HISTORY OF THE SUPREME COURT
OF THE UNITED STATES
THE FURTHER COURSE OF THE SUPREME COURT
UNDER MARSHALL
From the time of the Fairfax decision to that of Marshall’s decease ; covering a period of a score of years, four important lines of action were determined by the decisions of the Supreme Court of the United States. These were :
1. The intrenchment of the doctrine that a grant or allowance of privilege to a corporation was an irrevocable vested and perpetual right of property.
2. The extension of the principle of a widening of National authority, and further concentration of power in the National Government.
3. The perpetuation of negro slavery.
4. The validation of vast fraudulent private land claims comprehending millions of acres of land in Florida and in the Louisiana Purchase.
The Meaning of Successive Decisions.
The common belief that the first of these was originally settled by the noted Dartmouth College decision is incorrect. We have seen in detail, how, in the case of Fletcher vs. Peck (that collusive suit for the validation of the act bribed through the Georgia Legislature making a vast grant of 35,000,000 acres), Marshall decided that a legislative act was a contract incapable of annulment by subsequent legislation. That decision was the first precedent. The case of New Jersey vs. Wilson, decided two years later, was the second. This case, admittedly bearing unfailing signs of collusion, was decided likewise by Marshall. He held that in passing a certain act, the Legislature had forever contracted away the right to tax certain private lands. The legislative act, so he decided, was a “contract,” and as such came within the scope of that clause in the Constitution prohibiting the impairment of the obligation of contracts.1
Thus, a legislative grant or franchise was construed into being the same as a contract between private individuals. In Marbury vs. Madison we have seen Marshall, in the very act of annulling an act passed by Congress, ostentatiously announcing that the Republic was founded on the principle of rule by the people. The vaunted theory was that the people were sovereign, and that legislatures were their plastic representatives to transform their will into law. If the people were sovereign, and legislatures their instruments, there could, according to the logic of that theory, be no limit to the legislative power of revoking any law found to be injurious to the common welfare. But Marshall, while dexterously using that theory as a pretext, demonstrated that the Supreme Court of the United States was the sovereign, omnipotent power.
Interpreted into plain language these decisions meant that the living were to be ruled in perpetuity by the acts of the dead ; the skeleton was to have his grip on the animate ; the deeds of the rulers of past generations were to be engrafted in the authority of law over all future generations.
It mattered not how much certitude of fraud and bribery in particular, and turpitude in general, lay originally behind definite acts or laws. The moment those laws became officially engrossed and recognized as formally adopted, they were invested with the full sanctity of perpetual law. The essence was nothing ; the form was everything.
That laws proved to be engines of fraud and spoliation for the benefit of the favored few, and causes of oppression to the mass, was beside the point in the majestic eye of the Law. What if, supposing special acts to have been honestly enacted, they were self-evidently the archaic survivals of bygone times, utterly lacking adaptation to the conditions of the mass of newer generations ? These considerations were of no effect ; law, which is merely the register of the will of the group or class having the power to enact it, outlasts its creators : long after its authors have moldered in their tombs, and their very names have often become lost in the phantasmagoria of Time, their laws still stand, fresh, awful and commanding.
Overlooking the special personal interests of the judges, and appraising the vitals of their decisions as applied to the broader question of class interests and conflicts, it will be perceived that those decisions were harmoniously consonant with the varying necessities of the dominant class. A number of aggressive, acquisitive, predacious individuals in one generation seize property, or corruptly get grants and laws endowing them with immense property and mighty privileges. They become founders of a propertied aristocracy. By further laws and predatory schemes, their descendants enlarge their hereditary possessions, extend themselves as capitalists in multifarious ways, and by reason of their wealth, aggrandize themselves as the rulers of the land. They either hold the important political and judicial offices themselves, or they carefully select able instruments upon whom they can unreservedly depend.
To this fabric one final finishing touch was needed ; this was supplied by the Dartmouth College decision.
The Dartmouth College Case.
Concisely stated, the Dartmouth College case grew out of these circumstances : Dartmouth College, in New Hampshire, had been founded, in the year 1769, by a charter granted by Governor Wentworth, in the name of the Crown. The presidency of the college developed to be a sort of dynasty, the first president, Eleazer Wheelock, having before his death in 1779, appointed his son, John Wheelock, to succeed him. In about the year 1797, opposition to Wheelock manifested itself on the part of members of the board of trustees. A long factional struggle, part religious, and in part political, then set in to get control of the institution ; Wheelock was a Presbyterian, his enemies Congregationalists ; they were Federalists, and he was driven by force of circumstances into the opposite political camp. As Congregationalism was practically the established State church in New Hampshire, and as the Legislature was Federalist, Wheelock’s enemies were able to muster large strength. In 1809, they captured control of the board of trustees, and in 1815 summarily removed him from office.
But, in 1816, the anti-Federalists elected William Plumer as Governor of New Hampshire, and a Legislature of the same political cast. Acts were thereupon passed amending the charter of Dartmouth College. The number of trustees was increased from twelve to twenty-one, and a board of overseers was created for the purpose of exercising a veto power on certain acts of the trustees. The outcome of these legislative acts was the restoration of Wheelock to office, and the placing of his adherents in virtual control. The college was reorganized, and called a university.
The old trustees opposed to Wheelock brought suit in the New Hampshire courts to set aside the legislative acts on these grounds : That those acts were opposed to the general principles of government ; that they were contrary to various provisions of the State Constitution ; and that they violated the particular clause of the Federal Constitution forbidding legislation impairing the obligation of a contract. The highest New Hampshire court decided against the old trustees on every point.2 The case was then carried on appeal to the Supreme Court of the United States, but the only point involved in that appeal was that relating to the contract clause in the Constitution of the United States.3
Daniel Webster, himself a graduate of Dartmouth College, argued the case for the old trustees before the Supreme Court of the United States. Webster, as we have noted, married, after the death of his first wife, a daughter of Herman LeRoy, Whose acquisition, together with William Bayard and others, of large estates that they themselves acknowledged to have been originally secured by fraud, has been described in Chapter I. For many years, Webster was the regular attorney for the Bank of the United States, the flagrant corruptions of which are related in this chapter. He became the attorney for the immense fraudulent Mitchell land claim, which was later validated by the Supreme Court of the United States, and the details of which are also narrated in this present chapter. As a corporation lawyer, he was one of the most noted of his day ; he was counsel for a large number of miscellaneous corporations.
Did the Supreme Court Become Emotional ?
In his biographical work on Webster, Senator Henry Cabot Lodge says that, first of all, Webster adroitly appealed to the partisan prejudices of the Supreme Court. Mr. Lodge tells us that,
“ In the midst of all the legal and constitutional arguments, relevant and irrelevant, even in the pathetic appeal which he used so well in behalf of his alma mater, Mr. Webster boldly and yet skillfully introduced the political view of the case. So delicately did he do it that an attentive listener did not realize that he was straying from the field of ‘ mere reason ’ into that of political passion. Here no man could equal him or help him, for here his eloquence had full scope, and on this he relied to arouse Marshall, whom he thoroughly understood. In occasional sentences he pictured his beloved college under the wise rule of Federalists and the Church. He depicted the party assault that was made upon her. He showed the citadel of learning threatened with unholy invasion and falling helplessly into the hands of Jacobins and free thinkers.”4
Professor Goodrich, a spectator of the scene, wrote (according to Mr. Lodge’s quotation) that Webster, in the course of his argument, predicted great disaster for all colleges, and for the private rights of individuals, if the legislative acts of New Hampshire should be upheld. Goodrich tells how “ in broken words of tenderness,” Webster spoke pathetically of his attachment to the college, and how Marshall and other Justices were moved to tears.
If these accounts are correct, they throw a singular light upon the Supreme Court of the United States. Professing to live and move in an exalted atmosphere far above vulgar political currents and emotional considerations ; asserting, reasserting and reiterating that sentiment never entered into their deliberations and judgment, here some of them were being swayed by partisan prejudices and upset by emotional appeals. They who assumed the high proud role of being austere expounders of the law, unaffected by political passions or sentimental impressions, allowed themselves to be moved like an audience by an actor’s skillful pathos.
Where, then, was their boast that their only concern was with the cold business of applying the law ? Cases had been before them revealing that thousands of families had been peremptorily driven from their homes, and reduced to destitution, by the claims and exactions of land jobbers. But far from causing a moist eye on the indurated Supreme Court bench, those fraudulent claims had been justified and validated. The hard conditions burdening hundreds of thousands of laborers had never caused the flutter of the eyelid. The horrors of the slave traffic — abominations which would seem incredible were it not that so many reports attest them — instead of causing anguish, when the facts were frequently before the Supreme Court, were justified and their continuance allowed. But the prospect of an obscure endowed college, declining into disruption and adversity, so deeply excited their commiseration that they, forsooth, were “ moved to tears ” !
Those touching accounts, however, have a large element of fiction. The members of the Supreme Court were too old and too well seasoned not to penetrate acting when they saw it. As an orator, Webster was sonorously rhetorical ; and, as was the custom of the clay, he artistically, like Pitt, combined elocution with effective dramatic by-play.
The Justices’ Class Interests and Views.
But to believe that such transparent artifices influenced any of the members of the Supreme Court would be too far-fetched a reflection upon their intelligence. No such methods had been used in the Fletcher vs. Peck case, yet they had rendered a decision which was the progenitor of the Dartmouth College decision. Methods such as these were not necessary to influence Marshall, Story and other Justices. Marshall’s own varied interests were at stake, as well as those of his brothers and relatives, and in a vastly wider degree, those of the whole class represented by him. Story had his bank, the charter of which he had put through while Speaker of the Massachusetts House of Representatives. Many of Story’s friends, political associates and former clients, were owners of diverse corporation charters.
In fact, Story made no attempt to conceal his timocratic views that the property interests should dominate government. He openly avowed his opposition to giving the propertyless the right to vote.
This he did, in 1820, when he was a member of the Massachusetts Constitutional Convention. There he made an elaborate argument for a continuing property qualification for voters. Eulogizing the rich, and at the same time minimizing the danger from them, he appealed skillfully to the interests and prejudices of the majority of delegates.
His argument was directed against the proposition to change the basis of the Massachusetts Senate from valuation to that of population. The wealth of “ opulent and munificent citizens ... has spread itself into a thousand channels of charity and public benevolence.” It had “ reared temples to the service of the most high God,” etc., etc. “ My dread,” he exclaimed, “ has never been of the Senate, but of that multitudinous assembly [the insurrectionists] which has been seen within these walls, and may be again if times of political excitement should occur.” He pleaded further against “ an overwhelming representation ” of the propertyless.5
This speech, of an intensely class character, gives the clearest evidence of how Justice Story frankly exalted the supreme rights of property.
Similarly, Justice Brockholst Livingston had his ramifications of interests, and so had all of the other Justices. Some writers maintain that Story and Livingston had originally been opposed to deciding in favor of the old trustees of Dartmouth College, but that they had been gained over between the time that the arguments were made and the date of the decision in February, 1819.
In a sense, this might have been so ; if so, this point legitimately occurs : Webster was long a powerful figure in the Government. The Merchants’ Bank of Salem, of which Story was a director, and later president, secured the lucrative privilege of having large sums of Government money placed on deposit in its treasury. Was this privilege, so long continued, merely an altruistic expression of confidence in the soundness of Story’s bank ? If Story had exhibited himself so zealous in promoting the Congressional and legal ends of a case involving a vast land grant conclusively proved to have been obtained by fraud and corruption, would he nicely scruple at other matters ? Story, as we have seen, wrote before the Fletcher vs. Peck decision, when he was attorney for Peck, that he spent much of his time dining with the Supreme Court judges. Did Webster frequently dine with Story ? Shirley says that Webster was busy, through various intermediaries, reaching Chancellor Kent, who was a great friend of Justice Brockholst Livingston, and that Webster, in August, 1818, supplied Story with copies of his argument “ to be distributed by him to a portion of the judges.”6
Property Rights Prodigiously Extended.
When the decision was handed down by Marshall, all of the Justices concurred except Duvall, who dissented without filing an opinion, and Todd, whom illness kept away.
The grand essential of the decision was that corporate charters and franchises were contracts ; that they were vested property rights, in no way subject to repeal. This formidable doctrine, representing nothing but the say-so edict of a handful of men, has become, perhaps more than any other single decision, a constituent ingredient of judge-made constitutional law.
What James Wilson, Gouverneur Morris and other promoters of the Bank of North America had begun in the Federal Constitutional Convention of 1787, was now carried to its logical conclusion. From the Dartmouth College decision to the present day, capitalistic corporations have been enabled to expand to a boundless reach of privilege and power. A charter is a distinct property right ; being property, the mere legislative franchise right can be capitalized as tangible property. Upon this legislative right vast sums of stock have been issued, which stock is nothing more or less than a colossal, inexhaustible power of taxing the people on all necessities.
The Powers of the Government Expanded.
Two decisions now enlarged the powers of the National Government.
The first of these, in the case of McCulloh vs. the State of Maryland, was that by which it was decided that Congress had power to charter a national bank. The charter of the first Bank of the United States had expired in 1811. After several years of prodigious lobbying, the promoters of its successor, also called the Bank of the United States, managed to get a charter from Congress. This bank was opened on January 1, 1817 ; and it was of the Charleston, S.C., branch of this institution that Joseph Johnson, brother of Associate Justice William Johnson, was president from 1818 to 1823.
