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trate * the difficulty of laying down any rule which will [* 270] be readily and universally accepted as to what is a mitigation of punishment, where its character is changed, and when from the very nature of the case there can be no common standard, by which all minds, however educated, can measure the relative severity and ignominy.

In Hartung v. People, the law providing for the infliction of capital punishment had been so changed as to require the party liable to this penalty to be sentenced to confinement at liard labor in the State prison until the punishment of death should be inflicted; and it further provided that such punishment should not be inflicted under one year, nor until the governor should issue his warrant for the purpose. The act was evidently designed for the benefit of parties convicted, and, among other things, to enable advantage to be taken, for their benefit, of any circumstances subsequently coming to light which might show the injustice of the judgment, or throw any more favorable light on the action of the accused. Nevertheless, the court held the act inoperative as to offences before committed. “In my opinion,” says Denio, J., “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 offences; and so, in my opinion, the term of imprisonment might be reduced, or the number of stripes diminished, in cases punishable in that manner. Any thing 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 offences; 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 [* 271] 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 existing offences of murder, does not fall within either of these exceptions. If 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 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 execution of not less than four, nor 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 of the sentence 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 even 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 offence, by substituting for the prescribed penalty a different one. We have no means of saying whether one or the other would be the most severe in a given case. That would depend upon the disposition and temperament of the convict. The legislature cannot 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. True,

1 22 N. Y. 105.

the concluding part of the punishment cannot be executed [* 272] * unless the governor concurs by ordering the execution.

But as both parts may, in any given case, be inflicted, and as the convict is consequently, under this law, exposed to the double infliction, it is, within both the definitions which have been

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mentioned, an ex post facto law. It changes the punishment, and inflicts a greater punishment than that which the law annexed to the crime when committed. It is enough, in my opinion, that it changes it 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.” This decision has since been several times followed in the State of New York, and it must now be regarded as the settled law of that State, that “ a law changing the punishment for offences 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.”2 And this rule seems to us a sound and sensible one, with perhaps this single qualification, — that the substitution of any other punishment for that of death must be regarded as a mitigation of the penalty.

But so far as mere modes of procedure are concerned, a party has no more right, in a criminal than in a civil action, to insist that his case shall be disposed of under the law in force when the act to be investigated is charged to have taken place. Remedies must always be under the control of the legislature, and it would create endless confusion in legal proceedings if every case was to be conducted only in accordance with the rules of practice, and heard only by the courts, in existence when its facts arose. The legislature may abolish courts and create new ones, and it may prescribe altogether different modes of procedure in its discretion, though it cannot lawfully, we think, in so doing, dispense with any of those substantial protections with which the existing law surrounds the person accused of crime. A law giving the government additional challenges, and another which authorized * the amendment of indictments, have both been suis- [* 273]

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Shepherd v. People, 25 N. Y. 406; Ratzky v. People, 29 N. Y. 124; Kuckler v. People, 5 Park. Cr. Rep. 212.

? Per Davies, J., in Ratzky v. People, 29 N. Y. 124. • See 1 Bishop, Crim. Law, $ 219 (108).

• Walston v. Commonwealth, 16 B. Monr. 15; State v. Ryan, 13 Minn. 370; State v. Wilson, 48 N. H. 398; Commonwealth v. Dorsey, 103 Mass. 412.

• State v. Manning, 14 Texas, 402; Lasure v. State, 19 Ohio, N. s. 43. See State v. Corson, 59 Me. 137. The defendant in any case must be proceeded tained as applicable to past transactions, as any similar law, tending only to improve the remedy, but working no injustice to the defendant, and depriving him of no substantial right, doubtless would be.

And a law is not objectionable as ex post facto which, in providing for the punishment of future offences, authorizes the offender's conduct in the past to be taken into the account, and the punishment to be graduated accordingly. Heavier penalties are often provided by law for a second or any subsequent offence than for the first; and it has not been deemed objectionable that, in providing for such heavier penalties, the prior conviction authorized to be taken into the account may have taken place before the law was passed. In such case, it is the second or subsequent offence that is punished, not the first; 2 and the act would be void if the offence to be actually punished had been committed before it had taken effect, even though it was after its passage.3

Laws impairing the Obligation of Contracts.

The Constitution of the United States also forbids the States passing any law impairing the obligation of contracts. It is remarkable that this very important clause was passed over

against and punished under the law in force when the proceeding is bad. State v. Williams, 2 Rich. 418; Keene v. State, 2 Chand. 109; People v. Phelps, 5 Wend. 9; Rand v. Commonwealth, 9 Grat. 738. A law is not unconstitutional which precludes a defendant in a criminal case from taking advantage of variances which do not prejudice him. Commonwealth v. Hall, 97 Mass. 570. Nor one which, though passed after the commission of the offence, authorizes a change of venue to another county of the judicial district. Gut v. State, 9 Wal. 35. Nor one which gives the government a right to additional challenges. Walston v. Commonwealth, 16 B. Monr. 15; State o. Ryan, 13 Minn. 370; State v. Wilson, 48 N. H. 398; Commonwealth v. Dorsey, 103 Mass. 412. Nor one, it seems, which requires an oath o past loyalty of voters. Blain v. Ridgeley, 41 Mo. 63; State v. Neal, 42 Mo. 119: Contra, Green v. Shumway, 39 N. Y. 418. And see cases cited, ante, 64, note 3. But a statute providing that the rule of law precluding a conviction on the uncorroborated testimony of an accomplice should not apply to cases of misdemeanor, it was held could not have retrospective operation. Hart v. State, 40 Ala. 32.

· Rand v. Commonwealth, 9 Grat. 738; Ross's Case, 2 Pick. 165; People v. Butler, 3 Cow. 347.

? Rand v. Commonwealth, 9 Grat. 738.
* Riley's Case, 2 Pick. 172.
4 Const, art 1, § 10.

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almost without comment during the discussions preceding the adoption of that instrument, though since its adoption no clause which the Constitution contains has been more prolific of litigation, or given rise to more animated and at times angry controversy. It is but twice alluded to in the papers of the Federalist; and though its great importance is assumed, it is evident that the writer had no conception of the prominence it was afterwards to hold in constitutional discussions, or of the very numerous cases to which it was to be applied in practice.

The first question that arises under this provision is, What is a * contract in the sense in which the word is [* 274] here employed ? In the leading case upon this subject, it appeared that the legislature of Georgia had made a grant of land, but afterwards, on an allegation that the grant had been obtained by fraud, a subsequent legislature had passed another act annulling and rescinding the first conveyance, and asserting the right of the State to the land it covered. “A contract," says Ch. J. Marshall, “ is a compact between two or more parties, and is either executory or executed. An executory contract is one in which a party binds himself to do or not to do a particular thing. Such was the law under which the conveyance was made by the governor. A contract executed is one in which the object of the contract is performed ; and this, says Blackstone, differs in nothing from a grant. The contract between Georgia and the purchasers was executed by the grant. A contract executed, as well as one which is executory, contains obligations binding on the parties. A grant, in its own nature, amounts to an extinguishment of the right of the grantor, and implies a contract not to reassert that right. A party is, therefore, always estopped by his own grant. Since then, in fact, a grant is a contract executed, the obligation of which still continues, and since the Constitution uses the general term contract,' without distinguishing between those which are executory and those which are executed, it must be construed to comprehend the latter as well as the former. A law annulling conveyances between individuals, and declaring that the grantors should stand seized of their former estates, notwithstanding those grants, would be as repugnant to the Constitution as a law discharging the vendors of property from

1 Federalist, Nos. 7 and 44.

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