The Life of John Marshall Volume 3 of 4

tes, it should be by the appellation of

this way, our nation will sink into

by such stomachs. They buy and sell co

peal of the law cannot divest those rights. The people can act only by their agents and, within th

man. An important bill was then before that body, and Mr. Longstreet employed effective methods to forward its passage. The proposed legislation was

ht 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 chatti

dvised 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

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 wou

but, securing "a better market," declined that sum.[1361] Representative Lachlan M'Intosh received six sh

ouse where he boarded and asked Philip Clayton, the owner, to keep it for him. Clayton was curious-did Senator Thomas get the money for

thousand acres, but Shepperd was not interested; then Philip Clayton, the

oring 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 we

e 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] Directi

ow, 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

e 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] I

e 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 Go

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

tary 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 Go

t 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, w

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 o

d 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 title to the country they inhabited. Georgia's right to their lands "

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

ry, 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 in

ster; 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.[1387] Also, as has bee

le 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 ever

dventure far more valuable in possibilities for the investors, and incomparably more attractive in the probability of polit

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 suprem

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.

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.[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

ishment of the National Government. Georgia was to assert her "sovereignty" by the repudiation of her laws and the denial of contractu

h general acquiescence,[1392] now received deep-throated execration. The methods by which the sale was pushed through the Legislature maddened the people, and the

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 passed by town, rura

dian 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 Senat

orgia's title 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

hasing companies.[1399] Stories of the extent of the territory thus bartered away kept pace with tales of the venality by which t

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 associa

ional Constitutions, as the creation of a monopoly, as the dismemberment of Georgia, as the betrayal of the rights of man. In this fashion the "whereases" ran on for some thousands of words. On second thought the Legislature

ut 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 ca

indirectly arising therefrom be "annulled." The lands sold under the Act of 1795 were pronounced to be "the sole property of the State, subject on

clare invalid in one of the most far-reaching

e publicly burnt, in order that no trace of so unconstitutional, 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 di

ided 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 individual

by the members of both branches around the same. The Secretary of State[1407] ... shall then produce the enrolled bill and usurped act from among the archives of the State and deliver the same to the President of the Senate, who shall examine the same, and shall then deliver the same to the Speaker of the House of Representatives for like examinati

inal dash of color was added. Some one gifted with dramatic genius suggested that the funeral pyre of such unholy legislation should not be lighted by earthly hands, but b

so profoundly moved by accounts of the attempt to plunder the State, that a hatred of the corrupt plot and of all connected with it became an obsession that lasted as long as he li

cent purchasers." Some, however, must have been thoroughly familiar with the fraud.[1412] The most numerous sales were made in the Middle States and in New England. The land companies issued a prospectus,[1413] setting out their title, which appeared to be, and indeed real

t increased. Buying and selling of land became the one absorbing business of those who had either money or credit. Some of the most prominent and responsible men in New England acquired large tracts.[1415] The companies received payment

t the Legislature of Georgia was about to repeal the act under which the companies had bought the lands, numerous sales, great and small, had been made. In that city alone more than two millions of dollars had been invested, and this had been paid or pledged by "every class of men, eve

lly ruined. So a large number of the purchasers organized the New England Mississippi Company for the purpose of defending their interests. A written opinion upon the validity of their titles was procured from Alexander Hamilton, who w

t by the purchasers, and the passage of the rescinding act. Hamilton declared this latter act to be invalid because it plainly violated the contract clause of the Constitution. "Every grant ..

