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now well settled to apply only to acts of a criminal nature. An ex post facto law is one which renders an act punishable in

not taking such oaths in relation to past conduct, that persons shall not pursue professions or exercise callings, or engage in business, are ex post facto laws and void. This determination is of course confined to the effect and operation of such laws upon the past conduct of the persons affected by them, no such penalties or forfeitures or punishment existing when the criminal acts were done. These decisions of the U. S. Supreme Court, being rendered in cases involving a construction of the national Constitution, are binding upon the State courts, and overrule all the contrary decisions of those courts, and settle the doctrine for the whole country.

Some of the State Constitutions or statutes have prescribed a test oath of loyalty as a prerequisite to the right of suffrage. Such a statutory requirement was held void in Rison v. Farr, 24 Ark. 161, as it violated the State Constitution; per contra, it was held valid in Randolph v. Good, 3 W. Va. 551; State v. Neal, 42 Mo. 119; and see Anderson v. Baker, 23 Md. 531; Blair v. Ridgeley, 41 Mo. 63; State v. Staten, 6 Cold. 248. In Green v. Shumway, 39 N. Y. 418, a statute of N. Y. imposing a similar test oath as a condition of voting at a certain election, was by the judgment of the court declared void, but it can hardly be said that the court by a majority of the judges established any rule or doctrine. The Supreme Court of the United States has not as yet passed upon this particular question. Entirely agreeing with the decisions of the U. S. Court that the test oath statutes were ex post facto laws when applied to the subject-matter of trades, professions, businesses, &c., and made a penalty for past crimes, we think there is a clear and broad distinction between such cases and those involving the right of suffrage. Of course, if the State Constitution prescribes the qualifications of electors, and a statute demands other and antagonistic qualifications, it would violate the State Constitution. But the question under discussion is concerned solely with the relations of State statutes or Constitutions with the provision of the national Constitution prohibiting the States to pass ex post facto laws. In order that a law should be ex post facto, it must inflict some legal penalty, and thus must consist in taking away a legal right or imposing some legal burden. A State Constitution which demands a test oath of loyalty as a prerequisite of exercising the electoral franchise, does not take away a legal right or impose a legal burden, because no person in the State has any right to vote independent of the express provisions of the State Constitution. The very Constitution which contains the restriction is the source of all power, capacity, or right of voting; and if such Constitution imposes a test oath as a qualification, it does the same in essence as when it imposes the age of twenty-one years, citizenship, or the male sex, as a prerequisite. In other words, as the subject of electoral capacity has been left to the States absolutely untrammeled, except by the provisions respecting race and color, any changes which the State may think best to make in defining the qualifications of voters, do not take away any right or impose any legal burden, and cannot therefore be ex post facto laws, however much they may apply to past acts and transactions. See Pomeroy's Constitutional Law, §§ 532–535.

It was held in Ex parte Stratton, 1 W. Va. 305, that an oath of allegiance to the United States might be required of State officers.

The act of Congress of June 7, 1862, so far as it attempts to forfeit land for nonpayment of taxes as a punishment for rebellion, was held void as a bill of attainder in Martin v. Snowden, 18 Gratt. 100. The confiscation act of Congress of July 17,

a manner in which it was not punishable when it was com. mitted, whether by personal or pecuniary penalties. * The

*Fletcher v. Peck, 6 Cranch, 138.

1862, providing a judicial proceeding and determination is constitutional and valid. Miller v. U. S. 11 Wall. 268; Bigelow v. Forrest, 9 Wall. 339; see also Mrs. Alexander's Cotton, 2 Wall. 404; U. S. v. Padelford, 9 Ib. 531. See also Dewey v. McLain, 7 Kans. 126. The Kentucky court, however, uttered its protest against the statute, and pronounced it void in Norris v. Doniphan, 4 Metc. (Ky.) 385.

For decisions upon the act of Congress of July 13, 1861, for the confiscation of vessels belonging to citizens of the insurgent States, see Prize Cases, 2 Black, 635; The Amy Warwick, 2 Sprague, 123; The Ned, Blatch. Prize Cas. 119. These and similar decisions however proceeded largely, if not mainly, on the belligerent power of the United States to establish a blockade.

