In our two previous cases, we saw Chief Justice John Marshall using rather crass and often unappealing facts as the vehicles upon which to enlarge the power of the Federal judiciary. Martin v. Hunter’s Lessee (1816) 14 U.S. (1 Wheat.) 304 represents a bit of a departure from two of the three prominent elements of that pattern. The critical element, however, remained in place. And better, we get a real discussion of Constitutional theory, and a strong argument put on the table for the legitimacy of the Court’s early campaign to stake out its own legal power.
Today, we’d call this case a “title dispute” and it would have been litigated directly by the two parties who claimed to own the disputed parcel of land. But the forms of pleading of the day required that the person who claimed title attempt to evict the other title claimant’s tenant. So the form of the case was something that looks like an eviction action against a tenant farmer working what had been characterized as “waste lands,” meaning in modern parlance “wetlands” or “swamps.” I haven’t been able to figure out the farmer’s name, what he was growing (given the description of the land and the location, my guess is tobacco), or what the rent was. This is most aggravating. But while that would have been colorful, we must press on – the issue is who got to collect rent, and why it was one person who did, and not the other.
In order to figure out who owned the land and therefore had the right to collect the rent, we have to trace title back to the sovereign. Under the ancient laws of feudalism, the King owned all the land in his kingdom, and granted title to the various lands to various feudal lords in exchange for their promises to pay taxes and provide certain levels of support in times of military need. Those nobles could grant the right to use that land to others on such terms as they wished – either for money in the form of rents, or for promises of military support when called upon, or most often, both. But the bedrock principle of the land grant was that it started with the King, and the only limit on the King’s power to grant the land was that he couldn’t grant the same land twice to different people.
So, title to the specific farm in question required tracing the grants of title from one person or another back to the King in a process that is still replicated today. We call this a search for a chain of title and it looks a little bit like this: “Burt Likko was granted title to Blackacre by grant deed from Will Truman in 2002. Will Truman was granted title to Blackacre by devise from Tod Kelly in 1994. Tod Kelly was granted title to Blackacre by quitclaim from Tom Van Dyke in 1985. Tom Van Dyke was granted title to Blackacre by a Federal land grant signed by President Ford in 1975.” That’s how you know Burt Likko owns Blackacre today – you’ve traced title back to the sovereign, in this case the Federal government.
Doing so revealed that this plot of land was part of a huge swath of real estate constituting over 5.2 million acres of Northern Virginia, including the entirety of modern Lancaster, Northumberland, Richmond, and Westmoreland Counties and a significant chunk of the modern King George County as well. At the time, it was called the “Northern Neck Proprietary.” At that point, finding the Royal land grant was easy: King Charles II Stuart gave all the land between the Potomac and the Rappahannock Rivers to a company of seven noble “adventurers” and no one was quite sure how much land there was in it or what it was going to turn out to be good for. Over time, one of the “adventurers” started squeezing the others out, and eventually title to the entire Proprietary was consolidated completely in that guy’s grandson. This grandson turned out to be Baron Thomas Fairfax, the sixth Lord of Cameron, who was the scion of a good Tory family from Kent. However, Lord Fairfax was a rather peculiar fellow as English nobility went. He never married and was the only Peer of the Realm to quit his ancestral castle, and relocated permanently to his landholdings in America. (The modern Fairfax County in Virginia is also named for him, among several other places.)
So far, so good – Lord Fairfax was the unquestioned owner of the land until at least 1776. Then, history happened.
Like all good Tories, Lord Fairfax had been a Loyalist during the Revolutionary War. He got along well with his Whig (that is to say, Patriot) neighbors, and was not subject to abuse at their hands. He was less lucky with the Legislature in Richmond. In 1779, the House of Burgesses passed the Virginia Act, which confiscated lands owned by Loyalists. This included the Proprietary, which the legislature granted (upon payment of a hefty chunk of money, one would presume) to David Hunter. Hunter began to subdivide the land into smaller parcels, which he purported to rent out to the farmers who were occupying the land.
