law ex post facto, or one which impairs the obligation of contracts. By the second article of the Constitution of Connecticut, it is affirmed that "the powers of government shall be divided into three distinct departments, and each of them confided to a separate magistracy, to wit-those which are legislative, to one; those which are executive, to another; and those which are judicial, to another." The law of May, 1820, has been considered as the exercise of a judiciary power, and for this reason, in contravention of the Constitution; but the supposition is wholly destitute of support, as the act in question does not affect to give a construction to the former law, but most manifestly purports to impart validity to certain proceedings which were erroneously supposed to be legal and which the statute did not authorize. The power exercised, in its nature, is exclusively legislative, and not opposed to the recited articles of the Constitution.

Lastly, the defendants have insisted, (and on this objection the principal stress has been laid), that the law of May, 1820, being retrospective and in violation of vested rights, it is the duty of the court to pronounce it void. The retrospection of the act is indisputable, and equally so is its purpose to change the legal rights of the litigating parties. Whether in doing this there has been injustice, will be an enquiry in a subsequent part of my opinion.

It is universally admitted and unsusceptible of dispute that there may be retrospective laws impairing vested rights which. are unjust, neither according with sound legislation nor the fundamental principles "of the social compact." If, for example, the legislature should enact a law, without any assignable reason, taking from A. his estate, and giving it to B., the injustice would be flagrant, and the act would produce a sensation of universal insecurity.

On the other hand, laws of a retroactive nature affecting the rights of individuals, not adverse to equitable principle and highly promotive of the general good, have often been passed, and as often approved. In the case before us, the defendants have expressly conceded that the law in question is valid, so far as respects the persons de facto married and their issue. But, in that event, would it not have a retrospective operation on vested rights? The man and woman were unmarried, notwithstanding the formal ceremony which passed between them, and free, in point of law, to live in celibacy, or contract matrimony with any person, at pleasure. It is a strong exercise of power, to compel two persons to marry, without their consent; and a palpable perversion of strict legal right. At the same time, the retrospective law, thus far directly operating on vested rights, is admitted to be unquestionably valid, because it is manifestly just.

I very much question whether there is an existing government in which laws of a retroactive nature and effect, impairing vested rights but promotive of justice and the general good, have not been passed. In England, such laws frequently have been enacted; and the act of 26 Geo. II, cap. 33, giving validity to former marriages celebrated in any parish church or public chapel, is precisely of this description. Doug. 661, note. In the neighboring state of Massachusets there have been many such laws (Foster et al. v. Essex Bank, 16 Mass. from 257 to 261, 8 Am. Dec. 135); and the interposition of our own legislature, in similar cases, is familiar to gentlemen of the profession. The judgments of courts, when by accident a term has fallen through, have been established; the doings of a committee and conservator, not strictly legal, have been confirmed; and other laws have been passed, all affecting vested rights; but, being incontrovertibly just, no disapprobation has ever been expressed. * * *

I cannot harmonize with those who deny the power of the legislature to make laws in any case, which, with entire justice, operate on antecedent legal rights. A retrospective law may be just and reasonable; and the right of the legislature to enact one of this description I am not speculatist enough to question. * ** The act of May, 1820, was intended to quiet controversy and promote the public tranquility. Many marriages had been celebrated, as was believed, according to the prescriptions of the statute. On a close investigation of the subject, under the prompting scrutiny of interest, it was made to appear that there had been an honest misconstruction of the law; that many unions, which were considered as matrimonial, were really meretricious; and that the settlement of children, in great numbers, was not in the towns of which their fathers were inhabitants, but in different places. To furnish a remedy coextensive with the mischief the legislature have passed an act, confirming the matrimonial engagements supposed to have been formed and giving to them validity as if the existing law had precisely been observed. The act intrinsically imports that the legislature considered the law of May, 1820, to be conformable to justice, and within the sphere of their authority. It was no violation of the Constitution; it was not a novelty; such exercise of power having been frequent, and the subject of universal acquiescence; and no injustice can arise from having given legal efficacy to voluntary engagements, and from accompanying them with the consequences, which they always impart. *

New trial denied.2

[PETERS, J., thought the act unconstitutional, but concurred in the result on other grounds.]

2 In Mech. Sav. Bank v. Allen, 28 Conn. 97, 102 (1859), in upholding a statute validating certain prior loans where usury had been innocently committed, McCurdy, J., said: "This subject was thoroughly investigated in the

UNITED STATES v. HEINSZEN (1907) 206 U. S. 370, 382, 386, 387, 27 Sup. Ct. 742, 51 L. Ed. 1098, 11 Ann. Cas. 688, Mr. Justice WHITE (upholding a federal statute of 1906, ratifying the collection of tariff duties illegally imposed upon imports into the Philippine Islands between 1899 and 1902, and passed while this suit was pending to recover them as paid under protest):

"That where an agent, without precedent authority, has exercised, in the name of a principal, a power which the principal had the capacity to bestow, the principal may ratify and affirm the unauthorized act, and thus retroactively give it validity when rights of third persons have not intervened, is so elementary as to need but statement. That the power of ratification as to matters within their authority may be exercised by Congress, state governments, or municipal corporations, is also elementary. [Here are discussed Hamilton v. Dillin, 21 Wall. 73, 22 L. Ed. 528, and Mattingly v. Dist. Columbia, 97 U. S. 687, 24 L. Ed. 1098.]

