I concur with the presiding judge in the disposal of the motions before us, in this very serious case, which has so long engaged the devoted and solicitous attention of the court, counsel, and jury. With the grounds and reasons *1316of that opinion my own views coincide, excepting in one point, and on that, from its important bearing, as a constitutional question, I consider it a duty to express my opinion. I refer to that part of the argument, which rests the denial of a power, in the courts of the United States, to grant a new trial, on the merits, in a capital case, though at the request of a person convicted, on the üth article of amendments to the constitution, declaring, that “no person shall be subject, for the same offence, to be twice put in jeopardy of life or limb.” The case of a person convicted of a capital offence, put on trial again, would certainly be embraced by the terms of the article; and yet, in my view of the question, it would not present a case within its true intent and meaning. The article, in the amendments to the constitution, corresponding to a rule of the common law, according to the prevailing spirit and character of those amendments generally, was doubtless intended for the security and benefit of the individual. As such it may be waived and relinquished. That the request of a prisoner for a new trial, affording a chance of escape from death to which a previous conviction would assign him, should be rejected, from adherence to the letter of the rule, that his life would be again in jeopardy, would present an incongruity not readily to be admitted. It is true, that according to approved authorities, the plea of autre fois convict depends on the same principle as the plea of autre fois acquit, that no man ought to be twice brought in danger of his life, for one and the same cause. Bl. Comm. bk. 4, e. 26; 2 Hawk. P. C. 377. The doctrine establishes a right in the prisoner to resort to that defence, if it be attempted or moved, against his will, to subject him to a second trial. The case of a verdict of conviction set aside, at the request of the prisoner, is not suggested in those authorities, and would stand, in my opinion, on very different ground. The previous conviction would not, I apprehend, under such circumstances, be considered as a sufficient bar to a second trial. The concise manner in which many general maxims of the law are expressed, like general rules on other topics, admits or requires, in their application, distinctions, exceptions, and qualifications, all just, reasonable, and, in some instances, indispensable, not expressed in their terms. We have an- instructive exemplification of this in an early ease, in the supreme court of the United States, in which the meaning of the prohibition, in the constitution, of ex post facto laws, came in question. “I do not consider,” said Mr. Justice Chase, “any law as ex post facto, that nullifies the rigor of the criminal law, but only those that create or aggravate the crime, or increase the punishment, or change the rules of evidence for the purpose of conviction.” 3 Dali. 391. The benign spirit, ever pervading our law, which dictated that distinction, may, as appears to me, have a proper influence and application, in reference to the rule of law under consideration, and in other instances of analogous character. By the old common law, observes Sir W. Blackstone, the accessory could not be arraigned till the principal was attainted, “unless he choose it, for he might waive the benefit of the law.” Comm. bk. 4, c. 25 And in People v. McKay, 18 Johns. 212, a case of murder, Chief Justice Spencer remarks: “We know of no case which contains the doctrine, that where a new trial is awarded, at the prayer and in favor of a person that has been found guilty, he shall not be subject to another trial.”4 On the whole, I am not convinced that the article of the constitution under consideration, would, in just and reasonable construction, be a bar to a new trial granted at the request of a person capitally convicted. I am not aware that there is any direct decision on this point. It is an open question. If a second trial in capital cases, be inadmissible, under the article, though at the request of the prisoner, then no legislative enactment can vary the law on the subject, without an amendment of the constitution. The question may thus become highly important, though the article should be binding only in the courts of the United States; still more sc if, conformably to Chief Justice Spencer’s opinion, it extend to decisions in the state courts. A decision on this point, however, is not essential, as this case stands, to a determination on the motion for a new trial, in which, notwithstanding a difference in opinion in reference to the constitutional question, we come to-the same result. The discretion of the court on the subject of new trials is not unlimited. They are allowable “for reasons for which new trials have usually been granted in the courts of law,” and with this statute direction, we are to bear in mind the 7th article of amendments to the constitution—“No fact tried by a jury, shall be otherwise re-examined, in any court of the United States, than according to the rules of the common law.” Having reference to such directories, should the motion for a new trial in this-case be allowed, there would, in my opinion, be a departure from the usages of courts *1317of law, and from the principles manifested by the great current of decisions in cases of this description.