Benton says that when Nicholas Biddle, long the president of this Bank of the United States, had any communication to make for the influencing of the public mind, he invariably used John Quincy Adams as his intermediary. The means by which the second charter was obtained from Congress were not disclosed in official reports. But it appears from reports made by an investigating committee of Congress, in 1831, that a considerable number of members of Congress had been for years on the payrolls of the bank, and that large sums, under the guise of loans, had been given to editors and others for the influencing of public opinion.7
Benton cites a report made by a committee of stockholders of the bank in which the statement was made that when, in 1830, the Bank of the United States began its fight for a recharter, nearly thirty million dollars, in loans, not of a mercantile character, were made by Biddle.8 The beneficiaries of these loans were, according to Benton, editors, politicians and every approachable person of influence whose vote or voice was useful in the attempt to perpetuate this chartered monopoly. During his tenure of office, Biddle paid out the great sum of $1,018,000, for which no vouchers could be found,9 and misappropriations by other officers of the bank were common.
Taken by itself, Benton’s work might be open to the suspicion of being one-sided, since he wrote retrospectively as an intense partisan opponent of the Bank of the United States, and he had been one of its most bellicose antagonists during the series of years when the question of its chartering or abolition was one of the great political issues.
His statements, however, are not only borne out by the reports of that institution itself, and of committees of Congress, and court records, but even when he makes a general statement such as the securing by the Bank of the United States of, a State charter from the Legislature of Pennsylvania, in 1836, by bribery, he states the case correctly, although omitting to give the specific facts. In point of fact, according to the findings of an investigating committee appointed by the Pennsylvania Legislature in 1840, the Bank of the United States had corruptly expended $136,000 in Pennsylvania for a recharter.10 The fuller details of the continuing corruptions and frauds of the Bank of the United States belong more appropriately to a later chapter of this present work, where they are described at length. That decision, in 1819, confirming the constitutional power of Congress to charter a bank, may serve as a useful precedent in the project, now under way, on the part of the great financial magnates, to establish a Central Bank, with a complete monopoly of the money resources of the United States.
The second case in which the Supreme Court of the United States extended the authority of the National Government was in an action growing out of the various legislative acts of the New York Legislature11 granting a steamboat monopoly to Livingston and Fulton. The rights to this monopoly had passed by assignment to one Ogden, who had secured a perpetual injunction in the New York Court of Errors against Gibbons, a competitor and trespasser. In appealing to the Supreme Court of the United States, Gibbons was really fighting the cause of the whole commercial world which demanded that the legal monopoly be abolished.
Chief Justice Marshall in 1824 declared the New York acts void on the ground that they were repugnant to that clause of the Constitution authorizing Congress to regulate commerce among the several States.12 Coincident with the date of this decision, and as a result of it, was the rise of one of the largest present fortunes in America — the Vanderbilt fortune. Beginning in the steamboat business, Commodore Cornelius Vanderbilt, by a policy of enterprise, extortion and aggressiveness, and a huge system of blackmail,13 obtained the original millions enabling him later to become a railroad magnate.
Another Livingston Representative Appointed.
That the Livingston family, however, was still a powerful factor in National politics was shown by the appointment of Smith Thompson, of New York, to succeed Brockholst Livingston (whose seat had become vacant in 1823), as an Associate Justice of the Supreme Court of the United States. Thompson had studied law with Chancellor Kent, that noted expounder and defender of the all-pervading and dominating rights of property as opposed to those of human life. Thompson had married into the Livingston family,14 and during the decades of his career as a politician in New York, he had represented the Livingston family’s interests and aims. Thus we see that from the time of the organization of the Supreme Court of the United States, the Livingston family had four direct or related representatives on that bench, in the persons of John Jay, William Paterson, Brockholst Livingston and Smith Thompson. It was virtually a succession of the Livingston dynasty.
Marshall Legalizes the Slave Traffic.
By this time, the question of negro, or chattel, slavery was assuming acute proportions. A case came up before the Supreme Court of the United States, in 1825, which gave that court the opportunity to pronounce slavery a legal institution. This was the case of the Antelope, the facts of which were :
A privateer, called the Columbia, sailing under a Venezuelan commission, had entered the port of Baltimore in 1819. There, its captain had clandestinely taken on a crew of thirty or forty men. The officers and most of the crew were United States citizens. Proceeding to sea, the captain hoisted the Artegan flag, and renamed the ship, the Arraganta.
The ship, fully armed, then went to the coast of Africa to prey upon slavers. Off the coast of Africa, the Arraganta captured an American vessel, the Antelope from Bristol, Rhode Island, from which ship twenty-five negroes were taken. The Arraganta also captured several Portuguese vessels, and a Spanish ship, all filled with negroes torn from Africa. The Arraganta and the Antelope then sailed together to the coast of Brazil. There the Arraganta was wrecked, and her captain and most of the crew were made prisoners. The remainder of the crew, together with the guns and other armament of the Arraganta, were transferred to the Antelope. Captain John Smith then renamed the Antelope the General Ramirez. In the hold of this vessel were all of the negroes that had been captured by the privateer, the Arraganta.
Smith’s object was to sneak into some port and sell the slaves. But while the slaver was hovering near the southern coast of the United States, she was sighted by the U.S. revenue cutter Dallas, captured, and taken to the port of Savannah for adjudication. At the time of her capture, about two hundred and eighty slaves were found on board ; at least a third more had died from the cruelties of the voyage.
When the ship arrived at Savannah, four different claimants came forward. Both the Portuguese and the Spanish Vice Consuls claimed the ownership of the negroes. Captain John Smith also put in his claim as having captured them jure belli. The fourth claimant was the United States Government, which demanded that they be surrendered because of their having been transported from Africa in violation of the laws of the United States. The Government maintained that they were entitled to their freedom by the laws of nations.
The lower court dismissed Smith’s claim ; as a matter of fact, Smith was only acting for an American capitalist, engaged in the slave trade, who did not dare avow himself. The claim of the Government was also dismissed, except as to that portion of the negroes which had been originally taken from the Antelope. The remainder of the negroes were divided between the Spanish and Portuguese claimants. This was the state of the case when it came up on appeal before the Supreme Court of the United States.
The Doctrine of Acquiescence Again Applied.
Chief Justice Marshall began his decision with his usual concession of regard for public sentiment and proprieties. The slave trade, he said, was abhorrent. That, he went on, “ it is contrary to law of nature will scarcely be denied. That every man has a natural right to the fruits of his own labor is generally admitted ; and that no other person can rightfully deprive him of those fruits, seems to be the necessary results of this admission.
“ But,” he went on, with a sudden and incongruous line of reasoning, “ from the earliest times war has existed, and war confers rights in which all have acquiesced.” The query can here be interjected : To what war did Marshall refer ? The primitive negro tribes of Africa were not warring on any nation ; even the most distorted imagination could not conceive the idea of an aboriginal people armed with clubs making war on nations equipped with battleships and other modern implements. What actually was happening was the invasion of Africa by gangs of heavily-armed desperate whites, in the hire of capitalist slave traders, forcibly tearing away helpless negroes to sell them as slaves, if, perchance, they survived the brutal rigors of the long voyage to the slave marts.
Mr. Key, counsel for the Government in this case, had pointed out in his argument, “ Slaves are no longer acquired merely by capture in war, or by trade ; but free persons are seized and carried off by their traders and their agents. Wars are instigated by them for the mere purpose of making slaves. The persons enslaved are clandestinely brought away, under circumstances of extreme cruelty, aggravated by the necessity of concealment, and smuggled into every country where the cupidity of avarice creates a demand for these unhappy victims. ...”15 Loaded down with chains, badly fed, huddled together on the slave ships, many of them swept away by disease or cruelty or change of climate — this was the fate of tens of thousands of negroes, snatched from their native land. And this is what Marshall accepted as “war” !
Here, too, we see Marshall justifying the horrors of the slave trade with that identical doctrine of acquiescence that he had advocated, as an attorney, thirty-eight years previously, in pleading for the validation of the Fairfax estate, admittedly obtained and held by fraud. “Among the most enlightened nations of antiquity,” his Antelope decision read on, referring to the rights of victors, “one of these was, that the victor might enslave the vanquished. This, which was the usage of all, could not be pronounced repugnant to the law of nations, which is certainly to be tried by the test of general usage. That which has received the assent of all, must be the law of all.”
“Slavery, then,” Marshall continued, “has its origin in force ; but as the world has agreed that it is a legitimate result of force, the state of things which is thus produced by general consent, cannot be pronounced unlawful.”16
After reverting to the usage of the ruling classes of more savage ages for precedents, Marshall, knowing that these grounds would be fiercely attacked, proceeded ingeniously to qualify himself.
Although, he went on, the old harsh law of war had been exploded, and war was no longer to be considered as giving a right to enslave captives, yet “Africa has not yet adopted these principles.” So far as the test of international law went, “it is decidedly in favor of the legality of the trade.” For nearly two centuries the slave traffic, he concluded, had been carried on without opposition and without censure. This was a glaring falsehood ; nearly all the European nations had begun to outlaw the traffic as piracy, and Congress itself had passed laws aimed at the slave traffic.17 It was to circumvent those very laws that the slave traders placed their final expectations in the Supreme Court of the United States. “ A jurist,” Marshall ended, “could not say that a practice thus supported was illegal, and that those engaged in it might be punished, either personally or by deprivation of property.”18
The widening economic conflict between the capitalists of the different sections over slavery, was exactly reflected in the Supreme Court of the United States. In Massachusetts and Rhode Island where cheap, so-called free white labor was used, the owners of the mills, profiting richly, were definitely committed to that system, and more and more were aligning themselves against the expensive, archaic chattel slavery system.
By 1830, according to official statistics reproduced in Davenport’s Gazetteer for the year 1833, there was not a single slave in Maine, New Hampshire, Vermont and Massachusetts, and very few in other Northern States. But of the entire number of 2,010,436 slaves in the United States in 1830, Virginia had the greatest proportion of any State ; it held 469,724 slaves within its borders.
The State of Virginia, in fact, was a negro-raising region for other States. In his “ Rise and Fall of the Slave Power in America,” Wilson relates that the breeding of slaves in Virginia for the domestic slave traffic became so enormous that in 1836 it was estimated that the number sold from the single State of Virginia was 40,000, yielding a return of $24,000,000. Thus we clearly see Marshall’s decisions exactly representing the economic interests of his State and section. He, himself, as we have seen, was a slave owner ; he had his agricultural estates, and he owned a large residence which he had built, surrounded by spacious grounds, on Shockhoe Hill, in Richmond. On the other hand, Story’s attitude toward negro slavery was generally consonant with that of his native State of Massachusetts, where there were no negro slaves, but certain of the shipowners of which profited from the African slave trade.
This the South, being an agricultural country, filled with anachronistic views of past ages, and mostly provincial in character, neither understood nor saw, although as far back as the eighteenth century there were a few like Robert Carter, of Virginia, who clearly perceived that the negro slave system could not compete in efficiency or inexpensiveness with white labor. Added to the views growing out of the economic interests of the Northern capitalists, was a sincere agitation for the restriction of slavery or the emancipation of the slave. This movement had no concern with factory interests or profits, but was moral in its nature. Its advocates were impelled by an humanitarian spirit, and were indomitable in preaching it, often coming into collision with an inimical display of mob passion.
The “Plattsburg ” Case.
Associate Justice Story faithfully represented the views and interests of men of capital of his section. On all other issues, affecting questions of property, he and Marshall cohered ; he (as he admitted) docilely accepted Marshall’s lead, and Marshall’s construction, not of what law was, but of what the law should be. On the issue of slavery, however, they differed, Story pronouncing himself opposed to negro slavery.
In the case of the Plattsburg, Justice Story had his opportunity to express himself. At least, we take his decision on its face value, although the Supreme Court had a way of continuously playing politician, and after handing out a noted decision bound to serve as a leading precedent, would seek to allay strong criticism in various quarters by rendering a radically different decision in another, and less-important, case. Not one of the members of the Supreme Court had been other than a chronic politician ; when placed on that high bench most of them were well along in years, and irreclaimably addicted to politics, by nature and choice as well as by interest.
The Plattsburg was an American vessel, registered at Baltimore. That city, it may be remarked, was one of the most active of slave traders’ centers ; capitalists of great standing and large and varied interests were concerned in the traffic and their chief attorney, before the Supreme Court of the United States, at this time, was, as we shall see, none other than Roger B. Taney, Marshall’s successor as Chief Justice.19
The Plattsburg, in 1819, cleared the port of Baltimore ostensibly for St. Thomas, West Indies. But she dropped anchor down the Chesapeake Bay, “and afterwards (if the witnesses are to be believed), some grape, cannister and round shot were taken on board, and, on stowing them away, a barrel of irons, or handcuffs, was discovered, which was not contained in the manifest of the cargo.”20 The Plattsburg then went to St. Jago de Cuba, where she discharged a cargo that had been taken aboard at Baltimore for the sole purpose of lulling suspicions. From St. Jago de Cuba she sailed straight for Africa, to engage in the slave trade.
Justice Story Denounces Slavery But —
Caught red-handed, the Plattsburg, after capture, was condemned at the port of New York. That condemnation Justice Story affirmed. “ This,” he said (thereby directly contradicting Marshall’s assertions in the Antelope decision, rendered in the same year), “ is not the case of an ordinary trade, where no disguise is necessary or useful. It is the case of a trade prohibited to American citizens under very heavy penalties, penalties which have since been aggravated to the infliction of capital punishment. It is a trade odious in our country, and carries a permanent stain upon the reputation of all who are concerned in it, and is watched by the severest vigilance of the Government. If carried on at all, it must, therefore, be carried on by Americans, under the disguise of foreign flags ; and, it is notorious, that in the colonial ports of Spain there is little difficulty in procuring all of the apparatus for the use of the national flag. . . .”21
This decision read exceedingly fair, yet the question merely concerned that of condemnation of ship property, and not the punishment of the capitalist promoters. When, only shortly after this, one of the richest and most notorious slavetraders of Baltimore had been indicted, it was Story that, upon Roger B. Taney’s plea, set aside the indictment as “ fatally defective ” on technical grounds.22
Spoliation of the National Domain.
