The Life of John Marshall Volume III Part 66

By the G.o.d of Heaven, if we go on in this way, our nation will sink into disgrace and slavery. (John Tyler.)

Millions of acres are easily digested by such stomachs. They buy and sell corruption in the gross. (John Randolph.)

When a law is in its nature a contract, when absolute rights have vested under that contract, a repeal of the law cannot divest those rights. The people can act only by their agents and, within the powers conferred upon them, their acts must be considered as the acts of the people. (Marshall.)

The Honorable William Longstreet was an active and influential member of the Georgia Legislature during the winter of 1794-95. He was also a practical man. An important bill was then before that body, and Mr.

Longstreet employed effective methods to forward its pa.s.sage. The proposed legislation was to authorize the sale to four speculating land companies[1359] of most of that territory which comprises the present States of Alabama and Mississippi.

"Why are you not in favor of selling the western lands?" frequently asked Representative Longstreet of his fellow member, Clem Lanier.

"Because I do not think it right to sell to companies of speculators,"

was the answer. "Better vote for the bill," observed his seat mate, Representative Henry Gindrat, one day as they sat chatting before the Speaker of the House took the chair. "It will be worth your while.

Senator Thomas Wylly says that he can have eight or ten likely negroes for his part."

That afternoon Senator Wylly came to Lanier and began to talk of the land bill. A Mr. Dennison sauntered up. Wylly left, and the newcomer remarked that, of course, he advised no legislator how to vote, but he could not help noticing that all who favored the sale of the lands "were handsomely provided for." If Lanier should support the bill, he would be taken care of like the rest. He was buying, Dennison said, from members who wished to sell lands allotted to them for agreeing to support the measure.

Once more came Longstreet, who "presented a certificate ent.i.tling the bearer to two shares of twenty-five thousand acres each," as security that Lanier would be rewarded if he voted for the sale bill. The obdurate Representative, who wished to probe the depths of the plot, objected, and Longstreet a.s.sured him that he would immediately procure "another certificate ... for the same number of acres." But Lanier finally declined the bribe of seventy-five thousand acres of land.[1360]

Representative Gindrat had offered to sell his shares for one thousand dollars, the price generally given; but, securing "a better market,"

declined that sum.[1361] Representative Lachlan M'Intosh received six shares in one of the land companies, which he sold at a premium of two hundred and fifty dollars each.[1362]

After the bill had pa.s.sed, Senator Robert Thomas, who had no means of acquiring ready cash,[1363] brought two thousand dollars to the house where he boarded and asked Philip Clayton, the owner, to keep it for him. Clayton was curious--did Senator Thomas get the money for his share of the lands? he inquired. "It is nothing to you; take care of it,"

answered the suddenly affluent legislator, smiling.[1364]

Representative Longstreet offered Representative John Shepperd one hundred thousand acres, but Shepperd was not interested; then Philip Clayton, the tavern-keeper, offered him seventy pounds to go home for the session.[1365]

A saturnalia of corruption was in progress in the little village of Augusta, where the Legislature of Georgia was in session.[1366] The leading men of that and neighboring States were on the ground urging the enactment of the law in which all were interested. Wade Hampton of South Carolina was on hand. State and National judges were present. James Wilson of Pennsylvania, a.s.sociate Justice of the Supreme Court of the United States, was there with twenty-five thousand dollars in bank bills.[1367]

William Smith, Judge of the Superior Court of Georgia, added his influence, receiving for his services as lobbyist thirteen thousand dollars. Nathaniel Pendleton, Judge of the United States Court for that district, urged the legislation and signed and issued the certificates for shares that were given to the members for their votes.[1368]

Directing all was General James Gunn, United States Senator from Georgia: his first term in the National Senate about to expire, he was now reelected by this very Legislature.[1369]

A majority of Georgia's lawmaking body thus became financially interested in the project, and the bill pa.s.sed both houses. But Governor George Mathews vetoed the measure, because he thought the time not propitious for selling the lands, the price too low, the reservations for Georgians too small, and the principle of monopoly wrong.[1370]

Another bill was prepared to meet some of the Governor's objections.

