pealing statutes, and the efforts that have been made to limit that operation. It has often, indeed, been said that statutes can never be made to work retrospectively so as to defeat or destroy a vested right; but we have already had occasion to question the correctness of this proposition as a general rule in regard to the operation of statutes. What is a vested right of property? Some vested rights are protected by the federal Constitution, others by the general limitation of the law-making power to which I have just referred. Other rights again, although created by positive law, are considered entirely under the control of legislation, and, indeed, treated as not being vested at all. The same difficulty of drawing the precise line, and of laying down any definition, exists here that we have already noticed in regard to the term law. The inherent difficulty of the subject can only be mastered by a frequent reference to principles, and a familiar acquaintance with adjudged cases. But we may affirm as a general rule, that-with the exception of those cases outside of the true limits of the lawmaking power, of those cases growing out of the restrictions of the federal Constitution; and excepting also where, as in New Hampshire, the States themselves have adopted a positive prohibition-it is in this country considered competent for the State Legislatures to pass laws having a retrospective effect; the only judicial check on the power being that the courts refuse to give statutes a retroactive construction unless the intention is so clear and positive as by no possibility to admit of any other construction. But, on the other hand, it is equally true that they are greatly discountenanced, and that the desire and effort of the courts is always to give a statute a prospective operation only. The subject was considered at an early day in the State of New York. The Supreme Court of that State, in a case arising on the construction of an act giving prisoners charged in execution certain jail liberties, held that a return or recaption before suit would be no excuse to the sheriff in an action against him for an escape.* Upon this Legislature passed an act (5th April, 1810, 33 Sess. c. 187) declaring that a return or recaption before suit brought should be a good defence.

* Tillman v. Lansing, 4 J. R. 45.

An action was brought against a sheriff for an escape, in which after issue joined, the act in question having been passed, it was insisted that the sheriff was entitled to the benefit of the statute, on the ground that it should be held to operate retrospectively and it was also strenuously insisted that the act was an explanatory act, and that if it was in any way competent for the Legislature to alter the law retrospectively, they had in this case done it. The court was divided; but the majority held that the plaintiff had a vested right of recovery; that the act was not expressly retrospective; that the statute would, if retrospectively construed, operate unjustly, as it would defeat a suit already commenced upon a right already vested, and thus punish an innocent party with costs, as well as divest him of a right previously acquired under the existing law. Thompson, J., said, "It may in general be truly observed of retrospective laws of every description, that they neither accord with sound legislation nor the fundamental principles of the social compact. How unjust then the imputation against the Legislature that they intend a law to be of that description, unless the most clear and unequivocal expressions are adopted!" Kent, J., said, "I think it can be shown that the act cannot be adjudged to operate either as a new rule for the government of a past case, or as interpreting a former statute for the direction of the courts; and I should be unwilling to consider any act so intended, unless that intention was made manifest by express words; because it would be a violation of fundamental principles, which is never to be presumed."*

So again, in the same State, more recently, it has been held to be a general rule that a statute affecting rights and liablities should not be so construed as to act upon those already existing. To give it that effect, the statute should in terms declare an intention so to act. So again, in another case, the court say, "Notwithstanding the peculiar phraseology of the section

Dash v. Van Kleeck, 7 J. R. 477. Spencer and Yates were in favor of the retrospective effect. Kent, Thompson, and Van Ness united in the judgment. See this case cited in Wood v. Oakley, 11 Paige, 400.

Johnson v. Burrell, 2 Hill, 238. In this case it was held that the provision of the Re

vised Statutes which declares that all actions upon judgments rendered in any court not being a court of record, shall be commenced within six years next after the cause of action occurred, does not apply to justices' judg ments rendered before 1830.

relied on by the plaintiffs' counsel, we think it ought not to be so considered as to give it a retroactive effect." So again, in the same State, a statute authorizing a writ of error in behalf of the people, to review a judgment rendered in favor of a defendant, has been held not to authorize such writ to review a judgment rendered prior to the passing of the statute, † and ‡ Mr. Justice Shankland, in another recent case, well calls the maxim which I have above cited from Bracton, "the primary rule for the interpretation of statutes."

So too, in Mississippi, it has been said that "as a general rule for the interpretation of statutes, it may be laid down that they never should be allowed a retrospective operation where this is not required by express command, or by necessary and unavoidable implication. Without such command or impli cation, they speak and operate upon the future only; especially should this rule of interpretation prevail when the effect and operation of a law are designed apart from the intrinsic merits of the rights of parties to restrict the operation of those rights." And the court decided that the act of that State, passed in 1846, limiting the effect of foreign judgments against citizens of Mississippi, to three years from the rendition thereof, could have no effect on judgments obtained before the passage of the act; or in other words, that it was not to be construed retroactively, and that a judgment recovered in Louisiana in 1844, was not to be affected by it. ||

So in Pennsylvania, a statute allowing a writ of error in cases where none lay before the passage of the act, has been held not to apply a judgment obtained before the act was passed. "My respect for the Legislature," said Rogers, J., in delivering the opinion of the court, "is too great to allow me for a single instant to suppose that they designed so great a wrong as by a retrospective act, to make that right which was clearly wrong. But granting that intention to be clearly ex

*Bailey v. The Mayor, &c., 7 Hill, 146; and it was held that the third section of the act passed May 7th, 1844, authorizing interest to be taxed upon verdicts, &c. (Sess. Laws of 1844, p. 508), does not apply to verdicts rendered before the act was passed, but is to be construed prospectively.

