Continuing Modifying at the time he committed the offence, have known of the existence of the Act of Parliament. It may, however, be observed that it was suggested by the Court in Burns v. Nowell (1880), 5 Q. B. D. 454, that "before a continuous act or proceeding, not orginally unlawful, can be treated as unlawful by reason of the passing of an Act of Parliament by which it is in terms made so, a reasonable time must be allowed for its discontinuance, and though ignorance of the law may of itself be no excuse for any one who may act in contravention of it, such ignorance may nevertheless be taken into account when it becomes necessary to consider the circumstances under which the Act or proceeding was continued and when and how it was discontinued with a view to determine whether a reasonable time had elapsed without its being discontinued." It is desirable that some interval should be given for people to have a physical possibility of learning the terms of a new law, but this is not always possible, nor could any uniform delay between passing and commencement be safely prescribed. If an Act is passed for the purpose of continuing an expiring Act, it is enacted by 48 Geo. 3, c. 106, that if the expiring "Act shall have expired before the Bill for continuing the same shall have received the royal assent, such continuing Act shall be deemed and taken to have effect from the date of the expiration of the Act intended to be continued as fully and effectually as if such continuing Act had actually passed before the expiration of such Act, except it be otherwise specially provided in such continuing Act: Provided nevertheless, that nothing herein contained shall extend to affect any person with any punishment, penalty, or forfeiture by reason of anything done or omitted to be done by such person contrary to the provisions of the Act so continued between the expiration of the same and the date at which the Act continuing the same may receive the royal assent." If an Act passed after 1850 repeals wholly or in part any former enactment, and substitutes provisions in place of the repealed enactment, the latter remains in force until the substituted provisions come into operation.(g) the word 2. "A statute is to be deemed to be retrospective which Meaning of takes away or impairs any vested right acquired under "retrospectexisting laws, or creates a new obligation, or imposes a ive" as applied to new duty, or attaches a new disability in respect to trans- statute. actions or considerations already past."(h) But a statute is not properly called retrospective merely" because a part of the requisites for its operation is drawn from a time antecedent to its passing." "A statute," said Sir James Wilde in Watton v. Watton (1866), L. R. 1 P. & M. 229, "cannot be said to have a retrospective operation because it applies a new mode of procedure to suits which commenced before its passing." This was also pointed out in R. v. Whitechapel (1848), 12 Q. B. 127, by Lord Denman, C.J. In that case the parish of Whitechapel had taken proceedings for the removal of a pauper widow immediately after her husband's death. But before she had actually been removed, the 9 & 10 Vict. c. 66, was passed, which enacted by s. 2 that no widow should be removable until one year after her husband's death. It was then argued on behalf of the parish that it would be construing the Act retrospectively if it was made to apply to the case of this woman, who had become a widow before the Act was passed. It was held, however, that the Act did apply to her case, and that she could not be removed until the expiration of a year from her husband's death. "It was argued," said Lord Denman, "that the operation of the statute was confined to persons who had become widows after the Act passed, and that the presumption against a retrospective operation being intended supported this construction, but we have before shown that the statute is in its direct operation prospective only, and only relates to future removals, and that it is not properly called (g) Interpretation Act, 1889, ss. 11 (2), 41, repealing and re-enacting Brougham's Act (13 & 14 Vict. c. 21), s. 6. (h) Sedgwick on Statutory Law (2nd ed.), p. 160. between re facto" statutes. a retrospective statute, because a part of the requisites for its action is drawn from time antecedent to its passing." Difference A retrospective statute is different from an ex post facto trospective" statute.(i)) "Every ex post facto law," said Chase, J., in andex post Calder v. Bull (1798), 3 Dallas (U. S.) at p. 391, “must necessarily be retrospective, but every retrospective law is not an ex post facto law. Every law that takes away or impairs rights vested agreeably to existing laws is retrospective. Thus, statutes of oblivion or pardon are certainly retrospective, and literally both concerning and after the facts committed. But I do not consider any law ex post facto that mollifies the rigour of the criminal law, but only those that create or aggravate the crime or increase the punishment or change the rules of evidence for the purpose of conviction. . . . There is a great and apparent difference between making an unlawful act lawful and the making an innocent action criminal and punishing it as a crime."