PDF- -the civil ex post facto clause - Wisconsin Law Review - Calder v. Bull, 3 U.S. 386 (1798)


386 3 Dall

386 1 L

Calder et Wife,

Bull et Wife

August Term,

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


The decision of one question determines (in my opinion),

I shall,

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,

set aside a decree of the court of Probate for Harford,

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,

A new hearing was had,

before the said Court of Probate,

At August 1795,

appeal was then had to the superior court at Harford,

affirmed the decree of the Court of Probate

Appeal was had to the Supreme Court of errors of Connecticut,

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 of appeal,

There was no law of that State whereby a new hearing,

before the said Court of Probate might be obtained

Calder and wife claim the premises in question,


Bull and wife claim under the will of N


The Council for the Plaintiffs in error,

that the said resolution or law

of the Legislature of Connecticut,

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,

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,

and the making regulations for the administration of justice,

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,

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,

in virtue of a subsequent resolution or law,

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 sole enquiry is,

whether this resolution or law of Connecticut,

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 Legislature,

or that it is absolute and without control

although its authority should not be expressly restrained by the Constitution,

The people of the United States erected their Constitutions,

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,

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,

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,

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,

must be determined by the nature of the power,

A few instances will suffice to explain what I mean

A law that punished a citizen for an innocent action,

was in violation of no existing law

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

it cannot be presumed that they have done it

The genius,

amount to a prohibition of such acts of legislation

and the general principles of law and reason forbid them

The Legislature may enjoin,

and establish rules of conduct for all its citizens in future cases

they may command what is right,

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,

Legislature possesses such powers,

if they had not been expressly restrained

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

These acts were legislative judgments

and an exercise of judicial power

Sometimes they respected the crime,

by declaring acts to be treason,

when committed,a 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

which the courts of justice would not admit

a at other times they inflicted punishments,

they inflicted greater punishment,

than the law annexed to the offence

c The ground for the exercise of such legislative power was this,

that the safety of the kingdom depended on the death,

of the offender: as if traitors,

the advocates of such laws were stimulated by ambition,

To prevent such,

acts of violence and injustice,

I believe,

the Federal and State Legislatures,

were prohibited from passing any bill of attainder

The case of the Earl of Strafford,

The case of Sir John Fenwick,

The banishment of Lord Clarendon,

) and of the Bishop of Atterbury,

The Coventry act,

The Constitution of the United States,

prohibits the Legislature of the United States from passing any ex post facto law

lays several restrictions on the authority of the Legislatures of the several states

'that no state shall pass any ex post facto law

It may be remembered,

that the legislatures of several of the states,





from passing any ex post facto law

The case of the Earl of Strafford,

The case of Sir John Fenwick,

The banishment of Lord Clarendon,

The banishment of Lord Clarendon,

and of the Bishop of Atterbury,

The Coventry act,

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

naked and without explanation,


that a law shall not be passed concerning,

I would ask,

that Oliver Cromwell was Protector of England

but it would be nonsense to suppose,

that the States were prohibited from making any law after either of these events,

The prohibition,

is not to pass any law concerning,

but the plain and obvious meaning and intention of the prohibition is this

that the Legislatures of the several states,

after a fact done by a subject,

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,

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,

If the prohibition against making ex post facto laws was intended to secure personal rights from being affected,

