ciently 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 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 legislators, 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 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,3 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

1 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. 42f; 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. Huber v. Reily, 53 Penn. St. 115. 2 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 happening 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. An act to validate an invalid conviction would be ex post facto. In re Murphy, 1 Woolw. 141.

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 does the law or reason 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,2 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, were to assign the respondent counsel, and [*268] * 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

1 Strong v. State, 1 Blackf. 193; Keen v. State, 3 Chand. 109; Boston v. Cummins, 16 Geo. 102; Woart v. Winnick, 3 N. H. 473; State v. Arlin, 39 N. H. 180; Clarke v. State, 23 Miss. 261; Maul v. State, 25 Texas, 166.

239 N. H. 179.

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 fell with it; and he might as well claim the right to be punished under the former law as to be entitled to the privileges connected with a trial under it." 1

In Strong v. State,2 the plaintiff in error was indicted and convicted of perjury, which, under the law as it [* 269] existed at the time it was committed, was punishable by not exceeding one hundred stripes. Before the trial, this punishment was changed to imprisonment in the penitentiary not exceeding seven years. The court held this amendatory law not to be ex

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1 With great deference it may be suggested whether this case does not overlook the important circumstance, that the new law, by taking from the accused that absolute right to defence by counsel, and to the other privileges by which the old law surrounded the trial, all of which were designed as securities against unjust convictions, was directly calculated to increase the party's peril, and was in consequence brought within the reason of the rule which holds a law ex post facto which changes the rules of evidence after the fact, so as to make a less amount or degree sufficient. Could a law be void as ex post facto which made a party liable to conviction for perjury in a previous oath on the testimony of a single witness, and another law unobjectionable on this score which deprived a party, when put on trial for a previous act, of all the usual opportunities of exhibiting the facts and establishing his innocence? Undoubtedly, if the party accused was always guilty, and certain to be convicted, the new law must be regarded as mitigating the offence; but, assuming every man to be innocent until he is proved to be guilty, could such a law be looked upon as "mollifying the rigor" of the prior law, or as favorable to the accused, when its mollifying circumstance is more than counterbalanced by others of a contrary character?

2 1 Blackf. 193.

post facto, as applied to the case. "The words ex post facto have a definite, technical signification. The plain and obvious meaning of this prohibition is, that the legislature shall not pass any law, after a fact done by any citizen, which shall have relation to that fact, so as to punish that which was innocent when done, or to add to the punishment of that which was criminal, or to increase the malignity of a crime, or to retrench the rules of evidence so as to make conviction more easy." "Apply this definition to the act under consideration. Does this statute make a new offence? It does not. Does it increase the malignity of that which was an offence before? It does not. Does it so change the rules of evidence as to make conviction more easy? This cannot be alleged. Does it then increase the punishment of that which was criminal before its enactment? We think not." 1

So in Texas it has been held that the infliction of stripes, from the peculiarly degrading character of the punishment, was worse than the death penalty. "Among all nations of civilized man, from the earliest ages, the infliction of stripes has been considered more degrading than death itself."2 While, on the other hand, in South Carolina, where, at the time of the commission of a forgery, the punishment was death, but it was changed before final judgment to fine, whipping, and imprisonment, the new law was applied to the case in passing the sentence. These cases illus

1 Mr. Bishop says of this decision: "But certainly the court went far in this case." 1 Bishop, Crim. Law, § 219 (108).

Herber v. State, 7 Texas, 69.

8 State v. Williams, 2 Rich. 418. In Clark v. State, 23 Miss. 261, defendant was convicted of a mayhem. Between the commission of the act and his convietion, a statute had been passed, changing the punishment for this offence from the pillory and a fine to imprisonment in the penitentiary, but providing further, that "no offence committed, and no penalty and forfeiture incurred previous to the time when this act shall take effect shall be affected by this act, except that when any punishment, forfeiture, or penalty should have been mitigated by it, its provisions should be applied to the judgment to be pronounced for offences committed before its adoption." In regard to this statute the court say: "We think that in every case of offence committed before the adoption of the penitentiary code, the prisoner has the option of selecting the punishment prescribed in that code in lieu of that to which he was liable before its enactment." But inasmuch as the record did not show that the defendant claimed a commutation of his punishment, the court confirmed a sentence imposed according to the terms of the old law. On this subject, see further the cases of Holt v. State, 2 Texas, 363; Dawson v. State, 6 Texas, 347.