which were commenced, prosecuted, and concluded while it was an existing law."* Upon this principle, the repeal of a statute puts an end to all prosecutions under the statute repealed, and to all proceedings growing out of it pending at the time of the repeal. There can be no legal conviction, unless the act is contrary to law at the time it is committed; nor can there be a judgment, unless the law is in force at the time of the indictment and of the judgment. Hence, a repealing law is sometimes made to operate prospectively, and a saving clause is inserted to prevent the operation of the repeal, and continuing the repealed law in force as to all pending proceedings and prosecutions. So in the Supreme Court of the United States, it has been held that the repeal of a statute giving a penalty, puts an end to all actions pending for penalties under the act, at the time of the passage of the repealing statute. So in the Circuit Court of the United States, where a man was indicted for perjury under the bankrupt law, which had been repealed before indictment, Washington, J., said, "Every offence for which a man is indicted must be laid against some law, and it must be shown to come within it, and the law must be subsisting. If the Legislature has ceased to consider the act in the light of an offence, the purposes of punishment are no longer to be answered." So the repeal of a law imposing a penalty, though after conviction, arrests the judgment. And the same See also, in England, as to effect of repeal of bankrupt laws. Surtees v. Ellison, 9 B. & C. 750; Maggs v. Hunt, 4 Bing. 212; and Kay v. Gordon, 6 Bing. 576. + Miller's Case, 1 W. Bl. 451; Rex v. Justices of London, 3 Burr. 1456; Commonwealth v. Cooley, 10 Pick. 37; Commonwealth v. Mar shall, 11 Pick. 350; see also, Butler v. Palmer, 1 Hill, 324. Yeaton v. United States, 5 Cranch, 281; Anon. 1 Wash. C. C. R. 84. of fees was such as to repeal by implication prior statutes on the subject, but it provided in substance that such statutes should remain in force as to the receipt of the fees, but that they should be paid into the State Treasury, instead of being retained by the officers, this was held to be an attempt to amend an act, without setting it out as required by the Constitution, and so void. Dodd v. State, 18 Ind. 56. No Legislature can lay down for a subsequent one a binding rule as to how statutes shall be amended. Morgan v. Smith, 4 Minn. 104. In construing an amendatory act, the old law, the mischief arising under it, and the remedy which the new law may be supposed to provide, should be considered. Maus v. Logansport, &c. R. R. 27 Ill. 77; People v. Greer, 43 Ill. 213. * rule applies to all proceedings, whether civil or criminal, going on by virtue of a statute at the time of its repeal. So if a statute confers jurisdiction in civil cases, and though suits may be instituted and be pending at the time of the repeal, the juris diction is gone, and with it the whole proceeding falls to the ground. So the repeal of an act authorizing a course of proceeding by a public officer, invalidates the proceedings, if unfinished, at whatever stage they had arrived. Thus, in Pennsylvania, where an act was passed authorizing the opening of a street in Pittsburgh, and providing for the assessment of damages; it was held, that the repeal of the act before the street was opened, rendered void all proceedings taken, and that the parties in whose favor damages had been assessed could not recover the compensation reported in their favor. So in New York, in May, 1837, a law was passed authorizing mortgage debtors to redeem their property sold under foreclosure decrees, within one year from the date of the sale. In April, 1838, an act was passed repealing the act of 1837, to take effect in November, 1838. In a case where the sale took place in December, 1837, before the repealing law had passed, it was held that no redemption could take place after the time fixed for the act to go into effect; that the right of redemption was a mere inchoate right, and necessarily destroyed by the abrogation of the statute which conferred it. In connection with this subject we may observe, that an act declared illegal by statute is not made good by a subsequent repeal of the statute, if it was originally illegal. And so, the repeal of a prohibitory act does not give validity to acts which were invalid under the operation of the prohibitory act repealed. Thus in New York, the Revised Statutes declared that no person, unauthorized by law, who should practice physic or surgery for any fee or reward, should be capable of bringing suit for such fees. In 1844 this was repealed. An action was brought by an unlicensed practitioner, in 1845, to recover com *Stoever v. Immell, 1 Watts, 258; Butler v. Palmer, 1 Hill, 324. Williams v. County Commissioners, 35 Maine, p. 345. Hampton v. Commonwealth, 7 Harris (Penn.), 329. Butler v. Palmer, 1 Hill, 324. pensation for services rendered in 1840, prior to the repealing act. It was held that the repeal of the previous prohibitory laws had no effect on cases which arose before the passage of that act.