§ 1738. Territorial courts. The federal courts of a territory have no jurisdiction to proceed in a criminal case upon information. There must be an indictment by grand jury, which the courts are empowered by congress to arrange. United States v. Joe,* 15 Int. Rev. Rec., 57. § 1739. Military reservation. The proper federal court has jurisdiction of an indictment for a murder committed on a military reservation of the United States. Scott v. United States,* 1 Wyom. T'y, 40.

§ 1740. In District of Columbia.- The circuit court of the District of Columbia has jurisdiction of any common law offense committed in the county of Washington, by an officer of the United States, of which it would have jurisdiction if committed by a person not an officer of the government, although such offense is committed by such officer by means consisting, in part, of acts done by virtue or by color of his office. United States v. Watkins,* 3 Cr. C. C.. 441.

$ 1741. Justices of the peace in the city of Washington have jurisdiction of actions for the recovery of fines, penalties and forfeitures, under the by-laws of the corporation. Ex parte Reed, 4 Cr. C. C., 582.

§ 1742. Where the fourth auditor of the treasury is charged with obtaining money belonging to the United States, by fraud, by means of drafts drawn on a navy agent of the United States, and by means of a requisition from the navy department upon the treasury of the United States, and he is not charged with having done any act in his official character, or by color of his office, nor charged with the violation of any official duty, nor with having made use of his office or official character to perpetrate the fraud, there is nothing in the character of the parties, or in the circumstances of the transaction, which would make it a case of exclusive federal jurisdiction. United States v. Watkins,* 3 Cr. C. C., 441.

§ 1743. The fraud having been perpetrated in that part of the District of Columbia ceded by Maryland, and the common law of Maryland being in force in that part of the District, the circuit court of the District of Columbia has jurisdiction of the offense as a crime at common law. Ibid.

§ 1744. The police court of the District of Columbia has no jurisdiction of cases of criminal libel. United States v. Buell,* 1 MacArth., 502.

§ 1745. In the District of Columbia, an indictment of a slave for larceny is wholly within the jurisdiction of a justice of the peace. United States v. Simms, 4 Cr. C. C., 618.

§ 1746. A justice of the peace in the District of Columbia alone has jurisdiction of an indictment of a slave for assault and battery upon a white man. United States v. Ellick, 2 Cr. C. C., 412.

§ 1747. By act of assembly of Maryland, a case of larceny by a slave is cognizable only by a justice of the peace. The federal circuit court cannot take jurisdiction of it. United States v. Jack, 1 Cr. C. C., 44; United States v. Louder, id., 103. Contra, United States v. Wright, id., 123.

§ 1748. Offenses committed in that district which is now the District of Columbia, before the same was ceded by Virginia to the federal government, might have been punished by the Virginia courts. If not, however, the federal courts, sitting in the District of Columbia, have power to punish such offenses. United States v. Heinegan, 1 Cr. C. C., 50.

§ 1749. Offenses in the army and navy.- Congress has power, under the constitution, to provide for the punishment of offeases committed in the army and in the navy, without a trial in the courts of law. The act of April 23, 1800, establishing rules for the government and regulation of the navy, is an execution of that power in respect to the naval forces. Where persons are accused of manslaughter in taking the life of a seaman belonging to a ship · of war, in doing what they claim to be the exercise of their rightful authority to command on board of a vessel of war, a court-martial of the navy has jurisdiction of the offense, and not the district court, since no statute of the United States gives the latter court jurisdiction. United States v. McKenzie,* 1 N. Y. Leg. Obs., 371.

§ 1750. Under Civil Rights Bill.—The act of congress of April 9, 1866, sometimes called "The Civil Rights Bill," after declaring among other things that citizens of every race or color should have the same right to sue, be parties, give evidence, and should have full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, provided that the circuit court of the United States should have jurisdiction of all causes, civil or criminal, affecting persons who are denied, or cannot enforce in the courts or judicial tribunals of the state or locality where they may be, any of the rights secured to them by the first section of the act." It is held that, under this act, the circuit court has not jurisdiction of the crime of murder committed in the district of Kentucky, merely because two persons who witnessed the murder were citizens of the African race, and for that reason incompetent by the law of Kentucky to testify in the courts of that state. They are not persons affected by the cause. Blyew v. United States, 13 Wall., 581.

