopardy during their deliberation.” “I grant that in case of necessity they (the jury) may be discharged; but if there be any thing short of absolute necessity, how can the court, without violating the constitution, take from the prisoner his right to have the jury kept together until they have agreed, so that he may not be put in jeopardy a second time?” So that the opinion of the learned chief justice, á fortiori, manifestly is, that if a verdict has been once regularly given upon a good indictment, the prisoner could not be tried again.

Mr. Justice Duncan was still more full upon the point. After adverting to the case of People v. Goodwin, and the construction there given to the clause now under consideration, he said, “I feel a strong conviction that the construction here (there) given to this provision of the constitution of the United States, engrafted into the constitutions of Delaware, Kentucky, and Tennessee, and made an

article in the bill of rights of this state, is not the true one, and that the provision that no person can be put twice in jeopardy of life and limb, means something more than that he shall not be twice tried for the same offence.

It is borrowed from the common law; and a solemn construction it had received in the courts of common law ought to be given to it,” &e. “This is not the signification of the words used in their common use nor in their grammatical or legal sense. ‘Twice put in jeopardy,’ and ‘twice put on trial,’ convey to the plainest understanding different ideas,” &c. “There is a wide difference between a verdict given and jeopardy of a verdict. Hazard, peril, danger of a verdict, cannot mean a verdict given.

Whenever the jury are charged with a prisoner, where the offence is punishable by death, and the indictment is not defective, he is in jeopardy of life.” And he accordingly held, that in that case the jury, having been discharged, without giving any verdict, for an unjustifiable cause and without necessity, the prisoner was not liable to be tried again. And here I might repeat, á fortiori, if the jury had given a verdict he could not be tried again. The same question came before the supreme court of North Carolina in State v. Garrigues, 1 Hayw. (N.

C.) 241, and very recently again (in 1828, in Re Spier, 1 Dev. 491) before the same court, where the jury in a capital case had been discharged without legal necessity and had given no verdict. The court held that the prisoner could not be again tried. Upon this occasion the cases in the supreme courts of Massachusetts, New York,' and Pennsylvania were cited, and the court adopted that of the supreme court of Pennsylvania, and affirmed the exposition of the clause given by that court, that no man shall be twice put in jeopardy, &c. for the same offence. Mr.

Justice Hall said: “When the jury were thus charged with the prisoner he certainly stood upon his trial; his life was jeopardized;” and he afterwards proceeded to the exceptions of a discharge from necessity, and when the indictment is bad. Mr. Chief Justice Taylor delivered a more elaborate opinion, insisting that “twice put in jeopardy," and “twice put on trial,” convey to the mind several and distinct meanings; for we can readily understand how a person has been m jeopardy, upon whose case the jury have not passed. The danger and.peril óf a verdict do not relate to a verdict given.

When the jury are impannelled upon the trial of a person for a capital offence, and the indictment is not defective, his life is in peril or jeopardy, and continues so throughout the trial.

Now, whatever diversity of opinion there may be among these, learned judges as to the right and power of the court to discharge the jury in a capital case from giving any verdict, except in cases of extreme necessity, all of them agree in this, that after a verdict once given by the jury in a capital case, upon a good indictment, the party cannot be again tried for the same offence; and that such an attempt would be a violation of the constitution of the United States.

The judges in Pennsylvania and North Carolina go farther, and deem the ease within the prohibition of the constitution, if the party is once put upon trial before a jury, and the jury is discharged without giving a verdict, except in cases of extreme necessity. Upon the question of discharging a jury In capital cases, the supreme court of the United States have in the ease of U. S. v. Perez. 9 Wheat. [22 U. S.] 579, adopted the doctrine of the supreme court of New York.

Upon that occasion the court did not go into any exposition of the clause in the constitution now under consideration; but simply stated that in the case of Perez, the prisoner had not been convicted or acquitted, and therefore might again be put upon his defence. But I think I may say, that it was never for a moment at that time understood by the court, that if there had been a verdict of conviction or acquittal, the prisoner could be again tried for the same offence. The point was not before the court, and was not at all examined. In the very recent case of People v.