While Lord Fairfax was polite and well-liked by his Patriot neighbors and even by Mr. Hunter, he nevertheless contested the legitimacy of the Virginia Act until his dying day — a day which came less than two months after Cornwallis’ surrender at Yorktown. Lord Fairfax died unmarried and without issue on his estate in the Shenandoah Valley. His brother back in Kent inherited his title and his family’s ancestral castle; his will specified that his nephew Denny Martin was to inherit his claim to title of the Proprietary – a substantial legacy indeed if it could ever be redeemed. Mr. Martin was a British subject his entire life and only rarely had visited Virginia.
Now, the big U.S. Supreme Court cases of the early 1800’s seem to all be within the singular personality, vision, and intellect of Chief Justice John Marshall, the last of the Federalists. But Marshall played no judicial role in this decision; he had a personal financial stake in its outcome because he and his brother had a contract to buy a portion of the disputed land from Martin which included the farm at issue in this case. Obviously, Marshall had a conflict of interest because if the Virginia Act was valid, Martin didn’t have good title and couldn’t sell the land (and thus the right to collect the rent) to Marshall. So Marshall recused himself from the decision, and the result was that a judge with a different personality, Joseph Story, was given the chance to put his mark on the emerging Constitutional law of the United States.
Justice Story was thirty-seven when he wrote the opinion in Martin v. Hunter’s Lessee, and had already been on the Supreme Court for five years, appointed there by President James Madison. He remains the youngest Supreme Court appointee in our nation’s history. He was a member of the economic elite of Massachusetts, but one of the few from that class to align with the Jeffersonian Democratic-Republicans and therefore much sought after as a young man in politics. But much like John Roberts would be many generations later, he was something of a legal “rock star,” who had already produced prodigious legal scholarship upon his appointment and who had made a name for himself in admiralty law at a very young age. As a Supreme Court Justice, he authored a treatise called Commentaries on the Constitution of the United States which is still used as a historical sourcebook for those interested in the early legal history of the country, although his treatises on more nuts and bolts kinds of areas of legal practice proved more enduring in the canon of legal scholarship; his analysis of the law for “conflict of laws”† remains at the core of the field even today.
And another element from our previous two cases – a murky moral and political backdrop – seems to me to be largely absent here. The seizure of the private property of Loyalists during the Revolution is understandable but not forgiveable; the whole basis of the Revolution involved a substantial concern about protecting private property from the depredations of an uncontrollable government. When Virginia seized the lands of people who were politically unpopular, it was acting just like the King it was in revolt against. To me, the equities of the situation favor Martin by a long shot – Hunter may have been a Patriot but that didn’t give Virginia the legitimate authority to simply seize the land and give it to Hunter. At minimum, Virginia should have paid Lord Fairfax for the seizure of his land (perhaps deferring the payment until after the war had ended) and there is no question that Virginia simply didn’t have the kind of money available to do that, either during or after the war.
Hunter’s argument, and by extension that of Virginia and that of the Jeffersonians looking to put the nail in the coffin of the Federalists,‡ was that the Constitution was a bargain between the states, and as such, the states were not necessarily bound by it. Certain powers that during the Articles of Confederation had rested with the several states were delegated by the Constitution to the federal government.
Story put the smackdown on that. With a style more philosophical and, frankly, more intellectual than Marshall’s, he does more than point to the text and navigate the partisan realities of the case. He gets in to political theory, almost right out of the starting gate:
The Constitution of the United States was ordained and established not by the States in their sovereign capacities, but emphatically, as the preamble of the Constitution declares, by “the people of the United States.” There can be no doubt that it was competent to the people to invest the general government with all the powers which they might deem proper and necessary, to extend or restrain these powers according to their own good pleasure, and to give them a paramount and supreme authority. As little doubt can there be that the people had a right to prohibit to the States the exercise of any powers which were, in their judgment, incompatible with the objects of the general compact, to make the powers of the State governments, in given cases, subordinate to those of the nation, or to reserve to themselves those sovereign authorities which they might not choose to delegate to either. The Constitution was not, therefore, necessarily carved out of existing State sovereignties, nor a surrender of powers already existing in State institutions, for the powers of the States depend upon their own Constitutions, and the people of every State had the right to modify and restrain them according to their own views of the policy or principle.
For the TLDR’ers out there: The Constitution was not a contract between the States. Creating and ratifying the Constitution was a direct act of the sovereign people, not of their various States as entities whether representative of or autonomous from the people. It binds the states, not because the states are party to it like parties to a contract, but because the states are inherently subordinate to the popular political will.
