"of civil conduct."

municipal law from the natural or revealed; the former of which is the rule of moral conduct, and the latter not only the rule of moral conduct, but also the rule of faith. These regard man as a creature, and point out his duty to God, to himself, and to his neighbour, considered in the light of an individual. But municipal or civil law regards him also as a citizen, and bound to other duties towards his neighbour than those of mere nature and religion: duties, which he has engaged in by enjoying the benefits of the common union; and which amount to no more, than that he do contribute, on his part, to the subsistence and peace of the society.

It is likewise a rule "prescribed." Because a bare resolution, confined in the breast of the legislator, without manifesting itself by some external sign, can never be properly a law. It is requisite that this resolution "prescribed." be notified to the people who are to obey it. But the manner in which this notification is to be made, is matter of very great indifference. It may be notified by universal tradition and long practice, as is the customary law of England. It may be notified, vivá voce, by officers appointed for that purpose, as is done with regard to proclamations, and such acts of parliament as are appointed to be publicly read in churches and other assemblies (7). It may be notified by printing, or the like; which is the general course taken with our acts of parliament. Yet, whatever method is made use of, it is incumbent on the *promulgators of a law to notify it in the most public [*40] and perspicuous manner; not like Caligula, who (according to Dio Cassius) wrote his laws in a very small character, and hung them up upou high pillars, the more effectually to ensnare the people. There is still a more unreasonable method than this, which is called making of laws ex post facto; when, after an action (indifferent in itself) is committed, the legislature then for the first time declares it to have been a crime, and inflicts a punishment upon the person who has committed it. (8)

(Thus the Confirmatio Cartarum (25 Ed. 1) enacted (cap. 3) that the Great Charter of Henry III., and the Charter of the Forest, should be read in the cathedral churches throughout the realm, before the people, twice in every year. A few years after wards (34 Ed. 1) still more careful provision was made for the promulgation of the statute, de tallagio non concedendo; by cap. 6 of which it was provided that "all archbishops

and bishops for ever shall read this present charter in the cathedral churches twice in the year and upon the reading thereof shall openly denounce accursed all that willingly do, or procure to be done, anything contrary to the tenor, force, and effect thereof, in any point or article whatever." Other similar instances will occur to the reader of our statute-book.

(8) The constitution of the United States prohibits Congress from passing ex post facto laws (Const. art. 1, sec. 9); and it also prohibits every state from passing such laws. (Const. art. 1, sec. 10.)

* *

The term ex post facto is construed to relate exclusively to criminal matters or offenses. "A law that punishes a citizen for an innocent action, or in other words, for an act which when done, was in violation of no existing law; a law that destroys, or impairs, the lawful private contracts of citizens; a law that makes a man a judge in his own cause; or a law that takes property from A and gives it to B. * The legislature may enjoin, permit, forbid, and punish; they may declare new crimes, and establish rules of conduct for all its citizens in future cases; they may commend what is right, and prohibit what is wrong; but they cannot change innocence into guilt, or punish innocence as a crime; or violate the right of an antecedent lawful private contract, or the right of private property." Calder v. Bull, 3 Dallas, 388.

An ex post facto law is thus defined: "1. Every law that makes an action 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 com

Here it is impossible that the party could foresee that an action, innocent when it was done, should be afterwards converted to guilt by a subsequent law; he had therefore no cause to abstain from it; and all punishment for not

mitted. 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 offense, in order to convict the offender." Ib. 390.

An act of Congress is unconstitutional if it requires an applicant for admission to practice in the Federal courts, to swear as a condition precedent to such admission that he has never voluntarily borne arms against the United States since he has been a citizen thereof; that he has voluntarily given no aid, counsel, or encouragement to persons engaged in armed hostility thereto; that he has neither sought nor accepted, nor attempted to exercise the functions of any office whatever, under any authority or pretended authority in hostility to the United States. Garland, Ex parte, 4 Wall. (U. S.) 333, 376, 377; Green v. Shumway, 39 N. Y. (12 Tiff.) 418; 36 How. Pr. 5; 7 Trans. App. 282. Such an act imposes a punish ment for some of the acts which were not punishable at the time they were committed, and for other acts it adds a new punishment to that before prescribed, and it is, therefore, within the inhibition of the constitution against the passage of an ex post facto law. Ib. Exclusion from the practice of the law in the Federal courts, or from any of the ordinary avocations of life for past conduct, is punishment for such conduct. Ib. The exaction of the oath is the mode provided for ascertaining the parties upon whom the act is intended to operate. Ib. No state under the form or pretense of creating a qualification, or attaching a condition, to the exercise of any office, right or duty, can, in effect, inflict a punishment for a past act which was not punishable at the time it was committed. Cummings v. State of Missouri, 4 Wall. (U. S.) 277. To deprive or suspend any person from the exercise of any civil right for past conduct, is punishment for such conduct. Ib.

