S. and R. M. held land in Luzerne County, Pennsylvania, in
common under a Connecticut title. A division of the land was made
between them, and S. became the tenant of M. of his part of the
land thus set off in severalty, under a lease, to be terminated on
a notice of one year. S. afterwards obtained a Pennsylvania title
to the land leased to him by M. and on a trial in an ejectment for
the land brought by M against S., the Court of Common Pleas of
Bradford County, Pennsylvania, held that S., having held the land
as tenant of M., could not set up a title against his landlord.
Upon a writ of error to the Supreme Court of Pennsylvania in 1825,
it was held that the relation between landlord and tenant could not
exist between persons holding under a Connecticut title. The
Legislature of Pennsylvania, on 8 April, 1826, passed an act
declaring that
"The relation of landlord and tenant should exist and be held as
fully and effectually between Connecticut settlers and Pennsylvania
claimants as"
between citizens of the commonwealth.
The case came again before the Supreme Court of Pennsylvania,
and the judgment of the Court of Common Pleas of Bradford County in
favor of M., the landlord, was affirmed, that court having decided
that the act of assembly of 8 April, 1826 was a constitutional act
and did not impair the validity of any contract. S. brought a writ
of error to this Court, claiming that the act of the Assembly of
Pennsylvania of 8 April, 1826, was unconstitutional.
Held
that the act was constitutional.
Objections to the jurisdiction of this Court have been
frequently made on the ground that there was nothing apparent on
the record to raise the question whether the court from which the
case had been brought had decided upon the constitutionality of a
law, so that the case was within the provisions of the 25th section
of the Judiciary Act of 1789. This has given occasion for a
critical examination of the section, which has resulted in the
adoption of certain principles of construction applicable to it.
One of those principles is that if the repugnancy of a statute of a
state to the Constitution of the United States was drawn into
question or if that question was applicable to the case, this Court
has jurisdiction of the cause although the record should not in
terms state a misconstruction of the Constitution of the United
States or that the repugnancy of the statute of the state to any
part of that Constitution was drawn into question.
There is nothing in the Constitution of the United States which
forbids the Legislature of a state to exercise judicial
functions.
There is no part of the Constitution of the United States which
applies to a state law which divested rights vested by law in an
individual, provided its effect be not to impair the obligation of
a contract.
In the case of
Fletcher v.
Peck, 6 Cranch 87, it was stated by THE CHIEF
JUSTICE that it might well be doubted whether the nature of society
and of government do not prescribe some limits to the legislative
power, and he asks
"if any be prescribed, where are they to be found, if the
property of an individual,
Page 27 U. S. 381
fairly and honestly acquired, may be seized without
compensation?"
It is nowhere intimated in that opinion that a state statute
which divests a vested right is repugnant to the Constitution of
the United States.
In 1784 or 1785, Elisha Satterlee, the father of the plaintiff
in error, and Elisha Matthewson, the husband of the defendant in
error, the defendant in error being the sister of Elisha Satterlee,
went to a large body of land in Lezerne County, Pennsylvania, part
of which was the land in controversy, and both took possession of
the same under, as is believed, a supposed title from the
Susquehanna Company. They worked on the lands in partnership, the
same lying on both sides of the Susquehanna River, until 1790, when
it was agreed that Matthewson, who had a house on the west side of
the river, should occupy the land before held in common, on that
side, and become the tenant of Satterlee for his portion of the
land on the said west side of the river, and Elisha Satterlee moved
on the lands on the east side, on precisely the same terms; that is
that he should become the tenant of Matthewson for his portion of
the land on the said east side of the river. By this arrangement
each became possessed in severalty of the particular portion of the
lands thus allotted to him, and the tenant to the other of portions
of the land before held in common, and it was expressly agreed that
either of the parties might put an end to the tenancy at the end of
anyone year, and in that case each was to be put into possession of
his own lands.
