Missouri Constitution, nor the act of Congress, can be fairly brought within any received definition or description of bills of attainder. The second of the suppositions made by Mr. Justice Field, and quoted in § 507, is identical in import with the attainder of the Earl of Kildare and his followers. In the one case a class of persons was, and in the other case a class would be, pointed out by description, and declared guilty of crime, and sentenced to suffer the penalty. In both cases. each particular person of the class must be identified; in the one, by showing that he was a follower of the traitorous nobleman, in the other, by showing that he was a clergyman. The third supposition of the learned judge is identical with the attainder of the Earl of Clarendon : the bill of attainder there enacted that the Earl should be forever banished; and if he returned within the realm after the first of February, 1667, he should suffer the penalties of treason; but if he surrendered himself before the said first day of February for trial, the penalties and disabilities declared should be void and of no effect.

§ 511. The attempt to show that the provisions of the Missouri Constitution, and of the act of Congress, are the same in substance as those contained in a conditional attainder like that of Lord Clarendon, is more acute than successful. The difference is not one of form. In the conditional attainder the guilt is formally declared and the punishment affixed, which can only be removed by the performance of some act. In the Missouri Constitution and statute of Congress, there is no guilt declared as resting upon any person. To say that the clauses of the state organic law presume the guilt of all clergymen, and that the act of the national legislature presumes the guilt of all counsellors at law, which presumption can only be removed by an oath of expurgation, is to say that the constitution of Missouri presumes all its voting citizens, and all its state and local officers to be guilty; in other words, that a bill of attainder is launched against all who compose the political community. The learned judge who delivered the opinion of the majority, seems to have confounded the characteristics of bills of attainder with those of ex post facto laws; for many of his remarks seem to apply with greater force to the latter

species of statutes. But the important feature in all this legislation, which relieves it of the odious character of bills of åttainder, is the entire absence of the judicial element. There is no adjudication; no usurpation of the functions of courts; no persons or class of persons, either by name or by description, are, by the mere force and operation of the enactment, convicted of any crime existing or alleged. The provisions of the Missouri Constitution, and of the act of Congress, may be of very doubtful policy; they may be opposed to Republican ideas; they may entirely fail of their design; they may be void as ex post facto laws; but they clearly are not bills of

attainder.

II. Ex post facto Laws.

§ 512. The national and state legislatures are forbidden to pass ex post facto laws. What are such laws? The term used in its literal sense, appears to mean laws after the fact; after the deed or occurrence to which they apply. Is this the meaning of the phrase, or is it limited to a more special and technical signification? All laws which directly or inferentially act upon matters that have already taken place, that is, all retro-active laws, strike us at once as contrary to the ordinary course of legislation, as impolitic, and unjust. So strong is the sentiment of repugnance to such kind of legislation, that there have not been wanting judges and courts who hold such laws absolutely void; who include them within the general category of ex post facto laws; who, even if the last proposition be not admitted, deny that any legislatures in a free and Republican country, have the capacity to enact such statutes, which, it is asserted, contravene the fundamental principles of justice, and are inconsistent with the notion of a civil society based upon the rights of man. As opinions of this sort not unfrequently find utterance from members of the bar and of the bench, I propose to examine with some care the meaning of the phrase ex post facto, and the powers of legislatures to pass retro-active statutes; although the weight of judicial authority is so overwhelming, that the matter is settled beyond ail dispute.

§ 513. I will first state the propositions which are established. Ex post facto is a term of technical import. It does not include all legislation operating upon antecedent facts and circumstances; it does not apply to civil legislation at all; it has only reference to the criminal law. "Ex post facto laws" must, therefore, ex vi termini, be criminal laws. They are such, and only such, as declare an act criminal, and provide for its punishment, which, at the time of its commission, was not a crime; or such as change the punishment of a known crime in any other manner than by mitigating it, and are to operate upon past as well as future offences; or such as alter the rules of evidence or other procedure, so that conviction shall be made easier, and are to apply as well to those who committed the act prior, as to those who committed it subsequently, to the passage of the statute. Although legislative measures which fall within the foregoing description, generally provide for a judicial trial of the person charged with crime, and affect the penalty to be imposed upon him as the result of such trial, or the evidence by which a conviction is obtained, yet this is not necessary; the law would be no less ex post facto, which inflicted the penalty by its own direct operation. All ex post facto laws are, therefore, retro-active; but all retro-active laws are not ex post facto.

§ 514. Congress and the state legislatures do possess the power to adopt and enforce measures relating to civil affairs, which shall have a retro-active effect, unless they are restrained by some other provisions in the national or state constitutions than the one under consideration. There are several such provisions; the one forbidding states to pass laws impairing the obligation of contracts; that prohibiting the taking of private property for public purposes without compensation; that surrounding life, liberty, and property, with the safeguards of due process of law," and the like. But all these, far-reaching as they are, do not cover the entire ground; there are many instances in which the legislatures have passed, and may still pass, statutes retro-active in their effect, and yet not render themselves obnoxious to any restrictions or inhibitions of the organic law either of the United States or of the local

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commonwealths. I should remark in passing, that most of the states have reënacted the prohibition upon ex post facto laws in their own constitutions, while a few have gone farther and prevented their legislatures from passing retro-active statutes of a civil nature.1

§ 515. I shall now examine the course of decision in the Supreme Court of the United States, expository of this restric tive provision; and shall then refer to a few leading cases in the state courts.

The first case is Calder v. Bull2 (1798). The facts were shortly as follows:- A court of probate in Connecticut had, in 1793, rendered a decree refusing to admit a certain will to probate the time for appeal had expired, and the rights of the parties, so far as they could be established according to the course and practice of the courts in that state, were fixed. Thereupon, in 1795, the legislature of Connecticut passed a law setting aside the decree of the probate court, and ordering a new hearing. This having been had, a new decree was made establishing the will, which decree was affirmed by the highest court of the state. The case was then carried to the Supreme Court of the United States, and the action of the lower courts was sought to be reversed, on the sole ground that the state statute was ex post facto, and therefore void. Mr. Justice Chase delivered the leading opinion, from which I quote some passages. After a few observations upon the power of any legislative body in a free country to make laws manifestly contrary to justice, he proceeds: "I shall endeavor. to show what law is to be considered an ex post facto law. The prohibition in the letter is not to pass any law concerning and after the fact; but the plain and obvious meaning and intention of the prohibition is this: that the legislatures shall not pass laws after a fact done by a subject or citizen, which shall have relation to such fact, and shall 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 hav1 See New Orleans v. Clark, 95 U. S. 644. 2 3 Dall. 386.

3 Ibid. 390.

ing a retro-active operation. I do not think it was intended to secure the citizen in his private rights of either property or contract. I will state what laws I consider ex post facto, within the words and intent of the prohibition."

§ 516. “ (1.) Every law that makes an action done before the passage of the law, and which was innocent when done, criminal, and punishes such action :

"(2.) Every law that aggravates a crime, or makes it greater than it was when committed:

"(3.) Every law that changes the punishment, and inflicts a greater punishment than the law annexed to the crime when committed:

"(4.) 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. 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 ex post facto. 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 it is a good general rule that a law should have no retrospect. 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 rule of evidence for the purpose of conviction. 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." Patterson and Iredell, JJ., delivered opinions to the same effect. The statute of the Connecticut legislature was therefore sustained.

§ 517. In the case of Fletcher v. Peck 1 (1810), Chief Justice Marshall had occasion to remark upon the meaning of the phrase. The facts of the case are complicated, and will be referred to in another portion of this section. The Chief Jus1 6 Cranch, 87.