CHAPTER X

FRAUD AND CONTRACT

If I were to characterize the United States, it should be by the

appellation of the land of speculation. (William Priest.)

By the God of Heaven, if we go on in this way, our nation will

sink into disgrace and slavery. (John Tyler.)

Millions of acres are easily digested by such stomachs. They buy

and sell corruption in the gross. (John Randolph.)

When a law is in its nature a contract, when absolute rights

have vested under that contract, a repeal of the law cannot

divest those rights. The people can act only by their agents

and, within the powers conferred upon them, their acts must be

considered as the acts of the people. (Marshall.)

The Honorable William Longstreet was an active and influential member of

the Georgia Legislature during the winter of 1794-95. He was also a

practical man. An important bill was then before that body, and Mr.

Longstreet employed effective methods to forward its passage. The

proposed legislation was to authorize the sale to four speculating land

companies[1359] of most of that territory which comprises the present

States of Alabama and Mississippi.

"Why are you not in favor of selling the western lands?" frequently

asked Representative Longstreet of his fellow member, Clem Lanier.

"Because I do not think it right to sell to companies of speculators,"

was the answer. "Better vote for the bill," observed his seat mate,

Representative Henry Gindrat, one day as they sat chatting before the

Speaker of the House took the chair. "It will be worth your while.

Senator Thomas Wylly says that he can have eight or ten likely negroes

for his part."

That afternoon Senator Wylly came to Lanier and began to talk of the

land bill. A Mr. Dennison sauntered up. Wylly left, and the newcomer

remarked that, of course, he advised no legislator how to vote, but he

could not help noticing that all who favored the sale of the lands "were

handsomely provided for." If Lanier should support the bill, he would be

taken care of like the rest. He was buying, Dennison said, from members

who wished to sell lands allotted to them for agreeing to support the

measure.

Once more came Longstreet, who "presented a certificate entitling the

bearer to two shares of twenty-five thousand acres each," as security

that Lanier would be rewarded if he voted for the sale bill. The

obdurate Representative, who wished to probe the depths of the plot,

objected, and Longstreet assured him that he would immediately procure

"another certificate ... for the same number of acres." But Lanier

finally declined the bribe of seventy-five thousand acres of land.[1360]

Representative Gindrat had offered to sell his shares for one thousand

dollars, the price generally given; but, securing "a better market,"

declined that sum.[1361] Representative Lachlan M'Intosh received six

shares in one of the land companies, which he sold at a premium of two

hundred and fifty dollars each.[1362]

After the bill had passed, Senator Robert Thomas, who had no means of

acquiring ready cash,[1363] brought two thousand dollars to the house

where he boarded and asked Philip Clayton, the owner, to keep it for

him. Clayton was curious--did Senator Thomas get the money for his share

of the lands? he inquired. "It is nothing to you; take care of it,"

answered the suddenly affluent legislator, smiling.[1364]

Representative Longstreet offered Representative John Shepperd one

hundred thousand acres, but Shepperd was not interested; then Philip

Clayton, the tavern-keeper, offered him seventy pounds to go home for

the session.[1365]

A saturnalia of corruption was in progress in the little village of

Augusta, where the Legislature of Georgia was in session.[1366] The

leading men of that and neighboring States were on the ground urging the

enactment of the law in which all were interested. Wade Hampton of South

Carolina was on hand. State and National judges were present. James

Wilson of Pennsylvania, Associate Justice of the Supreme Court of the

United States, was there with twenty-five thousand dollars in bank

bills.[1367]

William Smith, Judge of the Superior Court of Georgia, added his

influence, receiving for his services as lobbyist thirteen thousand

dollars. Nathaniel Pendleton, Judge of the United States Court for that

district, urged the legislation and signed and issued the certificates

for shares that were given to the members for their votes.[1368]

Directing all was General James Gunn, United States Senator from

Georgia: his first term in the National Senate about to expire, he was

now reëlected by this very Legislature.[1369]

A majority of Georgia's lawmaking body thus became financially

interested in the project, and the bill passed both houses. But Governor

George Mathews vetoed the measure, because he thought the time not

propitious for selling the lands, the price too low, the reservations

for Georgians too small, and the principle of monopoly wrong.[1370]

Another bill was prepared to meet some of the Governor's objections.

This was introduced as a supplement to a law just enacted to pay the

State troops.[1371] Again every possible influence was brought upon the

Legislature to pass this bill with utmost dispatch.[1372] Some members,

who would not support it, were induced to leave the tiny Georgia

Capital; others, who were recalcitrant, were browbeaten and bullied.

Senator Gunn, the field marshal of this legislative campaign, strode

about the village arrayed in broadcloth, top boots, and beaver hat,

commending those who favored the bill, abusing those who opposed it. In

his hand he carried a loaded whip, and with this the burly Senator

actually menaced members who objected to the scheme.[1373] In a little

more than one week the bill was rushed through both houses. This time it

received the reluctant approval of the Governor, and on January 7, 1795,

became a law.

In such fashion was enacted the legislation which disposed of more than

thirty-five million acres of fertile, well-watered, heavily wooded land

at less than one and one half cents an acre.[1374] The purchasers were

four companies known as The Georgia Company, The Georgia Mississippi

Company, The Tennessee Company, and The Upper Mississippi Company. The

total purchase price was five hundred thousand dollars in specie or

approved currency, one fifth to be deposited with the State Treasurer

before the passage of the act, and the remainder to be paid on or

before November 1, 1795. The Governor was directed to execute a deed in

fee-simple to the men composing each company as tenants in common; and

the deferred payments were secured by mortgages to the Governor, to be

immediately foreclosed upon default of payment, and the one fifth

already deposited to be forfeited to the State.

Two million acres were reserved for exclusive entry by citizens of

Georgia, and the land companies were bound to form settlements within

five years after the Indian titles had been extinguished. The lands were

declared free of taxation until they should be so occupied that the

settlers were represented in the Legislature.[1375] Governor Mathews

executed deeds in compliance with the law, and, the entire amount of the

purchase money having been paid into the State Treasury before November

1, the mortgages were canceled and the transaction was closed in

accordance with the provisions of the statute. So far as that

legislation and the steps taken in pursuance of it could bring about

such a result, the legal title to practically all of the domain

stretching from the present western boundary of Georgia to the

Mississippi River, and from the narrow strip of Spanish territory on the

Gulf to the Tennessee line, was transferred to the men composing these

four land companies. The greatest real estate deal in history was thus

consummated.

But even while this bill was before the Legislature, popular opposition

to it began. A young man of twenty-three was then teaching in a little

school-house at Augusta, but he was destined to become United States

Senator, Minister to France, Secretary of the Treasury, and candidate

for President. Enraged at what he believed the despoiling of the people

by a band of robbers using robbers' methods, young William H. Crawford

hurried to his home in Columbia County, got up a petition to the

Governor to reject the bill again, and hurried to the Capital where he

presented it to the Chief Executive of the State.[1376] But Governor

Mathews, against whom no man, then or thereafter, charged corrupt

motives, persisted in signing the measure.

And it must be said that the bill was not without merit. Georgia was but

thinly populated, not more than fifty thousand human beings inhabiting

its immense extent of savanna and forest. Most of these people were very

poor[1377] and unable to pay any public charges whatever. The State

Treasury was empty; the State troops, who had been employed in the

endless Indian troubles, were unpaid and clamoring for the money long

due them; the State currency had so depreciated that it was almost

without value. No commonwealth in the Union was in worse financial

case.[1378]

Moreover, the titles of the Indians, who occupied the country and who

were its real owners, had not been extinguished. Under the Constitution,

the National Government alone could deal with the tribes, and it had

long been urging Georgia to cede her claims to the United States, as

Virginia and Connecticut had done. Indeed, the State had once offered to

make this cession, but on such terms that Congress had refused to accept

it. The purchasers now took whatever title Georgia had, subject to these

burdens, the State to be saved from all annoyance on account of them.

The tribes were powerful and brave, and they had been prompt and bold in

the defense of their lands. The Creeks alone could put nearly six

thousand fighting men in the field, and the Choctaws had more than four

thousand trained warriors.[1379] The feeble and impoverished State had

never been able to subdue them, or to enforce in the slightest degree

the recognition of the State's title to the country they inhabited.

Georgia's right to their lands "depended on her power to dispossess the

Indians; but however good the title might be, the State would have been

fortunate to make it a free gift to any authority strong enough to deal

with the Creeks and Cherokees alone."[1380]

The sale of the territory was not a new or novel project. Six years

earlier the State had disposed of twenty-five million five hundred

thousand acres of the same territory to four land companies on much

poorer terms.[1381] Jefferson, then Secretary of State, rendered a

careful opinion on the right of Georgia to make the grant.[1382] These

purchasers had tendered payment in South Carolina and Continental scrip

that was practically worthless; the Treasurer of Georgia had properly

refused to accept it; and there ended the transaction as far as the

State was concerned. A suit was later brought against Georgia by the

grantees[1383] to compel the performance of the contract; but the

Eleventh Amendment of the Constitution thwarted that legal plan. So

these speculators dropped the matter until the sale just described was

made to the new companies six years later.

The most active promoters of the first purchasing companies, in 1789,

were mere adventurers, although at first Patrick Henry and other men of

honor and repute were interested in the speculation. Henry, however,

soon withdrew.[1384] The consummation of their deal with Georgia

required the payment of sound money and _bona-fide_ settlement by actual

tillers of the soil. Also, the adventurers got into trouble with the

Indians, became gravely involved in Spanish intrigue, and collided with

the National Government;[1385] so the enterprise lost, for a time, all

attractiveness for these speculators.

