The Life of John Marshall Volume IV Part 17

[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.

[381] It should be repeated that David Hunter was not one of the dest.i.tute settlers who appealed to the Legislature in 1796. From the records it would appear that he was a very prosperous farmer and land-owner who could well afford to employ the best legal counsel, as he did throughout the entire litigation. As early as 1771 we find him selling to Edward Beeson 536 acres of land in Frederick County. (Deed Book 15, 213, Office of Clerk of Circuit Court, Frederick County, Va.) The same Hunter also sold cattle, farming implements, etc., to a large amount. (Deeds dated Nov. 2, 1771, Deed Book cited above, 279, 280.)

These transactions took place eighteen years before Hunter secured from Virginia the grant of Fairfax lands, twenty-five years before the Marshall compromise of 1796, thirty-eight years before Hunter employed Wickham to revive his appeal against the Fairfax devisee, forty-two years prior to the first arguments before the Supreme Court, and forty-five years before the final argument and decision of the famous case of Martin _vs._ Hunter's Lessee. So, far from being a poor, struggling, submissive, and oppressed settler, David Hunter was one of the most well-to-do, acquisitive, determined, and aggressive men in Virginia.

[382] April 23, 1810.

[383] By using the plural "appellees," Roane apparently intimates that Marshall was personally interested in the case; as we have seen, he was not. There was of record but one appellee, the Fairfax devisee.

[384] 1 Munford, 232.

The last two lines of Roane's language are not clear, but it would seem that the "objection" must have been that the Marshall compromise did not include the land claimed by Hunter and others, the t.i.tle to which had been adjudged to be in Fairfax's devisee before the compromise. This is, indeed, probably the meaning of the sentence of Roane's opinion; otherwise it is obscure. It would appear certain that the Fairfax purchasers did make just this objection. Certainly they would have been foolish not to have done so if the Hunter land was not embraced in the compromise.

[385] Since James M. Marshall was the American administrator of the will of Denny M. Fairfax, and also had long possessed all the rights and t.i.tle of the Fairfax heir to this particular land, it doubtless was he who secured the writ of error from the Supreme Court.

[386] 1 Munford, 238.

[387] 7 Cranch, 608-09, 612. The reader should bear in mind the provisions of Section 25 of the Judiciary Act, since the validity and meaning of it are involved in some of the greatest controversies hereafter discussed. The part of that section which was in controversy is as follows:

"A final judgment or decree in any suit, in the highest court of law or equity of a state in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under any state, on the ground of their being repugnant to the const.i.tution, treaties or laws of the United States, and the decision is in favor of such their validity; or where is drawn in question the construction of any clause of the const.i.tution, or of a treaty, or statute of, or commission held under the United States, and the decision is against the t.i.tle, right, privilege or exemption specially set up or claimed by either party, under such clause of the said const.i.tution, treaty, statute or commission, may be re-examined and reversed or affirmed in the supreme court of the United States upon a writ of error."

[388] Randall, II, 35-36.

[389] For a full and painstaking account of the Granville grant, and the legislation and litigation growing out of it, see Henry G. Connor in _University of Pennsylvania Law Review_, vol. 62, 671 _et seq._

[390] See vol. I, 192, of this work.

[391] Connor in _Univ. of Pa. Law Rev._ vol. 62, 674-75.

[392] _Ib._ 676.

[393] See _supra_, 69.

[394] This highly important fact is proved by the message of Governor David Stone to the Legislature of North Carolina in which he devotes much s.p.a.ce to the Granville litigation and recommends "early provision to meet the justice of the claim of her [North Carolina's] citizens for remuneration in case of a decision against the sufficiency of the t.i.tle derived from herself." The "possibility" of such a decision is apparent "when it is generally understood that a greatly and deservedly distinguished member of that [the Supreme] Court, has already formed an unfavorable opinion, will probably enforce the consideration that it is proper to make some eventual provision, by which the purchasers from the State, and those holding under that purchase, may have justice done them." (Connor in _Univ. of Pa. Law Rev._ vol. 62, 690-91.)

From this message of Governor Stone it is clear that the State expected a decision in favor of the Granville heirs, and that the Legislature and State authorities were preparing to submit to that decision.

[395] _Raleigh Register_, June 24, 1805, as quoted by Connor in _Univ.

of Pa. Law Rev._ vol. 62, 689.

The jury found against the Granville heirs. A Mr. London, the Granville agent at Wilmington, still hoped for success: "The favorable sentiments of Judge Marshall encourage me to hope that we shall finally succeed,"

he writes William Gaston, the Granville counsel. Nevertheless, "I think the Judge's reasons for withdrawing from the cause partakes more of political acquiescence than the dignified, official independence we had a right to expect from his character. He said enough to convince our opponents he was unfavorable to their construction of the law and, therefore, should not have permitted incorrect principles to hara.s.s our clients and create expensive delays. Mr. Marshall had certainly no interest in our cause, he ought to have governed the proceedings of a Court over which he presided, according to such opinion--it has very much the appearance of s.h.i.+rking to popular impressions."

London ordered an appeal to be taken to the Supreme Court of the United States, remarking that "it is no doubt much in our favor what has already dropt from the Chief Justice." (London to Gaston, July 8, 1805, as quoted by Connor in _Univ. of Pa. Law Rev._ vol. 62, 690.)

He was, however, disgusted with Marshall. "I feel much chagrin that we are put to so much trouble and expense in this business, and which I fear is in great degree to be attributed to the Chief Justice's delivery." (Same to same, April 19, 1806, as quoted by Connor in _ib._ 691.)

For more than ten years the appeal of the Granville heirs from the judgment of the National Court for the District of North Carolina reposed on the scanty docket of the Supreme Court awaiting call for argument by counsel. Finally on February 4, 1817, on motion of counsel for the Granville heirs, the case was stricken from the docket. The reason for this action undoubtedly was that William Gaston, counsel for the Granville heirs, had been elected to Congress, was ambitious politically, was thereafter elected judge of the Supreme Court of North Carolina; none of these honors could possibly have been achieved had he pressed the Granville case.

[396] 7 Cranch, 625.