Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1868-04-03
MEMPHIS APPEAL
THE BIEL TO PREVENT DECISION Oh
A CONSTITUTIONAL QUESTION B1
TH1E SUPREME COURT.

I jas @bEitC&Nluu- 70 De NIscIAIBtu VI q
writ Of Habeas Corpus. The purpose
openly avOwed, lie, to prevent decision
By that Court that the Reconstruction
Acts are unconstitutional, and that Con-
gress cannot establish Military Depot
isns, or exercise any powers not granted
by the Constitution, any where within
the limits of the dominion Of the United
States.
The ease OF BCCARDLE had been ar
gIed and submitted, before the amend
ment repeating the act of 1867, allowing
appeals in such cases, was made to bill
for another purpose. The Court, where
party dies after submission, if even a
term has elapsed, has power'to enter and
viii enter the Judgment nUlc pro tune,
rs of the day Of the submission. The
party bad a right to the decision then.
Ia England, all judgments were, in legal
contemplation, rendered on the first day
Of the Term, the whole term being, in
that contemplation, but a single day /;
and that is still the law for the Supreme
Court.
In Dash Us. Van K5eeek, John r. Az,
Ch. Justice KENT said:
It's a principle in the English COM
mon law, as ancient as the law itself,
that statute, even of its omnipOtent
Parliament, is not 10 have retrospect
i've effect. NoUd cOnstitlRiO Juturis for
nam dc5et iBjpOHere, non lTGteTitiS.
lRYaoI1n, LID. t, fol. 22S; , Inst, 282.)
Ihss was the doctrine as laid down by
szset0u auj Coke; and in Gilmore VS.
ssguser. y Mod, 80: Lev, 227 4; 2 Jones,
les II received a solemn recognition in
the Court Of Kings Bench. In that case
g anit was brought after the 24th June,
1871. upon a psrOl promise made before
tHat date, but to be performed after that
date; and the question WAS, whether it
was void BY the statute Of frauds and
peTiuriet. which enacted that i" from and
after the 24th June, 1917, DO action should
be brought to charge any person upon
any agreement made in consideration OF
marriage, etc, unless such agreement bS
in writing" etc. IL was admitted that
the promise declared on was Of the same
kind with those mentioned in the statute;
bat the Court agreed unanimously that
the statute was to be read by tr&Bspo-
sition Of the words, for that 10 J0Gs not to
be presumed that the act had q retrospect
to take aJgay an action to lUtich the plain
TN tCdS then entitled, and that the other
construction would make the act repug-
nsnt TO common Justice. When we con-
slider that this decision was pronounced
as early ss the reign of Charles H., We
are f0clbiy impressed with the spirit Of
equity and the Independence Of the En-
H.
case Of Couch vs. Jeffries, a Burrow,
24CU.) which was qIi tam suit for ii pen
atty, the question was whether a statute
passed after the commencement of the
suit, allowing deiinqueGts, by such q
day, % pay stamp duty, and rid them
selves Of the penalty, should affect the
case Of q sat already commenced, and
the Court Of Kings Bench unanimously
determined that it could not. 1T can
never De the true construction of this
act,U said Lord Mansfield, "to take
away this vested right, and punish the
innocent pursuer of it with costs"
The maxim in BraCtOn was probably
taken from the civil law, for We find in
that system the same principle that the
Iawgiver cannot alter his mizd to the
prejcGice Of 8 vested right. Memo POtest
1lutaTs cOas5liJ11 SUM ia uiteTius illjtt.
giaH. Digest so, Il, 75.) This maxim
Of Papinian IS general in its terms but,
Dr.. Taylor Elements of the Civil Law,
I6S } applies il directly as a restriction
upon the lawgiver and declaration in
tie Code leaves no doubt as to the sense
Of the civil law. LegsS ct c0TlSt5tutiOnes
filtufjs csTiitHI eSt'Gdre JOYBaGDl 1egotifS,
non cd fuctG prBterita TeU0c0ri, nfsi
aODliaatiHl, et dc pr,EteTito ten1pore, ct
Cdbuc peadentijuS HeQGtiiS cG2ftuB1 sit.
lC0de, /, Il, - This passage, according
TO the best Interpretation Of the civilians,
relates not merely 10 future suits, but to
future, as COntra-dIstinguished from past
contracts and vested rights. 1t is, in
deed, sdDitted that the prince may
enact q rstrOspeCtigs lew, provided it be
done expressly for the iCi1 Of the prince
un3er tie desDOtisH5 Of the Roman I.Ppe-
rOrs zcGs paramount 10 eJery obligation.
