FLETCHER
v. PECK.
10
In this cause there are demurrers
to three pleas filed in the circuit court, and a special verdict found on an
issue joined on the 4th plea. The pleas
were all sustained, and judgment was rendered for the defendant.
To support this judgment, this
court must concur in overruling all the demurrers; for, if the plea to any one
of the counts be bad, the plaintiff below is entitled to damages on that count.
The covenant, on which the breach
in the first count is assigned, is in these words; "that the legislature
of the said state, (
The breach of this covenant is
assigned in these words; "now the said Fletcher [says] that, at the time
when the said act of the legislature [**175] of Georgia, entitled an act, &c. was
passed, the said legislature had no authority to sell and dispose of the
tenements aforesaid, or of any part thereof, in the manner pointed out in the
said act."
[*126]
The plea sets forth the constitution of the state of
To this plea the plaintiff
demurred; and the defendant joined in the demurrer.
If it be admitted that sufficient
matter is shown, in this plea, to have justified the defendant in denying the
breach alleged in the count, it must also be admitted that he has not denied
it. The breach alleged is, that the
legislature had not authority to sell.
The bar set up is, that the governor had authority to convey. Certainly
an allegation, that the principal has no right to give a power, is not denied
by alleging that he has given a proper power to the agent.
It is argued that the plea shows,
although it does not, in terms, aver, that the legislature had authority to
convey. The court does not mean to controvert this position, but its admission
would not help the case. The matter set
forth in the plea, as matter of inducement, may be argumentatively good, may
warrant an averment which negatives the averment in the declaration, but does
not itself constitute that negative.
Had the plaintiff [***70] tendered an issue in fact upon this plea,
that the governor was legally empowered to sell and convey the premises, it
would have been a departure from his declaration; for the count to which this
plea is intended as a bar alleges no want of authority in the governor. He was
therefore under the necessity of demurring.
But it is contended that although
the plea be substantially bad, the judgment, overruling the demurrer, is
correct, because the declaration is defective.
The defect alleged in the
declaration is, that the [*127] breach is not assigned in the words of the
covenant. The covenant is, that the legislature had a right to convey, and the
breach is, that the legislature had no authority to convey.
It is not necessary that a breach
should be assigned in the very words of the covenant. It is enough that the
words of the assignment show, unequivocally, a substantial breach. The assignment under consideration does show
such a breach. If the legislature had no
authority to convey, it had no right to convey.
It is, therefore, the opinion of
this court, that the circuit court erred in overruling the demurrer to the
first plea by the defendant pleaded, and that their judgment [***71] ought therefore to be reversed, and that
judgment on that plea be rendered for the plaintiff.
After the opinion of the court was
delivered, the parties agreed to amend the pleadings, and the cause was
continued for further consideration.
The cause having been again argued
at this term,
The pleadings being now amended,
this cause comes on again to be heard on sundry demurrers, and on a special
verdict.
The suit was instituted on several
covenants contained in a deed made by John Peck, the defendant in error,
conveying to Robert Fletcher, the plaintiff in error, certain lands which were
part of a large purchase made by James Gunn and others, in the year 1795, from
the state of Georgia, the contract for which was made in the form of a bill
passed by the legislature of that state.
The first count in the declaration
set forth a breach [*128] in the second covenant contained in the deed.
The covenant is, "that the legislature of the state of
The plea in bar sets forth the
constitution of the state of
To this plea the plaintiff below
demurred, and the defendant joined in demurrer.
That the legislature of Georgia,
unless restrained by its own constitution, possesses the power of disposing of
the unappropriated lands within its own limits, in such manner as its own
judgment shall dictate, is a proposition not to be controverted. The only question, then, presented by this
demurrer, for the consideration of the court, is this, did the then
constitution of the state of
The question, whether a law be
void for its repugnancy to the constitution, is, at all times, a question of
much delicacy, which ought seldom, if ever, to be decided in the affirmative,
in a doubtful case. The court, when
impelled by duty to render [***73]
such a judgment, would be unworthy of its station, could it be unmindful
of the solemn obligations which that station imposes. But it is not on slight implication and vague
conjecture that the legislature is to be pronounced to have transcended its
powers, and its acts to be considered as void.
