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from practice in the United States courts all persons who had taken up arms against the government during the recent rebel. lion, or who had voluntarily given aid and encouragement to its enemies; and the mode adopted to effect the exclusion was to require of all persons, before they should be admitted to the bar or allowed to practise, an oath negativing any such disloyal action. This decision was not at first universally accepted as sound; and the Supreme Courts of West Virginia and of the District of Columbia declined to follow it, insisting that permission to practise
in the courts is not a right, but a privilege, and that the [* 264) withholding * it for any reason of State policy or personal
unfitness could not be regarded as the infliction of criminal punishment.
The Supreme Court of the United States have also, upon the same reasoning, held a clause in the Constitution of Missouri, which, among other things, excluded all priests and clergymen from practising or teaching unless they should first take a similar oath of loyalty, to be void, overruling in so doing a decision of the Supreme Court of that State.2
law. The act was looked upon as in- VI. N. 8. p. 292; and Ex parte Hunter, flicting a punishment for past conduct; American Law Register, Vol. VI. x. s. the exaction of the oath being the mode 410; 2 W. Va. 122; Ex parte Quarprovided for ascertaining the parties rier, 4 W. Va. 210. See also Cohen upon whom the act was intended to v. Wright, 22 Cal. 293; Er parte operate. See Drehman v. Stifle, 8 Yale, 24 Cal. 241. Wall. 595. The conclusion declared ? Cummings v. Missouri, 4 Wall. by the Supreme Court of the United 277. See also the case of State e. States in Ex parte Garland had been Adams, 44 Mo. 570, in which it was previously reached by Judge Trigg, held that a legislative act declaring of the United States Circuit Court, that the board of curators of St. in Matter of Baxter ; by Judge Bus- Charles College had forfeited their teed, of the District Court of Alabama, office, was of the nature of a bill of in Matter of Shorter et al.; and by attainder and void. The Missouri Judge Erskine, of the District Court oath of loyalty was a very stringent of Georgia, in Ex parte Law. An one, and applied to electors, State, elector cannot be excluded from the county, city, and town officers, officers right to vote on the ground of being in any corporation, public or private, a deserter who has never been tried professors and teachers in educational and convicted as such. Huber v. institutions, attorneys and counsellors, Reily, 53 Penn. St. 112; McCafferty bishops, priests, deacons, ministers, 0. Guyer, 59 Penn. St. 109; State v. elders, or other clergymen of any de Symonds, 57 Me. 148. See ante, p. nomination. The Supreme Court of *01, note.
Missouri had held this provision valid i See the cases of Ex parle Magru- in the following cases: State o. Garder, American Law Register, Vol. esche, 36 Mo. 256, case of an attorney;
Ex post facto laws are also, by the same provisions of the national Constitution already cited,' forbidden to be passed, either by the States or by Congress.
At an early day it was settled by authoritative decision, in opposition to what might seem the more natural and obvious meaning of the term ex post facto, that in their scope and purpose these provisions were confined to laws respecting criminal punishments, and had no relation whatever to retrospective legislation of any other description. And it has, therefore, been repeatedly held, that retrospective laws, when not of a criminal nature, do not come in conflict with the national Constitution, unless obnoxious to its provisions on other grounds than their retrospective character.
“ The prohibition in the letter,” says Chase, J., in the leading case,2 • is not to pass any law concerning or after the fact ; but
2 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 [* 265] 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 any thing but gold and silver coin 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
State v. Cummings, 36 Mo. 263, case their taking an oath that they had of a minister, reversed as above stated; never been engaged in hostile measState v. Bernoudy, 36 Mo. 279, case ures against the government, was of the recorder of St. Louis; State v. sustained. And see State v. Neal, McAdoo, 36 Mo. 452, where it is held 42 Mo. 119. Contra, Kyle v. Jenkins, that a certificate of election issued to 6 W. Va. 371; Lynch v. Hoffman, 7 one who failed to take the oath as W. Va. 553. The case of Peerce v. required by the constitution was void. Carskadon was reversed in 16 Wall. In Beire v. Brown, 4 W. Va. 72, 234, being held covered by the case of and Peerce c. Carskadon, 4 W. Va. Cummings v. Missouri 231, an act excluding persons from 1 Constitution of United States, the privilege of sustaining suits in the art. 1, $$ 9 and 10. courts of the State, or from proceed- 2 Calder v. Bull, 3 Dall. 390. ings for a rehearing, except upon
was to secure the person of the subject from injury or punishment, in consequence of such law. If the prohibition against making ex port facto laws was intended to secure personal rights from being affected or injured by such law, 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 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 er 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 E 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, 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, which has been increased by the [* 267] decisions made concerning it. As the constitutional provision is enacted for the protection and security of accused parties
See also Fletcher v. Peck, 6 Wilson v. Ohio, &c. R. R. Co., 64 Cranch, 87; Ogden v. Saunders, 12 Ill. 542. Wheat. 266; Satterlee o. Mathewson, ? Falconer v. Campbell, 2 McLean, 2 Pet. 380; Watson v. Mercer, 8 Pet. 212; Wilson v. Ohio, &c. R. R. Co., 110; Charles River Bridge v. Warren 64 111 542. Bridge, 11 Pet. 421; Carpenter v. 8 Cummings v. Missouri, 4 Wall. Pennsylvania, 17 How. 463; Cum- 277; Ex parte Garland, 4 Wall. 333. mings v. Missouri, 4 Wall. 277; Er But a divorce is not a punishment, parte Garland, 4 Wall. 333; Baugher and it may therefore be authorized r. Nelson, 9 Gill, 299; Woart v. for causes happening previous to the Winnick, 3 N. H. 475; Locke v.
passage of the divorce act. Carson Dane, 9 Mass. 363; Dash v. Van v. Carson, 40 Miss. 349. Kleek, 7 Johns. 497; Evans v. Mont- 4 The repeal of an amnesty law by gomery, 4 W. & S. 218; Tucker v. a constitutional convention was held Harris
, 13 Geo. 1; Perry's Case, 3 in State v. Keith, 63 N. C. 140, to be Grat. 632; Municipality No. 1 v. ex post facto as to the cases covered Wheeler, 10 La. Ann. 745; New Or- by the law. An act to validate an leans v. Poutz, 14 La. Ann. 853; invalid conviction would be ex post Huber v. Reily, 53 Penn. St. 115; facto. In re Murphy, 1 Woolw. 141.
against arbitrary and oppressive legislative action, it is evident that any change in the law which goes in mitigation of the punishment is not liable to this objection. 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, 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 coun[* 268] sel, and * furnish him with process to compel the attend
ance of witnesses in his behalf; and, acting under this discretion, the court assigned the respondent counsel, but declined
i Strong v. State, 1 Blackf. 193; 261; Maul 0. State, 25 Tex. 166. Keen v. State, 3 Chand. 109; Boston To provide an alternative punishment v. Cummins, 16 Geo. 102; Woart v. of a milder form is not er post facto. Winnick, 3 N. H. 473; State v. Arlin, Turner v. State, 40 Ala. 21. 39 N. H. 180; Clarke o. State, 23 Miss. 3 39 N. H. 179.