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GEORGIA JOURNAL.
VoL. I.
MILLEDGEVILLE, TUESDAY, APRIL 17, 1810.
No. 2*5
PUBLISHED BY SEATON GRANTLAND,
(PRINTER TO THE STATE,) ON JEF
FERSON STREET, OPPOSITE THE
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regulated the decision of a judicial tri-.so far as respects general legislation
bunal. T he question was, in its na-Jcan never be controverted. But, if an
ture, a question ot title, and the tri- act be done under a law, a Succeeding
SUPREME'COURT.
Fletcher1 Marshall Ch. J. deliver
vs. v ed the opinion of the Court,
• Feck. J as follows :
(Concluded from our last.)
The 4th, covenant in the deed is,
that the title to the premises has been,
in no way, constitutionally or legally
impaired by virtue of any subsequent
act of any subsequent legislature of
the state of Georgia.
The third count recites the undue
means practised on certain members
of the legislature, as stated in the se
cond count, and then alleges that, in
consequence of these practices, and of
other causes, a subsequent legislature
passed an act annulling and rescind
ing the law under which the convey
ance to the original grantees was
mndc,declaringtliat conveyance void,
and asserting the title of the state to
the lands it contained. The count
proceeds to recite, at large, this re
scinding act, and concludes with a
verring that, by reason of this act, the
title of the said Peck in the premi
ses was constitutionally and legal
ly impaired and rendered null and
void.
After protesting, as before, that no
such promises were made as stated
in this count the defendant again
pleads that himself and the first pur
chaser under the original grantees
and all intermediate holders of the
property were purchasers without no
tlte.
‘ To his plea there is a demurrer and
joinder.
The importance and the difficulty
of the questions, presented by these
pleadings, are deeply felt by the
court.
bunal which decided it was either act
ing in the character of a court of jus
tice, and performing a duty nsually
assigned to a court, or it was exerting
a mere act of power in which it was
controlled only by its own will.
If a suit be brought to set aside a
conveyance obtained by fraud, and
the fraud be clearly proved, the con
veyance will be set aside, as between
legislature cannot undo it. The past
cannot be recalled by the mdst absolute
power. Conveyances have beeh
made, those conveyances have vested
legal estates, and, if those estates
may be seized by the sovereign au
thority, still, that they originally ves
ted is a fact, and cannot cease to be
a fact.
When, then, a law is in its nature,
the constitution, while an
.onveyance remained unprotected.
II under a fair construction of the
constitution grants are comprehended
under the term contracts, is a grant
from the state excluded from the ope
ration of the provision f Is the clause
to be considered as inhibiting the
state from impairing the obligation of
the parties ; but the rights of third a contract, when absolute rights have
persons, who are purchasers without vested under that contract, a repeal of
notice, for a valuable consideration,'the law cannot divest those 'rights ;
cannot be disregarded. Titles, which, and the act of annulling them, if legi-
according to every legal test, are per
fect, are acquired with that confidence
which is inspired by the opinion that
the purshascr is safe. If there be any
concealed defect, arising from the
conduct of those who had held the
property long before he acquired it,
of which he had no notice, that con
cealed defect cannot be set up against
him. He has paid his money for a
title good at law, he is innocent,what
ever may be the guilt of others, and
equity will not subject him to the pe
nalties attached to that guilt. All ti
tles would be insecure, and the inter
course between man and man would
principle be overturned
A court of chancery, therefore, had
a hill been brought to set aside the
conveyance made to James Gunn
and others, as being obtained by im
proper practices with the legislature,
whatever might have been its decisi
on as respected the original grantees,
would have been bound, by its own
rules, and by the clearest principles
of equity, to leave unmolested those
who were purchasers w ithout notice,
for a valuable consideration.
If the legislature felt itself absol
ved from those rules of property
which are common to all the citizens
of the United States, and from those
principles of equity which are ac
knowledged in all our courts, its act
is to be supported by its power alone,
and the same power may divest any
other individual of his J lands, if it
shall be the will of the legislature so
timate, is rendered so by a power ap
plicable to the case of every individu
al in the community.
