William J. Brennan, Jr.

“ It is certainly not fictional to attribute to the preponderant profession represented in Congress knowledge of the elementary difference between statutes, conventionally speaking, and regulations authorized by statutes. Nor is this a formal or minor distinction. It is one thing to strike down a statute, or to eviscerate its meaning; it is quite another thing to construe a regulation adversely to the Government's desire. Legislation is complicated and cumber-some business. Correction of erroneous statutory construction, let alone invalidation of laws, is a difficult, even a hazardous process. ”

“ The presence in the Criminal Appeals Act of 1907 of the provision for an appeal by the Government from decisions or judgments sustaining a 'special plea in bar' when the defendant has not been put in jeopardy, has an historical explanation and its scope presents a different problem of statutory construction than that of giving meaning to 'statute.' Barring stimulation by this Court, Congress seldom initiates judiciary legislation except when a dramatic case stirs public interest. ”

“ The immediately relevant ambiguity of 'statute' as a legal term derives from the fact that it may mean either the enactment of a legislature, technically speaking, that is the Congress of the United States or the respective legislatures of the fifty States; or it may have a more comprehensive scope, to wit, rules of conduct legally emitted by subordinate lawmaking agencies such as city councils or the various regulation-emitting bodies of the federal and state governments. ”

“ The statute of limitations had run at the time of the dismissal so that a new indictment could not be found. But the nature of the Court's action itself was not to exculpate the defendant, as the opinion explained: ' (It) cannot be that a plea filed a week earlier is what it purports to be, and in its character is, but a week later becomes a plea in bar because of the extrinsic circumstance that the statute of limitations has run. The plea looks only to abating the indictment not to barring the action. It has no greater effect in any circumstances. ”

“ This concept of a special plea in bar as a plea similar in substance to confession and avoidance has been consistently followed in the decisions of this Court. The cases in which jurisdiction has been accepted on the ground that the decision below sustained a special plea in bar have invariably involved District Court decisions upholding an affirmative defense in the nature of a confession and avoidance. ”

“ The existence of such an overlap hardly would militate seriously against the construction of the statute espoused here and in Hark, Murdock and Storrs; where Congress has decided to make two categories of cases appealable to this Court, it is not a valuable guide to construction to assume that congressional intent would be offended if some cases were appealable as belonging to both categories. ”

“ The Clarke substitute, passed by the Senate (41 Cong.Rec. 2825) , was substantially adopted in its relevant aspects by the House (see H.R.Rep. No. 8113, 59th Cong., 2d Sess.) and eventually became the Act of 1907. ”

“ Hark, 320 U.S. 531, 64 S.Ct. 359, 88 L.Ed. 290, upon whose generalized language the Court of Appeals and my Brother BRENNAN here so heavily rely, did not cite Storrs. To the extent that the two opinions reflect divergent approaches, Storrs seems the more carefully considered and I would follow it.↑ See, e.g., United States v. Celestine, 215 U.S. 278, 30 S.Ct. 93, 54 L.Ed. 195 (motion alleging special facts which showed that defendant was not subject to prosecution by the United States for the crime charged) ; United States v. ”