and the prohibition is sufficiently extensive for that object,

I have enumerated,

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

Every law that makes an action ,

done before the passing of the law,

and which was innocent when done,

Every law that aggravates a crime,

or makes it greater than it was,

Every law that changes the punishment,

and inflicts a greater punishment,

than the law annexed to the crime,

Every law that alters the legal rules of evidence,

than the law required at the time of the commission of the offence,

in order to convict the offender

All these,

In my opinion,

the true distinction is between ex post facto laws,

Every ex post facto law must necessarily be retrospective

but every retrospective law is not an ex post facto law: The former,

Every law that takes away,

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,

relate to a time antecedent to their commencement

They are certainly retrospective,

and literally both concerning,

But I do not consider any law ex post facto,

that mollifies the rigor of the criminal law

or change the rules of evidence,

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,

But such laws may be proper or necessary,

There is a great and apparent difference between making an UNLAWFUL act LAWFUL

and the making an innocent action criminal,

The expressions 'ex post facto laws,' are technical,

they had been in use long before the Revolution,

and had acquired an appropriate meaning,


The celebrated and judicious Sir William Blackstone,

considers an ex post facto law precisely in the same light I have done

His opinion is confirmed by his successor,


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,


in their several Constitutions,

In the declaration of rights,

by the convention of Massachusetts,

'Laws made to punish actions done before the existence of such laws,

and which have not been declared CRIMES by preceeding laws,

In the declaration of rights,

by the convention of Maryland,

'Retrospective laws punishing facts committed before the existence of such laws,

and by them only declared criminal,

' In the declaration of rights by the convention of North Carolina,

I find the same definition,

as in the Maryland constitution

In the declaration of Rights by the convention of Delaware,

the same definition was clearly intended,

by saying 'laws punishing offences (instead of actions,

or facts) committed before the existence of such laws,

I am of opinion,

contemplated by the prohibition,

and not to be affected by a subsequent law,

was some fact to be done by a Citizen,

In 2nd Lord Raymond 1352,



2 par 8,

about registering Contracts for South Sea Stock,

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,

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,

was affected and set aside by it

and in consequence of the law allowing a hearing and the decision in favor of the will,

what they would have been entitled to,

and the decision in consequence thereof,

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

I am clearly of opinion,

that it is not within the intention of the prohibition

I should not,

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,

Without giving an opinion,

whether this Court has jurisdiction to decide that any law made by Congress,

contrary to the Constitution of the United States,

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,


if this court had such jurisdiction,

that the resolution (or law) in question,

is contrary to the charter of Connecticut,

which is said by counsel to be composed of its charter,

I should think,

that the courts of Connecticut are the proper tribunals to decide,

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,

To show that the resolution was contrary to the constitution of the United States,

it was contended that the words,

have a precise and accurate meaning,

and convey but one idea to professional men,

Fearnes Con

Powell on Devises 113,

and the table to Coke's Reports (by Wilson) title ex post facto,

There is no doubt that a man may be a trespasser from the beginning,

as where an entry is given by law,

or where the law gives a distress,

I admit,

an act unlawful in the beginning may,

become lawful by matter of after fact

I also agree,

that the words 'ex post facto' have the meaning contended for,

where they are used unconnected with,

Legislative acts,

There appears to me a manifest distinction between the case where one fact relates to,

and the case where a law made after a fact done,

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,

but the judges of Great Britain always considered penal statutes,

or encreased the punishment of them,

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

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,

It was further urged,

that if the provision does not extend to prohibit the making any law after a fact,

all personal property by bequest,

will be unprotected from the legislative power of the states

rights vested may be divested at the will and pleasure of the state legislatures

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

'that private property should not be taken for PUBLIC use,

without just compensation,' was unnecessary

It seems to me,

could only arise from compact express,

and I think it the better opinion,

and of alienating or transferring,

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

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,

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,

If the will was valid,

Calder could have no right,

but if the will was set aside,

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,

took away their right to recover the

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

I am under a necessity to give a construction,

'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,

I am of opinion,

that the decree of the Supreme Court of Errors of Connecticut be affirmed,



The Constitution of Connecticut is made up of usages,

and it appears that its Legislature have,

exercised the power of granting new trials

This has been uniformly the case till the year 1762,

imparted to the superior and county courts

But the act does not remove or annihilate the pre-existing power of the Legislature,

