8 5 § 469. Acts for transferring criminal cases to another court,1 or providing a new tribunal or giving a new jurisdiction to try offenses already committed, do not abridge any right, and are not ex post facto. When the offense was committed. the jury was by statute judge of the law. This act was repealed before the trial. Such change, as applied to that case, was held not ex post facto. Nor are treaties which provide for surrender of persons charged with previous offenses; nor statutes giving additional challenges to the government; statutes reducing the defendant's peremptory challenges, or modifying the grounds of challenge for cause; statutes authorizing amendments to indictments; statutes regulating the framing of indictments with a view to exclude redundancies and reduce them to essential allegations; statutes generally to facilitate the routine of procedure and preclude defendants from taking advantage of mere technicalities which do not prejudice them.10 Where there has been a legal conviction, but an erroneous judgment thereon, which resulted according to the law in a discharge of the convict on reversal of the judgment, a law enacted subsequent to the commission of the crime, that on such a reversal the court in which the conviction was had should, on return of the record, pass such sentence thereon as the appellate court should direct, was not an ex post facto law."1 9 In such a case, Shaw, C. J., said, with reference to the provisions of such a statute: "They relate simply to errors in the imposition of sentences, in cases where neither the law nor the 1 State v. Cooler, 8 S. E. Rep. 692. 2 Commonwealth v. Phillips, 11 Pick. 28; Wales v. Belcher, 3 id. 508; State v. Sullivan, 14 Rich. L. 281; Ewing's Case, 5 Gratt. 701. 3 Marion v. State, 20 Neb. 233; 29 N. W. Rep. 911. 4 In re De Giacomo, 12 Blatchf. 391. 5 Jones v. State, 1 Ga. 610; Walston v. Commonwealth, 16 B. Mon. 15; Walter v. People, 32 N. Y. 147; Warren v. Commonwealth, 37 Pa. St. 45; State v. Ryan, 13 Minn. 370; State v. Wilson, 48 N. H. 398; Commonwealth v. Dorsey, 103 Mass. 412. "Dowling v. State, 5 Sm. & M. 664; South v. State, 86 Ala. 617. 7 Stokes v. People, 53 N. Y. 164. 8 Lasure v. State, 19 Ohio St. 43; State v. Manning, 14 Tex. 402; Sullivan v. Oneida, 61 Ill. 242. 9 State v. Corson, 59 Me. 137; State v. Learned, 47 id. 426. 10 Commonwealth v. Hall, 97 Mass. 570; Lasure v. State, 19 Ohio St. 43. 11 Ratzky v. People, 29 N. Y. 124; Jacquins v. Commonwealth, 9 Cush. 279. evidence upon which the convictions rest is in any respect impugned, where the original process is right, the facts sufficient and regularly proved, and all the proceedings, up to the sentence, were right, and where the alleged error is in the sentence only. Now is this act retrospective or prospective? It certainly refers, in its terms, to the future, and to writs of error thereafter to be brought. It was competent for the legislature to take away writs of error altogether, in cases where the irregularities are formal and technical only, and to provide that no judgment should be reversed for such cause. It is more favorable to the party to provide that he may come into court upon the terms allowed by this statute than to exclude him altogether. This act operates like the act of limitations. Suppose an act were passed that no writ of error should be taken out after the lapse of a certain period. It is contended that such an act would be unconstitutional on the ground that the right of the convict to have his sentence reversed upon certain conditions had once vested. But this argument overlooks entirely the well-settled distinction between rights and remedies." A subsequent statute requiring the defense of insanity to be specially pleaded at the arraignment is not ex post facto. "It works no injustice," say the court, "to the defendant and deprives him of no substantial right which he would otherwise have. It is not, therefore, objectionable as an ex post facto [law] when applied, as in the present case, to a crime already committed at the time of its enactment, any more than a statute authorizing indictments to be amended, or conferring additional challenges on the government, or authorizing a change of venue, or other like statutes regulating the mode of judicial or forensic proceeding in a cause." 3 1 Jacquins v. Commonwealth, supra. 2 Perry v. State, 87 Ala. 30. 3 Id. A statute of Iowa authorized the treatment of traffic in intoxicating liquors as a nuisance and subject to equitable proceedings for abatement. A later statute authorized the court to tax an attorney fee in such cases against the defendant and to close the building in which the nuisance had been maintained for one year. This latter law, applied to a nuisance created or maintained prior to its passage, was held not ex post facto. "This," say the court, "is a civil not a criminal proceeding, and the provisions of the statute referred to relate to the remedy. The right to a particular mode of procedure is not a vested one which the state cannot change or abolish." Drake v. Jordan, 73 Iowa, 707; 36 N. W. Rep. 653, citing Cooley, C. L. (5th ed.) 349, 443; Tilton v. Swift, 40 Iowa, 80; § 470. Change of punishment by subsequent legislation.