In 1805, Elisha Matthewson died, having bequeathed by his will
to his widow during life and to his children after her death the
interest he had in the said land. Elisha Satterlee repeatedly,
after Matthewson's death, acknowledged the original bargain and
that he was a tenant of Matthewson's part, but he wished to buy it;
he wished to give other lands for it, &c., but his sister could
only sell for life, and her children were minors. In 1810, she
built a house on part of the tract and put a tenant in it, but her
brother would not give her possession of the part he had in
cultivation. In 1811, she made application to the land office
of
Page 27 U. S. 382
Pennsylvania, and on 7 January, 1812, took out a warrant in her
name in trust for her children, and had the land surveyed, and
obtained a patent for it from the Commonwealth of Pennsylvania. She
stated in her application an improvement made by her husband in
1785, and paid interest to the state on the purchase moneys from
the date of the improvement. After his sister's warrant, survey,
and return, Elisha Satterlee purchased a Pennsylvania title
commencing in 1769, and consummated by a patent from the
commonwealth in 1781, which he alleged covered the land in
question, but he directed the deed to be made to his son, J. F.
Satterlee, the plaintiff in error, and 1813 an ejectment was
instituted in the name of the son against the father, in pursuance
of a plan of the father's to release him from the situation of
tenant to his sister. By a law of Pennsylvania then in existence
but since repealed, a rule of reference might be entered the same
day the writ was taken out, and by diligence a plaintiff might
obtain a report of arbitrators, which had the effect of a judgment,
before the return day of the writ.
This proceeding was, by means of the father's waiving all
objections as to time and notice, so carried on as that the son not
only had judgment, but a writ of possession before the return of
the writ.
J. F. Satterlee then gave to his father a lease for life of the
land for the consideration of one dollar. Elizabeth Matthewson
instituted an ejectment. J. F. Satterlee, in 1817, procured himself
to be entered co-defendant in the suit, and, his father being dead,
is now sole defendant.
On the trial of the cause, the defendant made title under an
application of John Stoner of 3 April, 1769. Stoner conveyed to Mr.
Slough, who in 1780 conveyed to Joseph Wharton. A patent issued to
Wharton in 1781, and he in April, 1812, conveyed to the defendant.
The judge of the Court of Common Pleas of Bradford County
instructed the jury that if they found the ejectment brought by the
son of J. F. Satterlee, in whose name the conveyance was taken, was
actually instituted by the father, though in his son's name as
agent for himself, and that the suit was all a trick, and so
Page 27 U. S. 383
conducted on purpose to prevent his sister from interfering or
being heard that he was still her tenant as much as if no such
proceeding had taken place. But if the son was the real purchaser
and the suit was instituted and conducted
bona fide, and
the lease to the father during life for a dollar a year was
bona fide, that then E. Satterlee having been evicted by
due course of law, might take a lease from him who recovered, and
in that case the relation of landlord and tenant between him and
his sister was at an end, and the cause must be decided upon the
respective titles of the parties. But if they found him still a
tenant, he could not set up against his landlord an adverse title,
purchased during his life. But he must restore his possession to
his landlord, and might then institute a suit on the title he had
purchased, and if it was the best, recover from his former
landlord. The verdict and judgment were for Mrs. Matthewson.
The case was removed by writ of error to the Supreme Court of
Pennsylvania. On the argument of this cause before the supreme
court, it was decided -- "That the relation between landlord and
tenant could not exist between persons holding under a Connecticut
title." And that court, in 1825, reversed the judgment of the
common pleas and awarded a
venire facias de novo.
Immediately after this decision, on 8 April, 1826, the
Legislature of Pennsylvania passed an act, by which it was
enacted
"
That the relation of landlord and tenant should exist and
be held as fully and effectually between Connecticut settlers and
Pennsylvania claimants, as between other citizens of the
commonwealth."
The ejectment depending in the Court of Common Pleas of Bradford
County between the plaintiff in error and the defendant, again came
on for trial after the law of April 8, 1826, on 10 May, 1826, and
the judge gave in charge to the jury as follows, after stating the
above recited act of assembly, to-wit:
"It is a general principle of law, founded on wise policy, that
the tenant shall not controvert the title of his landlord and
prevent the recovery of his possession by showing that the title of
the landlord is defective. Among
Page 27 U. S. 384
the exceptions to this general rule, the Supreme Court of
Pennsylvania has decided that when the landlord claimed (as the
plaintiff claimed on the former trial of this cause) under a
Connecticut title, the case should form one of the excepted cases.
