U.S. Supreme Court Fletcher v. Peck, 10 U.S. 6 Cranch 87
87 (1810) Fletcher v. Peck 10 U.S. (6 Cranch) 87 ERROR TO THE CIRCUIT
COURT FOR THE DISTRICT OF
MASSACHUSETTS Syllabus If the breach of covenant assigned be that the State had no
authority to sell and dispose of the land, it is not a good plea in
bar to say that the Governor was legally empowered to sell and
convey the premises, although the facts stated in the plea as
inducement are sufficient to justify a direct negative of the
breach assigned.

															It is not necessary that a breach of covenant be assigned in the
very words of the covenant. It is sufficient if it show a
substantial breach.

															The Court will not declare a law to be unconstitutional unless
the opposition between the Constitution and the law be clear and
plain.

															The Legislature of Georgia, in 1795, had the power of disposing
of the unappropriated lands within its own limits.

															In a contest between two individuals claiming under an act of a
legislature, the Court cannot inquire into the motives which
actuated the members of that legislature. If the legislature might
constitutionally pass such an act; 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 between individuals 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.

															When a law is in the nature of a contract, when absolute rights
have vested under that contract, a repeal of the law cannot devest
those rights.

															A party to a contract cannot pronounce its own deed invalid,
although that party be a sovereign State. A grant is a contract
executed.

															A law annulling conveyances is unconstitutional because it is a
law impairing the obligation of contracts within the meaning of the
Constitution of the United States.

															The proclamation of the King of Great Britain in 1763 did not
alter the boundaries of Georgia.

															The nature of the Indian title is not such as to absolutely
repugnant to seisin in fee on the part of the State.

															The question whether a law is 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 a doubtful case. The Court,
when impelled by duty to render 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 act to be considered 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.

															One individual who holds lands in the State of Georgia under a
deed covenanting that the title of Georgia was in the grantor
brings an action of covenant on this deed, and assigns as a breach
that some of the members of the Legislature were induced to vote in
favour of the law which constituted the contract by being promised
an interest in it, and that therefore the act is a mere nullity.
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 the
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 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 acts.

															If a suit be brought to 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.

															The principle asserted is that one legislature is competent to
repeal any act which a former legislature was competent to pass,
and that one legislature cannot abridge the powers of a succeeding
legislature. The correctness of this principle so far as it
respects general legislation cannot 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.

															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 upon 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 for
punishment.

															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 is of opinion that the nature
of the Indian title, which is certainly to be respected by all
courts until it be legitimately extinguished, is not such as to be
absolutely repugnant to a seisin in fee on the part of the
State.

															Error to the Circuit Court for the District of Massachusetts in
an action of covenant brought by Fletcher against Peck.

															The first count of the declaration states that Peck, by his deed
of bargain and sale dated the 14th of May, 1803, in consideration
of 3,000 dollars, sold and conveyed to Fletcher 15,000 acres of
land lying in common and undivided in a tract described as follows:
beginning on the river Mississippi, where the latitude 32 deg. 40
min. north of the equator intersects the same, running thence along
the same parallel of latitude a due east course to the Tombigby
river, thence up the said Tombigby river to where the latitude of
32 deg. 43 min. 52 sec. intersects the same, thence along the same
parallel of latitude a due west course to the Mississippi; thence
down the said river, to the place of beginning; the said described
tract containing 500,000 acres, and is the same which was conveyed
by Nathaniel Prime to Oliver Phelps by deed dated the 27th of
February, 1796, and of which the said Phelps conveyed four-fifths
to Benjamin Hichborn, and the said Peck by deed dated the 8th of
December, 1800; the said tract of 500,000 acres being part of a
tract which James Greenleaf conveyed to the said N. Prime, by deed
dated the 23d of September, 1795, and is parcel of that tract which
James Gunn, Mathew M'Allister, George Walker, Zachariah Cox, Jacob
Walburger, William Longstreet and Wade Hampton, by deed dated 22d
of August, 1795, conveyed to the said James Greenleaf; the same
being part of that tract which was granted by letters patent under
the great seal of the State of Georgia, and the signature of George
Matthews, Esq. Governor of that State, dated the 13th of January,
1795, to the said James Gunn and others, under the name of James
Gunn, Mathew M'Allister, and George Page 10 U. S. 88 Walker and their associates, and their heirs and assigns in fee
simple, under the name of the Georgia company; which patent was
issued by virtue of an Act of the Legislature of Georgia, passed
the 7th of January, 1795, entitled

															"An act supplementary to an act for appropriating part of the
unlocated territory of this State for the payment of the late State
troops, and for other purposes therein mentioned, and declaring the
right of this State to the unappropriated territory thereof, for
the protection and support of the frontiers of this State, and for
other purposes."

															That Peck, in his deed to Fletcher, covenanted

															"that the State of Georgia aforesaid was, at the time of the
passing of the act of the legislature thereof (entitled as
aforesaid), legally seised in fee of the soil thereof, subject only
to the extinguishment of part of the Indian title thereon. And that
the Legislature of the said State at the time of passing the act of
sale aforesaid had good right to sell and dispose of the same in
manner pointed out by the said Act. And that the Governor of the
said State had lawful authority to issue his grant aforesaid, by
virtue of the said Act. And further, that all the title which the
said State of Georgia ever had in the aforegranted premises has
been legally conveyed to the said John Peck by force of the
conveyances aforesaid. And further, that the title to the premises
so conveyed by the State of Georgia, and finally vested in the said
Peck, has been in no way Constitutionally or legally impaired by
virtue of any subsequent act of any subsequent Legislature of the
said State of Georgia."

															The breaches assigned in the first count was that, at the time
the said Act of 7th of January, 1795, 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."

															In the second count,

															"that at Augusta, in the said State of Georgia, on the 7th day
of January, 1795, the said James Gunn, Mathew M'Allister Page 10 U. S. 89 and George Walker, promised and assured divers members of the
Legislature of the said State then duly and legally sitting in
General Assembly of the said State, that if the said members would
assent to and vote for the passing of the act of the said General
Assembly, entitled as aforesaid, the same then being before the
said General Assembly in the form of a bill, and if the said bill
should pass into a law, that such members should have a share of,
and be interested in, all the lands which they the said Gunn,
M'Allister and Walker and their associates should purchase of the
said State by virtue of and under authority of the same law, and
that divers of the said members to whom the said promise and
assurance was so made as aforesaid were unduly influenced thereby,
and, under such influence, did then and there vote for the passing
the said bill into a law, by reason whereof the said law was a
nullity, and, from the time of passing, the same as aforesaid was,
ever since has been, and now is, absolutely void and of no effect
whatever; and that the title which the said State of Georgia had in
the aforegranted premises at any time whatever was never legally
conveyed to the said Peck, by force of the conveyances
aforesaid."

															The third count, after repeating all the averments and recitals
contained in the second, further averred that, after the passing of
the said act, and of the execution of the patent aforesaid, the
General Assembly of the State of Georgia, being a legislature of
that State subsequent to that which passed the said act, at a
session thereof, duly and legally holden at Augusta in the said
State, did, on the 13th of February, 1796, because of the undue
influence used as aforesaid in procuring the said act to be passed,
and for other causes, pass another certain act in the words
following that is to say,

															"An act declaring null and void a certain usurped act passed by
the last legislature of this State at Augusta, the 7th day of
January, 1795, under the pretended title of"

															"An act supplementary to an act entitled an act for
appropriating a part of the unlocated Page 10 U. S. 90 territory of the State for the payment of the late State troops,
and for other purposes therein mentioned, declaring the right of
this State to the unappropriated territory thereof for the
protection of the frontiers, and for other purposes,"

															"and for expunging from the public records the said usurped act,
and declaring the right of this State to all lands lying within the
boundaries therein mentioned."