A statute which makes the selling of liquor already on hand a crime and thereby lessens its value, is not ex post facto. State v. Paul, 5 R. I. 185; State v. Keeran, Ib. 497. See note on the "Police Power." The forfeiture of land for breach of internal revenue law by a proceeding in rem is constitutional. U. S. v. A Distillery, 2 Abb. U. S. R. 192. The act of Congress approved March 3, 1865, making forfeiture of citizenship a part of the penalty of desertion, is not an ex post facto law or a bill of attainder, as it contemplates a trial and sentence by a court martial. Gotcheus v. Matheson, 58 Barb. 152. It seems that a statute requiring registration of voters, or otherwise prescribing qualifications for voters, is not an ex post facto law. Anderson v. Baker, 23 Md. 531.

Renewal of Penalty.—A statute extending the time for prosecution after the time has run out, is ex post facto. State v. Sneed, 25 Tex. Supp. 66. And the same is held of a statute repealing an amnesty act as to all cases to which such amnesty bad applied. State v. Keith, 63 N. C. 140. After the old law as to murder had been repealed without a saving clause, and thereby a sentence upon a verdict rendered under the old law for a crime committed while the old law was in force, was rendered impossible, a re-enactment of the old law was held ex post facto and void as to such criminal, and she was discharged. Hartung v. People, 26 N. Y. 167, and see other N. Y. cases cited below in the next subdivision.

Increase or Change of the Penalty.-By the provisions of a New Hampshire statute the punishment for robbery was solitary imprisonment for six months, and then confinement for life at hard labor; but the prisoner was entitled as a matter of right to have counsel assigned to him by the State, to have process for his witnesses, a copy of the indictment, and a list of the jurors, &c. This statute was modified by making the punishment to be solitary confinement for six months, and then imprisonment at hard labor for not less than seven nor more than thirty years, and by leaving it to the discretion of the court, whether the prisoner should have counsel assigned to him, process for his witnesses, &c. A person was charged with robbery committed under the former statute, and the modifying act was passed after his offence and before the trial. On the trial the court assigned him counsel, but refused to award him process, or to grant him the other rights conferred by the earlier legislation. On error after conviction, it was held that the provisions of the amending statute were not ex post facto, that the penalty on the whole was lessened, and that the incidental deprivation of certain privileges did not add to the penalty. State v. Arlin, 39 N. H. 179. This case has been severely criticised, and certainly cannot be

prohibition, whether in regard to the government of the Union or of the several States, has no application to retrospective

harmonized with other recent decisions quoted below. In New York the punishment for murder was that the person convicted should be bung; a statute repealed the former statute without any saving clause, and substituted as a punishment that the convict should be confined in the State prison at hard labor for at least a year, and should be then hung upon a warrant issued by the Governor. A person committed murder under the former act, but was not tried and sentenced until the second came into operation. The latter statute was held to be ex post facto in its application to her case and to all similar cases. Hartung v. People, 22 N. Y. 95. This decision was followed in other cases, the court establishing this rule: "A law changing the punishment for offences committed before its passage is ex post facto and void, unless the change consists in the remission of some separable part of the punishment before prescribed, or is referable to prison discipline or penal administration as its primary object." Ratzky v. People, 29 N. Y. 124; Shepherd v. People, 25 N. Y. 406.

A statute merely mitigating punishment is not ex post facto. Dolan v. Thomas, 12 Allen, 421. Nor a statute changing the place of imprisonment from a house of correction in the county where the offence was committed to a house of correction in any other county, in the discretion of the court, for this is simply a matter of prison discipline and penal administration. Carter v. Burt, 12 Allen, 424.

