
    
      August Term, 1798.
    Calder et Wife, versus Bull et Wife.
    IN error from the State of Connecticut. The caufe was argued at the laft term, (in the abfence of the chief justice) and nqw the court delivered their opinions feriatim. .
    
    Chase, Juftice. The decilion of one queftion determines (in my opinion), thé prefent difpute. I fhall, therefore, ftate from the record no more of the cafe, than I think neceftary for theconfideration of that queftion only.
    The Legiflature of Connecticut, on the 2d Thurfday of May 1795, palled a refolution or law, which, for the reafons,affign-ed, let afide a decree of the court of Probate for Harford, on the2ill of March 1793, which decree dfapproved of the will of Nor mand Mor rifan (the grandfon) made the 21ft of Augujl 1779, and refufed to record the faid will; and granted a new hearing by the faidCourt of Probate, with libertyof appeal therefrom, in ÍÍK months. A new hearing was had, in virtue of this, refolution, or law, before the faid Court of Probate, who, on the 27th ,of July 1795, approved the faid will, and ordered it to be recorded. At August 1795, appeal was then had to the fuperior courtat Harford, who -AtFebruary 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 tv ere no errors. More than 18 months elapfed from the decree of the Court of Probate (on the ill of March. 1793) and thereby Caleb Bull and wife were barred of all right of appeal, by a ftatuteof ConneSiicut. There was no law of that State whereby a new hearing, or trial, before the faid Court of Probate might be obtained. Calder and wife claim the pre-mifes in queftion, in right of his wife, as heirefs of N. Morri-fon, phyfician; Bull and wife claim under the will of N. Mor-rifon, the grandfon.
    The' Council for the Plaintiffs in error,
    contend, that the faid refolution or law of the Legijlature of ConneSiicut, granting a new hearings in the abovexafe, is an ex pc:t faSto law, 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, is void; and that this court pofl'efies the power to declarefuch law void.
    
    (fit appears to me a felf-evident propofition, that the feveral State Legislatures retain all the powers of legifation, delegated to them by the State Conftitutions; which are not expressly taken away by the Conftitution of the United States. The eftabliihing courts of juftice, the appointment of Judges, and .the making regulations for theadminiftration of juftice, within each State, according to its laws, on allfuhjects not entrusted to the Federal Government, appears to me to be the peculiar and exclvjive province, and duty of the State Legifiatures’. All the powers delegated by the people of the United States to the Fe-, deral Government are defined, and no constructive powers can be exercifed by it, and all the powers that remain in the State Governments are indefinite; except only in the Confti-tution of Majfachufetts.
    
    The effect of the refolution or law of Connecticut, above ftated, is to revife a decifion of one of its Inferior Courts, called the Court of Probatefor Harford, and to direft a new hearing of the cafe by the fame Court of Probate, that paffed the decree againfi the will of Normand Morrifon.. By the existing law of Connecticut a right to recover certain property had Veiled in Calder and wife (the appellantsJ in confequence of a decifion of a court of justice, but, in virtue of a fubfequent re-folution or law, and the neiu hearing thereof, and the decifion in confequence, this right to recover certain property was diverted, and the right to the property declared to be in Bull and wife, the appellees. The foie enquiry is, whether this refolution or law of Connecticut, having fuch operation, is an ex post-facto law, within the prohibition of the Federal Conftitution'?
    Whether the Legiflature of any of the-States can revife and cor reft by law, a decifion of any of its Courts of Juftice, although not .prohibited by the Conftitution of the State, is a queftion of very great importance, and not neceflfary now to be determined ; becaufe the refolution or lave in question does not ■go fo far, I cannot fubferibe to the omnipotence of a State 
      
