HISTORY OF THE SUPREME COURT
OF THE UNITED STATES

CHAPTER XI

THE SUPREME COURT UNDER CHIEF
JUSTICE TANEY (CONTINUED)



During the range of years covered by the latter part of the preceding chapter, the course of the Supreme Court of the United States was signalized by two other distinct lines of action, as standing out conspicuously in its mass of decisions :

1.  The validation of private claims to millions of acres of the most valuable lands in California.  Of the 8,150,143 acres of these lands obtained by individuals under the form of private land claims, a great part was presented by decisions of the Supreme Court under Chief Justice Taney.

2.  The issuance of the edict, in the Dred Scott case, that all laws interfering with the slavery of negroes were unconstitutional and void, and that the negro was devoid of any civil rights which the white man was bound to respect.

With each of these events we shall deal in consecutive, although not strictly chronological, order.  Before doing so, however, it is necessary to describe a certain change in the personnel of the Supreme Court, and the important transition it signified.


Justice Curtis Ascends to the Bench.

Justice Levi Woodbury had died in 1851.  His successor, appointed by President Fillmore, in 1851, was Benjamin R. Curtis, of Boston.  At the time of his appointment Curtis was only forty-two years old.  Compared to the ages of nearly all of the other Justices when commissioned to the Supreme Court bench, Curtis was remarkably young.  To what merit or factor did he owe his appointment ?

His elevation to the Supreme Court was an event of the greatest significance, although its fundamental importance was not then clearly seen.

For more than half a century the appointees to the Supreme Court had been either owners of landed estates or attorneys for land claims and schemes,— men almost invariably combining in their persons, views and interests the representation of the land-owning class.  But within a few decades, great economic changes had taken place.  Two new and mighty factors had gradually asserted themselves.  The first of these was the manufacturing interest ;  the second, the railroad power.  The latter, at the time of Curtis’ appointment, was in its infancy, but, nevertheless, it had already become powerful enough to insist that it have its representative on the Supreme Court bench.  The power of the railroad corporation, however, was not then a distinct one, as it subsequently became under the dominance of such dictatorial rulers as Commodore Vanderbilt, Jay Gould, Russell Sage, Collis P. Huntington, Leland Stanford and their kindred potentates.1  At that era landed, banking, manufacturing and railroad interests were more or less interassociated ;  the promoters and directors of many of the original railroads were men who had made their profits from land speculations, manufacturing, trading, commerce and banking.  The time was still somewhat distant when forceful, arbitrary, super-unscrupulous men such as Vanderbilt and Gould seized great lines of railroad systems, originally owned by a medley of interests, and concentrated their control in themselves.

Curtis’ appointment, therefore, was an exact reflex of conditions at the time of his selection.  He had studied law at Harvard under Justice Story, who was a lecturer at that University.  From 1836 to 1851 Curtis, as an attorney, had represented a great number of commercial firms, insurance companies, shippers, banks, manufacturing corporations and canal and railroad companies.  Specifically, he had been attorney for the Oriental Bank and the Tremont Bank, of Boston, and for other banks ;2 he had represented the Western Railroad corporation,3 the Boston and Maine Railroad,4 the Boston and Providence Railroad corporation,5 the Boston Manufacturing Company and a variety of other corporations.  In the biography of Curtis, edited by his son, we are told that his income had been as large as that of any other lawyer in New England, and that in 1851 — the year of his appointment to the Supreme Court — he had bought a valuable estate of three hundred acres at Pittsfield, Massachusetts, where he built a splendid mansion.

In the same work we are also informed that Curtis’ appointment was recommended to President Fillmore by Daniel Webster, then Secretary of State.6  Although having a large private income from his corporation practice, Webster’s habits were such that he was generally in an impecunious state.  Periodically, the Lawrences and other cotton manufacturers would come to his relief ;  he seems to have been regularly subsidized by them.  “ On several occasions,” says Ben Perley Poore, referring to Abbot Lawrence, “ a large cotton lord,” and a principal owner of the great Fall River Mills, “ he had been one of ‘ the solid men of Boston,’ who had contributed considerable sums for the pecuniary relief of Mr. Webster.”7

These donations were gratefully received by Webster.


Working-Class Conditions.

The period was one of astonishing activity on the part of the working class, and issues were constantly arising which employers looked to the courts to settle.  The attempt to have the strike declared by the courts illegal and a conspiracy had failed, but the demand for a shorter workday was bitterly resisted.  The owners of the cotton mills were amassing immense fortunes ;  as fast as more improved labor-saving machinery was installed, production was increased and wages were reduced.  A large proportion of the employés in the Lowell mills were women and children.

In the Voice of Industry, a labor paper published at Fitchburg, Massachusetts, in 1845, a typical instance of conditions is given in the statement of a frail girl of eight or nine years old :  “ I go to work before daylight in the morning and never leave it until it is dark, and don’t make enough to support mother and baby.”  Referring to the increase of two hundred per cent. in the cotton-mill dividends in a single year, and the corresponding decrease of twelve and a half per cent. in the wages of women and children, the Voice of Industry said :

“ In this state of things the bounty offered to manufacturers by the tariff induced many of the wealthy men of New England to invest their capital in manufactures, which, when the tariff has been high, proved exceedingly profitable, concentrating great wealth in the hands of a few, whilst the laboring part of the community has increased rapidly, until the demand for employment exceeds the want of the employers, which has enabled them to reduce the wages of the operatives whilst their own profits were very largely increased, and this reduction of wages must continue to go on with the increase of the class of society who depend upon employment for subsistence, until they arrive at a point which will barely afford such necessities as will enable the human system to undergo its daily toil.”

One organization after another was formed either by the workers themselves, or by humanitarian sympathizers.  “ The dollar,” stated the New England Protective Union, in 1845, “ was to us of minor importance ;  humanitary and not mercenary were our motives.”  And it went on :  “ Man’s muscles are now made to compete with iron machines that need no rest, that have no affections, that eat no bread.  Why is he that produces everything not only destitute of the luxuries but of the common comforts of life, to say nothing of a shelter he may call his own ? ”  As to the conditions of the workers, the Union said that, “ Lamentable as is the condition of the laboring men, that of the women is worse and increasingly so.”  The early development of the coöperative idea is seen in its declaration, “ We must proceed from combined stores to combined shops, from combined shops to combined houses, to joint ownership in God’s earth, the foundation that our edifice must stand upon.”  These lofty aspirations were accompanied by a strong denunciation of the fugitive slave law “ as an infamous act, fitted to be trampled under the foot of every lover of justice and liberty.”

The New England Workingmen’s Association was formed at the same time to combat prevalent conditions of society under the arrangements of which “ labor is and must be the slave of wealth,” and “ the producers of all wealth are deprived, not merely of its enjoyment, but also of the social and civil rights which belong to humanity and the race.”  Everywhere the workers were rising, and as fast as they formed organizations, the employing capitalists sought to intimidate them and disrupt their organizations by discharging the leaders from work, and reducing them to beggary.

A call for a Workingmen’s Meeting in New York, on July 16, 1845, stated that there were 65,000 paupers in New York City alone, and that one-sixth of the entire population was in a condition of pauperism ;  that the white labor of the North was in a worse state than the slave of the South.  A demand of Pittsburg and Alleghany City cotton-mill workers on June 16, 1845, for a ten-hour, instead of a twelve-hour, workday, was met with the reply that the adoption of such a system was impracticable so long as the Eastern factories ran seventy-two hours a week.

The first Industrial Congress of the United States convened at New York, on October 12, 1845.  It declared that “ it is a well-known fact that rich men, capitalists and non-producers associate to devise means for securing to themselves the fruits of other men’s labors”;  therefore, farmers, mechanics and workingmen ought to organize.  The preamble also declared that further traffic in land by the Government should cease, and that the public lands should be made free to actual settlers, so that every man, woman and child in the nation should have a home.  It denounced the existing system of factory labor, as withering life’s energies, even in childhood, causing physical deformity because of excessive toil, and depriving workers of the opportunity to acquire cultivation, and at the same time, producing deterioration of both mind and body.

In 1845 and 1846 great meetings of the workers in Lowell, Chicopee, Manchester, New York City and Philadelphia demanded a ten-hour day.  In these agitations girls and women were as aggressive as the men.  To supply the places of these agitators the Chicopee mill owners resorted to this device :  They sent a long black wagon to make regular trips in Massachusetts, Vermont and New Hampshire, paying the man in charge a dollar a head (or more according to distance traveled) for every girl he secured.  Farm girls, it was charged, were thus enticed on the representations that the work “ was very neat, wages high, and that they could dress in silks and spend half the time in reading.”


