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fletcher v peck concurring opinion

In 1785, Georgia passed an act erecting the county of Bourbon in that territory; this produced a dispute with South Carolina, which ended in the acknowledgment of the right of Georgia to these lands. Even though the land conveyance was the result of fraud and corruption, which the Court acknowledged was “deplorable,” it does not mean that the State can unwind a land deal upon which others relied. 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. 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. of north lat. 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. 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 16th section of which declares, that the general assembly hall have power to make all laws and ordinances which they shall deem necessary and proper for the good of the state which shall not be repugnant to this constitution. *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? 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. 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. The lands conveyed to the plaintiff lie on the western waters. The act of 10th of May, 1800. They were innocent. What, then, practically, is the interest of the states in the soil of the Indians within their boundaries? In considering this very interesting question, we immediately ask ourselves what is a contract? That afterwards the right honourable Lord Viscount Percival, the honourable Edward Digby, the honourable George Carpenter, James Oglethorpe, Esq. He wrote: It is not intended to speak with disrespect of the legislature of Georgia, or of its acts. It is a power as utterly incommunicable to a political as to a natural person. 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. The case stems from a property dispute over the Yazoo lands, Native American territory claimed by the State of Georgia. 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.

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