CHAPTER XV.

PROTECTION TO PERSONS ACCUSED OF CRIME.

CALDER v. BULL.

3 Dallas, 386; 1 Curtis, 269. 1798.

CHASE, J. 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 second Thursday of May, 1795, passed a resolution or law, which, for the reasons assigned, set aside a decree of the Court of Probate for Hartford, 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 Hartford, 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 eighteen 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, by a statute of Connecticut. There was no law of that State whereby a new hearing, or trial, before the said Court of Probate might be obtained. Calder and wife claim the premises in question, in right of his wife, as heiress of N. Morrison, physician; Bull and wife claim under the will of N. Morrison, the grandson.

The counsel for the plaintiffs in error contend that the said resolution or law of the legislature of Connecticut, granting a new hearing in the above case, is an ex post facto law, prohibited by the Constitu tion 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.

[The question whether the legislature of a State can revise and correct by law a decision of a court of justice is also considered. this question see Taylor v. Place, 4 R. I. 324, supra, p. 79.]

1

On

All the restrictions contained in the Constitution of the United States on the power of the State legislatures, were provided in favor of the authority of the Federal government. The prohibition against 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; and in other cases they inflicted greater punishment than the law annexed to the offence. 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, art. 1, s. 9, prohibits the Legislature of the United States from passing any ex post facto law; and in sec. 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.

I shall endeavor to show what law is to be considered an ex post facto law, within the words and meaning of the prohibition in the Federal Constitution. The prohibition, "that no State shall pass

1 The case of the Earl of Strafford, in 1640.

2 The case of Sir John Fenwick, in 1696.

3 The banishment of Lord Clarendon, 1667, 19 Car. II. c. 10; and of Bishop Atterbury, in 1723, 9 Geo. I. c. 17.

4 The Conventry Act, in 1670, 22 & 23 Car. II. c. 1.

any ex post facto law," necessarily requires some explanation ; for naked and without explanation it is unintelligible, and means nothing. Literally, it is only that a law shall not be passed concerning, and after the fact, or thing done, or action committed. I would ask, what fact; of what nature or kind; and by whom done? That Charles I., king of England, was beheaded; that Oliver Cromwell was protector of England; that Louis XVI., late king of France, was guillotined, - all facts that have happened, but it would be nonsense to suppose that the States were prohibited from making any law after either of these events, and with reference thereto. The prohibition in the letter is not to pass any law concerning and after the fact, but the plain and obvious meaning and intention of the prohibition is this, that the legislatures of the several States shall not pass laws after a fact done by a subject, or citizen, which shall have relation to such fact, and shall punish him for having done it. The prohibition, considered in this light, is an additional bulwark in favor of the personal security of the subject, to protect his person from punishment by legislative acts, having a retrospective operation. I do not think it was inserted to secure the citizen in his private rights, of either property or contracts. The prohibitions not to make anything but gold and silver coin a tender in payment of debts, and not to pass any law impairing the obligation of contracts, were inserted to secure private rights; but the restriction not to pass any ex post facto law, was to secure the person of the subject from injury or punishment, in consequence of such law. If the prohibition against making ex post facto laws was intended to secure personal rights from being affected or injured by such laws, and the prohibition is sufficiently extensive for that object, the other restraints I have enumerated were unnecessary, and therefore improper, for both of them are retrospective.

I will state what laws I consider ex post facto laws, within the words and the intent of the prohibition. 1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 21. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. 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. All these and similar laws are manifestly unjust and oppressive. In my opinion, the true distinction is between ex post facto laws and retrospective laws. Every ex post facto law must necessarily be retrospective, but every retrospective law is not an ex post facto law: the former only are prohibited. Every law that takes away or impairs rights vested, agreeably to existing laws, is retrospective, and is generally unjust, and may be oppressive; and it is a good general

rule that a law should have no retrospect; but there are cases in which laws may justly, and for the benefit of the community, and also of individuals, relate to a time antecedent to their commencement; as statutes of oblivion, or of pardon. They are certainly retrospective, and literally both concerning and after the facts committed. But I do not consider any law ex post facto, within the prohibition, that mollifies the rigor of the criminal law; but only those that create, or aggravate, the crime, or increase the punishment, or change the rules of evidence, for the purpose of conviction. Every law that is to have an operation before the making thereof, as to commence at an antecedent time, or to save time from the statute of limitations, or to excuse acts which were unlawful, and before committed, and the like, is retrospective. But such laws may be proper or necessary, as the case may be. There is a great and apparent difference between making an unlawful act lawful, and the making an innocent action criminal, and punishing it as a crime. The expressions "ex post facto laws," are technical, they had been in use long before the Revolution, and had acquired an appropriate meaning, by legislators, lawyers, and authors. The celebrated and judicious Sir William Blackstone, in his Commentaries, considers an ex post facto law precisely in the same light I have done. His opinion is confirmed by his successor, Mr. Wooddeson, and by the author of the Federalist, whom I esteem superior to both, for his extensive and accurate knowledge of the true principles of government.

