FOOTNOTES:

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 motivesthat induce legislators to pass a law. In arriving at these profoundly important conclusions his reasoning was as follows:

Did the Georgia sale act of 1795 violate the Constitution of that State? An act of a legislature was not to be set aside "lightly" on "vague conjecture" or "slight implication." There was no ground for asserting that the Georgia Legislature transcended its constitutional powers in passing the sale act.[1483]Had the corruption of the Legislature destroyed the title of Peck, an innocent purchaser? It was, cautiously said Marshall, doubtful "how far the validity of a law depends upon the motives of its framers," particularly when the act challenged authorized a contract that was executed according to the terms of it. Even if such legislation could be set aside on the ground of fraud in the enactment of it, to what extent must the impurity go?

"Must it be direct corruption, or would interest or undue influence of any kind be sufficient? Must the vitiating cause operate on a majority, or on what number of the members? Would the act be null, whatever might be the wish of the nation, or would its obligation or nullity depend upon the public sentiment?"

The State of Georgia did not bring this action; nor, "by this count" of the complaint, did it appear that the State was dissatisfied. On the face of the pleadings a purchaser of Georgia land declares that the seller had no title because "some of the members of the legislature were induced to vote in favorof the law, which constituted the contract [with the original grantees], by being promised an interest in it, and that therefore the act is a mere nullity." A tribunal "sitting as a court of law" cannot decide, in a suit between private parties, that the law of a State "is a nullity in consequence of the impure motives which influenced certain members of the legislature which passed the law."[1484]Conceding, for the sake of argument, that "the original transaction was infected with fraud," the purchasers from the land companies were innocent according to the records before the court. Yet, if the rescinding act were valid, it "annihilated their rights.... The legislature of Georgia was a party to this transaction; and for a party to pronounce its own deed invalid" was an assertion "not often heard in courts of justice." It was true, as urged, that "the real party ... are the people"; but they can act only through agents whose "acts must be considered as the acts of the people." Should these agents prove unfaithful, the people can choose others to undo the nefarious work, "if their contracts be examinable" by legislation.[1485]

Admit that the State "might claim to itself the power of judging in its own case, yet there are certain great principles of justice ... that ought not to be entirely disregarded." Thus, at first, Marshall rested his opinion on elementary "principles of justice," rather than on the Constitution. These "principles" required that an innocent purchaser should not suffer. "If there be any concealed defect, arising from the conduct of those who had held theproperty long before he acquired it, of which he had no notice, that concealed defect cannot be set up against him. He has paid his money for a title good at law; he is innocent, whatever may be the guilt of others, and equity will not subject him to the penalties attached to that guilt. All titles would be insecure, and the intercourse between man and man would be very seriously obstructed, if this principle be overturned." The John Marshall who sat in the Virginia Legislature[1486]is speaking now.

Even if the Legislature could throw aside all "rules of property," still the rescinding act is "supported by its power alone, and the same power may divest any other individual of his lands, if it shall be the will of the legislature so to exert it." To make this perfectly clear, Marshall defined the theory relied upon by the opponents of the Yazoo fraud—"The principle is this: that a legislature may, by its own act, divest the vested estate of any man whatever, for reasons which shall, by itself, be deemed sufficient."[1487]

Supposing that the Georgia sale act had been procured by fraud; nevertheless, "the grant, when issued, conveyed an estate in fee-simple to the grantee, clothed with all the solemnities which law can bestow. This estate was transferable; and those who purchased parts of it were not stained by that guilt which infected the original transaction." They could not, therefore, be made to suffer for the wrong of another.

Any legislature can, of course, repeal the acts of apreceding one, and no legislature can limit the powers of its successor. "But, if an act be done under a law, a succeeding legislature cannot undo it. The past cannot be recalled by the most absolute power." The purchase of estates from the land companies was, by virtue of law, "a fact, and cannot cease to be a fact," even if the State should deny that it was a fact.

"When, then, a law is in its nature a contract, where absolute rights have vested under that contract, a repeal of the law cannot divest those rights." If it can, such a power is "applicable to the case of every individual in the community." Regardless of written constitutions, the "nature of society and of government" prescribes "limits to the legislative power." But "where are they to be found, if the property of an individual, fairly and honestly acquired, may be seized without compensation?" Again Marshall founds his reasoning, not on the Constitution, but on fundamental principles. At last, however, he arrives at the Constitution.

Georgia was not a single sovereign power, but "a part of a large empire, ... a member of the American Union; and that Union has a constitution ... which imposes limits to the legislatures of the several states, which none claim a right to pass." Had the Legislature of Georgia overstepped those limits? "Is a grant a contract?" The answer to that depended upon the definition of a contract. On this decisive point Marshall cited Blackstone: "A contract executed ... differs in nothing from a grant." This was the exact case presented bythe Georgia sale act and the fulfillment, by the purchasers, of the conditions of it. "A party is, therefore, always estopped by his own grant," one obligation of which is that he shall never attempt "to re-assert that right" thus disposed of.

By this reasoning Marshall finally came to the conclusion that the Constitution plainly covered the case. That instrument did not distinguish between grants by individuals and those by States. If a State could not pass a law impairing the obligation of contracts between private persons, neither could it invalidate a contract made by itself.

Indeed, as everybody knew, said Marshall, "the framers of the constitution viewed, with some apprehension, the violent acts which might grow out of the feelings of the moment; and that the people of the United States, in adopting that instrument, have manifested a determination to shield themselves and their property from the effects of those sudden and strong passions to which men are exposed." Therefore, it was provided in America's fundamental law that "no state shall pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts."[1488]

Such limitations, declared Marshall, constitute a bill of rights for the people of each State. Would any one pretend to say that a State might enact anex post factolaw or pass a bill of attainder? Certainly not! How then could anybody pretend that a State could by legislation annul a contract?

Thus far the opinion of the court was unanimous.[1489]As to the Indian title, Justice Johnson dissented. On the want of power of the Georgia Legislature to annul the sale act of 1795, the Republican Associate Justice was, however, even more emphatic than the soft-spoken Federalist Chief Justice. But he ended by a rebuke which, if justified, and if the case had not been so important and the situation so critical, probably would have required the peremptory dismissal of the appeal and the disbarment of counsel appearing in the cause. Justice Johnson intimated—all but formally charged—that the case was collusive.