The struggle of the slave power to maintain its institutions was accompanied by a corresponding great effort of Southern plantation owners and politicians, allied with Northern capitalists, to seize for their private ownership immense areas of land, both in the original territory of the United States, and in the vast regions acquired by the purchase of Louisiana and the cession of Florida. Side by side with this appropriation, was a like movement on the part of Northern capitalists to get hold of the richest and most valuable areas of public lands in the North, West and Northwest.
Single individuals, or corporate companies of powerful personages, obtained tens of millions of acres of public domain. This was done in either one or both of two ways. One method was to get huge tracts of land by corrupting the land officials to sell them for a trifling sum ; in these great frauds nearly every politician of note was involved, either directly or indirectly, some pecuniarily, others as attorneys, and still others as compliant instruments. The second method was to present private land claims, covering enormous stretches of land, alleged to have been granted by French, British or Spanish governors.
That many of these proved thefts were successful was due largely to decisions of the Supreme Court of the United States. These decisions, in turn, served as commanding precedents in later justifying similar private claim defrauding from the Government of more than 20,000,000 acres of the most valuable lands in California, New Mexico, Colorado and other portions of the territory conquered from Mexico.
Another prefatory significant fact may be mentioned in this place : Just as the first Justices of the Supreme Court of the United States represented the combined old and newer landed interests, so it will be seen presently that the composition of the Supreme Court changed so as consistently to reflect the interests of the three dominant, aggressive sections of the capitalist class fighting at this time either to retain old conditions or to establish in law the objects of their struggle. These three sections were :
1. The triumphant slave-owning aristocracy, keeping its hold on Government until the Civil War.
2. The owners of chartered State banks, opposed to the monopoly of Government deposits held by the Bank of the United States. They came into power with Jackson’s election.
3. The private land claim speculators and monopolists bending every effort to have the courts validate their wresting of such vast areas of public land. Closely associated with this section was another section — the individuals or corporations securing immense tracts of public lands by fraudulent legislation or by outright fraud.
A Recital of Some Land Frauds.
With this general prelude, we shall now proceed to narrate the facts as to the private land claims. So profuse, however, are the facts that it will be necessary to present them in as compendious, yet withal, as comprehensive, a form as is possible with so prolific a fund of material. Such an exposition is necessary to an understanding of some extraordinary decisions rendered by the Supreme Court under Marshall and his successors.
The Louisiana Purchase in 1805 added the huge area of 750,000,000 acres to the national domain ; in this acquisition was included the entire surface of the present States of Louisiana, Arkansas, Missouri, Iowa, Nebraska, and Oregon, all of Minnesota west of the Missouri River, all of Kansas except a small corner, all of the Dakotas, Montana, Idaho, Washington, Indian Territory, and those portions of Alabama and Mississippi south of the thirty-first parallel. The cession of Florida, by Spain, in 1819, augmented the extent of the public domain by 38,000,000 acres.
The population of the United States, in 1800, was 5,319,762. In 1810, it stood at 7,230,903, and ten years later was nearly 100,000,000. Compared to the enormous extent of public domain, this was an extremely small population.
But much of the accessible area in the East had already been acquired by men and methods described in previous chapters. A certain number of emigrants had drifted to the West, but by far the greatest portion were compelled to remain and congest in the East.23 While allowing capitalists to get hold of millions of acres, the laws placed the greatest obstacles in the way of the poor.
Until the year 1800, public lands could not be bought in tracts of less than about five thousand acres. A bill authorizing the sale of public lands in alternate half and quarter sections was defeated in the Senate, but a compromise finally agreed upon permitted the sale in whole and half sections. This concession was of little effect. Gallatin, Secretary of the Treasury, reported to Joseph Nicholson, Chairman of the House Committee on Public Lands, on January 2, 1804, that poor individuals could not purchase less than 360 acres ; that in order to become freeholders, they had to pay $160, and become bound for $480 more, payable in four years. If they had no other resources, it was impossible for them to draw means of payment from the produce of the land.24 Wages were so low, and money so scarce, that for the average wage laborer to raise a few hundred dollars was an almost insuperable task. If he borrowed it, he had to pay usurious interest.
On the other hand, politicians and capitalists were able to get unlimited areas of land, either by outright legislative or Congressional gift, or by fraudulent purchase at auction “ on credit” from the Government. Having secured great areas of valuable land, the acquiring capitalists held such parts of it as contained mineral deposits, timber and other resources, and formed corporations to exploit their largess. Other parts adapted to agriculture were either turned into great farming estates, or were sold in small tracts, to actual settlers, at exorbitant rates. A Senate Committee, on February 9, 1812, estimated that not less than 30,000,000 acres of uncultivated land in the States and Territories west of the Alleghany Mountains were held by individuals.25
It was pointed out in a report at the time that the policy of selling the public lands to the highest bidder resulted in this inequality : That the intending settler had to consider how much his labor would yield him, while the speculator had only to calculate the profits arising from the labor of others. A petition to Congress, in 1814, that every person above the age of eighteen years be allowed to held 160 acres of public lands, by virtue of settlement, at the price of twelve and a half cents an acre, payable in seven years, without interest, was rejected, on the ground that its adoption would be offering “ a bounty to intemperance and imprudence.”26 Congress was filled with land speculators, or their obtrusive attorneys and lobbyists. Denying the right of land to the poor, Congress passed law after law making it easier for capitalist land speculators to buy enormous tracts. By September 30, 1822, “ credit purchasers,” mostly comprising those non-resident speculators, owed the Government a total of nearly $10,55o,000.27 Petitions to Congress to pass a law for the selling of the public lands at fifty cents an acre were unavailing.28
With the acquisition of Louisiana and Florida fraud was extended to a stupendous degree.
The old settlement laws of Great Britain, Spain and France prescribed various restrictions in the granting of land. The code of laws applying to all of the ultramarine provinces of the Spanish Empire gave to settlers a quantity of lands according to their station, the gentleman’s portion being at least five times the peasant’s, and the compliance of certain conditions of settlement and cultivation was demanded.29 Even when large grants were made by corrupt governors, the carrying out of certain specific conditions of settlement was called for. The old French grants in what is now Michigan contained twenty distinct and specific conditions ; if they were not fulfilled, forfeiture was declared. Among other provisions, timber and mines did not pass with the grant. If the grantee sold brandy to the Indians, his grant was confiscated. The Government held the prior right of buying his land. Each of these and other conditions were inscribed in the contract or grant.30 The British laws, as we have seen, strictly limited the area in a grant of land to any one individual.
The Forging and Antedating of Land Grants.
As earl as 1803, it seems, the industry of forging and antedating land grants was briskly begun in Louisiana. No doubt, this would not have been done with such assurance and on so great a scale had not the state of affairs in the United States warranted the belief, or at least the hope, that there were good chances of ultimately securing the validation of those spurious grants. Under the Republic of the United States, virtually no restrictions were placed upon the individual acquisition of large bodies of land ; the capitalist could have his own way ; and with Congress, the executive departments and the courts long composed of men largely themselves interested in land transactions, fair opportunities were presented of consummating the fraudulent schemes. It would take some time but it could be done.
A communication dated September 8, 1803, from a Government officer, in Mississippi Territory, to Gallatin, gave warning of what was going on. Describing the prevalent practices in the newly-acquired Territory of Louisiana, the writer went on : “ I have no doubt of the correctness of my information that a vast number of adventurers, many of them from this territory, are daily making extensive surveys, on the west side of the Mississippi ; and Spanish officers have lately set up claims to, and are now disposing of, large tracts, some even of sixty miles square, at reduced prices ; in some instances, not more than ten cents per acre.
“ It seems that the respectable citizens of this territory, who have spurned the nefarious offer, have been invited to a participation in the harvest of iniquity : the inviters alleging that land of the first quality might be obtained for a few cents an acre ; and respecting titles, as good as may be had (say they) are those by which lands are held on this side of the river.
A knowledge of former transactions in this territory, during the interval between the treaty of 1795, and evacuation by the Spanish Government, will lead one to an easy solution of the mystery by which this peculation will be veiled. The warrant of survey, the surveyor’s certificate, and the final grant, will bear concurrent date, prior to the cession of Louisiana to France.
“ I am told that in most, if not all, cases, these surveyors are Spanish subjects, and their assistants and chain carriers Spanish soldiers, who will probably move off with the Spanish Government. I therefore apprehend that for any tribunal hereafter to discriminate between the just and the fraudulent claim will be difficult, even if oral testimony be admitted ; but if, to its exclusion, the Spanish record be paramount evidence, impossible.”31
Another correspondent, in a letter dated September 29, 1803, written from New Orleans to Gallatin, wrote as regarded the territory then called West Florida (forming the gulf lands in what are now parts of Alabama and Mississippi), that “ the intendant here, probably foreseeing the cession, has opened a sale, within these few days, for the uninhabited lands in that province ; and orders of survey have, I believe, been already issued for three or four hundred thousand acres.” The writer went on to say : “ No individual thinks of purchasing less than forty to fifty thousand acres, the value of which may be estimated from twelve to twenty-five cents an acre, to be paid by different installments. I presume that, within ten days from this time, orders of survey will be issued for every acre of vacant land in West Florida. ...”32
Land Grants to Corpses.
A third communication, dated October 18, 1803, from a United States officer at Kaskaskia,33 Louisiana Territory, to Gallatin, read :
“ You have no guess how the United States are imposed upon by the Spanish officers since they have heard of the cession of Louisiana. Grants are daily making for large tracts of land and dated back ; some to men who have been dead fifteen or twenty years, and transferred down to the present holders. These grants are made to Americans, with a reserve of interest to the officer who makes them ; within fifteen days the following places have been granted, to-wit forty-five acres choice of the lead mines, sixty miles from this, heretofore reserved to the Crown of Spain ; the iron mine on Wine Creek, with ten thousand acres around it, about eighty miles from this place, and formerly reserved to the Crown of Spain : sixty thousand acres, the common touching St. Louis, heretofore given by the Crown of Spain to the inhabitants of the village (though of doubtful value), and fifteen thousand acres adjoining ; and many other grants of ten, fifteen, twenty and thirty thousand acres have been made. I could name persons as well as places.”34
These and other communications, together with a complaint of the United States Board of Commissioners (appointed to provide for the disposal of lands south of Tennessee), that the poor, actual settler had great difficulty in getting land, were sent by Gallatin to Congress. The Board of Commissioners stated that so many fraudulent claims to large areas of land in former Spanish territories were to be filed, that if testimony in opposition to “ those false and fraudulent claims ” were not made, little land would be left to the United States. “ The suggestions of the commissioners,” Gallatin wrote to Congress at the same time, “ on the subject of fraudulent and antedated Spanish grants, seem to deserve particular consideration. It is ascertained, by information received through various and authentic channels, that the same frauds are attempted on a much larger scale in Louisiana. ...”35
A little more than a month later, on February 29, 1804, President Jefferson sent a message to Congress, enclosing a communication from Amos Stoddard, Captain of the U.S. Corps of Artillerists, at Kaskaskia. Stoddard wrote that approximately 200,000 acres of valuable land, including all of the best mines, had been surveyed to various individuals in the course of a few weeks and that the grants had been antedated in the name of the former Spanish Lieutenant Governor. “ It is understood,” wrote Stoddard, “ that each purchaser gives forty dollars for every one hundred or four hundred acres, and that this sum is divided between three persons, the projectors of the speculation.”36
In view of these disclosures, comprising a very few of the many made at the precise time when the frauds were initiated, the position generally taken later in its decisions by the Supreme Court of the United States, was remarkably significant. This position was that when an order of survey was made, the lands covered by it were, by that very fact, detached from the mass of public lands, and converted into a vested private right.
Forgery on an Immense Scale.
A large variety of four species of alleged grants now turned up in Kaskaskia. One kind of grant was founded on alleged ancient grants from various Governments, or alleged land purchases from the Indians. A second were alleged grants of donations of four hundred acres to each head of a family settling in the country east of the Mississippi River at or after the time of the treaty of 1783 with England. A third sort were grants by courts or military commandants for improving and cultivating land, and a fourth kind were grants for service in the United States militia.
The extent to which fraud was carried in the case of all of these alleged grants was appalling. “ To our astonishment,” reported the U.S. Commissioners from Kaskaskia, December 1, 1807, to Gallatin, “ we find more than seven hundred depositions given there [in Upper Louisiana, now the State of Missouri] to be forgeries ; most of these depositions have been given in by persons assuming the names of certain ancient and respectable settlers in this country ; by calling them forward (for most of them still reside in Upper Louisiana) we have discovered the truth, but a truth most embarrassing to us ; we have been obliged to reject nearly forty claims to four hundred acres each, which we had confirmed to one man on this evidence, and caused to be recorded by our clerk as ultimately decided ; our records are everywhere to be altered. Besides, more than two hundred depositions have been given in before this Board by persons who have since acknowledged their falsity ; they found themselves entrapped. ...”37 The Board said that it had been imposed upon unavoidably, and that only by a slow and cautious comparison of facts, from time to time, had it learned the truth.
Official Collusion.
The ringleaders in these frauds were those notorious land speculators and sharps, John Edgar, J.R. Jones, Robert Reynolds, and Robert and William Morrison. Allied with them was a group of powerful politicians.