The opposition between the constitution and the law should be such that
the judge feels a clear and strong conviction of their incompatibility with
each other.
In this case the court can
perceive no such opposition. In the
constitution of
In overruling the demurrer,
therefore, to the first plea, the circuit court committed no error.
The 3d covenant is, that all the
title which the state of
[**176]
The 2d count assigns, in substance, as a breach of this covenant, that
the original grantees from the state of Georgia promised [***74] and assured divers members of the
legislature, then sitting in general assembly, that if the said members would
assent to, and vote for, the passing of the act, and if the said bill should
pass, such members should have a share of, and be interested in, all the lands
purchased from the said state by virtue of such law. And that divers of the said members, to whom
the said promises were made, were unduly influenced thereby, and, under such
influence, did vote for the passing of the said bill; by reason whereof the
said law was a nullity, &c. and so the title of the state of
The plea to this count, after protesting
that the promises it alleges were not made, avers, that until after the
purchase made from the original grantees by James Greenleaf, under whom the
said Peck claims, neither the said James Greenleaf, nor the said Peck, nor any
of the mesne vendors between the said Greenleaf and Peck, had any notice or
knowledge that any such promises or assurances were made by the said original
grantees, or either of them, to any of the members of the legislature of the
state of Georgia.
To this plea the plaintiff demurred
generally, and the defendant [***75]
joined in the demurrer.
[*130]
That corruption should find its way into the governments of our infant republics,
and contaminate the very source of legislation, or that impure motives should
contribute to the passage of a law, or the formation of a legislative contract,
are circumstances most deeply to be deplored.
How far a court of justice would, in any case, be competent, on
proceedings instituted by the state itself, to vacate a contract thus formed,
and to annul rights acquired, under that contract, by third persons having no
notice of the improper means by which it was obtained, is a question which the
court would approach with much circumspection.
It may well be doubted how far the validity of a law depends upon the
motives of its framers, and how far the particular inducements, operating on
members of the supreme sovereign power of a state, to the formation of a
contract by that power, are examinable in a court of justice. If the principle be conceded, that an act of
the supreme sovereign power might be declared null by a court, in consequence
of the means which procured it, still would there be much difficulty in saying
to what extent those means must be applied to [***76] produce this effect. Must it be direct corruption, or would
interest or undue influence of any kind be sufficient? Must the vitiating cause operate on a
majority, or on what number of the members?
Would the act be null, whatever might be the wish of the nation, or
would its obligation or nullity depend upon the public sentiment?
It the majority of the legislature
be corrupted, it may well be doubted, whether it be within the province of the
judiciary to control their conduct, and, if less than a majority act from
impure motives, the principle by which judicial interference would be
regulated, is not clearly discerned.
Whatever difficulties this subject
might present, when viewed under aspects of which it may be susceptible, this
court can perceive none in the particular pleadings now under consideration.
This is not a bill brought by the
state of
This solemn question cannot be
brought thus collaterally and incidentally before the court. It would be indecent, in the extreme, upon a
private contract, between two individuals, to enter into an inquiry respecting
the corruption of the sovereign power of a state. If the title be plainly deduced from a
legislative act, which the legislature might constitutionally pass, if the act
be clothed with all the requisite forms of a law, a court, sitting as a court
of law, cannot sustain a suit brought by one individual against another founded
on the allegation that the act is a nullity, in consequence of the impure
motives which influenced certain members of the legislature which passed the
law.
The circuit court, therefore, did
right in overruling this demurrer.
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 [***78]
subsequent act of any subsequent legislature of the state of
The third count recites the undue
means practiced on certain members of the legislature, as stated in the second
count, and then alleges that, in consequence of these practices, and of other
causes, a subsequent legislature passed an act annulling and rescinding the law
under which the conveyance to the original grantees was made, declaring that
conveyance void, and asserting the title of the state to the lands it
contained. The [*132]
count proceeds to recite at large, this rescinding act, and concludes
with averring that, by reason of this act, the title of the said Peck in the
premises was constitutionally and legally 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 purchaser under the original grantees, and all
intermediate holders of the property, were purchasers without notice.
To this 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.