Comstock, 8 Wend. 549, the supreme court of New York treated it as perfectly certain and settled “that in offences greater than misdemeanors, a new trial cannot be granted on the merits, even where the prisoner has been convicted;” and the court placed the doctrine upon the same basis on which the English cases already cited have put it. I am not unaware that there is some general language attributed to the court in People v. Stone, 5 Wend. 39, which may bear a different

interpretation. But it was a mere obiter dictum, and stands overruled by the later and more exactly considered cases. Now, in the face of these authorities bearing directly on the point, and in which the

interpretation of the clause of the constitution was before the court, I confess myself greatly distressed in attempting to give a different

interpretation, without reducing the words to an unmeaning formulary, vox_ et prseterea nihil. I find that my brother, the late Hr. Justice WASHINGTON, in the case of U. S. v. Haskell [Case No. 15,321], where a jury had been discharged in a capital ease, before verdict, on account of the insanity of one of the jurymen, held that there might be a new trial; and that the discharge was no bar to a further prosecution—upon that occasion, he said that the jeopardy spoken of in this

article can be interpreted to mean nothing short of the acquittal or conviction of the prisoner, and the judgment of the court thereon. And he asserted this to be the meaning affixed to the expression of the. common law. Upon this I should greatly doubt as a doctrine universally true, especially when I find that it differs from the doctrine maintained by Mr. Justice Blackstone in his Commentaries (4 Comm. 33(5), as well as in some other authorities (see, on this subject, Vaux’s Case, 4 Coke, 44, 45; Wigg’s Case, Id. 45, 46; 2 Hawk. P. C. c. 36, §§ 13. 14, 19. But see 2 Hale, P.

C. c. 32, p. 251; Id. c. 55, p. 391; Id., c. 31, p. 243); for, then, there would be no distinction between the plea of autre fois convict and the plea of autre fois attaint, of the same offence; and yet a distinction is manifestly maintained between them.

And if it were’ even true that the plea of autre fois acquit or autre fois convict without a judgment, could not be pleaded technically as a bar to another prosecution or another indictment, it would not follow that it might not be a good bar to a new trial upon the same indictment, when there had already been one trial regularly had upon the ground of the maxim already adverted to; for upon the first trial the life of the prisoner was certainly in jeopardy. Mr. Justice Washington afterwards says, that the

article does not apply to a jeopardy short of a conviction; which may be true, if we are to understand by conviction (as is certainly the legal sense), a verdict against or confession by the party of record. See 4 Bl. Comm. 362; 4 Coke, 46; 2 Hawk. P. C. c. 36, § 9; 1 Chit. Cr. Law (2 Lond. Ed.) 462. But what with me is decisive against the construction of the clause of the constitution given by Mr. Justice Washington is, that he puts it as clear upon his

interpretation, that after a verdict of acquittal in a capital case (upon a good indictment) the court might still award a new trial against the prisoner. And he puts the case (to illustrate this doctrine) of an acquittal of the prisoner procured by his own fraud. Now, I am not aware that the maxim has ever received such an

interpretation from any other judge; and all the authorities which I have seen are against it. I confess my extreme repugnance to adopt any

interpretation of the maxim, which shall lead to such consequences. It would remove the whole force of the prohibition, and submit the whole subject in criminal trials to the discretion of the court. I have always understood that the great object of this clause was, on the contrary, to take away all discretion, and to forbid all courts of the United States from trying a man twice upon a good indictment for the same offence. It has been supposed that in all cases of conviction there may be ground to grant a new trial, because it will always be in favor of the prisoner.

If this were true, the difficulty would still remain, that the constitution does not provide for a new trial only where it is favorable to the prisoner. If the twice being put in jeopardy is referrible only to cases after judgment, and not after verdict; and before judgment, even a new trial may be granted, though it may be unfavorable to him. Cases of conviction may readily be conceived, in which a new trial may be injurious to the prisoner. If, after conviction, it may be granted at his request, it may also be granted without his consent.

Suppose a man indicted for murder and convicted of manslaughter; can a new trial be granted at all, unless by putting him twice in jeopardy of his life? Suppose a robbery of the mail, charged in the indictment with being effected by wounding the carrier, or putting his life in jeopardy (which is a capital offence), and there is a conviction of the robbery without such aggravated circumstances, can a new trial be granted, upon the application of the government or of the prisoner?

Many other cases of a like nature may be easily put, where the offence in an aggravated form is a capital felony, and without such aggravations not. Yet the power to grant a new trial ip cases of conviction, if it exists at all, is general, and may be required by the government as well as by the prisoner. Upon the whole, having given this subject the fullest consideration.

I am, upon the most mature deliberation, of opinion that this court does not possess the power to grant a new trial, in a case of a good indictment, after a trial by a competent and regular jury, whether there be a verdict of acquittal or conviction. My judgment is, that the words in the constitution, “Nor shall any person be subject, for the same offence, to be twice put in jeopardy of life or limb,” mean that no person shall be tried a second time for the same offence, where a verdict lias been already given by a jury.

The party tried is in a legal sense, as well as in common sense, in jeopardy of bis life, when a lawful jury have once had charge of his of-fence as a capital offence upon a good indictment, and have delivered themselves of the charge by a verdict. In this respect I follow the doctrine of the supreme court of New York; and the doctrine of the supreme court of Pennsylvania and North Carolina goes not only to the same extent, but includes cases where the party is once put upon his trial before the jury, and they are discharged from giving a verdict without extreme necessity.

