HISTORY OF THE SUPREME COURT
OF THE UNITED STATES

CHAPTER VII

MARSHALL AND HIS CHIEF COADJUTOR, STORY



The great case before the Supreme Court of the United States in 1809-1810 was that arising from the act of the Georgia Legislature, in 1796, repealing the Yazoo land grants of 35,000,000 acres, after conclusive evidence had shown that the empowering act had been obtained by bribery.

About a month before the act was repealed, when the whole country knew the sworn details of the bribery, and when it was well known that the incoming Legislature was pledged to annul the granting act, the Georgia Mississippi Company hastily sold to William Wetmore and other New England capitalists, mostly living in Boston and adjacent cities, a tract of their grant.  This tract lay in what is now the State of Mississippi, and was estimated to contain the enormous total quantity of 11,380,000 acres.  For this immense area, the New England Mississippi Company (for so the buying company called itself) agreed to pay the Georgia Mississippi Company ten cents an acre in gradual installments.1


A Collusive Suit Arranged.


Who had suggested this sale in view of the fact that the Georgia Legislature was bound to revoke the grant ?  And upon what assurances did the Boston capitalists contract to buy the land, knowing as they did that revocation was imminent and certain ?

Did the proposal and assurances emanate from Justice James Wilson, the foremost financier in the bribery transaction ?  It was he, as we have seen, who contributed the greatest share of the funds.  We have seen, too, how after the Legislature of Pennsylvania had repealed the charter of the Bank of North America, owned by Wilson and others, Wilson had argued that the repeal was in violation of the obligation of a contract, and that it was injuring innocent parties who had bought the bank’s stock.  And also we have seen how Wilson was the identical delegate causing to be inserted in the Constitution of the United States that sly, obscure but formidable clause prohibiting State legislation impairing the obligation of a contract.  Did Wilson advise the hurried and collusive sale to the New England capitalists in order that they might be able to plead in court that they were innocent purchasers, and knew nothing of the bribery and fraud ?  This, among other defenses, was precisely what they did plead, and continued to plead for fifteen years, although every schoolboy knew of the great Yazoo frauds, so widespread and rank a scandal did they make.

After an examination of the circumstances, little doubt remains that a trumped-up case was manufactured in order to bring the matter before the Supreme Court of the United States, and thus have the Georgia rescinding act declared unconstitutional.  Knowing that the Georgia Legislature would revoke the grant, the capitalists concerned hastened to fabricate a case in this way :  A portion of the lands of the Georgia Mississippi Company were conveyed by the original grantees to James Greenleaf ;2 from him, these lands came through a chain of conveyances to John Peck, who, in turn, conveyed them with covenants, to Fletcher.  After the Georgia Legislature had rescinded the grant, Fletcher sued Peck for a covenant broken.  This suit, of course, as premeditated, would open up the whole question of the constitutionality of the Georgia rescinding act.

Such evidence as is accessible tends to prove beyond question that this was the plan definitely agreed upon, and with this particular ulterior end in view.


Story Dines with the Justices.


The case of Fletcher vs. Peck was twice argued before the Supreme Court of the United States, the first time in 1809.  On the first occasion, Peck was represented by John Quincy Adams, and Robert Goodhue Harper.  At the second argument in 181o, Joseph Story and Harper represented Peck.  The note on the Supreme Court record reads :  “ The plaintiff sued out his writ of error, and the case was twice argued, first by Martin, for the plaintiff in error, and by J.Q. Adams and R.G. Harper for the defendant, at the February term, 1809, and again at this term by Martin, for the plaintiff, and by Harper and Story, for the defendant.”3

But meanwhile some significant things were happening which are not related in the Supreme Court records.  Story was a member of Congress at the time, and was briskly employed pushing the claims of the New England capitalists in that body ;  in his private correspondence with his friend Samuel P.P. Fay, he frankly admitted so.4  What was vastly more to the point, he was very frequently and intimately hobnobbing with the judges of the Supreme Court of the United States.  In a letter, dated Washington, February 16, 1808, to Fay, Story wrote :  “. . . The scene of my greatest amusement, as well as instruction, is the Supreme Court.  I daily spend several hours there, and generally when disengaged, dine and sup with the judges. . . .”5

When Story wrote this letter, little did he think of what historical importance it would have !

Inasmuch as Story soon after this became an Associate Justice, and ranks, after Marshall, as an ascribed great expounder of jurisprudence, it is advisable and appropriate to digress here in order to sketch his antecedents, life, environment and interests.

His grandfather, William Story, was a British official at Marblehead, Massachusetts.  His father was a physician, and supported the American Revolution.  “ He married for his first wife,” wrote Joseph Story to his son, William W. Story, on January 23, 1831, “ Miss Ruth Ruddock, daughter of John Ruddock, Esq., a man who had accumulated a considerable property in the ship-building business in Boston.  She died in the year 1777, leaving seven children.  In the autumn of 1778, my father married Miss Pedrick, whom you know as your grandmother still living, and by her had eleven children, of whom I am the eldest.  Your grandfather’s father was an opulent merchant, and, indeed, for that day a very opulent merchant.”6

Educated at Harvard, Joseph Story necessarily was subject to the acknowledged caste environment systematically prevailing there.  Opening a law office in Salem, he admixed politics and law practice.  He was a strong believer in property qualifications for voters, as was later shown when, as a member of the Massachusetts Constitutional Convention of 1820, he vigorously advocated the retention of the restrictive electoral laws in force.7


Marshall Validates the Yazoo Frauds.


