tionable whether they were to be allowed in any criminal case, the better opinion being that the statute of Westminister 2, which first gave a bill of exceptions, is confined to civil proceedings, for the very significant reason assigned, that "if such bills were allowed, it would be attended with great inconveniency, because of the many frivolous exceptions that might be put in by prisoners, to the delay of justice; besides, in criminal cases, the judges are of counsel with the prisoner, and are to see that justice is done him. (1 Bacon Abr., title Bill of Exceptions. U. S. v. Gibert, 2 Sumner 104.) The operation of the writ would therefore be confined to such errors as were apparent upon the record and proceedings, and would in effect be like the review of a decision overruling a motion in arrest of judgment. For the like reason that where the judgment is arrested, the accused could be indicted again and tried for the offence, so where the judgment is reversed, or held for nought by the decision upon a writ of error, the defendant will have judgment of acquittal and discharge from that prosecution, (The King vs. Bourne, 7 Ad. & Ellis 68;) but it is no bar to another prosecution for the same offence, for the first being erroneous, he never was in jeopardy thereby, (4 Com. 393,) and the ends of public justice have not been satisfied either in his acquittal or conviction. (1 Chit. Cr. Law 756.) Leaving out of view the remedy by writ of error to reverse the proceedings, in outlawry and the terrible consequences, foreign to our system of jurisprudence, that followed upon the imaginary conviction of an absent offender, where the judges were moved by an innate sense of right to hold the crown to the utmost and strictest technicality in all the proceedings upon the record, (The King vs. Wilkes, 4 Burr 2565,) it is apparent that the writ of error at the common law, thus limited in its operation to errors necessarily apparent on the record, afforded but a partial means of redress against erroneous convictions.
Nor was a new trial ever granted at the common law after conviction of treason or felony; and only in misdemeanors by the superior courts to which the proceedings had been removed by certiorari. But if there be irregularity in the conviction, or it be