At a stroke, Story lays waste to a claim that would be resurrected by the intellectual descendents of John C. Calhoun to justify nullification and secession in the 1850’s and 1860’s. This would be enough theory to provide all the fuel Story needed to get to his destination, but then again, there is the Tenth Amendment to drop into the tank as well, and Story does that, too.
Given, then, that the people (and not the states) assigned to the federal government the power to negotiate treaties (Article II, section 2), and assigned to treaties the status of supreme law of the land (Article VI), and most importantly for this case, assigned to the federal courts the power to hear cases implicating the provisions of treaties (Article III, section 2), that means that the people wanted the Supreme Court to have the final word on cases involving treaties. But not just that:
It must therefore be conceded that the Constitution not only contemplated, but meant to provide for, cases within the scope of the judicial power of the United States which might yet depend before State tribunals. It was foreseen that, in the exercise of their ordinary jurisdiction, State courts would incidentally take cognizance of cases arising under the Constitution, the laws, and treaties of the United States. Yet to all these cases the judicial power, by the very terms of the Constitution, is to extend. It cannot extend by original jurisdiction if that was already rightfully and exclusively attached in the State courts, which (as has been already shown) may occur; it must therefore extend by appellate jurisdiction, or not at all. It would seem to follow that the appellate power of the United States must, in such cases, extend to State tribunals; and if in such cases, there is no reason why it should not equally attach upon all others within the purview of the Constitution.
Any case in which there is any claim to federal jurisdiction is fair game for the U.S. Supreme Court to review and potentially overrule a state’s supreme court. And it’s all totally legitimate — the U.S. Supreme Court is acting in defense and vindication of democracy, not in opposition to the popular will. Something that the voters of Virginia, who all pretty much liked the Virginia Act, no doubt thought a novel interpretation of the idea of defending democracy. But if the Constitution is the highest expression of popular sovereignty, then this result is compelled.
To conclude, it will come as not much of a shock to anyone, I hope, that having first announced that his court could decide whether a treaty trumps a state law, that Justice Story proceeded to explain why the treaty did exactly that. It’s a treaty, a higher tier of law than a state statute. It is, by dictate of the people themselves, the supreme law of the land, subordinate only to the Constitution.
Which means that Hunter is S.O.L. The Virginia Act is void, at least to the extent that it confiscates Loyalists’ lands. But that’s good news for Martin and his buyer — John Marshall. Was it a coincidence that Story found in the manner that apparently enriched his fellow Federalist colleague on the bench? Frankly, I think so. A result such as that urged by Hunter would be chaos — fifty states would each have to ratify a treaty in order for it to be binding on the United States. No other nation would ever even attempt to negotiate a treaty with us if a state could simply legislate out of those parts of the treaty it didn’t like. We couldn’t function diplomatically. Oh yeah, and the text of Article VI is pretty clear that indeed, treaties do trump ordinary sorts of laws. So I don’t really see that Story had any choice but to rule the way he did — but we are fortunate that he paid so much attention to theory along the way, because now we can really understand why, not just how, the Constitution and the Courts play the role they do in our system of government.
† A hypothetical “conflict of laws” issue: If I live in Tennessee and you live in Texas and we meet in Minnesota and there agree to a contract, and then you say I breached that portion of the contract that was to be performed in New York, but I say you breached the portion of the contract that was to be performed in California, which court in which state should hear the case, and which state’s law should govern interpretation and enforcement of the contract?
‡ In 1816, the year Martin v. Hunter’s Lessee was decided, the best the Federalists could do in the Presidential election was to trot out poor old Rufus King as their sacrificial lamb against the we-just-won-the-war party of James Monroe. King had been a useful tool for Alexander Hamilton and George Clinton; he was a lawyer of intelligence and a man of principle and as an officeholder, had as much claim to have been a Framer of the original Constitution as did Monroe. But a charismatic leader, he was not. Senator King didn’t even carry his own state of New York; he got Massachusetts, Delaware, and Connecticut, and less than 31% of the popular vote. By 1818, the Federalist party had functionally dissolved and there was effectively one-party rule in the United States for about six years after that; Monroe’s re-election bid in 1820 was for all practical purposes uncontested.
Going through the case, there’s a remarkable paragraph in Martin v. Hunter’s Lessee: submitted without comment.
