ex post facto law

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. 2nd. Every law that aggravates a crime, or makes it greater than it was, when committed. 3rd. 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.

A statute which would render an act punishable in a manner in which it was not punishable when it was committed. 6 Cranch (U. S.) 188; 1 Kent, Comm. 408. A law made to punish acts committed before the existence of such law, and which had not been declared crimes by preceding laws. Dec. Rights Mass. pt. 1, § 24; Dee. Eights Md. art. 15. "One which, in its operation, makes that criminal or jjenal which was not so at the time the action was performed, or which increases the punishment, or, in short, which, in relation to the offense or its consequences, alters the situation of the party to his disadvantage." 2 Wash. C. C. (U. S.) 366. Laws under the following circumstances are to be considered ex post facto laws, within Const, art. 1, § 10: (1) Every law that makes an act done before the passing 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. (8) Every law that changes the punishment, and inflicts a greater punishment than the law annexed to the crime when committed, though it would be otherwise of a law mitigating the punishment. 3 Story, Const. 212. (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 offense, in order to convict the offender, though it might be otherwise of a law merely modifying the remedy or mode of procedure. 3 DalL (U. S.) 386; 16 Ga. 102. (5) A fifth class has been suggested, to cover some exceptional cases, viz., laws that, in relation to the offense or its consequences, alter the situation of the party to his disadvantage. 7 Am. & Eng. Enc. Law, 528. As, for example, where, after a crime was committed, the law was so changed that' a conviction of a lower degree was no longer a bar, on a new trial being granted, to a conviction of a higher degree. 107 U. S. 22L A law mitigating the punishment of previously committed crimes is not ex post facto, within the meaning of the constitution. 12 Allen (Mass.) 421. Nor is a statute which regulates only mode of procedure. 110 U. S. 574; 137 U. S. 483. There is a distinction between ex post facto laws and retrospective laws. Every ex post facto law must necessarily be retrospective, but every retrospective law is not It is fully settled that the term ex post facto, as used in the constitution, is to be taken in a limited sense as referring to criminal or penal statutes alone, and that the policy, the reason, and the humanity of the prohibition against passing ex post facto laws do not extend to civil cases, to cases that merely affect the private property of citizens. Some of the most necessary acts of legislation are, on the contrary, founded upon the principle that private rights must yield to public exigencies. 8 Wheat. (U. S.) 89; 17 How. (U. S.) 463; 6 Cranch (U. S.) 87; 8 Pet. (U. S.) 88; 11 Pet. (U. S.) 421. See 1 Cranch (U. S.) 109; 9 Cranch (U. S.) 374; 1 Gall. (U. S.) 105; 2 Pet. (U. S.) 380, 523, 627; 3 Story, Const. 212; Serg. Const. Law, 356; 2 Pick. (Mass.) 172; 11 Pick. (Mass.) 28; 9 M^ss. 363; 2 Root (Conn.) 350; 5 T. B. Mon. (Ky.) 133; 1 J. J. Marsh. (Ky.) 563; 3 N. H. 475; 7 Johns. (N. Y.) 488; 6 Bin. (Pa.) 271; 2 Pet. (U. S.) 681. See "Retrospective Law." EX PRAECOGITATA MALICIA (Law Lat.) Of malice aforethought. Reg. Orig. 102. EX PROCEDENTIBUS ET CONSEquentlbus optima fit Interpretatio. The best interpretation is made from things preceding and following, i. e., the context. 1 Rolle, Abr. 375. EX PROPRIO KIOTU (Lat.) Of his own accord. EX PROPRIO VIGORE (Lat.) By its own force. 2 Kent, Coram. 457. EX PROVISIONE HOMINIS (Law Lat.) By the provision of man; by the limitation of the party, as distinguished from the disposition of the law. 11 Coke, 80b. EX PROVISIONE MARITI (Lat.) From the provision of the husband. EX QUASI CONTRACTU (Lat.) From quasi contract. Fleta, lib. 2, c. 60. EX RELATIONE (Lat. at the information of; by the relation). A bill in equity, for example, may in many cases be brought for an injunction to restrain a public nuisance ex relatione (by information of) the parties immediately interested in or affected by the nuisance. 18 Ves. 217; 2 Johns. Ch. (N. Y.) 382; 6 Johns. Ch. (N. Y.) 439; 13 How. (U. S.) 518; 12 Pet. (U. S.) 9L EX RIGORE JURIS (Law Lat.) According to the rigor or strictness of law; in strictness of law. Pleta, lib. 3, c. 10, § 3. 1 EX SCRIPTIS OLIM VISIS (Law Lat. from writings formerly seen). A term used as descriptive of that kind of proof of handwriting where the witness has seen letters or documents professing to be the tion with such party, so as to induce a reasonable presumption that the letters or documents were actually his handwriting. 5 Adol. & E. 703, 730; Best, Pres. 219. EX STATUTO (Law Lat.) According to the statute. Fleta, lib. 5, c. 11, § 1. EX STIPULATU ACTIO (Lat.)

