by Peter Irons
Between his bold assertion in 1803 of judicial supremacy in Marbury v. Madison and his death in 1835, John Marshall wielded more influence over national affairs than any of the four presidents who followed Thomas Jefferson. During this period of expansive growth in territory, population, and technology, Marshall read the Constitution as a charter for his nationalistic vision of an American empire. Emboldened by his early victories, the Chief Justice enlisted his compliant associates into a political force—the Marshall Party, in effect—that could ignore the electorate and bypass the ballot box.
During the first third of nineteenth century, while Marshal held office, the number of Americans tripled, from five to fifteen million. The nation’s territory also tripled in size, through the Louisiana Purchase of 1803 and the acquisition of Florida from Spain. The national economy boomed as well, spurred by construction of canals, turnpikes, and railroads. The Eric Canal opened in 1825, and one thousand miles of railroad track had been laid by 1835. The Expanding national transportation network—financed largely with state and federal funds—speeded the products of farms and factories to domestic consumers and spurred a growing foreign trade. The rapid growth of manufacturing gave rise to corporations as instruments for raising capital, and the steady development of a national economy led to calls for a national currency and a centralized banking system.
This almost explosive growth in population, area, and wealth did not come without conflict, some of it violent. Thomas Jefferson, who wrote that “all men are created equal,” adopted a policy of Indian removal to pave the way for westward expansion. American soldiers pushed the Indians from their native lands at bayonet point, forcing them into desolate “reservations” and killing thousands of those who resisted. The federal government was so determined to take Indian lands that it defied a ruling in 1831 by Chief Justice Marshall that Indian tribes were “dependent domestic nations” with right to lands they did not voluntarily cede to the United States. After the Court issued its decision in Worcester v. Georgia, President Andrew Jackson reportedly answered, “John Marshall has made his decision; now let him enforce it.” Jackson defied the Court’s ruling and federal troops began expelling the Creek, Chickasaw, and Cherokee tribes from their lands, to which they held title by treaties the government refused to honor. This sorry episode ended in 1838 with the forced march of seventeen thousand Cherokees to western territory in what is now Oklahoma. More than four thousand died on the “Trail of Tears” from disease, exhaustion, and starvation
Other groups suffered from the growth of American capitalism. The replacement of household weaving with the factory system in textiles brought whole families into noisy, dusty mills, Children as young as flour or five labored with their parents, tending looms from dawn to dusk. Railroad workers and miners died by the thousands under the wheels of trains or in rockfalls and explosions. There were no laws to protect the health or safety of America’s industrial workers, and they had no legal right to join unions, which state courts—following English common law—outlawed as “criminal conspiracies.” It is hardly a radical notion to note that those who reaped the profits of American expansion—merchants, financiers, manufacturers, and plantation owners—did so at the expense of the workers, small farmers, and slaves who outnumbered the economic elite but could not outvote them. Even the presidential victories of Andrew Jackson in 1828 and 1832, riding a populist wave of protest against bankers and businessmen, did not dislodge—or even threaten—those who controlled the economy and took the biggest share of the national wealth.
No provision of the Constitution held more importance for those who invested in American expansion than the clause in Section 10 of Article I that bars states from passing any law “impairing the obligation of contracts.” Protecting private bargains from state interference had motivated many of the Constitution’s framers, most notably James Madison. “In the internal administration of the states,” he wrote in the preface to his convention notes, “a violation of contracts had become familiar,” a problem compounded by “occlusions of the Courts of justice” in deciding contract disputes. Providing “more effectively for the protection of private right,” he also noted, “more perhaps than anything else, produced this convention.”
Contract law became a crucial issue during the first third of the nineteenth century because of the frenzied land speculation as the nation’s boundaries and population marched south and west. Title to land changed hands frequently; private owners bought and sold land with contracts whose enforcement depended on state law; and state legislatures sold public land with grants that formed binding contracts. A considerable number—figures are hard to find—of land transactions wound up in court, and judges struggled to interpret contract terms that were often poorly drafted and imprecise in meaning. Yielding to political pressure, state legislatures passed many laws that upset the contracted bargains of buyers and sellers, and pressure mounted on the Supreme Court to stop legislative incursions into this common-law field.