ians. It was feared that depredations by whites would cause another outbreak of the natives. A resolution was adopted authorizing the President to obtain from Georgia the cession of her "claim to the whole or any part of the land within the ... Indian boundaries," and recommending that he pr

ufus King of New York, requesting that the Attorney-General report to the Senate all data bearing on Georgia's title to the territory sold to the land comp

to a special committee, headed by Senator Aaron Burr of New York, who, on May 20, 1796, reported a resolution authorizing the President to treat with Georgi

gia had no right to sell. Neither could such a device validate fraud. Much litigation had already grown out of the swindle, and the Georgia rescinding act had "brought ... matters to a crisis, and one decision of the supreme court of the United States may probably influence the decisions of lower courts."[1428] Bishop discussed brilliantly, and at length, every possible question involved. The power of the State to pass and repeal laws was "wholly uncontrolable,"[1429] he asserted. The history of other dishonest and imprudent speculations was examined-th

ed his opinion that the Georgia grant was inviolable.[1433] It was an able and learned performance. The title of Georgia to the lands was carefully examined and held to be indefeasible. The sale of 1795 was set fort

37] If Georgia thought the sale act unconstitutional, she should have brought suit in the United States Court to determine that purely judicial question. The same was true as to the allegations of fraud and corruption in the passage of the measure. If any power could do so, the courts and they al

National Government and Georgia, and also to secure from that truculent sovereignty the cession to the Nation of the lands claimed by the State.[1439] In the somewhat extend

es, settle British and Spanish claims, ultimately admit the vast domain as a State of the Union, and reserve five million acres for the purpose of quieting all other demands. A later law[1441] directed the

, and statesmanlike. It was laid before the House on February 16, 1803. Although the titles of the claimants could "not be supported," still, because most of the titles had been acquired in good faith, and because it would be injurious to

ad passed the rescinding act. This was entirely legal and constitutional because "a subsequent Legislature of an individual State has an undoubted right to repeal any act of a preceding Legislature, provided such repeal be not forbidden by the constitution of such State, or of the United States." Neither the fundamental law of Georgia nor of the Nation forbade the repeal of the corrupt law of 1795. Claims under this nullified and "usurped" law were not recognized by the compact of cession between Georgia and the

i Company[1446] presented its case with uncommon ability. In a memorial to Congress[1447] they set forth their repeated applications to President, Congress, and the commissioners for protection. They were, they said, "constantly assured" that the r

itle and they would gladly submit the matter to that tribunal. It was only because Congress seemed to prefer settlement by compromise that they again presented the facts and rea

ely for Jefferson, the most influential agent of the New England claimants was the one Administration official who had most favors to bestow-Gideon Granger of Connecticut, the Postmaster-General.[1449] He was the leader of the lobby which the New Engl

He needed to husband all his strength for the conduct of the trial of Chase[1450] and to solidify his party, rather than to waste his physical resources, or to alienate a single Republican. On the report of the Committee of Cla

llainy was passed in 1795 ... it caused a sensation scarcely less violent than that produced by the passage of the stamp act." Those who assert their ignorance of "this infamous act" are gross and willful liars.

asers." Granger "seems to have an unfortunate knack of buying bad titles. His gigantic grasp embraces with one hand the shores of Lake Erie,[1455] and stretches with the other to the Bay of Mobile.[1456] Millions of acres are easily digested by such stomachs.... They buy and sell corruption in the gross." They gamble for "nothing less than the patrimony of the people." Pointing his long

Legislature to annul a contract; of the power of the Judiciary to declare a legislative act void because of corruption in the enactment of it; the c

pointed out that the purchase by members of the Georgia Legislature of the lands sold was nothing unusual-everybody knew "that had been the case in Pennsylvania and other states." Georgia

the characters of the sellers" was a guarantee "that they could not themselves be deceived and would not deceive others." Among these, said Findley, was an eminent Justice of the Supreme Court,[1459] a United States Senator,[1460] and many other men of hitherto irreproachable standing. C

not passed the rescinding act the attention of Congress would never have been called to the alleged swindle. Then, too, everybody knew "that one session of a Legislature can

fered to a member of the House, who had accepted it, but that it had been withdrawn from him when he refused to agree to support the compromise of the Yazoo claims. Randolph declared that the plot to swindle

of the bill to carry out the compromise with the Yazoo claimants. He had mightily impressed the people, especially those of Virginia. The Richmond Enquirer, on October 7, 1806, denounced the Yazoo fraud and the compromise of the investors' claims as a "stupendous scheme of plunder." Se

