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

Incited by similar attacks in the Republican press of Baltimore,¹³⁴⁰ the more ardent patriots of that place resolved publicly to execute Marshall in effigy, along with Burr, Blennerhassett, and Martin, On the morning of November 3, satirical handbills, announcing this act of public justice, were scattered over the city:

"AWFUL!!!

"The public are hereby notified that four 'choice spirits' are this afternoon, at 3 o'clock, to be marshaled for execution by the hangman, on Gallows Hill, in consequence of the sentence pronounced against them by the unanimous voice of every honest man in the community.

"The respective crimes for which they suffer are thus stated in the record:

"First, Chief Justice M. for a repetition of his X.Y.Z. tricks, which are said to be much aggravated by his felonins [sic] capers in open Court, on the plea of irrelevancy;

"Secondly, His Quid Majesty [Burr], charged with the trifling fault of wishing to divide the Union, and farm Baron Bastrop's grant;

"Thirdly, B[lennerhassett], the chemist, convicted of conspiracy to destroy the tone of the public Fiddle;

"Fourthly, and lastly, but not least, Lawyer Brandy-Bottle, for a false, scandalous, malicious Prophecy, that, before six months, 'Aaron Burr would divide the Union.'

"N.B. The execution of accomplices is postponed to a future day."¹³⁴¹

Martin demanded of the Mayor the protection of the law. In response, police were sent to his house and to the Evans Hotel where Blennerhassett was staying. Burr and the faithful Swartwout, who had accompanied his friend and leader, were escorted by a guard to the stage office, where they quickly left for Philadelphia.¹³⁴² Martin's law students and other friends armed themselves to resist violence to him.

A policeman named Goldsmith notified Blennerhassett that a great mob was gathering, "had everything prepared for tarring and feathering and would, … if disappointed or opposed, tear Martin [and Blennerhassett] to pieces." The manager of the hotel begged Blennerhassett to hide in the garret of the hostelry. This the forlorn Irishman did, and beheld from a window in the attic what passed below.

Shouting and huzzaing men poured by, headed by fifers and drummers playing the "Rogue's march." Midway in the riotous throng were drawn two carts containing effigies of Chief Justice Marshall and the other popularly condemned men "habited for execution… Two troops of cavalry patrolled the streets, not to disperse the mob, but to follow and behold their conduct." At Martin's house the crowd stopped for a moment, hurling threats and insults, jeering at and defying the armed defenders within and "the cavalry without."

Making "as much noise as if they were about to destroy the city," these devotees of justice and liberty proceeded to the place of public execution. There, amid roars of approval, the effigy of John Marshall, Chief Justice of the United States, was hanged by the neck until the executioner pronounced the stuffed figure to be dead. About him dangled from the gibbet the forms of the "traitors" – Aaron Burr and Harman Blennerhassett – and also that of Luther Martin, who had dared to defend them and had thus incurred the malediction of Thomas Jefferson and "the people."¹³⁴³

In the Senate Giles reported a bill to punish as traitors persons who permitted or aided in the perpetration of certain acts, "although not personally present when any such act was done"; and he supported it in an argument of notable ability. He powerfully attacked Marshall, analyzed his opinions in the Burr case, contrasted them with those of other National judges, and pointed out the resulting confusion in the interpretation of the law. All this was spoken, however, with careful regard to the rules of parliamentary discussion.¹³⁴⁴

Legislation was necessary, said Giles; as matters stood, the decisions of judges on treason were like Congress "enacting our speeches, interspersed with our laws." With what result? No two judges have yet delivered the same opinion upon some of the most essential features of treason. Take for example the British doctrine that, in treason, accessories are principals. Were they in America? "Judge Chase and others say they are. Judge Marshall says he does not know whether they are or not, but his reasoning would go to show that they are not."¹³⁴⁵

Solely to gratify vox populi, the Senate next indulged in a doubtful performance. An attempt was made to expel Senator John Smith of Ohio. With only a partial examination, and without allowing him to call a single witness in his own behalf beforehand, a special Senate Committee¹³⁴⁶ presented a report concluding with a resolution to expel Smith because of "his participation in the conspiracy of Aaron Burr against the peace, union and liberties of the people of the United States."¹³⁴⁷ This surprising document was the work of John Quincy Adams,¹³⁴⁸ who apparently adopted the ideas and almost the language of Lucius.

