CHAPTER XVII. THE NULLITY OF EX POST FACTO LAWS. Consult, in connection with this chapter, Stat. Crimes, § 29, 85, 176, 180, 184, 185, 265-267. § 279. 1. Retrospective Laws - may be just or unjust, according to the circumstances, and the subject to which they relate. Such as undertake to divest vested rights of property are generally void under our constitutions. Various other forms of retrospective legislation are valid.1 But criminal jurisprudence knows little of vested rights, so that this is a doctrine chiefly of the civil department. On the other hand, 2. Ex Post Facto Laws, making punishable what was not so when done, are commonly, perhaps always, unjust. To render them impossible, the Constitution of the United States has two clauses, the one, in restraint of national legislation, providing that "no . . . ex post facto law shall be passed," the other, that "no State shall . pass any ex post facto 3. Criminal Legislation, not Civil. This constitutional restraint is by interpretation limited substantially to criminal 1 1 Bishop Mar. Div. & S. § 1435 et seq.; Suydam v. Receivers of New Brunswick Bank, 2 Green Ch. 114; New Orleans v. Cordeviolle, 13 La. An. 268; Albee v. May, 2 Paine, 74; Watson v. Mercer, 8 Pet. 88; Thompson v. Lee, 3 Wal. 327; Satterlee v. Matthewson, 2 Pet. 380; Charles River Bridge v. Warren Bridge, 11 Pet. 420; Locke v. New Orleans, 4 Wal. 172; Blanchard v. Sprague, 3 Sumner, 535; Grinder v. Nelson, 9 Gill, 299; Bank of Hamilton v. Dudley, 2 Pet. 492; Kearney v. Taylor, 15 How. U. S. 494; Milne v. Huber, 3 McLean, 212. 2 Const. U. S. art. 1, § 9, 10; Stat. Crimes, § 180, 185, 265; Calder v. Bull, 3 Dall. 386, 390; U. S. v. Hall, 2 Wash. C. C. 366; Ex parte Garland, 4 Wal. 333; Woodruff v. S. 3 Pike, 285; Dupy v. Wickwire, 1 D. Chip. 237, 6 Am. D. 729; Charleston v. Feckman, 3 Rich. 385; Grinder v. Nelson, 9 Gill, 299; Perry v. C. 3 Grat. 632; C. v. Phillips, 11 Pick. 28; C. v. Edwards, 9 Dana, 447; S. v. Dunkley, 3 Ire. 116; Woart v. Winnick, 3 N. H. 473, 475, 14 Am. D. 384; Fisher v. Cockerill, 5 T. B. Monr. 129, 133; Dash v. Van Kleeck, 7 Johns. 477, 488, 5 Am. D. 291; Strong v. S. 1 Blackf. 193, 196; C. c. Lewis, 6 Binn. 266, 271; Davis v. Ballard, 1 J. J. Mar. 563, 570; Locke v. Dane, 9 Mass. 360, 363; Watson v. Mercer, 8 Pet. 88, 110; Ross's Case, 2 Pick. 165, 170. statutes. Yet it is extended somewhat beyond the domain of pure crime as defined 2 in a previous chapter. Thus, — 4. Forfeitures - Penalties. — The imposing of a forfeiture or any penalty for what was lawful when done is ex post facto; as, requiring a clergyman or lawyer by test oath to justify his former. conduct or cease to exercise his profession. But a statute is not ex post facto which provides that on a divorce for a cause already accrued, the guilty party may be forbidden to remarry.5 5. Waiver by State. This constitutional provision, with other similar ones, is for the protection of the citizen, and the State may waive any real or supposed rights of its own under it. Hence 6. Diminishing Punishment-Increasing. - Statutes diminishing the punishment of offences already committed are valid; those increasing it are ex post facto and void. Or, short of this, — 7. Prejudicially altering Situation. Any statute is ex post facto which, after a criminal act is done, alters, not simply in a mere formal part of the procedure or evidence, but in a substantial right, the situation of the doer relating thereto, prejudicially to him. Consistently with this doctrine, § 280. 1. The Court. A statute may authorize the punishment to be inflicted by a court which had no jurisdiction over the offence at the time of its commission. 