§ 1751. Justice of the peace. The organic act of Wyoming territory declares that the jurisdiction of justices of the peace shall be limited by law, provided that they shall not have jurisdiction of cases involving the title to lands, or where the sum claimed exceeds $100. A statute of the territory provides that justices of the peace shall have jurisdiction of "all public offenses less than felony, except as otherwise provided by law, in which the punishment prescribed by law does not exceed a fine of $100, or imprisonment for six months." Assault and battery not being included in those offenses referred to as not otherwise provided by law, and no limit being fixed to its punishment, it is not within the jurisdiction of a justice of the peace. Walcott v. Wyoming Territory,* 1 Wyom. Ty, 67.

§ 1752. Military commission.—Where one, not a resident of any of the rebellious states, or a prisoner of war, but a citizen of Indiana, where the federal authority was unopposed, and never in the military or naval service, was, while at his home, arrested by the military power of the United States, imprisoned, and, on certain criminal charges preferred against him, tried, convicted, and sentenced to be hanged by a military commission, organized under the direction of the military commander of the district of Indiana, it was held that the commission had no power to punish him, and that he could not be tried except by the ordinary courts of law, such courts having been open and in the exercise of their judicial functions in that state at the time. Ex parte Milligan, 4 Wall., 2.

§ 1753. Under the act of March 3, 1863 (12 Statutes at Large, 731), for the enrolling and calling out the national forces, the courts of the loyal states were not divested of authority to try offenses committed within their jurisdiction by persons in the military service of the government. But while in the insurgent states the authority of the military tribunal was exclusive. Officers and soldiers of the armies of the Union were not subject, during the war, to the laws of the enemy, or amenable to his tribunals for offenses committed by them. Coleman 2. Tennessee, 7 Otto, 513.

§ 1751. On the invasion of a state by a hostile army, laws for the punishment of crime continue in force only for the protection and benefit of its own people. As to them the same acts which constituted offenses before the military occupation constitute offenses afterwards, and the same tribunals execute the punishments, unless superseded by tribunals prescribed by the military occupants; yet they have no jurisdiction over persons in the military service of the invaders. Ibid.

§ 1755. Though, on an indictment in a state court for an offense committed while the defendant was in the military service of the government, a plea of former conviction by a military tribunal is not a good plea, still the supreme court of the United States, on a writ of error to the supreme court of the state, considered it as raising the question of the jurisdiction of the state court, and decided that the court had no jurisdiction of the offense. Ibid. § 1756. A military court had no jurisdiction to try and sentence a person in St. Louis in 1855 for an offense committed in 1863 at Mobile, where the grand jury meeting next after his arrest, and after a list, including his name, had been furnished to the judges of the federal courts, failed to find an indictment against him. In re Murphy,* Woolw., 141.

§ 1757. Under embargo laws.— The circuit court having exclusive cognizance of all crimes and offenses cognizable under the laws of the United States, with few exceptions, is vested with cognizance of violations of the embargo enforcing act of January 9, 1809, declaring that the offenders "shall, upon conviction, be adjudged guilty of a high misdemeanor, and fined a sum by the court before which the conviction is had, equal to four times the value,' etc. United States v. Mann,* 1 Gall., 177. The offender may be proceeded against by information. United States v. Mann,* 1 Gall., 2.

§ 1758. Review by supreme court.-While the supreme court has no general power of review over the judgments of the inferior courts in criminal cases, yet it has the power to issue writs of habeas corpus and certiorari to examine the proceedings of an inferior court, so far as to determine whether the prisoner is detained by action of the court in which it exceeded its powers. Ex parte Lange, 18 Wall., 163 (§§ 1707–74).

XXIII. TWICE IN JEOPARDY.

SUMMARY Sentence contrary to law; modification, § 1759.- Law protects accused from being twice punished, § 1760.— Criminal prosecution not barred by civil suit. § 1761.— Power to discharge the jury before verdict, §§ 1762-1765.- Acquittal by a court-martial, § 1766.

$1759. Where the law, under which a conviction is had, authorizes imprisonment not exceeding one year or a fine not exceeding $200; and the court, through inadvertence, imposes both punishments, when it can rightfully impose but one; and the fine is paid and has passed

into the treasury; and the prisoner has undergone five days' imprisonment under the sentence, the court cannot vacate the judgment entirely, and, without reference to what has already been done under it, sentence the prisoner to one year's imprisonment from that date. To do so would be to punish him twice for the same offense, which is contrary to the constitution. The prisoner cannot be held under the second judgment and must be discharged. (Clifford, J., dissents.) Ex parte Lange, §§ 1767–74.

$ 1780. The constitutional provision that no person shall be subject to be twice put in jeopardy of life or limb for the same offense was designed as much to prevent the criminal from being twice punished for the same offense as from being twice tried for it. Ibid.