The new land companies, on the other hand, were for the most part

composed of men of excellent reputations.[1386] At the head of the

largest, The Georgia Company, were United States Senator James Gunn and

United States Attorney for the District of Georgia, Mathew McAlister;

associated with them, in addition to Judges Stith and Pendleton, and

Justice Wilson, were Robert Goodloe Harper, Representative in Congress

from Maryland, Robert Morris, the financier of the Revolution, and

others of substance and position.[1387] Also, as has been stated, they

paid for their lands in the money called for by the act--the best money

then circulating in America. The first sales of Indian lands to which

Georgia claimed title were known as the "Yazoo" speculation, and this

designation stuck to the second transaction.

In the six years that had intervened between the sales to the

irresponsible land-jobbers of 1789 and the solvent investors of 1795, an

event of world importance had occurred which doubled and trebled the

value of all cotton-bearing soil. Eli Whitney, a Connecticut

school-teacher twenty-seven years of age, had gone to Georgia in 1792 to

act as a private tutor. Finding the position taken, he studied law while

the guest of the widow of General Nathanael Greene. This discerning

woman, perceiving that the young man was gifted with inventive genius,

set him to work on a device for separating cotton from the seed. The

machine was built, and worked perfectly. The news of it traveled with

astonishing rapidity throughout Georgia and the South. The model was

stolen; and so simple was the construction of it that everywhere in

cotton-growing lands it was freely reproduced by planters great and

small. The vast sweep of territory stretching from Georgia to the Father

of Waters, the best cotton land in the world, thus rose in value as if

the wand of a financial deity had been waved over it. Settlers poured

into Georgia by the thousand, and Indian atrocities were now as little

feared as Indian rights were respected.[1388]

The purchase of the unoccupied Georgia lands by the _bona-fide_, if

piratical, land companies of 1795 became, therefore, an adventure far

more valuable in possibilities for the investors, and incomparably more

attractive in the probability of political advantage to those who

resisted it, than the innocuous and unopposed sale to the Yazoo

swindlers of six years previous.

So it fell out that the mechanical genius of Eli Whitney, in 1793,

called into action, exactly eighteen years afterward, the judicial

genius of John Marshall. His opinion in Fletcher _vs._ Peck was one of

the first steps toward the settling of the law of public contract in the

riotous young Republic--one of the earliest and strongest judicial

assertions of the supremacy of Nationalism over Localism. And never more

than at that particular time did an established rule on these vital

subjects so need to be announced by the highest judicial authority.

Since before the Revolution, all men had fixed their eyes, hopes, and

purposes upon land. Not the humble and needy only, but the high-placed

and opulent, had looked to the soil--the one as their chief source of

livelihood, and the other as a means of profitable speculation. Indeed,

dealing in land was the most notable economic fact in the early years of

the American Nation. "Were I to characterize the _United States_,"

chronicles one of the most acute British travelers and observers

of the time, "it should be by the appellation of the _land of

speculation_."[1389]

From the Nation's beginning, the States had lax notions as to the

sacredness of public contracts, and often violated the obligations of

them.[1390] Private agreements stood on a somewhat firmer basis, but

even these were looked upon with none too ardent favor. The most

familiar forms of contract-breaking were the making legal tender of

depreciated paper, and the substitution of property for money; but other

devices were also resorted to. So it was that the provision, "no state

shall pass any law impairing the obligation of contracts," was placed in

the Constitution.[1391] The effect of this on the public mind, as

reported by conservatives like Marshall, is stated in the _Commercial

Gazette_ of Boston, January 28, 1799: "State laws protected debtors"

when they "were citizens ... [and] the creditors foreigners. The federal

constitution, prohibiting the states to clear off debts _without

payment_, by exacting _justice_, seemed ... to establish _oppression_."

The debtors, therefore, "pronounced ... the _equal_ reign of law and

debt-compelling justice, the beginning of an insidious attack on liberty

and the erection of aristocracy."

The "contract clause" of the Constitution was now to be formally

challenged by a "sovereign" State for the first time since the

establishment of the National Government. Georgia was to assert her

"sovereignty" by the repudiation of her laws and the denial of

contractual rights acquired under them. And this she was to do with

every apparent consideration of morality and public justice to support

her.

The tidings of the corruption attending the second "Yazoo" sale were

carried over the State on the wings of fury. A transaction which six

years before had met with general acquiescence,[1392] now received

deep-throated execration. The methods by which the sale was pushed

through the Legislature maddened the people, and their wrath was

increased by the knowledge that the invention of the Connecticut

schoolmaster had tremendously enhanced the value of every acre of

cotton-bearing soil.

Men who lived near Augusta assembled and marched on the Capital

determined to lynch their legislative betrayers. Only the pleadings of

members who had voted against the bill saved the lives of their guilty

associates.[1393] Meetings were held in every hamlet. Shaggy

backwoodsmen met in "old-field" log schoolhouses and denounced "the

steal." The burning in effigy of Senator Gunn became a favorite

manifestation of popular wrath. The public indignation was strengthened

by the exercise of it. Those responsible for the enactment of the law

found it perilous to be seen in any crowd. One member left the State.

Another escaped hanging only by precipitate flight.[1394] Scores of

resolutions were passed by town, rural, and backwoods assemblages

demanding that the fraudulent statute be rescinded. Petitions,

circulated from the "mansion" of the wealthy planter to the squalid

cabin of the poorest white man, were signed by high and low alike. The

grand juries of every county in Georgia, except two, formally presented

as a grievance the passage of the land sale act of 1795.

Among other things, the land sale act required the Senators and

Representatives of Georgia in Congress to urge the National Government

to speed the making of a treaty with the Indian tribes extinguishing

their title to the lands which the State had sold. Upon receiving a copy

of the nefarious law, Senator James Jackson of Georgia laid it before

the Senate, together with a resolution declaring that that body would

"advise and consent" to the President's concluding any arrangement that

would divest the Indians of their claims.[1395]

But although he had full knowledge of the methods by which the act was

passed, the records do not show that Jackson then gave the slightest

expression to that indignation which he so soon thereafter poured forth.

Nor is there any evidence that he said a word on the subject when, on

March 2, 1795, Georgia's title again came before the Senate.[1396] Some

time afterward, however, Senator Jackson hurried home and put himself at

the head of the popular movement against the "Yazoo Frauds." In every

corner of the State, from seaport to remotest settlement, his fiery

eloquence roused the animosity of the people to still greater frenzy. In

two papers then published in Georgia, the _Savannah Gazette_ and the

_Augusta Chronicle_, the Senator, under the _nom de guerre_ of

"Sicillius," published a series of articles attacking with savage

violence the sale law and all connected with the enactment of it.[1397]

It came out that every member of the Legislature who had voted for the

measure, except one,[1398] had shares of stock in the purchasing

companies.[1399] Stories of the extent of the territory thus bartered

away kept pace with tales of the venality by which the fraud was

effected. Bad as the plain facts were, they became simply monstrous when

magnified by the imagination of the public.

Nearly every man elected[1400] to the new Legislature was pledged to

vote for the undoing of the fraud in any manner that might seem the most

effective. Senator Jackson had resigned from the National Senate in

order to become a member of the Georgia House of Representatives; and to

this office he was overwhelmingly elected. When the Legislature

convened in the winter of 1795-96, it forthwith went about the task of

destroying the corrupt work of its predecessor. Jackson was the

undisputed leader;[1401] his associates passed, almost unanimously, and

Governor Irwin promptly approved, the measure which Jackson wrote.[1402]

Thus was produced that enactment by a "sovereign" State, the validity of

which John Marshall was solemnly to deny from the Supreme Bench of the

Nation.

Jackson's bill was a sprightly and engaging document. The preamble was

nearly three times as long as the act itself, and abounded in

interminable sentences. It denounced the land sale act as a violation of

both State and National Constitutions, as the creation of a monopoly, as

the dismemberment of Georgia, as the betrayal of the rights of man. In

this fashion the "whereases" ran on for some thousands of words. On

second thought the Legislature concluded that the law was worse than

unconstitutional--it was, the "whereases" declared, a "usurped act."

That part of the preamble dealing with the mingled questions of fraud

and State sovereignty deserves quotation in full:

"And Whereas," ran this exposition of Constitutional law and of the

nature of contracts, "divested of all fundamental and constitutional

authority which the said usurped act might be declared by its advocates,

and those who claim under it, to be founded on, fraud has been practised

to obtain it and the grants under it; and it is a fundamental principle,

both of law and equity, that there cannot be a wrong without a remedy,

and the State and the citizens thereof have suffered a most grievous

injury in the barter of their rights by the said usurped act and grants,

and there is no court existing, if the dignity of the State would permit

her entering one, for the trial of fraud and collusion of individuals,

or to contest her sovereignty with them, whereby the remedy for so

notorious an injury could be obtained; and it can no where better lie

than with the representatives of the people chosen by them, after due

promulgation by the grand juries of most of the counties of the State,

of the means practised, and by the remonstrances of the people of the

convention, held on the 10th day of May, in the year 1795, setting forth

the atrocious peculation, corruption, and collusion, by which the

usurped act and grants were obtained."[1403]

At last the now highly enlightened Legislature enacted "that the said

usurped act ... be declared null and void," and that all claims directly

or indirectly arising therefrom be "annulled." The lands sold under the

Act of 1795 were pronounced to be "the sole property of the State,

subject only to the right of treaty of the United States, to enable the

State to purchase, under its pre-emption right, the Indian title to the

same."[1404]

Such was the law which John Marshall was to declare invalid in one of

the most far-reaching opinions ever delivered from the Supreme Bench.

