Norfolk gazette and publick ledger — Norfolk [Va.], 1810-04-06 00:00:00, page 2

»a*4 * •clock the
*’ Wekhi. LkUe-W«.r
•*, «i dbipered to b« ro fife, which together
I iifr Ittr nwt were entirely consumed; It
the utmost exertion* that the adjoining
te occupied by Mr. Mason, (hat caught on the
0ft tho rtora of Mr. John M'Phail waibro.
and his iron chest, containing some value
* and about one hundred dollars in money
* <y§lk SUPREME COURT.
fuTCnu, J Marshall, Ch. Jcstic* dt/i
V > tend the opinion of the V'jurt,
: PtCk ) at Jtdloui:
The plsiPngs being now amended, this cause
> comes on again to be beard ou sundry demurrers
and oo a^ special verdict.
The suit eras instituted on several covenants con
tained in a deed made by John Peek, the defendant
- Userrour, conveying to Fletcher, the plain*
tfiE *» errour, certain lands which were part of a
. 'larg* purchase made by James Gunn ami others, in
the yaar 1795, from the state of Georgi.i, the con
trati^W which »« made in the form of a bill pns
aadhy the legislature of that state.
Mfr., The tirst count in tbe declaration sets forth a
breach tn the gerund covenant rontained it, the deed.
The covenant is “that the legislature of Georgia,
t the time of passing of tbs art of sale aforesaid,
d good right to sell and dispose of the same in
manner pointed out by the said act." The bleach
assigned is that Untlegialittre hod no pnwir to sell.
S,. Tne plpa in bar Sets lorth the Constitution of the
i*f Georgia, and avers that the lands sold by
lelendant to the plaintiff wcie within that state.
SO aete forth tbe grunting art mid aveis the
... Jiower of the legislature and dispose of the premises
^•pointed oat by the art.
w -I® iris pie*a tne piauuitt below demurred, and
tb« defendant joined in demnrrii.
That jh* legislature of Georgia, unless rsetruin
40',i>y ita'flwo constitution, possesses the power of
dfsposrpg 6f the unappropriated lands within its
0*1) limits, in such manner as its own judgment
»hall dictate,, it a proposition not to he rnntrovert
•d. The only question, then, presented bv this
demurrer, for the consideration of the court, is tins
the then constitution of the state of Georgia
, prohibit the legislature to dispose of the lands,
which werd the subject of this contrait, in the mau
ner stipulated bj the contract f
f £ The question, whether a law be void for its re
,T°$a,,ntyta th* constitution, is at all times a ques
tion of much delicacy, which ought seldom, if ever,
Jo ha /kcided in Iba affirmative in a doubtful case.
■The court, when impelled by duly to render such a
judgment, Would be unworthy of its station, could
it be unmindful of the solemu obligations which
that station imposes. But it is not on slight im
plication and vagua conjecture thut the legislature
latn be pronounced I o'have transcended its powers,
aud it» acta to be considered as void. The opposi
tion between the constitution and the law should be
tich that lh« judge feels a clear and strong convic
•'• •of their incompatibility with each other.
Hbis'rasc lha court can perceive no such op
r, itiou. In the coostitutimi of Georgia, adopted
in the year 1789, the court can perceive no restne
tionatsthe legislative power, which inhibits the
passage of the met of 1795. The court cannot say
that in passing that act, the legislature had trau
,£$£*■#* i|Spowers and violated the constitution.
In overruling the demurrer, therefore, to the first
plea, tile circuit court rommitted no errnur.
The 3d*invrnam is, that a!) the title which the
late of Georgia ever h»fl in the premises had been
egatfy conveyed to John Peek, the giantor.
HHMjljf r<>unl a*5'8ns> *n substance, as a breach
| this covenant, that the original grantees from
ate of Gorgia promised and assuied divers
tndmbers or the ligislature, then sitting in general
•••wohly, that, if the said members would assent
toandyotfr f..r the passing of the act, and if, the
,4
sqm bill should pass, such members should have a
•bora <>f and be interested in all the lands purr bus
•d from the said state by virtue of such a law. And
that divers of tne said members, to whom the said
promises were made, were unduly iuftu.nced thrre
linger turn lunoeoce, aid vole lor (be pus
'f Jh* said bill; by reason whereof tbe said
iwtility, #tc. and so the title of the state
"did not piss to the said Peck, itc.