I agree with the presiding judge, in the views which he has expressed on the motion in arrest of judgment, as well as with those on the motion for a new trial, excepting in the instance which I have specified, and in the result, that the motions be overruled.
The decision of the court was then interpreted to the prisoners.
Mr. Child then begged leave to file a bill of exceptions, with a view of carrying the case before the supreme court, and urged that the case involved several important points of law.
THE COUBT replied, that they must proceed to pass the sentence; but the motion of Mr. Child could be taken into consideration, and would be acted upon hereafter.
Mr. Child then earnestly pressed upon the court to respite the execution, to give time to send to Havana and England, to clear up this dark and mysterious affair.
THE COUBT said it should be allowed, and if the time proved not long enough, the executive clemency would no doubt extend it, by a reprieve.
STOBY, Circuit Justice, after hearing the several protests of innocence from the prisoners, on motion of Dunlap, Dist. Atty., proceeded to pronounce the sentence of the court, as follows:
Prisoners at the Bar: The motions made by your counsel for a new trial and in arrest of judgment having been overruled by the court, and all other matters disposed of, it is now my painful duty to pronounce the sentence of the law upon each of you, for the crime whereof you severally stand convicted. I shall do this in as brief terms as possible, being conscious of the difficulty of addressing you through the medium of an interpreter only. The sentence is, that you, and each of you, for the crime whereof you severally stand convicted, be deemed, taken, and adjudged to be pirates and felons, and that you, and each of you, be therefore severally hanged by the neck until you are severally dead. That the marshal of this district, or his deputy, do, on peril of what may fall thereon, cause execution to be done in the premises upon each of you on the -11th day of March next ensuing, between the hours of 9 o’clock in the forenoon and 12 o’clock at noon, of the same day, and that you now be taken from hence to the jail in Boston, in this district, from whence you came, there, or in some other safe and convenient jail within the same district, to be closely kept until the day of execution; and from thence, on the day of execution appointed, as aforesaid, you are severally to be taken to the place of execution, there to be hanged, as aforesaid, until you are severally dead. I earnestly recommend to each of you to employ the intermediate period in sober reflections upon your past life and conduct, and by prayer and penitence, and religious exercise, to seek the favor and forgiveness of Almighty God for any sins and crimes which you may have committed; and for this purpose I earnestly recommend to you, and to each of you, to seek the aid and assistance of the ministers of our holy religion of the denomination of Christians to which you severally belong. And in bidding you, so far as I can presume to know, an eternal farewell, I offer up my earnest prayers that Almighty God may in his infinite goodness have mercy on your souls.
The above sentence was then interpreted to the prisoners by a sworn interpreter.
David L. Child, of counsel for the prisoners, now (on the 23d day of December), in pursuance of a suggestion' made by him a week before, and immediately after the opinion of the court overruling the motion for a new trial and in arrest of judgment, moved to file a bill of exceptions, and requested the court to sign the same, if found true. THE COUBT said that the bill might be filed, if the counsel wished it, on the record; but it could not be allowed by the court. And it was accordingly filed, but without having been read, the counsel not wishing to read it, after the opinion of the court was stated.
STOBY, Circuit Justice. This being the case of a capital conviction, when the counsel f..r the prisoners, a week ago, suggested an intention to offer a bill of exceptions, the court then stated, that it would be expected that he should show some authority to justify the court in allowing a bill of exceptions in a capital case. It is now admitted, that the counsel have no authority to cite, which affirms the power in this court. And it is believed by the court, that none exists. We have, however, in the interval between the suggestion and the present time, deliberately examined the point, and are fully satisfied, that no such power exists in this court; and therefore it has not been deemed necessary to examine the correctness of the exceptions stated in the bill, which has been proffered.