The decision handed down by Chief Justice Marshall, in the case of Fletcher vs. Peck, made not merely a considerable, but a very great, public sensation.  The decision, in brief, held that the grant made by the State of Georgia was in the nature of a contract which could not be impaired or revoked by subsequent legislation.  This being so, he decided, the rescinding act of 1796 was “ repugnant ” to the Constitution, and therefore null and void.8

From this decision Justice Johnson caustically dissented, in a strong opinion, implying collusion in the bringing of the action.  “ I have been very unwilling,” he said, “ to proceed to the decision of this cause at all.  It appears to me to bear strong evidence upon the face of it, of being a mere feigned cause.  It is our duty to decide on the rights, but not on the speculations of parties.  My confidence, however,” [was this meant ironically?], “in the respectable gentlemen who have been engaged for the parties, has induced me to abandon my scruples, in the belief that they would never consent to impose a mere feigned case upon this court.”

To form an adequate realization of the wide and lasting stir caused by this decision, it is necessary to picture the public disgust at the methods by which the Yazoo land grants had been obtained, and the deep public horror at the Supreme Court venturing to annul a State law as unconstitutional, especially a law explicitly designed to forfeit a grant of 35,000,000 acres secured by both fraud and corruption.  The sworn testimony of that bribery was published in official records, available to everyone ;  not a well-informed person was there who did not know them ;  and besides, the scandal had been agitated for fifteen years.  Only a short time before the decision, the Secretary of the Treasury, in 1810, under a resolution of the House of Representatives, reported of the Yazoo claims :

The Yazoo claims, so-called, embracing about 35,000,000 acres in the Mississippi Territory and derived from a pretended sale by the Legislature of Georgia, but declared null and void, as fraudulent, by a subsequent legislature.  The evidence as published by the State of Georgia and by Congress, shows that that transaction, even if considered as a contract, is as such, on acknowledged principles of law and equity, null ab initio, it being in proof that all the members of the Legislature who voted in favor of the sale, that is to say, the agents who pretended to sell the property of their constituents, were, with the exception of a single person, interested in, and parties to, the purchase.  Much litigation must be expected, and orders have lately been given for the removal of certain intruders, some of whom claimed the land under this supposed title."

Put what devious tack did Marshall take so as to evade the settled principle of law that fraud vitiated every contract ?  With unsurpassed audacity, he proceeded upon the complacent assumption that the bribery of legislators was merely a fanciful story, and waved the facts lightly aside.

By capitalists of every description the decision was greeted with jubilation.  They saw its prodigious purport.  It meant that any special privilege, any act bestowing property, or creating new property rights, whether obtained by the grossest bribery, was a fixed and inalienable vested right, which no subsequent legislative act could rescind.


The Claimants Get Nearly Five Million Dollars.


In Congress a storm of bitter strictures was caused by the decision,9 but how much of these arose from simulated indignation in order to pander to constituencies, how much from genuine resentment, and how much from violence to sectional convictions that the decision was an usurpation of State’s rights, cannot be accurately gauged.  So inflamed, however, was the public temper by the decision, that Congress, for a considerable time, held back from giving the Yazoo companies the indemnity they demanded under the Supreme Court’s decision.  The areas included in their grants had been ceded by Georgia to the United States in 1802, and could not be restored.  Finally, in 1814, Congress passed an act appropriating a fund of $5,000,000 for the indemnification of the claimants, and establishing a Board of Commissioners to determine the amount of the awards.  Under this law these awards were made in specially-issued Government stock :

To the Upper Mississippi Company................. $   350,000
Tennessee Company .................................. 600,000
Georgia Mississippi Company10.............. 1,500,000
Georgia Company .................................... 2,250,000
persons claiming under citizenship rights....... 250,000
Total .......................................... $4,950,000

Two years later we find Thomas L. Winthrop, one of the chief beneficiaries of this decision, buying, at auction, one-half of the unsold lands of the Kennebec Company, in Maine.  This company, in 1753, had bought from the old Plymouth Company, a large tract of land in that province, then a part of Massachusetts.  The grant as defined by law, lay fifteen miles on each side of the Kennebec River, in the vicinity of what are now the city of Augusta and the town of Winthrop and other places.  The boundary was described as the “ uttermost limits of the Cobbosseeconte,” but the company’s surveyors fraudulently ran their lines to the “ farthest tiny rivulet ” they could find, and thus boldly took in great areas of additional land.  Much litigation resulted over title to parts of the land ;  settlers after clearing the forests, and laying out farms, were then compelled to pay twice and thrice over to rival claimants ;  and when, in 1816, the courts decided in favor of the Kennebec Company, the settlers were evicted and their homes and improvements seized on the ground that they had never obtained title from the Kennebec Company.  When the settlers rose in armed revolt, and an insurrection on a small scale broke out, militia were requisitioned to shoot them down.  Winthrop subsequently sold his land to Congressman Joseph L. Williams.

