Opinion of the Court. from any statute, but had obtained under judicial sanction by a long practice; and has held that neither art. 4, sec. 8, of the State constitution of 1876, giving that court "jurisdiction to review upon appeal any decision of the courts below upon any matter of law or legal inference," nor art. 4, sec. 27, of the same constitution, providing that in all criminal cases before a justice of the peace "the party against whom judgment is given may appeal to the superior court, where the matter shall be heard anew," gave any right of appeal to the State, but only to the defendant. State v. Hadcock (1802) 2 Haywood, 162; State v. Lane (1878) 78 No. Car. 547; State v. Swepson (1880) 82 No. Car. 541; State v. Moore (1881) 84 No. Car. 724; State v. Powell (1882) 86 No. Car. 640. The Court of Appeals of Maryland, in 1821, sustained a writ of error by the State to reverse a judgment in favor of the defendants on demurrer to the indictment, citing a number of unreported cases decided in that State in 1793 and 1817. State v. Buchanan, 5 Har. & Johns. 317, 324, 330. But the same court, in 1878, refused to construe a statute of 1872, providing that in all criminal trials it should be lawful for the attorney for the State to tender a bill of exceptions and to appeal, as authorizing the court, on such exceptions and appeal, to order a new trial after a verdict of acquittal. State v. Shields, 49 Maryland, 301. In Louisiana, in the leading case, the court admitted that to allow the State to bring a writ of error in a criminal case was contrary to the common law of England, to the law of most of the States, and to the general opinion of the bar; and the later cases appear to be put largely upon the ground that the practice had become settled by a course of decision. State v. Jones (1845) 8 Rob. (La.) 573, 574; State v. Ellis (1857) 12 La. Ann. 390; State v. Ross (1859) 14 La. Ann. 364; State v. Taylor (1882) 34 La. Ann. 978; State v. Robinson (1885) 37 La. Ann. 673. The Supreme Court of Pennsylvania, from an early period, occasionally entertained, without question, writs of error sued out by the State in criminal cases. Commonwealth v. Taylor (1812) 5 Binney, 277; Commonwealth v. McKisson (1822) 8 S. Opinion of the Court. & R. 420; Commonwealth v. Church (1845) 1 Penn. St. 105. The first mention of the question appears to have been in a case in which the only objection taken to the right of the Commonwealth to sue out a writ of error was that the writ had not been specially allowed; of which the court said: "There is nothing in the disabling provisos of the statutes to limit the right of the Commonwealth; and the powers of this court, whether deduced from the common law, from the old provincial act of 1722, or from legislation under our state constitutions, are quite competent to the review of any judicial record, when no statutory restraints have been imposed. It would be very strange if the Commonwealth might not appeal to her own tribunals for justice without the special consent of certain of her own officers." This theory that the State may sue out a writ of error, unless expressly denied it by statute, is opposed to the view maintained by a host of decisions above cited; and it is observable that such judges as Judge Thompson and Judge Sharswood were in favor of quashing writs so sued out. Commonwealth v. Capp (1864) 48 Penn. St. 53, 56; Commonwealth v. Moore (1882) 99 Penn. St. 570, 576. In many of the States, indeed, including some of those above mentioned, the right to sue out a writ of error, or to take an appeal in the nature of a writ of error, in criminal cases, has been given to the State by positive statute. But the decisions above cited conclusively show that under the common law, as generally understood and administered in the United States, and in the absence of any statute expressly giving the right to the State, a writ of error cannot be sued out in a criminal case after a final judgment in favor of the defendant, whether that judgment has been rendered upon a verdict of acquittal, or upon a determination by the court of an issue of law. In either case, the defendant, having been once put upon his trial and discharged by the court, is not to be again vexed for the same cause, unless the legislature, acting within its constitutional authority, has made express provision for a review of the judgment at the instance of the government. In the light of these decisions, we come to the consideration Opinion of the Court. of the acts of Congress on the subject of writs of error in criminal cases. The appellate jurisdiction of this court rests wholly on the acts of Congress. For a long time after the adoption of the Constitution, Congress made no provision for bringing any criminal case from a Circuit Court of the United States to this court by writ of error. At February term, 1803, indeed, this court, no objection being made, took jurisdiction of a writ of error sued out by the United States to the Circuit Court for the District of Columbia in a criminal case. United States v. Simms, 1 Cranch, 252. But at February term, 1805, in a like case, this court, upon full argument and consideration, held that it had no jurisdiction of a writ of error in a criminal case, and overruled United States v. Simms, Chief Justice Marshall saying: "No question was made in that case as to the jurisdiction. It passed sub silentio, and the court does not consider itself as bound by that case." United States v. More, 3 Cranch, 159, 172. And it was thenceforth held to be settled that criminal cases could not be brought from a Circuit Court of the United States to this court by writ of error, but only by certificate of division of opinion upon specific questions of law. Ex parte Kearney, 7 Wheat. 