Marshall was profoundly interested in the stability of contractual obligations. The repudiation of these by the Legislature of Virginia had powerfully and permanently influenced his views upon this subject.[1467] Also, Marshall's own title to part of the Fairfax estate had more than once been in jeopardy.[1468] At that very moment a suit affecting the title of his b

ter of South Carolina urged the passage of a bill to settle the claims. This led Senator James Jackson of Georgia to deliver "a violent invective against the claims, without an

of age, Joseph Story of Massachusetts, who on his first visit spent much time with Madison, Gallatin, and the Presid

g act of the Georgia Legislature; but no way had occurred to them by which they could secure such a determination from the bench. The Eleventh Amendmen

rgia lands.[1474] On May 14, 1803, he had either sold or pretended to sell to one Robert Fletcher of Amherst, New Hampshire, fifteen thousand acres of his holdings for the sum of three thousand dol

question a jury, at the October term, 1806, returned as a special verdict a learned and bulky document. It recited the historical foundations of the title to the territory in dispute; left the determination of t

dings and by the jury's special verdict. Fletcher sued out a writ of error to the Supreme Court of the United States, and so this controversy came before John Marshall. The case was argued twice, the first time, March

idential oath. At the ball that night, Judge Livingston told Adams that the court had been reluctant "to decide the case at all, as it appeared manif

udges attending,[1479] there were difficulties which would have prevented them from giving any opinion at this term had the pleadings been correct; and the Court the more readily forbo

on of the validity of that of Georgia. If that were sound, said Story, the Legislature had a right to sell the land, and a subsequent Legislature could not cancel the contract when executed. The Judiciary alone could declare what a law is or had been. Moreover, the National Constitution expressly forbade a State to pass an act impairing the obligation

tional law which bears his name. He held that the Georgia rescinding act was a violation of the contract clause of the Constitution and in doing so asserted t

ed its constitutional powers in passing the sale act.[1483] Had the corruption of the Legislature destroyed the title of Peck, an innocent purchaser? It was, cautiously said Marshall, doubtful "how far the validity of a law depends upon the motives o

vitiating cause operate on a majority, or on what number of the members? Would the act be null, whatev

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 passed 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

red 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 title good at law; he is innocent, whate

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 fra

the grantee, clothed with all the solemnities which law can bestow. This estate was transferable; and those who purchased parts of it wer

t be done under a law, a succeeding legislature cannot undo it. The past cannot be recalled by the most absolute power." The purchase of est

dividual in the community." Regardless of written constitutions, 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 indivi

ature 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 c

trument did not distinguish between grants by individuals and those by States. If a State could not pass a law imp

ople of the United States, in adopting that instrument, have manifested a determination to shield themselves and their property from the effects of those sudden and strong passions to which m

ld any one pretend to say that a State might enact an ex post facto law or pass a bill of attainde

ate 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 criti

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 b

unctuous sentences to have shifted 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

ational Judiciary had to be asserted or its inferiority conceded, so in Fletcher vs. Peck, it was necessary that the Nation's highest court should plainly lay down t

and litigious numberless titles acquired innocently and in good faith, and multitudes of contracts entered into in the belief that they were bin

e guidance of the States and the stabilizing of American business.[1491] It increased the confidence in him of the conservative elem

ed 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

ate to impair the obligation of contracts. That the Georgia Legislature was guilty of such violation even Jefferson's appointee, Justice Johnson, declared more emphatically

the moment, were highly unwelcome to the people. Throughout the country, at the end of the first decade of the nineteenth centu

n Fletcher vs. Peck was decided, and the New England Yazoo claimants immediately presented another petition for relief. Soon after Marshall's opinion was published, Randolph moved that the New England memorial be referred to the Committee of Claim

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

of youth, sprang to his feet to add his reproof of Marshall and the Supreme Court. He declared that the opinion of the Chief Justi

tition of the New England Mississippi Land Company is unreasonable, unjust, and ought not to be granted." This, if passed, would amount to a condemnation by the House of the decis

o 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 cla

ecision in Fletcher vs. Peck, the Yazoo claimants pressed Congress harder than ever for payment. On January 2