It was, says Shirley, the knowledge of Marshall’s manipulation of the Supreme Court that “lay at the bottom of the attempts in Congress (which gave Webster so much trouble, and some of the judges so much uneasiness) to prohibit the judges from setting aside a State law as unconstitutional unless, a certain number of judges sat in the cause and concurred in the judgments.  It was one of the causes of Jefferson’s dislike of Marshall, which made him say with a bitterness unusual with him, in his letter to Ritchie, of December 25, 1820:  ‘ An opinion is huddled up in conclave, perhaps by a majority of one, delivered as if unanimous, by a crafty chief judge, who sophisticates the law to his mind by the turn of his own reasoning.’ ”11

His success in this case, it may well be understood, gave Story a great prestige in capitalist circles as an attorney of distinguished mark.  But like many other lawyers of the day, Story was not only a practising attorney but a capitalist as well.  The very next year after the Yazoo decision, he became president of a bank ;  the circumstances under which the charter of this bank and the charters of other banks were granted, and Story’s methods in connection with the passage of the acts, aroused much criticism in Massachusetts.

Throughout the United States, a hostile feeling toward banks generally prevailed.  We have seen how in New York, during this period, the Legislature was being systematically corrupted to pass acts giving bank charters.  It was likewise so in other States.  True, the Constitution declared that no State “ shall coin money, emit bills of credit, or make anything but gold and silver a tender in payment of debts.”  But the Supreme Court of the United States later construed this clause to mean that “ bills of credit ” were not intended to apply to bank notes.  Long before this decision was made, began the enormous outpouring of State bank notes the immense frauds of which are described in so many legislative and other documents of the time.  Vast issues of bank notes were based upon “wild-cat” securities having little or no value, and banks frequently had an outstanding issue of millions of dollars in bank notes, when there was hardly anything worthy of being called assets to back them up.

This currency, so often fraudulent and spurious, was loaned at usurious rates of interest, and until Jackson’s administration was received as payment for purchases of public lands.  What Governor Tompkins, of New York, wrote in a message to the Legislature, in 1812, applied to banks throughout the country.  Bank stock, he said, was “generally owned by the speculating, the wealthy and the aspiring part of society.”  Enterprising farmers, manufacturers and mechanics, he went on, experienced great difficulty in raising money at lawful rates of interest upon the best security.  The necessity of getting temporary pecuniary relief frequently drove them “ into the embraces of unprincipled, avaricious usurers, who fertilize upon the wants and distresses of the needy and unfortunate.”  He further referred to banks as “ vesting in the hands of the wealthy and aristocratic class of powerful engines to corrupt and subdue republican notions.”12


Story Puts Through Bank Charters.


In 1810, Story was elected to the Massachusetts Legislature.  Why did he choose to leave the more prominent position of a seat in Congress for the lesser post of a seat in that Legislature ?  Was it because he had satisfactorily put the great Yazoo land claims through, and had plans of his own necessitating his presence in the Massachusetts Legislature ?  What these plans were was quickly revealed.

As soon as the Legislature met in 1811, Story was elected Speaker of the House.  On June 25, 1811, a bill was passed chartering the Merchants’ Bank, with a capital of $300,000.  Among the incorporators were Story’s clients, George Crowninshield, Jr., and John Crowninshield.13  The Crowninshield family were the owners of valuable wharf-property in Salem ;  two years previously, in 1809, the Massachusetts Legislature had passed an act chartering them as the Salem India Wharf Corporation.14  The Crowninshield and the Adams families, it may be said, became intermarried.

The very next day after the Merchants’ Bank was chartered, a bill was passed by the Massachusetts Legislature (on June 26, 1811) chartering the State Bank, with a capital of $3,000,000.15  One of the leading incorporators was William Gray, a rich shipowner and noted politician who had also been an incorporator of the Essex Bank, chartered by the Massachusetts Legislature in 1799.  It may be remarked here that a grandson of William Gray became one of the Associate Justices of the Supreme Court of the United States.

Both the Merchants’ Bank and the State Bank charters were lobbied through the Legislature by Story.  Although his name, for obvious reasons, did not appear among the list of incorporators, yet his connection was soon thereafter openly shown when he was elected a director, and then President of the Merchants’ Bank of Salem.  Writing to Story’s son and biographer, William W. Story, on August 25, 1847, J.W. Treadwell, long cashier of the Merchants’ Bank, thus explained the origin of these two bank charters :

“. . . Your father, while a member of the Legislature of Massachusetts, exerted his influence to obtain acts of incorporations for the State Bank in Boston, and the Merchants’ Bank in Salem, the capital stock of which was almost exclusively owned by members of the political party then dominant. . . . At the organization of the Merchants’ Bank, your father was elected to the Board of Directors, and I was invited to go into the bank as one of its officers.  As Cashier of that institution, to which I was subsequently elected, I was brought into close intimacy with him ;  and yet a closer one upon his election to the Presidency of the Bank, in a couple of years afterwards.”16


Story Appointed an Associate Justice.


