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act, which in its effect, or by way of definition, may have a retroactive operation by way of relation to past events. Such acts of legislation as we have stated, when limited within the appropriate sphere, may, undoubtedly, be within the legislative power, and such acts have received judicial sanction.
It is sometimes difficult to distinguish, if really there be any distinction, between retrospective, and ex post facto laws, except that the constitution expressly prohibits the latter, and if the former are not inhibited, it is because there is a hair splitting difference, most difficult to define. In a general, literal sense, an ex post facto law, is one passed in regard to an act, after the act is done; but in its most comprehensive definition, it includes all retrospective laws, or laws governing or controlling past transactions, whether they are of a civil or criminal nature. Laws, how ever, which mitigate the character or punishment of a crime al ready committed, though retrospective, may not fall within the prohibition of the constitution, for they are in favor of the citizen. Ex post facto laws, it is held, relate only to penal and criminial proceedings, and not to civil proceedings which affect private rights retrospectively.a This is claimed to be the distinction. So that by this distinction, all acts legalizing past proceedings; all acts of relief, or pardon, or indemnity; all acts that mitigate the malignity of an offence, or modify the rigor of the criminal law, though retrospective; are not in the constitutional sense ex post facto.
a Dash v. Van Kleek, 7 John. 477.
vious laws, is retrospective and objectionable on that ground. Davis v. O'Farrell, 4 Greene (Iowa) 168.
An act releasing a portion of the duties on prize goods captured by private armed vessels, was held not to apply to captures previous to its passage, thougn the condemnation took place subsequently. Prince v. U. S. 2 Gall. 204. So a statute concerning the effect of wills upon after acquired lands, was held not to apply to a will previously executed, the testator having died subsequently. Carrol v. Carrol, 16 Howard, 275.
A statute limiting suits on foreign judgments, was held not to apply to judg ments recovered before its passage. Murray v. Gibson, 15 How. 421.
A statute making valid a certificate of a proof of a deed, after a decree rendered in a court of equity, is void; it cannot change the then existing rights of the parties. Garrett v. Stockton, 7 Humph. 84.
Although the remedy of a party to a contract may be modified by subsequent statutes, yet a statute which takes away all remedy impairs its obligation. Bruce v. Schuyler, 4 Gilm. 221.
Justice Chase divides ex post facto laws into four classes. a 1st. Every law that makes an action done before the passing of a law, and which was innocent when done criminal, and punishes the action. 2d, Every law that aggravates a crime, or that 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.
The provisions of the second article of the new constitution of Missouri, which forbid any priest or clergyman from teaching or preaching, unless he shall first take "the oath of loyalty" declaring that he has never been in armed hostility to the United States &c, &c, that he has never by act or word manifested his adherence to the cause of the enemies of the United States, or his desire for their triumph; or his sympathy with those engaged in rebellion; that he has never come into or left the state for the purpose of avoiding enrolment or draft into the military service; was held, to be in effect a bill of attainder, and ex post facto law. b So too, the act of congress of 2d July, 1862, providing that after its passage no person should be admitted to the bar of the Supreme Court of the United States, or, after a certain day specified, to the bar of any circuit or district court, or of the court of claims, as an attorney or counsellor, without having first taken the oath prescribed in said act, declaring that the deponent has never voluntarily borne arms against the United States since he has been a citizen thereof; that he has not given aid, &c., to persons engaged in armed hostility thereto; or sought to exercise any office in hostility thereto, or yielding a voluntary support to any pretended government within, and hostile to the United States, &c, is within the prohibition of the constitution against bills of attainder, and ex post facto.c
But the following cases, which are put in books, may certainly happen in practice: A man may covenant not to do an act which is lawful, and a statute may be afterwards made which compels
b Cummings v. Missouri 4 Wall. 277.
a Calder v. Bull, 3 Dall. 386.
c Exparte, Garland, id. 333.
him to do the act: or, a man may covenant to do an act which is lawful, and by a statute made afterwards, he may be forbidden to do the act; in both these cases it has been said, the statute repeals (or rescinds) the covenant. a But this doctrine has been impugned in a latter case, where it was held that the sense of the words of a statute passed subsequently, ought not to be strained, so as to avoid the contract; to the benefit whereof some person was entitled, at the time the statute was made. b And in an action for a penalty, where the defendant had paid the duties under a new act discharging the penalty on such payment by a given day, Lord Mansfield said: "Here is a right vested, and it is not to be imagined that the Legislature could by general words take it away; they certainly meant future actions." c
But these cases (actual or suppositious) do not apply, where, in order to prevent the mischief there contemplated, the statute gives due notice that the law shall not have any operation till after a definite and extended period, and time is given to bring their actions previously to its coming into operation. On this ground Fowler and Chatterton was decided. There the plaintiff sued in Hilary term, 1829, on a debt accrued six years before: held that the 9 Geo. 4, c. 14, which came into operation on January 1, 1829, precluded him from recovering on an oral promise to pay the debt made by defendant in Febuary, 1828; d because the operation of that act was postponed to give persons time to bring their actions.
The rule formerly was, that when the commencement of an act was not directed to be from any particular time, it took effect from the first day of the session in which the act was passed; which might be weeks, if not months, before the act received the royal sanction, or even before the bill was brought into parliaThis was an extraordinary instance of the doctrine of relation working gross injustice, as well as being full of absurdity. Yet the rule was plainly declared as early as the time of Henry VI, e and uniformly adhered to, though the consequence of it, was sometimes, to render an act murder, which would not have been. so without such relation. The case of the Attorney General v. Panter is a strong instance of the application of this rigorous and unjust rule of the common law, even at so late a period as the year 1772. An act for laying a duty on the exportation of rice, thereafter to be exported, received the royal assent on the 29th of June, 1767, and on the 10th of June of that year, the defendants had exported rice. After the act passed, a duty was demanded upon the prior exportation, and it was adjudged, in the Irish Court of Exchequer, to be payable. The cause was carried by appeal to the British House of Lords, on the ground of the palpable injus
a Salk. 198.
c 4 Burr, 2460.
