A resolution or law of the State of Connecticut setting aside a
decree of a court and granting a new trial to be had before the
same court is not void under the Constitution as an
ex post
facto law.
The Legislature of Connecticut, on the second Thursday of May,
1795, passed a resolution or law which set aside a decree of the
Court of Probate for Hartford County made 21 March, 1793,
disapproving a� the will of N.M. and refusing to record the will.
The act of the legislature authorized a new hearing of the case
before the court of probate, and an appeal to the superior court.
Afterwards the will of N.M. was confirmed by the court of probate
and by the Superior Court at Hartford;, and on an appeal to the
Supreme Court of Errors of Connecticut the judgment of the superior
court was confirmed. More than eighteen months had elapsed from the
first decree of the court of probate, during which the right of
appeal had been lost, and there was no law of Connecticut, before
the passing of the special act of the legislature, by which a new
hearing of the case could have been obtained.
Held that
the act of May, 1795, was not an
ex post facto law
prohibited by the Constitution of the United States.
CHASE, JUSTICE.
The decision of one question determines (in my opinion) the
present dispute. I shall therefore state from the record no more of
the case than I think necessary for the consideration of that
question only.
The Legislature of Connecticut, on the 2d Thursday of May, 1795,
passed a resolution or law which, for the reasons assigned, set
aside a decree of the Court of Probate for Harford on 21 March
1793, which decree disapproved of the will of Normand Morrison (the
grandson) made 21 August, 1779, and refused to record the said
will, and granted a new hearing by the said court of probate with
liberty of appeal therefrom in six months. A new hearing was had in
virtue of this resolution or law before the said court of probate,
which, on 27 July, 1795, approved the said will and ordered it to
be recorded. At August, 1795, appeal was then had to the Superior
Court at Hartford, which, at February term, 1796, affirmed the
decree of the court of probate. Appeal was had to the Supreme Court
of Errors of Connecticut, which, in June, 1796, adjudged that there
were no errors. More than 18 months elapsed from the decree of the
court of probate (on 1 March, 1793) and thereby Caleb Bull and wife
were barred of all right
Page 3 U. S. 387
of appeal by a statute of Connecticut. There was no law of that
state whereby a new hearing or trial before the said court of
probate might be obtained. Calder and wife claim the premises in
question, in right of his wife as heiress of N. Morrison,
physician; Bull and wife claim under the will of N. Morrison, the
grandson.
The counsel for the plaintiffs in error contend that the said
resolution or law of the Legislature of Connecticut granting a new
hearing in the above case is an
ex post facto law,
prohibited by the Constitution of the United States; that any law
of the federal government or of any of the state governments
contrary to the Constitution of the United States is void, and that
this Court possesses the power to declare such law void.
It appears to me a self-evident proposition that the several
state legislatures retain all the powers of legislation delegated
to them by the state constitutions which are not expressly taken
away by the Constitution of the United States. The establishing of
courts of justice, the appointment of judges, and the making
regulations for the administration of justice within each state
according to its laws on all subjects not entrusted to the federal
government appears to me to be the peculiar and exclusive province
and duty of the state legislatures. All the powers delegated by the
people of the United States to the federal government are defined,
and no constructive powers can be exercised by it, and all the
powers that remain in the state governments are indefinite except
only in the Constitution of Massachusetts.
The effect of the resolution or law of Connecticut above stated
is to revise a decision of one of its inferior courts, called the
Court of Probate for Hartford, and to direct a new hearing of the
case by the same court of probate, that passed the decree against
the will of Normand Morrison. By the existing law of Connecticut, a
right to recover certain property had vested in Calder and wife
(the appellants) in consequence of a decision of a court of
justice, but, in virtue of a subsequent resolution or law and the
new hearing thereof and the decision in consequence, this right to
recover certain property was divested, and the right to the
property declared to be in Bull and wife, the appellees. The sole
inquiry is whether this resolution or law of Connecticut, having
such operation, is an
ex post facto law within the
prohibition of the federal Constitution.
