HISTORY OF THE SUPREME COURT
OF THE UNITED STATES

THE AUTHENTIC JOHN MARSHALL

Of all of the Chief Justices of the Supreme Court of the United States, John Marshall, in reputation, biographical lore, and tradition has stood out fixedly as the most illustrious.  Certain fervent writers have even classed him as of the three greatest men that America has produced, ranking with Washington and Lincoln.  A multitude of eulogists have acclaimed him as one of the very foremost jurists of all ages, the quintessence and apogee of exalted judicial wisdom and virtue.

Long since, it became the settled fashion in particular quarters to reverence Marshall’s very memory.  But it has been remarked that this continuous laudation has singularly failed to touch and move the popular mind.  Of other heroes, warrior and political, the people at large know, but they seem to lack all due appreciation of judicial heroes, and go their way caring nothing.

If to the unerudite run of people the name of John Marshall carries little, and means less, it signifies much to the aristocracy, or let us say, the oligarchy of wealth.  Justly so to that highly conscious class, which always well rewards and honors its apostles and servers, the deeds and services of John Marshall stand out with a halo of dazzling greatness.  To them, Marshall is the greatest of the great among judges.

In appearance he did violence to the prescribed fastidious apparel of awe with which a judge was expected to invest himself.  He was careless, even sloven in his dress, looking more like a countryman than a jurist, often taking his seat on the Supreme Court bench with burrs sticking to his clothes — yet these were but trivial peccadillos of no disparaging consequence.¹  True, in his own day, this absence of gowned dignity and stiff decorousness was animadverted upon by the devotees of aristocratic elegancy, who would have preferred to disseminate the idea of an awesomely-raimented Chief Justice.  That, too, he frolicsomely pitched quoits, read novels ceaselessly and even went to market with a basket on his arm — this did not seem to comport with the stern, lofty dignity of his unapproachable office.  But these minor things have all receded into the obscurity of time, although (what his critics overlooked) they well served their purpose of imparting an air of democratic simplicity to Marshall while, in works, he was laying the bulwarked foundations of an era of unrestricted capitalist development.  And it is because of those works that the men of capital to-day so readily pronounce his incomparable excellence of greatness.

His Early Life.

Born in Fauquier County, Virginia, in the year 1755, John Marshall was the oldest of a family of fifteen children.  His father, Thomas Marshall, was a planter of some slight fortune, and for a long time was surveyor and superintendent for that considerable part of Lord Fairfax’s estate in the Northern Neck of Virginia.  At one time the extent of this estate comprised twenty-one counties, or more than five million acres.  In Chapter I we have related the facts as to the origin of the great Fairfax estate, and described how on one occasion Lord Fairfax fraudulently conveyed a tract of 300,000 acres to his nephew and agent, Thomas Bryant Martin,² who at once reconveyed them to Fairfax.  Of the laws then prevailing in Virginia, we have given ample details in Chapter II.  To recapitulate, they were laws made by the manorial lords and planters exclusively for their own purposes and benefit, and drafted with great severity for the chattel enslavement of the negro, and for the practical enslavement of the white laborer.  There was hardly a vestige of a middle class during that time, so that John Marshall’s father and the whole Marshall family belonged by interest and attachment to the landed aristocracy.

This was the environment in which John Marshall was born, and which he imbibed during his most sensitive years.  One has only to read the various addresses and petitions to the proprietary manorial lords to know the immense humility and obsequiousness with which those eminences were treated.  Towards Lord Fairfax, his employer, Thomas Marshall assumed and felt an unvarying deference, not by any means like the abject servility expected from the “ lower orders,” but still of a servile character customary from servitor and employe.  Of all of Thomas Marshall’s sons, John, being the oldest, was most imbued with the pervading caste ideas.  He took off his hat humbly to Lord Fairfax and regarded his title, position and power with vast respect.  For slave and laborer, his feeling was that of the prevailing aristocratic contempt.  He looked upon them as the natural drudges for the aristocracy, to be held in their places and bonds by the strictest laws.

Unlike many other youths of their class, John Marshall and his brothers were not sent to private schools in their incipiency.  Their father engaged a tutor to take their education in hand at home.  The consequence was that in their most impressionable years they remained cloistered in a narrow, caste atmosphere which sank deep.  But, on the other hand, this personal, concentrated paternal supervision had the effect of developing certain mental qualities and marked individual characteristics so often suffering when children are educated in mass in the undiscriminating pedantry of classrooms.  It was not until John was past fourteen years of age, that he was put in Rev. Mr. Campbell’s school in Westmoreland County.  When eighteen years old, he began his legal studies, and at the outbreak of the Revolution he enlisted in the Continental army.  In 1780 he was admitted to practice at the bar.

His career from thence was partly that of engaging in politics, for which he had a precocious natural capacity, and in part that of a practising lawyer.  When twenty-seven years old he was elected to the Virginia House of Delegates, and at the same time was appointed a member of the Virginia Council of State.  Marrying a daughter of Ambler, the Virginia State Treasurer, in 1783, he removed to Richmond, but still was reëlected to the Legislature from Fauquier County, and then Henrico County.  He continued in the Legislature until 1789.  Hamilton’s influence upon Marshall was very considerable ;  and, as a member of the Virginia Convention called to ratify or reject the Constitution, Marshall was conspicuously zealous in pushing its adoption.

Attorney for the Fairfax Estate.

As a lawyer, Marshall’s specialty was landed estates ;  he represented the Fairfax interests,³ and was attorney for other British claimants in other cases.  More than this ;  he was extremely ambitious to possess the Fairfax estate for himself, but there were many obstacles to be encountered.  What they were, how he gradually and persistently overcome them by a series of adroit tactics, and how his securing of the Fairfax estate was the actual and predominating motive underlying, when he was Chief Justice, one of the most important decisions affecting constitutional law ever handed down by the Supreme Court of the United States—all of these facts are herewith duly narrated in consecutive order.

Lord Fairfax’s entire estate had been confiscated during the Revolution by the Virginia General Act of October, 1777, which sequestered all of the property and estates of British subjects.  But the legal ingenuity of which Jefferson writes, was silently at work.