Land Grabbing and Negro Slavery Denounced.


The Laborers’ Union memoralized Congress to put an end to the traffic in the public lands.  “ This system,” it protested, “ is imported into this country from Europe, and is fast debasing us to the condition of dependent tenants, of which condition a rapid increase of inequality, misery, pauperism, vice and crime are necessary consequences. . . .”  In 1846, the New England Workingmen’s Convention, at Lynn, Mass., declared that “ there are at the present time three millions of our brethren and sisters groaning in chains on the Southern plantations . . . ,” and called upon “ our brethren to speak out in thunder tones, both as associations and individuals, and to let it no longer be said that Northern laborers, while they are contending for their rights, are a standing army to keep three millions of their brethren and sisters in bondage at the point of the bayonet.”

These are a few of a large assemblage of facts showing the unrest and agitation among the workers at the time, and their spirit, views and purposes.  Year after year the movement grew ;  strike succeeded strike ;  the ten-hour day was finally won after heroic struggles in which starvation was a commonplace.  But for the great contest for the emancipation of the negro slaves, which soon overshadowed, and partially absorbed, the labor agitation in the North, the movement would have gone much further, despite every repressive measure that the capitalists used.  But it was already formidable enough, and employers generally foresaw that it contained potentialities certain to produce great conflict in future times.  Even then they perceived that it was necessary for them to mold the courts in such a shape that the activity and actions of the workers would be more and more restricted by judicial constructions, orders and usurpations.

Justice Curtis’ habit of frank letter-writing gives us some insight into the methods of the Supreme Court of the United States.  Writing from Washington, February 29, 1852, Justice Curtis informed Ticknor :  “ Judge Catron will give the opinion of the court in Mrs. Gaines’ case to-morrow.  In this opinion I unite with Nelson and Grier.  Wayne and Daniel dissent, on account of an interest, in some way, which some of their relatives have. . . .”8

One of the traditions of the Supreme Court, constantly repeated for the edification of the public, was that the strictest precautions were taken to guard against advance information of decisions being given out.  Here, however, was one of the Justices conveying information of precisely that character.  Quite true, Curtis was writing to one whom he regarded as a confidant, but, as we shall see, the same leakage happened in the Dred Scott case.  This being so in at least two known instances, it is within the bounds of possibility that it took place in other decisions, possibly affecting stock-market operations, in which advance information, of only a day’s notice, could be transmuted into fortunes.

In the same letter, Curtis described Justices McLean and Wayne as the “most high-toned Federalists on the bench.”  Elsewhere he noted that McLean hoped to be a candidate for the President of the United States.9  He thus confirmed what was often publicly charged — that more than one member of the Supreme Court was incessantly playing politics, and seeking to ingratiate himself into the favor of every powerful interest which could be used in advancing political ambitions.  This was especially and notoriously true of McLean, who, having the good-will of the capitalists of his own region, sought also that of the slave-owning power.


Curtis as a Corporation Attorney.


In view of the fact that decisions validating claims of enormous magnitude in Texas, California and other sections in favor of individuals and corporations were handed down by the Supreme Court of the United States largely during the time Curtis was on the bench, from 1851 to 1857, his subsequent career may be appropriately commented upon here.  He was one of the few justices, in good or bad health, who ever resigned from the Supreme Court ;  his son tells us that from the date of his resignation in 1857, to his death in 1874, he gathered in about $650,000 from professional services,10— a sum equal in value to many times that amount in present days.  After he had resumed the practice of law, he represented a large galaxy of corporations, some of which were the identical corporations issues affecting which had been decided by the Supreme Court.  He represented the Boston and Maine Railroad, the Fitchburg Railroad, the Grand Junction Railroad and Depot Company, the Eastern Railroad Company, the Adams Express Company, the Galveston Railroad Company, James Lawrence of the Middlesex Mills, the Boston Water Power Company, the Boston Gas Light Company, the Hudson Iron Company and many other corporations.11  Frequently he also appeared for stockholders and other capitalists in suits against corporations, and on several occasions was retained by the United States to contest land claims.  Wherever a large fee was to be had, there Curtis was to be found, no matter what the nature of the case was, or whoever his client.  Beyond doubt, he was one of the most frequently employed and best-paid corporation attorneys of his day ;  few lawyers represented so wide a variety of corporate interests.


Organized Forgery in California.


The Mexican War resulted in the cession to the United States, in 1848, of the present States of California, Nevada, Utah, part of Colorado, and the whole of the Territories of Arizona and New Mexico, except the Messilla Valley.  This domain comprised 334,000,000 acres.

In anticipation of this cession, the same process of forging and antedating land claims which had proved so generally and signally successful in the Louisiana Purchase, and in Florida and Texas, was industriously carried on in California and in other parts of the Mexican cession.

Reporting to Congress in 1860, United States Attorney-General Black described how he had ordered the Mexican archives to be collected, and he set forth the details of that investigation.  “ The archives thus collected,” he wrote, “ furnished irresistible proof that there had been an organized system of fabricating land titles carried on for a long time in California by Mexican officials ;  that forgery and perjury had been reduced to a regular occupation ;  that the making of false grants, with the subornation of false witnesses to prove them, had become a trade and a business. . . . There was also compiled from the records here a faithful chart of all of the professional witnesses or persons supposed to have hired themselves out to do the business of false swearing of claims.  To-day full biographies of nearly all of the men who have been engaged in these schemes of imposture, from governors down to the lowest suborned witnesses, can now be furnished whenever necessary.”

Black went on to say :  “ It must be remembered that the grants in most of these fraudulent cases were very skilfully got up, and were supported by the positive oaths, not merely of obscure men whose characters were presumed to be fair, but also by the testimony of distinguished men, who had occupied high social and political places under the former governors. . . . The value of the lands claimed under grants ascertained to be forged is $150,000,000.”12

But already, under a certain noted decision of the Supreme Court of the United States, immense areas of the richest agricultural, grazing, timber, water-front, mining and city lands in California had been presented to a few capitalists.

Following the discovery of gold in California, there was hardly a politician at Washington who was not engaged, directly or indirectly, in pushing land claims ;  with vast riches in sight, a feverish scramble set in to have a hand in the spoils.  This activity became so pronounced and caused so much scandal, that to mollify indignant constituencies, Congress in 1853 passed a pretentious act, which, however remained a dead letter.  The act forbade, under penalties, any Government official from acting as agent or attorney in prosecuting claims, or from receiving any gratuity or interest in them.  It forbade members of Congress, under a penalty of fine and imprisonment, from doing the same, and it subjected any person who attempted to bribe a member of Congress to fine and imprisonment, and the acceptor of the bribe to forfeiture of his office.


Importance of the Fremont Case.


The particular case decided by the Supreme Court of the United States serving as the great precedent in allowing land grabbers to appropriate millions of acres in California and elsewhere was that of Fremont vs. the United States.  Fremont turned up with a claim for a “floating grant” for ten square leagues (44,386.33) acres, which he averred had been granted by the Mexican Acting-Governor Micheltorena, in 1844, to Juan B. Alvardo, from whom Fremont claimed to have bought it.  By “floating grant” was meant one with boundaries not described, but with power to locate anywhere.  If this grant were confirmed, Fremont and all others claiming to hold similar grants could select the finest lands wherever they chose.

The Government stubbornly contested Fremont’s claim, contending that it was a mere paper title or grant, and that the conditions of settlement called for had never been carried out.  Fremont advanced the old, mildewed excuse that Indian hostilities had prevented settlement.  Accepting this excuse, on precedents heretofore cited, the Supreme Court of the United States, in December, 1854, confirmed Fremont’s grant as valid.13

Chief Justice Taney, in delivering the majority opinion, cited particularly the Arredondo decision, and held that when made, the grant imparted a vested right, even though it had not been confirmed by the Mexican Departmental Assembly, as the law required.

