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lie under. There is no aspect in which it can be viewed, that does not present a strange anomaly, alike conflicting with the sworn duty of the judge, the vested rights of persons, and the constitution. What is the difference between such a course, and appointing a judge over the head of the legitimate and constitutional one, to decide the cause? None can be perceived in principle; though, in fact, the consequences, in the case before us, may be most injurious and fatal to rights."

§ 374. In Wally's Heirs v. Kennedy(a) it was made a question, whether an act which declared that certain suits should be barred if it was proved that it was prosecuted in trust for another, was within this constitutional restriction respecting retrospective laws. The court, however, did not distinctly pass upon the question. as to how far the act was effected by that part of this clause in the constitution which declared, "that no retrospective laws shall be passed." It however declared, that it did not omit to pass upon it from any delicacy or serious doubt entertained in that particular instance, but from the paramount importance of the question arising upon statutes infringing upon the constitution more clearly than did the act then under consideration. It remarked, in substance, that the act of 1827 proposed to legislate out of court actions of ejectment, lawfully brought before its passage, by letting in parol proof of an outstanding trust created by contract long before the act was passed; which contract, for any thing appearing to the contrary on this record, was lawful when made, and for the first time declared otherwise by this act; the letting in, and in the grade of evidence, unheard of proof in the pending action of ejectment, and declaring the effect of that proof was, to its mind, very dangerous legislation,

(a) 2 Yerger's R. 555.

and it felt it a duty not to pass entirely unnoticed this point, for fear inferences might be drawn that it thought the act consistent with the clause of the constitution prohibiting retrospective laws and laws impairing the obligation of contracts. Its impression was directly the other way. In the case of Fisher's Negroes v. Dobbs,(a) it was held, that the statute of Tennessee of 1829, which authorized a bill to be filed by slaves, by their next friend, to emancipate them, although it applied to cases that arose before its passage, was not a retrospective law within the meaning of this clause of the constitution.

§ 375. In Vermont, although there is no constitutional prohibition in the state constitution, it has been held that the enactment of retrospective laws was not within the constitutional power of the legislature. In Ward v. Barnard,(b) an act of the legislature releasing a debtor, imprisoned on execution at the suit of a party, from his imprisonment, and freeing his body from arrest for a given time, was held null and void. One ground of this decision was, that the section of the constitution which declared the powers of the legislature, and which gave to it all the powers necessary for the legislature of a free and sovereign state, did not confer this power, as no legislature, as such, had any other than the power of making laws: by the section in the constitution granting powers to it, no other than a law making power was conferred. That the act in question was not a law, for a law was a prescribed rule of civil conduct. Such was a correct and the universally approved definition of municipal law. So far as an act of the legislature was retrospective, or ex post facto, it was not a prescribed rule

(4) 6 Yerger's R. 19.

(¿) 1 Aiken's R. 121.

of conduct. This act was retrospective, as it related to past events, and retroactively affected a vested right of the creditor, who had elected to take satisfaction of his debtor in that particular manner. The same principle was adopted in subsequent cases in the same court. (a) § 376. In Lyman v. Mower, the court said, that the decision in the case of Ward v. Barnard, did not proceed upon the ground that the bond was a contract, within the provision of the constitution of the United States prohibiting the state legislatures from passing acts impairing the obligation of contracts, but upon the ground, that the act was an enactment in a particular case, affecting private rights, was retrospective in its operation, and on general principles of law void. That the decision was in conformity with opinions expressed by several successive councils of censors, composed of men of the first respectability for intelligence, having great experience in legislation, and a thorough knowledge of the principles of the government. The question had been several times argued, was maturely considered, and the court were unanimous in the opinion that was pronounced. Subsequent reflection had not shaken their confidence in the soundness and correctness of the decision, nor did they think it at all impugned by the determination in the case of Mason v. Haile,(b) as that case was distinguishable in several very essential and important particulars, and might well be considered as resting on different principles.

§ 377. Although the court in the case last cited, seem to think that its decision did not conflict with the doctrine laid down in the case cited by it from 12 Wheat. Rep. 370, and that the case it decided was distinguisha

(a) Lyman's Admr. v. Mower et al., 2 Vt. R. 517. Kendall v. Dodge & Waterman, 3 id. 360.

(b) 12 Wheat. R. 370.

ble from the case of Mason v. Haile, we must confess that we have been unable to discover any such distinction as would warrant the inference, that the two cases could be reconciled, or be regarded as harmonizing with each other, so far as the fact of retrospect or retroaction is concerned. The latter case, it is true, was that of a general law applicable to all the citizens of the state, extended by a special law to a particular individual. The former was a special law enacted for a given case, and was confined in its operation to a single individual: in this respect they were different. That is, upon the question whether laws should be special or general, the two cases present cases somewhat different in their character; and perhaps in this respect, the two cases rest upon somewhat different principles, but not so far as the question of retrospect is concerned. The case of Mason v. Haile decided, that a discharge under a general insolvent act of a state did discharge a prisoner committed to prison for debt antecedent to the passage of the resolve, which extended to the defendant the benefits of an old statute providing for a discharge from debts, and imprisonment for debt. The ground upon which the decision was placed, was that imprisonment for debt was merely remedial, and did not partake of the nature of a vested right. It was no part of the contract, and hence did not come within the rule that statutes should not have a retroactive operation so as to affect vested rights. That if it might be regarded as a punishment for not performing the contract, or might be allowed as a means for inducing the party to perform it, the state might refuse to inflict the punishment, or might withhold it altogether, and leave the contract still in force. We apprehend that the difficulty in sustaining the decision in the case of Ward v. Barnard is, that in that case, although the court grasped a principle which is a sound one, that the legislature cannot constitution

ally pass laws which are retrospective and having a retroactive effect upon vested rights, it confounded the marked distinction which exists between matters which are purely remedial, and which are not deemed vested rights, and which may be retroactively affected by subsequent legislation, and matters which do not relate to the remedy merely, but enter into the substantive parts of a contract, expressed or implied, constituting an absolute right, completely and unqualifiedly vested in the party. This, as we have already had occasion to show, is the line which bounds legislative power, so far as retrospective acts are concerned.

§ 378. It has by some been supposed that the supreme court of the United States have decided that state legislatures might pass retrospective laws having a retroactive effect, divesting vested rights. In the case of Satterlee v. Matthewson, (a) Mr. Justice Washington did declare that there was no part of the constitution of the United States which applied to a state law of this description; and that he was not aware of any decision of any of the United States courts, which had condemned a law on this ground, provided its effect be not to impair the obligation of a contract. In Watson v. Mercer,(b) Mr. Justice Story said, "It was clear that this court has no right to pronounce an act of the state legislature void, as contrary to the constitution of the United States, from the mere fact that it divests antecedent vested rights of property. The constitution of the United States does not prohibit the states from passing retrospective laws generally." The same doctrine is reiterated by Chief Justice Taney, in the case of Charles River Bridge v. Warren Bridge et al.(c)

(a) 2 Pet. R. 413.

(b) 8 id. 110.

(c) 11 id. 539.

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