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

of possessing itself of the property of the individual, when necessary for public uses." But the broader construction given by Marshall has never since been questioned, and is now clear and unshakable law. It is typical of the mind of Marshall and of his attitude toward the Constitution that his construction tended toward a stricter political morality, and likewise toward the tightening of the restrictions on the powers of the separate

states.

But though these words of Marshall have established the law, they by no means settled the Yazoo difficulties. It is to be noted that Marshall's opinion carefully refrained from any comment on the validity of the settlement act passed by Congress, or in regard to the political question as to the sovereignty over the disputed territory. The case simply decided the abstract rights of the parties, but the Supreme Court possessed no machinery to settle so complicated a quarrel, and four years later Congress voted eight million dollars in land scrip to quiet the disgruntled claimants.'

Not a hint of that helplessness, that inability to settle the whole controversy appears in the opinion; truly Marshall's court sat to pronounce principles to guide posterity.

One minor point in the case deserves notice, because it shows clearly how deeply Marshall felt the necessity of restraint on arbitrary legislative power, a feeling perhaps engendered by the arbitrary action of the British Parliament before the revolution. In the course of the opinion he said:

"It may well be doubted whether the nature of society and of government does not prescribe some limits to the legislative power, and if any be prescribed, where are they to be found, if the property of an individual, fairly and honestly acquired, may be seized without compensation?"

And Justice Johnson said: "I do not hesitate to declare that a state does not possess the power of revoking its own grants. But I do it on a general principle, on the reason and nature of things; a principle which will impose laws even on the Deity."

'Thirteenth Congress. Second Session, chap. xxxix., Act of March 31,

1814.

Such a view, that some such basic principles of society exist which are within the province of the courts to expound and apply, has often found expression in later opinions that hark back to these phrases, but they are not the law, and, it would seem, wisely, and in no case did Marshall base a decision on such a ground.

Fletcher

V.

Peck.

[6 Cranch, 87.]

1810.

The case was twice argued, first by Luther Martin for the plaintiff in error, and by F. Q. Adams and R. G. Harper for the defendant, and again by Martin for the plaintiff and by Harper and Foseph Story for the defendant.

March 16, 1810. Marshall, Ch. J., delivered the opinion of the court as follows:

The pleadings being now amended, this cause comes on again to be heard on sundry demurrers, and on a special verdict.

The suit was instituted on several covenants contained in a deed made by John Peck, the defendant in error, conveying to Robert Fletcher, the plaintiff in error, certain lands which were part of a large purchase made by James Gunn and others, in the year 1795, from the state of Georgia, the contract for which was made in the form of a bill passed by the legislature of that state.