and of the bench, I propose to examine with some care the meaning of the phrase ex post facto, and the powers of legislatures to pass retro-active statutes; although the weight of judicial authority is so overwhelming, that the matter is settled beyond all dispute. § 513. I will first state the propositions which are established. Ex post facto is a term of technical import. It does not include all legislation operating upon antecedent facts and circumstances; it does not apply to civil legislation at all; it has only reference to the criminal law. "Ex post facto laws” must, therefore, ex vi termini, be criminal laws. They are such, and only such, as declare an act criminal, and provide for its punishment, which, at the time of its commission, was not a crime; or such as change the punishment of a known crime in any other manner than by mitigating it, and are to operate upon past as well as future offences; or such as alter the rules of evidence or other procedure, so that conviction. shall be made easier, and are to apply as well to those who committed the act prior, as to those who committed it subsequently, to the passage of the statute. Although legislative measures which fall within the foregoing description, generally provide for a judicial trial of the person charged with crime, and affect the penalty to be imposed upon him as the result of such trial, or the evidence by which a conviction is obtained, yet this is not necessary; the law would be no less ex post facto, which inflicted the penalty by its own direct operation. All ex post facto laws are, therefore, retro-active; but all retro-active laws are not ex post facto. § 514. Congress and the state legislatures do possess the power to adopt and enforce measures relating to civil affairs, which shall have a retro-active effect, unless they are restrained by some other provisions in the national or state constitutions than the one under consideration. There are several such provisions; the one forbidding states to pass laws impairing the obligation of contracts; that prohibiting the taking of private property for public purposes without compensation; that surrounding life, liberty, and property, with the safeguards of 'due process of law," and the like. But all these, far-reach ing as they are, do not cover the entire ground; there are many instances in which the legislatures have passed, and may still pass, statutes retro-active in their effect, and yet not render themselves obnoxious to any restrictions or inhibitions of the organic law either of the United States or of the loca. commonwealths. I should remark in passing, that most of the states have reenacted the prohibition upon ex post facto laws in their own constitutions, while a few have gone farther and prevented their legislatures from passing retro-active statutes of a civil nature. § 515. I shall now examine the course of decision in the Supreme Court of the United States, expository of this restrictive provision; and shall then refer to a few leading cases in the state courts. The first case is Calder v. Bull1 (1798). The facts were shortly as follows: A court of probate in Connecticut had, in 1793, rendered a decree refusing to admit a certain will to probate the time for appeal had expired, and the rights of the parties, so far as they could be established according to the course and practice of the courts in that state, were fixed. Thereupon, in 1795, the legislature of Connecticut passed a law setting aside the decree of the probate court, and ordering a new hearing. This having been had, a new decree was made establishing the will, which decree was affirmed by the highest court of the state. The case was then carried to the Supreme Court of the United States, and the action of the lower courts was sought to be reversed, on the sole ground that the state statute was ex post facto, and therefore void. Mr. Justice Chase delivered the leading opinion, from which I quote some passages. After a few observations upon the power of any legislative body in a free country to make laws manifestly contrary to justice, he proceeds: "I shall endeavor to show what law is to be considered an ex post facto law. The prohibition in the letter is not to pass any law concerning and after the fact; but the plain and obvious meaning and intention of the prohibition is this: that the legislatures shall not pass laws after a fact done by a subject or citizen, which 1 3 Dallas's R. 386. 2 Ibid 390. shall have relation to such fact, and shall punish him for having done it. The prohibition, considered in this light, is an additional bulwark in favor of the personal security of the subject to protect his person from punishment by legislative acts having a retro-active operation. I do not think it was intended to secure the citizen in his private rights of either property or contract. I will state what laws I consider ex post facto, within the words and intent of the prohibition. § 516." (1.) Every law that makes an action done before the passage of the law, and which was innocent when done, criminal, and punishes such action: 66 (2.) Every law that aggravates a crime, or 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: "(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. These and similar laws are manifestly unjust and oppressive. In my opinion the true distinction is, between ex post facto laws and retrospective laws. Every ex post facto law must necessarily be retrospective; but every retrospective law is not ex post facto. The former only are prohibited. 