In the same year in which these charters were enacted, Story, in November, 1811, was appointed an Associate Justice of the Supreme Court of the United States.

His appointment, it is needless to say, was entirely satisfactory to both the land and the banking interests.  During many of the years that he sat on the Supreme Court bench, he was not only president of the Merchants’ Bank, but that bank greatly profited from the deposits of Government money.  In another letter to William W. Story, Treadwell further says that, “ The Merchants’ Bank had always, since its establishment, been the depository of the funds of the United States Treasury, which had often been large [Salem was a busy sea-port town with considerable customs revenues], and contributed to swell its dividends.”  A competing bank in Salem, Treadwell says, forwarded a memorial, during President Jackson’s Administration to the Secretary of the Treasury Louis McLane, stating that inasmuch as the president and the cashier of the Merchants’ Bank were enemies of the administration, the Government deposits should be removed to the friendly bank.  But, adds Treadwell, the Government funds were left undisturbed in the Merchants’ Bank.17  From being stanch Republican, Story had changed his politics, and became a deep-rooted Federalist.  As for McLane’s methods, they were later revealed in the celebrated bribery contract case of the Baltimore and Ohio Railroad Company, of which corporation he became president.18

Chief Justice Marshall had decided the great Yazoo land frauds case in favor of Story’s clients.  It now came Story’s turn to decide the long-pending case of the Fairfax estate favorable to Marshall.


Marshall’s Fairfax Claim Up Again.


The case of Hunter vs. Fairfax’s Devisee had come up before the Supreme Court of Appeals of Virginia, in April, 1810.19  Why there was such a long lapse between the decision of the Winchester court, in 1794, and the decision of this court, is not clearly explained.  Evidently, one aspect of it was new points arising from the gross violation of the compromise law by John Marshall and his brother, as the purchasers of Fairfax’s claim.  In a decision which was really a sharp exposure of the Marshalls’ methods and pretensions, the Supreme Court of Appeals of Virginia reversed the lower court.

“ I consider,” said Judge Roane, “ the compromise as having been deposited with the court for the purpose of settling all the causes embraced thereby, according to the provisions thereof ;  and I can never consent that the appellees after having got the benefit thereof, should refuse to submit thereto, or pay the equivalent ;  the consequences of which would be that the Commonwealth would have to remunerate the appellant [Hunter] for the land recovered from him.  Such a cause cannot be justified on the principles of justice or good faith. . . .”20

The unprecedented action was now taken of carrying this reversal to the Supreme Court of the United States, which issued a writ of error.

The uncontroverted points up to this time were :

Lord Fairfax (as was agreed by both litigants), had conveyed 300,000 acres to his nephew, T.B. Martin, who had reconveyed them to Fairfax in fee.

Virginia had passed acts of confiscation of the property of aliens.

Denny Fairfax, Lord Fairfax’s heir, was a British subject ;  he had always lived in England up to the time of his death in about the year 1803.

John Marshall and his brother, James Markham Marshall, had bought Denny Fairfax’s claim to the estate in the Northern Neck of Virginia.21

John Marshall had agreed to the act of compromise passed by the Virginia Legislature, but later, after considering to what full effect the provisions of Jay’s Treaty could be used, had (so the Supreme Court of Appeals of Virginia held) violated, if not repudiated it, in bad faith.

Under the form of Fairfax’s Devisee vs. Hunter’s Lessee, the case came before the Supreme Court of the United States, at the February term, in 1813.  At the argument Chief Justice Marshall and Justice Bushrod Washington were absent.

The attorneys for Fairfax’s Devisee contended, among other points, that Fairfax’s estate had never been taken from him by any equivalent mode of confiscation.  The treaty of peace of 1783, it was argued, found Denny Fairfax in possession of his estate unaltered from the condition in which he originally inherited it, and so operated as a release and confirmation to the British proprietor.  His title, the argument further ran, was explicitly acknowledged and confirmed by Jay’s Treaty of 1794.

Harper, attorney for Hunter, argued that Lord Thomas Fairfax’s original power had been only one to grant lands to individuals ;  that it was not contemplated that he himself should occupy the lands ;  the power was a mere transference or delegation of power which passed to Virginia at the time of the Revolution.  “ This,” said Harper, “ was the construction put upon it by Lord Fairfax himself— for when he intended to appropriate any part of the lands to his own use, he granted it to a third person, and then took back the title from his own grantee.  His deeds were not in the common form, but were made to resemble those of the crown.”  An alien, continued Hunter, could not sell ;  he had nothing but a naked possession.


Story Decides in Favor of Marshall.


