one deeply interesting to the United States. The powers of the legislature are defined and limited by a written Constitution. But to what purpose is that limitation, if those limits may at any time be passed? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited, and acts allowed, are of equal obligation. If the Constitution does not control any legislative act repugnant to it, then the legislature may alter the Constitution by an ordinary act. The theory of every government, with a written constitution, forming the fundamental and paramount law of the nation, must be, that an act of the legislature repugnant to the Constitution is void. If void, it cannot bind the courts, and oblige them to give it effect; for this would be to overthrow in fact what was established in theory, and to make that operative in law which is not law. It is the province and the duty of the judicial department to say what the law is; and if two laws conflict with each other, to decide on the operation of each. So if the law be in opposition to the Constitution, and both apply to a particular case, the court must either decide the case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law. If the Constitution be superior to an act of the legislature, the courts must decide between these conflicting rules; and how can they close their eyes on the Constitution, and see only the law? This great question may be regarded as now finally settled, and I consider it to be one of the most interesting points in favor of constitutional liberty, and of the security of property, in this country, that has ever been judicially determined. (a) There never was any doubt or diffi

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(a) See decisions in the state courts to the same point, in 1 N. H. 199; 12 Serg. & Rawle 330, 339; Charlton, [175,] 176; 1 Harr. & Johns. 236; 1 Hayw. 28; 2 Hayw. 310, 374; 1 Murphy, 58; 3 Desaus. 476; 1 Const. R. [Treadway] (S. C.) 267; Le Breton v. Morgan, 16 Martin (La.), 138; Hoke v. Henderson, 4 Dev. (N. C.) 7. When a law requires a constitutional majority of more than a mere numeral majority, the courts of justice may look beyond the law into the proceedings of the legislature, to see that the prerequisites have been complied with, and that it has passed by the constitutional majorities. The State v. McBride, 4 Mo. 303. But this last point was left in doubt, in B. & N. F. Railroad v. City of Buffalo, 5 Hill (N. Y.), 209. [So they may to determine the date of an act. Thus, extrinsic evidence of the year in which an act was signed, “Approved, December 24, Abraham Lincoln," was held admissible. Gardner v. The Collector, 6 Wall. 499, citing Purdy v. The People, 4 Hill, 384; De Bow v. The People, 1 Denio, 9, and other cases.]

culty 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, (b) 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 unconstitutional, 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. (c)

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3. When a Statute takes effect. -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, (d) and it was likewise so adjudged in the Circuit Court in Massachusetts, in the case of The Brig Ann. (a) 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

(b) 17 Johns. 195.

(c) An act of Congress having given to the Secretary of the Treasury the right of appeal from the collector of the customs, on his decision relative to unascertained duties, or duties paid under a protest, it was held that the aggrieved merchant was confined to that remedy, and could not sustain a suit at law against the collector. Cary v. Curtis, 3 How. 236; [Curtis v. Fiedler, 2 Black, 461.] The strong objection to the decision is, that it takes the final construction of statute law from the established courts, and places it in an executive officer, holding at the pleasure of the President. It is the common-law right of the citizen to appeal to the courts, on the authority of laws, and to seek there redress from wrong and oppression. The deci sion of the same court, in Bend v. Hoyt, 13 Peters, 263, recognized principles that seem to be at variance with the above decision.

(d) 7 Wheaton, 164.

(a) 1 Gall. 62. The same rule is declared in New Jersey by statute. Elmer's Digest, 534.

