(concurring):
I concur in the opinion of the Court and accept its reasoning. I am convinced that we are forbidden to hear the substantive issues that the government seeks to appeal. Because of their importance, however, I write separately to offer some additional observations as to why I think we cannot hear them. Under the Criminal Appeals Act of 1970, read in the light of the history and purpose of the Fifth Amendment’s Double Jeopardy Clause, we must decline the government’s invitation, in effect, to retry the defendants in this Court on the record and opinion below.
In dismissing the government’s appeal, the opinion of the Court relies on, inter alia, the Criminal Appeals Act of 1970 (the “Act”), codified as 18 U.S.C. § 3731. The Act authorizes federal prosecutors to appeal “from a decision, judgment, or order of a district court dismissing an indictment or information ... except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.” Id. (emphasis added). Largely as a vestige of the common-law rule prohibiting the government from appealing in criminal cases absent explicit statutory warrant,1 government appeals in criminal cases prior to the Act were rare. See United States v. Scott, 437 U.S. 82, 89, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978).
The purpose of the Act was to give the government something new, the ability to appeal in criminal cases “to the constitutional *737limits.” United States v. Wilson, 420 U.S. 332, 338, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975). But “the constitutional limits” were not new. Adopted in 1791, the Double Jeopardy Clause of the Fifth Amendment reads: “No person shall ... be subject for the same offence to be twice put in jeopardy of life or limb.” Ensconced between the accused felon’s right to prosecution by grand jury indictment and the freedom from compelled self-incrimination, the Double Jeopardy Clause is a basic safeguard of the individual against the might of the state.
The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity.
United States v. Jenkins, 420 U.S. 358, 370, 95 S.Ct. 1006, 43 L.Ed.2d 250 (1975) (quoting Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957)). “[T]he double jeopardy prohibition of the Fifth Amendment represents a fundamental ideal in our constitutional heritage.” Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).
The obvious bears underscoring: Had Congress chosen not to set forth the double-jeopardy limitation in the Act, the Fifth Amendment would have imposed it nonetheless.
In United States v. Jenkins, 490 F.2d 868, 870-74 (2d Cir.1973) (Friendly, J.), aff'd, 420 U.S. 358, 95 S.Ct. 1006, 43 L.Ed.2d 250 (1975), and again in United States v. Morgan, 51 F.3d 1105, 1111-12 (2d Cir.) (Cardamone, J.), cert. denied, 516 U.S. 861, 116 S.Ct. 171, 133 L.Ed.2d 112 (1995), this Court meticulously rehearsed the history of the Constitution’s double-jeopardy proscription. See also Wilson, 420 U.S. at 339-40, 95 S.Ct. 1013; Bartkus v. Illinois, 359 U.S. 121, 151-55, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959) (Black, J., dissenting). Its roots reach back at least to Athens in the Fourth Century B.C., at the time of Demosthenes. Jenkins, 490 F.2d at 870 (citing 1 Demosthenes 589 (Vance trans. 1962)). The English common law recognized it as early as the 12th Century, during the dispute between Henry II and Thomas á Beeket, in the context of duplicate trials in ecclesiastical and secular courts. See Jenkins, 490 F.2d at 871; Martin L. Friedland, Double JeopaRdy 326-28 (1969).
By 1642, when Lord Coke completed his Institutes of the Laws of England, the common law’s concern had broadened to encompass four related safeguards: a prohibition on one or more prosecutions for the same offense following an acquittal (the common law plea of autrefois2 acquit); following a conviction (autrefois convict); following a conviction for a lesser-included offense (autrefois attaint); or following a pardon. See Jenkins, 490 F.2d at 871; Jay A. Sigler, Double Jeopabdy: The Development of a Legal and Sooial Polioy 16-19 (1969). See also 2 Matthew Hale, The HistoRY of the Pleas of the Crown, Chap. XXXI (1736) (summarizing the autrefois pleas). In 1769, Blaekstone used the term “jeopardy” to describe the principle underlying Coke’s pleas of autrefois acquit and autrefois convict; these pleas, he wrote, rested on “th[e] universal maxim of the common law of England, that no man is to be brought into jeopardy of his life, more than once, for the same of-fence.” 4 William Blaekstone, Commentaries on the Laws of England 329 (1769).
