John Marshall had long been the attorney in Virginia for Robert Morris, who frequently visited that State, sometimes taking his family with him. In all probability, it was upon some such journey that James M. Marshall, the brother of John Marshall, met and became engaged to Hester Morris, daughter of the great speculator, whom he married on April 19, 1795.[520] James M. Marshall—nine years younger than his brother—possessed ability almost equal to John Marshall and wider and more varied accomplishments.[521]
It is likely that the Pennsylvania financier, before the marriage, suggested to the Marshall brothers the purchase of what remained of the Fairfax estate in the Northern Neck, embracing over one hundred and sixty thousand acres of the best land in Virginia.[522] At any rate, sometime during 1793 or 1794 John Marshall, his brother, James M. Marshall, his brother-in-law, Rawleigh Colston, and General Henry Lee contracted for the purchase of this valuable holding.[523] In January of that year James M. Marshall sailed for England to close the bargain.[524] The money to buy the Fairfax lands was to be advanced by Robert Morris, who, partly for this purpose, sent James M. Marshall to Europe to negotiate[525] loans, immediately after his marriage to Hester Morris.
At Amsterdam "some Capitalists proposed to supply on very hard terms a Sum more than Sufficient to pay Mr. Fairfax," writes Morris, and James M. Marshall "has my authority to apply the first Monies he receives on my accot to that Payment."[526] By the end of 1796 Morris's over-speculations had gravely impaired his fortune. The old financier writes pathetically to James M. Marshall: "I am struggling hard, very hard, indeed to regain my Position." He tells his son-in-law that if a loan cannot be obtained on his other real estate he "expects these Washington Lotts will be the most certain of any Property to raise Money on"; and that "[I] will have a number of them Placed under your Controul."[527]
The loan failed, for the time being, but, writes Morris to John Marshall, "Mr. Hottenguer[528] who first put the thing in motion says it will come on again" and succeed; "if so, your brother will, of course, be ready for Mr. Fairfax." Morris is trying, he says, to raise money from other sources lest that should fail. "I am here distressed exceedingly in money matters," continues the harried and aging speculator "as indeed every body here are but I will immediately make such exertions as are in my power to place funds with your brother and I cannot but hope that his and my exertions will produce the needful in proper time to prevent mischief."[529]
A month later Morris again writes John Marshall that he is "extremely anxious & fearing that it [the Amsterdam loan] may fall through I am trying to obtain a loan here for the purposes of your Brother in London. This," says the now desperate financier, "is extremely difficult, for those who have money or credit in Europe seem to dread every thing that is American." He assures John Marshall that he will do his utmost. "My anxiety ... [to make good the Fairfax purchase] is beyond what I can express." Alexander Baring "could supply the money ... but he parries me. He intends soon for the Southward I will introduce him to you."[530]
The title to the Fairfax estate had been the subject of controversy for many years. Conflicting grants, overlapping boundaries, sequestration laws, the two treaties with Great Britain, were some of the elements that produced confusion and uncertainty in the public mind and especially in the minds of those holding lands within the grant. The only real and threatening clouds upon the title to the lands purchased by the Marshall syndicate, however, were the confiscatory laws passed during the Revolution[531] which the Treaty of Peace and the Jay Treaty nullified.[532] There were also questions growing out of grants made by the colonial authorities between 1730 and 1736, but these were not weighty.
The case of Hunter vs. Fairfax, Devisee, involving these questions, was pending in the Supreme Court of the United States. John Marshall went to Philadelphia and tried to get the cause advanced and decided. He was sadly disappointed at his failure and so wrote his brother. "Your Brother has been here," writes Morris to his son-in-law, "as you will see by a letter from him forwarded by this conveyance. He could not get your case brought forward in the Supreme Court of the U. S. at which he was much dissatisfied & I am much concerned thereat, fearing that real disadvantage will result to your concern thereby."[533]
The case came on for hearing in regular course during the fall term. Hunter, on the death of his attorney, Alexander Campbell, prayed the Court, by letter, for a continuance, which was granted over the protest of the Fairfax attorneys of record, Lee and Ingersoll of Philadelphia, who argued that "from the nature of the cause, delay would be worse for the defendant in error [the Fairfax heir] than a decision adverse to his claim." The Attorney-General stated that the issue before the Court was "whether ... the defendant in error being an alien can take and hold the lands by devise. And it will be contended that his title is completely protected by the treaty of peace." Mr. Justice Chase remarked: "I recollect that ... a decision in favor of such a devisee's title was given by a court in Maryland. It is a matter, however, of great moment and ought to be deliberately and finally settled."[534] The Marshalls, of course, stood in the shoes of the Fairfax devisee; had the Supreme Court decided against the Fairfax title, their contract of purchase would have been nullified and, while they would not have secured the estate, they would have been relieved of the Fairfax indebtedness. It was, then, a very grave matter to the Marshalls, in common with all others deriving their titles from Fairfax, that the question be settled quickly and permanently.
A year or two before this purchase by the Marshalls of what remained of the Fairfax estate, more than two hundred settlers, occupying other parts of it, petitioned the Legislature of Virginia to quiet their titles.[535] Acting on these petitions and influenced, perhaps, by the controversy over the sequestration laws which the Marshall purchase renewed, the Legislature in 1796 passed a resolution proposing to compromise the dispute by the State's relinquishing "all claim to any lands specifically appropriated by ... Lord Fairfax to his own use either by deed or actual survey ... if the devises of Lord Fairfax, or those claiming under them, will relinquish all claims to lands ... which were waste and unappropriated at the time of the death of Lord Fairfax."[536]
Acting for the purchasing syndicate, John Marshall, in a letter to the Speaker of the House, accepted this legislative offer of settlement upon the condition that "an act passes during this session confirming ... the title of those claiming under Mr. Fairfax the lands specifically appropriated and reserved by the late Thomas Lord Fairfax or his ancestors for his or their use."[537]