
    The Cases of William Ross and William Riley.
    The provision in ¡St. 1817, c. 176, § 5, that where a person has been convicted of a crime punishable by confinement to hard labor, he shall, upon conviction of another offence punishable in like manner, be sentenced to a punishment in addition to the one prescribed by law for this last offence, is not ex post facto, when applied to a case in which the second offence was committed after the passing of the statute. Aliier, if applied where the second offence was committed before the statute was passedi
    The provision in $ 6, that after a person has been received into the state prison upon the last conviction, the additional punishment may be awarded upon an information stating the first conviction, is not unconstitutional.
    Where the additional punishment is wrongfully awarded, the prisoner cannot be relieved upon a habeas corpus, but his remedy is by writ of error.
    At the October term, 1818, of this Court, in Middlesex, the Attorney-General filed an information, stating that Ross, before the Boston Municipal Court, holden in February 1816, xvas convicted of the crime of breaking and entering the house of Hubbard and Green and committing a larceny therein, and was then and there sentenced to be punished by solitary imprisonment for five days, and afterwards by confinement to hard labor for five years : And further, that at the term of this Court holden at Lenox in September, 1818, Ross was convicted of the crime of breaking the store of Lyman Brown and committing a larceny therein, and was sentenced to be punished by solitary imprisonment for ten days and afterwards by confinement to hard labor for four years : And that Ross was then, at the time of filing the information, in the state prison, in execution of the last sentence : And further, that at the time of the finding and oí the trial of the last indictment, it was not known to the grand jury, nor to the attorney-general, that Ross had been before convicted and sentenced as above mentioned. Wherefore the attorney-general prayed that the Court would cause Ross to be brought before them, in order that the additional punishment prescribed by St. 1817, c. 176, (passed on the 23d of February 1818,) might be awarded against him, in case the allegation of his former conviction should be found to be true.
    Ross was accordingly brought before the Court, and he confessed that the facts stated in the information were true. Whereupon the Court sentenced him to be punished by solitary imprisonment for seven days, and afterwards by confinement to hard labor for four years, this last sentence to be executed upon him immediately after the expiration of the sentence on which he then stood committed.
    The warrant to execute this sentence was issued on the 20th of November, 1818.
    Ross was now brought before the Court upon a writ of habeas corpus, directed to the warden of the state prison, who returned that he detained him by authority of the warrant just mentioned.
    Though the second conviction was after the passing of the statute of 1817, it did not appear by the papers in the case at what time the second offence was committed ; it was, however, assumed by the counsel and by the Court to have been committed after the passing of the statute.
    This statute provides, in the 5th section, “ that whenever any person, who shall be convicted of any crime, before any court competent to try the same, the punishment whereof shall, by law, be confinement to hard labor for any term of years, shall have been before sentenced to a like punishment by any court, of this, or of any other of the United States, whether such convict shall have been pardoned or not, he shall be sentenced to solitary imprisonment &c., in addition to the punishment by law prescribed for the offence for which he shall be tried ” &c. The statute then, premising, that “ whereas, at the time of indictment and trial of any persons charged &c., it may not be known to the grand jury or to the attorney of the commonwealth attending them &c., whether the person, so charged, has been before convicted or not,” provides in the 6th section, that whenever it shall appear to the warden of the state prison, or the directors thereof, that any convict, received into the same &c., shall have before been sentenced &c. to confinement to hard labor for term of life or years, it shall be the duty of the said warden &c. to make representation thereof &c. to the attorney or solicitor-general ; and they or either of them shall, by information, or other legal process, cause the same to be made known to the justices of the Supreme Judicial Court &c., and the said justices shall cause the person or persons, so informed against, to be brought before them &c., and if it appear by the confession of the party, by verdict of the jury, or otherwise, according to law, that said information is true, the court shall forthwith proceed to award against such convict the residue of the punishment provided in the foregoing section ; otherwise ” &c.
    S. L. Knapp, in behalf of the prisoner,
    contended, first, that these provisions were ex post facto, and therefore void. Dash v. Van Kleeck, 7 Johns. R. 506 ; Calder v. Bull, 3 Dallas, 390, 397, 399. This statute incorporates a conviction of a crime committed before4 the passing of it, with a conviction after, and subjects the offender to additional punishment. This certainly is retrospective ; for when the crime was committed before the passing of the statute, the offender could not be apprized of the vengeance in store for him, when it should be united with another crime. In a country of laws all crimes have their penalties affixed to them, and when the penalty has been suffered, the crime ia so far expiated as to invest the criminal with an immunity from further punishment. Starkie on-Grim. Pleading, (Am. ed.) 363. The spirit of this statute is against the dictates of humanity and justice, for notwithstanding a person may have been pardoned, from a full conviction that he was innocent of the crime imputed to him, or that his offence was misjudged, or that he had been severely dealt with, the language is imperative, that he shall receive the additional^ sentence. It is provided by the constitution of the United States, “ that in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial,” and, “ in the State or district wherein the crime shall have been committed.” The information given by this statute may be filed an unlimited number of years after the former conviction, and in a State two thousand miles distant from the place where the first supposed conviction was had, and the question of the former conviction is to be tried by a jury unac quainted with the former facts, and from the great distance of place the prisoner will have no opportunity to show that the former judgment has been reversed. He may also be deprived of another right secured in the same article of the constitution, the right “ to be confronted with the witnesses against him,” that is, the witnesses to his committing the act alleged against him. The statute therefore should be construed to have a prospective operation only, so that when a man commits the first crime he shall know the consequences which it will have, connected with a second and a third. Starkie, in his treatise on Criminal Pleading, p. 273, (citing Rex v. Tandy, Leach, 970,) says that where a statute inflicts a heavier punishment on the offender who commits the offence a second time, within a limited period after the commission of the first offence, the indictment, to subject the offender to such heavier punishment, must allege the commission of the two offences in the same count.
    2. The statute is unconstitutional also, in providing that the trial and sentence arising out of former convictions may be founded on information, instead of presentment or indictment. The course of proceeding by information has never oeen used among us, except to try some misdemeanors which do not make the offender infamous. Declaration of Rights, art. 12, 13, 29 ; Amendments to Const. U. S. art. 5 ; 1 Chit, on Cr. Law, 844.
    
