same liberality of construction of the provision, many of them going much farther than is necessary to go in this case to show the error of the Missouri courts.

In Commonwealth v. McDonough, 13 Allen (Mass.), 581, it was held that a law passed after the commission of the offence of which the defendant stood charged, which mitigated the punishment, as regarded the fine and the maximum of imprisonment that might be inflicted, was an ex post facto law as to that case, because the minimum of imprisonment was made three months, whereas before there was no minimum limit to the court's discretion. This slight variance in the law was held to make it ex post facto and void as to that case, though the effect of the decision was to leave no law by which the defendant could be punished, and he was discharged, though found guilty of the offence.

In Hartung v. The People, 22 N. Y. 95, after the prisoner had been convicted of murder and sentenced to death, and while her case was pending on appeal, the legislature of that State changed the law for the punishment of murder in general, so as to authorize the governor to postpone indefinitely the execution of the sentence of death, and to keep the party confined in the penitentiary at hard labor until he should order the full execution of the sentence or should pardon or commute it.

The Court of Appeals held that, while this later law repealed all existing punishments for murder, it was ex post facto as to that case, and could not be applied to it. This was decided in face of the fact that it resulted in the discharge of a convicted murderess without any punishment at all.

Denio, J., in delivering the opinion of the court, makes these excellent observations:

"It is highly probable that it was the intention of the legislature to extend favor rather than increased severity towards the convict and others in her situation; and it is quite likely that, had they been consulted, they would have preferred the application of this law to their cases rather than that which existed when they committed the offences of which they are convicted. But the case cannot be determined on such considerations. No one can be criminally punished in this country,

except according to a law prescribed for his government before the supposed offence was committed, and which existed as a law at that time. It would be useless to speculate upon the question whether this would be so upon the reason of the thing, and according to the spirit of our legal institutions, because the rule exists in the form of an express written precept, the binding force of which no one disputes. No State shall pass any ex post facto law is the mandate of the Constitution of the United States."

This is reaffirmed by the same court in the cases of Shepherd v. People, 25 N. Y. 406; Green v. Shumway, 39 id. 418; and In re Petty, 22 Kan. 477, decides the same thing. In State v. Keith, 63 N. C. 140, the Supreme Court of North Carolina held that a law repealing a statute of general amnesty for offences arising out of the rebellion was ex post facto and void, though both statutes were passed after the acts were committed with which the defendant was charged.

In State v. Sneed, 25 Tex. Supp. 66, the court held that in a criminal case barred by the Statute of Limitations, a subsequent statute which enlarged the time necessary to create a bar was, as to that case, an ex post facto law, and it could not be supposed to be intended to apply to it.

When, in answer to all this evidence of the tender regard for the rights of a person charged with crime under subsequent legislation affecting those rights, we are told that this very radical change in the law of Missouri to his disadvantage is not subject to the rule because it is a change, not in crimes, but in criminal procedure, we are led to inquire what that court meant by criminal procedure.

The word "procedure," as a law term, is not well understood, and is not found at all in Bouvier's Law Dictionary, the best work of the kind in this country. Fortunately a distinguished writer on Criminal Law in America has adopted it as the title to a work of two volumes. Bishop on Criminal Procedure. In his first chapter he undertakes to define what is meant by procedure. He says: "S. 2. The term 'procedure' is so broad in its signification that it is seldom employed in our books as a term of art. It includes in its meaning whatever is embraced by the three technical terms, Pleading, Evidence, and Prac

tice." And in defining Practice, in this sense, he says: “The word means those legal rules which direct the course of proceeding to bring parties into the court and the course of the court after they are brought in ;" and Evidence, he says, as part of procedure, "signifies those rules of law whereby we determine what testimony is to be admitted and what rejected in each case, and what is the weight to be given to the testimony admitted."

If this be a just idea of what is intended by the word "procedure" as applied to a criminal case, it is obvious that a law which is one of procedure may be obnoxious as an ex post facto law, both by the decision in Calder v. Bull, 3 Dall. 386, and in Cummings v. The State of Missouri, 4 Wall. 277; for in the former case this court held that "any law which alters the legal rules of evidence, and receives less or different testimony than the law requires at the time of the commission of the offence, in order to convict the offender," is an ex post facto law; and in the latter, one of the reasons why the law was held to be ex post facto was that it changed the rule of evidence under which the party was punished.