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. Van Kleeck, (b) and shown to be founded not only in English law, but on the principles of general jurisprudence. (c) 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. (d)1y1 But this doctrine is not understood to apply to re

(b) 7 Johns. 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; Bracton, 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. & Rawle, 401; Duncan, J., in Eakin v. Raub, 12 id. 363-372; Society v. Wheeler, 2 Gall. 105; Washington, J., in Society for Propagating the Gospel v. New Haven, 8 Wheaton, 493; Merrill v. Sherburne, 1 N. H. 199; Ward v. Barnard, 1 Aikens, 121; Brunswick v. Litchfield, 2 Greenl. 28; Proprietors of Ken. Pur. v. Laboree, ib. 275; Story, J., in Wilkinson v. Leland, 2 Peters, 657, 658; Lewis v. Brackenridge, 1 Black. (Ind.) 220; Jones v. Wootten, 1 Har. (Del.) 77; Forsyth v. Marbury, R. M. Charlton, 333; Boyce v. Holmes, 2 Ala. 54; Williamson v. Field, 2 Sandf. Ch. 534.

Schenley v. Commonwealth, 36 Penn. St. 29, 57; see Miller v. Graham, 17 Ohio St. 1; Abbott v. Lindenbower, 42 Mo. 162; Conway v. Cable, 37 Ill. 82; of a deed made in good faith, but to the wrong person, Kearney v. Taylor, 15 How. 494; of contracts partially invalid for usury, Savings Bank v. Allen, 28 Conn. 97; even, in one case, of a conveyance of a married woman's land, void as to her,

tract where there was none, N. Y., &c. R. R. Co. v. Van Horn, 57 N. Y. 473; nor validate a transaction which the courts have held void, Forster v. Forster, 129 Mass. 559 (where the cases are collected and classified); nor validate void judicial proceedings, Maxwell v. Goetschius, 40 N. J. L. 383; Lane v. Nelson, 79 Pa. St. 407.

medial 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 existing obligations. (a) Such stat- * 456

(a) Duncan, J., in Underwood v. Lilly, 10 Serg. & Rawle, 101; Tate v. Stooltzfoos, 16 id. 35; Bleakney v. F. & M. Bank, 17 id. 64; Hepburn v. Curts, 7 Watts, 300; Foster v. Essex Bank, 16 Mass. 245; Locke v. Dane, 9 id. 360; Oriental Bank v. Freese, 18 Me. 109; Townsend v. Townsend, Peck (Tenn.), 16, 17; ib. 266; State v. Bermudez, 22 La. 355. In Patin v. Prejean, 7 La. 301, it was admitted that rights acquired under a contract could not be affected or modified by a subsequent statute; but then it was said that the means of enforcing or insuring the enjoyment of such rights might be extended or restricted by the legislature, as circumstances may require. This is a loose and dangerous admission. The language of the Supreme Court of New York, in Butler v. Palmer, 1 Hill, 325, is equally so; and it seems to be there conceded, that the legislature has unlimited power to interfere with vested rights, unless they be saved by some restriction to be found in the federal or state constitution!! Ch. J. Marshall, in Sturges v. Crowninshield, 4 Wheaton, 200, 207, spoke on this subject in a general and latitudinary manner, which was rather hazardous. He says, that the distinction between the obligation of a contract and the remedy given to enforce that obligation exists in the nature of things, and that without impairing the obligation of the contract, the remedy may be modified as the wisdom of the nation shall direct. Imprisonment of the debtor is no part of the contract,

Goshorn v. Purcell, 11 Ohio St. 641. See further, Thomson v. Lee County, 3 Wall. 327; Shaw v. Norfolk County R. R., 5 Gray, 162, 180. On the other hand, in Hasbrouck v. Milwaukee, 13 Wis. 37, it was held, and it would seem on sound reason, that a contract of a municipal corporation, void as ultra vires, could not be ratified by the legislature so as to impose a burden on the corporation without its assent.

50 Maine, 111; Harvey v. Tyler, 2 Wall. 328, 347; Plumb v. Sawyer, 21 Conn. 351; Taylor v. Keeler, 30 Conn. 324, 325; Torrey v. Corliss, 33 Maine, 333; Hopkins v. Jones, 22 Ind. 310; Seamans v. Carter, 15 Wis. 548; Boston & Maine R. R. v. Cilley, 44 N. H. 578; Hannum v. Bank of Tennessee, 1 Coldw. 898; Broom's Legal Maxims, Nova constitutio futuris formam imponere debet non præteritis. But see Pardo v. Bingham, L. R. 4 Ch. 735.