33 H. 6, 18; Bro. 33.
b Lord Raymond, 1352
d 6 Bing. 258.
ƒ1 Lev. 91.
tice of punishing the party for an act innocent and lawful when it was done; but the decree was affirmed upon the opinion of the twelve judges, that the statute by legal relation commenced from the first day of the session. a So, in the case of Latless v. Homes,o the judges held that they could not take notice of the great hardship of the case. The rule, indeed, was so firmly settled, and sanctioned by so many decisions, as to require the interference of the legislature to control it. Accordingly the stat. 33 Geo. 3, c. 13, enacts, that the clerk of the parliament shall endorse on every act the time it receives the royal assent, which shall be the date of its commencement, where no other is provided; thus abolishing the ancient rule, as liable to produce manifest injustice, c and substituting another rule designed to prevent the mischief that a statute should, by any fiction, or relation, have any effect before. it was actually passed.
Although in an act of parliament, it is expressly enacted that it shall commence and take effect from a day named, yet if the royal assent be not obtained until a day subsequent, the provisions of a particular section, in its terms prospective, do not take effect till subsequent day. d In Rex v. Justices of Middlesex, e two acts of parliament which passed during the same session, and were to come into operation on the same day, were repugnant to each other, and the question was which was to take effect. (The case of the Attorney General v. The Chelsea Water Works company was cited from 2 Dwarris on Statutes, 675,) Lord Tenterden said, "We are of opinion that the act which last received the royal assent must prevail. Our decision is conformable with the doctrine laid down in the case cited. There it was resolved, that where the proviso of an act of parliament is directly repugnant to the provision of it, the proviso shall stand, and be held a repeal of the purview, as it speaks the last intention of the makers. At the time that resolution was come to, it was not possible to know which of the two acts, passed in the same session, received the royal assent first; for there was then no endorsement on the roll, of the day on which bills received the royal assent; and all acts passed in the same session, were considered as having received the royal assent on the same day, and were referred to the first day of the session. Now, however, it is known on what day each bill receives the royal assent by the provisions of stat. 33, Geo. 3, ch. 13.
There is nevertheless some, and that not inconsiderable hardship in the rule as it now stands; for a statute is to operate from the very day it passes, if the law itself does not appoint the time.
b 4 T. R. 660.
a Attorney General v. Panter, 6 Bro. A. C. 553.
c Words of preamble to 33 Geo. 3, c. 13.
d Barn v. Cavallo, (in error) 4 Nev. & M. 893. e 2 B & A. 818, 2 Bing, N, D, 682,
It is impossible, in the distant parts of the United Kingdom, to have notice of the existence of the law, until some time after it has passed; and in America in the wide spread dominion of the United States, where the same rule is adopted, this inconvenience is strongly felt. a It would be no more than reasonable, that the statute should not be deemed to operate upon the persons and property of individuals, or impose pains and penalties for acts done in contravention of it, till such time had elapsed as would enable the party, with proper diligence, to ascertain the existence of a law, of which there is now no formal promulgation or publication,* on the principle of "Le mode progressif, calcule en raison des distances." The Code Napoleon, after much discussion and an enlightened consideration of the whole question, adopted the true rule: It declared that laws were binding from the moment their promulgation could be known: and that the promulgation should be considered as known in the department of the consular (afterwards imperial) residence one day after that promulgation, and in each of the departments of the French Empire, after the expiration of the same space of time, augmented by as many days as there were distances of twenty leagues between the seat of government and the place.-See Conference du Code Civil, Titre Prelimenaire: de la publication, des effets and de l'application des lois en general. This projet was three times revised and essentially altered, the first Consul taking an active and intelligent part in the deliberations. On the Redaction communique au Tribunat, the following were some of the " Observations du TRIBUNAT" Cet article donne lieu a la discussion des differents modes de publication des lois, pour choiser celui que doit etre prefere. Le section se prononce pour le mode progressif calcule en raison des distances. Le mode progressif est fonde sur la nature: il faut rendre la loi executoire au moment ou on la connait, &c-pp. 19, 20.
To illustrate the inconsistency of our doctrine and practice: A prisoner was indicted for maliciously shooting; the offence was within a few weeks after the 39 Geo. 4, c. 37, passed, and before notice of it could have reached the place where the offence was committed. The judges thought the prisoner could not have been tried if that statute had not passed, and as he could not know of
a R. v. Bailey, R. and R. C. C. 1; 1 Russ. C. and M. 109.
Les lois ne pouvent obliger sans etre connues; nous nous sommes occupes de la forme de leur promulgation. Elles ne peuvent etre notifiees a chaque individu. On est force de se contenter d'une publicite relative, qui, si elle ne peut produire a temps dans chaque citoyen la connoisance de la loi a laquelle it doit se conformer, suffit au moins pour prevenir tout arbitraire sur le moment ou la loi doit etre executee."-Discours preliminaire du premier projet du Code Civil, p, 30,
In Spain, the written law, "that is, the reading (legenda) in which there exists (yace) written instruction and chastisement," is not obligatory, unless published by proclamation or edict; then it is universally binding, because all are bound to know or study it.-L. 4, title 1, part 1; 1, 12, t 2, lib. 3, Nov. Rec.