dissenting.
Both the Government and Sisson have argued that this Court has jurisdiction to review the District Court’s *309action by virtue of the “arrest of judgment” clause in the Criminal Appeals Act, 18 U. S. C. § 3731, which provides for a direct appeal to this Court
“[f]rom a decision [1] arresting a judgment of conviction [2] for insufficiency of the indictment or information, [3] where such decision is based upon the invalidity or construction of the statute upon which the indictment or information is founded.”
In rejecting the arguments of the parties the Court holds that we have no jurisdiction to hear this appeal, opting for the view that the “arrest of judgment” clause carries with it all of its common-law antecedents and that the present case does not meet the criteria required by the common law. My disagreement with the Court’s result and rationale is prompted by a fundamental disagreement with the Court’s mode of analysis and its excessive reliance on ancient practices of common-law England long superseded by Acts of Congress.
Section 3731 appears to set three requirements for jurisdiction in this Court: (1) the decision from which the appeal is taken must be one “arresting a judgment of conviction”; (2) the decision must be engendered by the “insufficiency of the indictment or information”; and (3) it must be “based upon the invalidity or construction of the statute upon which the indictment or information is founded.”
I
The first requirement, that the decision from which the appeal is taken must be one “arresting a judgment of conviction,” can without undue violence to its language be construed as being encrusted with the lore of centuries of common-law jurisprudence, and the Court has so construed it. The form of an “arrest of judgment” was well established at an early date in the common law’s development; Blackstone was able to describe a clearly defined motion in arrest as a device that was proce*310durally appropriate after the guilty verdict had been rendered but before the judge had imposed sentence. The court, in an early form of permitting allocution, traditionally asked the prisoner if he had “anything to offer why judgment should not be awarded against him.” 4 W. Blackstone, Commentaries *375. The prisoner could then respond by offering exceptions to the indictment, “as for want of sufficient certainty .in setting forth either the person, the time, the place, or the offence.” Ibid. If the prisoner was successful, the court entered an arrest or stay of the judgment. Also, under the common law, it was settled that “the Court ought not to arrest judgments upon matters not appearing upon the face of the record; but are to judge upon the record itself, that their successors may know the grounds of their judgment.” Sutton v. Bishop, 4 Burr. 2283, 2287, 98 Eng. Rep. 191, 193 (K. B. 1769) (emphasis added). The record included “nothing more than the judgment roll; and indeed, the common-law knew nothing of the evidence taken at a trial until the Statute of Westminster allowed exceptions to be sealed and a bill of exceptions to be brought up with the roll on writ of error.” United States v. Zisblatt, 172 F. 2d 740, 741-742 (C. A.. 2d Cir.) (L. Hand, C. J.), appeal dismissed on Government’s motion, 336 U. S. 934 (1949).
Much, if not all, of the common-law learning was transplanted to the United States. As early as 1807, the Court recognized the existence of the motion in United States v. Cantril, 4 Cranch 167 (1807). And, in 1820, Chief Justice Marshall stated for the Court that “judgment can be arrested only for errors apparent on the record . . . .” United States v. Klintock, 5 Wheat. 144, 149 (1820). See also Carter v. Bennett, 16 How. 354 (1854); Bond v. Dustin, 112 U. S. 604 (1884).
Whether § 3731’s requirement of an arrest of judgment incorporates the common-law jurisprudence, or *311whether it is viewed as simply looking to the standards of Rule 34, Fed. Rules Crim. Proc.,1 the Court has indicated that it believes that the decision of the District Court here was not one “arresting a judgment” because it was based on evidence adduced at the trial, notwithstanding the precise — and I suggest, purposeful, delineations of an astute District Judge quite as familiar with history and the background of this statute as are we.
The Solicitor General also has conceded that § 3731 uses the term “arrest of judgment” in its common-law sense. However, he has sought to avoid the inescapable implications of this concession by arguing that the District Court, “in granting appellee’s motion, did not base its action wholly on the allegations of the indictment, but used as a partial predicate for its constitutional rulings the undisputed fact, which appeared from the evidence at trial, that appellee is a non-religious conscientious objector to participation in the Vietnam conflict.”2 The Solicitor General’s argument in favor of jurisdiction seeks to avoid the District Court’s reliance on evidence by pointing out that the District Court’s decision did not purport to be a judgment on the merits, %. e., that the evidence was not sufficient to show that appellee committed the offense charged, and thus was not a directed acquittal. He submits that the District Court used Sisson’s sincere, nonreligious form of conscientious *312objection to a particular war as the basis for its ruling that the indictment was constitutionally infirm as applied to Sisson. Since the evidence of conscientious objection was undisputed at trial3 and is undisputed now, the Solicitor General argues that the use of the facts here was akin to a stipulation of facts by parties in a criminal case, and that this Court has recognized that such a stipulation may be treated by the District Court as supplementing the indictment (like a bill of particulars) . He relies on United States v. Halseth, 342 U. S. 277 (1952), and United States v. Fruehauf, 365 U. S. 146 (1961).4
*313My disagreement with the Court is based upon much more fundamental grounds than those which the Solicitor General would use to avoid the strictures of the common-law concept of an arrest of judgment. In my view the Criminal Appeals Act contemplates that an arrest of judgment is appropriate in other than a closed category of cases defined by legal history. Specifically, there is no reason for the Court today to read into that *314class of cases all of the niceties of what might or might not have been included in the “judgment roll” at common law. We have outgrown those formalisms.
I conclude that evidence adduced at trial can be considered by a district court as the basis for a motion in arrest of judgment when that evidence is used solely for the purpose of testing the constitutionality of the charging statute as applied. I do so because the legislative history surrounding the passage of the Criminal Appeals Act abundantly shows Congress contemplated review by this Court in such a case. The reasons for the Court’s face-of-the-record limitation, in the technical common-law form of an arrest of judgment, have long since disappeared, and the Court’s reliance on a policy disfavoring appeals under the Criminal Appeals Act is misplaced.
The Court’s reasoning pays scant attention to the purpose of the Criminal Appeals Act and to the problem that Congress was attempting to solve in 1907 when the Act was passed. The legislative history of the Criminal Appeals Act reflects the strong desire by a number of Attorneys General of the United States for an appellate remedy in selected criminal cases.5 Such a remedy had been provided in England and in some States, but the lack of such a remedy for the Federal Government had “left all federal criminal legislation at the mercy of single judges in the district and circuit courts. This defect became all the more serious because it became operative just at the beginning of the movement for increasing social control through criminal machinery.” 6 Congress, however, was not stirred to complete its action on the *315proposals until a federal district court rendered its decision in United States v. Armour & Co., 142 F. 808 (D. C. N. D. Ill. 1906), sustaining a motion to dismiss and ending a Sherman Act prosecution in which President Theodore Roosevelt had a great interest.
The House passed, without debate, a bill that gave the United States in all criminal prosecutions “the same right of review by writ of error that is given to the defendant,” provided that the defendant not twice be put in jeopardy for the same offense. 40 Cong. Rec. 5408 (1906). The Senate, however, refused to accept the House bill. Rather, its Judiciary Committee offered as a substitute a more complicated bill which ultimately was refined to become the Criminal Appeals Act. In relevant part, the substitute would have allowed a writ of error by the United States “[f]rom the decision arresting a judgment of conviction for insufficiency of the indictment.” S. Rep. No. 3922, 59th Cong., 1st Sess. (1906). When the substitute came to the floor of the Senate, the floor leader for the bill, Senator Knute Nelson of Minnesota, explained the need for the legislation in constitutional terms: “[SJometimes an indictment is set aside on the ground that the law under which the indictment was found is held to be unconstitutional. The object [of this bill] is to allow the Government to take the case up and get a ruling of the Supreme Court.” 40 Cong. Rec. 8695 (1906) (emphasis added). The bill was then put over in the absence of unanimous consent for consideration. When the bill returned to the floor, questions were raised with respect to the arrest of judgment provision regarding the prohibition against double jeopardy. Unanimous consent to proceed again was withdrawn and the bill was again put over. 40 Cong. Rec. 9033 (1906).