— Obviously enough a retrospective statute would be ex post facto which increased in kind the punishment, or which added new elements of punishment. But there has been some diversity of decision where the punishment has been changed and on the whole, as judicially considered, has thus been made less severe.' It is believed, however, that at the present time, the doctrine accepted as most consonant to reason and authority is that laid down in Hartung v. People.2 After the prisoner had been convicted of murder and sentenced to death, and while her case was pending on appeal, the legislature changed the law for the punishment of murder in general, so as to authorize the governor to postpone indefinitely the execution of the sentence of death, and to keep the party confined in the penitentiary at hard labor until he should order the full execution of the sentence or should pardon or commute it. The court of appeals held that this later law repealed all laws for punishment for murders theretofore committed. It was ex post facto as to that case, and could not be applied to it. Mr. Justice Denio said: "It is highly probable that it was the intention of the legislature to extend favor, rather than increased severity, towards this convict and others. in her situation; and it is quite likely that, had they been consulted, they would have preferred the application of this law to their cases, rather than that which existed when they committed the offenses of which they were convicted. But the case cannot be determined upon such considerations. No one can be criminally punished in this country, except according to a law prescribed for his government by the sovereign authority before the imputed offense was committed, and which existed as a law at that time. It would be useless to speculate upon the question whether this would be so upon the reason of the thing, and according to the spirit of our legal institutions, because the rule exists in the form of an express written precept, the binding force of which no one disputes. Wormley v. Hamburg, id. 25; Equitable L. Ins. Co. v. Gleason, 56 id. 48; County of Kossuth v. Wallace, 60 id. 508. I See Strong v. State, 1 Blackf. 193; It is Herber v. State, 7 Tex. 69; McInturf v. State, 20 Tex. App. 335; Clarke v. State, 23 Miss. 261; State v. Arlin, 39 N. H. 179; Turner v. State, 40 Ala. 21. 222 N. Y. 95. enough to bring the law within the condemnation of the constitution that it changes the punishment, after the commission of the offense, by substituting for the prescribed penalty a different one. We have no means of saying whether one or the other would be the most severe in a given case. That would depend upon the disposition and temperament of the convict. The legislature cannot thus experiment upon the criminal law. It is enough, in my opinion, that it changes it in any manner, except by dispensing with divisible portions of it. Anything which, if applied to an individual sentence, would fairly fall within the idea of a remission of a part of the sentence, would not be liable to objection. Any change which should be referable to prison discipline or penal administration as its primary object might also be made to take effect upon past as well as future offenses; as changes in the manner or kind of employment of convicts sentenced to hard labor, the system of supervision, the means of restraint, or the like. Changes of this sort might operate to increase or mitigate the severity of the punishment of the convict; but would not raise any question under the constitutional provision" against ex post facto laws.1 In Commonwealth v. McDonough it was held that a law passed after the commission of the offense, which mitigated the punishment, as regarded the fine and the maximum of imprisonment that might be inflicted, was an ex post facto law as to that case, because the minimum of imprisonment was made three months, whereas before there was no minimum limit to the court's discretion. This slight variance in the law was held to make it ex post facto and void as to that case, though the effect of the decision was to leave no law by which the defendant could be punished, and he was discharged, though found guilty of the offense. As to a defendant convicted of carrying a concealed weapon, an amended law was held ex post facto, first, because it abrogated the right which before existed of defending against the charge on the ground that he had good and suffi 1 Shepherd v. People, 25 N. Y. 406; Ratzkey v. People, 29 id. 124; Kuckler v. People, 5 Park. Cr. R. 212; Carter v. Burt, 12 Allen, 424; Green v. Shumway, 39 N. Y. 418; In re Petty, 22 Kan. 477; Garvey v. People, cient reason to apprehend an attack, and made an act criminal which was not so at the time the amendment was passed, and because it changed but did not mitigate the punishment for the offense. "There has been much diversity of opinion," said Arnold, C. J., " as to what would constitute mitigation of punishment in such a case; but the view best sustained by reason and authority is, that a law changing the punishment of offenses committed before its passage is objectionable, as being ex post facto, unless the change consists in the remission of some separable part of the punishment before prescribed, or is referable to prison discipline or administration as its primary object.' It is enough for courts to render judgment according to law, without being required to determine the relative severity of different punishments, when there is no common standard in the matter by which the mind can be satisfactorily guided."2 § 471. Laws impairing obligation of contracts. The federal constitution provides that no state shall pass any law impairing the obligation of contracts.3 The obligation of a contract is the law which binds the parties to perform their agreement. It is the means provided by law by which it can be enforced, by which the parties can be obliged to perform it. Whatever legislation lessens the efficacy of these means impairs the obligation. A contract valid at its inception cannot be made invalid, its construction changed, or the remedy thereon taken away or materially impaired, by subsequent legislation. The laws which exist at the time and place of the making of a contract determine its validity, construction, discharge, and measure of efficiency for its enforce ment. A statute of frauds embracing a pre-existing parol contract not before required to be in writing would affect its validity. A statute declaring that the word "ton" should thereafter be held, in prior as well as subsequent contracts, to 1 Cooley, C. L. 329. den v. Saunders, supra; Bronson v. Lindzey v. State, 65 Miss. 542; Kinzie, 1 How. 319; McCracken v. Cooley, C. L. 324. 3 Art. I, sec. 10. 4 Ogden v. Saunders, 12 Wheat. 213; Sturges v. Crowninshield, 4 id. 122. 5 Louisiana v. New Orleans, 102 U. S. 203. Green v. Biddle, 8 Wheat. 92; Og Hayward, 2 id. 612; Walker v. White- |