indictment for the same is found by a grand jury within five years after such capital offence is committed. (Act of July 25, 1868, § 1.) ing a system of criminal jurisprudence, and likewise a general power of legislation as to crimes, I should think that this exception of wilful murder and forgery designated the whole class of offences embraced in those respective denominations, and that the legislative meaning of the words was that there should be no limitation of time for prosecutions of such offences. Many reasons on the face of the act for such an interpretation of it might be suggested, and the word aforesaid, as used in it, might, under such a system of government, be reconcilable with such an interpretation. But whatever opinion may have prevailed in congress at the date of the act of 1790, there is no federal jurisprudence; and, therefore, no offence against the United States could legally constitute a crime until made such by an act of legislation. We are bound to presume that the act was passed with a knowledge, in this respect, of the law. A mistake of law cannot be imputed to legislators, unless it is apparent in the language of their legislation, and even when their language seems to indicate it, it should never be imputed without extreme caution. In the present instance, no such mistake on the subject is apparent; and, therefore, none should be imputed. Now, neither the crime of wilful murder, nor that of forgery, as an offence against the United States, could be cognizable as a capital offence aforesaid, unless it had been provided for in this act, because it was the first act in the federal code of criminal legislation. Supposing, therefore, that the question could be relieved, as possibly it might, of the effect of the single word capital, I do not see how the word aforesaid in this clause of the act can be safely disregarded. "With great doubt upon the subject, in the absence of all pertinent authority except the single decision in 2 Cranch, which has been mentioned, I instruct you that the limitation of time contained in the act of 1790 applies to the crimes in question, which are made felonies, but not capital offences, by the acts of 1823 and 1825. "But if you believe, as you probably do, that the defendant fled from justice on the 19th of February, 1854, the time between this date and the finding of these bills of indictment in the next following month of March, should be disregarded. The counsel for the prosecution have asked me to instruct you that, under the words of the act of 1790, you can go back still further to the 7th of February, when the defendant was first arrested by the deputy marshal, which they say was the time when the prosecution was instituted. The words of the act in the clause in question are, unless the indictment or information shall be found or instituted within two years,' &c. But I am of opinion that the word instituted applies to the proceeding by information, and the word found, to a proceeding by indictment. This opinion is confirmed by a recurrence to the phraseology of the prior clause of the act. Consequently, I do not think that the prosecution can go back to a date prior to that of the defendant's flight on the 19th of February, 1854. I advise you, therefore, if you view the evidence as I do, to take this date as the time. "Under these views, the prosecution under the two indictments upon the original Russell papers is barred by The time for finding indictments in the courts of the United States, in the late rebel states, for offences 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 said states are, or may be restored to representation in congress: Provided, however, that the provisions hereof shall not apply to treason or other political offences. (Act of March 3, 1869. As to effect of this act see post, § 444 a (close of note b). [For purposes of condensation, the remaining statutes heretofore given on this topic are here omitted; they will be found in the 6th ed. § 436-444. 2. Construction of Statutes. (a.) Construction to be liberal to Defendant. § 444 a. A mistake is sometimes made in applying to statutes of limitations in criminal suits the construction that has been given lapse of time. The two indictments upon the subsequent Russell powers of attorney of the year 1853, are not in any manner affected by lapse of time. The two other indictments, which are those in the Lytle case, require more particular consideration. As to the papers mentioned in these indictments, no act of the defendant appears to have been performed in this district after the 19th of February, 1852, when they were transmitted by letter to Washington. His flight, according to the testimony which I have already quoted, occurred on the same day of the same month, in the year 1854. Unless the 19th of February, 1854, was 'within two years from' the 19th of February, 1852, in the sense in which the words of limitation are used in the act of 1790, the prosecution under these two indictments is barred. I should have had no doubt that an indictment found on the second anniversary was too late, if