UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY
 
 HISTORY OF 
 
 THE SUPREME COURT OF 
 THE UNITED STATES 
 
 BY 
 GUSTAVUS MYERS 
 
 AUTHOR OF " HISTORY OF THE GREAT AMERICAN FORTUNES, '' " HISTORY'OF 
 
 TAMMANY HALL," " HISTORY OF PUBLIC FRANCHISES IN 
 
 NEW YORK CITY," ETC. 
 
 CHICAGO 
 
 CHARLES H. KERR & COMPANY 
 1918
 
 Copyright 1911-1912 
 BY GUSTAVUS MYERS 
 
 Entered at Stationers' Hall, London, Eng., 1912 
 By Gustavus Myers 
 
 All Rights Reserved by Gustavus Myers 
 
 Including that of Translation into Foreign 
 
 Languages, including the Scandinavian 
 
 3.-Hp-.rS
 
 PREFACE 
 
 To a work such as this, avoiding as it does both theories 
 and conclusions, and confining itself strictly to ascertainable 
 facts, little or no prefatory note is required. Neither is any 
 explanation necessary as to why the author chose to write 
 the historical narrative of the Supreme Court of the United 
 States. All departments of human activity are subject, or 
 should be, to scrutiny and investigation, and the series of facts 
 discovered become a definite part of knowledge to be explored, 
 assembled and disseminated. 
 
 Quite true, while research has hitherto penetrated into all 
 other branches of historical development, the courts have been 
 singularly exempt. That they have been immune from search- 
 ing inquiry; that around them has been created a myth, a fic- 
 tion of supermundane superiority, is no reason why the case 
 should continue so. On the contrary, the more their history 
 and course have been shrouded in tradition and mystery, the 
 more pressing is the necessity for learning and describing 
 the actual facts. Only those who for sentimental or ulterior 
 purposes would seek to disseminate fiction rather than facts 
 can object to a serious inquiry into any institution and th^ 
 collocation of verified facts. Such an objection at once dis- 
 credits and disposes of itself in its obvious attack upon an 
 attempt to bring out the truth, and in its aim to suppress the 
 facts from becoming public information. 
 
 The long roll of facts herein set forth have not, it is need- 
 less to say, been created by the author. Good, bad or in- 
 different, they are all matters of record ; there they lie in the 
 archives awaiting the patient and sincere research of the 
 
 5
 
 6 PREFACE 
 
 historical delver; and if nearly all of them are now presented 
 for the first time that is not the fault of the facts but con- 
 stitutes a standing exposure of the superficial, if not design- 
 edly partial character, of much of the extant work passed 
 off as historical writing. Spurious as most of these writings 
 are, destitute of the merit of even a disposition to plumb 
 the truth, characterized by a desire to glorify the basest pas- 
 sions and gloze over the true causes and development of 
 events, they have unfortunately had their influence in propa- 
 gating confusion, falsehood, and, worst of all, popular sub- 
 mission to the ideas and conceptions demanded by the doni' 
 inant class. But the day has even now dawned when such 
 works are going to the rubbish heaps or perhaps being re- 
 garded as singular curiosities of " intellectual " vassalage. 
 
 For nearly a century and a quarter the Supreme Court of 
 the United States has towered aloft in omnipotent sway over 
 all other institutions. Absolute and final, its decrees have 
 gone deep into the history of the nation, and have had their 
 mighty effect upon those wars of classes and subdivisions 
 of classes which it was once (and to some extent still is) the 
 fashion to ignore in theory while asserting the fact in deed. 
 During its whole existence the Supreme Court of the United 
 States has been overwhelmed with laudation, although not at 
 all times free from criticism. 
 
 But generalities do not concern us, nor do mere gilded 
 words or fine assumptions have weight. What we do care 
 about is to know the facts, so far as the annals can give them, 
 of this all-powerful institution. We seek to learn its ante- 
 cedents, its establishment, its development, its successive per- 
 sonnel, and its course, and what relation the whole bore to 
 the great questions and interests of each associated era. This 
 is the information supplied in the following pages; and if 
 the facts presented are striking, original and voluminous, it 
 should be remembered that they are only such as are in the 
 records ; without doubt many more underlying facts have
 
 PREFACE 7 
 
 never been introduced into the accessible archives, and these 
 are lost to the authentic search of the historian. 
 
 As will be seen, this work is not one of a routine bio- 
 graphical or descriptive character, dependent upon injections 
 of fanciful matter or dramatic coloring. It seeks to go to the 
 basic depths, and in doing so it becomes/far more than a nar- 
 rative of a single institution. It carries, with a comprehensive 
 history of the development of capitalist resources, power 
 and tactics, and of the great and continuing conflict of classes. 
 It reveals the true sources of the primitive accumulation of 
 wealth which necessarily beginning with the appropriation of 
 land and the dispossession of the workers, have extended to 
 the elaborate and conjointed forms of capitalist power sub- 
 sisting to-day. 
 
 Palpably, a dominant class must have some supreme in- 
 stitution through which it can express its consecutive demands 
 and enforce its will, whether that institution be a king, a Par- 
 liament, a Congress, a Court or an army. In the United 
 States, the one all-potent institution automatically responding 
 to these demands and enforcing them has been the Supreme 
 Court of the United States. Vested with absolute and un- 
 appealable power, it has been able, with a marvelously adapta- 
 ble flexibility, to transmute that will not merely into law but 
 into action. Hence, the narrative of that court inevitably be- 
 comes a history of the origin and progress of capitalism and 
 correspondingly of the forces in society antagonistic to the 
 capitalist order. 
 
 Because, however, the Supreme Court as an institution has 
 throughout its whole existence incarnated into final law the 
 demands of the dominant and interconnected sections of the 
 ruling class it should not be supposed that its members have 
 necessarily been susceptible to the vulgar forms of venal cor- 
 ruption. That the rise and ever-expanding sway of the capi- 
 talist class have been accompanied by ceaseless fraud and 
 bribery is overwhelmingly attested by the cumulative evi-
 
 8 PREFACE 
 
 dence. But no one can read the proofs herein presented with- 
 out being impressed by the fact that the Supreme Court as 
 a whole has been peculiarly free from venal corruption in an 
 age when such corruption was common if not continuous. 
 During the extended career of that Court, personal venality 
 has not been the determining factor. 
 
 Instance after instance occurs where Justices, at the end of 
 long service on that Bench, have died virtually penniless, or 
 possessed of the most scantily moderate degree of means. 
 Yet many of those very Justices were the same who by their 
 decisions gave to capitalists vast resources, or powers trans- 
 latable into immense wealth. The influences so consistently 
 operating upon the minds and acts of the incumbents were not 
 venal, but class, influences, and were all the more effective 
 for the very reason that the Justices in question were not' open 
 to pecuniarily dishonest practices. From training, association, 
 interest and prejudice, all absorbed in the radius of permeat- 
 ing class environment, a fixed state of mind results. Upon 
 conditions that the ruling class finds profitable to its aims, 
 and advantageous to its power, are built codes of morality as 
 well as of law, which codes are but reflections and agencies of 
 those all-potent class interests. 
 
 In the case of men whose minds are already permanently 
 molded to such pufposes, and whose character and station for- 
 bid the use of illicit means, immeasurable subservience can 
 be obtained which crude and vulgar money bribery would 
 hopelessly fail to accomplish. Under these circumstances a 
 great succession of privileges and powers are given gratui- 
 tously, and class corruption appears as honest conviction be- 
 cause of the absence of personal temptations and benefits on 
 the part of the Justices. In this deceptive and insidious guise 
 supreme judicial acts go forth to claim the respect and sub- 
 mission of the working class against whom the decisions are 
 applied. 
 
 Furthermore, in taking a large survey of historical events,
 
 PREFACE 9 
 
 the fact that nearly all of the men ascending to the Supreme 
 Court of the United States had, as attorneys, served power- 
 ful individuals or corporations need occasion no undue com- 
 ment. Understanding the development " of modern society, 
 and its evolutionary transitions, we can clearly perceive that 
 certain men skilled in law had to do the indispensable legal 
 work of capitalist interests, and whether this or that set of 
 lawyers did it is immaterial historically. Able servitors of 
 the ruling economic forces, it naturally followed that those 
 forces, controlling Government, should select certain of those 
 lawyers to go on the Supreme Court Bench; and how com- 
 pletely, consistently and accurately the personnel of the Su- 
 preme Court has represented the dominant class section or 
 sections of each era is abundantly shown by the mass of facts 
 in these chapters. 
 
 In conclusion I desire to express to my friends Frederick 
 Sumner Boyd and Anne Sumner Boyd my deep appreciation 
 of their kind services in connection with the final revision of 
 the manuscript for publication, and to all those who have in 
 substantial ways encouraged the preparation of this work, and 
 placed means at my disposal, I wish to acknowledge my sin- 
 cere appreciation. 
 
 New York, January, 1912.
 
 CONTENTS 
 
 CHAPTER PAGE 
 
 PREFACE 5 
 
 1. CONDITIONS PRECEDING ITS ESTABLISHMENT: THE AC- 
 QUISITION OF THE LARGE LANDED ESTATES 13 
 
 II. THE LABORING, SERVANT AND SLAVE CLASSES, AND THE 
 
 GROWTH OF THE TRADING CLASS 48 
 
 III. THE REAL FORCES OF THE REVOLUTION AND THE DRAFTERS 
 
 OF THE CONSTITUTION 73 
 
 IV. THE SUPREME COURT UNDER CHIEF JUSTICE JOHN JAY . 135 
 V. FROM JAY'S RESIGNATION TO MARSHALL'S ACCESSION . . 197 
 
 VI. THE AUTHENTIC JOHN MARSHALL 228 
 
 VII. MARSHALL AND His CHIEF COADJUTOR, STORY .... 258 
 VIII. THE FURTHER COURSE OF THE SUPREME /COURT UNDER 
 
 MARSHALL 283 
 
 IX. THE SUPREME COURT UNDER CHIEF JUSTICE TANEY . . . 355 
 X. THE SUPREME COURT UNDER CHIEF JUSTICE TANEY (con- 
 tinued) 391 
 
 XI. THE SUPREME COURT UNDER CHIEF JUSTICE TANEY (con- 
 tinued) 440 
 
 XII. THE SUPREME COURT UNDER CHIEF JUSTICE CHASE . . 483 
 
 XIII. THE SUPREME COURT UNDER CHIEF JUSTICE WAITE . . 528 
 
 XIV. THE SUPREME COURT UNDER CHIEF JUSTICE FULLER . . 578 
 XV. THE SUPREME COURT UNDER CHIEF JUSTICE FULLER (con- 
 tinued) 618 
 
 XVI. THE SUPREME COURT UNDER CHIEF JUSTICE FULLER (con- 
 tinued) 661 
 
 XVII. THE SUPREME COURT UNDER CHIEF JUSTICE WHITE . . 695 
 KVIII. THE SUPREME COURT UNDER CHIEF JUSTICE WHITE (con- 
 tinued) 739 
 
 INDEX 787
 
 HISTORY OF THE 
 fc SUPREME COURT OF THE 
 UNITED STATES 
 
 CHAPTER I 
 
 CONDITIONS PRECEDING ITS ESTABLISHMENT: THE 
 ACQUISITION OF THE LARGE LANDED ESTATES 
 
 Although founded as an original institution, apparently new 
 in itself and dissociated from any prior experiment, the Su- 
 preme Court of the United States was, nevertheless, the lega- 
 tee, from its inception, of an antique body of laws and a mass 
 of customs, traditions, views and conditions growing out of 
 long-standing conflicting interests. 
 
 Isolated from what has preceded them as some institutions 
 may appear, because lacking a direct titular ancestor, they are 
 no more so than any of the other manifold evidences of 
 human activity. Their form may sometimes seem novel and 
 unrelated, but their life principle and all of the display of 
 instinct and conduct springing from it, have the most intimate 
 connection with previous events, often reaching back to re- 
 mote time. Neither are established institutions accidental, 
 capricious or aimless. Their lineage is clearly traceable ; and, 
 imperfect as they may sometimes seem, they represent the 
 definite expression at a particular time of a definite purpose 
 to conserve certain ideas or conditions. This much is axio- 
 matic. But at this point conventional historical inquiry stops 
 without scrutinizing the growth and contests of antagonistic 
 forces, and what special dominant section of those warring 
 
 13
 
 14 HISTORY OF THE SUPREME COURT 
 
 forces institutions thus established were designed to represent. 
 To ascertain these facts is a vital preliminary, essential to a 
 clear knowledge of cause and effect springing from concrete 
 economic conditions. 
 
 When the Supreme Court of the United States was or- 
 ganized, there was, to be sure, a distinct environment, as there 
 is in all times and ages. The environment then prevailing, 
 however, was so fundamentally different from that related 
 (or rather misrepresented) in the customary histories, that 
 a narrative of it and the conditions leading up to it, is in- 
 dispensable to a correct understanding of the history and 
 career of the Supreme Court. Once this link is supplied, 
 the nature of the personnel, and the current of the policy, of 
 that Court become clear, and present a continuous and com- 
 prehensible account, leaving nothing to the imagination, and 
 no enigmas over which to puzzle. 
 
 Steadily, through more than a century and a half, the 
 process of forming on the soil of America a landed and 
 trading aristocracy, on the one hand, and on the other, a 
 menial and dependent laboring and slave class, went on unin- 
 terruptedly. Long before the outbreak of the Revolution, so- 
 ciety was divided into various classes and these into grades, 
 sharply defined from one another in law, as well as by ex- 
 tent of wealth or by tokens of rank or degradation. With the 
 very settlement of the country, the European system of land 
 and trade frauds had been transplanted that system of fand 
 seizure by which the feudal barons had aggrandized them- 
 selves, and that system of fraud in trade by which Europeaflr- 
 merchants had grown rich. Throughout New England, New 
 York, Pennsylvania, Maryland, Virginia, the Carolinas and 
 Georgia enormous estates were gradually acquired. Some 
 were obtained by fraud upon the Indians, or by bribing 
 royal officials, or both ; still others by the officials clandestinely 
 using their authority to secure vast estates for themselves.
 
 CONDITIONS PRECEDING ITS ESTABLISHMENT 
 
 Fraud in Ancient Massachusetts. 
 
 Orthodox Puritan piety went hand in hand with the con- 
 mission of frauds, if the laws of the day shadow the condi- 
 tions prevailing. In Massachusetts, then comprising also 
 what is now the State of Maine and a portion of the present 
 State of New York, the corruption of public officials became 
 so general that an act was passed in the year 1645 imposing 
 a penalty of 40 or whipping for corrupting any public official 
 to deface the public records. 1 For forging land deeds, the 
 offending person was to pay the aggrieved party double 
 damages ; if he could not or did not he was to be publicly 
 whipped and a " Romaine F " was to be burned in his face. 2 
 The practices of the Puritan judiciary may be judged from 
 Section ix, Act of 1635, which prohibited judges interested 
 in civic causes, or related to the parties at action, from giving 
 judgment. 3 
 
 In Rhode Island the principal officials and elders were 
 either seizing land, or by their official acts were awarding 
 allotments to one another. 4 
 
 The Connecticut Assembly was constantly passing laws di- 
 rected at preventing land frauds ; a supererogative attempt at 
 virtuous conduct, inasmuch as many of the officials themselves 
 were thus acquiring estates. 
 
 Conditions in Old Connecticut. 
 
 In May, 1667, the General Court of Connecticut, " being 
 sensible of the great trouble and contention that doth and may 
 arise in this colony by reason of great defects that are found 
 in records," etc., found it necessary to pass an act aimed at 
 
 1 " Plymouth Colony Laws " : 82. 
 *Ibid. 
 
 3 " Ancient Charters and Laws of Massachusetts Bay, etc." Pub- 
 lished By Order of the General Court, 1814. 
 
 4 " Rhode Island Colonial Records, 1636-1663." Vols. I, II, etc., de- 
 scribe many instances.
 
 l6 HISTORY OF THE SUPREME COURT 
 
 forestalling frauds. 8 A statute passed by the Connecticut 
 General Court in May, 1717, sought to prevent frauds in 
 seizing lands from the Indians ; it ordained that no Indian title 
 was good unless it had the approval of the Connecticut Assem- 
 bly. 6 
 
 The preamble of another law, enacted in October, 1718, de- 
 clared its purpose to be the preventing of unlawful entries 
 of vacant lands and the resulting alienations. The act re- 
 cited the prevailing frauds, " whereby many persons have 
 been greatly defrauded, great disorders occasioned, divers 
 quarrels excited." The preamble went on to say that, be- 
 cause of these frauds, " the orderly settlement of plantations 
 [is] frustrated ; which mischiefs are likely to continue, and 
 increase, unless sufficient remedy be provided." The land 
 in question, the act said, belonged to the government and 
 company of the Colony of Connecticut, by grant from the 
 crown of Great Britain; divers persons, under pretense of 
 having a right and property in the lands, and without obtain- 
 ing any legal conveyance from the corporation, had pre- 
 sumed to enter upon the lands and improve or sell them. A 
 money penalty was provided in the case of unlawful entry, 
 and it was decreed that entry and possession did not make a 
 title. 7 
 
 The preamble of a fourth act, passed in October, 1722, 
 reported that " some persons have pretended to purchase of 
 Indians their rights as natives of many considerable tracts 
 of land." All such deeds when secured without the consent 
 of the Assembly were, it was announced, ipso facto, void in 
 law. The lands, the act set forth, belonged to the colony; 
 " yet under color of such deeds, persons unacquainted with 
 the said laws may be imposed upon, deceived and greatly 
 wronged." A heavy specified money penalty was provided 
 
 s " Connecticut Laws; Public Statute Laws" (Edition of 1808), Vol. 
 
 1 : 434-435- CL, 
 
 Ibid., 436. 
 7 Ibid., 436-437.
 
 CONDITIONS PRECEDING ITS ESTABLISHMENT T/ 
 
 against those thus presuming to buy lands from the Indians, 
 ;md the persons wronged could recover in court. 8 
 
 Other acts, enacted in Connecticut in 1723 and 1729, brought 
 joyous relief to many of the foremost men of the colony, 
 who, before they had received any patent, had leisurely ap- 
 propriated the common or undivided lands of the ancient 
 towns, and had apportioned them among themselves. The 
 acts recited that " many of the ancient proprietors have not 
 only sold divisions so obtained, but also a considerable part 
 of their interests and proportions in said common lands." 
 The question had arisen whether these sales were valid a 
 question settled by the acts of 1723 and 1729 which con- 
 firmed them as legal. 9 
 
 In May, 1727, another measure was passed by the General 
 Court of Connecticut : " An Act To Prevent Frauds, Quar- 
 rels, and Disturbances in Bargains, Sales, Leases or other 
 Alienations of Land in this Government." By this law any 
 person attempting to give or receive any fraudulent deeds 
 was to forfeit one-half the value. 10 Evidently, by the year 
 1723, the value of land in Connecticut had greatly increased; 
 the preamble of an act passed in October of that year states 
 that " whereas, in the first settlement of this colony land was 
 of little value in comparison with what it is now," etc. 11 
 
 These details as to how lands was appropriated in early set- 
 tlement times, while apparently bearing no close relation to 
 the establishment and functions of the Supreme Court of the 
 United States, are of cognate importance, for it was from 
 these conditions that the predominant class of that era and 
 of later times the owners of the landed estates rose to 
 
 8 Ibid., 439. Ibid., 439-441. 10 Ibid., 446. 
 
 11 Ibid., 444-445. It was an act forbidding the sales of the real estate 
 of heiresses without their consent. Before that time, when heiresses 
 married, their estates became the exclusive property of the husbands, 
 and could be alienated or disposed of without the knowledge or con- 
 sent of their wives. Heiresses must have been in slighter demand after 
 the passage of this act.
 
 l8 HISTORY OF THE SUPREME COURT 
 
 great wealth and potency. Between the methods here de- 
 scribed, the possessions obtained by means of them, and the 
 precedents, laws and interests erected on them, on the one 
 side, and the composition, character and policy of the Supreme 
 Court of the United States, as it was first constituted, on the 
 o^ther, there was the most intimate association, as will be 
 clearly seen. 
 
 The Whole of New Hampshire Appropriated. 
 
 When, after his appointment as Captain-General and Gov- 
 ernor of Massachusetts Bay, New York and other provinces, 
 the Earl of Bellomont arrived in New York, he quickly learned 
 of widespread, popular discontent with the methods by which 
 great areas of land were being seized by enterprising and 
 unscrupulous individuals, or were being obtained by bribery. 
 The proprietorship of what is now the State of New Hamp- 
 shire was claimed by Colonel Samuel Allen, who had bought 
 for 250 the claims of Captain John Mason, a director of 
 the Plymouth Company. In surrendering their charter in 
 1635, the directors of that company had divided their territory 
 among themselves individually ; by lot, the ownership of New 
 Hampshire went to Mason, who, some years previously, had 
 obtained a patent to the same area from the company, the 
 patent having been confirmed by King Charles I. Securing 
 his appointment as Governor of New Hampshire in 1692, 
 Allen declared the whole province his personal property. 
 
 Threatened with action for trespass, the settlers appealed 
 to Bellomont, who investigated. Communicating to the Lords 
 of Trade, June 22, 1700, Bellomont denounced Allen's title 
 as unsound, and charged Allen with having attempted to 
 get a confirmation of the claim by offering him, Bellomont, 
 a bribe of 10,000 in money an offer repeated three or 
 four times. 12 Allen claimed eight or nine hundred thousand 
 
 1 - " Documents Relating to the Colonial History of the State of New 
 York," Vol. IV: 673.
 
 CONDITIONS PRECEDING ITS ESTABLISHMENT 1C) 
 
 acres, valued by Bellomont at more than 3,000,000; Allen 
 himself told Bellomont that he estimated the quit rents alone 
 at 22,000 a year, not to mention the great value of the im- 
 proved rents. 
 
 " And all this," added Bellomont, " besides the woods, 
 which I believe he might very well value at half the worth 
 of the lands. There never was, I believe, since the world 
 began, so great a bargain as Allen had of Mason, if it be 
 allowed to stand good, that all this vast estate I have been 
 naming should be purchased for a poor 250, and that a des- 
 perate debt, too, as Col. Allen thought. ... If Col. Allen 
 shall at any time goe about to make a forcible entry on those 
 lands he pretends to (for, to be sure, the people will never turn 
 tenants to him willingly) the present occupants will resist him 
 by any force he shall bring, and the Province will be put 
 to a combustion, and what may be the .course I dread to 
 think. . . ," 13 
 
 Mason, however, had left an heir who contested Allen's 
 claim. In the long litigation ensuing, Allen was several times 
 defeated, the last time in 1715. Allen's death was followed 
 by that of his son; and after sixty years of turbulence and 
 actions at law, the whole contention became outlawed, to the 
 huge relief of New Hampshire settlers. 14 
 
 Maine Claimed as a Private Estate. 
 
 The entire territory of what is now the State of Maine was 
 claimed as his private property by Sir Fernando Gorges, who, 
 for betraying the Earl of Essex to Queen Elizabeth, had re- 
 ceived rich rewards. The claim descended to Gorges' grand- 
 son, Fernando Gorges, who, on March 13, 1677, sold it to 
 John Usher, a Boston merchant, for 1,250. Usher soon 
 learned that the British government had been contemplating 
 
 13 Ibid., 673-674. 
 
 14 Lodge's "A Short History of the English Colonies in America," 
 402.
 
 2O HISTORY OF THE SUPREME COURT 
 
 opening up the province to settlement; he, therefore, wisely 
 turned over his deed to the governor and company of Massa- 
 chusetts of which colony it remained a~ part until its creation 
 as a State in i82o. 15 
 
 The Practices in Pennsylvania. 
 
 Fraud in the acquisition of land was so notorious in the 
 seventeenth century, that section 20 of the laws originally 
 agreed upon and adopted by William Penn and his followers 
 before they left England, in May 1682, stated that, to prevent 
 frauds and vexations within the province of Pennsylvania, all 
 conveyances were to be enrolled or registered within two 
 months ; else they were to be void. A man of extremely gen- 
 tle character and unselfish in many respects, Penn did not, 
 however, neglect to make ample provision for his personal for- 
 tune. Nor was it solely, as certain historical writers put it, 
 the desire for religious freedom that urged Penn and his 
 Quaker band to settle the wilds of Pennsylvania. 
 
 On July n, 1681, Penn signed a contract or, as it was 
 termed, " certain conditions or concessions " with a group 
 of specified adventurers for their " mutual advantage." The 
 ninth condition declared that " in every 100,000 acres, the gov- 
 ernor and proprietary, [Penn] by lot, reserveth ten to him- 
 self, which shall lie but in one place." 16 By this condition an 
 enormous private estate became vested in Penn and his de- 
 scendants, and caused the greatest mischief. In addition, 
 Penn's heirs, or proprietaries, set up a claim to the whole of 
 the soil contained within the bounds of the original charter. 
 
 Nearly a century later 17 the Legislature of Pennsylvania 
 
 15 Donaldson's "The Public Domain: Its History," etc., 38. 
 
 16 With the litigation growing out of this condition, the Supreme 
 Court of the United States was called upon to do some extensive ju- 
 dicial construction a century and a half later. See case of Kirk vs. 
 Smith, Wheaton's Reports, Supreme Court of the United States, Vol. 
 IX: 257. 
 
 17 November 27, 1779.
 
 CONDITIONS PRECEDING ITS ESTABLISHMENT 21 
 
 felt itself compelled to denounce the manner in which the Penn 
 family had perverted and abused the terms of the charter 
 granted to William Penn. The resolution declared that, al- 
 though the charter was given and held " for the great ends of 
 enlarging the bounds of human society, and the cultivation and 
 promotion of religion and learning," and although " the rights 
 of property, and powers of government, vested in William 
 Penn and his heirs were stipulated to be used and enjoyed as 
 well for the benefit of settlers, as for his own particular emolu- 
 ment," nevertheless the proprietaries had set up claims and 
 had reserved quit rents and purchase money upon all grants 
 of land acts which " cannot longer consist with the safety, 
 liberty and happiness of the good people of this common- 
 wealth. . . ," 18 
 
 The succession of laws passed under the governorship of 
 William Penn indicate the prevalent practices, and show that, 
 to some extent in Pennsylvania, the same method of getting 
 land by fraud and other illicit acts obtaining in New England 
 and elsewhere, were common. A law, decreed on February 
 7, 1700, dealt with " defacers of charters." It provided 
 that whosoever should forge, deface, corrupt or embezzle any 
 charters, gifts, grants, bonds, wills, conveyances or con- 
 tracts, or who should deface or falsify any enrollment, registry 
 or record, should forfeit double the value of the damage 
 thereby sustained, one-half of the damages to go to the party 
 wronged. The offender should be discarded from all places 
 of trust, and be publicly disgraced as a false person, in the 
 pillory or otherwise, at the discretion of the court. 19 That 
 such a law was adopted indicates its necessity. 
 
 Another act, passed in the same year, tells of frequent over- 
 measure in the survey, of land " through the negligence, igno- 
 rance or frauds of the surveyors or chain-carriers, and many 
 
 18 Carey and Bioren's Pennsylvania Laws, 1700-1770, Vol. II: 230- 
 231. This legislative resolution is further described later in this work. 
 ol. 1:5-
 
 22 HISTORY OF THE SUPREME COURT 
 
 surveys have thereby been made erroneous." 20 It would ap- 
 pear that, while the highest dignitaries in the province were 
 themselves obtaining great estates by extra-legal means, they 
 were, at the same time forbidding the common run of people 
 from doing likewise. 
 
 The State of Affairs in Virginia. 
 
 In Maryland and Virginia, great estates were secured by 
 the influential few by the most fraudulent methods ; this was 
 particularly so in Virginia, which then included an immense 
 area. By the Virginia general land act of 1705, the right 
 of extensive landholding was made dependent upon servant 
 or slaveholding. No one was allowed to take up more than 
 5,000 acres unless he owned five or more titheable servants or 
 slaves, in which case he was permitted to secure two hundred 
 acres more for each servant or slave titheable. The same 
 act aimed to prevent further land grabbing on a large scale 
 by prohibiting grants of more than 4,000 acres, with a quali- 
 fying clause in favor of entries previously made for larger 
 areas. If premises settled by inferiors and others were not 
 seated and planted within three years from the date of the 
 grant, the grant was void. Each free immigrant had an im- 
 portation right to fifty acres, and another fifty acres were 
 allowed for his wife and child. Payments for land could be 
 made in tobacco. The provisions of this act were either ig- 
 nored or evaded when it suited the interests of the influential 
 class, or were altered by the further Acts of 1710, 1713, 1748, 
 1779 and those of other years. 
 
 " Although," says an old legal treatise on the subject, " it 
 
 20 Ibid., Vol. VI, Appendix: 54-55 and 61. The social state of Penn- 
 sylvania under Quaker rule may be gleaned from the laws. On Feb- 
 ruary 7, 1700, thirteen acts were passed providing penalties for adultery, 
 rape and various other sex crimes, bigamy, robbing and stealing, break- 
 ing into houses, the firing of houses, forcible entry, assault and battery, 
 murder, spreading false news, defamation and other crimes. These acts 
 were repealed in 1705, and stricter laws enacted in that year, and in 
 succeeding years.
 
 CONDITIONS PRECEDING ITS ESTABLISHMENT 23 
 
 nowhere appears on the statute books, yet it is known that 
 the Governor and Council, exercising the general powers of 
 the crown, were in the practise of granting leave to indi- 
 viduals and companies to locate large tracts of land, by orders 
 to that effect entered on their journal ; and there were also 
 some grants of lands, as compensation for military service 
 by royal proclamations. The grants for military service are 
 confirmed after the Revolution, and such entries in the council 
 books as had been executed by actual surveys were also rec- 
 ognized, but all the rest are annulled." 2i 
 
 Vast Tracts Fraudulently Granted. 
 
 The methods by which great grants of the most valuable 
 land in Virginia were obtained may be illustrated by the Van- 
 meter and other grants. On June 30, 1730, John Vanmeter 
 of New York, was allowed to take up 10,000 acres on the 
 Shenandoah River, for settlement by himself and his family 
 of eleven children. As soon as he should bring in twenty 
 families for settlement, he was to receive a grant of 20,000 
 additional acres (not previously located by Robert Carter, 
 Mann Page or others) on the fork of the Shenandoah and 
 Cohongaroota rivers. 22 He was allowed two years in which 
 to complete this entry, and in the meantime all other persons 
 were forbidden on the lands. By another order of the Coun- 
 cil the grant was enlarged to 40,000 acres. 
 
 Without fulfilling the terms of the grant, the Vanmeters, 
 in 1731 a year after the grant assigned their rights to 
 Joist Kite and Robert M'Coy of Pennsylvania. On October 
 i, 1731, Kite and M'Coy petitioned the Council: That they 
 and their families and a hundred other families were desirous 
 of removing to Virginia, and prayed a separate grant of 
 100,000 acres of land. An " Order in Council " was graciously 
 
 21 "The Revised Code of the Laws of Virginia," Vol. II, Appendix 
 II (Land Laws, Edition of 1819) : p. 345.
 
 24 HISTORY OF THE SUPREME COURT 
 
 entered, granting their petition: thus Kite and M'Coy were 
 allowed to enter the full 140,000 acres. 23 
 
 But the whole of this area lay in the Northern Neck of 
 Virginia, claimed by Lord Fairfax, who, in 1736, entered a 
 caveat against the issuing of a patent to them. A litigation 
 between the contestants and their heirs or lessees ensued 
 which lasted for nearly half a century, Fairfax's opponents 
 generally winning in court, and compelling Fairfax at one 
 time in 1771 to appeal to King George III in Council. 24 
 The final settlement is not clear from the records. 
 
 Under pretext of colonizing the land, great stretches of the 
 most accessible and valuable regions were thus acquired, and 
 were soon formed into large estates, creating in their owners 
 extensive powers of control of local government. 
 
 The Virginia court records attest that corruption and collu- 
 sion were customary methods in obtaining land grants. One 
 such case, for example, as stated in the court's statement of 
 the case, disclosed these facts: That Wood Jones, in the 
 year 1743, obtained an Order in Council for surveying 2,000 
 acres of land, and that, pending the dispute between Virginia 
 and Governor Dinwiddie, he fraudulently paid the pistole fee 
 demanded by the governor, and obtained a patent, notwith- 
 standing that Jones' land patent covered lands patented to 
 one Hatcher, in 1740. The Virginia High Court of Chan- 
 cery stated that the grant to Jones was secured surreptitiously ; 
 that the officer who consummated the business either did not 
 know that Jones' patent included another's land, or it was 
 obtained by collusion between official and grantee. 25 
 
 ""Revised Code, Laws of Va.," (Edition of 1819) Vol. II, 346. 
 
 24 The circumstances of this contest bear the most pregnant and, per- 
 haps, startling relation to the narrative of the Supreme Court of the 
 United States, as will be completely seen later in this work. 
 
 25 Case of White vs. Jones, Washington's Virginia Reports (Court 
 of Appeals), Vol. I : pp. 116-117. The decision in 1792, however, was in 
 favor of the Jones grant, on the ground that so long a time had elapsed 
 before the title was tested, and because fraud had not been definitely 
 proved. The Chief Justice of this court was one of the greatest land, 
 jobbers and speculators of his time. See later.
 
 CONDITIONS PRECEDING ITS ESTABLISHMENT 2$ 
 
 A Group of Lords Become Feudal Proprietaries. 
 
 Much of the richest land in Virginia, especially that 
 territory in what was called the Northern Neck, was orig- 
 inally granted by Charles II when he was a fugitive, and 
 confirmed by James II after he (James) had ceased to reign, 
 to such favorites as Lord Hopton, Lord John Culpeper, Lord 
 John Berkeley (then Sir John Berkeley), Sir William Morton 
 (one of the Justices of the King's bench), Dudley Wyatt and 
 Thomas Culpeper. They surrendered the grant in order to 
 have it renewed with extensions. The grant conferred on 
 them the exclusive ownership of the Rappahannock and Po- 
 tomac rivers in that section. It gave them all the islands, 
 woods, underwoods, timber, fishings, royalty of hawking and 
 hunting, mines of gold and silver, lead, tin and other metals, 
 quarries of stone and coal, etc., to have, hold and enjoy for- 
 ever, and transmit to their heirs. 
 
 Superadded to the grant were certain conferred powers of 
 feudal baronial dominion, by which the grantees could create 
 manors, hold baronial court, could be patrons of churches, 
 nominate all ministers, receive all fees and emoluments, and 
 possess themselves of goods of felons and fugitives, escheats 
 and forfeitures. 28 They were empowered to give, grant or 
 alienate all the granted land to anyone willing to buy, and 
 were allowed a generous twenty-one years in which to settle 
 their domain ; otherwise a certain part of the grant was to be 
 voided. 27 General jurisdiction of the vaguest kind only was 
 reserved to the Governor, Council and Assembly of Virginia. 
 For this absolute lordship, the grantees were, by the charter, 
 required to pay to the crown in annual rent only a paltry six 
 pounds, thirteen shillings and fourpence " in lieu of all serv- 
 ices and demands whatsoever." A one-fifth part of all gold 
 mined, and a one-tenth part of all silver, were also reserved 
 to the Crown. 
 
 - " Revised Code, Laws of Va." (Edition of 1819), Vol. I: 343. 
 - 7 Ibid.
 
 26 HISTORY OF THE SUPREME COURT 
 
 Lord Fairfax Grants 300,000 Acres to Himself. 
 
 The intention of most of the members of the group of dis- 
 solute favorites to whom this rich present was given was to 
 convert it into money to squander in England. His asso- 
 ciates bought out Lord Hopton's interest ; they in turn sold all 
 their rights to Lord Thomas Culpeper, who became sole owner 
 and proprietor in fee simple. Culpeper, in 1736, obtained 
 a confirmation from the Virginia Assembly, and a release 
 from the twenty-one year condition. 28 As the heir-at-law of 
 Lord Culpeper, Lord Thomas Fairfax became the sole abso^ 
 lute proprietor, and his tenants were under " servile, feudal 
 and precarious tenure." By the act of the Virginia Assembly, 
 in 1748, all grants made by Fairfax were confirmed to the 
 patentees, but they were to pay him rents, services and emolu- 
 ments. 29 
 
 So much, for the present, for these chronological facts ; 
 their great importance to the subject of this work will be 
 dealt with later. At the time Fairfax inherited his domain, 
 it was generally supposed that his power, in British and Colo- 
 nial law, was merely a delegated power of sovereignty, to be 
 exercised for the benefit of legitimate settlers. But Fairfax 
 showed how this supposition could be evaded; it was quite 
 simple, as he demonstrated, to vest a huge new estate in him- 
 self by a little circumlocution. On one occasion he made a 
 grant of 300,000 acres to Bryant Martin, his nephew and 
 agent. Martin promptly and fraudulently reconveyed it to 
 Fairfax, who laid out the whole as a splendid manor. 30 
 
 28 " Revised Code, Laws of Va.," Vol. I : Chap. 3, p. 5. 
 
 29 Ibid., Chap. 4, p. 10. 
 
 30 See statement of the court, in 1793, in the case of Jacob Westfall 
 vs. John Singleton, Washington's Virginia Reports, Vol. 1 : 227. Fair- 
 fax did a thriving and dubious land-office business. He invited settlers 
 in, promising them rights, and agreeing to convey land " for three 
 lives, renewable forever," reserving to himself an annual rent. But 
 although the rent was paid, Fairfax refused to convey, and much liti- 
 gation resulted. (P. 228.)
 
 CONDITIONS PRECEDING ITS ESTABLISHMENT 2/ 
 
 Lavish Distribution by the Virginia Council. 
 
 It was by means of these " Orders in Council," given by. 
 members of the Virginia Council to themselves, or often 
 fraudulently or corruptly granted to others, that nearly all the 
 extensive Virginia estates were obtained. The manorial estate 
 of Robert Carter, for instance, was thus secured, embracing 
 60,000 acres of land in Westmoreland County and in other 
 ceunties ; the seat of the estate was Nomini Hall, a great colo- 
 nial mansion in Westmoreland County. Built between the 
 years 1725 and 1732 of brick covered with strong white mortar, 
 this manorial seat was seventy-six feet long and forty wide, 
 and was of unusual magnificence for the time. 
 
 Carter's possessions were so large and valuable that he was 
 called " King " Carter. His domain descended by entail to 
 his grandson, Robert Carter, who, in addition to his landed 
 estate, owned six hundred negro slaves, a flour mill near his 
 mansion capable of milling 25,000 bushels of wheat a year, 
 and was proprietor in part of an iron works in Baltimore. 31 
 
 Another " Order in Council," June 12, 1749, gave to " a 
 numerous company of adventurers," calling themselves the 
 Loyal Company, license to take up and survey 800,000 acres 
 of land, beginning at the North Carolina line and running 
 westward to the Mississippi River; 32 and on October 29, 
 1751, another body of speculators, styling themselves the 
 Greenbrier Company, were given a grant of 100,000 acres. 33 
 
 Two of the leading members of the Loyal Company were 
 Nicholas Lewis and Edmund Pendleton, both of whom by 
 reason of the illicit profits from their speculations, became 
 men of considerable wealth and great influence; Pendleton 
 
 31 Phillip Vickars Fithian's "Journal and Letters, 1767-1774." Fith- 
 ian was a tutor in Carter's family. Robert Carter, the grandson, was, 
 like the other large landholders, of the governing class; as a member of 
 the Provincial Council he was active in the making of laws. 
 
 32 " Revised Code of the Laws of Virginia," Appendix II (Land Laws, 
 Edition of 1819), p. 347. 
 
 33 Ibid.
 
 28 HISTORY OF THE SUPREME COURT 
 
 ascending after the Revolution, to the presidency of the Vir- 
 ginia Court of Appeals a juridical post he long occupied, 34 
 and in which he was called upon to decide many important 
 land disputes. 
 
 Although having anything but a clear title, and fully aware 
 of conflicting claims to part of the land granted it, the Loyal 
 Company hurried its surveys, and rushed ahead to sell many 
 tracts to settlers at the rate of 3 per hundred acres. Caveats 
 were rilled by various persons claiming prior ownership. The 
 greatest bitterness prevailed on the part of competing claim- 
 ants and settlers, the one denouncing the company as an un- 
 principled band of speculative and corrupt usurpers, and the 
 other asserting that they had bought nothing but bad titles, 
 which they had to spend good money to defend. 
 
 The Operations of the Loyal Company. 
 
 The ensuing litigation delayed the completion of the Loyal 
 Company's surveys within the term required by the condition 
 of the grant. But this difficulty was easily solved by the 
 Virginia Council, every member of which, it was suspected, 
 was interested in the grant ; an " Order in Council " was issued 
 on June 14, 1753, granting the Loyal Company four more 
 years in which to complete its surveys. The company then 
 resumed its locations, and its sales to settlers, until the French 
 and Indian war breaking out, an irruption of Indians drove 
 the settlers away. That war over, both the Loyal Company 
 and the Greenbrier Company petitioned Governor Dinwiddie 
 and the Council to renew their grants with a further term of 
 four years for the completion of surveys and the purchasing 
 of rights. 
 
 34 See Washington's Virginia Reports (Court of Appeals), Vol. I, 
 Preface. Pendleton and his associates assigned their rights to other 
 speculators. Evidently the full sums due them were not paid ; in March, 
 1799, Pendleton and Lewis brought suit to enforce payment of the 
 sums due them from their assignees. See, Rev. Code, Laws of Va., 
 etc., Vol. II, Appendix II : 343.
 
 CONDITIONS PRECEDING ITS ESTABLISHMENT 20 
 
 In the meantime, under Governor Dinwiddie's proclama- 
 tion of February 19, 1754, George Washington, on behalf of 
 himself and other officers, secured a grant of 200,000 acres 
 of land, for military services. This tract covered part of the 
 area supposed to have been forfeited by the Loyal Company 
 and the Greenbrier Company for non-performance of condi- 
 tions. The two companies sought by every possible method to 
 have their term extended. 
 
 But although some of their members were among the fore- 
 most politicians and men of wealth in Virginia, the royal 
 officials dared not grant it, in view of a stern proclamation 
 issued by George III, at the Court of St. James, on October 
 7, 1763. This proclamation, the result of many Indian out- 
 breaks and wars and massacres, declared it to be essential to 
 the security of the colonies that the Indian tribes should not 
 be molested or disturbed in their hunting grounds. Whereas, 
 " great frauds and abuses have been committed in the pur- 
 chasing lands of the Indians, to the great prejudice of our 
 interests, and to the great dissatisfaction of said Indians," 
 the purchasing of lands reserved to the Indians was strictly 
 prohibited. 35 In the face of this decree the Governor and 
 Council decided, on May 25, 1763, that they could not grant 
 the petition of the two companies. 36 
 
 But the Loyal and the Greenbrier companies claimed an 
 inalienable vested right in their grant. Was it their fault, they 
 argued, that Indian hostilities had disturbed their operations? 
 Could they be held accountable for non-performance of condi- 
 tions because of the irruptions of Indians? 
 
 They did not, of course; mention that it was the long con- 
 tinuing abuses to which the Indians had been subjected that 
 had driven the tribes to warfare; and if such a plea had been 
 put forth in counter argument, it would not have been listened 
 to in any court of law, for, by the old laws of Virginia, In- 
 
 35 American State Papers : Public Lands, Vol. 1 : 37. 
 30 " Rev. Code, Laws of Va.," Appendix II (Land Laws, Edition of 
 1819), p. 347-
 
 36 HISTORY OF THE SUPREME COURT 
 
 dian captives had long been held legitimate objects of slavery. 
 The Virginia act of 1672 speaks of Indian slaves or servants 
 for life; the act of 1679 declared that Indian prisoners taken 
 in war should be free purchase to the captor; the act of 1685 
 decreed that all Indians whose parents were not Christians 
 at the time of their purchase, and all Indians, which (this was 
 the pronoun used, not who; Indian slaves were held to be 
 property, not persons) were sold by neighboring Indians to 
 the whites as slaves, " are deemed as slaves to all intents and 
 purposes." And although the Virginia act of 1705, according 
 to a decision of the Virginia Court of Appeals, in 1793, had 
 completely repealed all former laws, and had released all 
 American Indians from a state of slavery, yet the servitude of 
 Indians long prevailed. 37 
 
 Washington's Grant Conflicts with the Loyal Company's. 
 
 When, in 1773, George Washington and the other officers 
 and soldiers claiming to be entitled to their grant under Din- 
 widdie's proclamation, sought to have it confirmed, the Loyal 
 Company and the Greenbrier Company came forward with a 
 claim of prior vested rights, and objected to surveys on the 
 land claimed by them. Finally, on December 16, 1773, an 
 " Order in Council " was issued, recognizing the claims of 
 the companies as valid and giving the soldiers land else- 
 where. 38 The promoters of the company were extremely in- 
 fluential in both the Legislature and in the courts ; and an act 
 was secured without difficulty from the Legislature in May, 
 1779, apparently confirming only the lands actually surveyed, 
 upon which, we are told, the Loyal Company " handed in 
 very numerous surveys." 39 At the same time various other 
 
 37 See, Case of Coleman vs. Dick and Pat, Washington's Virginia 
 Reports, Vol. 1 : 239. 
 
 38 " Revised Code, Laws of Va." (Edition of 1819), p. 347, etc. Wash- 
 ington and his fellow officers received their patents in 1772; the act of 
 1779 confirmed them. 
 
 3 Ibid.
 
 CONDITIONS PRECEDING 1 ITS ESf ABLlSHMENT 3! 
 
 grants were confirmed, among them one of 28,627 acres to 
 John Savage and others. 
 
 The precedent thus set in the case of these companies, and 
 the arguments then used, proved to be, as we shall see, of the 
 most stupendous importance in the decisions of the Supreme 
 Court of the United States in the nineteenth century de- 
 cisions by which tens of millions of some of the most valuable 
 public agricultural, coal, iron, timber and grazing lands, and 
 gold, silver, copper and other mineral lands were alienated 
 into large private holdings. 
 
 Enormous Feudal Estates Established in New York. 
 
 In New York and New Jersey far more extensive estates 
 were granted by official favoritism or were obtained by bribing 
 royal officials. 
 
 During the period under Dutch rule, when the province of 
 New York and adjacent territory was called New Nether- 
 lands, the directors of the Dutch West India Company, all 
 of them Amsterdam merchants, secured great domains. For 
 a few " duffels, axes, knives, and wampum," paid as purchase 
 price to the Indians, the agents of Kiliaen van Rensselaer, an 
 Amsterdam pearl merchant, bought, in 1630, a tract of land 
 twenty-four miles long and forty wide, on the west bank of the 
 Hudson. The estate comprised, it was reckoned, seven hun- 
 dred thousand acres, and included what are now the counties 
 of Albany and Rensselaer, a part of Columbia County, and 
 a strip of the present State of Massachusetts. 40 Two other 
 directors, Godyn and Bloemart, obtained great feudal estates 
 in what is now New Jersey ; one of these estates extended six- 
 teen miles both in length and breadth, forming a square of 
 sixty-four miles. 41 These estates to the Patroons carried with 
 them absolute feudal rights ; the unquestionable sovereign 
 rights of proprietorship, the right to decree laws, and the 
 
 40 O'Callaghan's " History of New Netherlands," Vol. 1 : 124. 
 
 41 Ibid., 125.
 
 32 HISTORY OF THE SUPREME COURT 
 
 exercise of "high, low and middle jurisdiction/' and the ap- 
 pointment of all officials. The Patroon was also given the 
 power of policing his domain with his own armed forces. All 
 of these powers he could exercise " according to his will and 
 pleasure." * 2 From such conditions originated in America the 
 great wealth and power of the Van Rennselaer family, which 
 was so potent before, during, and after the Revolution, and 
 which, as we shall have occasion to note, had great influence 
 upon the bench of the Supreme Court of the United States. 
 
 Great Manorial Estates Secured by Bribery. 
 
 After the capture of New Netherlands by the British, and 
 its transformation in name to New York and New Jersey, vast 
 estates were obtained T)y the outright bribery of the royal 
 Governor Fletcher. Lord Bellomont, Fletcher's successor, in 
 a communication dated November 28, 1700, to the Lords of 
 Trade in London, specified how it was that many of these 
 estates had been granted. 
 
 For a bribe of 100, according to common report, as stated 
 by Bellomont, 43 Captain John R. N. Evans, of the royal war- 
 ship Richmond, secured a grant forty miles one way and 
 thirty another, on the west bank of the Hudson River from 
 the present town of Haverstraw to the town of New Paltz in 
 Ulster County. Nicholas Bayard, the founder of an influen- 
 tial and aristocratic family, received from Fletcher a grant 
 forty miles long and thirty wide, on both sides of Schoharie 
 Creek. 44 To Colonel William Smith was granted an estate 
 fifty miles long on Nassau now Long Island. In one year 
 
 42 " Documents Relating to the Colonial History of the State of 
 New York," Vol. 1 : 89-100. Fuller details of the conditions at this 
 time are given in the " History of the Great American Fortunes," Vol. 
 1 : 12-22. 
 
 43 " Documents Relating to the Colonial History of the State of 
 New York," Vol. IV : 463. 
 
 44 Bayard was reputed to be the go-between in arranging with the 
 sea pirates the price to be paid by them in return for Fletcher's pro- 
 tection.
 
 CONDITIONS PRECEDING ITS ESTABLISHMENT 33 
 
 Smith cleared 500, the proceeds of whales captured there, as 
 he admitted to Bellomont. 45 
 
 From Fletcher, Henry Beekman received the grant of one 
 estate sixteen miles long in Dutchess County, and of another 
 estate twenty miles in length along the Hudson River, and 
 running eight miles inland, which particular estate was valued 
 at 5,ooo. 46 By Fletcher's grant Peter Schuyler, Godfrey 
 Delius and associates conjointly secured a grant fifty miles 
 long in the Mohawk Valley, valued by them at 25,000. It 
 was a grant, wrote Bellomont, which " the Mohawk Indians 
 have often complained of." 
 
 Here was the origin of the wealth of the Schuyler family, 
 which later, directly and indirectly, was such an important fac- 
 tor in influencing the course of the Federal Constitutional Con- 
 vention, and the of the Supreme Court of the United States. 
 Bellomont wrote to the Lords of Trade that it was charged that 
 Fletcher had got at least 4,000 in bribes by his " intolerable 
 corrupt selling away the lands of this province." 47 
 
 The Origin of the Livingston Estate. 
 
 It was during this time, also, that another powerful family 
 and fortune were being founded which later exercised a vast 
 influence on American politics, and had its representatives on 
 the Supreme Court bench. 
 
 The younger son of a poor exiled clergyman, Robert Liv- 
 ingston curried favor with one official after another, changing 
 his politics whenever his self-interest demanded it, and held 
 lucrative official posts for half a century, generally filling 
 several offices at the same time. 48 In fact, offices were cre- 
 ated by Governor Dongan apparently for his sole benefit. 
 He also by the same favoritism became an army contractor, 
 
 45 " Documents Relating to the Colonial History," etc., Vol. IV: 535. 
 40 Ibid., 39. 
 
 47 Ibid., 528. 
 
 48 George W. Schuyler's " Colonial New York," Vol. 1 : 285-286.
 
 34 HISTORY OF THE SUPREME COURT 
 
 and the saying was current of him that he made a fortune 
 " by pinching the bellies of the soldiers." 
 
 In his " Albany Chronicles," Reynolds says that Livingston 
 was in collusion with Captain Kidd, the sea pirate, and that 
 Livingston loaned money at ten per cent. By grace of the 
 royal governors, and by means of his own practices, Living- 
 ston, before his death at the age of seventy-four years in 
 about the year 1728, had managed to become the lord of a 
 manorial estate sixteen miles long, and twenty-four miles 
 wide. On this estate he built flour and saw mills, a bakery 
 and a brewery, and exercised feudal jurisdiction. 
 
 Futile Attempts at Confiscation. 
 
 Lord Bellomont made determined efforts to have these great 
 estates confiscated. But he found, as he wrote November 28, 
 1700, to the Lords of Trade, that the Assembly of New York 
 was largely composed of the very landed magnates whom he 
 sought to overthrow. He set forth the grievances of the 
 actual settlers, that they could get no land, and their objection 
 to becoming " a base tenant to Mr. Delius, Colonel Schuyler, 
 Mr. Livingston, and the others of the whole role of our mighty 
 landgraves." Bellomont applied for a peremptory order of the 
 King or an act of Parliament for the confiscation of these ex- 
 travagant and corrupt grants given by Fletcher and other 
 governors. Unless, Bellomont added, " the power of our 
 Palatines, Smith, Livingston, the Phillipses, father and son 
 . . . and six or seven more were reduced . . . the 
 country is ruined." 49 
 
 The Phillipses referred to were Frederick and his son Adol- 
 phus, who had received an immense grant of land in what is 
 now Putnam County, new York. Fredrick Phillips was the 
 employer of the sea-pirate, Captain Samuel Burgess, of New 
 York, who, at first, was sent out by Phillips to Madagascar to 
 
 49 " Documents Relating to the Colonial History of the State of 
 New York," Vol. IV : 533-534-
 
 CONDITIONS PRECEDING ITS ESTABLISHMENT 35 
 
 trade with the pirates, and then soon turned pirate himself. 
 The first voyage yielded Phillips and Burgess 5,000, the pro- 
 ceeds of trade and slave-snatching; from the second voyage 
 they cleared 10,000 and three hundred slaves. 
 
 Marrying a relative of Phillips, Burgess continued piracy. 
 Caught and imprisoned in Newgate, Phillips spent large sums 
 of money to save him from death and finally succeeded. Bur- 
 gess, however, resumed piracy, and met death from being 
 poisoned in Africa while carrying off slaves. 50 
 
 We shall have need of recurring to the Phillips' estate in 
 a later chapter dealing with the means by which John Jacob 
 Astor, in virtue of a noted Supreme Court decision, obtained 
 part of it. 
 
 As a concession to Bellomont's urgent and repeated re- 
 monstrances to England, the New York Assembly annulled 
 at least two of Fletcher's corrupt grants, but most of the ex- 
 tensive grants remained intact, causing popular uprisings in 
 later generations. The corrupt, interested, intrenched forces 
 against Bellomont were many and too powerful. The justices 
 of the courts were either men of the large landholding class, 
 or their servitors. Lewis Morris, Chief Justice of the Prov- 
 ince of New York, was removed from office by Governor 
 William Cosby for (among other accusations) sitting in his 
 own cause in land and other cases. Morris denied these 
 charges in a pamphlet published in I735- 51 Doubtless his de- 
 fense was not altogether without its extenuating features, inas- 
 much as Cosby himself was one of the large landholders and 
 very active in presenting grants of estates. Perhaps the in- 
 terests of competing landholders collided, and Morris serving 
 
 50 " The Lives and Bloody Exploits of the Most Noted Pirates," 177- 
 183. This work, published a century since, was a serious study of the 
 various sea-pirates. 
 
 51 " The Case of Lewis Morris, Esq., Late Chief Justice of the Prov- 
 ince of New York, etc. : To Be Heard Before The Lords of Com- 
 mittee on Plantation Affairs." This document was published as a 
 broadside.
 
 36 HISTORY OF THE SUPREME COURT 
 
 one side, was made to suffer. Morris was later appointed 
 Governor-General of New Jersey. 
 
 Continuing Corruption of Royal Officials. 
 
 To put a stop to the " extravagant grants " of land by 
 royal governors to favorites, accessories or bribers, Bellomont 
 had proposed to the Lords of Trade that no grant of more 
 than a thousand acres be made to any man, except, in the 
 case of larger grants, by special leave of the king. He also 
 recommended placing a quit rent of half a crown on every 
 hundred acres, this sum to go into the royal treasury. It was 
 not until subsequently that, in order to avert abuses and con- 
 sequent popular dissatisfaction, a royal order was issued lim- 
 iting to two thousand acres the amount of land to be granted 
 to any one occupant or settler. But this law was easily 
 evaded ; the royal officials continued to pervert their authority 
 by fraudulently securing for themselves by indirection great 
 estates of the most valuable land, or corruptly gave them to 
 others, as is evidenced by the following examples, recited in 
 the court records: 
 
 In 1737, George Clarke was Lieutenant-Governor of the 
 Province of New York, in which official capacity he was mem- 
 ber and vice-president of the Colonial Council of the province. 
 To this council the king intrusted the power of granting lands 
 for occupation and settlement, subject to the two-thousand- 
 acre limitation. At a meeting of the Colonial Council at Fort 
 George, on August 2, 1737, at which were present Clarke, Chief 
 Justice Kennedy of the Provincial Courts, Courtlandt, Kane 
 and Horsmander, all members of the Council, Clarke presented 
 a petition of William Corry, who had recently emigrated from 
 Ireland. The petition set forth that there was a large tract of 
 crown land in Mohawk County; that he, Corry, had engaged 
 to bring a number of families from Ireland, and he, therefore; 
 applied for a grant of 100,000 acres for himself and for such
 
 CONDITIONS PRECEDING ITS ESTABLISHMENT 37 
 
 other persons as he should name, the names to be inserted by 
 him in the grant. 
 
 How Lieutenant-Governor Clarke Secured a Large Estate. 
 
 When this petition was presented, Clarke left the room. 
 During the time that he was absent, the other members of the 
 Council agreed that Clarke should grant the petition for 100,- 
 ooo acres. An order was accordingly made to that effect by 
 the Council, and a survey ordered. Cadwallader Colden, then 
 the surveyor-general of the province, with Clarke and Receiver- 
 General Archibald Kennedy, were the King's regular commis- 
 sioners for setting out all lands granted. They were in- 
 structed to make out the grant to Samuel Heath, William 
 Crosby (Sheriff of New York), Francis Sylvester and nine 
 others named by Corry as trustees, to, and for, his use ; in the 
 grant Corry had 26,000 acres specifically made out for himself. 
 
 N.early a century later, Levi S. Chatfield, then Attorney- 
 General of New York State, in bringing suit against George 
 Clarke, a rich and powerful descendent of Lieutenant-Gov- 
 ernor Clarke, for the annulment of that ancient grant and for 
 the recovery of the lands to the State, recounted the preceding 
 facts, and further set forth : That after the patent was issued, 
 it was discovered that all the names of the grantees, except 
 Corry, were used in joint trust for Corry and Lieutenant- 
 Governor Clarke; that there was an agreement between 
 Clarke and Corry by which Clarke " should pay half the 
 charges and expenses of surveying the said land, and of pro- 
 curing the patents, and should be interested in one-half the 
 grant of 100,000 acres of land; and that one equal moiety 
 of the 25,400 acres granted by the aforesaid letters patent to 
 the said William Corry and his associates, were so granted 
 in trust for the said Lieutenant-Governor George Clarke ; and 
 that, in compliance with the. agreement and trust, the said 
 William Corry, by deed of release to the said Lieutenant-Gov-
 
 38 HISTORY OF THE SUPREME COURT 
 
 ernor George Clarke, dated February 18, 1738, released to 
 the said George Clarke, his heirs and assigns forever, 12,700 
 acres in, and the moiety of the said premises granted in, and 
 by, the said grant or letters patent." 52 
 
 Attorney-General Chatfield further averred that Corry's pe- 
 tition was false and fraudulent; that none of the grantees had 
 ever removed from Ireland; that the names of everyone, ex- 
 cept his own, had been fraudulently used by Corry ; that Clarke 
 had concealed from the members of the Council and from the 
 Crown his own interest in the transaction ; that the whole pro- 
 ceedings were a fraudulent device to evade the two-thousand- 
 acre restriction ; and that no settlers were ever brought on the 
 land. 53 
 
 Sir William Johnson's Methods. 
 
 Another such example of royal officials fraudulently getting 
 or giving large estates by exercise of their authority was 
 that of Governor Sir Henry Moore, of the Province of New 
 York. Herman Le Roy, William Bayard and other powerful, 
 rich men claimed that they were the owners of a certain 25,- 
 ooo acres in the present Montgomery County, New York. 
 This land had been claimed and improved by settlers. But 
 Le Roy and Bayard could produce no title papers of any kind ; 
 the records, according to their assertions, had disappeared. 
 Not being able to bring forward written proofs, they filed a 
 
 52 Case of People of the State of New York vs. George Clarke, 
 Barbour's Supreme Court Reports (New York), Vol. X: 125. 
 
 53 Ibid., 120-156. This case, and other similar actions, were brought 
 at a time following the outbreak of the " Anti-Renters' War " in New 
 York, when the tenants of the great estates revolted against the feudal 
 customs, laws and exactions still prevailing. In deciding the case, 
 November 25, 1850, Judge Cady (who had been put on the bench by 
 the landholding class) did not attempt to controvert the charges of 
 fraud. He decided against the State on this ground : " It would be 
 an alarming doctrine to hold that every man in the State who holds 
 any land under a grant before the Revolution, may be turned out of 
 possession by the plaintiffs, if a king was cheated, who, one or two 
 hundred years since, made the grant" (page 152). Judge Cady held 
 further that the action was outlawed by the statute of limitations.
 
 CONDITIONS PRECEDING ITS ESTABLISHMENT 39 
 
 bill in court, in 1798, making this remarkable confession of 
 facts as justifying their claims, and disproving those of the 
 settlers : 
 
 That, on February 2, 1768, Governor Moore officially 
 bought 25,000 acres in what is now Montgomery County for 
 the alleged use of twenty-five specified settlers. But their 
 names were really used to evade the one-thousand-acre law ; 54 
 the so-called settlers were, the bill charged, actually used as 
 dummies for Sir William Johnson, and had an agreement 
 with him by which he paid all expenses, and by which they 
 were to turn over the 25,000 acres to him. Sir William 
 Johnson paid upwards of 600 in fees, and the whole tract 
 was conveyed to him in fee simple. 55 On June n, 1772, John- 
 son, for 375, conveyed 10,000 acres to Lord A. Gordon ; an- 
 other 2,000 acres to John Kelly ; and by his will, dated 1774, 
 Johnson bequeathed the remaining 13,000 acres to his two 
 brothers and four sisters. Lord A. Gordon, on December 5, 
 1792, conveyed the 10,000 acres to R. and J. Watts who, on 
 the same day conveyed the tract to Herman Le Roy and 
 William Bayard. The particular explanation of the lack of 
 title papers, in this case, as in similar cases, was that at the 
 outbreak of the Revolution, Johnson's son buried the title 
 papers; that they became lost or illegible; and that nine of 
 the defendants, knowing this, tried to get the whole property 
 and title. 
 
 In deciding this case in favor of Le Roy, Bayard and the 
 other appellants, at Albany, in February, 1798, Judge Ben- 
 son not only made .no attempt to refute the plea made by the 
 claimants, Le Roy and Bayard, of the original fraud, but he 
 made light of it. The supposed illegality, said he, of the 
 agreement between the original patentees and Sir W r illiam 
 Johnson consisted in its being in contravention of the instruc- 
 
 54 The law, at this time, seems to have limited the amount to be 
 granted to any One settler at not more than 1,000 acres. 
 
 55 Johnson's Cases (Court for the Trial of Impeachments and Cor- 
 rection of Errors) [N. Y.], Vol. I: 417-429.
 
 4O HISTORY OF THE SUPREME COURT 
 
 tions from the king to the governor, restraining the patents 
 for land to a stated quantity. " The futility of this regula- 
 tion," added Judge Benson, " was soon discovered, and the 
 instruction was for nearly half a century before the patent 
 mentioned in the bill issued considered altogether as a dead 
 letter, and a compliance with it a mere matter of form. 
 . . ." 58 Le Roy, Bayard and the other personages in whose 
 favor Judge Benson decided were men of the greatest wealth 
 and highest station in the society and politics of the day. 
 They were intimate personal friends and close business asso- 
 ciates of John Jay, the first Chief Justice of the Supreme Court 
 of the United States, and as we shall see in Chapter V, Jay, 
 when special envoy of the United States to Great Britain, 
 asked his friend Nicholas Cruger to let Le Roy and Bayard 
 share in a certain " golden plan " for making " millions 
 sterling." 
 
 If Judge Benson's premises were correct that the law had 
 remained a dead letter, why had the beneficiaries taken such 
 pains to circumvent it? By the people at large, Benson's de- 
 cision was regarded as another skillful theory of justification 
 in behalf of the great landowners then everywhere seeking 
 (and successfully so) to secure that which had been obtained 
 by fraud, and to aggrandize themselves still further. Judge 
 Benson's vote in connection with another notorious transac- 
 tion is described later in this work. 
 
 John Jacob Astor Secures Land Obtained by Fraud. 
 
 A third instance of the fraudulent activities of royal gov- 
 ernors in New York in the eighteenth century was that of 
 two grants in fee, one grant of 18,000 acres in what was then 
 Albany County, on March 25, 1768, ostensibly to Michael 
 Byrn and eighteen others, and a second grant of 25,000 acres 
 
 50 Ibid. It may be observed here that Chancellor Kent, that pre- 
 eminent expounder of the all-pervading rights of property, studied law 
 under Judge Benson.
 
 4i 
 
 on May 8, 1770, to Sir William Johnson and twenty-five other 
 persons. A quarter of a century later John Jacob Astor and 
 two associates contended in court that not the occupying set- 
 tlers but they were the real owners of these tracts of 43,000 
 acres. Astor and his associates could not show a single title 
 paper. In support of their claim they put forward these 
 " facts," evidently not apprehensive in the least that such a 
 defense wo.uld militate against them. 
 
 That, when the two grants were made, Johnson paid all 
 the fees; that the alleged settlers were simply his tools, and 
 their names were inserted for his benefit, with the express in- 
 tention of releasing to him the whole of the tract, which, in 
 fact, was later turned over to him in fee. The appellants in 
 this case John Jacob Astor, William Laight and Peter Smith 
 declared, through their attorney, Aaron Burr, 57 that they 
 had a regular title to the two tracts, one of 18,000, the other 
 
 57 Aaron Burr, at this time, was one of the leading and most adroit 
 Republican politicians in New York State. (The Republican Party of 
 that day was the predecessor of the Democratic Party of later times.) 
 Edward Livingston, Spencer (later Chief Justice of New York) and 
 other noted lawyers appeared in these cases for the respondents. Evi- 
 dently, there was some conflict of great interests not altogether stated 
 in the court records. 
 
 Burr lived next door to Astor at No. 221 Broadway. It was Burr 
 who consummated an adroit piece of business by which Astor became 
 possessed of a lease of 465 lots of land, of later immense value, in 
 New York City. In the year 1767 Trinity Church had leased these lots 
 for 99 years to Abraham Mortier at a total annual rental of $269 a year ; 
 the lots were in the district now bounded by Greenwich, Spring and 
 Hudson Streets. Upon the initiative of Burr, the Legislature, in 1797, 
 determined upon an investigation as to how Trinity Church was expend- 
 ing its income. Of all things Trinity Church wanted no investigation 
 of its affairs. It succeeded in suppressing any actual inquiry. Pres- 
 ently Burr turned up with a transfer of the Mortier lease to himself,' 
 and pledging it as security he obtained a $38,000 loan from the Man- 
 hattan Bank. When after his duel with Hamilton, Burr was forced to 
 flee, Astor obligingly took this extraordinarily valuable lease off Burr's 
 hands. The lease covered land in the business and residental district, 
 and as the city rapidly grew and land values tremendously increased, 
 it was a source of great revenue to Astor and his descendants. For 
 the full account with citations from official records see " History of the 
 Great American Fortunes," Vol. 1 : 167-168.
 
 42 HISTORY OF THE SUPREME COURT 
 
 of 25,000 acres, from Sir William Johnson's executors, who, it 
 was set forth, had power to sell. 
 
 The lower courts had decided in favor of John Morgan, 
 Jonathan Danforth and thirty-three other settlers. As their 
 principal defense, when the case came up on appeal, Astor 
 and his partners in the transaction made the explanation that 
 early during the Revolution, Johnson's papers were put in 
 an iron box and buried in the earth ; that there they moldered, 
 spoiled and became unrecognizable ; and that the settlers, 
 knowing this, sought to get title and property. The decision 
 in the Court f6r the Trial of Impeachments and the Correction 
 of Errors, at Albany, in February, 1799, was in favor of 
 Astor and his fellow appellants, on virtually the same grounds 
 as in the preceding case. 58 The settlers were promptly dis- 
 possessed. 
 
 Also Plead Fraud in Justification. 
 
 Further facts disclosing official fraud and collusion in the 
 granting of large estates came out in the similar case of Her- 
 man Le Roy, William Bayard and others against Peter Servis 
 and other settlers in the same court, in 1801, on an appeal 
 from a decision in favor of Servis. The bill of Le Roy and 
 Bayard filed in court asserted in justification of their claim 
 that, in 1768, Peter Servis and twenty-four other persons had 
 petitioned Governor Sir Henry Moore to buy, for their use, 
 25,000 acres of land from the Oneida Indians in Albany, now 
 Herkimer, County. The bill went on to state that for money 
 or other valuable considerations, the petitioners agreed with 
 Sir William Johnson that, on their getting the 25,000 acres, 
 they would hold the same in trust for him, and duly convey 
 the whole tract to him, provided he paid all costs, etc. This 
 plan was carried out in 1769, and Johnson got the land. 
 
 Le Roy and Bayard interjected their customary defense, 
 
 68 Johnson's Cases, etc., Vol. 1 : 429-435.
 
 CONDITIONS PRECEDING ITS ESTABLISHMENT 43 
 
 namely, that after Johnson's death,..his son, Sir John John- 
 son, buried the papers so that they " were wholly lost or ren- 
 dered illegible," and that Servis and his fellow settlers, aware 
 of the fact, claimed the title, and attempted to get the prop- 
 erty for themselves. The higher court's decision, in Febru- 
 ary, 1801, was in favor of Le Roy and Bayard, 59 and the set- 
 tlers were ousted. These decisions, as will appear, have a 
 deep bearing on later parts of this narrative. Sir William 
 Johnson obtained 93,000 acres, all told, by these particular 
 fraudulent operations. At one time Sir William Johnson's 
 total estate was so vast that he had a domain " which made 
 him, next to William Penn, the owner of the most extensive 
 estate on the continent." G0 Considerable of this area, as has 
 just been described, came into the possession of the Astor and 
 other large landholding families of later times. 
 
 Landowners Become Lawmakers and Judges. 
 
 The great area of land thus obtained by fraud enabled the 
 land magnates to set themselves up as the exclusive lawmak- 
 ing and juridical class ; this fact furnishes the explanation of 
 why it was that, while the officials and their accessories were 
 seizing land, they were at the same time passing laws provid- 
 ing the severest punishments for fraud and other offenses on 
 the part of the generality of people. In a communication, 
 dated September 20, 1764, to the Lords of Trade, at London, 
 Lieutenant-Governor Cadwallader Golden, of New York, de- 
 scribed how the land magnates had managed to usurp the law- 
 making power by putting provisions in three of the large land 
 grants guaranteeing to each Proprietor the privilege of send- 
 ing a representative to the General Assembly. Hence, these 
 landed proprietors became hereditary legislators. " The own- 
 ers of other great patents," Golden further complained, " be- 
 
 50 Caine's Cases (Court for the Trial of Impeachments and Correc- 
 tion of Errors) [New York], Vols. I-II: pp. 3-7. 
 1)0 Roberts' " New York," Vol. II : 623.
 
 44 HISTORY OF THE SUPREME COURT 
 
 ing men of the greatest, opulence in the several American 
 counties where these Tracts are, have sufficient influence to 
 be perpetually elected for those counties. The General As- 
 sembly, then, of this Province consists of the owners of these 
 extravagant grants; the merchants of New York, the prin- 
 cipal of them strongly connected with the owners of those 
 great Tracts by Family interest, and of Common Farmers, 
 which last are men easily deluded and led away with popular 
 arguments of Liberty and Privileges. The Proprietors of the 
 great tracts are not only freed from the quit rents which 
 the other land-holders in the Province pay, but by their influ- 
 ence in the Assembly are freed from every other public Tax 
 on their lands." 61 
 
 Lords Proprietors of New Jersey. 
 
 Virtually the same condition prevailed in all the colonies. 
 The whole of East New Jersey and other parts at one time 
 belonged to a syndicate of twenty-four men, styling them- 
 selves " The Lords Proprietors of New Jersey." They pro- 
 fessed to derive their title from a sale made to them in 1681 
 and 1682 by the widow of Phillip Carteret, the first Proprie- 
 tary Governor. Their claims were recognized in law ; they 
 made large sums of money in disposing of much of the land ; 
 and before and at the time of the Revolution they were a 
 mighty financial, political and social influence in New Jer- 
 sey, 62 a fact which, as we shall have reason to note, had a 
 close relation to the early composition of the Supreme Court 
 of the United States. 
 
 These details give an insight into the methods of possessing 
 
 61 " Documents Relating to the Colonial History of the State of 
 New York," Vol. VII : 654-655. 
 
 02 As late as 1884 the descendants of these Proprietors held a reunion 
 meeting in New Jersey, claiming (but it is not to be supposed seriously) 
 that their inherited rights as Proprietors were still valid, They pub- 
 lished their proceedings in a pamphlet,
 
 CONDITIONS PRECEDING ITS ESTABLISHMENT ' 45 
 
 estates in the northern colonies and the accompanying estab- 
 lishment of a landed aristocracy. 
 
 Extensive Seizures in Carolina and Georgia. 
 
 In Carolina and Georgia then covering a vast extent of 
 territory included in a number of the present Southern States 
 great estates were likewise being acquired by fraud. 
 
 Writing from Savannah to the Lords of Trade, at Lon- 
 don, April 20, 1763, Governor James Wright referred heat- 
 edly to the " very extraordinary procedure of the Governor 
 [Boone] of South Carolina," in allowing the monopolization 
 by a few of the most valuable areas of land. " I say, my 
 lords," Wright continued, " this procedure has struck a gen- 
 eral damp, and dispirited the whole province. I have called 
 this, my lords, the death or destruction of the province; for 
 an extension of limits to the southward, if the lands were 
 properly parcelled out to people who would really cultivate 
 and improve them, would draw some thousand inhabitants 
 here; whereas, by this step taken in Carolina, great part of 
 the lands, my lords, are ordered in large tracts to some wealthy 
 settlers in Carolina, who probably will never see it themselves, 
 and some of whom, it is said, have already more lands in that 
 province than they can cultivate or improve. 
 
 " This, my lords, is pretty well known on this side of the 
 water; and who, having a great number of slaves, claim what 
 they call their family right, that is, fifty acres of land for 
 each slave, although it is highly probable that their ancestors 
 had land for those very slaves, and it is well understood here 
 that many of those persons, especially those who have the 
 largest tracts, have no intention to remove there or settle 
 them ; but probably some years hence, when it begins to get 
 valuable, will sell it, and in the meantime those vast tracts 
 of land are to lie waste and unimproved, as very great bodies 
 yet do in Carolina, and if they should do anything at all
 
 46 HISTORY OF THE SUPREME COURT 
 
 with those lands, it is expected that it will only be by send- 
 ing an overseer and a few negroes just to make a trifling set- 
 tlement, seemingly to comply with the terms of the grant or 
 by way of taking possession." 63 
 
 Governor Wright estimated that Governor Boone had 
 granted 343,000 acres to less than two hundred persons 
 many of them British lords or other speculators " strangers 
 who have never contributed one farthing or one hour's fatigue 
 or hardship toward the support of the province." 64 The 343,- 
 
 000 acres held by a few recipients " would accommodate a 
 thousand very good families and settlers " ; hundreds of fam- 
 ilies were ready to come from North Carolina but could not 
 get land. Frauds and abuses in the survey of land were very 
 numerous. 
 
 Governor Boone's Plea and Explanation. 
 
 When called upon by the Lords of Trade to explain, Gov- 
 ernor Boone of South Carolina wrote, on August 17, 1763, 
 a long, abjectly apologetic letter, expressing his regrets at hav- 
 ing committed and allowed abuses. " I hope, my lords," he 
 wrote in part, " after what I have said, that your lordships 
 will rather look upon it as my misfortune than my fault that 
 
 1 have incurred your displeasure." Claiming that he was 'actu- 
 ated by honest motives, he went on to make this invidious, 
 significant and self -protecting comparison, " I have been Gov- 
 ernor of this province above two years, with as many, if not 
 more opportunities of benefiting myself than any of my prede- 
 cessors ever had, had I chose to be remiss in my duty, as 
 I have been strenuous in the practice of it." 65 The Lords of 
 Trade directed that no extravagant warrants for land should 
 be issued, and tried to break the large grants already made. 
 But their instructions came too late ; the grants remained valid. 
 
 63 "American State Papers: Public Lands," Vol. I: 55. 
 
 "Ibid. 
 
 5 Ibid., 53-54.
 
 \ 
 
 CONDITIONS PRECEDING ITS ESTABLISHMENT 47 
 
 With this resume of some of the conditions under which 
 the landholding class the dominant class of the Revolu- 
 tionary period obtained its immense holdings, we shall now 
 proceed to consider the conditions formulated for the labor- 
 ing, servant and slave classes, and the methods by which an- 
 other class the trading class acquired its wealth, and its 
 corresponding political and social sway. 
 
 At first the trading class was largely identical with the 
 Patroons, and with the companies and the manorial lords of 
 the other colonies who by virtue of their charters, powers 
 and privileges held a monopoly of trading. Even when the 
 trading class began to reveal an independence of the landed 
 class, the two were, nevertheless, often closely affiliated, and 
 frequently comprised the same identity of interests. 
 
 All the conditions, the varied demands and contests, and 
 the laws and traditions put in force by the governing classes, 
 as well as the traditional subjugation of the working classes, 
 were later reflected in the personnel of the Supreme Court of 
 the United States selected to enforce and augment the powers 
 by which the ruling classes benefited.
 
 THE LABORING, SERVANT AND SLAVE CLASSES, AND 
 THE GROWTH OF THE TRADING CLASS 
 
 While an extremely powerful and dictatorial landed aris- 
 tocracy was thus being created by royal grants and official 
 favoritism, or by illegal or fraudulent methods, severe statutes 
 were enacted in all the colonies, the effect of which was to 
 create and perpetuate a dependent and servile class of workers 
 whom the laws differentiated into various menial classes. 
 
 Punitive Puritan Laws. 
 
 The extraordinarily profound piety ascribed to the Puritan 
 fathers was accompanied with a series of drastic laws passed 
 by them prescribing the sharpest limitations for the many of 
 both sexes compelled to work for wages, or for those whom 
 misfortune, in one way or another, branded as defenseless ob- 
 jects of legal and religious persecutions. 
 
 The act of the Massachusetts authorities in 1630, passed in 
 response to the self-interested demands of those who had al- 
 ready acquired property and who needed a constant supply 
 of subservient workers, was the first measure in that colony 
 the purpose of which was to form a permanent class of prac- 
 tically hereditary working people. This act, " Respecting 
 Masters, Servants and Laborers," opened by decreeing that no 
 servant should give, or sell, any truck during time of serv- 
 ice without the consent of masters. All workmen, it declared, 
 should work the whole day that is, as long as they should 
 be ordered allowing " convenient time for food and rest." 
 Compulsory adherence to their tasks was decreed by Section 
 
 48
 
 THE LABORING, SERVANT AND S^LAVE CLASSES 49 
 
 \ 
 
 III. This provided that if any servants ran away from their 
 masters, the magistrate and two chief inhabitants were " to 
 press men and boats or pinnaces at the public charge, to pur- 
 sue such persons by sea and land, and bring them back by 
 force of arms." x The next section placed the question of 
 the rate of wages exclusively in the power of the masters. It 
 decreed that the freemen of the towns should " agree amongst 
 themselves about the prices and rates of all workmen's labor, 
 and servant's wages." To this decision, workman, laborer 
 and servant were to bind themselves. Any master paying 
 wages exceeding the prescribed rates was to be punished at 
 the discretion of the court. 2 Section V provided that wages 
 for servants and workmen were to be paid in corn, the value 
 of which was to be adjudged by two disinterested freemen, 
 one to be chosen by the master, the other by the workman or 
 servant. If they could not agree a third arbiter was to be se- 
 lected by the magistrate. 3 
 
 Strict as this act was, it yet was not without its gleams of 
 prudent humanity a remnant of feudal times when the lot 
 of the laborer had some necessary alleviating phases. Serv- 
 ants flying from the cruelty of the master, the act declared, 
 could be harbored by other persons without being held ac- 
 countable to the law. But the servant had to prove the fact 
 of cruelty before the magistrate, who invariably was a land- 
 owner and employer himself. 
 
 And what if any servant should be maltreated? This con- 
 soling redress was decreed in Section VIII : That, " If any 
 man smite out the eye or tooth of his man servant or maid 
 
 1 " Ancient Charters and Laws of Massachusetts Bay, etc., Pub- 
 lished By Order Of The General Court, 1814": p. 155. The word 
 " servant " as used throughout the colonies in the seventeenth and 
 eighteenth centuries is by no means to be understood as being confined 
 to the narrower conception of the domestic servant of to-day. A serv- 
 ant then was not only one who gave personal household service, but 
 was bonded to perform many agricultural and other occupations for 
 manorial lords, merchants, shippers and plantation owners. 
 
 2 Ibid., 156. 
 
 3 Ibid.
 
 5O HISTORY OF THE SUPREME COURT 
 
 servant, or otherwise maim or disfigure them (unless it be 
 by mere casualty) he shall let them go free from his serv- 
 ice, and shall allow such further recompense as the courts may 
 adjudge him." 4 Appearing, however, before prejudiced 
 courts, it was anything but easy for the maltreated servant to 
 prove that the maiming was not done " by mere casualty " 
 an elastic qualification under which brutal masters took 
 refuge. 
 
 By the next and last section of the act, faithful servants, 
 after seven years' bonded service, were not to be sent away 
 empty. But (and this clause allowed the greatest abuses and 
 impositions) servants unfaithful or unprofitable to masters 
 were not to be freed until they had made satisfaction, accord- 
 ing to the judgment of authority. 5 
 
 An act adopted in Massachusetts in 1631 forbade hiring 
 any person for less time of service than a year, unless he be 
 a " settled housekeeper." 6 The act of September, 1634, pro- 
 hibited the allotting of any lot of land in any plantation to 
 any servant " till he hath approved his faithfulness to his mas- 
 ter during his time of service." 7 In December, 1636, an act 
 was passed in the same colony decreeing that no servant should 
 be set free until he had served out the covenanted time ; the 
 penalty for infraction was to be set by the quarter courts. 8 
 This act also declared that no servant was eligible to any of- 
 fice. 9 The Massachusetts act of 1642 decreed that all unruly 
 poor children were to be bound out for service, and the act 
 of the Massachusetts General Court, in 1720, provided that 
 all children of the poor, whether their parents received alms 
 or not, and whose parents were unable to maintain them, were 
 to be set to work or bound out by the selectmen or overseers 
 the male children until they were twenty-one, and the fe- 
 males until eighteen, years old. 
 
 * Ibid. i Ibid. 
 
 B Ibid. * Ibid., 429. 
 
 Ibid., Appendix, p. 711. 8 Ibid.
 
 THE LABORING, SERVANT AND SLAVE CLASSES 51 
 
 Feudal Conditions Transplanted. 
 
 The Connecticut laws were similar to those of Massachu- 
 setts. The Rhode Island code of 1647 provided that the ar- 
 tificer or laborer must finish any work agreed upon and not 
 depart unless it were that his wages had not been paid. If 
 he quitted work he forfeited 5 to his employer, who could 
 recover in court by an action for debt. 10 In the province of 
 New Netherlands later New York and New Jersey dis- 
 tinctly feudal conditions copied from those in the monarchies 
 of Europe prevailed. Under the act of 1629, elaborated by 
 that of 1653, f tne States General of Holland, any adventurer 
 who shipped over a certain number of adults received ex- 
 tensive grants of land, with feudal rights of proprietorship. 
 These exported peasants became his vassals. The power of 
 the Patroons as the manorial lords under Dutch control 
 were styled over their tenants or serfs was almost unlim- 
 ited. The law ordained that no man or woman, son or daugh- 
 ter, man servant or maid servant could leave a Patroon's serv- 
 ice during the time that they had agreed to yield service; 
 and no infraction of this law was permitted, no matter how 
 gross the abuses or breaches of contract the Patroon com- 
 mitted. 
 
 These laws were variously ratified and increased under Brit- 
 ish rule. By an act passed in New York, October 22, 1684, 
 against " Fugitive Servants And Their Entertainers," it was 
 provided that if any servant, depart or absent himself from 
 his master's service, he or she should be" adjudged to pay 
 the penalty of being forced to ser-ve double their time in fu- 
 ture service to the master. 11 The bonding of impoverished 
 boys, girls and adults in England and in America for long- 
 term services to the American manorial lords and merchants 
 was a fixed condition. 
 
 10 " Rhode Island Colonial Records, 1636-1663," Vol. 1 : 183-184. 
 11 " Laws of The Colony of New York": 147.
 
 52 HISTORY OF THE SUPREME COURT 
 
 The grandiose feudal lord of the manor was not only the 
 proprietor of the soil, but for a long time he was the domi- 
 nant manufacturer and trader, and the mass of people were 
 his retainers or tenants. He owned and exported the furs 
 gathered on his extensive domain, as also the timber for 
 which (that being entirely a sailing-ship era) there was an 
 immense demand both in Europe and America. He, too, .had 
 control over the inland river fisheries, and all other natural 
 resources. He had his stores, his bakery, his flour mills, saw 
 mills and brewery. Tenants were forced by him to sign cov- 
 enants that they would trade nowhere else but at his stores and 
 mills. 12 
 
 His dominion, therefore, was one of arbitrary control over 
 his dependents and he exacted their produce at will. 
 
 The perpetuation of a completely subordinated laboring 
 class in Pennsylvania under Quaker rule was likewise insured 
 by strict laws. An act passed by the General Assembly in 
 Pennsylvania, in 1700, " for the better regulation of servants 
 in this province and territories " declared that " for the just 
 encouragement of servants in the discharge of their duties, 
 and for the prevention of their deserting their masters," no 
 servant, bound to serve time, should be sold, or disposed of, 
 without the consent of the said servant. Violation of this 
 law was to entail a penalty of 10, to be forfeited by the 
 seller. Nor was any servant to be assigned by one master 
 to another, under the same penalty. 13 Every servant faith- 
 fully serving four years or more, was to have a discharge " at 
 the expiration of their servitude," and the act generously 
 read on " shall be duly clothed with two compleat suits of 
 apparel, whereof one shall be new, and shall also be furnished 
 with one axe, one grubbing-hoe, and one weeding-hoe, at the 
 charge of their master or mistress." 14 
 
 12 For a fuller description see "The History of the Great American 
 Fortunes," Vol. I., Chaps, i, 2 and 3. 
 
 13 Carey and Bioren's " Pennsylvania Laws, 1700-1770," Vol. 1 : 14-16. 
 i* Ibid.
 
 THE LABORING, SERVANT AND SLAVE CLASSES 53 
 
 Quaker Methods of Disciplining the Workers. 
 
 The quitting by servants of their master's service was pro- 
 hibited by Section IV of the same act, which enacted that if 
 any servant absented himself or herself from service for one 
 day or more without consent, he should be obliged to serve 
 five additional days to his .or her indentured term of service 
 for each day of absence, and that after the expiration of the 
 term of servitude the courts were to give the master dam- 
 ages. 15 Inasmuch as few servants had any money after their 
 long term of services, this meant that in lieu of damages they 
 had to yield extra servitude. 
 
 The regulations for keeping servants in submission were so 
 onerous, and their enforcement so tyrannous, that the practice 
 of servants running away had become general. Section V 
 made provision for this. Whoever apprehended any fugitive 
 servant within ten miles of the master's abode and delivered 
 the runaway to the Sheriff, was to receive a reward of ten 
 shillings ; within twenty miles, twenty shillings, and thus on 
 with a graduated list of rewards. 16 The section following 
 forbade the clandestine employing of other men's servants. 
 Section VII was designed " for the more effectual discour- 
 agement of servants embezzling their masters' goods." 
 Servants who were not paid, or were ill treated, frequently 
 ran away, taking such necessary articles of apparel or other 
 goods as they needed. The master made a charge of embez- 
 zlement. By the provision of Section VII the buyer of the 
 goods was to pay back double value to the master, and the 
 servant was required to make satisfaction by servitude after 
 the expiration of his or her time, to double the value of the 
 goods. If he were a black servant, he was to be severely 
 whipped. 17 
 
 15 Ibid. The word servitude is the exact word used in the colonial 
 laws. 
 Ibid. 
 17 Ibid.
 
 54 HISTORY OF THE SUPREME COURT 
 
 Maryland Statutes of Bondage. 
 
 Equally strong, although in different respects, were the 
 laws of Roman Catholic Maryland. Chapter XIX, of the 
 Maryland law of April, 1715, prohibited, under heavy penal- 
 ties, masters of ships or vessels, or any other person, from 
 conveying away runaway servants who were under bond or 
 bail. Any person enticing away a servant, apprentice or 
 slave was, for each offense, to forfeit to the owner treble 
 damages and costs for the time the servant, apprentice or 
 slave was missing. 18 The Act of May, 1748, repeated and 
 amplified the provisions of the act of 1715; it decreed a pen- 
 alty of one hundred pounds of tobacco for every hour of 
 harboring fugitive slaves or servants ; the offender was to be 
 lashed on the bare back not more than thirty-nine stripes for 
 each offense, and servants harboring other servants were to 
 receive the same number of lashings. 
 
 No servant, whether working for wages or indenture, 
 should, according to the provisions of Chapter XLIV, Act of 
 April, 1715, travel more than ten miles from the master's 
 house without a note from the master, mistress, dame or 
 overseer, or else be liable to penalties as a runaway. 10 For 
 being unlawfully absent from the master's service, the serv- 
 ant or laborer was to give ten days additional service for each 
 day's absence, and to pay costs. Anyone apprehending a 
 runaway servant or slave was to get a reward of two hundred 
 pounds of tobacco from the owner. No person was allowed 
 to trade or barter with a servant under penalty of two thou- 
 sand pounds of tobacco; goods thus bartered were to be re- 
 covered, and the offender was punishable by a lashing of thirty 
 stripes upon the bare back. 20 A provision especially satis- 
 factory to the rich planters was that all servants imported 
 
 18 "Laws of Maryland," etc. (Edition of 1799), Vol. I. This volume 
 is not paged. 
 i Ibid. 
 20 Ibid.
 
 THE LABORING, SERVANT AND SLAVE CLASSES 55 
 
 without articles of indenture were to serve these terms of 
 servitude (service) : 
 
 Servants more than twenty-two years old to serve five 
 years; those between eighteen and twenty-two years old to 
 serve six years; those between fifteen and eighteen years old 
 to serve seven years; and all under fifteen years old were to 
 serve until they were twenty-two years old. 21 Inasmuch as, 
 with the connivance of the authorities, a regular traffic was 
 carried on by procurers in kidnaping men, women and chil- 
 dren under various pretenses from Europe to the colonies, the 
 significance of this statute can be seen at a glance. A white 
 woman having a child by a negro was, if a free woman, to 
 serve seven years in servitude; and if she were a servant an 
 additional seven years. Any white man doing likewise with 
 a negress was to undergo the same penalties. 22 Free persons 
 and servants (white laborers) could not be married without 
 the express approval of master or mistress ; the laws long kept 
 the sharpest distinction between free whites, on the one hand, 
 and bonded whites and whites of compulsory servitude, on 
 the other. During the very period of the Revolution seven 
 months after the adoption of the Declaration of Independence 
 asserting that all men were born free and equal the General 
 Assembly of Maryland, in February, 1777, passed an act 
 Chapter XII of which prohibited ministers, under penalty of 
 50 from marrying a free person and a servant without the 
 consent of master or mistress. 23 
 
 The drafters of the Maryland act of 1715, strained them- 
 selves, we may assume, to the utmost in inserting provisions 
 placing the following restrictions upon the masters : 
 
 If they did not feed or take sufficient care of servants by 
 allowing needed rest, or if they taxed any servant beyond his 
 strength, they were to pay a penalty for each offense dot ex- 
 ceeding one thousand pounds of tobacco. For any one of- 
 fense the master could give the servant ten lashes; this was 
 
 **Ibid.
 
 56 HISTORY OF THE SUPREME COURT 
 
 legal; but if he gave more, he was subject to the same pen- 
 alty. 24 
 
 The same law provided most munificently what the servant 
 should receive after his long period of servitude. At dis- 
 charge the master was to give each servant a new hat, a good 
 suit, a new pair of shoes, two hoes and one ax, and one gun of 
 twenty shillings price. Failing to do this, the master was to 
 pay a penalty of five hundred pounds of tobacco. 25 
 
 Lords and Vassals in Virginia. 
 
 Extensive baronial domains and large estates in Virginia 
 were procured by British nobles, adventurers, companies, 
 planters and military officers with such facility that the most 
 pressing necessity there, as elsewhere, was a permanent sup- 
 ply of workers to hew the forests, cultivate the arable soil, 
 man the ships and otherwise develop and distribute the re- 
 sources. The exportation from England of poor whites, con- 
 victed of one or another of the trivial offenses then punished 
 so severely in British law, supplied a portion of this demand 
 and kidnaping another part. The enslavement of Indians 
 and negroes furnished the remainder. 
 
 The Virginia act of 1670 declared that all servants, not 
 Christians, imported into Virginia by shipping, should be 
 slaves for life, but that those coming by land should serve for 
 a limited time. This statute seems to have applied to ne- 
 groes, to Indians from other provinces, and even to white con- 
 victs. 26 The acts of 1672, 1679 and 1685, distinctly, as we 
 have seen, validated the enslavement of Indian captives. The 
 long continuing enslavement is evidenced by the fact that as 
 
 24 "Laws of Maryland," etc. (Edit, of 1799), Vol. I. 
 
 26 We have seen how the Virginia general land laws of 1705 allowed 
 planters to acquire free lands in proportion to the number of servants 
 or slaves owned. The more slaves or servants, the greater the area of 
 land granted,
 
 THE LABORING, SERVANT AND SLAVE CLASSES 57 
 
 late as 1793 the case (Footnote 37, Chap. I), of Coleman vs. 
 Dick and Pat was before the Virginia Court of Appeals for 
 the determination of the question whether Indians could be 
 held as slaves. On that occasion the court held, as we have 
 stated, that a statute passed in 1705 was a complete repeal of 
 the acts of 1672, 1679 and 1685, " and since that period no 
 American Indian can be reduced to a state of slavery." But, 
 added the court, " foreign Indians coming within the descrip- 
 tion of that act, might be made slaves." " The president of 
 the Virginia Court of Appeals at this time was the same Ed- 
 mund Pendleton who was one of the promoters of the Loyal 
 Company which had obtained a grant of 800,000 acres of land 
 and which had enriched itself by a succession of fraudulent 
 operations. 
 
 The conditions tinder which bonded white laborers, and 
 Indian and negro slaves toiled were not invariably hard ; 
 here and there a humane and generous master was to be found, 
 but he was a very rare exception. So oppressive was the lot 
 of the servant, laborer and slave, on the whole, that at the 
 first opportunity a desperate flight for freedom was made. 
 To prevent this, severe laws were passed in Virginia exceed- 
 ing in harshness those in other colonies. 
 
 The Virginia act of 1748 (22 George II, Cap. 17) offered 
 rewards in specified sums to those catching fugitive seamen. 28 
 Any person harboring a servant who lacked the necessary 
 certificate attesting that his time of servitude had expired, 
 was required to pay the owner thirty pounds of tobacco, with 
 costs, for every day the runaway was sheltered. 29 The same 
 act decreed that if a runaway servant used a forged certificate 
 he was to stand for two hours in a public pillory ; as for the 
 forger he was to forfeit 10 with costs, failing to pay which 
 he was to receive thirty-nine lashes on the bare back, " well 
 
 27 Washington's Virginia Reports (Court of Appeals), Vol. I: 239. 
 
 28 "Virginia Laws" (Edition of 1759), p. 314. 
 20 Ibid.
 
 58 HISTORY OF THE SUPREME COURT 
 
 laid on " at the common whipping post. 30 If, after the arrest 
 of runaway servants, white or negro, no owner appeared at 
 the gaol after a stated time, an iron collar was to be put by 
 the keeper of the gaol on the servant's neck, marked with the 
 letters " P. G." at the time the servant was delivered to the 
 person hiring him. 31 
 
 Slaves Dismembered with Impunity. 
 
 Section XXXV of the same act was extremely ferocious. 
 It decreed that in the case of any slave notoriously guilty of 
 going abroad at night, or running away and lying out and 
 "who cannot be reclaimed from such disorderly courses by 
 common methods of punishment" (whipping and imprison- 
 ment), the court could order such a reprobate " to be punished 
 by dismembering, or any other way not touching life, as they 
 shall think fit ; and if such slave shall die by means of such 
 dismembering, no forfeiture or punishment shall be thereby 
 incurred." 32 
 
 The Virginia act of 1753 (22 George II, Cap. 7) altered 
 and extended some of the previous laws. By this act, all 
 servants (except convicts), who had been imported without 
 articles of indenture, were to serve a period of servitude of 
 not more than five years. Every owner was obliged to care 
 for sick or lame servants during the whole period of service. 
 If servants did not obey their owners' " just and lawful com- 
 mands, and resist or offer violence to master, mistress or 
 overseer," a year more of servitude was to be added for each 
 offense. In cases of violations of penal laws in which free 
 persons were punishable by fine, servants were to be pun- 
 ished by whipping, " after the rate of twenty lashes for every 
 five hundred pounds of tobacco or fifty shillings current 
 
 so " Virginia Laws" (Edition of 1759), p. 314. 
 
 31 Ibid., 316. The meaning of the letters " P. G." is not stated in the 
 statute. 
 ? 2 Ibid., 319.
 
 THE LABORING, SERVANT AND SLAVE CLASSES 59 
 
 money." But no servant was to get more than forty lashes 
 at one time. 33 
 
 After having served their years of laborious servitude, 
 the servants, men and women, were cold-bloodedly turned out 
 in an impoverished condition, with nothing more than a few 
 articles allowed by law, and perhaps a few bits of money ; but 
 money was scarce, tobacco largely being used in Maryland 
 and Virginia as currency. Frequently during their terms of 
 service, servants were forced to undergo a change of masters, 
 at least in Virginia ; when planters fell in debt it was common 
 for them to sell their land and servants. 34 The most vigorous 
 part of the laborer's life was given in compulsory service to 
 the master ; and usually after the expiration of his term of 
 servitude, his vitality was impaired, and he had no means of 
 securing subsistence. In custom and law he occupied a de- 
 graded position, from which in the South, at least, is derived 
 the old contemptuous sneer at " white trash." The best and 
 most valuable lands in the accessible portion of the country 
 had already been preempted by adventurous individuals, 
 manorial lords or planters who had acquired them by the 
 means described in the foregoing chapter. The poor white 
 owned nothing to speak of, and was virtually allowed to own 
 nothing; his situation was a dire one. 
 
 Houses of Correction and Workhouses. 
 
 The inevitable consequence was x a quick and direct creation 
 of a destitute class. Many, incapable of working longer, or 
 filled with great repulsion because of their hard labor under 
 servitude, wandered pathetically about and became what were 
 called vagabonds; others took to theft or drink; still others 
 to begging; and the prostitution of women was early in evi- 
 dence. How did the lawmakers meet these conditions? 
 
 They began to establish houses of correction and work- 
 
 33 Ibid., pp. 326-329. 
 
 84 So stated in a broadside published at the time.
 
 6O HISTORY OF THE SUPREME COURT 
 
 houses. By the Massachusetts act of 1646, houses of cor- 
 rection were ordered, and magistrates were required to com- 
 mit to those institutions runaway servants, " idle persons, 
 common drunkards and common night walkers," and to pro- 
 vide materials of work. 35 The act of 1699 of the same colony 
 made more effective provision for houses of correction and 
 workhouses, and the putting to work in those institutions of 
 " rogues, vagabonds, common beggars and other lewd, idle 
 and disorderly persons." For such as were stubborn and de- 
 clined to work, ten lashes or a starvation diet were pre- 
 scribed. 36 
 
 The Massachusetts act of 1720, as we have seen, compelled 
 the setting to work, or the bonding out, of all children of the 
 poor. The New Hampshire act of 13 Anne decreed that any 
 Indian, negro or mulatto servant found abroad, without satis- 
 factory excuse, after nine o'clock at night was to be locked up 
 in the house of correction, and returned to the master next 
 morning. If the arrest happened to be in a place where there 
 was no house of correction, then a lashing of ten stripes was to 
 be given by the constable in place of imprisonment. 37 The 
 Connecticut laws approximated those of Massachusetts and 
 New Hampshire. The Rhode Island code of 1647 ordered 
 each town to provide for the relief of the poor, maintain the 
 impotent, and employ the able under an overseer. 38 But an 
 order followed three years later in 1650 requiring that 
 any man not having more than 5 could be adjudged a pauper, 
 and treated legally as a pauper. 39 
 
 The acts of Pennsylvania of May 31, 1718, August 19, 1749, 
 and those of other years dealt with the establishment of 
 measures for the relief of the poor. Beginning with a pre- 
 
 35 " Ancient Charters and Laws of Massachusetts Bay," etc., 178. 
 so Ibid., 334-338. 
 
 87 " New Hampshire Acts And Laws" (Fowler's Edition of 1761), 
 p. 41. 
 
 38 " Rhode Island Colonial Records, 1636-1663," Vol. 1 : 184-185. 
 
 39 Ibid., 227.
 
 THE LABORING, SERVANT AND SLAVE CLASSES 6l 
 
 amble that the poor within the city of Philadelphia and ad- 
 jacent parts " are becoming very burthensome and expensive 
 to the inhabitants," the Pennsylvania act of February 8, 1766, 
 incorporated a society to be called, " Contributors to the Re- 
 lief and Employment of the Poor in the. City of Philadel- 
 phia." 40 The same act tells that whereas " great numbers 
 of rogues, vagabonds and other idle and dissolute persons 
 frequently come from the neighboring provinces to the said 
 city, without following any labor, trade or business, or hav- 
 ing any visible means of subsistence, and are not only dan- 
 gerous members of society, but in the end become burthen- 
 some to the Publick " therefore, they are to be committed 
 to the House of Employment to be kept at hard labor for 
 three months. 41 
 
 Early in the settlement of New York, the idle and beggars 
 became so numerous, that acts were passed on November i, 
 1683, and on May 13, 1691, providing poorhouses for the 
 maintenance of the poor and for the preventing of " vaga- 
 bonds, beggars, idle persons, and those without manual 
 crafts " ; these laws made a special provision for beggars, re- 
 quiring their deportation to towns from which they came. 42 
 
 Badges of Degradation for the Poor. 
 
 But of all the colonies, the poor laws of Virginia, as in the 
 case of servants and slaves, were the harshest. The poor 
 were forced to wear the most humiliating and visible tokens 
 of their degrading poverty. The act of 1748 (22 George II, 
 Cap. i, sect. 5) turned the poor over to the supervisor of the 
 church parishes which were required to build houses for their 
 
 40 Carey and Bioren's " Pa. Laws, 1700-1770," Vol. 1 : 417-419. 
 
 41 Ibid., 423-424. The succeeding law of March 9, 1771, said that the 
 laws theretofore enacted had not answered " the good purposes ex- 
 pected." Ibid., Vol. II: i. 
 
 *- " Laws of The Colony of New York," pp. 131 and 237. The pres- 
 ence of beggars entailed expense and annoyance; accordingly each town 
 sought to rid itself of them by driving them from its limits.
 
 62 HISTORY OF THE SUPREME COURT 
 
 lodging and employment. The parishes were to provide cot- 
 ton, hemp, flax and other materials for the setting -of the 
 poor at work. If inmates did not behave according to the 
 rules, or were refractory, corporal punishment was to be 
 administered, not exceeding ten lashes at a time for each of- 
 fense. The vestries were allowed to dispose of the profits 
 of the poor's work, and were to be held accountable. 
 
 By this law every such poor person was compelled " in an 
 open and visible manner " to wear on the right sleeve of his 
 or her upper garment a badge with the name of the parish (to 
 which he or she belonged) cut in blue, red or green cloth. 
 If the poor under supervision neglected or refused to obey, 
 the church warden could punish by abridging the allowance 
 of the offender to the slimmest possible diet, and apply not 
 more than five lashes at one time for each offense. This act 
 was to be enforced in all of the courts. 43 
 
 Violations of laws prohibiting the acquiring or conveying 
 of land by fraud entailed, as we have seen, only a nominal 
 money penalty. Not often, of course, were these laws en- 
 forced ; the officials who made, interpreted and enforced them 
 were mainly themselves involved in the grossest land frauds, 
 or their influential friends were. Before the Revolution, 
 judges in some of the colonies received no fee or reward; 
 they were composed exclusively of manorial lords and other 
 men of fortune and estates. When destitute workers re- 
 sorted to theft they were punished under a code of the most 
 barbaric laws designed to protect the property of the possess- 
 ing class. 
 
 Barbaric Punishment for Offenses. 
 
 For burglary or robbing from any house or from any per- 
 son on the highways, the Massachusetts act of 1642 imposed 
 these penalties: 
 
 43 ''Virginia Laws" (Edition of 1759), pp. 282-286.
 
 THE LABORING, SERVANT AND SLAVE CLASSES 63 
 
 \ 
 
 For the first offense the letter B was to be branded on the 
 offender's forehead ; he was to be again branded and severely 
 whipped for the second offense; and for the third he was to 
 be put to death. If the crime were committed on the Sabbath 
 he was, in addition to branding, to suffer one ear to be cut 
 off for the first offense; the second offense was to entail the 
 cutting off of the other ear; and death was to be the penalty 
 for the third offense. 44 The act of 1692 provided branding 
 for the first offense ; for the second, the culprit was to be set 
 upon the gallows, neck in rope for an hour, and thirty-nine 
 lashes were to be given. The third offense brought death. 45 
 Theft increased in Massachusetts, and the act of 1715, en- 
 tailing the death penalty, was intended to decrease crime. 40 
 But it had no such effect. In 1770 an act was passed impos- 
 ing death without benefit of clergy for entering a dwelling 
 house at night with intent to steal. 47 The Rhode Island code 
 of 1647 decreed death for burglary committed by all more 
 than fourteen years of age. But the qualification was added 
 that this clause did not extend to " poor persons that steale 
 for Hunger, nor to fooles, nor to madd men." In the cases 
 of such persons as, also, in the cases of those under fourteen 
 years old, the crime was held to be larceny. 48 
 
 What was the punishment for larceny? For the petty lar- 
 ceny of goods not exceeding twelve pence, the offender was 
 to be " well whipt " for the first offense ; for the second he 
 was to serve two months in the House of Correction and be 
 twice whipped. 
 
 Grand larceny included the theft of anything more than 
 twelve pence in value. The first offense brought a severe 
 whipping, and a term in the house of correction. The sec- 
 
 44 " Ancient Charters and Laws of Massachusetts Bay," etc., p. 56. 
 
 43 Ibid., 239. 
 
 40 Ibid., 407.- 
 
 Ibid., 669. 
 
 48 "Rhode Island Colonial Records, 1636-1663," Vol. I: 167. This act 
 was an explicit admission that many of the poor were compelled to 
 steal, driven to it by hunger. Begging and other such crimes were 
 generally prompted by the same incentive of self-preservation.
 
 64 HISTORY OF THE SUPREME COURT 
 
 oncl resulted in branding in the hand, and a sentence of im- 
 prisonment until the convicted person paid twice the amount 
 to the party wronged, and four times the sum to the Colony 40 
 which, assuredly, he never could. 
 
 The Quaker punishment for larceny in Pennsylvania was 
 very much the same as that of the New England Puritans. 
 Section XXIX of the Pennsylvania act of 1718, " for the ad- 
 vancement of justice," enacted that for larceny, first offense, 
 the offender must restore goods or chattels, pay the costs of 
 the prosecution, go to jail, and be publicly whipped on the 
 bare back with stripes " well laid on, not exceeding twenty- 
 one." The second offense brought the same penalties, with 
 a public whipping of from twenty-five to forty stripes. 50 
 
 Imprisonment of Debtors. 
 
 Such are some examples of the laws in the various colo- 
 nies. But other laws in force bore heavily on the wage work- 
 ing laborer. In all the colonies laws were passed and en- 
 forced for the imprisonment of debtors. These laws were 
 not in so many words specifically directed at the poor, but it 
 was exclusively upon the laborers that their application fell. 
 Falling in debt because of misfortune, or because of the ex- 
 tortions of landlord and tradesman, 51 the worker was sum- 
 marily despatched to jail, and remained there under rigorous 
 and wretched circumstances, unless he chose to avail himself 
 of the alternative the law presented. 'This alternative was 
 that the imprisoned worker could make satisfaction for his 
 debts by pledging himself in servitude to his creditors. 
 
 49 " Rhode Island Colonial Records, 1636-1663," Vol. 1 : 174. 
 
 50 Carey and Bioren's " Pa. Laws, 1700-1770," Vol. 1 : 143. 
 
 51 As has been noted, the tenants of the manorial lords and masters 
 were covenanted to trade and buy exclusively at his stores. The owner 
 was able to exact such prices as he pleased, with the result that tenants 
 invariably were in debt. When it suited the particular interest or other 
 motive of the owner to put the tenant in jail, he did so. See also 
 Chapter III of this work showing the enormous prices exacted by 
 merchants.
 
 THE LABORING, SERVANT AND SLAVE CLASSES 65 
 
 That those having property not only escaped the enforce- 
 ment of these laws, but tried to pervert them fraudulently to 
 their own purposes is clearly shown, for example, in a Penn- 
 sylvania act, passed in the year 1730. Reciting that the prior 
 law contained no provision compelling the debtor to render 
 any account of his or her estate, the act went on to say that 
 " great abuses had been committed by persons claiming the 
 benefit of the law, in concealing their estates and making 
 them over in trust " 52 thus revealing that Quaker profes- 
 sions of " brotherly love " went sadly astray when in conflict 
 with economic interest. This act declared that debtors should 
 render accounts; and, among other provisions, it gave land- 
 lords the right to recover up to one year's rent, by seizure of 
 imprisoned debtors' goods and chattels. The jailor, also, was 
 to rank as a creditor for his fees, but jailors, bailiffs and 
 others guilty of extortion were to be punished. 53 
 
 But the abuses heaped upon the workers continued, as is 
 evident from the preamble of a Pennsylvania act adopted in 
 the year 1745. This act, " for the easy and speedy recovery 
 of small debts " began by saying that " it is found by expe- 
 rience that a great number of the lawsuits which are com- 
 menced in this province, are brought against the poorer sort 
 of people for small sums of money, who are unable to bear 
 the expenses arising by the common method of prosecution." 
 Although reducing the costs of actions two-thirds, this law 
 really made it easier for landlords and traders to collect from 
 small debtors; if the debts were not paid, the law decreed 
 imprisonment. 54 
 
 The Existing Contrasts. 
 
 In all the colonies, but more markedly so in the South, there 
 were thus, broadly speaking, two classes, each the extreme and 
 the antithesis of the other. 
 
 C2 Ibid., 232-247. " /bid. 54 /bid., 278.
 
 66 HISTORY OF THE SUPREME COURT 
 
 The various strata of the workers, as defined by law and 
 usage, comprised one class. Hemmed in by harsh statutes, 
 and oppressed by the power of a class invested with the full 
 force of law and wealth, and construing those laws to their 
 uttermost limits, the workers found themselves in a situation 
 from which it seemed impossible to extricate themselves. In 
 dress and living, as in other ways, the most obviously striking 
 distinction was compelled between worker and master. 
 
 Attired in clothes of the coarsest materials, betokening 
 plainly his occupation, lowliness and menial condition, the 
 worker moved about in an environment surcharged with the 
 suspicion and undisguised scorn of those who owned his 
 labor, and often his life. Such little consideration as was 
 afforded by law to prevent too brutal treatment of him was 
 not because he was esteemed human. It arose, not always, 
 but on the whole, from the aim of the more far-seeing of the 
 master class to preserve his efficiency at the highest level pos- 
 sible. 
 
 Resplendent in gold and silver lace and buttons, delicate 
 laces and fine apparel, his sword pendant on his embroidered 
 belt always conspicuous, the master was a very different ap- 
 pearing person from the bent, clodded worker whom he looked 
 down upon and treated with a haughty distrust and arro- 
 gance that awoke the bitterest but inarticulate resentment. 
 The rude little tenant cottages or huts in which the slave, 
 servant or laborer existed, grouped, as those mean habitations 
 often were, about the manorial or plantation mansion, formed 
 the sharpest contrast with the elegant style in which the mas- 
 ter luxuriated. This environment in Virginia is described by 
 Jefferson in his " Memoirs " : 
 
 "At the time of the first settlement of the English in Vir- 
 ginia, when land was had for little or nothing, some provi- 
 dent persons having obtained large grants of it, and being de- 
 sirous of maintaining the splendor of their families, entailed 
 their property upon their descendants. The transmission of
 
 THE LABORING, SERVANT AND SLAVE CLASSES 67 
 
 these estates from generation to generation, to men who bore 
 the same name, had the effect of raising up a distinct class 
 of families, who, possessing by law the privilege of perpetu- 
 ating their wealth, formed by these means a sort of patrician 
 order, distinguished by the grandeur and luxury of their es- 
 tablishments. From this order it was that the king usually 
 chose his counsellor of state." 
 
 It was then, much more than now, the fashionable mark 
 of a gentleman not to " degrade " himself by labor of any 
 kind ; and the leisure of his rank in the South was considered 
 to be well and truly signified by spending his time in hunting, 
 athletic sports, carousing, dissipating, gambling, 55 and in social 
 festivities or, in the case of many of the " gentlemen " past 
 youth by making a foible of reading, music and study and a 
 science of debauchery. Some few there were who applied 
 themselves seriously to such mental development as their en- 
 vironment and interests allowed; and these became the most 
 astute representatives of their class. 
 
 In New England, it was the fashionable part of a gentle- 
 man to affect church patronization, which religious ardor, 
 however, did not prevent his gratifying his appetite for some 
 very unorthodox practices. The barriers separating classes 
 and grades of classes in New York and New England almost 
 approached the rigid precision in the South. At the base 
 were the slaves, during the period in which Indian or negro 
 slavery was in existence there. Then came the indentured 
 servants ; then the free laborers ; after them the mechanics ; 
 then the yeomen or small farmers, above whom were the 
 small merchants or traders. The next stratum was the pro- 
 fessional class. Above these towered the gentlemen mer- 
 
 55 A gentleman in the South lost caste if he did not gamble profusely 
 and for high stakes. In Virginia and Maryland the stakes were usually 
 tobacco. Thus, for example, one Beverly, during minorship, lost 25,000 
 pounds of tobacco to one Smith, and Smith sued to recover. See case 
 on appeal of Buckner and other trustees of Beverly vs. Smith et al. 
 Washington's Virginia Reports, Vol. 1 : 296.
 
 68 HISTORY OF THE SUPREME COURT 
 
 chants or shippers, comprising those of wealth and large 
 commercial operations. At the apex stood the lords of great 
 estates, or royal officials, both often in one category. 
 
 Between these classes or " orders " as they were termed 
 sharp lines of recognized caste were drawn. Whether at 
 pious ceremonies in church or at public meetings, people were 
 ranged in order of precedence according to their station. Up 
 to the time of the Revolution students in Harvard College, 
 according to Thwaites, were catalogued arid regarded purely 
 in the order of their social rank; and even after the actual 
 custom was dropped the spirit long persisted. Each " or- 
 der " was expected to look up to that above it, and all of the 
 " lower orders " were called upon to yield the most reveren- 
 tial respect and obedience to the upper class. 
 
 The fashions, views and prejudices of the master class were 
 absorbed, and in application even exceeded, by the profes- 
 sional men of whom the rich were clients. Some of the law- 
 yers themselves sprang from the ruling class. With but the 
 fewest and most creditable exceptions, all others of that pro- 
 fession sought to ingratiate themselves into the favor of the 
 rich by flattering, pleasing and serving them with an excess 
 of zeal in stamping down the worker still further by statutes 
 ingeniously borrowed from mediaeval law, or by harrowing 
 the worker in the courts with lawsuits in which these attor- 
 neys by every subtle argument appealed to the prejudices of 
 the judge, already antagonistic to the worker and prejudiced 
 against him. Even if the judge, perchance, were impartially 
 and leniently disposed, the laws, as they were, left him no 
 choice. Reading the suits and speeches of the times, one sees 
 clearly that the lawyers of the masters outdid even their cli- 
 ents in asserting the masters' lordly, paramount rights and 
 powers, and in denying that any rights attached to the under 
 class. This lickspittle subservience to their clients was sub- 
 sequently, as we shall have abundant occasion to observe,
 
 THE LABORING, SERVANT AND SLAVE CLASSES 69 
 
 transferred to the bench of the Supreme Court of the United 
 States with the most far-reaching results. 
 
 Development of Native Manufacturing. 
 
 While the landlords and traders were thus enacting law 
 after law causing or affirming the servitude and practical vil- 
 lenage of the working people of every kind, they were them- 
 selves making profits in the exercise of the most fraudulent 
 operations in trade. The very debts for which the worker 
 was imprisoned were often claimed for bills for adulterated 
 or otherwise spurious merchandise. 
 
 Landlord and trader were often the one and the same per- 
 son ; not so much the petty landlord, who owned a lot or two. 
 in the cities, but the lords of the great plantations and mano- 
 rial estates. 50 They, or their agents, traded with the Indians 
 for furs, which were exported to Europe ; they sold and ex- 
 ported the timber and lumber from their domains ; from the 
 estates along the seashore and rivers were exported great 
 quantities of fish, especially to Roman Catholic countries ; 
 they had their grist mills, breweries and other industries. 
 And out of the planter class developed a manufacturing class 
 not manufacturing in the modern factory sense, but an industry 
 in which commodities were made by hand by bonded serv- 
 ants, slaves and wage workers. A broadside published at the 
 time 5T said that the wars in Europe had hurt the tobacco 
 trade so much and had so reduced the planters " that for several 
 years past the whole product of their tobacco would hardly 
 clothe the servants that made it. Some of the Planters," the 
 broadside went on, " in hopes of better Success, have con- 
 tinued planting, till they have run themselves so far in debt, 
 
 r>G They were then called plantations in New England, as well as in 
 the South. 
 
 57 The Present State of the Tobacco Plantations In America." The 
 exact date of this broadside is uncertain.
 
 7<D HISTORY OF THE SUPREME COURT 
 
 that they have been forced to sell part of their Land and 
 Servants, to secure the rest. Others, out of meer Necessity, 
 have fallen into the manufacturing of Woolen, Cotton, Flax, 
 Leather," and various other enumerated classes of goods, 
 which, said the broadside, they had brought to great perfec- 
 tion. Here we see the beginning of that manufacturing which 
 later was to be so important a factor. 
 
 Debauching of Indians and Other Traders' Frauds. 
 
 So firmly established and so widespread early in the seven- 
 teenth century was the practice on the part of white traders 
 of debauching and cheating the Indians, that in the " Certain 
 Conditions or Concessions," agreed upon by William Penn in 
 connection with his charter, in July, 1681, before he left Eng- 
 land, this provision was inserted: 
 
 " Twelfthly. And forasmuch as it is usual with the plant- 
 ers to over-reach the poor natives of the country in trade, by 
 goods not being good of the kind, or debased with mixtures, 
 upon which they are sensibly aggrieved, it is agreed, whatever 
 is sold to the Indians, in consideration of their furs, shall be 
 sold in the market place, and there suffer the test, whether 
 good or bad ; if good, to pass ; if not good, not to be sold for 
 good, that the natives may not be abused nor provoked." 58 
 
 However sincere Penn may have been in seeking to prevent 
 in Pennsylvania trie debauching and swindling of Indians go- 
 ing on shamelessly in other colonies, the agreement was of 
 absolutely no effect. Quaker traders, not less than Puritan 
 and Southern traders elsewhere, profited from the practice, 
 and pushed it to such an extent that on May 22, 1722, a law 
 was enacted in Pennsylvania prohibiting the selling of rum 
 and other strong liquors to the Indians and " to prevent 
 abuses that may happen thereby." 50 Later acts for the pre- 
 
 68 Carey and Bioren's " Pa. Laws," Vol. VI, Appendix, p. 10. 
 s Ibid., Vol. 1 : 87.
 
 THE LABORING, SERVANT AND SLAVE CLASSES Jl 
 
 vention of these widespread abuses were passed on April 8, 
 1758, April 17, 1759, and April 2, 1763. 
 
 The very liquor sold to the Indians and whites was adulter- 
 ated. To prevent " fraud in mixing and adulterating rum, 
 brandy, or such like spirits," a law was enacted in Pennsyl- 
 vania in the year I7O5. 61 An act passed in 1722 prohibited 
 the use of unwholesome materials in making beer ; 62 and these 
 acts were reenforced by another act passed in 1723. Such 
 fraudulent practices extended to other lines of trade in Penn- 
 sylvania; a fact that is of no little significance, seeing that 
 that colony, later State became one of the foremost in 
 manufacturing in the United States. 
 
 An act, passed in 1759, was designed " to prevent the ex- 
 portation of bad or unmerchantable staves, beading boards 
 and timber " ; many abuses and frauds, the act said, went on 
 in the exportation of stuffs to the foreign markets. 63 The 
 decline in the export trade of shad and herring led to the 
 passage of an act, in 1774, to prevent frauds in the packing 
 and preserving of those goods for exportation. 64 The export 
 of fish from the New England fisheries comparatively large 
 at the time, gradually fell off for the same reason, as official 
 reports later showed. 
 
 Large fortunes were accumulated by ship owners from the 
 export of fish, timber, tobacco, furs, corn, rice, manufactured 
 products and other commodities and in the return importation 
 of negro slaves and merchandise. These fortunes, and the men 
 who acquired or inherited them, had the greatest influence in 
 determining both the declaration and the course of the Revolu- 
 tion, the fashioning of the Constitution of the United States, 
 the drafting of the State Constitutions, and the laws of 
 
 00 Ibid., p. 343, etc. 
 
 01 Ibid., 60. Evidently the Quaker lawmakers were much concerned 
 for themselves in demanding strong drink; there was much mixing of 
 water with rum, brandy, etc., the act complained. 
 
 2 /&uf., 166. 
 
 03 Ibid., 347-352. 
 
 o* Ibid., Vol. II : 122.
 
 72 HISTORY OF THE SUPREME COURT 
 
 Congress; and some of them, as we shall see later, had their 
 direct influence and their representatives upon the bench of 
 the Supreme Court of the United States. These wealthy 
 shippers had a positive and keen personal interest in seeking 
 to continue the actual substance even if the form of gov- 
 ernment were changed of the conditions from which they 
 profited. But it was the conditions as a whole so conducive 
 to the benefit of the predominating landed interests, with the 
 allied but subordinate trading class, that prepared the way 
 for later events to be now described.
 
 CHAPTER III 
 
 THE REAL FORCES OF THE REVOLUTION AND THE 
 DRAFTERS OF THE CONSTITUTION 
 
 The American Revolution of 1776 did not proceed from 
 any intrinsic popular impetus for national independence. On 
 the part of the intelligent elements of the working class, con- 
 scious of the oppression to which they were subjected, there 
 had long been a smoldering sense of revolt ; but it was a revolt 
 against the tyranny of the manorial lords and other masters. 
 At times it had broken out into spasmodic and abortive up- 
 risings, which, necessarily local in their scope, had been 
 speedily put down, and the leaders imprisoned or executed. 
 
 These outbreaks were not against British laws and ex- 
 actions; they arose from conditions in Dutch, as well as in 
 British, colonies. The laws weighing so intensely upon the 
 various grades of the working population were, in general 
 principle, imitated from the European codes, chiefly the Brit- 
 ish. In special character and adaptation, however, they were 
 of native make. They were demanded, drafted and enlarged 
 by the manorial lords and merchants in the colonial councils 
 and legislatures, and enforced by officials of the same class. 
 The remonstrances of the settlers to Lord Bellomont and Gov- 
 ernor Wright revealed how, when a favorable occasion came, 
 appeals for relief were made over the heads of the legislatures 
 direct to the British Government. 
 
 The Revolution was declared by a combination of powerful 
 men of the day even then styled in official proclamations as 
 capitalists controlling much of the valuable natural re- 
 sources and their products. Some of these dissatisfied mili- 
 
 73
 
 74 HISTORY OF THE SUPREME COURT 
 
 tant personages were owners of vast estates ; others were dis- 
 gruntled shippers or merchants united, and with very good 
 reason, by a common economic interest in seeking to secure 
 control of a political state by means of which they could assist 
 the development of trade and manufacture unshackled by the 
 paralyzing laws ordained by the British trading class. These 
 various groups were more or less interrelated by property in- 
 terest and often by marriage ; and all were agreed upon the 
 distinct aim of vesting in themselves the power to acquire 
 unlimited areas of the public domain unhampered by restric- 
 tive British laws and regulations. 
 
 Attached to the Revolutionary movement because of its 
 supposed potentialities for bringing about an alteration of 
 laws promising political freedom and social equality, were 
 sincere, pecuniarily disinterested radicals. Making allowance 
 for what proved to be alluring and empty phrases conceded 
 by the men of large property to appease and move the multi- 
 tude, the purposes of these radicals were entirely subverted, 
 and their plans circumvented. 
 
 It is not the intention here to enter into a detailed narra- 
 tive of the Revolution, nor to present any other facts than 
 those strictly necessary to elucidating the subject of this 
 work. To get a right understanding of subsequent events, a 
 clear, logical summary of the genuine acts of the Revolution 
 and of its sponsors and directors, is a necessary prelude. A 
 chain of hitherto unpublished and illuminating facts herein 
 set forth facts significantly omitted from approved conven- 
 tional histories will serve to explain the real outcome of 
 the Revolution and will show which class it was intended ex- 
 clusively to benefit. These facts will also reveal the actual 
 nature of the forces drafting the Constitution of the United 
 States, and so vigorously pushing its adoption. Furthermore 
 what, at present, is more important the facts in ques- 
 tion will open a hitherto unsuspected vista through which may 
 be seen in all their significance some of the real motives and
 
 THE REAL FORCES OF THE REVOLUTION 75 
 
 interests underlying and actuating the Supreme Court of the 
 United States from its very foundation. 
 
 Unlimited Areas of Land Sought. 
 
 American land proprietors, and adventurers seeking large 
 grants, had long been impatient with acts of king or Par- 
 liament placing limitations upon the area of land to be granted. 
 
 The bitter conflict that Lord Bellomont had with some of 
 them, his relentless exposure of their briberies, and the al- 
 tered laws resulting, left lasting memories of resentment. 
 Most of the royal viceregents could be reached by bribery or 
 other insidious influences, but there was always imminent dan- 
 ger of the advent of an honest official like Bellomont. The 
 successive kings and queens found the granting of immense 
 estates in America an inexpensive method of rewarding fav- 
 orites. 
 
 Parliament and the Boards of Trade and of Plantations, 
 however, were more concerned with the general broad prin- 
 ciple of colonization, and with developing a trade calculated 
 to increase the wealth of the aristocracy and traders of Eng- 
 land, and with conserving the interests of both classes, who 
 regarded America as a prime field for exploitation. The in- 
 terests of the American landowners and shippers profited by 
 the shipping of supplies of timber, fish, tobacco and other 
 commodities, often fraudulent in some respect or other. The 
 British traders complained of this widespread fraud ; and thus 
 it is we find the records of Parliament in the seventeenth cen- 
 tury numerously sprinkled with acts prohibiting fraud in the 
 exportation from America of this or that merchandise. 
 
 Pursuing their projects for wealth three thousand miles 
 across the Atlantic, at a time when news from Britain three 
 months old was fresh news, in a country being newly opened, 
 the land proprietors, for the most part, did not see why they 
 should respect this interference. Between them and the trad-
 
 76 HISTORY OF THE SUPREME COURT 
 
 ers of England the seeds of an economic conflict early de- 
 veloped. This conflict gathered new and important auxiliaries 
 in the shippers and manufacturers. Timber was abundant in 
 America, and with bonded labor, slaves and low-paid me- 
 chanics, ships could be built cheaply and rapidly. A great 
 number of ships were constructed, and profitable cargoes were 
 at hand. Hard by the iron deposits that were discovered, 
 furnaces and foundries were erected; part of the abundance 
 of furs was used for the manufacture of hats, and another 
 part exported in the -raw state. Planters, as we have seen, 
 began to utilize their bonded and slave labor in the manufac- 
 ture of linen and cotton cloth from the cotton and flax 
 cheaply raised on new and fertile soil by the same labor. The 
 wool of the flocks of sheep was turned into woolen cloth, 
 and the hides of the cattle into leather goods. The trade of 
 the colonies became world-wide. 
 
 These products made lucrative cargoes for the shippers, 
 and supplied an expanding market for the manufacturing 
 planters. But so fast were ships built, that the need for 
 ever-increasing cargoes arose. The American shippers more 
 and more resented the monopoly of the importation of tea 
 granted by the British Government to the East India Com- 
 pany tea then being in wide use. Conveying their cargoes 
 to Europe, the American ships brought back cargoes of negro 
 slaves from Africa, but the owners also wanted a share in the 
 return transportation of tea and other commodities. 
 
 British Traders Strike at American. 
 
 During the same period England was becoming a more ex- 
 tensive manufacturing country ; in its insular situation, with 
 a fairly dense population dependent upon its industries and 
 foreign trade, its trading class was compelled to bend every 
 effort toward suppressing the threatening American competi- 
 tion. Consequently, Parliament, representing those interests,
 
 THE REAL FORCES OF THE REVOLUTION 77 
 
 passed act after act designed to crush the American manufac- 
 turer, and cripple the American shipping trade. 
 
 Various laws prohibited the exportation of hats, and the 
 sale in one colony of hats made in another; iron mills were 
 forbidden ; in fact everything that could be made from natural 
 resources was legislated against. A heavy duty was put upon 
 the importation of molasses, then extensively employed in 
 making rum, and also used by fishermen ; onerous duties were 
 also put upon tea, nails, glass and paints. The shippers, some 
 of whom individually owned three score ships, attempted to 
 evade these regulations by smuggling, but they were con- 
 fronted by another set of British laws, enforced by vigilant 
 British officials. 
 
 From this conflict Qfjrading inte^est^betwegn the trading 
 class of Great Britain, and that of the American colonies^_the_ 
 America.!^ Revolution^ was "born. IFwas estimated that proba- 
 bly nine-tenths of all the tea, wine, fruit, sugar and molasses 
 consumed in the colonies were smuggled. The tea used in the 
 colonies reached alone an item of $2,500,000 annually. 
 Thomas Hancock, the greater part of whose fortune of 70,- 
 ooo John Hancock inherited, gathered the larger part of it 
 illicitly in the Dutch tea trade; and in the " Historical Essay," 
 prefaced to his voluminous mass of biographical details in his 
 " Loyalists of the American Revolution," Sabine says that 
 immediately before the Revolution was declared, John. Han- 
 cock was respondent in the Admiralty Court, in suits of the 
 crown, to recover nearly half a million dollars as penalties 
 for smuggling. 
 
 The greatest offending port in the practice of smuggling 
 was Boston ; there the British Government stationed twelve 
 warships. At least a fourth of the signers of the Declara- 
 tion of Independence were traders, or both shippers and land- 
 holders ; more than one of them, Sabine says, was branded 
 with the epithet of smuggler. . Among the^ signers of the Dec- 
 laration of Independence these were some of those having
 
 78 HISTORY OF THE SUPREME COURT 
 
 large shipping interests: John Hancock, John Langdon, 
 Samuel Adams, William Whipple, George Clymer, Stephen 
 Hopkins, Francis Lewis, Philip Livingston, Elbridge Gerry, 
 Joseph Hewes, George Taylor, Roger Sherman, Henry Laur- 
 ens and Robert Morris. 
 
 Americans Agitate for Native Factories. 
 
 In 1774, many of the conventions of deputies of the various 
 colonies^ composed, as those assemblies were, of landowners, 
 merchants and lawyers, passed resolutions denouncing the 
 monopoly of tea granted to, and exercised by, the East India 
 Company, and demanding the establishment of native manu- 
 factories. 
 
 The Maryland convention of deputies, meeting at Annapolis, 
 December 8 to 12, 1774, adopted a series of resolutions. To 
 increase flocks of sheep and to promote the manufacture of 
 wool in Maryland, the killing of lambs ought to be restricted. 
 For the increasing of the manufacture of linen and cotton, 
 every planter was advised to raise as much flax, hemp and 
 cotton as he conveniently could. Then, referring to the gen- 
 eral boycott placed on certain British goods, followed this 
 illuminating resolution, which in itself supplies the clearest 
 index as to why it was so great a number of workers were 
 constantly being imprisoned for debt : 
 
 " One general rule, allowing a reasonable profit to the 
 trader and preventing him from taking advantage of the scar- 
 city of goods which may be occasioned by the non-importation 
 would give great satisfaction to the merchants and people of 
 this province, Resolved unanimously: 
 
 " That no merchant ought to sell his goods at wholesale 
 for more than one hundred and twelve and a half per cent. ; 
 at retail, for cash, for more than thirteen per cent. ; on 
 credit, for more than one hundred and fifty per cent, on the 
 prime cost ; and that no merchant, or other person, ought to
 
 THE REAL FORCES OF THE REVOLUTION 79 
 
 engross [monopolize] any goods, wares, or merchandise what- 
 soever. . . ." * 
 
 If these rates of profit were considered " reasonable," what 
 was to be said of the previous prices exacted from the work- 
 ers, the condition of most of whom forced them to buy on 
 credit ? 
 
 In providing for military companies with the not far-dis- 
 tant plan of resisting England, this convention, as was to be 
 expected, ignored the common man because it feared him 
 under arms, and declared : 
 
 " Resolved, unanimously, That a well regulated militia, com- 
 posed of the gentlemen, freeholders and other freemen is the 
 natural strength and only stable security of a free govern- 
 ment," therefore, it was recommended to that class of in- 
 habitants, between the ages of sixteen and fifty, that they 
 should form themselves into military companies. 2 
 
 At the same time the other colonies were passing similar 
 resolutions. Those adopted by the Massachusetts Convention 
 of Deputies at Boston, on December 8, 1774, were the most 
 extensive and ambitious. In addition to calling for the es- 
 tablishment of woolen and cotton mills, it also recommended 
 measures for the creation of manufactories for making steel, 
 tinplates, fire-arms, saltpeter, paper, buttons, stockings and 
 other enumerated commodities. 3 
 
 Run the Factories with Woman and Child Labor. 
 The purpose of these nascent capitalists * are to be seen 
 
 1 Niles' " Principles and Acts of the Revolution in America ; A 
 Collection of Speeches, Orations and Proceedings. . . . And Other 
 Fugitive or Neglected Pieces" (Edition of 1822), p. 131. It is a ques- 
 tion whether the " thirteen per cent." quoted above is correctly given by 
 Niles. 
 
 -Ibid., 182. A freeholder was one who owned a prescribed amount 
 of property. 
 
 -Ibid. 
 
 * Those who may think that the word capitalist is a fairly modern 
 coined word, are advised to consult the old British and Spanish royal 
 colonial proclamations, in which the word was frequently used.
 
 80 HISTORY OF THE SUPREME COURT 
 
 clearly in the report of the proceedings of a company formed 
 in Philadelphia for the establishment of woolen, cotton and 
 linen manufactories. An elaborate account of a speech de- 
 livered at a meeting of this company at Carpenters' Hall, 
 Philadelphia, on March 16, 1775, is to be found in Niles' 
 " Principles and Acts of the Revolution in America." It does 
 not specify the name of the company, nor does it give the 
 name of the promoter who made the long speech, but it says 
 that the account given was published at the time by request 
 of the company. 
 
 Obscurely published, that speech is invested to-day with an 
 historic importance because of the conditions it foretold. 
 
 The speaker dwelt at considerable length upon the great 
 riches to be derived from the establishment of manufactories, 
 and he described the factories of Great Britain as " the founda- 
 tion of her riches and power. They have made her mer- 
 chants nobles, and her nobles princes." He then proceeded to 
 consider in turn each of the objections advanced against the 
 foundation of factories. 
 
