                    U.S. Supreme Court 

          CALDER v. BULL, 3 U.S. 386 (Dall.) (1798)

                      Calder et Wife,
                            v.
                        Bull et Wife.

                     August Term, 1798

In error from the State of Connecticut. The cause was argued at the last 
term, (in the absence of THE CHIEF JUSTICE) and now the court delivered 
their opinions seriatim.

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 2nd 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 the 21st of March 1793, which decree 
disapproved of the will of Normand Morrison (the grandson) made the 21st of 
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, who, on the 27th of July 1795, approved the said 
will, and ordered it to be recorded. At August 1795, appeal was then had to 
the superior court at Harford, who at February term 1796, affirmed the 
decree of the Court of Probate. Appeal was had to the Supreme Court of 
errors of Connecticut, who, in June 1796, adjudged, that there were no 
errors. More than 18 months elapsed from the decree of the Court of Probate 
(on the 1st of March 1793) and thereby Caleb Bull and wife were barred of 
all right [3 U.S. 386, 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 Council 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 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 Harford, 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 enquiry 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 [3 U.S. 
386, 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 over-rule 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 they have 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; they may declare new crimes; and establish rules of conduct for all 
its citizens in future cases; they may command what is right, and prohibit 
what is wrong; but they 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 they had not been expressly 
restrained; would, [3 U.S. 386, 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 favour of the 
authority of the Federal Government. The prohibition against their 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;[1] 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;[2] 
at other times they inflicted punishments, where the party was not, by law, 
liable to any punishment;[3] and in other cases, they inflicted greater 
punishment, than the law annexed to the offence.[4] -- 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 Constitution of the United States, article 1, 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. [3 U.S. 386, 390]  

I shall endeavour 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 1st. king of England, was beheaded; that Oliver Cromwell 
was Protector of England; that Louis 16th, 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 favour 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 any thing 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. 2nd. 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 offence, in order to convict the 
offender. [3 U.S. 386, 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 encrease 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. 
sect. 24, "Laws made to punish actions done before the existence of such 
laws, and which have not been declared CRIMES by preceeding laws, are 
unjust, etc."

In the declaration of rights, by the convention of Maryland, art. 15th, 
"Retrospective laws punishing facts committed before the existence of such 
laws, and by them only declared criminal, are oppressive, etc." [3 U.S. 386, 
392]  

In the declaration of rights by the convention of North Carolina, art. 24th, 
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. 11th, the 
same definition was clearly intended, but inaccurately expressed; by saying 
"laws punishing offences (instead of actions, or facts) committed before the 
existence of such laws, are oppressive, etc."

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 2nd Lord Raymond 1352, Raymond, Justice, called the stat. 7 Geo. 1st. 
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 Harford (on the 21st, 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, 
[3 U.S. 386, 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." And 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 encreased 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 any thing 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. [3 U.S. 386, 
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 any one 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 the 21st. of 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 
(21st. March 1783) did not vest in or transfer any property to them. [3 U.S. 
386, 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 farther 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 have, 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 
pre-existing 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 have, in two 
instances, exercised this power since the passing of the law in 1762. They 
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, they distributed the two latter in such manner 
as they thought proper; but without parting with the general superintending 
power, or the right of exercising the same, whenever they should judge it 
expedient. But be this as it may, it is sufficient for the present to 
observe, that they have on certain occasions, excercised judicial authority 
from the commencement of their 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 have been in the 
uninterrupted exercise of this authority, in certain cases, we must, in 
such cases, respect their 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 their 
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 [3 U.S. 386, 
396]  Constitution, which, in Connecticut, are synonimous 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 11th of the Declaration of Rights: [3 
U.S. 386, 397]  

"That retrospective laws punishing offences committed before the existence 
of such laws, are oppressive and unjust, and ought not to be made."

The Constitution of Maryland, article 15th 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 24th 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 1st. 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. [3 U.S. 386, 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 endeavour 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 [3 U.S. 386, 399]  should authorise 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 their constitutional power, the Court cannot 
pronounce it to be void, merely because it is, in their 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 them, their acts are valid. 2nd. If they 
transgress the boundaries of that authority, their acts are invalid. In the 
former case, they exercise the discretion vested in them by the people, to 
whom alone they are responsible for the faithful discharge of their trust: 
but in the latter case, they violate 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 [3 U.S. 386, 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 offence.

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 exigences. Highways are run through private grounds. 
Fortifications, Light-houses, and other public edifices, are necessarilly 
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 2nd. 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 [3 U.S. 386, 401]  act, 
it is maintained and justified by the ancient and uniform practice of the 
state of Connecticut.

JUDGMENT affirmed.



1. The case of the Earl of Strafford, in 1641.

2. The case of Sir John Fenwick, in 1696.

3. The banishment of Lord Clarendon, 1669 (19 Ca. 2. c. 10.) and of the 
Bishop of Atterbury, in 1723, (9 Geo. 1. c. 17.)

4. The Coventry act, in 1670, (22 & 23 Car. 2 c. 1.) 