															By which, after a long preamble, it is enacted

															"That the said usurped act passed on the 7th of January, 1795,
entitled, &c. be, and the same is hereby declared, null and
void, and the grant or grants right or rights, claim or claims,
issued, deduced, or derived therefrom, or from any clause, letter
or spirit of the same, or any part of the same, is hereby also
annulled, rendered void, and of no effect, and as the same was made
without constitutional authority, and fraudulently obtained, it is
hereby declared of no binding force or effect on this State, or the
people thereof, but is and are to be considered, both law and
grant, as they ought to be, ipso facto, of themselves,
void, and the territory therein mentioned is also hereby declared
to be the sole property of the State, subject only to the right of
treaty of the United States to enable the State to purchase, under
its preemption right, the Indian title to the same."

															The second section directs the enrolled law, the grant, and all
deeds, contracts, &c. relative to the purchase to be expunged
from the records of the State, &c.

															The third section declares that neither the law nor the grant
nor any other conveyance, or agreement relative thereto shall be
received in evidence in any court of law or equity in the State so
far as to establish a right to the territory or any part thereof,
but they may be received in evidence in private actions between
individuals for the recovery of money paid upon pretended sales,
&c.

															The fourth section provides for the repayment of money, funded
stock, &c. which may have been paid into the treasury, provided
it was then remaining Page 10 U. S. 91 therein, and provided the repayment should be demanded within
eight months from that time.

															The fifth section prohibits any application to Congress, or the
General Government of the United States for the extinguishment of
the Indian claim.

															The sixth section provides for the promulgation of the act.

															The count then assigns a breach of the covenant in the following
words, viz.: "And by reason of the passing of the said last-mentioned act,
and by virtue thereof, the title which the said Peck had, as
aforesaid, in and to the tenements aforesaid, and in and to any
part thereof, was constitutionally and legally impaired, and
rendered null and void."

															The fourth count, after reciting the covenants as in the first,
assigned as a breach

															"that at the time of passing of the Act of the 7th of January,
1795, the United States of America were seised in fee simple of all
the tenements aforesaid, and of all the soil thereof, and that, at
that time the State of Georgia was not seised in fee simple of the
tenements aforesaid, or of any part thereof, nor of any part of the
soil thereof, subject only to the extinguishment of part of the
Indian title thereon."

															The defendant pleaded four pleas, viz.: First plea. As to the breach assigned in the first count, he
says,

															That, on the 6th of May, 1789, at Augusta, in the State of
Georgia, the people of that State by their delegates, duly
authorized and empowered to form, declare, ratify, and confirm a
constitution for the government of the said State, did form,
declare, ratify, and confirm such constitution, in the words
following:

															[Here was inserted the whole Constitution, the sixteenth section
of which declares that the General Assembly hall have power to make
all laws and ordinances Page 10 U. S. 92 which they shall deem necessary and proper for the good of the
State which shall not be repugnant to this constitution.] The plea
then avers that, until and at the ratification and confirmation
aforesaid of the said constitution, the people of the said State
were seised, among other large parcels of land, and tracts of
country, of all the tenements described by the said Fletcher in his
said first count, and of the soil thereof in absolute sovereignty,
and in fee simple (subject only to the extinguishment of the Indian
title to part thereon), and that, upon the confirmation and
ratification of the said Constitution, and by force thereof, the
said State of Georgia became seised in absolute sovereignty, and in
fee simple, of all the tenements aforesaid, with the soil thereof,
subject as aforesaid, the same being within the territory and
jurisdiction of the said State, and the same State continued so
seised in fee simple until the said tenements and soil were
conveyed by letters patent under the great seal of the said State,
and under the signature of George Matthews, Esq., Governor thereof,
in the manner and form mentioned by the said Fletcher in his said
first count. And the said Peck further saith that on the 7th of
January, 1795, at a session of the General Assembly of the said
State duly holden at Augusta within the same, according to the
provisions of the said constitution, the said General Assembly,
then and there possessing all the powers vested in the Legislature
of the said State by virtue of the said Constitution, passed the
Act above mentioned by the said Fletcher in the assignment of the
breach aforesaid, which Act is in the words following that is to
say, "An Act supplementary," &c.

															[Here was recited the whole act, which, after a long preamble,
declares the jurisdictional and territorial rights, and the fee
simple to be in the State, and then enacts that certain portions of
the vacant lands should be sold to four distinct associations of
individuals, calling themselves respectively, "The Georgia
Company," "The Georgia Mississippi Company," "The Upper Mississippi
Company," and "The Tennessee Company."]

															The tract ordered to be sold to James Gunn and Page 10 U. S. 93 others (the Georgia Company) was described as follows:

															"All that tract or parcel of land, including islands, situate,
lying and being within the following boundaries, that is to say,
beginning on the Mobile bay where the latitude 31 deg. north of the
equator, intersects the same, running thence up the said bay to the
mouth of Lake Tensaw; thence up the said Lake Tensaw to the Alabama
River, including Curry's, and all other islands therein; thence up
the said Alabama River to the junction of the Coosa and Oakfushee
Rivers; thence up the Coosa River above the big shoals to where it
intersects the latitude of thirty-four degrees north of the
equator; thence a due west course to the Mississippi River; thence
down the middle of the said river to the latitude 32 deg. 40 min.;
thence, a due east course to the Don or Tombigby River; thence down
the middle of the said river to its junction with the Alabama
River; thence down the middle of the said river to Mobile Bay;
thence down the Mobile Bay to the place of beginning."

															Upon payment of fifty thousand dollars, the Governor was
required to issue and sign a grant for the same, taking a mortgage
to secure the balance, being two hundred thousand dollars, payable
on the first of November, 1795.

															The plea then avers that all the tenements described in the
first count are included in, and parcel of, the lands in the said
Act to be sold to the said Gunn, M'Allister, and Walker and their
associates, as in the Act is mentioned. And that, by force and
virtue of the said Act, and of the Constitution aforesaid, of the
said State, the said Matthews, Governor of the said State, was
fully and legally empowered to sell and convey the tenements
aforesaid, and the soil thereof, subject as aforesaid, in fee
simple by the said patent under the seal of the said State, and
under his signature, according to the terms, limitations, and
conditions in the said Act mentioned. And all this he is ready to
verify; wherefore, &c. Page 10 U. S. 94 To this plea there was a general demurrer and joinder.

															Second plea. To the second count, the defendant,

															"protesting that the said Gunn, M'Allister, and Walker did not
make the promises and assurances to divers members of the
Legislature of the said State of Georgia, supposed by the said
Fletcher in his second count, for plea saith that, until after the
purchase by the said Greenleaf, as is mentioned in the said second
count, neither he the said defendant, nor the said Prime, nor the
said Greenleaf, nor the said Phelps, nor the said Hichborn, nor
either of them, had any notice nor knowledge that any such promises
and assurances were made by the said Gunn, M'Allister and Walker,
or either of them, to any of the members of the Legislature of the
said State of Georgia, as is supposed by the said Fletcher in his
said second count, and this he is ready to verify,"

															&c.

															To this plea also there was a general demurrer and joinder.

															The third plea to the third count was the same as the second
plea, with the addition of an averment that Greenleaf, Prince,
Phelps, Hichborn and the defendant were, until and after the
purchase by Greenleaf, on the 22d of August, 1795, and ever since
have been, citizens of some of the United States other than the
State of Georgia.

															To this plea also there was a general demurrer and joinder.

