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

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

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,1477 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."1478

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.1479 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."1480

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.1481 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."1482 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.1483

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 Legislature1484 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."1485

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.