* It will be noticed, that the operation of the general rule is to give repealing statutes a very retroactive effect. In regard to criminal matters, this is perhaps unobjectionable; but in regard to civil rights, the case is often very different. Trouble and expense may have been incurred; suits may have been instituted; but the effect of a retrospective construction of repealing statutes is entirely to derange the plans and defeat the arrangements of parties who have proceeded on the faith of the antecedent legislation. Efforts have been made to resist these results, and certain exceptions have been made to this retroact ive application. The first is that where a right in the nature of a contract has vested under the original statute, then the repeal does not disturb it. And, in this country, this principle is carried out and firmly established by the clause in the Constitution of the United States, that no State can pass any law impairing the obligation of contracts; to which we shall have occasion more particularly to refer, when we come to consider the subject of the restrictions imposed upon State Legislatures by the federal charter. An unfortunate distinction has been drawn by the highest of the federal tribunals, between the ob ligation of a contract and its remedy. It has been repeatedly regretted; but the State courts have adopted it, and it is now too late, perhaps, to hope for its abandonment. What relates to the remedy is understood to be at the mercy of legislation, but the obligation of contracts is covered by the aegis of the Bailey v. Mogg, 4 Denio, 60. + Fletcher v. Peck, 6 Cranch, 87; Gillmore v. Shooter's Ex'or, 2 Mod. 310; Couch t. v. Jeffries, 4 Burr. 2460-2; Churchill v. rease, 2 Moore & Payne, 415; 5 Bing. 177, S. C.; Terrington v. Hargreaves, 3 Moore & Payne, 137, 143; 5 Bing. 489; S. C., Butler V. Palmer, 1 Hill, 324. "Were the notion res nova, we might feel great difficulty in distinguishing between the obligation of a contract, and a remedy given by the law to enforce it. It is difficult, under the notion that obligation and remedy are essential to each other, to see how the lat ter can be impaired without producing the same consequence to the former." Cowen, J., in Butler v. Palmer, 1 Hill, 324. Mr. Chancellor Kent has said, Ch. J. Marshall, in Sturges v. Crowninshield, 4 Wheaton, 200, 207, spoke on this subject in a general and latitudinary manner, which was rather hazardous. It seems to me, that to lessen or take away from the extent and efficiency of the remedy to enforce the contract legally exist ing when the contract was made, impairs its value and obligation." Com. i, p. 455, note. See, too, the opinion of Mr. Justice Washington, in Mason v. Haile, 12 Wheaton, 370. federal charter. We shall, as I have above said, have occasion to consider this more fully, when we come to speak of the Constitution of the United States. There is another class of cases which virtually form a second exception to the general rule, declaring, as we have seen, the operation of repealing statutes. It has been held in many instances that enactments of the Legislature, creating new exceptions or defences, or modifying previous remedies, shall be so construed as not to affect rights of action which have attached and become vested under the original law, and existing at the time of the repealing statute." "We are of opinion," said Lord Denman, C. J., in a case of this kind, "that the law, as it existed when the action was commenced, must decide the rights of the parties to the suit, unless the Legislature express a clear intention to vary the relation of litigant parties to each other." + So in regard to the limitation of actions, the same learned judge said, in regard to a law changing the period, that the prior law must control. "A different construction, even if the words permitted