ject, the other restraints enumerated were unnecessary, and therefore improper, for both are retrospective." Judge Iredell also says: "The policy, the reason and humanity of the prohibition does not extend to civil cases, to cases that merely affect the private property of citizens." The courts of New York have held that the term ex post facto law, in this clause of the constitution, applies only to criminal cases. (a) The same doctrine seems to have been recognized in the case of Clark v. Clark.(b) Speaking of a law relating to divorce, the court say: "If the proceedings for a divorce were to be regarded as part of a criminal code, and the divorce itself a punishment, a retrospective law for that purpose would be an ex post facto law, and thus clearly void." In the case of Strong v. The State, (c) it was held, that the term cx post facto law," literally means any law which relates to and operates upon a fact which existed prior to its enactment. This sense of the words is too large and indefinite to be received as the sense in which they were used and understood by the framers of our constitution. That the objection of ex post facto law, applies only to laws respecting crimes, has been repeatedly held in Massachusetts.(d) In one case, Chief Justice Parker speaking of such laws says: "It is contrary to the fundamental principles of a free government, that a law should operate retrospectively, so as to make an act criminal which, at the time when it was done, was innocent; and if the legislature should pass such a law, the court might, perhaps, decide that it was passed by mistake, even if we had no constitution prohibiting the enactment of ex post facto laws. But there is a clause in the 'constitution of the United States which is of paramount

(a) Dash v. Van Kleek, 7 J. R. 477. (c) 1 Blackf. 193.

(8) 10 N. H. 380.

(d) Lock v. Dane, 9 Mass. R. 362.

authority to prevent any state from passing such laws, so that without resorting to fundamental principles, it would be the duty of the court to say that the statute in question, if it is ex post facto, is not law." The general nature of ex post facto laws is to make acts criminal which, at the time when they were done, were innocent, and which had not been made an offence by any previous law. (a)

§ 234. It is unnecessary to multiply authorities upon this point, as we apprehend that the authorities cited fully establish the position that ex post facto laws are to be considered only such as relate to criminal proceedings. Indeed, Mr. Justice Johnson cites no authority in this country directly decisive of a different view of this rule, but seeks mainly to show that the cases relied upon in support of a different rule have not necessarily determined this question, and that the phrase "ex post facto," is not confined in its ordinary signification to criminal law or criminal statutes, admits of positive demonstration. His argument of this question is certainly one of great force, and logical, well worthy perusal and consideration. We are not aware, however, that it has ever been judicially adopted in such a manner as to make it authoritative, so as to change the construction already adverted to. There are numerous cases in the books where the distinction between retrospective and ex post facto laws are clearly recognized. We shall, in this connection, advert to several decisions of courts which have held certain laws of state legislatures not to be ex post facto laws, within the meaning of the constitution prohibiting such laws.

§ 235. It has been held, that the legislature may pass laws altering, modifying, or taking away remedies for the recovery of debts, without incurring a violation of

(a) Ross' Case, 2 Pick. 169.

the provision of the constitution which forbids the passage of ex post facto laws.(a) In Strong v. The State,(b) it was held, that under the statute of Indiana which changed the punishment for perjury from whipping to confinement in the penitentiary, a person guilty of perjury when the former punishment was inflicted might be convicted after the statute took effect, and be punished by the latter punishment; and that the statute making the change in the nature of the punishment was not ex post facto, according to the meaning of the words in the constitution. The court in that case say: "Can a man be sentenced to a punishment different from that which existed at the time the offence was committed? It is insisted he cannot. And why cannot this be done? The legislature has power to enact laws prescribing when and where, and in what manner crimes shall be punished. The legislature has made the statute under consideration. It has said that it shall take effect from a certain time; and that from and after that time, all persons convicted of crimes which, under the then existing laws, would subject them to the punishment of stripes, shall, in lieu of stripes, be confined in the state prison. The business of a judicial tribunal is not to make or alter the law, but to declare what the law is; and we cannot justify ourselves in saying, that the circuit court has committed an error in deciding agreeably to legislative authority, unless it is evident beyond all doubt, that the legislature has transcended its constitutional powers. To the constitution alone we are to look for a limit to legislative authority. The parliament of Great Britain, whence we have derived our first ideas of legislative as well as of judicial authority, has claimed

(a) Evans v. Montgomery, 4 Watts & Serg. 218.

(b) 1 Blackf. 193.

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and in many instances has exercised the power of enacting laws calculated to entrap the subject, and expose him to capital or other punishment for actions which, at the time of their performance, were perfectly innocent, or to inflict greater punishments for acts already criminal, than were by law annexed to such offences at the time they were committed. By the enactment of such statutes, the most faithful subjects of that kingdom have been sacrificed, and in times of internal commotion and political persecution, the blood of innocent victims has been made to smoke on the altar, as an oblation to the malignant passions of men in power. The framers of our constitution knowing these facts, wisely provided a limit to legislative power. In the 18th section of the first article of the constitution it is provided that no "er post facto law shall be made." If the statute under consideration is not prohibited by this clause of our constitution, it is nowhere prohibited in that instrument. Many statutes have a retrospective operation, which cannot be supposed to be included in this constitutional prohibition. Of this description are all acts legalizing past proceedings; all acts of relief, of pardon or indemnity; all acts which mitigate the malignity of an offence, or mollify the rigor of the criminal law, and many others which might be enumerated. These are all retrospective, but are not in the constitutional sense, "ex post facto." It held that the statute was not ex post facto, for the reasons that it did not create a new offence, did not increase the malignity of that which before was an offence, did not change the rules of evidence, so as to render conviction more easy, did not increase the punishment of that which was criminal before its enactment.

§ 236. In the case of Ross, (a) it was held, that if a statute add a new punishment, or increase an old one,

(a) 2 Pick. 169

for an offence committed before its passage, such an act would be ex post facto. That a party ought to know at the time of committing the offence the whole extent of the punishment, for it might sometimes be a matter of calculation, whether he will commit the offence in view of the severity of the punishment. In this case it was held, "The provision in the act of 1817, c. 176, § 5, that where a person has been convicted of a crime punishable by confinement to hard labor, he shall upon conviction of another offence punishable in like manner, be sentenced to a punishment in addition to the one prescribed by law for this last offence, was not ex post facto, when applied to a case in which the second offence was committed, after the passing of the statute. It might be otherwise, however, if applied where the second offence was committed before the statute was passed. The court say, "if this is an additional punishment to an offence committed after the passing of the statute, to be inflicted by the court upon coming to the knowledge of certain facts, the statute is not ex post facto. As if a law was made, that a person under a certain age committing a crime should receive a mild punishment, and that a person over that age, committing a crime, should be punished severely; and further, that if it should be found, after the mild punishment had been awarded, that the culprit was over the age prescribed, the severe punishment should be inflicted, this would not be ex post facto, because the extent of punishment was declared before the offence was committed. The statute might perhaps have been intended to operate on criminals already in prison, and some informations were accordingly filed in cases of that sort. But this objection was made, and two judges, at nisi prius, were of opinion that the statute could not be construed to apply to such cases. On recurring to St. 1804, c. 143, § 3, it will be found to contain a provision similar in effect to the statute in ques