Volume IV Part 14 (2/2)
The treaty by which Spain ceded Florida to the United States a.s.sures to the people living in that Territory ”the enjoyment of the privileges, rights, and immunities” of American citizens; ”they do not however, partic.i.p.ate in political power; they do not share in the government till Florida shall become a state. In the meantime Florida continues to be a Territory of the United States, governed by virtue of that clause in the Const.i.tution which empowers Congress 'to make all needful rules & regulations respecting the territory or other property belonging to the United States.'”[359]
The Florida salvage act is not violative of the Const.i.tution. The courts upon which that law confers jurisdiction are not ”Const.i.tutional Courts; ... they are legislative Courts, created in virtue of the general right of sovereignty which exists in the government, or in virtue of that clause which enables Congress to make all needful rules and regulations respecting the territory belonging to the United States.... Although admiralty jurisdiction can be exercised, in the States, in those courts only” which are authorized by the Const.i.tution, the same limitation does not extend to the Territories. In legislating for them, Congress exercises the combined powers of the general and of a state government.[360]
Admirable and formative as were Marshall's opinions of the law of nations, they received no attention from the people, no opposition from the politicians, and were generally approved by the bar. At the very next term of the Supreme Court, after the decision in the case of the Nereid, an opinion was delivered by Story that aroused more contention and had greater effect on the American Nation than had all the decisions of the Supreme Court on international law up to that time.
This was the opinion in the famous case of Martin _vs._ Hunter's Lessee.
It was Story's first exposition of Const.i.tutional law and it closely resembles Marshall's best interpretations of the Const.i.tution. So conspicuous is this fact that the bench and bar generally have adopted the view that the Chief Justice was, in effect, the spiritual author of this commanding judicial utterance.[361] But Story had now been by Marshall's side on the Supreme Bench for four years and, in his ardent way, had become more strenuously Nationalist, at least in expression, than Marshall.[362]
That the Chief Justice himself did not deliver this opinion was due to the circ.u.mstance that his brother, James M. Marshall, was involved in the controversy; was, indeed, a real party in interest. This fact, together with the personal hatred of Marshall by the head of the Virginia Republican organization, had much to do with the stirring events that attended and followed this litigation.
At the time of the Fairfax-Hunter controversy, Virginia was governed by one of the most efficient party organizations ever developed under free inst.i.tutions. Its head was Spencer Roane, President of the Court of Appeals, the highest tribunal in the State, an able and learned man of strong prejudices and domineering character. Jefferson had intended to appoint Roane Chief Justice of the United States upon the expected retirement of Ellsworth.[363] But Ellsworth's timely resignation gave Adams the opportunity to appoint Marshall. Thus Roane's highest ambition was destroyed and his lifelong dislike of Marshall became a personal and a virulent animosity.
Roane was supported by his cousin, Thomas Ritchie, editor of the Richmond _Enquirer_, the most influential of Southern newspapers, and, indeed, one of the most powerful journals in the Nation. Another of the Virginia junto was John Taylor of Caroline County, a brilliant, unselfish, and sincere man. Back of this triumvirate was Thomas Jefferson with his immense popularity and his unrivaled political sagacity. These men were the commanding officers of a self-perpetuating governmental system based on the smallest political unit, the County Courts. These courts were made up of justices of the peace appointed by the Governor. Vacancies in the County Courts were filled only on the recommendation of the remaining members.[364] These justices of the peace also named the men to be sent to the State Legislature which appointed the Governor and also chose the members of the Court of Appeals who held office for life.[365] A perfect circle of political action was thus formed, the permanent and controlling center of which was the Court of Appeals.
These, then, were the judge, the court, and the party organization which now defied the Supreme Court of the United States. By one of those curious jumbles by which Fate confuses mortals, the excuse for this defiance of Nationalism by Localism arose from a land investment by Marshall and his brother. Thus the fact of the purchase of the larger part of the Fairfax estate[366] is woven into the Const.i.tutional development of the Nation.