															Fourth plea. To the fourth count, the defendant pleaded that, at
the time of passing the Act of the 7th of January, 1795, the State
of Georgia was seised in fee simple of all the tenements and
territories aforesaid, and of all the soil thereof, subject only to
the extinguishment of the Indian title to part thereof, and of this
he puts himself on the country, and the plaintiff likewise. Page 10 U. S. 95 Upon the issue joined upon the fourth plea, the jury found the
following special verdict, viz.: That his late majesty, Charles the second, King of Great
Britain, by his letters patent under the great seal of Great
Britain, bearing date the thirtieth day of June, in the seventeenth
year of his reign, did grant unto Edward Earl of Clarendon, George
Duke of Albemarle, William Earl of Craven, John Lord Berkeley,
Antony Lord Ashby, Sir George Carteret, Sir John Colleton, and Sir
William Berkeley, therein called lords proprietors, and their heirs
and assigns, all that Province, territory, or tract of ground,
situate, lying and being in North America, and described as
follows: extending north and eastward as far as the north end of
Carahtuke River or gullet, upon a straight westerly line to
Wyonoahe Creek, which lies within or about the degrees of
thirty-six and thirty minutes of northern latitude, and so west in
a direct line as far as the South Seas, and south and westward as
far as the degrees of twenty-nine inclusive, northern latitude, and
so west in a direct line as far as the South Seas (which territory
was called Carolina), together with all ports, harbours, bays,
rivers, soil, land, fields, woods, lakes, and other rights and
privileges therein named; that the said lords proprietors, grantees
aforesaid, afterwards, by force of said grant, entered upon and
took possession of said territory, and established within the same
many settlements, and erected therein fortifications and posts of
defence.

															And the jury further find that the northern part of the said
tract of land, granted as aforesaid to the said lords proprietors,
was afterwards created a colony by the King of Great Britain, under
the name of North Carolina, and that the most northern part of the
thirty-fifth degree of north latitude was then and ever afterwards
the boundary and line between North Carolina and South Carolina,
and that the land, described in the plaintiff's declaration, is
situate in that part of said tract, formerly called Carolina, which
was afterwards a colony called South Carolina, as aforesaid; that
afterwards, on the twenty-sixth day of July, in the Page 10 U. S. 96 third year of the reign of his late majesty George the second,
King of Great Britain, and in the year of Our Lord one thousand,
seven hundred and twenty-nine, the heirs or legal representatives
of all the said grantees, except those of Sir George Carteret, by
deed of indenture, made between authorized agents of the said King
George the second and the heirs and representatives of the said
grantees, in conformity to an act of the parliament of said Kingdom
of Great Britain, entitled, "An act for establishing an agreement
with seven of the lords proprietors of Carolina for the surrender
of their title and interest in that Province to his majesty," for
and in consideration of the sum of twenty-two thousand five hundred
pounds of the money of Great Britain, paid to the said heirs and
representatives of the said seven of the lords proprietors, by the
said agent of the said King, sold and surrendered to his said
majesty, King George the second, all their right of soil, and other
privileges to the said granted territory; which deed of indenture
was duly executed and was enrolled in the chancery of Great
Britain, and there remains in the chapel of the rolls. That
afterwards, on the ninth day of December, one thousand, seven
hundred and twenty-nine, his said majesty, George the second,
appointed Robert Johnson, Esq. to be Governor of the Province of
South Carolina, by a commission under the great seal of the said
Kingdom of Great Britain, in which commission the said Governor
Johnson is authorized to grant lands within the said Province, but
no particular limits of the said Province is therein defined.

															And the jury further find that the said Governor of South
Carolina did exercise jurisdiction in and over the said colony of
South Carolina under the commission aforesaid, claiming to have
jurisdiction by force thereof as far southward and westward as the
southern and western bounds of the aforementioned grant of Carolina
by King Charles the second, to the said lords proprietors, but that
he was often interrupted therein and prevented therefrom in the
southern and western parts of said grants by the public enemies of
the King of Great Britain, who at divers times Page 10 U. S. 97 had actual possession of the southern and western parts
aforesaid. That afterwards the right honourable Lord Viscount
Percival, the honourable Edward Digby, the honourable George
Carpenter, James Oglethorpe, Esq. with others, petitioned the lords
of the committee of his said majesty's Privy Council for a grant of
lands in South Carolina, for the charitable purpose of transporting
necessitous persons and families from London to that Province, to
procure there a livelihood by their industry, and to be
incorporated for that purpose; that the lords of the said Privy
Council referred the said petition to the Board of Trade, so
called, in Great Britain, who, on the seventeenth day of December,
in the year of Our Lord one thousand seven hundred and thirty, made
report thereon, and therein recommended that his said majesty would
be pleased to incorporate the said petitioners as a charitable
society, by the name of "The Corporation for the purpose of
establishing charitable colonies in America, with perpetual
succession." And the said report further recommended that his said
majesty be pleased "to grant to the said petitioners and their
successors for ever, all that tract of land in his Province of
South Carolina, lying between the rivers Savannah and Alatamaha, to
be bounded by the most navigable and largest branches of the
Savannah, and the most southerly branch of the Alatamaha." And that
they should be separated from the Province of South Carolina, and
be made a colony independent thereof, save only in the command of
their militia. That afterwards, on the twenty-second day of
December, one thousand seven hundred and thirty-one, the said board
of trade reported further to the said lords of the Privy Council,
and recommended that the western boundary of the new charter of the
colony, to be established in South Carolina, should extend as far
as that described in the ancient patents granted by King Charles
the Second to the late lords proprietors of Carolina, whereby that
Province was to extend westward in a direct line as far as the
South Seas. That afterwards, on the ninth day of June in the year
of Our Lord one thousand seven hundred and thirty-two, his said
majesty, George the Page 10 U. S. 98 Second, by his letters patent, or royal charter, under the great
seal of the said Kingdom of Great Britain, did incorporate the said
Lord Viscount Percival and others, the petitioners aforesaid, into
a body politic and corporate, by the name of "The trustees for
establishing the Colony of Georgia, in America, with perpetual
succession;" and did, by the same letters patent, give and grant in
free and common socage, and not in capite, to the said corporation
and their successors, seven undivided parts (the whole into eight
equal parts to be divided) of all those lands, countries and
territories, situate, lying and being in that part of South
Carolina in America which lies from a northern stream of a river
there commonly called the Savannah, all along the seacoast to the
southward unto the most southern branch of a certain other great
water or river, called the Alatamaha, and westward from the heads
of the said rivers respectively in direct lines to the South Seas,
and all the lands lying within said boundaries, with the islands in
the sea lying opposite to the eastern coast of the same, together
with all the soils, grounds, havens, bays, mines, minerals, woods,
rivers, waters, fishings, jurisdictions, franchises, privileges,
and preeminences within the said territories. That afterwards, in
the same year, the right honourable John Lord Carteret, Baron of
Hawnes, in the county of Bedford, then Earl Granville, and heir of
the late Sir George Carteret, one of the grantees and lords
proprietors aforesaid, by deed of indenture between him and the
said trustees for establishing the Colony of Georgia in America,
for valuable consideration therein mentioned, did give, grant,
bargain and sell unto the said trustees for establishing the Colony
of Georgia aforesaid, and their successors, all his one undivided
eighth part of or belonging to the said John Lord Carteret (the
whole into eight equal parts to be divided) of, in, and to the
aforesaid territory, seven undivided eight parts of which had been
before granted by his said majesty to said trustees.

