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

1350

Adams's colleague Senator Pickering was, of course, disgusted (see his letter to King, Jan. 2, 1808, King, v, 44), and in a pamphlet entitled "A Review of the Correspondence Between the Hon. John Adams and the late William Cunningham, Esq." which he published in 1824, Pickering wrote that the resolution "outraged … every distinguished lawyer in America" (see p. 41 of pamphlet). King thought Adams "indiscreet" (see his letter to Pickering, Jan. 7, 1808, King, v, 50). Plumer declared that the report "had given mortal offence" in New Hampshire (see Mass. Historical Society Proceedings, xlv, 357). John Lowell asserted that "justice … was to be dragged from her seat … and the eager minister of presidential vengeance seemed to sigh after the mild mercies of the star chamber, and the rapid movements of the revolutionary tribunal" (see his "Remarks" as quoted in Writings, J. Q. A.: Ford, iii, footnote to 184).

1351

Jan. 28, 1808, Memoirs, J. Q. A.: Adams, i, 508; see also Writings, J. Q. A.: Ford, iii, footnote to 184.

1352

"He poured himself forth in his two speeches to-day… It was all a phillipic upon me." (Jan. 7, 1808, Memoirs, J. Q. A.: Adams, i, 501.)

1353

Ib.

1354

Annals, 10th Cong. 1st Sess. 324.

1355

"Mr. Giles, in one of the most animated and eloquent speeches I ever heard him make, declared himself … against the resolution for expulsion. He argued the case of Mr. Smith with all his eloquence, and returned to the charge with increasing warmth until the last moment." (April 9, 1808, Memoirs, J. Q. A.: Adams, i, 528.)

1356

Annals, 10th Cong. 1st Sess. 321-24.

1357

See infra, 550.

1358

Affidavit of Clem Lanier, Am. State Papers, Public Lands, i, 145.

1359

Affidavit of Peter L. Van Allen, ib.

1360

Ib. It would appear that one hundred and fifty thousand acres were allotted to the thrifty Scotch legislator. He sold them for $7500.

1361

Affidavit of John Thomas, Jr., Am. State Papers, Public Lands, i, 148.

1362

Affidavit of Philip Clayton, ib. 146.

1363

Affidavit of John Shepperd, ib.

1364

About sixty affidavits were made to show the venality of members of the Legislature. Of these, twenty-one are printed in ib. 144-49.

1365

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.)

1366

Ib. 95.

1367

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.)

1368

See Mathews's reasons, as quoted in the Rescinding Act of 1796, Am. State Papers, Public Lands, i, 156.

1369

Chappell, 86.

1370

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.)

1371

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.

1372

Haskins: Yazoo Land Companies, 24.

1373

Am. State Papers, Public Lands, i, 151-52.

1374

Chappell, 87.

1375

"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.

1376

Smith, 170-71.

1377

Morse's American Gazetteer, as quoted in Bishop: Georgia Speculation Unveiled, 3-4.

1378

Adams: U.S. i, 303.

1379

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.)

1380

Works: Ford, vi, 55-57.

1381

Moultrie vs. Georgia, 1796, dismissed in 1798, Am. State Papers, Public Lands, i, 167; and see vol. ii, 83-84, of this work.

1382

Chappell, 92-93.

1383

Ib. 67-68; Haskins, 13-15.

1384

"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.)

1385

See Haskins, 25, and sources there cited.

1386

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.)

1387

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.)

1388

See vol. i, 428, of this work.

1389

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.)

1390

Chappell, 67.

1391

Harris, 130.

1392

Harris, 131.

1393

Feb. 27, 1795, Annals, 3d Cong. 1st and 2d Sess. 838-39.

1394

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.)

1395

Smith, 174.

1396

Robert Watkins.

1397

See Report of the Commissioners, Am. State Papers, Public Lands, i, 132-35.

1398

The "Yazoo men" carried two counties.

1399

Chappell, 126.

1400

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.)

1401

Am. State Papers, Public Lands, i, 157.

1402

Ib. 158.

1403

Am. State Papers, Public Lands, i, 158.

1404

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.

1405

"Or his deputy."

1406

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.

1407

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.

1408

Adams: Randolph, 23; also Garland: Life of John Randolph of Roanoke, i, 64-68.

1409

See infra, 577-81; and supra, chap. iv.

1410

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.