Dissenting, Justices Catron and Campbell strongly denounced the claim as one that had no standing and that absolutely lacked both merit and equity.  They pointed out that not a single condition of the grant had been performed ;  that it was admitted that the Mexican Government never would have confirmed the claim ;  and declared that “ no bolder case than the one before us can exist in California, where the grant is not infected with fraud or forgery.”14

General John C. Fremont, the beneficiary of this decision, had taken part in the conquest of California, and was United States Senator from California in 1850-1851.  He was the Republican candidate for the Presidency in 1856.  When he commanded the Western department of the Federal army, at St. Louis, during the Civil War, in 1861, the greatest frauds were committed at that post in the purchase of munitions and supplies.  One particularly glaring example of these great frauds was that famous sale of condemned rifles (described in Vol. III of the “ History of the Great American Fortunes,” citing from the records).  Five thousand of Hall’s carbines, condemned by the army officers as being so bad that they would shoot off the thumbs of the soldiers who used them, were sold to Arthur M. Eastman for $3.50 each, and then resold to Fremont, for use in the army, at $22.  The real backer of this transaction was that great financial magnate of later days — J. Pierpont Morgan.  When the Government found out the spurious nature of the rifles and refused to pay the full sum, Morgan brought suit.  Under a later decision of the Court of Claims the Government was forced to pay in full, the court holding to the technicality that a contract was a contract.  These facts tend to illumine the character of Fremont’s dealings, and are well worth referring to in this description of the Fremont claim decision of 1854.


Land Claims Validated Under the Fremont Precedent.


Under this decision, the United States District Court in California was compelled to confirm a great number of similar claims.  In thus confirming, in June 1856, Francisco Rico’s claim to eleven square leagues in Stanislaus County, Judge Hoffman clearly expressed his suspicions of the genuineness of the grant, but found himself forced to confirm it under the precedent in the Fremont case.15  Likewise in accordance with the precedent in the Fremont case, Judge Hoffman could not avoid confirming other grants, many of which had been rejected by the Board of Land Commissioners.  Among the claims confirmed under the Fremont ruling were :

Charles D. Semple’s claim to eleven square leagues of land on the Sacramento River.16

Thomas O. Larkin’s claim to eleven leagues of land on the west bank of the Sacramento River.17

George C. Yount’s claim to one league of land in Napa County.18

Josefa Soto’s claim to ten square leagues of land in Colusa County.19

Hiram Grimes’ claim to eight leagues of land in San Joaquin County.20

Juan Perez Pachecho’s claim to eleven leagues of land in Mariposa County.21

Andreas Pico’s claim (one of a number of his claims) to eleven square leagues of land in Calaveras County.22

Charles M. Weber’s claim to eleven leagues of land in San Joaquin County.23

The claim of the heirs of Anastasio Chabolla to eight leagues of land in San Joaquin County.24

Antonio Maria Pico’s claim to eight leagues of land in the same county.25

James Noe’s claim to five leagues of land in Yolo County.26

Sebastian Nunez’s claim to six leagues of land in Tuolumne County.27

And other claims of the same character.  The claims above mentioned comprised more than 550,000 acres of the richest lands in California.

In confirming these grants, Judge Hoffman made severe comments and more than implied that if he were not confronted with the ruling of the Supreme Court of the United States, in the Fremont case, he would have rejected most of them.  In his decision on the Pico eleven-league claim he expressed his suspicions of the authenticity of the grant, and in the Nunez case he spoke of the strange testimony of the witnesses as suspiciously like perjury.  The Mexican laws, Judge Hoffman said, imposed strict conditions upon all grants.  Although in the cases of many of the grants no settlement had been made, and although the excuse advanced of Indian hostilities preventing settlement was not satisfactorily shown, yet he was compelled to confirm the claims.  He could not, he said, contravene the ruling of the Supreme Court in the Fremont case.


Systematic Forgery and Perjury.


Many of the foregoing grants, real or alleged, bore the signature of Pio Pico, Mexican Acting Governor of California, in 1846.  No doubt Pico’s signature was genuine in some cases, for when it was evident that Mexican authority was to be supplanted by that of the United States, Pico industriously began to issue fraudulent grants in return (as the court records indicate) for bribes.  A large number of the grants bearing his signature were made, or were said to have been made, in a single month — May, 1846 — two months before the Mexican authority in California was overthrown.  In the case of other grants, his signature and the signatures of other Mexican governors were forged, and the alleged grants antedated.  Acting-Governor Pio Pico’s Secretary was Moreno ;  of Moreno and his associates, the House Committee on Claims reported, on February 24, 1869 :

“. . . Gomez, Abrego and Moreno are suitable associates.  They are equally notorious for the forgeries and perjuries in which they have been concerned.  Gomez and Abrego were the chief instruments in the false swearing in the great Limantour swindle that attracted so much public attention some years ago.  Ex-Secretary Stanton visited California in 1858 in behalf of the United States in connection with land cases, and then found that Abrego had been a witness to support thirty-two, and Gomez, twelve, claims, most of which were ascertained to be frauds or forgeries.”28

In rejecting many claims which, because they lacked certain features bringing them within the scope of the Fremont ruling, could be thrown out, Judge Hoffman referred to the perjuries committed by Gomez.  Hoffman rejected Joseph C. Palmer’s claim to two leagues of land in San Francisco County, saying that “ the suspicion that it has been fabricated since the change of Government is irresistibly suggested.  That such has been the case, in some instances, is notorious.  That such a fraud was easy while the former governors of this country [California] were alive and accessible, is obvious.”  Judge Hoffman further wrote of “ the notorious facility with which testimony like that in support of this claim can be procured.”29

Although many of these and other claims were nominally in the names of Mexicans, they were really owned or promoted by American politicians and capitalists.  While Judge Hoffman, at San Francisco, was denouncing and exposing the organized system of fraud and forgery, the Supreme Court of the United States was busily engaged in both rejecting and confirming land claims of vast magnitude.  The claims rejected by it had not only been awkwardly prepared, but their obvious circumstances were left in so crude and clumsy a shape that no court in the wide world could have exposed itself to ridicule by professing to accept the pleas made.

Juan M. Luco and Jose L. Luco came forward with what purported to be a grant from Acting-Governor Pio Pico for from thirty to fifty square leagues, or some 270,000 acres, in California.  Judge Hoffman sarcastically commented upon the fact that during the years when they were supposed to hold this extensive and valuable claim, one of them was living upon the alms of a rich friend, or mending clothes for a livelihood.  Why, too, he inquired, had they allowed so many years to elapse before they bethought themselves of the necessity of getting the grant confirmed ?  Judge Hoffman threw the grant out of court as forged and antedated.30  The Supreme Court of the United States likewise found the purported circumstances too much of a strain upon its credulity.  It dismissed the claim as “beyond doubt a mere fabrication,” and declared the documents forgeries.31

Eleven square leagues on the upper waters of the Sacramento River was Henry Cambuston’s claim, purported to be derived from a grant made by Pio Pico, in May, 1846.  Attorney-General Black denounced it as a forgery.  “ In the examination of the evidence in this case,” wrote Justice Nelson, in delivering the opinion of the Supreme Court of the United States, in December, 1857, “ it is difficult to resist a suspicion as to the bona-fides of the grant in question.”  He added significantly :  “ The court below appears to have been very much impressed with the unsatisfactory character of the evidence, and with doubts as to the genuineness of the title, and seems to have yielded rather to the apparent acquiescence of the representatives of the Government, in the decisions of the Commissioners, than to any settled convictions of its own judgment.”  The Supreme Court pronounced the claim invalid.32  The claim of James R. Bolton to fully 10,000 acres of land in the vicinity of San Francisco — a claim valued (at a low estimate) at more than $2,000,000 in the year 1851 — was also declared worthless by the Supreme Court of the United States.  Bolton averred that Pio Pico had given the grant to Santillan, a priest, from whom he had bought it.33

Rafael Garcia claimed nine leagues of land on an alleged grant by Micheltorena.  Attorney-General Black pointed out that there was no trace in the official archives of the papers produced.  “ The proof,” he continued, “ would be defective, if the witnesses were men of good character ;  but the testimony comes from William A. Richardson and Manuel Castro, both of whom have been made utterly infamous by being detected in the commission of wilful and corrupt perjuries. . . . The seal affixed to Micheltorena’s letter is a manifest forgery.”  The Supreme Court reversed Judge McAllister’s decision in the United States court in California, and voided the claim.34

Also it cast out the claim of the executors and heirs of Augustin De Yturbide, involving an alleged grant of twenty leagues square of land equal to four hundred square leagues.  This claim was based upon a grant alleged to have been made by the Mexican Government in 1822, to President Yturbide for “ services.”  The Supreme Court rejected it on the technical ground that the claimants had not filed their appeal in the prescribed time.35

Teschmaker, George H. Howard and others placidly came forward with a claim to sixteen square leagues of land in Napa County, as having been granted to the Vallejo brothers, in 1838, by their brother M.G. Vallejo, “ commandante general.”  The complicity of United States government officials was shown by the fact that George H. Howard, one of the claimants to this grant, had been the Government law agent before the United States Board of Land Commissioners, the duty of which was to pass upon land claims.  This fact of Howard’s complicity in allowing claims to pass unchallenged was again shown, twenty years later — in 1878 — in the case of the Throckmorton claim in which claim Howard was also interested together with the notorious perjurer, W.A. Richardson, and others.36  The attempt to get a validation of the Vallejo claim was unsuccessful ;  Attorney-General Stanton proved to the satisfaction of the Supreme Court that the Vallejos, Juan Castenada and other witnesses were professional perjurers.37  The Supreme Court rejected this particular claim,38 but two decades later, as we shall see, the Supreme Court validated the notorious Throckmorton claim.

