Page:John P. Branch Historical Papers - Volume 2.djvu/308

Rh courts below, may bring error, as well as defendants against whom judgments have passed, the words, “recover,” and be “restored to.”apply to those cases respectively. I have already said that an actual change of property is not necessary to give application and effect to the word “restore.”

The court says that the object of the amendment was both to prohibit the commencement of future suits, and to “arrest the prosecution” of those which were pending at the time of the amendment: and that this object satisfies and gives the key to the word “prosecuted.” It never could have been the intention of the amendment to interfere with the suits already existing. That would destroy the lex temporis altogether and set aside the great principle that suits rightly brought ought to be determined. As the federal court was still continued in existence, these suits should have been finished by it. In fact, (as the court is fond of history) the then pending suits were not immediately “arrested by virtue of that amendment. That amendment was unanimously adopted by the legislature of Virginia, in October, 1794, and might, before, have become a part of the constitution by the adoption of other states, and yet the suit pending against Virginia in the supreme court, was pending on December 26th, 1796, as appears by a resolution before referred to. This suit therefore was not at once arrested by the supreme court, as most probably it would, had that been the sole purpose of this amendment I admit that at a future time it was decided by the supreme court, in the case of Hollingsworth against the State of Virginia, that this amendment embraces cases, depending at the time on the docket; but it was also decided that it extended to cases “prosecuted”