A clause in a state constitution which requires priests or clergymen, as a condition to their right to teach and preach, to take and subscribe an oath that they have not done certain specified acts which, at the time they were committed, were innocent in themselves, constitutes a bill of attainder within the meaning of the constitution of the United States, and it is therefore void. Ib.

A law of a state changing the place of trial from one county to another county in the same district, or even to a different district from that in which the offense was committed, or the indictment found, is not an ex post facto law, though passed subsequently to the commission of the offense, or the finding of an indictment. Gut v. State, 9 Wall. (U. S.) 35. An ex post facto law does not involve, in any of its definitions, a change of the place of trial of an alleged offense after its commission. Ib.

This constitutional provision was enacted for the protection and security of accused parties against arbitrary and oppressive legislative action, and, therefore, any change in the law which goes in mitigation of the punishment is not an ex post facto law. Strong v. State, 1 Blackf. 193; Keene v. State, 3 Chand. 109; Boston v. Cummins, 16 Geo. 102; Woart v. Winnick, 3 N. H. 473; State v. Arlin, 39 N. H. 180; Clarke v. State, 23 Miss. 261; Maul v. State, 25 Texas, 166.

In New York the rule is, that a law changing the punishment for offenses 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. Hartung v. People, 22 N. Y. (8 Smith) 105; Shepherd v. People, 25 N. Y. (11 Smith) 406; 24 How. 388; Ratzky v. People, 29 N. Y. (2 Tiff.) 124; 28 How. 112; Kuckler v. People, 5 Park. 212.

It is not always easy to determine what changes in the law are to be regarded as in mitigation thereof. Changes in the modes of procedure or in the criminal practice are not considered er post facto in their nature. And changes have been held to be constitutional in cases like the following: a change which precludes a defendant from taking advantage of variances on trial for an offense alleged to have been committed prior to such change, if such variances do not prejudice him. Commonwealth v. Hall, 97 Mass. 570.

So of a change which authorizes an amendment of indictments. State v. Corsm, 59 Maine, 137; Lasure v. State, 19 Ohio, N. S. 43; State v. Manning, 14 Texas, 402; or one which

abstaining must of consequence be cruel and unjust. Laws should therefore in general be made to commence in futuro, and be notified before their commencement; which is implied in the term "prescribed." But when this rule is in the usual manner notified, or prescribed, it is then the subject's business to be thoroughly acquainted therewith; for if ignorance, of what he might know, were admitted as a legitimate excuse, for a breach of law, the laws would be of no effect, but might be eluded with impunity.(9)

gives the State additional challenges. Walston v. Commonwealth, 16 B. Monr. 15; State v. Ryan, 13 Minn. 370; State v. Wilson, 48 N. H. 398; Commonwealth v. Dorsey, 103 Mass. 412; Waterford and Whitehall Turnpike Co. v. People, 9 Barb. 161. But no change can be made which deprives the accused person of any substantial protection which was established for the purpose of securing a fair trial. Hart v. State, 40 Ala. 21.

(9) By the English law, a statute related to the first day of the session of parliament at which it was made, unless the act specified a different time for its commencement. Panter v. Atty.-Gen. 6 Bro. P. C. 486; Latless v. Holmes, 4 Term R. 660. This rule was changed by 33 Geo. III, ch. 13, which fixes the time to be when the act receives the royal assent, if no other time shall be provided in the act.

In New York, every law, unless a different time shall be prescribed therein, shall commence and take effect on and not before the twentieth day after the day of its final passage. 1 R. S. 157, S 12.