      Legiflature, or that it is abfolute and without contreul; although its authority iliould not be exprefsly retrained by the Coristitution, or fundamental law-, of the State. The people of the United States ere£ted their Conftitutions, or forms of government, to eftabliih juftifce, to promote the general welfare, to fecure the bleftings of liberty; and to protedft their perfons and property from violence. The purpofes for which men enter into fociety will determine the nature and terms of the facial compact ; and as they are the foundation of the legifative power, they will decide what are the proper objects of it: The nature, and ends of legifative power will limit the exercife of it. This fundamental principle flows from the very nature of our free Republican governments, that no man. ihould be compelled to do what the laws do mot require ; nor to refrain from acts which the laws permit. There are a£ts which the Federal, or State, Legiflature 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 abufe of legifative 'power; as to authorize manifest 'injustice by poftive law ; or to take away that fecurity for perfonal liberty, or private property, for tne protection whereof the government was eitabliihed. An act of the Legifla-ture (for I earn ot call it a lavo) contrary to the great firstprin-ciples of the focial compact,cz.nnot be confidered a rightful exer-cife of legifative authority. The obligation of a law in governments eitabliihed on exprefs compact, and on. republican principles, muft be determined by the nature of the power, on which it is founded. A few inftanceá will fufB.cc to explain what Í mean. A law that puniihed a citizen for an innocent a£tion, or, in other words, for an act, which, when done, was in violation of no existing law; a law that deftroys, or impairs, the lawful private contracts of' citizens ; a law that makes a ‘.man a Judge in his own caufe; or a law that takes property . from A. an'd gives it to B: It is againil all rea fon and juftice, for a people to entruft a Legiflature with such powers j.and, therefore, it cannot be prefumed that they have done it. The genius, the nature, and the fpirit, of our-State Governments, amount to a prohibition of fuel) acts of leglfaiion ; and the general principles of lato andreafon foibid them. The Legif-lature may enjoin, permit, forbid, and puniih; they may declare new crimes ; and eftabliih rules of conduct for all its citizens in future'entes ; they may command- v/hat is right, 'and prohibit what is wrong; but- they cannot change innocence into guilt; or puniih 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, or State, Legiflature poilefles fuch powers,• if they had not been exprefsly reftrained ; would, inmy opinion, be apolitical h~reJy, altogether inadmiffiblein our free republican ~ovcrnrnents.
    ALL the refrri~ions contained in the Conif-itution of the. United States on the power of the State Leg~fiatures, were provided in favour of the authority ot thc Federal (~-overnwent. The prohibition againPc their making any cx postfact~ laws was introduced for greater caution, and very probably arofe froni the knowlcdg; that ~he Par1i~,ne~t of Gre' cit J3ritazn claimed and exercifed a power to pafs flich law~, under the denomination of bills of attainder, or bills of pains and penal_ ties; the first infliSling capital, and the other left, punifhment. Thefe a~7s were la,giflative juc~c~rments; and dii ex-erc~/~ of j~dicial power. Sometimes th~y refpe~ed the crime, by declaring a~iis to be treaIoii~ which were not treafon, when committed ; at other times, they violated the rules of evidence (to fupply a deficiency of legal proof) by admitting one witnets, when the exiJtzng law reqwred two; by receiving evidence without oath; or the oath of the wzfe againft the huf_ band; or other t~fthnony, whkh the courts of jLrftic~ would not adrñit; at other tirne~ they. infliaed puniJhments, where the party wa's not, by laW, liable to any pziniJhment; ~nd in 9thercafe~, they infliEIed greater punifhment, than the law an-flexed to the ottence.-1he ground for the exercile o.t luch legijiative power was this, that the fafety of the kingdom depended on the~death, Or other punlthrnent, ot the ottender: as if traitors, when difcovered, could be fo, fnrmid~bI; or the go-verrimentfo infecure ! Vjith veryfewexceptions, the advocates offuch laws were ftimulated by ambition, or perforal relentment, and vindi~,tjve malice. `lo prevent inch, and firndar, a5~s of violence and injuf~ice, I believe, tWe Fàderal and State Legillatures, were prohibited from palling any bill of attainder; or any ex ~aJ? fa~7o law.
    The Conftitution of di~ United States, article I, fc~tion 9, prohibits the Legiflature of the United Siates from palling any ~x poJtJa~to law ; end, in k~tion 10, lays .teveral reftr~tions on the authority of the Le~/latures of the feve~a1fiates; and,
    among them, "that no ftate thall pafs any ex poJlfa& law."
    .t may be remembercd, that the Iegif1atur~s of fëvc'ral of the ftates~ to wit, M-i/Jicbufctts, Pennfylvania, De/ai~'are, Mary_ (and, ~nd lVorth `and South Garolina, are exprefsly pr&u-bited, by their ifate Gonstitutions, from palling an~r cx po~t fca~7o law. ` 0
    
