Moore v. State

The opinion of the court was delivered by

Dixon, J.

An act passed March 18th, 1796, (Pat. L., p. 208,) entitled “An act for the punishment of crimes,” provided in section 73, that no person should be prosecuted, tried or punished for any offence not punishable with death, unless the indictment for the same should be found within two years from the time of committing the offence. This law continued in force, without change, until March 14th, 1879, when a proviso was added to the effect that, for a certain class of offences, a person may be prosecuted, tried and punished “ where the indictment has been or may be found within five years from the time of committing the offence.” Pcimph. L. 1879, p. 183.

In September, 1879, the plaintiff in error was indicted in the Middlesex Oyer for an offence of the class last mentioned, and upon his trial, it appeared that his misdemeanor was committed more than two years before March 14th, 1879. He therefore insisted upon an acquittal under the statute of 1796, but the defence was overruled and he was convicted. The conviction having been affirmed by the Supreme Court, is now before this court, and .the question presented by the record is, whether the defence set up at the trial is valid in law.

If the act of 1879 reached offences which, at the time of its passage, had become dispunishable by force of the law of 1796, then the judgment below is legal, otherwise not.

Upon the trial and in argument here, the question was treated as depending solely on the power of the legislature. It was conceded that the language and purpose of the amendment of 1879 embraced the plaintiff’s case, but it was denied that at so late a date a valid law could be passed to punish his crime. We will dispose of the ease upon the question thus presented.

The plaintiff’s first position is, that by the lapse of two years he acquired a vested right not to be prosecuted or punished for his offence, which the legislature could not take away.

In considering this position, an analogy which is obviously suggested, is that of statutes for the limitation of civil actions.

It is well settled that such laws usually relate to the remedy and not directly to the right. They are not to be considered as elements entering into contracts, for, it is said, parties do not look forward to a breach of their bargains, but to the performance. Ogden v. Saunders, 12 Wheat. 213; Don v. Lippmann, 5 Cl. & Fin. 1.

Hence, in the United States, it is held that a law passed subsequently to a contract, and changing the period of limitation, is not necessarily a law impairing the obligation of the contract, (3 Pars, on Cont. 557,) and, ordinarily, courts disregard the limitation fixed in the place of the contract or tort, and enforce only that of the lex fori. Gulick v. Loder, 1 Green 68; Townsend v. Jemison, 9 How 407.

But, since it is a general and indisputable rule, that where there is a legal right, there is also a legal remedy by suit or action at law, (3 Black. Com. 23,) it follows that where the remedy by action is tolled, the right also is legally extinguished, so far forth as that remedy was necessary for its enforcement.

Usually the bar of a statute limiting transitory actions is said not to extinguish the right, because such actions may be brought anywhere, while the statute can have no effect beyond the territory of the sovereign that enacted it; therefore, the right remains to support such action wherever the lex fori will permit it to be brought. But, even under these statutes, if the subject matter of an action and the opposing claimants of the right have continued within the same jurisdiction until the statutory term has expired, the title is transferred to him in whose favor the bar exists, aud that title will be recognized and upheld in the tribunals of other states, as well. Newby’s Adm’rs v. Blakey, 3 H. & M. 57; Brent v. Chapman, 5 Cranch 358; Shelby v. Guy, 11 Wheat. 361; Thompson v. Caldwell, 3 Lit. (Ky.) 137; Story’s Conf. of Laws, § 582 b; Huber v. Steiner, 2 Bing. N. C. 202; Don v. Lippmann, 5 Cl. & Fin. 1.

In regard to local actions, the bar of the local statute extinguishes the right, so far as the suit prohibited is the legal means of vindicating the right. Thus, in England certain possessory actions existed for enforcing the right to possession of lands; when these actions had become barred, the right of possession was transferred to him that before had possession only, and the former owner had the mere right of property. 3 Black. Com. 194; Taylor v. Horde, 1 Burr. 60, 119. But when, as by a Jamaica statute, it was provided that after seven years’ possession of land under a deed, the act might be pleaded in bar in any suit, claim or demand brought against the possessor by any person whatsoever, then it.was decided that the possession was converted into a positive, absolute title against all the world. Beckford v. Wade, 17 Ves. 87.

And it has been repeatedly adjudged that a statute which bars all remedy, gives a perfect title, with all its incidents. Knox v. Cleveland, 13 Wis. 249; Moore v. Luce, 29 Penna. St. 262; Leffingwell v. Warren, 2 Black (U. S.) 599; 2 Wash. Real Prop. 574; Cooley’s Const. Lim. 365.

In Moore v. Luce, Chief Justice Lewis said, “laws never deliberately take away all remedy without an intention to destroy the right. When all remedies are taken away after a specified period of neglect in asserting rights, and when this is done for promoting the best interests of society, the right itself is destroyed.” Said Judge Swayne, in Von Hoffman v. City of Quincy, 4 Wall. 535, 552, “ without the remedy, the contract may, in the sense of the law, be said not to exist.” And Washington, J., in Creen v. Biddle, 8 Wheat 1, 76, “ if there be no remedy, the law necessarily presumes a want of right.”

Now, in all these classes of cases, the courts have decided, that the rights acquired by reason of these statutes of limitation, whether they were rights of property or simply rights to defeat suits, and whether the suits arose ex contractu or ex delicto, could not be taken away by the repeal or modification of the law.