When Justice Story handed down the decision in this case, on March 15, 1813, Marshall and Todd were absent.  Story decided that although Denny Martin (or Fairfax) was an alien enemy at the time of Lord Fairfax’s death, yet he nevertheless had legitimately inherited the estate under Fairfax’s will.  That testament, Story held, could not be divested on the ground of alienage, except by a specific official act, called inquest of office, or by some specific legislative act, or its equivalent.  A general act would not suffice for confiscation.  And, since no proceedings of escheat had ever been taken against the estate before the adoption of Jay’s Treaty of 1794, therefore the defeasible title vested in the alien, Denny Fairfax, was completely protected and confirmed by that treaty.22

Justice Johnson was the only dissenting member of the Supreme Court.  He asserted that the disability of an alien to hold real estate was a general principle of common law.  He declared with significant emphasis that Jay’s Treaty of 1794 extended to rightful causes only.  In the case of Smith vs. the State of Maryland, he pointed out, the Supreme Court of the United States had once sustained a specific confiscation of lands, under a law of that State, although there was neither conviction nor inquest of office.  The Legislature of Virginia had like power to confiscate, Justice Johnson said.  And, after all, he added, the interest acquired under the devise was a mere, shadowy scintilla juris which had been extinguished by the grant to Hunter.23

So Chief Justice Marshall and his brother managed to get legal hold of the much-desired “ Leeds Manor,” by a decision of his own court, handed down by an Associate Justice whose fraudulent case, involving such immense interests, had been decided favorably by Marshall three years previously.  Story’s decision revealed an amazingly comprehensive intimacy with all of the twists and turnings of ancient Virginia laws, legislation and practices — a knowledge that no other member of the Supreme Court but Marshall had.  In fact, it has never been disputed that Story, in his Supreme Court career, was a complete satellite of Marshall, and registered into decisions the species of law dictated by Marshall ;  Story himself practically acknowledged this.


Justice Livingston’s Case.


Equally significant was the fact that virtually every member of the Supreme Court was personally interested in some case coming up for final decision.  It would clearly seem that each voted for the other’s cases.  Thus, in the very month that the Fairfax case was argued, the case of Livingston and Gilchrist vs. The Maryland Insurance Company came before the Supreme Court.  The Livingston in this case was none other than Brockholst Livingston, at that identical time an Associate Justice of the Supreme Court of the United States.  The case had gone against Livingston and Gilchrist in the Circuit Court, in Maryland, and now came up on appeal.  When the case was passed upon by the Supreme Court, Justice Livingston absented himself.  Todd also kept away, probably because of ill health, from which he greatly suffered.

The facts, as stated in the Supreme Court reports, revealed a commercial turpitude not at all harmonizing with the lofty qualities accredited to a Supreme Court Justice.  Briefly, the facts were :

Julian Hernando Baruso, a Spanish subject, had received a royal license from Spain to import goods from Boston to Peru and Buenos Ayres, and vice versa.  This license was a great asset ;  the laws of Spain allowed trade under a Spanish license only.  On August 24, 1804, Baruso entered into a contract with one Anthony Carroll to transport goods to Lima ;  Brockholst Livingston was Carroll’s surety for the performance of the contract.  On January 25, 1805, war was declared between Great Britain and Spain.  Brockholst Livingston made a new contract with Baruso for the transportation of $50,000 worth of goods, “the funds and vessel to be furnished and advanced by the said L.”24  The articles were those of partnership with Livingston ;  Baruso and Livingston were to divide the profits equally, and Livingston was to get commissions from the sale of the merchandise.  On the return voyage a cargo was to be brought back.  But war was on and the cargo was liable to seizure and confiscation by Spain or by British ships.  Under the laws of Spain, trade could be carried on only by special permission, and under a Spanish name and Spanish papers.  To meet this contingency, Livingston shrewdly got Baruso to contract that he (Baruso) would be answerable for the detention of the ship or confiscation of the goods, and would pay the duties.

Livingston then bought the ship Herkimer, and entered into a contract with Gilchrist, James Baxter and Edward Griswold for the contribution of joint funds to buy the cargo.  This cargo was shipped to Lima, and a return cargo was received at Guayaquil.


An Illegal Voyage and Fraudulent Papers.


On the return voyage, just after doubling Cape Horn, Baxter, who was supercargo and First Mate, gave to Mate Giles a bundle of papers to conceal.  Near the port of New York, the Herkimer was captured by the British warship Leander.  On searching the vessel, the British officers found two distinct sets of papers ;  one set showing the cargo to be the property of Baruso, and another set representing it to be that of Livingston and the other three Americans.  The Herkimer was taken as a prize to Halifax and condemned.

The Maryland Insurance Company refused to pay insurance on the ground that it had insured against loss by capture warranted American property only.

The conflicting points in the resulting suit were :  The insurance company claimed that the basis of the whole trade with Peru was the fact that Baruso, as a Spanish subject, had a royal license for the trade ;  therefore the cargo was under Spanish, not neutral laws, and, as such, was liable to seizure and confiscation.  On the other hand, Livingston and Gilchrist contended that Baruso was then residing in New York, was a neutral, and that the cargo was that of neutrals.