															And the jury further find that one-eighth part of the said
territory, granted to the said lords proprietors, and called
Carolina as aforesaid, which eighth part belonged Page 10 U. S. 99 to Sir George Carteret, and was not surrendered as aforesaid,
was afterwards divided and set off in severalty to the heirs of the
said Sir George Carteret in that part of said territory which was
afterwards made a colony by the name of North Carolina. That
afterwards, in the same year, the said James Oglethorpe, Esq. one
of the said corporation, for and in the name of and as agent to the
said corporation, with a large number of other persons under his
authority and control, took possession of said territory, granted
as aforesaid to the said corporation, made a treaty with some of
the native Indians within said territory, in which, for and in
behalf of said corporation, he made purchases of said Indians of
their native rights to parts of said territory, and erected forts
in several places to keep up marks of possession. That afterwards,
on the sixth day of September, in the year last mentioned, on the
application of said corporation to the said Board of Trade, they
the said Board of Trade, in the name of his said majesty, sent
instructions to said Robert Johnson, then Governor of South
Carolina, thereby willing and requiring him to give all due
countenance and encouragement for the settling of the said Colony
of Georgia, by being aiding and assisting to any settlers therein,
and further requiring him to cause to be registered the aforesaid
charter of the Colony of Georgia, within the said Province of South
Carolina, and the same to be entered of record by the proper
officer of the said Province of South Carolina.

															And the jury further find that the Governor of South Carolina,
after the granting the said charter of the Colony of Georgia, did
exercise jurisdiction south of the southern limits of said Colony
of Georgia, claiming the same to be within the limits of his
government; and particularly that he had the superintendency and
control of a military post there, and did make divers grants of
land there, which lands have ever since been holden under his said
grants. That afterwards, in the year of Our Lord one thousand seven
hundred and fifty-two, by deed of indenture made between His said
Majesty, George the Second, of the one part, and the said trustees
for establishing the Page 10 U. S. 100 colony in America, of the other part, they the said trustees,
for divers valuable considerations therein expressed, did, for
themselves and their successors, grant, surrender, and yield up to
His said Majesty, George the Second, his heirs and successors,
their said letters patent, and their charter of corporation, and
all right, title and authority, to be or continue a corporate body,
and all their powers of government, and all other powers,
jurisdictions, franchises, preeminences and privileges therein, or
thereby granted or conveyed to them, and did also grant and convey
to His said Majesty, George the Second, his heirs and successors,
all the said lands, countries, territories and premises, as well
the said one eighth part thereof granted by the said John Lord
Carteret to them as aforesaid, as also the said seven eighth parts
thereof, granted as aforesaid by His said Majesty's letters patent
or charter as aforesaid, together with all the soils, grounds,
havens, ports, bays, mines, woods, rivers, waters, fishings,
jurisdictions, franchises, privileges and preeminences, within said
territories, with all their right, title, interest, claim or demand
whatsoever in and to the premises; and which grant and surrender
aforesaid was then accepted by His said Majesty for himself and his
successors; and said indenture was duly executed on the part of
said trustees, with the privity and by the direction of the common
council of the said corporation by affixing the common seal of said
corporation thereunto, and on the part of His said Majesty by
causing the great seal of Great Britain to be thereunto affixed.
That afterwards, on the sixth day of August, one thousand seven
hundred and fifty-four, His said Majesty, George the Second, by his
royal commission of that date under the great seal of Great
Britain, constituted and appointed John Reynolds, Esq. to be
Captain General and Commander in Chief in and over said Colony of
Georgia in America, with the following boundaries, viz., lying from the most northerly stream of a river there commonly
called Savannah, all along the sea coast to the southward unto the
most southern stream of a certain other great water or river called
the Alatahama, and westward from the heads of the said rivers
respectively, in straight lines to the South Seas, and all the
space, circuit and precinct of Page 10 U. S. 101 land lying within the said boundaries, with the islands in the
sea lying opposite to the eastern coast of said lands within twenty
leagues of the same. That afterwards, on the tenth day of February,
in the year of Our Lord one thousand seven hundred and sixty-three,
a definitive treaty of peace was concluded at Paris, between his
Catholic Majesty, the King of Spain, and his Majesty, George the
third, King of Great Britain, by the twentieth article of which
treaty, his said Catholic Majesty did cede and guaranty, in full
right to his Britannic Majesty, Florida, with fort St. Augustin,
and the bay of Pensacola, as well as all that Spain possessed on
the continent of North America, to the east or to the south east of
the river Mississippi, and in general all that depended on the said
countries and island, with the sovereignty, property, possession,
and all rights acquired by treaties or otherwise, which the
Catholic King and the Crown of Spain had till then over the said
countries, lands, places, and their inhabitants; so that the
Catholic King did cede and make over the whole to the said King and
said Crown of Great Britain, and that in the most ample manner and
form.

															That afterwards, on the seventh day of October, in the year of
Our Lord one thousand seven hundred and sixty-three, His said
Majesty, George the Third, King of Great Britain, by and with the
advice of his Privy Council, did issue his royal proclamation,
therein publishing and declaring that he, the said King of Great
Britain, had, with the advice of his said Privy Council, granted
his letters patent, under the great seal of Great Britain, to erect
within the countries and islands ceded and confirmed to him by the
said treaty, four distinct and separate governments, styled and
called by the names of Quebec, East Florida, West Florida and
Grenada; in which proclamation the said government of West Florida
is described as follows, viz., bounded to the southward by
the Gulf of Mexico, including all islands within six leagues of the
coast from the river Apalachicola to lake Pontchartrain, to the
westward by the said lake, the lake Maurepas, and the River
Mississippi; to the northward by Page 10 U. S. 102 a line drawn due east from that part of the River Mississippi
which lies in thirty one-degrees of north latitude, to the river
Apalachicola or Catahouchee; and to the eastward by the said river.
And in the same proclamation the said government of East Florida is
described as follows, viz., bounded to the westward by the
Gulf of Mexico and the Apalachicola river; to the northward by a
line drawn from that part of the said river where the Catahouchee
and Flint Rivers meet, to the source of St. Mary's River, and by
the course of the said river to the Atlantic Ocean; and to the east
and south by the Atlantic Ocean and the Gulf of Florida, including
all islands within six leagues of the seacoast. And in and by the
same proclamation, all lands lying between the Rivers Alatamaha and
St. Mary's were declared to be annexed to the said Province of
Georgia; and that, in and by the same proclamation, it was further
declared by the said King as follows, viz., "That it is our royal will and pleasure for the present, as
aforesaid, to reserve under our sovereignty, protection and
dominion for the use of the said Indians all the land and
territories not included within the limits of our said three new
governments, or within the limits of the territory granted to the
Hudson's Bay Company, as also all the land and territories lying to
the westward of the sources of the rivers which fall into the sea
from the west and north-west as aforesaid; and we do hereby
strictly forbid, on pain of our displeasure, all our loving
subjects from making any purchases or settlements whatever, or
taking possession of any of the lands above reserved, without our
special leave and license for that purpose first obtained."

															And the jury find that the land described in the plaintiff's
declaration did lay to the westward of the sources of the rivers
which fall into the sea from the west and northwest as aforesaid.
That afterwards, on the twenty-first day of November, in the year
of Our Lord one thousand seven hundred and sixty-three, and in the
fourth year of the reign of said King George the Third, he the said
King, by his royal commission under the great seal of Great
Britain, did constitute and appoint Page 10 U. S. 103 George Johnstone, Esq. Captain General and Governor in Chief
over the said Province of West Florida in America; in which
commission the said Province was described in the same words of
limitation and extent, as in said proclamation is before set down.
That afterwards, on the twentieth day of January, in the year of
Our Lord one thousand seven hundred and sixty-four, the said King
of Great Britain, by his commission under the great seal of Great
Britain, did constitute and appoint James Wright, Esq. to be the
Captain General and Governor in chief in and over the Colony of
Georgia, by the following bounds, viz., bounded on the
north by the most northern stream of a river there commonly called
Savannah, as far as the heads of the said river; and from thence
westward as far as our territories extend; on the east, by the sea
coast, from the said river Savannah to the most southern stream of
a certain other river, called St. Mary; (including all islands
within twenty leagues of the coast lying between the said river
Savannah and St. Mary, as far as the head thereof;) and from thence
westward as far as our territories extend by the north boundary
line of our Provinces of East and West Florida.

