Admit that the State "might claim to itself the power of judging in its own case, yet there are certain great principles of justice ... that ought not to be entirely disregarded." Thus, at first, Marshall rested his opinion on elementary "principles of justice," rather than on the Constitution. These "principles" required that an innocent purchaser should not suffer. "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 between man and man would be very seriously obstructed, if this principle be overturned." The John Marshall who sat in the Virginia Legislature[1486] is speaking now.
Even if the Legislature could throw aside all "rules of property," still the rescinding act is "supported by its power alone, and the same power may divest any other individual of his lands, if it shall be the will of the legislature so to exert it." To make this perfectly clear, Marshall defined the theory relied upon by the opponents of the Yazoo fraud—"The principle is this: that a legislature may, by its own act, divest the vested estate of any man whatever, for reasons which shall, by itself, be deemed sufficient."[1487]
Supposing that the Georgia sale act had been procured by fraud; nevertheless, "the grant, when issued, conveyed an estate in fee-simple to the grantee, clothed with all the solemnities which law can bestow. This estate was transferable; and those who purchased parts of it were not stained by that guilt which infected the original transaction." They could not, therefore, be made to suffer for the wrong of another.
Any legislature can, of course, repeal the acts of a preceding one, and no legislature can limit the powers of its successor. "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 purchase of estates from the land companies was, by virtue of law, "a fact, and cannot cease to be a fact," even if the State should deny that it was a fact.
"When, then, a law is in its nature a contract, where absolute rights have vested under that contract, a repeal of the law cannot divest those rights." If it can, such a power is "applicable to the case of every individual in the community." Regardless of written constitutions, the "nature of society and of government" prescribes "limits to the legislative power." But "where are they to be found, if the property of an individual, fairly and honestly acquired, may be seized without compensation?" Again Marshall founds his reasoning, not on the Constitution, but on fundamental principles. At last, however, he arrives at the Constitution.
Georgia was not a single sovereign power, but "a part of a large empire, ... a member of the American Union; and that Union has a constitution ... which imposes limits to the legislatures of the several states, which none claim a right to pass." Had the Legislature of Georgia overstepped those limits? "Is a grant a contract?" The answer to that depended upon the definition of a contract. On this decisive point Marshall cited Blackstone: "A contract executed ... differs in nothing from a grant." This was the exact case presented by the Georgia sale act and the fulfillment, by the purchasers, of the conditions of it. "A party is, therefore, always estopped by his own grant," one obligation of which is that he shall never attempt "to re-assert that right" thus disposed of.
By this reasoning Marshall finally came to the conclusion that the Constitution plainly covered the case. That instrument did not distinguish between grants by individuals and those by States. If a State could not pass a law impairing the obligation of contracts between private persons, neither could it invalidate a contract made by itself.
Indeed, as everybody knew, said Marshall, "the framers of the constitution viewed, with some apprehension, 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." Therefore, it was provided in America's fundamental law that "no state shall pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts."[1488]
Such limitations, declared Marshall, constitute a bill of rights for the people of each State. Would any one pretend to say that a State might enact an ex post facto law or pass a bill of attainder? Certainly not! How then could anybody pretend that a State could by legislation annul a contract?
Thus far the opinion of the court was unanimous.[1489] As to the Indian title, Justice Johnson dissented. On the want of power of the Georgia Legislature to annul the sale act of 1795, the Republican Associate Justice was, however, even more emphatic than the soft-spoken Federalist Chief Justice. But he ended by a rebuke which, if justified, and if the case had not been so important and the situation so critical, probably would have required the peremptory dismissal of the appeal and the disbarment of counsel appearing in the cause. Justice Johnson intimated—all but formally charged—that the case was collusive.