In the civil law. An action of stipulation. An action given to recover marriage portions. Inst. 4. 6. 29. EX TEMPORE (Lat.) From the time; without premeditation. EX TESTAMENTO (Lat.) From, by, or under a will. Inst. 2. 9. 7; Code, 6. 30. 19. EX TOTA MATERIA EMERGAT RESOlutlo. The construction or explanation should arise out of the whole subject matter. Wingate, Max. 238.

A statute which would render an act punishable in a manner in which it was not punishable when it was committed. Fletcher v. Peck, 6 Cra. (U. S.) 138, 3 L. Ed. 162; 1 Kent 408. A law made to punish acts committed before the existence of such law, which had not been declared crimes by preceding laws- Mass. Declar. of Rights, pt. 1, s. 24; Md. Decl. of Rights, art. 15. A law passed after the commission of the offence charged, which inflicts a greater punishment than was annexed to the crime at the time of commission, or which alters the situation of the accused to his disadvantage. In re Wright, 3 Wyo. 478, 27 Pac. 565, 13 L. R. A. 748, 31 Am. St. Rep. 94. A law which, in its operation, makes that criminal which was not so at the time the action was performed; or which increases the punishment, or, in short, which, in relation to the offence or its consequences, alters the situation of a party to his disadvantage. U. S. v. Hall, 2 Wash. C. C. 366, Fed. Cas. No. 15,2S5; see Lindzey v. State, 65 Miss. 542, 5 South. 99, 7 Am. St. Rep. 674; Fletcher v. Peck, 6 Cra. (U. S.) 87, 3 L. Ed. 162; Moore v. State, 43 N. J. L. 203, 39 Am. Rep. 558; Ratzky v. People, 29 N. Y. 124; Thompson v. Utah, 170 U. S. 343, 18 Sup. Ct. 620, 42 L. Ed. 1061; In re Medley, 134 U. S. 160, 10 Sup. Ct. 3S4, 33 L. Ed. 835. Parliament, in virtue of its supreme power, may pass such laws, beiug sustained by discretion alone; 1 Bla. Com. 46, 160. By the constitution of the United States, congress is forbidden to pass ex post facto laws. U. S. Const, art. 1, § 9. And by § 10 of the same instrument, as well as by the constitutions of most, if not all, of the states, a similar restriction is imposed upon the state legislatures. Such an act is void as to those cases in which, if given effect, it would be ex post facto; but so far only. In cases arising after it, it may have effect; for as a rule for the future, it is not ex post facto. There is a distinction between ex post facto laws and retrospective or retroactive laws: every ex post facto law must necessarily be retrospective, but not every retrospective law is an ex post facto law; in general, ex post facto laws only are prohibited. providing for their assessment and collection, are not forbidden by the constitution; the former, in that constitution, has reference to criminal punishment only; Kentucky Union Co. v. Kentucky, 219 U. S. 140, 31 Sup. Ct. 171, 55 L. Ed. 137. Retrospective laws are prohibited by the constitutions of the states of New Hampshire and Ohio. See Rairden v. Holden, 15 Ohio St. 207; John v. Bridgman, 27 Ohio St. 22; Blackburn v. State, 50 Ohio 428, 36 N. E. 18; Kring v. Missouri, 107 U. S. 221, 2 Sup. Ct. 443, 27 L. Ed. 506; White v. Wayne, T. U. P. Charlt. 