The flea to this count, after protesting that tbe
•rodWaad it alleges were nut made, avers that, until
aftei'the purchase made from the original grantees
James Greeuleaf, under whom tbe said Peck
•» neither the said James Greenleaf nor tbe said
r any of tbe mesne vendors between the
f and Perk had any notice or kr.ow
t *•} W promises or assurances were
tKMaid original grantees,or either of them,
'wnsemhers of |.L« legislature of the state
th
the plaint,ff demurred generally, and
joinmKin «•—*■_ *
^^ideniurier
tion ITjould find its way into the g*.
ion lno ii
uur infant republics end contaminate
rtt oflegtslation, or that impure ino
rontribtite te the passage of alaw or the
of It legislaii**cnotract, are rirruinstuo
t* deplored. How for a court
would,' In any case, be competent, on pro
instituted by the state itself, to uesie a
thus farmed, and to annul rights acquired,
■in N— tm ii?*6^ persons having no no
apts# the improper mesm by which it was ob*
jained, i« a^ question which the court w.ould ap
lands*Ircootspcction. It may wellb*
lar the validity of a Jaw depends upon
hf its framers, autl how far tbe pnrtiru
gpn m*tT,hers af the su
**%. to ihft formation
«r,‘ are examinable in f>
mdlllf^ppeikl aponih««ji.ru-Mn
gftttOtt
is* jtriity of the l«et*l«tai#be eon
If -lN rrv jhtity of the kieitUtar^t* corriipu,.,,
may well Le doubted whether ft b* wuhip thepro-.
vihce of the judiciary to contivol their conduct ;
•nd, if lest than s majority art from impure mo*
tt»ea, the principle by which judicial -interference
would be regulated, is not clearly discerned.
Whatever difficulties this subject might' present,
when viewed uti'ier espivlsof which it <nay he sus
ceptible, this court can perceive none in the parti
cular pleading now under consideration.
This is nnla bill brought by the stale of Georgia
to annul the contract, nor dues it appear to the
court, by this count, that the slat* of Georgia is
dissatisfied with the sale that has been made. The
cafe, as mane out ;ti the pleadings, is simply this
—One individual who holds lends in the state of
Georgia, under a deed covenanting that the title of
Georgia was in the grantor, brings an action of co
venant upon this deed, and assigns,as a breach, that
tome of the members of the legislature were indue
e l to vole in favour of the law, which constituted
the rontract, by being promised an interest
in it,
and that therefore the an is a mere nullity.
This solemn question cannot he brought thus
collateially ami incidentally before the court. It
would he indecent, in the extreme, upon a private
contract between two individuals, to ent-r into an
inquiry respecting the ronuption of the sovereign
power of a state. If the title be plainly deduced
from a legislaiive act which the legislature might
constitutionally pass, if the act he clothed with all
the requisite forms of a law, a court sitting as a
court of law cannot sustain a suit brought l y one
individual against another founded on the allegation
that thfiactisa nudity, in consequence of the im
pure motives that Influenced certain members uf the
legislature which passed the law.
I he circuit court, therefore, did right in overrul
ling this demurrer.
The 4th covenant in the deed is, that the title to
the premise* hag been, in no way. constitutionally
nr legally impaired by virtue of any subsequent act
of any subsequent legislature of the sluteot Geoi
gia.
I he third count recites the undue means prartis
ed on return members of the bnnslature, as stated
m 111* second count, nod then alleges th it, m eonsc
quinre of these practices, aud of othfi cau>rs, a
subsequent legislature passed an *^ct annulling aud
rescinding the law under which the conveyance to
th« original grantees was made, declaring that con
veyance void, »nd a>s rting the title of the state to
the lands it contained. The rount proceeds to re
cite, at large, this rescinding act, and concludes
with averring that, by reason of tins act, the title ol
the said I’erlv in toe premises was constitutionally
and legally impaired and i cnci»rcri null and void.
After protesting, as before, that mu such premis
es were made as staled in this count the defendant
again pleads that Iiimstll and the first purchaser
under the original grantees and all intermediate hol
ders of the property were purchasers without notice.
In this plea there is a demurrer and joinder.
The impoi lame and the difficulty ol the questi
om, presented by these pleadings, are deeply felt by
the court.
'1 be lands in controversy vested absolutely iu
James Gunu, and others, the original grantees, by
the comcyan>• of the governor, made in pursu
ance of an act of assembly to which the legisla
ture was fully competent. Being thus in full pos
session of the legal estate, they, for a valuable con- I
sideration, conveyed portions of the land to those
who were willing to purchase. If the original trans- |
action was infected with fraud, these purchasers did
nor participate in it, aud had no notice of it. They
were innocent. Yet the legislature of Georgia bas
invoiced them in the Cate of the first parties to the
transaction, and, if the act be valid, has annihilated 1
their rights also.