Attorney-General Pinckney set forth :  “ The concealment of the papers was unneutral, although the parties were justifiable in using them to protect their illegal trade. . . . But this was not a concealment of innocent papers.  It was a concealment of papers tending to prove the property to be belligerent.  It increased the suspicions already excited by other circumstances.  Baxter was supercargo, and his acts bind the others, although he was a partner.  All the partners are affected by the fraud of any one of them. . . .

This concealment, connected with the other circumstances, justified the condemnation.  There were documents showing the property to be in four Americans.  Among the concealed papers was a copy of the royal Spanish license authorizing a Spanish subject resident in Boston to import goods into the United States from the Spanish colonies.  The adventure appeared to be Spanish.  It could only be carried on by a Spaniard.

“ There was also concealed another paper of great effect — a power of attorney from Baruso to Baxter, the supercargo, in which Baruso says the cargo ‘ is laden for me and on my account and risk.’  It proved the property to be in Baruso.  It calls him a Spanish merchant.  It showed his national character to be belligerent, although he was resident in another country.”25

Attorney-General Pinckney went on to say that Baruso “ was the cloak of the transaction,” that there were two sets of documents ;  that Baxter prevaricated to the British, and that there was nothing left for the British but to condemn the ship and cargo.  “ Why did he [Baxter] show the neutral tapers only ?  The object was to defeat an acknowledged belligerent right, and he endeavored to deceive the adjudicating court.”26

Confronted by this strong statement of facts, what did the Supreme Court decide ?


Marshall Decides in Favor of Livingston.


In deciding this case, Chief Justice Marshall turned a somersault, holding, in effect, the precise opposite of what he had held, a few years before, in the case of M’Ilvaine vs. Coxe.  Reversing the Circuit Court’s decision, Marshall decided in favor of Livingston and Gilchrist on these grounds :  That a Spanish subject who came to the United States at a time of peace between Great Britain and Spain to carry on trade between the United States and the Spanish provinces, under a royal Spanish license, and who continued to reside in the United States, and carried on trade, after the breaking out of war, was to be considered an American merchant, even although the trade could be lawfully carried on by a Spanish subject only.

A second point in Marshall’s decision was that the insurance company ought to have known that the vessel would take all the papers necessary to make the voyage legal — in other words, that deception would be practised.

This case is an example of what clearly appears to be judicial logrolling for the others’ interests.  Likewise was a case, later on, involving the interests of Associate Justice Gabriel Duvall, who was an extensive Maryland landowner, and closely affiliated with the Carrolls.27  He had been appointed to the Supreme Court by President Madison, in 1811.  Many of Marshall’s brothers and relatives were directors of turnpike, ferry and canal companies in Virginia, and Marshall and Justices Washington and Duvall were interested in banks.28  But how varied otherwise were their total interests, it is not possible to learn.


The High Virginia Court Denounces the Fairfax Decision.


It was fully a year after Story’s Fairfax decision before its tremendous import, especially as regarded the enormous constitutional powers asserted and exercised by the Supreme Court, in making that decision, were generally understood.  The subject of the recovery or restoration of confiscated estates, or claims to them, had long been a sore and vital one in many States.29  But the events of the second war with Great Britain more or less subordinated other subjects and agitations in the popular mind, and engrossed public attention.

When, however, in April, 1814, the Supreme Court of Appeals of Virginia defied the mandate of the Supreme Court of the United States in the Fairfax case, and declared that in presuming to pass on appeal upon purely State litigations, the Supreme Court of the United States had usurped powers, there was a commotion.  The sight of one exalted court denouncing another was, indeed, unusual.

Point by point the judges of the Supreme Court of Appeals of Virginia in seriatim form exhaustively reviewed the history of the Fairfax litigation, and exposed the legal sophistries that had been employed to recover the estate.  But the chief burden of the Virginia court’s excoriation of the Supreme Court of the United States was in seeking to show that in even hearing that case after it had been decided adversely to the Fairfax claimants by the highest court in Virginia, the Supreme Court of the United States had exceeded its Constitutional powers.30  The seriatim opinions of the judges of the Supreme Court of Appeals of Virginia were penetrating and unsparing.  Knowing, as they did, the entire history of the Fairfax case and John Marshall’s purchase of the Fairfax claim, the Virginia judges must have been extremely indignant to invite the contempt of the public for all courts.  They knew that the example of one high court denouncing the highest court in the country could not fail to undermine respect for the courts ;  for if courts themselves disagreed violently, what was the general public to think ?  But this consideration in nowise deterred the judges of the Virginia court ;  and each judge concluded his seriatim opinion with these extraordinary pronouncements :


Refuse Obedience to the Supreme Court.


