SUBSEQUENTLY TO OFFENCE.

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fore applicable to the case of an offence previously committed, is well illustrated by the case of Ratzky ". The People.1 There the prisoner had been convicted of murder in the first degree. The offence was committed when the act of 1860 was in force, which prescribed the mode of punishment; he was sentenced, however, in accordance with the terms of an act passed in 1862, subsequently to the commission of the offence, and which prescribed a different mode of punishment. On this account the judgment was held to be erroneous, and was reversed on the ground that the act of 1862 applied to offences previously committed, and was ex post facto. At the time of the commission in 1861, it was the well-settled law of New York, as decided in Shepherd v. The People,2 that when a wrong judgment had been pronounced, although the trial and conviction were regular, the prisoner could not, on reversal of the judgment, be subject to another trial, but would be entitled to his discharge. But on April 24, 1863, after the prisoner had been tried and convicted, but before judgment and sentence were pronounced, an act of the legislature took effect, which provided that the appellate court should have power, upon any writ of error, when it should appear that the conviction had been legal and regular, to remit the record in which such conviction had been had, and to pass such sentence thereon as the appellate court should direct. But for the authority conferred by this act, the Court of Appeals stated that it would have had no power, upon reversal of the judgment of the Supreme Court, either to pronounce the appropriate judgment or remit the record to the Oyer and Terminer to give such judgment; but, on the contrary, would have been obliged to discharge him, the law not authorizing another trial. Nevertheless, the Court of Appeals gave effect to the act of 1863 as not being an ex post facto law. And yet it deprived the prisoner of the benefit of a rule of the law in force at the time the offence was committed; namely, that if he should be erroneously sentenced, and the judgment should be reversed, he would be entitled to be discharged, and forever after protected against 1 29 N. Y. 124. 2 25 N. Y. 406.

further prosecution for the same offence, as well as against any second judgment upon the same verdict."

When such a difference of opinion exists among the judges, the public may think for themselves; and most persons would probably incline to the conclusion reached by the minority. The prisoner was not deprived of a defence in the ordinary sense of the term, and merely lost a benefit depending on unforeseen contingencies which he could not control. The effect of a plea of guilty of murder in the second degree in screening the accused from a convetion of murder in the first degree is due not to the prisoner's confession, but to its acceptance by the court, which is a public act, and may be regulated by the State. When, therefore, an amendment to the Constitution directly or indirectly provides that on the withdrawal of such a plea, or when it is set aside at the instance of the accused, the case shall stand as though the plea had not been made, and the accused elects not to abide by the plea, he cannot allege that the amendment is retrospective as to him, or that it deprives him of any right which has actually accrued. It seems to have been conceded that had the court below given leave to withdraw the plea, Kring might have been tried and convicted of murder in the first degree; and when the Supreme Court of Missouri reversed the sentence because the motion was not allowed, it in effect did what the court below had refused to do, and the plea should seemingly have been regarded as expunged from the record at the prisoner's request, and therefore as if it had never been made. In this aspect of the case it was independent of the change in the Constitution, and stood on the simple ground that a man cannot have the benefit of that which he has chosen to withdraw. When the conviction is set aside at the prisoner's request, it cannot be pleaded to a subsequent trial or indictment, nor can he complain of being again in jeopardy, because the act is virtually his own.

The common law rule that a person who has been convicted in due course of law by a jury legally called and impanelled shall not be again put in jeopardy for the same offence, has generally been regarded as a humane provision to protect the

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accused from reiterated prosecutions, by which he might at length be overwhelmed ; and it is clear that as a conviction of manslaughter is an acquittal of murder, any law which abrogates the right to take advantage of it as a defence for past acts is necessarily ex post facto. The judgment in Ratzky v. The People is consistent with this view, because it did not authorize a new trial or deprive the prisoner of the right to plead autrefois convict, and simply directed the court below to enter the proper sentence on the verdict which the jury had pronounced. As Denio, C.-J., observed, "a person is said to be put in jeopardy only when he is a second time tried. upon a criminal accusation; but the term has no relation to the reversal of an erroneous judgment and pronouncing a legal one pursuant to one legal conviction."