In Wright v. Oakley, 5 Metc. 400, 410, Chief Justice Shaw intimated that it might not be proper, in technical strictness, to say that a man had a vested right to plead the statute of limitations, so that it could not be taken away by an express act of the legislature; but he declined to give such an effect to the statute then before him or definitely to concede that any enactment could so operate. In Ball v. Wyeth, 99 Mass. 338, the court still expresses “grave doubt” of the authority of the legislature to give an action after the bar of the statute is complete. But other tribunals have gone further than the expression of doubts, and have distinctly denied the existence of such authority. In the following cases it was directly adjudged that the legislature had not the power. Naught v. O’Neal, 1 Ill. 36; Sprecker v. Wakeley, 11 Wis. 432; Parish v. Eager, 15 Wis. 532; Bagg’s Appeal, 43 Penna. St. 512; McKinney v. Springer, 8 Blackf. 506 ; Stipp v. Brown, 2 Ind. 647; Davis v. Minor, 1 How. (Miss.) 183; Woodman v. Fulton, 47 Miss. 682; Martin v. Martin, 35 Ala. 560; Girdner v. Stephens, 1 Heisk. 280; Atkinson v. Dunlap, 50 Me. 111; Ryder v. Wilson’s Ex’rs, 12 Vroom 9.

This conclusion has usually been grounded upon the general principle that it is not within the appropriate sphere of legislative action to pass laws taking away vested rights without the fault or neglect of their owner; and perhaps, in some states, there was not, at least until recently, any express constitutional prohibition against the exercise of such a power. [Nevertheless, that it was forbidden by fundamental principle, is established, (to adopt the language of Chief Justice Kent, in Dash v. Van Kleeck, 7 Johns. 508,) by a “ train of authority, declaratory of the common sense and reason of the most civilized states, ancient and modern, sufficient to put it at rest, and to cause not only the judicial, but even the legislative authority to bow with reverence to such a sanction.” But, besides, there is, in the bill of rights forming part of the constitution of this state, a declaration, which, I think, plainly implies such an inhibition, viz., “that all men have a natural and inalienable right of enjoying and defending life and liberty, and of acquiring, possessing and protecting property; ” for it'seems idle to assert, in an instrument designed to indicate and limit the powers of government, that a right is natural and inalienable, if it can be destroyed or taken away by tbe mere will of the legislature. Moreover, there is now, I apprehend, incorporated in the constitution of the United States, a restriction upon the states which effectually prevents the wielding of such authority. Article XIV., section 1, of the recent amendments, declares that “no state shall deprive any person of life, liberty or property, without due process of law.” It may be impossible, it certainly would be presumptuous, to attempt to frame a definition of “ due process of law,” which shall embrace all and only all the cases which a just mind will perceive to be included in it • but if an enactment of the legislature which purports simply to strip a man of his right to protect his property, be such process, then the provision is not of sufficient value to warrant its insertion in the organic law. .That such a statute is not “ the law of the land ” or “ due process of law,” is clearly averred and maintained in Davidson v. New Orleans, 96 U. S. 97, and in Maxwell v. Goetschius, 11 Vroom 383, and cases there cited.

It thus, then, appears to be settled by numerous decisions in civil causes, that when a right of action is barred by a statute of limitations, it cannot be revived by act of the legislature, and that when such a right is so barred in favor of one. having possession of property, (if there be no conflicting jurisdictions,) the possessor becomes the owner of the property, with all the incidents of ownership, and his title cannot be impaired by subsequent legislation. Whether these decisions rest upon express constitutional declarations, or upon still deeper principles, underlying all popular government, is not so important to the present inquiry as is the fact that the stability of their foundation is assured.

We come now to examine whether the rights and liabilities consequent upon crimes are analogous to those which attend civil injuries, what effect our statute of limitations purports to have upon such consequences, and whether there are as strong reasons as in civil matters for considering that effect permanent.

Before committing any offence, the citizen had a natural and absolute right to life and liberty. By his offence, the state acquired the right to deprive him of life or of liberty to the extent prescribed by the violated law. The citizen remained in possession of life and liberty, but his possession was liable to be disturbed by means of a prosecution to be instituted by the state according to law. His offence, however, was local, and subjected his possessions to impairment only within the jurisdiction whose laws he had broken. In these respects, the relation between the offender arid the state corresponds to that between one having the possession of land without the right of possession and one entitled to invade that possession by action at law. In both cases, there is a right of suit which must be pursued, if at all, within and under the laws of a single jurisdiction, and, in-both cases, the wrong-doer holds a possession which only such legal prosecution can take away.

In view of this position of things, the statute of limitation declares that no person shall be prosecuted, tried or punished for an offence unless the indictment be found within two years after the crime. This, in effect, enacts that when the specified period shall have arrived, the right of the state to prosecute shall be gone, and the liability of the offender to be punished,—■ to be deprived of his liberty,—shall cease. Its terms not only strike down the right of action which the state had acquired by the offence, but also remove the flaw which the crime had created in the offender’s title to liberty. In this respect, its language goes deeper than statutes barring civil remedies usually do. They expressly take away only the remedy by suit, and that inferentially is held to abate the right which such remedy would enforce, and perfect the title which such remedy would invade; but this statute is aimed directly at the very right which the state has against the offender, the right to punish, at the only liability which the offender has incurred, and declares that this right and this liability are at an end. Corresponding provisions in a statute concerning lands would undoubtedly be held to extinguish every vestige of right in him who had not asserted his claim, and to perfect the title of the possessor. Giving them the same force regarding crimes, they annihilate the state’s power to punish, and restore the offender’s rights to their original status.

