3 N.H. 473 | Superior Court of New Hampshire | 1826
delivered the opinion of the court.
The statute of June.30, 1825, entitled “ an act for the “ limitation of actions and preventing vexatious suits,” is, by its express terms, applicable only to actions commenced after its enactment ; and the last section of that act repeals all the statutes, which were previously iu force, for the limitation of personal actions. If, therefore, the repealing clause of that statute can take effect with respect to actions which were pending on the 30th June, 1825, there is now no statute of limitations which can be held to be a bar to such actions.
Bus it is contended on the part of the defendant, that the repealing clause of that statute is, so far as regards action’s then pending, repugnant to the constitution of this state, and therefore wholly inoperative ; and the question, which this case presents- for our decision, is, whether that clause in the statute is in that respect warranted by the constitution.
The clause in the constitution, upon which the defendant relies, is the 23d article in the bill of rights. “ Retrospec- “ tive laws are highly injurious, oppressive, and unjust. “ No such laws, therefore, should be made, either for the “decision of civil causes, or the punishment of offences.” We shall, therefore, proceed to examine that article, and endeavor to ascertain its meaning, and to see in what cases, and to what extent it is to be considered as a limitation of the power of the legislature.
It is evident from this article in the bill of rights, that there are different kinds of retrospective laws ; for two species are here enumerated — retrospective laws for the decision of civil causes, and retrospective laws for the punishment of offences. We shall, in the first place, advert to letrospeclive laws for the punishment of offences, or to ex post jacto laws, as they are usually called ; because their
Blackstone, in his commentaries, describes a law as ex post facto, “ w'hen, after an action indifferent in itself is commit- “ ted, the legislature then, for the first time, declares it to have been a crime, and inflicts a punishment upon the u person who has committed it.” 1 Black. Com. 46.
Chase, J., in the case of Colder & wife vs. Bull & wife, (3 Dallas 386,) gives a much fuller description of ex post facto laws, than that of Blackstone. He lays it down, that ever) law, which makes an action done before the passing of the law, and which was innocent when done, criminal, and punishes such action ; or which aggravates a crime, and makes its greater, than it was when committed ; or which changes the punishment, and inflicts greater punishment, than the law annexed to the crime when committed; or which alters the legal rules of evidence, and receives less or different testimony, than the law required at the time of the commission of the offence, in order to convict the offender, is an ex post facto law. -
And the terms in w'hich ex post facto laws are denounced and proscribed in the constitutions of other states in the union, may aid us in forming an accurate conception of their nature. The constitution of Massachusetts contains a declaration, that “ laws made to punish for actions done before is the existence of such laws, and which have not been do-a dared crimes by precéding laws, are unjust, oppressive, a and inconsistent with the fundamental principles of a free i£ government.” In the constitution of Nnrth-Carolina it is declared, that retrospective laws, punishing facts com* iC milted before the existence of such laws, and by them
In the constitution of Mississippi it is provided, that “no “ person shall be punished hut in virtue of a law, established “ and promulgated prior to the offence, and legally applied ”
The constituí ion of Tennessee declares, that “ the laws “ made lor the punishment of facts committed previous to “ the existence of such laws, and by them only declared “criminal, are contrary to the principles of a free govern- “ merit ; wherefore no ex post facto law shall be made,”
It is worthy of remark, that it is not declared in the article of our bill of rights, which we are now considering, that no retrospective law ought to be made for the trial of criminal causes, hut that no such laws ought to be made for the punishment of offences. A statute, on which a prosecution for a crime depends, may be repealed, and the prosecution thus defeated ; yet, although the act effecting such repeal is a retrospective law for the decision of the cause, it is not within the prohibition of this article, because it is not a retrospective law for the punishment of an offence.
No statute is to be considered ex post facto, which mollifies the rigor of the criminal law, but only those that create or aggravate the crime, or increase the punishment, or change the rules of evidence for the purpose of conviction, 2 Pick.. 165, the case of Ross.—3 Dallas 391.
It therefore seems, that a retrospective law for the punishment of an offence, within the meaning of our bill of rights, must be a law made to punish an act previously done, or to increase the punishment of such act, or ⅛ some way to change the r ules of law in relation to its punishment, to the prejudice of him who committed it. In other words, it must be a law establishing a new rule for the punishment of an act already done.
The only object of this clause in the bill of rights was to protect individuals against unjust and oppressive punishment. Therefore, while it withholds the power to make retrospective laws for the punishment of offences, it leaves to the legislature the power to make such laws, at its discretion, for the mitigation of punishment.
A law for (he decision of a cause is a law prescribing the rules by which it is td be decided -a law enacting the general principles bv which the decision is to be governed. And a retrospective law for the decision of civil causes, is a law prescribing the rules by which existing causes are to be decided, upon facts existing previous to the making of the law. indeed, instead of being rulesfor the decision of future causes, as all laws are in their very essence, retrospective law s for the decision of < i vil causes are. in their nature, judicial determinations of the rules, by which existing causes shall be settled, upon existing facts. They may relate to the grounds of the action, or the grounds of the defence, both of which seem to he equally protected by the constitution. Andas, on the one hand, it is not w ithin the constitutional competency of the legislature to annul by statute any legal ground, on which a pending action is founded, or to create any new bar, by which such an actian may be defeated ; soy on the other hand, it is believed, that no new ground for the support oí an existing action can be created by statute, nor any legal bar to such an action be thus taken away. A stat-ine, attempting any of these things, seems to us to be a retrospective law fur the decision gí civil causes, within the prohibition of this article in the bill of rights, It is the province oí the legislature to provide rules for the decision of iurure causes. It is the province of courts to determine by what rules existing causes are to be decided.
