points in favour of constitutional liberty, and of the security of property, in this country, that has ever been judicially determined. There never was any doubt or difficulty in New-York, in respect to the competency of the courts to declare a statute unconstitutional, when it clearly appeared to be so. Thus, in the case of The People v. Platt, the Supreme Court held, that certain statutes affecting the right of Z. Platt, and his assigns, to the exclusive enjoyment of the river Saranac, were in violation of vested rights under his patent, and so far the court held them to be unconstitational, inoperative, and void. The control which the judicial power of the state had, until the year 1823, over the passing of laws, by the institution of the council of revision, anticipated, in a great degree, the necessity of this exercise of duty. A law containing unconstitutional provisions, was not likely to escape the notice and objection of the council of revision; and the records of that body will show, that many a bill, which had heedlessly passed the two houses of the legislature, was objected to, and defeated, on constitutional grounds. The records to which I refer are replete with the assertion of salutary and sound principles of public law and constitutional policy, and they will for ever remain a monument of the wisdom, firmness, and integrity of the council.

A statute, when duly made, takes effect from its date, when no time is fixed, and this is now the settled rule. It was so declared by the Supreme Court of the United States in Matthews v. Zane, and it was likewise so adjudged in

When a sta tute takes effect.

a See decisions in the state courts to the same point, in 1 N. H. Rep. 199, 12 Serg. and R. 330. 339. Charlton's Rep. 176. 1 Har. & J. 236. 1 Hayw. 28. 2 Hayw. 310. 374. 1 Murphy, 58. 3 Dessauss. 476. 1 Rep. Con. C. S. C. 267. Le Breton v. Morgan, 16 Marlin's Loui. R. 138.

b 17 Johnson, 195.
c7 Wheaton, 104.

the Circuit Court in Massachusetts in the case of the brig Ann." I apprehend, that the same rule prevails in the courts of the several states, and that it cannot be admitted that a statute shall, by any fiction or relation, have any effect before it was actually passed. A retroactive statute would partake in its character of the mischiefs of an ex post facto law, as to all cases of crimes and penalties ; and in every other case relating to contracts or property, it would be against every sound principle. It would come within the reach of the doctrine, that a statute is not to have a retrospective effect; and which doctrine was very much discussed in the case of Dash v. Vankleeck, and shown to be founded, not only in English law, but on the principles of general jurisprudence. A retrospective statute affecting and changing vested rights, is very generally considered, in this country, as founded on unconstitutional principles, and consequently inoperative and void. But this doctrine is not understood to apply to remedial statutes, which may be of a retrospective nature, provided they do not impair contracts, or disturb absolute vested rights, and only go to confirm rights already existing, and in furtherance of the remedy, by curing defects, and adding to the means of enforcing cxisting obligations. Such statutes have been held valid, when clearly just and reasonable, and conducive to the general welfare, even though they might operate in a degree upon existing rights, as a statute to confirm former marriages defectively celebrated, or a sale of lands defectively made, to pay debts of the testator or intestate. The legal rights affected in those cases by the statutes, were deemed to have been vested subject to the equity existing against them, and which the statutes recognised and enforced. But the cases cannot be extended beyond the circumstances on which they repose, without putting in jeopardy the

a 1 Gallison, 62.
6 7 Johnson, 477.

c Nemo potest mutare consilium suum in alterius injuriam, Dig. 50. 17. 75. Taylor's Elements of the Civil Law, 168. Code 1. 14. 7. Bractor, 1. 4. fo. 228. Code Napoleon, art. 2.

d Tennessee Bill of Rights, art. 20. New Hampshire Bill of Rights, art. 23. Osborne v. Huger, 1 Bay, 179. Ogden v. Blackledge, 2 Cranch, 272. Bedford v. Shilling, 4 Serg. $ R. 401. Duncan, J. in Eakin v. Raub, 12 Ibid. 363—372. Society v. Wheeler, 2 Gallison, 105. Washington, J., in Society for Propagating the Gospel v. New Haven, 8 Wheaton, 493. Merrill v. Sherburne, 1 NewHampshire Rep. 199. Ward v. Barnard, 1 Aiken, 121. Brunswick v. Litchfield, 2 Grecnleaf, 28. Proprietors v. Ken. Pur. Ibid. 275. Story, J., in Wilkinson v. Leland, 2 Peters' U. S. Rep. 657, 658. Lewis v. Brackenridge, 1 Blackford's Ind. Rep. 220.

the energy and safety of the general principle.

