Samuel Carpenter, Acting Executor, and Charles Wilkins Short and Cleves Short, Executors Named and Residuary Legatees In the Will of William Short, Deceased Plaintiffs In Error v. the Commonwealth of Pennsylvania

• Decision Date: 01 December 1854
• Citation: 17 How. 456,58 U.S. 456,15 L.Ed. 127
• Parties: SAMUEL H. CARPENTER, ACTING EXECUTOR, AND CHARLES WILKINS SHORT AND J. CLEVES SHORT, EXECUTORS NAMED AND RESIDUARY LEGATEES IN THE WILL OF WILLIAM SHORT, DECEASED, PLAINTIFFS IN ERROR v. THE COMMONWEALTH OF PENNSYLVANIA
• Court: U.S. Supreme Court

58 U.S. 456

17 How. 456

15 L.Ed. 127

SAMUEL H. CARPENTER, ACTING EXECUTOR, AND CHARLES

WILKINS SHORT AND J. CLEVES SHORT, EXECUTORS NAMED AND

RESIDUARY LEGATEES IN THE WILL OF WILLIAM SHORT,

DECEASED, PLAINTIFFS IN ERROR

v. THE COMMONWEALTH OF PENNSYLVANIA.

December Term, 1854

THIS case was brought up from the supreme court of Pennsylvania by a writ of error issued under the 25th section of the judiciary act.

The case is stated in the opinion of the court.

It was argued by Mr. Ewing, and Mr. Hart, for the plaintiffs in error, and by Mr. Hood, and Mr. Scott, for the defendant.

The following notice of these points on behalf of the plaintiffs in error, upon which the decision of this court turned, is taken from the brief of Mr. Ewing:——

2. That the act of 1850, professes to be explanatory of the act of 1826, does not help it in the least. If a direct act, levying a tax or penalty on past cases of collateral inheritance, would be ex post facto within the meaning of the constitution of the United States, so is this; as if the act of 1826 provided for the punishment of crimes, a declaratory law of 1850 could not extend its provisions to acts committed prior to the declaratory law, no more than an original law could punish a past fact as a crime.

3. We have here then a retroactive law, which takes the property of an individual to the use of the State, because of a fact which had occurred prior to the passage of the law. And

we suppose it quite immaterial whether it is seized to the use of the State, by the name of tax, fine, penalty, or forfeiture, so that it is seized by virtue of a lex post factum.

This court has decided, in cases which raised the question, that the clause in the 10th section, 1st article of the constitution of the United States, which provides that no State shall pass any 'ex post facto law,' does not prohibit the States from passing laws which shall transfer the property of A to B, for reasons, ex post facto, that their power in this respect, between persons, is unlimited and unrestrained. But that it does prohibit the States from making past acts penal, which, when performed, were attended with no punishment or penalty; and it equally prohibits them from increasing any punishment or penalty by laws passed after the fact; the scope and intent of the restriction, as construed and explained by the court, being to prohibit the States from punishing the persons or seizing upon the property of individuals, by reason of acts committed or perforned previous to the enactment of the law. It is to protect the individual from the direct action of the State against his person or property for any past cause, but not to limit the power of the State in adjusting or distributing property among individuals for like cause.

Thus a State may say by a law of to-day, that A shall have the lands and goods of B, because of some fact done between A and B yesterday, which did not then transfer or pledge or incumber either lands or goods; the protection of property, as between individuals, being left to the constitution and laws of the State, except only where a contract intervenes, the validity of which they may not impair. But the State cannot by a law of to-day forfeit to itself the lands or goods of B, be ause of some fact done or suffered by B yesterday, and which did not then by law work a forfeiture or make his lands or goods the property of the State. This would be, according to the construction of the court ex post facto, within the prohibition of the constitution of the United States. And I suppose it to be quite immaterial whether the past fact, by reason of which the property of an individual is seized to the use of the State by a subsequent law, lex post factum, be called a crime or not, or whether the seizure be denominated fine, levy, or forfeiture. This is mere form—'words, words'—haeret in cortice. The substance is, the seizure of the lands or funds of an individual to the use of the State by a law operating on a past fact. If the property of an individual cannot be seized to the use of the State, because of a fact which an after law declares criminal, may it be so for the same fact if the law do not at all characterize the fact, or if it pronounce it meritorious? This would be

absurd. One State legislature enacts: That every member of the immediately preceding legislature who voted against the passage of the act to establish common schools shall be deemed guilty of a misdemeanor, and shall forfeit to the State, to be applied to said common schools, one twentieth part of his lands and goods. Such a law would be ex post facto within the meaning of the constitution, as expounded by this court.

The legislature of another State enacts: That every member of the immediately preceding legislature who voted against the act for the establishment of common schools shall be, and he is hereby, declared to be free from all blame or censure therefor, and there shall be assessed upon the property of every such person one twentieth part of its value, as a public tax to be applied to the use of schools. If the first be unconstitutional, so is this likewise. It does not, it is true, make the fact criminal by an affer law, but it attaches to it a penalty, the same in its consequence as if it had called it a crime. In substance and effect the provisions are the same, and equally within the prohibition of the constitution.

If I be correct in this, the constitution of the United States does not apply alone in cases where an act, innocent when done, is by a subsequent law declared to be a crime, and punished as such, put also, to cases where a past fact, giving no right to the State to the property of the individual, is by an after...