"I have been very unwilling," he said, "to proceed to the decision of this cause at all. It appears to me to be[ar] strong evidence, upon the face of it, of being a mere feigned case. It is our duty to decide upon the rights but not upon the speculations of parties. My confidence, however, in the respectable gentlemen who have been engaged for the parties, had induced me to abandon my scruples, in the belief that they would never consent to impose a mere feigned case upon this court."[1490]

One cannot patiently read these words. Far better had Justice William Johnson denounced Fletchervs.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 theSupreme 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 Marburyvs.Madison, the supremacy of the National Judiciary had to be asserted or its inferiority conceded, so in Fletchervs.Peck, it was necessary that the Nation's highest court should plainly lay down the law of public contract, notify every State of its place in the American system, and announce the limitations which the National Constitution places upon each State.

Failure to do this would have been to sanction Georgia's rescinding act, to encourage other States to take similar action, and to render insecure and litigious numberless titles acquired innocently and in good faith, and multitudes of contracts entered into in the belief that they were binding. A weaker man than John Marshall, and one less wise and courageous, would have dismissed the appeal or decided the case on technical points.

Marshall's opinion did more than affect the controversy in Congress over the Yazoo lands. It announced fundamental principles for the guidance of the States and the stabilizing of American business.[1491]It increased the confidence in him of the conservative elements and of all Nationalists. But, for the same reason, it deepened the public distrust of him and the popular hostility toward him.

Although Marshall's opinion gave steadiness to commercial intercourse at a time when it was sadly needed, checked for the moment a flood of contract-breaking laws, and asserted the supremacy of Nationalism over Localism, it also strengthened many previous speculations that were at least doubtful and some that were corrupt.[1492]Moreover, it furnished the basis for questionable public grants in the future. Yet the good effects of it fairly outweighed the bad. Also it taught the people to be careful in the choice of their representatives in all legislative bodies; if citizens will not select honest and able men as their public agents, they must suffer the consequences of their indifference to their own affairs.

Whatever may be thought of other aspects of this case, it must be conceded that Marshall could not have disobeyed the plain command of the Constitution which forbids any State to impair the obligation of contracts. That the Georgia Legislature was guilty of such violation even Jefferson's appointee, Justice Johnson, declared more emphatically thandid Marshall himself. If Johnson had asserted that a legislative grant, accepted by the grantee, was not a contract, Marshall's opinion would have been fatally wounded.

It had now been Marshall's fate to deliver opinions in three cases[1493]which helped to assure his future fame, but which, at the moment, were highly unwelcome to the people. Throughout the country, at the end of the first decade of the nineteenth century, a more unpopular person could not have been found than that wise, brave, gentle man, the Chief Justice of the United States.

Marshall's opinion and the decision of the court had no practical effect whatever, so far as the legal result of it was concerned, but it had some influence in the settlement of the controversy by Congress. The Eleventh Congress was in session when Fletchervs.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 thebusiness rest, particularly at this time, "would wear the appearance abroad of acquiescence [by the House] in that judicial decision." The Yazoo claimants must not be allowed to profit in this way by the action of the Supreme Court as they would surely do if not prevented, since "never has a claim been pressed upon the public with such pertinacity, with such art, with such audacity."[1494]

George M. Troup of Georgia, slender, handsome, fair-haired,[1495]then thirty years old and possessing all the fiery aggressiveness of youth, sprang to his feet to add his reproof of Marshall and the Supreme Court. He declared that the opinion of the Chief Justice, in Fletchervs.Peck, was a pronouncement "which the mind of every man attached to Republican principles must revolt at."[1496]

Because the session was closing and from pressure of business, Randolph withdrew his motion to refer the memorial to the Committee, and offered another: "That the prayer of the petition of the New England Mississippi Land Company is unreasonable, unjust, and ought not to be granted." This, if passed, would amount to a condemnation by the House of the decision of the Supreme Court of the United States. All Federalists and conservative Republicans combined to defeat it, and the resolution was lost by a vote of 46 yeas to 54 nays.[1497]

But Troup would not yield. On December 17 he insisted that the National Government should resist by force of arms the judgment of the SupremeCourt. The title to the lands was in the United States, he said, yet the court had decided it to be in the Yazoo claimants. "This decision must either be acquiesced in or resisted by the United States.... If the Government ... would not submit to this decision, ... what course could be taken but to employ the whole military force ... to eject all persons not claiming under the authority of the United States?" Should those "in whose behalf" Marshall's opinion was rendered, take possession, either the National Government must "remove them by ... military power, or tamely acquiesce in the lawless aggression."[1498]

But Marshall and the Supreme Court were to be attacked still more openly and violently. Strengthened by the decision in Fletchervs.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 voidab 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 thepowerto 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 decisionshocking 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 Fletchervs.Peck. "Why ... do the judges who passed this decision live and live unpunished?... The foundations of the Republic are shaken and the judges sleep in tranquillity at home.... The question ... had been so often discussed" that it was "well understood by every man in the nation." Troup prophesied, therefore, that "no party in this country, however deeply seated in power, can long survive the adoption of this measure."[1499]

But the Federalist-Jeffersonian Yazoo coalition held firm and Troup's motion to reject the Senate Yazoo bill was lost by a vote of 55 to 59.[1500]The relief bill was delayed, however, and the claimants were compelled to nurse their eighteen-year-old disappointment until another session of Congress convened.

The following year the bill to settle the Yazoo claims was again introduced in the Senate and passed by that body without opposition. On February 28, 1814, the measure reached the House.[1501]On the second reading of it, Troup despairingly moved that the bill be rejected. The intrepid and resourceful John Randolph had been beaten in the preceding Congressional election, the House no longer echoed with his fearless voice, and his dominant personality no longer inspired his followers or terrified his enemies. Troup could not bend the mighty bow that Randolph had left behind and that he alone could draw. But the dauntless Georgian did his best. Once more he went over the items of this "circle of fraud," as he branded it. Success of the "plunderers" now depended on the affirmation by Congress of Marshall's opinion, which, said Troup, "overturns Republican Government. You cannot, you dare not, sanctify this doctrine." If you do so, then "to talk of the rights of the people after this is insult and mockery."[1502]

Long did Troup argue and denounce. He could not keep his eager fingers from the throat of John Marshall and the Supreme Court. "The case ofFletcher and Peck was a decision of a feigned issue, made up between two speculators, to decide certain points, in the decision of which they were interested.... Whenever it is conceded that it is competent to the Supreme Court, in a case between A and B, to take from the United States fifty [sic] millions of acres of land, it will be time for the Government to make a voluntary surrender of the public property to whosoever will have it.... Sir, I am tired and disgusted with this subject."[1503]