The Legislature further enacted that the "usurped act" and all "records,

documents, and deeds" connected with the Yazoo fraud, "shall be expunged

from the face and indexes of the books of record of the State, and the

enrolled law or usurped act shall then be publicly burnt, in order that

no trace of so unconstitutional, vile, and fraudulent a transaction,

other than the infamy attached to it by this law, shall remain in the

public offices thereof." County officials were, under the severest of

penalties for disobedience, directed to "obliterate" all records of

deeds or other instruments connected with the anathematized grants, and

courts were forbidden to receive any evidence of title of any kind

whatever to lands from the grantees under the "usurped act."[1405]

The Governor was directed to issue warrants for repayment to those who,

in good faith, had deposited their purchase money, with this

reservation, however: "Provided the same shall be now therein."[1406]

After six months all moneys not applied for were to become the property

of Georgia. To prevent frauds upon individuals who might otherwise

purchase lands from the pirate companies, the Governor was directed to

promulgate this brief and simple act "throughout the United States."

A committee, appointed to devise a method for destroying the records,

immediately reported that this should be done by cutting out of the

books the leaves containing them. As to the enrolled bill containing

the "usurped act," an elaborate performance was directed to be held:

"A fire shall be made in front of the State House door, and a line

formed by the members of both branches around the same. The Secretary of

State[1407] ... shall then produce the enrolled bill and usurped act

from among the archives of the State and deliver the same to the

President of the Senate, who shall examine the same, and shall then

deliver the same to the Speaker of the House of Representatives for like

examination; and the Speaker shall then deliver them to the Clerk of the

House of Representatives, who shall read aloud the title to the same,

and shall then deliver them to Messenger of the House, who shall then

pronounce--'GOD SAVE THE STATE!! AND LONG PRESERVE HER RIGHTS!! AND MAY

EVERY ATTEMPT TO INJURE THEM PERISH AS THESE CORRUPT ACTS NOW

DO!!!!'"[1408]

Every detail of this play was carried out with all theatrical effect.

Indeed, so highly wrought were the imaginations of actors and onlookers

that, at the last moment, a final dash of color was added. Some one

gifted with dramatic genius suggested that the funeral pyre of such

unholy legislation should not be lighted by earthly hands, but by fire

from Heaven. A sun-glass was produced; Senator Jackson held it above

the fagots and the pile was kindled from "the burning rays of the

lidless eye of justice."[1409]

While the State was still in convulsions of anger, a talented young

Virginian of impressionable temperament went to Georgia upon a visit to

a college friend, Joseph Bryan, and was so profoundly moved by accounts

of the attempt to plunder the State, that a hatred of the corrupt plot

and of all connected with it became an obsession that lasted as long as

he lived.[1410] Thus was planted in the soul of John Randolph that

determination which later, when a member of Congress, caused him to

attack the Administration of Thomas Jefferson.[1411]

Swift as was the action of the people and legislature of Georgia in

attempting to recover the Yazoo lands, it was not so speedy as that of

the speculators in disposing of them to purchasers in other States. Most

of these investors bought in entire good faith and were "innocent

purchasers." Some, however, must have been thoroughly familiar with the

fraud.[1412] The most numerous sales were made in the Middle States and

in New England. The land companies issued a prospectus,[1413] setting

out their title, which appeared to be, and indeed really was, legally

perfect. Thousands of copies of this pamphlet were scattered among

provident and moneyed people. Agents of the companies truthfully

described the Yazoo country to be rich, the climate mild and healthful,

and the land certain of large and rapid rise in value.

Three of the companies[1414] opened an office in Boston, where the

spirit of speculation was rampant. Then ensued an epidemic of

investment. Throngs of purchasers gathered at the promoters' offices.

Each day prices rose and the excitement increased. Buying and selling of

land became the one absorbing business of those who had either money or

credit. Some of the most prominent and responsible men in New England

acquired large tracts.[1415] The companies received payment partly in

cash, but chiefly in notes which were speedily sold in the market for

commercial paper. Sales were made in other Northern cities, and many

foreigners became purchasers. The average price received was fourteen

cents an acre.[1416]

Some New Englanders were suspicious. "The Georgia land speculation calls

for vigor in Congress. Near fifty millions acres sold ... for a song,"

wrote Fisher Ames.[1417] But such cautious men as Ames were few in

number and most of them were silent. By the time reports reached Boston

that the Legislature of Georgia was about to repeal the act under which

the companies had bought the lands, numerous sales, great and small, had

been made. In that city alone more than two millions of dollars had been

invested, and this had been paid or pledged by "every class of men, even

watch-makers, hair-dressers, and mechanics." The Georgia Company

conveyed eleven million acres on the very day that the Legislature of

Georgia passed the bill declaring the "usurped act" to be null and void

and asserting the title of the whole territory still to be in the

State.[1418]

Three weeks later, the news of the enactment of the rescinding law was

published in the New England metropolis. Anger and apprehension seized

the investors. If this legislation were valid, all would lose heavily;

some would be financially ruined. So a large number of the purchasers

organized the New England Mississippi Company for the purpose of

defending their interests. A written opinion upon the validity of their

titles was procured from Alexander Hamilton, who was then practicing law

in New York and directing the Federalist Party throughout the Nation.

He was still regarded by most Federalists, and by nearly all moneyed

men, as the soundest lawyer, as well as the ablest statesman, in

America.

Hamilton's opinion was brief, simple, convincing, and ideally

constructed for perusal by investors. It stated the facts of the

enactment of the sale law, the fulfillment of the conditions of it by

the purchasers, and the passage of the rescinding act. Hamilton declared

this latter act to be invalid because it plainly violated the contract

clause of the Constitution. "Every grant ... whether [from] ... a state

or an individual, is virtually a contract." The rescinding act was

therefore null, and "the courts of the United States ... will be likely

to pronounce it so."[1419]

Soon after its passage, President Washington had received a copy of the

Georgia land sale act. He transmitted it to Congress with a short

Message,[1420] stating that the interests of the United States were

involved. His principal concern, however, and that of Congress also, was

about the Indians. It was feared that depredations by whites would cause

another outbreak of the natives. A resolution was adopted authorizing

the President to obtain from Georgia the cession of her "claim to the

whole or any part of the land within the ... Indian boundaries," and

recommending that he prevent the making of treaties by individuals or

States "for the extinguishment of the Indian title." But not a word was

said in Washington's Message, or in the debate in Congress, about the

invalidity of the Georgia sale law or the corrupt methods employed to

secure the enactment of it.[1421]

Two bills to protect the Indians failed of passage.[1422] Just before

adjournment the House adopted a Senate resolution which had been offered

by Senator Rufus King of New York, requesting that the Attorney-General

report to the Senate all data bearing on Georgia's title to the

territory sold to the land companies; but again the invalidity of the

sale law was not even suggested, and the corruption of the Georgia

Legislature was not so much as referred to.[1423]

A year later, Charles Lee, Washington's Attorney-General, transmitted to

Congress an exhaustive report containing all facts.[1424] This report

was referred to a special committee, headed by Senator Aaron Burr of New

York, who, on May 20, 1796, reported a resolution authorizing the

President to treat with Georgia for the cession of the territory.[1425]

Once more no attention was paid to the fraud in the sale act, or to the

rescinding act of the Georgia Legislature.

But when the public finally learned of the "Yazoo Fraud" and of the

repudiation by the Georgia Legislature of the corrupt law, the whole

country was deeply stirred. A war of pamphlets broke out and was waged

by both sides with vigor and ability. Abraham Bishop of New Haven,

Connecticut, wrote a comprehensive answer to the prospectus of the land

companies, and copies of this pamphlet, which appeared in four parts,

were widely circulated.[1426] Georgia had no fee in the lands, said

Bishop.[1427] Sales to "innocent purchasers" could not give them what

Georgia had no right to sell. Neither could such a device validate

fraud. Much litigation had already grown out of the swindle, and the

Georgia rescinding act had "brought ... matters to a crisis, and one

decision of the supreme court of the United States may probably

influence the decisions of lower courts."[1428] Bishop discussed

brilliantly, and at length, every possible question involved. The power

of the State to pass and repeal laws was "wholly uncontrolable,"[1429]

he asserted. The history of other dishonest and imprudent speculations

was examined--the South Sea Bubble, the Mississippi Bubble,[1430] and

the interposition of the legislative power of Great Britain in the one

case and of France in the other. Should like power be denied in America?