Whatever doubt may exist as to the above points, there should be none that a law reviving a liability which has been discharged by an act of amnesty or a repeal of the statute which rendered the offence criminal, is ex post facto and invalid;2 and such also is the rule as regards a law rendering the accused answerable for an offence from which he has been exonerated by the lapse of the time prescribed by a statute of limitations.3

1 Darby's Case, 4 Coke, 40; Shepherd v. The People, 25 N. Y. 406, 420.

2 The State v. Keith, 63 N. C. 140; Kring v. Missouri, 107 U. S. 215, 231.

3 Moore v. The State, 27 N. J. Law, 105; The Commonwealth v. Duffy, 96 Pa. 506; The People v. Lund, 12 Hun, 283.

LECTURE XXVI.

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The Prohibition of the Ex post facto Laws and Bills of Attainder binding on the States and the General Government. That of Laws impairing the Obligation of Contracts only on the States. Reasons for this Difference. What constitutes a Contract in the Sense of the Prohibition. A Grant to one Man may operate as a Contract with another who relies on the Expectation which it holds forth. - Contracts of Record and under Seal obligatory without a Consideration. — A Consideration requisite to Parol Contracts. Judgments confessed, Ex contractu, and for Torts, and all Debts are within the Scope of the Prohibition. Contracts of a State equally protected with those of Individuals. - Executed Contracts can no more be impaired than Executory. The Grant of a Franchise a Contract. Is a Consideration essential to the Grant of an Exemption from Taxation? - Such Exemptions must be for a Public Purpose.

THE main object of the Barons who met at Runnymede to confront John was to obtain safeguards against the royal power, which, owing to the twofold position of the Norman and Angevin sovereigns as feudal heads and conquerors, stood at a greater height in England than on the Continent of Europe. They accordingly exacted a covenant that "no

1 Every man born on English soil owed allegiance to the king, and was required to swear that he would be faithful to him as his lord; and the king had, in the organization of the counties, and in the sheriffs and justices, who were his deputies, a means of levying forces which might, when the popular heart was not estranged, counterbalance the power of the great nobles. (Calvin's Case, 7 Coke, 6 b, Freeman's Norman Conquest, iv. 245-259.) The command of a feudal superior, consequently, was not a justification for bearing arms against the Crown, and could not be pleaded as a defence to an indictment for treason. The Barons were thus compelled to vindicate the rights of the Commons in order to maintain their own, and a cause which might have led to despotism, became a spring of English freedom. Far different was the course of events in France, where the great nobles were secure in their own strength, and the sovereign had no direct right to the obedience of any one who did not hold immediately of him or had not agreed voluntarily to be his man. Hence a vassal might

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free man shall be taken or imprisoned or disseized or outlawed or exiled or in anywise destroyed, nor will we go upon him or send upon him, save by the lawful judgment of his peers or by the law of the land." If this promise were fulfilled, no further guaranty would be requisite, because the barons composed the Parliament, and their meeting would be a safeguard, and not a menace. Such was the relative position of king, Parliament, and people until the close of the seventeenth century. The Petition of Right and the Bill of Rights, like Magna Charta, were designed as bulwarks against the Crown, and it did not occur to any one that it was possible or needful to set limits to the will of the nation as declared by the king, Lords, and Commons. The reign of George III. brought with it proofs that the Commons could act with as little regard to the rights of the subject and the freedom of speech as a king; but the efforts of Chatham, Burke, and Wilkes created a public opinion which controlled the House, and Parliament became a body to which Englishmen might securely confide their liberties and fortunes. No such confidence in the wisdom or impartiality of Parliament could well be felt during the eighteenth century in Ireland or America, where English legislation bore hardly on the manufacturing interests, with a view of preventing their growth and securing a market for English goods. Celt and Saxon were bitterly indignant in Ireland; but the wrong passed unheeded here, where more profitable sources of employment lay open on every side. It was not until Parliament asserted its omnipotence by claiming the right to tax, that the Colonists discovered that Magna Charta was not a safeguard against an assembly which wielded a more absolute authority than that claimed for the Crown by the most strenuous advocates of prerogative. It was of array his under-tenants against his lord, though he were the king, if there were no other means of obtaining justice; and they were bound to follow him to the field, on pain of forfeiting their land. Etablissements de St. Louis. Boulainvilliers, Ancien Gouvernement de France, Lettre v. pp. 155, 173; ante, p. 24.

1 See Chatham's Speech in the Lords, January, 1775, Thackeray, Life of Chatham, ii. 281; ante, p. 167.