															That afterwards, from the year one thousand seven hundred and
seventy-five to the year one thousand seven hundred and
eighty-three, an open war existed between the colonies of New
Hampshire, Massachusetts Bay, Rhode Island and Providence
Plantations, Connecticut, New York, New Jersey, Pennsylvania,
Delaware, Maryland, Virginia, North Carolina, South Carolina and
Georgia, called the United States, on the one part, and His said
Majesty, George the Third, King of Great Britain, on the other
part. And on the third day of September, in the year of Our Lord
one thousand seven hundred and eighty-three, a definitive treaty of
peace was signed and concluded at Paris by and between certain
authorized commissioners on the part of the said belligerent
powers, which was afterwards duly ratified and confirmed by the
said two respective powers, by the first article of which treaty,
the said King George the Third, by the name of his Britannic
Majesty, acknowledged the aforesaid United Page 10 U. S. 104 States to be free, sovereign and independent States; that he
treated with them as such, and for himself, his heirs and
successors, relinquishes all claim to the government, propriety and
territorial rights of the same, and every part thereof; and by the
second article of said treaty, the western boundary of the United
States is a line drawn along the middle of the River Mississippi,
until it shall intersect the northernmost part of the thirty-first
degree of north latitude; and the southern boundary is a line drawn
due east from the determination of the said line, in the latitude
of thirty-one degrees north of the equator, to the middle of the
River Apalachicola or Catahouchee; thence along the middle thereof
to its junction with the Flint River; thence straight to the head
of St. Mary's River; and thence down along the middle of St. Mary's
River to the Atlantic Ocean.

															And the jury further find that in the year of Our Lord one
thousand seven hundred and eighty-two, the Congress of the United
States did instruct the said commissioners, authorized on the part
of the United States to negotiate and conclude the treaty aforesaid
that they should claim in this negotiation, respecting the
boundaries of the United States that the most northern part of the
thirty-first degree of north latitude should be agreed to be the
southern boundary of the United States, on the ground that that was
the southern boundary of the Colony of Georgia; and that the River
Mississippi should be agreed to be the western boundary of the
United States, on the ground that the Colony of Georgia and other
colonies, now States of the United States, were bounded westward by
that river; and that the commissioners on the part of the United
States did, in said negotiation, claim the same accordingly, and
that, on those grounds, the said southern and western boundaries of
the United States were agreed to by the commissioners on the part
of the King of Great Britain. That afterwards, in the same year,
the Legislature of the State of Georgia passed an act declaring her
right, and proclaiming her title to all the lands lying within her
boundaries to the River Mississippi. And in the year of Our Lord,
one thousand seven hundred Page 10 U. S. 105 and eighty five, the Legislature of the said State of Georgia
established a county, by the name of Bourbon, on the Mississippi,
and appointed civil officers for said county, which lies within the
boundaries now denominated the Mississippi territory; that
thereupon a dispute arose between the State of South Carolina and
the State of Georgia concerning their respective boundaries, the
said States separately claiming the same territory; and the said
State of South Carolina, on the first day of June, in the year of
Our Lord one thousand seven hundred and eighty-five, petitioned the
Congress of the United States for a hearing and determination of
the differences and disputes subsisting between them and the State
of Georgia, agreeably to the ninth article of the then
Confederation and perpetual Union between the United States of
America; that the said Congress of the United States did thereupon
on the same day resolve that the second Monday in May then next
following should be assigned for the appearance of the said States
of South Carolina and Georgia, by their lawful agents, and did then
and there give notice thereof to the said State of Georgia, by
serving the Legislature of said State with an attested copy of said
petition of the State of South Carolina, and said resolve of
Congress. That afterwards, on the eighth day of May, in the year of
Our Lord one thousand seven hundred and eighty-six, by the joint
consent of the agents of said States of South Carolina and Georgia,
the Congress resolved that further day be given for the said
hearing, and assigned the fifteenth day of the same month for that
purpose. That afterwards, on the eighteenth day of May aforesaid,
the said Congress resolved that further day be given for the said
hearing, and appointed the first Monday in September, then next
ensuing, for that purpose. That afterwards, on the first day of
September then next ensuing, authorized agents from the States of
Carolina and Georgia attended in pursuance of the order of Congress
aforesaid, and produced their credentials, which were read in
Congress, and there recorded, together with the acts of their
respective legislatures, which acts and credentials authorized the
said agents to settle and compromise all the differences Page 10 U. S. 106 and disputes aforesaid, as well as to appear and represent the
said States respectively before any tribunal that might be created
by Congress for that purpose, agreeably to the said ninth article
of the Confederation. And in conformity to the powers aforesaid,
the said commissioners of both the said States of South Carolina
and Georgia, afterwards, on the 28th day of April, in the year of
Our Lord one thousand seven hundred and eighty-seven, met at
Beaufort, in the State of South Carolina, and then and there
entered into, signed, and concluded a convention between the States
of South Carolina and Georgia aforesaid. By the first article of
which convention it was mutually agreed between the said States
that the most northern branch or stream of the River Savannah from
the sea or mouth of such stream to the fork or confluence of the
Rivers then called Tugaloo and Keowee; and from thence the most
northern branch or stream of said River Tugaloo, till it intersects
the northern boundary line of South Carolina, if the said branch or
stream of Tugaloo extends so far north, reserving all the islands
in the said Rivers Savannah and Tugaloo, to Georgia; but if the
head, spring, or source of any branch or stream of the said River
Tugaloo does not extend to the north boundary line of South
Carolina, then a west course to the Mississippi, to be drawn from
the head, spring, or source of the said branch or stream of Tugaloo
River, which extends to the highest northern latitude, shall
forever thereafter form the separation, limit, and boundary between
the States of South Carolina and Georgia. And by the third article
of the convention aforesaid, it was agreed by the said States of
South Carolina and Georgia that the said State of South Carolina
should not thereafter claim any lands to the eastward, southward,
southeastward, or west of the said boundary above established; and
that the said State of South Carolina did relinquish and cede to
the said State of Georgia all the right, title, and claim which the
said State of South Carolina had to the government, sovereignty,
and jurisdiction in and over the same, and also the right and
preemption of soil from the native Indians, and all the estate,
property, and claim which the said State of South Carolina had in
or to the said lands. Page 10 U. S. 107 And the jury further find that the land described in the
plaintiff's declaration is situate southwest of the boundary line
last aforesaid; and that the same land lies within the limits of
the territory granted to the said lords proprietors of Carolina, by
King Charles the second, as aforesaid, and within the bounds of the
territory agreed to belong and ceded to the King of Great Britain,
by the said treaty of peace made in seventeen hundred and
sixty-three, as aforesaid; and within the bounds of the United
States, as agreed and settled by the treaty of peace in seventeen
hundred and eighty-three, as aforesaid; and north of a line drawn
due east from the mouth of the said River Yazoos, where it unites
with the Mississippi aforesaid. That afterwards, on the ninth day
of August, in the year of Our Lord one thousand seven hundred and
eighty-seven, the delegates of said State of South Carolina in
Congress moved that the said convention, made as aforesaid, be
ratified and conformed, and that the lines and limits therein
specified be thereafter taken and received as the boundaries
between the said States of South Carolina and Georgia; which motion
was by the unanimous vote of Congress committed, and the same
convention was thereupon entered of record on the journals of
Congress; and on the same day, John Kean and Daniel Huger, by
virtue of authority given to them by the Legislature of said State
of South Carolina, did execute a deed of cession on the part of
said State of South Carolina, by which they ceded and conveyed to
the United States, in Congress assembled, for the benefit of all
the said States, all their right and title to that territory and
tract of land included within the River Mississippi, and a line
beginning at that part of the said River which is intersected by
the southern boundary line of the State of North Carolina; and
continuing along the said boundary line, until it intersects the
ridge or chain of mountains which divides the eastern from the
western waters; then to be continued along the top of the said
ridge of mountains, until it intersects a line to be drawn due west
from the head of the southern branch of the Tugaloo River to the
said mountains, and thence to run a due west course to the River
Mississippi; which deed of cession was Page 10 U. S. 108 thereupon received and entered on the journals of Congress, and
accepted by them.