 The plan of the company, he said, was to employ the poor, 
 " and the principal part of the business was to be carried on 
 in their houses." Here, evidently, was the origin of the sweat- 
 shop system, at least in conjunction with the factory system. 
 A certain portion of the work could be done in the homes 
 of the poor, but the age of machinery had arrived, and fac- 
 tory buildings were quite necessary. The colonies were largely 
 of an agricultural character; there was much apprehension 
 that factories would absorb men who were wanted as tillers 
 of the soil. The speaker went on to dissipate these fears of 
 the large landholders. As to where the labor was to come 
 from he said that in England the greater number of factory 
 " hands " had been taken from the plow. But there would 
 be little nead of such a drain in America.* " Besides," he went 
 on, " if these manufactories are conducted as they ought to 
 be, two-thirds of the labor of them will be carried on by those
 
 THE REAL FORCES OF THE REVOLUTION 8l 
 
 members of society zvho cannot be employed in agriculture, 
 namely, by women and children." 5 
 
 Continuing, the speaker considered other objections. " A 
 second objection," he said, " is, that we cannot manufacture 
 cloths so cheap here, as they can be imported from Britain. 
 It has been the misfortune of most of the manufactories which 
 have been set up in this country, to afford labor to journey- 
 men, only for six or nine months in the year, by which means 
 their wages have necessarily been so high as to support them 
 in the intervals of their labor. It will be found, upon inquiry, 
 that those manufactories which occupy journeymen the whole 
 year, are carried on at as cheap a rate as they are in Britain. 
 The expense of manufacturing cloth will be lessened from 
 the great share women and children will have in them; and 
 I have the pleasure of informing you that the machine lately 
 brought into this city for lessening the expense of time and 
 hands in spinning is likely to meet with encouragement from 
 the Legislature of our province. In a word the experiments 
 which have already been made among us convince us that 
 woolens and linens of all kinds may be made and bought as 
 cheap as those imported from Britain, and I believe everyone 
 who has tried the former will acknowledge that they wear 
 twice as well as the latter. 
 
 " A third objection to manufactories is that they destroy 
 health and are hurtful to population. The same may be said 
 of navigation, and many other arts which are essential to 
 the happiness and glory of a State. I believe that many of 
 the diseases to which the manufacturers [factory workers] in 
 Britain are subject, are brought on, not so much by the nature 
 of their employment, but by their unwholesome diet, damp 
 houses and other bad accommodations, each of which may be 
 prevented in America." 
 
 B Niks' " Principles and Acts of the Revolution In America," etc., 
 p. 205. The italics are mine. G. M. 
 Ibid.
 
 82 HISTORY OF THE SUPREME COURT 
 
 This meeting was held, and this project expounded, more 
 than a year before the drafting and adoption of the principles 
 embodied in the Declaration of Independence. Here we per- 
 ceive the industrial capitalist class at work at its very birth 
 calmly setting out to promote its wealth and power on the 
 bodies of women and children. We see, also, that the plan 
 was no vague, dimly defined one, but an alert, already ma- 
 tured, determined one of competing with England, and oper- 
 ating the machines, with the very cheapest labor obtainable 
 that of women and children. If former agricultural laborers 
 did the factory work cheap in England, women and children 
 would do it cheaper here, thus outdoing the capitalist class 
 of England in cheapness of labor. 
 
 This was the plan resolved upon before the overt beginning 
 of the Revolution, which pretended to act upon the principle 
 that all men were born free and equal. And these facts must 
 give a shock even to radical writers who, without tracing the 
 origin of woman and child labor to its iniquitous source, have 
 maintained that it was originally somewhat of an accidental 
 development. This plan decided upon, it was easy to con- 
 script women and children from the workhouses and houses 
 of correction or arrange accommodations with the overseers 
 of the poor into whose absolute jurisdiction the poor laws 
 then placed the children of the poor. 
 
 Masses of men, having no interest in trade, and, in fact, 
 cherishing well-founded grievances against those who by con- 
 trolling the courses of trade control the destinies of men, will 
 not fight simply to extend trade. A far stronger incentive 
 than sordid gain is necessary to arouse popular imagination, 
 daring and enthusiasm. So the landed, shipping and trading 
 groups soon discovered. The more perspicacious of them saw 
 that to stir the required ardor and to enroll volunteers, it was 
 essential to make the mass believe that they were to fight for 
 undying progressive principles for their own advancement and 
 welfare, and that all should have a share in property. The
 
 THE REAL FORCES OF THE REVOLUTION 83 
 
 associations, called patriotic societies, supplied a small num- 
 ber of volunteers of their own rank, but composed as they 
 were, of certain landowners, traders, and large or small mer- 
 chants, the greater part of their members remained at home 
 to put through great land acquisitions under cover of the 
 Revolution, or to profit from financial or trade operations at 
 the expense and sacrifice of the Continental army and of the 
 nation. The famous " Sons of Liberty " of New York were 
 composed of middle-class merchants, one of whom, William 
 Mooney, later founded the Society of " St." Tammany the 
 Tammany Hall of the future. 
 
 Inspiring Slogans for the Mass. 
 
 As a means of inciting popular temper and winning faith, 
 the associated governing classes now professed to take up 
 some of the very doctrines for the advocacy of which, pre- 
 viously, they or their ancestors had punished men with prison 
 sentences or summary execution. 
 
 Clause I of the Bill of Rights of Pennsylvania asserted : 
 " That all men are born equally free and independent, and 
 have certain natural, inherent and inalienable rights, amongst 
 which are the enjoying and defending life and liberty, acquir- 
 ing, possessing and protecting property, and pursuing and ob- 
 taining happiness and safety." 7 In various forms other colo- 
 nies asserted the same. 
 
 But the landowners, shippers, traders and lawyers, com- 
 posing the majority who adopted the Declaration of Inde- 
 pendence, apparently decided not to allow so momentous a 
 declaration to receive the stamp of their authority. Giving 
 the people the form, and smothering the substance, they 
 omitted the all-important doctrine that every man was entitled 
 to acquire and own property, and they left in the Declara- 
 tion, the meaningless phrase that every man was entitled to 
 
 7 Carey and Bioren's " Pa. Laws," Vol. VI, Appendix, p. 30.
 
 84 HISTORY OF THE SUPREME COURT 
 
 life, liberty and the pursuit of happiness. They were not 
 ignorant of the fact that to live and enjoy life, the means of 
 subsistence must first be assured; the prospect, however, of 
 a surrender of their own caste, powers and privileges, a cur- 
 tailment of the projects many of them had in mind and soon 
 carried out, and the entrance of democracy into the affairs of 
 government, affrighted them. 
 
 That the Revolution was essentially and definitely a traders' 
 rebellion for liberty of trade to get what they wanted, make 
 what they willed, and sell where they could, no small pro- 
 portion of the workers were fully sensible. To get recruits, 
 desperate action was found necessary. At the instigation of 
 the merchants, small guerrilla mobs were repeatedly organized 
 to terrorize and coerce the passive, unwilling or antagonistic. 
 Bounties, then considered enormous, were held out as in- 
 ducements for enlistment; the price (in paper) for a single 
 recruit was, according to Sabine, as high sometimes as $750 
 and $1,000 on enlistment for the war, and the donation, in 
 addition, of land bounties and emoluments by Congress. It 
 was these inducements that brought into the Revolutionary 
 army so large a number of foreigners. 
 
 On the other hand, although many of the great landholders 
 from varying motives of self-interest, pushed forward the 
 Revolution, there were other great landowners, who, having 
 no interest in trade, and having benefited well under British 
 rule, by the corrupt use of which they, as officials, had got 
 their estates, did not desire a revolution. These pro-British 
 landholders organized whole battalions, and even regiments, 
 of Americans to fight in the royal army, and personally paid 
 their expenses throughout the war. 
 
 Once the Revolution was satisfactorily under way, and a 
 sufficiency of the people were deluded by the phrases handed 
 out, or coerced into action, and absorbed by the war, the real 
 promoters of the Revolution, backed by all the power of* the
 
 THE REAL FORCES OF THE REVOLUTION 85 
 
 governing class, proceeded on two special lines of policy. 
 These were carried on at the same time, and both with the 
 most immediate success. 
 
 Propertyless Disqualified from Voting. 
 
 The first of these operations was to counteract and annul 
 in every possible way the dangerous agitation to confer equal 
 rights on all. At the very height of the Revolution, State 
 constitutions were adopted, depriving the propertyless of any 
 voice in the government. Realizing what a popular impression 
 the promise of equal rights made, Article I of the Massachu- 
 setts Convention of 1780 began with the clause that among 
 the rights of all men was " that of acquiring, possessing and 
 protecting their property." 8 
 
 This was a palpable catchword and counterfeit. In the text 
 of the Constitution itself, a strict property qualification for 
 voters was established. No person was allowed to become a 
 State Senator who did not have a freehold in the Common- 
 wealth of 300 at least, or a minimum personal estate of 
 6oo. Only men having a freehold estate in Massachusetts 
 of an annual income of 3, or any estate of the value of 60, 
 could vote for a State senator. 10 To be eligible for election 
 to the Massachusetts House of Representatives, the candidate 
 had to possess a freehold of the value of 100 in his town, 
 or any rateable estate of the value of 200." No man could 
 be seated as governor unless he had a freehold in the Common- 
 wealth of the value of 1,000, and declared himself of the 
 Christian religion. 12 
 
 The two most prominent advocates of this constitution in 
 the Massachusetts convention were Elbridge Gerry and Na- 
 thaniel Gorham, both conspicuous members of the subsequent 
 Federal Convention which framed the Constitution of the 
 
 8 " Journal of The Massachusetts Convention. 1779-1780," p. 193. 
 8 Ibid., 232. Ibid., 231. " Ibid., 234. lz /&/</., 235.
 
 86 HISTORY OF THE SUPREME COURT 
 
 United States, and one of whom, Gorham (as will be de- 
 scribed), manipulated the Massachusetts legislature to grant 
 him and Oliver Phelps an enormous area of land comprising 
 many millions of acres (over which Massachusetts had juris- 
 diction) in New York State. 13 
 
 These are significant examples of qualifying constitutional 
 enactments adopted in some of the States during the period 
 of the Revolution. In other colonies, particularly the slave- 
 holding regions where the populace was less active than in 
 the North, the demands of the upper class could be formu- 
 lated more openly. The Maryland Bill of Rights, adopted 
 November 3, 1776, stated that " the elections ought to be free 
 and frequent," and that every man having property in, a com- 
 mon interest with, and an attachment to, the community, ought 
 to have the right of suffrage." 14 
 
 The Constitution of Maryland, adopted five days later, re- 
 stricted the right to vote for members of the House of Dele- 
 gates to only free men, having a freehold of fifty acres of land 
 in their county, and to all free men having property above 
 30 current money. 15 Candidates for the House of Delegates 
 were required to have in the State real or personal property 
 of more than 500 current money. 16 Fifteen State Senators 
 were to be elected every five years by a body of electors 
 " men of wisdom, experience and virtue." 17 To be elected a 
 State Senator, the possession in the State of real and per- 
 sonal property more than the value of 1,000 current money 
 was required. 18 The Council to the Governor, it was further 
 provided, was to be elected by the Legislature, and was to be 
 
 13 See details later in this chapter. 
 
 14 " The Laws of Maryland From The End of The Year 1790," etc.. 
 Vol. Ill : p. v. 
 
 15 Ibid., xi. 
 
 16 Ibid. 
 
 17 Ibid., xiv. _ Here we see a precedent later followed by the " Fa- 
 thers " in providing for indirect election of President and Vice-Presi^ 
 dent. 
 
 18 Ibid.
 
 THE REAL FORCES OF THE REVOLUTION 87 
 
 composed of- only such selections as had a freehold of lands 
 and tenements of more than 1,000 current money. 10 No man 
 could be chosen for the Continental Congress unless he pos- 
 sessed the same extent of estate; and all candidates for gov- 
 ernor were excluded except those having, in the State real 
 and personal property of more than 5,000 value, current 
 money, of which estate at least 1,000 was required to be in 
 freehold. 20 These qualifications held fast for thirty-three 
 years after the Declaration of Independence. 
 
 On July 2, 1776, two days before the adoption of the Dec- 
 laration of Independence (or, according to some authorities, 
 on the very day of its adoption), the Provincial Congress of 
 New Jersey enacted, among other requirements, that no man 
 could vote unless he was " worth 50 proclamation money, 
 clear estate within the colony." 21 This law continued in force 
 for more than half a century after the adoption of the Declara- 
 tion of Independence. The old Rhode Island act of 1762, 
 making necessary the possession of 40 to become a qualified 
 voter, remained in force for more than eighty years. The 
 New York Constitution of 1777 also hedged in the right to 
 vote with strong property qualifications which were not abol- 
 ished until fifty-six years after the Declaration of Independ- 
 ence. The Constitution of all the other colonies contained 
 similar provisions. In South Carolina the elector had to pos- 
 sess fifty acres of land ; in Connecticut he had to have a certain 
 income, and in Massachusetts an income of 3 sterling, or a 
 capital of 60. 
 
 As late as 1792, the drafters of the New Hampshire Con- 
 stitution, well cognizant of its value for popular effect, inserted 
 in the Constitution of that State adopted in that year the 
 appealing philosophic generality : 
 
 " Section II. All men have certain natural, essential and 
 
 Ibid., xv. 
 
 20 Ibid., xvi. 
 
 21 1 Laws of New -Jersey, p. 4.
 
 88 HISTORY OF THE SUPREME COURT 
 
 inherent rights, among which are the enjoyment and defend- 
 ing life and liberty, acquiring, possessing and protecting prop- 
 erty ; in a word, of seeking and obtaining happiness." 22 This 
 was an abstraction, and was intended to be. In the succeed- 
 ing clauses, property qualifications were embodied, debarring 
 from the electorate all who lacked property. A member of 
 the New Hampshire lower house had to have an estate within 
 his district of the value of 100, one-half of which was to be 
 a freehold in his own right, and he had to be of the Protestant 
 religion ; a State Senator was required to own an estate of 
 200 in the State, and to be a Protestant; no man could be 
 governor unless he possessed an estate of ^500. He, too, had 
 to be of the Prote*stant faith. 23 
 
 Old Conditions Maintained. 
 
 The Revolution gradually brought about certain reforms, 
 such as the abolition of entail and primogeniture by which 
 estates could no longer be bequeathed exclusively to the eldest 
 son, and it compelled the recognition of certain principles of 
 democracy. But these reforms did not alter the condition of 
 the workers ; what they really did was to allow the widest 
 latitude to the matured or embryo native capitalists, giving 
 them a free hand for the unfettered development of their 
 plans. The iron laws designed to shackle the working class 
 continued, or were supplemented by others equally rigid. Im- 
 prisonment for debt continued inexorably in some States for 
 half a century more, and other like or worse conditions ob- 
 tained. 
 
 In the very city in which the Declaration of Independence 
 was drawn up, convicts were long regularly imported, and 
 sold like slaves. Of this, the first Congress of the United 
 
 22 " Constitution and Laws of the State of New Hampshire," etc. 
 (Edition of 1805), p. i. 
 23 Ibid., pp. 8-10.
 
 THE REAL FORCES OF THE REVOLUTION 89 
 
 States was forced to complain; and on March 27, 1789, the 
 Pennsylvania Legislature passed an act declaring: 
 
 " Whereas, it has been represented to the House by the 
 U. S. in Congress assembled, that a practice prevails of im- 
 porting felons convict into this State under various pretences, 
 which said felons convict so imported, have been sold and 
 dispersed among the people of this State, whereby much in- 
 jury has arisen to the morals of some, and others have been 
 greatly endangered in their lives and property ; for remedy 
 thereof," and the act went on to decree a penalty of three 
 months' imprisonment and 50 fine, in addition to costs of 
 prosecution for any captain or master who violated the act by 
 importing convicts. 24 
 
 In the following year, on April 5, 1790, the Pennsylvania 
 Legislature passed an act to "reform" the Penal Laws of 
 that State. The preamble beneficently stated that " it is hoped 
 that the addition of unremitted solitude to laborious employ- 
 ment, as far as it can be effected, will contribute as much to 
 reform as to deter." 25 For robbery, burglary, sodomy and 
 certain other crimes, all of the lands, tenements, goods and 
 chattels of the criminal were to be forfeited, and he was to 
 serve ten years in prison at hard labor. This was a grimly 
 humorous statute; virtually none of those convicted had any 
 lands, tenements, etc. Anyone convicted of stealing goods 
 to the value of twenty shillings or more, was subject to a sen- 
 tence of not more than three years at hard labor, and for 
 the theft of goods under twenty shillings one year at hard 
 labor. 
 
 Section XIII prescribed in detail how the convicts were to be 
 treated. They were to be clothed in uniforms of the coarsest 
 material ; the males were to have their heads and beards close 
 shaven at least once a week, and to be sustained upon bread, 
 
 2 * Carey and Bioren's " Pa. Laws," Vol. Ill : 344-347. 
 25 Ibid., 441. The solitary cell, it should be noted, was, as a general 
 institution, exclusively an American invention.
 
 9O HISTORY OF THE SUPREME COURT 
 
 Indian meal, " or other inferior food." The labor was to be 
 " of the hardest and most servile kind." An allowance of 
 five per cent, to the keeper of the prison on articles made by 
 the convicts was permitted. But this gratuity clause was re- 
 pealed by act of April 18, 1795. If the convict, according to 
 the act of 1790, committed any infraction of the rules, he 
 was to get repeated whippings, not exceeding thirteen lashes 
 at a time, or he was to be disciplined by a six days' close con- 
 finement in cell or dungeon, on bread and water. 26 
 
 In addition to the great estates of Tories, manorial lords, 
 sinectirists and others who had remained loyal to King George 
 confiscated by States during the Revolution, there were 
 vested in the United States Government at about the time of 
 its organization, a vast area of public lands estimated at 513,- 
 200,000 acres, some ceded by States, other areas acquired by 
 treaty. What became of the best portions of these, and who 
 got them, and how, we shall presently narrate. Ample land 
 for all there certainly was ; but no provision was made for dis- 
 tribution to the poor. The influential politicians, comprising 
 many of the esteemed " Fathers of th^ Country/' vip^ with 
 one_another, or banded together. ta-secuceL-.enprmous joniains 
 for their personal profit; how well they succeeded the records 
 
 reveal. 
 
 The particular provisions that were made for the poor may 
 be seen, for instance, in an act passed by the New Hampshire 
 legislature, February 15, 1791 (and it was but a type of the 
 acts passed in other States), " for the punishment of idle and 
 disorderly persons, for the support and maintainance of the 
 poor," etc. It established more houses of correction " for 
 the keeping and correcting of rogues, vagabonds, common 
 beggars, lewd, idle and disorderly persons, and in which to 
 employ the poor." If no such institutions existed in any 
 
 26 Carey and Bioren's " Pa. Laws," Vol. Ill : 440-454. The administer- 
 ing of lashings was repealed by the act of 1795, but the close confine- 
 ment in dungeons on bread and water was continued. Ibid., Vol. V: 
 
 121.
 
 THE REAL FORCES OF THE REVOLUTION 9! 
 
 community, prisons could be used. Punishment was not to 
 exceed hard labor, or wearing fetters and shackles during 
 confinement, or whipping to the number of thirty-nine stripes. 
 Among others specified, rogues, vagabonds, stubborn servants 
 or children, persons using " subtle craft," and common night 
 walkers could be incarcerated. 
 
 Overseers were also empowered to bind out by contract 
 for a year's term the poor and the idle ; the wages were to be 
 paid to the overseers, who were to apply them to the main- 
 tenance of the person, family or children concerned. But 
 poor children could be bound out till of age males until 
 they were twenty-one years old, and girls, until eighteen. 27 
 It was by means of such acts that the factory capitalists ob- 
 tained their constant and cheap supply of woman and child 
 labor. 
 
 Inquiry Into Reasons and Causes. 
 
 Meanwhile, during the Revolution and the drafting of the 
 Constitution, what were the actual acts of the majority of 
 the signers of the Declaration of Independence, and of those 
 who drew up the Constitution? These were the functionaries 
 who were among the most active and influential in the differ- 
 ent colonies. They were, many of them, officials of the Con- 
 tinental Government, and later held the highest posts in the 
 State or Federal Governments. While acts were being passed 
 disqualifying, dispossessing and imprisoning the poor, what 
 were the interests and motives animating those great digni- 
 taries of the Revolution ? Were they the heroic, incorruptible 
 patriots it has been the fashion to represent them? Some, 
 like Jefferson, no doubt were actuated by the highest, and 
 .for the age, most democratic, principles. But what of the 
 majority? 
 
 In these painful questions lie most vital answers which 
 
 27 " Constitution and Laws Of The State of New Hampshire/' etc. 
 (Edition of 1805), pp. 299-301,
 
 92 HISTORY OF THE SUPREME COURT 
 
 will show the economic interests behind the successive actions 
 of most of the men who made the Constitution of the United 
 States, and will throw the most vivid light upon the future 
 construction and career of the Supreme Court of the United 
 States. This exposition will reveal the special reasons why 
 it was that certain clauses, of the most tremendous impor- 
 tance, were inserted in the Constitution. No longer does it 
 satisfy authentic historical inquiry to assert grandiloquently 
 that acts and instruments have resulted from disinterested 
 altruism. Men and women are the products of environment, 
 and are, when grouped into classes, swayed by the varying 
 interests from which they benefit, or the aims from which 
 benefit is expected. What were the particular material in- 
 terests of most of the leaders of the Revolution, and those 
 of the drafters of the Constitution of the United States? 
 
 Whatever pretensions they assumed in public, for the awe 
 and wonderment of the populace, and for the better molding 
 of the mass to their ends, they, it must be said to their credit, 
 made no pretense in the candor of their private circle. None 
 would be more astonished than they, if, by some miracle, 
 they could wake from the dead and read the effusive eulogies 
 since published of their careers, attributing to them nothing 
 but excess of virtue and motives superior to those impelling 
 ordinary mortals. 
 
 They were human, all of them, and proved it so to their 
 own gratification. Nor did they profess to pose as humani- 
 tarians, engrossed in promoting the good of the whole human 
 race. Their acts revealed that the special interests they- were 
 furthering were those of a particular class, and that class 
 their own. Many of them left the fullest evidences in the 
 real annals that they were not so inactive as to allow splendid 
 opportunities for self -enrichment to pass ignored. During 
 the Revolution and afterwards, they and other notabilities took 
 instant advantage of their power, their inside knowledge of 
 affairs, and the stress of the times to accomplish schemes in-
 
 THE REAL FORCES OF THE REVOLUTION 93 
 
 volving the most extensive land jobbing, and the procurement 
 of other self -beneficial legislative acts. The Revolution was 
 as excellent a cover for the successful carrying out of these 
 enterprises, as was the Civil War, nearly a century later, 
 when the most colossal frauds and thefts were consummated. 
 Among those participating in this jobbery during, and after, 
 the Revolution were several who became distinguished Jus- 
 tices of the Supreme Court of the United States. But even 
 more: 
 
 Between the large and ambitious projects and schemes then 
 accomplished or imitated, and the subsequent character and 
 decisions of the Supreme Court of the United States, there 
 lay a connection and sequence of the very gravest signifi- 
 cance. 
 
 Absentee Landlords Covertly Retain Control. 
 
 One of the long-standing grievances of bona-fide settlers 
 or those of that intention, was not only a grievance arising 
 from the excessive and highly-centralized monopolization of 
 accessible land. The blighting evils of absentee landlord 
 ownership had also implanted deep popular hatreds and bitter- 
 ness. Immense tracts of land in New York, Pennsylvania, 
 Virginia, the Carolinas and other sections were held wholly 
 or partly by British lords, or by companies composed of titled 
 nobles and native personages. One of these powerful Brit- 
 ish companies for instance, was the Principio Company, em- 
 bracing a number of British lords and Maryland and Virginia 
 manorial lords. In this company " a certain Mr. Washington, 
 a subject of the State of Virginia," had an undivided one- 
 twelfth interest 28 but whether it was the original and im : 
 mortal George, the Maryland act of 1781 does not say. There 
 were also many other companies, with some of which we shall 
 have to deal anon. The property of the British and native 
 
 28 " Laws of Maryland, 1682-1784," Vol. I, Chap. 23.
 
 94 HISTORY OF THE SUPREME COURT 
 
 Tories was confiscated by general legislative acts during the 
 Revolution, the acts, however, reserving to patriotic share- 
 holders their rights. 
 
 But the confiscatory laws were often fraudulently evaded, 
 and their force was later stealthily diminished by legislative 
 enactment. " By our laws," wrote Jefferson, in 1781 -178,2, 
 referring to Virginia, 29 " the same as the English in this 
 respect, no alien can hold lands, 30 nor alien enemy maintain an 
 action for money or other moveable things. Lands acquired 
 or held by aliens become forfeited to the State; and, on an 
 action by an alien enemy to recover money or other moveable 
 property, the defendant may plead that he is an alien enemy. 
 . . . By our separation from Great Britain, British subjects 
 became aliens, and, being at war, they were alien enemies. 
 Their lands were, of course, forfeited, and their debts irre- 
 coverable. The assembly, however, passed laws at various 
 times, for saving their property. They first sequestered their 
 lands, slaves and other property on their farms in the hands of 
 commissioners, who were mostly the confidential friends or 
 agents of the owners, and directed their clear profits to be 
 paid into the treasury." Jefferson further says that monies so 
 turned were declared to be the property of the British subject, 
 and if used by the State were to be repaid. 
 
 Of the great manorial estates, however, on which the native 
 landgraves lived, many continued intact. The Livingstons, 
 the Schuylers, the Van Cortlandts, the Van Rensselaers and 
 others in New York, the Carrolls in Maryland and land mag- 
 nates elsewhere not only discreetly espoused the Revolution- 
 ary cause, but were signers of the Declaration of Independ- 
 ence, members of the Federal Constitutional Convention and 
 of the various State Constitutional Conventions. In this 
 
 29 Jefferson's "Notes on The State of Virginia" (Edition of 1803), 
 
 pp. 211-212. 
 
 30 The astonishing connection between this fact and the operations 
 of a certain Chief Justice of the Supreme Court of the United States 
 is explained fully later in this work.
 
 THE REAL FORCES OF THE REVOLUTION 93 
 
 group were to be found the leading spirits of a party plan- 
 ning surreptitiously, and sometimes almost openly, for the es- 
 tablishment of a monarchy. In the " Secret Debates," the 
 speech of Luther Martin, a delegate from Maryland to the 
 Federal Constitutional Convention, is given in full, in which 
 speech he told of a powerful secret party favoring the es- 
 tablishment of a monarchical form of government. Begin- 
 ning in 1776, a change was introduced in the laws by which 
 the old aristocratic power of entailing the estate to the eldest 
 son was gradually abolished. In that year, on motion of Jef- 
 ferson, it was effaced in Virginia, and was suppressed in New 
 York in I786. 31 Subsequently, in the next five decades the 
 practice was abolished in Georgia and North Carolina, and in 
 the newer States, Kentucky, Tennessee and Missouri. In the 
 original States of Vermont and South Carolina, and in Loui- 
 siana and other States later formed, the principal of entail was 
 never in statute. The reason for the abolition of the entail, 
 according to Chancellor Kent, was that it tended " to favor 
 the free circulation of property." 
 
 It was the abolition of the entail that introduced an ele- 
 ment of disintegration in the individual holdings of great es- 
 tates; where formerly the dimensions of the estates were pre- 
 served and usually enlarged from generation to generation, 
 the paternal property now was to be equally divided among 
 his children, but only so in case the will did not specifically 
 declare otherwise. The father still was endowed by law 
 with a large power of disposing of his property by testament 
 as he pleased. 
 
 But the manorial lords were not immediately dislodged. 
 For half a century many of the old seignorial landed families 
 remained potent political and social factors by reason of their 
 ancient wealth, and by stimulation from the new acquisitions 
 of land and the added wealth that they obtained from .various 
 projects during, and after, the Revolution. Added to them 
 
 31 Revised Statutes, Vol. Ill : Appendix, p. 48.
 
 O/5 HISTORY OF THE SUPREME COURT 
 
 there came forward a new self-created division of the landed 
 class, often cohering in schemes with them, and sometimes 
 separate. This new class was composed of certain leaders of 
 the Revolution and other powerful politicians and rich mer- 
 chants or adventurers who contrived to get vast areas of the 
 public domain, and valuable banking, canal, turnpike and other 
 privileges. These two sections formed the newer landed class 
 which was the paramount class at the time of the organization 
 of the Supreme Court of the United States, and for fifty years 
 thereafter. 
 
 Creation of the Newer Landed Class. 
 
 The creation by law of a new division of the all-powerful 
 landed class went on steadily during the critical years of the 
 Revolution. These newer landholders became vested with 
 large areas of what had been public land ; and the time came 
 when they and their successors in practice shared, and then 
 outranked, in importance the manorial lords. 
 
 Although apparently disconnected, some of the facts given 
 here are chronologically detailed for the important bearing 
 that they have. They show the methods employed by the 
 newer section of the landed class, and exhibit the plans and 
 interests of many of the men who, in 1787, drafted the Consti- 
 tution of the United States and those of the class represented 
 by those delegates. Furthermore, in order to reveal what 
 the drafters of the Constitution were meditating and what 
 they were secretly preparing for at the very time they were 
 creating that document, it has seemed advisable here to de- 
 scribe the ultimate result of some of the land-grasping 
 schemes, even although in point of time, some of them overlap 
 the date of the adoption of the Constitution. Finally, these 
 facts in detail and in mass have their relation to the subse- 
 quent course of the United States Supreme Court. It may 
 be said that only a few instructive examples of the widespread 
 appropriation of the soil by a few, are given here.
 
 THE REAL FORCES OF THE REVOLUTION 97 
 
 The Revolution proved to be an auspicious time for the 
 consummation of the boldest plans in acquiring property and 
 power. Richard Henderson, a Virginian, had professed to 
 buy, in Kentucky, a tract from the Cherokee Indians. With 
 Henderson was associated some of the most noted politicians 
 in Virginia. The pretended purchase was declared void on 
 the ground of forgery. In October, 1778, an act was rolled 
 through the Virginia Legislature, reciting that Richard Hen- 
 derson and Company had " at great expense " made a pur- 
 chase from the Cherokee Indians, and, " although the same 
 has been declared void, yet this Commonwealth is likely to 
 gain great advantages therefrom by increasing its inhabitants 
 and establishing a barrier against the Indians." It was, 
 therefore, enacted that Richard Henderson and Company 
 should be vested with a grant of 100,000 acres in fee on the 
 Ohio and Green rivers. 32 
 
 When the United States Government, many years later, was 
 making the treaty of Hopewell with the Cherokees, that tribe 
 claimed a considerable area of Kentucky. To the astonish- 
 ment of the Cherokees, the United States Commissioners pro- 
 duced what purported to be the original Indian deed convey- 
 ing the land in that district to Henderson. Tassell, one of 
 the Indian delegates, asserted that the signature of Ocones- 
 toto to the deed was a forgery ; that Henderson had asked for 
 only a small tract of land on the Kentucky River on which to 
 feed his horses. Informed that all parties to the deed were 
 dead, that the land had been sold by the company to settlers, 
 and that the deed must stand, Tassell replied that they would 
 let Kentucky go, but that he was sorry Henderson was dead ; 
 he " would like to have told him that he was a liar." 33 
 
 The Virginia act of May, 1779, confirmed, as we have seen, 
 the extensive grant of 200,000 acres to George Washington 
 
 32 " Revised Code, Laws of Va." (Edition of 1819), Appendix II : 353- 
 354. At one time Kentucky, Ohio and other present States were part 
 of Virginia. 
 
 33 " American State Papers : Indian Affairs," Vol. 1 : 42.
 
 98 HISTORY OF THE SUPREME COURT 
 
 and other military officers, Savage's grant of 28,627 acres, 
 and other large grants ; revealing that Washington knew both 
 the art of war and that of convincing legislatures, and that 
 he could manage both at the same time. Large grants, by 
 official legislative favor, abounded in Virginia, and especially 
 in Kentucky and what were at that time other parts of Vir- 
 ginia, then being newly opened to settlenfent. Speculators 
 and companies of speculators rushed forward to appropriate 
 the best areas of land, and to anticipate the settlers, who 
 were then put under necessity of buying from them. Benja- 
 min Borden had one tract of 92,000 acres in one body, on the 
 waters of the James River, and he also owned large tracts on 
 the Catawba River, and in other States. 34 On December 15, 
 1772, the Virginia Legislature granted to George Muse, Adam 
 Stephen and five other persons, 51,302 acres on the Ohio 
 River ; the next year these men divided it among themselves. 33 
 George Clymer, of Pennsylvania, one of the delegates to the 
 Federal Constitutional Convention, in 1787, secured, with two 
 associates, on May 30, 1784, a survey for a tract of 11,000 acres 
 in Jefferson County, Kentucky. He waited twenty-two years, 
 until Kentucky was filling with settlers, and then secured a 
 patent from Governor Greenup, 30 thus avoiding all payment 
 of taxes in the meantime. Clymer's share of the land was 
 one-third ; he never saw Kentucky ; as a non-resident he was 
 an example of the large absentee landlord element then ap- 
 propriating the public domain. 
 
 Judges Make Grants to Themselves. 
 
 The judges of Virginia Courts usurped power in granting 
 lands, and granted great tracts to themselves. Winthrop 
 
 34 See case of Harvey and wife vs. Borden, Washington's Va. Re- 
 ports, Vol. II: 156 (1795). 
 
 35 Case of Hepburn vs. Auld, Cranch's Reports, Supreme Court of 
 the United States, Vol. V : 264. 
 
 30 Case of Lessee of George Clymer ct al. vs. Dawkins, Howard's 
 Reports, Supreme Court of the U. S., Vol. Ill : 675.
 
 THE REAL FORCES OF THE REVOLUTION 99 
 
 Sargent, Governor of the Northwest Territory, wrote from 
 Vincennes, July 31, 1790, to President Washington detailing 
 the gross frauds in seizing land, and the long continuing for- 
 gery of deeds. 
 
 " A court of civil and criminal jurisdiction," he continued, 
 " established at this place by J. Todd, Esq., under the au- 
 thority of Virginia, in June 1779, and who eked out their ex- 
 istence to the summer of 1787, have, during that long period, 
 contrived to make large grants of land, even by their own 
 acknowledgements, and without more authority for doing so 
 than is set forth in No. 9 [a document submitted]. Many of 
 these concessions which have been exhibited to me, they deny 
 to have any knowledge of ; and indeed, there are some reasons 
 to conclude they may have been forged in the office of Mr. 
 LeGrand, before mentioned, who was a servant of the court, 
 and in whose handwriting the deeds have all been made 
 out." 37 
 
 Considering Governor Winthrop Sargent's activities at that 
 time in the fraudulent operations of the Ohio Company of 
 which he was one of the principal promoters and owners (see 
 later in this chapter), the question fairly arises as to whether 
 Sargent and his associates had designs themselves upon that 
 portion of the Northwest Territory. But so far as his 
 charges against the judges were concerned, they were fully 
 borne out by the statement of a successor. In a communica- 
 tion from Vincennes, dated January 19, 1802, addressed to 
 James Madison, Secretary of State, and laid before Congress 
 by President Jefferson in a message, on February 18, 1802, 
 General William Henry Harrison, as Governor of the North- 
 s'' " American State Papers : Public Lands," Vol. 1 : 10. (Doc. No. 4.) 
 Were Sargent's exposures intended to divert attention from what his 
 own appointees were doing? Thus, Judge Vanderburgh, appointed a 
 United States Commissioner for the disposition of lands, by Gov. 
 Sargent, held the conveyances to him of thirty-four distinct claims, 
 embracing a large area of land, which he had got while occupying that 
 post. Later, Vanderburgh surreptitiously obtained a confirmation of 
 these claims from General John Gibson, Secretary of Indiana Territory. 
 Ibid., Vol. VII : 698. (Doc. No. 1333.)
 
 IOO HISTORY OF THE SUPREME COURT 
 
 west Territory, confirmed these charges of judicial land 
 frauds. 
 
 " The circumstances," he reported, " mentioned in this let- 
 ter I have considered of sufficient importance to be communi- 
 cated to the President. The court established at this place 
 under the authority of the state of Virginia in the year 1780 
 (as I have before done myself the honor to inform you) as- 
 sumed to themselves the right of granting lands to every 
 applicant. Having exercised this power for some time with- 
 out opposition, they began to conclude that their right over 
 the land was supreme. 
 
 " Accordingly, an arrangement was made by which the 
 whole country to which the Indian title was supposed to be 
 extinguished was divided among the members of the court, 
 and orders to that effect entered upon their journals, each 
 member absenting himself from the court on the day that 
 the order was to be made in his favor, so that it might appear 
 to be an act of his fellows only. The tract thus disposed of 
 extends on the Wabash 24 leagues from La Pointe Coupee to 
 the mouth of the White river, and forty leagues into the 
 country west and 30 east from the Wabash, excluding only 
 the land immediately around the town, which had before been 
 granted to the amount of 20,000 or 30,000 acres." 38 Hun- 
 dreds of thousands of acres were thus seized by the judges, 
 sold to the speculators, and resold to settlers. 
 
 Important as are the details of these fraudulent methods, 
 even more important is the fact here brought out, of the 
 usurpation of power by the courts, and the additional fact 
 that because the other courts and the officials passively acqui- 
 esced, therefore, it was held as ceasing to be usurped and be- 
 coming a recognized power of the court. These practices, 
 as will be seen in the following chapters, had momentous 
 
 38 " American State Papers: Public Lands," Vol. I: 123. The North- 
 west Territory was formed by ordinance of Congress in 1787. It com- 
 prised the present States of Ohio, Indiana, Illinois, Michigan, Wisconsin 
 and Minnesota east of the Mississippi. Slavery was prohibited in it.
 
 THE REAL FORCES OF THE REVOLUTION IOI 
 
 results both in the Constitutional Convention and in the claims 
 later made by the Supreme Court of having the inherent 
 power to set aside laws as unconstitutional. And what was 
 subsequently accomplished under that doctrine of acquies- 
 cence will be clearly seen as we proceed. 
 
 In the light of these frauds, the Virginia act of 1799, di- 
 rected at fraudulent obtaining of land warrants, was too 
 evidently farcical except in its application to the uninfluen- 
 tial. It declared that he or she be adjudged a felon, without 
 benefit of clergy, who should steal or otherwise purloin any 
 land warrant, or who should alter and erase any warrant, or 
 forge or counterfeit any official seal. 39 The practice was 
 probably fairly widespread to call forth this act ; but many 
 of the very judges expected to enforce it were fraudulently 
 acquiring great bodies of land. It was customary for grantees 
 to assume a far larger area than their grants allowed a 
 practice later validated, as we shall see, by a notable decision 
 of Chief Justice Marshall. 40 
 
 On December 10, 1785, the Virginia Legislature granted to 
 Martin Pickett one grant for 55,390 acres, and another for 
 44,470 acres of land in Kentucky ; altogether, Pickett received 
 a gift of 99,860 acres in Scott County, Kentucky. Eight 
 years later Pickett deeded the patents to William and John 
 Bryant, who conveyed them to James B. Clarke of New York 
 City. 41 Charles Willing of the Willing family of Philadel- 
 phia, who were associated in trade with Robert Morris, ob- 
 tained 32,000 acres of land in Kentucky, on treasury warrants 
 issued in 1784, but claimants under him later unsuccessfully 
 had to contest title to a portion of the grant with United 
 States Senator Humphrey Marshall, a cousin of Chief Justice 
 John Marshall. 42 On December 27, 1786, the Virginian author- 
 
 39 " Rev. Code of Va." (Edition of 1819), Appendix II : 375. 
 
 40 See later, Case of Taylor vs. Brown, Cranch's Reports, Supreme 
 Court of the U. S., Vol. V: 235. 
 
 41 Case of Lessee of Clark et al. vs. Courtney et al., Peters' Re- 
 ports, Supreme Court of the United States, Vol. V: 319-357. 
 
 *- Case of Lewis et al. vs. Marshall et al., V Peters, 470. See later.
 
 IO2 HISTORY OF THE SUPREME COURT 
 
 ities gave a present to Phillip Barbour of 50,000 acres in Ken- 
 tucky; Barbour sold some and deeded the remainder to 
 Joshua Barney, who, in 1812, conveyed the land to John 
 Oliver. 43 It was in evidence that neither Barney nor Oliver 
 had ever been within the limits of Kentucky until many years 
 after, some three months before an ejectment suit was 
 brought, when Barney visited Kentucky. The papers in all 
 these actions, and others, abound in charges of fraud, some 
 of which were rejected, many more sustained. 
 
 In Georgia, likewise, large areas were presented to a few 
 individuals. In 1786, one Webb, with others formed a land 
 company, and agreed to buy not more than 200,000 acres of 
 land on joint account from the State of Georgia. The com- 
 pany received grants from the State of 165,000 acres in all. 
 Webb, for 400, thereupon transferred his interest to John 
 McQueen, who assigned it to Pendleton, apparently at about 
 the very time Pendleton was elected a delegate from Georgia 
 to the Federal Constitutional Convention. He never took his 
 seat, however. Of Pendleton's connection -with the great 
 Georgia land grants, approximating 35,000,000 acres, ob- 
 tained by bribery in 1795, details are given in Chapter IV of 
 this work. Wambursie, as the agent for Webb's (later Pen- 
 dleton's) land company of 1786, sold 60,000 acres for $51,- 
 ooo cash, to Holland capitalists. Out of this transaction ex- 
 tended litigation developed. The final ruling by the Supreme 
 Court of the United States, in the case of Pendleton and 
 Webb against Wambursie ct al., in 1807, was in favor of Pen- 
 dleton and Webb. (IV Cranch's Reports, 73.) 
 
 The Way Prepared for Huge Land Seizures. 
 
 Under the guise of its being a measure for the benefit of 
 settlers, the Pennsylvania Legislature, on November 27, 1779, 
 
 43 Case of Hawkins et al. vs. Barney's Lessee, V Peters, 457-469. 
 Hawkins' lessee claimed some of the same land under a Virginia patent 
 also.
 
 THE REAL FORCES OF THE REVOLUTION IO3 
 
 passed an act for the purchase by the State of the lands and 
 rights of the Penn family. The act referred to the rapid 
 progress of neighboring States in locating and settling lands 
 and how " multitudes of inhabitants are daily locating from 
 this State." This monopolization of land, the act said, no 
 longer was consistent with " the safety, liberty and happiness 
 of the good people of this commonwealth, who, at the expense 
 of much blood and treasure, have rescued themselves." The 
 Legislature declared, therewith, that the soil of the whole grant 
 was vested in the Commonwealth. Quit rents were abolished, 
 and the former powers of the Proprietors were repealed. As 
 compensation to the heirs of Thomas and Richard Penn, the 
 late Proprietaries, an appropriation of 130,000 was al- 
 lowed. 44 This large payment to the Penns was popularly con- 
 sidered as no better than rank jobbery. 
 
 Further laws followed. The act of April 10, 1781, ordered 
 the selling of certain State property, " for the better support 
 of the public credit." The act of March 12, 1783, decreed the 
 sale of lands in the vicinity of Pittsburg, and along the Ohio 
 and Allegheny rivers " for the purpose of redeeming, and 
 paying off certificates of depreciation given to the officers and 
 soldiers of the Pennsylvania line," and also to apportion lands 
 among officers and soldiers. 45 
 
 By the act of April i, 1784, the powers of the Land Office, 
 established by act of 1781, were extended, and all lands bought 
 from the Indians were to be sold at the rate of 10 for every 
 100 acres, with the usual granting, surveying and patenting 
 fees, and the rate of all lands west of the Alleghanies was 
 fixed at three pounds, ten shillings for every 100 acres. 46 No 
 one person was allowed to receive a grant of more than 400 
 acres. Another act followed in 1788 which lowered the price 
 
 44 Carey and Bioren's " Pa. Laws," Vol. II : 230-231. Expressed in 
 American currency, the amount was about $580,000. 
 
 Ibid., 398. 
 
 40 Ibid., 490-494. The purchase price for lands was reduced by act 
 of April 3, 1792.
 
 104 HISTORY OF THE SUPREME COURT 
 
 of lands in Northumberland and Luzerne counties to 20 per 
 hundred acres. 47 
 
 These laws, ostensibly enacted to conciliate the popular 
 clamor for land, seemed most excellently conceived. But they 
 were really designed, as we shall note at length, for the ben- 
 efit of a powerful clique of land speculators among whom 
 were some of the notable " Fathers " of the country, as alsr 
 some of the distinguished patriots who drafted the Constitu- 
 tion of the United States, and at least one future Justice of 
 the Supreme Court of the United States. 
 
 At the head of this clique were Robert Morris and Gouv.- 
 erneur Morris, both exceedingly influential in the Continental 
 Government, in the Pennsylvania Legislature and in the Fed- 
 eral Constitutional Convention. These two Morrises were in 
 no way related by blood. Gouverneur Morris belonged to the 
 landed aristocracy of New York; his family owned a large 
 estate, and ranked socially with the Livingstons, the Van 
 Rensselaers, the Schuylers and other conspicuous landed fam- 
 ilies. The estate inherited by Gouverneur Morris lay princi- 
 pally in the district later called Morrisania, now a part of New 
 York City, and was acquired by his ancestors. His grand- 
 father was that Chief Justice Lewis Morris who, as we have 
 noted in Chapter I, was tried for sitting in his own cause. 
 His father was, for many years, Chief Justice of the Admi- 
 rality Court. From 1781 to 1785 Gouverneur Morris was As- 
 sistant Minister of Finance under Robert Morris; and during 
 that time, at the close of the Revolution, the two Morrises 
 formed a commercial partnership in the East India and China 
 trade. 
 
 The Comptroller-General of Pennsylvania was John Nich- 
 olson who shortly afterward became one of Robert Morris' 
 partners in gigantic land transactions, and against whom im- 
 peachment proceedings were brought in I794. 48 Another 
 
 47 Carey and Bioren's " Pa. Laws," Vol. Ill : 285. 
 
 48 See Chapter IV of this work for the full facts.
 
 THE REAL FORCES OF THE REVOLUTION IO5 
 
 powerful politician concerned was James Wilson, one of the 
 most active men in the Federal Constitutional Convention, 
 and one of the first Justices of the United States Supreme 
 Court to be appointed by Washington. The full operations 
 of these and other notables are hereafter described in detail : 
 how they and other politicians fraudulently bought up, at ten 
 per cent, of their value, the military land certificates given as 
 pay or bounties to the Revolutionary soldiers; and how by 
 means of these, or by grants which they themselves, as mem- 
 bers of Congress or legislatures, put through, or by bribery, 
 secured enormous areas of public domain. 
 
 Robert Morris, Patriot and Financier. 
 
 Robert Morris, " the distinguished Financier of the Revolu- 
 tion," had begun his career in the counting room of Charles 
 Willing, then the leading merchant of Philadelphia and en- 
 gaged in the West India trade. Subsequently, Morris became 
 a member of the firm of Willing and Morris, and, says a 
 chronicler, they " employed an incredible number of ships." 4a 
 This is an example of Morris' trading operations : 
 
 In 1783 William Alexander (later Lord Sterling) and Jon- 
 athan Williams made a certain contract with the Farmers 
 General of France a group of monopolists by royal favor 
 oppressing the people of France to an intense degree, it may 
 be explained, and thus helping to precipitate the French Revo- 
 lution. By this contract Alexander and Williams were to 
 supply the Farmers General with shipments of tobacco. The 
 next year, in 1784, Robert Morris was taken in as a partner; 
 he made a new contract with the Farmers General, calling for 
 the delivery of 60,000 hogsheads of tobacco for the years 
 1785, 1786, and 1787. Litigation, arising from disagreements 
 over the profits, later developed between the partners. 50 
 
 49 Frost's " Lives of American Merchants," 59. 
 
 50 Case of Alexander vs. Morris and others, Call's Reports (Va. 
 Court of Appeals), Vol. Ill : 87.
 
 IO6 HISTORY OF THE SUPREME COURT 
 
 At about the same time Robert Morris became the owner 
 of an extensive tract of land in what is now West Virginia. 
 This tract had been granted by Virginia on an order of survey, 
 June 12, 1770, to Albert Gallatin (later United States Secre- 
 tary of Treasury). The survey, however, must have been 
 assigned to Robert Morris, for whom Gallatin might have been 
 acting; the patent was made out to Morris on February 10, 
 1786. The land covered by the patent seems to have been 
 several hundred thousand acres. Nine years later, Morris 
 assigned it to his partner, Thomas Willing. This Willing was 
 the first president of the Bank of the United States, in the 
 establishment of which monopoly Robert Morris and Alex- 
 ander Hamilton were the prime movers. The tract was then 
 turned over to the North American Land Company one of 
 Morris' land corporations and during the succeeding de- 
 cades part of it was the subject of litigation. 51 
 
 Hamilton's Business and Family Relations. 
 
 Between Alexander Hamilton, John Jay and Robert Mor- 
 ris, were the closest business relations, and even more inti- 
 mate connections between Jay and Hamilton. These two 
 Hamilton and Jay were among the strongest factors in 
 bringing about the adoption of the Constitution ; Hamilton in 
 the Federal Constitutional Convention and Jay in New York. 
 Jay was the son-in-law of William Livingston, a grandson of 
 that Robert Livingston the origin of whose fortune we have 
 described in Chapter I. William Livingston was a member 
 of the Federal Constitutional Convention. Hamilton was 
 married to Elizabeth Schuyler, daughter of General Phillip 
 Schuyler. In addition to the great estates that the original 
 Schuyler had secured by bribing Governor Fletcher, two of 
 his descendants, David and his son Peter, had in May, 1754, 
 bought of the Mohawk Indians a tract of 43,000 acres of 
 
 51 See Case of Armstrong vs. Morrill, Wallace's Reports, Supreme 
 Court of the United States, Vol. XIV: 121,
 
 THE REAL FORCES OF THE REVOLUTION IQJ 
 
 land on the west side of Lake Canjadarage. 52 Inasmuch as 
 the law expressly prohibited grants of more than a thousand 
 acres to any individual, this large grant must have been ob- 
 tained by the same fraudulent methods (narrated in Chap- 
 ter I) by which Lieutenant-Governor Clarke and Sir William 
 Johnson got their grants. David and Peter Schuyler also 
 owned lands in Canajoharie, in Albany, in New York City 
 and in the colonies of Rensselaerwyck and Surinam, New 
 York. 53 General Phillip Schuyler continued to add to his es- 
 tate. On July 20, 1772, he bought Cosby 's manor, at Albany, 
 sold by the sheriff of Albany for arrears of quit rent. 54 
 
 A few years before the Revolution, John B. Church, fav- 
 ored by a rich uncle, came to America, and during the Rev- 
 olution became an army contractor in commissary supplies in 
 partnership with Jeremiah Wadsworth, and got rich. At the 
 same time General Phillip Schuyler was in charge of the 
 commissary department of the Continental army in the north. 
 " Their business relations," we are told, " led to a close ac- 
 quaintance ; " Church married one of Schuyler's daughters, 
 thus becoming Hamilton's brother-in-law. 55 Subsequently, 
 
 52 Schuyler's " Colonial New York," Vol. 1 : 470. 
 
 63 Ibid. 
 
 54 See Case of Bradstreet vs. Huntington, Peters' Reports, Supreme 
 Court of the United States, Vol. V : 403. 
 
 65 Monroe's " Pioneer History of the Phelps and Gorham Purchase " 
 (Edition of 1851), p. 496. Sabine says that avarice and rapacity were 
 common during the Revolution. "Indeed," he goes on, "the stock- 
 jobbing, the extortion, the low arts and devices to amass wealth that 
 were practiced during the struggle are almost incredible. . . . Sol- 
 diers were stripped of their miserable pittance, that contractors for 
 the army might become rich in a single campaign. Many of the sellers 
 of merchandise monopolized articles of the first necessity, and would 
 not part with them to their suffering countrymen, and to the wives and 
 children of those who were absent in the field, unless at enormous 
 profits." At the same time these contractors also carried on traffic 
 with the royal troops. This traffic, Sabine relates, " was immense. 
 Men of all descriptions finally engaged in it, and those who at the 
 beginning of the war would have shuddered at the idea of any con- 
 nection with the enemy, pursued it with avidity. . . ." " Loyalists of 
 the American Revolution," Vol. 1 : 141-142. Sabine's prefatory histor- 
 ical essay to his work is searching, but by no means unfriendly to the 
 American Revolution.
 
 IO8 HISTORY OF THE SUPREME COURT 
 
 John B. Church, disgusted with the republican form of gov- 
 ernment adopted, went to England, ran for Parliament, and 
 lived there until 1797. Hamilton was his permanent agent. 
 Church's son, Philip, studied law with his uncle, Alexander 
 Hamilton, and also in the office of Edmund Pendleton, and 
 became Hamilton's private secretary. 56 
 
 Hamilton Advances Money to Morris. 
 
 So close was the business association between Robert Mor- 
 ris, John Jay (first Chief Justice of the Supreme Court of 
 the United States) and Alexander Hamilton, that according 
 to Whitelock, in a laudatory biography of Jay : " At a private 
 meeting, Hamilton and Robert Morris recommended buying 
 new lands; Jay, on the other hand, advocated suburban prop- 
 erty. By their respective purchases, the first lost money, the 
 second was ruined, while the third realized a profit." 5T 
 
 This scant outline comes very far from doing justice to 
 the extraordinarily large land ownership and speculations of 
 the trio, particularly of Morris. Was there a secret compact 
 or understanding between them? Whitelock intimates it, but 
 does.^not say so. As a matter of fact, Morris extended his 
 land' operations to such an inordinate degree that at one time, 
 at the close of the eighteenth century, he held the ownership 
 of not less than 6,000,000 acres of land in the State of New 
 York, Pennsylvania, the City of Washington and other parts 
 of the country. 
 
 " General Hamilton," says Monroe, " as the agenl of John 
 B. Church, had in his absence, loaned to Robert Morris $80,- 
 ooo, and taken a mortgage on Morris Square, Philadelphia ; 
 the lien being afterwards transferred to 100,000 acres of land 
 on Morris' reserve in the present county of Alleghany. In 
 1800 this mortgage was foreclosed, the land was sold at Can- 
 
 50 " Pioneer History of the Phelps and Gorham Purchase," 496. 
 57 Whitelock's " Life and Times of John Jay," p. 338.
 
 THE REAL FORCES OF THE REVOLUTION IOO, 
 
 andaigua . . . and bid in by Phillip Church for his father." 58 
 This statement of Monroe's regarding Morris's conveyances of 
 land to John B. Church and others is consistent with Justice 
 Washington's statement of the case in 1812 in one of the 
 many suits arising later from Morris' land transactions. 69 
 Robert Morris also, as will be related later, had the closest 
 business associations with Daniel Carroll (another delegate 
 to the Constitutional Convention) in vast speculations in City 
 of Washington real estate when the site of the National Cap- 
 itol was selected. Robert Morris likewise was bound in bus- 
 iness affairs with Oliver Phelps and Nathaniel Gorham of 
 Massachusetts, the latter of whom was an active delegate in 
 the Federal Constitutional Convention, and who (to repeat) 
 was, with Elbridge Gerry and a few others, the most aggres- 
 sive and potent influence in securing the adoption by Massa- 
 chusetts of the Constitution of the United States. 
 
 Livingston Cheats the Indians. 
 
 What was called the Phelps and Gorham purchase formed 
 one of the great scandals of the time, and was one of the 
 factors creating the popular unrest and agitation, then styled 
 insurrection. 
 
 To evade the provisions of the New York State Constitu- 
 tion forbidding the purchase in fee by individuals of the lands 
 of the Indians, a corporation called the New York Genesee 
 Land Company was formed. -It was composed of eighty or 
 ninety men, " many of whom were wealthy and influential ; " 
 one of the most prominent managers and directors was John 
 Livingston, of Livingston Manor. 60 In 1787 the company ob- 
 tained leases, to endure for the full period of 999 years, of 
 nearly all of the lands of the Six Nations of the Indians, in 
 
 68 " Pioneer History of the Phelps and Gorham Purchase," 447. 
 
 59 See Fitzsimmons and others vs. Ogden and others, Cranch's Re- 
 ports, Supreme Court of the United States, Vol. VII: 2. 
 
 00 Monroe's " Pioneer History of the Phelps and Gorham Purchase," 
 106.
 
 IIO HISTORY OF THE SUPREME COURT 
 
 New York, for an annual rent of two thousand Spanish milled 
 dollars, and a definitely stated promise of a bonus of $20,- 
 ooo. 61 To put the Indian chiefs in the desired happy state 
 of mind to induce them to sign, Livingston had sent out four- 
 teen sleighs loaded with goods, particularly with rum, into the 
 Indian country. 
 
 When the circumstances of this transaction became known 
 to the white public, and its provisions clear to the Indians 
 themselves, a tremendous uproar resulted. The Six Nations 
 accused Livingston of having cheated them. 62 Governor 
 Clinton sent runners to all of the Six Nations warning them 
 of the fraud practiced upon them; and under a special act 
 that popular agitation forced through the Legislature, he 
 called out the militia to expel the Lessees as the members 
 of the Company were called. Clinton, in behalf of the State, 
 then opened negotiations with the Indians for the purchase of 
 the land, to be set aside as a " Military Tract "- that is, land 
 to be reserved and to be exchanged for the military certifi- 
 cates allotted to the Continental soldiers. 
 
 At the negotiations at Fort Schuyler Clinton was personally 
 present; and when it appeared that the agents of the Lessees 
 had corrupted or deceived Kirkland, the gospel minister 
 among the Indians, and had debauched the Indians with " fire- 
 water," Governor Clinton ordered John Livingston, in writ- 
 ing, to leave within three hours and retire to a distance of 
 forty miles. 03 At this council, Monroe says, Clinton made an 
 exhaustive investigation. " It- exposed a connected scheme 
 of bribery, threats, intimidation, and deception practised upon 
 
 01 Monroe's " Pioneer History," etc., 106. 
 
 2 Ibid. 
 
 03 Ibid., iio-in. But Clinton was -by no means the high-minded 
 public official he professed. See details in Chapter IV of a scandalous 
 transaction of great magnitude for which he, Aaron Burr and other 
 officials were responsible. And Clinton's nephew and political protege 
 and successor, De Witt Clinton (as we shall later note), drew up and 
 pushed through the Legislature the charter of the American Fur Com- 
 pany under cover of which John Jacob Astor debauched and swindled 
 the Indians on a great scale.
 
 THE REAL FORCES OF THE REVOLUTION III 
 
 the Indians." 64 Treaties were concluded by Clinton with the 
 various tribes by which for a small money consideration and 
 slight annuities one thousand dollars in land, and five hun- 
 dred dollars annuity forever, in the case of Onondagas the 
 State of New York obtained the principal area of territory at 
 present included in the counties of Cayuga, Onondaga, Sen- 
 eca, Tompkins, Courtland, and parts of Oswego and Wayne. 
 
 The Phelps and Gorham Purchase. 
 
 At this point the Phelps and Gorham purchase developed. 
 During the Revolution, Oliver Phelps had been in constant 
 touch through business transactions with Robert Morris. All 
 of that area in New York State, now embraced in the coun- 
 ties of Chautauqua, Cattaraugus, Erie and Niagara, and a 
 large portion of the present counties of Allegany, Genesee 
 and Orleans, were claimed by Massachusetts as within its 
 jurisdiction under the old Plymouth Charter. By a treaty 
 adopted in 1786 between New York and Massachusetts, the 
 jurisdiction of the territory in question was ceded to New 
 York, which, in turn, ceded to Massachusetts the right of 
 buying the preemption rights to the soil from the Indians. 
 
 Phelps and Gorham organized a company; and, on April i, 
 1788, secured the passage of an act by the Massachusetts Leg- 
 islature granting them all rights of purchase to certain of the 
 lands the preemption rights of which had been ceded by New 
 York. 05 The stipulated price to be paid was one hundred 
 thousand dollars payable in the public paper of Massachu- 
 setts; the value of this currency was then only fifty cents on 
 the dollar. But Phelps and Gorham immediately encountered 
 a most serious obstacle in the New York Genesee Land Com- 
 pany and its nine hundred and ninety-nine year leases. True, 
 both Massachusetts and New York had declared these leases 
 null and void. But the Lessees, headed by the Livingstons, 
 
 64 Ibid., 112. 
 
 65 " Massachusetts Special Laws, 1780-1805," Vol. I: 204.
 
 112 HISTORY OF THE SUPREME COURT 
 
 and backed by John Jay and other powerful relatives and 
 associates, were men of the greatest political and social in- 
 fluence; they had their members in the Legislature, on the 
 Bench, and in other high positions ; they were not to be trifled 
 with, or set aside, which fact they soon and most energetically 
 made known. The two companies came to an understanding; 
 Phelps held a meeting with some of the principal Lessees, and 
 made them stockholders in the Phelps and Gorham Company. 
 
 They Get 2,600,000 Acres. 
 
 This amiable compact arranged, the next step was a treaty 
 with the Seneca Indians at Kandesega now the city of 
 Geneva. The Lessees were represented by John Livingston; 
 Phelps acted for his company. By this treaty the Indians 
 ceded in one. deed alone a tract of at least 2,600,000 acres 
 in return for a promised payment of $10,000, and the pact 
 of an annuity of $500 forever. Evidently, Livingston and 
 his fellow Lessees were still making threats against the 
 Phelps and Gorham company, and demands upon it; Mon- 
 roe tells that another compromise was made with the Lessees, 
 stipulating the conveyance to them of four townships, " be- 
 sides as may be well inferred, paying their immediate agents 
 well for a forbearance in the work of mischief in which they 
 were so persevering." 66 
 
 In 1789, however, Phelps and Gorham found themselves 
 under the painful prospect of having to hand over the $100,- 
 ooo (which they had agreed to pay Massachusetts) in cur- 
 rency the value of which had greatly increased. When they 
 had signed the contract with Massachusetts, the paper of that 
 State, as we have said, was rated at only one half of its face 
 value. They had confidently expected to pay their obligations 
 in this depreciated currency. But after the adoption of the 
 Constitution of the United States, the value of that paper 
 
 66 " History of the Phelps and Gorham Purchase," 140.
 
 THE REAL FORCES OF THE REVOLUTION 113 
 
 went up to nearly par. What was to be done ? A very facile 
 way out of the difficulty was found; the Legislature gener- 
 ously released them from all obligations except what was in- 
 cluded in the particular Seneca Indian treaty which had given 
 them 2,600,000 acres of land. 
 
 At an Indian Council, held at Tioga, in November, 1790, 
 Red Jacket and Farmer's Brother, two Seneca Chiefs, made 
 pathetic speeches, saying that they had been confused and 
 cheated by Livingston, Phelps and their partners; that they 
 had received only $5,000 instead of $10,000 from Phelps. 
 " When we discovered the fraud," said Red Jacket, " we had 
 a mind to apply to Congress to see if the fraud could not be 
 rectified. For when we took the money and shared it, every 
 one knows that we had but one dollar apiece. All our lands 
 came to was the worth of a few hogsheads of tobacco . . . 
 so that when we returned home there was not a bright spot of 
 silver about us." 67 
 
 Monroe narrates that in these Indian treaties the use of brib- 
 ery and spirituous liquors was common, and the consequent 
 frauds on them often impelled the Indians " to the fields of 
 blood and slaughter or to the stealthy assault with the tom- 
 ahawk and scalping knife." Further, Monroe describes how 
 the Indians were pauperized to such an extent that they had 
 to eat their own horses. 
 
 But what of Phelps and Gorham? In 1795, Phelps "re- 
 garded himself as worth a million of dollars " and Gorham 
 was likewise a man of great wealth. These were not their 
 only land transactions; they even, in 1789, made a claim to 
 certain parts of the northwest corner of Pennsylvania, as 
 coming within the lines of their purchase, or conflicting with 
 them. 08 Phelps was, at the same time, a conspicuous political 
 leader in Congress. His land speculations became so vast, 
 
 07 Ibid., pp. 143-144. 
 
 08 See " American State Papers : Public Lands," Vol. 1 : 7-8. Peti- 
 tion of Phelps and Gorham, and Report of House Committee on Public 
 Lands recommending that the boundaries of the cession be ascertained.
 
 114 HISTORY OF THE SUPREME COURT 
 
 that he had to execute mortgages on his New York lands to 
 the State of Connecticut from which, in his reverses, he was 
 easily able to borrow money. 
 
 Morris Gets Four Million Acres in New York. 
 
 Of the preemption rights ceded by New York to Massachu- 
 setts there still remained several million acres which had not 
 been included in the sale to Phelps and Gorham. On March 
 5 and 8, 1791, the Massachusetts Legislature accommodatingly 
 sold the rights of preemption to these lands to Samuel Ogden, 
 who, two months later, on May II, 1791, assigned his con- 
 tract to Robert Morris. 89 Shortly afterward, Morris, then a 
 United States Senator from Pennsylvania, made a fraudulent 
 treaty with the Seneca Indians, similar to the treaties of Liv- 
 ingston and Phelps, but accompanied by an agreement more 
 favorable to the Senecas an agreement by which they were 
 to receive the payment of $100,000. By this treaty Morris 
 acquired more than 4,000,000 acres in New York west of the 
 Phelps and Gorham purchase. 
 
 Even, says Monroe, before he had extinguished, that is to 
 say bought, the rights from the Indians, Morris sold to a com- 
 pany called the Holland Company, more than a million acres 
 in what are now the counties of Niagara, Erie, Chatauqua, 
 and all of the present counties of Allegany, Wyoming, Gene- 
 see and Orleans. To himself Morris reserved a tract of about 
 five hundred thousand acres, these lands being between those 
 of Phelps and Gorham, and those conveyed to the Holland 
 Company. 71 But, according to Justice Bushrod Washington's 
 
 09 History of The Holland Company, N. Y. Assembly Doc. No. 224, 
 Assembly Documents, Vol. III. (1837.) 
 
 70 But was this $100,000 paid? It was not. By order of President 
 Washington, it was invested in the Bank of the United States, in the 
 name of the President, as trustee for the Indians. Of this bank, pro- 
 moted by Morris and largely founded by Hamilton, Morris' partner, 
 Thomas Willing, as we have noted, was the first president. 
 
 71 " Pioneer History of the Phelps and Gorham Purchase," 442.
 
 THE REAL FORCES OF THE REVOLUTION 1 15 
 
 \ . 
 
 statement in deciding the case of Fitzsimmons and others vs. 
 Ogden and others, in the Supreme Court of the United States, 
 February 4, 1812, Morris' purchases from the State of Massa- 
 chusetts in Ontario County (comprising a number of present 
 New York counties) " amounted to upwards of four million 
 acres " ; of this area, said Justice Washington, Morris, by 
 different deeds, conveyed to the Holland Company more than 
 three million acres. 72 It was part of his reserved tract that 
 Morris, through Alexander Hamilton, subsequently conveyed 
 to John B. Church and to Samuel Ogden, Sir William Pult- 
 eney and others. 
 
 John Jay's intimate friend, Herman Le Roy, presently came 
 into the transaction. 
 
 In the operations of the Holland Company there was to be 
 seen a typical example of the full effects of absentee land- 
 lordism, for which some of the most eminent members of 
 the Federal Constitutional Convention were responsible. The 
 more than three million acres that Morris deeded were con- 
 veyed on July 20, 1793, ostensibly to Herman Le Roy (the 
 same who obtained large areas that had been procured by 
 fraud as described in Chapter I), John Linclaen and Gerrit 
 Boon. But this conveyance was made to divert the attention 
 of the mass of American people ; the transfer was actually 
 made in trust for the use of Wilhelm Willinck and eleven 
 other Holland capitalists, who paid the purchase money. 73 
 The firm of Willinck and Van Strapporst were big bankers 
 at Amsterdam ; as the " bankers for the United States " in 
 Holland they did a lucrative business making profits out of 
 the Revolution, and later from the United States, by grace 
 of Robert Morris, and by that of Alexander Hamilton, as 
 Secretary of the Treasury. The Willincks later used these 
 profits in taking mortgages on many American transportation 
 
 72 VII Cranch, 2-22. Thomas Fitzsimmons, one of the plaintiffs in 
 this suit, was one of the Pennsylvania delegates in the Federal Con- 
 stitutional Convention. 
 
 73 N. Y. Assembly Doc. No. 224, 1837 : 1 3-
 
 Il6 HISTORY OF THE SUPREME COURT 
 
 lines. 74 Because of its being a company of Holland capitalists, 
 it called itself the Holland Company. 
 
 In order to give a clear idea of the interconnected inter- 
 ests of Le Roy, Jay, Hamilton, Morris, the Willincks and 
 other politicians and capitalists of the time, we shall at this 
 point again call attention to certain facts brought out in a let- 
 ter written by Jay from which communication extracts are 
 givert in Chapter V of this work. When he wrote that letter 
 Jay had not yet formally resigned as Chief Justice of the Su- 
 preme Court of the United States. In that particular letter 
 sent by Jay from London, in 1/94, to Nicholas Cruger, Hamil- 
 ton's patron, Jay informed Cruger that " a gentleman in Hol- 
 land " had sent him (Jay) a plan for making his fortune. 
 Jay sent the " golden " plan to Cruger, suggesting that Le Roy 
 and Bayard participate in it. This plan, it would appear, did 
 not deal with land, but with mercantile, operations ; Le Roy 
 and Bayard were among the largest shipping merchants in 
 New York; Hamilton was their attorney. 
 
 Here, for the present, we shall leave the Holland Company, 
 to recur later in this work to its operations: the manner in 
 which it secured fraudulent legislation, and in which it be- 
 came possessed of vast areas of land in Pennsylvania ; how 
 it swayed the courts and cheated States and settlers ; how its 
 fraudulent pretensions were validated by a remarkable de- 
 cision of the Supreme Court of the United States ; and finally 
 how, for half a century, it bled a hundred thousand settlers 
 causing great agitation, uprising and riots. 
 
 The purpose of this particular chapter is to give a sufficient 
 insight into the economic interests of the principal men who 
 drafted the Constitution of the United States, and those of 
 their associates and connections. Abundant as the facts here 
 related may seem, they are supplemented by as great and as 
 
 74 See, for example, the case, in 1843, of William Willinck, Jr., vs. 
 the Morris Canal and Banking Company, involving litigation growing 
 out of a loan of $750,000 N. J. Chancery Reports, Vol. Ill: 377.
 
 THE REAL FORCES OF THE REVOLUTION 117 
 
 indispensable an array in the' following pages, in which their 
 importance to the narrative of the Supreme Court of the 
 United States will be more evident. There it will be further 
 seen how Washington, Hamilton, James Wilson, Robert Mor- 
 ris, Gouverneur Morris, the Carrolls, Samuel Chase, John 
 Jay, Thomas Fitzsimmons, Thomas Mifflin and other notables 
 who either directly or indirectly caused the adoption of the 
 Constitution, and some of whom formed the first bench of 
 the. Supreme Court, were abetting or putting through great 
 fraudulent undertakings. 
 
 A succinct account, however, of one or two more notable 
 transactions begun during the very time that the Constitu- 
 tion was being formulated, will be appropriate at this point* 
 
 Revolutionary Veterans Defrauded. 
 
 At the beginning of the Revolution, the old Roman plan 
 used by Governor Dinwiddie in the French and Indian war 
 of giving land for military services, was taken up by the colo- 
 nies as a means of inducing recruits, and paying them for 
 their services. According to rank and service, each soldier 
 was entitled to a specified area of land. 
 
 Knowing the collective value of large assignments of these 
 military certificates, the speculators sent out their agents to 
 trade upon the pressing need of the soldiers for money, and 
 buy up these land warrants issued by the various colonies. 
 Congress, at the instance of Morris, Hamilton and others 
 passed an act providing for the assumption of State debts. 
 
 Of this fact the people at large were in ignorance for some 
 considerable time; there was only one post road extending 
 along the seacoast, and communication was slow. " But the 
 rich speculator, who was on the spot," explained Representa- 
 tive Bacon, in the debate on the judiciary system, in the House 
 of Representatives, on February 19, 1802, " by going into the 
 country where the people had been ignorant of what had been 
 done, purchased up their certificates the only reward they
 
 Il8 HISTORY OF THE SUPREME COURT 
 
 had received for their toil and wounds at about one-tenth 
 of their value. And it is possible that many of these pur- 
 chases may have been done with public money." 75 
 
 Jefferson says the same. " The accounts," he wrote, " of 
 the soldiers of Virginia and North Carolina, having been ex- 
 amined by the proper officers of government, the balances due 
 each individual ascertained, and a list of the balances made 
 out, this list became known to certain persons before the sol- 
 diers themselves had information of it, and these persons, 
 by unfair means, as is said, and for very inadequate considera- 
 tions, obtained assignments from many of the soldiers of what- 
 ever sum $hotild be due to them from the public, without 
 specifying the amount." 76 A law was enacted to protect the 
 soldiers but it was of no effect. 
 
 Jefferson's statements are borne out by the actual records. 
 Great numbers of military land warrants were bought by 
 speculators for paltry sums. To instance one example of 
 thousand of cases : 
 
 Waller, a veteran of the Revolution, had obtained warrants 
 for about 5,000 acres " which had been unfairly purchased 
 from him . . . for the trifling consideration of 20, at 
 a time when the testator was intoxicated with liquor, and in- 
 capable of contracting." The Chancellor of Virginia decided 
 that the fraud had been proved to his satisfaction, and gave 
 judgment for Waller's heir. The Virginia Court of Appeals 
 in sustaining the Chancellor's decision said that " a more pal- 
 pable imposition was never practised, or better established than 
 in this case." " Redress was awarded in this particular case, 
 but in large numbers of other cases the soldiers were abso- 
 lutely defrauded. In other instances and by no means a 
 small number assignments of military land warrants pur- 
 porting to have been conveyed by soldiers were forged. Pe- 
 tition after petition went into Congress, for more than thirty 
 
 76 " Abridgement of the Debates of Congress," Vol. II: 629. 
 70 "The Writings of Thomas Jefferson," Vol. V: 175. 
 " Washington's Virginia Reports, Vol. 1 : 164.
 
 THE REAL FORCES OF THE REVOLUTION I IQ 
 
 years after the Revolution, from veterans who asserted that 
 they had been defrauded or their names forged. 78 
 
 It was, to a very great extent, by means of these military 
 land certificates, thus obtained, that many of the most eminent 
 politicians secured large tracts of land. The raids began in 
 1787 when the Continental Congress and the Executive De- 
 partments were wholly under the control of the Livingstons, 
 the Carrolls, John Jay, Robert Morris and other Revolu- 
 tionary eminences. Begun in the very year in which the Con- 
 stitution was drafted, these schemes were projected and car- 
 ried out either by members of the Federal Constitutional Con- 
 vention, or by their associates. 
 
 Symmes, Dayton, Etc., Get a Slice of Ohio. 
 
 On October 15, 1788, by virtue of resolutions adopted in 
 July and October, 1787, the Board of Treasury contracted 
 with Judge John Cleves Symmes and Jonathan Dayton, of 
 New Jersey, and other associates, to grant them a tract of 
 1,000,000 acres in Ohio, the Government reserving five lots 
 out of each township. Dayton was a delegate to the Federal 
 Constitutional Convention from New Jersey, and was not 
 only a partner of Symmes, but also his agent; the city of 
 Dayton, Ohio, derives its name from him. Who the other 
 associates were the documents do not state. For this tract 
 Symmes and company agreed to pay the Government at the 
 rate of 66 2-3 cents an acre. 
 
 Of this specified amount they paid into the Treasury, be- 
 fore the ensealing of the contract, the sum of $82,198. This 
 was not paid in coin. One-seventh was paid in military land 
 warrants, and the remainder in Government securities 79 
 which had been bought speculatively at a heavy discount be- 
 
 78 See, "American State Papers: Public Lands," Vol. I: 17-18, no- 
 iii, 127, 597 and 911 ; Vol. II: 140-156, etc., etc. 
 
 79 "American State Papers: Public Lands," Vol. I: 104-106. (Doc. 
 No. 55.)
 
 I2O HISTORY OF THE SUPREME COURT 
 
 cause of their low price. The remainder of the sums due the 
 Government were to be paid as follows : The amount of 
 $82,198 within a month after the delivery of patents, and the 
 residue in six equal payments, with interest, payments ex- 
 tending through three years. It was agreed that one-seventh 
 of those payments could be made in military certificates, acre 
 for acre ; 80 to this extent Symmes and Dayton were accord- 
 ingly relieved from the necessity of having to pay in gold or 
 silver. The tract covenanted for embraced all that rich sec- 
 tion in the southern part of Ohio, now occupied by Cincin- 
 nati, Dayton, Hamilton and other cities and towns. 
 
 Sold the Site of Cincinnati Before They Had a Patent. 
 
 It appears that, extraordinarily favorable to them as was 
 this contract, Symmes and Dayton at once commenced fraudu- 
 lent operations. They were in collusion with Daniel Ludlow, 
 the Government Surveyor, 81 Governor St. Clair and other 
 officials. Although they received no patent from the Gov- 
 ernment until 1794, they began selling land in 1788. In the 
 case of The City of Cincinnati vs. The Lessee of White, 83 
 before the United States Supreme Court, in January, 1832, 
 Justice Thompson, in delivering the Court's opinion, stated 
 these facts : 
 
 " Before the issuing of the patent, however, and, as the 
 witnesses say, in the year 1788, Matthias Denman (of New 
 Jersey) purchased of Symmes a part of the tract included 
 
 80 Ibid. But Hamilton, as Secretary of the Treasury, made a settle- 
 ment with Symmes, Dayton, etc., by which they obtained an acre and a 
 half for every acre of military land warrants that they turned in. 
 
 81 Ibid., 128-130. Dayton, Ludlow, St. Clair and others, separately 
 and together, made extensive purchases of land in what is now the town 
 of Dayton and elsewhere. Ludlow became a rich landholder. See 
 case of Ludlow vs. Carpenter, Ohio Reports, Vol. XIII: 580; Chief 
 Justice Lane's statement of facts. For the facts revealing other great 
 land frauds accomplished under Governor St. Clair and with his con- 
 nivance, see later in this work. 
 
 &2 Peters' Reports, Supreme Court of the U. S., Vol. VI : 431-434.
 
 THE REAL FORCES OF THE REVOLUTION 121 
 
 in the patent, and embracing the land whereon Cincinnati now 
 stands. That, in the same year, Denman sold one-third of 
 his purchase to Israel Ludlow, and one-third to Robert Pat- 
 terson. These three persons, being equitable owners of the 
 land (no legal title having been granted) proceeded in Janu- 
 ary, 1789, to lay out the town. A plan was made and ap- 
 proved of all the proprietors," etc. 83 
 
 Justice Thompson's statement went on to say that in March, 
 1795, Denman conveyed his interest, which was only an 
 equitable interest, to Joel Williams, and that, on February 
 14, 1800, Symmes conveyed in fee to Williams certain lands 
 described in the deed, some of which lands Williams con- 
 veyed to John Daily. Williams was a tavern-keeper ; and, 
 it may be parenthetically remarked, it was from him, in ex- 
 change for some secondhand copper stills, that Nicholas 
 Longworth obtained thirty-three acres now in the heart of 
 Cincinnati, thus laying the foundation of the immense Long- 
 worth fortune of to-day, a fortune in which Alice Roosevelt 
 Longworth, a daughter of Theodore Roosevelt, shares by 
 marriage with the present Nicholas Longworth. 
 
 The Government Cheated. 
 
 To return to Symmes: On April n, 1792,' he, Dayton and 
 his associates petitioned Congress that the advanced price 
 of public securities rendered impossible the strict fulfillment 
 of the contract, and asked for a modification and more favor- 
 able terms. 
 
 Congress was compliant ; many of its members held interest 
 in the Symmes grant. In fact, Dayton, as a member of the 
 House of Representatives, not only presented the petition, but 
 he, Treadwell, and Nicholas Oilman (the last-named was one 
 of the four delegates to the Federal Constitutional Conven- 
 tion of 1787 from New Hampshire) were appointed on April 
 
 ss ibid., 433.
 
 122 HISTORY OF THE SUPREME COURT 
 
 23, 1792, a House Committee to prepare and bring in a bill 
 granting certain lands to Symmes, which bill was reported as 
 passed. 84 This law, enacted on May 5, 1792, authorized Presi- 
 dent Washington to grant to the company in fee simple: 
 
 i. As much lands as had been paid for (under the Symmes 
 contract of October 15, 1788) at the rate of 66 2-3 cents an 
 acre. 2. Another tract of 106,850 acres, provided it was paid 
 for in six months in military bounty certificates. 3. A town- 
 ship of six miles square to contain 23,040 acres and to be 
 held in trust for the use of an academy. In conformity with 
 this act, Washington, on September 30, 1794, gave Symmes 
 and company a patent for 311,682 acres of land along the 
 Ohio, and the Great Miami and Little Miami rivers, reserving 
 five lots in each township, and one complete township of six 
 miles square (to be located in about the center of the tract) 
 for use of an academy. 85 But Symmes and Dayton fraudu- 
 lently sold part of this reserved township to various individ- 
 uals, causing a prolonged scandal. 88 
 
 Land Companies Swindle Settlers. 
 
 At the same time, in 1787, when Symmes, D.iyton and as- 
 sociates had made their first move, other land companies ob- 
 tained great grants of land. On October 29, 1787, Manasseh 
 Cutler, Winthrop Sargent, and associates, composing the Ohio 
 Company, made an agreement with William Duer and asso- 
 ciates, by which in return for a tract of 100,000 seres of 
 
 84 " History of Congress, March 4, 1789, to March 7, 1793,'' etc., p. 
 425. See details in Chapter IV of this present work as to the bribery 
 of members of Congress in another land-grasping scheme. 
 
 85 " American State Papers : Public Lands," Vol. 1 : 104-106. Later 
 reports say 248,540 acres. 
 
 86 Ibid., 105. See also Report of House Committee on Public Lands, 
 March 21, 1836, reciting the full circumstances, and reporting in part : 
 " Symmes failed to execute the trust thus reposed in him, and the 
 object of the conveyance of said township [was] entirely defeated." 
 The report was called forth by the application of the Woodward High 
 School, of Cincinnati, for a grant of land. Ibid., Vol. VIII : 561. ^.Doc. 
 No. 1478.)
 
 THE REAL FORCES OF THE REVOLUTION 123 
 
 land, Duer and company were to allow Cutler, Sargent and 
 company to have a share in the profit from the sales to Eu- 
 ropean capitalists and immigrants of their lands ; and, for the 
 purpose of aiding the sale, a company called the Scioto was 
 formed, to which the lands were conveyed. 
 
 By the act of April 21, 1792, the President was authorized 
 to issue to the Ohio Company of Associates patents for 750,- 
 ooo acres of land ; in addition, several other tracts within 
 certain described boundaries in Ohio, were included. The 
 same act also authorized the President to issue to the Ohio 
 Company patents for an additional area of 214,285 acres, for 
 which the company was required to pay in six months in 
 " warrants issued for army bounty rights " ; and a further 
 quantity of 100,000 acres was to be patented to the Ohio Com- 
 pany in certain prescribed conditions. 
 
 It appears conclusive that Symmes, Dayton, Cutler, Sargent, 
 Duer and associates in the various companies carried on the 
 most extensive swindles. Notwithstanding the fact that the 
 Symmes-Dayton company had paid for only a part of the 
 lands in the contract, and although Congress had modified 
 the contract in their favor, they insisted that they were en- 
 titled to the original quantity of a million acres and were not 
 bound to make any further payment until they received it. 
 Acting upon this pretense they sold large areas, not included 
 in their patent, to settlers. 87 When the Government later 
 offered this same land to the settlers at $2 per acre, the set- 
 tlers protested that they had already paid Symmes. And it 
 also seems that when Symmes sold them the lands, he de- 
 liberately so altered the contracts that he left their lands out 
 of the area patented to him. 88 The settlers were thus left 
 with bad titles, and found themselves in conflict with the Gov- 
 ernment which had come to their rescue. 
 
 The Scioto Company sold considerable of their Ohio land 
 
 87 " American State Papers : Public Lands," Vol. 1 : 106. 
 
 88 Ibid., 112. (Doc. No. 62.)
 
 124 HISTORY OF THE SUPREME COURT 
 
 to companies and individuals in France. The Ohio Company 
 and the Scioto fell to quarreling over the question as to which 
 held the title to the land sold to French settlers, at Galliopolis, 
 Ohio. The consequence of this fight for the spoils was that 
 the settlers found themselves with bad titles ; after paying 
 for their l^jjds they discovered that there was no legal bar 
 to their dispossession. In a pathetic petition to Congress, they 
 expressed their regret at not being able to prosecute the 
 " authors of their misery," and solicited a grant of land else- 
 where. Reporting on the whole transaction, on March 27, 
 1794, U. S. Attorney-General William Bradford concluded 
 by saying that if the settlers sued, each had to bring a separate 
 suit, and he spoke of the French settlers as " almost ex- 
 hausted by the many disappointments and difficulties which 
 they have had to struggle with for the space of three years." 89 
 
 Gallatin, Secretary of the Treasury, reported to Congress, 
 in 1812, that the amount of land actually sold to the Ohio 
 Company, in 1792, was 964,285 acres and the extent actually 
 patented to Symmes was 248,540 acres. 90 Altogether, 11,046 
 military land warrants had been issued, covering a total of 
 1,562,250 acres; and of these 11,046 warrants, reported 
 George Graham, Commissioner of the General Land Office, 
 " the number of warrants located and not patented, and those 
 surrendered by the Ohio Company and J. C. Symmes amounted 
 to 10,928 warrants for 1,528,950 acres of land." 91 It is thus 
 established that a large proportion of the military land war- 
 rants issued to the soldiers of the Revolution, came into the 
 possession of two cliques of politician speculators who, on 
 the strength of them, obtained nearly a million and a quarter 
 acres of some of the finest lands in Ohio, including the sites 
 of many present large cities. 
 
 The reader may be astonished that such enormities as these 
 were committed at the very beginning of the Government, but 
 
 89 " American State Papers : Public Lands, Vol. I, 29-30. 
 Ibid., Vol. II: 442. * Ibid., Vol. IV: 471.
 
 THE REAL FORCES OF THE REVOLUTION 125 
 
 we are simply giving the facts as they appear in the records. 
 
 Jonathan Dayton and His Speculations. 
 
 Even while officiating as Speaker of the House of Repre- 
 sentatives, Jonathan Dayton was industriously buying in, 
 through brokers, batches of military certificates. 
 
 Getting into a quarrel with his partners, the mercantile firm 
 of Lawrence, Dayton and Company of New York City, over 
 the profits of land warrants transactions, Dayton, joined by 
 Lawrence, sued Childs, another member of the firm. The suit 
 came up before Chancellor Livingston, in New York, in 1800. 
 Childs alleged that the speculation in land warrants was a 
 project and contrivance of Dayton while he was Speaker of the 
 House, and produced sixteen letters Dayton had written to him. 92 
 
 In one letter Dayton wrote to Childs that " a large company 
 is forming itself here, for the purchase of the United 
 States lands, and part of their capital is to be 2,000 military 
 land warrants. . . ." On January 27, 1796, Dayton 
 wrote, asking for the employment of some broker to inquire 
 as to the terms for the purchase of two hundred land warrants, 
 which, he had directly heard, were selling at $75 per hun- 
 dred acres. " Don't mention my name to the broker," Day- 
 ton warned Childs. The committee in Congress, Dayton 
 added, had reported a bill for the sale of lands, at $2 an acre, 
 in the Northwest Territory, and it had agreed to accept mili- 
 tary warrants. From time to time Dayton kept Childs fully 
 informed as to the legislation being brewed in Congress, and 
 he arranged with Childs for the purchase of army land war- 
 rants. Dayton concluded his letter of April 17, 1796, " The 
 contents of this letter are of such a nature as to render it 
 improper to be seen by any except yourself; burn it, there- 
 fore, when you have perused it." There were many other such 
 
 92 These letters are to be found in full in John Wood's " Suppressed 
 History of the Administration of John Adams (From 1797 to 1801). 
 As Printed and Suppressed in 1802, And Republished in 1846."
 
 126 HISTORY OF THE SUPREME COURT 
 
 letters. 83 Dayton later withdrew his suit against Childs, pay- 
 ing full costs. 
 
 In a single month, March, 1800, Dayton secured in his 
 own name 15,553 acres of land in exchange for five military 
 land warrants, and Nicholas Oilman was likewise getting land 
 for military certificates. 94 
 
 Evidently John Wood did not exaggerate when he wrote, 
 in 1802, that Dayton, the late speaker of Congress " is no- 
 torious from Boston to Georgia. The deeds of other members 
 of Congress were scarcely known beyond the circle of their 
 respective States, but the speculations of this man have rung 
 through the western world." 5 
 
 But Dayton's actions were far from being exceptional ; that 
 he was chosen speaker is a sufficient commentary upon the 
 character of the majority electing him. The Senate also was 
 ruled by such men as Robert Morris, Charles Carroll, Oliver 
 Ellsworth, James Gunn, Gallatin, Sedgwick, Hillhouse and 
 others who had voted for Hamilton's refunding plan after 
 some had themselves made considerable purchases in the cer- 
 tificates of the Revolutionary army. 
 
 Nearly all of these men were at the same time manipulating 
 State Legislatures to grant them great areas of land, bank 
 charters, and charters for canal, bridge and turnpike com- 
 panies. Thus, Charles Carroll was one of the incorporators 
 of the " Proprietors of the Susequehanna Canal " chartered 
 with a capital of 18,500 (current money of Maryland), in 
 1784, by the Maryland Legislature. 96 Gallatin had got a large 
 area of land in Virginia; Morris was becoming a colossal 
 landholder, and of the corrupt land transactions of Gunn and 
 others we shall have more to say hereafter. 
 
 03 " Suppressed History of the Administration of John Adams," 152^ 
 158. 
 
 94 "American State Papers: Public Lands," Vol. I: 118. (Report of 
 Joseph Nourse, Register of the Treasury Department.) 
 
 95 " Suppressed History of the Administration of John Adams," etc., 
 145. 
 
 06 " Laws of Maryland, 1682-1784," Vol. I, Chap. 23.
 
 THE REAL FORCES OF THE REVOLUTION 127 
 
 ^ 
 
 Protests Against Land Grabbing. 
 
 The origin of the huge grants made to Symmes, Dayton, 
 and the Ohio Company and all of their associates, both open 
 and in the background, dated, as we have said, from 1787. 
 The protest against giving millions of acres of the public 
 domain to an unprincipled band of speculators soon, but im- 
 potently, made itself heard in Congress. The spoliation going 
 on could not be deterred by mere protests. 
 
 In the debates in May, 1789, on Western lands, and the es- 
 tablishment of a Land Office, Representative Scott advanced 
 the principle that the land ought to be sold in small quanti- 
 ties. " There are at this moment," he said, on May 28, 1789, 
 " a great number of people on the ground who are willing 
 to acquire by purchase a right to the land they are seated 
 on." In Kentucky, hundreds of thousands of acres had been 
 already granted to a few absentee landlords. Kentucky was 
 full, said Scott ; at least there were no more valuable lands 
 to be got there with a clear title, and, therefore, no more settlers 
 could be received. "They hope," went on Scott, referring to 
 the settlers, " to get them [the lands] upon as good terms as 
 they can procure them of the speculators. What will these 
 men think who have placed themselves upon a vacant spot 
 anxiously awaiting its disposition by the Government, to find 
 their preemption rights engrossed by the purchaser of a mil- 
 lion acres? Will they expose themselves to be preyed upon 
 by these men ? " Seven thousand souls, Representative Scott 
 continued, were there waiting for lands ; troops sent under 
 General Harmer had driven out these squatting settlers, had 
 burnt their cabins and had torn up their potato patches ; but 
 three hours after the troops had gone, the people returned, re- 
 paired the damage, and settled upon the land in defiance of the 
 Government. 97 On July 13, 1789, Scott pointed out that the 
 western territory (meaning east of Mississippi) could con- 
 
 07 " Abridgement of the Debates of Congress," Vol. 1 : 99-100.
 
 128 HISTORY OF THE SUPREME COURT 
 
 tain 2,000,000 farms, or at least 1,000,000, and that 6,000,000 
 people could live in comfort there. 08 
 
 Hamilton Plans Further Big Land Seizures.- 
 
 Popular protests, however, counted for nothing. The very 
 next year, on July 20, 1790, Alexander Hamilton, as Secretary 
 of the Treasury, submitted to Congress a plan for disposing of 
 the public lands. These lands were the enormous area owned 
 by the National Government. Part of the large areas orig- 
 inally owned by certain of the original States were still under 
 the complete jurisdiction of those States. Hamilton's plan 
 fully revealed the nature of further schemes under way on 
 the part of leading capitalist politicians to appropriate the 
 public domain, both that owned by the Federal Government 
 and that by the States. 
 
 " Purchasers," reported Hamilton, " may be contemplated 
 in three classes : moneyed individuals and companies, who will 
 buy to sell again ; associations of persons who intend to make 
 settlements themselves ; single persons, or families now resi- 
 dent in the Western country, or who may be emigrants thither 
 thereafter. The two first will be frequently blended, and will 
 always want considerable tracts. The last will generally pur- 
 chase in small quantities. Hence, a plan for the sale of the 
 Western lands, while it may have due regard to the last, should 
 be calculated to obtain all of the advantages which may be de- 
 rived from the first two classes. For this reason, it seems 
 requisite that the General Land Office should be established 
 at the seat of Government. It is there that the principal pur- 
 chasers, whether citizens or foreigners, can most easily find 
 proper agents, and that contracts for large purchases can be 
 best adjusted. . . ." 
 
 No actual settler, Hamilton recommended, should get more 
 than one hundred acres, and the price of land should be thirty 
 
 08 " Abridgement of the Debates of Congress," Vol. I: 113.
 
 THE REAL FORCES OF THE REVOLUTION I2Q 
 
 cents an acre to be paid either in gold, silver or public se- 
 curities. No credit should be allowed for any purchase of 
 less quantity than a township of ten miles square, nor more 
 than two years' credit for any greater quantity, and one quar- 
 ter of the consideration was to be paid down." Although the 
 points of this plan were not immediately and formally adopted, 
 yet its recommendations were practically, as we have seen, put 
 into speedy effect by Washington and his cabinet by force of 
 executive authority. 
 
 Constitutional Convention Held in Secrecy. 
 
 With an understanding of the facts, both retrospective and 
 anticipatory, herein presented, no explanation is needed as to 
 why it was that the Federal Constitutional Convention held 
 its deliberations and proceedings behind locked doors, as 
 TTtilher Martin, Attorney-General of Maryland and a delegate 
 to the Convention, indignantly reported to the Maryland Leg- 
 islature. No delegate, Martin wrote, was allowed to cor- 
 respond with his constituents; taking of notes was permitted 
 ~only by special consent; the utmost precautions were exer- 
 cised to prevent the~ debates and acts from reaching the pub- 
 EcT" 
 
 " So solicitous," wrote Martin, " were they that their pro- 
 ceedings should not transpire, that the members were pro- 
 hibited even from taking copies of resolutions, on which the 
 Convention was deliberating, or extracts from any of the 
 journals, without formally moving for, and obtaining per- 
 mission, by a vote of the convention for that purpose." 10 
 
 Here was the epochal spectacle of a Constitutional Con- 
 vention delegated in solemn meeting apparently to establish 
 a Republican democracy, yet not daring to trust the very 
 people for whom the Republic was theoretically founded with" 
 
 ""American State Papers: Public Lands," Vol. 1:8-9. (Doc. 
 No. 3.) 
 100 " Elliott's Debates," etc., Vol. 1 : 345.
 
 130 HISTORY OF THE SUPREME COURT 
 
 any knowledge of its proceedings. Not until long after were 
 the debates published. It was not that the delegates lacked 
 trust in the intelligence of the people ; they feared the results if 
 their betrayal of the popular demands should become known. 
 
 When they did become known, after the Federal Conven- 
 tion had adopted the Constitution, and before the different 
 States had taken action, there wa a blaze of popular anger. 
 The various eminent delegates whose handiwork it was has- 
 tened to exert every possible influence to bring about its 
 adoption by the State Conventions: Gorham and Gerry in 
 Massachusetts; Wilson, Robert Morris and McKean in Penn- 
 sylvania ; Washington in Virginia ; Daniel Carroll and Samuel 
 Chase in Maryland ; William Livingston and Jonathan Dayton 
 in New Jersey; and Livingston's son-in-law, John Jay, and 
 Alexander Hamilton in New York. In Delaware and Penn- 
 sylvania John Dickinson, a member of the Federal Constitu- 
 tional Convention, was energetic for the adoption of that in- 
 strument ; Dickinson had inherited the vast estate of " Crosia 
 dore," granted to Walter Dickinson in 1659; he had repre- 
 sented the Penn Proprietors and had obtained for them $580,- 
 ooo during the Revolution when their land was declared for- 
 feited; and he had been President of the Supreme Council 
 of Pennsylvania. In Connecticut Oliver Ellsworth argued 
 stoutly for the Constitution ; the presiding officer of the Con- 
 necticut Convention which ratified the Constitution was Mat- 
 thew Griswold, who had inherited a baronial estate in that col- 
 ony, and was a man of great wealth. But it is quite needless to 
 enumerate other examples. 
 
 In the Pennsylvania Convention Wilson appeared as the 
 principal defender of the Constitution; he admitted that the 
 popular view of that instrument was that it was designed to 
 perpetuate the powers of the aristocracy, and he devoted his 
 arguments to attempting to counteract that belief. What Wil- 
 son's share in the drafting of the Constitution of the United 
 states was, and the story of his performances leading up to the
 
 THE REAL FORCES OF THE REVOLUTION 13! 
 
 insertion of a particular clause advocated by him, is told in 
 the next chapter. 
 
 These men held constant secret conclaves, or corresponded 
 regularly ; they issued essays and publications filled with allur- 
 ing arguments to influence the public mind. During the pub- 
 lication of the " Federalist," the work so largely of Hamilton 
 and Jay, the workingmen of New York City showed their 
 feelings by a street demonstration. In trying with Hamil- 
 ton to quell it, Jay so exasperated his auditors that a stone 
 was hurled at him striking him on the head; he was left for 
 dead but recovered. 
 
 All the great power of the land magnates was used to avert 
 the threatened danger of the Constitution being rejected. The 
 Livingstons, Van Rennselaers and Schuylers in New York ; the 
 Carrolls the largest landowners in Maryland, and estimated 
 one of the very richest families in the country these, and 
 all the rest of the landed class combined to beat into line such 
 antagonistic dependents as there were of every stripe law- 
 yers, clergy, college professors, tradesmen, workers and news- 
 paper editors. 
 
 The banks controlled by Hamilton, Wilson, Robert Morris, 
 Gouverneur Morris and other delegates 10X exercised the most 
 effective influence upon tradesmen by the threat of with- 
 drawing credit or by harassing them should they fail to sup- 
 port the adoption of the Constitution. 102 
 
 Whom the Constitution Pleased. 
 
 These methods succeeded throughout the colonies. Writing 
 from New York to Livingston, January 14, 1788, as to the 
 
 101 The history of these banks is given in Chap. IV. 
 
 102 It should not be imagined that elections then were " pure and un- 
 defiled." Far from it. The buying of votes in New York was an old 
 story. And as far back as March n, 1752, the Legislature of Pennsyl- 
 vania had passed an act " for the prevention of bribery and corruption 
 in the election of Sheriffs and Coroners within this province." Carey 
 and Bioren's " Pa. Laws," Vol. 1 : 328.
 
 132 HISTORY OF THE SUPREME COURT 
 
 pending question of whether the Constitution was likely to be 
 adopted in Massachusetts, General Henry Knox wrote that 
 " the commercial part of the State, to which are added all the 
 men of considerable property, the clergy, the lawyers, including 
 all of the officers of the late army, and also all the neighborhood 
 of all the great towns " favored its adoption. " Perhaps," 
 added Knox, " many of them would have been still more 
 pleased with the new Constitution, had it been more analogous 
 to the British Constitution." 103 
 
 On the other hand, there were not lacking exponents of the 
 popular hostility; one of these, writing under the name of 
 " Brutus," expressed the opposing view. Pointing out that 
 " the farmer, merchant, mechanic and other various orders 
 of the people ought to be represented [in Congress] accord- 
 ing to their respective weight and numbers," he went on : 
 
 " According to the common course of human affairs, the 
 natural aristocracy of the country will be elected. Wealth al- 
 ways creates influence, and this is generally increased in large 
 family connections; this class in society will forever have a 
 great number of dependents; besides they will always favor 
 each other. It is to their interest to combine they will there- 
 fore constantly unite their efforts to procure men of their own 
 rank to be elected. . . . It is probable that few of the 
 merchants, and those of the most opulent and ambitious, will 
 have a representation from their body. . . . The great 
 body of the yeomen [the small farmers] of the country can- 
 not expect any of their order in this assembly. . . . The 
 mechanics of every branch must, expect to be excluded from 
 a seat in this body; . - . so that in reality there will be 
 no part of the people represented but the rich, even in that 
 branch of the Legislature called democratic. The well-born, 
 and highest orders in life, as they term themselves, will be 
 
 103 " Debates and Proceedings In The Convention of Massachusetts, 
 1788," etc., p. 399. Gen. Knox's wife, it may be said, had inherited a 
 large share of the great Waldo estate, in what is now the State of 
 Maine.
 
 THE REAL FORCES OF THE REVOLUTION 133 
 
 ignorant of the sentiments of the middling class," etc., etc. 
 The representation, continued the paper, " is merely nominal 
 a mere burlesque, and that no security is provided against cor- 
 ruption and undue influence." 104 
 
 Of the whole Constitution the people at large were suspicious 
 to a degree little comprehended now, ihey saw thatlTwas 
 the product of a convention composed mostly of manorial lords 
 or their attorneys and mouthpieces. They feared that the so- 
 called democratic representation in Congress would resolve 
 itself into a continuation of the old rule by the great land own- 
 ers and traders ; and that they were right events quickly proved. 
 
 F>ut wtiaFespecially aroused fears was the judiciary. Dur- 
 ing the Revolution only one of the royal judges in Massachu- 
 setts, for example, had espoused the popular cause, and this 
 particular one Cushing did not do so until he was vir- 
 tually compelled to give an expression of opinion ; he then be- 
 came one of the most stalwart and time-serving of the band of 
 reactionaries. During more than a century the judges had 
 acted arrogantly and often corruptly ; they had usurped powers 
 never granted to them, and had assumed the right to void laws 
 as much as they pleased. In the Revolutionary period some 
 judges were attacked by armed bodies of indignant patriots 
 outraged by the actions of those judicial reactionaries. The 
 people had long seen the landholders or their retainers put on 
 the bench; and then, by the expedient of irresponsible judicial 
 construction, those judges had validated titles obtained by fraud 
 and corruption. 
 
 The greatest popular bitterness manifested itself against the 
 courts. This feeling, grounded on the experience of centuries 
 of oppression, was not to be allayed by smooth explanations on 
 the part of the advocates of the Constitution. Of this popular 
 sentiment the makers of the Constitution were fully aware. 
 By adroitly dwelling upon the principle of representation in 
 Congress, and by arguing and counter-arguing about it, and 
 
 104 Essay III of " Brutus," Ibid., 389-391.
 
 134 HISTORY OF THE SUPREME COURT 
 
 emphasizing it, those advocates succeeded, to a considerable ex- 
 tent, in diverting the popular mind from the tremendous poten- 
 tial power that the Constitution had lodged in a small, omnipo- 
 tent body, appointed for life. This handful of judicial rulers 
 was the Supreme Court of the United States.
 
 CHAPTER IV 
 THE SUPREME COURT UNDER CHIEF-JUSTICE JOHN JAY 
 
 If the various elements dissatisfied with the Constitution 
 were led into attaching too much importance to the question of 
 representation in Congress, and too little to the immense poten- 
 tial consequence of the Federal judiciary, the powerful landed 
 class fully understood the supreme might of the courts. 
 
 As the superlative court of courts, the newly created Su- 
 preme Court of the United States was rightly anticipated by 
 the manorial lords as the chief instrument by which their inter- 
 ests would be conserved and enlarged. Holding an inherited 
 and expanding power, the accretion of centuries, and owning 
 vast estates, the land grandees did not purpose to surrender 
 either wealth or power. Their one guiding aim was to hold, 
 and extend, both. The import of such concessions as during 
 those threatening times had to be made to the populace was 
 cunningly magnified, but a considerable body of the artisans, 
 laborers and small farmers were by no means deceived. Gloss 
 and fine phrases aside, they saw with alarm that not only had 
 the essentials of the old conditions been retained, but that the 
 landholding families and traders were now exercising limitless 
 license in securing great new accumulations of property, and 
 securing the passage of whatever laws their interests and de- 
 signs required. 
 
 Danger to the Manorial Lords. 
 
 The Revolution had established the principle of resorting to 
 force to accomplish changes. With this " perilous " idea per- 
 meating the " lower orders," there was a considerable degree 
 
 135
 
 136 HISTORY OF THE SUPREME COURT 
 
 of probability that it might be repeatedly and formidably ap- 
 plied to strip the manorial landholders of their privileges and 
 possessions, and to abolish all the superstructure of prestige, 
 exclusiveness and caste. The workers were demanding the 
 abolition of barbaric laws, and the small farmers, located as 
 well as intending settlers, were uniting with artisans and labor- 
 ers in denouncing the great and continual land jobbing by 
 which powerful individuals, lauded as " statesmen," were ap- 
 propriating millions of acres of the best soil and the most 
 valuable resources. The tenants of the great manorial estates 
 were in a restless state, on the verge of resorting to force to 
 throw off the yoke riveted upon them by ancient laws. Above 
 all, subversive doctrines had been agitated ; no longer was there 
 a semblance of reverence felt for the aristocrats ; they were 
 looked upon as enemies, to be divested of power at the first 
 opportunity. Permeating what were stigmatized as the 
 " lower orders " of society, there was a revolutionary aspiration 
 for equality of opportunity and standing: that much the Revo- 
 lution had implanted. 
 
 It has been said that the great value of revolutions is that 
 at a blow they overcome all established conditions without hav- 
 ing to wait for the slow, cumbrous processes of a dragging 
 course of legislation, too often tricky and useless. But the 
 American Revolution was not a Revolution in the sense of the 
 transfer of power from one class to another. The class seiz- 
 ing hold of the reins after the American Revolution had been 
 won well knew that however that Revolution abolished certain 
 forms and details, it did not touch something of far more en- 
 during and incisive effect. 
 
 The pillar left untouched was the long line of privileges and 
 precedents established by a powerful feudal aristocracy and 
 maintained by the courts since the reign of Richard II of Eng- 
 land, and even before. These precedents had been established 
 for the twofold purpose of justifying the maraudings, thefts 
 and summary frauds by which the dukes, lords and barons hacj
 
 THE SUPREME COURT UNDER JOHN JAY 137 
 
 appropriated the British soil, and with the object of holding 
 the working class in complete subjection. They were princi- 
 ples of law enunciated by judges put on the bench by those 
 self-same pillagers; very often those judges were avowedly 
 corrupt, like Lord Bacon, who admitted taking bribes. Or, if 
 not purchasable by money, they were biased instruments a 
 fact well assured in advance of their appointment; in fact they 
 would not have been elevated to the high bench by the all-pow- 
 erful nobility whose purposes they served had their abject com- 
 pliancy not been well attested. The decisions of these judges 
 were followed by the American colonial judges; and presently 
 we find the Supreme Court of the United States, when in need 
 of precedents, going back to Lord Coke, Lord Bacon and such 
 jurists. 
 
 John Jay Chooses to be Chief Justice. 
 
 The landed class, being by virtue of its wealth, its cohesive- 
 ness and its long hold on government, the dominant class, had 
 no difficulty in getting President Washington, himself an ex- 
 tensive landholder, to fill the Supreme Court bench with men of 
 its own class. When Washington gave John Jay his choice of 
 Federal offices, Jay selected for himself, in 1789, the post of 
 Chief Justice of the Supreme Court. 
 
 Why did Jay choose this position? It could hardly have 
 been entirely from ambition or taste, inasmuch as six years 
 later he resigned from the Chief Justiceship in order to undergo 
 a long and tedious trip to Europe to execute a treaty by which, 
 among other provisions, alien landholders and their American 
 connections or purchasers were eventually able to recover large 
 and highly valuable areas of confiscated estates. By making 
 this treaty Jay performed a service of inestimable value to the 
 landholding class ; and it can be reasonably inferred that when 
 he picked the seat of Chief Justiceship he realized the im- 
 measurable importance of that commanding office. His ap- 
 pointment was hailed with unconcealed delight and gratification
 
 138 HISTORY OF THE SUPREME COURT 
 
 by the powerful landholders ; among the mass of people a cor- 
 responding sense of deep dismay was not slow in expressing 
 itself. 
 
 By hereditary ties and family and personal connections, Jay 
 was allied by birth, marriage and interest with a number of the 
 mightiest manorial lords in the United States. 
 
 His father, Peter, a rich merchant trading with the West 
 Indies, was the only son of Augustus Jay, who, in 1685, had 
 married Anna Bayard. The methods by which Nicholas Bay- 
 ard, her father, obtained from Fletcher a grant of land forty 
 miles long and thirty wide, have been related in Chapter I. 
 John Jay's mother was Mary, a daughter of Jacobus Van 
 Courtlandt, a very rich New York landholder and merchant, 
 and long a politician and office holder of great influence, serv- 
 ing in the Assembly and as Mayor of New York City. 
 
 The Van Courtlandt family was one of the largest landhold- 
 ers in the State, having acquired its estate during the corrupt 
 regimes of Governors Slaughter and Fletcher. Stephanus, the 
 elder brother of Jacobus Van Courtlandt, was the right-hand 
 lieutenant of both Slaughter and Fletcher. Of Lord Bello- 
 mont's full exposure of Fletcher's bribes and corrupt grants, 
 sufficient details have been given in Chapter I. In 1683, Steph- 
 anus Van Courtlandt fraudulently secured a great tract of 
 83,000 acres, extending on the east side of the Hudson River, 
 by an ostensible purchase from the Indians. This was one 
 of the " extravagant grants " that Lord Bellomont did not 
 succeed in confiscating. 
 
 In 1697, this estate was erected into the lordship and manor 
 of Courtlandt ; and Stephanus built a splendid manor house on 
 the northern shore of Croton Bay. He had married, in 1671, 
 Gertrude, a daughter of Schuyler, who had obtained his estate, 
 too, by bribery and fraud, and whose descendants, as told in 
 Chapter I, enlarged the estate by similar fraudulent means by 
 favor of Courtlandt and other functionaries of the Provincial 
 Council. Stephanus Van Courtlandt also secured great hold-
 
 THE SUPREME COURT UNDER JOHN JAY 139 
 
 ings of land on the west bank of the Hudson River, on Long 
 Island, and in Sussex County. Jacobus Van Courtlandt mar- 
 ried Eva de Vries, stepdaughter of that Frederick Phillips (or 
 Philipse, as it was often spelled), whose career as backer of the 
 pirate, Captain Burgess, and whose methods as land appropri- 
 ator have also been described in Chapter I. Jacobus had an es- 
 tate in Yonkers which was uninterruptedly owned by his de- 
 scendants until 1889, when it was bought by the City of New 
 York and converted into what is now Van Courtlandt Park. 
 He also owned a large estate at Bedford, Westchester County, 
 of which estate a portion descended to John Jay. 
 
 Jay's Further Powerful Connections. 
 
 Descended from an intermingled line of landed families, 
 John Jay married into another mighty landed family, which, 
 despite its support of the Revolutionary movement for political 
 independence, had its alliance of family and interests with 
 powerful British nobles. 
 
 This was the Livingston family. Jay's wife, to whom he 
 was married in April, 1773, was a daughter of William Living- 
 ston, fifth child of Philip, second Lord of Livingston Manor. 
 This manorial seat comprised a tract of about 160,240 acres in 
 the northern part of the present Dutchess County, New York. 
 It had been confirmed to the time-server, political turncoat, 
 sinecurist and army contractor, Robert Livingston, by Gov- 
 ernor Hunter in 1715, with the feudal rights of court leet, 
 court baron and advowson. 1 
 
 This property, however, was only one of the far-reaching 
 possessions of the Livingston family. William Livingston who 
 lived in New Jersey, was a delegate to the Federal Constitu- 
 tional Convention, and Governor of New Jersey from 1776 to 
 1790. He was very closely associated with the Lords Pro- 
 
 1 Court leet was an ancient English feudal right investing the holder 
 with the right to hold court. Advowson was the right to nominate 
 ministers, and otherwise control churches.
 
 I4O HISTORY OF THE SUPREME COURT 
 
 prietors of New Jersey. We have seen how, during that time, 
 John Livingston, another member of the same family, and 
 acting for it, was defrauding the Indians of vast tracts of lard, 
 and compelling Phelps and Gorham to admit him and other 
 lessees into a partnership in the spoils. 
 
 Peter Van Brugh Livingston, a younger son of Philip, sec- 
 ond lord of Livingston Manor (and thus by marriage an uncle 
 of Jay), had become a rich merchant in partnership with his 
 brother-in-law William Alexander, subsequently raised to the 
 peerage under the title of Lord Stirling. We have noted how 
 William Alexander and Robert Morris were partners in that 
 contract to supply the Farmers General of France with 60,000 
 hogsheads of tobacco. Peter Van Brugh Livingston was an 
 intimate friend of Washington ; he was president of the Pro- 
 vincial Congress; and after the adoption of the New York 
 State Constitution of 1777, he was elected to the Legislature, 
 and easily managed to have himself chosen president of the 
 Assembly. 
 
 Other members of the Livingston family held high Federal, 
 State and New York City offices. They were extraordinarily 
 alert and self-assertive those Livingstons. 
 
 At the outset of the Revolution John Jay and Robert R. 
 Livingston were associated as partners in the practice of law. 
 This Robert was a son of the first Robert R. Livingston who 
 had married Margaret, the daughter of Colonel Henry Beek- 
 man. How Henry Beekman obtained two land grants from 
 Fletcher, one of sixteen miles of land in Dutchess County, and 
 the other running twenty miles along the Hudson, and eight 
 miles inland, has been related in Chapter I. By combining 
 his possessions with the Beekman estate, Robert R. Livingston 
 (the first) became reputed to be, without exception, the richest 
 landholder in New York. 2 
 
 2 The foregoing genealogical details are cited from " Prominent Fam- 
 ilies of New York," " National Cyclopedia Of American Biography," 
 and other genealogical and biographical works.
 
 THE SUPREME COURT UNDER JOHN JAY 14! 
 
 The Livingston Family's Sway. 
 
 The political motto of the Livingston family was direct and 
 concise : the family should always derive benefit, and nothing 
 of any degree of value was to escape it. Robert Livingston, 
 the founder of their fortune, had got hold of it primarily 
 through being a politician. Assiduously emulating his ex- 
 ample,- his descendants set out to thrust themselves into every 
 possible office and financial undertaking. 
 
 Robert R. Livingston the second was a member of the Con- 
 tinental Congress ; he was on the committee drafting the New 
 York State Constitution of 1777. Upon the adoption of that 
 instrument, he became the first Chancellor of New York State, 
 in which position he was promoter of a certain remarkable 
 transaction which we shall be under pressing need of describ- 
 ing later. While serving as Chancellor he held a Federal of- 
 fice, that of Secretary of Foreign Affairs, a post created by 
 Congress in 1781. In 1783 Livingston resigned this office, Jay 
 succeeding him. Livingston was president of the New York 
 Convention of 1788, called to take action on the Federal Con- 
 stitution. The whole Livingston family used its influence for 
 the ratification of that document. 
 
 For a century, the Livingston family, beginning with noth- 
 ing, and becoming one of the richest in the colonies, had as- 
 siduously pushed themselves, their ties and connections into 
 every office and scheme promising profit and assuring power. 
 Like Robert Livingston, their progenitor, they had been sa- 
 gacious in discerning the winning side in political contests, and 
 were without compunction in changing front. Now the Liv- 
 ingstons again proved their political skill and great power by 
 having Jay installed as Chief Justice of the Supreme Court of 
 the. United States. 
 
 Of an intensely aristocratic mind, haughty and arrogant, 
 Jay, filled with the views of his class, both feared and despised 
 the people. The laws so signally and disproportionately favor-
 
 142 HISTORY OF THE SUPREME COURT 
 
 ing the class of wealth, and burdening the workers, were the 
 laws he had studied and absorbed; he considered them the 
 proper laws and strove at every opportunity to perpetuate 
 them. During the Revolution, he, Hamilton, the Livingstons, 
 the Schuylers and other relatives or personal friends of their 
 class had their private political club, in the arcana of which 
 they discussed the turn of affairs and plotted conservative 
 measures. Previous to the Federal Constitutional Convention, 
 Jay wrote to Washington that he favored a Congress to be 
 composed of two houses the upper chamber to be elected for 
 life. 
 
 Many of Jay's relatives and associates, as we have already 
 seen, and as we shall perceive yet more clearly, were thor- 
 oughly unscrupulous in design, and corrupt in execution. We 
 have remarked how Hamilton, Robert Morris and Jay held a 
 private meeting to discuss land speculations, and how Morris, 
 Livingston and their associates successfully manipulated the 
 legislatures, and defrauded the Indians out of a huge domain ; 
 how Hamilton, as the confidential agent of John B. Church, 
 who had grown extra rich out of the commissary department 
 of the Revolutionary army, advanced money to Morris for his 
 land speculations this, too, has been narrated. ' Frequently 
 Hamilton was charged with peculations, an accusation 
 against which his partisan and personal friends stoutly de- 
 fended him. 3 
 
 Open charges of corruption were also made against Jay. 
 In his celebrated pamphlet * one of the effects of which was 
 the battering down of the Federalist Party John Thompson 
 Callender boldly asserted Jay's corruption. " If Washington," 
 wrote Callender, " wanted to corrupt the American judges, he 
 could not have taken a more decisive step than by the appoint- 
 ment of Jay." 
 
 This statement is merely a general one, made in a partisan 
 
 8 See Henry Adams' " New England Federalism, 1800-1815 " : 63. 
 4 " The Prospect Before Us," p. 34.
 
 THE SUPREME COURT UNDER JOHN JAY 143 
 
 spirit, and unsupported by proof. Yet it is invested with a 
 certain weight by reason of the fact that its author was willing 
 to risk indictment and trial by publishing his strictures in the 
 face of the Alien and Sedition Act. This law, passed in des- 
 peration by the Federalists to stifle criticism, was rigorously 
 enforced and interpreted. 5 Calender's statement came at a 
 time when, as we shall see, Jay's relatives and friends were un- 
 disguisedly, by force of legislative enactment and by the use 
 of their official positions and the courts, consummating great 
 schemes of spoliation in different directions. 
 
 Through Jay, the Landholders Control. 
 
 The charges of personal corruption were, however, com- 
 paratively immaterial. Not so much in a statutory sense but 
 in a far more subtle, efficacious and dangerous degree Jay's 
 mind was corrupted. His acts, generally speaking, were the 
 product of that species of corruption. Against the " lower or- 
 ders " his mind was filled with a mass of inflexible prejudices; 
 he distrusted and dreaded them, and he held it laudable to curb 
 their menacing aspirations. But in the rich and " well-born," 
 Jay saw nothing but " intelligence, wisdom, virtue and stabil- 
 ity " one of the cant political phrases of the day, manifesting, 
 however, what the aristocracy really thought of itself. 
 
 This was the class to whom the directing of government was 
 to be intrusted and vigilantly restricted. In this class, accord- 
 ing to Jay's creed, lay the right to rule with a strong hand ; it 
 was justifiable to strain every point to advance the political 
 and pecuniary interests of the rich, and assure their supremacy. 
 But nothing should be done to better the status of the work- 
 ers, by increasing whose power that of the landholders and 
 other capitalists would be correspondingly diminished. 
 
 It is idle to inquire into the honesty or dishonesty of these 
 
 5 It was partly for the methods used in procuring Callender's convic- 
 tion that impeachment proceedings were brought against Justice Samuel 
 Chase, in 1805. See later.
 
 144 HISTORY OF fHE SUPREME COURT 
 
 beliefs. Springing from the personal interests of those hold- 
 ing them, they were not individual, but class, beliefs. Those 
 who declaimed against Jay's appointment did not clearly see 
 that it was a very natural result. With the landholding class 
 guiding the currents of the Revolution, and controlling the 
 conventions, it was an inevitable conclusion that great land- 
 holders should occupy, personally 01 through agents, the offices 
 of government, especially what they then completely realized 
 was the most puissant branch the judiciary. 
 
 The insurrections in various States and the threatening 
 movements of tenants on some of the manorial estates, were 
 among the evidences of deep popular ferment. Laws aimed at 
 the landholders were always a possibility to be reckoned with 
 and provided against. If such laws were passed, the final re- 
 source of the landholders would be the courts. The courts 
 would be the bulwark against popular encroachments ; the 
 courts would know how to find means of taking the stings 
 out of laws hostile to their class. All these tactics were not 
 only clearly thought out; they were discussed in aristocratic 
 clubs, and affirmed in the private circles of the judges them- 
 selves. Having himself large landed possessions, and con- 
 nected by family ties, associations or other connections of in- 
 terest, with many of the most powerful landholding families in 
 the country, Jay, from that class point of view, was an ideal 
 man for the Chief Justiceship. His associates (the Supreme 
 Court was then composed of five members in all) were like- 
 wise of the landholders or attached to them in interest. 
 
 The Associate Justices. 
 
 The first Associate Justice appointed ty Washington, John 
 Rutledge, represented a different division of landholders. He 
 had inherited wealth from his father, who had married Sarah 
 Hext, an heiress of famed beauty. Studying law in England, 
 Rutledge had returned to his home in South Carolina, and
 
 THE SUPREME COURT UNDER JOHN JAY 145 
 
 there was attorney for plantation owners. In the Federal 
 Constitutional Convention he had been the chief mouthpiece 
 of the Southern slave holders, who, possessing great rice, cot- 
 ton and other plantations, found negro slavery profitable. He, 
 perhaps more than any other delegate, was instrumental in de- 
 feating in that Convention the proposition to prevent the im- 
 portation of slaves. Rutledge remained on the Supreme Court 
 bench for a short time only, resigning in 1791 to become Chief 
 Justice of the Supreme Court of South Carolina. 
 
 Judge William Cushing, of Massachusetts, was the third in 
 order of Washington's appointments. He was the scion of 
 two generations of royal judges. His grandfather long held 
 the position of a judge of the Supreme Court of Massachu- 
 setts, and his father succeeded, remaining a judge of that court 
 for a period of twenty-five years. His father resigning from 
 the Massachusetts Supreme Court bench in 1771, William 
 Cushing became his successor. 
 
 At the age of fifteen, William Cushing had entered Harvard, 
 where, as we have noted, it was the custom to tabulate and 
 range students according to their social rank ; as the son of a 
 royal judge William Cushing occupied the first order. During 
 the four plastic years that he studied at Harvard, he could not 
 help absorbing the caste spirit pervading that institution, which 
 experience, added to that derived from his home environment 
 and the atmosphere of rich associates, determined completely 
 the bent of his mind and prejudices. The decisions of his 
 grandfather, father and his own were always favorable to the 
 governing class. Down to the critical years preceding the ac- 
 tual outbreak of the Revolution he so carefully refrained from 
 expressing his views on that event that they were not known 
 until he was directly challenged to reply whether he would re- 
 ceive his salary from the province or the crown. He finally 
 decided to support the colonies an exceptional step, inasmuch 
 as he was the only one of the royal judges in the whole of 
 Massachusetts to turn rebel.
 
 146 HISTORY OF THE SUPREME COURT 
 
 On the reorganization of the Massachusetts judiciary, he 
 became one of the judges of its Supreme Court, and on the 
 resignation of John Adams, Gushing was elevated to be the 
 Chief Justice, which office he held for twelve years. 
 
 Here he made himself extremely obnoxious to the laboring 
 and yeoman classes by his decisions and attitude. In 1785 and 
 1786 an uprising, or insurrection as it was called, took place 
 in New England. It was a movement caused partially by the 
 continued appropriation of land by a few, and the resulting 
 evils, and more largely by the spurious currency issued by 
 the financiers and other prominent leaders of the Revolution. 
 
 Suffering from debts, with no adequate means of paying 
 them, numbers of the people rose in armed revolt. They com- 
 plained, and with the fullest justice, that while the landhold- 
 ers and shippers were enriching themselves by all manner of 
 schemes and practices, and making laws as they willed, the 
 debtors' laws were enforced against the poor with pitiless 
 rigor. The jails were crowded with poor debtors. For this 
 condition the courts were especially blamed ; they were de- 
 nounced as " rich men's courts," and their discrimination in 
 applying law aroused the most intense bitterness. The pop- 
 ular orators pointed out how, while " rich knaves and power- 
 ful plunderers " were allowed to keep their loot, the law was 
 applied mercilessly to those having no property. On one oc- 
 casion, Cushing's court was surrounded by an armed body of 
 insurrectionists; and although he and other judges declared 
 that " mob rule " would not influence them, the force of pop- 
 ular feeling was so great and threatening that the Massachu- 
 setts Legislature passed a law delaying the collection of debts. 
 
 Cushing sided wholly with the conservatives, as the land- 
 
 6 Prior to the Revolution, judges of the high courts in Massachusetts 
 dressed impressively in scarlet robes, with deep facings and cuffs of 
 black velvet. They wore wigs adorned with black silk bags, and were 
 privileged to wear swords while on the bench. In the summer, how- 
 ever, black silk gowns were substituted for the robes. The object was, 
 of course, to invest themselves with an atmosphere of awe.
 
 THE SUPREME COURT UNDER JOHN JAY 147 
 
 holders and merchants were termed. He was not only a mem- 
 ber of the Massachusetts Convention of 1788, but he presided 
 over the debates during the greater part of the session, dur- 
 ing the absence of John Hancock ; and it was by the influence 
 of such men as Elbridge Gerry, Nathaniel Gorham, John 
 Adams and others, joined with his own, that the Federal Con- 
 stitutional Convention was ratified. As an Associate Justice 
 of the Supreme Court of the United States he presided over 
 that court in the absence of John Jay ; he remained on the 
 bench until his seventy-eighth year, in 1810. 
 
 The career of Washington's next appointee, James Wilson, 
 chosen as an Associate Justice in 1789, necessitates so ex- 
 tended a narrative, that the description will be deferred until 
 a few words have been said about Washington's other ap- 
 pointees. 
 
 John Blair, appointed an Associate Justice in 1790, was a 
 personal friend of Washington ; he came from Williamsburg, 
 Virginia, had studied law in London, England, had been a 
 member of the Virginia Council, a judge, Chief Justice, and 
 Chancellor in that province, and, as a member of the Federal 
 Constitutional Convention, had voted for the adoption of the 
 Constitution. After a few years' service in the Supreme Court 
 of the United States, he resigned. 
 
 James Iredell, appointed in the same year, was the leader 
 of the Federalist Party in North Carolina. He was the son 
 of a merchant in Bristol, England, who, when James was 
 seventeen years old, had sent him to North Carolina. He be- 
 came a deputy collector, supported the movement for political 
 independence, 7 was appointed a judge of the Superior Court of 
 North Carolina, in 1777, and then Attorney-General of that 
 State. In the North Carolina Convention of 1788, called to 
 decide on the question of the Federal Constitution, he strenu- 
 ously tried to secure its adoption, but failed. 
 
 7 It was said of Tredell that by taking this step he alienated the favor 
 of a rich uncle whose fortune he would have inherited.
 
 148 HISTORY OF THE SUPREME COURT 
 
 Iredell's chief occupation during that period was in acting 
 as the attorney for large North Carolina landholders, espe- 
 cially those whose estates had been confiscated. He was, for 
 instance, the representative of the McCullohs, as well as their 
 kinsman. Henry McCulloh had, under British rule, held vari- 
 ous offices, including that of Commissioner of Crown Lands. 
 He obtained a patent for 1,200,000 acres for himself and asso- 
 ciates, but because of his failure to induce immigration to his 
 huge domain, his affairs became somewhat embarrassed. How- 
 ever, he held onto a vast area of land; and in 1761, he caused 
 his son, Henry Eustace McCulloh, an English lawyer, to come 
 to North Carolina and act as his agent. There the younger 
 McCulloh became a member of the Provincial Council, Col- 
 lector of the Port of Roanoke, and later Representative in 
 England of the Colony of North Carolina. As a member of the 
 North Carolina Council, Henry Eustace McCulloh " sold his 
 vote," says Sabine, " in favor of the Tuscarora grant of lands 
 to Williams, Pugh and Jones for a thousand acres of land. 
 The fact that he was thus bribed seems to have been notorious. 
 . . ." Sabine goes on to tell that such was McCulloh's 
 "tact and address," that when he adjusted his father's ac- 
 counts with the Crown, he got " 64,000 acres, without the pay- 
 ment of a single dollar." How he managed to do this, Sabine, 
 unfortunately, does not tell. 
 
 The elder McCulloh's estate was apparently confiscated, but 
 he had previously conveyed it to his son. In 1779, when 
 Henry Eustace McCulloh's estate was confiscated, he went to 
 England as agent for the North Carolina loyalists in prose- 
 "cuting their claims for indemnity from the British Government. 
 "He himself," Sabine relates, "was a claimant; and though 
 he received a considerable sum, he was dissatisfied." Sabine 
 further relates that when McCulloh was in England, Judge 
 Iredell " rendered him much valuable service " in North Caro- 
 lina -for which, in return, Iredell considered himself badly 
 treated; the particular nature of the service Sabine does not
 
 THE SUPREME COURT UNDER JOHN JAY 149 
 
 disclose. 8 Iredell served on the bench of the Supreme Court 
 of the United States until 1799. 
 
 Thomas Johnson, appointed by Washington in 1791, and 
 serving until 1793, came from Maryland, was an ardent Fed- 
 eralist, and also belonged to the landholding group. The arbi- 
 trary tone of the judiciary at that time may be seen from the 
 fact that when the Grand Jury, at Baltimore, handed in a pre- 
 sentment against him for holding a place in two courts at the 
 same time, Johnson haughtily told them to confine themselves 
 to their proper sphere. 
 
 The next Associate Justice, appointed in 1793 by Washing- 
 ton, was William Paterson, of New Jersey. Paterson was 
 directly connected with the Van Rensselaer family, with the 
 Lords Proprietors of New Jersey, and was the right-hand 
 auxiliary of Governor William Livingston. By family ties 
 of various kinds Paterson was also connected with many other 
 large landholding families. Stephen Van Rensselaer Paterson, 
 a twin brother of William Paterson, was long a Surveyor-Gen- 
 eral of the Lords Proprietors of New Jersey. The mother of 
 Stephen Van Rensselaer (the elder Stephen there were 
 father and son of that name) was a daughter of Philip Liv- 
 ingston, lord of Livingston Manor. After his graduation from 
 Harvard, in 1782, Stephen Van Rensselaer had been married 
 to a daughter of General Philip Schuyler ; hence by marriage, 
 becoming a brother-in-law of Alexander Hamilton. Stephen 
 Van Rensselaer's second wife was a daughter of Justice Wil- 
 liam Paterson. The immensity of Stephen Van Rensselaer's 
 estate may be judged from the fact that in Rensselaer and Al- 
 bany counties, New York, he owned 3,000 farms or about 436,- 
 ooo acres. 9 The quasi-feudal conditions prevailing on the 
 
 8 '' Loyalists of the American Revolution," Vol. II : 54. 
 
 Each of the various members of this family were large landholders. 
 In 1782 John Van Rensselaer held about 32,000 acres in New York, 
 part of which land he had leased on permanent ground rents, part for 
 life, and the residue in fee simple. Out of the entailing of his estate 
 grew protracted litigation. (See case of Van Rensselaer vs. Kearney et. 
 al., Howard's Reports, Supreme Court of the United States, Vol. II :
 
 150 HISTORY OF THE SUPREME COURT 
 
 Livingston, Van Rensselacr and other New York estates sur- 
 vived to the year i846, 10 and were the prime cause of various 
 uprisings of the eighteenth century, and of the Anti-Renters' 
 movement of 1847-49. William Paterson had long been one 
 of the most active politicians in New Jersey ; as a member of 
 the Federal Constitutional Convention he was, of course, 
 aligned with the landholding class. After serving as a United 
 States senator, he had succeeded William Livingston as Gov- 
 ernor of New Jersey. 
 
 Samuel Chase, appointed an Associate Justice by Washing- 
 ton, in 1796, was a landholder and promoter of various enter- 
 prises. Born in Maryland, in 1741, the son of a Protestant 
 Episcopalian clergyman, he became a lawyer representing large 
 landholders and shippers. An indefatigable politician, he in- 
 variably got what he sought when he wanted a private act for 
 his special benefit from the Maryland Legislature. He was a 
 signer of the Declaration of Independence, and was authorized 
 by the Maryland act of 1783 to go to England and obtain from 
 two fugitive loyalists a transfer of Bank of England stock be- 
 longing to the State of Maryland, for which mission Chase 
 was praised by the Maryland Assembly for his " great zeal, 
 fidelity and ability." " 
 
 Becoming heavily involved in two land companies, Chase pe- 
 titioned the Legislature for relief. In his memorial he set 
 forth that, in association with several others in these compa- 
 nies, he had become very largely indebted to the State and to 
 private creditors ; that he personally owed considerable sums 
 of money, and also his partnership debts; and that his prop- 
 erty was greatly insufficient to pay his debts. He further 
 stated that he had proposed to Thomas Dorsey, the only solvent 
 partner in the two companies, to convey to Dorsey all his 
 
 10 " >j ew York Constitution ; Debates In Convention, 1846 " : 1052-1056. 
 Mr. Jordan, a delegate to the Convention of 1846, denounced the feudal 
 conditions. It was, he said, from such things relief was asked ; " which 
 although the moral sense of the community will not admit to be en- 
 forced, are still actually in existence." 
 
 11 "Laws of Maryland, 1682-1784," Vol. I, Chap. 76.
 
 THE SUPREME COURT UNDER JOHN JAY 1$! 
 
 claims to all property in the two companies, and also his claim 
 to an undivided eighth part of certain confiscated British coal 
 and iron lands called the Nottingham Forges and White Marsh 
 Furnace. These two properties comprised several thousand 
 acres, and carried with them sixty negro slaves, some teams, 
 coal wagons, houses and household furniture, and also three 
 hundred and forty-eight acres of a tract called Darnall's Camp, 
 bought by Chase and his partners from the State. 
 
 Why he fell into debt Chase did not explain. But the Leg- 
 islature was accommodating. It passed a special act that if 
 Chase conveyed the property to Dorsey, he should be dis- 
 charged from all debts, and that if any process was issued 
 against Chase it should be quashed. 12 It need scarcely be said 
 that, at the same time, the iron laws against poor debtors were 
 being ruthlessly enforced in all of the courts with steadfast 
 rigor ; prisons were crowded with debtors whose only crime 
 was that they owed a few dollars. 13 Justice Chase's extreme 
 arrogance, and his abuse of the functions of the Supreme Court 
 of the United States for partisan purposes, later caused im- 
 peachment proceedings to be brought against him. 14 
 
 Career of Justice James Wilson. 
 
 John Jay and the sundry Associate Justices were able men, 
 but in certain respects, the most energetic, dominating member 
 of the Supreme Court from 1789 to 1798 was James Wilson. 
 He, perhaps, more than any other incumbent left the stamp of 
 his particular subtle legal astuteness and his individuality upon 
 the proceedings and annals of that court. Washington valued 
 
 Ibid., Vol. II, Chap. 10. 
 
 13 This condition long continued. A report for the year ending No- 
 vember 26, 1831, revealed that nearly one thousand citizens had been 
 imprisoned for debt in Baltimore. More than half of this number owed 
 less than ten dollars, and of the entire number, only thirty-four were 
 individually under debts exceeding one hundred dollars. Reports of 
 Committees, First Session, Twenty-Fourth Congress, Vol. II, Report 
 No. 732: 2. 
 
 14 See Chapter V.
 
 152 HISTORY OF THE SUPREME COURT 
 
 his learning so highly, that he placed his favorite nephew, 
 Bushrod Washington (later an Associate Justice of the Su- 
 preme Court) in Wilson's office to study law, personally pay- 
 ing Wilson for his nephew's tuition. Wilson was deeply 
 grounded in all of the subtleties of Roman and mediaeval law, 
 and very resourceful in never being at a loss for impressive 
 authorities and precedents. 
 
 A Scotch lawyer, Wilson had emigrated to America. Here 
 he made good headway ; his clients were rich, and he was suc- 
 cessful in their suits. Although he supported the movement 
 for independence, he brought upon himself popular hatred by 
 his sneers at the " lower orders," and his utterances and acts 
 in support of rich Tories whom he defended during the Rev- 
 olution. Pamphlets and other writings of the time abound in 
 ridicule of his " lofty strut," and in denunciations of his atti- 
 tude. 
 
 More serious was an attack upon him, on October 4, 1779, 
 during his stay in Annapolis. Enraged at his conduct, a group 
 of patriots rushed up to his house, and opened fire with a 
 cannon. Anticipating this, Wilson had gathered his friends 
 and had turned his house into a miniature fortress. The city 
 troop were hurriedly summoned, the attackers was fired on, 
 and several were killed and wounded. 
 