Whether the legislature of any of the states can revise and
correct by law a decision of any of its courts of justice, although
not prohibited by the constitution of the state, is a question of
very great importance, and not necessary now to be determined,
because the resolution or law in question does not go so far. I
cannot subscribe to the omnipotence of a state
Page 3 U. S. 388
legislature, or that it is absolute and without control,
although its authority should not be expressly restrained by the
constitution or fundamental law of the state. The people of the
United States erected their constitutions, or forms of government,
to establish justice, to promote the general welfare, to secure the
blessings of liberty, and to protect their persons and property
from violence. The purposes for which men enter into society will
determine the nature and terms of the social compact, and as they
are the foundation of the legislative power, they will decide what
are the proper objects of it. The nature and ends of legislative
power will limit the exercise of it. This fundamental principle
flows from the very nature of our free republican governments that
no man should be compelled to do what the laws do not require nor
to refrain from acts which the laws permit. There are acts which
the federal or state legislature cannot do without exceeding their
authority. There are certain vital principles in our free
republican governments which will determine and overrule an
apparent and flagrant abuse of legislative power, as to authorize
manifest injustice by positive law or to take away that security
for personal liberty or private property for the protection whereof
of the government was established. An act of the legislature (for I
cannot call it a law) contrary to the great first principles of the
social compact cannot be considered a rightful exercise of
legislative authority. The obligation of a law in governments
established on express compact and on republican principles must be
determined by the nature of the power on which it is founded.
A few instances will suffice to explain what I mean. A law that
punished a citizen for an innocent action, or in other words for an
act which when done was in violation of no existing law; a law that
destroys or impairs the lawful private contracts of citizens; a law
that makes a man a judge in his own cause, or a law that takes
property from A. and gives it to B. It is against all reason and
justice for a people to entrust a legislature with such powers, and
therefore it cannot be presumed that it has done it. The genius,
the nature, and the spirit of our state governments amount to a
prohibition of such acts of legislation, and the general principles
of law and reason forbid them. The legislature may enjoin, permit,
forbid, and punish; It may declare new crimes and establish rules
of conduct for all its citizens in future cases; it may command
what is right and prohibit what is wrong, but it cannot change
innocence into guilt or punish innocence as a crime or violate the
right of an antecedent lawful private contract or the right of
private property. To maintain that our federal or state legislature
possesses such powers if it had not been expressly restrained
would,
Page 3 U. S. 389
in my opinion, be a political heresy altogether inadmissible in
our free republican governments.
All the restrictions contained in the Constitution of the United
States on the power of the state legislatures were provided in
favor of the authority of the federal government. The prohibition
against its making any
ex post facto laws was introduced
for greater caution, and very probably arose from the knowledge
that the Parliament of Great Britain claimed and exercised a power
to pass such laws under the denomination of bills of attainder or
bills of pains and penalties, the first inflicting capital and the
other less punishment. These acts were legislative judgments and an
exercise of judicial power. Sometimes they respected the crime by
declaring acts to be treason which were not treason when committed;
at other times they violated the rules of evidence (to supply a
deficiency of legal proof) by admitting one witness when the
existing law required two, by receiving evidence without oath or
the oath of the wife against the husband, or other testimony which
the courts of justice would not admit; at other times they
inflicted punishments where the party was not by law liable to any
punishment, and in other cases they inflicted greater punishment
than the law annexed to the offense. The ground for the exercise of
such legislative power was this, that the safety of the kingdom
depended on the death or other punishment of the offender, as if
traitors, when discovered, could be so formidable or the government
so insecure! With very few exceptions, the advocates of such laws
were stimulated by ambition or personal resentment and vindictive
malice. To prevent such and similar, acts of violence and
injustice, I believe, the federal and state legislatures were
prohibited from passing any bill of attainder or any
ex post
facto law.
The case of the Earl of Strafford in 1641.
The case of Sir John Fenwick in 1696.
The banishment of Lord Clarendon, 1669, 19 Ca. 2, c. 10, and of
the Bishop of Atterbury in 1723, 9 Geo. I, c. 17.
The Coventry Act, in 1670, 22 & 23 Car. II, c. 1.
