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20 Minn. L. Rev. 775 (1935-1936)
The Rule against Retroactive Legislation: A Basic Principle of Jurisprudence

handle is hein.journals/mnlr20 and id is 785 raw text is: RULE AGAINST RETROACTIVE LEGISLATION THE RULE AGAINST RETROACTIVE LEGISLATION: A BASIC PRINCIPLE OF JURISPRUDENCE By ELMER E. SmEAD* T HE bias against retroactive laws is an ancient one. That the Greeks were influenced by it is shown by the case of Timo- krates and the Athenian Ambassadors.- There the Ambassadors had withheld money owed to the city-state, and were condemned to repay twice the amount. Timokrates succeeded in securing the enactment of a law to relieve the Ambassadors of this penalty, but, as a consequence of the efforts of Demosthenes, the law was held to be invalid because it was retroactive.2 From this case Sir Paul Vinogradoff has drawn the conclusion that the Greeks recognized the principle expressing opposition to retroactive laws which is a very important element in American law today. It is clear, furthermore, that the Roman Law included the same principle, as shown in several prohibitions laid down by the Corpus Juris Civilis. The Digest gives as a rule that the law-giver could not change his course of action to the injury of another per- son. Nemo potest mutare consilium suum in alterius iniuriam.S The principle, however, was more dearly stated by the Code, which declared that laws and customs should be given an opera- tion on future transactions and that they cannot be recalled to past facts unless it is stated expressly that they apply either to past time or to pending transactions. Leges et consuetutiones futuris certum est dare formnam ne- gotiis, non ad facta praeterita revocari, nisi nominatim etiam de praeterito tempore adhuc pendentibus negotiis cautum six.' *Instructor in Political Science, Dartmouth College, Hanover, N. H. 12 Vinogradoff, Outlines of Historical Jurisprudence 139, 140. It is interesting to note here that the author uses the term ex post facto legisla- tion in the general sense rather than in the limited meaning of criminal retroactive laws given to it in the United States constitution. See footnote 51. His statement that the principle is dearly stated in the constitution of the United States of America that no law should be retroactive, that no person ought to be affected by a law which wvas not in force when his case was decided is inaccurate, as will be shown. 21t is worthy of note that the statute here was to the advantage of the defendants, whereas the principle as applied in Anglo-American law was united with the concept of justice-which restricted the application of the principle to those cases where the retroactive application of the Act worked disadvantageously to a party to a case. 3Corpus Juris Civilis, Digest, 50, 17, 75. The nemo here refers to the lawgiver. 4Corpus Juris Civilis, Code, 1, 14, 7.

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