GEORGIA PEACHES - Chapter Eight

I think Patrick Henry's (above) death may have been a release. At the urging of George Washington, in the spring of 1799, Patrick stood for one last election - for the Virginia House of Delegates. He ran as a Federalist. Patrick won his last election, but never occupied his seat. He died of stomach cancer on 6 June, 1799. His second wife, Dorothea, quickly married Patrick's friend, Judge Edmund Wilson, thus protecting the family investments from predators who might have cheated a naive widow, probably a predator like  Judge Edmund Wilson.

Once the details of the Yazoo Land sale became public, Senator James Gunn (above) was universally despised. Six years later, toward the end of his term he announced he was “disgusted with everything connected with public life.”  It was certainly disgusted with him.  In March of 1801 he returned to the old state capital of Louisville, Georgia and at the end of July, in a room full of people, James Gunn died so quietly no one noticed he was dead for several minutes. That would have galled him. One obituary called him “General Yazoo”, a reminder of those runaway slaves he had murdered so many years before, and the millions of dollars he had tried to steal from the  tax payers.  A kinder obituary hoped he was “beyond the reach of friendship, or of hatred.”  Not me.

James Jackson was twice elected Governor of Georgia. In his first two year term he personally wrote sections 23 and 24 of the new Georgia constitution, which insured that " “no...order shall pass the General Assembly, granting a donation or gratuity in favor of any person whatever...” except by a two-thirds vote.  During his second term, in 1802  he finally disposed of the temptation of the Yazoo Lands by selling them to the Federal Government for $1,250,000. Georgia was no longer broke. For awhile.

And when the “Prince of Duels” died on 19 March, 1806, no one was more surprised and disappointed than James Jackson, that he met his demise quietly in his own bed.

Most of the speculators who tried to profit from the selling the Yazoo swamp  -  Patrick Henry, David Ross, Robert Morris, John Nicholson, James Wilson and James Gunn - lost everything. Taking a profit would be up to the next generation of “land jobbers”, starting with John Peck, and his partner in “ legal crime”, Robert Fletcher.

The story goes - and it was a fictional story - that on 14 May, 1803, 75 year old John Peck sold to 43 year old Robert Fletcher (above) 15,000 acres of Yazoo swamp around the Tombigby River, in exchange for $3,000, or about 4 and 1/3 cents an acre.  Fletcher was supposedly concerned about receiving a clear title because of the "The Rescinding Act”,  so Peck had included the following addendum, insisting that,  “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 that 1603 English case of Chandler v Lopus, which you remember (I'm sure)  established the legal doctrine of Caveat Emptor - buyer beware.  Peck had now provided the guarantee in writing that the 1796 Rescinding Act did not apply, even though Georgia had just sold the Yazoo Swamp-Land to the Federal Government. And in doing so, he had provided legal grounds for Fletcher to sue Peck to get his money back. But then that was not really the point of the entire transaction.

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. There  it was heard at the circuit court level by the cranky, craggy 74 year old Federalist New Englander, William Cushing (above) , who was also a Supreme – another lucky break. Cushing  decided 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 (above), steps upon the stage. He was a cousin to Thomas Jefferson, and a close friend to George Washington. When the case of Fletcher v Peck reached the high court in March of 1806, Chief Justice Marshall decided that the arguments made by Peck's team of lawyers had been “incorrect”, and so the case was “continued by consent”,  meaning held over for the next term, to be re-argued (or better argued) in October of 1807.  

And even then, Marshall did not issue the final ruling until 16 March, 1810, 3 years later, probably because it took him that long to cajole an unanimous decision. The decision had to be unanimous because for the first time ever, the Supreme Court was declaring that a state law - the Rescinding Act -  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 members of the 1795 Georgia legislature were guilty of reprehensible actions. 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, meaning the speculators who had bought the land from the men who had bribed the legislature were not the same man who had committed the sin, working under the mask of a corporation.

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 written guarantees protected buyers in an age when only 3% of the population could read.

Oddly, the only member of the court to disagree with Marshall in writing was Jefferson's only appointee on the court,  William Johnson (above), 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, Johnson 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... of being a mere feigned case.” 

But having stated the obvious, 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 $4 million in 1802  for the swamp land -  the modern equivalent of $63 million -  they now paid the speculators in the various Yazoo companies another $5 million for the same swamp - the modern equivalent of $50 million - over 113 million dollars for a swamp which grew little more than mosquitos, turtles and alligators.

It made Patrick Henry's scheme to cheat the tax payers of Georgia seem small potatoes. And this would be far from the last time the lawyers wrote and interpreted laws to assist thieves in robbing the public. Such behavior is a stab to the heart of the public's faith in their government. And it all began at the very birth of that Republic.

It was the next generation of Americans who would risk their fortunes to build levees, to drain the Yazoo swamp and keep the Yazoo river to a path, and who would finally lay bare some of the richest agricultural soil in the world, upon which they would plant and grow cotton. There were profits aplenty for all...except, of course, for the natives who had originally owned the land and the slaves who picked the cotton. It is a sad truth about speculators that like villains in a horror story they generate life for no one but themselves, and misery and debt for everyone and everything else they touch.  And capitalism empowers them.

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