Robert Wright of Maryland urged the passage of the bill. "He ... dwelt ... on the sanctity of the title of the present claimants under the decision of the Supreme Court, against whose awards he hoped never to see the bayonet employed. He feared not to advocate this bill on account of the clamor against it. Let justice be done though the heavens fall."[1504]

Weaker and ever weaker grew the assaults of the opponents against Marshall's opinion and the bill to reimburse the Yazoo claimants. In every case the speakers supported or resisted the bill solely according to the influence of their constituents. Considerations of local politics, and not devotion to the Constitution or abhorrence of fraud, moved the Representatives. The House voted, 56 to 92, against Troup's motion to reject the bill.[1505]Finally the measure was referred to a select committee, with instructions to report.[1506]Almost immediately this committee reported in favor of the Yazoo claimants.[1507]No time was lost and the friends of the bill now crowdedthe measure to a vote with all the aggressive confidence of an assured majority. By a vote of 84 yeas to 76 nays, five millions of dollars were appropriated for reimbursement to the purchasers of the Yazoo lands.[1508]

Daniel Webster, who was serving his first term in the House and supported the bill, thus describes the situation at the time of its passage: "The Yazoo bill is through, passed by eight majority. It excited a great deal of feeling. All the Federalists supported the bill, and some of the Democrats. Georgians, and some Virginians and Carolinians, opposed it with great heat.... Our feeling was to get the Democratic support of it."[1509]

Thus John Marshall's great opinion was influential in securing from Congress the settlement of the claims of numerous innocent investors who had, in good faith, purchased from a band of legislative corruptionists. Of infinitely more importance, however, is the fact that Marshall's words asserted the power of the Supreme Court of the United States to annul State laws passed in violation of the National Constitution, and that throughout the Republic a fundamental principle of the law of public contract was established.

