Stogner v. California, 539 U.S. 607, 13 (2003)

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Cite as: 539 U. S. 607 (2003)

Opinion of the Court

is subject to enlargement or repeal without being obnoxious to the constitutional prohibition against ex post facto laws").

Given the apparent unanimity of pre-Frazer case law, legal scholars have long had reason to believe this matter settled. As early as 1887, Henry Black reported that, although "not at all numerous," the "cases upon this point . . . unmistakably point to the conclusion that such an act would be ex post facto in the strict sense, and void." Constitutional Prohibitions 235, at 297. Even earlier, in 1874, Francis Wharton supported this conclusion by emphasizing the historic role of statutes of limitations as "acts of grace or oblivion, and not of process," "extinguish[ing] all future prosecution" and making an offense unable to "be again called into existence at the caprice of the prince." 1 Criminal Law 444a, at 347- 348, n. b. More modern commentators—reporting on the same and subsequent cases—have come to the same conclusion. E. g., 21 Am. Jur. 2d, Criminal Law 294, pp. 349-350 (1998 and Supp. 2002); 16A C. J. S., Constitutional Law 420, p. 372 (1984 and Supp. 2002); 4 LaFave, Israel, & King, Criminal Procedure 18.5(a), at 718, n. 6; 2 C. Antieau & W. Rich, Modern Constitutional Law 38.11, p. 445 (2d ed. 1997); Adlestein, Conflict of the Criminal Statute of Limitations with Lesser Offenses at Trial, 37 Wm. & Mary L. Rev. 199, 246 (1995); C. Corman, Limitation of Actions 1.6, p. 35 (1993 Supp.); Black, Statutes of Limitations and the Ex Post Facto Clauses, 26 Ky. L. J. 42 (1937); Black, American Constitutional Law 266, at 700. Cf. H. Wood, Limitation of Actions 13, p. 43 (3d ed. 1901) (The State "may be said" to be "estopped from prosecuting"). Likewise, with respect to the closely related case of a law repealing an amnesty—a case not distinguished by the dissent—William Wade concluded early on that "[s]uch an act would be as clearly in contravention of the inhibition of ex post facto laws as though it undertook to annex criminality to an act innocent when done." Operation and Construction of Retroactive Laws

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