The lands in controversy vested
absolutely [***79] in James Gunn
and others, the original grantees, by the conveyance of the governor, made in
pursuance of an act of assembly to which the legislature was fully
competent. Being thus in full possession
of the legal estate, they, for a valuable consideration, conveyed portions of
the land to those who were willing to purchase.
[**177] If the original transaction was infected with
fraud, these purchasers did not participate in it, and had no notice of
it. They were innocent. Yet the legislature of
The legislature of Georgia was a
party to this transaction; and for a party to pronounce its own deed invalid,
whatever cause may be assigned for its invalidity, must be considered as 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 their agents are unfaithful, the acts of those agents
cease to be obligatory.
It is, however, to be recollected
that the people can [*133] act only by these agents, and that, while
within the [***80] powers
conferred on them, their acts must be considered as the acts of the
people. If the agents be corrupt, others
may be chosen, and, if their contracts be examinable, the common sentiment, as
well as common usage of mankind, points out a mode by which this examination
may be made, and their validity determined.
If the legislature of Georgia was
not bound to submit its pretensions to those tribunals which are established
for the security of property, and to decide on human rights, if it might claim
to itself the power of judging in its own case, yet there are certain great
principles of justice, whose authority is universally acknowledged, that ought
not to be entirely disregarded.
If the legislature be its own
judge in its own case, it would seem equitable that its decision should be
regulated by those rules which would have regulated the decision of a judicial
tribunal. The question was, in its nature,
a question of title, and the tribunal which decided it was either acting in the
character of a court of justice, and performing a duty usually 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 [***81] set aside a conveyance obtained by fraud, and
the fraud be clearly proved, the conveyance will be set aside, as between the
parties; but the rights of third persons, who are purchasers without notice,
for a valuable consideration, cannot be disregarded. Titles, which, according to every legal test,
are perfect, are acquired with that confidence which is inspired by the opinion
that the purchaser 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 concealed
defect cannot be set up against him. He
has paid his money for a title good at law, he is innocent, whatever may be the
guilt of others, and equity will not subject him to the penalties attached to
that guilt. All titles would be
insecure, and the intercourse [*134] between man and man would be very seriously
obstructed, if this principle be overturned.
A court of chancery, therefore,
had a bill been brought to set aside the conveyance made to James Gunn and
others, as being obtained by improper practices with the legislature, whatever
might have been its decision as respected the original grantees, would have [***82] been bound, by its own rules, and by the clearest
principles of equity, to leave unmolested those who were purchasers, without
notice, for a valuable consideration.
If the legislature felt itself
absolved from those rules of property which are common to all the citizens of
the United States, and from those principles of equity which are acknowledged
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 lands, if it shall be the will of
the legislature so to exert it.
It is not intended to speak with
disrespect of the legislature of
In this case the legislature may
have had ample [***83] proof that
the original grant was obtained by practices which can never be too much
reprobated, and which would have justified its abrogation so far as respected
those to whom crime was imputable. But
the grant, when issued, conveyed an estate in fee-simple to the grantee,
clothed with all the solemnities which law can bestow. This estate was transferable; and those who
purchased parts of it were not stained by that
[*135] guilt which
infected the original transaction. Their
case is not distinguishable from the ordinary case of purchasers of a legal
estate without knowledge of any secret fraud which might have led to the
emanation of the original grant.
According to the well known course of equity, their rights could not be
affected by such fraud. Their situation
was the same, their title was the same, with that of every other member of the
community who holds land by regular conveyances from the original patentee.
Is the power of the 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 competent to repeal any act which a former legislature was
competent to pass; and that [***84]
one legislature cannot abridge the powers of a succeeding legislature.
The correctness of this principle,
so far as respects general legislation, can never be controverted. But, if an act be done under a law, a
succeeding legislature cannot undo it.
The past cannot be recalled by the most absolute power. Conveyances have been made, those conveyances
have vested legal estates, and, if those estates may be seized by the sovereign
authority, still, that they originally vested is a fact, and cannot cease to be
a fact.
When, then, a law is in its nature
a contract, when absolute rights have vested under that contract, a repeal of
the law cannot divest those rights; and the act of annulling them, if
legitimate, is rendered so by a power applicable to the case of every
individual in the community.
