again, and this would be extending the exemption from being twice put in jeopardy greatly beyond the common law, because there the prisoner could not be relieved from such erroneous judgment by any means short of a recommendation to pardon.
We can readily understand why, in England, the common law—that no man should be twice put in jeopardy, in order to be an affectual shield and protection—must have been inflexible. Even if the exercise of executive elemency in a republic were not an indifferent as well as impolitic substitute for the mercy of the crown, it is not in accordance with the spirit of our institutions that it should be so. The words, "once in jeopardy," would become unmeaning, and the constitutional right growing out of it would be valueless, unless construed, in meaning and spirit, with reference to the changes in the law, affording additional guaranties to the accused, all having the same end in view, to secure him a fair and impartial trial, and to protect him against oppression. This was the error in the opinion of Judge Story. Because, unless a party convicted could waive his constitutional right not to be twice put in jeopardy by submitting to a new trial, the right would become an incumbrance instead of a privilege.
And we think that when a party convicted upon a valid indictment avails himself of the statute to be relieved of a conviction, which he thereby alleges is erroneous or irregular, he does so on the implied condition of submitting to a new trial, whether he has applied for it in the court below or not. So far as the statute gives to this court any controlling discretion to award a new trial in such cases, it would seem that we are bound by considerations of public policy, presuming in favor of the intention of the legislature, to adopt that construction. In England, where the necessity for strictness in criminal proceedings, has induced corresponding degree of caution and regularity, the evils that would result from an absolute discharge in all cases on reversal for error might not be seriously felt; but in this country, where the law itself has not yet become settled, and its administration is so often confided to inexperienced officers, the consequences of giving such a construction to the statute, would be