The English rule of construction does not give a retrospective effect unless the statute by precise words clearly shows that such was the intention of the legislature. Thompson v. Lack, 3 C. B. 540; 16 L. J. C. P. 75; Evans v. Williams, 2 Drew. & Sm. 324; Marsh v. Higgins, 9 C. B. 551; 1 L. M. & P. 253; 13 L. J. C. P. 297.

In the United States no rule is better settled than that which declares that every statute is to apply to none but future cases, unless the statute itself clearly and unequivocally declares a different intention. Dash v. Van Kleeck, 7 Johns. 477; Sandford v. Bennett, 24 N. Y. (10 Smith) 20, 23; People ex rel. Peake v. Supervisors of Columbia Co., 43 N. Y. (4 Hand) 130, 135; Plumb v. Sawyer, 21 Conn. 351; Briggs v. Hubbard, 19 Vt. 86; Atkinson v. Dunlap, 50 Me. 111; Hastings v. Lane, 3 Shep. 134; Thompson v. Alexander, 11 Ill. 54; State v. Barbee, 3 Ind. 258; Allbyer v. State, 10 Ohio St. 588; State v. Atwood, 11 Wis. 422 ; Bartruff v. Remey, 15 Iowa, 257; Tyson v. School Directors, 51 Penn. St. 9; Graham, Ex parte, 13 Rich. 277; Clark v. Baltimore, 29 Md. 277; State v. The Auditor, 41 Mo. 25. Statutes may be retroactive in their character, and yet be valid, as in the case of a statute enacted to cure defects in legal proceedings, which are mere irregularities, and do not relate to matters of jurisdiction, if there is no express constitutional prohibition. Such statutes have sometimes been enacted to cure irregularities in the assessment of property for taxation and the levy of taxes upon it. Butler v. Toledo, 5 Ohio St. 225; Boardman v. Beckwith, 18 Iowa, 292. So of irregularities in the organization or elections of corpora tions. Syracuse Bank v. Davis, 16 Barb. 188; Mitchell v. Deeds, 49 Ill. 416. So in relation to sales of land made by order of a surrogate. Forbes v. Halsey, 26 N. Y. (12 Smith) 53, 63; Chandler v. Northrop, 24 Barb. 129; Wood v. Mc Chesney. 40 id. 417, 422. So of a sale of real estate of infants when made in a partition suit, a defect in the proceedings may be cured by a subsequent statute. Kearney v. Taylor, 15 How. (U. S.) 493, 517.

Laws which impair the validity of existing valid contracts, partake of the nature of ex post facto laws, and are prohibited by the constitution. U. S. Const, art. 1, § 10. Contracts between States are as binding as those between individuals. Fletcher v. Peck, 6 Cranch, 133.

An office created by law may be repealed by law, without regard to the term or future salary of the officer intrusted with its exercise. Conner v. Mayor, etc., of N. Y., 2 Sandf. 355, 369; 5 N. Y. (1 Seld.) 285; Smith v. Mayor, etc., of N. Y., 37 N. Y. (10 Tiff.) 518, 520; 5 Trans. App. 228; Warner v. People, 2 Denio, 272; Commonwealth v. Bacon, 6 S. & R. 322; Com. monwealth v. Mann, 5 W. & S. 418.

If the office itself be secured by the constitution, and the compensation be left to the legislature, it may be increased or diminished, so as to affect the incumbent, whether the compensation be by fees or by salary, as the public good may require. Ib.

But, farther: municipal law is a rule of civil conduct prescribed "by the supreme power in a State." For legislature, as was before observed, is the greatest act of superiority that can be exercised by one being over another. Wherefore it is requisite to the very essence of a law, that it be made by the supreme power. Sovereignty and a power to legis

"by the supreme power.'

Although an office be created by the constitution, the people may by a new constitution terminate the office. Ib. But where the term of office is fixed by the constitution, the legis lature cannot remove the officer, except in the mode allowed by that instrument, nor can it remove him directly, or indirectly by abolishing the office. People v. Dubois, 23 Ill. 547; State v. Messmore, 14 Wis. 163; Commonwealth v. Gamble, 62 Penn. St. 343; State v. Brunst, 26 Wis. 412; 7 Am. R. 84.