The Court first interpreted the Contract Clause in Fletcher v. Peck in 1810. It would be hard to imagine a lawsuit more tainted with corruption and collusion. The case began in 1795 with the participation of a Supreme Court justice in land speculations that smelled of fraud. Justice James Wilson put up $25,000 for ten shares in the Georgia Company, which entitled him to 750,000 acres of land in a huge tract—about 35 million acres—west of the Yazoo River, including most of what is now Alabama and Mississippi. The Georgia legislature granted this land to four companies, all loosely associated, for less than two cents an acre. The land speculators then sold chunks of their holdings for ten cents an acre, reaping enormous profits. The sudden rise in land values reflected the recent invention of the cotton gin by Eli Whitney; the Yazoo lands were ideal for raising cotton.
There is nothing wrong with buying low and selling high; the stock market is based on this principle. But there is everything wrong with contracts obtained through bribery and fraud. Many of the Georgia lawmakers who made the Yazoo land grants to Justice Wilson and his fellow speculators were paid for their votes. One state senator later testified that a colleague gave him $2,000 for his vote. “I asked him how he got it,” Senator Clayton said. Senator Thomas replied that “it is nothing to you, take care of it, and smiled.” Another senator offered a state representative “ten likely negroes” for his vote.
The bribery of Georgia’s lawmakers was so obvious that the state’s voters. threw all out but two in the next election. Residents of Augusta actually marched on the state capital, determined to lynch the corrupt lawmakers. The reform legislature passed a law in 1796 that recited the “self evident proof of fraud” in the Yazoo land grants and annulled the contracts held by the corrupt purchasers. Robert Morris, the wealthy Pennsylvania merchant who financed George Washington’s ragtag Continental Army and helped to frame the Constitution, spent three years in debtors’ prison for his role in the Yazoo scandals. Justice James Wilson, whose land speculations also landed him in prison, participated in a scheme to block Georgia’s annullment law by selling land grants to “innocent” purchasers.
The evidence of collusion in the Yazoo lands case is circumstantial but strong. Robert Fletcher of New Hampshire, one of the “innocent” purchasers, filed suit against John Peck of Massachusetts in 1803 to “quiet” the title to his land, which would remove any legal barriers to its resale. The Eleventh Amendment barred Fletcher, an investor in the New England Mississippi Company, from suing Georgia for annulling his purchase from Peck, and the Georgia legislature had forbidden state judges to hear cases stemming from the land sales. But Article III of the Constitution gives federal courts jurisdiction over suits “between citizens of different states.” The evidence points to an agreement between Fletcher and Peck to use the federal courts to undo the Georgia law and uphold the land sales to buyers who had “innocently” purchased land originally secured through fraud and bribery.
The case of Fletcher v. Peck
bounced through lower courts for several years before it landed in the Supreme Court in 1809. The speculators who sold the tainted Yazoo land—including John Peck—hired the biggest guns of the American bar to argue this case. For reasons that remain obscure, the case was argued twice. In the first round, John Quincy Adams—a future president—represented Peck. Adams was replaced in 1810 by Joseph Story, an illustrious lawyer who then represented Massachusetts in Congress, and who was placed on the Court the following year by President James Madison.
Fletcher, who apparently hoped to lose his case, chose the same lawyer for each argument. He could not have found a better—or worse—lawyer for the task. Luther Martin, who had loudly opposed ratification of the Constitution, appeared before the Court in 1809 so drunk that the justices adjourned the argument. until he sobered up. Whether Martin was drink or sober the next year made no difference in the outcome. Joseph Story was not only a far superior lawyer, but he boasted of his access to the justices. “The scene of my greatest amusement is the Supreme Court,” he wrote to a friend in 1808. “I daily spend several hours there, and generally when disengaged, dine and sup with the judges.” During the first decade of the Marshall Court, the justices shared the same boardinghouse in Washington; eating and drinking with them gave Story an advantage over Martin, who was not invited to these convivial gatherings.