This was introduced as a supplement to a law just enacted to pay the State troops.[1371] Again every possible influence was brought upon the Legislature to pa.s.s this bill with utmost dispatch.[1372] Some members, who would not support it, were induced to leave the tiny Georgia Capital; others, who were recalcitrant, were browbeaten and bullied.

Senator Gunn, the field marshal of this legislative campaign, strode about the village arrayed in broadcloth, top boots, and beaver hat, commending those who favored the bill, abusing those who opposed it. In his hand he carried a loaded whip, and with this the burly Senator actually menaced members who objected to the scheme.[1373] In a little more than one week the bill was rushed through both houses. This time it received the reluctant approval of the Governor, and on January 7, 1795, became a law.

In such fas.h.i.+on was enacted the legislation which disposed of more than thirty-five million acres of fertile, well-watered, heavily wooded land at less than one and one half cents an acre.[1374] The purchasers were four companies known as The Georgia Company, The Georgia Mississippi Company, The Tennessee Company, and The Upper Mississippi Company. The total purchase price was five hundred thousand dollars in specie or approved currency, one fifth to be deposited with the State Treasurer before the pa.s.sage of the act, and the remainder to be paid on or before November 1, 1795. The Governor was directed to execute a deed in fee-simple to the men composing each company as tenants in common; and the deferred payments were secured by mortgages to the Governor, to be immediately foreclosed upon default of payment, and the one fifth already deposited to be forfeited to the State.

Two million acres were reserved for exclusive entry by citizens of Georgia, and the land companies were bound to form settlements within five years after the Indian t.i.tles had been extinguished. The lands were declared free of taxation until they should be so occupied that the settlers were represented in the Legislature.[1375] Governor Mathews executed deeds in compliance with the law, and, the entire amount of the purchase money having been paid into the State Treasury before November 1, the mortgages were canceled and the transaction was closed in accordance with the provisions of the statute. So far as that legislation and the steps taken in pursuance of it could bring about such a result, the legal t.i.tle to practically all of the domain stretching from the present western boundary of Georgia to the Mississippi River, and from the narrow strip of Spanish territory on the Gulf to the Tennessee line, was transferred to the men composing these four land companies. The greatest real estate deal in history was thus consummated.

But even while this bill was before the Legislature, popular opposition to it began. A young man of twenty-three was then teaching in a little school-house at Augusta, but he was destined to become United States Senator, Minister to France, Secretary of the Treasury, and candidate for President. Enraged at what he believed the despoiling of the people by a band of robbers using robbers' methods, young William H. Crawford hurried to his home in Columbia County, got up a pet.i.tion to the Governor to reject the bill again, and hurried to the Capital where he presented it to the Chief Executive of the State.[1376] But Governor Mathews, against whom no man, then or thereafter, charged corrupt motives, persisted in signing the measure.

And it must be said that the bill was not without merit. Georgia was but thinly populated, not more than fifty thousand human beings inhabiting its immense extent of savanna and forest. Most of these people were very poor[1377] and unable to pay any public charges whatever. The State Treasury was empty; the State troops, who had been employed in the endless Indian troubles, were unpaid and clamoring for the money long due them; the State currency had so depreciated that it was almost without value. No commonwealth in the Union was in worse financial case.[1378]

Moreover, the t.i.tles of the Indians, who occupied the country and who were its real owners, had not been extinguished. Under the Const.i.tution, the National Government alone could deal with the tribes, and it had long been urging Georgia to cede her claims to the United States, as Virginia and Connecticut had done. Indeed, the State had once offered to make this cession, but on such terms that Congress had refused to accept it. The purchasers now took whatever t.i.tle Georgia had, subject to these burdens, the State to be saved from all annoyance on account of them.

The tribes were powerful and brave, and they had been prompt and bold in the defense of their lands. The Creeks alone could put nearly six thousand fighting men in the field, and the Choctaws had more than four thousand trained warriors.[1379] The feeble and impoverished State had never been able to subdue them, or to enforce in the slightest degree the recognition of the State's t.i.tle to the country they inhabited.