The next question is, whether this condition is as permanent and unassailable by subsequent legislation as it would be if it pertained to civil rights and remedies.

If the legislature, by declaring that because of the lapse of time it will withhold all remedies, transfers the property of one citizen to another, so absolutely that no after-enactment can restore it, does the legislature, by declaring that for the same cause its own right to proceed against the life and liberty of the citizen has ceased, obliterate its own claim so absolutely that no after-enactment can restore it? It should seem that he who gave a negative answer to this inquiry ought to furnish cogent reasons for his position. To the common sense, it would appear that the power of the state to waive a forfeiture to itself was at least as complete as its authority to deny remedies to its citizens, and that life and liberty were entitled to a shield as impenetrable as that of property.

But let us see whether the bases upon which the inviolability of property is said to rest, underlie also life and liberty. It is asserted that it is not within the appropriate sphere of legislation to take away vested rights of property without the fault or neglect of their owner; that government exists to guard such rights, not to destroy them. So far as this is true, it is axiomatic; no advocate of free institutions will deny it; none can prove it. I avow the same principle as to life and liberty. But it may be alleged that, in the case in hand, these rights are assailed because of the crime of their possessor. The answer is, that notwithstanding that crime, they had resumed their natural character. And if it be suggested that after the so-called resumption, they still remained subject to a change of legislative purpose as to the state’s duty to punish crime, the query then arises, why rights of property acquired under limitation laws, do not also remain subject to a change of legislative purpose as to the state’s duty to furnish remedies for private wrongs. The duties are equally obligatory; and we are brought back to the assertion that the rights are alike protected by fundamental principle, an assertion to be either accepted as an axiom or rejected.

Then, as to express restraints upon the legislature. We have seen that the bill of rights of Hew Jersey places first among those which are natural and inalienable, that of enjoying and defending life and liberty, and that the federal amendment enumerates these blessings before property, as possessions of which no state shall deprive any person without due process of law. Certainly no inference unfavorable to the claim of the plaintiff in error can be drawn from these provisions. But it is intimated that the prohibition against taking private property for public use without just compensation implies a prohibition against taking such property for private use, even with compensation; and it is urged that as there is no such enactment whence to infer similar protection to life and liberty, therefore such protection is wanting. I cannot think it reasonable to draw such an inference from such premises. The same line of argumentation would lead to the position that, if there were no other express constitutional restraint, life and liberty could be taken away arbitrarily by the legislature, for either public or private convenience, and without any attempt at compensation. Such a conclusion is utterly inadmissible, because utterly repugnant to our ideas of the purposes of the social compact. On the contrary, life and liberty can be taken away by the legislature, never for private convenience, nor ever for public convenience, save in those junctures where the preservation of society is the motive for conceding the power. The personal right needs not to be proved, but (he necessity of the public power must be established.

Then if, on the other hand, we regard the sphere in which it is admitted that the state may invade the right of personal security, it will be evident how many other express restraints our constitution has placed upon this power. The only province in which such authority is called into constant or even frequent exercise, is for the detection and punishment of crimes. But in this domain, the presentment or indictment of a grand jury must precede the citizen’s being held to answer, except in matters particularly enumerated; lie must have the privilege of the writ of habeas corpus, unless in rebellion or invasion the public safety requires its suspension; he is entitled to be released on reasonable bail, save in capital eases; he has the right to a speedy and public trial before an impartial jury, to be informed of the nature and cause of the accusation against him, to be confronted with the state’s witnesses, and to have compulsory process for his own, and to have the assistance of counsel in his defence ; if acquitted, he cannot be again tried for the same offence; if convicted, no excessive fine or cruel and unusual punishment may be imposed. Certainly, no such guards are thrown by the organic law around the rights of property, as these Avith- Avhich it protects life and liberty, against the state; and if it can be gathered from that instrument that the legislature cannot take away from the citizen a title or a defence for property which he has acquired under the laAV, a fortiori must it be thence deduced that such a poAver may not be wielded against life or liberty.

Thus, Ave conclude that every reason which has pressed courts to ascribe finality to the limitation of civil remedies, when once it has attached, impels this court to predicate the same conclusiveness of the bar against criminal prosecutions. See Thompson v. State, 54 Miss. 740.

Just here it may be proper to notice íavo objections that are presented against this decision. One is mentioned in the opinion of the learned Chief Justice in this case before the Supreme Court, to Avit, that it seems to run into the absurd for a criminal to assert an indefeasible right as against the legislature, not to be tried or punished for his offence after a specified time, for such a claim, he says, assumes the semblance of an assertion that the criminal act Avas done in reliance on such an expectation. Such is the respect entertained for this skilled jurist and logician by the bench and bar of the state,'that to dissent from his deliberate conclusions creates in the mind an uneasy apprehension of mistake; but one cannot help seeing that, in making the foregoing statement, he has overlooked ■the fact that in civil matters, the indefeasibility of the bar is not made to at all depend upon the notion that the'statutory limitation entered into the thoughts of the defendant when doing the act to be defended. This idea is expressly repudiated in the cases, for, if of any force, it would make the statute. unchangeable as soon as the prescribed term began to run, a claim which no court has ever sanctioned. It is a defence acquired, not the hope of one, which is indefeasible. Until the fixed period has arrived, the statute is a mere regulation of the remedy, and, like other such regulations, subject to legislative control; but afterwards, it is a defence, not of grace, but of right; not contingent, but absolute and vested; and, like other such defences, not to be taken away by legislative enactment.

