A Review of

Charles F. Hobson, The Great Yazoo Land Sale: The Case of Fletcher v. Peck.  Lawrence, Kansas:  University Press of Kansas, 2016.

[NOTE:  I’ve been studying the history of Georgia for more than half a century, trying to understand the peculiar evolution of the state’s political parties from the American Revolution through the decades leading up to the Civil War.  The Yazoo Land Fraud (1795-1796), it turns out, was a central development in this process.

The original Yazoo purchasers, who had greased the skids for the sale of Georgia’s western territory with offers of shares in the purchase to members of the state legislature, moved quickly to dispose of their holdings.  Meanwhile, they also distributed sub-shares in the purchase to important upcountry politicos—militia leaders, editors, justices of the peace—in an effort to frustrate anti-Yazoo legislators and other political leaders trying to block the sale.

This campaign, as sleazy as it was, kept the sale’s foes at bay until the original purchasers disposed of their lands to out-of-state speculators, many of whom resided in New England.  (In author Charles F. Hobson’s view, the quick turnover of the lands from the original purchasers to the supposedly “innocent” purchasers in New England belied the high-toned rhetoric of the Yazoo companies and revealed the “land-jobbing” nature of the transactions. [56])

After tracing Yazoo through the so-called “Compromise of 1802” in my initial foray into Georgia’s political history, I was content to let it go.  Some years later, though, I decided to write a sequel, tracing political party development in Georgia after 1806.  For much of that latter period, I discovered, the Yazoo claims issue was far from settled. As I traced the ramifications of Yazoo through Georgia, congressional, and national history over four more decades, I probably did less than I might have on the fraud’s encounter with the American Constitution.  But I needn’t have worried: Professor Hobson had that topic covered.

Disclosure:  Charles Hobson was a couple of years ahead of me at My Old Graduate School (MOGS), and we had the same dissertation director.  I have followed Hobson’s later career with interest—he was the only one of my grad school colleagues who, after earning his doctorate, chose to pursue a career in documentary editing.  Among his editorial stops  were the Papers of James Madison; the Papers of John Marshall, for which he served as editor; and St. George Tucker’s Law Reports and Selected Papers.  Hobson also published a well-received one-volume biography of Marshall in 1996.]

(amazon.com)

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The post-1802 phase of the Yazoo business was incredibly complex.  Congress passed a law in 1803 reserving five million acres of land in Mississippi Territory to compensate the Yazoo purchasers, but this proved premature, because Congress had not indicated which Yazoo purchasers would be eligible.  Hobson notes the irony that, if Congress had been able to compensate the Yazoo purchasers quickly, the events that led to Fletcher need not have happened, but determined opposition, led by John Randolph of Virginia and George Troup of Georgia, coalesced to block the process.

Consequently, angry congressional debates over Yazoo became a constant feature for the next dozen years.  Disappointed New England speculators tried to convince the national government to compensate them for their losses, but determined Georgia congressmen and their (mostly) southern allies fought a determined rear-guard action that frustrated pro-Yazoo lobbyists and their (mostly) northern backers.

Meanwhile, the forces of speculation also took aim at the Supreme Court, seeking financial satisfaction through the courts that was being denied them both by the Georgia legislature and by Congress.  It was at this point that Chief Justice John Marshall became a key figure.  And the picture Professor Hobson paints of Marshall and his judicial colleagues is  masterful.

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Chief Justice John Marshall (wikipedia)

The resulting case, Fletcher v. Peck (1810), was significant for two reasons:  It was the first time the Supreme Court declared a state law unconstitutional; and Hobson argues that, regardless of the famous decision in Marbury v. Madison (1803), declaring a portion of a federal law unconstitutional, “the practice of what came to be known as ‘judicial review’ had its true beginnings with the exposition of the contract clause in Fletcher.” (1)  Moreover, in Fletcher the Court applied for the first time the clause in the Constitution prohibiting states from impairing the “Obligation of Contracts.” (1)

The case, wherein Robert Fletcher sued John Peck in 1803 for failing to honor a contract for the purchase of Yazoo lands, became part of a determined effort by the so-called “innocent” New England speculators to use the judicial system to secure compensation they had been unable to obtain from Georgia and Congress. To the modern, cynical reader, Fletcher v. Peck might seem to be merely a “feigned case,” a collusive effort to deceive the Supreme Court, but Hobson demurs.  He argues instead that “the lawyers who contrived the suit between Fletcher and Peck in 1803 could reasonably believe that such a case fell within the acceptable boundaries of legal practice and that in pursuing this means of vindicating their clients’ rights they were doing their professional duty.” (86)

