Section 25 of the Judiciary Act, "attempts, in Fact, to Make the State

Courts Inferior Federal Courts." The appellate jurisdiction conferred on the Supreme Court, and the word "supreme" itself, had reference to inferior National courts and not to State courts.

Judge Roane's opinion was very long and discussed extensively every phase of the controversy. He held that, in giving National courts power over State courts, Section 25 of the Ellsworth Judiciary Act violated the National Constitution. If National courts could control State tribunals, it would be a "plain case of the judiciary of one government correcting and reversing the decisions of that of another." The Virginia Court of Appeals "is bound, to follow its own convictions ... any thing in the decisions, or supposed decisions, of any other court, to the contrary notwithstanding." Let the court at Winchester, therefore, be instructed to execute the judgment of the State Court of Appeals.

Such was the open, aggressive, and dramatic defiance of the Supreme Court of the United States by the Court of Appeals of Virginia. Roane showed his opinion to Monroe, who approved it and sent it to Jefferson at Monticello. Jefferson heartily commended Roane, whereat the Virginia judge was "very much flattered and gratified."

Promptly Philip Martin, through James M. Marshall, took the case to the Supreme Court by means of another writ of error. It now stood upon the docket of that court as Martin vs. Hunter's Lessee. Again Marshall refused to sit in the case. St. George Tucker of Virginia, one of the ablest lawyers of the South, and Samuel Dexter, the leader of the Massachusetts bar, appeared for Hunter. As Harper had done on the first appeal, both Tucker and Dexter called attention to the fact that the decision of the Virginia Court of Appeals did not rest exclusively upon the Treaty of Peace, which alone in this case would have authorized an appeal to the Supreme Court.

Story delivered the court's opinion, which was one of the longest and ablest he ever wrote. The Constitution was not ordained by the States, but "emphatically ... by 'the people of the United States.'... Its powers are expressed in general terms, leaving to the legislature, from time to time, to adopt its own means to effectuate legitimate objects, and to mold and model the exercise of its powers, as its own wisdom and the public interests should require." Story then quotes Sections 1 and 2 of Article III of the Constitution, and continues: Thus is "the voice of the whole American people solemnly declared, in establishing one great department of that government which was, in many respects, national, and in all, supreme." Congress cannot disregard this Constitutional mandate. At a length which, but for the newness of the question, would be intolerable, Story demonstrates that the Constitutional grant of judiciary powers is "imperative."

What, then, is the "nature and extent of the appellate jurisdiction of the United States"? It embraces "every case ... not exclusively to be decided by way of original jurisdiction." There is nothing in the Constitution to "restrain its exercise over state tribunals in the enumerated cases.... It is the case, ... and not the court, that gives the jurisdiction." If the appellate power does not extend to State courts having concurrent jurisdiction of specified cases, then that power does "not extend to all, but to some, cases"--whereas the Constitution declares that it extends to all other cases than those over which the Supreme Court is given original jurisdiction.

With great care Story shows the "propriety" of this construction. Then, with repetitiousness after the true Marshall pattern, he reasserts that the Constitution acts on States as well as upon individuals, and gives many instances where the "sovereignty" of the States are "restrained." State judges are not independent "in respect to the powers granted to the United States"; and the appellate power of the Nation extends to the State courts in cases prescribed in Section 25 of the Judiciary Act; for the Constitution does not limit this power and "we dare not interpose a limitation where the people have not been disposed to create one."

The case decided on the former record, says Story, is not now before the court. "The question now litigated is not upon the construction of a treaty, but upon the constitutionality of a statute of the United States, which is clearly within our jurisdiction." However, "from motives of a public nature," the Supreme Court would "re-examine" the grounds of its former decision. After such reëxamination, extensive in length and detail, he finds the first decision of the Supreme Court to have been correct.

Story thus notices the Marshall adjustment of 1796: "If it be true (as we are informed)" that the compromise had been effected, the court could not take "judicial cognizance" of it "unless spread upon the record." Aside from the Treaty of Peace, the Fairfax title "was, at all events, perfect under the treaty of 1794." In conclusion, Story announces: "It is the opinion of the whole court that the judgment of the Court of Appeals of Virginia, rendered on the mandate in this cause, be reversed, and the judgment of the District Court, held at Winchester, be, and the same is hereby affirmed."