 Whatever were Wilson's acts and crimes, he, at least, was 
 audaciously open and honest in his truckling to the rich and in 
 his advocacy of their class interests ; at a time when most 
 politicians were secretly betraying the Revolution, while in 
 words prating of democracy, this candid quality of Wilson's 
 was certainly a virtue. Had he been lost, the whole capitalist 
 class of to-day would have had good reason to mourn him. In 
 the Federal Constitutional Convention, in which he was a 
 delegate from Pennsylvania, he did some extraordinary skill- 
 ful work ; to him is due the farsightedness of inserting in the 
 Constitution of the United States a modest-looking little clause 
 which, however, has had the most far-reaching consequences,
 
 THE SUPREME COURT UNDER JOHN JAY 153 
 
 And the fact that it was the personal experience of himself, 
 Robert and Gouverneur Morris, Thomas Fitzsimmons and 
 other Constitutional molders, in the notorious Bank of North 
 America transaction, that led to the drafting and adoption of 
 that clause, tends to prove that the men who drafted the Con- 
 stitution knew fully the secret and ultimate purport of every 
 clause. 
 
 The Bank of North America Transaction. 
 
 Under the patriotic pretence that the charter for which they 
 asked was for a union of citizens to supply the army, a group 
 of politicians, on April i, 1782, pushed an act through the 
 Pennsylvania Legislature, incorporating the Bank of North 
 America. This bank had been chartered by the Continental 
 Congress in 1781, but under the then loose Confederated gov- 
 ernment, that charter was not believed to be of any compre- 
 hensive account. The principal promoter of that charter in 
 the Continental Congress was George Clymer, of Philadel- 
 phia ; he and John Nixon were appointed by Congress to re- 
 ceive subscriptions for the Bank of North America. Clymer, 
 in 1765, had married Elizabeth, a daughter of Reese Meredith, 
 one of the leading Philadelphia merchants and shippers. With 
 his father-in-law, and later with his brother-in-law, Samuel 
 Meredith, Clymer engaged in an extensive mercantile business. 
 He subsequently became the first president of the Philadelphia 
 Bank. . 
 
 By the provisions of the Pennsylvania Legislative act, the 
 capital of the Bank of North America was placed at ten million 
 " Spanish milled dollars and no more." 15 The directors of 
 the bank, as specified by name in the act, comprised some of 
 the foremost merchants and lawyers in Pennsylvania. Thomas 
 Willing, partner of Robert Morris, was designated as presi- 
 dent. The directors named were James Wilson, Thomas Fitz- 
 
 13 " Statutes At Large of Pa., 1779-1781," Vol X : 406-408. The actual 
 amount of its capital in American currency was about $400,000.
 
 154 HISTORY OF THE SUPREME COURT 
 
 simmons, Cadwallader Morris, Samuel Osgood, William Bing- 
 ham (one of the richest Pennsylvania merchants), Samuel 
 Inglis, Samuel Meredith and others. 10 Wilson was also at- 
 torney for the bank, and in that representation Gouverneur 
 Morris was associated with him. Of these men, four became 
 delegates to the Federal Constitutional Convention held five 
 years later James Wilson, Thomas Fitzsimmons, George 
 Clymer, and Gouverneur Morris. Robert Morris, who was 
 deeply interested in the bank through his partner Gouverneur 
 Morris, was also a member of the Federal Constitutional Con- 
 vention. 
 
 In his work, published in 1833," Gouge says that in nowise 
 did the bank aid the Government ; that the stockholders acted 
 fraudulently in paying in only $70,000, or seven-fortieths of 
 its capital. Robert Morris, then controlling the financial de- 
 partment of the Revolution, deposited $254,000 in the Bank of 
 North America, and credited the Government with that amount 
 of stock in the bank. Thus, by this ambidexterous operation, 
 the individual stockholders acquired the power to circulate 
 $400,000 in the bank's notes. The Government's own money 
 was loaned back to it, and to other borrowers, as also the 
 $400,000 additional money which the Government's deposits 
 and sanction soon made current at par value. From these 
 fraudulent methods the bank's stockholders reaped from twelve 
 to sixteen per cent, dividends. " In 1785," says Gouge, of the 
 Bank of North America, " the effects of its operation began 
 to be apparent. ... A temporary plenti fulness of money, 
 followed by great scarcity, usury, ruin to the many, riches to 
 the few." 
 
 The Origin of a Famous Constitutional Clause. 
 
 Public outcry compelled the Pennsylvania Legislature to act. 
 On September 13, 1785, an act repealing the Bank of North 
 
 ""Statutes at Large of Pa., 1779-1781," Vol. X: 406-408. 
 
 * 7 " History of Paper Money and Banking In The United States."
 
 THE SUPREME COURT UNDER JOHN JAY I$5 
 
 America's charter was passed, the preamble of which act read : 
 " Whereas the bank established in the city of Philadelphia 
 hath been found to be injurious to the welfare of this State, 
 and in its tendency appears to be incompatible with the public 
 safety, Therefore," etc., etc. 18 The profits, however, were so 
 rich that the directors had no intention of allowing the repeal- 
 ing act to stand. James Wilson and Gouverneur Morris, as 
 the bank's attorneys, argued vigorously in the Legislature : 
 Was not the passage of the original act a grant of a vested 
 right ? Could the charter be repealed without impairing vested 
 rights, and the rights of innocent parties ? Whether it was in- 
 fluenced by these or more tangible arguments, the Legislature 
 yielded. On March 17, 1787, it reincorporated the Bank of 
 North America for a term of fourteen years and allowed it an 
 increased capital of $2,000,000 all told. 19 Thomas Willing still 
 remained president, and Fitzsimmons, Nesbit and some of the 
 other original directors were renamed in the new act. Among 
 the stockholders, then or later, were some of the most eminent 
 judges ; Justice Yeates, of the Supreme Court of Pennsylva- 
 nia, did not sit in a subsequent action because of his being a 
 stockholder. 20 
 
 In the very year that the Bank of North America was re- 
 chartered, the Federal Constitutional Convention adopted the 
 well-known clause forbidding any State to pass legislation im- 
 pairing the obligation of a contract. Seven years later, Wil- 
 son and other noted politicians bribed an act through the 
 Georgia Legislature, giving four companies a grant of about 
 
 18 " Statutes at Large of Pa., 1785-1787," Vol. XII: 57. 
 
 18 Ibid., 415-416. 
 
 20 Bank of North America vs. Fitzsimmons, Binney's Reports, Su- 
 preme Court of Pa., Vol. Ill : 360. This bank is still in existence. By 
 a special act of Congress it is the only national bank in the United 
 States not compelled to use the word national. In view of the facts 
 given in these chapters pertaining to the origin of "the Bank of North 
 America, it is extremely interesting to find that bank advertising in a. 
 recent number of the Financier: "A Record of Progress For 130 
 years this institution has upheld the principles of sound banking and its 
 efficient service to financial institutions throughout the country has con- 
 tributed largely to its success,"
 
 156 HISTORY OF THE SUPREME COURT 
 
 thirty-five million acres of public land, which transaction is 
 fully described later in this chapter. When Georgia passed an 
 act rescinding the grant, the Supreme Court of the United 
 States later took refuge in that Constitutional clause forbid- 
 ding the impairment of the obligation of a contract, and de- 
 clared the rescinding act void. Under that decision, and later 
 decisions, every privilege or franchise obtained by bribery or 
 other fraud, since then, has been perpetual and indefeasible 
 in law, and could not be repealed. 
 
 Commenting upon the origin of the Constitutional clause in 
 question, Hunter, one of the most learned attorneys of his 
 time, argued in the noted case of Sturges vs. Crowninshield : 
 " The judges of the State Courts and of this Court have con- 
 fessed that there is in these words ' impairing the obligation of 
 contracts ' an inherent obscurity. . . . They are not taken 
 from the English common law, or used as a classical or tech- 
 nical term of our jurisprudence in any book of authority. No 
 one will pretend that these words are drawn from any Eng- 
 lish statute, or from the States ' statutes before the adoption of 
 the Constitution. Were they, then, furnished from that great 
 treasury and reservoir of rational jurisprudence, the Roman 
 law? We are inclined to believe this. The tradition is that 
 Mr. Justice Wilson, who was a member of the Convention, and 
 a Scottish lawyer, and learned in the civil law, was the author 
 of the phrase." 21 
 
 And, according to a letter written by Gouverneur Morris to 
 Timothy Pickering, in 1814, he (Gouverneur Morris) stated 
 that the Constitution " was written by the fingers which write 
 this letter." Morris went on to say in that letter : " Having 
 rejected redundant and equivocal terms, I believed it to be as 
 clear as our language would permit, excepting, nevertheless, 
 a part of what related to the judiciary. On that subject it 
 became necessary to select phrases, which, expressing my own 
 
 21 Wheaton's Reports, Supreme Court of the United States, Vol. IV 
 151.
 
 THE SUPREME COURT UNDER JOHN JAY 157 
 
 notions, would not alarm others." Gouverneur Morris was so 
 active in drawing up the final document, that Madison wrote 
 of him that " the finish given to the style of the Constitution 
 fairly belongs to Mr. Morris." Considering that Wilson and 
 Gouverneur Morris, as the attorneys for the Bank of North 
 America, had jointly made that noted argument before the 
 Pennsylvania Legislature, those statements are of high impor- 
 tance. 
 
 The Sequel of Wilson's Bank Scandal. 
 
 But who was to determine the question of whether legisla- 
 tion impaired the obligation of contract, and was therefore un- 
 constitutional ? Self-evidently, the courts. Quite true, the 
 majority of the Federal Constitutional Convention, in the face 
 of the popular resentment against the courts, discreetly re- 
 frained from voting affirmatively on any proposition to endow 
 the courts with power to set aside laws as unconstitutional. 
 But the charge of the impairment of an obligation of contract 
 presupposed, and carried with it, an action at law ; such a con- 
 test would come exclusively within the jurisdiction of the 
 courts. It would be the courts, and not the executive or Con- 
 gress that would pass upon the controversy, and have the 
 final decision as to whether legislation was unconstitutional or 
 not. To this extent the adroit leaders in the convention, who 
 understood perfectly at what they were aiming, succeeded in 
 deceiving, not only many of the delegates, but the great body 
 of the people. 
 
 With this clause accepted, no explicit provision was needed 
 vesting power in the courts to declare laws unconstitutional. 
 And that Wilson and his class colleagues had the foresight to 
 discern the great and wide latitude allowed the courts by the 
 acceptance of that seemingly harmless clause, is shown by the 
 large number of laws which, under it, the Supreme Court of 
 the United States has declared unconstitutional. 
 
 To understand fully the serene confidence that the landhold-
 
 158 HISTORY OF THE SUPREME COURT 
 
 ers and traders of the Revolutionary period had in the courts 
 as the final and unchangeable bulwark of their interests, and 
 what they expected from the judiciary, it is only necessary to 
 point out that the courts during the Revolution put themselves 
 above law. They usurped power when they willed, and con- 
 strued law as they pleased. Wilson knew that many of their 
 acts were sheer usurpations, for, in a pamphlet, he defended 
 usurpation. When he caused that memorable clause of his to be 
 inserted in the Constitution, he knew, also, that the usurpa- 
 tions already put in practice would serve as precedents to in- 
 vite and justify further usurpations. 
 
 In Chapter III we have already described how the Virginia 
 court, established at Vincennes from 1779 to 1787, usurped 
 the power of granting lands, and then, after its judges had 
 usurped that power, clandestinely granted large areas of land 
 to themselves. 
 
 So audaciously did they make a grand division of the plunder 
 among themselves that they took only the most superficial pre- 
 cautions to conceal their malfeasances, nor do they seem to have 
 been proceeded against in any actions, civil or criminal. 
 
 " Without dwelling," reported John Bandelet and Nathaniel 
 Ewing, Government Land Commissioners for^ the district of 
 Vincennes, to Gallatin, in 1812, " on the extraordinary cir- 
 cumstances of the above recited supposed grants, wherein the 
 members of a court of justice have made to each other such 
 unusual donations, and appropriated to themselves such a large 
 and valuable part of the country, the Commissioners will ob- 
 serve that the State of Virginia never authorized the courts 
 to grant lands. . . ." 
 
 In the same document (No. 1333, Vol. VII, American State 
 Papers: Public Lands) the full details of that usurpation are 
 further reproduced in a report of Secretary of the Treasury 
 Levi Woodbury, on February 16, 1835. But the usurpations 
 of the judiciary extended to the more serious and sinister 
 length of annulling legislative acts.
 
 THE SUPREME COURT UNDER JOHN JAY I$9 
 
 Court Usurpation Already Established. 
 
 This usurpation Shirley seeks to explain thus : " In the dark 
 days which preceded the Revolution," he says, 22 " the people of 
 the Colonies had been thoroughly indoctrinated with the idea 
 that the acts of Parliament of which they complained were 
 unconstitutional, and therefore void, and that, in consequence, 
 they were justified in resisting their enforcement. Judge Wil- 
 son, in a great pamphlet, had urged with great ingenuity and 
 force that it was the right and the duty of the courts to set 
 aside those acts. This view was supported by many of the 
 most eminent politicians, statesmen and jurists of that day. 
 This doctrine had sunk deep into the popular mind." 
 
 But it was not against acts of Parliament that the courts 
 presumed to usurp this power. The unpopularity of the laws 
 passed by Parliament supplied a very good pretext and justi- 
 fication for the assumption of a power directed, not against 
 Parliament, but against the mass of the people. The fact that 
 all the judges were royal officials, and that, when the Revolution 
 broke out, only a few of those judges supported the movement 
 for political independence (and they only under virtual com- 
 pulsion) shows Shirley to have been in complete error on this 
 point. Certainly judges drawing pay from the crown, were 
 not likely to forfeit their positions and salary by declaring the 
 laws of the crown null and void. 
 
 The usurped power of declaring laws void was a power first 
 exercised by the courts at precisely that time during the Revo- 
 lution when the insurrectionary movements of the people were 
 manifesting themselves. These movements had for their object 
 an armed protest against the old mediaeval laws still in force 
 and being reenacted, against the extortions of the landholders 
 and merchants, and against the schemes and political and 
 financial lootings so shamelessly carried on by the members of 
 the governing class. The uprisings, or rather threatening 
 
 22 "Dartmouth College Causes" (Edition of 1879) : p. 390.
 
 l6o HISTORY OF THE SUPREME COURT 
 
 upheavals, forced legislatures, in some instances, to pass laws 
 of varying remedial qualities. The courts, representing the in- 
 terests of the landlords, and composed of landowners or their 
 retainers, came quickly to the rescue of their class. 
 
 That this usurpation of power was exercised against the 
 legislatures is admitted by Shirley in his next paragraph. 
 " The judges in Rhode Island," he wrote, " had set aside an 
 act of the Legislature as unconstitutional. The same is true 
 of New Jersey. In 1788 and 1793, the Court of Appeals 
 in Virginia had done the same thing. The power of the highest 
 court to set aside such acts was recognized in New Hampshire 
 soon after the adoption of the written Constitution of 1784. 
 From 1790 to 1799, they were repeatedly declared void by the 
 highest court, and sometimes by inferior tribunals." 23 
 
 The additional fact that James Wilson, the author of the 
 clause in the Constitution prohibiting any State legislation 
 impairing the obligation of a contract, had written a pamphlet 
 urging the right of the courts to declare laws invalid, is of the 
 greatest significance. 
 
 Hamilton's Banking Interests. 
 
 Undoubtedly Wilson with his Bank of North America ex- 
 perience fresh in mind, had a valuable coadjutor in Alexander 
 Hamilton, whose speeches and writings prove that he fully 
 grasped the overshadowing importance of lodging the real 
 power in the judiciary. Hamilton had his own banking and 
 other interests, not to speak of the vast interests of his rela- 
 tives, connections and associates, and those of the whole class 
 which he so brilliantly represented, to protect against the pos- 
 sibility of hostile legislation, then so imminent because of the 
 bitter popular demonstrations. 
 
 The profits of the Bank of North America were so great 
 that Hamilton and his associates decided to start a bank in 
 
 23 " Dartmouth College Causes " : 390.
 
 THE SUPREME COURT UNDER JOHN JAY l6l 
 
 New York City. In 1784, they organized the first banking 
 company in New York State with a capital of $500,000 ; Ham- 
 ilton personally drew up the articles of copartnership. 
 
 But the people had been so badly cheated in depreciated 
 paper currency, that the Legislature was afraid to charter 
 banks. " A memorial," says John C. Hamilton, " to incor- 
 porate the bank of which the constitution had been framed 
 by Hamilton, was presented to the Legislature early in 1784, 
 but so prevalent was the jealousy of moneyed influence that 
 it was compelled to conduct it affairs during six years without 
 corporate immunities." 24 So anxious was Hamilton to start his 
 bank, that he opened it even before he had obtained lawful 
 authority, and without waiting for those legislative favors by 
 which directors were individually exempted from being sued. 
 From 1784 to 1788 he, personally, was a director; 25 and up to 
 the very day of his death he controlled that institution. It 
 held a monopoly of banking powers in New York, and, like the 
 Bank of North America, it was of the greatest service in facili- 
 tating great land speculations, and exercising pressure upon 
 merchants in elections. 
 
 Not until March 21, 1791, was Hamilton able to secure a 
 charter from the New York Legislature. How, it may be 
 fairly asked, in view of later developments, did he get it? 
 Was it given as a partisan present by his Federalist associates? 
 Or was some stronger and more metallic inducement necessary 
 to influence the legislators to defy public opposition induce- 
 ments such as Aaron Burr, it was revealed, gave in 1799 when 
 he obtained Ihe charter for the Manhattan Bank, and induce- 
 ments such as others gave later in getting charters for the 
 Mercantile Bank, the Bank of America and other banks ? This 
 
 24 Hammond's " Political History of the State of New York," Vol. 
 
 1 : 323- 
 
 25 " A History of the Bank of New York, 1784-1884 " : 122. Hamil- 
 ton, as Secretary of the Treasury, dealt extensively with the Dutch 
 bankers, Willinck, the same to whom Robert Morris sold 3,000,000 acres 
 of New York land.
 
 l62 HISTORY OF THE SUPREME COURT 
 
 we may suspect, but do not know. But we do learn that in 
 1790, a year after his becoming Secretary of the Treasury, 
 Hamilton made the Bank of New York the agent for the sale 
 of 200,000 guilders, 20 and that when he and Morris established 
 the Bank of the United States, it was evidently Hamilton's 
 plan to make the Bank of New York a branch factor of that in- 
 stitution ; between the two banks, however, " a friendly arrange- 
 ment was made." " This matter of the chartering of banks 
 deserves to be kept constantly in mind ; in its proper place we 
 shall have to make a further exposition of bank charters, and 
 the close connection existing between the particular interests 
 that certain other renowned Justices of the Supreme Court of 
 the United States had in them, and some notable decisions fol- 
 lowing. 
 
 James Wilson's Bank of North America enterprise, his suc- 
 cess in getting it rechartered in the teeth of the most violent 
 popular antagonism, and the great service he rendered the 
 propertied class both in the Federal Constitutional Convention 
 and in the Pennsylvania Convention made him a man of mark. 
 But, notable as were Wilson's banking activities, 1 is land oper- 
 ations were far more extensive, and were considered more 
 scandalous. Before, however, describing these, it is advisa- 
 ble to give an additional series of facts as to the continued 
 and widespread seizure of land, under color of law, then in 
 unmitigated process. Plundering of the public domain was 
 the recognized order of the day. 
 
 The associated politicians and capitalists were exercising 
 the freest hand in appropriating as much of the public domain 
 as they wanted. The continued alienation of the State lands, 
 and the despoilment of the National lands were carried on at 
 the same time, and by politicians and capitalists of both political 
 parties. Nearly all of Chief Justice Jay's relatives, intimate 
 friends and business connections were deep ii? these legalized 
 seizures ; Associate Justice James Wilson was particularly con- 
 
 28 " A History of the Bank of New York," etc., 39. 27 Ibid., 42.
 
 THE SUPREME COURT UNDER JOHN JAY 163 
 
 spicuous, as were Robert Morris, Hamilton, Fitzsimmons, 
 Jonathan Dayton, Aaron Burr and a large number of other 
 leading lights, not omitting Washington himself. 
 
 The " Sufferers " Get a Donation of 500,000 Acres. 
 
 First the appropriation of the lands owned by the various 
 States will be considered. The State of Connecticut held a 
 large area, called the Western Reserve, in Ohio. In May, 1792, 
 the Connecticut Legislature passed an act, under the pretence of 
 making indemnity for losses caused by the incursions of the 
 British army into various Connecticut towns. By this act, and 
 another act passed in May, 1795, a tract of 500,000 acres 
 of land in Trumbull County, Ohio, fronting Lake Erie, were 
 conveyed to Thaddeus Burr and others. 28 
 
 Another act was passed in October, 1796. It was entitled, 
 " An Act for Incorporating the Proprietors of the Half Mil- 
 lion Acres of Land lying south of Lake Erie." This act created 
 the recipients as a corporation, and provided that they and 
 their heirs should have succession. The next clause made pro- 
 vision that the Proprietors should have agents in meetings to 
 represent them ; the regulations prescribed show clearly that 
 the act was designed to benefit men of wealth, and not the 
 poor who had suffered. Proprietors in those towns whose al- 
 lowed losses were 10,000 or less, could send one agent ; those 
 whose losses ranged from 10,000 to 20,000 could send two 
 agents ; those with a loss from 20,000 to 30,000 could send 
 three ; and so on in the same proportion. The voting in the 
 meetings for the selection of agents was thus arranged by this 
 law : Those whose losses were less than 100 should have 
 one vote ; those having lost 100 to 200, two votes ; those with 
 losses from 200 to 300, three votes, and so on up the list. 
 But no single loss was to give more than ten votes. 29 Another 
 
 28 " Connecticut Laws: Public Statute Laws" (Edition of 1808), Vol. 
 1 : 456-457. 
 
 451-455-
 
 164 HISTORY OF THE SUPREME COURT 
 
 act, along the same lines, passed in May, 1797, allowed deeds 
 of conveyance, for which no provision was made in the origi- 
 nal act. 30 It became necessary, also, to get an act of incorpora- 
 tion from the Ohio Legislature; and this was obtained in 1803. 
 This act incorporated " the owners and proprietors of half 
 million acres of land lying south of Lake Erie, in the county 
 of Trumbull." 31 The act pathetically called the land " Suf- 
 ferers Land," although the company was composed very largely 
 of capitalists and politicians who had bought up claims of 
 losses on speculation, and had often fraudulently magnified 
 them. The Ohio lands donated comprised all that valuable 
 section of which the city of Cleveland is now the seat and cen- 
 ter. 
 
 A Few Capitalists Get 5,542,000 Acres in New York. 
 
 After the Revolution, the State of New York owned, within 
 its limits, more than seven million acres of what were then 
 called " wild and unappropriated lands." In 1791, the New 
 York Legislature enacted a law, authorizing the State Com- 
 missioners of the Land Office to dispose of these lands in 
 such parcels and on such terms and in such a manner as they 
 should judge most conducive to the interest of the public. 
 The law thus virtually allowed the Commissioners to do as 
 they pleased ; Hammond says that the act was passed by con- 
 sent of both political parties. 32 The Commissioners of the 
 Land Office consisted of the Governor (then George Clinton), 
 the Secretary of State, and the Attorney-General (then Aaron 
 Burr), and the State Treasurer and the State Auditor. 
 
 These officials at once proceeded to do business. In the same 
 year 1791 they sold the enormous area of 5,542,173 acres 
 of land for the trifling sum of $1,030,432. This fact of itself 
 
 30 " Connecticut Laws," etc., 456-457. 
 
 31 "Ohio Laws, 1803," Chap. XXIX: pp. 106-114. 
 
 32 Hammond's " Political History of the State of New York," Vol 
 I: 326.
 
 THE SUPREME COURT UNDER JOHN JAY 165 
 
 caused a considerable public scandal ; but the one circumstance 
 looked upon as particularly and inexplicably flagrant was that 
 to one individual Alexander McComb they disposed of 
 a vast tract of 3,635,200 acres for the ridiculous price of eight 
 pence an acre. Nor was this slight sum to be paid down; 
 McComb was allowed to pay it in five installments, without 
 interest and subject to a discount of six per cent, on payment 
 in advance, which still further reduced the actual price. 33 
 
 At the same time other large tracts were sold to other cap- 
 italists, among whom were the Roosevelts, James Caldwell, 
 McGregor and others. These sales, however, were made at 
 a higher rate than the sale to McComb ; some of the lands were 
 sold at about three shillings an acre, others for two shillings 
 six pence, and some for one shilling an acre. Hammond re- 
 lates that these sales were widely criticised as buil'ding up a 
 land monopoly, and that it was urged as a suspicious matter 
 that three and a half million acres of land were sold to Mc- 
 Comb at eight pence an acre, while, on the other hand, five hun- 
 dred thousand acres were sold by the same Commissioners, and 
 at about the same time, to John and Nicholas Roosevelt for three 
 shillings and a penny an acre. In the debate in the Legislature 
 it was insinuated that Clinton, Burr and their friends were 
 secretly interested in the McComb purchase, which accusation 
 McComb denied. 34 Great profits were made by these specula- 
 tors in disposing of the land at high prices to actual settlers. 
 
 The Holland Company. 
 
 It is necessary now to revert to the operations of the Hol- 
 land Company, in the background of which we have seen Ham- 
 ilton advancing John B. Church's money to Robert Morris. 
 Presently Associate Justice James Wilson will enter. 
 
 Morris, as will be recalled, sold more than 3,000,000 
 acres of his 4,000,000 acres in New York State to eleven 
 
 33 Davis' " Memoirs of Burr," Vol. I: 326. 
 
 34 Hammond, Vol. 1 : 58.
 
 l66 HISTORY OF THE SUPREME COURT 
 
 Dutch bankers and other capitalists incorporating themselves 
 as the Holland Company. It will also be remembered that 
 Jay's relatives, the Livingstons, were among the group of cap- 
 italists interested in the fraudulent Phelps and Gorhani pur- 
 chase of 2,600,000 acres in New York State. When Morris' 
 project of conveying 3,000,000 acres of land to a coterie 
 of foreign capitalists became known, the wildest popular ex- 
 citement resulted. The argument was advanced (and sound 
 law it was, too), that property could not be conveyed to aliens 
 or held by them. Morris, Wilson, the Livingstons and others, 
 and particularly Jay, as we shall see, had long had the best of 
 interested reasons for desiring the effacement of any such 
 prohibitive law. Pressure was brought to bear upon the Leg- 
 islature, and on April n, 1796, an act was passed authorizing 
 the Dutch* bankers, Willinck, and other aliens and their de- 
 scendants to hold property. 
 
 Both Burr and Hamilton were engaged in extensive land 
 grabbing, Hamilton in many different directions. Both of 
 these eminent patriots were, according to Turner, 35 " contrac- 
 tors for lands west of the Genesee River; the former [Burr] 
 for a tract upon the Holland Purchase." Burr, says Turner, 
 had made a contract for the purchase of the tract, at twelve 
 shillings per acre, at an early period of the Holland company's 
 ownership. Turner quotes in full a letter written to The- 
 >philus Cazenove, first General Agent of the Holland Company, 
 in which Burr says that " it appears that the Tonawanta Bay 
 falls within my tract" on Lake Ontario. Burr's transaction 
 with the Holland Company, Turner continues, " was blended 
 with other transactions, and eventually abandoned. But out of 
 it had originated a bond for $20,000 which was given up. 
 The surrendering of the bond gave rise to reports that Col. 
 Burr had been bribed by agents of the Holland Company to 
 favor the passage of the bill allowing aliens to hold lands. 
 Burr held John B. Church responsible for the report," and 
 
 85 "History of the Holland Purchase" (Edition of 1850) : 418.
 
 THE SUPREME COURT UNDER JOHN JAY 167 
 
 challenged him to a duel, the result of which was ineffectual. 
 Turner concludes by saying that Church apologized. 36 Perhaps 
 Church was too hasty in accusing without being able to get 
 the legal proof. Certainly, direct accusations of bribery were 
 not wanting against Burr when he persuaded the Legislature 
 to pass his artful Manhattan Bank bill, in 1799; at least ten 
 legislators, it appeared, 37 knew of the real character of the bill 
 which was ostensibly passed to provide New York City with 
 pure water, but which contained a covert clause conferring 
 banking powers on the Manhattan Company. 
 
 In the Pennsylvania activities of the Holland Company, 
 James Wilson was openly and conspicuously interested. So, 
 indirectly, was Hamilton, working through John B. Church 
 and Tench Coxe. As Assistant Secretary of the Treasury 
 under Hamilton, 38 Coxe seems to have been very close to Ham- 
 ilton. 
 
 Justice Wilson's Participation. 
 
 In 1792, the State of Pennsylvania received a formal grant 
 from the United States of what was called the Erie Triangle, 
 comprising 202,187 acres in the northwestern corner of Penn- 
 sylvania, bordering on Lake Erie. Under the Pennsylvania 
 act of 1786, opening all lands to settlers, the State officials be- 
 gan to sell it. 
 
 But they made no pretence of disposing of it to actual set- 
 tlers, despite the law requiring that it be sold to actual settlers, 
 and that it be settled within two years. Through 'dummies, 
 and with the full connivance of the State officials, principally 
 Comptroller-General John Nicholson, the Holland Company, 
 in 1792-1793, bought eleven hundred and sixty-two tracts of 
 
 30 Ibid., 419. Hamilton and Burr were rivals in more than the po- 
 litical respect. Was it Hamilton's aim to discredit Burr through 
 Church ? 
 
 37 See statement of facts in Spencer vs. Southwick, Johnson's Re- 
 ports (N. Y.), Vol. IX: 314. 
 
 38 " American State Papers : Miscellaneous," Vol. 1 : 57,
 
 168 HISTORY OF THE SUPREME COURT 
 
 four hundred acres each, paying at the rate of 10, ten shillings 
 per hundred acres ; from those 1,162 tracts, 386 tracts were later 
 deducted by reason of prior settlements, bounties and on other 
 grounds. 30 The headquarters of the Holland Company was 
 at what is now Meadville. Of about $380,000 that the Hol- 
 land Company professed to have expended for improvements, 
 settlements, etc., Judge James Wilson was credited with con- 
 tributing the sum of $222,071.10 in all; 40 he must have been 
 an uncommonly rich man to have been able personally to put 
 in so large an amount; no doubt his Bank of North America 
 supplied him with part of the funds. 
 
 Had it not been for the courts, however, especially the Su- 
 preme Court of the United States, this great fraudulent opera- 
 tion, and similar seizures in Pennsylvania, would never have 
 succeeded. In a case that came up before Judge Huston, in 
 the Supreme Court of Pennsylvania, thirty-eight years later, 
 involving land in western Pennsylvania, Huston gave a very 
 comprehensive survey of the land frauds of the time here dealt 
 with. 
 
 " At one period of our history," wrote Judge Huston, in 
 delivering the court's opinion, " from 1784 till December, 1786, 
 our then Supreme Court made some decisions which alarmed 
 everybody ; and an act of Assembly was passed, declaring all 
 warrants issuing for lands on which a settlement had been 
 made, except to the settler or his legal representative, should 
 be null and void. And soon after, the courts decided that all 
 such warrants which had issued for land occupied by a settler 
 were void, The same thing had been decided, and was the 
 settled law, before the Revolution." 41 Judge Huston then 
 cited from a decision of Judge Yeates * 2 in which Yeates wrote 
 that for some years after the Revolution the sentiments of 
 
 39 See, Case of Commonwealth of Pa. vs. Tench Coxe, Dallas' Re- 
 ports (Supreme Court of Pa.), Vol. IV: 175. 
 
 40 Ibid. This is the exact amount stated in the court record in a suit 
 brought by Pennsylvania in 1800, two years after Wilson's death. 
 
 41 Case of Campbell vs. Galbreath, Watts' Reports, Vol. 1 : 70, etc, 
 
 42 Lessee of Bonnet vs. Devebaugh, III Binney's Reports,
 
 THE SUPREME COURT UNDER JOHN JAY 169 
 
 some of the judges of the Supreme Court of Pennsylvania 
 " were unfriendly to settlers and improvers," but that a change 
 of opinion took place about the year 1793. The precise nature 
 of this change Judge Huston did not state. 
 
 Then, going on to describe at length the fraudulent processes 
 by which, through fictitious settlers, large speculators obtained 
 the land, and the prolonged scenes of riot and bloodshed en-- 
 suing in conflicts between pretended and actual settlers up 
 to the year 1802, Judge Huston continued, " The lands west 
 of the Alleghany were taken upon warrants paid for by Judge 
 Wilson, John Nicholson, Robert Morris, and many others, 
 none of whom were ever in or near that country, but they had 
 agents who procured the surveys, and paid for them money 
 furnished by the owner. . . ." 43 Further facts concerning 
 the Holland Company we shall be under the necessity of nar- 
 rating later in their appropriate place in relation to a certain 
 decision of Chief Justice Marshall. 
 
 Wilson's land operations were by no means confined to any 
 particular section of Pennsylvania. His gathering in of land 
 extended throughout that State; many of the most valuable 
 coal tracts in Pennsylvania derive title from his ownership. 
 He owned large areas of coal land in Huntington and North- 
 ampton Counties, Pennsylvania. We find from the court rec- 
 ords that, in consideration of debts that he owed to Benjamin 
 R. Morgan of Philadelphia, and General Henry Lee of Vir- 
 ginia, Justice Wilson, on August 20, 1796, made a deed to them 
 of all his real estate in those counties, which deed was followed 
 by a trail of litigation lasting for more than three-quarters 
 of a century. 44 At the same time, Tench Coxe and John B. 
 Church were jointly acquiring extensive tracts of timber and 
 coal lands in Luzerne County and in other counties; in 1795 
 they made a division of their holdings, part going to Coxe, and 
 
 43 Ibid., 105. 
 
 44 See, Case of Alleghany Railroad and Coal Company vs. Casey, 
 Pennsylvania State Reports, Vol. 79 : 84-85,
 
 170 HISTORY OF THE SUPREME COURT 
 
 part to Church ; 45 Hamilton must have been acting for Church, 
 who was not in the United States at that time. 
 
 The scandalous methods by which these valuable lands had 
 been obtained, the accompanying violence and trickery and 
 the public bitterness induced the Legislature to pass an act, 
 on April n, 1795, "to prevent intrusions on lands within the 
 counties of Northampton, Northumberland and Luzerne." 
 Section II of this act provided that every person who combined 
 or conspired to convey, possess or settle any lands under half- 
 share rights or pretended titles, should, for each offense, pay 
 $500 to $i,poo fine, and should be subject to imprisonment at 
 hard labor for a term not exceeding eighteen months. If any 
 State officer were resisted in ejectment proceedings, he was em- 
 powered to call out the militia. 40 
 
 But the very courts expected to enforce this act, civilly and 
 criminally, were then composed of judges who were either in- 
 terested or subservient; and the act was almost entirely di- 
 verted, it is quite clear, and used as a weapon against actual 
 settlers. The land speculators had seen to it that their law 
 yers were put on the State benches equally as well as upon 
 the bench of the Supreme Court of the United States. 47 
 This fact was well known; and at a time when the Pennsyl- 
 vania Legislature was kept busy with impeachment proceed- 
 ings against judges and officials, the State judges who had 
 been counsel for the Holland Company preferred frankly to 
 state the fact, and not sit in cases affecting it, rather than in- 
 flame public excitement, already great, and risk impeachment. 
 The fact, however, that various kinds of actions, brought long 
 after in the courts, were against the heirs, legatees or the as- 
 
 < r> See, Case of Steiner and Newbold vs. Coxe, IV Pa. State Reports, 
 14. 
 
 40 Carey and Bioren's Pa. Laws, Vol. V : 72. 
 
 4 ^Thus, Judge Breckenridge of the Pa. Supreme Court had been, 
 as an attorney, counsel for the Holland Company (IV Dallas' Reports, 
 196). In the case of the Commonwealth of Pa. vs. Coxe he was dis- 
 qualified from sitting, having, as he inserted in the records, been 
 counsel for the Holland Company.
 
 THE SUPREME COURT UNDER JOHN JAY 171 
 
 signees of Wilson, Coxe, Nicholson and others shows that 
 these original appropriators were eventually successful in 
 getting original title, by reason, as will be seen, of decisions of 
 the Supreme Court of the United States. 
 
 Wilson's Illinois and Wabash Company. 
 
 The land transactions, individually or jointly, of Robert Mor- 
 ris, James Wilson, John Nicholson and their associates or 
 connections were, indeed, phenomenally extensive and ubi- 
 quitous. One of Wilson's enterprises, however, met -with fail- 
 ure; its character was so very shady that Congress, many of 
 the conspicuous members of which were promoting that scheme 
 and other great land grabs, dared not finally sanction it. This 
 particular project of Wilson's was the Illinois and Wabash 
 Land Company ; the nature of this company was thus particu- 
 larly described by President Jefferson : 48 
 
 " During the regal government two companies, called the 
 Loyal and the Ohio Company, had obtained grants from the 
 Crown for 800,000 or 1,000,000 acres of land each on the Ohio, 
 on condition of settling them in a given number of years. They 
 surveyed some and settled them; but the war of 1755 came 
 on and broke up the settlements. After it was over they 
 petitioned for a renewal. Four other large companies then 
 formed themselves, called the Mississippi, the Illinois, the Wa- 
 bash and the Indiana Companies, each praying for immense 
 quantities of land, some amounting to 200 miles square ; so 
 that they proposed to cover the whole country north between 
 the Ohio and the Mississippi and a great portion of what is 
 south. 
 
 " All of these petitions were depending, without any answer 
 whatever from the Crown, when the Revolutionary War broke 
 out. The petitioners had associated to themselves some of 
 the nobility of England and most of the characters in America 
 
 48 In a letter dated Washington, March 20, 1801, to M. de Reyneval,
 
 172 HISTORY OF THE SUPREME COURT 
 
 of great influence. When Congress assumed the Government, 
 they took some of their body in as partners to obtain their 
 influence; and I remember to have heard at the time that one 
 of them took Mr. Girard as a partner, expecting by that to 
 obtain the influence of the French court to obtain grants of 
 those lands which they had not been able to obtain from the 
 British government. All these lands were within the limits of 
 Virginia." 
 
 This, however, is only a general, incomplete description ; the 
 other necessary details will be here supplied. Both the British 
 and the Continental Governments had refused to recognize the 
 claims of the Illinois and Wabash companies. After the or- 
 ganization of the National Government, the Illinois and the 
 Wabash companies were fused into one corporation, and James 
 Wilson became its president. 40 On December 17, 1791, Justice 
 Wilson, William Smith and John Shee submitted an elaborate 
 petition to the United States Senate, praying confirmation of 
 their claims. They represented that during the years 1773 and 
 1775 William Murray, an Illinois merchant, and specified others 
 composing the Illinois Company, and Lord Dunmore and vari- 
 ous British and American lawyers and merchants comprising 
 the Wabash Company, had bought from the Indian tribes the 
 great stretch of territory claimed on the Illinois and Wabash 
 rivers. 50 In the petition neither the exact extent of the tract 
 was mentioned, nor specifically what the Indians had been 
 paid. 
 
 Despite the fact that this claim obviously could not hold in 
 law because, even if an actual purchase had been made (which 
 was doubtful), it was in contravention of King George's procla- 
 
 < "American State Papers: Public Lands," Vol. I: 27. (Docs. Nos. 
 ii and 12.) 
 
 50 Ibid. As nearly as can be made out from the records, one tract 
 extended about forty by thirty leagues, and the other of the same di- 
 mensions, between the mouth of the White River and the mouth of the 
 Wabash. The promoters claimed to have given the Indians large quan- 
 tities of strouds, blankets, guns, flour, beads, etc. They had tried in 
 1781 to get the Continental Congress to confirm their claim, but were 
 unsuccessful. " American State Papers : Public Lands," Vol. II : 253.
 
 THE SUPREME COURT UNDER JOHN JAY 173 
 
 mation of 1763, forbidding purchases from the Indians, Jus- 
 tice Wilson, acting for the company, made this proposition to 
 the Senate : " That, however clear the claim of the company 
 to the whole of their purchase may be, they hesitate not to 
 express their willingness and desire that a reasonable com- 
 promise upon the subject may take place between the United 
 States and them." The company modestly agreed to surrender 
 to the United States all the lands claimed, on condition that the 
 Government reconvey to the company one-fourth of the lands. 51 
 
 That an offer of this character should have been urged was 
 suggestive of the crass effrontery of its proposers. 
 
 The Senate Committee on Public Lands balked at this ex- 
 traordinary proposal; it reported that the petitioners held no 
 legal title to the lands, and it declined the proposition in toto. 52 
 On the other hand, the fullest encouragement was met with in 
 the House in which the notorious Jonathan Dayton, himself 
 putting through great land jobbery, was, with others of his 
 kind, all powerful. The House Committee on Public Lands 
 reported that the company's Indian deeds were good and valid, 
 and it was recommended that the United States should agree 
 to the proposal. 83 
 
 As casting a piercing ray of light upon the methods used in 
 Congress during this time, the great scandal arising from the 
 bribery of members by Robert Randall to grant a twenty-two 
 million acre claim, may be briefly referred to. 
 
 Three members of the House, Smith of South Carolina, 
 Murray of Maryland and Giles of Virginia, testified, in De- 
 cember, 1795, that Randall had made overtures to get their 
 support for a bill granting for a nominal sum a huge tract of 
 land containing from eighteen to twenty million acres border- 
 ing on Lakes Erie, Huron and Michigan. Other members of 
 the House corroborated the charges against Randall. It was 
 brought out that Randall told members of the House that he 
 already had thirty or forty members pledged in support of 
 
 01 Ibid.
 
 174 HISTORY OF THE SUPREME COURT 
 
 his bill ; that shares in the grant were to be divided among mem- 
 bers of Congress so as to get a majority ; and that those who 
 did not want shares, could get cash. 54 In view of these reve- 
 lations, the House virtuously had to take some action in its 
 own defense; by a vote of 78 to 17 it found Randall guilty of 
 " attempting to corrupt the integrity of its members." " 
 
 Congress Refuses to Admit Wilson's Claim. 
 
 During this time Justice Wilson was actively pushing his 
 Illinois and Wabash bill in Congress. In 1796, acting upon 
 the favorable report of the House Committee on Public lands, 
 he sought to get a confirmation from the Senate, claiming that 
 the original cost and interest, exclusive of the consideration 
 money paid to the Indians, amounted to 40,000 at least. 
 
 No doubt, the pushers of this fraudulent claim expected that 
 by the application of perseverance and possibly of other means, 
 they would be able to obtain some compromise or indemnity. 
 
 But with Randall's bribery scandal fresh in the public mind, 
 both Senate and House were disposed to be exceedingly cir- 
 cumspect. That the House of Representatives was by no 
 means to be accused, as a whole, of having during those years 
 an immoderate degree of integrity, was conclusively demon- 
 strated by the fact that Jonathan Dayton (some of whose 
 transactions have been described) was elevated to be its 
 Speaker. Wilson's memorial was referred to a committee con- 
 sisting of Ross, Livermore, Tracy, Tazewell and Stockton, 
 which committee, on February 3, 1797, reported, adopting the 
 Senate Committee's adverse report of March 26, 1792. The 
 Senate, as a body, adopted the committee's adverse report on 
 February 16, I797. cc This action of the Senate thwarted Jus- 
 
 54 Journal of the House of Representatives, First Session, Fourth 
 Congress, 1795, pp. 58, 68, 72-80, etc. 
 
 55 "American State Papers: Miscellaneous," Vol. I: 131. (Doc. No. 
 66.) 
 
 8 "American State Papers : Public Lands," Vol. 1 : 72-73. (Doc. No 
 30.)
 
 THE SUPREME COURT UNDER JOHN JAY 175 
 
 tice Wilson's large project, the only one of his enterprises that 
 he did not succeed in consummating. 57 
 
 In order to give a further clear account of the numerous 
 other land undertakings and their ramifications, of Morris, 
 Nicholson and their associated or abetting group of other poli- 
 ticians, it is necessary from here on to interweave the narrative 
 of various other land transactions. 
 
 Robert Morris & Co. Get Nine Thousand Lots in Washington. 
 
 It need hardly be said that when the site of the present city 
 of Washington was chosen as the location for the national 
 capital, the politicians in touch with Washington's administra- 
 tion had the fullest advance knowledge. It is a circumstance 
 further worthy of note that the Carrolls, especially Daniel Car- 
 roll of Maryland, owned a large part of the then waste lands 
 now embraced within the District of Columbia. In the suit 
 of Van Ness vs. the City of Washington, which came up be- 
 fore the Supreme Court of the United States, in January, 
 1830, the Government stated in its plea that, when the city 
 was first laid out, David Burns (the fa'ther of Marcia Van 
 Ness) had sold a considerable area of land to the Government 
 for 25 (or a fraction more than $66.66) an acre, 58 " which 
 price was more than threefold the market price or real value, 
 independently of the adventitious and speculative valuation, 
 
 57 But, twelve years after his death, the persistent promoters suc- 
 ceeding him again petitioned Congress. The House Committee on 
 Public Lands refused to consider the claim. " Your committee submit," 
 was its report in part on January 30, 1811, "as the result of their in- 
 quiries on this point, that although a few solitary instances may be 
 found in the early settlements of the country of Indian deeds of land 
 being recognized as valid, yet such were the consequences resulting 
 from frauds practised on the simple natives, such the collision of claims 
 and controversies . . . that Government, at a pretty early day, in- 
 terfered and assumed a kind of guardianship over the rights of the 
 natives" [requiring the consent of the Government to make a con- 
 veyance of lands valid]. "American State Papers: Public Lands," Vol. 
 II : 253. 
 
 58 In 1790 i equaled about $2.66 U. S. money.
 
 176 HISTORY OF THE SUPREME COURT 
 
 superinduced by making this the permanent seat of govern- 
 ment." 89 
 
 The District of Columbia was ceded by Maryland and Vir- 
 ginia in 1789. In 1791, the greater part of the individual owners 
 conveyed the land to Thomas Beall and John M. Gantt, in trust 
 to be laid out as a city; Beall and Gantt, by order of Presi- 
 dent Washington, transferred their trust to Gustavus Scott, 
 William Thornton and Alexander White, the Commissioners 
 for laying out the City of Washington. All these men, it may 
 be remarked, soon after branched out as extensive capitalists, 
 having possessed themselves of funds to start various enter- 
 prises ; Scott, for example, became one of the incorporators of 
 the Washington and Baltimore Turnpike Company, chartered 
 by the Maryland Legislature, in 1796. The Beall family was 
 represented in the same company. 
 
 On September 29, 1792, President Washington directed that 
 Washington city lots be sold, at public or private sale by the 
 Commissioners. On December 10, 1793, Robert Morris, John 
 Nicholson and James Greenleaf formed the North American 
 Land Company, and signed articles of copartnership of the 
 purchase and sale of large tracts of land in Pennsylvania and 
 elsewhere in the United States. This partnership was to last 
 five years certain, or for a longer time if the parties should 
 consent. The purchases were to be made by Morris and Nich- 
 olson for the account of the company. Not only the lands so 
 purchased but other great tracts then owned by Morris and 
 Nicholson were to become the joint stock of tbe company. 
 Greenleaf was to pay cash to the other partners fc * one-third 
 of the said lands. No partner was permitted to buy lands on his 
 own account, so as to interfere with the objects of the com- 
 pany. The clear profits were to be equally divided. 00 
 
 Greenleaf had been speculatively buying up large tracts of 
 
 "Peters' Reports, etc., Vol. IV: 240. 
 
 60 See statement of facts ?n the case of Gilmore vs. North American 
 Land Company et. al., Peters' Reports, Vol. 1 : 460-465.
 
 THE SUPREME COURT UNDER JOHN JAY 177 
 
 Washington city real estate, about as early as 1791, from Stod- 
 dert. 01 On December 24, 1793, two weeks after the copartner- 
 ship articles between Morris, Nicholson and Greenleaf were 
 signed, an act was lobbied through the Maryland Legislature 
 (which still had jurisdiction) providing that certificates granted 
 by the Commissioners of the City of Washington should be 
 sufficient to vest the legal estate in the purchasers. But a 
 clause reserved the Commissioners the right to resell any lots 
 not paid for. On that identical day, immediately after the pas- 
 sage of the act, Greenleaf, specifically as Morris' agent, made 
 a contract with the Commissioners for the sale to them of nine 
 thousand city lots. Of these, the purchase of three thousand 
 lots had already been contracted to Greenleaf as Morris' agent 
 at 35 each, current money (which was at the rate of about 
 $2.66 U. S. money, per i), payable yearly in seven equal 
 payments without interest; the other six thousand lots were 
 sold at 30 each, to be paid annually in seven installments 
 without interest. 
 
 The negotiating attorney for Greenleaf was Judge William 
 Cranch, a nephew of John Adams, and therefore a cousin of 
 John Quincy Adams. Cranch had married a sister of James 
 Greenleaf. It is chronicled that so heavily involved was Cranch 
 by his own indorsements of notes in this transaction, that he 
 had to seek the protection of the insolvency laws. 03 
 
 Now was publicly seen the full and real import of the special 
 law passed by the Maryland Legislature. If a poor person 
 had bought goods payable in installments, the legal ownership 
 would have remained in the seller until the last penny of the 
 debt had been paid. But Morris and Greenleaf secured title 
 as soon as they received a certificate from the Commissioners, 
 
 61 See, Case of James Greenleaf's Lessee vs. James Birth, V Peters, 
 132-140. 
 
 62 The full copy of Morris and Greenleaf's contract is to be found 
 in Doc. No. 141, " American State Papers : Miscellaneous," Vol. 1 : 223- 
 224. 
 
 03 In 1802 Cranch was appointed Reporter for the Supreme Court of 
 the United States, succeeding A. J. Dallas.
 
 178 HISTORY OF THE SUPREME COURT 
 
 and could sell at once, paying the Government from the pro- 
 ceeds of their gradual sales. Thornton, Forrest, Scott and other 
 Commissioners, and President Washington himself, were buy- 
 ing Washington city lots. 64 
 
 When, sixteen years later, an action growing out of this con- 
 tract was decided by Chief Justice Marshall, that jurist, who 
 customarily made light of charges of bribing legislatures, and 
 even after the charges had been proved, treated them as fiction, 
 made (for him) this unusual comment as to the special act 
 passed by the Maryland Legislature and the Morris and Green- 
 leaf contract: 
 
 " A contract for 6,000 lots was concluded on the day that this 
 act passed, immediately after its passage. In this contract was 
 merged a former contract for 3,000 lots made with one of 
 the purchasers in this second contract. It is impossible to re- 
 flect upon this fact without being persuaded that the law was 
 agreed upon by the parties to the contract, and was specially 
 adapted to it. The immensity of property disposed of by this 
 sale, furnished motives of legislative aid by giving a speedy 
 remedy to the commissioners which might not exist on the sale 
 of particular lots occasioned by any partial default in the pur- 
 chasers." 65 
 
 Greenleaf as Morris' agent also contracted for the purchase 
 of 220 lots owned by Daniel Carroll ; about 428^ lots from 
 Notley Young; and, on July 15, 1794, he made a contract with 
 Uriah Forrest and Benjamin Stoddert for the sale to him of 
 2 39/4 lots owned by them. He, moreover, bought much addi- 
 tional Washington real estate. 80 
 
 But, although Greenleaf, in these purchases, acted as Mor- 
 ris' agent, and by agreement was to buy all lands for joint 
 account of Morris, Nicholson and himself, he nevertheless re- 
 
 * " American State Papers : Miscellaneous," Vol. 1 : 226-228. 
 
 65 Case of Oneale vs. Thornton, VI Cranch, 69. 
 
 00 Case of Gilmore vs. North American Land Company el al., I 
 Peters, 460-465. The " Duddington " estate of Daniel Carroll was taken 
 over within the limits of the City of Washington.
 
 THE SUPREME COURT UNDER JOHN JAY 179 
 
 served certain large lots in Washington to himself, by agree- 
 ment with Morris and Nicholson. 
 
 The speculative holdings of the trio now were enlarged. On 
 January 13, 1794, they entered into an agreement with Thomas 
 Stokely and John Hoge by which Morris and Nicholson bound 
 themselves to buy from the State of Pennsylvania, warrants 
 for 120,000 acres of land located between the Ohio and the 
 Alleghany rivers. Morris and Nicholson were to supply the 
 funds ; and for their work in locating and surveying the lands, 
 Stokely and Hoge were to get one equal third part of the 
 whole property. 67 In order to carry on his vast commercial 
 and land speculations Morris already had been forced to bor- 
 row immense sums of money. From whence were the funds 
 for the purchase of these 120,000 acres to come? How was 
 Nicholson to raise his share of the money? As Comptroller- 
 General of Pennsylvania, Nicholson received only a moderate 
 salary. 
 
 Impeachment Proceedings Against Nicholson. 
 
 The means by which Nicholson obtained his capital were re- 
 vealed, in 1794, when the Legislature of Pennsylvania was called 
 upon to institute impeachment proceedings against him. 
 
 For twelve years Nicholson had been Comptroller-General ; 
 he was a powerful politician ; and it was largely through him, 
 William Bingham and. Governor Thomas Mifflin (another 
 member of the Federal Constitutional Convention of 1787) 
 that Robert Morris and Justice James Wilson and their asso- 
 ciates had been able to get a charter and a recharter for the 
 Bank of North America. It was due to their connivance that 
 Morris, Wilson, Coxe and others had been able to grasp enor- 
 
 07 Ibid. An act passed April 3, 1792, by the Pennsylvania Legislature 
 recited that as the most valuable lands in Pennsylvania, included in the 
 purchase made from the Indians in 1758, had been appropriated to 
 purchasers, those remaining lands which were "inferior" should be 
 sold at a reduced price. The price was accordingly reduced. Carey 
 and Bioren's " Pa. Laws," Vol. IV : 133.
 
 l8o HISTORY OF THE SUPREME COURT 
 
 mous areas of the most valuable land in Pennsylvania. Nich- 
 olson and Morris, Bingham and others were associates in more 
 than one corporation. While converting themselves into great 
 landholders, they were rushing bills through the various leg- 
 islatures, granting themselves valuable charters and rights for 
 canal and other corporations. Thus, in 1792-1793, the Penn- 
 sylvania Legislature, under Governor Mifflin, passed an act in- 
 corporating the Conewago Canal Company, and naming Robert 
 Morris, John Nicholson, William Bingham, David Ritten- 
 house, 08 Alexander J. Dallas and other politicians as proprie- 
 tors and directors. 69 Dallas, as we have noted, was the first 
 Reporter of the Supreme Court of the United States. Robert 
 Morris was also president of the Schuylkill and Susquehanna 
 Navigation Company, 70 and Rittenhouse one of the incorpora- 
 tors of the Delaware and Schuylkill Navigation Company, char- 
 tered in 1791." 
 
 Nicholson Resigns. 
 
 One particular charge on which impeachment proceedings 
 were brought against Nicholson was made by Christian Fe- 
 briger, the State Treasurer. He accused Nicholson of having, 
 as Comptroller-General, made a personal profit of at least 
 twenty-five per cent, in illegally redeeming certain State cer- 
 tificates, called New Loan certificates. 
 
 08 The Rittenhouse family of Philadelphia became well known to later 
 generations by reason of its wealth and aristocratic airs. It shared in 
 the profits of the great land jobbing of the times. A House Committee 
 (of Congress) reported, on March 3, 1797, that when the Government 
 brought suit for moneys due, David Rittenhouse fraudulently " trans- 
 ferred all his estate to his father; and after haying made a fallacious 
 return of outstanding debts, to assignees, he obtained a discharge, under 
 the insolvent laws of Pennsylvania, from his private creditors." See, 
 "American State Papers: Miscellaneous," Vol. I: 157. (Doc. No. 96.) 
 
 09 Carey and Bioren's " Pa. Laws," Vol. IV : 252, and " American State 
 Papers : Miscellaneous," Vol. 1 : 851. Nicholson was also a director of 
 a company chartered to build a bridge over the Delaware. Dozens of 
 charters for canal, turnpike, insurance and other companies were being 
 rushed through the Legislature at this time. 
 
 70 " American State Papers : Miscellaneous " Vol. 1 : 853. 
 
 71 Ibid., 847.
 
 THE SUPREME COURT UNDER JOHN JAY l8l 
 
 These were an outgrowth of the Revolutionary debt. Ac- 
 cording to this charge, Comptroller-General Nicholson had 
 declared them redeemable, and certified them to Governor Mif- 
 flin, despite the fact that the law neither recognized them as 
 a part of the State indebtedness, nor provided funds for their 
 redemption. Of their total value of $63,075.37 it was charged 
 that $60,220.41 of the certificates were subscribed for by Nich- 
 olson personally, were owned by him, and were in his name. 
 Ten out of fourteen members of the whole Pennsylvania Sen- 
 ate pronounced Nicholson guilty of two of the most serious 
 charges, but the vote failed of being the constitutional two- 
 thirds required for impeachment. The question of removing 
 him was then taken up, but Nicholson anticipated further ac- 
 tion by resigning the office of Comptroller-General. 72 
 
 Had not the most powerful political and social influences 
 been used effectively in Nicholson's behalf, it is certain that he 
 would not have been allowed to escape impeachment. 
 
 Did Nicholson now retire to private life a ruined man? By 
 no means. He already owned millions of acres of land ; and 
 his associates had by then put through a gigantic land trans- 
 action in Georgia which eclipsed any land jobbery hitherto 
 accomplished. It caused a national scandal of the widest and 
 most lasting proportions, not only then deeply implicating Jus- 
 tice James Wilson, as it did, but seventeen years later, as we 
 shall see, it figured importantly in the case of a decision of a 
 noted Chief Justice of the Supreme Court and in the activities 
 of a certain distinguished Associate Justice. 
 
 A Thirty-Five-Million-Acre Grant, and Wilson's Part. 
 
 Robert Morris, Nicholson, Zachariah Cox and Greenleaf 
 were already interested in 12,500 acres of valuable land in 
 Georgia which had been obtained in 1787, and came to them 
 
 72 " Impeachment Trial of Judges Hopkinson and Nicholson" (Pub- 
 lished in 1795), Vol. I, etc.: 69, 87, 762, 764, etc. This volume gives the 
 official account of the testimony and proceedings.
 
 l82 HISTORY OF THE SUPREME COURT 
 
 by route of a fraudulent sheriff's sale. 73 On January 7, 1795, 
 an act was passed by the Georgia Legislature, over the Gov- 
 ernor's protest, granting to four companies, more or less as- 
 sociated, a colossal total area of land, then owned by the State 
 of Georgia. The entire tract covered, it was variously esti- 
 mated, from thirty to forty million acres. The four compa- 
 nies were supposed (reckoning by the total purchase price of 
 $500,000) to pay the State 2JS cents an acre for their grants; 
 this sum, at $500,000, would seem to have made their total 
 area in the grants 21,500,000 acres. But according to the 
 terms and boundaries of the grant, the area really amoimted 
 to 35,000,000 acres; the grantees themselves estimated the 
 area at nearly 40,000,000 acres. 74 
 
 This act was passed under the patriotic guise of being a 
 law " for appropriating a part of the unlocated territory of 
 this State for the payment of the late State troops, and for 
 other purposes " etc. 75 What the act did was to dispose of 
 Georgia's vacant lands west to the Mississippi River. Hence 
 the grants were called the Yazoo grants, from the river of 
 that name. The four companies were : 
 
 I. The Georgia Mississippi Company. The beneficiaries of 
 the grant of nearly twelve million acres obtained by this com- 
 pany were New England capitalists of whom we shall have 
 pressing need of saying more hereafter in the proper place. 
 
 II. The Upper Mississippi Company. 
 
 III. The Tennessee Company, of which Zachariah Cox was 
 the head. 
 
 IV. The Georgia Company. James Greenleaf held 2,500,- 
 ooo acres in this company. The other incorporators and pro- 
 
 73 See, Case of Field and others vs. Holland and others (VI Cranch, 
 8). The record in this case includes a letter written by Holland, in 
 1795, stating that Morris, Nicholson, Greenleaf and Zachariah Cox were 
 concerned in the property, and saying that he expected them to send a 
 draft to lift an execution which he (Holland) held upon it. 
 
 74 "American State Papers: Public Lands," Vol. I: 134. (Doc. No. 
 74-) 
 
 152.
 
 THE SUPREME COURT UNDER JOHN JAY 183 
 
 moters of the company were a crowd of the most conspicuous 
 Southern politicians and aristocrats. The company had been 
 incorporated on January i, 1795 only a little more than a 
 month before it received its grant. Among its incorporators 
 and promoters were Zachariah Cox, General and United States 
 Senator James Gunn, Matthew McAllister, George Walker, 
 William Longstreet and others, acting in trust for Wade 
 Hampton. 70 John Randolph was credited with 28,000 acres, 
 J. P. Carnes and Mrs. Elizabeth Carnes received an allotment 
 of 162,000 acres; Robert Walton, an ancestor of the present 
 enormously rich Goelet family, obtained as his share 74,000 
 acres. 
 
 The company's chief financial backer was Associate Justice 
 James Wilson, of the Supreme Court of the United States ; 
 he advanced 25,000, which he got by selling land at exorbi- 
 tant prices to settlers in Pennsylvania. For this 25,000 Wil- 
 son received ten shares entitling him to an allotment of 750,- 
 ooo acres. 77 Others advanced sundry sums, varying from 
 a few hundred pounds to 2,000, 3,000 and 5,000. The 
 purposes to which a large part of this money were put 
 will presently be seen. In view of a decision handed down 
 by Wilson in the Supreme Court in a case against Georgia *$ 
 the Chief Justice and two Associate Justices concurring 
 that the States were not sovereign, this connection of Wilson's 
 with the Georgia Land Company has its added significance 
 when considered in connection with a subsequent decision of 
 the Supreme Court of the United States. 
 
 In payment for their grants, the four companies tendered 
 payment to Georgia in depreciated currency, which the State 
 officials refused to accept. But claiming that it was legal 
 
 76 Ibid., 139-140. 
 
 77 Ibid., 141. Wilson's schemes and projects were numerous. On 
 December 24, 1795," he secured the passage of an act by the Maryland 
 Legislature by which he and others were authorized to raise $50,000 by 
 means of a lottery for the capital of a company to improve the naviga- 
 tion of the Susquehanna River. " Laws of Maryland, 1785," etc., Vol. 
 II, Chap. 62.
 
 184 HISTORY OF THE SUPREME COURT 
 
 payment, the companies, for ulterior reasons, which we shall 
 describe later on, went rapidly ahead selling or distributing the 
 lands. The Upper Mississippi Company sold more than 
 11,000,000 acres, for ten cents an acre, to Thomas L. Win- 
 throp, Ebenezer Oliver, Benjamin Jay, George Blake, John 
 Peck, Joseph Sewell, and other New England (chiefly Bos- 
 ton) capitalists; the Upper Mississippi and the Tennessee 
 Companies appropriated their grants, and the Georgia Com- 
 pany distributed a total of 6,728,000 acres among its members 
 and to others, and, in addition, reserved 1,000,000 acres to 
 sell to settlers. 78 
 
 Within, therefore, a brief time after these vast areas had 
 been corruptly obtained, the allotments had been hastily made 
 on a grand scale among a small clique of beneficiaries. 
 
 The North American Land Company. 
 
 Thirteen days after the Georgia Legislature passed the act 
 making these grants, Robert Morris, John Nicholson and 
 James Greenleaf, on February 20, 1795, entered into an agree- 
 ment by which they formed the North American Land Com- 
 pany. By this agreement, 647,046 acres of the lands in Penn- 
 sylvania belonging to the copartnership of Morris, Nicholson 
 and Company, " as well as other large quantities of land be- 
 longing to those partners, amounting in the whole to about 
 six million acres, were to constitute the capital of the said 
 land company." These lands were valued by the men making 
 this contract at fifty cents an acre, and were to be divided 
 into thirty thousand shares at $100 a share, at which price 
 they were to be sold. The company was to exist fifteen years, 
 and dividends were to be paid annually. 70 
 
 In that same year a tract of five hundred thousand acres, in 
 what is now West Virginia, were patented to Robert Morris, 
 
 "American State Papers: Public Lands," Vol. I: 141. 
 79 Case of Gilmore vs. North American Land Company et al, I Peters, 
 460-465.
 
 THE SUPREME COURT UNDER JOHN JAY 185 
 
 by the State of Virginia, 80 but this tract does not seem to have 
 been included in the North American Company's holdings. 
 If Justice James Wilson was a member of this company, the 
 court records do not state it; his heirs or assignees may have 
 been included in " the others " sued. As we have seen, James 
 Greenleaf held two million five hundred thousand acres in the 
 Georgia Company, in which Justice James Wilson had put 
 25,000, constituting, by far, the largest investment made by 
 any one of the interested individuals. 
 
 At this identical time, according to the bill in the action, 
 twenty-two years later, of Gilmore vs. North American Land 
 Company and others, Morris, Nicholson and Greenleaf were 
 insolvent or greatly indebted, and they entered into the agree- 
 ment of February 20, 1795, with intent to defraud their cred- 
 itors. The answers of Greenleaf and the directors of the 
 North American Land Company denied that they were in- 
 solvent at the time, but admitted that they were indebted to a 
 large amount. Furthermore, those answers asserted posi- 
 tively that the purchase money for the particular lands bought 
 by Gilmore under execution had been paid by Nicholson and 
 not by Morris. 
 
 Justice Bushrod Washington, in delivering the decision of 
 the Supreme Court of the United States, in October, 1817, 
 held that, inasmuch as Morris had not paid in any money, his 
 title was only an equitable one, arising from his partnership 
 with Greenleaf and Nicholson. Hence, the agreement of 
 1795 could not, in law, be set aside. But an accounting was 
 decreed, under Section 13, Statutes of Queen Elizabeth, by 
 which a conveyance was deemed fraudulent if voluntarily 
 made by the grantor at a time when he was indebted ; such a 
 
 80 See, Case of Henry C .King vs. Mullins (171 U. S. Reports, 404- 
 437). King, in 1898, claimed to have derived title to certain of this 
 land from Morris through various conveyances. King lost, the Supreme 
 Court deciding that the lands had been forfeited by reason of non- 
 payment of taxes from 1884 to 1888. See also case of King vs. Panther 
 Lumber Company, same volume and same result.
 
 l86 HISTORY OF THE SUPREME COURT 
 
 conveyance, held Justice Washington, must have been made 
 with intent to defraud creditors and others. 81 
 
 The Great Disclosures of Bribery. 
 
 To resume the story of the Georgia Land grant : The news 
 of the passage of the law giving the enormous grant of ap- 
 proximately thirty-five million acres to a few speculators was 
 read with, amazement throughout the entire Union. In 
 Georgia, the mass of the people were roused to fury. 
 
 The real circumstances of the grant, however, might never 
 have been revealed, had it not been that another group of 
 capitalists had vainly tried to get the grant for themselves, 
 after offering the State of Georgia a- definite payment of 
 $800,000. Defeated in their aim, and smarting for revenge, 
 they at once got busy, and soon the entire State was ringing 
 with charges that the associated four companies had used 
 bribery to get their grant. That this was no idle rumor, but a 
 serious enough fact, was soon proved by the results of Grand 
 Jury investigations. 
 
 Clem Lanier, a Georgia State Senator, testified that he was 
 offered two shares for twenty-five thousand acres to vote for 
 the grant, although Longstreet had previously told him that 
 a legislator's share was seventy-five thousand acres. The cer- 
 tificates of shares were signed by Judge Nathaniel Pendle- 
 ton. 82 This was the same Pendleton who had been elected to 
 the Federal Constitutional Convention, but had never taken 
 his seat. Of Pendleton's earlier land grabbing we have al- 
 ready given facts in Chapter III. 
 
 State Senator Philip Clayton testified as to State Senator 
 Robert Thomas: ". . . After the passing of the act, he 
 [Thomas] brought a considerable sum of money to my house 
 
 81 1 Peters, 460-465. 
 
 82 " American State Papers: Public Lands," Vol. I: 145. (Doc. No. 
 74.) Judge Pendleton, it may be remarked, was a close personal friend 
 of Alexander Hamilton. He removed to New York City, and was one 
 of Hamilton's seconds in the duel with Burr.
 
 THE SUPREME COURT UNDER JOHN JAY l? 
 
 and asked me to take care of it ; I believe it was two thousand 
 dollars ; on which I asked him how he got it, or if he got his 
 proportion of the lands, or words to that effect; he said it is 
 nothing to you, take care of it, and smiled. . . ." 83 
 
 Another- legislator, R. Flournoy, swore that Judge Pendle- 
 ton offered him a share " provided the business succeeded " ; 
 that the meetings of the Georgia Mississippi Company were 
 held in his [ Flournoy 's] quarters; and that General Gunn had 
 tried to get him to bribe Senator Mitchell with shares for 
 seventy-five thousand acres, but that Mitchell had refused 
 the offer. 84 
 
 State Representative James Sims testified that Gunn had 
 said to him : " Sims, I suppose from what I have heard, you 
 are a poor man, and now you have an opportunity of making 
 something handsome for yourself and family ; if you will pre- 
 vail on Mann to vote for the bill, I will give fifty thousand 
 acres of land." 85 
 
 State Senator Thomas Wylly told Representative Gindrat 
 that he [Gindrat] could have " ten likely negroes " for his 
 share. 88 Many other legislators testified similarly. 87 
 
 The Rescinding Act. 
 
 The people of Georgia were thoroughly exasperated by 
 these revelations. They elected an entire body of new rep- 
 resentatives, pledged to rescind the act. This annulling act 
 was passed on February 13, 1796, and was so remarkable a 
 document that it is well worth giving at length. 
 The preamble described the corrupt act of 1795, 
 " By which an enormous tract of unascertained millions of 
 acres of the vacant territory of this State was attempted to 
 be disposed of to a few individuals, in fee simple, and the 
 
 83 Ibid., 141. 84 Ibid., 145. 85 Ibid., 147. s Ibid., 145. 
 
 87 For full testimony see Ibid., 144-149. Chided for having sold his 
 vote for $600 when others were getting $1,000, Representative Thomas 
 Roburn replied, according to the testimony, " that it showed he was 
 easily satisfied, and was not greedy" (p. 144).
 
 l88 HISTORY OF THE SUPREME COURT 
 
 same is not only unfounded, as being without express consti- 
 tutional authority, as well as to principles and form of gov- 
 ernment, the good citizens of this State have chosen for their 
 rule, which is democratical, or a government founded on 
 equality of rights and which is totally opposed to all propri- 
 etary grants or monopolies in favor of a few, which tend to 
 build up that destructive aristocracy in the new, which is 
 tumbling in the old, world ; and which, if permitted must end 
 in the annihilation of democracy and equal rights those 
 rights and principles of government which our virtuous fore- 
 fathers fought for and established with their blood." 
 
 The preamble then went on to say that such extravagant 
 grants tended to establish a republican aristocracy, and that 
 the " said usurped act " was not for the public good : 
 
 "i. Because self preservation, or the protecting itself, is 
 the greatest good and first duty of every government ; and, as 
 has been shown, immense monopolies of land, by a few indi- 
 viduals, under the sanction of the Government are opposed 
 to the principles of democracy or the fundamental laws the 
 citizens of the State have chosen for their rule which, so far 
 from being for the good or self preservation of democratical 
 or equal government, is most manifestly for its destruction 
 and injury. 
 
 " 2. Because the expression * good of the State ' embraces 
 . . . the enjoyment of all rights, natural or acquired, 
 not expressly delegated for the purposes of government; and 
 the sale of such an enormous tract to a few speculators which 
 was, and is, the common right of all the good citizens of this 
 State, is contrary to those rights, and therefore, to their man- 
 ifest injury, and, of course, to the injury of the State." 
 
 The fourth reason given in the preamble for the repeal of 
 the act said that " there was no necessity or pressing urgency 
 for the sale of such an immense tract of territory, equal to 
 some European kingdoms " ; that the passage of the " said
 
 THE SUPREME coukT UNDER JOHN JAY 189 
 
 , usurped act " had been accomplished by subterfuge ; that the 
 State needed only $30,000 for the alleged purpose for which 
 the land was sold to the speculators, and that more than that 
 sum was in the treasury unappropriated; and that no State 
 or nation " is justified in wantonly dissipating its property or 
 revenues, and a legal alienation can only take place from the 
 most pressing necessity ; and the territory attempted to be dis- 
 posed of (was the said usurped act valid) was wantonly dis- 
 sipated, it being disposed of for the trifling sum of five hun- 
 dred thousand dollars, a sum not adequate to the annual quit 
 rents such lands were charged with previously to the Revolu- 
 tion, by the British king; which wanton dissipation cannot be 
 for the good of the State." 
 
 The fifth reason for the repeal declared : " Because, ex- 
 clusive of the immense loss of revenue to which the State is 
 exposed, from the relinquishment of taxation, the sum of 
 five hundred thousand dollars was accepted as the considera- 
 tion money for the sale, and the sum of eight hundred thou- 
 sand dollars, offered by persons of as large a capital, and as 
 much respectability and credit, and on terms more advan- 
 tageous to the State, was refused; which, as it was (should 
 the said usurped act have been declared valid) a clear loss of 
 three hundred thousand dollars to the revenues of the State, 
 it is evident that the law authorizing the sale was not deemed 
 by the Legislature ' for the good of the State,' which must 
 have consisted in obtaining the highest price and the most 
 advantageous terms." 
 
 The preamble continued : 
 
 ". . . And whereas, it does appear from sundry affi- 
 davits and proofs satisfactory to this Legislature, as well as 
 from the presentments of the grand juries, on oath, of a con- 
 siderable majority of the counties of this State ... as 
 also from the self evident proof of fraud, arising from the 
 rejection of eight hundred thousand dollars, and the accept-
 
 HISTORY OF THE SUPREME COURT 
 
 ance of five hundred thousand dollars for which the said ter- 
 ritory was sold; that fraud and corruption were practiced to 
 obtain the said act and grants, and that a majority of the 
 members of the Legislature who voted in favor of the afore- 
 said act were engaged in the purchase, and a majority of one 
 vote only appeared in favor of this usurped act in the Senate, 
 and on which majority in that branch the same was passed, 
 and corruption appears against more than one member of that 
 body; which, exclusive of the many deceptions used, and the 
 inadequacy of price for such an immense and valuable tract of 
 country, and supposing it to be constitutional, which this Leg- 
 islature declares it is not," etc., etc. 88 
 
 The annulling act ordered that the act giving the grant be 
 expunged from the records, and the deed be publicly burnt. 
 This was done; the Legislature marched in solemn order to 
 the front of the Capitol, and put the deed to the flames. 
 
 And the Remarkable Sequel. 
 
 Did this repealing act hold? Was it the finality of the 
 transaction? Did the grant become thereby forfeited to the 
 State of Georgia, and had the distinguished bribers spent their 
 money for nothing? 
 
 At this point it would seem so. But there is a sequel still 
 to be told in its appointed position later in this work a se- 
 quel of the most impressive importance, in many respects, in 
 the narrative of the Supreme Court of the United States. 
 In due place further along in these chapters the termination 
 is described and its immense significance to the generation of 
 that time and to all generations since is pointed out. There 
 the connecting links are all appropriately brought together: 
 how the capitalists obtaining the claim of these grants re- 
 fused to accept the repealing act as valid ; how they fell back 
 upon that very Constitutional clause which James Wilson, the 
 
 88 This document is given in full in " American State Papers : Public 
 Lands," Vol. 1 : 156-158.
 
 THE SUPREME COURT UNDER JOHN JAY 19! 
 
 principal backer of the briberies, had proposed in the Fed- 
 eral Constitutional Convention after his Bank of North Amer- 
 ica experience, that no State had the right to pass legislation 
 impairing the obligation of contracts ; how a certain illustrious 
 lawyer, fifteen years later, acted as the chief attorney for the 
 claimants and obtained from the Chief Justice then presiding 
 a decision in their favor under which they received from the 
 Government a total indemnity of nearly five million dollars ; 
 and how the very next year that attorney was put upon the 
 bench of the Supreme Court of the United States, where he 
 presently handed down a decision in favor of the Chief Jus- 
 tice, in a case involving that particular Chief Justice's personal 
 interests. 
 
 Robert Morris Thrown Into Jail. 
 
 Some final facts remain to be given concerning the outcome 
 of those great land transactions, in other parts of the United 
 States, of Robert Morris, James Greenleaf, Justice James Wil- 
 son, John Nicholson and their train of associates. 
 
 On May 28, 1796, an agreement was made between Green- 
 leaf, on the one part, and Robert Morris and Nicholson, on 
 the other, by which Greenleaf 'agreed to sell to Morris and 
 Nicholson his interest in the North American Land Company 
 for a large sum of money. Morris' share in the property 
 was not to be transferred until the money was paid ; this sum, 
 according to the answer in the suit of Gilmore, in 1817, was 
 not paid. 80 The arrangement, as the court found, was a fraud- 
 ulent one, intended to defraud creditors, which creditors 
 were mainly the Government and various States ; already, in 
 1795, Morris, Nicholson and Greenleaf were so deeply in 
 debt as to be virtually insolvent. Their object was to retain 
 
 89 Gilmore vs. North American Land Company, et aL, I Peters, 460. 
 The company's affairs were in such a queer and confused state that 
 the court's decision in this case stated: "It appears that many shares 
 in the company were disposed of; hut it is quite uncertain what the real 
 condition of the company's affairs is."
 
 192 HISTORY OF THE SUPREME COURT 
 
 as much of the land as they could; anticipating judgments 
 against them, they were resorting to various circumventing 
 devices. 
 
 On June 8, 1797, a judgment was obtained in New York 
 against Morris; his commercial and land operations had been 
 so enormous, and to carry them he had had to borrow such 
 volumes of money, that, when pressed by private creditors, he 
 could not pay. The court judgment resulted in his being put 
 in jail in Philadelphia, where he remained imprisoned for 
 some years. He persuaded Gouverneur Morris to advance 
 the money for the payment of the judgment, which was then 
 assigned to Adam Hoops, a personal friend of Robert Morris, 
 and agent for the various parties concerned. One of the pur- 
 poses of this assignment was to preserve to Morris the. right 
 to redemption in 1,500,000 acres which he had conveyed to 
 the Holland Company, in the nature of a mortgage, as he sup- 
 posed. Hoops later assigned the judgment to Gouverneur 
 Morris, and on September 16, 1799, Robert Morris confirmed 
 the trust deed. To an arrangement entered into by Robert 
 Morris that Hoops, acting for the trustees, should buy in such 
 lands as were sold under execution, Gouverneur Morris con- 
 sented. 
 
 Certain of Morris' lands in New York were sold under 
 judgment on February 6, 1800. Hoops made his bid at the 
 sale, but being outbid and not having sufficient funds on hand, 
 persuaded the sheriff to adjourn the sale until May 13, fol- 
 lowing, Gouverneur Morris supplying Hoops with the pound- 
 age for the sheriff's fees. 
 
 But on April 2, 1800, Gouverneur Morris, without letting 
 Robert Morris, or the trustees, know anything about his plan, 
 and without notice, assigned the judgment in question to the 
 Holland Company, for a full consideration in money. . Gouver- 
 neur Morris, after this act of duplicity toward his partner, 
 
 90 Washington, who was a very intimate friend of Morris, wrote Mrs. 
 Morris an autograph letter inviting her, during her husband's incarcera- 
 tion, to stay indefinitely in his mansion at Mount Vernon.
 
 THE SUPREME COURT UNDER JOHN JAY IQ3 
 
 made an agreement, on the same day, with Thomas L. Ogden, 
 agent of the Holland Company, that the sale of the lands 
 should take place under the judgment, and should be bought 
 in by Ogden for the Holland Company. Ogden did, indeed, 
 buy in the lands at the sheriff's sale, but it seems that he, too, 
 did s6me profitable fraud on his own account ; he turned over 
 to the Holland Company only 58,5/0 acres, not half the 
 extent of land claimed by that company. 91 
 
 This transaction caused an extended litigation between the 
 various personages concerned, three of whom the two Mor- 
 rises and Fitzsimmons had been, as we have seen, members 
 of the Federal Constitutional Convention. In fact, a long se- 
 ries of litigation for thirty-five years followed Morris' land 
 jobbing transactions in New York, Pennsylvania, Washington 
 and in other places. The docket of the Supreme Court of the 
 United States was full of these involved cases. 92 Morris had 
 also owned land in New Jersey, some of which, near what is 
 now Belvidere, he had given, in 1793, to his son-in-law, 
 Charles Croxall, who built a mansion there. Those who 
 really benefited from Morris' misfortunes were a .crowd of 
 politicians and capitalists mostly in the background. 
 
 Nicholson's Enormous Estate. 
 
 Greenleaf held on to much of his property or passed it over 
 to lessees. Nicholson left, at his death in December, 1800, 
 an enormous estate in land in Pennsylvania, Virginia, Ken- 
 tucky, North Carolina, South Carolina, Georgia and other 
 States. Some of the Pennsylvania legislative documents es- 
 
 91 The foregoing details are set forth in the case of Fitzsimmons and 
 others vs. Ogden and others, VII Cranch, 2-22. (February 4, 1812.) 
 Slow in his physical movements, Gouverneur Morris was exceedingly 
 nimble mentally. He had lost a leg, and thereafter contented himself 
 with a wooden leg, scorning to buy " one of those fancy legs." 
 
 s - See, for example, the case of Van Ness vs. the City of Washington 
 and the U. S., IV Peters, 232-286 (January, 1830), and other cases 
 growing out of his Washington real estate speculations.
 
 194 HISTORY OF THE SUPREME COURT 
 
 timated the area at from three to four million acres; other 
 reports, notably a report in 1842, by the judiciary committee 
 of the Pennsylvania House of Representatives, stated that it 
 was five million acres. 
 
 The bulk of this estate was in Pennsylvania, and included 
 extensive tracts of the very richest coal deposits. Nicholson 
 was deeply in debt for taxes to the State of Pennsylvania, 
 but by various legal devices he had, while Comptroller Gen- 
 eral, transferred large areas to various land companies in 
 which he was a leading figure. One of these was the " Asy- 
 lum Company "- a speculative land company organized for 
 the purpose of selling land to settlers. The State of Penn- 
 sylvania held a lien upon Nicholson's estate for unpaid taxes 
 amounting to $300,000. In 1805 the Legislature passed an 
 act for the " more effectual and speedy recovery of debt due 
 from the late John Nicholson," 93 and on March 19, 1807, it 
 enacted a law to force the " Asylum Company " to give in- 
 formation which it had refused, and compelling it to file a 
 schedule of the lands claimed by it. 04 Considerable of the 
 
 93 Carey and Bioren's " Pa. Laws," Vol. VII : 528. 
 
 04 Ibid., Vol. VIII: 210-211. Despite the State's lien, different indi- 
 viduals and corporations contrived to get hold of most of this valuable 
 estate during the next forty years ; the frauds and thefts by which they 
 did so are set forth in many legislative documents, and formed a con- 
 tinuous scandal. To quote one of these documents : Writing on Jan- 
 uary 24, 1842, to William Elwell, chairman of the Judiciary Committee 
 of the Pennsylvania House of Representatives, Judge J. B. Anthony 
 of the Nicholson Court (a court especially established to pass upon 
 questions arising from the disposition of the estate) said: 
 
 "On the iith of April, 1825, an act passed the Governor to appoint 
 agents to discover and sell the Nicholson lands at auction for which 
 they were allowed twenty-five per cent. A Special Board of Property 
 was also formed to compromise and settle with claimants. From what 
 has come to my knowledge in relation to this act, I am satisfied that 
 the commonwealth was seriously injured by the manner in which it was 
 carried out by some of the agents. It was made use of principally for 
 the benefit of land speculators ; and the very small sums received by 
 the State treasurer for large and valuable tracts sold and compromised, 
 show that the cunning and astute land jobbers could easily overreach 
 the Board of Property at Harrisburg. . . . Many instances of gross 
 fraud might be enumerated, but it would serve no useful purpose." 
 Judge Anthony further said that " very many of the most influential,
 
 THE SUPREME COURT UNDER JOHN JAY 195 
 
 coal lands and iron deposit holdings of some of the largest 
 present corporations in the United States, such as the Steel 
 Trust and the Coal Trust, can be traced back to their acqui- 
 sition by Nicholson and his partners. 
 
 Wilson Evades Warrants for His Arrest. 
 
 As for Justice James Wilson, signer of the Declaration of 
 Independence, author of a memorable Constitutional clause 
 pushed by him in the Federal Constitutional Convention, out- 
 classing Jay on the high tribunal of the Supreme Court of 
 the United States in point of legal skill, fertility and vigorous, 
 dominant individuality he presented a sorry figure in his 
 last years. 
 
 That he had long been a notorious land speculator ; that he 
 had supplied the principal part of the funds to wrest the pub- 
 lic lands from the Commonwealth of Pennsylvania, and to 
 bribe the Legislature of Georgia these and other acts in 
 nowise lessened his standing in the great court. No impeach- 
 ment proceedings were brought against him ; nearly all the 
 members of the Senate, and other high officials or personages, 
 had been associated with him in his jobberies, or were con- 
 cerned in similar ones. 
 
 But with the collapse of the Morris-Greenleaf-Nicholson 
 fabric of colossal land ownership, difficulties poured fast on 
 Wilson. Writs of arrest were issued against him, but to the 
 last he was agile and resourceful. He evaded arrest in Penn- 
 sylvania, by exchanging circuits with his colleague, Justice 
 Iredell of North Carolina. 05 Still in intense fear of being 
 
 astute and intelligent inhabitants and gentlemen of high standing" 
 were participants in the frauds. (Pa. House Journal, 1842, Vol. II, 
 Doc. No. 127: 700-704.) Much of the coal and iron lands now owned 
 by the Coal Trust and the Steel Trust were thus obtained at the time 
 by various individuals and corporations. 
 
 95 At that time and for more than eighty years afterwards, it was the 
 assigned practice of each Supreme Court justice to preside over the cir- 
 cuit court in the district from which he came.
 
 196 HISTORY OF THE SUPREME COURT 
 
 pursued, arrested and prosecuted, he died at Edenton, N. C. 
 on August 28, 1798. He left two children who were his 
 heirs ; and the cases which we have hitherto cited reveal that 
 before writs of arrest were issued against him, he had made 
 disposition of much of his property.
 
 CHAPTER V 
 FROM JAY'S RESIGNATION TO MARSHALL'S ACCESSION 
 
 To the puzzled astonishment of the general public, Chief 
 Justice Jay, after presiding over the Supreme Court of the 
 United States for five years, stepped down from that office 
 to go to England, as the plenipotentiary of the United States, 
 and execute a new treaty. 
 
 This happened in April, 1794. ". . . No appointment," 
 wrote Jay on April 17 of that year to his wife, referring to 
 his selection as special envoy, " ever operated more unpleas- 
 antly upon me ; but the public considerations which were 
 urged, and the manner in which it was pressed, strongly im- 
 pressed me with a conviction that to refuse it would be to 
 desert my duty for the sake of domestic concerns and com- 
 forts." * 
 
 Jay Quits the Chief Justiceship. 
 
 As the sequel proved, Jay's quitting the Chief Justiceship 
 amounted to a de facto resignation, although he did not for- 
 mally resign until June 29, 1795, after his return from Eng- 
 land. Jay did not again sit on the Supreme Court ; and in- 
 deed it would seem that President Washington did not expect 
 his return to that office, for in a secret and confidential letter, 
 Washington, on April 29, 6794, asked Jay whether he would 
 not consent to become the resident Minister of the United 
 States at London after his mission as envoy was concluded. 2 
 Washington's intermediary on this occasion was Jay's former 
 
 1 " Correspondence and Public Papers of John Jay," Vol. IV: 5. 
 
 2 Ibid., 9-10. 
 
 197
 
 198 HISTORY OF THE SUPREME COURT 
 
 law partner, Robert R. Livingston, to whom the post was also 
 offered. Both Jay and Livingston declined it. Washing- 
 ton's aim was to get rid of Gouverneur Morris, as United 
 States Minister to Paris. Morris, as Justin McCarthy tells in 
 his " French Revolution," was scandalously promoting the sale 
 in Paris of his American lands. Morris removed, it was 
 Washington's intention to transfer Pinckney from London to 
 Paris, and put Jay in Pinckney's place. 
 
 That Washington should have taken Jay away from the 
 Chief Justiceship argued powerful motives behind the mis- 
 sion to England. Of all the Governmental departments 
 Washington fully recognized the supreme importance of the 
 judicial department, of which, of course, the Supreme Court 
 of the United States was the cardinal and head factor. When, 
 on October 17, 1789, Washington had originally appointed 
 Jay Chief Justice, he had, in enclosing Jay's commission, 
 strongly urged him to accept. Washington in that letter had 
 expressed the hope that Jay would not " hesitate a moment to 
 bring into action the talents, knowledge, and integrity which 
 are necessary to be exercised at the head of that department 
 which must be considered as the keystone of our political 
 fabric." 3 Washington, then, considered the judiciary as the 
 chief bulwark of the political state, and at the apex of this 
 judiciary was John Jay. Important as was the Chief Justice- 
 ship, it is evident that Washington in selecting Jay regarded 
 the mission to England as of more importance at that juncture. 
 
 Already Jay had expressed his desire to retire to his estate 
 and live in leisure with his family and his books. The life of 
 a Supreme Court Justice was nomadic enough ; it was the 
 practice of the Supreme Court members, often two together, 
 to preside over the Circuit Courts in different cities a great 
 part of the year. They traveled over the country extensively, 
 and it need hardly be explained that travel was then slow, 
 
 3 " Correspondence and Public Papers of John Jay," Vol. Ill: 378.
 
 FROM JAY S RESIGNATION TO MARSHALL'S ACCESSION 199 
 
 rough, primitive and arduous. 4 Few leisure-loving lawyers 
 cared for this onerous duty, and the only reason Jay had ac- 
 cepted was, in his own words, " to place the judiciary on a 
 proper footing." In accepting the mission to London, Jay 
 was further away than ever from his contemplated life of 
 retirement. What were the deep actuating reasons? 
 
 Except the small, exclusive group cognizant of the secret 
 reasons, no one could fathom why it was that Jay, after hav- 
 ing himself selected the post of Chief Justice, should volun- 
 tarily quit it in order to draw up a treaty which any able, 
 unattached politician could, it was supposed, do as well. Intel- 
 ligent observers of events knew that, in addition to the nominal 
 purposes, there must be at bottom potent aims prompting this 
 extraordinary move, but precisely what were those aims was, 
 for a time, a matter of some mystification. 
 
 As a landholder himself, and allied by descent, marriage 
 and interest with many of the old manorial families of New 
 Y6rk, Jay had chosen the highest judicial position in the 
 land as one in which he could be of the most vital service to 
 his class, as well, perhaps, as securing the memorable honor 
 
 4 The Supreme Court of the United States was not then a distinct 
 institution or entity, as it is now, separate from the Circuit Courts. It 
 was, to a large extent, the whole Federal judicial system of the country, 
 and its members decided criminal, as well as civil, cases. The super- 
 eminence of the Supreme Court was recognized by Washington. On 
 July 18, 1793, Washington, through Thomas Jefferson, then Secretary 
 of State, asked the Supreme Court for an opinion on the lines of sepa- 
 ration between the different departments as drawn by the Constitution. 
 This the Supreme Court declined to give, excusing itself on the ground 
 of its being a court of last resort, and hence the impropriety of extra- 
 judicially deciding questions. 
 
 Those who may be inclined to think that the Supreme Court was of 
 no great importance because of the comparatively few civil cases decided 
 may also consider this explanation in Dallas' Reports referring to the 
 proceedings in 1793, of the Supreme Court of the United States then 
 holding its session in Philadelphia : " The Malignant Fever which, 
 during this year raged in Philadelphia, dispersed the great body of its 
 inhabitants, and proved fatal to thousands, interrupted, likewise, the 
 business of the Courts ; and I cannot trace that any important cause 
 was agitated during the present Term." II Dallas : 480.
 
 2OO HISTORY OF THE SUPREME COURT 
 
 of being the first to fill that exalted seat. 5 Was there a still 
 stronger and more pressing service that he could render to 
 the great landowners by his departing to frame a new treaty 
 with the British Government? If so, what was the nature of 
 that service? 
 
 Its nature was not at all political, as conventional writers 
 would have it; the motive actuating Jay was one involving a 
 twofold purpose, springing from the most acute sense of self- 
 preservation on the part of the landed class and its adjuncts. 
 
 The French Revolution Terrifies the Landed Class. 
 
 As the French Revolution progressed, battering to ruin 
 the old feudal conditions, and, amid portentous upheavals of 
 the French artisans and peasants, overthrowing the aris- 
 tocracy, the American landowning aristocracy was filled with 
 terror. Great estates in France were confiscated, divided 
 and sold; the governing monarchy and aristocracy of ages 
 were supplanted by revolutionary committees; and the very 
 suspicion of being an aristocrat was a sufficient warrant for 
 the guillotine. The frightful conditions long prevailing in 
 France by which the laborer was, in law and in fact, treated 
 worse than a beast of burden were swept away, at least for 
 the time. The march of the French Revolution was hailed 
 with joy by the workers of America, and hardly less so by the 
 small merchants, who instinctively grasped its real purport in 
 assuring the advent of bourgeois power and rule over the 
 grave of the feudal regime. 
 
 But the American aristocracy, like the aristocracies of all 
 other countries, shuddered at the news of the successive con- 
 vulsions, and well realized that the French Revolution was 
 
 5 The manner in which the office of Chief Justice was held is shown 
 by the deference in the address of the Lansingburgh (Federalist) Com- 
 mittee to Jay on June 30, 1792, in which it spoke of "Our respect for 
 your character, in the dignified office of Chief Justice of the United 
 States," etc. " Correspondence and Public Letters of John Jay," Vol 
 HI : 436.
 
 2OI 
 
 not one of mere phrases but was striking down to the depths. 
 The feudal conditions, somewhat analogous to those in Eu- 
 rope, long prevailing in America, were the very conditions 
 which the American landowners were bent upon maintaining, 
 and had maintained. Some of the most powerful leaders of 
 the American Revolution, such as John Adams, Hamilton, 
 Jay and others had preferred a monarchical form of govern- 
 ment, or, if not that, at any rate a mode as nearly as possible 
 imitative. The American Revolution, as contemplated and 
 molded by these men, was a rebellion for liberty of trade 
 and colonial autonomy; had that right been granted at the 
 outset, they would have remained steadfast monarchist loy- 
 alists. 6 They so admired the British form of government 
 that they patterned the American form of government as 
 closely after it as they dared. 
 
 These astute leaders of the American aristocracy closely 
 followed the developments of the French Revolution, and knew 
 that the portentous character of those events not merely af- 
 fected France but were destined to have a world-wide influence 
 on the thought and condition of peoples. 
 
 Jay had bitterly assailed the progress of the French Rev- 
 olution. Even when acting as envoy in London he continued 
 this denunciation. In a private letter to Washington written 
 from London, March 6, 1795, he said that, " The French Jac- 
 obins have greatly injured the cause of rational liberty," and 
 then proceeded to rejoice over their recent suppression, mean- 
 ing the execution of Robespierre, St. Just and the Jacobin 
 group. 7 In a letter from New York, January 19, 1796, Jay 
 wrote to Robert Goodloe Harper that he had favored the 
 overthrow of despotism and the establishment of a limited 
 monarchy, but was terrified by the later revolutionary move- 
 
 G Thus, profiting from her experience with the American colonies, 
 Great Britain gave the traders of Canada the full right to make what- 
 ever goods they wanted, and sell them where they pleased. The 
 Canadian ruling classes have remained stanch monarchists. 
 
 7 " Correspondence and Public Papers of John Jay," Vol. IV : 166.
 
 2O2 HISTORY OF THE SUPREME COURT 
 
 ment which executed Louis XVI. 8 The counter-revolution 
 planned by the royalists with its inevitable train of butcheries, 
 had it been successful ; the carefully-planned slaughter of the 
 people by the Swiss mercenaries on August 10; the immense 
 loss of life caused by the wars of the allies upon the French, 
 these did not impress Jay with the slightest feelings of horror. 
 His class instincts and interests were entirely with the counter- 
 revolution. 
 
 With England leading the reactionary nations of Europe 
 against the France of the French Revolution, the American 
 aristocracy saw that the self-interest of all aristocracies de- 
 manded that every possible help be given to the British Gov- 
 ernment. This assistance could not be preferred in the form 
 of regiments and warships. Had the Federalists, the " party 
 of property," then in power, attempted a serious prosecution 
 of the war against France, a national insurrection would have 
 resulted. 
 
 But help could be extended in another way of so indirect 
 and subtle, yet withal so fundamental a kind, as not to seem 
 suspicious on its face. Better, perhaps, at this juncture than 
 armaments was an economic assistance to England, the fore- 
 
 8 Ibid., 201. As illustrative of the opinions of Jay's intimate set, the 
 instance can be cited of General Phillip Schuyler (Hamilton's father- 
 in-law) writing to Jay, May 17, 1800, deploring recent anti-Federalist 
 successes, and calling for measures to save the nation from " the mis- 
 rule of a Man [Jefferson] who . . . is in fact pervaded with the 
 mad French philosophy." Ibid., 273. 
 
 The French Revolution, as led by Robespierre and his group, really 
 represented not the proletariat, but the aims of nascent capitalist class 
 to overthrow feudal rule and develop capitalism. This is admirably 
 explained in Kropotkin's recent " Great French Revolution." While 
 Jay was denouncing the French Revolution, his political opponents at 
 home recognized what the Revolution was actually accomplishing. 
 Thus, the Society of St. Tammany, of New York, largely a middle-class 
 organization, gave this toast at its dinner on May 12, 1793 : " Success 
 to the armies of France, and Wisdom, Concord and Firmness to the 
 Convention." " The first sentence was hardly articulated," said the 
 New York "Journal and Patriotic Register," May 15, 1793, "when as 
 one the whole company arose and gave three cheers, continued by roars 
 of applause for several minutes ; the toast was then given in whole and 
 the applause reiterated." The Philadelphia Society likewise proclaimed 
 its support of the French Revolution, as did other societies.
 
 FROM JAY'S RESIGNATION TO MARSHALL'S ACCESSION 203 
 
 most of manufacturing countries. With the gold from Brit- 
 ish trade, the English government was busy subsidizing other 
 European nations in the coalition against France in a colossal 
 effort to crush the French Revolution, and to restore the an- 
 cient regime. A tariff favorable to England, it was thought, 
 could be arranged without having to run the gauntlet of effec- 
 tive opposition in the Senate; not until twenty years later did 
 the manufacturers of cotton, woolen and other goods begin to 
 acquire power sufficient to command legislation. In the 
 United States of 1795 the large landholding class occupied and 
 swayed virtually every branch of government. 
 
 This was one of the impelling reasons for Jay's mission; 
 this was partly why he, who was secure for life in the lofty 
 office of Chief Justice of the Supreme Court of the United 
 States, voluntarily relinquished it for the brief and rather 
 arduous business of arranging a new pact with Great Britain. 
 As the most conspicuous representative of the American 
 landed class, he could be trusted, every fiber and instinct of 
 him. But there was another reason, which, added to the first, 
 decided Jay to undertake the mission a reason (considering 
 popular feeling) of so delicate and dangerous a nature that 
 none, at that critical period, had such strong motives as he 
 for transforming the plan into a fact accomplished. 
 
 Manipulation of Confiscated Estates. 
 
 We have seen how, before the Revolution, vast areas of 
 land in the colonies were owned by absentee British nobles, 
 merchants and lawyers, and how prominent colonial person- 
 ages were associated with them in companies, or as agents. 
 These estates, as well as those of native Tories, were confis- 
 cated by general acts during the Revolution. 
 
 But such measures of confiscation, while seemingly effec- 
 tive, were, in many instances, only nominally so. To evade 
 the confiscatory acts, estates were fraudulently conveyed to 
 safe parties, while act after act was slid through legislatures
 
 2O4 HISTORY OF THE SUPREME COURT 
 
 during the Revolution, altering or emasculating the provisions 
 of former acts, each successive law being more in favor of 
 the absentee or expatriated landowners. The claims to a 
 number of these confiscated estates, also, were bought by 
 astute lawyers, or by capitalists for whom the lawyers were 
 acting. These attorneys would never have purchased the 
 claims had they not known of certain technical deficiencies in 
 the laws by reason of which they had good hopes of recovering 
 the estates, or their equivalent, in the courts. 
 
 As for the courts, they were filled with judges who had 
 been attorneys for, or who were relatives of, families whose 
 estates had been confiscated. The large estates, too, of a 
 number of Jay's relatives or personal friends, such as William 
 Bayard, the Van Schaak family and others, had been con- 
 fiscated ; and what was true of Jay's circle was true of that 
 of almost all other judges and high Government officials. 
 
 Finally, British lords and merchants held claims for large 
 sums due them from settlers or from other purchasers of 
 lands, or from merchants. These claims had been outlawed 
 by statutes passed during the Revolution, and had been bought 
 up for almost nothing by speculators. 
 
 The plan under way contemplated nothing less than a series 
 of stealthy articles and acts by which the courts would be 
 able to find specious grounds for gradually restoring certain 
 confiscated estates, or for validating the purchases of claims 
 by American politicians. This plan was certain to provoke 
 the wildest outburst of popular resentment and anger. But 
 Jay affected, and really felt, a contempt for the people whom 
 he despised as much as they hated him. 
 
 A number of important cases involving the recovery of 
 confiscated British debts or British or Tory estates had come 
 before the Supreme Court of the United States when Jay 
 was Chief Justice. Chief Justice Jay and Justice Iredell and 
 Judge Griffin had held that the debts were obligatory. But on 
 one point they disagreed: the question whether specific pay-
 
 FROM JAY.'S RESIGNATION TO MARSHALL S ACCESSION 20$ 
 
 ments of such debts already made to the various States by 
 American debtors were barred from recovery or not. Chief 
 Justice Jay had held in favor of the British creditors, and his 
 associates for the American debtors. 9 
 
 The noted and much discussed case of Ware, Administrator 
 vs. Hylton and others, 10 was one of such cases. This suit had 
 originally been instituted in 1791. The reason why it com- 
 manded so much public attention and aroused such acrimony 
 was because it embodied the question of the rights of British 
 creditors to recover debts contracted before the Revolution 
 and sequestered by act of the Legislature. 
 
 The United States Circuit Court in Virginia decided in 
 favor of the American debtors, Hylton and others. But when 
 the case came up on appeal before the full Supreme Court 
 of the United States in 1795-1796, that decision was reversed, 
 and it was held that British creditors had the right to recover 
 debts. Justices Chase, Paterson, Wilson, and dishing each 
 wrote opinions to this effect, and Justice Iredell's opinion was 
 a qualified one, partly favoring both sides on different points. 
 As one of the attorneys for the American debtors in this case, 
 John Marshall had the opportunity of learning at first hand 
 what the settled court law on the subject was a knowledge 
 which, as we shall see, he was not slow in applying to his own 
 personal benefit. 
 
 The mass of the people were intensely stirred over the per- 
 tinacious efforts of British or Tory claimants to recover pos- 
 session of confiscated estates. The historic case of Chisholm 
 vs. Georgia arose over the efforts of two executors in South 
 Carolina to regain certain confiscated property in Georgia. 
 The question at issue was whether, under the Constitution, 
 the citizens of another State could sue a State. Chief Justice 
 Jay and Justices dishing, Wilson and Blair held that they 
 could; Iredell dissented. 11 Great opposition was excited by 
 
 9 " Correspondence," etc., " of John Jay," Vol. Ill : 486. 
 "Dallas' Reports, Vol. Ill: 195-285. 
 11 Ibid., Vol. II : 419-480.
 
 2O6 HISTORY OF THE SUPREME COURT 
 
 this decision not only in Georgia (where the Grand Jury pre- 
 sented it as a grievance) but in Massachusetts, Pennsylvania 
 and other States where the resentment over the efforts to re- 
 cover confiscated estates was acute. Considerable popular 
 disturbances followed this decision, which was reversed in 
 1798 by the adoption of the Eleventh Amendment to the Con- 
 stitution of the United States. 
 
 Jay's solicitude for the interests of his close friends, par- 
 ticularly Nicholas Cruger and Herman Le Roy and William 
 Bayard, may be learned from a significant letter written by 
 him from London, on September n, 1794, to Cruger. This 
 last-named personage was Alexander Hamilton's foremost 
 rich patron. LeRoy and Bayard were among the leading 
 men of wealth in New York City. As we have seen in Chap- 
 ter I, they were associated in getting fraudulent titles for 
 large areas of land validated. 12 The judge confirming those 
 titles was Judge Benson, another intimate friend of Jay. 13 
 The Bayard estates were confiscated during the Revolution 
 but were later regained under the provisions of Jay's treaty. 
 
 
 
 A " Golden Plan " fpr Millions Sterling. 
 
 " A gentleman in Holland," wrote Jay to Cruger, " has 
 been so obliging as to send me a plan to make my fortune, 
 
 12 William Bayard, born in 1729, entered mercantile life, and became 
 one of the richest merchants of New York. He was the owner of all 
 the land on which the present city of Hoboken is built. During the 
 Revolution he went to England, and his estates were confiscated and 
 sold. Two of his sons, John and Samuel, entered the British army 
 and attained high rank. His third son, William (born in 1764), re- 
 mained in New York, succeeded to his father's business, became one of 
 the largest ship owners in New York, was President of the Chamber 
 of Commerce from 1810 to 1827, and a director of the Bank of America, 
 and other banks. His daughter, Elizabeth, married Stephen Van Rens- 
 selaer (the younger). It was to William Bayard's country seat on 
 Greenwich Street that Hamilton was taken after his duel with Burr. 
 The Livingstons, Van ,Rensselaers, Bayards, Schuylers, Patefsons and 
 other powerful landed families were, as we have said, closely related by 
 marriage. 
 
 13 See, " Correspondence and Public Papers of John Jay," Vol. IV.
 
 FROM JAY'S RESIGNATION TO MARSHALL'S ACCESSION 207 
 
 I 
 
 even to the extent of many millions sterling." Pleading with 
 many expressions of regret that he unfortunately had no 
 mercantile knowledge necessary for the execution of the plan, 
 Jay then went on : " You will find this golden plan enclosed. 
 If the extensive concerns in which you are already engaged 
 should render its magnitude inconvenient, it might be well 
 to let olfr friends LeRoy and Bayard share in it. . ." 14 
 
 The nature of this " golden plan " is not stated in the pub- 
 lished letter, but we note that it was of a mercantile character, 
 which is to say one pertaining to international commerce in 
 which LeRoy and Bayard were engaged. Those who may 
 hold to the theory that Jay when in London was still Chief 
 Justice of the Supreme Court of the United States, may well 
 give this letter consideration. While acting as special envoy 
 in England negotiating a treaty dealing extensively with ques- 
 tions of commerce, Jay receives and forwards to his friends 
 a plan for reaping millions of sterling profit. That it was not 
 an airy, conjectural proposal is seen by his use of the words 
 " golden plan " ; Jay was habituated to great restraint in talk- 
 ing and writing. 
 
 One other fact is certain, which fact bears the greatest 
 relevance and importance to decisions of the Supreme Court 
 under Chief Justice Marshall, and, as will be seen, to Mar- 
 shall's own covert interests. 
 
 When Jay was arranging the treaty in London, the matter 
 of confiscated estates was one of the questions considered by 
 him. On September 13, 1794, Jay wrote in a private letter to 
 Washington that "... I learn that Virginia is escheating 
 British property and I hear of other occurrences which I re- 
 gret. . . ." 15 Three days later Jay wrote to Hamilton 
 similarly. 18 In a private letter, dated December 18, 1794, 
 Washington wrote to Jay : " The Virginia escheats of British 
 
 n Ibid., Vol. IV: 57. 
 
 ^"Correspondence and Public Papers of John Jay," Vol. IV: 59. 
 10 Ibid., 115. Jay's treaty was concluded on Nov. 19, 1794, and ratified 
 by the United States on Aug. 18, 1795.
 
 2O8 HISTORY OF THE SUPREME COURT 
 
 property do not, I am informed, stand upon the ground as 
 related to you ; but as I am not accurately enough read in the 
 law respecting these escheats to be precise in my recital of it, 
 I will request the Secretary of State to give you the principles 
 thereof." " 
 
 Jay's Treaty Denounced. 
 
 Jay carried on his negotiations in England with Lord Gren- 
 ville, Secretary of Foreign Affairs, a personal friend. It is 
 not necessary here to dwell upon all the various phases of the 
 treaty of 1794 agreed upon by Jay and Grenville ; only one 
 part of that treaty is of vital consequence to this work, and 
 to the results of this part we shall have occasion to revert in 
 Chapters VI and VII. By the provisions of Jay's treaty, 
 British creditors were to be compensated for losses caused by 
 laws of any of the States obstructing the collection of debts 
 contracted prior to the Revolutionary war ; the citizens of each 
 country were to enjoy the right to hold and convey land in 
 the territories of the other ; and debts contracted, or engage- 
 ments made, by the citizens of the one, with the other, coun- 
 try, were not to be impaired in case of national differences. 
 
 The ultimate purport of these clauses the generality of the 
 American people did not clearly perceive. They could not 
 foresee the remarkable extent to which the Supreme Court of 
 the United States would go in using those clauses as a lever 
 for a construction by which confiscated estates could be re- 
 covered. 
 
 But they did see enough to infuriate them. Even the com- 
 mercial class and the Southern plantation owners were exas- 
 perated; in return for a few paltry, insignificant concessions 
 granted by England for a period of twelve years, the United 
 States, under Jay's treaty, agreed not to export molasses, 
 sugar, coffee, cocoa or cotton to any part of the world. An- 
 
 17 "Correspondence and Public Papers of John Jay," Vol. IV: 151.
 
 FROM JAYS RESIGNATION TO MARSHALL S ACCESSION 2OO, 
 
 other grievance of the Southern slaveholders was that the 
 treaty contained no provision for indemnification for negroes 
 carried away by the British during the Revolutionary war. 
 The West India trade, for which merchants of Boston, Salem 
 and other parts were so desirous, was granted only on con- 
 dition that it should be carried on in vessels of less than sev- 
 enty tons burden. No promise was exacted from England to 
 desist from searching American merchantmen, or to refrain 
 from the seizure of British-born sailors. In Philadelphia and 
 elsewhere Jay was burned in effigy ; in more than one instance 
 an effigy of Jay was labeled in this wise or similar language ; 
 " Come up to my price and I will sell you my country." A 
 copy of the obnoxious treaty was consigned to the flames by a 
 crowd in front of Jay's own house. 
 
 The opposition of the planters and commercial interests 
 finally had its effect in the Senate which rejected the West 
 Indies' and the export clauses, but the popular opposition to 
 the treaty, as a whole, was ignored. With the exception of 
 those clauses, the treaty was ratified. No doubt the charge 
 that Jay had sold out for a price was a calumny, although it 
 revealed what the people were ready to believe of him, and the 
 repute in which he was held. A much more dominating in- 
 centive than a venal one influenced Jay, mercenary as he was ; 
 every instinct, interest, prejudice and creed of his class was 
 concentrated in him ; his conduct, as a whole, proceeded from 
 class motives, and was uniformly determined by them. In- 
 stances were not lacking, however, in which his acts seemed 
 to justify grave suspicions that he was personally profiting. 
 
 Livingstons Change Policies Overnight. 
 
 Meanwhile a great change affecting the status of both po- 
 litical parties had happened in New York State. Most of 
 the immensely powerful Livingston family had abruptly 
 shifted from the Federalist to the Republican party.
 
 2IO HISTORY OF THE SUPREME COURT 
 
 According to Hammond, this transference had taken place 
 as early as the year 1790, when Chancellor Robert R. Living- 
 ston, carrying with him his immediate connections, known as 
 the " Livingston family," went over to the Republican camp, 
 in opposition to Hamilton. The real cause, as ascribed by 
 Hamilton's friends, was (Hammond wrote) Chancellor Liv- 
 ingston's disappointment at not being appointed Chief Justice 
 of the Supreme Court of the United States. Hammond re- 
 lates that he was informed " that the family one evening had 
 a meeting for the purpose of deliberating on the subject, and 
 that the result of their deliberations was such, that the next 
 morning every member of it took a position in the ranks of 
 the Republican party," except some Livingstons in Columbia 
 County. 18 
 
 If this explanation is correct it again reveals the inordinate 
 appetite of the Livingstons for self-advantageous positions of 
 power, since they had already had two representatives on the 
 Supreme Court bench (composed of five members in all), in 
 the persons of John Jay and William Paterson. Perhaps what 
 Hammond means is that the Livingstons expected Chancel- 
 lor Robert R. Livingston to be appointed Chief Justice when 
 Jay resigned; it was about that time that distinct political 
 party alignments began to form, developing in Washington's 
 second administration into the Federalist and the Republican 
 parties. Although there might have been some rankling 
 feeling of disgruntlement over Chancellor Livingston's non- 
 appointment, yet the extreme political sagacity of the Liv- 
 ingstons argued a much broader and keener outlook as a cause 
 for their change of front. As events moved on, shrewd ob- 
 servers could descry signs that, while the Federalists might 
 still hold some years more of power, defeat was foreshad- 
 owed. Exercising their traditional political shrewdness, the 
 Livingstons always took care to array themselves on the vic- 
 
 18 Hammond's " Political History of the State of New York," Vol. I : 
 106-107.
 
 FROM JAY'S RESIGNATION TO MARSHALL'S ACCESSION 211 
 
 torious side. What was still more to their purpose, they did 
 not neglect to have their able representatives and connections 
 on both sides, so that, whichever party won, the family would 
 be in a position to draw benefit. 
 
 Between the large landholders and politico-capitalists of both 
 political parties there was, in action, only a fine exoteric differ- 
 ence of purpose. In words they might take violent issue with 
 each other, but in deed they stood stanchly together. Both 
 indiscriminately joined in granting the other great tracts of 
 public land, and bank, canal, turnpike, insurance and other 
 charters. In political creed, as affecting their own economic 
 interests, or those of their particular or sectional constitu- 
 encies, they often had cause to differ, out of which differences 
 grew what seemed to be overshadowing issues involving the 
 very fate of mankind. But while such of the working class 
 as were enfranchised were duped into supporting one side 
 or the other, the leaders of both political parties obstinately 
 refused to pass any laws ameliorating the condition of the 
 workers, at the same time using legislation to manufacture 
 laws vesting in themselves enormous and perpetual powers 
 and privileges. 19 
 
 Jay and the Livingston Steamboat Monopoly. 
 
 Whatever might have been Chancellor Livingston's sense 
 of disappointment from failure to appoint him Chief Justice, 
 he and Jay, Hamilton's close friend, not only kept on very 
 good terms, but Jay, when Governor of New York State, 
 largely helped to put through an extraordinary act for the 
 benefit of Chancellor Livingston, his former law partner. 
 
 To describe adequately this fact and other pertinent facts 
 dealing with the further career of Jay and various other per- 
 
 10 The rush to get charters of all descriptions from the various Legis- 
 latures was indescribable. Already, in 1791, the Legislature of Penn- 
 sylvania, for example, was driven into complaining that most of its 
 time was consumed in enacting laws to incorporate private associations. 
 Carey and Bioren's " Pa. Laws," Vol. IV : 28.
 
 212 HISTORY OF THE SUPREME COURT 
 
 sonages, a digression is necessary here from the consecutive 
 narrative of the Supreme Court of the United States. It is 
 an integral part of this work to portray individualities only 
 in so far as they represent forces. To illumine the nature of 
 those forces, and the enlarging or changing classes embodied 
 in them, it is also necessary to describe the measures by which 
 those ruling forces acquired more power, and the means by 
 which successive divisions of the capitalist class became dom- 
 inant. 
 
 Jay was nominated for Governor of New York State, and 
 Stephen Van Rensselaer for Lieutenant-Go vernor, in 1795; 
 thus two of the most powerful landed families in the State, 
 and, in fact, in the whole country, composed the heads of the 
 Federalist ticket. Hammond says that Jay did not want to 
 be a candidate, but that probably Hamilton, Schuyler and 
 others persuaded him to change his resolution. 20 Defeated in 
 the year 1792, Jay was elected Governor in the next elec- 
 tion, in I795- 21 As Governor, Jay was the President, ex-of- 
 ficio, of a body called the Council of Revision, which had the 
 power of approving or vetoing all laws. 
 
 Now it happened that on March 19, 1787, the New York 
 Legislature had passed an act granting to John Fitch the sole 
 and exclusive right of navigating craft, propelled by steam, in 
 the waters of New York. Ten years later, Chancellor Robert 
 R. Livingston came forward with the claim that he was the 
 possessor of a mode of propelling boats by steam. Starting 
 with the remarkable assumption that Fitch was dead, although 
 there was no legal proof to that effect, the New York Leg- 
 islature, on March 27, 1798, passed an act repealing the ex- 
 clusive powers given to Fitch, and conferring similar privi- 
 leges, for a term of twenty years, on Robert R. Livingston. 
 The act was subject to final action by the Council of Revision, 
 which, at the time, was composed of Governor Jay, Chief Jus- 
 
 20 " Political History of the State of New York," Vol. 1 : 55. 
 
 21 It was after being elected Governor that Jay formally resigned as 
 Chief Justice.
 
 FROM JAY'S RESIGNATION TO MARSHALL S ACCESSION 213 
 
 tice Lansing of the State Supreme Court, Judge Lewis and 
 Judge Benson of the same court, and Chancellor Robert R. 
 Livingston himself. 
 
 When the bill came before the Council of Revision,. Living- 
 ston, not caring to hazard the chance of impeachment for taking 
 part in voting for a bill benefiting himself exclusively, kept 
 away. But his associates attended satisfactorily to the business. 
 After making a show of objection to the bill because the facts 
 as to the grounds from which Fitch's forfeiture was to arise, 
 had not been found by some due process of law, the Council of 
 Revision then sustained both the act itself and its constitu- 
 tionality. 23 This finding was made the basis for further laws 
 in favor of Livingston, after Jay ceased to be Governor. We 
 shall proceed to tell what those laws were. 
 
 More Remarkable Laws for Livingston. 
 
 Robert R. Livingston was not an inventor; he had never 
 been anything but a rich man and politician. Did he cause 
 this bill to be passed so as to have a means of compelling 
 Robert Fulton to come to terms? This does not appear. At 
 any rate, on April 5, 1803, the Legislature of New York passed 
 another act by which it was declared that the rights and privi- 
 leges granted to Robert R. Livingston, by the act of 1798, 
 should be extended to him and Robert Fulton for a period 
 of twenty years from the passage of the act of 1803. Five 
 years later, on April n, 1808, an even more decisive law 
 was enacted. It extended the Livingston and Fulton monop- 
 oly still further, and it forbade all persons to navigate any 
 steamboat or vessel without securing a special license from 
 
 22 In Chapter I we have given a remarkable decision made by Judge 
 Benson at about this time in a noted case by which he justified title to 
 land avowedly obtained by fraud. As for Judge Lewis, he had studied 
 law with John Jay, and was related to the Livingston family by marriage. 
 
 23 For the full history, see Wheaton's Reports, Supreme Court of the 
 United States, Vol. IX : 1-240.
 
 214 HISTORY OF THE SUPREME COURT 
 
 the firm of Livingston and Fulton. 24 If such a license was 
 not obtained, the offending boat or vessel was to be forfeited. 25 
 
 These provisions were extraordinary enough, but even 
 more extraordinary were those of the succeeding act of April 
 9, 1811. This act provided that if the provisions of the former 
 act were violated, Livingston and Fulton, in case any other 
 steamboat navigated their territory, should have an action at 
 law for such boat as if they themselves had been dispossessed 
 by force. The act further declared that they could immedi- 
 ately get an injunction. 26 
 
 These cumulative acts raised an immense commotion in the 
 mercantile world. Everywhere the great landowners, with 
 the revenues from land obtained by fraud, were breaking out 
 of the bounds of being mainly landowners, and were becom- 
 ing transformed into owners of banks, turnpikes, bridges, 
 navigation companies and insurance companies. Just as in 
 the old days their sphere was one of part landowner, part 
 seignorial trader, so now they hastened to avail themselves 
 of each freshly discovered resource, each new invention, each 
 newly-developed economic institution. 27 But Livingston and 
 Fulton, in getting the steamboat monopoly in New York 
 waters (which meant the profitable Hudson River, Long Island 
 Sound and other navigable water trade), came gradually into 
 
 24 In 1806 Robert Fulton married Harriet Livingston, a niece of 
 Chancellor Livingston. By her he had four children. Houghton's 
 " Kings of Fortune," 284. Their descendants are among the richest 
 families of New York. 
 
 25 Wheaton's Reports, Supreme Court of the United States, Vol. IX : 
 1-240. 
 
 20 Ibid. 
 
 27 Thus, to give one example of a large number of instances, 
 Nicholas Cruger was one of the richest landholders in New York. His 
 will, made in February, 1791, revealed that his estate amounted to 
 $644,814.15. Of this amount, $122,905.62 was in real estate exclusive 
 of the land bought by Cruger after making his will. The dower estate 
 was valued at $71,713. Cruger held $141,779.69 in stocks, including 
 shares in the United Insurance Company, the Bank of the United States, 
 Hamilton's Bank of New York, the Bank of Albany and Aaron Burr's 
 Manhattan Company. Various other properties made up the total in- 
 ventory. Johnson's Reports, Court of Errors [N. Y.], Vol. VII: 568.
 
 FROM JAY S RESIGNATION TO MARSHALL'S ACCESSION 215 
 
 conflict with nascent capitalists, not nearly as rich as they, 
 but equally determined and aggressive. The whole mercan- 
 tile class looked with alarm upon acts by which this great new 
 method of transportation was monopolized by two men, with 
 probably influential others covertly sharing the profits. 
 
 Prevailing Legislative Corruption. 
 
 The legislative acts were, denounced as unconstitutional. 
 The owners of the monopoly fell back in triumph upon that 
 famous constitutional clause inserted by Justice James Wil- 
 son that no legislature could pass laws impairing the obliga- 
 tion of a contract. But if this claim was true of Livingston 
 and Fulton's monopoly, why did it not apply with equal force 
 to Fitch's? Livingston and Fulton also pointed out, as though 
 the argument were invincible, that no less a jurist than John 
 Jay, the first Chief Justice of the Supreme Court of the 
 United States, had in the- Council of Revision pronounced 
 the original act constitutional, and that those great authorities, 
 Judges Lansing, Lewis and Benson, had agreed with him. 
 
 To give an insight into the real methods by which legisla- 
 tures were induced to pass such acts, a few facts will be given 
 as to certain other charters granted by the New York Legisla- 
 ture during that period. 
 
 The bill chartering the Manhattan Bank, in which Aaron 
 Burr and De Witt Clinton 28 were prominently interested, was 
 passed in 1799 under the philanthropic guise of being a meas- 
 ure to incorporate a company to supply pure water to New 
 York City with the plausible pretext of diminishing future 
 
 28 It was De Witt Clinton who, some years afterward, drew the 
 charter of John Jacob Astor's American Fur Company, a'nd it was 
 through De Witt Clinton's exertions that it became a law. For an 
 extended description of the long-continued debauching, swindling and 
 murdering of Indians, done upon the strength of this charter, see Vol. 
 I, " History of the Great American Fortunes." De Witt Clinton was a 
 nephew of Governor, later United States Senator, George Clinton. 
 After serving as Mayor of New York City, De Witt Clinton repeatedly 
 became Governor of New York State.
 
 2l6 HISTORY OF THE SUPREME COURT 
 
 ravages by yellow fever. As we have seen, members of the 
 legislature, including Senator (later Judge) Spencer, were 
 openly charged with taking bribes. Jay, as president of the 
 Council of Revision, signed that bill, probably, we may con- 
 jecture, in return for the help of Burr and Clinton in passing 
 the act granting the steamboat monopoly to Livingston. Re- 
 ciprocal exchanges were usual among politicians. 
 
 Six years after the passage of the Manhattan Company act, 
 the Mercantile Bank received a thirteen years' charter. It 
 was publicly charged by various members of the Assembly that 
 this charter was secured by bribery charges substantially 
 proved before the legislative investigating committee. 29 And 
 who, it may be asked, was the organizer and the president 
 of the Merchants' Bank, founded and chartered under similar 
 circumstances at this time? No less a personage than Oliver 
 Wolcott, friend and admirer of Hamilton ; the successor of 
 Hamilton as United States Secretary of the Treasury, in 
 1795; and the intimate friend of Oliver Ellsworth, who fol- 
 lowed Jay as Chief Justice of the Supreme Court of the United 
 States. 
 
 In 1811, the New York Legislature chartered the Mechanics' 
 Bank, with a time limit, under peculiar circumstances indica- 
 ting bribery. Charges of corruption were so continuous that 
 the Legislature, in 1812, in a fine outburst of ostentatious 
 virtue, passed a resolution compelling each member to pledge 
 himself that he had neither taken nor would take, " any re- 
 ward or profit, direct or indirect, for any vote or any meas- 
 ure." 30 After this rhetorical effusion, intended to salve the 
 public, the Legislature proceeded, in that very year, to charter 
 the Bank of America. Flagrant charges of corruption were 
 made, and an investigation was held. One Assemblyman tes- 
 tified that he had been offered the sum of $500 "besides a 
 
 29 Journal of the (New York) Senate and Assembly, 1805: 351 and 
 399- 
 
 30 Ibid., 1812: 134.
 
 FROM JAY'S RESIGNATION TO MARSHALL'S ACCESSION 217 
 
 handsome present for his vote." 31 Oliver Wolcott was the 
 chief organizer of this bank also, and remained its president 
 for two years. 32 The chartering of the Chemical Bank, in 
 1824, was accomplished by bribery, according to the testimony 
 before a legislative investigating committee ; the promoters of 
 the Chemical Bank set aside a considerable sum of money, 
 and $50,000 in stock for the bribery fund. 33 The charter of 
 the notorious Seventh Ward Bank was later likewise obtained 
 by bribery. 
 
 These parallel circumstances of the securing of other char- 
 ters may tend to explain why Livingston and Fulton were able 
 to get such amazing laws. The final outcome of the long 
 litigation growing out of the Livingston and Fulton steam- 
 boat monopoly is described later in this work, comprehending, 
 as it does, one of the most noted of Chief Justice Marshall's 
 decisions. 
 
 Suffice to say here that it was generally believed that high 
 jurists and politicians were indirect beneficiaries of that 
 monopoly ; for politicians to be stockholders in companies to 
 which they, as legislators, had granted charters, was not un- 
 common, nor was it unusual for judges to hold stock. 
 
 At Jay's death in 1829, Daniel Webster said of him, in the 
 customary high-flown rhetoric of the day : " When the spot- 
 less ermine of the judicial robe fell on John Jay, it touched 
 nothing less spotless than itself." The facts, however, tell 
 otherwise. Webster would have liked that generation and 
 future generations to believe his encomium of Jay. The de- 
 cisions of Jay were useful as precedents to Webster, the most 
 active corporation lawyer of his day, the attorney for schemes 
 and projects some of which Jay himself had helped to put 
 
 31 Ibid., 259-260. 
 
 32 The Wolcott family was one of the large landed interests in Con- 
 necticut and elsewhere. It was one of the oligarchy that had almost 
 hereditarily ruled Connecticut politically for decades. Oliver Wolcott 
 returned to Connecticut, and engaged in the manufacture of woolens in 
 Litchfield. He became Governor of Connecticut, 1818-1827. 
 
 33 Journal of the [N. Y.] Senate, 1824: 1317-1350.
 
 2l8 HISTORY OF THE SUPREME COURT 
 
 through, and the ally by marriage and interest, of Jay's 
 class. 84 
 
 The Senate Rejects Rutledge. 
 
 When Jay resigned the Chief Justiceship of the Supreme 
 Court, John Rutledge of South Carolina was appointed to 
 succeed him. Rutledge's appointment was what might be 
 termed an untimely anticipation of a period not yet arrived. 
 So stanchly did Rutledge represent the interests of the large 
 Southern slaveholders that in the Federal Constitutional Con- 
 vention, he had to quote the words of a eulogist " stood 
 firm and unyielding to what he esteemed the substantial inter- 
 ests of his section of the country." 35 He had been one of the 
 delegates refusing to concede to the proposal for the immedi- 
 ate prohibition of the importation of negro slaves. " The peo- 
 ple of North Carolina, South Carolina and Georgia," he had 
 then declared, " will never agree to the proposed Constitution, 
 unless their right to import slaves be untouched." He had 
 finally acceded in the Convention, however, to the proposal 
 that the importation of slaves should not be prohibited prior 
 to the year i8o8. 36 
 
 But although representing the great slave-owning landed 
 proprietors of the South, Rutledge was not, at this juncture, 
 viewed with approval by the great landowners of the North, 
 
 34 After the death of his first wife, Webster married Catherine, 
 daughter of Herman Le Roy. This was the same Le Roy who, as de- 
 scribed in Chapter I, was one of tKose dispossessing settlers by securing, 
 in virtue of court decisions, great tracts of New York land obtained by 
 fraud and corruption before the Revolution. Le Roy was the founder 
 of the great commercial firm of Le Roy, Bayard and Company, trading 
 with many parts of North and South America. He was one of fifteen 
 men in New York City who, in 1815, could boast of owning a carriage. 
 As we have seen, Le Roy and Bayard were Jay's intimate business asso- 
 ciates as well as his friends, and we have quoted previously from Jay's 
 letter asking Cruger to let them share in a certain " golden plan " for 
 making " millions sterling " profits. 
 
 35 Van Santvoord's " Chief Justices," 194. 
 Madison Papers, Vol. Ill: 1536.
 
 FROM JAY'S RESIGNATION TO MARSHALL S ACCESSION 219 
 
 who by force of more numerical representation in the Senate, 
 dominated the Government. 
 
 Already, the great economic struggle between the two con- 
 flicting capitalist systems that of so-called free white labor 
 in the North, and that in the South of negro slavery had 
 begun. While the Southern capitalists were demanding that 
 the right to import slaves be continued, the Northern capi- 
 talists were, as we have seen, as early as 1775, deliberately 
 and with the most careful calculation, setting out to utilize 
 woman and child labor in factories, as a system, knowing it 
 to be cheaper than slave labor. 
 
 The conflict between these divergent systems had not, at 
 the time of Rutledge's appointment, widened into the threaten- 
 ing stage that it did later, when it became so acute that the 
 Southern slaveholders exerted every influence to dominate the 
 Government, especially the Supreme Court of the United 
 States. Rutledge, moreover, had made himself obnoxious to 
 the majority of the United States Senate by denouncing the 
 Jay treaty. This he opposed because it contained no provision 
 indemnifying slaveholders for negroes appropriated by the 
 British, and because that treaty would stop the exportation of 
 cotton. 
 
 The Senate rejected Rutledge's appointment. 37 For some 
 years his mind had showed symptoms of impairment ; when the 
 news of his rejection reached Rutledge, it totally gave way, 
 and he soon died. 
 
 Ellsworth Succeeds Jay as Chief Justice. 
 
 The appointment of Oliver Ellsworth, of Connecticut, as 
 Chief Justice of the Supreme Court of the United States, was 
 
 37 The appointment of Rutledge was a recess appointment. The note 
 in III Dallas' Reports, 121, reads: "A commission bearing date the 
 ist July, 1795, was read by which, during the recess of Congress, John 
 Rutledge, Esq., was appointed Chief Justice, till the end of the next 
 session of the Senate." Before the rejection of his nomination, Rut- 
 ledge presided as Chief Justice in the determination of at least one 
 case that of Talbot vs. Jackson.
 
 22O HISTORY OF THE SUPREME COURT 
 
 wholly satisfactory to both the landowning class, and to its 
 auxiliary outgrowth, the banking interest. The same Sen- 
 ate rejecting Rutledge's appointment hastened to confirm Ells- 
 worth's. He was commissioned Chief Justice on March 4, 
 1796. 
 
 Beginning as a rather obscure lawyer, Ellsworth had in- 
 gratiated himself into the favor of the Wolcotts, the Trum- 
 bulls and other powerful Connecticut families. Constituting 
 the coterie owning great landed estates in Connecticut, these 
 families had governed that Colony and State for generations 
 as though it were their private preserve. Like the Livingstons 
 in New York, they knew how to appropriate the highest official 
 positions for themselves, and retain them in the family circle. 
 As for Ellsworth, he had married into the Wolcott family, and 
 became a man of notable fortune. 
 
 As a member of the Continental Congress, Ellsworth had 
 been one of the group promoting the chartering of Morris' 
 Bank of Pennsylvania. Serving as the chairman of the com- 
 mittee of the Continental Congress reporting in the matter, 
 Ellsworth was, according to his eulogist Van Santvoord, one 
 of Morris' " most ardent and efficient coadjutors." Conspicu- 
 ous in the Continental Congress in pushing the original charter 
 of the Bank of North America, Ellsworth was not unaware 
 of the quick- following frauds; and when James Wilson 
 proposed that ingenious constitutional clause of his, Ellsworth 
 knew to an accuracy what it really meant and how it would 
 be applied, not less so than Wilson, Clymer, Fitzsimmons, 
 Gouverneur Morris and his partner Robert Morris, four of 
 whom, as we have seen, were openly associated with that bank, 
 and one indirectly. In that convention Ellsworth, be it said to 
 his credit, made no effort to disguise his real attitude ; he was 
 one of the boldest in implying his contempt for the people, and 
 in urging the policy of deluding the people with a sop. He 
 favored a yearly election for members of the House of Rep- 
 resentatives ; the people, he said, were fond of frequent elec-
 
 FROM JAY'S RESIGNATION TO MARSHALL S ACCESSION 221 
 
 tions, and might safely be indulged in one branch of Con- 
 gress. 38 
 
 In the Connecticut Convention, called to decide upon the 
 Constitution, Ellsworth argued strenuously for its adoption. 
 He and Oliver Wolcott (whose later Merchants' Bank and 
 Bank of America charters were obtained by bribery, as already 
 noted) served together on the Commission to settle the claims 
 of Connecticut against the Federal Government. Both were 
 concerned, too, in that fraudulent disposition by Connecticut 
 of its great area of land in Ohio. 
 
 Ellsworth had long been one of the most powerful politicians 
 in Connecticut, as well at the same time as in the National 
 Government. He had been an Attorney-General of Connecti- 
 cut. From 1780 to 1784 he had been a member of the Gov- 
 ernor's Council, and from 1784 to 1789 one of the judges of 
 the Supreme Court of Connecticut. As a United States Sena- 
 tor he was a member of the select committee to which Hamil- 
 ton's refunding plan was referred, and was one of the most 
 active supporters of that scandalous scheme. He, also, was 
 on the select committee which reported favorably on Hamil- 
 ton and Morris' plan for the incorporation of the Bank of 
 the United States. When the question came up in Congress 
 as to the proper title for the President of the United States, 
 Ellsworth was a member of a committee of three of the Senate 
 reporting that the President ought to be addressed as, " His 
 Highness, the President of the United States and Protector 
 of Their Liberties." 30 This proposed title, so strongly smack- 
 ing of monarchism, was rejected by the House of Representa- 
 tives. It is written of Ellsworth that he acquired a degree of 
 wealth " at that time rare in Connecticut." 
 
 Ellsworth remained Chief Justice for a few years only; 
 and were it not that he handed down opinions deciding that 
 debts due to British subjects were recoverable, hardly any- 
 
 38 Madison Papers, Vol. II : 846 and 929. 
 
 39 Van Santvoord, p. 226.
 
 222 HISTORY OF THE SUPREME COURT 
 
 thing that he otherwise did was considered worthy of citation. 
 In the annals of legal lore he occupies an obscure posi- 
 tion, possibly, for one strong reason, because of the over- 
 shadowing vital contrast afforded by his successor's masterful 
 ability, performances and long reign. 
 
 Bushrod Washington's Appointment. 
 
 Of the two appointments as Associate Justices made by 
 President John Adams those of Bushrod Washington and 
 Alfred Moore one is deserving of particular note. 
 
 Adams was an extremely rich man ; his private income was 
 reputed to be $25,000 a year, which, at that time, was re- 
 garded as something enormous. In his reverence for wealth, 
 and his class distrust of the " lower orders," Adams was out- 
 spoken to a point approaching what his enemies viewed as the 
 very extreme of bigotry. 
 
