Justice Sargent cites the case of De Cordova v. Galveston,1 from Texas, and the cases of Hope v. Johnson,2 Vanzant v. Waddell, and Brandon v. Green, from Tennessee, in which the same construction was given to identical clauses in the constitutions of those states. He thus concludes the discussion: 5 "We deduce from all the decisions upon the subject this rule that any statute which changes or affects the remedy merely, and does not destroy or impair any vested right, - which does not destroy any existing right of action or defence, or create any new ground of action or defence, is not a retrospective law in the sense in which such laws are prohibited by the Constitution, though acting upon past contracts and rights previously acquired and vested, even though in changing or affecting the remedy the rights of parties may be incidentally affected thereby." The court holds that rules of evidence are part of the remedy; that when a person enters into a relation from which a right or obligation may spring, he has no vested right that the rules of evidence then existing, applicable to the establishment of his relation, shall remain the same when the right or obligation is sought to be judicially enforced. The whole reasoning of this opinion will be found instructive in connection with the kindred subject of laws impairing the obligation of a contract. 6 § 521. In The State v. Paul (1858), the Supreme Court of Rhode Island was called upon to examine a statute prohibiting the sale of spirituous liquors. Ames, C. J., says: "The statute in question is supposed to be an ex post facto law, because, although it does not in terms punish one for having sold or kept liquor for sale before the passage of the act, yet it absolutely prohibits manufacturers and others from selling, or keeping for sale within the state, liquors manufactured or bought by them previous to the passage of the act. It is obvious that this objection proceeds either upon a misconstruction of the statute in question, or upon a misunderstanding of the constitutional meaning of an ex post facto law. The statute, 1 4 Texas R. 470. 2 2 Yerger's R. 125. 5 2 Chandler's R. 322. 7 Ibid. 190. 3 Ibid. 260. it is admitted, does not in words punish that as an offence which was not such before its passage. That it does in effect prohibit manufacturers and others who have manufactured or bought liquor before the passage of the act, from selling it or keeping it for sale within the state afterwards, and thus affects injuriously to them the value of such property on their hands, does not make it an ex post facto law in the constitutional sense. To meet the well-settled definition of such a law, a statute must not only retro-act, but must retro-act by way of criminal punishment upon that which was not a crime before its passage." § 522. Perhaps the most interesting, and, in many respects, most extraordinary case which has arisen, involving the meaning and effect of the clause which prohibits ex post facto laws, is Mary Hartung v. The People 1 (1860). The facts were as follows: Mrs. Hartung was indicted, tried, convicted, and sentenced to be hung for the murder of her husband, who died in 1858. The judgment was affirmed by the Supreme Court, January 9th, 1860. The prisoner immediately carried the case to the Court of Appeals for review. At the time of the offence, trial, conviction, and affirmance by the Supreme Court, the provisions of the Revised Statutes controlled the case, which defined the crime of murder, and declared that, upon conviction thereof, the prisoner should be sentenced to death by the court trying him, which sentence should be carried into effect within certain definite and short limits of time. After the affirmance by the Supreme Court, and before the argument in the Court of Appeals, the legislature passed a statute which in terms repealed all former laws relating to the crime of murder and to the punishment thereof, with no saving clause excepting offences already committed but not as yet punished. This new statute defined the crime of murder, and established the punishment, as follows: That the person convicted should be confined for at least one year in the state prison, and after the expiration of the year should suffer death by hanging whenever the governor of the state should issue his warrant for that purpose. This being the law of the state when the case was 1 8 Smith's (22 N. Y.) R. 95. argued before the Court of Appeals, the counsel for the prisoner urged that this woman could not be punished at all; that the statute under which she was convicted had been abrogated; that the new enactment could not be applied to her case, for to do so would make it ex post facto. § 523. After disposing of the first point, and holding that, there being no reservation, the prisoner could not be punished under the original statute, but must be, if at all, under the new one, Denio, J., who gave the opinion of the court, proceeds: 1 "And this leads me to the second question to be considered, whether it is competent for the legislature, after the conviction of a person prosecuted for murder, to change the punishment which the law has annexed to the offence, for another and different punishment, as was attempted to be done in this case. 