United States v. Sisson/Opinion of the Court

by John Marshall Harlan II

United States Supreme Court

399 U.S. 267

UNITED STATES, Appellant,  v.  John Heffron SISSON, Jr.

 Argued: Jan. 20 and 21, 1970. --- Decided: June 29, 1970

The Government seeks to appeal to this Court a decision by a District Court in Massachusetts holding that appellee Sisson could not be criminally convicted for refusing induction into the Armed Forces. The District Court's opinion was bottomed on what that court understood to be Sisson's rights of conscience as a nonreligious objector to the Vietnam war, but not wars in general, under the Free Exercise and Establishment Clauses of the First Amendment and the Due Process Clause of the Fifth Amendment to the Constitution of the United States. The District Court's primary conclusion, reached after a full trial, was that the Constitution prohibited 'the application of the 1967 draft act to Sisson to require him to render combat service in Vietnam' because as a 'sincerely conscientious man,' Sisson's interest in not killing in the Vietnam conflict outweighed 'the country's present need for him to be so employed,' 297 F.Supp. 902, 910 (1969).

The District Court characterized its own decision as an arrest of judgment, and the Government seeks review here pursuant to the 'arresting judgment' provision of the Criminal Appeals Act, 18 U.S.C. § 3731, an Act that narrowly limits the Government's right to appeal in criminal cases to certain types of decisions. On October 13, 1969, this Court entered an order postponing further consideration of the question of jurisdiction to the hearing of the case on the merits, 396 U.S. 812, 90 S.Ct. 92, 24 L.Ed.2d 65 (1969). For reasons that we elaborate in what follows, we conclude that the decision below, depending as it does on facts developed at Sisson's trial, is not an arrest of judgment but instead is a directed acquittal. As such, it is not a decision that the Government can appeal. Consequently, this appeal must be dismissed for lack of jurisdiction without our considering the merits of this case. We, of course, intimate no view concerning the correctness of the legal theory by which the District Court evaluated the facts developed at the trial. ^[1]

As a predicate for our conclusion that we have no jurisdiction to entertain the Government's appeal, a full statement of the proceedings below is desirable.

* A single-count indictment charged that Sisson 'did unlawfully, knowingly and wilfully fail and neglect and refuse to perform a duty' imposed by the Military Selective Service Act of 1967 and its regulations, in violation of § 12 of the Act, 81 Stat. 105, 50 U.S.C. App. § 462(a) (1964 ed., Supp. IV), because he failed to obey an order by his local draft board to submit to induction.

Prior to trial, Sisson's attorney moved to dismiss the indictment on three grounds. It was claimed that Sisson's refusal to submit to induction was justified first, because 'the government's military involvement in Vietnam violates international law'; and, second, because Sisson 'reasonably believed the government's military involvement in Vietnam to be illegal.' As a third ground, Sisson claimed that the Selective Service Act and its regulations were unconstitutional (a) because the procedures followed by local boards lacked due process; and (b) because compulsory conscription during peacetime was unnecessary and stifled fundamental personal liberties. In support of the motion to dismiss, appellee stated:

'At the time I refused to submit to induction into the armed forces I believed, as I believe today, that the United States military involvement in Vietnam is illegal under international law as well as under the Constitution and treaties of the United States. I believed then, and still believe, that my participation in that war would violate the spirit and the letter of the Nuremberg Charter. On the basis of my knowledge of that war, I could not participate in it without doing violence to the dictates of my conscience.' At the hearing on appellee's motion to dismiss, the District Judge said that he had 'an open mind' concerning appellee's first and third grounds. However, the court said there was 'nothing to' the second ground, noting that what 'the defendant reasonably believes * * * cannot be raised in the way that you propose * * * because that does not appear on the face of the indictment.' (App. 49.) The District Court later amplified this conclusion by saying:

'Point 2 is plainly premature because nobody can test the issue as to whether defendant reasonably believes the government's military involvement in Vietnam is illegal without knowing what he reasonably believed, and what he believed is a question of evidence and not a question which appears on the face of the indictment.' (App. 52.) (Emphasis supplied.)

Defense counsel did not dispute the District Court's analysis, and noted that he had raised the issue in his motion to dismiss only 'in the interest of economy,' because '(i)t was not clear at the time I filed the motion that the government would challenge this fact.' (App. 52.) The court expressed doubts concerning the Government's willingness to concede this fact, and, when asked by the court, the government counsel specifically stated his opposition to the motion to dismiss. The Court thereupon found the 'second ground' of the motion to dismiss without merit.

A short time after this hearing, the District Court issued two written opinions, 294 F.Supp. 511 and 515 (1968), that denied the other grounds of the motion to dismiss. After determining that appellee had the requisite standing to raise the issues involved, the court held that the political question doctrine foreclosed consideration of whether Congress could constitutionally draft for an undeclared was, or could order Sisson to fight in the allegedly 'genocidal war.'

An order accompanying the second pretrial opinion also dealt with various offers of proof that defense counsel had made in an informal letter to the court, not part of the record. From the order it appears that appellee's counsel stated he would 'offer evidence to show that (Sisson) properly refused to be inducted on the basis of his right of conscience, both statutory and constitutional.' Not understanding the scope of this rather ambiguous offer of proof, the District Court in its order ruled that if Sisson wished to make a conscientious objector claim based on religious objections not to wars in general but to the Vietnam war in particular, Sisson should make his offer of proof initially to the judge

'to elicit a ruling whether the First Amendment precludes the Congress from requiring one who has religious conscientious objections to the Vietnam war to respond to the induction order he received. If the Court rules favorably to defendant on the Constitutional issue of law, then both defense and prosecution are entitled to submit to the trier of fact evidence relevant to the question whether defendant indeed is a religious conscientious objector to the Vietnam war.' 294 F.Supp., at 519.

At the trial, however, it appears that defense counsel did not try to prove that Sisson should have received a conscientious objector exemption, nor did he request a ruling on the First Amendment issues referred to by the trial court. Instead it seems that the defense strategy was to prove that Sisson believed the Vietnam War to be illegal under domestic and international law, and that this belief was reasonable. If unable to get a direct adjudication of the legality of the war, the defense at least hoped to convince the jury that Sisson lacked the requisite intent to 'wilfully' refuse induction. ^[2]

There was evidence submitted at the trial that did bear on the conscientious objector issue, however. When asked why he had refused induction, Sisson emphasized that he thought the war illegal. He also said that he felt the Vietnam war was 'immoral,' 'illegal,' and 'unjust,' and went against 'my principles and my best sense of what was right.' The court asked Sisson what the basis for his conclusions was, particularly what Sisson meant when he said the war was immoral. Sisson said that the war violated his feelings about (1) respect for human life, (2) value of man's freedom, and (3) the scale of destruction and killing consonant with the stated purposes of American intervention. Sisson also stated, in response to the trial judge's question, that his 'moral values come from the same sources (the trial court had) mentioned, religious writings, philosophical beliefs.'