10 And 2. Place. It may change the rules as to the venue or place of trial. So also 3. The Mere Procedure for bringing the offender to justice. 1 Story Const. § 1345; Carpenter v. C. 17 How. U. S. 456; Byrne v. Stewart, 3 Des. 466. 2 Ante, § 32; Weister v. Hade, 52 Pa. 474; Ex parte Quarrier, W. Va. 569. 8 U. S. v. Hughes, 8 Ben. 29, 30, 31; Falconer v. Campbell, 2 McLean, 195; Cummings v. Missouri, 4 Wal. 277; Suydam v. Receivers of Bank of New Brunswick, 2 Green Ch. 114; Pierce v. Carskadon, 16 Wal. 234. 2 Rich. 418, 45 Am. D. 741; C. v. McDonough, 13 Allen, 581; Shepherd v. P. 25 N. Y. 406; Story Const. § 1345; Marion v. S. 20 Neb. 233, 57 Am. R. 825; Marion v. S. 16 Neb. 349; Lindzey r. S. 65 Missis. 542, 7 Am. St. 674; McInturf e. S. 20 Tex. Ap. 335. And see C. v. Grover, 16 Gray, 602. 8 Hopt v. Utah, 110 U. S. 574. 9 Kring v. Missouri, 107 U. S. 221; Garvey v. P. 6 Colo. 559, 45 Am. R. 531; Ex parte Garland, 4 Wal. 333; Cum- Lindzey v. S. 65 Missis. 542, 7 Am. St. mings . Missouri, supra. 674; S. v. Emerich, 87 Mo. 110. Elliott v. Elliott, 38 Md. 357. Post, § 995 et seq.; Crim. Pro. I. § 117 et seq.; Lewis v. Turner, 40 Ga. 416. 7 Stat. Crimes, § 185; Turner v. S. 40 Ala. 21; C. v. Wyman, 12 Cush. 237, 239; S. v. Anlin, 39 N. H. 179; S. v. Williams, 10 Stat. Crimes, § 180; S. v. Sullivan, 14 Rich. 281, 286; Wales v. Belcher, 3 Pick. 508; C. v. Phillips, 11 Pick 28. 11 S. v. Gut, 13 Minn. 341; Gut v. S. 9 Wal. 35; Crim. Pro. I. § 76. may be varied from time to time, and applied as well to past offences as to future. Such regulations, if they do not extend to the taking away of substantial rights,1 are not ex post facto laws.2 Now, § 281. 1. Defined. An ex post facto law may with reasonable precision be defined to be one making punishable what was innocent when done, or subjecting the doer to a heavier penalty or burden than was then provided.3 2. Particulars enumerated. In an early and very leading case before the Supreme Court of the United States, Chase, J. stated that in his opinion the constitutional term ex post facto law embraces, "1. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2. Every law that aggravates a crime, and makes it greater than it was when committed. 3. Every law that changes the punishment, and inflicts a greater punishment than the law annexed to the crime when committed." It is perceived that the second and third of these heads are in effect one; because the measure of every crime is its punishment.* And the three heads together are simply or nearly an equivalent for our shorter definition. But - 3. Rules of Evidence. He adds: "4. Every law that alters the legal rules of evidence, and receives less or different testimony than the law required at the time of the commission of the offence in order to convict the offender." 5 This branch of the supposed doctrine invites a more particular consideration. Thus, § 281 a. Further of Evidence.-The evidence, for the most part, pertains to the remedy or procedure. If the legislature removes a technical obstruction to a witness's testifying, the result may be the conviction of a guilty man who otherwise would have escaped, but not the punishing of one before inno 2 Cooley Const. Lim. 272; P. v. Mortimer, 46 Cal. 114; Ex parte Bethurum, 66 Mo. 545; Andrews v. Worcester County Mut. Fire Ins. Co., 5 Allen, 65; S. v. Ryan, 13 Minn. 370; Crim. Pro. I. § 115; Stat. Crimes, § 176-179. 1 Ante, § 279 (7); Kring v. Missouri, this definition, Minge v. Gilmour, 1 Car. 107 U. S. 221. Law Repos. 34; Evans r. Robinson, 1 Car. Law Repos. 209, 214; Watson v. Mercer, 8 Pet. 88; Carpenter v. C. 17 How. U. S. 456; U. S. v. Hall, 2 Wash. C. C. 366; Locke v. New Orleans, 4 Wal. 172; Cummings v. Missouri, 4 Wal. 277; Hannahan v. S. 7 Tex. Ap. 664. Costs. Even a statute increasing the costs on conviction cannot be applied to an offence previously committed. Caldwell v. S. 55 Ala. 133. 