The other objection is suggested by Mr. Bishop in his treatise on Statutory Crimes, section 266, to the effect that a criminal statute of limitations simply withholds from the courts jurisdiction over the offence after the specified period, and it is competent for the legislature to revive the old jurisdiction or create a new one, when the prosecution may proceed.

Evidently the same doctrine would upset the uniform train of decisions in civil causes—and moreover, it would be a strained and unnatural interpretation of our act to say that it simply withholds jurisdiction from the courts. Its language is “ no person shall be prosecuted, tried or punished.” It does not relate to the courts, but to the person accused. The answer which, under it, the defendant must make to an accusation before the tribunal which once had the right to punish him, is, not that the court has no jurisdiction to inquire into his guilt or innocence and pass judgment, but that, after inquiry, the court must pronounce judgment of acquittal. And probably no one would contend that after such judgment, any change in the law could legally subject the defendant to a second prosecution. Yet, I suppose, an acquittal by a court without jurisdiction, is void. Hawk. Pl. Cr., bk. 2, ch. 35. It cannot be maintained, then, that the act impairs jurisdiction.

We now come to a second position taken by the plaintiff in error, that the statute of 1879, so far as it purports to reach his'case, is an ex post facto law. If it be, it is expressly prohibited. by both state and federal constitutions.

It has already been seen that at the time this act was passed, the plaintiff was, under pre-existing laws, relieved from all liability to punishment for his offence, and if there be now any such legal liability, it is because that liability has been created by the statute in review. The question therefore is, whether a law which creates a liability to. punishment for a preceding offence is an ex post facto law.

Ex post facto laws are, in a general sense, enactments after the facts to which they relate, and the expression would include both criminal and civil statutes. Burrill’s L. Dic., sub nom. In Den v. Goldtrap, Coxe 272, A. D. 1795, Chief Justice Kinsey, in the Supreme Court, said of a law for the recording of pre-existing mortgages, “ this act, strictly speaking, is ex post facto." Not long afterwards, the same court adjudged a statute declaring that in certain cases payments made in continental money should be credited as specie, [Pat. L., p. 172,) to bean ex post facto law, and as such, unconstitutional, 4 Plalst. (Appendix) 444; and in State v. Parkhurst, decided in 1802, and reported in the same appendix, Chief Justice Kirkpatrick said that a law depriving a man of one office because of his holding some other office, might, perhaps, be questioned as an ex post facto law. See, also, Justice Johnson’s references in appendix, 2 Peters 681.

But it has now long been settled that as used in our constitutions, the phrase embraces only retrospective statutes of a criminal or penal character. To what extent it includes these, is not definitely determined. It has sometimes been said that at the time of the adoption of the federal constitution, the words had acquired a fixed meaning as a technical term; but a reference to the citations already mentioned shows that this statement is not exactly true, and in Calder v. Bull, 3 Dall. 395, Judge Chase says “the words ex post facto law have not any certain meaning attached to them.” Before the constitution, Blaekstone’s definition, so called, is the only one referred to as giving the words precision. I think it is doing the illustrious commentator injustice to consider his language as an attempt to define the term. He was speaking of the necessity of having rules prescribed, made known, before they became obligatory, and after mentioning one iniquitous practice in this regard, he says “there is still a more unreasonable method than this, which is called making of laws ex post facto; when, after an action (indifferent in itself) is committed, the legislature, then for the first time, declares it to have been a crime, and inflicts a punishment on the pei’son who has committed it.” To me, this appears rather an illustration than a definition. Doubtless, the class he specified was ex post facto, and-perhaps the most glaring instance of the injustice of such laws, which was the thought he was aiming to present; but it hardly seems probable that he considered his illustration as embracing all possible cases. However this is, it cannot be disputed that the accuracy of this so-called definition was early denied, and it has never been received as complete ; for a law increasing the punishment of former crimes is as clearly ex post-facto as one inflicting, punishment for a previous innocent act.

In Ex parte Garland, 4 Wall. 333, Mr. Reverdy Johnson, arguendo, (p. 365,) quotes two other definitions by English writers, viz., that such a law is one “ made to meet a particular offence committed,” and that it is “ a law enacted purposely to take cognizance of an offence already committed.” These definitions differ from Blackstone’s in the only particular wherein the latter fails to cover the case in hand. They do not regard as essential the innocence of the act for which the penalty is imposed.

Turning now to authorities since the constitution was framed, we first notice the Federalist; but all the light which it affords is in the eighty-fourth number, by Mr. Hamilton, where, however, he merely repeats the illustration of Justice Blackstone. This, therefore, is not a perfect guide.

Next comes the case of Calder v. Bull, 3 Dall. 386, one cited more frequently than any other. Of this case, it may be remarked that the only question before the court was whether a law of Connecticut granting a new hearing in a civil cause was forbidden as being an ex post facto law; and when the court determined that the interdict did not extend to civil statutes it decided the cause. What was said, therefore, by Judge Chase as to the kind of criminal statutes prohibited, was fairly obiter dictum. But in the course of his remarks he mentions four classes of laws which he considers ex post facto within the words and intention of the constitution, and his classification has often been repeated by judges and text-writers in discussing the subject. Still, it may not be presumptuous to say that doubts may be entertained whether his fourth class does not include cases outside of the prohibition, whether every law that alters the legal rules of evidence and receives different testimony than the law required at the time of the commission of the offence, in order to convict the offender, is an ex post facto law. Mr. Bishop declines to assent to it, and Chief Justice Beasley mentions it with a “ perhaps,” and it is easy to see that it may entrench too far upon legislative control over mere methods of procedure. But it is plain that Judge Chase’s classes extend much beyond Blackstone’s expression. It seems to me, also, that Judge Chase did not consider his classes as exhaustive, for he closes them with the remark that “all these and similar laws are manifestly unjust and oppressive,” an allusion, doubtless, to the characteristics by which he had formulated his rules.

