524
Opinion of the Court
footnotes in Justice Chase's opinion, he listed examples of various Acts of Parliament illustrating each of the four categories. See 3 Dall., at 389, nn. *, †, ‡, [bardbl].13 Each of these examples is exactly the same as the ones Wooddeson himself used in his treatise. See 2 Wooddeson 629 (case of the Earl of Strafford); id., at 634 (case of Sir John Fenwick); id., at 638 (banishments of Lord Clarendon and of Bishop Atter-bury); id., at 639 (Coventry Act).
Calder's four categories, which embraced Wooddeson's formulation, were, in turn, soon embraced by contemporary scholars. Joseph Story, for example, in writing on the Ex Post Facto Clause, stated:
"The general interpretation has been, and is, . . . that the prohibition reaches every law, whereby an act is declared a crime, and made punishable as such, when it was not a crime, when done; or whereby the act, if a crime, is aggravated in enormity, or punishment; or whereby different, or less evidence, is required to convict an offender, than was required, when the act was committed." 3 Commentaries on the Constitution of the United States § 1339, p. 212 (1833).
James Kent concurred in this understanding of the Clause:
"[T]he words ex post facto laws were technical expressions, and meant every law that made an act done before the passing of the law, and which was innocent when done, criminal; or which aggravated a crime, and
legal proof" created when only one witness was available but "a statute then lately made requiring two witnesses" had been in effect); id., at 638 (describing "acts of parliament, which principally affect the punishment, making therein some innovation, or creating some forfeiture or disability, not incurred in the ordinary course of law"); id., at 639 (referring to instances where "the legislature . . . imposed a sentence more severe than could have been awarded by the inferior courts"). Cf. n. 9, supra.
13 The instances cited were the case of the Earl of Strafford, the case of Sir John Fenwick, the banishments of Lord Clarendon and of Bishop Atterbury, and the Coventry Act.
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