The legislature has thought proper to enact the above recited law,
and by it we are bound. And if the plaintiff in all other respects
should be found entitled to a recovery, the mere claiming through a
Connecticut title would not now deprive her of her right to a
recovery."
A verdict and judgment were obtained in favor of the defendant
in error, Elizabeth Matthewson.
To the charge of the judge, which is inserted at large and sent
up with the record, the defendant excepted, and the judge signed
and sealed a bill of exceptions.
A writ of error was taken by the defendant to the Supreme Court
of Pennsylvania, and the following were among the errors assigned,
to-wit:
The court erred in charging,
1. That by the laws of Pennsylvania, the plaintiff's testator
could lease the land, and that the rights of landlord do extend to
him, he having claimed under a Connecticut title.
2. That the Act of 8 April, 1826, gives a right of recovery, and
does away the force of the law, as declared by the supreme court in
this case.
On 1 July, 1827, the supreme court, after argument, affirmed the
judgment of the court of common pleas. And on 6 July, 1827, a
petition and prayer for reversal was filed by John F. Satterlee,
the plaintiff in error, who survived Elisha Satterlee, on the
ground that the said court had decided the said act of assembly to
be constitutional and valid, though he had insisted that he ought
not to be affected and barred of recovery by the said act, for that
the said act was not valid, and was repugnant to the Constitution
of the United States.
Page 27 U. S. 407
MR. JUSTICE WASHINGTON delivered the opinion of the Court.
This is a writ of error to the Supreme Court of Pennsylvania. An
ejectment was commenced by the defendant in error in the court of
common pleas against Elisha Satterlee to recover the land in
controversy, and upon the motion of the plaintiff in error, he was
admitted as her landlord, a defendant to the suit. The plaintiff,
at the trial, set up a title under a warrant dated 10 January,
1812, founded upon an improvement in the year 1785, which it was
admitted was under a Connecticut title, and a patent bearing date
19 February, 1813.
The defendant claimed title under a patent issued to Wharton in
the year 1781, and a conveyance by him to John F. Satterlee in
April, 1812. It was contended on the part of the plaintiff that
admitting the defendant's title to be the oldest and best, yet he
was stopped from setting it up in that suit, as it appeared in
evidence that he had come into possession as tenant to the
plaintiff sometime in the year
Page 27 U. S. 408
1790. The court of common pleas decided in favor of the
plaintiff upon the ground just stated, and judgment was accordingly
rendered for her. Upon a writ of error to the supreme court of that
state, that court decided in June, 1825, 13 Serg. & R. 133,
that by the settled law of Pennsylvania, the relation of landlord
and tenant could not subsist under a Connecticut title, upon which
ground the judgment was reversed and a
venire facias de
novo was awarded.
On 8 April, 1826, and before the second trial of this cause took
place, the legislature of that state passed a law in substance as
follows,
viz.,
"That the relation of landlord and tenant shall exist and be
held as fully and effectually between Connecticut settlers and
Pennsylvania claimants as between other citizens of this
commonwealth on the trial of any cause now pending or hereafter to
be brought within this commonwealth, any law or usage to the
contrary notwithstanding."
Upon the retrial of this cause in the inferior court in May,
1826, evidence was given conducing to prove, that the land in
dispute was purchased of Wharton by Elisha Satterlee, the father of
John F. Satterlee, and that by his direction, the conveyance was
made to the son. It further appeared in evidence that the son
brought an ejectment against his father in the year 1813, and by
some contrivance between those parties, alleged by the plaintiff
below to be merely colorable and fraudulent, for the purpose of
depriving her of her possession, obtained a judgment and execution
thereon, under which the possession was delivered to the plaintiff
in that suit, who immediately afterwards leased the premises to the
father for two lives at a rent of one dollar per annum. The
fairness of the transactions was made a question on the trial, and
it was asserted by the plaintiff that notwithstanding the eviction
of Elisha Satterlee under the above proceedings, he still continued
to be her tenant.