Georgia's rescinding act "nipt in the bud a number of aspiring

swindlers."[1431] Courts could not overthrow such legislation. The

"sacredness of contracts" was the favorite cloak of fraud. Bishop urged

buyers to resist the recovery of money pledged in their purchase notes

and, by so doing, to restore "millions of dollars ... to the channels of

industry."[1432]

Hard upon the publication of the first number of Bishop's pamphlet

followed one for the land companies and investors. This had been written

by Robert Goodloe Harper of Maryland a few months after Hamilton had

rendered his opinion that the Georgia grant was inviolable.[1433] It

was an able and learned performance. The title of Georgia to the lands

was carefully examined and held to be indefeasible. The sale of 1795 was

set forth and the fact disclosed that Georgia had appropriated one

hundred thousand dollars of the purchase money immediately upon the

receipt of it.[1434] It was pointed out that the rescinding act ignored

this fact.[1435]

Harper argued that only the courts could determine the validity and

meaning of a law, and that no Legislature could annul a grant made by a

previous one. To the Judiciary alone belonged that power.[1436] The sale

law was a contract, fully executed; one party to it could not break that

compact.[1437] If Georgia thought the sale act unconstitutional, she

should have brought suit in the United States Court to determine that

purely judicial question. The same was true as to the allegations of

fraud and corruption in the passage of the measure. If any power could

do so, the courts and they alone could decide the effect of fraud in

procuring the enactment of a law. But even the courts were barred from

investigating that question: if laws could be invalidated because of the

motives of members of lawmaking bodies, "what a door would be opened to

fraud and uncertainty of every kind!"[1438]

Finally, after a long altercation that lasted for nearly three years,

Congress enacted a law authorizing the appointment of commissioners to

settle the disputes between the National Government and Georgia, and

also to secure from that truculent sovereignty the cession to the Nation

of the lands claimed by the State.[1439] In the somewhat extended debate

over the bill but little was said about the invalidity of the Yazoo

sale, and the corruption of the Legislature that directed it to be made

was not mentioned.[1440]

Under this act of Congress, Georgia ceded her rights over the disputed

territory for one million, two hundred and fifty thousand dollars;

provided, however, that the Nation should extinguish the Indian titles,

settle British and Spanish claims, ultimately admit the vast domain as

a State of the Union, and reserve five million acres for the purpose of

quieting all other demands. A later law[1441] directed the National

commissioners, who had negotiated this arrangement with Georgia, to

investigate and report upon the claims of individuals and companies to

lands within the territory thus ceded to the United States.

At once the purchasers from the land companies, especially the New

England investors, besieged Congress to devote part of this five million

acres to the salvage of their imperiled money. The report of the

commissioners[1442] was wise, just, and statesmanlike. It was laid

before the House on February 16, 1803. Although the titles of the

claimants could "not be supported," still, because most of the titles

had been acquired in good faith, and because it would be injurious to

everybody, including the Nation, to leave the matter unsettled, the

report recommended the accommodation of the dispute on terms that would

save innocent purchasers at least a part of the money they had paid or

legally engaged to pay.[1443]

When a bill to carry out the recommendations of the commission for the

payment of the Yazoo claimants came before the House, John Randolph

offered a resolution that went directly to the heart of the controversy

and of all subsequent ones of like nature. It declared that "when the

governors of any people shall have betrayed" their public trust for

their own corrupt advantage, it is the "inalienable right" of that

people "to abrogate the act thus endeavoring to betray them."

Accordingly the Legislature of Georgia had passed the rescinding act.

This was entirely legal and constitutional because "a subsequent

Legislature of an individual State has an undoubted right to repeal any

act of a preceding Legislature, provided such repeal be not forbidden by

the constitution of such State, or of the United States." Neither the

fundamental law of Georgia nor of the Nation forbade the repeal of the

corrupt law of 1795. Claims under this nullified and "usurped" law were

not recognized by the compact of cession between Georgia and the United

States, "nor by any act of the Federal Government." Therefore, declared

Randolph's resolution, "no part of the five millions of acres reserved

for satisfying and quieting claims ... shall be appropriated to quiet or

compensate any claims" derived under the corrupt legislation of the

Georgia Legislature of 1795.[1444] After a hot fight, consideration of

the resolutions was postponed until the next session; but the bill

authorizing the commissioners to compromise with the Yazoo claimants

also went over.[1445]

The matter next came up for consideration in the House, just before the

trial in the Senate of the impeachment of Justice Samuel Chase. A

strong and influential lobby was pressing the compromise. The

legislative agents of the New England Mississippi Company[1446]

presented its case with uncommon ability. In a memorial to

Congress[1447] they set forth their repeated applications to President,

Congress, and the commissioners for protection. They were, they said,

"constantly assured" that the rights of the claimants would be

respected; and that it was expressly for this purpose that the five

million acres had been reserved. For years they had attended sittings of

the commissioners and sessions of Congress "at great cost and heavy

expense."

Would not Congress at last afford them relief? If a "judicial decision"

was desired, let Congress enact a law directing the Supreme Court to

decide as to the validity of their title and they would gladly submit

the matter to that tribunal. It was only because Congress seemed to

prefer settlement by compromise that they again presented the facts and

reasons for establishing their rights. So once more every aspect of the

controversy was discussed with notable ability and extensive learning in

Granger and Morton's brochure.[1448]

The passions of John Randolph, which had never grown cold since as a

youth, a decade previously, he had witnessed the dramatic popular

campaign in Georgia--and which during 1804 had been gathering intense

heat--now burst into a furious flame. Unfortunately for Jefferson, the

most influential agent of the New England claimants was the one

Administration official who had most favors to bestow--Gideon Granger of

Connecticut, the Postmaster-General.[1449] He was the leader of the

lobby which the New England Mississippi Company had mustered in such

force. And Granger now employed all the power of his department, so rich

in contracts and offices, to secure the passage of a bill that would

make effectual the recommendations of Jefferson's commissioners.

As the vote upon it drew near, Granger actually appeared upon the floor

of the House soliciting votes for the measure. Randolph's emotions were

thus excited to the point of frenzy--the man was literally beside

himself with anger. He needed to husband all his strength for the

conduct of the trial of Chase[1450] and to solidify his party, rather

than to waste his physical resources, or to alienate a single

Republican. On the report of the Committee of Claims recommending the

payment of the Yazoo claimants, one of the most virulent and picturesque

debates in the history of the American Congress began.[1451] Randolph

took the floor, and a "fire and brimstone speech"[1452] he made.

"Past experience has shown that this is one of those subjects which

pollution has sanctified," he began. "The press is gagged." The New

England claimants innocent purchasers! "Sir, when that act of stupendous

villainy was passed in 1795 ... it caused a sensation scarcely less

violent than that produced by the passage of the stamp act." Those who

assert their ignorance of "this infamous act" are gross and willful

liars.[1453] To a "monstrous anomaly" like the present case, cried

Randolph, "narrow maxims of municipal jurisprudence ought not, and

cannot be applied.... Attorneys and judges do not decide the fate of

empires."[1454]

Randolph mercilessly attacked Granger, and through him the

Administration itself. Granger's was a practiced hand at such business,

he said. He was one of "the applicants by whom we were beset" in the

Connecticut Reserve scheme, "by which the nation were swindled out of

some three or four millions of acres of land, which, like other bad

titles, had fallen into the hands of innocent purchasers." Granger

"seems to have an unfortunate knack of buying bad titles. His gigantic

grasp embraces with one hand the shores of Lake Erie,[1455] and

stretches with the other to the Bay of Mobile.[1456] Millions of acres

are easily digested by such stomachs.... They buy and sell corruption in

the gross." They gamble for "nothing less than the patrimony of the

people." Pointing his long, bony finger at Granger, Randolph exclaimed:

"Mr. Speaker, ... this same agent is at the head of an Executive

department of our Government.... This officer, possessed of how many

snug appointments and fat contracts, let the voluminous records on your

table, of the mere names and dates and sums declare, ... this officer

presents himself at your bar, at once a party and an advocate."[1457]

The debate continued without interruption for four full days. Every

phase of the subject was discussed exhaustively. The question of the

power of the Legislature to annul a contract; of the power of the

Judiciary to declare a legislative act void because of corruption in the

enactment of it; the competency of Congress to pass upon such disputed

points--these questions, as well as that of the innocence of the

purchasers, were elaborately argued.

The strongest speech in support of the good faith of the New England

investors was made by that venerable and militant Republican and

Jeffersonian, John Findley of Pennsylvania.[1458] He pointed out that

the purchase by members of the Georgia Legislature of the lands sold was

nothing unusual--everybody knew "that had been the case in Pennsylvania

and other states." Georgia papers did not circulate in New England; how

could the people of that section know of the charges of corruption and

the denial of the validity of the law under which the lands were sold?

Those innocent purchasers had a right to trust the validity of the title

of the land companies--the agents had exhibited the deeds executed by

the Governor of Georgia, the law directing the sale to be made, and the

Constitution of the State. What more could be asked? "The respectability

of the characters of the sellers" was a guarantee "that they could not

themselves be deceived and would not deceive others." Among these, said

Findley, was an eminent Justice of the Supreme Court,[1459] a United

States Senator,[1460] and many other men of hitherto irreproachable

standing. Could people living in an old and thickly settled State, far

from the scene of the alleged swindle, with no knowledge whatever that

fraud had been charged, and in need of the land offered--could they

possibly so much as suspect corruption when such men were members of the

selling companies?

Moreover, said Findley--and with entire accuracy--not a Georgia official

charged with venality had been impeached or indicted. The truth was that

if the Georgia Legislature had not passed the rescinding act the

attention of Congress would never have been called to the alleged

swindle. Then, too, everybody knew "that one session of a Legislature

cannot annul the contracts made by the preceding session"; for did not

the National Constitution forbid any State from passing a law impairing

the obligation of contracts?[1461]

Randolph outdid himself in daring and ferocity when he again took the

floor. His speech struck hostile spectators as "more outrageous than the

first."[1462] He flatly charged that a mail contract had been offered to

a member of the House, who had accepted it, but that it had been

withdrawn from him when he refused to agree to support the compromise of

the Yazoo claims. Randolph declared that the plot to swindle Georgia out

of her lands "was hatched in Philadelphia and New York (and I believe

Boston....) and the funds with which it was effected were principally

furnished by moneyed capitalists in those towns."[1463]

At last the resolution was adopted by a majority of 63 to 58,[1464] and

Randolph, physically exhausted and in despair at his overthrow as

dictator of the House, went to his ineffective management of the Chase

impeachment trial.[1465] He prevented for the time being, however, the

passage of the bill to carry out the compromise with the Yazoo

claimants. He had mightily impressed the people, especially those of

Virginia. The Richmond _Enquirer_, on October 7, 1806, denounced the

Yazoo fraud and the compromise of the investors' claims as a "stupendous

scheme of plunder." Senator Giles, in a private conversation with John

Quincy Adams, asserted that "not a man from that State, who should give

any countenance to the proposed compromise, could obtain an election

after it." He avowed that "nothing since the Government existed had so

deeply affected him."[1466]

The debate was published fully in the newspapers of Washington, and it

is impossible that Marshall did not read it and with earnest concern. As

has already been stated, the first case involving the sale of these

Georgia lands had been dropped because of the Eleventh Amendment to the

Constitution, abolishing the right to sue a state in the National

courts. Moreover, Marshall was profoundly interested in the stability of

contractual obligations. The repudiation of these by the Legislature of

Virginia had powerfully and permanently influenced his views upon this

subject.[1467] Also, Marshall's own title to part of the Fairfax estate

had more than once been in jeopardy.[1468] At that very moment a suit

affecting the title of his brother to certain Fairfax lands was pending

in Virginia courts, and the action of the Virginia Court of Appeals in

one of these was soon to cause the first great conflict between the

highest court of a State and the supreme tribunal of the Nation.[1469]

No man in America, therefore, could have followed with deeper anxiety

the Yazoo controversy than did John Marshall.