it had not been for the contrast of the phraseology in the two clauses of the 32d section of the act of 1790. The prior clause bars prosecutions in certain cases, unless the indictment is found within three years next after the' offence committed. The subsequent clause now in question bars the prosecution, unless the indictment is found within two years from the time of committing the offence. If either phraseology had been adopted in both clauses, the prosecution would be barred. The only question is, whether the contrast in phraseology warrants a distinction which, in the interpretation of this act, would, under one of its clauses, include, and, under the other clause, exclude the anniversary. This would be contrary to established rules for interpreting statutes of limitation. See 5 Barnw. & Alders. 215; 3 Brod. & Bing. 227; 10 Serg. & Raw. 211; 1 Watts, 17; 3 Harris & McH. 258, 289, 294, 297, 301, 317; 5 Cranch Circuit Court Rep. Such statutes are so construed that the application of their several clauses may, if possible, be uniform, notwithstanding variances in their phraseology. I am, therefore, of opinion that the prosecution under these two indictments is barred." The two classes of stat to statutes of limitation in civil suits. utes, however, are essentially different. In civil suits the statute is interposed by the legislature as an impartial arbiter between two contending parties. In the construction of the statute, therefore, there is no intendment to be made in favor of either party. Neither grants the right to the other; there is therefore no grantor against whom the ordinary presumptions of construction are to be made. But it is otherwise when a statute of limitation is granted by the state. Here the state is the grantor, surrendering by act of grace its right to prosecute, and declaring the offence to be no longer the subject of prosecution. The statute is not a statute of process, to be scantily and grudgingly applied, but an amnesty, declaring that after a certain time oblivion shall be cast over the offence; that the offender shall be at liberty to return to his country, and resume his immunities as a citizen, and that from henceforth he may cease to preserve the proofs of his innocence, for the proofs of his guilt are blotted out. Hence it is that statutes of limitation are to be liberally construed in favor of the defendant, not only because such liberality of construction belongs to all acts of amnesty and grace, but because the very existence of the statute is a recognition and notification by the legislature of the fact that time, while it gradually wears out proofs of innocence, has assigned to it fixed and positive periods in which it destroys proofs of guilt. a Independently of these views, it must a This is powerfully exhibited in a famous metaphor by Lord Plunkett, of which it is said by Lord Brougham (Works, &c. Edinb. ed. of 1872, iv. 341), that it cannot be too much admired for the perfect appropriateness of the figure, its striking and complete resemblance, as well as its raising before us an image previously familiar to the mind in all particulars, except its connection with the subject for which it is so unexpectedly but naturally introduced." Time,” so runs this celebrated passage, “ with his scythe in his hand, is ever mowing down the evidences of title; wherefore the wisdom of the law plants in his other hand the hour-glass, by which he metes out the periods of that possession that shall supply the place of the muniments his scythe has destroyed." In other words, the defence of the statute of limitations is one not merely of technical process, to be grudgingly applied, but of right and wise reason, and, therefore, to be generously dispensed. The same thought is to be found in another great orator: λάβε δέ μοι καὶ τὸν τῆς προθεσμίας νόμον .... δοκεῖ γάρ μοι καὶ ὁ Σόλων οὐδενὸς ἄλλου ἕνεκα θεῖναι αὐτὸν, ἢ τοῦ μὴ συκοφαντεῖσθαι ὑμᾶς. τοῖς μὲν γὰρ ἀδικουμένοις ἱκανὰ τὰ πέντε ἔτη ἡγήσατο εἶναι εἰσπράξασθαι, κατὰ δὲ τῶν ψευδομένων τὸν χρόνον ἅμα ἐπειδὴ ἀδύνατον ἔγνω ὂν τούς τε συμἐνόμισε σαφέστατον ἔλεγχον ἔσεσθαι. καὶ βαλόντας καὶ τοὺς μάρτυρας ἀεὶ ζῇν, τὸν νόμον ἀντὶ τούτων ἔθηκεν, ὅπως μάρτυς εἴτ Toû dikalov Toîs èphμois. — Demosthenes, pro Phorm. ed. Reiske, p. 952. be remembered that delay in instituting prosecutions, is not only productive of expense to the state, but of peril to public justice in the attenuation and distortion, even by mere natural lapse of memory, of testimony. It is the policy of the law that prosecutions should be prompt, and that statutes enforcing such promptitude should be vigorously maintained. They are not merely acts of grace, but checks imposed by the state upon itself, to exact vigilant activity upon its subalterns, and to secure for criminal trials the best evidence that can be obtained. b The early English common law, based as it was on a rough lex talionis, knew nothing of such limitations, and even for some time after their introduction, they were viewed as mere acts of process, to be construed in doubtful cases against the defendant, and not as acts