 But this charge was not well founded. Adams simply 
 voiced with honest belief the views held by his whole class, 
 and demanded by their interests; where Hamilton in Adams' 
 position would have cautiously and unctuously cajoled the 
 public, Adams threw calculating tact aside. Appointing cor- 
 rupt men to office, conniving at the most colossal frauds and 
 thefts when committed by members of his class, Adams was 
 an ideal head for a government run by capitalists for capital- 
 ists. In the dull chronicles of the usual historical weaving, 
 Adams has had to bear the odium of the disgraceful Alien 
 and Sedition law, the real purpose of which was to stifle lib- 
 erty of speech and of press. But the actual authors of this 
 law were the landholders and other associated politico-capi- 
 talists obtaining huge areas of public land by fraud, and 
 scheming either to have confiscated estates vested in them- 
 selves or in their immediate connections. 
 
 These men naturally objected to the caustic diatribes against 
 their meditated alliance with the British governing class with 
 the object of putting down the French Revolution. They were
 
 FROM JAY'S RESIGNATION TO MARSHALL S ACCESSION 223 
 
 savagely upset by the biting exposure of their great frauds, 
 either accomplished or projected. In these frauds nearly 
 every member of the Cabinet and 'Senate had a hand as also 
 many members of the House of Representatives. The claim 
 for more than 11,000,000 acres of the 35,000,000 acres ob- 
 tained by that grant bribed through the Georgia Legislature 
 m J 795> was held by Adams' Massachusetts friends; and, as 
 we shall see, Adams' son, John Quincy Adams, was one of 
 the attorneys who later successfully argued that claim to a 
 validation through the Supreme Court of the United States. 
 This validation (to repeat) was based upon the plea that the 
 Georgia rescinding act was in violation of the Constitutional 
 clause forbidding any State to pass laws impairing the obliga- 
 tion of a contract. 
 
 As we have seen in Chapter IV, Wilson supplied by far 
 the greater part of the funds for the securing of the bribed 
 grant of 35,000,000 acres of land. At Justice Wilson's death, 
 President Adams appointed Bushrod Washington, an Asso- 
 ciate Justice of the Supreme Court. Bushrod Washington, 
 as we have told, had been placed by his 'uncle, George 
 Washington, in Wilson's office to study law, and had been 
 associated in that capacity with Wilson during the very 
 period when Wilson was engineering his Bank of North Amer- 
 ica transaction. He had inherited George Washington's 
 Mount Vernon estate. All of the other Justices of the Su- 
 preme Court of the United States were well advanced in 
 years, but Bushrod Washington was only thirty-six years old 
 at the time of his being commissioned Associate Justice. 40 
 The Supreme Court's obituary on his life, published in 1830 
 as a preface to the third volume of Peters' Reports, narrates 
 
 40 By reason of excessive study, Bushrod Washington became blind 
 in one eye. In stature he was insignificant, and he was negligent in 
 dress. He was immoderately addicted to snuff taking. Withal, he was 
 the most punctilious stickler for forms and etiquette. He was said to 
 have remained, on one occasion, sixteeft hours at a stretch on the 
 Supreme Court Bench.
 
 224 HISTORY OF THE SUPREME COURT 
 
 the fact that Bushrod Washington had been placed by General 
 Washington in the office of James Wilson to study law, and 
 it further relates that Bushrod Washington was a great friend 
 of John Marshall and had "commenced his intimacy and 
 friendship with Mr. Chief Justice Marshall" when he (Bush- 
 rod Washington) was a student at William and Mary College. 
 What exact and intimate connection these facts had in view 
 of subsequent memorable decisions of the Supreme Court of 
 the United States, we do not profess to judge; but these are 
 the facts, and their significance is self-evident. 
 
 The Federalists Go Out of Power. 
 
 With the election of Jefferson, in 1800, the Federalists 
 seemed swept out of power. Many causes conspired to bring 
 about this great political change. The small merchants and 
 petty shopkeepers, aiming at an unrestricted field for their 
 own economic advancement, revolted against government by 
 the large landholding families. Instead of the old hereditary 
 aristocracy, . based upon large possessions of land, the time 
 was ripening for a newer aristocracy of money derived from 
 industrial establishments and transportation as well as from 
 land. On the other hand, the time was not propitious for the 
 carrying out of the Federalist doctrine of concentration of 
 powers in the National Government ; the country was vast, 
 communication was difficult and slow, and the two great con- 
 flicting economic systems of North and South were silently 
 but more -intensely clashing. 
 
 Such portions of the working class as had the right to vote 
 enthusiastically supported the Republicans or Anti-Federal- 
 ists, believing that the defeat of the Federalists meant a death 
 blow to aristocracy. They did not see that a vastly more 
 powerful industrial and transportation aristocracy would take 
 the place of the old feudal aristocracy. Lastly there were 
 dissensions within the ranks of the Federalists themselves.
 
 FROM JAY'S RESIGNATION TO MARSHALL'S ACCESSION 225 
 
 The great landholders, bent upon annihilating both the in- 
 fluence and results of the French Revolution, were determined 
 upon a bitter war with France, and an alliance with England. 
 But President John Adams, whose interests and traditions 
 lay more with the shippers than with the landholders, wanted 
 no war ; this attitude caused a wide breach between the Adams 
 and the Hamilton factions. 
 
 Pack the Courts Before Going. 
 
 The Republicans 41 believed they now had a clear field of 
 power. The Federalists, however, proceeded to execute into 
 law a piece of strategy by which they were able to outgeneral 
 their opponents, and retain practical power. The Republicans 
 had the administrative offices, and a majority of the Legisla- 
 tors, but the crucial question was as to which side would con- 
 trol the judiciary. 
 
 This fact both parties thoroughly appreciated. They knew 
 that the courts before, and during, the Revolution had gone 
 to lawless lengths in doing as they willed. They knew that 
 the courts had already, unquestioned, set aside acts of legis- 
 latures as null and void, and that they would and could do 
 so again with acts of both legislatures and Congress. They 
 knew that the courts were the prime instruments for sanction- 
 ing the acts of the ruling class, and that with judicial prece- 
 dents already built up, and more that could be added, theories 
 of law could be devised to suit any exigency. Theoretically, 
 the three departments of governments each held coordinate 
 jurisdiction, but this was merely a pleasant fiction. The courts 
 were the real masters of destinies. 
 
 In the last days of their power, the Federalists passed a 
 
 41 Again it should be pointed out that the Republican Party of that 
 time is not the Republican Party of the present. The Republican Party 
 of Jefferson's day developed into the Democratic Party. Thus, Tam- 
 many Hall still flaunts its campaign inscription : " Democratic-Re- 
 publican Candidates." The Republican Party of these times is the 
 descendant of the Federalist Party.
 
 226 HISTORY OF THE SUPREME COURT 
 
 new judiciary act, creating a series of new courts, and nearly 
 three-score new judges. The most important post in the 
 whole government, however, was that of Chief Justice of 
 the Supreme Court of the United States. The President 
 lasted for four, perhaps eight, years in office; the Chief Jus- 
 tice held office for life. The President could recommend 
 laws; the Chief Justice could arrogate the sovereign power 
 (two members of the Supreme Court agreeing with him) of 
 abolishing laws with a stroke of the pen, or virtually making 
 laws far more binding than legislative law. 
 
 But the straining of both political parties for the control 
 of the judiciary was, judging by fundamentals, merely a 
 shallow conflict. This was later lucidly proved when Jus- 
 tices of both political stripes stood together in validating 
 immense land frauds and the fraudulent recovery of confis- 
 cated estates, and in the twisting and kneading of the Con- 
 stitution to accord with particular or general interests of 
 each succeeding dominant division of the capitalist class, in 
 the declaration of perpetual vested private and corporate 
 rights, and in the continuation of chattel slavery. Quite true, 
 differences were revealed among various Justices over the 
 question of State's rights versus consolidation of power in 
 the National Government. But those differences exactly re- 
 flected the contentions prevailing at the particular time be- 
 tween capitalists of different sections. 
 
 All of the Justices, to whichever political parties they be- 
 longed, to whatever source they owed their appointment, be- 
 lieved in the domination of government by property for prop- 
 erty, although while most of them believed that this rule 
 should be of the large propertied interests, a few there came 
 who held that the middle-class property element should hold 
 the power. But all were agreed upon the main point of 
 straining every interpretation and construction for the benefit 
 of property, even though there came times when a minority 
 Justice, or perhaps others with him, refused to concur in some
 
 FROM JAY'S RESIGNATION TO MARSHALL'S ACCESSION 227 
 
 notorious decision handed forth by the majority. All, by 
 their consistent actions, evinced irrefutable bias in favor of 
 established conditions, so far as they applied to the general 
 repression of the workers, and all were class prejudiced against 
 any attempt of the working class to improve its conditions, 
 and shake off the yoke of the oppression of numberless cen- 
 turies. 
 
 A little while before leaving office, President Adams, on 
 January 31, 1801, appointed John Marshall to be Chief Jus- 
 tice of the Supreme Court of the United States. Jefferson, 
 who came from the same State as Marshall, and who was 
 thoroughly conversant with his career and mentality, de- 
 plored the appointment as a public calamity. Toward Adams 
 and others, Jefferson entertained a bitter enough hatred, but 
 when Jefferson was extremely old and after he had forgiven 
 all of his other foes, Marshall was the one man whom he 
 could not bring himself to forgive. 
 
 All of Jefferson's political ideas, ideals and plans were up- 
 set and uprooted by Marshall's decisions, which forced into 
 practice the very opposite of Jefferson's doctrines. We who 
 have the advantage of retrospection may look back and, un- 
 derstanding the course of industrial progress, may see that in 
 that particular respect, Jefferson was in error. For the next 
 thirty-four years, Marshall was, in point of actual sovereignty, 
 the ruler of the United States, and by force of decisions 
 handed down by him, has, it may be safely said, ruled the 
 courts (which rule the United States) ever since. Marshall's 
 appointment signified the unrestricted development of pri- 
 vate corporate institutions and power, which was an inevitable 
 stage in the progress of society.
 
 CHAPTER VI 
 THE AUTHENTIC JOHN MARSHALL 
 
 Of all of the Chief Justices of the Supreme Court of the 
 United States, John Marshall, in reputation, biographical lore, 
 and tradition has stood out fixedly as the most illustrious. 
 Certain fervent writers have even classed him as of the three 
 greatest men that America has produced, ranking with Wash- 
 ington and Lincoln. A multitude of eulogists have acclaimed 
 him as one of the very foremost jurists of all ages, the 
 quintessence and apogee of exalted judicial wisdom and virtue. 
 Long since, it became the settled fashion in particular quar- 
 ters to reverence Marshall's very memory. But it has been re- 
 marked that this continuous laudation has singularly failed 
 to touch and move the popular mind. Of other heroes, war- 
 rior and political, the people at large know, but they seem to 
 lack all due appreciation of judicial heroes, and go their way 
 caring nothing. 
 
 If to the unerudite run of people the name of John Mar- 
 shall carries little, and means less, it signifies much to the 
 aristocracy, or let us say, the oligarchy of wealth. Justly 
 so to that highly conscious class, which always well rewards 
 and honors its apostles and servers, the deeds and services 
 of John Marshall stand out with a halo of dazzling great- 
 ness. To them, Marshall is the greatest of the great among 
 judges. 
 
 In appearance he did violence to the prescribed fastidious 
 apparel of awe with which a judge was expected to invest him- 
 self. He was careless, even sloven in his dress, looking more 
 like a countryman than a jurist, often taking his seat on the 
 Supreme Court bench with burrs sticking to his clothes - 
 
 228
 
 THE AUTHENTIC JOHN MARSHALL 22Q 
 
 yet these were but trivial peccadillos of no disparaging con- 
 sequence. 1 True, in his own day, this absence of gowned 
 dignity and stiff decorousness was animadverted upon by the 
 devotees of aristocratic elegancy, who would have preferred 
 to disseminate the idea of an awesomely-raimented Chief 
 Justice. That, too, he frolicsomely pitched quoits, read nov- 
 els ceaselessly and even went to market with a basket on his 
 arm this did not seem to comport with the stern, lofty 
 dignity of his unapproachable office. But these minor things 
 have all receded into the obscurity of time, although (what 
 his critics overlooked) they well served their purpose of im- 
 parting an air of democratic simplicity to Marshall while, 
 in works, he was laying the bulwarked foundations of an era 
 of unrestricted capitalist development. And it is because of 
 those works that the men of capital to-day so readily pro- 
 nounce his incomparable excellence of greatness. 
 
 His Early Life. 
 
 Born in Fauquier County, Virginia, in the year 1755, John 
 Marshall was the oldest of a family of fifteen children. His 
 father, Thomas Marshall, was a planter of some slight for- 
 tune, and for a long time was surveyor and superintendent 
 for that considerable part of Lord Fairfax's estate in the 
 Northern Neck of Virginia. At one time the extent of this 
 estate comprised twenty-one counties, or more than five mil- 
 lion acres. In Chapter I we have related the facts as to the 
 
 1 Of his personal appearance, William Wirt wrote : 
 
 " He is tall, meager, emaciated ; his muscles relaxed, and his joints 
 so loosely connected as not only to disqualify him apparently for any 
 vigorous exertion of body, but to destroy everything like harmony in 
 his air or movements. Indeed, in his whole appearance and demeanor 
 dress, attitudes, gesture, sitting, standing or walking he is as far 
 removed from the idolized graces of Lord Chesterfield as any other 
 gentleman on earth." When holding his circuit court in Virginia, it 
 was Marshall's habit to travel in an antiquated and rather disreputable 
 gig. To those who did not know him as the famous Chief Justice, his 
 shabby dress and idiosyncracies of personality frequently led to queer 
 misunderstandings.
 
 230 HISTORY OF THE SUPREME COURT 
 
 origin of the great Fairfax estate, and described how on 
 one occasion Lord Fairfax fraudulently conveyed a tract of 
 300,000 acres to his nephew and agent, Thomas Bryant Mar- 
 tin, 2 who at once reconveyed them to Fairfax. Of the laws 
 then prevailing in Virginia, we have given ample details in 
 Chapter II. To recapitulate, they were laws made by the 
 manorial lords and planters exclusively for their own pur- 
 poses and benefit, and drafted with great severity for the 
 chattel enslavement of the negro, and for the practical en- 
 slavement of the white laborer. There was hardly a vestige 
 of a middle class during that time, so that John Marshall's 
 father and the whole Marshall family belonged by interest 
 and attachment to the landed aristocracy. 
 
 This was the environment in which John Marshall was 
 born, and which he imbibed during his most sensitive years. 
 One has only to read the various addresses and petitions to the 
 proprietary manorial lords to know the immense humility and 
 obsequiousness with which those eminences were treated. To- 
 wards Lord Fairfax, his employer, Thomas Marshall assumed 
 and felt an unvarying deference, not by any mea.ns like the 
 abject servility expected from the " lower orders," but still 
 of a servile character customary from servitor and employe. 
 Of all of Thomas Marshall's sons, John, being the oldest, 
 was most imbued with the pervading caste ideas. He took 
 off his hat humbly to Lord Fairfax and regarded his title, 
 position and power with vast respect. For slave and laborer, 
 his feeling was that of the prevailing aristocratic contempt. 
 He looked upon them as the natural drudges for the aris- 
 tocracy, to be held in their places and bonds by the strictest 
 laws. 
 
 Unlike many other youths of their class, John Marshall 
 and his brothers were not sent to private schools in their in- 
 cipiency. Their father engaged a tutor to take their edu- 
 
 2 In Washington's Va. Reports, Vol. 1 : 227, the name is given as 
 Bryant Martin ; in all other court reports it is given in full as Thomas 
 Bryant Martin.
 
 THE AUTHENTIC JOHN MARSHALL 23! 
 
 cation in hand at home. The consequence was that in their 
 most impressionable years they iemained cloistered in a nar- 
 row, caste atmosphere which sank deep. But, on the other 
 hand, this personal, concentrated paternal supervision had 
 the effect of developing certain mental qualities and marked 
 individual characteristics so often suffering when children are 
 educated in mass in the undiscriminating pedantry of class- 
 rooms. It was not until John was past fourteen years of age, 
 that he was put in Rev. Mr. Campbell's school in Westmore- 
 land County. When eighteen years old, he began his legal 
 studies, and at the outbreak of the Revolution he enlisted in 
 the Continental army. In 1780 he was admitted to practice 
 at the bar. 
 
 His career from thence was partly that of engaging in 
 politics, for which he had a precocious natural capacity, and 
 in part that of a practising lawyer. When twenty-seven years 
 old he was elected to the Virginia House of Delegates, and 
 at the same time was appointed a member of the Virginia 
 Council of State. Marrying a daughter of Ambler, the Vir- 
 ginia State Treasurer, in 1783, he removed to Richmond, but 
 still was reelected to the Legislature from Fauquier County, 
 and then Henrico County. He continued in the Legislature 
 until 1789. Hamilton's influence upon Marshall was very 
 considerable; and, as a member of the Virginia Convention 
 called to ratify or reject the Constitution, Marshall was con- 
 spicuously zealous in pushing its adoption. 
 
 Attorney for the Fairfax Estate. 
 
 As a lawyer, Marshall's specialty was landed estates; he 
 represented the Fairfax interests, 3 and was attorney for other 
 
 3 For example: Lord Fairfax, in 1741, sold 243 acres to James Crap. 
 Claiming that Crap did not pay the office fees, Fairfax declared the 
 land forfeited. In 1780, Fairfax, through his agent, sold the same land 
 to Martin Pickett. Crap's assignee and Pickett contested for title to 
 the land. John Marshall, as Pickett's attorney, won the case. Chief 
 Justice Edmund Pendleton delivered the court's opinion,
 
 232 HISTORY OF THE SUPREME COURT 
 
 British claimants in other cases. More than this; he was ex- 
 tremely ambitious to possess the Fairfax estate for himself, 
 but there were many obstacles to be encountered. What they 
 were, how he gradually and persistently overcome them by 
 a series of adroit tactics, and how his securing of the Fairfax 
 estate was the actual and predominating motive underlying, 
 when he was Chief Justice, one of the most important de- 
 cisions affecting constitutional law ever handed down by the 
 Supreme Court of the United States all of these facts are 
 herewith duly narrated in consecutive order. 
 
 Lord Fairfax's entire estate had been confiscated ^during the 
 Revolution by the Virginia General Act of October, 1777, which 
 sequestered all of the property and estates of British sub- 
 jects. But the legal ingenuity of which Jefferson writes, was 
 silently at work. 
 
 In May, 1779, an act was passed by the Virginia Legislature 
 for the apparent purpose of establishing a land office, and as- 
 certaining the terms and manner of granting waste and un- 
 appropriated lands. In the act, unnoticed except by those in- 
 terested, was this clause : " And that the proprietors of land 
 within this commonwealth, may no longer be subject to any 
 servile, feudal or precarious tenure; and to prevent the dan- 
 ger to a free state from perpetual revenue ; Be it enacted, 
 That the royal mines, quit rents, and all other reservations 
 and conditions in the patents or grants from the crown of 
 England, under the former government, shall be, and are 
 hereby declared null and void; and that all lands, thereby re- 
 spectively granted, shall be held in absolute and unconditional 
 property, and to all intents and purposes whatsoever, in the 
 same manner with the lands hereafter to be granted by the 
 commonwealth, by virtue of this act." 4 What this clause 
 really did was to relieve the proprietors of all rents and other 
 conditions, and at the same time admit of a construction by 
 which title to their lands was absolutely confirmed. The se- 
 
 4 See, " Virginia Revised Statutes of 1783," Chap. 13, Sec. 6, p. 98.
 
 THE AUTHENTIC JOHN MARSHALL 233 
 
 cret agents of the royalist proprietors had done a fine stroke 
 in getting that act passed. 
 
 Evidently, Lord Fairfax knew precisely the meaning of the 
 act; before his death in December, 1781, he left the whole 
 of his estate to his nephew, Denny Martin or Fairfax. This 
 nephew had been born in England about the year 1750, lived 
 there, and remained a British subject. The younger brother 
 of Denny Fairfax was Thomas Bryant Martin, who was a 
 citizen of the State of Virginia, and was, as we have seen, Lord 
 Fairfax's agent and instrument. 
 
 The Doctrine of Acquiescence. 
 
 For many years the title to certain of Fairfax's estate had 
 been contested by Kite and M'Coy under a grant to them which 
 we have described in Chapter I. The suit of Kite and others 
 against Fairfax and others came up before the Virginia Court 
 of Appeals, in May, 1786. John Marshall appeared as the 
 attorney for the Fairfax claim. For Kite and others, John 
 Taylor, their attorney, began with the point that Fairfax's 
 title was deficient and fraudulent; that the original proprie- 
 tary grant to Fairfax had been made by Charles II while a 
 fugitive, and that James II, in the fourth year of his reign, 
 but after he (James) had been driven off the throne by a 
 Revolution, had confirmed it. 5 
 
 In reply, John Marshall made his principal point a doctrine 
 which, when he was only thirty-three years old, we thus see 
 him advancing, and which same redoubtable doctrine of ac- 
 quiescence he later, as Chief Justice of the United States, made 
 the foundation for perpetuating chattel slavery and all man- 
 'tier of oppressions. It was a doctrine that, for like pur- 
 poses, has been used by the courts ever since, so that as law is 
 now construed, it remains a fundamental and elastic method 
 of confirming the property, power and tyranny of one class, 
 and the helplessness of another. 
 
 & Call's Reports (Court of Appeals of Va.), Vol. IV: 66.
 
 J34 HISTORY OF THE SUPREME COURT 
 
 " The long and quiet possession of himself and his pred- 
 ecessors " (argued Marshall as to Fairfax) ; " the ac- 
 quiescence of the country; the several grants of the crown, 
 together with the various acts of the 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 
 not even to be attempted to be shaken. . . ." e This 
 seemed an ingenious argument, but the statements were not 
 true. Fairfax's claim had never been acquiesced in by Kite and 
 M'Coy, nor by the officials who gave them their contravening 
 grant. Marshall knew, too, that the Assembly acts were the 
 products largely of Fairfax himself who, with a few other 
 proprietaries, controlled that body. 
 
 It would seem self-evident that Governor Randolph of Vir- 
 ginia, in 1789, did not concede the claim of either Fairfax or 
 Kite, for on April 30 of that year Governor Randolph gave to 
 David Hunter, and his heirs forever, a grant of a part of that 
 very land, in exchange for a land office treasury warrant dated 
 January 23, 1788. 
 
 The Contest for the Fairfax Estate. 
 
 A hot contest now set in for the possession of the Fairfax 
 estate. Because of its arable soil valuable for tobacco grow- 
 ing, its timber and other resources, its accessibility, lying as 
 it did, on the Potomac River and other rivers, and its close 
 proximity to the newly-established site of the National Capital, 
 the prize was a rich one. In April, 1791, a declaration in 
 ejectment was served on the tenants in possession. This ac- 
 tion was brought in behalf of Hunter's grant. The Winches- . 
 ter district court admitted Denny Martin (otherwise Denny 
 Fairfax) to defend the suit. It was action specifically for 
 788 acres of land in Shenandoah County. 7 
 
 6 Call's Reports, Vol. IV: 60. 
 
 7 See, Munford's Reports (Supreme Court of Appeals of Va.), Vol. 
 1 : 218.
 
 THE AUTHENTIC JOHN MARSHALL 235 
 
 But the claim, as set up by the heir of Fairfax, covered 
 about three hundred thousand acres of land in the Northern 
 Neck of Virginia, and the real contention revolved around 
 the point of whether Denny Fairfax, as Lord Fairfax's heir, 
 had any claim whatever on an estate supposed to have been 
 confiscated. The State of Virginia denied first, that Lord 
 Fairfax had ever got this estate lawfully, or by legitimate 
 methods; second, it asserted that the estate had been con- 
 fiscated; third, it claimed that as an alien, Denny Fairfax 
 could not hold lands. In opposition to these arguments, Mar- 
 shall used much the same arguments that he had employed 
 in the case of Kite vs. Fairfax. The court, in this case, de- 
 cided in favor of Fairfax ; as to the special circumstances lead- 
 ing to this decision, there are many obscurities in the avail- 
 able records, and the explanation cannot be extracted. 
 
 But the next step in the proceedings is incontestably clear. 
 Presently it turned out that Marshall himself and his brother 
 James had bought out Denny Fairfax's claims to the Fair- 
 fax estate in Virginia. This was considered news of the first 
 importance in that State. That the purchase took place so 
 soon after the drafting of Jay's Treaty was looked upon as 
 signifying that if fresh assaults were made upon Fairfax's 
 title, the claimants could fall back upon the provisions of that 
 treaty as an additional ground for validation of their title. 
 This coincidence of John Marshall's buying the Fairfax claim 
 with the signing of Jay's Treaty was a matter of invidious 
 comment. John Marshall's agent was his brother James Mark- 
 ham Marshall, also a lawyer, who personally negotiated in 
 England with Denny Fairfax for the purchase of the Fair- 
 fax claim, for his brother John and himself. And, as show- 
 ing the interconnection of landed interests, it may here be 
 remarked that, in 1795, James Markham Marshall married 
 Hester, daughter of Robert Morris, who at this time was en- 
 gaged, as we have seen, in such enormous land transactions 
 with Justice James Wilson and others.
 
 336 HISTORY OF THE SUPREME COURT 
 
 Marshall Defends Jay's Treaty. 
 
 While James Markham Marshall was transacting this busi- 
 ness in England, John Marshall was industriously advocat- 
 ing Jay's Treaty in Virginia. Its adoption meant much to 
 him. He was the attorney for British claimants. His get- 
 ting possession of the Fairfax estate, he astutely knew, hung 
 much upon the ratification of that treaty. Both Hunter and 
 the State of Virginia were pressing new litigation against 
 any validation of the confiscated Fairfax estate. As an acute 
 lawyer, Marshall was well aware of the full import of the 
 provisions of Jay's Treaty, and to what extent they could 
 be used in the courts for the restoration of confiscated es- 
 tates. The Fairfax claim up to date had been at best, he 
 knew, a shaky one, extremely unpopular, and kept alive by 
 legal ingenuity and sophistry. 
 
 " The great question of the day," says a eulogist of Mar- 
 shall, " was the adoption of Jay's Treaty with Great Britain. 
 In Virginia, a bitter opposition assailed the treaty, and the 
 entire State rang with denunciations of it. Even the influ- 
 ence of Washington was powerless to stay the tide of popu- 
 lar passion excited against the treaty, and those who upheld 
 it. Meetings were held in Richmond, and the treaty was 
 fiercely denounced. Marshall now came to the rescue, and 
 before a meeting of the citizens of that place made such an 
 unanswerable argument in favor of the treaty, that the men 
 who had been foremost in assailing it now united in the adop- 
 tion of resolutions indorsing the policy of the Administra- 
 tion. In the Legislature his efforts were equally successful, 
 and the opponents of the Administration were forced to aban- 
 don their constitutional objections to the treaty, and to con- 
 tent themselves with a simple denial of the expediency of the 
 measure at that time." 8 
 
 Houghton goes on to say that " President Washington at- 
 
 8 Houghton's " Lives," etc., 443-444.
 
 THE AUTHENTIC JOHN MARSHALL 237 
 
 tached so much importance to these services that he offered to 
 his old friend and comrade the position of Attorney-General 
 of the United States, but Marshall declined the offer, as he 
 wished to devote himself to his practice, which had now be- 
 come very lucrative. He continued to sit in the Legislature, 
 which did not interfere with his private business, and re- 
 mained the constant and vigilant friend of Washington's Ad- 
 ministration. In 1796, he was offered the post of Minister 
 to France, as Mr. Monroe's successor, but declined it for 
 the same reason which made him refuse the Attorney-General- 
 ship." 9 
 
 The real reason why John Marshall wanted to remain in 
 Virginia was certain pressing business concerning the Fair- 
 fax estate that he was consummating in the Virginia Legis- 
 lature. To that body he was again elected in 1795. The 
 action on the part of Marshall and other claimants for " Leeds 
 Manor," was being sedulously pressed in the courts. 
 
 Had the outlook been good or even passable, Marshall was 
 the very last who would have listened to compromise. It 
 was tolerably clear that Denny Fairfax, as an alien, could 
 neither hold nor convey escheated land. Aside from the 
 purely legal aspects, popular sentiment was greatly stirred at 
 the sight of aliens who had become enemies of the American 
 Revolution obstinately asserting their rights to land which, 
 according to common understanding, had been definitely con- 
 fiscated. If Marshall could get a Legislative act specifically 
 expunging the escheat or forfeiture, that would go far to- 
 ward establishing his project of recovery. That is what he 
 now did. 
 
 We shall relate the successive steps as they appear on the 
 records. The action of Hunter vs. Fairfax's Devisee was in 
 some form before the Supreme Court of the United States 
 in 1796. It would seem that this was an appeal from the 
 decision of the Virginia court in favor of Fairfax, for Hun- 
 
 o Ibid.
 
 238 HISTORY OF THE SUPREME COURT 
 
 ter was now the plaintiff in error. On July 29, 1796, the 
 Clerk of the Supreme Court of the United States received 
 a letter from Hunter saying that Campbell, his attorney to 
 argue the case, had died in Richmond on July 18, 1796, and 
 praying for a postponement of the cause until the next term. 
 This request was opposed by Lee and Ingersoll, attorneys for 
 Fairfax's Devisee. But the Supreme Court granted the ap- 
 plication, 10 and the case did not again come up before it until 
 fourteen years later. The reasons why will duly appear. 
 
 Announces His Purchase of the Fairfax Claim. 
 
 Petitions were concocted, and the Virginia Legislature was 
 manipulated to pass a resolution to the effect that if the devi- 
 sees of Lord Fairfax, or their claimants, would relinquish 
 all claims to lands supposed to lie within the Northern Neck, 
 which lands were waste and unappropriated at the time of 
 the death of Lord Fairfax, then the State of Virginia would 
 relinquish all claims to any lands specifically appropriated 
 by Lord Fairfax to his own use either by deed or actual sur- 
 vey. 11 This resolution was put forward as a measure de- 
 signed to compromise the controversy. . 
 
 Having lobbied the resolution of compromise through the 
 Legislature, John Marshall then formally accepted the prop- 
 osition in this letter: 
 
 " Richmond, November 24th, 1796, Sir, being one of the 
 purchasers of the lands of Mr. Fairfax, and authorized to 
 act for them all, I have considered the resolution of the Gen- 
 eral Assembly on the petitions of sundry inhabitants of the 
 counties of Hampshire, Hardy and Shenandoah and have 
 determined to accede to the proposition it contains. So soon 
 as the conveyance shall be transmitted to me from Mr. Fair- 
 
 10 Dallas' Reports, Vol. Ill: 305. In a footnote, Justice Chase said 
 that the matter was "of great moment; and ought to be deliberately 
 and finally settled." 
 
 11 "Revised Code of the Laws of Virginia" (Edition of 1819), Vol. 
 I: 352.
 
 THE AUTHENTIC JOHN MARSHALL 239 
 
 fax, deeds extinguishing his title to the waste and unappropri- 
 ated lands in the Northern Neck shall be executed, provJded 
 an act passes during this session, confirming on the execution 
 of such deeds, the title of those claiming under Mr. Fairfax, 
 to lands specifically appropriated and reserved by the late 
 Thomas Fairfax, or his ancestors, for his or their own use. I 
 remain, Sir, with much respect and esteem, your obedient serv- 
 ant, John Marshall. The Honorable, the Speaker of the 
 House of Delegates." l - 
 
 Accordingly, on December 10, 1796, the Virginia Legis- 
 lature passed an accommodating act. In the face of the in- 
 tense public opposition to resurrecting the titles (and fraud- 
 ulent titles at that), of aliens to confiscated estates, the 
 Legislature dared not specifically say that aliens could hold 
 and convey lands. 
 
 But the act circumvented that delicate point by removing 
 the disabilities of the forfeiture. It innocently began assert- 
 ing the right of the Commonwealth of Virginia to the lands 
 of the alien, Denny Fairfax. Then it recited the terms of 
 the previous compromise resolution, and gave the full text of 
 Marshall's letter of acceptance. The enacting clauses follow- 
 ing declared that if those conditions were carried out by a 
 specific agreement, then Denny Fairfax, or those claiming 
 under him, and their heirs, should hold the land in question 
 "as if he, the said Denny, had been a native citizen of this 
 Commonwealth, and as if no escheat or forfeiture had ever 
 taken place." The act, however, contained a final clause re- 
 serving to all persons, other than the Commonwealth, any 
 right or equity they might have in the Northern Neck lands. 13 
 
 The law raised a considerable popular commotion, coming, 
 as it did, at a time when great numbers of the Revolutionary 
 
 12 Ibid., 353. This letter is given precisely as it appears in the records. 
 See, also, " The Statutes At Large of Virginia, etc., 1792 to 1806," Vol. 
 II : 22-23. 
 
 13 " Revised Code of the Laws of Va." (Edition of 1819), Vol. 1 : 353, 
 and "The Statutes At Large of Va., etc., 1792 to 1806," Vol. II: 23.
 
 240 HISTORY OF THE SUPREME COURT 
 
 veterans had been defrauded of their land warrants by cliques 
 of powerful politicians, and when settlers everywhere were 
 intensely aroused over the appropriation and monopolization 
 by the politico-capitalists of tens of millions of acres of the 
 best and most accessible land. In the severe criticisms made, 
 it was pointed out that the patriots who had fought the Rev- 
 olution could not obtain land, while aliens, enemies and trait- 
 ors like Fairfax could get a special law abolishing all penalties 
 of forfeiture. But, after all, the law -was not directly for 
 Fairfax's benefit; it was for John Marshall's, although the 
 one received the benefit of the purchase price, and the other 
 the estate. Influenced by hostile public sentiment, the State 
 officials balked at enforcing the act, whereupon, on December 
 22 and 23, 1797, the Legislature formally requested the Gov- 
 ernor of Virginia to carry the law into effect. 
 
 A Competitor Brings Legal Action. 
 
 Instead of this law compromising the controversy, still 
 fiercer litigation resulted. Hunter was determined to keep 
 his grant, and Marshall to gain the estate an estate not only 
 valuable commercially, but sentimentally endeared to Mar- 
 shall by the memories of the youthful days spent on it, when 
 his father had been its superintendent. 
 
 Actions and counter suits kept the courts busy. It has not 
 been possible to ascertain all of the intermediate circum- 
 stances between the time the compromise act was passed, 
 and the time, in 1810, when the case of Hunter vs. Fairfax's 
 Devisee came up on appeal before the Supreme Court of 
 Appeals of Virginia. Frequently, the formal court records 
 of those days lack a statement of the case, and simply make 
 fleeting references in decisions to prior proceedings. Thus, 
 we learn from Judge Roane's decision, in the Supreme Court 
 of Appeals, in 1810, that Marshall, as one of the purchasers 
 of the Fairfax claim, had availed himself of the compromise 
 law by " reversing two judgments in favor of the Common-
 
 THE AUTHENTIC JOHN MARSHALL 24! 
 
 wealth of Virginia, on the loth of October, 1798, a record of 
 which is before me." 14 But what those judgments were, was 
 not explained. Judge Roane also strongly denounced the 
 " said purchasers," for having availed themselves, on the one 
 hand, of the benefits of the compromise act, while on the other, 
 refusing to submit to such of its provisions as conflicted with 
 their purposes. 15 
 
 It would plainly appear from Judge Roane's decision that 
 in violation of the explicit terms of the compromise law, Mar- 
 shall set up claims to lands which he had expressly renounced 
 in agreeing to the compromise. And apparently this move 
 was taken under the provisions of Jay's Treaty, doubtless 
 upon the grounds advanced by Marshall later that Fairfax's 
 estate had never been specifically confiscated ; that the whole 
 of it was therefore vested in his heir, Denny Fairfax ; and 
 that inasmuch as Jay's Treaty provided for the payment of 
 debts due to British subjects, Fairfax was entitled to recover 
 the purchase price, and his claim was indirectly confirmed. 
 This is probably Judge Roane's meaning in saying in his de- 
 cision that the cause was revived under Jay's Treaty of 1794 
 providing for the payment of British debts. 
 
 The course, however, of the 4ong litigation over the Fair- 
 fax estate and the peculiar circumstances attending its final 
 determination, are so intimately interwoven, in many respects, 
 with the narrative of the Supreme Court of the United States, 
 that in order to present the successive steps taken, a consid- 
 erable chain of other highly-important and closely-connected 
 events must be related. 
 
 Marshall's Dominating Personality. 
 
 When Marshall was appointed Chief Justice of the Su- 
 preme Court, he had absolutely no reputation as a jurist. He 
 had never had any judicial experience; his reputation was 
 
 14 Munford's Reports, etc., Vol. 1 : 232. 
 16 Ibid.
 
 242 HISTORY OF THE SUPREME COURT 
 
 wholly that of a politician and land lawyer. In 1797 Pres- 
 ident Adams had appointed him, with Pinckney and Gerry, as 
 Envoy Extraordinary to France, and for a brief time, in 1800, 
 he had been in Congress, and had served as Adams' Secre- 
 tary of State. 
 
 But a more forceful, dominating man than Marshall, Adams 
 could not have appointed Chief Justice; in audacity of judi- 
 cial construction, and arrogance and tenacity of purpose, 
 Marshall soon revealed that he had the qualities necessary 
 for executing the puqx>ses under way. 10 These purposes 
 were various. One aim was to retain and extend in the 
 courts the autocratic and all-pervading power of judicial au- 
 thority. Intimately woven with that aim, was the less gen- 
 eral and more personal design of having the Supreme Court 
 validate great fraudulent transactions of one kind or another, 
 by the bold and simple process of declaring hostile legislative 
 acts unconstitutional, or of asserting that the Supreme Court 
 had original appellate powers of jurisdiction. 
 
 Already plans had been concerted by which the question of 
 the unconstitutionality of the Georgia act rescinding the 
 Yazoo land grant law was to be passed upon by the Supreme 
 Court ; we need hardly say Again that John Ouincy Adams 
 was one of the attorneys later appearing in the open for the 
 Yazoo claimants. In the litigation over the Fairfax estate, 
 Marshall's own interests were involved ; and, as we shall see, 
 the final decision hung upon the point of whether the Supreme 
 Court had the Constitutional power of deciding a case over 
 the heads of a State Court. These cases were but two of a 
 large number affecting fraudulent claims of immense value, 
 and doctrines of immeasurable importance to the ruling class. 
 
 For the particular work in hand, Marshall, it must be ad- 
 mitted, was the very best choice that could have been made. 
 
 10 The physical characteristic of Marshall most forcibly impressing 
 spectators was his extremely small head, which was all the more notice- 
 able in contrast with his tall, gaunt frame. His eyes were black and 
 brilliant, and his face expressed obduracy and tenaciousness.
 
 THE AUTHENTIC JOHN MARSHALL 243 
 
 
 
 In selecting his premises in his decisions, Marshall was trans- 
 parently sophistical and unscrupulous, but once he had chosen 
 those premises he pursued them to a logical finish the temer- 
 ity of which must excite admiration. Any doctrine or any 
 subtle theory of law necessary to the justification of the aim 
 in mind, ministered to his purpose, yet once started on his 
 particular line of reasoning, he expounded it in the particular 
 decision with an acuteness, lucidity and a conciseness of 
 diction never as yet surpassed. But when his different de- 
 cisions are compared, they abound in evident subterfuges and 
 the grossest contradictions. 
 
 Almost immediately after he became Chief Justice the op- 
 portunity was presented of establishing an enduring precedent 
 that the Supreme Court held the power of declaring laws of 
 Congress unconstitutional, and that there were vested rights 
 which no law could abolish. 
 
 The Case of Marbury vs. Madison. 
 
 Under the act rushed through by the Federalists creating 
 additional judicial offices, William Marbury and three others 
 were appointed justices of the peace in the District of Colum- 
 bia. Jefferson, coming into office, instructed Madison, as 
 Secretary of State, to refuse to issue their commissions. Mar- 
 bury and his associates, moved by their counsel, in December, 
 1801, in the Supreme Court of the United States for a man- 
 damus. But it was not until two years later that Marshall 
 handed down his decision. He did not dare, at that time, 
 openly to defy the administration by mandamusing the Gov- 
 ernment. This, if set as a precedent, would be a double- 
 edged weapon. But by the following serpentine line of rea- 
 soning Marshall accomplished the adroit twofold purpose of 
 seating the justices, and of asserting the right of the Supreme 
 Court to declare laws unconstitutional : 
 
 He decided that Marbury's appointment was not revokable;
 
 244 HISTORY OF THE SUPREME COURT 
 
 that when made it " vested in the officer, legal rights, which 
 are protected by the laws of his country." To withhold the 
 commission was an act not warranted by law, but was vio- 
 lative of a vested legal right. Now the case was brought 
 under an act of Congress authorizing the Supreme Court to 
 issue writs of mandamus to any person holding office under 
 the authority of the United States. To mandamus to deliver 
 a paper, Marshall held, was the same as to institute an original 
 action for that paper. The authority thus given to the Su- 
 preme Court, Marshall decided, was not warranted by the 
 Constitution ; it was repugnant to the Constitution, and there- 
 fore void. It was emphatically, he said, the duty of the ju- 
 dicial department to say what the law was. 17 Thus, while 
 ostentatiously setting out to placate his opponents, the Re- 
 publicans, by declaring a Federalist law invalid, he cleverly 
 made that the cover for seating Federal judges, and for arro- 
 gating the right of the Supreme Court to void laws of 
 Congress. 
 
 The Process of Restoring Confiscated Estates. 
 
 This done, the next undertaking was to make judicial con- 
 structions under which confiscated estates of Tories would 
 be restored by court order. It was a move, however, which 
 had to be done very slowly and discreetly ; public feeling was 
 still intensely irritable. One case after another was taken 
 up, the decision in each of which was so devised, as inevitably 
 
 17 Cranch's Reports, Supreme Court of the United States, Vol. I: 176. 
 In the very act of arrogating to themselves the supreme and final say 
 in government, the politicians on the Supreme Court bench had the 
 assurance to advance the pretension that they were safeguarding popular 
 liberties. " That the people," read an extract in Marshall's decision, 
 " have an original right to establish, for their future government, such 
 principles, as, in their opinion, shall most conduce to their own happi- 
 ness, is the basis on which the American fabric has been erected." 
 This was a supererogative bit of claptrap. The effect of Marshall's 
 decision was to make three men (in a body of five) the sole and irre- 
 sponsible dictators of what laws should stand, and what should not.
 
 THE AUTHENTIC JOHN MARSHALL 245 
 
 to supply cumulative precedents for the validation of Mar- 
 shall's own claim to the Fairfax estate. 
 
 The first case was that of M'llvane vs. Daniel Coxe's Les- 
 see, argued before the Supreme Court, in February, 1804. 
 The action involved the leading question as to whether those 
 who had gone over to the British in the American Revolution 
 and who had become British subjects, or were aliens, could 
 inherit lands in the United States. This was a question of 
 great importance; it had never been decided either by the 
 Supreme Court of the United States, or by the New Jersey 
 courts. 
 
 Daniel Coxe had been born in New Jersey while it was a 
 British colony, and had joined the British at an early stage of 
 the Revolutionary war. In 1778 or 1779 he had been attainted 
 in Pennsylvania for treason, and his estate confiscated by 
 specific proceedings. At the conclusion of the war he had 
 emigrated to England. There he had become an acknowl- 
 edged British subject, and had received a pension' from 
 George III for his loyalty. And there, too, he had, as a, 
 British subject, carried on trade and commerce. In 1802, a 
 relative of his died in New York, leaving an estate in New 
 Jersey. Daniel Coxe, as next of blood, claimed right of in- 
 heritance. Another relative next of blood after Coxe ex- 
 cepted to Coxe as an alien, and falling back upon the fact 
 that she was an American citizen, claimed the estate in her 
 own right. 
 
 In his report of the argument in this case Cranch's foot- 
 note reads : " Present, Gushing, Paterson, Washington and 
 Johnson, Justices. The Chief Justice did not sit in this case, 
 having formed a decided opinion on the principal question, 
 while his interests were concerned." 18 
 
 A peculiar circumstance of this case was that although it 
 was very elaborately argued before the Supreme Court in 
 i8o4, 19 there was no decision until four years later. Why 
 
 18 II Cranch, 280. 
 
 19 The argument is reported in full in II Cranch, 280-336,
 
 246 HISTORY OF THE SUPREME COURT 
 
 this long delay of four years? The Supreme Court, then, 
 was not clogged with excess of cases. Were the Justices ap- 
 prehensive of public feeling? 
 
 Impeachment Action Against Associate Justice Chase. 
 
 Perhaps, also, the fact that the House of Representatives, 
 in 1804, had irreverently brought impeachment proceedings 
 against Associate Justice Samuel Chase had its sobering 
 weight. 
 
 The accusations of " high crimes and misdemeanors " with 
 which Chase was charged were sundry. One charge was that 
 he had acted in a manner " highly arbitrary, oppressive and 
 unjust " in the case, in 1800, of John Fries, accused of treason 
 under the Alien and Sedition laws; that he had sought to 
 prejudice the jury against Fries; and that in consequence of 
 Chase's " irregular conduct," Fries was unjustly sentenced 
 to death. Another charge was that Chase had acted likewise 
 with " manifest injustice, partiality and intemperance " in pro- 
 curing the conviction of John Thompson Callender, who had 
 severely criticized Jay and other judges and officials. 20 These, 
 and other charges, it was widely recognized, were so well 
 founded that the Adams administration had not dared to carry 
 out the court's sentence, but extended pardons. The num- 
 ber of votes in the Senate favoring Chase's impeachment 
 lacked the constitutional two-thirds majority required, and he 
 was let off by a strict partisan vote. This is the only instance 
 of impeachment proceedings against a Supreme Court Judge 
 in the entire history of that Court. 
 
 With deciding upon the right of British subjects to hold 
 and inherit estates, the Supreme Court of the United States 
 still kept up a policy of cautious evasion. This was again 
 
 20 "Report of the Trial of the Hon. Samuel Chase, One Of The 
 Associate Justices of the Supreme Court of the U. S., Before The High 
 Court of Impeachment Composed of The United States Senate," etc. 
 Published at Baltimore, 1805, pp.
 
 THE AUTHENTIC JOHN MARSHALL 247 
 
 shown by the case of Lambert's Lessee against Paine, coming 
 up before the Supreme Court, in February, 1805. This suit 
 involved the question of whether a British subject, born in 
 England in the year 1750, and who had always resided in Eng- 
 land, could, in the year 1786, take and hold lands in Virginia 
 by descent or by devise. This note appears on the official rec- 
 ord: 
 
 " Feb. 1 8. 
 
 This cause was again argued at this term by the same coun- 
 sel before Gushing, Paterson, Washington and Johnson. 
 Marshall, Ch. J., having formerly been counsel for one of the 
 parties, did not sit, and Chase, ]. was absent" - 1 
 
 The action concerned a Virginia estate of about six thou- 
 sand acres of land, devised to George Gilmer, a British sub- 
 ject. Each of the four justices sitting 22 handed down sep- 
 arate opinions. The majority of the court said that by the 
 will, Gilmer derived a fee in the land. But every one of the 
 Justices evaded the crucial question as to whether an alien 
 could hold land. " As the majority of the court," read Jus- 
 tice Washington's opinion, " is in favor of the defendant upon 
 the construction of the will, I do not think it necessary to say 
 anything upon the doctrine of alienage, as [he significantly 
 added] that question may possibly come on in some other case, 
 in which it must be decided." 23 
 
 The Holland Company's Frauds Validated. 
 
 But if the Supreme Court was careful to dodge the main 
 issue as regarded aliens until the receding years allayed public 
 agitation, it judged the time propitious for validating the title 
 
 21 III Cranch, 117. 
 
 22 The Supreme Court was now composed of six members. 
 
 2 3 III Cranch, 183,
 
 248 HISTORY OF THE SUPREME COURT 
 
 to the vast areas of land fraudulently obtained by the Holland 
 Company, and t by other corporations. 
 
 In previous chapters we have outlined the history of the 
 origin of the Holland Company, in the precedent operations 
 of which Justice James Wilson, Robert Morris, John Nichol- 
 son and others were so prominent. The great agitation con- 
 tinued among the settlers over the disposition of millions of 
 acres of land in New York and Pennsylvania to these poli- 
 ticians, who in turn, sold them to a group of Holland capital- 
 ists. The Pennsylvania legislative act of 1792 had ordered 
 the public land sold in small areas, for actual settlement to be 
 made within two years. But this law was grossly evaded and 
 violated by Wilson, Morris and company. How the law 
 was evaded, so that a few politicians were able to grasp enor- 
 mous areas, was related by Judge Huston of the Supreme 
 Court of Pennsylvania. 
 
 ". , . . Young men," he wrote, " in the face of the law 
 have gone from home twenty or one hundred miles, com- 
 menced a dozen settlements in one month, and next year 
 worked a week on each, and so on. This, and everything like 
 it, is not as directed by law. And again, holders of great 
 numbers of warrants have hired the same man to make, and, 
 in their language, to keep up, twenty settlements or so many 
 of the tracts for which they had warrants. . . . 
 
 " The owners of the . warrants, and those who had settled 
 without warrants, came early into collision, and on each side 
 contended for a construction not warranted by law. The 
 grantees of warrants obtained patents, without even commenc- 
 ing a settlement, on certificates of two justices of the peace 
 that they had been prevented by enemies ; and the persons 
 claiming by settlement, contended that warrants were void un- 
 less settlement commenced within two years from date of 
 warrant. The war raged during the whole of two years, or 
 during a great part of it. . . ." -* 
 
 24 See, Judge Huston's historical review of the controversy in Watts* 
 Reports (Supreme Court of Pa.), Vol. I: 70-109,
 
 THE AUTHENTIC JOHN MARSHALL 249 
 
 The authorities of Pennsylvania were goaded by public 
 agitation into bringing action against the Holland Company. 
 The matter came before the Pennsylvania Supreme Court in 
 March, 1800. At the same time, on its part, the Holland 
 Company applied for a mandamus to compel the land officers 
 to issue warrants for surveys. " Can it be sufficient to say," 
 read the State's argument, in part, " that the Holland Com- 
 pany have improved a great deal of the country, and are there- 
 fore entitled to hold what they have not improved? The 
 spirit of monopoly was an evil against which the legislature 
 meant to guard by dividing the territory offered for sale into 
 single tracts, and restricting the right of purchase to a single 
 tract. It is true, that the connivance of opulent speculators 
 has evaded the legislative precaution; and instead of each 
 settler being the owner of the tract on which he resides, he is 
 the mere instrument of an association of foreigners (who 
 never visited, and probably never will visit, America) to ob- 
 tain for their emolument the lands which the State had offered 
 for sale, with very different views of policy and ben- 
 efit. . . ," 25 
 
 The Supreme Court of Pennsylvania decided that the settle- 
 ments must be made according to law, or no title passed. But 
 the Holland Company kept on inspiring riots and bloodshed, 
 and fabricated a test case in the Supreme Court of the United 
 States for the validation of its title. This case came before 
 that court, in February, 1805, under the form of the action 
 of Huidekoper's Lessee vs. Douglas. 26 
 
 Attorney-General Kean, for the State of Pennsylvania, con- 
 tended that the object of the Legislature was the settlement, 
 not the sale of the lands; that the purpose was to get settlers 
 so as to form a barrier against the Indians. He argued at 
 length for a forfeiture of the Holland Company's title. Re- 
 sponding, the Holland Company's counsel brought up the an- 
 
 25 Case of Commonwealth (of Pa.) vs. Tengh Coxe, Dallas' Reports. 
 (Supreme Court of Pa.), Vol. IV: 195. 
 See, III Cranch, 1-73,
 
 25O HISTORY OF THE SUPREME COURT 
 
 cient pretext (which we have noted in the case of the Loyal 
 Company, in Chapter I) that the Indian wars prevented the 
 settlement and improving of the lands within the required two 
 years. 
 
 Chief Justice Marshall's decision was characteristic. En- 
 tirely passing over the all-important and essential fact that 
 millions of acres of the very finest lands in western Pennsyl- 
 vania were unlawfully acquired and monopolized by a small 
 syndicate of Holland bankers and merchants, he decided that 
 the excuse offered was good. In brief, he held that when 
 Indian wars 2T prevented prompt settlement, there was a 
 release from the fulfillment of conditions demanded by law, 
 and that a warrant gave a vested right. Attention should be 
 given to this decision ; in this he held that a contract was only 
 conditionally and relatively a contract; we shall come across 
 other important decisions in which, for the same purposes 
 of justification, he or his colleagues decided that a contract 
 must be construed strictly and absolutely. And by this de- 
 cision he set another precedent, as we shall see, by which, 
 under the same pretext, huge areas of the richest lands in 
 California and elsewhere were later grasped by a few cap- 
 italists. 
 
 This decision riveted the hold of the Holland Company 
 upon large areas of land, and upon large numbers of settlers, 
 
 27 These wars were caused by the long-continuing and systematic 
 debauching and swindling of the Indian tribes by the whites. The per- 
 sons complaining that Indian hostilities prevented prompt settlement, 
 were the very persons whose practices incited those hostilities. Mar- 
 shall knew this. Of the many contemporaneous accounts of the treat- 
 ment of Indians, we will instance that message of Governor Daniel D. 
 Tompkins, of New York, to the Legislature in 1812. ". . . It is not 
 to be disguised," he wrote, " that worthless and unprincipled white 
 persons, availing themselves of the ignorance of the Indians, and of 
 their horror at becoming the objects of punishment, by laws which they 
 cannot comprehend, wantonly and boldly violate their individual pos- 
 sessions and national domain." These whites, said Tompkins, corrupted 
 and debased the Indians' propensities and habits, intruded upon their 
 lands, and defied the law. (New York Senate and Assembly Journals, 
 1812, p. 6.) It may be added that large numbers of the whites referred 
 to were agents for land speculators and traders.
 
 THE AUTHENTIC JOHN MARSHALL 
 
 in both Pennsylvania and New York. So much oppression 
 resulted from the Holland Company's exactions, that Gov- 
 ernor DeWitt Clinton, of New York, in a message to the Leg- 
 islature, on March i, 1820, urged that the State buy the rights 
 of the Holland Company from the bankers, the Willincks, of 
 Amsterdam, Holland. This suggested purchase, he wrote, 
 would " relieve a considerable portion of our population from 
 the evils from which they are suffering," and would also do 
 away " with an influence which has been injuriously exer- 
 cised." There was great excitement, the message reported, 
 among the yeomanry, and it was dangerous, Governor Clinton 
 declared, to allow so extensive a domain under foreign author- 
 ity. 
 
 " In this State," the message went on, " there are, west of 
 the Genesee River, from eighty to one hundred thousand peo- 
 ple, subject to the will of the Hollanders for their peace and 
 happiness. . . . By the existing laws of the State, even 
 their improvements (in these times of the absence of all 
 money), are liable to be sold at auction for a trifling debt, 
 arising from the ordinary credits in life, or a lawyer's or a 
 physician's bill." Similar conditions, it may be interposed, 
 prevailed in Pennsylvania. Governor Clinton's message stated 
 that the Holland Company owned nearly 2,000,000 acres in 
 New York, and also held between four and five millions of 
 dollars in good bonds, covenants and mortgages. 28 
 
 Governor Clinton's proposal was not acted upon. The 
 Holland Company, says Roberts, " sold farms on long time 
 to those that would improve them, at prices that seemed low, 
 but when a succession of bad crops came or domestic affliction 
 used up the income, they proved to be onerous. ... In 
 1836 the people of Chautauqua County were disturbed by ru- 
 mors that the liens given by them to the Holland Company 
 were to be enforced, and the land office with its records was 
 destroyed by a mob. In Batavia, Genesee County, a threat- 
 
 28 Journal of the [N. Y.] Assembly, 1820: 581-583.
 
 252 HISTORY OF THE SUPREME COURT 
 
 ened attack on the land office was prevented by the organiza- 
 tion of the citizens." 20 The " citizens " referred to were 
 armed hirelings employed by the Holland Company. Shortly 
 after this, J. J. Vanderkemp, general agent of the Holland 
 Company in Philadelphia, discontinued the company's office 
 at Batavia. 80 A petition of the inhabitants living on the Hol- 
 land Company's domain was submitted to the Legislature al- 
 leging, by a recital of the facts, that the Holland Company's 
 title was invalid, and demanding ejectment; the Attorney- 
 General was directed to make an inquiry. 31 
 
 The Holland Company decided that it was a wise move to 
 sell its property to American capitalists, and did so. In Penn- 
 sylvania, the Holland Company's ownership was likewise ac- 
 companied by a train of disturbances and litigations, ending 
 in its further enrichment by the sales of land to native capi- 
 talists. The huge sums of money invested by the Dutch 
 capitalists in canals and railroads were the sums that had 
 been wrung from American settlers during the more than 
 forty years of the Holland Company's sway. 
 
 These details are given for the purpose of showing some 
 of the results of Chief Justice Marshall's decision. 
 
 The New Associate Justices. 
 
 The three Associate Justices of the Supreme Court of the 
 United States appointed by President Jefferson, during his 
 two terms of office, were all associated either with the landed 
 or banking class. Of all the men ever sitting in that court, 
 William Johnson, of South Carolina, appointed in 1804, was 
 one of the very few distinguished, on the whole, for his op- 
 position to certain .notorious land decisions. He was more 
 allied with the banking interests; his brother Joseph was 
 president, from 1818 to 1823, of the Charleston '(S. C.) 
 
 29 Roberts' " New York," Vol. II : 623. 
 
 30 N. Y. Assembly Doc. No. 317, 1839. 
 
 31 N. Y. Assembly Doc. No. 224, Vol. Ill, Assembly Docs., 1837,
 
 THE AUTHENTIC JOHN MARSHALL 253 
 
 Branch of the Bank of the United States. Of the truly 
 enormous corruptions and consecutive frauds and thefts of 
 this bank, details are given later in this work. 
 
 ' In the appointment in 1807, of Brockholst Livingston, as an 
 Associate Justice, the long-potent Livingston family secured 
 another successive representative. A son of William Living- 
 ston, Brockholst Livingston succeeded his father's associate, 
 William Paterson, who died in 1806 while visiting his daugh- 
 ter, the wife of Stephen Van Rensselaer. William Todd, 
 Chief Justice of Kentucky, also appointed an Associate Jus- 
 tice of the Supreme Court by Jefferson, was allied with the 
 landed class ; and his second wife, to whom he was mar- 
 ried in 1811, was the widow of Major George Washing- 
 ton, a nephew of General George Washington. She was 
 also the youngest sister of the wife of James Madison. 
 Todd, says the biographical account of him in the Supreme 
 Court records, was a great authority on land laws. The ac- 
 count further says that " although a Republican, he stead- 
 fastly supported the Constitutional doctrines which Mr. Chief 
 Justice Marshall promulgated." ! 
 
 This was the- composition of the Supreme Court bench 
 when, in February, in 1808, after four years' postponement, 
 the decision in the case of MTlvaine vs. Coxe's Lessee, was 
 handed down. Decrepit Justice Cushing, seventy-six years 
 old, and so valetudinarian as to excite pity, wrote the court's 
 opinion. So palpably remarkable were the grounds of the 
 decision that it was received with derision ; it was one of those 
 decisions that, not wrapped in technicalities, could be under-- 
 stood by the layman. Daniel Coxe, it held, could not by any 
 voluntary act of his, renounce allegiance to the State of Xew 
 Jersey. He was, tfie decision read, " incapable of throwing 
 
 32 See, Peters' Reports, Supreme Court of the United States, Vol. 
 XIII : 7 and 8. This account describes Justice Todd as very kind to 
 those in whom he was interested. It says that after the Kentucky 
 Legislature had repealed an act granting a pension to Justice Muntc-r, 
 that Todd personally pensioned Munter for life.
 
 254 HISTORY OF THE SUPREME COURT 
 
 off his allegiance to the State," so long as the laws of New 
 Jersey which had made him a subject of that State were in 
 full force. New Jersey, in 1776, was a sovereign State, and 
 had a right to compel the inhabitants of that State to become 
 citizens. Therefore, a person living there until 1777, and 
 then joining the British as a refugee, had a right to take 
 lands by descent in the State of New Jersey. 33 
 
 The premises of this decision were so obviously ridiculous 
 and fantastic that it would be superfluous to analyze them. 
 Nevertheless, the decision served the meditated purposes of 
 ranking as a precedent leading up to the settlement of the 
 Fairfax matter. Likewise did the decision, rendered in the 
 same month, in the case of Dawson's Lessee vs. Godfrey. 
 Marshall absented himself when this decision was made. This 
 case dealt with the right of an alien born in England before 
 the year 1775, and who always lived there, never coming to the 
 United States, to take lands in Maryland which he had in- 
 herited in the year 1793. He could not take those lands, the 
 Supreme Court decided, because the inheritance antedated 
 Jay's Treaty by a year. 34 The importance of this decision 
 lay in its contra-implied dictum that any transaction between 
 a British subject and an American citizen made after Jay's 
 Treaty, was an enforceable contract. This doctrine precisely 
 fitted Marshall's own case in his purchase of Denny Fairfax's 
 claim to " Leeds Manor." 
 
 Then followed Marshall's decision, in 1809, in the case of 
 Taylor vs< Brown validating the fraudulent possession of 
 
 33 IV Cranch, 209-215. At the very time that this decision was handed 
 down, the United States Government was contesting the claim of the 
 British Government that Great Britain had the right to impress sailors 
 of British birth, no matter on what ships they were in service. The 
 British Government proceeded upon the dictum that " once a British 
 subject, always a British subject," and the United States Government as 
 vigorously denied the force of that dictum. This dispute, involved as it 
 was with other questions arising from capitalist struggles for commer- 
 cial expansion, was one of the causes of the War of 1812-1815. Mar- 
 shall's decision was good law according to British contentions. 
 
 34 IV Cranch, 321.
 
 THE AUTHENTIC JOHN MARSHALL 255 
 
 surplus land not included in the original patent. In another 
 and weighty respect, too, this decision took rank as a prece- 
 dent, for what Marshall actually decided was that when the 
 person to whom a stated area of land had been granted, ap- 
 propriated more than the patent contained, he had a vested 
 right in that illegal seizure. Certainly, this was a very re- 
 markable construction justifying land thefts; here are Mar- 
 shall's own words: 
 
 " It is a fact of universal notoriety in Virginia not only 
 that the old military surveys, but that the patents of that 
 country generally contain a greater quantity of land than the 
 patents call for. The ancient law of Virginia notices this 
 fact, and provides for the case. It prescribes the manner in 
 which this surplus may be acquired by other persons; and it 
 is worthy of notice that the patentee must himself reject the 
 surplus before it can be acquired by another, and after hav- 
 ing rejected it, he has the election to allot it in such part of 
 his patent as he pleases." 35 
 
 The facile way was now prepared, the time was accounted 
 ripe, and accordingly in the next three years two momentous 
 decisions were rendered in cases both of which sprang from 
 personal interests. These decisions equally, in different 
 ways, asserted the all-embracing, omnipotent power of the 
 Supreme Court of the United States. In the one case, the 
 Supreme Court successfully demonstrated its power of an- 
 nulling legislation considered to be an impairment of the 
 obligation of contract, and it held that it had original powers 
 of appellate jurisdiction, in deciding the other case. The first 
 of these cases was that of the Georgia legislative act rescind- 
 ing the corrupt grant of 35,000,000 acres. The second case 
 dealt with the Fairfax estate. Yet these circumstances, throw- 
 ing such light upon the subterranean origin of memorable 
 decisions, are by no means all ; attending the actions were 
 a series of other exceedingly astonishing and interconnected 
 
 35 V Cranch, 249.
 
 256 HISTORY OF THE SUPREME COURT 
 
 circumstances, the details of which are related in the next 
 chapter. 
 
 How Marshall Ruled the Supreme Court. 
 
 But before entering upon the further narrative, it will be 
 advisable to give some adequate idea of the arbitrary and 
 domineering manner in which Marshall ran the Supreme 
 Court. Before Marshall's appointment, the Supreme Court 
 followed the English practice, under which each judge who 
 sat in a cause, gave an opinion whenever he thought there 
 was occasion for it; but in general, those judges who pre- 
 sided at the circuit declined to sit in bane, except in a case 
 where the judges were equally divided in opinion. 
 
 Under Marshall (who had argued but a single case in the 
 Supreme Court of the United States before he became Chief 
 Justice), this practice, Shirley says, "was rooted out, so far 
 as his influence extended; the judges reheard the causes 
 which they had decided at the circuit; the practice of giving 
 individual opinions was repressed ; the practice became gen- 
 eral of making one judge ' the organ of the court,' of virtually 
 assigning causes, and of taking them home for the purpose 
 of writing up opinions in vacation ; and of having an opinion 
 written by a single judge as the opinion of the court, when the 
 judgment received the assent of but three, and sometimes two, 
 of the judges, and the reasoning of a less number. This 
 vicious practice occasioned great dissatisfaction. 
 
 "The primitive court [Supreme Court of the U. S.] con- 
 sisted of five judges. It was increased to six, and afterward 
 to seven. For years it was necessary for two of these judges, 
 in general, to ride the circuit together ; not infrequently, after 
 the accession of Marshall, but four judges held the general 
 term at Washington, and constituted the court when many 
 important causes were assigned. Two of the judges were 
 aged and infirm, and one of them, for years before his death,
 
 THE AUTHENTIC JOHN MARSHALL 257 
 
 was so superannuated that he practically left his circuit, a 
 most important one, to take care of itself, and was a nonentity 
 at Washington. The new chief [Marshall] had, from his 
 acknowledged ability and force, and weight of character, and 
 from his tact and diplomatic skill, great influence with his 
 brethren. When an occasion required, he was an- adept in 
 ' patching up ' compromise judgments and opinions." 
 
 Continuing, Shirley significantly relates that Marshall some- 
 times rendered decisions as being those of a majority of the 
 court, " without being as careful as a discreet judge ought, to 
 find out whether his opinion was that of a majority or minor- 
 ity of the court. In Rose vs. Himely, IV Cranch, 41, he 
 delivered the leading opinion, and ordered the judgment of 
 the Circuit Court to be reversed, etc., when in fact but a 
 single judge agreed with him, as afterwards appeared in Hud- 
 son vs. Guestier, VI Cranch, 281. 
 
 " In one of the cloud of opinions delivered by Marshall at 
 the trial of Aaron Burr, he admits that he made a mistake of a 
 similar character in Bollman's case. In this way, two judges 
 practically became a majority of six, and three a majority of 
 seven. 
 
 " The causes referred to were by no means the only in- 
 stances of a similar kind, nor could they fairly be attributed 
 to the press of business. These facts were open secrets in 
 narrow circles. This intensified the dissatisfaction. . . ." 30 
 
 While virtually declaring what the laws of the country 
 should be, Marshall was thus a lawless dictator, vesting in him- 
 self more powers than most potentates held. This manipu- 
 lation of his of the Supreme Court will assist in elucidating 
 the facts now following. 
 
 6 " Dartmouth College Causes" (Edition of 1879), pp. 377-378.
 
 CHAPTER VII 
 MARSHALL AND HIS CHIEF COADJUTOR, STORY 
 
 The great case before the Supreme Court of the United 
 States in 1809-1810 was that arising from the act of the Geor- 
 gia Legislature, in 1796, repealing the Yazoo land grants of 
 35,000,000 acres, after conclusive evidence had shown that the 
 empowering act had been obtained by bribery. 
 
 About a month before the act was repealed, when the whole 
 country knew the sworn details of the bribery, and when it 
 was well known that the incoming Legislature was pledged 
 to annul the granting act, the Georgia Mississippi Company 
 hastily sold to William Wetmore and other New England cap- 
 italists, mostly living in Boston and adjacent cities, a tract of 
 their grant. This tract lay in what is now the State of 
 Mississippi, and was estimated to contain the enormous total 
 quantity of 11,380,000 acres. For this immense area, the New 
 England Mississippi Company (for so the buyirlg company 
 called itself) agreed to pay the Georgia Mississippi Company 
 ten cents an acre in gradual installments. 1 
 
 A Collusive Suit Arranged. 
 
 Who had suggested this sale in view of the fact that the 
 Georgia Legislature was bound to revoke the grant? And 
 upon what assurances did the Boston capitalists contract to 
 buy the land, knowing as they did that revocation was immi- 
 nent and certain? 
 
 1 See, Case of Brown vs. Oilman, Wheaton's Reports, Supreme Court 
 of the United States, Vol. IV : 255. 
 
 258
 
 MARSHALL AND HIS CHIEF COADJUTOR, STORY 259 
 
 Did the proposal and assurances emanate from Justice 
 James Wilson, the foremost financier in the bribery transac- 
 tion? It was he, as we have seen, who contributed the great- 
 est share of the funds. We have seen, too, how after the 
 Legislature of Pennsylvania had repealed the charter of the 
 Bank of North America, owned by Wilson and others, Wilson 
 had argued that the repeal was in violation of the obligation 
 of a contract, and that it was injuring innocent parties who 
 had bought the bank's stock. And also we have seen how 
 Wilson was the identical delegate causing to be inserted in 
 the Constitution of the United States that sly, obscure but 
 formidable clause prohibiting State legislation impairing the 
 obligation of a contract. Did Wilson advise the hurried and 
 collusive sale to the New England capitalists in order that 
 they might be able to plead in court that they were innocent 
 purchasers, and knew nothing of the bribery and fraud? 
 This, among other defenses, was precisely what they did 
 plead, and continued to plead for fifteen years, although every 
 schoolboy knew of the great Yazoo frauds, so widespread and 
 rank a scandal did they make. 
 
 After an examination of the circumstances, little doubt 
 remains that a trumped-up case was manufactured in order to 
 bring the matter before the Supreme Court of the United 
 States, and thus have the Georgia rescinding act declared 
 unconstitutional. Knowing that the Georgia Legislature 
 would revoke the grant, the capitalists concerned hastened to 
 fabricate a case in this way: A portion of the lands of the 
 Georgia Mississippi Company were conveyed by the original 
 grantees to James Greenleaf ; 2 from him, these lands came 
 through a chain of conveyances to John Peck, who, in turn, 
 conveyed them with covenants, to Fletcher. After the 
 Georgia Legislature had rescinded the grant, Fletcher sued 
 
 2 It has been shown how, in another of the four associated companies 
 the Georgia Company Greenleaf held 2,500,000 acres, and how 
 James Wilson contributed 25,000 to the original capital of the Georgia 
 Company, in which he held 750,000 acres.
 
 260 HISTORY OF THE SUPREME COURT 
 
 Peck for a covenant broken. This suit, of course, as premedi- 
 tated, would open up the whole, question of the constitution- 
 ality of the Georgia rescinding act. 
 
 Such evidence as is accessible tends to prove beyond question 
 that this was the plan definitely agreed upon, and with this 
 particular ulterior end in view. 
 
 Story Dines with the Justices. 
 
 The case of Fletcher vs. Peck was twice argued before the 
 Supreme Court of the United States, the first time in 1809. 
 On the first occasion, Peck was represented by John Quincy 
 Adams, and Robert Goodhue Harper. At the second argu- 
 ment in 1810, Joseph Story and Harper represented Peck. 
 The note on the Supreme Court record reads : " The plain- 
 tiff sued out his writ of error, and the case was twice argued, 
 first by Martin, for the plaintiff in error, and by J. Q. Adams 
 and R. G. Harper for the defendant, at the February term, 
 1809, and again at this term by Martin, for the plaintiff, and 
 by Harper and Story, for the defendant." 3 
 
 But meanwhile some significant things were happening 
 which are not related in the Supreme Court records. Story 
 was a member of Congress at the time, and was briskly em- 
 ployed pushing the claims of the New England capitalists in 
 that body ; in his private correspondence with his friend Sam- 
 uel P. P. Fay, he frankly admitted so. 4 What was vastly more 
 to the point, he was very frequently and intimately hobnob- 
 bing with the judges of the Supreme Court of the United 
 States. In a letter, dated Washington, February 16, 1808, to 
 Fay, Story wrote: ". . . The scene of my greatest 
 amusement, as well as instruction, is the Supreme Court. I 
 
 3 VI Cranch, 114-115. It is again worthy of note that Judge William 
 Cranch, the reporter of the Supreme Court at this time, had been the 
 attorney for James Greenleaf in negotiating that great scandalous pur- 
 chase of 9,000 lots in the city of Washington. 
 
 4 "Joseph Story's Life and Letters" (Written and edited by his son, 
 William W. Story), Vol. I: 197.
 
 MARSHALL AND HIS CHIEF COADJUTOR, STORY 20l 
 
 daily spend several hours .there, and generally when disen- 
 gaged, dine and sup with the judges. . . ." 5 
 
 When Story wrote this letter, little did he think of what 
 historical importance it would have ! 
 
 Inasmuch as Story soon after this became an Associate 
 Justice, and ranks, after Marshall, as an ascribed great ex- 
 pounder of jurisprudence, it is advisable and appropriate to 
 digress, here in order to sketch his antecedents, life, environ- 
 ment and interests. 
 
 His grandfather, William Story, was a British official at 
 Marblehead, Massachusetts. His father was a physician, and 
 supported the American Revolution. " He married for his first 
 wife," wrote Joseph Story to his son, William W. Story, on 
 January 23, 1831, " Miss Ruth Ruddock, daughter of John 
 Ruddock, Esq., a man who had accumulated a considerable 
 property in the ship-building business in Boston. She died 
 in the year 1777, leaving seven children. In the autumn of 
 1778, my father married Miss Pedrick, whom you know as 
 your grandmother still living, and by her had eleven children, 
 of whom I am the eldest. Your grandfather's father was an 
 opulent merchant, and, indeed, for that day a very opulent 
 merchant." 
 
 Educated at Harvard, Joseph Story necessarily was sub- 
 ject to the acknowledged caste environment systematically 
 prevailing thefe. Opening a law office in Salem, he admixed 
 politics and law practice. He was a strong believer in prop- 
 erty qualifications for voters, as was later shown when, as a 
 member of the Massachusetts Constitutional Convention of 
 1820, he vigorously advocated the retention of the restrictive 
 electoral laws in force. 7 
 
 5 Ibid., 62. Socially and in his private circle, Marshall particularly 
 was of an extremely convivial disposition. Unlike Justice Bushrod 
 Washington, who was " lean and emaciated, with a face like marble,' 
 Marshall was strong and robust. In his youth he had been much 
 habituated to athletic exercises. He could stand up under much fes- 
 tivity. 
 
 6 Ibid., 2. * See later.
 
 262 HISTORY OF THE SUPREME COURT 
 
 Marshall Validates the Yazoo Frauds. 
 
 The decision handed down by Chief Justice Marshall, in 
 the case of Fletcher vs. Peck, made not merely a considerable, 
 but a very great, public sensation. The decision, in brief, held 
 that the grant made by the State of Georgia was in the nature 
 of a contract which could not be impaired or revoked by sub- 
 sequent legislation. This being so, he decided, the rescinding 
 act of 1796 was " repugnant " to the Constitution, and there- 
 fore null and void. 8 
 
 From this decision Justice Johnson caustically dissented, in 
 a strong opinion, implying collusion in the bringing of the 
 action. " I have been very unwilling," he said, " to proceed 
 to the decision of this cause at all. It appears to me to bear 
 strong evidence upon the face of it, of being a mere feigned 
 cause. It is our duty to decide on the rights, but not on the 
 speculations of parties. My confidence, however," [was this 
 meant ironically?], "in the respectable gentlemen who have 
 been engaged for the parties, has induced me to abandon my 
 scruples, in the belief that they would never consent to im- 
 pose a mere feigned case upon this court." 
 
 To form an adequate realization of the wide and lasting 
 stir caused by this decision, it is necessary to picture the pub- 
 lic disgust at the methods by which the Yazoo land grants 
 had been obtained, and the deep public horror at the Supreme 
 Court venturing to annul a State law as unconstitutional, 
 especially a law explicitly designed to forfeit a grant of 35,- 
 000,000 acres secured by both fraud and corruption. The 
 sworn testimony of that bribery was published in official 
 records, available to everyone; not a well-informed person 
 was there who did not know them; and besides, the scandal 
 had been agitated for fifteen years. Only a short time be- 
 fore the decision, the Secretary of the Treasury, in 1810, un- 
 
 8 See, VI Cranch, 87.
 
 MARSHALL AND HIS CHIEF COADJUTOR, STORY 263 
 
 der a resolution of the House of Representatives, reported of 
 the Yazoo claims: 
 
 " The Yazoo claims, so-called, embracing about 35,000,000 
 acres in the Mississippi Territory and derived from a pre- 
 tended sale by the Legislature of Georgia, but declared null 
 and void, as fraudulent, by a subsequent legislature. The 
 evidence as published by the State of Georgia and by Congress, 
 shows that that transaction, even if considered as a contract, 
 is as such, on acknowledged principles of law and equity, 
 null ab initio, it being in proof that all the members of the 
 Legislature who voted in favor of the sale, that is to say, the 
 agents who pretended to sell the property of their constitu- 
 ents, were, with the exception of a single person, interested in, 
 and parties to, the purchase. Much litigation must be ex- 
 pected, and orders have lately been given for the removal of 
 certain intruders, some of whom claimed the land under this 
 supposed title." 
 
 But what devious tack did Marshall take so as to evade the 
 settled principle of law that fraud vitiated every contract? 
 With unsurpassed audacity, he proceeded upon the complacent 
 assumption that the bribery of legislators was merely a fanci- 
 ful story, and waved the facts lightly aside. 
 
 By capitalists of every description the decision was greeted 
 with jubilation. They saw its prodigious purport. It meant 
 that any special privilege, any act bestowing property, or 
 creating new property rights, whether obtained by the grossest 
 bribery, was a fixed and inalienable vested right, which no 
 subsequent legislative act could rescind. 
 
 For this, John Quincy Adams and the illustrious Joseph 
 Story had pleaded, and this is what the great and pure John 
 Marshall decided. Thus they bound upon future generations 
 laws secured by bribes, and arrogated to the Supreme Court 
 the almighty power of setting aside conflicting legislation, 
 because, indeed, a law was a contract and a contract was a 
 sacred and perpetual right, to be venerated and enforced for
 
 264 HISTORY OF THE SUPREME COURT 
 
 all time. Justice James Wilson had done his work well in 
 the Constitutional Convention. 
 
 The Claimants Get Nearly Five Million Dollars. 
 
 In Congress a storm of bitter strictures was caused by the 
 decision, 9 but how much of these arose from simulated in- 
 dignation in order to pander to constituencies, how much from 
 genuine resentment, and how much from violence to sec- 
 tional convictions that the decision was an usurpation of 
 State's rights, cannot be accurately gauged. So inflamed, 
 however, was the public temper by the decision, that Con- 
 gress, for a considerable time, held back from giving the 
 Yazoo companies the indemnity they demanded under the 
 Supreme Court's decision. The areas included in their grants" 
 had been ceded by Georgia to the United States in 1802, and 
 could not be restored. Finally, in 1814, Congress passed an 
 act appropriating a fund of $5,000,000 for the indemnification 
 of the claimants, and establishing a Board of Commissioners 
 to determine the amount of the awards. Under this law these 
 awards were made in specially-issued Government stock : 
 
 To the Upper Mississippi Company $ 350,000 
 
 " " Tennessee Company 600,000 
 
 ' Georgia Mississippi Company 1,500,000 
 
 1 Georgia Company 2,250,000 
 
 persons claiming under citizenship rights 250,000 
 
 Total $4,950,000 10 
 
 9 See, for instance, accounts given in Senator Benton's " Thirty Years 
 in the Senate." 
 
 10 "American State Papers: Public Lands," Vol. VI: 21-22. (Doc. 
 No. 759.) But not satisfied with the $1,500,000 award made to the 
 Georgia Mississippi Company, a petition signed by Thomas L. Win- 
 throp, Thomas Wetmore, William Sullivan, John F. Loring, Joseph 
 Morton and other Boston capitalists, of the New England Mississippi 
 Company, who had bought that company's claim, was sent to Congress, 
 in 1837, complaining that an erroneous deduction of $130,425.12 had 
 been made from their original award, and saying that "the company 
 had been left to state their grievances for above twenty successive
 
 MARSHALL AND HIS CHIEF COADJUTOR, STORY 265 
 
 Two years later we find Thomas L. Winthrop, one of the 
 chief beneficiaries of this decision, buying, at auction, one- 
 half of the unsold lands of the Kennebec Company, in Maine. 
 This company, in 1753, had bought from the old Plymouth 
 Company, a large tract of land in that province, then a part 
 of Massachusetts. The grant as defined by law, lay fifteen 
 miles on each side of the Kennebec River, in the vicinity of 
 what are now the city of Augusta and the town of Winthrop 
 and other places. The boundary was described as the " ut- 
 termost limits of the Cobbosseeconte," but the company's sur- 
 veyors fraudulently ran their lines to the " farthest tiny rivu- 
 let " they could find, and thus boldly took in great areas of ad- 
 ditional land. Much litigation resulted over title to parts of 
 the land ; settlers after clearing the forests, and laying out 
 farms, were then compelled to pay twice and thrice ovef to 
 rival claimants; and when, in 1816, the courts decided in favor 
 of the Kennebec Company, the settlers were evicted and their 
 homes and improvements seized on the ground that they had 
 never obtained title from the Kennebec Company. When 
 the settlers rose in armed revolt, and an insurrection on a small 
 scale broke out, militia were requisitioned to shoot them down. 
 Winthrop subsequently sold his land to Congressman Joseph 
 L. Williams. 
 
 It was, says Shirley, the knowledge of Marshall's manipula- 
 tion of the Supreme Court that " lay at the bottom of the 
 attempts in Congress (which gave Webster so much trouble, 
 and some of the judges so much uneasiness) to prohibit the 
 judges from setting aside a State law as unconstitutional un- 
 less a certain number of judges sat in the cause and con- 
 curred in the judgments. It was one of the causes of 
 Jefferson's dislike of Marshall, which made him say with a 
 
 years." The unblushing cupidity of these capitalists was long a subject 
 of comment. See, " American State Papers: Public Lands," Vol. VIII: 
 985-986. (Doc. No. 1594.) In Brown vs. Oilman, IV Wheaton, 255, 
 it is stated that the New England Mississippi Company received $1,083,- 
 812 tn all,
 
 266 HISTORY OF THE SUPREME COURT 
 
 bitterness unusual with him, in his letter to Ritchie, of June 
 25, 1810: ' An opinion is huddled up in conclave, perhaps by 
 a majority of one, delivered as if unanimous, by a crafty 
 chief judge, who sophisticates the law to his mind by the 
 turn of his own reasoning.' " " 
 
 His success in this case, it may well be understood, gave 
 Story a great prestige in capitalist circles as an attorney of 
 distinguished mark. But like many other lawyers of the day, 
 Story was not only a practising attorney but a capitalist as 
 well. The very next year after the Yazoo decision, he be- 
 came president of a bank; the circumstances under which the 
 charter of this bank and the charters of other banks were 
 granted, and Story's methods in connection with the passage 
 of the acts, aroused much criticism in Massachusetts. 
 
 Throughout the United States, a hostile feeling toward 
 banks generally prevailed. We have seen how in New York, 
 during this period, the Legislature was being systematically 
 corrupted to pass acts giving bank charters. It was likewise 
 so in other States. True, the Constitution declared that 
 no State " shall coin money, emit bills of credit, or make 
 anything but gold and silver a tender in payment of 
 debts." But the Supreme Court of the United States later 
 construed this clause to mean that " bills of credit " were not 
 intended to apply to bank notes. Long before this decision was 
 made, began the enormous outpouring of State bank notes 
 the immense frauds of which are described in so many legis- 
 lative and other documents of the time. Vast issues of 
 bank notes were based upon " wild-cat " securities having 
 little or no value, and banks frequently had an outstanding 
 issue of millions of dollars in bank notes, when there was 
 hardly anything worthy of being called assets to back them 
 up. 
 
 This currency, so often fraudulent and spurious, was loaned 
 at usurious rates of interest, and until Jackson's administra- 
 
 11 " Dartmouth College Causes," 311.
 
 MARSHALL AND HIS CHIEF COADJUTOR, STORY 267 
 
 tion was received as payment for purchases of public lands. 
 What Governor Tompkins, of New York, wrote in a message 
 to the Legislature, in 1812, applied to banks throughout the 
 country. Bank stock, he said, was " generally owned by the 
 speculating, the wealthy and the aspiring part of society." 
 Enterprising farmers, manufacturers and mechanics, he went 
 on, experienced great difficulty in raising money at lawful 
 rates of interest upon the best security. The necessity of 
 getting temporary pecuniary relief frequently drove them 
 " into the embraces of unprincipled, avaricious usurers, who 
 fertilize upon the wants and distresses of the needy and un- 
 fortunate." He further referred to banks as " vesting in the 
 hands of the wealthy and aristocratic class of powerful en- 
 gines to corrupt and subdue republican notions." 12 
 
 Story Puts Through Bank Charters. 
 
 In 1810, Story was elected to the Massachusetts Legisla- 
 ture. Why did he choose to leave the more prominent posi- 
 tion of a seat in Congress for the lesser post of a seat in 
 that Legislature? Was it because he had satisfactorily put 
 the great Yazoo land claims through, and had plans of his 
 own necessitating his presence in the Massachusetts Legisla- 
 ture? What these plans were was quickly revealed. 
 
 As soon as the Legislature met in 1811, Story was elected 
 Speaker of the House. On June 25, 1811, a bill was passed 
 chartering the Merchants' Bank, with a capital of $300,000. 
 Among the incorporators were Story's clients, George Crown- 
 inshield, Jr., and John Crowninshield. 13 The Crowninshield 
 family were the owners of valuable wharf property in Salem ; 
 two years previously, in 1809, the Massachusetts Legislature 
 had passed an act chartering them as the Salem India Wharf 
 
 12 N. Y. Assembly and Senate Journals, 1812: 6. 
 
 18 "Laws of Massachusetts, 1809-12," Vol. V: 404. Story was George 
 Crowninshield's attorney in lawsuits. See, " Massachusetts Reports," 
 Vol. Ill: 444 (1807, etc.).
 
 268 HISTORY OF THE SUPREME COURT 
 
 Corporation. 14 The Crowninshield and the Adams iamilies, it 
 may be said, became intermarried. 
 
 The very next day after the Merchants' Bank was char- 
 tered, a bill was passed by the Massachusetts Legislature (on 
 June 26, 1811) chartering the State Bank, with a capital of 
 $3,ooo,ooo. 15 One of the leading incorporators was William 
 Gray, a rich shipowner and noted politician who had also 
 been an incorporator of the Essex Bank, chartered by the 
 Massachusetts Legislature in 1799. It may be remarked here 
 that a grandson of William Gray became one of the Associate 
 Justices of the Supreme Court of the United States. 
 
 Both the Merchants' Bank and the State Bank charters 
 were lobbied through the Legislature by Story. Although 
 his name, for obvious reasons, did not appear among the list 
 of incorporators, yet his connection was soon thereafter openly 
 shown when he was elected a director, and then President of 
 the Merchants' Bank of Salem. Writing to Story's son and 
 biographer, William W. Story, on August 25, 1847, J- W. 
 Treadwell, long cashier of the Merchants' Bank, thus ex- 
 plained the origin of these two bank charters: 
 
 ". . . Your father, while a member of the Legislature 
 of Massachusetts, exerted his influence to obtain acts of in- 
 corporations for the State Bank in Boston, and the Mer- 
 chants' Bank in Salem, the capital stock of which was almost 
 exclusively owned by members of the political party then 
 dominant. ... At the organization of the Merchants' 
 Bank, your father was elected to the Board of Directors, and 
 I was invited to go into the bank as one of its officers. As 
 Cashier of that institution, to which I was subsequently elected, 
 I was brought into close intimacy with him ; and yet a closer 
 one upon his election to the Presidency of the Bank, in a 
 couple of years afterwards." 16 
 
 14 "Laws of Massachusetts, 1809-12," Vol. V: 19. 
 
 15 Ibid., 501. 
 
 1 " Story's Life and Letters," Vol. 1 : 205.
 
 MARSHALL AND HIS CHIEF COADJUTOR, STORY 269 
 
 Story Appointed an Associate Justice. 
 
 In the same year in which these charters were enacted, 
 Story, in November, 1811, was appointed an Associate Jus- 
 tice of the Supreme Court of the United States. 
 
 His appointment, it is needless to say, was entirely satis- 
 factory to both the land and the banking interests. During 
 many of the years that he sat on the Supreme Court bench, 
 he was not only president of the Merchants' Bank, but that 
 bank greatly profited from the deposits of Government money. 
 In another letter to William W. Story, Treadwell further says 
 that, " The Merchants' Bank had always, since its establish- 
 ment, been the depository of the funds of the United States 
 Treasury, which had often been large [Salem was a busy 
 sea-port town with considerable customs revenues], and con- 
 tributed to swell its dividends." A competing bank in Salem, 
 Treadwell says, forwarded a memorial, during President Jack- 
 son's Administration to the Secretary of the Treasury Louis 
 McLane, stating that inasmuch as the president and the cashier 
 of the Merchants' Bank were enemies of the administration, 
 the Government deposits should be removed to the friendly 
 bank. But, adds Treadwell, the Government funds were left 
 undisturbed in the Merchants' Bank. 17 From being stanch 
 Republican, Story had changed his politics, and became a 
 deep-rooted Federalist. As for McLane's methods, they were 
 later revealed in the celebrated bribery contract case of the 
 Baltimore and Ohio Railroad Company, of which corporation 
 he became president. 18 
 
 " Ibid., 158-159. 
 
 18 Alexander J. Marshall, in 1853, sued the Baltimore and Ohio Rail- 
 road Company for $50,000, which he proved was owed to him for serv- 
 ices under a special contract for lobbying a bill through the Virginia 
 Legislature granting to the company the right of way through Virginia. 
 Marshall was employed by McLane as lobbyist. See, Case of Marshall 
 vs. Baltimore and Ohio Railroad Company, Howard's Reports, Su- 
 preme Court of the United States, Vol. XVI : 314. This case is de- 
 scribed more in detail further on in this present history.
 
 270 HISTORY OF THE SUPREME COURT 
 
 Chief Justice Marshall had decided the great Yazoo land 
 frauds case in favor of Story's clients. It now came Story's 
 turn to decide the long-pending case of the Fairfax estate 
 favorable to Marshall. 
 
 Marshall's Fairfax Claim Up Again. 
 
 The case of Hunter vs. Fairfax's Devisee had come up be- 
 fore the Supreme Court of Appeals of Virginia, in April, 
 i8io. 19 Why there was such a long lapse between the de- 
 cision of the Winchester court, in 1794, and the decision of this 
 court, is not clearly explained. Evidently, one aspect of it was 
 new points arising from the gross violation of the compromise 
 law by John Marshall and his brother, as the purchasers of 
 Fairfax's claim. In a decision which was really a sharp ex- 
 posure of the Marshalls' methods and pretensions, the Su- 
 preme Court of Appeals of Virginia reversed the lower court. 
 
 " I consider," said Judge Roane, " the compromise as hav- 
 ing been deposited with the court for the purpose of settling 
 all the causes embraced thereby, according to the provisions 
 thereof ; and I can never consent that the appellees after hav- 
 ing got the benefit thereof, should refuse to submit thereto, or 
 pay the equivalent; the consequences of which would be that 
 the Commonwealth would have to remunerate the appellant 
 [Hunter] for the land recovered from him. Such a cause 
 
 cannot be justified on the principles of justice or good foith. 
 20 
 
 The unprecedented action was now taken of carrying this 
 reversal to the Supreme Court of the United States, which 
 issued a writ of error. 
 
 The uncontroverted points up to this time were : 
 
 Lord Fairfax (as was agreed by both litigants), had - on- 
 
 19 "Judge Tucker," the note on the record reads, "not sitting in 'his 
 case, through motives of delicacy, being nearly related to a perscr in- 
 terested." Mun ford's Reports, etc., Vol. I: 218. 
 
 20 Ibid., 232.
 
 MARSHALL AND HIS CHIEF COADJUTOR, STORY 271 
 
 veyed 300,000 acres to his nephew, T. B. Martin, who had re- 
 conveyed them to Fairfax in fee. 
 
 Virginia had passed acts of confiscation of the property of 
 aliens. 
 
 Denny Fairfax, Lord Fairfax's heir, was a British subject; 
 he had always lived in England up to the time of his death in 
 about the year 1803. 
 
 John Marshall and his brother, James Markham Marshall, 
 had bought Denny Fairfax's claim to the estate in the North- 
 ern Neck of Virginia. 21 
 
 John Marshall had agreed to the act of compromise passed 
 by the Virginia Legislature, but later, after considering to 
 what full effect the provisions of Jay's Treaty could be used, 
 had (so the. Supreme Court of Appeals of Virginia held) vio- 
 lated, if not repudiated it, in bad faith. 
 
 Under the form of Fairfax's Devisee vs. Hunter's Lessee, 
 the case came before the Supreme Court of the United States, 
 at the February term, in 1813. At the argument Chief Jus- 
 tice Marshall and Justice Bushrod Washington were absent. 
 
 The attorneys for Fairfax's Devisee contended, among 
 other points, that Fairfax's estate had never been taken from 
 him by any equivalent mode of confiscation. The treaty of 
 peace of 1783, it was argued, found Denny Fairfax in pos- 
 session of his estate unaltered from the condition in which he 
 originally inherited it, and so operated as a release and con- 
 firmation to the British proprietor. His title, the argument 
 further ran, was explicitly acknowledged and confirmed by 
 Jay's Treaty of 1794. 
 
 Harper, attorney for Hunter, argued that Lord Thomas 
 Fairfax's original power had been only one to grant lands 
 to individuals; that it was not contemplated that he himself 
 should occupy the lands ; the power was a mere transference 
 or delegation of power which passed to Virginia at the time 
 
 21 The Virginia records show that James Markham Marshall collected 
 the rents, and was the general man of business for the estate.
 
 272 HISTORY OF THE SUPREME COURT 
 
 of the Revolution. " This," said Harper, " was the construc- 
 tion put upon it by Lord Fairfax himself for when he in- 
 tended to appropriate any part of the lands to his own use, 
 he granted it to a third person, and then took back the title 
 from his own grantee. His deeds were not in the common 
 form, but were made to resemble those of the crown." An 
 alien, continued Hunter, could not sell ; he had nothing but a 
 naked possession. 
 
 Story Decides in Favor of Marshall. 
 
 When Justice Story handed down the decision in this case, 
 on March 15, 1813, Marshall and Todd were absent. Story 
 decided that although Denny Martin (or Fairfax) was an 
 alien enemy at the time of Lord Fairfax's death, yet he never- 
 theless had legitimately inherited the estate under Fairfax's 
 will. That testament, Story held, could not be divested on 
 the ground of alienage, except by a specific official act, called in- 
 quest of office, or by some specific legislative act, or its equiva- 
 lent. A general act would not suffice for confiscation. And, 
 since no proceedings of escheat had ever been taken against 
 the estate before the adoption of Jay's Treaty of 1/94, there- 
 fore the defeasible title vested in the alien, Denny Fairfax, 
 was completely protected and confirmed by that treaty. 22 
 
 Justice Johnson was the only dissenting member of the 
 SupremeXTourt. He asserted that the disability of an alien 
 
 22 VII Cranch, 603. The area of land involved in the final determi- 
 nation of this suit is not stated. John Marshall and James Markham 
 Marshall received all the lands in " Leeds Manor," where their pos- 
 terity continued to reside. 
 
 In an article published in the Greenbag, issue of Dec., 1896, John 
 Marshall's great granddaughter, Sallie E. Marshall Hardy, writing from 
 family papers and correspondence, stated that in his latter years it was 
 Marshall's practice every year to pay a visit to his sons and estates in 
 Fauquier County. Marshall was also described as, a slaveholder, and 
 Leeds Manor was thus pictured in that article: "Leeds Manor is at 
 the foot of Little Cobbler Mountain. In all the world there is no more 
 beautiful spot." Of course, the article gave no hint as to how Marshall 
 obtained his estates.
 
 MARSHALL AND HIS CHIEF COADJUTOR, STORY 2/3 
 
 to hold real estate was a general principle of common law. 
 He declared with significant emphasis that Jay's Treaty of 
 1794 extended to rightful causes only. In the case of Smith 
 vs. the State of Maryland, he pointed out, the Supreme Court 
 of the United States had once sustained a specific confiscation 
 of lands, under a law of that State, although there was neither 
 conviction nor inquest of office. The Legislature of Vir- 
 ginia had like power to confiscate, Justice Johnson said. And, 
 after all, he added, the interest acquired under the devise was 
 a mere, shadowy scintilla juris which had been extinguished 
 by the grant to Hunter. 23 
 
 So Chief Justice Marshall and his brother managed to get 
 legal hold of the much-desired " Leeds Manor," by a decision 
 of his own court, handed down by an Associate Justice whose 
 fraudulent case, involving such immense interests, had been 
 decided favorably by Marshall three years previously. Story's 
 decision revealed an amazingly comprehensive intimacy with 
 all of the twists and turnings of ancient Virginia laws, legis- 
 lation and practices a knowledge that no other member of 
 the Supreme Court but Marshall had. In fact, it has never 
 been disputed that Story, in his Supreme Court career, was a 
 complete satellite of Marshall, and registered into decisions 
 the species of law dictated by Marshall ; Story himself prac- 
 tically acknowledged this. 
 
 Justice Livingston's Case. 
 
 Equally significant was the fact that virtually every mem- 
 ber of the Supreme Court was personally interested in some 
 case coming up for final decision. It would clearly seem that 
 each voted for the other's cases. Thus, in the very month 
 that the Fairfax case was argued, the case of Livingston and 
 Gilchrist vs. The Maryland Insurance Company came before 
 the Supreme Court. The Livingston in this case was none 
 
 23 VII Cranch, 631.
 
 274 HISTORY OF THE SUPREME COURT 
 
 other than Brockholst Livingston, at that identical time an 
 Associate Justice of the Supreme Court of the United States. 
 The case had gone against Livingston and Gilchrist in the 
 Circuit Court, in Maryland, and now came up on appeal. 
 When the case was passed upon by the Supreme Court, Justice 
 Livingston absented himself. Todd also kept away, probably 
 because of ill health, from which he greatly suffered. 
 
 The facts, as stated in the Supreme Court reports, revealed 
 a commercial turpitude not at all harmonizing with the lofty 
 qualities accredited to a Supreme Court Justice. Briefly, the 
 facts were : 
 
 Julian Hernando Baruso, a Spanish subject, had received a 
 royal license from Spain to import goods from Boston to 
 Peru and Buenos Ayres, and vice versa. This license was a 
 great asset ; the laws of Spain allowed trade under a Spanish 
 license only. On August 24, 1804, Baruso entered into a 
 contract with one Anthony Carroll to transport goods to 
 Lima ; Brockholst Livingston was Carroll's surety for the per- 
 formance of the contract. On January 25, 1805, war was 
 declared between Great Britain and Spain. Brockholst Liv- 
 ingston made a new contract with Baruso for the transporta- 
 tion of $50,000 worth of goods, " the funds and vessel to be 
 furnished and advanced by the said L." 24 The articles were 
 those of partnership with Livingston ; Baruso and Livingston 
 were to divide the profits equally, and Livingston was to get 
 commissions from the sale of the merchandise. On the re- 
 turn voyage a cargo was to be brought back. But war was 
 
 24 IV Cranch, 508. The profits of shipping merchants were extraor- 
 dinarily large. The Government extended credit for nine, twelve and 
 eighteen months before it demanded the payment of customs duties. As 
 soon as the ship arrived, the shipper often sold the cargo at a profit 
 of fifty per cent. Instead of having to use their profit and capital in 
 further ventures, the shippers had the gratuitous use of Government 
 money for periods from six months to a year and a half. Thus, John 
 Jacob Astor, who was primarily a snipper, had what was actually a 
 free-of-interest loan from the Government of more than five million 
 dollars. Hence, it is easy to see what the inducements were for going 
 into commerce.
 
 MARSHALL AND HIS CHIEF COADJUTOR, STORY 2/5 
 
 on and the cargo was liable to seizure and confiscation by 
 Spain or by British ships. Under the laws of Spain, trade 
 could be carried on only by special permission, and under 
 a Spanish name and Spanish papers. To meet this contin- 
 gency, Livingston shrewdly got Baruso to contract that he 
 (Baruso) would be answerable for the detention of the ship 
 or confiscation of the goods, and would pay the duties. 
 
 Livingston then bought the ship Herkimer, and entered into 
 a contract with Gilchrist, James Baxter and Edward Griswold 
 for the contribution of joint funds to buy the cargo. This 
 cargo was shipped to Lima, and'a return cargo was received ats 
 Guayaquil. 
 
 / 
 An Illegal Voyage and Fraudulent Papers. 
 
 On the return voyage, just after doubling Cape Horn, Bax- 
 ter, who was supercargo and First Mate, gave to Mate Giles 
 a bundle of papers to conceal. Near the port of New York, 
 the Herkimer was captured by the British warship Leander. 
 On searching the vessel, the British officers found two dis- 
 tinct sets of papers ; one set showing the cargo to be the prop- 
 erty of Baruso, and another set representing it to be that of 
 Livingston and the other three Americans. The Herkimer 
 was take'n as a prize to Halifax and condemned. 
 
 The Maryland Insurance Company refused to pay insur- 
 ance on the ground that it had insured against loss -by capture 
 warranted American property only. 
 
 The conflicting points in the resulting suit were: The in- 
 surance company claimed that the basis of the whole trade 
 with Peru was the fact that Baruso, as a Spanish subject, 
 had a royal license for the trade ; therefore the cargo was 
 under Spanish, not neutral laws, and, as such, was liable to 
 seizure and confiscation. On the other hand, Livingston and 
 Gilchrist contended that Baruso was then residing in New 
 York, was a neutral, and that the cargo was that of neutrals. 
 
 Attorney-General Pinckney set forth : " The concealment
 
 276 HISTORY OF THE SUPREME COURT 
 
 of the papers was unneutral, although the parties were jus- 
 tifiable in using them to protect their illegal trade. . . . 
 But this was not a concealment of innocent papers. It was 
 a concealment of papers tending to prove the property to he 
 belligerent. It increased the suspicions already excited by 
 other circumstances. Baxter was supercargo, and his acts 
 bind the others, although he was a partner. All the partners 
 are affected by the fraud of any one of them. . . . 
 
 " This concealment, connected with the other circumstances, 
 justified the condemnation. There were documents showing 
 the property to be in four Americans. Among the concealed 
 papers was a copy of the royal Spanish license authorizing 
 a Spanish subject resident in Boston to import goods into the 
 United States from the Spanish colonies. The adventure ap- 
 peared to be Spanish. It could only be carried on by a Span- 
 iard. 
 
 " There was also concealed another paper of great effect 
 a power of attorney from Baruso to Baxter, the super- 
 cargo, in which Baruso says the cargo ' is laden for me and 
 on my account and risk.' It proved the property to be in, 
 Baruso. It calls him a Spanish merchant. It showed his 
 national character to be belligerent, although he was resident 
 in another country." 25 
 
 Attorney-General Pinckney went on to say that Baruso " was 
 the cloak of the transaction," that there were two sets of 
 documents'; that Baxter prevaricated to the British, and that 
 there was nothing left for the British but to condemn the 
 ship and cargo. " Why did he [Baxter] show the neutral 
 papers only? The object was to defeat an acknowledged bel- 
 ligerent right, and he endeavored to deceive the adjudicating 
 court." 20 
 
 Confronted by this strong statement of facts, what did the 
 Supreme Court decide? 
 
 25 IV Cranch, 523-525. 
 ., 525.
 
 MARSHALL AND HIS CHIEF COADJUTOR, STORY 277 
 
 Marshall Decides in Favor of Livingston. 
 
 In deciding this case, Chief Justice Marshall turned a 
 somersault, holding, in effect, the precise opposite of what he 
 had held, a few years before, in the case of M'llvaine vs. Coxe. 
 Reversing the Circuit Court's decision, Marshall decided in 
 favor of Livingston and Gilchrist on these grounds : That 
 a Spanish subject who came to the United States at a time 
 of peace between Great Britain and Spain to carry on trade 
 between the United States and the Spanish provinces, under 
 a royal Spanish license, and who continued to reside in the 
 United States, and carried on trade, after the breaking out 
 of war, was to be considered an American merchant, even 
 although the trade could be lawfully carried on by a Spanish 
 subject only. 
 
 A second point in Marshall's decision was that the insurance 
 company ought to have known that the vessel would take all 
 the papers necessary to make the voyage legal in other 
 words, that deception would be practised. 
 
 This case is an example of what clearly appears to be 
 judicial logrolling for the others' interests. Likewise was a 
 case, later on, involving the interests of Associate Justice 
 Gabriel Duvall, who was an extensive Maryland landowner, 
 and closely affiliated with the Carrolls. 27 He had been ap- 
 pointed to the Supreme Court by President Madison, in 1811. 
 Many of Marshall's brothers and relatives were directors of 
 turnpike, ferry and canal companies in Virginia, and Mar- 
 shall and Justices Washington and Duvall were interested in 
 banks. 28 But how varied otherwise were their total inter- 
 ests, it is not possible to learn. 
 
 27 See, Case of Henry Cassell, Administrator, etc., vs. Charles Car- 
 roll of Carrollton, Wheaton's Reports, Supreme Court of the United 
 States, Vol. XI: 134-171. Justice Story decided this case in favor of 
 Carroll. This note appears in Wheaton's Reports, p. 153 : " Mr. Jus- 
 tice Duvall, being a landholder in Maryland, did not sit in this cause." 
 
 28 In the case of M'Gruder vs. The Bank of Washington (IX 
 Wheaton, 598), Marshall, Washington and Duvall did not sit.
 
 278 HISTORY OF THE SUPREME COURT 
 
 The High Virginia Court Denounces the Fairfax Decision. 
 
 It was fully a year after Story's Fairfax decision before 
 its tremendous import, especially as regarded the enormous 
 constitutional powers asserted and exercised by the Supreme 
 Court, in making that decision, were generally understood. 
 The subject of the recovery or restoration of confiscated es- 
 tates, or claims to them, had long been a sore and vital one 
 in many States. 29 But the events of the second war witli 
 Great Britain more or less subordinated other subjects and 
 agitations in the popular mind, and engrossed public atten- 
 tion. 
 
 When, however, in April, 1814, the Supreme Court of Ap- 
 peals of Virginia defied the mandate of the Supreme Court 
 of the United States in the Fairfax case, and declared that 
 in presuming to pass on appeal upon purely State litigations, 
 the Supreme Court of the United States had usurped powers, 
 there was a commotion. The sight of one exalted court de- 
 nouncing another was, indeed, unusual. 
 
 Point by point the judges of the Supreme Court of Appeals 
 of Virginia in seriatim form exhaustively reviewed the his- 
 tory of the Fairfax litigation, and exposed the legal sophistries 
 that had been employed to recover the estate. But the chief 
 burden of the Virginia court's excoriation of the Supreme 
 Court of the United States was in seeking to show that in 
 even hearing that case after it had been decided adversely 
 to the Fairfax claimants by the highest court in Virginia, 
 
 29 In New York and other States the same chicanery was used as in 
 Virginia. Of this, Governor Tompkins complained to the New York 
 Legislature, in his message, in 1812. " Our treasury," he said, " for 
 upwards of twenty years, has been constantly drained by the discharge 
 of pretended or real demands against confiscated estates." He added 
 that systems theretofore devised by the legislature " have been more or 
 less parried by speculative management or legal ingenuity. ... It 
 would, perhaps, contribute materially to lessen their amount in future, 
 were you to make void, and punish as fraudulent and criminal specu- 
 lators upon the State, all direct or indirect purchasers of them" [the 
 confiscated estates]. N. Y. Senate and Assembly Journals, 1812: 6.
 
 MARSHALL AND HIS CHIEF COADJUTOR, STORY 279 
 
 the Supreme Court of the United States had exceeded its 
 Constitutional powers. 30 The seriatim opinions of the judges 
 of the Supreme Court of Appeals of Virginia were penetrating 
 and unsparing. Knowing, as they did, the entire history of 
 the Fairfax case and John Marshall's purchase of the Fair- 
 fax claim, the Virginia judges must have been extremely in- 
 dignant to invite the contempt of the public for all courts. 
 They knew that the example- of one high court denouncing 
 the highest court in the country could not fail to undermine 
 respect for the courts ; for if courts themselves disagreed vio- 
 lently, what was the general^public to think? But this con- 
 sideration in nowise deterred the judges of the Virginia 
 court ; and each judge concluded his seriatim opinion with these 
 extraordinary pronouncements : 
 
 Refuse Obedience to the Supreme Court. 
 
 Judge Cabell : " Upon every view of the subject which 
 I have been able to take, I am of the opinion that the writ of 
 error was improvidently allowed, and that this court should 
 decline obedience to the mandate of the Supreme Court of the 
 United States." 31 
 
 Judge Brooks declared that the mandate was issued in vio- 
 lation of the Constitution of the United States, " and that 
 obedience to the mandate ought to be refused." 32 
 
 Judge Roane : " My conclusion consequently is, that every- 
 thing done in this cause, subsequently to the judgment of 
 reversal by this court is coram non judice, unconstitutional 
 and void, and should be entirely disregarded by this court. 
 
 33 
 
 Judge Fleming also denounced the action of the Supreme 
 
 30 Munford's Reports (Supreme Court of Appeals of Va.). Vol. 
 IV: 1-59- 
 
 ^Ibid., 16. 
 
 82 Ibid., 25. 
 
 33 Ibid., 54. Coram non judice that is, before a court which was 
 not the proper judge.
 
 280 HISTORY OF THE SUPREME COURT 
 
 Court of the .United States, saying that it was in violation of 
 the Constitution and that " it is inexpedient for this court to 
 obey the mandate in question." 34 
 
 This was the collective opinion of the judges of the Su- 
 preme Court of Appeals of Virginia, as entered on the rec- 
 ords : 
 
 " The court is unanimously of the opinion that the appellate 
 power of the Supreme Court of the United States does not ex- 
 tend to this court, under a sound construction of the Constitu- 
 tion of the United States ; that so much of the 25th sec- 
 tion of the act of Congress, to establish the judicial courts 
 of the United States, as extends the appellate jurisdiction of 
 the Supreme Court to this court, is not in pursuance of the 
 Constitution of the United States; that the writ of error in this 
 case was improvidently allowed under the authority of that 
 act; and that obedience to its mandate be declined by this 
 court." 35 
 
 Here was an unparalleled situation a State court refusing 
 obedience to the highest National judicial tribunal. How did 
 the Supreme Court of the United States meet it? Did the 
 Supreme Court hale up the Virginia judges for contempt of 
 court as they would have done had the defiance come from 
 ordinary men? By no means. It neither issued writs for 
 contempt, nor did it even remotely threaten imprisonment. 
 The issue came up before it in 1816, under the form of the 
 case of " Martin, Heir-at-law and Devisee of Fairfax vs. Hun- 
 ter's Lessee. 36 The question was elaborately argued as to 
 whether the Supreme Court of the United States had acted 
 within its Constitutional power. 
 
 Among the legal profession a singular interest was mani- 
 fested as to just what attitude the Supreme Court would take in 
 reply to the defiance of the Virginia Court of Appeals. 
 
 34 Munford's Reports, Vol. IV : 58. 
 
 35 Ibid., 58-59. 
 
 36 Wheaton's Reports (Supreme Court of the United States), Vol. 
 I: 304-382,
 
 MARSHALL AND HIS CHIEF COADJUTOR, STORY 28l 
 
 Story Pacifically Reaffirms His Decision. 
 
 Justice Story handed down the decision. Instead of casti- 
 gating the Virginia judges, he urbanely went out of his way 
 to say suave things of them, confining his decision to an ar- 
 gument that the Supreme Court of the United States had 
 acted constitutionally. 
 
 " The questions involved in this judgment," he held, " are 
 of great importance and delicacy. Perhaps it is not too much 
 to affirm, that upon their right decision rest some of the most 
 solid principles which have hitherto been supposed to sustain 
 and protect the Constitution. The great respectability, too, 
 of the court whose decisions we are called upon to review, 
 and the entire deference which we entertain for the learning 
 and ability of that court, add much to the difficulty of the 
 task which has so unwelcomely fallen upon us. . . ." 3T 
 
 Story decided that the appellate jurisdiction of the United 
 States Supreme Court extended to a final judgment or decree 
 in any suit in the highest court of law or equity of a State, 
 where was drawn into question these points: The validity 
 of a treaty, a statute of the United States, or an authority 
 exercised under the United States, in cases where the decision 
 was against their validity. This jurisdiction, he held, also 
 covered all cases where there was any question of the validity 
 or authority of a State law on the ground of its being repug- 
 nant to the Constitution, or to treaties, laws of the United 
 States, etc. 
 
 In brief, Story decided the Fairfax suit favorably to the 
 Marshall interests, and then when he was attacked by four 
 judges for having acted unconstitutionally, Story acted as a 
 judge on his own actions and decided that Story acted consti- 
 tutionally. 
 
 In these chapters we have given, for the first time, the 
 origin and history of the noted case, in 1816, of Martin vs. 
 
 37 ibid., 324.
 
 282 HISTORY OF THE SUPREME COURT 
 
 Hunter's Lessee, which case has ranked, in its assertion of 
 the sovereign powers of the Supreme Court of the United 
 States, as one of the most important in all of that court's an- 
 nals. But although a multitude of writers and lawyers have 
 cited the 1816 case, it has been reserved for this present work 
 to present the actual facts facts revealing that it originated 
 in Chief Justice John Marshall's own personal interests, al- 
 though no doubt, the Supreme Court would inevitably have 
 taken that stand at some other time and in some other case. 
 Those who have read the conventional glowing accounts of 
 Marshall's integrity may be tempted to inquire surprisedly : 
 Can this be so ? We answer : These are the facts as they are 
 set forth in the records.
 
 CHAPTER VIII 
 
 THE FURTHER COURSE OF THE SUPREME COURT UNDER 
 
 MARSHALL 
 
 From the time of the Fairfax decision to that of Marshall's 
 decease, covering a period of a score of years, four important 
 lines of action were determined by the decisions of the Supreme 
 Court of the United States. These were : 
 
 1. The intrenchment of the doctrine that a grant or allow- 
 ance of privilege to a corporation was an irrevocable vested 
 and perpetual right of property. 
 
 2. The extension of the principle of a widening of National 
 authority, and further concentration of power in the National 
 Government. 
 
 3. The perpetuation of negro slavery. 
 
 4. The validation of vast fraudulent private land claims 
 comprehending millions of acres of land in Florida and in the 
 Louisiana Purchase. 
 
 The Meaning of Successive Decisions. 
 
 The common belief that the first of these was originally set- 
 tled by the noted Dartmouth College decision is incorrect. 
 We have seen in detail, how, in the case of Fletcher vs. Peck 
 (that collusive suit for the validation of the act bribed through 
 the Georgia Legislature making a vast grant of 35,000,000 
 acres), Marshall decided that a legislative act was a contract 
 incapable of annulment by subsequent legislation. That deci- 
 sion was the first precedent. The case of New Jersey vs. Wil- 
 son, decided two years later, was the second. This case, ad- 
 mittedly bearing unfailing signs of collusion, was decided 
 
 283
 
 284 HISTORY OF THE SUPREME COURT 
 
 likewise by Marshall. He held that in passing a certain act, 
 the Legislature had forever contracted away the right to tax 
 certain private lands. The legislative act, so he decided, was 
 a " contract," and as such came within the scope of that 
 clause "in the Constitution prohibiting the impairment of the 
 obligation of contracts. 1 
 
 Thus, a legislative grant or franchise was construed into 
 being the same as a contract between private individuals. 
 In Marbury vs. Madison we have seen Marshall, in the very 
 act of annulling an act passed by Congress, ostentatiously 
 announcing that the Republic was founded on the principle of 
 rule by the people. The vaunted theory was that the peo- 
 ple were sovereign, and that legislatures were their plastic 
 representatives to transform their will into law. If the peo- 
 ple were sovereign, and legislatures their instruments, there 
 could, according to the logic of that theory, be no limit to 
 the legislative power of revoking any law found to be injurious 
 to the common welfare. But Marshall, while dexterously 
 using that theory as a pretext, demonstrated that the Supreme 
 Court of the United States was the sovereign, omnipotent 
 power. 
 
 Interpreted into plain language these decisions meant that 
 the living were to be ruled in perpetuity by the acts of the 
 dead ; the skeleton was to have his grip on the animate ; the 
 deeds of the rulers of past generations were to be engrafted 
 in the authority of law over all future generations. 
 
 It mattered not how much certitude of fraud and bribery 
 in particular, and turpitude in general, lay originally behind 
 definite acts or laws. The moment those laws became officially 
 engrossed and recognized as formally adopted, they were in- 
 vested with the full sanctity of perpetual law. The essence 
 was nothing; the form was everything. 
 
 That laws proved to be engines of fraud and spoliation for 
 
 1 Cranch's Reports, Supreme Court of the United States, Vol. VII : 
 164.
 
 FURTHER COURSE OP COURT UNDER MARSHALL 285 
 
 the benefit of the favored few, and causes of oppression to the 
 mass, was beside the point in the majestic eye of the Law. 
 What if, supposing special acts to have been honestly enacted, 
 they were self-evidently the archaic survivals of bygone times, 
 utterly lacking adaptation to the conditions of the mass of 
 newer generations? These considerations were of no effect; 
 law, which is merely the register of the will of the group or 
 class having the power to enact it, outlasts its creators ; long 
 after its authors have moldered in their tombs, and their very 
 names have often become lost in the phantasmagoria of Time, 
 their laws still stand, fresh, awful and commanding. 
 
 On examination, there will be found beneath this apparently 
 senseless course, not only acute sense, but a definite policy of 
 self-preservation and development. 
 
 Overlooking the special personal interests of the judges, and 
 appraising the vitals of their decisions as applied to the 
 broader question of class interests and conflicts, it will be 
 perceived that those decisions were harmoniously consonant 
 with the varying necessities of the dominant class. A number 
 of aggressive, acquisitive, predacious individuals in one gene- 
 ration seize property, or corruptly get grants and laws endow- 
 ing them with immense property and mighty privileges. They 
 become founders of a propertied aristocracy. By further laws 
 and predatory schemes, their descendants enlarge their heredi- 
 tary possessions, extend themselves as capitalists in multi- 
 farious ways, and by reason of their wealth, aggrandize them- 
 selves as the rulers of the land. They either hold the 
 important political and judicial offices themselves, or they 
 carefully select able instruments upon whom they can unre- 
 servedly depend. 
 
 The basis of their wealth and power is law, and the ad- 
 vantage taken of each changing condition by law. Their in- 
 terest obviously requires that those laws be held sacred and per- 
 petual, unless that same self-interest, keeping pace with altering 
 economic conditions, demands the supplanting of certain old,
 
 286 HISTORY OF THE SUPREME COURT 
 
 by newer, laws which, in turn, are to be enthroned as sacred 
 and perpetual. The ruling class can afford to take no chances 
 with the vicissitudes of legislation in a country where theo- 
 retically the popular will is sovereign. Nor can they tolerate 
 the prospect of being under constant alarm from the ever- 
 present fear of legislation threatening the ancient foundations 
 of their power. In America a theoretical popular representa- 
 tion conflicts, in principle, although not in practice, with capi- 
 talist aims. From the beginning, virtually all special plunder- 
 ing laws have been secured by fraud or bribery, or both. That 
 reason alone furnishes sufficiently conclusive grounds for the 
 annulment of those laws by a legislature determined upon 
 revocation. Hence, to declare that a legislative act is a con- 
 tract, and that no legislature, therefore, has the constitutional 
 power of voiding a contract, is to insure to the capitalist class 
 the permanency of possessions, corruptly gotten. 
 
 To this fabric one final finishing touch was needed ; this was 
 supplied by the Dartmouth College decision. 
 
 The Dartmouth College Case. 
 
 Concisely stated, the Dartmouth College case grew out of 
 these circumstances : Dartmouth College, in New Hampshire, 
 had been founded, in the year 1769, by a charter granted by 
 Governor Wentworth, in the name of the Crown. The presi- 
 dency of the college developed to be a sort of dynasty, the 
 first president, Eleazer Wheelock, having before his death in 
 1779, appointed his son, John Wheelock, to succeed him. In 
 about the year 1797, opposition to Wheelock manifested itself 
 on the part of members of the board of trustees. A long fac- 
 tional struggle, part religious, and in part political, then set 
 in to get control of the institution ; Wheelock was a Presby- 
 terian, his enemies Congregationalists ; they were Federalists, 
 and he was driven by force of circumstances into the opposite 
 political camp. As Congregationalism was practically the es- 
 tablished State church in New Hampshire, and as the Legis-
 
 FURTHER COURSE OF COURT UNDER MARSHALL 287 
 
 lature was Federalist, Wheelock's enemies were able to muster 
 large strength. In 1809, they captured control of the board 
 of trustees, and in 1815 summarily removed him from office. 
 
 But, in 1816, the anti-Federalists elected William Plumer 
 as Governor of New Hampshire, and a Legislature of the same 
 political cast. Acts were thereupon passed amending the char- 
 ter of Dartmouth College. The number of trustees was in- 
 creased from twelve to twenty-one, and a board of overseers 
 was created for the- purpose of exercising a veto power on 
 certain acts of the trustees. The outcome of these legislative 
 acts was the restoration of Wheelock to office, and the placing 
 of his adherents in virtual control. The college was reorgan- 
 ized, and called a university. 
 
 The old trustees opposed to Wheelock brought suit in the 
 New Hampshire courts to set aside the legislative acts on 
 these grounds: That those acts were opposed to the general 
 principles of government ; that they were contrary to various 
 provisions of the State Constitution ; and that they violated 
 the particular clause of the Federal Constitution forbidding 
 legislation impairing the obligation of a contract. The highest 
 New Hampshire court decided against the old trustees on 
 every point. 2 The case was then carried on appeal to the Su- 
 preme Court of the United States, but the only point involved 
 in that appeal was that relating to the contract clause in the 
 Constitution of the United States. 3 
 
 Daniel Webster, himself a graduate of Dartmouth College, 
 argued the case for the old trustees before the Supreme Court 
 of the United States. Webster, as we have noted, married, 
 after the death of his first wife, a daughter of Herman LeRoy, 
 whose acquisition, together with William Bayard and others, 
 of large estates that they themselves acknowledged to have 
 
 2 New Hampshire Reports, Vol. I: in. The full report of the case, 
 containing the arguments, is reprinted in 65 New Hampshire Reports, 
 
 473- 
 
 3 Case of Trustees of Dartmouth College vs. Woodward, IV 
 Wheaton, 518.
 
 288 HISTORY OF THE SUPREME COURT 
 
 been originally secured by fraud, has been described in Chap- 
 ter I. For many years, Webster was the regular attorney for 
 the Bank of the United States, the flagrant corruptions of 
 which are related in this chapter. He became the attorney for 
 the immense fraudulent Mitchell land claim, which was later 
 validated by the Supreme Court of the United States, and the 
 details of which are also narrated in this present chapter. As 
 a corporation lawyer, he was one of the most noted of his 
 day ; he was counsel for a large number of miscellaneous cor- 
 porations. 
 
 Did the Supreme Court Become Emotional? 
 
 In his biographical work on Webster, Senator Henry Cabot 
 Lodge says that, first of all, Webster adroitly appealed to 
 the partisan prejudices of the Supreme Court. Mr. Lodge 
 tells us that, 
 
 " In the midst of all the legal and constitutional arguments, 
 relevant and irrelevant, even in the pathetic appeal which he 
 used so well in behalf of his alma mater, Mr. Webster boldly 
 and yet skillfully introduced the political view of the case. So 
 delicately did he do it that an attentive listener did not realize 
 that he was straying from the field of ' mere reason ' into that 
 of political passion. Here no man could equal him or help 
 him, for here his eloquence had full scope, and on this he 
 relied to arouse Marshall, whom he thoroughly understood. 
 In occasional sentences he pictured his beloved college under 
 the wise rule of Federalists and the Church. He depicted the 
 party assault that was made upon her. He showed the citadel 
 of learning threatened with unholy invasion and falling help- 
 lessly into the hands of Jacobins and free thinkers." 4 
 
 Professor Goodrich, a spectator of the scene, wrote (ac- 
 cording to Mr. Lodge's quotation) that Webster, in the course 
 of his argument, predicted great disaster for all colleges, and 
 
 4 "Life of Webster" (American Statesmen Series), p. 87.
 
 FURTHER COURSE OF COURT UNDER MARSHALL 289 
 
 for the private rights of individuals, if the legislative acts 
 of New Hampshire should be upheld. Goodrich tells how " in 
 broken words of tenderness," Webster spoke pathetically of 
 his attachment to the college, and how Marshall and other 
 Justices were moved to tears. 
 
 If these accounts are correct, they throw a singular light 
 upon the Supreme Court of the United States. Professing to 
 live and move in an exalted atmosphere far above vulgar po- 
 litical currents and emotional considerations; asserting, reas- 
 serting and reiterating that sentiment never entered into their 
 deliberations and judgment, here some of them were being 
 swayed by partisan prejudices and upset by emotional appeals. 
 They who assumed the high proud role of being austere ex- 
 pounders of the law, unaffected by political passions or senti- 
 mental impressions, allowed themselves to be moved like an 
 audience by an actor's skillful pathos. 
 
 Where, then, was their boast that their only concern was 
 with the cold business of applying the law? Cases had been 
 before them revealing that thousands of families had been per- 
 emptorily driven from their homes, and reduced to destitu- 
 tion, by the claims and exactions of land -jobbers. But far 
 from causing a moist eye on the indurated Supreme Court 
 bench, those fraudulent claims had been justified and vali- 
 dated. The hard conditions burdening hundreds of thousands 
 of laborers had never caused the flutter of the eyelid. The 
 horrors of the slave traffic abominations which would seem 
 incredible were it not that so many reports attest them in- 
 stead of causing anguish, when the facts were frequently be- 
 fore the Supreme Court, were justified and their continuance 
 allowed. But the prospect of an obscure endowed college, de- 
 clining into disruption and adversity, so deeply excited their 
 commiseration that they, forsooth, were " moved to tears " ! 
 
 Those touching accounts, however, have a large element of 
 fiction. The members of the Supreme Court were too old 
 and too well seasoned not to penetrate acting when they saw
 
 2QO HISTORY OF THE SUPREME COURT 
 
 it. As an orator, Webster was sonorously rhetorical ; and, as 
 was the custom of the day, he artistically, like Pitt, combined 
 elocution with effective dramatic by-play. 
 
 The Justices' Class Interests and Views. 
 
 But to believe that such transparent artifices influenced any 
 of the members of the Supreme Court would be too far-fetched 
 a reflection upon their intelligence. No such methods had 
 been used in the Fletcher vs. Peck case, yet they had ren- 
 dered a decision which was the progenitor of the Dartmouth 
 College decision. Methods such as these were not necessary 
 to influence Marshall, Story and other Justices. Marshall's 
 own varied interests were at stake, as well as those of his 
 brothers and relatives, and in a vastly wider degree, those of 
 the whole class represented by him. Story had his bank, the 
 charter of which he had put through while Speaker of the 
 Massachusetts House of Representatives. Many of Story's 
 friends, political associates and former clients, were owners of 
 diverse corporation charters. 
 
 In fact, Story .made no attempt to conceal his timocratic 
 views that the property interests should dominate government. 
 He openly avowed his opposition to giving the propertyless the 
 right to vote. 
 
 This he did, in 1820, when he was a member of the Massa- 
 chusetts Constitutional Convention. There he made an elab- 
 orate argument for a continuing property qualification for vot- 
 ers. Eulogizing the rich, and at the same time minimizing 
 the danger from them, he appealed skillfully to the interests 
 and prejudices of the majority of delegates. 
 
 His argument was directed against the proposition to change 
 the basis of the Massachusetts Senate from valuation to that 
 of population. The wealth of " opulent and munificent citi- 
 zens . . . has spread itself into a thousand channels of 
 charity and public benevolence." It had " reared temples to 
 the service of the most high God," etc., etc. " My dread,"
 
 FURTHER COURSE OF COURT UNDER MARSHALL 2QI 
 
 he exclaimed, " has never been of the Senate, but of that mul- 
 titudinous assembly [the insurrectionists] which has been seen 
 within these walls, and may be again if times of political 
 excitement should occur." He pleaded further against " an 
 overwhelming representation " of the propertyless. 5 
 
 This speech, of an intensely class character, gives the clear- 
 est evidence of how Justice Story frankly exalted the supreme 
 rights of property. 
 
 Similarly, Justice Brockholst Livingston had his ramifica- 
 tions of interests, and so had all of the other Justices. Some 
 writers maintain that Story and Livingston had originally been 
 opposed to deciding in favor of the old trustees of Dartmouth 
 College, but that they had been gained over between the time 
 that the arguments were made and the date of the decision 
 in February, 1819. 
 
 In a sense, this might have been so ; if so, this point legiti- 
 mately occurs: Webster was long a powerful figure in the 
 Government. The Merchants' Bank of Salem, of which Story 
 was a director, and later president, secured the lucrative privi- 
 lege of having large sums of Government money placed on de- 
 posit in its treasury. Was this privilege, so long continued, 
 merely an altruistic expression of confidence in the soundness 
 of Story's bank? If Story had exhibited himself so zealous 
 in promoting the Congressional and legal ends of a case in- 
 volving a vast land grant conclusively proved to have been 
 obtained by fraud and corruption, would he nicely scruple at 
 other matters? Story, as we have seen, wrote before the 
 Fletcher vs. Peck decision, when he was attorney for Peck, 
 that he spent much of his time dining with the Supreme Court 
 judges. Did Webster frequently dine with Story? Shirley 
 says that Webster was busy, through various intermediaries, 
 reaching Chancellor Kent, who was a great friend of Justice 
 Brockholst Livingston, and that Webster, in August, 1818, 
 
 5 " Journal of Debates and Proceedings of the Massachusetts Con- 
 vention, 1820 " : 283-295.
 
 292 HISTORY OF THE SUPREME COURT 
 
 supplied Story with copies of his argument " to be distributed 
 by him to a portion of the judges." 
 
 Property Rights Prodigiously Extended. 
 
 When the decision was handed down by Marshall, all of 
 the Justices concurred except Duvall, who dissented without 
 filing an opinion, and Todd, whom illness kept away. 
 
 The grand essential of the decision was that corporate 
 charters and franchises were contracts ; that they were vested 
 property rights, in no way subject to repeal. This formidable 
 doctrine, representing nothing but the say-so edict of a hand- 
 ful of men, has become, perhaps more than any other single 
 decision, a constituent ingredient of judge-made constitutional 
 law. 
 
 What James Wilson, Gouverneur Morris and other pro- 
 moters of the Bank of North America had begun in the Fed- 
 eral Constitutional Convention of 1787, was now carried to 
 its logical conclusion. From the Dartmouth College decision 
 to the present day, capitalistic corporations have been enabled 
 to expand to a boundless reach of privilege and power. A 
 charter is a distinct property right; being property, the mere 
 legislative franchise right can be capitalized as tangible prop- 
 erty. Upon this legislative right vast sums of stock have 
 
 G " Dartmouth College Causes," 201. Webster was an attorney for 
 the Salem Bank, and other local banks. See, Mass. Reports, Vol. 
 XVII : 39, etc. 
 
 The fact of judges owning stock in bank, insurance and other com- 
 panies was such a notorious scandal, that finally, in 1836, a proposed 
 new Penal Code was suggested. Chancellor Kent'wrote to its author: 
 . . . " But I complain more loudly of your restraints on judges, at 
 p. 38. You prohibit a judge from receiving any gift, except by will, 
 from a stranger. Now I do think this is unjust, and assume an un- 
 warrantable distrust of judicial integrity. At p. 40 you go further, 
 and make it penal for a judge to be a stockholder in a bank or insur- 
 ance company. I have read this article with surprise. You might as 
 well make it penal for a judge to own houses and lands, or bonds 
 and mortgages, or even a beautiful and accomplished wife," etc., etc. 
 " American Jurist," Vol. XVI : 365. In the same letter, Kent wrote as 
 to offenses against injuries to property: "I am a friend to personal 
 chastisement and hanging" (p. 370).
 
 FURTHER COURSE OF COURT UNDER MARSHALL 293 
 
 been issued, which stock is nothing more or less than a colos- 
 sal, inexhaustible power of taxing the people on all necessities. 
 
 The Powers of the Government Expanded. 
 
 Two decisions now enlarged the powers of the National 
 Government. 
 
 The first of these, in the case of McCulloh vs. the State of 
 Maryland, was that by which it was decided that Congress 
 had power to charter a national bank. The charter of the 
 first Bank of the United States had expired in 1811. After 
 several years of prodigious lobbying, the promoters of its suc- 
 cessor, also called the Bank of the United States, managed to 
 get a charter from Congress. This bank was opened on Jan- 
 uary i, 1817; and it was of the Charleston, S. C., branch of 
 this institution that Joseph Johnson, brother of Associate Jus- 
 tice William Johnson, was president from 1818 to 1823. 
 
 Benton says that when Nicholas Biddle, long the president 
 of this Bank of the United States, had any communication to 
 make for the influencing of the public mind, he invariably 
 used John Quincy Adams as his intermediary. The means 
 by which the second charter was obtained from Congress were 
 not disclosed in official reports. But it appears from reports 
 made by an investigating committee of Congress, in 1831, 
 that a considerable number of members of Congress had been 
 for years on the payrolls of the bank, and that large sums, 
 under the guise of loans, had been given to editors and others 
 for the influencing of public opinion. 7 
 
 Benton cites a report made by a committee of stockholders 
 of the bank in which the statement was made that when, in 
 1830, the Bank of the United States began its fight for a re- 
 charter, nearly thirty million dollars, in loans, not of a mercan- 
 tile character, were made by Biddle. 8 The beneficiaries of 
 
 7 Reports Nos. 460-463. First Session, Twenty-second Congress, 1831. 
 8 " Thirty Years in the Senate," Vol. II : 365. Benton was long a 
 powerful politician, and a leader of the Democratic Party.
 
 294 HISTORY OF THE SUPREME COURT 
 
 these loans were, according to Benton, editors, politicians and 
 every approachable person of influence whose vote or voice 
 was useful in the attempt to perpetuate this chartered mo- 
 nopoly. During his tenure of office, Biddle paid out the great 
 sum of $1,018,000, for which no vouchers could be found," 
 and misappropriations by other officers of the bank were com- 
 mon. 
 
 Taken by itself, Benton's work might be open to the suspi- 
 cion of being one-sided, since he wrote retrospectively as an 
 intense partisan opponent of the Bank of the United States, 
 and he had been one of its most bellicose antagonists during 
 the series of years when the question of its chartering or aboli- 
 tion was one of the great political issues. 
 
 His statements, however, are not only borne out by the 
 reports of that institution itself, and of committees of Con- 
 gress, and court records, but even when he makes a general 
 statement such as the securing by the Bank of the United 
 States of a State charter from the Legislature of Pennsylva- 
 nia, in 1836, by bribery, he states the case correctly, although 
 omitting to give the specific facts. In point of fact, accord- 
 ing to the findings of an investigating committee appointed by 
 the Pennsylvania Legislature in 1840, the Bank of the United 
 States had corruptly expended $136,000 in Pennsylvania for 
 a recharter. 10 The fuller details of the continuing corrup- 
 tions and frauds of the Bank of the United States belong more 
 appropriately to a later chapter of this present work, where 
 they are described at length. That decision, in 1819, confirm- 
 ing the constitutional power of Congress to charter a bank, 
 may serve as a useful precedent in the project, now under 
 way, on the part of the great financial magnates, to establish 
 a Central Bank, with a complete monopoly of the money re- 
 sources of the United States. 
 
 The second case in which the Supreme Court of the United 
 
 9 " Thirty Years in the Senate," Vol. II : 366. 
 
 10 Pa. House Journal, 1842, Vol. II : Appendix, 172-531.
 
 FURTHER COURSE OF COURT UNDER MARSHALL 295 
 
 States extended the authority of the National Government was 
 in an action growing out of the various legislative acts of the 
 New York Legislature " granting a steamboat monopoly to 
 Livingston and Fulton. The rights to this monopoly had 
 passed by assignment to one Ogden, who had secured a per- 
 petual injunction in the New York Court of Errors against 
 Gibbons, a competitor and trespasser. In appealing to the 
 Supreme Court of the United States, Gibbons was really fight- 
 ing the cause of the whole commercial world which demanded 
 that the legal monopoly be abolished. 
 
