Article 1, Section 9, Clause 3
William Johnson, Note to Satterlee v. Mathewson2 Pet. 380, 416n 1829
The case in which the meaning of the phrase "ex post facto," in the constitution came first to be considered, was that of Calder and wife v. Bull and wife, 3 Dall. 386. Mrs. Calder claimed as heiress to one Morrison, Bull and wife claimed by devise, and the question was devisavit vel non. The court of probate in Connecticut, having jurisdiction of the question, decided against the will; but there was a right to appeal from that decision to the supreme court of errors, provided it was prosecuted within eighteen months. It was not prosecuted within the limited time, and thereby it was contended, the decision of the court of probate became final against the will, and ought to have quieted Calder and wife in possession of the property. But Bull and wife made application to the legislature of Connecticut for relief, and obtained from them a resolution or law, setting aside the decree of the court of probate, and granting Bull a new hearing in that court. On that new hearing, the decision was in favor of the will; and Calder and wife were, of course, evicted of an interest, which they contended had been finally affirmed in them by the previous decision, and the effect of the limitation barring the right of appeal. The argument of counsel is not reported; but it is obvious, from the opinions ascribed to the judges, that, in behalf of Calder, it was contended, that the act of the Connecticut legislature was an ex post facto law, in the sense of the constitution, and void; and in behalf of Bull, that the legislature had exercised a power, constitutional in Connecticut, and therefore, not ex post facto, in the sense of the constitution. This appears distinctly the ground upon which Cushing, the presiding judge, places his opinion: "The case," he says "appears to me to be clear of all difficulties, taken either way; if the act is a judicial act, it is not touched by the federal constitution; and if it is a legislative act, it is maintained and justified by the ancient and uniform practice of the State of Connecticut." That state, it must be observed, had at that time no written constitution; and as in Rhode Island at the present day, what it could constitutionally do, could only be decided by what it did habitually. The decision, therefore, rendered at this term, in the case of Wilkinson v. Leland et al., was precisely that in the case of Calder v. Bull.
That the cause did not go off on the ground, that the phrase "ex post facto," in the constitution, was inapplicable to civil acts, is distinctly expressed also by Judge Iredell. "Upon the whole," says he, "though there cannot be a case in which an ex post facto law in criminal matters is requisite, or justifiable yet in the present instance, the objection does not arise; because, 1. If the act of the legislature of Connecticut was a judicial act, it is not within the words of the constitution; and 2. Even if it was a legislative act, it is not within the meaning of the prohibition." In the commencement of the opinion, he expresses himself thus: "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 and uninterrupted exercise of a general superintending power over its courts of law, by granting new trials." And again, "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 legislative authority." Here, then, is a positive opinion as to the judicial character of this transaction, and it shows, that his vote upon the decision rendered, must rest upon the first of the alternatives stated in his conclusion. And the mode in which he enters upon the examination of the second alternative, shows that he attaches no importance to it. He enters upon it hypothetically, commencing with the words "But let us for a moment suppose." Judge Paterson also says, "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." Judge Chase express himself thus: "Whether the legislature of any state can revise and correct by law, a decision of its courts of justice, although not prohibited by the constitution of the state, is a question of very great importance, and not necessary to be now considered; because the resolution or law in question does not go so far." And again, "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, 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, decided, that the resolution or law in question was not contrary to either the state or the federal constitution."
Thus it appears, that all the judges who sat in the case of Calder v. Bull, concurred in the opinion, that the decision of the court of probate, and the lapse of the time given for an appeal to their court of errors, were not final upon the rights of the parties; that there still existed in the legislature, a controlling and revising power over the controversy; and that this was duly exercised in the reversal of the first decree of the court of probate. And who can doubt, that the legislature of a state may be vested by the state constitution with such a power? And what invasion of private right can result from the exercise of such power, when so delegated? All the rights claimed or exercised in a state, which thus modify the administration of justice, are held and exercised under the restrictions which such a constitution imposes. How, then, could the question, whether the phrase ex post facto was confined to criminal law, arise in this cause? the law complained of was equally free from that characteristic; though the phrase be held to extend to laws of a civil character.