An amended bill was reported out of committee in January of 1907. When this bill reached the floor, a *316spirited three-day debate took place respecting its impact on an accused. Indeed, among the questions discussed was whether a defendant who succeeded on a motion in arrest of judgment could again be prosecuted. See 41 Cong. Rec. 2192-2193 (1907). But almost none of the debate concerned the scope of an “arrest of judgment.” Senator Knox, who had been the Attorney General before going to the Senate, did say that “this legislation is along the line of the law as it is understood in England under the common law.” 41 Cong. Rec. 2751 (1907). However, this statement apparently referred to the right of the Government to appeal, for it was immediately followed by the observation: “In England the Crown always had the right to an appeal in a criminal case. In my own State since its foundation the right has been conceded.” Ibid. The manifest, overriding concern of the Senate was with enacting legislation that would permit appeals as to important legal questions always subject to the bar against double jeopardy,7 and this concern carried over to the arrest of judgment provision.8 Indeed, the major limiting amendment adopted by the Senate restricted the right of review by the Government in criminal cases to constitutional issues and questions of construction of the statute under which the charge was brought. See 41 Cong. Rec. 2819-2820 (1907).
*317Another illustration of what the Senate thought it was doing in describing this category of appeals comes from the emphasis on distinguishing a “motion in arrest” from an “acquittal.” See 41 Cong. Rec. 2748 (1907). From the latter, to be sure, there was to be no appeal — no matter how many errors the trial judge had committed along the way to the acquittal in the form of erroneous rulings or other trial errors. As the majority has noted, an amendment was adopted which required that verdicts in favor of the defendant could not be set aside on appeal. 41 Cong. Rec. 2819 (1907). The text of the amendment as adopted read: “Provided, That if upon appeal or writ of error it shall be found that there was error in the rulings of the court during the trial, a verdict in favor of the defendant shall not be set aside.” Ibid. The proponent of the amendment, Senator Ray-ner, expressed the view that the amendment was directed toward a “verdict of not guilty, whether by the court or the jury . . . .” 41 Cong. Rec. 2747 (1907) (emphasis added). Here, of course, Sisson was not acquitted but was found guilty by the jury. Further, the Court’s use of the Rayner amendment to support a narrow reading of the “arrest of judgment” provision is incongruous in the extreme in light of the fact that the amendment had no substantive effect and was later deleted from the Act. See Mr. Justice White’s opinion, post, at 344 n. 11.
“Trial errors” respecting the fact-finding function— which affect only the particular trial — were distinguished from errors of law that had been separated from the trial on the merits, and that involved constitutional rulings that could affect future attempts of the Government to prosecute under the same statute:
“The defendant gets the benefit of all errors in the trial which are in his favor, and can challenge all errors in the trial which are against him. It is *318certainly not too much when he attacks the trial itself or the law under which it is conducted to give the people the right to a decision of their highest courts upon the validity of statutes made for their protection against crime.” 41 Cong. Rec. 2752 (1907) (remarks of Senator Knox).
“The motion in arrest of judgment can only be made — it is wholly inapplicable to any other condition than that of conviction — to a verdict of guilty. It is interposed after a verdict of guilty and before judgment for an alleged legal reason that will arrest the court in pronouncing judgment upon the verdict.” 41 Cong. Rec. 2753 (1907) (remarks of Senator Patterson).
The Senate passed the bill with the acquired floor amendments on February 13, 1907. 41 Cong. Rec. 2825 (1907). The House insisted on a conference, but the conference committee adopted the Senate version. The resulting conference committee bill was ultimately adopted. 41 Cong. Rec. 3994, 4128 (1907).
Notably, the debates on the Senate bill which formed the basis of the Act demonstrate a total lack of concern with the technical niceties of ancient common-law forms of pleading. And, far from distinguishing cases where a congressional act was invalidated on its face from cases where it was invalidated as applied to a situation that Congress clearly intended to reach, the debates appear to contemplate both cases as appropriate for appeal to this Court — certainly the evil aimed at — and the rationale of the Act is broad enough to encompass both situations. Appeal was to be for the purpose of deciding “constitutional questions,” “questions of law” which, if the district judge’s decision were permitted to stand, could lead to conflict and different treatment under the same *319criminal statutes in different parts of the country, with no opportunity under existing law for resolution in this Court. The Government was to have a chance to “settle the law as to future cases of like character.” 41 Cong. Rec. 2194 (1907) (emphasis added).
It is difficult to imagine a case more closely fitting into this rationale than that now before us. The class of nonreligious conscientious objectors is not likely to be a small one. Indeed under the impetus of this holding it is likely to grow. Yet whether or not a member of that class can constitutionally be punished for refusing to submit to induction now depends on where that person is tried and by whom. That one district judge may entertain a different view of the Constitution than does another is an extraordinary reason for differing results in cases that rationally ought to be decided the same way — and with appellate review available to insure that end. The conclusion that this is not a “motion in arrest,” insulates the judge’s constitutional decision from review anywhere — here or in the Court of Appeals. That, I submit, is precisely the situation Congress thought it was correcting with the Criminal Appeals Act. It is remarkable that the Court finds it so easy to ignore the explicit and meaningful legislative history which refutes its strained reading of the statute and history.
The common-law rule that an arrest of judgment could be based on nothing more than the judgment roll seems to have been required by the existence of the very limited record of that day which did not include the evidence adduced at trial. Evidentiary matters were not before the appellate courts, and it would have been impossible for the arresting court’s “successors [to] know the grounds of their judgment,” Sutton v. Bishop, supra, if the arresting court considered the evidence at trial. This *320Court in this case obviously has no such problem in providing appellate review. The records before us contain complete transcripts of the trial proceedings as a matter of course.
Accordingly, while the District Court admittedly looked to evidence, including demeanor evidence, for its findings that Sisson was “sincere” and was “genuinely and profoundly governed by his conscience,” this use for that purpose should not now bar this Court from considering the District Court’s action as an arrest of judgment. As long as the evidence was used to test the constitutionality of the charging statute as applied to the defendant, and not to test the sufficiency of the proof against the allegations in the indictment, the use of the evidence was consistent with the purposes of an arrest of judgment.
In this case, there has been no finding that Sisson did not commit the acts charged; there has been only a holding by the trial judge that his acts were constitutionally protected — a holding that stands as the sole impediment to imposing a jury verdict of guilty; no verdict of acquittal was ever returned. Even our present Federal Rules of Criminal Procedure make a similar distinction between a “Motion for Judgment of Acquittal,” Rule 29, and an “Arrest of Judgment,” Rule 34. The former is entered “if the evidence is insufficient to sustain a conviction” of the offense charged, while the latter is granted where the indictment “does not charge an offense” at all. Rule 29 allows a judge to reserve his decision on a motion for judgment of acquittal until after the jury has returned a verdict. If he then grants the motion, the defendant stands acquitted, but again only because the evidence has been found insufficient to support the charge. Where the grounds for granting an “acquittal” are based on an independent legal deci*321sion about the interpretation or construction of the statute, the judge’s action will be an “arrest of judgment” even though he labels it an “acquittal.” United States v. Waters, 84 U. S. App. D. C. 127, 175 F. 2d 340 (1948).
I cannot believe that Congress, fully aware that no appeal was available for a directed verdict or judgment n. o. v., contemplated that this form of judicial action should be accorded the same nonappealable status. Moreover, the sophisticated District Judge could have entered a judgment n. o. v. if he wanted to avoid review or if he thought that he was indeed passing on the sufficiency of the evidence to meet the allegations of the indictment. Of course, his views are not controlling, but I am comforted by his appraisal and quite satisfied he knew precisely what he was doing — or thought he did on the assumption that his action was reviewable under well-established principles the Court now ignores.
The Court also inveighs against a “broad” construction of the Act, noting that this Court has denominated an appeal by the Government in a criminal case as an “exceptional right,” and as “something unusual, exceptional, not favored.” Ante, at 291. This is an odd characterization; the right is precisely as “exceptional” or “unusual” as Congress makes it. This Court has no power to define the scope of its own appellate review in this context and a subjective distaste for review at the instance of government has no proper place in adjudication. The tendency to be miserly with our jurisdiction did not prevent our construing the three-judge court acts to include cases where statutes were held unconstitutional as applied, Query v. United States, 316 U. S. 486 (1942); C. Wright, Federal Courts 190 (2d ed., 1970), and it should not carry any more weight in assessing our responsibility to decide the constitutional issues in this *322case,9 the more so when it is a constitutional holding of great moment.