6 Ante, § 280. 8 Stat. Crimes, § 266. 4 Crim. Pro. I. § 77 et seq. 5 Calder . Bull, 3 Dall. 386, 390. And see further as to the several branches of en or the adding of a hair's weight to the law's penalty. And is within established doctrine that the legislature may change lass of rules from time to tune with respect as well to past to riture offences! Hence, for example, a statute removing i squalleation from a witness may be applied as well to existmz Vences as to future ones; it is not er post facto. And the sano is true of other statutory regulations of the mere evidence. At the same time, we find the doctrine often stated in general ems to be that a stature authorizing a conviction on less or rent evidence from what was reprized when the transaction overed is er post fet and void Now, a provision may be called a stature of evidence while in fact it changes the law; ani f the change is prejudicial to an offen der, it cannot be consionally applied to his already committed offence. For exemplo, if it directs that evidence of an asportation shall not be required in larceny, the effect will be to render persons guilty of this crime who were not so before; and such a statute, however prominently it may employ the word "evidence," will as to past facts be er post fini The principle thus suggested, it is somitted, accurately and with su Berent fulness explains the sa race di forences on this question $282. Not declaring Criminal A statute, to be er post facto, noosi not in terms declare the thing already done criminal. It is equally so “it,” in the words of Cooley, “it deprives a party of any valuable right (like the right to follow a lawful calling) for sets which were innocent or, at least, not punishable by law when committed, " $28 Offence repeated-It results from the foregoing views that a statute providing a heavier punishment for the second commission of an offence than for the first, is not er post facto, even though the first took place before its passage. Yet where both were before, the consequence is otherwise. $ 1 Crim. Pro I. § 1089, 1090; Reid & Rare, 43 Ark. 41. * Hopt . tab, 110 U S. 374. * Ante, § 281 (3), Valesco e. S. 9 Tex. Ap 78: Calloway 2. S. 7. Tex. Ap. 385; Sarong S. Blackf 198, Cummings a Missouri, 4 Wal 277,323; U. S. e. Hughes, & Bou. 29; Story Const § 1343; Cooley Cust Lim. 263 et sep 212. * Falconer z. Campbell, 2 McLean, 195, • Cooley Const. Lim. 266. * Aute. § 279: Cummings & Missouri, 4 Wal 277: Ex parte Garland, 4 Wal. 333. 7 Ross's Case, 2 Pick 163: Rand v. C. 9 Grat. 788; Ex parte Gutierrez, 45 Cal. 429 8 Riley's Case, 2 Tick. 172; Ross's Case, supra. § 284. Restated, the doctrine of this chapter is, that after an offence has been committed, the legislature may provide new methods for arresting and bringing to trial the offender, may qualify witnesses who were incompetent before, may authorize the introduction of any evidence which a technicality of the law had excluded, and thereby and by other like means secure the punishment of one who practically would otherwise have escaped. But a statute will be ex post facto and void if by it any less wrongdoing, however minute, is made to suffice for the offence than was required before. And it will be the same if the punishment, or other penal consequence, is enhanced. In all this, the rule is to look to the substance of the provision, and not the name by which it is called. A statute nominally of procedure, or nominally of evidence, will be ex post facto or not as tested by its substance or nature. VOL. I.-11 161 |