Georgia's right to their lands "depended on her power to dispossess the Indians; but however good the t.i.tle might be, the State would have been fortunate to make it a free gift to any authority strong enough to deal with the Creeks and Cherokees alone."[1380]

The sale of the territory was not a new or novel project. Six years earlier the State had disposed of twenty-five million five hundred thousand acres of the same territory to four land companies on much poorer terms.[1381] Jefferson, then Secretary of State, rendered a careful opinion on the right of Georgia to make the grant.[1382] These purchasers had tendered payment in South Carolina and Continental scrip that was practically worthless; the Treasurer of Georgia had properly refused to accept it; and there ended the transaction as far as the State was concerned. A suit was later brought against Georgia by the grantees[1383] to compel the performance of the contract; but the Eleventh Amendment of the Const.i.tution thwarted that legal plan. So these speculators dropped the matter until the sale just described was made to the new companies six years later.

The most active promoters of the first purchasing companies, in 1789, were mere adventurers, although at first Patrick Henry and other men of honor and repute were interested in the speculation. Henry, however, soon withdrew.[1384] The consummation of their deal with Georgia required the payment of sound money and _bona-fide_ settlement by actual tillers of the soil. Also, the adventurers got into trouble with the Indians, became gravely involved in Spanish intrigue, and collided with the National Government;[1385] so the enterprise lost, for a time, all attractiveness for these speculators.

The new land companies, on the other hand, were for the most part composed of men of excellent reputations.[1386] At the head of the largest, The Georgia Company, were United States Senator James Gunn and United States Attorney for the District of Georgia, Mathew McAlister; a.s.sociated with them, in addition to Judges St.i.th and Pendleton, and Justice Wilson, were Robert Goodloe Harper, Representative in Congress from Maryland, Robert Morris, the financier of the Revolution, and others of substance and position.[1387] Also, as has been stated, they paid for their lands in the money called for by the act--the best money then circulating in America. The first sales of Indian lands to which Georgia claimed t.i.tle were known as the "Yazoo" speculation, and this designation stuck to the second transaction.

In the six years that had intervened between the sales to the irresponsible land-jobbers of 1789 and the solvent investors of 1795, an event of world importance had occurred which doubled and trebled the value of all cotton-bearing soil. Eli Whitney, a Connecticut school-teacher twenty-seven years of age, had gone to Georgia in 1792 to act as a private tutor. Finding the position taken, he studied law while the guest of the widow of General Nathanael Greene. This discerning woman, perceiving that the young man was gifted with inventive genius, set him to work on a device for separating cotton from the seed. The machine was built, and worked perfectly. The news of it traveled with astonis.h.i.+ng rapidity throughout Georgia and the South. The model was stolen; and so simple was the construction of it that everywhere in cotton-growing lands it was freely reproduced by planters great and small. The vast sweep of territory stretching from Georgia to the Father of Waters, the best cotton land in the world, thus rose in value as if the wand of a financial deity had been waved over it. Settlers poured into Georgia by the thousand, and Indian atrocities were now as little feared as Indian rights were respected.[1388]

The purchase of the unoccupied Georgia lands by the _bona-fide_, if piratical, land companies of 1795 became, therefore, an adventure far more valuable in possibilities for the investors, and incomparably more attractive in the probability of political advantage to those who resisted it, than the innocuous and unopposed sale to the Yazoo swindlers of six years previous.

So it fell out that the mechanical genius of Eli Whitney, in 1793, called into action, exactly eighteen years afterward, the judicial genius of John Marshall. His opinion in Fletcher _vs._ Peck was one of the first steps toward the settling of the law of public contract in the riotous young Republic--one of the earliest and strongest judicial a.s.sertions of the supremacy of Nationalism over Localism. And never more than at that particular time did an established rule on these vital subjects so need to be announced by the highest judicial authority.

