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Calder v. Bull. 3 D. of justice would possess a power to declare it so. Sir William
Blackstone, having put the strong case of an act of parlia[ *399] ment which * should authorize a man to try his own cause,
explicitly adds, that even in that case, “there is no court that has power to defeat the intent of the legislature, when couched in such evident and express words as leave no doubt whether it was the intent of the legislature or no.” 1 Bl. Comm. 91.
In order, therefore, to guard against so great an evil, it has been the policy of all the American States, which have, individually, framed their state constitutions since the revolution, and of the people of the United States, when they framed the federal constitution, to define with precision the objects of the legislative power, and to restrain its exercise within marked and settled boundaries. If any act of congress, or of the legislature of a State, violates those constitutional provisions, it is unquestionably void; though, I admit, that as the authority to declare it void is of a delicate and awful nature, the court will never resort to that authority, but in a clear and urgent case. If, on the other hand, the legislature of the Union, or the legislature of any member of the Union, shall pass a law, within the general scope of their constitutional power, the court cannot pronounce it to be void, merely because it is, in their judgment, contrary to the principles of natural justice. The ideas of natural justice are regu. lated by no fixed standard; the ablest and the purest men have differed upon the subject; and all that the court could properly say, in such an event, would be, that the legislature, possessed of an equal right of opinion, had passed an act which, in the opinion of the judges, was inconsistent with the abstract principles of natural justice. There are then but two lights in which the subject can be viewed : 1st. If the legislature pursue the authority delegated to them, their acts are valid. 2d. If they transgress the boundaries of that authority, their acts are invalid. In the former case, they exercise the discretion vested in them by the people, to whom alone they are responsible for the faithful discharge of their trust; but in the latter case, they violate a fundamental law, which must be our guide, whenever we are called upon as judges to determine the validity of a legislative act.
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 Calder v. Bull. 3 D.
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 proscriptions, have marked all the vicissitudes of party triumph. The temptation to [ * 400 ] 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.
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 exigencies. Highways are run through private grounds. Fortifications, light-houses, and other public edifices, are necessarily 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.
Upon the whole, though there cannot be a case in which an ex post facto law in criminal matters is requisite, or justifiable, for Providence never can intend to promote the prosperity of any country by bad means, yet, in the present instance the objection does not arise : Because, first, if the act of the legislature of Connecticut was a judicial act, it is not within the words of the constitution; and, second, even if it was a legislative act, it is not within the meaning of the prohibition.
Wilson v. Daniel. 3 D.
CushiNG, J. The case appears to me to be clear of all difficulty,
taken either way. If the act is a judicial act, it is not touched [*401 ] 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.
Judgment affirmed. 2 P. 627; 8 P. 88; 7 H. 283; 10 H. 395.
Wilson v. DANIEL.
3 D. 401.
The original citation to the defendant in error, signed by the judge, must be returned. Where the only certificate by the clerk, in verification of the record below, was: “ Copy.
Teste, W. M., clerk," it was held that the verification was insufficient. If there is judgment against the defendant for $200,000, the penalty of the bond declared on,
to be discharged on payment of $1,800, the amount found by the jury to be the damages for the breach of the condition of the bond, the matter in dispute exceeds $2,000, within
the meaning of the judiciary act, and a writ of error lies to this court. i Such a judgment is final, and a writ of error may be brought, though the record does not
show that one of the pleas was in any way disposed of.
The original citation to the defendant in error was omitted, and only a copy accompanied the record, with an affidavit subjoined, that the deponent “ did, on the 24th of September, 1796, deliver to Thomas Daniel, within named, a citation, whereof the above is a true copy.” There was no certificate of the judge, or clerk of the court, that the record was returned in obedience to the writ, though at the end of the paper, purporting to be the record, the clerk subjoined the following minute: “ Copy. Teste, William Marshal, clerk.”
[ * 402 ] *The Court were clearly of opinion, that the verification
of the record was defective; and that they could not consistently with the judicial act, dispense with a return of the original citation, subscribed by the judge himself. By agreement the cause
was argued on the record as it stood. [ * 403 ] *The circumstances, which now became material on
the record, were as follow: It appeared by the declaration, that an action of debt was brought in the circuit court by Thomas Daniel, a British subject, against William Wilson and others, upon a bond dated the 11th of October, 1791, for the penal sum of 60,0001.; that the bond had been taken, as an indemnity,
Wilson v. Daniel. 3 D.
from the defendants below, in an attachment brought by them against the plaintiff in a state court; and that the attachment was dismissed by the court, and the plaintiffs adjudged to pay the costs. The present plaintiff laid his damages, in consequence of the attachment, at 20,0001.
