same day each pleaded "not guilty" and was held to bail to await the action of the grand jury. Parker and Keating were admitted to bail upon April 27, 1901, Cadarr and Myers on May 7, 1901, they having been under commitment meanwhile. No further proceedings were had against any of them until March 31, 1902, on which day, more than eleven months after the holding over, the grand jury returned into the Supreme Court of the District of Columbia an indictment charging them jointly as in the original affidavit.

Upon April 4, 1902, Cadarr, Keating, and Myers each pleaded "not guilty" as did Parker upon April 7th. On May 1, 1902, Parker withdrew his plea of not guilty and filed a motion to quash the indictment, basing his motion upon the provisions of $939 of the District Code, which are as follows:

"Sec. 939. Abandonment of Prosecution.-If any person charged with a criminal offense shall have been committed or held to bail to await the action of the grand jury, and within nine months thereafter the grand jury shall not have taken action on the case, either by ignoring the charge or by returning an indictment into the proper court, the prosecution of such charge shall be deemed to have been abandoned and the accused shall be set free or his bail discharged, as the case may be: Provided, however, that the supreme court of the District of Columbia, holding a special term as a criminal court, or, in vacation, any justice of said court, upon good cause shown in writing, and, when practicable, upon due notice to the accused, may from time to time enlarge the time for the taking action in such case by the grand jury."

This motion was found by the court to be well taken, was sustained, and each of the defendants was discharged from the indictment without day. The case is here upon appeal from this order.

Although the plea of not guilty was technically withdrawn by only Parker, yet it is manifest from the general nature of the discharge that the situation below was such that the others were availing themselves of Parker's motion, although without the VOL. XXIV-10

formal withdrawal of their pleas, and that the court below and the respective counsel so regarded it.

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It is suggested that appeal by the United States does not lie. Code, 935, provides: "In all criminal prosecutions the United States * * * shall have the same right of appeal that is given to the defendant ;" the right of appeal given to the defendant according to § 226 is from "any final order, judgment or decree of the supreme court of the District of Columbia;" the order appealed from at bar discharged the appellees from the indictment without day, and was therefore a final order and the appeal is properly here.

The

It is contended by Mr. United States Attorney that § 939 does not apply to the case at bar for the reason, as he says, that the offense charged was committed prior to its enactment. Code was passed March 30, 1901, and came into effect January 1, 1902. The appellees were arrested on April 25, 1901, and the same day were held to await the action of the grand jury and gave bond: when the Code became operative January 1, 1902, the charge was pending.

It is urged that "upon the familiar rule that statutes are construed to operate upon future matters and not retrospectively, 8 939 can have no effect upon these prosecutions;" "these prosecutions" were not yet passed, but present and future with respect to the time when the statute became operative; had been inaugurated before, pended at the time, and appear to be still continuing at least according to the proceeding at bar: so that the propriety of applying the rule to which we are invited, is not Inanifest to a degree of clearness which is calculated to make it attractive. That which is not yet come to its end is still of the present; and so with a prosecution which the Code when coming to be the operative law, found in existence; § 939 does not directly deal with substantive offenses, but only with criminal charges which are endeavored to be formulated upon them. If it be questioned, does § 939 reach back to a prior offense? It is answered, no! but § 939 takes hold upon current prosecutions of past offenses, prosecutions which coexist with it: and if its effect upon prosecution as distinguished from the offense is such that

prosecutions are at length prohibited, judicial inquiry into the offense as such, is likewise at an end. So that the question of retroactive operation of statutes is not here, and we are at no need for discussing it.

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The question is this: Does the Code apply to proceedings which were pending when it took effect? Congress itself, through § 1638, speaks thus: "* Provided, That the provisions of this Code relating to procedure or practice and not affecting the substantial rights of parties shall apply to pending suits or proceedings civil or criminal."

What is the legal significance of the word "procedure?" The law "defines the rights which it will aid, and specifies the way in which it will aid them. So far as it defines, thereby creating, it is 'substantive law.' So far as it provides a method of aiding and protecting, it is 'adjective law' or procedure." Holland Jur., p. 78.

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'Sec. 2.

