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1820.

Heirs

v.

ble consideration for a grant, and the grant ought, in Stevenson's consequence, to be made to the heir of the family

suffering the loss. A military bounty is in the naSallivant. ture of compensation for a loss, or of a gratuity for

services. It is intended to supply to a family, as far as the liberality of the country can supply the place of a lost member. They are intended to avail the heir in his pecuniary concerns to the extent to which it is supposable his father's labour might have availed him had he lived. In this view, therefore, the bounty, given by law to the heir, is, in equity, a paternal estate, and should descend and pass to the paternal kindred, in exclusion of the maternal.

The Attorney-General, on the same side, contended, that the appellants were not entitled, either as legal representatives of Hugh, or as heirs of Richard Stevenson.

1. The appellants were not the legal representatives of Hugh Stevenson ; for legal representatives are those whom the law appoints to stand in a man's place, and such was not the case of the appellants. The law recognized no connexion between them and Hugh Stevenson.

But, it is objected, that the father had made them his legal representatives by his will. This admits of various answers: but one is sufficient, that the will was a nullity; it was revoked by the subsequent marriage and birth of a child. Neither, therefore, by operation of law, nor by any act of Hugh Ste

a Wilcocks v. Rootes, 1 Wash. Rep. 140.

1820.

Stevenson's

Heirs

Sullivant,

venson, does it appear that the appellants were his legal representatives.

2. Neither could they inherit as heirs to Richard Stevenson; for, being natural children, there was no common blood between them.

It is again objected, that they were legitimated by the 19th section of the law of descents. But this clause has received a judicial exposition by the highest Court of the State, in which the law was passed, and is now the settled law of that land. In the cases of Rich v. Efford,' and Sleighs v. Strider, the Court of Appeals of Virginia decided that the act applied to cases of prior births and marriages ; but, that to give it an application, the father must have been in life after the passage of the act. In this case, the father had died more than ten years before the act took effect, and, consequently, the case at bar is not within its operation. But, it is said, that the Court of Appeals were right in extending the law to cases of births and marriages antecedent to the act; but they were demonstrably wrong in declaring, that the act applied to cases only in which the father had died posterior to the act. To which we answer, that the precedent cannot be divided ; if it is to have the authority of a precedent, it must be taken altogether; it cannot be entitled to the authority of a precedent so far as it favours the opposite side, and be open to dispute so far as it destroys their position. It has been the settled law of Virginia, since the year 1805; for it was then that Sleighs v. Strider was

a 3 Henn. f. Munf. 2.5.

b ld. 229. note.

1820.

Heirs

v.

decided, and though its correctness may have been Stevenson's originally doubtful, yet extreme inconvenience fol

lows the disturbance of a rule of property which Sullivant. has been so long settled; and that this argument ab

inconvenienti, was of great weight in the estimation of the Court of Appeals itself, may be seen from the proposition to reconsider the decision of that Court in the celebrated case of Tomlinson and Delland. The original decision in that case, which subjected the succession to personal property, to the feudal principle, which, in relation to lands, respected the blood of the first purchaser, had been made in 1801. It having produced great excitement in the State, and being very generally disapproved, a reconsideration was most strenuously pressed in 1810, nine years only after the original decree; but a majority of the Court was of the opinion, that the inconvenience of overthrowing what was already considered as a settled rule of property, was too great to be encountered, even if the decision were erroneous at first. It is true, that they thought the decision called for by the stern language of the law; but from one of the Judges this opinion was wrung with such manisest reluctance, that it was believed he would have come to a different result had the question heen res integra. Here the rule having been settled, the Court will say how far it ought now to be considered as the settled law of the State,

If, however, these precedents be open to question at all, they are open throughout; and if the Court of

a 3 Call's Rep. 185.

1820.

Stevenson's
Heirs

V.

Appeals erred at all, it was not in limiting the operation of the law to cases in which the father has died since the act took effect, but in extending it to cases of births and marriages which happened anterior to Sullivant. the passage of the law. This law took effect on the 1st of January, 1787. The births, the marriage, the recognition, and the death of the father, had all occurred in, and prior to August, 1776. Had the legislature of Virginia the right to pass a retrospective law? The Court of Appeals said not, in the cases of Turner v. Turner's executors," Elliott v. Lyell, and the Commonwealth v. Hewitt. Even where it has been attempted to apply a new remedy to preexisting rights, it is said the language must be irresistibly clear, or the Court will not give it such retrospective operation.

Does the language of this act clearly intend to operate on pre-existing facts ? on pre-existing marriages and births? We contend that it does not. In the case of the Commonwealth v. Hewitt, before cited, Judge Roane, in resisting the retroactive effect of the law, founds himself, in a great measure, on the general nature of laws, as prospective, and on the time assumed by the act itself for the commencement of its operation, from and after the passing thereof. Both considerations concur here, with this farther circumstance in favour of this law, that while it has (in the original act) the usual clause, “ This act shall commence in force from and after the passing thereof,” a subsequent and distinct law was passed

6 3 Call. Rep. 269

a 1 Wash. Rep. 139.

c 2 Henn. & Munf. 187. VOL. V,

30

1820.

Stevenson's

Heirs

Sullivant.

to suspend its operation until the 1st of January, 1787. Again ; this act commences with a general declaration, most unequivocally prospective. The first clause is, “ be it enacted by the general assembly, that henceforth, when any person having title, &c.” According to settled rules of construction, therefore, the force of this expression, henceforth, runs through every subsequent clause. The 19th section under consideration ought to be read thus : “ Be it enacted that, HENCEFORTH, [that is, after the 1st of January, 1787,] where a man, having by a woman, one or more children, shall, afterwards, intermarry with such woman, such child or children, if recognized by him, shall thereby be legitimated." Is this language so irresistibly retrospective, in relation to the date of the law, that the Court is constrained to give it that construction ? Is it not, on the contrary, so obviously future and prospective, that it requires subtility and violence to wrest it to a retrospective meaning ? The verbs which indicate the acts that are to produce the effect of legitimation, are in the future tense. It is insisted, therefore, that the clause has no application to any case, but to one in which all the facts on which it is to operate, shall happen after its passage; the birth of the children, the marriage, and the recognition. It is true, that in speaking of the children, the present participle is used, “ having one or more children." But the present tense of this participle relates, not to the time of passing the act, but to the time of the marriage, “ having," at the time of the marriage, “one or more children." This is not a new use of the present tense; grammarians tell us that the present tense is occasion

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