It seems that a statute authorizing the jury in their discretion to inflict a fine or imprisonment in the county jail or both, in lieu of imprisonment in the State penitentiary not less than two nor more than five years, is a mitigation of the penalty. State v. Turner, 40 Ala. 21. When the original penalty was imprisonment not exceeding one year, and it was changed to imprisonment not less than three nor more than twelve months, the amendatory statute, so far as it affected past offences, was held to be ex post facto. Flaherty v. Thomas, 12 Allen, 428. Where an original act imposed $50 as a penalty, and a subsequent one applicable by its terms to past offenses imposed a penalty "not exceeding $100," the second statute was held to be operative as to past offences, so far as to make the penalty discretionary, but not to exceed the old limit of $50. Chicago &c. R. R. v. Adler, 56 Ill. 344. A law defining two degrees of murder, and making the second punishable by imprisonment for life, is not ex post facto as to past offences, since the punishment for the first degree is left the same, and that of the second degree is in fact a mitigation of the penalty which would have been inflicted under the former law. Commonwealth v. Gardner, 11 Gray, 438.

Changes in Procedure, Pleading, Evidence, Courts, and Venue.-It seems that a statute limiting the right to object to an indictment to a certain stage in the proceeding, which stage in a particular case had been passed before the passage of the statute, would be ex post facto in its application to such case. Martin v. State, 22 Tex. 214. An act authorizing conviction upon the unsupported evidence of an accomplice, cannot be applied to the trial of a crime committed before its passage. Hart v. State, 40 Ala. 32. Where a statute making that evidence of a crime which was not so before, is passed to go into effect at a future day, a person committing the crime after its passage, but before it goes into effect, cannot be tried and punished under it. State v. Bond, 4 Jones (Law), 9.

An act giving additional right of challenge to the prosecution is not ex post facto. Walston v. Commonwealth, 16 B. Mon. 15; State v. Ryan, 13 Minn. 370. Nor one

laws of a civil character, nor any tendency to protect property or vested rights of a civil description. *

Faith and Credit of Judicial Proceedings. Art. iv, sec. 1. I have already † called attention to this provision. The act of May 26, 1790, provides the manner of authenticating acts and records, and declares that when so authenticated they shall have such faith and credit given to them in any court within the United States, as they have by law or usage in the courts of the State from whence the records are taken. Under this, it has been decided that if a judgment has the effect of record evidence in the courts of the State from whence it is taken, it has the same effect in the courts of any other State. At common law, a judgment of the courts of one State would have been prima facie evidence in the courts of any other State.

* Watson v. Mercer, 8 Peters, 110; see also, Dash v. Van Kleeck, 7 J. R. 477. This restricted interpretation of a phrase which, on its face, is susceptible of a much wider construction, has, however, been repeatedly regretted. In Satterlee v. Matthewson, 2 Peters, 380, where a retrospective law was sustained, Mr. J. Johnson, dissenting, says: "The whole difficulty arises out of the unhappy idea that the phrase ex post facto, in the Constitution of the United States, was confined to criminal cases exclusively, a de

cision which leaves a large class of arbitrary legislative acts without the prohibitions of the Constitution."

In Carpenter v. Commonwealth of Pennsylvania, 17 How. 456, the Supreme Court reviewed the cases, and again decided that the phrase ex post facto is to be taken as ap plied to' criminal cases only, and that it did not apply to an explanatory act the effect of which was to charge an estate with taxes to which it had not been before subjected. † Ante, p. 63.

authorizing amendment of indictment in case of misnomer. State v. Manning, 14 Tex. 402. Nor one which prevents a defendant from taking advantage of variances which do not prejudice him. Commonwealth v. Hall, 98 Mass. 570.

Where a city had power under its charter to establish a tribunal to try contested elections, it was held that such tribunal might take cognizance of a case arising out of an election held before it was constituted. State v. Johnson, 17 Ark. 407. But if, at the time an offence was committed, no court or tribunal had jurisdiction to try it, it cannot be punished, because there was in fact no offence, and clothing a court with authority to try it would be in substance to create the offence. U. S. v. Starr, 1 Hemp. 469. It seems, however, that a tribunal may be subsequently authorized to try prior offences of which another court had, at the time of their commission, exclusive jurisdiction. State v. Sullivan, 14 Rich. (Law) 281. A statute changing the place of trial of an offence after its commission is not ex post facto. Gut v. State, 9 Wall. 35.