"The word 'procedure' as a law term is not well understood. * Fortunately, a distinguished writer on criminal law in America has adopted it as the title to a work Bishop, Crim. Proc. In his first chapter he undertakes to define what is meant by procedure. He says: He says: The term "procedure" is so broad in its signification that it is seldom employed in our books as a term of art. It includes in its meaning whatever is embraced by the three technical terms, pleading, evidence and practice.' And in defining practice, in this sense, he says: "The word means those legal rules which direct the course of proceeding to bring parties into the court and the course of the court after they are brought in.'" Kring v. Missouri, 107 U. S. 231, 232, 27 L. ed. 510, 2 Sup. Ct. Rep. 443. The term "procedure" is said by Lush, L. J., to denote "the mode of proceeding by which a legal right is enforced, as distinguished from the law which gives or defines the right, and which by means of the proceeding the court is to administer: the machinery as distinguished from its product." Poyser v. Minors, L. R. 7 Q. B. Div. 329-333.

"Adjective criminal law, 'penal procedure,' *

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is

the body of rules whereby the machinery of the courts is set in

motion for the punishment of offenders. It consists usually of two species; a simpler, * * applicable

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* only

to trifling transgressions: and a more solemn, for the trial of serious crimes. Each of these consists of several stages, having a strong resemblance to the stages of procedure in private law. In the more solemn procedure we may distinguish:

I. The choice of the proper jurisdiction.

II. The choice of the proper court.

III. The procedure proper, consisting of—

1. The summons, by which the accused is called upon, or the warrant, under which he is compelled, to appear to answer the charge.

2. The preliminary investigation, terminating in the discharge of the accused, or in his being committed for trial.

3. The measures insuring that the accused shall be forthcoming for trial, viz.: either imprisonment or security given by himself or his friends.

4. The pleadings, by which on the one hand the prosecution informs the court and the accused of the nature of the charge against him, and, on the other hand, the accused states the nature of his defense." Holland, Jur., pp. 334-335.

The section of the Code under consideration points out the next step appropriate to be taken in the cases of persons bailed or imprisoned without the formal pleading against them returned to the court during 9 months, and therefore relates to procedure. Neither does the section affect the "substantial rights" of the United States: for it does not affect its right to punish offenses, but only regulates the time in which the right shall be exercised: substantial rights are those the violation of which gives rise to a remedy, rather than the peculiar process through which the remedy is attained: so long as the right is not deprived of its remedy, the substance of the matter is not affected by a change in the duration of stages and steps which in any event must be passed on the way to the remedy: concerning these there are no vested rights.

"Alterations which do not increase the punishment, nor change the ingredients of the offense or the ultimate facts neces

sary to establish guilt, but-leaving untouched the nature of the crime and the amount or degree of proof essential to conviction -only remove existing restrictions upon the competency of certain classes of persons as witnesses, relate to modes of procedure only in which no one can be said to have a vested right, and which the State, upon grounds of public policy, may regulate at pleasure." Hopt v. Utah, 110 U. S. 574-590, 28 L. ed. 262268, 4 Sup. Ct. Rep. 202.

By differentiating questions of "procedure" from those of "substantial rights," Congress has by the very act pointed out that questions which turn out to be of procedure are thereby removed from the realm of substantial rights, at least for the purposes of the particular statute under consideration. The act applied to the prosecutions at bar. As to its meaning, the section concerns that step in the progress of a criminal prosecution which intervenes between the termination of proceedings in examining tribunals and the inauguration of proceedings in the tribunal of final jurisdiction; the latter is accomplished by the return into court of an indictment found by the grand jury. The section has nothing to do with hastening trial after indictment, for its provisions relate only to absence of indictment; "and within nine months thereafter the grand jury shall not have taken action on the case, either by ignoring the charge or by returning an indictment into the proper court, the prosecution of such charge shall be deemed to have been abandoned and the accused shall be set free or his bail discharged, as the case may be."

The phraseology "shall be set free or his bail discharged” is susceptible of two meanings: either, 1st: that he shall be set forever free from the substantive offense charged: or, 2d: that he shall be set free from only the specific charge of it then pending, and not free from the substance of the offense.

The first of the two constructions would altogether bar future indictment and trial: the second would sanction rearrest, indictment, and trial, even after a discharge had on account of the expiration of 9 months without action.

The question is, Which of the two meanings expresses the intention of Congress.