It may well be doubted whether
the nature of society and of govern
ment does not prescribe some limits
to the legislative power ; and, if any
be prescribed, where are they to be
found, if the property of an indivi
dual, fairly and honestly acquired,
may be seized without compensati
on ?
To the legislature, all legislative
power is granted ; but the question
whether the act of transferring the
property of an individual to the pub-
be very seriously obstructed, if this lie, be in the nature of legislative
The lands in controversy vested ab
solutely in James Gunn, and others,
the original grantees, by the convey- to exert it.
ance of the Governor, made in pur- It is not intended to speak with
suance of an act of assembly to which disrespect of the legislature of Gcor-
the legislature was fully competent, gia or of its acts. Far from it. The
Being thus in full possession of the question is a general question, and is
legal estate, they, for a valuable con- treated as one. For although such
sidcration, conveyed portions of the powerful objections to a legislative
land to those who were willing to pur- grant, as are alleged against this, may
chase. Ifthe original transaction was not again exist, yet the principle, on
infected with fraud, these purchasers which alone this rescinding act is to
did not participate in it, and had no be supported, may be applied to even-
notice of it. They wej-e innocent, case to which it shall be the will of
Yet the legislature of Georgia has in- any legislature to apply it. The prin-
volved them in the fate of the first ciple is this ; that a legislature may,
parties to the transaction, and, if the by its own act, divest the vested estate
act be valid, has annihilated their of any man whatever, for reasons
rights also. which shall, by itself, be deemed suf-
The legislature of Georgia was a ficient.
party to this transaction; and for a Inthiscasethelegislaturcmayhavc
party to pronounce its own deed inva- had ample proof that the original
lid, whatever cause may be assigned grant was obtained by practices which
for its invalidity, must be considered can never be too much reprobated,
as a mere act of power which must and which would have justified its
find its vindication in a train of rea- abrogation so far as respected those
zoning not often heard in courts of to whom crime was imputable. But
justice. the grant, when issued, conveyed an
But the real party, it is said, are the estate in fee simple to the grantee
people and when their agents are un- clothed with all the solemnities which
faithful, the acts of those agents cease law can bestow. This estate was
to he obligatory. transferable ; and those whopurcha-
It is, however, to be recollected sed parts of it were not stained by
that the people can act only by these that guilt which infected the origin-
agents, and that, while within the al transaction. Their case is not dis-
powers conferred on them, their acts tinguishablc from the ordinary case
must be considered as the acts of the ot purchasers of a legal estate without
people. Ifthe agents be corrupt, knowledge of any secret fraud which
others may be chosen, and, if their might have led to the emanation of
contracts be examinable, the common the original grant. According to the
sentiment, as well as common usage well known course of equity, their
of mankind, points out a mode by rights could not be affected by such
which this examiuation may be made, Iraud. Their situation was the same,
?nd their validity determined. their title was the same with that of
If the legislature of Georgia was every other member of the comma
not bound to submit its pretensions to nitv who holds land by regular con
those tribunals which are established veyances Irom the original paten
for the cccurity of property, and to tec.
decide on human rights, if it might Is the power of the legislature
claim to itself the power of judging competent to the annihilation of such
in its own case, yet there are certain title, and to a resumption of the pro
great principles of justice, whose au- perty thus held ?
thoritv is universally acknowledged, The principle asserted is, that one
that ought not to be entirely disre- legislature is competent to repeal any
garded.
If the legislature he its own judge
in its own case, it would seem equita
ble that its decision should be regulat-
[ ed bv those miles which would have
power, is well worthy of eerious re
flection.
It is the peculiar province of the le
gislature to prescribe general rules
for the government of society ; the
application of those rules to individu
als in society would seem to be the
duty of other departments. How far
the power of giving the law may
involve every other power, in cases
where the constitution is silent, ne
ver has been, and perhaps never can
be definitely stated.
The validity of this rescinding act
then, might well be doubted, were
Georgia a single sovereign power
But Georgia cannot be viewed as a
single unconnected sovereign power,
on whose legislature no other restric
tions arc imposed than may be found
in its own constitution. She is a part
of a large empire, she is a member cf
the American union; and that ur.ion
contracts between two individuals,
but as excluding from that inhibition
contracts made with itself ?