The prosecution did not allow Sisson's testimony to stand without cross-examination. In apparent reliance on the court's pretrial ruling that Sisson's beliefs concerning the war were irrelevant to the question of whether his refusal to submit to induction was wilful, ^[3] the government counsel concentrated on showing that Sisson had refused induction deliberately, of his own free will, and knowing the consequences. The prosecution also brought out that Sisson had failed to appeal his I-A classification when it had been issued, and that he had accepted, as an undergraduate, a II-S student classification.

In the final arguments to the jury, just as in the opening statements, neither counsel mentioned a religious or non-religious conscientious objector issue. The defense argued that the key to the case was whether Sisson had 'wilfully' refused to submit to induction, and tried to suggest his beliefs about the war were relevant to this. The government lawyer simply pointed out the operative facts of Sisson's refusal. He also attacked Sisson's sincerity by pointing out the inconsistency between Sisson's broad statements that he opposed deferments because they discriminated against the poor, see n. 2, supra, and his willingness to accept a II-S deferment while he was at Harvard College. (See App. 187-188.)

The instructions to the jury made no reference to a conscientious objector claim, and the jury was not asked to find whether Sisson was 'sincere' in his moral beliefs concerning the war. Instead the trial court told the jury that the crux of the case was whether Sisson's refusal to submit to induction was 'unlawfully, knowingly and wilfully' done. ^[4] The jury, after deliberating about 20 minutes, brought in a verdict of guilty.

After the trial, the defendant made a timely motion under Fed.Rule Crim.Proc. 34 to arrest the judgment on the ground that the District Court lacked jurisdiction. ^[5] Pointing to the fact that the District Court had ruled before the trial that the political question doctrine prevented its consideration of defenses requiring an adjudication of the legality of the Vietnam war, the defense argued that the court therefore lacked jurisdiction under Article III and the Due Process Clause to try the defendant for an offense to which the illegality of the war might provide a defense.

The District Court, in granting what it termed a motion in arrest of judgment, did not rule on the jurisdictional argument raised in the defense motion. Instead, the court ruled on what it termed defendant's 'older contention' ^[6] that the indictment did not charge an offense based on defendant's 'never-abandoned' Establishment, Free Exercise, and Due Process Clause arguments relating to conscientious objections to the Vietnam war.

The court first stated the facts of the case, in effect making findings essential to its decision. The opinion describes how Sisson's demeanor on the stand convinced the court of his sincerity. The court stated that 'Sisson's table of ultimate values is moral and ethical * * * (and) reflects quite as real, pervasive, durable, and commendable a marshalling of priorities as a formal religion.' The critical finding for what followed was that:

'What another derives from the discipline of a church, Sisson derives from the discipline of conscience.

'* * * Sisson bore the burden of proving by objective evidence that he was sincere. He was as genuinely and profoundly governed by his conscience as would have been a martyr obedient to an orthodox religion.' 297 F.Supp., at 905.

Building on these findings, the court first held that the Free Exercise and Due Process Clauses 'prohibit the application of the 1967 draft act to Sisson to require him to render combat service in Vietnam' because as a 'sincerely conscientious man,' Sisson's interest in not killing in the Vietnam conflict outweighed 'the country's present need for him to be so employed.' The District Court also ruled that § 6(j) of the Selective Service Act, 50 U.S.C. App. § 456(j) (1964 ed., Supp. IV), offends the Establishment Clause because it 'unconstitutionally discriminated against atheists, agnostics, and men, like Sisson, who, whether they be religious or not, are motivated in their objection to the draft by profound moral beliefs which constitute the central convictions of their beings.' 297 F.Supp., at 911.

The Government bases its claim that this Court has jurisdiction to review the District Court's decision exclusively on the 'arresting judgment' provision of the Criminal Appeals Act, 18 U.S.C. § 3731. ^[7] The relevant statutory language provides:

'An appeal may be taken by and on behalf of the United States from the district courts direct to the Supreme Court of the United States in all criminal cases in the following instances:

'From a decision arresting a judgment of conviction for insufficiency of the indictment or information, where such decision is based upon the invalidity or construction of the statute upon which the indictment or information is founded.'

Thus, three requirements must be met for this Court to have jurisdiction under this provision. First, the decision of the District Court must be one 'arresting a judgment of conviction.' Second, the arrest of judgment must be for the 'insufficiency of the indictment or information.' And third, the decision must be 'based upon the invalidity or construction of the statute upon which the indictment or information is founded.' ^[8]

Because the District Court's decision rests on facts not alleged in the indictment but instead inferred by the court from the evidence adduced at trial, we conclude that neither the first nor second requirement is met. ^[9]

* We begin with the first requirement: was the decision below one 'arresting a judgment of conviction'? In using that phrase in the Criminal Appeals Act, Congress did not, of course, invent a new procedural classification. Instead, Congress acted against a common-law background that gave the statutory phrase a well-defined and limited meaning. An arrest of judgment was the technical term describing the act of a trial judge refusing to enter judgment on the verdict because of an error appearing on the face of the record that rendered the judgment invalid. 3 W. Blackstone, Commentaries *393; 3 H. Stephen, New Commentaries on the Laws of England 628 (1st Am. ed. 1845); 2 J. Bishop, New Criminal Procedure § 1285 (2d ed. 1913).

For the purpose of this case the critical requirement is that a judgment can be arrested only on the basis of error appearing on the 'face of the record,' and not on the basis of proof offered at trial. ^[10] This requirement can be found in early English common-law cases. In Sutton v. Bishop, 4 Burr. 2283, 2287, 98 Eng.Rep. 191, 193 (K.B. 1769), it was stated: '(T)he Court ought not to arrest judgments upon matters not appearing upon the face of the record; but are to judge upon the record itself.' Once transported to the United States, ^[11] this essential limitation of arrests of judgment was explicitly acknowledged by this Court. In United States v. Klintock, 5 Wheat. 144, 149, 5 L.Ed. 55 (1820), the Court stated that 'judgment can be arrested only for errors apparent on the record.' And later in Bond v. Dustin, 112 U.S. 604, 5 S.Ct. 296, 28 L.Ed. 835 (1884), the Court said, '(A) motion in arrest of judgment can only be maintained for a defect apparent upon the face of the record, and the evidence is no part of the record for this purpose,' id., at 608, 5 S.Ct., at 298. See Carter v. Bennett, 15 How. 354, 356-357, 14 L.Ed. 727 (1854); United States v. Norris, 281 U.S. 619, 50 S.Ct. 424, 74 L.Ed. 1076 (1930).

This venerable requirement of the common law has been preserved under the Federal Rules of Criminal Procedure, for the courts have uniformly held that in granting a motion in arrest of judgment under Rule 34, ^[12] a district court must not look beyond the face of the record. E.g., United States v. Zisblatt, 172 F.2d 740 (C.A.2d Cir.), appeal dismissed on Government's motion, 336 U.S. 934, 69 S.Ct. 750, 93 L.Ed. 1093 (1949); United States v. Lias, 173 F.2d 685 (C.A.4th Cir. 1949); United States v. Bradford, 194 F.2d 197 (C.A.2d Cir. 1952). See 2 C. Wright, Federal Practice and Procedure § 571 (1969); 5 L. Orfield, Criminal Procedure Under the Federal Rules § 34:7 (1967). Therefore, whether we interpret the statutory phrase 'decision arresting a judgment' as speaking 'to the law, as it then was (in 1907) * * * as it had come down from the past,' ^[13] or do no more than interpret it as simply imposing the standards of Fed.Rule Crim.Proc. 34, ^[14] a decision based on evidence adduced at trial cannot be one arresting judgment. ^[15]

The court below clearly went beyond the 'face of the record' in reaching its decision. As noted earlier, the opinion explicitly relies upon the evidence adduced at the trial, including demeanor evidence, for its findings that Sisson was 'sincere' and that he was 'as genuinely and profoundly governed by his conscience' as a religious conscientious objector.