In May, 1779, an act was passed by the Virginia Legislature for the apparent purpose of establishing a land office, and ascertaining the terms and manner of granting waste and unappropriated lands.  In the act, unnoticed except by those interested, was this clause :  “ And that the proprietors of land within this commonwealth, may no longer be subject to any servile, feudal or precarious tenure ;  and to prevent the danger to a free state from perpetual revenue ;  Be it enacted, That the royal mines, quit rents, and all other reservations and conditions in the patents or grants from the crown of England, under the former government, shall be, and are hereby declared null and void ;  and that all lands, thereby respectively granted, shall be held in absolute and unconditional property, and to all intents and purposes whatsoever, in the same manner with the lands hereafter to be granted by the commonwealth, by virtue of this act.”⁴  What this clause really did was to relieve the proprietors of all rents and other conditions, and at the same time admit of a construction by which title to their lands was absolutely confirmed.  The secret agents of the royalist proprietors had done a fine stroke in getting that act passed.

Evidently, Lord Fairfax knew precisely the meaning of the act ;  before his death in December, 1781, he left the whole of his estate to his nephew, Denny Martin or Fairfax.  This nephew had been born in England about the year 1750, lived there, and remained a British subject.  The younger brother of Denny Fairfax was Thomas Bryant Martin, who was a citizen of the State of Virginia, and was, as we have seen, Lord Fairfax’s agent and instrument.

The Doctrine of Acquiescence.

For many years the title to certain of Fairfax’s estate had been contested by Hite and M’Coy under a grant to them which we have described in Chapter I.  The suit of Hite and others against Fairfax and others came up before the Virginia Court of Appeals, in May, 1786.  John Marshall appeared as the attorney for the Fairfax claim.  For Hite and others, John Taylor, their attorney, began with the point that Fairfax’s title was deficient and fraudulent ;  that the original proprietary grant to Fairfax had been made by Charles II while a fugitive, and that James II, in the fourth year of his reign, but after he (James) had been driven off the throne by a Revolution, had confirmed it.⁵

In reply, John Marshall made his principal point a doctrine which, when he was only thirty-three years old, we thus see him advancing, and which same redoubtable doctrine of acquiescence he later, as Chief Justice of the United States, made the foundation for perpetuating chattel slavery and all manner of oppressions.  It was a doctrine that, for like purposes, has been used by the courts ever since, so that as law is now construed, it remains a fundamental and elastic method of confirming the property, power and tyranny of one class, and the helplessness of another.

“ The long and quiet possession of himself and his predecessors ” (argued Marshall as to Fairfax) ;  “ the acquiescence of the country ;  the several grants of the crown, together with the various acts of the Assembly recognizing, and, in the most explicit terms, admitting his right, seemed to have fixed it on a foundation, not only not to be shaken, but not even to be attempted to be shaken. . . .”⁶  This seemed an ingenious argument, but the statements were not true.  Fairfax’s claim had never been acquiesced in by Hite and M’Coy, nor by the officials who gave them their contravening grant.  Marshall knew, too, that the Assembly acts were the products largely of Fairfax himself who, with a few other proprietaries, controlled that body.

It would seem self-evident that Governor Randolph of Virginia, in 1789, did not concede the claim of either Fairfax or Hite, for on April 30 of that year Governor Randolph gave to David Hunter, and his heirs forever, a grant of a part of that very land, in exchange for a land office treasury warrant dated January 23, 1788.

The Contest for the Fairfax Estate.

A hot contest now set in for the possession of the Fairfax estate.  Because of its arable soil valuable for tobacco growing, its timber and other resources, its accessibility, lying as it did, on the Potomac River and other rivers, and its close proximity to the newly-established site of the National Capital, the prize was a rich one.  In April, 1791, a declaration in ejectment was served on the tenants in possession.  This action was brought in behalf of Hunter’s grant.  The Winchester district court admitted Denny Martin (otherwise Denny Fairfax) to defend the suit.  It was action specifically for 788 acres of land in Shenandoah County.⁷

But the claim, as set up by the heir of Fairfax, covered about three hundred thousand acres of land in the Northern Neck of Virginia, and the real contention revolved around the point of whether Denny Fairfax, as Lord Fairfax’s heir, had any claim whatever on an estate supposed to have been confiscated.  The State of Virginia denied first, that Lord Fairfax had ever got this estate lawfully, or by legitimate methods ;  second, it asserted that the estate had been confiscated ;  third, it claimed that as an alien, Denny Fairfax could not hold lands.  In opposition to these arguments, Marshall used much the same arguments that he had employed in the case of Hite vs. Fairfax.  The court, in this case, decided in favor of Fairfax ;  as to the special circumstances leading to this decision, there are many obscurities in the available records, and the explanation cannot be extracted.

But the next step in the proceedings is incontestably clear.  Presently it turned out that Marshall himself and his brother James had bought out Denny Fairfax’s claims to the Fairfax estate in Virginia.  This was considered news of the first importance in that State.  That the purchase took place so soon after the drafting of Jay’s Treaty was looked upon as signifying that if fresh assaults were made upon Fairfax’s title, the claimants could fall back upon the provisions of that treaty as an additional ground for validation of their title.  This coincidence of John Marshall’s buying the Fairfax claim with the signing of Jay’s Treaty was a matter of invidious comment.  John Marshall’s agent was his brother James Markham Marshall, also a lawyer, who personally negotiated in England with Denny Fairfax for the purchase of the Fairfax claim, for his brother John and himself.  And, as showing the interconnection of landed interests, it may here be remarked that, in 1795, James Markham Marshall married Hester, daughter of Robert Morris, who at this time was engaged, as we have seen, in such enormous land transactions with Justice James Wilson and others.

Marshall Defends Jay’s Treaty.

While James Markham Marshall was transacting this business in England, John Marshall was industriously advocating Jay’s Treaty in Virginia.  Its adoption meant much to him.  He was the attorney for British claimants.  His getting possession of the Fairfax estate, he astutely knew, hung much upon the ratification of that treaty.  Both Hunter and the State of Virginia were pressing new litigation against any validation of the confiscated Fairfax estate.  As an acute lawyer, Marshall was well aware of the full import of the provisions of Jay’s Treaty, and to what extent they could be used in the courts for the restoration of confiscated estates.  The Fairfax claim up to date had been at best, he knew, a shaky one, extremely unpopular, and kept alive by legal ingenuity and sophistry.