38, 42; Ex parte Gordon, 1 Black, 503; Ex parte Yarbrough, 110 U. S. 651; Farnsworth v. Montana, 129 U. S. 104, 113; United States v. Perrin, 131 U. S. 55. As to each of the Territories, except Washington, the Revised Statutes provided that final judgments and decrees of its Supreme Court, where the value of the matter in dispute exceeded $1000, might be reviewed by this court, upon writ of error or appeal, in the same manner and under the same regulations as the final judgments and decrees of a Circuit Court of the United States. Rev. Stat. §§ 702, 1909. The act of June 23, 1874, c. 469, § 3, provided that a writ of error should lie from this court to the Supreme Court of the Territory of Utah, "in criminal cases, where the accused shall have been sentenced to capital punishment, or convicted of bigamy or polygamy." 18 Stat. 254. The act of March 3, 1885, c. 355, provided, in § 1, that no appeal or writ of error should Opinion of the Court. be allowed from the Supreme Court of a Territory unless the matter in dispute exceeded $5000; and in § 2 that the preceding section should not apply to any case "in which is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States, but in all such cases an appeal or writ of error may be brought without regard to the sum or value in dispute." 23 Stat. 443. At October term, 1885, this court, without objection, decided upon the merits a writ of error to the Supreme Court of the Territory of Utah by one convicted of a crime which was neither bigamy or polygamy, nor punishable with death. But at the same term, after argument upon its jurisdiction of a like writ of error, the court dismissed both writs of error, and, in answering the objection that it had taken jurisdiction of the first writ, said: "The question of jurisdiction was not considered in fact in that case, nor alluded to in the decision, nor presented to the court by the counsel for the United States, nor referred to by either party at the argument or in the briefs. Probably both parties desired a decision on the merits." Cannon v. United States, 116 U. S. 55, and 118 U. S. 355; Snow v. United States, 118 U. S. 346, 354. The question whether the provision of the act of March 3, 1885, c. 355, § 2, authorizing a writ of error from this court to the Supreme Court of any Territory in any case "in which is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States," extended to criminal cases, was then left open, but at October term, 1888, was decided in the negative. Farnsworth v. Montana, 129 U. S. 104. The manner of bringing up criminal cases from the Circuit Courts of the United States upon a certificate of division of opinion has undergone some changes by successive acts of Congress. Under the act of April 29, 1802, c. 31, § 6, whenever there was a division of opinion in the Circuit Court upon a question of law, the question was certified to this court for decision; provided that the case might proceed in the Circuit Court if in its opinion further proceedings could be had without prejudice to the merits, and that no imprisonment should be allowed or punishment inflicted, upon which the judges Opinion of the Court. were divided in opinion. 2 Stat. 159; United States v. Tyler, 7 Cranch, 285; United States v. Daniel, 6 Wheat. 542; United States v. Bailey, 9 Pet. 267. By the act of June 1, 1872, c. 255, § 1, "whenever, in any suit or proceeding" in a Circuit Court, there occurred any difference of opinion between the judges, the opinion of the presiding judge was to prevail for the time being; but upon the entry of a final judgment, decree or order, and a certificate of division of opinion as under the act of 1802, "either party" might remove the case to this court" on writ of error or appeal, according to the nature of the case." 17 Stat. 196. That act continued in force only about two years, when it was repealed by the Revised Statutes. By sections 650, 652 and 693 of those statutes, its provisions were restricted to civil suits and proceedings; and by sections 651 and 697 the provisions of section 6 of the act of 1802 were reënacted as to criminal cases. Ex parte Tom Tong, 108 U. S. 556, 559. In United States v. Reese, 92 U. S. 214, and in United States v. Cruikshank, 92 U. S. 542, argued at October term, 1874, and decided at October term, 1875, which were brought to this court by the United States, by writ of error and certificate of division of opinion, after judgment according to the opinion of the presiding judge, sustaining a demurrer to the indictment, or a motion in arrest of judgment, it appears, by the records and briefs on file, that the judgment below was entered and the certificate of division made under the act of 1872, and that no objection was taken to the jurisdiction of this court. The exercise of jurisdiction over those cases on writ of error is therefore entitled to no more weight by way of precedent than the exercise of appellate jurisdiction sub silentio in the cases, above cited, of United States v. Simms, 1 Cranch, 252, and Cannon v. United States, 116 U. S. 55. The first act of Congress which authorized a criminal case to be brought from a Circuit Court of the United States to this court, except upon a certificate of division of opinion, was the act of February 6, 1889, c. 113, § 6, by which it was enacted that "in all cases of conviction" of a capital crime in any court of the United States, the final judgment "against VOL. CXLIV-21 |