94. It is fully settled that the term ex post facto, as used in the constitution, is to be taken in a limited sense as referring to criminal or penal statutes alone, and that the policy, the reason, and the humanity of the prohibition against passing ex post facto laws do not extend to civil cases, to cases that merely affect the private property of citizens. But the prohibition cannot be evaded by giving a civil form to what is, in substance, criminal; Cummings v. Missouri, 4 Wall. (U. S.) 277, 18 L. Ed. 356; In re Garland, 4 Wall. (U. S.) 333, 18 L. Ed. 366; Burgess v. Salmon, 97 U. S. 385, 24 L. Ed. 1104; Green v. Shumway, 39 N. Y. 41S; Hare, Am. Const. L. 547. Divorce not being a punishment may be authorized for causes happening previous to the passage of the divorce act; Carson v. Carson, 40 Miss. 349. The constitution does not prohibit the states from passing retrospective laws generally. Some of the most necessary acts of legislation are, on the contrary, founded upon the principles that private rights must yield to public exigencies; Carpenter v. Pennsylvania, 17 How. (U. S.) 463, 15 L. Ed. 127; Watson v. Mercer, 8 Pet. (U. S.) 88, 8 L. Ed. 876; Charles River Bridge v. Warren Bridge, 11 Pet. (U. S.) 421, 9 L. Ed. 773; Satterlee v. Matthewson, 2 Pet. (U. S.) 3S0, 7 L. Ed. 458; Bank of Hamilton v. Dudley, 2 Pet. (U. S.) 523, 7 L. Ed. 490; Dash v. Van Kleeck, 7 Johns. (N. Y.) 4S8, 5 Am. Dec. 291; Com. v. Lewis, 6 Binn, (Pa.) 271; Wellshear v. Kelley, 69 Mo. 343; United States Mortg. Co. v. Gross, 93 111. 483; Cooley, Const. Lim. 265; Callahan v. Callahan, 36 S. C. 454, 15 S. E. 727. See Drake v. Jordan, 73 la. 707, 36 N. W. 653; Campbell v. Manderscheid, 74 la. 70S, 39 N. W. 92. Test oaths of past loyalty to the government have been held void as ex post facto; In re Garland, 4 Wall. (U. S.) 333,, 18 L. Ed. 366; except as pre-requisites to the exercise of the elective franchise; Green v. Shumway, 39 N. Y. 418. A law prohibiting the sale of intoxicating liquors is not ex post facto, State v. Paul, 5 R. I. 1S5; or a law imposing a retrospective tax; Bonny v. Reed, 31 N. J. L. 133; Stockdale v. Ins. Co., 20 Wall. (U. S.) 323, 22 L. Ed. 348; see, Car- County, GG N. C. 3G1; or a law providing for the infliction of the death penalty by means of electricity which did not apply to crimes committed before it took effect; People v. Nolan, 115 N. Y. 6G0, 21 N. E. 10G0; or a law authorizing a divorce for past offences; Carson v. Carson, 40 Miss. 349; Clark v. Clark, 10 N. H. 380, 34 Am. Dec. 105; compare Dickinson v. Dickenson, 7 N. C. ■>-~, 9 Am. Dec. 60S; or a law providing that the punishment of future crimes shall be increased by reason of past offences; State v. Woods, 68 Me. 409. Statutes providing for the revocation of licenses of physicians of had moral character by state boards have been questioned as being ex post facto, hut the ease of People v. Hawker, 152 N. Y. 23 1, 4G N. E. GOT, affirmed Hawker v. New York, 170 U. S. 1S9, 18 Sup. Ct. 573, 42 L. Ed. 1002, is said to have settled that they are not; People v. Reetz, 127 Mich. 87, 86 N. W. 30G, affirmed Reetz v. Michigan, 1SS U. S. 505, 23 Sup. Ct. 300, 47 L. Ed. 5G3; Meffert v. Board of Medical Registration, 66 Kan. 710, 72 Pac. 247, 1 L. R. A. (N. S.) 811, affirmed Meffert v. Packer, 195

A law which operates by after-enactments.''' A law which makes an act done before its passage, and which was innocent when done, criminal. 3 Dallas' B, 386. A law which renders an act pimishable in a manner in which it was not punishable when committed. 6 Cranc Ks B. 87. Marshall C. J., i Jind. Federalist, No. 84. 1 Kenfs Com. 409. The making of laws ex post facto is when, after an action, (indifferent in itself ) is committed, the legislator then, for the first time, declares it to have been a crime, and inflicts a punishment upon the person who has committed it. 1 BL Com, 46. 