The Court’s decision in Fletcher v. Peck did not surprise either party in this collusive suit. Chief Justice Marshall, writing for the Court, ignored the case’s tawdry history. “The importance and difficulty of the questions” raised in this case, he piously stated, “are deeply felt by the court.” The Georgia legislature that made the original grants “was fully competent” to convey land “to those who were willing to purchase,” he ruled. Marshall then moved to the question of Robert Fletcher’s purchase of Yazoo lands from John Peck. Who was the “innocent” party in this case? Peck had originally bought land from those who bribed the Georgia lawmakers, and Fletcher then bought this land from Peck. Given the national publicity about the Yazoo land frauds, it is hard to believe that neither man had knowledge of his tainted purchase.
But Marshall covered his judicial eyes, like the blindfolded statue of Liberty. His opinion absolved both Fletcher and Peck of legal blame. “If the original transaction was infected with fraud,” he wrote, “these purchasers did not participate in it, and had no notice of it. They were innocent.” This statements was, in truth, the rankest form of the “sophistical” reasoning that Thomas Jefferson had earlier accused Marshall of employing to justify the doctrine of judicial supremacy. Under Marshall’s reasoning in Fletcher, “when a law is in its nature a contract” and creates “vested rights” in purchasers of property, “a repeal of the law cannot divest those right” in derogation of the constitution.
The original fraud of the Yazoo land grants did not bother Marshall. Just one question concerned him: “What is a contract?” The answer was simple: “A contract is a compact between two or more parties,” whether private parties or states. Proceeding from this premise, the only obstacle in Marshall’s path was Georgia’s claim that “sovereign” states could revise contract laws without regard for constitutional limitations. Marshall declared that Georgia was not a “sovereign power” and could not pass laws “impairing the obligations of contract.” His ruling stemmed from the statement of Justice James Wilson in Chisholm v. Georgia in 1793 that “Georgia is not a sovereign state.” Judicial nationalism reached new heights in the Fletcher decision, but states’ rights advocates could only deplore Marshall’s decision; his opponents knew that efforts to reverse the outcome through constitutional amendment would be futile.
Marshall’s opinion in Fletcher relied less on legal reasoning than on political factors. The Chief Justice admitted as much when he wrote that “the people of the United States” had adopted the Constitution “to shield themselves and their property from the effects of those sudden and strong passions to which men are exposed.” The “passions” that Marshall obviously had in mind were those of lawmakers who responded to political pressures for easy money and bankruptcy laws. But in the Yazoo case, the “passions” of the Georgia lawmakers in 1795 were clearly motivated by personal greed. In ruling that Robert Fletcher and John Peck were both “innocent” purchasers of Yazoo land, Marshall refused to hold up a judicial “shield” to protect those whose property titles were tainted by corruption and fraud.
The stench of the Yazoo land scandal lingered in the courtroom for years, as the public suspected the justices of complicity in the frauds. Marshall’s refusal to examine the real issue—whether a law enacted through widespread bribery could be repealed by subsequent legislation—struck most observers as judicial evasion of duty. His claim that the case was simply a contract dispute between two private parties ignored the collusion between Fletcher and Peck.
Justice William Johnson agreed with the outcome of Marshall’s opinion, but he could not remain quiet in this malodorous case. “I have been very unwilling,” he wrote in reluctant concurrence, “to proceed to the decision of this cause at all. It appears to me to bear strong evidence on the face of it of being a mere feigned case.” Only his admiration for John Quincy Adams and Joseph Story “has induced me to abandon my scruples in the belief they would never consent to impose a mere feigned case upon this Court.” Hardly anyone outside the Court shared Johnson’s professed belief. But Marshall was determined to block a possible deluge of contract fraud cases stemming from shady land deals. Voiding a law passed by honest lawmakers and upholding the actions of their dishonest predecessors gave the Chief Justice no pause. The end of protecting the “absolute rights” of property against state interference justified the means of enforcing fraudulent contracts in a feigned case.