The Constitution unavoidably deals in general language. It did not suit the purposes of the people, in framing this great charter of our liberties, to provide for minute specifications of its powers or to declare the means by which those powers should be carried into execution. It was foreseen that this would be a perilous and difficult, if not an impracticable, task. The instrument was not intended to provide merely for the exigencies of a few years, but was to endure through a long lapse of ages, the events of which were locked up in the inscrutable purposes of Providence. It could not be foreseen what new changes and modifications of power might be indispensable to effectuate the general objects of the charter, and restrictions and specifications which at the present might seem salutary might in the end prove the overthrow of the system itself.
Yeah, stirring stuff, I agree; I struggled to figure out how I might include it in the logical flow of my own essay but, not being as brilliant as Story, failed. If and when I reach a conclusion to the series that would be a good quote. Thanks for pulling it out.
Seen across the years, Martin v. Hunter’s Lessee gives us a picture of how new the Constitution was in Story’s time. Subtract all the important cases which came thereafter — now take a look at American jurisprudence. It’s an awesome landscape, rather like those pictures we see of old Manhattan, the skyscrapers unbuilt, the bedrock below them peeking up here and there. We, sitting in our fancy office chairs, we know what’s coming.
We can see the triumph of Federalism in the intervening years but they couldn’t. Jefferson hated the Federalists on SCOTUS, swore to replace them if he could. The Federalist and Anti-Federalist Papers laid out the political struggles over State’s Rights which would in time lead to the Civil War.
Justice Story’s one of those shining lights in American history most people never encounter. Justices Story and John Marshall would build the defining case for federalism in Martin but with the death of Marshall, Story becomes a sad figure, usually writing in the minority on Taney’s court. Taney the racist, he of the Dred Scott decision. Well, enough ignominy has been heaped upon Taney over the years. Justice Story would write the opinion in Amistad.
If a private ship, clothed with Spanish papers, should enter the ports of the United States claiming the privileges and immunities and rights belonging to the bona fide subjects of Spain under our treaties or laws, and she should, in reality, belong to the subjects of another nation which was not entitled to any such privileges, immunities, or rights, and the proprietors were seeking, by fraud, to cover their own illegal acts under the flag of Spain, there can be no doubt that it would be the duty of our Courts to strip off the disguise and to look at the case according to its naked realities.
Would that our current SCOTUS justices were capable of such prose in our times!
The Constitution unavoidably deals in general language. It did not suit the purposes of the people, in framing this great charter of our liberties, to provide for minute specifications of its powers or to declare the means by which those powers should be carried into execution.
Which, interestingly, is very much in contrast to the dominant style of constitution writing in vogue today. See South Africa’s Constitution, for example.
I prefer our style, but then that’s what I grew up with.
Thanks, this is one that doesn’t make a typical American History course. What’s unclear from the above explanation is which treaty is in play, and how it superseded the Virginia Act. Treaty of Paris? If so I didn’t realize there was some guarantee of Loyalist and/or foreign ownership of land that could trump the Virginia Act. And surely lots more Loyalist land was successfully expropriated in the aftermath of the Revolution, wasn’t it?
I don’t (I didn’t read the decision), but I assume it was either the Treaty of Paris of 1883, or Jay’s Treaty of [1893?], or both, because I understand they both addressed the property claims of loyalists, among other things.
Thanks. Wikipedia sez (which I didn’t know before) that article 5 of the 1783 treaty was
“The Congress of the Confederation will “earnestly recommend” to state legislatures to recognize the rightful owners of all confiscated lands “provide for the restitution of all estates, rights, and properties, which have been confiscated belonging to real British subjects [Loyalists]”; (and per wiki, the issue doesn’t appear to be addressed in the Jay Treaty, just sovereign boundaries, and only “property” had to do with slaves.)
I’m interested in an expert reading on how the ‘recommendation’ became a mandate. (and like I said, I didn’t think it was uniformly enforced, otherwise Atlantic Canada wouldn’t be so filled with Loyalist ancestors)
I’m also interested in further exposition in the tension between state law and federal treaties. I can’t remember if it was discussed at this blog before, but wasn’t this supremacy battle also present in the Humbero Garcia case – and due to the outcome, on balance decided in favor of the state?
