of that fact would have presented a case on which it is unnecessary to give an opinion; but it certainly can never be alleged that a mere suggestion of title in a state to property, in possession of an individual, must arrest the proceedings of the court, and prevent their looking into the suggestion, and examining the validity of the title.

*140

If the suggestion in this case be examined, it is deemed perfectly clear that no title whatever to the certificates in question was vested in the state of Pennsylvania.

By the highest judicial authority of the nation it has been long since decided, that the Court of Appeals erected by Congress had full authority to revise and correct the sentence of the courts of admiralty of the several states, in prize causes. That question, therefore, is at rest. Consequently, the decision of the Court of Appeals in this case annulled the sentence of the Court of Admiralty, and extinguished the interest of the state of Pennsylvania in the Active and her cargo, which was acquired by that sentence. The full right to that property was immediately vested in the claimants, who might rightfully pursue it, into whosesoever hands it might come. These

certificates, in the hands, first, of Matthew Clarkson, the marshal, and afterwards of George Ross, the judge of the Court of Admiralty, were the absolute property of the claimants. Nor did they change their character on coming into the possession of David Rittenhouse.

Although Mr. Rittenhouse was treasurer of the

VOL. 1.-15.

state of Pennsylvania, and the bond of indemnity which he executed states the money to have been paid to him for the use of the state of Pennsylvania, it is apparent that he held them in his own right, until he should be completely indemnified by the state. The evidence to this point is conclusive. The original certificates do not appear to have been deposited in the state treasury, to have been designated in any manner as the property of the state, or to have been delivered over to the successor of David Rittenhouse. They remained in his possession. The indents, issued upon them for interest, were drawn by David Rittenhouse, and preserved with the original

certificates. When funded as When funded as *part of the *141 debt of the United States, they were funded by David Rittenhouse, and the interest was drawn by him. The note made by himself at the foot of the list, which he preserved, as explanatory of the whole transaction, demonstrates that he held the certificates as security against the bond he had executed to George Ross; and that bond was obligatory, not on the state of Pennsylvania, but on David Rittenhouse, in his private capacity.

These circumstances demonstrate, beyond the possibility of 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.

Fletcher v. Peck.

NOTE.

THIS is one of Marshall's greatest cases,―first, because it dealt with a political issue that had been a subject of dispute for years; second, because it was the earliest case in which he construed one of those provisions of the Constitution which directly restrict the power of the states under the union. This was the first case in which he decided that the decision of the United States courts could nullify the act of a state legislature. "No heavier or better directed blow was ever struck against States rights when those rights were invoked in order to thwart or cripple the National power."

Fletcher v. Peck decided that a state had no power to revoke a grant of land made by it; the decision rested mainly on the ground that such a revocation was an impairment of a contract and so contrary to the Constitution of the United States. That is the exact decision, and for that point the case is constantly cited and undoubted law. The circumstances under which the case arose and the entire failure of the judgment to settle the controversy which it considered seem almost universally forgotten.

The case was an action on certain covenants on a deed made by one Peck to one Fletcher conveying certain lands which, in 1795, had been sold to James Gunn and others, in accordance

1 Hon. Henry Cabot Lodge. Address before the Associated Committees of Illinois, on John Marshall Day, 1901. Reprinted in Dillon's John Marshall, vol. ii., pp. 303, 327. The place of Fletcher v. Peck in Marshall's scheme of constitutional law, its relation to the Dartmouth College case, and its influence on the law are dealt with in the introduction to these volumes.

with the authority of a special act of the legislature of Georgia. The grantor in this deed had covenanted in substance that the sale by the state of Georgia was legal and gave good title. The grounds of the action were, first, that the state had no title; second, that the act of the legislature authorizing it was obtained by fraud and corruption and thus was void; third, that the grant by the state was rescinded by a later act. The real question of the case was in regard to the validity of that act and the power of Georgia to pass it. A secondary objection to the title granted by the state was that it was subject to certain rights of occupancy by the Indians. The case arose on writ of error to the Circuit Court for the district of Massachusetts.

But there were certain other facts, not on the record, which were, humanly speaking, before Marshall and the Supreme Court. The lands in question, which had been granted to James Gunn, were some 15,000 acres, which in 1810 lay in the then territory of Mississippi. They were bounded on the west by the Mississippi, on the east by the Tombigbee. From the close of the revolution for independence until 1800, one of the most bitterly contested political questions, as Marshall said in his opinion, "a momentous question which, at one time, threatened to shake the American confederacy to its foundation," was whether the lands west of the Alleghanies were the property of the separate states or of the United States. The jealousy of the smaller states and the real patriotism of some of the states, like New York, led finally to the gradual cession of these lands to the federal government. One of the earliest phases of this controversy was Georgia's claim to the lands lying between it and the Mississippi which had been obtained from Spain. This region was sparsely settled and had no definite form of government. In 1788, Georgia ceded its claims in this region to the United States, but with such conditions that the grant was refused. In 1789, a great part of the land was sold to certain land companies, but the bargain was never carried out. In 1795, four new companies, commonly known as the Yazoo Companies, secured from the legislature of Georgia a grant of about thirty-five million acres for five hundred thousand dollars. The iniquity of the