act. Stevenson v. Sullivant. court of the state in which the law was passed, and is now the settled law of that land. In the cases of Rich v. Efford, 3 Hen. & Munf. 225, and Sleighs v. Strider, Ibid. 229 note, the court of appeals of Virginia decided, that the act applied to cases of prior births and marriages; but that to give it an application, the father must have been in life, after the passage of the In this case, the father had died, more than ten years before the act took effect, and consequently, the case at bar is not within its operation. But it is said, that the court of appeals were right in extending the law to cases of births and marriages antecedent to the act, but they were demonstrably wrong, in declaring, that the act applied to cases only in which the father had died posterior to the act. To which we answer, that the precedent cannot be divided; if it is to have the authority of a precedent, it must be taken altogether; it cannot be entitled to the authority of a precedent, so far as it favors the opposite side, and be open to dispute, so far as it destroys their position. It has been the settled law of Virginia, since the year 1805; for it was then that Sleighs v. Strider was *decided, and [*232 though its correctness may have been originally doubtful, yet extreme inconvenience follows the disturbance of a rule of property which has been so long settled; and that this argument ab inconvenienti, was of great weight in the estimation of the court of appeals itself, may be seen, from the proposition to reconsider the decision of that court in the celebrated case of Tomlinson v. Dillard, 3 Call 105. The original decision in that case,' which subjected the succession to personal property, to the feudal principle, which, in relation to lands, respected the blood of the first purchaser, had been made in 1801. It having produced great excitement in the state, and being very generally disapproved, a reconsideration was most strenuously pressed in 1810, nine years only after the original decree; but a majority of the court was of the opinion, that the inconvenience of overthrowing what was already considered as a settled rule of property, was too great to be encountered, even if the decision were erroneous at first. It is true, that they thought the decision called for by the stern language of the law; but from one of the judges this opinion was wrung with such manifest reluctance, that it was believed, he would have come to a different result, had the question been res integra. Here, the rule having been settled, the court will say how far it ought now to be considered as the settled law of the state. If, however, these precedents be open to question at all, they are open throughout; and if the court of *appeals erred at all, it was not, in [*233 limiting the operation of the law to cases in which the father has died since the act took effect, but in extending it to cases of births and marriages which happened anterior to the passage of the law. This law took effect on the 1st of January 1787. The births, the marriage, the recognition, and the death of the father, had all occurred in, and prior to August 1776. Had the legislature of Virginia the right to pass a retrospective law? The court of appeals said not, in the cases of Turner v. Turner's executors, 1 Wash. 139, Elliott v. Lyell, 3 Call 269, and Commonwealth v. Hewitt, 2 Hen. & Munf. 187. Even where it has been attempted to apply a new remedy to pre-existing rights, it is said, the language must be irresistibly clear, or the court will not given it such retrospective operation. Does the language of this act clearly intend to operate on pre-existing facts? on pre-existing marriages and births? We contend, that it does not. Stevenson v. Sullivant. In the case of the Commonwealth v. Hewitt, before cited, Judge ROANE, in resisting the retroactive effect of the law, founds himself, in a great measure, on the general nature of laws, as prospective, and on the time assumed by the act itself for the commencement of its operation, from and after the passing thereof. Both considerations concur here, with this further circumstance in favor of this law, that while it has (in the original act) the usual clause, "This act shall commence in force, from and after the passing thereof," a subsequent and distinct law was passed to suspend its operation until the 1st of January 1787. *234] Again, this act commences with a general declaration, most unequivocally prospective. The first clause is, "be it enacted by the general assembly, that henceforth, when any person having title, &c." According to settled rules of construction, therefore, the force of this expression, henceforth, runs through every subsequent clause. The 19th section under consideration ought to be read thus: "Be it enacted that, henceforth (that is, after the first of January 1787), where a man, having by a woman, one or more children, shall, afterwards, intermarry with such woman, such child or children, if recognised by him, shall thereby be legitimated." Is this language so irresistibly retrospective, in relation to the date of the law, that the court is constrained to give it that construction? Is it not, on the contrary, so obviously future and prospective, that it requires subtility and violence to wrest it to a retrospective meaning? The verbs which indicate the acts that are to produce the effect of legitimation, are in the future tense. It is insisted, therefore, that the clause has no application to any case, but to one in which all the facts on which it is to operate, shall happen after its passage; the birth of the children, the marriage and the recognition. It is true, that in speaking of the children, the present participle is used, "having one or more children." But the present tense of this participle relates, not to the time of passing the act, but to the time of the marriage, "having," at the time of the marriage, one or more children." This is not a new use of the present tense; grammarians tell us, that the present tense is occasionally *235] *used to point at the relative time of a future action. The true read. ing of this part of the act is this, "where" (i. e., in all