The following spring[382] the Court of Appeals decided in favor of Hunter, reversing the judgment of the lower court rendered more than sixteen years before. In his opinion Roane, revealing his animosity to Marshall, declared that the compromise of 1796 covered the case. "I can never consent that the appellees,[383] after having got the benefit thereof, should refuse to submit thereto, or pay the equivalent; the consequence of which would be, that the Commonwealth would have to remunerate the appellant for the land recovered from him! Such a course cannot be justified on the principles of justice and good faith; and, I confess, I was not a little surprised that the objection should have been raised in the case before us."[384]
To this judgment the Fairfax devisee[385] obtained from the Supreme Court of the United States[386] a writ of error to the Virginia court under Section 25 of the Ellsworth Judiciary Act, upon the ground that the case involved the construction of the Treaty of Peace with Great Britain and the Jay Treaty, the Virginia court having held against the right claimed by Fairfax's devisee under those treaties.[387]
The Supreme Court now consisted of two Federalists, Washington and Marshall, and five Republicans, Johnson, Livingston, Story, and Duval; and Todd, who was absent from illness at the decision of this cause. Marshall declined to sit during the arguments, or to participate in the deliberations and conclusions of his associates. Indeed, throughout this litigation the Chief Justice may almost be said to have leaned backward. It was with good reason that Henry S. Randall, the biographer and apologist of Jefferson, went out of his way to laud Marshall's "stainless private character" and pay tribute to his "austere public and private virtue."[388]
Eight years before the Hunter-Fairfax controversy was first brought to the Supreme Court, the case of the Granville heirs against William R. Davie, Nathaniel Allen, and Josiah Collins, was tried at the June term, 1805, of the United States Court at Raleigh, North Carolina. Marshall, as Circuit Judge, sat with Potter, District Judge. The question was precisely that involved in the Fairfax title. The grant to Lord Granville[389] was the same as that to Lord Fairfax.[390] North Carolina had passed the same confiscatory acts against alien holdings as Virginia.[391] Under these statutes, Davie, Allen, and Collins obtained grants to parts of the Granville estate[392] identical with that of Hunter to a part of the Fairfax estate in Virginia.
Here was an excellent opportunity for Marshall to decide the Fairfax controversy once and for all. Nowhere was his reputation at that time higher than in North Carolina, nowhere was he more admired and trusted.[393] That his opinion would have been accepted by the State authorities and acquiesced in by the people, there can be no doubt.[394] But the Chief Justice flatly stated that he would take no part in the trial because of an "opinion ... formed when he was very deeply interested (alluding to the cause of Lord Fairfax in Virginia). He could not consistently with his duty and the delicacy he felt, give an opinion in the cause."[395]
The case of Fairfax's Devisee vs. Hunter's Lessee was argued for the former by Charles Lee of Richmond and Walter Jones of Washington, D.C. Robert Goodloe Harper of Baltimore appeared for Hunter. On both sides the argument was mainly upon the effect on the Fairfax title of the Virginia confiscatory laws; of the proceedings or failure to proceed under them; and the bearing upon the controversy of the two treaties with Great Britain. Harper, however, insisted that the court consider the statute of Virginia which set forth and confirmed the Marshall compromise.
On March 15, 1813, Story delivered the opinion of the majority of the court, consisting of himself and Justices Washington, Livingston, Todd, and Duval. Johnson, alone, dissented. Story held that, since Virginia had not taken the prescribed steps to acquire legal possession of the land before the Treaty of Peace, the State could not do so afterward. "The patent of the original plaintiff [Hunter] ... issued improvidently and passed no title whatever." To uphold Virginia's grant to Hunter "would be selling suits and controversies through the whole country."[396] It was not necessary, said Story, to consider the Treaty of Peace, since "we are well satisfied that the treaty of 1794[397] completely protects and confirms the title of Denny Fairfax."[398]
In his dissenting opinion Justice Johnson ignored the "compromise" of 1796, holding that the grant by the State to Hunter extinguished the right of Fairfax's devisee.[399] He concurred with Story and Washington, however, in the opinion that, on the face of the record, the case came within Section 25 of the Judiciary Act; that, therefore, the writ of error had properly issued, and that the title must be inquired into before considering "how far the ... treaty ... is applicable to it."[400] Accordingly the mandate of the Supreme Court was directed to the judges of the Virginia Court of Appeals, instructing them "to enter judgment for the appellant, Philip Martin [the Fairfax devisee]." Like all writs of the Supreme Court, it was, of course, issued in the name of the Chief Justice.[401]
Hot was the wrath of Roane and the other judges of Virginia's highest court when they received this order from the National tribunal at Washington. At their next sitting they considered whether to obey or to defy the mandate. They called in "the members of the bar generally," and the question "was solemnly argued" at Richmond for six consecutive days.[402] On December 16, 1815, the decision was published. The Virginia judges unanimously declined to obey the mandate of the Supreme Court of the United States. Each judge rendered a separate opinion, and all held that so much of Section 25 of the National Judiciary Act as "extends the appellate jurisdiction of the Supreme Court to this court, is not in pursuance of the constitution of the United States."[403]
But it was not only the Virginia Court of Appeals that now spoke; it was the entire Republican partisan machine, intensively organized and intelligently run, that brought its power to bear against the highest tribunal of the Nation. Beyond all possible doubt, this Republican organization, speaking through the supreme judiciary of the State, represented public sentiment, generally, throughout the Old Dominion. Unless this political significance of the opinions of the Virginia judges be held of higher value than their legal quality, the account of this historic controversy deserves no more than a brief paragraph stating the legal point decided.