It has been commonly supposed that Marshall practically dictated Story's two opinions in the Fairfax-Hunter controversy, and certain writers have stated this to be the fact. As we have seen, Story himself, fifteen years afterwards, declared that the Chief Justice had "concurred in every word of the second opinion"; yet in a letter to his brother concerning the effect of Story's opinion upon another suit in the State court at Winchester, involving the same question, Marshall says: "The case of Hunter & Fairfax is very absurdly put on the treaty of 94."

Justice Johnson dissented in an opinion as inept and unhappy as his dissent in Fletcher vs. Peck. He concurs in the judgment of his brethren, but, in doing so, indulges in a stump speech in which Nationalism and State Rights are mingled in astounding fashion. The Supreme Court of the United States, he says, "disavows all intention to decide on the right to issue compulsory process to the state courts." To be sure, the Supreme Court is "supreme over persons and cases as far as our judicial powers extend," but it cannot assert "any compulsory control over the state tribunals." He views "this question as one ... which may affect, in its consequences, the permanence of the American Union," since the Nation and "one of the greatest states" are in collision. The "general government must cease to exist" if the Virginia doctrine shall prevail, but "so firmly" was he "persuaded that the American people can no longer enjoy the blessings of a free government, whenever the state sovereignties shall be prostrated at the feet of the general government," that he "could borrow the language of a celebrated orator, and exclaim: 'I rejoice that Virginia has resisted.'" Nevertheless, Johnson agrees with the judgment of his associates and, in doing so, delivers a Nationalist opinion, stronger if possible than that of Story.

The public benefits and the historic importance of the decision was the assertion of the supremacy of the Supreme Court of the Nation over the highest court of any State in all cases where the National Constitution, laws and treaties--"the supreme law of the land"--are involved. The decision of the Supreme Court in Martin vs. Hunter's Lessee went further than any previous judicial pronouncement to establish the relation between National courts and State tribunals which now exists and will continue as long as the Republic endures.

When the news of this, the first Constitutional opinion ever delivered by Story, got abroad, he was mercilessly assailed by his fellow Republicans as a "renegade." Congress refused to increase the salaries of the members of the Supreme Court, who found it hard to live on the compensation allowed them, and Story seriously considered resigning from the bench and taking over the Baltimore practice of Mr. Pinkney, who soon was to be appointed Minister to Russia. The decision aroused excitement and indignation throughout Virginia. Roane's popularity increased from the Tide Water to the Valley. The Republican organization made a political issue of the judgment of the National tribunal at Washington. Judge Roane issued his orders to his political lieutenants. The party newspapers, led by the Enquirer, inveighed against the "usurpation" by this distant Supreme Court of the United States, a foreign power, an alien judiciary, unsympathetic with Virginia, ignorant of the needs of Virginians.

This conflict between the Supreme Court of the United States and the Court of Appeals of Virginia opened another phase of that fundamental struggle which war was to decide--a fact without knowledge of which this phase of American Constitutional history is colorless.

Not yet, however, was the astute Virginia Republican triumvirate ready to unloose the lightnings of Virginia's wrath. That must be done only when the whole South should reach a proper degree of emotion. This time was not long to be delayed. Within three years Marshall's opinion in M'Culloch vs. Maryland was to give Roane, Ritchie, and Taylor their cue to come upon the stage as the spokesmen of Virginia and the entire South, as the champions, indeed, of Localism everywhere throughout America. Important were the parts they played in the drama of Marshall's judicial career.

FOOTNOTES:

See vol. III, chap. III, of this work.

This is a fair inference from the statement of Joseph Story in his autobiography: "I have ever considered the embargo a measure, which went to the utmost limit of constructive power under the Constitution. It stands upon the extreme verge of the Constitution, being in its very form and terms an unlimited prohibition, or suspension of foreign commerce." (Story, I, 185-86.) When it is remembered that after Story was made Associate Justice his views became identical with those of Marshall on almost every subject, it would seem likely that Story expressed the opinions of the Chief Justice as well as his own on the constitutionality of the Embargo.

See, for instance, the case of William Dixon et al. vs. The United States, 1 Brockenbrough, 177; United States vs. ----, ib. 195; the case of the Fortuna, ib. 299; the case of the Brig Caroline, ib. 384; Thomson and Dixon vs. United States (case of the Schooner Patriot), ib. 407.

