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and intention of the prohibition is this: that the legislatures of the several States shall not pass laws after a fact done by a subject or citizen, which shall have relatiou to such fact, and 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 retrospective operation. I do not think it was inserted to secure the citizen in his private rights of either property or contracts. The prohibitions not to make anything but gold and silver a tender in payment of debts, and not to pass any law impairing the obligation of contracts, were inserted to secure private rights; but the restriction not to pass any ex post facto law was to secure the person of the subject from injury or punishment, in consequence of such law. If the prohibition against making ex post facto laws was intended to secure personal rights from being affected or injured by such laws, and the prohibition is sufficiently extensive for that object, the other restraints I have enumerated were unnecessary, and therefore improper, for both of them are retrospective.
“I will state what laws I consider ex post facto laws, within the words and the intent of the prohibition. 1st. Every law that makes an action, done before the passing of the law, and which was innocent when done, criminal, and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment than the law annexed to the crime when committed. 4th. 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 offense, in order to convict the offender. All 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 an ex post facto law; 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 there 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. The expressions ex post facto are technical; they had been in use long before the revolution, and had acquired an appropriate meaning by legislators, lawyers, and authors."1 It is not difficult to understand the scope of the constitutional pro
1 See Fletcher v. Peck, 6 Cranch, 87; Ogden v. Saunders, 12 Wheat. 213; Satterlee o. Matthewson, 2 Pet. 380; Watson v. Mercer, 8 Pet. 88; Charles River Bridge v. Warren Bridge, 11 Pet. 420; Carpenter o. Pennsylvania, 17 How. 456; Hopt o. Utah, 110 U. S. 574; Lock v. Dane, 9 Mass. 360; Woart v. Winnick, 3 N. H. 473; Dash 0. Van Kleek, 7 Johns. 477; Moore v. State, 43 N. J. 203; Perry's Case, 3 Gratt. 632; Evans v. Montgomery, 4 Watts & S. 218; Huber o. Reilly, 53 Pa. St. 115. But a retrospective law will be ex post facto, notwithstanding it does not provide for a criminal prosecution. The exaction of any penalty for the doing of an act, which before the law was altogether lawful, makes the law ex post facto. Falconer v. Campbell, 2 McLean, 195; Wilson o. Ohio, etc., R. R. Co., 64 Ill. 542.
tection against ex post facto laws, except as to those cases, in which it is held that when a less punishment is inflicted, the law is not ex post facto. The difficulty in these cases is a practical one, arising from an uncertainty concerning the relative grievousness and weight of different kinds of punishment. That a law is constitutional, which mitigates the punishinent of crimes already committed, cannot be doubted. But all punishments are degrading, and in no case of an actual change of punishment, as for example, from imprisonment to whipping, or vice versa, cap the court with certainty say that the change works a mitigation of the punishment. But while the courts of many of the States have undertaken to decide this question of fact, the New York Court of Appeals has held that “ a law changing the punishment for offenses committed before its passage is ex post facto and void, under the constitution, unless the change consists in the remission of some separable part of the punishment before prescribed, or is referable to prison discipline or penal administration, as its primary object.”
Woart v. Winnick, 3 N. H. 179; State v. Arlin, 39 N. H. 179; Hartung t. People, 22 N. Y. 95, 105; Shepherd v. People, 25 N. Y. 124; State o. Wiliams, 2 Rich. 418; Boston v. Cummings, 16 Ga. 102; Strong v. State, 1 Blackf. 193; Clarke v. State, 23 Miss. 261; Maul v. State, 25 Tex. 166; Torner o. State, 40 Ala. 21.
* See State o. Arlin, 39 N. H. 179; State o. Williams, 2 Rich. 418; Strong o. State, 1 Blackf. 193; Herber v. State, 7 Tex. 69.
• Davies, J., in Ratzky v. People, 29 N. Y. 124. See Shepherd v. People, 25 N. Y. 406. “ In my opinion,” says Denio, J., in Hartung v. People, 22 N. Y. 95, 105, “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 five or the imprisonment might, I think, be lawfully applied to existing offenses; and so, in my opinion, the term of 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 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 we are considering. The change wrought by the act of 1860, in the punishment of the existing offenses 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, his jurisdiction 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 the conviction, and of all of his successors during the lifetime of the convict. He may be ordered to execution at any time, upon any notice, or without notice. Under one of the repealed sections of the Revised Statutes, it was required that a period should intervene between the sentence and the execution of not less than four, por more than eight weeks. If we stop here, the change effected by the statute is between an execution within a limited time, to be prescribed by the court, or a pardon or commutation during that period, on the one hand, and the placing the convict at the mercy of the executive magistrate for the time, and his successors, to be executed at his pleasure at any time after one year, on the other. The sword is indefinitely suspended over his head, ready to fall at any time. It is not enough to say, if ever 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 offense, by substituting for the prescribed penalty & 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 can not thus experiment upon the criminal law. The law, moreover, prescribes one year's imprisonment, at hard labor in the State prison, in addition to the punishment of death. In every case of the execution of a capital sentence, it must be preceded by the year's imprisonment at hard labor.
Except in regard to the material changes in the rules of evidence which tend to make conviction easier, laws for the regulation of criminal procedure are always subject to repeal or amendment, and the new law will govern all prosecutions that are begun or are in progress after its enactment, it matters not when the offenses were committed. Such a law is not deemed an ex post facto law when applied to the prosecution of offenses commited before the change in the law.1
§ 32. Preliminary confinement to answer for crime. It is the benign principle of every system of jurisprudence that one is presumed to be innocent of all criminal accusations, until he is proven to be guilty, and that presumption is so strong that the burden is thrown upon the prosecution of proving the guilt beyond the shadow of a doubt, in order to secure a conviction. But, notwithstanding this general presumption of innocence, the successful prosecution and punishment of crimes require that the necessary precautions be taken to secure the presence of the accused during the trial and afterwards, in case of conviction, and the fear of a default in attendance becomes greater in porportion as the likelihood of conviction increases. In order, therefore, that the laws may be enforced, and the guilty be brought to trial and punishment, it is necessary that every one, against whom a charge of crime has been laid, should submit to arrest by the proper officer, whose duty it is to bring the accused before the court or officer by whom the order for arrest has been issued.
It is enough, in my opinion, that it changes it (the pun. ishment) in any manner, except, by dispensing with divisible portions of it; but upon the other definition announced by Judge Chase, where it is implied that the change must be from a less to a greater punishment, this act can not be sustained.”
1 Gut o. State, 9 Wall. 35; State v. Learned, 47 Me. 426; State o. Corson, 59 Me. 137; Commonwealth v. Hall, 97 Mass. 570; Commonwealth v. Dorsey, 103 Mass. 412; State v. Wilson, 48 N. H. 398; Walter v. People, 32 N. Y. 147; Stokes v. People, 53 N. Y. 164; Warren v. Commonwealth, 37 Pa. St. 45; Rand o. Commonwealth, 9 Gratt. 738; State v. Williams, 2 Rich. 418; Jones v. State, 1 Ga. 610; Hart v. State, 40 Ala. 32; State v. Manning, 14 Tex. 402; Dowling v. Mississippi, 13 Miss. 664; Walton v. Commonwealth, 16 B. Mon. 15; Lasure v. State, 10 Ohio St. 43; McLaughlin o. State, 45 Ind. 338; Brown v. People, 29 Mich. 232; People v. Olmstead, 30 Mich. 431; Sullivan v. Oneida, 61 Ill. 242; State v. Ryan, 13 Minn. 370; State o. O'Flaherty, 7 Nev. 153.