															The jury further find that the Congress of the United States
did, on the sixth day of September, in the year of Our Lord one
thousand, seven hundred and eighty, recommend to the several States
in the Union having claims to western territory to make a liberal
cession to the United States of a portion of their respective
claims for the common benefit of the Union. That afterwards, on the
ninth day of August, in the year of Our Lord one thousand seven
hundred and eighty-six, the said Congress resolved that, whereas
the States of Massachusetts, New York, Connecticut, and Virginia
had, in consequence of the recommendation of Congress on the sixth
day of September aforesaid, made cessions of their claims to
western territory to the United States in Congress assembled for
the use of the United States, the said subject be again presented
to the view of the States of N. Carolina, S. Carolina and Georgia,
who had not complied with so reasonable a proposition, and that
they be once more solicited to consider with candour and liberality
the expectations of their sister States, and the earnest and
repeated applications made to them by Congress on this subject.
That afterwards, on the twentieth day of October, one thousand
seven hundred and eighty-seven, the Congress of the United States
passed the following resolve, viz., that it be and hereby
is represented to the States of North-Carolina and Georgia that the
lands, which have been ceded by the other States in compliance with
the recommendation of this body, are now selling in large
quantities for public securities; that the deeds of cession from
the different States have been made without annexing an express
condition that they should not operate till the other States, under
like circumstances, made similar cessions; and that Congress have
such faith in the justice and magnanimity of the States of North
Carolina and Georgia that they only think it necessary to call
their attention to these circumstances, not doubting but, upon
consideration of the subject, they will fell those obligations
which will induce similar cessions, and justify that confidence
which has been Page 10 U. S. 109 placed in them. That afterwards, on the first day of February,
one thousand seven hundred and eighty-eight, and Legislature of
said State of Georgia, then duly convened, passed an act for ceding
part of the territorial claims of said State to the United States,
by which act the State of Georgia authorized her delegates in
Congress to convey to the United States the territorial claims of
said State of Georgia to a certain tract of country bounded as
follows, to-wit: beginning at the middle of the River Catahouchee
or Apalachicola, where it is intersected by the thirty-first degree
of north latitude, and from thence due north one hundred and forty
miles, thence due west to the River Mississippi; thence down the
middle of the said River to where it intersects the thirty-first
degree of north latitude, and along the said degree to the place of
beginning; annexing the provisions and conditions following,
to-wit: that the United States in Congress assembled shall guaranty
to the citizens of said territory a republican form of government,
subject only to such changes as may take place in the Federal
Constitution of the United States; secondly that the navigation of
all the waters included in the said cession shall be equally free
to all the citizens of the United States; nor shall any tonnage on
vessels, or any duties whatever, be laid on any goods, wares, or
merchandises that pass up or down the said waters, unless for the
use and benefit of the United States. Thirdly that the sum of one
hundred and and seventy-one thousand and twenty-eight dollars,
forty-five cents, which has been expended in quieting the minds of
the Indians, and resisting their hostilities, shall be allowed as a
charge against the United States, and be admitted in payment of the
specie requisition of that State's quotas that have been or may be
required by the United States. Fourthly, that in all cases where
the State may require defence, the expenses arising thereon shall
be allowed as a charge against the United States, agreeably to the
Articles of Confederation. Fifthly that Congress shall guaranty and
secure all the remaining territorial rights of the State, as
pointed out and expressed by the definitive treaty of peace between
the United States and Great Britain, the convention between the
said Page 10 U. S. 110 State and the State of South Carolina, entered into the
twenty-eighth day of April, in the year of Our Lord one thousand
seven hundred and eighty-seven, and the clause of an act of the
said State of Georgia, describing the boundaries thereof, passed
the seventeenth day of February, in the year one thousand seven
hundred and eighty-three, which act of the said State of Georgia,
with said conditions annexed, was by the delegates of said State in
Congress presented to the said Congress, and the same was, after
being read, committed to a committee of Congress; who, on the
fifteenth day of July, in the said year one thousand seven hundred
and eighty-eight, made report thereon to Congress, as follows,
to-wit:

															"The committee, having fully considered the subject referred to
them, are of opinion that the cession offered by the State of
Georgia cannot be accepted on the terms proposed; first, because it
appears highly probable that, on running the boundary line between
that State and the adjoining State or States, a claim to a large
tract of country extending to the Mississippi, and lying between
the tract proposed to be ceded and that lately ceded by South
Carolina will be retained by the said State of Georgia; and
therefore the land which the State now offers to cede must be too
far removed from the other lands hitherto ceded to the Union to be
of any immediate advantages to it. Secondly, because there appears
to be due from the State of Georgia, on specie requisitions, but a
small part of the sum mentioned in the third proviso or condition
before recited; and it is improper in this case to allow a charge
against the specie requisitions of Congress which may hereafter be
made, especially as the said State stands charged to the United
States for very considerable sums of money loaned. And, thirdly,
because the fifth proviso or condition before recited contains a
special guaranty of territorial rights, and such a guaranty has not
been made by Congress to any State, and which, considering the
spirit and meaning of the Confederation, must be unnecessary and
improper. But the committee are of opinion that the first, second,
and fourth provisions, before recited, and also the third, with
some variations, may be admitted; and that, should the said State
extend the bounds of her cession, Page 10 U. S. 111 and vary the terms thereof as herein after mentioned, Congress
may accept the same. Whereupon they submit the following
resolutions: That the cession of claims to western territory,
offered by the State of Georgia, cannot be accepted on the terms
contained in her act passed the first of February last. That in
case the said State shall authorize her delegates in Congress to
make a cession of all her territorial claims to lands west of the
River Apalachicola, or west of a meridian line running through or
near the point where that River intersects the thirty-first degree
of north latitude, and shall omit the last proviso in her said act,
and shall so far vary the proviso respecting the sum of one hundred
and seventy-one thousand four hundred and twenty-eight dollars, and
forty-five cents, expended in quieting and resisting the Indians as
that the said State shall have credit in the specie requisitions of
Congress, to the amount of her specie quotas on the past
requisitions, and for the residue, in her account with the United
States for moneys loaned, Congress will accept the cession."

															Which report being read, Congress resolved that Congress agree
to the said report.