The Constitution of the United States, Article I, section 9,
prohibits the Legislature of the United States from passing any
ex post facto law, and in section 10 lays several
restrictions on the authority of the legislatures of the several
states, and among them "that no state shall pass any
ex post
facto law."
It may be remembered that the legislatures of several of the
states, to-wit, Massachusetts, Pennsylvania, Delaware, Maryland,
and North and South Carolina, are expressly prohibited, by their
state Constitutions from passing any
ex post facto
law.
Page 3 U. S. 390
I shall endeavor to show what law is to be considered an
ex
post facto law within the words and meaning of the prohibition
in the federal Constitution. The prohibition "that no state shall
pass any
ex post facto law" necessarily requires some
explanation, for naked and without explanation it is unintelligible
and means nothing. Literally, it is only that a law shall not be
passed concerning and after the fact or thing done or action
committed. I would ask, what fact, of what nature, or kind, and by
whom done? That Charles I, King of England, was beheaded, that
Oliver Cromwell was Protector of England, that Louis XVI, late King
of France, was guillotined, are all facts that have happened, but
it would be nonsense to suppose that the states were prohibited
from making any law after either of these events and with reference
thereto. The prohibition in the letter is not to pass any law
concerning and after the fact, but the plain and obvious meaning
and intention of the prohibition is this -- that the legislatures
of the several states shall not pass laws after a fact done by a
subject or citizen which shall have relation to such fact and shall
punish him for having done it. The prohibition, considered in this
light, is an additional bulwark in favor of the personal security
of the subject, to protect his person from punishment by
legislative acts having a retrospective operation. I do not think
it was inserted to secure the citizen in his private rights of
either property or contracts. The prohibitions not to make anything
but gold and silver coin a tender in payment of debts and not to
pass any law impairing the obligation of contracts were inserted to
secure private rights, but the restriction not to pass any
ex
post facto law was to secure the person of the subject from
injury or punishment in consequence of such law. If the prohibition
against making
ex post facto laws was intended to secure
personal rights from being affected, or injured by such laws, and
the prohibition is sufficiently extensive for that object, the
other restraints I have enumerated were unnecessary, and therefore
improper, for both of them are retrospective.
I will state what laws I consider
ex post facto laws
within the words and the intent of the prohibition. 1st. Every law
that makes an action done before the passing of the law and which
was innocent when done, criminal and punishes such action. 2d.
Every law that aggravates a crime, or makes it greater than it was
when committed. 3rd. Every law that changes the punishment, and
inflicts a greater punishment than the law annexed to the crime,
when 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 offense in order to
convict the offender.
Page 3 U. S. 391
All these and similar laws are manifestly unjust and oppressive.
In my opinion, the true distinction is between
ex post
facto laws and retrospective laws. Every
ex post
facto law must necessarily be retrospective, but every
retrospective law is not an
ex post facto law. The former
only are prohibited. Every law that takes away or impairs rights
vested agreeably to existing laws is retrospective, and is
generally unjust and may be oppressive, and it is a good general
rule that a law should have no retrospect; but there are cases in
which laws may justly, and for the benefit of the community and
also of individuals, relate to a time antecedent to their
commencement, as statutes of oblivion or of pardon. They are
certainly retrospective, and literally both concerning and after
the facts committed. But I do not consider any law
ex post
facto within the prohibition that mollifies the rigor of the
criminal law, but only those that create or aggravate the crime or
increase the punishment or change the rules of evidence for the
purpose of conviction. Every law that is to have an operation
before the making thereof, as to commence at an antecedent time or
to save time from the statute of limitations or to excuse acts
which were unlawful, and before committed, and the like, is
retrospective. But such laws may be proper or necessary, as the
case may be. There is a great and apparent difference between
making an unlawful act lawful and the making an innocent action
criminal and punishing it as a crime. The expressions "
ex post
facto laws" are technical; they had been in use long before
the Revolution, and had acquired an appropriate meaning, by
legislators, lawyers, and authors.
The celebrated and judicious Sir William Blackstone, in his
commentaries, considers an
ex post facto law precisely in
the same light I have done. His opinion is confirmed by his
successor, Mr. Wooddeson, and by the author of the Federalist, who
I esteem superior to both for his extensive and accurate knowledge
of the true principles of government.
