§ 159. Same-Legislative acts valid as to one class of cases and void as to another class.-A legislative act may be entirely valid as to some classes of cases, and clearly void as to others. A general law for the punishment of offenses, which should endeavor to reach, by its retroactive operation, acts before committed, as well as to prescribe a rule of conduct for the citizen in future, would be void so far as it was retrospective; but such invalidity would not affect the operation of the law in regard to the cases which were within the legislative control.63

65

§ 160. Same-Illustrations.-The provisions of the constitution of Missouri, adopted immediately after the civil war, imposing a test oath as a condition of following certain professions, and the acts of congress imposing a test oath as a condition of practicing as attorneys and counsellors in the courts of the United States, were obnoxious to the constitutional inhibition against the passing of ex post facto laws. And so a legislative enactment 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, is an ex post facto law.66 A statute which requires the warrant issued for the execution of a capital sentence to appoint and designate a week of time within which such sentence must be executed, and which gives to the warden of the prison power to fix the particular day and hour for the execution of the sentence within the week specified, and requires that the time so fixed for the execution shall be by him kept secret, and in no manner divulged except privately, and to a limited number of persons is ex post facto as to crimes previously committed, the mental anxiety resulting from the secrecy and the power in the warden to fix the time of execution being an increase and aggravation of the offender's punishment. A statute changing the law so as to impose solitary confinement on a convicted felon while awaiting execution, is, as to offenses previously committed, ex post facto, because it imposes an additional pun

63 Jaehne V. People of New York, 128 U. S. 189 (32:398); Bittenhaus v. Johnston, 92 Wis. 594, 66 N. W. 806, 32 L. R. A. 381.

64 Cummings V. Missouri, 4 Wall. 277, 332 (18:356).

67

65 Ex parte Garland, 4 Wall. 333, 399 (18:366).

66 Fletcher v. Peck, 6 Cranch, 87 (3:162).

67 Ex parte Medley, 134 U. S. 160, 176 (33:835).

ishment.es A statute which makes it a misdemeanor to attempt to practice medicine after conviction of a felony, is within the police power of the state, and is not unconstitutional, even when applied to a person who was convicted of a felony before the passage of the act." The provision of the constitution of Utah, providing for trial by a jury of eight persons instead of twelve, as previously, in courts of general jurisdiction, is, when applied to a felony committed within the limits of the state while it was a territory, within the inhibition against ex post facto laws; 7° but a statute providing that persons selected for jury service shall possess good intelligence, sound judgment, and fair character, is, when applied to a capital felony committed before its passage, a legitimate exercise of legislative power." A statute providing that, comparison of a disputed writing with any writing proved to the satisfaction of the judge to be genuine shall be permitted to be made by witnesses, and such writings and the evidence of witnesses respecting the same may be submitted to the court and jury as evidence of the genuineness or otherwise of the writing in dispute, is not, as to crimes committed before its passage, an ex post facto law.72 A statute which confers upon the state in a criminal case the right of appeal from a judgment granting the defendant a new trial, which was enacted after the commission of the offense, and after the trial, but before the trial court had granted a new trial, is not within the inhibition against the passage of ex post facto laws.73

§ 161. Same Statutes mitigating punishment-What is a mitigation-New York rule.-The justice delivering the opinion in the leading case said, upon this point: "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." "

There has been some want of harmony in the decisions as to what is a mitigation of punishment," but the courts of New York have adopted a rule which seems reasonable, namely: (1) It would be compentent for the legislature, by a general law, to remit any separable part of the punishment; and (2) any changes which should be referable to prison discipline, or penal administration, as its primary object, such as changes in the manner and kind of employment of convicts sentenced to hard labor, the system of supervision, the means of restraint, or the like, may be made to take effect upon past as well as upon future offenses, although such changes might operate to either increase or mitigate the severity of the punishment after conviction.76 "An act plainly mitigating the punishment of an offense is not ex post facto; on the contrary, it is an act of clemency. A law which changes the punishment of an of fense from death to imprisonment for life, is a law mitigating the punishment, and, therefore, not ex post facto.""

§ 162. Same-When accused discharged-When the new law is found to be ex post facto, and that law wholly repeals and displaces the law in force at the time the crime was committed, and there is no saving as to past offenses, the accused cannot be punished at all, but must be wholly discharged.78

§ 163. Constitutional right of trial by jury in civil cases at law. In the federal judicial system, the distinction between common law and equity, as it existed in England at the time of the separation of the two countries, has been maintained, although both jurisdictions are vested in the same courts; and the seventh amendment to the constitution declares that,

75 State v. Arlin, 39 N. H. 179; Strong v. State, 1 Blackf. 193; Heber v. State, 7 Tex. 69; Lynn v. State, 84 Md. 78, 35 Atl. 22; Hartung v. People, 22 N. Y. 104, 25 N. Y. 406, 26 N. Y. 167, 28 N. Y. 410.