This too is the clear, determinate and well settled doctrine of the common law, acting upon the same principle, as a fundamental rule of criminal jurisprudence. I deem it a privilege of inestimable value to the citizen; and that it was introduced into the constitution upon the soundest principles of prudence and justice. Büt if it were otherwise, it is my duty to administer the constitution as it stands and not to incorporate new provisions into it.

If this clause does not prohibit a new trial, where there has already been a regular trial and verdict, then it is wholly immaterial whether the verdict is of acquittal or of conviction of the offence; and the same party may, in the discretion of the court, be put upon his trial ten, nay, twenty times, if the court should deem it fit.

It was (as I think) among other things, to get rid of the terrible precedents on tills subject alluded to by Lord Hale, and even acted upon by him, in the reign of Charles n., in discharging juries from giving verdicts upon frivolous or oppressive suggestions, that this great maxim of the common law was engrafted into the constitution.

The constitution has also in another clause declared, that “no fact once tried by a jury shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.” The only modes of making this re-examination known to the common law, are by a writ of error and a new trial, and if by the common law there cannot be a new trial in a capital case, after a regular trial once had upon a good indictment, as seems to me to be conclusively established by the English authorities already cited, then this clause also carries in its bosom another virtual prohibition.

Lest I should be thought to have overlooked the case of U. S. v. Daniel, 6 Wheat. [19 U. S.] 542, where the circuit court divided upon the motion fo® a new trial, I beg only to say that the point whether the circuit court had jurisdiction to grant a new trial in a capital case, was not before the court. It was a mere certificate of division of opinion of the circuit court; and the supreme court held that it had no jurisdiction to entertain the point certified, so far as it regarded a new trial.

If the language used by me in the Com-mentarieson the Constitution (3 Story, Const, c. 38, § 178) should be thought to inculcate a different doctrine, I can only say that I do not so understand it. I have no doubt that there are cases where there may be a new trial; as in cases of a mis-triai by an improper jury. See People v. M’Kay, 18 Johns. 212; 2 Hawk. bk. 2. c. 38. § 15; Rex v. Keite, 1 Ld. Raym. 139; 2 Hawk. P. C. c. 27, § 104; Id. c. 47, § 12; Arundel’s Case, 6 Coke, 14. But in the language there used.

It should be considered that the author was _not summing up his own private or judicial opinions, but only gathering together the opinions of others, which had come to his knowledge, to illustrate the text. But if there be any erroneous opinions inculcated in those Commentaries, which upon more deliberate examination I should deem unfounded. I trust that I shall be the last person to insist upon them as obligatory or correct. My duty, as a judge, is to pronounce such a judgment as my conscience dictates, without reference to any preconceived opinions.

But I freely admit that I see nothing in that passage of the Commentaries, so far as relates to the granting of new trials, which I deem incorrect, or which I wish to retract. It may be thought by some, that there may be great inconvenience in the establishment of this doctrine. But if there be, it is for those who possess the power to amend the constitution to apply the proper remedy.

For myself, I entertain great doubts whether, in the actual administration of public justice, the present doctrine would not be far more safe and useful than an unlimited power to grant new trials in all capital cases, at the mere discretion of the court. It may be, that a court may sometimes err in the proper administration of the law; and it may also err in granting or refusing a new trial.

But the consciousness that the trial is final, will always impress every court, mindful of its duty, with the utmost caution in all its opinions and judgments in capital cases, where the result may be unfavorable to the prisoner. It will naturally induce it to lean-to the side of mercy; and it will look anxiously to the dictates of the law. But still if, after all, errors should intervene, it will be but the common infirmity of the administration of all human justice. And the prisoner, even in such a case, will not be wholly without redress.

He may apply for a pardon or mitigation of the sentence, to the executive; and it cannot be doubted that the court itself, if conscious of any serious error, would cheerfully aid in his application. Hitherto this ultimate appeal to the pardoning power has been deemed satisfactory and safe in the land of our ancestors down to our own age: and it has been deemed equally satisfactory and safe in all those states whose jurisprudence does not permit a new trial in capital cases under .like circumstances.

But whatever might be .my opinion as to the authority of this court to grant a new trial in capital cases generally, I shall, under the present circumstances go over all the grounds, insisted upon by the prisoner’s counsel (some of which being in arrest of judgment, are indispensable to be disposed of before judgment), because if any error in point of law has been committed by the court, injurious to the prisoners, or upon established principles of law, they ought (if the court could grant it) to have a new trial, I should feel it.my duty to make a direct application in their behalf to the executive for a pardon, to ré-dress the error.

God forbid that any man in this country should suffer death against the law, from the mere infirmity of judgment of those who are appointed to preside at his trial. The first cause assigned for a new trial is the discovery of new evidence. For the present I shall pass over this point, intending to examine it when all the other grounds shall have been passed under review. The second cause is, that the prisoners were not permitted to be tried separately, although they made a motion for this purpose.

