ries, 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.

I also rely greatly on the definition or explanation of ex post facto laws, as given by the conventions of Massachusetts, Maryland, and North Carolina, in their several constitutions, or forms of government.

In the declaration of rights by the convention of Massachusetts, part 1, section 24, "Laws made to punish actions done before the existence of such laws, and which have not been declared crimes by preceding laws, are unjust," &c.

In the declaration of rights by the convention of Maryland, article 15th, "Retrospective laws, punishing facts committed before the existence of such laws, and by them only declared criminal, are oppressive," &c.

In the declaration of rights by the convention of North Carolina, article 24th, I find the same definition, precisely in the same words, as in the Maryland constitution.

In the declaration of rights by the convention of Delaware, article 11th, the same definition was clearly intended, but inaccurately expressed, by saying, “laws, punishing offences (instead of actions, or facts) committed before the existence of such laws, are oppressive," &c.

I am of opinion that the fact, contemplated by the prohibition, and not to be affected by a subsequent law, was some fact to be done by a citizen, or subject.

In 2 Lord Raymond's Reports 1352, Raymond, J. called the statute, 7 Geo. I., statute 2, par. 8, about registering contracts for South Sea stock, an ex post facto law, because it affected contracts made before the statute.

In the present case there is no fact done by Bull and wife, plaintiffs in error, that is in any manner affected by the law or resolution of Connecticut. It does not concern or relate to any act done by them. The decree of the court of probate of

Hartford, on the 21st of March, in consequence of which Calder and wife claim a right to the property in question, was given before the said law, or resolution, and in that sense was affected and set aside by it; and in consequence of the law allowing a hearing, and the decision in favor of the will, they have lost what they would have been entitled to, if the law, or resolution, and the decision in consequence thereof, had not been made. The decree of the court of probate is the only fact on which the law, or resolution, operates. In my judgment the case of the plaintiffs in error is not within the letter of the prohibition; and, for reasons assigned, I 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 should not, therefore, consider myself justified to continue it within the prohibition, and, therefore, that the whole was void.

It was argued by the counsel for the plaintiffs in error, that the legislature of Connecticut had no constitutional power to make the resolution, or law, in question, granting a new hearing, &c.

Without giving an opinion, at this time, whether this court has jurisdiction to decide that any law made by congress, contrary to the constitution of the United States, is void; I am fully satisfied that this court has no jurisdiction to determine that any law of any state legislature, contrary to the constitution of such state, is void. Further, if this court had such jurisdiction, yet it does not appear to me, that the resolution, or law, in question, is contrary to the charter of Connecticut, or its constitution, which is said by counsel to be composed of its charter, acts of assembly, and usages and customs. I should think that the courts of Connecticut are the proper tribunals to decide, whether laws contrary to the constitution thereof are void. In the present case they have, both in the inferior and superior courts, determined that the resolution, or law, in question, was not contrary to either their state, or the federal, constitution.

To show that the resolution was contrary to the constitution

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of the United States, it was contended, that the words, "ex post facto law," have a precise and accurate meaning, and convey but one idea to professional men, which is, "by matter of after fact; by something after the fact." And Coke upon Littleton, 241, Fearne on Contingent Remainders (old edition), 175 and 203, Powell on Devises, 113, 133, 134, were cited; and the Table to Coke's Reports (by Wilson), title "Ex Post Facto," was referred to. There is no doubt that a man may be a trespasser from the beginning, by a matter of after fact; as, where an entry is given by law, and the party abuses it; or where the law gives a distress, and the party kills, or works, the distress. I admit, an act unlawful in the beginning may, in some cases, become lawful by matter of after fact.

I also agree that the words, "ex post facto," have the meaning contended for, and no other, in the cases cited, and in all similar cases; where they are used unconnected with, and without relation to, legislative acts, or laws.

There appears to me a manifest distinction between the case where one fact relates to and affects another fact, as, where an after fact, by operation of law, makes a former fact either lawful or unlawful; and the case where a law, made after a fact done, is to operate on and to affect such fact. In the first case both the acts are done by private persons. In the second case the first act is done by a private person, and the second act is done by the legislature to affect the first act.

I believe that but one instance can be found in which a British judge called a statute, that affected contracts made before the statute, an ex post facto law; but the judges of Great Britain always considered penal statutes, that created crimes, or increased the punishment of them, as ex post facto laws.

If the term "ex post facto law" is to be construed to include and to prohibit the enacting of any law after a fact, it will greatly restrict the power of the federal and state legislatures; and the consequences of such a construction may not be foreseen.

If the prohibition, to make no ex post facto laws, extends to all laws made after the fact, the two 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 improper and unnecessary.

It was further urged, that, if the provision does not extend to prohibit the making any law after a fact, then all choses in action, all lands by devise, all personal property by bequest or distribution, by elegit, by execution, by judgments, particularly on torts, will be unprotected from the legislative power of the states; rights vested may be divested at the will and pleasure of the state legislatures; and, therefore, that the true construction and meaning of the prohibition is, that the states pass no law to deprive a citizen of any right vested in him by existing laws.

It is not to be presumed, that the federal or state legislatures will pass laws to deprive citizens of rights vested in them by existing laws, unless for the benefit of the whole community, and on making full satisfaction. The restraint against making any ex post facto laws was not considered by the framers of the constitution as extending to prohibit the depriving a citizen even of a vested right to property; or the provision, "that private property should not be taken for public use without just compensation," was unnecessary.

It seems to me, that the right of property, in its origin, could only arise from compact, express, 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 transmitting it, is conferred by society, is regulated by civil institution, and is always subject to the rules prescribed by positive law. When I say that a right is vested in a citizen, I mean that he has the power to do certain actions, or to possess certain things, according to the law of the land.

If any one has a right to property, such right is a perfect and exclusive right; but no one can have such right before he has acquired a better right to the property than any other person in the world; a right, therefore, only to recover property cannot be called a perfect and exclusive right. I cannot agree that a right to

property vested in Calder and wife, in consequence of the decree of the 21st of March, 1783, disapproving of the will of Morrison, the grandson. If the will was valid, Mrs. Calder could have no right, as heiress of Morrison, the physician; but if the will was set aside, she had an undoubted title.

The resolution, or law, alone, had no manner of effect on any right whatever vested in Calder and wife. The resolution, or law, combined with the new hearing, and the decision in virtue of it, took away their right to recover the property in question. But when combined they took away no right of property vested in Calder and wife; because the decree against the will (21st March, 1783) did not vest in or transfer any property to them.

I am under a necessity to give a construction, or explanation, of the words, "ex post facto law," because they have not any certain meaning attached to them. But I will not go farther than I feel myself bound to do; and if I ever exercise the jurisdiction, I will not decide any law to be void, but in a very clear

case.

I am of opinion that the decree of the supreme court of errors of Connecticut be affirmed, with costs.

PATERSON, J.-The constitution of Connecticut is made up of usages, and it appears, that its legislature have, from the beginning, exercised the power of granting new trials. This has been uniformly the case till the year 1762, when this power was, by a legislative act, imparted to the superior and county courts. But the act does not remove or annihilate the preëxisting power of the legislature in this particular; it only communicates to other authorities a concurrence of jurisdiction as to the awarding of new trials. And the fact is, that the legis exercised this power since the

lature have, in two instances, passing of the law in 1762. They acted in a double capacity, as a house of legislation, with undefined authority, and also as a court of judicature in certain exigencies. Whether the latter arose from the indefinite nature of their legislative powers, or in some other way, it is not necessary to discuss. From the