In a detailed report, in 1810, the U.S. Commissioners at Kaskaskia, revealed that Governor St. Clair, of the Northwest Territory, had been in collusion with Edgar as early as 1790. In that year St. Clair had lodged with Edgar. St. Clair had confirmed to Edgar an immense number of claims ; in one list alone, apart from many other claims, St. Clair had confirmed to Edgar a block of forty-four claims.38 Claim No. 2208, nominally covering 13,986 acres of land, but really stretched to 30,000 acres, had been confirmed by Governor St. Clair to John Edgar and to the governor’s own son, John Murray St. Clair.39 This claim was predicated upon an alleged grant by Colonel Wilkins, British Commandant of the Illinois Country.
“ The truth seems to be,” reported the Commissioners, “ that Edgar, previous to the issuing of the patent (which has never been, as usual, countersigned by the Secretary) employed a certain Daniel McCann, then surveyor under the Governor’s appointment (and who from his own letter on our files, we pronounce not to have been more honest than he ought to be), to survey this tract. Knowing, as it seems, the quantity of land meant here to be confirmed, he ran his lines to a certain distance and stopped ; Edgar urged him to proceed further, he refused ; Edgar then employed a certain Richard Lord, whose name is notorious on our records, to complete the survey ; and said McCann was, it seems, afterwards induced to certify it.”40
The St. Clairs allowed no opportunity to escape them.
Claim No. 2055 alone comprised ninety donation rights, of 400 acres each, to heads of families, or 36,000 acres, confirmed to Edgar by Governor St. Clair. Claim No. 2209, for a league square, had been patented by Governor St. Clair to John Edgar and St. Clair’s son, Arthur St. Clair ; the title was supposed to be an ancient French concession, but whether it was ever actually thus made was doubt ful.41 These are a few of the many claims, aggregating hundreds of thousands of acres, held by Edgar in collusion with various members of the St. Clair family.
Professional Perjurers Used.
These land jobbers had at their disposal a paid band of desperadoes and perjurers.
In the case of many of Edgar’s claims, Augustus Langlois testified as to improvements made in 1784-1785, yet the Commission reported that Langlois must have been only eight or ten years old at that time, and lived in a distant part of the country : Langlois perjured himself in twenty different cases.42 John Harris likewise had perjured himself in many successive cases for the benefit of the Edgar syndicate in claims confirmed by Governors St. Clair and William Henry Harrison. Another noted perjurer, Johnson Amberson, who had sworn falsely in thirty-three cases, was described by the Commission as a “ poor, wandering wretch, equally destitute of morality or character,” who had died “ in a drunken fit.” He had been willing “ to testify, on moderate terms, for any man who would pay him for it, and before anybody who would take his testimony. . . .”43 John Cook, a “Dutchman,” had committed perjury in fifteen land-claim cases ; he had testified to happenings in certain years, when as a matter of fact he had not left Europe at the time. “We further remark,” reported the Commission, “that many of these depositions have been written by John Edgar and other claimants of Kaskaskia, and sent up to said Cook at St. Charles, where they have been signed and attested by him, without the least alteration.”44
Of Nicholas Revelle, the Commission reported that although he had not been in America long, “ yet he has given a great number of depositions at St. Louis, and at St. Charles, La., exclusively in favor of large landholders, commencing as early as 1783-84.”45 Jean B. Montrieulle gave fifty depositions in favor of the principal land speculators ; he acknowledged perjury in a large number of cases. Joseph Page was thus described : “This man is a Frenchman, and has been a great swearer ; we have, perhaps, two hundred of his depositions, generally given in favor of the large land jobbers. . . .” Page had perjured himself in forty-three cases, and Daniel Thorn in seventeen.46 Simon Toiton, clerk of the Roman Catholic parish Prairie du Chien, probably moved to confession by the desire for religious absolution, came before the board and freely admitted having given two hundred perjured depositions in favor of Edgar, Williams and Robert Morrison and others.47 And so the long list of perjuries ran on at length.
The Commissioners Escape Assassination.
“ In a considerable portion of the cases,” the Commissioners reported, “ where claims have been supported by perjured testimony, we have been presented with forged deeds, conveying the claims thus supported. They amount to a very great number.” The conclusion of the Commissioners’ report shows the dangers of assassination to which honest officials were exposed. “ We close this melancholy picture of human depravity, by rendering our devout acknowledgments that, in the awful alternative in which we have been placed, of either admitting perjured testimony in support of the claims, or having it turned against our character and lives, it has, as yet, pleased the Divine Providence which rules over the affairs of men, to preserve us both from legal murder and private assassination.”48
A graphic picture this report gives of the widespread frauds and the perils faced by sincere investigators.
Reporting, December 17, 1811, to the House of Representatives on this document, Representative Morrow, Chairman of the Committee on Public Lands, stated that the evidence was conclusive that claims for improvement had been confirmed, where there were no improvements ; that alleged ancient grants had been confirmed, although there appeared to be no title made out to the claimant confirmed, which defect, in some instances, had been supplied by forged conveyances ; that the Spanish officers from whom the grants were alleged to have emanated not only had no competent authority to make them, but were expressly prohibited from exercising such powers ; and that the military bounty certificates, given to the militia serving in the Indian wars had not only been bought up by a few individuals, but the number turned in far exceeded the number of soldiers entitled to them.49 Nevertheless, skillful lobbying gradually did its work in successive Congresses composed considerably of men interested in land-grabbing, with the result that great numbers of fraudulent land claims were confirmed.
Spurious Claims in Louisiana.
In southern Louisiana, similar frauds were in process. The rings of land grabbers had their extensive ramifications in Congress and in the executive departments at Washington, and without difficulty secured the passage of two laws allowing land claimants peculiarly favorable conditions under which to submit claims. It is not possible within the scope of this work to present all of the facts embraced in the long report, made on December 30, 1815, by the Register and the Receiver of the Land Office, at Opelousas. By way of illustration, a few facts will be given.
Claimants swore that they had cultivated plantations and were heads of families, when, in fact, they were only boys at the time. Many claims were presented based on claims either counterfeited or fraudulently obtained. Of certain documents of title presented for confirmation, the Commission said that “ it is remarkable that although some of them differ as much as six years in their dates, it is evident from the size and texture of the paper that every sheet must have been taken from the same quire. It is, moreover, very evident that attempts have been made to give these papers an old appearance.”50
As to claims founded upon requetes approved and sanctioned by Spanish authority, the Commissioners reported that at first they were favorably impressed towards them “ but, in the progress of investigation, it appeared to them singularly remarkable that so many claimants holding requetes should have delayed to make their entries until the passage of the last two laws granting indulgence to claimants. ... The Register and Receiver, therefore, consider it a duty to recommend the adoption of some measures calculated to investigate this description of title more scrupulously than they have the power of doing. It should be noticed that no means have been afforded them of obtaining evidence against claims.”
Title papers, the Commissioners further reported, had been kept out of view for the purpose of claiming a larger quantity of land than had been conceded by the Spanish Government. The Commission incorporated in its report a letter written by Judge J.S. Johnston in which the Commission was informed that at Cattahoula, while Judge Johnston was holding court, “ a recent and shocking murder there has opened a scene of fraud and perjury of considerable extent, of which it is proper you should be apprised.” Judge Johnston said that there existed at that place a regular clique for the commission of great land frauds, and that in a dispute over the spoils, a man named Mecom had been killed and the murderer and his accomplice had escaped.51
The Indians Defrauded.
By worrying the Indians with the representation that the United States Government intended to take away their lands, speculators obtained an enormous area from the Appalache tribe on the promise of payment of $3,000. Neither this sum nor any part of it was paid.
Describing this transaction in detail in a letter, dated January 20, 1814, to Levin Wales, Register of the Land Office at Opelousas, Dr. John Sibley, U.S. Agent of Indian Affairs, at Nachitoches, added :
“ I do know that in proving claims before your Board, you have been most egregiously imposed upon, and those who have imposed on you have boasted of their acuteness. Indeed, there has been so much false swearing to obtain your certificates, that it is doubtful whether truth or falsehood would preponderate were an estimate of both made.” Sibley added this illuminating comment : “ I have determined to attempt to have some persons indicted for the false testimony given before you, but it has been so common, and within the knowledge of every grand-juryman, and many of them would not have to search beyond themselves for an instance, that I do not believe any grand jury in this part of the country could be found who would present a person for having proved a claim before your Board, however false it might appear.”52
Sibley was innocent of the knowledge that Levin Wales himself was interested with the very same men whom Sibley sought to have indicted, in a fraudulent purchase of the same character on Bayou Bœuf.53 Levin Wales was, in fact, an old hand at participating in land frauds.54 His denunciations of land frauds in Louisiana, while true enough, doubtless were made either with the view of giving himself an appearance of zeal, or of seeking to get hold of certain land, fraudulently obtained by others, for himself and his associates.
The Influence of the Frauds on the Supreme Court.
These details, tedious as they may appear, are vital to a clear understanding of the movements and public life of the period, and of a correct appreciation of subsequent decisions of the Supreme Court of the United States. They were conditions soon leading to the time when scarcely any man could get appointed to the Supreme Court unless he was viewed with favor by the newer land interests or their attorneys, controlling, as they did, the important committees of Congress, and having the President’s ear.
For example, Stephen Girard, a potent factor in the Bank of the United States, and the richest man at one time in the United States, was, together with Edward Livingston, Robert R. Goelet and other capitalists, one of the claimants of the great Bastrop claim, covering twelve leagues square in Louisiana, purporting to have been given by the Governor of Louisiana in 1796 or 1797.55 The Boisdore claim was another of the many private grant claims ; alleged to have been given by Governor-General Miro, in 1783, for the purpose of a cow pasture, its claimants contended that it comprised from 100,000 to 400,000 acres56 — quite a sizable pasture for cattle to roam in.
Great Forged Grants in Florida.
The cession of Florida was accompanied by as glaring frauds as those in Louisiana. Anterior to describing the great case of Mitchell et al. vs. the United States decided by Marshall, in 1835, a relation of these and other facts is necessary.
Negotiations for the cession of Florida to the United States were begun in 1816. Immediately, as had been the case in Louisiana, there was the greatest activity in turning out forged or otherwise fraudulent grants, in anticipation of the transfer of the territory to the United States. General E.K. Call, Assistant United States Attorney General, who later was delegated by the Government to contest alleged private land claims, described this period in his argument in the case of the United States vs. George J.F. Clarke : “ The court, will find,” he said, “ by an examination of the transcript from the archives of East Florida, that there was nearly ten times the quantity of land granted in the year 1817, and from that time until the year 1821, than had been granted previously during the whole period of the occupation of that province by Spain, commencing in the year 1783. ...”57
Many protracted and nauseating scandals developed from the efforts to have the great number of extensive private land claims confirmed. Alexander Hamilton, one of the three members of the Board of Land Commissioners for East Florida, resigned in disgust in 1824. He accused Floyd, one of the other members of the Commission, of having been employed as counsel in land cases the titles of which were officially under consideration by the Commission.58 This charge Floyd denied.
Hamilton also charged Floyd and Blair, the majority members, with having recommended fraudulent grants for confirmation. He informed Crawford, Secretary of the Treasury, that Floyd and Blair had kept the records in an illegal and improper manner ; that they refused to examine original papers and records ; that they kept on confirming grants notwithstanding the fact that a fraudulent erasure had been made in an important document ; and that Floyd and Blair, in defiance of the clear laws, decided that the Spanish governors had been vested with unlimited powers to grant lands.59 The Spanish laws, in fact, limited land grants to fifty acres to each head of a family, and twenty-five acres for each child or slave above the age of sixteen years, and fifteen acres for each child or slave between the ages of eight and sixteen years.
Spurious Grants and Fraudulent Surveys.
Hamilton estimated that the fraudulent claims in East Florida alone covered tracts aggregating fully 1,500,000 acres, and that they had actually been surveyed to double that extent.60 The surveyor responsible for this was the notorious George J.F. Clarke, surveyor-general under the Spanish government. Clarke’s frauds are numerously described in the Government documents. Large numbers of fraudulent claims were confirmed by the Board, although the original grants had never been produced, nor were they to be found in the office of the keeper of public archives. Of the validity of these grants, there was no proof whatever except the certificate of Thomas de Aguilar, late Secretary of the Spanish Government in Florida. “ It is my opinion,” wrote Hamilton, “that Congress will not sanction many of the claims recommended for confirmation, but will consider them as fraudulently made in anticipation of the cession of the Floridas to the United States.”