FOOTNOTES:[1359]Seeinfra, 550.[1360]Affidavit of Clem Lanier,Am. State Papers, Public Lands,i, 145.[1361]Affidavit of Peter L. Van Allen,ib.[1362]Ib.It would appear that one hundred and fifty thousand acres were allotted to the thrifty Scotch legislator. He sold them for $7500.[1363]Affidavit of John Thomas, Jr.,Am. State Papers, Public Lands,i, 148.[1364]Affidavit of Philip Clayton,ib.146.[1365]Affidavit of John Shepperd,ib.[1366]About sixty affidavits were made to show the venality of members of the Legislature. Of these, twenty-one are printed inib.144-49.[1367]Harris:Georgia from the Invasion of De Soto to Recent Times, 127-28; White:Statistics of the State of Georgia, 50; Chappell:Miscellanies of Georgia, 93-95.These writers leave the unjust inference that Wilson was one of those who were corrupting the Legislature. This is almost certainly untrue. For a quarter of a century Wilson had been a heavy speculator in Indian lands, and it appears reasonable that he took this money to Augusta for the purpose of investment. When the deal was consummated, the Justice held shares to the amount of at least three quarters of a million of acres. (Chappell, 94.)[1368]Ib.95.[1369]Gunn's reëlection was the first step in the conspiracy. Not until that was accomplished was a word said about the sale of the lands. Immediately after the Legislature had chosen Gunn for a second term in the National Senate, however, the bill was introduced and the campaign of intimidation and bribery launched, to force its passage. (Ib.82-83.)[1370]See Mathews's reasons, as quoted in the Rescinding Act of 1796,Am. State Papers, Public Lands,i, 156.[1371]Chappell, 86.[1372]The claims of Spain to the territory had been a serious cloud on the title. In October, 1795, the treaty with the Spanish Government, which removed this defect, was published. Senator James Gunn had knowledge that the treaty would be negotiated long before it was made known to the world or even concluded. This fact was one of the reasons for the mad haste with which the corrupt sale act was rushed through the Georgia Legislature. (See Chappell, 72-73.)[1373]Gunn was a perfect example of the corrupt, yet able, bold, and demagogical politician. He was a master of the arts alike of cajolery and intimidation. For a vivid account of this man see Chappell, 99-105.[1374]Haskins:Yazoo Land Companies, 24.[1375]Am. State Papers, Public Lands,i, 151-52.[1376]Chappell, 87.[1377]"A small smoky cabin with a dirt floor was the home of most of them." (Smith:Story of Georgia and the Georgia People, 181.) For a good description of pioneer houses and manner of living, see Ramsey:Annals of Tennessee to the End of the Eighteenth Century, 715-16.[1378]Smith, 170-71.[1379]Morse'sAmerican Gazetteer, as quoted in Bishop:Georgia Speculation Unveiled, 3-4.[1380]Adams:U.S.i, 303.[1381]The South Carolina Yazoo Company, 10,000,000 acres for $66,964; The Virginia Yazoo Company, 11,400,000 acres for $93,741; The Tennessee Company, 4,000,000 acres for $46,875. (Haskins, 8.)[1382]Works: Ford,vi, 55-57.[1383]Moultrievs.Georgia, 1796, dismissed in 1798,Am. State Papers, Public Lands,i, 167; and see vol.ii, 83-84, of this work.[1384]Chappell, 92-93.[1385]Ib.67-68; Haskins, 13-15.[1386]"No men stood higher in Georgia than the men who composed these several companies and the members of the Legislature who made the sale." (Smith, 173.)[1387]See Haskins, 25, and sources there cited.[1388]The effect of Whitney's invention is shown in striking fashion by the increase of cotton exports. In 1791 only 189,500 pounds were exported from the entire United States. Ten years later Georgia alone exported 3,444,420 pounds. (Jones and Dutcher:Memorial History of Augusta, Georgia, 165.)[1389]Priest:Travels in the United States, 132; and see Haskins, 3.Otis speaks of the "land jobbing prospectors," and says that "money is the object here [Boston] with all ranks and degrees." (Otis to Harper, April 10, 1807, Morison:Otis,i, 283.)The national character "is degenerated into a system of stock-jobbing, extortion and usury.... By the God of Heaven, if we go on in this way, our nation will sink into disgrace and slavery." (Tyler to Madison, Jan. 15, 1810, Tyler,i, 235.)[1390]See vol.i, 428, of this work.[1391]It was, however, among the last items proposed to the Convention, which had been at work more than three months before the "contract clause" was suggested. Even then the proposal was only as tonewStates. The motion was made by Rufus King of New York on August 28. Gouverneur Morris objected. "This would be going too far," he said. George Mason of Virginia said the same thing. Madison thought "a negative on the State laws could alone secure the effect." James Wilson of Pennsylvania warmly supported King's motion. John Rutledge of South Carolina moved, as a substitute for King's proposition, that States should not pass "bills of attainder nor retrospective laws." (Records, Fed. Conv.: Farrand,ii, 440.) This carried, and nothing more appears as to the contract clause until it was included by the Committee on Style in its report of September 12. (Ib.596-97.) Elbridge Gerry of Massachusetts strongly favored it and even wanted Congress "to be laid under the like prohibitions." (Ib.619.) The Convention refused to insert the word "previous" before "obligation." (Ib.636.)In this manner the provision that "no state shall pass any law impairing the obligation of contracts" was inserted in the Constitution. The framers of that instrument apparently had in mind, however, the danger of the violation of contracts through depreciated paper money rather than the invalidation of agreements by the direct action of State Legislatures. (See speech of William R. Davie in the North Carolina Convention, July 29, 1788,ib.iii, 349-50; speech of James McHenry before the Maryland House of Delegates, Nov. 29, 1787,ib.150; and speech of Luther Martin before same, same date,ib.214; also see Madison to Ingersoll, Feb. 2, 1831,ib.495.)Madison best stated the reason for the adoption of the contract clause: "A violations [sic] of Contracts had become familiar in the form of depreciated paper made a legal tender, of property substituted for money, of Instalment laws, and of the occlusions of the Courts of Justice; although evident that all such interferences affected the rights of other States, relatively Creditor, as well as Citizens Creditors within the State." (Ib.548.) Roger Sherman and Oliver Ellsworth explained briefly that the clause "was thought necessary as a security to commerce." (Letter to the Governor of Connecticut, Sept. 26, 1787,ib.100.)[1392]Chappell, 67.[1393]Harris, 130.[1394]Harris, 131.[1395]Feb. 27, 1795,Annals, 3d Cong. 1st and 2d Sess. 838-39.[1396]Ib.844-45. The silence of Jackson at this time is all the more impressive because the report of the Attorney-General would surely be used by the land companies to encourage investors to buy. Both Jackson and Gunn were present when King offered his resolution. (Annals, 3d Cong. 1st and 2d Sess. 846.) Jackson declined to vote on the passage of a House bill "making provision for the purposes of treaty" with the Indians occupying the Yazoo lands. (Ib.849-50.)[1397]Smith, 174.[1398]Robert Watkins.[1399]See Report of the Commissioners,Am. State Papers, Public Lands,i, 132-35.[1400]The "Yazoo men" carried two counties.[1401]Chappell, 126.[1402]The outgoing Governor, George Mathews, in his last message to the Legislature, stoutly defended his approval of the sale act. He attributed the attacks upon him to "base and malicious reports," inspired by "the blackest and the most persevering malice aided by disappointed avarice." The storm against the law was, he said, due to "popular clamour." (Message of Governor Mathews, Jan. 28, 1796, Harper:Case of the Georgia Sales on the Mississippi Considered, 92-93.)[1403]Am. State Papers, Public Lands,i, 157.[1404]Ib.158.[1405]Am. State Papers, Public Lands,i, 158.[1406]The punctilious Legislature failed to explain that one hundred thousand dollars of the purchase money had already been appropriated and expended by the State. This sum they did not propose to restore.[1407]"Or his deputy."[1408]Report of the joint committee, as quoted in Stevens:History of Georgia from its First Discovery by Europeans to the Adoption of the Present Constitution in 1798,ii, 491-92.[1409]Stevens, 492-93. Stevens says that there is no positive proof of this incident; but all other writers declare that it occurred. See Knight:Georgia's Landmarks, Memorials and Legends,i, 152-53; also Harris, 135.[1410]Adams:Randolph, 23; also Garland:Life of John Randolph of Roanoke,i, 64-68.[1411]Seeinfra, 577-81; andsupra, chap.iv.