The words themselves contain no
such distinction. They arc general,
and are applicable to contracts of e-
verv description. If contracts made
with the state are to be exempted
rom their operation, the exception
must arise from the character of the
contracting party, not from the words
which are employed.
absolute struction of those clauses with which
it \Yas originally associated.
It is, then, the unanimous opinion
of the court that, in this case, the.
estate having passed into the hands of
a purchaser for a valuable considera
tion;, without notice, the state of
Georgia was restrained, either by
general principles which are common
to our free institutions, or by the par
ticular provisions of the constitution
of the U. States, from passing a law
whereby the estate of the plaintiff in
the premises so purchased could be
constitutionally and legally impaired
and rendered null and void.
In overruling the demurrer to the
third plea, therefore, there is no er
ror.
The first covenant in the deed is
that the state of Georgia, at the time
ment, have manifested a determina
tion to shield themselves and their
property from the effects of those
sudden and strong passions to which
men are exposed. The restrictions
on the legislative power of the state
are obviously founded in this senti
ment ; and the constitution of the U.
S. contains what may be deemed a bill
of right s for the people of each state.
No state shall pass any bill of at
tainder, rx post facto law, or law im
pairing the obligotqp of contracts
A bill of attainder may affect the
life of an individual, or may confis
cate his property, or may do both.
In this form the power of the legis-
Whatever respect might have been of the act of the legislature thereof,
felt for the state sovereignties, it is'entitled as aforesaid, was legally seiz-
not to be disguised that the framers ed in fee of the soil thereof, subject
of the constitution viewed with some only to the extinguishment of part of
apprehension, the violent acts which the Indian title thereon,
might grow out of the feelings of the The 4th count assigns as a breach
moment, and that the people of thelof this covenant that the right to the
United States, in adopting tliatinstru-soil was in the United States and
—_ -e - . - * - • not in Georgia.
To this count the defendant pleads
that the state of Georgia was seized,
and tenders an issue on the fact,
in which the plaintiff joins. On this
issue a special verdict is found.
The jury find the grant of Carolina
by Charles 2d to the Earl of Claren
don and others, comprehending the
whole country from 36 deg. 30 min.
N. Lat. to 29 deg. N. Lat. and from
the Atlantic to the south sea.
They find that the northern part
of this territory was afterwards e-
rected into a separate colony, and
that the most northern part of the 33
deg. of N. Lat. was the boundary
lature over the lives and fortunes of line between North and South Caro
individuals is expressly restrained.
What motive then for implying in
words which import a general prohi
bition to impair the obligation of con
tracts, an exception in favor of the
right to impair the obligation of those
contracts into which the state mav
enter ?
The state legislatures can pass no
ex post facto law. An ex post facto
has a constitution, the supremacy of law is one which renders an act pu-
which all acknowledge, & which im
poses limits to the legislatures of the
several states, which none claim
right to pass. The constitution of the
United States declares that no state
shall pass any bill of attainder, ex post
factolaw,or law impairing the obli
gation of contracts.
Docs the case now under consi
deration come within this prohibito
ry section of the constitution ?
In considering this very interesting
question, we immediately ask our
selves what is a contract ? Is a grant
a contract ?
A contract is a compact between
two or more parties, and is cither ex
ecutory • r executed. An executory
contract is one in which a party binds
himself, to do or not to do a particu
lar thing ; such was the law under
which the conveyance was made by
the Governor. A contract executed
is in one in which the object of con
tract is performed; and this, says
Blackstonc, differs in nothing from
grant. The contract between Georgia
k the purchasers, was executed by the
grant. A contract executed, as well
nishable in a manner in which it was
not punishable when it was not com
mitted. Such a law may inflict pe
nalties on the person, or may inflict
pecuniary penalties which swell the
public treasury. The legislature is
then prohibited from passing a law
by which a man’s estate or any part
of it shall be seized for a crime
which was not declared, by some pre
vious law, to render him liable to
that punishment. Why, then, should
violence be done to the natural mean
ing of words for the purpose ofleav
ing to the legislature the power of
seizing, for public use, the estate
of an individual in the form of a law
annulling the title by which he holds
that estate ? The court can perceive
no sufficient grounds for making this
distinction. This rescinding act
would have the effect of an ex post
linn.