 Chief Justice Marshall in 1824 declared the New York acts 
 void on the ground that they were repugnant to that clause 
 of the Constitution authorizing Congress to regulate com- 
 merce among the several States. 12 Coincident with the date 
 of this decision, and as a result of it, was the rise of one of 
 the largest present fortunes in America the Vanderbilt 
 fortune. Beginning in the steamboat business, Commodore 
 Cornelius Vanderbilt, by a policy of enterprise, extortion and 
 aggressiveness, and a huge system of blackmail, 13 obtained the 
 original millions enabling him later to become a railroad mag- 
 nate. 
 
 Another Livingston Representative Appointed. 
 
 That the Livingston family, however, was still a powerful 
 factor in National politics was shown by the appointment of 
 Smith Thompson, of New York, to succeed Brockholst Liv- 
 ingston (whose seat had become vacant in 1823), as an Asso- 
 ciate Justice of the Supreme Court of the United States. 
 Thompson had studied law with Chancellor Kent, that noted 
 expounder and defender of the all-pervading and dominating 
 rights of property as opposed to those of human life. Thomp- 
 
 11 Described in Chapter V. 
 
 12 Case of Gibbons vs. Ogden, IX Wheaton, 1-240. 
 
 13 The full facts are given in the " History of the Great American 
 Fortunes," Vol. II.
 
 296 HISTORY OF THE SUPREME COURT 
 
 son had married into the Livingston family, 14 and during the 
 decades of his career as a politician in New York, he had 
 represented the Livingston family's interests and aims. Thus 
 we see that from the time of the organization of the Supreme 
 Court of the United States, the Livingston family had four 
 direct or related representatives on that bench, in the persons 
 of John Jay, William Paterson, Brockholst Livingston and 
 Smith Thompson. It was virtually a succession of the Liv- 
 ingston dynasty. 
 
 Marshall Legalizes the Slave Traffic. 
 
 By this time, the question of negro, or chattel, slavery was 
 assuming acute proportions. A case came up before the Su- 
 preme Court of the United States, in 1825, which gave that 
 court the opportunity to pronounce slavery a legal institution. 
 This was the case of the Antelope, the facts of which were: 
 
 A privateer, called the Columbia, sailing under a Vene- 
 zuelan commission, had entered the port of Baltimore in 1819. 
 There, its captain had clandestinely taken on a crew of thirty 
 or forty men. The officers and most of the crew were United 
 States citizens. Proceeding to sea, the captain hoisted the 
 Artegan flag, and renamed the ship, the Arraganta. 
 
 The ship, fully armed, then went to the coast of Africa to 
 prey upon slavers. Off the coast of Africa, the Arraganta 
 captured an American vessel, the Antelope from Bristol, 
 Rhode Island, from which ship twenty-five negroes were 
 taken. The Arraganta also captured several Portuguese ves- 
 sels, and a Spanish ship, all filled with negroes torn from 
 Africa. The Arraganta and the Antelope then sailed together 
 to the coast of Brazil. There the Arraganta was wrecked, 
 and her captain and most of the crew were made prisoners. 
 The remainder of the crew, together with the guns and other 
 armament of the Arraganta, were transferred to the Antelope. 
 
 14 See, Alexander's " A Political History of the State of New York." 
 Vol. I: 155.
 
 FURTHER COURSE OF COURT UNDER MARSHALL 297 
 
 Captain John Smith then renamed the Antelope the General 
 Ramirez. In the hold of this vessel were all of the negroes 
 that had been captured by the privateer, the Arraganta. 
 
 Smith's object was to sneak into some port and sell the 
 slaves. But while the slaver was hovering near the southern 
 coast of the United States, she was sighted by the U. S. rev- 
 enue cutter Dallas, captured, and taken to the port of Savan- 
 nah for adjudication. At the time of her capture, about two 
 hundred and eighty slaves were found on board ; at least a 
 third more had died from the cruelties of the voyage. 
 
 When the ship arrived at Savannah, four different claimants 
 came forward. Both the Portuguese and the Spanish Vice- 
 Consuls claimed the ownership of the negroes. Captain John 
 Smith also put in his claim as having captured them jure 
 belli. The fourth claimant was the United States Govern- 
 ment, which demanded that they be surrendered because of 
 their having been transported from Africa in violation of the 
 laws of the United States. The Government maintained that 
 they were entitled to their freedom by the laws of nations. 
 
 The lower court dismissed Smith's claim ; as a matter of 
 fact, Smith was only acting for an American capitalist, en- 
 gaged in the slave trade, who did not dare avow himself. The 
 claim of the Government was also dismissed, except as to that 
 portion of the negroes which had been originally taken from 
 the Antelope. The remainder of the negroes were divided 
 between the Spanish and Portuguese claimants. This was the 
 state of the case when it came up on appeal before the Su- 
 preme Court of the United States. 
 
 The Doctrine of Acquiescence Again Applied. 
 
 Chief Justice Marshall began his decision with his usual 
 concession of regard for public sentiment and proprieties. 
 The slave trade, he said, was abhorrent. That, he went on, 
 " it is contrary to law of nature will scarcely be denied. That 
 every man has a natural right to the fruits of his own labor
 
 298 HISTORY Or THE SUPREME COURT 
 
 is generally admitted ; and that no other person can rightfully 
 deprive him of those fruits, seems to be the necessary results 
 of this admission. 
 
 " But," he went on, with a sudden and incongruous line of 
 reasoning, " from the earliest times war has existed, and war 
 confers rights in which all have acquiesced." The query can 
 here be interjected: To what war did Marshall refer? The 
 primitive negro tribes of Africa were not warring on any na- 
 tion ; even the most distorted imagination could not conceive 
 the idea of an aboriginal people armed with clubs making 
 war on nations equipped with battleships and other modern 
 implements. What actually was happening was the invasion 
 of Africa by gangs of heavily-armed desperate whites, in the 
 hire of capitalist slave traders, forcibly tearing away helpless 
 negroes to sell them as slaves, if, perchance, they survived 
 the brutal rigors of the long voyage to the slave marts. 
 
 Mr. Key, counsel for the Government in this case, had 
 pointed out in his argument, ." Slaves are no longer acquired 
 merely by capture in war, or by trade ; but free persons are 
 seized and carried off by their traders and their agents. Wars 
 are instigated by them for the mere purpose of making slaves. 
 The persons enslaved are clandestinely brought away, under 
 circumstances of extreme cruelty, aggravated by the neces- 
 sity of concealment, and smuggled into every country where 
 the cupidity of avarice creates a demand for these unhappy 
 victims. . . ." 15 Loaded down with chains, badly fed, 
 huddled together on the slave ships, many of them swept 
 away by disease or cruelty or change of climate this was 
 the fate of tens of thousands of negroes, snatched from their 
 native land. And this is what Marshall accepted as " war " ! 
 
 Here, too, we see Marshall justifying the horrors of the 
 slave trade with that identical doctrine of acquiescence that 
 he had advocated, as an attorney, thirty-eight years previously, 
 
 15 Wheaton's Reports, Supreme Court of the United States, Vol.
 
 FURTHER COURSE OF COURT UNDER MARSHALL 299 
 
 in pleading for the validation of the Fairfax estate, admit- 
 tedly obtained and held by fraud. " Among the most en- 
 lightened nations of antiquity," his Antelope decision read on, 
 referring to the rights of victors, " one of these was, that the 
 victor might enslave the vanquished. This, which was the 
 usage of all, could not be pronounced repugnant to the law of 
 nations, which is certainly to be tried by the test of general 
 usage. That which has received the assent of all, must be 
 the law of all." 
 
 The trifling circumstance that the enslavement of captives 
 had never received the assent of the captives themselves, was, 
 of course, ignored by the eminent Chief Justice Marshall. 
 According to this doctrine, the assent of those who found 
 slavery profitable became the assent of all, and therefore took 
 position as a law of general usage. Whatever benefited the 
 ruling class became, ipso facto, a settled principle of acquies- 
 cence. One of the fine theories of law was that anything ex- 
 torted under duress was illegal and invalid. But Chief Jus- 
 tice Marshall saw no duress in the ravaging, kidnapping and 
 enslavement of a race helpless against the wiles and guns of 
 white slave traders enriching themselves in a harvest of 
 blood, death and agony. In Chief Justice Marshall's exalted 
 mind, this became " acquiescence." 
 
 " Slavery, then," Marshall continued, " has its origin in 
 force ; but as the world has agreed that it is a legitimate result 
 of force, the state of things which is thus produced by general 
 consent, cannot be pronounced unlawful." 1(i 
 
 After reverting to the usage of the ruling classes of more 
 savage ages for precedents, Marshall, knowing that these 
 grounds would be fiercely attacked, proceeded ingeniously to 
 qualify himself. 
 
 Although, he went on, the old harsh law of war had been 
 exploded, and war was no longer to be considered as giving 
 a right to enslave captives, yet " Africa has not yet adopted 
 
 18 Ibid., 120-121,
 
 300 HISTORY OF THE SUPREME COURT 
 
 these principles." So far as the test of international law 
 went, " it is decidedly in favor of the legality of the trade." 
 For nearly two centuries the slave traffic, he concluded, had 
 been carried on without opposition and without censure. This 
 was a glaring falsehood; nearly all the European nations had 
 begun to outlaw the traffic as piracy, and Congress itself 
 had passed laws aimed at the slave traffic. 17 It was to cir- 
 cumvent those very laws that the slave traders placed their final 
 expectations in the Supreme Court of the United States. " A 
 jurist," Marshall ended, " could not say that a practice thus 
 supported was illegal, and that those engaged in it might be 
 punished, either personally or by deprivation of property." 18 
 
 The widening economic conflict between the capitalists of 
 the different sections over slavery, was exactly reflected in 
 the Supreme Court of the United States. In Massachusetts 
 and Rhode Island where cheap, so-called free white labor was 
 used, the owners of the mills, profiting richly, were definitely 
 committed to that system, and more and more were aligning 
 themselves against the expensive, archaic chattel slavery sys- 
 tem. 
 
 By 1830, according to official statistics reproduced in 
 Davenport's Gazetteer for the year 1833, there was not a 
 single slave in Maine, New Hampshire, Vermont and Massa- 
 chusetts, and very few in other Northern States. But of the 
 entire number of 2,010,436 slaves in the United States in 
 1830, Virginia had the greatest proportion of any State; it 
 held 469,724 slaves within its borders. 
 
 The State of Virginia, in fact, was a negro-raising region 
 for other States. In his " Rise and Fall of the Slave Power 
 in America," Wilson relates that the breeding of slaves in Vir- 
 ginia for the domestic slave traffic became so enormous that in 
 
 17 The slave trade was prohibited to American citizens by acts of 
 Congress of 1794, 1800 and March 3, 1819. Each act increased the 
 penalties, finally prescribing capital punishment for violation and con- 
 viction. 
 
 18 X Wheaton, 122. Marshall reversed part of the lower court's de- 
 cision and affirmed other portions.
 
 FURTHER COURSE OF COURT UNDER MARSHALL 3OI 
 
 1836 it was estimated that the number sold from the single 
 State of Virginia was 40,000, yielding a return of $24,000,000. 
 Thus we clearly see Marshall's decisions exactly representing 
 the economic interests of his State and section. He, himself, 
 as we have seen, was a slave owner; he had his agricultural 
 estates, and he owned a large residence which he had built, 
 surrounded by spacious grounds, on Shockhoe Hill, in Rich- 
 mond. On the other hand, Story's attitude toward negro slav- 
 ery was generally consonant with that of his native State of 
 Massachusetts, where there were no negro slaves, but certain 
 of the shipowners of which profited from the African slave 
 trade. 
 
 Negro slavery, not being profitable, had passed into dis- 
 use in the North, although the traffic in ravishing Africa of 
 negroes was extensively carried on by Northern shipowners, 
 and up to the very outbreak of the Civil War, considerable 
 New England, New York and Philadelphia capital was in- 
 vested in the business of slave procuring. A system allow- 
 ing the unrestricted exploitation of white men, women and 
 children for fourteen hours every working day in the mills, 
 and paying from $1.75 to $2.00 a week to women, and less 
 to children, presented its superior advantages over the chattel 
 slavery system. That many of the workers were swept to a 
 premature death by disease contracted in the factories, or in 
 foul habitations, or by accidents while plying their trade, en- 
 tailed no economic loss to the mill owners. Unlike negro 
 slaves, they were not merchandise or property; they did not 
 have to be fed or cared for ; no financial loss to the employer 
 was caused by their sickness or death ; they could easily be re- 
 placed, so lorfg as there was a surplus of labor. 
 
 This the South, being an agricultural country, filled with 
 anachronistic views of past ages, and mostly provincial in 
 character, neither understood nor saw, although as far back 
 as the eighteenth century there were a few like Robert Carter, 
 of Virginia, who clearly perceived that the negro slave system
 
 3<D2 HISTORY OF THE SUPREME COURT 
 
 could not compete in efficiency or inexpensiveness with white 
 labor. Added to the views growing out of the economic in- 
 terests of the Northern capitalists, was a sincere agitation 
 for the restriction of slavery or the emancipation of the 
 slave. This movement had no concern with factory interests 
 or profits, but was moral in its nature. Its advocates were 
 impelled by an humanitarian spirit, and were indomitable in 
 preaching it, often coming into collision with an inimical dis- 
 play of mob passion. 
 
 The "Plattsburg" Case. 
 
 Associate Justice Story faithfully represented the views and 
 interests of men of capital of his section. On all other is- 
 sues, affecting questions of property, he and Marshall co- 
 hered; he (as he admitted) docilely accepted Marshall's lead, 
 and Marshall's construction, not of what law was, but of what 
 the law should be. On the issue of slavery, however, they 
 differed, Story pronouncing himself opposed to negro slavery. 
 
 In the case of the Plattsburg, Justice Story had his oppor- 
 tunity to express himself. At least, we take his decision on 
 its face value, although the Supreme Court had a way of 
 continuously playing politician, and after handing out a noted 
 decision bound to serve as a leading precedent, would seek 
 to allay strong criticism in various quarters by rendering a 
 radically different decision in another, and less-important, 
 case. Not one of the members of the Supreme Court had 
 been other than a chronic politician ; when placed on that high 
 bench most of them were well along in years, and irreclaim- 
 ably addicted to politics, by nature and choice. as well as by 
 interest. 
 
 The Plattsburg was an American vessel, registered at Balti- 
 more. That city, it may be remarked, was one of the most 
 active of slave traders' centers; capitalists of great standing 
 and large and varied interests were concerned in the traffic;
 
 FURTHER COURSE OF COURT UNDER MARSHALL 303 
 
 and their chief attorney, before the Supreme Court of the 
 United States, at this time, was, as we shall see, none other 
 than Roger B. Taney, Marshall's successor as Chief Justice. 19 
 The Plattsburg, in 1819, cleared the port of Baltimore os- 
 tensibly for St. Thomas, West Indies. But she dropped an- 
 chor down the Chesapeake Bay, " and afterwards (if the 
 witnesses are to be believed), some grape, cannister and round 
 shot were taken on board, and, on stowing them away, a bar- 
 rel of irons, or handcuffs, was discovered, which was not 
 contained in the manifest of the cargo." 20 The Plattsburg 
 then went to St. Jago de Cuba, where she discharged a cargo 
 that had been taken aboard at Baltimore for the sole purpose 
 of lulling suspicions. From St. Jago de Cuba she sailed 
 straight for Africa, to engage in the slave trade. 
 
 Justice Story Denounces Slavery But 
 
 Caught red-handed, the Plattsburg, after capture, was con- 
 demned at the port of New York. That condemnation Jus- 
 tice Story affirmed. " This," he said (thereby directly con- 
 tradicting Marshall's assertions in the Antelope decision, 
 rendered in the same year), "is not the case of an ordinary 
 trade, where no disguise is necessary or useful. It is the 
 case of a trade prohibited to American citizens under very 
 heavy penalties, penalties which have since been aggravated 
 to the infliction of capital punishment. It is a trade odious 
 in our country, and carries a permanent stain upon the repu- 
 tation of all who are concerned in it, and is watched by the 
 severest vigilance of the Government. If carried on at all, 
 it must, therefore, be carried on by Americans, under the 
 disguise of foreign flags ; and, it is notorious, that in the 
 colonial ports of Spain there is little difficulty in procuring all 
 of the apparatus for the use of the national flag. . . ." 2l 
 
 19 See details in Chapter IX. 
 
 20 X Wheaton, 137. 
 
 21 Ibid., 142-143.
 
 304 HISTORY OF THE SUPREME COURT 
 
 This decision read exceedingly fair, yet the question 
 merely concerned that of condemnation of ship property, and 
 not the punishment of the capitalist promoters. When, only 
 shortly after this, one of the richest and most notorious slave- 
 traders of Baltimore had been indicted, it was Story that, 
 upon Roger B. Taney's plea, set aside the indictment as 
 " fatally defective " on technical grounds. 22 
 
 Spoliation of the National Domain. 
 
 The struggle of the slave power to maintain its institutions 
 was accompanied by a corresponding great effort of South- 
 ern plantation owners and politicians, allied with Northern 
 capitalists, to seize for their private ownership immense areas 
 of land, both in the original territory of the United States, 
 and in the vast regions acquired by the purchase of Louisiana 
 and the cession of Florida. Side by side with this appropria- 
 tion, was a like movement on the part of Northern capitalists 
 to get hold of the richest and most valuable areas of public 
 lands in the North, West and Northwest. 
 
 Single individuals, or corporate companies of powerful 
 personages, obtained tens of millions of acres of public do- 
 main. This was done in either one or both of two ways. 
 One method was to get huge tracts of land by corrupting the 
 land officials to sell them for a trifling sum; in these great 
 frauds nearly every politician of note was involved, either 
 directly or indirectly, some pecuniarily, others as attorneys, 
 
 22 See, Chapter IX. These two decisions those of Marshall and 
 Story practically extended the fullest license and immunity to the 
 slave traders. Wilson tells in his " Rise and Fall of the Slave Power 
 in America " that the time came when there were at least 100,000 
 negroes who had been snatched from Africa and sold in the United 
 States and that they were held in bondage despite the plain laws on the 
 subject forbidding the importation of negro slaves. The traffic in 
 slave trading was large and continuous, and the profits were so enor- 
 mous that the slave traders looked with complacency upon the loss 
 of part of their human cargo. It was cheaper to herd the negroes in 
 foul quarters on the ships and lose some of them than to go to the 
 expense of providing adequate room, shelter and food.
 
 FURTHER COURSE OF COURT UNDER MARSHALL 305 
 
 and still others as compliant instruments. The second method 
 was to present private land claims, covering enormous 
 stretches of land, alleged to have been granted by French, 
 British or Spanish governors. 
 
 That many of these proved thefts were successful was due 
 largely to decisions of the Supreme Court of the United 
 States. These decisions, in turn, served as commanding 
 precedents in later justifying similar private claim defraud- 
 ing from the Government of more than 20,000,000 acres of 
 the most valuable lands in California, New Mexico, Colorado 
 and other portions of the territory conquered from Mexico. 
 
 Another prefatory significant fact may be mentioned in this 
 place: Just as the first Justices of the Supreme Court of 
 the United States represented the combined old and newer 
 landed interests, so it will be seen presently that the compo- 
 sition of the Supreme Court changed so as consistently to 
 reflect the interests of the three dominant, aggressive sections 
 of the capitalist class fighting at this time either to retain old 
 conditions or to establish in law the objects of their struggle. 
 These three sections were : 
 
 1. The triumphant slave-owning aristocracy, keeping its 
 hold on Government until the Civil War. 
 
 2. The owners of chartered State banks, opposed to the 
 monopoly of Government deposits held by the Bank of the 
 United States. They came into power with Jackson's election. 
 
 3. The private land claim speculators and monopolists 
 bending every effort to have the courts validate their wresting 
 of such vast areas of public land. Closely associated with this 
 section was another section the individuals or corporations 
 securing immense tracts of public lands by fraudulent legisla- 
 tion or by outright fraud. 
 
 A Recital of Some Land Frauds. 
 
 With this general prelude, we shall now proceed to narrate 
 the facts as to the private land claims. So profuse, however,
 
 306 HISTORY OF THE SUPREME COURT 
 
 are the facts that it will be necessary to present them in as 
 compendious, yet withal, as comprehensive, a form as is pos- 
 sible with so prolific a fund of material. Such an exposition 
 is necessary to an understanding of some extraordinary deci- 
 sions rendered by the Supreme Court under Marshall and his 
 successors. 
 
 The Louisiana Purchase in 1805 added the huge area of 
 750,000,000 acres to the national domain; in this acquisition 
 was included the entire surface of the present States of Lou- 
 isiana, Arkansas, Missouri, Iowa, Nebraska, and Oregon, all 
 of Minnesota west of the Missouri River, all of Kansas ex- 
 cept a small corner, all of the Dakotas, Montana, Idaho, Wash- 
 ington, Indian Territory, and those portions of Alabama and 
 Mississippi south of the thirty-first parallel. The cession of 
 Florida, by Spain, in 1819, augmented the extent of the public 
 domain by 38,000,000 acres. 
 
 The population of the United States, in 1800, was 5,319,762. 
 In 1810, it stood at 7,230,903, and ten years later was nearly 
 10,000,000. Compared to the enormous extent of public do- 
 main, this was an extremely small population. 
 
 But much of the accessible area in the East had already 
 been acquired by men and methods described in previous chap- 
 ters. A certain number of emigrants had drifted to the West, 
 but by far the greatest portion were compelled to remain and 
 congest in the East. 23 While allowing capitalists to get hold 
 of millions of acres, the laws placed the greatest obstacles in 
 the way of the poor. 
 
 Until the year 1800, public lands could not be bought in 
 tracts of less than about five thousand acres. A bill author- 
 izing the sale of public lands in alternate half and*quarter sec- 
 tions was defeated in the Senate, but a compromise finally 
 
 23 A report of a select committee of the House of Representatives, 
 February 25, 1829, said that the " population of part of the eastern 
 section of our country has nearly reached its highest point; its surplus 
 is filling up New York and tends strongly toward the West." " Ameri- 
 can State Papers : Public Lands," Vol. VII, Doc. No. 747.
 
 FURTHER COURSE OF COURT UNDER MARSHALL 307 
 
 agreed upon permitted the sale in whole and half sections. 
 This concession was of little effect. Gallatin, Secretary of 
 the Treasury, reported to Joseph Nicholson, Chairman of the 
 House Committee on Public Lands, on January 2, 1804, that 
 poor individuals could not purchase less than 360 acres ; that 
 in order to become freeholders, they had to pay $160, and be- 
 come bound for $480 more, payable in four years. If they 
 had no other resources, it was impossible for them to draw 
 means of payment from the produce of the land. 24 Wages 
 were so low, and money so scarce, that for the average wage 
 laborer to raise a few hundred dollars was an almost insuper- 
 able task. If he borrowed it, he had to pay usurious interest. 
 
 On the other hand, politicians and capitalists were able to 
 get unlimited areas of land, either by outright legislative or 
 Congressional gift, or by fraudulent purchase at auction " on 
 credit" from the Government. Having secured great areas 
 of valuable land, the acquiring capitalists held such parts of 
 it as contained mineral deposits, timber and other resources, 
 and formed corporations to exploit their largess. Other parts 
 adapted to agriculture were either turned into great farming 
 estates, or were sold in small tracts, to actual settlers, at 
 exorbitant rates. A Senate Committee, on February 9, 1812, 
 estimated that not less than 30,000,000 acres of uncultivated 
 land in the States and Territories west of the Alleghany 
 Mountains were held by individuals. 25 
 
 It was pointed out in a report at the time that the policy 
 of selling the public lands to the highest bidder resulted in 
 this inequality: That the intending settler had to consider 
 how much his labor would yield him, while the speculator had 
 only to calculate the profits arising from the labor of others. 
 A petition to Congress, in 1814, that every person above the 
 
 24 Doc. No. 91, Eighth Congress, First Session. 
 
 25 " American State Papers : Public Lands," Vol. II : 441. The report 
 does not state the number of individuals. But that a great part of 
 this vast area was held for speculative purposes is distinctly set forth 
 in the report.
 
 308 HISTORY OF THE SUPREME COURT 
 
 age of eighteen years be allowed to hold 160 acres of public 
 lands, by virtue of settlement, at the price of twelve and a half 
 cents an acre, payable in seven years, without interest, was 
 rejected, on the ground that its adoption would be offering 
 " a bounty to intemperance and imprudence." 2G Congress 
 was rilled with land speculators, or their obtrusive attorneys 
 and lobbyists. Denying the right of land to the poor, Con- 
 gress passed law after law making it easier for capitalist land 
 speculators to buy enormous tracts. By September 30, 1822, 
 " credit purchasers," mostly comprising those non-resident 
 speculators, owed the Government a total of nearly $10,550,- 
 ooo. 27 Petitions to Congress to pass a law for the selling of 
 the public lands at fifty cents an acre were unavailing. 28 
 
 With the acquisition of Louisiana and Florida fraud was 
 extended to a stupendous degree. 
 
 The old settlement laws of Great Britain, Spain and France 
 prescribed various restrictions in the granting of land. The 
 code of laws applying to all of the ultramarine provinces of 
 the Spanish Empire gave to settlers a quantity of lands ac- 
 cording to their station, the gentleman's portion being at least 
 five times the peasant's, and the compliance of certain condi- 
 tions of settlement and cultivation was demanded. 20 Even 
 when large grants were made by corrupt governors, the car- 
 rying out of certain specific conditions of settlement was 
 called for. The old French grants in what is now Michigan 
 contained twenty distinct and specific conditions ; if they were 
 not fulfilled, forfeiture was declared. Among other provi- 
 sions, timber and mines did not pass with the grant. If the 
 grantee sold brandy to the Indians, his grant was confiscated. 
 The Government held the prior right of buying his land. 
 Each of these and other conditions were inscribed in the con- 
 
 2 . 6 " American State Papers : Public Lands," Vol. II : 
 
 27 Executive Reports, First Session, Eighteenth Congress, 1824, Re- 
 port No. 61. 
 
 28 U. S. Senate Docs., 1824-25, No. 25, etc. 
 
 29 See, Book IV, Chapter XII, Collection of the Laws of the Indies.
 
 FURTHER COURSE OF COURT UNDER MARSHALL 309 
 
 tract or grant. 30 The British laws, as we have seen, strictly 
 limited the area in a grant of land to any one individual. 
 
 The Forging and Antedating of Land Grants. 
 
 As early as 1803, it seems, the industry of forging and ante- 
 dating land grants was briskly begun in Louisiana. No 
 doubt, this would not have been done with such assurance 
 and on so great a scale had not the state of affairs in the 
 United States warranted the belief, or at least the hope, that 
 there were good chances of ultimately securing the validation 
 of those spurious grants. Under the Republic of the United 
 States, virtually no restrictions were placed upon the individ- 
 ual acquisition of large bodies of land ; the capitalist could 
 have his own way ; and with Congress, the executive depart- 
 ments and the courts long composed of men largely them- 
 selves interested in land transactions, fair opportunities were 
 presented of consummating the fraudulent schemes. It 
 would take some time but it could be done. 
 
 A communication dated September 8, 1803, from a Gov- 
 ernment officer, in Mississippi Territory, to Gallatin, gave 
 warning of what was going on. Describing the prevalent 
 practices in the newly-acquired Territory of Louisiana, the 
 writer went on : " I have no doubt of the correctness of my 
 information that a vast number of adventurers, many of them 
 from this territory, are daily making extensive surveys, on the 
 west side of the Mississippi ; and Spanish officers have lately 
 set up claims to, and are now disposing of, large tracts, some 
 even of sixty miles square, at reduced prices; in some in- 
 stances, not more than ten cents per acre. 
 
 " It seems that the respectable citizens of this territory, 
 who have spurned the nefarious offer, have been invited to a 
 participation in the harvest of iniquity; the inviters alleging 
 that land of the first quality might be obtained for a few cents 
 
 30 See, "American State Papers: Public Lands," Vol. I: 282. (Doc. 
 No. 126.)
 
 3io 
 
 HISTORY OF THE SUPREME COURT 
 
 an acre; and respecting titles, as good as may be had (say 
 they) are those by which lands are held on this side of the 
 river. 
 
 " A knowledge of former transactions in this territory, dur- 
 ing the interval between the treaty of 1795, and evacuation by 
 the Spanish Government, will lead one to an easy solution of 
 the mystery by which this peculation will be veiled. The war- 
 rant of survey, the surveyor's certificate, and the final grant, 
 will bear concurrent date, prior to the cession of Louisiana to 
 France. 
 
 " I am told that in most, if not all, cases, these surveyors 
 are Spanish subjects, and their assistants and chain carriers 
 Spanish soldiers, who will probably move off with the Span- 
 ish Government. I therefore apprehend that for any tribunal 
 hereafter to discriminate between the just and the fraudulent 
 claim will be difficult, even if oral testimony be admitted ; but 
 if, to its exclusion, the Spanish record be paramount evidence, 
 impossible." 31 
 
 Another correspondent, in a letter dated September 29, 
 1803, written from New Orleans to Gallatin, wrote as re- 
 garded the territory then called West Florida (forming the 
 gulf lands in what are now parts of Alabama and Mississippi), 
 that " the intendant here, probably foreseeing the cession, has 
 opened a sale, within these few days, for the uninhabited 
 lands in that province; and orders of survey have, I believe, 
 been already *ssued for three or four hundred thousand 
 acres." The writer went on fo say : " No individual thinks 
 of purchasing less than forty to fifty thousand acres, the value 
 of which may be estimated from twelve to twenty-five cents 
 an acre, to be paid by different installments. I presume that, 
 within ten days from this time, orders of survey will be is- 
 sued for every acre of vacant land in West Florida. . . ." 32 
 
 31 " American State Papers : Public Lands," Vol. 1 : 188. (House 
 Doc. No. 94, Eighth Congress, First Session.) 
 32 Ibid., 188-189.
 
 FURTHER COURSE OF COURT UNDER MARSHALL 311 
 
 Land Grants to Corpses. 
 
 A third communication, dated October 18, 1803, from a 
 United States officer at Kaskaskia, 33 Louisiana Territory, to 
 Gallatin, read : 
 
 " You have no guess how the United States are imposed 
 upon by the Spanish officers since they have heard of the 
 cession of Louisiana. Grants are daily making for large 
 tracts of land and dated back ; sorne to men who have been 
 dead fifteen or twenty years, and transferred down to the 
 present holders. These grants are made to Americans, with 
 a reserve of interest to the officer who makes them ; within 
 fifteen days the following places have been granted, to- wit: 
 forty-five acres choice of the lead mines, sixty miles from 
 this, heretofore reserved to the Crown of Spain ; the iron mine 
 on Wine Creek, with ten thousand acres around it, about 
 eighty miles from this place, and formerly reserved to the 
 Crown of Spain ; sixty thousand acres, the common touching 
 St. Louis, heretofore given by the Crown of Spain to the in- 
 habitants of the village (though of doubtful value), and fif- 
 teen thousand acres adjoining; and many other grants of ten, 
 fifteen, twenty and thirty thousand acres have been made. I 
 could name persons as well as places." 3 * 
 
 These and other communications, together with a complaint 
 of the United States Board of Commissioners (appointed 
 to provide for the disposal of lands south of Tennessee), that 
 the poor, actual settler had great difficulty in getting land, 
 were sent by Gallatin to Congress. The Board of Commis- 
 sioners stated that so many fraudulent claims to large areas 
 of land in former Spanish territories were to be filed, that 
 if testimony in opposition to " those false and fraudulent 
 
 33 This town, one hundred and fifty years ago, was the largest town 
 west of the Alleghanies. To-day a single smokehouse is all that re- 
 mains of the old French town, and it is expected that even the smoke- 
 house will have disappeared beneath the waters of the Mississippi 
 River, which has swallowed up the rest of the town. 
 
 34 " American State Papers : Public Lands," Vol. 1 : 189.
 
 312 HISTORY OF THE SUPREME COURT 
 
 claims " were not made, little land would be left to the United 
 States. " The suggestions of the commissioners," Gallatin 
 wrote to Congress at the same time, " on the subject of fraud- 
 ulent and antedated Spanish grants, seem to deserve particular 
 consideration. It is ascertained, by information received 
 through various and authentic channels, that the same frauds 
 are attempted on a much larger scale in Louisiana. . . ." : 
 
 A little more than a month later, on February 29, 1804, 
 President Jefferson sent a message to Congress, enclosing a 
 communication from Amos Stoddard, Captain of the U. S. 
 Corps of Artillerists, at Kaskaskia. Stoddard wrote that 
 approximately 200,000 acres of valuable land, including all 
 of the best mines, had been surveyed to various individuals 
 in the course of a few weeks and that the grants had been 
 antedated in the name of the former Spanish Lieutenant 
 Governor. " It is understood," wrote Stoddard, " that each 
 purchaser gives forty dollars for every one hundred or four 
 hundred acres, and that this sum is divided between three 
 persons, the projectors of the speculation." 38 
 
 In view of these disclosures, comprising a very few of the 
 many made at the precise time when the frauds were initi- 
 ated, the position generally taken later in its decisions by the 
 Supreme Court of the United States, was remarkably sig- 
 nificant. This position was that when an order of survey 
 was made, the lands covered by it were, by that very fact, de- 
 tached from the mass of public lands, and converted into a 
 vested private right. 
 
 Forgery on an Immense Scale. 
 
 A large variety of four species of alleged grants now 
 turned up in Kaskaskia. One kind of grant was founded on 
 alleged ancient grants from various Governments, or alleged 
 land purchases from the Indians. A second were alleged 
 
 35 " American State Papers : Public Lands," Vol. 1 : 189. 
 
 36 Ibid., 193-194. (Doc. No. 99.)
 
 FURTHER COURSE OF COURT UNDER MARSHALL 313 
 
 grants of donations of four hundred acres to each head of a 
 family settling in the country east of the Mississippi River at 
 or after the time of the treaty of 1783 with England. A 
 third sort were grants by courts or military commandants for 
 improving and cultivating land, and a fourth kind were grants 
 for service in the United States militia. 
 
 The extent to which fraud was carried in the case of all of 
 these alleged grants was appalling. " To our astonishment," 
 reported the U. S. Commissioners from Kaskaskia, December 
 I, 1807, to Gallatin, " we find more than seven hundred depo- 
 sitions given there [in Upper Louisiana, now the State of 
 Missouri] to be forgeries; most of these depositions have 
 been given in by persons assuming the names of certain an- 
 cient and respectable settlers in this country ; by calling them 
 forward (for most of them still reside in Upper Louisiana) 
 we have discovered the truth, but a truth most embarrassing 
 to us; we have been obliged to reject nearly forty claims to 
 four hundred acres each, which we had confirmed to one man 
 on this evidence, and caused to be recorded by our clerk as 
 ultimately decided ; our records are everywhere to be altered. 
 Besides, more than two hundred depositions have been given 
 in before this Board by persons who have since acknowledged 
 their falsity ; they found themselves entrapped. . . ." 3T 
 The Board said that it had been imposed upon unavoidably, 
 and that only by a slow and cautious comparison of facts, from 
 time to time, had it learned the truth. 
 
 Official Collusion. 
 
 The ringleaders in these frauds were those notorious land 
 speculators and sharps, John Edgar, J. R. Jones, Robert Reyn- 
 olds, and Robert and William Morrison. Allied with them 
 was a group of powerful politicians. 
 
 In a detailed report, in 1810, the U. S. Commissioners at 
 
 87 Ibid., 590.
 
 314 HISTORY OF THE SUPREME COURT 
 
 Kaskaskia, revealed that Governor St. Clair, of the North- 
 west Territory, had been in collusion with Edgar as early 
 as 1790. In that year St. Clair had lodged with Edgar. St. 
 Clair had confirmed to Edgar an immense number of claims; 
 in one list alone, apart from many other claims, St. Clair had 
 confirmed to Edgar a block of forty-four claims. 38 Claim 
 No. 2208, nominally covering 13,986 acres of land, but really 
 stretched to 30,000 acres, had been confirmed by Governor 
 St. Clair to John Edgar and to the governor's own son, John 
 Murray St. Clair. 39 This claim was predicated upon an al- 
 leged grant by Colonel Wilkins, British Commandant of the 
 Illinois Country. 
 
 " The truth seems to be," reported the Commissioners, " that 
 Edgar, previous to the issuing of the patent (which has never 
 been, as usual, countersigned by the Secretary) employed a 
 certain Daniel McCann, then surveyor under the Governor's 
 appointment (and who from his own letter on our files, we 
 pronounce not to have been more honest than he ought to 
 be), to survey this tract. Knowing, as it seems, the quantity 
 of land meant here to be confirmed, he ran his lines to a cer- 
 tain distance and stopped; Edgar urged him to proceed fur- 
 ther ; he refused ; Edgar then employed a certain Richard 
 Lord, whose name is notorious on our records, to complete 
 the survey; and said McCann was, it seems, afterwards in- 
 duced to certify it." 40 
 
 The St. Clairs allowed no opportunity to escape them. 
 
 Claim No. 2055 a 'o ne comprised ninety donation rights, of 
 400 acres each, to heads of families, or 36,000 acres, con- 
 firmed to Edgar by Governor St. Clair. Claim No. 2209, for 
 a league square, had been patented by Governor St. Clair to 
 John Edgar and St. Clair's son, Arthur St. Clair; the title 
 was supposed to be an ancient French concession, but whether 
 it was ever actually thus made was doubtful. 41 These are a 
 
 38 " American State Papers : Public Lands," Vol. II : 235-237. 
 
 39 Ibid., 204. 40 Ibid. Ibid., 203.
 
 FURTHER COURSE OF COURT UNDER MARSHALL 
 
 few of the many claims, aggregating hundreds of thousands of 
 acres, held by Edgar in collusion with various members of the 
 St. Clair family. 
 
 Professional Perjurers Used. 
 
 These land jobbers had at their disposal a paid band of 
 desperadoes and perjurers. 
 
 In the case of many of Edgar's claims, Augustus Langlois 
 testified as to improvements made in 1784-1785, yet the Com- 
 mission reported that Langlois must have been only eight or 
 ten years old at that time, and lived in a distant part of the 
 country: Langlois perjured himself in twenty different cases. 42 
 John Harris likewise had perjured himself in many successive 
 cases for the benefit of the Edgar syndicate in claims con- 
 firmed by Governors St. Clair and William Henry Harrison. 
 Another noted perjurer, Johnson Amberson, who had sworn 
 falsely in thirty-three cases, was described by the Commission 
 as a " poor, wandering wretch, equally destitute of morality 
 or character," who had died "in a drunken fit." He had 
 been willing " to testify, on moderate terms, for any man 
 who would pay him for it, and before anybody who would 
 take his testimony. . . ." 43 John Cook, a " Dutchman," 
 had committed perjury in fifteen land-claim cases; he had tes- 
 tified to happenings in certain years, when as a matter of fact 
 he had not left Europe at the time. " We further remark," 
 reported the Commission, " that many of these depositions 
 have been written by John Edgar and other claimants of Kas- 
 kaskia, and sent up to said Cook at St. Charles, where they 
 have been signed and attested by him, without the least alter- 
 ation." " 
 
 Of Nicholas Revelle, the Commission reported that although 
 he had not been in America long, " yet he has given a great 
 number of depositions at St. Lours, and at St. Charles, La., 
 
 123. * 3 Ibid. "Ibid., 126.
 
 316 HISTORY OF THE SUPREME COURT 
 
 exclusively in favor of large landholders, commencing as 
 early as 1783-84." 45 Jean B. Montrieulle gave fifty deposi- 
 tions in favor of the principal land speculators; he acknowl- 
 edged perjury in a large number of cases. Joseph Page was 
 thus described : " This man is a Frenchman, and has been 
 a great swearer; we have, perhaps, two hundred of his depo- 
 sitions, generally given in favor of the large land' job- 
 bers. . . ." Page had perjured himself in forty-three 
 cases, and Daniel Thorn in seventeen. 46 Simon Toiton, clerk of 
 the Roman Catholic parish Prairie du Chien, probably moved 
 to confession by the desire for religious absolution, came be- 
 fore the Board and freely admitted having given two hundred 
 perjured depositions in favor of Edgar, Williams and Robert 
 Morrison and others. 47 And so the long list of perjuries ran 
 on at length. 
 
 The Commissioners Escape Assassination. 
 
 " In a considerable portion of the cases," the Commission- 
 ers reported, " where claims have been supported by perjured 
 testimony, we have been presented with forged deeds, con- 
 veying the claims thus supported. They amount to a very 
 great number." The conclusion of the Commissioners' re- 
 port shows the dangers of assassination to which honest 
 officials were exposed. " We close this melancholy picture 
 of human depravity, by rendering our devout acknowledg- 
 ments that, in the awful alternative in which we have been 
 placed, of either admitting perjured testimony in support 
 of the claims, or having it turned against our character and 
 lives, it has, as yet, pleased the Divine Providence which rules 
 
 45 " American State Papers : Public Lands," Vol. II : 203. 
 
 46 Ibid., 123-126. 
 
 47 While Edgar and the Morrisons were thus manufacturing evidence 
 in wholesale, they were petitioning Congress to allow the introduction 
 of slaves into Illinois. They cotild not, they complained, hire a laborer 
 for less than a dollar a day, exclusive of washing, lodging and board- 
 ing. Their petition was rejected by Congress. Ibid., Vol. I: 68.
 
 FURTHER COURSE OF COURT UNDER MARSHALL 317 
 
 over the affairs of men, to preserve us both from legal murder 
 and private assassination." 48 
 
 A graphic picture this report gives of the widespread frauds 
 and the perils faced by sincere investigators. 
 
 Reporting, December 17, 1811, to the House of Representa- 
 tives on this document, Representative Morrow, Chairman of 
 the Committee on Public Lands, stated that the evidence was 
 conclusive that claims for improvement had been confirmed, 
 where there were no improvements ; that alleged ancient 
 grants had been confirmed, although there appeared to be no 
 title made out to the claimant confirmed, which defect, in some 
 instances, had been supplied by forged conveyances; that the 
 Spanish officers from whom the grants were alleged to have 
 emanated not only had no competent authority to make them, 
 but were expressly prohibited from exercising such powers ; 
 and that the military bounty certificates, given to the militia 
 serving in the Indian wars had not only been bought up by a 
 few individuals, but the number turned in far exceeded the 
 number of soldiers entitled to them. 49 Nevertheless, skillful 
 lobbying gradually did its work in successive Congresses com- 
 posed considerably of men interested in land-grabbing, with the 
 result that great numbers of fraudulent land claims were con- 
 firmed. 
 
 Spurious Claims in Louisiana. 
 
 In southern Louisiana, similar frauds were in process. 
 The rings of land grabbers had their extensive ramifications 
 in Congress and in the executive departments at Washington, 
 and without difficulty secured the passage of two laws allow- 
 ing land claimants peculiarly favorable conditions under 
 which to submit claims. It is not possible within the scope 
 of this work to present all of the facts embraced in the long 
 report, made on December 30, 1815, by the Register and the 
 
 **Ibid., 126-127. lbid., Vol. II: 257-258.
 
 HISTORY OF THE SUPREME COURT 
 
 Receiver of the Land Office, at Opelousas. By way of illus- 
 tration, a few facts will be given. 
 
 Claimants swore that they had cultivated plantations and 
 were heads of families when, in fact, they were only boys at 
 the time. Many claims were presented based on claims either 
 counterfeited or fraudulently obtained. Of certain docu- 
 ments of title presented for confirmation, the Commission said 
 that " it is remarkable that although some of them differ as 
 much as six years in their dates, it is evident from the size 
 and texture of the paper that every sheet must have been 
 taken from the same quire. It is, moreover, very evident that 
 attempts have been made to give these papers an old appear- 
 ance." 50 
 
 As to claims founded upon requetes approved and sanc- 
 tioned by Spanish authority, the Commissioners reported that 
 at first they were favorably impressed towards them " but, in 
 the progress of investigation, it appeared to them singularly 
 remarkable that so many claimants holding requetes should 
 have delayed to make their entries until the passage of the 
 last two laws granting indulgence to claimants. . . . The 
 Register and Receiver, therefore, consider it a duty to rec- 
 ommend the adoption of some measures calculated to investi- 
 gate this description of title more scrupulously than they have 
 the power of doing. It should be noticed that no means have 
 been afforded them of obtaining evidence against claims." 
 
 Title papers, the Commissioners further reported, had 
 been kept out of view for the purpose of claiming a larger 
 quantity of land than had been conceded by the Spanish Gov- 
 ernment. The Commission incorporated in its report a letter 
 written by Judge J. S. Johnston in which thje Commission was 
 informed that at Cattahoula, while Judge Johnston was hold- 
 ing court, " a recent and shocking murder there has opened 
 a scene of fraud and perjury of considerable extent, of which 
 it is proper you should be apprised." Judge Johnston said 
 
 60 " American State Papers: Public Lands," Vol. Ill: 250.
 
 FURTHER COURSE OF COURT UNDER MARSHALL 319 
 
 that there existed at that place a regular clique for the com- 
 mission of great land frauds, and that in a dispute over the 
 spoils, a man named Mecom had been killed and the murderer 
 and his accomplice had escaped. 51 
 
 The Indians Defrauded. 
 
 By worrying the Indians with the representation that the 
 United States Government intended to take away their lands, 
 speculators obtained an enormous area from the Appalache 
 tribe on the promise of payment of $3,000. Neither this sum 
 nor any part of it was paid. 
 
 Describing this transaction in detail in a letter, dated Jan- 
 uary 20, 1814, to Levin Wales, Register of the Land Office 
 at Opelousas, Dr. John Sibley, U. S. Agent of Indian Affairs, 
 at Nachitoches, added: 
 
 " I do know that in proving claims before your Board, you 
 have been most egregiously imposed upon, and those who have 
 imposed on you have boasted of their acuteness. Indeed, 
 there has been so much false swearing to obtain your certifi- 
 cates, that it is doubtful whether truth or falsehood would 
 preponderate were an estimate of both made." Sibley added 
 this illuminating comment : " I have determined to attempt 
 to have some persons indicted for the false testimony given 
 before you, but it has been so common, and within the knowl- 
 edge of every grand- juryman, and many of them would not 
 have to search beyond themselves for an instance, that I do 
 not believe any grand jury in this part of the country could 
 be found who would present a person for having proved a 
 claim before your Board, however false it might appear." 52 
 
 Sibley was innocent of the knowledge that Levin Wales 
 himself was interested with the very same men whom Sibley 
 sought to have indicted, in a fraudulent purchase of the same 
 
 " Ibid. 
 
 52 Ibid., 249.
 
 32O HISTORY OF THE SUPREME COURT 
 
 character on Bayou Bceuf. 53 Levin Wales was, in fact, an old 
 hand at participating in land frauds. 54 His denunciations of 
 land frauds in Louisiana, while true enough, doubtless were 
 made either with the view of giving himself an appearance of 
 zeal, or of seeking to get hold of certain land, fraudulently 
 obtained by others, for himself and his associates. 
 
 The Influence of the Frauds on the Supreme Court. 
 
 These details, tedious as they may appear, are vital to a 
 clear understanding of the movements and public life of the 
 period, and of a correct appreciation of subsequent decisions 
 of the Supreme Court of the United States. They were condi- 
 tions soon leading to the time when scarcely any man could 
 get appointed to the Supreme Court unless he was viewed 
 with favor by the newer land interests or their attorneys, con- 
 trolling, as they did, the important committees of Congress, 
 and having the President's ear. 
 
 Some of the foremost political leaders of both political 
 parties, such as Senator Benton, Senator Judah P. Benja- 
 min, Daniel Webster and others were attorneys for great 
 fraudulent land claims, and some of the foremost capitalists 
 were concerned in the claims to vast areas of land in Louisiana 
 and Florida. 
 
 For example, Stephen Girard, a potent factor in the Bank 
 of the United States, and the richest man at one time in the 
 United States, was, together with Edward Livingston, Rob- 
 ert R. Goelet and other capitalists, one of the claimants of 
 the great Bastrop claim, covering twelve leagues square in 
 
 53 It was one of many other such claims confirmed by Congress three 
 years later. (See, Ibid., 276-277.) Miller and Fulton were the princi- 
 pals in both the Red River and the Bayou Boeuf Indian swindles. 
 They claimed that the Appalache tribe owed them $2,600 for merchan- 
 dise. This the Appalache chiefs denied, saying that the debt was owed 
 by the Conchatte tribe, who were occupying the Appalache lands by 
 courtesy. The Bayou Boeuf claim was also founded on alleged debts 
 for merchandise. 
 
 54 See, " American State Papers : Public Lands," Vol. 1 : 150.
 
 FURTHER COURSE OF COURT UNDER MARSHALL 321 
 
 Louisiana, purporting to have been given by the Governor of 
 Louisiana in 1796 or I797- 55 The Boisdore claim was another 
 of the many private grant claims ; alleged to have been given 
 by Governor-General Miro, in 1783, for the purpose of a 
 cow pasture, its claimants contended that it comprised from 
 100,000 to 400,000 acres 60 quite a sizable pasture for cattle 
 to roam in. 
 
 Great Forged Grants in Florida. 
 
 The cession of Florida was accompanied by as glaring 
 frauds as those in Louisiana. Anterior to describing the 
 great case of Mitchell et al. vs. the United States decided by 
 Marshall, in 1835, a relation of these and other facts is neces- 
 sary. 
 
 Negotiations for the cession of Florida to the United States 
 were begun in 1816. Immediately, as had been the case in 
 Louisiana, there was the greatest activity in turning out 
 forged or otherwise fraudulent grants, in anticipation of the 
 transfer of the territory to the United States. General E. 
 K. Call, Assistant United States Attorney General, who later 
 was delegated by the Government to contest alleged private 
 land claims, described this period in his argument in the 
 case of the United States vs. George J. F. Clarke : " The 
 court, will find," he said, " by an examination of the transcript 
 from the archives of East Florida, that there was nearly ten 
 times the quantity of land granted in the year 1817, and from 
 that time until the year 1821, than had been granted pre- 
 viously during the whole period of the occupation of that 
 province by Spain, commencing in the year 1783. . . ." r>7 
 
 Many protracted and nauseating scandals developed from 
 the efforts to have the great number of extensive private land 
 
 55 The history and final, confirmation of this grant by Congress, in 
 1854, is related in the chapters on Chief Justice Taney. 
 
 50 See later. 
 
 57 Peters' Reports, Supreme Court of the United States, Vol. VIII : 
 Appendix, 721.
 
 322 HISTORY OF THE SUPREME COURT 
 
 claims confirmed. Alexander Hamilton, one of the three 
 members of the Board of Land Commissioners for East 
 Florida, resigned in disgust in 1824. He accused Floyd, one 
 of the other members of the Commission, of having been em- 
 ployed as counsel in land cases the titles of which were officially 
 under consideration by the Commission. 58 This charge Floyd 
 denied. 
 
 Hamilton also charged Floyd and Blair, the majority mem- 
 bers, with having recommended fraudulent grants for confirma- 
 tion. He informed Crawford, Secretary of the Treasury, that 
 Floyd and Blair had kept the records in an illegal and improper 
 manner ; that they refused to examine original papers and rec- 
 ords ; that they kept on confirming grants notwithstanding the 
 fact that a fraudulent erasure had been made in an important 
 document; and that Floyd and Blair, in defiance of the clear 
 laws, decided that the Spanish governors had been vested 
 with unlimited powers to grant lands. 59 The Spanish laws, 
 in, fact, limited land grants to fifty acres to each head of a 
 family, and twenty-five acres for each child or slave above 
 the age of sixteen years, and fifteen acres for each child or 
 slave between the ages of eight and sixteen years. 
 
 Spurious Grants and Fraudulent Surveys. 
 
 Hamilton estimated that the fraudulent claims in East Flor- 
 ida alone covered tracts aggregating fully 1,500,000 acres, 
 and that they had actually been surveyed to double that ex- 
 tent. 60 The surveyor responsible for this was the notori- 
 ous George J. F. Clarke, surveyor-general under the Spanish 
 government. Clarke's frauds are numerously described in 
 the Government documents. Large numbers of fraudulent 
 claims were confirmed by the Board, although the original 
 grants had never been produced, nor were they to be found 
 
 58 " American State Papers : Public Lands," Vol. IV : 759. 
 09 Ibid., Vol. Ill : 766. 
 id., 768.
 
 FURTHER COURSE OF COURT UNDER MARSHALL 323 
 
 in the office of the keeper of public archives. Of the validity 
 of these grants, there was no proof whatever except the cer- 
 tificate of Thomas de Aguilar, late Secretary of the Spanish 
 Government in Florida. " It is my opinion," wrote Ham- 
 ilton, " that Congress will not sanction many of the claims 
 recommended for confirmation, but will consider them as 
 fraudulently made in anticipation of the cession of the Flor- 
 idas to the United States." 
 
 Writing to Crawford, Secretary of the Treasury, from St. 
 Augustine, January 24, 1824, Hamilton stated that one of the 
 reasons why he opposed the majority of Commissioners was 
 " because I considered the public interests essentially jeopar- 
 dized by the admission of claims that in my opinion, had been 
 made in fraud of the United States, and in direct violations 
 of the provisions of the royal order of 1815, in virtue of which 
 they were avoivedly made!' 61 
 
 Regarding the claims of John H. Mclntosh, Hamilton 
 wrote, May 24, 1824, to Christopher Rankin, Chairman of 
 the House Committee on Public Lands, that he had tried to 
 give the most liberal construction to the most legitimate powers 
 of the former Governors, and to sustain, if possible, the pre- 
 tensions of the claimants. He added : 
 
 " // the objection to confirm the grants had arisen from 
 mere irregularities, and they had been made within any rea- 
 sonable conformity to the authorities in virtue of which they 
 were aiwvedly issued, I should, unquestionably, have yielded, 
 if not acquiesced, in the decisions of the majority; but when 
 it was evident that the grossest and most extravagant frauds 
 were attempted to be imposed upon the United States in an- 
 ticipation of the cession of the Floridas to its sovereignty, I 
 felt imperiously bound to investigate all those grants involved 
 within this character, and all such as, from their extravagance, 
 would bear the least suspicion of forgery." 2 
 
 i Ibid., Vol. Ill : 770. 
 
 62 Ibid., 867. (Doc. No. 413.) The italics are in the original.
 
 324 HISTORY OF THE SUPREME COURT 
 
 These grave charges were supplemented by particulars. 
 
 Hamilton further said that " there are strong suspicions 
 that when the floodgates of prodigality were opened, the 
 frauds were not confined to a violation of the ordinary au- 
 thority, but extended to the charge of forgery in antedating, 
 etc." The minutes of the Commission, he pointed out, proved 
 that under Spanish power previous to the year 1814, there 
 existed a systematic rule in the distribution of the public 
 lands, and that the grants made inconsistent with those re- 
 strictions had been issued subsequent to the year 1814, with 
 the exception of perhaps five said to have been issued by 
 White, Governor of Florida, from 1796 to 1811. The old 
 Governors, Hamilton urged, possessed no plenary power to 
 dispose of the public lands. White, said Hamilton, bore an 
 excellent reputation for integrity ; therefore the grants said 
 to have been made by him should be investigated carefully. 
 " It has also been proved by the documents herewith annexed," 
 Hamilton continued, " that if Congress were not attempted to 
 be imposed upon, they have at least been kept ignorant of 
 the knowledge of the existence of public papers essentially 
 necessary to a proper understanding of the subject in which 
 the interests of the United States are involved to a value 
 amounting to millions of dollars." 3 
 
 This was Hamilton's version of the issue. On his part, 
 Davis Floyd, writing March 6, 1826, to Richard Rush, Sec- 
 retary of the Treasury, protested against the criticism of the 
 Board. The business of investigating and exposing frauds 
 and forgeries, he wrote, " would not be popular with persons 
 interested ; and that those who were the means of detecting 
 and exposing such nefarious transactions would thereby make 
 themselves enemies, will readily be admitted, and was rea- 
 sonably expected ; that there are cases of a doubtful and sus- 
 picious character, and which have been held back by the 
 claimants in the hope that the business might fall into more 
 
 63 "American State Papers: Public Lands," Vol. Ill: 873.
 
 FURTHER COURSE OF COURT UNDER MARSHALL 325 
 
 favorable hands, is confidently believed; and hence a solicitude 
 for a change was calculated on. . . ." * 
 
 There was one significant fact, however, which none of the 
 Commissioners could deny. In a public advertisement, Wil- 
 liam Reynolds, Keeper of the Public Archives, offered a re- 
 ward of $100 for information leading to the conviction of 
 the person who, on or about November 27, 1823, clandestinely 
 placed in Reynolds' office a document purporting to be a 
 memorial and Spanish concession for a grant of 16,000 acres 
 of land, and at the same time stole another document for a 
 few hundred acres, substituting the one for the other. 05 
 
 Considering what was going on in Congress and in the 
 executive department at that very time, Hamilton must have 
 expressed himself in an ironical sense. 
 
 The policy of the land jobbers was first to get Congress to 
 confirm small claims exciting no public attention. With these 
 cases as precedents, huge claims would later be rushed through 
 in the closing hours of the sessions. These tactics were com- 
 mented upon by Senator Hunter, of the Committee on Public 
 Lands, in his report to March 14, 1820, ". . . . In land 
 cases of small amounts," he said, " it had been habitual, and 
 perhaps excusable, for the Committees to lend a favorable ear 
 to claimants. At the worst, it was a donation of a few acres of 
 an unbounded region ; a handful from a heap. But experience 
 teaches that these decisions in minor cases are soon cited as 
 precedents, and are made to include principles dangerously 
 vague and indefinite, and are clamorously invoked in aid of 
 subsequent cases of suspicious .aspect and enormous magni- 
 tude." 
 
 This, it may be said, was equally true of the Supreme Court 
 of the United States. Doubtless, it was with the knowledge 
 
 64 Ibid., Vol. IV : 758. Both aspects of this controversy are given 
 here. Hamilton's exposures were, however, supported by later Govern- 
 ment investigations which showed that he really underestimated the 
 extent of the frauds. 
 
 es Ibid., Vol. Ill : 765. (Doc, No. 412.)
 
 326 HISTORY OF THE SUPREME COURT 
 
 that land jobbers or their lobbyists overflowed Congress, that 
 Floyd wrote to Rush that when the Board recommended a 
 claim as valid, " the distinguished liberality of Congress " was 
 depended upon to propel it to final confirmation. 
 
 The Enormous Land Grants Claimed. 
 
 The assurance and audacity of the claimants to vast tracts 
 of land in Florida were matchless. Without having the 
 slightest proof, except certificates from the notorious Aguilar, 
 they persistently pushed their claims. 
 
 The heirs of J. M. Arredondo claimed 40,000 acres, as hav- 
 ing been granted by Governor White, in 1811; they could 
 produce no original grant, nor was any paper found in the 
 archives ; they had nothing but a certificate from Aguilar. 
 The same was the case with the heirs of F. M. Arredondo, 
 claiming about 306,000 acres of land, under alleged grants 
 by Governor White, in 1809, and 30,000 acres under alleged 
 grants made in 1817. George J. F. Clarke turned up with 
 claims for 22,000 acres of land with nothing but a certificate 
 from Aguilar to prove his claims. Pedro Miranda presented 
 a claim for 368,640 acres, alleged to have been granted by 
 White in 1810; this was denounced as a forgery. Although 
 he could show no original grants, Michael Lozerns, with noth- 
 ing more than Aguilar's certificate, lay claim to 43,000 acres 
 as having been granted by Governor Coppinger, in 1817. 
 
 These were a few of the grants claimed as having been 
 given on the score of " services to the Spanish Government." 
 Only two claims on the whole list were backed by the produc- 
 tion of the original grants. 66 
 
 Some sixty-five thousand acres (one of the claims being 
 for 50,000 acres) were claimed as having been granted by 
 White for cultivation and improvement, yet there was no 
 
 66 See, Attorney-General Call's exhaustive report, " American State 
 Papers : Public Lands," Vol. VIII : 250. (Doc. No. 1348.)
 
 FURTHER COURSE OF COURT UNDER MARSHALL 327 
 
 proof of either habitation or cultivation. 67 Claims were put 
 forward for an aggregate of 312,000 acres alleged to have 
 been granted in return for the building of sawmills, " yet the 
 archives of the country furnished no precedent for the con- 
 firmation of one of them." Although these mill grants (if 
 genuine), Call reported further, conveyed only the right to 
 build sawmills on some stream and use the pine trees on 
 the adjacent land five miles square, yet " most of these grants 
 have been surveyed in four or five different tracts, many of 
 them more than one hundred miles distant from each other, 
 covering the best land to be found, instead of the pine forests 
 designated in the grant. . . ." 68 
 
 A Commission, appointed by Crawford, in 1824, to inves- 
 tigate land titles in West Florida, reported that the records 
 had been removed from the country in violation of the sol- 
 emn stipulation of the treaty; that, among other claims, the 
 papers in the claim of Fernando Yerra, for 25,600 arpents 
 of land 69 were forged, as also in the claim of Magarita Go- 
 quet for 10,000 arpents, and in Francisca Zurima's claim to 
 5,670 arpents. Giving their specific reasons for believing the 
 papers to be forged, the Commission observed : " It is in 
 grants of the greatest magnitude, and whose titles are made 
 out with unusual exactness, that apprehensions of fraud are 
 to be most seriously entertained. The poor and limited claim- 
 ant is very rarely found guilty of this crime. . . ." 70 
 
 The " Innocent Purchaser." 
 
 In the prosecution of many of these claims for confirma- 
 tion, a noticeable feature remarked was the suspiciously large 
 number of cases in which the claims had been transferred three 
 
 67 Ibid. 
 
 68 Ibid., 253. 
 
 69 The common arpent contained 40,000 feet, approximately the same 
 a* an English acre. 
 
 J0 " American State Papers: Public Lands," Vol. IV: 158.
 
 328 HISTORY OF THE SUPREME COURT 
 
 or four times from one holder to another, the conveyances 
 passing within a brief period. 
 
 Of these assignments, there was a multitude throughout 
 the Louisiana Purchase and in Florida. In his extended and 
 searching analysis of the private land claims 71 Judge Peck, 
 of the United States District Court at St. Louis, wrote that 
 these assignments had been prohibited by the Spanish law. 
 
 " The assignments," he said, " were forbidden ; they were 
 a violation of the intention of the concession. Their fre- 
 quency at the close of the Spanish government, furnished evi- 
 dences of fraud; so many of them being made to the same 
 individuals, is strong evidence of fraud. The same assignees 
 having also large concessions to themselves of which they had 
 not taken possession, and which in many instances appear to 
 have been obtained, with the ostensible view of a possession 
 to be taken at a future day, or a distant or uncertain period, 
 is evidence of fraud. No specific lands being applied for, is 
 evidence of fraud. The concessions with the right to locate 
 parts of the concessions at various places, etc., is evidence of 
 fraud. When we look back to a period of the Spanish gov- 
 ernment prior to the period to which grants were antedated, no 
 such practice obtains." 
 
 The reason impelling those assignments was palpable in the 
 Fletcher vs. Peck case. New England capitalists had suc- 
 cessfully pleaded before the Supreme Court that in buying 
 the great Yazoo claim, they had done so in innocence of the 
 fraud and bribery by which the act had been passed. This 
 " innocent purchaser " plea could now be invoked in behalf 
 of the Florida and other land frauds. 72 
 
 71 Doc. No. 1538, "American State Papers: Public Lands," Vol. VIII. 
 
 72 To plead justification under the "innocent purchaser" guise was a 
 common accompaniment of land and other frauds, and was artfully 
 arranged. Thus, Colonel Preston of the Land Office at Little Rock, 
 Arkansas, in acquainting Graham, Commissioner of the General Land 
 Office, with further facts as to the enormous frauds and impositions 
 committed in Arkansas, wrote, on October 10, 1829: ". . , As to 
 the fact that many of these claims have fallen into the hands of inno-
 
 FURTHER COURSE OF COURT UNDER MARSHALL 329 
 
 Another suspicious feature of these claims was the defense, 
 when claimants were asked why they had not built mills and 
 made settlements, that Indian hostilities had prevented them. 
 This, as we have seen, was an antique subterfuge ; it had 
 been pleaded in the case of the Loyal Company, in Virginia, 
 and with success in the argument in the Supreme Court of the 
 United States to validate the Holland Company's title. Those 
 Supreme Court decisions had pointed the sure way to get 
 judicial confirmations of the most flagrant and most exten- 
 sive thefts of land, either from Congress or from the Supreme 
 Court itself. 
 
 Act after act was passed by Congress either directly open- 
 ing the way for premeditated frauds, or allowing measures 
 of indulgence for land claims. 
 
 In 1815 an innocent-appearing law, called the " New Madrid 
 Act " had been enacted providing that any person who owned 
 land in the country, which land had been materially injured 
 by earthquakes, was authorized to locate a like quantity else- 
 where in Missouri and Arkansas. " I will venture to say," 
 reported, in 1823, Thomas Sloo, Jr., Government agent com- 
 missioned to examine the land offices in that territory, " that 
 the New Madrid law, as it is termed, had given rise to more 
 frauds and more downright villainy than any law ever passed 
 by the Congress of the United States. . . ." In many 
 instances, Sloo wrote, fraudulent relinquishments had been 
 made, and certificates obtained, by persons who had not the 
 shadow of a claim to the land surrendered. His report went 
 on to detail numerous other great frauds. 73 
 
 cent purchasers, it is worthy of serious consideration, for the greatest 
 efforts have been made to distribute them ; but I have no doubt where 
 one is in the hands of an individual entirely deceived, three are in 
 possession of persons who have sufficient reasons to be on their guard. 
 . . ." " American State Papers : Public Lands," Vol. VI : 7. 
 
 73 Ibid., Vol. IV: 47. Report to George Graham, Commissioner of 
 the General Land Office.
 
 330 HISTORY OF THE SUPREME COURT 
 
 John McLean Goes on the Supreme Court. 
 
 One of the principal land jobbers in Congress from 1823 to 
 1829 was William McLean, a representative from Cincinnati. 
 His brother, John, was in Congress from 1812 to 1815, and 
 was Commissioner of the General Land Office, under Mon- 
 roe's administration. 
 
 Significantly, John McLean had studied law at Cincinnati 
 under Arthur St. Clair, son of General St. Clair; of the great 
 land frauds committed both under and by the St. Clairs we 
 have already given an adequate description. Also (although 
 it is an anticipatory fact), it may be added here that three 
 years after the death of his first wife, John McLean, while a 
 Supreme Court Justice, married in 1843 Sarah Bella Garrard, 
 daughter of that same Israel Ludlow who, as Government 
 surveyor, had colluded with Symmes and Dayton in appro- 
 priating the site of Cincinnati before they had a patent, and 
 in other land frauds. Ludlow, of course, left a large estate. 
 As for William McLean,, he was the most persistent promoter 
 of the various bills by which several million acres of land 
 were given as a donation to Ohio canal companies ; he was par- 
 ticularly instrumental in securing the passage of an act dona- 
 ting a Government land subsidy of 500,000 acres for the ex- 
 tension of the Ohio canal from Cincinnati to Cleveland. 
 
 " For many years," virtuously reported a select committee 
 of the House, on February 25, 1829, " the public lands were 
 viewed as the great resource of the nation. Its credit was 
 mainly based on this property which was pledged for the pay- 
 ment of the public debts. . . . Within a few years, how- 
 ever, a greater laxity in legislation prevailed. Claims rejected 
 at the Land Office have been readily allozved by Congress. 
 . . . and during the session of 1827-1828, Congress actu- 
 ally gave away, to States and individuals, not less than two 
 millions, three hundred thousand acres of choice, lands, com- 
 prising a surface equal to that of two of the States, Delaware
 
 FURTHER COURSE OF COURT UNDER MARSHALL 331 
 
 and Rhode Island, and worth in the market at least three mil- 
 lions of dollars." The committee expressed the hope that its 
 report would " effectually check in the future the giving away 
 of this most valuable national property." 74 
 
 In 1830, John McLean was appointed an Associate Judge 
 of the United States to succeed Justice Trimble. In the same 
 year President Jackson also appointed Henry Baldwin an 
 Associate Justice to succeed Justice Bushrod Washington. 
 Baldwin had been a member of Congress from 1817 to 1822, 
 and from that year to 1830 had practiced law at Pittsburg, 
 representing landholders. 
 
 . Congress Confirms Numerous Claims. 
 
 During this period, Congress had been stealthily confirming 
 many private land claims, alleged to be derived from old 
 grants, mainly Spanish and French. Nearly all of these 
 claims had been rejected by the various Boards of Land 
 Commissioners, and for twenty and thirty years had been 
 pushed by industrious promoters, attorneys and lobbyists. 
 
 The administrations of Monroe and John Quincy Adams 
 were found to be the auspicious times to get confirmations 
 from Congress. From the organization of the Government to 
 1828, but chiefly in the Monroe and Adams' administrations, 
 Congress had allowed 7,650,328 acres in settlement of private 
 land claims; of this area 581,884 acres in Mississippi, 966,087 
 acres in Missouri, and 5,000,000 acres in Louisiana were set 
 apart in satisfaction of private land claims. 75 These numer- 
 ous claims, while making a formidable aggregate, were not 
 to be compared to the few claims of immense extent vali- 
 dated a little later by decisions of the Supreme Court of the 
 United States. 
 
 A hint of the methods used in Congress may be seen in a 
 
 74 " American State Papers : Public Lands," Vol. V : 796. 
 1 bid., Vol. VI, Doc. No. 747.
 
 332 HISTORY OF THE SUPREME COURT 
 
 memorial of Missouri inhabitants to Congress, in 1828, pro- 
 testing against the laws being clandestinely enacted for the 
 benefit of claimants. The prevailing methods, the petitions 
 complained, gave the claimants opportunity " through their 
 watchful and persevering agent at Washington to pursue the 
 same course that the heirs of Frangois Vallee did last year, 
 and obtain, if possible, a confirmation of their claims at some 
 unguarded time which might happen toward the end of the 
 session." 76 
 
 The Board Rejects the Arredondo Claim. 
 
 But the partisan factions in Congress, with their eyes on 
 political advantage, dared not venture to excite public opinion 
 by confirming certain huge Louisiana and Florida private 
 land claims. Upon these audacious claims public attention 
 had long been focused ; if they were confirmed that act of itself 
 would entail the confirmation of any other claims, the issues 
 involved in which were the same ; as a measure of political 
 tactics, it was then considered extremely unwise to confirm 
 particular claims that so many Government Boards and of- 
 ficials had denounced as spurious. All that Congress would 
 undertake was to use indirection in behalf of the spurious 
 claims; in allowing the claimants to bring suit, it thus gave 
 their claims a partial recognition. It was to the Supreme 
 Court that the claimants eagerly looked for final confirmation, 
 and every exertion was bent in that direction. 
 
 The composition of the Board of Land Commissioners for 
 East Florida had been somewhat changed. In its final re- 
 port to Congress, in 1828, this Board, while recommending 
 some claims for confirmation, rejected others of a proved 
 fraudulent nature. It rejected Francisca Aguilar's claim to 
 30,000 acres. The claim of J. M. Arredondo to 50,000 acres 
 and that of F. M. Arredondo to 250,000 acres, were thrown 
 
 70 Ibid., 509-510. The Vallee Claim was the Mine la Motte tract of 
 27,000 arpents.
 
 FURTHER COURSE OF COURT UNDER MARSHALL 333 
 
 out as self-evidently spurious. Likewise was the claim of 
 Peter Miranda to 368,640 acres, bordering on Tampa Bay. 
 
 The claimants could not produce a single original deed for 
 any of these and other grants. Their entire case rested upon 
 copies of copies of originals; these copies of copies were 
 certified by Thomas de Aguilar, Secretary of the last Spanish 
 Governor in Florida. The most diligent search on the part 
 of the United States Government officials failed to reveal any 
 originals, or any traces of them, in the archives. 
 
 In passing upon the Miranda claim the Board reported that 
 it did not believe that Governor White, when living, ever made 
 a grant of twenty thousand acres to any individual, " what- 
 ever he may have done since dead." The Board went on 
 to say of the activities of Thomas de Aguilar, " It was over 
 this last office that Thomas de Aguilar presided ; it was from 
 this office that so many monstrous grants have emanated ; it 
 is from this office that the originals of Thomas de Aguilar's 
 certificates of grants are lost, and it is in this office that the 
 original of the grant before us is to be found." 
 
 But who were the real claimants to these vast grants? 
 They were not Spaniards at all; they were Northern capital- 
 ists and politicians such as General Jasper Ward who claimed 
 128,000 acres of the grant said to have been given to F. M 
 Arredondo & Son, and Henry Eckford, a rich New York 
 shipbuilder and politician, who set up a claim to 46,080 acres 
 of the alleged Miranda grant. As for the claims in West 
 Florida, alleged to be derived from the former British gov- 
 ernment, they totalled more than 1,000,000 acres; all, re- 
 ported Joseph M. White to President John Quincy Adams, 
 on February n, 1829, "appear to be entirely unfounded in 
 law or equity." 78 
 
 Of the egregious frauds in the Louisiana Purchase and in 
 
 77 " American State Papers : Public Lands," Vol. VI : 97. 
 
 78 Ibid., Vol. V : 633-634. White was assistant counsel to the Govern- 
 ment on Spanish and French ordinances affecting land titles in Florida 
 and other territories.
 
 334 HISTORY OF THE SUPREME COURT 
 
 Florida we have given here the merest suggestive outline of 
 the vast mass of facts embodied in the public archives; the 
 recital of the whole would require several volumes in them- 
 selves. Altogether, the private land claims at this time, 
 reached, it was estimated, about 12,000,000 acres. Unable 
 to get their claims recommended by the Land Office, or 
 definitely validated by Congress, corrupt as both were, 79 the 
 promoters of the rejected fraudulent claims now placed their 
 final hopes in the Supreme Court of the United States. 
 
 Marshall Validates the Arredondo Claim. 
 
 The Government vigorously contested the F. M. Arredondo 
 claim. Deducting certain tracts apparently confirmed to the 
 Arredondos, this disputed claim covered a.i area of 289,645 
 acres. It lay largely in the county of Alachua, and its east- 
 ern boundaries comprised almost the whole of the northeastern 
 coast of Florida, including Jacksonville and other cities; its 
 center was the site of the present city of Gainesville. 
 
 The Superior Court for the Eastern District of Florida, act- 
 ing upon precedents created by the Supreme Court of the 
 United States, confirmed the claim. The Government then 
 carried the case on appeal to the Supreme Court at Washing- 
 ton. 
 
 The Government charged fraud ; it argued that the In- 
 tendant of Cuba had no authority to make such grants ; that 
 the time the grant was alleged to have been made, in 1817, the 
 
 79 Many of the members of Congress, as has been noted, were on 
 the payrolls of the Bank of the United States, and were otherwise 
 profiting from corrupt legislation. Not a few of the members of Con- 
 gress became millionaires. As for the Land Office, its officials were 
 frequently under fire of charges of corruption. Charges of fraud and 
 corruption against Graham, Commissioner of the General Land Office, 
 and Surveyor George Davis, were brought by Deputy-Surveyor Wilson, 
 in 1827, but were dismissed by the House Committee on Public Lands. 
 (See, "American State Papers: Public Lands," Vol. IV: 922-957.) 
 Graham and Davis retorted by charging that corrupt individuals were 
 behind Wilson.
 
 FURTHER COURSE OF COURT UNDER MARSHALL 335 
 
 country was under the jurisdiction of Great Britain; that, 
 even if the grant were genuine, the Arredondos had failed to 
 perform that condition of the grant requiring them to es- 
 tablish two hundred Spanish families within three years from 
 the date of the grant. Finally, the Arredondos (or rather, 
 the American capitalists holding the claim) could produce 
 no original grant; all that they had to show was an alleged 
 copy of a copy of the original, which copy was certified by 
 Aguilar. 
 
 Chief Justice Marshall decided in January, 1832, that the 
 claim was valid. 
 
 Just as in the Yazoo case he had ignored the facts of fraud, 
 notwithstanding that the Grand Jury published testimony con- 
 taining the confessions of legislators, so here he also de- 
 cided that there was an absence of proof. Don Onis, who 
 had been commissioned by the King of Spain, in 1816, to 
 negotiate with the American Government, had admitted that 
 the various large claims " were fraudulent and a disgrace to 
 his country." 80 Successive Boards of Land Claim Commis- 
 sioners, conducting their examinations on the spot, and fa- 
 miliar with the intimate circumstances, had rejected the claim 
 as fraudulent. The General Land Office had refused to pass 
 it, and so had Congress. The extensive corruption of George 
 J. F. Clarke and Aguilar was established and conclusive ; many 
 Government officials had detailed the facts, and these facts 
 had neither been disproved nor had their accuracy been chal- 
 lenged. 
 
 Chief Justice Marshall and his concurring coadjutors chose 
 not to see the fraud. Had they even countenanced it, they 
 could hardly have reconciled with their validation the vaunted 
 principle of law that fraud vitiated every transaction. Their 
 only recourse was to evade and ignore the actual facts. All 
 that they preferred to see, as in the Yazoo, Holland Company 
 
 80 See, Assistant Attorney-General Call's statement, VIII Peters : Ap- 
 pendix, 721.
 
 336 HISTORY OF THE SUPREME COURT 
 
 and Fairfax cases, was the official, formal act; there was the 
 official record that the land had been surveyed, and there was 
 Aguilar's certificate that the copy of a copy of the grant was 
 a copy of the original. Aguilar was a recognized Spanish 
 official, therefore according to Marshall's logic his cer- 
 tificate was an official, legitimate attestation. The moment 
 the grant was made, Marshall held, a vested right was con- 
 ferred. 
 
 Those who in the light of the facts herein set forth, desire 
 to see to what lengths judicial sophistry and disingenuous- 
 ness may be stretched, are respectfully advised to read Mar- 
 shall's decision in full. 81 
 
 The only dissenting opinion was that of Justice Thompson. 
 The evidence, Thompson protested, showed that in February, 
 1822, one year after the ratification of the treaty by the United 
 States, two negroes were the only persons who could be found 
 on the whole of the 289,645 acres. 
 
 The decision in this case opened the immediate way, then 
 and later, for the validation by the Supreme Court of a very 
 considerable number of claims equally fraudulent, and all of 
 which had been strongly contested by the Government. 82 
 
 The Astor Decision. 
 
 This decision, coming during the period when the Supreme 
 Court had rendered a decision in another case causing much 
 public agitation the Astor case made the Supreme Court 
 a target for much denunciation. 
 
 During the Revolution, a tract comprising 51,012 acres in 
 Putnam County, New York, held by Roger Morris and his 
 wife, Mary, had been confiscated by the State on the ground 
 
 81 See, VI Peters, 689-759. This decision served as a great prece- 
 dent ; it was cited as authority in no less than several hundred sub- 
 sequent cases. 
 
 82 See, U. S. vs. Segui ; U. S. vs. Seton ; U. S. vs. Sibbald, etc., etc., 
 X Peters, 303-324.
 
 FURTHER COURSE OF COURT UNDER MARSHALL 337 
 
 of their being Tories. This land was part of the estate of 
 Adolphus Phillips, the son of Frederick Phillips, whose ca- 
 reer as a promoter of sea piracies and as a bribe-giver, has 
 been narrated in Chapter I. Mary Morris was a descendant 
 of Adolphus Phillips. After confiscating the land, the State 
 sold it to various farmers; by 1809, seven hundred families 
 were settled on the property which they had greatly improved. 
 
 In that year John Jacob Astor learned that there were 
 grounds in law by which the farmers could be ousted from 
 possession. These grounds, as Astor was informed, were that 
 inasmuch as the Morrises had held a life lease only, the 
 State had no power to confiscate a life lease. The property, 
 Astor was told, was really owned by the Morris children, to 
 whom, by the original provisions, .it was to revert after their 
 parents' lease had been extinguished. Astor hunted up the 
 heirs, and by dissimulation, succeeded in buying up their claim 
 on payment of $100,000. Astor 's lawyers notified the occu- 
 pying farmers that not they but Astor owned the land with all 
 its valuable improvements. 
 
 A great public uproar resulted, and the Legislature refused 
 to recognize Astor's claim. But Astor pressed it in the courts, 
 and it was finally validated by the Supreme Court of the 
 United States, Justice Story writing the court's opinion. The 
 State of New York was compelled in 1827 to give Astor 
 $500,000 in five per cent, stock, specially issued, for the sur- 
 render of his claim. 83 
 
 An Unaccountable Delay. 
 
 Having gone so far in the Arredondo decision, the Supreme 
 Court of the United States, blissfully oblivious to criticism, 
 
 83 Case of Carver vs. Jackson ex. dem. Astor et al., V Peters, 80. 
 Also Journal of the (N. Y.) Senate, 1815: 216 Journal of the (N. 
 Y.) Assembly, 1818: 261, and Ibid., 1819. See, also, "A Statement and 
 Exposition of the Title of John Jacob Astor to the Lands Purchased 
 by him from the surviving children of Roger Morris and Mary, his 
 AVife." New York, 1827.
 
 338 HISTORY OF THE SUPREME COURT 
 
 now proceeded to confirm a large batch of land claims. But 
 in the case of one claim that of Soulard's Heirs to 10,000 
 arpents of land, about seventy miles north of St. Louis a 
 remarkable circumstance developed. Although this case came 
 up, on appeal, in 1830, after the rejection of the claim by 
 the United States District Court at St. Louis, Marshall held 
 it under advisement, and no confirming decision was rendered 
 until nearly six years later. 
 
 Why this prolonged delay? Was it because of the great 
 sensation that the revelations of frauds in Arkansas and Mis- 
 souri were making in the public mind? 
 
 After both the Board of Land Commissioners and the Su- 
 perior Court had confirmed a hundred and thirty-one claims, 
 represented by John J. Bowie, the Government came across 
 evidence proving that Bowie had either himself committed, or 
 procured, the forgery of the name of the former Spanish 
 Governor Miro, and that he had suborned the perjuries by 
 which they had been supported. The Superior Court in 1831 
 found itself compelled to reverse and annul its own judg- 
 ment. So strong was the evidence, that the Supreme Court 
 of the United States could not do otherwise than sustain the 
 Government. Notwithstanding, the Bowie claimants lobbied 
 in Congress for a confirmation, but failed to get it. 84 
 
 In the District Court at St. Louis Judge Peck had re- 
 peatedly exposed and denounced Soulard's frauds. Soulard 
 had been the Surveyor-General of Upper Louisiana under the 
 former Government; in the case of Joseph Wherry et al. vs. 
 the U. S., Judge Peck said that the circumstances " raise 
 the presumption of intentional fraud," implicating Soulard " in 
 whose handwriting the concession proved to be." Soulard 
 
 84 Hampshire's Reports (U. S. Circuit and District Courts) [1820- 
 1856], pp. 123, 127, etc. Also 27 Federal Cases, Case No. 16,2163, in 
 which Judge Johnson describes the great corruption, forgeries and 
 perjuries. Also the Supreme Court's decision in VI Peters. 222. Also, 
 "American State Papers: Public Lands," Vol. VII: 666-669. (Report 
 of House Committee on Public Lands, Feb. 24, 1835.)
 
 FURTHER COURSE OF COURT UNDER MARSHALL 33Q 
 
 had admitted in a letter that his most intimate friends were 
 interested in his surveys, and when called as a witness in St. 
 Louis he had refused to answer all questions as to the antedat- 
 ing of concessions. 
 
 Judge Peck declared, with exhibits, that a large number of 
 claims had been antedated, and he detailed how " the fifty-one 
 concessions of eight hundred arpents each, surveyed by the 
 assignees of those in whose favor the concessions were made, 
 are attended with many evidences of fraud." Judge Peck sar- 
 castically commented upon the fact that twenty-four miles of 
 surveys were alleged to have been made on a single day. Qn 
 the same ground that the claims were fraudulent in their 
 inception Judge Peck threw out the claims of Delassus, 
 of August Choteau, and many other claims. 85 
 
 But, in January, 1835, Chief Justice Marshall reversed the 
 lower court and confirmed a number of these claims. 
 
 The Delassus claim for a league square in Missouri, and 
 the Choteau claim to a valuable stretch of 1,281 arpents, near 
 the town of St. Louis, were validated. Another Choteau claim 
 for a league square, which claim had been rejected by the 
 
 85 " American State Papers: Public Lands," Vol. VI: 226-247. (Doc. 
 No. 874.) Delassus had been the successor of Trudeau, as Governor, 
 at St. Louis, six years before the cession to the United States. De- 
 scribing the antedated grants made by Trudeau and Delassus, Judge 
 Peck later wrote : 
 
 " While, as I have said, Delassus made his antedated concessions 
 bear date for the most part in 1799 and 1800, for the purpose of cover- 
 ing up matters handsomely, and preserving fair appearances, that no 
 excess should appear to have been committed by him near the close of 
 his official career ; Trudeau, his predecessor, in the antedated conces- 
 sions made by him, after he had left the government, and, of course, 
 not until after the treaty of cession by Spain to France was known, 
 was compelled for different reasons, to make them bear date toward 
 the close of the period of his government, and within about the last 
 three years of it ; so that it will be perceived by looking at the con- 
 cessions of the Spanish government, issued at the post of St. Louis, 
 nine-tenths, possibly near nineteen-twentieths, of the quantity of land 
 conceded during the thirty-three years of the Spanish government was 
 conceded in a little more than four years; conceded neither at the 
 first, nor at the last of the government, but in the years 1797, 1798, 1799, 
 and 1800, and a few of the antedated claims in 1796." " American 
 State Papers: Public Lands," Vol. VIII: 837.
 
 34O HISTORY OF THE SUPREME COURT 
 
 Board of Land Commissioners as " unsupported by actual in- 
 habitation and cultivation," and which had been declared in- 
 valid by the U. S. District Court, at St. Louis, was confirmed 
 by Marshall. Who the actual owners of these and other claims 
 were, the records do not state. With these and prior deci- 
 sions as precedents, the Board of Land Commissioners lost no 
 time in confirming a large number of similar claims. 
 
 The Mitchell Claim of 1,200,000 Acres. 
 
 The validation of the enormous Mitchell claim, how- 
 ever, was the case conspicuously commanding public atten- 
 tion. 
 
 The real promoters of this claim were George Griswold, a 
 rich New York shipper, 80 and others, combined with other 
 capitalists and with some of the most noted politicians in the 
 country. They later formed the Appalachicola Land Com- 
 pany. Griswold was subsequently implicated in vast land 
 frauds in Texas. The Mitchell claim covered the immense 
 area of exactly 1,200,060 acres beginning a little west of 
 Tallahassee, Florida ; it included what are now the counties 
 of Franklin, Wakulla and Liberty, and parts of other counties. 
 The persons ostensibly bringing the suit were Colin and Rob- 
 ert Mitchell, Benjamin Marshall and others, as the heirs and 
 
 80 Griswold had many ships plying in the East India and China 
 trade. He was one of the promoters and original directors of the 
 Bank of America at a time when, in 1812, a legislative investigation 
 revealed (as we have before noted) that its charter was obtained by 
 Bribery. The favors allowed by the government to the shippers in the 
 East India and China trade, enabling them to reap enormous profits 
 and use government money as their private capital, aroused the opposi- 
 tion of other shippers. " Why," wrote the Mercantile Society, of New 
 York, in 1821, to the House Committee on Manufactures, " should the 
 merchant engaged in the East India trade, who is the overgrown capi- 
 talist, have the extended credit of twelve months in his duties, the 
 amount of which on one cargo furnishes nearly a sufficient capital for 
 completing another voyage, before his bonds are payable?" Reports 
 of Committees, Second Session, Sixteenth Congress, 1820-21, Vol. I, 
 Doc. No. 24.
 
 FURTHER COURSE OF COURT UNDER MARSHALL 34! 
 
 representatives of John McNish, to whom the claim had been 
 conveyed by John Forbes and Company. 87 This firm had suc- 
 ceeded that of Panton, Leslie and Company. 
 
 Panton had been a Tory during the Revolution, and had 
 fled to Florida. There he had gone into the varied business 
 of importing and selling negroes from Africa, and of trading 
 with the Indian tribes. This trade was the usual one of de- 
 bauching the Indians and then grossly swindling them by 
 charging them extortionate prices for merchandise in exchange 
 for their furs. It was a trade that elsewhere for many years 
 yielded John Jacob Astor $500,000 a year, and enabled him 
 to corrupt public officials for immunity; on one occasion (in 
 1817) Lewis Cass, a leading Democratic politician, Secretary 
 of War under Jackson, and later Democratic candidate for 
 the Presidency, received $35,000 from Astor for services not 
 stated. 88 
 
 The firm of Panton, Leslie and Company had pretended 
 claims for $86,000 against the Seminole Indians, and other 
 claims for a large amount against the Choctaws and Chicka- 
 saws. After the year 1804 the firm became John Forbes and 
 Company. The Spanish Governor granted to this firm the 
 exclusive privileges of importing goods free of duty, and un- 
 der certain specified conditions, of trading with the Indians ; 
 the court records speak of the great influence the firm had 
 with the Spanish Governor. The firm presented two claims 
 against the Indian tribes, one for debt, the other for alleged 
 depredations on their stores. The result was that John Forbes 
 and Company turned up with two deeds, conveying a total of 
 1,200,000 acres, near Tallahassee. These deeds, they claimed, 
 were given by the Seminole and Lower Creek Indians, in two 
 
 87 IX Peters, 711. 
 
 88 The full details of this debauching of the Indians are given in 
 the " History of the Great American Fortunes," Vols. I and III. The 
 Secretary of War, at that time, had supreme jurisdiction over the 
 Indian tribes. The records frequently tell of claims trumped up against 
 the Indians.
 
 342 HISTORY OF THE SUPREME COURT 
 
 cessions, and were (so they alleged) confirmed by the Spanish 
 Governor, in i8o6. 89 
 
 This pretended transaction, it may be said, was one of the 
 causes of the Seminole uprising, causing much loss of life. 
 No history has yet mentioned the underlying causes of the 
 Seminole War, which, in reality, sprang from such enormities 
 as this. 
 
 No Original Deed Produced. 
 
 John Forbes and Company sold their claim to the 1,200,000 
 acres to various American capitalists. The Land Office long 
 refused to recognize the claim, or to have anything to do 
 with it. But after years of lobbying, the promoters succeeded, 
 in 1828, in getting an act passed by Congress authorizing the 
 claimants to institute proceedings in the courts to try the valid- 
 ity of their title. 
 
 As in the Arredondo case, the claimants in this case could 
 not produce original papers; they had nothing more than 
 copies of copies, alleged to have been certified by Spanish offi- 
 cials. The Government officials ransacked the Spanish ar- 
 chives, but not a single trace of any original document could 
 be discovered. 
 
 The Superior Court, for middle Florida, indignantly re- 
 jected the claim as fraudulent, pointing out (among other 
 things) that the water mark of the paper purporting to be 
 that used by the Spanish Governor was extremely sus- 
 picious. That the judge would ever detect this, had not been 
 anticipated by the claimants. 
 
 The claimants took the case to the Supreme Court of the 
 United States. There, Daniel Webster was one of their at- 
 torneys. The Government contended that not the Indians, 
 but the Spanish Government, should have been held to account 
 for indemnity for losses sustained by the firm while trading 
 
 89 "American State Papers: Public Lands," Vol. V: 329-341. (Doc. 
 No. 599-)
 
 FURTHER COURSE OF COURT UNDER MARSHALL 343 
 
 under a special and exclusive license from Spain; that the 
 Government had no knowledge of the existence of the firm, 
 or its claims on Spain, or the title on which the suit was 
 founded, and that the deeds were executed by Indians nearly 
 all of whom were residing in the territorial limits of the 
 United States. 
 
 The Government further set forth that the cessions were 
 not the genuine acts of the Seminole nation ; that no such 
 firm as Panton, Leslie and Company existed at the time of 
 the execution of the deeds both Panton and Leslie were 
 then dead and that the Spanish Governor Folch had no 
 power to ratify the cessions, inasmuch as most of the cession 
 was in another province of Florida, and entirely out of his 
 jurisdiction. The genuineness of the deed purporting to con- 
 vey the grant was also sharply questioned. 
 
 The Supreme Court Validates the Claim. 
 
 Nevertheless, the Supreme Court of the United States, in 
 January, 1835, reversed the lower court, and validated the 
 whole transaction. 
 
 Of the long-continued and wides'pread defrauding of the 
 Indian tribes, the Supreme Court well knew ; scandals were 
 continually coming into the public records and prints. 
 
 Only a few years before, in 1825, a great scandal had been 
 caused by the bribery of Creek chiefs, in Georgia, by Gov- 
 ernment agents to influence them to cede several million acres 
 of their domain in Alabama, and all of their land in Geor- 
 gia. 90 But assuming that the claims of Panton, Leslie and 
 Company against the Indians were 'legitimate, and accepting 
 the assertion that the Indians had actually bartered away 
 
 00 Senator Benton, who was Chairman of the Senate Committee on 
 Indian Affairs, at the time, described this corruption, and named the 
 sums, in his " Thirty Years In The Senate," pages 58-60. So enraged 
 were the Creeks at this disposing of their land, that they killed Mc- 
 Intosh and another chief who had signed the treaty.
 
 344 HISTORY OF THE SUPREME COURT 
 
 1,200,000 acres of their possessions, the Supreme Court held 
 that the cessions were valid, having been made at Indian trea- 
 ties, in the presence of Spanish officers, and with their full 
 approbation. 
 
 But what of the paper with the peculiar water mark? Jus- 
 tice Baldwin, who wrote the court's opinion, skipped around 
 that ticklish point by dismissing it as " a subject into which 
 we do not feel at liberty to inquire." Justice Baldwin ad- 
 mitted that the court below had acted correctly in refusing 
 to grant the claimants a commission to take testimony to 
 explain and account for the suspicious water mark, or to per- 
 mit the reading of ex parte evidence offered to explain it. 
 This refusal, Justice Baldwin acknowledged, was reasonable, 
 "because in an appellate court no new evidence could be 
 taken or received without violating the best-established rules 
 of evidence and law." Justice Baldwin went on to say that 
 the Supreme Court would not say what course it would have 
 taken had the title depended upon the date of the paper de- 
 nounced by the court below ; " as the case is," he concluded, 
 " it is only one of numerous undisputed documents tending 
 to establish the grant, tlje validity of which is but little, if 
 it could be in any degree, affected by the date of the per- 
 mission." 91 
 
 In other words, if the document were forged, that was a 
 matter of little consequence. Ordinary reason would judge 
 that if claimants produced one document of a suspicious char- 
 acter, that one fact of itself would discredit all of the other 
 evidence that they produced, however seemingly strong. If 
 forgery was resorted to in the case of one document, was 
 it not likely that perjured and suborned evidence would also 
 be presented? The one implied the other. In common life, 
 
 91 IX Peters, 731. The Supreme Court took the position that every 
 European government had claimed, and exercised, the right of granting 
 lands while those lands were in the occupation of the Indians. The 
 Mitchell decision was followed by other decisions validating alleged 
 Indian conveyances. See, U. S. vs. Fernandez et al, X Peters, 303, etc.
 
 FURTHER COURSE OF COURT UNDER MARSHALL 345 
 
 if a man be detected telling a serious lie, that conduct tends 
 to have a disqualifying effect upon all of his other statements 
 and actions. 
 
 But the Supreme Court, with a delicious innocence, accepted 
 all of the evidence as valid. In this case it did not even have 
 a formally clear record upon which to base its judgment, for 
 the court below had expressly thrown out a crucial document 
 as presumably forged. And these were the grounds upon 
 which the Supreme Court gave a huge tract of 1,200,000 acres 
 to a handful of absentee capitalists and politicians whose only 
 idea was to dispose of it for their personal profit. 
 
 Judge Peck's Severe Criticism. 
 
 For its decisions in the Missouri and Florida land cases, 
 the Supreme Court was severely criticised by both Judge 
 Peck and Assistant Attorney-General Call. Both of their 
 elaborate refutations were published by the Government at 
 length, nor was any attempt made by the Supreme Court to 
 hale them up for contempt. 
 
 In "his exhaustive review, of December 13, 1835, Judge Peck 
 cited the old Spanish and French land laws, and demonstrated 
 that previous to the year 1796 no concession had been made 
 which exceeded a league square, and that not a single con- 
 cession had been made during that period, except upon the 
 condition of settlement, with a direct view to cultivation or 
 the raising of cattle. Judge Peck then proceeded to prove, 
 point by point, how the alleged large concessions, and all of 
 those claimed in reward for services or not made with a direct 
 view to settlement and occupation, were antedated. 
 
 " I think it probable," concluded Judge Peck, in describ- 
 ing the specific particulars of the extensive system of for- 
 gery, " that at the commencement of this work, the first 
 experiments were on a small scale ; but that, as the work pro- 
 gressed, the minds of those concerned were enlarged, and their 
 labors were conducted upon a scale corresponding to that en-
 
 346 HISTORY OF THE SUPREME COURT 
 
 largement of their views. I do not doubt that the instances 
 are frequent where the same individual has a small, and a 
 large, concession equally fraudulent, sometimes from the rea- 
 son above supposed, and sometimes probably because he 
 wished to have two tickets in the lottery, and draw a smaller 
 if he should not a larger prize." 92 
 
 Again writing from St. Louis on February 10, 1836, to 
 Ethan A. Brown, Commissioner of the General Land Of- 
 fice, Judge Peck submitted another exhaustive memorandum 
 of facts showing the precise circumstances under which the 
 fraudulent land claims had been forged, and proving why it 
 was impossible that they could have been genuinely granted. 
 
 " Aware," he wrote in part, " of the great authority which 
 must justly be allowed to the opinions of the highest tribunal 
 of the nation, and the feeble resistance which the voice of a 
 single individual opposes to them, I could not hope to sus- 
 tain an opposing opinion, however strong my conviction of its 
 soundness, upon any proofs short of those which should be 
 clear and convincing. 
 
 " In sustaining my opinions with such proof, my observa- 
 tions have been protracted to a length which I had not fore- 
 seen ; they, however, will be found, as long as they may appear, 
 to offer to him who is desirous to understand the questions 
 which belong to an investigation of the Spanish land claims, 
 the shortest road by which he shall be enabled to arrive at 
 the truth." In his preliminary observations Judge Peck wrote, 
 " I shall offer no apology for controverting the opinions of 
 the Supreme Court, in an inquiry after truth, when in the 
 prosecution of inquiry, that controversy becomes necessary." 93 
 
 92 " American State Papers : Public Lands," Vol. VIII : 807. 
 
 93 It is obviously out of the question, in the scope of this work, to 
 give even a satisfactorily comprehensive summary of Judge Peck's 
 very extended examinations of the Spanish land claims. The student 
 who wishes to consult them in detail is referred to Doc. No. 1538, 
 "American State Papers: Public Lands," Vol. VIII: pages 797-809, 
 810-812, etc. Judge Peck's statements included certified transcripts of 
 Spanish and French records from the old land office at St. Louis.
 
 FURTHER COURSE OF COURT UNDER MARSHALL 347 
 
 A singularly suspicious fact of which Judge Peck informed 
 the Commissioner of the General Land Office, was that al- 
 though his (Judge Peck's) views and opinions and proofs had 
 been forwarded in print, yet the Attorney-General of the 
 United States had not, it appeared, even offered them to the 
 Supreme Court of the United States. Did this imply collu- 
 sion with the land forgers on the part of the Attorney-Gen- 
 eral? Had certain facts been withheld from the Supreme 
 Court ? This we do not know ; but, as we shall see, it was 
 by no means uncommon for Attorneys-General to collude with 
 land claimants for whom, when in Congress or in the private 
 practice of law, they had been attorneys. 
 
 General Call Controverts the Supreme Court. 
 
 Assistant-Attorney-General Call, who had investigated and 
 defended the Florida land cases for the Government, wrote 
 fully as searching and scathing a criticism of the Supreme 
 Court. In reply to a resolution passed February 23, 1835, by 
 the House of Representatives, directing a report on the Florida 
 land claims, General Call prepared an elaborate review which 
 he sent to Levi Woodbury, Secretary of the Treasury. After 
 stating that cases involving nearly a million and a half acres 
 of land in Florida (irrespective of the huge claims already 
 validated by the Supreme Court), had been largely dependent 
 upon the decision in the Mitchell case, General Call then spe- 
 cifically proved how the grants had been either antedated or 
 unlawfully given. He went on : 
 
 ". . . When we consider the time at which this change 
 occurred when we consider that Don Onis was commissioned 
 to negotiate with this Government for the cession of Florida, 
 as early as the year 1816, it is a fair presumption, in the ab- 
 sence of any law to sustain these grants, that they were made 
 in anticipation of the transfer of the country, and designed 
 as a fraud on the Government of the United States. 
 
 " This, however, in the opinion of the Supreme Court of
 
 348 HISTORY OF THE SUPREME COURT 
 
 the United States, seems to constitute no objection to the valid- 
 ity of these grants. In the case of Clark, 8 Peters, we find 
 the following remark : ' It is stated that the practice of mak- 
 ing large concessions commenced with the intention of ced- 
 ing the Floridas, and these grants have been treated as frauds 
 on the United States.' ' The increased motives for making 
 them have been stated in argument, and their influence can- 
 not be denied. But (say the court) admitting the charge to 
 be ivell founded admitting the Spanish government was 
 more liberal in its cessions, than before ought this circum- 
 stance to affect bona fide titles to which the United States 
 made no objection?' 
 
 " Now, with the most profound respect for the opinion of 
 the Supreme Court of the United States, I cannot admit that 
 the proposition is correctly stated, or that the deduction is 
 properly drawn from the premises. 
 
 " There is a vast difference, I conceive, between the lib- 
 erality of the 'Spanish Government' and the unlawful and 
 unauthorized acts of a Spanish governor, who thinks proper 
 to transcend his power in making grants, because he perceives 
 that the country is about to be transferred to a foreign gov- 
 ernment. The government of Spain, in the person of the 
 King, possessing sovereign and unbounded power over the 
 royal domain, had an undeniable right, in some instances, to 
 exercise liberality in its disposal. While the governor of a 
 province, acting under fixed and limited rules prescribed by 
 law, could not go beyond the law for the purpose of being 
 liberal, and if he did, all such grants made by him must be 
 absolutely null and void." 94 
 
 i 
 The Peculiar Absence of Original Deeds. 
 
 Elsewhere, in the logical course of the scrutiny, General Call 
 wrote : 
 
 94 " American State Papers : Public Lands," Vol. VIII : 252.
 
 FURTHER COURSE OF COURT UNDER MARSHALL 349 
 
 " You will perceive that, in every case contained in this ab- 
 stract, where the original title papers are not produced, the 
 claim is presented under a concession, and not a perfect grant ; 
 and that in every case the copy of the concession offered in 
 evidence is certified by the same person, Thomas de Aguilar. 
 
 " Alvarez states that all the original concessions made by 
 the governors were deposited in the office of the secretary, 
 whose duty it was at the time of making the concession to 
 furnish a certified, copy of it for the grantee. That this of- 
 fice was held from 1809 until 1821 by Thomas de Aguilar. 
 That the original royal or real titles were signed by the gov- 
 ernor, and deposited in the office of the escribano or notary 
 of government, who, in like manner, furnished the grantee 
 with a certified copy of his grant. 
 
 " Now, it is worthy of remark that not a single instance has 
 occurred in the investigation of the land claims of the coun- 
 try where a claimant has presented a copy of the grant certi- 
 fied by the escribano, in which the original grant was not 
 found on examination in the public archives ; and yet that so 
 many and such important cases should be presented under the 
 certified copies given by Thomas de Aguilar, for which no 
 original can be found. 
 
 " It has been attempted to explain this circumstance, by 
 the fact that the perfect grants or real titles were drawn and 
 signed on the protocols of the notary, and that they were 
 afterward bound in books, which rendered them less liable to 
 be mislaid and lost than the concessions which were merely 
 tied up in bundles. But it is a fact well known, that two- 
 thirds of these original complete titles are still remaining in 
 the sheets on which they are described by the witness to 
 have been drawn ; and the difference in the correspondence 
 between the originals and the copies from the two offices, can 
 only be accounted for by the difference in the fidelity and in- 
 tegrity of the two offices by whom the originals were kept, 
 and the copies certified."
 
 35O HISTORY OF THE SUPREME COURT 
 
 General Call then went on to point out " that the remark- 
 able difference in the quantity of land contained in the real 
 titles given by Governor White, and that contained in the 
 certified copies of concessions, said to have been made by him, 
 is worthy of consideration, and goes far to sustain the belief 
 that there never were any originals in those cases." Call 
 continued : 
 
 Why Had the Claims Been Held Back? 
 
 " But if these large concessions are genuine if they were 
 issued in 1794, 1809, 1810 and 1811, according to their respec- 
 tive dates, why, permit me to ask, were they not matured into 
 real titles under the government of Spain? Were these con- 
 cessions of 256,000 and 368,644 acres of so little importance 
 as to be neglected by the claimants, or were they not sensible 
 of the necessity of having their titles confirmed? 
 
 " Some of them, at least, appear to have been sufficiently 
 apprised of this necessity, for we find the same Arredondo 
 and the same Miranda, who now claim under these large con- 
 cessions, applying for and obtaining confirmations of titles 
 for tracts of four, five, and six hundred acres, so late as the 
 years 1820 and 1821, as will be shown by reference to docu- 
 ment marked B. These parties knew full well, that under 
 the laws and ordinances of Spain, and under the practice and 
 usage of that government, the concession, if legal and proper, 
 gave them but the inception of right, and that until consum- 
 mated by a ' real ' title, they could enjoy no permanent estate 
 in the land. Most of them were inhabitants of the town of 
 St. Augustine, the seat of the provincial government, and 
 must have been apprised for several years of the anticipated 
 transfer of the province to the United States. 
 
 " From the character of these claims, and the conduct of 
 the claimants, it is difficult to avoid one or two conclusions, 
 both of which are equally fatal to the interest of the parties.
 
 FURTHER COURSE OF COURT UNDER MARSHALL 351 
 
 First, that they are spurious, or secondly, that their confirma- 
 tion was denied by the Spanish authorities. For we cannot 
 believe that individuals holding these large concessions would 
 neglect to apply for their confirmation, at a time when they 
 were soliciting and obtaining perfect titles for small tracts, of 
 so much less importance." 
 
 The Mitchell Decision Denounced. 
 
 Then proceeding to show how " the grossest frauds on the 
 government may be rendered successful, by concealing or de- 
 stroying the originals," General Call went on : 
 
 " There are certainly many reasons why these copies should 
 not be received in evidence, until the absence of the originals 
 shall have been satisfactorily accounted for. Until this is 
 done, the rules of evidence forbid them to be received and a 
 departure from those well-known and salutary rules would 
 open a door for fraud, not to be closed, so long as the gov- 
 ernment has one acre of unappropriated land in Florida. 
 
 " What other security, I would ask, can the government 
 have against spurious and pretended claims, than to require 
 the production of the original grant, or that its absence should 
 be satisfactorily accounted for? 
 
 " Forgeries may be detected by comparison, and proof of 
 genuine signatures; but as it was the duty and practice of 
 Thomas de Aguilar to give copies of all concessions made by 
 the governor to the claimant, if he has, since the transfer 
 of the country to the United States, been induced to give cer- 
 tified copies of concessions, when there are no originals, what 
 check or control can be placed on his fraudulent designs, 
 and those with whom he may have been associated, than to 
 require that the originals shall be found in the office where the 
 copy professed to have left them, or proof that they once ex- 
 isted there, and that they have since been lost or destroyed ?
 
 352 HISTORY OF THE SUPREME COURT 
 
 " In reply to that part of your letter which requires me to 
 state whether, in my opinion, these cases, or any of them, are 
 embraced by the decisions already given by the Supreme Court 
 of the United States ; in candor -I must say, that as bad as I 
 believe these cases to be, yet I consider the worst of them 
 little inferior in law or equity to most of them already 
 decided by the court; and that the principle settled in the 
 case of Mitchell and others vs. the United States, will, if 
 applied, cover all the objections which can be presented to 
 the confirmation of any of the cases now depending in any of 
 the courts of the Territory, except in those cases where the 
 land is situated within the Indian boundary, on which I shall 
 hereafter offer a few remarks. I consider that the badges of 
 fraud were as strongly developed in the cases of Mitchell and 
 others as they are in the worst of the cases contained in ab- 
 stract No. 2. 
 
 " So far as the question of evidence is involved, there is 
 an exact correspondence between that case and those which 
 depend upon certain copies of concessions. 
 
 " In the case of Mitchell and others, the copies on which 
 the suit was founded were taken from copies certified to by 
 Pablo de Lorin, secretary, and Maximilian de Maxent, lieu- 
 tenant governor, of West Florida. In the cases now depend- 
 ing in court, the copies are certified by Thomas de Aguilar, 
 secretary of the government of East Florida. In both, the cer- 
 tificate states that the original remains in the archives. The 
 archives of East and West Florida, and the archives of Cuba, 
 have been diligently searched, and no original is to be found. 
 Jn both, the absence of the originals were entirely unaccounted 
 for." 
 
 As to the acceptance of these certified copies by the Su- 
 preme Court of the United States, as sufficient proof of the 
 originals, General Call wrote : " One would suppose, from 
 the description of these certified copies, thus given by the 
 court, that they were notarial acts, or ' authentic acts ' ; that
 
 FURTHER COURSE OF COURT UNDER MARSHALL 353 
 
 they were executed by a notary public, with all the forms and 
 ceremonies; and that they were entitled to all the faith. and 
 credit given to such instruments by the civil law. . . . 
 Now it will be shown, by an examination of each, that the 
 originals were not notarial instruments. That they were not 
 written on a notarial protocol, or countersigned by a notary 
 public. Nor was any one of the copies taken from the orig- 
 inals by a notary public, and signed and certified by him as 
 such. On the contrary, they are all, both originals and copies, 
 what are termed in the civil law private acts, and entitled to 
 no faith or credit whatever." 95 
 
 Yet on the sole strength of these alleged copies, the Su- 
 preme Court of the United States validated then and event- 
 ually the defrauding of 2,711,290 acres of the best lands in 
 Florida, and tens of millions of acres elsewhere. 
 
 Death of Chief Justice Marshall. 
 
 But when these penetrating criticisms appeared, Chief Jus- 
 tice Marshall was no more. He died on July 6, '1835, aged 
 eighty years. 
 
 The funeral ceremonies were impressive, the eulogies im- 
 posingly laudatory. The legacy that he bequeathed to the 
 governing class was of incalculable value : precedents estab- 
 lished by him have been applied and amplified ever since as 
 organic principles of law and government, and the omnipotent 
 authority of the Supreme Court of the United States, so suc- 
 cessfully asserted by him, has not only remained unimpaired, 
 but has been extended even to the point of declaring that 
 while conquered colonies are subject to the authority of the 
 United States, the Constitution does not apply to them. 
 
 As a jurist, John Marshall's fame has been overdrawn and 
 lavishly colored. It is in his capacity of judicial dictator that 
 
 95 The above are integral and consistent parts of the whole of Gen- 
 eral Call's voluminous critical review. The full paper is set forth in 
 Document No. 1348, " American State Papers : Public Lands," Vol. VIII.
 
 354 HISTORY OF THE SUPREME COURT 
 
 he should be noted, and stand supreme; of monarchical and 
 other dictators the world has seen a plenitude, but of the 
 juridical dictator who could at will annul and create law in a 
 supposed republic, the like of John Marshall had never before 
 been known. For thirty-four years he had dispensed his law, 
 the never-varying purpose and end of which was always, and 
 under all circumstances, justification of methods and policies 
 benefiting the governing class of wealth and po.wer. 90 
 
 90 One of the suggestive expressions of opinion on Marshall's career 
 was that of William Leggett, a founder of the Equal Rights Party and 
 co-editor with William Cullen Bryant of the New York Evening Post. 
 When Marshall died, the New York Evening Post, on July 28, 1835, 
 published an editorial by Leggett. ". . . Few things," wrote Leggett, 
 " have ever given us more disgust than the fawning, hypocritical and 
 unqualified lamentations which are poured out by the public press on 
 the demise of any conspicuous political opponent. Of the man whom 
 the day before it denounced in terms of the most unmeasured bitter- 
 ness, let him but shuffle off his mortal coil, and the next day it is loud 
 in indiscriminating, unlimited praise. . . ." Leggett then went on 
 to say that although tribute should be paid to Marshall's many esti- 
 mable qualities and powers of mind, yet " we cannot but experience 
 joy " that the chief place in the supreme tribunal of the Union would 
 be no longer filled by such a judge as Marshall, and that no grief 
 would be felt " that the cause of aristocracy has lost one of its chief 
 supports." "A Collection of the Political Writings of William Leg- 
 gett" (Edition of 1840), Vol. II: 3-7.
 
 CHAPTER IX 
 THE SUPREME COURT UNDER CHIEF JUSTICE TANEY 
 
 With Marshall's death, and with the appointment of his 
 successor, an immediate transformation of the Supreme Court, 
 in one constituent respect, was witnessed. The functions, 
 authorized or self-arrogated, of that tribunal remained the 
 same; the ancient juridical authorities of legal maxims were 
 subjected to no new interpretation ; the fundamentals of law 
 continued in force unaltered. The transformation was not 
 one of the character or power of the institution ; it was* purely 
 one embodying the divergent views, on a particular question, 
 of new members from those held by the old body. 
 
 From the organization of the Supreme Court, its incum- 
 bents were punctiliously and critically., chosen, not primarily 
 because of their knowledge of law, but with the certain antici- 
 pation that they would apply law in consonance with the creed 
 and interests of the divisions of the class from which their 
 appointments came. Their selection was not, in the intrinsic 
 sense, a judicial appointment; political considerations alone 
 determined who was to go on the Supreme Court Bench. But 
 politics was not an idle formula, neither was it an inane 
 pastime. It was a definite, virile struggle between classes, 
 or groups of classes, for power ; behind the ceaseless reach 
 for power lay the stimuli of mixed personal and class inter- 
 ests. Superficially, those political conflicts were invested with 
 an impressive show of principle or patriotism. But analyz- 
 ing them, in a large sense, they were nothing less than wars 
 for the perpetuation of the interests of one class, and the sup- 
 pression of those of another. But while the propertied class, 
 
 355
 
 356 HISTORY OF THE SUPREME COURT 
 
 in its entirety, was warring to retain and extend its power, it, 
 at thfe same time, had its own internal wars which resolved 
 themselves into furious conflicts in the political arena. 
 
 Far from being an harmonious, compact whole, the capital- 
 ist class was sundered into various contending divisions. 
 Each of these fought, if not for political supremacy, at least 
 for political advantage. On the general issue of government 
 representing the propertied classes, all of these divisions were 
 agreed. All believed in a government the personnel of which 
 recognized, advocated and enforced the superiority of prop- 
 erty rights and the preeminent claims of property interests. 
 All were united in holding that government should encourage 
 the development of capital, and all opposed the proposition 
 that government should exercise any solicitude for those in- 
 capable of taking care of themselves meaning the working 
 class. 
 
 But united on this point, the capitalist class was in other re- 
 spects torn by acute dissensions. The native manufacturers ar- 
 rayed themselves against the native importers, complaining 
 of the privilege allowed to the importers of long-time credit 
 in paying customs dues. By what right, protested the manu- 
 facturers, were these " overgrown capitalists " permitted 
 practically to use public funds as their private capital? The 
 importers also profited from free trade or low tariff; the na- 
 tive manufacturers agitated for a high protective tariff. 
 Among the bankers a similar conflict developed. The own- 
 ers of the State banks fiercely denounced the monopoly of 
 Government deposits held by the Bank of the United States. 
 In 1816, there were two hundred and forty-six of these State 
 chartered banks; by 1837, fully eight hundred were in opera- 
 tion. 
 
 State Bank Interests Triumph. 
 
 The long struggle for political control of the banking situa- 
 tion resulted in victory for the State banks when Jackson was
 
 UNDER CHIEF JUSTICE TANEY 357 
 
 elected President. Immense sums of money were expended 
 by the Bank of the United States in the effort to influence the 
 Presidential election, but the Jackson forces, by making it 
 appear that the struggle was one between democracy and the 
 monied aristocracy, won the support of a large part of the 
 working class. Yet 'in fact, as the workers recognized soon 
 after, the contest was merely one between two capitalist di- 
 visions; the State banks had committed abuses and frauds as 
 great as those of the Bank of the United States ; and when 
 the State banks succeeded in wresting political control from 
 the Bank of the United States, it simply signified that one set 
 of capitalists had been deposed to make way for another. 
 
 Among the initiated, and even among a considerable section 
 of the reading public, the prestige of the Supreme Court of 
 the United States, at this time, was not high. Its decisions 
 validating land frauds of surprising magnitude had been 
 freely and incisively criticised. Its political character had. 
 been denounced, and its usurpations vehemently assailed. 
 President Jackson not only manifested his open contempt for 
 two of its decisions, but by those self-same acts he proved 
 that Supreme Court decisions affecting national interests were 
 not binding and conclusive unless the Executive chose to con- 
 sider them so. In a case involving the title to certain lands in 
 Georgia claimed by both the Cherokee tribe and the white set- 
 tlers, Marshall, in 1832, decided against the white settlers. 
 " John Marshall," retorted Jackson, " has delivered his opin- 
 ion, now let us see him enforce it." Which assuredly Mar- 
 shall could. not, since the physical force necessary to support 
 the Supreme Court's edict could only be supplied by the 
 Executive. Jackson, in another case, demonstrated how Su- 
 preme Court decisions could be reduced to utter sterility. 
 When in vetoing a bill rechartering the Bank of the United 
 States, his attention was called to the decision of the Supreme 
 Court that the power of Congress to charter a national bank 
 was constitutional, he announced that he would disregard that
 
 358 HISTORY OF THE SUPREME COURT 
 
 decision on the ground that the Supreme Court had no right 
 to dictate to a coordinate branch of government. And he did 
 disregard it. 
 
 But while ignoring those decisions Jackson was filling the 
 Supreme Court, as fast as vacancies occurred, with men op- 
 posed to the Bank of the United States. He had already 
 appointed McLean and Baldwin ; on January 9, 1835, he ap- 
 pointed James Moore Wayne to succeed Justice Johnson. 
 Wayne, who was born in Savannah, Georgia, in 1790, had 
 served in the Georgia Legislature, had been Mayor of Savan- 
 nah, a State judge, and had been a member of Congress from 
 1829 to 1835. 
 
 The dictum that the Supreme Court of the United States 
 is an institution superior to criticism was not accepted in that 
 era. Judges, lawyers and laymen frequently dissected and 
 exposed its decisions, and attacked its arrogations of power. 
 Nor were they summoned for contempt. Thus, of the nu- 
 merous criticisms publicly made, it may be advisable to quote 
 here remarks by Robert Rantoul, one of the most prominent, 
 liberal and respected attorneys of the time. 1 These are some 
 extracts from his oration at Scituate, Massachusetts, July 4, 
 1836: 
 
 ". . . Why is an ex post facto law, passed by the Legis- 
 lature, unjust, unconstitutional and void, while Judge-made 
 law, which, from its nature, must always be ex post facto, is 
 not only to be obeyed, but applauded? Is it because Judge- 
 made law is essentially aristocratical ? . . . 
 
 1 At the instigation of the boot and shoe manufacturers, the officials 
 of Boston brought an action against the Boston Journeymen Boot- 
 makers' Society, on the ground that it was a conspiracy. The lower 
 court ruled against the union, and the jury returned a verdict of guilty. 
 But on appeal in the Supreme Court of Massachusetts, Rantoul, by 
 an able argument, had that verdict reversed. He successfully argued 
 that the old English law of the time of Queen Elizabeth, making it a 
 criminal offense to refuse to work for certain wages had not been 
 specifically adopted as common law in the United States after the 
 Revolution. See, Metcalf's Reports (Supreme Court of Mass.), Vol. 
 IV: in.
 
 UNDER CHIEF JUSTICE TANEY 359 
 
 " Judge-made law is ex post facto law, and therefore un- 
 just. An act is not forbidden by the Statute law, but it be- 
 comes, by judicial decision, a crime. A contract is intended, 
 and supposed to be, valid, but it becomes void by judicial 
 construction. The Legislature could not effect this, for the 
 Constitution forbids it. The Judiciary shall not usurp leg- 
 islative power, says the Bill of Rights ; yet it not only usurps, 
 but runs riot beyond the confines of legislative power. 
 
 "Judge-made law is special legislation. The judge is hu- 
 man, and feels the bias which the coloring of the particular 
 case gives. If he wishes to decide the next case differently, 
 he has only to distinguish, and thereby make a new 
 law. . . ." 2 
 
 If this was revealing the secret springs of the judicial mech- 
 anism, it was only disclosing what the judges were themselves 
 publishing by their own acts. 
 
 Roger B. Taney's Career. 
 
 President Jackson appointed Roger B. Taney, of Mary- 
 land, as Chief Justice to succeed Marshall. As an attorney 
 and office holder, Taney had been associated with all three 
 of the dominant divisions of the ruling class the slave 
 power, the State banks, and the cliques of land appropriators 
 and speculators. By interest as well as by bias his support 
 of all three was assured. But considerable religious preju- 
 dice was displayed against him, because of his Roman Cath- 
 olic faith. 
 
 He was born in the year 1777. " My father, Michael 
 Taney," he wrote, " owned a good landed estate, on which 
 he always resided, and slaves." His father's plantation was 
 on the banks of the Patuxent River, in Maryland. " My 
 mother," he went on, " was the daughter of Roger Brooke, 
 who owned a large landed estate on Battel Creek, directly 
 
 ? " American Jurist," Vol. XVI : 229-230,
 
 360 HISTORY OF THE SUPREME COURT 
 
 opposite to that which belonged to my father." 3 Admitted 
 to the bar in 1799, Taney was elected to the Maryland Leg- 
 islature, in which he served a year. His marriage, in 1806, 
 to Anne Key, a sister of Francis Scott Key, enlarged his 
 circle of influential connections ; Taney and Key had been 
 law students together at Annapolis, and Mrs. Key's sister was 
 the wife of Judge Nicholson, Chief Justice of the Baltimore 
 Court, and one of the Judges of the Court of Appeals of 
 Maryland. In 1816, Taney was elected to the Maryland Sen- 
 ate, and in 1827 Attorney-General of Maryland. 
 
 Both Taney and his brother-in-law were personally inter- 
 ested in State banks, and were attorneys for them. Key rep- 
 resented the Bank of Columbia, the Bank of the Metropolis 
 of Washington, and other banks.* Taney was one of the 
 principal owners of the Frederick County Bank. " He was, 
 for years," says Tyler, " a director in the Frederick County 
 Bank, and hardly ever missed a meeting of the board of di- 
 rectors." 5 
 
 Taney was also not only a considerable stockholder in the 
 Union Bank of Maryland one of the largest banks in the 
 State but also was attorney for the bank, and for its chief 
 owners individually. His interest in that bank caused a lively 
 scandal later, when, as Secretary of the Treasury, Taney fav- 
 ored it by having Government funds deposited with it. His 
 appearing in court, as an attorney for the Union Bank of 
 Maryland, was frequent. Taney also was attorney for the 
 Baltimore Equitable Society, and other corporations. 6 His 
 practice was wholly one of representing large banking and in- 
 surance corporations, powerful landholders such as Charles 
 
 3 So Taney wrote in a biography of himself for use as a prefatory 
 memoir in Tyler's "Memoir of Taney" (Edition of 1872), pp. 21-22. 
 Tyler, for many years up to Chief Justice Taney's death, was Taney's 
 confidential man, and was selected by Taney to write his biography. 
 
 4 See, I Harris and Gill's Reports, 236-242 ; I Peters, 459, etc. 
 B " Memoir of Taney," 102. 
 
 6 See, I Harris and Gill's Reports, 191, 295, etc,
 
 UNDER CHIEF JUSTICE TANEY 361 
 
 Carroll, and shippers and other capitalists of wide corporate 
 interests. 
 
 The large landholders, slave owners and capitalists of 
 Maryland had early associated together in lobbying bills 
 through the Legislature incorporating them as owners of bank, 
 insurance and other charters. As early as 1795, Charles Car- 
 roll, Solomon Etting, Andrew Buchanan and others had ob- 
 tained a charter for the Marine Insurance Company, with 
 an allowed capital of $3OO,ooo. 7 On January 12, 1805, Etting 
 and associates had secured a charter for the Union Bank of 
 Maryland, with an empowered capital of $3,000,000. These 
 men were indefatigable promoters, of various schemes and 
 corporations ; among other enterprises they obtained charters 
 for turnpike companies, and a charter, in 1816, for the Bal- 
 timore Improvement Company, with a capital of $500,000, to 
 make public improvements of one kind or another in the city 
 of Baltimore. 8 
 
 Taney was Etting's attorney in the higher courts. In one 
 case, where he appeared for Etting, in the Supreme Court of 
 the United States, in 1826, the facts developed must have 
 been of exceeding interest to the members of the Supreme 
 Court. In 1819, the very ^year in which they had declared 
 the Bank of the United States a good and Constitutional 
 institution, McCullough, the cashier of the Branch of that 
 Bank at Baltimore, had, in collusion with other officials of 
 the bank, stolen (the court records say "misapplied") the 
 modest sum of $3,497,700. In the settlement with the di- 
 rectors of the Bank of the United States, a part of the se- 
 curity offered by McCullough were indorsements by sixteen 
 merchants of Baltimore, who individually bound themselves 
 for $12,500 each. Among these merchants was Etting. He 
 refused to pay his bond on the ground that he had indorsed 
 
 7 " Laws of Maryland," Vol. II, Chapter 59. 
 
 8 Ibid., 1816-1818: p. 215, etc. (Chap. 260.)
 
 362 HISTORY OF THE SUPREME COURT 
 
 without knowledge of McCullough's thefts. The decision 
 went against him. 9 
 
 At the same time Taney was one of the attorneys arguing, 
 in the Supreme Court, for the interests of Charles Carroll of 
 Carrollton. It was an action brought against Carroll by the 
 administrator of Louisa Browning, a demented daughter of 
 Lord Charles Baltimore. The father of Charles Carroll had 
 received, in 1711, from Lord Baltimore (great grandfather 
 of Louisa Browning), a grant of a tract of ten thousand acres 
 of land, in consideration of a yearly quit rent of 100 sterling 
 in silver and gold. Louisa Browning's administrator sued to 
 recover the amount of these quit rents. Justice Story de- 
 cided the action in favor "of Carroll, on the ground that, in 
 1780, the Legislature of Maryland had abolished quit rents. 10 
 So too, it may be remarked, had the Legislature of Virginia 
 confiscated alien estates, but that had not prevented John Mar- 
 shall from getting the Fairfax estate, by force of Justice 
 Story's own decision in the noted case of Fairfax's Devisee 
 vs. Hunter. 
 
 His Defense of the Slave Trader, Gooding. 
 
 One of the most noteworthy of Taney 's cases was his suc- 
 cessful defense in the indictment of the slave trader, John 
 Gooding. 
 
 Baltimore, as we have said, was one of the most active 
 ports in the business of fitting out ships for the slave traffic, 
 and of those engaged in slave snatching, Gooding was one of 
 the most conspicuous and avaricious. For many years Good- 
 ing had been promoting various illegal undertakings. He 
 was, for instance, one of the leading spirits in the Baltimore 
 
 9 Wheaton's Reports, Supreme Court of the United States, Vol. 
 XI : 59- 
 
 10 XI Wheaton, 134-171. It was in this case (as heretofore noted) 
 that Justice Duvall did not sit, because, as he indited on the records, 
 he was a landowner in Maryland,
 
 UNDER CHIEF JUSTICE TANEY 363 
 
 Mexican Company, organized in 1816, to supply General Mina 
 of Mexico with the means to fit out an expedition for the 
 purpose of driving the Spanish from control of Mexico. The 
 financing of General Mina was, in itself, a good undertaking, 
 but no high purpose animated Gooding and his associates; 
 they were solely concerned with deriving an enormous per- 
 centage on their investment, if General Mina succeeded. But 
 the attempt against Spain was a failure, and Mina perished 
 with it. Although the acts of the Baltimore Mexican Com- 
 pany were admittedly a violation of the neutrality laws, yet 
 after Mexico had achieved its independence the company 
 made a claim for approximately $355,000, only a part of 
 which they had actually advanced. This was one of the 
 fraudulent claims adjusted and paid by the Convention be- 
 tween Mexico and the United States in 1839, and validated 
 by a Supreme Court decision in i860. 11 
 
 Gooding was indicted in 1824 at Baltimore, for having 
 violated the Slave Trade Act, of 1818. The indictment 
 charged Gooding with having fitted out vessels called the 
 General Winder and the Pocahontas as slavers to kidnap ne- 
 groes in Africa, and sell them in Cuba. The Government 
 produced evidence proving that Gooding had hired Captain 
 John Hill to take command of the General Winder, and that 
 Hill " ordered various fitments some of which were peculiarly 
 adapted for the slave trade, and are never put on board any 
 other vessels than those intended for such trade." These 
 chains and other apparatus were taken on board at St. Thomas, 
 West Indies. The General Winder brought back two hundred 
 and ninety negroes from Africa. 
 
 Taney and Mitchell, attorneys for Gooding, appealed to the 
 Supreme Court of the United States to dismiss the indict- 
 ment. They made no serious effort to attack the complete 
 chain of evidence. Although they tried to have certain evi- 
 
 11 Howard's Reports (Supreme Court of the United States), Vol. 
 XXIV: 319-
 
 364 HISTORY OF THE SUPREME COURT 
 
 dence excluded, yet their main arguments were entirely con- 
 fined to advancing seven technical objections to the counts in 
 the indictment. That Gooding's guilt was proved by the evi- 
 dence was clear. It was equally plain that on the merits of 
 the case they could not get him free. They, therefore, with 
 specious arguments concentrated their assault on the technical 
 wording of the indictment. 
 
 In delivering the court's decision Justice Story opened with 
 a significant warning. " We take this opportunity," he said 
 in his decision in 1827, " of expressing our anxiety lest by 
 too great indulgence to the wishes of counsel, questions of this 
 sort should be frequently brought before this court, and thus, 
 in effect, an appeal in criminal cases become an ordinary 
 proceeding, to the manifest obstruction of public justice, and 
 against the plain intendment of the acts of Congress." This 
 was a clear enough intimation. 
 
 Certain evidence that Taney and Mitchell sought to have 
 excluded Justice Story declared admissible. And, so far as 
 an agent doing a thing was concerned, Story continued, " It 
 is the known and familiar principle of criminal jurisprudence 
 that he who commands, or procures, a crime to be done, is 
 guilty of the crime, and the act is his act." The owner did 
 not have to be personally present. Nor was it essential, as 
 Taney had argued, that to constitute a fitting-out, every equip- 
 ment necessary for a slave voyage should be taken on board. 
 Neither was it necessary, Story said further, to specify the 
 particulars of the fitting out. 
 
 The Indictment " Fatally Defective." 
 
 But, Story decided, the indictment was " fatally defective " 
 in not averring that the vessel was fitted out or sent from 
 within the jurisdiction of the United States, and that the 
 averment in the indictment, " with the intent that the said 
 vessel should be employed in the slave trade," was also " fa-
 
 UNDER CHIEF JUSTICE TANEY 365 
 
 tally defective " inasmuch as the Slave Trade Act of Con- 
 gress read, " with intent to employ " etc. 12 
 
 This decision was received with the profoundest disquie- 
 tude by the opponents of slavery. Deepfy shocked by the 
 revolting horrors of the slave traffic, they had long sought 
 to implant fear in those engaged in it by having some of its 
 leaders consigned to exemplary punishment. And now they 
 found themselves balked by quibbles and twistings and fine- 
 drawn technicalities; now they saw the highest court in the 
 land, while admitting the guilt of one of the most notorious 
 slave traders to be fully proved, yet at the same time granting 
 immunity because the wording of the indictment did not suit 
 fastidious judicial requirements. They agitated bitterly that 
 whatever were the professions of the Supreme Court, the 
 practical effect of its decisions was not only to legalize chattel 
 slavery, but to extend a full and authoritative license to the 
 slave traders to continue their horrid traffic undeterred by 
 prospect of personal punishment. 
 
 Among those opposed to the extension of chattel slavery, 
 or favoring the emancipation of the slaves, Taney's success- 
 ful plea for Gooding 13 was looked upon as a discreditable 
 and disgraceful piece of pettifoggery. But the view of the 
 slave holders and slave traders was exactly the reverse. 
 They conceived the highest regard for Taney's adroitness 
 and sharp capacity. His success in this case was one of the 
 reasons that caused them to push him forward later for At- 
 torney-General of the United States, Secretary of the Treas- 
 ury, and then for the Chief Justiceship of the Supreme Court 
 of the United States. 
 
 12 Case of U. S. vs. Gooding, XII Wheaton, 460-468. 
 
 13 Gooding (for some reason not now discoverable) went insolvent 
 in 1829. But his creditors, by virtue of a decision, in 1860, of the 
 Supreme .Court under Chief Justice Taney, secured that court's ap- 
 proval of the legality of the Baltimore Mexican Company's claim, not- 
 withstanding it was made in admitted violation of the neutrality laws. 
 Gooding's creditors received the sum of $39,381.82, that being the one- 
 ninth share arising from Gooding's interest in the company.
 
 366 . HISTORY OF THE SUPREME COURT 
 
 The Case of the " Warren." 
 
 Another case defended by Taney and having its own pe- 
 culiar aspects, was the action of James Sheppard and others 
 against Lemuel Taylor, James A. Buchanan, John Hollins and 
 others, nearly all of whom were incorporators and directors 
 of the Union Bank of Maryland. This fact explained 
 Taney's appearance as one of the attorneys for Taylor et al. 
 
 Compactly put, the facts of this case, as narrated in the 
 court records, were as follows: 
 
 On September 12, 1806, the ship Warren, six hundred tons, 
 armed with twenty-two guns, sailed from Baltimore with a 
 crew of one hundred and twelve officers, seamen and appren- 
 tices, and a cargo valued at $300,000. The ostensible voyage, 
 as set forth in the shipping articles, was to the northwest 
 coast of America, thence to Canton, and back to the United 
 States. Two sets of instructions were given by Taylor, 
 Buchanan, Hollins and the other owners one the nominal 
 set to Captain Sterrett; the other private and confidential, to 
 Supercargo Pollock, who was the only person aboard know- 
 ing the real purpose and destination of the voyage. 
 
 Upon arriving at a certain latitude, the real set of in- 
 structions was opened, and the Captain was thus informed that 
 Supercargo Pollock was to have entire control of the voyage. 
 The account in the records of the Supreme Court of the 
 United States goes on to say that from that time the ship 
 " proceeded directly for the coast of Chili, to prosecute an 
 illegal and smuggling trade with the Spanish provinces, on 
 the western coast of South America ; all trade within those 
 provinces being notoriously forbidden, under heavy penalties, 
 unless conducted under a license from the crown of Spain. 
 
 " The officers and crew of the Warren protested against 
 this deviation from the prescribed voyage; and Captain Ster- 
 rett, from disappointed and wounded feelings, disdaining to en- 
 gage in an illicit trade, and unwilling to expose his officers and
 
 UNDER CHIEF JUSTICE TANEY 367 
 
 men to its perils and consequences, became partially deranged, 
 and shot himself as the Warren was doubling Cape Horn." 14 
 Chief Mate Evans succeeded in nominal command, but 
 Pollock kept control, and steered the ship for Conception Bay, 
 Chili, where she arrived, after a voyage of one hundred and 
 twenty days from Baltimore. At Conception Bay, Pollock 
 went on shore to arrange matters with the Spanish officials. 
 During his absence Captain Evans and the commanders of 
 the Spanish men-of-war fell into a dispute ; some shots were 
 exchanged, but no lives were lost. The crew remonstrated 
 against the illegal traffic into which they were forced, and 
 proposed to proceed with the ship on the voyage for which 
 they had contracted, leaving Pollock ashore. Captain Evans 
 refused to enter the port without a written order; this was 
 sent to him and the Warren sailed into the port of Talcahu- 
 ana. 
 
 Pollock, meanwhile, had been acting in collusion with the 
 Spanish officials. Furious at the mutinous conduct of the 
 crew he planned retaliation, which he accomplished in this 
 wise: As soon as Captain Evans went ashore, the seamen, 
 twenty at a time, were taken on land under a pretense that 
 their depositions were required relative to the death of Cap- 
 tain Sterrett. The moment the seamen set foot on shore 
 they were seized and put in prison. The officers and appren- 
 tices proposed to rescue the Warren and informed Pollock 
 of their purpose. They did not know that Pollock and the 
 Spanish officials were acting together. As soon as Pollock 
 heard of their intention he had his and Evans' baggage con- 
 veyed ashore and Spanish officers took off the ship's rudder 
 and otherwise disabled her from sailing. The officers and 
 apprentices of the Warren were arrested; then officers and 
 crew " were ordered to Conception, and thence were marched 
 to various prisons and dungeons, and suffered captivity from 
 eight months to four years, being permitted to return to the 
 14 V Peters, 676-677.
 
