§379. These cases, however, only decide that there is no inhibition against such laws contained in the constitution of the United States; they by no means sanction the doctrine that such kind of laws are within the legitimate scope of legislative authority. In neither of those cases did the act under consideration divest any vested right, and all that the court said upon the subject of retrospective laws divesting vested rights, was obiter dicta. In the case cited from 2 Peter's R., the act simply changed a rule of evidence as between landlord and tenant, so that a tenant might in an action dispute the title of his landlord, which under the common law he could not do; and even that act was confined to cases which had not passed into judgment, so as to become a vested right under a judgment.(a) The case of Watson v. Mercer, was an act which cured a defective acknowledgment of a deed, and the decision was placed on the ground that the act did not affect or touch any title acquired under any patent or deed. It assumed the title good, and made the deed effectual to secure the right which vested, or was intended to be vested under the deed in other words, gave effect to vested rights. The case of The Charles River Bridge v. The Warren Bridge above cited, does not necessarily determine that the legislature may legitimately pass retrospective laws having a retroactive effect, and thereby divest vested rights. It is true, as we have seen, it was held that state laws might be retrospective in their character, and might divest vested rights without conflicting with the constitution of the United States, unless it impaired the obligation of a contract. This proposition, restricted as it is in that decision, is undoubtedly true; for that in

(a) See also, 13 Sergt. & Rawle, 133; 16 ibid. 169. Delancy v. Tilghman, 6 Gill. & Johns. 461. Wilkeson v. Leland, 2 Pet. R. 627.

strument does not contain any inhibition against state legislatures passing retrospective laws, having a retroactive effect upon mere civil rights. By a critical examination of this case, it will be perceived that it was unnecessary for the court to lay down that proposition qualified as it was; and so far as relates to retrospective laws divesting vested rights, it is also obiter dicta; for that question did not arise out of the facts in that case. The facts in that case were, that a charter had been granted to a bridge company with authority to receive tolls for a certain number of years. Before the expiration of that charter, the legislature incorporated another company with authority to erect a bridge over the same river, in such proximity to the bridge of the former company as seriously to affect its tolls. The validity of the last act

came in question in this the charter of the first company did not create a contract with it, that no other bridge company should be incorporated. It will be perceived, if this was so, they had no vested right to all the tolls paid by persons crossing this river. The only right in this respect which vested in it, was a vested right in all such tolls as should accrue from persons who actually crossed its bridge. The latter act, therefore, did not in this respect affect any right vested in the first company under its charter. Hence, it was not necessary for the court to decide, that a retrospective law might be passed having a retroactive effect, so as to divest vested rights. The decision was put upon the ground in fact, that the act did not divest any vested right which had been secured to the company by its charter, or which had become vested in it. This case, as well as the two other cases above cited, on the one hand, distinctly recognize the sanctity of rights vested under any compact; and on the other, they do not sanction the doctrine, nor do they sustain the posi

cause. The court held, that

tion that a state legislature, in the legitimate exercise of its authority, may by retrospective legislation, divest vested rights. They only declare that they may do so for aught that is contained in the federal constitution.

§ 380. The doctrine of these cases does not conflict with the views we have taken in a preceding chapter, when considering laws of this character. We omitted then to refer to them as they came more properly under consideration as a constitutional question. It has been held, that statutes, the object of which are to cure all defective acknowledgments, in a certain class of deeds, and give them the same efficacy as if they had been originally in proper form, are valid acts of legislation.(a) But such statutes do not apply to cases which have actually passed into judgment, under which rights have become absolutely vested.(b) Other confirmatory acts have been sustained in other states, although not decided strictly under any express constitutional inhibition against retrospective laws. The judges of the court in Connecticut have repeatedly, in sustaining such acts, said that retrospective laws, impairing vested rights, if not clearly unjust were entitled to obedience, and to disregard an act of the legislature, unless it be inequitable, oppressive, and in violation of the social compact, is not within the confines of judicial authority.(c) In two of the cases cited, the acts were acts confirming certain acts defectively executed, or declaring that certain acts should not be deemed void which otherwise would have been so. And in the first case, the act under consideration made

(a) Tate v. Stoolizfoos, 16 S. & R. 35. McMaster v. The Commonwealth, 3 Watts' R. 294. Walter v. Bacon, 8 Mass. R. 472.

(b) Barnett v. Barnett, 15 S. & R. 72. (c) Goshen v. Stonington, 4 Conn. R. 209. Conn. R. 54. Beach v. Walker, 6 Conn. R. 197. R. 365. Norton v. Pettibone, 7 Conn. R. 319.

Mather v. Chapman et al., 6
Booth v. Booth, 7 Conn.

valid an informal marriage. In that case, as we have already seen, Hosmer, Ch. J., dissented. The decisions in Connecticut are based on the reason, that every act of the legislature implies an opinion, that the legislative body had a right to enact it, and that the judiciary would discover sufficient promptitude, if it determine a law to be invalid, that operates by retrospection unjustly on persons or property. That this principle steers a correct medium, admitting the sovereignty of the legislature to do justice, by an act unquestioned by the court of law, while it equally repels the supposed uncontrollable omnipotence of the same body, to require the observance of an unjust law, in subversion of fundamental rights, and in opposition to the social compact. They concede that this question is not free from difficulty. But hold, that unless the doctrine sanctioned by this rule be embraced, this extreme would be resorted to, that every retrospective law, however just or wise, affecting the property of an individual, must be considered as of no validity, and thus, in cases the most equitable and salutary, the judiciary must deny the legislature the right to pass a law, oppressive to no one, and promotive of entire justice. In the case in which these views were expressed by Hosmer, Ch. J., Mr. Justice Lanman concurred, Mr. Justice Peters dissented, and Justices Brainard and Dagget expressed no opinion. The act in question in this case was a confirmatory one, providing that no levy of an execution on real estate previously made should be deemed void, because the officer embraced in his return as part of the cost of the levy, other and greater fees than were by law allowed. These acts, it is true, some of them operated upon and affected, to some extent retrospectively, vested rights, yet none of them, so far as operative as confirmatory, merely, divested any vested right, in the proper sense of the term. They legalized past acts defectively done. They were

confirmatory of acts of a remedial nature, and legalized things pertaining to remedial proceedings, connected with the enforcement of rights, to some extent authorized and sanctioned by law. Were declarative that an act by which vested rights had been divested, should not be rendered nugatory, because, by accident, mistake, or otherwise, there had been an excess or defect of authority, in a matter connected with an act, per se, legal to some extent, unless tainted by an illegal act or defect growing out of extraneous matters. That such defect or excess should not vitiate the whole of the proceedings, those that were otherwise authorized as well as those not. They merely sanction the doctrine that a past error shall not be unalterably and irretrievably fixed, beyond the power of legislation, in cases where it may be remedied without injustice, or inequitable oppression, and without any violation of the fundamental principles of the social compact. An act producing neither of these effects, and at the same time promotive of justice and equity, and restricted within the limits which in these cases has been prescribed, can hardly be regarded as an act taking from one a vested right, and vesting that right in another, or in other words, to operate, per sc, by retrospection, so as to divest antecedently acquired interests. In the case last cited, the law which was altered by the act, authorized the divesting of an estate for the payment of a debt, and to that extent authority to divest existed by the former law and under which the proceedings were had, though not strictly conformable to its literal import. The confirmatory act declared in effect, that an estate divested under an authority of law pro tanto legal, should not be defeated or vitiated on account of an excess in the exercise of an authority expressly given to a certain extent. Such acts of legislation may perhaps be defended on the ground that they fall more properly under the denomination of purely remedial acts, which, as we have seen, have uni