The sole defendant below, William Wilson, the other defendants being dead, or not being arrested on the process, pleaded, 1. Performance of the condition of the bond; 2. That no costs had been awarded to the plaintiff below, in the attachment suit, nor had any damages been recovered by him against the parties, for suing out the attachment.
The plaintiff below replied, 1. That the defendant had not performed the condition of the bond; 2. That the court did award costs in the attachment suit to the plaintiff below, which he was ready to verify by a transcript of the record; and 3. The plaintiff demurred to so much of the defendant's plea as respects damages.
The defendant below rejoined, 1. As to the judgment for costs in the attachment suit, nul tiel record; and, 2. As to the replication upon the question of damages, joinder in demurrer.
The record then proceeds; “ the parties by their attorneys, being fully heard, it seems to the court that the said second plea of the defendant, and the matter therein contained, are not sufficient in law to bar the plaintiff from having and maintaining his action against the said defendant. Therefore it is considered, that judgment be entered for the plaintiff on his demurrer to that plea."
“ And at another day, to wit, &c., came the parties, &c., and thereupon also came a jury, &c. And now, &c., the jury aforesaid returned into court, and brought in their verdict in these words : • We of the jury find for the plaintiff the debt in the declaration mentioned to be discharged by the payment of $1,800 damages.'
*“ Therefore it is considered by the court, that the plain- [ * 404 ] tiff recover against the defendant 60,0001. of the value of $200,000, his debt aforesaid, and his costs by him about his suit in this behalf expended. And the said defendant in mercy, &c. But the judgment is to be discharged by the payment of the said $1,800, and the costs.”
At the present term, as well as in February term, 1797, two questions were made and argued, independent of the objection to the form of issuing and returning the writ of error. 1. Whether the judgment below was so defective that a writ of error would not lie on it, inasmuch as no judgment was given upon the plea of nul tiel record. 2. Whether the supreme court had jurisdiction of the cause, inasmuch as the real and operative judgment of the circuit court
Wilson v. Daniel. 3 D.
was only for $1,800, and the judicial act provides, that there shall be no removal of a civil action from the circuit court into the supreme court, unless the matter in dispute exceeds the sum or value of $2,000. On the first point no opinion was given by the court at the former argument, but on the second point, Chase, Paterson, and Cushing, JJ., concurred in considering the judgment as a judgment at common law, for the penalty of the bond, and therefore that the court had jurisdiction; Wilson J., dissented, and Iredell, J., who had presided in the circuit court, declined taking a part in the decision. The second point was however, re-argued, at the instance of E. Tilghman, who was answered by Lee, and Ingersoll, and the opinion of the court was given to the following effect.
ELLSWORTH, C. J. There have been two exceptions taken to the record in the present case. 1. That the judgment of the inferior court is so defective, that a writ of error will not lie upon it. It is evident, however, that the judgment is not merely interlocutory, but is in its nature final, and goes to the whole merits of the case. Though imperfect and informal, it is a judgment on which an execution could issue, and as the defendant below might be thus injured by it, we are unanimously of opinion that he is entitled to a writ of error.
2. The second exception is, that the judgment is not for a sum of sufficient magnitude to give jurisdiction to this court. On this exception there exists a diversity of sentiment, but it is the prevailing opinion, that we are not to regard the verdict, or judgment, as the rule for ascertaining the value of the matter in dispute between the parties. By the judicial statute, s. 22, (1 U. S. Stat. at Large, 84,)
it is provided that certain decisions of the circuit courts, [ * 405 ] in certain * cases, may be reversed on a writ of error in
the supreme court; but it is declared that the matter in dispute must exceed the sum or value of $2,000. To ascertain then the matter in dispute, we must recur to the foundation of the ori. ginal controversy; to the matter in dispute when the action was instituted. The descriptive words of the law point emphatically to this criterion, and in common understanding the thing demanded, as in the present instance, the penalty of a bond, and not the thing found, constitutes the matter in dispute between the parties.
The construction, which is thus given, not only comports with every word in the law, but enables us to avoid an inconvenience, which would otherwise affect the impartial administration of justice. For, if the sum, or value, found by a verdict, was considered as the rule to ascertain the magnitude of the matter in dispute, then, when