(k) Retrospectivity not presumed. The Act of 1793 in no way prevents Parliament from making an Act retrospective if the intention to do so is apparent. "No one denies," said Dr. Lushington in The Ironsides (1862), 31 L. J. P. M. & A. 131, "the competency of the Legislature to pass retrospective statutes if they think fit,(l) and many times they have done so." Philosophical writers (m) have, it is true, denied that any Legislature ought to have such a power, and it is indisputable that to exercise it under ordinary circumstances must work great injustice. Consequently, the general rule laid down by the Courts is, as Lord O'Hagan said in (i) Blackstone (Comm. vol. i. p. 46) describes ex post facto laws as those by which "after an action indifferent in itself is committed, the Legislature then for the first time declares it to have been a crime, and inflicts a punishment upon the person who has committed it." Acts of indemnity are, however, also ex post facto laws so far as they take away civil rights of action, and are statutory pardons as to criminal liability. (k)_Cited with approval by Willes, J., in Phillips v. Eyre (1871), L. R. 6 Q. B. at p. 26. (1) The French code contains a positive provision that laws are not to have any retrospective operation. "La loi ne dispose que pour l'avenir, elle n'a point d'effet rétroactif": Code Civil, s. 2. (m) See Sedgwick (2nd ed.), p. 160. Gairdner v. Lucas (1878), L. R. 3 App. Cas. 601, that unless there is some declared intention of the Legislature -clear and unequivocal-or unless there are some circumstances rendering it inevitable that we should take the other view, we are to presume that an Act is prospective, and not retrospective." Bowen, LJ., in Reid v. Reid (1886), 31 Ch. D. 408, thus dealt with it: "The particular rule of construction which has been referred to, but which is valuable only when the words of an Act of Parliament are not plain, is embodied in the well-known trite maxim, Omnis nova constitutio futuris formam imponere debet non præteritis (n)—that is, that, except in special cases, the new law ought to be construed so as to interfere as little as possible with vested rights. It seems to me that even in construing an Act which is to a certain extent retrospective, and in construing a section which is to a certain extent retrospective, we ought, nevertheless, to bear in mind that maxim as applicable whenever we reach the line at which the words of the section cease to be plain. That is a necessary and logical corollary of the general proposition, that you ought not to give a larger retrospective power to a section, even in an Act which is to some extent intended to be retrospective, than you can plainly see the Legislature meant." Similarly, in R. v. Ipswich (1877), 2 Q. B. D. 269, Settlement. Cockburn, C.J., said: "It is a general rule that where a statute is passed altering the law, unless the language is expressly to the contrary, it is to be taken as intended to apply to a state of facts coming into existence after the Act." And, consequently, it was held that a person who had resided in a parish for three years, but whose residence therein had ended before the passing of 39 & 40 Vict. c. 61, did not acquire a settlement therein under s. 34, which enacts that "where any person shall have resided for the term of three years in any parish in (n) 2 Inst. 292, adopted by Lord Cranworth in Urquhart v. Urquhart (1853), 1 Macq. H. L. (Sc.) 662. Marriage. Charitable uses. such manner as would, in accordance with the statutes in that behalf, render him irremovable, he shall be deemed to be settled therein." One of the first reported cases on this subject is Gilmore v. Shooter (1679), 2 Mod. 310. In that case an action was brought on a marriage contract made by parol without writing before June 24,1677, the day on which the Statute of Frauds came into operation, and the question was, whether it could be enforced after the passing of that statute, which enacted (among other things) that after June 24, 1677, "no action shall be brought on any agreement made in consideration of marriage, unless the agreement. . . . shall be in writing. The Court held that, however general the language of the statute, it could not have been intended to affect past promises which were valid when the Act came into operation, and that it must therefore be construed as | referring to future contracts only. According to all the reports of the case, the Court seems to have decided as they did solely on the ground that it would have been a flagrant violation of natural justice to make the enactment applicable to existing contracts. And in conformity with this decision it is stated in some of the reports of the case that the judges had said that an unattested will made before the passing of that Act would be good even though the testator should not die until after it came into operation.(o) In Ashburnham v. Bradshaw (1740), 2 Atk. 36, a similar question arose as to the effect of the Mortmain Act (9 Geo. 2, c. 36), which enacted that after June 24, 1736, no lands should be given or settled to charitable uses except by deed indented and enrolled in manner therein mentioned. Soon after the passing of the Act it was contended that it affected wills made before the Act where the testator died after it had come into operation, but on reference to the judges they all held that it did not, and Lord Hardwicke acted on their opinion.(p) So, with (0) This abstract is taken from the judgment of Rolfe, B., in Moon v. Durden (1848), 2 Ex. 38. (p) But see the effect of statutes upon wills further discussed below, p. 384. |