[**178]
It may well be doubted whether the nature of society and of government
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 individual,
fairly and honestly acquired, may be seized without compensation.
[*136]
To the legislature all legislative power is granted; but the question,
whether the act [***85] of transferring
the property of an individual to the public, be in the nature of the
legislative power, is well worthy of serious reflection.
It is the peculiar province of the
legislature to prescribe general rules for the government of society; the
application of those rules to individuals 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, never has been, and perhaps never can be, definitely stated.
The validity of this rescinding
act, then, might well be doubted, were
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 a contract? 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 himself to do, or not to do, a particular thing;
such was the law under which the conveyance was made by the governor. A
contract executed is one in which the object
[*137] of contract is
performed; and this, says Blackstone, differs in nothing from a grant. The contract between Georgia and the
purchasers was executed by the grant. A
contract executed, as well as one which is executory, contains obligations
binding on the parties. A grant, in its
own nature, amounts to an extinguishment of the right of the grantor, and
implies a contract not to reassert 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 between
those which are [***87] executory
and those which are executed, it must be construed to comprehend the latter as
well as the former. A law annulling
conveyances between individuals, and declaring that the grantors should stand
seised of their former estates, notwithstanding those grants, would be as
repugnant to the constitution as a law discharging the vendors of property from
the obligation of executing their contracts by conveyances. It would be strange
if a contract to convey was secured by the constitution, while an absolute
conveyance remained unprotected.
If, under a fair construction the
constitution, grants are comprehended under the term contracts, is a grant from
the state excluded from the operation of the provision? Is the clause to be considered as inhibiting
the state from impairing the obligation of contracts between two individuals,
but as excluding from that inhibition contracts made with itself?
The words themselves contain no
such distinction. They are general, and
are applicable to contracts of every description. If contracts made with the state are to be
exempted from their operation, the exception must arise from the character of
the contracting party, not from the words which [***88] are employed.
Whatever respect might have been
felt for the state sovereignties, it is not to be disguised that the framers of
the constitution viewed, with some apprehension, [*138]
the violent acts which might grow out of the feelings of the moment; and
that the people of the United States, in adopting that instrument, have
manifested a determination 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 states are obviously founded in this sentiment; and the constitution of the
No state shall pass any bill of
attainder, ex post facto law, or law impairing the obligation of contracts.
A bill of attainder may affect the
life of an individual, or may confiscate his property, or may do both.
In this form the power of the
legislature over the lives and fortunes of individuals is expressly
restrained. What motive, then, for
implying, in words which import a general prohibition to impair the obligation
of contracts, an exception in favor of the right to impair the obligation [***89] of those contracts into 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 act punishable
in a manner in which it was not punishable when it was committed. Such a law may inflict penalties 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 previous law, to render
him liable to that punishment. Why,
then, should violence be done to the natural meaning of words for the purpose
of leaving 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 facto law. It
forfeits the estate of Fletcher for a crime not committed by himself, but by
those from whom he purchased. [*139] This cannot be effected in the form of an ex
post facto law, or bill of attainder; why,
[**179] then, is it
allowable [***90] in the form of
a law annulling the original grant?
The argument in favor of presuming
an intention to except a case, not excepted by the words of the constitution,
is susceptible of some illustration from a principle originally engrafted in
that instrument, though no longer a part of it.
The constitution, as passed, gave the courts of the
It is, then, the unanimous opinion
of the court, that, in this case, the estate having passed into the hands of [***91] a purchaser for a valuable consideration,
without notice, the state of Georgia was restrained, either by general
principles which are common to our free institutions, or by the particular
provisions of the constitution of the United 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
3d plea, therefore, there is no error.
The first covenant in the deed is,
that the state of
[*140]
The 4th count assigns, as a breach of this covenant, that the right to
the soil was in the
To this count the defendant
pleads, that the state of
The jury find the grant of
Carolina by Charles second to the Earl of Clarondon and others, comprehending
the whole country from 36 deg. 30 min. north [***92] lat. to 29 deg. north lat., and from the
Atlantic to the South Sea.