II
The second requirement, that the decision of the District Court must rest upon the “insufficiency of "the indictment,” also presents a difficult question here. The Court emphasizes, wrongly, in my view, that both grounds upon which the District Court’s decision rests are defenses that Sisson successfully asserted. In an ordinary case, an indictment, to be sufficient, need not anticipate affirmative defenses. This, however, is not’ the ordinary case. The indictments ,in cases of this nature typically charge only that the Selective Service registrant
“did unlawfully, knowingly and wilfully fail and neglect and refuse to perform a duty required of him under and in the execution of the Military *323Selective Service Act of 1967 and the rules, regulations and directions duly made pursuant thereto, particularly 32 Code of Federal Regulations 1632.14, in that he did fail and neglect and refuse to comply with an order of his local draft board to submit to induction into the armed forces of the United States; in violation of Title 50, Appendix, United States Code, Section 462.”10
Yet this allegation subsumes in its terse language a myriad of elements that the Government may be called upon to prove if the defense makes an appropriate challenge. Prosecutions for refusing to submit to induction are unusual because they incorporate into the judicial proceeding m,uch that has occurred in the administrative processes of the Selective Service System. All of the courts of appeals have compensated for the administrative proceedings by holding that the Government need not plead and prove many elements that would normally be a part of its case-in-chief. The courts of appeals have devised a presumption of regularity which attaches to the official acts of the local boards that, standing alone, is sufficient to preclude reversal of a conviction when a given element is not raised at trial. See particularly Yates v. United States, 404 F. 2d 462 (C. A. 1st Cir. 1968) (presumption of regularity attaches to the order-of-call requirement). However, if the defendant succeeds in making a prima facie case against the presumption, the Government is put to its proof on the particular element of the offense. See United States v. Baker, 416 F. 2d 202 (C. A. 9th Cir. 1969).
By analogy, the Government is not required to plead and prove that the defendant was properly classified in category I-A as available for induction. Rather, the *324defendant can challenge the classification at trial if he has preserved his claim, and force the Government to prove that there was indeed a “basis in fact” for the classification. Thus, establishing the appropriate classification is actually an element of the Government’s case, but because of the deference given to the administrative process that preceded the criminal proceedings, the Government has been excused from pleading and proving it in the indictment. Since the general allegations in the indictment actually do subsume the element that the District Court held was based on an invalid statute as applied to Sisson, that court’s decision was based on the “insufficiency of the indictment” within the meaning of § 3731.
The Court also appears to assume that an indictment may be “insufficient” because the acts charged cannot constitutionally be made an offense, e. g., where they show the existence of a constitutional privilege that bars conviction. But, the Court concludes that “this indictment . . . does not allege facts that themselves demonstrate the availability of a constitutional privilege.” Ante, at 288.
In my view, the Court’s suggestion is simply the same argument, differently approached, as the argument that a motion in arrest can be based only on facts appearing on the face of the record. In both cases, the single question, as I see it, is whether Congress drew a distinction for purposes of appeal by the Government, between cases in which the district court found the entire statute unconstitutional, and cases .in which the court found the statute unconstitutional as applied.
The view has been expressed that the Criminal Appeals Act is badly drawn and gives rise to a multitude of problems. We can all agree as to the infirmities of the statute but this is hardly an excuse to take liberties with its plain purposes reasonably articulated in its terms. Prior *325urgings addressed to the Congress to correct this situation have gone unheeded. But the Court’s holding today is a powerful argument to spur corrective action by Congress.
Mr. Justice White, with whom The Chief Justice and Mr. Justice Douglas join,dissenting.
I
I agree with The Chief Justice that this case can be appealed by the Government under the “motion in arrest” provision of the Criminal Appeals Act. In contrast to the rather clear remedial purpose of the Act, not a single passage in the legislative history indicates awareness by Congress that the words it was using had the effect of distinguishing cases where a congressional Act was held invalid on its face from cases where it was invalidated as applied to a sub-class within the Act’s intended reach. In both cases, the indictment is “insufficient” to state a valid offense.1 In both cases, any “factual findings” necessary to give the particular defendant the benefit of the constitutional ruling are little more than findings as to the defendant’s standing to raise the constitutional issue — they are not findings as to the sufficiency of the evidence to prove the offense alleged in the indictment.2 Thus, if Judge Wyzanski, without making any findings as to Sisson’s sincerity, had held *326the Selective Service Act unconstitutionally overbroad because it purported to subject to the draft in violation of the Free Exercise Clause sincere, nonreligious objectors, this Court would clearly have jurisdiction and would face the question whether Sisson could raise the claim without showing that he was a member of the allegedly protected class. Cf. Thornhill v. Alabama, 310 U. S. 88 (1940). If such a showing had to be made, as the judge here held it did, the question of standing and the facts relevant to that question are surely distinct from the question of whether the defendant committed the offense, or the question of the validity vel non of the statute.3 Cf. Association of Data Processing Service Organizations v. Camp, 397 U. S. 150 (1970); Barlow v. Collins, 397 U. S. 159 (1970).
II
We asked the parties in this case to consider whether 18 U. S. C. § 3731 confers jurisdiction on the ground that the lower court had sustained “a motion in bar, when the defendant has not been put in jeopardy.” The majority, after a lengthy discussion of the “motion in arrest” provision, condescends to address a few remarks to this question, with the suggestion that it really need not discuss the issue at all, since .it has concluded that Judge Wyzanski’s action amounted to “an acquittal.” As Mr. *327Justice Black’s concurrence .indicates, the lengthy discussion of the “motion in arrest” provision is equally superfluous if indeed it is so clear that Sisson has been “acquitted.” In reality, the bald assertion that Sisson has been “acquitted” simply begs the matter at issue: until one knows what a “motion in bar” is, as well as a “motion in arrest,” and how the granting of such motions differs from granting a judgment of acquittal, one cannot confidently attach any label to Judge Wyzanski’s action.
The only reason the majority gives for concluding that Sisson has been acquitted is based, not on what actually happened, but on what might have happened. Since Judge Wyzanski could have submitted the case to the jury on instructions reflecting his view of the law, and since the jury so instructed could have returned a verdict of “not guilty,” therefore we must pretend that that is what has actually happened. That suggestion is nonsense. One does not determine “what in legal effect [Judge Wyzanski’s decision] actually was,” ante, at 279 n. 7, by asking “what in legal effect the decision might have been.” If that were the key question, then this Court should not have had jurisdiction in United States v. Covington, 395 U. S. 57 (1969) (Harlan, J.). There the trial judge accepted the defendant’s argument that the Fifth Amendment prevented the Marihuana Tax Act from constitutionally being applied to him. Under the majority’s view, that action would amount to an acquittal because the judge might have given the case to the jury under instructions that it should acquit if it found the facts necessary to sustain the defendant’s privilege — e. g., that he was not one of the registered marihuana dealers whose conduct was legal under state law. Indeed, if applied consistently the majority’s theory would mean that there is no case that could be appealed to this Court under the *328“motion in bar” provision of the Criminal Appeals Act. For it will always be true that a judge might have sent the case to the jury under instructions reflecting his view that the motion in bar was good, so that if the jury found the facts relied on in the motion, it should acquit.4
*329The difference between “what might have been” and what actually happened .in this case is large and critical. Where the jury actually “acquits” under an erroneous instruction, a successful appeal leading to reversal and a new trial would raise serious constitutional problems by placing the defendant through the hazards of another trial for the same offense. In this case, however, there is no possibility of subjecting Sisson to another trial, or of overturning a factfinder’s decision that, whatever the law, Sisson should go free. If Judge Wyzanski’s legal theory is incorrect, the jury’s verdict of guilty— with judgment no longer “arrested” — simply remains in effect.
It was precisely this distinction that Senator Knox was referring to in the passage quoted in the majority opinion, ante, at 289: the defendant retains the benefit of any error whatever committed by the court “in the trial”; but the Government gets an appeal “upon ques*330tions of law raised by the defendant to defeat the trial.” The distinction is also reflected in the majority’s quotation from United States v. Ball, ante, at 289-290, where the question of what constitutes an “acquittal” is tied to the question of whether the defendant would be put “twice in jeopardy” by an appeal.
