John Marshall’s Supreme Court Practice: A Letter Comes to Light

Abstract

John Marshall’s Supreme Court Practice: A Letter Comes to Light James C. Brandow1 The discovery of a previously unknown let­ ter written by John Marshall is a noteworthy event. When that letter sheds light on his legal practice before the Supreme Court in the 1790s, it becomes an even more welcome addition to the historical record. Only a few of Marshall’s letters and other contemporary sources provide information about his activities as a lawyer. As the editors of his papers have readily admitted, “[t]he want of documentation for Marshall the lawyer” has always been a limiting factor in our understanding of the great jurist.2 That limita­ tion has now been breached somewhat. While engaged in research for the fifth volume of The Documentary History of the Supreme Court of the United States, 1789-1800, the editors of that series found a copy of a one-page letter by Marshall deposited in the Virginia Library in Richmond. The letter helps to fill in a gap in our sketchy knowledge of Marshall’s legal prac­ tice before the Supreme Court. Marshall’s peers recognized him as an out­ standing appellate litigator in the superior courts of Virginia by the early 1790s, but prior to his appointment as Chief Justice in 1801 he had appeared as counsel in only one case before the U.S. Supreme Court. That suit was Ware v. Hylton, decided in February 1796, a British debt case that tested the supremacy ofa federal treaty over state law. Marshall’s client, the Virginia debtor Daniel Hylton, lost to the British creditor and the case had wide repercussions throughout the United States.3 One year later, in February 1797, Marshall was back in Philadelphia to argue Hunter v. Fairfax, a land dispute case in which he had a personal interest.4 According to standard accounts, Marshall never had an oppor­ tunity to address the Court, and after the suit was dismissed, he returned home. Soon after, in June 1797, President Adams appointed Marshall to serve as an envoy extraordinary to France. Never again would he be able to devote all ofhis energies to his legal practice.5 That accepted chronology or sequence of events must now be amended by adding another Supreme Court case in which Marshall partici­ pated. While in Philadelphia in February 1797, Marshall was retained by the state ofVirginia to act as counsel in Hollingsworth v. Virginia, or as it was originally docketed, Grayson v. Virginia, a suit filed by the Indiana Company in the Supreme Court in 1792.6 The Papers of John Marshall, an outstanding documentary project and the recognized authority on his career, printed a letter dated February 1, 1797, from James Wood, the governor ofVirginia, to United States Attorney General Charles Lee, a native of Virginia, in which Lee was directed to confer with Marshall about the case.7 In the absence of additional evidence, the editors of the Marshall Papers were unable to comment further on Marshall’s employment.8 However, with the Documentary History Project’s discovery of Marshall’s response to the governor, as well as a response from Attorney General Lee, we now have a more complete record of the part Mar­ shall played as counsellor in Hollingsworth v. Virginia. 74 1995 JOURNAL Virginia’s troubles with the Indiana Company dated back to 1768, when that organization of wealthy Pennsylvania and New Jersey merchants and land speculators secured a deed from the chiefs of the Six Nations to almost two hundred thousand acres of land in what is now West Vir­ ginia. The company petitioned the Virginia leg­ islature for recognition of its deed in 1776, but that petition as well as others in later years was denied on the grounds that Virginia and not the Indians owned the lands. Continually frustrated in its quest to have the deed accepted, the Indi­ ana Company finally instituted a suit in the Supreme Court against Virginia in 1792.9 The governor of Virginia refused to accept service ofthe subpoena but informed the General Assembly ofthe suit. The legislature responded by promptly passing resolutions which declared that the Supreme Court of the United States did not have jurisdiction in...