After Attorney-General Stanton had exposed the forgeries and perjuries of the witnesses in the case of the Fuentes claim to eleven leagues near San Jose, the Supreme Court of the United States rejected the claim.  “. . . No court in California, where Manuel Castro’s achievements are known,” Attorney-General Stanton said, “would pronounce a judgment upon his testimony.  Abrego was incontestibly proved to be guilty of forgery in the Limantour case, and the fact was so announced by the court. . . . It is not at all difficult to see how and when this grant was fabricated.  It is the handwriting of Manuel Castro, a part of whose business consisted in forging land grants. . . .”39


The Great Limantour Frauds.


The “ Limantour swindle,” to which frequent reference has been made, was the audacious promotion of eight claims by Jose Y. Limantour.  On six of these alleged grants he claimed not less than one hundred and thirty-four square leagues (924.34 square miles) or 594,783.38 square acres.

His claims were based upon alleged grants by Micheltorena “ for advances in money and goods ” to the Mexican Government, Department of California.  But he, or rather those behind him, overreached themselves.  They claimed under those six alleged grants not only vast tracts of agricultural, grazing, timber and mineral lands but they also presented two other claims to at least three-fourths of the city of San Francisco, of a then assessed value of $15,000,000, with its wharves, street markets, etc.  Limantour also claimed islands in the harbor on which the United States Government had spent great sums in erecting lighthouses, coast defenses, buildings and other works.  Parts of the Limantour claims were rejected by the Board of Land Commissioners, but the claims to four square leagues in San Francisco and to the harbor islands were confirmed.

The consequence was that a powerful combination including the owners of real estate in San Francisco, the City of San Francisco, corporations such as the Pacific Mail Steamship Company and the United States Government set to work relentlessly to expose and defeat the conspirators.  Neither money nor energy was spared.  The Government uncovered enough evidence to ask for a reopening of the case and to prove to the complete satisfaction of the court that the grants had been forged.40

In June, 1858, Judge Hoffman, in the U.S. District Court at San Francisco declared all the claims spurious, and voided them.41  Judge Hoffman declared that “ the proofs of fraud are as conclusive and irresistible as the attempted fraud itself has been flagrant and audacious.”

Limantour was twice indicted, and was held in $35,000 bail.  Pending trial, he and his witnesses, in 1858, fled to Mexico, and never returned to California42 — an absence very satisfactory to certain other land claimants of the origin of whose alleged grants he and his confederates knew too much.  Those claimants, it was believed, facilitated his flight, took care that he did not return, and breathed easier in pushing their claims with Limantour and his forging and perjuring crew at a safe distance.

As a matter of fact, however, many of the owners of San Francisco property who were intent upon proving the Limantour claims fraudulent, had themselves acquired their valuable city land by fraud.  The case of Field vs. Seabury et al. revealed how, in 1848, the Common Council of San Francisco began fraudulently and corruptly disposing of municipal land to themselves, or to their accomplices, and how Alcalde or Mayor Leavenworth received his large share.43  Leavenworth, for example, in 1848 granted an extensive plot at Washington and Clay Streets to William C. Parker who then deeded it back to Leavenworth ;  one-half of this plot brought $75,000 in 1858.

We have given some examples of claims rejected by the Supreme Court of the United States.  One reason for their lack of success was, as we have noted, the bungling, amateurish manner in which the evidence was presented.  But this frequently was only an extrinsic reason.  Whenever claims held by comparatively uninfluential persons conflicted with the claims or designs of powerful corporations, puissant personages, or of municipalities, the whole force of Government was energetically and earnestly set at work contesting the objectionable claims.  The Government, it is true, fought many claims with seeming impartiality, but in numerous cases its contest was only nominal, and often bore signs of being a feigned activity for the purpose of allowing the high tribunal at Washington to validate certain secretly-favored claims.  That the weight of testimony was not the only factor influencing the decisions of the Supreme Court of the United States was shown, for instance, in the claim of Juan Jose Gonzales to a tract of one league in length and three-quarters of a league in breadth, alleged to be based on a grant given by the Mexican Governor Figueroa, in 1833.  Although there was only one witness to prove the genuineness of the title, the Supreme Court of the United States declared it valid.44


Corruption of Officials.


There were few of the United States officials in California who were not financially interested in the promotion of fraudulent land grants.  In 1853, for instance, Vincente Gomez applied, through his attorney, Pacificus Ord, for confirmation of an alleged grant of four square leagues.  The Board of Land Commissioners rejected the claim.  Gomez then appealed to the United States District Court, in San Francisco.  Who was the United States District Attorney there ?  None other than Pacificus Ord.  Upon Ord’s representation that the claim was a valid one, the court confirmed it.  In 1859 Attorney-General Black presented the proof to the United States Supreme Court that Gomez had previously conveyed one-half of the tract to Ord, when Ord was United States District Attorney.  Thereupon, the Supreme Court of the United States reversed the lower court, and voided the claim.45

To such a scandalous extent, also, were district judges interested in cases of land grants pending before them, and so many scandals arose, that Congress found it necessary, in 1864, to pass an act requiring district judges to transfer all cases of land claims in which they were interested to the United States Circuit Court which was to have jurisdiction.46


The Reading Claim Confirmed.


Of the many extensive land claims confirmed by the Supreme Court of the United States, only a few will be described here.  One of such claims was that of Pearson B. Reading for six square leagues on the Sacramento River.  Lewis Cass, in the United States Senate, was one of the principal pushers of this claim.  Reading was an American citizen who went to California in 1842 and professed Mexican citizenship ;  he claimed that Micheltorena gave him the grant in 1844.  When the Mexican War broke out, he joined the United States troops.  The Government hotly contested his claim, urging that the grant had never received the approval of the Departmental Assembly, and that under the laws of Mexico, Reading could not hold such a grant, doubly so because he had been treacherous to the country from which he claimed his grant.

The majority of the Supreme Court of the United States, however, in 1855, confirmed his claim, upon two main precedents — one precedent that of the decision of Chief Justice Marshall in the case of Taylor vs. Brown (in 1809), the other precedent the decision in the Fremont case.  Justice Wayne, in writing the court’s opinion, said that while it was true that a title did not become definitive until it had received the approval of the Departmental Assembly, yet an immediate vested interest had passed to the grantee.  If the approval of the Departmental Assembly had not been obtained, that was the Mexican governor’s fault, not Reading’s.  That Reading became a rebel against Mexico, the decision further read, furnished no reason for forfeiture.

Justice Daniel strongly dissented.  Reading, he said, “can have no rights to the claim from or through the Mexican government to which he became an open enemy.  By his conduct he completely abrogated every such right, and became, as respects that government, punishable as a State criminal ;  and thus not only failed to obtain that sanction without which his title was defective, namely, the approbation of the Departmental Assembly of Mexico, but, by his own voluntary conduct, rendered its procurement, upon every principle of public law, public or political necessity, or of private morality, altogether impossible.”47


Other Claims Validated.


At the same time, December, 1855, the majority of the Supreme Court of the United States confirmed many other claims.  Maria de Arguello and associates claimed twelve square leagues of land bordering four leagues on the Bay of San Francisco and extending back to the mountains.  Now, as we have seen, the Mexican laws prohibited the granting of sea-coast territory.  In allowing Arguello, etc., four leagues, the majority of the Supreme Court (Wayne writing the opinion) circumvented that point by saying that they did not believe the Mexican Government’s policy had been to confine native citizens to the interior, and that it did not mean prohibition of grants of land to native citizens for their own use !  Justice Daniel also denounced this decision in severe terms extending beyond the usual judicial restraint.48

In the same month the Supreme Court confirmed the Vaca and Pena claim to a large tract of land on the Sacramento River, and the Larkin-Misroon claim to a tract eleven leagues long and a league wide on the same river.  These were alleged grants by Micheltorena ;  the Government especially denounced the Larkin-Misroon claim as spurious.  This alleged grant was purported to have been given, in 1844, to Manuel Jimeno, Secretary of the Mexican Government in California and conveyed to Larkin (then American Consul at Monterey) and Misroon.