That seven of the eight proprie
tors of the Carolinas surrendered
to George 2d in the year 1729, who
appointed a Governor of South Caro
lina.
That, in 1732, George the 2d
granted to the Lord Viscount Per1
rival and others, seven eighths of the
territory between the Savannah and
the Altamaha, and extending west to
the south sea, and that the remaining
eighth part, which was still the pro
perty of the heir of Lord Carteret,
one of the original grantees of Caro
lina, was afterwards conveyed tq
them. This territory was constitute'
ed a colony and called Georgia.
That the Governor of South Caro-,
lina continued to exercise jurisdicti
on south of Georgia.
That in 1752, the grantees surren
dered to the crown.
That in 1754, a Governor was ap
pointed by the crown, with a com
mission describing the boundaries of
tne colony.
That a treaty of peace was conclud
ed betwen Great Britain and Spain,
in 1763, in which the latter ceded,
to the former, Florida with Fort St.
Augustin and the hay of Pensacola.
That in October 1763, the King of
facto law. It forfeits the estate of G. Britain issued a proclamation ere -
Fletcher for a crime not committed
by himself, but by those from whom
he purchased. This cannot be effect
ed in the form of an ex post facto law
or bill of attainder ; why, then, is it
allowable in the form of a law annul-
as one which is executory, containsJing the original grant ?
obligations binding on the parties.| 1 be argument in favor of presum-
A grant, in its own nature, amounts ing an intention to except a case not
to an extinguisment of the right of .excepted by the words of the consti-
the grantor, and implies a contract tution, is susceptible of some illustra-
act which a former legislature
competent to pass ; and that one legis
lature cannot abridge the powers of a
succeeding legislature
not to re-assert that right. A party
is therefore always estopped by his
own grant.
Since, then, in fact, a grant is a
contract executed, the obligation of
which still continues, and since the
constitution uses the general term
contract, without distinguishing be
tween those which arc executory,
and those which are executed, it must
be construed to comprehend the latter
is well as the former. A law annul
ling conveyances between individu
als, and declaring that the grantors
should stand seized of their former
estates, notwithstanding those grants,
would be as repugnant to the consti
tution, as a law discharging the ven
dors of property from the obligation
of executing their contracts by con
veyances. It would be strange if
tion from a principle originally in
grafted in that instrument, though no
longer a part of it. The constitution,
as passed, gave the courts of the U.
S. jurisdiction in suits brought a-
gainst individual states. A state
then, which violated its own contract
was suable in the courts of the U. S.
for that violation. Would it have
been a defence in such a suit to say
that the state had passed a law ab
solving itself from the contract ? It
is scarcely to be conceived that such
a defence could be set up. And yet
if a state is neither restrained by the
eneral principles of our political in
stitutions, nor by the words of the
constitution from impairing the obli
gation of its own contracts, such a
lefencc would be a valid one. This
leatui e is no longer found in the con-
Fhe correctness ot thi3 principle, contract to convey was secured by'jtituiion ; but i; aids in the con
ating four new colonies, Quebec, East
Florida West Florida & Grenada, &
prescribing the bounds of each, and
further declaring that all the lands Jk •
tween the Altamaha and St. Mary’s
should be annexed to Georgia. The
same proclamation contained a clause
reserving, under the dominion and
protection of the crown, for the use
of the Indians all the lands on the
western waters, Sc forbidding a settle
ment on them, or a purchase of them
from the Indians. The lands convey
ed to the plantiff lie on the western
waters.
That in November 1763, a com
mission was issued to the Governor of
Georgia, in which the boundaries of
that province are described as extend
ing westward to the Mississippi. A
commission, describing boundaries of
the same extent, was afterwards
granted in 1764.
That a war broke out between
Great Britain and her colonies, which
terminated in a treaty of peace ac
knowledging them as sovereign and
independent states.
That in April 1737, a convention
was entered into between the states of
South Carolina and Georgia settling
the boundary line between them.
The jury afterwards describe the