The People v. Carnal, 2 Selden, 463.

Lawrence v. Miller, 2 Coms. 245, 251. Boyd v. Barrenger, 23 Miss. R. 270; Garrett v. Beaumont, 24 Miss. R. 377; Murray v. Gibson, 15 Howard, U. S. R. 421.

pressed, I have no hesitation in saying that the act is unconsti tutional and void. The Legislature has no power, as has been repeatedly held, to interfere with vested rights. To give the property of A to B, is clearly beyond legislative authority."

In Maine, by the Constitution of which State the right is secured to every citizen, of possessing, acquiring, and enjoying property, it has been decided that a statute of limitation fixing the time within which actions are to be brought for the recov of lands, can have no retroactive effect on titles existing when it was passed; and the same principle was applied to a disseizin act relating to the mode of adverse possession.†

ery

So in Vermont, it has been held that statutes of limitation are not to have a retrospective operation.‡

In 1850, the Legislature of Connecticut passed an act declaring that "all real estate conveyed to a married woman during coverture, in consideration of money or other property acquired by her personal services during such coverture, should be held by her to her sole and separate use;" and it has been held that the statute was not to have a retrospective effect. "The presumption is," said the court, "that all statutes are to operate prospectively, and were not made to impair vested rights. In some cases, statutes may have a retrospective effect; yet, such a construction is never to be given to them unless required in the most explicit terms." |

We have already noticed the clause in the Constitution of New Hampshire, prohibiting retrospective legislation; and it seems to have been faithfully carried out. So an act of the Legislature repealing a statute of limitations, is void with respect to all actions pending at the time of the repeal, and which are barred by the statute. So, in the same State, where a statute gives a penalty incurred under it to an individual (as certain militia fines to an officer of a company), the right to a penalty incurred under the statute in a civil cause, is within the meaning of the clause in the bill of rights which prohibits the

* McCabe v. Emerson, 6 Har. Penn. R. 111.

Proprietors of Kennebec Purchase v. Laboree et als., 2 Greenleaf Rep. 275; Oriental Bank v. Freese, 18 Maine Rep. 109; Austin v. Stevens, 24 Maine R. 520; Preston v.

Drew, 5 Law Reporter, N. S. 189; Webster v. Cooper, 14 Howard, U. S. R. 488.

473.

Wires & Peck v. Farr, 25 Vermont, p. 41.
Plumb v. Sawyer, 21 Conn. 351.
Woart v. Winnick, 3 New Hampshire,

passing of retrospective laws for the decision of civil causes; and the right of such individual can not be taken away by a repeal of the statute under which the penalty was incurred.*

We have thus far considered cases where laws have been denied a retroactive effect. We have now to examine the converse class of decisions. There is, indeed, a large number of cases in which appeals are made for legislative relief or assist ance, in which it would be very injurious to assert the doctrine that the Legislature is incompetent to pass laws having a retroactive effect. Such are laws declaring valid acts of official per. sons irregularly elected; amending charters of incorporated companies; correcting assessment rolls irregularly made; extending the time for collection of taxes or for reports required by law; altering and amending judicial procedure. In these, and many other cases, it is difficult to avoid giving the acts of the Legislature a retroactive effect; and every such effect must or may influence injuriously some individual case. But the in

terests of the community are paramount. These cases are not treated as touching vested rights, and the power of the Legisla ture is admitted. We proceed now to examine cases of this kind where statutes have been construed retrospectively.

It has been said in Massachusetts, that the Legislature may constitutionally enact laws to alter the limits of prison yards; to render valid and legal the doings of public officers; to confirm the acts of towns and other corporations, invalid for some informality, although by such enactments individuals may be deprived of rights previously vested. So in the Supreme Court of the United States, it has been said, that every law that takes away or impairs rights vested agreeably to existing laws, is retrospective, and is generally unjust, and may be oppressive; and it is a good general rule, that a law should have no retrospect. But there are cases in which laws may justly, and for the benefit of the community, and also of individuals, relate to a time antecedent their commencement." ‡

*Dow v. Norris, 4 N. H. 16.

Davison v. Johonnot et al., 7 Met. 389, citing Walter v. Bacon, 8 Mass. 468; Patter son v. Philbrook, 9 Mass. 151, and Locke v. Dane, 9 Mass. 360. These last are all cases on statutes changing the prison limits; and

the court decided that they were not er post facto laws, nor laws impairing the obligation of contracts.

Per Chase, J., Calder v. Bull, 3 Dall.

386, 391.