Writing to Crawford, Secretary of the Treasury, from St. Augustine, January 24, 1824, Hamilton stated that one of the reasons why he opposed the majority of Commissioners was “because I considered the public interests essentially jeopardized by the admission of claims that in my opinion, had been made in fraud of the United States, and in direct violations of the provisions of the royal order of 1815, in virtue of which they were avowedly made.”61
Regarding the claims of John H. McIntosh, Hamilton wrote, May 24, 1824, to Christopher Rankin, Chairman of the House Committee on Public Lands, that he had tried to give the most liberal construction to the most legitimate powers of the former Governors, and to sustain, if possible, the pretensions of the claimants. He added :
“ If the objection to confirm the grants had arisen from mere irregularities, and they had been made within any reasonable conformity to the authorities in virtue of which they were avowedly issued, I should, unquestionably, have yielded, if not acquiesced, in the decisions of the majority ; but when it was evident that the grossest and most extravagant frauds were attempted to be imposed upon the United States in anticipation of the cession of the Floridas to its sovereignty, I felt imperiously bound to investigate all those grants involved within this character, and all such as from their extravagance, would bear the least suspicion of forgery.”62
These grave charges were supplemented by particulars. Hamilton further said that “ there are strong suspicions that when the floodgates of prodigality were opened, the frauds were not confined to a violation of the ordinary authority, but extended to the charge of forgery in antedating, etc.” The minutes of the Commission, he pointed out, proved that under Spanish power previous to the year 1814, there existed a systematic rule in the distribution of the public lands, and that the grants made inconsistent with those restrictions had been issued subsequent to the year 1814, with the exception of perhaps five said to have been issued by White, Governor of Florida, from 1796 to 1811. The old Governors, Hamilton urged, possessed no plenary power to dispose of the public lands. White, said Hamilton, bore an excellent reputation for integrity ; therefore the grants said to have been made by him should be investigated carefully. “ It has also been proved by the documents herewith annexed,” Hamilton continued, “ that if Congress were not attempted to be imposed upon, they have at least been kept ignorant of the knowledge of the existence of public papers essentially necessary to a proper understanding of the subject in which the interests of the United States are involved to a value amounting to millions of dollars.”63
This was Hamilton’s version of the issue. On his part, Davis Floyd, writing March 6, 1826, to Richard Rush, Secretary of the Treasury, protested against the criticism of the Board. The business of investigating and exposing frauds and forgeries, he wrote, “ would not be popular with persons interested ; and that those who were the means of detecting and exposing such nefarious transactions would thereby make themselves enemies, will readily be admitted, and was reasonably expected ; that there are cases of a doubtful and suspicious character, and which have been held back by the claimants in the hope that the business might fall into more favorable hands, is confidently believed ; and hence a solicitude for a change was calculated on. . . .”64
There was one significant fact, however, which none of the Commissioners could deny. In a public advertisement, William Reynolds, Keeper of the Public Archives, offered a reward of $100 for information leading to the conviction of the person who, on or about November 27, 1823, clandestinely placed in Reynolds’ office a document purporting to be a memorial and Spanish concession for a grant of 16,000 acres of land, and at the same time stole another document for a few hundred acres, substituting the one for the other.65
Considering what was going on in Congress and in the executive department at that very time, Hamilton must have expressed himself in an ironical sense.
The policy of the land jobbers was first to get Congress to confirm small claims exciting no public attention. With these cases as precedents, huge claims would later be rushed through in the closing hours of the sessions. These tactics were commented upon by Senator Hunter, of the Committee on Public Lands, in his report to March 14, 1820, “.... In land cases of small amounts,” he said, “it had been habitual, and perhaps excusable, for the Committees to lend a favorable ear to claimants. At the worst, it was a donation of a few acres of an unbounded region ; a handful from a heap. But experience teaches that these decisions in minor cases are soon cited as precedents, and are made to include principles dangerously vague and indefinite, and are clamorously invoked in aid of subsequent cases of suspicious aspect and enormous magnitude."
This, it may be said, was equally true of the Supreme Court of the United States. Doubtless, it was with the knowledge that land jobbers or their lobbyists overflowed Congress, that Floyd wrote to Rush that when the Board recommended a claim as valid, “ the distinguished liberality of Congress ” was depended upon to propel it to final confirmation.
The Enormous Land Grants Claimed.
The assurance and audacity of the claimants to vast tracts of land in Florida were matchless. Without having the slightest proof, except certificates from the notorious Aguilar, they persistently pushed their claims.
The heirs of J.M. Arredondo claimed 40,000 acres, as having been granted by Governor White, in 1811 ; they could produce no original grant, nor was any paper found in the archives ; they had nothing but a certificate from Aguilar. The same was the case with the heirs of F.M. Arredondo, claiming about 306,000 acres of land, under alleged grants by Governor White, in 1809, and 3o,000 acres under alleged grants made in 1817. George J.F. Clarke turned up with claims for 22,000 acres of land with nothing but a certificate from Aguilar to prove his claims. Pedro Miranda presented a claim for 368,640 acres, alleged to have been granted by White in 1810 ; this was denounced as a forgery. Although he could show no original grants, Michael Lozerns, with nothing more than Aguilar’s certificate, lay claim to 43,000 acres as having been granted by Governor Coppinger, in 1817.
These were a few of the grants claimed as having been given on the score of “ services to the Spanish Government.” Only two claims on the whole list were backed by the production of the original grants.66
Some sixty-five thousand acres (one of the claims being for 50,000 acres) were claimed as having been granted by White for cultivation and improvement, yet there was no proof of either habitation or cultivation.67 Claims were put forward for an aggregate of 312,000 acres alleged to have been granted in return for the building of sawmills, “ yet the archives of the country furnished no precedent for the confirmation of one of them.” Although these mill grants (if genuine), Call reported further, conveyed only the right to build sawmills on some stream and use the pine trees on the adjacent land five miles square, yet “ most of these grants have been surveyed in four or five different tracts, many of them more than one hundred miles distant from each other, covering the best land to be found, instead of the pine forests designated in the grant. . . .”68
A Commission, appointed by Crawford, in 1824, to investigate land titles in West Florida, reported that the records had been removed from the country in violation of the solemn stipulation of the treaty ; that, among other claims, the papers in the claim of Fernando Yerra, for 25,600 arpents of land69 were forged, as also in the claim of Magarita Goquet for 10,000 arpents, and in Francisca Zurima’s claim to 5,670 arpents. Giving their specific reasons for believing the papers to be forged, the Commission observed : “ It is in grants of the greatest magnitude, and whose titles are made out with unusual exactness, that apprehensions of fraud are to be most seriously entertained. The poor and limited claimant is very rarely found guilty of this crime. . . .”70
The “ Innocent Purchaser.”
In the prosecution of many of these claims for confirmation, a noticeable feature remarked was the suspiciously large number of cases in which the claims had been transferred three or four times from one holder to another, the conveyances passing within a brief period.
Of these assignments, there was a multitude throughout the Louisiana Purchase and in Florida. In his extended and searching analysis of the private land claims 71
Judge Peck, of the United States District Court at St. Louis, wrote that these assignments had been prohibited by the Spanish law.“ The assignments,” he said, “ were forbidden ; they were a violation of the intention of the concession. Their frequency at the close of the Spanish government, furnished evidences of fraud ; so many of them being made to the same individuals, is strong evidence of fraud. The same assignees having also large concessions to themselves of which they had not taken possession, and which in many instances appear to have been obtained, with the ostensible view of a possession to be taken at a future day, or a distant or uncertain period, is evidence of fraud. No specific lands being applied for, is evidence of fraud. The concessions with the right to locate parts of the concessions at various places, etc., is evidence of fraud. When we look back to a period of the Spanish government prior to the period to which grants were antedated, no such practice obtains.”
The reason impelling those assignments was palpable in the Fletcher vs. Peck case. New England capitalists had successfully pleaded before the Supreme Court that in buying the great Yazoo claim, they had done so in innocence of the fraud and bribery by which the act had been passed. This “ innocent purchaser ” plea could now be invoked in behalf of the Florida and other land frauds.72
Another suspicious feature of these claims was the defense, when claimants were asked why they had not built mills and made settlements, that Indian hostilities had prevented them. This, as we have seen, was an antique subterfuge ; it had been pleaded in the case of the Loyal Company, in Virginia, and with success in the argument in the Supreme Court of the United States to validate the Holland Company’s title. Those Supreme Court decisions had pointed the sure way to get judicial confirmations of the most flagrant and most extensive thefts of land, either from Congress or from the Supreme Court itself.
Act after act was passed by Congress either directly opening the way for premeditated frauds, or allowing measures of indulgence for land claims.
In 1815 an innocent-appearing law, called the “ New Madrid Act ” had been enacted providing that any person who owned land in the country, which land had been materially injured by earthquakes, was authorized to locate a like quantity elsewhere in Missouri and Arkansas. “ I will venture to say,” reported, in 1823, Thomas Sloo, Jr., Government agent commissioned to examine the land offices in that territory, “ that the New Madrid law, as it is termed, had given rise to more frauds and more downright villainy than any law ever passed by the Congress of the United States. ...” In many instances, Sloo wrote, fraudulent relinquishments had been made, and certificates obtained, by persons who had not the shadow of a claim to the land surrendered. His report went on to detail numerous other great frauds.73
John McLean Goes on the Supreme Court.
One of the principal land jobbers in Congress from 1823 to 1829 was William McLean, a representative from Cincinnati. His brother, John, was in Congress from 1812 to 1815, and was Commissioner of the General Land Office, under Monroe’s administration.
Significantly, John McLean had studied law at Cincinnati under Arthur St. Clair, son of General St. Clair ; of the great land frauds committed both under and by the St. Clairs we have already given an adequate description. Also (although it is an anticipatory fact), it may be added here that three years after the death of his first wife, John McLean, while a Supreme Court Justice, married in 1843 Sarah Bella Garrard, daughter of that same Israel Ludlow who, as Government surveyor, had colluded with Symmes and Dayton in appropriating the site of Cincinnati before they had a patent, and in other land frauds. Ludlow, of course, left a large estate. As for William McLean, he was the most persistent promoter of the various bills by which several million acres of land were given as a donation to Ohio canal companies ; he was particularly instrumental in securing the passage of an act donating a Government land subsidy of 500,000 acres for the extension of the Ohio canal from Cincinnati to Cleveland.
“ For many years,” virtuously reported a select committee of the House, on February 25, 1829, “the public lands were viewed as the great resource of the nation. Its credit was mainly based on this property which was pledged for the payment of the public debts. ... Within a few years, however, a greater laxity in legislation prevailed. Claims rejected at the Land Office have been readily allowed by Congress. ... and during the session of 1827-1828, Congress actually gave away, to States and individuals, not less than two millions, three hundred thousand acres of choice lands, comprising a surface equal to that of two of the States, Delaware and Rhode Island, and worth in the market at least three millions of dollars.” The committee expressed the hope that its report would “ effectually check in the future the giving away of this most valuable national property.”74
In 1830, John McLean was appointed an Associate Judge of the United States to succeed Justice Trimble. In the same year President Jackson also appointed Henry Baldwin an Associate Justice to succeed Justice Bushrod Washington. Baldwin had been a member of Congress from 1817 to 1822, and from that year to 1830 had practiced law at Pittsburg, representing landholders.
Congress Confirms Numerous Claims.
During this period, Congress had been stealthily confirming many private land claims, alleged to be derived from old grants, mainly Spanish and French. Nearly all of these claims had been rejected by the various Boards of Land Commissioners, and for twenty and thirty years had been pushed by industrious promoters, attorneys and lobbyists.
The administrations of Monroe and John Quincy Adams were found to be the auspicious times to get confirmations from Congress. From the organization of the Government to 1828, but chiefly in the Monroe and Adams’ administrations, Congress had allowed 7,650,328 acres in settlement of private land claims ; of this area 581.884 acres in Mississippi, 966,087 acres in Missouri, and 5,000,000 acres in Louisiana were set apart in satisfaction of private land claims.75 These numerous claims, while making a formidable aggregate, were not to be compared to the few claims of immense extent validated a little later by decisions of the Supreme Court of the United States.
A hint of the methods used in Congress may be seen in a memorial of Missouri inhabitants to Congress, in 1828, protesting against the laws being clandestinely enacted for the benefit of claimants. The prevailing methods, the petitions complained, gave the claimants opportunity “through their watchful and persevering agent at Washington to pursue the same course that the heirs of François Vallee did last year, and obtain, if possible, a confirmation of their claims at some unguarded time which might happen toward the end of the session.”76
The Board Rejects the Arredondo Claim.
But the partisan factions in Congress, with their eyes on political advantage, dared not venture to excite public opinion by confirming certain huge Louisiana and Florida private land claims. Upon these audacious claims public attention had long been focused ; if they were confirmed that act of itself would entail the confirmation of any other claims, the issues involved in which were the same ; as a measure of political tactics, it was then considered extremely unwise to confirm particular claims that so many Government Boards and officials had denounced as spurious. All that Congress would undertake was to use indirection in behalf of the spurious claims ; in allowing the claimants to bring suit, it thus gave their claims a partial recognition. It was to the Supreme Court that the claimants eagerly looked for final confirmation, and every exertion was bent in that direction.
The composition of the Board of Land Commissioners for East Florida had been somewhat changed. In its final report to Congress, in 1828, this Board, while recommending some claims for confirmation, rejected others of a proved fraudulent nature. It rejected Francisca Aguilar’s claim to 30,000 acres. The claim of J.M. Arredondo to 50,000 acres and that of F.M. Arredondo to 250,000 acres, were thrown out as self-evidently spurious. Likewise was the claim of Peter Miranda to 368,64o acres, bordering on Tampa Bay.
The claimants could not produce a single original deed for any of these and other grants. Their entire case rested upon copies of copies of originals ; these copies of copies were certified by Thomas de Aguilar, Secretary of the last Spanish Governor in Florida. The most diligent search on the part of the United States Government officials failed to reveal any originals, or any traces of them, in the archives.
In passing upon the Miranda claim the Board reported that it did not believe that Governor White, when living, ever made a grant of twenty thousand acres to any individual, “ whatever he may have done since dead.” The Board went on to say of the activities of Thomas de Aguilar, “ It was over this last office that Thomas de Aguilar presided ; it was from this office that so many monstrous grants have emanated ; it is from this office that the originals of Thomas de Aguilar’s certificates of grants are lost, and it is in this office that the original of the grant before us is to be found.”77
But who were the real claimants to these vast grants ? They were not Spaniards at all ; they were Northern capitalists and politicians such as General Jasper Ward who claimed 128,000 acres of the grant said to have been given to F.M Arredondo & Son, and Henry Eckford, a rich New York shipbuilder and politician, who set up a claim to 46,080 acres of the alleged Miranda grant. As for the claims in West Florida, alleged to be derived from the former British government, they totalled more than 1,000,000 acres ; all, reported Joseph M. White to President John Quincy Adams, on February 11, 1829, “appear to be entirely unfounded in law or equity.”78
Of the egregious frauds in the Louisiana Purchase and in Florida we have given here the merest suggestive outline of the vast mass of facts embodied in the public archives ; the recital of the whole would require several volumes in themselves. Altogether, the private land claims at this time, reached, it was estimated, about 12,000,000 acres. Unable to get their claims recommended by the Land Office, or definitely validated by Congress, corrupt as both were,79 the promoters of the rejected fraudulent claims now placed their final hopes in the Supreme Court of the United States.