This “victory” for the speculators in 1810 proved hollow:  Marshall’s Court, though ruling that Georgia’s action in annulling the Yazoo sale had been unconstitutional, regardless of the corruption involved (because the state legislature had had the right to sell the lands), could not order Georgia to pay the speculators (because the Rescinding Act had annulled the sale in 1796,  fourteen years earlier); thus, any financial satisfaction would have to come from Congress, which opened yet another avenue for lobbyists and their supposedly “innocent” clients to continue to press for payment.  And the anti-Yazoo forces were determined not to give way, court decision or no court decision.

The result: four more years of angry, vociferous congressional debates, which gradually wore down the anti-Yazoo forces.  This also was the period when Congress grappled with the War of 1812, and when younger, more pragmatic, Republican congressmen were elected.  Rather than continue clinging to Jefferson, Madison, Randolph, and Troup’s doctrine of “state rights,” these less ideological Republican “War Hawks” preferred to look to the future, but they could not well do that while the Yazoo business occupied Congress.

Finally, in 1814, the national legislature produced a Mississippi compensation bill aimed at banishing “Yazoo” from its halls once and for all.  This measure set aside $5,000,000 from the proceeds of land sales in Mississippi Territory, to be shared by those “innocent” New England purchasers. (Mississippi, along with Alabama, had been carved out of the Yazoo lands.)

The compensation process was far from smooth, and Professor Hobson clearly charts its rocky course.  The umbrella group for Yazoo claimants in the Northeast, the New England Mississippi Land Company, remained unhappy with its share of the Yazoo booty, and, between 1822 and 1854, submitted to Congress at least seventeen petitions seeking further compensation.  All these petitions failed, and, in desperation, the company turned to the U.S. Court of Claims, which finally denied their demands in 1864!

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Charles F. Hobson’s The Great Yazoo Land Sale:  The Case of Fletcher v. Peck, is, considering the complexity of the topic, a surprisingly concise monograph.  For example, in less than fifty pages, the first two chapters place the Yazoo sale and the Rescinding Act (1795-1796), in the context of Georgia’s history as a land speculator’s paradise, beginning in the colonial period. Chapter three lucidly explains how a group of New England speculators became Yazoo claimants, and the following three chapters trace the tortuous judicial route of Fletcher’s suit against Peck, culminating in Marshall’s 1810 ruling, and the indemnification process. The final chapter, of interest mainly to legal historians, considers what happened to the Constitution’s contract clause after Fletcher v. Peck, as far as the Supreme Court was concerned.

Hobson also includes a detailed chronology outlining post-Revolutionary land speculation in Georgia from 1785 through the Yazoo sale and the Rescinding Act (1795-1796), and tracing the sale’s ramifications to the final rejection, in 1864, of the speculators’ demands by the U.S. Court of Claims. The work includes a thirteen-page bibliographical essay and a serviceable index.

Hobson’s volume provides only a single map, but it’s a dandy, showing the Yazoo land grants of 1795.  Given the stellar legal talent enlisted on both sides of the case, a few pictures of the luminaries involved in the case, like Marshall himself, John Quincy Adams, Joseph Story, Luther Martin, and Robert Goodloe Harper, might have been helpful, but–hey!–there’s always “Google Images.”

Overall, then, Hobson’s treatment of the case of Fletcher v. Peck is first-rate.  Not only will those interested in the case itself, and in Chief Justice Marshall’s role in shaping the Supreme Court of the United States, find it compelling; but it also should appeal to readers interested in Georgia history after the American Revolution, and to teachers looking for a different approach to the story of party development following the War of 1812.

Charles F. Hobson

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For those interested in reading more of my reflections on history, here are links to my books on the subject:

Rancorous Enmities and Blind Partialities:  Parties and Factions in Georgia, 1807-1845 (University Press of America, 2015)

In Pursuit of Dead Georgians:  One Historian’s Excursions into the History of His Adopted State (iUniverse, 2015)

Politics on the Periphery:  Factions and Parties in Georgia, 1783-1806 (University of Delaware Press, 1986)