Prevost v. Greneaux.
condemned; that the judge could only inquire if the sentence was correct or erroneous when delivered; and that if it was then correct, it could not be rendered otherwise by anything subsequent to its rendition. It was held by the court, in the opinion delivered by Chief Justice Marshall, that if, subsequent to the judgment and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied; that, where a treaty is the law of the land, and, as such, binds the rights of parties litigating in court, to condemn a vessel, the restoration of which was directed by it, would be a direct infraction of that law, and of consequence improper; that if the law was constitutional, and no doubt of it been expressed in this case, no court could contest its obligation. The effect upon civil rights acquired under a statute, of the repeal of the statute, was most fully considered in the case of Butler v. Palmer, (1 Hill’s Rep., 324,) in an elaborate opinion of Judge Cowen. In speaking of the effect of a repeal upon inchoate rights, he says: “I understand the rule of the writers on the civil law perfectly to agree with that acted on by our courts in all their decisions, ancient and modern. Those writers speak of rights which have arisen under the statute not being affected by the repeal, but the context shows at once what kind of rights they mean. The amount of the whole comes to this: that a repealing clanse is such an enactment as necessarily divests all inchoate rights which had arisen under the statute it destroys. These rights are but incidents to the statute, and fall with it unless saved by the express words of the repealing clause.” He reviews the case of Miller, (1 W. Blackstone’s Rep., 451,) and gives a much fuller statement of it from some other reporter. See, also, Smith’s Commentaries on Construction, pp. 888, 889, for the same case, and the English decisions in affirmance of it. The result of these decisions is, that not only in penal and jurisdictional matters, but in civil matters, where rights that are inchoate and set up under a repealed statute, they are divested as fully as if the statute had never existed.
But can it with any propriety be said in any case that the State acquires a vested civil right to a tax? To impose, levy, and collect a tax is an exercise of the sovereign power, as much as the levying and collecting a fine for a misdemeanor. The repeal of the statute imposing one or the other at once stops all action under it. A sovereign never pleads a vested civil right to a tax; he simply takes it by virtue of his inherent power. A statute is simply an exertion of that power; its repeal, the withdrawal of the application of the power. The