Further restrictions are sometimes imposed by the state constitutions forbidding the legislature to exercise judicial functions. On this ground it has been held, for instance, that the legislature cannot confirm and declare valid proceedings in invitum in insolvency held before a person having no jurisdiction, which the supreme court of the state had adjudged to be void. Denny v. Mattoon, 2 Allen, 361. See also Richards v. Rote,

The constitutions of some states expressly prohibit retrospective laws. See Rich v. Flanders, 39 N. H. 304; Goshorn v. Purcell, 11 Ohio St. 641; De Cordova v. Galveston, 4 Texas, 470. And it is always laid down as a rule of construction that, to avoid injustice or unconstitutionality, a statute is to be taken as prospective only, unless its language is inconsistent with that interpretation. [9 Q. B. D. 672;] McEwen v. Den, 24 How. 242; Quackenbush v. Danks, 1 Denio, 128; s. c. 3 Denio, 594; 1 Comst. 129; Atkinson v. Dunlap, 68 Penn. St. 48.

utes 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 or acknowledged. 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 recognized and enforced. (b) But the cases cannot be extended beyond the circumstances on which they repose, without putting in jeopardy the energy and safety of the general principles. (c)

and he may be released from imprisonment by the legislature, without impairing the obligation. So statutes of limitation relate to the remedies. It, however, seems to me, that to lessen or take away from the extent and efficacy of the remedy to enforce the contract, legally existing when the contract was made, impairs its value and obligation. The Supreme Court of the United States, in Mason v. Haile, 12 Whea ton, 378, adopted and established the above dictum of Ch. J. Marshall, but not without a frank and just objection on the part of Mr. Justice Washington. He observed, that the great and intelligible principle upon which the cases of Sturges v. Crowninshield and Ogden v. Saunders were decided was, that a retrospective state law, so far as it operated to discharge or vary the terms of an existing contract, impaired its obligation, and that a prospective law in its operation had not that effect; and that in the last case cited this principle was subverted, and the distinction between retrospective and prospective laws, in their application to contracts, disregarded, and that to abolish imprisonment for debt, and apply it to existing contracts, impaired their obliga. tion. In the subsequent case of Jackson v. Lamphire, 3 Peters, 280, it was observed that state legislatures had the undoubted right to pass recording acts, by which the elder grantee should be postponed to a younger, if the prior deed was not recorded within a limited time. They have the like power to pass limitation laws affecting the time of the remedy on existing contracts. [Curtis v. Whitney, 13 Wall. 68; ante, 419, n. 1.]

(b) Goshen v. Stonington, 4 Conn. 209; Wilkinson v. Leland, 2 Peters, 627 ; Langdon v. Strong, 2 Vermont, 234; Watson v. Mercer, 8 Peters, 88; 3 Story's Comm. on the Constitution, 267.

(c) Retrospective laws, as used in the constitutions of Tennessee, North Carolina, and Maryland, mean laws impairing the obligation of contracts. Peck (Tenn.), 17. The Supreme Court of the United States, in Satterlee v. Matthewson, 2 Peters, 413, and in Watson v. Mercer, 8 id. 110, declared that the Constitution of the United States did not prohibit the states from passing retrospective laws, devesting antecedent vested rights of property, provided such laws did not impair the obligation of contracts, or partake of the character of ex post facto laws. The same doctrine was declared by the Chief Justice of the United States, in Charles River Bridge v. Warren Bridge, 11 Peters, 539, 540. But though the Constitution of the United States does not reach such state laws, they remain, nevertheless, to be in most cases strongly condemned, as being contrary to right and justice.

It seems to be settled, as the sense of the courts of justice in this country, that the legislature cannot pass any declaratory law, or act declaratory of what the law was before its passage, so as to give it any binding weight with the courts. It is only evidence of the sense of the legislature as to the preëxisting law. (See the case of