The New International Encyclopædia/Ex Post Facto

EX POST FACTO (Lat., more accurately ex postfacto, from what is done afterwards). A legal term, designating something as done after or arising from or affecting another thing that was committed before. In this broad sense, it is applied to the acceptance of an estate by the grantee in a deed, conveying it to him, which estate he had the right to reject or accept. It is also applied to every act of a legislative body, or of a court, having a retroactive effect. The term is most frequently used, however, in a narrower and more technical sense. This is due to certain provisions of our Federal and State constitutions, prohibiting the enactment of ex post facto laws. The term in this connection does not embrace retrospective laws in general, but is confined to laws of a criminal or penal nature. Hence, a statute setting aside a decree of the Court of Probate rejecting a will and directing a new hearing before the court is not within this constitutional prohibition, however repugnant it may be to the principles of sound legislation. In order to come within the prohibition the law must render an act punishable in a manner in which it was not punishable when it was committed. It is not necessary, however, that the punishment be of a strictly criminal character. A law which excluded a minister of the Gospel from the exercise of his clerical functions, and a lawyer from practice in the courts, unless he would take an oath that he had not engaged in or encouraged armed hostilities against the Government of the United States, was declared by the United States Supreme Court to be ex post facto because it punished in a manner not before punished by law offenses committed before its passage, and because it instituted a new rule of evidence in aid of conviction. On the other hand, a statute is not ex post facto which mitigates instead of increasing punishment, or which changes the rules of evidence or procedure in matters of detail without impairing any substantial right which the law gave the accused at the time when his alleged criminal act was done. In conclusion, it should be remembered that the constitutional provisions in question have always received a liberal construction, with the view of giving full effect to this avowed purpose of protecting the individual right of life and liberty against hostile retrospective legislation. Consult: Cooley, The General Principles of Constitutional Law in the United States (Boston, 3d ed. 1900); Kringo vs. State of Missouri, 107 United States, 221.