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Every law that takes away or impairs rights vested, agreeably to existing laws, is retrospective, and is generally unjust and may be oppressive; and it is a good general rule, that a law should have no retrospect; but there are cases in which laws may justly, and for the benefit of the community, and also of individuals, relate to a time antecedent to their commencement, as statutes of oblivion or of pardon. They are certainly retrospective and literally, both concerning and after the facts committed. But I do not consider any law ex post facto within the prohibition that mollifies the rigor of the criminal law; but only those that create or aggravate the crime or increase the punishment, or change the rules of evidence for the purpose of conviction. Every law that is to have an operation before the making thereof, as to commence at an antecedent time, or to save time from the statute of limitations, or to excuse acts which were unlawful, and before committed, and the like, is retrospective. But such laws may be proper or necessary, as the case may be. There is a great and apparent difference between making an unlawful act lawful and the making an innocent action criminal and punishing it as a crime." This construction of the constitutional prohibition has been repeatedly affirmed in later cases. It is settled that the term applies only to criminal and penal cases, and was not intended to prevent retrospective legislation affecting civil rights of persons or property.2
§ 466. Any law is an ex post facto law within the meaning of the constitution if passed after the commission of a crime charged against a defendant, which, in relation to that offense or its consequences, alters the situation of the party to his disadvantage.
§ 467. Procedure.
A statute relating to procedure is not for that reason beyond the reach of the constitutional inhibilong as subsequent laws do not
tion of ex post facto laws. So
1 Fletcher v. Peck, 6 Cranch, 138; Wilson v. Ohio, etc. R'y Co. 64 Ill. 542; Cummings v. Missouri, 4 Wall. 326.
2 Watson v. Mercer, 8 Pet. 88; Fletcher v. Peck, 6 Cranch, 87; Ogden v. Saunders, 12 Wheat. 266; Satterlee v. Matthewson, 2 Pet. 380;
McCowan v. Davidson, 43 Ga. 480; Ex parte Garland, 4 Wall. 390; Kring v. Missouri, 107 U. S. 221.
Kring v. Missouri, 107 U. S. 221; Wilson v. Ohio, etc. R'y Co. 64 Ill. 542; United States v. Hall, 2 Wash. 366; Hopt v. Utah, 110 U. S. 574; Medley, In re, 134 id. 160.
have the effect to deprive a defendant of any substantial right which he had touching his defense as the law stood when the offense was committed, nor alter his situation in relation to the offense or its consequences to his disadvantage, they are not ex post facto within the meaning of that inhibition.' A. was convicted of murder in the first degree, in Missouri, and the judgment of condemnation was affirmed by the supreme court of the state. A previous sentence pronounced on his plea of guilty of murder in the second degree, and subjecting him to imprisonment for twenty-five years, had on his own appeal been reversed. By the law of that state in force when the homicide was committed, this sentence was an acquittal of the crime of murder in the first degree; but before his plea of guilty was entered the law was changed, so that by force of its provisions if a judgment on that plea be lawfully set aside, it shall not be held to be an acquittal of the higher crime. It was held that as to this case the new law was an ex post facto law within the meaning of section 10, article I, of the constitution of the United States, and that he could not be again tried for murder in the first degree. delivering the opinion of the court, said: of Missouri so changes the rule of evidence that what was conclusive evidence of innocence of the higher grade of murder when the crime was committed, namely, a judicial conviction for a lower grade of homicide, is not received as evidence at all, or, if received, is given no weight in behalf of the offender. It also changes the punishment; for, whereas the law as it stood when the homicide was committed was that, when convicted of murder in the second degree, he could never be tried or punished by death for murder in the first degree, the new law enacts that he may be so punished, notwithstanding the former conviction."
Mr. Justice Miller, "The constitution
In another part of his opinion the learned justice said: "It cannot be sustained, without destroying the value of the constitutional provision, that a law, however it may invade or modify the rights of a party charged with crime, is not an ex post facto law, if it comes within either of these comprehensive branches of the law designated as pleading, practice
Id.; Cooley, C. L. 329, 330; Marion v. State, 20 Neb. 233; 29 N. W. Rep.
and evidence. Can the law with regard to bail, to indictments, to grand juries, to the trial jury, all be changed to the disadvantage of the prisoner by state legislation after the of fense was committed, and such legislation not held to be ex post facto, because it relates to procedure?" "And can any substantial right which the law gave the defendant at the time to which his guilt relates be taken away from him by e post facto legislation, because, in the use of a modern phrase, it is called a law of procedure? We think it cannot." After reviewing the course of decision upon the associated clause prohibiting state legislation impairing the obligation of contracts, he continues: "Why is not the right to life and liberty as sacred as the right growing out of a contract? Why should not the contiguous and associated words in the constitution relating to retroactive laws on these two subjects be governed by the same rule of construction? And why should a law, equally injurious to rights of the party concerned, be under the same circumstances void in one case and not in the other?”
