Document Type

Article

Publication Date

1881

Abstract

There has always been some regret that, when the Federal judiciary was called upon to interpret and apply the prohibition in the Constitution of ex post facto laws,1 it did not reach the condlusion that retrospective laws were forbidden, as well where they applied to civil rights as when they concerned criminal liabilities or penalties. The famous twenty-ninth chapter of the great charter placed the protection of liberty and property upon the same basis, and the power to reach the one by indirection is subject to the same objections in principle, that could be urged against the power to reach the other by the same method. This is so strongly felt that tile courts, while compelled by authority to admit the power to pass retrospective laws, nevertheless refuse to find that the power has been exercised in a particular case, unless the terms of the statute are such as imperatively to require it.2 Some States have deemed it wise to forbid retrospective laws altogether, and this has relieved the judicial mind of some embarrassment, though such a prohibition must still leave optn the question what a retrospective law is. In New Hampshire it is held, that a statute regulating and modifying remedies is not retrospective, though made to apply to causesof action previously existing.3 The same ruling has been had in Tennessee;4 and even in criminal cases the modification of remedies may be made to apply to previous offenses, provided the modifications are not such as to deprive accused parties of substantial rights.3 On the other hand, to give a right of action where none existed before, is clearly retrospective.5


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