CASES THAT MADE AMERICA FLETCHER V PECK AND THE COMMERCIALIZATION OF AMERICA’S SOCIAL CONTRACT

Abstract

This paper examines the emergence of U.S. contract law with his roots in English common law, as it differs from European concepts derived from Roman law that focus more on fairness in the transaction. It addresses the first case among contentious contract parties to wind its way to the U.S. Supreme Court. In Fletcher v Peck, the high court was forced to sort out a series of misbegotten transactions that ensued after land speculators bribed Georgia legislators to sell millions of acres – in what is now Alabama, Mississippi and Tennessee – to them for less than 2 cents an acre. When this criminal conspiracy was discovered, new legislators sought to rescind the transaction, while the speculators were rushing to sell as many parcels of the land as possible before that could happen.

In Chief Justice John Marshall’s opinion in the Fletcher case, the Court sustained the constitutional challenge to Georgia’s rescinding act, thus establishing a number of important precedents for the new country:

1. The Contracts Clause of the U.S. Constitution was read so broadly as to make the power of contract so absolute that no one, including a state government, could intervene to impair the obligations of contract.
2. At the same time, the sale and transfer of properties, normally the domain of contract as opposed to legislation, were treated the same as private agreements even when conducted by a government
3. In another twist, the nature of property interests transferred – though treated as a private agreement governed by contract law – was established as coming exclusively from the governments established in the English colonies by the Crown – to the exclusion of the Native American who were there before them.
4. The U.S. Supreme Court established its authority over states – to the extent that it could void their laws.
5. Perhaps most importantly, all this transpired without any tangible recognition of the underlying corruption in the Yazoo Land Fraud, in effect ratifying its criminality for the sake of commercial stability.

In the spirit of liberal arts education, it is important for students to understand the theories and causes behind the law they practice – from history. In that torch-passing process, the author finds it gratifying to be able to cite several of former professors from the University of Alabama, the University of Georgia School of Law, and Princeton University.