Concurring with Justice Daniel in a dissenting opinion Justice Campbell vehemently denounced the Larkin claim.  “. . . The evidence,” he wrote, “ satisfies me that this claim was fabricated after the difficulties between the United States and Mexico had occurred, with a view to enable the American consul at Monterey to profit from it, in the event of the cession of the country to the United States.  I lay no stress upon the fact that the papers are found in the archives.  I presume,”— Campbell, added with sardonic significance,—“ Jimeno was the keeper of those archives.”49  Justice Campbell further showed that neither Jimeno nor Larkin had ever entered upon the land, or occupied it.


Justice Daniel’s Scathing Opinion.


Making his dissenting opinion cover the Arguello, Vaca-Pena and Larkin-Misroon decisions, Justice Daniel wrote an uncommonly biting opinion, denouncing those decisions as subversive of justice and public policy because of their “inciting and pampering a corrupt and grasping spirit of speculation and monopoly.”  He pointedly went on to say :  “. . . And it will very probably be developed in the progress of the struggle or scramble for monopoly of the public domain, that many of the witnesses upon whose testimony the novel and sturdy Mexican code of practise or seizure is to be established, in abrogation of the written law, are directly or immediately interested in the success of a monopoly by which, under the countenance of this court, principalities are won by an affidavit, and conferred upon the unscrupulous few, to the exclusion and detriment of the many, and by the sacrifice of the sovereign right of the United States. . . .”

Justice Daniel then proceeded to describe the time and circumstances “ under which these enormous pretensions have originated ”;  how in Mexico the period had been one of incessant agitation, disorder and revolution, men seizing upon power in rapid succession, and either looting or becoming the instruments of looters.  All the alleged grants, he said, were deficient in the requisites indispensable to impart validity.  Yet they had been boldly presented for confirmation.  They had originated “ in practical and temporary usurpations of power ;  and that, amidst scenes of violence and disorder. . . .”  Notwithstanding the avowed character of those alleged grants, “ which ought to consign them to the sternest reprobation,” those, said Justice Daniel disgustedly, were the circumstances constituting “ the merits by which they commend themselves to the countenance and support of a tribunal whose highest function is the assertion of law, justice, integrity, order — the dispensation of right equally to all.”  Concluding, Justice Daniel said that he could conceive of no claim whatsoever to extending favors to “ the grasping and unscrupulous speculator and monopolist, and thus excluding the honest settler and retarding the population of new States.”50


The Validating Process Continues.


Never had so caustic and telling an excoriation of the Supreme Court been made by one of its own members.  If the majority winced, they gave no sign.  As though vindicating themselves, and proving their consistency, they went on confirming other notorious claims.

In December, 1856, they confirmed the large and rich Peralta claim of five leagues, running south from the Bay of San Francisco over the town of Oakland, and east to the mountains.  This was a grant alleged to have been made in 1820, and renewed by Micheltorena, in 1844.51  The Pedrorena claim to eleven sitios (equal to eleven leagues) in San Diego County was confirmed in the same month ;  this claim was based upon an alleged grant made by Pio Pico in 1845.52

The Castillero claim was validated by the Supreme Court in 1858.  It was a claim embracing a large tract of land near Santa Clara, but in particular its value lay in the fact that it included the “New Alanladen ” quicksilver mine then producing at least $1,000,000 returns a year, and valued in total at $25,000,000.  The Castillero alleged grant had become the property of American and foreign capitalists.  One of their counsel was Hall McAllister, the regular attorney for the Pacific Mail Steamship Company.  This company had consecutively, from 1847, bribed Congress to get a large annual mail subsidy ; 53 in the year 1872 alone, so an investigating committee of Congress later reported, it expended nearly $1,000,000 in bribes to get an act passed by Congress giving it an additional mail subsidy of $500,000 a year for ten years.54  The Government charged that the papers in the Castillero claim were forged and antedated, but the Supreme Court held that the certified codes of the originals were genuine.  The Supreme Court chiefly depended in its decision upon the fact that one of the former Mexican governors, Alvarado, who was alleged to have made the grant, testified that the signature was his.55  But the notorious fact that Alvarado was a corrupt political adventurer, who had his price, and a cheap one at that, was ignored.

Much of the nearly nine million acres in California obtained on private land claims were secured in these years by grace of decisions of the Supreme Court of the United States.  Year after year the Supreme Court continued validating claims the character of which did not differ from that of the claims specifically described here.  Of the whole number confirmed by the Supreme Court during a period of about fifty years, beginning in 1854, several score were validated when Taney was Chief Justice.

The same acidulous differences and dissensions among the members of the Supreme Court evidenced in the private landclaim cases were evidenced in other cases.  To the tradition carefully inculcated in the great mass of people that the decisions of the Supreme Court should be treated with unabated respect, dissenting members of the court did not themselves subscribe.  From no critic did sharper denunciations and reproaches proceed than from the court’s own members.


Justice Campbell Denounces a Decision.


An unprecedented case was decided by the Supreme Court, in December, 1855.  The State of Ohio had passed an act taxing banks ;  thereupon the novel sight was presented of an incorporator, in the case of Dodge vs. Woolsey, suing the corporation of which he was a member, with the object of having the act declared unconstitutional.  When the majority of the Supreme Court declared the act unconstitutional because it impaired the obligation of a contract, Justices Catron, Daniel and Campbell dissented.  Justice Campbell’s dissenting opinion was both remarkable and severe ;  remarkable in that it developed, in essence, at least, even at that early day, the now accepted theory and fact of dominant interests and class struggles.

Comparing certain conditions in Ohio with those in Turkey, Justice Campbell said :  “. . . In that empire, the ecclesiastical and judicial is the dominant interest, for the ulemas are both priests and lawyers, just as the corporate money interest is dominant in Ohio, and in either country that interest claims exemption from the usual burdens and ordinary legislation of the State.”  He then asked that if a State were to become “ the victim of vicious legislation, its property alienated, its powers of taxation renounced in favor of chartered associations, and the resources of the body politic cut off, what remedy have the people against the misgovernment ? ”  He answered :  “ Under the doctrines of this court none is to be found in the Government, and none exists in the inherent powers of the people, if the wrong has taken the form of a contract.  The most deliberate and solemn acts of the people would not serve to redress the injustice, and the overreaching speculator upon the facility or corruption of their legislature would be protected by the powers of this court in the profits of his bargain. . . .”

Justice Campbell went on to say that such decisions “ will establish on the soil of every State a caste made up of combinations of men for the most part under the most favorable conditions in society, who will habitually look beyond the institutions and authority of the State to the central government for the strength and support necessary to maintain them in the enjoyment of their special privileges and exemptions.  The consequence will be a new element of alienation and discord between the different classes of society, and the introduction of a fresh cause of disturbance in our own distracted political and social system.  In the end the doctrine of this decision may lead to a violent overturn of the whole system of corporate combinations.”56


The Dred Scott Case.


In the epochal Dred Scott decision, the differences among the Justices were as pronounced and acute.  With this decision, so momentous in its consequences, everyone is tolerably familiar, but the singular circumstances preceding the actual and final decision are little known.

In 1834, Dred Scott, a negro, was the slave of Dr. Emerson, in Missouri, and was taken by his master to Rock Island, Illinois.  Two years later Scott married Harriet, another slave of Emerson, and in 1838 returned to Missouri with his master.  Not until then did Dred Scott discover that the statutes of Illinois prohibited slavery, and that his transfer to Illinois had, in reality, made him a free man.  In 1852 Emerson sold his slaves to J.F.A. Sandford, of New York City.  Emerson having whipped Scott severely, Scott was then directed to bring suit for assault and battery.  Scott won his action in a Missouri court.  This decision was reversed by the Supreme Court of Missouri.  Under the form of the case of Dred Scott vs. Sandford, the case came up on appeal before the Supreme Court of the United States.

The great importance of the case was fully recognized.  But, at the outset, the Supreme Court of the United States had no intention of going to the lengths later determined upon.  When Taney assigned Justice Nelson to write the court’s opinion, it was the understood plan that the real issues were to be avoided ;  nothing was to be said of the constitutionality or unconstitutionality of the Missouri Compromise Act or other laws restricting the slave area ;  the decision was to be a brief one, affirming the decision of the Missouri Supreme Court, and treating the issues as local questions with which the Supreme Court of the United States did not care to concern itself or interfere.


The Court Secretly Changes its Plan.


