WASHINGTON, Circuit Justice,
charged the jury. As it is the opinion of the court, that the law is in favour of the defendant, I shall spare the jury and myself the trouble of going through the evidence. If, in the opinion of the jury, it is insufficient to establish the fact against the defendant, I would not wish to disturb that opinion; if it has a different operation, I shall not press it against him. But I must notice one of the observations made by Mr. Dickerson, lest those who heard it might suppose it had received the countenance of this court; and it is this, that the defendant, having a bill of sale for the brig, might, under the circumstances of the case, have taken an oath that he was owner of her, without committing perjury. It is true, that where a mistake is shown to be the result of a misconstruction of a paper, it is not perjury; but no such misconstruction could take place in a case like this. The oath must be considered in reference to the subject and occasion of it. It was taken for the purpose of disclosing the property and effects belonging to the bankrupt. The defendant, if Daniel’s evidence is believed, was a mere nominal owner, made so with his own consent, and with a view, understood by him, to cover Daniel’s property under his name. In no sense of the word could he suppose that he owned, or had a property in the vessel. Such a doctrine would defeat the important provisions of our navigation law, if a citizen might cover the property of aliens, and yet safely swear that he was the owner.
Every offence for which a man is indicted, must be laid against some law, and it must be shown to come within it. Such law may be the general unwritten or common law, or the statute law. The offence must not only come within the terms of such law, but the law itself must, at the time, be subsisting. It is a clear rule, that if a statute create an offence, and is then repealed, no prosecution can be instituted for any of-fence committed against the statute, previous to its repeal. The end of punishment is not only to correct the offender, but to deter others from committing like offences. But, if the legislature has ceased to consider the act in the light of an offence, those purposes are no longer to be answered, and punishment is ’then unnecessary. Perjury is said to be malum in se. Ealse oaths of all kinds are prohibited by tb,e divine law; but civil Institutions punish them only in certain cases, and upon reasons of policy. A false oath taken before the commissioners of bankruptcy, was declared to be perjury, and subjected the offender to punishment; but, the moment the law was repealed, it [1035]*1035remained a false oath, but ceased to be an •offence punishable by municipal law. There are many offences that are mala in se, which are not prohibited by human laws; and, therefore, if in any case they should, by such laws, be deemed criminal and made punishable, the repeal of those laws places the acts committed under them, upon the same ground as they were before the laws passed.
As to civil rights, the rule is, that rights acquired under, or barred by an existing law, are not defeated by the repeal of the law. In short, the cases which were cited at the bar, and the language which the legislature of the United States has used in the cases cited, when it has intended to •except out of the operation of the repealing law, prosecution for offences committed before the repeal, are conclusive to show that the above doctrine is not to be shaken.
The next question is, to what extent was the bankrupt law repealed by the act of the 19th of December, 1803? [2 Stat. 248.] Until we come to the proviso, it is a general and absolute repeal. Had it stopped here, what would have been the consequence? That all commissions then proceeded in, to various points of their execution, must have been arrested, and infinite mischief have been produced. A proviso is always intended to limit the generality of the enacting clause, or to save or except certain cases out of its •operation. If the proviso be ambiguous, its explanation may best be obtained by understanding the scope of the enacting clause, -and discovering the mischief to be remedied. Now, here the mischief would have been what I have stated, and the proviso applies precisely to, and remedies it. It declares, that “the repeal shall in no wise affect the execution of any commission of bankruptcy, which may have been issued prior to the passing of this act, but every such commission shall be proceeded in, and fully executed, as if this act had not been passed.” The commissions then are still to go until finally executed. But what has the punishment of a perjury previously committed, to •do with the progress of such a commission to its final execution? I have no doubt, though it is not now necessary to decide the point, that even in the defendant’s commission, though he has obtained a certificate, yet if it be not to be considered as finally •executed; and in all other commissions not so executed, should perjury • be committed after the repeal, it may be punished; because if otherwise, it would affect the final execution. The difference is this: in the construction which I give to the proviso, I give it a prospective operation; that contended for by the attorney, gives it a retrospective operation, a construction not favoured in civil, much less in criminal cases. In the cases of future perjury, the not punishing them would .affect the execution of the commission, but not so as to perjuries previously committed. Upon the whole, if the legislature intended to except from the operation of the repealing clause all cases where commissions had previously issued, it was easy to have expressed such intention generally, and not confine the proviso to the execution of commissions; and in every instance where they did intend to leave open to prosecution, offences committed before the repeal, they have declared it in plain unambiguous terms.