1 Steph, Com. 27. The use of the term ex post facto in the Constitution of the United States, (Art. I. Sect. IX. X.,) has occasioned considerable discussion as to its exact meaning; which, however, has resulted m establishing the definitions above riven. An ex post facto law is a species of retrospective law, which is confined in its operation to the creation or the punishment of a crime; and the term is not properly applicable to any other kind of retrospective enactment. Chase, J., 3 Dallas' B. 386. 1 Kent's Com. 409. Instead of using the term ex post facto, the constitutions of some of the states, in prohibiting such laws, describe them as " laws made to punish for acti6n8 done before the existence of such laws;" {Constitution of Massachusetts, part 1, sect. 24;) "retrospective laws." Const, of N. Hampshire, part 1, art. 23. Others employ both the phrase itself, and its explanation. Constit. of Florida, art. 1, sect. 18. The inaccuracy of most of the literal translations of the phrase ex post facto has been already noticed under that head. See supra. It appears, however, most strikingly in the attempts made to give a strict and literal explanation of the phrase ex post facto law. Thus, it is said, that an ex post facto law means a law *' passed concerning and after a fact or thing done, or action committed"; a law passed "after a fact done by a subject or citizen, which shall have relation to such fact, and shall punish him for having done it." Chase, J., 3 Dallas' B. 386. The error of this kind of translation, and the cause of it have been already explained. See Fx post facto. The true meaning of the phrase is made very apparent by writing post facto {or postfacto) as one word, and thus giving to ex its full and proper sense of from or by. In this way it becomes susceptible not only of a literal, but of a grammatical translation; " an ex postfacto law " signifying " a law operating by after-enactment"; that la, upon previous acts. The following passage from Aulus Gellius, while it clearly justifies the use of postfacto as one word, furnishes in other respects a very apposite illustration. The old Atinian law had this provision: Quod subreptum erit, ejus rei atema auctoritas esto; whatever thing shall be privily stolen, let the ownership of that thing be perpetual; that is, the property of the owner shall never be devested out of him by the theft. Gel Uus records that a question arose upon the word erit, as to the operation of this law, and that Scd Bvola, Brutus and Manilius, men of the first learning, were in doubt ntrumne in post-facta modo furta lex valeret, an etiam in ante facta; (whether the law took effect only on thefts committed after it, or on those committed before, also.) I^ocL Att. lib. xvii. c. 7. In other words, the question was, whether this was an ex post-facto law or not. The phrase "in ante-facta" (upon acts or actions done before,) in this passage, expresses the peculiar operation of such a law more distinctly perhaps than ex post factoilself, and is almost literally translated in the best modem definitions. See supra. The words ante facta and postfacto as contrasted in the same passage both obviously refer exclusively to the acts of individuals; but in the phrase ex post-facto, the post factum (after-act or post-act) is the act of the legislature itself in passing the law; the ante-factum being the act of the individual upon which the law is made to operate retrospectively. This distmction is noticed by Mr. Justice Chase, in the case already referred to. 3 Dallas' B. 386.