I then have a right to deny that the construction intimated by three of the judges in the case of Calder v. Bull, is entitled to the weight of an adjudication. Nor is it immaterial, to observe, that an adjudication upon a fundamental law, ought never to be irrevocably settled by a decision that is not necessary and explicit. It is laid down indeed, as a principle of the Roman civil law, "that in cases which depend upon fundamental principles, from which demonstrations may be drawn, millions of precedents are of no value." Ayliffe, 5. And the English law concurs with the Roman in this, "that an extra-judicial opinion, given in or out of court, is no good precedent for it is not more than the prolatum, or saying of him who gives it." "An opinion given in court, if not necessary to the judgment given of record, is, according to Vaughan, no judicial opinion at all, and consequently, no precedent; for the same judgment might as well have been given, if no such, or a contrary, opinion had been brought; nor is such an opinion any more than a gratis-dictum." Ayliffe, 9.
That the phrase "ex post facto" is not confined, in its ordinary signification, to criminal law, or criminal statutes, admits of positive demonstration; and with great respect for my learned predecessors, but a due regard to what I owe to the discharge of my own duties, I will endeavor to show that they have not proved the contrary. I think it will not be doubted by any one, who has considered the remarks made by the learned judges on the translation and construction of the phrase ex post facto, that some misapprehension must have prevailed, as to the parts of speech of which it is composed. By applying the English preposition after, so often, to the translation of post, in the sentence, I am warranted in believing, that the latter word was mistaken for the Latin preposition post; whereas, it is unquestionably an abbreviation of the adjective postremo, as will appear by reference to the maxims of Sir Francis Bacon. and comparing the 8th in the table, with the 8th maxim in the text; in the latter of which post is extended to postremo; and such must be the fact, to comport with the sense attached to the phrase in its common use and application. But the phrase is of such antiquity, and so generally used in its abridged form, that its origin and derivation, as is the case with a vast proportion of every language, has been nearly forgotten. I am indebted to a friend for a quotation from the Pandects, in which it appears, even in Justinian's time, to have been used as a quaint phrase; just as a ca. sa., or writ in the pone, or quo minus, is used at the present day. (L. 34, tit. 4, law 15.) The antiquity of its use among the English jurists may be fairly inferred, from its being ingrafted into the maxims of the law constituting its fundamental rules; as we see, in Elements of the Com. Law, by Lord Verulam, Max. 8 and 21.
But my present purpose is, to fix its signification and legal import, and this is best done by reference to an adjudged case. At the time of the great speculation in England in south-sea stock, it was thought necessary, for the peace of the nation, to pass the stat. 7 Geo. I., c. 8, § 2, which required a registry of contracts for south-sea stock, to be made by the 29th of September 1721, and if not so registered, they were declared void. W. bought of M., stock to a large amount, for which an assignment was duly executed, dated 19th August 1720 (which was prior to the passing of the act); but exception was taken, on the ground of defect in the form of registration, on which the defendant insisted that the contract was avoided by the statute. Raymond, Justice:--"This acts being ex post facto, the construction of the words ought not to be strained, in order to defeat a contract, to the benefit whereof the party was well entitled, at the time the contract was made." Wilkinson v. Meyer, 2 Ld. Raym. 1350--52. This case is authority to three points: 1st, To show that the phrase is used in a sense equally applicable to contracts and to crimes. 2d, That it was applied to statutes affecting contracts. And 3d, That as late as Lord Raymond's time, it had not received a practical or technical construction, which confined it to criminal cases.
The learned judges, in the case of Calder v. Bull, rely on Blackstone and Woddeson for a contrary doctrine; but on examining these writers, the latter will be found to be anything but an authority to their purpose; and that in the former, there is nothing furnished that can be held conclusive on the subject. The passage in Wooddeson will be found in vol. 2, p. 641. The author is animadverting upon bills of attainder, bills of pains and penalties, and other laws of that class; and his words are these: "It must be admitted, that in all penal statutes, passed ex post facto, except where the innovation mollifies the rigor of the criminal code, justice wears her sternest aspect." Penal statutes, passed ex post facto; but why say penal statutes, and not simply statutes passed ex post facto, if the use of the phrase was exclusively limited to penal statutes? And with what propriety could the phrase be applied to statutes mollifying the rigor of the criminal law, if it had the fixed restriction, since attached to it, which they propose to assign to it, in their reasoning upon that cause?