I also rely greatly on the definition, or explanation of
ex
post facto laws as given by the Conventions of Massachusetts,
Maryland, and North Carolina in their several constitutions or
forms of government.
In the declaration of rights by the convention of Massachusetts,
part 1st, sec. 24, "Laws made to punish actions done before the
existence of such laws, and which have not been declared crimes by
preceding laws, are unjust. . . ."
In the declaration of rights by the convention of Maryland, art.
15, "Retrospective laws punishing facts committed before the
existence of such laws, and by them only declared criminal, are
oppressive. . . ."
Page 3 U. S. 392
In the declaration of rights by the Convention of North
Carolina, art. 24, I find the same definition, precisely in the
same words, as in the Maryland Constitution.
In the declaration of Rights by the convention of Delaware, art.
11, the same definition was clearly intended, but inaccurately
expressed by saying "laws punishing offenses [instead of actions,
or facts] committed before the existence of such laws are
oppressive. . . ."
I am of opinion that the fact contemplated by the prohibition,
and not to be affected by a subsequent law, was some fact to be
done by a citizen or subject.
In 2d Lord Raymond 1352, Raymond, Justice, called the stat. 7
Geo. I, stat. 2 par. 8, about registering contracts for South Sea
Stock, an
ex post facto law because it affected contracts
made before the statute.
In the present case there is no fact done by Bull and wife
plaintiffs in error, that is in any manner affected by the law or
resolution of Connecticut. It does not concern or relate to any act
done by them. The decree of the Court of Probate of Hartford (on 21
March) in consequence of which Calder and wife claim a right to the
property in question was given before the said law or resolution,
and in that sense was affected and set aside by it, and in
consequence of the law allowing a hearing and the decision in favor
of the will, they have lost what they would have been entitled to
if the law or resolution, and the decision in consequence thereof,
had not been made. The decree of the court of probate is the only
fact on which the law or resolution operates. In my judgment, the
case of the plaintiffs in error is not within the letter of the
prohibition, and for the reasons assigned I am clearly of opinion
that it is not within the intention of the prohibition, and if
within the intention but out of the letter, I should not,
therefore, consider myself justified to continue it within the
prohibition, and therefore that the whole was void.
It was argued by the counsel for the plaintiffs in error that
the Legislature of Connecticut had no constitutional power to make
the resolution (or law) in question granting a new hearing,
etc.
Without giving an opinion at this time whether this Court has
jurisdiction to decide that any law made by Congress contrary to
the Constitution of the United States is void, I am fully satisfied
that this Court has no jurisdiction to determine that any law of
any state legislature contrary to the Constitution of such state is
void. Further, if this Court had such jurisdiction, yet it does not
appear to me that the resolution (or law) in question, is contrary
to the charter of Connecticut or its constitution, which is said by
counsel to be composed of its charter,
Page 3 U. S. 393
acts of assembly, and usages and customs. I should think that
the courts of Connecticut are the proper tribunals to decide
whether laws contrary to the Constitution thereof are void. In the
present case they have, both in the inferior and superior courts,
determined that the resolution (or law) in question was not
contrary to either their state or the federal Constitution.
To show that the resolution was contrary to the Constitution of
the United States, it was contended that the words "
ex post
facto law" have a precise and accurate meaning and convey but
one idea to professional men, which is "by matter of after fact; by
something after the fact." Co.Litt. 241; Fearnes Con.Rem. (Old Ed)
175 and 203; Powell on Devises 113, 133-134 were cited, and the
table to Coke's Reports (by Wilson) title
ex post facto,
was referred to. There is no doubt that a man may be a trespasser
from the beginning, by matter of after fact, as where an entry is
given by law and the party abuses it, or where the law gives a
distress and the party kills or works the distress.
I admit an act unlawful in the beginning may, in some cases,
become lawful by matter of after fact.
I also agree that the words "
ex post facto" have the
meaning contended for, and no other, in the cases cited and in all
similar cases, where they are used unconnected with and without
relation to legislative acts or laws.