Marshall Validates the Arredondo Claim.
The Government vigorously contested the F.M. Arredondo claim. Deducting certain tracts apparently confirmed to the Arredondos, this disputed claim covered an area of 289,645 acres. It lay largely in the county of Alachua, and its eastern boundaries comprised almost the whole of the northeastern coast of Florida, including Jacksonville and other cities ; its center was the site of the present city of Gainesville.
The Superior Court for the Eastern District of Florida, acting upon precedents created by the Supreme Court of the United States, confirmed the claim. The Government then carried the case on appeal to the Supreme Court at Washington.
The Government charged fraud ; it argued that the Intendant of Cuba had no authority to make such grants ; that the time the grant was alleged to have been made, in 1817, the country was under the jurisdiction of Great Britain ; that, even if the grant were genuine, the Arredondos had failed to perform that condition of the grant requiring them to establish two hundred Spanish families within three years from the date of the grant. Finally, the Arredondos (or rather, the American capitalists holding the claim) could produce no original grant ; all that they had to show was an alleged copy of a copy of the original, which copy was certified by Aguilar.
Chief Justice Marshall decided in January, 1832, that the claim was valid.
Just as in the Yazoo case he had ignored the facts of fraud, notwithstanding that the Grand Jury published testimony containing the confessions of legislators, so here he also decided that there was an absence of proof. Don Onis, who had been commissioned by the King of Spain, in 1816, to negotiate with the American Government, had admitted that the various large claims “were fraudulent and a disgrace to his country.”80 Successive Boards of Land Claim Commissioners, conducting their examinations on the spot, and familiar with the intimate circumstances, had rejected the claim as fraudulent. The General Land Office had refused to pass it, and so had Congress. The extensive corruption of George J.F. Clarke and Aguilar was established and conclusive ; many Government officials had detailed the facts, and these facts had neither been disproved nor had their accuracy been challenged.
Chief Justice Marshall and his concurring coadjutors chose not to see the fraud. Had they even countenanced it, they could hardly have reconciled with their validation the vaunted principle of law that fraud vitiated every transaction. Their only recourse was to evade and ignore the actual facts. All that they preferred to see, as in the Yazoo, Holland Company and Fairfax cases, was the official, formal act ; there was the official record that the land had been surveyed, and there was Aguilar’s certificate that the copy of a copy of the grant was a copy of the original. Aguilar was a recognized Spanish official, therefore — according to Marshall’s logic — his certificate was an official, legitimate attestation. The moment the grant was made, Marshall held, a vested right was conferred.
Those who in the light of the facts herein set forth, desire to see to what lengths judicial sophistry and disingenuousness may be stretched, are respectfully advised to read Marshall’s decision in full.81
The only dissenting opinion was that of Justice Thompson. The evidence, Thompson protested, showed that in February, 1822, one year after the ratification of the treaty by the United States, two negroes were the only persons who could be found on the whole of the 289,645 acres.
The decision in this case opened the immediate way, then and later, for the validation by the Supreme Court of a very considerable number of claims equally fraudulent, and all of which had been strongly contested by the Government.82
The Astor Decision.
This decision, coming during the period when the Supreme Court had rendered a decision in another case causing much public agitation — the Astor case — made the Supreme Court a target for much denunciation.
During the Revolution, a tract comprising 51,012 acres in Putnam County, New York, held by Roger Morris and his wife, Mary, had been confiscated by the State on the ground of their being Tories. This land was part of the estate of Adolphus Phillips, the son of Frederick Phillips, whose career as a promoter of sea piracies and as a bribe-giver, has been narrated in Chapter 1. Mary Morris was a descendant of Adolphus Phillips. After confiscating the land, the State sold it to various farmers ; by 1809, seven hundred families were settled on the property which they had greatly improved.
In that year John Jacob Astor learned that there were grounds in law by which the farmers could be ousted from possession. These grounds, as Astor was informed, were that inasmuch as the Morrises had held a life lease only, the State had no power to confiscate a life lease. The property, Astor was told, was really owned by the Morris children, to whom, by the original provisions, it was to revert after their parents’ lease had been extinguished. Astor hunted up the heirs, and by dissimulation, succeeded in buying up their claim on payment of $100,000. Astor’s lawyers notified the occupying farmers that not they but Astor owned the land with all its valuable improvements.
A great public uproar resulted, and the Legislature refused to recognize Astor’s claim. But Astor pressed it in the courts, and it was finally validated by the Supreme Court of the United States, Justice Story writing the court’s opinion. The State of New York was compelled in 1827 to give Astor $500,000 in five per cent. stock, specially issued, for the surrender of his claim.83
An Unaccountable Delay.
Having gone so far in the Arredondo decision, the Supreme Court of the United States, blissfully oblivious to criticism, now proceeded to confirm a large batch of land claims. But in the case of one claim — that of Soulard’s Heirs to 10,000 arpents of land, about seventy miles north of St. Louis — a remarkable circumstance developed. Although this case came up, on appeal, in 1830, after the rejection of the claim by the United States District Court at St. Louis, Marshall held it under advisement, and no confirming decision was rendered until nearly six years later.
Why this prolonged delay ? Was it because of the great sensation that the revelations of frauds in Arkansas and Missouri were making in the public mind ?
After both the Board of Land Commissioners and the Superior Court had confirmed a hundred and thirty-one claims, represented by John J. Bowie, the Government came across evidence proving that Bowie had either himself committed, or procured, the forgery of the name of the former Spanish Governor Miro, and that he had suborned the perjuries by which they had been supported. The Superior Court in 1831 found itself compelled to reverse and annul its own judgment. So strong was the evidence, that the Supreme Court of the United States could not do otherwise than sustain the Government. Notwithstanding, the Bowie claimants lobbied in Congress for a confirmation, but failed to get it.84
In the District Court at St. Louis Judge Peck had repeatedly exposed and denounced Soulard’s frauds. Soulard had been the Surveyor-General of Upper Louisiana under the former Government ; in the case of Joseph Wherry et al. vs. the U.S., Judge Peck said that the circumstances “ raise the presumption of intentional fraud,” implicating Soulard “ in whose handwriting the concession proved to be.” Soulard had admitted in a letter that his most intimate friends were interested in his surveys, and when called as a witness in St. Louis he had refused to answer all questions as to the antedating of concessions.
Judge Peck declared, with exhibits, that a large number of claims had been antedated, and he detailed how “ the fifty-one concessions of eight hundred arpents each, surveyed by the assignees of those in whose favor the concessions were made, are attended with many evidences of fraud.” Judge Peck sarcastically commented upon the fact that twenty-four miles of surveys were alleged to have been made on a single day. On the same ground — that the claims were fraudulent in their inception — Judge Peck threw out the claims of Delassus, of August Choteau, and many other claims.85
But, in January, 1835, Chief Justice Marshall reversed the lower court and confirmed a number of these claims.
The Delassus claim for a league square in Missouri, and the Choteau claim to a valuable stretch of 1,281 arpents, near the town of St. Louis, were validated. Another Choteau claim for a league square, which claim had been rejected by the Board of Land Commissioners as “ unsupported by actual inhabitation and cultivation,” and which had been declared invalid by the U.S. District Court, at St. Louis, was confirmed by Marshall. Who the actual owners of these and other claims were, the records do not state. With these and prior decisions as precedents, the Board of Land Commissioners lost no time in confirming a large number of similar claims.
The Mitchell Claim of 1,200,000 Acres.
The validation of the enormous Mitchell claim, however, was the case conspicuously commanding public attention.
The real promoters of this claim were George Griswold, a rich New York shipper,86 and others, combined with other capitalists and with some of the most noted politicians in the country. They later formed the Appalachicola Land Company. Griswold was subsequently implicated in vast land frauds in Texas. The Mitchell claim covered the immense area of exactly 1,200,000 acres beginning a little west of Tallahassee, Florida ; it included what are now the counties of Franklin, Wakulla and Liberty, and parts of other counties. The persons ostensibly bringing the suit were Colin and Robert Mitchell, Benjamin Marshall and others, as the heirs and representatives of John McNish, to whom the claim had been conveyed by John Forbes and Company.87 This firm had succeeded that of Panton, Leslie and Company.
Panton had been a Tory during the Revolution, and had fled to Florida. There he had gone into the varied business of importing and selling negroes from Africa, and of trading with the Indian tribes. This trade was the usual one of debauching the Indians and then grossly swindling them by charging them extortionate prices for merchandise in exchange for their furs. It was a trade that elsewhere for many years yielded John Jacob Astor $500,000 a year, and enabled him to corrupt public officials for immunity ; on one occasion (in 1817) Lewis Cass, a leading Democratic politician, Secretary of War under Jackson, and later Democratic candidate for the Presidency, received $35,000 from Astor for services not stated.88
The firm of Panton, Leslie and Company had pretended claims for $86,000 against the Seminole Indians, and other claims for a large amount against the Choctaws and Chickasaws. After the year 1804 the firm became John Forbes and Company. The Spanish Governor granted to this firm the exclusive privileges of importing goods free of duty, and under certain specified conditions, of trading with the Indians ; the court records speak of the great influence the firm had with the Spanish Governor. The firm presented two claims against the Indian tribes, one for debt, the other for alleged depredations on their stores. The result was that John Forbes and Company turned up with two deeds, conveying a total of 1,200,000 acres, near Tallahassee. These deeds, they claimed, were given by the Seminole and Lower Creek Indians, in two cessions, and were (so they alleged) confirmed by the Spanish Governor, in 1806.89
This pretended transaction, it may be said, was one of the causes of the Seminole uprising, causing much loss of life. No history has yet mentioned the underlying causes of the Seminole War, which, in reality, sprang from such enormities as this.
No Original Deed Produced.
John Forbes and Company sold their claim to the 1,200,000 acres to various American capitalists. The Land Office long refused to recognize the claim, or to have anything to do with it. But after years of lobbying, the promoters succeeded, in 1828, in getting an act passed by Congress authorizing the claimants to institute proceedings in the courts to try the validity of their title.
As in the Arredondo case, the claimants in this case could not produce original papers ; they had nothing more than copies of copies, alleged to have been certified by Spanish officials. The Government officials ransacked the Spanish archives, but not a single trace of any original document could be discovered.
The Superior Court, for middle Florida, indignantly rejected the claim as fraudulent, pointing out (among other things) that the water mark of the paper purporting to be that used by the Spanish Governor was extremely suspicious. That the judge would ever detect this, had not been anticipated by the claimants.
The claimants took the case to the Supreme Court of the United States. There, Daniel Webster was one of their attorneys. The Government contended that not the Indians, but the Spanish Government, should have been held to account for indemnity for losses sustained by the firm while trading under a special and exclusive license from Spain ; that the Government had no knowledge of the existence of the firm, or its claims on Spain, or the title on which the suit was founded, and that the deeds were executed by Indians nearly all of whom were residing in the territorial limits of the United States.
The Government further set forth that the cessions were not the genuine acts of the Seminole nation ; that no such firm as Panton, Leslie and Company existed at the time of the execution of the deeds — both Panton and Leslie were then dead — and that the Spanish Governor Folch had no power to ratify the cessions, inasmuch as most of the cession was in another province of Florida, and entirely out of his jurisdiction. The genuineness of the deed purporting to convey the grant was also sharply questioned.
The Supreme Court Validates the Claim.
Nevertheless, the Supreme Court of the United States, in January, 1833, reversed the lower court, and validated the whole transaction.
Of the long-continued and widespread defrauding of the Indian tribes, the Supreme Court well knew ; scandals were continually coming into the public records and prints.
Only a few years before, in 1825, a great scandal had been caused by the bribery of Creek chiefs, in Georgia, by Government agents to influence them to cede several million acres of their domain in Alabama, and all of their land in Georgia.90 But assuming that the claims of Panton, Leslie and Company against the Indians were legitimate, and accepting the assertion that the Indians had actually bartered away 1,200,000 acres of their possessions, the Supreme Court held that the cessions were valid, having been made at Indian treaties, in the presence of Spanish officers, and with their full approbation.
But what of the paper with the peculiar water mark ? Justice Baldwin, who wrote the court’s opinion, skipped around that ticklish point by dismissing it as “ a subject into which we do not feel at liberty to inquire.” Justice Baldwin admitted that the court below had acted correctly in refusing to grant the claimants a commission to take testimony to explain and account for the suspicious water mark, or to permit the reading of ex parte evidence offered to explain it. This refusal, Justice Baldwin acknowledged, was reasonable, “because in an appellate court no new evidence could be taken or received without violating the best-established rules of evidence and law.” Justice Baldwin went on to say that the Supreme Court would not say what course it would have taken had the title depended upon the date of the paper denounced by the court below ; “as the case is,” he concluded, “it is only one of numerous undisputed documents tending to establish the grant, the validity of which is but little, if it could be in any degree, affected by the date of the permission.”91
In other words, if the document were forged, that was a matter of little consequence. Ordinary reason would judge that if claimants produced one document of a suspicious character, that one fact of itself would discredit all of the other evidence that they produced, however seemingly strong. If forgery was resorted to in the case of one document, was it not likely that perjured and suborned evidence would also be presented ? The one implied the other. In common life, if a man be detected telling a serious lie, that conduct tends to have a disqualifying effect upon all of his other statements and actions.