I suspect that the Court’s reluctance to discuss the “motion in bar” provision and to distinguish the granting of such motions from an acquittal stems from the fact that, unlike the “motion in arrest,” there .is no doubt that a “motion in bar” properly sets forth an affirmative defense, which necessarily requires resort to facts not found in the indictment or on the face of the “record.” Thus most of the majority’s argument that this case is not appealable as a “motion in arrest” because “[t]he decision below rests on affirmative defenses,” ante, at 287-288, is simply irrelevant as far as the “motion in bar” is concerned.
In fact, as the majority seems to concede by its reluctance to reject square precedent on the issue, see ante, at 300 n. 53, our cases make clear that the phrase “motion in bar” would include a plea like Sisson’s that the selective service laws are unconstitutional as applied to him. The Court has never adopted the view that a “motion in bar” encompasses only the common-law defenses of autrefois acquit, autrefois convict, and pardon.5 Neither did Congress when it passed the Act. The debates show that the plea in bar was thought to embrace such a variety of defenses as the statute of limitations, e. g., 41 Cong Rec. 2749, and a plea of Fifth Amendment *331immunity, see 41 Cong. Rec. 2753. The most thorough discussion of the “motion in bar” in this Court occurs in the concurring and dissenting opinions in United States v. Mersky, 361 U. S. 431 (1960). Mr. Justice Brennan argued that a motion in bar would encompass every possible affirmative defense that would prevent retrial. Mr. Justice Stewart argued for a narrower interpretation, similar to the concept of a plea in confession and avoidance, i. e., a plea that “did not contest the facts alleged in the declaration, but relied on new matter which would deprive those facts of their ordinary legal effect.” Id., at 457.
Even under the narrower interpretation of Mr. Justice Stewart, Sisson’s plea qualifies as a “motion in bar.” For as the majority’s opinion makes clear, the crux of the case against Sisson was simply whether or not he had wilfully refused to submit to induction; the question of his sincerity was “new matter” relied on to deprive the fact of his wilfull refusal of its ordinary legal effect. See majority opinion, ante, at 276; United States v. Blue, 384 U. S. 251, 254 (1966) (Harlan, J.). Just as our cases have permitted the “motion in bar” to embrace limitations pleas, see, e. g., United States v. Goldman, 277 U. S. 229 (1928), and pleas of constitutional privilege, see United States v. Murdock, 284 U. S. 141 (1931), so too they permit the “motion in bar” to reach cases of this sort, attacking the validity of the statute as applied to the defendant. See United States v. Covington, 395 U. S. 57 (1969) (Harlan, J.); United States v. Blue, supra, at 254 (Harlan, J.).
Procedurally, the fact that the plea is sustained only after a jury verdict of conviction — and the fact that the judge labeled his action as something other than a “motion in bar” — does not prevent finding a “motion in bar.” United States v. Zisblatt, 172 F. 2d 740, 742 (C. A. 2d Cir.), appeal dismissed, 336 U. S. 934 (1949). Even *332the legislative history recognizes that such pleas could be sustained after the trial had begun. 41 Cong. Rec. 2749 (remarks of Senator Rayner). Nor is there any doubt — unlike the case of a motion in arrest— that a proper motion in bar results even though factual issues relevant to the motion have to be tried. See 41 Cong. Rec. 2194 (remarks of Senator Whyte); id., at 2753 (remarks of Senator Patterson); United States v. Zisblatt, supra. Indeed, Mb. Justice Harlan recently referred to the possibility of trying facts to the judge that were relevant to the motion in bar, and separate from the general issue. See United States v. Covington, supra, at 60. In his words, “[a] defense is thus 'capable of determination’ [without trial of the general issue] if trial of the facts surrounding the commission of the alleged offense would be of no assistance in determining the validity of the defense.” Ibid. That description fits this case precisely since, as already noted, the majority itself takes careful pains to point out that the “general issue” — whether Sisson wilfully refused induction — was at all times separate from the issue raised by Sisson’s constitutional claim.6
*333This case, then, is indistinguishable as far as the “motion in bar” provision is concerned from United States v. Zisblatt, supra, which the majority cites with approval throughout its opinion. There, as here, the de*334fendant moved for dismissal of the indictment on the basis of an affirmative defense — in that case the statute of limitations. There, as here, the judge reserved ruling on the motion until after the jury had returned a verdict of guilty. There, as here, the judge then granted the defendant’s motion, relying on matters “outside the record.” The Government appealed to the Court of Appeals, where the question became whether or not the appeal should have been taken directly to this Court under the Criminal Appeals Act. Judge Learned Hand, in deciding that the trial court’s action amounted to sustaining a motion in bar, made short shrift of the argument that the case was indistinguishable from the case of a directed verdict of acquittal.
“Had the trial judge directed a verdict, so that it would have been necessary upon reversal to subject the defendant to trial before a second jury, that' would be ‘double jeopardy,’ but, although the Constitution gives an accused person the benefit of any mistakes in his favor of the first jury he encounters, whether it has passed upon his guilt or not, it does not extend that privilege to mistakes in his favor by judges. Indeed, were the opposite true, all appeals from decisions in arrest of judgment would be constitutionally futile because no judgment of conviction could be entered when they were reversed.” 172 F. 2d, at 743.
*335The sole question, then, in this case as in Zisblatt, is whether the defendant has been “put in jeopardy” as that phrase is used in the Criminal Appeals Act. That question in turn centers on whether the phrase is to be read literally, in which case a defendant would be in jeopardy as soon as a jury was .impaneled, or whether the phrase is to mean “constitutional” or “legal” jeopardy, in the sense that even if the Government were to succeed on appeal, it would be unable to take advantage of its success in new proceedings against the defendant. Although the Government has chosen to read the statute in the former, literal sense, this Court has never resolved the issue. Judge Learned Hand thought there was a “more than plausible argument” for the latter, “legal jeopardy” view, but the Government dismissed its appeal to this Court before the question could be decided. United States v. Zisblatt, supra, at 742.
The legislative history of the 1907 Act unmistakably shows that Congress meant to allow the Government an appeal from a decision sustaining a motion in bar .in every case except where the defendant was entitled to the protection of the constitutional guarantee against double jeopardy. I find the debates so convincing on that point that I am at a loss to understand why the Government has so readily conceded the issue unless it be to maintain the appearance of consistency, and to protect its interests ,in securing new criminal appeals legislation before Congress.7 Certainly that concession *336does not bind this Court;8 even more certainly it is no excuse for the majority’s failure to conduct its own examination of the relevant debates.
Out of three full days of debate in the Senate, covering more than 30 pages of the Congressional Record, see 41 Cong. Rec. 2190-2197, 2744-2763, 2818-2825, the majority finds a total of three passages to cite in a footnote as support for its interpretation, see ante, at 304-305, n. 57. In each case, the statements placed in context prove just the opposite of the majority’s conclusion. The first reference, to a passage before debate even began, 40 Cong. Rec. 9033, is to Senator Spooner’s *337question whether the bill applied only to questions arising before the impaneling of the jury. As the majority acknowledges, Senator Nelson immediately corrected Senator Spooner, pointing out that the key question was “jeopardy,” not the impaneling of the jury. The entire brief exchange occurred before the bill was debated, further consideration having immediately been postponed by the objection of other Senators to pursuing the matter at that time. See F. Frankfurter & J. Landis, The Business of the Supreme Court 117 n. 68 (1928). When debate was resumed at the next session of Congress, Senator Spooner unmistakably indicated that jeopardy was being used in the constitutional, legal sense, in direct opposition to the views the majority now tries to ascribe to him:
“The question is whether it subjects a man under any aspect of it to the danger of double jeopardy.
I am content to leave it, under the bill, if it shall become a law, to the Supreme Court of the United States. It is their function to determine what is jeopardy. It is their function to protect the citizens of the United States against any invasion of the constitutional guaranty as to double jeopardy. I think we can rely upon the court to protect as far as the Constitution requires it all defendants . . . .” 41 Cong. Rec. 2762-2763 (remarks of Sen. Spooner).