Marshall was himself involved in another land title case, which came before the Supreme Court twice, first in 1813 under the caption Fairfax’s Devisee v. Hunters’s Lessee and finally in 1816 as Martin v. Hunter’s Lessee. Two new justices, placed on the Court by President James Madison, participated in deciding this complex and costly lawsuit. Gabriel Duvall of Maryland and Joseph Story of Massachusetts took their seats on the same day in 1812 and served for a total of fifty-six years. Both replaced men from their home states, and in many ways each resembled his predecessor. Duvall took the seat of Samuel Chase, the irascible and vindictive Federalist who survived an impeachment trial in 1805 but faded into obscurity during his final six years on the bench. Duvall, who joined the Court at the age of fifty-nine, was quieter than Chase; in fact, he became totally deaf and wrote only seventeen opinions for the Court in twenty-three years. His colleagues, their work hindered by Duvall’s deafness and senility, finally prevailed on him to resign in 1835, shortly before Marshall’s death. Neither Chase nor Duvall, who between them occupied the Court’s “Maryland seat” for almost forty years, wrote anything of significance on constitutional law while they served under John Marshall.
Joseph Story, the son of a Massachusetts physician who had been one of the “Indians” at the Boston Tea Party, replaced William Cushing, whose twenty-one years on the Court made him the longest-serving of George Washington’s eleven justices. Cushing and Story both attended Harvard, and both opposed slavery on moral grounds. Story occupied the Court’s “Massachusetts seat” for thirty-four years, and proved as loyal to Marshall’s nationalist views as Cushing. Much like justice William Brennan under Chief Justice Earl Warren, Story became Marshall’s “brain,” adding his legal acumen to the Chief’s political goals. Story was the Court’s leading scholar of the nineteenth century; his three volume Commentaries on the Constitution, published in 1833, influenced several generations of judges, lawyers, and law professors. The story is probably apocryphal that Marshall would often hand Story the draft of an opinion and say, “This is the law; now you find the precedents.” But Story knew all the precedents, and his opinions bristled with citations to decisions that had long gathered dust in the Court’s lib
rary.
The facts behind Martin v. Hunter’s Lessee are incredibly tangled, but they deserve recounting to illustrate the problems caused by conflicting land claims in the early years of American law. This legal snarl began during the colonial period in Virginia, with a grant by King Charles II to Lord Fairfax of a huge estate in northern Virginia, along the banks of the Potomac River. During the Revolution, the Virginia legislature passed a law that “sequestered” the estates of British subjects and placed them under state control. Lord Fairfax, a prominent Tory Loyalist who feared for his life, had earlier fled to England, where he died in 1781. Before his death, however, Fairfax had willed his estate to his nephew, Denny Martin, who was a British subject. In 1782, the Virginia legislature passed another law that barred aliens such as Martin from inheriting property in the state.
Some time between 1777 and 1782, David Hunter obtained a grant of eight hundred acres of the Fairfax estate from Virginia. But when he tried to occupy the land, he was warned off by Thomas Martin, the younger brother of Denny Martin and a citizen of Virginia, who claimed that he held title to the land under another Virginia law, passed in 1779. Thomas Martin claimed that this statute, poorly drafted and difficult to unravel, restored title to the original owners of confiscated estates. The conflict over this land was further complicated by the Jay Treaty of 1783 between England and the United States. Under this treaty, Congress agreed to recommend to the states that they return confiscated property to Loyalists such as Lord Fairfax. The treaty, however, did not bind the states to its terms, and Virginia ignored this provision.