John Jay, the nation’s first U.S. Supreme Court chief justice. Hulton Archive/Getty Images.

       CourtSpeak: Calder v. Bull Ex Post Facto Law Case (1798)

      Justice Samuel Chase (unanimous ruling): “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 announced. 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.”

      Justice William Paterson: “The words ex post facto, when applied to a law, have a technical meaning, and, in legal phraseology, refer to crimes, pains, and penalties…. Here the meaning, annexed to the terms ex post facto laws, unquestionably refers to crimes, and nothing else.”

      Justice James Iredell: “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.”

      Justice William Cushing: “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 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.”

      In what case did the Supreme Court define ex post facto laws?

      The U.S. Supreme Court first defined ex post facto laws in Calder v. Bull (1798), a case examining whether the Connecticut legislature violated the rights of heirs (Calder and his wife) when it passed a law ordering a new hearing in a probate court. After the new hearing, the probate court ruled in favor of other heirs (Bull and his wife). The Calders argued that the Connecticut legislature’s act of ordering a new hearing in probate court constituted an ex post facto law. An ex post facto law is one that makes conduct a crime even though the conduct was not a crime when it originally occurred. In other words, an ex post facto law criminalizes conduct retroactively.

      The U.S. Supreme Court unanimously ruled 4–0 that the Connecticut law was not an ex post facto law because it affected only civil law, not criminal law. Ex post facto laws, according to the justices, referred to laws that retroactively increased punishment for crimes or made certain innocent conduct a crime.

       CourtSpeak: Hylton v. United States Tax Case (1796)

      Justice Samuel Chase (unanimous ruling): “I think, an annual tax on carriages for the conveyance of persons, may be considered as within the power granted to Congress to lay duties…. It seems to me, that a tax on expence is an indirect tax; and I think, an annual tax on a carriage for the conveyance of persons, is of that kind; because a carriage is a consumeable commodity; and such annual tax on it, is on the expence of the owner.”

      Justice William Paterson: “A tax on carriages, if apportioned, would be oppressive and pernicious. How would it work? In some states there are many carriages, and in others but few. Shall the whole sum fall on one or two individuals in a state, who may happen to own and possess carriages? The thing would be absurd, and inequitable.”

      Justice James Iredell: “I am clearly of opinion, this is not a direct tax in the sense of the Constitution, and, therefore, that the judgment ought to be affirmed.”

      The four justices hearing the case—Samuel Chase, William Paterson, James Iredell, and William Cushing—all wrote separate opinions, though Cushing’s was very short. This conformed with the Court’s existing practice of issuing seriatim opinions, or a series of opinions—each justice issuing his own separate opinion. Chief Justice Oliver Ellsworth and James Wilson did not participate. In the late 1790s, Wilson was beset with financial problems, including being jailed twice for his debts.

      In what decision did the Court address direct and indirect taxes?

      The Court unanimously ruled 3–0 in Hylton v. United States (1796) that Congress had the power to tax carriages without apportioning the taxes among the various states. Daniel Hylton was cited for not paying taxes on his 125 stipulated carriages. He contended that the tax was unconstitutional because Article II, Section 9, of the U.S. Constitution provides that no direct taxes “shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.” This provision means that direct taxes could not be imposed unless they were apportioned among the states based on population. Interestingly, at the Constitutional Convention of 1787, a delegate had asked for a definition of a direct tax and no one answered. This meant that the definition of a direct tax was unclear. The Supreme Court reasoned that the tax on carriages was an indirect tax not subject to the apportionment requirement. The Court reasoned that if a tax could not easily be apportioned among the states, then it was most likely an indirect tax. Because the Court held that a tax on carriages was not a direct tax, it concluded that the tax could be imposed lawfully.

       CourtSpeak: Ware v. Hylton State Law vs. U.S. Treaty Case (1796)

      Justice Samuel Chase (unanimous ruling): “It is the declared will of the people of the United States that every treaty made, by the authority of the United States, shall be superior to the Constitution and laws of any individual State; and their will alone is to decide. If a law of a State, contrary to a treaty, is not void, but voidable only by a repeal, or nullification by a State Legislature, this certain consequence follows, that the will of a small part of the United States may controul or defeat the will of the whole. The people of America have been pleased to declare, that all treaties made before the establishment of the National Constitution, or laws of any of the States, contrary to a treaty, shall be disregarded.”

      Justice William Paterson: “No act of any state legislature, and no payment made under such act into the public coffers, shall obstruct the creditor in his course of recovery against his debtor. The act itself is a lawful