Since before the Revolution, all men had fixed their eyes, hopes, and purposes upon land. Not the humble and needy only, but the high-placed and opulent, had looked to the soil--the one as their chief source of livelihood, and the other as a means of profitable speculation. Indeed, dealing in land was the most notable economic fact in the early years of the American Nation. "Were I to characterize the _United States_,"

chronicles one of the most acute British travelers and observers of the time, "it should be by the appellation of the _land of speculation_."[1389]

From the Nation's beginning, the States had lax notions as to the sacredness of public contracts, and often violated the obligations of them.[1390] Private agreements stood on a somewhat firmer basis, but even these were looked upon with none too ardent favor. The most familiar forms of contract-breaking were the making legal tender of depreciated paper, and the subst.i.tution of property for money; but other devices were also resorted to. So it was that the provision, "no state shall pa.s.s any law impairing the obligation of contracts," was placed in the Const.i.tution.[1391] The effect of this on the public mind, as reported by conservatives like Marshall, is stated in the _Commercial Gazette_ of Boston, January 28, 1799: "State laws protected debtors"

when they "were citizens ... [and] the creditors foreigners. The federal const.i.tution, prohibiting the states to clear off debts _without payment_, by exacting _justice_, seemed ... to establish _oppression_."

The debtors, therefore, "p.r.o.nounced ... the _equal_ reign of law and debt-compelling justice, the beginning of an insidious attack on liberty and the erection of aristocracy."

The "contract clause" of the Const.i.tution was now to be formally challenged by a "sovereign" State for the first time since the establishment of the National Government. Georgia was to a.s.sert her "sovereignty" by the repudiation of her laws and the denial of contractual rights acquired under them. And this she was to do with every apparent consideration of morality and public justice to support her.

The tidings of the corruption attending the second "Yazoo" sale were carried over the State on the wings of fury. A transaction which six years before had met with general acquiescence,[1392] now received deep-throated execration. The methods by which the sale was pushed through the Legislature maddened the people, and their wrath was increased by the knowledge that the invention of the Connecticut schoolmaster had tremendously enhanced the value of every acre of cotton-bearing soil.

Men who lived near Augusta a.s.sembled and marched on the Capital determined to lynch their legislative betrayers. Only the pleadings of members who had voted against the bill saved the lives of their guilty a.s.sociates.[1393] Meetings were held in every hamlet. s.h.a.ggy backwoodsmen met in "old-field" log schoolhouses and denounced "the steal." The burning in effigy of Senator Gunn became a favorite manifestation of popular wrath. The public indignation was strengthened by the exercise of it. Those responsible for the enactment of the law found it perilous to be seen in any crowd. One member left the State.

Another escaped hanging only by precipitate flight.[1394] Scores of resolutions were pa.s.sed by town, rural, and backwoods a.s.semblages demanding that the fraudulent statute be rescinded. Pet.i.tions, circulated from the "mansion" of the wealthy planter to the squalid cabin of the poorest white man, were signed by high and low alike. The grand juries of every county in Georgia, except two, formally presented as a grievance the pa.s.sage of the land sale act of 1795.

Among other things, the land sale act required the Senators and Representatives of Georgia in Congress to urge the National Government to speed the making of a treaty with the Indian tribes extinguis.h.i.+ng their t.i.tle to the lands which the State had sold. Upon receiving a copy of the nefarious law, Senator James Jackson of Georgia laid it before the Senate, together with a resolution declaring that that body would "advise and consent" to the President's concluding any arrangement that would divest the Indians of their claims.[1395]

But although he had full knowledge of the methods by which the act was pa.s.sed, the records do not show that Jackson then gave the slightest expression to that indignation which he so soon thereafter poured forth.

Nor is there any evidence that he said a word on the subject when, on March 2, 1795, Georgia's t.i.tle again came before the Senate.[1396] Some time afterward, however, Senator Jackson hurried home and put himself at the head of the popular movement against the "Yazoo Frauds." In every corner of the State, from seaport to remotest settlement, his fiery eloquence roused the animosity of the people to still greater frenzy. In two papers then published in Georgia, the _Savannah Gazette_ and the _Augusta Chronicle_, the Senator, under the _nom de guerre_ of "Sicillius," published a series of articles attacking with savage violence the sale law and all connected with the enactment of it.[1397]

It came out that every member of the Legislature who had voted for the measure, except one,[1398] had shares of stock in the purchasing companies.[1399] Stories of the extent of the territory thus bartered away kept pace with tales of the venality by which the fraud was effected. Bad as the plain facts were, they became simply monstrous when magnified by the imagination of the public.