Burr's conspiracy, wrote Adams, was so evil and was "established by such a mass of concurring and mutually corroborative testimony" that the "honor" of the Senate and "the deepest interests of this nation" required that nobody connected with it should be a member of Congress. After an unctuous recitation of accepted generalities and a review of the expulsion of Senator Blount, together with an excellent statement of the law of parliamentary bodies in such cases, Adams got down to the business of destroying John Marshall.¹³⁴⁹

Marshall had "withheld from the jury … a great part of the testimony which was essential to [Burr's] conviction… In consequence of this suppression of evidence" the trial jury had not been allowed to find a verdict of guilty against the traitor. Marshall's "decisions, forming the basis of the issue upon the trials of Burr … were the sole inducements upon which the counsel for the United States abandoned the prosecution against him" (Smith). An American grand jury had charged Senator Smith with being "an accomplice" of these diabolical plans, and the safety which Marshall's decisions in the Burr trial had thrown around Smith and other associates of the traitor "cannot, in the slightest degree, remove the imputation" which the indictment of Smith had brought to his door.

"If," wrote Adams, "the daylight of evidence combining one vast complicated intention, with overt acts innumerable, be not excluded from the mind by the curtain of artificial rules, the simplest understanding cannot but see what the subtlest understanding cannot disguise, crimes before which ordinary treason whitens into virtue" and beyond "the ingenuity of a demon."

Adams continued: "Whether the transactions proved against Aaron Burr did or did not amount, in technical language, to an overt act of levying war, your committee have not a scruple of doubt … that, but for the vigilance and energy of the government, and of faithful citizens under its directions … in crushing his designs, they would … have terminated not only in war, but in a war of the most horrible description, … at once foreign and domestic."

To such lengths can popular demand, however unjust, drive even cold, unemotional, and upright men who are politically ambitious. Adams's Federalist confrères reacted quickly;¹³⁵⁰ and the New York Evening Post sharply criticized him.¹³⁵¹ When the report came up in the Senate, James A. Bayard of Delaware, and James Hillhouse of Connecticut, attacked it and its author with "unusual virulence." Bayard was especially severe.¹³⁵² Thus assailed, Adams was cast into black depression: "It is indeed a fiery ordeal I have to go through. God speed me through it!" he wrote in his diary that night.¹³⁵³

William Branch Giles cast the deciding vote which defeated Adams's resolution – the Senate refusing to expel Smith by a vote of 19 yeas to 10 nays,¹³⁵⁴ just one short of the necessary two thirds. The Virginia Republican Senator attacked the resolution with all his fiery eloquence, and compelled the admiration even of Adams himself.¹³⁵⁵ "I shall vote against the resolution," Giles concluded, "solely from the conviction of the innocence of the accused."¹³⁵⁶

Herefrom one may judge the temper of the times and the perilous waters through which John Marshall had been compelled to pilot the craft of justice. If that "most deliberative legislative body" in our Government, and the one least affected by popular storms, was so worked upon, one can perceive the conditions that surrounded the Chief Justice in overcrowded Richmond during the trial of Aaron Burr, and the real impending danger for Marshall, after the acquittal of the man whom Jefferson and the majority had branded with the most hideous infamy.

Fortunate, indeed, for the Chief Justice of the United States, and for the stability of American institutions, that the machinery of impeachment was, during these fateful months, locked because the President, Congress, and the Nation were forced to give their attention to the grave foreign situation which could no longer be ignored.

Going about his duties in Washington, or, at home, plodding out to the farm near Richmond, joking or gossiping with friends, and caring for his afflicted wife, Marshall heard the thunders of popular denunciation gradually swallowed up in the louder and ever-increasing reverberations that heralded approaching war with Great Britain. Before the clash of arms arrived, however, his level common sense and intelligent courage were again called upon to deal with another of those perplexing conditions which produced, one by one, opinions from the Supreme Bench that have become a part of the living, growing, yet stable and enduring Constitution of the American Nation.