Charters of incorporation which are granted for the private benefit or purposes of the corporators, are contracts between the legislature and the corporators, and the grant cannot be resumed nor its benefits diminished or impaired without the consent of the grantees, unless the right to do so is reserved in the charter. Dartmouth College v. Woodward, 4 Wheat. 519; Binghamton Bridge Case, 3 Wall. 51; Morris v. Trustees of Abingdon Academy, 7 G. & J. 7; Grammar School v. Burt, 11 Vt. 632; Brown v. Hummel, 6 Penn. St. 86; State v. Heyward, 3 Rich. 389; Backus v. Lebanon, 11 N. H. 19; Michigan State Bank v. Hastings, 1 Doug. (Mich.) 225; Bridge Co. v. Hoboken Co., 2 Beas. 81; Miners' Bank v. United States, 1 Green (Iowa), 553; Edwards v. Jagers, 19 Ind. 407; State v. Noyes, 47 Me. 189; Bruffett v. G. W. R. R. Co., 25 Ill. 353; Bank of the State v. Bank of Cape Fear, 13 Ired. 75; Hawthorne v. Calef, 2 Wall. 10; Central Bridge v. Lowell, 15 Gray, 106; State v. Tombeckbee Bank, 2 Stew. 30.

No one can have a vested right in the existing general laws of the state, which will preclude their amendment or repeal, for there is no implied promise on the part of the state to protect its citizens against such incidental injuries as may result from a change in the law. "There are few laws which concern the general police of a state, or the government of its citizens, in their intercourse with each other or with strangers, which may not in some way or other affect the contracts which they have entered into or may thereafter form. For what are laws of evidence, or which concern remedies, frauds and perjuries, laws of registration, and those which affect landlord and tenant, sales at auction, acts of limitation, and those which may limit the fees of professional men, and the charges of tavern-keepers, and a multitude of others which crowd the Codes of every state, but laws which affect the validity, construction, or duration, or discharge of contracts." WASHINGTON, J., in Ogden v. Saunders, 12 Wheat. 259. Changes in such laws need not necessarily affect the obligation of contracts, and therefore changes which merely relate to the remedy may be altered by the legislature, if such alteration does not impair the obligation of the contract; and the contract is not impaired if the parties have left to them a substantial remedy according to the course of justice as it existed at the time when the contract was made. Stocking v. Hunt, 3 Denio, 274; Butler v. Palmer, 1 Hill, 324; Van Rensselaer v. Ball, 19 N. Y. (5 Smith) 100; Grosvenor v. Chesley, 48 Me. 369; Sanders v. Hillsborough Insurance Co., 44 N. H. 238; Mechanics, etc., Bank Appeal, 31 Conn. 63; Clark v. Martin, 49 Penn. St. 290; Maynes v. Moore, 16 Ind. 116; Smith v. Packard, 12 Wis. 371; Coriell v. Ham, 4 Greene (Iowa), 455; Auld v. Butcher, 2 Kan. 135; Paschal v. Perez, 7 Tex. 348, 365; Rison v. Farr, 24 Ark. 161. Laws changing remedies for the enforcement of contracts will be valid, even though the new remedy be less convenient or less prompt than the old one. Ogden v. Saunders, 12 Wheat. 270; Quackenbush v. Danks, 1 Denio, 128; 3 id. 594; 1 N. Y. (1 Comst.) 129; Morse v. Goold, 11 N. Y. (1 Kern.) 281; Penrose v. Erie Canal Co., 56 Penn. St. 46; Tarpley v. Hamer, 17 Miss. 310; Bronson v. Newberry, 2 Doug. (Mich.) 38; Evans v. Montgomery, 4 W. & S. 218; Holloway v. Sherman, 12 Iowa, 282; Sprecker v. Wakeley, 11 Wis. 432.

Although the law at the time of making the contract permits the creditor to take the body of his debtor in execution, yet the legislature may abolish this right and leave the creditor to his remedy against property alone. Sturges v. Crowninshield, 4 Wheat. 370; Mason v. Haile, 12 id. 370; Bronson v. Newberry, 2 Doug. (Mich.) 38; Maxey v. Loyal, 38 Ga. 540. So the laws relating to the exemption of property from execution are valid. Bronson v. Kenzie, 1 How. (U. S.) 311; Quackenbush v. Danks, 1 Denio, 128; 3 id. 594; 1 N. Y. (1 Comst.) 129; Morse v Goold, 11 N. Y. (1 Kern.) 281; Rockwell v. Hubbell's Administrators, 2

are

late indeed thus far convertible terms: that one of these cannot subsist without the other.