They find that the northern part
of this territory was afterwards erected into a separate colony, and that the
most northern part of the 35 deg. of north lat. was the boundary line between
North and
That seven of the eight
proprietors of the
That, in 1732, George the 2d
granted, to the Lord Viscount Percival and others, seven eights of the
territory between the Savannah and the Alatamaha, and extending west to the
South Sea, and that the remaining eighth part, which was still the property of
the heir of Lord Carteret, one of the original grantees of Carolina, was
afterwards conveyed to them. This
territory was constituted a colony and called
That the Governor of South
Carolina continued to exercise jurisdiction south of
That, in 1752, the grantees
surrendered to the crown.
That, in 1754, a governor was
appointed by the crown, with a commission describing the boundaries of the
colony.
That a treaty of peace was
concluded between Great [*141]
That, in October, 1763, the King
of Great Britain issued a proclamation, creating four new colonies, Quebec,
East Florida, West Florida, and Grenada; and prescribing the bounds of each,
and further declaring that all the lands between the Alatamaha, 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, and
forbidding a settlement on them, or a purchase of them from the Indians. The lands conveyed to the plaintiff lie on
the western waters.
That, in November, 1763, a
commission was issued to the Governor of Georgia, in which the boundaries of
that province are described, as extending westward to the
That a war broke out between
That in April, 1787, a convention
was entered into between the states of
The jury afterwards described the
situation of the lands mentioned in the plaintiff's declaration, in such manner
that their lying within the limits of
The counsel for the plaintiff
rests their argument on a single proposition.
They contend that the reservation for the use of the Indians, contained
in the proclamation [*142] of 1763, excepts the lands on the western
waters from the colonies within whose bounds they would otherwise have been,
and that they were acquired by the revolutionary war. All acquisitions during the war, it is
contended, were made by the joint arms, for the joint benefit of the
The court does not understand the
proclamation as it is understood by the counsel for the plaintiff. The reservation for the use of the Indians
appears to be a temporary arrangement suspending, for a time, the settlement of
the country reserved, and the powers of the royal governor within the territory
reserved, [***95] but is not conceived to amount to an
alteration of the boundaries of the colony. If the language of the proclamation
be, in itself, doubtful, the commissions subsequent thereto, which [**180] were given to the governors of
The question, whether the vacant
lands within the
It is the opinion of the court,
that the particular land stated in the declaration appears, from this special
verdict, to lie within the state of
Some difficulty was produced by
the language of the covenant, and of the pleadings. It was doubted whether a state can be seised
in fee of lands, subject to the Indian title, and whether a decision that they
were seised in fee, might not be construed to amount to a decision that their
grantee might maintain an ejectment for them, notwithstanding that title.
The majority of the court [***96] is of opinion that the nature of the Indian
title, which is certainly to be respected
[*143] by all courts,
until it be legitimately extinguished, is not such as to be absolutely
repugnant to seisin in fee on the part of the state.
Judgment affirmed with costs.
JOHNSON, J. dissenting
In this case I entertain, on two points, an
opinion different from that which has been delivered by the court.
I do not hesitate to declare that
a state does not possess the power of revoking its own grants. But I do it on a general principle, on the
reason and nature of things: a principle which will impose laws even on the
deity.
A contrary opinion can only be
maintained upon the ground that no existing legislature can abridge the powers
of those which will succeed it. To a
certain extent this is certainly correct; but the distinction lies between
power and interest, the right of jurisdiction and the right of soil.
The right of jurisdiction is
essentially connected to, or rather identified with, the national
sovereignty. To part with it is to
commit a species of political suicide, In fact, a power to produce its own
annihilation is an absurdity in terms.
It is a power as utterly [***97]
incommunicable to a political as to a natural person. But it is not so with the interests or
property of a nation. Its possessions
nationally are in nowise necessary to its political existence; they are
entirely accidental, and may be parted with in every respect similarly to those
of the individuals who compose the community.
When the legislature have once conveyed their interest or property in
any subject to the individual, they have lost all control over it; have nothing
to act upon; it has passed from them; is vested in the individual; becomes
intimately blended with his existence, as essentially so as the blood that
circulates through his system. The
government may indeed demand of him the one or the other, not because they are
not his, but because whatever is his is his country's.