The legislature of Georgia was a party to this
transaction; nnd for u party to pronounce its own
deed invalid, whatever cause may be assigned for its
invalidity, must be considered us a mere act of
power which must find its vindication in a train of
reasoning not often heard in courts of justice.
But the real party, it is said, are the people, and
when tbeir agents are untaithlul, the acts of those
agents erase to be obligatory.
It is, however, to he tecollected that the people
can act only by these agents, aud that, while with
in the powers coulerred on them, their acts must
be considered as the acts of the people. If the a
gems oe conupi, Diners may be ruusen, and, it
their rontrar Is be examinable, the common senti
ment, as wall us common usage of mankind, points
out a mode by which this examination may be
made, and their validity determined.
If the legislators nf Georgia was not hound to
submit its pretensions to those tribunals which are
established for the security of property, and to de
ride on human rights, if it might claim to itself the
power of judging in Us own case, yet there are cer
tain gr^at principles of justice, whose authority are
universally aeki owjedged, that ought not to be en
tirely disregarded.
If tho legislature he its own judge in its own case,
it would seem equitable that us derision should be
regulated by those rules which have regulated the
derision of a judicial uibunuL The question was,
in its nature, a question of tine, and the tribunal
which derided it was either acting in the character
of a court of justice, and performing a duty usually
assigned to a court, or it was exercising a mere
act of power in which it was conlrouled only by its
own wilt.
Ifu suit be brought to srt aside a cofiveyaace ob
tained by fraud, and the fraud be clearly proved, the
conveyance will be s. t Hside, as between the par
ties ; but the rights of third persons, who are pur
chasers without notice, fora valuable consideration,
cennot be disregarded. Titles, which according to
every legal test, are perfect, are arquired with that
eontid nee which is inspired by the opinion that
the-pure baser is safe. If there be any concealed de
fect, arising from the conduct Of those who had held
the property Jong before he acquired if, of which he
had h« Retire, that concealed defect cannot he set
apoga^iit him. . lie has paid hit money for a title
gon3 at law, he js. innocent, whatever may be the
guilt «f other*, *txf etjuity will hot subject him W
lliiiil^igw tint' gnHt/iAlt ^
Wr
ITt •t-rrwt*-mnm
- W »«< •<■»« r«t«tyuev made to James
•<>««» obtained W’Wipixtptr
; practice* with the tegidbtt vr*. whatever ifcjjt lit hive
be«dt its dec isinn n» >|^p|gd the origins#! granfer s,
*a*ld have been'bound, by$|s own ruin, and by the
, clearest principles of *mMy, u> legpe unmolested
ibose who were purcldprs without notice, for a
valuable consideration.
If the legislature felt itself absolved fron? those
rales of property which are common to all the cui
seus of the (jnitrd Stales, and from those principles
of equity which are acknowledged iu all oar courts,
its act is to be supported by its power alonr, and
tbe same power may divest any other individual «l
his lands, if it shall he the will of tbe legislature so
to exert it.
It is not intended to speak with disrespect of the
legislature of Georgia or its arts. Far from it. The
question is a general question, and is treated as one.
For although socb powerlul objections to a legisla
tive grant, as are alleuged against this, may not a
gain exist, yet the principle, on which alonethis re
scinding art is to,be supported, may he applied to
• very i ase to which it shall oe the will of every legis
lature to apply ii. The principle is this ; that a
legislature may, by Us own act, divest the vested es
tate of any man whatever, for reasons which shall by
i'.sell, be deemed suthi lent.
In this case ibe legislature may have h.;.l ample
proof that the original giant was ootained by prac
lices which can never be too much reprobated, and
which woulu have justified its abrogation so far as
respected those to whom crime was imputable, but
the grant, when :S:ucd, conveyed an estate in (Ve
8 mple to the grantee, clothed with all the solemni
ties which law <vn bestow. This estate wasiruns
terutle ; and those who purchased parts of it were
not stained by t .at guilt which lolerted the original
transaction. Their case is not distinguishable from
tbe ordinary aseof purchasers of a legal estate
without kuo.v ledge of any secret fraud which might
h .ve led tu the emanation of the original grant. Ac
c irding to the well known course of equity, their
rights could not be ejected l»y such fraud. Their
situation was the same, their title was tbe same
with that of every other member, of the community
who bolds land uy regular conveyances from the o
ligin.'l patentee.
is iu« pn»fr (ii me legislature competent to the
annihilation of such title, and to a resumption of the
property thus held ?
The principle asserted is, that one legislature is
compel'.ul to repeal any act which a former legisla
tors w,.s competent to pass ; and that one legisla
ture cannot abridge the powers of a succeeding le
gislature.