What happened next is well related by Frederick Trevor Hill in his account of the case :

“ Before Mr. Justice Nelson could prepare this opinion, however, the active agents of the slave power intervened.  At dinners, receptions, and social functions they waylaid the judges, adroitly importuning them to change their plan, flattering those whose vanity gave the necessary opening, appealing to the ambition of others, and generally emphasizing the opportunity which lay before the Court to fulfill a public and patriotic duty by forever quieting a discussion injurious to the country’s welfare.  Declare all such restrictions as the Missouri Compromise unconstitutional, it was urged, and the North will acquiesce, and the Union will be preserved.  All of the judges were honest and conscientious, but some of them were far advanced in age, and the pressure which was constantly brought to bear upon them was well calculated to disturb their judgment.”


Slave-Holding Emissaries at Work.


Further in his narrative of this case, Hill tells (what was the authentic fact) that “ the most active and persistent of the emissaries ” was Alexander H. Stevens, a leading Southern politician and later vice-president of the Confederacy.  A letter of Stevens reveals that he was informed in advance exactly what the nature of the decision would be, and precisely what was happening in the supposedly secret and carefully-guarded councils of the Supreme Court.  Stevens was fully aware of the fact that the Missouri Compromise Act would be declared unconstitutional.  “ How,” Hill observes, “ an outsider came to be so intimately acquainted with what was happening in the secret conclaves of the judges, has never been disclosed, but the information was accurate in every particular, and bears evidence of having been obtained at first hand.”57

Hill does not overstate when he says that Stevens knew of the exact moves of the Supreme Court at the precise time they were made.  Writing from Washington, December 15, 1857, to his brother, Linton Stevens, regarding the progress of the Dred Scott case, then under consideration by the Supreme Court, Alexander H. Stevens thus announced :  “. . . I have been urging all the influences I could bear upon the Supreme Court to get them to postpone no longer the case on the Missouri Restriction before them, but to decide it.  They take it up to-day.  If they decide, as I have reason to believe they will, that the restriction was unconstitutional,”— then, Stevens went on, that would settle the question of Territorial legislation over slavery.58


The Deferred Decision, and its Purport.


For political reasons, the decision was long held back ;  not until March 6, 1857 — two days after Buchanan’s induction as President — was it made public.

The exultation that the decision caused in the South, and the tempestuous uproar of rage in the North, are matters of commonplace historic knowledge.  By a vote of seven to two, the Supreme Court of the United States declared that the Missouri Court, where the case was originally tried, had no jurisdiction, and dismissed the suit.  The majority decision also denied the legal existence of negroes as persons ;  it pronounced them merchandise or property.  The decision further denied that Congress had supreme control over the Territories, and refused to allow the constitutionality of the Missouri Compromise Act.  In his opinion, Chief Justice Taney wrote of conditions among “ enlightened nations ” at the time of the Declaration of Independence when, said he scornfully, the negro race was regarded “ as so far inferior that they had no rights which the white man was bound to respect ;  and that the negro might justly and lawfully be reduced to slavery for his benefit.”59  According to Taney and his concurring associates this was a fixed, unchangeable condition subject neither to question, alteration nor interference.

According to a compilation made in the year 1850, it was estimated that in fifteen slave States, having an entire population of 9,612,679, less than 200,000 were slave owners, yet at this time they held 3,200,364 slaves.  In the slave States there were 228,136 free negroes but they were not considered citizens or allowed to vote.  By the close of Buchanan’s administration, says Wilson in his “ Rise and Fall of the Slave Power in America,” it was estimated that the slave traffic had grown to the purchase and sale of 30,000 slaves a year, at a market value of $30,000,000.  “ This trade, with its sad aggregate of suffering and sorrow, on the one part, of demoralization and guilt, on the other, was carried on unblushingly.”


Senator Seward Charges Collusion.


On March 3, 1858, Senator Seward of New York, arose in the United States Senate, and in a scathing yet measured speech, which caused a national sensation, denounced the Supreme Court of the United States, and accused it of having in its Dred Scott decision been in collusion with Buchanan as President-elect and President in a conspiracy to fasten slavery upon the United States for all time.

“. . . Before coming into office,” Seward said, “he [Buchanan] approached, or was approached by the Supreme Court of the United States.  The day of inauguration came, the first one among all the celebrations of that great national pageant that was to be desecrated by a coalition between the executive and judicial departments, to undermine the national legislature and the liberties of the people.  The President [Buchanan], attended by the usual lengthened procession, arrived and took his seat on the portico.  The Supreme Court attended him there in robes which yet exacted public reverence.  The people, unaware of the import of the whisperings carried on between the President and the Chief Justice, and imbued with veneration for both, filled the avenues and gardens as far away as eye could reach.  The President . . . announced (vaguely, indeed, but with self-satisfaction) the forthcoming extrajudicial exposition of the Constitution, and pledged his submission to it as authoritative and final.  The Chief Justice and his associates remained silent. . . . It cost the President, under the circumstances, little exercise of magnanimity now to promise to the people of Kansas, on whose neck he had, with the aid of the Supreme Court, hung the millstone of slavery, a fair trial in their attempt to cast it off, and hurl it to earth, when they should come to organize a State Government.  Alas !  that even this cheap promise, uttered with such great solemnities, was only made to be broken  !” . . .60

Elsewhere, in the course of his philippic, Seward declared :  “. . . The Supreme Court can reverse its judgment more easily than we can reconcile the people to its usurpation.  Sir, the Supreme Court attempts to command the people of the United States to accept the principle that one man can own other men ;  and that they must guarantee inviolability of that false and pernicious property.  The people of the United States,” Senator Seward went on, openly flouting and defying the Supreme Court’s decision, “ never can, and they never will, accept principles so unconstitutional and abhorrent.  Never, Never !  Let the court recede.  Whether,” Seward threatened, “ it recedes or not, we shall reorganize the court, and thus reform its political sentiments and practices, and bring them into harmony with the Constitution and the laws of Nature. . . .”61

For this attack upon the Supreme Court, Seward was venomously assailed by conservatives and by the representatives of the slaveholders.  His accusations of collusion were declared to be utterly unfounded, and were pronounced the vaporings of a mind either obsessed with partisan rancor or deranged with malignant hatred.  Even Northern opponents of slavery who had faith in the integrity of the Supreme Court of the United States, could not credit Seward’s grave charges, and dismissed them as incredible.

The same charges of collusion were made by Abraham Lincoln in his celebrated debates with Senator Douglas.  Lincoln repeatedly charged that the Dred Scott decision was the result of a conspiracy to which Taney, Buchanan, Douglas and others were parties.  “ Mr. Lincoln,”— so the literal report of Douglas’ reply, at Ottawa, Ill., August 21, 1858, reads, in part, —“ has not character enough for integrity and truth, merely on his own ipse dixit, to arraign President Buchanan, President Pierce and nine judges of the Supreme Court, not one of whom would be complimented by being put on an equality with him.”62

Truth of the Charges Established.


But that the charges made by Seward and Lincoln were absolutely true in every respect is now conclusively established. In the recently issued “ Works of James Buchanan ”— twelve volumes in all — edited by Prof. John Bassett Moore, Buchanan’s correspondence is given in full.  Professor Moore incorporates two letters written to Buchanan, — one letter from Justice Catron, the other from Justice Grier.  These letters, written several weeks before the Dred Scott decision was handed out, prove that the Supreme Court of the United States did approach Buchanan previous to his inauguration.  They further show that Buchanan had brought some species of pressure (the nature of which is unknown) upon the Supreme Court ;  that negotiations were carried on with the greatest secrecy between Buchanan and the Supreme Court ;  and that when Buchanan ostentatiously made the pledge in his inaugural address that he would abide by the decision of the Supreme Court, he knew in advance precisely what the salient features of that decision would be.  These facts are now on an incontrovertible basis.


Letters of Justices Catron and Grier.


According to the first of the two letters reproduced by Professor Moore, Justice Catron, under date of February 19, 1857, wrote to Buchanan making suggestions of what Buchanan might with safety and propriety say in his inaugural address about the Dred Scott case, and requesting Buchanan to write to Justice Grier and seek to induce him to come to terms.  Justice Catron’s letter proceeded :

“ Will you drop Grier a line saying how necessary it is — & how good the opportunity is, to settle the agitation by an affirmative decision of the Supreme Court, the one way or the other.  He ought not to occupy so doubtful a ground as the outside issue — that admitting the constitutionality of the Mo. Comp. line of 1820, still, as no domicile was acquired by the negro at Fort Snelling, & he returned to Missouri, he was not free.  He has no doubt about the question on the main contest, but has been persuaded to take the smooth handle for the sake of peace.

“ Sincerely yr. frd.,             
J. CATRON.”

