ut this was no ordinary case. The fraud asserted
against the grant was a matter of universal notoriety; it was, indeed,
the most resounding scandal of the generation; and surely judges may
assume to know what is known to all and may act upon their knowledge.

* 6 Cranch, 87.

Furthermore, when one turns to the part of Marshall's opinion which
deals with the constitutional issue, one finds not a little evidence of
personal predilection on the part of the Chief Justice. He starts out
by declaring the rescinding act void as a violation of vested rights, of
the underlying principles of society and government, and of the doctrine
of the separation of powers. Then he apparently realizes that a decision
based on such grounds must be far less secure and much less generally
available than one based on the words of the Constitution; whereupon he
brings forward the obligation of contracts clause. At once, however, he
is confronted with the difficulty that the obligation of a contract is
the obligation of a contract still to be fulfilled, and that a grant
is an executed contract over and done with--functus officio. This
difficulty he meets by asserting that every grant is attended by an
implied contract on the part of the grantor not to reassert his right to
the thing granted. This, of course, is a palpable fiction on Marshall's
part, though certainly not an unreasonable one. For undoubtedly when a
grant is made without stipulation to the contrary, both parties assume
that it will be permanent.

The greater difficulty arose from the fact that, whether implied or
explicit, the contract before the Court was a PUBLIC one. In the case of
private contracts it is easy enough to distinguish the contract, as the
agreement between the parties, from the obligation of the contract which
comes from the law and holds the parties to their engagements. But what
law was there to hold Georgia to her supposed agreement not to rescind
the grant she had made? Not the Constitution of the United States
unattended by any other law, since it protects the obligation only after
it has come into existence. Not the Constitution of Georgia as construed
by her own courts, since they had sustained the rescinding act. Only one
possibility remained; the State Constitution must be the source of the
obligation--yes; but the State Constitution as it was construed by
the United States Supreme Court in this very case, in the light of
the "general principles of o