[*144]
As to the idea, that the grants of a legislature may be void because the
legislature are corrupt, it appears to me to be subject to insuperable
difficulties. The acts of the supreme
power of a country must be considered pure for the same reason that all
sovereign acts must be considered just; because there is no power that can
declare them otherwise. The absurdity in
this case would [***98] have been
strikingly perceived, could the party who passed the act of cession have got
again into power, and declared themselves pure, and the intermediate
legislature corrupt.
The security of a people against
the misconduct of their rulers, must lie in the frequent recurrence to first
principles, and the imposition of adequate constitutional restrictions. Nor would it be difficult, with the same
view, for laws to be framed which would bring the conduct of individuals under
the review of adequate tribunals, and make them suffer under the consequences
of their own immoral conduct.
I have thrown out these ideas that
I may have it distinctly understood that my opinion on this point is not
founded on the provision in the constitution of the United States, relative to
laws impairing the obligation of contracts.
It is much to be regretted that words of less equivocal signification,
had not been adopted in that article of the constitution. There is reason to believe, from the letters
of Publius, which are well known to be entitled to the highest respect, that the
object of the convention was to afford a general protection to individual
rights against the acts of the state legislatures. [***99] Whether the words, "acts impairing the
obligation of contracts," can be construed to have the same force as must
have been given to the words "obligation and effect of contracts," is
the difficulty in my mind.
There can be no solid objection to
adopting the technical definition of the word "contract," given by
Blackstone. The etymology, the classical
signification, and the civil law idea of the word, will all support it. But the difficulty arises on the word
"obligation," [*145] which certainly imports an existing moral or
physical necessity. Now a grant or
conveyance by no means necessarily implies the continuance of an obligation
beyond the moment of executing it. It is
most generally but the consummation of a contract, is functus officio the
moment it is executed, and continues afterwards to be nothing more than the
evidence that a certain act was done.
I enter with great hesitation upon
this question, because it involves a subject of the greatest delicacy and much
difficulty. The states and the United
States are continually legislating on the subject of contracts, prescribing the
mode of authentication, the time within which suits shall be prosecuted for
them, in many [***100] cases
affecting existing contracts by the laws which they pass, and declaring them to
cease or lose their effect for want of compliance, in the parties, with such
statutory provisions. All these acts
appear to be within the most correct limits of legislative powers, and most
beneficially exercised, and certainly could not have been intended to be
affected by this constitutional provision; yet where to draw the line, or how
to define or limit the words, "obligation of contracts," will be
found a subject of extreme difficulty.
To give it the general effect of a
restriction of the state powers in favor of private rights, is [**181] certainly going very far beyond the obvious
and necessary import of the words, and would operate to restrict the states in
the exercise of that right which every community must exercise, of possessing
itself of the property of the individual, when necessary for public uses; a
right which a magnanimous and just government will never exercise without amply
indemnifying the individual, and which perhaps amounts to nothing more than a
power to oblige him to sell and convey, when the public necessities require it.
The other point on which I dissent
from the [***101] opinion of the
court, is relative to the judgment which ought to be given on the first count.
Upon that count we are [*146] called upon substantially to decide,
"that the state of
This is a question of much
delicacy, and more fitted for a diplomatic or legislative than a judicial
inquiry. But I am called upon to make a
decision, and I must make it upon technical principles.
The question is, whether it can be
correctly predicated of the interest or estate which the state of
To me it appears that the interest
of
The correctness of this opinion
will depend upon a just view of the state of the Indian nations. This will be found to be very various. Some have totally extinguished their national
fire, and submitted themselves to the laws of the states: others have, by
treaty, acknowledged that they hold their national existence at the will of the
state within which they reside: others retain a limited sovereignty, and the
absolute proprietorship of their soil. The latter is the case of the tribes to
the west of
I have been very unwilling to
proceed to the decision of this cause at all.
It appears to me to bear strong evidence, upon the face of it, of being
a mere feigned case. It is our duty to
decide on the rights, but not on the speculations of parties. My confidence, [*148]
however, in the respectable gentlemen who have been engaged for the
parties, has induced me to abandon my scruples, in the belief that they would
never consent to impose a mere feigned case upon this court.