Book 15, 213, Office of Clerk of Circuit Court, Frederick County, Va.)

The same Hunter also sold cattle, farming implements, etc., to a large amount. (Deeds dated Nov. 2, 1771, Deed Book cited above, 279, 280.) These transactions took place eighteen years before Hunter secured from Virginia the grant of Fairfax lands, twenty-five years before the Marshall compromise of 1796, thirty-eight years before Hunter employed Wickham to revive his appeal against the Fairfax devisee, forty-two years prior to the first arguments before the Supreme Court, and forty-five years before the final argument and decision of the famous case of Martin _vs._ Hunter's Lessee. So, far from being a poor, struggling, submissive, and oppressed settler, David Hunter was one of the most well-to-do, acquisitive, determined, and aggressive men in Virginia. [382] April 23, 1810. [383] By using the plural "appellees," Roane apparently intimates that Marshall was personally interested in the case; as we have seen, he was not. There was of record but one appellee, the Fairfax devisee. [384] 1 Munford, 232. The last two lines of Roane's language are not clear, but it would seem that the "objection" must have been that the Marshall compromise did not include the land claimed by Hunter and others, the title to which had been adjudged to be in Fairfax's devisee before the compromise. This is, indeed, probably the meaning of the sentence of Roane's opinion; otherwise it is obscure. It would appear certain that the Fairfax purchasers did make just this objection. Certainly they would have been foolish not to have done so if the Hunter land was not embraced in the compromise. [385] Since James M. Marshall was the American administrator of the will of Denny M. Fairfax, and also had long possessed all the rights and title of the Fairfax heir to this particular land, it doubtless was he who secured the writ of error from the Supreme Court. [386] 1 Munford, 238. [387] 7 Cranch, 608-09, 612. The reader should bear in mind the provisions of Section 25 of the Judiciary Act, since the validity and meaning of it are involved in some of the greatest controversies hereafter discussed. The part of that section which was in controversy is as follows: "A final judgment or decree in any suit, in the highest court of law or equity of a state in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under any state, on the ground of their being repugnant to the constitution, treaties or laws of the United States, and the decision is in favor of such their validity; or where is drawn in question the construction of any clause of the constitution, or of a treaty, or statute of, or commission held under the United States, and the decision is against the title, right, privilege or exemption specially set up or claimed by either party, under such clause of the said constitution, treaty, statute or commission, may be re-examined and reversed or affirmed in the supreme court of the United States upon a writ of error." [388] Randall, II, 35-36. [389] For a full and painstaking account of the Granville grant, and the legislation and litigation growing out of it, see Henry G. Connor in _University of Pennsylvania Law Review_, vol. 62, 671 _et seq._ [390] See vol. I, 192, of this work. [391] Connor in _Univ. of Pa. Law Rev._ vol. 62, 674-75. [392] _Ib._ 676. [393] See _supra_, 69. [394] This highly important fact is proved by the message of Governor David Stone to the Legislature of North Carolina in which he devotes much space to the Granville litigation and recommends "early provision to meet the justice of the claim of her [North Carolina's] citizens for remuneration in case of a decision against the sufficiency of the title derived from herself." The "possibility" of such a decision is apparent "when it is generally understood that a greatly and deservedly distinguished member of that [the Supreme] Court, has already formed an unfavorable opinion, will probably enforce the consideration that it is proper to make some eventual provision, by which the purchasers from the State, and those holding under that purchase, may have justice done them." (Connor in _Univ. of Pa. Law Rev._ vol. 62, 690-91.) From this message of Governor Stone it is clear that the State expected a decision in favor of the Granville heirs, and that the Legislature and State authorities were preparing to submit to that decision. [395] _Raleigh Register_, June 24, 1805, as quoted by Connor in _Univ. of Pa. Law Rev._ vol. 62, 689. The jury found against the Granville heirs. A Mr. London, the Granville agent at Wilmington, still hoped for success: "The favorable sentiments of Judge Marshall encourage me to hope that we shall finally succeed," he writes William Gaston, the Granville counsel. Nevertheless, "I think the Judge's reasons for withdrawing from the cause partakes more of political acquiescence than the dignified, official independence we had a right to expect from his character. He said enough to convince our opponents he was unfavorable to their construction of the law and, therefore, should not have permitted incorrect principles to harass our clients and create expensive delays. Mr. Marshall had certainly no interest in our cause, he ought to have governed the proceedings of a Court over which he presided, according to such opinion--it has very much the appearance of shirking to popular impressions." London ordered an appeal to be taken to the Supreme Court of the United States, remarking