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 : (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 opinions to the same effect. The statute of the Connecticut legislature 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. 8 § 518. In Watson v. Mercer (1834), Mr. Justice Story says: "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. Pennsyl vania,5 decided in 1854. The examination of the recent and most 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 1 6 Cranch's R. 87. 4 Ibid. 109. 2 Ibid. 138. 38 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 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. § 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. 21 Hubbard's (45 Me.) R. 507. 4 2 Greenleaf's R. 275. Greenleaf's R. 288-294. In 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. Winnick' (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 matters which retro-act? They do not. They do not embrace such legislative measures as affect the remedy alone. Mr. 1 8 New Hamp. R. 473. 2 2 Chandler's (39 N. H.) R. 304. : 3 4 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. § 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. |