In all cases above where I refer to a specific treaty, I refer to the Treaty of Paris, sometimes called the Jay Treaty, signed by David Hartley, MP, on behalf of His Royal Brittanic Majesty George III Hanover on the one hand John Adams, Benjamin Franklin, and John Jay on behalf of the United States of America on the other hand, September 3, 1783.
The critical provision of the treaty for purposes of this case was Article 6, which specified that the national government of the United States, then still calling itself the Continental Congress, would “earnesty recommend” to state governments to reverse state confiscations of Loyalist properties already completed, give the owners of such disputed property access to the courts to vindicate their pre-Revolutionary property rights (that would seem to be the plaintiff, Mr. Martin, in this case), and to enjoin and prohibit all future confiscations. Technically, the treaty did not reverse already-completed confiscations, but rather it was understood that any British subject who cared to travel to the United States and/or sue to clear his title would be able to do so.
My apologies for any confusion.
Thanks, Mr. Likko. (though what is normally referred to as the Jay Treaty, signed & ratified during the Adams administration, is a different treaty than the one that ended the Revolutionary War. (though Jay was involved in both)
The critical provision of the treaty for purposes of this case was Article 6, which specified that the national government of the United States, then still calling itself the Continental Congress
That was not the same government as that we had after the Constitution was ratified. The Constitution was not just a reorganization of government, but the creation of a real collective government to replace a system that didn’t can’t with certainty be classified as a government at all. A nation replaced a federation. So I think one can legitimately ask whether the U.S. government or the states individually were bound by any treaty ratified under the Articles of Confederation.
The pragmatic approach is to stick to those treaties and treat them as binding, but had Story been differently inclined, he could easily have built a solid legal argument rebutting the applicability of the treaty.
But the same article 6 also said that “All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.” It seems to me that when each state ratified the constitution, it by this provision declared itself bound by treaties ratified under the articles of confederation.
After re-reading what I just quoted, I guess I may have assumed to much. The quoted part says the debts, agreements, etc., were to be construed valid “against the United States” and did not say that they were to be construed against the states. Therefore, I guess my point is not as strong as I insisted in my comment.
It’s still a point I hadn’t considered, though. To be honest, the “were treaties under the Articles of Confederation binding on the new system under the Constitution,” is one I hadn’t considered before. But if through the Constitution we explicitly incorporated pre-existing treaties, then the answer to the question is, “yes,” and my previous argument fails. And since treaties are part of that “Supreme law of the land,” (also Article 6!), they would in fact be binding on the states that ratified the Constitution.
The only line of available questioning, perhaps, is whether treaties per se are brought in through the word “engagements.” It seems they could certainly have been more explicit, but probably that’s what the word means. I’m sure someone somewhere has explicated just how/why that word includes treaties. I’ll have to look that up sometime, unless our gracious host already knows and is kind enough to enlighten me.
Sorry, I’m not fluent enough at that level of detail without doing some independent research, of which I am sure you are equally capable.
James,
You’re right. “Engagements” might simply mean “promises to pay.” Or maybe it’s not so simple but they still essentially mean that.
I imagine–although I’m to lazy to do the research–that re-reading the Federalist Papers and perhaps reading anti-Federalist critiques of the constitution might at least draw out how the founding generation viewed this issue.
without doing some independent research, of which I am sure you are equally capable.
And, unfortunately, equally reluctant to get involved with. 😉
Burt:
Do you plan on doing Bank of Augusta v. Earle? (Just curious.)
Next up I was thinking of McCullough v. Maryland, a case from 1819. Pretty much can’t skip that one. I’m trying to move forward chronologically, so I won’t need to confront whether I’ll do Bank of Augusta until I get another twenty years ahead; my initial thought would be that this is a bit more obscure, although academic prejudice against Roger Taney may be more than a little bit to blame for that.
On reflection, I muse that Bank of Augusta would today be of some interest to the #OWS folks — folks who I would anticipate would spit louder and with more liquid at Taney than Jaybird does at Oliver Wendell Holmes. Maybe I should keep that in mind as I approach it. Thanks for the suggestion!
In my research, I occasionally see references, in my secondary sources, to Bank of Augusta, and these references usually seem to misunderstand my reading of the case, so that’s why I was hoping to see your take on it.