§ 1761. Where a statute provides that for a given offerse the offender shall pay a certain penalty, and shall, on conviction, be fined and imprisoned, the punishment thus provided is one punishment, and the fact that the penalty has been collected by civil suit is no bar to a criminal prosecution for the same offense. In re Leszynsky, $ 1775-77. See § 1788.

§ 1762. A court of the United States has authority in a criminal case to discharge a jury from giving a verdict, whenever, in its opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or when the ends of public justice would be defeated; and it may do this without the consent of the defendant; but the court is to exercite a sound discretion on the subject, and to use the power with the greatest caution, under urgent circumstances and for very plain and obvious causes. It seems that the court may exercise this power in a case of less than manifest necessity if the defendant consents. United States v. Watson, §§ 1778-82. See §§ 1791, 1798.

$1763. If the record does not show that the defendant consented to the withdrawal of a juror, it will be presumed that he did not. Ibid.

§ 1764. The illness of the district attorney, it not appearing that it occurred after the jury was sworn, or that his assistant, who made the motion to continue the case, could not try it, or the absence of witnesses, where it did not appear that their absence was first known after the jury was sworn, or that it occurred under such circumstances as to create a plain and manifest necessity therefor, does not justify the withdrawal of a juror without the defendant's consent. Ibid.

§ 1765. When the trial of an indictment has been commenced by the swearing of the jury, the defendant is in their charge, and is entitled to a verdict of acquittal if the case on the part of the prosecution is, for any reason, not made out against him, unless he consents to the discharge of the jury without giving a verdict, or unless there is such a legal necessity for discharging them as would, if spread on the record, enable a court of error to say that the discharge was proper. Ibid.

§ 1766. It is held that a previous trial and acquittal before a court-martial for a violation of the fifty-seventh section of the article of war, declaring that "whosoever shall be convicted of holding correspondence with or giving intelligence to the enemy, either directly or indirectly, shall suffer death or such other punishment as shall be ordered by the sentence of the court-martial," is not, by virtue of the constitutional provision, a bar to a trial and punishment for the same act as constituting the offense of giving aid and comfort to those in rebellion, prohibited by section 2 of the act of July 17, 1862. United States v. Cashiel, §§ 1783-84. [NOTES.-See §§ 1785-1809.]

EX PARTE LANGE.

(18 Wallace, 163-205. 1873.)

PETITION for writs of Habeas Corpus and Certiorari.

STATEMENT OF FACTS.-Lange had been convicted of stealing mail bags, and was sentenced to punishment by fine and imprisonment. He was in custody of the marshal for the southern district of New York under this sentence, and applied to this court for writs of habeas corpus and certiorari. His petition. showed that he had been sentenced to a fine and imprisonment for one year; that the fine had been paid and the imprisonment begun, when the court vacated its judgment during the same term and sentenced him anew to one year's imprisonment. It was under this last sentence that the prisoner was held when these writs were applied for. The law provided a punishment by fine or imprisonment.

§ 1767. Jurisdiction of this court under section 14 of the judiciary act of

1789.

Opinion by MR. JUSTICE MILLER.

On consideration of the petition which was filed in this case at a former day, the court was of opinion that the facts therein recited very fairly raised the question whether the circuit court, in the sentence which it had pronounced, and under which the prisoner was held, had not exceeded its powers. It therefore directed the writ to issue, accompanied also by a writ of certiorari, to bring before this court the proceedings in the circuit court under which the petitioner was restrained of his liberty. The authority of this court in such case, under the constitution of the United States, and the fourteenth section of the judiciary act of 1789, to issue this writ, and to examine the proceedings in the inferior court, so far as may be necessary to ascertain whether that court has exceeded its authority, is no longer open to question. The cases cited in the note below (a) will, when examined, establish this proposition as far as judicial decision can establish it.

§ 1768. The powers of a court of record over its own judgments during the term at which they are rendered:

Disclaiming any assertion of a general power of review over the judgments of the inferior courts in criminal cases, by the use of the writ of habeas corpus or otherwise, we proceed to examine the case as disclosed by the record of the circuit court and the return of the marshal, in whose custody the prisoner is found, to ascertain whether it shows that the court below had any power to render the judgment by which the prisoner is held. The first inquiry which presents itself is as to the nature and extent of the power of the circuit court over its own judgments in reversing, vacating or modifying them.