To avoid the inescapable conclusion that the District Court's opinion was not an arrest of judgment, the Government makes two arguments. First, the Government suggests that these factual findings of the District Court, based on the evidence presented at trial, were not essential to its constitutional rulings, but instead only part of 'the circumstantial framework' of the opinion below. (Jurisdictional Statement 9; see Brief 8.) This cannot withstand analysis, however, for the factual findings were absolutely essential, under the District Court's own legal theory, to its disposition of the case. Without a finding that Sisson was sincerely and fundamentally opposed to participation in the Vietnam conflict, the District Court could not have ruled that under the Due Process and Free Exercise Clauses Sisson's interest in not serving in Vietnam outweighed the Government's need to draft him for such service. ^[16]

Second, the Government argues that even though the District Court made findings on evidence adduced at trial, the facts relied on were 'undisputed.' Adopting the language used by the court below, the Government claims that 'in substance the case arises upon an agreed statement of facts.' 297 F.Supp., at 904. The Government then goes on the argue that decisions of this Court have 'recognized that a stipulation of facts by the parties in a criminal case' can be relied on by the District Court without affecting the jurisdiction for an appeal, citing United States v. Halseth, 342 U.S. 277, 72 S.Ct. 275, 96 L.Ed. 308 (1952), and United States v. Fruehauf, 365 U.S. 146, 81 S.Ct. 547, 5 L.Ed.2d 476 (1961). The Government then concludes that it would be exalting form over substance to hold there was no appeal in a case where the Government has not contested the facts, and yet allow an appeal to lie from a motion to dismiss resting upon a stipulation of the parties.

Preliminarily, it should be noted that this Court has never held that an appeal lies from a decision which depends, not upon the sufficiency of the indictment alone, but also on a stipulation of the parties. In Halseth the parties did enter into a stipulation for purposes of a motion to dismiss. But the facts in the stipulation were irrelevant to the legal issue of whether the federal anti-lottery statute reached a game not yet in existence. Therefore, neither the District Court in dismissing the indictment, nor this Court in affirming its decision, had to rely on the stipulation. And, for purposes of deciding whether jurisdiction for an appeal under § 3731 existed, the Court obviously did not have to decide-and it did not discuss-whether reliance on a stipulation would make any difference. Insofar as United States v. Fruehauf, supra, the other case cited by the Government, is relevant at all it seems to point away from the Government's contention. In Fruehauf this Court refused to consider the merits of an appeal under § 3731 from a District Court decision dismissing an indictment on the basis of a "judicial admission' culled from a pretrial memorandum' of the Government by the District Judge. Rather than penalizing The Government by dismissing the appeal, however, the Court simply exercised its discretion under 28 U.S.C. § 2106 by setting aside the ruling below, and remanding the case for a new trial on the existing indictment.

Not only do the cases cited by the Government fail to establish its contention, but other authority points strongly in the opposite direction. In United States v. Norris, 281 U.S. 619, 50 S.Ct. 424, 74 L.Ed. 1076 (1930), this Court said that a 'stipulation was ineffective to import an issue as to the sufficiency of the indictment, or an issue of fact upon the question of guilt or innocence,' because of 'the rule that nothing can be added to an indictment without the concurrence of the grand jury,' id., at 622, 50 S.Ct., at 425. While it is true that Norris is complicated by the fact that the defendant had entered a guilty plea, the Court said that even '(i)f (the stipulation had been) filed before plea and (had been) given effect, such a stipulation would oust the jurisdiction of the court.' id., at 622-623, 50 S.Ct. at 425. Norris, together with the policy, often expressed by this Court, that the Criminal Appeals Act should be strictly construed against the Government's right to appeal, see, e.g., United States v. Borden Co., 308 U.S. 188, 192, 60 S.Ct. 182, 185, 84 L.Ed. 181 (1939), makes it at least very doubtful whether the parties should, on the basis of a stipulation, be able to secure review under the motion-in-arrest provisions of § 3731.

We do not decide that issue, however, for there was nothing even approaching a stipulation here. Before the court's final ruling below, the parties did not in any way, formally or informally, agree on the factual findings made in its opinion. It is relevant to recall that before the trial the government attorney specifically refused to stipulate whether Sisson sincerely believed the war to be illegal, and, if so, whether such a belief was reasonable. Moreover, given that the government attorney cross-examined Sisson, and later pointed out the inconsistency between Sisson's acceptance of a II-S student deferment and his claim that he disapproved of deferments as unfair, it hardly seems the Government accepted Sisson's sincerity insofar as it was an issue in the case. Therefore, far from being like a case with a formal stipulation between the parties, the most that can be said is that after the District Court's decision the Government chose to accept the opinion's findings of fact. Even assuming reliance on a formal stipulation were permissible, it would still be intolerable to allow direct review whenever the District Court labels its decision a motion in arrest, and the Government merely accepts the lower court's factual findings made after a trial-for this would mean the parties and the lower court simply could foist jurisdiction upon this Court.

The second statutory requirement, that the decision arresting judgment be 'for insufficiency of the indictment,' is also not met in this case. Senator Nelson, one of the sponsors of the Criminal Appeals Act, made it plain during the debates that this second element was an important limitation. He said:

'The arrest of judgment * * * on which an appeal lies, is not a general motion covering all the grounds on which a judgment may be arrested. It is simply for arrest of judgment because of the insufficiency of the indictment-that is, the failure of the indictment to charge a criminal offense.' 41 Cong.Rec. 2756. (Emphasis supplied.)

See also 40 Cong.Rec. 9033. Although the District Court's opinion recites as a conclusion that the indictment in this case did 'not charge an offense' for purposes of Rule 34, surely the indictment alleged the necessary elements of an offense. ^[17] The decision below rests on affirmative defenses which the court thought Sisson could claim because of his beliefs. It has never been thought that an indictment, in order to be sufficient, need anticipate affirmative defenses, United States v. Fargas, 267 F.Supp. 452, 455 (D.C.S.D.N.Y.1967) 'Any questions as to the validity of the local board's refusal to grant conscientious objector exemption are matters of defense * * * (that) (t)here is no necessity for the indictment to negate * * *'. Moreover, even assuming, arguendo, the correctness of the District Court's constitutional theory that sincere nonreligious objectors to particular wars have a constitutional privilege that bars conviction, the facts essential to Sisson's claim of this privilege do not appear from any recitals in the indictment. As the District Court itself said before trial, '(W)hat (Sisson) believed is a question of evidence and not a question which appears on the face of the indictment.' (App. 52.) In short, this indictment cannot be taken as insufficient for, on the one hand, it recites the necessary elements of an offense, and on the other hand, it does not allege facts that themselves demonstrate the availability of a constitutional privilege.