“ The great question of the day,” says a eulogist of Marshall, “was the adoption of Jay’s Treaty with Great Britain.  In Virginia, a bitter opposition assailed the treaty, and the entire State rang with denunciations of it.  Even the influence of Washington was powerless to stay the tide of popular passion excited against the treaty, and those who upheld it.  Meetings were held in Richmond, and the treaty was fiercely denounced.  Marshall now came to the rescue, and before a meeting of the citizens of that place made such an unanswerable argument in favor of the treaty, that the men who had been foremost in assailing it now united in the adoption of resolutions indorsing the policy of the Administration.  In the Legislature his efforts were equally successful, and the opponents of the Administration were forced to abandon their constitutional objections to the treaty, and to content themselves with a simple denial of the expediency of the measure at that time.”⁸

Houghton goes on to say that “ President Washington attached so much importance to these services that he offered to his old friend and comrade the position of Attorney-General of the United States, but Marshall declined the offer, as he wished to devote himself to his practice, which had now become very lucrative.  He continued to sit in the Legislature, which did not interfere with his private business, and remained the constant and vigilant friend of Washington’s Administration.  In 1796, he was offered the post of Minister to France, as Mr. Monroe’s successor, but declined it for the same reason which made him refuse the Attorney-Generalship.”⁹

The real reason why John Marshall wanted to remain in Virginia was certain pressing business concerning the Fairfax estate that he was consummating in the Virginia Legislature.  To that body he was again elected in 1795.  The action on the part of Marshall and other claimants for “ Leeds Manor,” was being sedulously pressed in the courts.

Had the outlook been good or even passable, Marshall was the very last who would have listened to compromise.  It was tolerably clear that Denny Fairfax, as an alien, could neither hold nor convey escheated land.  Aside from the purely legal aspects, popular sentiment was greatly stirred at the sight of aliens who had become enemies of the American Revolution obstinately asserting their rights to land which, according to common understanding, had been definitely confiscated.  If Marshall could get a Legislative act specifically expunging the escheat or forfeiture, that would go far toward establishing his project of recovery.  That is what he now did.

We shall relate the successive steps as they appear on the records.  The action of Hunter vs. Fairfax’s Devisee was in some form before the Supreme Court of the United States in 1796.  It would seem that this was an appeal from the decision of the Virginia court in favor of Fairfax, for Hunter was now the plaintiff in error.  On July 29, 1796, the Clerk of the Supreme Court of the United States received a letter from Hunter saying that Campbell, his attorney to argue the case, had died in Richmond on July 18, 1796, and praying for a postponement of the cause until the next term.  This request was opposed by Lee and Ingersoll, attorneys for Fairfax’s Devisee.  But the Supreme Court granted the application,¹⁰ and the case did not again come up before it until fourteen years later.  The reasons why will duly appear.

Announces His Purchase of the Fairfax Claim.

Petitions were concocted, and the Virginia Legislature was manipulated to pass a resolution to the effect that if the devisees of Lord Fairfax, or their claimants, would relinquish all claims to lands supposed to lie within the Northern Neck, which lands were waste and unappropriated at the time of the death of Lord Fairfax, then the State of Virginia would relinquish all claims to any lands specifically appropriated by Lord Fairfax to his own use either by deed or actual survey.¹¹  This resolution was put forward as a measure designed to compromise the controversy.

Having lobbied the resolution of compromise through the Legislature, John Marshall then formally accepted the proposition in this letter :

“ Richmond, November 24th, 1796, Sir, being one of the purchasers of the lands of Mr. Fairfax, and authorized to act for them all, I have considered the resolution of the General Assembly on the petitions of sundry inhabitants of the counties of Hampshire, Hardy and Shenandoah and have determined to accede to the proposition it contains.  So soon as the conveyance shall be transmitted to me from Mr. Fairfax, deeds extinguishing his title to the waste and unappropriated lands in the Northern Neck shall be executed, provided an act passes during this session, confirming on the execution of such deeds, the title of those claiming under Mr. Fairfax, to lands specifically appropriated and reserved by the late Thomas Fairfax, or his ancestors, for his or their own use.  I remain, Sir, with much respect and esteem, your obedient servant, John Marshall.  The Honorable, the Speaker of the House of Delegates.”¹²

Accordingly, on December 10, 1796, the Virginia Legislature passed an accommodating act.  In the face of the intense public opposition to resurrecting the titles (and fraudulent titles at that), of aliens to confiscated estates, the Legislature dared not specifically say that aliens could hold and convey lands.

But the act circumvented that delicate point by removing the disabilities of the forfeiture.  It innocently began asserting the right of the Commonwealth of Virginia to the lands of the alien, Denny Fairfax.  Then it recited the terms of the previous compromise resolution, and gave the full text of Marshall’s letter of acceptance.  The enacting clauses following declared that if those conditions were carried out by a specific agreement, then Denny Fairfax, or those claiming under him, and their heirs, should hold the land in question “ as if he, the said Denny, had been a native citizen of this Commonwealth, and as if no escheat or forfeiture had ever taken place.”  The act, however, contained a final clause reserving to all persons, other than the Commonwealth, any right or equity they might have in the Northern Neck lands.¹³

The law raised a considerable popular commotion, coming, as it did, at a time when great numbers of the Revolutionary veterans had been defrauded of their land warrants by cliques of powerful politicians, and when settlers everywhere were intensely aroused over the appropriation and monopolization by the politico-capitalists of tens of millions of acres of the best and most accessible land.  In the severe criticisms made, it was pointed out that the patriots who had fought the Revolution could not obtain land, while aliens, enemies and traitors like Fairfax could get a special law abolishing all penalties of forfeiture.  But, after all, the law was not directly for Fairfax’s benefit ;  it was for John Marshall’s, although the one received the benefit of the purchase price, and the other the estate.  Influenced by hostile public sentiment, the State officials balked at enforcing the act, whereupon, on December 22 and 23, 1797, the Legislature formally requested the Governor of Virginia to carry the law into effect.