Judge Cabell : “ Upon every view of the subject which I have been able to take, I am of the opinion that the writ of error was improvidently allowed, and that this court should decline obedience to the mandate of the Supreme Court of the United States.”31

Judge Brooks declared that the mandate was issued in violation of the Constitution of the United States, “ and that obedience to the mandate ought to be refused.”32

Judge Roane :  “ My conclusion consequently is, that everything done in this cause, subsequently to the judgment of reversal by this court is coram non judice, unconstitutional and void, and should be entirely disregarded by this court.  . . .”33

Judge Fleming also denounced the action of the Supreme Court of the United States, saying that it was in violation of the Constitution and that “ it is inexpedient for this court to obey the mandate in question.”34

This was the collective opinion of the judges of the Supreme Court of Appeals of Virginia, as entered on the records :

“ The court is unanimously of the opinion that the appellate power of the Supreme Court of the United States does not extend to this court, under a sound construction of the Constitution of the United States ; — that so much of the 25th section of the act of Congress, to establish the judicial courts of the United States, as extends the appellate jurisdiction of the Supreme Court to this court, is not in pursuance of the Constitution of the United States ;  that the writ of error in this case was improvidently allowed under the authority of that act ;  and that obedience to its mandate be declined by this court.”35

Here was an unparalleled situation — a State court refusing obedience to the highest National judicial tribunal.  How did the Supreme Court of the United States meet it ?  Did the Supreme Court hale up the Virginia judges for contempt of court as they would have done had the defiance come from ordinary men ?  By no means.  It neither issued writs for contempt, nor did it even remotely threaten imprisonment.  The issue came up before it in 1816, under the form of the case of “ Martin, Heir-at-law and Devisee of Fairfax vs. Hunter’s Lessee.36  The question was elaborately argued as to whether the Supreme Court of the United States had acted within its Constitutional power.

Among the legal profession a singular interest was manifested as to just what attitude the Supreme Court would take in reply to the defiance of the Virginia Court of Appeals.


Story Pacifically Reaffirms His Decision.


Justice Story handed down the decision.  Instead of castigating the Virginia judges, he urbanely went out of his way to say suave things of them, confining his decision to an argument that the Supreme Court of the United States had acted constitutionally.

“ The questions involved in this judgment,” he held, “ are of great importance and delicacy.  Perhaps it is not too much to affirm, that upon their right decision rest some of the most solid principles which have hitherto been supposed to sustain and protect the Constitution.  The great respectability, too, of the court whose decisions we are called upon to review, and the entire deference which we entertain for the learning and ability of that court, add much to the difficulty of the task which has so unwelcomely fallen upon us. . . .”37

Story decided that the appellate jurisdiction of the United States Supreme Court extended to a final judgment or decree in any suit in the highest court of law or equity of a State, where was drawn into question these points :  The validity of a treaty, a statute of the United States, or an authority exercised under the United States, in cases where the decision was against their validity.  This jurisdiction, he held, also covered all cases where there was any question of the validity or authority of a State law on the ground of its being repugnant to the Constitution, or to treaties, laws of the United States, etc.

In brief, Story decided the Fairfax suit favorably to the Marshall interests, and then when he was attacked by four judges for having acted unconstitutionally, Story acted as a judge on his own actions and decided that Story acted constitutionally.

In these chapters we have given, for the first time, the origin and history of the noted case, in 1816, of Martin vs. Hunter’s Lessee, which case has ranked, in its assertion of the sovereign powers of the Supreme Court of the United States, as one of the most important in all of that court’s annals.  But although a multitude of writers and lawyers have cited the 1816 case, it has been reserved for this present work to present the actual facts — facts revealing that it originated in Chief Justice John Marshall’s own personal interests, although no doubt, the Supreme Court would inevitably have taken that stand at some other time and in some other case.  Those who have read the conventional glowing accounts of Marshall’s integrity may be tempted to inquire surprisedly :  Can this be so ?  We answer :  These are the facts as they are set forth in the records.




1 See, Case of Brown vs. Gilman, Wheaton’s Reports, Supreme Court of the United States, Vol. IV: 255.

2 It has been shown how, in another of the four associated companies — the Georgia Company — Greenleaf held 2,500,000 acres, and how James Wilson contributed 25,000 to the original capital of the Georgia Company, in which he held 750,000 acres.

3 VI Cranch, 114-115.  It is again worthy of note that Judge William Cranch, the reporter of the Supreme Court at this time, had been the attorney for James Greenleaf in negotiating that great scandalous purchase of 9,000 lots in the city of Washington.

4 “ Joseph Story’s Life and Letters ” (Written and edited by his son, William W. Story), Vol. I: 197.

5 Ibid., 62.  Socially and in his private circle, Marshall particularly was of an extremely convivial disposition.  Unlike Justice Bushrod Washington, who was “ lean and emaciated, with a face like marble,” Marshall was strong and robust.  In his youth he had been much habituated to athletic exercises.  He could stand up under much festivity.