If, then, the indictment cannot be supported upon the first count against the bankrupt law, can it be sustained upon the second, as against the general criminal law of the United States? If the case could' be brought clearly within the 18th section of this law, no doubt that the indictment might be supported. But this section plainly refers to perjuries committed in judicial proceedings, whether orally, or by deposition. The words relied upon by the attorney cannot, I think, be construed to extend the crime of perjury to all cases of depositions taken under the authority of the United States, because that would be to make the same false oath perjury, and punishable if put into the form of a deposition, which would be dispunishable if given orally. This would be a great absurdity; but, if it be construed to extend to depositions taken in judicial proceedings, then the consequence will be, that false oaths taken in judicial proceedings, whether orally or' by deposition, when taken under the authority of the United States; are declared to be perjury. Besides, if the construction contended for be correct, the many laws declaring what should be perjury in particular cases, would have been unnecessary. And what is conclusive upon this point is, that, admitting the construction, the defendant has not committed this perjury in any deposition; for the answer taken down by the secretary in this case, though committed by him to writing, cannot be called a deposition.
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WASHINGTON, Circuit Justice,
charged the jury. As it is the opinion of the court, that the law is in favour of the defendant, I shall spare the jury and myself the trouble of going through the evidence. If, in the opinion of the jury, it is insufficient to establish the fact against the defendant, I would not wish to disturb that opinion; if it has a different operation, I shall not press it against him. But I must notice one of the observations made by Mr. Dickerson, lest those who heard it might suppose it had received the countenance of this court; and it is this, that the defendant, having a bill of sale for the brig, might, under the circumstances of the case, have taken an oath that he was owner of her, without committing perjury. It is true, that where a mistake is shown to be the result of a misconstruction of a paper, it is not perjury; but no such misconstruction could take place in a case like this. The oath must be considered in reference to the subject and occasion of it. It was taken for the purpose of disclosing the property and effects belonging to the bankrupt. The defendant, if Daniel’s evidence is believed, was a mere nominal owner, made so with his own consent, and with a view, understood by him, to cover Daniel’s property under his name. In no sense of the word could he suppose that he owned, or had a property in the vessel. Such a doctrine would defeat the important provisions of our navigation law, if a citizen might cover the property of aliens, and yet safely swear that he was the owner.
Every offence for which a man is indicted, must be laid against some law, and it must be shown to come within it. Such law may be the general unwritten or common law, or the statute law. The offence must not only come within the terms of such law, but the law itself must, at the time, be subsisting. It is a clear rule, that if a statute create an offence, and is then repealed, no prosecution can be instituted for any of-fence committed against the statute, previous to its repeal. The end of punishment is not only to correct the offender, but to deter others from committing like offences. But, if the legislature has ceased to consider the act in the light of an offence, those purposes are no longer to be answered, and punishment is ’then unnecessary. Perjury is said to be malum in se. Ealse oaths of all kinds are prohibited by tb,e divine law; but civil Institutions punish them only in certain cases, and upon reasons of policy. A false oath taken before the commissioners of bankruptcy, was declared to be perjury, and subjected the offender to punishment; but, the moment the law was repealed, it [1035]*1035remained a false oath, but ceased to be an •offence punishable by municipal law. There are many offences that are mala in se, which are not prohibited by human laws; and, therefore, if in any case they should, by such laws, be deemed criminal and made punishable, the repeal of those laws places the acts committed under them, upon the same ground as they were before the laws passed.
As to civil rights, the rule is, that rights acquired under, or barred by an existing law, are not defeated by the repeal of the law. In short, the cases which were cited at the bar, and the language which the legislature of the United States has used in the cases cited, when it has intended to •except out of the operation of the repealing law, prosecution for offences committed before the repeal, are conclusive to show that the above doctrine is not to be shaken.