Again and again, session after session, the claimants presented to

Congress their prayers for relief. In 1805, Senator John Quincy Adams of

Massachusetts and Senator Thomas Sumter of South Carolina urged the

passage of a bill to settle the claims. This led Senator James Jackson

of Georgia to deliver "a violent invective against the claims, without

any specific object."[1470] After Jackson's death the measure passed the

Senate by a vote of 19 to 11, but was rejected in the House by a

majority of 8 out of a total of 116.[1471]

Among the lawyers who went to Washington for the New England Mississippi

Company was a young man not yet thirty years of age, Joseph Story of

Massachusetts, who on his first visit spent much time with Madison,

Gallatin, and the President.[1472] On a second visit, Story asked to

address the House on the subject, but that body refused to hear

him.[1473]

From the first the New England investors had wished for a decision by

the courts upon the validity of their titles and upon the effect of the

rescinding act of the Georgia Legislature; but no way had occurred to

them by which they could secure such a determination from the bench. The

Eleventh Amendment prevented them from suing Georgia; and the courts of

that State were, as we have seen, forbidden by the rescinding act from

entertaining such actions.

To secure a judicial expression, the Boston claimants arranged a

"friendly" suit in the United States Court for the District of

Massachusetts. One John Peck of Boston had been a heavy dealer in

Georgia lands.[1474] On May 14, 1803, he had either sold or pretended to

sell to one Robert Fletcher of Amherst, New Hampshire, fifteen thousand

acres of his holdings for the sum of three thousand dollars. Immediately

Fletcher brought suit against Peck for the recovery of this purchase

money; but the case was "continued by consent" for term after term from

June, 1803, until October, 1806.[1475]

The pleadings[1476] set forth every possible phase of the entire subject

which could be considered judicially. Issues were joined on all points

except that of the title of Georgia to the lands sold.[1477] On this

question a jury, at the October term, 1806, returned as a special

verdict a learned and bulky document. It recited the historical

foundations of the title to the territory in dispute; left the

determination of the question to the court; and, in case the judge

should decide that Georgia's claim to the lands sold was not valid,

found for the plaintiff and assessed his damages at the amount alleged

to have been paid to Peck.

Thereafter the case was again "continued by consent" until October,

1807, when Associate Justice William Cushing of the Supreme Court,

sitting as Circuit Judge, decided in Peck's favor every question raised

by the pleadings and by the jury's special verdict. Fletcher sued out a

writ of error to the Supreme Court of the United States, and so this

controversy came before John Marshall. The case was argued twice, the

first time, March 1-4, 1809, by Luther Martin for Fletcher and by Robert

Goodloe Harper and John Quincy Adams for Peck. There was no decision on

the merits because of a defect of pleadings which Marshall permitted

counsel to remedy.[1478]

During this argument the court adjourned for two hours to attend the

inauguration of James Madison. For the third time Marshall administered

the Presidential oath. At the ball that night, Judge Livingston told

Adams that the court had been reluctant "to decide the case at all, as

it appeared manifestly made up for the purpose of getting the Court's

judgment upon all the points." The Chief Justice himself had mentioned

the same thing to Cranch.

Adams here chronicles an incident of some importance. After delivering

the court's opinion on the pleadings, Marshall "added verbally, that,

circumstanced as the Court are, only five judges attending,[1479] there

were difficulties which would have prevented them from giving any

opinion at this term had the pleadings been correct; and the Court the

more readily forbore giving it, as from the complexion of the pleadings

they could not but see that at the time when the covenants were made the

parties had notice of the acts covenanted against."[1480]

The cause was argued again a year later. This time Joseph Story, so

soon thereafter appointed an Associate Justice, took the place of John

Quincy Adams. Martin's address was technical and, from the record,

appears to have been perfunctory.[1481] On behalf of Peck, two thirds of

the argument for the soundness of his title was devoted to the

demonstration of the validity of that of Georgia. If that were sound,

said Story, the Legislature had a right to sell the land, and a

subsequent Legislature could not cancel the contract when executed. The

Judiciary alone could declare what a law is or had been. Moreover, the

National Constitution expressly forbade a State to pass an act impairing

the obligation of contracts. To overthrow a law because it was corruptly

enacted "would open a source of litigation which could never be closed."

However, "the parties now before the court are innocent of the fraud, if

any has been practiced. They were bona fide purchasers, for a valuable

consideration, without notice of fraud. They cannot be affected by

it."[1482]

On March 16, 1810, Marshall delivered the opinion of the majority of the

Supreme Court. In this he laid the second stone in the structure of

American Constitutional law which bears his name. He held that the

Georgia rescinding act was a violation of the contract clause of the

Constitution and in doing so asserted that courts cannot examine the

motives that induce legislators to pass a law. In arriving at these

profoundly important conclusions his reasoning was as follows:

Did the Georgia sale act of 1795 violate the Constitution of that State?

An act of a legislature was not to be set aside "lightly" on "vague

conjecture" or "slight implication." There was no ground for asserting

that the Georgia Legislature transcended its constitutional powers in

passing the sale act.[1483] Had the corruption of the Legislature

destroyed the title of Peck, an innocent purchaser? It was, cautiously

said Marshall, doubtful "how far the validity of a law depends upon the

motives of its framers," particularly when the act challenged authorized

a contract that was executed according to the terms of it. Even if such

legislation could be set aside on the ground of fraud in the enactment

of it, to what extent must the impurity go?

"Must it be direct corruption, or would interest or undue influence of

any kind be sufficient? Must the vitiating cause operate on a majority,

or on what number of the members? Would the act be null, whatever might

be the wish of the nation, or would its obligation or nullity depend

upon the public sentiment?"

The State of Georgia did not bring this action; nor, "by this count" of

the complaint, did it appear that the State was dissatisfied. On the

face of the pleadings a purchaser of Georgia land declares that the

seller had no title because "some of the members of the legislature were

induced to vote in favor of the law, which constituted the contract

[with the original grantees], by being promised an interest in it, and

that therefore the act is a mere nullity." A tribunal "sitting as a

court of law" cannot decide, in a suit between private parties, that the

law of a State "is a nullity in consequence of the impure motives which

influenced certain members of the legislature which passed the

law."[1484] Conceding, for the sake of argument, that "the original

transaction was infected with fraud," the purchasers from the land

companies were innocent according to the records before the court. Yet,

if the rescinding act were valid, it "annihilated their rights.... The

legislature of Georgia was a party to this transaction; and for a party

to pronounce its own deed invalid" was an assertion "not often heard in

courts of justice." It was true, as urged, that "the real party ... are

the people"; but they can act only through agents whose "acts must be

considered as the acts of the people." Should these agents prove

unfaithful, the people can choose others to undo the nefarious work, "if

their contracts be examinable" by legislation.[1485]

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.

"I have been very unwilling," he said, "to proceed to the decision of

this cause at all. It appears to me to be[ar] strong evidence, upon the

face of it, of being a mere feigned case. It is our duty to decide upon

the rights but not upon the speculations of parties. My confidence,

however, in the respectable gentlemen who have been engaged for the

parties, had induced me to abandon my scruples, in the belief that they

would never consent to impose a mere feigned case upon this

court."[1490]

One cannot patiently read these words. Far better had Justice William

Johnson denounced Fletcher _vs._ Peck for what everybody believed it to

be, and what it really was, or else had refrained from raising the

question, than in these unctuous sentences to have shifted the

responsibility upon the shoulders of the attorneys who appeared before

the Supreme Bench. The conclusion seems inescapable that had not

Jefferson, who placed Johnson on the Supreme Bench, and Jefferson's

Secretary of State and political legatee, James Madison, ardently

desired the disposition which Marshall made of the case, Justice Johnson

would have placed on record a stronger statement of the nature of this

litigation.

The fact that Marshall rendered an opinion, under the circumstances, is

one of the firmest proofs of his greatness. As in Marbury _vs._ Madison,

the supremacy of the National Judiciary had to be asserted or its

inferiority conceded, so in Fletcher _vs._ Peck, it was necessary that

the Nation's highest court should plainly lay down the law of public

contract, notify every State of its place in the American system, and

announce the limitations which the National Constitution places upon

each State.

Failure to do this would have been to sanction Georgia's rescinding act,

to encourage other States to take similar action, and to render insecure

and litigious numberless titles acquired innocently and in good faith,

and multitudes of contracts entered into in the belief that they were

binding. A weaker man than John Marshall, and one less wise and

courageous, would have dismissed the appeal or decided the case on

technical points.

