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

"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."1486

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.1487 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."1488

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.1489 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.1490 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 cases1491 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."1492

George M. Troup of Georgia, slender, handsome, fair-haired,1493 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."1494

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.1495

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."1496

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."1497

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 59.1498 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.1499 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."1500

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."1501

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."1502

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.1503 Finally the measure was referred to a select committee, with instructions to report.1504 Almost immediately this committee reported in favor of the Yazoo claimants.1505 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.1506

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."1507

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.

APPENDIX

APPENDIX A

The Paragraph Omitted from the Final Draft of Jefferson's Message to Congress, December 8, 1801 1508

Applications from different persons suffering prosecution under the act usually called the Sedition act, claimed my early attention to that instrument. our country has thought proper to distribute the powers of it's government among three equal & independent authorities, constituting each a check on one or both of the others, in all attempts to impair it's constitution. to make each an effectual check, it must have a right in cases which arise within the line of it's proper functions, where, equally with the others, it acts in the last resort & without appeal, to decide on the validity of an act according to it's own judgment, & uncontrouled by the opinions of any other department. we have accordingly, in more than one instance, seen the opinions of different departments in opposition to each other, & no ill ensue. the constitution moreover, as a further security for itself, against violation even by a concurrence of all the departments, has provided for it's own reintegration by a change of the persons exercising the functions of those department. Succeeding functionaries have the same right to judge of the conformity or non-conformity of an act with the constitution, as their predecessors who past it. for if it be against that instrument it is a perpetual nullity. uniform decisions indeed, sanctioned by successive functionaries, by the public voice, and by repeated elections would so strengthen a construction as to render highly responsible a departure from it. On my accession to the administration, reclamations against the Sedition act were laid before me by individual citizens, claiming the protection of the constitution against the Sedition act. called on by the position in which the nation had placed me, to exercise in their behalf my free & independent judgment, I took the act into consideration, compared it with the constitution, viewed it under every aspect of which I thought it susceptible, and gave to it all the attention which the magnitude of the case demanded. on mature deliberation, in the presence of the nation, and under the tie of the solemn oath which binds me to them & to my duty, I do declare that I hold that act to be in palpable & unqualified contradiction to the constitution. considering it then as a nullity, I have relieved from oppression under it those of my fellow-citizens who were within the reach of the functions confided to me. in recalling our footsteps within the limits of the Constitution, I have been actuated by a zealous devotion to that instrument. it is the ligament which binds us into one nation. It is, to the national government, the law of it's existence, with which it began, and with which it is to end. infractions of it may sometimes be committed from inadvertence, sometimes from the panic, or passions of a moment. to correct these with good faith, as soon as discovered, will be an assurance to the states that, far from meaning to impair that sacred charter of it's authorities, the General government views it as the principle of it's own life.1509

APPENDIX B

Letter of John Taylor "of Caroline" to John Breckenridge containing arguments for the Repeal of the Federalist National Judiciary Act of 1801 1510

Virginia – Caroline – Decr 22ḍ 1801

Dear Sir

An absence from home, when your letter arrived, has been the cause which delayed this answer.

I confess that I have not abstracted myself from the political world, but I must at the same time acknowledge, that this kind of world, of which I am a member, is quite distinct from that in which your country has placed you. Mine is a sort of metaphysical world, over which the plastick power of the imagination is unlimited – yours, being only physical, cannot be modulated by fancy. The ways of mine are smooth & soft; of yours, rugged & thorny. And a most prosperous traveller into the political world which I inhabit, generally becomes unfortunate if he wanders into the region of which you are now a resident. Yet, as a solicitation for the continuance of your correspondence, I will venture upon a short excursion out of my own atmosphere, in relation to the subject you state.

By way of bringing the point into plain view, I will suppose some cases. Suppose a congress and president should conspire to erect five times as many courts & judges, as were made by the last law, meerely for the sake of giving salaries to themselves or their friends, and should annex to each office, a salary of 100,000 dollars. Or suppose a president in order to reward his counsel on an impeachment, and the members of the senate who voted for his acquittal, had used his influence with the legislature to erect useless tribunals, paid by him in fees or bribes. Or, lastly, suppose a long list of courts and judges to be established, without any ill intention, but meerly from want of intellect in the legislature, which from experience are found to be useless, expensive and unpopular. Are all these evils originating either in fraud or error, remediless under the principles of your constitution?

The first question is, whether the office thus established, is to continue.

The second, whether the officer is to continue, after the office is abolished, as being unnecessary.

Congress are empowered "from time to time to ordain & establish inferior courts."

The law for establishing the present inferior courts, is a legislative construction, affirming that under this clause, congress may abolish as well as create these judicial offices; because it does expressly abolish the then existing inferior courts, for the purpose of making way for the present.

It is probable that this construction is correct, but it is equally pertinent to our object, whether it is or not. If it is, then the present inferior courts may be abolished, as constitutionally as the last; if it is not, then the law for abolishing the former courts, and establishing the present, was unconstitutional, and being so, is undoubtedly repealable.