There are several adjudged cases which seem to us clearly to shew, that this is the true meaning of the clause in the fail! of rights, which we have now under consideration.
In the. ease of Dash vs. Van Kleech, (7 John. 477,) where the nature of retrospective laws was much discussed, the question arose in the following manner. A statu I o of the
In the case of the Society vs. Wheeler et al. (2 Gallison 105,) a writ of entry was brought in the circuit court ofThe United States in the year 1807, to recover a tract of land in Westmoreland, in this state. The tenants alleged, that they had been in possession of the land, under a supposed legal
in Holden vs. James, (11 Mass. Rep. 396.) it was decided in the supreme court of Massachusetts, that the legislature could not suspend the operation of a statute of limitations in favor of one individual only, in delivering the opinion of the court, Jackson, J. said, “ it would not be an exercise of “ greater power to enact, that JUr. James, the defendant in 1 this suit, should not he he'd to answer to any suit com* ‘ menced against him, as administrator, after the expiration “ of two years fi om the time of his accepting that trust, ** than it would be to enact, that he should he held to an* ⅞£ swer to any Hich suit commenced within six years. It “ could not in ei her case he properly considered a suspend* ‘s ing of the law, which limits such actions 1o four years, %i but it would be enacting a new and different rule for the gov- “ ernmenf of one particular case.'’
The case of Walter vs. Bacon, (8 Mass. Rep. 468,) was debt upon a bond, with a condition, that Bacon should con*
. In the case of Merrill vs. Sherburne, (1 N. H. Rep. 199,) a statute, purporting to grant a new ti • in a civil cause, after a final judgment had been renden*! was held to be a retrospective law, within the meaning of this clause in the bill of rights, and wholly inoperative.
But it has been decided in this court, thil an action brought upon a statute to recover a penalty, mig' ■ be defeated by a repeal of the’ statute after the action was commenced. 1 N. H Rep ( Lewis vs. Foster. In that case, however, no objection was taken by counsel to the validity of the repealing statute ; nor was its validity examined by the court
We have a averted to these various cases, in order to illustrate the general nature of retrospective laws. There is no safer method to ascertain the correctness of a particular principle, than a close examination of it its its application to various particular cases. The more widely this can be done, the more accurately may its soundness be tested. No general principle can be safely established by an examination of its operation in one instance only. The roost attentive examination we have been able to give to the clause in the constitution, which we are now considering, has satisfied us, that it was intended to prohibit the making of any law, prescribing new rules for the decision of existing causes, so as to change the ground of the action, or the nature of the defence. We think that such was the intention, because it is fit and proper that the prohibition should go to that extent; Retrospective laws of that kind deserve to be denounced, as they are denounced in our constitution, as highly injurious, oppressive, and unjust. They have been denounced by the most sound and intelligent jurists and statesmen in every age. We think that such was the intention, because the establishment of new rules for the decision of existing cases is in its nature an exercise of judicial power — a power, which the thirty-seventh article of the bill of lights declares ought to be kept separate from, and independent of, the legislative power ; and because the union of the legislative and judicial power in the same branch of the government is, in its very essence, tyranny. We think that such was the intention, because it is most manifestly injurious, oppressive,
We will now consider how this doctrine of retrospective laws applies to the case now before us, Woart brought his action against Winnick on the 12th April, 1»25 upon a note made in the year 1817. By the law, as it stood when the action was brought, Winnick had a right to insist upon the lapse ol six years after the promise, and before the commencement of the action, as a legal defence to the action. But, if the last section of the statute of June 30th, 1825, repeals the statute, on which that defence rested, he has now no defence in that respect. That to give the statute that construction and operation, in relation to this cause, would be to make it a law prescribing a new rule for the decision of an existing cause, is much too clear to need elucidation. By the rule of law in force when this action was commenced, this defendant is entitled, upon these pleadings, to judgment. If that rule of law is now repealed, and no longer the rule, the plaintiff is, upon the same pleadings, entitled to judgment.
And we are of opinion, that the statute of June 30th, 1825, does not, so far as respects actions then pending, repeal the statutes of limitations, which had been previously in force. We think, in the first place, that the legislature had no constitutional authority so to repeal them. And, in the next place, we are satisfied, that it was not the intention of the legislature to repeal those statutes, with respect to existing actions. We do not believe that this was the intention of any individual in either branch. We draw this conclusion from the circumstance, that the statute of June 30th, 1825, adopts not only the principles, but the language of the former statutes of limitation, and makes no change in the
This construction of the repealing clause in the statute is, we concede, contrary to the letter But it is required by the constitution. It is in accordance with what we believe to have been the intention of the legislature. It is justified by the soundest rules of construction, and is warranted by many authorities, entitled to the highest respect. 16 Mass. Rep. 215, Medford vs. Learned.—4 D. & E. 2, Williams vs. Pritchard.—7 John. 477.—4 Burr. 2460, Couts vs. Jeffries.—10 Mass. Rep. 437, Whitman vs. Hapgood.—2 Gall 105,—2 Shower 17.—2 Mod. 310.—2 Lev. 227.-2 Jones 108.—1 Vent 330.—8 Mass. Rep. 423.
We are therefore of opinion, that there must be
Judgment for the defendant»