that legislative bodies are sometimes unaccountably rash and reckless in the exercise of their powers, and, with respect to the great body of the people, it must be obvious that little sense of responsibility can be felt by the individuals composing so vast a number. Now, the appointment of a judge imposes upon the appointing power a heavy responsibility, and if this responsibility could be concentrated upon the executive head of the state, that officer would, I think, very rarely provoke the censure of the legal profession, and the indignation of the whole community, by the appointment of a bad or incompetent judge.

But what sense of responsibility can be brought home to an entire people for the election of a bad judge? Of course, to all rules there will be exceptions. A governor may be a mere demagogue or worse, and the confirming senate his accomplices in evil doing. No doubt many poor judges have by this mode of appointment been imposed upon the people, and it is doubtless equally true that many excellent judges have been chosen by popular election, but we must judge of institutions by general, not special, results. Despotism has sometimes governed wisely and well, and even usurpation has proved a temporary benefit to mankind; but who will say that despotism and usurpation are not evil things because special and temporary benefits have sometimes resulted from them?

I do not myself believe that the law for the popular election of judges can be changed. Popular privileges, once granted, are not likely to be surrendered, especially where the people are taught to believe themselves an unfailing source of all political wisdom. The only practicable remedy. consists, in my judgment, in greatly enlarging the terms of judicial office, and in making the incumbent ineligible to a second election. To this, I think, the people would consent, and it would place the judge in a position of quasi independence. The judge being elected for a long term, the people would receive the advantages resulting from his experience in the administration of justice, and, being ineligible to a second election, he would himself have no motive to

discharge his functions with a view to securing popular favor and a future election.

Finally, let me say, that although the election of judges for short terms by the people is not, in my judgment, a wise institution, and although we have certainly taken a wrong step in that direction, yet the system does not seem to work as badly as one would be led to suppose, reasoning from cause to effect. There is, I think, far less ground of complaint than might be expected, since private justice is, in the main, administered in the states which have adopted the elective system with at least tolerable ability and impartiality. The reason is obvious. The offence of judicial corruption or partiality is so heinous a crime in the eyes of all men, and especially of the legal profession, that few judges would have the hardihood to face the community and the bar under a sense of judicial delinquency. There is very little intemperance among women, because the public sentiment will not tolerate drunkeness in a woman. A female inebriate is a spectacle shocking to behold. The same stern and inexorable sentiment of condemnation against judicial delinquencies stares every judge in the face, and deters him in general, even if so inclined, from the commission of any serious offences against the rights of litigants, and the usages, traditions, and proprieties of his station.

J. M. LOVE.

III. THE EFFECT OF A CHANGE IN THE LAW UPON RIGHTS OF ACTION AND DEFENCES.

A very interesting and important question frequently is, what effect has been produced upon a right of action, or upon a previously existing defence to an action, by a change in the law effected by statute after the right has accrued, or the cause of action has arisen, to which the defence was applicable. The question is encountered in a great variety of cases, and is sufficiently important to be considered under the several heads where the cases seem to range themselves. This is done imperfectly below.

1. Cases where Laws are Repealed which Imposed Penalties, or some Loss or Deprivation in the Nature of a Penalty.-In cases of this nature there seems to be little room for hesitation regarding the proper rule. Where the right to recover the penalty, or to insist on enforcing that which is to cause loss to another, comes wholly from the statute, it must necessarily cease to exist the moment the statute is repealed. The result is inevitable, since the repeal of the statute takes away the foundation of the right. As the penalty, before it is recovered, is not property, and the right to it is not in the nature of a contract, the power to take it away is not inhibited by any provision of the constitution, and the legislative power of repeal is unquestionable. Nor is it of any importance in this connection whether the right to take advantage of the statute was given to the public, or to a common informer, or to some individual specially concerned; it being a mere statutory right not yet enforced, it cannot have force or vitality beyond that of the statute itself. This is the rule where a criminal penalty is provided,' but it applies to civil cases with equal force.

1 Miller's Case, 1 Bl. Rep. 451; Anonymous, 1 Wash. C. C. 84; The Irresistible, 7 Wheat. 551; United States v. Tynen, 11 Wall. 88; Commonwealth v. Duane, I Binn. 601.