      I ihali endeavour to fhew what law is to be confidered an ex post faSto law, within the words and meaning of the prohibition in the Federal Confutation. The prohibition, “ that no Rate (hall pafs an-y ex post fait a law,” 'neceffarily requires fonie explanation ; for, naked and without explanation, it is unintelligible, and means nothing. Literally, it is only, that a law fall not he faffed concerningand after the fait, or thing done, or aition committed* I would affc, what fait; of' what nature, or kind; and by whom done ? That Charles ist. king of England, was beheaded ; that Oliver Cromwell was Protedlor of England; that Louis 16th, late King of France, was guillotined; are all fails, that have happened; but it would be nonfenfe to fuppofe, that the States were prohibited from making any law-after either of thefe events, and with reference thereto. The prohibition, in the letter, is not to pafs any law concerning, and after the fait-, but the plain and obvious meaning and intention of the^prohibition is.this; that the Le~ gif atures of the fevsral states, Jhctll not pafs laws, after a fait done by a Jubjeit, or citizen, which Jhal! have relation to fuch fací, and J,hall punifh him for having done 'it. The prohibition confidered in this light, is an additional bulwark in fa--vout of the perfortal fecurity of- the fubjedl, to protydl his perfon from fnnijhment by legifative acts, having- a retrofpec-tive operation. .Ido not'think it was inferred' to fecure the citizen in his private rights, of either property, os contracts. The prohibitions not to make any thing but gold and filver coin a tender in payment of debts, and not to pafs any law impairing the obligation of contradls, were inferted to fecure private rights; but the redaction not to pafs any ex post facto lam, was to fecure the perfon of the fubjedl from injury, or punifhnunt, in confequence of fuch law. If the prohibition againft making ex post facto laws was intended to fecure per-fanal rig Ins from being affected, or injured, by fuch laws, and the prohibition is fúfíiciently extenfive for that objedl, the other reftraints, I have enumerated, were unneceffipy, and therefore improper ; for both of them are rctrofpective.
    
    I will ftate what laws I confider ex post facto laws, within the words and the intent of the prohibition. ' iff. Every law that makes an adlioq, done befóte the puffing of the law, and which was innocent when done,-criminal;- and puniíhes fuch ' action. 2.d. Every .law that aggravates a crime, or makes it-greater than it was,- when committed. 3d. Every law that changes the pun]foment, and inflicts a greater punijh'ment, -than the law annexed to- the crime, when committed. 4th. Every law that-alters the legal rules of evidence, and receives lefs, .or different, teflimony, than the law required at the time of the commiffion of the offence, in order to cotsvict'the offender. 
      All thefe, and fimilar laws, are manifeftly unjust and oppreff.ve. In my opinion, the true diftin&ion is between ex post facto laws, and rctrofpective laws. Every ex post facto law muft necefiarily be retrofpbctive; but every retrosfpective law is not an ex post facto laW: The former, only, are prohibited. Every law that takes away, or impairs, rights vested, agreeably to exifting laws, is retrofpeélive, aiid is generally unjuft} and may be opprellive; and it is a good general rulé, that a la tit ihould have no retrofpect: but there are cafes in which k,ws may juftly, and for the benefit of the community, and alfo of individuals, relate to a time antecedent to their commencement; as ftatutes of oblivion, or of pardon. They are certainly retrospective, and literally both concerning, and after, the facts committed. But I do not confider any law ex post facto, within the prohibition, that mollifies the rigor of the crb'hinal law; but only thofe that create, or aggravate, the crime; or encreafe the puniftmnent, or change the rules of evidence, for the purpofe of conviction. Every law that is to have an operation before the making thereof, as to commence at an antecedent time; or to fave time from the ftatute of limitations y or to-excufe a&s which were unlawful, and before committed,and the like; is retrospective. But ftich laws may be proper or ne-ceflary, as the cafe may be. There is a great and apparent difference between making an unlawful a£f lawful; and the making an innocent a ¿lion criminal,. and pu-nifhing it as a crime. The expreflions “ ex >pofl fable laws,” are technical, they had been in ufe long before the Revolution, and had acquired an appropriate meaning, by Le-giflators, Lawyers, and Authors. The celebrated and judieious Sir T'Filliam Blackjlone, in his commentaries, confiders an ex pojl faSto law preeifely in the fame light I have done. His opinion is confirmed by his fuceeflor, Mr. Wooddefon; and by the author, of ’the Federalijl, who I efteem fu'perior to both, for his extenfive and accurate knowledge of the true principles of Government.
    
    1 alfo'rely greatly on the definition, or explanation of ex-post f.acto laws, as given by the Conventions of Maffa-chufetts,Maryland, and North Carolina; - in their fev.erál Con-ftitutions, or forms of Government.
    In the declaration of rights, by the convention of Majfachu-fetts, part ift. feit. 24, “ Laws made topúnijh aiiions done before the exiflctice of fuch laws, and which have not been declared crimes by preceedinglaws, are unjuft, &c.”
    In the declaration of right?, by the convention of Maryland, ‘ art. 1.5th, “ Retrofpe<?dve laws puniihing fails committed before the exiftence of fuch laws, and by them, only declared Criminal, are opprellive, &c.”
    
      N the declaration of rights by the-convention of 'North Carolina, art. 24th, 1 find the fame definition, precifely in the lame words, as in the Maryland^conftitution.
    In the declaration of Rights by the convention of Defttzvdre, art. nth, .the fame definition was clearly intended, but inaccurately expreffed; by-faying “laws puniihingoffences (ir.ftead of a¿tions, or facts) committed before the' exiftence of fuch laws, are Opprelfive, &c,”
    I am of opinion, that thefadt, contemplated by the prohibition, and not to be affected by a fubfequent law, was Jome fa £1 to be done by a Citizen, or Subjeft.
    