Five years before the Marshall syndicate made this investment,[367] one David Hunter obtained from Virginia a grant of seven hundred and eighty-eight acres of that part of the Fairfax holdings known as ”waste and ungranted land.”[368] The grant was made under the various confiscatory acts of the Virginia Legislature pa.s.sed during the Revolution. These acts had not been carried into effect, however, and in 1783 the Treaty of Peace put an end to subsequent proceedings under them.
Denny Martin Fairfax, the devisee of Lord Fairfax, denied the validity of Hunter's grant from the State on the ground that Virginia did not execute her confiscatory statutes during the war, and that all lands and property to which those laws applied were protected by the Treaty of Peace. In 1791, two years after he obtained his grant and eight years after the ratification of the treaty, Hunter brought suit in the Superior Court at Winchester[369] against Fairfax's devisee for the recovery of the land. The action was under the ancient form of legal procedure still practiced, and bore the t.i.tle of ”Timothy Trit.i.tle, Lessee of David Hunter, _vs._ Denny Fairfax,” Devisee of Thomas, Lord Fairfax.[370] The facts were agreed to by the parties and, on April 24, 1794, the court decided against Hunter,[371] who appealed to the Court of Appeals at Richmond.[372] Two years later, in May, 1796, the case was argued before Judges Roane, Fleming, Lyons, and Carrington.[373]
Meanwhile the Jay Treaty had been ratified, thus confirming the guarantees of the Treaty of Peace to the holders of t.i.tles of lands which Virginia, in her confiscatory acts, had declared forfeited.
At the winter session, 1796-97, of the Virginia Legislature, Marshall, acting for his brother and brother-in-law, as well as for himself, agreed to execute deeds to relinquish their joint claims ”to the waste and unappropriated lands in the Northern Neck” upon condition that the State would confirm the Fairfax t.i.tle to lands specifically appropriated[374] by Lord Fairfax or by his devisee. But for the statement made many years later by Judges Roane and Fleming, of the Court of Appeals, that this adjustment covered the land claimed by Hunter, it would appear that Marshall did not intend to include it in the compromise,[375] even if, as seems improbable, it was a part of the Marshall syndicate's purchase; for the decision of the court at Winchester had been against Hunter, and after that decision and before the compromise, the Jay Treaty had settled the question of t.i.tle.
On October 18, 1806, the Marshall syndicate, having finally made the remaining payments for that part of the Fairfax estate purchased by it--fourteen thousand pounds in all--Philip Martin, the devisee of Denny M. Fairfax, executed his warranty to John and James M. Marshall and their brother-in-law, Rawleigh Colston; and this deed was duly recorded in Fauquier, Warren, Frederick, and Shenandoah Counties, where the Fairfax lands were situated.[376] Nearly ten years before this conveyance, James M. Marshall separately had purchased from Denny Martin Fairfax large quant.i.ties of land in Shenandoah and Hardy Counties where the Hunter grant probably was situated.[377]
It would seem that James M. Marshall continued in peaceful possession of the land, the t.i.tle to which the Winchester court had decreed to be in the Fairfax devisee and not in Hunter. When Denny M. Fairfax died, he devised his estate to his younger brother[378] Major-General Philip Martin. About the same time he made James M. Marshall his administrator, with the will annexed, apparently for the purpose of enabling him to collect old rents.[379] For thirteen years and six months the case of Hunter _vs._ Fairfax's Devisee slumbered in the drowsy archives of the Virginia Court of Appeals. In the autumn of 1809, however, Hunter demanded a hearing of it and, on October 25, of that year, it was reargued.[380] Hunter was represented by John Wickham, then the acknowledged leader of the Virginia bar, and by another lawyer named Williams.[381] Daniel Call appeared for the Fairfax devisee.