The statute in hand is not covered by any of these classes, unless possibly by the fourth, but as that is of questionable propriety, it may be passed by. Looking, however, away from his classification to what he states to have been the motive for and principle sustaining the edict, we find him using language which easily embraces the presfent case. Among the unrighteous acts of the British Parliament, which moved the framers of this government to set up this restraint, he says, “ at other times they inflicted punishment where the party was not by law liable to any punishment;” which means, of course, not liable by any law in existence before the unjust law itself was passed. This phrase exactly describes the operation of our statute of 1879 upon this plaintiff. The law inflicted, punishment upon him who was not, by pre-existing law, liable to any punishment. Again, the judge says, “ the plain and obvious meaning and intention of the prohibition is this, that the legislatures of the several states shall not pass laws after a fact done by a subject or citizen, which shall have relation to such fact and shall punish him for having done it.” If this be true, then is this law forbidden; for it was passed after the act done by the plaintiff, and it had relation to such act, and punished him for having done it ? He further says, “ the prohibition is an additional bulwark in favor of the personal security of the subject, to protect his person from punishment by legislative acts having a retrospective operation.” Then, behind this bulwark, the plaintiff’s person must be protected from punishment by this legislative act having a retrospective operation. So, in Calder v. Bull, the judges refer to the constitution of Delaware as prohibiting ex post fado laws, in these words: “ Retrospective laws punishing offences committed before the existence of such laws, are oppressive and unjust, and ought not to be made.” Language could not more completely embrace this statute in its relation to the plaintiff. The words of other state constitutions are not so plainly applicable; thus, those of Maryland and North Carolina declare “ that retrospective laws punishing facts committed before the existence of such laws, and by them, only dedared ■ criminal, are oppressive, unjust and incompatible with liberty: wherefore, no ex post fado law ought to be made.” One clause in this paragraph prevents the inclusion of the statute now before us in the class thus described, but it is noticeable that the interdict is not limited to that class, but extends to all ex post fado laws; and it is conceded that such are those providing penalties for previous acts which were criminal under other laws.

The next indication of the meaning of the phrase is Chief Justice Marshall’s justly lauded expression in Fletcher v. Peck, 6 Cranch 138 : “An ex post facto law is one which renders an act punishable in a manner in which it was not punishable when it was committed.” If this be an exact definition, then an act to change the penalty of murder or treason previously committed, from death to a fine, would be void. But if even Marshall’s terse language be as broad as Chancellor Kent declares it is, it includes the present statute, for, he says, it extends to laws passed after the act and affecting a person by way of punishment for that act, either in his person or estate. 1 Kent’s Com. 409. That is precisely the force ascribed to this law against the plaintiff.

These instances sufficiently exhibit the forms of expression adopted by judges and authors concerning ex post facto laws, and from them it is perceived that among mere verbal definitions, some reach the statute now under review and some do not. But all authorities now agree that the constitutional phrase is not to be received in its literal sense, that it does not embrace all ex post jacto laws, i. e.} all laws passed after the occurrences to which they relate, but its meaning is to be ascertained by considering the motives which prompted its adoption and the spirit which it was designed to embody. No one can expect to indicate in advance, cúrrente calamo, all the modes in which legislation may antagonize its beneficent purpose, and it must be left for judicial tribunals, actuated by like motives and imbued with the same spirit, to pronounce, in the light of precedent decisions, upon each case as it shall arise. For the present inquiry, judgments already rendered, not dicta, seem to me to afford no uncertain guide, and to lead to the conclusion that the determination below was wrong.

There is a line of cases which hold that laws regulating the mode of procedure in the prosecution of antecedent crimes are not ex post facto. With such legislation, so long as (to use the language of Judge Cooley, Const. Lim., 272,) it does not dispense with any of those substantial protections with which the existing law surrounds the person accused of crime, no fault can be found. Of this class, I think, are the cases of Commonwealth v. Getchell, 16 Pick. 452, and Commonwealth v. Mott, 21 Pick. 492, which are cited as supporting the judgment now before us. The legislation in review was to this effect: a statute of 1827 enacted that a person convicted of a crime punishable by imprisonment, who had been before sentenced to like punishment, should be liable to confinement at hard labor not exceeding seven years, in addition to the penalty prescribed for his later offence, and the prosecution for this additional punishment was to be by a separate information. A statute of 1832 provided that no convict should be sentenced under the prior act, unless he should before have been twice sentenced and twice discharged from jorison. A statute of 1833 repealed that of 1832 and substantially re-enacted that of 1827. The defendant, Getchell, was undergoing his second imprisonment before, during and after the existence of the act of 1832; and the court held that, after its repeal and before his discharge, he was liable to be sentenced to the additional punishment. This was the posture of affairs: when convicted, pending the act of 1827, he at once became liable to the additional prosecution; then the act of 1832 suspended the prosecution until he should have been discharged from prison ; then the act of 1833 restored the permission to prosecute at once. The laws of 1832 and 1833 were manifestly mere regulations of the procedure. That of 1832 did not relieve the defendant from liability to prosecution and penalty, but simply stayed the prosecution (and that, in a manner not at all beneficial to him,) until his present imprisonment was ended. In Mott’s case, the second offence was committed pending the act of 1827, but he was not convicted of it till after the act of 1833. It was decided that his case was not distinguishable in principle from Getcbell’s, and it is not evident how it could be. Chief Justice Shaw says that the act of 1832 was to meet cases of two sentences at the same term of court, and relieve them from the act of 1827; and it would have had that effect; for then there would have been liability under the early act by reason of the first sentence and second conviction, but there never could arise liability under the later act, because there could not be two discharges from prison. If such a case had come before the court, and as to that the law of 1833 had been held .valid, the decision would have been in point here; but these cases are not.