The judge, after noticing in his charge the decision of the
supreme court in 1825 and the act of assembly before recited,
stated to the jury the general principle of law which prevents a
tenant from controverting the title of his
Page 27 U. S. 409
landlord by showing it to be defective, the exception to that
principle where the landlord claims under a Connecticut title, as
laid down by the above decision, and the effect of the act of
assembly upon that decision, which act he pronounced to be binding
on the court. He therefore concluded, and so charged the jury, that
if they should be satisfied from the evidence, that the
transactions between the two Satterlees before mentioned were
bona fide, and that John F. Satterlee was the actual
purchaser of the land, then the defendants might set up the
eviction as a bar to the plaintiff's recovery as landlord. But that
if the jury should be satisfied that those transactions were
collusive, and that Elisha Satterlee was in fact the real
purchaser, and the name of his son inserted in the deed for the
fraudulent purpose of destroying the right of the plaintiff as
landlord, then the merely claiming under a Connecticut title would
not deprive her of her right to recover in that suit.
To this charge, of which the substance only has been stated, an
exception was taken, and the whole of it is spread upon the record.
The jury found a verdict for the plaintiff, and judgment being
rendered for her, the cause was again taken to the supreme court by
a writ of error.
The only question which occurs in this cause which it is
competent to this Court to decide is whether the statute of
Pennsylvania which has been mentioned, of 8 April, 1826, is or is
not objectionable on the ground of its repugnancy to the
Constitution of the United States? But before this inquiry is gone
into, it will be proper to dispose of a preliminary objection made
to the jurisdiction of this Court upon the ground that there is
nothing apparent on this record to raise that question or otherwise
to bring this case within any of the provisions of the 25th section
of the Judiciary Act of 1789.
Questions of this nature have frequently occurred in this Court,
and have given occasion for a critical examination of the above
section, which has resulted in the adoption of certain principles
of construction applicable to it, by which the objection now to be
considered may without much difficulty be decided.
15 U. S. 2 Wheat.
363;
17 U. S. 4 Wheat.
311;
Page 27 U. S. 410
12 Wheat. 117. One of those principles is that if it
sufficiently appears from the record itself that the repugnancy of
a statute of a state to the Constitution of the United States was
drawn into question or that that question was applicable to the
case, this Court has jurisdiction of the cause under the section of
the act referred to, although the record should not, in terms,
state a misconstruction of the Constitution of the United States or
that the repugnancy of the statute of the state to any part of that
Constitution was drawn into question.
Now it is manifest from this record not only that the
constitutionality of the statute of 8 April, 1826, was drawn into
question and was applicable to the case, but that it was so applied
by the judge and formed the basis of his opinion to the jury, that
it should find in favor of the plaintiff if in other respects she
was entitled to a verdict. It is equally manifest that the right of
the plaintiff to recover in that action depended on that statute,
the effect of which was to change the law as the supreme court had
decided it to be in this very case in the year 1825. 13 S. & R.
133.
That the charge of the judge forms a part of this record is
unquestionable. It was made so by the bill of exceptions, and would
have been so without it, under the statute of 24 February, 1806, of
that state, which directs that in all cases in which the opinion of
the court shall be delivered, if either party require it, it is
made the duty of the judges to reduce the opinion, with their
reasons therefor, to writing and to file the same of record in the
cause. In the case of
Downing v. Baldwin, 1 Serg. & R.
298, it was decided by the Supreme Court of Pennsylvania that the
opinion so filed becomes part of the record and that any error in
it may be taken advantage of on a writ of error without a bill of
exceptions.
It will be sufficient to add that this opinion of the court of
common pleas was, upon a writ of error, adopted and affirmed by the
supreme court, and it is
the judgment of that court upon
the point so decided by the inferior court, and not the
reasoning of the judges upon it, which this Court is now
called upon to revise.