1 Brockenbrough, 241.

See Warren, 279.

Story to Fay, April 24, 1814, Story, I, 261.

Marshall to Story, May 27, 1819, Proceedings, Mass. Hist. Soc. 2d Series, XIV, 325. This was the case of the Little Charles.

Same to same, July 13, 1819, ib. 326.

Same to same, June 15, 1821, ib. 327; Sept. 18, 1821, ib. 331; Dec. 9, 1823, ib. 334; June 26, 1831, ib. 344.

Same to same, July 2, 1823, ib. 331-33.

Same to same, Oct. 15, 1830, ib. 342.

John Bassett Moore, in his Digest of International Law, cites Marshall frequently and often uses passages from his opinions. Henry Wheaton, in his Elements of International Law, sometimes quotes Marshall's language as part of the text.

Professor John Bassett Moore, in a letter to the author, says that he considers Marshall's opinion in this case his greatest in the realm of international law.

Am. State Papers, For. Rel. III, 384.

7 Cranch, 136.

7 Cranch, 137.

Ib. 138-39.

Ib. 141.

7 Cranch, 147.

See John Bassett Moore in Dillon, I, 521-23.

See supra, chap. I.

3 Wheaton, 610-44.

Ib. 614.

3 Wheaton, 634-35.

4 Wheaton, 63-64.

8 Cranch, 253-317.

John Bassett Moore in Dillon, I, 524.

8 Cranch, 289.

Ib. 291-92.

Ib. 293.

9 Cranch, 388 et seq.

Until the February session of 1817. This room was not destroyed or injured by the fire, but was closed while the remainder of the Capitol was being repaired. In 1817, the court occupied another basement room in the Capitol, where it continued to meet until February, 1819, when it returned to its old quarters in the room where the library of the Supreme Court is now situated. (Bryan: History of the National Capital, II, 39.)

Ib., I, 632. Mr. Bryan says that this house still stands and is now known as 204-06 Pennsylvania Avenue, S.E.

Ticknor to his father, Feb. 1815, Ticknor, I, 38.

"His opinions had almost acquired the authority of judicial decisions." (Pinkney: Life of William Pinkney, quotation from Robert Goodloe Harper on title-page.)

"He has ... a dogmatizing absoluteness of manner which passes with the million, ... for an evidence of power; and he has acquired with those around him a sort of papal infallibility." (Wirt to Gilmer, April 1, 1816, Kennedy, I, 403.)

Wirt's estimate of Pinkney must have been influenced by professional jealousy, for men like Story and Marshall were as profoundly affected by the Maryland legal genius as were the most emotional spectators. See the criticisms of Wirt's comments on Pinkney by his nephew, Rev. William Pinkney, in his Life of William Pinkney, 116-22.

Ticknor to his father, Feb. [day omitted] 1815, Ticknor, I, 38-40.

Story to Williams, Feb. 16, 1812, Story, I, 214; and March 6, 1814, ib. 252.

"At the bar he is despotic and cares as little for his colleagues or adversaries as if they were men of wood." (Wirt to Gilmer, April 1, 1816, Kennedy, I, 403.)

The late Roscoe Conkling was almost the reincarnation of William Pinkney. In extravagance of dress, haughtiness of manner, retentiveness of memory, power and brilliancy of mind, and genuine eloquence, Pinkney and Conkling were well-nigh counterparts.

Ticknor to his father, Feb. 21, 1815, Ticknor, I, 40.

Ib. Feb. 1815, 39-40.

Pinkney, 100-01.

Story to his wife, March 10, 1814, Story, I, 253.

Mrs. Samuel Harrison Smith to Mrs. Kirkpatrick, March 13, 1814, First Forty Years of Washington Society: Hunt, 96.

Pinkney especially would become eloquent, even in an argument of dry, commercial law, if women entered the court-room. "There were ladies present--and Pinkney was expected to be eloquent at all events. So, the mode he adopted was to get into his tragical tone in discussing the construction of an act of Congress. Closing his speech in this solemn tone he took his seat, saying to me, with a smile--'that will do for the ladies.'" (Wirt to Gilmer, April 1, 1816, Kennedy, I, 404.)

