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Calder v Bull

The backbone case behind ex post facto laws

August 1798:

Calder v Bull
3 U.S. 386

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 to the consideration of that question only.

The Legislature of Connecticut, on the 2d 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 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 [p387] 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, a 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 Constitution of the United States; that any law of the Federal government, or 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.

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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.

  • 2d. Every law that aggravates a crime, 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. [p391]

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 aggregate, the crime; or encrease the punishment, or change the rules of evidence, for the purpose of conviction.

Every law that is to have an operation before the making thereof, as to commence at an antecedent time; or to save time from the statute of limitations; or to excuse acts which were unlawful, and before committed, and the like; is retrospective. But such laws may be proper or necessary, as the case may be. There is a great and apparent difference between making an unlawful act lawful; and the making an innocent action criminal, and punishing it as a crime. The expressions "ex post facto laws," are technical, they had been in use long before the Revolution, and had acquired an appropriate meaning, by Legislators, Lawyers, and Authors.

The celebrated and judicious Sir William Blackstone, in his commentaries, considers an ex post facto law precisely in the same light I have done. His opinion is confirmed by his successor, Mr. Wooddeson; and by the author of the Federalist, who I esteem superior to both, for his extensive and accurate knowledge of the true principles of Government.

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