“ ‘Coke’s Institutes were read in the American Colonies by virtually every student of the lav^ and no citation is needed to establish the impact of Hale and Blaekstone on colonial legal thought.” Gannett Co. v. DePasquale, 443 U.S. 368, 424, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979) (Blackmun, J., concurring in part, dissenting in part) (quoting Klopfer v. North Carolina, 386 U.S. 213, 225, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967)); see also Gertz v. Robert Welch, Inc., 418 U.S. 323, 382 n. 14, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974) (White, J., dissenting) (“The men who wrote and *738adopted the [Bill of Rights] were steeped in the common-law tradition of England. They read Blackstone, ‘a classic tradition of the bar in the United States’ and ‘the oracle of the common law in the minds of the American Framers.’ ”) (citation omitted); Schick v. United States, 195 U.S. 65, 69, 24 S.Ct. 826, 49 L.Ed. 99 (1904) (similar). It is therefore not surprising that, in constructing a charter of individual liberties to supplement the structural provisions of the Constitution, the Framers looked to common-law protections against the power of the Crown, and adopted the prohibition of double jeopardy reflected in the Institutes, the Pleas, and the Commentaries.
Thus, at the behest of several states, James Madison included in the Bill of Rights he presented to the House of Representatives in June 1789: “No person shall be subject, except in cases of impeachment, to more than one punishment or one trial for the same offence.” Jenkins, 490 F.2d at 873 (quoting 1 Annals of Cong. 434 (1789)). The Senate changed the prohibition to “be twice put in jeopardy of life or limb by any prosecution,” the phrase “by any prosecution” was dropped in committee, and the clause’s now familiar wording adopted. Sigler, Double JEOPARDY at 31-32.
[EJvery person acquainted with the history of governments must know that state trials have been employed as a formidable engine in the hands of a dominant administration .... To prevent this mischief the ancient common law, as well as Magna Charta itself, provided that one acquittal or conviction should satisfy the law; or, in other words, that the accused should always have the right secured to him of availing himself of the pleas of autrefois acquit and autrefois convict. To perpetuate this wise rule, so favorable and necessary to the liberty of the citizen in a government like ours, so frequently subject to changes in popular feeling and sentiment, was the design of introducing into our Constitution the [Double Jeopardy] clause....
Ex Parte Lange, 18 Wall. 163, 85 U.S. 163, 171, 21 L.Ed. 872 (1874) (internal quotation marks and citation omitted; ellipses in the original). It is against this backdrop that the Supreme Court has explored the reach of and limitations on the Criminal Appeals Act of 1970.
In construing the Double Jeopardy Clause both before and after the Act, the Supreme Court has emphasized its ban on subjecting a criminal defendant to multiple proceedings on the issue of guilt or innocence. See, e.g., Smalis v. Pennsylvania, 476 U.S. 140, 145, 106 S.Ct. 1745, 90 L.Ed.2d 116 (1986) (“subjecting the defendant to postacquittal fact-finding proceedings going to guilt or innocence violates the Double Jeopardy Clause”); Wilson, 420 U.S. at 346, 95 S.Ct. 1013 (the “prohibition against multiple trials [is] the controlling constitutional principle”); Kepner v. United States, 195 U.S. 100, 133, 24 S.Ct. 797, 49 L.Ed. 114 (1904) (“to try a man after a verdict of acquittal is to put him twice in jeopardy”).
Whatever the vagaries of the Double Jeopardy Clause,3 this much seems certain: Under the prohibition, the government cannot appeal a jury’s acquittal. And, although we can imagine a double-jeopardy regimen in which protection of the citizen-jury’s autonomy requires that a jury’s acquittal be more rigorously safeguarded than a judge’s, the Supreme Court has made it equally clear that the rule prohibiting the revisitation of acquittals applies as much to trials in which a judge decides the facts as it does to a prosecution tried to a jury. See, e.g., Finch v. United States, 433 U.S. 676, 677, 97 S.Ct. 2909, 53 L.Ed.2d 1048 (1977) (per curiam); Jenkins, 420 U.S. at 365-66, 95 S.Ct. 1006; United States v. Sisson, 399 U.S. 267, 290, 90 S.Ct. 2117, 26 L.Ed.2d 608 (1970).