It is not clear whether Buchanan had previously written to Catron.  But it is clear that Buchanan followed Catron’s suggestions ;  after Catron wrote the foregoing letter, Buchanan wrote to Justice Grier, and on February 23, 1857, received a reply in which Grier wrote :

“ Your letter came to hand this morning.  I have taken the liberty to shew it in confidence to our mutual friends Judge Wayne and the Chief Justice.  We fully appreciate and concur in your views as to the desirableness at this time of having an expression of the opinion of the Court on this troublesome question.  With their concurrence I will give you in confidence the history of the case before us, with the probable result.”63

Grier further expressed his solicitude that the decision should be so rendered that it would not seem a purely geographical one, meaning thereby that the Supreme Court should be saved from being discredited, which it would be were the decision made purely by Justices from the slave States.  A significant consideration, this.

In view of these letters the charges of collusion stand proved.  Chief Justice Taney was furious that Seward had penetrated into and uncovered one of the most carefully hidden secrets of the Supreme Court of the United States.  “ Taney,” says Rhodes, “ was so incensed at the speech of Seward that he told Tyler, who was afterwards his biographer, that had Seward been nominated and elected President in 1860, instead of Lincoln, he would have refused to administer to him the oath of office.”


Lincoln Scouts the Sacredness of the Supreme Court.


When the Abolitionists bitterly denounced the Dred Scott decision, the slave power came forward with the demand that the Supreme Court decision be accepted with reverent acquiescence and that no whisper of criticism should be made against that exalted tribunal.

In the course of his debates with Stephen A. Douglas, Abraham Lincoln spoke derisively of that attitude.  “ The sacredness that Judge Douglas throws around this decision,” he said at Chicago, July 10, 1858, “ is a degree of sacredness that has never before thrown around any other decision.  I have never heard of such a thing.  Why, decisions apparently contrary to that decision, or that good lawyers thought were contrary to that decision, have been made by that very court before.  It is the first of its kind ;  it is an astonisher in legal history. . . . It is based upon falsehood in the main as to the facts.”64  At Springfield, seven days later, Lincoln again adverted to the subject.  “. . . Our judges,” said he, “are as honest as other men and not more so.  They have, with others, the same passions for party, for power, and the privilege of their corps.  Their maxim is, ‘ boni judicis est amphare jurisdictonem.’  [it is the part of a good judge to amplify jurisdiction] ;  and their power is the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. . . .”65


Justice Clifford’s Appointment.


Justice Curtis’ resignation from the Supreme Court, soon after this decision — he had been one of the minority — was followed by the appointment of Nathan Clifford as an Associate Justice.  Clifford came from Maine ;  had been in the Maine Legislature from 1830 to 1834, serving as Speaker of the Maine House of Representatives in 1833 and 1834.  In 1834 he had become Attorney-General of Maine.

It was during this period that vast stretches of what were then called Maine “ wild lands ” were acquired by a few land appropriators.  From 1785 to 1812 the State of Massachusetts — of which, until 1820, Maine was a part — had sold 4,086,292 acres for the sum of $818,691.14.  Of those 4,086.292 acres, a single individual — William Bingham — bought 2,000,000 acres, in 1793, at the insignificant rate of twelve and a half cents an acre.  In 1816 a total of 16,000,000 acres of land, most of it thick with primitive growth of valuable timber, were left in public ownership.  This area rapidly vanished ;  from 1823 to 1834 not less than 1,003,450 acres were alienated into private holdings, mostly those of speculators and lumber capitalists.  Notwithstanding the great recognized value of those timber lands, they were fraudulently or corruptly sold for an average of forty-six cents an acre.  Subsequently, 1,800,000 more acres went, in large part, into the maws of capitalists from 1834 to 1855 ;  and year after year the process continued, until no State domain was left.

In 1,938, Clifford was elected to Congress :  in 1846 he became a member of President Polk’s Cabinet, as Attorney-General of the United States.  One of the most influential members — if not the most influential member — of this Cabinet, was, as heretofore noted, that notorious land speculator and land grabber — Robert J. Walker.  After the Mexican War, Clifford was sent to Mexico as a Peace Commissioner.  In 1849 he returned to Portland to reëngage in law.  President Buchanan appointed Clifford to the Supreme Court of the United States upon the recommendation of United States Senator James Ware Bradbury,66 whose law partner in Maine was Lot M. Morril, who himself became United States Senator.  One of the members of the Morrill family was Land Agent of Maine.  The politics of that State, of both political parties, were largely controlled by a few families such as the Coburns.  Beginning as cattle dealers, Abner Coburn and Philander Coburn acquired 450,000 acres, or more than seven hundred square miles, of land in Maine ;67  the Coburn estate is at this day enormous.  Bradbury was one of the promoters of the Kennebec and Portland Railroad.  He was also one of the capitalists behind the Somerset and Kennebec Railroad, of which he was a director, and of which Abner Coburn became president, after Bradbury had consummated its consolidation with the Portland and Kennebec Railroad.  Those railroads are now part of the Maine Central Railroad.

Philip Brown, eldest son of John Bundy Brown, was married to Fanny, daughter of Justice Clifford ;  John Bundy Brown’s daughter, Ellen, became the wife of W.H. Clifford, son of Justice Clifford.  Who, it may be asked, was John Bundy Brown ?  One of the very foremost capitalists of Maine.  He was the head of the Portland Sugar Company which, at one time, employed nearly a thousand workers ;  he was one of the original incorporators and directors of the Atlantic and St. Lawrence Railroad (now the Atlantic Division of the Grand Trunk Railway) ;  he was interested in the Portland and Kennebec Railroad and the Maine Central Railroad ;  he was the largest stockholder in the Portland and Ogdensburg Railroad ;  a director for many years in the Portland, Saco and Portsmouth Railroad ;  for a period a director in the Erie Railway ;  had advanced large sums to the Toledo, Peoria and Warsaw Railroad ;  was also at various times a director of the Portland Company, the Rolling Mills Company, the Kerosene Oil Company, the Maine Steamship Company, the First National Bank and other corporations.68  His firm — J.B. Brown and Sons — was the largest private banking house in Portland, and Brown’s private mansion the most capacious and costly and “ magnificent ” in that city.69


Chief Justice Taney Discredited.


The breaking out of the Civil War found Taney much despised and discredited in the North ;  for his part in the Dred Scott decision he was generally viewed with detestation.  Although it was well known that his sympathies were with the South, he cautiously made no public utterances, and remained Chief Justice until the day of his death in 1864.70  He seems to have had need of the salary attached to the position.  According to Tyler, who, as we have narrated, was chosen by Taney to write his biography, “ Taney’s small fortune was invested at the time of the Civil War exclusively in Virginia State stocks.”  A man of originally tall stature — upwards of six feet — Taney’s constitution, always delicate, had been undermined by close application to musty legal lore and sedentary habits.  In his last years “ he had become bent and warped, so that his skin was like a cracked parchment, his stature bent and he walked with difficulty and tardiness.”

According further to Tyler, Taney was poor.  In an interview with Tyler, published after Taney’s death in the Cincinnati Commercial newspaper, Tyler was asked :  “ Was Judge Taney rich, Mr. Tyler ? ”  “ No, sir,” replied Tyler, “ always poor.  He lived in Blagden row — the row of stuccoed houses opposite the City Hall.  They are four-storied ;  an iron balcony runs above the first story ;  two windows adjoin the hall door.  His daughters, at this day, live upon copying reports and papers from the Department of the Interior.  One of them, I believe, is unmarried ;  another, a widow.  They are in as nearly a state of indigence as I care to classify ladies so tenderly reared.  The judge himself said to me, during the war, that he lamented his narrow means, because he wanted to take another newspaper and could not afford it.”71

These statements, and the implication that they aimed to convey, are obviously from an uncommonly partial source.  But one fact is certain :  If, as Lincoln and others virtually charged, Taney was corrupt, it was not a corruption by medium of bribes.  Taney could not be approached with mercenary inducements.  His corruption was of a different kind.  A man may accept bribes, yet possibly refuse to accord his vote and services.  But if a judge’s class training, class views and class interests, with all of the bias and associations allied with them, be hard and fixed, he will honestly award, as a matter of indisputable right, what no amount of bribes could influence him to give.

This was the species of Taney’s corruption, a sinister kind not recognized by penal laws, and yet, on the whole, far exceeding in ominous efficacy the more vulgar and less certain mode of money corruption.  We have seen how under the administration of Taney, as Secretary of the Treasury, and under him as Chief Justice, land grabbers obtained tens of millions of acres of the richest part of the public domain, and how corporations obtained immunity from taxation.  The capitalists concerned became millionaires and multimillionaires, but Taney died, on October 12, 1864, at the age of eighty-seven, in a kind of gnawing genteel poverty, unable, as we learn, to afford an extra few cents for an additional newspaper.72




1 The growth of the railroad interest is fully described in a later chapter.

2 See, Metcalf’s Reports (Supreme Court of Mass.), Vols. III and IV: pp. 581, etc., Cushing’s Reports, Ibid., 142, etc., etc.