We come now to the main question in this cause. Is the
Page 27 U. S. 411
act which is objected to, repugnant to any provision of the
Constitution of the United States? It is alleged to be so by the
counsel for the plaintiff in error for a variety of reasons, and
particularly, because it impairs the obligation of the contract
between the State of Pennsylvania and the plaintiff who claims
title under her grant to Wharton as well as of the contract between
Satterlee and Matthewson, because it creates a contract between
parties where none previously existed by rendering that a binding
contract which the law of the land had declared to be invalid, and
because it operates to divest and destroy the vested rights of the
plaintiff. Another objection relied upon is that in passing the act
in question, the legislature exercised those functions which belong
exclusively to the judicial branch of the government.
Let these objections be considered. The grant to Wharton
bestowed upon him a fee simple estate in the land granted, together
with all the rights, privileges, and advantages which, by the laws
of Pennsylvania, that instrument might legally pass. Were any of
those rights, which it is admitted vested in his vendee or alience,
disturbed, or impaired by the act under consideration? It does not
appear from the record, or even from the reasoning of the judges of
either court, that they were in any instance denied or even drawn
into question. Before Satterlee became entitled to any part of the
land in dispute under Wharton, he had voluntarily entered into a
contract with Matthewson by which he became his tenant under a
stipulation that either of the parties might put an end to the
tenancy at the termination of any one year. Under this new
contract, which, if it was ever valid, was still subsisting and in
full force at the time when Satterlee acquired the title of
Wharton, he exposed himself to the operation of a certain principle
of the common law which estopped him from controverting the title
of his landlord by setting up a better title to the land in himself
or one outstanding in some third person.
It is true that the supreme court of the state decided, in the
year 1825, that this contract, being entered into with a person
claiming under a Connecticut title, was void, so that
Page 27 U. S. 412
the principle of law which has been mentioned did not apply to
it. But the legislature afterwards declared by the act under
examination that contracts of that nature were valid and that the
relation of landlord and tenant should exist and be held effectual
as well in contracts of that description as in those between other
citizens of the state.
Now this law may be censured, as it has been, as an unwise and
unjust exercise of legislative power; as retrospective in its
operation; as the exercise by the legislature of a judicial
function; and as creating a contract between parties where none
previously existed. All this may be admitted, but the question
which we are now considering is does it impair the obligation of
the contract between the state and Wharton or his alienee? Both the
decision of the supreme court in 1825 and this act operate not upon
that contract, but upon the subsequent contract between Satterlee
and Matthewson. No question arose or was decided to disparage the
title of Wharton or of Satterlee as his vendee. So far from it that
the judge stated in his charge to the jury that if the transactions
between John F. Satterlee and Elisha Satterlee were fair, then the
elder title of the defendant must prevail and he would be entitled
to a verdict.
We are then to inquire whether the obligation of the contract
between Satterlee and Matthewson was impaired by this statute. The
objections urged at the bar and the arguments in support of them
apply to that contract if to either. It is that contract which the
act declared to be valid in opposition to the decision of the
supreme court, and admitting the correctness of that decision, it
is not easy to perceive how a law which gives validity to a void
contract can be said to impair the obligation of that contract.
Should a statute declare, contrary to the general principles of
law, that contracts founded upon an illegal or immoral
consideration, whether in existence at the time of passing the
statute or which might hereafter be entered into, should
nevertheless be valid and binding upon the parties, all would admit
the retrospective character of such an enactment, and that the
effect of it was to create a contract between parties
Page 27 U. S. 413
where none had previously existed. But it surely cannot be
contended that to create a contract and to destroy or impair one
mean the same thing.
If the effect of the statute in question be not to impair the
obligation of either of those contracts, and none other appears
upon this record, is there any other part of the Constitution of
the United States to which it is repugnant? It is said to be
retrospective. Be it so; but retrospective laws which do not impair
the obligation of contracts or partake of the character of
ex
post facto laws are not condemned or forbidden by any part of
that instrument.
All the other objections which have been made to this statute
admit of the same answer. There is nothing in the Constitution of
the United States which forbids the legislature of a state to
exercise judicial functions. The case of
Ogden v.