of grace. It is remarkable that in this, as well as in other points connected with the definition and punishment of crime, we find much greater humanity in the Roman law. Perhaps the reason may be found in the fact that the English system, so far as crimes are concerned, was based on the old Germanic codes, which, while they recognized certain rude immunities in the lords, as against the emperor, vested no rights whatever in the vassal, as against the lord; while, on the other hand, the Roman law viewed all freemen of the empire, noble or simple, as endowed with equal unalienable rights, which no one could interfere with but the emperor, and he, after Justinian, only by a fixed code. This idea was adopted by the countries accepting the Roman common law. See Kostlin, System I. § 128. Hoorebeke l. c. p. 54-59. "Que le crime soit demeuré caché, même à l'aide de manoeuvres employées par le coupable ou qu'il ait été découvert; que le coupable se soit absenté du territoire ou qu'il y soit resté; qu'il ait obéi aux appels de la justice ou qu'il s'y soit soustrait, n'importe; le défaut de poursuites, pendant le temps fixé par la loi, n'en éteindra pas moins l'action publique." By the old Roman law, the general limitation was twenty years. "L. 3. D. de requir. vel absent. (48. 17.) . . . . quamcunque enim quaestionem apud fiscum, si non alia sit praescriptio, viginti annorum silentio praescribi, Divi principes voluerunt. L. 12. C. ad L. Corn. de fals. (9. 22.) Querela falsi temporalibus praescriptionibus non excluditur, nisi viginti annorum exceptione, sicut cetera quoque fere crimina. In embezzlements and peculations, however, in order to afford a protection against frivolous accusations, the limitation as reduced to five years. L. 7, D. ad L. Jul. pecul. (48. 13.) and so as to other crimes specified as follows: L. 2. 9. § 6. D. ad L. Iul. de adult. (48. 5.) See, fully, Geib, Lehrbuch, &c., § 81. The revolution in the English common law in this respect is strikingly illustrated by the equitable extension of the statute to cases where the prosecution is suspicious, and marked by unwarrantable delay. See post, § 449 b. Another important point here to be noticed is that, by the Roman common law, these statutes, being acts of grace or oblivion, and not of process, extinguished all future prosecution. When once the statute fell, the offence was blotted out, and could not be again called into existence at the caprice of (b.) Statute need not be specially pleaded. § 445. Although on this point there has been some faltering, the rule is now generally accepted that the plea may be taken advantage of on the general issue. c (c.) Indictment should aver Offence within Statute, or, if excluded by Statute, should, by strict Practice, aver Facts of Exception. § 446. On this topic, also, the courts have wavered; and it has been sometimes held that though the offence, on the face of the indictment, is outside of the statute, yet the prosecution may prove, without averring it in the indictment, that the defendant, having fled the state, was within the exceptions of the statute. d Where this view obtains, the fact that the offence is on the face of the indictment prima facie barred, cannot be taken advantage of by demurrer, or motion to quash, nor, a fortiori, by arrest of judgment. h1 The more exact course is to state the time correctly in the in the prince. An extraordinary con trast to this is to be found in the act . of congress of March 3, 1869, by which the time for finding indictments in the "late rebel states" is extended for the period of two years from and after said states are restored to representation in congress. So far as this statute undertakes to authorize prosecutions for offences which prior statutes of limitations have cancelled, it is not merely an ex post facto law, and hence void, but is void in undertaking to make punishable an offence which has previously been extinguished by an act of grace. This statute has never been judicially invoked, and is now practically expired. But it is important here to touch the principle as applicatory to any future legislative attempts to institute prosecutions for offences which prior statutes have cancelled. c Com. v. Ruffner, 28 Penns. St. (4 Casey) 259; State v. Robinson, 9 Foster, 274; McLane, v. State, 4 Ga. 335; U. S. v. Watkins, 3 Cranch C. C. 341; U. S. r. White, 5 Cranch, 73; State v. Hussey, 7 lowa, 409; State v. Bowling, 10 Humph. 52; Hatwood v. State, 8 Ind. 492; U. S. v. Smith, 4 Day, 121; R. v. Phillips, R. & R. 369; though see Com. v. Hutchinson, 2 Parsons, 453; People v. Roe, 5 Parker C. R. 231. See as to duplicity in such pleas, U. S. v. Shorey, 9 Int. Rev. Rec. 201. d U. S. v. Cooke, Sup. Court U. S. 1873; reported in Am. Law Reg. Nov. 1873; and see learned note thereto; U. S. v. White, 5 Cranch C. C. 73; People v. Van Santvoord, 9 Cow. 655; State v. Bowling, 10 Humph. 52; Com. v. Hutchinson, 2 Parsons, 453; U. S. v. Ballard, 3 McLean, 469. h1 U. S. r. Cooke; People v. Van Santvoord; U. S. v. White, ut supra ; State v. Howard, 15 Rich. (S. C.); State v. Hussey, 7 Iowa, 409. |