But it cannot be sustained without destroying the value of the constitutional provision, that a law, however it may invade or modify the rights of a party charged with crime, is not an ex post facto law, if it comes within either of these comprehensive branches of the law designated as Pleading, Practice, and Evidence.

Can the law with regard to bail, to indictments, to grand juries, to the trial jury, all be changed to the disadvantage of the prisoner by State legislation after the offence was committed, and such legislation not held to be ex post facto because it relates to procedure, as it does according to Mr. Bishop?

And can any substantial right which the law gave the defendant at the time to which his guilt relates be taken away from him by ex post facto legislation, because, in the use of a modern phrase, it is called a law of procedure? We think it

cannot.

Some light may be thrown upon this branch of the argument by a recurrence to a few of the numerous decisions of the highest courts construing the associated phrase in the same sentence

of the Constitution which forbids the States to pass any law impairing the obligation of contracts. It has been held that this prohibition also relates exclusively to laws passed after the contract is made, and its force has been often sought to be evaded by the argument that laws are not forbidden which affect only the remedy, if they do not change the nature of the contract, or act directly upon it.

The analogy between this argument and the one concerning laws of procedure in relation to the contiguous words of the Constitution is obvious. But while it has been held that a change of remedy made after the contract may be valid, it is only so when there is substituted an adequate and sufficient remedy by which the contract may be enforced, or where such remedy existed and remained unaffected by the new law. Tennessee v. Sneed, 96 U. S. 69.

On this point it has been held that laws are void enacted after the date of the contract:

1. Which give the debtor a longer stay of execution after judgment. Blair v. Williams, 4 Litt. (Ky.) 34; McKinney v. Carroll, 5 Mon. (Ky.) 96.

2. Which require on a sale of his property under execution an appraisement, and a bid of two-thirds the value so ascertained. Bronson v. Kinzie, 1 How. 311; McCracken v. Hayward, 2 id. 608; Sprott v. Reid, 3 Greene (Iowa), 489.

3. Which allow a period of redemption after such sale. Lapsley v. Brashears, 4 Litt. (Ky.) 47; Cargill v. Power, 1 Mich. 369; Robinson v. Howe, 13 Wis. 341.

4. Which exempt from sale under judgment for the debt a larger amount of the debtor's property than was exempt when the debt was contracted. Edwards v. Kearzey, 96 U. S. 595, and the cases there cited; Story's Commentary on the Constitution, sect. 1385.

There are numerous similar decisions showing that a change of the law which hindered or delayed the creditor in collecting his debt, though it related to the remedy or mode of procedure by which it was to be collected, impaired the obligation of the contract within the meaning of the Constitution.

Why is not the right to life and liberty as sacred as the right growing out of a contract? Why should not the contig

uous and associated words in the Constitution, relating to retroactive laws, on these two subjects, be governed by the same rule of construction? And why should a law, equally injurious to the rights of the party concerned, be under the same circumstances void in one case and not in the other?

But it is said that at the time the prisoner pleaded guilty of murder in the second degree, and at the time he procured the reversal of the judgment of the criminal court on that plea, the new constitution was in force, and he was bound to know the effect of the change in the law on his case.

We do not controvert the principle that he was bound to know and take notice of the law. But as regards the effect of the plea and the judgment on it, the Constitution of Missouri made no change.

It still remained the law of Missouri, as it is the law of every State in the Union, that so long as the judgment rendered on that plea remained in force, or after it had been executed, the defendant was liable to no further prosecution for any charge found in that indictment.

Such was the law when the crime was committed, such was the law when he pleaded guilty, such is the law now in Missouri and every where else. So that, in pleading guilty under an agreement for ten years' imprisonment, both he and the prosecuting attorney and the court all knew that the result would be an acquittal of all other charges but that of murder in the second degree.

Did he waive or annul this acquittal by prosecuting his writ of error? Certainly not by that act, for if the judgment of the lower court sentencing him to twenty-five years' imprisonment had been affirmed, no one will assert that he could still have been tried for murder in the first degree. Nor was there anything else done by him to waive this acquittal. He refused to withdraw his plea of guilty. It was stricken out by order of the court against his protest. He refused then to plead not guilty, and the court in like manner, against his protest, ordered a general plea of not guilty to be filed. He refused to go to trial on that plea, and the court forced him to trial.

The case rests, then, upon the proposition that, having an