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him; where his religious adviser and his legal counsel may often visit him without any hindrance of law on the subject, the convict is transferred to a place where imprisonment always implies disgrace, and which is itself an infamous punishment, and is there to be kept in "solitary confinement," the primary meaning of which phrase we have already explained.
The act 25 George II., c. 37, entitled "An act for the better preventing the horrid crime of murder," is preceded by the following preamble: "Whereas, the horrid crime of murder has of late been more frequently perpetrated than formerly; and whereas it is thereby become necessary that some further terror and peculiar mark of infamy be added to the punishment of death now by law upon such as shall be guilty of the said offense" -then follow certain enactments, the sixth section of which reads as follows: "Be it further enacted, That from and after such conviction and judgment given thereupon, the jailor or keeper to whom such criminal shall be delivered for safe custody shall confine such prisoner to some cell separate and apart from the other prisoners, and that no person or persons whatsoever, except the jailor or keeper, or his servants, shall have access to any such prisoner, without license being first obtained."
This statute is very pertinent to the case before us, as showing, first, what was understood by solitary confinement at that day, and, second, that it was considered as an additional punishment of such a severe kind that it is spoken of in the preamble as "a further terror and peculiar mark of infamy" to be added to the punishment of death.
It seems to us that the considerations which we have here suggested show that the solitary confinement to which the prisoner was subjected by the statute of Colorado of 1889, and by the judgment of the court in pursuance of that statute, was an additional punishment of the most important and painful character, and is, therefore, forbidden by this provision of the Constitution of the United States.
Another provision of the statute, which is supposed to be liable to this objection, of its ex post facto character, is found in section 3, in which the particular day and hour of the execution of the sentence within the week specified by the warrant shall be fixed by the warden, and he shall invite to be present certain persons named, to wit, a chaplain, a physician, a surgeon, the
spiritual adviser of the convict, and six reputable citizens of the state of full age, and that the time fixed by said warden for such execution shall be by him kept secret, and in no manner divulged except privately to said persons invited by him.
Objections are made to this provision as being a departure from the law as it stood before, and as being an additional punishment to the prisoner, and therefore ex post facto.
It is obvious that it confers upon the warden of the penitentiary a power which had heretofore been solely confided to the court; and is therefore a departure from the law as it stood when the crime was committed.
Nor can we withhold our conviction of the proposition that when a prisoner sentenced by a court to death is confined in the penitentiary awaiting the execution of the sentence, one of the most horrible feelings to which he can be subjected during that time is the uncertainty during the whole of it, which may exist for the period of four weeks, as to the precise time when the execution shall take place. Notwithstanding the argument that under all former systems of administering capital punishment the officer appointed to execute it had a right to select the time of the day when it should be done, this new power of fixing any day and hour during a period of a week for the execution is a new and important power conferred on that officer, and is a departure from the law as it existed at the time the offense was committed, and with its secrecy must be accompanied by an immense mental anxiety amounting to a great increase of the offender's punishment. .
These considerations render it our duty to order the release of the prisoner from the custody of the warden of the penitentiary of Colorado, as he is now held by him under the judgment and order of the court.
MR. JUSTICE BREWER (with whom concurred MR. JUSTICE BRADLEY) dissenting.
The substantial punishment imposed by each statute is death. by hanging. The differences between the two, as to the manner in which this sentence of death shall be carried into execution are trifling.
What are they? By the old law, execution must be within twenty-five days from the day of sentence. By the new, within twenty-eight days. By the old, confinement prior to execution was in the county jail. By the new, in the penitentiary. By the
old, the sheriff was the hangman. By the new, the warden. Under the old, no one had a right of access to the condemned except his counsel, though the sheriff might, in his discretion, permit any one to see him. By the new his attendants, counsel, physician, spiritual adviser and members of his family have a right of access, and no one else is permitted to see him. Under the old, his confinement might be absolutely solitary, at the discretion of the sheriff, with but a single interruption. Under the new, access is given to him as a matter of right, to all who ought to be permitted to see him. True, access is subjected to prison regulations; so, in the jail, the single authorized access of counsel was subject to jail regulations. It is not to be assumed that either regulations would be unreasonable, or operate to prevent access at any proper time. Surely, when all who ought to see the condemned have a right of access, subject to the regulations of the prison, it seems a misnomer to call this "solitary confinement," in the harsh sense in which this phrase is sometimes used. All that is meant is, that a condemned murderer shall not be permitted to hold anything like a public reception; and that a gaping crowd shall be excluded from his presence. Again, by the old law, the sheriff fixes the hour within a prescribed day. By the new, the warden fixes the hour and day within a named week. And these are all the differences which the court can find between the two statutes, worthy of mention.
Was there ever a case in which the maxim, "De minimis non curat lex," had more just and wholesome application? Yet, on account of these differences, a convicted murderer is to escape the death he deserves and be turned loose on society.