The following adjudications are, in principle, adverse to the judgment now before us, recognizing the notion that a statute substantially imposing punishment for a previous act which, without the statute, would not be so punishable, is an ex post facto law, although it may not be included in the letter of Judge Chase’s rules.

In State v. Sneed, 25 Tex. (supp.) 66, a law which attempted to remove the bar of the statute of limitations was denounced as ex post facto.

State v. Keith, 63 N. C. 140, presented this point: after the prisoner’s crime, an act of amnesty was passed, by force of which-he was relieved from liability to punishment; subsequently this act was'repealed by ordinance'of the state convention ; and then the prosecution was instituted. The court decided that the ordinance was an ex post facto law, because it made criminal, (i. e., punishable,) what before the ratification of the ordinance was not so, and took away from the prisoner his vested right to immunity. Dr. Wharton (Grim. Pl. & Pr., § 316,) borrowing almost the language of the court in People v Lord, 12 Hun 282, says “the statute [of limitations] is not a statute of process, to be scantily and grudingly applied, but an amnesty, declaring that after a certain time oblivion shall be cast over the offence.” On the other hand, it is urged that it is not permissible to consider such a statute as an amnesty or pardon, because these are always granted after the crime, and are intended to absolve the guilty, while that is enacted before the fact and is designed to protect the innocent. Neither of these grounds of distinction seems to me stable. It is not the passage of the limitation law, but its maintenance unrepealed for the requisite period after the offence, which creates the amnesty, and its very terms indicate that the guilty, and not the innocent, were those the legislator had in view; it begins to run only on the “committing of the offence.” True, an innocent man may set it up, but so he may a general amnesty. It is not inapt, then, to call the bar of such a statute an amnesty. But name it as you will, at least the act of 1879 purported to do with the plaintiff what the North Carolina ordinance attempted to do with Keith, and for which it was adjudged unconstitutional; it made punishable what before its passage was not so, and took from the plaintiff his vested right to immunity.

In Hartung v. People, 26 N. Y. 167, this was the condition of things: the prisoner had committed murder, been tried, convicted and sentenced to death, while the law provided that death should be the penalty, and the sentence of the court the mode of fixing the time for its infliction. Then she had sued out a writ of error carrying the judgment to the Court of Appeals, and pending that writ the former law had been repealed, and a law enacted to the effect that all persons then under sentence of death should be confined at hard labor in the state prison for one year, and thereafter until the governor should issue his warrant for the execution of the sentence. On this writ of error, the Court of Appeals had decided that this change in the law rendered the judgment below erroneous, and had reversed it and ordered a new trial (22 N. Y. 95.) Afterwards a law was passed restoring the statute as it existed when the murder was committed. The court decided that as to her this last act was an ex post fado law and unconstitutional. It is true, that, in reasoning upon the subject, the court adverts to the fact that before the passage of the law, the defendant had been adjudged to be dispunishable for murder under laws then existing; but manifestly it was the fact that she had become dispunishable, and not the existence of any verdict or judgment, that gave this character to the subsequent law. The verdict or judgment might protect her from legislative reach because of some other 'fundamental principle, but interference with judicial proceedings has never been regarded as of the essence of ex post fado laws. It is by their effect upon the status of individuals that they are to be so characterized. And such was the view of the court; for Chief Justice Denio, in delivering the opinion said, “ by the repeal of the provisions of the Revised Statutes, and the trial and acquittal of the offender while such repealing law was iu' force, the act of the prisoner, though not innocent in a moral sense, would be dispunishable. A legislative act restoring the repealed law would have precisely the same effect as though the offence had not been punishable originally, but had been made so for the first time by the restoring act. Such a law would be within the spirit of this constitutional prohibition, and would, in my opinion, be void.”

In the same category is the case in hand. The law prescribing punishment for the plaintiff’s crime, had not indeed been repealed, but as to that offence it had expired, and so was as if repealed (Yeaton v. United States, 5 Cranch 281); hence it was the same thing, with regard to that transaction, as if it had never existed. Surtees v. Ellison, 4 M. & R. 586; Kay v. Goodwin, 6 Bing. 582; Potter’s Dwar. on Stat. 160. The sanction of the law was dead. The plaintiff’s act stood as though it had been perpetrated in the face of a statute which forbade it, but declared that he should not be prosecuted, tried or punished for doing it. Then the act of 1879, restoring the expired law, had precisely the same effect as though the offence had not been punishable originally, but had been made so for the first time by the restoring act. Such a law is within the spirit of the constitutional prohibition.