    In'2nd Lord Raymond 1352, Raymond, füíúce, called the ftat. 1 Geo. tJI: Jlat. 2 par 8, about regiftering Contrails -for South Sea Stock, an ex pojl fafto\!aw, becaufe it affeíted Con-traes made before the ftatute.
    In the prefentcafe, there is no fact done by Lull and wife Plaintiffs in Error, that is- in any manner affeiled by the law or re-folution of Connecticut'. It' does not concern, or relate to, any act done by them. The decree of the Court of Probate of Har-ford (on the a iff, March) in confequence of which Colder and wife claim a right to the property in queftion, was given before the faid lav/ or refolution, and in thgt fenfe, was affefited and let afide by it ; and in confequence of the l:uv allowing a hearing and the - decifion in favor of the will, they have loft, what they would have been entitled to, if the Law or refolution, and the decifion in confequence thereof, had not been made.
    
      ‘The decree of the Court of probate is the only fact, on which the law or'refolution operates. In my judgment the- cafe of the Plaintiffs in Error, is not within the letter of the prohibition; and, for the reafons aííignsd, 1 am clearly of opinion, that it is not within the intention of the prohibition ; and if within the intention, but out of the letter, I ihould not, therefore, confider myfelf juftified to continue it within the prohibition, and therefore that the whole was void. ■
    • It was argued bytheCounfel for the plaintiffs in error,
    that the Legifature of Connecticut had no conftitutional power to make the refolution (or law) in queftion, granting a new hearine:, &c. •
    "Without giving an opinion, at this time, whether this Court, has jurifdiction to decide that any law made by Congrefs, contrary to the Conftitution of the United States, is void ; I am fully fatisfied that this court has no jttrifdiciion to determine that any law of any ftate Legif ature, cofitrary to the Conftitu* . tion of fuch ftate, is void. Further, if-this court .had such ju-rifdiction, yet it does not appear to me, that the refolution (or law) in queftion, is contrary to the charter of Connecticut, or its conftitution, which is faid by counfel to be computed of its ails of affembly, and ufages, and cuítoms. I ihould think, that the Court?'' of Connecticut are the proper' tribunals to decide, whether laws, contrary to the conilitution thereof, are void. In the prefenc cafe they have, both in the inferior and fuperior courts, determined that the Refolution (or law) inqueilion was ■nit contrary to either their (late, or the federal, conilitution.
    To (bow tb.it the refolution was contrary to the conilitution of the United States, it was contended that the words, ex poft facto law, have a precife and accurate meaning, and convey but one idea 'to prof'effional men, which is, “ by matter of after fact; by famethhig after the factAnd Co. Litt. 241. Fearnes Con. Rem. (Old Ed.) 175 and203. Povjell on Dcvifcs 113,133. 134. were cited; and the table to Coke’s Reports (by Wilfon') title ex poft facto, was referred to. There is no doubt that’aman may he a trefpaffer from the beginning, by matter of after fact; as where an entry is given by law, and the party abufes it; or where the law; gives a diftrefs, and the party kills, or works, the diftrefs. ' .
    I acimut,.an ■R&unhwful in the beginning may^in fome cafes, become lawful by -matter cf afterfact. ■
    
    I alfo agree, that the words “ ex poft facto” have the meaning contended for, and no other, in the cafes cited, and in all fionilar cafes ; vT’herc they are ufed unconnecied with, and without relation to, Legifative acls, or laws.
    There appears to me a manifeíl diilin&on between the cafe where one fact relates to, and affects, another fact, as where an after fact, by operation t>f law, makes a former fact, either lawful or unlawful; and the cafe where á law made after a fail . done, is-to operate on, and to affeci,y«t'¿ fact. In the firft cafe both the acts are done by private perfons. In the fecond cafe the firft a¿l ¡s done-by a pm-vt/a perfon, and the fecond act is done by the legislature to afiect the firft act,
    I beiieve that but one inílance can be found in which a Bri-tijh judge called a ilatute, that affected contracts made before the Ilatute, an ex poft facto lato ; but the judges of Great Britain always coníidered p^jztf/ilatutes, that ci bated crimes, or encreaf-ed the puniihment of them, as ex poft facto law's. .
    
    If the term ex p;ft facto law is to be conftrudto include and to prohibit the enacting any law after a fad, it will greatly re-ilrict the power of the federal and ilate legiilatures; and the conibqueric.es of fuch a conftructlon may not be forefeen.
    If the prohibition to make no cx poft facto Jaw extends to all laws made after the fiad, the two' prohibitions, not to make any thing but gold and lilvcr coin a ferdcYun payment of debts ; ' and not to pafs any law impairing the obligation of contracts^ were improper and unneceflary.
    