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

of the Supreme Court," asserted Troup. "They presented precisely those points for the decision of the Court which they wished the Court to decide

he Legislature of Georgia had t

the Judge

ct an estate did vest i

the Judge

quent Legislature to set aside the act

Judges, what the nature or extent of the corruption, .

d by the fraud of the original parties" had, declared Troup, been wielded by

hts and liberties of the people of this country t

your table-a decision shocking to every free Government, sapping the foundatio

o be sanctioned by the Legislature, that the Representatives of the people may corruptly betray the people, may corrup

ch must startle every man in the nation, that yo

he 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 passed this decision live and live unpunished?... The foundations of the Re

bill was lost by a vote of 55 to 59.[1500] The relief bill was delayed, however, and the claimants wer

receding 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 item

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

claimants under the decision of the Supreme Court, against whose awards he hoped never to see the bayonet employed. He

to the Constitution 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 bill is through, passed by eight majority. It excited a great deal of feeling. All the Federalists supported the bill, and some of the Dem

m a band of legislative corruptionists. Of infinitely more importance, however, is the fact that Marshall's words asserted the power of the Supreme Court of the United States

TNO

See inf

Lanier, Am. State Paper

it of Peter L.

d fifty thousand acres were allotted to the th

Thomas, Jr., Am. State Pa

it of Philip C

avit of John

w the venality of members of the Legislature.

Recent Times, 127-28; White: Statistics of the State of

arter of a century Wilson had been a heavy speculator in Indian lands, and it appears reasonable that he took this money to Augusta for the purpose

8] I

he sale of the lands. Immediately after the Legislature had chosen Gunn for a second term in the National Senate, howe

ted in the Rescinding Act of 1796, A

Chapp

this defect, was published. Senator James Gunn had knowledge that the treaty would be negotiated long before it was made known to the world or even concl

demagogical politician. He was a master of the arts alike of cajolery

s: Yazoo Land

Papers, Public

Chapp

of Georgia and the Georgia People, 181.) For a good description of pioneer houses and man

Smith,

eer, as quoted in Bishop: Geor

dams: U.

6,964; The Virginia Yazoo Company, 11,400,000 acres for $93,741;

ks: Ford,

d in 1798, Am. State Papers, Public Lands,

Chappel

67-68; Hask

who composed these several companies and the members

ns, 25, and sour

orts. In 1791 only 189,500 pounds were exported from the entire United States. Ten years later Geor

in the United States, 1

"money is the object here [Boston] with all ranks and degre

and usury.... By the God of Heaven, if we go on in this way, our nation will si

ol. i, 428,

ia said the same thing. Madison thought "a negative on the State laws could alone secure the effect." James Wilson of Pennsylvania warmly supported King's motion. John Rutledge of South Carolina moved, as a substitute for King's proposition, that States should not pass "bills of attainder nor retrospective laws." (Records, Fed. Conv.: Farrand, ii, 440.) This ca

olation of contracts through depreciated paper money rather than the invalidation of agreements by the direct action of State Legislatures. (See speech of William R. Davie in the North Carolina Convention, July 29, 1788,

ey, of Instalment laws, and of the occlusions of the Courts of Justice; although evident that all such interferences affected the rights of other States, relatively Creditor, as well as Citizens Creditors withi

Chapp

Harri

Harri

Annals, 3d Cong. 1st

d companies to encourage investors to buy. Both Jackson and Gunn were present when King offered his resolution. (Annals, 3d Cong. 1st and 2d Sess. 846.) Jac

Smith

Robert

mmissioners, Am. State Pape

zoo men" carri

Chappel

upon him to "base and malicious reports," inspired by "the blackest and the most persevering malice aided by disappointed avarice." The storm against the law

e Papers, Publi

] Ib.

