Cyclopædia of Political Science, Political Economy, and the Political History of the United States

Edited by: Lalor, John J.
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New York: Maynard, Merrill, and Co.
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Includes articles by Frédéric Bastiat, Gustave de Molinari, Henry George, J. B. Say, Francis A. Walker, and more.
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EX POST FACTO LAWS. An ex post facto law is one which operates by after-enactment. These words are usually applied to any law, civil or criminal, which is enacted with a retrospective effect, and with the object in view of producing that effect. In its true application, however, as employed in American law, it relates only to crimes, and signifies a law which retroacts by way of criminal punishment upon that which was not a crime before its enactment; or which raises the grade of an offense or renders an act punishable in a more severe manner than it was when the crime was committed; or 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 offense, in order to convict the offender. Such laws are held to be contrary to the fundamental principles of a free government, and the restrictions of the constitution that the legislatures of the several states shall not pass such laws, secures the person of the subject from injury or punishment in consequence of such law. Every law that takes away or impairs vested rights agreeable to existing law, is retrospective and in most cases oppressive. Still there are laws which are just and for the common benefit, relating to a period of time ante-dating their commencement, such as statutes of oblivion and pardon. It is, however, the general rule that no law which mitigates the rigor of the criminal law can be considered an ex post facto law within the prohibition. All laws which are to operate before their making, or to save time from the statute of limitations, or to exempt unlawful acts before their commission, are retrospective. Still such acts may be just and necessary. A broad difference exists between making an unlawful act lawful and an innocent act criminal and inflicting a punishment for it as a crime—The construction of the constitutional provisions prohibiting ex post facto laws as recited in the foregoing comments, has been accepted and adopted by the courts as correct, from an early period in the history of the government. Of the laws which come within the prohibition, it may be said that it is not essential to render them invalid that they should expressly assume the act to which they relate to be criminal or provide for its punishment on that pretext. If a person be subjected to a criminal penalty for the commission of an act, which when committed involved no responsibility, or if it deprived one of any valuable right, such as the pursuit of a lawful business, for the commission of acts which by law were not punishable when committed, the law which so operates will be, in the constitutional sense, ex post facto, although it does not expressly provide that the acts to which the penalty is applied are criminal. To what extent, however, a law may alter the penalty for a criminal offense and apply the alteration to past offenses, is very difficult to determine from the decisions of the courts which have been made concerning it. As the prohibition was enacted for the protection of the accused against arbitrary and unjust legislation, any alteration of the law which tends toward the mitigation of the punishment does not enter within the objection. (Strong vs. State, 1 Blackf., 193; Keen vs. State, 3 Chandler, 109.) The question, however, to determine is, what is to be construed as in mitigation of punishment. Upon this point Cooley on Const Lim, says. "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 best not increased by the change made? In State vs. Arlin, 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. By the same law he was entitled to have counsel assigned him by the government, to process to compel the attendance of witnesses, to a copy of his indictment and a list of jurors who were to try him. Before he was brought to trial the punishment of the offense had been reduced to six months solitary imprisonment, and confinement at hard labor in the state prison for not less than seven nor more than thirty years. Under the terms of the new act, if the courts thought proper they were to assign counsel and furnish him with process to compel the attendance of witnesses in his behalf. The court assigned the respondent counsel, but declined to do more; the respondent insisted that he was entitled to all the privileges which the old law granted before its change. The court held the claim to be unfounded in law. * * * That the position was wholly untenable, the privileges the respondent claimed having been created solely as incidents of the severe punishment to which his offense formerly subjected him, and not as incidents of the offense. That when the punishment was abolished, its incidents fell with it, and that 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." But in commenting on this opinion, Cooley asks if it may not be suggested whether this case "does not overlook the important circumstance that the new law by taking from the accused that absolute right to defense by counsel, and to the other privileges by which the old law surrounded the trial—all of which were designed as securities against unjust conviction—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 offense; 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?"


—In Strong vs. State, the plaintiff in error was indicted and convicted of perjury, which act at the time of its commission was punished by the infliction of not exceeding one hundred stripes. Before the trial the punishment was changed to imprisonment in the penitentiary not exceeding seven years. The court held this amendment "not to be in the nature of ex post facto law, as applied to the case, as it did not punish that which was innocent when done, or add to the punishment of that which was criminal, or increase the malignity of a crime, or retrench the rules of evidence so as to make convictions more easy." (1 Blackf., 193.)