 368 HISTORY OF THE SUPREME COURT 
 
 United States at various periods. The apprentices and some 
 of the officers were the first to return ; their absence from the 
 United States was after an imprisonment of from six to 
 eighteen months." 15 
 
 The officers and seamen in bringing, in 1810, an action for 
 their wages, contended that by agreements between the Span- 
 ish Commandant and Pollock, the cargo was smuggled ashore, 
 and that by order of the Spanish court, the vessel and cargo 
 were sold and the proceeds were ordered deposited in the 
 king's treasury, subject to an appeal by Pollock. The years 
 dragged on, while the Spanish red tape unwound. In 1819, 
 all of the owners of the Warren curiously became insolvent, 
 and presently- assigned their claims, part going to Robert 
 Oliver, part to the Branch of the Bank of the United States 
 at Baltimore, and another part to the Union Bank of Mary- 
 land at Baltimore. But, as a matter of fact, these assign- 
 ments were held in trust for Taylor, Buchanan, Hollins and 
 others of the original owners. 
 
 Powerful political influences were brought into action; and 
 taking advantage of the Florida Treaty of 1819, the owners 
 of the assignments pressed their claims against Spain for pay- 
 ment for the confiscated ship and cargo. They finally re- 
 ceived in 1824 a total of $184,011.90 in settlement. 
 
 But they refused to pay the wages due to the officers and 
 seamen of the Warren. Certainly the demands of the crew 
 were extremely modest. They did not ask redress, as they 
 could have asked, for being wheedled into signing contracts 
 under false pretenses. They did not demand, as they were 
 justly entitled to do, damages for their long imprisonment. 
 They simply claimed the wages due them from the time that 
 they had left Baltimore to the time of their return, to the 
 United States, deducting such advances as they had received. 
 
 Taney and Wirt, as the attorneys for the banks and others, 
 contested their claim for years, arguing that the indemnity 
 
 i5V Peters, 678.
 
 UNDER CHIEF JUSTICE TANEY 369 
 
 fund received by the assignees was not liable for wages 
 claimed. In the lower court, the assignees won the case. 
 
 Justice Story's Severe Comments. 
 
 By an unanimous decision however, the Supreme Court of 
 the United States in January, 1831, decided in favor of the 
 officers and crew. In delivering the court's opinion, Justice 
 Story said that " the first question is whether in point of fact, 
 the libellants have substantially sustained the allegations in 
 the libels and petition in respect to the voyage ; to their igno- 
 rance of the intended illicit trade; to the seizure of the ship 
 and to their own imprisonment and separation from it: which 
 are necessary to maintain their claim for wages. And we 
 are of opinion that the evidence upon these points is conclu- 
 sive. Without going into the particulars, it may be said that 
 few cases could be presented under circumstances of more 
 aggravation, and in which the proofs were more clear, that 
 the seamen were the victims of an illicit voyage, for which 
 they never intended to contract, and in which they had no 
 voluntary participation." 10 The Supreme Court reversed the 
 lower court, and ordered the arrears of full wages paid, but 
 without interest except from the time of the bringing of the 
 suit against the assignees, in 1825. 
 
 Taney then moved that the court rescind and annul its de- 
 cree. He pleaded that the case be reargued, so as to allow 
 proof of expenses incurred by the owners in prosecuting the 
 claim against Spain and before the Florida Commissioners, 
 and compensation to which the assignees held themselves 
 entitled for their services, as general agents for those inter- 
 ested in the claim fund. If these and others of Taney 's pro- 
 posals had all been allowed, hardly anything of the fund 
 would have remained to pay the wages due. Most of them 
 were impudent propositions, and the court so considered 
 
 10 Ibid., 710.
 
 37O HISTORY OF THE SUPREME COURT 
 
 them. The only two it allowed were those permitting a two- 
 and-a-half per cent, for services, and expenses incurred in 
 prosecuting the claim before the Florida Commissioners. The 
 proposal to allow expenses in pushing the claim against Spain 
 was curtly refused. Justice Baldwin dissented in the item of 
 allowing any commission to the assignees. 17 
 
 Taney Appointed U. S. Attorney-General. 
 
 When Taney was appointed Attorney-General of the United 
 States in 1831, the foes of chattel slavery were perturbed to 
 a point approaching consternation. Here, they pointed out, 
 was a man, the son of a slave owner ; perhaps the foremost 
 advocate of the interests of the slave traders ; the defender 
 of the notorious slaver Gooding; a man who would unhesi- 
 tatingly pocket his fees from the profits of the kidnapping of 
 blacks; a man who would plead the cause of smuggling de- 
 coyers of seamen this was the man placed in charge of the 
 civil and criminal machinery of the United States Govern- 
 ment! 
 
 But if the opponents of chattel slavery were dismayed, the 
 powerful, influential thousands of owners of the State banks 
 were very well pleased at his appointment. They could over- 
 look his profiting from cases of a revolting nature ; they could 
 pass by such an implied stinging denunciation as even Justice 
 Story felt impelled to give him in the Warren case. These 
 things did not affect them ; it can be said without exaggeration 
 (as the records so abundantly show), that virtually all of the 
 State bankers were building up their fortunes by consecutive 
 fraud, in one way or another. To them Taney appeared 
 solely in the capacity of a shrewd, wonderfully astute lawyer 
 and politician, and as a consistent opponent of the Bank of 
 the United States. 
 
 As Attorney-General of the United States, Taney became 
 
 17 V Peters, 717.
 
 UNDER CHIEF JUSTICE TANEY 37! 
 
 one of President Jackson's most trusted counselors. Taney 
 prodded and encouraged Jackson to remove the Government 
 funds from the Bank of the United States. When William 
 J. Duane, Secretary of the Treasury, refused to order those 
 funds removed, President Jackson, in 1833, appointed Taney 
 in Duane's place. Taney's appointment was never confirmed 
 by the Senate, but he proceeded energetically to deprive the 
 Bank of the United States of Government deposits. The 
 Senate then passed a resolution inquiring of Taney whether 
 he were not a stockholder in the Union Bank of Maryland, 
 which was one of the banks chosen by him for the depository 
 of public funds. He admitted that he was, but asserted (and 
 with truth) that he had obtained the stock before he had 
 selected that bank as a depository of public funds. 18 
 
 Taney as Secretary of the Treasury. 
 
 At that time, and for a considerable period later, the adminis- 
 tration of the public lands was under the jurisdiction of the 
 Treasury Department. Neither Secretary of the Treasury 
 Taney, nor his successor, Levi S. Woodbury (who in 1845 
 became an Associate Justice of the Supreme Court of the 
 United States), interposed any serious obstacle to the great 
 continuing frauds in the private acquisition of the public 
 lands. In fact, those frauds assumed greater proportions un- 
 der their administration than had previously been known. 
 Personally honest, President Jackson was, however, pliable to 
 the advice, and complaisant to the schemes, of those whom 
 he considered his political and personal friends. Surrounded 
 by an adroit, avaricious and unscrupulous ring of politicians, 
 both in and out of Congress and in his cabinet, he was used 
 and deceived. 
 
 In his fight to abolish the Bank of the United States, Jack- 
 
 18 See, Senate Docs., First Session, Twenty-Third Congress, Vol. 
 Ill, Doc. No. 238.
 
 372 HISTORY OF THE SUPREME COURT 
 
 son knew precisely what his aims were, and suffered no one 
 to cross or frustrate his plans. But the very importance of 
 that conflict subordinated other matters to a secondary place 
 in his mind; his aggressiveness was concentrated upon that 
 one object, so that it was easy for the schemers, knowing 
 that fact, to proceed under shelter of it. What Jackson con- 
 sidered as routine details of administrative functions he en- 
 trusted to the heads of departments. Always having access to 
 him, they could influence him by their ready explanations, 
 their insinuating suggestions, or their importunities artfully dis- 
 guised under cover of official zeal. When serious . charges 
 were made that great predatory schemes were being consum- 
 mated, they could even produce documents and reports so 
 skillfully put together as to make the case appear not only 
 favorable to themselves but as a conspiracy of political op- 
 ponents to discredit him and them. And it was a character- 
 istic of Jackson's nature that no matter how true charges 
 were, he would loyally stand by those who supported him, as 
 much from disposition as from political expediency in not car- 
 ing to give political capital to his enemies, and reflect upon his 
 own administration by the reprimand or discharge of his fore- 
 most adherents. 
 
 The Activity of the Land Appropriators. 
 
 That members of his Cabinet were clandestinely in virtual 
 or tacit collusion with the cliques of land speculators is clear 
 from the documents. Neither Taney nor Woodbury were 
 suspected of sharing in the proceeds, or of the vulgar bus- 
 iness of taking bribes. Cass had benefited from land spec- 
 ulations, 19 and, as we have seen, was not above accepting large 
 
 19 It appears by Cass' letter, of November 13, 1818, to the Register 
 of the Land Office at Detroit, that he, by means of sundry conveyances, 
 had become possessed, at about the time he was Governor of Michigan 
 Territory, of several valuable tracts of land in, and near, Detroit. 
 One of them was derived from an old French claim. In another case,
 
 UNDER CHIEF JUSTICE TANEY 373 
 
 sums of money for services not stated. The connivance and 
 collusion of high officials usually took subtle although often 
 easily traceable forms. For instance, Edward Livingston 
 had been counsel for claimants of certain alleged Spanish 
 grants ; and he, himself, was pecuniarily interested, as we shall 
 describe later, in the great fraudulent Bastrop claim, cover- 
 ing twelve leagues square or 1,016,264 arpents of land in 
 Louisiana. As Secretary of State of the United States, in 
 1832, Livingston made a long report (which appears on page 
 495, Vol. VI, "American State Papers: Public Lands"), 
 strongly urging the confirmation of those claims. 
 
 The personal friendships of eminent officials, as well as 
 those of their families, were also delicately worked upon, and 
 very often indelicately ; it was not uncommon for lobbyists, 
 contractors, and capitalists having some favor to seek, to give 
 expensive presents to the wives of officials. Social affiliations 
 were ingeniously used, and even more dexterously political 
 ambition and capitalist connections. The capitalists promoting 
 banking, land, trading and other schemes and needing special 
 laws or official favor, were either in politics themselves, or 
 their retainers were ; these capitalists, too, were those who 
 contributed heavily to the campaign funds of the political 
 parties. With their support one could go far in high office; 
 lacking it, the prospect of advancement either to political or 
 judicial office was negligible. Not less an incentive was the 
 sagacious desire on the part of the official for future security, 
 if, or when, he returned to private life. 
 
 Most of the ranking officials were lawyers. By serving 
 the interests of corporations and individual capitalists, they 
 were insuring for themselves the certainty of a large and lucra- 
 tive practice after they had left office. Had either Taney or 
 Woodbury been opposed by the powerful land interests, fill- 
 
 a claim was confirmed to Cass, although but a slight part of the pur- 
 chase price had been paid to the U. S. Government. " American State 
 Papers: Public Lands," Vol. V: 107. (Doc. No. 598.)
 
 374 HISTORY OF THE SUPREME COURT 
 
 ing every channel of influence at Washington, they would not 
 have been members of the Cabinet ; and had they antagonized 
 those and other interests, they would have been excluded from 
 confirmation to the Supreme Court of the United States, 
 which was called upon continuously to decide questions and 
 cases affecting the ownership of many millions of acres of 
 land. 
 
 Imaginative writers, it is too true, have sought to explain the 
 appointments of Supreme Court Justices as inspired by various 
 exalting motives such as reward for individual character, learn- 
 ing and patriotic services. But this explanation is vague and 
 fallacious. Economic considerations were the ruling factor. 
 
 Of the reasons for the support of Taney by the slave-own- 
 ing and State bank interests, sufficient details have been 
 given. It is necessary now to give an adequate account of the 
 reasons for the favor of the third division of the capitalist 
 class then controlling the Government the land interests. 
 In the process of presenting these facts there will automatic- 
 ally be made clear three other factors indispensable to the 
 full understanding of this narrative. The great further de- 
 velopment and aggrandizement of the newer landed class (as 
 distinguished from the old feudal proprietary landed class) 
 will be seen. Second, it will be perceived that the section of 
 the landed class now multiplying its ownership of land con- 
 sisted largely of the Southern slave owners, and that the ter- 
 ritory thus fraudulently acquired was precisely that in which 
 the slavery of negroes was considered profitable, and in 
 which it could be extended. Third, the facile manner in 
 which these huge areas of public domain were obtained under 
 Taney as well as under his predecessors and successors and 
 his subserviency to those speculators affords a direct and 
 striking explanation of certain decisions later rendered by 
 the Supreme Court under him as Chief Justice decisions 
 presenting a few spoliators with millions of acres more of 
 the public domain.
 
 UNDER CHIEF JUSTICE TANEY 375 
 
 Indian Tribes Dispossessed and Cheated. 
 
 By the year 1828, the Government still owned, it was es- 
 timated, about 801,000,000 acres in all. 20 Of this, a consider- 
 able area lay in the Southern States. The land most strongly 
 attracting the attention of the Southern slave owners and 
 politicians as well as Northern capitalists was that owned by 
 the Indian tribes, the Creeks, Choctaws and Cherokees. The 
 land occupied by these tribes in Mississippi, Arkansas and 
 adjacent regions was known to be the finest and most val- 
 uable soil for cotton raising in the United States. In its 
 original state, without any improvements, it could command 
 at once at least $10 an acre, heavily stocked as much of it was 
 with timber. 
 
 Every effort was now made to dispossess the Indian tribes. 
 Combinations of capitalists were formed to push action at 
 Washington. The tribes were beguiled into making treaties 
 ceding those lands; for insignificant sums paid in merchan- 
 dise or money or both, the lands were ceded to the Govern- 
 ment. Nominally, the tribes were fairly provided for; quite 
 true, they received only a few cents an acre, but in exchange 
 for their collective cession, each head of an Indian family 
 was to get a section of land and each child a certain amount. 
 We shall see later how the speculative combinations fraud- 
 ulently induced the Indians to sign away these claims. The 
 Government announced its intention of auctioning all of these 
 ceded lands at 'the minimum rate of $1.25 an acre. This, too, 
 looked fair; apparently the poor settler, with his slight re- 
 sources, could get his farm. 
 
 But what actually happened was very different. Nearly all 
 of the Registers and Receivers of the various land offices 
 were not only in collusion with the speculative combinations, 
 but were secretly interested in the profits. An astonishingly 
 
 20 "American State Papers: Public Lands," Vol. V: 447. (Doc. 
 No. 639.)
 
 376 HISTORY OF THE SUPREME COURT 
 
 large number of the Receivers embezzled public funds which 
 they or their capitalist associates used in the land operations. 21 
 At the different local land offices fraudulent auctioning was 
 carried on unblushingly. Sections of land were entered on 
 the books as sold, when such was not the case; the object 
 was to prevent actual settlers from buying choice lands from 
 the Government, and to allow the speculators to monopolize 
 them, so that the settlers would have to buy at exorbitant 
 prices from the speculators. Often the very Registers and 
 Receivers making the most public professions of opposition 
 to the combinations were the very officials, it turned out, in- 
 terested in their schemes and profits. 
 
 Capitalist Combinations in Operation. 
 
 Of one of such combinations the Register and Receiver of 
 the land office at St. Stephens, Alabama, reported in 1827, 
 to the Commissioner of the General Land Office: ". . . 
 Its extent, in point of numbers, influence and capital, puts it 
 beyond the ordinary control of the superintendents [Govern- 
 ment officers at sales]. . . . By the exertion of a few 
 speculating gentlemen, a coalition was formed with all men 
 of tolerable capital, and who were disposed to purchase land. 
 Each deposited a given sum, and became pledged to act in 
 concert. And, in this manner, competition was, in a consid- 
 erable degree, silenced. . . ." zz 
 
 With a fine display of virtue, Colonel George W. Martin, 
 Government locating agent in the Choctaw lands, wrote to 
 Cass, Secretary of War, December 6, 1833, that many ground- 
 less claims " were presented at my office with much address, 
 and urged on me with great earnestness, by a gentleman (much 
 honored by the citizens of this State) and who ever took oc- 
 
 21 See detailed list later in this chapter. 
 
 22 " American State Papers : Public Lands," Vol. V : 376. (" Plan to 
 Prevent Fraudulent Combinations," etc.)
 
 UNDER CHIEF JUSTICE TANEY 377 
 
 casion to admonish me that, should his claims be rejected, 
 they would be presented to a higher tribunal ; leaving me to 
 infer that he would bring all such before Congress, or perhaps 
 first the war department: should they fail at the department, 
 thence to Congress, etc. Should this effort at fraud be per- 
 severed in, it is possible that it may be effectual at Washing- 
 ton, procuring there what could not be allowed here. Should 
 it be so, I have one consolation my skirts are clear." 23 
 
 Always it was the same recurring note in these communi- 
 cations the speculators boasting that were they baffled on 
 the spot, they would succeed at Washington. 
 
 But Martin's boasts of his being clear of misconduct did 
 not correspond with what U. S. Commissioner G. C. Wool- 
 ridge reported of him, that he had been guilty of " outrageous 
 acts " in allowing the speculators to monopolize the sale. 24 
 Nor was his statement sustained by a U. S. Senate Commit- 
 tee, in the investigations of which numerous witnesses testi- 
 fied that lands had been located for Indians, as heads of 
 families, when in fact those particular Indians had no 
 families; and that the number of fraudulent locations in the 
 Creek, Choctaw and Chickasaw reservations was enormous, 
 The witnesses averred that the proceedings of the locating 
 agents were thoroughly corrupt. 25 
 
 Thus the process of the capitalist combinations in acquir- 
 ing the land was twofold and coordinated. The land ceded 
 by the Indians was fraudulently bought in great areas at auc- 
 tion, and the land located for Indians in exchange for that 
 ceded by them, was even more flagrantly secured. 
 
 The principal and largest of the combinations was the 
 Chochuma Land Company, headed by such potent Southern 
 politicians and capitalists as Robert J. Walker, Thomas G. 
 Ellis, Wiley Davis, Malcolm Gilchrist, William Gwin, Gen- 
 
 23/feiW., Vol. VII: 5. (Doc. No. 1230.) 
 
 -*Ibid., Doc. No. 1264. 
 
 25 See, Ibid., 733-746, etc. (Doc. No. 1335.)
 
 378 HISTORY OF THE SUPREME COURT 
 
 eral P. C. Chambliss and associates. 26 The ramifications of 
 this company extended into Congress, the Cabinet, and the 
 courts. Demanding from four to five dollars an acre from 
 actual intending settlers, the land officials sold to this com- 
 pany, or to its dummies, whatever tracts it wanted for a trifle 
 more than $1.25 an acre. It was testified that Samuel Gwin, 
 Register of the land office at Mount Salus, Mississippi, 
 boasted when a certain purchase* was made by agents of the 
 company, " That land will bring us ten dollars an acre." 2T 
 Urged to join the company, Colonel Greenwood Laflore 
 spurned the offer at least, so he testified. " I refused to 
 do so, and on the same day Gilchrist (I think), . . . ran 
 some of the land I wanted to nine dollars an acre. When the 
 overture was made to me in the course of conversation I said 
 I considered them, the speculators, as no better than swin- 
 dlers." -* 
 
 Complaining to Congress that the local land office officials 
 favored the speculators, various citizens of Mississippi memo- 
 rialized : 
 
 ". . . Thus were your petitioners thrown into the lion 
 jaws of the aristocratic moneyed speculators . . . and 
 compelled to compete with those lordly mercenaries who in- 
 vest the land offices. . . . Some of your petitioners, and 
 many other settlers on the public lands, were prevented by 
 the known decision of the officers [land register and re- 
 ceiver] which was posted on the door of the land office, from 
 proving up their claims. . . ." The petitioners further 
 remonstrated that by various false promises and inducements, 
 other settlers had been prevented by the company from prov- 
 ing their claims. Thus, " the settlers were deprived of their 
 labor, and their families turned out of doors," without any 
 remuneration, or were compelled to take what the company 
 
 20 See, Docs. No. 1254, No. 1263, and No. 1264, " American State 
 Papers : Public Lands," Vol. VII. 
 27 " Am. State Papers : Public Lands," Vol. VII : 284. 
 **Ibid., 474.
 
 UNDER CHIEF JUSTICE TANEY 3/9 
 
 chose- to give. " Your petitioners are unwilling to incur the 
 expense of a long, expensive and tedious lawsuit by resort- 
 ing to the judicial tribunals of the country for a redress of 
 their grievances," etc., and therefore looked to Congress for 
 relief. 20 
 
 Methods of Despoiling the Indians. 
 
 Systematically debauched with whisky and swindled, the 
 Indians soon found their lands gone. " Many of them," 
 wrote Colonel John Milton to the War Department from 
 Columbus, Mississippi, on July 15, 1833, referring to the In- 
 dians, " are almost starved and suffer immensely for the 
 things necessary to the support of life and are sinking in 
 moral degradation. They have been much corrupted by white 
 men who live among them, who induce them to sell to as 
 many different individuals as they can and then cheat them 
 out of the proceeds. . . ." 30 Luther Blake wrote to the 
 War Department, from Fort Mitchell, Alabama, on Septem- 
 ber n, 1833, ". . . Many, from motives of speculation, 
 have bought Indian reserves fraudulently in this way take 
 their bonds for trifles, pay them ten or twenty dollars in 
 something they do not want, and take their receipts for five 
 times the amount. . . ." 31 By special request of Pres- 
 ident Jackson, J. H. Howard of Pole-Cat Springs, Creek Na- 
 tion, sent a report, February i, 1834, to Jackson. ". . . 
 From my own observation," he wrote, " I am induced to be- 
 lieve that a number of reservations have been paid for at some 
 nominal price and the principal consideration has been whisky 
 and homespun. . . ." 32 
 
 That these reports did not exaggerate, and at the same 
 time were ineffectual, is evident from a memorial, signed by 
 
 2S Ibid., 609. (Doc. No. 1306.) 
 
 30 Senate Docs., First Session, etc., 1835, Vol. VI, Doc. No. 425: 81. 
 
 31 Ibid., 86. 
 
 32 Ibid., 104. The above are merely a few extracts from this volumi- 
 nous document.
 
 380 HISTORY OF THE SUPREME COURT 
 
 several hundred citizens of Mississippi and adjacent States, 
 and sent to Congress in 1836. After recounting the terms of 
 the Choctaw Treaty, that each Choctaw proving himself the 
 head of a family was entitled to one section of land, and 
 Choctaw children to one-half and one-quarter sections, ac- 
 cording to their ages, the petition read on: 
 
 " A few active, enterprising and intelligent speculators, 
 discovering the opening which was thus presented for the 
 acquisition of large fortunes, have, by agents beyond the 
 Mississippi, and at home, produced documents purporting to 
 be powers of attorney from Indians to select lands, and trans- 
 fer their rights to lands selected and supported by e.v parte 
 testimony on the above-named points, suggested in the Pres- 
 ident's order and the instructions from the Department of 
 the Treasury and of War, and by those papers have caused 
 to be set apart for them the choicest lands in the country; 
 sweeping over large districts inhabited and cultivated by per- 
 sons who settled the public lands on the faith of the policy 
 of the Government . . . that their homes would be given 
 them at a reasonable price, unexposed to the heartless grasp 
 of the voracious speculator. 
 
 " To the alarm of your memoralists, these claims have now 
 amounted, as they are informed, to upward of three thou- 
 sand, which, at an average of 1,280 acres each, amount to 
 the enormous aggregate of three millions eight hundred and 
 forty thousand acres; and the said speculators, availing 
 themselves of the panic which these operations have pro- 
 duced, are now selling out, receiving a portion of the price 
 in ready money, which they refuse to become bound to re- 
 fund, in the event that the title is not confirmed, thus secur- 
 ing to themselves large fortunes, without having advanced 
 to the Indians one cent so far as your memorialists are in- 
 formed and believe. 
 
 " Your memorialists are persuaded that not more than one 
 out of twenty claims are founded in justice and equity, and
 
 UNDER CHIEF JUSTICE TANEY 381 
 
 if scrutinized by a tribunal sitting in the vicinity of the land 
 offices, with competent powers to reject or confirm, and to 
 compel the attendance of witnesses, those honestly claiming 
 would be secure in their rights, and a most stupendous system 
 of fraud on the Government would be exposed and defeated; 
 the settlers relieved from the embarrassments thus brought 
 on them ; and Congress saved from the teasing and vexatious 
 applications of false claims for a series of years to come." 33 
 
 Such remonstrances brought neither redress to the Indians, 
 nor relief to the settlers; they were pigeonholed in the ar- 
 chives of Congress, and no further attention was given them. 
 
 The Harvest of Fraud. 
 
 Conditions in Arkansas and Louisiana were, it seems, fully 
 as scandalous. A treaty made in May, 1828, with the Chero- 
 kee Indians in Arkansas, provided that the members of this 
 tribe were to get allotments of land in other regions in ex- 
 change for the domain ceded by them, and that white settlers 
 whose lands were in the new reservation were to receive lands 
 in other parts for lands relinquished by them. 
 
 Writing to the land office registers and receivers at Bates- 
 ville and Little Rock, Arkansas, on September 26, and Oc- 
 tober 17, 1828, Commissioner Graham of the General Land 
 Office enclosed several communications he had received from 
 " respectable gentlemen " in Arkansas. One correspondent 
 complained that " pieces of paper, with- twenty-one years 
 marked on them, are placed in the shoes of children, and wit- 
 nesses innumerable can be found who will swear that the 
 said persons are over the age of twenty-one years, and en- 
 titled to a donation." The speculators, he wrote, were reap- 
 ing a rich harvest. 
 
 The other correspondent detailed how whites who had 
 
 33 "American State Papers: Public Lands," Vol. VIII: 431. (Doc. 
 No. 1414.)
 
 382 HISTORY OF THE SUPREME COURT 
 
 never relinquished any land, and had never had any to re- 
 linquish, thronged forward to make claims. Not more than 
 three hundred claims, he said, could have originated under the 
 law, yet not less than 1,500, and probably 2,000, claims would 
 be put forward for confirmation. " The Government, then, 
 by its vigilance must save itself from being swindled out of 
 many hundred sections of choice lands. ; . . It has been 
 the practice to take the evidence in the country before jus- 
 tices of the peace. A written statement is drawn, ' covering 
 the case ' and the willing witness gulps it down. Minors, 
 Indians, transient persons, have had their claims most sub- 
 stantially made out on paper. It is sickening to. think of the 
 perjuries that have disgraced the country," etc., etc. 34 
 
 V. M. Garesche, appointed as Treasury agent to investigate 
 the local land offices in Arkansas, Louisiana and elsewhere, 
 made investigations extending through several years of ar- 
 duous work and traveling. Public " clamor " over the land 
 frauds was great and incessant; and it was not expected of 
 Garesche that he would add to the political difficulties of the 
 Jackson administration by developing too many damaging 
 facts. Although, indeed, he softened matters as much as 
 possible, yet, on the whole, he seems to have been as con- 
 scientious as could be looked for under the circumstances. 
 He reported on September 19, 1833, that the fraudulent New 
 Madrid claims had all been located, and as for the claims in 
 Lovely county, " these last, indeed, have been a great curse 
 to the country, and have fraudulently wrested from the United 
 States vast tracts of land. . . ." 35 
 
 Leading the band of Arkansas looters was the notorious 
 John J. Bowie; these particular frauds were consummated 
 during the period when Taney was Attorney-General of the 
 United States, and at the time he was appointed Secretary 
 of the Treasury. On August 14, 1835, John K. Taylor sent 
 
 34 " Am. State Papers : Public Lands," Vol. V : 628. 
 as Ibid., Vol. VII: 183. (Doc. No. 1252.)
 
 UNDER CHIEF JUSTICE TANEY 383 
 
 an explicit account from Little Rock to President Jackson ; 
 evidently he had no faith in anyone but Jackson, for he 
 wrote : 
 
 " I have again sat down to trouble you with some accounts 
 from Arkansas, and would not do so, but know no other 
 source to apply to for redress of wrongs done to the govern- 
 ment under which we live. The Superior Court of the Terri- 
 tory adjourned its July session on the loth instant. The 
 grand jury adjourned on the 8th instant, nine o'clock p. M., 
 which body brought to light some of the most glaring frauds 
 ever practised upon this government, the Bowie and Yazoo 
 claims not excepted. 
 
 " Sir, it was clear to the mind of every juror, that men had 
 gone to the different land offices, and proven up Lovely dona- 
 tion claims, and for which patents have in many instances 
 issued, when, in fact, such individuals never saw the country 
 ceded to the Indians. The jury above alluded to have, from 
 proof in their deliberations, found some twenty-five or thirty 
 bills of indictment against persons for perjury or subornation 
 of perjury, one of which individuals we caught and had upon 
 trial, and his only means of acquittal was to claim the statute 
 of limitations . . . and many others will get off on the 
 same grounds. The next grand jury, I have no doubt, will 
 have evidence sufficient before them to find bills against many 
 persons who have gone to the different land offices, and 
 changed their names and proven up claims. 
 
 " It has also been lately discovered, that some of the specu- 
 lators have had influence enough over some of the land officers 
 to have the plats marked as if entries had been made, then let 
 them have time to go and examine before the land was cer- 
 tainly entered ; which course of conduct is calculated to de- 
 ceive those who might wish to enter. To give some knowl- 
 edge of the extent of the frauds committed, at the cession of 
 Lovely and Miller counties to the Indians, I have been in- 
 formed, that at the extent, not more than five hundred per-
 
 384 HISTORY OF THE SUPREME COURT 
 
 sons were entitled to claims, and also understand that eight 
 or nine hundred have proven up. I do not know what course 
 government will take (if any), but if there should be a board 
 of three or five vigilant persons, sent with authority to the 
 border of each of these counties with power sufficient to 
 compel persons and papers to come before them, every man 
 could be identified who lived there at the cession." 36 
 
 As to the extent of the land frauds in Louisiana, there 
 seems to have been a conflict of statements. Benjamin F. 
 Linton, United States Attorney for western Louisiana, re- 
 ported to Jackson, August 27, 1835, that " the most shameful 
 frauds, impositions and perjuries have been committed in 
 Louisiana " ; in an elaborate report he detailed them. 37 But 
 Garesche contended that Linton greatly exaggerated, inti- 
 mating that he did this to divert attention from his own 
 speculations. Nevertheless, Garesche's own report was a sig- 
 nificant enough picture; in his investigations, it was difficult, 
 Garesche complained, to get anyone to testify. " Is it sur- 
 prising," he wrote to the Secretary of the Treasury, " when 
 you consider that those engaged in this business belong to 
 
 36 Ibid., Vol. VIII: 404. (Doc. No. 1401.) See, also, communica- 
 tion from Grand Jury, July Term, 1835, to the Secretary of the Treas- 
 ury, stating that " a large proportion, if not a majority of the claims, 
 have been proved by the basest fraud and perjury." Ibid., 405. 
 
 37 Ibid., Doc. No. 1421. Of one notorious land grabber Linton 
 pointedly wrote : " He could be seen followed to and from the land 
 office by crowds of free negroes, Indians, and Spaniards, and the very 
 lowest dregs of society, in the counties of Opelousas and Rapides, with 
 their affidavits already prepared by himself, and sworn to by them, 
 before some justice of the peace in some remote part of the country. 
 These claims, to an immense extent, are presented and allowed, and 
 upon what evidence ? Simply upon the evidence of the parties them- 
 selves who desire to make the entry. And would it be believed, that 
 the lands where these quarter sections purported to be located, from 
 the affidavit of the applicants, had never been surveyed by the govern- 
 ment, nor any competent officer thereof, nor approved nor returned 
 surveyed? I further state that there was not even a private survey 
 made. These facts I know ; I have been in the office when the entries 
 were made, and have examined the evidence, which was precisely what 
 I have stated above."
 
 UNDER CHIEF JUSTICE TANEY 385 
 
 every class of society from the member of the Legislature 
 (if I am informed correctly) down to the quarter-quarter- 
 section settler ! " 
 
 Garesche further reported that a large company was formed 
 in New York for the purpose of getting hold of great areas 
 of Government land, " and have an agent who is continually 
 scouring the country. A second agent from the same quarter 
 has lately arrived, with power to draw any amount. The con- 
 stant conversation everywhere is about the large fortunes that 
 have been realized by land speculations." 38 
 
 These great and uninterrupted frauds produced an ugly im- 
 pression among both the middle and the working classes. In 
 1833, a memorial of a " Portion of the Laboring Classes " of 
 New York City, demanded that, among other measures, a 
 settled policy should be put in force that the whole of the 
 remaining public lands should forever continue to be the 
 public property of the nation. 39 This petition, of course, passed 
 unheeded. To allay and wear out public feeling, the cus- 
 tomary device of an investigating committee was decided 
 upon, particularly by the Senate, the anti-Jackson element in 
 which thus saw an opportunity of doing damage to his ad- 
 ministration. But so long as they were allowed to hold the 
 fruits of their frauds, and no criminal proceedings were 
 brought, the speculators did not seriously mind ineffective ex- 
 posures, however true and however strong. 
 
 Millions of Acres of Cotton Lands to a Few. 
 
 How rapidly the public lands were being alienated into the 
 hands of a few was shown by the report, on June 15, 1836, 
 of a Select Senate Committee. It is estimated that during 
 
 38 Doc. No. 168, Twenty-fourth Congress, Second Session, Vol. Ill : 
 425. Also, Doc. No. 213, Ibid. 
 
 39 Ex. Docs., First Session, Twenty-Third Congress, 1834, Doc. No. 
 104.
 
 386 HISTORY OF THE SUPREME COURT 
 
 the single year the sales had totalled nearly 13,000,000 acres, 
 of which 8,000,000 acres " have probably been made for specu- 
 lation, and not for settlement." 
 
 The report continued to say that " companies are forming 
 in all directions to monopolize the ownership of the public 
 domain," and that " a total and complete monopoly of the 
 public lands by speculators is now contemplated." The re- 
 port went on : 
 
 " The authentic records of the land office demonstrate that 
 the speculator is the monopolist of nearly all the profit of this 
 immoral, unjust, and oppressive system ; a system which is a 
 stain upon the honor of a great nation. The poor but in- 
 dustrious occupant generally attends the land sales, having 
 no more money than a sum sufficient to buy the land he oc- 
 cupies at the minimum price; a speculator bids a few cents 
 over him, and becomes the purchaser of the land and the 
 owner of an improved farm, paying not one cent for the 
 value of the improvements. In other cases, where the set- 
 tler has collected something more than the money sufficient 
 to pay for the land he occupies, at the minimum price, and 
 bids that sum, the speculator, by some secret agent employed 
 by him, overbids the settler, the land is struck off to this 
 agent, and the settler leaves the sale in disgust, to mourn over 
 the injustice of the government of the Union, and to prepare 
 for the removal of himself and family frcm the little farm 
 which he has improved and expected to hrve purchased from 
 a paternal government. After the departure of the settler, 
 the tract is forfeited for non-payment, and the speculator 
 purchases in his own name the forfeited tract, probably at 
 the minimum price per acre. 
 
 " The scenes ensuing at many of our land sales are scenes 
 of the deepest distress and misery. They are scenes in which 
 many families are driven forth from their homes to seek 
 some other spot in the wilderness, where keen-eyed avarice 
 and sordid monopoly may not overtake them. But another
 
 UNDER CHIEF JUSTICE TANEY 387 
 
 land sale comes on, the same scene is repeated, till all hope 
 is extinguished, and nothing is left to the settler but despair 
 and ruin. Yet these scenes of fraud and cruelty are of con- 
 stant occurrence, permitted and encouraged by the present sys- 
 tem of the sales of the public lands at public auction. Your 
 committee have said that the speculator, and not the govern- 
 ment, reaps nearly all the profits of these inglorious transac- 
 tions, and this is proved by the records of the Land Office. 
 By the documents of the Land Office it appears, that taking 
 all the sales of the public lands, from the adoption of the 
 cash system, in July, 1820, down to the present period, the 
 average price received by the government upon these sales, 
 has been less than six cents an acre over the minimum price. 
 
 " 40 
 
 The committee proposed the sale and entry of. all of the 
 public lands in forty-acre lots a whimsical suggestion to make 
 to a Congress a large number of the members of which were in- 
 terested in the land companies. As Garesche, in detailing the 
 frauds, alleged or real, in Louisiana, wrote to Secretary of the 
 Treasury Levi Woodbury, from Opelousas, Louisiana, on June 
 9, 1836: ". . . It is folly to talk of the poor squatter 
 the laws have never been made for him ; he gets but a very 
 small fraction of the whole ; all the benefits of the speculation 
 fall into the hands of the intriguer ; it is for him that the bill 
 is introduced ; it is for him alone that the voice of our orators 
 is heard on the floor of Congress. . . ." 41 
 
 A Senate Investigating Committee aptly reported, in 1835, 
 that " many of the speculators are persons filling high 
 offices in the States in which the public lands purchased by 
 them are situated, and others possessing wealth and influ- 
 ence, all of whom naturally unite to render this investigation 
 odious among the people. . . ." 
 
 The committee stated that in some instances the commis- 
 
 40 "American State Papers: Public Lands," Vol. VIII, Doc. No. 1541. 
 id., 965. (Doc. No. 1585.)
 
 388 HISTORY OF THE SUPREME COURT 
 
 *v 
 
 sioners were threatened with personal violence. An attempt, 
 it reported, was actually made upon the life of one Com- 
 missioner, but the assailant was killed. It said that all who 
 testified were denounced and put in fear by the powerful 
 combinations of speculators. The committee further reported 
 that " the first step necessary, to the success of every scheme 
 of speculation in the public lands, is to corrupt the land 
 officers, by a secret understanding between the parties, that 
 they are to receive a certain proportion of the profits." Great 
 enormities, within three or four years, had occurred, the 
 Committee stated, yet " no officer has been removed for these 
 causes ; but the most guilty among them have been reappointed 
 from time to time, until they have become bold and fearless 
 in their course, well knowing how to retain their places, and 
 speculate .on the public property. . . ." 42 
 
 In this report, true as the facts were, an attempt was made 
 to create partisan feeling against Jackson. But the really re- 
 sponsible were the men surrounding Jackson Taney, Wood- 
 bury, Cass and others, who, after all, only represented the 
 interests of the class supporting them. 
 
 The Long List of Defaulting Officials. 
 
 One of the most striking results of the various successive 
 investigations was the revelation of the astonishingly large 
 number of defaulting Receivers of public money at the dif- 
 ferent land offices. These investigations revealed that far 
 from being a solitary practice, it was common on the part of 
 Registers and Receivers to be corrupt accomplices and part- 
 ners of the land syndicates, and corrupt in the embezzlement 
 of public funds. These funds were used for the private and 
 fraudulent purchase of public lands, which lands were then 
 transferred and conveyed over and over again to " safe, in- 
 nocent purchasers." All of these Registers and Receivers 
 
 42 "American State Papers: Public Lands," Vol. VII: 732-734. 
 (Doc. No. 1335.)
 
 UNDER CHIEF JUSTICE TANEY 389 
 
 were seasoned politicians themselves, and procured and held 
 their offices by indorsement of Governors, and members of 
 Congress and of the Cabinet. A House document, of January 
 13, 1835, covering a period of eight years, gives a long list of 
 these defaulters. 
 
 General Israel T. Canby, Receiver at Crawfordsville, In- 
 diana, defaulted in the sum of $46,433.53. General John 
 Brahan, Receiver at Huntsville, Alabama, defaulted to the 
 amount of $74,823.33. As to Brahan's defalcation, the House 
 Committee on Public Lands handed in a strange report, say- 
 ing that he had used the money to buy lands in order " to 
 ward off speculators." Benjamin Stephenson, Receiver of 
 the Land Office at Edwardsville, 111., embezzled $255,354.07. 
 William L. E. Ewing, Register at Vandalia, 111., could not 
 account for the lack of $17,542, and George F. Strother, Re- 
 ceiver at St. Louis, was called upon to explain the disap- 
 pearance of $32,830.55. William Garrard, Receiver at Opel- 
 ousas, Louisiana, defaulted in the sum of $27,230.57, and 
 Luke Lecassier, at the same land office, was short $12,893.95 
 in his accounts. Samuel Smith, Receiver at St. Stephens, 
 Alabama, had to face an exposure of having embezzled $74,- 
 1 88.1 1. John Taylor, Receiver at Cahawba, Alabama, em- 
 bezzled $17,463.24, and William Taylor, at the same place, 
 $40,570.75. In the account of Andrew T. Perry, Receiver at 
 Sparta, Alabama, a shortage of $29,755.57, was found. Ap- 
 pointed Receiver, at Columbus, Miss., in 1836, in the place 
 of W. P. Harris, a defaulter for $109,178.08, Gordon D. 
 Boyd himself defaulted in the sum of $59,622.60 in a single 
 year. Among his assets was " a principality," that only a 
 short time before had been a part of the public domain. 43 
 These are a few examples of the whole number. 44 
 
 43 Garesche pleaded that leniency be shown Boyd. In his report to 
 the Secretary of the Treasury, June 14, 1837, Garesche recommended 
 his being retained, cynically saying that " another Receiver would prob- 
 ably follow in the footsteps of the two." 
 
 44 See, " American State Papers : Public Lands," Vol. VII : 559-564.
 
 390 HISTORY OF THE SUPREME COURT 
 
 A House Committee majority report, submitted on Febru- 
 ary 27, 1839, itemized a list of sixty-six defaulting Receivers, 
 prior to 1837, and nine in 1838-39. This Committee was a 
 select one of nine members; its chairman was James Harlan, 
 of Kentucky. From the schedule reported by this committee, 
 it appears that the whole amount due from land receivers who 
 were on the list of defaulters was (up to 1839) $1,073,837.41, 
 of which the sum of $825,678.28 had been defaulted since the 
 year i829. 45 And it also appears from the official correspond- 
 ence incorporated in this report that both Taney and Wood- 
 bury, although formally warning the receivers, took no puni- 
 tive action. For example, Nathaniel West, Jr., appointed by 
 Secretary Woodbury, on June 26, 1836, to examine the land 
 office at Fort Wayne, Indiana, reported in detail that Colonel 
 John Spencer, Receiver at that place, had been defrauding 
 the Government. William Hendricks, a powerful Democratic 
 leader, in Indiana, wrote to Woodbury, on August 31, 1836, 
 urging him to retain Spencer in office. Woodbury responded, 
 September 7, 1836, by saying that, " I am happy to inform you 
 that Mr. Spencer's explanations have been such that he will 
 probably continue in office." 
 
 Only a fraction of the defaulted sums was recovered by the 
 Government. 
 
 These vast fraudulent land operations not only produced 
 tens of millions of dollars in profit to the syndicates, but out 
 of those acquisitions were created great estates. The cotton 
 regions were extended, the slave owning power was enlarged, 
 and the wealth and dominance of the Southern plantation 
 owners, bankers and of other capitalists were tremendously 
 augmented. This was the state of affairs when Taney took 
 his seat as Chief Justice of the Supreme Court, in 1836. 
 
 (Doc. No. 1289.) Report of U. S. Comptroller Joseph Anderson. 
 See, also, Ibid., Doc. No. 1252, showing the speculations and the con- 
 nections of the land officers. Also, U. S. vs. Boyd et al., XV Peters, 
 187. 
 
 45 House Report No. 313, Part IV, Twenty-fifth Congress, Third 
 Session.
 
 CHAPTER X 
 
 THE SUPREME COURT UNDER CHIEF JUSTICE TANEY 
 (CONTINUED) 
 
 On the same day that the appointment of Taney as Chief 
 Justice, was confirmed by the Senate, March 15, 1836, that of 
 Philip P. Barbour, as Associate Justice to succeed Justice 
 Duvall, was also confirmed. Barbour by views and interests 
 was associated with the landed class. His father, Thomas 
 Barbour, had inherited considerable wealth, and had been a 
 member of the old House of Burgesses of Virginia. On the 
 maternal side, Philip P. Barbour was related to Judge Ed- 
 mund Pendleton, whose operations as President of the Loyal 
 Company have been referred to in Chapter I and elsewhere. 
 Thomas Barbour, it is related, met with reverses, but seems to 
 have recouped himself by securing a landed estate in Ken- 
 tucky. 
 
 We have hitherto described how Charles Willing of Phila- 
 delphia obtained 32,000 acres of land in Kentucky, in 1784, 
 on certain treasury warrants. It appears that Thomas Bar- 
 bour by means of voiding that entry on the ground of its 
 being illegal, secured legal title to a large portion of that area 
 and that his possession was officially acknowledged. Then had 
 come Humphrey Marshall, Federalist United States Senator 
 from Kentucky, and a cousin of Chief Justice Marshall, with 
 interconnected claims of his own. He asserted that, previous 
 to Willing's entry, he had acquired title to 12,313 acres of the 
 land claimed by Willing. He freely admitted that his claim 
 rested upon an entry made by an intermediary, one Isaac 
 Holbert. Also he averred that he had subsequently acquired 
 
 391
 
 392 HISTORY OF THE SUPREME COURT 
 
 an interest in Barbour's patent. The dispute crystallized into 
 an action at-law between Willing's heirs, on the one part, 
 and Marshall and associates, on the other. The decision, by 
 Chief Justice Marshall, in the Supreme Court of the United 
 States, in 1831, went in favor of Senator Humphrey Mar- 
 shall, thus sustaining the Barbour patent. 1 
 
 Associate Justice Barbour had, as a student and lawyer, 
 been a close, diligent and conscientious reader of law, but it 
 was the medieval law, and the outgrowths of that species of 
 law (such as we have described), that he had imbibed. When 
 he became Associate Justice, he was fifty-three years old ; 
 he, like the other members of the Supreme Court, was unalter- 
 ably impregnated with his class creed. His views were soon 
 bodied forth in that famous dictum of his in an opinion of 
 the Supreme Court, written by him in 1837. The case in- 
 volved the constitutionality of a restrictive immigration act 
 passed by the New York Legislature. In holding that it 
 was constitutional, Justice Barbour declared, " We think it 
 as competent and as necessary for a State to provide precau- 
 tionary measures against the moral pestilence of paupers, vag- 
 abonds and possibly convicts, as it is to guard against physical 
 pestilence," etc. 2 But a power greater then the Supreme 
 Court made this dictum a dead letter. That power was the 
 capitalist class, the interests and development of which de- 
 manded a never-ending supply of surplus labor, so as to be 
 able to command the wage market on its own terms. 
 
 Packing the Supreme Court. 
 
 Before Jackson's election the Supreme Court of the United 
 States had been, as we have seen, pro Bank of the United 
 States. As fast as the old members of that court died or 
 
 1 Case of Lewis et al. vs. Marshall et al., V Peters, 470. The prin- 
 cipal point against Lewis was the Kentucky statute of limitations, 
 barring suits not brought within a certain period. 
 
 City of New York vs. Miln, XI Peters, 142.
 
 UNDER CHIEF JUSTICE TANEY 393 
 
 resigned, Jackson had appointed as their successors politicians 
 whose opposition to the Bank of the United States was as- 
 sured. Never had the fact that the Supreme Court was es- 
 sentially a political body been more frankly evident than dur- 
 ing the administrations of Jackson and Van Buren. The taunt 
 of Jackson's opponents that the Democrats were packing the 
 Supreme Court with pro-State-bank and pro-slavery men was 
 fully justified by the facts. 
 
 As the composition of the Supreme Court stood in 1836, five 
 of the seven judges were Jackson's appointees. Shortly after- 
 ward, on March 3, 1837, Congress passed an act increasing the 
 number of Supreme Court judges to nine ; this measure was ex- 
 pressly enacted to insure a majority on the Supreme Court 
 bench favorable to State banks and to negro slavery. So far as 
 the landed interests were concerned, no change was necessary ; 
 the Supreme Court appointees, after Marshall's death, fa- 
 vored the land speculators and appropriators fully as much 
 as during his tenure ; and it was easier for them to do so, 
 having the authority of Marshall's decisions as precedents. 
 The two new Associate Justices appointed in 1837 were John 
 Catron and John McKinley. Catron was fifty-one years old 
 at the date of his appointment, and McKinley fifty-seven. As 
 an attorney Catron was reputed to be one of the foremost 
 authorities in the country on land laws and judicial con- 
 structions of those laws. He had been State's Attorney in 
 Tennessee, a judge of the Superior Court of Tennessee from 
 1821 to 1830, Chief Justice of that court from 1830 to 1836. 
 McKinley's career was consecutively that of a politician in 
 Alabama, from which State he was elected to the National 
 House of Representatives and to the Senate. 
 
 How elastic was the thing called Constitutional law, how it 
 could be molded, as though by order, to suit the demands 
 and interests of the particular section of the ruling class then 
 in the ascendent, was now quickly demonstrated. 
 
 One of the banks that had been chartered by the Legislature
 
 394 HISTORY OF THE SUPREME COURT 
 
 of Kentucky was the Bank of the Commonwealth, with $3,000,- 
 ooo capital. After this bank had been in operation for some 
 time an action was brought to have its charter declared un- 
 constitutional. If such a decision were made, then perforce all 
 banks chartered by States would be illegal. It is probable 
 that this was one of the reasons instigating this suit. But 
 there seem to have been other reasons of a very different na- 
 ture. 
 
 Thus we read that in a speech in the Kentucky Legislature, 
 one of the members, Wickliffe, charged Guthrie, of the Bank 
 of the Commonwealth, " with belonging to a party who once 
 issued three million dollars [in bank notes] without a dollar 
 to redeem them with. And it is equally true," Wickliffe 
 further asserted, " that a portion of his party raised a pony 
 purse, and promised great lawyers fifty thousand dollars to 
 have their acts declared unconstitutional and void by the 
 Supreme Court, that they might be thereby released from 
 paying their debts to this Commonwealth's bank." 3 
 
 When the case was argued before Marshall, he and a ma- 
 jority of the Supreme Court were of the opinion that the 
 act of the Kentucky Legislature, in chartering the bank, was 
 unconstitutional and void. But the decision was deferred and 
 the case was reargued before Taney. And, as was expected 
 from the large majority of State Bank men now on the Su- 
 preme Court bench, a decision was rendered in 1837, that the 
 act incorporating the Bank of the Commonwealth was a con- 
 stitutional exercise of power and that the bank notes issued 
 were not bills of credit within the meaning of the Constitu- 
 tion. 4 Justice Story energetically dissented ; as one of the 
 " old guard " he was an opponent of State's rights. He him- 
 self had been instrumental in securing the chartering of banks 
 
 3 "A History of Banking In All The Leading Nations," etc. (1896), 
 Vol. 1 : 144. 
 
 4 Case of Briscoe vs. The Bank of the Commonwealth, XI Peters, 
 257-348. The court's opinion was written by Justice McLean.
 
 UNDER CHIEF JUSTICE TANEY 395 
 
 by the Massachusetts Legislature, of one of which banks he 
 had become president. His attitude was anomalous and 
 seemed to imply inconsistency as well as betoken rare disin- 
 terestedness in declaring against his own interests. But we 
 have seen how his bank fared well under the Bank of the 
 United States regime. 
 
 Wild- Cat Currency Constitutional. 
 
 This decision had its grim aspects. For years, long before 
 their charters were formally declared " constitutional," the 
 owners of the State banks had drenched the country with 
 " wild-cat " currency, based to a great extent upon worthless 
 security or no security at all. By 1819, the banks in New 
 York State alone, apart from those of other States had issued 
 $12,500,000; to redeem this fiat stuff the issuing banks had 
 only $2,000,000 in specie. A New York Senate Committee 
 reported, in 1819, that every artifice in the wit of man had 
 been devised to find ways of putting these bank notes in cir- 
 culation ; that when the merchant received this paper, he, in 
 turn, " saddled it upon the productive departments of labor." 
 " The great profits of the banks," reported a New York Sen- 
 ate Committe on banks and insurance, in 1834, " arise from 
 their issues. It is this privilege which enables them, in fact, 
 to coin money, to substitute their evidences of debt for a 
 metallic currency, and to loan more than their actual capitals. 
 A bank of $100,000 capital is permitted to loan $250,000; and 
 thus receive an interest on twice and a half the amount actu- 
 ally invested." 5 The committee stated that banks in the 
 State, outside of New York City, after paying all expenses 
 divided eleven per cent, among the stockholders in 1833, -and 
 had on hand as surplus capital sixteen per cent, on their cap- 
 ital. New York City banks, the committee reported, paid 
 
 5 Doc. No. 108 [New York Senate] Docs., 1834, Vol. II.
 
 396 HISTORY OF THE SUPREME COURT 
 
 larger dividends. This was an example of similar conditions 
 in all of the States. 
 
 The Workingmen's Party of 1829, in its resolution adopted 
 at Military Hall, New York City, on October 19, of that year, 
 denounced the bankers as " the greatest knaves, impostors 
 and paupers of the age," and further declared that as banking 
 was then conducted, the owners of the banks received annually 
 of the people of the State " not less than two million dollars 
 in their paper money (and it might as well be pewter money) 
 for which there is and can be, nothing provided for its re- 
 demption on demand. . . ." In the panic of 1837, not less 
 than eight hundred banks in the United States suspended 
 payment, refusing a single dollar to the Government whose 
 deposits of $30,000,000 they held, or to the people in general 
 who held $120,000,000 of their notes. 7 After the passing of 
 the panic the same old frauds continued. The decision of 
 1837, of the Supreme Court of the United States, says an au- 
 thority, " opened the door wide for abuses of banking by the 
 States." 8 Unquestionably it did, as the results fully proved. 
 
 Competition Declared Immutable. 
 
 So far as the State rights issue was involved, the Supreme 
 Court's policy under Taney, although exactly the reverse of 
 what it had been under Marshall, produced in one respect the 
 same result in effect. The Charles River Bridge Case was a 
 
 The founders of some of the largest fortunes of present times were 
 large stockholders in some of these banks, or were both stockholders 
 and officials. John Jacob Astor, for example, held stock in the Man- 
 hattan Bank, the Merchants' Bank, the Bank of America, the Me- 
 chanics' Bank and others. Jacob Lorillard was president of the 
 Mechanics' Bank, and the Goelet family were extensive stock owners 
 in the Chemical Bank (now the.. Chemical National Bank, one of the 
 richest banks in the United States). 
 
 7 " Abridgement of the Debates of Congress, from 1789 to 1856," 
 Vol. XIII: 426-427. 
 
 8 " A History of Banking In All The Leading Nations," etc., Vol. 
 I: 144-
 
 UNDER CHIEF JUSTICE TANEY 397 
 
 striking instance of this. The company owning this bridge 
 claimed that it held a vested, perpetual monopoly by reason of 
 various old empowering acts of the Massachusetts Legisla- 
 ture. An act had been recently passed, however, authorizing 
 the construction of the adjacent Warren bridge as a free 
 avenue. The owners of the Charles River bridge asserted 
 that the Legislature, in passing the new act, had impaired the 
 obligation of a contract. The State courts refused their pe- 
 tition for an injunction, and Chief Justice Taney sustained the 
 validity of the Warren bridge law. 9 
 
 This decision again effectually stamped into law the doc- 
 trine then proclaimed as immutable by aggressive capitalism, 
 and consequently by statesmen, universities, editorial sanc- 
 tums and legislative halls the doctrine that " competition is 
 the life of trade." A companion edict to Marshall's decision 
 in the Livingston steamboat monopoly case, the decision de- 
 molished the last stand of the old, archaic, feudal aristocracy 
 and gave the new industrial and transportation aristocracy 
 unlimited opportunities for competitive expansion and indi- 
 vidual and corporate development. No longer was " individ- 
 ual enterprise " to be shackled by obsolete laws ; the old prac- 
 tice of granting powers of monopoly to a favored few was 
 obliterated as a principle of jurisprudence. This decision 
 freshly demonstrated that the Supreme Court of the United 
 States continuously and accurately reflected, both in person- 
 nel and spirit, the needs and demands of the dominant sections 
 of the ruling class, and incarnated those requisites into con- 
 stitutional law. 
 
 In the consideration of private land claims no alteration 
 whatever was made by the reconstituted Supreme Court, fol- 
 lowing Marshall's death. There was no sectional controversy 
 over the spoliation of the national domain; in the engrossing 
 business of appropriating the public lands, men of power and 
 influence of all sections of the country were jointly concerned. 
 
 9 The full decision is set forth in XI Peters.
 
 398 HISTORY OF THE SUPREME COURT 
 
 With the question of slavery, the case was very different. The 
 issue was growing acute to a point generating the deepest and 
 most vindictive passions and inflaming the most rancorous 
 hatreds. It was a ticklish question for the Supreme Court of 
 the United States to pass upon conclusively ; and every art of 
 the juridical politicians on the bench was requisitioned into 
 deciding ingeniously for the institution of slavery, and yet at 
 the same time not rashly seem to flout the anti-slavery senti- 
 ment. 
 
 But a great change had come about since Marshall's deci- 
 sion in the Antelope case. The Supreme Court was now will- 
 ing enough to make a concession to the anti-slavery element 
 by outlawing the slave traffic. To retain the institution of 
 slavery itself some sop had to be thrown, particularly as the 
 Antelope decision had become the scorn and jeer of certain 
 European powers, which now, more than ever before, were 
 determined to put a peremptory stop to the slave trade. And 
 the Supreme Court doubtless well knew that whatever words 
 of indignation it should use in declaring the slave traffic illegal, 
 that traffic nevertheless, would surreptitiously continue. That 
 this proved to be so was shown by the large number of slave- 
 trading ships plying their traffic up to the very outbreak of the 
 Civil War, and even after. 10 
 
 Revolting Slaves to be Treated With Respect. 
 
 Two decisions, handed down in the same month January, 
 1841 graphically illustrated the new policy of the Supreme 
 Court. 
 
 The L'Amlstad, a Spanish schooner, sailed from Havana, 
 
 10 For . instance : From May I, 1852, to May I, 1862, twenty-six 
 American schooners and brigs were libeled by the Government at the 
 port of New York alone, charged with being engaged in the slave 
 traffic. Some were seized at New York, others on the coast of Africa. 
 Many were condemned. See, Senate Doc. No. 53, Vol. V, U. S. 
 Senate Docs., Second Session, 1861-62.
 
 UNDER CHIEF JUSTICE TANEY 399 
 
 June 27, 1839, bound for Puerto Principe, with a cargo of 
 slaves kidnapped from Africa. On the voyage the negroes 
 rose in revolt, killed the captain, and took possession of the 
 vessel. Off Montauk Point, Long Island, Lieutenant Gedney, 
 of the U. S. brig Washington, sighted the schooner and seized 
 her. Two Spanish capitalists, Jose Ruiz and Pedro Montez, 
 applied in court for restoration of the slaves to them as their 
 property. The negroes, in opposition, recited that they were 
 free-born Africans, and not slaves; that in April, 1839, they 
 had been kidnapped from Africa and transported to Cuba to 
 be sold as slaves; and that they had risen in revolt and killed 
 the captain, intending to return to their native country or seek 
 asylum in some free land. 
 
 When the circumstances became public, they aroused a 
 tremendous sensation. In the North they excited mixed sym- 
 pathy for the negroes, and indignation against the slave trad- 
 ers. Both in North and South admiration was felt for the 
 courage of the revolters, although in the slave sections it was 
 admiration burdened with an appalling fear ; if the negroes 
 had shown such daring and determination in revolting on the 
 ship, was it not possible that the same desperation might lead 
 to a general uprising of the whole slave population in the 
 South ? 
 
 The courts did not presume to proceed against the kid- 
 napped negroes for mutiny and murder. The District Court 
 ordered them to be returned to their native land. When the 
 case was appealed to the Supreme Court of the United States, 
 venerable John Quincy Adams appeared as the negroes' at- 
 torney. Justice Story was allowed to write the court's opin- 
 ion (only Justice Baldwin dissenting) to this effect: That the 
 negroes had never been lawful slaves; that they were natives 
 of Africa, and had been kidnapped in violation of the Spanish 
 laws by which the African slave trade had been declared ut- 
 terly abolished and by which the traffic was outlawed as a
 
 4OO HISTORY OF THE SUPREME COURT 
 
 heinous crime. The court ordered that the negroes be set 
 free. 11 
 
 Where now was Marshall's doctrine of acquiescence? Was 
 it imperative on the part of the enslaved, to revolt and slaugh- 
 ter, in order to prove the absence of acquiescence on their 
 part? If so, the Supreme Court in that decision was practic- 
 ally, although unwittingly, giving this advice to the enslaved 
 of all generations : Tamely submit to servitude, and the 
 meshes of the law's fictional doctrines will hold you. Revolt 
 against those conditions, and you prove to our satisfaction 
 that you do not acquiesce. 
 
 Slaves Were Merchandise, Not Persons. 
 
 But the other and accompanying decision, delivered in the 
 same month, riveted the bonds of those already held in slav- 
 ery. It did this under the State rights doctrine. 
 
 Robert Slaughter sued Groves and others for payment of 
 promissory notes due for slaves that Slaughter had brought 
 in to the State of Mississippi after May, 1833. Large nurn- 
 bers of slaves, it may be said parenthetically, had been rushed 
 into Mississippi following the fraudulent acquisition by indi- 
 viduals and syndicates of those great tracts of cotton lands. 
 Much of this seizure had gone on under Taney, as Secretary 
 of the Treasury ; and the slave owners, needing the slaves to 
 clear, till and cultivate the lands, imported gangs of them, 
 despite laws prohibiting that importation. Some of these 
 slave owners Groves and others saw, or thought they 
 saw, an easy way of keeping slaves purchased and yet escap- 
 ing the necessity of paying for them. Groves et al. refused 
 to pay Slaughter, claiming that the notes were null and void 
 
 11 XV Peters, 518. The case was entitled United States vs. L'Ami- 
 stad. The suit brought by the Government had no direct bearing what- 
 ever on the question of the negroes, but was instituted to determine 
 the rights of the Spanish claimants to the restitution of what they 
 called their " property."
 
 UNDER CHIEF JUSTICE TANEY 4OI 
 
 because the contracts on which they were founded were in 
 direct violation of the Constitution of that State, adopted in 
 1832, which document expressly prohibited the introduction 
 of slaves into Mississippi, as merchandise for sale, after May 
 i, 1833. The case went up on appeal to the Supreme Court 
 of the United States. 
 
 Pleading that the slaves were property, and that property 
 rights as such should be protected, Jones, attorney for 
 Slaughter, urged upon the Supreme Court : ' This case is of 
 much importance in principle, and it is also so because of the 
 very large amount of property which depends for its safety 
 on the decision of this Court. Millions of dollars have been 
 laid out in the purchase of slaves, carried into the State of 
 Mississippi from other States for sale ; without any idea on 
 the part of the sellers or buyers that there was any law or 
 constitutional provision which affected the transactions." 12 
 
 Here the plea was ignorance of any prohibitory law. That 
 the Supreme Court tolerated such a plea was extremely sug- 
 gestive : in the case of poor offenders did not the courts always 
 implacably say that ignorance of the law was no excuse? The 
 intent and meaning of the Mississippi Constitution of 1832 
 were direct and explicit; there could be no mistaking them. 
 How did the Supreme Court's decision meet this point? The 
 court evaded this point and based its decision upon entirely 
 different, extraneous points. 
 
 Delivering the court's opinion, Justice Smith Thompson af- 
 firmed the decision of the lower court in favor of Slaughter. 
 True, the Mississippi Constitution prohibited the importation 
 of slaves, but (said he), it did not invalidate the contract; to 
 effect such an invalidation and to carry it into effect, a special 
 law was required, and no such law was passed until 1837. The 
 sinister importance of this precedent will be presently seen ; 
 it was soon applied to the validation of the most enormous 
 land frauds. Yet although Justice Thompson declared that 
 
 12 Case of Groves et al. vs. Slaughter, XV Peters, 476.
 
 4O2 HISTORY OF THE SUPREME COURT 
 
 the question of the power to regulate traffic in slaves between 
 different points was not involved, McLean and Taney 
 gratuitously came forward to pronounce the supremacy of 
 State rights. 
 
 Why this eagerness to thrust forward this formulation? Be- 
 cause the Constitution of the United States treated slaves as 
 persons, as human beings, while the laws of Southern States 
 treated them as property, and considered them as merchandise. 
 In a separate opinion, concurring with Justice Thompson, Jus- 
 tice McLean, after pointing out that fact asserted : ;< The 
 power over slavery belongs to the States respectively. . . . 
 The right to exercise this power by a State is higher and deeper 
 than the Constitution." 13 
 
 Chief Justice Taney skulked behind Justice McLean. In 
 his opinion Taney wrote that he had not intended to express 
 an opinion on the power of Congress to regulate the traffic, 
 but inasmuch " as my Brother McLean has," therefore he, 
 Taney, would " on account of the interest which a large por- 
 tion of the Union naturally feel in this matter, and from an 
 apprehension that my silence, when another member of the 
 court has delivered his opinion, might be misconstrued." 
 Taney declared that the States had exclusive power over the 
 slave traffic. He added that no case, however, had yet arisen 
 making it necessary to decide the question of control by Con- 
 gress. 14 
 
 What influences caused these Justices to obtrude opinions 
 on issues not involved? Doubtless they were the same influ- 
 ences used in the Dred Scott case sixteen years later. The 
 real question was: Should the enslavement of negroes be 
 continued or abolished? The fate of millions of blacks in 
 bondage, and millions more yet unborn, hung upon the answer. 
 And here was the handful of men on the Supreme Court, all 
 
 13 XV Peters, 508. 
 
 14 Ibid., 509. Justices McKinley and Story dissented from Thomp- 
 son's opinion, Justice Catron was ill, and Justice Barbour died before 
 the case was decided.
 
 UNDER CHIEF JUSTICE TANEY 403 
 
 relatively old men, pretending not to know the fundamental 
 issue, yet resorting to every dexterous device and fine-spun 
 technical construction to justify and enforce negro slavery. 
 
 In the meantime, during the period following Marshall's 
 death, the Supreme Court continued validating private land 
 claims, most of which lay in the South and the beneficiaries of 
 which were either Southern slave holders or a combination 
 of them and Northern capitalists. 
 
 More Land Claims Validated. 
 
 The Soulard claim in Missouri, one of the land claim cases 
 the decisions in which were deferred by Marshall for six years, 
 was decided by the Supreme Court in January, 1836, shortly 
 before Taney was confirmed as Chief Justice. This claim, to 
 recapitulate, covered 10,000 arpents of land seventy miles 
 north of St. Louis and about fifteen miles west of the Missis- 
 sippi River. 
 
 It was a claim alleged to have been granted to Antoine 
 Soulard, father of the ostensible claimants, by Trudeau, the 
 Spanish Lieutenant-Governor of Louisiana, in 1796. Soulard 
 had been Surveyor-General, and it was alleged that the grant, 
 so-called, had been surveyed by his deputy surveyor, Don San- 
 tiago Rankin, in 1804. This claim as well as many others 
 bearing Trudeau's and Soulard's supposed signatures, had 
 been rejected by the U. S. Board of Land Commissioners in 
 1806-1807, as forged and in other respects fraudulent. The 
 Soulard claim was also one of a number of such claims re- 
 jected by Judge Peck, in the U. S. District Court at St. Louis, 
 in 1825, as illegal and invalid. Senator Benton of Missouri 
 was one of counsel for Soulard's heirs. They could produce 
 no original decree of concession and certificate of survey ; 
 when asked to explain they replied that those papers " were by 
 mistake thrown into the fire and destroyed." 
 
 In January, 1836, the Supreme Court of the United States
 
 404 HISTORY OF THE SUPREME COURT 
 
 validated the Soulard claim. That validation, of course, car- 
 ried with it the validation of many similar claims. Justice 
 Baldwin delivered the Court's opinion and it was very brief. 
 It fell back upon the precedents set by Marshall in the Florida 
 cases, and declared that Soulard's heirs had a good and valid 
 title. 15 
 
 In his scorching criticism of the Supreme Court's decisions, 
 Judge Peck gave particular attention to Soulard's activities. 
 He proceeded in great detail to " state the reasons upon which 
 it appears to me to impeach the record of surveys made by 
 Antoine Soulard and to establish the startling fact that the 
 frauds which appear to pervade the great mass of these Span- 
 ish claims pervade also the record of surveys made by Soulard 
 under the Spanish government." 1C After exhaustively and 
 specifically describing the inception and development of these 
 frauds, Judge Peck urged that the facts related should be 
 convincing " that those concessions had not been issued, had 
 not existence at the date of those surveys, and therefore could 
 nc?t at that date have been delivered to Mr. Soulard or to his 
 deputy." 17 Yet the Supreme Court held fast to the doctrine 
 that when an official survey was made the lands surveyed were 
 thereby detached from the mass of public lands and vested in 
 the beneficiary. The circumstances mattered nothing; the 
 formal, official act was conclusive, sacred and perpetually bind- 
 ing. 
 
 It was because it could not act in a way contradictory to 
 its own dictum that the Supreme Court found itself compelled 
 to reject certain private land claims which, it was proved by 
 the Government, had never been surveyed. One of these 
 rejected on this ground was that of John Smith, who claimed 
 
 15 Case of Soulard's Heirs vs. U. S., X Peters, 100-106. 
 
 18 "American State Papers: Public Lands," Vol. VIII: 841. Doc. 
 No. 1538. 
 
 17 Judge Peck's criticism was so voluminous with records and facts, 
 that neither the whole nor any adequate part can appropriately be 
 cited here. Those desirous of learning its contents in detail are re- 
 ferred to Doc. No. 1538.
 
 UNDER CHIEF JUSTICE TANEY 405 
 
 to have bought a grant for 10,000 arpents in Missouri, alleged 
 to have been granted by Governor Carondelet, to James St. 
 Vrain, in 1796. But this was one of the comparatively few 
 claims the confirmation of which was refused. The total area 
 of the claims in Missouri based upon alleged Spanish grants 
 aggregated a very large area ; the claims alleged to have been 
 given by Delassus, Trudeau's successor, alone embraced about 
 500,000 arpents; yet Judge Peck most clearly showed that a 
 certain alleged official Spanish order by Morales, Delassus' su- 
 perior, purporting to suspend the strict limitations under which 
 land was granted, was " a forgery of recent date, and in the 
 handwriting of Delassus." 19 
 
 In January 1840, the Supreme Court of the United States 
 gave another decision which, although involving only three 
 hundred acres of land in Florida, nevertheless served as an- 
 other precedent of vast importance, which together with 
 previous decisions, was later successfully cited by claimants 
 in cases dealing with the private appropriation of immense 
 areas of the public domain. This was the action of the United 
 States vs. Wiggins. The claimant relied upon a certified copy, 
 or a testimonio, of a concession made by the Spanish author- 
 ities. The original concession could not be found among the 
 archives, nor was its existence proved. A clerk in Aguilar's 
 office, where the archives were deposited, and who had been 
 custodian for six years, testified that he had never seen or 
 heard of the original. The Surveyor-General never saw it, 
 nor was it enumerated in the list of documents made soon after 
 the cession of Florida. Notwithstanding this negative proof, 
 the Supreme Court of the United States accepted the plea 
 that the original grant had once existed, and it validated the 
 claim. 20 
 
 18 Case of John Smith vs. U. S., X Peters, 324-336. Senator Benton 
 was Smith's attorney. 
 
 1 9 "American State Papers: Public Lands," Vol. VIII: 839. (Doc. 
 No. 1538.) 
 
 - See, XIV Peters, 334.
 
 406 HISTORY OF THE SUPREME COURT 
 
 Citing this decision as authority, the Supreme Court kept 
 on validating Florida land grants, the original concessions of 
 which were never produced, and the sole bases of which were 
 alleged copies certified by Aguilar. One of these claims, for 
 example, was that of John Rodman for 16,000 acres of land 
 on the west side of St. John's River, said to have been granted 
 to Robert M'Hardy, a surveyor, for the building of a saw- 
 mill. The Government contended that not only did no original 
 concession exist, but that the conditions of the alleged grant 
 had never been complied with. The Supreme Court, however, 
 validated the claim. 21 But some claims were rejected, not be- 
 cause they differed intrinsically from the confirmed claims, 
 but because the claimants had not been shrewd enough to get 
 an aggregation of testimony affirming that formal surveys had 
 been made, or that the original deeds of concession had been 
 lost or destroyed. 22 The moral seemed to be that those who 
 were so stupid as to neglect to fortify their claims with ample 
 required testimony, deserved to lose. 
 
 The cumulative results of these precedents were shown in 
 more than one way. They not only alienated into private 
 ownership huge domains in territory already in the United 
 States, but they gave points to land grabbers how to devise 
 and buttress frauds in Texas and in the vaster regions soon 
 after acquired by the United States from Mexico. But before 
 reciting these facts, it is necessary to advert to some changes 
 occurring in the personnel of the Supreme Court. 
 
 Three New Associate Justices. 
 
 At Associate Justice Barbour's death, Peter V. Daniel, on 
 March 3, 1841, was appointed to succeed him. Daniel was con- 
 nected with both the landed aristocracy and the dominant 
 political coterie ; he was the scion of an old Virginia landed 
 
 21 U. S. vs. Rodman, XV Peters, 130-140. 
 
 22 Buyck's claim for 50,000 acres in Florida was thus thrown out, 
 Delespine's for 92,160 acres, etc. See, Ibid., 215, 319, etc.
 
 UNDER CHIEF JUSTICE TANEY 407 
 
 family, and his father was a man of fortune. Peter V. Daniel 
 had increased the family's power by marrying a daughter of 
 Edmund Randolph, in whose office he had studied law. Ran- 
 dolph had a large landed estate, and had been a potent poli- 
 tician, serving in Washington's Cabinet. Daniel had been 
 long in politics and office holding; he had been a member of 
 the Virginia Privy Council in 1812, Lieutenant-Governor of 
 Virginia in 1835, and in 1836 had been appointed judge of the 
 U. S. District Court in Virginia. He was one of Jackson's 
 personal friends as well as a strong political adherent. At 
 the date of his appointment to the Supreme Court he was fifty- 
 seven years old. 
 
 Associate Justice Baldwin died in 1844. Toward the close 
 of his career his mind was deranged, and he was often violent 
 and ungovernable on the Supreme Court bench. In such ab- 
 ject poverty did he die that his friends found it necessary to 
 raise a fund for his burial expenses. 
 
 This surely is a significant fact. Here was one of the Jus- 
 tices conspicuously instrumental in giving away to spoliators 
 enormous areas of the most valuable agricultural, timber and 
 mineral lands in the country. The beneficiaries of the de- 
 cisions profited to the extent of hundreds of millions of dol- 
 lars. Yet Baldwin himself received no reward nor any part 
 of the profits. Typical of many other Justices, he was per- 
 sonally incorruptible so far as money went. It was not es- 
 sential to corrupt by mercenary means men of his type. The 
 class bias of their minds, the training that they had received 
 both in law and politics, and their case-hardened views on 
 vested property rights these were usually sufficient explana- 
 tions of their attitude and decisions. To attempt to bribe 
 men whose favor could be counted upon in advance would 
 have been dangerous, as well as a superfluous expense. We 
 have seen such judges and officials in our own time. 23 
 
 23 For example, John G. Carlisle. As Secretary of the Treasury, in 
 1895, he turned over a bond issue to a syndicate headed by J. Pierpont
 
 408 HISTORY OF THE SUPREME COURT 
 
 And although Associate Justice Story, at his death in 1845, 
 left an estate it was not large compared to great, or even pas- 
 sable, fortunes of the time. He had been extremely liberal 
 to his family, and had educated them at considerable expense. 
 " My worldly estate," he wrote in his will, " is not large, partly 
 because I have not felt as strongly as some persons the impor- 
 tance of wealth to happiness." 2 * 
 
 As a lawyer he had scrupled at no case, however rankly it 
 reeked with fraud. But in his character of Justice, his course 
 was not determined by bribes; it was assured by far more 
 efficacious and subtly permeating influences class loyalty, 
 class prejudices, class interests and personal gratitude and 
 associations, as also (so the facts prove) personal interest. 
 All of these men had absorbed the views of the ruling class 
 and the ancient laws drafted to insure the supremacy of that 
 class ; these ingrained ideas became inexorable convictions 
 which no argument could shake, and which they conceived 
 had to be translated into edicts at every fresh opportunity. 
 Such men were unshakenly class-disciplined. 
 
 Levi Woodbury was now appointed to the Supreme Court. 
 His appointment did indeed cause the land appropriators to 
 exult in high gratification, but it was received with execra- 
 tions by the forces opposed to the plundering of the national 
 domain. 
 
 Both of these elements recalled his compliant serviceable- 
 ness to the syndicates of land grabbers in the South, when he 
 was Secretary of the Treasury, and how he had shielded cor- 
 rupt land officials who had been the tools and accessories of 
 those combinations. In fact insidious comment was made that 
 his appointment as Associate Justice came at the very time when 
 astoundingly enormous frauds were being originated or car- 
 Morgan, allowing that syndicate to make $18,000,000 profit. After 
 Carlisle left office he was slightly rewarded by being employed as a 
 corporation attorney. He died recently in utter poverty, and his friends, 
 had to defray the expenses of his burial. 
 24 ,"Life and Letters," etc., Vol. II: 553.
 
 UNDER CHIEF JUSTICE TANEY 409 
 
 ried through in Texas frauds the ultimate validation of 
 which would depend upon the courts. 
 
 At this point the significant fact should be noted that Wood- 
 bury's successor as Secretary of the Treasury was none other 
 than Robert J. Walker, the head and front of the great com- 
 bination of speculators which had secured such enormous 
 areas of cotton lands in Mississippi under Taney and Wood- 
 bury's administrations. With the wealth extracted from land 
 grabbing Walker easily had himself elected to the United 
 States Senate in 1836. He was Secretary of the Treasury 
 ^from 1845 to !849; as has been noted, the Secretary of the 
 Treasury then held jurisdiction over the public lands. 
 
 At the same time that Woodbury was appointed to the 
 Supreme Court, in 1845, Samuel Nelson received his appoint- 
 ment to that tribunal. Nelson owned a landed estate of con- 
 siderable value at Cooperstown, New York. In 1846 Robert 
 Grier, at the age of fifty-two, ascended the Supreme Court 
 bench by grace of President Folk's commission. Grier had 
 been a judge in Pennsylvania; he had turned from Federalism 
 to support of the Democratic Party, and as a lawyer was as- 
 sociated with the land interests. 
 
 The Great Land Frauds in Texas. 
 
 The capitalists promoting the huge frauds in Texas were 
 largely those interested in the great Florida, Mississippi and 
 Arkansas land spoliations. George Griswold, so conspicuous 
 in the Mitchell claim of 1,200,000 acres in Florida validated by 
 the Supreme Court of the United States, was equally prom- 
 inent in the Texas frauds. Associated with him was an 
 array of other Northern capitalists Anthony Dey of New 
 York, William H. Sumner of Boston, George Curtis of New 
 York, Dudley Selden, a New York politician, General John 
 T. Mason, Stephen Whitney and others of the same city. 
 From the profits of his land transactions, Stephen Whitney
 
 4IO HISTORY OF THE SUPREME COURT 
 
 became so rich that at one time he was regarded as approach- 
 ing Commodore Vanderbilt in point of wealth; in 1852 Whit- 
 ney's estate was estimated at a round $7,000,000. But these 
 were only a few of the Northern capitalists concerned in vest- 
 ing in themselves immense stretches of Texas land. Many 
 other combinations and corporations were formed at the same 
 time, embracing Northern and Southern politicians and capi- 
 talists, slave owners, judges and some of the highest officials in 
 the country. 
 
 Texas contains 274,356 square miles or 175,587,840 acres 
 an area exceeding that of the thirteen original States. 
 The western part of Texas, because of the supposed lack of 
 water, was long not considered habitable for man or beast, 
 although in recent times inexhaustible subterranean supplies 
 of water have been discovered, and orchards and farms now 
 yield their harvests on stretches once deserts. But the po- 
 tential richness of the equally vast areas of eastern, northern, 
 central and southern Texas was early recognized ; it was well 
 known that great tracts of valuable primitive timber lands 
 awaited utilization, and that the soil was variously adapted for 
 the raising of cotton, sugar-cane, rice, tobacco and other crops. 
 It was a country marvelously adapted, also, for cattle ranging. 
 
 Beginning in 1821, when Texas was still a province of Mex- 
 ico, various promoters, or " empressarios," as they were called, 
 solicited and obtained contracts from the officials of the joint 
 States of Coahuila and Texas, by which, as compensation for 
 their services in introducing colonists, they were to receive 
 the jurisdiction of great colony grants of land. Each bona 
 fide colonist was to be entitled to a certain tract of land for 
 himself, usually a league and a labor (about 4,605 acres), and 
 the " empressario " was to receive as personal compensation 
 certain stated premium lands. In 1824 an event happened 
 which had a direct and sinister connection with the origin and 
 consummation of stupendous land frauds. This was the ap- 
 pearance in San Felipe of Samuel M. Williams, a young Bal-
 
 UNDER CHIEF JUSTICE TANEY 411 
 
 timore adventurer. He had been in Mexico for several years 
 and had learned the Spanish language thoroughly. His ad- 
 vent in San Felipe was as secretary of the land office at that 
 place. 
 
 The Colonization Contracts. 
 
 From 1821 to 1832 thirty-three colonization contracts were 
 allowed by the Mexican officials. In 1823 Moses Austin made 
 one contract, and in 1823-1826 his son, Stephen F. Austin, 
 made four contracts, covering scores of leagues of territory ; 
 their agreements, as was the case with certain others, did not 
 specify how many families were to be brought in. Robert Left- 
 wich, by the contract of April 15, 1824, was to introduce eight 
 hundred families; he soon died and Sterling C. Robertson 
 and Alexander Thompson assumed the contract under the 
 name of the Nashville Company. Martin DeLeon, in 1824 
 and 1829, made two contracts, and Frost Thorn, by his contract 
 of 1825, was to introduce four hundred families. D. G. Bur- 
 net, Joseph Vehlein and Lorenzo D. Zavala variously made 
 contracts in 1828 and 1829, and similar contracts were en- 
 tered into by Benjamin R. Milam, John L. Woodbury, John 
 Cameron, General Thomas J. Chambers, Hewitson and Pow- 
 ers and others. Such of these contracts as specified the num- 
 ber of families to be brought in show a total of 9,248 families 
 contracted for, to be settled in Texas. 
 
 When these contracts were made Commissioners were ap- 
 pointed, or alleged that they had been appointed, by the Mex- 
 ican authorities to determine the number of colonists intro- 
 duced and to give titles to both colonists and contractors 
 accordingly. Williams acted in that capacity for Austin's 
 colony ; George A. Nixon for the Burnet, Zavala and Vehlein 
 grants ; William H. Steele for the Nashville Company's col- 
 ony, and other Commissioners for other colonies. In some 
 cases the immediate friends or relatives of the contractors 
 were appointed, or audaciously assumed the post of Commis-
 
 412 HISTORY OF THE SUPREME COURT 
 
 sioner, which was not a difficult imposture in a remote country 
 and in a period of civil chaos, particularly following the time 
 when Mexico won its independence from Spain. 
 
 Many of the colonization contracts, however, were almost 
 at once turned over to companies of absentee capitalists who 
 had never seen Texas, had no intention of going there, and 
 whose only purpose was exploitation. 
 
 Not a few of these capitalists were New York and Boston 
 owners of packet lines whose methods in luring over poor 
 European immigrants, charging them extortionate rates, herd- 
 ing them foully in the ships, and dumping them unceremoni- 
 ously in a state of destitution at the different Northern ports 
 were at that very time subjects of legislative investigations at 
 home. Thus, the Burnet, Zavala and Vehlein contracts be- 
 came the property of a corporation calling itself " The Gal- 
 veston Bay and Texas Land Company," the officers of which 
 were General John T. Mason, George Griswold, Stephen Whit- 
 ney, Dudley Selden and associates. 25 Another such corpora- 
 tion composed of New York and other Eastern capitalists 
 was " The Colorado and Red River Land Company," based 
 upon the colonization contracts of J. C. Beale. The general 
 offices of this corporation were at No. 8 Wall Street, New 
 York, with L. B. Woodruff as secretary and attorney. 26 Al- 
 though the Beale contracts called for the colonization of only 
 six hundred families, yet, in its prospectus the company com- 
 puted the area in its grants at tzventy million acres, and stated 
 that it was authorized to select for itself, " where it pleased," 
 a premium of 23,000 acres for each one hundred families that 
 it colonized. 27 
 
 25 Case of Rose vs. the Governor, etc., XXIV Texas Reports (Su- 
 preme Court of Texas), p. 496. See, also, "Address To The Reader 
 of the Documents Relating To The Galveston Bay and Texas Land 
 Company, etc., New York, 1831." It was the company's pamphlet call- 
 ing public attention to the value of its land for timber supplies, and 
 for raising sugar, cotton, rice, indigo, tobacco, etc. 
 
 26 This prospectus was issued in pamphlet form ; the date is uncer- 
 tain probably 1834 or 1835. The above statement appears on page I. 
 
 "Ibid., 3.
 
 UNDER CHIEF JUSTICE TANEY 413 
 
 f 
 
 Among the various contractors or colonization corporations 
 there existed a combination of inter-related interests. In the 
 Nashville Company, for instance, Samuel M. Williams, 
 Stephen F. Austin, H. H. League and associates were inter- 
 ested, and some of the same group were prime movers in the 
 Powers and Hewitson contract. 
 
 These men were among the real promoters of the move- 
 ment for the independence of Texas; it was their interests 
 that, not entirely, but largely, engendered the struggle, and 
 it was their capital, in part, that supplied the arms and ammu- 
 nition. 28 Their frauds in seizing land were so truly gigantic 
 and so flagrantly in violation of the Mexican laws that to reap 
 the full benefits of their spoliations, they aimed to eject Mex- 
 ican authority and substitute their own government and offi- 
 cials. They themselves, they knew, would become the head 
 officials of the new Republic. This may not be romance, but 
 it is fact. 
 
 It is also a fact that so well grounded were the fears of 
 these spoliators that some aggressive Mexican President might 
 declare their enormous frauds forfeited, that they were des- 
 perately bent upon getting Texas out of the jurisdiction of 
 Mexico. General Santa Anna, President of Mexico, did in 
 fact issue a decree to this effect in 1853. Article I of his de- 
 cree declared that the public lands, as the exclusive property 
 of Texas, never could have been alienated by decrees, orders 
 or enactments. Article II denounced all sales, made without 
 the approval of the central government, as null and void, and 
 Article IV prohibited officials from admitting such claims. 
 This decree was followed by a still stronger decree in 1854. 
 
 28 And they later received, in return for these outlays and advances, 
 scrip entitling them to 1,329,200 acres. Stephen Whitney claimed that 
 Mason advanced $1,000 to Williams as a loan in supporting the war 
 for independence in 1835. Journal of the Texas Senate, 1856: 352. 
 Williams owned the Bank of Agriculture, chartered in 1835, and with 
 his partner, McKinney, held large claims for loans to the Texas 
 Government. Many of such claims, it was discovered, were forged. 
 See " Official Journal, Texas Senate," 1856 : 369.
 
 414 HISTORY OF THE SUPREME COURT 
 
 But by that time all of Texas, California, New Mexico, Ari- 
 zona and other territory had gone into possession of the 
 United States. Later on in this work, these decrees and how 
 they were nullified by the Supreme Court of the United States, 
 are described in detail. 
 
 Thus we see the land grabbers had the strongest possible 
 economic reason for wresting Texas from Mexico. Many of 
 them like Burnet and Milam became the chief officials of the 
 Republic of Texas. 
 
 How enormous a territory these contracting individuals and 
 companies fraudulently appropriated, and the bold methods 
 that they used, may be learned from the action of the Texas 
 Constitutional Convention of 1836. In many places in Texas 
 the actual settlers were literally up in arms against these 
 fraudulent claims, and the Convention was forced to take 
 notice. 
 
 After achieving its independence, Texas, of course, had full 
 control over its public lands; and subsequently it consented 
 to annexation to the United States only upon condition that it 
 retain that jurisdiction. To this day that control has been 
 retained; Texas lands have never been subject to the author- 
 ity of the National Government. 
 
 Eleven Hundred Leagues of Spurious Claims. 
 
 Article 220 of the Texas Constitution of 1836, aimed to 
 prevent the indiscriminate plundering going on. Section D 
 prohibited aliens from holding land except by direct title from 
 the Republic of Texas. Section I was designed to annul an 
 immense grant to General John T. Mason and company. It 
 declared that " the protection of the public domain from un- 
 just and fraudulent claims ... is one of the great duties 
 of this Convention." It recited that the Legislature of Coa- 
 huila and Texas in 1834 and 1835 passed two acts in behalf 
 of Mason, " under which the enormous amount of eleven hun-
 
 UNDER CHIEF JUSTICE TANEY 41$ 
 
 dred leagues of land had been claimed by sundry individuals, 
 some of whom reside in foreign countries, and are not citi- 
 zens of the Republic." Those acts, the Constitution further 
 read, were contrary to the laws of Mexico, and were forthwith 
 declared null and void. 29 One peculiarly heinous feature, the 
 Convention declared, was that the land grabbers had taken 
 advantage of the absence of most Texans who had been fight- 
 ing for independence, and had rushed surveyors at great speed 
 over the very choicest lands. After stating this fact, Sections 
 J and K annulled all such surveys, and suspended the issuing 
 of patents. 30 
 
 But by no means did these annulling Constitutional pro- 
 visions become effective. One factor was lacking to make 
 them so, although at the time of their adoption it was sup- 
 posed that Constitutional law was organic law. The omission, 
 it was later discovered, depriving them of all force was, ac- 
 cording to precedents established by the Supreme Court of 
 the United States, the failure of the Texas Congress or Leg- 
 islature to pass acts for the enforcement of those provisions. 
 The land appropriators vigilantly saw to it that no such acts 
 were ever passed. They themselves were leading officials and 
 judges; nearly all of the Supreme Court or the county court 
 judges were either land appropriators or were in alliance. 
 General J. T. Chambers not only was a colonization contrac- 
 tor, but he was long the Supreme Judge of Texas, acting the 
 judicial autocrat. 
 
 In 1837 the Texas Congress passed a general law making 
 donations to those who had been settlers before the date of 
 independence, in 1836, and to all soldiers of the war against 
 Mexico for independence. The enormous frauds committed 
 under this law are described later in this chapter. The 
 20,000,000 acres of land already granted officially by the year 
 1838 did not comprise those particular claims. They con- 
 
 29 "Early Laws of Texas, 1831-1845," Vol. I: 207-208. A league 
 equaled 4,428 acres. 
 80 Ibid.
 
 416 HISTORY OF THE SUPREME COURT 
 
 sisted almost wholly of patented grants to colonization cor- 
 porations, and to alleged settlers under Spanish or Mexican 
 contracts and titles. The colonization companies claimed that 
 up to the year 1838 they had brought in thirty-five hundred 
 families. Even if this claim were true the extent of land 
 accruing to the contractors would be about 4,000,000 acres. 
 But the claim was fictitious. A certain number of settlers 
 were in fact introduced, but the number was greatly mag- 
 nified. 
 
 That this was so was evidenced by the general demand on 
 the part of honest settlers for a Congressional investigation. 
 It was amply proved by the report of a joint investigating 
 committee of the Texas Congress in 1840, and by cases con- 
 stantly coming up in the Texas courts. The resolution under 
 which the joint committee was appointed declared that 
 " whereas we have the evidence of the Constitution itself of 
 the existence of spurious claims to the amount of eleven hun- 
 dred leagues of land [nearly 5,000,000 acres], and there 
 is good reason to believe that a vast amount of fraud over 
 and above that specified in the Constitution has been perpe- 
 trated," etc. 31 
 
 Disclosures of Colossal Frauds. 
 
 The evidence was overwhelming. Samuel M. Williams and 
 two associates, it appeared, had made a claim for four hun- 
 dred leagues of land in Nacogdoches, Red River and Harri- 
 son counties, based upon an alleged grant from the Mexican 
 governor, on the condition that they supply a thousand armed 
 men to fight the Indians. In testifying to these facts John 
 P. Borden, Commissioner of the Texas General Land Office, 
 admitted that titles to ten leagues of land were gratuitously 
 and without solicitation made out to himself (Borden), and 
 
 31 " Evidence in Relation to Land Titles Taken Before The Joint 
 Committee on Public Lands, Printed By Order of The House, 1840 " : 
 p. 2.
 
 UNDER CHIEF JUSTICE TANEY 417 
 
 one league to two of his brothers. Borden testified further 
 that " it appears from the record in my office that the whole 
 number of men purporting to have been enlisted under the 
 contract of Williams, Peebles and Johnson was forty-one." 
 "And what of the title papers?" Borden was asked. He 
 declared that they bore the clearest proof of having been 
 forged. 32 It appeared that Aldrete, Commissioner for giving 
 titles at Nacogdoches, was an impostor; that he had no real 
 authority; and yet Borden testified that Aldrete in 1833-1834, 
 had issued titles to 150^2 leagues of land in Liberty, Houston 
 and Red River counties to alleged colonists. 33 And who, as 
 Commissioner, had issued titles to John T. Mason ? None other 
 than the malodorous Colonel James Bowie, and on pretended 
 authority at that ; in the year 1835 alone Bowie had presented 
 Mason with titles to ninety-five leagues of land in Harrison 
 and Nacogdoches counties. 34 
 
 General T. J. Chambers claimed to have received sixteen 
 leagues on one occasion, and twenty-three leagues on another, 
 near Waco and in other regions for " judicial services " ; Gov- 
 ernor Viesca said he had never authorized the concession, 
 yet titles were issued. George Aldrich, a surveyor, testified 
 that in 1835 ne had surveyed about four hundred leagues of 
 land; that he was paid for those surveys by Williams, John- 
 son and Peebles; and that he was to receive twenty leagues 
 as compensation for making the survey. Aldrich further tes- 
 tified that it was " usual for surveyors to make surveys and 
 sell the field notes afterwards without having in their posses- 
 sion any order of survey." 35 George A. Nixon, Commissioner 
 for issuing titles, granted title, in 1834-35, to eight hundred 
 and seventy-one leagues of land in Libby, Jefferson, Jasper, 
 Sabine, Nacogdoches, San Augustine, Houston and Mont- 
 gomery jcounties, to the Galveston Bay and Texas Land Com- 
 
 32 Ibid., 6. 
 
 33 Ibid., 7 and 29. 
 **Ibid., 29. 
 
 35 Ibid., ii. The italics are the present author's.
 
 418 HISTORY OF THE SUPREME COURT 
 
 pany, on the Burnet-Vehlein-Zavala colonization contracts. 
 Nixon himself received a present of eleven leagues by order 
 of William H. Steele, Title Commissioner for the Nashville 
 colony. 30 
 
 E. L. R. Wheelock, a surveyor, testified that in 1835 he ac- 
 cused Steele of acting without authority in giving titles and 
 that thereupon Steele became greatly agitated and swore. 
 Steele then produced a document which he said was his au- 
 thority, but when Wheelock tried to get it Steele hurriedly 
 hid it. Wheelock further testified that Steele told him that 
 he (Steele) was interested in the profits of the Nashville Com- 
 pany. Wheelock was invited " to join them in a combination to 
 let no man who came have land, unless it was poor or refuse 
 land, unless they would let one of the company clear it out 
 on shares." 37 Steele, according to Wheelock, offered the lat- 
 ter a gift of seven leagues if he would turn over all his field 
 notes in blank, and that Steele " added at the same time, he 
 came to Texas to make a fortune, and would have it at any 
 price." Wheelock testified that he met Steele later and that 
 Steele " declared ... I was a fool I had not followed 
 his advice, as him and Joseph L. Hood were rich." 38 Steele, 
 it was further testified, controlled all of the municipal officers, 
 and so ran his surveys completely round the improvements of 
 actual settlers as to force them to buy land from him. Whee- 
 lock testified that he came into possession of a deed made out 
 in blank by Steele for one sitio of land (equal to a league, 
 or 4,428 acres) ; Wheelock turned it over to the Texas Gov- 
 ernment " for the purpose of enabling it to detect such 
 frauds." 39 
 
 Recalled as a witness, Borden gave an itemized list of a 
 huge number of forged and antedated titles in the Nashville, 
 Vehlein, Burnet, Zavala, Cameron and Grant and other col- 
 
 36 " Evidence in Relation to Land Titles," etc., II. 
 "Ibid., 18. 
 as ibid. 
 8 Ibid., 20.
 
 UNDER CHIEF JUSTICE TANEY 419 
 
 onies. 40 It will now be observed how carefully these appro- 
 priators followed the tacit advice given by the Supreme 
 Court of the United States in its decisions in the Arredondo 
 and Mitchell cases. Borden testified that many of the alleged 
 grants deposited in the Land Office were not originals; that 
 they were certified copies; and that " it was generally be- 
 lieved that the originals were carried off or destroyed by- the 
 Commissioners." Of the four hundred leagues (1,771,200 
 acres) granted at Nacogdoches alone, irrespective of the grants 
 elsewhere, Borden testified that a large portion were granted 
 in violation of both Mexican and Texan laws prohibiting 
 unauthorized settlement of any lands comprehended within 
 twenty leagues of the limits of any foreign nation, or the 
 settlement of any territory within ten leagues in a straight 
 line from the Gulf of Mexico. Borden declared that there was 
 absolutely no proof in the Land Office that any authority for 
 their settlement existed. 
 
 These are a few typical facts from the joint committee's 
 report. As a further example of how land was granted to 
 spurious colonists the case of Martin DeLeon's colony will 
 suffice. The Commissioner for that colony gave his own son, 
 Francisco DeLeon, a grant of a quarter of a league of land, 
 and made an affidavit that Francisco possessed all requisite 
 qualifications, although, as a matter of fact, Francisco was 
 only a boy of ten years at the time, and was at school in 
 Louisiana. At the same time Commissioner DeLeon granted 
 himself a sitio of land (4,428 acres) as " the head of a fam- 
 ily." 41 
 
 Naturally, at this point of the narrative, the one question 
 obtruding itself is: In the face of these proofs of glaring 
 fraud did the looters retain their loot? They did. The con- 
 secutive records of the Texas Land Office show that 25,517,- 
 391 acres were originally confirmed under a few Spanish and 
 
 40 See the long list he gave, Ibid., Doc. No. 13. , 
 
 41 Case of De Leon vs. White, IX Texas Reports, 598.
 
 420 HISTORY OF THE SUPREME COURT 
 
 many alleged Mexican titles. Deducting several million acres 
 subsequently subtracted or declared forfeited, there remained 
 22,492,507 acres permanently alienated by means of these 
 fraudulent claims. 
 
 These appropriations covered the richest and most fertile 
 parts of Texas. How was the alienation consummated? By 
 two methods: One device was to induce the Legislature to 
 take no positive, effective adverse action ; the other to get con- 
 firmation from the courts. 42 Judges Hemphill, Wheeler, 
 Lipscomb and others of the Texas Supreme Court had all 
 been attorneys for the land appropriators ; in fact, in a cer- 
 tain case coming up before them, several of the judges had 
 been counsel for the interests concerned, and a special judge 
 had to be appointed for the occasion. 43 These judges fully 
 accepted the doctrine laid down by the Supreme Court of 
 the United States that the original deed need not be produced ; 
 that a certified copy of a copy was as good as the original. 4 * 
 After the annexation of Texas to the United States the prece- 
 dents of the Supreme Court of the United States were, of 
 course, jurisdictional and binding. Thus the validation of 
 spurious grants comprising a large part of 22,000,000 acres 
 was based upon the action of the Supreme Court of the United 
 States in the Arredondo and Mitchell cases; when the Texas 
 
 42 See, Report of Texas House Judiciary Committee, January 4, 1858. 
 It reported this fact, and declared that it was well known that " not 
 one in twenty of these titles were perfected by performance of condi- 
 tions." It spoke of the old defenders of their country being driven 
 from home " that the land sharks and speculators may reap their har- 
 vest of gain." " Official Journal, House of Rep., Texas, 7th Biennial 
 Session," 470-471. 
 
 43 This note appears in the report of a land case in II Texas Re- 
 ports, 78 (Dec., 1847) : "This cause was tried before the Hon. R. T. 
 Wheeler, Ass. J. of the S. C., and Thomas J. Jennings, Esq., so con- 
 stituted in consequence of Justice Hemphill and Associate Justice Lips- 
 comb having previously been counsel for the parties." In another such 
 case (III Texas Reports, 248) Judge Wheeler did not sit, "having 
 been of counsel below." 
 
 44 See, Case of Paschal vs. Perez, VII Texas Reports (1851), p. 359, 
 etc., etc.
 
 UNDER CHIEF JUSTICE TANEY 421 
 
 judges were criticised, they pointed to precedents set by the 
 great tribunal at Washington as their infallible justification. 
 
 From whom did these certified copies of copies emanate? 
 From the Land Office at Austin. Of the methods of the Land 
 Office we get a clear glimpse in the suits of the City of Gal- 
 veston and the State of Texas vs. Menard. Michael B. 
 Menard was a conspicuous member of the Senate under the 
 Texas Republic ; he was associated with Williams, Thomas M. 
 League and others in various projects. He and League, for 
 example, were among the incorporators of the Houston and 
 Brazos Railroad Company, Menard personally obtained pat- 
 ents for huge quantities of land in many Texas districts. 
 
 On December 9, 1836, the Texas Congress granted to 
 Menard one league and one labor of land on the island of 
 Galveston for $50,000, the funds being part of his plunder 
 from his land operations. Galveston real estate was of great 
 value even at that early date ; it was a principal sea-port with 
 considerable commerce. Menard organized the Galveston City 
 Company, partitioned his land into lots, and reaped large 
 profits. 
 
 Presently he set up a claim to the whole of the " flats " or 
 water-front. The Land Office graciously " construed " his 
 claim so as to present him with an excess of more than 
 1,700 acres of water-front property. The Supreme Court 
 of Texas in 1859 upheld that " construction." 45 In its peti- 
 tion to the court, in 1873, t ne State of Texas averred that 
 " the patent or deed was made to contain this excess through 
 the fraudulent combinations and representations of M. B. 
 Menard and the Commissioner of the General Land Office." 
 Largely on Marshall's doctrine of acquiescence, the court de- 
 cided against the State's action to recover ; the claim, said the 
 court, had been recognized for thirty years, and that should 
 be sufficient. 40 
 
 45 XXIII Texas Reports, 349. Judge Wheeler, having been counsel 
 for Menard, did not sit in the case. 
 
 46 XXXVIII Texas Reports, 12-35.
 
 422 HISTORY OF THE SUPREME COURT 
 
 Everybody knew of the spurious nature of the alleged 
 grants and titles, yet the Texas courts, not always, but usu- 
 ally, imitated Marshall's practice of treating proofs of fraud 
 as fiction, and they studiously followed his precedents. And 
 every well-informed person knew, too, how a large share of 
 the capital that the New York capitalists had used in their 
 Texas operations had been obtained. In 1838 it was dis- 
 covered that Samuel Swartwout, a leader of Tammany Hall, 
 and Collector of the Port of New York, had stolen the enor- 
 mous sum of $1,222,705.69 from the Government, much of 
 which theft had go'ne into Texas land speculation schemes. 47 
 
 The Castro, Mercer, Peter and Other Contracts. 
 
 Within two years after the disclosure by the Texas Con- 
 gressional joint committee, the Texas Congress made more 
 colonization contracts. One of these grants was made, in 
 1842, to Henri Castro and associates, for the introduction of 
 six hundred families within six years. A second contract was 
 with Charles Fenton Mercer, for the introduction of five 
 hundred families within five years. The Peter's contract giv- 
 ing 10,000 square miles was a third, and Fischer and Miller's 
 for the introduction of six thousand German immigrants, a 
 fourth. Mercer's and Peter's grants were in the north cen- 
 tral part of Texas, Castro's extended from the Frio River to 
 the Rio Grande, and Fischer and Miller's were on the waters of 
 the Colorado, Llano and San Saba rivers. 
 
 The conditions of none of these grants were performed. 
 Castro fell back upon the old subterfuge so often successfully 
 pleaded in the Supreme Court of the United States, that In- 
 dian hostilities prevented him. In numerous cases in the 
 Texas courts it was proved that Castro extorted contracts 
 from all immigrants conveying to him and associates one-half 
 
 47 House Ex. Doc. No. 13, Twenty-fifth Congress, Third Session; 
 also House Report, No. 313.
 
 UNDER CHIEF JUSTICE TANEY 423 
 
 of the lands that they should receive. If they refused they 
 were rejected as colonists. 48 In fact, all of the contractors, or 
 " empressarios," did the same. 49 Mercer (" The Texas Asso- 
 ciation"), did not bring in a single settler, and Peter and as- 
 sociates (otherwise the Texas Land and Immigration Com- 
 pany) shamelessly violated their contracts. 
 
 Apparently their contracts stood forfeited. But in 1850 
 and 1852 the promoters induced the Texas Legislature to 
 pass acts with various favorable provisions, one of which was 
 the empowering of the local courts t(T adjudicate claims and 
 decree grants. The argument used by the companies at 
 least the public argument was based upon precedents of the 
 Supreme Court of the United States that a contract created 
 an express trust which could not be contravened. Under the 
 acts of 1850 and 1 1852 the Peter, Mercer, Castro and Fischer and 
 Miller companies received a total of 4,494,806 acres. A vast 
 number of claims were allowed to fictitious colonists. In his 
 message to the Texas Legislature on November 9, 1855, Gov- 
 ernor E. M. Pease stated that " a large majority of said cer- 
 tificates were issued to young men under seventeen years of 
 age" (at the time the settlement was alleged to have been 
 made.) 50 
 
 48 See, Castro vs. James, VII Texas Reports, 219-223, and Ibid., Vol. 
 XX : 278. 
 
 40 XV Texas Reports, 180-183. 
 
 50 Official Journal of the House of Representatives, State of Texas, 
 Seventh Biennial Session, 1857: 80-81. See, also, Report of S. Crosby, 
 Commissioner of the Texas General Land Office, Official Journal of the 
 Senate, 1856: 149-150. In his report for the years 1900-1902, Charles 
 Rogan, Commissioner of the Texas General Land Office stated (page 
 41) that an examination of the Spanish department of the Land Office 
 showed that the act of September 4, 1850, also validated or confirmed 
 private land claims to the extent of 1,100,000 acres, " which are still 
 claimed and which seem to have good titles." Among the claims thus 
 confirmed, according to Rogan, was Jose B. Borego's claim to forty- 
 seven leagues ; " but," reported Rogan, " the claimants are actually 
 holding sixty-four leagues, or 286,532 acres." This excess, Rogan 
 stated, the claimants have been holding on doubtful authority. An- 
 other claim confirmed by the act of 1850, Rogan reported, was that of 
 Juan J. Balli, for seventy-one leagues and nine caballerios (315,362 
 acres).
 
 424 HISTORY OF THE SUPREME COURT 
 
 Some of the 4,494,806 acres went to actual colonists, but 
 by far the greatest portion remained in the ownership of the 
 four promoting corporations. 51 Thus, under the Castro con- 
 tract, 879,920 acres were given to alleged colonists, and 1,088,- 
 ooo acres to the company. 
 
 Official documents gave an appalling enough picture of how 
 at least 26,000,000 acres of the richest Texas lands were 
 literally stolen, but it was reserved to United States Senator 
 Sam Houston to make public further details of how the thefts 
 were accomplished. General Houston had been President of 
 the Republic of Texas; and when on Febfuary 3, 1859, he 
 made an extraordinary statement of facts in the United States 
 Senate, even reading undeniable documents showing how the 
 land appropriators had carried on their operations and how 
 they boasted of being able to corrupt the Supreme Court of 
 the United States, his disclosures were accepted as the au- 
 thoritative utterances of a man who knew his facts. His 
 speech, in fact, made such a profound sensation that it was 
 
 51 For a time the capitalists owning the Mercer claim were satisfied 
 with the 691,840 acres that they received. But twenty-five years later, 
 they set up a claim to not less than six thousand square miles. Among 
 the assertions, in reply to this claim, made by the State of Texas, were 
 these charges : That the contract was fraudulently obtained and that 
 the map submitted by the Mercer Company purporting to bear date of 
 May I, 1845, appeared to be of recent date ; had been surreptitiously 
 deposited in the office of the Secretary of State, without his knowledge, 
 and took in about three thousand square miles more than the contract 
 actually covered. 
 
 If this new claim, or any part of it, had been allowed, it would have 
 conflicted with domains owned by railroad corporations. Times had 
 changed ; the judges on the bench in 1882 were almost exclusively for- 
 mer railroad attorneys. The Supreme Court of the United States, in 
 1883, threw the case out of court, saying that there was no satisfactory 
 evidence that Mercer and associates ever introduced directly or indi- 
 rectly a single family into Texas. " Have they spent any money in the 
 enterprise ? " Justice Miller went on. " A feeble attempt to show an 
 outlay of $12,000 or $15,000 is made, but by no means successfully." 
 Case of Hancock vs. Walsh (Commissioner of the Texas General Land 
 Office), III Wood's Reports, 351-367, and Case of Walsh vs. Preston, 
 109 U. S. Reports, 318. But this decision did not take away the 691,- 
 840 acres already obtained by the Mercer Company.
 
 UNDER CHIEF JUSTICE TANEY 425 
 
 not allowed to remain embalmed in the soon- forgotten pages 
 of the Congressional Globe, as most speeches of members of 
 Congress were, but was published in book form. 52 
 
 Judge Watrous' Particular Activities. 
 
 The circumstances leading up to Senator Houston's revela- 
 tions were as follows : 
 
 The local attorney for the Peter's colonization company had 
 been John C. Watrous. He was, it seems, not only a shrewd 
 and unscrupulous lawyer, but he was also a capitalist pro-, 
 moter, and was associated with Williams, Menard, McKinney, 
 Thomas M. League and other members of the group so dili- 
 gently and successfully plundering Texas. Also he was one 
 of the most adroit lobbyists in the Texas Legislature; one of 
 the measures that he had lobbied through was an act in 1841 
 incorporating himself and others of Texas and London, Eng- 
 land, as the Texas Trading, Mining and Emigrating Company 
 for the purpose of purchasing lands, importing immigrants, 
 etc. 53 Watrous had a hand deep in a large number of great 
 frauds then being promoted: colonization schemes, alleged 
 Mexican private grants, and spurious certificates alleged to 
 have been granted to Texan soldiers and to settlers. 
 
 In fact, he helped to organize a company to profit from the 
 traffic in immense numbers of these fraudulent certificates. 
 This company was composed principally of Watrous, ex-Con- 
 gressman Joseph L. Williams, J. N. Reynolds (a New York 
 politician and lobbyist who received subsidies from the large 
 cotton-mill firm of Lawrence, Stone & Company, of Fall 
 River, for lobbying tariff measures through Congress by brib- 
 
 52 The Land Conspiracies of Texas, etc. Speech of Senator Sam 
 Houston, of Texas, Exposing the Malfeasance and Corruption of John 
 C. Watrous, Judge of the Federal Court in Texas, and Of His Con- 
 federates, Delivered In The Senate of the United States, Feb. 3, 1859." 
 N. Y., Pudney & Russell, Printers, 1860. 
 
 3 " Laws of the Republic of Texas, Fifth Congress, 1841 ": 78-79.
 
 426 HISTORY OF THE SUPREME COURT 
 
 ery 54 ), and J. S. Lake, an Ohio and New York City politician 
 banker and broker who had plundered the Wooster Bank 
 and the public of $936,398, much of which he had lost in 
 speculations. 55 Associated with these men were other Texas 
 and New York City capitalists; the headquarters of the com- 
 pany was in New York City. 
 
 What the clique especially and most pressingly wanted was 
 a judge of their own in the United States District Court; 
 although the Texas judges could be generally depended upon, 
 still they often represented conflicting interests. Much more 
 satisfying would be a judge absolutely and unalterably bound 
 up in interest with the clique. Largely through the influence 
 of Caleb Cushing, of Massachusetts, a puissant figure at Wasl - 
 ington, and subsequently Attorney-General of the Unitec. 
 States, the clique, on May 29, 1846, shortly after the annexa- 
 tion of Texas to the United States, succeeded in having Wat- 
 rous appointed judge of the U. S. District Court in Texas. 
 
 Now, indeed, the land grabbers were sure of having their 
 own way. True, Texas retained control of its lands', and 
 the Texas courts were supposed to have complete jurisdic- 
 tion. But by some member of the clique feigning or having a 
 residence in some other State, collusive suits could be carried 
 on and thrown into the United States District Court, which 
 would be Watrous. This is what happened, as prearranged. 
 When Watrous went on the bench, two lawyers, Ovid F. 
 Johnson of Pennsylvania, and William G. Hale of New Hamp- 
 shire, were imported into Texas to take charge of the clique's 
 law affairs. To them Watrous turned over the Peter's col- 
 ony, and other legal business. Through Robert Hughes, his 
 confidential adviser, W T atrous was also interested in the Pow- 
 ers and Hewitson grant, covering a large body of land on the 
 coast, west of Galveston. Hughes, it may be remarked, had 
 
 54 Report No. 352, Reports of Committees, Fifty-Third Congress, 
 First Session, Vol. Ill : 20, etc. 
 
 55 " De Bow's Review," 1848 : 262-263. Senator Houston gave details 
 of Lake's career.
 
 UNDER CHIEF JUSTICE TANEY 427 
 
 been a surety in bond for William M. Gwin, former Marshall 
 of southern Mississippi, whose implication in enormous land 
 frauds has already been described. 
 
 Texas Legislature Denounces Watrous. 
 
 On March 20, 1848, a joint resolution of the Texas Leg- 
 islature declared that Judge Watrous had given important 
 decisions in cases in which he was interested, and that it also 
 believed that Judge Watrous " has, while in office, aided and 
 assisted certain individuals, if not directly interested himself, 
 in an at'r.mpt to fasten upon the State one of the most stu- 
 pendous frauds ever practised upon any country or any peo- 
 ple, tl'e effect of which would be to rob Texas of millions of 
 acres of her public domain. . . ." Judge Watrous was 
 asked to resign. He ignored both the denunciation and the 
 req'j'jst. 
 
 One of the suits begun in Watrous' court was an action to 
 have fraudulent certificates validated. The case went up to 
 tfie Supreme Court of the United States which in 1850 de- 
 clined to validate them, saying that " immense numbers of 
 these certificates were put in circulation, either forged or 
 fraudulently obtained, which, if confirmed by surveys or pat- 
 ents would soon have absorbed all of the vacant lands of the 
 Republic." B6 This decision caused consternation among the 
 clique; and, as the sequel indicated, they now began to exert 
 " influences " to attempt to win over the Supreme Court of 
 the United States. 
 
 In 1855, the Adjutant-General's office at Austin, where 
 many of the land archives were stored, was set on fire and 
 destroyed by incendiaries. This act, Governor Pease re- 
 ported, " has destroyed most of the original evidences upon 
 which bounty and donation certificates were issued." " On 
 
 50 Case of Thomas M. League vs. John De Young, Howard's Re- 
 ports, Vol. XI : 201. 
 57 Journal of the (Texas) Senate, Sixth Legislature, 1855 : 42.
 
 428 HISTORY OF THE SUPREME COURT 
 
 July 29, 1856, Stephen Crosby, Commissioner of the Texas 
 Land Office, reported that an attempt had been made to de- 
 stroy the Land Office building by fire. 58 
 
 The reason lay in a desperate attempt to hinder a select com- 
 mittee of the Texas Senate which had been investigating the 
 matter of land certificates alleged to have been granted to 
 settlers, head of families, and to former soldiers in the Texan 
 army. This committee reported voluminously on January 21, 
 1856, that the Boards of Traveling Commissioners which had 
 been originally appointed in 1837 to determine who was en- 
 titled to land had grossly betrayed their trust. The com- 
 mittee recited in detail that not only were enormous numbers 
 of forged and otherwise fraudulent certificates issued in the 
 name of persons who never existed, and to soldiers long since 
 dead, but that the officials and courts knew of the fraudulent 
 nature of most of the certificates. 59 
 
 Watrous' Impeachment Demanded. 
 
 In the same year that this report was submitted the Texas 
 Senate passed a resolution demanding the impeachment of 
 Judge Watrous. " Said judge," the resolution read, " is guilty 
 of attempting, by contriving and carrying on a made-up suit 
 in his own court, to validate in the same, over twelve hun- 
 dred fraudulent land certificates, claimed by himself, and 
 his ' compeers,' and of a class, in all, the enormous amount 
 of 24,331,764 acres of fraudulent certificates, thereby at- 
 tempting to deprive his country of a vast domain, besides caus- 
 ing the State the cost of additional counsel in defending herself 
 against such enormous precluded spoliations ; and, on discov- 
 ery of his interests in said class of certificates being made, said 
 judge transferred said suit for determination to the United 
 
 58 "Official Journal, Senate of the State of Texas, Adjourned Ses- 
 sion, 1856": p. 150. 
 
 59 Journal of the (Texas Senate) Sixth Legislature, 1856: 387-389,
 
 UNDER CHIEF JUSTICE TANEY 429 
 
 States Court in another State, after shaping the case, and 
 influencing that court in such a manner as to obtain his desired 
 judgment." A similar resolution was passed in the next year 
 by the Texas House. 60 
 
 These resolutions were passed under great pressure. Gen- 
 uine settlers were threatening violent retaliation if the frauds 
 succeeded ; and at a time when men wore their guns and used 
 them these threats were not dismissed as idle words. More- 
 over, the schemes of the Watrous clique interfered with those 
 of certain railroad, real-estate, ranch and other corporations 
 which combined all of their power and influence to depose 
 him. 61 
 
 In 1857 Jacob Mussina submitted a memorial to Congress 
 asking for the impeachment of Watrous. Mussina claimed 
 an interest in titles to the cities of Brownsville, Point Isabel 
 and adjacent lands. He recounted that the Watrous clique, 
 however, had turned up with an alleged old grant, called the 
 Cavazos grant, and that under this they alleged ownership 
 of 250,000 acres, including the towns of Brownsville and Point 
 Isabel and numerous villages and ranches, as also Govern- 
 ment sites and improvements. Mussina further charged that a 
 fraudulent trumped-up case was brought by William G. Hale 
 and his partner, and that after deciding the case against Mus- 
 sina, and influencing other United States judges, Judge Watrous 
 ordered Mussina's property sequestrated. Mussina submitted 
 an impressive series of facts from the court records to prove 
 his charges. 62 
 
 At the same time, Eliphas Spencer, of Texas, submitted a 
 like memorial showing that WatrouSj Williams, League, John 
 
 80 " Official Journal of the Senate, of the State of Texas, Adjourned 
 Session, 1856": p. 399, and Ibid of the House, 1857: pp. 420-424. 
 
 61 The railroad companies secured approximately 32,400,000 acres in 
 Texas. Much of this was obtained in, or after, the year 1854. Manu- 
 facturing and navigating corporations, then and subsequently, obtained 
 a gift, in total, of 4,061,000 acres. 
 
 02 Reports of Committees, First Session, Thirty-fifth Congress, 1857- 
 58, Report No. 54: 2-10.
 
 430 HISTORY OF THE SUPREME COUXT 
 
 W. Lapsley, Menard and others were interested in pushing a 
 claim for eleven leagues, based upon an alleged old grant to 
 Thomas de La Vega. Spencer accused Williams of forging 
 the power of attorney from La Vega, and he detailed how 
 Judge Watrous became secretly interested in the claim and 
 how Watrous had fraudulently and corruptly decided the 
 case and had influenced other judges to act similarly 03 This 
 particular eleven-league tract in dispute was merely a part of 
 thirty-three leagues, or 180,000 acres, alleged to have been 
 granted to La Vega and De Aguirres by the Mexican Gov- 
 ernment. 
 
 Watrous Haled up on Charges. 
 
 The House Committee on the Judiciary on February 2, 
 1857, recommended that action be taken on the charges against 
 Watrous. Five days later, the House of Representatives as a 
 body, determined, by a vote of 156 to 32, to proceed against 
 Watrous in hearing the charges on which to determine whether 
 he should be definitely haled up for impeachment. 64 
 
 Powerful influences now exerted themselves to save Wat- 
 rous. Caleb Gushing came forward to act as Watrous' attor- 
 ney. It was an era when corruption was rampant at Washing- 
 ton; when committees of Congress were constantly reporting 
 testimony that in tariff, railroad and other legislation, large 
 amounts in bribery had been expended and received. 65 No 
 one can read the elaborate testimony in Watrous' impeach- 
 ment action without feeling convinced that the charges were 
 more than adequately proved, notwithstanding the fact that 
 most of the witnesses summoned were Texas lawyers, and 
 they demurred at testifying. 
 
 The vote of the committee hearing the charges was divided 
 
 03 Report No. 54, First Session, Thirty-fifth Congress, 11-12. 
 
 G4 The Congressional Globe, Part I, Third Session, Thirty- fourth 
 Congress, pp. 542 and 627-628. 
 
 05 For the array of specific facts, see the " History of the Great 
 American Fortunes," Vols. II and III.
 
 UNDER CHIEF JUSTICE TANEY 431 
 
 evenly. This, of course, ended the move to impeach him. The 
 committee, however, handed in both majority and minority re- 
 ports. The majority report apologetically said that the evi- 
 dence was insufficient, because of the reluctance of the wit- 
 nesses to tell all that they knew. The four minority members 
 reported that the charges stood proved ; that Judge Watrous 
 with other persons had embarked in schemes involving im- 
 mense tracts of land ; that fraudulent and collusive suits were 
 brought in his court ; that he had procured improper testimony ? 
 and that he had decided those suits in his own favor. 00 
 
 General Sam Houston's Denunciation. 
 
 The scandal resulting from Judge Watrous' escape from 
 impeachment was the cause of Senator Houston's indignant 
 speech of February 3, 1859. Inasmuch as the facts and doc- 
 uments in that speech comprise a volume in themselves, ref- 
 erence can be made here to certain cogent and relevant parts 
 only. Senator Houston gave the history of the fraudulent 
 operations of Watrous and his partners in minute detail, cit- 
 ing court records and other documents, and reading the actual 
 correspondence of different members of the clique with one 
 another. Speaking of the Peter's colonization syndicate 
 (which acquired as we have related, 1,088,000 acres vested in 
 its own name, and 879,920 acres mostly in the names of al- 
 leged settlers), Sam Houston proceeded: 
 
 " It further appears that the Hon. Caleb Gushing was em- 
 ployed as the attorney of this association, which is known to 
 have numbered among its members men of the highest station 
 and most powerful influence in the land ; and that when ele- 
 vated to the high office of Attorney-General of the United 
 vStates, he gave an extra-judicial opinion in favor of the claim 
 of the company which will be found in the published ' Opin- 
 
 60 Reports of Committees, First Session, Thirty-fifth Congress, 1857- 
 58, Report No. 54: 14.
 
 432 HISTORY OF THE SUPREME COURT 
 
 ions of the Attorney-General.' OT I mention this only to illus- 
 trate the ramifications of the influences brought to sustain 
 Judge Watrous. . . ." It may here be observed that this 
 was the same Caleb Gushing who probably then, and certainly 
 later, was so influential in pushing the appointment of Su- 
 preme Court Justices. 
 
 Then came an astonishing revelation, directly reflecting upon 
 the integrity of the Supreme Court of the United States. 
 
 Williams' Letter on "Striking" the Supreme Court. 
 
 " It ought to have been supposed," Senator Houston went 
 on a little later, in describing the conspiracy to get fraudulent 
 land certificates validated, " that after the judgment of the 
 supreme court of Texas, the high court of appeals, and finally, 
 after the decision of the Supreme Court of the United States, 
 against the validity of the certificates, further efforts on the 
 part of the company would have been hopeless. But what 
 vitality, what ramifications, what resources must they have 
 possessed, when we find them daring at the last, as I shall 
 show, to anticipate exerting an influence on the United States 
 Supreme Court itself! This certainly was a fitting climax 
 to audacity and assertion of power. Thus we find this branch 
 of the scheme of the conspirators expiring with an adventur- 
 ous and desperate effort to retrieve their fortunes by improper 
 influences with the courts; the last effort still characteristic, 
 and still significant of the comprehensive grasp and connec- 
 tions of this most' extraordinary combination. 
 
 " As exposing the honest proposition of exerting an influ- 
 
 67 See, "Opinions Of The Attorney-General for the U. S.," Vol. 
 VIII : 522-546. The question concerned the point whether an act 
 passed by the Texas Legislature, in 1852, granting to the Peter's con- 
 tractors (The Texas Land and Emigration Company) 1700 sections of 
 land, to be located where it chose, was constitutional. As Attorney- 
 General, Gushing reported that the act was constitutional, and that the 
 Peter's Company had rights which it could assert in the Supreme Court 
 of the United States.
 
 UNDER CHIEF JUSTICE TANEY 433 
 
 ence on the Supreme Court of the United States, I will here 
 read a letter from Mr. Joseph L. Williams on this subject, to 
 whom, it appears, was and is allotted the Washington branch 
 of the company's operations." 
 
 The letter was dated Washington City, November I, 1851. 
 Senator Houston did not state the name of the person to whom 
 it was addressed. The last paragraph of Williams' letter 
 read: 
 
 " I find much of your matter of reliance in the big suit in 
 Bibb's reports. This casually led me the other day to bring 
 
 the case to the notice of . He seems perfectly familiar 
 
 with every precedent and doctrine applicable to this case, and 
 he says it is quite impossible for the Supreme Court, on de- 
 liberate review and consideration, to abandon right, reason, 
 and casual law, on account of one casual act of stultification 
 at the last term. I shall not omit the part of striker unth cer- 
 tain members of the court, which I told you I ivould see to. 
 I am already here for the purpose. I will persuade Catron, 
 of Tennessee, to take the case under his especial charge." 68 
 
 To act the part of a " striker," meant to influence unduly or 
 corruptly. 09 Of this letter one of two constructions is allow- 
 able: Either Williams was vapidly boasting, or he knew his 
 ground. He stated that he had gone to Washington for the 
 particular purpose of influencing " certain members of the 
 court." This pointed statement, by itself, was serious 
 enough. But he specifically mentioned Associate Justice Ca- 
 tron as the one especial member whom he would persuade to 
 take supervision of the case, signifying that he looked to 
 Catron particularly to see to it that a favorable decision should 
 be rendered. 
 
 If untrue, the statements in Williams' letter were malignant 
 
 08 The Congressional Globe, Part I, Second Session, Thirty-fifth Con- 
 gress, 1858-59: p. 775. The italics appear in the Congressional Globe. 
 
 oa Thus, a " strike " bill is one introduced in a Legislature with a 
 definite purpose of forcing the corporation or individual to whom it is 
 hostile to yield tribute for its defeat or suppression.
 
 434 HISTORY OF THE SUPREME COURT 
 
 and inexcusable attacks not only upon Justice Catron but upon 
 the whole Supreme Court. Were that so, the Supreme Court 
 would have been justified in haling Williams up for libel and 
 punishing him severely, and Justice Catron should have imme- 
 diately instituted suits, civilly and criminally. 
 
 Supreme Court Did Not Reply. 
 
 But no such development ever happened. Senator Hous- 
 ton's speech was given wide publicity ; and published in the 
 permanency of a volume, it had a considerable circulation. 
 Instead of replying, all of the parties inculpated in that speech 
 seemed anxious to hush the matter as soon as possible. In 
 concluding his remarks Senator Houston said that elaborate 
 as were the details he had given they, after all, were only a 
 sketch of the whole of the facts, and he intimated that he had 
 more in reserve. Evidently, the prudent counsel prevailed 
 of keeping " dignified silence," and not pushing him too far by 
 making any retort calculated to arouse him again. 70 
 
 Senator Houston, it was clear, was holding back much strik- 
 ing information. These suppressed facts, exposing the in- 
 consistency of the Supreme Court of the United States in val- 
 idating certain private land claims, while rejecting others, 
 would, if published in sequence, have reflected severely not 
 only upon many of Houston's most distinguished colleagues in 
 the Senate, but upon Congress itself. 
 
 Thus for example, United States Senator Judah P. Benja- 
 min of Louisiana, one of the most powerful politicians in the 
 
 70 Here we shall leave the subject of fraudulent f Texas land certifi- 
 cates. By 1863, an aggregate of 41,956,202 acres in Texas had been 
 patented to individuals or corporations. This amount did not include 
 the 22,492,057 acres patented under alleged Spanish and Mexican grants 
 and contracts. How much of the 41,956,202 acres was based on fraudu- 
 lent certificates, it is impossible to say. " Many of them," reported a 
 Commissioner of the General Land Office later, " were subsequently 
 established apparently through judicial decree. Many of these decrees 
 were not written in a courthouse."
 
 UNDER CHIEF JUSTICE TANEY 435 
 
 country, was at that very time introducing a bill to validate 
 a number of private land claims for some of which he had been 
 attorney. These particular claims could not be confirmed by 
 the Supreme Court of the United States. They had been ex- 
 plicitly declared void by an act of Congress, in 1804, as having 
 been fraudulently granted by Governor Morales, at the very 
 period when the United States was taking over the sovereignty 
 of Louisiana and parts of what was called West Florida, and 
 when the United States claimed jurisdiction over the section 
 in which the alleged grants were made. 
 
 Senator Benjamin had argued in court as counsel for some 
 of these claimants. In 1858 Senator Benjamin, as chairman 
 of the Senate Committee on Private Land Claims, submitted 
 a bill in behalf of the claimants, which bill became a law on 
 June 22, 1860. Among the claims validated by this act were 
 the Reynes claim to 40,000 arpents in the Baton Rouge dis- 
 trict, Louisiana ; several other claims respectively embracing 
 32,000 and 40,000 arpents, in the same State ; and a consider- 
 able number of other claims in Louisiana, Florida, Arkansas, 
 Missouri and other States. These claims, confirmed by act 
 of Congress, of June 22, 1860, embraced an aggregate of about 
 600,000 acres. 71 
 
 Similar circumstances surrounded the De Bastrop claim. 
 This was an alleged grant made by Carondelet in 1796 or 1797, 
 
 71 See the remarkable history of these claims, and of their final val- 
 idation, in U. S. vs. Lynde, XI Wallace's Reports, 632-647, in which 
 Senator Benjamin's activities are clearly described. There was a close 
 identity of interest between the land appropriators and the original 
 railroad promoters ; they were often the same persons. Senator Benja- 
 min was one of the foremost promoters of the New Orleans, Jackson 
 and Great Northern Railroad, and was chairman of its board of di- 
 rectors. (See, Butler's "Judah P. Benjamin," pp. 134-136.) As for 
 John W. Lapsley, partner and accomplice of Watrous, he was president 
 of the Alabama and Tennessee Railroad Company (see, 53 Alabama 
 Reports, 257) which received a large land grant, later confirmed by 
 act of Congress, May 23, 1872. Lapsley was also a director of the 
 Selma and Gulf Railroad Company (45 Alabama Reports, 698). Many 
 of the railroad promoters obtained such sums as were invested by them 
 from land frauds.
 
 436 HISTORY OF THE SUPREME COURT 
 
 to Baron De Bastrop, of a tract of twelve leagues square, or 
 1,016,264 arpents, in the Ouchita and Bayou Siard districts, 
 Louisiana. In 1807, Edward Livingston bought a sixteenth 
 interest in the claim and sold a large part of it to Stephen 
 Wante; Robert R. Goelet obtained other parts, and Stephen 
 Girard bought more than 200,000 acres of the claim. The 
 Board of Land Commissioners rejected the claim, and al- 
 though potent influences assiduously tried to get a confirma- 
 tion from Congress, that body for fifty years refused to con- 
 sider it. 
 
 Girard bequeathed his estate to the cities of New Orleans 
 and Philadelphia. These cities brought suit to have the claim 
 validated, and succeeded in the lower courts. When the case 
 came up on appeal before the Supreme Court of the United 
 States, in 1850, Attorney-General Crittenden contended that 
 (supposing that a concession to De Bastrop had been really 
 made), the claimants not only did not produce the original 
 concession but failed to bring forward an authentic copy and 
 that they did not even allege the loss of the original. On these 
 grounds the Supreme Court (Justice Catron writing the ma- 
 jority opinion) reversed the lower court and rejected the 
 claim. 72 But it was validated by act of Congress, in 1854. 
 
 At the same time Justice Catron wrote another majority 
 opinion, rejecting the Boisdore claim, alleged to have been 
 granted by Governor-General Miro in 1783, in what is now 
 the State of Mississippi, as " a grant of land for a cow pas- 
 ture." The holders of this alleged grant claimed an area of 
 from 100,000 to 400,000 acres. Notwithstanding the fact 
 that Boards of Land Commissioners and Congress had, for 
 forty years, consistently refused to recognize the claim as cov- 
 ering more than 1280 acres, the claim in full was validated 
 by the U. S. District Court in 1845. The Government ap- 
 
 72 See, Case of U. S. vs. Cities of Philadelphia and New Orleans, XI 
 Howard, 609-661. Justices McLean, Wayne, McKinley and Grier dis- 
 sented. See, also, U. S. vs. Louise Livingston, widow of Edward 
 Livingston, and U. S. vs. Callender, Ibid., 662-663.
 
 UNDER CHIEF JUSTICE TANEY 437 
 
 pealed. When the case was argued before the Supreme Court 
 of the United States in 1850, Attorney-General Crittenden 
 sardonically exclaimed, " Boisdore never dreamed of such 
 a magnificent principality for his cow pen as is 
 claimed . ! " 73 
 
 The Court's Record Did Not Belie Houston. 
 
 Justice Catron's decisions in 1842, in a number of Florida 
 land claims the Low, Hanson, Atkinson and others val- 
 idating various claims of 15,000 and 16,000 acres each (XVI 
 Peters, 166 etc.) had been subjected to sharp criticism. 
 Contested by the Government, those claims had been confirmed 
 by the Supreme Court of the United States, although some of 
 the claimants had not even taken the trouble to be represented 
 by counsel. But the majority opinions (cited above) deliv- 
 ered by Justice Catron and his dissenting opinion in the 
 California land cases, would not seem to justify the implifica- 
 tion that he, at least, was tampered with or was susceptible 
 to illicit influences. Perhaps there were underlying develop- 
 ments and circumstances like those of the Dred Scott case, 
 of which no hint appears in the formal records. But what 
 does appear in the records indicates (so far as the Supreme 
 Court as a whole was concerned) the drift of matters lucidly 
 enough. 
 
 When Mussina applied to the Supreme Court of the United 
 States, in December, 1857, for a mandamus compelling Judge 
 Watrous to allow him an appeal in the Cavazos case, the Su- 
 
 73 U. S. vs. Boisdore, XI Howard, 63-104. Justices McLean, Wayne 
 and McKinley dissented. Governor-General Miro was the official whose 
 name was forged to so many documents in Arkansas. Justices McLean, 
 Wayne, McKinley and Grier had also dissented when Chief Justice 
 Taney and a majority refused to confirm the notorious Maison Rouge 
 claim. This was a claim to thirty square leagues, or 1,044,000 acres in 
 western Louisiana, alleged to have been granted by Governor-General 
 Carondelet, in 1795. Chief Justice Taney denounced the alleged grant 
 as forged and antedated. See, III Howard, 785, and VII Ibid., 833.
 
 438 HISTORY OF THE SUPREME COURT 
 
 preme Court (Justice McLean writing the opinion) denied 
 his application, on the ground that Watrous had submitted 
 an explanation and that the court was bound to accept it ! 74 
 Ten years later, another suit brought by Mussina against 
 Cavazos was dismissed by the Supreme Court of the United 
 States because of this extraordinary discovery: That when 
 Mussina's counsel in the court below had filed a bill of excep- 
 tions the judge had not signad and sealed it. This formality 
 not having been complied with, the Supreme Court refused to 
 consider Mussina's petition. 75 
 
 On the other hand, in the suit of Spencer vs. Lapsley over 
 the alleged La Vega grant, we see the Supreme Court of the 
 United States upholding Watrous' decision by deciding, in 
 1857, in favor of Lapsley. It was well known that Lapsley 
 was an integral member of the Watrous clique, and that he 
 had originally assumed a residence in Alabama in order to 
 bring the suit in Watrous' court. Hughes and Hale appeared 
 as his attorneys in the Supreme Court. In a dissenting opin- 
 ion, Justice Daniel declared that the alleged La Vega deed in 
 question was spurious, denounced the whole transaction, and 
 showed that Judge Watrous had a personal interest in the 
 case, and should therefore have been disqualified from sit- 
 ting. 76 
 
 These were three of a series of suits occasioning no little 
 scandal. In other feigned cases arranged by the Watrous 
 clique, the lawyers for that clique, Hale, Robinson, and 
 Hughes, were invariably in evidence, often appearing col- 
 lusively on opposite sides ; 77 the facts were patent but the Su- 
 preme Court of the United States closed its eyes. 
 