e Papers, Publi

thousand dollars of the purchase money had already been appropriated

"Or his

History of Georgia from its First Discovery by Europeans to

his incident; but all other writers declare that it occurred. See Knight:

also Garland: Life of John R

a, 577-81; and

e Georgia Legislature. Hampton acquired from his partners, John B. Scott and John C. Nightingale, all of their interests in the company's purchase. This was done on January 16 and 17, immediately after Governor Mathews had signed the

f Certain Companies to the Lands lately pu

any, The Tennessee Company, and The

n. This one sale netted the Yazoo speculators almost a million dollars, while the fact that such eminent men

e Chappel

was that the Georgia land sale "threatens Indian, Spanish, and civil, war

Haski

is dated March 25, 1796. In Harper's

3d Cong. 1st an

Sess. 1251-54. The Georgia act was

b. 1255,

Ib. 1

e Papers, Publi

5] I

let was called Georgi

] Bis

8] I

29]

] Ib.

1] I

] Ib.

all doubt it had been submitted to Hamilton-perhaps prepared in collaboration with him. Harper was himself a member of o

Harpe

5] I

] Ib.

re Harper quotes

ppeared. One of the ablest of these was a pamphlet by John E. Anderson and William J. Hobby, attorneys of Augusta, Georgia, and published at that place in 1799 "at the instance of the purchasers." It is entit

State Papers, Public Lands, i, 34; report of Senator Aaron Burr, May

micable settlement" of the claims. He himself once had an interest in the purchase, but had disposed of it three years before when it appeared that the matter must come before Congress (Annals, 5th Cong. 2d Sess. 1277-78); the debate o

s. i, chap. 50, U.S. St

f Jefferson's Cabinet, to wit: James Madison, Secretary of State; Albert

he tranquillity of those who may hereafter inhabit that territory, and various equitable considerations which may be

8th Cong. 1st

1099-1122

y to Washington to lobby for the Yazoo claimants and assiduously courted the President. In Boston the Federalists said tha

gland Mississippi Company to Congress, with

t. There can be little doubt that Marshall read it attentively, since it

ral was not made a member

e supra,

, 8th Cong. 2

Cutler,

hen he made these assertions, John Randolph knew that scores of purchasers from the land companies had invested in absolute good faith and befo

Ib. 1

anger's speculations i

The Yaz

, 8th Cong. 2

nst the ratification of the Constitution in the Pennsy

James

James

8th Cong. 2d

Cutler,

8th Cong. 2d

] Ib.

e supra,

s, J. Q. A.:

l. i, 224-41,

91, 196; and

's Lessees; see vol. iv,

ms, i, 381; also see ib. 389,

Haski

ry, i, 150-53; and see Cabot to Picker

10th Cong. 1s

Am. State Papers, Pub

, U.S. Circuit

adings showed, on the face of them, that t

r vs. Peck, 6

er vs. Peck,

and Cushing were abs

, J. Q. A.: Ad

s, J. Q. A.:

argument. (See Md. Hist. Soc. Fund-Pub. No. 24, 35.) This was the first time that drink seems t

6 Cranc

Cranch,

Cranch,

Ib. 1

ol. i, 202,

Cranch,

Cranch,

] Ib.

Cranch,

ul this contract, because the State is governed by the National Constitution which forbids any State to pass any law "impairing the obligation of contracts"; that even if the contract clause we

le, letter of Governor Harrison of Indiana, Jan. 19, 1802, Am. State Papers, Public Lands, i, 123; r

ison, the Burr trial,

, 11th Cong.

Life of Georg

, 11th Cong.

97]

, 11th Cong.

12th Cong. 2d

, 12th Cong.

, 13th Cong.

Ib. 1

, 13th Cong.

] Ib.

] Ib.