In In re Murphy, 1 Woolw. 141, the defendant had been convicted by court-martial, at a time when he was subject to trial only in civil tribunals. Afterwards congress passed a law to validate such conviction. On habeas corpus, Justice Miller said: “ If this act be valid, the prisoner must be detained. It is evidently intended to make two provisions, one, to validate the punishment of offenders which would otherwise be illegal. * * * So far as the first point is concerned, the law is unconstitutional; undoubtedly so. No clearer case of an ex post facto law can be framed. * * * The prisoner, up to the time of the passage of this law, was certainly illegally imprisoned, because tried by and held under the sentence of a court which had no jurisdiction of his person or of his offence. If he be remanded, it will be under an act passed subsequent to his offence, and even to his conviction. Can any law be more clearly ex post facto ? ”

So with the case of this plaintiff. It is sought to legalize his punishment, which would otherwise be illegal, by an act passed subsequent to his offence, without which he was free from lawful prosecution, not only in some courts, but in all courts and by any methods. Such a statute is void.

In addition to these decisions, the opinion of Mr. Wharton is well worthy of being cited. In a note to section 316 of Criminal Pleading and Practice, he does not hesitate to say that an act of congress which undertakes to authorize prosecutions for offences which prior statutes of limitation have canceled, is an ex post-facto law, and hence void.

The impolicy of keeping crimes, not of the deepest dye; punishable during the whole life of the offender, is sufficiently indicated by the common usage of civilized nations in fixing a period for the limitation of criminal prosecutions. The beneficent aims of such a usage are thwarted if the limitation be not absolute and irrevocable. The injustice and oppression of laws repealing the limitation, after persons have once relied upon its finality, must be apparent to all. The innocent, conscious of acts which, when only partially disclosed, may seem criminal, preserve the evidence of the whole truth until time has established the legal proof of innocence by barring prosecution. Then their vigilance relaxes and their evidence is lost. What more unjust, than that now the legislature should abate their protection, and leave them to the hazard of half-discovered facts? A guilty man, not wholly lost to honor and to hope, passes through the statutory period after his single offence, cowed by the constant dread of detection and disgrace. Then, relieved from danger, he returns to the path of rectitude, forms respectable associations, and gathers around him those who repose in his virtue and depend upon his fair fame. Now the law changes; the detective drags to light his long-buried crime; and innocent and guilty alike are overwhelmed in a common ruin. It was of grace that remission was granted ; it is the spirit of injustice and oppression that withdraws it. To forbid the exercise of such power, the mandate of the constitution stands.

There is another aspect of this case, not presented upon the argument, but in which some members of the court think it a])pears that the judgment below is wrong.

Statutes extending periods of limitation áre not to be construed as designed^to affect cases where the bar has already attached, unless no other reasonable interpretation can be applied. Angell on Lim., § 22, note.

The act of 1879 is doubtless retrospective, but every word of it, save two, may have effect, and yet reach only past offences still subject to punishment when it was enacted. These two words make the prosecution legal where “the indictment has been found within five years from the time of committing the offence.” This provision is nugatory, unless it was meant to legalize indictments theretofore found more than two years after the crime. But this language does not reach the plaintiff’s case; his indictment was found after the statute; and, under the rule, rigorously enforced, the law may be considered as not legalizing his prosecution. If necessary to avoid injustice, I would so interpret it.

The judgment below should be reversed.

Runyon, Chancellor.

By the one hundred and thirteenth section of the act regulating proceedings in criminal, cases, {Rev., p. 288, 289,) it is provided that no person or persons shall be prosecuted, tried or punished for an offence not punishable with death, unless the indictment shall be found within two years from the time of committing the offence or incurring the fine or forfeiture, provided that nothing contained in the act shall extend to any person or persons fleeing from justice. The Revision -was approved March 27th, 1874. By a supplement approved March 14th, 1879, (Pamph. L., pp. 183, 184,) the section was amended by adding the following further proviso: “That any person holding or having held, or who may hereafter hold, any public office or employment, or exercise the functions of such office or employment, either under this state, or any county, city, borough, town or township therein, whether elective or appointive, may be prosecuted, tried and punished for any fraud, malfeasance or other misconduct committed whilst in such office or employment, where the indictment has been or may be found within five years from the time of committing the offence.”

The plaintiff in error was convicted of an offence not punishable with death. It was committed more than two years before the passage of the amendment, and under the law as it stood before the amendment, it was barred, because no indictment had been found against him within the two years. The offence, however, was such as is specified in the amendment, and was committed by him while holding such an office as therein mentioned.

The question presented for decision is, whether the legislation of 1879 is, as to him, constitutional. The prohibition against ex post facto laws contained in the constitution of the United States and the constitution of this state is aimed at and was designed to shield the citizen against the arbitrary power of the legislature. The evil apprehended, and against which it was intended to guard, was the oppression of the citizen by means of legislation the effect of which is to render him amenable to criminal punishment for past transactions, to which he would not have been liable except by means of the legislation.

