States courts all persons who had taken up arms against the government during the recent rebellion, or who had voluntarily given aid and encouragement to its enemies; and the mode adopted to effect the exclusion was to require of all persons, before they should be admitted to the bar or allowed to practise, an oath negativing any such disloyal action. This decision has not been universally accepted as sound; and the Supreme Courts of West Virginia and of the District of Columbia have since refused to follow it, insisting that permission to practise in the courts is [*264] not a right, but a privilege, and that the withholding * it for any reason of State policy or personal unfitness could not be regarded as the infliction of criminal punishment.1 The Supreme Court of the United States have also, upon the same reasoning, held a clause in the Constitution of Missouri, which, among other things, excluded all priests and clergymen from practising or teaching unless they should first take a similar oath of loyalty, to be void, overruling in so doing a decision of the Supreme Court of that State.2 The same provisions of the national Constitution which we have cited also forbid the passage either by the States or by Congress of any ex post facto law. At an early day it was settled by authoritative decision, in opposition to what might seem the more natural and obvious meaning of the term ex post facto, that in their scope and purpose these 1 See the cases of Ex parte Magruder, American Law Register, Vol. VI. N. s. p. 292; and Ex parte Hunter, ib. 410, 2 W. Va. 122. See also Cohen v. Wright, 22 Cal. 293; Ex parte Yale, 24 Cal. 241. 2 Cummings v. Missouri, 4 Wal. 277. See also the case of State v. Adams, 44 Mo. 570, in which it was held that a legislative act declaring that the board of curators of St. Charles College had forfeited their office, was of the nature of a bill of attainder and void. The Missouri oath of loyalty was a very stringent one, and applied to electors, State, county, city, and town officers, officers in any corporation, public or private, professors and teachers in educational institutions, attorneys and counsellors, bishops, priests, deacons, ministers, elders, or other clergymen of any denomination. The Supreme Court of Missouri had held this provision valid in the following cases: State v. Garesche, 36 Mo. 256, case of an attorney; State v. Cummings, 36 Mo. 263, case of a minister, reversed as above stated; State v. Bernoudy, 36 Mo. 279, case of the recorder of St. Louis; State v. McAdoo, 36 Mo. 452, where it is held that a certificate of election issued to one who failed to take the oath as required by the constitution was void. 3 Constitution of United States, art. 1, §§ 9 and 10. provisions were confined to laws respecting criminal punishments, and had no relation whatever to retrospective legislation of any other description. And it has, therefore, been repeatedly held, that retrospective laws, when not of a criminal nature, do not come in conflict with the national Constitution, unless obnoxious to its provisions on other grounds than their retrospective char acter. * "The prohibition in the letter," says Chase, J., in the leading case," is not to pass any law concerning or after the fact; but the plain and obvious meaning 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 relation to such fact, and punish him for having done it. The prohibition, considered in this light, is an additional bulwark [* 265] 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 any thing but gold and silver coin 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 law, 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 1 Calder v. Bull, 3 Dall. 390. the law required at the time of the commission of the offence, 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 [* 266] 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 acts may be proper and necessary, as the case may be. 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. The expressions ex post facto are technical; they had been in use long before the Revolution, and had acquired an appropriate meaning, by legis lators, lawyers, and authors."1 Assuming this construction of the constitutional provision to be correct, and it has been accepted and followed as correct by the courts ever since, it would seem that little need be said relative See also Fletcher v. Peck, 6 Cranch, 87; Ogden v. Saunders, 12 Wheat. 266; Satterlee v. Mathewson, 2 Pet. 380; Watson v. Mercer, 8 Pet. 110; Charles River Bridge v. Warren Bridge, 11 Pet. 421; Carpenter v. Pennsylvania, 17 How. 463; Cummings v. Missouri, 4 Wal. 277; Ex parte Garland, ib. 333; Baugher v. Nelson, 9 Gill, 299; Woart v. Winnick, 3 N. H. 475; Locke v. Dane, 9 Mass. 363; Dash v. Van Kleek, 7 Johns. 