The English rule formerly was, that if no period was fixed by the statute itself, it took effect by relation, from the first day of the session in which the act was passed, and which might be some weeks, if not months, before the act received the royal sanction, or even before it had ever been introduced into parliament. This was an extraordinary instance of the doctrine of relation, working gross injustice and absurdity; and yet we find the rule declared and uniformly adhered to, from the time of Hen. VI. All the judges agreed, in the case of Partridge v. Strange, in the 6ht Edw. VI.' that the statute was to be accounted in law a perfect act from the first day of the session ; and all persons

a Duncan, J., in Underwood v. Lilly, 10 Serg. & R. 101. Tate v. Stooltzfoos, 16 lbid. 35. Bleakney v. F. & M. Bank, 17 lbid. 64. Foster v. Essex Bank, 16 Mass. Rep. 245. Locke v. Dane, 9 lbid. 360. Townsend v. Townsend, 1 Peck's Tenn. R. 16, 17. Ibid. 266.

b Goshen v. Stonington, 4 Conn. R. 209. Wilkinson v. Leland, 2 Peters' United States Rep. 627. Langdon v. Strong, 2 Vermont Reports, 234.

c Retrospective laws, as used in the constitutions of Tennessee, North Carolina, and Maryland, mean laws impairing the obligation of contracts. 1 Peck's Tenn. Rep. 17.

d 4 Inst. 25.
e 33 Hen. VI. 18. Bro. Exposition del Terms, 33.
fi Plow. 79.

were to be punished for an offence done against it after the first day of the session, unless a certain time was appointed when the act should take effect. In the case of The King v. Thurston, this doctrine of carrying a statute back by relation to the first day of the session, was admitted in the K. B. ; though the consequence of it was to render an act murder, which would not have been so without such relation. The case of the Attorney General v. Panter," is another strong instance of the application of this rigorous and unjust rule of the common law, even at so late and enlightened a period of the law as the year 1772. An act for laying a duty on the exportation of rice thereafter to be exported, received the royal assent on the 29th of June, 1767, and on the 10th of June of that year, the defendants had exported rice. After the act passed, a duty of 115 pounds was demanded upon the prior exportation, and it was adjudged in the Irish Court of Exchequer to be payable. The cause was carried by appeal to the British House of Lords, on the ground of the palpable injustice of punishing the party for an act innocent and lawful when it was done ; but the decree was affirmed, upon the opinion of the twelve judges, that the statute, by legal relation, commenced from the first day of the session. The K. B. also, in Latless v. Holmes,o considered the rule to be too well settled to be shaken, and that the court could not take notice of the great hardship of the case. The voice of reason at last prevailed, and by the statute of 33 Geo. III. c. 13. it was declared, that statutes are to have effect only from the time they receive the royal assent, and the former rule was abolished, to use the words of the statute, by reason of “its great and manifest injustice."

There is a good deal of hardship in the rule as it now stands, both here and in England; for a statute is to operate from the very day it passes, if the law itself does not

a 1 Lev. 91.

( 4 Term, 660.

b 6 Bro, P. C.553.


establish the time. It is impossible, in any state, and particularly in such a wide spread dominion as that of the CEted States, to have notice of the existence of the law, until some time after it has passed. It would be no more than reasonable and just, that the statute should not be deemed to operate upon the persons and property of individuals, or impose pains and penalties for acts done in contravention of it, until the law was duly promulgated. The rule, how. ever, is deemed to be fixed beyond the power of judicial control, and no time is allowed for the publication of the law before it operates, when the statute itself gives no time. Thus, in the case of the brig Ann," the vessel was libelled and condemned for sailing from Newburyport, in Vassachusetts, on the 12th of January, 1808, contrary to the act of Congress of the 9th of January, 1808, though it was admitted the act was not known in Newburyport on the day the brig sailed. The court admitted that the objection to the forfeiture of the brig was founded on the principles of good sense and natural equity; and that unless such time be allowed as would enable the party, with reasonable diligence, to ascertain the existence of the law, an innocent man might be punished in his person and property, for an act which was innocent for aught he knew, or could, by possibility, have known, when he did it."

The code Napoleon adopted the true rule on this subject. It declared, that laws were binding from the moment their promulgation could be known, and that the promulgation should be considered as known in the department of the imperial residence one day after that promulgation, and in each of the other departments of the French empire,

a 1 Gallison, 62.

b Judge Livingston, in 1810, held that the embargo law of December, 1807, did not operate upon a vessel which sailed from Georgia on the 15th of January, 1808, before notice of the act had arrived. I Pirne's Rep. 23.

( Art. 1.

« ForrigeFortsett »