Civil Remedies.-A law taking away remedies for breach of contract or for tort is not ex post fucto. Lord v. Chadbourne, 42 Me. 429. Nor is a re-assessment for local improvements. Butler v. Toledo, 5 Ohio, N. S. 225. Nor are any laws affecting

civil rights or remedies merely. Calder v. Bull, 3 Dall. 386; Rich v. Flanders, 39 N. H. 304; Southwick v. Southwick, 49 N. Y. 510. A constitutional provision of a State prohibiting suits for acts done under military authority is not ex post facto. Drehman v. Stifle, 8 Wall, 595.

The Constitution contemplates a power in Congress to give a conclusive power to such judgments, which power it has executed by declaring a judgment conclusive when the courts of the State where it is rendered, would so pronounce it.* (a)

Mutual Enjoyment of Privileges and Immunities. Art. iv, sect. 2, § 1. This clause has not as yet received the attention which from its importance it would have been expected to command. It has been considered but in a few instances, and no general authoritative exposition of it has as yet been declared. (b) Some partial interpretations of it have, however,

* Mills v. Duryee, 7 Cranch, 481; Hamp- Montgomery, 19 J. R. 162; Borden v. Fitch, 15 ton v. M'Connel, 3 Wheat. 234; Andrews v. J. R. 121; Black's Case, 4 Abb. Pr. Rep. 164.

(a) A statute providing that no suit shall be brought on a judgment of any court without the State against a citizen of the State, if the original suit would have been barred by the statute of limitations if brought within such State, is unconstitutional. Christmas v. Russell, 5 Wall. 290. As to the force of judgments of confederate courts, see Martin v. Hewitt, 44 Ala. 418. As to the effect of the clause see Darcy v. Ketchum, 11 How. 165, 175; Green v. Van Buskirk, 5 Wall. 307; s. c. 7 Wall. 139; Cheever v. Wilson, 9 Wall. 108, 123; Board, &c. v. Columbia Coll. 17 Wall. 521; Thompson v. Whitman, 9 Alb. L. J. 256; 18 Wall.

(b) Citizenship: Privileges and Immunities of Citizens.-Corporations are not citizens within this guaranty. Paul v. Virginia, 8 Wall. 168; Liverpool Ins. Co. v. Massachusetts, 10 Wall. 566; Ducat v. Chicago, 10 Wall. 410; s. c. 48 III. 172; Phoenix Ins. Co. v. Commonwealth, 5 Bush (Ky.) 68; Slaughter v. Commonwealth, 13 Gratt. 767; Cincinnati Mut. H. A. Co. v. Rosenthal, 55 Ill. 85; Philadelphia Ass. v. Wood, 39 Penn. St. 73. And the Legislature may prohibit foreign corporations from doing business within the State, or may impose conditions. Fire Department v. Helfenstein, 16 Wisc. 136.

An article in a State Constitution prohibiting any negro or mulatto from coming into the State, and avoiding all contracts made with such as shall come in contrary to such prohibition, conflicts with this guaranty of the United States Constitution, and is void. Smith v. Moody, 26 Ind. 299.

The meaning and extent of the clause in question was discussed and partially stated, some of the rights of citizens were enumerated, and a State statute which had the effect to tax citizens passing through the State was held void, in Crandall v. Nevada, 6 Wall. 35. But a statute requiring a defendant removing out of the State after suit brought to give security is valid. Haney v. Marshall, 9 Md. 194. When a city ordinance imposed a license tax upon dealers in beer not manufactured in the city, but brought there for sale, but it not appearing that the beer in the case at bar was manufactured outside the State, the tax was sustained. Downham v. Alexandria Council, 10 Wall. 173. This case was argued upon the assumption that the ordinance was aimed at dealers in beer manufactured outside of the State, but the court held that the general question discussed was not raised by the record, and therefore refused to pass upon it. But the same court held in a subsequent case, that a discriminating State tax against non-resident traders coming from other States is void. Ward v. Maryland, 12 Wall. 418. And this case undoubtedly overrules many decisions of State courts, some of which are cited infra

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