1411

State of Facts, shewing the Right of Certain Companies to the Lands lately purchased by them from the State of Georgia.

1412

The Georgia Mississippi Company, The Tennessee Company, and The Georgia Company. (See Haskins, 29.)

1413

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.)

1414

See Chappell, 110-11.

1415

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.

1416

Haskins, 30.

1417

Harper, 109. Hamilton's opinion is dated March 25, 1796. In Harper's pamphlet it is incorrectly printed 1795.

1418

Annals, 3d Cong. 1st and 2d Sess. 1231.

1419

Annals, 3d Cong. 1st and 2d Sess. 1251-54. The Georgia act was transmitted to Washington privately.

1420

Ib. 1255, 1262-63.

1421

Ib. 1282-83.

1422

Am. State Papers, Public Lands, i, 341.

1423

Ib. 71.

1424

Bishop's pamphlet was called Georgia Speculation Unveiled.

1425

Bishop, 6.

1426

Ib. 11.

1427

Ib.

1428

Ib. 29-32.

1429

Ib. 92.

1430

Ib. 144.

1431

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.)

1432

Harper, 16.

1433

Ib. 14.

1434

Ib. 49-50.

1435

Ib. 50. Here Harper quotes Hamilton's opinion.

1436

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.

1437

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.

1438

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.

1439

May 10 1800, Sess. i, chap. 50, U.S. Statutes at Large, ii, 69.

1440

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.

1441

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."

1442

Annals, 8th Cong. 1st Sess. 1039-40.

1443

Ib. 1099-1122, 1131-70.

1444

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.)

1445

Memorial of the Agents of the New England Mississippi Company to Congress, with a Vindication of their Title at Law annexed.

1446

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.

1447

The Postmaster-General was not made a member of the Cabinet until 1829.

1448

See supra, chap. iv.

1449

Annals, 8th Cong. 2d Sess. 1023.

1450

Cutler, ii, 182.

1451

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.

1452

Ib. 1029-30.

1453

Referring to Granger's speculations in the Western Reserve.

1454

The Yazoo deal.

1455

Annals, 8th Cong. 2d Sess. 1031.

1456

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.)

1457

James Wilson.

1458

James Gunn.

1459

Annals, 8th Cong. 2d Sess. 1080-89.

1460

Cutler, ii, 182.

1461

Annals, 8th Cong. 2d Sess. 1100-08.

1462

Ib. 1173.

1463

See supra, chap. iv.

1464

Memoirs, J. Q. A.: Adams, i, 343.

1465

See vol. i, 224-41, of this work.

1466

Ib. 191, 196; and vol. ii, 206.

1467

Martin vs. Hunter's Lessees; see vol. iv, chap, iii, of this work.

1468

Memoirs, J. Q. A.: Adams, i, 381; also see ib. 389, 392, 404-05, 408-09, 417-19.

1469

Haskins, 38.

1470

Story to Fay, May 30, 1807, Story, i, 150-53; and see Cabot to Pickering, Jan. 28, 1808. Lodge: Cabot, 377.

1471

Annals, 10th Cong. 1st Sess. 1601-13.

1472

See Abstract, Am. State Papers, Public Lands, i, 220-34.

1473

Records, U.S. Circuit Court, Boston.

1474

Judge Chappell asserts that the pleadings showed, on the face of them, that the case was feigned. (See Chappell, 135-36.)

1475

Fletcher vs. Peck, 6 Cranch, 87-94.

1476

Fletcher vs. Peck, 6 Cranch, 127.

1477

Justices Chase and Cushing were absent because of illness.

1478

Memoirs, J. Q. A.: Adams, i, 546-47.

1479

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.)

1480

6 Cranch, 123.

1481

6 Cranch, 128-29.

1482

6 Cranch, 130-31.

1483

Ib. 132-33.

1484

See vol. i, 202, of this work.

1485

6 Cranch, 133-34.

1486

6 Cranch, 137-38.

1487

Ib. 139.

1488

6 Cranch, 147-48.

1489

At the risk of iteration, let it again be stated that, in Fletcher vs. Peck, Marshall declared that a grant by a State, accepted by the grantees, is a contract; that the State cannot annul this contract, because the State is governed by the National Constitution which forbids any State to pass any law "impairing the obligation of contracts"; that even if the contract clause were not in the Constitution, fundamental principles of society protect vested rights; and that the courts cannot inquire into the motives of legislators no matter how corrupt those motives may be.