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658 a-671f.
678-679 a.


General Views of the Rule.

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657, 658. How binds Defendants and Government.
When the Jeopardy Attaches to the Defendant.
The like as concerns his Waiver of Rights.
The like as concerns his Frand.

When the Offences are the same.

692. The Doctrine of Autrefois attaint.

§ 649. WE come now to the consideration of a consequence which may be said to flow, by operation of law, rather from the proceedings than from the final judgment of the court. It is a principle prevailing in probably every system of jurisprudence, certainly in ours, that, when a matter has fairly passed to final adjudication, it cannot be litigated in any fresh suit between the same parties.1 But according to the general doctrine, this rule does not prevent a rehearing of the cause in proper circumstances. In the criminal law, however, the general right to a rehearing is restrained by another principle, embodied in the common law maxim, "that," as Blackstone expresses it, "no man is to be brought into jeopardy of his life more than once for the same offence." 2

§ 650. Whether, however, the adjudications of the English courts, as distinguished from the observations of judges on the bench, sustain the maxim just quoted, in its full extent,

1 Broom Leg. Max. 2d ed. 241 et seq.

4 Bl. Com. 335.

may be doubted. In this country, we have taken the maxim itself for our rule, superseding thereby the common law as decided, if really the decided common law differs from it; the constitution of the United States providing, that "no person shall be.... subject, for the same offence, to be twice put in jeopardy of life or limb." Though this provision binds only the United States, not extending to the several States, a question on which difference of judicial opinion formerly existed, yet the constitution of nearly every particular State has the same provision; and the courts of all the States receive it as expressive of the true common law rule.


§ 651. Judges appear to have sometimes regarded this constitutional provision as merely affirming the common law; which, therefore, they have looked to ascertain its interpretation and true application. But the thoughtful reader, who has considered what has already been advanced in this volume concerning legal principles, cannot fail to notice, that the English maxim is necessarily no more than the expression, by individual judges, or text writers, of what they suppose to be such a principle, and that, if the law as decided in the cases should be found differing from the maxim, it, and not the maxim, must govern the English courts. In this country, however, we have put the maxim foremost, and left it to work out its own consequences: 5 the case can hardly be

1 U. S. Const. amendm. art. 5.

2 That it does bind the State, see The State v. Moor, Walker, Missis. 134; People v. Goodwin, 18 Johns. 187, 201; Commonwealth v. Purchase, 2 Pick. 521. That it does not bind the States, see United States v. Keen, 1 McLean, 429, 437, 438; United States v. Gibert, 2 Sumner, 19, 48, 51, 52, 53; Jackson v. Wood, 2 Cow. 819, 820, note; Livingston v. The Mayor of New York, 8 Wend. 85, 100; Colt v. Eves, 12 Conn. 243; Baker v. l'eople, 3 Cow. 686, 701; Fox v. Ohio, 5 How. U. S. 410.

See United States v. Gibert, 2 Sumner, 19, 38; Commonwealth v. Cook,

6 S. & R. 577; Commonwealth v. Olds, 5 Litt. 137.

See ante, § 24, 25, 29, 257, note, 336, 339, note.

See The State v. Norvell, 2 Yerg. 24.


said to come within the rule, that words of established legal meaning take, in a new law, the signification they bore in the old Still the American courts are not quite agreed as

to the weight, on this subject, to be given the English decisions; the English decisions are themselves in some respects inharmonious; and the American, therefore, are in still greater discord. We must travel over this uneven way as well as we can, in a direction indicating what doctrines appear to us best sustained by principle.

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§ 652. The subject divides itself as follows: 1. General Views of the Rule; II. When the Jeopardy Attaches to the Defendant; III. The like as concerns his Waiver of Rights; IV. The like as concerns his Fraud; V. When the Offences are the same; VI. The Doctrine of Autrefois attaint.

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I. General Views of the Rule.

§ 652 a. Under this sub-title, the following particulars renotice: First, The locality over which this rule of constitutional law extends; Secondly, The offences to which it is applied; Thirdly, How it binds the defendant and the gov ernment severally.

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$653. First. The Locality over which it Extends. consequence follows from familiar principles,2 that the constitutional provision under consideration has no extraterritorial force. On the one hand, it cannot prevent a foreign government from prosecuting for crime a person who has been tried for the same crime here; on the other hand, it cannot exempt from prosecution here one who has been tried abroad. 'Ordinarily the other rule, that men are not to be dealt with criminally here for what they do on foreign territory, would bar

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any indictment, in such a case, in more than one locality. Yet there are circumstances in which a particular wrongful act may be a violation of the laws of both our and another country; as, for example, where the party is one of our citizens, and our law is extended over him, while the law of the place contains the same inhibition. But though such a case is not within the letter of our constitutions, yet, on general principles of international jurisprudence, if a valid sentence of acquittal or conviction were "pronounced under the mu nicipal law of the State where the supposed crime was com mitted, or to which the supposed offender owed allegiance," it would, as Mr. Wheaton observes, "be an effectual bar to a prosecution in any other State. If pronounced in any other foreign State than that where the offence is alleged to have been committed, or to which the party owed allegiance, the sentence would be a nullity." 2

§ 654. "Robbery on the seas is considered as an offence within the criminal jurisdiction of all nations. It is against all, and punished by all; and there can be no doubt, that the plea of autrefois acquit would be good in any civilized State, though resting on a prosecution instituted in the courts of any other civilized State.". The reason of this proposition is the same which supports the entire common law doctrine of autrefois convict and autrefois acquit. If one judicial tribunal has brought a person into legal jeopardy of conviction for an alleged crime, no other one will afterward entertain the matter. And, while the courts of the several nations take cognizance mutually each of what the other does, the case must be the same in whatever country the jeopardy arises; provided, of course, it is real jeopardy, for the identical

1 Ante, § 576-583.

2 Wheaton International Law, 6th ed. 184. See, as between our States, and as creating some doubt about this doctrine, The State v. Adams, 14 Ala. 486; The State v. Brown, 1 Hayw. 100; The State v. Seay, 3 Stew. 123, 129; People v. Burke, 11 Wend. 129; ante, § 613 a.

Johnson, J., in United States v. The Pirates, 5 Wheat. 184, 197.

offence, 'viewed as the law views it, not viewed merely as by án uninformed person.

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$655. But in this country more complicated questions, arise. An act committed within the territorial limits of a State is sometimes found to be contrary to a statute of the United States; also contrary to the law, statutory or common, of the State. And the question comes, whether a prosecution in the courts of one of the governments will bar proceedings against the defendant for the same act in the tribunals of the other. This question divides itself into two questions, first, whether, if the laws so stand apparently, both laws are valid, or whether the power of the one govern ment, which in the particular thing may be superior, supersedes that of the other. Secondly, assuming both laws to be valid, whether a prosecution in the courts of one of the gov ernments bars a prosecution for the same act in those of the other.c

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§ 655 a. The former branch of the inquiry is considered in other connections. Yet the observation may here be made, that the question seems to vary with the particular offence, and with the language employed in the constitution and statutes of the United States concerning it. As to the remaining branch, assuming the possibility of both laws being valid, the doctrine best sustained in reason is, that the courts of either government will give practical effect to a judgment of acquit tal or conviction in those of the other government, though not bound by our constitutional provision to do so. The case, in other words, seems on principle to stand the same as the one of acquittal or conviction in a foreign country, already mentioned. Of course also, if a statute by express words or by necessary implication should point in a different direction, our tribunals would be bound to follow; because the prin

1 Ante, § 613; Vol. II. § 236-239, 504.

Ante, § 653....

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