CHAPTER X
FRAUD AND CONTRACT

If I were to characterize the United States, it should be by the appellation of the land of speculation. (William Priest.)

By the God 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 passage. The proposed legislation was to authorize the sale to four speculating land companies¹³⁵⁷ 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 entitling 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 assured 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.¹³⁵⁸

Representative Gindrat had offered to sell his shares for one thousand dollars, the price generally given; but, securing "a better market," declined that sum.¹³⁵⁹ 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.¹³⁶⁰

After the bill had passed, Senator Robert Thomas, who had no means of acquiring ready cash,¹³⁶¹ 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.¹³⁶²

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.¹³⁶³

A saturnalia of corruption was in progress in the little village of Augusta, where the Legislature of Georgia was in session.¹³⁶⁴ 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, Associate Justice of the Supreme Court of the United States, was there with twenty-five thousand dollars in bank bills.¹³⁶⁵

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.¹³⁶⁶ Directing all was General James Gunn, United States Senator from Georgia: his first term in the National Senate about to expire, he was now reëlected by this very Legislature.¹³⁶⁷

A majority of Georgia's lawmaking body thus became financially interested in the project, and the bill passed 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.¹³⁶⁸ 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.¹³⁶⁹ Again every possible influence was brought upon the Legislature to pass this bill with utmost dispatch.¹³⁷⁰ 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.¹³⁷¹ 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 fashion 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.¹³⁷² 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 passage 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 titles had been extinguished. The lands were declared free of taxation until they should be so occupied that the settlers were represented in the Legislature.¹³⁷³ 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 title 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 petition to the Governor to reject the bill again, and hurried to the Capital where he presented it to the Chief Executive of the State.¹³⁷⁴ 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 poor¹³⁷⁵ 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.¹³⁷⁶

Moreover, the titles of the Indians, who occupied the country and who were its real owners, had not been extinguished. Under the Constitution, 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 title 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.¹³⁷⁷ 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 title to the country they inhabited. Georgia's right to their lands "depended on her power to dispossess the Indians; but however good the title 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."¹³⁷⁸

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.¹³⁷⁹ Jefferson, then Secretary of State, rendered a careful opinion on the right of Georgia to make the grant.¹³⁸⁰ 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 grantees¹³⁸¹ to compel the performance of the contract; but the Eleventh Amendment of the Constitution 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.¹³⁸² 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;¹³⁸³ 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.¹³⁸⁴ 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; associated with them, in addition to Judges Stith 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.¹³⁸⁵ 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 title 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 astonishing 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.¹³⁸⁶

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 assertions 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."¹³⁸⁷

From the Nation's beginning, the States had lax notions as to the sacredness of public contracts, and often violated the obligations of them.¹³⁸⁸ 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 substitution of property for money; but other devices were also resorted to. So it was that the provision, "no state shall pass any law impairing the obligation of contracts," was placed in the Constitution.¹³⁸⁹ 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 constitution, prohibiting the states to clear off debts without payment, by exacting justice, seemed … to establish oppression." The debtors, therefore, "pronounced … 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 Constitution was now to be formally challenged by a "sovereign" State for the first time since the establishment of the National Government. Georgia was to assert 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,¹³⁹⁰ 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 assembled 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 associates.¹³⁹¹ Meetings were held in every hamlet. Shaggy 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.¹³⁹² Scores of resolutions were passed by town, rural, and backwoods assemblages demanding that the fraudulent statute be rescinded. Petitions, 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 passage 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 extinguishing their title 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.¹³⁹³

But although he had full knowledge of the methods by which the act was passed, 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 title again came before the Senate.¹³⁹⁴ 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.¹³⁹⁵

It came out that every member of the Legislature who had voted for the measure, except one,¹³⁹⁶ had shares of stock in the purchasing companies.¹³⁹⁷ 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 elected¹³⁹⁸ 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;¹³⁹⁹ his associates passed, almost unanimously, and Governor Irwin promptly approved, the measure which Jackson wrote.¹⁴⁰⁰ 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.