Now, this has been long since settled by the supreme court of the United States to be a matter, not of right, but of sound discretion to be exercised by the court. So it was held in the case of U. S. v. Marchant, 12 Wheat. [25 U. S.] 480, upon the fullest consideration. The sole ground upon which the present motion was made, was that by means of separate trials, the prisoners wished and intended to make use of the testimony of each other in their defence.

Now I was of opinion, and still am, that the reason assigned was wholly, in a legal- point of view, inadequate to justify the court in the exercise of such a discretion. The charge was a charge of a joint piracy on the high seas, committed by all the prisoners, found by the grand jury upon their oaths, and therefore to be taken prima-facie to be well supported by competent evidence before them.

There is no pretence now to say, when the trial has been had, that there was not a solid ground of probable cause to put all the prisoners in the indictment as confederates in the act, or that any of the prisoners were included upon mere false suggestions, to evade their testimony. It is ■ clear by law that confederates in the same piracy, put upon trial at the same time, are not competent witnesses for each other. And I do exceedingly doubt whether in point of law the court possess the right to make witnesses competent in a trial by any act of their own, who would otherwise be incompetent.

The government has rights as well as the prisoners. The government is not to be deprived of its rights merely because the prisoners request a separate trial. In a joint trial the government has a right to exclude all the prisoners from being witnesses. If the court deprive the government of this right, it is an exercise of power which may sometimes subvert the purposes of justice. It certainly does not necessarily promote it.

It is no just cause of complaint on the part of prisoners, that they stand jointly indicted; for they can rarely be so, except where they have mixed themselves up with the criminal transaction in a manner which in the sober judgment of the grand jury implicates them in the common guilt. I have never before known a case, in which the sole ground for a separate trial has been to make the witnesses competent for each other.

In the only cases in the circuit court in which a separate trial has been granted, there has been an express disclaimer of using the confederates as witnesses; and the defence has been exclusively placed upon several and distinct grounds. In the present case the main argument was at the trial, and now is rested upon a defence common to all the prisoners-, viz. that the robbery was not by the Panda or her crew; but by some wtlier vessel. If. therefore, the question were now to be decided over again, I should, under the circumstances, refuse to concur in a separate trial of the prisoners.

I should doubt the legal right so to do. for the cause assigned. And I cannot but think that the granting it in a case of this sort (in which, if in any case, there ought to be a joint trial), would be an abuse, and not a just use of a sound discretion. The third, fourth and fifth causes embrace in different forms the same subject matter.

The prisoners, who are all foreigners and strangers to our institutions, and do not, as far as we know, speak or understand the English language, and with whom the court could communicate only by an interpreter, were, after the indictment was found against them, brought into court and were informed that they were entitled to copies of the indictment, and should be-furnished with, them two full days before they were required to plead; and that they were entitled to counsel to assist them in the de-fence, and that the court would assign such counsel as they desired,—and accordingly the learned gentlemen, who have since conducted the defence, were so assigned; and that at a subsequent time, after two full days, they would be arraigned and required to plead to the indictment.

Accordingly, after this period had elapsed and the copies were duly furnished, the prisoners were brought to the bar. and in the presence of their counsel were arraigned, and upon their arraignment they severally pleaded not guilty.

But, as is said, the clerk of the court upon this arraignment did not further proceed, upon their pleading not guilty, to ask the prisoners how they ■ would be tried, so that they did not make the usual and common reply, “By God and the country.” The district attorney then moved the court to assign a time for the trial of the prisoners, and accordingly, at the request of the prisoners’ counsel, a particular day, named by themselves, was assigned for the trial.

It was then stated to the prisoners, that they were to be tried by a jury, that the list of the jurors would be furnished to each of them land they were accordingly furnished) two full days before the trial, that they might exercise their full right of challenge.

Accordingly at the time assigned the prisoners were brought to bar for trial; they, were then distinctly and in the usual manner informed by the clerk, that they were then set at the bar to be tried, and that the good men and true, whom he was then to call, were to pass between them and the United States at the trial; and that if they would object to any of them, they must do it as they were called, and before they were sworn.

The jury were accordingly called, and not the slightest objection to the trial by the jury was intimated, either by the prisoners or their counsel; but the prisoners proceeded, with the assistance of counsel, to make their challenges, (amounting, I believe, in all, to thirty-six), and all the jurors sworn and impannelled were those to whom they declared that they had no objection. The whole cause was then most elaborately examined and heard; the fullest defence made; and the jury returned their verdict, as it appears upon the record.

Now, the.objection is, not that no similiter is joined (for it is admitted that this is not necessary) but that there is no issue to the country, until the prisoners have expressly put themselves, by the words alrea

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