Blackledge came into this Court from the circuit court of the
United States, and not from the Supreme Court of North Carolina,
and the question whether the act of 1799, which partook of a
judicial character, was repugnant to the Constitution of the United
States did not arise, and consequently was not decided. It may
safely be affirmed that no case has ever been decided in this Court
upon a writ of error to a state court which affords the slightest
countenance to this objection.
The objection, however, which was most pressed upon the court
and relied upon by the counsel for the plaintiff in error was that
the effect of this act was to divest rights which were vested by
law in Satterlee. There is certainly no part of the Constitution of
the United States which applies to a state law of this description,
nor are we aware of any decision of this or of any circuit court
which has condemned such a law upon this ground provided its effect
be not to impair the obligation of a contract, and it has been
shown that the act in question has no such effect upon either of
the contracts which have been before mentioned.
In the case of
Fletcher v. Peck, it was stated by THE
CHIEF JUSTICE that it might well be doubted whether the nature of
society and of government do not prescribe some limits to the
legislative power, and he asks, "if any be
Page 27 U. S. 414
prescribed, where are they to be found if the property of an
individual, fairly and honestly acquired, may be seized without
compensation?" It is nowhere intimated in that opinion that a state
statute which divests a vested right is repugnant to the
Constitution of the United States, and the case in which that
opinion was pronounced was removed into this Court by writ of error
not from the supreme court of a state, but from a circuit
court.
The strong expressions of the Court upon this point in the cases
of
Vanhorne's Lessee v. Dorance and
Society for the
Propagation of the Gospel v. Wheeler, were founded expressly
on the Constitution of the respective states in which those cases
were tried.
We do not mean in any respect to impugn the correctness of the
sentiments expressed in those cases or to question the correctness
of a circuit court, sitting to administer the laws of a state, in
giving to the constitution of that state a paramount authority over
a legislative act passed in violation of it. We intend to decide no
more than that the statute objected to in this case is not
repugnant to the Constitution of the United States, and that unless
it be so, this Court has no authority, under the 25th section of
the Judiciary Act, to reexamine and to reverse the judgment of the
Supreme Court of Pennsylvania in the present case.
That judgment therefore must be
Affirmed with costs.
MR. JUSTICE JOHNSON.
I assent to the decision entered in this cause, but feel it my
duty to record my disapprobation of the ground on which it is
placed. Could I have brought myself to entertain the same view of
the decision of the Supreme Court of Pennsylvania with that which
my brethren have expressed, I should have felt it a solemn duty to
reverse the decision of that court as violating the Constitution of
the United States in a most vital part.
What boots it that I am protected by that Constitution from
having the obligation of my contracts violated if the legislative
power can create a contract for me or render binding upon me a
contract which was null and void in its creation? To give efficacy
to a void contract is not, it
Page 27 U. S. 415
is true,
violating a contract, but it is doing
infinitely worse -- it is advancing to the very extreme of that
class of arbitrary and despotic acts which bear upon individual
rights and liabilities, and against the whole of which the
Constitution most clearly intended to interpose a protection
commensurate with the evil.
And it is very clear to my mind that the cause here did not call
for the decision now rendered. There is another and a safe and
obvious ground upon which the decision of the Pennsylvania court
may be sustained.
The fallacy of the argument of the plaintiff in error consists
in this, that he would give to the decision of a court on a point
arising in the progress of his cause the binding effect of a
statute or a judgment; that he would in fact restrict the same
court from revising and overruling a decision which it has once
rendered, and from entering a different judgment from that which
would have been rendered in the same court had the first decision
been adhered to. It is impossible in examining the cause not to
perceive that the statute complained of was no more than
declarative of the law on a point on which the decisions of the
state courts had fluctuated, and which never was finally settled
until the decision took place on which this writ of error is sued
out.
