In the strict order of the argument that we are pursuing, I should now turn to the judicial power of construction; but, closely connected with the subject which we have just considered, is one which I can in no other place so fitly discuss, that of retroactive or retrospective statutes, the power to pass which has been frequently denied on the ground that they conflict with true notions of justice and right. I shall here examine the question, and then finally arrive at the subject of interpretation. Retrospective or Retroactive Statutes.-A statute 'which takes away or impairs any vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect to transactions or considerations already past, is to be deemed retrospective or retroactive.* The power of a legislature to pass laws having such an effect, has often been denied by philosophical writers. Puffendorf says, "A law can be repealed by the lawgiver; but the rights which have been acquired under it while it was in force, do not thereby cease. It would be an act of absolute injustice, to abolish with a law all the effects which it had produced."+ The Civil Law says, "Leges et constitutiones futuris certum est dare formam negotiis, non ad facta præterita revocari, nisi nominatim et de præterito tempore et adhuc pendentibus negotiis cautum sit." From the civil law, Bracton adopted the same maxim. "Nova constitutio futuris formam debet imponere, non præteritis." Lord Bacon says, in his quaint and poetical style, but in a more guarded manner: "Leges quæ retrospi * Society for Prop. of Gospel vs. Wheeler, 2 Gallison, 105. Cod., L. Tit. xiv. § 7. ciunt raro, magna cum cautione, adhibendo; neque enim placet Janus in legibus. Cavendum tamen est ne convellantur res judicata. Leges declaratorias ne ordinato, nisi in casibus ubi leges cum justitia retrospi cere possint." And one of the standard writers of our law says, it is in general true that no statute is to have a retrospect beyond the time of its commencement.† From text-writers, the maxim has been incorporated into codes of law. The French code contains a positive provision that laws are made only for future cases, and can have no retrospective effect. "The law directs for the future cases only; it has no retrospective effect." So, the constitution of New Hampshire § declares, "Retrospective laws are highly injurious, oppressive, and unjust. No such laws should, therefore, be made, either for the decision of civil cases or the punishment of offenses." The principle has, indeed, been generally adhered to with great steadiness, both in England and in this country. So in a case under the statute of frauds, which, as originally passed (29 Car. II. c. 3), enacted that no action should be brought on any parol promise, on and after the 24th June, 1677, an effort was made to extend its operation to a promise made in 1676; but it was held that the statute was not to receive a retroactive effect; the court saying that it would be a great mischief to explain it otherwise, to annul all promises by parol before that time, upon which men had trusted and depended, reckoning them good and * De Aug. Scient., Lib. viii. c. 3; Aphor. 47, 51. + Bacon, Abr. Statute. La Loi ne dispose que pour l'avenir, elle n'a point d'effet retroactif.— Code Civil, § 2. § Part i. § 23. valid in law; and judgment was given for the plaintiff.* So again, in an action for a penalty in not paying a stamp duty. After verdict, the defendant moved to stay judgment, urging that he was entitled to relief on the ground that he had paid the duty under a clause of the act which discharged parties who had incurred penalties if they paid their duties before a certain time; and the question being whether the act related to actions commenced before its passage, the King's Bench denied the motion, Lord Mansfield saying, "It can never be the true construction of this act, to take away these vested rights and punish the innocent pursuer with costs."+ "All laws," says Blackstone, "should be made to commence in futuro, and be notified before their commencement."+ The effort of the English courts appears, indeed, always to be to give the statutes of that kingdom a prospective effect only, unless the language is so clear and imperative as not to admit of doubt. "The principle," says the English Court of Exchequer, "is one of such obvious convenience and justice, that it must always be adhered to in the construction of statutes, unless in cases where there is something on the face of the enactment putting it beyond doubt that the legis lature meant it to operate retrospectively."§ principle may have been lost sight of in some cases, but has, on the whole, been steadily adhered to. So, where a statute (8 and 9 Vic., c. 109, 8 Aug. 1845) en This *Helmore vs. Shuter, 2 Show. 17. + Couch q. tam vs. Jeffries, 4 Burr, 2460. Com. i. p. 46. Moon vs. Durden, 2 Exchequer R. 22. Towler vs. Chatterton, 6 Bing. 258; Freeman ts. Moyes, 1 Ad. & Ell. 338; Pickup vs. Wharton, 2 C. & M. 401; Grant vs. Kemp, id. 636. acted that all contracts and agreements by way of gaming or wagering, shall be null and void, and that no suit shall be brought or maintained in any court upon any wager, it was held that the statute was not to receive a retroactive construction so as to defeat a suit on a wager commenced before the statute passed.* But it also appears to be clearly settled in England, that the rule to give statutes a prospective operation, is one of construction merely; that it will yield to the intention of the legislature, if clear beyond doubt; and that the only question is, whether the retroactive intention is sufficiently expressed;† and this is in entire harmony with the English doctrine which we have already considered, that Parliament is supreme, and that there is no constitutional check on the supremacy of the law-making power. In this country, the same opposition to giving statutes a retroactive effect, has been manifested; and such is the general tenor of our decisions. There are, indeed, here, two classes of retroactive laws absolutely forbidden by the federal Constitution. That great charter of our rights and liberties declares (Art. i., Sec. 10) that no State shall pass any ex post facto law, or law impairing the obligation of contracts. We shall have occasion hereafter to consider this clause more particularly; but we may here notice that the term ex post facto applies only to criminal laws. Many of the State constitutions also contain clauses prohibiting ex post facto laws; but this phrase has, I believe, * Moon vs. Durden, 2 Exch. 22; and also, Edmonds vs. Lawley, 6 M. & W. 285; and Ashburnham, 2 Atk. 36. + Moon vs. Durden, 2 Exch. 22, per Parke, B. Calder and wife vs. Bull and wife, 3 Dall. 386; Dash vs. Van Kleeck, 7 Johnson, p. 477. been uniformly held to apply only to criminal legislation. And we have already noticed that the obligation of contracts does not include the remedy. With these modifications, however, the power of the federal tribunals has been steadily exercised, and State laws of a criminal nature having a retroactive effect, or laws in any way impairing the obligation of contracts, are held to be void, and their operation arrested by the government of the United States. It is, however, equally well settled, that a law is not unconstitutional under the Constitution merely because it is retrospective in its terms. A conflict arose in the State of Pennsylvania, as to lands held under what were called Connecticut titles; and in 1825, on a case growing out of this question, the Supreme Court of Pennsylvania held that the relations between landlord and tenant could not exist between persons holding under such a title. Immediately after this decision, the legislature of Pennsylvania passed an act by which it was enacted that the relation of landlord and tenant should exist, and be held as fully between Connecticut settlers and Pennsylvania claimants, as between other citizens of the commonwealth; and this act, the Supreme Court, in a subsequent case, held to be retrospective in its effect. A writ of error was taken to the Supreme Court of the United States; but the judgment was affirmed, the court saying that the act did not impair the obligation of the contract. "It is said to be retrospective. Be it so; but retrospective laws which do not impair the obligation of contracts or partake the character of ex post facto laws, are not condemned or forbidden by any part of the Constitution."* * Satterlee vs. Matthewson, 2 Peters, 380. |