it, would cause the greatest hardship; for a person who, as the law stood before the passing of this act, was in ample time to bring his ejectment, and recover property that undoubtedly was his, would, by the operation of the statute, be suddenly deprived of the means of asserting his right, there being no clause for the postponement of the operation of the statute for such a period as would enable persons who would be otherwise affected by it to assert their rights." So in New York, where distress for rent originally existed, as in England, it was made by statute a penal offence to remove goods from the demised premises for the purpose of avoiding the payment of rent; a forfeiture being given to the landlord of double the value of the goods removed. In May, 1846, an act was passed abolishing, generally, the remedy of distress, though not in terms repealing the above statute. A suit brought for a violation of the statute, alleged to have been committed in Bedford v. Shilling, 4 Serg. & Rawle, 401; Duffield v. Smith, 3 Id. 590-9; Butler v. Palmer, 1 Hill, 324. Ilitchcock v. Way, 6 Ad. & Ell. 943; Paddon v. Bartlett, 3 Ad. & Ell. 884. Dwarris, vol. ii, p. 542; Sed vide contra, | 2 R. S. 503, § 17, part iii, ch. viii, title 9, Doe dem. Evans v. Richards, Q. B. R.; art. 1. 1844, came on to be tried in June, 1846; and it was suggested that the abolition of the remedy of distress necessarily carried with it the provision as to the removal of goods, and on the general doctrine which we have above stated, that the penalty was gone. But it was said that there were no express words of repeal, that the moment that the offence was committed the penalty became a debt or duty vested in the plaintiff,* and that the action would still lie.+ So it is intimated in a recent case in New York, that the Legislature cannot take away a right of appeal which has already attached. It has been attempted to reconcile this class of cases with the others, which we have heretofore in this connection considered, on the ground that they contain no express words of repeal; | but it being settled that repeals may be as clearly made by implication as by positive words, that position becomes untenable. They are, in fact, far more defensible on the general doctrine that no statute should ever be permitted to have a retroactive effect, a rule which we shall have occasion to consider in the next chapter. Indeed, no attention can be paid to our statutory law without observing the mischiefs resulting from ill-considered legislation, violent and sweeping innovation, or the hasty repeal of previous enactments. The inconveniences consequent upon retroactive statutes are often of the most serious character, and cannot be too frequently pointed out, nor too often insisted on. The Company of Cutlers in Yorkshire v. Ruslin, Skinner, 363; Grosset v. Ogilvie, 5 Brown, P. C. 527; College of Physicians v. Harrison, 9 Barn. & Cres. 524. + Palmer v. Conly, 4 Denio, 374; s. c. on appeal, 2 Coms. 182. Grover v. Coon, 1 Coms. 536. We may, however, take some consolation in the consideration that these are no modern evils, nor confined to our country. Those who deplore the haste with which our statutes are drawn, the inaccuracies which they often present, and the injustice they too frequently work, may take comfort in the words of Blackstone: "To say the truth, almost all the niceties, intricacies, and delays, which have sometimes disgraced the English as well as other courts of justice, owe their original not to the common law itself, but to innovations that have been made in it by acts RE! ARY ע of Parliament, overladen (as Sir Edward Coke expresses it) with provisoes and additions; and many times, ou a sudden, penned or corrected by men of none or very little judgment in law;" and he goes on to quote further from Coke, as to the evils resulting from the ignorance and incompetency of the lawmakers. Blackstone, Com., Introductory Lecture. Both Coke and Blackstone, however, were devotees to the common law. But the complaint has been repeated, in England, down to our time. "The same cause," says a writer in the Law Review for August, 1850, "which has produced bad books upon English law (the discontinuance of regular academical institutions in our terms of court) has produced bad statutes.” "The real evil," said the Lord Chief Justice, in debate in the House of Lords, July 9, 1850, "under the present system, was, that nine-tenths of the time of the judges was taken up in endeavor 46 |