497; Evans v. Montgomery, 4 W. & S. 218; Tucker v. Harris, 13 Geo. 1; Perry's Case, 3 Grat. 632; Municipality No. 1 v. Wheeler, 10 La. An. 745; New Orleans v. Poutz, 14 La. An. 853. * 266 to the first, second, and fourth classes of ex post facto laws, as enumerated in the opinion quoted. It is not essential, however, in order to render a law invalid on these grounds, that it should expressly assume the action to which it relates to be criminal, or provide for its punishment on that ground. If it shall subject an individual to a pecuniary penalty for an act which, when done, involved no responsibility, or if it deprives a party of any valuable right like the right to follow a lawful calling-for acts which were innocent, or at least not punishable by law when committed," the law will be ex post facto in the constitutional sense, notwithstanding it does not in terms declare the acts to which the penalty is attached criminal. But how far a law may change the punishment for a criminal offence, and make the change applicable to past offences, is certainly a question of great difficulty, [*267] which has been increased by the decisions made concerning it. As the constitutional provision is enacted for the protection and security of accused parties against arbitrary and oppressive legislative action, it is evident that any change in the law which goes in mitigation of the punishment is not liable to this objection.1 But what does go in mitigation of the punishment? If the law makes a fine less in amount, or imprisonment shorter in point of duration, or relieves it from some oppressive incident, or if it dispenses with some severable portion of the legal penalty, no embarrassment would be experienced in reaching a conclusion that the law was favorable to the accused, and therefore not ex post facto. But who shall say, when the nature of the punishment is altogether changed, and a fine is substituted for the pillory, or imprisonment for whipping, or imprisonment at hard labor for life for the death penalty, that the punishment is diminished, or at least not increased by the change made? What test of severity docs the law or reason Falconer v. Campbell, 2 McLean, 212. Cummings v. Missouri, 4 Wal. 277; Ex parte Garland, ib. 333. But a divorce is not a punishment, and it may therefore be authorized for causes hap pening previous to the passage of the divorce act. Carson v. Carson, 40 Miss. 349. The repeal of an amnesty law by a Constitutional Convention was held to be ex post facto as to the cases covered by the law in State v. Keith, 63 N. C. 140. 4 Strong v. State, 1 Blackf. 193; Keen v. State, 3 Chand. 109; Boston v. Cummins, 16 Geo. 102; Woart v. Winnick, 3 N. II. 473; State v. Arlin, 39 N. H. 180; Clarke v. State, 23 Miss. 261; Maul v. State, 25 Texas, 166. furnish in these cases? and must the judge decide upon his own view of the pain, loss, ignominy, and collateral consequences usually attending the punishment? or may he take into view the peculiar condition of the accused, and upon that determine whether, in his particular case, the punishment prescribed by the new law is more severe than that under the old or not? In State v. Arlin,1 the respondent was charged with a robbery, which, under the law as it existed at the time it was committed, was subject to be punished by solitary imprisonment not exceeding six months, and confinement for life at hard labor in the State prison. As incident to this severe punishment, he was entitled by the same law to have counsel assigned him by the government, to process to compel the attendance of witnesses, to a copy of his indictment, a list of the jurors who were to try him, &c. Before he was brought to trial, the punishment for the offence was reduced to solitary imprisonment not exceeding six months, and confinement at hard labor in the State prison for not less than seven nor more than thirty years. By the new act, the court, if they thought proper, [* 268] were to assign the respondent counsel, and * furnish him with process to compel the attendance of witnesses in his behalf; and, acting under this discretion, the court assigned the respondent counsel, but declined to do more; while the respondent insisted that he was entitled to all the privileges to which he would have been entitled had the law remained unchanged. The court held this claim to be unfounded in the law. "It is contended," they say, "that, notwithstanding the severity of the respondent's punishment was mitigated by the alteration of the statute, he is entitled to the privileges demanded, as incidents to the offence with which he is charged, at the date of its commission; in other words, it seems to be claimed, that, by committing the alleged offence, the respondent acquired a vested right to have counsel assigned him, to be furnished with process to procure the attendance of witnesses, and to enjoy all the other privileges to which he would have been entitled if tried under laws subjecting him to imprisonment for life upon conviction. This position appears to us wholly untenable. We have no doubt the privileges the respondent claims were designed and created solely as incidents of the severe punishment to which his offence formerly subjected him, and not as incidents of the offence. When the punishment was abolished, its incidents 139 N. H. 179. |