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i 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 NORTH END OF THE STATE-HOUSE. TERMS THREE DOLLARS PER AN NUM, ONE HALF TO BE PAID IN AD VANCE. ADVERTISEMENTS WILL BE THANK FULLY RECEIVED, AND PUBLISHED AT THE CUSTOMARY PRICES. 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