The Life of John Marshall, Volume 1: Frontiersman, soldier, lawmaker, 1755-1788

by Albert J. Beveridge

In January of 1787 occurred the devastating Richmond fire which destroyed much of the little city;[600] and on February 7, Marshall enters among his expenses, "To my subscription to the sufferers by fire 21" (pounds).

Marshall's name first appears in the reports of the cases decided by the Virginia Court of Appeals in 1786. In May of that year the court handed down its opinion in Hite et al. vs. Fairfax et al.[601] It involved not only the lands directly in controversy, but also the validity of the entire Fairfax title and indirectly that of a great deal of other land in Virginia. Baker, who appears to have been the principal attorney for the Fairfax claimants, declared that one of the contentions of the appellants "would destroy every title in the Commonwealth." The case was argued for the State by Edmund Randolph, Attorney-General, and by John Taylor (probably of Caroline). Marshall, supporting Baker, acted as attorney for "such of the tenants as were citizens of Virginia." The argument consumed three days, May 3 to 5 inclusive.[602]

Marshall made an elaborate argument, and since it is the first of his recorded utterances, it is important as showing his quality of mind and legal methods at that early period of his career. Marshall was a little more than thirty years old and had been practicing law in Richmond for about three years.

The most striking features of his argument are his vision and foresight. It is plain that he was acutely conscious, too, that it was more important to the settlers who derived their holdings from Lord Fairfax to have the long-disputed title settled than it was to win as to the particular lands directly in controversy. Indeed, upon a close study of the complicated records in the case, it would seem that Joist Hite's claim could not, by any possibility, have been defeated. For, although the lands claimed by him, and others after him, clearly were within the proprietary of Lord Fairfax, yet they had been granted to Hite by the King in Council, and confirmed by the Crown; Lord Fairfax had agreed with the Crown to confirm them on his part; he or his agents had promised Hite that, if the latter would remain on the land with his settlers, Fairfax would execute the proper conveyances to him, and Fairfax also made other guarantees to Hite.

But it was just as clear that, outside of the lands immediately in controversy, Lord Fairfax's title, from a strictly legal point of view, was beyond dispute except as to the effect of the sequestration laws.[603] It was assailed, however, through suggestion at least, both by Attorney-General Randolph and by Mr. Taylor. There was, at this time, a strong popular movement on foot in Virginia to devise some means for destroying the whole Fairfax title to the Northern Neck. Indeed, the reckless royal bounty from which this enormous estate sprang had been resented bitterly by the Virginia settlers from the very beginning;[604] the people never admitted the justice and morality of the Fairfax grant. Also, at this particular period, there was an epidemic of debt repudiation, evasion of contracts and other obligations, and assailing of titles.[605]

So, while Baker, the senior Fairfax lawyer, referred but briefly to the validity of the Fairfax title and devoted practically the whole of his argument to the lands involved in the case then before the court, Marshall, on the other hand, made the central question of the validity of the whole Fairfax title the dominant note of his argument. Thus he showed, in his first reported legal address, his most striking characteristic of going directly to the heart of any subject.

Briefly reported as is his argument in Hite vs. Fairfax, the qualities of far-sightedness and simple reasoning, are almost as plain as in the work of his riper years:—

"From a bare perusal of the papers in the cause," said Marshall, "I should never have apprehended that it would be necessary to defend the title of Lord Fairfax to the Northern Neck. The long and quiet possession of himself and his predecessors; the acquiescence of the country; the several grants of the crown, together with the various acts of assembly recognizing, and in the most explicit terms admitting his right, seemed to have fixed it on a foundation, not only not to be shaken, but even not to be attempted to be shaken.

"I had conceived that it was not more certain, that there was such a tract of country as the Northern Neck, than that Lord Fairfax was the proprietor of it. And if his title be really unimpeachable, to what purpose are his predecessors criminated, and the patents they obtained attacked? What object is to be effected by it? Not, surely, the destruction of the grant; for gentlemen cannot suppose, that a grant made by the crown to the ancestor for services rendered, or even for affection, can be invalidated in the hands of the heir because those services and affection are forgotten; or because the thing granted has, from causes which must have been foreseen, become more valuable than when it was given. And if it could not be invalidated in the hands of the heir, much less can it be in the hands of a purchaser.

"Lord Fairfax either was, or was not, entitled to the territory; if he was, then it matters not whether the gentlemen themselves, or any others, would or would not have made the grant, or may now think proper to denounce it as a wise, or impolitic, measure; for still the title must prevail; if he was not entitled, then why was the present bill filed; or what can the court decree upon it? For if he had no title, he could convey none, and the court would never have directed him to make the attempt.