The Great Yazoo Lands Sale: The Case of Fletcher v. Peck by Charles F. Hobson
Fletcher v. Peck, one of the earliest and most significant decisions of the Marshall Court, is paradoxically both a "landmark of American constitutional law" (1) and historiographically neglected. Though widely cited by legal scholars, Fletcher is nonetheless generally excluded from the canon of Marshall decisions, such as Gibbons v. Ogden and Marbury v. Madison, routinely taught in law school courses. This omission partly reflects the reality that the doctrine spawned by the case—the interpretation and enforcement of the U.S. Constitution's contract clause—has fallen into desuetude as courts rely on other constitutional principles to achieve the same ends.
The Great Yazoo Lands Sale, Charles F. Hobson's careful and well-written study of Fletcher, remedies this neglect by capturing both the doctrinal and political significance of Chief Justice John Marshall's decision in its legal-historical context. As Hobson notes, he is not the first to recount the case's history; C. Peter Magrath, a political scientist, wrote a book-length study fifty years ago, and Hobson readily concedes that the two draw from the same source base of legal, administrative, and congressional records.1 Yet, notwithstanding his overly modest assertion that his divergence from Magrath is "scarcely noticeable" (209), Hobson offers an important difference in perspective. Having served as editor of both the Papers of John Marshall and the Law Papers of St. George Tucker, Hobson has spent years immersed in the legal world of the early Republic, and it shows: whereas Magrath readily ascribed legal doctrines solely to self-interest, Hobson offers nuanced reconstruction of the era's legal thought.
The irony of Hobson's thoughtful approach is that Fletcher arose from a bacchanal of "venality and betrayal of the public trust" (36). As the book's early chapters dutifully relate, the case's origins lay in the frenzied land speculation of the postrevolutionary era, when Anglo-Americans greedily sought to obtain title to vast western acreages. Alone among the new states, Georgia—thinly populated, impoverished, and surrounded by powerful Native nations—refused to cede to the federal government its extensive charter claim, which extended to the Mississippi River. Instead, in 1795, the state sold its uncertain title to this vast region to a handful of land companies for the absurdly low price of 1.4 cents per acre, an agreement greased by the liberal distribution of company stock to legislators. This Yazoo lands [End Page 165] sale, as Hobson neutrally calls it—many at the time labeled it the Yazoo fraud—produced a harsh reaction from Georgia's voters, who were rallied by Georgia politician James Jackson. The newly seated anti-Yazoo legislature quickly rescinded the sale in a statute that Hobson describes as "among the most extraordinary legislative acts in American history, virtually without precedent or successor" (50–51). The repeal of the sale aspired to consign the entire affair to oblivion, even going so far as to stipulate that the old law should be publicly burned (an illustration of which graces the book's cover).
Yet Georgia's repeal merely prompted the beginning of a lengthy legal saga. Early American land speculation was national in scope, and the Yazoo companies had already sold most of their shares to New Englanders, who were disinclined simply to forgo their speculations. Hobson exhaustively traces these claimants' efforts to obtain title or at least compensation by invalidating Georgia's repeal: first through state courts and then through repeated appeals to Congress, which in 1802 gained jurisdiction over the disputed land when Georgia finally ceded its western lands after receiving a handsome payment from the federal treasury. Heated confrontations ensued: "No political issue of the Early Republic," Hobson observes, "matched Yazoo in the intensity of the passions it aroused and in the vitriolic attacks employed by the antagonists" (92). Although the New Englanders' cause was initially championed by Federalists, the contest over Yazoo ultimately became an intraparty fight among Republicans that split along sectional lines, with the party's southerners, led by John Randolph, blocking multiple proposals for compensation.
Hobson's narrative really comes into its own once the New Englanders contrived to get the issue into federal court. The resulting diversity suit was "truly a lawyer's case, replete with the trappings of professional art" (88), and Hobson is most in his element explaining the underlying intricacies of the early nineteenth-century legal practice in this case. Along the way, he contextualizes the charge that Fletcher was a "feigned case"—that is, a fake controversy crafted to secure a court decision—by demonstrating that such legal fictions were rife at the time.2 He also deftly explains the contours and centrality of the era's vested rights doctrine, the principle that governments could not take away rights—particularly property—once granted.
These machinations ultimately yielded a Supreme Court decision written by Chief Justice Marshall invalidating Georgia's attempted rescission of the sale—the first time the court struck down a state law for violating the Constitution. Marshall's decision, Hobson notes, augured key aspects of the justice's jurisprudence. The opinion rested on the Constitution's contract clause, which barred state impairment of contracts, thereby shifting [End Page 166] the basis of the vested rights doctrine from natural law abstractions onto constitutional text. Marshall also "legaliz[ed]" (151) the Constitution by interpreting it using the same techniques applied to ordinary statutes.
For present-day scholars primed to view the Supreme Court as final arbiter, Fletcher's aftermath was anticlimactic. As was typical of the era's legal culture, the court's ruling resolved little, with opponents insisting that the decision did not bind them. Instead, the question of compensation returned again to Congress, where debate continued unabated. Ultimately, Congress did pass a compensation act, largely because, as Hobson notes, Republicans had come to see the question as a matter of demonstrating public faith to the purchasers.