In United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975), decided several years after the Act’s adoption, the Supreme Court considered an appeal after a jury had convicted the defendant of embezzlement. Subsequent to the conviction, the trial court dismissed the indictment on the *739theory that preindictment delay had made a fair trial impossible. The government, seeking to use the powers recently granted to it by the Act, appealed, but the court of appeals dismissed the appeal on double-jeopardy grounds. The Court reversed, holding that there was no double-jeopardy bar because the appeals court, if it found the trial court’s ruling depended on legal error, could simply reinstate the jury’s verdict. There was no need for a further trial or other proceeding to resolve factual issues, no prospect of a second “jeopardy” prohibited by the Fifth Amendment. Id. at 353, 95 S.Ct. 1013.
In United States v. Jenkins, 420 U.S. 358, 95 S.Ct. 1006, 43 L.Ed.2d 250 (1975), decided the same day as Wilson, the Supreme Court held that the Double Jeopardy Clause forbade an appeal where, after a bench trial and without a general finding of guilt, the trial court had dismissed the indictment and discharged the defendant. Id. at 367, 95 S.Ct. 1006. Unlike in Wilson, the circumstances did not permit “a reversal with instructions to reinstate the general finding of guilt: there was no such finding, in form or substance, to reinstate.” Id. at 368, 95 S.Ct. 1006.
Even if the District Court were to receive no additional evidence, it would still be necessary for it to make supplemental findings. The trial, which could have resulted in a judgment of conviction, has long since terminated in respondent’s favor. To subject him to any further such proceedings at this stage would violate the Double Jeopardy Clause.
Id. at 370, 95 S.Ct. 1006.
The Jenkins court, by way of a dictum, observed:
In a bench trial, both functions [the jury as a finder of fact and the judge as a ruler on questions of law] are combined in the judge, and a general finding of “not guilty” may rest either on the determination of facts in favor of a defendant or on the resolution of a legal question favorably to him. If the court prepares special findings of fact, either because the Government or the defendant requested them or because the judge has elected to make them sua sponte, it may be possible upon sifting those findings to determine that the court’s finding of “not guilty” is attributable to an erroneous conception of the law whereas the court has resolved against the defendant all of the factual issues necessary to support a finding of guilt under the correct legal standard.
Id. at 366-67, 95 S.Ct. 1006. This is the dictum on which the government relies in pursuing this appeal.
It is significant that Wilson and Jenkins were decided the same day; they are jurisprudential bookends. Wilson determined that a jury’s guilty verdict wrongly set aside by a judge could be reinstated by an appellate court. There was no double jeopardy because no additional trial, no second “jeopardy,” was required for conviction. The Jenkins dictum applied the same principle to bench trials. Just as, under Wilson, an appellate court may reverse a trial judge in order to reinstate a jury’s guilty verdict, under Jenkins, we may overturn a trial court’s judgment for a criminal defendant in a bench trial if, but only if, we are in effect reinstating a finding of guilt by the trial judge; where “the court has resolved against the defendant all of the factual issues necessary to support a finding of guilt under the correct legal standard.” Id. at 367, 95 S.Ct. 1006.
There are, as the opinion of the Court notes, four factual findings that the court below was required to make in the case at bar in order to convict the defendants of contempt of court: that the government had proved beyond a reasonable doubt that “(1) the [district] court [had] entered a reasonably specific order [of which the defendants were accused of being in contempt]; (2) [the defendants] knew of that order; (3) [the defendants] violated that order; and (4) [their] violation was willful.” United States v. Cutler, 58 F.3d 825, 834 (2d Cir.1995). The district judge, acting as the trier of fact, found the government proved the first three elements, but not the fourth, willfulness, reasoning that the defendants’ “objectively based and, indeed, conscience-driven religious belief, preelude[d] a finding of willfulness.” United States v. Lynch, 952 F.Supp. *740167, 170 (S.D.N.Y.1997). He therefore acquitted the defendants.
The government urges that the Jenkins dictum allows this appeal, permitting us to “sift” the findings of fact below to determine for ourselves whether the defendants were in fact “willful” and therefore guilty of contempt.4 But that is not, I think, what the Jenkins dictum says, means or permits us to do.