A Competitor Brings Legal Action.

Instead of this law compromising the controversy, still fiercer litigation resulted.  Hunter was determined to keep his grant, and Marshall to gain the estate — an estate not only valuable commercially, but sentimentally endeared to Marshall by the memories of the youthful days spent on it, when his father had been its superintendent.

Actions and counter suits kept the courts busy.  It has not been possible to ascertain all of the intermediate circumstances between the time the compromise act was passed, and the time, in 1810, when the case of Hunter vs. Fairfax’s Devisee came up on appeal before the Supreme Court of Appeals of Virginia.  Frequently, the formal court records of those days lack a statement of the case, and simply make fleeting references in decisions to prior proceedings.  Thus, we learn from Judge Roane’s decision, in the Supreme Court of Appeals, in 1810, that Marshall, as one of the purchasers of the Fairfax claim, had availed himself of the compromise law by “ reversing two judgments in favor of the Commonwealth of Virginia, on the 10th of October, 1798, a record of which is before me.”¹⁴  But what those judgments were, was not explained.  Judge Roane also strongly denounced the “ said purchasers,” for having availed themselves, on the one hand, of the benefits of the compromise act, while on the other, refusing to submit to such of its provisions as conflicted with their purposes.¹⁵

It would plainly appear from Judge Roane’s decision that in violation of the explicit terms of the compromise law, Marshall set up claims to lands which he had expressly renounced in agreeing to the compromise.  And apparently this move was taken under the provisions of Jay’s Treaty, doubtless upon the grounds advanced by Marshall later that Fairfax’s estate had never been specifically confiscated ;  that the whole of it was therefore vested in his heir, Denny Fairfax ;  and that inasmuch as Jay’s Treaty provided for the payment of debts due to British subjects, Fairfax was entitled to recover the purchase price, and his claim was indirectly confirmed.  This is probably Judge Roane’s meaning in saying in his decision that the cause was revived under Jay’s Treaty of 1794 providing for the payment of British debts.

The course, however, of the long litigation over the Fairfax estate and the peculiar circumstances attending its final determination, are so intimately interwoven, in many respects, with the narrative of the Supreme Court of the United States, that in order to present the successive steps taken, a considerable chain of other highly-important and closely-connected events must be related.

Marshall’s Dominating Personality.

When Marshall was appointed Chief Justice of the Supreme Court, he had absolutely no reputation as a jurist.  He had never had any judicial experience ;  his reputation was wholly that of a politician and land lawyer.  In 1797 President Adams had appointed him, with Pinckney and Gerry, as Envoy Extraordinary to France, and for a brief time, in 1800, he had been in Congress, and had served as Adams’ Secretary of State.

But a more forceful, dominating man than Marshall, Adams could not have appointed Chief Justice ;  in audacity of judicial construction, and arrogance and tenacity of purpose, Marshall soon revealed that he had the qualities necessary for executing the purposes under way.¹⁶  These purposes were various.  One aim was to retain and extend in the courts the autocratic and all-pervading power of judicial authority.  Intimately woven with that aim, was the less general and more personal design of having the Supreme Court validate great fraudulent transactions of one kind or another, by the bold and simple process of declaring hostile legislative acts unconstitutional, or of asserting that the Supreme Court had original appellate powers of jurisdiction.

Already plans had been concerted by which the question of the unconstitutionality of the Georgia act rescinding the Yazoo land grant law was to be passed upon by the Supreme Court ;  we need hardly say again that John Quincy Adams was one of the attorneys later appearing in the open for the Yazoo claimants.  In the litigation over the Fairfax estate, Marshall’s own interests were involved ;  and, as we shall see, the final decision hung upon the point of whether the Supreme Court had the Constitutional power of deciding a case over the heads of a State Court.  These cases were but two of a large number affecting fraudulent claims of immense value, and doctrines of immeasurable importance to the ruling class.

For the particular work in hand, Marshall, it must be admitted, was the very best choice that could have been made.  In selecting his premises in his decisions, Marshall was transparently sophistical and unscrupulous, but once he had chosen those premises he pursued them to a logical finish the temerity of which must excite admiration.  Any doctrine or any subtle theory of law necessary to the justification of the aim in mind, ministered to his purpose, yet once started on his particular line of reasoning, he expounded it in the particular decision with an acuteness, lucidity and a conciseness of diction never as yet surpassed.  But when his different decisions are compared, they abound in evident subterfuges and the grossest contradictions.

Almost immediately after he became Chief Justice the opportunity was presented of establishing an enduring precedent that the Supreme Court held the power of declaring laws of Congress unconstitutional, and that there were vested rights which no law could abolish.

The Case of Marbury vs. Madison.

Under the act rushed through by the Federalists creating additional judicial offices, William Marbury and three others were appointed justices of the peace in the District of Columbia.  Jefferson, coming into office, instructed Madison, as Secretary of State, to refuse to issue their commissions.  Marbury and his associates, moved by their counsel, in December, 1801, in the Supreme Court of the United States for a mandamus.  But it was not until two years later that Marshall handed down his decision.  He did not dare, at that time, openly to defy the administration by mandamusing the Government.  This, if set as a precedent, would be a doubleedged weapon.  But by the following serpentine line of reasoning Marshall accomplished the adroit twofold purpose of seating the justices, and of asserting the right of the Supreme Court to declare laws unconstitutional :

He decided that Marbury’s appointment was not revokable ;  that when made it “ vested in the officer, legal rights, which are protected by the laws of his country.”  To withhold the commission was an act not warranted by law, but was violative of a vested legal right.  Now the case was brought under an act of Congress authorizing the Supreme Court to issue writs of mandamus to any person holding office under the authority of the United States.  To mandamus to deliver a paper, Marshall held, was the same as to institute an original action for that paper.  The authority thus given to the Supreme Court, Marshall decided, was not warranted by the Constitution ;  it was repugnant to the Constitution, and therefore void.  It was emphatically, he said, the duty of the judicial department to say what the law was.¹⁷  Thus, while ostentatiously setting out to placate his opponents, the Republicans, by declaring a Federalist law invalid, he cleverly made that the cover for seating Federal judges, and for arrogating the right of the Supreme Court to void laws of Congress.