it only communicates to other authorities a concurrence of jurisdiction,

as to the awarding of new trials

And the fact is,

exercised this power since the passing of the law in 1762

They acted in a double capacity,

and also as a court of judicature in certain exigencies

Whether the latter arose from the indefinite nature of their legislative powers,

it is not necessary to discuss

From the best information,

which I have been able to collect on this subject,

or general court of Connecticut,

and exercised all legislative,

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,

respect their decisions as flowing from a competent jurisdiction,

And therefore we may,

consider the Legislature of the state,

as having acted in their customary judicial capacity

there is an end of the question

For if the power,

comes more properly within the description of a judicial than of a legislative power

and if by usage or the Constitution,

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,

that the awarding of a new trial,

was the effect of a legislative act,

and that it is unconstitutional,

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,

which arises on the pleadings in this cause,

whether the resolution of the Legislature of Connecticut,

within the meaning of the Constitution of the United States

The words,

Judge Blackstone's description of the terms is clear and accurate

a still more unreasonable method than this,

which is called making of laws,

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,

should be afterwards converted to guilt by a subsequent law

and all punishment for not abstaining,

Here the meaning,

annexed to the terms ex post facto laws,

unquestionably refers to crimes,

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,

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,

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,

and inconsistent with the fundamental principles of a free government

The Constitution of Delaware,

article 11th of the Declaration of Rights: 'That

retrospective laws punishing offences committed before the existence of such laws,

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,

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,

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,

they are restricted in legal estimation to the creation,

The enhancement of a crime,

seems to come within the same mischief as the creation of a crime or penalty

and therefore they may be classed together

the words of the Constitution of the United States are,

'That no State shall pass any bill of attainder,

or law impairing the obligation of contracts

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,

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

I have always had a strong aversion against them

It may,

be truly observed of retrospective laws of every description,

that they neither accord with sound legislation,

nor the fundamental principles of the

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,

and are not to be understood in their literal sense



Though I concur in the general result of the opinions,

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,

that the Legislature of that State has been in the uniform,

habit of exercising a general superintending power over its courts of law,

It may,

there should exist a power to grant,

with respect to suits depending or adjudged,

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,

that one branch of the Parliament,

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

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,

I presume,

as applied to the local circumstances and municipal policy of the State,

is sanctioned by a long and uniform practice

The power,

it is an exercise of judicial,

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,

though I have not had an opportunity to reduce my opinion to writing

Executive and Judicial

Executive and Judicial departments,

which imposed no limits on the legislative power,

the consequence would inevitably be,

that whatever the legislative power chose to enact,

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,

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 authorise a man to try his own cause,

'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,

In order,

to guard against so great an evil,

it has been the policy of all the American states,

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,

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

or the Legislature of any member of the Union,

within the general scope of their constitutional power,

the Court cannot pronounce it to be void,

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,

that the Legislature (possessed of an equal right of opinion) had passed an act which,

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,

If they transgress the boundaries of that authority,

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,

whenever we are called upon as judges to determine the validity of a legislative act

the act or resolution of the Legislature of Connecticut,

cannot be regarded as an ex post facto law

the true construction of the prohibition extends to criminal,

It is only

in which the danger to be guarded against,

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,

on the principle of retaliation and proscription,

have marked all the vicissitudes of party triumph

The temptation to such abuses of power is unfortunately too alluring for human virtue

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

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,

I repeat,

to cases that merely affect the private property of citizens

Some of the most necessary and important acts of Legislation are,

that private rights must yield to public exigences

Highways are run through private grounds



are necessarilly sometimes built upon the soil owned by individuals

In such,

if the owners should refuse voluntarily to accommodate the public,

as far as the public necessities require

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,

such is the nature of all power,

such is the tendency of every human institution: and,

which is only circumscribed by the discretion of the Body,

disregarding its true objects,

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,

we must be content to repose a salutary confidence

It is our consolation that there never existed a Government,

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,

if the act of the Legislature of Connecticut was a judicial act,

it is not within the words of the Constitution

even if it was a legislative act,

it is not within the meaning of the



The case appears to me to be clear of all difficulty,

If the act is a judicial act,

it is not touched by the Federal Constitution: and,

it is maintained and justified by the ancient and uniform practice of the state of Connecticut

Judgment affirmed


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