The same reason underlying our conclusion that this was not a decision arresting judgment-i.e., that the disposition is bottomed on factual conclusions not found in the indictment but instead made on the basis of evidence adduced at the trial-convinces us that the decision was in fact an acquittal rendered by the trial court after the jury's verdict of guilty.

For purposes of analysis it is helpful to compare this case to one in which a jury was instructed as follows:

'If you find defendant Sisson to be sincere, and if you find that he was as genuinely and profoundly governed by conscience as a martyr obedient to an orthodox religion, you must acquit him because the government's interest in having him serve in Vietnam is outweighed by his interest in obeying the dictates of his conscience. On the other hand, if you do not so find, you must convict if you find that petitioner did wilfully refuse induction.'

If a jury had been so instructed, there can be no doubt that its verdict of acquittal could not be appealed under § 3731 no matter how erroneous the constitutional theory underlying the instructions. As Senator Knox said of the bill that was to become the Criminal Appeals Act:

'Mark this: It is not proposed to give the Government any appeal under any circumstances when the defendant is acquitted for any error whatever committed by the court.

'The Government takes the risks of all the mistakes of its prosecuting officers and of the trial judge in the trial, and it is only proposed to give it an appeal upon questions of law raised by the defendant to defeat the trial and if it defeats the trial.

'The defendant gets the benefit of all errors in the trial which are in his favor, and can challenge all errors in the trial which are against him.' 41 Cong.Rec. 2752.

Quite apart from the statute, it is, of course, well settled that an acquittal can 'not be reviewed, on error or otherwise, without putting (the defendant) twice in jeopardy, and thereby violating the constitution. * * * (I)n this country a verdict of acquittal, although not followed by any judgment, is a bar to a subsequent prosecution for the same offence,' United States v. Ball, 163 U.S. 662, 671, 16 S.Ct. 1192, 1195, 41 L.Ed. 300 (1896). ^[18]

There are three differences between the hypothetical case just suggested and the case at hand. First, in this case it was the judge-not the jury-who made the factual determinations. This difference alone does not support a legal distinction, however, for judges, like juries, can acquit defendants, see Fed.Rule Crim.Proc. 29. Second, the judge in this case made his decision after the jury had brought in a verdict of guilty. Rules 29(b) and (c) of the Federal Rules of Criminal Procedure, however, expressly allow, a federal judge to acquit a criminal defendant after the jury 'returns a verdict of guilty.' And third, in this case the District Judge labeled his post-verdict opinion an arrest of judgment, not an acquittal. This characterization alone, however, neither confers jurisdiction on this Court, see n. 7, supra, nor makes the opinion any less dependent upon evidence adduced at the trial. In short, we see no distinction between what the court below did, and a post-verdict directed acquittal. ^[19]

The dissenting opinions of both THE CHIEF JUSTICE and Mr. Justice WHITE suggest that we are too niggardly in our interpretation of the Criminal Appeals Act, and each contends that the Act should be more broadly construed to give effect to an underlying policy that is said to favor review. This Court has frequently stated that the 'exceptional right of appeal given to the Government by the Criminal Appeals Act is strictly

limited to the instances specified,' United States v. Borden Co., 308 U.S. 188, 192, 60 S.Ct. 182, 185, 84 L.Ed. 181 (1939), and that such appeals 'are something unusual, exceptional, not favored,' Carroll v. United States, 354 U.S. 394, 400, 7 S.Ct. 1332, 1335-1336, 1 L.Ed.2d 1442 (1957); see United States v. Keitel, 211 U.S. 370, 399, 29 S.Ct. 123, 132, 53 L.Ed. 230 (1908); United States v. Dickinson, 213 U.S. 92, 103, 29 S.Ct. 485 488, 53 L.Ed. 711 (1909); cf. Will v. United States, 389 U.S. 90, 96, 88 S.Ct. 269, 274, 19 L.Ed.2d 305 (1967). The approach suggested by our Brothers seems inconsistent with these notions. Moreover, the background and legislative history of the Criminal Appeals Act demonstrate the compromise origins of the Act that justify the principle of strict construction this Court has always said should be placed on its provisions. Because the Criminal Appeals Act, now 18 U.S.C. § 3731 (1964 ed., Supp. IV), ^[20] has descended unchanged in substance from the original Criminal Appeals Act, which was enacted on March 2, 1907, 34 Stat. 1246, ^[21] the crucial focus for this inquiry must be the legislative history of the 1907 Act. ^[22]

* Beginning in 1892-15 years before the enactment of the Criminal Appeals Act-the Attorneys General of the United States regularly recommended passage of legislation allowing the Government to appeal in criminal cases. ^[23] Their primary purpose was perhaps best expressed by Attorney General Miller in his 1892 report: 'As the law now stands * * * it is in the power of a single district judge, by quashing an indictment, to defeat any criminal prosecution instituted by the Government.' ^[24] There was no progress, however, until President Theodore Roosevelt, outraged by a decision of Judge Humphrey preventing the prosecution of the Beef Trust, ^[25] made this proposed reform into a 'major political issue,' ^[26] and demanded the enactment of legislation in his 1906 annual message to Congress. ^[27]

The House, as one commentator has written, 'was obedient to the presidential command.' ^[28] It passed, without debate, ^[29] a very broad bill giving the Government the same right to appeal legal issues decided adversely to it as had earlier been accorded a criminal defendant. ^[30] The Senate would not accept any such sweeping change of the traditional common-law rule giving the Government no appeal at all. The substitute bill that the Senate Judiciary Committee reported out ^[31] narrowed the House bill substantially, and limited the Government's right to appeal to writs of error from decisions (1) quashing an indictment or sustaining a demurrer to an indictment; (2) arresting judgment of conviction because of the insufficiency of the indictment; and (3) sustaining special pleas in bar when the defendant had not been put in jeopardy. Even as narrowed, the bill met opposition on the floor, ^[32] and the session closed without Senate action. ^[33]

The next session, after the bill was again reported out of the Senate Judiciary Committee, ^[34] it was debated for three days on the floor and again met strong opposition. ^[35] Reflecting the deep concern that the legislation not jeopardize interests of defendants whose cases were appealed by the Government, amendments were adopted requiring the Government to appeal within 30 days and to prosecute its cases with diligence; ^[36] and allowing defendants whose cases were appealed to be released on their own recognizance in the discretion of the presiding judge. ^[37] Various Senators were particularly concerned lest there be any possibility that a defendant who had already been through one trial be subjected to another trial after a successful appeal by the Government. ^[38] In response to this concern, an amendment was then adopted requiring that a verdict in favor of the defendant not be set aside on appeal ^[39] no matter how erroneous the legal theory upon which it might be based. ^[40] For these purposes, it was made plain that it made no difference whether the verdict be the result of the jury's decision or that of the judge. ^[41] Moreover, as we explore in more detail later, the debates suggest that apart from decisions arresting judgment, there were to be no appeals taken in any case in which jeopardy had attached by the impaneling of the jury. ^[42] Finally, to limit further the scope of the Act to cases of public importance, the Government's right to appeal (under all but the special plea in bar provision) was confined to cases in which the ground of the District Court's decision was the 'invalidity or construction of the statute upon which the indictment is founded.' ^[43]

With all these amendments the Senate passed the bill without division on February 13, 1907, ^[44] but the House, after referring the Senate's version to its Judiciary Committee, ^[45] disagreed with the Senate bill and proposed a conference. ^[46] The conference committee, apart from divesting the courts of appeals of jurisdiction to hear any government appeals, adopted the Senate version of the bill with merely formal changes. ^[47] Both the Senate and the House approved the bill reported out by the committee, ^[48] and with the President's signature the Criminal Appeals Act became law.