Another reason is that I’m too lazy to do the hard work myself and follow up on the legal commentary on the case. (It’s not particularly relevant to my dissertation, but it interests me as a side issue.)
I wasn’t familiar with this one at all… and, like Blaise points out, you can see what’s coming.
I love these posts. Excellent.
They really are fine, aren’t they?
Are you ready for a bad analogy? In Solzhenitsyn’s Gulag Archipelago (or was it the First Circle?), he talks about going to the nicest gulag in Russia. It was the one for scientists and intellectuals useful to the state.
He talked about how, for entertainment, they’d have rotating lectures every Saturday Night. The thing to look forward to during the week was that you knew that, come Saturday, you’d get to listen to a scientist talk about the migration patterns of bees, say.
Through all of the “oh my gosh, that’s awful”, that’s one of the things that struck me as “they figured out how to do something lovely in the middle of something horrible” and that is usually followed up by some variant of “I’m wasting my life!” and then some ice cream or something.
In any case, little posts like this make me feel less bad… like I’m spending my Saturday night listening to a lecture on the migration patterns of bees.
Solzhenitsyn said something to the effect that once you’ve deprived someone of everything, you have no more power over him. He’s free again. In the camps, the dissidents were free to shout “Fuck Stalin!” at the top of their lungs. What could the guards do? They weren’t terribly happy to be there, any more than the prisoners.
Burt,
One of the things I like is your attention to the political aspects of the case. But I want to quibble a bit with the following:
The Constitution was not a contract between the States. Creating and ratifying the Constitution was a direct act of the sovereign people, not of their various States as entities whether representative of or autonomous from the people. It binds the states, not because the states are party to it like parties to a contract, but because the states are inherently subordinate to the popular political will.
I don’t fully agree with that, and believe that the Constitution very much rests on state-level agreement, not on the agreement of the public of the U.S. as a whole. First, it was the state governments, not their people, who appointed representatives to the federal convention. Second, the state governments had to call for ratifying conventions, signaling their willingness to acquiesce to the Constitution. Third, the conventions were acting as representatives of their own states, not as representatives of the U.S. as a whole. There was no national referendum, and each state was free to go its own way (in fact neither North Carolina nor Rhode Island ratified until after the new government had been elected and was in session.
The “We, the People,” language is a bit boilerplate (the whole preamble, as you know, not really being enforceable). It may not be too much of a stretch to add popular ratification to that language to make a claim that the Constitutional also rests upon the popular will beyond the states, but I don’t think that’s as strong as the argument that ultimately the Constitution rests on state-level agreement.
Your quibble is with Justice Story, then, not with me. As we shall see, Story’s was hardly the last word on the subject.
Now, I happen to think Story was right, at least about this. Not for nothing was ratification done in conventions, rather than through their legislatures. If the state, and not the people, was the entity that was to adopt the Constitution, then the legislature would have been perfectly competent to have done that. A convention bypasses the governmental organs of the state. So as I see it, the “We, the People” preamble was not mere surplussage.
A convention bypasses the governmental organs of the state.
Not entirely–not when the state government has to approve the holding of the convention. And it was still a ratification by “peoples of the various states,” rather than an aggregation of votes of people just casting votes at different polling places. I think the truth is that there’s something more than just state approval, but not something that bypasses or is separate from state approval.
This is a fascinating bookend to the story my wife’s uncle told me when I was in London. The Duke of Westminster owns the land the American Embassy sits on in London and has refused to sell it until the American government agrees to return his family’s holdings in Virginia which he feels the Revolutionary government seized illegally.
Really? I would have thought the U.S. government held clear title to the land as a matter of necessity — isn’t an embassy the sovereign territory of the nation maintaining it?
Apparently, a country just having a ground lease is kind of common, and in turn, the more entrepreneurial delegations lease out their own space
Not sure, but maybe it’s the existence of the embassy which makes the land sovereign and not clear title.
There are surely a lot of specifics like that to think about. That is a terrific point to bring up. I supply the thoughts previously as typical inspiration but clearly you will find questions such as one a person bring up where most important matter will be employed in honest beneficial faith. My spouse and i don?t know if guidelines have blossomed around things like that, nevertheless I am sure that your chosen job is actually clearly referred to as a fair sport. Both little ones feel the impression of simply a moment’s enjoyment, for the rest of their particular lives.