does not adopt this principle of separation as a part of its basis. (Fed. No. 81; 1 Bl. Ap. 126, Tuck. Ed.; 3 Niles' Reg. 2; 4 do. 400.) We are aware that in Connecticut, till lately, and still in New York, a part of their Legislature exercises some judicial authority. (4 Niles' Reg. 443.) This is probably a relic of the rude and monarchical government of the eastern world; in some of which no division of powers existed in theory, and very little in practice. Even in England, the executive and judicial departments were once united (1 Bl. 267; 2 Hutch. His. 107); and when our ancestors emigrated hither, they, from imitation, smallness of numbers, and attachment to popular forms, vested often in one department, not only distinct, but sometimes universal powers. (2 Wil. Wks. 50; 1 Minot His. 27; 1 Hutch. His. 30; 2 do. 250, 414.) The practice of their assemblies to perform judicial acts (3 Dal. 386; Calden & wife, v. Bull & a.) has contributed to produce an impression that our Legislatures can also perform them. But it should be remembered that those assemblies were restrained by no constitutions, and that the evils of this practice (Fed. No. 44), united with the increase of political science, have produced the very changes and prohibitions before mentioned. The exceptions in Connecticut and New York do not affect the argument; because those exceptions are not implied, but detailed in specific terms in their charters; and this power, also, as in the House of Lords in England, is in those States to be exercised in the form of judgments, and not of laws; and by one branch, and not by all of the Legislature. (4 Niles' Reg. 444.) “The entire Legislature can perform no judiciary act." (Fed. No. 47.) It is questionable whether at this day such an act, by all the branches of the British Parliament, though in theory omnipotent, could be enforced. (1 Bl. C. 44; 2 do. 344.) "There is a statute, made the fourth year of King Henry IV., ch. 22, whereby it is enacted that judgment given by the king's courts shall not be examined in the chancery, Parliament, nor elsewhere." (Doctor and Student, dialogue 1, ch. 8.) Be this, however, as it may, in that country, one great object of constitutions here (Fed. No. 81) was to limit the powers of all the departments of government (Bill of Rights, art. 1, 7, 8, 38); and our constitution contains many express provisions in relation to them, which are wholly irreconcilable with the exercise of judicial powers by the Legislature, as a branch of the judiciary. That clause which confers upon the "General Court" the authority "to make laws" provides, at the same time, that they must not be "repugnant or contrary to the constitution. One prominent reason for creating the judicial distinct from the legislative department was, that the former might determine when laws were thus repugnant," and so operate as a check upon the latter, and as a safeguard to the people against its mistakes or encroachments. But the judiciary would in every respect cease to be a check on the Legislature, if the Legislature could at pleasure revise or alter any of the judgments of the judiciary. The Legislature, too, would thus become the court of last resort, "the superior court," or "supreme judicial" tribunal of the State; and those expressions so often applied to this court in the constitution (Const. art. 7, 9, 22, 20) would become gross misnomers. If our legislators, too, possess such high judicial powers, much consistency cannot exist in the provision, that "upon important questions of law, and upon solemn occasions," they may be advised by the justices of this court, which, on the above principle, is inferior and subordinate. Nor is this all. "Every reason which recommends the tenure of good behavior for judicial officers militates against placing the judiciary power, in the last resort, in a body composed of men chosen for a limited period (Ham. Wks. 255); men, too, not selected for their knowledge of the laws, nor with a view to those other qualifications which fit men to be judges." Nor are our legislators commissioned and sworn in any manner as judicial officers are required to be. Nor can they, like judges, for mal-conduct, be removed by address or impeachment. Because the House themselves are the tribunal to make, and the Senate the tribunal to try, impeachments; and both united are the bodies authorized to present addresses for removals. (Const. 13.) Nor can it easily be conceived that the judiciary are independent of the Legislature to any extent, however small, if the Legislature itself compose a part of that judiciary. Certain reasons induce us to rest this opinion upon general principles; but, under this point, it may not be unimportant to notice one consideration of a particular nature. The constitution itself seems to declare what tribunals shall exercise jurisdiction over the subject-matter of the dispute between the present plaintiff and defendants. For it says, in express language, that till other provisions are made, the probate of wills "shall be exercised by the judges of probate," and "all appeals from the respective judges of probate shall be heard and tried by the Superior Court." (Const. 