Marshall's opinion did more than affect the controversy in Congress over

the Yazoo lands. It announced fundamental principles for the guidance of

the States and the stabilizing of American business.[1491] It increased

the confidence in him of the conservative elements and of all

Nationalists. But, for the same reason, it deepened the public distrust

of him and the popular hostility toward him.

Although Marshall's opinion gave steadiness to commercial intercourse at

a time when it was sadly needed, checked for the moment a flood of

contract-breaking laws, and asserted the supremacy of Nationalism over

Localism, it also strengthened many previous speculations that were at

least doubtful and some that were corrupt.[1492] Moreover, it furnished

the basis for questionable public grants in the future. Yet the good

effects of it fairly outweighed the bad. Also it taught the people to be

careful in the choice of their representatives in all legislative

bodies; if citizens will not select honest and able men as their public

agents, they must suffer the consequences of their indifference to their

own affairs.

Whatever may be thought of other aspects of this case, it must be

conceded that Marshall could not have disobeyed the plain command of the

Constitution which forbids any State to impair the obligation of

contracts. That the Georgia Legislature was guilty of such violation

even Jefferson's appointee, Justice Johnson, declared more emphatically

than did Marshall himself. If Johnson had asserted that a legislative

grant, accepted by the grantee, was not a contract, Marshall's opinion

would have been fatally wounded.

It had now been Marshall's fate to deliver opinions in three cases[1493]

which helped to assure his future fame, but which, at the moment, were

highly unwelcome to the people. Throughout the country, at the end of

the first decade of the nineteenth century, a more unpopular person

could not have been found than that wise, brave, gentle man, the Chief

Justice of the United States.

Marshall's opinion and the decision of the court had no practical effect

whatever, so far as the legal result of it was concerned, but it had

some influence in the settlement of the controversy by Congress. The

Eleventh Congress was in session when Fletcher _vs._ Peck was decided,

and the New England Yazoo claimants immediately presented another

petition for relief. Soon after Marshall's opinion was published,

Randolph moved that the New England memorial be referred to the

Committee of Claims with instructions to report to the House. The

matter, he said, must not go by default. He wanted nothing "done,

directly or indirectly, by any act of commission or omission, that

should give any the slightest degree of countenance to that claim."

Randolph thus brought Marshall's opinion before the House: "A judicial

decision, of no small importance, had, during the present session of

Congress, taken place in relation to that subject." To let the business

rest, particularly at this time, "would wear the appearance abroad of

acquiescence [by the House] in that judicial decision." The Yazoo

claimants must not be allowed to profit in this way by the action of the

Supreme Court as they would surely do if not prevented, since "never has

a claim been pressed upon the public with such pertinacity, with such

art, with such audacity."[1494]

George M. Troup of Georgia, slender, handsome, fair-haired,[1495] then

thirty years old and possessing all the fiery aggressiveness of youth,

sprang to his feet to add his reproof of Marshall and the Supreme Court.

He declared that the opinion of the Chief Justice, in Fletcher _vs._

Peck, was a pronouncement "which the mind of every man attached to

Republican principles must revolt at."[1496]

Because the session was closing and from pressure of business, Randolph

withdrew his motion to refer the memorial to the Committee, and offered

another: "That the prayer of the petition of the New England Mississippi

Land Company is unreasonable, unjust, and ought not to be granted."

This, if passed, would amount to a condemnation by the House of the

decision of the Supreme Court of the United States. All Federalists and

conservative Republicans combined to defeat it, and the resolution was

lost by a vote of 46 yeas to 54 nays.[1497]

But Troup would not yield. On December 17 he insisted that the National

Government should resist by force of arms the judgment of the Supreme

Court. The title to the lands was in the United States, he said, yet the

court had decided it to be in the Yazoo claimants. "This decision must

either be acquiesced in or resisted by the United States.... If the

Government ... would not submit to this decision, ... what course could

be taken but to employ the whole military force ... to eject all persons

not claiming under the authority of the United States?" Should those "in

whose behalf" Marshall's opinion was rendered, take possession, either

the National Government must "remove them by ... military power, or

tamely acquiesce in the lawless aggression."[1498]

But Marshall and the Supreme Court were to be attacked still more openly

and violently. Strengthened by the decision in Fletcher _vs._ Peck, the

Yazoo claimants pressed Congress harder than ever for payment. On

January 20, 1813, a bill from the Senate providing for the payment of

the claims came up for consideration in the House.

Troup instantly took the floor, moved its rejection and delivered such

an excoriation of the Supreme Court as never before was or has since

been heard in Congress. He began by reciting the details of the "hideous

corruption." Such legislation was void _ab initio_. The original

speculators had made fortunes out of the deal, and now Congress was

asked to make the fortunes of the second-hand speculators. For years the

House had, most righteously, repelled their audacious assaults; but now

they had devised a new weapon of attack.

They had secured the assistance of the Judiciary. "Two of the

speculators combined and made up a fictitious case, a feigned issue for

the decision of the Supreme Court," asserted Troup. "They presented

precisely those points for the decision of the Court which they wished

the Court to decide, and the Court did actually decide them as the

speculators themselves would have decided them if they had been in the

place of the Supreme Court.

"The first point was, whether the Legislature of Georgia had the _power_

to sell the territory.

"Yes, said the Judges, they had.

"Whether by the Yazoo act an estate did vest in the original grantees?

"Yes, said the Judges, it did.

"Whether it was competent to any subsequent Legislature to set aside the

act on the ground of fraud and corruption?

"No, said the Judges, it was not.... No matter, say the Judges, what the

nature or extent of the corruption, ... be it ever so nefarious, it

could not be set aside....

"The [legal] maxim that third purchasers without notice shall not be

affected by the fraud of the original parties" had, declared Troup, been

wielded by the Judges for the benefit of the speculators and to the ruin

of the country.

"Thus, sir, by a maxim of English law are the rights and liberties of

the people of this country to be corruptly bartered by their

Representatives.

"It is this decision of the Judges which has been made the basis of the

bill on your table--a decision shocking to every free Government,

sapping the foundations of all your constitutions, and annihilating at a

breath the best hope of man.

"Yes, sir," exclaimed the deeply stirred and sincerely angered Georgian,

"it is proclaimed by the Judges, and is now to be sanctioned by the

Legislature, that the Representatives of the people may corruptly betray

the people, may corruptly barter their rights and those of their

posterity, and the people are wholly without any kind of remedy

whatsoever.

"It is this monstrous and abhorrent doctrine which must startle every

man in the nation, that you ought promptly to discountenance and

condemn."

In such fashion the enraged Troup ran on; and he expressed the

sentiments of the vast majority of the inhabitants of the United States.

The longer the Georgia champion of popular justice and the rights of the

States talked, the more unrestrained became his sentiments and his

expression of them: "If, Mr. Speaker, the arch-fiend had in ... his

hatred to mankind resolved the destruction of republican government on

earth, he would have issued a decree like that of the judges"--the

opinion of John Marshall in Fletcher _vs._ Peck. "Why ... do the judges

who passed this decision live and live unpunished?... The foundations of

the Republic are shaken and the judges sleep in tranquillity at home....

The question ... had been so often discussed" that it was "well

understood by every man in the nation." Troup prophesied, therefore,

that "no party in this country, however deeply seated in power, can long

survive the adoption of this measure."[1499]

But the Federalist-Jeffersonian Yazoo coalition held firm and Troup's

motion to reject the Senate Yazoo bill was lost by a vote of 55 to

59.[1500] The relief bill was delayed, however, and the claimants were

compelled to nurse their eighteen-year-old disappointment until another

session of Congress convened.

The following year the bill to settle the Yazoo claims was again

introduced in the Senate and passed by that body without opposition. On

February 28, 1814, the measure reached the House.[1501] On the second

reading of it, Troup despairingly moved that the bill be rejected. The

intrepid and resourceful John Randolph had been beaten in the preceding

Congressional election, the House no longer echoed with his fearless

voice, and his dominant personality no longer inspired his followers or

terrified his enemies. Troup could not bend the mighty bow that Randolph

had left behind and that he alone could draw. But the dauntless Georgian

did his best. Once more he went over the items of this "circle of

fraud," as he branded it. Success of the "plunderers" now depended on

the affirmation by Congress of Marshall's opinion, which, said Troup,

"overturns Republican Government. You cannot, you dare not, sanctify

this doctrine." If you do so, then "to talk of the rights of the people

after this is insult and mockery."[1502]

Long did Troup argue and denounce. He could not keep his eager fingers

from the throat of John Marshall and the Supreme Court. "The case of

Fletcher and Peck was a decision of a feigned issue, made up between two

speculators, to decide certain points, in the decision of which they

were interested.... Whenever it is conceded that it is competent to the

Supreme Court, in a case between A and B, to take from the United States

fifty [_sic_] millions of acres of land, it will be time for the

Government to make a voluntary surrender of the public property to

whosoever will have it.... Sir, I am tired and disgusted with this

subject."[1503]

Robert Wright of Maryland urged the passage of the bill.