The Process of Restoring Confiscated Estates.

This done, the next undertaking was to make judicial constructions under which confiscated estates of Tories would be restored by court order.  It was a move, however, which had to be done very slowly and discreetly ;  public feeling was still intensely irritable.  One case after another was taken up, the decision in each of which was so devised, as inevitably to supply cumulative precedents for the validation of Marshall’s own claim to the Fairfax estate.

The first case was that of M’Ilvane vs. Daniel Coxe’s Lessee, argued before the Supreme Court, in February, 1804.  The action involved the leading question as to whether those who had gone over to the British in the American Revolution and who had become British subjects, or were aliens, could inherit lands in the United States.  This was a question of great importance ;  it had never been decided either by the Supreme Court of the United States, or by the New Jersey courts.

Daniel Coxe had been born in New Jersey while it was a British colony, and had joined the British at an early stage of the Revolutionary war.  In 1778 or 1779 he had been attainted in Pennsylvania for treason, and his estate confiscated by specific proceedings.  At the conclusion of the war he had emigrated to England.  There he had become an acknowledged British subject, and had received a pension from George III for his loyalty.  And there, too, he had, as a British subject, carried on trade and commerce.  In 1802, a relative of his died in New York, leaving an estate in New Jersey.  Daniel Coxe, as next of blood, claimed right of inheritance.  Another relative next of blood after Coxe excepted to Coxe as an alien, and falling back upon the fact that she was an American citizen, claimed the estate in her own right.

In his report of the argument in this case Cranch’s footnote reads :  “ Present, Cushing, Paterson, Washington and Johnson, Justices.  The Chief Justice did not sit in this case, having formed a decided opinion on the principal question, while his interests were concerned.”¹⁸

A peculiar circumstance of this case was that although it was very elaborately argued before the Supreme Court in 1804,¹⁹ there was no decision until four years later.  Why this long delay of four years ?  The Supreme Court, then, was not clogged with excess of cases.  Were the Justices apprehensive of public feeling ?

Impeachment Action Against Associate Justice Chase.

Perhaps, also, the fact that the House of Representatives, in 1804, had irreverently brought impeachment proceedings against Associate Justice Samuel Chase had its sobering weight.

The accusations of “high crimes and misdemeanors” with which Chase was charged were sundry.  One charge was that he had acted in a manner “ highly arbitrary, oppressive and unjust ” in the case, in 1800, of John Fries, accused of treason under the Alien and Sedition laws ;  that he had sought to prejudice the jury against Fries ;  and that in consequence of Chase’s “irregular conduct,” Fries was unjustly sentenced to death.  Another charge was that Chase had acted likewise with “manifest injustice, partiality and intemperance” in procuring the conviction of John Thompson Callender, who had severely criticized Jay and other judges and officials.²⁰  These, and other charges, it was widely recognized, were so well founded that the Adams administration had not dared to carry out the court’s sentence, but extended pardons.  The number of votes in the Senate favoring Chase’s impeachment lacked the constitutional two-thirds majority required, and he was let off by a strict partisan vote.  This is the only instance of impeachment proceedings against a Supreme Court Judge in the entire history of that Court.

With deciding upon the right of British subjects to hold and inherit estates, the Supreme Court of the United States still kept up a policy of cautious evasion.  This was again shown by the case of Lambert’s Lessee against Paine, coming up before the Supreme Court, in February, 1805.  This suit involved the question of whether a British subject, born in England in the year 1750, and who had always resided in England, could, in the year 1786, take and hold lands in Virginia by descent or by devise.  This note appears on the official record :

     “ Feb. 18.

This cause was again argued at this term by the same counsel before Cushing, Paterson, Washington and Johnson.  Marshall, Ch. J., having formerly been counsel for one of the parties, did not sit, and Chase, J. was absent.”²¹

The action concerned a Virginia estate of about six thousand acres of land, devised to George Gilmer, a British subject.  Each of the four Justices sitting²² handed down separate opinions.  The majority of the court said that by the will, Gilmer derived a fee in the land.  But every one of the Justices evaded the crucial question as to whether an alien could hold land.  “ As the majority of the court,” read Justice Washington’s opinion, “ is in favor of the defendant upon the construction of the will, I do not think it necessary to say anything upon the doctrine of alienage, as [he significantly added] that question may possibly come on in some other case, in which it must be decided.”²³

The Holland Company’s Frauds Validated.

But if the Supreme Court was careful to dodge the main issue as regarded aliens until the receding years allayed public agitation, it judged the time propitious for validating the title to the vast areas of land fraudulently obtained by the Holland Company, and by other corporations.

In previous chapters we have outlined the history of the origin of the Holland Company, in the precedent operations of which Justice James Wilson, Robert Morris, John Nicholson and others were so prominent.  The great agitation continued among the settlers over the disposition of millions of acres of land in New York and Pennsylvania to these politicians, who in turn, sold them to a group of Holland capitalists.  The Pennsylvania legislative act of 1792 had ordered the public land sold in small areas, for actual settlement to be made within two years.  But this law was grossly evaded and violated by Wilson, Morris and company.  How the law was evaded, so that a few politicians were able to grasp enormous areas, was related by Judge Huston of the Supreme Court of Pennsylvania.

“. . . Young men,” he wrote, “ in the face of the law have gone from home twenty or one hundred miles, commenced a dozen settlements in one month, and next year worked a week on each, and so on.  This, and everything like it, is not as directed by law.  And again, holders of great numbers of warrants have hired the same man to make, and, in their language, to keep up, twenty settlements or so many of the tracts for which they had warrants. . . .