cases, hereafter, in which) "a man shall marry a woman, having by him, at the time, one or more children." Thus, the participle, although present at the time of the marriage, is future in relation to the passage of the act. This is no unusual application of this participle-if I say, "if a man shall go to Rome, and having a dagger in his hand, shall strike it to the heart of the Pope:" the present participle is properly used in it; it is present, in relation to the action, with which it stands connected, though future, in relation to the time of speaking. So, the present participle here is present, in reference to the act with which it clearly stands connected, the act of marriage; although future in relation to the date of the act. The sense is the same as if the legislature had said, "wherever, hereafter, a man shall have one or more children by a woman, and shall, afterwards, intermarry with her," &c. It is only by this construction, which considers both the birth and marriage as future, that the word "afterwards," used in the act, acquires a grammatical sense, or, indeed, any kind of sense. To prove this, let us see what the effect will be, of considering this participle, as used in the present tense, in reference to the time of passing the act. Then, the sense will be, "where Stevenson v. Sullivant. a man now having one or more children by a woman, shall afterwards intermarry with her" it is clear, that the word, afterwards, becomes insignificant and senseless. It adds nothing to the meaning; for if a man now having one or more children by a woman, shall intermarry with *her, he must [*236 of necessity intermarry with her afterwards; for the future verb, shall intermarry, makes the act future, in relation to the passage of the act; and the adverb of time, afterwards, added to the verb, does not perform its appropriate function of adding a new quality to the verb. It is a useless. clog, therefore, on the sense, because its tendency is to obscure, and not to illustrate the sense. Whereas, the construction for which we contend (by considering both facts as posterior to the act, but the marriage as being posterior to the birth), gives the word, afterwards, force and significancy; it then performs the office of arranging the order of the two future events. In this point, we differ from the court of appeals of Virginia, and insist, that the liberality which would apply this act retrospectively, to previous births and marriages, is a liberality which looks beyond the judicial sphere, and belongs only to the legislature. What is the argument on which the court of appeals (and the opposite counsel, after them) ground themselves, in extending this act to antecedent births and marriages? "I see no difficulty," says Judge ROANE, in Rice v. Efford, 3 Hen. & Munf. 231, "except what arises from the words, shall afterwards intermarry, which might seem to import only marriages to be celebrated in future that word, afterwards, however, is rather to be referred to the birth of the children, than the passage of the act; and no good reason could possibly have existed with the legislature, for varying the construction of a section, embracing two descriptions of cases, standing on a similiar foundation." The counsel for the appellants, seizing this passage, has said, the terms, "shall after[*237 wards intermarry," are correctly referred (by the court) to the birth of the children, not to the date of the act. This is not accurate: it is not the three words, shall afterwards intermarry, that are referred by the court to the birth of the children: but the word, afterwards, alone. This, we admit, is correctly referred to the birth of the children: but the court having correctly gained this conclusion, forget the force of the future verb, "shall intermarry." We say, that the force of this future verb requires that the marriage shall be after the act. That henceforth, "where a man having by a woman, one or more children, shall afterwards intermarry with such woman," irresistibly demands a marriage future to the date of the act : that the words, shall intermarry, make the marriage future in relation to the act. The word, afterwards, removes the marriage further off, and marks its futurity in relation to another event, the birth of the children; which other event, although expressed by the present participle, is itself drawn forward into futurity, by the force of the word, afterwards, to which it is attached. That such an intention is utterly inconsistent with the prospective character given to the whole act, by the force of the word henceforth, and in the commencement. That the force of this word runs through the whole act; and that, used in the clause under consideration, it would render the retrospective construction of that clause absurd. In the passage cited, Judge ROANE says, that no good reason could possibly have existed with the legislature, for varying the construction of a section em- [*238 bracing two descriptions of cases, standing on a similar foundation. Stevenson v. Sullivant. This might have been a good argument, on the floor of the legislature, to induce them to embrace past cases; but it is no argument, to prove that they have embraced them. Whether they ought to have embraced them, is a very different question from whether they have actually done so. The first is purely a legislative question; the last, purely a judicial question, and and the only question in the case for the court. But it is said, the appellants do not seek to give the act a retrospective effect; they say that the act, from the time it took effect, clothed the appellants with a new capacity of inheritance, not in relation to rights previously vested, but in relation to inheritances which might thereafter fall. Let it be admitted, that their position is such, let it also be admitted, that the legislature had the right to clothe them with such new capacity in relation to future inheritances. But the question still remains, have they done so : is it to persons in their predicament, that this new capacity of inheritance is extended? We have endeavored to show, that it is not: whether the court look to the exposition of the statute by the tribunals of the