With this perspective, we now examine the arguments made in opposition to our conclusion. It is argued in dissent that § 3731 'contemplates that an arrest of judgment is appropriate in other than a closed category of cases defined by legal history,' and concludes that 'evidence adduced at trial can be considered by a district court as the basis for a motion in arrest of judgment when that evidence is used solely for the purpose of testing the constitutionality of the charging statute as applied,' post, at 314 (dissenting opinion of THE CHIEF JUSTICE).

The dissenters propose in effect to create a new procedure label it a decision arresting judgment-in order to conclude that this Court has jurisdiction to hear this appeal by the Government. The statutory phrase 'decision arresting a judgment' is not an empty vessel into which this Court is free to pour a vintage that we think better suits present-day tastes. As we have shown, Congress defined our jurisdiction in the Criminal Appeals Act in terms of procedures existing in 1907. As a matter of interpretation, this Court has no right to give the statutory language a meaning inconsistent with its common-law antecedents, and alien to the limitations that today govern motions in arrest of judgment under Rule 34. ^[49]

Radical reinterpretations of the statutory phrase 'decision arresting a judgment' are said to be necessary in order to effectuate a broad policy, found to be underlying the Criminal Appeals Act, that this Court review important legal issues. The axiom that courts should endeavor to give statutory language that meaning that nurtures the policies underlying legislation is one that guides us when circumstances not plainly covered by the terms of a statute are subsumed by the underlying policies to which Congress was committed. Care must be taken, however, to respect the limits up to which Congress was prepared to enact a particular policy, especially when the boundaries of a statute are drawn as a compromise resulting from the countervailing pressures of other policies. Our disagreeing Brothers, in seeking to energize the congressional commitment to review, ignore the subtlety of the compromise that limited our jurisdiction, thereby garnering the votes necessary to enact the Criminal Appeals Act. ^[50]

In this regard, the legislative history reveals a strong current of congressional solicitude for the plight of a criminal defendant exposed to additional expense and anxiety by a government appeal and the incumbent possibility of multiple trials. Criminal appeals by the Government 'always threaten to offend the policies behind the double-jeopardy prohibition,' Will v. United States, supra, 389 U.S. at 96, 88 S.Ct. at 274, even in circumstances where the Constitution itself does not bar retrial. Out of a collision between this policy concern, and the competing policy favoring review, Congress enacted a bill that fully satisfied neither the Government nor the bill's opponents. ^[51] For the Criminal Appeals Act, thus born of compromise, manifested a congressional policy to provide review in certain instances but no less a congressional policy to restrict it to the enumerated circumstances.

Were we to throw overboard the ballast provided by the statute's language and legislative history, we would cast ourselves adrift, blind to the risks of collision with other policies that are the buoys marking the safely navigable zone of our jurisdiction. As we have shown, what the District Court did in this case cannot be distinguished from a post-verdict acquittal entered on the ground that the Government did not present evidence sufficient to prove that Sisson was insincere. A primary concern of the bill that emerged into law was that no appeal be taken by the Government from an acquittal no matter how erroneous the legal theory underlying the decision. Moreover, going beyond the present case, the theory of those in disagreement would allow a trial judge to reserve to himself the resolution of disputes concerning facts underlying a claim that in particular circumstances a speech or protest march were privileged under the First Amendment, a practice plainly inconsistent with a criminal defendant's jury trial rights.

Quite apart from the arresting judgment provision, it is also argued that we have jurisdiction under the 'motion in bar' provision of the Criminal Appeals Act. We think it appropriate to address ourselves to this contention, particularly in light of the fact that we asked the parties to brief that issue, ^[52] even though our holding that the decision below was an acquittal is sufficient to dispose of the case.

The case law under the motion-in-bar provision is very confused, ^[53] and this Court has not settled on a general approach to be taken in interpreting this provision. ^[54] Even under the most expansive view, however, a motion in bar cannot be granted on the basis of facts that would necessarily be tried with the general issue in the case. ^[55] In this case, there can be no doubt that the District Court based its findings on evidence presented in the trial of the general issue. As we have shown earlier, the court's findings were based on Sisson's testimony and demeanor at the trial itself. Moreover, a defense based on Sisson's asserted constitutional privilege not to be required to fight in a particular war would, we think, necessarily be part of the 'general issue' of a suit over a registrant's refusal to submit to induction. As THE CHIEF JUSTICE says in his dissenting opinion, 'establishing the appropriate classification is actually an element of the Government's case,' post, at 324, once a defendant raises a defense challenging it. We think a defense to a pre-induction suit based on conscientious objections that require factual determinations is so intertwined with the general issue that it must be tried with the general issue, United States v. Fargas, D.C., 267 F.Supp. 452, 455 (1967) (pretrial motion to dismiss under Rule 12(b)(1) on the basis of an affidavit, denied because 'the validity of the (conscientious objector) defense which Fargas now raises * * * will require the consideration of factual questions which are embraced in the general issue'); see United States v. Ramos, 413 F.2d 743, 744 n. 1 (C.A.1st Cir. 1969) (evidentiary hearing for pretrial motion to dismiss indictment not appropriate means to consider validity of defense based on conscientious objection because '(q)uestions regarding the validity of appellant's classification should have been raised as a defense at the trial,' citing Fargas with approval). ^[56]

There is, in our view, still another reason no appeal can lie in this case under the motion-in-bar provision. We construe the Criminal Appeals Act as confining the Government's right to appeal-except for motions in arrest of judgment-to situations in which a jury has not been impaneled, even though there are cases in which a defendant might constitutionally be retried if appeals were allowed after jeopardy had attached. Because the court below rendered its decision here after the trial began, and because that decision was not, as we have shown, an arrest of judgment, we therefore conclude there can be no appeal under the other provisions of § 3731.

