In 1810 the case of Fletcher v. Peck[185] was decided in the Supreme Court of the United States. Chief Justice Marshall, in delivering the opinion of the court, said:
"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 can not 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 can not undo it....
"When then a law is in the nature of a contract, when absolute rights have vested under that contract, a repeal of the law can not devest those rights; ...
"It may well be doubted whether the nature of society and of government does not prescribe some limits to the legislative power;...
"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."
It is evident from this opinion that the court would have been disposed at that time to declare state laws impairing property rights null and void, even if there had been nothing in the Constitution of the United States to justify the exercise of such a power. Justice Johnson, in a separate opinion, said:
"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....
"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 was contended in this case that the state of Georgia had the right to revoke the grant on the ground that it was secured by corrupt means. This argument evidently failed to appeal to the court. It was referred to by Justice Johnson who said "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...."
It is interesting to observe that the Federalist judges in the early years of our history under the Constitution did not deem it necessary to find a constitutional ground for decisions of this sort. But with the overthrow of the Federalist party and the progress of belief in popular government, there is an evident disposition on the part of the court to extend the protection of the Federal Constitution to all the powers which it claimed the right to exercise. Thus in the Dartmouth College case, decided in 1819, the United States Supreme Court appears to have abandoned its earlier position and to have recognized the Constitution as the source of its power to annul state laws.