that "it is no doubt much in our favor what has already dropt from the Chief Justice." (London to Gaston, July 8, 1805, as quoted by Connor in _Univ. of Pa. Law Rev._ vol. 62, 690.) He was, however, disgusted with Marshall. "I feel much chagrin that we are put to so much trouble and expense in this business, and which I fear is in great degree to be attributed to the Chief Justice's delivery." (Same to same, April 19, 1806, as quoted by Connor in _ib._ 691.) For more than ten years the appeal of the Granville heirs from the judgment of the National Court for the District of North Carolina reposed on the scanty docket of the Supreme Court awaiting call for argument by counsel. Finally on February 4, 1817, on motion of counsel for the Granville heirs, the case was stricken from the docket. The reason for this action undoubtedly was that William Gaston, counsel for the Granville heirs, had been elected to Congress, was ambitious politically, was thereafter elected judge of the Supreme Court of North Carolina; none of these honors could possibly have been achieved had he pressed the Granville case. [396] 7 Cranch, 625. [397] The Jay Treaty. See vol. II, 113-15, of this work. [398] 7 Cranch, 627. [399] _Ib._ 631. [400] _Ib._ 632. [401] For mandate see 4 Munford, 2-3. [402] March 31, April 1 to April 6, 1814. (4 Munford, 3.) [403] _Ib._ 58. [404] 4 Munford, 7. [405] _Ib._ 8-9. [406] _Ib._ 11. [407] _Ib._ 12. [408] 4 Munford, 15. [409] _Ib._ 133. [410] _Ib._ 38. [411] _Ib._ 54. [412] Jefferson to Roane, Oct. 12, 1815, _Works_: Ford, XI, 488-90. [413] Roane to Jefferson, Oct. 28, 1815, _Branch Hist. Papers_, June, 1905, 131-32. [414] The employment of these expensive lawyers is final proof of Hunter's financial resources. [415] 1 Wheaton, 317, 318. [416] _Ib._ 324. [417] _Ib._ 326-27. [418] The sections of the Constitution pertaining to this dispute are as follows: "Article III, Section 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office. "Section 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects." [419] 1 Wheaton, 328. [420] _Ib._ 337-38. [421] _Ib._ 339. [422] _Ib._ 341. [423] 1 Wheaton, 343-44. [424] _Ib._ 351. [425] _Ib._ 355. [426] _Ib._ 360. [427] 1 Wheaton, 362. [428] Marshall to his brother, July 9, 1822, MS. Parts of this long letter are of interest: "Although Judge White [of the Winchester court] will, of course, conform to the decision of the court of appeals against the appellate jurisdiction of the Supreme court, & therefore deny that the opinion in the case of Fairfax & Hunter is binding, yet he must admit that the supreme court is the proper tribunal for expounding the treaties of the United States, & that its decisions on a treaty are binding on the state courts, whether they possess the appellate jurisdiction or not.... The exposition of any state law by the courts of that state, are considered in the courts of all the other states, and in those of the United States, as a correct exposition, not to be reexamined. "The only exception to this rule is when the statute of a state is supposed to violate the constitution of the United States, in which case the courts of the Union claim a controuling & supervising power. Thus any construction made by the courts of Virginia on the statute of descents or of distribution, or on any other subject, is admitted as conclusive in the federal courts, although those courts might have decided differently on the statute itself. The principle is that the courts of every government are the proper tribunals for construing the legislative acts of that government. "Upon this principle the Supreme court of the United States, independent of its appellate jurisdiction, is the proper tribunal for construing the laws & treaties of the United States; and the construction of that court ought to be received every where as the right construction. The Supreme court of the United States has settled the construction of the treaty of peace to be that lands at that time held by British subjects were not escheatable or grantable by a state.... I refer particularly to Smith v The State of Maryland 6th Cranch Jackson v Clarke 3 Wheaton & Orr v Hodgson 4 Wheaton. The last case is explicit & was decided unanimously, Judge Johnson assenting. "This being the construction of the highest court of the government which is a party to the treaty is to be considered by all the world as its true construction unless Great Britain, the other party, should controvert it. The court of appeals has not denied this principle. The dicta of Judge Roane respecting the treaty were anterior to this constitutional construction of it." [429] See vol. III, chap. X, of this work. [430] 1 Wheaton, 362-63. [431] Johnson's opinion was published in the _National Intelligencer_, April 16, 1816, as an answer to Roane's argument. (Smith in _Branch Hist. Papers_, June, 1905, 23.) [432] Story, I, 277. [433] _Annals_, 14th Cong. 1st Sess. 194, 231-33. A bill was reported March 22, 1816, increasing the salaries of all government officials. The report of the committee is valuable as showing the increased cost of living. (_Ib._) [434] Nearly three years after the decision of Martin _vs._ Hunter's Lessee, Story writes that the Justices of the Supreme Court are "_starving_ in splendid poverty." (Story to Wheaton, Dec. 9, 1818, Story, I, 313.) [435] Story to White, Feb. 26, 1816, Story, I, 278; and see Story to Williams, May 22, 1816, _ib._ 279. [436] Ambler: _Sectionalism in Virginia_, 103.