6 Ibid., 2.

7 See later.

8 See, VI Cranch, 87.

9 See, for instance, accounts given in Senator Benton’s “Thirty Years in the Senate.”

10 “American State Papers :  Public Lands,” Vol, VI: 21-22.  (Doc. No. 759.)  But not satisfied with the $1,5oo,000 award made to the Georgia Mississippi Company, a petition signed by Thomas L. Winthrop, Thomas Wetmore, William Sullivan, John F. Loring, Joseph Morton and other Boston capitalists, of the New England Mississippi Company, who had bought that company’s claim, was sent to Congress, in 1837, complaining that an erroneous deduction of $130,42,5.12 had been made from their original award, and saying that “the company had been left to state their grievances for above twenty successive years.”  The unblushing cupidity of these capitalists was long a subject of comment.— See, “ American State Papers :  Public Lands,” Vol. VIII 985-986.  (Doc. No. 1594)  In Brown vs. Gilman, IV Wheaton, 255, it is stated that the New England Mississippi Company received $1,083,812 in all.

11 “ Dartmouth College Causes,” 311.

12 N.Y. Assembly and Senate Journals, 1812: 6.

13 “ Laws of Massachusetts, 1809-12,” Vol. V : 494.  Story was George Crowninshield’s attorney in lawsuits.  See, “ Massachusetts Reports,” Vol. III: 4-14 (1807, etc.).

14 “ Laws of Massachusetts, 1809-12,” Vol. V : 19.

15 Ibid., 501.

16 “ Story’s Life and Letters,” Vol. I:205.

17 Ibid., 158-159.

18 Alexander J. Marshall, in 1853, sued the Baltimore and Ohio Railroad Company for $50,000, which he proved was owed to him for services under a special contract for lobbying a bill through the Virginia Legislature granting to the company the right of way through Virginia.  Marshall was employed by McLane as lobbyist.  See, Case of Marshall vs. Baltimore and Ohio Railroad Company, Howard’s Reports, Supreme Court of the United States, Vol. XVI: 314.  This case is described more in detail further on in this present history.

19 “Judge Tucker,” the note on the record reads, “not sitting in this case, through motives of delicacy, being nearly related to a person interested.”—Munford’s Reports, etc., Vol. I: 218.

20 Ibid., 232.

21 The Virginia records show that James Markham Marshall collected the rents, and was the general man of business for the estate.

22 VII Cranch, 603.  The area of land involved in the final determination of this suit is not stated.  John Marshall and James Markham Marshall received all the lands in “ Leeds Manor,” where their posterity continued to reside.
      In an article published in the Greenbag, issue of Dec., 1896, John Marshall’s great granddaughter, Sallie E. Marshall Hardy, writing from family papers and correspondence, stated that in his latter years it was Marshall’s practice every year to pay a visit to his sons and estates in Fauquier County.  Marshall was also described as a slaveholder, and Leeds Manor was thus pictured in that article :  “Leeds Manor is at the foot of Little Cobbler Mountain.  In all the world there is no more beautiful spot.”  Of course, the article gave no hint as to how Marshall obtained his estates.

23 VII Cranch, 631.

24 IV Cranch, 508.  The profits of shipping merchants were extraordinarily large.  The Government extended credit for nine, twelve and eighteen months before it demanded the payment of customs duties.  As soon as the ship arrived, the shipper often sold the cargo at a profit of fifty per cent.  Instead of having to use their profit and capital in further ventures, the shippers had the gratuitous use of Government money for periods from six months to a year and a half.  Thus, John Jacob Astor, who was primarily a shipper, had what was actually a free-of-interest loan from the Government of more than five million dollars.  Hence, it is easy to see what the inducements were for going into commerce.

25 IV Cranch, 523-525.

26 Ibid., 525.

27 See, Case of Henry Cassell, Administrator, etc., vs. Charles Carroll of Carrollton, Wheaton’s Reports, Supreme Court of the United States, Vol. XI: 134-171.  Justice Story decided this case in favor of Carroll.  This note appears in Wheaton’s Reports, p. 153 :  “ Mr. Justice Duvall, being a landholder in Maryland, did not sit in this cause.”

28 In the case of M’Gruder vs. The Bank of Washington (IX Wheaton, 598), Marshall, Washington and Duvall did not sit.

29 In New York and other States the same chicanery was used as in Virginia.  Of this, Governor Tompkins complained to the New York Legislature, in his message, in 1812.  “ Our treasury,” he said, “ for upwards of twenty years, has been constantly drained by the discharge of pretended or real demands against confiscated estates.”  He added that systems theretofore devised by the legislature “have been more or less parried by speculative management or legal ingenuity. . . It would, perhaps, contribute materially to lessen their amount in future, were you to make void, and punish as fraudulent and criminal speculators upon the State, all direct or indirect purchasers of them” [the confiscated estates].— N.Y. Senate and Assembly Journals, 1812: 6.

30 Munford’s Reports (Supreme Court of Appeals of Va.), Vol. IV: 1-59.

31 Ibid., 16.

32 Ibid., 25.

33 Ibid., 54.  Coram non judice — that is, before a court which was not the proper judge.

34 Murnford’s Reports, Vol. IV: 58.

35 Ibid., 58-59.

36 Wheaton’s Reports (Supreme Court of the United States), Vol. I: 304-382.

37 Ibid., 324.