The next question is, to what extent was the bankrupt law repealed by the act of the 19th of December, 1803? [2 Stat. 248.] Until we come to the proviso, it is a general and absolute repeal. Had it stopped here, what would have been the consequence? That all commissions then proceeded in, to various points of their execution, must have been arrested, and infinite mischief have been produced. A proviso is always intended to limit the generality of the enacting clause, or to save or except certain cases out of its •operation. If the proviso be ambiguous, its explanation may best be obtained by understanding the scope of the enacting clause, -and discovering the mischief to be remedied. Now, here the mischief would have been what I have stated, and the proviso applies precisely to, and remedies it. It declares, that “the repeal shall in no wise affect the execution of any commission of bankruptcy, which may have been issued prior to the passing of this act, but every such commission shall be proceeded in, and fully executed, as if this act had not been passed.” The commissions then are still to go until finally executed. But what has the punishment of a perjury previously committed, to •do with the progress of such a commission to its final execution? I have no doubt, though it is not now necessary to decide the point, that even in the defendant’s commission, though he has obtained a certificate, yet if it be not to be considered as finally •executed; and in all other commissions not so executed, should perjury • be committed after the repeal, it may be punished; because if otherwise, it would affect the final execution. The difference is this: in the construction which I give to the proviso, I give it a prospective operation; that contended for by the attorney, gives it a retrospective operation, a construction not favoured in civil, much less in criminal cases. In the cases of future perjury, the not punishing them would .affect the execution of the commission, but not so as to perjuries previously committed. Upon the whole, if the legislature intended to except from the operation of the repealing clause all cases where commissions had previously issued, it was easy to have expressed such intention generally, and not confine the proviso to the execution of commissions; and in every instance where they did intend to leave open to prosecution, offences committed before the repeal, they have declared it in plain unambiguous terms.
If, then, the indictment cannot be supported upon the first count against the bankrupt law, can it be sustained upon the second, as against the general criminal law of the United States? If the case could' be brought clearly within the 18th section of this law, no doubt that the indictment might be supported. But this section plainly refers to perjuries committed in judicial proceedings, whether orally, or by deposition. The words relied upon by the attorney cannot, I think, be construed to extend the crime of perjury to all cases of depositions taken under the authority of the United States, because that would be to make the same false oath perjury, and punishable if put into the form of a deposition, which would be dispunishable if given orally. This would be a great absurdity; but, if it be construed to extend to depositions taken in judicial proceedings, then the consequence will be, that false oaths taken in judicial proceedings, whether orally or' by deposition, when taken under the authority of the United States; are declared to be perjury. Besides, if the construction contended for be correct, the many laws declaring what should be perjury in particular cases, would have been unnecessary. And what is conclusive upon this point is, that, admitting the construction, the defendant has not committed this perjury in any deposition; for the answer taken down by the secretary in this case, though committed by him to writing, cannot be called a deposition. But if the defendant can be indicted under the general law now, he might have been before the repeal of the bankrupt law — if so, he might upon conviction have been punished with fine, imprisonment, and pillory; although under the bankrupt law, the punishment was confined to imprisonment only, which proves either that false oaths, taken in judicial proceedings, are not made punishable by the law in question; or if they were, that the law quoad oaths, taken before commissioners of bankruptcy, was repealed by that law; for otherwise the legislative declaration of what should be the punishment in such a case, would be defeated by the prior law, and the act of the public officer in preferring to indict under it. A bankrupt, though deprived of every thing, and therefore excused from paying a fine under the bankrupt law, might be fined to the amount of 800 dollars under the general law. This cannot be contended for. If then the defendant could not .have been indicted under the general law, had the bankrupt law been still in force, to say that [1036]*1036he can. be so indicted after the repeal, would be to place him in a worse situation by the repeal than he was before it, whereas the effect of the repeal was to excuse, or rather to render him dispunishable for this offence
(NOTE. Rev. St. 17. S. §13, (Act Feb. 25,1871,) provides that “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 expressly so provide." In U. S. v. Ulrici, Case No. 16,594, this section was held to apply to indictments for criminal offenses.]
If he cannot be indicted under either of those laws, can the common law be pressed into the service? I think not; and for the same reasons I have assigned why he cannot be indicted under the general criminal law. First. Because the common law description of perjury is, a false oath taken in some judicial proceeding in a matter material to the issue, and the punishment is fine and imprisonment. In this case the of-fence does not answer the description, and the punishment is different.
The jury found the defendant not guilty.