Judge Blackstone is by no means conclusive, if any authority at all upon the subject. Arch. & Christ. Black. 41, old edit. 46. He is commenting upon the definition of a law generally; and that member of the definition which designates it as "a rule prescribed." And when illustrating the nature and necessity of this attribute of a law, he illustrates it by referring to the laws of Caligula, written in small characters, and hung up out of view, to ensnare the people; and then remarks, "There is still a more unreasonable method than this, which is called making of laws ex post facto; where, after an action, indifferent in itself, has been 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."
This is precisely what Wooddeson calls a penal statute, passed ex post facto; but it by no means follows, that because a penal statute may be ex post facto, that none other can be affected with that character; and certainly, his commentator, Mr. Christian, in his note upon the phase "ex post facto," seems to have had no idea of this restrictive application of it. His words are: "an ex post facto law may be either of a public or private nature; and when we speak generally of an ex post facto law, we, perhaps, always, mean a law which comprehends the whole community. The Roman privilegia seem to correspond to our bills of attainder, and bills of pains and penalties, which, though in their nature they are ex post facto laws, yet are seldom called so." Here he speaks of a law, not of a penal law, which comprehends the whole community; and of certain penal laws, in their nature ex post facto; that is, of the description of ex post facto laws; which they certainly are, without being exclusively so.
The "Federalist" also is referred to, for an exposition of the phrase. The passage is found in the 44th number, and is from the pen of Mr. Madison. But the writer has made no attempt at giving a distinct exposition of the phrase, as used in the constitution. Bills of attainder, ex post facto laws, and laws impairing the obligation of contracts, are all considered together; and regarded, as they really are, as forming together "a bulwark, in favor of personal security and private rights;" but on the separate office of each, in the work of defence, he makes no remark, and attempts no definition or distribution.
Some of the state constitutions are also referred to, as furnishing an exposition of the words ex post facto, which confine its application to criminal cases. But of the four that have been cited, it will be found, that those of Massachusetts and Delaware do not contain the phrase; and, as if sensible of the general application of its meaning to all laws, giving effects and consequences to past actions, which were not attached to them when they occurred, simply give a description of the laws they mean to prohibit, without resorting to the aid of a quaint phrase which can only be explained by an extended periphrasis. The constitutions of Maryland and North Carolina would seem to have applied the phrase in the restricted sense. And yet there is good reason to think, that in the application of those articles to questions arising in their courts of justice; before the provision in the constitution of the United States superseded the necessity of resorting to their own constitutions in the defence of private rights, when invaded by ex post facto laws; a general application of the phrase, as well to civil as to criminal cases, would have been justified by the generality of the prohibition to pass ex post facto laws, as used in both those constitutions. But if otherwise, why should the erroneous use of language in two instances only, control the meaning of it everywhere? or anywhere, but in the construction of the particular instrument in which it is so used?
It is obvious, in the case of Calder v. Bull, that the great reason which influenced the opinion of the three judges who gave an exposition of the phrase "ex post facto," was, that they considered its application to civil cases as unnecessary, and fully supplied by the prohibition to pass laws impairing the obligation of contracts. Judge Chase says, "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." Judge Paterson says, "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." Judge Iredell considers the extended construction of the phrase as unnecessary for another reason. "The policy, the reason and humanity of the prohibition do not, I repeat," says the judge, "extend to civil cases, to cases that merely affect the private property of citizens."
On these opinions, a variety of remarks may be made. And the first is, that the learned judges could not then have foreseen the great variety of forms in which the violations of private right have since been presented to this court. The case of a legislature declaring a void deed to be a valid deed, is a striking one to show, both that the prohibition to pass laws violating the obligation of contracts, is not a sufficient protection to private rights; and that the policy and reason of the prohibition to pass ex post facto laws, does extend to civil as well as criminal cases. This court has had more than once to toil up hill, in order to bring within the restriction on the states to pass laws violating the obligation of contracts, the most obvious cases to which the constitution was intended to extend its protection; a difficulty, which it is obvious, might often be avoided, by giving to the phrase ex post facto its original and natural application. It is then due to the venerable men whose opinions I am combating, to believe, that had this and the many other similar cases which may occur and will occur, been presented to their minds, they would have seen that, in civil cases, the restriction not to pass ex post facto laws could not be limited to criminal statutes, without restricting the protection of the constitution to bounds that would import a positive absurdity.