There appears to me a manifest distinction between the case
where one fact relates to and affects, another fact, as where an
after fact, by operation of law, makes a former fact, either lawful
or unlawful, and the case where a law made after a fact done, is to
operate on and to affect such fact. In the first case, both the
acts are done by private persons. In the second case, the first act
is done by a private person and the second act is done by the
legislature to affect the first act.
I believe that but one instance can be found in which a British
judge called a statute that affected contracts made before the
statute an
ex post facto law, but the judges of Great
Britain always considered penal statutes that created crimes or
increased the punishment of them as
ex post facto
laws.
If the term "
ex post facto law" is to be construed to
include and to prohibit the enacting any law after a fact, it will
greatly restrict the power of the federal and state legislatures,
and the consequences of such a construction may not be
foreseen.
If the prohibition to make no
ex post facto law extends
to all laws made after the fact, the two prohibitions not to make
anything but gold and silver coin a tender in payment of debts and
not to pass any law impairing the obligation of contracts were
improper and unnecessary.
Page 3 U. S. 394
It was further urged that if the provision does not extend to
prohibit the making any law after a fact, then all choses in
action, all lands by devise, all personal property by bequest, or
distribution, by elegit, by execution, by judgments, particularly
on torts, will be unprotected from the legislative power of the
states; rights vested may be divested at the will and pleasure of
the state legislatures, and therefore that the true construction
and meaning of the prohibition is that the states pass no law to
deprive a citizen of any right vested in him by existing laws.
It is not to be presumed that the federal or state legislatures
will pass laws to deprive citizens of rights vested in them by
existing laws unless for the benefit of the whole community and on
making full satisfaction. The restraint against making any
ex
post facto laws was not considered by the framers of the
Constitution as extending to prohibit the depriving a citizen even
of a vested right to property or the provision "that private
property should not be taken for public use, without just
compensation" was unnecessary.
It seems to me that the right of property, in its origin, could
only arise from compact express or implied, and I think it the
better opinion that the right as well as the mode or manner of
acquiring property and of alienating or transferring, inheriting,
or transmitting it is conferred by society, is regulated by civil
institution, and is always subject to the rules prescribed by
positive law. When I say that a right is vested in a citizen, I
mean that he has the power to do certain actions or to possess
certain things according to the law of the land.
If anyone has a right to property, such right is a perfect and
exclusive right; but no one can have such right before he has
acquired a better right to the property than any other person in
the world; a right, therefore, only to recover property cannot be
called a perfect and exclusive right. I cannot agree that a right
to property vested in Calder and wife, in consequence of the decree
(of 21 March, 1783) disapproving of the will of Morrison, the
grandson. If the will was valid, Mrs. Calder could have no right as
heiress of Morrison, the physician, but if the will was set aside,
she had an undoubted title.
The resolution (or law) alone had no manner of effect on any
right whatever vested in Calder and wife. The resolution (or law)
combined with the new hearing, and the decision in virtue of it
took away their right to recover the property in question. But when
combined, they took away no right of property vested in Calder and
wife, because the decree against the will (21 March, 1783) did not
vest in or transfer any property to them.
Page 3 U. S. 395
I am under a necessity to give a construction or explanation of
the words "
ex post facto law" because they have not any
certain meaning attached to them. But I will not go further than I
feel myself bound to do, and if I ever exercise the jurisdiction, I
will not decide any law to be void but in a very clear case.
I am of opinion that the decree of the Supreme Court of Errors
of Connecticut be affirmed with costs.
PATERSON, JUSTICE.
The Constitution of Connecticut is made up of usages, and it
appears that its legislature has from the beginning exercised the
power of granting new trials. This has been uniformly the case till
the year 1762, when this power was by a legislative act imparted to
the superior and county courts. But the act does not remove or
annihilate the preexisting power of the legislature in this
particular; it only communicates to other authorities a concurrence
of jurisdiction as to the awarding of new trials. And the fact is
that the legislature has in two instances exercised this power
since the passing of the law in 1762. It acted in a double
capacity, as a house of legislation with undefined authority and
also as a court of judicature in certain exigencies. Whether the
latter arose from the indefinite nature of their legislative powers
or in some other way it is not necessary to discuss. From the best
information, however, which I have been able to collect on this
subject, it appears that the legislature, or General Court of
Connecticut, originally possessed and exercised all legislative,
executive, and judicial authority, and that from time to time it
distributed the two latter in such manner as it thought proper, but
without parting with the general superintending power or the right
of exercising the same whenever it should judge it expedient.
