The Life of John Marshall
Chapter 200 : The State of Georgia did not bring this action; nor, "by this count" of the

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 t.i.tle because "some of the members of the legislature were induced to vote in favor of the law, which const.i.tuted 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 pa.s.sed 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 p.r.o.nounce its own deed invalid" was an a.s.sertion "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 Const.i.tution. These "principles" required that an innocent purchaser should not suffer. "If there be any concealed defect, arising from the conduct of those who had held the property long before he acquired it, of which he had no notice, that concealed defect cannot be set up against him. He has paid his money for a t.i.tle 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 t.i.tles 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 a preceding one, and no legislature can limit the powers of its successor. "But, if an act be done under a law, a succeeding legislature cannot undo it. The past cannot be recalled by the most absolute power." The purchase of estates from the land companies was, by virtue of law, "a fact, and cannot cease to be a fact," even if the State should deny that it was a fact.

"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 const.i.tutions, 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 Const.i.tution, but on fundamental principles. At last, however, he arrives at the Const.i.tution.

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 const.i.tution ... which imposes limits to the legislatures of the several states, which none claim a right to pa.s.s." 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-a.s.sert that right" thus disposed of.

By this reasoning Marshall finally came to the conclusion that the Const.i.tution plainly covered the case. That instrument did not distinguish between grants by individuals and those by States. If a State could not pa.s.s 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 const.i.tution 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 s.h.i.+eld themselves and their property from the effects of those sudden and strong pa.s.sions to which men are exposed."

Therefore, it was provided in America's fundamental law that "no state shall pa.s.s any bill of attainder, ex post facto law, or law impairing the obligation of contracts."[1488]

Such limitations, declared Marshall, const.i.tute 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 pa.s.s 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 t.i.tle, Justice Johnson dissented. On the want of power of the Georgia Legislature to annul the sale act of 1795, the Republican a.s.sociate 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 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 s.h.i.+fted 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 circ.u.mstances, is one of the firmest proofs of his greatness. As in Marbury _vs._ Madison, the supremacy of the National Judiciary had to be a.s.serted 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 Const.i.tution 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 t.i.tles acquired innocently and in good faith, and mult.i.tudes 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 a.s.serted 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 Const.i.tution 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 a.s.serted 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 a.s.sure 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 pet.i.tion 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."[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 Fletcher _vs._ Peck, was a p.r.o.nouncement "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 pet.i.tion of the New England Mississippi Land Company is unreasonable, unjust, and ought not to be granted."

This, if pa.s.sed, 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 Supreme Court. The t.i.tle 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 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 a.s.saults; but now they had devised a new weapon of attack.

They had secured the a.s.sistance of the Judiciary. "Two of the speculators combined and made up a fict.i.tious case, a feigned issue for the decision of the Supreme Court," a.s.serted 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 const.i.tutions, 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 fas.h.i.+on 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 pa.s.sed 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 pa.s.sed 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 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."[1503]

Robert Wright of Maryland urged the pa.s.sage of the bill.

"He ... dwelt ... on the sanct.i.ty of the t.i.tle 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 a.s.saults 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 const.i.tuents. Considerations of local politics, and not devotion to the Const.i.tution 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 crowded the measure to a vote with all the aggressive confidence of an a.s.sured majority. By a vote of 84 yeas to 76 nays, five millions of dollars were appropriated for reimburs.e.m.e.nt 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 pa.s.sage: "The Yazoo bill is through, pa.s.sed 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]