In the second passage, 41 Cong. Rec. 2191, the majority quotes Senator Nelson for the proposition that-no appeal would lie where a jury had been impaneled. The actual quotation is that no appeal would lie “where a jury has been impaneled and where the defendant has been tried . . . 41 Cong. Rec. 2191 (emphasis added). In context, it is clear that Senator Nelson is venturing an interpretation of “jeopardy” in the legal sense. The whole dispute at this point in the debate is *338primarily between Senator Rayner who opposed the bill, and Senators Bacon and Nelson, who supported the bill. The proponents were at pains to show that a person could not be “put twice in jeopardy” under any of the provisions of the bill, 41 Cong. Rec. 2193 (remarks of Sen. McCumber; remarks of Sen. Bacon). Senator Rayner was intent on showing how difficult it was for anyone to give an adequate definition of just what “legal jeopardy” is — he supported a return to the House suggestion, which would have given the defendant the benefit of his favorable decision whether or not he had been “put in jeopardy.” But not a single passage can be cited to show that either side had the slightest inkling that “jeopardy” was being used in any but its technical, legal sense as interpreted by this Court and state courts. That was the whole point of Senator Rayner’s objection: “jeopardy” was too vague a term, because nobody could decide exactly when constitutional jeopardy had attached. How the majority can rely on Senator Nelson for the conclusion that “jeopardy” means “literal” jeopardy is particularly difficult to understand, given the Senator’s own unambiguous explanation that as author of the bill, what he meant was “constitutional” jeopardy:
“I aimed to put the bill in such a form that it would cover exactly those cases in which the defendant had not been put in jeopardy under the Constitution of the United States. I believe that the bill is limited strictly to that matter.” 41 Cong. Rec. 2757 (emphasis added).
Senator Bacon during this same exchange noted that the “jeopardy” provisions had been put in “out of abundance of caution,” 41 Cong. Rec. 2191. He proceeded to explain by his remarks that he meant precisely what the majority today declares he could not have meant— namely, that Congress was simply emphasizing that it was not attempting to subject a defendant to constitu*339tional double jeopardy by a successful government appeal. In fact, when one of the Senators asked whether “jeopardy” was to be taken in a possibly literal sense, Senator Bacon hastened to reply:
“That is not what the law means by being put in jeopardy at all. The words ‘being in jeopardy’ are entirely a technical phrase, which does not relate to the fact that a man is in danger as soon as an indictment is preferred against him.” 41 Cong. Rec. 2191 (emphasis added).
It is hardly “superfluous” for Congress to guard against a construction of an Act that might render the Act unconstitutional. And the fact that the majority would have written the statute differently to avoid what it calls a “superfluous” reading, is no excuse for ignoring the explicit indication that that is exactly the reading that Congress meant the phrase to bear.9
*340The majority’s final passage refers to a remark by Senator Patterson suggesting that a motion in arrest was the only provision under the bill that could be raised after a trial had begun. As the majority concedes, one need only read on a bit further to discover that Senator Patterson immediately retracted that suggestion when challenged, insisting that a “motion in bar” could also be granted after trial had begun and that an appeal would lie as long as no problem of “constitutional jeopardy” was presented. Indeed, Senator Patterson argued vigorously that there would have been jurisdiction in the Beef Trust Case — a case in which the motion in bar was not only granted after trial had begun, but was also reflected in the judge’s instructions to the jury. Senator Patterson’s remarks are particularly interesting because, apart from whether he is right on the question of constitutional jeopardy, he makes clear the distinction between a motion in bar and an acquittal which the majority blithely ignores:
“A special plea in bar ... is a plea that does not relate to the guilt or innocence of the defendant in the sense as to whether he did or not commit the act for which he was indicted. A special plea in bar is that which is set up as a special defense notwithstanding the defendant may be guilty of the offenses with which he is charged; it is for some outside matter; yet it may have been connected with the case. The special plea in bar that was filed by the indicted Chicago packers is a very good illustration of that. Their plea in bar set forth the fact of their having been induced or led, whatever it may have been, to make communications to the *341law officers of the Government with reference to their business that gave the district attorney information which enabled him to bring about the indictments and to help in their prosecution. That had no reference to the guilt or innocence of the accused. It was a pleading of fact that was independent of the crime for which those packers had been indicted.
“Therefore, Mr. President, there could be no jeopardy in a case of that kind where there was a decision upon the special plea in bar, because it is not under a plea of guilty or not guilty that the insufficiency of a special plea in bar is determined; it is non obstante whether the defendant is guilty or not guilty.” 41 Cong. Rec. 2753.
It is obvious from these remarks that Senator Patterson did not think that the question of “jeopardy” under the motion-in-bar provision was simply a question of whether the jury had been impaneled.10
This interpretation is made doubly clear by the remarks of Senator Nelson, the leading proponent of the bill. He also addressed himself to the Beef Trust Case and, unlike Senator Patterson, he suggested that that case could not have been appealed under the Act. But the reason he gave for that conclusion was not that the jury had been impaneled, but that the jury had been impaneled and had returned a verdict of not guilty under the judge’s instructions, thus placing the defendants in “legal jeopardy”:
“In that case a jury was impaneled, and the question whether the defendants were entitled to im*342munity under the immunity law because they had furnished Mr. Garfield and the officials of his Bureau information was submitted to the jury, and the jury under instructions of the court found for the defendants. In that case the defendants under the Constitution had been in jeopardy and in that beef-trust case no appeal could lie.” 41 Cong. Rec. 2757 (emphasis added).
See 41 Cong. Rec. 2750 (remarks of Senator Nelson).
Senator Nelson was thus talking about the majority’s “might have been case” — the case where the judge gives the motion in bar issue to the jury under his novel view of the law, so that a successful government appeal would require retrying the defendant. In the immediately following passage, Senator Nelson makes clear that if the facts pleaded in the special issue are not submitted to the jury, but tried to the judge, there would be no bar to taking an appeal. But in both cases, Senator Nelson, like Senator Patterson, is quite obviously giving his views as to what “constitutional jeopardy” means.
While the debates are replete with other indications that Congress’ concern was with “double jeopardy,” not “literal jeopardy,” the clearest such indication occurs in this very exchange between Senator Rayner, who announced his opposition to the bill in any form, 41 Cong. Rec. 2745, and Senators Spooner, Patterson, and Nelson — proponents of the bill. The exchange occupied most of the second day of the three days of debate in the Senate and centered almost entirely on Senator Rayner’s proposed amendment. The example that Senator Ray-ner used to illustrate the difficulties he saw in the bill was a hypothetical case in which a plea in bar — a limitations plea — -was sustained halfway through the trial. See 41 Cong. Rec. 2749. In that case, Senator Rayner argued, no one could say with certainty whether the de*343fendant had been put in jeopardy, and hence whether he could constitutionally be retried if the Government’s appeal were successful. Senator Rayner did not want to leave the defendant’s fate to depend on “this howling wilderness of confusion upon the subject of what constitutes legal jeopardy.” 41 Cong. Rec. 2750 (emphasis added). His amendment would thus have guaranteed that a defendant could never be retried — whatever the ultimate resolution of the “legal jeopardy” question. Those who opposed the amendment argued that if it had any substantive effect, it would make the question on any appeal “moot”; that it was enough to make sure that the Government was not allowed to secure a reversal and proceed again where the result would place the defendant in “double jeopardy”; and that the bill would leave to the Supreme Court the question of what is “jeopardy,” and hence protection “against any invasion of the constitutional guaranty as to double jeopardy.” 41 Cong. Rec. 2761-2763; see also 41 Cong. Rec. 2193. But it is clear — indeed it was again crucial to Senator Rayner’s argument — that the Senators assumed that “jeopardy” was being used in the legal sense:
“The question is whether it subjects a man under any aspect of it to the danger of double jeopardy.
“The Senator [Rayner] says he does not care whether it is double jeopardy or not. Even if a man under the Constitution may properly and lawfully be put on trial again, if he has been tried once, even though it were a mistrial, if he had been for a moment in jeopardy, he insists that we shall provide by law, no matter what the case may be, that he shall not be tried again; that he shall go acquit.