      It was further-urged, that if the provision does not extend to prohibit the making any latv after a fact, then all chafes in action ; all lands by Dev ife; all perfonal property by bequeft, or diftribution j by Elegit;, by execution ; by judgments,, particularly on torts-, will be unprotected from thelegiflative ppwer Cf the ftates ; rights vefted may be divefted at the vvill and pleafure of the ftate legiflatures; and, therefore, that tiie true conftruction and meaning of the prohibition is, that the- ftates pafs no lanío to deprive a citizen of any right vefted in him, by exifting laws.
    
    It is not to be prefumed, that the federal or ftate legiflatures will pafs' laws to deprive citizens of rights veiled in them by. exijling jaws'; unlefs for the benefit of the tuhole community ; and on making full fatisfaction. The reftraint againft making any ex pojl facto laws was not confidered, by the framers of the conftitution, as extending to prohibit the depriving a citizen even of a vejlecl right to property; or the provifion, “ that private property fhould not be taken for public ufe, without juft compenfation,” was unneceffary.
    It feems to me, that the right of property, in its origin, could only arife from- compact exprcfs, or implied, and I think it the better opinion, that the right, as well as the mode, or manner, of acquiring property, and of alienating or transferring, inheriting, or ■tranfmitting it, is conferred by foci tty ; is regulated by civil inftitution, and is always fubject to the rules pre-fcribed- by pojitive- law. When I fay that a right is vefted in a citizen, I mean, that he has the power to do certain actions', or to pofjefs certain things, according to the law of the land.
    
    If any'une has a right to property ftich right'is si perfect and exclufive right; but no one can have fitch right before he has. acquired a better right to the property, than any other'perfon in the world : a right, therefore, only to recover property cannot be called a perfect and exclufive right. I cannot agree, that a right to property vefted in Calder and wife, in confequence of the decree (of the 2ifl< of March 1783) difapproving of the will of Morrifon⅛ the Grandfon. If the will was valid, Mrs. Calder could have no right, as heirefsof Morrifon, the.phyfi-cianq but if the will was fet afide, ihe had an undoubted title.
    The. refólution for law) alone had no manner of effect on any right vjhatever veiled in Calder- and wife. The 'Refolution ,;(or law) combined with the new hearing, and the deci-fion, in virtue of it, took away their right to recover the proT perty in queflion. But when .combined they took away no right of property veiled in Calder -Anil wife ; becaufe the decree •againft the will (sift. March 1783) did not, veil-in or transfer any properly to them.
    
      I am under a neceffity to give a conftruction, or explanation 0Í the words, “ ex poft facto laiv” becaufe they have not any certain meaning attached, to them. But I will not go farther than.I feelmyfelf bound to do ; and if lever exercife thejurifdic-tionl will not decide any laiv to be void,. but in a very clear cafe.
    
      
      T1~e cafe of the E~r1 of Strafford, in 1&41.
    
    
      
       1 he cef~ of Sir Johi~Fcnwick, in iôço.
    
    
      
       bani~I1tn.nr of Lord Ci~rcndo~, thô9 (19 Ca. ~. c.. io.) aiid of tJ~e BiIhop of AItcibury, 10,1723, (q (ho. I. C. 17.). -
    
    
      
       The Coventry act, in 1b70, c. 1b70 Z2 23 `~ar. 2 c.
    
   I am of opinion, that the.decree of the Supreme'Cotirt of Errors of Connecticut be affirmed, with coils.

Paterson, Justice.

The Conftitution of Connecticut is made up of ufages, and it appears that its Legiflature have, from the » beginning, exercifed the power of granting new trials. This has been uniformly the cafe till the year 1762, when this power was,-by a legiflative aft, imparted to the fuperior and county, courts. But the aft does not remove or annihilate the pre-ex-i'fting power of the Legiflature, in this particular; it only communicates to other authorities a concurrence of jurifdiction, as to the awarding of new trials. And the faft is,' that the Legiflature have, in two inftances, exercifed this power lince the paffing of.the law in 1762. They afted in. a double capacity, as a houfe of legiflation, with undefined authority, and alfo as a court of judicature in certain exigencies. • Whether the latter arofe from the indefinite nature of their legifla-tive powers, or in fome other way, it is not necefiary to dif-cufs. From the bell information, however, which I have been able to collect on this fubjeft, it appears, that the Legif-lature, or general court of Connecticut, originally poftefied, and exercifed all legiflative, executive, and judicial authority; and that, from time to time,' they diftributed the two latter in fuch. .manner as they thought proper; but without parting with the general fuperjntending power, or the right of exercifing the lame, whenever they iliould judge it expedient. But be this as it may, it is fufficient for the prefent - to obferve, that*they . have on cei tain occafions, excercifed judicial authority front 0 the commencement of their civil polity. This ufage makes, up part of the Conftitution of Connecticut, and we are bound to confider it as fuch, unlefs it be inconfiftent with the Con-ftitution of the United States. True it is, that the awarding of new trials falls properly within the province of’the judicf- . ary; but if the Legiflature of Connecticut have'been in the uninterrupted exercife of this authority, in certain cafes, we mull, in fuch cafes, refpect their decifions as flowing from a competent jurifdiction, or conftitutional, organ. And therefore we may, in the prefent inftance,. confider the Legiflatuie of the ftate, as having afted in their cuftomary judicial capacity. If fo, there is an end of the queftion. For if the power, thus exercifed, comes more properly within the defeription-,, of a judicial than of a legiflative power; and if by ufage or the