"He ... dwelt ... on the sanctity of the title of the present claimants

under the decision of the Supreme Court, against whose awards he hoped

never to see the bayonet employed. He feared not to advocate this bill

on account of the clamor against it. Let justice be done though the

heavens fall."[1504]

Weaker and ever weaker grew the assaults of the opponents against

Marshall's opinion and the bill to reimburse the Yazoo claimants. In

every case the speakers supported or resisted the bill solely according

to the influence of their constituents. Considerations of local

politics, and not devotion to the Constitution or abhorrence of fraud,

moved the Representatives. The House voted, 56 to 92, against Troup's

motion to reject the bill.[1505] Finally the measure was referred to a

select committee, with instructions to report.[1506] Almost immediately

this committee reported in favor of the Yazoo claimants.[1507] No time

was lost and the friends of the bill now crowded the measure to a vote

with all the aggressive confidence of an assured majority. By a vote of

84 yeas to 76 nays, five millions of dollars were appropriated for

reimbursement to the purchasers of the Yazoo lands.[1508]

Daniel Webster, who was serving his first term in the House and

supported the bill, thus describes the situation at the time of its

passage: "The Yazoo bill is through, passed by eight majority. It

excited a great deal of feeling. All the Federalists supported the bill,

and some of the Democrats. Georgians, and some Virginians and

Carolinians, opposed it with great heat.... Our feeling was to get the

Democratic support of it."[1509]

Thus John Marshall's great opinion was influential in securing from

Congress the settlement of the claims of numerous innocent investors who

had, in good faith, purchased from a band of legislative corruptionists.

Of infinitely more importance, however, is the fact that Marshall's

words asserted the power of the Supreme Court of the United States to

annul State laws passed in violation of the National Constitution, and

that throughout the Republic a fundamental principle of the law of

public contract was established.

FOOTNOTES:

[1359] See _infra_, 550.

[1360] Affidavit of Clem Lanier, _Am. State Papers, Public Lands_, I,

145.

[1361] Affidavit of Peter L. Van Allen, _ib._

[1362] _Ib._ It would appear that one hundred and fifty thousand acres

were allotted to the thrifty Scotch legislator. He sold them for $7500.

[1363] Affidavit of John Thomas, Jr., _Am. State Papers, Public Lands_,

I, 148.

[1364] Affidavit of Philip Clayton, _ib._ 146.

[1365] Affidavit of John Shepperd, _ib._

[1366] About sixty affidavits were made to show the venality of members

of the Legislature. Of these, twenty-one are printed in _ib._ 144-49.

[1367] Harris: _Georgia from the Invasion of De Soto to Recent Times_,

127-28; White: _Statistics of the State of Georgia_, 50; Chappell:

_Miscellanies of Georgia_, 93-95.

These writers leave the unjust inference that Wilson was one of those

who were corrupting the Legislature. This is almost certainly untrue.

For a quarter of a century Wilson had been a heavy speculator in Indian

lands, and it appears reasonable that he took this money to Augusta for

the purpose of investment. When the deal was consummated, the Justice

held shares to the amount of at least three quarters of a million of

acres. (Chappell, 94.)

[1368] _Ib._ 95.

[1369] Gunn's reëlection was the first step in the conspiracy. Not until

that was accomplished was a word said about the sale of the lands.

Immediately after the Legislature had chosen Gunn for a second term in

the National Senate, however, the bill was introduced and the campaign

of intimidation and bribery launched, to force its passage. (_Ib._

82-83.)

[1370] See Mathews's reasons, as quoted in the Rescinding Act of 1796,

_Am. State Papers, Public Lands_, I, 156.

[1371] Chappell, 86.

[1372] The claims of Spain to the territory had been a serious cloud on

the title. In October, 1795, the treaty with the Spanish Government,

which removed this defect, was published. Senator James Gunn had

knowledge that the treaty would be negotiated long before it was made

known to the world or even concluded. This fact was one of the reasons

for the mad haste with which the corrupt sale act was rushed through the

Georgia Legislature. (See Chappell, 72-73.)

[1373] Gunn was a perfect example of the corrupt, yet able, bold, and

demagogical politician. He was a master of the arts alike of cajolery

and intimidation. For a vivid account of this man see Chappell, 99-105.

[1374] Haskins: _Yazoo Land Companies_, 24.

[1375] _Am. State Papers, Public Lands_, I, 151-52.

[1376] Chappell, 87.

[1377] "A small smoky cabin with a dirt floor was the home of most of

them." (Smith: _Story of Georgia and the Georgia People_, 181.) For a

good description of pioneer houses and manner of living, see Ramsey:

_Annals of Tennessee to the End of the Eighteenth Century_, 715-16.

[1378] Smith, 170-71.

[1379] Morse's _American Gazetteer_, as quoted in Bishop: _Georgia

Speculation Unveiled_, 3-4.

[1380] Adams: _U.S._ I, 303.

[1381] The South Carolina Yazoo Company, 10,000,000 acres for $66,964;

The Virginia Yazoo Company, 11,400,000 acres for $93,741; The Tennessee

Company, 4,000,000 acres for $46,875. (Haskins, 8.)

[1382] _Works_: Ford, VI, 55-57.

[1383] Moultrie _vs._ Georgia, 1796, dismissed in 1798, _Am. State

Papers, Public Lands_, I, 167; and see vol. II, 83-84, of this work.

[1384] Chappell, 92-93.

[1385] _Ib._ 67-68; Haskins, 13-15.

[1386] "No men stood higher in Georgia than the men who composed these

several companies and the members of the Legislature who made the sale."

(Smith, 173.)

[1387] See Haskins, 25, and sources there cited.

[1388] The effect of Whitney's invention is shown in striking fashion by

the increase of cotton exports. In 1791 only 189,500 pounds were

exported from the entire United States. Ten years later Georgia alone

exported 3,444,420 pounds. (Jones and Dutcher: _Memorial History of

Augusta, Georgia_, 165.)

[1389] Priest: _Travels in the United States_, 132; and see Haskins, 3.

Otis speaks of the "land jobbing prospectors," and says that "money is

the object here [Boston] with all ranks and degrees." (Otis to Harper,

April 10, 1807, Morison: _Otis_, I, 283.)

The national character "is degenerated into a system of stock-jobbing,

extortion and usury.... By the God of Heaven, if we go on in this way,

our nation will sink into disgrace and slavery." (Tyler to Madison, Jan.

15, 1810, Tyler, I, 235.)

[1390] See vol. I, 428, of this work.

[1391] It was, however, among the last items proposed to the Convention,

which had been at work more than three months before the "contract

clause" was suggested. Even then the proposal was only as to _new_

States. The motion was made by Rufus King of New York on August 28.

Gouverneur Morris objected. "This would be going too far," he said.

George Mason of Virginia said the same thing. Madison thought "a

negative on the State laws could alone secure the effect." James Wilson

of Pennsylvania warmly supported King's motion. John Rutledge of South

Carolina moved, as a substitute for King's proposition, that States

should not pass "bills of attainder nor retrospective laws." (_Records,

Fed. Conv._: Farrand, II, 440.) This carried, and nothing more appears

as to the contract clause until it was included by the Committee on

Style in its report of September 12. (_Ib._ 596-97.) Elbridge Gerry of

Massachusetts strongly favored it and even wanted Congress "to be laid

under the like prohibitions." (_Ib._ 619.) The Convention refused to

insert the word "previous" before "obligation." (_Ib._ 636.)

In this manner the provision that "no state shall pass any law impairing

the obligation of contracts" was inserted in the Constitution. The

framers of that instrument apparently had in mind, however, the danger

of the violation of contracts through depreciated paper money rather

than the invalidation of agreements by the direct action of State

Legislatures. (See speech of William R. Davie in the North Carolina

Convention, July 29, 1788, _ib._ III, 349-50; speech of James McHenry

before the Maryland House of Delegates, Nov. 29, 1787, _ib._ 150; and

speech of Luther Martin before same, same date, _ib._ 214; also see

Madison to Ingersoll, Feb. 2, 1831, _ib._ 495.)

Madison best stated the reason for the adoption of the contract clause:

"A violations [_sic_] of Contracts had become familiar in the form of

depreciated paper made a legal tender, of property substituted for

money, of Instalment laws, and of the occlusions of the Courts of

Justice; although evident that all such interferences affected the

rights of other States, relatively Creditor, as well as Citizens

Creditors within the State." (_Ib._ 548.) Roger Sherman and Oliver

Ellsworth explained briefly that the clause "was thought necessary as a

security to commerce." (Letter to the Governor of Connecticut, Sept. 26,

1787, _ib._ 100.)

[1392] Chappell, 67.

[1393] Harris, 130.

[1394] Harris, 131.

[1395] Feb. 27, 1795, _Annals_, 3d Cong. 1st and 2d Sess. 838-39.

[1396] _Ib._ 844-45. The silence of Jackson at this time is all the more

impressive because the report of the Attorney-General would surely be

used by the land companies to encourage investors to buy. Both Jackson

and Gunn were present when King offered his resolution. (_Annals_, 3d

Cong. 1st and 2d Sess. 846.) Jackson declined to vote on the passage of

a House bill "making provision for the purposes of treaty" with the

Indians occupying the Yazoo lands. (_Ib._ 849-50.)

[1397] Smith, 174.

[1398] Robert Watkins.

[1399] See Report of the Commissioners, _Am. State Papers, Public

Lands_, I, 132-35.

[1400] The "Yazoo men" carried two counties.

[1401] Chappell, 126.

[1402] The outgoing Governor, George Mathews, in his last message to the

Legislature, stoutly defended his approval of the sale act. He

attributed the attacks upon him to "base and malicious reports,"

inspired by "the blackest and the most persevering malice aided by

disappointed avarice." The storm against the law was, he said, due to

"popular clamour." (Message of Governor Mathews, Jan. 28, 1796, Harper:

_Case of the Georgia Sales on the Mississippi Considered_, 92-93.)

[1403] _Am. State Papers, Public Lands_, I, 157.

[1404] _Ib._ 158.

[1405] _Am. State Papers, Public Lands_, I, 158.

