**4 All the restrictions contained
in the Constitution of the United States on the power of the State
Legislatures, were provided in favour of the authority of the Federal
Government. The prohibition against their making any ex post facto
laws was introduced for greater caution, and very probably arose
from the knowledge, that the Parliament of Great Britain claimed
and exercised a power to pass such laws, under the denomination
of bills of attainder, or bills of pains and penalties; 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,FNa
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;FNa
at other times they inflicted punishments, where the party was not,
by law, liable to any punishment;
FNb and in other cases, they inflicted greater punishment,
than the law annexed to the offence.FNc
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.
FNa The case of the Earl of Strafford,
in 1641.
FNa The case of Sir John Fenwick,
in 1696.
FNb The banishment of Lord Clarendon,
1669 (19 Car. II., c. 10), and of the Bishop of Atterbury, in
1723 (9 Geo. I., c. 17).
FNc The Coventry act, in 1670
(22 & 23 Car. II., c. 1).
The case of the Earl of Strafford, in 1641.The case of Sir John
Fenwick, in 1696.
The banishment of Lord Clarendon, 1669 (19 Ca. 2. c. 10.) and of
the Bishop of Atterbury, in 1723, (9 Geo. 1. c. 17.)
The Coventry act, in 1670, (22 & 23 Car. 2 c. 1.)
The Constitution of the United States, article 1, section 9, prohibits
the Legislature of the United States from passing any ex post facto
law; and, in section 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.‘
**5 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.
*390 I shall endeavour to show what
law is to be considered an ex post facto law, within the words and
meaning of the prohibition in the Federal Constitution. The prohibition,
‘that no state shall pass any ex post facto law, ‘ necessarily requires
some explanation; 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 1st. king of England, was beheaded; that
Oliver Cromwell was Protector of England; that Louis 16th, late
King of France, was guillotined; are 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 favour of the personal
security of the subject, to protect his person from punishment by
legislative acts, having a retrospective operation. I do not think
it was inserted to secure the citizen in his private rights, of
either property, or contracts. The prohibitions not to make any
thing but gold and silver coin a tender in payment of debts, and
not to pass any law impairing the obligation of contracts, were
inserted to secure private rights; but the restriction not to pass
any ex post facto law, was to secure the person of the subject from
injury, 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. 2nd. Every law that aggravates a crime, or makes it
greater than it was, when committed. 3rd. 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. *391 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 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.
[. . .]
Still, however, in the present instance,
the act or resolution of the Legislature of Connecticut, cannot
be regarded as an ex post facto law; for, the true construction
of the prohibition extends to criminal, not to civil, cases. It
is only in criminal cases, indeed, in which the danger to be guarded
against, is greatly to be apprehended. The history of every country
in Europe will furnish flagrant instances of tyranny exercised under
the pretext of penal dispensations. Rival factions, in their efforts
to crush each other, have superseded all the forms, and suppressed
all the sentiments, of justice; while attainders, on the principle
of retaliation and proscription, have marked all the *400 vicissitudes
of party triumph. The temptation to such abuses of power is unfortunately
too alluring for human virtue; and, therefore, the framers of the
American Constitutions have wisely denied to the respective Legislatures,
Federal as well as State, the possession of the power itself: They
shall not pass any ex post facto law; or, in other words, they shall
not inflict a punishment for any act, which was innocent at the
time it was committed; nor increase the degree of punishment previously
denounced for any specific offence.
**13 The policy, the reason and humanity,
of the prohibition, do not, I repeat, extend to civil cases, to
cases that merely affect the private property of citizens. Some
of the most necessary and important acts of Legislation are, on
the contrary, founded upon the principle, that private rights must
yield to public exigences. Highways are run through private grounds.
Fortifications, Light-houses, and other public edifices, are necessarilly
sometimes built upon the soil owned by individuals. In such, and
similar cases, if the owners should refuse voluntarily to accommodate
the public, they must be constrained, as far as the public necessities
require; and justice is done, by allowing them a reasonable equivalent.
Without the possession of this power the operations of Government
would often be obstructed, and society itself would be endangered.
It is not sufficient to urge, that the power may be abused, for,
such is the nature of all power, such is the tendency of every human
institution: and, it might as fairly be said, that the power of
taxation, which is only circumscribed by the discretion of the Body,
in which it is vested, ought not to be granted, because the Legislature,
disregarding its true objects, might, for visionary and useless
projects, impose a tax to the amount of nineteen shillings in the
pound. We must be content to limit power where we can, and where
we cannot, consistently with its use, we must be content to repose
a salutary confidence. It is our consolation that there never existed
a Government, in ancient or modern times, more free from danger
in this respect, than the Governments of America.
Still, however, in the present instance, the act or resolution of
the Legislature of Connecticut, cannot be regarded as an ex post
facto law; for, the true construction of the prohibition extends
to criminal, not to civil, cases. It is only in criminal cases,
indeed, in which the danger to be guarded against, is greatly to
be apprehended. The history of every country in Europe will furnish
flagrant instances of tyranny exercised under the pretext of penal
dispensations. Rival factions, in their efforts to crush each other,
have superseded all the forms, and suppressed all the sentiments,
of justice; while attainders, on the principle of retaliation and
proscription, have marked all the *400 vicissitudes of party
triumph. The temptation to such abuses of power is unfortunately
too alluring for human virtue; and, therefore, the framers of the
American Constitutions have wisely denied to the respective Legislatures,
Federal as well as State, the possession of the power itself: They
shall not pass any ex post facto law; or, in other words, they shall
not inflict a punishment for any act, which was innocent at the
time it was committed; nor increase the degree of punishment previously
denounced for any specific offence.
**13 The policy, the reason and humanity, of the prohibition,
do not, I repeat, extend to civil cases, to cases that merely affect
the private property of citizens. Some of the most necessary and
important acts of Legislation are, on the contrary, founded upon
the principle, that private rights must yield to public exigences.
Highways are run through private grounds. Fortifications, Light-houses,
and other public edifices, are necessarilly sometimes built upon
the soil owned by individuals. In such, and similar cases, if the
owners should refuse voluntarily to accommodate the public, they
must be constrained, as far as the public necessities require; and
justice is done, by allowing them a reasonable equivalent. Without
the possession of this power the operations of Government would
often be obstructed, and society itself would be endangered. It
is not sufficient to urge, that the power may be abused, for, such
is the nature of all power, such is the tendency of every human
institution: and, it might as fairly be said, that the power of
taxation, which is only circumscribed by the discretion of the Body,
in which it is vested, ought not to be granted, because the Legislature,
disregarding its true objects, might, for visionary and useless
projects, impose a tax to the amount of nineteen shillings in the
pound. We must be content to limit power where we can, and where
we cannot, consistently with its use, we must be content to repose
a salutary confidence. It is our consolation that there never existed
a Government, in ancient or modern times, more free from danger
in this respect, than the Governments of America.
[Calder v. Bull, 3 U.S. 386, (1798)]