John Marshall and the Fairfax Litigation: The Background of Martin v. Hunter’s Lessee

Abstract

John Marshall and the Fairfax Litigation: The Background of Martin v. Hunter’s Lessee Charles F. Hobson John Marshall, a biographer has aptly re­ marked, led “a life in law.”1 As a lawyer and jurist he achieved renown as “the great Chief Justice.” A less familiar side ofhis life in law is his role as a private litigant. In this capacity Marshall was prominently identified with the notable case of Martin v. Hunter’s Lessee, de­ cided by the Supreme Court in 1816, which cul­ minated more than two decades of litigation in the state courts of Virginia and in the Supreme Court ofthe United States. What began in 1791 as a suit to try title to a tract of land in Shenandoah County, Virginia, had been trans­ formed into a contest to determine whether the federal Supreme Court could exercise appellate jurisdiction over the Virginia Court of Appeals. Apart from the constitutional question, at is­ sue in this case and its immediate predecessor, Fairfax s Devisee v. Hunters Lessee (1813), was title to the Fairfax estate in the Northern Neck ofVirginia, the region lying between the Potomac and Rappahannock Rivers, which that family had held as proprietors since the time of Charles II. As one ofthe purchasers ofa large portion ofthe Fairfax estate, Marshall of course did not sit in these cases. This judicial disqualification, how­ ever, did not prevent him from taking an active role as an interested party. Since the 1780s, long before he became Chief Justice, Marshall had been closely associated with efforts to establish clear legal title to this immense and valuable landed property. Research undertaken by the Marshall Papers project in the Virginia state ar­ chives, in various county courthouses, and in the Supreme Court’s appellate case files in the Na­ tional Archives, has turned up new documents about the Fairfax cases. The accession of this new material makes possible a more complete as well as more accurate account of an episode that is ofengaging interest from the point ofview of both biography and legal history.2 The Northern Neck Proprietary In order to understand the complex Fairfax litigation, it is necessary to describe the distinc­ tive land system that operated in the Northern Neck during the colonial period up to the death of Thomas, sixth Lord Fairfax, in 1781.3 Until that time grants for lands in the region were is­ sued in the name ofthe proprietor from his land office located near Winchester. The rules and regulations for obtaining land were not part of the land laws of the colony but were drawn up JOURNAL 1996, VOL. 2 37 and published separately by the proprietor. As proprietor of the Northern Neck, Lord Fairfax did not derive income from the actual sale of lands but rather from collecting quitrents on tracts that he had granted in fee simple. These grants were made from the “waste and unappro­ priated” lands and produced no revenue until they were settled and patented. One who wished to acquire land in fee simple from among the vacant lands of the proprietary first made an entry for the desired tract and ob­ tained a warrant from the proprietary land office to survey the land. After the survey was returned and the office fees and “composition” (about thir­ teen shillings per hundred acres) were paid, the applicant received a patent. Once the grant had been made, the proprietor retained no further interest in the land except the right to collect annual quitrents (at the rate of one shilling for every fifty acres) and the right to resume posses­ sion of the land if the owner was in default of paying his quitrents for two years or more. In addition to granting vacant lands in fee simple, Lord Fairfax reserved large tracts of land for his own use and for the benefit of his heirs. On these reserved tracts, or “manors,” the pro­ prietor made long-term leases, most commonly for the period of three lives—that of the lessee and two persons named by him (wife and child, for example). Lessees held their land subject to payment of an annual rent of twenty shillings per one hundred acres...