JULY 2018

JULY 2018
One Hundred Years Later, Same Message. 1916 - 2017


Sunday, November 25, 2012


I don't think anybody had any doubts that the court case of Fletcher v Peck was a “set-up”, a fixed game, a legal farce intended to provide a justification to pick the tax payers' pocket. If you are feeling sympathetic towards Chief Justice John Marshall, you can compare it to making sausages. It you are not feeling so generous, you might compare it to slaughtering the hog. But which ever analogy you are drawn to, the story has no happy ending for the pig.
The story goes (and it is fiction), that on May 14, 1803, 75 year old John Peck sold to 43 year old Robert Fletcher 15,000 acres of Yazoo land around the Tombigby River, in exchange for $3,000. Fletcher, according to the story, was concerned about receiving a clear title to his purchase, because in 1796 the state of Georgia had repudiated the original 1795 sale, passing “The Rescinding Act”. So, in order to reassure him, Peck had included in the deed of transfer, the following addendum; “The title to the premises as conveyed by the state of Georgia (in 1795)...has been in no way constitutionally or legally impaired by virtue of any subsequent act of any subsequent legislature of the...state of Georgia.”
The addendum was important because of the 1603 English case of Chandler v Lopus, which established the legal doctrine of Caveat Emptor, or buyer beware. Without a written contract stating the stone was magical, the buyer had no legal reason to believe it was magical, no matter what the seller might promise in his sales pitch. Well, now Peck had guaranteed in writing that the 1796 Rescinding Act did not apply, even though Georgia had returned the money and in 1802 had resold the Yazoo Swamp-Land to the Government of the United States for $1,400,000. Well, discovering that was not the case (so the story went), Fletcher sued Peck to get his money back.
Because Fletcher was a resident of New Hampshire and Peck resided in Massachusetts, the case moved directly into the federal court system – what a lucky break that was. Additionally it was heard at the circuit court level by the cranky, craggy 74 year old New Englander, William Cushing, who was also a Supreme – another lucky break. In fact, President Washington had nominated Cushing to be Chief Justice - not his first choice, but at least his second - and the Senate had approved. But Cushing had turned them both down, apparently because Washington had not asked before nominating him. Like I said - he was a cranky old man. Cushing was also a strict law and order judge, and it seems likely he had no doubt about the purpose of this set-up case. He did his part, deciding the case for Peck, which allowed Fletcher to appeal to the Supreme Court.
And it is now that the final character in our farce, John Marshal, steps on the stage. He was a cousin to Thomas Jefferson, and a close friend to George Washington. As a last minute appointment as Chief Justice, Marshall became the turd that outgoing President John Adams left behind on the high court for incoming President Thomas Jefferson. And the way the new Chief Justice chose to stink up Jefferson's presidency, showed that the Sage of Monticello had met his match. When another last minute Federalist appointee William Maybury complained that new President Jefferson's Secretary of State had not delivered his appointment as a new Justice of the Peace for the District of Columbia, Marshal had guided the Supremes into finding that, yes, legally the appointment should have been delivered, but then again the law establishing the new office violated Article III of the Constitution, so it did not count.
The decision left Jefferson fuming. On the one hand he was thrilled because a Federalist would not become a new JP for the district. But on the other hand, here were five Federalist judges daring to tell him how to interpret the constitution – and Jefferson never liked admiting that anybody was as smart as he was, let alone five Federalists. But by denying Maybury the post, Marshall had left Jefferson with no good reason to complain. The decision proved that Marshall was a far better politician than Jefferson, which made Jefferson even more unhappy.
When the case of Fletcher v Peck reached the high court in March of 1806, Marshall decided to drag the case out, probably to give him time to build an unanimous decision. He decided that the arguments made by Peck's team of lawyers had been “incorrect”, and so the case was “continued by consent”,  held over for the next term, to be re-argued in October of 1807. And even then, Marshall did not issue the final ruling until March 16, 1810. But at least when it was finally released, it was unanimous. And it had to be that, because for the first time ever, the Supreme Court was declaring a state's law violated an article of the Federal Constitution – in this case, section 10 of Article One.
As usual, Marshall wrote the court's opinion. He acknowledged that the actions of the 1795 Georgia legislature were reprehensible. However, he reasoned, “The grant, when issued, conveyed an estate...(and) This estate was transferable; and those who purchased parts of it were not stained by that guilt which infected the original transaction.” Thus was born the legal fiction of the “innocent third party” in the Yazoo land fraud. The innocent parties in this case, were the ones who had bribed the legislature. Marshall argued that if a concealed defect in a contract could be held against the victim of that concealment, then “All titles would be insecure”. That might be true in the abstract, but referring to the members of the New England Mississippi Company as “innocent” was almost as much a legal fiction as insisting that only written guarantees protected buyers in an age when only 3% of the population could read or write.
Oddly, the only member of the court to disagree with Marshall to any degree at all, was Jefferson's only appointee on the court to this point in time, William Johnson, from South Carolina. And his only objection was that he thought the Indians had a better claim to the land than did the state of Georgia. Still, he managed, at the end of his argument, to state the obvious. “I have been very unwilling to proceed to the decision of this cause at all,” he wrote, because, “It appears to me to bear strong evidence, upon the face of it, of being a mere feigned case.” But having stated that, Johnson then folded his tent and concurred with Marshall's decision. And so the court had decided in favor of the New England Mississippi Company and all the other speculators in the Yazoo land sales.
The cost of that decision became clear in 1814, when the Federal government reached a settlement with all the “innocent third parties” in the Yazoo land fraud. Having already paid Georgia in 1802 $4,300,000 for the land, (the modern equivalent of $63.5 million) they now paid the speculators in the various companies another $5 million for the same land (the modern equivalent of $50.5 million).
By comparison, it made Patrick Henry's scheme to cheat the tax payers of Georgia seem small potatoes. This would be far from the last time the Federal courts and the government colluded in assisting thieves in robbing the public. And such behavior, as you have seen,  started with the very birth of our Republic.
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