We are furnished by counsel with a very full review of the cases in the English and American courts on the question of the power of courts over their judgments once rendered in criminal cases. Many of these decisions in the English courts are on writs of error and have but little bearing on the question before us. Others, which seem to present cases of judgments vacated or mod ified during the term at which they were rendered, are based upon the doctrines of the English courts, that there is no judgment or decree until the decree in chancery is enrolled or the judgment has been signed by the judge of the court of law, and become technically a part of the judgment roll. Archb. Cr. Pl., 176. These decisions, some of which go to the extent of denying all right to amend or change the judgment after it becomes a part of the roll, are inapplicable to our system, where a judgment roll, strictly speaking, is no part, or, at least, not a necessary part of our system of judicial proceedings. In most, if not all, our courts a minute-book, or a record of the proceedings of the court, is kept, and is the appropriate repository of all the orders and judgments of the court; and this book with all its entries is, as a general rule, under the complete control of the court during the term to which such entries relate.

The general power of the court over its own judgments, orders and decrees, in both civil and criminal cases, during the existence of the term at which they are first made, is undeniable. And this is the extent of the proposition intended to be decided in the case of Basset v. United States, 9 Wall., 38. That was a

(a) United States v. Hamilton, 3 Dal., 17; Ex parte Burford, 3 Cranch, 418; Ex parte Bollman, 4 id., 75; Ex parte Watkins, 3 Pet., 193; S. C., 7 id., 568; In re Metzger, 5 How., 176; In re Kaire, 14 id., 103; Ec parte Wells, 19 id., 307 (§§ 8252-56, infra); Ex parte Milligan, 4 Wall., 2; Ec parte McCardle, 6 id., 318; S. C., 7 id., 506; Ec parte Yerger, 8 id., 85.

case like this, in which, in a prosecution for misdemeanor, the prisoner had been sentenced to imprisonment. But it was by a judgment rendered on confession. He was afterwards, during the same term, brought into court and the judgment ́vacated, his plea of guilty withdrawn, and leave given to plead anew; and then he gave bail and his case was continued. It was in an action on the bail bond which he had forfeited, that the sureties raised the question of the right of the court to vacate the former judgment. In general terms, without much consideration, for no counsel appeared for the sureties, this court sustained the right. If it was intended in that case to raise the question of the right of the court to inflict a new and larger punishment on the prisoner, without reference to the time of his imprisonment on the one set aside, that point was not presented so as to receive the attention of the court, and certainly was not considered or decided. It would seem that there must, in the nature of the power thus exercised by the court, be in criminal cases some limit to it.

§ 1769. In criminal cases the power of courts over their judgments during the term at which they are rendered does not extend to cases where punishment has already been inflicted.

The judgment of the courts in this class of cases extends to life, liberty and property. The terms of many of them extend through considerable periods of time, often many months, with adjournments and vacations in the same term, at the discretion of the judge. A criminal may be sentenced to a disgraceful punishment, as whipping, or, as in the old English law, to have his ears cut off, or to be branded in the hand or forehead. The judgment of the court to this effect being rendered and carried into execution before the expiration of the term, can the judge vacate that sentence and substitute fine or imprisonment, and cause the latter sentence also to be executed? Or if the judgment of the court is that the convict be imprisoned for four months, and he enters immediately upon the period of punishment, can the court, after it has been fully completed, because it is still in session of the same term, vacate that judg ment and render another, for three or six months' imprisonment, or for a fine? Not only the gross injustice of such a proceeding, but the inexpediency of placing such a power in the hands of any tribunal, is manifest.

If there is anything settled in the jurisprudence of England and America, it is that no man can be twice lawfully punished for the same offense. And though there have been nice questions in the application of this rule to cases in which the act charged was such as to come within the definition of more than one statutory offense, or to bring the party within the juris liction of more than one court, there has never been any doubt of its entire and complete protection of the party when a second punishment is proposed in the same court, on the same facts, for the same statutory offense. The principle finds expression in more than one form in the maxims of the common law. In civil cases the doctrine is expressed by the maxim that no man shall be twice vexed for one and the same cause. Nemo debet bis vexari pro una et eadem causa. It is upon the foundation of this maxim that the plea of a former judgment for the same matter, whether it be in favor of the defendant or against him, is a good bar to an action.

In the criminal law the same principle, more directly applicable to the case before us, is expressed in the Latin, "Nemo bis punitur pro eodem delicto" (2 Hawk. Pl. Cr., 377), or, as Coke has it, " Nemo debet bis puniri pro uno delicto." 4 Reports, 43, a; 11 id., 95, b. No one can be twice punished for the same. crime or misdemeanor is the translation of the maxim by Sergeant Hawkins.