doubt, that the property which represented the Active and her cargo was in possession, not of the state of Pennsylvania, but of David Rittenhouse, as an individual; after whose death it passed, like other property, to his representatives.

Since, then, the state of Pennsylvania had neither possession of, nor right to, the property on which the sentence of the district court was pronounced, and since the suit was neither commenced nor prosecuted against that state, there remains no pretext for the allegation that the case is within that amendment of the constitution which has been cited; and consequently, the state of Pennsylvania can possess no constitutional right to resist the legal process which may be directed in this cause.

It will be readily conceived that the order, which this court is enjoined to make by the high obligations of duty and of law, is not made without extreme regret at the necessity which has induced the application. But it is a solemn duty, and therefore must be performed. A peremptory mandamus must be awarded.

5 Cr. 141.

FLETCHER v. PECK.

FEBRUARY TERM, 1810.

[6 Cranch's Reports, 87-148.]

On the 7th of January, 1795, the legislature of Georgia passed an act authorizing a patent to issue to a company called "The Georgia Company," for a certain tract of land within the limits of that state; which patent was regularly issued on the 13th of that month. This land passed from hand to hand, until on the 14th of May, 1803, Peck, the defendant in this action, conveyed by deed to Fletcher, the plaintiff, fifteen thou sand acres of the original tract lying undivided therein. Peck) in this deed covenanted that Georgia, at the time her patent issued, was legally the owner in fee of the land in question, subject only to the extinguishment of the Indian title; that the legislature of Georgia had good right to sell the same; that the title given by Georgia had been legally conveyed to Peck; and that this title had been "in no way constitutionally or legally impaired by virtue of any consequent act of any subsequent legislature of the said state of Georgia." Fletcher, however, alleged that the legislature of Georgia had no right to sell the tract in question; that the members of the Georgia Company had promised members of the legislature, that, if they would vote for the act authorizing the patent to issue, they should have a share in the lands, by which, he alleged, the act was made of no avail, and so the title of the state of Georgia had never passed to Peck. And he alleged, further, that the legisla ture of Georgia, on the 13th of February, 1796, for the reason above stated, annulled the act granting a patent to the Georgia Company. He also alleged that on the 7th of January, 1795, the United States, and not Georgia, owned the lands in question.

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Fletcher sued Peck in the circuit court for the district of

Massachusetts, when all the facts above related were alleged in the pleadings; judgment went against the plaintiff, however, who brought up the case before the supreme bench.

In the following opinion of the court, as delivered by Chief Justice Marshal, so many of the facts in the case are stated, that, with the statement given above, it will be intelligible without a detail of minor points.

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 inʼa 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 sets forth a breach 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 a 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 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.

That corruption should find its way into the governments of our infant republics, and contaminate the very source of legisla tion, or that impure motives should contribute to the passage of a law, or the formation of a legislative contract, are circumstances most deeply to be deplored. How far a court of justice would in any case be competent, on proceedings instituted by the state itself, to vacate a contract thus formed, and to annul rights acquired under that contract by third persons having no notice of the improper means by which it was obtained, is a question which the court would approach with much circumspection. It may well be doubted how far the validity of a law depends upon the motives of its framers, and how far the particular inducements, operating on members of the supreme sovereign power of a state, to the formation of a contract by that power, are examinable in a court of justice. If the principle be conceded that an act of the supreme sovereign power might be declared null by a court, in consequence of the means which procured it, still would there be much difficulty in saying to what extent those means must be applied to produce this effect. Must it be direct corruption, or would interest or undue influence of any kind be sufficient? Must the vitiating cause operate

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