[1412]For instance, Wade Hampton immediately sold the entire holdings of The Upper Mississippi Company, millions of acres, to three South Carolina speculators, and it is quite impossible that they did not know of the corruption of the Georgia Legislature. Hampton acquired from his partners, John B. Scott and John C. Nightingale, all of their interests in the company's purchase. This was done on January 16 and 17, immediately after Governor Mathews had signed the deed from the State. Seven weeks later, March 6, 1795, Hampton conveyed all of this land to Adam Tunno, James Miller, and James Warrington. (Am. State Papers, Public Lands,i, 233.) Hampton was a member of Congress from South Carolina.[1413]State of Facts, shewing the Right of Certain Companies to the Lands lately purchased by them from the State of Georgia.[1414]The Georgia Mississippi Company, The Tennessee Company, and The Georgia Company. (See Haskins, 29.)[1415]Eleven million acres were purchased at eleven cents an acre by a few of the leading citizens of Boston. This one sale netted the Yazoo speculators almost a million dollars, while the fact that such eminent men invested in the Yazoo lands was a strong inducement to ordinary people to invest also. (See Chappell, 109.)[1416]See Chappell, 110-11.[1417]Ames to Gore, Feb. 24, 1795, Ames,i, 168. Ames's alarm, however, was that the Georgia land sale "threatens Indian, Spanish, and civil, wars." The immorality of the transaction appears to have been unknown to him.[1418]Haskins, 30.[1419]Harper, 109. Hamilton's opinion is dated March 25, 1796. In Harper's pamphlet it is incorrectly printed 1795.[1420]Annals, 3d Cong. 1st and 2d Sess. 1231.[1421]Annals, 3d Cong. 1st and 2d Sess. 1251-54. The Georgia act was transmitted to Washington privately.[1422]Ib.1255, 1262-63.[1423]Ib.1282-83.[1424]Am. State Papers, Public Lands,i, 341.[1425]Ib.71.[1426]Bishop's pamphlet was calledGeorgia Speculation Unveiled.[1427]Bishop, 6.[1428]Ib.11.[1429]Ib.[1430]Ib.29-32.[1431]Ib.92.[1432]Ib.144.[1433]Harper's opinion bears, opposite his signature, this statement: "Considered at New-York August 3d, 1796." Beyond all doubt it had been submitted to Hamilton—perhaps prepared in collaboration with him. Harper was himself a member of one of the purchasing companies and in the House he later defended the transaction. (SeeAnnals, 5th Cong. 2d Sess. 1277.)[1434]Harper, 16.[1435]Ib.14.[1436]Ib.49-50.[1437]Ib.50. Here Harper quotes Hamilton's opinion.[1438]Ib.50-53. Harper's pamphlet is valuable as containing, in compact form, all the essential documents relating to Georgia's title as well as the sale and rescinding acts. Other arguments on both sides appeared. One of the ablest of these was a pamphlet by John E. Anderson and William J. Hobby, attorneys of Augusta, Georgia, and published at that place in 1799 "at the instance of the purchasers." It is entitled:The Contract for the Purchase of the Western Territory Made with the Legislature of Georgia in the Year 1795, Considered with a Reference to the Subsequent Attempts of the State to Impair its Obligations.[1439]See report of Attorney-General Charles Lee, April 26, 1796,Am. State Papers, Public Lands,i, 34; report of Senator Aaron Burr, May 20, 1796,ib.71; report of Senator James Ross, March 2, 1797,ib.79.[1440]Except by John Milledge of Georgia, who declared that "there was no legal claim upon ... any part of that territory." Robert Goodloe Harper said that that question "must be determined in a Court of Justice," and argued for an "amicable settlement" of the claims. He himself once had an interest in the purchase, but had disposed of it three years before when it appeared that the matter must come before Congress (Annals, 5th Cong. 2d Sess. 1277-78); the debate occupied parts of two days (see alsoib.1298-1313). In view of the heated controversy that afterward occurred, it seems scarcely credible that almost no attention was given in this debate to the fraudulent character of the transaction.[1441]May 10 1800, Sess.i, chap. 50,U.S. Statutes at Large,ii, 69.[1442]The entire commission was composed of three of the five members of Jefferson's Cabinet, to wit: James Madison, Secretary of State; Albert Gallatin, Secretary of the Treasury; and Levi Lincoln, Attorney-General.[1443]Report of the Commissioners,Am. State Papers, Public Lands,i, 132-35. "The interest of the United States, the tranquillity of those who may hereafter inhabit that territory, and various equitable considerations which may be urged in favor of most of the present claimants, render it expedient to enter into a compromise on reasonable terms."[1444]Annals, 8th Cong. 1st Sess. 1039-40.[1445]Ib.1099-1122, 1131-70.[1446]Perez Morton and Gideon Granger. Morton, like Granger, was a Republican and a devoted Jeffersonian. He went annually to Washington to lobby for the Yazoo claimants and assiduously courted the President. In Boston the Federalists said that his political activity was due to his personal interest in the Georgia lands. (SeeWritings, J. Q. A.: Ford,iii, 51-53.)[1447]Memorial of the Agents of the New England Mississippi Company to Congress, with a Vindication of their Title at Law annexed.[1448]This document, issued in pamphlet form in 1804, is highly important. There can be little doubt that Marshall read it attentively, since it proposed a submission of the acrimonious controversy to the Supreme Court.[1449]The Postmaster-General was not made a member of the Cabinet until 1829.[1450]Seesupra, chap.iv.[1451]Annals, 8th Cong. 2d Sess. 1023.[1452]Cutler,ii, 182.[1453]Annals, 8th Cong. 2d Sess. 1024. To such extravagance and inaccuracy does the frenzy of combat sometimes drive the most honest of men. When he made these assertions, John Randolph knew that scores of purchasers from the land companies had invested in absolute good faith and before Georgia had passed the rescinding act. His tirade done, however, this inexplicable man spoke words of sound though misapplied statesmanship.[1454]Ib.1029-30.[1455]Referring to Granger's speculations in the Western Reserve.[1456]The Yazoo deal.[1457]Annals, 8th Cong. 2d Sess. 1031.[1458]Findley was one of those who led the fight against the ratification of the Constitution in the Pennsylvania Convention. (See vol.i, 327-38, of this work.)[1459]James Wilson.[1460]James Gunn.[1461]Annals, 8th Cong. 2d Sess. 1080-89.[1462]Cutler,ii, 182.[1463]Annals, 8th Cong. 2d Sess. 1100-08.[1464]Ib.1173.[1465]Seesupra, chap.iv.[1466]Memoirs, J. Q. A.: Adams,i, 343.[1467]See vol.i, 224-41, of this work.[1468]Ib.191, 196; and vol.ii, 206.[1469]Martinvs.Hunter's Lessees; see vol.iv, chap,iii, of this work.[1470]Memoirs, J. Q. A.: Adams,i, 381; also seeib.389, 392, 404-05, 408-09, 417-19.[1471]Haskins, 38.[1472]Story to Fay, May 30, 1807, Story,i, 150-53; and see Cabot to Pickering, Jan. 28, 1808. Lodge:Cabot, 377.[1473]Annals, 10th Cong. 1st Sess. 1601-13.[1474]See Abstract,Am. State Papers, Public Lands,i, 220-34.[1475]Records, U.S. Circuit Court, Boston.[1476]Judge Chappell asserts that the pleadings showed, on the face of them, that the case was feigned. (See Chappell, 135-36.)[1477]Fletchervs.Peck, 6 Cranch, 87-94.[1478]Fletchervs.Peck, 6 Cranch, 127.[1479]Justices Chase and Cushing were absent because of illness.[1480]Memoirs, J. Q. A.: Adams,i, 546-47.[1481]Memoirs, J. Q. A.: Adams,i, 115.On this occasion Martin was so drunk that the court adjourned to prevent him from completing his argument. (SeeMd. 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. (Seesupra, footnote to 185-86.)[1482]6 Cranch, 123.[1483]6 Cranch, 128-29.[1484]6 Cranch, 130-31.[1485]Ib.132-33.[1486]See vol.i, 202, of this work.[1487]6 Cranch, 133-34.[1488]6 Cranch, 137-38.[1489]Ib.139.[1490]6 Cranch, 147-48.[1491]At the risk of iteration, let it again be stated that, in Fletchervs.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.[1492]For the first two decades of the National Government land frauds were general. See, for example, letter of Governor Harrison of Indiana, Jan. 19, 1802,Am. State Papers, Public Lands,i, 123; report of Michael Leib, Feb. 14, 1804,ib.189; and letter of Amos Stoddard, Jan. 10, 1804,ib.193-94.[1493]Marburyvs.Madison, the Burr trial, and Fletchervs.Peck.[1494]Annals, 11th Cong. 2d Sess. 1881.[1495]Harden:Life of George M. Troup, 9.[1496]Annals, 11th Cong. 2d. Sess. 1882.[1497]Ib.[1498]Annals, 11th Cong. 3d Sess. 415.[1499]Annals, 12th Cong. 2d Sess. 856-59.[1500]Annals, 12th Cong. 2d Sess. 860.[1501]Annals, 13th Cong. 2d Sess. 1697.[1502]Ib.1840-42.[1503]Annals, 13th Cong. 2d Sess. 1848.[1504]Ib.1850.[1505]Ib.1855.[1506]Ib.1858-59.[1507]Ib.1873-75.[1508]Annals, 13th Cong. 2d Sess. 1925; see also Sess.i, chap. 39, March 31, 1814,U.S. Statutes at Large,iii, 117.[1509]Daniel to Ezekiel Webster, March 28, 1814,Private Correspondence of Daniel Webster: Webster, 244.