The presence of women affected others no less than Pinkney. "Webster, Wirt, Taney ... and Emmet, are the combatants, and a bevy of ladies are the promised and brilliant distributors of the prizes," writes Story of an argument in the Supreme Court many years later. (Story to Fay, March 8, 1826, Story, I, 493.)

This is illustrated by the passage in Pinkney's argument to which Marshall in his opinion paid such a remarkable tribute (see infra, 141).

9 Cranch, 418-19.

9 Cranch, 419-20.

Ib. 422-23.

9 Cranch, 425.

9 Cranch, 426-29.

Ib. 428-29.

"We ... have Neutrality, soft and gentle and defenceless in herself, yet clad in the panoply of her warlike neighbours--with the frown of defiance upon her brow, and the smile of conciliation upon her lip--with the spear of Achilles in one hand and a lying protestation of innocence and helplessness unfolded in the other. Nay, ... we shall have the branch of olive entwined around the bolt of Jove, and Neutrality in the act of hurling the latter under the deceitful cover of the former....

"Call you that Neutrality which thus conceals beneath its appropriate vestment the giant limbs of War, and converts the charter-party of the compting-house into a commission of marque and reprisals; which makes of neutral trade a laboratory of belligerent annoyance; which ... warms a torpid serpent into life, and places it beneath the footsteps of a friend with a more appalling lustre on its crest and added venom in its sting." (Wheaton: Some Account of the Life, Writings, and Speeches of William Pinkney, 463, 466.)

Pinkney frankly said that his metaphors, "hastily conceived and hazarded," were inspired by the presence of women "of this mixed and (for a court of judicature) uncommon audience." (Ib. 464-65.)

Except for this exhibition of rodomontade his address was a wonderful display of reasoning and erudition. His brief peroration was eloquence of the noblest order. (See entire speech, Wheaton: Pinkney, 455-516.)

See vol. I, 72, 195, of this work.

9 Cranch, 430-31.

Ib. 430.

"Never in my whole life was I more entirely satisfied that the Court were wrong in their judgment. I hope Mr. Pinkney will ... publish his admirable argument ... it will do him immortal honor." (Story to Williams, May 8, 1815, Story, I, 256.)

Exactly the same question as that decided in the case of the Nereid was again brought before the Supreme Court two years later in the case of the Atalanta. (3 Wheaton, 409.) Marshall merely stated that the former decision governed the case. (Ib. 415.)

The American Insurance Company et al. vs. David Canter, 1 Peters, 511-46.

1 Peters, 511-46.

Ib. 542.

1 Peters, 542.

Ib. 546.

Story wrote George Ticknor that Marshall "concurred in every word of it." (Story to Ticknor, Jan. 22, 1831, Story, II, 49.)

"Let us extend the national authority over the whole extent of power given by the Constitution. Let us have great military and naval schools; an adequate regular army; the broad foundations laid of a permanent navy; a national bank; a national system of bankruptcy; a great navigation act; a general survey of our ports, and appointments of port-wardens and pilots; Judicial Courts which shall embrace the ... justices of the peace, for the commercial and national concerns of the United States. By such enlarged and liberal institutions, the Government of the United States will be endeared to the people.... Let us prevent the possibility of a division, by creating great national interests which shall bind us in an indissoluble chain." (Story to Williams, Feb. 22, 1815, ib. I, 254.)

Later in the same year Story repeated these views and added: "I most sincerely hope that a national newspaper may be established at Washington." (Story to Wheaton, Dec. 13, 1815, ib. 270-71.)

Professor William E. Dodd, in Am. Hist. Rev. XII, 776.

For fuller description of the Virginia County Court system, see chap. IX of this volume.

On the Virginia Republican machine, Roane, Ritchie, etc., see Dodd in Am. Hist. Rev. XII, 776-77; and in Branch Hist. Papers, June, 1903, 222; Smith in ib. June, 1905, 15; Thrift in ib. June, 1908, 183; also Dodd: Statesmen of the Old South, 70 et seq.; Anderson, 205; Turner: Rise of the New West, 60; Ambler: Ritchie, 27, 82.

Several thousand acres of the Fairfax estate were not included in this joint purchase. (See infra, 150.)

1793-94. See vol. II, 202-11, of this work.

April 30, 1789. See Hunter vs. Fairfax's Devisee, 1 Munford, 223.

For the district composed of Frederick, Berkeley, Hampshire, Hardy, and Shenandoah Counties.

