James Wilson, Early American Land Companies, and the Original Meaning of 'Ex Post Facto Law'

Abstract

Many commentators have questioned whether the interpretation of the term “ex post facto law” in Calder v. Bull, which restricted that term to retroactive criminal laws, is historically accurate. Most prominently, over seventy years ago Professor William Winslow Crosskey argued not only that this “criminal-only” reading of “ex post facto law” departed from the original understanding of the Constitution, but also that Justices Chase, Iredell, and Paterson adopted that erroneous interpretation in order to assist James Wilson, who by 1798 had fled from his creditors and needed retroactive bankruptcy protection. Drawing on new evidence related to legal disputes involving three land companies with which Wilson was associated, which eventually gave rise to Hollingsworth v. Virginia, Fletcher v. Peck, and Johnson v. M’Intosh, this Article contends that Crosskey was likely correct about the original meaning of “ex post facto law,” but likely mistaken about the Justices’ motivations in Calder. In fact, Wilson’s land speculation, conflicts of interest, and aggressive pursuit of his companies’ interests were probably a source of embarrassment to his fellow Justices. Nonetheless, there is a clear discrepancy between the construal of “ex post facto law” in Calder and how that term was widely used in the founding era, which merits further investigation. A better historical understanding of these land disputes also raises new doubts about the reliability of the discussion of ex post facto laws in James Madison’s Notes of the Debates in the Federal Convention.

The Article is my contribution to a symposium on James Wilson that was hosted by the Georgetown Center for the Constitution in December, 2017.