[1359]Seeinfra, 550.

[1360]Affidavit of Clem Lanier,Am. State Papers, Public Lands,i, 145.

[1361]Affidavit of Peter L. Van Allen,ib.

[1362]Ib.It would appear that one hundred and fifty thousand acres were allotted to the thrifty Scotch legislator. He sold them for $7500.

[1363]Affidavit of John Thomas, Jr.,Am. State Papers, Public Lands,i, 148.

[1364]Affidavit of Philip Clayton,ib.146.

[1365]Affidavit of John Shepperd,ib.

[1366]About sixty affidavits were made to show the venality of members of the Legislature. Of these, twenty-one are printed inib.144-49.

[1367]Harris:Georgia from the Invasion of De Soto to Recent Times, 127-28; White:Statistics of the State of Georgia, 50; Chappell:Miscellanies of Georgia, 93-95.These writers leave the unjust inference that Wilson was one of those who were corrupting the Legislature. This is almost certainly untrue. For a quarter of a century Wilson had been a heavy speculator in Indian lands, and it appears reasonable that he took this money to Augusta for the purpose of investment. When the deal was consummated, the Justice held shares to the amount of at least three quarters of a million of acres. (Chappell, 94.)

[1367]Harris:Georgia from the Invasion of De Soto to Recent Times, 127-28; White:Statistics of the State of Georgia, 50; Chappell:Miscellanies of Georgia, 93-95.

These writers leave the unjust inference that Wilson was one of those who were corrupting the Legislature. This is almost certainly untrue. For a quarter of a century Wilson had been a heavy speculator in Indian lands, and it appears reasonable that he took this money to Augusta for the purpose of investment. When the deal was consummated, the Justice held shares to the amount of at least three quarters of a million of acres. (Chappell, 94.)

[1368]Ib.95.

[1369]Gunn's reëlection was the first step in the conspiracy. Not until that was accomplished was a word said about the sale of the lands. Immediately after the Legislature had chosen Gunn for a second term in the National Senate, however, the bill was introduced and the campaign of intimidation and bribery launched, to force its passage. (Ib.82-83.)

[1370]See Mathews's reasons, as quoted in the Rescinding Act of 1796,Am. State Papers, Public Lands,i, 156.

[1371]Chappell, 86.

[1372]The claims of Spain to the territory had been a serious cloud on the title. In October, 1795, the treaty with the Spanish Government, which removed this defect, was published. Senator James Gunn had knowledge that the treaty would be negotiated long before it was made known to the world or even concluded. This fact was one of the reasons for the mad haste with which the corrupt sale act was rushed through the Georgia Legislature. (See Chappell, 72-73.)

[1373]Gunn was a perfect example of the corrupt, yet able, bold, and demagogical politician. He was a master of the arts alike of cajolery and intimidation. For a vivid account of this man see Chappell, 99-105.

[1374]Haskins:Yazoo Land Companies, 24.

[1375]Am. State Papers, Public Lands,i, 151-52.

[1376]Chappell, 87.

[1377]"A small smoky cabin with a dirt floor was the home of most of them." (Smith:Story of Georgia and the Georgia People, 181.) For a good description of pioneer houses and manner of living, see Ramsey:Annals of Tennessee to the End of the Eighteenth Century, 715-16.

[1378]Smith, 170-71.

[1379]Morse'sAmerican Gazetteer, as quoted in Bishop:Georgia Speculation Unveiled, 3-4.

[1380]Adams:U.S.i, 303.

[1381]The South Carolina Yazoo Company, 10,000,000 acres for $66,964; The Virginia Yazoo Company, 11,400,000 acres for $93,741; The Tennessee Company, 4,000,000 acres for $46,875. (Haskins, 8.)

[1382]Works: Ford,vi, 55-57.

[1383]Moultrievs.Georgia, 1796, dismissed in 1798,Am. State Papers, Public Lands,i, 167; and see vol.ii, 83-84, of this work.

[1384]Chappell, 92-93.

[1385]Ib.67-68; Haskins, 13-15.

[1386]"No men stood higher in Georgia than the men who composed these several companies and the members of the Legislature who made the sale." (Smith, 173.)

[1387]See Haskins, 25, and sources there cited.

[1388]The effect of Whitney's invention is shown in striking fashion by the increase of cotton exports. In 1791 only 189,500 pounds were exported from the entire United States. Ten years later Georgia alone exported 3,444,420 pounds. (Jones and Dutcher:Memorial History of Augusta, Georgia, 165.)

[1389]Priest:Travels in the United States, 132; and see Haskins, 3.Otis speaks of the "land jobbing prospectors," and says that "money is the object here [Boston] with all ranks and degrees." (Otis to Harper, April 10, 1807, Morison:Otis,i, 283.)The national character "is degenerated into a system of stock-jobbing, extortion and usury.... By the God of Heaven, if we go on in this way, our nation will sink into disgrace and slavery." (Tyler to Madison, Jan. 15, 1810, Tyler,i, 235.)

[1389]Priest:Travels in the United States, 132; and see Haskins, 3.

Otis speaks of the "land jobbing prospectors," and says that "money is the object here [Boston] with all ranks and degrees." (Otis to Harper, April 10, 1807, Morison:Otis,i, 283.)

The national character "is degenerated into a system of stock-jobbing, extortion and usury.... By the God of Heaven, if we go on in this way, our nation will sink into disgrace and slavery." (Tyler to Madison, Jan. 15, 1810, Tyler,i, 235.)

[1390]See vol.i, 428, of this work.

[1391]It was, however, among the last items proposed to the Convention, which had been at work more than three months before the "contract clause" was suggested. Even then the proposal was only as tonewStates. 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.)

In this manner the provision that "no state shall pass any law impairing the obligation of contracts" was inserted in the Constitution. The framers of that instrument apparently had in mind, however, the danger of the violation of contracts through depreciated paper money rather than the invalidation of agreements by the direct action of State Legislatures. (See speech of William R. Davie in the North Carolina Convention, July 29, 1788,ib.iii, 349-50; speech of James McHenry before the Maryland House of Delegates, Nov. 29, 1787,ib.150; and speech of Luther Martin before same, same date,ib.214; also see Madison to Ingersoll, Feb. 2, 1831,ib.495.)