20.) No provisions have since been made which transferred any part of the above power to the Legislature. In deciding an abstract question like this, it cannot, we apprehend, be material, whether a review is provided in appeals from courts of probate, or whether, after judgment in such appeals, a new trial could be awarded by this court, on petition by the party aggrieved. Because, if all our statutes on reviews and new trials were repealed to-morrow, the Legislature would possess no more authority to exercise judicial powers than they now possess; as their authority was confined and limited by the people at the formation of the constitution, and must continue as it was then until the constitution itself is altered. A different construction would enable the Legislature, if the Court of Common Pleas was abolished, to issue writs and try causes till other courts for that purpose were organized; and if no sheriffs happened to be in office, to proceed also to serve the writs issued by themselves. 3. As our Legislature, then, is not a branch of the judiciary, it only remains to inquire, whether, without being made a branch of the judiciary, they are, either by special clauses in the constitution, or as a mere legislative body, authorized to pass the act under consideration. The people, being supreme, might, without intending to make the Legislature a branch of the judiciary, have invested them, by some special clause, with that judicial power which was exercised in this act. But no such clause has been found in the constitution; and without such a clause, it would be most unwarrantable to presume that the people intended to confer this judicial power on the Legislature, when all the reasons before mentioned, and the spirit of the people's language in the whole instrument, forbid such a presumption. If our General Court, then, were in any capacity authorized to pass this act, it must have been in that of mere legislators. The legislative power is surely one of the most honorable and useful in all governments. We should be among the last persons inclined to impair its rights. As it emanates more immediately from the people, it should also be ample, in order that the grievances of the people may be redressed ; and we entertain no doubt that in this State all its acts of a legislative character, not prohibited by our constitution, should be supported and construed favorably. (7) John. 492; Dash v. Vanklack.) But those acts must in substance be of a legislative character. Their form is immaterial. They must be laws, - must be confined to subsequent occurrences. For the very nature and effect of a new law is a rule for future cases. (7 John. 503; 2 Inst. 95.) They must, too, in general, be rules prescribed for civil conduct to the whole community, and not a "transient, sudden order from a superior to or concerning a particular person." (1 Bl. C. 44.) For every subject of this State is entitled to a certain remedy, by having recourse to the laws (Con. 14); but an act which operates on the rights or property of only a few individuals, without their consent, is a violation of the equality of privileges guaranteed to every subject. It is, also, an interference with existing interests, and prescribes a new rule for the regulation of them, after they have become vested. This is forbidden by first principles. "Vetant leges sacræ, vetant duodecem tabulæ leges privatis hominibus irrogare, id edin est privilegium." (Cicero de. Leg. 3:19.) Acts of the Legislature, too, which look back upon interests already settled, or events which have already happened, are retrospective; and our constitution has in direct terms prohibited them, because "highly injurious, oppressive and unjust." (Bill of Rights, 23d art.) But perhaps their invalidity results no more from this express prohibition, than from the circumstance that, in their nature and effect, they are not within the legitimate exercise of legislative power. For though, under the name of ex post facto laws, when "made for the punishment of offences" (Dall. 386; 9 Mar. R. 363; 1 Bl. C. 46), they have long been severely reprobated, because more common in times of commotion, and because they endanger the character and person, as well as the property; yet, laws for the decision of civil causes, made after the facts on which they operate ex jure post facto, are alike "retrospective," and rest on reasons alike fallacious. (7 John. 495; 1 Bay. 107; Bac. Stat. 6; 3 Ham. Wks. 254; 7 Ma. R. 385.) VOL. II. 29* We wish it to be distinctly understood, however, that acts of the Legislature are not within the above prohibitions, unless they operate on the interests of individuals or of private corporations. (Trus. Dart. Col. v. Woodward.) Nor are they within them when, in an implied or express manner, the parties affected have consented to their passage; as all public officers impliedly consent to alterations of the institutions in which they officiate, provided the public deem it expedient to introduce a change. So all citizens consent to the passage of acts which the constitution in express terms has enabled the Legislature to make, though those acts might otherwise be unjustifiable; because all either aided to form, or, by living under, are presumed to adopt, the constitution. (6 Bac. Stat.; 4 Inst. 1.) Thus the constitution has ratified acts respecting the persons or estates of absentees (Const. 