state, or whether they look to the construction of the statute, per se. The court of appeals of Virginia while they admit the application of this statute to antecedent births and marriages, decide, that the law applies to cases only where the father has died posterior to the passage of the statute. The reasoning on which the court ground this distinction, is not fully developed by them; the appellants' counsel, infers their reasoning, and as we may safely admit, *239] contests it with success. But there is a reason for requiring that the father should continue in life, after the act, which applies with equal force both to the marriage and the recognition, and corroborates the construction drawn from the language of the law, that both those facts should be posterior to the act. It is this: the statute attaches new legal consequences to the act of marrying a woman, by whom the man had, previously, had children; and to the act of recognising such children. Make the law prospective in those particulars, and the citizens for whose government it was intended, have it in their choice, by performing those acts thereafter, to incur those consequences or not. But attach those consequences to a past marriage and recognition, and you change the legal character of a past transaction by an ex post facto law. By a subsequent law, you attach consequences to an act, which did not belong to it when it was performed. It is precisely for this reason that ex post facto laws are prohibited; because consequences are attached to an act which did not belong to them at the time, and which, consequently, could not have entered into his consideration of the question, whether he would commit it or not. You surprise him by a new case, on which his judgment was never called to pass, and when it is too late to retract the steps, and avoid the new consequences. The next ground taken by the claimants is, that if they were not legitimated by the 19th section of the law of descents, they were made capable of inheriting from Richard, by the 18th section of that *law. (a) It is contended on the part of the appellants, that this clause *240] (a) Which provides, that "in making title by descent, it shall be no bar to a party, that any ancestor through whom he derives his descent from the intestate is, or hath been an alien. Bastards al o -ha'l be capable of inheriting or of transmitting inheritance, on the part of their mother, in like manner, as if they had been lawfully begotten of h mother." Stevenson v. Sullivant. opens an inter-communication of blood, through the mother, to an inde finite extent, lineally and collaterally. But we insist, that it only gives to the natural children the faculty of inheriting immediately from the mother, and of transmitting such inhertance to their posterity. The legislature has not said that natural children shall be considered as lawfully born of their mother, for all the purposes of inheritance pointed out by the act. It has given them two capacities of inheritance only; the capacity to inherit on the part of the mother; and the capacity of transmitting inheritances on the part of the mother. These capacities, it is true, they are to enjoy, in like manner, "as if they had been lawfully begotten of the mother." But these words, 66 as if, &c.," do not add to the number of their heritable capacities; they seem only to designate the extent to which they shall enjoy the two specific capacities which are expressly given them. Do these capacities authorize them to claim the inheritance from Richard ? What are they? 1st. That they shall be capable of inheriting on the part of their mother; 2d. That they shall be capable of transmitting inheritance on the part of their mother. The last capacity, it is not contended, [*241 has any application to the case at bar; this not being the case of an inheritance transmitted through the natural children, but one which they claim directly for themselves. If they are entitled, therefore, their title must arise under the first capacity, that of inheriting on the part of their mother. What is the meaning of this expression, on the part of their mother? The counsel on the other side contends, that it means from or through the mother; that it connects the bastard with the ancestral line of the mother, and through her, collaterally, with all who are of her blood. On the other hand, we insist, that the capacity does not go beyond an inheritance from the mother, and the transmission of that inheritance, lineally and collaterally, among their descendants; or, in other words, to make the mother the head of a new family. The expression "on the part of the mother," does not carry the mind beyond the mother, unless connected with words of more extensive significance, such as, ancestors on the part of the mother, or descendants on the part of the mother; and here it would be the supplemental words which would produce the effect, not the words, "on the part of the mother." But, it will perhaps be urged, that in the case of Barnitz v. Casey, 7 Cranch 476, the counsel upon both sides, and the court, seem to have understood this term in the sense contended for on the other side. That case arose on a statute of Maryland, in which the force of the term is expounded to mean, *from or through. In our case, the Virginia stat[*242 ute furnishes an opposite inference. The expressions, "on the part of the father," and "on the part of the mother," occur in the 5th section of the law of descents. It is the only instance in which they do occur, and there they are indisputably synonymous with "of" and "from" any brother or sister of such infant on the part of the father, and so vice versa. It is said, that this provision places the natural children on the footing of legitimate children, to all the purposes of inheritance. But we would ask, does it enable the mother to inherit from them? Does it enable the mother's ancestors or collateral relations so to inherit? The provision is, that the natural children may inherit from the mother; but where is the provision that the mother may inherit from them, or that her relations may inherit from them? It is not to be found; the legislature did not look upwards beyond |