The point is noticed that when the accused pleaded guilty of murder in the second degree the new constitution was in force, which altered the effect of conviction for the lesser degree of the offense by declaring that it should not be an acquittal of a higher degree. The answer was: "Whether it is ex post facto or not relates to the time at which the offense charged was committed. If the law complained of was passed before the commission of the act with which the prisoner is charged, it cannot, as to that offense, be an ex post facto law. If passed after the commission of the offense it is as to that ex post facto, though whether of the class forbidden by the constitution may depend on other matters. But so far as this depends on the time of its enactment, it has reference solely to the date at which the offense was committed to which the new law is sought to be applied. No other time or transaction but this has been in any adjudged case held to govern its ex post facto character." This decision is of the greatest importance in its bearing upon the effect of retrospective laws relating to procedure. Such laws must be tried by the test which is enunciated in that case. Any retroactive law, though relating to procedure, which deprives the prisoner of any substantial 1 Kring v. Missouri, 107 U. S. 221.
right that he would have by the law as it stood at the time when the imputed offense was committed, or which as to that offense or its consequences alters his situation to his disadvantage, is an ex post facto law, within the constitutional prohibition. In two cases which originated in Missouri the supreme court of the United States held that a law which excluded a minister of the gospel from the exercise of his clerical function and a lawyer from practice in the courts unless each would take an oath that he had not engaged in or encouraged armed hostilities against the government of the United States was an ex post facto law because it punished, in a manner not before punished by law, offenses committed before its passage, and because it instituted a new rule of evidence in aid of conviction. A statute which provided that "every surveyor who shall have wilfully and knowingly violated the instructions of the surveyor-general in not marking out the boundaries of lands formerly granted, and which are within surveys by him or them made," should be criminally prosecuted, was held ex post facto. A statute which purports to authorize the prosecution, trial and punishment of a person for an offense previously committed, and as to which all prosecution, trial and punishment were, at the time of its passage, already barred according to the pre-existing statute of limitations, is unconstitutional and void. The repeal of a general statute of amnesty is ex post facto as to offenses previously committed."
§ 468. A statute rendering ineligible as a voter or officeholder any person who teaches or practices polygamy or belongs to an association encouraging such practice, or any other crime, and providing for a test oath, is not an ex post facto law. A statute which enlarges the class of persons who may be competent as witnesses is not ex post facto in its application to offenses previously committed, for it does not attach criminality to any act previously done, and which was inno
1 Cooley, C. L. 330.
2 Cummings v. Missouri, 4 Wall. 277; Garland, Ex parte, id. 333.
3 State v. Solomons, 3 Hill (S. C.), 96. 4 Moore v. State, 43 N. J. L. 203. See State v. Sneed, 25 Tex. (Supp.) 66; State v. Keith, 63 N. C. 140; Hartung
v. People, 26 N. Y. 167; Yeaton v. United States, 5 Cr. 281; In re Murphy, 1 Woolw. 141.
5 State v. Keith, 63 N. C. 140.
6 Wooley v. Watkins (Idaho), 22 Pac. Rep. 102.
cent when done, nor aggravate past crimes, nor increase the punishment therefor; nor does it alter the degree, or lessen the amount or measure of the proof made necessary to conviction for such offenses. Such alterations relate to modes of procedure only which the state may regulate at pleasure, and in which no one can be said to have a vested right. Mr. Justice Harlan, in enunciating this doctrine as the opinion of the court, said: "Alterations which do not increase the punishment, nor change the ingredients of the offense, or the ultimate facts necessary 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. Such regulations of the mode in which the facts constituting guilt may be placed before the jury can be made applicable to prosecutions, or trials thereafter had, without reference to the date of the commission of the offense charged." It had been previously decided by the same court that "a law changing the place of trial from one county to another county in the same district, or to a different district from that in which the offense was committed or the indictment found, is not a ex post facto law, though passed subsequent to the commission of the offense or the finding of the indictment."2 Statutes are not ex post facto which provide on account of past convictions a severer penalty for repetition of like offenses in the future. In such a case the court said: "We entertain no doubt of the constitutionality of this section, which promotes the ends of justice by taking away a purely technical objection, while it leaves the defendant fully and fairly informed of the nature of the charge against him, and affords him ample opportunity for interposing every meritorious defense. Technical and formal objections of this nature are not constitutional rights.”
1 Hopt v. Utah, 110 U. S. 574; Laughlin v. Commonwealth, 13 Bush, 261. See Hart v. State, 40 Ala. 32. 2 Gut v. State, 9 Wall. 35.
3 People v. Butler, 3 Cow. 347;
Rand v. Commonwealth, 9 Gratt. 738;
4 Commonwealth v. Hall, 97 Mass. 570.