But the Supreme Court, with a delicious innocence, accepted all of the evidence as valid. In this case it did not even have a formally clear record upon which to base its judgment, for the court below had expressly thrown out a crucial document as presumably forged. And these were the grounds upon which the Supreme Court gave a huge tract of 1,200,000 acres to a handful of absentee capitalists and politicians whose only idea was to dispose of it for their personal profit.
Judge Peck’s Severe Criticism.
For its decisions in the Missouri and Florida land cases, the Supreme Court was severely criticised by both Judge Peck and Assistant Attorney-General Call. Both of their elaborate refutations were published by the Government at length, nor was any attempt made by the Supreme Court to hale them up for contempt.
In his exhaustive review, of December 13, 1835, Judge Peck cited the old Spanish and French land laws, and demonstrated that previous to the year 1796 no concession had been made which exceeded a league square, and that not a single concession had been made during that period, except upon the condition of settlement, with a direct view to cultivation or the raising of cattle. Judge Peck then proceeded to prove, point by point, how the alleged large concessions, and all of those claimed in reward for services or not made with a direct view to settlement and occupation, were antedated.
“ I think it probable,” concluded Judge Peck, in describing the specific particulars of the extensive system of forgery, “ that at the commencement of this work, the first experiments were on a small scale ; but that, as the work progressed, the minds of those concerned were enlarged, and their labors were conducted upon a scale corresponding to that enlargement of their views. I do not doubt that the instances are frequent where the same individual has a small, and a large, concession equally fraudulent, sometimes from the reason above supposed, and sometimes probably because he wished to have two tickets in the lottery, and draw a smaller if he should not a larger prize.”92
Again writing from St. Louis on February 10, 1836, to Ethan A. Brown, Commissioner of the General Land Office, Judge Peck submitted another exhaustive memorandum of facts showing the precise circumstances under which the fraudulent land claims had been forged, and proving why it was impossible that they could have been genuinely granted.
“ Aware,” he wrote in part, “of the great authority which must justly be allowed to the opinions of the highest tribunal of the nation, and the feeble resistance which the voice of a single individual opposes to them, I could not hope to sustain an opposing opinion, however strong my conviction of its soundness, upon any proofs short of those which should be clear and convincing.
“ In sustaining my opinions with such proof, my observations have been protracted to a length which I had not foreseen ; they, however, will be found, as long as they may appear, to offer to him who is desirous to understand the questions which belong to an investigation of the Spanish land claims, the shortest road by which he shall be enabled to arrive at the truth.” In his preliminary observations Judge Peck wrote, “ I shall offer no apology for controverting the opinions of the Supreme Court, in an inquiry after truth, when in the prosecution of inquiry, that controversy becomes necessary.”93
A singularly suspicious fact of which Judge Peck informed the Commissioner of the General Land Office, was that although his (Judge Peck’s) views and opinions and proofs had been forwarded in print, yet the Attorney-General of the United States had not, it appeared, even offered them to the Supreme Court of the United States. Did this imply collusion with the land forgers on the part of the Attorney-General ? Had certain facts been withheld from the Supreme Court ? This we do not know ; but, as we shall see, it was by no means uncommon for Attorneys-General to collude with land claimants for whom, when in Congress or in the private practice of law, they had been attorneys.
General Call Controverts the Supreme Court.
Assistant-Attorney-General Call, who had investigated and defended the Florida land cases for the Government, wrote fully as searching and scathing a criticism of the Supreme Court. In reply to a resolution passed February 23, 1835, by the House of Representatives, directing a report on the Florida land claims, General Call prepared an elaborate review which he sent to Levi Woodbury, Secretary of the Treasury. After stating that cases involving nearly a million and a half acres of land in Florida (irrespective of the huge claims already validated by the Supreme Court), had been largely dependent upon the decision in the Mitchell case, General Call then specifically proved how the grants had been either antedated or unlawfully given. He went on :
“. . . When we consider the time at which this change occurred — when we consider that Don Onis was commissioned to negotiate with this Government for the cession of Florida, as early as the year 1816, it is a fair presumption, in the absence of any law to sustain these grants, that they were made in anticipation of the transfer of the country, and designed as a fraud on the Government of the United States.
“ This, however, in the opinion of the Supreme Court of the United States, seems to constitute no objection to the validity of these grants. In the case of Clark, 8 Peters, we find the following remark : ‘ It is stated that the practice of making large concessions commenced with the intention of ceding the Floridas, and these grants have been treated as frauds on the United States.’ ‘ The increased motives for making them have been stated in argument, and their influence cannot be denied. But (say the court) admitting the charge to be well founded — admitting the Spanish government was more liberal in its cessions, than before — ought this circumstance to affect bona fide titles to which the United States made no objection ? ’
“ Now, with the most profound respect for the opinion of the Supreme Court of the United States, I cannot admit that the proposition is correctly stated, or that the deduction is properly drawn from the premises.
“ There is a vast difference, I conceive, between the liberality of the ‘Spanish Government,’ and the unlawful and unauthorized acts of a Spanish governor, who thinks proper to transcend his power in making grants, because he perceives that the country is about to be transferred to a foreign government. The government of Spain, in the person of the King, possessing sovereign and unbounded power over the royal domain, had an undeniable right, in some instances, to exercise liberality in its disposal. While the governor of a province, acting under fixed and limited rules prescribed by law, could not go beyond the law for the purpose of being liberal, and if he did, all such grants made by him must be absolutely null and void.”94
The Peculiar Absence of Original Deeds.
Elsewhere, in the logical course of the scrutiny, General Call wrote :
“ You will perceive that, in every case contained in this abstract, where the original title papers are not produced, the claim is presented under a concession, and not a perfect grant ; and that in every case the copy of the concession offered in evidence is certified by the same person, Thomas de Aguilar.
“ Alvarez states that all the original concessions made by the governors were deposited in the office of the secretary, whose duty it was at the time of making the concession to furnish a certified copy of it for the grantee. That this office was held from 1809 until 1821 by Thomas de Aguilar. That the original royal or real titles were signed by the governor, and deposited in the office of the escribano or notary of government, who, in like manner, furnished the grantee with a certified copy of his grant.
“ Now, it is worthy of remark that not a single instance has occurred in the investigation of the land claims of the country where a claimant has presented a copy of the grant certified by the escribano, in which the original grant was not found on examination in the public archives ; and yet that so many and such important cases should be presented under the certified copies given by Thomas de Aguilar, for which no original can be found.
“ It has been attempted to explain this circumstance, by the fact that the perfect grants or real titles were drawn and signed on the protocols of the notary, and that they were afterward bound in books, which rendered them less liable to be mislaid and lost than the concessions which were merely tied up in bundles. But it is a fact well known, that two-thirds of these original complete titles are still remaining in the sheets on which they are described by the witness to have been drawn ; and the difference in the correspondence between the originals and the copies from the two offices, can only be accounted for by the difference in the fidelity and integrity of the two offices by whom the originals were kept, and the copies certified.”
General Call then went on to point out “that the remarkable difference in the quantity of land contained in the real titles given by Governor White, and that contained in the certified copies of concessions, said to have been made by him, is worthy of consideration, and goes far to sustain the belief that there never were any originals in those cases.” Call continued :
Why Had the Claims Been Held Back ?
“ But if these large concessions are genuine — if they were issued in 1794, 1809, 1810 and 1811, according to their respective dates, why, permit me to ask, were they not matured into real titles under the government of Spain ? Were these concessions of 256,000 and 368,644 acres of so little importance as to be neglected by the claimants, or were they not sensible of the necessity of having their titles confirmed ?
Some of them, at least, appear to have been sufficiently apprised of this necessity, for we find the same Arredondo and the same Miranda, who now claim under these large concessions, applying for and obtaining confirmations of titles for tracts of four, five, and six hundred acres, so late as the years 1820 and 1821, as will be shown by reference to document marked B. These parties knew full well, that under the laws and ordinances of Spain, and under the practice and usage of that government, the concession, if legal and proper, gave them but the inception of right, and that until consummated by a ‘real’ title, they could enjoy no permanent estate in the land. Most of them were inhabitants of the town of St. Augustine, the seat of the provincial government, and must have been apprised for several years of the anticipated transfer of the province to the United States.
“ From the character of these claims, and the conduct of the claimants, it is difficult to avoid one or two conclusions, both of which are equally fatal to the interest of the parties. First, that they are spurious, or secondly, that their confirmation was denied by the Spanish authorities. For we cannot believe that individuals holding these large concessions would neglect to apply for their confirmation, at a time when they were soliciting and obtaining perfect titles for small tracts, of so much less importance.”
The Mitchell Decision Denounced.
Then proceeding to show how “the grossest frauds on the government may be rendered successful, by concealing or destroying the originals,” General Call went on :
“ There are certainly many reasons why these copies should not be received in evidence, until the absence of the originals shall have been satisfactorily accounted for. Until this is done, the rules of evidence forbid them to be received and a departure from those well-known and salutary rules would open a door for fraud, not to be closed, so long as the government has one acre of unappropriated land in Florida.
“ What other security, I would ask, can the government have against spurious and pretended claims, than to require the production of the original grant, or that its absence should be satisfactorily accounted for ?
“ Forgeries may be detected by comparison, and proof of genuine signatures ; but as it was the duty and practice of Thomas de Aguilar to give copies of all concessions made by the governor to the claimant, if he has, since the transfer of the country to the United States, been induced to give certified copies of concessions, when there are no originals, what check or control can be placed on his fraudulent designs, and those with whom he may have been associated, than to require that the originals shall be found in the office where the copy professed to have left them, or proof that they once existed there, and that they have since been lost or destroyed ?
. . . . . . . . . . . . . . . . . . . .
“ In reply to that part of your letter which requires me to state whether, in my opinion, these cases, or any of them, are embraced by the decisions already given by the Supreme Court of the United States ; in candor I must say, that as bad as I believe these cases to be, yet I consider the worst of them little inferior in law or equity to most of them already decided by the court ; and that the principle settled in the case of Mitchell and others vs. the United States, will, if applied, cover all the objections which can be presented to the confirmation of any of the cases now depending in any of the courts of the Territory, except in those cases where the land is situated within the Indian boundary, on which I shall hereafter offer a few remarks. I consider that the badges of fraud were as strongly developed in the cases of Mitchell and others as they are in the worst of the cases contained in abstract No. 2.
“ So far as the question of evidence is involved, there is an exact correspondence between that case and those which depend upon certain copies of concessions.
“ In the case of Mitchell and others, the copies on which the suit was founded were taken from copies certified to by Pablo de Lorin, secretary, and Maximilian de Maxent, lieutenant governor, of West Florida. In the cases now depending in court, the copies are certified by Thomas de Aguilar, secretary of the government of East Florida. In both, the certificate states that the original remains in the archives. The archives of East and West Florida, and the archives of Cuba, have been diligently searched, and no original is to be found. In both, the absence of the originals were entirely unaccounted for.”
As to the acceptance of these certified copies by the Supreme Court of the United States, as sufficient proof of the originals, General Call wrote : “ One would suppose, from the description of these certified copies, thus given by the court, that they were notarial acts, or ‘authentic acts’; that they were executed by a notary public, with all the forms and ceremonies ; and that they were entitled to all the faith and credit given to such instruments by the civil law. ... Now it will be shown, by an examination of each, that the originals were not notarial instruments. That they were not written on a notarial protocol, or countersigned by a notary public. Nor was any one of the copies taken from the originals by a notary public, and signed and certified by him as such. On the contrary, they are all, both originals and copies, what are termed in the civil law private acts, and entitled to no faith or credit whatever.”95
Yet on the sole strength of these alleged copies, the Supreme Court of the United States validated then and eventually the defrauding of 2,711,290 acres of the best lands in Florida, and tens of millions of acres elsewhere.
Death of Chief Justice Marshall.
But when these penetrating criticisms appeared, Chief Justice Marshall was no more. He died on July 6, 1835, aged eighty years.
The funeral ceremonies were impressive, the eulogies imposingly laudatory. The legacy that he bequeathed to the governing class was of incalculable value : precedents established by him have been applied and amplified ever since as organic principles of law and government, and the omnipotent authority of the Supreme Court of the United States, so successfully asserted by him, has not only remained unimpaired, but has been extended even to the point of declaring that while conquered colonies are subject to the authority of the United States, the Constitution does not apply to them.
As a jurist, John Marshall’s fame has been overdrawn and lavishly colored. It is in his capacity of judicial dictator that he should be noted, and stand supreme ; of monarchical and other dictators the world has seen a plenitude, but of the juridical dictator who could at will annul and create law in a supposed republic, the like of John Marshall had never before been known. For thirty-four years he had dispensed his law, the never-varying purpose and end of which was always, and under all circumstances, justification of methods and policies benefiting the governing class of wealth and power.96
1 Cranch’s Reports, Supreme Court of the United States, Vol. VII: 164.
2 New Hampshire Reports, Vol. I : III. The full report of the case, containing the arguments, is reprinted in 65 New Hampshire Reports, 473.
3 Case of Trustees of Dartmouth College vs. Woodward, IV Wheaton, 518.
4 “ Life of Webster” (American Statesmen Series), p. 87.
5 “ Journal of Debates and Proceedings of the Massachusetts Convention, 1820”: 283-295.
6 “ Dartmouth College Causes,” 201. Webster was an attorney for the Salem Bank, and other local banks.— See, Mass. Reports, Vol. XVII: 39, etc.
The fact of judges owning stock in bank, insurance and other companies was such a notorious scandal, that finally, in 1836, a proposed new Penal Code was suggested. Chancellor Kent wrote to its author : . . . “ But I complain more loudly of your restraints on judges, at p. 38. You prohibit a judge from receiving any gift, except by will, from a stranger. Now I do think this is unjust, and assume an unwarrantable distrust of judicial integrity. At p. 40 you go further, and make it penal for a judge to be a stockholder in a bank or insurance company. I have read this article with surprise. You might as well make it penal for a judge to own houses and lands, or bonds and mortgages, or even a beautiful and accomplished wife,” etc., etc.—“American jurist,” Vol. XVI : 365. In the same letter, Kent wrote as to offenses against injuries to property : “I am a friend to personal chastisement and hanging” (p, 370).