But be this as it may, it is sufficient for the present to
observe that it has on certain occasions exercised judicial
authority from the commencement of its civil polity. This usage
makes up part of the Constitution of Connecticut, and we are bound
to consider it as such unless it be inconsistent with the
Constitution of the United States. True it is that the awarding of
new trials falls properly within the province of the judiciary; but
if the Legislature of Connecticut has been in the uninterrupted
exercise of this authority in certain cases, we must in such cases
respect its decisions as flowing from a competent jurisdiction or
constitutional organ. And therefore we may, in the present
instance, consider the legislature of the state as having acted in
its customary judicial capacity. If so, there is an end of the
question. For if the power, thus exercised comes more properly
within the description of a judicial than of a legislative power,
and if by usage or the
Page 3 U. S. 396
constitution, which, in Connecticut, are synonymous terms, the
legislature of that state acted in both capacities, then in the
case now before us it would be fair to consider the awarding of a
new trial as an act emanating from the judiciary side of the
department.
But as this view of the subject militates against the plaintiffs
in error, their counsel has contended for a reversal of the
judgment on the ground that the awarding of a new trial was the
effect of a legislative act, and that it is unconstitutional
because an
ex post facto law. For the sake of ascertaining
the meaning of these terms, I will consider the resolution of the
General Court of Connecticut as the exercise of a legislative, and
not a judicial, authority. The question, then, which arises on the
pleadings in this cause is whether the resolution of the
Legislature of Connecticut be an
ex post facto law within
the meaning of the Constitution of the United States. I am of
opinion that it is not. The words "
ex post facto," when
applied to a law, have a technical meaning, and in legal
phraseology refer to crimes, pains, and penalties. Judge
Blackstone's description of the terms is clear and accurate. "There
is," says he,
"a still more unreasonable method than this, which is called
making of laws,
ex post facto, when after an action,
indifferent in itself, is committed, the legislator then, for the
first time, declares it to have been a crime and inflicts a
punishment upon the person who has committed it. Here it is
impossible that the party could foresee that an action, innocent
when it was done, should be afterwards converted to guilt by a
subsequent law; he had, therefore, no cause to abstain from it, and
all punishment for not abstaining, must of consequence be cruel and
unjust."
1 Bl.Com. 46. Here the meaning annexed to the terms "
ex post
facto laws" unquestionably refers to crimes and nothing else.
The historic page abundantly evinces that the power of passing such
laws should be withheld from legislators, as it is a dangerous
instrument in the hands of bold, unprincipled, aspiring, and party
men, and has been two often used to effect the most detestable
purposes.
On inspecting such of our state constitutions as take notice of
laws made
ex post facto, we shall find that they are
understood in the same sense.
The Constitution of Massachusetts, article 24th of the
Declaration of rights.
"Laws made to punish for actions done before the existence of
such laws, and which have not been declared crimes by preceding
laws, are unjust, oppressive, and inconsistent with the fundamental
principles of a free government."
The Constitution of Delaware, article 11 of the Declaration of
Rights:
Page 3 U. S. 397
"That retrospective laws punishing offenses committed before the
existence of such laws are oppressive and unjust, and ought not to
be made."
The Constitution of Maryland, article 15 of the Declaration of
Rights:
"That retrospective laws punishing facts committed before the
existence of such laws and by them only declared criminal are
oppressive, unjust, and incompatible with liberty, wherefore no
ex post facto law ought to be made."
The Constitution of North Carolina, article 24 of the
Declaration of Rights:
"That retrospective laws punishing facts committed before the
existence of such laws and by them only declared criminal are
oppressive, unjust, and incompatible with liberty, wherefore no
ex post facto law ought to be made."