We reach this conclusion for several reasons. First, although the legislative history is far from clear, we think it was the congressional expectation that except for motions in arrest-which as we have shown could never be based on evidence adduced at trial the rulings to which the bill related would occur before the trial began. ^[57] The language of the motion-in-bar provision itself limits appeals to those granted 'when the defendant has not been put in jeopardy.' We read that limitation to mean exactly what it says-i.e., no appeal from a motion in bar is to be granted after jeopardy attaches. Although the legislative history shows much disagreement and confusion concerning the meaning of the constitutional prohibition against subjecting a defendant to double jeopardy ^[58] there was little dispute over the then-settled notion that a defendant was put into jeopardy once the jury was sworn. ^[59] To read this limitation as no more than a restatement of the constitutional prohibition, as suggested by Mr. Justice WHITE, renders it completely superfluous. No Senator thought that Congress had the power under the Constitution to provide for an appeal in circumstances in which that would violate the Constitution. ^[60]

Our conclusion draws strength from the fact that the Government itself has placed exactly this same interpretation on the Act. The Department of Justice, the agency for whose benefit the original bill was enacted, first placed this construction on the statute shortly after the bill was enacted, and has consistently abided by it in the more than 60 years that have since passed. As the Solicitor General stated in his brief:

'The Department of Justice has consistently taken the view that the plea in bar section limits the government's right of appeal to the granting of such pleas before a jury has been sworn. Soon after passage of the original Act, the 1907 Report of the Attorney General urged that the omission in the Act of a governmental right to appeal from post-jeopardy rulings be remedied by revising the Act so as to require counsel for the defendant to raise and argue questions of law prior to the time when jeopardy attached,' Brief 17.

Later, after describing the opinion in Zisblatt, supra, in which the Second Circuit certified an appeal to this Court to determine whether the phrase 'not been put in jeopardy' merely incorporated the constitutional limitation, or instead should be taken literally, the Government's brief states:

'The then Solicitor General, being of the view that the statute barred appeals from the granting of motions in bar after jeopardy had attached, moved to dismiss the appeal, and the appeal was dismissed (336 U.S. 934 (69 S.Ct. 750, 93 L.Ed. 1093)). The Department of Justice has thereafter adhered to that position, and the government has never sought to appeal in these circumstances.' ^[61]

This interpretation in our view deserves great weight.

In light of (1) the compromise origins of the statute, (2) the concern with which some Senators viewed the retrial of any defendant whose trial terminated after the jury was impaneled, and (3) the interpretation placed on the Act shortly after its passage ^[62] that has been consistently followed for more than 60 years by the Government, we think that the correct course is to construe the statute to provide a clear, easily administered test: except for decisions arresting judgment, there can be no government appeals from decisions rendered after the trial begins.

Clarity is to be desired in any statute, but in matters of jurisdiction it is especially important. Otherwise the courts and the parties must expend great energy, not on the merits of dispute settlement, but on simply deciding whether a court has the power to hear a case. When judged in these terms, the Criminal Appeals Act is a failure. Born of compromise, and reflecting no coherent allocation of appellate responsibility, ^[63] the Criminal Appeals Act proved a most unruly child that has not improved with age. The statute's roots are grounded in pleading distinctions that existed at common law but which, in most instances, fail to coincide with the procedural categories of the Federal Rules of Criminal Procedure. Not only does the statute create uncertainty by its requirement that one analyze the nature of the decision of the District Court in order to determine whether it falls within the class of common-law distinctions for which an appeal is authorized, ^[64] but it has also engendered confusion over the court to which an appealable decision should be brought. ^[65]

The Solicitor General, at oral argument in this case, forthrightly stated that 'there are few problems which occur so frequently or present such extreme technical difficulty in the Solicitor General's office (as) in the proper construction of the Criminal Appeals Act.' ^[66] We share his dissatisfaction with this statute. Nevertheless, until such time as Congress decides to amend the statute, this Court must abide by the limitations imposed by this awkward and ancient Act.

We conclude that the appeal in this case must be dismissed for lack of jurisdiction.

It is so ordered.

Appeal dismissed for lack of jurisdiction.