Great latitude was anciently allowed to
legislative exposiuOus of statutes for
me separation Of the Judicial from the
legislative power was not then distinctly
known OF prescribed. The prince was
in the habit OF interpreting his own laws
for particular occasions, This was called
the lfGgi1cUtiO priacipjS 4; and this, ac-
cording TO Huber's definition, was qBG11dO
principles inter parties IOqUdRtlT, ct Jus
dica1tt (Pfe.cc, Juris, ROM, vol. ,,
545l No correct civilian, ami, especi
ally, no proud ddnireT Of the ancient
EeguLEc. If any such thsn existed
cOUEJ hare reflected on this Interference
grith gY1r1te rights and pending suits
rr55l5tt disQlSt and Indignation and |
We are rather surprised 20 fiud, that un- /
der the violent and irregular genius of |
the Roman Government, tbs principle |
before Us should have been acknowledged /
and obeyed to the extent in which We |
fndit The fact shows that it must be /
founded ia the clesTest justice.
Oar cose is happily Ue7y different from |
.acs y tag subjects Of JuStiHJda.
Fsth ls me g0lgsr Of the Laughter is |
lisifed and defined; the Judicial is re-
garded as a disInct, independent power; |
private rights have been better under /
s s,ocd aud more exalted in public estima-
ton, SIS well as secured by prOpisiojts die /
tateG ty the spirit of freedom, and I'M
known to civil Law. Our Constitutions |
40 not admit the pOWer assumed by the |
RO8saH prince; and the principle We are
is now to be regarded as sG-
cred, Il is not pretended that we have /
any express constitutional provision on |
ths sut;ect-aor hSYs We any for hume
ibAS OAAlEA 4AE1 AAlo NNesA NA=ffF W AANCe-N-AA
and to Justice. An eX post facto lsW, in |
the strict technical sense of the term, is
usually understood TO apply TO criminal |
cases, and this is its meaning when used /
n ths Constitution of the United States |
yet laws impairing previously acquired |
civil rights are equally within the rea-
son Of mat prohibition, and equally TO be |
condemned. We have seen that the l
cases in The English and the Roman civil /
law apply 70 such rights; and we shall /
find upon further examination that there /
is no distinction in principle, nor any |
recognized 10 practice, 6etlCeeg a IgDpiln-
iShiHg q person c7iHiRaHy for past in
nOce1lt act, or Furnishing him eiUiLly By d.
resting him Of q IdUfully acquired right. |
The distinction consists onIy in the de-
gree OF The oppression, and history teaches
Us ths1 the QOUer7lBleHt l0liich can deii6e-
rate,y UioiatG the one right soon ceases to
regard the other.
There has not been, perhaps, distin-
gushed jErist or elementary writer /
within the last two centuries who has
had occasion to take notice of retrospect
tive laws, either civil or criminal, but |
has mentioned them with cauIisn, dis
trust, or disapprObatiOn. Numerous au-
thorities might be cited, but 1 will select /
Only two, and those no ordinary names. |
Lord Bacon gives more liberation TO re-
and particularly to declara-
tory, laws than can now be admitted un-
der our more precise and accurate distri-
button and limitation Of the powers of I
yet be was, at the same
ume, duly sensible Of their danger and |
Injustice. He confines them To special 1
cases, limits them with soiicitude, and
speaks Of them in general with reproach.
Leqes qtlog retrospicitglt TarO, ct magma
cum cCtUtjOBe sUlt ddhibendR neQue
enim piacgt Janus iR Legi6us, etc. Fuf-
iendOi lays down, without any quali6-
cation, general and pointed cOndemnA-
tloR OF sll such laws, (Droit de la
\ Sat,, Lib. ], C. 8, 6.)
Tnls train Of authority, declsratory of
the common senss ana reason Of the
most civilized States, ancient and mod
err, on the point before Us is sufficient,
10 put II at rest, and to cause
lOt only the Judicial, but the legislative
aufhpri-y IN how with ravaranqa tc sunh |