That these principles apply alike in states where retrospective legislation is prohibited, and in those in which it is allowed, compare Rich v. Flanders, 39 N. H. 304, 1859; Webb v. Den, 17 How. 576, 1854; Briggs v. Hubbard, 19 Vt. 91; Ross' Case, 2 Pick. 169, 1824 (in which, by the way, the same thing was said of ex post facto laws, and it was held that they would be invalid on general principles, even without any constitutional prohibition). (Officer v. Young, 5 Yerg. 320, 1833; De Cordova v. Galveston, 4 Tex. 470, 1849; Dash v. Van Kleeck, 7 Johns. 477, 1811.)

I think, then, the whole matter may be briefly summed up thus:

1. Laws of procedure and evidence and the adjective law generally operate from the date of their passage (or other date when they take effect), and therefore govern the remedy of wrongs and enforcement of rights alike in all cases, whether the cause of action arose before the law took effect or afterwards. The presumption is that they do not affect the rights and duties so enforced: the principle-nova constitutio futuris dat formam non præteritis (Bracton, fol. 228, 2 Inst. 202)-applies to them simply, and there is no question of retroaction.

2. But if it can be shown that the application of a new rule of adjective law operates to take away or diminish a substantive right or render more burdensome a substantive duty, existing at the time when the new law came into effect, the question of retroaction arises, and the new law will not be applied unless its terms require it.

3. If the terms do require it, and of course if the new law is one expressly intended to operate upon such rights and duties, then the precedents will sustain its retrospective application when the new rule confirms or enforces the equitable rights of the parties inter ested, though vested legal rights inconsistent with the former may be taken away, e. g. :

(a) By the confirmation of title to land under irregular sales or other proceedings lacking some technical requirement, but substantially just. (Wilkinson v. Leland, 2 Peters, 627; 10 Peters, 294; Kearney v. Howard, 15 How. 494; Hussey v. Smith, 99 U. S. 20; Randa.. v. Kreiger, 23 Wall. 137.)

(b) By validating the proceedings of courts, magis.. trates, or administrative officers, so as to take away vested rights which owe their continued existence only to some defect or irregularity of proceeding. (Thompson v. Lee County, 3 Wall. 327; Beloit v. Morgan, 7 Wall. 619; New Orleans v. Clark, 95 U. S. 687.) With respect to this latter class, the condition that the defect overruled must be one that the legislature could have prevented in advance, has often been expressed as an essential one to the exercise of the power. (Cooley's Const. Lim. 371, 382, and cases cited.) The same condition seems also to apply to the former class. If the case is one where the legislature could not have said in advance that the irregular sale or other proceeding should be legal and sufficient, without impairing the obligation of a contract, or taking private property, or destroying rights without due process of law, then the objection to the retrospective character of such laws is fatal.

4. Acts impairing the obligation of contracts, or taking private property without compensation, must in their very nature be retrospective, and are unconstitutional in both aspects.

(19) Sovereignty and legislation are indeed convertible terms; one cannot exist without the other, page 46.

Sovereignty is a term that has outlived its original environment: and as usually happens in such cases, it has lost that distinctness of meaning which can only result from perfect consistency with other terms that surround and limit it. The popular use has been

divorced from the scientific conception; and the latter has not been improved by well-meant attempts to reconcile it with notions of different origin. In common language, the reigning monarch is still the sovereign of Great Britain or Germany, or other monarchic states (see quotation from Westminster Review in note, ante, p. 81); but no one of these is a sovereign in the sense of Blackstone or Austin, or of legal science. This is the more striking because the term was first devised to describe the power of a French king, at a period when his actual power of legislation was probably not greater than that of contemporary monarchs. The queen of England is still sovereign author of law in the terms of the formula by which she enacts every statute, though with the advice and consent of the lords and the commons: but in the treatises it is the parliament, queen, lord, and commons, that are sovereign; while in fact two centuries have passed since a king of England exercised any other than a consenting voice in legislation, and the events of the present year show how little beyond mere advice to the dominant House of Commons is the voice of the peers.

The question of real importance, however, is not whether the actual sovereign in a given state enjoys the title, but whether there is in any American state (including in that term the United States as a single body as well as the separate states of the Union), a power which in fact answers to the description of sovereignty given in the books, e. g., in this passage of the Commentaries, or in the writings of Bentham and Austin, and the host of recent writers who have copied them.

It is hardly needful to quote passages from other writers than Blackstone to prove the familiar doctrine that a sovereign power must have the right to set laws to the state of which he (they or it) may be sovereign; must be actually in possession of that right, and must

hold it independent of any other power, either within the state or without it. No such power can with the least plausibility be claimed for any person or body in an American state, unless it be for the people of such state as a collective body. About twenty years ago, in the crisis of civil war, an attempt was made to show that Congress did really, as the nation's legislature, possess sovereign power in the very nature of the case, despite the language of constitutions and jurists. (The Trial of the Constitution, by S. G. Fisher, Phil. 1863.) But with this exception there is unanimous consent, I believe, to the doctrine that these are governments of the people by the people, for the people, and that all sovereignty is in the people. No one claims that the legislature of any state is sovereign, although it "possesses the whole legislative power of the people, except so far as they are limited by the constitution." (Emott, J., 23 N. Y. 469.) "The law-maker's will is subordinate to constitutional injunctions." (Bell, J., 6 Pa. St. 516.) "The people are sovereign; they are supreme in power. The legislature act by delegated and circumscribed authority; circumscribed as to its objects, circumscribed as to its extent over those objects." (Kirkpatrick, C. J., 4 Halst. 443.)

But the sovereign people by their own act have at once and in every instance divested themselves of all the powers of government which are the essential mark of sovereignty in the books. They have so divided these powers among the legislative, executive, and judicial departments, that neither one of these could claim supremacy over the others. They have limited the legislative, which is according to Blackstone the sovereign power, by a written constitution, and thus enabled the judiciary to overrule its decisions in some cases: and as if for the very purpose of making it impossible to find scvereignty anywhere, they have even forbidden this legislature to refer back to their principal this dele

gated and limited power. It is the settled constitutional doctrine in all our states, that the legislature cannot evade their responsibility by submitting a question of legislation to a vote of the sovereign people. (Cooley's Const. Lim. pp. 120-125; Sedgwick on Construction, Pomeroy's ed. 135; Barto v. Himrod, 8 N. Y. 483.) There are seeming exceptions to this rule, but it will be found that they all depend in principle on the right of local self-government. (See note on Municipal Corporations, post, ch. 18.)

I do not care here to insist upon another objection to the common definition of sovereignty, which is yet not without force in a discussion of scientific law. When the people are sovereign, can the rules which they prescribe be in any sense the law imposed by a superior? Can any number or collection of individuals be their own superiors? On the other hand, can the laws imposed by a body of representatives on their constituents be so defined? How Bodinus would have answered either of these questions may be easily inferred. A sovereign with delegated power: a sovereign that was at the same time the subject upon whom his (their or its) rules were imposed, would have been to him a monster, something unthinkable and irrational. We may get rid of the difficulty as our fore-fathers of the revolutionary period did, by changing our definition of law, and calling it a rule, adopted by consent. But my object at present is only to show that sovereignty of the people and law imposed by a superior are utterly inconsistent, not whether one or the other is right. That we have no sovereign in the juristic or in the political sense is so plain that it does not escape foreign observers, even those who are disposed to regard it as a defect or omission in our political system. Thus Bethmann-Hollweg (Civil Process, I., p. 35, ? 16) praises the Romans as the first discoverers of the true organization of the state with a sovereign (Obrigkeit), hereditary or