Order Book, Superior Court, No. 2, 43, Office of Clerk of Circuit Court, Frederick Co., Winchester, Va.

The judges rendering this decision were St. George Tucker and William Nelson, Jr. (Ib.)

In making out the record for appeal the fictitious name of Timothy Trititle was, of course, omitted, so that in the Court of Appeals and in the appeals to the Supreme Court of the United States the title of the case is Hunter vs. Fairfax's Devisee, instead of "Timothy Trititle, Lessee of David Hunter," vs. Fairfax's Devisee, and Martin vs. Hunter's Lessee.

1 Munford, 223.

See vol. II, footnote to 209, of this work.

The adjustment was made because of the memorial of about two hundred settlers or squatters (mostly Germans) on the wild lands who petitioned the Legislature to establish title in them. David Hunter was not one of these petitioners. Marshall agreed to execute deeds "extinguishing" the Fairfax title "so soon as the conveyance shall be transmitted to me from Mr. Fairfax." (Marshall to the Speaker of the House of Delegates, Va., Nov. 24, 1796. See vol. II, footnote to 209, of this work.) The Fairfax deed to the Marshalls was not executed until ten years after this compromise. (Land Causes, 1833, 40, Records in Office of Clerk of Circuit Court, Fauquier Co., Va.)

Two years later, on October 5, 1808, the Marshall brothers effected a partition of the estate between themselves on the one part and their brother-in-law on the other part, the latter receiving about forty thousand acres. (Deed Book 36, 302, Records in Office of Clerk of Circuit Court, Frederick Co., Va.)

On August 30, 1797, Denny Martin Fairfax conveyed to James M. Marshall all the Fairfax lands in Virginia "save and except ... the manor of Leeds." (See Marshall vs. Conrad, 5 Call, 364.) Thereafter James M. Marshall lived in Winchester for several years and made many conveyances of land in Shenandoah and Berkeley Counties. For instance, Nov. 12, 1798, to Charles Lee, Deed Book 3, 634, Records in Office of Clerk of Circuit Court, Frederick County, Va.; Jan. 9, 1799, to Henry Richards, ib. 549; Feb. 4, 1799, to Joseph Baker, Deed Book 25, ib. 561; March 30, 1799, to Richard Miller, Deed Book 3, ib. 602, etc.

All of these deeds by James M. Marshall and Hester, his wife, recite that these tracts and lots are parts of the lands conveyed to James M. Marshall by Denny Martin Fairfax on August 30, 1797. John Marshall does not join in any of these deeds. Apparently, therefore, he had no personal interest in the tract claimed by Hunter.

In a letter to his brother Marshall speaks of the Shenandoah lands as belonging to James M. Marshall: "With respect to the rents due Denny Fairfax before the conveyance to you I should suppose a recovery could only be defeated by the circumstance that they passed to you by the deed conveying the land." (Marshall to his brother, Feb. 13, 1806, MS.)

At the time when the Fairfax heir, Philip Martin, executed a deed to the Marshall brothers and Rawleigh Colston, conveying to them the Manor of Leeds, the lands involved in the Hunter case had been owned by James M. Marshall exclusively for nearly ten years.

After the partition with Colston, October 5, 1808, John and James M. Marshall, on September 5, 1809, made a partial division between themselves of Leeds Manor, and Goony Run Manor in Shenandoah County, the latter going to James M. Marshall.

These records apparently establish the facts that the "compromise" of 1796 was not intended to include the land claimed by Hunter; that James M. Marshall personally owned most of the lands about Winchester; and that John Marshall had no personal interest whatever in the land in controversy in the litigation under review.

This explains the refusal of the Supreme Court, including even Justice Johnson, to take notice of the compromise of 1796. (See infra, 157.)

When Lord Fairfax devised his Virginia estate to his nephew, Denny Martin, he required him to take the name of Fairfax.

Order Book, Superior Court of Frederick Co. Va., III, 721.

1 Munford, 223. The record states that Judge Tucker did not sit on account of his near relationship to a person interested.

It should be repeated that David Hunter was not one of the destitute settlers who appealed to the Legislature in 1796. From the records it would appear that he was a very prosperous farmer and land-owner who could well afford to employ the best legal counsel, as he did throughout the entire litigation. As early as 1771 we find him selling to Edward Beeson 536 acres of land in Frederick County. (Deed