The following spring[382] the Court of Appeals decided in favor of Hunter, reversing the judgment of the lower court rendered more than sixteen years before. In his opinion Roane, revealing his animosity to Marshall, declared that the compromise of 1796 covered the case. ”I can never consent that the appellees,[383] after having got the benefit thereof, should refuse to submit thereto, or pay the equivalent; the consequence of which would be, that the Commonwealth would have to remunerate the appellant for the land recovered from him! Such a course cannot be justified on the principles of justice and good faith; and, I confess, I was not a little surprised that the objection should have been raised in the case before us.”[384]
To this judgment the Fairfax devisee[385] obtained from the Supreme Court of the United States[386] a writ of error to the Virginia court under Section 25 of the Ellsworth Judiciary Act, upon the ground that the case involved the construction of the Treaty of Peace with Great Britain and the Jay Treaty, the Virginia court having held against the right claimed by Fairfax's devisee under those treaties.[387]
The Supreme Court now consisted of two Federalists, Was.h.i.+ngton and Marshall, and five Republicans, Johnson, Livingston, Story, and Duval; and Todd, who was absent from illness at the decision of this cause.
Marshall declined to sit during the arguments, or to partic.i.p.ate in the deliberations and conclusions of his a.s.sociates. Indeed, throughout this litigation the Chief Justice may almost be said to have leaned backward.
It was with good reason that Henry S. Randall, the biographer and apologist of Jefferson, went out of his way to laud Marshall's ”stainless private character” and pay tribute to his ”austere public and private virtue.”[388]
Eight years before the Hunter-Fairfax controversy was first brought to the Supreme Court, the case of the Granville heirs against William R.
Davie, Nathaniel Allen, and Josiah Collins, was tried at the June term, 1805, of the United States Court at Raleigh, North Carolina. Marshall, as Circuit Judge, sat with Potter, District Judge. The question was precisely that involved in the Fairfax t.i.tle. The grant to Lord Granville[389] was the same as that to Lord Fairfax.[390] North Carolina had pa.s.sed the same confiscatory acts against alien holdings as Virginia.[391] Under these statutes, Davie, Allen, and Collins obtained grants to parts of the Granville estate[392] identical with that of Hunter to a part of the Fairfax estate in Virginia.
Here was an excellent opportunity for Marshall to decide the Fairfax controversy once and for all. Nowhere was his reputation at that time higher than in North Carolina, nowhere was he more admired and trusted.[393] That his opinion would have been accepted by the State authorities and acquiesced in by the people, there can be no doubt.[394]
But the Chief Justice flatly stated that he would take no part in the trial because of an ”opinion ... formed when he was very deeply interested (alluding to the cause of Lord Fairfax in Virginia). He could not consistently with his duty and the delicacy he felt, give an opinion in the cause.”[395]
The case of Fairfax's Devisee _vs._ Hunter's Lessee was argued for the former by Charles Lee of Richmond and Walter Jones of Was.h.i.+ngton, D.C.
Robert Goodloe Harper of Baltimore appeared for Hunter. On both sides the argument was mainly upon the effect on the Fairfax t.i.tle of the Virginia confiscatory laws; of the proceedings or failure to proceed under them; and the bearing upon the controversy of the two treaties with Great Britain. Harper, however, insisted that the court consider the statute of Virginia which set forth and confirmed the Marshall compromise.
On March 15, 1813, Story delivered the opinion of the majority of the court, consisting of himself and Justices Was.h.i.+ngton, Livingston, Todd, and Duval. Johnson, alone, dissented. Story held that, since Virginia had not taken the prescribed steps to acquire legal possession of the land before the Treaty of Peace, the State could not do so afterward.
”The patent of the original plaintiff [Hunter] ... issued improvidently and pa.s.sed no t.i.tle whatever.” To uphold Virginia's grant to Hunter ”would be selling suits and controversies through the whole country.”[396] It was not necessary, said Story, to consider the Treaty of Peace, since ”we are well satisfied that the treaty of 1794[397]
completely protects and confirms the t.i.tle of Denny Fairfax.”[398]
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