 74 XX Howard's Reports, 280-290. 
 
 75 vi Wallace's Reports, 355-363. 
 7 XX Howard, 264-280. 
 
 77 See, for example, Case of League vs. Atchison, VI Wallace's Re- 
 ports, 112-116. This was an action by League to recover a lot in 
 Galveston which both parties claimed under the Galveston City Com- 
 pany. Robinson and Hale represented League. Upon the Texas statute 
 of limitations that a suit to recover real estate must be brought within
 
 UNDER CHIEF JUSTICE TANEY 439 
 
 The area of land obtained by the Watrous combination was 
 large and of great value, but the exact outcome of all their 
 schemes it is not possible to trace here to the end. 
 
 But one fact is absolutely certain: By 1860, patents for 
 great areas of land had been issued under the Powers and 
 Hewitson contract and under many other grants in which 
 Watrous, League and associates were openly or surrepti- 
 tiously interested. 78 And already, by the year 1858, accord- 
 ing to a report of a joint select committee of the Texas Legis- 
 lature, not less than 68,000,000 acres of Texas lands were 
 patented to individuals, largely absentee capitalists. The 
 committee complained that 21,000,000 acres escaped taxation. 
 " We find millions of acres of fertile soil," it reported further, 
 " lying over Texas, upon which the owners (the greater part 
 of whom we believe to be non-residents) are wilfully and 
 knowingly failing and refusing to pay taxes." V9 Elected 
 Governor of Texas, General Sam Houston stated to the Leg- 
 islature, on February 8, 1860, that " his energies had been 
 devoted to trying to put a stop to the legislating away of pub- 
 lic lands," and " towards overturning corruption and arresting 
 abuses, but at every step, he [Houston] has been met by diffi- 
 culties almost insurmountable." 80 If this corruption was so 
 actively and successfully employed in Texas, is it not reason- 
 able to suppose that it was equally so at Washington? 
 
 three years, Justice Grier (writing the opinion of the Supreme Court 
 of the U. S. ) reversed the lower court, and decided in favor of League. 
 See, also, Case of Cavazos vs. Trevino, VI Wallace, 773. Trevino, as 
 Senator Houston had shown, was one of the clique's tools. Also, 
 McKinney vs. Saviego, XVIII Howard, 235, in which Hale appeared for 
 McKinney. and Hughes for Saviego. 
 
 78 See, " Abstract of Patented Titles, etc., from the Records of the 
 General Land Office, Austin, 1860": pp. 1237, etc. 
 
 79 < Official Journal, House of Rep., Texas, Seventh Biennial Ses- 
 sion," 483-484. 
 
 80 Journal of the Senate, State of Texas, 1860: p. 545.
 
 CHAPTER XI 
 
 THE SUPREME COURT UNDER CHIEF JUSTICE TANEY 
 (CONTINUED) 
 
 During the range of years covered by the latter part of 
 the preceding chapter, the course of the Supreme Court of the 
 United States was signalized by two other distinct lines of 
 action, as standing out conspicuously in its mass of decisions : 
 
 I. The validation of private claims to millions of acres of 
 the most valuable lands in California. Of the 8,150,143 acres 
 of these lands obtained by individuals under the form of 
 private land claims, a great part was presented by decisions 
 of the Supreme Court under Chief Justice Taney. 
 
 II. The issuance of the edict, in the Dred Scott case, that 
 all laws interfering with the slavery of negroes were uncon- 
 stitutional and void, and that the negro was devoid of any 
 civil rights which the white man was bound to respect. 
 
 With each of these events we shall deal in consecutive, al- 
 though not strictly chronological, order. Before doing so, 
 however, it is necessary to describe a certain change in the 
 personnel of the Supreme Court, and the important transition 
 it signified. 
 
 Justice Curtis Ascends to the Bench. 
 
 Justice Levi Woodbury had died in 1851. His successor, 
 appointed by President Fillmore, in 1851, was Benjamin R. 
 Curtis, of Boston. At the time of his appointment Curtis 
 was only forty-two years old. Compared to the ages of 
 nearly all of the other Justices when commissioned to the Su- 
 
 440
 
 UNDER CHIEF JUSTICE TANEY 441 
 
 preme Court bench, Curtis was remarkably young. To what 
 merit or factor did he owe his appointment ? 
 
 His elevation to the Supreme Court was an event of the 
 greatest significance, although its fundamental importance was 
 not then clearly seen. 
 
 For more than half a century the appointees to the Supreme 
 Court had been either owners of landed estates or attorneys 
 for land claims and schemes, men almost invariably com- 
 bining in their persons, views and interests the representation 
 of the land-owning class. But within a few decades, great 
 economic changes had taken place. Two new and mighty 
 factors had gradually asserted themselves. The first of these 
 was the manufacturing interest; the second, the railroad 
 power. The latter, at the time of Curtis' appointment, was 
 in its infancy, but, nevertheless, it had already become power- 
 ful enough to insist that it have its representative on the 
 Supreme Court bench. The power of the railroad corpora- 
 tion, however, was not then a distinct one, as it subsequently 
 became under the dominance of such dictatorial rulers as 
 Commodore Vanderbilt, Jay Gould, Russell Sage, Collis P. 
 Huntingdon, Leland Stanford and their kindred potentates. 1 
 At that era landed, banking, manufacturing and railroad in- 
 terests were more or less interassociated ; the promoters and 
 directors of many of the original railroads were men who had 
 made their profits from land speculations, manufacturing, 
 trading, commerce and banking. The time was still somewhat 
 distant when forceful, arbitrary, super-unscrupulous men 
 such as Vanderbilt and Gould seized great lines of railroad 
 systems, originally owned by a medley of interests, and con- 
 centrated their control in themselves. 
 
 Curtis' appointment, therefore, was an exact reflex of con- 
 ditions at the time of his selection. He had studied law at 
 Harvard under Justice Story, who was a lecturer at that Uni- 
 
 1 The growth of the railroad interest is fully described in a later 
 chapter.
 
 442 HISTORY OF THE SUPREME COURT 
 
 versity. From 1836 to 1851 Curtis, as an attorney, had rep- 
 resented a great number of commercial firms, insurance com- 
 panies, shippers, banks, manufacturing corporations and canal 
 and railroad companies. Specifically, he had been attorney 
 for the Oriental Bank and the Tremont Bank, of Boston, and 
 for other banks ; 2 he had represented the Western Railroad 
 corporation, 3 the Boston and Maine Railroad, 4 the Boston and 
 Providence Railroad corporation, 5 the Boston Manufacturing 
 Company and a variety of other corporations. In the biog- 
 raphy of Curtis, edited by his son, we are told that his income 
 had been as large as that of any other lawyer in New England, 
 and that in 1851 the year of his appointment to the Su- 
 preme Court he had bought a valuable estate of three hun- 
 dred acres at Pittsfield, Massachusetts, where he built a 
 splendid mansion. 
 
 In the same work we are also informed that Curtis' appoint- 
 ment was recommended to President Fillmore by Daniel 
 Webster, then Secretary of State. Although having a large 
 private income from his corporation practice, Webster's habits 
 were such that he was generally in an impecunious state. 
 Periodically, the Lawrences and other cotton manufacturers 
 would come to his relief ; he seems to have been regularly sub- 
 sidized by them. " On several occasions," says Ben Perley 
 Poore, referring to Abbot Lawrence, " a large cotton lord," 
 and a principal owner of the great Fall River Mills, " he had 
 been one of ' the solid men of Boston,' who had contributed 
 considerable sums for the pecuniary relief of Mr. Webster." 7 
 
 2 See, Metcalf's Reports (Supreme Court of Mass.), Vols. Ill and 
 IV: pp. 581, etc., Cushing's Reports, Ibid., 142, etc., etc. 
 
 3 Cushing's Reports (Supreme Court of Mass.), Vol. Ill: 270. In 
 this case he had successfully prevented an injured railroad brakeman 
 from recovering damages from the company. 
 
 4 III Cushing's Reports, 25 and 58, and V Ibid., 375. 
 
 5 VI Gushing, 424. 
 
 6 " The Life and Writings of B. R. Curtis, Edited By His Son," Vol. 
 
 I: 154- 
 
 7 " Reminiscences," Vol. 1 : 287. Webster was one of the foremost 
 politicians in advocating a high protective tariff.
 
 UNDER CHIEF JUSTICE TANEY 443 
 
 These donations were gratefully received by Webster. 
 
 Working-Class Conditions. 
 
 The period was one of astonishing activity on the part of 
 the working class, and issues were constantly arising which 
 employers looked to the courts to settle. The attempt to have 
 the strike declared by the courts illegal and a conspiracy had 
 failed, but the demand for a shorter workday was bitterly 
 resisted. The owners of the cotton mills were amassing im- 
 mense fortunes ; as fast as more improved labor-saving 
 machinery was installed, production was increased and wages 
 were reduced. A large proportion of the employes in the 
 Lowell mills were women and children. 
 
 In the Voice of Industry, a labor paper published at Fitch- 
 burg, Massachusetts, in 1845, a typical instance of conditions 
 is given in the statement of a frail girl of eight or nine 
 years old : " I go to work before daylight in the morning and 
 never leave it until it is dark, and don't make enough to sup- 
 port mother and baby." Referring to the increase of two 
 hundred per cent, in the cotton-mill dividends in a single year, 
 and the corresponding decrease of twelve and a half per cent, 
 in the wages of women and children, the Voice of Industry 
 said : 
 
 " In this state of things the bounty offered to manufacturers 
 by the tariff induced many of the wealthy men of New Eng- 
 land to invest their capital in manufactures, which, when the 
 tariff has been high, proved exceedingly profitable, concen- 
 trating great wealth in the hands of a few, whilst the laboring 
 part of the community has increased rapidly, until the demand 
 for employment exceeds the want of the employers, which 
 has enabled them to reduce the wages of the operatives whilst 
 their own profits were very largely increased, and this reduc- 
 tion of wages must continue to go on with the increase of the 
 class of society who depend upon employment for subsistence, 
 until they arrive at a point which will barely afford such neces-
 
 444 HISTORY OF THE SUPREME COURT 
 
 sities as will enable the human system to undergo its daily 
 toil." 
 
 One organization after another was formed either by the 
 workers themselves, or by humanitarian sympathizers. " The 
 dollar," stated the New England Protective Union, in 1845, 
 " was to us of minor importance ; humanitary and not mer- 
 cenary were our motives." And it went on : " Man's mus- 
 cles are now made to compete with iron machines that need 
 no rest, that have no affections, that eat no bread. Why if 
 he that produces everything not only destitute of the luxuries 
 but of the common comforts of life, to say nothing of a shel- 
 ter he may call his own ? " As to the conditions of the work- 
 ers, the Union said that, " Lamentable as is the condition of 
 the laboring men, that of the women is worse and increasingly 
 so." The early development of the cooperative idea is seen 
 in its declaration, " We must proceed from combined stores 
 to combined shops, from combined shops to combined houses, 
 to joint ownership in God's earth, the foundation that our 
 edifice must stand upon." These lofty aspirations were ac- 
 companied by a strong denunciation of the fugitive slave law 
 " as an infamous act, fitted to be trampled under the foot of 
 every lover of justice and liberty." 
 
 The New England Workingmen's Association was formed 
 at the same time to combat prevalent conditions of society 
 under the arrangements of which " labor is and must be the 
 slave of wealth," and " the producers of all wealth are de- 
 prived, not merely of its enjoyment, but also of the social and 
 civil rights which belong to humanity and the race." Every- 
 where the workers were rising, and as fast as they formed 
 organizations, the employing capitalists sought to intimidate 
 them and disrupt their organizations by discharging the lead- 
 ers from work, and reducing them to beggary. 
 
 A call for a Workingmen's Meeting in New York, on July 
 16, 1845, stated that there were 65,000 paupers in New York
 
 UNDER CHIEF JUSTICE TANEY 445 
 
 City alone, and that one-sixth of the entire population was in 
 a condition of pauperism; that the white labor of the North 
 was in a worse state than the slave of the South. A demand 
 of Pittsburg and Alleghany City cotton-mill workers on June 
 1 6, 1845, f r a ten-hour, instead of a twelve-hour, workday, 
 was met with the reply that the adoption of such a system was 
 impracticable so long as the Eastern factories ran seventy-two 
 hours a week. 
 
 The first Industrial Congress of the United States convened 
 at New York, on October 12, 1845. It declared that " it is a 
 well-known fact that rich men, capitalists and non-producers 
 associate to devise means for securing to themselves the fruits 
 of other men's labors " ; therefore, farmers, mechanics and 
 wqrkingmen ought to organize. The preamble also declared 
 that further traffic in land by the Government should cease, 
 and that the public lands should be made free to actual set- 
 tlers, so that every man, woman and child in the nation should 
 have a home. It denounced the existing system of factory 
 labor, as withering life's energies, even in childhood, causing 
 physical deformity because of excessive toil, and depriving 
 workers of the opportunity to acquire cultivation, and at the 
 same time, producing deterioration of both mind and body. 
 
 In 1845 and 1846 great meetings of the workers in Lowell, 
 Chicopee, Manchester, New York City and Philadelphia 
 demanded a ten-hour day. In these agitations girls and 
 women were as aggressive as the men. To supply the places 
 of these agitators the Chicopee mill owners resorted to this 
 device: They sent a long black wagon to make regular trips 
 in Massachusetts, Vermont and New Hampshire, paying the 
 man in charge a dollar a head (or more according to distance 
 traveled) for every girl he secured. Farm girls, it was 
 charged, were thus enticed on the representations that the work 
 " was very neat, wages high, and that they could dress in silks 
 and spend half the time in reading."
 
 446 HISTORY OF THE SUPREME COURT 
 
 Land Grabbing and Negro Slavery Denounced. 
 
 The Laborers' Union memoralized Congress to put an end 
 to the traffic in the public lands. " This system," it protested, 
 " is imported into this country from Europe, and is fast de- 
 basing us to the condition of dependent tenants, of which con- 
 dition a rapid increase of inequality, misery, pauperism, vice 
 and crime are necessary consequences. . . ." In 1846, 
 the New England Workingmen's Convention, at Lynn, Mass., 
 declared that " there are at the present time three millions 
 of our brethren and sisters groaning in chains on the Southern 
 plantations . . . ," and called upon " our brethren to 
 speak out in thunder tones, both as associations and individ- 
 uals, and to let it no longer be said that Northern laborers, 
 while they are contending for their rights, are a standing 
 army to keep three millions of their brethren and sisters in 
 bondage at the point of the bayonet." 
 
 These are a few of a large assemblage of facts showing the 
 unrest and agitation among the workers at the time, and their 
 spirit, views and purposes. Year after year the movement 
 grew ; strike succeeded strike ; the ten-hour day was finally 
 won after heroic struggles in which starvation was a common- 
 place. But for the great contest for the emancipation of the 
 negro slaves, which soon overshadowed, and partially ab- 
 sorbed, the labor agitation in the North, the movement would 
 have gone much further, despite every repressive measure 
 that the capitalists used. But it was already formidable 
 enough, and employers generally foresaw that it contained 
 potentialities certain to produce great conflict in future times. 
 Even then they perceived that it was necessary for them to 
 mold the courts in such a shape that the activity and actions 
 of the workers would be more and more restricted by judi- 
 cial constructions, orders and usurpations. 
 
 Justice Curtis' habit of ffank letter-writing gives us some 
 insight into the methods of the Supreme Court of the United
 
 UNDER CHIEF JUSTICE TANEY 447 
 
 States. Writing from Washington, February 29, 1852, Jus- 
 tice Curtis informed Tickrior: "Judge Catron will give the 
 opinion of the court in Mrs. Games' case to-morrow. In this 
 opinion I unite with Nelson and Grier. Wayne and Daniel 
 dissent, on account of an interest, in some way, which some 
 of their relatives have. . . ." 8 
 
 One of the traditions of the Supreme Court, constantly re- 
 peated for the edification of the public, was that the strictest 
 precautions were taken to guard against advance information 
 of decisions being given out. Here, however, was one of the 
 Justices conveying information of precisely that character. 
 Quite true, Curtis was writing to one whom he regarded as a 
 confidant, but, as we shall see, the same leakage happened in 
 the Dred Scott case. This being so in at least two known 
 instances, it is within the bounds of possibility that it took 
 place in other decisions, possibly affecting stock-market oper- 
 ations, in which advance information, of only a day's notice, 
 could be transmuted into fortunes. 
 
 In the same letter, Curtis described Justices McLean and 
 Wayne as the " most high-toned Federalists on the bench." 
 Elsewhere he noted that McLean hoped to be a candidate for 
 ihe President of the United States. 9 He thus confirmed what 
 ;vas often publicly charged that more than one member of 
 the Supreme Court was incessantly playing politics, and seek- 
 ing to ingratiate himself into the favor of every powerful 
 interest which could be used in advancing political ambitions. 
 This was especially and notoriously true of McLean, who, 
 having the good-will of the capitalists of his own region, sought 
 also that of th*e slave-owning power. 
 
 f"The Life and Letters of B. R. Curtis," etc., Vol. I: 168. This 
 suit involved title to property of immense value in New Orleans. 
 The footnote in the Case of Charles Patterson vs. Gaines and Wife, 
 VI Howard's Reports, 550, reads : " Mr. Justice Taney did not sit in 
 this cause, a near family relative being interested in the event. Mr. 
 Justice McLean did not sit in this cause." It is not explained who the 
 
 relative was. The decision went against Mrs. Gaines. 
 " Life and Letters of B. R. Curtis," etc., Vol. I : i< 
 
 168 and 180.
 
 448 HISTORY OF THE SUPREME COURT 
 
 Curtis as a Corporation Attorney. 
 
 In view of the fact that decisions validating claims of 
 enormous magnitude in Texas, California and other sections 
 in favor of individuals and corporations were handed down 
 by the Supreme Court of the United States largely during 
 the time Curtis was on the bench, from 1851 to 1857, his sub- 
 sequent career may be appropriately commented upon here. 
 He was one of the few Justices, in good or bad health, who 
 ever resigned from the Supreme Court; his son tells us that 
 from the date of his resignation in 1857, to his death in 1874, 
 he gathered in about $650,000 from professional services, 10 
 a sum equal in value to many times that amount in present 
 days. After he had resumed the practice of law, he repre- 
 sented a large galaxy of corporations, some of which were the 
 identical corporations issues affecting which had been decided 
 by the Supreme Court. He represented the Boston and 
 Maine Railroad, the Fitchburg Railroad, the Grand Junction 
 Railroad and Depot Company, the Eastern Railroad Com- 
 pany, the Adams Express Company, the Galveston Railroad 
 Company, James Lawrence of the Middlesex Mills, the Boston 
 Water Power Company, the Boston Gas Light Company, the 
 Hudson Iron Company and many other corporations. 11 Fre- 
 quently he also appeared for stockholders and other capitalists 
 in suits against corporations, and on several occasions was re- 
 tained by the United States to contest land claims. Wherever 
 a large fee was to be had, there Curtis was to be found, no 
 matter what the nature of the case was, or whoever his client. 
 Beyond doubt, he was one of the most frequently employed 
 and best-paid corporation attorneys of his day; few lawyers 
 represented so wide a variety of corporate interests. 
 
 10 " Life and Letters of B. R. Curtis," etc., Vol. 1 : 268. 
 
 11 See, XIV Gray's Reports (Supreme Court of Mass.), 553 ; 103 Mass. 
 Rep., 254 and 259; 107 Mass. Rep., 15; XT Wallace's Reports, 459; 83 
 Mass. Reports (I Allen), 339; 91 Mass. Rep., 466; 96 Mass. Rep., 444; 
 102 Mass. Rep., 45, etc., etc.
 
 UNDER CHIEF JUSTICE TANEY 449 
 
 Organized Forgery in California. 
 
 The Mexican War resulted in the cession to the United 
 States, in 1848, of the present States of California, Nevada, 
 Utah, part of Colorado, and the whole of the Territories of 
 Arizona and New Mexico, except the Messilla Valley. This 
 domain comprised 334,000,000 acres. 
 
 In anticipation of this cession, the same process of forging 
 and antedating land claims which had proved so generally and 
 signally successful in the Louisiana Purchase, and in Florida 
 and Texas, was industriously carried on in California and in 
 other parts of the Mexican cession. 
 
 Reporting to Congress in 1860, United States Attorney- 
 General Black described how he had ordered the Mexican 
 archives to be collected, and he set forth the details of that 
 investigation. " The archives thus collected," he wrote, " fur- 
 nished irresistible proof that there had been an organized 
 system of fabricating land titles carried on for a long time 
 in California by Mexican officials; that forgery and perjury 
 had been reduced to a regular occupation ; that the making of 
 false grants, with the subornation of false witnesses to prove 
 them, had become a trade and a business. . . . There was 
 also compiled from the records here a faithful chart of all of 
 the professional witnesses or persons supposed to have hired 
 themselves out to do the business of false swearing of claims. 
 To-day full biographies of nearly all of the men who have 
 been engaged in these schemes of imposture, from governors 
 down to the lowest suborned witnesses, can now be furnished 
 whenever necessary." 
 
 Black went on to say : " It must be remembered that the 
 grants in most of these fraudulent cases were very skilfully 
 got up, and were supported by the positive oaths, not merely 
 of obscure men whose characters were presumed to be fair, 
 but also by the testimony of distinguished men, who had oc- 
 cupied high social and political places under the former gov-
 
 450 HISTORY OF THE SUPREME COURT 
 
 ernors The value of the lands claimed under grants 
 
 ascertained to be forged is $150,000,000." 12 
 
 But already, under a certain noted decision of the Supreme 
 Court of the United States, immense areas of the richest agri- 
 cultural, grazing, timber, water-front, mining and city lands 
 in California had been presented to a few capitalists. 
 
 Following the discovery of gold in California, there was 
 hardly a politician at Washington who was not engaged, di- 
 rectly or indirectly, in pushing land claims ; with vast riches 
 in sight, a feverish scramble set in to have a hand in the spoils. 
 This activity became so pronounced and caused so much scan- 
 dal, that to mollify indignant constituencies, Congress in 1853 
 passed a pretentious act, which, however remained a dead 
 letter. The act forbade, under penalties, any Government 
 official from acting as agent or attorney in prosecuting claims, 
 or from receiving any gratuity or interest in them. It forbade 
 members of Congress, under a penalty of fine and imprison- 
 ment, from doing the same, and it subjected any person who 
 attempted to bribe a member of Congress to fine and impris- 
 onment, and the acceptor of the bribe to forfeiture of his of- 
 fice. 
 
 Importance of the Fremont Case. 
 
 The particular case decided by the Supreme Court of the 
 United States serving as the great precedent in allowing land 
 grabbers to appropriate millions of acres in California and 
 elsewhere was that of Fremont vs. the United States. Fre- 
 mont turned up with a claim for a " floating grant " for ten 
 square leagues (44,386.33) acres, which he averred had been 
 granted by the Mexican Acting-Governor Micheltorena, in 
 1844, to Juan B. Alvardo, from whom Fremont claimed to 
 have bought it. By " floating grant " was meant one with 
 boundaries not described, but with power to locate anywhere. 
 
 12 Ex. Doc. No. 84, Thirty-Sixth Congress. Also, House Reports, 
 Third Session, Fortieth Congress, Report No. 261 : 544.
 
 UNDER CHIEF JUSTICE TANEY 451 
 
 If this grant were confirmed, Fremont and all others claiming 
 to hold similar grants could select the finest lands wherever 
 they chose. 
 
 The Government stubbornly contested Fremont's claim, con- 
 tending that it was a mere paper title or grant, and that the con- 
 ditions of settlement called for had never been carried out. 
 Fremont advanced the old, mildewed excuse that Indian hos- 
 tilities had prevented settlement. Accepting this excuse, on 
 precedents heretofore cited, the Supreme Court of the United 
 States, in December, 1854, confirmed Fremont's grant as 
 valid. 13 
 
 Chief Justice Taney, in delivering the majority opinion, 
 cited particularly the Arredondo decision, and held that when 
 made, the grant imparted a vested right, even though it had 
 not been confirmed by the Mexican Departmental Assembly, 
 as the law required. 
 
 Dissenting, Justices Catron and Campbell strongly de- 
 nounced the claim as one that had no standing and that abso- 
 lutely lacked both merit and equity. They pointed out that 
 not a single condition of the grant had been performed; that 
 it was admitted that the Mexican Government never would 
 have confirmed the claim ; and declared that " no bolder case 
 than the one before us can exist in California, where the grant 
 is not infected with fraud or forgery." 14 
 
 General John C. Fremont, the beneficiary of this decision, 
 had taken part in the conquest of California, and was United 
 States Senator from California in 1850-1851. He was the 
 Republican candidate for the Presidency in 1856. When he 
 commanded the Western department of the Federal army, at 
 St. Louis, during the Civil War, in 1861, the greatest frauds 
 were committed at that post in the purchase of munitions 
 and supplies. One particularly glaring example of these 
 
 13 Howard's Reports, Vol. XVII : 542-576. 
 
 14 Ibid., 571. A footnote in Howard reads: "Mr. Justice Daniel 
 did not sit in this cause" (p. 542).
 
 452 HISTORY OF THE SUPREME COURT 
 
 great frauds was that famous sale of condemned rifles (de- 
 scribed in Vol. Ill of the " History of the Great American 
 Fortunes," citing from the records). Five thousand of Hall's 
 carbines, condemned by the army officers as being so bad that 
 they would shoot off the thumbs of the soldiers who used 
 them, were sold to Arthur M. Eastman for $3.50 each, and 
 then resold to Fremont, for use in the army, at $22. The real 
 backer of this transaction was that great financial magnate of 
 later days J. Pierpont Morgan. When the Government 
 found out the spurious nature of the rifles and refused to pay 
 the full sum, Morgan brought suit. Under a later decision 
 of the Court of Claims the Government was forced to pay in 
 full, the court holding to the technicality that a contract was 
 a contract. These facts tend to illumine the character of Fre- 
 mont's dealings, and are well worth referring to in this descrip- 
 tion of the Fremont claim decision of 1854. 
 
 Land Claims Validated Under the Fremont Precedent. 
 
 Under this decision, the United States District Court in 
 California was compelled to confirm a great number of similar 
 claims. In thus confirming, in June 1856, Francisco Rico's 
 claim to eleven square leagues in Stanislaus County, Judge 
 Hoffman clearly expressed his suspicions of the genuineness 
 of the grant, but found himself forced to confirm it under the 
 precedent in the Fremont case. 15 Likewise in accordance with 
 the precedent in the Fremont case, Judge Hoffman could not 
 avoid confirming other grants, many of which had been re- 
 jected by the Board of Land Commissioners. Among the 
 claims confirmed under the Fremont ruling were : 
 
 Charles D. Semple's claim to eleven square leagues of land 
 on the Sacramento River. 16 
 
 15 U. S. vs. Rico, Hoffman's Reports : Land Cases, 1862 : 161-162. 
 Ibid., 37.
 
 UNDER CHIEF JUSTICE TANEY 453 
 
 Thomas O. Larkin's claim to eleven leagues of land on the 
 west bank of the Sacramento River. 17 
 
 George C. Yount's claim to one league of land in Napa 
 County. 18 
 
 Josefa Soto's claim to ten square leagues of land in Colusa 
 County. 10 
 
 Hiram Grimes' claim to eight leagues of land in San Joaquin 
 County. 20 
 
 Juan Perez Pachecho's claim to eleven leagues of land in 
 Mariposa County. 21 
 
 Andreas Pico's claim (one of a number of his claims) to 
 eleven square leagues of land in Calaveras County. 22 
 
 Charles M. Weber's claim to eleven leagues of land in San 
 Joaquin County. 23 
 
 The claim of the heirs of Anastasio Chabolla to eight 
 leagues of land in San Joaquin County. 24 
 
 Antonio Maria Pico's claim to eight leagues of land in the 
 same county. 25 
 
 James Noe's claim to five leagues of land in Yolo County. 26 
 
 Sebastian Nunez's claim to six leagues of land in Tuolumne 
 County. 27 
 
 And other claims of the same character. The claims above 
 
 " Ibid., 41. 
 18 Ibid., 43. 
 " Ibid., 68. 
 
 20 Ibid., 107. 
 
 21 Hoffman's Reports: Land Cases, 113. 
 
 22 Ibid., 117 and 188. The Calaveras County claim, however, was 
 subsequently voided by the Supreme Court of the United States. At- 
 torney-General Stanton had appealed the case, and clearly proved that 
 no such grant to Andreas Pico had ever been made by his brother. 
 Acting Governor Pio Pico. " It is a forgery," Stanton declared in 
 court. " The proof of this is powerful and overwhelming . . ." In 
 the face of this proof, the Supreme Court could not avoid invalidating 
 the claim. XXII Howard's Reports, 406-416. 
 
 23 Hoffman's Reports, etc., 126. 
 z *lbid., 130. 
 
 25 Ibid., 142. 
 2 Ibid., 162. 
 "Ibid., 197.
 
 454 HISTORY OF THE SUPREME COURT 
 
 mentioned comprised more than 550,000 acres of the richest 
 lands in California. 
 
 In confirming these grants, Judge Hoffman made severe 
 comments and more than implied that if he were not con- 
 fronted with the ruling of the Supreme Court of the United 
 States, in the Fremont case, he would have rejected most of 
 them. In his decision on the Pico eleven-league claim he ex- 
 pressed his suspicions of the authenticity of the grant, and in 
 the Nunez case he spoke of the strange testimony of the wit- 
 nesses as suspiciously like perjury. The Mexican laws, Judge 
 Hoffman said, imposed strict conditions upon all grants. Al- 
 though in the cases of many of the grants no settlement had 
 been made, and although the excuse advanced of Indian hos- 
 tilities preventing settlement was not satisfactorily shown, yet 
 he was compelled to confirm the claims. He could not, he 
 said, contravene the ruling of the Supreme Court in the Fre- 
 mont case. 
 
 Systematic Forgery and Perjury. 
 
 Many of the foregoing grants, real or alleged, bore the sig- 
 nature of Pio Pico, Mexican Acting Governor of California, 
 in 1846. No doubt Pico's signature was genuine in some 
 cases, for when it was evident that Mexican authority was to 
 be supplanted by that of the United States, Pico industriously 
 began to issue fraudulent grants in return (as the court rec- 
 ords indicate) for bribes. A large number of the grants bear- 
 ing his signature were made, or were said to have been made, 
 in a single month May, 1846 two months before the 
 Mexican authority in California was overthrown. In the case 
 of other grants, his signature and the signatures of other Mex- 
 ican governors were forged, and the alleged grants antedated. 
 Acting-Governor Pio Pico's Secretary was Moreno ; of Mo- 
 reno and his associates, the House Committee on Claims re- 
 ported, on February 24, 1869: 
 
 ". . . Gomez, Abrego and Moreno are suitable associ-
 
 UNDER CHIEF JUSTICE TANEY 455 
 
 ates. They are equally notorious for the forgeries and per- 
 juries in which they have been concerned. Gomez and Abrego 
 were the chief instruments in the false swearing in the great 
 Limantour swindle that attracted so much public attention 
 some years ago. Ex-Secretary Stanton visited California in 
 1858 in behalf of the United States in connection with land 
 cases, and then found that Abrego had been a witness to sup- 
 port thirty-two, and Gomez, twelve, claims, most of which were 
 ascertained to be frauds or forgeries." 28 
 
 In rejecting many claims which, because they lacked certain 
 features bringing them within the scope of the Fremont rul- 
 ing, could be thrown out, Judge Hoffman referred to the per- 
 juries committed by Gomez. Hoffman rejected Joseph C. 
 Palmer's claim to two leagues of land in San -Francisco 
 County, saying that " the suspicion that it has been fabricated 
 since the change of Government is irresistibly suggested. 
 That such has been the case, in some instances, is notorious. 
 That such a fraud was easy while the former governors of 
 this country [California] were alive and accessible, is obvi- 
 ous." Judge Hoffman further wrote of " the notorious fa- 
 cility with which testimony like that in support of this claim 
 can be procured." 20 
 
 Although many of these and other claims were nominally 
 in the names of Mexicans, they were really owned or promoted 
 by American politicians and capitalists. While Judge Hoff- 
 man, at San Francisco, was denouncing and exposing the or- 
 ganized system of fraud and forgery, the Supreme Court of 
 the United States was busily engaged in both rejecting and 
 confirming land claims of vast magnitude. The claims re- 
 jected by it had not only been awkwardly prepared, but their 
 obvious circumstances were left in so crude and clumsy a 
 
 28 House Reports, Third Session, Fortieth Congress, 1869, Rep. No. 
 261 : 535. 
 
 29 Hoffman's Reports, etc., 249-272. (Case of Palmer et al. vs. the 
 U.S.)
 
 456 HISTORY OF THE SUPREME COURT 
 
 shape that no court in the wide world could have exposed 
 itself to ridicule by professing to accept the pleas made. 
 
 Juan M. Luco and Jose L. Luco came forward with what 
 purported to be a grant from Acting-Governor Pio Pico for 
 from thirty to fifty square leagues, or some 270,000 acres, in 
 California. Judge Hoffman sarcastically commented upon 
 the fact that during the years when they were supposed to 
 hold this extensive and valuable claim, one of them was living 
 upon the alms of a rich friend, or mending clothes for a 
 livelihood. Why, too, he inquired, had they allowed so many 
 years to elapse before they bethought themselves of the ne- 
 cessity of getting the grant confirmed? Judge Hoffman 
 threw the grant out of court as forged and antedated. 30 The 
 Supreme Court of the United States likewise found the pur- 
 ported circumstances too much of a strain upon its credulity. 
 It dismissed the claim as " beyond doubt a mere fabrication," 
 and declared the documents forgeries. 31 
 
 Eleven square leagues on the upper waters of the Sacra- 
 mento River was Henry Cambuston's claim, purported to be 
 derived from a grant made by Pio Pico, in May, 1846. At- 
 torney-General Black denounced it as a forgery. " In the 
 examination of the evidence in this case," wrote Justice Nel- 
 son, in delivering the opinion of the Supreme Court of the 
 United States, in December, 1857, " it is difficult to resist a 
 suspicion as to the bona-fides of the grant in question." He 
 added significantly : " The court below appears to have been 
 very much impressed with the unsatisfactory character of the 
 evidence, and with doubts as to the genuineness of the title, 
 and seems to have yielded rather to the apparent acquiescence 
 of the representatives of the Government, in the decisions of 
 the Commissioners, than to any settled convictions of its own 
 judgment." The Supreme Court pronounced the claim in- 
 valid. 32 The claim of James R. Bolton to fully 10,000 acres 
 
 30 Hoffman's Reports, etc., 371. 
 
 si XXIII Howard's Rep., 515-543- 
 
 82 U. S. vs. Cambuston, XX Howard, 59-65.
 
 UNDER CHIEF JUSTICE TANEY 457 
 
 of land in the vicinity of San Francisco a claim valued (at 
 a low estimate) at more than $2,000,000 in the year 1851 
 was also declared worthless by the Supreme Court of the 
 United States. Bolton averred that Pio Pico had given the 
 grant to Santillan, a priest, from whom he had bought it. 33 
 
 Rafael Garcia claimed nine leagues of land on an alleged 
 grant by Michel torena. Attorney-General Black pointed out 
 that there was no trace in the official archives of the papers 
 produced. " The proof," he continued, " would be defective, 
 if the witnesses were men of good character ; but the testimony 
 comes from William A. Richardson and Manuel Castro, both 
 of whom have been made utterly infamous by being detected 
 in the commission of wilful and corrupt perjuries. , . . 
 The seal affixed to Micheltorena's letter is a manifest for- 
 gery." The Supreme Court reversed Judge McAllister's de- 
 cision in the United States court in California, and voided the 
 claim. 34 
 
 Also it cast out the claim of the executors and heirs of 
 Augustin De Yturbide, involving an alleged grant of twenty 
 leagues square of land equal to four hundred square leagues. 
 This claim was based upon a grant alleged to have been made 
 by the Mexican Government in 1822, to President Yturbide 
 for " services." The Supreme Court rejected it on the tech- 
 nical ground that the claimants had not filed their appeal in 
 the prescribed time. 35 
 
 Teschmaker, George H. Howard and others placidly came 
 forward with a claim to sixteen square leagues of land in 
 Napa County, as having been granted to the Vallejo brothers, 
 in 1838, by their brother M. G. Vallejo, " commandante gen- 
 eral." The complicity of United States government officials 
 was shown by the fact that George H. Howard, one of the 
 claimants to this grant, had been the Government law agent 
 
 ss XXIII Howard, 353. 
 
 34 U. S. vs. Garcia, XXII Howard, 275-276. 
 
 35 Ibid., 290.
 
 458 HISTORY OF THE SUPREME COURT 
 
 before the United States Board of Land Commissioners, the 
 duty of which was $p pass upon land claims. This fact of 
 Howard's complicity in allowing claims to pass unchallenged 
 was again shown, twenty years later in 1878 in the case 
 of the Throckmorton claim in which claim Howard was also 
 interested together with the notorious perjurer, W. A. Rich- 
 ardson, and others. 36 The attempt to get a validation of the 
 Vallejo claim was unsuccessful ; Attorney-General Stanton 
 proved to the satisfaction of the Supreme Court that the Val- 
 lejos, Juan Castenada and other witnesses were professional 
 perjurers. 37 The Supreme Court rejected this particular 
 claim, 38 but two decades later, as we shall see, the Supreme 
 Court .validated the notorious Throckmorton claim. 
 
 After Attorney-General Stanton had exposed the forgeries 
 and perjuries of the witnesses in the case of the Fuentes claim 
 to eleven leagues near San Jose, the Supreme Court of the 
 United States rejected the claim. ". . . No court in Cal- 
 ifornia, where Manuel Castro's achievements are known," 
 Attorney-General Stanton said, " would pronounce a judg- 
 ment upon his testimony. Abrego was incontestibly proved 
 to be guilty of forgery in the Lirnantour case, and the fact 
 was so announced by the court. . . . It is not at all diffi- 
 cult to see how and when this grant was fabricated.- It is 
 the handwriting of Manuel Castro, a part of whose business 
 consisted in forging land grants. . . ." 39 
 
 The Great Limantour Frauds. 
 
 The " Limantour swindle," to which frequent reference has 
 been made, was the audacious promotion of eight claims by 
 Jose Y. Limantour. On six of these alleged grants he claimed 
 
 30 98 U. S. Reports, 68-71. 
 
 37 In the Case of Luco vs. U. S., it was proved that General Mariano 
 Vallejo had forged a grant; the claim was rejected on that ground 
 alone. 
 
 38 XXII Howard, 395. 
 
 89 XXII Howard's Reports, 457-458.
 
 UNDER CHIEF JUSTICE TANEY 459 
 
 not less than one hundred and thirty-four square leagues 
 (924.34 square miles) or 594,783.38 square acres. 
 
 His claims were based upon alleged grants by Micheltorena 
 " for advances in money and goods " to the Mexican Govern- 
 ment, Department of California. But he, or rather those be- 
 hind him, overreached themselves. They claimed under those 
 six alleged grants not only vast tracts of agricultural, grazing, 
 timber and mineral lands but they also presented two other 
 claims to at least three-fourths of the city of San Francisco, 
 of a then assessed value of $15,000,000, with its wharves, 
 street markets, etc. Limantour also claimed islands in the 
 harbor on which the. United States Government had spent 
 great sums in erecting lighthouses, coast defenses, buildings 
 and other works. Parts of the Limantour claims were re- 
 jected by the Board of Land Commissioners, but the claims 
 to four square leagues in San Francisco and to the harbor 
 islands were confirmed. 
 
 The consequence was that a powerful combination including 
 the owners of real estate in San Francisco, the City of San 
 Francisco, corporations such as the Pacific Mail Steamship 
 Company and the United States Government set to work re- 
 lentlessly to expose and defeat the conspirators. Neither 
 money nor energy was spared. The Government uncovered 
 enough evidence to ask for a reopening of the case and to 
 prove to the complete satisfaction of the court that the grants 
 had been forged. 40 
 
 40 The trial of the case brought out many remarkable facts. It was 
 shown that a great number of blank grants with the names of Gov- 
 ernors Micheltorena and Bocanegra attached, or purporting to be at- 
 tached, on genuine Mexican Government stamped paper of the years 
 1842 and 1843, had been in circulation in California since the ratification 
 of the treaty. These blanks had been used for the purpose of fabri- 
 cating grants to land. Limantour and Jouan, one of his confederates, 
 had brought a number of the stamped blanks to California, in 1852. 
 It was also disclosed that there was a secret association of men leagued 
 together for the purpose of forging land grants; this gang operated 
 in three different parts of California. See, " Case of U. S. vs. Liman- 
 tour, Transcript of Record," etc., 1858, Vol. Ill : 354-356.
 
 460 HISTORY OF THE SUPREME COURT 
 
 In June, 1858, Judge Hoffman, in the U. S. District Court 
 at San Francisco declared all the claims spurious, and voided 
 them. 41 Judge Hoffman declared that " the proofs of fraud 
 are as conclusive and irresistible as the attempted fraud itself 
 has been flagrant and audacious." 
 
 Limantour was twice indicted, and was held in $35,000 bail. 
 Pending trial, he and his witnesses, in 1858, fled to Mexico, 
 and never returned to California 42 an absence very satis- 
 factory to certain other land claimants of the origin of whose 
 alleged grants he and his confederates knew too much. Those 
 claimants, it was believed, facilitated his flight, took care 
 that he did not return, and breathed easier in pushing their 
 claims with Limantour and his forging and perjuring crew at 
 a safe distance. 
 
 As a matter^ of fact, however, many of the owners of San 
 Francisco property who were intent upon proving the Liman- 
 tour claims fraudulent, had themselves acquired their valuable 
 city land by fraud. The case of Field vs. Seabury et al. re- 
 vealed how, in 1848, the Common Council of San Francisco 
 began fraudulently and corruptly disposing of municipal land 
 to themselves, or to their accomplices, and how Alcalde or 
 Mayor Leavenworth received his large share. 43 Leavenworth, 
 for example, in 1848 granted an extensive plot at Washington 
 and Clay Streets to William C. Parker who then deeded it 
 back to Leavenworth; one-half of this plot brought $75,000 
 in 1858. 
 
 We have given some examples of claims rejected by the 
 Supreme Court of the United States. One reason for their 
 lack of success was, as we have noted, the bungling, amateur- 
 ish manner in which the evidence was presented. But this 
 frequently was only an extrinsic reason. Whenever claims 
 
 41 Hoffman's Reports: Land Cases, etc., 389-451. 
 
 42 See, Case of Reese vs. U. S., IX Wallace's Reports, Supreme Court 
 of the U. S., 13-22. This action involved one of the sureties of 
 Limantour's bail bonds. 
 
 48 XIX Howard's Reports, 330.
 
 UNDER CHIEF JUSTICE TANEY 461 
 
 held by comparatively uninfluential persons conflicted with 
 the claims or designs of powerful corporations, puissant per- 
 sonages, or of municipalities, the whole force of Government 
 was energetically and earnestly set at work contesting the ob- 
 jectionable claims. The Government, it is true, fought many 
 claims with seeming impartiality, but in numerous cases its 
 contest was only nominal, and often bore signs of being a 
 feigned activity for the purpose of allowing the high tribunal 
 at Washington to validate certain secretly- favored claims. 
 That the weight of testimony was not the only factor influ- 
 encing the decisions of the Supreme Court of the United States 
 was shown, for instance, in the claim of Juan Jose Gonzales to 
 a tract of one league in length and three-quarters of a league 
 in breadth, alleged to be based on a grant given by the Mexican 
 Governor Figueroa, in 1833. Although there was only one 
 witness to prove the genuineness of the title, the Supreme 
 Court of the United States declared it valid. 44 
 
 Corruption of Officials. 
 
 There were few of the United States officials in California 
 who were not financially interested in the promotion of fraudu- 
 lent land grants. In 1853, f r instance, Vincente Gomez ap- 
 plied, through his attorney, Pacificus Ord, for confirmation 
 of an alleged grant of four square leagues. The Board of 
 Land Commissioners rejected the claim. Gomez then ap- 
 pealed to the United States District Court, in San Francisco. 
 Who was the United States District Attorney there? None 
 other than Pacificus Ord. Upon Ord's representation that 
 the claim was a valid one, the court confirmed it. Jn 1859 
 Attorney-General Black presented the proof to the United 
 States Supreme Court that Gomez had previously conveyed 
 one-half of the tract to Ord, when Ord was United States 
 District Attorney. Thereupon, the Supreme Court of the 
 
 ** Gonzales vs. U. S., XX Howard, 173.
 
 462 HISTORY OF THE SUPREME COURT 
 
 United States reversed the lower court, and voided the 
 claim. 45 
 
 To such a scandalous extent, also, were district judges in- 
 terested in cases of land grants pending before them, and so 
 many scandals arose, that Congress found it necessary, in 
 1864, to pass an act requiring district judges to transfer all 
 cases of land claims in which they were interested to the 
 United States Circuit Court which was to have jurisdiction. 46 
 
 The Reading Claim Confirmed. 
 
 Of the many extensive land claims confirmed by the Su- 
 preme Court of the United States, only a few will be described 
 here. One of such claims was that of Pearson B. Reading 
 for six square leagues on the Sacramento River. Lewis Cass, 
 in the United States Senate, was one of the principal pushers 
 of this claim. Reading was an American citizen who went 
 to California in 1842 and professed Mexican citizenship ; he 
 claimed that Micheltorena gave him the grant in 1844. When 
 the Mexican War broke out, he joined the United States 
 troops. The Government hotly contested his claim, urging 
 that the grant had never received the approval of the De- 
 partmental Assembly, and that under the laws of Mexico, 
 Reading could not hold such a grant, doubly so because he 
 had been treacherous to the country from which he claimed 
 his grant. 
 
 The majority of the Supreme Court of the United States, 
 however, in 1855, confirmed his claim, upon two main prece- 
 dents one precedent that of the decision of Chief Justice 
 Marshall in the case of Taylor vs. Brown (in 1809), the 
 other precedent the decision in the Fremont case. Justice 
 Wayne, in writing the court's opinion, said that while it was 
 true that a title did not become definitive until it had received 
 
 45 See, U. S. vs. Gomez, XXIII Howard's Reports, etc., 327-341, and 
 III Wallace's Reports, 752-767. 
 
 46 XIII Statutes at Large, 333.
 
 UNDER CHIEF JUSTICE TANEY 463 
 
 the approval of the Departmental Assembly, yet an immediate 
 vested interest had passed to the grantee. If the approval of 
 the Departmental Assembly had not been obtained, that was 
 the Mexican governor's fault, not Reading's. That Reading 
 became a rebel against Mexico, the decision further read, fur- 
 nished no reason for forfeiture. 
 
 Justice Daniel strongly dissented. Reading, he said, " can 
 have no rights to the claim from or through the Mexican 
 government to which he became an open enemy. By his con- 
 duct he completely abrogated every such right, and became, 
 as respects that government, punishable as a State criminal ; 
 and thus not only failed to obtain that sanction without which 
 his title was defective, namely, the approbation of the De- 
 partmental Assembly of Mexico, but, by his own voluntary con- 
 duct, rendered its procurement, upon every principle of public 
 law, public or political necessity, or of private morality, alto- 
 gether impossible." 47 
 
 Other Claims Validated. 
 
 At the same time, December, 1855, the majority of the 
 Supreme Court of the United States confirmed many other 
 claims. Maria de Arguello and associates claimed twelve 
 square leagues of land bordering four leagues on the Bay of 
 San Francisco and extending back to the mountains. Now, 
 as we have seen, the Mexican laws prohibited the granting 
 of sea-coast territory. In allowing Arguello, etc., four leagues, 
 the majority of the Supreme Court (Wayne writing the 
 opinion) circumvented that point by saying that they did not 
 believe the Mexican Government's policy had been to con- 
 fine native citizens to the interior, and that it did not mean 
 prohibition of grants of land to native citizens for their own 
 use! Justice Daniel also denounced this decision in severe 
 terms extending beyond the usual judicial restraint. 48 
 
 47 U. S. vs. Reading, XVIII Howard's Reports, 1-16. 
 
 48 Arguello et al. vs. U. S., XVIII Howard, 539-553.
 
 464 HISTORY OF THE SUPREME COURT 
 
 In the same month the Supreme Court confirmed the Vaca 
 and Pena claim to a large tract of land on the Sacramento 
 River, and the Larkin-Misroon claim to a tract eleven leagues 
 long and a league wide on the same river. These were 
 alleged grants by Micheltorena ; the Government especially 
 denounced the Larkin-Misroon claim as spurious. This al- 
 leged grant was purported to have been given, in 1844, to 
 Manuel Jimeno, Secretary of the Mexican Government in Cal- 
 ifornia and conveyed to Larkin (then American Consul at 
 Monterey) and Misroon. 
 
 Concurring with Justice Daniel in a dissenting opinion Jus- 
 tice Campbell vehemently denounced the Larkin claim. 
 ". . . The evidence," he wrote, " satisfies me that this claim 
 was fabricated after the difficulties between the United States 
 and Mexico had occurred, with a view to enable the American 
 consul at Monterey to profit from it, in the event of the ces- 
 sion of the country to the United States. I lay no stress upon 
 the fact that the papers are found in the archives. I pre- 
 sume," Campbell added with sardonic significance, " Jimeno 
 was the keeper of those archives." 4D Justice Campbell 
 further showed that neither Jimeno nor Larkin had ever en- 
 tered upon the land, or occupied it. 
 
 Justice Daniel's Scathing Opinion. 
 
 Making his dissenting opinion cover the Arguello, Vaca- 
 Pena and Larkin-Misroon decisions, Justice Daniel wrote an 
 uncommonly biting opinion, denouncing those decisions as 
 subversive of justice and public policy because of their " in- 
 citing and pampering a corrupt and grasping spirit of specula- 
 tion and monopoly." He pointedly went on to say: ". . . 
 And it will very probably be developed in the progress of the 
 struggle or scramble for monopoly of the public domain, that 
 many of the witnesses upon whose testimony the novel and 
 
 49 XVIII Howard's Reports, 565.
 
 UNDER CHIEF JUSTICE TANEY 465 
 
 sturdy Mexican code of practise or seizure is to be estab- 
 lished, in abrogation of the written law, are directly or im- 
 mediately interested in the success of a monopoly by which, 
 under the countenance of this court, principalities are won by 
 an affidavit, and conferred upon the unscrupulous few, to the 
 exclusion and detriment of the many, and by the sacrifice of 
 the sovereign right of the United States. . . ." 
 
 Justice Daniel then proceeded to describe the time and cir- 
 cumstances " under which these enormous pretensions have 
 originated"; how in Mexico 'the period had been one of in- 
 cessant agitation, disorder and revolution, men seizing upon 
 power in rapid succession, and either looting or becoming the 
 instruments of looters. All the alleged grants, he said, were 
 deficient in the requisites indispensable to impart validity. 
 Yet they had been boldy presented for confirmation. They 
 had originated " in practical and temporary usurpations of 
 power; and that, amidst scenes of violence and disorder. 
 . . ." Notwithstanding the avowed character of those al- 
 leged grants, " which ought to consign them to the sternest 
 reprobation," those, said Justice Daniel disgustedly, were the 
 circumstances constituting " the merits by which they com- 
 mend themselves to the countenance and support of a tribunal 
 whose highest function is the assertion of law, justice, integ- 
 rity, order the dispensation of right equally to all." Con- 
 cluding, Justice Daniel said that he could conceive of no claim 
 whatsoever to extending favors to " the grasping and un- 
 scrupulous speculator and monopolist, and thus excluding the 
 honest settler and retarding the population of new States." 50 
 
 The Validating Process Continues. 
 
 Never had so caustic and telling an excoriation of the Su- 
 preme Court been made by one of its own members. If 
 the majority winced, they gave no sign. As though vindi- 
 
 60 XVIII Howard's Reports, 552-553.
 
 466 HISTORY OF THE SUPREME COURT 
 
 eating themselves, and proving their consistency, they went on 
 confirming other notorious claims. 
 
 In December, 1856, they confirmed the large and rich Per- 
 alta claim of five leagues, running south from the Bay of 
 San Francisco over the town of Oakland, and east to the moun- 
 tains. This was a grant alleged to have been made in 1820, and 
 renewed by Micheltoreria, in i844. 51 The Pedrorena claim to 
 eleven sitios (equal to eleven leagues) in San Diego County 
 was confirmed in the same month ; this claim was based upon 
 an alleged grant made by Pio Pico in i845. 52 
 
 The Castillero claim was validated by the Supreme Court 
 in 1858. It was a claim embracing a large tract of land near 
 Santa Clara, but in particular its value lay in the fact that it 
 included the " New Alamaden " quicksilver mine then pro- 
 ducing at least $1,000,000 returns a year, and valued in total 
 at $25,000,000. The Castillero alleged grant had become the 
 property of American and foreign capitalists. One of their 
 counsel was Hall McAllister, the regular attorney for the Pacific 
 Mail Steamship Company. This company had consecutively, 
 from 1847, bribed Congress to get a large annual mail sub- 
 sidy ; 53 in the year 1872 alone, so an investigating committee 
 of Congress later reported, it expended nearly $1,000,000 in 
 bribes to get an act passed by Congress giving it an addi- 
 tional mail subsidy of $500,000 a year for ten years. 54 The 
 Government charged that the papers in the Castillero claim 
 were forged and antedated, but the Supreme Court held that 
 the certified copies of the originals were genuine. The Su- 
 preme Court chiefly depended in its decision upon the fact 
 
 51 Case of U. S. vs. Dominigo and Vincente Peralta, XIX Howard's 
 Reports, etc., 343-349. Justice Daniel dissented. 
 
 52 U. S. vs. Sutherland, guardian, etc.. XIX Howard, 363. 
 
 63 See, " History of the Great American Fortunes," Vol. II. 
 
 54 House Report No. 269, Forty-third Congress, Second Session, 1874-- 
 75, Vol. II : xvii. The committee reported that " a sum of nearly one 
 million dollars appears to have been disbursed in some sort of connec- 
 tion with the passage of the act."
 
 UNDER CHIEF JUSTICE TANEY 467 
 
 that one of the former Mexican governors, Alvarado, who was 
 alleged to have made the grant, testified that the signature 
 was his. 55 But the notorious fact that Alvarado was a corrupt 
 political adventurer, who had his price, and a cheap one at that, 
 was ignored. 
 
 Much of the nearly nine million acres in California ob- 
 tained on private land claims were secured in these years by 
 grace of decisions of the Supreme Court of the United States. 
 Year after year the Supreme Court continued validating 
 claims the character of which did not differ from that of the 
 claims specifically described here. Of the whole number con- 
 firmed by the Supreme Court during a period of about fifty 
 years, beginning in 1854, several score were validated when 
 Taney was Chief Justice. 
 
 The same acidulous differences and dissensions among the 
 members of the Supreme Court evidenced in the private land- 
 claim cases were evidenced in other cases. To the tradition 
 carefully inculcated in the great mass of people that the de- 
 cisions of the Supreme Court should be treated with una- 
 bated respect, dissenting members of the court did not them- 
 selves subscribe. From no critic did sharper denunciations 
 and reproaches proceed than from the court's own members. 
 
 Justice Campbell Denounces a Decision. 
 
 An unprecedented case was decided by the Supreme Court, 
 in December, 1855. The State of Ohio had passed an act tax- 
 ing banks ; thereupon the novel sight was presented of an in- 
 corporator, in the case of Dodge vs. Woolsey, suing the cor- 
 poration of which he was a member, with the object of having 
 the act declared unconstitutional. When the majority of the 
 Supreme Court declared the act unconstitutional because it im- 
 paired the obligation of a contract, Justices Catron, Daniel and 
 
 65 U. S. vs. Castillero, XXIII Howard's Reports, etc., 464-469.
 
 468 HISTORY OF THE SUPREME COURT 
 
 Campbell dissented. Justice Campbell's dissenting opinion 
 was both remarkable and severe; remarkable in that it de- 
 veloped, in essence, at least, even at that early day, the now 
 accepted theory and fact of dominant interests and class strug- 
 gles. 
 
 Comparing certain conditions in Ohio with those in Turkey, 
 Justice Campbell said : ". . . In that empire, the ecclesias- 
 tical and judicial is the dominant interest, for the ulemas 
 are both priests and lawyers, just as the corporate money in- 
 terest is dominant in Ohio, and in either country that interest 
 claims exemption from the usual burdens and ordinary legis- 
 lation of the State." He then asked that if a State were to 
 become " the victim of vicious legislation, its property alien- 
 ated, its powers of taxation renounced in favor of chartered 
 associations, and the resources of the body politic cut off, what 
 remedy have the people against the misgovernment ? " He 
 answered : " Under the doctrines of this court none is to be 
 found in the Government, and none exists in the inherent 
 powers of the people, if the wrong has taken the form of 
 a contract. The most deliberate and solemn acts of the peo- 
 ple would not serve to redress the injustice, and the over- 
 reaching speculator upon the facility or corruption of their 
 legislature would be protected by the powers of this court in 
 the profits of his bargain. . . ." 
 
 Justice Campbell went on to say that such decisions " will 
 establish on the soil of every State a caste made up of com- 
 binations of men for the most part under the most favorable 
 conditions in society, who will habitually look beyond the in- 
 stitutions and authority of the State to the central government 
 for the strength and support necessary to maintain them in the 
 enjoyment of their special privileges and exemptions. The 
 consequence will be a new element of alienation and discord 
 between the different classes of society, and the introduction of 
 a fresh cause of disturbance in our own distracted political and 
 social system. In the end the doctrine of this decision may
 
 UNDER CHIEF JUSTICE TANEY 469 
 
 lead to a violent overturn of the whole system of corporate 
 combinations." 50 
 
 The Dred Scott Case. 
 
 In the epochal Dred Scott decision, the differences among 
 the Justices were as pronounced and acute. With this de- 
 cision, so momentous in its consequences, everyone is tolera- 
 bly familiar, but the singular circumstances preceding the 
 actual and final decision are little known. 
 
 In 1834, Dred Scott, a negro, was the slave of Dr. Emer- 
 son, in Missouri, and was taken by his master to Rock Island, 
 Illinois. Two years later Scott married Harriet, another 
 slave of Emerson, and in 1838 returned to Missouri with his 
 master. Not until then did Dred Scott discover that the 
 statutes of Illinois prohibited slavery, and that his transfer to 
 Illinois had, in reality, made him a free man. In 1852 Emerson 
 sold his slaves to J. F. A. Sand ford, of New York City. Emer- 
 son having whipped Scott severely, Scott was then directed to 
 bring suit for assault and battery. Scott won his action in a 
 Missouri court. This decision was reversed by the Supreme 
 Court of Missouri. Under the form of the case of Dred 
 Scott vs. Sandford, the case came up on appeal before the Su- 
 preme Court of the United States. 
 
 The great importance of the case was fully recognized. 
 But, at the outset, the Supreme Court of the United States 
 had no intention of going to the lengths later determined 
 upon. When Taney assigned Justice Nelson to write the 
 court's opinion, it was the understood plan that the real is- 
 sues were to be avoided ; nothing was to be said of the con- 
 stitutionality or unconstitutionality of the Missouri Com- 
 promise Act or other laws restricting the slave area; the 
 decision was to be a brief one, affirming the decision of the 
 Missouri Supreme Court, and treating the issues as local ques- 
 
 56 XVIII Howard's Reports, 371-373. Justices Catron and Daniel 
 concurred in Campbell's conclusions.
 
 47O HISTORY OF THE SUPREME COURT 
 
 tions with which the Supreme Court of the United States did 
 not care to concern itself or interfere. 
 
 The Court Secretly Changes its Plan. 
 
 What happened next is well related by Frederick Trevor 
 Hill in his account of the case : 
 
 " Before Mr. Justice Nelson could prepare this opinion, 
 however, the active agents of the slave power intervened. 
 At dinners, receptions, and social functions they waylaid the 
 judges, adroitly importuning them to change their plan, flat- 
 tering those whose vanity gave the necessary opening, ap- 
 pealing to the ambition of others, and generally emphasizing 
 the opportunity which lay before the Court to fulfill a public 
 and patriotic duty by forever quieting a discussion injurious 
 to the country's welfare. Declare all such restrictions as the 
 Missouri Compromise unconstitutional, it was urged, and the 
 North will acquiesce, arjd the Union will be preserved. All 
 of the judges were honest and conscientious, but some of them 
 were far advanced in age, and the pressure which was con- 
 stantly brought to bear upon them was well calculated to dis- 
 turb their judgment." 
 
 Slave-Holding Emissaries at Work. 
 
 Further in his narrative of this case, Hill tells (what was 
 the authentic fact) that " the most active and persistent of 
 the emissaries " was Alexander H. Stevens, a leading South- 
 ern politician and later vice-president of the Confederacy. 
 A letter of Stevens reveals that he was informed in advance 
 exactly what the nature of the decision would be, and pre- 
 cisely what was happening in the supposedly secret and care- 
 fully-guarded councils of the Supreme Court. Stevens was 
 fully aware of the fact that the Missouri Compromise Act 
 would be declared unconstitutional. " How," Hill observes,
 
 UNDER CHIEF JUSTICE TANEY 471 
 
 " an outsider came to be so intimately acquainted with what was 
 happening in the secret conclaves of the judges, has never 
 been disclosed, but the information was accurate in every par- 
 ticular, and bears evidence of having been obtained at first 
 hand." " 
 
 Hill does not overstate when he says that Stevens knew of 
 the exact moves of the Supreme Court at the precise time 
 they were made. Writing from Washington, December 15, 
 1857, to his brother, Linton Stevens, regarding the progress 
 of the Dred Scott case, then under consideration by the Su- 
 preme Court, Alexander H. Stevens thus announced: 
 "... I have been urging all the influences I could bear 
 upon the Supreme Court to get them to postpone no longer 
 the case on the Missouri Restriction before them, but to decide 
 it. They take it up to-day. If they decide, as I have reason 
 to believe they will, that the restriction was unconstitutional," 
 then, Stevens went on, that would settle the question of Ter- 
 ritorial legislation over slavery. 58 
 
 
 
 The Deferred Decision, and its Purport. 
 
 For political reasons, the decision was long held back; not 
 until March 6, 1857 two days after Buchanan's induction 
 as President was it made public. 
 
 The exultation that the decision caused in the South, and 
 the tempestuous uproar of rage in the North, are matters of 
 commonplace historic knowledge. By a vote of seven to two, 
 the Supreme Court of the United States declared that the 
 Missouri Court, where the case was originally tried, had no 
 jurisdiction, and dismissed the suit. The majority decision 
 also denied the legal existence of negroes as persons; it pro- 
 nounced them merchandise or property. The decision further 
 denied that Congress had supreme control over the Terri- 
 
 57 " Decisive Battles of the Law." 
 
 58 Johnston and Browne's " Life of A. H. Stevens," 316.
 
 472 HISTORY OF THE SUPREME COURT 
 
 tories, and refused to allow the constitutionality of the Mis- 
 souri Compromise Act. In his opinion, Chief Justice Taney 
 wrote of conditions among " enlightened nations " at the time 
 of the Declaration of Independence when, said he scornfully, 
 the negro race was regarded " as so far inferior that they had 
 no rights which the white rftan was bound to respect; and 
 that the negro might justly and lawfully be reduced to slavery 
 for his benefit." S9 According to Taney and his concurring 
 associates this was a fixed, unchangeable condition subject 
 neither to question, alteration nor interference. 
 
 According to a compilation made in the year 1850, it was 
 estimated that in fifteen slave States, having an entire popula- 
 tion of 9,612,679, less than 200,000 were slave owners, yet 
 at this time they held 3,200,364 slaves. In the slave States 
 there were 228,136 free negroes but they were not considered 
 citizens or allowed to vote. By the close of Buchanan's ad- 
 ministration, says Wilson in his " Rise and Fall of the Slave 
 Power in America," it was estimated that the slave traffic had 
 grown to the purchase and sale of 30,000 slaves a year, at a 
 market value of $30,000,000. " This trade, with its sad aggre- 
 gate of suffering and sorrow, on the one part, of demoraliza- 
 tion and guilt, on the other, was carried on unblushingly." 
 
 Senator Seward Charges Collusion. 
 
 On March 3, 1858, Senator Seward of New York, arose in 
 the United States Senate, and in a scathing yet measured 
 speech, which caused a national sensation, denounced the Su- 
 preme Court of the United States, and accused it of having 
 in its Dred Scott decision been in collusion with Buchanan as 
 President-elect and President in a conspiracy to fasten slavery 
 upon the United States for all time. 
 
 ". . . Before coming into office," Seward said, "he [Bu- 
 
 59 Case of Dred Scott vs. Sandford, XIX Howard's Reports, 407, 
 Justices McLean and Curtis were the non-concurring judges.
 
 UNDER CHIEF JUSTICE TANEY 473 
 
 chanan] approached, or was approached by the Supreme Court 
 of the United States. The day of inauguration came, the first 
 one among all the celebrations of that great national pageant 
 that was to be desecrated by a coalition between the executive 
 and judicial departments, to undermine the national legisla- 
 ture and the liberties of the people. The President [Bu- 
 chanan], attended by the usual lengthened procession, arrived 
 and took his seat on the portico. The Supreme Court at- 
 tended him there in robes which yet exacted public reverence. 
 The people, unaware of the import of the whisperings carried 
 on between the President and the Chief Justice, and imbued 
 with veneration for both, filled the avenues and gardens as 
 far away as eye could reach. The President . . . an- 
 nounced (vaguely, indeed, but with self-satisfaction) the 
 forthcoming extrajudicial exposition of the Constitution, and 
 pledged his submission to it as authoritative and final. The 
 Chief Justice and his associates remained silent. ... It 
 cost the President, under the circumstances, little exercise of 
 magnanimity now to promise to the people of Kansas, on 
 whose neck he had, with the aid of the Supreme Court, hung 
 the millstone of slavery, a fair trial in their attempt to cast it 
 off, and hurl it to earth, when they should come to organize 
 a State Government. Alas ! that even this cheap promise, 
 uttered with such great solemnities, was only made to be 
 broken!" . . . G0 
 
 Elsewhere, in the course of his philippic, Seward declared: 
 ". . . The Supreme Court can reverse its judgment more 
 easily than we can reconcile the people to its usurpation. 
 Sir, the Supreme Court attempts to command the people of 
 the United States to accept the principle that one man can 
 own other men; and that they must guarantee inviolability 
 of that false and pernicious property. The people of the 
 United States," Senator Seward went on, openly flouting and 
 
 60 The Congressional Globe, Part I, First Session, Thirty- Fifth Con- 
 gress, 1857-1858: 941.
 
 474 HISTORY OF THE SUPREME COURT 
 
 defying the Supreme Court's decision, " never can, and they 
 never will, accept principles so unconstitutional and abhorrent. 
 Never, Never! Let the court recede. Whether," Seward 
 threatened, " it recedes or not, we shall reorganize the court, 
 and thus reform its political sentiments and practices, and 
 bring them into harmony with the Constitution and the laws 
 of Nature. . . ." 61 
 
 For this attack upon the Supreme Court, Seward was ven- 
 omously assailed by conservatives and by the representatives 
 of the slaveholders. His accusations of collusion were de- 
 clared to be utterly unfounded, and were pronounced the va- 
 porings of a mind either obsessed with partisan rancor or 
 deranged with malignant hatred. Even Northern opponents 
 of slavery who had faith in the integrity of the Supreme 
 Court of the United States, could not credit Seward's grave 
 charges, and dismissed them as incredible. 
 
 The same charges of collusion were made by Abraham Lin- 
 coln in his celebrated debates with Senator Douglas. Lincoln 
 repeatedly charged that the Dred Scott decision was the re- 
 sult of a conspiracy to which Taney, Buchanan, Douglas and 
 others were parties. " Mr. Lincoln," so the literal report of 
 Douglas' reply, at Ottawa, 111., August 21, 1858, reads, in 
 part, " has not character enough for integrity and truth, 
 merely on his own ipse dixit, to arraign President Buchanan, 
 President Pierce and nine judges of the Supreme Court, not 
 one of whom would be complimented by being put on an 
 equality with him." 62 
 
 Truth of the Charges Established. 
 
 But that the charges made by Seward and Lincoln were abso- 
 lutely true in every respect is now conclusively established. 
 
 61 Congressional Globe, 1857-1858, Part 1 : 943. 
 
 62 This coarse, insulting rejoinder was typical of the " able and 
 cultured" Douglas, the arch defender of slavery and of the Supreme 
 Court.
 
 UNDER CHIEF JUSTICE TANEY 475 
 
 In the recently issued " Works of James Buchanan " twelve 
 volumes in all edited by Prof. John Bassett Moore, Bu- 
 chanan's correspondence is given in full. Professor Moore 
 incorporates two letters written to Buchanan, one letter 
 from Justice Catron, the other from Justice Grier. These 
 letters, written several weeks before the Dred Scott decision 
 was handed out, prove that the Supreme Court of the United 
 States did approach Buchanan previous to his inauguration. 
 They further show that Buchanan had brought some species 
 ' of pressure (the nature of which is unknown) upon the Su- 
 preme Court ; that negotiations were carried on with the great- 
 est secrecy between Buchanan and the Supreme Court; and 
 that when Buchanan ostentatiously made the pledge in his 
 inaugural address that he would abide by the decision of 
 the Supreme Court, he knew in advance precisely what the 
 salient features of that decision would be. These facts are 
 now on an incontrovertible basis. 
 
 Letters of Justices Catron and Grier. 
 
 According to the first of the two letters reproduced by Pro- 
 fessor Moore, Justice Catron, under date of February 19, 
 1857, wrote to Buchanan making suggestions of what Bu- 
 chanan might with safety and propriety say in his inaugural 
 address about the Dred Scott case, and requesting Buchanan 
 to write to Justice Grier and seek to induce him to come to 
 terms. Justice Catron's letter proceeded: 
 
 " Will you drop Grier a line saying how necessary it is 
 & how good the opportunity is, to settle the agitation by 
 an affirmative decision of the Supreme Court, the one way or 
 the other. He ought not to occupy so doubtful a ground as 
 the outside issue that admitting the constitutionality of the 
 Mo. Comp. line of 1820, still, as no domicile was acquired by 
 the negro at Fort Snelling, & he returned to Missouri, he was 
 not free. He has no doubt about the question on the main
 
 476 HISTORY OF THE SUPREME COURT 
 
 contest, but has been persuaded to take the smooth handle 
 for the sake of peace. 
 
 " Sincerely yr. f rd., 
 
 "J. CATRON." 
 
 It is not clear whether Buchanan had previously written to 
 Catron. But it is clear that Buchanan followed Catron's sug- 
 gestions; after Catron wrote the foregoing letter, Buchanan 
 wrote to Justice Grier, and on February 23, 1857, received a 
 reply in which Grier wrote: 
 
 " Your letter came to hand this morning. I have taken the 
 liberty to shew it in confidence to our mutual friends Judge 
 Wayne and the Chief Justice. We fully appreciate and con- 
 cur in your views as to the desirableness at this time of having 
 an expression of the opinion*bf the Court on this troublesome 
 question. With their concurrence I will give you in confi- 
 dence the history of the case before us, with the probable re- 
 sult." 63 
 
 Grier further expressed his solicitude that the decision 
 should be so .rendered that it would not seem a purely geo- 
 graphical one, meaning thereby that the Supreme Court should 
 be saved from being discredited, which it would be were the 
 decision made purely by Justices from the slave States. A 
 significant consideration, this. 
 
 In view of these letters the charges of collusion stand 
 proved. Chief Justice Taney was furious that Seward had 
 penetrated into and uncovered one of the most carefully hid- 
 den secrets of the Supreme Court of the United States. 
 " Taney," says Rhodes, " was so incensed at the speech of 
 Seward that he told Tyler, who was afterwards his biogra- 
 pher, that had Seward been nominated and elected President 
 in 1860, instead of Lincoln, he would have refused to admin- 
 ister to him the oath of office." 
 
 63 For a clear exposition of the facts brought out by Prof. Moore, 
 see an extended review in The Independent, issue of August 24, IQII.
 
 UNDER CHIEF JUSTICE TANEV 477 
 
 Lincoln Scouts the Sacredness of the Supreme Court. 
 
 When the Abolitionists bitterly denounced the Dred Scott 
 decision, the sl^ve power came forward with the 'demand that 
 the Supreme Court decision be accepted with reverent acquies- 
 cence, and that no whisper of criticism should be made against 
 that exalted tribunal. 
 
 In the course of his debates with Stephen A. Douglas, 
 Abraham Lincoln spoke derisively of that attitude. " The 
 sacredness that Judge Douglas throws around this decision," 
 he said at Chicago, July 10, 1858, " is a degree of sacredness 
 that has never before thrown around any other decision. I 
 have never heard of such a thing. Why, decisions apparently 
 contrary to that decision, or that good lawyers thought were 
 contrary to that decision, have been made by that very court 
 before. It is the first of its kind ; it is an astonisher in legal 
 history. . . . It is based upon falsehood in the main as to 
 the facts." 64 At Springfield, seven days later, Lincoln again 
 adverted to the subject. ". . . Our judges," said he, " are 
 as honest as other men and not more so. They have, with 
 others, the same passions for party, for power, and the priv- 
 ilege of their corps. Their maxim is, ' boni judicis est am- 
 pliare jurisdictonem' [it is the part of a good judge to amplify 
 jurisdiction] ; and their power is the more dangerous as they 
 are in office for life, and not responsible, as the other func- 
 tionaries are, to the elective control. . . ." 5 
 
 Justice Clifford's Appointment. 
 
 Justice Curtis' resignation from the Supreme Court, soon 
 after this decision he had been one of the minority was 
 followed by the appointment of Nathan Clifford as an Asso- 
 
 04 " Political Debates Between Hon. Abraham and Hon. Stephen A. 
 Douglas," etc., Edition of 1860: 20. 
 5 Ibid., 61.
 
 478 HISTORY OF THE SUPREME COURT 
 
 ciate Justice. Clifford came from Maine ; had been in the Maine 
 Legislature from 1830 to 1834, serving as Speaker of the 
 Maine House of Representatives in 1833 and 1834. In 1834 
 he had become Attorney-General of Maine. 
 
 It was during this period that vast stretches of what were 
 then called Maine " wild lands " were acquired by a few land 
 appropriators. From 1785 to 1812 the State of Massachu- 
 setts of which, until 1820, Maine was a part had sold 
 4,086,292 acres for the sum of $818,691.14. Of those 4,086.- 
 292 acres, a single individual William Bingham bought 
 2,000,000 acres, in 1793, at the insignificant rate of twelve 
 and a half cents an acre. In 1816 a total of 16,000,000 acres 
 of land, most of it thick with primitive growth of valuable 
 timber, were left in public ownership. This area rapidly van- 
 ised; from 1823 to 1834 not less than 1,003,450 acres were 
 alienated into private holdings, mostly those of speculators 
 and lumber capitalists. Notwithstanding the great recognized 
 value of those timber lands, they were fraudulently or cor- 
 ruptly sold for an average of forty-six cents an acre. Subse- 
 quently, 1,800,000 more acres went, in large part, into the 
 maws of capitalists from 1834 to 1855 ; and year after year 
 the process continued, until no State domain was left. 
 
 In 1838, Clifford was elected to Congress; in 1846 he be- 
 came a member of President Folk's Cabinet, as Attorney- 
 General of the United States. One of the most influential 
 members if not the most influential member of this Cabi- 
 net, was, as heretofore noted, that notorious land speculator 
 and land grabber Robert J. Walker. After the Mexican 
 War, Clifford was sent to Mexico as a Peace Commissioner. 
 In 1849 ne returned to Portland to reengage in law. Presi- 
 dent Buchanan appointed Clifford to the Supreme Court of 
 the United States upon the recommendation of United States 
 Senator James Ware Bradbury, 66 whose law partner in Maine 
 
 60 See, "Collections Of The Maine Historical Society," Vol. IX, 
 ' Memoir of Nathan Clifford," by James Ware Bradbury.
 
 UNDER CHIEF JUSTICE TANEY 479 
 
 was Lot M. Morrill, who himself became United States Sena- 
 tor. One of the members of the Morrill family was Land Agent 
 of Maine. The politics of that State, of both political par- 
 ties, were largely controlled by a few families such as the 
 Coburns. Beginning as cattle dealers, Abner Coburn and 
 Philander Coburn acquired 450,000 acres, or more than seven 
 hundred square miles, of land in Maine ; 67 the Coburn estate 
 is at this clay enormous. Bradbury was one of the promoters 
 of the Kennebec and Portland Railroad. He was also one of 
 the capitalists behind the Somerset and Kennebec Railroad, 
 of which he was a director, and of which Abner Coburn be- 
 came president, after Bradbury had consummated its con- 
 solidation with the Portland and Kennebec Railroad. Those 
 railroads are now part of the Maine Central Railroad. 
 
 Philip Brown, eldest son of John Bundy Brown, was married 
 to Fanny, daughter of Justice Clifford ; John Bundy Brown's 
 daughter, Ellen, became the wife of W. H. Clifford, son of 
 Justice Clifford. Who, it may be asked, was John Bundy 
 Brown? One of the very foremost capitalists of Maine. He 
 was the head of the Portland Sugar Company which, at one 
 time, employed nearly a thousand workers ; he was one of 
 the original incorporators and directors of the Atlantic and 
 St. Lawrence Railroad (now the Atlantic Division of the 
 Grand Trunk Railway) ; he was interested in the Portland 
 and Kennebec Railroad and the Maine Central Railroad; he 
 was the largest stockholder in the Portland and Ogdensburg 
 Railroad ; a director for many years in the Portland, Saco and 
 Portsmouth Railroad ; for a period a director in the Erie Rail- 
 way ; had advanced large sums to the Toledo, Peoria and War- 
 saw Railroad ; was also at various times a director of the Port- 
 land Company, the Rolling Mills Company, the Kerosene Oil 
 
 67 " Biographical Encyclopedia of Maine, igth Century," 436. Abner 
 Coburn was later elected Governor of Maine. Through his con- 
 nection with the Northern Pacific Railroad, he personally acquired 
 50,000 acres of land along the route of that railroad. The Coburns 
 were also ewners of banks.
 
 4&O HISTORY OF THE SUPREME COURT 
 
 Company, the Maine Steamship Company, the First National 
 Bank and other corporations. 68 His firm J. B. Brown and 
 Sons was the largest private banking house in Portland, 
 and Brown's private mansion the most capacious and costly 
 and " magnificent " in that city. 68 
 
 Chief Justice Taney Discredited. 
 
 The breaking out of the Civil War found Taney much 
 despised and discredited in the North; for his part in the 
 Dred Scott decision he was generally viewed with detestation. 
 Although it was well known that his sympathies were with 
 the South, he cautiously made no public utterances, and re- 
 mained Chief Justice until the day of his death in 1864. He 
 seems to have ha>d need of the salary attached to the posi- 
 tion. According to Tyler, who, as we have narrated, was 
 chosen by Taney to write his biography, " Taney's small for- 
 tune was invested at the time of the Civil War exclusively in 
 Virginia State stocks." A man of originally tall stature 
 upwards of six feet Taney's constitution, always delicate, 
 had been undermined by close application to musty legal lore 
 and sedentary habits. In his last years " he had become bent 
 and warped, so that his skin was like a cracked parchment, 
 his stature bent and he walked with difficulty and tardiness." 
 
 68 " Biographical Encyclopedia of Maine, ipth Century," 209, which 
 describes Brown's connections with these various corporations. 
 
 69 So much for Justice Clifford's connections. Of Clifford's exag- 
 gerated self-esteem and formalism the following anecdote was later 
 current in the public press when he was on the Supreme Court Bench : 
 " Dignified old Clifford always avoided, if possible, the use of the defi- 
 nite article. He would write in his opinion, ' Suit brought So-and-so,' 
 ' Case involved So-and-so,' never writing ' the ' if it could be avoided. 
 Jocular Justice Grier, who had been on the bench long before Justice 
 Clifford came to Washington, and who was the only man who dared 
 take liberties with his Maine brother, said one day, slapping Clifford 
 on the back, ' Cliffy, old boy, why do you hate the definite article so?' 
 Clifford drew himself up stiffly and replied, ' Brother Grier, you may 
 criticize my law, but my style is my own.' " 
 
 70 Justice Campbell, however, had resigned in 1861, to take up the 
 cause of the Southern Confederacy.
 
 UNDER CHIEF JUSTICE TANEY 481 
 
 According further to Tyler, Taney was poor. In an inter- 
 view with Tyler, published after Taney's death in the Cin- 
 cinnati Commercial newspaper, Tyler was asked : " Was 
 Judge Taney rich, Mr. Tyler ? " " No, sir," replied Tyler, 
 " always poor. He lived in Blagden row the row of stuc- 
 coed houses opposite the City Hall. They are four-storied; 
 an iron balcony runs above the first story ; two windows adjoin 
 the hall door. His daughters, at this day, live upon copy- 
 ing reports and papers from the Department of the Interior. 
 One of them, I believe, is unmarried ; another, a widow. 
 They are in as nearly a state of indigence as I care to classify 
 ladies so tenderly reared. The Judge himself said to me, 
 during the war, that he lamented his narrow means, because 
 he wanted to take another newspaper and could not af- 
 ford it." 71 
 
 These statements, and the implication that they aimed to 
 convey, are obviously from an uncommonly partial source. 
 But one fact is certain: If, as Lincoln and others virtually 
 charged, Taney was corrupt, it was not a corruption by me- 
 dium of bribes. Taney could not be approached with mer- 
 cenary inducements. His corruption was of a different kind. 
 A man may accept bribes, yet possibly refuse to accord his 
 vote and services. But if a judge's class training, class views 
 and class interests, with all of the bias and associations al- 
 lied with them, be hard and fixed, he will honestly award, 
 as a matter of indisputable right, what no amount of bribes 
 could influence him to give. 
 
 This was the species of Taney's corruption, a sinister kind 
 not recognized by penal laws, and yet, on the whole, far ex- 
 ceeding in ominous efficacy the more vulgar and less certain 
 mode of money corruption. We have seen how under the 
 administration of Taney, as Secretary of the Treasury, and 
 under him as Chief Justice, land grabbers obtained tens of 
 
 71 This interview was republished in Ellis' " Sights and Secrets of the 
 National Capital" (1869) : p. 267.
 
 482 HISTORY OF THE SUPREME COURT 
 
 millions of acres of the richest part of the public domain, and 
 how corporations obtained immunity from taxation. The capi- 
 talists concerned became millionaires and multimillionaires, but 
 Taney died, on October 12, 1864, at the age of eighty-seven, 
 in a kind of gnawing genteel poverty, unable, as we learn, to 
 afford an extra few cents for an additional newspaper. 72 
 
 72 Before Taney's death President Lincoln had, made several appoint- 
 ments as Associate Justices of the Supreme Court. These are dealt 
 with in the next chapter.
 
 CHAPTER XII 
 THE SUPREME COURT UNDER CHIEF JUSTICE CHASE 
 
 Taney's successor was Salmon P. Chase, Secretary of the 
 Treasury. It was maintained then, and the statement has 
 been uniformly repeated in many memoirs and biographical 
 works, that President Lincoln's motive in appointing Chase 
 Chief Justice of the Supreme Court was to rid himself of a 
 too-ambitious competitive aspirant for the Presidential nom- 
 ination. In both the years 1856 and 1860 Chase had aimed to 
 get that nomination; and as a member of Lincoln's Cabinet 
 he in nowise lessened his efforts and intrigues. Of these 
 Lincoln was well aware, contemplating them with vexation 
 and uneasiness. Some politicians of the period, like Senator 
 Henderson, even hold, in their memoirs, that Chase gave no 
 real help to Lincoln during the Civil War, but busied him- 
 self, whenever the opportunity presented, with seeking to 
 undermine Lincoln's chances for renomination, and with pro- 
 moting his own. 
 
 Indeed, in a review of Chase's career, published shortly after 
 his death, in the October, 1873, issue of Bench and Bar (a 
 periodical devoted to the legal profession) President Lincoln 
 was quoted as saying to a " distinguished and prominent 
 statesman " who assured him that if Chase were appointed 
 Chief Justice he (Chase) would withdraw from politics and 
 devote himself exclusively to judicial functions, " I will nom- 
 inate him, because it seems the public wish, but you are mis- 
 taken. He will be a candidate for President every four years 
 as long as he lives, and never be elected." 
 
 For many years Chase had been an active and conspicuous 
 
 483
 
 484 HISTORY OF THE SUPREME COURT 
 
 figure in national politics. He had been a United States 
 Senator from Ohio from 1849 to ^56, and Governor of Ohio 
 from 1856 to 1860. He was a man of force and of impressive 
 appearance : in stature six feet two inches, with a massive 
 head, massive brows, blue-gray eyes, wide nostrils and heavy 
 lips, altogether a commanding appearance. Did, however, 
 the personal motive wholly account for Chase's appointment? 
 By no means. Two other considerations had their weight. 
 
 Forces Behind Chase's Appointment. 
 
 Chase's views on the question of negro slavery had been 
 so insistently disseminated, and were so nationally known, 
 that there could be no atom of doubt as to where he stood on 
 that issue. As an attorney, he had energetically defended 
 fugitive slaves ; in the United States Senate he had 'oeen one 
 of the most unyielding, aggressive Free Soil opponents of the 
 extension of slavery, and as Governor of Ohio hii, course was 
 a consistent agitation. The Civil War saw the anti-slavery 
 forces in as thorough a control of the Federal Goverment ar. 
 had been the slave-owning oligarchy under the former regime 
 Lincoln's Emancipation Proclamation had been promulgated. 
 Issues affecting this great revolutionary transformation were 
 bound to come, and did come, in some phase or other, before 
 the Supreme Court of the United States for final adjustment ; 
 and Chase, as one of the founders of the Republican Party, 
 could be depended upon in his capacity of Chief Justice U 
 interpret law in accordance with the aims and demands of fte 
 triumphant anti-slavery forces. 
 
 The other reason underlying Chase's appointment was of a 
 very different nature, and one hitherto evaded in most works. 
 The Civil War and its accompanying laws and administrative 
 orders, placed the finances of the country in the power of the 
 private bankers; and while armies were fighting and hosts
 
 UNDER CHIEF JUSTICE CHASE 485 
 
 perishing on the battlefields, and at sea, 1 the bankers extracted 
 colossal profits. The system devised gave banking corpora- 
 tions absolute control over the volume of currency, enabling 
 them in large measure to fix the price of labor and commodi- 
 ties of the whole nation. Enormous quantities of bonds were 
 issued by the Government; to pay interest to the bankers and 
 other bondholders, the people of the United States were taxed 
 from $18,000,000 to $20,000,000 a year. During the most cru- 
 cial period of the Civil War the bankers had laws passed by 
 which they could deposit their bonds in the United States 
 Treasury, and upon them issue their privately-stamped cur- 
 rency up to ninety per cent, of the amount of the bonds. 
 This currency they used in making loans, charging thereon 
 varying rates of interest, often higher than twenty per cent. 
 Hence the bankers received two concurrent sets of interest 
 frequently as much as six per cent, in gold in annual interest 
 from the Government on their deposited bonds, and a much 
 larger interest from borrowers for the use of the currency 
 that they were thus allowed to issue on the strength of the 
 bonds. 2 The accruing profits obviously were very great, often 
 averaging twenty, fifty, and at times one hundred per cent., in 
 the course of a year. 
 
 The system of funding the public debt was, like the national 
 banks, borrowed from the English monarchy. Under this sys- 
 tem, a gigantic, non-taxable, interest-bearing debt was perpet- 
 uated. The banks we're enriched by the bonds ; therefore, the 
 bankers saw to it that the public debt was continued and in- 
 creased, and a perpetual bonded debt assured. Every attempt 
 
 1 Of the Union soldiers, 67,000 were slain in battle, 43,000 died of 
 wounds, and 230,000 perished of diseases and other causes. Of the 
 number of indirect deaths produced in families by the absence of ade- 
 quate support arising from breadwinners enlisting in the war, no ascer- 
 tainment, of course, is possible. 
 
 2 From 1863 to 1878, the Government paid out to National banks the 
 enormous sum of $252,837,556.77 as interest on bonds. House Execu- 
 tive Document No. 34, 1879.
 
 486 HISTORY OF THE SUPREME COURT 
 
 to scale down this debt and pay the bonds according to con- 
 tract, was frustrated by the bankers. 
 
 This system caused great public agitation, resulting later in 
 the Greenback political movement. One phase of the finan- 
 cial system, however, ranged the railroad interests in opposi- 
 tion to the bankers; the developing conflict between these two 
 powers, had as we shall see, a striking influence upon the 
 Supreme Court. 
 
 The Banking Power's Sway. 
 
 In 1 86 1 Congress passed an act providing for the issuance 
 of $50,000,000 in Treasury notes. Thereupon the banks, 
 which had been actively engaged in hoarding gold, suspended 
 specie payments on December 30 of that year. This action 
 they took in order to avoid paying gold for Treasury notes. 
 In the next year 1862 Congress passed the Legal Tender 
 Act, authorizing the issuance of $150,000,000 of greenbacks 
 (so called from their color), and retiring the $50,000,000 pro- 
 vided by the act of the previous year. 
 
 But before this bill was finally passed the bankers industri- 
 ously lobbied in Congress, with the result that the bill was 
 altered and mutilated. In its amended form it provided that 
 legal-tender notes should not be receivable for " interest on 
 bonds or notes, which shall be paid in coin." This meant 
 gold ; and as the bankers monopolized the available supply of 
 gold, Government had to borrow it from them at excessive 
 premiums. No sooner did the Government borrow the gold 
 than back it flowed to the bankers in interest on bonds an 
 endless-chain process incessantly enriching the bankers, and 
 this while hundreds of thousands of soldiers were pouring 
 out their blood and wasting health and yielding life. 
 
 This mutilation of the original Legal Tender Act for the 
 exclusive benefit of the bankers moved Representative Thad- 
 deus Stevens, in the debate on February 20, 1862, to make
 
 UNDER CHIEF JUSTICE CHASE 487 
 
 a bitter denunciation. ". . . With my colleague," he said, 
 referring to the first draft of the bill, " I believe that no act 
 of legislation of this Government was ever hailed with as 
 much delight throughout the whole length and breadth of the 
 Union by every class of people without exception, as the bill 
 we passed and sent to the Senate. ... It is true there 
 was a doleful sound come up from the caverns of bullion 
 brokers and from the saloons of the associated banks. . . . 
 They fell upon the bill in hot haste and so disfigured and 
 deformed it that its father would not know it. ... It is 
 now positively mischievous ... it makes two classes of 
 money . . . one for the banks and brokers, and another 
 for the people. . . ." 3 " We did not yield," he said later, 
 " until we found that the country must be lost or the banks 
 be gratified, and we have sought to save the country in spite 
 of the cupidity of the wealthy citizens." So rapacious was 
 the hold-up of the nation by the bankers at a critical time 
 when every particle of energy and every available resource 
 were essential to carry on the war, that even John Sherman 
 denounced the bill. Sherman, as his course as Secretary of 
 the Treasury later proved, was a pliant instrument of the 
 bankers, but he was an extensive railroad stockholder, and at 
 this time the banking and the railroad interests were aligning 
 in opposition. 
 
 Control Finances During the Civil War. 
 
 The act of 1862 merely said that the interest on the author- 
 ized bonds was to be paid in coin, but no explicit statement 
 was made in the bonds as to what form of money the principal 
 should be paid with. According to the law, greenbacks were 
 a " lawful money and a legal tender for all debts, public and 
 private within the United States except duties on imports and 
 
 3 The Congressional Globe, Part I, Second Session, Thirty-seventh 
 Congress, 1861-62: 900.
 
 HISTORY OF THE SUPREME COURT 
 
 interest on aforesaid." A rational construction of the law 
 would have dictated the payment of the principal in green- 
 backs. The soldiers and sailors of the nation were being paid 
 in that paper. But the bankers wanted no greenbacks ; they 
 demanded gold. They had expressly lobbied in Congress to 
 outlaw greenbacks so far as payment of customs dues was con- 
 cerned, knowing that such a provision would depreciate their 
 value. Having accomplished this depreciation, they then 
 threatened that unless the principal were paid in gold no 
 Government bonds would be marketed. Accordingly, on 
 March 3, 1863, Congress compliantly passed an act providing 
 that both interest and principal should be payable in coin, 
 which, of course, signified gold. 4 
 
 Two forms of United States notes, or currency, were issued. 
 One kind bore interest; of these $577,000,000 were issued by 
 1866. The other varieties called greenbacks, demand notes 
 and national bank notes, bore no interest. In 1864, $449,000,- 
 ooo of greenbacks were in circulation. Forming what was 
 considered the better class of currency, the interest-bearing 
 Treasury notes were closely hoarded by the banks which, in 
 return, issued their own depreciated bank notes and forced 
 them into general circulation. By the year 1865 more than 
 $700,000,000 State and National bank notes were in circula- 
 tion. ..." Immense interests," said Hugh McCulloch, 
 Comptroller of the Currency, in his second report, " have been 
 at work all over, and concentrated in New York to raise the 
 price of coin, and splendid fortunes have been apparently 
 made by their success. . . . Gold has been a favorite arti- 
 cle to gamble in. ... The effect of all of this has been, 
 not to break down the credit of the Government, but to in- 
 crease enormously the cost of the war and the expense of 
 living . . ." 
 
 4 See, Belles' " Financial History of the United States," pp. 79, 80, 
 139, etc.; Stunner's "History of American Currency;" Dunbar's 
 " Laws of the United States Relating To Currency and Finance From 
 1789 to 1890," etc
 
 UNDER CHIEF JUSTICE CHASE 489 
 
 " Mr. Chase," says a commentator describing his activities 
 while Secretary of the Treasury, " not a banker by profession, 
 and without much experience in financing, had yet proved him- 
 self obstinated and unwilling to learn. Whatever were his 
 intentions and it must be allowed that they were probably 
 good and his difficulties great he had, yet without consenting 
 to .what the bankers desired on many points, actually played 
 into their hands. Men said his ambition to be President had 
 been his weakness. ." 5 
 
 Chase as Bank Attorney and Director. 
 
 That Chase was subservient to the banking interests was a 
 fact ; but the statement that he had had no experience in bank- 
 ing affairs reveals complete ignorance of his career. His ap- 
 pointment as Secretary of the Treasury had, Tin fact, been 
 seconded by the powerful bankers, knowing that as a bank 
 director and bank lawyer, he would well represent them, and 
 conserve their particular interests at almost every point. 
 
 When a lawyer in private practice, Chase's specialty had 
 been, for many years, the advocacy of the interests of certain 
 banks; and during a part of that time he had been a bank 
 director. Soon after removing to Cincinnati he had formed, 
 in 1832, a partnership with D. A. Caswell. For the payment 
 of a large bonus, Caswell agreed that Chase was to share 
 equally in all business, including that of the agency of the 
 Bank of the United States, for which institution Caswell was 
 attorney. Thereafter, for many years, Chase appeared in the 
 courts as the attorney for the Bank of the United States. 7 
 
 Of the corrupt career of this institution, we have given 
 a tolerably clear outline in previous chapters ; how $76,000,000 
 
 5 See, Article on Currency, Encyclopedia of Social Reform, Edition 
 of 1897 : 443. 
 
 Van Santvoord, pp. 663-664. 
 
 7 See, Case of Bank of U. S. vs. Dunseth, X Ohio Reports, 21 . and 
 Ibid., 61, etc., etc,
 
 490 HISTORY OF THE SUPREME COURT 
 
 of its. assets had vanished by the y.ear 1841 ; how it had 
 " loaned " $30,000,000 to various members of Congress, edi- 
 tors of newspapers, to politicians in general, to brokers and 
 jobbers and to favorites. A large part of these $30,000,000 
 had been corruptly expended in the long effort to get a 
 recharter from Congress and to subsidize the newspaper press. 
 We have also related how the officials of the Bank of the 
 United States plundered it of large sums: Nicholas Biddle, 
 its president, had paid out $1,018,000 for which no vouchers 
 could be found; John Andrews, its cashier, embezzled $426,- 
 930.67 of its funds, and Joseph Cowperthwaite, its second 
 assistant cashier, defaulted in the sum of $55,081. 95. 8 
 
 Corrupt Methods of the Bank of the United States. 
 
 As an illustration of the methods of the Bank of the United 
 States in clandestinely securing legislation, the following in- 
 cident, as related by Benton, and confirmed by the official- 
 records, showed how it bribed a charter through the Pennsyl- 
 vania Legislature, after President Jackson had vetoed its re- 
 charter obtained by corrupt means from Congress. 
 
 " On the I9th day of January, in the year 1836," Benton 
 relates, "a bill was reported in the House of Representatives 
 of the General Assembly of Pennsylvania, entitled, ' An act to 
 repeal the State tax, and to continue the improvement of the 
 State by railroads and canals; and for other purposes.' It 
 came from the standing committee on ' Inland navigation and 
 
 8 After Biddle's retirement from the presidency of the Bank of the 
 United States, that institution brought a civil action against him and 
 Andrews for the restitution of more than $400,000 that they were 
 charged with stealing from the bank in 1836. The theft, so it was 
 charged, was concealed by fraudulent entries, burning of vouchers and 
 by other methods. By the time the suit came up, in 1844, Biddle had 
 died, but the action was pressed against Andrews. His answer was a 
 general denial, but Judge Parsons decided that he was convinced that 
 the claim for recovery was one which could be enforced, and he over- 
 ruled Andrews' demurrer. See, Parsons' Select Equity Cases of the 
 First Judicial District of Pennsylvania, 1844, II : 31-63. Also, Pa, 
 House Journal, 1842, Vol. II : Appendix, 182.
 
 UNDER CHIEF JUSTICE CHASE 491 
 
 internal improvement'; and was, in fact, a bill to repeal a tax 
 and make roads and canals, but which, under the vague and 
 usually unimportant generality of ' other purposes ' contained 
 the entire draught of a charter for the Bank of the United 
 States adopting it as a Pennsylvania State Bank. 
 
 " The introduction of this bill, with this addendum, was a 
 surprise upon the House. No petition had asked for such a 
 bank; no motion had been made in relation to it; no inquiry 
 had been sent to any committee ; no notice of any kind heralded 
 its approach ; . . . the unimportant clause of ' other pur- 
 poses ' hung on at the end of the title, could excite no suspicion 
 of the enormous measures which lurked under its unpreten- 
 tious phraseology. . . . Some members looked at each 
 other in amazement. But it was soon evident that it was the 
 minority only that was mystified that a majority of the 
 elected members in the House, and a cluster of exotics in the 
 lobbies, perfectly understood the instrusive moment ; in brief, 
 it had been smuggled into the House, and a power was present 
 to protect it there . . ." 9 
 
 Charges of bribery forced the Pennsylvania Legislature to 
 make a show of investigation. The Senate appointed an in- 
 vestigating committee which proceeded to swear witnesses by 
 the usual oath, " You do solemnly swear by the Holy Evan- 
 gelists of Almighty God/' etc., etc. Bribery was freely ad- 
 mitted. Colonel Jacob Krebs, a Senator, testified, for example, 
 that on February 10, 1836, he had been offered $4,000 or 
 $5,000 by James L. Dunn, for his favorable vote, and that he 
 was at another time offered $20,000 by Henry W. Conrad, 
 the money for his vote to be paid two weeks after the bill 
 became a law. 
 
 The Senate Committee handed in a whitewashing report. 10 
 But a Pennsylvania House investigating committee, appointed 
 in 1840, with power to go back a number of years, reported 
 
 9 " Thirty Years in the Senate," Vol. II : 23-24. 
 10 Pa. Senate Journal, 1835-1836, Vol. 1 : 305-306.
 
 492 HISTORY OF THE SUPREME COURT 
 
 that the sum of $130,000 had been expended in bribes by the 
 Bank of the United States. " It is hard to come to the con- 
 clusion," the committee commented, " that men of refined 
 education, and high and honorable character, would wink at 
 such things, yet the conclusion is unavoidable." As to whom 
 the $130,000 was paid, the committee professed to be utterly 
 in the dark ; " there was no evidence that money was paid to 
 anybody." " 
 
 Chase's Appearance for Banks. 
 
 This was the bank for which Chase was Cincinnati coun- 
 sel during this identical period; the methods of the United 
 States Bank in Ohio did not differ from those it used at 
 Washington and in Pennsylvania. Its corruption was estab- 
 lished, yet Chase displayed no scruples at continuing to draw 
 his fees, and in doing its law work. 
 
 At the same time he was one of the first directors of the 
 Lafayette Bank of Cincinnati, established in 1834. For ten 
 years he remained on the board of directors of the Lafayette 
 Bank, also acting as secretary of the board, and serving as 
 attorney for the bank. Among his many appearances as 
 attorney for the Lafayette Bank was that in the action, in 
 1841, of the State of Ohio against the Lafayette Bank, the 
 Commercial Bank, and the Franklin Bank of Cincinnati. 
 This was an action by the State for the forfeiture of the 
 charters of those banks for illegally issuing large sums of 
 notes to circulate as money ; for receiving a greater rate of 
 interest than six per cent, per annum ; for suspending payment 
 of notes payable in coin; for expanding their circulation to 
 an amount greater than four times the amount of coin in 
 their vaults, and then suddenly withdrawing a great part of 
 those notes from circulation. 12 
 
 11 Pa. House Journal, 1842, Vol. II : Appendix, 172-531. 
 
 12 X Ohio Reports, 543. Judge Lane decided in favor of the banks 
 upon the ground that specific legislation necessary to bring about the 
 forfeiture of their charter had not been enacted.
 
 UNDER CHIEF JUSTICE CHASE 493 
 
 Thus, considering his long service as a bank director and 
 attorney, Chase was by no means as unsophisticated regard- 
 ing financial matters and practices of the banking world as 
 some of his ill-informed critics would have it. His lucrative 
 practice was almost wholly one of a bank attorney, but when 
 any case involved the defense of a fugitive slave he would 
 gladly tender gratuitous service. His fortune, in 1861, was 
 estimated at $65,000; his intimate friend and biographer, 
 Schuckers, says that just before the Civil War, Joshua Hanna 
 invested $5,000 for Chase in stock of the Cleveland and Pitts- 
 burg Railroad, and that Chase reaped $5,000 profit by selling 
 
 the stock when its market value went up. 13 
 
 i 
 
 Favors the Bankers When Secretary of the Treasury. 
 
 It was Chase who, as Secretary of the Treasury, proposed 
 and urged the establishment of the national banking system. 
 And it was under this system, so extraordinarily favorable 
 to the bankers that, as we have explained, the bankers were 
 allowed to fasten their iron hold on the National Treasury, 
 and drain it for their own aggrandizement. Immense private 
 fortunes were soon acquired by these means, which fortunes 
 grew still greater by the further methods used by the bankers 
 in forcing the Government to award them bond issues on their 
 own terms. When Secretary Chase tried to place a large 
 issue of five-per-cent. bonds authorized by Congress, the banks 
 held off from taking them up. Their object was soon seen. 
 Using their refusal as an argument, Chase induced Congress 
 to authorize more legal-tender notes until that currency was 
 depreciated to a low point. The bankers then hurried for- 
 ward to get hold of this depreciated currency, and Chase al- 
 lowed them to tender it, at its face value, for Government 
 bonds. Was Chase the accomplice or dupe of the banking 
 interests? Whether he was the one or the other, the result 
 
 ""Life of S. P. Chase" (1874) : p. 617.
 
 494 HISTORY OF THE SUPREME COURT 
 
 was the same. Deliberately or supinely he played into the 
 hands of the bankers, permitting them to buy up the bonds 
 with a depreciated currency. 
 
 The Greenback Party, originating largely in this manipula- 
 tion of the currency in favor of the bankers and bondholding 
 class, took the view that this condition was the result of a 
 definite conspiracy. It charged that the bankers, national and 
 international, had conspired to make the issue of the war 
 greenbacks a failure by inducing Congress to prevent their 
 being legal tender for customs duties and for payment of the 
 national debt, and thus depreciating their value. It declared 
 that there had been a conspiracy to cause needless bonds to 
 be issued and to buy up those greenbacks at their depreciated 
 value, purchasing the bonds with them, and paying for the 
 bonds with greenbacks accepted at their face value. It set 
 forth that while these bonds had been bought with green- 
 backs at thirty cents on the dollar, yet Congress had been 
 influenced, under the pretense of " national faith " and " an 
 honest dollar " to declare those bonds redeemable in gold. 
 The banker was allowed to get his gold while, so the Green- 
 back Party complained, the soldiers and sailors of the war 
 who had risked their lives, " and got no interest " had been 
 paid in greenbacks. 14 
 
 Corruption of Congress. 
 
 Much as Secretary Chase was denounced at the time, the 
 full odium for these transactions could not justly be imputed 
 to him. A large share of the responsibility fell upon the 
 majority of Congress which had passed the successive laws 
 
 14 The demand that bonds which did not distinctly call for payment 
 in coin should be paid in greenbacks was called the " Ohio idea." and 
 was agitated as early as 1868. In the election of 1874, Peter Cooper, 
 as the Presidential nominee of the Greenback Party, polled 81,737 
 popular votes. Subsequently the Greenback-Labor Party polled more 
 than a million votes. It was the predecessor of the Populist Party.
 
 UNDER CHIEF JUSTICE CHASE 495 
 
 construed so favorably to the banking interests by Chase. 
 The particular arguments influencing that majority in the 
 passage of various acts may be judged from the fact that at 
 the very time when the murderous battles of the Wilderness 
 were being fought, the promoters of the Union Pacific Rail- 
 road expended nearly $436,000 in bribes for the enact- 
 ment of the act of July 2, 1864, giving that company Govern- 
 ment subsidies amounting to from $16,000 to $48,000 a mile, 
 according to the topography of the country, and making the 
 company a present of about 12,000,000 acres of public domain, 
 and so altering the original act that the Government had little 
 opportunity of getting back its outlays. 15 
 
 Banks Seek a Monopoly of Issuing Currency. 
 
 After the banks had manipulated the greenback issues to 
 suit their own purposes, and had glutted themselves with 
 Government bonds largely bought with depreciated greenbacks 
 at their face value, they aimed to get rid of Government-issued 
 currency. By October 9, 1869, the 1,617 national banks in 
 the United States held about $339,000,000 of Government 
 bonds on which they circulated their bank notes. Of legal 
 tender notes they held about $129,000,000. But their hold- 
 ings of specie amounted to some $23,000,000; as a matter of 
 fact only $15,000,000 in gold was in that year in actual circu- 
 lation in the United States. The bankers and speculators 
 monopolized and controlled the gold supply. 
 
 This being so, they now planned to have the legal-tender 
 issues outlawed so far as they applied to payments on con- 
 tracts. The bankers were the creditor class; and if the courts 
 were to decide that promises to pay on contracts were not 
 
 15 Reports of Committees, Credit Mobilier Reports, Forty-second 
 Congress, Third Session, 1872-73, Doc. No. 78: xviii. The "Wilson" 
 investigating committee of the Senate reported that the evidence proved 
 that nearly $436,000 had been disbursed in connection with the passage 
 of the amendatory act of July 2, 1864.
 
 496 HISTORY OF THE SUPREME COURT 
 
 payable in legal-tender currency, then the payments would 
 have to be made in gold. Inasmuch as the banks held a mo- 
 nopoly of the available gold supply, the debtor class would 
 have to get the gold from the banks at the bankers' own 
 terms. 
 
 But another question was involved. The banks sought a 
 complete monopoly of the traffic of issuing currency. They 
 desired no competition in that line from the Government. 
 The one form of currency represented private ownership and 
 control of that essential medium of exchange ; the other pub- 
 lic ownership and control. The banks planned to efface the 
 Government from the money-issuing function. But how? 
 By having the courts declare the Legal Tender Act unconstitu- 
 tional. True, various State courts, with the single exception 
 of the Supreme Court of Pennsylvania, had decided in favor 
 of the law, but the Supreme Court of the United States was 
 still to speak, and it was upon that Court that the banking 
 interests now confidently depended. 
 
 Banking and Railroad Interests Collide. 
 
 It was precisely at this juncture that the banking power 
 came into ,the sharpest collision with the rapidly expanding 
 railroad interests. 
 
 The preceding decades had been a period of phenomenal 
 construction of railroads. In the year 1851, there were less 
 than 9,000 miles of railroad in the entire United States. In 
 the next six years 17,000 miles were built. By the beginning 
 of the Civil War, a total of 30,000 miles of railroad had been 
 constructed. During the next decade at least, before 1873 
 36,000 more miles of railroad were built, constituting a 
 greater extension than the entire mileage of the preceding 
 thirty-four years. 10 
 
 Although, as we shall see, the promoters of those railroads 
 
 16 See, " Poor's Railroad Manual," for the years in question.
 
 UNDER CHIEF JUSTICE CHASE 497 
 
 had bribed act after act through Congress or State Legisla- 
 tures or both, and had corrupted county officials and munici- 
 palities to give them stupendous gifts of public lands, public 
 funds and extraordinary privileges, yet the construction ne- 
 cessities of actual cash were so great that necessarily the 
 railroad corporations had to make out mortgages. As we 
 have said, very little gold was in circulation. The receipts 
 of the railroad companies were almost wholly in legal-tender 
 notes. If they were required to pay their fixed charges or 
 contracts in gold, they would be so completely at the mercy of 
 the banks that it would only be a short time before the banks 
 would own outright virtually every railroad system. 
 
 This was the prodigious contest now under way between 
 these two powerful interests. Which side would win? The 
 Supreme Court of the United States would decide. 
 
 Supreme Court's Composition. 
 
 The composition of the Supreme Court of the United 
 States at this time was mixed, in point of the economic inter- 
 ests represented by its members. President Lincoln had ap- 
 pointed four Associate Justices Noah H. Swayne, of Ohio, 
 Samuel F. Miller, of Iowa, and David Davis, of Illinois, in 
 1862, and Stephen J. Field, of California, in 1863. 
 
 As an attorney, Swayne had represented various miscel- 
 laneous corporations the Columbus Insurance Company, 
 the Bank of Wooster, the Columbus Machine Manufacturing 
 Company, the Ohio Mutual Insurance Company, the Delaware 
 County Bank, the Bank of Circleville and other companies 
 and institutions. 17 He had been an attorney for the Lafayette 
 Bank, of Cincinnati, 18 of which bank, as .we have related, 
 Chase had long been a director. 
 
 "XVII Ohio Reports, 224, etc.; I Ohio State Reports, 234; XI Ibid., 
 163; XII Ibid., 178, etc., etc. 
 18 VIII Ohio State Reports, 28.
 
 49^ HISTORY OF THE SUPREME COURT 
 
 When an attorney for the Mad River and Lake Erie Rail- 
 road, Swayne had contested an action attracting some adverse 
 notice in the year 1856. Barber, a freight train conductor, 
 had brought an action for severe injuries sustained while at 
 work, in 1852. The cars were defective, not being supplied 
 with brake rods, chains and other apparatus ; and while en- 
 gaged in his duties, Barber was thrown under the cars which 
 passed over him breaking one of his legs and crushing his 
 right arm. Thereafter, he was disfigured and maimed for 
 life, and unable to make a living. The jury in the lower 
 court gave him a verdict for $9,500 damages. 
 
 Swayne and W. F. Stone, as attorneys for the railroad, 
 carried the case on appeal to the Ohio State Supreme Court. 
 In December, 1861, Chief Justice Bartley of that court re- 
 versed the judgment of the district court on the ground 
 (among other grounds mentioned) that a railroad company 
 was not liable in an action for damages in consequence of 
 defective cars where (so the decision literally read) the de- 
 fects of the cars were unknozvn to both parties, and where 
 neither party was at fault. Barber the decision further 
 read had voluntarily assumed the risk ; he had had a right 
 to decline his job or refuse to run the train ; and when he 
 voluntarily took the job, he assumed the risk. 19 Thus, after 
 nearly ten years' futile attempts to get redress, the mutilated 
 brakeman was condemned to live out his wretched life in 
 penniless misery, while Swayne ascended to the Supreme 
 Court of the United States. 
 
 Associate Justice Miller subsequently developed more than 
 pronounced railroad leanings, as was shown in a noted cynical 
 decision of his ; but what especially commended him at this 
 time was that he had strongly favored the emancipation of 
 negro slaves. 
 
 Davis was a personal friend of Lincoln ; after Lincoln's 
 
 19 See, Case of Mad River and Lake Erie R. R. vs. Barber, V Ohio 
 State Reports, 541-568.
 
 'JNDER CHIEF JUSTICE CHASE 499 
 
 assasn'natio'i, hf. was one of the administrators of Lincoln's 
 estate. Davi.s had married Sarah Walker of Pittsfield, Massa- 
 chusetts, who had a considerable fortune. For an adroit pol- 
 itician Davij v^as unusually conscientious and progressive ; he 
 had been a judge in Illinois from 1848 to 1862, and there was 
 highly spoken of and respected. 20 Miller was forty-six years 
 old, Davis, forty-seven, at the time of their appointment. 
 
 Justice Field's Career. 
 
 The career of Associate Justice Field was filled with 
 scandals both before and after his elevation to the Supreme 
 Court. Born at Haddam, Connecticut, in 1816, he was the 
 son of a Congregationalist clergyman. He had studied law 
 in the office of his brother, David Dudley Field, and was his 
 partner from 1841 to 1848. 
 
 David Dudley Field had married a rich widow ; " hence," 
 says a contemporary account, " a portion of his wealth," which 
 amounted to $ioo,ooo. 21 David Dudley Field became one of 
 the attorneys for the notorious briber, Jacob Sharp, after 
 Sharp had bribed the New York Board of Aldermen, in 1853, 
 to grant him a street railway franchise for Broadway. 22 
 
 jd f, e ever forfeit this respect. So esteemed was he for his 
 progressive views that, in February, 1872, the National Convention of 
 the Labor Reform Party nominated him as its candidate on a platform 
 which declared, among other things, in favor of a national currency, 
 " based on the faith and resources of the nation " ; which demanded 
 the establishment of an eight-hour law throughout the country, and the 
 payment of the national debt " without mortgaging the property of the 
 people to enrich capitalists." Davis accepted. At the Liberal Repub- 
 lican Party Convention, in 1872, he received 92% votes for the nomina- 
 tion for President, but determined to retire from the final contest. 
 The convention nominated Horace Greeley. 
 
 21 " The Wealth and Biography Of The Wealthy Citizens of New 
 York," 1846. 
 
 2 - See, Case of Milhau vs. Sharp, XV Barbour's Supreme Court Re- 
 ports [N. Y.] : 193-232. For details of the bribery see Testimony 
 before the Grand Jury, Documents of the N. Y. Board of Aldermen. 
 XXI, Part II, No. 55 : 1333-1335. The courts, at the time, refused to 
 allow the franchise to be carried into effect. But twenty-one years 
 later in 1884 Sharp was more successful. With $500,000 in cash,
 
 5OO HISTORY OF THE SUPREME COURT 
 
 Subsequently, David Dudley Field was attorney o/ tho c 
 even more notorious bribers and railroad wreckf:tj aud 
 looters, Jay Gould and James Fisk, Jr. 23 And it may be men- 
 tioned here that (no doubt as a token of pure brotherly affec- 
 tion) David Dudley Field made, in 1880, a gift to Af^ociate 
 Justice Field of a deed to a fine house and grounds in Wash- 
 ington that Justice Field from thence to his death owned and 
 occupied. The fact of this gift Justice Field himself stated 
 in his will. Another brother of Associate Justice Field was 
 Cyrus W. Field, the inventor of the submarine telegraph 
 cable. Cyrus Field, after the Civil War, aligned himself with 
 Jay Gould in the manipulation of the elevated railroads in 
 New York City, in which roads he was a large stockholder. 
 For a time, he was a director of the Manhattan Railway and 
 also of the New York Central and Hudson River Railroad, 24 
 but subsequently was stripped by Gould of his elevated~~rail- 
 road stock, and died a comparatively poor man. 25 
 
 Going to California, Stephen J. Field settled at Yubaville, 
 of which place he was elected mayor, in 1850. He was, in- 
 deed, mayor and judge in one, and carried a six-shooter both 
 to enforce his authority and to protect himself. Heralded as 
 a prominent capitalist and lawyer from the East, he bought 
 Yubaville lots, put up zinc houses in MarysviJle, and rented 
 those habitations at enormous rentals. From the sale of part 
 of the lots he was said to have cleared a profit of $25,000; 
 and it was related of him that he had not been in Marysville 
 
 he bribed the Board of Aldermen to give him a franchise for Broad- 
 way. (See, Myers' "History of Public Franchises In New York City," 
 139-143.) But although the bribery was exposed / and a number of 
 aldermen were convicted and sent to prison, the courts declared the 
 franchise indefeasible. 
 
 23 See, V Lansing's Reports, 26, concerning the scandalous effort of 
 Gould and Fisk to get control of the Albany and Susquehanna Rail- 
 road. The circumstances are narrated in the " History of the Great 
 American Fortunes," Vol. Ill: 180-183. Field also appeared for Fisk 
 in a case involving the Chicago and Rock Island Railroad. 
 
 24 See, " Poor's Railroad Manual " for 1880: p. 182. 
 
 25 The process is described in the " History of the Great American 
 Fortunes," Vol. Ill : 84-85.
 
 UNDER CHIEF JUSTICE CHASE 5OI 
 
 more than four months before he had accumulated $50,000.' 
 Getting into a dispute with Judge Turner of the California 
 Circuit Court, primarily over the abolition question, Turner 
 claimed that Field and two other attorneys had villified the 
 court, and on June 10, 1850, Judge Turner expelled them from 
 the bar. Seven days later Judge Turner committed Field to 
 prison for forty-eight hours and to pay a fine of $500 for con- 
 tempt of court. But the California Supreme Court issued 
 a mandamus compelling Judge Turner to reinstate Field and 
 the two other attorneys as members of the bar. 27 
 
 Interests Represented by Field. 
 
 That Field was interested in some of the old Mexican land 
 grants (genuine or otherwise) in California was well known; 
 and it was due largely to the influence of the promoters of 
 these claims as well as to the influence of Leland Stanford 
 and his associate railroad promoters that Field was elected 
 to the California Supreme Court, becoming its Chief Justice 
 in 1859. When a judge of this court Field as was openly 
 charged gave especial protection to land titles, particularly 
 those alleged to have been derived from Mexican authority. 
 In short, he was the judge from whom the land jobbers and 
 claimants could always expect favorable consideration. A 
 letter was written at this time by United States Senator David 
 C. Broderick saying that Judge David T. Terry who sat on 
 the bench with Field was the only honest man on the Cal- 
 ifornia Supreme Court Bench. But when Broderick later 
 took this statement back, so far as it excepted Terry, Brod- 
 erick was challenged to a duel by Terry, in 1859, and was 
 
 26 On September 26, 1850, he mortgaged various of his Marysville 
 lots as security for $6,500 of notes, and three months later conveyed 
 all of his estate in trust for the benefit of creditors. Case of Bentham 
 vs. Field, Rowe et al., I California Reports, 387. 
 
 2T See, People ex rel. Stephen J. Field vs. Turner, etc., I California 
 Reports, 144 and 152, and Ibid., 188-189.
 
 5O2 HISTORY OF THE SUPREME COURT 
 
 shot and killed. Thirty years later, Judge Terry was himself 
 killed by a United States marshall accompanying Field after 
 Terry had slapped Field in the face. 28 
 
 The sponsor and pusher of Field for place and power was 
 Leland Stanford, himself a lawyer. Projecting the Central 
 Pacific Railroad Company in 1861, Stanford, Collis P. Hunt- 
 ington, Charles Crocker and Mark Hopkins successfully de- 
 bauched legislatures and Congress, obtained $25,000,000 in 
 Government bonds, millions more from the State of California 
 and counties in that State, and a gift of a vast area of public 
 lands all donated, actually or practically, for the purpose of 
 enabling them to build their privately owned railroad. While 
 Huntington was in Washington bribing Congress, Stanford 
 caused himself to be elected Governor of California, so as 
 to manipulate that State for the interests of the quartet. The 
 enormous thefts that Stanford and his partners eventually 
 consummated are set forth in the public documents, and are 
 elaborately detailed elsewhere. 29 
 
 Governor Leland Stanford personally urged President 
 Lincoln to appoint Field to the Supreme Court of the United 
 States. 30 It was generally understood that with Field upon 
 the Bench, the predatory land claimants had at least one Jus- > 
 tice upon whose favor they could generally rely. 
 
 The Suttter Case. 
 
 The very next year after Associate Justice Field took his 
 seat, a California land-claim case came up in which action he 
 was disqualified from sitting for reasons best known to him- 
 self. This action was what was called the " Sutter Case." It 
 
 28 See later. 
 
 29 See, Chapter on " The Pacific Quartet," " History of the Great 
 American Fortunes," Vol. III. In cash alone they stole more than 
 $50,000,000, and still further enriched themselves by vast issues of 
 stocks and bonds. See later. 
 
 30 The author has been personally assured of this by a man (still 
 living) who was Stanford's private secretary at this time.
 
 UNDER CHIEF JUSTICE CHASE 503 
 
 involved, according to the Supreme Court of the United 
 States, " immense interests in California, and questions greatly 
 agitating a particular portion of that State." 
 
 In 1852 John A. Sutter had come forward with a claim 
 purporting to have been given by the Mexican Governor, 
 Alvarado, in 1841. The next year, 1853, Sutter submitted to 
 the Board of Land Commissioners another claim for twenty- 
 two leagues more, alleged to have been granted by Michel- 
 torena, in 1845. Sutter had been a military commandant 
 under Mexican authority, and had been charged with civil 
 jurisdiction, also; he was the very official who had recom- 
 mended a grant of six square leagues to Pearson B. Reading 
 whose claim we have described in a previous chapter. Sut- 
 ter's claims to thirty-three leagues in all were confirmed by 
 the Board and by the District Court, but the Supreme Court 
 of the United States allowed only the first claim of eleven 
 square leagues as valid. 31 
 
 Now, two surveys of the allowed eleven-league claim had 
 been made; the new question before the Supreme Court was, 
 therefore, which of the surveys should be validated. 
 
 The first survey, made in 1859, was so manipulated as to 
 break the claim into two parts which were not continuous. 
 By this means the claim was made to include a part of the 
 present county of Sacramento ; then the survey was run along 
 the Feather River ; an intervening distance of several miles 
 was marked out to separate one part of the claim from the 
 other; then the claim began again at a place called Canadian 
 Ford and ran up to, and included, Marysville. 
 
 The second survey, made by the Surveyor-General in 1863, 
 located the eleven leagues in a long continuous line of narrow 
 tracts along the Feather and American rivers. 
 
 The majority of the Supreme Court of the United States 
 ordered that the survey of 1859 be substituted for that of 
 1863. Thus the Sutter claimants were able to appropriate 
 
 81 U, S, v?, gutter, XXI Howard, 170.
 
 504 HISTORY OF THE SUPREME COURT 
 
 some of the finest parts of Sacramento County and Marys- 
 ville. The note in the case reads : " Mr. Justice Field did 
 not sit in the case, nor take part in its decision." 32 
 
 Justice Grier's Resignation Demanded. 
 
 Of the men thus comprising the membership of the 
 Supreme Court of the United States, the banking interests 
 knew to a certainty upon whom they could depend. That the 
 most vigorous, yet secret, influences were brought to bear 
 upon two Justices at least, and possibly others, is fairly 
 certain. 
 
 In the case of Justice Grier, the records of the Supreme 
 Court itself strongly tend to indicate this. We have seen in 
 the previous chapter how before the Dred Scott decision 
 Justice Grier, as revealed by his own correspondence, was in 
 collusion with President-elect Buchanan, and through Bu- 
 chanan, with the representatives of the slaveholders who had 
 put Buchanan into office, whose interests and plans Buchanan 
 was elected to further. Of Buchanan's selecting certain arch 
 slavery representatives as members of his Cabinet, and how 
 they stripped the North of munitions of war and transferred 
 them to the South this is an elemental historical fact. In 
 the Legal-Tender case, Justice Grier's course was even more 
 serpentine ; he played fast and loose with both sides, singularly 
 shifting from one side to another. His vacillation was so 
 suspicious and remarkable, that not a single one of his col- 
 leagues, either those favoring the Legal Tender Act or those 
 against it, could find any excuse for his action ; they lost pa- 
 tience, and evinced their distrust by the significant and un- 
 precedented action of demanding his resignation. 
 
 " When," says Rhodes, " the determination of the Court 
 was arrived at on November 27, 1869, four justices concurred 
 with Chase: Nelson, Clifford, Grier and Field, but before the 
 
 32 II Wallace's Reports, 587.
 
 UNDER CHIEF JUSTICE CHASE 505 
 
 opinion was read Grier resigned. Swayne and Davis agreed 
 with Miller. The decision could be stated as five or four 
 to three according to one's individual preferences, but as a 
 matter of history, the concurrence of Grier carries no weight 
 whatever. When the first vote on the Hepburn vs. Griswold 
 case was taken in conference, the Court stood 4-4, Grier pro- 
 nouncing in favor of the constitutionality of the Legal Tender 
 Act ; but before the conference closed, he, in another case, 
 stated an opinion inconsistent with that vote. This incon- 
 sistency being called to his attention, he changed his vote and 
 went over to the side of Chase, Nelson, Clifford and Field. 
 Within a week from that day every judge on the bench au- 
 thorized a committee of their number to say to Grier ' that it 
 was their unanimous opinion that he ought to resign.' " 33 
 Grier did accordingly, in December, 1869, resign, his resigna- 
 tion to take effect on January 31, 1870. 
 
 Legal-Tender Decision Favors the Bankers. 
 
 By a majority of one, therefore, the Legal Tender Act 
 was declared unconstitutional, Chief Justice Chase himself 
 writing the opinion. The decision, handed down on Feb- 
 ruary 7, 1870, declared that prior to the enactment of the 
 Legal Tender law of 1862, gold formed the only legal tender, 
 and that all promises to pay in contracts were tacitly under- 
 stood to be payable in gold. So far as the Legal Tender Act 
 applied to preexisting contracts, it was, under Chase's de- 
 cision, inoperative; the act could not be retroactive. 34 
 
 Why did Chief Justice Chase decide against the constitu- 
 tionality of a law that as Secretary of the Treasury he had 
 been known to view as being thoroughly constitutional ? The 
 explanation generally given was that in his incorrigible aspira- 
 
 33 " History of the United States, 1850-1877," Vol. VI : 262-263, citing 
 statement on April 30, 1870, by Swayne, Miller, Davis, Strong and 
 Bradley. Also, Bradley's " Miscellaneous Writings," p. 73. 
 
 34 Case of Hepburn vs. Griswold, VIII Wallace's Reports, 626.
 
 506 HISTORY OF THE SUPREME COURT 
 
 tion to become President, he desired to gain the further good 
 will of the bankers, and to insure their support. Some critics 
 held that in view of his inconsistencies he had a private un- 
 derstanding with the banking interests, but no evidence what- 
 ever has ever been produced to bear out that charge. That 
 he was actuated by personal mercenary motives no one then 
 believed, or now imputes. He was a politician, and was 
 willing to do whatever could advance his political ambitions 
 a form of corruption which, as we have seen, had influenced 
 previous members of the Supreme Court. Assuming that he 
 was personally honest, as honesty was understood, he was 
 politically dishonest. 
 
 " Chase's open craving for the Presidency," Rhodes nar- 
 rates, " detracted from the weight of his opinion. In the 
 spring of 1869, the Chief Justice and George F. Hoar walked 
 home together from a meeting of a scientific club in Wash- 
 ington. For the whole distance, about a mile, Chase talked 
 of the next nomination for the presidency, the prospects of 
 the various candidates and the probable chances of a Demo- 
 cratic candidate who should appeal to Republicans disaf- 
 fected with the present policies of their party. Somewhat 
 later, during a half hour's drive across Baltimore, he talked 
 incessantly in the same strain to a stranger. He had the 
 presidency ' on the brain/ wrote Hoar. His conversations, 
 his solicitations became a scandal and must have led his as- 
 sociates in the consultation room to look upon him with sus- 
 picion. . . ." 35 Rhodes, nevertheless, thinks that Chase, 
 in the legal-tender decision, acted from honest conviction. 
 
 But there was another factor that Rhodes neither explains 
 nor even mentions. Infallibly, a man's early economic in- 
 terests, associations and training, long persisted in, have a 
 determining influence upon his views, and conspire to sway 
 or prejudice him in one direction or another. As a young 
 
 35 " History of the United States, 1850 to 1877," Vol. VI : 266, citing 
 Hoar's " Autobiography," Vol. 1 : 282.
 
 UNDER CHIEF JUSTICE CHASE 507 
 
 lawyer, and in middle age, Chase's self-interested associations 
 were mainly with bankers, and as an older man he was con- 
 stantly, as Secretary of the Treasury, in personal touch with 
 the foremost bankers of the country. Nearly his whole adult 
 life, it may be said, was so far as his personal interests 
 and connections went an unbroken association with bankers, 
 and a corresponding susceptibility and flexibility to their 
 interests. In the light of this fact and a highly important 
 one, reflecting the whole processes of present society upon 
 one's mental attitude some clear explanation is afforded 
 of at least one reason why Chase favored the banking power. 
 
 The same influence probably had its effect upon Justice 
 Clifford, whose family, as we have noted, was connected by 
 a double marriage with the largest banking family in Port- 
 land, Maine. As for Justice Nelson, he was a relic of the era 
 of state banking, with its wild-cat currency issue, of which he 
 had been an avowed advocate. 
 
 Nor was Justice Field's stand a mystery. In concurring 
 with the majority he held that the legal-tender clause was 
 unconstitutional as applied to prior contracts only. Such a 
 dictum could in nowise affect the interests of his patrons, 
 Leland Stanford and Collis P. Huntington. The mortgages 
 that Stanford and his fellow promoters gave, were although 
 subsequent to 1862, mortgages to the Government, not to 
 private bankers. And the plan of cheating the Government 
 out of much of its advances for the building of the Central 
 Pacific Railroad was, thanks to the act of 1864, already formu- 
 lated, to be finally consummated later by means of a decision 
 of the Supreme Court of the United States, with Justice Field 
 on the Bench. 
 
 Congress Estops the Supreme Court. 
 
 In striking contrast with the Supreme Court's edict of 
 unconstitutionally in the legal-tender case was its action
 
 508 HISTORY OF THE SUPREME COURT 
 
 in another case at this. time. Congress had passed various 
 laws designed to facilitate reconstruction measures in the late 
 rebellious states, and to enforce obedience to the military 
 authorities in control. William H. McCardle was arrested in 
 Southern Mississippi charged with attacks, in a newspaper of 
 which he was editor, upon General Ord and other officers. 
 Alleging unlawful restraint, McCardle sued from the Circuit 
 Court to the Supreme Court of the United States for a writ 
 of habeas corpus. The Supreme Court in 1867 was consid- 
 ering asserting its jurisdiction, when, to prevent that court 
 from interfering, Congress, on March 27, 1868, passed a 
 prohibitive act. Section 2 of that act repealed certain parts 
 of the old judiciary act of 1789 which had allowed certain 
 appeals to the Supreme Court of the United States. Further, 
 Section 2 estopped the Supreme Court from exercising juris- 
 diction in the case of any such appeals. 30 
 
 When the McCardle case came up again in December, 
 1868, the Supreme Court was compelled to admit that Con- 
 gress had the power of regulating its jurisdiction. Deliver- 
 ing the Court's unanimous opinion, Chief Justice Chase, in 
 December, 1868, acknowledged the paramount authority of 
 Congress. " It is quite true," he pronounced, " as was argued 
 by the counsel for the petitioner, that the appellate jurisdic- 
 tion of this court is not derived from the acts of Congress. 
 It is, strictly speaking, conferred by the Constitution. But 
 it is conferred ' with such exceptions and under such regula- 
 tions as Congress shall make.' . . . 
 
 " We are not at liberty to inquire into the motives of the 
 legislature. We can only examine into its power under the 
 Constitution, but the power to make exceptions to the appel- 
 late jurisdiction is given in express words. 
 
 " What, then, is the effect of the repealing act upon the 
 case before us? We cannot doubt as to this: Without juris- 
 diction the court cannot proceed at all in any cause. Jurisdic- 
 
 39 XV Statutes At Large, 44.
 
 UNDER CHIEF JUSTICE CHASfi 
 
 tion is power to declare law, and when it ceases to exist the 
 only function remaining to the court is that of announcing 
 the fact and dismissing the cause. And this is not less clear 
 upon authority than upon principle. . . . 
 
 " It is quite clear, therefore, that this court cannot proceed 
 to pronounce judgment in this case, for it has no longer 
 jurisdiction of the appeal; and judicial duty is not less fitly 
 performed by declining ungranted jurisdiction than in exer- 
 cising firmly that which the Constitution and the laws con- 
 fer." 3T 
 
 Here was a case involving so clear-cut a proposition that 
 the Supreme Court could do nothing but admit the full au- 
 thority of Congress in the premises. Had the case concerned 
 a " contract " or the construction of the " obligation of a con- 
 tract " the Supreme Court no doubt would have asserted its 
 power, real or usurped, of deciding upon its constitutionality 
 under that renowned Constitutional clause which had germi- 
 nated in Wilson's brain eighty years before. 
 
 Railroads War Against the Legal-Tender Decision. 
 
 Gratifying as it was to the bankers, the Legal-Tender de- 
 cision, on the other hand, enraged the railroad magnates. 
 The market value of railway mortgages immediately went up 
 perhaps the most significant commentary on what the de- 
 cision meant to the bankers. Every newspaper and politician 
 subsidized by the railroad interests denounced the decision, 
 and conversely, the banking journals praised it. The influ- 
 ence of the Pennsylvania Railroad and other large corporations 
 which had outstanding bonds of issues prior to 1862, was 
 directed against the decision. On the day on which Chase 
 read his opinion gold was quoted at from 121^6 to I2O>. 38 
 
 "See, "Ex Parte McCardle," VI Wallace's Reports, 318, and VII 
 Ibid., 506-515. The Supreme Court, accordingly, dismissed the case for 
 want of jurisdiction. 
 
 ss Rhodes, Vol. VI : 265.
 
 510 HISTORY OF THE SUPREME COURT 
 
 Railroad magnates saw the immediate necessity of opening a 
 newspaper campaign demanding the reversal of the decision. 
 Why, complained the railroad owners, should they be com- 
 pelled to pay the interest and principal of their bonds in gold, 
 when their- passenger fares and freight money were received 
 in paper currency ? 39 From their point of view, a valid com- 
 plaint, most assuredly. 
 
 With these two powerful capitalist groups in direct and in- 
 tense opposition, the contest was clearly defined, and the final 
 result impatiently awaited. 
 
 The bankers had won in the Supreme Court. But in Con- 
 gress the railroad power had been steadily increasing. Within 
 ten years great changes in representation had taken place. 
 The immense donations of public lands and money that the 
 railroad promoters had received from Government, States, 
 counties and municipalities, now constituted the basis of a 
 gigantic power. The railroad corporations had systematically 
 corrupted politics ; they usually dictated who should go to 
 Congress, and who should be defeated. They named State 
 officials and judges of State courts. Suddenly they were 
 confronted with the urgent necessity of securing control of 
 the Supreme Court of the United States, and of insuring that 
 control quickly. Some of the ablest men in Congress po- 
 litical leaders of both parties were railroad attorneys, re- 
 tainers or stockholders. United States Senator Sherman, in 
 fact, was one of the principal stockholders in the Pittsburg, 
 Fort Wayne and Chicago Railroad now a constituent part 
 of the Pennsylvania Railroad system. 40 
 
 39 Rhodes, Vol. VII : 27. 
 
 40 See, Case of State of Ohio vs. Sherman et al, XXII Ohio State 
 Reports, 411. When, in 1869, the Pittsburg, Fort Wayne and Chicago 
 Railroad Company leased its entire road to the Pennsylvania Railroad 
 for a term of 999 years, the State of Ohio brought an abortive suit for 
 an ouster for usurpation and unlawful exercise of franchise, etc. As 
 a young attorney, Sherman had started out as a railroad counsel ; in 
 1848, he was attorney for the Vermilion and Ashland Railroad. XVIII 
 Ohio Reports, 189.
 
 UNDER CHIEF JUSTICE CHASE 51 1 
 
 Growth of the Railroad Power. 
 