Nearly every man elected[1400] to the new Legislature was pledged to vote for the undoing of the fraud in any manner that might seem the most effective. Senator Jackson had resigned from the National Senate in order to become a member of the Georgia House of Representatives; and to this office he was overwhelmingly elected. When the Legislature convened in the winter of 1795-96, it forthwith went about the task of destroying the corrupt work of its predecessor. Jackson was the undisputed leader;[1401] his a.s.sociates pa.s.sed, almost unanimously, and Governor Irwin promptly approved, the measure which Jackson wrote.[1402]

Thus was produced that enactment by a "sovereign" State, the validity of which John Marshall was solemnly to deny from the Supreme Bench of the Nation.

Jackson's bill was a sprightly and engaging doc.u.ment. The preamble was nearly three times as long as the act itself, and abounded in interminable sentences. It denounced the land sale act as a violation of both State and National Const.i.tutions, as the creation of a monopoly, as the dismemberment of Georgia, as the betrayal of the rights of man. In this fas.h.i.+on the "whereases" ran on for some thousands of words. On second thought the Legislature concluded that the law was worse than unconst.i.tutional--it was, the "whereases" declared, a "usurped act."

That part of the preamble dealing with the mingled questions of fraud and State sovereignty deserves quotation in full:

"And Whereas," ran this exposition of Const.i.tutional law and of the nature of contracts, "divested of all fundamental and const.i.tutional authority which the said usurped act might be declared by its advocates, and those who claim under it, to be founded on, fraud has been practised to obtain it and the grants under it; and it is a fundamental principle, both of law and equity, that there cannot be a wrong without a remedy, and the State and the citizens thereof have suffered a most grievous injury in the barter of their rights by the said usurped act and grants, and there is no court existing, if the dignity of the State would permit her entering one, for the trial of fraud and collusion of individuals, or to contest her sovereignty with them, whereby the remedy for so notorious an injury could be obtained; and it can no where better lie than with the representatives of the people chosen by them, after due promulgation by the grand juries of most of the counties of the State, of the means practised, and by the remonstrances of the people of the convention, held on the 10th day of May, in the year 1795, setting forth the atrocious peculation, corruption, and collusion, by which the usurped act and grants were obtained."[1403]

At last the now highly enlightened Legislature enacted "that the said usurped act ... be declared null and void," and that all claims directly or indirectly arising therefrom be "annulled." The lands sold under the Act of 1795 were p.r.o.nounced to be "the sole property of the State, subject only to the right of treaty of the United States, to enable the State to purchase, under its pre-emption right, the Indian t.i.tle to the same."[1404]

Such was the law which John Marshall was to declare invalid in one of the most far-reaching opinions ever delivered from the Supreme Bench.

The Legislature further enacted that the "usurped act" and all "records, doc.u.ments, and deeds" connected with the Yazoo fraud, "shall be expunged from the face and indexes of the books of record of the State, and the enrolled law or usurped act shall then be publicly burnt, in order that no trace of so unconst.i.tutional, vile, and fraudulent a transaction, other than the infamy attached to it by this law, shall remain in the public offices thereof." County officials were, under the severest of penalties for disobedience, directed to "obliterate" all records of deeds or other instruments connected with the anathematized grants, and courts were forbidden to receive any evidence of t.i.tle of any kind whatever to lands from the grantees under the "usurped act."[1405]

The Governor was directed to issue warrants for repayment to those who, in good faith, had deposited their purchase money, with this reservation, however: "Provided the same shall be now therein."[1406]

After six months all moneys not applied for were to become the property of Georgia. To prevent frauds upon individuals who might otherwise purchase lands from the pirate companies, the Governor was directed to promulgate this brief and simple act "throughout the United States."