Ib. 1

Ib. 1

; see also Sess. i, chap. 39, March 31,

arch 28, 1814, Private Corresponden

F VOL

PE

END

nal Draft of Jefferson's Message

ons exercising the functions of those department. Succeeding functionaries have the same right to judge of the conformity or non-conformity of an act with the constitution, as their predecessors who past it. for if it be against that instrument it is a perpetual nullity. uniform decisions indeed, sanctioned by successive functionaries, by the public voice, and by repeated elections would so strengthen a construction as to render highly responsible a departure from it. On my accession to the administration, reclamations against the Sedition act were laid before me by individual citizens, claiming the protection of the constitution against the Sedition act. called on by the position in which the nation had placed me, to exercise in their behalf my free & independent judgment, I took the act into consideration, compared it with the constitution, viewed it under every aspect of which I thought it susceptible, and gave to it all the attention which the magnitude of the case demanded. on mature deliberatio

TNO

51-53 of

ferson MSS

END

enridge containing arguments for the Repeal of th

aroline-De

ar

letter arrived, has been the c

ld, over which the plastick power of the imagination is unlimited-yours, being only physical, cannot be modulated by fancy. The ways of mine are smooth & soft; of yours, rugged & thorny. And a most prosperous traveller into the political world which I inhabit,

, a salary of 100,000 dollars. Or suppose a president in order to reward his counsel on an impeachment, and the members of the senate who voted for his acquittal, had used his influence with the legislature to erect useless tribunals, paid by him in fees or bribes. Or, lastly, suppose a long list of

ether the office thus est

s to continue, after the office i

m time to time to ordain &

under this clause, congress may abolish as well as create these judicial offices; because it does

is, then the present inferior courts may be abolished, as constitutionally as the last; if it is not, then the law for

ess may from time to time, regulate, create or abolish such courts, as the publ

cer is to continue after the office is a

" Could it mean, that he should hold this office after it was abolished? Could it mea

he did that which he might do, namely, his duty in that office; and not that he should hold an office, which did not exist, or perform duties not sanctioned by law. If therefore congress can abolish the courts, as they did

consideration closes with an idea, w

ere is no office. There must have been some other mode by which the officer should cease to be in office, than that of bad behaviour, because, if this had not been the case, the constitution would have directed "that the judges should hold their offices and salaries during

iples of the constitution. By neither is the idea for a moment tolerated, of

over the judges, and we have rushed into the principle with such precipitancy, in imitation of this our general prototype, as to have outstript monarchists

regulation of offices in England, and indeed of inferior offices in most or all countries, depends upon the legislature; it is a part of the detail of the government, which necessarily devolves upon it, and is

t require, without entailing them upon the society after these circumstances by ceasing, had convert

s faction, the legislature may certainly abolish them without infringing the constitution, whenever they are not req

et I know not how far he leans towards the revision. But he will see & the people will feel, that his administration bears a distinct character, from that of his predecessor, and of course discover this shocking truth, that the nature of our government depends upon the complection of the president, and not upon the princi

tly written, but meerly skim along the surface of the subject, without touching a radical idea. They seem to be suggested by the pernicious opinion

nance of congress-nothing can exceed the depression of the monarchists. They deprecate

with your proposal to correspond, if the political wanderings of a man, almost in a state of vegitation, will be accepted

: obt:

Taylo

TNO

otnote to 58

kenridge MS

END

livered his Opinion in Marbury vs. Madison.[1514] Also Recent Boo

ard of this case, it was only because Paterson, who was Associate Justice with Marshall when the Supreme Court decided Marbury vs. Madison, was attorney-general in New J

n this case is merely obiter dicta; but George Wythe and John Blair were on the Bench, and both of them were afterwards members o

at Marshall had any knowledge whatever of it. It arose in 1786 when the country was in chaos; no account of it appeared in the few newspapers that reached Virginia, and Varnum's description of the incident-for it can hardly be called a case-cou

vs. Singleton (North Carolina, November, 1787, 1 Martin, 4

of this important case see particularly Professor Max Farrand's analysis in the American Historical Review (xiii, 283-