“ The owners of the warrants, and those who had settled without warrants, came early into collision, and on each side contended for a construction not warranted by law.  The grantees of warrants obtained patents, without even commencing a settlement, on certificates of two justices of the peace that they had been prevented by enemies ;  and the persons claiming by settlement, contended that warrants were void unless settlement commenced within two years from date of warrant.  The war raged during the whole of two years, or during a great part of it. . . .”²⁴

The authorities of Pennsylvania were goaded by public agitation into bringing action against the Holland Company.  The matter came before the Pennsylvania Supreme Court in March, 1800.  At the same time, on its part, the Holland Company applied for a mandamus to compel the land officers to issue warrants for surveys.  “ Can it be sufficient to say,” read the State’s argument, in part, “that the Holland Company have improved a great deal of the country, and are therefore entitled to hold what they have not improved ?  The spirit of monopoly was an evil against which the legislature meant to guard by dividing the territory offered for sale into single tracts, and restricting the right of purchase to a single tract.  It is true, that the connivance, of opulent speculators has evaded the legislative precaution ;  and instead of each settler being the owner of the tract on which he resides, he is the mere instrument of an association of foreigners (who never visited, and probably never will visit, America) to obtain for their emolument the lands which the State had offered for sale, with very different views of policy and benefit. ...”²⁵

The Supreme Court of Pennsylvania decided that the settlements must be made according to law, or no title passed.  But the Holland Company kept on inspiring riots and bloodshed, and fabricated a test case in the Supreme Court of the United States for the validation of its title.  This case came before that court, in February, 1805, under the form of the action of Huidekoper’s Lessee vs. Douglas.²⁶

Attorney-General Kean, for the State of Pennsylvania, contended that the object of the Legislature was the settlement, not the sale of the lands ;  that the purpose was to get settlers so as to form a barrier against the Indians.  He argued at length for a forfeiture of the Holland Company’s title.  Responding, the Holland Company’s counsel brought up the ancient pretext (which we have noted in the case of the Loyal Company, in Chapter I) that the Indian wars prevented the settlement and improving of the lands within the required two years.

Chief Justice Marshall’s decision was characteristic.  Entirely passing over the all-important and essential fact that millions of acres of the very finest lands in western Pennsylvania were unlawfully acquired and monopolized by a small syndicate of Holland bankers and merchants, he decided that the excuse offered was good.  In brief, he held that when Indian wars²⁷ prevented prompt settlement, there was a release from the fulfillment of conditions demanded by law, and that a warrant gave a vested right.  Attention should be given to this decision ;  in this he held that a contract was only conditionally and relatively a contract ;  we shall come across other important decisions in which, for the same purposes of justification, he or his colleagues decided that a contract must be construed strictly and absolutely.  And by this decision he set another precedent, as we shall see, by which, under the same pretext, huge areas of the richest lands in California and elsewhere were later grasped by a few capitalists.

This decision riveted the hold of the Holland Company upon large areas of land, and upon large numbers of settlers, in both Pennsylvania and New York.  So much oppression resulted from the Holland Company’s exactions, that Governor DeWitt Clinton, of New York, in a message to the Legislature, on March 1, 1820, urged that the State buy the rights of the Holland Company from the bankers, the Willincks, of Amsterdam, Holland.  This suggested purchase, he wrote, would “relieve a considerable portion of our population from the evils from which they are suffering,” and would also do away “with an influence which has been injuriously exercised.”  There was great excitement, the message reported, among the yeomanry, and it was dangerous, Governor Clinton declared, to allow so extensive a domain under foreign authority.

“ In this State,” the message went on, “ there are, west of the Genesee River, from eighty to one hundred thousand people, subject to the will of the Hollanders for their peace and happiness. . . . By the existing laws of the State, even their improvements (in these times of the absence of all money), are liable to be sold at auction for a trifling debt, arising from the ordinary credits in life, or a lawyer’s or a physician’s bill.”  Similar conditions, it may be interposed, prevailed in Pennsylvania.  Governor Clinton’s message stated that the Holland Company owned nearly 2,000,000 acres in New York, and also held between four and five millions of dollars in good bonds, covenants and mortgages.²⁸

Governor Clinton’s proposal was not acted upon.  The Holland Company, says Roberts, “ sold farms on long time to those that would improve them, at prices that seemed low, but when a succession of bad crops came or domestic affliction used up the income, they proved to be onerous. . . . In 1836 the people of Chautauqua County were disturbed by rumors that the liens given by them to the Holland Company were to be enforced, and the land office with its records was destroyed by a mob.  In Batavia, Genesee County, a threatened attack on the land office was prevented by the organization of the citizens.”²⁹  The “ citizens ” referred to were armed hirelings employed by the Holland Company.  Shortly after this, J.J. Vanderkenip, general agent of the Holland Company in Philadelphia, discontinued the company’s office at Batavia.³⁰  A petition of the inhabitants living on the Holland Company’s domain was submitted to the Legislature alleging, by a recital of the facts, that the Holland Company’s title was invalid, and demanding ejectment ;  the Attorney-General was directed to make an inquiry.³¹

The Holland Company decided that it was a wise move to sell its property to American capitalists, and did so.  In Pennsylvania, the Holland Company’s ownership was likewise accompanied by a train of disturbances and litigations, ending in its further enrichment by the sales of land to native capitalists.  The huge sums of money invested by the Dutch capitalists in canals and railroads were the sums that had been wrung from American settlers during the more than forty years of the Holland Company’s sway.

These details are given for the purpose of showing some of the results of Chief Justice Marshall’s decision.

The New Associate Justices.

The three Associate Justices of the Supreme Court of the United States appointed by President Jefferson, during his two terms of office, were all associated either with the landed or banking class.  Of all the men ever sitting in that court, William Johnson, of South Carolina, appointed in 1804, was one of the very few distinguished, on the whole, for his opposition to certain notorious land decisions.  He was more allied with the banking interests ;  his brother Joseph was president, front 1818 to 1823, of the Charleston (S.C.) Branch of the Bank of the United States.  Of the truly enormous corruptions and consecutive frauds and thefts of this bank, details are given later in this work.