—With respect to the character of punishment inflicted, in the case of Herber vs, State, 7 Texas, 69, the court held that "among all nations of civilized man from the earliest ages the infliction of stripes has been considered more degrading than death itself." On the contrary, in South Carolina, (State vs. Williams, 2 Rich., 418), a case of forgery, the penalty being death, was changed before final judgment to fine, whipping and imprisonment, and the new law was applied to the case by the court in passing sentence. It thus seems impossible to establish a rule by which the legal mind will abide in determining the question as to what truly constitutes mitigation of punishment where the character of the penalty is changed. And this arises from the diversity of opinion as to the severity and dis grace of punishments as a class.


—With respect to the decision of the court in the case of Hartling vs. People, 22 New York, 105, Cooley (329 Const. Lim.) says: "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 hard 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 this act imperative as to offenses before committed. In delivering the opinion the court said '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 be lawfully applied to existing offenses; and so the time 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. The change wrought by the act in the punishment of existing offenses of murder, does not fall within either of these exceptions. If the governor is vested with the discretion to determine whether the criminal 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. 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 his successors during the lifetime of the convict. The sword is indefinitely suspended over his head, ready to fall at any time. * * * 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. * * * The law, moreover, prescribes one year's imprisonment at hard labor in the state prison in addition to the punishment of death. As the convict under the law is exposed to the double infliction, it is, within both the definitions which have been 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.' This decision is now regarded as the settled law of the state of New York, 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." Cooley holds this rule to be sound and sensible, with the single qualification, that the substitution of any other punishment for that of death, must be regarded as a mitigation of the penalty.


—With respect to mere modes of procedure, a criminal has no more right to insist that his offense shall be disposed of under the law in force at the time it is charged to have been committed, than a party in a civil action has the right to demand the application of the same rule in a civil case.


—The constitution of a state confers upon its legislature the control of legal remedies, and the law-making power exercises that prerogative in adopting and changing legal remedies and penalties for the punishment of crime, according to the demands which appear to arise in the wants and necessities of the public. These changes continuously occur, and therefore all legal proceedings would be thrown in wide confusion if each case should imperatively be conducted in accordance with the rules of practice and before those courts which were in existence when its facts arise. By legislative enactments old courts are abolished and new ones spring into existence. Judicial forms vanish; legal remedies dissolve, while others appear in their stead; new rules of evidence and practice are admitted, and older ones are blotted out; and penalties for crimes committed change frequently in the vast domain of the Union. Nevertheless amid all these changes, under the shield and protection of the national and state constitutions the personal rights of the citizens remain secure, and no act can become a law in fact which dispenses with any of the safeguards with which existing law surrounds the person accused of crime.


—Now with regard to ex post facto laws, it may be remarked that there have been statutes sustained giving the government additional challenges, (Warren vs Commonwealth, 37 Penn. St., 45), and others which empowered the amendment of indictments and applied them to past transactions the same as any similar statute intended merely to improve the remedy, and working no injustice to the defendant, and depriving him of no substantial right. Other than these exceptions the decisions are uniform in upholding the principle that an ex post facto law is imperative when relating to a criminal prosecution.


—With respect to the principle that a trial can not be had under the law in force at the time it is charged that the crime was committed, when a change has been subsequently made, the court, in State vs. Williams, 2 Rich., 418, held that the defendant in any case must be proceeded against and punished under the law in force when the proceeding is had. Commonwealth vs. Hall, 97 Mass., 570, held that a law is not unconstitutional which precludes a defendant in a criminal case from taking advantage of variances which do not prejudice him. In the case of Lasure vs. State, 19 Ohio N. S., 43, it was held that a law was not unconstitutional which reduces the prisoner's peremptory challenges. Gut vs. State, 9 Wall., 35, held the act constitutional which though passed after the commission of the offense, authorizes a change of venue to another county of the judicial district. State vs. Leamand, 47 Me., 426, held the act constitutional which merely modifies, simplifies and reduces the essential allegations in criminal indictments, retaining the charge of a distinct offense. Blair vs. Ridgely, 41 Mo., 63, held an act to be constitutional which required an oath of past loyalty of voters.


Ex post facto laws are not objectionable, as such, which take into consideration a criminal's past conduct while framing a punishment for future offenses, and graduate the punishment accordingly. The law very frequently provides heavier punishment for a second or third offense than for a first; and in providing such heavier penalties it has been determined as not unreasonable that the previous conviction to be taken into account may have taken place before the law was passed. In all such cases it is not the first offense that is punished, but the one subsequently committed. The statute itself would be void if the offense to be punished had been committed before it had gone into effect, although it may have been committed after its passage.


—With respect to providing heavier penalties for subsequent offenses, Bishop on Criminal Law says: "The rule, however, which forbids an increase of the penalty after the act is performed, does not render void a statute providing a heavier punishment for the second commission of the offense than for the first, though the first took place before its passage, yes when both had occurred before, the consequence is otherwise."


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