      Morton, attorney-general, and Davis, solicitor-general,
    contended, on the part of the commonwealth, that the statute in question was not ex post facto, nor retrospective in its operation as applied to the present case. The second of-fence was committed by the prisoner with a full knowledge, that by the commission of it he was incurring the punishment which then was annexed to a second conviction, and which was provided for in this statute.
    On the other point, they observed that the legislature would probably never permit the process by information to take the place of process by indictment, even in cases of the lowest misdemeanors, but they contended that the legislature had power to provide for a process by information, of the nature of that contained in the 6th section of the statute in question ; and they denied that the information in this case was a process by which the convict was to be held to answer for any crime or offence whatsoever. It is more in the nature of a rule to show cause why the residue of punishment, which the law has annexed to his crime, should not be awarded against him ; for which crime he had been tried and convicted, in due course of law, and in the trial of which he had been “ confronted by his witnesses,” and been convicted “by a jury of the vicinage.”
   Parker C. J.,

in giving the opinion of the Court, said in substance, that the return ought to have stated the time when the prisoner was committed under the second sentence, and the time when that sentence would expire. The prisoner is now without doubt held under the additional sentence.

There can be no question, but that if the statute of 1817, c. 176, were ex post facto, it would be the duty of the Court to hold it to be invalid. It would not be a law. It is contrary to the fundamental principles of a free government, that a law should operate retrospectively, so as to make an act criminal, which, at the time when it was done, was innocent; and if the legislature should pass such a law, the Court might perhaps decide that it was passed by mistake, even ii we had no constitution prohibiting the enactment of ex post facto laws. But there is a clause in the constitution of the United States, which is of paramount authority, to prevent any State from passing such laws; so that without resorting to fundamental principles, it would be the duty of the Court to say that the statute in question, if it is ex post facto, is not law.

The general nature of ex post facto laws is, to make acts criminal, which, at the time when they were done, were innocent, and which had not been made an offence by any previous law.

It is contended that the statute in question is of this nature. It is said, (and this is the only way in which the statute can be supposed to be ex post facto,) that the party is punished under it for his first offence. If so, the statute is undoubtedly ex post facto ; for adding a new punishment, or increasing the old one for that offence, would be ex post facto. A party ought to know, at the time of committing the offence, the whole extent of the punishment; for it may sometimes be a matter of calculation, whether he will commit the offence, considering the severity of the punishment.