															The jury further find that in the year of Our Lord one thousand
seven hundred and ninety-three, Thomas Jefferson, Esq. then
secretary of State for the United States, made a report to the then
President of the United States which was intended to serve as a
basis of instructions to the commissioners of the United States for
settling the points which were then in dispute between the King of
Spain and the government of the United States, one of which points
in dispute was the just boundaries between West Florida and the
southern line of the United States. On this point, the said
secretary of State, in his report aforesaid, expresses himself as
follows, to-wit:

															"As to boundary that between Georgia and West Florida is the
only one which needs any explanation. It (that is, the court of
Spain) sets up a claim to possessions within the State of Georgia,
founded on her (Spain) having rescued them by force from the
British during the late war. The following view of that subject
seems to admit of no reply. The several States now composing the
United Page 10 U. S. 112 States of America were, from their first establishment, separate
and distinct societies, dependent on no other society of men
whatever. They continued at the head of their respective
governments the Executive Magistrate who presided over the one they
had left, and thereby secured in effect a constant amity with the
nation. In this stage of their government their several boundaries
were fixed, and particularly the southern boundary of Georgia, the
only one now in question, was established at the thirty first
degree of latitude, from the Apalachicola westwardly. The southern
limits of Georgia depend chiefly on, first, the charter of South
Carolina, &c. Secondly, on the proclamation of the British
King, in one thousand seven hundred and sixty-three, establishing
the boundary between Georgia and Florida, to begin on the
Mississippi, in thirty-one degrees of north latitude, and running
eastwardly to the Apalachicola, &c. That afterwards, on the
seventh day of December, of the same year, the commissioners of the
United States for settling the aforesaid disputes, in their
communications with those of the King of Spain, express themselves
as follows, to-wit:"

															"In this stage of their (meaning the United States) government,
the several boundaries were fixed, and particularly the southern
boundary of Georgia, the one now brought into question by Spain.
This boundary was fixed by the proclamation of the King of Great
Britain, their chief magistrate, in the year one thousand seven
hundred and sixty-three, at a time when to other power pretended
any claim whatever to any part of the country through which it run.
The boundary of Georgia was thus established: to begin in the
Mississippi, in latitude thirty-one north, and running eastward to
the Apalachicola,"

															&c. From what has been said, it results, first that the
boundary of Georgia, now forming the southern limits of the United
States, was lawfully established in the year seventeen hundred and
sixty-three. Secondly, that it has been confirmed by the only power
that could at any time have pretensions to contest it.

															That afterwards, on the tenth day of August, in the year 1795,
Thomas Pinckney, Esq. minister plenipotentiary Page 10 U. S. 113 of the United States at the Court of Spain, in a communication
to the Prince of Peace, Prime Minister of Spain, agreeably to his
instructions from the President of the United States on the subject
of said boundaries, expresses himself as follows, to-wit:

															"Thirty-two years have elapsed since all the country on the left
or eastern bank of the Mississippi, being under the legitimate
jurisdiction of the King of England that sovereign thought proper
to regulate with precision the limits of Georgia and the two
Floridas, which was done by his solemn proclamation, published in
the usual form, by which he established between them precisely the
same limits that, near twenty years after, he declared to be the
southern limits of the United States, by the treaty which the same
King of England concluded with them in the month of November,
seventeen hundred and eighty two."

															That afterwards, on the 27th day of October, in the year
seventeen hundred and ninety-five, a treaty of friendship, limits
and navigation was concluded between the United States and his
Catholic Majesty the King of Spain, in the second article of which
treaty it is agreed that the southern boundary of the United
States, which divides their territory from the Spanish colonies of
East and West Florida, shall be designated by a line beginning on
the River Mississippi, at the northernmost part of the thirty-first
degree of north latitude, which from thence shall be drawn due east
to the middle of the River Apalachicola or Catahouchee, thence
along the middle thereof to its junction with the Flint, thence
straight to the head of St. Mary's River, and thence down the
middle thereof to the Atlantic Ocean.

															But whether, upon the whole matter, the State of Georgia, at the
time of passing the act aforesaid, entitled as aforesaid, as
mentioned by the plaintiff, in his assignment of the breach in the
fourth count of his declaration, was seised in fee simple of all
the territories and tenements aforesaid, and of all the soil
thereof, subject only to the extinguishment of the Indian title Page 10 U. S. 114 to part thereof, the jury are ignorant, and pray the advisement
of the court thereon; and if the court are of opinion that the said
State of Georgia was so seised at the time aforesaid, then the jury
find that the said State of Georgia, at the time of passing the act
aforesaid, entitled as aforesaid, as mentioned by the said
Fletcher, in his assignment of the breach in the fourth count of
his declaration, was seised in fee simple of all the territories
and tenements aforesaid, and of all the soil thereof, subject only
to the extinguishment of the Indian title to part thereof, and the
jury thereupon find that the said Peck his covenant aforesaid, the
breach whereof is assigned in the plaintiff's fourth count
mentioned, hath not broken, but hath kept the same.

															But if the court are of opinion that the said State of Georgia
was not so seised at the time aforesaid, then the jury find that
the said State of Georgia, at the time of passing the act
aforesaid, entitled as aforesaid, as mentioned by the said
Fletcher, in his assignment of the breach in the fourth count of
his declaration, was not seised of all the territories and
tenements aforesaid, and of all the soil thereof, subject only to
the extinguishment of the Indian title to part thereof, and the
jury thereupon find that the said Peck his covenant aforesaid, the
breach whereof is assigned in the plaintiff's fourth count
mentioned, hath not kept, but broken the same, and assess damages
for the plaintiff, for the breach thereof, in the sum of three
thousand dollars, and costs of suit.

															Whereupon it was considered and adjudged by the court below
that, on the issues on the three first counts, the several pleas
are good and sufficient, and that the demurrer thereto be
overruled; and on the last issue, on which there is a special
verdict that the State of Georgia was seised, as alleged by the
defendant, and that the defendant recover his costs. Page 10 U. S. 125 Mr. Chief Justice MARSHALL delivered the opinion of the
Court.

															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, (Georgia), at the time
of the passing of the act of sale aforesaid, had good right to sell
and dispose of the same, in manner pointed out by the said
act."

															The breach of this covenant is assigned in these words:

															"now the said Fletcher saith that, at the time when the said act
of the Legislature 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. " Page 10 U. S. 126 The plea sets forth the Constitution of the State of Georgia,
and avers that the lands lay within that State. It then sets forth
the act of the legislature, and avers that the lands, described in
the declaration, are included within those to be sold by the said
act, and that the Governor was legally empowered to sell and convey
the premises.

															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 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 Page 10 U. S. 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 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, as has been
stated.

															Mr. Chief Justice MARSHALL delivered the opinion of the
Court.

															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 Page 10 U. S. 128 in the second covenant contained in the deed. The covenant
is

															"that the Legislature of the State of Georgia, at the time of
passing the act of sale aforesaid, had good right to sell and
dispose of the same in manner pointed out by the said act."

															The breach assigned is that the Legislature had no power to
sell.

															The plea in bar sets forth the Constitution of the State of
Georgia, and avers that the lands sold by the defendant to the
plaintiff were within that State. It then sets forth the granting
act, and avers the power of the Legislature to sell and dispose of
the premises as pointed out by the act.

															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 Georgia prohibit the Legislature to
dispose of the lands which were the subject of this contract in the
manner stipulated by the contract?

															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 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 Georgia, adopted in the Page 10 U. S. 129 year 1789, the court can perceive no restriction on the
legislative power which inhibits the passage of the Act of 1795.
The court cannot say that, in passing that Act, the Legislature has
transcended its powers and violated the Constitution. In overruling
the demurrer, therefore, to the first plea, the Circuit Court
committed no error.

															The third covenant is that all the title which the State of
Georgia ever had in the premises had been legally conveyed to John
Peck, the grantor.

															The second count assigns, in substance, as a breach of this
covenant that the original grantees from the State of Georgia
promised 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 Georgia did not pass to the said Peck, &c.

															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 joined in
the demurrer. Page 10 U. S. 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 required
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 much be applied to 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?

