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Subject Area: Law
Topic: The American Revolution and Constitution

§ 30.: Ex post facto laws.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 1.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

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§ 30.

Ex post facto laws.—

Another constitutional provision, intended to furnish to individual liberty ample protection against the exercise of arbitrary power, prohibits the enactment of ex post facto laws by Congress as well as by the State legislatures.2 The literal meaning of the prohibition is that no law can be passed which will apply to and change the legal character of an act already done. But at a very early day in the history of the constitution, the clause was given a more technical and narrow construction, which has ever since limited the application of the provision. In the leading case,3 Judge Chase explains the meaning of the term ex post facto in the following language: “The prohibition in the letter 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 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 anything but gold and silver 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 laws, 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 the law required at the time of the commission of the offense, 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 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 laws may be proper or necessary, as the case may be. There is a great and apparent difference between making an unlawful act lawful, and the making an innocent action 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 It is not 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,2 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 Except in regard to the material changes in the rules of evidence which tend to make conviction easier, laws for 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

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.2 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

[2]U. S. Const., art. I., §§ 9 and 10.

[3]Calder v. Bull, 3 Dall. 386, 390.

[1]See Fletcher v. Peck, 6 Cranch, 87; Ogden v. Saunders, 12 Wheat. 213; Satterlee v. Matthewson, 2 Pet. 380; Watson v. Mercer, 8 Pet. 88; Charles River Bridge v. Warren Bridge, 11 Pet. 420; Carpenter v. Pennsylvania, 17 How. 456; Hopt v. Utah, 110 U. S. 574; Lock v. Dane, 9 Mass. 360; Woart v. Winnick, 3 N. H. 473; Dash v. Van Kleek, 7 Johns. 477; Moore v. State, 43 N. J. 203; Perry’s Case, 3 Gratt. 632; Evans v. Montgomery, 4 Watts & S. 218; Huber v. Reilly, 53 Pa. St. 115. See In re Jaehne, 35 Fed. 357; People v. O’Neill, 109 N. Y. 251, in which it was held that the Penal Code, N. Y., § 72, was not ex post facto, for the reason that this provision, from the effect given to it by § 2143 of the consolidation act of New York City, impliedly repeals § 58 of the consolidation act, which latter section prescribed a less punishment for the same offense. In Lovett v. State, 33 Fla. 389, a statute changing the degrees of homicide could not be made to apply to offenses already committed when the statute became a law. But a retrospective law will be ex post facto, notwithstanding it does not provide for a criminal prosecution. The exaction of any penalty for the doing of an act, which before the law was altogether lawful, makes the law ex post facto. Falconer v. Campbell, 2 McLean, 195; Wilson v. Ohio, etc., R. R. Co., 64 Ill. 542. A statute has also been held to be ex post facto, which makes it a misdemeanor for one to practice medicine who has been convicted of 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.

[3]Davies, J., in Ratzky v. People, 29 N. Y. 124. See Shepherd v. People, 25 N. Y. 406. “In my opinion,” says Denio, J., in Hartung v. People, 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 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, 137 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 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.