“The matter has been thoroughly argued. I am content to leave it, under the bill, if it shall be*344come a law, to the Supreme Court of the United States. It is their function to determine what is jeopardy. It is their function to protect the citizens of the United States against any invasion of the constitutional guaranty as to double jeopardy. I think we can rely upon the court to protect as far as the Constitution requires it all defendants, without supplementing the Constitution by the Senator's amendment to this bill.” 41 Cong. Rec. 2762-2763 (remarks of Senator Spooner).11
Senator Rayner’s hypothetical example of a plea in bar sustained after trial had begun — an example accepted without question by Senators Patterson, Nelson, and *345Spooner, and every other Senator participating in the debate — completely undercuts the majority’s assertion that Congress thought there could be no appeal once the jury had been impaneled. Indeed, in the face of the arguments over the meaning of “jeopardy” and Senator Rayner’s vigorous attack on the vagueness of that term, it is nothing short of incredible for the majority to suggest that Congress left that language in the Act, intending it to be interpreted as providing “'a clear, easily administered test,” ante, at 307. If Congress had intended the majority’s interpretation it would have been both simple and logical to explicitly limit appeals to cases “where the jury has not yet been impaneled,” thus avoiding the possibility of confusion which had been the very topic of discussion for three full days of debate.
The plain fact of the matter is that the majority’s post hoc rationalization of the Act simply was not that of Congress. While the debates show considerable disagreement about the meaning of “jeopardy” in the legal sense, there is not the slightest suggestion anywhere in the legislative history that “jeopardy” is being used in any other sense. Even where references occur to the impaneling of the jury as the moment when jeopardy attaches, it is clear that jeopardy is still being used in its legal sense — after all, as the majority itself notes, ante, at 305, the impaneling of the jury does in fact often become the constitutionally relevant point in determining that “legal jeopardy” has attached to prevent a reprosecution. But the one point on which there was unanimous agreement — even from Senator Rayner, see, e. g., 41 Cong. Rec. 2748 — about the meaning of “jeopardy,” was that where a convicted defendant on his own motion had secured the arrest of a jury’s verdict of guilty, he had not been placed in “jeopardy.” “[T]he defendant could not complain, either if the judgment of the court shall be entered upon the verdict or a new trial *346shall be ordered, because it is giving to the defendant a new opportunity to go acquit when, under the trial that was had, he had been convicted.” 41 Cong. Rec. 2753.
For this Court to hold that Sisson has been placed in jeopardy under the motion-in-bar provisions, thus defeating jurisdiction, the Court must be prepared to hold that a successful appeal by the Government, resulting in an order that judgment be entered on the verdict, would violate Sisson’s double jeopardy protection. Judge Learned Hand refused even to consider such a suggestion in Zisblatt: “So long as the verdict of guilty remains as a datum, the correction of errors of law in attaching the proper legal consequences to it [does] not trench upon the constitutional prohibition.” 172 F. 2d, at 743.
Ill
I find extremely peculiar the path that the Court follows in reaching its conclusion that we cannot hear this case. The “motion in arrest” provision is confined to its early common-law sense, although there is absolutely no indication that Congress was using the phrase in that sense, and we have never similarly limited the “motion in bar” provision to its common-law scope. The alleged trouble with the “motion in arrest” is not any problem of jeopardy, but the fact that Judge Wyzanski relied on facts outside the face of the “record.” Conversely, the trouble with the “motion in bar” provision is not the use of outside facts, but solely the fear that Sisson was “put in jeopardy.” If this were a motion in arrest, there would be no “jeopardy” problem; and if this were a motion in bar, resort to outside facts would pose no problem. The apparent inconsistency and the refusal to hear the case appear to be due to a dogged determination to fit Judge Wyzanski’s action into one “common-law pigeonhole,” United States v. Mersky, 361 U. S. 431, 442 (Brennan, J., concurring), or the other *347while paying scant attention to the reason for trying to make the fit in the first place, with the result that Judge Wyzanski’s action is to be given the no less distorting label of “acquittal.”
The question in this case should simply be whether or not a judge who upholds a claim of constitutional privilege, thereby declaring the statute unconstitutional as applied, has entered a judgment that Congress intended this Court to be able to review. Surely in a statute as unclear and ambiguous as the majority says this unhappy Act is, the “words” of the statute are only the first place to start the task of interpretation. The primary guide to interpretation should be the statute’s purpose, as indicated by the evil that prompted it, and by the legislative history.
The Act was passed to remedy the situation that gave a single district judge the power to defeat any criminal prosecution instituted by the Government, and to annul as unconstitutional, attempts by Congress to reach a defendant’s specified conduct through the use of the criminal machinery. Over and over, this theme is repeated in the debates on the bill, dominating every other topic of discussion except the concern for safeguarding the defendant’s privilege against double jeopardy. As The Chief Justice’s opinion details, it is difficult to imagine a case more closely fitting the type of case in which Congress intended to allow an appeal than the instant one.
The majority suggests that we must remember that the Act was “a compromise,” and that Congress was very concerned about not unduly encroaching on the rights of the defendant. But the “compromise” between the House and the Senate was only over the areas in which to allow appeal — there was complete accord that constitutional cases of this sort constituted one of those areas; they were indeed the Act’s raison d’etre. Simi*348larly while Congress was concerned to protect the defendant’s rights, it had no doubt that those rights were not invaded where a defendant had been found guilty, and the Government appealed the judge’s decision that for legal reasons the verdict could not stand. The majority, in short, pays lip service to the policies of the Act without ever applying those policies to the question presented in the case before it. Judge Wyzanski, anxious to do his duty as he saw it, and yet aware that ultimate resolution of the constitutional issue properly belongs in this Court, had two means of passing on the issue while still protecting Sisson’s rights: he could have granted Sisson’s motion after a pretrial hearing, see United States v. Covington, 395 U. S. 57, 60; Fed. Rules Crim. Proc. 12 (b)(1), 12 (b)(4), or he could, as here, grant the motion only after the jury’s verdict of guilty forced him to reach the constitutional question. In either case, none of the interests reflected in the jeopardy provisions of the Constitution — protecting defendants from repeated and harassing trials for the same offense — is in any way endangered. In fact, Sisson’s interests if anything are less in jeopardy in the second case than the first where the Government’s appeal would force a long delay in beginning the trial itself.
The conclusion that Congress intended judgments of this kind to be reviewed seems to me so clear, that I suspect the majority’s neglect of this aspect of the statute amounts to a tacit admission that policy and purpose point overwhelmingly toward finding jurisdiction. If that- is the case, then to hang Congress on the technical meaning of the obscure legal terms it happened to use is not only inappropriate, but is strangely out of line with decisions that leap over the plain meaning of words in other contexts to reach conclusions claimed to be consistent with an Act’s broader purposes. See Welsh v. United States, 398 U. S. 333 (1970); Boys *349Markets, Inc. v. Retail Clerks Union, 398 U. S. 235 (1970); Toussie v. United States, 397 U. S. 112 (1970); United States v. Seeger, 380 U. S. 163 (1965). Compared to some of these examples of “statutory construction,” it is child’s play to conclude that Congress did not really mean to limit “motion in arrest” to its old common-law meaning, or that at least if it did, it thought decisions such as Judge Wyzanski’s would have been appealable under some other provision, such as the “motion in bar” as long as there was no danger of encroaching on the defendant’s jeopardy interests.
Admittedly, the issues raised by Sisson are difficult and far-reaching ones, but they should be faced and decided. It is, to be sure, much more comfortable to be able to control the decision whether or not to hear a difficult issue by the use of our discretion to grant certiorari. But that is no excuse for ignoring Congress’ clear intent that the Court was to have no choice in deciding whether to hear the issue in a case such as this. The fear expressed in the prevailing opinion that if we accept jurisdiction we shall be “cast adrift” to flounder helplessly, see ante, at 299, has a flavor of nothing so much as the long-discarded philosophy that inspired the old forms of action and that led to the solemn admonition in 1725 that “[w]e must keep up the boundaries of actions, otherwise we shall introduce the utmost confusion.” Reynolds v. Clarke, 93 Eng. Rep. 747, 748 (K. B. 1725). I cannot agree. I would find jurisdiction.
United States v. Lias, 173 F. 2d 685 (C. A. 4th Cir. 1949), supports the view that the standards are the same for Rule 34 and § 3731.
Rule 34 provides: “The court on motion of a defendant shall arrest judgment if the indictment or information does not charge an offense or if the court was without jurisdiction of the offense charged. The motion in arrest of judgment shall be made within 7 days after verdict or finding of guilty,, or after plea of guilty or nolo contendere, or within such further time as the court may fix during the 7-day period.”
Brief 30.
As the Court’s opinion indicates, see ante, at 27-4-276, the evidence of conscientious objection that was admitted at trial was subject to cross-examination and was discussed during the closing arguments, but solely in the context of Sisson’s “wilfulness” in refusing induction, not respecting whether Sisson was or was not in fact a sincere conscientious objector.
