§ 266. Right to authorize prosecution of barred offense (Ex post facto law).— However ungracious it may be for the legislature to withdraw from persons accused of crime the protection of a limitations statute which has once attached, there is no room to question its power unless some clause of the constitution can be pointed to forbidding. The doctrine of vested rights, which concerns property alone,2 is not applicable; there is no such thing as a right vested in one to go unwhipped of criminal justice. The only question, therefore, is whether such a provision is ex post facto. No other express constitutional clause than the one forbidding ex post facto laws has ever been distinctly suggested as applicable to the case. On this question it may be observed, first, that such a statute is not within any of the recognized legal definitions of an ex post facto law;1 secondly, that it is not within what we may term the lay-meaning of the words ex post facto-after the fact. The punishment which it renders possible, by forbidding the defense of lapse of time, is exactly what the law provided when "the fact" transpired. No bending of language, no supplying of implied meanings, can, in natural reason, work out the contrary conclusion. And lastly, such a statute, however inexpedient or oppressive it commonly would be deemed, is not within the mischiefs at which the constitutional inhibition of ex post facto laws is directed. Natural justice and a fundamental principle of the criminal law alike forbid the infliction of punishment where there could be no conscious guilt. And the extent of the conscious guilt should be and is the measure of the punishment. To protect, as far as may be, this principle from the violence of inconsiderate or turbulent legislation, the inhibition of ex post facto laws secures men against being punished beyond what it was possible for their conscious guilt to have been when the "fact" occurred. But a statute removing a limitations bar is wholly outside of this sort of consideration. And it is immaterial to the argument what other considerations, or how forcible, there may be against it. The running of the old

1 Ante, SS 39a-41, 91a; Calder v. Bull, 3 Dall. 386, 399; Minge v. Gilmour, 1 Car. Law Repos. 34; Albee v. May, 2 Paine, 74: Beach v. Woodhull, Pet. C. C. 2.

22 Bishop, Mar. Women, § 32; 1 Bishop, Mar., Div. & S., §§ 667, 693. 3 Ante, SS 85, 176, 180, 184, 185; Crim. Law, I, § 279.

4 Crim. Law, I, § 279-284.

5 Crim. Law, I, §§ 205, 286-291.

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." 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.2

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

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. 296

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. 847a-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, 18 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. 535.1