76 Hartung v. People, 22 N. Y. 1041, 25 N. Y. 406, 26 N. Y. 167 28 N. Y. 410; Ratzky v. People 29 N. Y. 124; People v. Hayes, 140 N. Y. 484, 37 Am. St. Rep. 572.

77 Chief Justice Shaw in Commonwealth v. Wyman, 12 Cush.

79

237; People v. Hayes, 140 N. Y. 484, 37 Am. St. Rep. 572.

78 Re Medley, 134 U. S. 160 (33:835); Hartung v. People, 22 N. Y. 105, 25 N. Y. 406, 26 N. Y. 167, 28 N. Y. 410.

79 U. S. Const. art. III, sec. 2; Ex parte Sawyer, 124 U. S. 200, 225 (31:402); Fenn v. Holme, 21 How. 481, 487 (16:198); Thompson v. Central Ohio R. R. Co., 6 Wall. 134 (18:765); Heine v. Levee Commrs., 19 Wall. 655 (22:223); Robinson v. Campbell, 3 Wheat.

"in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved."

§ 164. Same Meaning of the phrases "cases in law" and "suits at common law."-The phrases "suits at common law," contained in the seventh amendment, and "cases in law," contained in the constitution as originally adopted,so have the same signification, and mean not merely suits which the common law recognizes among its old and settled remedies, but they embrace all suits for the determination and settlement of legal rights whatever may be their peculiar form, and which are not of equity and admiralty jurisdiction.1

§ 165. Same--Trial by jury defined.-Trial by jury, in civil cases, in the courts of the United States, and within the meaning of the federal constitution, is not merely a trial by a jury of twelve men before an officer vested with authority to cause them to be summoned and impaneled, to administer oaths to them, and to the witnesses, and to the constable in charge, and to enter judgment on their verdict, and issue execution; but it is a trial by a jury of twelve men, in the presence and under the superintendence of, and presided over by a judge, with power not only to rule upon the admissibility of evidence, but also to instruct the jury upon the law applicable to the case, and, when in his judgment the due administration of justice requires it, to aid the jury by explaining and commenting upon the testimony, calling their attention to parts of it which he thinks important, and even giving them his opinion on questions of fact, provided only he submit those questions to their determination; and with power in the presiding judge to set aside the verdict of the jury and grant a new trial, if in his opinion and discretion, the due and proper administration of justice requires it. The jury trial secured by the constitution is a common law jury trial. The constitution secures a trial by jury, without defining what that trial is, and we are

221; Parsons v. Bedford, 3 Pet. 446, 447; Stroeher v. Lucas, 6 Pet. 768, 769; Bennett v. Butterworth, 11 How. 669; Fitts v. McGhee, 172 U S. 516, 533 (43:535).

So U. S. Const. art. III, sec. 2.

81 Parsons v. Bedford, 3 Pet. 433 (7:732); Parish v. Ellis, 16 Pet. 454 (10:1029); Hipp v. Babin, 19 How. 278 (15:635); Root v. Railway Co., 105 U. S. 206 (26:981).

left to the common law to learn what it is that is secured. At the time of the adoption of the constitution, and for generations before, both in England and in the colonies, a trial by jury was a trial of an issue or issues. of fact by a jury of twelve men, in a superior court of common law, under the direction and superintendence of the court, and this direction and superintendence, including the power to set aside the verdict of the jury and grant a new trial, was an essential part of the trial, and in the federal courts, each party, the losing as well as the winning, has a right to the legitimate trial by jury, with all its safeguards, as they existed and were understood when the constitution was adopted.82

§ 166. Same-Not to be defeated by blending legal and equitable demands.-The right of trial by jury in actions at law in the courts of the United States is fundamental, and cannot be defeated by indirection or circumvention; and, although, under the dual system of government created by the constitution, a large part of the functions of the federal courts are to administer state laws between competent parties, and those courts follow the state procedure in actions at law, yet, nevertheless, no state legislation establishing procedure and blending legal and equitable remedies will be followed in the federal courts to the extent of defeating a trial by jury on legal causes of action. 83

$167. Same-Philippine Islands.-The constitutional guaranty of trial by jury has not been extended to the Philippine Islands. In the case cited, the court reached the following conclusions, here stated in the words of the court, namely:

"(1) That while the Philippine Islands constitute territory which has been acquired by, and belongs to, the United States, there is a difference between such territory and the territories

82 Capital Taction Co. v. Hof, 174 U. S. 1, 46 (43:873); United States v. Philadelphia & Reading Railroad Co., 123 U. S. 113, 114 (31:138); Sarf v., United States, 156 U. S. 51, 106 (39:343); Thompson v. Utah, 170 U. S. 343, 350 (42:1061); Vicksburg & M. Railroad Co. v. Putnam, 118 U. S. 545,

553 (30:257); United States v. 1363 Bags Merchandise, 2 Sprague, 85, 88.

83 Scott v. Neely, 140 U. S. 106, 117 (35:358); Cates v. Allen, 149 U. S. 458 (37:808).

84 United States v. Dorr, 190 U. S. Appendix I (47:1187).