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 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 rule of evidence for the purpose of conviction. There is a great and apparent difference between making an unlawful act lawful, and the making an innocent act criminal and punishing it as a crime." Patterson and Iredell, JJ., delivered pinions to the same effect. The statute of the Connecticut egislature was therefore sustained. 517. In the case of Fletcher v. Peck 1 (1810), Chief Justice Marshall had occasion to remark upon the meaning of the phrase. The facts of the case are complicated, and will be referred to in another portion of this section. The Chief Justice says: "An ex post facto law is one which renders an act punishable in a manner in which it was not punishable when it was committed. Such a law may inflict penalties on the person, or may inflict pecuniary penalties which swell the public treasury. The legislature is, then, prohibited from passing a law by which a man's estate, or any part of it, shall be seized for a crime which was not declared by some previous law to render him liable to that punishment." This definition of Chief Justice Marshall has been spoken of by subsequent writers and judges as wonderfully clear, comprehensive, and accurate. says: § 518. In Watson v. Mercer (1834), Mr. Justice Story "It is clear that this court has no right to pronounce an act of the state legislature void, as contrary to the Constitution of the United States, from the mere fact that it divests antecedent rights of property. The Constitution of the United States does not prohibit the states from passing retrospective laws generally; but only ex post facto laws. Now it has been solemnly settled by this court, that the phrase, ex post facto laws, is not applicable to civil laws, but to penal and criminal laws which punish a party for acts antecedently done, that were not punishable at all, or not punishable to the extent or in the manner described. In short, ex post facto laws relate to penal and criminal proceedings which impose punishments or forfeitures, and not to civil proceedings which affect private rights retrospectively." The same doctrine was reaffirmed in Carpenter v. Pennsy vania,5 decided in 1854. The examination of the recent and .nost important Test Oath Cases is postponed to the close of this subsection. § 519. The current of decision in the highest national tribunal being thus uniform, I turn to a few leading cases in the 16 Cranch's R. 87. 4 Ibid. 109. 2 Ibid. 138. 3 8 Peters' R. 88. state courts. In Lord v. Chadbourne 1 (Maine, 1856), Appleton, J., delivering the opinion of the court, said: "The legislature may pass laws altering, or modifying, or even taking away, remedies for the recovery of debts, without incurring a violation of the provisions of the Constitution which forbid the passage of ex post facto laws." In the same state, the subsequent case of Coffin v. Rich 2 contains observations made by Davis, J., which need criticism. He says "There can be no doubt the legislatures have the power to pass retrospective statutes, if they affect remedies only. Such is the wellsettled law of this state. But they have no constitutional power to enact retrospective laws which impair vested rights, or create personal liabilities. This subject was elaborately discussed by Mellen, C. J., in the case of the Kennebec Purchase v. Laboree, and it was there held that the Constitution secures citizens against the retro-active effect of legislation upon their property. And in regard to the question what is a retro-active law thus unconstitutional, the court adopted the definition of Judge Story, a statute which creates a new obligation, or imposes a new duty." Turning to this case of Kennebec Purchase v. Laboree, we shall find that it was decided upon provisions in the Constitution of Maine similar in words and import to those in the organic law of the Union, forbidding a person to be deprived of life, liberty, or property without due process of law, and that it had no relation whatever to the clause concerning ex post facto laws. The facts of the case show that it called in question a statute which operated directly to transfer the lands of one person to another The decision is in strict accordance with all true con stitutional interpretation, but is no authority for the position that state legislatures are restricted, beyond the provisions of their own, or the national, constitution, from passing laws which affect civil rights alone, and which are retro-active.5 owner. - § 520. In New Hampshire the analogous clause in the Constitution is peculiar. It is as follows: "Retrospective laws 1 2 Adams's (42 Me.) R. 429. 3 1 Hubbard's (45 Me.) R. 514. 21 Hubbard's (45 Me.) R. 507 4 2 Greenleaf's R. 275. 5 See Opinion of Mellen, C. J., 2 Greenleaf's R. 288-294. |