22.), and has empowered "the representative body of the people to take a man's property for public uses." (Const. 3.) Nor can acts of the Legislature be opposed to those fundamental axioms of legislation before particularized, unless they impair rights which are vested; because most civil rights are derived from public laws; and if, before the rights become vested in particular individuals, the convenience of the State produces amendments or repeals of those laws, those individuals have no cause of complaint. The power that authorizes or proposes to give may always revoke before an interest is perfected in the donee. Thus the right to prosecute actions in a particular time or manner may, perhaps, be modified or taken away at any period before actions are commenced. (10 Mass. R. 439.) So, also, may be the right of femmes covert to the dower at any period before the death of their husbands; and so the right of the next akin to a relation's estate at any period before the relation's death. But it is questionable whether even these rights, though inchoate, and in mere expectancy, can be taken from one portion of the community, and be left unmolested with another portion. (12 Mass. R. 258.) Be that as it may, however, it is clearly unwarrantable thus to take from any citizen a vested right; a right "to do certain actions or possess certain things," which he has already begun to exercise, or to the exercise of which no obstacle exists in the present laws of the land. (3 Dall. 294.) But previous to the passage of the act granting a new trial to this plaintiff, the defendants had become authorized, by the laws of the land, to possess all the estate of which Ward died seized. Every obstacle to the exercise of their rights had been removed or annulled; and whether those rights became vested by Ward's death, or by the final judgment in November, 1814, is immaterial; because both of these events had happened before the passage of this act. (7 John. 494; Burr. 2460.) The defendants being thus situated, the Legislature interfered; not to enact what is in its nature and effect a law, but to pass a decree; not to prescribe a rule for future cases, but to regulate a case which had already occurred; not to make a private statute by the consent of all concerned, but, at the request of one party, to reverse and alter existing judgments; not to promulgate an ordinance for a whole class of rights in community, but to make the action of a particular individual an exception to all standing laws on the subject in controversy. (Mass. R. 396.) The expense and inconvenience of another trial were also imposed upon the defendants, and all their claims to the property in dispute, which had become indefeasible by the laws then in being, were launched again upon the sea of litigation, to be lost or saved as accident and opinion might afterwards happen to injure or befriend them. The misfortune of having vested rights thus disturbed is not small, when we consider that, on this principle, no judgment whatever in a court of law is final. "If," says Germaine, "judgment given in the king's courts should be examined in the chancery, before the king's counsel, or any other place, the plaintiffs or demandants should seldom come to the effect of their suit, and the law should never have end." (Doct. and Stu. Dial. 1, ch. 8.) The misfortune, too, is not small, when we recollect, with Mr. Madison (Fed. No. 44), that usually "one legislative interference is but the link of a long chain of repetitions, till the properties of parties are ruined in the contest." (14 John. 73.) "The sober people of America," says he, "have seen, with regret and with indignation, that sudden changes and legislative interference in cases affecting personal rights become jobs in the hands of enterprising and influential speculators, and snares to the more industrious and less informed part of the community." "It is not," says Spencer, J. (7 John. 490), "necessary to inquire whether a Legislature can, by the plenitude of its power, annul an existing judgment. This power I should undoubtedly deny." "A Legislature (3 Ham. Wks. 254; Jefferson's Notes, 195), without exceeding its province, cannot reverse a determination once made in a particular case." The theory of the British nor the State constitutions authorizes the revival of a judicial sentence by a legislative act. (Fed. No. 81.) But it has sometimes been argued, that in case of extreme hardships, Legislatures are always authorized to interfere. The defendants deny this hardship; and though the record shows that, before the application to the Legislature, two trials had been enjoyed, - which is a greater number than the common law generally allows, - and that a motion for another one had also been fully heard and considered, yet all the hardship may be presumed which the plaintiff alleges, and still that could not confer upon one department of government a power which the constitution had withheld. In a case of great State necessity, the Legislature might be warranted in adopting strong measures. But even in that case, it |