This may lead us into a short inquiry concerning the nature of society and civil government; and the natural, inherent right which belongs to the sovereignty of a state, wherever that sovereignty be lodged, of making and enforcing laws.

kind.

[ *41]

The only true and natural foundations of society are the *wants and the fears of individuals. Not that we can believe, with some theoretical writers, that there ever was a time when there was no such thing Origin and nature of society. as society, either natural or civil; or when, from the impulse of reason, and through a sense of their wants and weaknesses, individuals met together in a large plain, entered into an original contract, and chose the tallest man present to be their governor. This notion, of an actually existing unconnected state of nature, is too wild to be seriously admitted; and besides it is plainly contradictory to the revealed accounts of the primitive origin of manFamilies formed the first natural society, among themselves; which, every day extending its limits, laid the primary, though imperfect rudiments of civil or political society; when, however, a social community grew too large to subsist with convenience in that pastoral state, wherein the patriarchs appear to have lived, it necessarily, by various migrations, subdivided itself. Afterwards, as agriculture increased, which employs and can maintain a much greater number of hands, migrations became less frequent: and various tribes, which had previously separated, reunited; sometimes by compulsion and conquest, sometimes by accident, and sometimes perhaps by compact. But though society had not its formal beginning from any convention of individuals, actuDoug. (Mich.) 197; Sprecker v. Wakeley, 11 Wis. 432; Cusic v. Douglas, 3 Kan. 123; Maxey v. Loyal, 38 Ga. 531; Hill v. Kessler, 63 N. C. 437; Hardeman v. Downer, 39 Ga. 425. But. the increase in exemptions cannot go to the extent of rendering the remedy nugatory or impracticable. Stephenson v. Osborne, 41 Miss. 119.

A law which deprives a party of all legal remedy is clearly void, as it must necessarily impair the obligation of existing contracts. Call v. Hagger, 8 Mass. 423, 430; see Griffin v. Wilcox, 21 Ind. 370; Penrose v. Erie Canal Co., 56 Penn. St. 46; Jackoway v. Denton, 25 Ark. 641; Oatman v. Bond, 15 Wis. 20.

No person can be deprived of his right to maintain an action merely because he participated in the rebellion against the government. Rison v. Farr, 24 Ark. 161; McFarland v. Butler, 8 Minn. 116; Jackson v. Butler, id. 117; see Drehman v. Stifle, 8 Wall. (U. S.) 599. Valid contracts entered into while a statute is in force will remain valid notwithstanding the repeal of such statute. Tuolumne Redemption Co. v. Sedgwick, 15 Cal. 515; McCauley v. Brooks, 16 id. 11; Commonwealth v. New Bedford Bridge, 2 Gray, 339; State v. Phalen, 3 Harr. 441; State v. Hawthorn, 9 Mo. 389.

A statute which shortens in time for the redemption of land from a mortgage, after a foreclosure sale, is not void. Butler v. Palmer, 1 Hill, 324; Robinson v. Howe, 13 Wis. 346; Smith v. Packard, 12 id. 371; State v. Commissioners of Schools and University Lands, 4 id. 414. A statute exempting parties from prosecution for libel in publishing legislative debates, does not apply to libels published before the statute was enacted. Sanford v. Bennett, 24 N. Y. (10 Smith) 24.

But a right to penalties given by statute may be taken away by a repeal of the statute. Hoppock v. Stone, 49 Barb. 524.

Although a verbal promise to revive a debt may be valid at the time of making the contract, a statute subsequently enacted which requires a written promise, is constitutional and valid. Joy v. Thompson, 1 Doug. (Mich.) 373; Kingley v. Cousins, 47 Me. 91; see, also, McLaren v. McMartin, 36 N. Y. (9 Tiff.) 88; 33 How. 449; 3 Abb. N. S. 345; 1 Trans. App. 226. See post- Note 30.