The correctness of this principle, so far as res
pects general legislation, can never he controverted.
Out ii an act be done under a lave, a succeeding le
gislature cannot undo it. The past cannot he re
called by the most absolute power. Conveyances
have been made, those conveyances have vested le
gal estates, and, it those estates may be seized by
the sovereign authority, still, that they original!)
vested is a lar t, and cannot cease to be a fact.
When, then, a law is, in its nature, a contract,
when absolute rights have vested under that con
tract, a repeal of the law cannot divest those
rights; and the art of annulling them, if legiti
mate, is rendered so by a power applicable to the
case of every individual in the community.
It may well be doubted whether the nature of so
ciety and of government does not prescribe some li
mits to the legislative power ; and, if any be pre
scribed, where are they to he tound, if the properly
ol an individual, (airly end honestly acquired, may
be seized without compensation ?
1 o tbe legislature all legislative power is grant
ed ; but the question, whither the act of trans
ferring tbe property of an individual to tbe publick,
he in the nature of legislative powers, is well wor
thy of serious reii ct on.
It is the peculiar province of the legislature to
prescribe general rules for the government of socie
ty; the application of those rules to individuals in i
society would seern to be ihe duty ol other depart
ments. How far the power of giving the law may
involve every other power, in cases where the con
stitution is silent, never has been, and perhaps ne
ver can he, definitely staled.
The validity of this rescinding act, then might
well he doubted, were Genigia a single sovertign
power. But Georgia cannot be viewed us a single
unconnected sovereign power, on whose legislature
uo other restrictions are imposed than may be found
in its own constitution. Sue is a part of a large
empire, she is a member of the American union ;
niiu mai UUMIU HUS U COllSU UJllon, Ifie
-, sti|>rrfljiicy j
of which all acknowledge, and which imposes li- |
mits to the legislatures of the several states, which
none claim a right to pass. The constitution o(
the United States declares that no state shall pais
any bill of attainder, ex post facto law, or law im
pairing the obligation of coutrarts.
Does the case now under consideration come
within this prohibitory section of the constitution ?
In considering this very interesting question, we
immediately ask ourselves what is acouliact? Is a
grant a contract?
A contract is a compact between two or more
parties, and is either executory or executed. An
executory contract is one in which a party binds
himselt, to do Ot not to do a particular thing; such
was the law under which the conveyance was made
by the goverpour. A contract executed is one in
which the object of contract is pcrfoimed; and
this, says Rlarkstone, differs in untiling from a
grant. A contract executed, as well as oue which
is executory, contains obligations binding on the
parties. A grant, in its own nature, amounts to
an extinguishment of the light of the grantor, and
implies a contract not to re-ossert that right. A
party is therefore always estopped by bis own grant.
Since, then, in fact, a grant is a contract exe
cuted, the obligation of which still continues, and
since the constitution uses the general term con
tract, without distinguishing between th»se which
are executory and those which are executed, it must
be construed to comprehend the latter as well as
the‘former. A law annulling conveyances lietween
individual*,, and declaring that th» grantors should
stand seized of their former estates, notwithstand
ing those giants, would be*s repugnant to the cow
stltution, as a law discharging the vendors of; pro
petty fiom the obligation of exenu mg their coo
iract* bf conveyance*, ifcwauld be strange it a
Rfontraf t to convey was sectfgi b* the constitution,
wlnU an abiulate fltthiisad -•
aapiatect
nfi*P5®"
ttSftii
<m <\{ tbei
Sftahibitfl ___tirwi_
on of tontrai Is between
eluding from that tohifel
Itself? ■ .
tWwords themselves enhiatl^jkTtWi^fstincti.
on. They are general, aird^ra applicable to con
tracts of every description. IF contacts’ made with
the 6tate are to be exempted from their operation,
the exception must arise from the character of Thu
contracting party, not front the words which at*
! employed.
Whatever respect might have teen felt for thu
slate sovereignties, it is uot to be disguised that thu
iranters of the constitution vie feed, with some ap
prehension, the violent arts which might grow out
of the feeling! of the moment, and that the penpU.
of the Unite ! States, in adopting that instrument/
have manifested a determination to shield them
selves and tbeir properly from the effects of those
sudden and strong passions to which men are expos
ed. 1 he restrictions on the legislative power of tha
states are obviously founded in this sentiment; and
the constitution of the United States ®i»tains what
may he deemed a bill of rights for the people oi
each slate.
No state shall pass any bill of attainder, cx post
facto law, or law impairing the obligation of <0u*
tracts.