That in ascertaining what legislation is within the prohibition we are not to be confined to any definition less extensive than the evil sought to be guarded against, is manifest from the course of judicial interpretation. The definition given by Blaekstone, for example, falls far short of the description given by Justice Chase in Calder v. Bull, 3 Ball. 386, which has ever since that decision been regarded as within the limits of true interpretation. It is conceded that that description or explanation did not amplify the meaning of the term, but merely expressed it more fully than it had been previously formally enunciated, and, from the fact that that more ample description has been accepted, the deduction is inevitable that in construing the provision, substance is mainly to be regarded. It follows that where the enactment-pin whatever guise legislative ingenuity or subtlety may present it, inflicts the substantial injury, and does the essential wrong which the constitution sought to guard against-, a true interpretation will hold it to be within the prohibition. Manifestly we are not to be circumscribed to the cases in which the legislature makes a crime of that which previously was no crime at all; for it is conceded that the prohibition is to be regarded as extending to even such legislation as merely deprives a party, guilty of an act which was a crime by law when it was done, of the opportunity of escape from the declared punishment which the law regulating the proof afforded him when the offence was committed; as by reducing the number of witnesses essential to warrant a conviction, or rendering competent, as witnesses, persons who by law were then incompetent. Such legislation deprives the offender of no protection to which he is morally entitled. It merely makes conviction of the crime possible where, perhaps, before it was impossible. It deprives him of a possible avenue of escape. The offence was a crime, when committed, and still continues to be so. And such interpretation is in accordance with true principle. Mr. Burrill, in his Law Dictionary, defines an ex post facto law to be one which operates by after-enactments. Law Diet. 447. Judge Chase, in Calder v. Bull, says the plain and obvious meaning and intention of the prohibition is that the legislature shall not pass laws after a fact done by a citizen which shall have relation to such fact and punish him for having done it. “With a manly nation,” says Dr. Lieber, “let everything that is in favor of power be closely construed ; everything in favor of the security of the citizen and the protection of the individual, comprehensively, for the simple reason that power is power, which is able to take care of itself, and tends by its nature to increase, while the citizen wants protection.” Lieber’s Leg. & Pol. Her. 178.

In the case in hand, on the 14th of March, 1879, the date of the approval of the act of the legislature under consideration, the offence of which Moore was convicted had become barred by statute. It was therefore, by virtue of existing legislative enactment, at that date wholly dispunishable, and he was as free from all criminal consequences of it as if it had never been committed. Without new legislation, he could not have been punished for it. He had acquired immunity, and the legal limitation was his protection and his sure defence. After he had thus, by operation of the statute, been discharged from all criminal liability, the legislature passed the act now under judicial scrutiny, which provides that persons, of whom he was in fact one, who had held certain offices, might be prosecuted, tried and punished for the offence, where the indictment was found, in five years from the time of committing the offence; thus extending the limitation for three years. This act, then, in his ease, created a liability to punishment for a past offence, from all criminal consequences of which he stood discharged. While it did not make a crime of that which previously was no crime, it made that punishable as a crime which was not so punishable when it was passed, and which, without it, was not punishable at all. In effect, it made that a crime which had ceased to be such, legally. That such legislation is reprehensible and extremely dangerous admits of no manner of question. In my judgment, it is, as to all persons whose offences were dispunishable by reason of the limitation when the act was passed, within the constitutional prohibition, for it violates the essential principle and does the substantial injury against which the prohibition is directed.

It is also liable to the objection that it is in violation of the vested rights of all such persons. “ Every law,” says Judge Cooley, using the language of Judge Chase in Calder v. Bull, “ that takes away or impairs rights vested agreeably to existing laws, is retrospective, and is generally unjust, and may be oppressive; and there is a good general rule that a law should have no retrospect.” Const. Lim. 265. It has been held in this state that where a right of action has become barred under a statute of limitations, the statutory defence is a vested right that cannot be impaired by subsequent legislation. Ryder v. Wilson's Ex’r, 12 Vroom 9. Though the adjudication there was upon a claim of civil right merely, it seems to follow that a like defence in reference to a criminal offence should no less be regarded as a vested right. It would seem clear that, if the citizen may confidently rely for the protection of his property on the law of limitation, he should be equally able to do so where his life or liberty and reputation as well as his estate, are involved in a criminal charge. It matters not that the theory on which the protection from contracts by limitation may be rested—that the existing statute of limitation is to be regarded as constituting part of the contract—is inapplicable to the claim of protection under a limitation as to criminal offence; for it is an abundantly sufficient reason why the protection of the latter should be held sacred that the legislature has the power to declare the immunity, and has done so, and that the offender has by its terms become entitled to it. Moreover, in Ryder v. Wilson’s Ex’r, which was a case where an executor claimed the benefit of an existing statute of limitation in no wise connected with contract, but protecting him from suit for a debt of his testator, the decision was rested on the broad basis of vested right to the benefit of the enactment merely, on the ground that while it existed, the executor had become entitled to it. And it was held that he could not be deprived of it by subsequent legislation, although it was a mere positive regulation designed to facilitate executors • and administrators in the settlement of estates.

The legislature cannot deprive an offender of the benefit of the immunity of an amnesty, and it seems equally clear that on the same principle it cannot deprive him of the benefit of a limitation after he has become entitled to it by the expiration of the period limited. The distinction which may be drawn between the two legislative acts does not constitute an essential difference in- the application of the principle. An amnesty extends the grace of pardon to criminals before conviction. It in effect declares that the government will treat them as if the offence had never been committed, and that the offender shall be free from the legal consequences of his crime. An act of limitation declares that the offender shall not be punished unless the state prosecutes him within a limited period. When the period has elapsed, the unindicted offender is, to all intents and purposes, amnestied by the limitation. In both cases, whether of amnesty or limitation, the legislature recognizes the fact that a crime has been committed, and of grace declares immunity to the offender. Both rest on the same foundation—legislative grace to offenders—and it matters not, in principle, whether the act of grace be extended in the one-way or the other; in either case the offender is enti-. tied to hold the benefit of it.

The judgment of the Supreme Court should be reversed.