criminal, can set aside or modify their final judgments for errors of law; and even if it be assumed that in the case of errors in certain matters of fact, the district courts may exercise in criminal cases-as an incident to their powers expressly granted-a correctional jurisdiction at subsequent terms analogous to that exercised at common law on writs of error coram nobis (See Bishop, New Crim. Pro., 2d ed., § 1369), as to which we express no opinion, that authority would not reach the present case. This jurisdiction was of limited scope; the power of the court thus to vacate its judgments for errors of fact existed, as already stated, in those cases where the errors were of the most fundamental character, that is, such as rendered the proceeding itself irregular and invalid. In cases of prejudicial misconduct in the course of the trial, the misbehavior or partiality of jurors, and newly discovered evidence, as well as where it is sought to have the court in which the case was tried reconsider its rulings, the remedy is by a motion for a new trial (Jud. Code, § 269)an application which is addressed to the sound discretion of the trial court, and, in accordance with the established principles which have been repeatedly set forth in the decisions of this court above cited, cannot be entertained, in the absence of a different statutory rule, after the expiration of the term at which the judgment was entered.

State statutes relating to the granting of new trials are not applicable. As was said by this court in Bronson v. Schulten, supra,-"The question relates to the power of the courts and not to the mode of procedure. It is whether there exists in the court the authority to set aside, vacate, and modify its final judgments after the term at which they were rendered; and this authority can neither be conferred upon nor withheld from the courts of the United States by the statutes of a State or the practice of its courts." See, also, Ind. & St. L. R. R. Co. v. Horst, 93

U. S. 291, 301; Mo. Pac. Rwy. Co. v. C. & A. R. R. Co., 132 U. S. 191; Fishburn v. C., M. & St. P. Ry. Co., 137 U. S. 60; Fuller v. United States, 182 U. S. 562, 575; United States v. 1621 Pounds of Fur Clippings, 106 Fed. Rep. 161; City of Manning v. German Ins. Co., 107 Fed. Rep. 52.

2. As the District Court was without power to entertain the application, the consent of the United States attorney was unavailing. Cutler v. Rae, 7 How. 729, 731; Byers v. McAuley, 149 U. S. 608, 618; Minnesota v. Hitchcock, 185 U. S. 373, 382. It is argued, in substance, that while consent cannot give jurisdiction over the subject matter, restrictions as to place, time, etc., can be waived. Gracie v. Palmer, 8 Wheat. 699; Toland v. Sprague, 12 Pet. 300, 331; Ayers v. Watson, 113 U. S. 594, 598; Martin's Adm'r v. B. & O. R. R. Co., 151 U. S. 673, 688; Rexford v. Brunswick-Balke Co., 228 U. S. 339, 344, 345. This consideration is without pertinency here, for there was no general jurisdiction over the subject matter, and it is not a question of the waiver of mere 'modal or formal' requirements, of mere private right or personal privilege. In a Federal court of competent jurisdiction, final judgment of conviction had been entered and sentence had been imposed. The judgment was subject to review in the appellate court, but so far as the trial court was concerned it was a finality; the subsequent proceeding was, in effect, a new proceeding which by reason of its character invoked an authority not possessed. In these circumstances it would seem to be clear that the consent of the prosecuting officer could not alter the case; he was not a dispensing power to give or withhold jurisdiction. The established rule embodies the policy of the law that litigation be finally terminated, and when the matter is thus placed beyond the discretion of the court it is not confided to the discretion of the prosecutor.