Notes

1. We have today granted certiorari in Gillette v. United States, 399 U.S. 925, 90 S.Ct. 2236, 26 L.Ed.2d 791, and Negre v. Larsen, 399 U.S. 925, 90 S.Ct. 2256, 26 L.Ed.2d 792, in order to consider the 'selective' conscientious objector issue that underlies the case now before us but which we cannot reach because of our conclusion that we have no jurisdiction to entertain this direct appeal.
2. Not only did the defense itself avoid advancing any theory or proof that Sisson deserved conscientious objector status, but there are even indications that the defense purposely attempted to keep the issue out of the case. For example, at one point in the trial the Marine officer who called Sisson for induction stated that Sisson had told him at the time that he was refusing induction because of religious belief, and his 'conscientious objector status.' (App. 143.) Later, when questioned by his own counsel, Sisson not only denied having the conversation with the officer but also stated that he had never applied for C.O. status (1) because he could not honestly claim 'conscientious objection to war in any form as it is put on the Form 150'; and (2) because he believed 'the system of exemptions and deferments (to be) unequal and (to discriminate) against those who do not have education * * * or money.' Sisson stated flatly that he therefore 'could not accept such deferment.' (App. 147-150.)
3. Among the various offers of proof made by Sisson's attorney before the trial was one to show that Sisson 'reasonably believed the Vietnam war to be illegal,' and that he therefore lacked the requisite intent to 'wilfully' refuse induction. In the pretrial order, the trial judge ruled that:
4. The key instruction was given as follows:
5. Defendant first submitted a motion in arrest of judgment March 26-five days after the trial. Two days later he substituted an amended motion in arrest 'in lieu of' his original motion. This first amended motion differed only in detail from the original. Both were based on the jurisdictional argument described in the text and neither made any claim based on the Establishment or Free Exercise Clause.
6. The District Court was apparently referring to Sisson's pretrial 'offer (of) evidence' with reference to Sisson's 'right of conscience.' See supra, at 273; 294 F.Supp., at 519. It does not appear that any contention based on Sisson's right of conscience was raised at trial, or made in the motion to arrest judgment, see supra, n. 5. Possibly in recognition of this, the District Court noted in its opinion that '(i)t would have been better practice' for Sisson's attorney to have made 'a more detailed reference' in his motion in arrest to his 'earlier' arguments. The court stated that '(n)o doubt, defendant will seasonably make his motion in arrest even clearer.' On April 3-two days after the District Court's decision-Sisson's attorney moved to amend his motion in arrest to make the requested grounds conform with those already stated in the opinion. The District Court granted this motion to amend nunc pro tunc as of April 1-the date of its opinion.
7. For the text, see n. 20, infra.
8. Although all three conditions must be met for the Government to appeal a case directly to this Court, as long as the first requirement is met the Government can appeal to a Court of Appeals under a separate provision of § 3731 allowing an appeal '(f)rom a decision arresting a judgment of conviction except where a direct appeal to the Supreme Court of the United States is provided. * * *'
9. It is arguable that the third requirement is not met since the District Court's decision was not 'based upon the invalidity or construction' of 50 U.S.App. § 462(a) (1964 ed., Supp. IV)-the statutory provision 'upon which the indictment * * * is founded.' As a matter of sound construction, however, 'statute upon which the indictment * * * is founded' should be read to include the entire statute, and not simply the penalty provisions. See United States v. Socony Mobil Oil Co., 252 F.2d 420 (C.A.1st Cir.), appeal dismissed per stipulation, 356 U.S. 925, 78 S.Ct. 712, 2 L.Ed.2d 757 (1958); cf. United States v. Mersky, 361 U.S. 431, 80 S.Ct. 459, 4 L.Ed.2d 423 (1960); see also Friedenthal, Government Appeals in Federal Criminal Cases, 12 Stan.L.Rev. 71, 75 (1959).
10. In early days the 'face of the record' simply included the material found on the 'judgment roll.' See United States v. Zisblatt, 172 F.2d, at 742. In a criminal case today it has been thought to include 'no more than the indictment, the plea, the verdict * * * and the sentence.' United States v. Bradford, 194 F.2d 197, 201 (C.A.2d Cir.), cert. denied, 343 U.S. 979, 72 S.Ct. 1079, 96 L.Ed. 1371 (1952).
11. This Court first recognized the existence of motions in arrest of judgment in United States v. Cantril, 4 Cranch 167, 2 L.Ed. 584 (1807).
12. Fed.Rule Crim.Proc. 34 provides:
13. United States v. Zisblatt, supra, 172 F.2d, at 742.
14. United States v. Lias, supra, 173 F.2d, at 687.
15. None of the cases relied on by the Government even hints that evidence presented at the trial can be the basis for a motion in arrest of judgment. In United States v. Green, 350 U.S. 415, 76 S.Ct. 522, 100 L.Ed. 494 (1956), there was no disagreement' between the majority and dissenters on the rule that direct review is impossible if the decision below is based upon facts arising from the trial. Instead the majority and dissent simply disagreed as to whether the District Court's decision had relied on evidence at the trial. Compare the majority opinion, 350 U.S., at 418 and 421, 76 S.Ct., at 524 and 526, with the dissent, 350 U.S., at 421, 76 S.Ct., at 526. In United States v. Bramblett, 348 U.S. 503, 75 S.Ct. 504, 99 L.Ed. 594 (1955), also cited by the Government, the indictment specified that the appellee had made a fraudulent claim against the Disbursing Office of the House of Representatives in violation of 18 U.S.C. § 1001 which forbids the willful falsification of any material statement 'in any matter within the jurisdiction of any department or agency of the United States.' The District Court arrested judgment on the ground that the House Disbursing Office was not a 'department or agency' for purposes of the statute, and on appeal this Court reversed. Neither the District Court nor this Court relied in any way upon the evidence submitted at the trial in determining the scope of the statutory phrase 'department or agency' found in 18 U.S.C. § 1001. Finally, the Government refers to United States v. Waters, 84 U.S.App.D.C. 127, 175 F.2d 340 (1948). In that case the District Court held an indictment did not charge an offense because it alleged only that the appellee was carrying a gun, and not that he was carrying a gun without a license. However, the District Court called its opinion the grant of a motion of acquittal. The United States appealed to the Court of Appeals which held that the decision was a motion in arrest, stating that th 'question of appealability' turned not on 'the name the (district) court gave (the decision) but by what in legal effect it actually was.' The Court of Appeals then certified the case to this Court, since it felt the motion in arrest involved an 'interpretation' of the underlying statute, but the appeal was dismissed on the motion of the United States, 335 U.S. 869, 69 S.Ct. 168, 93 L.Ed. 413 (1948).
16. The factual determinations would also appear essential for the District Court's alternative ground of decision based on the Establishment Clause. That holding rests necessarily upon the finding that Sisson, though nonreligious, 'was as genuinely and profoundly governed by his conscience as would have been a martyr obedient to an orthodox religion.' Without this finding, Sisson would have no standing to assert the underinclusiveness of § 6(j) of the Act as a defense to his prosecution. Whether factual determinations made only for purposes of deciding questions of standing, particularly if made before trial, would offend the requirements that motions in arrest must be based on errors on the face of the record is an issue inappropriate for decision in this case. Because of our determination that the District Court's free exercise holding was in effect an acquittal, there is no need to decide whether the alternative Establishment Clause ruling would be appealable if it stood alone.
17. Compare 50 U.S.C.App. § 462(a) (1964 ed., Supp. IV) with the allegations of the indictment:
18. This principle would dictate that after this jurisdictional dismissal, Sisson may not be retried.
19. Our conclusion does not, as suggested in dissent, post, at 327 (dissenting opinion of Mr. Justice WHITE), rest on the fact the District Court 'might have' sent the case to the jury on the instruction referred to in the text, but instead on what it did do i.e., render a legal determination on the basis of facts adduced at the trial relating to the general issue of the case, see, infra, at 301. Neither dissenting opinion explains what 'large and critical' difference, post, at 329, exists between its expansive notion of what constitutes a decision arresting judgment and a post-verdict acquittal entered by the judge after the jury has returned a verdict of guilty pursuant to Fed.Rule Crim.Proc. 29.
20. The statute provides, in pertinent part:
21. 34 Stat. 1246 provided in pertinent part:
22. Between 1907 and the present day, Congress has amended the Act several times. These include a 1948 amendment that brought the procedural vocabulary of the statute into formal conformity with the Federal Rules of Criminal Procedure, 62 Stat. 844. Although 'special plea in bar' thus became 'motion in bar,' and 'decision * * * quashing * * * or sustaining a demurrer to, any indictment' became 'decision * * * dismissing any indictment,' the Reviser's Notes plainly show that this amendment was not meant to change the Act's coverage, H.R.Rep. No. 304, 80th Cong., 1st Sess., A177; see United States v. Apex Distributing Co., 270 F.2d 747, 755 (C.A.9th Cir. 1959).
23. See the Attorney General's Annual Reports for 1892, pp. xxiv-xxv; for 1893, p. xxvi; for 1894, p. xxix; for 1899, p. 33; for 1900, p. 40; for 1903, p. vi; for 1905, p. 10; for 1906, p. 4. See generally Kurland, The Mersky Case and the Criminal Appeals Act: A Suggestion for Amendment of the Statute, 28 U.Chi.L.Rev. 419, 446-449 (1961); F. Frankfurter & J. Landis, The Business of the Supreme Court 114-117 (1928).
24. 1892 Rep.Atty.Gen. xxiv.
25. United States v. Armour & Co., 142 F. 808 (D.C.N.D.Ill.1906).
26. See Frankfurter & Landis, supra, n. 23, at 117; Kurland, supra, n. 23, at 449.
27. 41 Cong.Rec. 22.
28. Kurland, supra, n. 23, at 450.
29. 40 Cong.Rec. 5408.
30. The text of the House bill appears at 40 Cong.Rec. 5408. It gave the United States the same right of review by writ of error as was then accorded a criminal defendant, but further provided that if on appeal any error were found, the defendant should retain the advantage of any verdict in his favor. With neither debate nor a division, the bill passed the House on April 17, 1906. Ibid.
31. See S.Rep. No. 3922, 59th Cong., 1st Sess. (1906).
32. See 40 Cong.Rec. 9033.
33. Id., at 9122.
34. 41 Cong.Rec. 1865; S.Rep. No. 5650, 59th Cong., 2d Sess. (1907).
35. 41 Cong.Rec. 2190-2197; 2744-2763; 2818-2825.
36. Id., at 2194.
37. Id., at 2195-2197.
38. See id., at 2749-2762.
39. See id., at 2819.
40. See id., at 2752.
41. When asked whether the substance of his amendment was that there was to be no appeal and retrial after the defendant had been 'acquitted by the verdict of a jury,' the sponsor of the amendment, Senator Rayner, stated: 'I have in the amendment no such words as 'acquitted by the jury.' I have nothing to do with the jury. He may be acquitted by a magistrate * * *. I do not care by what tribunal he is acquitted * * *.' Id., at 2749.
42. See infra, at 302-307.
43. See 41 Cong.Rec., at 2822, 2823.
44. Id., at 2834.
45. Id., at 3044-3047.
46. Id., at 3647.
47. See H.R.Rep. No. 8113, 59th Cong., 2d Sess.
48. 41 Cong. Rec. 3994, 4128.
49. It appears that the dissenters have not only 'outgrown' the statutory limitations of a 'decision arresting a judgment' for purposes of § 3731, but also the limitations of Rule 34.
50. Professor Kurland characterized the statute as 'a compromise among several divergent forces. The division in the Senate was primarily between those who wanted limited review and those who wanted none. The division between the House and Senate was between those who wanted complete review and those who wanted limited review.' Kurland, supra, n. 23, at 454.
51. See, e.g., 1907 Rep.Atty.Gen. 4. See infra, at 306.
52. See 396 U.S. 812, 90 S.Ct. 92, 24 L.Ed.2d 65 (1969).
53. At common law, a special plea in bar was ordinarily used to raise three defenses-autrefois acquit, autrefois convict, and pardon-and there is language in some of our case that indicates that, apart from these defenses, a plea in bar was not appropriate 'to single out for determination in advance of trial matters of defense either on questions of law or fact,' United States v. Murdock, 284 U.S. 141, 151, 52 S.Ct. 63, 65, 76 L.Ed. 210 (1931). There are cases consistent with the narrow common-law definition that indicate, for example, that a defense based upon the statute of limitations could not be raised by a 'special plea in bar,' United States v. Kissel, 218 U.S. 601, 606, 31 S.Ct. 124, 125, 54 L.Ed. 1168 (1910); United States v. Barber, 219 U.S. 72, 78-79, 31 S.Ct. 209, 211-212, 55 L.Ed. 99 (1911). On the other hand, it appears the Court accepted jurisdiction under § 3731, in appeals from decisions granting special pleas in bar based on a statute of limitations defense, with no explanation of the apparent inconsistency. See United States v. Goldman, 277 U.S. 229, 236 237, 48 S.Ct. 486, 488, 72 L.Ed. 862 (1928); see also United States v. Rabinowich, 238 U.S. 78, 35 S.Ct. 682, 59 L.Ed. 1211 (1915). And, in United States v. Mersky, 361 U.S. 431, 80 S.Ct. 459, 4 L.Ed.2d 423 (1960), there was no decision of the Court on what was a motion in bar, and the concurring opinion of Mr. Justice Brennan and the dissenting opinion of Mr. Justice Stewart indicated disagreement on this issue. Compare 361 U.S., at 441 443, 80 S.Ct., at 465-466 with id., at 455-458, 80 S.Ct. at 472 474, To add to the uncertainty, arguably in United States v. Murdock, supra, and certainly in United States v. Blue, 384 U.S. 251, 253-254, 86 S.Ct. 1416, 1418-1419, 16 L.Ed.2d 510 (1966), and United States v. Covington, 395 U.S. 57, 59 n. 2, 89 S.Ct. 1559, 1560, 23 L.Ed.2d 94 (1969), the Court took jurisdiction and considered the merits of appeals from district court dismissals based on self-incrimination defenses on the ground that the decisions below had sustained motions in bar for purposes of the Criminal Appeals Act-even though Murdock itself stated that this defense is not appropriately raised by a special plea in bar. 284 U.S., at 151, 52 S.Ct., at 65.
54. In United States v. Mersky, 361 U.S. 431, 80 S.Ct. 459, 4 L.Ed.2d 423 (1960), there was no decision of the Court concerning what approach should be taken. Mr. Justice Brennan suggested that the category include any decision that barred reprosecution if upheld, id., at 441-443, 80 S.Ct., at 465-466, while Mr. Justice Stewart thought the provision should be confined to those decisions that would fall within the compass of the common law 'special plea in bar,' id., at 455-458, 80 S.Ct., at 472-474. See generally Kurland, supra, n. 23.
55. The dismissal provision of Fed.Rule Crim.Proc. 12, which Mr. Justice Brennan in his Mersky concurrence saw as having 'swept away the old pleas,' 361 U.S., at 442, 80 S.Ct., at 466, itself limits a dismissal to those defenses 'capable of determination without the trial of the general issue,' Fed.Rule Crim.Proc. 12(b)(1).
56. Nowhere does United States v. Covington, supra, suggest, as argued in dissent, that there might be jurisdiction under the motion-in-bar provision of § 3731 in circumstances where the parties 'tr(ied) facts to the judge that were relevant to the motion in bar, and separate from the general issue,' post, at 332 (dissenting opinion of Mr. Justice WHITE). Our Brother WHITE reaches this conclusion by taking a quotation from Covington out of context, and confusing that opinion's disposition of the merits of the Government's appeal with the Court's jurisdictional holding.
57. See 40 Cong.Rec. 9033. In this exchange, Senator Spooner said: 'I understand this (bill) applies only to questions which arise before the impaneling of the jury.' Senator Nelson agreed that the bill was so limited, and obviously thinking he was saying the same thing, said the bill applied only '(w)here the party has not been put in jeopardy.' After being reminded of the arrest-of-judgment provision, Senator Nelson acknowledged that this was an exception, but obviously trying to minimize the scope of the exception he pointed out that the only motions in arrest of judgment that could be appealed were those granted 'for insufficiency of indictment; not for any other ground.' Ibid.
58. See, e.g., 41 Cong.Rec. 2745-2763.
59. See, e.g., 40 Cong.Rec. 9033; 41 Cong.Rec. 2192; id., at 2751.
60. See 41 Cong.Rec. 2751 (Sen. Knox) ('(I)f I thought there was a single line, or a sentence, or a clause contained in this bill which by any court would be construed to place a man twice in jeopardy, I would vote to cut it out, not because there would be any necessity for cutting it out, as it would be invalid under the Constitution of the United States, but I would vote to cut it out upon the ground that it would not be an artistic and intelligent bill with such a provision within its borders.')
61. Brief 19. It should be noted that at the Government's request a proposed amendment to § 3731 has been introduced in Congress to remove this limitation. The proposed statute, which avoids common-law terminology, would allow an appeal from a decision made after the jury was sworn in all cases where the Double Jeopardy Clause would permit it. See H.R. 14588, 91st Cong., 1st Sess., 115 Cong.Rec. H10274 (daily ed. Oct. 29, 1969).
62. See 1907 Rep.Atty.Gen. 4; see also Hearing on Granting Appeals by the United States from Decisions Sustaining Motions to Suppress Evidence, before Subcommittee No. 2 of the House Committee on the Judiciary, 83 Cong., 2d Sess., ser. 15, p. 11 (1954).
63. Motions in bar, for example, can only be appealed to this Court irrespective of whether the case involves the validity or construction of a statute.
64. See supra, nn. 53-54.
65. See, e.g., United States v. Zisblatt, supra; United States v. Brodson, 234 F.2d 97 (C.A.7th Cir. 1956). See generally Friedenthal, supra, n. 9, at 83-88.
66. Tr. of Oral Arg. 11.