Bill Long 9/26/05
Exploring a Neglected Case
One of the reasons I don't take much time reading Constitutional Law textbooks is that they simply don't give you enough information truly to understand a case or they just site a case for a (usually narrow) ground and then leave it at that. For example, in this significant case, only four Justices wrote opinions. According to the Judiciary Act of 1789, the Court was to be composed of six Justices. The case says that the CJ (Ellsworth) didn't hear the case. Where and who was the sixth? Well, you can consult a list of Justices to see that James Wilson retired August 21, 1798 and that he wasn't replaced (Bushrod Washington) until 1799. Calder was heard during "August Term 1798." So, we have solved that mystery. The opinions of the Court were delivered seriatim, with Justice Cushing not having much to say. Thus, this unanimous decision (4-0) really boiled down to three opinions: those by Chase, Iredell, and Paterson.
In addition, this case is almost universally treated as a case illustrating the proposition that the prohibition of passing ex post facto laws by legislatures only offends the Federal Constitution if it is a criminal ex post facto law. Textbooks also often mention the natural law remarks of Chase and Iredell's disagreement with these remarks. This is jurisprudence-lite, to be sure, but I will mention the comments in the next essay. But no one mentions another interesting point--about a legislature's ability to be "judicial" in its operation. And, no one really lays out the facts with any care. Let me start with a few facts that can be gleaned from the case and reasonable inferences therefrom.
A Few Facts
Dr. Normand Morrison had a 1779 will under which Mrs. Bull was to take (Chase's opinion says that Morrison was the grandson, but I don't know the family relations. A search of the Colonial Connecticut records discloses another very signifcant probate battle in which two Normand Morrisons were involved--also spelled Norman Morison--but this was in 1762. Could it be that probate problems, like physical features, are transferable from generation to generation?). The will was disapproved by the Probate Court in Hartford on 3/21/1793. I suppose that Mrs. and Mr. Bull had a certain time to contest this decision, but for some reason they didn't. As a result of their inaction, Mrs. Calder (relation?) would take under the CT intestate succession laws.
So, after the time to appeal had passed, the Bulls decided to do what people who are cut off from legal remedy often do: go to the Legislature. The 1795 Legislature granted a new hearing for the will in the Hartford Probate Court (what was the nature of the law or resolution passed to enable this?), and the will this time was probated. Thus, the Bulls were restored as beneficiaries under the will. The Calders, being scalded, decided to appeal this decision all the way to the US Supreme Court. Their major argument was that a property right had vested in the Calders as a result of the will's failure to be probated on 3/21/93 and the Bulls subsequent inaction.
Approaching the Legal Issues
Two of the three Justices who wrote opinions (Iredell and Paterson) mentioned two grounds on which they would affirm the decisions below. The first had to do with the Legislature's apparent "judicial" action in setting aside the disapproval of the will and the second dealt with whether the legislative decision resulted in an ex post facto law. Justice Paterson made the point that it appears that the legislature of Connecticut, throughout its history until 1762, exercised the sole right to grant new trials. However, in 1762 the colonial legislature gave this right also to courts. I spent some time searching the Colonial Connecticut records, a worthwhile endeavor, and found what may have been that 1762 enactment adverted to by Justice Paterson. One act I found provides:
"That for the future no defendant or defendants defaulted as aforesaid shall have liberty to revive any such action unless he or they shall come into court and move for a trial on or before the second day of the sitting of said court and pay down to the adverse party the cost to that time arisen; any law, usage or custom to the contrary notwithstanding" (CCL, vol. 12, p. 8).
What does Paterson infer from such a law? "But the act does not remove or annihilate the preexisting power of the Legislature, in this particular; it only communicates to other authorities a concurrence of jurisdiction, as to the awarding of new trials." If this was the law Paterson was referring to, I think he is in error; indeed the revival of an action seems dependent on coming into court and asking for it--rather than an "either/or" situation of going to the Legislature or the Courts. But, Paterson, as well as Iredell, argued that the Legislature was not abandoning its power; it was just conferring a concurrence of jurisdiction. Paterson mentions that the CT Legislature had, in two instances between 1762 and 1798 exercised their power to award a new trial. Thus, the first ground of decision which the three Justices agreed on (except for Chase) was that the CT Legislature had and could act as a judicial body and thus, the granting of a new trial was within their power. The "uninterrupted flow" of legislative authority supported the notion that they could do the act complained of by the Calders. Justice Iredell notes that such a custom might appear "strange" but concedes that it appears to have been the "uniform, uninterrupted, habit" of the Legislature to exercise a "general superintending power over its courts of law."
Let's pause for a second on this one. What would a federal court say today with respect to a state legislature's ability not simply to vacate a court's decision but to, as it were, allow for and even order a new trial? I don't know my law well enough to run through all the possible scenarios regarding this, but it is the first issue to mention in Calder v. Bull, an issue that never is mentioned in law schools or in textbooks, but one that might provoke more interesting legal speculation than the "real issues," to which I now turn.
Copyright © 2004-2008 William R. Long