Both the Halseth and Fruehauf cases involved dismissals of indictments before trial. In Halseth the parties had entered into a stipulation for purposes of a motion to dismiss. The indictment charged in the words of the statute an unlawful use of the mails to deliver “a lottery or scheme.” It was stipulated that the particular lottery involved would come into existence only if the addressee put the paraphernalia into operation. The District Court granted a motion to dismiss on the ground that the statute did not apply to lotteries such as defendant’s that were not yet in existence. This Court affirmed, necessarily relying on the particular facts about the particular mailing under attack. See 342 U. S., at 280-281. In United States v. Fruehauf, 365 U. S. 146 (1961), the indictment charged the appellant, again in the words of the statute, with unlawfully delivering money to a union representative. The District Court ruled that a trial memorandum filed by the Government constituted a judicial admission that a transaction at issue was a loan and concluded that the statute did not cover a loan. The Government appealed that construction of the statute. The Court refused to consider that the “admission” had clearly foreclosed the Government from proving at trial that the loan was a sham or otherwise constituted a transfer of something of *313value apart from an ordinary loan, thus violating the statute. Accordingly, it refused to pass on the merits of the appeal and remanded the case for a trial on the existing indictment.
Halseth and Fruehauf are inconclusive authorities on the issue of whether a stipulation can supplement an indictment and generate a basis for review under § 3731, While the majority recognizes that the issue has not been resolved, and although it purports not to resolve it here, it does rely on United States v. Norris, 281 U. S. 619 (1930), and a policy of construing the Criminal Appeals Act narrowly to express doubt that the Solicitor General’s argument should be accepted.
Norris, however, is not a persuasive precedent. There the defendant was permitted to enter a plea of nolo contendere to the charge contained in the indictment. When he appeared for sentencing, a stipulation of facts was filed, and he then submitted a motion for arrest of judgment which relied on the stipulation. The District Court denied the motion but the Court of Appeals reversed, concluding that the indictment was insufficient in light of the stipulation. This Court in turn reversed the Court of Appeals, holding that after pleading guilty, a defendant may not then stipulate facts to test the constitutionality of his conviction. There was no suggestion that an appeal would not lie where a statute was held unconstitutional as applied to stipulated facts. Indeed, the Court’s opinion seems at one point to suggest that if the defendant had withdrawn his plea, and then questioned the constitutionality of his conviction on stipulated facts, the question would have been open to consideration. 281 U. S., at 623.
Further, the majority’s ultimate conclusions about the Act necessarily lead it into uncomfortable distinctions. For if the Government or the parties want a constitutional ruling about the applicability of a statute to a particular set of facts, it is only necessary to set out those facts as a part of the indictment or information.
See Kurland, The Mersky Case and the Criminal Appeals Act: A Suggestion for Amendment of the Statute, 28 U. Chi. L. Rev. 419, 446-449 (1961).
F. Frankfurter & J. Landis, The Business of the Supreme Court 114 (1928).
“The Government takes the risks of all the mistakes of its prosecuting officers and of the trial judge in the trial, and it is only proposed to give it an appeal upon questions of law raised by the defendant to defeat the trial and if it defeats the trial.” 41 Cong. Rec. 2752 (1907) (remarks of Senator Knox).
“[A motion in arrest of judgment] is a case in which the defendant has been tried, in which he has been found guilty on the merits of the case, and by reason of some technicality, if I may use the term in its broad sense, the hand of the court is arrested from imposing the penalty upon him.” 41 Cong. Rec. 2753 (1907) (remarks of Senator Patterson).
The one case in which this Court has even tangentially considered whether evidence adduced at trial can ever be considered as the basis of a motion in arrest of judgment was United States v. Green, 350 U. S. 415 (1956). There the majority of the Court was impelled to explain the basis for its decision by explicitly pointing out that “the record does not contain the evidence upon which the [district] court acted. . . . We rule only on the allegations of the indictment . . , 350 U. S., at 421. Mr. Justice Douglas, with whom Chief Justice Warren and Mr. Justice Black joined, dissented on the ground that the District Court’s “order granting the motions in arrest of judgment rested at least in part upon the insufficiency of the evidence to support the conviction.” Ibid. But neither the position adopted by the majority nor that taken by the dissenters in Green is remotely dispositive of the present case. Here, in contradistinction to the dissenters’ view of the circumstances in Green, evidence adduced at trial was used by the District Court solely for the purpose of testing the constitutionality of a statute as applied; the District Court’s opinion concedes the sufficiency of the evidence to sustain the verdict if the constitutional views expressed in the opinion are not sustained.
App. 6.
Failure to set out the elements of a valid offense against the named defendant is the only way an indictment could ever be “insufficient” because of the uneonstitutionality (as opposed to the construction) of the underlying statute.
The majority, as The Chief Justice’s opinion makes clear and as I discuss in more detail later, infra, at 331-332 and n. 6, 332-334, repeatedly ignores this difference between the facts necessary to secure relief for Sisson on his constitutional claim, and the facts relevant to the offense of wilfully refusing induction.
The majority seems to recognize that it would have difficulty justifying a refusal to hear an appeal challenging Judge Wyzanski’s ruling on the Establishment Clause, simply because findings had to be made as to the defendant’s standing to raise the issue. See ante, at 284 n. 16. But there is no real difference in. this respect between Judge Wyzanski’s free exercise and establishment rulings: both— as the majority concedes, ibid. — require factual determinations that Sisson belongs to the class that is entitled to raise the constitutional claim that is being asserted. If the ruling on the first is “an acquittal,” so is the ruling on the second, since the judge might have sent the establishment issue to the jury too. See infra, at 327-328.
Consistently applied, the majority’s theory would make no criminal case appealable to this Court. For even where a judge dismisses an indictment or grants a motion in arrest because of defects “on the face of the record,” it is always true that he might have sent the case to the jury, instructing it to acquit if it found the facts alleged in the indictment, thus insulating the case from review because of the intervening jury acquittal.
The majority’s protest that its conclusion does not rest on “what might have happened,” ante, at 290 n. 19, simply serves to highlight the ipse dixit nature of its opinion. For the plain fact is that no other reason is ever given to explain why Judge Wyzanski’s action amounted to a post-Verdict directed acquittal. The question in this case is whether an affirmative defense, relying on facts developed at trial and sustained by the trial judge after a jury verdict of guilty, can amount to an appealable “motion in bar.” It is no answer to this question simply to repeat that this is a case in which Judge Wyzanski after a verdict of guilty sustained Sisson’s defense on facts developed at the trial — a clearer case of question-begging can hardly be imagined. Such a simple restatement only poses the question that is to be decided: does such action amount to a nonappealable “acquittal” and, if so, why?
One answer to this question is suggested by the majority in its citation to United States v. Ball, ante, at 289-290. An acquittal is the type of judgment that cannot be reviewed without putting the defendant twice in. jeopardy for the same offense in violation of the Constitution. Indeed, the legislative history shows that Congress was well aware of the Ball decision, and strongly suggests that Congress thought that nonappealable “acquittals” were only those in which review was incompatible with the double jeopardy provisions of the Fifth Amendment. See, e. g., 41 Cong. Rec. 2193. But despite the citation, I cannot believe that the majority really means to suggest that Congress could not constitutionally authorize an appeal in a case precisely parallel to this one in accordance with currently sought legislation. That would indeed be throwing the *329baby out with the bathwater in order to declare this case an “acquittal” and thus avoid being forced to reach the merits now.
What other reason is there for deciding that this is a case of “acquittal” ? One obvious suggestion is that the question of whether a judge’s action amounts to an “acquittal” admits of no single answer, but depends on the reasons for making the inquiry in the first place. Here the inquiry is whether Congress meant to allow an appeal where a statute had been held invalid as applied to a class within its reach and where the defendant’s constitutional jeopardy interests are in no way threatened by the appeal. The majority’s absolute refusal to discuss or respond to the legislative history on this question, set out below, see infra, at 335-346, indicates that this approach would also lead to the conclusion that Judge Wyzanski granted an appealable “motion in bar” rather than an “acquittal.”