From the above passages it appears that
ex post facto
laws have an appropriate signification; they extend to penal
statutes, and no further; they are restricted in legal estimation
to the creation, and perhaps enhancement of crimes, pains, and
penalties. The enhancement of a crime or penalty seems to come
within the same mischief as the creation of a crime or penalty, and
therefore they may be classed together.
Again, the words of the Constitution of the United States are
"That no state shall pass any bill of attainder,
ex post
facto law, or law impairing the obligation of contracts."
Article I, section 10.
Where is the necessity or use of the latter words if a law
impairing the obligation of contracts be comprehended within the
terms "
ex post facto law?" It is obvious from the
specification of contracts in the last member of the clause that
the framers of the Constitution did not understand or use the words
in the sense contended for on the part of the plaintiffs in error.
They understood and used the words in their known and appropriate
signification, as referring to crimes, pains, and penalties, and no
further. The arrangement of the distinct members of this section
necessarily points to this meaning.
I had an ardent desire to have extended the provision in the
Constitution to retrospective laws in general. There is neither
policy nor safety in such laws, and therefore I have always had a
strong aversion against them. It may in general be truly observed
of retrospective laws of every description that they neither accord
with sound legislation nor the fundamental principles of the social
compact. But on full consideration I am convinced that
ex post
facto laws must be limited in the manner already expressed;
they must be taken in their technical, which is also their common
and general, acceptation, and are not to be understood in their
literal sense.
Page 3 U. S. 398
IREDELL, JUSTICE.
Though I concur in the general result of the opinions which have
been delivered, I cannot entirely adopt the reasons that are
assigned upon the occasion.
From the best information to be collected, relative to the
Constitution of Connecticut, it appears that the legislature of
that state has been in the uniform uninterrupted habit of
exercising a general superintending power over its courts of law by
granting new trials. It may indeed appear strange to some of us
that in any form there should exist a power to grant, with respect
to suits depending or adjudged, new rights of trial, new privileges
of proceeding not previously recognized and regulated by positive
institutions, but such is the established usage of Connecticut, and
it is obviously consistent with the general superintending
authority of her legislature. Nor is it altogether without some
sanction for a legislature to act as a court of justice. In
England, we know that one branch of the Parliament, the House of
Lords, not only exercises a judicial power in cases of impeachment
and for the trial of its own members, but as the court of
dernier resort, takes cognizance of many suits at law, and
in equity. And that in construction of law, the jurisdiction there
exercised is by the King in full Parliament, which shows that in
its origin, the causes were probably heard before the whole
Parliament. When Connecticut was settled, the right of empowering
her legislature to superintend the courts of justice was, I
presume, early assumed, and its expediency, as applied to the local
circumstances and municipal policy of the state, is sanctioned by a
long and uniform practice. The power, however, is judicial in its
nature, and whenever it is exercised, as in the present instance,
it is an exercise of judicial, not of legislative, authority.
But, let us for a moment suppose, that the resolution granting a
new trial was a legislative act, it will by no means follow that it
is an act affected by the constitutional prohibition that "no state
shall pass any
ex post facto law." I will endeavor to
state the general principles which influence me on this point
succinctly and clearly, though I have not had an opportunity to
reduce my opinion to writing.
If, then, a government, composed of legislative, executive and
judicial departments, were established by a constitution which
imposed no limits on the legislative power, the consequence would
inevitably be that whatever the legislative power chose to enact
would be lawfully enacted, and the judicial power could never
interpose to pronounce it void. It is true that some speculative
jurists have held that a legislative act against natural justice
must in itself be void, but I cannot think that under such a
government any court of justice would possess a power to declare it
so. Sir William Blackstone, having put the strong case of an act of
Parliament which should
Page 3 U. S. 399
authorize a man to try his own cause, explicitly adds that even
in that case,
"there is no court that has power to defeat the intent of the
legislature when couched in such evident and express words as leave
no doubt whether it was the intent of the legislature or no."