2. High and respectable as is the authority of these distinguished men, it is not unpermitted to say, that when they speak of the known and settled and technical meaning of words, they submit their opinions to that arbiter of truth, to whose jurisdiction all men have an equal right to appeal. I think, I have gone far to show, that their quotations do not fix the meaning of the phrase under consideration, with immovable firmness. Maryland first used it in this restricted sense, and North Carolina copied from Maryland; and if the evidence of contemporaries may be relied on, Mr. Chase was one of the committee who reported the constitution of Maryland; and thus stands the authority for the restricted use. Very many instances of the more general use of the phrase may be added to the authority of Lord Raymond, some of which I will mention. Certainly, in Lord Raymond's time, it had not received this technical established signification; and how it can be proved to have acquired it since, is not very easy to perceive.
The following instances of its ancient general use will show, that if acquired, it must be in modern times, and therefore the proof ought to be the more accessible.
In Sir F. Bacon's Maxims, Max. 8: Estimatio pretereti delicti ex post facto nunquam crescit. And all the cases given to illustrate the maxim, are cases at common law, such as "slander of one who after becomes noble; this is not scandalum magnatum." Thus showing that it has no peculiar connection with statute law. Max. 21. Clausula vel dispositio inutilis per praesumptionem vel causam remotam ex post facto non fulcitur. And all the examples furnished on this maxim, are cases of civil rights and liberties.
1 Sheppard's Touchstone, 63. "It is a rule, that if a contract be not in its inception usurious, no matter ex post facto shall make it so." Ibid. 68. "Where a deed good in its creation shall become void ex post facto; by razure, &c." Ibid. 20. "Where a deed is void ab initio, and where it doth become void by matter ex post facto."
Godolphin's View of the Admiralty, 109. "And the performance of something ex post facto within the realm, in pursuance of a preceding contract, &c., doth not make it cease to be maritime." The same, in his Law of Executors, table D. "How a devise originally void may become good ex post facto."
Bulstrode, 17, 5, B, a, p. 416. "Where the first contract is not usurious, it shall never be made so by matter ex post facto."
3. It is a remark of Judge Paterson, that the arrangement of the distinct members of this section in the constitution, necessarily points to the restrictive meaning which he assigns to this phrase. But with all deference, I must contend, that if anything is to be deduced from the arrangement of the three instances of restriction, the argument will be against him. For by placing "ex post facto laws" between bills of attainder, which are exclusively criminal, and laws violating the obligation of contracts which are exclusively civil, it would rather seem that ex post facto laws partook of both characters, was common to both purposes.
4. There is one view in which the consistency and comprehensiveness of the views of the learned judges, whose opinions I have ventured to examine, may be well defended. And it presents an alternative to which I have no doubt that this court will sooner or later be compelled to resort, in order to maintain its own consistency, and yet give to the constitution the scope which is necessary to attain its general purposes in this section, and to rescue it from the imputation of absurdity, in guarding against the minor evil, and making no provision against a greater; in leaving uncontrolled the exercise of a power to create the contracts of parties, while they restrict the exercise of a power to violate those contracts, when made by parties themselves. That is, to bring cases similar to the present within what the law terms the equity of a statute. According to my construction, this is unnecessary, and I shall never be compelled to resort to this application of a principle so exceptionable in its influence upon a fundamental law. But I see not how those who think differently from me will be able to advocate it, unless by an amendment of the constitution.
If the correct exposition of "the equity of a statute," be "a construction made by the judges, that cases out of the letter of the statute, which are within the same mischief, or cause of making the statute, shall be within the remedy thereby given," 1 Inst. 24; or as another author defines it, "verborum legis directio effeciem cum una res solumnodo legis cavetur verbis, ut omnis alia in aequali genere eisdem caveatur verbis," Plowd. 407; there could be no objection to bringing the case of making a void deed valid within the provision of the constitution against violating the obligation of contracts, if we were construing a statute. And then, the protection which is lost to the constitution by the restricted construction of "ex post facto laws" would be, I believe, wholly restored. But whether this latitude of construction can be safely and on principle applied to the constitution, is with me a serious doubt; and hence I have felt an interest in endeavoring to avoid the necessity of resorting to it, by showing that the case of Calder v. Bull cannot claim the pre-eminence of an adjudged case upon this point, and if adjudged, was certainly not sustained by reason of authorities.
The Founders' Constitution
Volume 3, Article 1, Section 9, Clause 3, Document 14
The University of Chicago Press
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