1820. Stevenson's ally used to point at the relative time of a future action. The true reading of this part of the act is this, "where" (i. e. in all cases, hereafter, in which)" a man shall marry a woman, having by him, at the time, one or more children." Thus, the participle, although present at the time of the marriage, is future in relation to the passage of the act. This is no unusual application of this participle ;-if I say, "if a man shall go to Rome, and having a dagger in his hand, shall strike it to the heart of the Pope:" the present participle is properly used in it; it is present in relation to the action with which it stands connected, though future, in relation to the time of speaking, So the present participle here is present in reference to the act with which it clearly stands connected, the act of marriage; although future in relation to the date of the act. The sense is the same as if the legislature had said, "wherever, hereafter, a man shall have one or more children by a woman, and shall, afterwards, intermarry with her," &c. It is only by this construction which considers both the birth and marriage as future, that the word "afterwards," used in the act, acquires a grammatical sense, or, indeed, any kind of sense. To prove this, let us see what the effect will be of considering this participle, as used in the present tense, in reference to the time of passing the act. Then the sense will be," where a man now having one or more children by a woman, shall afterwards intermarry with her :" it is clear that the word, afterwards, becomes insignificant and senseless. It adds nothing to the meaning; for if a man now having one or more children by a woman, shall intermarry with V. Sullivant. 1820. Stevenson's her, he must of necessity intermarry with her afterwards; for the future verb, shall intermarry, makes Heirs the act future, in relation to the passage of the act; Sullivant. and the adverb of time, afterwards, added to the verb, v. does not perform its appropriate function of adding a new quality to the verb. It is a useless clog, therefore, on the sense, because its tendency is to obscure, and not to illustrate the sense. Whereas, the construction for which we contend, (by considering both facts as posterior to the act, but the marriage as being posterior to the birth,) gives the word, afterwards, force and significancy; it then performs the office of arranging the order of the two future events. In this point we differ from the Court of Appeals of Virginia, and insist, that the liberality which would apply this act retrospectively, to previous births and marriages, is a liberality which looks beyond the judicial sphere, and belongs only to the legislature. What is the argument on which the Court of Appeals (and the opposite counsel, after them) ground themselves in extending this act to antecedent births and marriages? "I see no difficulty," says Judge Roane, in Rice v. Efford," "except what arises from the words, shall afterwards intermarry, which might seem to import only marriages to be celebrated in future that word, afterwards, however, is rather to be referred to the birth of the children, than the passage of the act; and no good reason could possibly have existed with the legislature for varying the construction of a section, embracing two descriptions of cases standing on a similar foundation." The counsel for the appellants, seizing this a 3 Henn. S. Mumf. 231. 1820. Stevenson's y. passage, has said, the terms, "shall afterwards intermarry," are correctly referred (by the Court) to the birth of the children, not to the date of the act. This is not accurate: it is not the three words, shall Sullivant: afterwards intermarry, that are referred by the Court to the birth of the children: but the word, afterwards, alone. This, we admit, is correctly referred to the birth of the children: but the Court having correctly gained this conclusion, forget the force of the future verb, “shall intermarry." We say, that the force of this future verb requires that the marriage shall be after the act. That henceforth, "where a man having by a woman one or more children, shall afterwards intermarry with such woman," irresistibly demands a marriage future to the date of the act that the words, shall intermarry, make the marriage future in relation to the act. The word, afterwards, removes the marriage farther off, and marks its futurity in relation to another event, the birth of the children; which other event, although expressed by the present participle, is itself drawn forward into futurity by the force of the word, afterwards, to which it is attached. That such an intention is utterly inconsistent with the prospective character given to the whole act, by the force of the word henceforth, and in the commencement. That the force of this word runs through the whole act; and that, used in the clause under consideration, it would render the retrospective construction of that clause absurd. In the passage cited, Judge Roane says, that no good reason could possibly have existed with the legislature, for varying the construction of a 1820. Stevenson's Heirs V. Sullivant. section embracing two descriptions of cases, standing on a similar foundation. This might have been a good argument on the floor of the legislature, to induce them to embrace past cases; but it is no argument to prove that they have embraced them. Whether they ought to have embraced them is a very different question from whether they have actually done so. The first is purely a legislative question; the last purely a judicial question, and the only question in the case for the Court. But it is said, the appellants do not seek to give the act a retrospective effect; they say that the act, from the time it took effect, clothed the appellants with a new capacity of inheritance, not in relation to rights previously vested, but in relation to inheritances which might thereafter fall. Let it be admitted that their position is such; let it also be admitted, that the legislature had the right to clothe them with such new capacity in relation to future inheritances. But the question still remains, have they done so is it to persons in their predicament that this new capacity of inheritance is extended? We have endeavoured to show that it is not whether the Court look to the exposition of the statute by the tribunals of the State, or whether they look to the construction of the statute, per se. The Court of Appeals of Virginia, while they admit the application of this statute to antecedent births and marriages, decide that the law applies to cases only where the father has died posterior to the passage of the statute. The reasoning on which the Court ground this distinction is not fully developed by them the appellants' counsel infers their reason 1820. Stevenson's Heirs V. ing, and, as we may safely admit, contests it with success. But there is a reason for requiring that the father should continue in life after the act, which applies with equal force both to the marriage and the recogni- Sullivant. tion, and corroborates the construction drawn from the language of the law, that both those facts should be posterior to the act. It is this: the statute attaches new legal consequences to the act of marrying a woman by whom the man had, previously, had children; and to the act of recognizing such children. Make the law prospective in those particulars, and the citizens for whose government it was intended, have it in their choice, by performing those acts thereafter, to incur those consequences or not. But attach those consequences to a past marriage and recognition, and you change the legal character of a past transaction by an ex post facto law. By a subsequent law you attach consequences to an act which did not belong to it when it was performed. It is precisely for this reason that ex post facto laws are prohibited; because consequences are attached to an act which did not belong to them at the time; and which, consequently, could not have entered into his consideration of the question, whether he would commit it or not. You surprise him by a new case, on which his judgment was never called to pass, and when it is too late to retract the step and avoid the new consequences. 3. The next ground taken by the claimants is, that if they were not legitimated by the 19th section of the law of descents, they were made capable of inheriting from Richard by the 18th section of that |