The decision on which he relies to maintain the invalidity of
the Connecticut lease was rendered on a motion for a new trial; all
the right it conferred was to have that new trial, and it even
appears that before that new trial took place, the same court had
decided a cause which in effect overruled the decision on which he
now rests, so that when this act was passed, he could not even lay
claim to that imperfect state of right which uniform decisions are
supposed to confer. The latest decision in fact, which ought to be
the precedent if any, was against his right.
It is perfectly clear when we examine the reasoning of the
judges on rendering the judgment now under review that they
consider the law as unsettled, or rather as settled against the
plaintiff here at the time the act was passed, and if so, what
right of his has been violated? The act does no more than what the
courts of justice had done and
Page 27 U. S. 416
would do without the aid of the law -- pronounce the decision on
which he relies as erroneous in principle, and not binding in
precedent.
The decision of the state court is supported under this view of
the subject without resorting to the portentous doctrine (for I
must call it portentous) that a state may declare a void deed to be
a valid deed, as affecting individual litigants on a point of
right, without violating the Constitution of the United States. If
so, why not create a deed or destroy the operation of a limitation
act after it has vested a title?
The whole of this difficulty arises out of that unhappy idea
that the phrase "
ex post facto" in the Constitution of the
United States was confined to criminal cases exclusively -- a
decision which leaves a large class of arbitrary legislative acts
without the prohibitions of the Constitution. It was in
anticipation of the consequences that I took occasion in the
investigations on the bankrupt question to make a remark on the
meaning of that phrase in the Constitution. My subsequent
investigations have confirmed me in the opinion then delivered, and
the present case illustrates its correctness; I will subjoin a note
to this opinion devoted to the examination of that question.
This cause came on to be heard on the transcript of the record
from the Supreme Court of the State of Pennsylvania for the Middle
District of Pennsylvania, and was argued by counsel, on
consideration whereof it is considered, ordered, and adjudged by
this Court, that the judgment of the said supreme court for the
State of Pennsylvania in this cause be and the same is hereby
affirmed with costs.
* The case in which the meaning of the phrase "
ex post
facto" in the Constitution came first to be considered, was
that of
Calder v. Bull,
3 Dall. 386. Mrs. Calder claimed as heiress to one Morrison; Bull
and wife claimed by devise, and the question was
devisavit vel
non. The Court of Probate in Connecticut, having jurisdiction
of the question, decided against the will, but there was a right to
appeal from that decision to the Supreme Court of Errors, provided
it was prosecuted within eighteen months. It was not prosecuted
within the limited time, and thereby it was contended the decision
of the court of probate became final against the will, and ought to
have quieted Calder and wife in possession of the property. 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. 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 opinion: "The case," he says,
"appears to me to be clear of all difficulties, taken either
way; if the act is a judicial act, it is not touched by the federal
Constitution, and if it is a legislative 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 was precisely that in case of
Calder v. Bull.
That the cause did not go off on the ground that the phrase
"ex post facto" in the Constitution was inapplicable to
civil acts, is distinctly expressed also by Judge Iredell. "Upon
the whole," says, he,
"though there cannot be a case in which an
ex post
facto law in criminal matters is requisite or justifiable, yet
in the present instance the objection does not arise, because 1. If
the act of the Legislature of Connecticut was a judicial act, it is
not within the words of the Constitution, and 2. even if it was a
legislative act, it is not within the meaning of the
prohibition."
In the commencement of the opinion, he expresses himself
thus:
"From the best information to be collected, relative to the
Constitution of Connecticut, it appears that the Legislature of
that state has been in the uniform and uninterrupted exercise of a
general superintending power over its courts of law by granting new
trial."
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 exercise of
judicial, not of
legislative, authority."
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 enter upon it hypothetically, commencing with the words "But let
us for a moment suppose." Judge Paterson also says
"True it is that the awarding of new trials falls properly
within the province of the judiciary, but if the Legislature of
Connecticut have been in the uninterrupted exercise of this
authority in certain 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 has having acted in
their customary judicial capacity."
Judge Chase express himself thus:
"Whether the legislature of any state can revise and correct by
law a decision of its courts of justice, 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 question does not go so far."
And again,
"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, decided that
the resolution or law in question was not contrary to either
their state or the federal Constitution."
