Note by Mr. Justice Johnson, on the exposition of the phrase "ex post facto" in the Constitution of the United States.

The case in which the meaning of the phrase | Constitution was inapplicable to civil acts, is disex post facto in the Constitution came first to tinctly expressed also by Judge Iredell. "Upbe considered, was that of Calder et ux. v. Bull on the whole," says he, "though there cannot et ux. 3 Dall. 386. be a case in which an ex post facto law in crimMrs. Calder claimed as heiress to one Morri-inal matters is requisite or justifiable, yet, in son, Bull and wife claimed by devise, and the the present instance, the objection does not question was devisavit vel non. The Court of arise; because, 1. If the Act of the Legislature Probate in Connecticut, having jurisdiction of of Connecticut was a judicial act, it is not withthe question, decided against the will; but there in the words of the Constitution; and 2. Even was a right of appeal from that decision to the if it was a legislative Act, it is not within the Supreme Court of Errors, provided it was meaning of the prohibition." In the com prosecuted within eighteen months. It was mencement of the opinion he expresses himself not prosecuted within the limited time, and thus: "From the best information to be colthereby, it was contended, the decision of the lected, relative to the constitution of ConnectiCourt of Probate became final against the will, cut, it appears that the Legislature of that and ought to have quieted Calder and wife in State has been in the uniform and uninterruptpossession of the property. ed 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 exer. cise of judicial, not of legislative authority."

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.

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."

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 Judge Patterson also says: "True it is, that opinion. "The case," says he, "appears to me the awarding of new trials falls properly withto be clear of all difficulties, taken either way; in the province of the judiciary; but if the Legif the act is a judicial act, it is not touched by islature of Connecticut have been in the uninthe Federal Constitution; and if it is a legisla-terrupted exercise of this authority in certain tive 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.

682*] *That the cause did not go off on the ground that the phrase "ex post facto" in the

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 expresses himself thus: "Whether the Legislature of any State can revise and correct by law a decision of its courts of jus tice, 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 ques

tion does not go so far." And again: "It does | ed judges on the translation and construction not appear to me that the resolution or law in of the phrase "ex post facto," that some misapquestion is contrary to the charter of Connecti- prehension must have prevailed as to the parts cut or its constitution, which is said by counsel of speech of which it is composed. By apply to be composed of its charter, Acts of Assem-ing the English preposition “after," so often to bly, and usages and customs. I should think the translation of "post," in the sentence, I am that the courts of Connecticut are the proper warranted in believing that the latter word was tribunals to decide whether laws contrary to mistaken for the Latin preposition "post;" the constitution thereof are void. In the pres- whereas, is is unquestionably an abbreviation of ent case they have, both in the inferior and the adjective "postremo," as will appear by resuperior courts, decided that the resolution or ferring to the maxims of Sir Francis Bacon, and law in question was not contrary to either comparing the 8th in the table with the 8th their State or the Federal Constitution. 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 atplication. But the phrase is of such antiquity, and so generally used in its adbridged form, that its origin and derivation, as is the case with a vast proportion of every language, has been nearly forgotten.

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 Pro-tached to the phrase in its common use and apbate, 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 a power when so delegated? All the rights claimed or 683*] 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 laws, 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 dem onstrations may be drawn, millions of precedents are of no value;" Ayliffe, 5; and the English law concurs with the Roman in this, "that an extrajudicial opinion, given in or out of court, is no good precedent; for it is no 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 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., sec. 2, ch. 8, 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, [*684 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 voided by the statute.

Raymond, Justice: "This Act 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 Lord Raym. 1350-1352.

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 Wooddeson 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 I think it will not be doubted by anyone who 2 W. 641. The author is animadverting upon has considered the remarks made by the learn-bills of attainder, bills of pains and penalties,

and other laws of that class, and his words are | Massachusetts and Delaware do not contain these: "It must be admitted that in all penal the phrase; and, as if sensible of the general statutes passed ex post facto, except where the application of its meaning to all laws giving innovation mollifies the rigor of the criminal effects and consequences to past actions which code, justice wears her sternest aspect." were not attached to them when they occurred, simply give a description of the laws they meant to prohibit, without resorting to the aid of a quaint phrase which can only be explained by an extended periphrasis.

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 illustrites 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 phrase "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 a 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 685*] 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 defense, 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 applica tion to criminal cases. But of the four that have been cited, it will be found that those of

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 defense 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 restraint I have enumerated were unnecessary, and, therefore, improper; for both of them are retrospective."

Judge Patterson 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 farther. 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.

The

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. case of a Legislature declaring a void deed to be a valid deed is a striking one to [*686 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 with in 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 opinion 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.

ceding contract, etc., 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 Patterson that the arrangement of the distinct members of this section in the Constitution neces- [*687 sarily 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 provi sion 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 The following instances of its ancient gener-law. But I see not how those who think difal use will show that if acquired, it must be in ferently from me will be able to advocate it, modern times, and, therefore, the proof ought unless by an amendment of the Constitution. to be the more accessible. If the correct exposition of "the equity of a

In Sir F. Bacon's Maxims. Max. 8. Estima-statute," be "a construction made by the tio preteriti 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 præsumptionem vel causam remotam ex post facto non fulcitur.

And all the examples furnished on this maxim are cases of civil rights and liberties.