In the appointment in 1807, of Brockholst Livingston, as an Associate Justice, the long-potent Livingston family secured another successive representative.  A son of William Livingston, Brockholst Livingston succeeded his father’s associate, William Paterson, who died in 1806 while visiting his daughter, the wife of Stephen Van Rensselaer.  William Todd, Chief Justice of Kentucky, also appointed an Associate Justice of the Supreme Court by Jefferson, was allied with the landed class ;  and his second wife, to whom he was married in 1811, was the widow of Major George Washington, a nephew of General George Washington.  She was also the youngest sister of the wife of James Madison.  Todd, says the biographical account of him in the Supreme Court records, was a great authority on land laws.  The account further says that “although a Republican, he steadfastly supported the Constitutional doctrines which Mr. Chief Justice Marshall promulgated.”³²

This was the composition of the Supreme Court bench when, in February, in 1808, after four years’ postponement, the decision in the case of M’Ilvaine vs. Coxe’s Lessee, was handed down.  Decrepit Justice Cushing, seventy-six years old, and so valetudinarian as to excite pity, wrote the court’s opinion.  So palpably remarkable were the grounds of the decision that it was received with derision ;  it was one of those decisions that, not wrapped in technicalities, could be understood by the layman.  Daniel Coxe, it held, could not by any voluntary act of his, renounce allegiance to the State of New Jersey.  He was, the decision read, “ incapable of throwing off his allegiance to the State,” so long as the laws of New Jersey which had made him a subject of that State were in full force.  New Jersey, in 1776, was a sovereign State, and had a right to compel the inhabitants of that State to become citizens.  Therefore, a person living there until 1777, and then joining the British as a refugee, had a right to take lands by descent in the State of New Jersey.³³

The premises of this decision were so obviously ridiculous and fantastic that it would be superfluous to analyze them.  Nevertheless, the decision served the meditated purposes of ranking as a precedent leading up to the settlement of the Fairfax matter.  Likewise did the decision, rendered in the same month, in the case of Dawson’s Lessee vs. Godfrey.  Marshall absented himself when this decision was made.  This case dealt with the right of an alien born in England before the year 1775, and who always lived there, never coming to the United States, to take lands in Maryland which he had inherited in the year 1793.  He could not take those lands, the Supreme Court decided, because the inheritance antedated Jay’s Treaty by a year.³⁴

Then followed Marshall’s decision, in 1809, in the case of Taylor vs. Brown validating the fraudulent possession of surplus land not included in the original patent.  In another and weighty respect, too, this decision took rank as a precedent, for what Marshall actually decided was that when the person to whom a stated area of land had been granted, appropriated more than the patent contained, he had a vested right in that illegal seizure.  Certainly, this was, a very remarkable construction justifying land thefts ;  here are Marshall’s own words :

“ It is a fact of universal notoriety in Virginia not only that the old military surveys, but that the patents of that country generally contain a greater quantity of land than the patents call for.  The ancient law of Virginia notices this fact, and provides for the case.  It prescribes the manner in which this surplus may be acquired by other persons :  and it is worthy of notice that the patentee must himself reject the surplus before it can be acquired by another, and after having rejected it, he has the election to allot it in such part of his patent as he pleases.”³⁵

The facile way was now prepared, the time was accounted ripe, and accordingly in the next three years two momentous decisions were rendered in cases both of which sprang from personal interests.  These decisions equally, in different ways, asserted the all-embracing, omnipotent power of the Supreme Court of the United States.  In the one case, the Supreme Court successfully demonstrated its power of annulling legislation considered to be an impairment of the obligation of contract, and it held that it had original powers of appellate jurisdiction, in deciding the other case.  The first of these cases was that of the Georgia legislative act rescinding the corrupt grant of 35,000,000 acres.  The second case dealt with the Fairfax estate.  Yet these circumstances, throwing such light upon the subterranean origin of memorable decisions, are by no means all ;  attending the actions were a series of other exceedingly astonishing and interconnected circumstances, the details of which are related in the next chapter.

How Marshall Ruled the Supreme Court.

But before entering upon the further narrative, it will be advisable to give some adequate idea of the arbitrary and domineering manner in which Marshall ran the Supreme Court.  Before Marshall’s appointment, the Supreme Court followed the English practice, under which each judge who sat in a cause, gave an opinion whenever he thought there was occasion for it ;  but in general, those judges who presided at the circuit declined to sit in bane, except in a case where the judges were equally divided in opinion.

Under Marshall (who had argued but a single case in the Supreme Court of the United States before he became Chief Justice), this practice, Shirley says, “ was rooted out, so far as his influence extended ;  the judges reheard the causes which they had decided at the circuit ;  the practice of giving individual opinions was repressed ;  the practice became general of making one judge ‘ the organ of the court,’ of virtually assigning causes, and of taking them home for the purpose of writing up opinions in vacation ;  and of having an opinion written by a single judge as the opinion of the court, when the judgment received the assent of but three, and sometimes two, of the judges, and the reasoning of a less number.  This vicious practice occasioned great dissatisfaction.

“ The primitive court [Supreme Court of the U.S.] consisted of five judges.  It was increased to six, and afterward to seven.  For years it was necessary for two of these judges, in general, to ride the circuit together ;  not infrequently, after the accession of Marshall, but four judges held the general term at Washington, and constituted the court when many important causes were assigned.  Two of the judges were aged and infirm, and one of them, for years before his death, was so superannuated that he practically left his circuit, a most important one, to take care of itself, and was a nonentity at Washington.  The new chief [Marshall] had, from his acknowledged ability and force, and weight of character, and from his tact and diplomatic skill, great influence with his brethren.  When an occasion required, he was an adept in ‘ patching up’ compromise judgments and opinions.”

Continuing, Shirley significantly relates that Marshall sometimes rendered decisions as being those of a majority of the court, “ without being as careful as a discreet judge ought, to find out whether his opinion was that of a majority or minority of the court.  In Rose vs. Himely, IV Cranch, 41, he delivered the leading opinion, and ordered the judgment of the Circuit.  Court to be reversed, etc., when in fact but a single judge agreed with him, as afterwards appeared in Hudson vs. Guestier, VI Cranch, 281.

“ In one of the cloud of opinions delivered by Marshall at the trial of Aaron Burr, he admits that he made a mistake of a similar character in Bollman’s case.  In this way, two judges practically became a majority of six, and three a majority of seven.

“ The cases referred to were by no means the only instances of a similar kind, nor could they fairly be attributed to the press of business.  These facts were open secrets in narrow circles.  This intensified the dissatisfaction. . . .”³⁶

While virtually declaring what the laws of the country should be ;  Marshall was thus a lawless dictator, vesting in himself more powers than most potentates held.  This manipulation of his of the Supreme Court will assist in elucidating the facts now following.