Judge Sprizzo did not “resolve against the defendants] all of the factual issues necessary to support a finding of guilt.” Jenkins, 420 U.S. at 367, 95 S.Ct. 1006. Instead, he specifically found that willfulness,5 the fourth issue, had not been proved beyond a reasonable doubt. “[A] verdict or general finding of guilt by the trial court is a necessary predicate to conviction,” Finch, 433 U.S. at 677, 97 S.Ct. 2909, and there was none here. There is thus no conviction for us to reinstate.6
If we were to examine the record below, including the stipulation on which the court’s judgment was based, together with the opinion of the court containing its explanation for its findings of fact, as the dissent does, we might come to a conclusion different from the district court’s, for reasons spelled out in the dissent. But that is precisely what the Double Jeopardy Clause forbids us to do. Having been acquitted by the trial court, the defendants can never be tried again for the same offense. And that principle holds irrespective of whether the prohibited second trial would be held anew in the district court or by this Court on the record created below. “The court of first instance, having jurisdiction to try the question of the guilt or innocence of the accused, found [Lynch and Mos-cinski] not guilty; to try [them] again upon the merits, even in an appellate court, is to put [them] a second time in jeopardy for the same offense.” Kepner v. United States, 195 U.S. 100, 133, 24 S.Ct. 797, 49 L.Ed. 114 (1904).
Between July 1971, the year after the Criminal Appeals Act was passed, and June 1997, the last year for which statistics are available, there were 42,565 criminal bench trials in the federal district courts, 11,488 of them ending in acquittal. 1972-1997 Admin. Off. U.S. Cts. Ann. Rep. Table D-7. We may assume, I think, that inasmuch as judges are human and the trial process imperfect, some of the acquittals resulted in the guilty going free. Yet not a single one of those acquittals appears to have been overturned on appeal.
That is as it should be. If and when there is a wrongful acquittal, the remedy, if remedy there be, rarely if ever lies on appeal. There is a price, but it is one carefully exacted by the Fifth Amendment.
. In 1907, Congress passed the first Criminal Appeals Act, 34 Stat. 1246, but “the rules governing the conditions of appeal became highly technical .... [and the Supreme Court] concluded that the Act was a ‘failure ... a most unruly child that ha[d] not improved with age.'" United States v. Wilson, 420 U.S. 332, 337, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975) (quoting United States v. Sisson, 399 U.S. 267, 307, 90 S.Ct. 2117, 26 L.Ed.2d 608 (1970)).
. “Autrefois," in modem French, means “of the past." Robert Collins Dictionnaire 54 (Nouvelle Édition 1987).
. See, e.g., Akhil Reed Amar, Double Jeopardy Law Made Simple, 106 Yale L.J. 1807 (1997); Peter Westen, The Three Faces of Double Jeopardy: Reflections on Government Appeals of Criminal Sentences, 78 Mich. L.Rev. 1001 (1980).
. The statement in Jenkins is, as we have pointed out, a dictum and Jenkins itself was overruled in United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978), albeit in the course of broadening the government's ability to appeal. The dictum was, however, adopted by this court in United States v. Fayer, 523 F.2d 661, 663-64 (2d Cir.1975), shortly after Jenkins was decided, and we write on the assumption that it is good law.
. The finding of willfulness in a contempt case is a finding of fact. See, e.g., United States v. Themy-Kotronakis, 140 F.3d 858, 864 (10th Cir.1998); United States v. Rapone, 131 F.3d 188, 195 (D.C.Cir.1997); In re Levine, 27 F.3d 594, 596 (D.C.Cir.1994), cert. denied, 514 U.S. 1015, 115 S.Ct. 1356, 131 L.Ed.2d 214 (1995); United States v. Metropolitan Disposal Corp., 798 F.2d 1273, 1274 (9th Cir.1986).
.One can imagine a case, however rare, in which a judge's not-guilty verdict could be overturned under the Jenkins dictum. If the district courL here had found willfulness but had acquitted the defendants on the explicit but erroneous ground, say, that injury to the clinic and its patients was also an element of the crime but had not been established, the dictum might well permit such a reversal. The district court would have, in effect, convicted the defendants by finding against them on all elements of the crime. We would merely be reinstating that conviction by reversing the district court's erroneous holding that injury is also an element of contempt. This, however, is not such a case.