NOTE. The enactment of ex post facto laws is prohibited by the Constitution to both the Federal Government and the States. The language of the Constitution plainly shows that it applies only to legislative enactments and not to changes effected by judicial decision, Ross v. Oregon (1913), 227 U. S. 150; Frank v. Mangum (1915), 237 U. S. 309. It has been held repeatedly, in harmony with the early case of Calder v. Bull (1798), 3 Dallas, 386, that the term ex post facto does not apply to legislation which affects civil rights only, but Mr. Justice Johnson, in connection with his dissenting opinion in Satterlee v. Matthewson (1829), 2 Peters, 380, filed a note in which he attempted to show that the term should apply to retroactive civil legislation as well as to retroactive criminal legislation. The fourth rule stated in Calder v. Bull has received considerable modification. In a trial for murder, as a means of determining whether an incriminatory letter offered in evidence was written by
the accused, letters written by him to his wife were admitted for the purpose of comparing the handwriting. On appeal the Supreme Court of Missouri held this to be error, the conviction of the accused was set aside and a new trial ordered. Before the second trial the Legislature enacted a law providing that the authorship of a disputed writing might be proved by comparison "with any writing proved to the satisfaction of the judge to be genuine." Letters from the accused to his wife were introduced at the second trial and the accused was convicted. On appeal, in Thompson v. Missouri (1898), 171 U. S. 380, the validity of the statute as applied to the trial of crimes committed before its enactment was sustained, and the court said:
The statute did not require "less proof, in amount or degree," than was required at the time of the commission of the crime charged upon him. It left unimpaired the right of the jury to determine the sufficiency or effect of the evidence declared to be admissible, and did not disturb the fundamental rule that the State, as a condition of its right to take the life of an accused, must overcome the presumption of his innocence and establish his guilt beyond a reasonable doubt. Whether he wrote the prescription for strychnine, or the threatening letter to the church organist, was left for the jury, and the duty of the jury, in that particular, was the same after as before the passage of the statute. The statute did nothing more than remove an obstacle arising out of a rule of evidence that withdrew from the consideration of the jury testimony which, in the opinion of the legislature, tended to elucidate the ultimate, essential fact to be established, namely, the guilt of the accused. Nor did it give the prosecution any right that was denied to the accused. It placed the State and the accused upon an equality; for the rule established by it gave to each side the right to have disputed writings compared with writings proved to the satisfaction of the judge to be genuine. Each side was entitled to go to the jury upon the question of the genuineness of the writing upon which the prosecution relied to establish the guilt of the accused.
For discussion of the validity of statutes making changes in procedure see Kring v. Missouri (1883), 107 U. S. 221 (the effect of a plea of guilty of murder in the second degree was altered by constitutional provision); Thompson v. Utah (1898), 170 U. S. 343 (trial by a jury of eight substituted for trial by a jury of twelve); Hopt v. Utah (1884), 110 U. S. 574 (witness ineligible to testify when crime was committed was made eligible); Gibson v. Mississippi (1896), 162 U. S. 565 (changing the qualifications of jurors); Gut v. The State (1870), 9 Wallace, 35 (changing the place of trial); Duncan v. Missouri (1894), 152 U. S. 377 (the abolition of courts and substitution of new ones).
An act substituting electrocution for hanging, Malloy v. South Carolina (1915), 237 U. S. 180, or one providing for close confinement for a period of six to nine months before execution instead of a period
of three to six months, Rooney v. North Dakota (1905), 196 U. S. 319, is not ex post facto. In the latter case it was said "the court must assume that every rational person desires to live as long as he may."
In harmony with the decision in Cummings v. Missouri (1866), 4 Wallace, 277, it has been held that statutes requiring an attorney desiring to practice before the Supreme Court to take an oath that he had never borne arms against the United States nor held office under any authority hostile to the United States, Ex parte Garland (1867), 4 Wallace, 333, or which require the petition in certain actions to be accompanied by an affidavit to a similar effect, Pierce v. Carskadon (1873), 16 Wallace, 234, are invalid. But a statute is valid which excludes from the practice of medicine one who was convicted of a felony before its passage, Dent v. West Virginia (1889), 129 U. S. 114; Hawker v. New York (1898), 170 U. S. 189, or who cannot satisfy a medical board of his continued fitness to practice, Reetz v. Michigan (1903), 188 U. S. 505.
SECTION 2. TRIAL BY JURY.
EX PARTE MILLIGAN.
SUPREME COURT OF THE UNITED STATES. 1866.
Certificate from the Circuit Court of the United States for the District of Indiana.
[On October 5, 1864, Milligan, a citizen of Indiana who was not then and never had been in the military or naval service of the United States, was arrested by order of the commander of the military district of Indiana. On October 21, 1864, he was brought before a military commission convened at Indianapolis by the same commander, tried on certain charges and sentenced to be hanged on May 19, 1865. The sentence was approved by the President. On January 2, 1865, after the proceedings of the military commission had ended, the United States Circuit Court met at Indianapolis and empanelled a grand jury, but neither that nor any other grand jury found any indictment or made any presentment against Milligan. On May 10, 1865, he petitioned the United States Circuit Court for a writ of habeas corpus on the ground that as he had not been since the beginning of the late Rebellion a resident of any of the States whose citizens were making war on the United States the military commission had no jurisdiction over him and that