The Life of John Marshall, Volume 3: Conflict and construction, 1800-1815

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."¹⁴⁰¹

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."¹⁴⁰²

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."¹⁴⁰³

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."¹⁴⁰⁴ 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 State¹⁴⁰⁵ … 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!!!!'"¹⁴⁰⁶

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."¹⁴⁰⁷

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.¹⁴⁰⁸ 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.¹⁴⁰⁹

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.¹⁴¹⁰ The most numerous sales were made in the Middle States and in New England. The land companies issued a prospectus,¹⁴¹¹ 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 companies¹⁴¹² 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.¹⁴¹³ 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.¹⁴¹⁴

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.¹⁴¹⁵ 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.¹⁴¹⁶

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."¹⁴¹⁷

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,¹⁴¹⁸ 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.¹⁴¹⁹

Two bills to protect the Indians failed of passage.¹⁴²⁰ 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.¹⁴²¹

A year later, Charles Lee, Washington's Attorney-General, transmitted to Congress an exhaustive report containing all facts.¹⁴²² 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.¹⁴²³ 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.¹⁴²⁴ Georgia had no fee in the lands, said Bishop.¹⁴²⁵ 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."¹⁴²⁶ Bishop discussed brilliantly, and at length, every possible question involved. The power of the State to pass and repeal laws was "wholly uncontrolable,"¹⁴²⁷ he asserted. The history of other dishonest and imprudent speculations was examined – the South Sea Bubble, the Mississippi Bubble,¹⁴²⁸ 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."¹⁴²⁹ 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."¹⁴³⁰

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.¹⁴³¹ 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.¹⁴³² It was pointed out that the rescinding act ignored this fact.¹⁴³³

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.¹⁴³⁴ The sale law was a contract, fully executed; one party to it could not break that compact.¹⁴³⁵ 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!"¹⁴³⁶

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.¹⁴³⁷ 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.¹⁴³⁸

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 law¹⁴³⁹ 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 commissioners¹⁴⁴⁰ 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.¹⁴⁴¹

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 1795.¹⁴⁴² 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.¹⁴⁴³

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 Company¹⁴⁴⁴ presented its case with uncommon ability. In a memorial to Congress¹⁴⁴⁵ 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.¹⁴⁴⁶

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.¹⁴⁴⁷ 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 Chase¹⁴⁴⁸ 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.¹⁴⁴⁹ Randolph took the floor, and a "fire and brimstone speech"¹⁴⁵⁰ 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.¹⁴⁵¹ 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."¹⁴⁵²

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,¹⁴⁵³ and stretches with the other to the Bay of Mobile.¹⁴⁵⁴ 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."¹⁴⁵⁵

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.¹⁴⁵⁶ 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,¹⁴⁵⁷ a United States Senator,¹⁴⁵⁸ 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?¹⁴⁵⁹

Randolph outdid himself in daring and ferocity when he again took the floor. His speech struck hostile spectators as "more outrageous than the first."¹⁴⁶⁰ 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."¹⁴⁶¹

At last the resolution was adopted by a majority of 63 to 58,¹⁴⁶² 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.¹⁴⁶³ 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."¹⁴⁶⁴

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.¹⁴⁶⁵ Also, Marshall's own title to part of the Fairfax estate had more than once been in jeopardy.¹⁴⁶⁶ 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.¹⁴⁶⁷ 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."¹⁴⁶⁸ 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 116.¹⁴⁶⁹

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.¹⁴⁷⁰ On a second visit, Story asked to address the House on the subject, but that body refused to hear him.¹⁴⁷¹

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.¹⁴⁷² 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, 1806.¹⁴⁷³

The pleadings¹⁴⁷⁴ 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.¹⁴⁷⁵ 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.¹⁴⁷⁶