Conftitution, which, in Connecticut, are fynonimous terms, the Lcgiil'ature.of that fete a£ted in both capacities;1 then in, the café now before--us, it would be fair to confider the .awarding of a new trial, as an act emanating from the judiciary fide of the department. But as this view,, of the fubje£t militates againfehe Plaintiffs in error, their counfel has con-tertdéd for a reverfal of the judgment, on the ground, that the awarding of a nc-w trialj was the effect of alegiflative. act, and that it is ur.confHtutional, becaufe-nn ex post facto law^Yot the fake of ascertaining the meaning of thefe terms, I will confider the refolution of the General court of Connecticut, as the exer-cife of a legiflative and not a judicial authority. The question, then, which arifes on the pleadings in this caufé, is, whether the refolution’of the Legiflature of Connecticut, be an ex pbft facto lam, within the meaning cf the Conftitution of the United States ? ,1 am of., opinion, that it is not. The words, ex post facto, when applied to a law', have a technical meaning, and, in legal phrafeology, refer to crimes, pains, and penal-tie?. Judge Biackjione’s defeription of the terms is clear and-accurate,. “ There is, fays he, a ftill more unreaf.mable me- “ thod than this, which is called making of laws, ex post facto, “when after an actiqn, indifferent in itfelf, is committed, the “ Legiflator, then, for the firft time, declares it to have been “a crime, and inflicts a punifhment upon the perforf who has .“ committed' it. Here it is impofíible, that the party could ‘i forefee that an action, innocent when it was done,, fhould “be afterwards converted to guilt by a fubfequent lav/;, he “.had, therefore, no caufe to abftain from it; and all puniih- “ rhent for net abftaining, muft, of confequence, be cruel and “ unjuñ.” 1 Itf Com. 46. Here the meaning, annexed to the terms ex post facto laws, unqueftionakly refers to crimes, and nothing elfe. 'The hiftoric page .abundantly evinces;, that the power of palling fuch laws fhould be withheld from legislators ; as it is a dangerous inftrument in the hands of bold, unprincipled, afpiring, and party men, and has been two often lifer) to effect the moft deteftable purpofes.

On jnfpecting fuch of our. ftate Conftitutions, as take notice of law’s made ex post facto, we ihall find, that they are un-derftood.in the fame fenfe.

The Con'fHtution of Majfach 'uftts, article 24th of the Declaration of rights

“Laws made to punifli for actions done befors.thc exiftcnce of fuch i-:ws, and which have not been declared crimes by preceding laws, are uajuft, cppreíTive, and inconfiftent with the fundamental principles of a free government.”

TKe Conftitution of Delavjare, article nth of the Declaration of Rights :

That retrofpective laws punifhing offences commuted be fore die cxiftence of fuch laws, are oppreffive and unjuft, and ought not to be made.”
The Conftitution of Maryland, articie 15th of the Declaration of Rights :
“ That retrofpective laws, punifhing faffs committed before the cxiftence of fuch law', and by them only declared criminal, are oppreffive, unjuft, and incompatible with liberty; wherefore no éx post facto law ought to be made.”

The Conftitution of North Carolina, article 24th of the Declaration of Rights :

“ That retrofpective laws, punifhing facts committed before the exiftence of fuch laws, and by them only declared criminal, ■are oppreffive, unjuft, and incompatible- with liberty j wherefore no lx pojl facto law ought to be made. ”

, From the above pi.flages it appears, that ex jofl facto laws have an appropriate fignification; they extend to penal fta-tutes, and no further; they are reftricted in legal eftimafion to the creation, and, perhaps, enhancement of crimes, pains-'and penalties. The enhancement of a crime, or penalty, feems to come within the famp mifthief as the creation of-a crime or penalty; and therefore they may be piaffed-together.

