not warranted by the facts, the judge will respite the sentence, to enable the defendant to apply for a pardon. If the case be one of difficulty, it is reserved for the consideration of the court in bank, upon whose recommendation a pardon from the crown, or some commutation of the sentence, usually follows as a matter of course. (1 Chit. on Grim. Law 654. 2 Russell on Crimes 726. U. S. vs. Gibert, 2 Sumn. 104.) But, at an early day in the American States, the courts, by virtue of their inherent powers for the promotion of justice and untrammeled by the common law, adopted the practice of granting new trials in all criminal cases, on the application of the prisoner, for errors or irregularities occurring to his prejudice during the progress of the trial. The opinion of Parker, C. J., in Com. vs. Green, (17 Mass. 533,) and of the general court of Virginia, in Ball vs. The Commonwealth, (8 Leigh 727,) are able vindications of the reason and propriety of such a practice; and on the question of power to grant new trials in cases of felony, the elaborate opinion of Story, J., in U. S. vs. Gibert, before cited, stands alone among the decisions in this country. The argument used by him against the power, that it was a violation of the constitutional provision having its foundation in the common law, that no man shall be twice put in jeopardy of life or limb for the same offence, has been satisfactorily answered by resting the new trial on the ground of tho prisoner's consent. The jeopardy having resulted in his conviction, it is rather a merciful interposition of the court than any invasion of his right to set aside the opportunity upon his own application, in order to afford him the opportunity of another trial. So that on this subject the only open question at this day is, as to the extent of the power of the court to discharge the jury for any cause, without the consent of the prisoner, and put him on trial again; and where the power is conceded, whether it rests in the discretion of the court, or can only be exercised in cases of inevitable necessity.
The Revised Statutes of 1839 allowed bills of exceptions and appeals and writs of error of right in all criminal cases, which until then, in this State, and under the territorial organization,
