No. 59.

128 U.S. 398 (1888)


Supreme Court of United States.

Decided November 19, 1888.

Attorney(s) appearing for the Case

Mr. Solicitor General for plaintiffs in error.

No appearance for defendant in error.

MR. JUSTICE LAMAR, after stating the facts as above reported, delivered the opinion of the court.

It is conceded that, under the general principles of the common law, the repeal of a penal statute operates as a remission of all penalties for violations of it committed before its repeal, and a release from prosecution therefor after said repeal, unless there be either a clause in the repealing statute, or a provision of some other statute, expressly authorizing such prosecution. In this case the court is of the opinion that § 13, Rev. Stat., contains such provision. It reads as follows: "The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing act shall so expressly provide; and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability."

This section, we think, clearly excepts offences committed before the passage of the repealing act of 1884. To show this, it is only necessary to read the act of 1884 in connection with § 13, Rev. Stat., as one act. It would then read substantially as follows: "Be it enacted, etc., That the act entitled `An act relating to claim agents and attorneys in pension cases,' approved June 20, 1878, is hereby repealed: Provided, that said repeal shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred thereunder, and that the same shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty or liability."

The only ground upon which the correctness of this interpretation may be doubted is, that the words "penalty," "liability," and "forfeiture" do not apply to crimes, and the punishments therefor, such as we are now considering. We cannot assent to this. These words have been used by the great masters of crown law and the elementary writers as synonymous with the word "punishment," in connection with crimes of the highest grade. Thus, Blackstone speaks of criminal law as that "branch of jurisprudence which teaches of the nature, extent, and degrees of every crime, and adjusts to it its adequate and necessary penalty." Alluding to the importance of this department of legal science, he says: "The enacting of penalties to which a whole nation shall be subject should be calmly and maturely considered." Referring to the unwise policy of inflicting capital punishment for certain comparatively slight offences, he speaks of them as "these outrageous penalties," and repeatedly refers to laws that inflict the "penalty of death." He refers to other acts prescribing certain punishments for treason as "acts of pains and penalties."

That the legislature intended that this 13th section should apply to all offences is shown by § 5598, Rev. Stat., under the title of "Repealed Provisions," which is as follows: "All offences committed and all penalties or forfeitures incurred under any statute embraced in said revision prior to said repeal, may be prosecuted and punished in the same manner and with the same effect as if said repeal had not been made."

It was the obvious intention of § 13, Rev. Stat., to extend this provision to the repeal of any statute not embraced in such revision.

The views we have expressed find support in the case of United States v. Ulrici, 3 Dillon, 532, 534, which was an indictment for conspiring to defraud the government of internal revenue taxes. It became necessary there to determine the meaning of the words "penalty," "forfeiture," "liability," and "prosecution," in § 13 of the Revised Statutes. The court, speaking by Mr. Justice Miller, said: "But, without attempting to go into a precise technical definition of each of these words, it is my opinion that they were used by Congress to include all forms of punishment for crime; and, as strong evidence of this view, I found, during the progress of the argument, and called the attention of the counsel to a section, which prescribed fine and imprisonment for two years, wherein Congress used the words: `Shall be liable to a penalty of not less than one thousand dollars, ... and to imprisonment not more than two years.' Moreover, any man using common language might say, and very properly, that Congress had subjected a party to a liability, and, if asked what liability, might reply, a liability to be imprisoned. This is a very general use of language, and surely it would not be understood as denoting a civil proceeding. I think, therefore, that this word `liability' is intended to cover every form of punishment to which a man subjects himself, by violating the common laws of the country. Besides, as my brother Treat reminds me, the word `prosecution' is used in this section, and that usually denotes a criminal proceeding."

For the reasons we have given, the question presented by the certificate is answered in the affirmative.


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