enjoined. In private law, and even in all public law except mere prohibitions, this is the normal form, and we thus see how the conception of a right or wrong becomes so important. Each of these is the antecedent upon which consequences are enjoined by the law, whether addressed to one person, or to many, or to all. "A law or rule of law consists in nothing more than the connecting of certain consequences with particular defined predicaments of fact." Starkie on Evidence, 3d ed. p. 1243, is perhaps as good a description as could be given. (16) It is requisite that this resolution be notified to the people who are to obey it, page 45. Richardson, J. (Lorent v. South Carolina Ins. Co. 1 McCord, 505, 1815), said: "I cannot for a moment doubt the doctrine laid down by the Supreme Court of the United States, in the case of Mary and Susan, 1 Wheat. 58, that no specific notice of the passing of an act of the legislature is required. The ratification is legal notice to every individual in the nation. The utter impossibility of notifying every one is the best reason why ignorance of the law does not excuse; and that every one concerned must know the law at his peril." This no doubt overrules the doctrine of Ham v. McClaws, Bay, 93, 1789, in which it was held that where a party could not possibly have known of the passing of a statute (being at sea, on his voyage toward the state, when it was enacted), he was not liable to its penalties. To same effect, see The Cotton Planter, 1 Paine, 23. But in The Ann, 1 Gall. 62, 1812, Judge Story collects the authorities from the reign of Edward III., which hold uniformly that no notification is necessary, counsel having cited this passage of the Commentaries as an authority against enforcing the law upon a ship at sea when it was passed. (17) Ex post facto laws, page 46. The original meaning of ex post facto applies to civil and criminal law alike. (Co. Litt. 241; Fearne's Con. Rem. 175, 203; Powell on Devises, 113, 133, 134; 2 Raym. Ld. 1352.) There are even some early American cases in which the same has been held. (Den v. Goldtrop, Coxe, 272, 1 N. J. L. 1795; State v. Parkhurst, 4 Halst. 9 N. J. L. 427, 444, 1802.) No clearer example can be given of Blackstone's controlling influence over the early law of the United States, than the fact that this passage, which (as Judge Dixon has correctly said, 14 Vroom. 203; 39 Am. Rep. 558, 568) does not define the term, but merely illustrates it from the criminal law, should have settled the American sense of the term as relating only to penal or criminal law. It was from him no doubt that the limitation passed into the original constitution of Massachusetts (part 1, 2 24); while in other states, still following him, the term "retrospective laws" was used, but with limitations that confined it to criminal law, e. g., Maryland, art. 15; North Carolina, art. 24; Delaware, art. 11. But the application of the term was fully settled by the case of Calder v. Bull, 3 Dall. 386, 1798, in which it was held that a retrospective act, granting a new trial in a civil case, was not ex post facto within the meaning of the United States constitution. Patterson, J., quotes the above passage of the Commentaries, and adds: "Here the meaning annexed to the term ex post facto laws unquestionably refers to crimes, and nothing else." (3 Dall. 396.) The four classes of ex post facto laws given by Chase, J., in the same case (3 Dall. 390), though purely a dictum, have been accepted by the courts ever since as correct. "1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment than the law annexed to the crime when committed. 4th. Every law that changes the legal rules of evidence, and receives less or different testimony than the law required at the time of the commission of the offense, in order to convict the offender." It is not, however, exhaustive, and was not intended by the author to be, since he winds up with a reference to "all these and similar laws" as unjust. A fifth class may be added by the great weight of recent authority, viz., acts which make an offense punishable after it has once been fully barred by a statute of limitations. (Moore v. State, 14 Vroom, 43.) Sixthly, it has been held not necessary that the law should belong to the class known as criminal statutes, or provide for criminal procedure and punishment, to bring it within the constitutional prohibition of ex post facto laws. The deprivation or suspension of any rights, civil or political, previously enjoyed, may be punishment, the circumstances attending and the causes of the deprivation determining this fact. Disqualification from office may be punishment, as in cases of conviction upon impeachment. Disqualification from the pursuit of a lawful vocation, or from positions of trust, or from the privileges of appearing in the courts, or acting as an executor, etc., may also be and has often been imposed as punishment. (Cummings v. Missouri, 4 Wall. 277; Ex parte Garland, 4 Wall. 333, 1866; Fletcher v. Peck, 6 Cranch, 137.) Finally, laws of all those classes operating in favor of the individual, as by remitting penalties, making convictions more difficult, etc. are not ex post facto laws within the meaning of the prohibition. (18) Retrospective legislation, page 46. Every ex post facto law is retrospective, but every retrospective law is not ex post facto. The latter class only is 1 BLACKST -12. prohibited by the federal constitution (3 Dall. 390); so, also, in most of the states. Some few, as New Hampshire, Texas, Tennessee, prohibit all retrospective legislation, civil as well as criminal. But it will be found on examining the decisions that the express prohibition of retrospective laws has very little effect, and that the decisions as to retrospective legislation are substantially the same in both classes of states. The explanation of this is worth considering. It will furnish the student with a valuable illustration of the controlling influence exercised by legal principles, and the subject-matter of law over positive rules, even when enacted by the highest authority, as by the people of a state in their written constitutions. It is evident upon a moment's reflection that no new law can be retroactive in the literal sense of the term. The acts and events of past time are unchangeable by any human power, even if we may not say with the heathen poet, that even the Deity non tamen irritum - Horatii Carm. III., 2, 45. This is so clear that it may seem hardly worth stating, much less proving; but the example of Savigny, System, book 8, 382, 2 385, may be authority for the formal statement of so plain a truth. But the more thoroughly one studies the common law, the more deeply he will be impressed with the fact that no line of exact demarcation can be drawn between its rules and those of logic or philosophy; and that often the surest way to avoid doubts and difficulties is to trace them into the philosophical or metaphysical questions out of which they spring. Again, it is equally evident, that when the law has been changed by the introduction of a new statute, there is, prima facie, no reason why the discarded rule should be applied to any act or event subsequent to the change. These two considerations would seem to make retrospective legislation in the strict sense of the term impossible. In order to ascertain what the term really does mean, we must look beyond the definition of a law and examine what is meant by a right. Retrospective legislation is that which changes a right or a duty in the interval between its origin and its final effect or completion. Wherever no lasting right can exist, the term becomes meaningless; wherever a lasting right vested in any private person exists, retrospective legislation affecting it becomes contrary to the common principles of justice. This is really the definition given of the terms by Lord Mansfield in Couch v. Jeffries, 4 Burr. 2460, who says in substance that retrospective legislation is that which takes away vested rights; to the same effect, 1 Kent Com. 455, and Story, J., in Society v. Wheeler, 2 Gall. 105. Consequently, the provision found in most of our constitutions prohibiting the impairment of the obligation of contracts, and that forbidding private property to be taken for public use, operate substantially as rules to determine in what cases legislation may be retrospective. (Satterlee v. Matthewson, 2 Peters, 407, 1829; Ogden v. Saunders, 12 Wheat. 262, 1827; and the able discussion of vested rights in Cooley's Constitutional Limitations, 358, and following.) The rights of parties cannot be changed by legislation, but no party has a vested right in any particular remedy. The organization of courts, the forms and processes of action, the rules of evidence and procedure, and even the rules which determine the parties to actions may be changed, and a new rule made applicable to causes of action already existing, providing a substantial right is not thereby affected. (Willard v. Harvey, 24 N. H. 351, 1856.) Hence, too, it will be seen that much of the fluctuation in cases upon the retrospective effect of laws grows out of the difficulty of distinguishing between remedies that do and remedies that do not impair the obligation of a contract. |