But if this is an additional punishment to an offence committed after the passing of the statute, to be inflicted by the court upon coming to the knowledge of certain facts, the statute is not ex post facto. As if a law were made, that a person under a certain age committing a crime should receive a mild punishment, and that a person over that age committing the same crime should be punished severely ; and further, that if it should be found, after the mild punishment had been awarded, that the culprit was over the age prescribed, then the severe punishment should be inflicted, this would not be ex post facto; because the extent of punishment 'was declared before the offence was committed.

This statute might perhaps have been intended to operate on criminals already in prison ; and some informations were accordingly filed in cases of that sort. But this objection was made, and two judges, at nisi prius, were of opinion that the statute could not be construed to apply to such cases.

On recurring to St. 1804, c. 143, § 3, it will be found to contain a provision similar in effect to the statute in question ; and its being acquiesced in for twenty years furnishes strong evidence of its being correct in principle.

The statute alluded to provides, that if any person having been before convicted of larceny, shall afterwards commit another larceny, he shall be punished more severely than if he had not previously committed the like offence. The punishment is enhanced from the character of the culprit. So the same statute provides that if a person shall be con victed at the same term of three distinct offences, he shall receive a more severe punishment. The same objection would apply in these cases, as much as in the one under consideration, that the culprit was punished because he had committed prior offences, and that he was punished anew for those offences. But in our view the punishment is for the last offence committed, and it is rendered more severe in consequence of the situation into which the party had previously brought himself.

In regard to the objection #made to the process, this is not an information of an offence for which a trial is to be had, but of a fact, namely, that the prisoner has already been convicted of an offence ; and this fact must appear, either by his own confession, or by verdict of a jury, or otherwise according to law, before he can be sentenced to the additional punishment. Is he to be sentenced for an offence distinct from the one for which he has been tried upon an indictment ? We apprehend not; but the only question is, whether he is such a person as ought to have been sentenced, on his last conviction, to additional punishment, if the fact of a former conviction had then been known to he court. There was no need of a presentment by a grand jury, for no offence was to be inquired into. That had been dready done. An indictment is confined to the question whether an offence has been committed. Here the question was simply whether the party had been convicted of an ’fence.

It is said, that at common law both offences should be tated in the same count.* The question upon this is,

.Vi ther the legislature had not a right to prescribe a differ--'in mode ; and we think they had.

Prisoner remanded.

Another case upon this statute of 1817 came before the court in July 1825, in Suffolk. S. D. Parker presented the petition of William Riley, a convict in the state prison, who had been sentenced under the statute to an additional punishment, stating that Riley’s last offence had been committed before the statute was passed, and praying for a writ of error or a writ of habeas corpus. The Court granted a habeas corpus, and upon the return of the writ the Solicitor General suggested, that according to St. 1784, c. 72, § 1, the prisoner was not entitled to relief upon a habeas corpus, but that his proper remedy was by writ of error.

The Chief Justice said, the next day, that a majority of the Court were of opinion that the prisoner could not be relieved upon a habeas corpus, as the St. 1784, c. 72, excludes from the benefit of this writ, “ persons convict or in execution by legal process, criminal or civil.” We cannot examine, upon this summary process, whether the additional punishment was rightly awarded or not. The proper mode of relief is by a writ of error.

The prisoner accordingly sued out a writ of error immediately, and assigned for error the fact stated in his petition as before mentioned ; and the Solicitor General came into court and took notice of the writ and admitted the service thereof, and pleaded in nullo est erratum ; but being únanle to contest the fact assigned for error, the judgment or the additional punishment was reversed. 
      
       See Strong v. The State, 1 Blackford's (Ind.) R. 193. An ex post facto law is one which renders an act punishable in a manner, in which it was not punishable, when it was committed. Fletcher v. Peck, 6 Crunch, 138, (2 Peters’s Cond. R. 322;) 3 Story on the Constitution, 212, 213. A statute erecting a new tribunal, or giving jurisdiction to an existing court, to try past offences, is not ex post facto. Commonwealth v. Phillips, 11 Pick. 28. See a note by Mr. Justice Johnson, on the exposition of the phrase, “ ex post facto ” in the Constitution of the United States, in 2 Peters, 681, App. No. I.
      
     
      
       If the indictment recites the former conviction the court must award the full measure of punishment in the first instance. No information lies for the residue, after the former conviction has been thus judicially before the court. See Commonwealth v. Phillips, 11 Pick. 34.
     
      
       See Ex parte Tobias Watkins, 3 Peters, 201.
     