Va. Ca. 20 et seq.), a case which came

tice Paterson of the Supreme Court said all that Marshall repeated in Marb

ed its power to annul legislation. Cooper vs. Telfair (February, 1800, 4 Dallas, 14). Th

it. The report, however, was not published until 1821. (See McLaughlin: The Courts, the Constitution, and Parties, 20-23.) In his opinion in this case Justice Chase emp

aw that assigned circuit duties to the judges of that appellate tribunal; and this was cited by Th

the ancient British precedents, cited by Robert Ludlow Fowler in the American Law Review (xxix, 711-25

and the case of Bowman vs. Middleton (South Carolina, May, 1792, 1 Bay, 252-55) which was not printed until 1809. (See McLaughlin, 25-26.) The same may be said of the North Carolina controvers

of History and Politics, Princeton University; also The Courts, the Constitution, and Parties, by Professor Andrew C. McLaughlin of the Department of History, University of Chicag

the Constitution," in the American Law Review (xix, 175-203), and that of Frank E. Melvin, "The

tution contains trustworthy information not readily accessibl

ublished in 1893, is still highly valuable. And Power of Federal Judiciary o

McDonough, "The Alleged Usurpation of Power by the Federal Courts," in the American Law Review (xlvi, 45-59). An ingenious and comparatively recent dissent from the theory of judicial supe

ly that of France, the Address of James M. Beck of the New York Bar, before the Pennsylvania Bar Association on June 2

TNO

118-19 of t

note 5 to p. 74

END

Cipher Letter of Aaron Burr to James

essential to concert and harmony of movement. Send a list of all persons known to Wilkinson west of the mountains who could be useful, with a note delineating their characters. By your messenger send me four or five commissions of your officers, which you can borrow under any pretence you please; they shall be returned faithfully. Already are orders given to the contractor to forward six months' provisions to points Wilkinson may name; this shall not be used until the last moment, and then under proper injunctions. Our object, my dear friend, is brought to a point so long desired. Burr guarantees the result with his life and honor, with the lives and honor and the fortunes of hundreds, the best blood of our country. Burr's plan of operation is to move down rapidly from the Falls, on the fifteenth of November, with the first five hundred or a thousand men, in light boats now constructing for that purpose; to be at Natchez between the fifth and fifteenth of December, there to m

TNO

-09, 352-55, o

END

William Wirt at the T

lement of his mind. If it had been, he never would have exchanged Ireland for America. So far is an army from furnishing the society natural and proper to Mr. Blennerhasset

that might have charmed Calypso and her nymphs, is his. An extensive library spreads its treasures before him. A philosophical apparatus offers to him all the secrets and mysteries of nature. Peace, tranquillity, and innocence shed their mingled delights around him. And to crown the enchantment

not wither at his approach. No monitory shuddering through the bosom of their unfortunate possessor warns him of the ruin that is coming upon him. A stranger presents himself. Introduced to their civilities by the high ran

uspects none in others. It wears no guard before its breast. Every door and portal and avenue of the heart

anging the native character of that heart and the objects of its affection. By degrees he infuses into it the poison of his own ambition. He breathes into it t

etort and crucible are thrown aside. His shrubbery blooms and breathes its fragrance upon the air in vain; he likes it not. His ear no longer drinks the rich melody of music; it longs for the trumpet's clangor a

tion at the names of great heroes and conquerors. His enchanted island is destined soon to relapse into a wilderness; and in a few months we find the beautiful and tender partner of his bosom, whom

this grand drama of guilt and treason, this man is to be called the principal offender, while he, by whom he was thus plunged in misery, is comparatively innocent, a mere accessory! Is this reason? Is it law? Is it humanity? Sir, neither the human heart nor the human understanding will bear a perversion so monstrous and absur