[The other judges of the court delivered opinions and the decree of the Supreme Court of Errors of Connecticut was affirmed, all concurring.]1

1 In KRING v. MISSOURI, 107 U. S. 221 (1882), it appeared that plaintiff in error had been put on trial under an indictment charging him with murder in the first degree, but had pleaded guilty of murder in the second degree, and had thereupon been sentenced for that offence. Subsequently, on appeal, he secured a reversal of this sentence, and the case was remanded to the lower court for further proceedings. Thereupon he refused to withdraw his plea of murder in the second degree, and refused to plead not guilty to the indictment for murder in the first degree; but the court set aside his plea of guilty, interposed for him a plea of not guilty, and he was tried and convicted for murder in the first degree. It appeared that by the law recog nized in Missouri at the time the crime was committed, a conviction for the second degree under a charge of the first degree of the offence, amounted to an acquittal of so much of the crime charged as would constitute murder in the first degree, but subsequently, and before the last trial, it had been provided by an amendment to the constitution of the State that after the reversal of a conviction for a lower degree defendant could be again put on trial for the original charge. Kring insisted that, as to the offence charged as committed before this change in the constitution, such change was ex post facto. MR. JUSTICE MILLER, delivering the opinion of the court, quoted from the opinion in Calder v. Bull, which is given above, and continued as follows:"But it is not to be supposed that the opinion in that case undertook to define, by way of exclusion, all the cases to which the constitutional provision would be applicable.

Accordingly, in a subsequent case tried before Mr. Justice Washington, he said, in his charge to the jury, that an ex post facto law is one which, in its operation, makes that criminal which was not so at the time the action was performed; or which

increases the punishment, or, in short, which, in relation to the offence or its consequences, alters the situation of a party to his disadvantage.' United States v. Hall, 2 Wash. 366. "He adds, by way of application to that case, which was for a violation of the embargo laws: If the enforcing law applies to this case, there can be no doubt that, so far as it takes away or impairs the defence which the law had provided the defendant at the time when the condition of this bond became forfeited, it is er post facto and inoperative.'

"This case was carried to the Supreme Court and the judgment affirmed. 6 Cranch, 171.

"The new constitution of Missouri does take away what, by the law of the State when the crime was committed, was a good defence to the charge of murder in the first degree.

"In the subsequent cases of Cummings v. The State of Missouri and Er parte Garland, 4 Wall. 277, 333, this court held that a law which excluded a minister of the gospel from the exercise of his clerical function, and a lawyer from practice in the courts, unless each would take an oath that they had not engaged in or encouraged armed hostilities against the government of the United States, was an er post facto law, because it punished, in a manner not before punished by law, offences committed before its passage, and because it instituted a new rule of evidence in aid of convietion. This court was divided in that case, the minority being of opinion that the act in question was not a crimes act, and inflicted no punishment, in the judicial sense, for any past crime, but they did not controvert the proposition that if the act had that effect it was an ex post facto law.

"In these cases we have illustrations of the liberal construction which this court, and Mr. Justice Washington in the Circuit Court, gave to the words ex post facto law, -a construction in manifest accord with the purpose of the constitutional convention to protect the individual rights of life and liberty against hostile retrospective legislation.

"Nearly all the States of the Union have similar provisions in their constitutions, and whether they have or not, they all recognize the obligatory force of this clause of the Federal Constitution on their legislation."

The opinion of the Supreme Court of Missouri, from which the case was brought to this court by writ of error, is considered at length, and to the position taken in that court that the change made in the constitution of Missouri related to procedure only, and therefore did not constitute an ex post facto law within the prohibition of the Federal Constitution, it was decided that a change in procedure might alter the situation of the party to his disadvantage, and might therefore be an ex post facto law, and unconstitutional. The decision of the Supreme Court of Missouri was therefore reversed.

MR. JUSTICE MATHEWS delivered a dissenting opinion, in which MR. CHIEF JUsTICE WAITE, MR. JUSTICE BRADLEY, and MR. JUSTICE GRAY concurred.

In THOMPSON v. UтAH, 170 U. S. 343 (1898), which, on another point, is given supra, on p. 831, MR. JUSTICE HARLAN, delivering the opinion of the court, discusses the question as to what is an ex post facto law, and uses the following language, which is not included in the portion of the opinion already given:

'It is not necessary to review the numerous cases in which the courts have determined whether particular statutes come within the constitutional prohibition of ex post facto laws. It is sufficient now to say that a statute belongs to that class which by its necessary operation and 'in its relation to the offence, or its consequences, alters the situation of the accused to his disadvantage.' United States v. Hall, 2 Wash. C. C. 366; Kring v. Missouri, 107 U. S. 221, 228; Medley, petitioner, 134 U. S. 160, 171. Of course, a statute is not of that class unless it materially impairs the right of the accused to have the question of his guilt determined according to the law as it was when the offence was committed. And, therefore, it is well settled that the accused is not entitled of right to be tried in the exact mode, in all respects, that may be prescribed for the trial of criminal cases at the time of the commission of the offence charged against him. Cooley in his Treatise on Constitutional Limitations, c. 9. 6th ed. p. 326, after referring to some of the adjudged cases relating to ex post facto laws,