Again, the words of the Conftitution of the United States are,. “ That no State íhall país any bill of attainder, ex pojl “facto law, or law impairing the obligation of contracts.” Article iff. fection IQ.

Where is the neceffity or ufe. of the latter words, if a law impairing the obligation cf contracts, be comprehended within the terms ex post facto, law ? It is obvious from the fpecifi-cation of contracts in the laft member of the c’laufe, that the framers of the Conftitution, did not underftand dr ufe the words in the fenfe-contended for on the part of the Plaintiffs in Error. They underftood and ufed the words in their known and appropriate, fignification, as referring to’crimes, pains, and pe¿ nalties, and no further. The arrangement of the diftincf members of this fection, neceffarily points to this meaning.

I had an ardent defire to have extended the provifion in the Gonftitution to retrofpective laws i.n general. There is neither policy nor fafety-in-fuch laws ; and, therefore, I have always had a ftrong averfion againft them. It may, in general, be truly obferved of retrofpective laws of every defci iption, that they neither accord with found Icgifiation, nor the fundamental principles of the focial compact. But' on full confider-ation, I,am convinced, that (X post facto laws mud'be limited irt the manner already éxpréfled ; they muff be taken in their technical, which is alfo their comrrion-and general, acceptation, and are not to be underftopd in their literal fenfe.

Iredell, Juflice.

Though I concur in the general refu/t of the opinions, which have been delivered, I cannot entirely adopt the reafons that are aligned upon the occafion. '

From the belt information to be collected, relative to the Conftitution of ConneSticut, it appears, that the Legiflature of that State has been in the uniform, uninterrupted, habit of exercifing a general fuperintending power over its courts of law, by granting new trials. It may, indeed, appear ftrange to fome of us, that in any form,, there íhould'exift a power to grant, with refpeeb tofuits depending or adjudged, new rights of trial, new privileges of proceeding, not previoufly recognized and regulated by pofitive inftitutions; but fuch is the 'eftabliihed ufage of Connecticut^ and it is obvioufly confiftent with the general fuperintending authority of her Legiflature Nor is it altogether without fome fanftion for a Legiflature to aft as a court of juftice.In England, we know, that one branch of the Parliament, the' houfe of Lords, not only exercifes a judicial power in cafes of impeachment, and for the trial of its own members, but as the court of dernier refort, takes cognizance of many fuits at law, and in equity: And that in conftruftion of law, the jurifdiftion there exercifed is by the King in full Parliament;, which ihews that, in its origin, the caufes were probably heard beforethe whole Parliament. When Connecticut Was fettled, the right of empowering her Legifla-tureto fuperintend the Courts of Juftice, was, I prefume, early affirmed ;and its expediency, as applied to the local circumftan-ces and municipal policy of the State, is fanftioned by along and uniform praftice. The power, however, is judicial in its nature; and whenever it is exercifed, as in the prefent inftance,. it is an exercife of judicial, not of legiflative, authority.

Bur, let us, for a moment, fuppofe, that the refolution, granting a new trial, was a legiflative aft, it will by no means follow, that it is an aft affefted byjthe conftitutional prohibition, that “ no State ihall pafs any ex p off facto law.” I will endeavour to ftate the general principles, which influence me, on this point, fuccinftly and clearly, though I have not had an opportunity to reduce my opinion to writing..

If, then, a government, compofed of Legiflative, Executive and Judicial departments, were eftabliihed, by a Confti-tution, which impofed no limits on the leg’ílátive power, the confequence would inevitably be, that whatever .the legiflative ■power choie toenaft, would be lawfully enafted, and the judicial power could never interpofe to pronounce it void. • It is true, that fome fpeculative jurifts have held,, that a legiflative' aft againft natural juftice muft, in itfelfj be voidbut I can-pr»t think that, under fuch a government, any Court of Juftice would poflefs a power to declare it fo. Sir William Blackflone, having put the ftropg cafe of an aft- of Parliament, which authcfrife a man to try his own cáufe, explicitly adds, that even in that cafe, “ there is no court that has power to defeat the intent of the Legiflature, wh' n couched in fuch evident and exprefs words, as leave no doubt whether it was the intent of' the Legiflature, or no.” 1 Bl. Com. 91.

