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.