or place to another before any slaves were received on board. Taney, Ch. J. who delivered the opinion of the court, held, that in expounding a penal statute, the court certainly would not extend it beyond the plain meaning of its words-that such statutes must be construed strictly; yet the evident intention of the legislature ought not to be defeated by an over strict construction. That to be "employed” in any thing, meant not only the act of doing it, but also to be engaged to do it-to be under contract or orders to do it. And this not only was the ordinary meaning of the word, but it had been frequently used in that sense in other acts of Congress. Thus the second section of the act of March 3, 1825, entitled “An act to reduce into one the several acts establishing and regulating the post-office department," declares "That the postmaster-general, and all other persons 'employed' in the general post-office, or in the care, custody or conveyances of the mail, shall, previous to entering upon their duties assigned to them, take the oath prescribed to them." Here, the persons who had contracted to perform certain duties in the general post-office, were described as "employed" in that department before they enter upon the duties assigned them. So, also, in the twenty-first section of the same act, various offences, such as the embezzling or destroying any letter, are enumerated, and the punishment prescribed, when committed by any person "employed in any of the departments of the post-office establishment." Yet it could not be supposed the party must be actually engaged in transacting his official duties when the thing was embezzled or destroyed, in order to constitute the offence described in this section. So the act of July 2, 1813,(a) spoke of vessels "employed" in the fisheries before she

(a) 2 Story, 1353.

.

sailed on the voyage. So in the act of 3d March, 1831, (a) concerning vessels "employed" in the whale fishery, "authorized vessels employed wholly in the whale fishery to be registered in a particular manner, so long as such vessel shall be so employed." The registry, license and enrolment must be obtained before the vessel sailed on her outward voyage. Thus she was regarded as employed before she sails. In like manner this slave vessel was "employed" in the transportation of slaves within the meaning of the act, if she was sailing on her outward voyage to the African coast, in order to take them on board, to be transported to any foreign country. That it was not necessary, in order to constitute the offence denounced in the second section, that there should be an actual transportation or carrying of slaves in the vessel of the United States, on board of which the party indicted was alleged to serve, nor that there should be an actual transportation. That the voluntary service of an American citizen on board of a vessel of the United States, in a voyage commenced with the intent that the vessel should be employed and made use of in transporting or carrying of slaves from one foreign country or place to another, was in itself, and where no slaves had been transported in such vessel or received on board, an offence under the second section of this act.

§ 752. In another case,(b) the defendant was indicted under the statute of 1814, ch. 175, which provided, that if any person, not being authorized by the board of health or the selectmen of any town, should knowingly dig up, remove, or carry away, or aid or assist in digging up, &c., any human body or remains thereof, such person should be imprisoned, &c. It was contended that

(a) 4 Story, 2256.

(b) The Commonwealth v. Loring, 8 Pick. 370.

the indictment did not pursue the statute. The statute did not provide that the license of the selectmen of the town where the body was buried should be obtained ;— the words were, "any town in the commonwealth." Whatever might have been the intent of the legislature, there was nothing in the statute itself restraining it to narrower limits; and it was no answer to this objection to say that if this construction should be adopted, the statute would not affect its purpose. For it was not for the court to say what the legislature intended, except so far as they could determine it from the words of the act. The words of the statute were so express and unambiguous, there was no room for construction; and if there was any thing ambiguous, this being a penal statute, it must be taken according to its strict letter. Parsons, J. in answer to this position, admitted that the question arose from an unfortunate obscurity in the terms of the statute on which the indictment was founded. Taken chiefly without reference to the subject-matter, and the manifest intention and the object of the legislature, it would appear, that in order to sustain the indictment on the statute, it must be averred and proved that the board of health or selectmen of no town in the commonwealth had given license to do the act complained of. The consequence would be, as oral testimony alone could be admitted on criminal trials of facts provable by witnesses, that the officers of every town, to the number of three and four hundred, must be summoned, and give their personal attendance in the court where the prosecution was pending. The legislature never intended such an absurdity. But it was said, penal statutes admit of no latitude of construction; they were to be taken strictly, word for word, let the consequences be what they might. He held, it was true it was so laid down as a general rule, and the reason was, that the court should not be allowed to make that an offence which was not so

made by legislative enactment. But this rule did not exclude the application of common sense to the terms made use of in the act, in order to avoid an absurdity which the legislature ought not to be presumed to have intended. There were cases which showed this, although precedents were not required to sustain so reasonable a doctrine. (a) All these authorities went to show, that even penal statutes, though to be construed strictly as a general rule, were to receive such a construction as would conform to the intention of the legislature.

§ 753. The same principle was applied in this state.(b) In the case cited, the defendant was indicted under section 59, 2 R. S. 2 ed. 565, which provided, if any clerk or servant of any private person, should embezzle or convert to his own use, or take, make way with, or secrete, with intent to embezzle, or convert to his own use without the assent of his master, &c., any goods, &c., belonging to any other person, which shall come to his possession, or under his care by virtue of such employment, shall be punished, &c. It was contended, that the words "belonging to any other person" meant other person than the master of the servant, and that the defendant could not be punished for embezzling" the property of his master." That this offence was not within the terms of the statute. Savage, Ch. J. held, that these words meant belonging to any person other than the servant who had been guilty of the embezzlement; any other construction would impute to the legislature an absurdity. After adverting to the defects which existed in the common law, and the several statutes which have been passed to remedy those defects-the fact that these statutes, both in this country and England, had been passed

(a) Bac. Ab. Stat. I. 9; Heyden's case, 3 Co. 7; Rex v. Gage, 8 Mod. 65; Plow. 86; Soldier case, Cro. Car. 71.

(b) The People v. Hennesey, 15 Wendell's Reports, 147.

in reference to the two offences of embezzling the property of others and also that of their masters-he said: "The revised statutes were no doubt intended to embrace, and did embrace the pith of our former statutes, and also the statute of 39 Char. 3, c. 85." He then asks: "Can it be believed, that when the whole course of legislation on this subject has been aimed at the protection of the master or employer against the frauds of those necessarily entrusted with their property, the legislature, when revising and embodying previous statutes into a more simple form of enactment, should lose sight of the great object in view, and protect every person except those most liable to be defrauded? The sixtieth section shows that it was the intention of the legislature to go farther in favor of the master or employer, than of other persons, by making it an offence to embezzle any instrument executed by such master, but not yet issued; a note, for instance, drawn and signed for the purpose of being discounted or delivered in the course of business, but not actually put in circulation. It is very clear, therefore, that the offence consists in embezzling the money, goods, rights in action, or other valuable security or effects whatever, belonging to any person other than the person guilty of the embezzlement, which shall have come to his possession or under his care, by virtue of his employment as clerk or servant of a private person, or as officer, agent, clerk or servant of any incorporated company."

§ 753. In The United States v. Schooner Industry,(a) the rule laid down was, that courts are bound to construe penal statutes strictly, and not to extend them beyond the obvious meaning by strained inferences. On the other hand, they are bound to interpret them accord

(a) 1 Gallis. 117.