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 Instr. 24; or as another author defines it, "verborum legis directio efficiens, cum una res solummodo legis cavetur verbis, ut omnis alia in æquali genere eisdem caveatur verbis," Plowden, 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 Godolphin's View of the Admiralty, 109. cannot claim the pre-eminence of an adjudged "And the performance of something ex postcase upon this point, and if adjudged, was cerfacto within the realm, in pursuance of a pre- tainly not sustained by reason or authorities

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." 1 Sheppard's Touchstone, 68. "Where a deed good in its creation shall become void ex post facto; by razure, etc."

1 Sheppard's Touchstone, 20. "Where a deed is void ab initio, and where it doth become void by matter ex post facto."

Opinion of Mr. Justice Washington in the Circuit Court of the United States for the Eastern District of Pennsylvania in 1821, in the case of Lonsdale v. Brown.

Among the reasons assigned for a new trial is the following:

That a protest for nonacceptance of an inland bill of exchange was admitted in evidence.

The inquiry then is, whether a bill drawn in New Orleans upon a person living in Pennsylvania is an inland or a foreign bill?

To this inquiry my attention has been directed, because to this alone the arguments of the counsel were applied. The question is in a great measure new as well as difficult, and involves general principles in relation to the federal union of these States, which I consider as being highly important.

Foreign and inland, when applied to bills of exchange, are terms merely technical which we have borrowed from the English law, to which it is proper we should refer for their true meaning. The English elementary writers, in distingushing the one kind of bill from the other, make use of different expressions, all of which, however, seem to be intended to mean the same thing. Kyd, in his treaties, p. 8, describes foreign bills to be those which pass from one country to another, and inland bills such as pass between persons residing in the same country. Evans, p. 2, states a foreign bill to be one which is drawn by a creditor in one kingdom upon his debtor in another, and an inland bill as one where the drawer and the drawee reside in this kingdom. Blackstone, in his Commentaries, Vol. II. p. 407, uses the word "abroad," when speaking of a foreign bill; and "kingdom," in reference to an inland bill.

it would be very unsafe to rely upon them as authority. In Swift's Treatise on Bills, p. 291, the learned author lays it down that bills drawn in Ireland before the union, and in their colonies, on England, were treated as foreign bills. He adds, "I know not whether the question has arisen how a *bill shall be con- [*689 sidered drawn in any other State in the Union; but the practice has been to admit protests for nonacceptance and nonpayment of bills, under the official seal of notaries public, to be conclusive evidence of the fact, in like manner as in the case of foreign bills; of course they may be considered to be foreign bills." I refer to what is here stated, not as the kind of authority which I was in search of, but as the statement of a learned judge, in a highly commercial state, in relation to the practice of lawyers and merchants upon this subject. In the case of King v. Walker, 1 Black. Rep. 286, it was said by counsel, and not contradicted by the bench or bar, "that it had been questioned whether Scotch bills of exchange were inland or foreign bills, and been determined by Chief Justice Ryder, at Guildhall, that they were foreign bills."

That inland bills, prior to the statute of the 8th and 9th of W. III. c. 17, were considered as confined to England, is strongly to be inferred from the provisions of that statute, which speaks of bills drawn at any place in the Kingdom of England, Dominion of Wales, or town of Berwick upon Tweed; although Wales and Berwick had been, previous to that statute, as firmly united to England as Scotland was after If the phrase "kingdom" is to be taken in the the union. It is possible that naming Scotland strict sense, to mean the territories belonging and the town of Berwick was unnecessary, and to the king, it would follow that bills drawn in that they might have been considered as inthe West Indies upon England would be con- cluded under the general terms, Kingdom of sidered as inland; which they most unques- England. However this might have been, it tionable are not. No direct authority was pro- would seem that the Legislature which enacted duced by the counsel on either side, nor have that statute thought otherwise, or it is not I been able to meet with any, as to the partic-likely that they would have been included by ular character of bills drawn out of England, express words.

but within the king's dominions, on England. If bills drawn in England on Scotland be inIt was said by Treby, in the case of Bromwick land bills, they are of a particular character, as v. Lloyd, 2 Luter, 1585, "that bills of exchange it is perfectly clear that they are not within at first extended only to merchant strangers the provisions of the above statute, and consetrading with English merchants, and after- quently cannot be protested; nor are they enwards to inland bills between merchants trad-titled to any of the other privileges bestowed ing the one with the other here in England, by that statute upon inland bills. And if, in and afterwards to all traders, and of late, to all persons trafficing or not;" from which expressions it would seem that inland bills were confined to persons residing in England.

In the argument of this cause it was said by counsel that bills drawn in Scotland upon England since the union were treated as inland, and if any direct decision to that effect had been produced, I should have deemed it worthy of serious consideration. I have spared no pains during the vacation in searching for such a decision, but without success. Marcus, p. 2, uses some loose expressions to that effect, but

fact, they are so treated, it is inconceivable that that portion of the British dominions, and even England, should, for so long a period, have been subjected to the inconvenience of having a species of commercial paper which is neither a foreign bill nor a statutory inland bill. Unless they are considered and treated as of the former description, it is highly probable that the statutes 8th and 9th W. III. would have been extended to Scotland, as it was to Wales, and the town of Berwick.

If, in point of fact, those bills are treated as foreign (a conclusion to which my mind strong.