turbed; but in its application as a shield of protection, the term "vested rights" is not used in any narrow or technical sense, as importing a power of legal control merely, but rather as implying a vested interest which it is equitable the government should recognize, and of which the individual cannot be deprived without injustice.

And before proceeding further, it may be well to consider, in the light of the reported cases, what is a vested right in the constitutional sense, that we may the better judge how far the general laws of the State may be changed, and how far special provisions may be made without coming under condemnation. Every man holds all he possesses, and looks forward to all he hopes for, through the aid and protection of the laws; but as changes of circumstances and of public opinion, as well as other reasons of public policy, are all the time calling for changes in the laws, and these changes must more or less affect the value and stability of private possessions, and strengthen or destroy well-founded hopes; and as the power to make very many of them must be conceded, it is apparent that many rights, privileges, and exemptions which usually pertain to ownership under a particular state of the law, and many reasonable expectations, cannot be regarded as vested rights in any legal sense. In many cases the courts, in the exercise of their ordinary jurisdiction, cause the property vested in one person to be transferred to another, either through a statutory power, or by the force of their judgments or decrees, or by compulsory conveyances. If in these cases the court has jurisdiction, they proceed in accordance with the law of the land, and the right of one man is divested by way of enforcing a higher and better right in another. Of these cases we do not propose to speak; as constitutional questions cannot well arise in regard to them, unless they be attended by circumstances of irregularity which are supposed to take them out of the operation of the general rule. All vested rights are held subject to the laws for the enforcement of public duties and private contracts, and for the punishment of wrongs; and if they become divested through the operation of these laws, it is only by way of enforcing the obligations of justice and good order. What we desire to arrive at now, is the meaning of the term "vested rights," when employed by way of indicating the interests of which one cannot be deprived by the mere force of legislative enactment, or by any other than the

recognized modes of transferring title against the consent of the owner, to which we have alluded.

Interests in Expectancy.

And it would seem that a right cannot be considered a vested right, unless it is something more than a mere expectation, and has already become a title, legal or equitable, to the present or future enjoyment of property, or the present or future enforcement of a demand, or a legal exemption from a demand made by another. As Mr. Justice Woodbury expresses it, acts of the legislature cannot be regarded as opposed to fundamental axioms of legislation, "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 procures 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." And Chancellor Kent, speaking of retrospective statutes, says, that such a statute, "affecting and changing vested rights, is very generally considered in this country as founded on unconstitutional principles, and consequently inoperative and void. But this doctrine is not understood to apply to remedial statutes, which may be of a retrospective nature, provided they do not impair contracts, or disturb absolute vested rights, and only go to confirm rights already existing, and in furtherance of the remedy by curing defects and adding to the means of enforcing existing obligations. Such statutes have been held valid when clearly just and reasonable, and conducive to the general welfare, even though they might operate in a degree upon vested rights."2

1

To particularize: a mere expectation of property in the future is not a vested right. On this ground it is that the rules of descent may be changed, and the changes made applicable to all estates not already passed to the heir by the death of the owner. No one is heir to the living; and the heir presumptive has no other reason to rely upon succeeding to the property than the promise held out by the statute of descents. But this promise is no

more than a legislative declaration of its present view of public policy in regard to the order of succession,- a view which may at any time change, and the promise be withdrawn, and a new course of descent declared. The expectation is not property; it cannot be sold or mortgaged; and it is not in any way taken notice of by the law until the moment of the ancestor's death, when the law of descents comes in, and for reasons of general policy transfers his estate to certain persons to the exclusion of others. It is not until that moment that there is a vested right in the person who becomes heir, to be protected by the constitution. A future interest in property cannot be said to be vested in any person, so long as the owner of the interest in possession has full power, by virtue of his ownership, to cut off the expectant right by grant or devise.1

The nature of estates is therefore, to a certain extent, subject to legislative control. In this country estates tail are very generally changed to estates in fee simple by statutory provisions, the validity of which is not disputed. Such statutes operate to increase and render more valuable the interest which the tenant in tail possessed, and are not therefore open to objection by him. But no other person in these cases has any vested right, either in possession or reversion; and the expectation of the heir presumptive must be subject to the same control as in other cases.5

The cases of rights in property to result from the marriage relation may be referred to the same principle. At the common law the husband, immediately on the marriage, succeeded to certain rights in the real and personal estate which the wife then possessed. These rights were at once vested, and could not be divested by any subsequent change in the law. But other inter

1 In re Lawrence, 1 Red. Sur. Rep. 310.

2 Smith on Stat. & Const. Construction, 412.

* De Mill v. Lockwood, 3 Blatch. 56.

On the same ground it has been held in Massachusetts that statutes changing existing estates in joint tenancy into estates in common were unobjectionable. They did not impair vested rights, but rendered the tenure more beneficial. Holbrook v. Finney, 4 Mass. 567; Miller v. Miller, 16 Mass. 59; Anable v. Patch, 3 Pick. 363; Burghardt v. Turner, 12 Pick. 534.

1 Wash. Real Pr. 81 to 84 and notes. The exception to this rule, if any, must be in case of tenant in tail after possibility of issue extinct; where the estate of the tenant has ceased to be an inheritance, and a reversionary right has become vested.