Madison best stated the reason for the adoption of the contract clause: "A violations [sic] of Contracts had become familiar in the form of depreciated paper made a legal tender, of property substituted for money, of Instalment laws, and of the occlusions of the Courts of Justice; although evident that all such interferences affected the rights of other States, relatively Creditor, as well as Citizens Creditors within the State." (Ib.548.) Roger Sherman and Oliver Ellsworth explained briefly that the clause "was thought necessary as a security to commerce." (Letter to the Governor of Connecticut, Sept. 26, 1787,ib.100.)

[1392]Chappell, 67.

[1393]Harris, 130.

[1394]Harris, 131.

[1395]Feb. 27, 1795,Annals, 3d Cong. 1st and 2d Sess. 838-39.

[1396]Ib.844-45. The silence of Jackson at this time is all the more impressive because the report of the Attorney-General would surely be used by the land companies to encourage investors to buy. Both Jackson and Gunn were present when King offered his resolution. (Annals, 3d Cong. 1st and 2d Sess. 846.) Jackson declined to vote on the passage of a House bill "making provision for the purposes of treaty" with the Indians occupying the Yazoo lands. (Ib.849-50.)

[1397]Smith, 174.

[1398]Robert Watkins.

[1399]See Report of the Commissioners,Am. State Papers, Public Lands,i, 132-35.

[1400]The "Yazoo men" carried two counties.

[1401]Chappell, 126.

[1402]The outgoing Governor, George Mathews, in his last message to the Legislature, stoutly defended his approval of the sale act. He attributed the attacks upon him to "base and malicious reports," inspired by "the blackest and the most persevering malice aided by disappointed avarice." The storm against the law was, he said, due to "popular clamour." (Message of Governor Mathews, Jan. 28, 1796, Harper:Case of the Georgia Sales on the Mississippi Considered, 92-93.)

[1403]Am. State Papers, Public Lands,i, 157.

[1404]Ib.158.

[1405]Am. State Papers, Public Lands,i, 158.

[1406]The punctilious Legislature failed to explain that one hundred thousand dollars of the purchase money had already been appropriated and expended by the State. This sum they did not propose to restore.

[1407]"Or his deputy."

[1408]Report of the joint committee, as quoted in Stevens:History of Georgia from its First Discovery by Europeans to the Adoption of the Present Constitution in 1798,ii, 491-92.

[1409]Stevens, 492-93. Stevens says that there is no positive proof of this incident; but all other writers declare that it occurred. See Knight:Georgia's Landmarks, Memorials and Legends,i, 152-53; also Harris, 135.

[1410]Adams:Randolph, 23; also Garland:Life of John Randolph of Roanoke,i, 64-68.

[1411]Seeinfra, 577-81; andsupra, chap.iv.

[1412]For instance, Wade Hampton immediately sold the entire holdings of The Upper Mississippi Company, millions of acres, to three South Carolina speculators, and it is quite impossible that they did not know of the corruption of the Georgia Legislature. Hampton acquired from his partners, John B. Scott and John C. Nightingale, all of their interests in the company's purchase. This was done on January 16 and 17, immediately after Governor Mathews had signed the deed from the State. Seven weeks later, March 6, 1795, Hampton conveyed all of this land to Adam Tunno, James Miller, and James Warrington. (Am. State Papers, Public Lands,i, 233.) Hampton was a member of Congress from South Carolina.

[1413]State of Facts, shewing the Right of Certain Companies to the Lands lately purchased by them from the State of Georgia.

[1414]The Georgia Mississippi Company, The Tennessee Company, and The Georgia Company. (See Haskins, 29.)

[1415]Eleven million acres were purchased at eleven cents an acre by a few of the leading citizens of Boston. This one sale netted the Yazoo speculators almost a million dollars, while the fact that such eminent men invested in the Yazoo lands was a strong inducement to ordinary people to invest also. (See Chappell, 109.)

[1416]See Chappell, 110-11.

[1417]Ames to Gore, Feb. 24, 1795, Ames,i, 168. Ames's alarm, however, was that the Georgia land sale "threatens Indian, Spanish, and civil, wars." The immorality of the transaction appears to have been unknown to him.

[1418]Haskins, 30.

[1419]Harper, 109. Hamilton's opinion is dated March 25, 1796. In Harper's pamphlet it is incorrectly printed 1795.

[1420]Annals, 3d Cong. 1st and 2d Sess. 1231.

[1421]Annals, 3d Cong. 1st and 2d Sess. 1251-54. The Georgia act was transmitted to Washington privately.

[1422]Ib.1255, 1262-63.

[1423]Ib.1282-83.

[1424]Am. State Papers, Public Lands,i, 341.

[1425]Ib.71.

[1426]Bishop's pamphlet was calledGeorgia Speculation Unveiled.

[1427]Bishop, 6.

[1428]Ib.11.

[1429]Ib.

[1430]Ib.29-32.

[1431]Ib.92.

[1432]Ib.144.

[1433]Harper's opinion bears, opposite his signature, this statement: "Considered at New-York August 3d, 1796." Beyond all doubt it had been submitted to Hamilton—perhaps prepared in collaboration with him. Harper was himself a member of one of the purchasing companies and in the House he later defended the transaction. (SeeAnnals, 5th Cong. 2d Sess. 1277.)

[1434]Harper, 16.

[1435]Ib.14.

[1436]Ib.49-50.

[1437]Ib.50. Here Harper quotes Hamilton's opinion.

[1438]Ib.50-53. Harper's pamphlet is valuable as containing, in compact form, all the essential documents relating to Georgia's title as well as the sale and rescinding acts. Other arguments on both sides appeared. One of the ablest of these was a pamphlet by John E. Anderson and William J. Hobby, attorneys of Augusta, Georgia, and published at that place in 1799 "at the instance of the purchasers." It is entitled:The Contract for the Purchase of the Western Territory Made with the Legislature of Georgia in the Year 1795, Considered with a Reference to the Subsequent Attempts of the State to Impair its Obligations.

[1439]See report of Attorney-General Charles Lee, April 26, 1796,Am. State Papers, Public Lands,i, 34; report of Senator Aaron Burr, May 20, 1796,ib.71; report of Senator James Ross, March 2, 1797,ib.79.

