Volume III Part 68 (1/2)

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.”