statute had taken from the courts the right to proceed against the offender, leaving the violated law without its former remedy; but it had not obliterated the fact that the law forbade the act when it was done, or removed from the doer's mind his original consciousness of guilt. Simply the remedy had lapsed. And it has been adjudged, and never questioned, that, in circumstances precisely analogous, this sort of lapse can be repaired by a subsequent statute providing for a prosecution.1 Looking for judicial utterances to the point in terms, we find them to be few and both ways. In a Texas opinion, laying down the excellent rule that in the absence of express words a statute will not be construed as intended to revive criminal prosecutions already barred by a statute of limitations, the following dictum occurs: "The state, having neglected to prosecute within the time prescribed for its own action, lost the right to prosecute the suit. To give an act of the legislature, passed after such loss, the effect of reviving the right of action in the state, would give it an operation ex post facto, which we cannot suppose the legislature intended." In New Jersey the exact question arose, and the supreme court decided by a divided bench that the reversal of the statutory bar was good. Then the court of appeals reversed the decision, also by a divided bench. Again,

6

§ 267. Legislation connected with the secession war.- We have also on this question what may be deemed congressional opinions. In 1869 it was provided by congress: "That the time for finding indictments in the courts of the United States in the late rebel states for offenses cognizable by said courts, and which may have been committed since said states went into rebellion, be, and hereby is, extended for the period of two years, from and after [the time when] said states are or may

1 Ante, § 180. And see S. v. Shum- to apply to cases against which the pert, 1 S. C. 85.

2 Ante, § 265.

S. v. Sneed, 25 Tex. Supp. 66. 4 S. v. Moore, 13 Vroom, 208.

Moore v. S., 14 Vroom, 203, [39 Am. R. 558.] It does not seem to me clear that the statute in question required to be construed as intended

limitations law had already fully run.

For a very able presentation of the side of the question favoring the legislative right, with many citations of authorities, see, in the "Globe," the speech of Hon. William Lawrence, of Ohio, delivered January 4, 1867.

be restored to representation in congress: Provided, however, that the provisions hereof shall not apply to treason or other political offenses." 1 There is some other legislation, national and state, which it might be well to consider in connection with this; but lapse of time is fast rendering it unimportant.'

1 Act of March 3, 1869, 15 Stat. at Large, 340, ch. 148. And see Act of June 11, 1864, 13 Stat. at Large, 123, ch. 118; R. S. of U. S., § 1048.

2 See ante, § 261a; U. S. v. Wiley, 11 Wall 508; Stewart v. Kahn, 11

296

Wall. 493; Brian v. Banks, 38 Ga. 300;
Bernstein v. Humes, 60 Ala. 582, [31
Am. R. 52;] Hart v. Bostwick, 14 Fla.
162; Spencer v. McBride, 14 Fla. 403;
Huffman v. Alderson, 9 W. Va. 616;
Oliver v. Perry, Phillips (N. C.), 581.

CHAPTER XXVII.

THE MEANINGS OF PARTICULAR WORDS AND PHRASES IN THE CRIMINAL LAW.

§ 268-270. Introduction.

271-275. The person acting.

276-305. The time and place.

306–318. The thing done.

319-347. Objects acted on and instrumentalities. 347a-350. The proceedings.

§ 268. Elsewhere. We have already seen something of the immense variety in the meanings of words. And a leading purpose of some of the foregoing chapters was to render palpable the effects of their combinations in sentences and with reference to diverse subjects.

Here we are to bring under review various words and phrases technically employed in statutes, in pleadings, and other writings on the criminal law. The elucidations will include the common with the statutory law; because, as we have seen, common-law terms employed in a statute have their common-law meanings; and because it is the purpose of this chapter to avoid, as far as may be, by the completeness of its discussions, the necessity of explanations and repetitions of like things in the remaining part of the volume, and in "Criminal Law," and "Criminal Procedure." Now,

§ 269. Of these technical words and phrases.- While, on the one hand, man needs a language capable of conveying ideas in infinite variety of shade and form, practical necessity requires also, on the other hand, that in some circumstances he be able to render the meanings exact and unquestionable. Such precision is specially essential in the law. And because the decisions of the courts on the significance of words, as on other questions, are authoritative precedents for future causes, the result has come about, that various words and phrases are to be rendered, whether in the statutory or in the unwritten law, by legal meanings, 1 Ante, § 92d.

2 Ante, § 96.

broader, narrower, or otherwise differing from their popular ones. After these legal meanings we are inquiring in the present chapter. Not to introduce into it every word and phrase which the criminal law has defined, but only so much of this matter as the author's division of the entire subject renders most appropriate here, leaving other like matter for other places in this series of volumes,

§ 270. How chapter divided. We shall consider the terms to denote: I. The person acting; II. The time and place; III. The thing done; IV. The objects acted upon and the instrumentalities; V. The proceedings.

I. THE PERSON ACTING.

§ 271. Agent Servant - Clerk, etc.-These words are as familiar in the civil department of the law as in the criminal. And their respective meanings depend, in some degree, on the subject to which they are applied and the connection in which they stand. For example,

Agency falsely assumed. In civil jurisprudence, one who has done what is contrary to the duty of an agent cannot justify himself by showing that, in fact, he was not an agent, but only acting as such without authority. Yet, in the criminal law, a person to be punishable for a wrong committed contrary to his duty as agent must, it appears generally to be holden, be such in fact. Again,—

The one instance only-(Embezzlement).— While in civil jurisprudence it is of no consequence as to the agent's responsibility that he acted or was authorized in the one instance only, there are authorities which seem to make it otherwise in

1 Ante, §§ 98a, 102, 103.

2 Ante, $92a, 93, 95a, 102; S. v. Bancroft, 22 Kan. 170; [S. v. Costin, 89 N. C. 511; Anderson's Law Dictionary, 42, 937, 187.]

3 Story, Agency, 320; Osgood v. Nichols, 5 Gray, 420; Walrath v. Redfield, 18 N. Y. 457; Leader v. Moxon, 2 W. Bl. 924; Hardacre v. Stewart, 5 Esp. 103; Schedda v. Sawyer, 4 McLean, 181; Ellas v. Lockwood, Clarke, 311; Farrell v. Campbell, 3 Ben. 8; [Hodgson u Raphael, 105 Ga. 480, 30

S. E. R. 416; McCormick v. Seeberger, 73 Ill. Ap. 87; Mendenhall v. Stewart, 18 Ind. Ap. 262, 47 N. E. R. 47; Learn v. Upstill, 52 Neb. 271, 72 N. W. R. 213.]

4 Rex v. Thorley, 1 Moody, 343. See Reg. v. Foulkes, Law R. 2 C. C. 150, 13 Cox, C. C. 63; Morse v. S., 6 Conn. 9; Crim. Law, II, §§ 363, 364; [Brady v. S., 21 Tex. Ap. 659, 1 S. W. R. 462; S. v. Smith, 57 Kan. 567, 47 Pac. R. 535.]

criminal. According to some of the cases, he must, in embezzlement, be an agent generally, not merely employed specially to do a single act in the particular matter;' though he need not devote his whole time or any considerable part of it to his employer, or be regularly or constantly in his service. But the better modern doctrine discards this distinction and applies the rule of our civil jurisprudence to the criminal. On the whole,

Elsewhere. Because of these and other differences, real or supposed, the plan of this series of volumes is not to extend this discussion here, but to explain these several terms in connection with the respective topics to which they relate.'