In order, therefore, to guard againft fo great an evil, it has been the policy of all the American ftates, which have, individually, framed their ftateconftitutions finee the revolution,and of the people of the United.States^ when they framed the Federal Conftitution, to define with précifion the objects of'the legifla-tive power, and to reftrain its exercife within marked and fettled boundaries. If any a<ft of Congrefs, or of the Legiflature: ®f a ftate, violates thofe conftitutionál provifions, it is unqueftion-ably void ; though, I admit, that as the authority to declare it void is. of a delicate and awful nature, the Court will never refort to that authority, but in a clear and urgent cafe. If, on the other hand, the Legiflature of' the Union, or the Legifla-ture of any member of the Union, íhall pafs a law, within the general fcope of their conftitutionál power, the Court cannot pronounce it tobe void,merelybecaufeit is, in.their judgment» contrary to the principles of natural juftice. The ideas of natural juftice are regulated by no fixed ftandard: the ableft and the pureft men have differed upon the fubjedt ; and all that íbó Court could properly fay, in fuch an event, would be, that the Legislature,'(poíTeffed.of an equal right of opinion,) had palled an adl which, in the opinion of the judges, was incon-flftent with the abftradl principles of natural juftice. There are then but two lights, in which .the fubjedt can be viewed : ift. If the Legiflature purfuethe authority delegated to them,-their adts are valid. 2d. If they tranfgrefs the boundaries of that authority, their adls are invalid. In the former cafe, they ex-ercife the diferetion veiled in them by the people, to whom alone they are refponfible for the faithful difeharge of their truft : b.ut in' the latter cafe, they violate a fundamental law, which niuft be our guide, ‘whenever ,vve are called upon as judges to determine the validity of a legiflative adh

Still, however, in the prefent inffance, the adt or refolution of the Legiflature of Connefiicut, cannot be regarded as an ex pojl fadto law; for, the true conftrudlion of the prohibition extends to criminal, not to civil, cafes. It is only in criminal 0⅛ • fes, indeed, in which the danger to be guarded againft, is greatly to be apprehended. The hiftory of every country in Europe will furniih flagrant inftances of tyranny exercifed under the pretext of penal difpenfations. Rival fadtions, in their efforts to crufh each other, have fuperfeded all the forms, and fup-prefled all the fentimer.ts, of juftice j while attainders, on the principle of retaliation and profeription, have marked all the viciflitudes of party triumph. The temptation to fuch abufes of power is unfortunately too alluring for human virtue; and, therefore, the framers of 'the American Conftitutions have wifely denied to the refpedHvc.Legiilaturcs, Federal as well as State, the poffefUon'of the power itfelf: They (hall not pafs any ex poj? fatto law; or, in other words, they {hall not infiiít a pu-nifliment for any act, which was innocent at the time it was committed ; nor increafe the degree of puniihment previoufly denounced for any fpecific offence.

, The policy, the reafon and humanity, of the prohibition, do not, I repeat, extend to civil cafes, to cafes-that, merely affs<5fc the private property of citizens. Some of the. moil neceffary ■and important a£ts of Legifiation are, on the contrary, founded upon the principle, that private rights muff yield to public exigences. Highways are run through private, grounds. Fortifications, Light-houfes, and other public edifices, are necef-farilly fometimes built upon the foil owned by individuals. In fuch, and iimilar cafes, if the owners fiioulá refufe voluntarily to accommodate the public, they muff be conftrained, as far as the public neceifities require; and juftice is done, by allowing them a reafonable equivalent. Without the poffeifion of this power the operations of Government would often be obítructed, and fociety itfelf would be endangered., It is not fufficient to urre’e, that the power may be abiifcd, for; fuch is the nature of all power,—fuch is the téndeney of every human inffitutiou : and, if might as fairly be faid, that the power of taxation, which is only circumfcribed by the diferetion of the Body, in which it is veiled, ought not to be granted,- becaufa the Legifiature, difregarding its true objects, might, for vifiona-ry and ufe.Iefs projects, impofea tax tó the amount of nineteen {hillings in the pound. We mull be content td limit power where we can, and where we.cannot, confiftently with its ufe, v/e muff be .content torepofe a falutary confidence. It is our confutation that there never exiiled a’Govemment, in ancient or modern times, more free from danger in this refpedl, than the Governments of America.

Upon the whole, though there cannot he á cafe, in which an ex pojl fafio law in criminal matters is requisite, or juilifiable (for Providence never Can intend to promote the profperity o>f any country- by bad-means) yet; in the prefent inilance the objection doesnot arife : Becaufe, iff. if the a£t of the Uegilla-ture of Connecticut wasajüdicial acl, it is r.ot within the words of che-C-oniritu.rion ; and 2d. even if it w'as a legislative' ail, it is not within the meaning of the prohibition.

Cushing, JuJlice. The cafe appears to me tobe clear of all difficulty, taken either way. If the a£t is a judicial a£t, it is not touched by the Federal Coaílituticn: and, if it is a legif-legiflative a£lj it is maintained and juftified by Ae ancient and Uniform pra&ice of the ft ate. of GohneEiicut.

Judgment affirmed.  