United States held, that an act of the legislature of Connecticut, granting a new trial, after the time for appealing had elapsed, was constitutional, although the act was judicial in its nature. It has by some been supposed that this decision was inconsistent with the decisions in New Hampshire, Maine, and Vermont, above referred to, and that the doctrine of those cases had been virtually overruled. We apprehend, however, such is not the fact. The decision in that case was placed upon the ground, that it was the usage in that state so to legislate, which was to be taken as evidence of the fundamental law, it at that time having no written constitution. Mr. Justice Patterson, in his opinion, puts the case on that distinct ground. He held, the constitution of Connecticut was made up of usages, and it appeared that its legislature had, from the beginning, exercised the power of granting new trials. This had been uniformly the case till the year 1762, when this power was, by legislative act, imparted to the superior and county courts. But the act did not remove or annihilate the pre-existing power of the legislature in this particular, it only communicated to other authorities a concurrence of jurisdiction, as to the awarding of new trials. And the fact was, that the legislature had, in two instances, exercised this power since the passage of the law of 1762. They acted in a double capacity; as a house of legislation, with undefined authority, and also as a court of judicature in certain exigencies. Whether the latter arose from the indefinite nature of legislative powers, or in some other way, it was not necessary to discuss. From the best information which he had been able to collect on this subject, it appeared that the legislature, or general court of Connecticut, originally possessed and exercised all legislative, executive, and judicial authority; and that from time to time they dis

tributed the two latter in such manner as they thought proper, but without parting with the general superintending power, or the right of exercising the same whenever they should judge it expedient. It was sufficient that they had, on certain occasions, exercised judicial authority from the commencement of their civil polity. This usage made up part of the constitution of Connecticut, and the court were bound to consider it as such, unless it was inconsistent with the constitution of the United States. True it was, that the awarding of new trials fell properly within the province of the judiciary, but if the legislature of Connecticut had been in the uninterrupted exercise of this authority in certain cases, the court must, in such cases, respect their decisions, as flowing from competent jurisdiction or constitutional organ. They might, in the present instance, consider the legislature of the state as having acted in their customary judicial capacity, if so, that was an end of the question. For, if the power thus exercised came more properly within the description of a judicial than of a legislative power, and if by usage or the constitution, which in Connecticut were synonymous terms, the legislature of that state acted in both capacities; then, in the case before the court, it would be fair to consider the awarding of a new trial as an act emanating from the judiciary side of the department. The decision in that case was also put on the same ground by the court in Connecticut. (a)

§ 366. We have in a previous chapter considered the nature of retrospective laws, and have endeavored to show, that the legislature, irrespective of any constitutional restriction, cannot pass such laws having a retroactive effect, affecting vested rights, in the legitimate

(a) 2 Root's R. 350.

exercise of its constitutional powers. (a) We are next to consider what acts are and what acts are not deemed retrospective, within the meaning of constitutional restrictions upon legislative power, in this particular. The constitution of New Hampshire declares, " Retrospective laws are highly injurious, oppressive and unjust. No such law, therefore, should be made, either for the decision of civil causes or the punishment of offences."(b)

§ 367. Under this clause in the constitution, it has been determined that a retrospective law for the punishment of an offence, within the meaning of this clause, was one which was made to punish an act previously done, or to increase the punishment of such act, or in some way to change the rule of law in relation to its punishment, to the prejudice of him who committed it. In other words, it was such a law as would, under the inhibition against ex post facto laws, be deemed strictly ex post facto. It must be a law establishing a new rule for the punishment of an act already done. The object of this clause was to protect individuals against unjust and oppressive punishment. On the one hand, it inhibited the power to make laws retroactive for the punishment of offences, and on the other, leaves uninhibited the power to make all such laws as it should deem expedient to mitigate the degree of punishment to be inflicted.(c)

§ 368. The question has arisen as to what is a "retrospective law made for the decision of civil causes,' within the meaning of this clause. The language in this clause is far more broad and comprehensive than that used in the preceding clause. The former seems designed only for the protection of one of the parties, that is, the citizen; the latter is designed for the protection

(a) See ante, § 149, et sequitur.

(6) Ante, § 82, p. 127.

(c) Wourt v. Winnick, 3 N. H. R. 476.

of both parties to a civil action. It protects both parties from any interference of the legislature whatever, in any civil cause, by a retrospective law. A law for the decision of a cause is a law prescribing the rules by which it is to be decided-a law enacting the general principles by which the decision is to be governed. A retrospective law for the decision of civil causes, is a law prescribing the rules by which existing causes are to be decided, upon facts existing previous to the making of the law. Instead of being rules for the decision of civil causes, as laws are in their very essence, retrospective laws for the decision of civil causes are, in their nature, a judicial determination of the rules, by which existing causes shall be settled, upon existing facts. They may relate to the grounds of the action, or the grounds of the defence, both of which it seems are equally protected by this clause. On the one hand, it is not within the constitutional competency of the legislature to annul by statute, any legal ground, on which a pending action is founded, or to create any new bar, by which such action may be defeated; on the other hand, no new ground for the support of an existing action can be created by statute, nor any legal bar to any such action be taken away. A statute which attempts either of the above things is a retrospective law for the decision of civil causes, within the prohibition of this article in the bill of rights.(a)

§ 369. Richardson, Ch. J., in the case last cited, speaking of this clause, says; "It was intended to prohibit the making of any law prescribing new rules for the decision of existing causes, so as to change the ground of the action, or the nature of the defence. We think that such was the intention, because it was fit and proper that the prohibition should go to that extent. Retro

(a) Woart v. Winnick, 3 N. H. R. 477.

spective laws of that kind deserved to be denounced, as they are denounced in our constitution, as highly injurious, oppressive, and unjust. They have been denounced by the most sound and intelligent jurists and statesmen in every age. We think that such was the intention, because the establishment of new rules for the decision of existing cases, is in its nature an exercise of judicial power, a power which the 37th article of the bill of rights declares ought to be kept separate from, and independent of, the legislative power; and because the union of the legislative and judicial power in the same branch of government is, in its essence, tyranny. We think such was the intention, because it is most manifestly injurious, oppressive, and unjust, that after an individual has, upon the faith of existing laws, brought his action, or prepared his defence, the legislature should step in, and, without any examination of the circumstances of the case, arbitrarily repeal the law upon which the action or defence has been rested. Such an exercise of power is, in our opinion, wholly irreconcilable with the spirit of our institutions, and with the great principles of freedom, upon which they are founded."

§ 370. In the case last cited it was held, that an act of the legislature repealing a statute of limitation, with respect to all actions pending at the time of the repeal, and which were barred by the statute, was a retrospective law for the trial of civil causes, and repugnant to the constitution of New Hampshire, and hence wholly inoperative. In another case,(a) a statute, purporting to grant a new trial in a civil cause, after a final judgment had been rendered, was held to be a retrospective law, within the meaning of this clause in the bill of rights. § 371. In the case of the Society, &c. v. Wheeler et

(a) Merrill v. Sherbrune, 1 N. H. R. 199.