* * *

"It is urged that the ratifying statute cannot be given effect. without violating the fifth amendment to the Constitution, since to give efficacy to the act would deprive the claimants of their property without due process of law, or would appropriate the same for public use without just compensation. This rests upon these two contentions: It is said that the money paid to discharge the illegally exacted duties after payment, as before, 'justly and equitably belonged' to the claimants, and that the title thereto continued in them as a vested right of property. It is consequently insisted that the right to recover the money could not be taken away without violating the fifth amendment, as stated. But here, again, the argument disregards the fact that when the duties were illegally exacted in the name of the United States Congress possessed the power to have authorized their imposition in the mode in which they were enforced, and hence, from the very moment of collection, a right in Congress to ratify the transaction, if it saw fit to do so, was engendered. In other words, as a necessary result of the power to ratify, it followed that the right to recover the duties in question was subject to the exercise by Congress of its undoubted power to ratify. *

*

case of Goshen v. Stonington, 4 Conn. 209, 10 Am. Dec. 121, and the questions now raised were elaborately discussed and were supposed to be settled. The retroactive law objected to in that case was far more extensive in its effects than the statute of 1856. It made husbands and wives of persons who, except for its provisions, were single. It made children legitimate who were otherwise bastards. It altered settlements, and conferred new rights, and imposed new duties and restrictions upon towns and individuals. It changed lines of descent and deranged rules of property. The principle adopted was, in substance, that when a statute is expressly retroactive, and the object and effect of it is to correct an innocent mistake, remedy a mischief, execute the intention of parties, and promote justice, then, both as a matter of right and of public policy affecting the peace and welfare of the community, the law should be sustained."

"But if it be conceded that the claim to a return of the moneys paid in discharge of the exacted duties was, in a sense, a vested right, it in principle, as we have already observed, would be but the character of right referred to by Kent in his Commentaries, where, in treating of the validity of statutes retroactively operating on certain classes of rights, it is said (vol. 2, pp. 415, 416): 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. Goshen v. Stonington, 4 Conn. 209, 10 Am. Dec. 121; Wilkinson v. Leland, 2 Pet. 627, 7 L. Ed. 542; Langdon v. Strong, 2 Vt. 234; Watson v. Mercer, 8 Pet. 88, 8 L. Ed. 876; 3 Story, Const. 267.'

"Nor does the mere fact that, at the time the ratifying statute was enacted, this action was pending for the recovery of the sums paid, cause the statute to be repugnant to the Constitution. The mere commencement of the suit did not change the nature of the right. Hence again, if it be conceded that the capacity to prosecute the pending suit to judgment was, in a sense, a vested right, certainly also the power of the United States to ratify was, to say the least, a right of as high a character.

"Considering how far the bringing of actions would operate to deprive government of the power to enact curative statutes which, if the actions had not been brought, would have been unquestionably valid, Cooley, in his Constitutional Limitations, says (7th Ed. p. 543): **"The bringing of suit vests in a party no right to a particular decision, and his case must be determined on the law as it stands, not when the suit was brought, but when the judgment is rendered.''

*

[BREWER and PECKHAM, JJ., dissented. MoODY, J., did not sit. HARLAN, J., concurred solely on the ground that the ratifying act should be construed as withdrawing the consent of the United States to be sued in the Court of Claims for said duties paid under protest, leaving the personal liability of the collector to be determined.]

APPENDIX

[CONSTITUTION

OF THE

UNITED STATES OF AMERICA]'

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

ARTICLE. I.

SECTION. 1. All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

SECTION. 2. [1.] The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

[2.] No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of the State in which he shall be chosen.

[3.] Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.2 The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Repre

1 This copy of the Constitution (through Amendment XV) is reprinted from American History Leaflet No. 8, published by Parker P. Simmons, New York City. It was prepared by Professors Albert B. Hart and Edward Channing, of Harvard University; and is stated to be the result of a careful comparison with the original manuscripts of the Constitution and Amendments on February 10, 11, 1893, and to be intended to be absolutely exact in word, spelling, capitalization, and punctuation. It is here used by permission of the editors and publisher. One error in spelling and one in paragraphing have been corrected by a comparison with the fac-simile text of the Constitution published in Carson's History of the Celebration of the 100th Anniversary of the Constitution, and the signatures of the signers have also been corrected by this text. Three of the editors' original notes are retained, marked "Ed." The other notes are by the editor of this Casebook. The words and figures inclosed in brackets do not appear in the original manuscripts and are inserted for convenience of reference, most of them being thus used in Leaflet No. 8. The text of Amendments XVI and XVII has been taken from the official certifications of adoption issued by Secretaries of State Knox and Bryan on February 25, 1913, and on May 31, 1913. 2 Superseded by Amend. XIV, [§ 2].—Ed.