Volume IV Part 17 (1/2)

[364] For fuller description of the Virginia County Court system, see chap. IX of this volume.

[365] On the Virginia Republican machine, Roane, Ritchie, etc., see Dodd in _Am. Hist. Rev._ XII, 776-77; and in _Branch Hist. Papers_, June, 1903, 222; Smith in _ib._ June, 1905, 15; Thrift in _ib._ June, 1908, 183; also Dodd: _Statesmen of the Old South_, 70 _et seq._; Anderson, 205; Turner: _Rise of the New West_, 60; Ambler: _Ritchie_, 27, 82.

[366] Several thousand acres of the Fairfax estate were not included in this joint purchase. (See _infra_, 150.)

[367] 1793-94. See vol. II, 202-11, of this work.

[368] April 30, 1789. See Hunter _vs._ Fairfax's Devisee, 1 Munford, 223.

[369] For the district composed of Frederick, Berkeley, Hamps.h.i.+re, Hardy, and Shenandoah Counties.

[370] Order Book, Superior Court, No. 2, 43, Office of Clerk of Circuit Court, Frederick Co., Winchester, Va.

[371] The judges rendering this decision were St. George Tucker and William Nelson, Jr. (_Ib._)

[372] In making out the record for appeal the fict.i.tious name of Timothy Trit.i.tle was, of course, omitted, so that in the Court of Appeals and in the appeals to the Supreme Court of the United States the t.i.tle of the case is Hunter _vs._ Fairfax's Devisee, instead of ”Timothy Trit.i.tle, Lessee of David Hunter,” _vs._ Fairfax's Devisee, and Martin _vs._ Hunter's Lessee.

[373] 1 Munford, 223.

[374] See vol. II, footnote to 209, of this work.

[375] The adjustment was made because of the memorial of about two hundred settlers or squatters (mostly Germans) on the wild lands who pet.i.tioned the Legislature to establish t.i.tle in them. David Hunter was not one of these pet.i.tioners. Marshall agreed to execute deeds ”extinguis.h.i.+ng” the Fairfax t.i.tle ”so soon as the conveyance shall be transmitted to me from Mr. Fairfax.” (Marshall to the Speaker of the House of Delegates, Va., Nov. 24, 1796. See vol. II, footnote to 209, of this work.) The Fairfax deed to the Marshalls was not executed until ten years after this compromise. (Land Causes, 1833, 40, Records in Office of Clerk of Circuit Court, Fauquier Co., Va.)

[376] Two years later, on October 5, 1808, the Marshall brothers effected a part.i.tion of the estate between themselves on the one part and their brother-in-law on the other part, the latter receiving about forty thousand acres. (Deed Book 36, 302, Records in Office of Clerk of Circuit Court, Frederick Co., Va.)

[377] On August 30, 1797, Denny Martin Fairfax conveyed to James M.

Marshall all the Fairfax lands in Virginia ”save and except ... the manor of Leeds.” (See Marshall _vs._ Conrad, 5 Call, 364.) Thereafter James M. Marshall lived in Winchester for several years and made many conveyances of land in Shenandoah and Berkeley Counties. For instance, Nov. 12, 1798, to Charles Lee, Deed Book 3, 634, Records in Office of Clerk of Circuit Court, Frederick County, Va.; Jan. 9, 1799, to Henry Richards, _ib._ 549; Feb. 4, 1799, to Joseph Baker, Deed Book 25, _ib._ 561; March 30, 1799, to Richard Miller, Deed Book 3, _ib._ 602, etc.

All of these deeds by James M. Marshall and Hester, his wife, recite that these tracts and lots are parts of the lands conveyed to James M.

Marshall by Denny Martin Fairfax on August 30, 1797. John Marshall does not join in any of these deeds. Apparently, therefore, he had no personal interest in the tract claimed by Hunter.

In a letter to his brother Marshall speaks of the Shenandoah lands as belonging to James M. Marshall: ”With respect to the rents due Denny Fairfax before the conveyance to you I should suppose a recovery could only be defeated by the circ.u.mstance that they pa.s.sed to you by the deed conveying the land.” (Marshall to his brother, Feb. 13, 1806, MS.)

At the time when the Fairfax heir, Philip Martin, executed a deed to the Marshall brothers and Rawleigh Colston, conveying to them the Manor of Leeds, the lands involved in the Hunter case had been owned by James M.

Marshall exclusively for nearly ten years.

After the part.i.tion with Colston, October 5, 1808, John and James M.

Marshall, on September 5, 1809, made a partial division between themselves of Leeds Manor, and Goony Run Manor in Shenandoah County, the latter going to James M. Marshall.

These records apparently establish the facts that the ”compromise” of 1796 was not intended to include the land claimed by Hunter; that James M. Marshall personally owned most of the lands about Winchester; and that John Marshall had no personal interest whatever in the land in controversy in the litigation under review.

This explains the refusal of the Supreme Court, including even Justice Johnson, to take notice of the compromise of 1796. (See _infra_, 157.)

[378] When Lord Fairfax devised his Virginia estate to his nephew, Denny Martin, he required him to take the name of Fairfax.

[379] Order Book, Superior Court of Frederick Co. Va., III, 721.

[380] 1 Munford, 223. The record states that Judge Tucker did not sit on account of his near relations.h.i.+p to a person interested.