| Fletcher v. Peck
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100 U.S. 1
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| Syllabus
| Opinion
[ Marshall ] | Dissent
[ Johnson ] |
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Fletcher v. Peck
ERROR TO THE CIRCUIT COURT FOR THE DISTRICT OF MASSACHUSETTS
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. [p144]
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," [p145] 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 [p146] 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 [p147] 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, [p148] 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.
