tice 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. § 518. In Watson v. Mercer 2 (1834), Mr. Justice Story "It is clear that this court has no right to pronounce says: 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. Pennsyl vania, decided in 1854. The examination of the recent and most important Test Oath Cases is postponed to the close of this subsection. § 518 a. This subject has been carefully examined by the Supreme Court in several recent cases. In Kring v. Missouri, 107 U. S. 221, Kring had been convicted upon his own plea of murder in the second degree, and sentenced to imprisonment for twenty-five years. By the law of Missouri in force when the murder was committed the conviction and sentence 16 Cranch, 138. 28 Pet. 88. of murder in the second degree was an acquittal of the crime of murder in the first degree. Before the plea of guilty in the second degree had been entered, and of course before conviction and sentence, this law was so far changed as to provide that if the conviction of the minor crime should be duly set aside as illegal, it should not operate as an acquittal of the higher crime. After this law was passed, Kring appaled from his conviction of murder in the second degree, and the conviction was reversed. Being subsequently indicted and convicted of murder in the first degree, the question arose whether the new law was ex post facto; and it was held by a majority of the court (Miller, J., giving the opinion) that it was ex post facto, and the second conviction illegal. But in an able dissenting opinion by Matthews, J., concurred in by Waite, C. J., and Bradley and Gray, JJ., the opposite view was maintained. Both opinions are exhaustive and deserve the reader's careful attention. In a still later case the laws of Utah, § 378, provided that "persons against whom judgment has been rendered upon a conviction for felony, unless pardoned by the gov ernor or such judgment has been reversed on appeal, shall not be witnesses." March 9, 1882, after the date of an alleged homicide, but prior to the trial of the case, the above act was repealed, and a person then confined in the penitentiary for murder was permitted to testify against the prisoner. It was held that the repealing act was not ex post facto, and Harlan, J., said: “Statutes which simply enlarge the class of persons who may be competent to testify in criminal cases are not ex post facto in their application to prosecutions for crimes committed prior to their passage; for they do not attach criminality to any act previously done, and which was innocent when done; nor aggravate any crime theretofore committed; nor provide a greater punishment therefor than was prescribed at the time of its commission; nor do they alter the degree, or lessen the amount or measure, of the proof which was made necessary to conviction when the crime was committed." 1 Hopt v. Utah, 110 U. S. 574. ED. § 519. The current of decision in the highest national tribunal being thus uniform, I turn to a few leading cases in the 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 constitutional 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. 1 42 Me. 429. 8 45 Ibid. 514. See Opinion of Mellen, C. J., 2 Greenl. 2 45 Ibid. 507. 42 Greenl. 275. In § 520. In New Hampshire the analogous clause in the Constitution is peculiar. It is as follows: "Retrospective laws are highly injurious, oppressive, and unjust. No such laws, therefore, should be made, either for the decision of civil causes, or the punishment of offences." This language is certainly untechnical, and somewhat obscure; but it is far broader than that of the United States Constitution. The Supreme Court of the state have had frequent occasions to give it a construction; and I will briefly refer to the most important cases. Woart v. Winnick1 (1826), the court determined that an act of the state legislature repealing a prior statute of limitations, was void as respects all actions pending at the time of the repeal, in which the cause of action was destroyed or barred by that statute. Plainly, such repealing act was not ex post facto; and this the court concede, placing their judgment entirely upon the other branch of the constitutional provision which forbids retrospective laws "for the decision of civil causes." In Rich v. Flanders 2 (1859), the question was again presented to the Supreme Court of New Hampshire, and examined with great learning and ability. The statute under review was one changing the long-established rules of evidence, and admitting the parties to suits to testify in their own behalf. The point for decision was as to the constitutionality of this act when applied to causes of action which had accrued, and rights which had become vested, prior to its passage. The opinion was delivered by Mr. Justice Sargent. After determining that the law was not ex post facto, he proceeds to examine the meaning of "retrospective laws," as the term is used in the Constitution. Remarking that "ex post facto" has received a distinct technical signification; that it is confined to criminal legislation, and even to such particular measures as retro-act to the injury of a person accused, to such as make an act a crime which was innocent, or increase its punishment, or render conviction easier, he proceeds to inquire whether "retrospective laws" have not also a defined technical meaning. Do they include all statutes relating to civil 1 3 N. H. 473. 2 39 N. II. 304. matters which retro-act? They do not. They do not embrace such legislative measures as affect the remedy alone. Mr. Justice Sargent cites the case of De Cordova v. Galveston,' 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: "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. § 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 8 Ibid. 260. 14 Texas, 470. 47 Humph. 130. 65 R. I. 185. 2 2 Yerger 125. 6 39 N. H. 322. 7 Ibid. 190. |