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

by Albert J. Beveridge

To secure a judicial expression, the Boston claimants arranged a "friendly" suit in the United States Court for the District of Massachusetts. One John Peck of Boston had been a heavy dealer in Georgia 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 dollars. Immediately Fletcher brought suit against Peck for the recovery of this purchase money; but the case was "continued by consent" for term after term from June, 1803, until October, 1806.[1475]

The pleadings[1476] set forth every possible phase of the entire subject which could be considered judicially. Issues were joined on all points except that of the title of Georgia to the lands sold.[1477] On this 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 the question to the court; and, in case the judge should decide that Georgia's claim to the lands sold was not valid, found for the plaintiff and assessed his damages at the amount alleged to have been paid to Peck.

Thereafter the case was again "continued by consent" until October, 1807, when Associate Justice William Cushing of the Supreme Court, sitting as Circuit Judge, decided in Peck's favor every question raised by the pleadings 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 1-4, 1809, by Luther Martin for Fletcher and by Robert Goodloe Harper and John Quincy Adams for Peck. There was no decision on the merits because of a defect of pleadings which Marshall permitted counsel to remedy.[1478]

During this argument the court adjourned for two hours to attend the inauguration of James Madison. For the third time Marshall administered the Presidential 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 manifestly made up for the purpose of getting the Court's judgment upon all the points." The Chief Justice himself had mentioned the same thing to Cranch.

Adams here chronicles an incident of some importance. After delivering the court's opinion on the pleadings, Marshall "added verbally, that, circumstanced as the Court are, only five judges 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 forbore giving it, as from the complexion of the pleadings they could not but see that at the time when the covenants were made the parties had notice of the acts covenanted against."[1480]

The cause was argued again a year later. This time Joseph Story, so soon thereafter appointed an Associate Justice, took the place of John Quincy Adams. Martin's address was technical and, from the record, appears to have been perfunctory.[1481] On behalf of Peck, two thirds of the argument for the soundness of his title was devoted to the demonstration 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 of contracts. To overthrow a law because it was corruptly enacted "would open a source of litigation which could never be closed." However, "the parties now before the court are innocent of the fraud, if any has been practiced. They were bona fide purchasers, for a valuable consideration, without notice of fraud. They cannot be affected by it."[1482]

On March 16, 1810, Marshall delivered the opinion of the majority of the Supreme Court. In this he laid the second stone in the structure of American Constitutional 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 that courts cannot examine the motives that induce legislators to pass a law. In arriving at these profoundly important conclusions his reasoning was as follows:

Did the Georgia sale act of 1795 violate the Constitution of that State? An act of a legislature was not to be set aside "lightly" on "vague conjecture" or "slight implication." There was no ground for asserting that the Georgia Legislature transcended 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 of its framers," particularly when the act challenged authorized a contract that was executed according to the terms of it. Even if such legislation could be set aside on the ground of fraud in the enactment of it, to what extent must the impurity go?

"Must it be direct corruption, or would interest or undue influence of any kind be sufficient? Must the vitiating cause operate on a majority, or on what number of the members? Would the act be null, whatever might be the wish of the nation, or would its obligation or nullity depend upon the public sentiment?"

The State of Georgia did not bring this action; nor, "by this count" of the complaint, did it appear that the State was dissatisfied. On the face of the pleadings a purchaser of Georgia land declares that the seller had no title because "some of the members of the legislature were induced to vote in favor of the law, which constituted the contract [with the original grantees], by being promised an interest in it, and that therefore the act is a mere nullity." A tribunal "sitting 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.... The legislature of Georgia was a party to this transaction; and for a party to pronounce its own deed invalid" was an assertion "not often heard in courts of justice." It was true, as urged, that "the real party ... are the people"; but they can act only through agents whose "acts must be considered as the acts of the people." Should these agents prove unfaithful, the people can choose others to undo the nefarious work, "if their contracts be examinable" by legislation.[1485]