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.

* 454

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 difficulty in New York, in respect to the competency of the courts

(a) See decisions in the state courts to the same point, in 1 N. H. Rep. 199. 12 Serg. & Rawle, 330, 339. Charlton's Rep. 176. 1 Harr. & Johns. 236. 1 Hayw. 28. 2 Hayw. 310, 374. 1 Murphy, 58. 3 Desauss. 476. 1 Rep. Const. C. S. C. 267. Le Breton v. Morgan, 16 Martin's Louis. Rep. 138. Hoke v. Henderson, 4 Dev. N. C. Sup. Court Rep. 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 Missouri Rep. 303. But this last point was left in doubt, in B. and N. F. Railroad v. City of Buffalo, 5 Hill's N. Y. Rep. 209.1

1 In De Bow v. The People, 1 Denio, 9, it is held that the judges, in declaring what the law is, may and should, if need be, examine the engrossed bills on file in the office of the Secretary of State, or, it seems, may consult the journals of the houses; and see Purdy v. People, 4 Hill, 384; Com. Bank of Buffalo v. Sparrow, 2 Denio, 97; Spangler v. Jacoby, 14 Ill. 297; People v. Supervisors, 4 Seld. 317.

to declare a statute unconstitutional, when it clearly appeared to be so. Thus, in the case of The People v. Platt, (a) 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 forever remain a monument of the wisdom, firmness, and integrity of the council. (b)

When a

effect.

A statute, when duly made, takes effect from its statute takes 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, (c) and it was * 455 likewise so adjudged in the Circuit Court in Massa

(a) 17 Johns. Rep. 195.

(b) 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. U. S. 236. 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 decision of the same court, in Bend v. Hoyt, 13 Peters, 263, recognized principles that seem to be at variance with the above decision. (c) 7 Wheaton, 164.

The time when an Act approved and signed by the President takes effect, can properly appear only from the Act itself. It goes into operation the day on which it is approved, and has relation to the first moment of that day. In re Welman, 20 Vermont R. 653.

chusetts, 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 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) 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 en

1

*456

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

(b) 7 Johns. Rep. 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, sec. 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 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 New Hampshire Rep. 199. Ward v. Barnard, 1 Aiken, 121. Brunswick v. Litchfield, 2 Greenleaf, 28. Proprietors of Ken. Pur. v. Laboree, Ibid. 275. Story, J., in Wilkinson v. Leland, 2 Peters's U. S. Rep. 657, 658. Lewis v. Brackenridge, 1 Blackford's Ind. Rep. 220. Jones v. Wootten, 1 Harrington's Del. R. 77. Forsyth v. Marbury, R. M. Charlton's Rep. 333. Boyce v. Holmes, 2 Ala. R. N. s. 54. Williamson v. Field, 2 Sandford's Ch. R. 534.

'If statutes are not in terms retrospective, they will not receive that effect by construction, where injustice would be therby produced. Danks v. Quackenbush, 3 Denio, R. 594. Hooker v. Hooker, 10 Smedes & Marsh. R. 599.

forcing existing obligations. (a) 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 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 rec

(a) Duncan, J., in Underwood v. Lilly, 10 Serg. & Rawle, 101. Tate v. Stoolzfoos, 16 Ibid. 35. Bleakney v. F. & M. Bank, 17 Ibid. 64. Hepburn v. Curts, 7 Watts, 300. Foster v. Essex Bank, 16 Mass. Rep. 245. Locke v. Dane, 9 Ibid. 360. Oriental Bank v. Freese, 18 Maine R. 109. Townsend v. Townsend, Peck's Tenn. Rep. 16, 17. Ibid. 266. State v. Bermudez, 22 Louisiana R. 355. In Patin v. Prejean, 7 Louis. Rep. 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 might 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!!2 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, 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 Wheaton, 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 in the last case cited this principle was subverted, and the distinction between retrospective and prospective laws, in their application to contracts, disregarded, and

1 So an Act was held valid, which remedied defects and informalities in the constitution of a banking corporation, by declaring that the bank should be deemed to have been well organized. Syracuse City Bank v. Davis, 16 Barb. 188.

2 The legislative power of a state is only limited by a constitutional prohibition of ex post facto laws, and of laws impairing the obligations of contract. Baltimore & S. R. R. Co. r. Nesbit, 10 How. U. S. 395. Wilson v. Hardesty, 1 Maryland Ch. R. 66. McLeod v. Burroughs, 9 Georgia, 213.

ognized and enforced. (a) 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. (b)

The English rule formerly was, that if no period was fixed by

that to abolish imprisonment for debt, and apply it to existing contracts, impaired their obligation. 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.

Mercer, 8 Pe

(a) Goshen v. Stonington, 4 Conn. Rep. 209. Wilkinson v. Leland, 2 Peters's U. S. Rep. 627. Langdon v. Strong, 2 Vermont Rep. 234. Watson v. ters's U. S. Rep. 88. 3 Story's Com. on the Constitution, 267.

(b) Retrospective laws, as used in the constitutions of Tennessee, North Carolina, and Maryland, mean laws impairing the obligation of contracts. Peck's Tenn. Rep. 17. The Supreme Court of the United States, in Satterlee v. Matthewson, 2 Peters, 413, and in Watson v. Mercer, 8 Ibid. 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.1

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 the Acts alluded to, post, vol. ii. pp. 23, 24.) The powers of government in this country are distributed in departments, and each department is confined within its constitutional limits. The power that makes, is not the power to construe the law. That latter trust belongs to the judicial department exclusively. Kent, Ch. J., in Jackson v. Phelps, 3 Caines, 69. Ogden v. Blackledge, 2 Cranch, 272. Jones v. Wootten, 1 Harrington's Del. R. 77. Field v. The People, 2 Scammon's Ill. Rep. 79. Cotton v. Brien, 6 Robinson's Louis. R. 115. When Lord Bacon composed his admirable aphorisms, De Fontibus Juris, he assumed the proposition that declaratory statutes communicated an interpretation that was as efficacious as if it had been contemporary with the passage of the statute. But in his age, the partition of power among departments was not accurately understood, or precisely defined, or constitutionally limited; and he held, notwithstanding, that they ought not to be passed, except in cases in which a retrospective operation to a statute would be just-leges declaratorias ne ordinato, nisi in casibus, ubi legis eum justicia retrospicere possint. Bacon's Works, vol. vii. 450. Aphorism, 51.

1 By art. ii. § 28, of the present constitution of Ohio, "the general assembly shall have no power to pass retroactive laws." The constitution of Tennessee contains a similar provision.