															If 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 Georgia to annul the
contract, nor does it appear to the Court by Page 10 U. S. 131 this count that the State of Georgia is dissatisfied with the
sale that has been made. The case, as made out in the pleadings, is
simply this. One individual who holds lands in the State of
Georgia, under a deed covenanting that the title of Georgia was in
the grantor, brings an action of covenant upon this deed, and
assigns, as a breach that some of the members of the Legislature
were induced to vote in favour of the law, which constituted the
contract, by being promised an interest in it, and that therefore
the act is a mere nullity.

															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 fourth 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 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 Page 10 U. S. 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 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. 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
Georgia has involved them in the fate of the first parties to the
transaction, and, if the act be valid, has annihilated their rights
also.

															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 cases to be
obligatory.

															It is, however, to be recollected that the people can Page 10 U. S. 133 act only by these agents, and that, while within the 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 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 Page 10 U. S. 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 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 devest 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 Georgia, or of its acts. Far from it. The question is a general
question, and is treated as one. For although such powerful
objections to a legislative grant as are alleged against this may
not again exist, yet the principle on which alone this rescinding
act is to be supported may be applied to every case to which it
shall be the will of any legislature to apply it. The principle is
this: that a legislature may, by its own act, devest the vested
estate of any man whatever, for reasons which shall, by itself, be
deemed sufficient.

															In this case the Legislature may have had ample 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 transferrable, and those who purchased parts of it were not
stained by that Page 10 U. S. 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 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 estate, 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
devest 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.

															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? Page 10 U. S. 136 To the Legislature all legislative power is granted, but the
question whether the act 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 Georgia a single sovereign power. But Georgia cannot
be viewed as a single, unconnected, sovereign power, on whose
legislature no other restrictions are imposed than may be found in
its own Constitution. She is a part of a large empire; she is a
member of the American Union; and that Union has a Constitution the
supremacy of which all acknowledge, and which imposes limits to the
legislatures of the several States which none claim a right to
pass. The Constitution of the United States declares that no State
shall pass any bill of attainder, ex post facto law, or
law impairing the obligation of contracts.

															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 Page 10 U. S. 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 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 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 Page 10 U. S. 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 United States contains what
may be deemed a bill of rights for the people of each State.

															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 favour of the right to
impair the obligation 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. Page 10 U. S. 139 This cannot be effected in the form of an ex post facto law or bill of attainder; why, then, is it allowable in the form of
a law annulling the original grant?

															The argument in favour 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 ingrafted in that
instrument, though no longer a part of it. The Constitution, as
passed, gave the courts of the United States jurisdiction in suits
brought against individual States. A State, then, which violated
its own contract was suable in the courts of the United States for
that violation. Would it have been a defence in such a suit to say
that the State had passed a law absolving 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 general principles
of our political institutions nor by the words of the Constitution
from impairing the obligation of its own contracts, such a defence
would be a valid one. This feature is no longer found in the
Constitution, but it aids in the construction of those clauses with
which it was 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 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 third plea, therefore, there
is no error.

															The first covenant in the deed is that the State of Georgia, at
the time of the act of the Legislature thereof entitled as
aforesaid, was legally seised in fee of the soil thereof subject
only to the extinguishment of part of the Indian title thereon. Page 10 U. S. 140 The fourth count assigns, as a breach of this covenant that the
right to the soil was in the United States, and not in Georgia.

															To this Court, the defendant pleads that the State of Georgia
was seised, 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 Second to the
Earl of Clarondon and others, comprehending the whole country from
36 deg. 30 min. north 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 South Carolina. That seven of the eight
proprietors of the Carolinas surrendered to George II in the year
1729, who appointed a Governor of South Carolina. That, in 1732,
George II granted to the Lord Viscount Percival and others seven
eighths 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
Georgia. That the Governor of South Carolina continued to exercise
jurisdiction south of Georgia. 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 Page 10 U. S. 141 Britain and Spain in 1763 in which the latter ceded to the
former Florida, with Fort St. Augustin and the bay of Pensacola.
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 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 acknowledging them
as sovereign and independent States. That in April, 1787, a
convention was entered into between the States of South Carolina
and Georgia settling the boundary line between them.

															The jury afterwards describe the situation of the lands
mentioned in the plaintiff's declaration in such manner that their
lying within the limits of Georgia, as defined in the proclamation
of 1763, in the treaty of peace, and in the convention between that
State and South Carolina, has not been questioned.

															The counsel for the plaintiff rest their argument on a single
proposition. They contend that the reservation for the use of the
Indians, contained in the proclamation Page 10 U. S. 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 United States, and not for the benefit of
any particular State.

															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, 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 were given to
the Governors of Georgia entirely remove the doubt.

															The question whether the vacant lands within the United States
became a joint property or belonged to the separate States was a
momentous question which at one time threatened to shake the
American Confederacy to its foundation. This important and
dangerous contest has been compromised, and the compromise is not
now to be disturbed.

															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 Georgia, and that the State of Georgia had
power to grant it.

															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 is of opinion that the nature of the
Indian title, which is certainly to be respected Page 10 U. S. 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.

															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 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. Page 10 U. 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
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. 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," Page 10 U. S. 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 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 favour of private rights is 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 opinion of the Court
is relative to the judgment which ought to be given on the first
count. Upon that count, we are Page 10 U. S. 146 called upon substantially to decide

															"that the State of Georgia, at the time of passing the act of
cession, was legally seised in fee of the soil [then ceded],
subject only to the extinguishment of part of the Indian
title."

															That is that the State of Georgia was seised of an estate in fee
simple in the lands in question, subject to another estate, we know
not what, nor whether it may not swallow up the whole estate
decided to exist in Georgia. It would seem that the mere vagueness
and uncertainty of this covenant would be a sufficient objection to
deciding in favour of it, but to me it appears that the facts in
the case are sufficient to support the opinion that the State of
Georgia had not a fee simple in the land in question.

															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 Georgia had in these lands,
"that the State was seised thereof, in fee simple."

															To me, it appears that the interest of Georgia in that land
amounted to nothing more than a mere possessibility, and that her
conveyance thereof could operate legally only as a covenant to
convey or to stand seised to a use.

															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 Georgia. We
legislate upon the conduct of strangers or citizens within their
limits, but innumerable treaties formed with them Page 10 U. S. 147 acknowledge them to be an independent people, and the uniform
practice of acknowledging their right of soil, by purchasing from
them and restraining all persons from encroaching upon their
territory, makes it unnecessary to insist upon their right of soil.
Can, then, one nation be said to be seised of a fee simple in
lands, the right of soil of which is in another nation? It is
awkward to apply the technical idea of a fee simple to the
interests of a nation, but I must consider an absolute right of
soil as an estate to them and their heirs. A fee simple estate may
be held in reversion, but our law will not admit the idea of its
being limited after a fee simple. In fact, if the Indian nations be
the absolute proprietors of their soil, no other nation can be said
to have the same interest in it. What, then, practically, is the
interest of the States in the soil of the Indians within their
boundaries? Unaffected by particular treaties, it is nothing more
than what was assumed at the first settlement of the country,
to-wit, a right of conquest or of purchase, exclusively of all
competitors within certain defined limits. All the restrictions
upon the right of soil in the Indians amount only to an exclusion
of all competitors from their markets, and the limitation upon
their sovereignty amounts to the right of governing every person
within their limits except themselves. If the interest in Georgia
was nothing more than a preemptive right, how could that be called
a fee simple which was nothing more than a power to acquire a fee
simple by purchase, when the proprietors should be pleased to sell?
And if this ever was any thing more than a mere possibility, it
certainly was reduced to that state when the State of Georgia ceded
to the United States, by the Constitution, both the power of
preemption and of conquest, retaining for itself only a resulting
right dependent on a purchase or conquest to be made by the United
States.

															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, Page 10 U. S. 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.