• Westervelt v. Gregg, 12 N. Y. 208.

ests were merely in expectancy. He could have a right as tenant by the curtesy initiate, in the wife's estates of inheritance, the moment a child was born of the marriage, who might by possibility become heir to them. The right would be property, subject to conveyance and to be taken for debts; and must therefore be regarded as a vested right not subject to legislative interference. But while it remains in mere expectancy,—that is, before it becomes initiate, the legislature has full power to modify or abolish it. And the same rule will apply to dower, with this distinction, that the inchoate right is not regarded as property, or anything but a mere expectancy, at any time before it is consummated by the husband's death.2 In neither of these cases does the marriage alone give a vested right. It gives only a capacity to acquire a right. The same thing may be said with regard to the husband's expectant interest in the after-acquired personalty of the wife; that it is subject to any changes in the law made before his right becomes vested by the acquisition.3

Change of Remedies.

Again, the right to a particular remedy is not a vested right./ This is the general rule; and the exceptions are of those peculiar cases where the remedy is a part of the right itself, and which we have considered in another place. As a general rule every State has complete control over the remedies which it shall afford to parties in its courts. It may abolish one class of courts and create another. It may give a new and additional remedy for a right already in existence. And it may abolish old remedies and

1 Hathorn v. Lyon, 2 Mich. 93; Tong v. Marvin, 15 Mich. 60.

Barbour v. Barbour, 46 Me. 9; Lucas v. Sawyer, 17 Iowa, 517; Moore v. Mayor, &c. of N. Y., 4 Sandf. 456 & 8 N. Y. 110; Pratt v. Tefft, 14 Mich. 191; Reeve, Dom. Rel. 103, note; Noel v. Ewing, 9 Ind. 57.

3 Westervelt v. Gregg, 12 N. Y. 208; Norris v. Beyea, 13 N. Y. 273; Kelly v. McCarthy, 3 Bradf. 7. And see Plumb v. Sawyer, 21 Conn. 351; Clark v. McCreary, 12 S. & M. 347; Jackson v. Lyon, 9 Cow. 664.

Lord v. Chadbourne, 42 Me. 429; Rosier v. Hale, 10 Iowa, 470; Holloway v. Sherman, 12 Iowa, 282; McCormick v. Rusch, 15 Iowa, 127; Rockwell v. Hubbell's Admrs., 2 Doug. Mich. 197; Cusie v. Douglas, 3 Kansas, 123; Smith v. Bryan, 34 Ill. 377.

Hope v. Jackson, 2 Yerg. 125; Foster v. Essex Bank, 16 Mass. 245; Paschall v. Whitsett, 11 Ala. 472; Commonwealth v. Commissioners, &c., 6 Pick. 508; Whipple v. Farrar, 3 Mich. 436; U. S. v. Samperyac, 1 Hemp. 118; Sutherland

substitute new. If a statute providing a remedy is repealed while proceedings are pending, the proceedings will thereby be determined; and any rule or regulation in regard to the remedy, which does not, under pretence of regulating it, impair the right itself, cannot be regarded as beyond the proper province of legislation.

But a vested right of action is property in the same sense in which tangible things are property, and is equally protected against arbitrary interference. Where it springs from contract or from the principles of the common law, it is not competent for the legislature to take it away.2 Nor can a party by his misconduct forfeit such a right unless steps are taken to have the forfeiture declared in due judicial proceedings. Forfeitures of rights or property cannot be adjudged by legislative act, and confiscations without a judicial hearing and judgment after due notice would be void as not due process of law. Even Congress has no authority to protect the executive officers of the government for their acts during the existence of a civil war, by depriving parties who were illegally arrested by such officers of all redress in the courts.3

v. De Leon, 1 Texas; 250; Anonymous, 2 Stew. 228. See Lewis v. McElvain, 16 Ohio, 347; Trustees, &c., v. McCaughey, 2 Ohio, N. S. 152; Hepburn v. Curts, 7 Watts, 300; Schenley v. Commonwealth, 36 Penn. St. 29; Bacon v. Callender, 6 Mass. 303; Brackett v. Norcross, 1 Greenl. 92; Ralston v. Lothain, 18 Ind. 303.

1 Bank of Hamilton v. Dudley, 2 Pet. 492; Ludlow v. Jackson, 3 Ohio, 553; Yeaton v. U. S., 5 Cranch, 281; Schooner Rachel v. United States, 6 Cranch, 329. That where the law has been changed pending the proceedings, judgment must be pronounced according to the law as it then is, see these cases. Also Commonwealth v. Duane, 1 Binney, 601; United States v. Passmore, 4 Dall. 372; Commonwealth v. Marshall, 11 Pick. 350; Commonwealth v. Kimball, 21 Pick. 373; Hartung v. People, 21 N. Y. 99; State v. Daley, 29 Conn. 272.

2 Dash v. Vankleek, 7 Johns. 477; Streubel v. Milwaukee & M. R. R. Co., 12 Wis. 67; Clark v. Clark, 10 N. H. 386; Westervelt v. Gregg, 12 N. Y. 211; Thornton v. Turner, 11 Minn. 339; Ward v. Brainerd, 1 Aik. 121; Keith v. Ware, 2 Vt. 174; Lyman v. Mower, Ibid. 517; Kendall v. Dodge, 3 Vt. 360; State v. Auditor, &c., 33 Mo. 287; Griffin v. Wilcox, 21 Ind. 370; Norris v. Doniphan, 4 Met. (Ky.) 385. But that which is given as a penalty may be taken away at any time before recovery of judgment. Oriental Bank v. Freeze, 6 Shep. 109.

3 In Griffin v. Wilcox, 21 Ind. 370, the act of Congress of March 3, 1863, which assumed to indemnify parties who, during the existence of the Rebellion, had made arrests without legal process, was held unconstitutional and void. In Norris v. Doniphan, 4 Met. (Ky.) 385, the act of Congress of July 17, 1862, “to suppress insurrection, to punish treason and rebellion, to seize and confiscate the