In the long run, the case's doctrinal impact proved more significant than its resolution of the land sale. Fletcher inaugurated a line of important contract clause decisions, including Dartmouth College v. Woodward, that imposed significant limitations on states' power to alter previous agreements, broadly construed. Although later decisions made by the Marshall and Taney Courts are often interpreted as a retreat from this broad view of federal rights, Hobson persuasively argues that these cases reflected a "closer definition" (197) of the contract clause's meaning and scope. Hobson concludes by noting that by the late nineteenth century, many of the contract clause's purposes came to be served by the Fourteenth Amendment doctrine of substantive due process, even as the court's willingness to invalidate state laws persisted and even expanded.
Hobson's is the most thorough account of the legal intricacies and impact of Fletcher to date. But, in understandably focusing on high law and politics, Hobson recapitulates the framing of the case employed by Marshall and Congress—as a contest between state legislative sovereignty on the one hand and federal courts' solicitude for property rights on the other. Around the edges of both Marshall's decision and Hobson's narrative, there are hints of the broader questions and issues swept aside by Marshall's approach.
In particular, the Yazoo controversy looks very different when read in light of the recent borderlands literature focusing on the contests for property and sovereignty in a region that largely remained, in 1795, the Native Southeast.3 As Hobson notes in passing, the George Washington administration responded to the Yazoo sale by panicking because it feared that Georgia's actions would alienate the powerful Creek, Cherokee, and Chickasaw nations. And the reality of Native ownership of and sovereignty [End Page 167] over the disputed lands explains both the extreme bargain prices Georgia offered and the persistent failure of the Yazoo companies' attempts at actual settlement.
These issues of ownership and jurisdiction did not appear only in hindsight or outside the courtroom. As Hobson briefly notes, the "principal issue" (138) in most discussions of Yazoo prior to Marshall's decision, up to and including the attorneys' arguments before the Supreme Court, was the question of title—which sovereign authority actually owned the lands that Georgia had claimed and then sold? The competing rights of Native nations, the federal government, and the states presented a significant legal challenge precisely because boundaries and sovereignty in the Yazoo region were hotly contested, as the recent borderlands literature has underscored. Yet Marshall's opinion swept all this uncertainty aside, dismissing the question of Native title in two brief sentences. Through this alchemy, Marshall imbued Georgia's airy and highly questionable assertion of ownership with all the solidity and sanctity of "vested rights" (1).
Read outside Marshall's procrustean interpretation of the dispute, Fletcher fits with a different line of cases from the later contract clause disputes that Hobson traces. It was of a piece, for one, with the dozens of instances in which the Marshall Court had to resolve ownership fights arising from the chaotic speculation of the 1790s. But it also foreshadowed the so-called Marshall trilogy that in the 1820s and 1830s defined the rights of Native peoples under U.S. law. Fletcher has often been discussed as a precursor to Johnson v. M'Intosh, Marshall's pronouncement on Native property rights.4 But Fletcher's shadow extended still further, as the decision prefigured the intense legal contests prompted by southern states' efforts to remove Native nations from within their borders. Many of the players in that later struggle appear here—Joseph Story, George Troup, John Quincy Adams—but in ironic roles: the New Englanders, later the staunch defenders of Native sovereignty, attacked Native title to protect their ownership rights, while Georgians who would later howl for Cherokee expulsion found themselves on the same side as defenders of Native autonomy. Marshall himself later retreated from his out-of-hand rejection of Native rights, but not before Fletcher became a favorite talking point of Removal advocates— and a favorite citation, too, of current Supreme Court justices seeking to cabin Native sovereignty. The case thus looks markedly different when shifted out of familiar narratives of doctrinal development into the frame of borderlands struggles over ownership and sovereignty. [End Page 168]
Highlighting this political and diplomatic context does not diminish Hobson's accomplishment in so meticulously re-creating the legal thought and circumstances that produced Marshall's Fletcher decision. But it is a reminder of how law can distort, forcing cases into narrow doctrinal frameworks that obscure broader issues. As we peer with Hobson over Marshall's shoulder as the jurist crafted this key decision, we realize how much the justice chose to ignore. [End Page 169]
1. C. Peter Magrath, Yazoo: Law and Politics in the New Republic: The Case of Fletcher v. Peck (Providence, R.I., 1966).
2. Here, Hobson follows Lindsay G. Robertson, "'A Mere Feigned Case': Rethinking the Fletcher v. Peck Conspiracy and Early Republican Legal Culture," Utah Law Review 2000 no. 2 (2000): 249–65.
3. For a small sampling of these works, see Claudio Saunt, A New Order of Things: Property, Power, and the Transformation of the Creek Indians, 1733–1816 (New York, 1999); Robbie Ethridge, Creek Country: The Creek Indians and Their World (Chapel Hill, N.C., 2003); Lisa Ford, Settler Sovereignty: Jurisdiction and Indigenous People in America and Australia, 1788–1836 (Cambridge, Mass., 2010); Angela Pulley Hudson, Creek Paths and Federal Roads: Indians, Settlers, and Slaves and the Making of the American South (Chapel Hill, N.C., 2010); Kathleen DuVal, Independence Lost: Lives on the Edge of the American Revolution (New York, 2015).
4. Stuart Banner, How the Indians Lost Their Land: Law and Power on the Frontier (Cambridge, Mass, 2005); Lindsay G. Robertson, Conquest by Law: How the Discovery of America Dispossessed Indigenous Peoples of Their Lands (New York, 2005); Blake A. Watson, Buying America from the Indians: Johnson v. McIntosh and the History of Native Land Rights (Norman, Okla., 2012).