TNO

495-97 of t

r Trials,

END

structive Treason delivered at the Trial of

prisoner to make his defence.... This necessity is rendered the stronger by the constitutional provision that the offender "shall be tried in the state and district wherein th

repared to defend every act of his life which may be suddenly and without notice alleged against him. In common justice the particular fact with which he is charged oug

tive testimony after the overt acts are proved. That clause in the constitution too which says that in all criminal prosecutions the accused shall enjoy the right "to be informed

allege generally that the accused had levied war against the United States. The charge mu

be proved as laid.... Might it be otherwise, the charge of an overt act would be a mischief instead of an advantage to

ich assembled at Blennerhassett's island, and was, at the time, at a great distance, and in a different state,

e whether in this case the doctrine

trated. If a rebellion should be so extensive as to spread through every state in the union, it will scarcely be contended that every individual concerned in it is legally present at every ove

act, which was true in point of fact, should allege that he had assembled some small party, which in truth he had not seen, and had levied war by engaging in a skirmish in Georgia at a time when in reality he was fighting a battle in New-Hampshire-if such evidence would suppor

e subject; and which concur in declaring that such a person is a principal traitor, not because he was legally present, but because in t

a principal be not adopted, in consequence of which the conspirator could not be condemned under an indictment stating the truth of th

treasonable act, is not merely in consequence of that incitement

y overt act, then each case depends upon its own circumstances; and to judge how far the circumstances of any c

hassett's island; and the whole question to which the inquiry of the court

be convicted on the overt act laid in the indictment. With res

ng the particular fact charged. It is as evidence of the crime consisting of

he prosecution seem themselves not to have sufficiently adverted to this clear principle; that though the overt act may not be itself the treason, it is the sole act of that treason which can produce conviction. It

a position near enough to co?perate with those on the island, to assist them in any act of hostility, or to aid them if attacked, the question whether he was constructively present would be a question compounded of law and fact, which would be decided by the jury,

eral plan was to be afforded elsewhere, at a great distance, in a different state-if the overt acts of treason to be performed by him were to be distinct overt acts-then he w

e is not only no evidence that the accused was of the particular party which assembl

land, and to have been advised, procured, or commanded by the accuse

law is otherwise, because the th

to regain the crown they had forfeited, the struggle was for the whole kingdom; yet no man was ever considered as legal

ely in virtue of the common law principle, that what will make a man an accessory in felony makes him a principal in treason. So far from considering a man as constructively present at every overt

y carrying on war in Virginia at a great distance from him, then he is present at every overt act performed anywhere. He may be tried in any state on the continent, where any overt act has

terms maintained. Certainly it cannot be su

ally present at Blennerhassett's island; and the court is strongly inclined to the opinion that without pr

is controverted

tment does not charge the pr

the assemblage, he may be indicted as being present, and

the prisoner did assemble with the multitude and did march with them.... The charges of this special indictment theref

nt, charging an individual with personally assembling among others and thus levying war, may be sat

st in the assemblage; for he was not a member of it. The simple

e character of an assemblage must be the same whether a man be present or absent. In general, to charge any individual wi

t also constitute an essential part of the overt act? must it not also be p

other case the procurement by the individual make the guilt of the assemblage his guilt, then prese

; but is this a collateral point? Is the fact, without which the accused does not partici

must be positively proved by two witnesses. No presumptive evidence, no facts from w

act, then no presumptive evidence, no facts from which the procurement

idual was present by a train of conjectures, of inferences

sion that the accused procured the assembly, by a train of conjectures of inferences or of reasonin

ed by this opinion, the answer which will readily suggest itself is, that the difficulty of proving a fact will not justify conviction wi

e fact is not within the constitutional definition of the crime. To advise or procure a tre

ed of the nature and cause of the accusation" unless the indictment give him that notice which may reasonably sugges

vert the accessory before the fact into the principal, and to make the act of the principal his act. The accessory before the fact is not said to have levied war. He is

ature presupposes its creator. To decide then that this doctrine is applicable to the United States would seem to imply the decision that the United States, as a nation, have a common law which creates and defines t

stated; because, should it be true as is contended that the constitutional definition of treason comprehends him who advises or procures

ly levy war, then the advisement of procurement is an overt act of levying war. If it be the overt action which he is to be c

in England, be charged as having committed that treason by virtue of the common law operation, which is said so far as respects the indictment to unite the accessorial to the principal offen

victed for the procurement under an indictment charging him with actually assembling, wh

TNO

e supra,

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