1 Bl.Com. 91.
In order, therefore, to guard against so great an evil, it has
been the policy of all the American states which have individually
framed their state constitutions since the Revolution, and of the
people of the United States when they framed the federal
Constitution, to define with precision the objects of the
legislative power and to restrain its exercise within marked and
settled boundaries. If any act of Congress or of the legislature of
a state violates those constitutional provisions, it is
unquestionably void, though I admit that as the authority to
declare it void is of a delicate and awful nature, the court will
never resort to that authority but in a clear and urgent case. If,
on the other hand, the legislature of the Union or the legislature
of any member of the Union shall pass a law within the general
scope of its constitutional power, the court cannot pronounce it to
be void merely because it is in its judgment contrary to the
principles of natural justice. The ideas of natural justice are
regulated by no fixed standard; the ablest and the purest men have
differed upon the subject, and all that the court could properly
say in such an event would be that the legislature (possessed of an
equal right of opinion) had passed an act which, in the opinion of
the judges, was inconsistent with the abstract principles of
natural justice.
There are then but two lights in which the subject can be
viewed: 1st. If the legislature pursue the authority delegated to
it, its acts are valid. 2d. If it transgresses the boundaries of
that authority, its acts are invalid. In the former case, it
exercises the discretion vested in it by the people, to whom alone
it is responsible for the faithful discharge of its trust, but in
the latter case it violates a fundamental law which must be our
guide whenever we are called upon as judges to determine the
validity of a legislative act.
Still, however, in the present instance, the act or resolution
of the Legislature of Connecticut cannot be regarded as an
ex
post facto law, for the true construction of the prohibition
extends to criminal, not to civil, cases. It is only in criminal
cases, indeed, in which the danger to be guarded against is greatly
to be apprehended. The history of every country in Europe will
furnish flagrant instances of tyranny exercised under the pretext
of penal dispensations. Rival factions, in their efforts to crush
each other, have superseded all the forms and suppressed all the
sentiments of justice, while attainders, on the principle of
retaliation and proscription, have marked all the
Page 3 U. S. 400
vicissitudes of party triumph. The temptation to such abuses of
power is unfortunately too alluring for human virtue, and therefore
the framers of the American Constitutions have wisely denied to the
respective legislatures, federal as well as state, the possession
of the power itself. They shall not pass any
ex post facto
law, or, in other words, they shall not inflict a punishment for
any act, which was innocent at the time it was committed, nor
increase the degree of punishment previously denounced for any
specific offense.
The policy, the reason and humanity, of the prohibition do not,
I repeat, extend to civil cases, to cases that merely affect the
private property of citizens. Some of the most necessary and
important acts of legislation are, on the contrary, founded upon
the principle that private rights must yield to public exigencies.
Highways are run through private grounds. Fortifications,
lighthouses, and other public edifices are necessarily sometimes
built upon the soil owned by individuals. In such and similar
cases, if the owners should refuse voluntarily to accommodate the
public, they must be constrained, as far as the public necessities
require, and justice is done by allowing them a reasonable
equivalent. Without the possession of this power, the operations of
government would often be obstructed and society itself would be
endangered. It is not sufficient to urge that the power may be
abused, for such is the nature of all power, such is the tendency
of every human institution, and it might as fairly be said that the
power of taxation, which is only circumscribed by the discretion of
the body in which it is vested, ought not to be granted, because
the legislature, disregarding its true objects, might, for
visionary and useless projects, impose a tax to the amount of
nineteen shillings in the pound. We must be content to limit power
where we can, and where we cannot, consistently with its use, we
must be content to repose a salutary confidence. It is our
consolation that there never existed a government in ancient or
modern times more free from danger in this respect than the
governments of America.
Upon the whole, though there cannot be a case in which an
ex
post facto law in criminal matters is requisite or justifiable
(for providence never can intend to promote the prosperity of any
country by bad means), yet in the present instance, the objection
does not arise, because, 1st, if the act of the Legislature of
Connecticut was a judicial act, it is not within the words of the
Constitution, and 2d, even if it was a legislative act, it is not
within the meaning of the prohibition.
CUSHING, JUSTICE.
The case appears to me to be clear of all difficulty, taken
either way. If the act is a judicial act, it is not touched by the
federal Constitution, and if it is a legislative
Page 3 U. S. 401
act, it is maintained and justified by the ancient and uniform
practice of the State of Connecticut.
Judgment affirmed.
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