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 regulated 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 Rival factions, in their efforts to crush each other, have superseded all the forms, and suppressed all the sentiments of justice; while attainders, on the principle of retaliation and proscription, have marked all the vicissitudes of party triumph. The temptation to 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, 1st, if the act of the legislature of Connecticut was a judicial act, it is not within the words of the constitution; and 2d, even if it was a legislative act, it is not within the meaning of the prohibition.

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 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.

3 Dal. 400.

MARTIN v. HUNTER'S LESSEE.

FEBRUARY TERM, 1816.

[1 Wheaton's Reports, 304-382.]

IN 1791 Hunter commenced a suit against Martin in one of the district courts of Virginia, where, three years afterwards, a judgment was given in favor of Martin. Hunter appealed to the court of appeals, the highest court of law in Virginia, and in 1810 obtained a reversal of the judgment of the district court. Martin then brought the case into the supreme court of the United States, by writ of error, and obtained a judgment reversing that of the court of appeals of Virginia, in 1813. Thereupon a mandate issued to the court of appeals requiring the judgment of the supreme court to be carried into effect. This the court of appeals declined doing, upon the ground that the act of congress allowing appeals from that court to the supreme court was not in pursuance of the constitution of the United States. A writ of error was taken out by Martin, founded upon this refusal to obey the mandate of the supreme court; and in February term, 1816, the opinion of the court was delivered by Judge Story, as follows:

supreme

THIS is a writ of error from the court of appeals of Virginia, founded upon the refusal of that court to obey the mandate of this court, requiring the judgment rendered in this very cause, at February term, 1813, to be carried into due execution. The following is the judgment of the court of appeals rendered on the mandate: "The court is unanimously of opinion that the appellate power of the supreme court of the United States does not extend to this court, under a sound construction of the constitution of the United States; that so much of the twentyfifth section of the act of congress to establish the judicial

courts of the United States, as extends the appellate jurisdiction of the supreme court to this court, is not in pursuance of the constitution of the United States; that the writ of error in this cause was improvidently allowed under the authority of that act; that the proceedings thereon in the supreme court were coram non judice, in relation to this court, and that obedience to its mandate be declined by the court."

The questions involved in this judgment are of great importance and delicacy. Perhaps it is not too much to affirm, that, upon their right decision, rest some of the most solid principles which have hitherto been supposed to sustain and protect the constitution itself. The great respectability, too, of the court whose decisions we are called upon to review, and the entire deference which we entertain for the learning and ability of that court, add much to the difficulty of the task which has so unwelcomely fallen upon us. It is, however, a source of consolation, that we have had the assistance of most able and learned arguments to aid our inquiries; and that the opinion which is now to be pronounced has been weighed with every solicitude to come to a correct result, and matured after solemn deliberation.

Before proceeding to the principal questions, it may not be unfit to dispose of some preliminary considerations which have grown out of the arguments at the bar.

The constitution of the United States was ordained and established, not by the states in their sovereign capacities, but, emphatically, as the preamble of the constitution declares, by "the people of the United States." There can be no doubt that it was competent to the people to invest the general government with all the powers which they might deem proper and necessary, to extend or restrain these powers according to their own good pleasure, and to give them a paramount and supreme authority. As little doubt can there be that the people had a right to prohibit to the states the exercise of any powers which were, in their judgment, incompatible with the objects of the general compact; to make the powers of the state governments,