difficult to understand the scope of the cosntitutional protection 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 punishment of crimes already committed, cannot be doubted.1 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, can 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.' 3 a felony, so far as the statute is made to apply to persons who were convicted prior to its enactment. People v. Hawker, 14 App. Div. 188; 43 N. Y. S. 516. 1 Woart v. Winnick, 3 N. H. 179; State v. Arlin, 39 N. H. 179; Hartung v. People, 22 N. Y. 95, 105; Shepherd v. People, 25 N. Y. 124; State v. Williams, 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; Turner v. State, 40 Ala. 21. It has thus been held that a law is not ex post facto, which repeals or changes the minimum punishment, if the maximum punishment remains unchanged. People v. Hayes, 140 N. Y. 484; Commonwealth v. Brown, 167 Mass. 144. So, also, an act of Congress, which extended the time for the registration of Chinese laborers, was held not to be ex post facto, because it excepted from its provisions those who had been theretofore convicted of felony. United States v. Chew Cheong, 61 Fed. 200. 2 See State v. Arlin, 39 N. H. 179; State v. Williams, 2 Rich. 418; Strong v. State, 1 Blackf. 193; Herber v. State, 7 Tex. 69. Davies, J., in Ratzky v. People, 29 N. Y. 124. ple, 25 N. Y. 406. "In my opinion," says Denio, See Shepherd v. PeoJ., in Hartung v. Peo Except in regard to the material changes in the rules of evidence which tend to make conviction easier, laws for ple, 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 fine 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. 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, no 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 a different one. We have no means of saying whether one or the other 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 committed before the change in the law.1 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. * * * It is enough, in my opinion, that it changes it (the punishment) 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 cannot be sustained.” 1 Gut v. State, 9 Wall. 35; State v. Learned, 47 Me. 426; State v. 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 v. 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 v. 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 v. O'Flaherty, 7 Nev. 153. In State v. Tatlow (Mo.), 38 S. W. 552, an act relating to the change of venue was held to be applicable to crimes committed prior to the enactment of the law. So, likewise, it is not ex post facto, to apply to existing offenses a law, enacted subsequently, which shortens the time for making challenges. State v. Duestrow, 187 Mo. 44. In State v. Bates (Utah), 47 P. 78, and State v. Covington (Utah), 50 P. 526, a similar conclusion was reached, where, a constitutional provision, reducing the number of jurors in criminal prosecutions to less than twelve, was made to apply to the trial for a crime which had been committed before the constitutional provision took effect. And the Supreme Court of the United States has held that a constitutional amendment, which confers criminal jurisdiction upon a division of the Supreme Court of a State, less in numbers and different in personnel, from the court as it was organized when the crime was committed, does not come within the definition of ex post facto laws (Duncan v. State, 152 The principle involved in the prohibition of ex post facto laws, is also applicable to the rights and privileges of the convict in the penitentiary, wherever the new law tends to increase the hardship of the imprisonment.1 But a law is not ex post facto which mitigates these hardships, or which shortens the term of imprisonment under the so-called "merit" rule. Thus, it was held to be constitutional to provide for the reduction in the length of terms of imprisonment, on account of good behavior, according to a prescribed scale, but providing for less favorable consideration to those who were serving a second term. The fact that one, who had served a term prior to the enactment of the law, was discriminated against, did not make it an ex post facto law. Nor is it a case of ex post facto law when, under the so-called Habitual Criminals Acts, a heavier penalty is imposed for the second or third offense, where the first offense was committed and the penalty therefor inflicted and suffered, before this law was passed.3 § 31. Cruel and unusual punishment in forfeiture of personal liberty and rights of property. — In preceding sections it has been explained how far the constitutional prohibition of cruel and unusual punishments U. S. 377). So, also, it is not ex post facto to apply to a crime, previously committed, a constitutional change in the qualification of the jurors; particularly, where the crime was committed after the adoption of the constitutional provision, and before the legislature had passed laws to carry the constitutional provision into effect. Gibson v. State of Mississippi, 162 U. S. 565; Hopt v. Utah, 110 U. S. 574. 1 Thus, it was held that, where a State statute provided for the reward of good behavior of the convict by an annual reduction of the term of confinement, this privilege became a vested right, which could not be taken away or abridged by subsequent legislation. In re Canfield, 98 Mich. 644. 2 In re Miller, 110 Mich. 676. 3 Blackburn v. State, 50 Ohio St. 428; Commonwealth v. Graves, 155 Mass. 163; Sturtevant v. Commonwealth, 158 Mass. 598. 4 §§ 11, 12a. control the power of the State to inflict capital and corporal punishment. Punishments, which do not restrict or interfere with one's right of personal security, must involve the deprivation or restriction of one's personal liberty or right of property, or of one's civil rights. That any one of these rights may be taken away or restricted, as a punishment for crime, seems never to have been questioned except in one case,1 where the right of suffrage and the right to hold office, were taken away, as a penalty for gambling in violation of the laws of the State. But these were held not to be cruel and unusual punishments in the constitutional sense. In recent decisions this constitutional provision has been invoked in resistance to the imposition of a new penalty for crime; rather, on the ground that the penalty was excessive in degree when the character of the offense was considered, than that it was inherently cruel and unusual. In all such cases, the new statute increased the severity of the punishment, and in all of them the courts held that the new penalties were not excessive or cruel in the constitutional sense. In other cases, this constitutional provision was appealed to as making a statute unconstitutional, which applied ordinary punishments, fines and imprisonment — to actions, which have been made crimes by statute; in one case, the maintenance of a common nuisance,3 and in another, the killing of wild game in violation of the regulations of the game laws. The courts have held that these were not cruel and unusual punishments in the constitutional sense. A statute has, likewise, been held to be lawful, and free from constitutional objection, which provided that the re 1 Harper v. Commonwealth, 93 Ky. 290. 1 State v. Reid, 106 N. C. 714; Ex parte Mitchell, 70 Cal. 1; State v. White, 44 Kan. 514; People v. Morris, 80 Mich. 634. State v. Becker, 3 S. D. 29. State v. De Lano, 80 Wis. 259. |