1 Of his personal appearance, William Wirt wrote :
    “ He is tall, meager, emaciated ;  his muscles relaxed, and his joints so loosely connected as not only to disqualify him apparently for any vigorous exertion of body, but to destroy everything like harmony in his air or movements.  Indeed, in his whole appearance and demeanor — dress, attitudes, gesture, sitting, standing or walking — he is as far removed from the idolized graces of Lord Chesterfield as any other gentleman on earth.”  When holding his circuit court in Virginia, it was Marshall’s habit to travel in an antiquated and rather disreputable gig.  To those who did not know him as the famous Chief Justice, his shabby dress and idiosyncracies of personality frequently led to queer misunderstandings.

2 In Washington’s Va. Reports, Vol. I : 227, the name is given as Bryant Martin ;  in all other court reports it is given in full as Thomas Bryant Martin.

3 For example :  Lord Fairfax, in 1741, sold 243 acres to James Crap.  Claiming that Crap did not pay the office fees, Fairfax declared the land forfeited.  In 1780, Fairfax, through his agent, sold the same land to Martin Pickett.  Crap’s assignee and Pickett contested for title to the land.  John Marshall, as Pickett’s attorney, won the case.  Chief Justice Edmund Pendleton delivered the court’s opinion.

4 See, “ Virginia Revised Statutes of 1783,” Chap. 13, Sec. 6, p. 98.

5 Call’s Reports (Court of Appeals of Va.), Vol. IV: 66.

6 Call’s Reports, Vol. IV: 69.

7 See, Munford’s Reports (Supreme Court of Appeals of Va.), Vol. I: 218.

8 Houghton’s “ Lives,” etc., 443-444,

9 Ibid.

10 Dallas’ Reports, Vol. III: 305.  In a footnote, Justice Chase said that the matter was “of great moment ;  and ought to be deliberately and finally settled.”

11 “ Revised Code of the Laws of Virginia” (Edition of 1819), Vol. I : 352.

12 Ibid., 353.  This letter is given precisely as it appears in the records.  See, also, “ The Statutes At Large of Virginia, etc., 1792 to 1806,” Vol. II: 22-23.

13 “ Revised Code of the Laws of Va.”  (Edition of 1819), Vol. I : 353, and “The Statutes At Large of Va., etc., 1792 to 1806,” Vol. II : 23.

14 Munford’s Reports, etc., Vol. I : 232.

15 Ibid.

16 The physical characteristic of Marshall most forcibly impressing spectators was his extremely small head, which was all the more noticeable in contrast with his tall, gaunt frame.  His eyes were black and brilliant, and his face expressed obduracy and tenaciousness.

17 Cranch’s Reports, Supreme Court of the United States, Vol. I: 176.  In the very act of arrogating to themselves the supreme and final say in government, the politicians on the Supreme Court bench had the assurance to advance the pretension that they were safeguarding popular liberties.  “That the people,” read an extract in Marshall’s decision, have an original right to establish, for their future government, such principles, as, in their opinion, shall most conduce to their own happiness, is the basis on which the American fabric has been erected.”  This was a supererogative bit of claptrap.  The effect of Marshall’s decision was to make three men (in a body of five) the sole and irresponsible dictators of what laws should stand, and what should not.

18 II Cranch, 280.

19 The argument is reported in full in II Cranch, 280-336.

20 “ Report of the Trial of the Hon. Samuel Chase, One of the Associate Justices of the Supreme Court of the U.S., Before The High Court of Impeachment Composed of The United States Senate,” etc.  Published at Baltimore, 1805, pp, 9-11.

21 III Cranch, 117.

22 The Supreme Court was now composed of six members.

23 III Cranch, 183.

24 See, Judge Huston’s historical review of the controversy in Watts’ Reports (Supreme Court of Pa.), Vol. I: 70-109.

25 Case of Commonwealth (of Pa.) vs. Tench Coxe, Dallas’ Reports (Supreme Court of Pa.), Vol. IV: 195.

26 See, III Cranch, 1-73.

27 These wars were caused by the long-continuing and systematic debauching and swindling of the Indian tribes by the whites.  The persons complaining that Indian hostilities prevented prompt settlement, were the very persons whose practices incited those hostilities.  Marshall knew this.  Of the many contemporaneous accounts of the treatment of Indians, we will instance that message of Governor Daniel D. Tompkins, of New York, to the Legislature in 1812.  “. . . It is not to be disguised,” he wrote, “ that worthless and unprincipled white persons, availing themselves of the ignorance of the Indians, and of their horror at becoming the objects of punishment, by laws which they cannot comprehend, wantonly and boldly violate their individual possessions and national domain.”  These whites, said Tompkins, corrupted and debased the Indians’ propensities and habits, intruded upon their lands, and defied the law.  (New York Senate and Assembly Journals, 1812, p. 6.)  It may be added that large numbers of the whites referred to were agents for land speculators and traders.

28 Journal of the [N.Y.] Assembly, 1820: 581-583.

29 Roberts’ “ New York,” Vol. II : 623.

30 N.Y. Assembly Doc. No. 317, 1839.

31 N.Y. Assembly Doc. No. 224, Vol. III, Assembly Docs., 1837.

32 See, Peters’ Reports, Supreme Court of the United States, Vol. XIII: 7 and 8.  This account describes Justice Todd as very kind to those in whom he was interested.  It says that after the Kentucky Legislature had repealed an act granting a pension to Justice Muster, that Todd personally pensioned Munter for life.

33 IV Cranch, 209-215.  At the very time that this decision was handed down, the United States Government was contesting the claim of the British Government that Great Britain had the right to impress sailors of British birth, no matter on what ships they were in service.  The British Government proceeded upon the dictum that “once a British subject, always a British subject,” and the United States Government as vigorously denied the force of that dictum.  This dispute, involved as it was with other questions arising from capitalist struggles for commercial expansion, was one of the causes of the War of 1812-1815.  Marshall’s decision was good law according to British contentions.

34 IV Cranch, 321.

35 V Cranch, 249.

36 “Dartmouth College Causes” (Edition of 1879), pp. 377-378.