[1440]Except by John Milledge of Georgia, who declared that "there was no legal claim upon ... any part of that territory." Robert Goodloe Harper said that that question "must be determined in a Court of Justice," and argued for an "amicable settlement" of the claims. He himself once had an interest in the purchase, but had disposed of it three years before when it appeared that the matter must come before Congress (Annals, 5th Cong. 2d Sess. 1277-78); the debate occupied parts of two days (see alsoib.1298-1313). In view of the heated controversy that afterward occurred, it seems scarcely credible that almost no attention was given in this debate to the fraudulent character of the transaction.

[1441]May 10 1800, Sess.i, chap. 50,U.S. Statutes at Large,ii, 69.

[1442]The entire commission was composed of three of the five members of Jefferson's Cabinet, to wit: James Madison, Secretary of State; Albert Gallatin, Secretary of the Treasury; and Levi Lincoln, Attorney-General.

[1443]Report of the Commissioners,Am. State Papers, Public Lands,i, 132-35. "The interest of the United States, the tranquillity of those who may hereafter inhabit that territory, and various equitable considerations which may be urged in favor of most of the present claimants, render it expedient to enter into a compromise on reasonable terms."

[1444]Annals, 8th Cong. 1st Sess. 1039-40.

[1445]Ib.1099-1122, 1131-70.

[1446]Perez Morton and Gideon Granger. Morton, like Granger, was a Republican and a devoted Jeffersonian. He went annually to Washington to lobby for the Yazoo claimants and assiduously courted the President. In Boston the Federalists said that his political activity was due to his personal interest in the Georgia lands. (SeeWritings, J. Q. A.: Ford,iii, 51-53.)

[1447]Memorial of the Agents of the New England Mississippi Company to Congress, with a Vindication of their Title at Law annexed.

[1448]This document, issued in pamphlet form in 1804, is highly important. There can be little doubt that Marshall read it attentively, since it proposed a submission of the acrimonious controversy to the Supreme Court.

[1449]The Postmaster-General was not made a member of the Cabinet until 1829.

[1450]Seesupra, chap.iv.

[1451]Annals, 8th Cong. 2d Sess. 1023.

[1452]Cutler,ii, 182.

[1453]Annals, 8th Cong. 2d Sess. 1024. To such extravagance and inaccuracy does the frenzy of combat sometimes drive the most honest of men. When he made these assertions, John Randolph knew that scores of purchasers from the land companies had invested in absolute good faith and before Georgia had passed the rescinding act. His tirade done, however, this inexplicable man spoke words of sound though misapplied statesmanship.

[1454]Ib.1029-30.

[1455]Referring to Granger's speculations in the Western Reserve.

[1456]The Yazoo deal.

[1457]Annals, 8th Cong. 2d Sess. 1031.

[1458]Findley was one of those who led the fight against the ratification of the Constitution in the Pennsylvania Convention. (See vol.i, 327-38, of this work.)

[1459]James Wilson.

[1460]James Gunn.

[1461]Annals, 8th Cong. 2d Sess. 1080-89.

[1462]Cutler,ii, 182.

[1463]Annals, 8th Cong. 2d Sess. 1100-08.

[1464]Ib.1173.

[1465]Seesupra, chap.iv.

[1466]Memoirs, J. Q. A.: Adams,i, 343.

[1467]See vol.i, 224-41, of this work.

[1468]Ib.191, 196; and vol.ii, 206.

[1469]Martinvs.Hunter's Lessees; see vol.iv, chap,iii, of this work.

[1470]Memoirs, J. Q. A.: Adams,i, 381; also seeib.389, 392, 404-05, 408-09, 417-19.

[1471]Haskins, 38.

[1472]Story to Fay, May 30, 1807, Story,i, 150-53; and see Cabot to Pickering, Jan. 28, 1808. Lodge:Cabot, 377.

[1473]Annals, 10th Cong. 1st Sess. 1601-13.

[1474]See Abstract,Am. State Papers, Public Lands,i, 220-34.

[1475]Records, U.S. Circuit Court, Boston.

[1476]Judge Chappell asserts that the pleadings showed, on the face of them, that the case was feigned. (See Chappell, 135-36.)

[1477]Fletchervs.Peck, 6 Cranch, 87-94.

[1478]Fletchervs.Peck, 6 Cranch, 127.

[1479]Justices Chase and Cushing were absent because of illness.

[1480]Memoirs, J. Q. A.: Adams,i, 546-47.

[1481]Memoirs, J. Q. A.: Adams,i, 115.On this occasion Martin was so drunk that the court adjourned to prevent him from completing his argument. (SeeMd. 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. (Seesupra, footnote to 185-86.)

[1481]Memoirs, J. Q. A.: Adams,i, 115.

On this occasion Martin was so drunk that the court adjourned to prevent him from completing his argument. (SeeMd. 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. (Seesupra, footnote to 185-86.)

[1482]6 Cranch, 123.

[1483]6 Cranch, 128-29.

[1484]6 Cranch, 130-31.

[1485]Ib.132-33.

[1486]See vol.i, 202, of this work.

[1487]6 Cranch, 133-34.

[1488]6 Cranch, 137-38.

[1489]Ib.139.

[1490]6 Cranch, 147-48.

[1491]At the risk of iteration, let it again be stated that, in Fletchervs.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.

[1492]For the first two decades of the National Government land frauds were general. See, for example, letter of Governor Harrison of Indiana, Jan. 19, 1802,Am. State Papers, Public Lands,i, 123; report of Michael Leib, Feb. 14, 1804,ib.189; and letter of Amos Stoddard, Jan. 10, 1804,ib.193-94.

[1493]Marburyvs.Madison, the Burr trial, and Fletchervs.Peck.

[1494]Annals, 11th Cong. 2d Sess. 1881.

[1495]Harden:Life of George M. Troup, 9.

[1496]Annals, 11th Cong. 2d. Sess. 1882.

[1497]Ib.

[1498]Annals, 11th Cong. 3d Sess. 415.

[1499]Annals, 12th Cong. 2d Sess. 856-59.

[1500]Annals, 12th Cong. 2d Sess. 860.

[1501]Annals, 13th Cong. 2d Sess. 1697.

[1502]Ib.1840-42.

[1503]Annals, 13th Cong. 2d Sess. 1848.

[1504]Ib.1850.

[1505]Ib.1855.

[1506]Ib.1858-59.

[1507]Ib.1873-75.

[1508]Annals, 13th Cong. 2d Sess. 1925; see also Sess.i, chap. 39, March 31, 1814,U.S. Statutes at Large,iii, 117.

[1509]Daniel to Ezekiel Webster, March 28, 1814,Private Correspondence of Daniel Webster: Webster, 244.

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