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.