[1406] The punctilious Legislature failed to explain that one hundred

thousand dollars of the purchase money had already been appropriated and

expended by the State. This sum they did not propose to restore.

[1407] "Or his deputy."

[1408] Report of the joint committee, as quoted in Stevens: _History of

Georgia from its First Discovery by Europeans to the Adoption of the

Present Constitution in 1798_, II, 491-92.

[1409] Stevens, 492-93. Stevens says that there is no positive proof of

this incident; but all other writers declare that it occurred. See

Knight: _Georgia's Landmarks, Memorials and Legends_, I, 152-53; also

Harris, 135.

[1410] Adams: _Randolph_, 23; also Garland: _Life of John Randolph of

Roanoke_, I, 64-68.

[1411] See _infra_, 577-81; and _supra_, chap. IV.

[1412] For instance, Wade Hampton immediately sold the entire holdings

of The Upper Mississippi Company, millions of acres, to three South

Carolina speculators, and it is quite impossible that they did not know

of the corruption of the Georgia Legislature. Hampton acquired from his

partners, John B. Scott and John C. Nightingale, all of their interests

in the company's purchase. This was done on January 16 and 17,

immediately after Governor Mathews had signed the deed from the State.

Seven weeks later, March 6, 1795, Hampton conveyed all of this land to

Adam Tunno, James Miller, and James Warrington. (_Am. State Papers,

Public Lands_, I, 233.) Hampton was a member of Congress from South

Carolina.

[1413] _State of Facts, shewing the Right of Certain Companies to the

Lands lately purchased by them from the State of Georgia._

[1414] The Georgia Mississippi Company, The Tennessee Company, and The

Georgia Company. (See Haskins, 29.)

[1415] Eleven million acres were purchased at eleven cents an acre by a

few of the leading citizens of Boston. This one sale netted the Yazoo

speculators almost a million dollars, while the fact that such eminent

men invested in the Yazoo lands was a strong inducement to ordinary

people to invest also. (See Chappell, 109.)

[1416] See Chappell, 110-11.

[1417] Ames to Gore, Feb. 24, 1795, Ames, I, 168. Ames's alarm, however,

was that the Georgia land sale "threatens Indian, Spanish, and civil,

wars." The immorality of the transaction appears to have been unknown to

him.

[1418] Haskins, 30.

[1419] Harper, 109. Hamilton's opinion is dated March 25, 1796. In

Harper's pamphlet it is incorrectly printed 1795.

[1420] _Annals_, 3d Cong. 1st and 2d Sess. 1231.

[1421] _Annals_, 3d Cong. 1st and 2d Sess. 1251-54. The Georgia act was

transmitted to Washington privately.

[1422] _Ib._ 1255, 1262-63.

[1423] _Ib._ 1282-83.

[1424] _Am. State Papers, Public Lands_, I, 341.

[1425] _Ib._ 71.

[1426] Bishop's pamphlet was called _Georgia Speculation Unveiled_.

[1427] Bishop, 6.

[1428] _Ib._ 11.

[1429] _Ib._

[1430] _Ib._ 29-32.

[1431] _Ib._ 92.

[1432] _Ib._ 144.

[1433] Harper's opinion bears, opposite his signature, this statement:

"Considered at New-York August 3d, 1796." Beyond all doubt it had been

submitted to Hamilton--perhaps prepared in collaboration with him.

Harper was himself a member of one of the purchasing companies and in

the House he later defended the transaction. (See _Annals_, 5th Cong. 2d

Sess. 1277.)

[1434] Harper, 16.

[1435] _Ib._ 14.

[1436] _Ib._ 49-50.

[1437] _Ib._ 50. Here Harper quotes Hamilton's opinion.

[1438] _Ib._ 50-53. Harper's pamphlet is valuable as containing, in

compact form, all the essential documents relating to Georgia's title as

well as the sale and rescinding acts. Other arguments on both sides

appeared. One of the ablest of these was a pamphlet by John E. Anderson

and William J. Hobby, attorneys of Augusta, Georgia, and published at

that place in 1799 "at the instance of the purchasers." It is entitled:

_The Contract for the Purchase of the Western Territory Made with the

Legislature of Georgia in the Year 1795, Considered with a Reference to

the Subsequent Attempts of the State to Impair its Obligations_.

[1439] See report of Attorney-General Charles Lee, April 26, 1796, _Am.

State Papers, Public Lands_, I, 34; report of Senator Aaron Burr, May

20, 1796, _ib._ 71; report of Senator James Ross, March 2, 1797, _ib._

79.

[1440] Except by John Milledge of Georgia, who declared that "there was

no legal claim upon ... any part of that territory." Robert Goodloe

Harper said that that question "must be determined in a Court of

Justice," and argued for an "amicable settlement" of the claims. He

himself once had an interest in the purchase, but had disposed of it

three years before when it appeared that the matter must come before

Congress (_Annals_, 5th Cong. 2d Sess. 1277-78); the debate occupied

parts of two days (see also _ib._ 1298-1313). In view of the heated

controversy that afterward occurred, it seems scarcely credible that

almost no attention was given in this debate to the fraudulent character

of the transaction.

[1441] May 10 1800, Sess. I, chap. 50, _U.S. Statutes at Large_, II, 69.

[1442] The entire commission was composed of three of the five members

of Jefferson's Cabinet, to wit: James Madison, Secretary of State;

Albert Gallatin, Secretary of the Treasury; and Levi Lincoln,

Attorney-General.

[1443] Report of the Commissioners, _Am. State Papers, Public Lands_, I,

132-35. "The interest of the United States, the tranquillity of those

who may hereafter inhabit that territory, and various equitable

considerations which may be urged in favor of most of the present

claimants, render it expedient to enter into a compromise on reasonable

terms."

[1444] _Annals_, 8th Cong. 1st Sess. 1039-40.

[1445] _Ib._ 1099-1122, 1131-70.

[1446] Perez Morton and Gideon Granger. Morton, like Granger, was a

Republican and a devoted Jeffersonian. He went annually to Washington to

lobby for the Yazoo claimants and assiduously courted the President. In

Boston the Federalists said that his political activity was due to his

personal interest in the Georgia lands. (See _Writings, J. Q. A._: Ford,

III, 51-53.)

[1447] _Memorial of the Agents of the New England Mississippi Company to

Congress, with a Vindication of their Title at Law annexed_.

[1448] This document, issued in pamphlet form in 1804, is highly

important. There can be little doubt that Marshall read it attentively,

since it proposed a submission of the acrimonious controversy to the

Supreme Court.

[1449] The Postmaster-General was not made a member of the Cabinet until

1829.

[1450] See _supra_, chap. IV.

[1451] _Annals_, 8th Cong. 2d Sess. 1023.

[1452] Cutler, II, 182.

[1453] _Annals_, 8th Cong. 2d Sess. 1024. To such extravagance and

inaccuracy does the frenzy of combat sometimes drive the most honest of

men. When he made these assertions, John Randolph knew that scores of

purchasers from the land companies had invested in absolute good faith

and before Georgia had passed the rescinding act. His tirade done,

however, this inexplicable man spoke words of sound though misapplied

statesmanship.

[1454] _Ib._ 1029-30.

[1455] Referring to Granger's speculations in the Western Reserve.

[1456] The Yazoo deal.

[1457] _Annals_, 8th Cong. 2d Sess. 1031.

[1458] Findley was one of those who led the fight against the

ratification of the Constitution in the Pennsylvania Convention. (See

vol. I, 327-38, of this work.)

[1459] James Wilson.

[1460] James Gunn.

[1461] _Annals_, 8th Cong. 2d Sess. 1080-89.

[1462] Cutler, II, 182.

[1463] _Annals_, 8th Cong. 2d Sess. 1100-08.

[1464] _Ib._ 1173.

[1465] See _supra_, chap. IV.

[1466] _Memoirs, J. Q. A._: Adams, I, 343.

[1467] See vol. I, 224-41, of this work.

[1468] _Ib._ 191, 196; and vol. II, 206.

[1469] Martin _vs._ Hunter's Lessees; see vol. IV, chap, III, of this

work.

[1470] _Memoirs, J. Q. A._: Adams, I, 381; also see _ib._ 389, 392,

404-05, 408-09, 417-19.

[1471] Haskins, 38.

[1472] Story to Fay, May 30, 1807, Story, I, 150-53; and see Cabot to

Pickering, Jan. 28, 1808. Lodge: _Cabot_, 377.

[1473] _Annals_, 10th Cong. 1st Sess. 1601-13.

[1474] See Abstract, _Am. State Papers, Public Lands_, I, 220-34.

[1475] Records, U.S. Circuit Court, Boston.

[1476] Judge Chappell asserts that the pleadings showed, on the face of

them, that the case was feigned. (See Chappell, 135-36.)

[1477] Fletcher _vs._ Peck, 6 Cranch, 87-94.

[1478] Fletcher _vs._ Peck, 6 Cranch, 127.

[1479] Justices Chase and Cushing were absent because of illness.

[1480] _Memoirs, J. Q. A._: Adams, I, 546-47.

[1481] _Memoirs, J. Q. A._: Adams, I, 115.

On this occasion Martin was so drunk that the court adjourned to prevent

him from completing his argument. (See _Md. Hist. Soc. Fund-Pub. No.

24_, 35.) This was the first time that drink seems to have affected him

in the discharge of his professional duties. (See _supra_, footnote to

185-86.)

[1482] 6 Cranch, 123.

[1483] 6 Cranch, 128-29.

[1484] 6 Cranch, 130-31.

The Life of John Marshall, Volume 3: Conflict and construction, 1800-1815 · 第 12 / 13 章