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 offences of which they were convicted. But the case cannot be determined upon such considerations. No one can be criminally punished in this country, except by a law prescribed for his government by the sover eign authority before the imputed offence was committed, and which existed as a law at the 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. No state shall pass any ex post facto law, is the mandate of the Constitution of the United States. The present question is, whether the provision under immediate consideration is such a law within the meaning of the Constitution. I am of opinion that it is. The substituted punishment is made applicable to offences committed under the old law, where convictions have already been had. To abolish the penalty which the law attached to a crime when it was committed, and to declare it to 18 Smith's R. 103. be punishable in another way, is, as respects the new punishment, the essence of an ex post facto law.” § 524. The learned judge then quotes the language of Marshall, C. J., in Fletcher v. Peck, and of Chase, J., in Calder v. Bull, and proceeds: "Neither of the cases in which these remarks were made, involved any question as to the kind or degree of change in the punishment of an offence already committed, which might be made without a violation of the Constitution. A rule upon that subject is now to be laid down for the first time. In my opinion, then, it would be perfectly competent for the legislature, by a general law, to remit any separable portion of the prescribed punishment. For instance, if the punishment were fine and imprisonment, a law which should dispense with either the fine or the imprisonment might be lawfully applied to existing offences; and so, in my opinion, the term of the imprisonment might be reduced, or the number of stripes diminished in cases punishable in that manner. 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. And 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 offences, as changes in the manner or kind of employment of convicts sentenced to hard labor, the system of supervision, the means of restraint, and the like. Changes of this sort would operate to increase or to mitigate the severity of the punishment of the convict, but would not raise any question under the constitutional provision we are considering. The change wrought by the act of 1860 in the punishment of existing offences of murder, does not fall within either of these exceptions. If it is to be construed to vest in the governor a discretion to determine whether the convict should be executed, or remain a perpetual prisoner at hard labor, this would only be equivalent to what he might do under the authority to commute a sentence. But he can, under the Constitution, only do this once for all. If he refuses the pardon, the convict is executed according to the sentence. If he grants it, the jurisdic tion of the case ends. The act in question places the convict at the mercy of the governor in office at the expiration of one year from the time of his conviction, and of all his successors during the lifetime of the convict. He may be ordered to ex ecution at any time, upon any notice, or without notice. The sword is indefinitely suspended over his head, ready to fall at any moment. It is not enough to say, even if that can be said, that most persons would probably prefer such a fate to the former capital sentence. It is enough to bring the law within the condemnation of the Constitution, that it changes the punishment after the commission of the offence, by substi tuting for the prescribed penalty a different one. We have no means of saying whether or not the other would be the most severe in a given case. That would depend upon the temperament and disposition of the convict. The legislature cannot thus experiment upon the criminal law. This law, moreover, prescribes one year's imprisonment at hard labor in a state prison, in addition to the punishment of death. As the convict is, consequently, under this law, exposed to the double infliction, it is, within both the definitions which have been mentioned, an ex post facto law. It changes the punishment, and inflicts a greater punishment than that which the law annexed to the crime when committed." The court unanimously held the statute void as to past offences; so that, the old law having been repealed with no saving of cases already arisen, such crimes were absolutely unpunishable in New York, and several murderers escaped all penalty and were discharged, — a striking illustration of the heedlessness and ignorance which characterize so much of modern legislation. § 525. The Test Oath Cases. The citations already made are enough to show the very general uniformity in the construction which the national and state courts have placed upon. the clause of the Constitution forbidding ex post facto laws. I shall, therefore, conclude this subject with an examination of the recent Test Oath cases, Cummings v. Missouri,1 and Ex parte Garland.2 The facts of these cases have been already stated with sufficient fulness in §§ 504, 505. On the argument it was urged in support of the Missouri constitution, and 1 4 Wallace's R. 277. 2 Ibid. 333. |