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 existing offences of murder, does not fall within either of these exceptions. If 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 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 Under one of the repealed sections of the Revised Statutes, it was required that a period should intervene between the sentence and execution of not less than four, nor more than eight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 of the sentence 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 even 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 offence, 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 cannot 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. True, the concluding part of the punishment [* 272] cannot be executed unless the governor concurs by ordering the execution. But as both parts may, in any given case, be inflicted, and as the convict is consequently, under this law, exposed to the double infliction, it is, within both the definitions which have been mentioned, an ex post facto law. It changes the punishment, and inflicts a greater punishment than that which the law annexed to the crime when committed. It is enough, in my opinion, that it changes it 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." This decision has since been several times followed in the State of New York,1 and it must now be regarded as the settled law of that State, that a law changing the punishment for offences 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."2 And this rule seems to us a sound and sensible one, with perhaps this single qualification, that the substitution of any other punishment for that of death must be regarded as a mitigation of the penalty.3 66 But so far as mere modes of procedure are concerned, a party has no more right, in a criminal than in a civil action, to insist that his case shall be disposed of under the law in force when the act to be investigated is charged to have taken place. Remedies must always be under the control of the legislature, and it would create endless confusion in legal proceedings if every case was to be conducted only in accordance with the rules of practice, and heard only by the courts, in existence when its facts arose. The legislature may abolish courts and create new ones, and it may prescribe altogether different modes of procedure in its discretion, though it cannot lawfully, we think, in so doing, dispense with any of those substantial protections with which the existing law surrounds the person accused of crime. Statutes 1 Shepherd v. People, 25 N. Y. 406; Ratzky v. People, 29 N. Y. 124; Kuckler v. People, 5 Park. Cr. Rep. 212. 2 Per Davies, J., in Ratzky v. People, 29 N. Y. 124. See Miles v. 3 See 1 Bishop, Crim. Law, § 219 (108). * giving the government additional challenges,1 and others [*273] which authorized the amendment of indictments,2 have been sustained and applied to past transactions, as doubtless would be any similar statute, calculated merely to improve the remedy, and in its operation working no injustice to the defendant, and depriving him of no substantial right. And a law is not objectionable as ex post facto which, in providing for the punishment of future offences, authorizes the offender's conduct in the past to be taken into the account, and the punishment to be graduated accordingly. Heavier penalties are often provided by law for a second or any subsequent offence than for the first; and it has not been deemed objectionable that, in providing for such heavier penalties, the prior conviction authorized to be taken into the account may have taken place before the law was passed. In such case, it is the second or 1 Walston v. Commonwealth, 16 B. Monr. 15; Jones v. State, 1 Kelly, 610; Warren v. Commonwealth, 37 Penn. St. 45; Walter v. People, 32 N. Y. 147; State v. Ryan, 13 Minn. 370; State v. Wilson, 48 N. H 398; Commonwealth v. Dorsey, 103 Mass. 412. 2 State v. Manning, 14 Tex. 402; Lasure v. State, 19 Ohio, N. s. 43. See State v. Corson, 59 Me. 137. The defendant in any case must be proceeded against and punished under the law in force when the proceeding is had. State v. Williams, 2 Rich. 418; Keene v. State, 2 Chand. 109; People v. Phelps, 5 Wend. 9; Rand v. Commonwealth, 9 Grat. 738. A law is not unconstitutional which precludes a defendant in a criminal case from taking advantage of variances which do not prejudice him. Commonwealth v. Hall, 97 Mass. 570; Lasure v. State, 19 Ohio, N. s. 43. Nor one which reduces the number of the prisoner's peremptory challenge. Dowling v. State, 5 S. & M. 664. Nor one which, though passed after the commission of the offence, authorizes a change of venue to another county of the judicial dis trict. Gut v. State, 9 Wall. 35. Nor 8 Rand v. Commonwealth, 9 Grat. 738; Ross's Case, 2 Pick. 165; People v. Butler, 3 Cow. 347; Ex parte Guiterrez, 45 Cal. 429. Extradition treaties may provide for the surrender of persons charged with offences previously committed. In re Giacomo, 12 Blatch. 391. subsequent offence that is punished, not the first; and the statute would be void if the offence to be actually punished under it had been committed before it had taken effect, even though it was after its passage.2 Laws impairing the Obligation of Contracts. The Constitution of the United States also forbids the States passing any law impairing the obligation of contracts.3 It is remarkable that this very important clause was passed over almost without comment during the discussions preceding the adoption of that instrument, though since its adoption no clause which the Constitution contains has been more prolific of litigation, or given rise to more animated and at times angry controversy. It is but twice alluded to in the papers of the Federalist; 4 and though its great importance is assumed, it is evident that the writer had no conception of the prominence it was afterwards to hold in constitutional discussions, or of the very numerous cases to which it was to be applied in practice. The first question that arises under this provision is, What is a contract in the sense in which the word is [* 274] here employed? In the leading case upon this subject, it appeared that the legislature of Georgia had made a grant of land, but afterwards, on an allegation that the grant had been obtained by fraud, a subsequent legislature had passed another act annulling and rescinding the first conveyance, and asserting the right of the State to the land it covered. "A contract," says Ch. J. Marshall," is a compact between two or more parties, and is either executory or executed. An executory contract is one in which a party binds himself to do or not to do a particular thing. Such was the law under which the conveyance was made by the governor. A contract executed is one in which the object of the contract is performed; and this, says Blackstone, differs in nothing from a grant. The contract between Georgia and the purchasers was executed by the grant. A contract executed, as well as one which is executory, contains obligations binding on 1 Rand v. Commonwealth, 9 Grat. 738. 2 Riley's Case, 2 Pick. 172. 3 Const. art. 1, § 10. the parties. A grant, in its own nature, amounts to an extinguishment of the right of the grantor, and implies a contract not to reassert that right. A party is, therefore, always estopped by his own grant. Since then, in fact, a grant is a contract executed, the obligation of which still continues, and since the Constitution uses the general term 'contract,' without distinguishing between those which are executory and those which are executed, it must be construed to comprehend the latter as well as the former. A law annulling conveyances between individuals, and declaring that the grantors should stand seized of their former estates, notwithstanding those grants, would be as repugnant to the Constitution as a law discharging the vendors of property from the obligation of executing their contracts by conveyances. It would be strange if a contract to convey was secured by the Constitution, while an absolute conveyance remained unprotected. If, under a fair construction of the Constitution, grants are comprehended under the term contracts,' is a grant from the State excluded from the operation of the provision? Is the clause to be considered as inhibiting the State from impairing the obligation of contracts between two individuals, but as excluding from that inhibition contracts made with itself? The words themselves contain no such distinction. They are general, and are applicable to contracts of every description. If contracts made with the State are to be exempted from their operations, the excep[*275] tion_must arise from the character of * the_contracting party, not from the words which are employed." And the court proceed to give reasons for their decision, that violence should not "be done to the natural meaning of words, for the purpose of leaving to the legislature the power of seizing, for public use, the estate of an individual, in the form of a law annulling the title by which he holds that estate." 1 It will be seen that this leading decision settles two important points: first, that an executed contract is within the provision, and second, that it protects from violation the contracts of States equally with those entered into between private individuals.3 1 Fletcher v. Peck, 6 Cranch, 133. 2 This decision has been repeatedly followed. In the founding of the Colony of Virginia, the religious establishment of England was adopted, and before the Revolution the churches of that denomination had become vested, by grants of the Crown or Colony, with large properties, which continued in their possession after the constitution of the State had forbidden the creation or continuance of any |