7 Reports Nos. 460-463. First Session, Twenty-second Congress, 1831.
8 “Thirty Years' View,” Vol. II: 365. Benton was long a powerful politician, and a leader of the Democratic Party.
9 “ Thirty Years' View,” Vol. II: 366.
10 Pa. House Journal, 1842, Vol. II : Appendix, 172-531.
11 Described in Chapter V.
12 Case of Gibbons vs. Ogden, IX Wheaton, 1-240.
13 The full facts are given in the “ History of the Great American Fortunes,” Vol. II.
14 See, Alexander’s “A Political History of the State of New York,” Vol. I. 155.
15 Wheaton’s Reports, Supreme Court of the United States, Vol, X : 79.
16 Ibid., 120-121.
17 The slave trade was prohibited to American citizens by acts of Congress of 1794, 1800 and March 3, 1819. Each act increased the penalties, finally prescribing capital punishment for violation and conviction.
18 X Wheaton, 122. Marshall reversed part of the lower court’s decision and affirmed other portions.
19 See details in Chapter IX.
20 X Wheaton, 137.
21 Ibid., 142-143.
22 See, Chapter IX. These two decisions — those of Marshall and Story — practically extended the fullest license and immunity to the slave traders. Wilson tells in his “Rise and Fall of the Slave Power in America” that the time came when there were at least 100,000 negroes who had been snatched from Africa and sold in the United States and that they were held in bondage despite the plain laws on the subject forbidding the importation of negro slaves. The traffic in slave trading was large and continuous, and the profits were so enormous that the slave traders looked with complacency upon the loss of part of their human cargo. It was cheaper to herd the negroes in foul quarters on the ships and lose some of them than to go to the expense of providing adequate room, shelter and food.
23 A report of a select committee of the House of Representatives, February 25, 1829, said that the “ population of part of the eastern section of our country has nearly reached its highest point ; its surplus is filling up New York and tends strongly toward the West.” “American State Papers : Public Lands,” Vol. VII, Doc. No. 747.
24 Doc. No. 91, Eighth Congress, First Session.
25 “ American State Papers : Public Lands,” Vol. II : 441. The report does not state the number of individuals. But that a great part of this vast area was held for speculative purposes is distinctly set forth in the report.
26 “ American State Papers : Public Lands,” Vol. II : 888-889.
27 Executive Reports, First Session, Eighteenth Congress, 1824, Report No. 61.
28 U.S. Senate Docs., 1824-25, No. 25, etc.
29 See, Book IV, Chapter XII, Collection of the Laws of the Indies.
30 See. “ American State Papers : Public Lands,” Vol. I: 282. (Doc. No. 126.)
31 “ American State Papers : Public Lands,” Vol. I: 188. (House Doc. No. 94, Eighth Congress, First Session.)
32 Ibid., 188-189.
33 This town, one hundred and fifty years ago, was the largest town west of the Alleghanies. To-day a single smokehouse is all that remains of the old French town, and it is expected that even the smokehouse will have disappeared beneath the waters of the Mississippi River, which has swallowed up the rest of the town.
34 “ American State Papers : Public Lands,” Vol. I: 189.
35 “ American State Papers : Public Lands,” Vol. I : 189.
36 Ibid., 193-194. (Doc. No. 99.)
37 Ibid., 590.
38 “ American, State Papers : Public Lands,” Vol. II : 235-237.
39 Ibid., 204.
40 Ibid.
41 Ibid., 203.
42 Ibid., 123.
43 Ibid.
44 Ibid., 126.
45 “American State Papers : Public Lands,” Vol. II : 203.
46 Ibid., 123-126.
47 While Edgar and the Morrisons were thus manufacturing evidence in wholesale, they were petitioning Congress to allow the introduction of slaves into Illinois. They could not, they complained, hire a laborer for less than a dollar a day, exclusive of washing, lodging and boarding. Their petition was rejected by Congress.—Ibid., Vol. I: 68.
48 Ibid., 126-127.
49 Ibid., Vol. II : 257-258.
50 “ American State Papers : Public Lands,” Vol. III : 250.
51 Ibid.
52 Ibid., 249.
53 It was one of many other such claims confirmed by Congress three years later. (See, Ibid., 276-277.) Miller and Fulton were the principals in both the Red River and the Bayou Bœuf Indian swindles. They claimed that the Appalache tribe owed them $2,600 for merchandise. This the Appalache chiefs denied, saying that the debt was owed by the Conchatte tribe, who were occupying the Appalache lands by courtesy. The Bayou Bœuf claim was also founded on alleged debts for merchandise.
54 See, “American State Papers : Public Lands,” Vol. I : 150.
55 The history and final confirmation of this grant by Congress, in 1854, is related in the chapters on Chief Justice Taney.
56 See later.
57 Peters’ Reports, Supreme Court of the United States, Vol. VIII: Appendix, 721.
58 “ American State Papers : Public Lands,” Vol. IV: 759.
59 Ibid., Vol. II : 766.
60 Ibid., 768.
61 Ibid., Vol. III : 770.
62 Ibid., 867. (Doc. No. 413.) The italics are in the original.
63 “ American State Papers : Public Lands,” Vol. III : 873.
64 Ibid., Vol. IV: 758. Both aspects of this controversy are given here. Hamilton’s exposures were, however, supported by later Government investigations which showed that he really underestimated the extent of the frauds.
65 Ibid., Vol. III: 765. (Doc. No. 412.)
66 See, Attorney-General Call’s exhaustive report, “American State Papers : Public Lands,” Vol. VIII: 250. (Doc. No. 1348.)
67 Ibid.
68 Ibid., 253.
69 The common arpent contained 40,000 feet, approximately the same as an English acre.
70 “ American State Papers : Public Lands,” Vol. IV: 158.
71 Doc. No. 1538, “ American State Papers : Public Lands,” Vol. VIII.
72 To plead justification under the “ innocent purchaser ” guise was a common accompaniment of land and other frauds, and was artfully arranged. Thus, Colonel Preston of the Land Office at Little Rock, Arkansas, in acquainting Graham, Commissioner of the General Land Office, with further facts as to the enormous frauds and impositions committed in Arkansas, wrote, on October 10, 1829 : “. . . As to the fact that many of these claims have fallen into the hands of innocent purchasers, it is worthy of serious consideration, for the greatest efforts have been made to distribute them ; but I have no doubt where one is in the hands of an individual entirely deceived, three are in possession of persons who have sufficient reasons to be on their guard. . . .”—“ American State Papers : Public Lands,” Vol. VI: 7.
73 Ibid., Vol. IV: 47. Report to George Graham, Commissioner of the General Land Office.
74 “ American State Papers : Public Lands,” Vol. V : 796.
75 Ibid., Vol. VI, Doc. No. 747.
76 Ibid., 509-510. The Vallee Claim was the Mine la Mone tract of 27,000 arpents.
77 “American State Papers : Public Lands,” Vol. VI: 97.
78 Ibid., Vol. V : 633-634. White was assistant counsel to the Government on Spanish and French ordinances affecting land titles in Florida and other territories.
79 Many of the members of Congress, as has been noted, were on the payrolls of the Bank of the United States, and were otherwise profiting from corrupt legislation. Not a few of the members of Congress became millionaires. As for the Land Office, its officials were frequently under fire of charges of corruption. Charges of fraud and corruption against Graham, Commissioner of the General Land Office, and Surveyor George Davis, were brought by Deputy-Surveyor Wilson, in 1827, but were dismissed by the House Committee on Public Lands. (See, “American State Papers : Public Lands,” Vol. IV: 922-957.) Graham and Davis retorted by charging that corrupt individuals were behind Wilson.
80 See, Assistant Attorney-General Call’s statement, VIII Peters : Appendix, 721.
81 See, VI Peters, 689-759. This decision served as a great precedent ; it was cited as authority in no less than several hundred subsequent cases.
82 See, U.S. vs. Segui ; U.S. vs. Seton ; U.S. vs. Sibbald, etc., etc., X Peters, 303-324.
83 Case of Carver vs. Jackson ex. dem. Astor et al., V Peters, 80. Also Journal of the (N.Y.) Senate, 1815 : 216—Journal of the (N.Y.) Assembly, 1878 : 261, and Ibid., 1819. See, also, “A Statement and Exposition of the Title of John Jacob Astor to the Lands Purchased by him from the surviving children of Roger Morris and Mary, his Wife.” New York, 1827.
84 Hampshire’s Reports (U.S. Circuit and District Courts) [1820-1856], pp. 123, 127, etc. Also 27 Federal Cases, Case No. 16,216a, in which Judge Johnson describes the great corruption, forgeries and perjuries. Also the Supreme Court’s decision in VI Peters, 222. Also, “American State Papers : Public Lands,” Vol. VII: 666-669. (Report of House Committee on Public Lands, Feb. 24, 1835.)
85 “ American State Papers : Public Lands,” Vol. VI: 226-247. (Doc. No. 874.) Delassus had been the successor of Trudeau, as Governor, at St. Louis, six years before the cession to the United States. Describing the antedated grants made by Trudeau and Delassus, Judge Peck later wrote :
“ While, as I have said, Delassus made his antedated concessions bear date for the most part in 1799 and 1800, for the purpose of covering up matters handsomely, and preserving fair appearances, that no excess should appear to have been committed by him near the close of his official career ; Trudeau, his predecessor, in the antedated concessions made by him, after he had left the government, and, of course, not until after the treaty of cession by Spain to France was known, was compelled for different reasons, to make them bear date toward the close of the period of his government, and within about the last three years of it ; so that it will be perceived by looking at the concessions of the Spanish government, issued at the post of St. Louis, nine-tenths, possibly near nineteen-twentieths, of the quantity of land conceded during the thirty-three years of the Spanish government was conceded in a little more than four years ; conceded neither at the first, nor at the last of the government, but in the years 1797, 1798, 1799, and 1800, and a few of the antedated claims in 1796.” “American State Papers : Public Lands,” Vol. VIII: 837.
86 Griswold had many ships plying in the East India and China trade. He was one of the promoters and original directors of the Bank of America at a time when, in 1812, a legislative investigation revealed (as we have before noted) that its charter was obtained by bribery. The favors allowed by the government to the shippers in the East India and China trade, enabling them to reap enormous profits and use government money as their private capital, aroused the opposition of other shippers. “ Why,” wrote the Mercantile Society, of New York, in 1821, to the House Committee on Manufactures, “should the merchant engaged in the East India trade, who is the overgrown capitalist, have the extended credit of twelve months in his duties, the amount of which on one cargo furnishes nearly a sufficient capital for completing another voyage, before his bonds are payable ?”—Reports of Committees, Second Session, Sixteenth Congress, 1820-21, Vol. I, Doc. No. 24.
87 IX Peters, 711.
88 The full details of this debauching of the Indians are given in the “ History of the Great American Fortunes,” Vols. I and III. The Secretary of War, at that time, had supreme jurisdiction over the Indian tribes. The records frequently tell of claims trumped up against the Indians.
89 “American State Papers : Public Lauds,” Vol. V : 329-341. (Doc. No. 599.)
90 Senator Benton, who was Chairman of the Senate Committee on Indian Affairs, at the time, described this corruption, and named the sums, in his “ Thirty Years In The Senate,” pages 58-60. So enraged were the Creeks at this disposing of their land, that they killed McIntosh and another chief who had signed the treaty.
91 IX Peters, 731. The Supreme Court took the position that every European government had claimed, and exercised, the right of granting lands while those lands were in the occupation of the Indians. The Mitchell decision was followed by other decisions validating alleged Indian conveyances.— See, U.S. vs. Fernandez et al., X Peters, 303, etc.
92 “ American State Papers : Public Lands,” Vol. VIII: 807.
93 It is obviously out of the question, in the scope of this work, to give even a satisfactorily comprehensive summary of Judge Peck’s very extended examinations of the Spanish land claims. The student who wishes to consult them in detail is referred to Doc. No. 1538, “ American State Papers : Public Lands,” Vol. VIII: pages 797-809, 810-812, etc. Judge Peck’s statements included certified transcripts of Spanish and French records from the old land office at St. Louis.
94 “ American State Papers : Public Lands,” Vol. VIII: 252.
95 The above are integral and consistent parts of the whole of General Call’s voluminous critical review. The full paper is set forth in Document No. 1348, “ American State Papers : Public Lands,” Vol. VIII.
96 One of the suggestive expressions of opinion on Marshall’s career was that of William Leggett, a founder of the Equal Rights Party and co-editor with William Cullen Bryant of the New York Evening Post. When Marshall died, the New York Evening Post, on July 28, 1835, published an editorial by Leggett. “. . . Few things,” wrote Leggett, “ have ever given us more disgust than the fawning, hypocritical and unqualified lamentations which are poured out by the public press on the demise of any conspicuous political opponent. Of the man whom the day before it denounced in terms of the most unmeasured bitterness, let him but shuffle off his mortal coil, and the next day it is loud in indiscriminating, unlimited praise. . .” Leggett then went on to say that although tribute should be paid to Marshall’s many estimable qualities and powers of mind, yet “ we cannot but experience joy ” that the chief place in the supreme tribunal of the Union would be no longer filled by such a judge as Marshall, and that no grief would be felt “ that the cause of aristocracy has lost one of its chief supports.”—“ A Collection of the Political Writings of William Leggett” (Edition of 1840), Vol. II: 3-7.