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 probate 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
power when so delegated? All the rights claimed or 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 law 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
demonstrations 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 well as 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 think it will not be doubted by anyone who has considered the
remarks made by the learned judges on the translation and
construction of the phrase
ex post facto that some
misapprehension must have prevailed as to the parts of speech of
which it is composed. By applying the English preposition
after so often to the translation of
post in the
sentence, I am warranted in believing that the latter word was
mistaken for the Latin preposition
post, whereas it is
unquestionably an abbreviation of the adjective
postremo,
as will appear by reference to the maxims of Sir Francis Bacon, and
comparing the 8th in the table with the 8th 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 attached to the
phrase in its common use and application. But the phrase is of such
antiquity and so generally used in its abridged form that its
origin and derivation, as is the case with a vast proportion of
every language, has been nearly forgotten.
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 qua minus, is used at the present date (L. 34, tit. 4, law
15). The antiquity of its use among the English jurists may be
fairly inferred from its being engrafted 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., c. 8, ยง 2, which required a registry of
contracts for south-sea stock, to be made by 29 September, 1721,
and if not so registered, they were declared void. W. bought of M.,
stock to a large amount, for which an assignment was duly executed,
dated 19 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
avoided 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 Ld.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 has 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 writings, 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 vol. 2, p. 641. The author is
animadverting upon bills of attainder, bills of pains and
penalties, and other laws of that class, and his words are
these:
"It must be admitted that in all penal statutes passed
ex
post facto, except where the innovation mollifies the rigor of
the criminal code, justice wears her sternest aspect."
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 the cause?
Judge Blackstone is by no means conclusive, if any authority at
all upon the subject. Arch. & Christ., Black. 41, old edit., p.
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 necessary of this
attribute of a law, he illustrates 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 commentatory, 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
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 certain are, without being exclusively
so.
The "Federalist" also is referred to for an 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 application to criminal cases. But of the four that
have been cited, it will be found that those of Massachusetts and
Delaware do not contain the phrase; and, as if sensible of the
general application of its meaning to all laws giving effects and
consequences to past actions which were not attached to them when
they occurred, simply give a description of the laws they mean to
prohibit, without resorting to the aid of a quaint phrase which can
only be explained by an extended periphrasis.
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 restraints I have enumerated were
unnecessary and therefore improper, for both of them are
retrospective."
Judge Paterson says
"Where is the necessity of 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
further. 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.
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. The case of
a legislature declaring a void deed to be a valid deed is a
striking one to 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 uphill in order to bring within 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
opinions 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 their 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.
The following instances of its ancient general use will show
that if acquired, it must be in modern times, and therefore the
proof ought to be the more accessible.
In Sir. F. Bacon's Maxims, Max. 8:
Estimatio 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 praesumptionem
vel causam remotam ex post facto non fulcitur. And all the
examples furnished on this maxim are cases of civil rights and
liberties.
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."
Ibid., 68. "Where a deed good in its
creation shall become void
ex post facto; by razure,
&c."
Ibid., 20. "Where a deed is void
ab
initio, and where it doth become void by matter
ex post
facto."
Godolphin's View of the Admiralty 109.
"And the performance of something
ex post facto within
the realm, in pursuance of a preceding contract, &c., 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, 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 Paterson that the arrangement of the
distinct members of this section in the Constitution necessarily
points to the restrictive meaning which he assigns to this phrase.
But with all deference, I must contend that if anything is to be
deducted 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 provision against a greater;
in leaving uncontrolled the exercise of a power to create the
contracts of parties while it restricts 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 law. But I see not how those who think
differently from me will be able to advocate it unless by an
amendment of the Constitution.
If the correct exposition of "the equity of a statute" be "a
construction made by the 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 Inst. 24,
or as another author defines it,
"verborum legis directio
effeciem cum una res solumnodo legis cavetur verbis, ut omnis alia
in aequali genere eisdem caveatur verbis," Plowd. 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 cannot claim
the preeminence of an adjudged case upon this point, and if
adjudged, was certainly not sustained by reason of authorities.