3 Cushing’s Reports (Supreme Court of Mass.), Vol. III: 270.  In this case he had successfully prevented an injured railroad brakeman from recovering damages from the company.

4 III Cushing’s Reports, 25 and 58, and V Ibid., 375.

5 VI Coshing, 424.

6 “ The Life and Writings of B.R. Curtis, Edited By His Son,” Vol. I : 154.

7 “ Reminiscences,” Vol. I : 287.  Webster was one of the foremost politicians in advocating a high protective tariff.

8 “The Life and Letters of B.R. Curtis,” etc., Vol. I: 168.  This suit involved title to property of immense value in New Orleans.  The footnote in the Case of Charles Patterson vs. Gaines and Wife, VI Howard’s Reports, 550, reads :  “Mr. Justice Taney did not sit in this cause, a near family relative being interested in the event.  Mr. Justice McLean did not sit in this cause.”  It is not explained who the relative was.  The decision went against Mrs. Gaines.

9 “Life and Letters of B.R. Curtis,” etc., Vol. I: 168 and 180.

10 “ Life and Letters of B.R. Curtis,” etc., Vol. I : 268.

11 See, XIV Gray’s Reports (Supreme Court of Mass.), 553 ;  103 Mass. Rep., 254 and 259 ;  107 Mass. Rep. 15; XI Wallace’s Reports, 459 ;  83 Mass. Reports (I Allen), 339 ;  91 Mass. Rep., 466 ;  96 Mass. Rep., 444 ;  102 Mass. Rep., 45, etc., etc.

12 Ex. Doc. No. 84, Thirty-Sixth Congress.  Also, House Reports, Third Session, Fortieth Congress, Report No. 261 : 544.

13 Howard’s Reports, Vol. XVII : 542-576.

14 Ibid., 571.  A footnote in Howard reads :  “ Mr. Justice Daniel did not sit in this cause ” (p. 542).

15 U.S. vs. Rico, Hoffman’s Reports :  Land Cases, 1862 : 161-162.

16 Ibid., 37.

17 Ibid., 41.

18 Ibid., 43.

19 Ibid., 68.

20 Ibid., 107.

21 Hoffman’s Reports :  Land Cases, 113.

22 Ibid., 117 and 188.  The Calaveras County claim, however, was subsequently voided by the Supreme Court of the United States.  Attorney-General Stanton had appealed the case, and clearly proved that no such grant to Andreas Pico had ever been made by his brother.  Acting Governor Pio Pico.  “It is a forgery,” Stanton declared in court.  “ The proof of this is powerful and overwhelming . . .”  In the face of this proof, the Supreme Court could not avoid invalidating the claim.—XXII Howard’s Reports, 406-416.

23 Hoffman’s Reports, etc., 126.

24 Ibid., 130.

25 Ibid., 142.

26 Ibid., 162.

27 Ibid., 197.

28 House Reports, Third Session, Fortieth Congress, 1869, Rep. No. 261 : 535.

29 Hoffman’s Reports, etc., 249-272.  (Case of Palmer et al. vs. the U.S.)

30 Hoffman’s Reports, etc., 371.

31 XXIII Howard’s Rep., 515-543.

32 U.S. vs. Cambuston, XX Howard, 59-65.

33 XXIII Howard, 353.

34 U.S. vs. Garcia, XXII Howard, 275-276.

35 Ibid., 290.

36 98 U.S. Reports, 68-71.

37 In the Case of Luco vs. U.S., it was proved that General Mariano Vallejo had forged a grant ;  the claim was rejected on that ground alone.

38 XXII Howard, 395.

39 XXII Howard’s Reports, 457-458.

40 The trial of the case brought out many remarkable facts.  It was shown that a great number of blank grants with the names of Governors Micheltorena and Bocanegra attached, or purporting to be attached, on genuine Mexican Government stamped paper of the years 1842 and 1843, had been in circulation in California since the ratification of the treaty.  These blanks had been used for the purpose of fabricating grants to land.  Limantour and Jouan, one of his confederates, had brought a number of the stamped blanks to California, in 1852.  It was also disclosed that there was a secret association of men leagued together for the purpose of forging land grants ;  this gang operated in three different parts of California.  See, “ Case of U.S. vs. Limantour, Transcript of Record,” etc., 1858, Vol. III : 354-356.

41 Hoffman’s Reports :  Land Cases, etc., 389-451.

42 See, Case of Reese vs. U.S., IX Wallace’s Reports, Supreme Court of the U.S., 13-22.  This action involved one of the sureties of Limautour’s bail bonds.

43 XIX Howard’s Reports, 330.

44 Gonzales vs. U.S., XX Howard, 173.

45 See, U.S. vs. Gomez, XVIII Howard’s Reports, etc., 327-341, and III Wallace’s Reports, 752-767.

46 XIII Statutes at Large, 333.

47 U.S. vs, Reading, XVIII Howard’s Reports, 1-16.

48 Arguello et al. vs. U.S., XVIII Howard, 539-553.

49 XVIII Howard’s Reports, 565.

50 XVIII Howard’s Reports, 552-553.

51 Case of U.S. vs. Dominigo and Vincente Peralta, XIX Howard’s Reports, etc., 343-349.  Justice Daniel dissented.

52 U.S. vs. Sutherland, guardian, etc.. XIX Howard, 363.

53 See, “ History of the Great American Fortunes,” Vol. II.

54 House Report No. 269, Forty-third Congress, Second Session, 1874-5, Vol. II : xvii.  The committee reported that “ a sum of nearly one million dollars appears to have been disbursed in some sort of connection with the passage of the act.”

55 U.S. vs. Castillero, XXIII Howard’s Reports, etc., 464-469.

56 XVIII Howard’s Reports, 371-373.  Justices Catron and Daniel concurred in Campbell’s conclusions.

57 “ Decisive Battles of the Law.”

58 Johnston and Browne’s “Life of A.H. Stevens,” 316.

59 Case of Dred Scott vs. Sandford, XIX Howard’s Reports, 407.  Justices McLean and Curtis were the non-concurring judges.

60 The Congressional Globe, Part I, First Session, Thirty-Fifth Congress, 1857-1858 : 941.

61 Congressional Globe, 1857-1858, Part I : 943.

62 This coarse, insulting rejoinder was typical of the “able and cultured” Douglas, the arch defender of slavery and of the Supreme Court.

63 For a clear exposition of the facts brought out by Prof. Moore, see an extended review in The Independent, issue of August 24, 1911.

64 “ Political Debates Between Hon. Abraham and Hon. Stephen A. Douglas,” etc., Edition of 1860 : 20.

65 Ibid., 61.

66 See, “Collections Of The Maine Historical Society,” Vol. IX, “Memoir of Nathan Clifford,” by James Ware Bradbury.

67 “ Biographical Encyclopedia of Maine, 19th Century,” 436.  Abner Coburn was later elected Governor of Maine.  Through his connection with the Northern Pacific Railroad, he personally acquired 50,000 acres of land along the route of that railroad.  The Coburns were also owners of banks.

68 “ Biographical Encyclopedia of Maine, 19th Century,” 209, which describes Brown’s connections with these various corporations.

69 So much for Justice Clifford’s connections.  Of Clifford’s exaggerated self-esteem and formalism the following anecdote was later current in the public press when he was on the Supreme Court Bench :  “ Dignified old Clifford always avoided, if possible, the use of the definite article.  He would write in his opinion, ‘ Suit brought So-and-so,’ ‘Case involved So-and-so,’ never writing ‘the’ if it could be avoided.  Jocular Justice Grier, who had been on the bench long before Justice Clifford came to Washington, and who was the only man who dared take liberties with his Maine brother, said one day, slapping Clifford on the back, ‘ Cliffy, old boy, why do you hate the definite article so ? ’  Clifford drew himself up stiffly and replied, ‘ Brother Grier, you may criticize my law, but my style is my own.’ ”

70 Justice Campbell, however, had resigned in 1861, to take up the cause of the Southern Confederacy.

71 This interview was republished in Ellis’ “ Sights and Secrets of the National Capital ” (1869) : p. 267.

72 Before Taney’s death President Lincoln had made several appointment as Associate Justices of the Supreme Court.  These are dealt with in the next chapter.