The point arose in a case of no little interest and importance, which was brought under the statutes of the United States for the reclamation of fugitive slaves, and was passed upon by the federal Supreme Court. The statute of 1793, on that subject, imposed a penalty of five hundred dollars upon any person who should knowingly or wilfully obstruct or hinder any owner, his agent or attorney, in arresting a fugitive from labor, or should rescue one after his arrest, or harbor or conceal one, knowing that he was a fugitive from labor. The penalty was recoverable by the claimant for his own use, and was doubtless intended to some extent as a compensation to him for losses and expenditures which he would be likely to suffer or incur. The statute of 1850 made new provisions, which, in the opinion of the court, repealed this. A penalty having accrued under the first statute before the second was passed, suit was brought for its recovery. Mr. Justice Catron, delivering the unanimous opinion of the court, declared that the repeal of the statute which gave the penalty took away all right of recovery. The penalty, being given by the legislature, might be remitted by the legislature. There was, and could be, no vested right in it. In rendering this conclusion the court only followed previous decisions in the same court, all to the same effect.3 The decisions to the like effect in the state courts are very numerous, and it may almost be said that the doctrine has been held without dissent, there being scarcely an instance

2 Norris v. Crocker, 13 How. 429.

3 Yeaton v. United States, 5 Cranch, 281; Schooner Rachel v. United States, 6 Cranch, 329; State of Maryland v. Baltimore & Ohio R. R. Co., 3 How. 534. This last case was also one of considerable interest, the penalty, which was remitted, being one of $1,000,000, imposed for the benefit of one of the counties of Maryland, in order to compel the railroad company to locate its line so as to accommodate and benefit that county. See, also, Confiscation Cases, 7 Wall. 454. In those cases it was decided that the attorney-general might remit penalties under the revenue laws even after judgment, against the remonstrance of the informer, who would lose his interest thereby.

4 See Wilson v. Hardesty, I Md. Ch. Dec. 66; Potter v. Sturdevant, 4 Me. 154; Oriental Bank v. Freese, 18 Me. 107; Lewis v. Foster, 1 N. H. 61; O'Kelly v. Athens Manuf. Co., 36 Geo. 51; Engle v. Shurtz, I Mich. 150; Cole v. Madison County, Breese, 115; Parmelee v. Lawrence, 48 Ill. 331;

in which the doctrine has been denied, that no individual can have in a statutory penalty any vested right which the legislature would be precluded from taking away, or which would remain after the statute under which it was claimed had been repealed.

In some of the cases which have been referred to, that which the statute permitted to be recovered, or which was forfeited under it, was not designated a penalty, but, as in the fugitive slave case, assumed the form of, or was intended as, compensation to a party for a wrong done or injury suffered by him. One of the cases in Maine was of this description. The statute entitled the plaintiff, in case of the breach of a prison bond given by his debtor, to recover in a suit upon it the amount of his debt, costs, and expenses, with twenty-five per centum interest. Obviously this would. exceed the damages suffered by him, and might be very greatly in excess. A later statute repealed this, and substituted a recovery of the actual damages the creditor had suffered, to be estimated by a jury. This recovery, it was held, was all that the creditor could demand, though the breach had occurred previously. All that the first statute gave in excess of the actual damages was in the nature of a penalty, whether so denominated or not, and the control over it did not depend on what it was called.5

Other cases involved the validity of statutes which mitigated the penalties against usury, and of these the same view was taken. If a party promises to pay usury, it is only by the favor of the law that any special remedy or protection is given him, and he can have no special claim to certainly no vested right in-a favor which, at the same time, is a punishment to his creditor.

Where the penalty is taken away by statute, it seems to be immaterial that a suit has been previously commenced for the Chicago etc. R. R. Co. v. Adler, 56 Ill. 345; People v. Livingston, 6 Wend. 526; Thompson v. Bassett, 5 Ind. 535.

6

5 Oriental Bank v. Freeze, 18 Me. 107, citing Potter v. Sturdevant, 4 Me. 154. Wilson v. Hardesty, 1 Md. Ch. Dec. 66; Parmelee v. Lawrence, 48 Ill. 331; Engle v. Shurtz, 1 Mich. 150; Curtis v. Leavitt, 15 N. Y. 9; Welch v. Wadsworth, 30 Conn. 149; Wood v. Kennedy, 19 Ind. 68.