In the first place, no power is given by statute to this court, to allow any bill of exceptions in any criminal case whatsoever: and it seems impossible to infer it by implication from any provisions in the laws of the United States. The circuit courts have final jurisdiction of all eases of crimes; and no writ of error or appeal lies to the supreme court in any such cases. Now, the sole object of a bill of exceptions is to present the matter for the revision of some superior court; and if no revision can be had, then the authority to allow a bill of exceptions would be utterly nugatory. The only mode contemplated by the laws of the United States to revise the opinions of the judges of the circuit courts in criminal cases is, when the *1318judges are divided in opinion at the trial; and then the point of division may be certified to the supreme court for a final decision under the judicial act of 1802 (chapter 31, § 0). There was no such division upon the present trial. If resort be had to the common law to aid us in examining this point, it will be found, that no bill of exceptions lies, in capital eases, even since the statute of "Westminster H. (13 Edw. I. St. 1) c. 31, which first gave a bill of exceptions. And the better opinion certainly now is, that that statute is confined to civil proceedings, and does not extend to any criminal proceedings whatsoever. As the authorities are not all agreed on this point in cases of mere misdemeanors, it is not-necessary here to decide it in regard to the latter. But in capital cases, in cases of treason and felony, it is universally agreed in England, that no bill of exceptions lies. This was solemnly settled in the case of Rex v. Vane, which was a case of high treason. It is reported in 1 Lev. 68, and in various other Reports. See Buller, N. P. 316; 1 Chit. Cr. Law (English Ed.) 622; Willes, 035, and note (b), which cites 2 Inst. 424, and Saville, 2. The very point was made, and according to Leving’s Reports, it was held by the court, “that a bill of exceptions does not lie in criminal cases, but only in actions between party and party.” The application was accordingly overruled, and Sir H. Vane was executed on Tower Hill. The same doctrine is laid down in Hawkins (2 Hawk. P. C. c. 46, § 198), who says: “It hath been adjudged, that no bill of exceptions is grantable on an indictment of treason or felony, the statute of Westminster, etc., having never been thought to extend to any such case.” Lord Hard-wicke, in Rex v. Inhabitants of Preston, Cas. t. Hardw. 251, 2 Strange, 1040. said: “Nor was it ever pretended, that in capital cases a bill of exceptions lay. In Vane’s Case, it is not said to lie in any criminal case. But that point is not settled, and therefore I will give no opinion as to that.” In Bacon’s Abridgment (1 Bac. Abr. “Bill of Exceptions”) it is said: “It is agreed that no bill of ex-eeptions is to be allowed in treason or felony.” And the same doctrine will be found in other elementary writers (see Buller, X. P. 316; 1 Chit Cr. Law, English Ed., 622; Willes, 535, and note b, which cites 2 Inst. 424, and Saville, 2), and no authority to the contrary can be found. In People v. Holbrook, 13 Johns. 90, S. P. 6 Cow. 565, it was held by the supreme court of New York that no bill of exceptions lies in any criminal case; and this doctrine is not only supported by Vane’s Case, but by Rex v. Barkstead, 1 Kreb. 244; T. Raym. 468; 1 Sid. 85.
There is then no pretence to say, that in capital cases this court can draw in aid the doctrines of the common law, as administered in England, to confer such a power. It is not implied from any statute authority. It is not implied in any reasoning at the common law, or under the statute of Westminster. We are therefore of opinion, that this court possesses no such authority; and we dare not assume what has never been confided to the court.
If this objection were not. as we think it is, conclusive, we think, that the bill of exceptions ought not now* to be allowed, upon another and a distinct ground. It was not made or tendered at the trial, nor until a long time afterwards, and after a motion made and argued for a new trial and in arrest of judgment, and the opinion of the court deliberately had thereon. Under such circumstances, where the verdict was satisfactory, and the court feel no doubt about the law, it is our opinion, that the bill of exceptions ought not to be allowed. It is not within the general principles, which regulate rights of this sort. See 1 Salk. 288; 8 Mod. 222 ; 2 Tidd. Prac. 788. The government has its rights, as well as the prisoners.
Bill of exceptions not allowed.
McKay was convicted on an indictment for-murder. Judgment was arrested, on motion in his behalf, for defect in the issuing and return of the venire. Agreeably to repeated decisions, there may be a new trial, in all eases, where there has been a mis-triai or mere irregularity in the former trial, vitiating or vacating the proceedings. But the question made by the counsel in that case, whether the arrest of judgment did not entitle the prisoner to be discharged, does not appear to have been met by the court on that ground. “It will be observed,” says the chief justice, “that the judgment is arrested on the motion of the prisoner, an act done at the request, and for the benefit of the prisoner, weave clearly of opinion cannot exonerate him from, another trial.”