3. We have no occasion to enter upon the broad in-

quiry suggested by the argument as to the authority of the Circuit Courts of Appeals to issue writs of prohibition. We have no doubt of the power to issue the writ in the case stated, and we need not discuss other cases supposed. Prior to the application for a new trial in the District Court, the defendant had sued out a writ of error and the appellate jurisdiction of the Circuit Court of Appeals had attached. Brooks v. Norris, 11 How. 204, 207; In re Chetwood, 165 U. S. 443, 456; Mutual Life Ins. Co. v. Phinney, 178 U. S. 327, 335; Old Nick Williams Co. v. United States, 215 U. S. 541, 543. Basing the argument upon the proposition that the Government had no right of review in the Circuit Court of Appeals in a criminal case, it is urged that the Government cannot be regarded as deprived of any relief which it is entitled to seek from that court, and hence that it cannot be said that the issue of the writ was necessary for the exercise of its jurisdiction. Jud. Code, § 262. But the case was actually pending in the Circuit Court of Appeals on the defendant's writ of error, and the Government had all the rights of a litigant in that court seeking to maintain a judgment assailed. It is said that the defendant could have procured the dismissal of his writ, but in fact the writ had not been dismissed. It is said, also, that the consent to the hearing by the District Court of the application for a new trial operated as a waiver of any rights the Government could have in the Circuit Court of Appeals. This conclusion is sought to be derived from the asserted efficacy of the consent in the lower court, and, as we have seen, it had no efficacy there, and it had no reference whatever to the proceedings in the higher court. The defendant was still insisting upon his rights as plaintiff in error in the Circuit Court of Appeals, and the United States, as the opposing party in that court, was entitled to its aid in order to preserve the integrity of the record and to prevent unauthorized action by the court below with respect to the judgment

Argument for the United States.

235 U. S.

under review. For this purpose, the writ of prohibition was the appropriate remedy.

We answer question I-A in the affirmative, and questions II and III in the negative. Question I-B involves an inquiry not raised by the case made and is not answered. It is so ordered.

MR. JUSTICE MCREYNOLDS took no part in the consideration and decision of this case.

UNITED STATES v. BARTLETT.

APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT.

No. 251. Argued October 22, 1914. Decided November 16, 1914. The act of May 27, 1908, c. 199, 35 Stat. 312, extending to April 26, 1931, the period of restriction upon the alienation of certain Indian allotments, contained an excepting clause declaring that "nothing herein shall be construed as imposing restrictions removed by or under any prior law;" held that restrictions which had been terminated by lapse of time as contemplated by the law imposing them were "removed from the land by or under" a prior law within the meaning of the excepting clause.

203 Fed. Rep. 410, affirmed.

THE facts, which involve the construction of the act of May 27, 1908, extending restrictions on alienation of Indian allotments, are stated in the opinion.

Mr. Assistant Attorney General Knaebel, with whom Mr. S. W. Williams was on the brief, for the United States: By the act of May 27, 1908, Congress meant to provide against the alienation, prior to April 26, 1931, of any allotment then held by any member of any of the Five Civilized Tribes of full or three-quarters Indian blood,

235 U. S.

Argument for the United States.

excepting only such allotments as had been or as might thereafter be specifically relieved of restrictions, by the action of the Secretary of the Interior or of Congress itself.

The act of May 27, 1908, should be construed, in pari materia with other acts which will be cited, as the expression of a definite policy to abolish the divergencies and remedy the defects of the various agreements under which the allotments in the Five Civilized Tribes had been made, by classifying all the allotments, irrespective of tribe, according to the degree of the presumed natural competency of the allottees, standardized arbitrarily in accordance with their respective proportions of Indian blood; and by relieving the restraints altogether as to those thus classified as competent, and by forbidding conveyances by those thus classified as incompetent prior to April 26, 1931.

Both the spirit and the letter of the act of May 27, 1908, demand that all the lands of the three-quarter blood Indians be held restricted until April 26, 1931, irrespective of the prior restrictions.

That part of the first section of the act of May 27, 1908, which declares that the act shall not be construed "to impose restrictions removed from land by or under any law prior to the passage of this act," refers only to those cases in which restrictions have been removed by the direct action of Congress or by the Secretary of the Interior from particular allotments.

The opposite construction would render this clause repugnant to the plain terms classifying three-quarter bloods as incompetent in respect of all of their land and to the fundamental purpose of the statute to protect the incompetent Indians.

The clause may readily be construed in avoidance of this result and in harmony with the statute as a whole by confining it to the special cases above mentioned.

If doubt exists, this construction should be adopted as the more beneficial to the Indians.