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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