A bill of attainder may affect the life of an indivi
dual, or may confiscate his property, or i&ky dw
both. 1
In this form the power of the legislature over the
lives and fortunes of individuals is expiessly res
trained. What motive then for implying in word*
. hub import a general prohibition to impair the.
obligation of contracts, an exception in favour of
the right to impair the obligation of those contracts
loin which the state may enter ?
The state legislatures can pass no ex post facto
law. An ex post facto law is one which renders an
art punishable in a manner in which it was not pu
nishable when it was eominitted. Such a law may
ln’.lkt penalties on the person, or may inflict pecu
niary penalties which swell the puhlick treasury.
Tire legislature is then prohibited from pusSina a
IJW °y wnl«" » man s estut e or any part of it shall
be seized for a crime which was cot declared} by
some previous law, to render him liable to that pu
nishment. \\ hy, then, should violence be doue to
the natural meaning of woids for the purpose o£
leaving to the >sjslatiire the power of seiaing, for
publick use, the estate ofan individual in the form
of a law annulling the title by which he holds that
estate ? 1 he court can perceive no sufficient grounds
lor inasnig this distinction. This rescinding bet
would have the eflectof an ex post facto law. It for*
lelts the estate ol cletcher ior a crime not conunit
t»d hy himself, but by those from whom he pur
chased. '1 his cannot he effected in the form of aa
ex post facto law or hill of attainder; why, then, is
it allownnle in the form of u iaw annulling the ori
ginal grant ?
Hie argument in favour of presuming an intei»ti
ou to except a case not excepted by the word* off*
the constitution, is susceptible of some illustratiok
from a principle originally ingrafted in that instru
ment, though r.o longer a part of it. The consti
tution, as passed, gave tiie conns of the United
States jurisdiction in suits brought against indivi
dual slates. A state, them, which violated its Own
contract was suable in the courts of the U. Slate#
lor that violation. Would it have been a defence ta
such u'suit to say that a ‘tate had passed a law ab
s"lv'Og itself from the contract ? It is scarcely to b#
conceived that such a defence could he set tip. And
yet, if a state is neither restrained by thie general
priiiiipira ot our political institutions, noi bv tL#
words ot the constitution Irotn iinpairirg the ohli
gation of its own contracts, snch a dele nee would
tie a valid one. I'his feature is no longer found hi
t ie constitution ; t ut it aids in the construction of
those clauses with which it was originally associ
ated.
It is, then, the unanimous opinion of the court
that, in this case, the estate having passed into tb#
hands of a purchaser fora valuable consideration,
without notice, the state of Georgia was restrained,
either by general principles whirh are common to
our tree institutions, of hy the particular prcvkiohs
of the constitution of the United States, from pas
sing a law whereby (be estate of the plaintiff in the
premises so purchased could be ronstitutinuaJljniiid
legally impaired and rendered null and void.
In overruling the demurrer to the dd plea, there
fore, there is no errour.
i nc nrsi covenant in the deed is that the state of
Georgia, at the lime of the act of the legislature
thereof, entitled as aforesaid, was legally seized ns
fee of the soil thereof subject only to the ex tin*
guishinrnt of part of the Indian title thereon.
'1 he 4th count assigns as a breach of this cova>
nant, that the right to the soil was in the U, Staten
and not in Georgia.
To this count the defendant pleads that the state
of Georgia was seized, and tenders Hn issue on tba
fact in which the plaintiff joins. On ibis issue a
special verdict is found.
The jury find the grant of Carolina by Charles
2d to the earl of Clarendon and others comprehend^
ing the whole country trom DO- deg. 30. into. N.
l.at. to 29 deg. N. Lat. and from the Allah tie tb
the South sea.
They find that the northern part of thjs terrltft
ry was afterwards erected into a separate colony*
and that the most norther* port of the.35 deg; of
N. Lat. was the boundary line between North antffc
South Carolina.
That seven of the right proprietors of theCaiw*
linas surrendered to George 2d in the year 1729,
who appointed n governour * f South Carolina.
That, in 1732, George the 2d granted to the joriH
Viscount Pncival and other seven eights of the ter*
ritory between the Savannah and the Alntamah*,
and extending west to the South sea, and that the
remaining eighth part, which, was' still th^Koper*
ly of the heir of lord Carteret, one of (lu-Svinet.
grantees of Carolina, was afterwards ttfg
I “»•«• this territory was coesntuietf\4‘
! Called Georgia. - v', "b
' That the governour of fecuth
to exercise jurisdiction snmh < / .
That, in 175®, the grantees, rendered to Aba
"own. _ , l -sV
.ThaL in 1,734. U guven^.n; «.,« *r»r- ••olW'fby
the, wow, twtU a cernmissma Whi*
dariesof the colony. *