The only other noncircular answer that I can find in the majority’s opinion is that this is an acquittal because the judge “might have” sent the case to the jury under his novel instructions, resulting in a verdict of not guilty,, from which an appeal would indeed jeopardize the defendant’s constitutional interests. That answer, as the majority’s discomfiture indicates, is not a very good one.
One will search the majority’s opinion in vain for an explanation as to why “motion in arrest” must be pinned to its common-law meaning, while “motion in bar” — which the majority also concedes had a unique meaning at common law, see ante, at 300 n. 53— has never been so confined. See United States v. Covington, 395 U. S. 57 (1969) (Harlan, J.); United States v. Blue, 384 U. S. 251 (1966) (Harlan, J.).
The majority concedes that the judge's instructions to the jury excluded the question of Sisson’s sincerity from the question of Sisson’s guilt under the Act. See ante, at 276. Indeed, Sisson’s sincerity could not possibly bear on whether Sisson had wilfully refused induction: since Sisson did not seek a 1-0 classification, he could not even argue his “sincerity” to show “no basis in fact” for his I-A classification. Moreover, as the majority again points out, ante, at 274 n. 2, even Sisson recognized that his “selective” objection to war foreclosed him from obtaining C. 0. status under the Act. Sisson’s sincerity was thus relevant only to his constitutional defense and was as distinct from the issue on the merits as would have been a claim that the prosecution was time barred. In that sense, the factual questions relevant to Sisson’s motion were not part of “the general issue,” I do not read The Chief Justice’s opinion, which discusses Sisson’s defense in a wholly different context, as suggesting anything different. The majority’s suggestion, ante, at 299, *333that a defense of privilege in a speech case may involve facts inextricably intertwined with the general issue, and the majority’s reference to United States v. Fargas, ante, at 301, are perfect examples of repeated refusal to come to grips with the facts of this particular case where the issues were not and could not have been intertwined. Whether Sisson might have demanded a jury trial on the facts relevant to his motion is also a question not presented here, anymore than it was in United States v. Covington, 395 U. S. 57 (1969) (Hareah, J.).
The legislative history makes clear that trying facts that go to the plea, as opposed to facts that go to the “general issue” in the sense just described (whether the defendant committed the act) results in an appealable motion in bar as long as the defendant has not been “put in jeopardy.” Compare 41 Cong. Rec. 2750 (remarks of Senator Nelson), with id., at 2753 (remarks of Senator Patterson). See text, infra, at 340-341. The reason for the distinction appears to be the wholly sensible one of not permitting appeals that might involve overturning the findings of the trier of fact— whether it be judge or jury. Nobody suggests in this case that Judge Wyzanski’s findings as to Sisson’s sincerity are reviewable; the only question is whether those findings are legally relevant. While I can sympathize with the majority’s concern to distinguish Covington, I do not see the relevance of the purported distinction, see ante, at 302-303, n. 56. There, as here, the trial judge explicitly refused to declare the relevant Act unconstitutional on its face and necessarily rested his action on factual findings concerning the particular defendant, see 282 F. Supp. 886, 889-890. In fact, under the majority’s reasoning, it would have been even easier to argue in Covington that the facts needed to prove the constitutional defense were part of the “general issue,,” since proof at a trial on the merits would necessarily have involved developing such things as defendant’s status as a marihuana dealer. The majority suggests that there the Government conceded the relevant facts, whereas here they were contested. While that suggestion is itself highly dubious, see The Chief Justice’s opinion, ante, at 312, until the majority explains how that distinction is at all rele*334vant, reiterating the distinction again only begs the issue posed by this case. See n. 5, supra. For whether the issue was conceded or contested it remains true under the majority’s analysis that Cov-ington cannot be distinguished from a directed acquittal “entered on the ground that the Government did not present evidence sufficient to prove that [Covington] was [not faced with a substantial possibility of incrimination].” Majority opinion, ante, at 299.
See majority opinion, ante, at 306-307, n. 61. Of course, the legislation that the Government sought shortly after the Act was passed— requiring a defendant to raise his defenses before trial — does not necessarily mean that the then-Attorney General interpreted “jeopardy” to mean literal jeopardy. The legislation would have been equally needed to prevent defendants from waiting until “constitutional jeopardy” had attached,, before securing relief on a motion *336in bar. Indeed, it is because it was thought that “constitutional jeopardy” had attached in the Beef Trust Case (United States v. Armour & Co.), 142 F. 808 (D. C. N. D. Ill. 1906) that no appeal was thought to lie. See infra, at 341-342. Since the Beef Trust Case was the motivating force behind the Criminal Appeals Act, it would be natural for the Attorney General to seek legislation that would force a similar defendant to raise and get a decision, on his plea in bar before trial began, thus avoiding any possibility that th§ defendant would escape by being placed in legal jeopardy.
To argue that the statute was enacted for the benefit of the Department of Justice hardly justifies relying on the Government’s concession as additional authority for the proper interpretation of the Act. The relationship of the Department of Justice to the Criminal Appeals Act is not that of an agency to the statute creating the agency and charging it with enforcement of the Act’s provisions. Indeed when it comes to the question of this Court’s jurisdiction, no institution has special authority for exploring and determining that question other than this Court. The Solicitor General in this case is simply one of the litigants; to give special weight to his strategy in arguing this case at the very least does a disservice to Sisson, who — seemingly contrary to his own interests — has also made a concession: namely, that this Court does have jurisdiction under both the “motion in bar” and “motion in arrest” provisions. The views of the Justice Department on the “motion in bar” provision are entitled to precisely the same weight as the majority extends to Sisson’s views and to the Justice Department’s views on the “motion in arrest” provision.
This interpretation is reinforced at other points in the debate in a manner that also explains why the “jeopardy” language occurs in the motion-in-bar provision, and not in the other provisions. The Senators thought that indictments would normally be dismissed before trial began, so there would be no “jeopardy” problems in allowing appeals in such cases. Similarly, a motion in arrest after judgment was thought to involve no jeopardy problems, because the defendant made the motion himself in an attempt to overturn a verdict of guilty. See 41 Cong. Rec. 2753. But it was recognized that the motion in bar could be granted after trial had started, see 41 Cong. Rec. 2749; and it was not obvious whether in such a case “jeopardy” would have attached in the constitutional sense to prevent retrial. Hence, the “jeopardy” language was added “out of abundance of caution” to make clear that Congress was simply bringing that provision into line with the other provisions: i. e., appeals were to lie only where “constitutional jeopardy” had not attached; but jeopardy, not the impaneling of the jury, was to be the test of appealability in the case of the motion in bar just as in the case of the motion in arrest. See 41 Cong. Rec. 2191 (remarks of Senator Bacon); 41 Cong. Rec. 2756 (remarks of Senator Nelson) (“out of extreme *340caution and to put it exactly in harmony and in line with the provisions of the three preceding paragraphs, we have expressly provided that where the defendant has been put in jeopardy he can not be reindicted”).
The majority’s apparent willingness to accept Senator Patterson’s suggestion that the Beef Trust Case could have been appealed, ante, at 304 n. 57, virtually concedes the issue. For the whole point is that in distinguishing between the plea and the issue on the merits, the Senator was plainly giving his views as to what constitutes “legal jeopardy.”
It should be noted that even Senator Rayner’s amendment did not purport to narrow the scope of cases in which the Government could appeal; it only sought to remove any "double jeopardy” problem by declaring that the defendant should retain a favorable decision, whatever the result on appeal.
On the third day of debate, the amendment was agreed to, modified to read:
“Provided, That if upon appeal or writ of error it shall be found that there was error in the rulings of the court during the trial, a verdict in favor of the defendant shall not be set aside.” 41 Cong. Rec. 2819.
Senator Rayner’s earlier opponents continued to insist that no material change had been made by the amendment, since as they had argued, there would be no appeal in any event where the defendant had received a “verdict” in his favor, see opinion of The Chief Justice, ante, p. 308, as opposed to securing a favorable “judgment” by the trial court’s action in sustaining his plea or arresting judgment. See 41 Cong. Rec. 2820. Without explanation, the Conference Committee changed the amendment to read:
' “Provided, That no writ of error shall be taken by or allowed the United States in any case where there has been a verdict in favor of the defendant.”
Subsequent amendments to the Act omitted the proviso altogether (which no longer appears in the current version.) thus vindicating the arguments of Senator Rayner’s opponents that the amendment had no substantive effect.