Wilmington journal. [volume] (Wilmington, N.C.) 1844-1895, 1867-03-01


lext term, to answer the charge, and OF
| conviction, he shall be fined or i'm
orisoned at the discretion of the Court. -
| The defendant, who was citizen O.
| 5he county of Carteret, and had carried
| on the business of merchant in that coun
| ty, by buying and selling goods, wares ano
| merchandise, during the whole of the year
| 1865, refused to make the oath required by
the ordinance, but offered to swear to tn.
amount of his purchases after the 18th day
Of October, 1865, that being the day Oh
which the ordinance was ratified. 10
| this proposition the Sheriff refused to
accede, and proceed to bind him over to
the next Superior Court of Law, for the
county, at which Court, he was indicted for
| q violation of the Ordinance, tried and con-
yicted, and from the Judgment then pro-
nounced against him. he has appealed to
| this Court On the argument here, the
counsel for the defendant contends that
the Ordinance of the Convention, under
which his client was convicted and SEN
| fenced, is unconstitutional and void
| First. Because it is an &c post .facto law,
and therefore prohibited by the Corstitu-
ton OF the United States which declares
that no State shall ''pass any bill of attain
der OF ee post .fttctO law" Con. Z. S., Art
], Sec. 10, part |. It becomes necessary
|
question was answered and settled by the
Supreme Court of the United States, in the
case Of Calder VS.. Bull 3 Dallas, 1856, in
| which it WAS defined to be as follows 1st
! Every law that makes an action done before
the passing of the law, and which was limo
cent when done, criminal, and Furnishes
such action. I'd Every law that aggravates
a crime or makes it greater than it was be-
! fore it was committed. Sd. Every law that
changes the punishment and inficts Il
greater punishment than the law annexed
to the crime when it was 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
| 20 convict the offender" This definition,
thus given by Judge Chase, in pronouncing
| the opinion of the Court, has been univer-
sally accepted and approved and it shows
| that an e,r post 0ct0 law in the sense III
which it is used in the Constitution, applies
10 matters Of a criminal nature, and to
them only. Il Kents' Commentaries, 400 ;
! 3 StOry'S Commentaries on the COnst1tu-
ition, 2l2 State as. Bond 4, Jones, g.
The twenty -fourth Section Of our Bill Of
Rights, which says, that retrospective
| laws furnishing acts committed before the
existence Of such laws, and by them, only
declared criminal, are oppressive, unjust
and incompatible with liberty. Wherefore,
no &c post ftlct0 law ought to be made" has
received similar construction, Dickinson
as Dickinson 3 Murphy, c27. Tried by
! the test Of this definition OF an &c post fdct0
/ law, the Ordinance Of the Convention is
not in the slightest degree obnoxious to
censure. It does not declare criminal any
action done by the defendant before it was
! passed, nor does it aggrayate the criminal
! ity Of any act which he had previously
committed. nor does it charge or increase
! the punishment for any alleged crime, nor
change the rules OF evidence to make
conviction easier On the contrary it re-
cognizes the defendant as having been en-
gagged in lawful business, upon which it
simply proposes to lay q tax. What it de
ctares to be crime is something which lie
may DO or refuse to do afterwards and III
respect to such criminality, it is altogether
prospective IF he were not bound to rem
der an account on cath of his purchases as
a merchant prior to the passage Of the Or
dinance, it must therefore be for some
other cause, than that the Ordinance is an
e." past fcttfp law.
Second. Upon the supposition that his
first objection might not be sustained, the
counsel contend IN the second place, that if
the Ordinance be not al cr post fdctO law
IL
as being against the spirit if not the letter
Of the Constitution. For this position the
counsel has referred to and relies upon
what is said by Dwariss Oh statutes. 1T
is a general rule, say the books, that 40
statute IS to have q retrospect beyond the
time Of lis commencement, for the rule and
law OF Parliament is that n0ou c0lasfit,tti0 IT,
h,yTS fOrn1un oebct impone}e NON propteri-
It's. And not only is it the doctrine Of the
English laws that a statute is not to have
Retrospective effect, but it is also founded
on the principles of general jurisprudence.
A retroactive statute would partake in
its character Of an Ct post fuct0 law, as to
all cases Of crimes and penalties, and in
matters relating to contracts or property"
would violate every sound principle. -
Dwarf. on Stat. $50 and 6S1, 60 Law Lib
Boz Whenever a retrospective statute APP
plies to crimes and penalties it is an e.c post
fitcto law and as such Is prohibited by the
constitution of the United States not only
to the States, as we have already seen, but
to Congress. See Art. l. Sec. 8, par. s.
The omission Of any such prohibition in
the Constitution Of the State, and also of
the United States, IS strong argument to
show that retrospective laws, merely as
such, were not intended to be forbidden.
1t furnishes an instance for the application
of the maxim, erpressiO unius est e.ccI1si0 al
teTiuS We know that retrospective statutes
have been passed and enforced in our
Courts, Of which the case of the State IS
Pool, Iredell 105, furnishes striking ex-
ample. In that case it was decided that q
bond given by Sheriff for the discharge
OF his official duties, though void, accord
ing to the previous decisions of the Su-
preme Court, because those who accepted
it had at the time no legal authority to do
so, yet will become valid ab iaiio from a
subsequent Act of the Legislature, de-
claring that such bonds shall be considered
as having been legally delivered. And
this consequence will follow, although the
Act of Assembly was passed, not only
| subsequently to the institution of the
action, but also to the determination in the
Court below, and the appeal to the Su-
preme Court. In the argument of the case,
it has been contended that the Act ought to
be construed so as to extend only to bonds
subsequently executed but in delivering
the opinion of the Court it was said that
though Statutes ought not to be deem
ed retrospective, except from necessity, vet
the words have been taken - as annIio1