sentence of the District Court was pronounced, and since the suit was neither commenced nor prosecuted against that state, there remains no pretext for the allegation that the case is within that amendment of the constitution which has been cited; and, consequently, the state of Pennsylvania can possess no constitutional right to resist the legal process which may be directed in this cause.

It will be readily conceived that the order which this court is enjoined to make by the high obligations of duty and of law, is not made without extreme regret at the necessity which has induced the application. But it is a solemn duty, and therefore must be performed. A peremptory mandamus must be awarded.

Fletcher v. Peck.

NOTE.

THIS is one of Marshall's greatest cases,-first, because it dealt with a political issue that had been a subject of dispute for years; second, because it was the earliest case in which he construed one of those provisions of the Constitution which directly restrict the power of the states under the union. This was the first case in which he decided that the decision of the United States courts could nullify the act of a state legislature. "No heavier or better directed blow was ever struck against States rights when those rights were invoked in order to thwart or cripple the National power."'

Fletcher v. Peck decided that a state had no power to revoke a grant of land made by it; the decision rested mainly on the ground that such a revocation was an impairment of a contract and so contrary to the Constitution of the United States. That is the exact decision, and for that point the case is constantly cited and undoubted law. The circumstances under which the case arose and the entire failure of the judgment to settle the controversy which it considered seem almost universally forgotten.

The case was an action on certain covenants on a deed made by one Peck to one Fletcher conveying certain lands which, in 1795, had been sold to James Gunn and others, in accordance

'Hon. Henry Cabot Lodge. Address before the Associated Committees of Illinois, on John Marshall Day, 1901. Reprinted in Dillon's John Marshall, vol. ii., pp. 303, 327. The place of Fletcher v. Peck in Marshall's scheme of constitutional law, its relation to the Dartmouth College case, and its influence on the law are dealt with in the introduction to these volumes.

with the authority of a special act of the legislature of Georgia. The grantor in this deed had covenanted in substance that the sale by the state of Georgia was legal and gave good title. The grounds of the action were, first, that the state had no title; second, that the act of the legislature authorizing it was obtained by fraud and corruption and thus was void; third, that the grant by the state was rescinded by a later act. The real question of the case was in regard to the validity of that act and the power of Georgia to pass it. A secondary objection to the title granted by the state was that it was subject to certain rights of Occupancy by the Indians. The case arose on writ of error to the Circuit Court for the district of Massachusetts.

But there were certain other facts, not on the record, which were, humanly speaking, before Marshall and the Supreme Court. The lands in question, which had been granted to James Gunn, were some 15,000 acres, which in 1810 lay in the then territory of Mississippi. They were bounded on the west by the Mississippi, on the east by the Tombigbee. From the close of the revolution for independence until 1800, one of the most bitterly contested political questions, as Marshall said in his opinion, "a momentous question which, at one time, threatened to shake the American confederacy to its foundation," was whether the lands west of the Alleghanies were the property of the separate states or of the United States. The jealousy of the smaller states and the real patriotism of some of the states, like New York, led finally to the gradual cession of these lands to the federal government. One of the earliest phases of this controversy was Georgia's claim to the lands lying between it and the Mississippi which had been obtained from Spain. This region was sparsely settled and had no definite form of government. In 1788, Georgia ceded its claims in this region to the United States, but with such conditions that the grant was refused. In 1789, a great part of the land was sold to certain land companies, but the bargain was never carried out. In 1795, four new companies, commonly known as the Yazoo Companies, secured from the legislature of Georgia a grant of about thirty-five million acres for five hundred thousand dollars. The iniquity of the

transaction was amazing. It was a matter of public record that every man, save one, who had voted for the measure obtained rights in the granted land. “No sooner did the true character of the sale become known," says McMaster,' "than the State of Georgia, from the mountains to the sea, was aflame. The Grand Juries of every county but two presented the act as a public grievance. The Convention which assembled in May had its table heaped up with petitions, memorials, remonstrances. Hardly a freeman in the State but put his name to some such document. Every member of the Legislature of 1796 came solemnly pledged to the repeal of the act. Accordingly, on the thirteenth of February, 1796, the Legislature pronounced the sale unconstitutional, null, and void." And the title of land included in these acts in 1810 came before the Supreme Court in Fletcher v. Peck, and it was the righteous repealing act that the court declared unconstitutional. Surely no case ever demanded a decision more contrary to the lay ideas of justice. In 1790, certain of the western lands of Georgia were included by Congress in the territory of Mississippi, and later commissioners were appointed to settle the conflicting claims of the state of Georgia. In 1802, the claims of Georgia to govern the disputed territory were finally yielded. The commissioners appointed went on to deal with the title to the lands. They compromised with the original holders under British title, and with some of the Yazoo titles under the Georgia grant of 1795. The Georgia grants of 1789 were ignored. It was a provision of the compromise with Georgia in 1802 that the Georgia titles should be recognized. In 1803, an act was passed by Congress adopting the settlement provisions of the commissioners as to title to land in the disputed territory. As a matter of fact, that settlement did not recognize the claims of the Yazoo Companies as a whole at all. In every Congress up to 1809 the canny and farseeing New Englanders who had formed the greater part of the members of the Yazoo Companies attempted to get relief from Congress. In 1809 and 1810, Fletcher v. Peck was brought before the Supreme Court. On the face of it the case bears every evidence of

History of the United States, (Appleton, 1897), vol. ii., p. 480.

being a friendly controversy, prepared for the sake of getting Marshall's judgment in favor of the Yazoo claimants. Justice Johnson, in his opinion on the case, which dissented sharply from some points made by Marshall, said: "I have been very unwilling to proceed to the decision of this cause at all. It appears to me to bear strong evidence, upon the face of it, of being a mere feigned case. It is our duty to decide on the rights, but not on the speculations of parties. My confidence, however, in the respectable gentlemen who have been engaged for the parties, has induced me to abandon my scruples, in the belief that they would never consent to impose a mere feigned case upon this court."

Such was the case that the Supreme Court attempted to settle. Marshall decided that the court had no power to inquire into the alleged fraud in the Georgia legislature which passed the act of 1795. Obviously correct and inevitable as this decision was, it was unpalatable to the public taste, and it is quite clear that any tribunal which tried to settle the Yazoo claims without jurisdiction to inquire into the frauds which were the basis of them labored at a great disadvantage. Then Marshall decided that the repealing act, which, on broad moral grounds, was highly admirable, was unconstitutional. A less great judge, a judge who felt less keenly the necessity for upholding the Constitution for fair weather and foul, might have temporized in such a situation. For there was, it seems, a way out. The Constitution forbade the impairment of "contracts" by the states. The conveyances under the act of 1795 were grants, executed contracts perhaps, but not necessarily contracts. Justice Johnson, in his acute opinion dissenting on this point, said: "Whether the words 'acts impairing the obligation of contracts' can be construed as having the same force as must have been given to the words 'obligation and effect of contracts' is the difficulty in my mind "; and again, "To give it (this clause of the Constitution) the general effect of a restriction on the state powers in favor of private rights, is certainly going very far beyond the obvious and necessary import of the words, and would operate to restrict the states in the exercise of that right which every community must exercise