 For twenty years the bribery of members of Congress and 
 of the Texas Legislature by railroad promoters had gone 
 on incessantly. Of the 155,273,560.73 acres of public lands 
 granted directly by the United States Government, or by 
 it through States, to railroad corporations, the greater part 
 had already been obtained by corrupt legislation. From 1850 
 to 1870 not less than one hundred and thirty-three separate 
 grants of public lands had been made by Congress to nearly 
 as many different railroad corporations. 41 In addition, the 
 State of Texas (which retained control of its lands) granted 
 a total of 32,400,000 acres, the bulk of which had already been 
 appropriated by the year i87o. 42 There were also donations 
 of' State lands in the East over which the United States Gov- 
 ernment had no jurisdiction, as for example the Legislature 
 of Maine granting, in 1868, a donation of 700,000 acres of 
 land to the European and North American Railroad. 43 
 
 Altogether, counting the donations of Government, of the 
 State of Texas, of other individual States and of counties 
 and municipalities, the railroad corporations had received the 
 major part of a total of about 212,000,000 acres. Nor does 
 this estimate comprise the gifts of immensely valuable terminal 
 facilities, municipal rights of way, harbor rights and other 
 privileges of a value of hundreds of millions of dollars. 
 Finally, from either Government, States, counties or cities, or 
 from all, they had received loans or gifts of public funds ap- 
 proximating many hundreds of millions of dollars ; the total 
 vast amount has never yet been computed. 
 
 Possessed of these immense resources, the railroad interests 
 were formidably intrenched. 
 
 41 Report of The Public Land Commission, 1905 : pp. 144-155. 
 
 42 Biennial Report of the Commissioners of the General Land Office 
 of Texas, 1908-10: p. 29. 
 
 43 See, Seventh Report of the Forest Commissioner of Maine, 1908: 
 p. oo.
 
 512 HISTORY OF THE SUPREME COURT 
 
 Corruption by Railroad Corporations. 
 
 For purposes of illustration, a few examples of this long- 
 continuing corruption will be given. 
 
 In 1853 Alexander J. Marshall sued the Baltimore and 
 Ohio Railroad for the sum of $50,000 due him on a contract 
 for lobbying through the Virginia Legislature a bill granting 
 that company a comprehensive right of way to the Ohio 
 River. " Without impropriety," he wrote on November 17, 
 1846, to Louis McLane, a politician of national note, and 
 president of the railroad company, " I may say for myself 
 I have had considerable experience as a lobby member before 
 the Legislature of Virginia. For several years past I have 
 been before that body with difficult and important measures 
 affecting the improvement of this region of the country ; and 
 I think I understand the character and component material 
 of that honorable body. . . ." 44 The Supreme Court of 
 the United States decided against Marshall, holding among 
 other grounds, that the enforcement of such a corrupt con- 
 tract was against public policy. 45 
 
 In 1856 the LaCrosse and Milwaukee Railroad Company 
 had bribed, with $800,000 of bonds, nearly the whole of the 
 Wisconsin Legislature, the Governor and newspaper editors 
 for the advocacy and passage of an act giving that company 
 a land grant of about 1,000,000 acres valued at that time at 
 nearly $i8,ooo,ooo. 46 A special committee of Congress was 
 appointed in 1857 to investigate charges of corruption in con- 
 nection with an act giving an enormous land grant in Iowa, 
 Minnesota and other states to the Des Moines Navigation and 
 
 44 Marshall vs. Baltimore and Ohio Railroad Company, XVI Howard's 
 Reports, 315. 
 
 45 Ibid., 314, etc. Similar bribery cases of the times are set forth 
 in XVIII Pickering's Massachusetts Reports, 470; VII Watt's Reports, 
 152, etc., etc. 
 
 46 " Report of the Joint Select Committee Appointed to Investigate 
 Into Alleged Frauds and Corruption," etc. Appendices to (Wisconsin) 
 Senate and Assembly Journals, 1858.
 
 UNDER CHIEF JUSTICE CHASE 513 
 
 Railroad Company. The Committee recommended the ex- 
 pulsion of four members of Congress, reporting that one of 
 them, Orasmus B. Matteson, was a leader of a corrupt com- 
 bination and had received for disbursement a corruption fund 
 of $100,000 and " other valuable considerations." 47 
 
 These are merely a few of the many instances that could 
 be cited, and many more of which are related in the " History 
 of the Great American Fortunes." The corruption con- 
 tinued during, and after, the Civil War. In the year 1868 
 alone, for example, Jay Gould and his associate directors of 
 the Erie Railroad, had expended at least a million dollars in 
 corrupting the New York Legislature, and Cornelius Vander- 
 bilt had spent a large amount for the same purpose. 48 Hand 
 in hand with the Tweed regime then plundering New York, 
 Gould and Fisk were able to purchase both laws and judges; 
 Barnard and Cardozo and other judges of the New York 
 State Supreme Court were their supple tools ; after the Tweed 
 " ring " was overthrown Barnard was, indeed, impeached ; 
 and Cardozo resigned in time to save himself from impeach- 
 ment. 49 And of the many scandals developing in Congress 
 and in the State Legislatures, we will here mention only one, 
 and a very typical example the Credit Mobilier Company 
 swindle. In this affair many of the foremost capitalists of 
 the country were involved, and a galaxy of leading politicians 
 in Congress. The testimony revealed that in the constructing 
 of the Union Pacific Railroad at least $44,000,000 had been 
 stolen by the falsifying of construction accounts and by other 
 
 47 Reports of Committees, House of Representatives, Thirty-fourth 
 Congress, Third Session, 1856-57, Report No. 243, Vol. III. By a con- 
 struction of the law made by the land grabber Robert J. Walker, when 
 Secretary of the Treasury, the grant of this company was vastly en- 
 larged. In 1892 the Government tried to recover much of the lands, 
 but the Supreme Court of the U. S. decided adversely to the Govern- 
 ment. See later. 
 
 48 See, " History of the Great American Fortunes," particularly Vol. 
 II: 310-317. 
 
 49 See, " History of Tammany Hall," 296-297.
 
 514 HISTORY OF THE SUPREME COURT 
 
 methods. 50 James G. Elaine, Speaker of the House of Repre- 
 sentatives, was one of those implicated in the Credit Mobilier 
 transactions. 
 
 Packing of the Supreme Court. 
 
 How were the railroad interests to get control of the Su- 
 preme Court of the United States? Partly by means of Con- 
 gress and more definitely through President Grant. On 
 March 3, 1863, Congress had passed an act (12 Statutes At 
 Large, 794) that the Supreme Court should consist of ten 
 members ; 51 the purpose of that enactment was to provide a 
 circuit for California. Three years later on July 23, 1866, 
 another act was passed declaring that the number of judges 
 should be thereafter reduced to seven, this change to take 
 effect as soon as by death or retirement the number sitting 
 should be reduced to seven. The intention of this act was 
 to prevent President Johnson, to whose views on reconstruc- 
 tion the majority in Congress were antagonistic, from getting 
 control of the Supreme Court. Justice Catron had died in 
 May, 1863, but no actual appointment of any successor had 
 taken effect. This was the state of affairs when on April 10, 
 1869, Congress passed another act restoring the number of 
 justices to nine. Why was this statute passed? Did the rail- 
 road power foresee the alignment of the Supreme Court on 
 the Legal Tender Act, and was preparing accordingly to have 
 railroad attorneys appointed and reverse Chase's decision? 
 Whether or not that was the purpose, the result was exactly 
 as though the arrangement had been premeditated and well 
 planned. Two vacancies caused, in December, 1869, by the 
 death of Justice Wayne and the resignation of Justice Grier, 
 gave President Grant the opportunity of making appointments 
 in their places. 
 
 50 Reports of Committees, Credit Mobilier Reports, Forty-Second 
 Congress, Third Session, 1872-73, Doc. No. 78 : xiv-xx. 
 
 51 It was under this act that Justice Field was appointed.
 
 UNDER CHIEF JUSTICE CHASE 515 
 
 Grant Surrounded by Venal Confidants. 
 
 That Grant would appoint railroad attorneys was an ac- 
 cepted conclusion. It was well known that he was not above 
 receiving gifts, as it had been equally well known that Presi- 
 dent Lincoln's wife had not refused them ; on one occasion, 
 as Ben Perley Poore tells in his " Reminiscences," Mrs. Lin- 
 coln accepted a valuable shawl, valued at $1,000, from A. T. 
 Stewart, a New York capitalist, at the very time Stewart was 
 a contractor for supplying the army with blankets. This 
 giving of gifts was a favorite and safe form of winning favor. 
 But so far as money bribes were concerned Grant was beyond 
 reproach. He, however, was surrounded by as corrupt a corps 
 of intimates, confidants and factotums as, perhaps, had ever 
 been known in the White House. They had his ear and 
 trust; and when their integrity was impeached he resented 
 the fact, and sought to shield them in every possible way. 
 They seem to have manipulated Grant much as they willed. 
 
 Vicious scandals kept developing in the war and navy de- 
 partments and it was shown that Grant's own private secre- 
 tary and intimate friend, Orville E. Babcock, was a member 
 of the Whiskey Ring and was sharing in the proceeds of its 
 frauds. 52 Grant's brother-in-law, A. R. Corbin, had been 
 a lobbyist in Congress for the Illinois Central Railroad, and 
 was both an accomplice of Gould and a participant in the 
 profits of Gould's gold conspiracy operations of 1869, leading 
 to " Black Friday." 53 
 
 Grant's open association with Gould and Fisk was, in truth, 
 a national scandal; he went on a junketing steamboat party 
 with them ; he appeared with them at the theater ; and this 
 public countenance was of the most incalculable value to them, 
 
 52 The Whisky Ring defrauded the Government out of many millions 
 of dollars in revenue on the manufacture of whisky by falsifying the 
 returns with the collusion of Government officials. 
 
 r>3 Gold Panic Investigation, House Report No. 31, Forty-first Con- 
 gress, Second Session, 1870: 157.
 
 516 HISTORY OF THE SUPREME COURT 
 
 in that it spread the public impression that Grant was in 
 league with them, and gave them the support of his para- 
 mount authority. We cannot assume that he was so simple- 
 minded as to have been an unconscious dupe, and not know 
 (what every intelligent man knew) of their corrupt character 
 and the enormous frauds and thefts that they were consum- 
 mating. On the other hand, it is not probable that Grant 
 ever received any illicit money, or deliberately connived at 
 fraud. Some writers hold that his early life of poverty re- 
 acted on him to such an extent that he was glad to be in the 
 society of men of money. This is but a paltry explanation, 
 for Grant well knew how fortunes were being acquired ; he 
 had, as a general during the war, written indignant letters on 
 the shameless frauds committed by army contractors in west- 
 ern Tennessee, and had bitterly denounced them. 
 
 Whatever his motives, the fact remained that as President, 
 Grant well knew the methods by which his friends and adher- 
 ents were getting rich and winked at them. What was of 
 much greater importance, he was perfectly willing that capi- 
 talists of every description should have their way and con- 
 trol his actions, knowing as he did that without their support 
 he could not get adequate campaign funds, nor perhaps even 
 secure a renomination. To represent and advance their in- 
 terests was his aim. One of the keenest political observers 
 of the time Samuel Bowles, editor and proprietor of the 
 Springfield Republican thus expressed the situation: 
 " Money-bags are always and everywhere conservative.. When 
 you have proved to the busy wealth seeker that the President 
 has shown an indecent fondness for gifts, that he has appointed 
 rascally or incapable kinsmen to office, that he has cracked, 
 if not broken the laws, what have you accomplished by your 
 denunciation? They will reply to you, 'General Grant is a 
 safe man.' . . . The railroad rings, the banking rings, 
 the iron and coal rings, the money-grabbing combinatfons of 
 every name and sort, are clear in the conviction that one good
 
 UNDER CHIEF JUSTICE CHASE 517 
 
 turn deserves another, and have come down handsomely for 
 the general campaign fund." 54 
 
 Two Railroad Attorneys Appointed. 
 
 On December 20, 1869, President Grant appointed Edwin 
 M. Stanton, but Stanton died four days later. 53 Then, on the 
 same day that Chase's opinion in the Legal-Tender case was 
 announced, Grant sent the nominations of William Strong and 
 Joseph P. Bradley, as Associate Justices, to the Senate. Their 
 nominations were shortly afterward confirmed. 56 
 
 Both Strong and Bradley were conspicuous railroad attor- 
 neys and directors. Born in 1808, Strong had studied at 
 Yale, and had begun the practice of law at Reading, Pennsyl- 
 vania. He was, for many years before, and after, the Civil 
 War the regular counsel for the Philadelphia and Reading 
 Railroad, and for the Lebanon Valley Railroad, which was 
 merged into the Philadelphia and Reading Railroad. 57 He 
 was a member of the Reading Common Council, 58 a director 
 of the Farmers' Bank and a director of the Lebanon Valley 
 
 54 Merriam's " Life and Time of Samuel Bowles," Vol. II : 195-196. 
 
 55 As an attorney, Stanton had been a noted railroad lawyer. He 
 was also a stockholder in the Pittsburg and Steubenville Railroad. 
 See Pittsburg and Connellsville Railroad Co., vs. Clarke and Thaw 
 29 Pa. State Reports, 147. 
 
 56 The Washington dispatch of the New York Times, February II, 
 1870, read : " There is authority for saying that in the matter of the 
 recent decision in the legal tender cases, both Mr. Strong and Mr. 
 Bradley have on occasions long prior to their present appointment 
 given expression to views in consonance with those expressed in the 
 dissenting opinion of Mr. Justice Miller." 
 
 57 For Strong's early appearances as a railroad lawyer, see VI Penn- 
 sylvania State Reports, 74; XXI Ibid., 188; XXIV Ibid., 467, etc., etc. 
 
 58 The Reading Common Council was induced to adopt an ordinance 
 calling for a popular vote to decide upon a municipal subscription of 
 $2,000.000 to aid in the construction of the Lebanon Valley Railroad, 
 of which, as stated above, Strong was both a director and counsel. 
 The vote was in favor of the measure. When an injunction was sought 
 on the ground that the ordinance was unconstitutional. Strong appeared 
 as counsel for the Lebanon Valley Railroad. Judge Black, in the 
 Pennsylvania Supreme Court, in 1853, refused to grant the injunction. 
 --XXI Pa. State Reports, 188-203.
 
 518 HISTORY OF THE SUPREME COURT 
 
 Railroad. In Congress from 1847 to 1852, he later, in 1857, 
 was elected a member of the Pennsylvania Supreme Court 
 for fifteen years, but he resigned from this bench in 1868, 
 removed to Philadelphia, and resumed a railroad practice 
 more lucrative than ever. 
 
 Bradley was both a noted railroad lawyer and a capitalist. 
 Born in 1813, the son of a farmer and teacher, he was admit- 
 ted to the bar in 1839, and commenced the practice of law 
 at Newark, N. J., in partnership with John P. Jackson, super- 
 intendent of the New Jersey Railroad. Bradley, thereafter, 
 represented that railroad in all important cases; subsequently 
 he was also the leading counsel of the Camden and Amboy 
 Railroad, and for various companies associated under the 
 name of the United Railways of New Jersey, which later be- 
 came the New Jersey branches of the Pennsylvania Railroad 
 Company. In 1844 ne nac ^ married Mary, daughter of Chief 
 Justice Hornblower, of New Jersey. 
 
 Bradley's Long Railroad Service. 
 
 Bradley was very closely associated both as counsel and 
 fellow railroad director with Edwin A. Stevens, a conspicu- 
 ous steamboat and railroad owner in New Jersey. If the 
 numerous records state the case correctly, the fortune that 
 Stevens acquired, and part of which he later used to blossom 
 out as a philanthropist, was got by a sequence of fraud and 
 bribery. 
 
 In one case, coming up in the Chancery Court, in 1847, 
 Stevens, his brothers, and Robert F. and Richard Stockton 
 (the latter of whom was subsequently associated with Bradley 
 as counsel) were accused of collusion in the fraudulent 
 manipulation of the stock and of the freight and profits of the 
 New Brunswick Steamboat and Canal Company, the Union 
 Transportation Line, the Camden and Amboy Transportation
 
 UNDER CHIEF JUSTICE CHASE 519 
 
 Company and the Delaware and Raritan Canal Company. 
 The suit was brought by one, John D. Hagar, a stockholder 
 who, after being granted an injunction restraining certain ac- 
 tions, sued for an accounting for some $400,000 and other 
 sums which he alleged had been improperly appropriated and 
 expended ; he further alleged that by a series of fraudulent 
 manipulations the lesser stockholders had been cheated and 
 " frozen out." These charges the defendants denied. In de- 
 nying Hager's petition for a receiver, Chancellor Halstead 
 practically sustained the allegations of fraud. The Chancel- 
 lor said that if a large accumulation of property should ap- 
 pear to be the result of a fraud on the rights of others not par- 
 ties to the suit, the court would not become the instrument 
 to distribute the moneys accumulated by such fraud, on 
 the application of one who had been a stockholder of the com- 
 pany from the beginning, and who had been cognizant of the 
 fraudulent proceedings which resulted in that fraudulent ac- 
 cumulation. 59 
 
 Bradley was one of the attorneys for the Hoboken Land 
 and Improvement Company, particularly in the suit of the 
 " Proprietors of the Bridges Over the Rivers Passaic and 
 Hackensack." The " Proprietors," etc., were an ancient cor- 
 poration; they had been incorporated in the year 1790 to 
 build and conduct toll bridges, and they claimed a perpetual 
 monopoly by vested right. The real owners of the " Pro- 
 prietors " corporation was the New Jersey Railroad and 
 Transportation Company which held more than nine hundred 
 and fifty of the one thousand shares outstanding. As the 
 owner of the Hoboken Land and Improvement Company, Ed- 
 win A. Stevens had compelled the New Jersey Railroad and 
 Transportation Company to pay him an annual blackmail sub- 
 sidy of $18,000 in order to buy him off from building a branch 
 
 59 See, Case of John D. Hager vs. Edwin A. Stevens et al, VI New 
 Jersey Chancery Reports, 374~447-
 
 52O HISTORY OF THE SUPREME COURT 
 
 railroad on a franchise that he held running from Hoboken 
 to Newark. 60 
 
 Tiring of paying this blackmail money, the New Jersey 
 Railroad and Transportation Company began an aggressive 
 warfare. Amid open charges that bribery was being used 
 both for and against the bill, Stevens, on March 8, 1860, ob- 
 tained the enactment of a law by the New Jersey Legislature 
 authorizing him to connect his line with the Morris and Essex 
 Railroad in which he held a large proprietorship. 61 Then the 
 " Proprietors," on the ground of their holding an exclusive 
 franchise, applied for an injunction restraining the building 
 of Stevens' road. Chancellor Green refused to grant the in- 
 junction. 62 
 
 In the foregoing case, Bradley successfully argued against 
 the claims of monopoly of franchise. But two years later, 
 in another case, we find him arguing as strongly for a similar 
 monopoly. He and J. P. Stockton appeared in chancery to 
 ask for a preliminary injunction in favor of the Delaware and 
 Raritan Canal Company and the Camden and Amboy Rail- 
 road and Transportation Company restraining the Camden 
 and Atlantic Railroad Company, etc., from constructing a 
 continuous line between the cities of New York and Philadel- 
 phia, and prohibiting any competition with the complainant's 
 railroads. 
 
 00 Said the financial column of the New York Times, February 27, 
 1860, of Stevens : ". . . The germ of the quarrel between that 
 gentleman and the New Jersey Transportation people seems to have 
 been the stoppage by the latter of a subsidy of $18,000 a year to Mr. 
 Stevens (or the Hoboken Improvement Company) to quiet or in satis- 
 faction for the time being of his right to demand a branch line to the 
 Hoboken Ferry," etc., etc. 
 
 61 Assemblyman Slaight, of Hudson County, charged, on May I, 
 1860, that an offer of bribery had been made to him to vote for Stevens' 
 bill, and Assemblyman Peckham, of the same county, declared that he 
 had been offered $3,000 to oppose the bill. 
 
 62 See, Case of " Proprietors," etc., vs. The Hoboken Land and Im- 
 provement Company, XIII New Jersey Equity Reports, 81, and Ibid., 
 5 o 3-5.6i. In both cases Bradley was one of Stevens' attorneys, as well 
 as being associated with him as a director.
 
 UNDER CHIEF JUSTICE CHASE 521 
 
 Bradley Argues for Railroad Monopoly. 
 
 This injunction was asked for on the ground that legislative 
 acts had been passed in 1832 and 1854 prohibiting, for a cer- 
 tain period, the building of competing railroads except by 
 consent of the railroad now represented by Bradley. The 
 plea set up by Bradley did not claim that the railroads he 
 was proceeding against would by the construction they were 
 planning violate those acts. He could not validly make such 
 a claim, inasmuch as no through line was being constructed. 
 But he contended that a through route, which would compete 
 in business, would be virtually made up partly of railroad 
 line and partly of steamboats. On the ground that the acts 
 cited did not refer to steamboat lines, Chancellor Green re- 
 fused his application for an injunction. 63 
 
 Bradley appealed to the New Jersey Court of Errors and 
 Appeals on which bench sat such former notorious railroad 
 attorneys as Beasley and Zabriskie. Here Bradley obtained a 
 modification of Chancellor Green's decision ; the two defendant 
 corporations were enjoined from building such sections of 
 railroad as would form a link between New York and Phila- 
 delphia. 64 To Bradley's long continued legal efforts was due, 
 in great part, the power of the railroad monopoly in New 
 Jersey to extort exorbitant railroad rates. These great profits 
 went to enrich Bradley, for he was a stockholder and director 
 as well as counsel. 
 
 How large these profits were, and the basis of them, may be 
 judged from statements in the suit of J. S. Black, former 
 Chief Justice of the Supreme Court of Pennsylvania. As a 
 dissatisfied stockholder, Black filed an action, June 23, 1871, 
 for an injunction restraining the proposed lease, for 999 years, 
 of the Delaware and Raritan Canal Company, the Camden 
 and Amboy Railroad, and the New Jersey Railroad and 
 
 03 XV New Jersey Equity Reports, 19. (May, 1862.) 
 
 4 XVIII New Jersey Equity Reports, 546-575. (November, 1867.)
 
 522 HISTORY OF THE SUPREME COURT 
 
 Transportation Company (commonly called the United Rail- 
 way Companies of New Jersey) to the Pennsylvania Railroad 
 Company. 
 
 The answer of the United Railways admitted that the actual 
 value of their properties was $50,000,000. But Judge Black 
 estimated the value at $90,000,000. According to Black, the 
 average annual dividends of the Delaware and Raritan Canal 
 Company and of the Camden and Amboy Railroad, from 1833 
 to 1871, were about 12.20 per cent. This, Black set forth, 
 was partly because of the small capital and the large bonded 
 debt drawing only five per cent, interest, and partly because 
 the companies " had the monopoly of the transportation of 
 passengers and merchandise between New York and Phila- 
 delphia across the State of New Jersey." Black contended 
 that when the lease was made the United Railways stock was 
 indirectly watered to the extent of $5,250,000. Anticipating 
 legal trouble, equivocal laws had been lobbied through the 
 legislatures of both Pennsylvania and New Jersey, in 1870; 
 under these Chancellor Zabriskie denied Black's application 
 and held that the lease was valid. 65 
 
 Bradley 's corporation practice was extremely large and 
 varied. He represented the New Jersey Zinc Company, the 
 Morris County Bank, the Newark Lime and Cement Com- 
 pany, the Morris Canal and Banking Company, the May's 
 Landing Water Power Company and many other corpora- 
 tions. 66 From 1857 to 1863 he was actuary of the Mutual 
 Benefit Insurance Company of Newark ; he was president of 
 the New Jersey Mutual Life Insurance Company and he was 
 a director in various financial institutions. In the biography 
 of Bradley, edited by his son, we are told that " the Prudential 
 Insurance Company's magnificent structure [in Newark] is 
 
 65 XXII New Jersey Equity Reports, 130-430. 
 
 6 See, Vols. XIII, XIV, XV, XVII, XIX, etc., New Jersey Equity 
 Reports, pp. (respectively) 322, 419, 190, 65, 385, etc., etc.
 
 UNDER CHIEF JUSTICE CHASE 523 
 
 erected on land owned by Judge Bradley for many years, and 
 sold to it three years before his death." 67 
 
 Certain of Strong and Bradley. 
 
 " It was alleged and not denied," says Schuckers of the ap- 
 pointment of Strong and Bradley to the Supreme Court of the 
 United States, " that when Messrs. Strong and Bradley were 
 made members of the court they were both interested as share- 
 holders in the Camden and Amboy Railroad Company. It 
 was alleged that one or both of these gentlemen had formerly 
 been employed as law counsel by that company, and as such 
 counsel had given opinions affirming the legal tender to be 
 constitutional. It was known, too, that the Camden and Am- 
 boy Company had, in paying the interest upon their bonds 
 subsequent to the decision in Hepburn vs. Griswold, made a 
 reservation looking to a reversal of the judgment in that 
 case." 68 
 
 According to " Poor's Railroad Manual," Bradley, Edwin 
 A. Stevens and others were directors of the Camden and Am- 
 boy Railroad, and Bradley, Stevens, etc., were directors of 
 the Morris and Essex Railroad Company. 00 In the eulogistic 
 biography of Bradley to which we have already referred, we 
 are informed that when Bradley went to Washington as an 
 Associate Justice of the Supreme Court he bought a large 
 residence at No. 201 I Street, built by Stephen A. Douglas, 
 and that " many old friends surrounded him " in Washing- 
 ton. 70 John P. Stockton and Frederick T. Frelinghuysen 
 were there as United States Senators from New Jersey ; both 
 
 07 " Miscellaneous Writings of the Late Hon. Joseph P. Bradley, 
 etc., Edited and Compiled by his son, Charles Bradley," Newark, 1901 : 
 
 P- 5- 
 
 08 "Life of S. P. Chase" (1874) : P- 261. 
 
 09 See, " Poor's Railroad Manual " for 1868-1869 : pp. 383 and 386. 
 
 70 " Miscellaneous Writings of the Late Hon. Joseph P. Bradley," 
 etc., p. 3.
 
 524 HISTORY OF THE SUPREME COURT 
 
 were old friends and associates of Bradley ; Stockton was a 
 railroad attorney, and Frelinghuysen was long a director of 
 the Central Railroad of New Jersey. 71 The biography in 
 question goes on to tell that other of Bradley 's old friends now 
 in Washington were George F. Robeson, Secretary of the 
 Navy, and John Kean, later Vice-President of the Jersey Cen- 
 tral Railroad. 72 
 
 The Supreme Court Reverses Itself. 
 
 Now that the Supreme Court of the United States was 
 packed, 73 or to put it more felicitously, reconstituted so as to 
 reverse Chase's Legal-Tender decision, Attorney-General Hoar 
 moved for a rehearing of the case. This motion was granted ; 
 and, in December, 1870, the Supreme Court, by a vote of five 
 to four (Associate Justice Strong writing the majority opin- 
 ion) reversed the previous decision, and declared the Legal 
 Tender Act constitutional. 74 
 
 From this time on, one decision after another, not always, 
 but almost invariably, favorable to the railroad interests fol- 
 lowed. The State of Pennsylvania had passed an act im- 
 posing a tax on all freight within the state. The railroads 
 refused to pay this tax on the ground of its being unconstitu- 
 tional. In December, 1872, Justice Strong, delivering the 
 Supreme Court's majority opinion, declared the act unconsti- 
 tutional. 75 Another Pennsylvania law imposed a tax on gross 
 receipts of railroad, canal, and transportation cornpanies; in 
 
 71 " Poor's Railroad Manual" for 1880; p. 234. 
 Ibid. 
 
 73 This packing of the Supreme Court caused such a long-continuing 
 scandal, that, as late as 1881, Justice Strong felt called upon to write 
 an article for the North American Review (May, 1881, Vol. CXXXII: 
 P- 437) defending the increase of members as made necessary by the 
 great pressure of cases for consideration. 
 
 74 XII Wallace's Reports, 457-681. Chief Justice Chase and Justices 
 C'ifford, Field and Nelson dissented. 
 
 75 Case of " State Freight Tax," XV Wallace, 237. Justices Swayne 
 and Davis dissented,
 
 UNDER CHIEF JUSTICE CHASE 52$ 
 
 this case, Justice Strong, as the mouthpiece of the majority, 
 declared that the law was not invalid. 76 Thereupon the Penn- 
 sylvania Railroad corrupted the Legislature to repeal the act. 77 
 Another measure passed by the Pennsylvania Legislature 
 for the Anti-Monopoly movement was then politically strong, 
 and it was considered politic to give it deferential sops was 
 an act taxing non-resident bondholders. By a vote of five 
 to four (Justice Field writing the majority opinion) this act 
 was declared unconstitutional by the Supreme Court in Decem- 
 ber, 1 872. 
 
 Meanwhile, during this period, the Supreme Court, al- 
 though rejecting some California land claims, had confirmed 
 many others. Not a few were of so questionable, if not visi- 
 bly fraudulent, a nature, that members of the Supreme Court 
 themselves vigorously denounced the majority opinions con- 
 firming them, as in the case of Hornsby vs. the United States. 
 Upon the pretense that acting Governor Pio Pico, on May, 
 1846, had granted 40,000 acres of land to Jose Roland, from 
 whom he (Hornsby) claimed to have bought it, Hornsby, in 
 1869, obtained a confirmation of his title from the Supreme 
 Court of the United States. In a severe dissenting opinion, 
 Justices Davis, Clifford and Swayne pointed out that the very 
 records of the case showed that the grant, if made, was il- 
 legally conferred. " No possession of any kind," they went 
 
 70 " State Tax on Railway Gross Receipts," XV Wallace, 284. Jus- 
 tices Miller, Field and Hunt dissented. Associate Justice Ward Hunt 
 had been appointed that year (1872) to succeed Justice Nelson. Jus- 
 tice Hunt had practiced at Utica, New York, had been Mayor of that 
 city, and in 1865 he had been elected to the New York Court of Ap- 
 peals. He was identified with the railroad interests. (See, "Poor's 
 Railroad Manual," for 1869-70.) At the time of his appointment to 
 the Supreme Court he was sixty-two years old. 
 
 77 So it was charged by Judge Black in his argument on railroad 
 monopoly before the Pa. Senate Judiciary Committee, and before the 
 Pa. Constitutional Convention of 1873. Judge Black dealt at length 
 with the corruption carried on by the Pennsylvania and the Reading 
 railroad companies. See, " Essays and Speeches of J. S. Black " (pp. 
 99, 176, etc.) published at the time. 
 
 78 XV Wallace, 300. Justices Davis, Clifford, Miller and Hunt dis- 
 sented.
 
 526 HISTORY OF THE SUPREME COURT 
 
 on, " is proved in this case, and the authenticity of this grant, 
 covering an area of over forty thousand acres of land, de- 
 pends upon the testimony of a single witness, unsupported 
 by any proof, except the imperfect or mutilated expedients, 
 found among a mass of loose papers on the floor of one of the 
 rooms of the custom house at Monterey after the Mexican offi- 
 cials had fled on the approach of our forces." 78 
 
 Death of Chief Justice Chase. 
 
 Chief Justice Chase died on May 7, 1873. In his laudatory 
 biography, Schuckers asserts that Chase's fortune was not 
 more than $100,000. But Chase's will dated November 19, 
 1870, and filed with the Register of Wills at Washington, on 
 May 21, 1873, showed a total of real and personal property 
 appraised at $250,000, of which $150,000 was estimated to be 
 in real property. If we are to accept the statement of Schuck- 
 ers, his confidant and biographer, that his fortune, in 1861, 
 amounted to $65,000, then Chase must have gathered the dif- 
 ference $185,000 during the twelve years he was Secre- 
 tary of the Treasury, and Chief Justice of the Supreme Court 
 of the United States. No doubt, part of this added wealth 
 could be attributed to the accumulating increment on his real 
 estate. 80 
 
 79 X Wallace's Reports, 224-245. 
 
 80 This interpolation of a description of the Supreme Court at the 
 time will be of interest : 
 
 " At eleven o'clock in the morning, the door back of the judges' 
 platform is thrown open, the Marshall of the Court enters, walking 
 backward, with his gaze fastened upon the door. Upon reaching the 
 center of the chamber, he pauses, and cries in a loud voice : 
 
 " ' The Honorable, the Judges of the Supreme Court of the United 
 States.' 
 
 " All present in the chamber immediately rise to their feet, and 
 remain standing respectfully. Then, through the open door, headed by 
 the Chief Justice, enter the members of the Court, one by one, in 
 their large, flowing robes of black silk. There is something very at- 
 tractive about these men, nearly all of whom have passed into the 
 closing years of life. They ascend the platform, range themselves in
 
 UNDER CHIEF JUSTICE CHASE 527 
 
 When Chief Justices or Associate Justices of the Supreme 
 Court of the United States died, the newspapers and peri- 
 odicals and the publications of the legal profession almost 
 invariably contained effusive laudations. It was remarkable, 
 therefore, that only a few months after Chase's death, the 
 periodical Bench and Bar, representing the opinion of the legal 
 profession, should make severe comments upon Chief Justice 
 Chase's political activities. After stating that there was no 
 intention of disparaging Chase's memory or derogating from 
 his deeds, the article in question, published in the October, 
 1873, issue of Bench and Bar, spoke of him as exhibiting " the 
 spectacle of a standing candidate "for the Presidency. The 
 magnitude and dignity of the office of Chief Justice sank 
 before a restless ambition for political power and place. It 
 was not possible that this should not meet the disapproving 
 opinion of the public, and especially of the Bar of the United 
 States. . . ." 
 
 front of their seats, and the Chief Justice makes a sign to the ' Crier, 1 
 who immediately makes the following proclamation : 
 
 " ' O yea ! O yea ! O yea ! All persons having business before the 
 Honorable, the Judges of the Supreme Court of the United States, are 
 admonished to draw near, and give their attendance, for the Court is 
 now in session. God save the United States, and this Honorable 
 Court ! ' " 
 
 " The Judges and other persons take their seats, and the business of 
 the day begins." Dr. John B. Ellis' "The Sights and Secrets of the 
 National Capital," 1869, p. 258.
 
 CHAPTER XIII 
 THE SUPREME COURT UNDER CHIEF JUSTICE WAITE 
 
 Recapitulating, we have seen that some years before Chief 
 Justice Chase's death, the railroad power had begun a sys- 
 tematic campaign to put its avowed representatives upon the 
 Supreme Court Bench. In the State courts the transformation 
 had already been accomplished; there was hardly an inferior 
 court which was not composed of railroad judges, or of men 
 susceptible to railroad influences. With the Supreme Court 
 of the United States, the process was a little slower, but none 
 the less sure. The delay was unavoidable because the Jus- 
 tices, appointed for life, often outlived the period and the 
 class section originally represented by them. Survivals, or 
 rather relics, of a bygone, outworn era, aged and usually in- 
 firm, they all could not be expected to respond readily to the 
 demands of later economic interests. Some of them could 
 hardly realize that the railroad corporations which they had 
 seen come forward a few years before as supplicants for pub- 
 lic aid were now the paramount capitalist power, arrogating 
 the larger control of Government. 
 
 As fast as these hoary relics passed away, railroad attor- 
 neys were appointed to succeed them. And when, in 1874, 
 Morrison I. Waite was chosen as Chase's successor as Chief 
 Justice of the Supreme Court of the United States, it was evi- 
 dent even to the most superficial observer that the new regime 
 had become a dominant factor, and that the railroad corpora- 
 tions were the sovereign power. 
 
 528
 
 UNDER CHIEF JUSTICE WAITE 529 
 
 Williams and Gushing Compelled to Retire. 
 
 Like Chief Justices Jay, Marshall, Taney and Chase, Waite 
 did not have any judicial experience when appointed to pre- 
 side over the Supreme Court. Unlike his predecessors, he 
 had not even filled a single political office of national note. 
 So far as public reputation was concerned, he was a total 
 nonentity; the public had never heard of him. But to the 
 railroad politicians surrounding President Grant, and filling the 
 Senate, he was well known for his ingrained conservative ten- 
 dencies and affiliations. 
 
 At first, Grant had selected George H. Williams for the 
 post. Williams had been a judge in Iowa; a presidential 
 elector in 1852; Chief Justice of Oregon Territory; a United 
 States Senator from Oregon in 1862-1871 ; and Attorney Gen- 
 eral of the United States from 1872 to 1875. The Bar Asso- 
 ciation of New York protested against the nomination ; Wil- 
 liams, it said, was " wanting in those qualifications of intellect, 
 experience and reputation which are indispensable to uphold 
 the dignity of the highest national court." x Williams' nom- 
 ination was withdrawn at his own request. 
 
 But when Grant then nominated Caleb Cushing for the 
 Chief Justiceship, public denunciation was even more severe. 
 That Cushing was seared with corruption was beyond doubt. 
 One of his transactions we have discussed in a previous chap- 
 ter ; how he had been counsel for the Peter's colony contract 
 grant, and how later, when Attorney General of the United 
 States, he had given an opinion in favor of that grant at the 
 very time Texas was seeking to put a stop to the fraudulent 
 operations of its promoters. We have also described (Chap- 
 ter X) how General Sam Houston, in 1857, categorically ex- 
 posed Cushing's connection with the Peter's colony grant. 
 
 Of the numerous strictures made at the time upon Cush- 
 ing's nomination as Chief Justice, we shall confine ourselves to 
 
 * Rhodes' " History of the United States, 1850-1877," Vol. VII : 27.
 
 530 HISTORY OF THE SUPREME COURT 
 
 quoting but one, that of the Springfield Republican, perhaps 
 the most influential, and certainly the most accredited, news- 
 paper in his native state. " His reputation," it said, " is that 
 of a man who has. never allowed principle or conscience to 
 stand in the way of gain. . . . He is not an immoral, but 
 rather an unmoral, man; he has not become demoralized; he 
 never was moralized." 2 
 
 The onslaught upon Cushing's probity was so effective, and 
 so strongly backed with facts, that his nomination was with- 
 drawn. Notwithstanding, Gushing held Grant's ear; and in 
 retiring Gushing was, it was understood, one of those propos- 
 ing to Grant the appointment of Waite as Chief Justice. He 
 was, indeed, Waite's sponsor. 3 Gushing had an extensive rail- 
 road practice; he was, after the Civil War, an attorney for 
 Russell Sage's La Crosse and Milwaukee Railroad Company, 
 which, as we have narrated, had bribed an act through the 
 Wisconsin Legislature, in 1856, with $800,000 in bribes, giving 
 it a land grant then valued at $18,000,000. He was also attor- 
 ney for Sage's Milwaukee and Minnesota Railroad Company 
 and for other railroads of similar fraudulent origin now in- 
 corporated in the Chicago, Milwaukee and St. Paul Rail- 
 road. 4 
 
 2 Merriam's "Life and Times of Samuel Bowles," Vol. II: 231. 
 
 3 Gushing was then appointed Minister to Spain, serving from 1874 
 to 1877. He, Williams and Waite had been counsel for the United 
 States before the Geneva tribunal of arbitration, in 1871-72. 
 
 4 VI Wallace's Reports, 742, 750, 751, etc. Russell Sage was presi- 
 dent of the Milwaukee and Minnesota Railroad. For the specific 
 account of the enormous frauds committed by the men controlling those 
 railroads in issuing fraudulent bflnds to themselves and in profiting 
 from fraudulent foreclosure sales, see, " History of the Great American 
 Fortunes," Vol. Ill, Chapter I, citing from legislative and court records. 
 Sage was allied with Jay Gould in many railroad and telegraph com- 
 pany operations. At the time that Russell Sage was president of the 
 Pacific Mail Steamship Company, in 1872-1873, that company had bribed 
 (as we have already narrated, through Congress, by means of $1,000,000 
 in bribes, an act giving it an additional mail subsidy of $500,000 a year 
 for ten years.
 
 UNDER CHIEF JUSTICE WAITE 53! 
 
 Waite's Record as a Lawyer. 
 
 The son of a Chief Justice of Connecticut, Waite was born 
 at Lyme, in that State, on November 29, 1816. After gradu- 
 ating from Yale, in 1837, he had settled in Toledo, Ohio. 
 There he had become associated in law partnership with Sam- 
 uel R. Young, and later with his brother, Richard Waite. 
 Their cases, for twenty-five years, were an unbroken succes- 
 sion of lucrative appearances for corporations of one kind 
 or another. In the decades before and after the Civil War, 
 Morrison R. Waite represented the Bank of Toledo, the State 
 Bank of Ohio, the Toledo Insurance Company and similar in- 
 stitutions. 5 He and his partner, Young, were receivers for 
 the Commercial Bank of Toledo. 6 But the greater part of 
 Waite's practice was as attorney for railroad corporations. 
 He was counsel for the Southern Michigan Railroad Com- 
 pany; for the Northern Indiana Railroad Company; for the 
 Cleveland and Toledo Railroad Company ; for the Lake Shore 
 and Michigan Southern Railroad Company, and for other 
 railroad corporations. 7 
 
 During twenty-five years of practice, there was scarcely a 
 case in which Waite appeared in which he did not advocate 
 the interests of some powerful individual or corporation. 
 Charles Butler, one of Toledo's richest landholders, applied 
 through Waite, in January, 1853, for a permanent injunction 
 restraining the City of Toledo from collecting an assessment 
 for the cost of grading streets. Waite argued that the leg- 
 islative act authorizing this assessment was retroactive and 
 an impairment of vested rights, and that the fund for the 
 grading work was being misapplied and wasted. Judge 
 
 6 See, I Ohio State Reports, 628; VIII Ibid., 468; XII Ibid., 605, etc. 
 See, Case of Platt vs. Eggleston, XX Ohio State Reports, 417. 
 * See, X Ohio State Reports, 272; Ibid., 163; XXII Ibid., 575; XXV 
 Michigan Reports, 329, etc., etc.
 
 532 HISTORY OF THE SUPREME COURT 
 
 Brinckerhoff, in the Ohio Supreme Court, denied that any 
 vested right was being impaired, and dissolved the injunc- 
 tion. 8 
 
 In cases affecting the interests of banks or railroads, Waite 
 was more fortunate. Of the successive judges of the Ohio 
 Supreme Court, there was hardly one who had not been, or 
 who did not become, a corporation attorney. Allan G. Thur- 
 man, for some years Chief Justice of that court, and subse- 
 quently a United States Senator and a candidate for Vice- 
 President of the United States, was counsel for the Valley 
 Bank, for the Ohio Life Insurance and Trust Company (which 
 failed under disastrous circumstances, in 1857) ; and he was 
 counsel for a number of other corporations. Judge Swan had 
 been counsel for the State Bank of Ohio. Milton Sutliff, 
 Chief Justice of the Ohio Supreme Court, in 1861, was so in- 
 different to public criticism that he did not forbear bringing 
 a very remarkable suit in which he demanded his full share 
 of watered railroad stock. He set forth that he was the owner 
 of Cleveland and Mahoning Railroad seven-per cent.-bonds, 
 not specifying, however, how he obtained them. These bonds 
 he had elected to convert into stock. Subsequently, he 
 averred, the company had watered the stock to the extent of 
 forty-seven per cent., and had given him this depreciated stock 
 in exchange for his bonds. He sued to get an amount of stock 
 equaling the value of his bonds, plus forty-seven per cent, in- 
 terest; but when the case was decided, in 1873, he was de- 
 feated. 9 As for Judge Birchard, he had been counsel for a 
 variety of corporations, and after leaving the bench resumed 
 corporation practice. 
 
 8 Case of Charles Butler vs. City of Toledo, V Ohio State Reports, 
 225. 
 
 9 Sutliff vs. Cleveland and Mahoning Railroad Company, XXIV 
 Ohio State Reports, 147-150. Sutliff was long a close personal friend 
 of Chief Justice Chase; they corresponded regularly and intimately, 
 Schuckers says.
 
 UNDER CHIEF JUSTICE WAITE 533 
 
 The Case of Veronica Muhl. 
 
 Most of Waite's cases dealt with some phase or other of 
 vested rights, in the pleading of which he was recognized as 
 an expert, and in every hoary precedent concerning which he 
 was deeply read. These cases, blanketed as they were in ab- 
 stract technicalities, the reading public could not follow very 
 closely even when they were stated simply in the brief news- 
 paper reports. But there was one case argued before the Ohio 
 Supreme Court, in 1859, which was clear enough ; it was so 
 very plain that the workers of the railroad quarter of Toledo 
 had no difficulty in keeping track of its aspects, and no hesita- 
 tion at expressing their indignation over the particular defense 
 advanced by Waite. 
 
 Veronica Muhl, a Swiss woman, had been killed in Toledo, 
 on July 19, 1854, by being run over on the street by a loco- 
 motive and a train of cars, going at a speed of more than 
 twenty-five miles an hour. The speed was proved and it was 
 also proved that no warning bell had been rung. A city ordi- 
 nance prohibited, in that part of Toledo, a speed of more than 
 twenty-five miles an hour, and forbade any running of trains 
 at all without the constant ringing of the locomotive bell so as 
 to give ample warning of danger. 
 
 Veronica Muhl left a two-year old boy ; and suit was brought 
 in his behalf for $5,000 damages. The Southern Michigan 
 Railroad Company entered a general denial. In July, 1855, the 
 jury in the Court of Common Pleas returned a verdict in favor 
 of the orphan. The railroad then applied to the district court, 
 amending its answer, and not denying, in effect, its own culpa- 
 bility. What, then, was the plea put forward by Waite, as 
 attorney for the railroad ? A very extraordinary one ; he con- 
 centrated his whole argument upon the point that the plain- 
 tiff's counsel must prove that Veronica's son was legitimate, 
 and he moved that the action must be non-suited on the ground
 
 534 HISTORY OF THE SUPREME COURT 
 
 that the boy was an illegitimate child, and, therefore, not next 
 of kin within the meaning of the statute governing the case. 
 The judge in the district court non-suited the case. 
 
 The orphan's lawyer appealed the case to the Supreme Court 
 of Ohio. In the meantime, the news of the railroad's peculiar 
 defense in the case had got abroad. That it was generally re- 
 ceived with execration is putting the fact mildly. The mother 
 had been killed by the railroad company running its trains in 
 violation of the law ; her boy had been left a helpless orphan. 
 To cheat him out of the very modest damages awarded him 
 by the lower court, the railroad's attorneys, Morrison I. Waite 
 and his brother Richard, had no scruples in heaping contumely 
 upon the name of the dead woman, and covering her defense- 
 less boy 'with public disgrace. 
 
 Public opinion made itself manifest; and when the Waite 
 brothers, representing the Southern Michigan Railroad, re- 
 newed their plea before the Ohio Supreme Court, in Decem- 
 ber, 1859, the judges of that court, railroad attorneys as they 
 had been, could not avoid expressing disgust. Judges Sutliff, 
 Brinckerhoff, Scott, Peck and Ghoulson concurred with an 
 unusual unanimity. They reversed the action of the district 
 court, and directed that the child should get the awarded dam- 
 ages. 
 
 " It is difficult," said Judge Sutliff, in delivering the court's 
 opinion, " to perceive upon what ground the judgment of non- 
 suit, shown by the record, was rendered. When the de- 
 fendant's counsel, under leave to amend, had withdrawn all 
 that part of the answer that denied the killing of decedent by 
 the wrongful carelessness of defendant's servants, in operating 
 their locomotives, there remained no denial of the right of ac- 
 tion." The question, Judge Sutliff further declared, of 
 whether Veronica's son was the nearest of kin, could in nowise 
 affect the cause of action. As to who was the legal beneficiary 
 could be adjudged after the action had been determined. 
 Nearness or remoteness of kin on the part of the boy, Judge
 
 UNDER CHIEF JUSTICE WAITE 535 
 
 Sutliff went on, did not depend at all upon the circumstance of 
 his being born within or without lawful wedlock. 10 
 
 Quite incidentally, the judges had no high opinion of Waite's 
 character in that he should have advanced what was regarded 
 as so reprehensible a defense, nor did they appraise his knowl- 
 edge of law as worthy of much consideration. 
 
 Waite's Advocacy of Vested Private Rights. 
 
 Not a few of Waite's legal efforts as an attorney were at- 
 tempts to break down the constitutionality of this or that 
 statute a typical enough preparation for a future Chief 
 Justice of the Supreme Court of the United States. 
 
 In 1851 the Ohio Legislature had passed an act to tax banks 
 and bank stock ; accordingly the City of Toledo assessed a tax 
 of $1,957.50 on the Toledo Bank. That bank refused to pay, 
 and when sued, Waite and Young, representing the bank, 
 pleaded that the legislative act was unconstitutional. Among 
 the precedents cited by them was Marshall's decision in the 
 Dartmouth College case; they argued that the charter of a 
 private corporation was a contract within the meaning of the 
 restrictive clause of the Constitution of the United States. 
 
 Chief Justice Hartley, in the Ohio Supreme Court, in June, 
 1853, decided against the bank, declaring that the Dartmouth 
 College decision had been perverted " until it has become, to 
 some extent, a subterfuge for fraud and a means of shielding 
 corporations from responsibility and correction for the abuse 
 of their corporate franchises." The antique precedents ad- 
 vanced by Waite to enable his client to defraud the city of 
 taxes, did not at all impress Chief Justice Bartley. " A legal 
 principle," he said, " to be well settled, must be founded upon 
 sound reason, and tend to the purposes of justice." In the 
 course of his decision he further stated that " it is a humiliating 
 
 10 See, Case of Muhl, Administrator, vs. Southern Michigan Railroad 
 Company, X Ohio State Reports, 272-277.
 
 536 HISTORY OF THE SUPREME COURT 
 
 reflection to the friends of our republican institutions, that the 
 efforts to place the rights and property of corporations upon 
 a footing of greater sanctity than those of private persons, 
 have been resisted with far greater success in England than 
 they have been in this country. The right of Parliament to 
 amend or repeal the charters of private corporations has for 
 many years been undisputed." The property of every person, 
 Bartley declared, " must be liable to bear an equal and just 
 proportion of the public burdens. . . ." n 
 
 Another example of Waite's activities was this : As a mat- 
 ter of public health, the City of Toledo had passed an ordi- 
 nance requiring owners to fill up noisome vacant places ; if they 
 failed the city was to do it, and assess the expense upon the 
 owners. One of the landowners refusing to pay this assess- 
 ment was one Ezra Bliss. As Bliss' attorneys, the Waite 
 brothers claimed that the Ohio health statute under which the 
 city acted, was unconstitutional, in that it violated vested pri- 
 vate rights. The Ohio Supreme Court, in December, 1864, 
 decided that it was constitutional. 12 
 
 Morrison I. Waite and Richard Waite were also, together 
 with Charles Pratt, the attorneys in another action to have an 
 Ohio legislative act construed in favor of vested private rights. 
 They represented Rollin B. Hubbard, the owner of large flour 
 mills. These mills had been run with water from a branch 
 of the Wabash and Erie Canal which had traversed Toledo. 
 The Ohio Legislature, in 1864, had passed an act discontinuing 
 that particular canal, and authorizing its being reconstructed 
 into a public highway. Hubbard then came forward with a 
 claim that in 1840 he had received the right under a thirty 
 
 11 Case of Toledo Bank vs. John R. Bond (Treasurer of the City of 
 Toledo), I Ohio State Reports, 622-703. But we have described in 
 Chapter XI how the Supreme Court of the United States, in 1855, de- 
 clared the Ohio act of 1851 unconstitutional, and how, in a dissenting 
 opinion, Justice Campbell denounced the decision, and described how 
 the corporate money interest was dominant in Ohio. Chief Justice 
 Bartley seems to have been exempt from that domination. 
 
 12 Bliss ct a/, vs. Kraus, XVI Ohio State Reports, 58.
 
 UNDER CHIEF JUSTICE WAITE 537 
 
 years' lease, renewable, to propel his mills with surplus 
 water not required for navigation. When, in 1868, the Gov- 
 ernor of Ohio executed a formal grant of the canal to the City 
 of Toledo, Hubbard and others obtained a provisional injunc- 
 tion restraining the city from interfering with the flow of 
 water. The injunction was later dissolved, and the case in 
 full argued. 
 
 For Hubbard, Morrison I. Waite claimed that he held a 
 vested right; that the legislative act was subject to his prior 
 rights; and that the city was liable for all damages accruing 
 from the discontinuance of the water supply. " The State 
 government," retorted the city's attorneys, " was not organ- 
 ized for the purpose of running grist mills." The Ohio Su- 
 preme Court, in December, 1871, decided in favor of the City 
 of Toledo. 13 
 
 Waite's Railroad Interests and Connections. 
 
 To ascertain the real importance of Waite's position as a 
 railroad attorney, it is necessary to know what large interests 
 owned or controlled these railroads. Samuel M. Young, law 
 partner of Morrison I. Waite, was a director of the Cleveland 
 and Toledo Railroad. 14 This railroad belonged to the Van- 
 derbilt system ; William H. Vanderbilt was one of its direc- 
 tors; in turn it was leased to the Cleveland, Painesville and 
 Ashtabula Railroad, one of the directors of which was Henry 
 B. Payne, later so powerful a magnate as treasurer of the 
 Standard Oil Company, and such a sinister figure in the bribery 
 of Ohio legislators and officials. 15 
 
 13 Hubbard vs. City of Toledo, XXI Ohio State Reports, 379-401. 
 
 14 "Poor's Railroad Manual," 1868-1869: 163, and Ibid., 1869-70: 
 pp. 184 and 362. 
 
 15 After Payne was elected to the United .States Senate, in 1884, a 
 subsequent Ohio Legislature petitioned the United States Senate for 
 an investigation. Upon completing an examination of sixty-four wit- 
 nesses, the Ohio House of Representatives declared that Payne's seat 
 in the United States Senate " was purchased by the corrupt use of
 
 538 HISTORY OF THE SUPREME COURT 
 
 As for Morrison I. Waite, he was one of the directors of the 
 Dayton and Michigan Railroad, and for a time was its vice- 
 president. 16 This railroad had been leased, in 1863, to the 
 Cincinnati, Hamilton and Dayton Railroad. The president of 
 the Dayton and Michigan Railroad, S. S. L'Hommedieu, was 
 also president of the Cincinnati, Richmond and Chicago Rail- 
 road, and was also " interested " in the Kentucky Central 
 Railroad. One of Waite's sons was superintendent of the 
 Cincinnati and Muskingum Railroad during a great part of 
 the time that Waite was Chief Justice of the Supreme Court 
 of the United States. 
 
 Only twice had Waite ever held any public office : in 
 1849, when he had been elected to the Ohio Legislature, and 
 in 1873, when he was president of the Ohio Constitutional Con- 
 vention. He had been defeated for delegate to the State Con- 
 stitutional Convention in 1850, and had not succeeded in his 
 candidacy for Congress in 1862. 
 
 Wonderment was publicly expressed that such an obscure 
 person should have been made Chief Justice. Yet in official 
 circles it was well known that the interest that had chiefly 
 pushed him was the powerful Vanderbilt family, at that time, 
 as it still is, one of the largest railroad owners in the United 
 States. 
 
 But although railroad magnates such as Vanderbilt and 
 Gould were warring fiercely upon one another, and in turn 
 were ousting the lesser railroad capitalists, all the railroad in- 
 terests had certain ends in common so far as the construction 
 of law was concerned. On the interpretation of law in gen- 
 eral for their benefit, all the magnates, large and small, were 
 united, irrespective of what their own differences were. 
 
 money," and the Ohio Senate likewise resolved. The specific testimony 
 showed that the Legislature had been debauched with corrupt funds. 
 See, Report No. 1400, TJT. S. Senate, Forty-ninth Congress, 1886, and 
 see a complete account from the records in Lloyd's " Wealth vs. Com- 
 monwealth," pp. 373-382. 
 
 18 " Poor's Railroad Manual" for 1869-1870: p. 26.
 
 UNDER CHIEF JUSTICE WAITE 539 
 
 While, therefore, a judge's antecedents were those of retainer- 
 ship for this or that particular railroad magnate, still his 
 previous training and attachments would incline him to favor 
 all railroad interests as against public agitation. 
 
 Some of the great railroad questions certain to come up 
 before the Supreme Court were those dealing with the inter- 
 pretations of laws by which the various Pacific railroads had 
 obtained immense land grants and Government money sub- 
 sidies. 
 
 In 1868-69 J av Gould and Russell Sage had begun to get 
 control of the Union Pacific and allied railroads ; and had, as 
 later investigations and actions showed, like Stanford and 
 Huntington, set out to manipulate those roads in order to 
 cheat the Government. Caleb Cushing, one of Waite's prin- 
 cipal backers, was very close to Sage. The Vanderbilts, too, 
 had their ambitious schemes and interests ; they were con- 
 stantly extending their railroad power; and issues affecting 
 their interests would necessarily come for final decision before 
 the Supreme Court of the United States. In addition there 
 were questions of railroad stock and bond issues; of land 
 grants either given to railroads or in which they were inter- 
 ested; of railroad pools and many other considerations deter- 
 mining whether the wealth and power of railroad owners 
 should be aggrandized or hindered by court decision. Not 
 the least, it was certain that pressing questions arising from 
 conflicts with labor organizations would be argued up to the 
 Supreme Court. 
 
 Grant's Intimacy with the Vanderbilts. 
 
 With the Vanderbilt family President Grant was on the 
 most excellent terms. Indeed, ten years later, after the firm 
 of which Grant was a member that of Grant and' Ward 
 had gone into bankruptcy, it was to William H. Vanderbilt 
 that Grant appealed for a loan of $150,000, and it was from
 
 540 HISTORY OF THE SUPREME COURT 
 
 that powerful magnate then the richest in the United States 
 that Grant obtained it. 
 
 On May 4, 1884, General Grant called at Vanderbilt's resi- 
 dence, at No. 640 Fifth Avenue, New York City, and asked 
 for the loan of $150,000. " I gave him my check without 
 question," wrote Vanderbilt on January 10, 1885, to Mrs. 
 Grant, " not because the transaction was business-like, but 
 simply because the request came from General Grant." Gen- 
 eral and Mrs. Grant sent to Vanderbilt deeds on their joint 
 properties to cover the obligation, but Vanderbilt returned the 
 deeds. 
 
 Subsequently, when Vanderbilt was in Europe, General 
 Grant delivered to Vanderbilt's attorney mortgages upon every- 
 thing that he owned, including military trophies and presents 
 from foreign governments. On January 10, 1885, Vanderbilt 
 presented as a gift to Mrs. Grant's personal estate the. debt 
 and judgment that General Grant owed, and the mortgages 
 on household goods and articles pledged. The only condition 
 was that at Grant's death, the articles of historical value should 
 be presented to the Government. "... I have only to 
 add," wrote Grant in reply to Vanderbilt, on the same day, 
 " that I regard your giving me your check for the amount 
 without inquiry as an act of marked and unusual friend- 
 ship. . . ." After considerable vacillation, General and 
 Mrs. Grant finally decided to have certain of their mortgaged 
 property sold toward the payment of -the debt. 17 
 
 At the time that Waite was appointed Chief Justice the Van- 
 derbilts controlled the New York and Harlem Railroad, the 
 New York and Hudson River Railroad, the Lake Shore Rail- 
 road; and they presently acquired the Canada Southern and 
 Michigan Central Railroad, and a large interest in the North- 
 western Railway. 
 
 1T The full correspondence between General and Mrs. Grant and 
 William H. Vanderbilt is published in Appendix F in Croffut's "The 
 Vanderbilts," 294-297.
 
 UNDER CHIEF JUSTICE WAITE 541 
 
 A Succession of Railroad Decisions. 
 
 The new Chief Justice was of medium height, stout and 
 straight in build, and he was strong, firm and quick in move- 
 ment, with a self-confident manner. His eyes were dark and 
 keen, his hair iron-gray, his upper lip was kept clean of growth, 
 and carefully-trimmed whiskers covered the remainder of his 
 face. His mouth and nose were large, his chin heavy. 
 
 One of the first cases argued after Waite had taken his seat 
 was one of the greatest importance to the railroads on the one 
 hand, and, on the other, to the public. 
 
 Throughout the country railroad promoters had influenced 
 the authorities of municipalities to issue vast amounts of bonds 
 to assist in the private construction of railroads. Indignant 
 at this abuse of public funds, the people of various States, in 
 particular those of Michigan, had insisted upon putting pro- 
 visions in their State Constitutions forbidding such grants. 
 The township of Pine Grove, Michigan, had issued bonds to 
 aid in the building of the Kalamazoo and South Haven Rail- 
 road, and subsequently refused to pay, on the ground that 
 they were unconstitutional. Talcott, one of the bondholders, 
 brought suit to recover. 
 
 Chief Justice Waite was disqualified from participating in 
 the case because his interest was concerned. 
 
 Delivering the Supreme Court's opinion, Justice Swayne de- 
 cided that the bonds were valid ; his chief ground was the 
 assumed doctrine of acquiescence. ". . . When the bonds 
 were issued, he said, " there had been no authoritative 
 information from any quarter that such statutes were invalid. 
 . . . And during the period covered by their enactment, 
 neither of the other departments of the State lifted up its 
 voice against them. The acquiescence was universal." 18 The 
 
 18 Case of Township of Pine Grove vs. Talcott, XIX Wallace's Re- 
 ports, 678. The note on the record reads : " The Chief Justice did not 
 sit in this case, and took no part in its decision" (p. 679). Justices 
 Miller and Davis dissented.
 
 542 HISTORY OF THE SUPREME COURT 
 
 decision in this case caused great exultation among railroad 
 owners, and formed a precedent much cited thereafter. 
 
 Following this decision came another decision also ranking 
 as an authoritative precedent, and many times cited. It al- 
 lowed railroad capitalists who had secured by every corrupt 
 means immense land grants, to keep those grants intact and 
 safe from forfeiture. 
 
 Railroads Escape Forfeiture of Land Grants. 
 
 The case establishing their vested'right to this plunder was 
 that of Schulenberg vs. Harriman, decided by the Supreme 
 Court of the United States in October, 1874. In June, 1856, 
 Congress, after bribery had been freely used, 18 passed an act 
 granting about 2,388,000 acres of public land in Wisconsin to 
 be allotted by the Legislature of that State for the express 
 purpose of encouraging the building of railroads. 
 
 It was distinctly provided that the railroads were to be built 
 within ten years. In the same year 1856 various rail- 
 road adventurers corrupted the Wisconsin Legislature to pass 
 acts giving them land grants. The La Crosse and Milwaukee 
 Railroad, as we have seen, distributed at least $800,000 in 
 bribes for the passage of an act granting it 1,000,000 acres. 20 
 Another one of the land grants obtained that year was for a 
 
 19 Reference has been already made to the report of a Select Com- 
 mittee of Congress appointed to investigate alleged corrupt combina- 
 tions of members of Congress, and how that committee recommended 
 the expulsion of four prominent Congressmen as having been at the 
 head of corrupt combinations to influence legislation. (Reports of Com- 
 mittees, 1856-1857, Vol. Ill, Report No. 245.) Thirty distinct land-grant 
 acts were passed by Congress in the year 1856. 
 
 20 This $800,000 in bribes, according to the report of the joint Legis- 
 lative Committee of 1858, had been thus distributed: A total of $175,- 
 ooo in bonds had been given to thirteen specified State Senators ; 
 $355,000 in bonds was used to buy seventy specified Assemblymen; 
 $50,000 in bonds had been given to Governor Coles Bashford ; $16,000 
 to other State officials, and $246,000 to certain specified editors and 
 other persons.
 
 UNDER CHIEF JUSTICE VVAITE 543 
 
 railroad from Portage City to Lake St. Croix, with extensions ; 
 this was the particular land grant involved in the case of 
 Schulenberg vs. Harriman. 
 
 The obvious fact was admitted in the suit that neither the 
 railroad nor any part of it had ever been constructed. Yet 
 the railroad capitalists had claimed the land grant as their 
 absolute property, and by 1873, no less an immense quantity 
 than 1,600,000 feet of the most valuable pine timber had 
 been stripped from it. Since no part of the railroad had been 
 constructed, the State of Wisconsin took the position that 
 the land grant reverted to the State or Government, as ex- 
 plicitly provided in the original act of Congress. 
 
 The Supreme Court of the United States did not take this 
 view. In its decision, written by Justice Field, 21 it held that 
 inasmuch as no action had been taken by legislative or judicial 
 proceedings to enforce the forfeiture of the grants, therefore, 
 the lands had not reverted. 22 
 
 It need scarcely be said that this decision legalized the con- 
 summation of the most enormous frauds. Moreover, it gave 
 an unmistakable cue to railroad looters. All that they now 
 had to do was to corrupt Congress to pass acts extending the 
 time for the construction of railroads, deriving meanwhile pro- 
 digious profits from the exploitation of vast areas of land to 
 gain which they had done nothing. And that they did cor- 
 rupt Congress was speedily shown in the scandals concerning 
 the Southern Pacific, the Central Pacific and other railroad 
 measures, not the least of which was the Texas Pacific bill 
 
 21 It may be observed here that Justice Field's brother, David Dudley 
 Field, was at this time representing the Central Railroad of Georgia 
 and other railroads in cases before the Supreme Court of the United 
 States. See, 92 U. S. Reports, 666, etc. But a few years before, 
 David Dudley Field had been the chief attorney pleading for the 
 fraudulent transactions of Jay Gould and James Fisk, Jr. 
 
 22 XXI Wallace's Reports, 44. One of the railroad's attorneys was 
 John C. Spooner, for a long period United States Senator from Wis- 
 consin, and one of the most adroit and conspicuous members of that 
 body.
 
 544 HISTORY OF THE SUPREME COURT 
 
 promoted by Senators Matthews and Lamar, who themselves 
 became Justices of the Supreme Court of the United States." 3 
 
 The Grange Movement. 
 
 At this period there developed an organized agrarian agita- 
 tion which had considerable influence upon politics. It grew 
 to such strength that politicians, especially of the agricultural 
 regions, sought to propitiate it. In the records of the Supreme 
 Court of the United States we find references to it ; and that 
 in its decisions affecting railroads the Supreme Court sought 
 to make an appearance of deference by handing down cer- 
 tain decisions apparently, but not in reality, against the rail- 
 road corporations, is quite certain. 
 
 This organized movement was called the Grangers, com- 
 posed of American agriculturalists. It was essentially a mid- 
 dle-class movement, and it later merged into the Farmers' 
 Alliance, which, in turn, blended into the Populist Party. It 
 was estimated that at the end of the year 1875, there were 
 30,000 granges in existence, with an average of about forty 
 members each ; the order was strongest in the West and North- 
 west, and had a considerable following in the South. Pro- 
 fessing to be non-partisan, it was nevertheless the stimulus 
 of a powerful agitation against discrimination in railroad 
 freight rates, and it declared for the recovery of excess lands 
 held by railroads, and the prohibition of the ownership of 
 land by aliens and foreign syndicates. Later came a demand 
 for Government ownership of railroads. 
 
 The Union Pacific Railroad Relieved from Restitution. 
 
 Goaded into action by public agitation, the Government, in 
 1878, brought a suit against the Union Pacific Railroad Com- 
 pany for the restitution of the enormous sums of which suc- 
 cessive groups of capitalists had swindled the Government. 
 
 23 See details later in this chapter.
 
 UNDER CHIEF JUSTICE WAITE 545 
 
 This company, had obtained, by means of bribing Congress, 
 a land grant of 12,000,000 acres, and also a loan of $27,213,000 
 in Government bonds. The Credit Mobilier Company had 
 then been organized to construct the railroad. Comprising 
 the company were some of the most powerful capitalists in 
 the United States conspicuous bankers, such as Levi P. Mor- 
 ton (later Vice President of the United States) and William 
 H. Macy ; and factory owners, such as Cyrus McCormick and 
 George M. Pullman. Charges of enormous thefts committed 
 by the Credit Mobilier Company resulted in the appointment 
 of an investigating committee by the United States Senate. 
 This committee, called the " Wilson Committee," from the 
 name of Senator Wilson, its chairman, reported in 1873: 
 
 That the total cost of building the Union Pacific Railroad 
 was $50,000,000. 
 
 That the Credit Mobilier Company had charged $93,546,- 
 287.28. 
 
 That " from the stock, income bonds, and land-grant bonds, 
 the builders received in cash value $23,366,000 as profit 
 about forty-eight per cent, on the entire cost." 
 
 The total " profits " were, therefore, about $44,000,000, of 
 which the sum <ff $23,000,000 or more was in immediate cash. 
 The committee reported that large sums of money, borrowed 
 for the ostensible purpose of building the railroad, had at once 
 been divided as plunder in the form of dividends upon stock 
 for which not a cent in money had been paid, in violation of 
 law. 24 
 
 Finally, as a matter of fact, the Union Pacific road was 
 owned entirely by private capitalists, although it had been built 
 almost wholly with Government grants and loans. 
 
 After this looting had been accomplished, the value of the 
 stock of the Union Pacific Railroad had necessarily fallen, at 
 which auspicious time Jay Gould and Russell Sage acquired 
 
 24 Reports of Committees, Credit Mobilier Reports, Forty-second 
 Congress, Third Session, 1872-73, Doc. No. 78: xiv-xx.
 
 546 HISTORY OF THE SUPREME COURT 
 
 the railroad, and, as the report of the Pacific Railroad Com- 
 mission of 1887 showed, subjected it to another comprehensive 
 process of looting. 
 
 In bringing its suit in 1878 for misappropriation and for 
 restitution of the stolen funds, the Government, in its bill of 
 complaint, stated the specifications of fraud and theft, page 
 after page of them. It asked that the construction contracts 
 and land-grant and income mortgages be declared void. The 
 chief attorney for the railroad in this case was William M. 
 Evarts. At Yale Evarts had been a classmate of Chief Jus- 
 tice Waite. Evarts had been an attorney for the Pacific Mail 
 Steamship Company which, as we have seen, had disbursed 
 $1,000,000 in bribes, in 1872, to obtain the passage of an act of 
 Congress. Evarts had also represented the Chicago, Rock 
 Island and Pacific Railroad. Subsequently he became 
 1885-1891 a United States Senator from New York. 
 
 Delivering the majority opinion, Justice Miller decided that 
 the Government had made out no case for relief. He con- 
 cluded with these remarks, the first of which was unfounded 
 in fact, and the remainder of which have seldom been equaled 
 for their sardonic cynicism. 
 
 ". . . The Government " (said he) "^ias received all 
 of the advantages for which it had bargained, and more than 
 it expected. In the feeble infancy of this child of its creation," 
 Miller went on, " the Government, fully alive to its importance, 
 did all that it could to strengthen, support and sustain it." 
 Every Justice of the Supreme Court knew that the Govern- 
 ment had done nothing of the kind. Everyone of them was 
 aware that it was by corruption that the Union Pacific Rail- 
 road promoters had accomplished their ends. Not a single 
 Justice was ignorant of the report of the " Wilson Committee," 
 handed in five years previously, that those promoters had il- 
 licitly expended a corruption fund of nearly $436,000 to get 
 the act of July, 1864, passed, and that another corruption fund 
 of $126,000 had been used to get the act of March 3, 1871,
 
 UNDER CHIEF JUSTICE WAITE 547 
 
 passed by Congress allowing the Union Pacific Railroad exorbi- 
 tant rates for the transportation of Government supplies and 
 mail. 25 Every newspaper in the country had been filled with 
 the details of the testimony. 
 
 " Since," Justice Miller concluded, " it [the Union Pacific 
 Railroad] has grown to vigorous manhood, it may not have 
 displayed the gratitude which so much care called for. If this 
 be so, it is but another instance of the absence of human 
 affections which is said to characterize all corpora- 
 tions. . . ." 20 
 
 One of the points of this decision was that the Government 
 could not sue until the company's debt matured in 1895. This, 
 as we shall see, gave Gould, Sage and associates a new lease 
 of life in their operations, enabling them to loot further on an 
 enormous scale. 
 
 Fraudulent Bonds Given Precedence. 
 
 At the same time, the Supreme Court of the United States, 
 in October, 1878, handed down another decision in favor of 
 the Union Pacific Railroad. The railroad had sued the Gov- 
 ernment for compensation for transporting troops, supplies, 
 etc. The Government set up a counter-claim for five per cent, 
 of the net earnings of the company, as due under the act of 
 July i, 1862, for the payment of bonds. The Court of Claims 
 decided that the railroad had been completed in 1869, and that 
 the company's profit on the operation of the road from 1869 
 to 1875 had been $29,052,045.67'. The Court of Claims, ac- 
 cordingly, gave the Government a judgment, for $1,402,602.28, 
 as being five per cent, on the profits, and it awarded the com- 
 pany $593,627.10 for services. From this decision the com- 
 pany appealed. 
 
 Reversing the judgment, Justice Bradley, writing the opin- 
 
 - r - See, Doc. No. 78, Credit Mobilier Investigation, xvii. 
 20 U. S. vs. Union Pacific Railroad, 98 U. S. Reports, 620.
 
 548 HISTORY OF THE SUPREME COURT 
 
 ion of the Supreme Court's majority, based his decision in 
 favor of the company upon the construction of the act of July 
 2, 1864. The fact that it was for the passage of that very 
 law that the Union Pacific Railroad Company had distributed 
 nearly $436,000 in bribes, was wholly ignored. Bradley held 
 that the act in question authorized the company to issue an 
 equal amount .of first-mortgage bonds to have priority of the 
 Government bonds. 
 
 It was well known that the act was lobbied through for the 
 express purpose of cheating the Government. Here, again, 
 the vaunted principle of law that fraud vitiated every contract, 
 was serenely passed over by the Supreme Court. The circum- 
 stances of the passage of the act, and of the great plundering 
 going on, were not even considered. Bradley held that the 
 act of 1864 empowered the company to issue an equal amount 
 of first-mortgage bonds to have priority over the Government 
 bonds; hence those holding these bonds had the preference of 
 being paid before the Government could receive its five per cent. 
 Justices Strong and Harlan strongly dissented, practically say- 
 ing that the effect of the decision was to facilitate and legalize 
 the swindling of the Government. 27 The same decision was 
 made in the case of actions against the Denver Pacific Rail- 
 road and other railroads. 
 
 The Accompanying and Subsequent Thefts. 
 
 But who owned these first mortgage bonds? The majority 
 report, nine years later, of the Pacific Railway Commission, 
 a Government investigating body reported in detail the vast 
 thefts committed by the Credit Mobilier Company and by 
 Gould, Sage and associates. In consolidating the Kansas Pa- 
 cific, the Denver Pacific and other railroads with the Union 
 Pacific, Gould, Sage and company had misappropriated more 
 
 27 Union Pacific Railroad vs. U. S., 99 U. S. Reports, 402.
 
 UNDER CHIEF JUSTICE WAITE 549 
 
 than $20,000,000 by the fraudulent jugglery of stocks and 
 bonds. The Union Pacific Company had sold not less than 
 7,000,000 acres of land, although it had got no patent from 
 the Government. 28 Great areas of the most valuable coal lands 
 had been fraudulently appropriated. 29 The fraudulent shuf- 
 fling of millions of dollars from one corporation to another 
 was another fertile source of loot. The stock of the Union Pa- 
 cific had been inflated from $38,000,000 to $50,000,000; the 
 bonded indebtedness from $88,000,000 to $126,000,000, and 
 sundry other indebtedness to nearly $10,000,000. 
 
 While this plundering was in process, Gould and Sage were 
 putting the railroad in a condition of bankruptcy for the 
 double purpose of draining its funds, and of pleading that the 
 railroad could not afford to reimburse the Government for its 
 loa;is. The majority report of the Pacific Railway Commis- 
 sion described " the lavish and reckless distribution of the 
 assets of the company in dividends," and pointedly asked why 
 it was that although the Union Pacific Company had been 
 doing a large and profitable business, " it found itself early 
 in 1884 on the verge of bankruptcy." 
 
 Had it not been for the two decisions of the Supreme Court 
 we have cited, this looting would have received a check. The 
 Supreme Court had virtually legalized and justified it. And 
 it is also set forth in the Pacific Railway Commission's ma- 
 jority report that while stealing tens of millions of dollars, 
 and at the very time the Government's action for misappro- 
 priation of funds was before the Supreme Court of the United 
 States, Gould and Sage took measures to relieve themselves 
 from any liability to the Union Pacific Railroad as a corpora- 
 tion. 
 
 " It appears," the majority report of Messrs. Littler and An- 
 derson reads, " that while this litigation was pending, certain 
 
 28 Report of Pacific Railway Commission, Vol. 1 : 102. 
 /&.
 
 550 HISTORY OF THE SUPREME COURT 
 
 proceedings were taken by the directors whereby, by their own 
 acts and votes, they undertook to release themselves from any 
 obligation or liabilities to the company." 
 
 The minority report of Commissioner Partisan was even 
 more penetrating. It declared that the Union Pacific Railroad 
 and the Kansas Pacific Railroad had received about $35,000,- 
 ooo in loans from the Government, of which little had been 
 returned. It recited that up to 1887 the sum of $136,314,- 
 010.73 " na d been dissipated " by the directors of these two 
 railroads. 30 Not less than $84,000,000 of watered stock had 
 been issued. " The Union Pacific Company," the minority re- 
 port continued, "has received $176,294,793.53 in surplus earn- 
 ings and land sales during eighteen years, and if its stock 
 had been fully paid, as Congress required that it should be, 
 and its officers certified under oath that it was, nearly all of 
 that money would be applicable to-day to the payment of the 
 Government debt. The company has paid out $28,650,770 
 in dividends, and $82,742,850 in interest on bonds, nearly 
 all of which was distributed to shareholders without consid- 
 eration . . ." Commissioner Pattison estimated that Jay 
 Gould's personal share of the loot was probably $4O,ooo,ooo. 31 
 
 This report reveals the condition of affairs nine years after 
 the Supreme Court of the United States decided in favor of 
 Gould, Sage and associates of the Union Pacific Railroad 
 Company. Likewise it disclosed the futility of the " Sinking 
 Fund " decision that the Supreme Court of the United States 
 had rendered late in 1878 asserting that in the cases of the 
 debt of the Pacific railroads the act of Congress, of May 
 7, 1878, establishing a sinking fund, was constitutional. 
 First, the Supreme Court denied the application of the Gov- 
 ernment for restitution, and allowed the manipulators to 
 juggle and pocket all the profits. Having done that, the 
 Supreme Court then said that the Government had a right 
 
 30 Report of the Pacific Railway Commission. Vol. 1 : 147. 
 si Ibid.
 
 UNDER CHIEF JUSTICE WAITE 551 
 
 to conduct a sinking fund ! The empty right was allowed, 
 but from where was the money for the sinking fund to come? 
 Stanford, Huntington, Gould, Sage and associates were ap- 
 propriating it by the hundreds of millions for their private 
 fortunes. 
 
 It should be noted that in the " Sinking Fund Cases," 
 Justices Field, Strong and Bradley dissented at length. In 
 the previous cases they had concurred in holding that a con- 
 tract was to be strictly construed. In this case, notwithstand- 
 ing the fact that the Pacific railroads had received the Gov- 
 ernment funds on explicit condition of repaying them, 
 Justice Strong advanced this extraordinary proposition : 
 ". . . 'Had it been dreamed that a call could have been 
 made at any time thereafter designated by Congress, it is 
 inconceivable that the loan proffered would have been ac- 
 cepted. . ." 32 " The loan proffered " was a rare way of 
 putting the case, considering that Congress had been bribed 
 to give that very loan. Vested rights, Justice Strong went 
 on, " no matter how they arise, are all equally sacred, beyond 
 the reach of legislative influence." 33 
 
 Justice Bradley wrote. a long dissenting opinion, and Jus- 
 tice Field, who did likewise, began, " The decision will, in 
 my opinion, tend to create insecurity in the title to corporate 
 property in the country," etc., etc. a groundless assertion, 
 as Field himself no doubt well knew, and as events fully 
 proved. Then Justice Field proceeded to expound an elabo- 
 rate defense of the Pacific railroads, particularly of the Cen- 
 tral Pacific Railroad. 34 
 
 These are some typical instances of decisions regarding 
 railroads handed down under Chief Justice Waite. With a 
 few adverse decisions of comparatively slight importance, 
 railroad interests were dissatisfied, but the greater number of 
 
 32 99 U. S. Reports, 733. 
 
 33 Ibid. The italics are mine. G. M. 
 3 * Ibid.
 
 552 HISTORY OF THE SUPREME COURT 
 
 decisions were entirely favorable to the railroad owners. To 
 enter into the consideration of this mass of decisions is out of 
 the question here. 
 
 Claims Confirmed to Forgers and Perjurers. 
 
 The decisions of the Supreme Court concerning private 
 land claims were also most uniformly favorable to the claim- 
 ants. 
 
 Discovering new evidence of fraud, the Government 
 brought suit to void a decree of the lower court confirming 
 a large California land claim to W. A. Richardson, who, as 
 we have seen, had been officially exposed as a notorious per- 
 jurer. The Government's petition set forth that after sub- 
 mitting his claim to the Board of Land Commissioners, in 
 1852, Richardson became satisfied that he had not evidence 
 enough to support his claim, and that he went to Mexico, and 
 obtained from Micheltorena, the former Mexican Governor 
 of California, " his signature, on or about the first day of 
 July, 1852, to a grant which was falsely and fraudulently ante- 
 dated, so as to impose on the court the belief that it was 
 made at a time when Micheltorena had power to make such 
 grants in California." The Government also charged that 
 Richardson, " in support of this simulated and false docu- 
 ment also procured and filed therewith the depositions of 
 perjured witnesses." 
 
 After getting a confirmation from the United States Dis- 
 trict Court, Richardson turned over the claim to Throckmor- 
 ton, George H. Howard and others. Howard, in 1852, was 
 the United States law agent before the land commission. 
 The Government now charged that " Howard, one of the 
 present defenders had, from the papers in some other suit, 
 derived notice of the fraudulent character of the Michelto- 
 rena grant, and that he failed and neglected [in 1852] to
 
 UNDER CHIEF JUSTICE WAITE 553 
 
 inform the commissioners of the fact, or otherwise defend 
 the interests of the United States in the matter." 35 
 
 Howard, it may be remarked, had also been interested with 
 Teschmaker and others in a sixteen-league claim in Napa 
 County, California, alleged to have been granted by Michel- 
 torena. The Supreme Court of the Unitel States had, in 
 1858, denounced this sixteen-league claim as a forgery, sup- 
 ported by such professional perjurers as Juan Castenada, 
 and had voided it. 36 
 
 Common sense alone would have dictated the fair as- 
 sumption that if Howard had been detected in promoting one 
 forged grant, all his other acts would inferentially stand im- 
 peached. But in deciding the Throckmorton case, the 
 Supreme Court of the Unitel States presented some singular 
 views. Writing the court's opinion, Justice Miller acknowl- 
 edged, to begin with, that the Government was not bound by 
 the statute of limitations. He complained, however, that the 
 suit was brought twenty years after the decree of the Dis- 
 trict Court, and that to retry the case would involve perhap's 
 more appeals. "If we can do this now, some other court 
 may be called on twenty years hence to retry the same matter 
 on another allegation of fraudulent combination in this suit 
 to defeat the ends of justice, and so the number of suits would 
 be without limit." Moreover, he said, there were no speci- 
 fications of the means by which fraud had been accomplished. 
 
 The fact that Howard had been condemned twenty years 
 previously by the Supreme Court for pushing a forged grant, 
 did not count with the eminent Justices. That in many cases 
 proof had been presented that United States district attorneys 
 had often been in collusion with land-claim forgers and had 
 long concealed the fact this, too, was ignored. Nor did 
 the Supreme Court give the slightest consideration to the 
 
 35 U. S. vs. Throckmorton el al., 98 U. S. Reports, 69. 
 
 30 U. S. vs, Teschmaker, Howard ei al., XXII Howard's Reports, 395,
 
 554 HISTORY OF THE SUPREME COURT 
 
 fact that District Judges in California had been interested in 
 these fraudulent claims, and that the scandal was so great 
 that Congress, in 1864, had passed an act prohibiting those 
 judges sitting. That successive Attorneys-General of the 
 United States had exposed the Micheltorena forgeries this, 
 also, had no weight with the Justices. The Throckmorton 
 claim was declared valid, 37 serving as a notable precedent in 
 subsequent private land-claim cases. 
 
 In another case it was shown that in 1845, Alcalde George 
 Hyde had fraudulently presented to George Donner, then 
 only ten years old, and a dummy for officials, a large and now 
 valuable plot of municipal land one hundred varas square 
 (about 3333 feet), in the heart of San Francisco. The law 
 allowed distribution of land to settlers only. In validating 
 this grant, the Supreme Court of the United States, in 1878, 
 said : " We are not aware that the Mexican law prohibited 
 such a grant to an infant." 38 These are some characteristic 
 examples of the Supreme Court's decisions regarding land 
 claims. 
 
 New Associate Justices. 
 
 Many changes occurred in the personnel of the Supreme 
 Court at this time. Justice David Davis resigned in 1877, 
 and became a United States Senator from Illinois. His suc- 
 cessor, appointed by President Hayes, was John M. Harlan, 
 of Kentucky. 
 
 Harlari's father, James Harlan, had been a Whig politician of 
 some note representing a Kentucky district in Congress, 1836 
 to 1844, and had been Attorney-General of Kentucky from 
 1850 to 1863. Entering politics, John M. Harlan had been 
 defeated for Congress, in 1859; had been breveted a colonel 
 in the Union 'Army during the Civil War ; had been elected 
 Attorney-General of Kentucky in 1863 ; had then practiced law, 
 
 37 U. S. vs. Throckmorton, 98 U. S. Reports, 61-71. (October, 1878.) 
 
 38 Case of Palmer vs. Low, 98 U. S. Reports, 1-19.
 
 UNDER CHIEF JUSTICE WAITE 555 
 
 and had been unsuccessful in 1871 and 1875 in his candidacy for 
 Governor of Kentucky. 
 
 He was one of the visiting commissioners to Louisiana in 
 the Hayes-Tilden electoral contest ; and it was openly charged 
 by Senator Chandler that for his services to Hayes on this 
 occasion, Hayes rewarded him by an appointment to the 
 Supreme Court of the United States. On January 21, 1901, 
 Senator Pettigrew read in the United States Senate a letter 
 signed by Senator Chandler, published in a New York news- 
 paper in 1877. In this letter Chandler made the charge that 
 Justice Harlan was appointed to the Supreme Court as a 
 result of his services as a visiting commissioner to Louisiana 
 during the Hayes-Tilden dispute. After Pettigrew had fin- 
 ished reading the letter, Chandler arose and said that every 
 word of it was true. 38 
 
 The choice of Harlan was largely a personal appointment 
 of Hayes. Harlan was not conspicuous as a railroad lawyer, 
 although the fact that his nomination was confirmed by a Sen- 
 ate controlled by railroad attorneys and stockholders did not 
 pass unnoticed. He was forty-two years old at the time. 
 
 Retiring on a pension,, in 1880, Justice Strong was suc- 
 
 39 In the Presidential election of 1876, the result as to whether Hayes 
 or Tilden was elected was uncertain. Each side charged fraud, and the 
 vote of certain reconstructed States was the deciding factor. An 
 Electoral Commission, composed of five Senators, five Representatives, 
 and five Associate Justices of the Supreme Court of the United States, 
 was created to decide the election. 
 
 The New York Sun, a supporter of Tilden, reiterated the charge 
 that after Justice Bradley had prepared a written opinion in favor of 
 the Tilden electors in Florida, he had changed his views during the 
 night preceding the vote in consequence of pressure brought to bear 
 upon him by Republican politicians and Pacific Railroad magnates whose 
 carriages, the Sun said, surrounded his house during the evening. On 
 September 2, 1877, Bradley wrote to the Newark Advertiser denying 
 " the whole thing as a falsehood." " Not a single visitor called at my 
 house that evening. . . ." The charge, Bradley added, was " too 
 absurd for refutation." (" Miscellaneous Writings of the Late Joseph 
 P. Bradley," etc., p. 221.) Evidently the Sun sought to convey the idea 
 that Hayes was backed by railroad grandees. So he was. But Tilden, 
 too, had the support of many of them ; he was one of the most promi- 
 nent of railroad attorneys, and an extensive holder of railroad stocks.
 
 556 HISTORY OF THE SUPREME COURT 
 
 ceeded by William B. Woods, of Ohio. Woods was re- 
 garded as a political adventurer. Born in 1824, he had been 
 a Democratic politician in Ohio. An officer in the Union 
 army during the Civil War, he, in 1866, had settled in Ala- 
 bama, during the reconstruction period, and had become a 
 leading " carpet-bagger " Republican. He became State Chan- 
 cellor in 1868, and a United States Circuit Court judge, in 1870. 
 His decisions in that court were notoriously in favor of rail- 
 road corporations. 
 
 Opposition to Stanley Matthews. 
 
 The next appointment, that of Stanley Matthews by Presi- 
 dent Hayes, aroused the most intense opposition. 
 
 Matthews was nominated to succeed Swayne, who resigned 
 because of disability. In 1877, Matthews had succeeded 
 John Sherman, as a United States Senator from Ohio. Mat- 
 thews was not only Jay Gould's chief attorney in the middle 
 West, but while in the Senate he frequently appeared in 
 court as attorney for the Louisville and Nashville Railroad. 40 
 the Adams Express Company 41 and other corporations. 
 While a member of the United States Senate, and at the 
 very time he was appointed to the Supreme Court, he was 
 a director of the Knoxville and Ohio Railroad. 42 He was 
 also counsel for the Springfield and Mansfield Railroad, 43 and 
 for other railroads, and held considerable stock in railroad 
 companies. For many years he had been attorney for the 
 Cincinnati, Hamilton and Dayton Railroad, 44 for which, as 
 we have noted, Chief Justice Waite had also been counsel, 
 
 40 See, Stevens et al. vs. Louisville and Nashville Railroad Company, 
 U. S. Courts Reports, Sixth Circuit (Flippin), Vol. II: 716, etc. This 
 railroad dominated politics in Kentucky and Tennessee. 
 
 41 Ibid., 673. 
 
 42 " Poor's Railroad Manual " for 1880: p. 492. 
 
 43 In a case concerning this railroad he was disqualified from sitting, 
 having been of counsel in the case. IV Supreme Court Reporter, 259. 
 
 44 XIX Ohio State Reports, 226, etc.
 
 UNDER CHIEF JUSTICE WAITE 557 
 
 when an attorney. Matthews had been one of the counsel 
 for the Hayes electors before the Electoral Commission, and 
 had industriously worked for the seating of Hayes. 
 
 Matthews' activities in the Senate for railroad corporations 
 were notorious ; he and Senator Lamar (who succeeded him 
 on the Supreme Court bench) were the chief pushers and 
 advocates of the amendatory bill of 1878 in favor of the 
 Texas Pacific Railway. This railroad company, in 1871, had 
 received a great land grant of 18,000,000 acres, and Gov- 
 ernment aid of $31,750,000 in bonds, on condition that it 
 construct, within a certain time, a railroad from the Mississippi 
 River to San Diego, California. But it had only built a small 
 portion of the road, and a move was under way to declare its 
 subsidies forfeited. 
 
 Senator Matthews, on March 19, 1878, reported Senate 
 Bill No. 942, extending the time for building the railroad, 45 
 and Senator Lamar followed with a long speech in favor of 
 the bill. Matthews also reported Senate Bill No. 474 
 authorizing the Southern Pacific Railroad to build railroad 
 and telegraph extensions, and giving Government aid. 46 
 Likewise he reported another bill in favor of the .Northern 
 Pacific Railroad. Of the flagrant corruption of Congress 
 by the Texas Pacific Railway promoters, and by Jay Gould 
 and Collis P. Huntington, details are given later in this chap- 
 ter. Matthews was one of the Senators conspicuously striv- 
 ing to defeat the Pacific Railroads Funding Act. The bill, 
 however, was passed. 
 
 Denounced as a Railroad Tool. 
 
 On February 7, 1881, the following telegram was received 
 in Washington : 
 
 45 The Congressional Record, Vol. 7, Part 2, Forty-fifth Congress, 
 Second Session, 1878: p. 1852. 
 * Ibid.
 
 558 HISTORY OF THE SUPREME COURT 
 
 " To the Judiciary Committee of the United States Senate, 
 
 " The Hon. A. G. Thurman, Chairman. 
 
 " In behalf of 800 business firms of the New York Board 
 of Trade and Transportation, we respectfully but earnestly 
 protest against the confirmation of the Hon. Stanley Matthews 
 as judge of the Supreme Court of the United States for the 
 following reasons : 
 
 " We are informed and believe that the great railroad cor- 
 porations of the country are endeavoring to obtain control 
 of this Court of last resort, which has heretofore been the 
 most important bulwark in defending the public interests 
 against the encroachments of corporations ; that Mr. Matthews 
 has been educated as a railroad attorney, and views railroad 
 questions from a railroad standpoint; that his actions while 
 in the United States Senate prove this, and in this important 
 .respect render him unfit for a Justice of the Supreme Court. 
 
 " AMBROSE SNOW, President, 
 " DARWIN R. JAMES, Secretary." 47 
 
 The explanation of this protest lay in this fact: The 
 middle-class business men were infuriated at the dominance 
 of such lordly railroad magnates as Vanderbilt, Gould, Sage, 
 Huntington and Stanford. 
 
 Through their control of transportation facilities the rail- 
 road nabobs were extorting whatever freight rates they 
 pleased and employing discriminative methods against the 
 ordinary shipper. Largely by this alliance the first great 
 Trust the Standard Oil Company had already become 
 a great power, foreboding the time when trusts of all kinds 
 would force out competition and efface the small factory 
 owner and the small distributor. To fight this developing 
 power, the middle class formed such organizations as the 
 Anti-Monopoly League; as the middle class, in aggregate, 
 
 47 This telegram was published in the New York Times and other 
 newspapers at the time.
 
 UNDER CHIEF JUSTICE WAITE 559 
 
 then possessed immense resources and strength, many of the 
 leading newspapers supported its agitation. It desired 
 judges representing middle-class interests; the essential ob- 
 jection to Matthews was that he was an instrument of the 
 great railroad magnates. 
 
 Hence it was that such newspapers as the New York Times, 
 the New York Sun and others bitterly denounced the ap- 
 pointment of Matthews. The New York Times, in an edi- 
 torial entitled, " His Majesty, Jay Gould," 48 described how 
 Gould's control was constantly extending over railroads, the 
 Associated Press and Congress. " There would still remain 
 the Supreme Court," went on the editorial, " but no one can 
 suppose that he will long permit it to retain its independence. 
 Even if he cannot secure the confirmation of Mr. Stanley 
 Matthews he will sooner or later contrive to have any 
 vacancies that may occur filled in such way as to provide 
 against the contingency of decisions hostile to his interests. 
 . . ." The New York Sun declared that if Matthews' nomi- 
 nation were confirmed it would be equivalent to putting Jay 
 Gould upon the Supreme Court Bench. Other newspapers 
 contained similar editorials, demanding that the nomination 
 be withdrawn. 
 
 The Contest Over His Appointment. 
 
 Associate Justice Field, Senator Lamar, Senator Plumb and 
 others were moving every possible influence to obtain a con- 
 firmation. But public criticism was either too severe just 
 then or Senators representing antagonistic railroad groups 
 were opposed to Matthews, as being too much the creature of 
 Jay Gould. 49 Whatever were the actuating reasons, the 
 Senate did not confirm. 
 
 48 Published February 23, 1881. 
 
 49 As illustrative of the railroad interests of a majority of the Sen- 
 ators, the case of Senator William B. Allison, of Iowa, may be men- 
 tioned. When a member of Congress, in 1867, Allison had been
 
 560 HISTORY OF THE SUPREME COUUT 
 
 When, however, President Garfield succeeded Hayes, 
 Matthews (who was a relative of Garfield) was renominated, 
 and the contest again begun. Lamar, as a member of the 
 Judiciary Committee, renewed his efforts for Matthews ; Sena- 
 tors George F. Edmunds and David Davis led in opposing the 
 confirmation. Edmunds, long the chairman of the Judiciary 
 Committee, was himself a railroad lawyer, representing the 
 Michigan Central Railroad and other railways. Why did he 
 oppose Matthews? The conflict of the magnates with one 
 another in the economic field had its reflex in the political; 
 certain magnates sought, to the exclusion of other magnates 
 with whom they were at war, to control the courts. Senators 
 representing different magnates thus took opposite sides in 
 favoring or opposing this or that measure or appointment. 
 
 The Senate Judiciary Committee, on May 9, 1881, rejected 
 Matthews' appointment. On May 12, 1881, the report of this 
 committee was taken up in executive session ; and after a long, 
 acrimonious and stubborn debate, the Senate by a vote of 24 
 to 23 a majority of one vote confirmed the appointment. 50 
 The information leaked out that in the secret session, Sena- 
 tors invidiously pointed out that measures which Matthews 
 had favored or opposed, as a Senator, would come up before 
 the Supreme Court for adjudication. 
 
 vice-president of the Sioux City and Pacific Railroad, which had re- 
 ceived a land grant of one hundred sections, and $16,000 of Government 
 bonds for each mile of railroad. In the construction of this railroad, 
 the sum of $4,000,000 was fraudulently appropriated. By an act lobbied 
 through Congress, in loop, when Allison was still a powerful Senator, 
 the Sioux City and Pacific Railroad Company was virtually released 
 from paying back more than one-tenth the sum it still owed the 
 Government. Ex. Documents Nos. 181 to 252, Second Session, Forti- 
 eth Congress, 1867-68, Doc. No. 203 ; Report of Pacific Railway Com- 
 mission, Vol. 1 : 193, etc. 
 
 50 Appleton's " Annual Cyclopedia " for 1881 : p. 194. Considering 
 that long previously the Senate had established an unwritten rule that 
 no objection should be made to any appointee who ha^l been a member 
 of the United States Senate, and that his appointment should be 
 promptly confirmed on the ground of " Senatorial courtesy," this con- 
 test over Senator Matthews' appointment was unprecedented and re- 
 markable.
 
 UNDER CHIEF JUSTICE WAITE . 561 
 
 Justices Gray and Blatchford. 
 
 The next appointment, made in December, 1881, was that 
 of Horace Gray, to succeed Justice Clifford. Gray was the 
 grandson of William Gray, one of the largest shipowners in 
 New England, and the richest man in Boston in 1810. Of 
 the activities of William Gray in getting bank charters we 
 have given an account in an earlier chapter. Horace Gray 
 belonged to the class in Boston styling themselves the old 
 aristocracy ; he was accused of being obtrusively snobbish ; 
 judging from the anecdotes related of him, he was, no doubt, 
 a thorough snob and a formalist of the most pronounced 
 and provoking type. 51 
 
 Graduated from Harvard, Gray traveled extensively in 
 Europe, and was once presented in approved form at the court 
 of King Louis Phillipe. Admitted to the bar in 1851, he 
 
 51 Such a stricture seems justified by these and other anecdotes re- 
 lated of him when he was a judge and Chief Justice of the Supreme 
 Court of Massachusetts: 
 
 " At the trial of a certain case Judge Gray suddenly summoned a 
 man to appear at a particular stage of the proceedings. The man re- 
 sponded promptly and appeared in the court room attired as at his 
 work bench, in his shirt sleeves. Judge Gray, after commenting severely 
 upon such disrespect to the court, waived the urgency of the pending 
 cause, and directed the man to go home and put himself in the proper 
 garb for the humble part which he was to take in the doings of the 
 august tribunal." (New York Times, December 20, 1881.) 
 
 " His tirades," said the Washington correspondence of the Philadel- 
 phia Press, " against trembling deputy-sheriffs and frightened witnesses 
 have been told over and over again. Only two lawyers in Boston have 
 ever been able to turn the tables on him. One was Henry E. Payne; 
 the other Sidney Bartlett. 'If your honor please ' said Payne one 
 day, beginning a motion. ' Sit down, sir ; don't you see that I am talk- 
 ing with another justice? ' thundered the Chief Magistrate. Mr. Payne 
 took his hat and walked out of the courtroom. A half-hour afterward 
 a messenger reached his office with a note saying that Judge Gray was 
 willing to hear him. ' I am not willing to be heard,' answered the old 
 lawyer, ' until Judge Gray apologizes.' And apologize the judge had to. 
 
 " ' Mr. Bartlett,' said the Chief Justice one afternoon, throwing him- 
 self back in his chair, 'that is not law and it never was law.' The 
 veteran smiled, and looking over the bench said, ' It zvas law, your 
 Honor, until your Honor just spoke.'" Republished in the New York 
 Times, issue of March 13, 1882.
 
 562 HISTORY OF THE SUPREME COURT 
 
 became, in 1854, a reporter of decisions of the Massachusetts 
 Supreme Judicial Court. In 1864, he was appointed Asso- 
 ciate Justice of that court, and in 1873 became its Chief 
 Justice. He was extremely tall not less than six feet six 
 inches, and never personally popular. The circumstances of 
 his receiving a large addition to his already considerable for- 
 tune by virtue of a decision of the Supreme Court of the 
 United States while he was a member of that Court, are 
 related in a subsequent chapter. 
 
 Shortly after Gray's appointment, Samuel Blatchford, of 
 New York, was appointed to succeed Justice Hunt. 52 
 
 Blatchford was the son of Richard Blatchford, a lawyer 
 of note in New York City who, in 1826, became the financial 
 agent and counsel for the Bank of England. He later acted 
 in the same capacity for the Bank of the United States, and 
 adjusted the final settlement between these two banks, when 
 the charter of the Bank of the United States expired in 1836. 
 His financial dealings were large for his day. One of these 
 dealt with the North American Trust and Banking Company. 
 Although having several millions of dollars in stocks and 
 bonds, this company, soon after its formation, became em- 
 barrassed for want of sufficient funds, and resorted to varioun 
 expedients " some," as Judge Roosevelt decided, " at least, 
 of a questionable character." Two mortgages for a total of 
 $1,500,000 were then made out to Richard Blatchford and 
 others. A suit, of a very involved nature, was brought to 
 have these mortgages declared invalid on the ground of their 
 being fraudulent. 53 
 
 52 President Arthur had first offered the appointment to United States 
 Senator Roscoe Conkling of New York. Conkling was one of the 
 counsel for the New York Central Railroad. (See, XXII Wallace's, 
 Reports, 621, etc.) After Conkling declined the appointment, Arthur 
 offered it to Senator Edmunds, who, as we have seen, was also a noted 
 railroad attorney. Upon Edmunds' declination, Blatchford was ap- 
 pointed and he accepted. 
 
 53 Case of Curtis vs. Leavitt, Barbour's Supreme Court Reports (N. 
 Y.), Vol. XXVII: 312-378. (Dec., 1853.)
 
 UNDER CHIEF JUSTICE WAITE 563 
 
 Blatchford's Interests and Associations. 
 
 Samuel Blatchford became private secretary to Governor 
 William H. Seward, serving until 1841, and in 1845 asso- 
 ciated himself as a law partner with Seward and Christopher 
 Morgan. As a State Senator, Seward, on January 31, 1832, 
 had made an elaborate defense of the Bank of the United 
 States in reply to a legislative resolution declaring that its 
 charter ought not be renewed. 54 Seward was counsel for 
 Erastus Corning, a large capitalist of Albany who was the 
 head of the projectors of. the Minnesota and Northwestern 
 Railroad Company which, in 1854, by fraud and corruption 
 obtained from Congress an extens.ive land grant of 900,000 
 acres. 55 Christopher Morgan was the brother of Edward 
 Barber Morgan, a founder of the Wells-Fargo Express Com- 
 pany and of the United States Express Company. A multi- 
 millionaire, Christopher Morgan was president of the Wells- 
 Fargo Company, and a director for many years of the United 
 States Express Company. 50 
 
 In 1854, Samuel Blatchford returned to New York City, 
 and formed a partnership with Clarence A. Seward, son of 
 William H. Seward, and with Burr Griswold. Their prac- 
 tice was largely one for railroad and express companies. 57 
 
 54 Jenkins' "Political History of New York" (Edition of 1849) : pp. 
 3787380. 
 
 55 Reports of Committees, Thirty-third Congress, First Session, Vol. 
 Ill: Rep. No. 352: 30. For full details from the official documents see 
 " History of the Great American Fortunes," Vol. Ill : pp. 24-25, 44, etc. 
 
 50 Stimson's " Express History," 75, 462, etc. 
 
 57 Thus, to give four examples: Clarence A. Seward represented. 
 William B. Dinsmore, president and treasurer of the Adams Express 
 Company (XXXIV Howard's Practice Reports [N. Y.], 1868: p. 421), 
 and with Benjamin R. Curtis, former Associate Justice of the Supreme 
 Court of the United States, he represented the same corporation in 
 Ellis vs. Boston, Hartford and Erie Railroad (107 Mass. Reports, i j : 
 1869). Seward represented the Adams Express Company in the suit 
 of Caldwell against that company (XXI Wallace's Reports, 143) and 
 he was counsel for the Southern Express Company in the action of 
 Vermilye and Company against that corporation (XXI Wallace's Re- 
 ports, 265). Many other instances could be given.
 
 564 HISTORY OF THE SUPREME COURT 
 
 Another son of William H. Seward, and named after him, 
 became a director of the Southern Central Railroad of New 
 York. Blatchford was made a United States Circuit Court 
 judge ; at the time of his appointment to the Supreme Court 
 of the United States, the President of the United States Ex- 
 press Company was Thomas C. Platt, for more than twenty 
 years the Republican boss of New York, and twice United 
 States Senator from that State. The campaign contributions 
 made by every variety of corporation during the long period 
 of Platt's dictatorship were so enormous and long continuing 
 that it is out of the question to enter here into a narrative 
 of them. Official investigations, to which we shall have need 
 of referring, disclose the particulars, especially in the case of 
 the great insurance companies which, in turn, have been con- 
 trolled by the railroad magnates. 58 
 
 The express companies, starting with little capital, had ex- 
 panded to enormous proportions and were making immense 
 profits. Dissatisfied, the shippers were continually complain- 
 ing; litigation was more and more increasing; and the express 
 companies, like other corporations, sought to insure themselves 
 against adverse legislation and court decisions. 
 
 Between the express monopoly and the railroads was an 
 intimate alliance, comprehending, in many cases, the same 
 capitalists. Thus, Leland Stanford, D. O. Mills and Charles 
 F. Crocker were directors of the Wells-Fargo Express Com- 
 pany at the time of Blatchford's appointment to the Supreme 
 Court of the United States. Blatchford owned stock in the 
 Illinois Central Railroad and many other corporations. In 
 the Tennessee Bond Cases, involving claims to unpaid bonds 
 
 58 This item is one of many signifying the political debauchery by 
 corporations : The New York Legislative Insurance Committee, in its 
 extensive report in 1906, stated that for many years the Equitable Life 
 Assurance Society had been giving $30,000 annually to the New York 
 State Republican Committee (controlled by Platt) and that all of the 
 other insurance companies variously did the same, contributing to 
 the campaign funds of both the Republican and Democratic parties, 
 State and National. Vol. X : 10, 62, etc., etc.
 
 UNDER CHIEF JUSTICE WAITE 565 
 
 claimed by the Louisville and Nashville Railroad and numer- 
 ous other railroads Blatchford and Justice Stanley Matthews 
 were disqualified from sitting because of their interest. 59 To 
 such an extent did the railroad and express company interest 
 become merged that the principal ownership of the express 
 monopoly gradually became vested in J. P. Morgan, the Van- 
 derbilts, the Goulds, the Standard Oil Company, the Harri- 
 man estate, Lewis Cass Ledyard (a grandson of Lewis Cass) 
 and in other railroad magnates. 
 
 So well did the express companies succeed in warding off 
 hostile legislative and court action, that the recent petition 
 of the Merchants' Association of New York and of the 
 Chambers of Commerce of Chicago, Philadelphia, Boston, De- 
 troit, St. Louis, Denver and other cities to the Interstate Com- 
 merce Commission sets forth that the annual profits of the 
 express companies have been 150 per cent, in addition to which 
 great cash reserves are held. 
 
 Validation of the Vast Maxwell Land Claim. 
 
 Of the large body of decisions handed down by the 
 Supreme Court of the United States during the last years of 
 Waite's Chief Justiceship, nearly all were uniformly favora- 
 ble to railroad and other corporations. 
 
 It was under Waite that the Supreme Court validated the 
 enormous Maxwell private-land grant. This claim had 
 originally been asserted by Charles Beaubien and Guadalupe 
 Miranda, claiming title under a grant said to have been made 
 by the Mexican Governor Armijo in 1841. On September 
 15, 1857, the United States Surveyor General of New Mexico 
 had reported the grant as embracing 96,000 acres. One L. 
 B. Maxwell bought the claim, and contended that it comprised 
 
 59 In the Chicago Lake Front case affecting the Illinois Central Rail- 
 road's title, Blatchford could not sit because he owned stock. For the 
 Tennessee Bond Cases, see, V Supreme Court Reporter, 995.
 
 566 HISTORY OF THE SUPREME COURT 
 
 nearly 2,000,000 acres. Holding that the old Mexican laws 
 had limited the area granted to any one individual to 48,000 
 acres, the Commissioner of the General Land Office, upheld by 
 the Secretary of the Interior, refused, in 1869, to certify more 
 than 96,000 acres. 00 
 
 One of the principal owners of the claim was Stephen B. 
 Elkins, a conspicuous Republican politician, and a delegate 
 in Congress. Elkins' efforts at Washington bore fruit. A 
 new survey was ordered by the Land Office ; one of the sur- 
 veyors was Elkins' brother, John T. Elkins. The surveyors 
 reported the grant as embracing, in all, 1,714,764.94 acres in 
 New Mexico and extending into Colorado. On May 19, 1879, 
 the General Land Office gave a quit claim for the whole of 
 this area. It was then mortgaged to a syndicate of Holland 
 capitalists for the sum of 700,000 in sterling money and 
 Dutch currency. 61 
 
 On August 25, 1882, the Government brought suit to have 
 the grant declared void. Suing the Maxwell Land Grant 
 Company, the Pueblo and Arkansas Valley Railroad Com- 
 pany and the Denver and Rio Grande Railway Company, the 
 Government in five specifications declared that the grant, 
 under the laws of Mexico, could not have been for more than 
 96,000 acres of land, and that the patent for its enormous 
 enlargement had .been obtained by a conspiracy of fraud and 
 deceit practiced upon the Land Office. 02 
 
 But on April 18, 1887, the Supreme Court of the United 
 States validated the whole claim for 1,714,764.94 acres, bas- 
 ing its decision upon a disingenuous act sneaked through 
 Congress in 1860. That act, joined with another act passed 
 in the same year, allowed surveys to be made at the expense 
 
 60 " Land Titles in New Mexico and Colorado," House Reports, First 
 Session, Fifty-Second Congress, 1891-92, Vol. IV: Report No. 1253. 
 (Committee on Private Land Claims.) 
 
 01 House Reports, 1891-1892, Vol. IV, Report No. 1353 : 7. 
 
 62 See the bill of particulars reciting the history of the frauds in VII 
 Supreme Court Reports, 1017, and 121 U. S. Reports, 327.
 
 UNDER CHIEF JUSTICE WAITE 567 
 
 of " settlers," and provided that the amounts deposited by 
 " settlers " should be received as part payments for the lands. 
 These acts bore no reference whatever to the Maxwell grant; 
 successive Land Commissioners had pointed out that their 
 only object was to authorize fraudulent surveys ; but the 
 Supreme Court seems to have discovered that they allowed 
 a grant of 96,000 acres to be extended to cover nearly 2,000,000 
 acres. 63 
 
 The decision was much denounced. Stephen B. Elkins, 
 the chief beneficiary, married a daughter of United States 
 Senator Henry G. Davis of West Virginia and financed the 
 construction of a number of railroads. He had built for him 
 a palace-like castle in the town bearing his name in West 
 Virginia ; he became a United States Senator, in 1895 ; and he 
 died a multimillionaire. 
 
 Justice Field Protects Leland Stanford. 
 
 At about the time when this decision was handed down, 
 Associate Justice Field was subjected to insinuating criticisms 
 for his actions in several matters. The Pacific Railway Com- 
 mission was investigating the consecutive frauds and thefts 
 of the promoters and manipulators of the Pacific railroads. 
 On July 26, 1887, the Commission, when in San Francisco, 
 issued an order requiring Leland Stanford to testify. The 
 particular questions the Commission pointedly had put to 
 Stanford were these : 
 
 What part of a certain voucher for $171,000 that had been 
 made out by him (Stanford) had been used for the purpose 
 of influencing legislation? (This $171,000 or to be exact, 
 $171,781.89 had been paid out by Stanford in cash, on 
 December 31, 1875.) 
 
 03 The full narrative of this grant, thus validated to comprise a 
 colossal area, is related in the " History of the Great American For- 
 tunes/' Vol. Ill ; 324-334.
 
 568 HISTORY OF THE SUPREME COURT 
 
 What lawyers had been in the habit of attending the Legis- 
 lature with him (Stanford) ? 
 
 Did he (Stanford) ever give away any portion of certain 
 exhibited vouchers to S. T. Gage "to influence legislation? 
 (Gage was one of the directors of the Southern Pacific Rail- 
 way Company.) 
 
 Did he (Stanford) ever give any money to W. B. Carr for 
 the purpose of influencing legislation in the California Legis- 
 lature ? 
 
 Upon Stanford's refusal to answer these questions, the 
 Pacific Railway Commission applied to the United States Cir- 
 cuit Court for an order compelling him to testify. 
 
 Field was then in San Francisco, presiding over the Circuit 
 Court, for until the act creating the United States Circuit 
 Court of Appeals was passed, each Associate Justice of the 
 Supreme Court of the United States was assigned, for a part 
 of the time, to a certain circuit. The United States Circuit 
 Court at San Francisco was composed of Field, and Judges 
 Lorenzo Sawyer, Sabin and Hoffman. Field, as we have seen, 
 had been appointed to the Supreme Court upon the personal 
 solicitation of Stanford. Judges Sawyer and Sabin owed 
 their seats to Stanford and Huntington. In fact, Huntington 
 testified before the Pacific Railway Commission that he and 
 his associates made it a system to control the judicial, as well 
 as the legislative and executive, departments of government. 
 Judge Hoffman had been on the bench before Stanford and 
 Huntington had acquired power ; his decisions in the private 
 land-claim cases had revealed him as an honest judge. 
 
 On August 29, 1887, the Circuit Court gave its decision, 
 written by Justice Field and Judge Sawyer, denying the appli- 
 cation of the Commission, on the ground that the act creating 
 the Commission did not authorize compulsory testimony. 
 Judge Hoffman dissented. " The decision of the Circuit 
 Court of the United States in California," reported the Pacific 
 Railway Commission, " made it impossible for this
 
 UNDER CHIEF JUSTICE WAITE 569 
 
 sion to obtain answers to the questions which Congress had 
 directed to be put." 64 As to the extent of the corruption car- 
 ried on by Huntington and Stanford, the Commission re- 
 ported, " There is no room for doubt that a large portion of 
 $4,818,535 was used for the purpose of influencing legisla- 
 tion, and preventing the passage of measures deemed hostile 
 to the interests of the company, and for the purpose of in- 
 fluencing elections." G5 
 
 During all of these years, Field was intimate with Stanford 
 and frequently, when Stanford was a United States Senator, 
 dined at his house in Washington. In the writings of Justice 
 Bradley there is published a letter, dated March 23, 1891, 
 from Justice Field to Senator James G. Fair, a California 
 millionaire, stating that he (Field) had dined the previous 
 evening at General Schofield's, and that among those present 
 were the President, Chief Justice Fuller, Senators Stanford, 
 Sherman and many other high functionaries. 06 
 
 While on the subject of the corrupt methods of Stanford 
 it will be pertinent to refer here to the report of the San 
 Francisco Grand Jury, of August, 1891. This body called 
 the " Wallace Grand Jury," was impaneled under Judge 
 Wallace to investigate municipal corruption, particularly the 
 debauching of politics by the Southern Pacific Railway. 
 Gage refused to testify, as did other railway directors, and 
 Buckley, the political boss of San Francisco, fled from the 
 Grand Jury's jurisdiction. When Stanford was summoned 
 to testify, the Supreme Court of California was instantly ap- 
 pealed to by the railroad's lawyers. That court, by a vote 
 of four to three, held that the Grand Jury was improperly con- 
 
 64 Report of the Pacific Railway Commission (Ex. Doc. No. 51, 
 Fiftieth Congress, First Session), Vols. I and II: 121, and Vol. VII: 
 4215. 
 
 65 Ibid., Vol. 1 : 84. 
 
 06 " Miscellaneous Writings of Joseph Bradley," pp. 350-351. The 
 purpose of the letter was an enquiry concerning the effectiveness of 
 hydraulic mining, over which an academic discussion had taken place at 
 the dinner.
 
 57O HISTORY OF THE SUPREME COURT 
 
 stituted, " because of an irregularity in the appointment of the 
 elisor." 7 
 
 A Virulent Attack by Justice Field. 
 
 The other occasion on which Justice Field's course aroused 
 critical comment was in the case of an eleven-league tract 
 in California held by the San Jacinto Tin Company, the River- 
 side Canal Company and the Riverside Land and Irrigation 
 Company. 
 
 This tract was confirmed to de Aguirre by the Board of 
 Land Commissioners and the District Court in 1867. In 1883 
 the Attorney General of the United States brought suit to have 
 the patent declared void.' The Government alleged " that 
 throughout the whole transaction, from the beginning of the 
 effort to have this survey made until its final completion and 
 the issue of the patent, all of the proceedings were dictated 
 by fraud and all of the officers of the government below the 
 Secretary of the Interior who had anything to do with it were 
 parties to that fraud and to be benefited by it." The Govern- 
 ment set forth that Surveyor-General Upson ; his chief clerk, 
 Con way; Thompson, the deputy surveyor for California, and 
 Joseph H. Wilson, the Commissioner of the General Land 
 Office, knew that the tract contained tin ore, and that they 
 " were all interested and part owners of the claim at the 
 time this survey was made, and at the very time they acted 
 in reference to its final confirmation." 
 
 Yet the Supreme Court of the United States (Justice Miller 
 writing its decision) accepted the depositions and reports of 
 the very officials who had thus been implicated! Wilson had 
 made a " full report," the Supreme Court said, in 1867, and 
 this report it assumed to receive as authentic, notwithstanding 
 
 07 See, Report of Wallace Grand Jury, contained in " Report on the 
 Causes of Municipal Corruption in San Francisco," etc. Published by 
 order of the Board of Supervisors, etc., San Francisco, 1910: p. 9. In 
 this document, comprising the full report of the Oliver Grand Jury of 
 1908, the presentment of the Wallace Grand Jury is reprinted.
 
 UNDER CHIEF JUSTICE WAITE 571 
 
 the fact that the Government now showed Wilson to have 
 been interested. The Supreme Court pretended not to go 
 behind the formal, official acts of the Government officers dis- 
 closed as promoters and beneficiaries of the fraud. It thus 
 consistently followed the long line of precedents begun by 
 Marshall in ignoring motives and acts of fraud and corrup- 
 tion. Although conceding that Conway had bought the claim, 
 and had organized a corporation to mine tin ore, the Supreme 
 Court, nevertheless, held that the fraud was not proved, and 
 on March 19, 1888, decided against the Government. 08 
 
 Justice Field, however, was not content with concurring 
 in this decision. He went out of his way to indulge in a 
 savage attack upon the Attorney-General, accusing him of 
 bringing the suit at the instigation of a third party and of 
 using the Government machinery for ulterior reasons. 09 It 
 was remarked that if the Supreme Court took the position that 
 it was not at liberty to inquire into motives of legislature or 
 official, no matter what fraud or corruption lay behind, what 
 right had a Supreme Court Justice to take advantage of his 
 power to assail the motives of the Attorney-General? 
 
 Lamar Succeeds Matthews. 
 
 The last appointment to the Supreme Court made during 
 the period when Waite was Chief Justice seemed to provoke 
 almost as much criticism as that of Stanley Matthews. As 
 Woods' successor as Associate Justice, President Cleveland 
 in 1888, appointed Lucius Q. C. Lamar of Mississippi. Born 
 in 1825, Lamar had been in Congress in 1857-1861, had 
 served in the Confederate military and diplomatic service, 
 was a member of Congress after the Civil War, and was 
 elected a United States Senator in 1873. In the Senate he 
 was chairman of the Standing Committee on the Pacific 
 railroads; and he had, as we have related, been the principal 
 
 68 125 U. S. Reports, 288. 9 Ibid., 307.
 
 572 HISTORY OF THE SUPREME COURT 
 
 supporter of Matthews' bill in favor of the Texas Pacific 
 Railroad. Even his eulogistic biographer describes his zeal in 
 working for the interests of that railroad. 70 In addition to 
 being the chief and indefatigable pusher of Texas Pacific 
 Railroad measures, Lamar was an extensive railroad stock- 
 holder and a director of the Mississippi Central Railroad. 71 
 
 The Prevailing Corruption. 
 
 A sufficient indication of the corruption used by both the 
 promoters and the antagonists of the Texas Pacific Railroad 
 bill was supplied by the subsequent publication of the cele- 
 brated Colton letters written by Collis P. Huntington to his 
 confidant and one of his partners, General David D. Colton. 
 Scott, of the Pennsylvania Railroad, then controlled the 
 Texas Pacific Railroad project, while Huntington was one 
 of the Central and the Southern Pacific railroads group. 
 These two sets of capitalists came into collision over the divi- 
 sion of the spoils of the Southwest. Both caused bills to be 
 introduced and each sought to corrupt Congress. 
 
 " Scott," wrote Huntington, on January 29, 1876, " is 
 making a terrible effort to pass his bill, and he has many ad- 
 vantages with his railroad running out from Washington in 
 
 70 Mayes' " Lucius Q. C. Lamar, His Life, Times and Speeches, 1825- 
 1893." Mayes tells how Lamar supported the measures for the benefit 
 of that railroad and quotes a laudatory account, written by William 
 Preston King in 1879, which went the rounds of the press: "Senator 
 Lamar has been recognized as the zealous friend of all measures for 
 internal improvements in the South, especially improvements of the 
 levees of the Mississippi and for the Texas Pacific Railroad. He has 
 been a very effective and eloquent champion of this last-named enter- 
 prise." p. 372. 
 
 An examination of the record shows that Lamar made the principal 
 speech for the Texas Pacific Railway. Pointing out that the Northern 
 Pacific Railroad had received about 47,000,000 acres of land, and the 
 Union and the Central Pacific roads 50,000,000 acres, he pleaded that 
 the Texas Pacific should be allowed to retain its land grant of 18,000,000 
 acres. The Congressional Record, Vol. 7, Part 4, Forty-fifth Congress, 
 Second Session, 1878: pp. 3653-3658. 
 
 71 " Poor's Railroad Manual," for 1869-70: p. 18,
 
 UNDER CHIEI? JUSTICfi WAITE 573 
 
 almost every direction, on which he gives Free Passes to 
 everyone who can help him ever so little. It has cost money 
 to fix things, so I know his bill would not pass. I believe 
 with $200,000 we can pass our bill." On March 6, 1876, 
 Huntington wrote that " the Railroad Committee of the House 
 was set up for Scott, and it has been a very difficult matter 
 to switch a majority of the Committee from him, but I think 
 it has been done." 
 
 To one of his associates Huntington wrote further, on 
 November u, 1876, "I am glad to learn that you will send 
 to this office $2,000,000 by the first of January." Hunting- 
 ton, in one of this series of letters, dated December 17, 
 1877, wrote: "Jay Gould went to Washington about two 
 weeks since and I know saw Mitchell, Senator from Oregon. 
 Since which time money has been used very freely in Wash- 
 ington. . . . Gould has large amounts in cash, and he 
 pays it without stint to carry his points." On May 3, 1878, 
 Huntington informed his partners: "The T. and P. (Texas 
 Pacific) folks are working hard on their bill, and say they 
 are sure to pass it, but I do not believe it. They offered one 
 member of Congress $1,000 cash down, $5,000 when the bill 
 was passed, and $10,000 of the bonds when they got them 
 if he would vote for the bill." 72 In the end both groups ob- 
 tained the legislation sought ; and that the Texas Pacific capi- 
 talists eventually succeeded was due greatly to the efforts of 
 Senators Matthews and Lamar. 
 
 As we have seen, Senator Lamar was Matthews' most vig- 
 orous and supple defender during the opposition to Matthews' 
 
 72 The original name of the company was the Texas Pacific ; later it 
 was changed to read Texas and Pacific Railway Company. There were 
 a large number of the Colton letters ; they came to light in a lawsuit 
 arising over the plundering of Colton's estate by Huntington, Stanford 
 and Crocker, and were published in a pamphlet, " Driven From Sea to 
 Sea," by C. C. Post. " It is impossible," reported the Pacific Railroad 
 Commission (Vol. I: 121), "to read the evidence of C. P. Huntington 
 and Leland Stanford and the Colton letters without reaching the con- 
 clusion that very large sums of money have been improperly used in 
 connection with legislation."
 
 574 HISTORY OF THE SUPREME COURT 
 
 confirmation as Associate Justice. First selecting Lamar as 
 Secretary of the Interior, the very office having jurisdiction 
 over railroad land patents President Cleveland had then 
 nominated him to succeed Matthews. Cleveland himself had 
 been a railroad lawyer. Three main objections to the con 1 
 firmation of Lamar's nomination were agitated : his long disuse 
 of legal practice, his want of judicial experience, and his 
 notorious activity as a railroad legislator. It is needless to 
 say that his nomination was confirmed. 
 
 The Railroad Power in Control. 
 
 All except two of the Justices now constituting the Supreme 
 Court of the United States had been active railroad attorneys 
 or railroad stockholders, directors or legislative railroad 
 lobbyists. The Supreme Court as absolutely reflected the 
 dominant section of the capitalist class as it did during the 
 eras of the control by the landed interests and the slave 
 power. 
 
 From 1879 to 1884 the stupendous amount of $3,360,000,- 
 ooo of new railroad securities had been listed. Edward 
 Atkinson, a conservative political economist, testified before 
 the United States Senate (" Cullom ") Committee in 1886, 
 that the railroads formed about one-fifth of the total wealth 
 of the country. As early as 1870 the railroad magnates had 
 begun to form pools for the partition of traffic and to main- 
 tain rates at a certain point. The organization by the rail- 
 road power of the Southwestern Railway Rate Association 
 and, in 1884, f tne Western Freight Association called forth 
 the charge by the middle-class business elements that they were 
 conspiracies to restrain trade and to fix extortionate rates. 
 This was true; but the essence of the situation was that the 
 capitalist system was in a state of transition from the old 
 competitive stage to a newer state of centralized control and 
 operation. Nevertheless, the still powerful middle class sue-
 
 UNDER CHIEF JUSTICE WAITE 575 
 
 ceeded in getting anti-pool and anti-trust laws passed by Con- 
 gress. In this great duel between the two classes everything 
 then depended upon the construction that the Supreme Court 
 of the United States would put upon those laws. 
 
 Dying, Waite is Rushed to the Court Room. 
 
 For a considerable time Chief Justice Waite had suffered 
 from ailments arising from the liver and spleen, complicated 
 with a painful stomach trouble. In March, 1888, he was ob- 
 viously in a sinking condition. But certain cases concerning 
 a great contest over the priority and legality of the Bell Tele- 
 phone patent were to be decided ; and in order that Waite's 
 vote should not be lost the extraordinary step was taken of 
 rushing a dying man to the Supreme Court chambers. 
 
 The principal competitor of the Bell Telephone was the Pan- 
 Electric Telephone Company. This company charged its op- 
 ponents, the Bell Telephone Company, with having resorted to 
 a campaign of bribery by means of money or gifts of stock, 
 in order to get its patent claims, laws, franchises and decisions. 
 On the other hand, the testimony before a Congressional Com- 
 mittee showed that to get the Government officials to move in 
 the courts for the vacating of the Bell patents, large blocks of 
 stock were distributed by the Pan-Electric Telephone Com- 
 pany to influential Representatives and Senators, some of 
 whom became directors of the company. It was also charged 
 that United States Attorney-General Garland, who had the 
 practical power of deciding whether or not suits to vacate the 
 Bell patent should be brought, held $10,000,000 of Pan-Electric 
 stock for which he had not paid a dollar. 73 In fact, a contract 
 was produced before the Congressional Committee proving that 
 on August 4, 1875, the Pan-Electric Company and the Na- 
 
 73 See, House Miscellaneous Documents, Forty-ninth Congress, 1885- 
 86, Vol. XIX. " Testimony taken by the Committee Relating to the 
 Pan-Electric Telephone Company."
 
 576 HISTORY OF THE SUPREME COURT 
 
 tional Improved Telephone Company of Louisiana had agreed 
 in writing that they would begin suit against the American 
 Bell Telephone Company, provided they could obtain the as- 
 sent of the Attorney-General of the United States. 74 
 
 The Telephone Cases Decided. 
 
 There were five actions against the American Bell Tele- 
 phone Company, revolving around the point whether Bell or 
 Dollbear was the inventor of the telephone. When the de- 
 cision favorable to the Bell patent was reached, only eight 
 Justices were on the bench, Lamar not having taken his seat 
 when the long and complicated arguments had been made. Of 
 the eight, Justice Gray refrained from taking part because of 
 interest. This left seven Justices, of whom Waite, Miller, 
 Blatchford and Matthews concurred in a majority opinion fa- 
 vorable to Bell. Bradley, Field and Harlan dissented from 
 some of the conclusions reached by the majority. 75 
 
 " The telephone decision," says a contemporary account, 
 " had been written by the Chief Justice, but he was too ill to 
 read it from the Bench, and that duty was, therefore, performed 
 by Justice Blatchford. Special care was taken that no evidence 
 of the Chief Justice's illness should appear, and none of the 
 throng that heard the decision read suspected the real reason 
 why it was announced by Justice Blatchford. As soon as pos- 
 sible after the reading, Justice Waite left the Bench, and was 
 hurriedly driven home. . . . He went to bed and since then 
 has been a very sick man." 70 
 
 The Chief Justice died on the very day on which this ac- 
 count was published March 23, 1888. He had lived in 
 
 74 Ibid., 574. Isham G. Harris, for many years a United States Sen- 
 ator from Tennessee, was Vice-President of the Pan-Electric Telephone 
 Company. 
 
 75 126 U. S. Reports, 531. 
 
 70 Washington despatch, New York Times, March 23, 1888.
 
 UNDER CHIEF JUSTICE WAITE 577 
 
 rather aristocratic style in Washington. After his death the 
 newspapers reported that his estate was so small that members 
 of the Washington Bar and others deemed it advisable to raise 
 a fund for his widow.
 
 CHAPTER XIV 
 THE SUPREME COURT UNDER CHIEF JUSTICE FULLER 
 
 Following Waite's death, considerable speculation was rife 
 as to who would be appointed his successor. President Cleve- 
 land finally chose Melville W. Fuller, a Chicago lawyer, ob- 
 scure so far as public reputation went and without judicial ex- 
 perience but well and favorably known in corporation circles. 
 Like Cleveland, Fuller was a Democrat, but he was urged for 
 the Chief Justiceship by both Republican and Democratic Sena- 
 tors and capitalists. 
 
 Fuller's Sponsors and Backers. 
 
 Among those particularly active at Washington assiduously 
 working for his appointment was Colonel W. C. Goudy, an 
 attorney for a large number of varied corporations. Goudy 
 was counsel for the South Chicago Railway Company, the 
 Washburn and Moen Manufacturing Company, the Chicago, 
 Burlington and Quincy Railroad, the Illinois Central Railroad, 
 the Indiana Banking Company, the Chicago Dock Company, 
 and he was general counsel for the Chicago and Northwestern 
 Railway Company, for the Fremont and Elkhorn Railroad, and 
 for the Sioux City and Pacific Railroad. 1 
 
 Senator John C. Spooner, of Wisconsin, a Republican, was 
 energetic in Fuller's behalf ; of Spooner's activities as a railroad 
 lawyer we have given an adequate glimpse in the description 
 of the case of Schulenberg vs. Harriman in the preceding chap- 
 ter. The selection of Fuller was also approved by Robert T. 
 
 1 " Poor's Railroad Manual," for 1800: pp. 1297 and 1300. 
 
 578
 
 UNDER CHIEF JUSTICE FULLER 579 
 
 Lincoln, former Secretary of War, and for many years presi- 
 dent of the Pullman Company, of Chicago. Another of the 
 many functionaries strongly pushing Fuller's appointment was 
 the millionaire United States Senator Charles B. Farwell, of 
 Illinois, a partner in the large Chicago dry goods establishment 
 with his brother, John V. Farwell. This house had made great 
 profits on contracts during the Civil War ; by the abundant in- 
 fusion of money into politics Charles B. Farwell had wrested 
 an election to Congress, and then an election as United States 
 Senator. 
 
 A Transaction of the Farwells. 
 
 Aside from their other political and corporate transactions, 
 the Farwells had but recently come conspicuously into public 
 attention by reason of the successive steps by which they had 
 obtained the title to 3,000,000 acres of public land in Texas. 
 
 During the session of the Texas Constitutional Convention, 
 at Austin, on November i, 1875, a clever attempt was made to 
 pass a resolution for the setting apart of 5,000,000 acres 
 of public lands in exchange for the building of a new State 
 Capitol. This resolution was defeated, but on November 20 
 a constitutional provision was finally adopted after much skill- 
 ful lobbying, setting apart 3,000,000 acres for the purpose. 2 
 
 On February 20, 1879, the Texas Legislature passed an act 
 appropriating 3,050,000 acres in the counties of Deaf Smith, 
 Farmer, Castro, Lamb, Bailey, Hockley, Dallain, Hartley, 
 Cochran and Oldham to be turned over to the contractors for 
 the new building. This contract was made on January 18, 
 1882, with Matthew Schnell, of Rock Island, Illinois. In the 
 same month, Schnell assigned his entire interest to Charles B. 
 Farwell, John V. Farwell, Amos C. Babcock and others com- 
 prising the firm of Taylor, Babcock and Company of Chicago. 3 
 
 2 Article XVI, Sec. 57, General Provisions, Constitution of Texas. 
 
 3 " Report of the Capitol Building Commissioners to the Governor of 
 Texas, Jan. i, 1883": p. 31.
 
 580 HISTORY OF THE SUPREME COURT 
 
 When only a small part of the building had been constructed, 
 the State officials leased to the Farwells all of the 3,000,000 
 acres " not yet earned " at six cents an acre per annum. 4 
 The Farwells immediately used it for grazing purposes, at large 
 profit to themselves. 
 
 Instead of using granite the contractors began to construct 
 the building with limestone, whereat public indignation began 
 to manifest itself. 5 Pleading that they could not afford granite 
 the Farwells demurred at being put to more expense, although 
 they were then receiving the 3,000,000 acres in installments as 
 fast as certain parts of the building were constructed. It had 
 been definitely understood and expected that in return for that 
 enormous area of land they would erect a substantial building ; 
 that they were not doing so caused ugly scandal. 
 
 Three Million Acres by the Convict Labor Route. 
 
 At this point, Lacy, Westfall and Norton, owners of a gran- 
 ite quarry in Travis County, Texas, came forward, and in a 
 burst of public spirit offered the Farwells the free use of their 
 granite deposits, provided they would quarry them and build 
 a railroad to the quarry. The Farwells, however, objecting 
 that they did not care to pay the schedule rates of union labor, 
 induced the State officials to give them a supply of convict 
 labor. On July 25, 1885, the State officials contracted with 
 the firm of Taylor, Babcock and Company to furnish that cor- 
 poration with five hundred " able-bodied convicts." In return, 
 all that the contractors had to do was to board, clothe and 
 guard the convicts, and to pay the State sixty-five cents a day 
 for each convict's labor. These convicts were to be used in 
 constructing a railroad to the granite quarries and were also 
 to do the granite and stone work at the quarries necessary for 
 
 4 " Third Biennial Report of the Capitol Building Commission, 1886 " : 
 p. 199. 
 
 5 Ibid., 201.
 
 UNDER CHIEF JUSTICE FULLER 581 
 
 the building. The convicts thus used were to be white, Mexi- 
 can or colored, and were to work ten hours a day. 
 
 Complaints were frequently made that the convicts were 
 wretchedly treated and brutally overworked. But so far as 
 the general public went the charge that made a deeper impres- 
 sion was that the Capitol was flimsily constructed. At a meeting 
 of the State Capitol Board, on September 10, 1888, Attorney- 
 General Hogg introduced a resolution stating that " whereas, 
 for more than a year past many complairlts of a serious nature 
 have been made against the workmanship of the new State 
 Capitol, mostly by private parties, but more recently by General 
 W. P. Hardeman, Superintendent of Public Buildings and 
 Grounds, and they yet continue to be made," etc., etc. Hogg 
 accused the Capitol Commissioners of paying no attention to 
 the charges, and his resolution, therefore, " invited them to re- 
 sign." 7 The commissioners denied the charges and, of course, 
 declined the invitation. 
 
 The cost of constructing the Capitol was stated to be 
 $3,095,000, and the last installment of the 3,000,000 acres was 
 turned over to the Farwells on August 25, i888. 8 A large 
 part of the 3,000,000 acres the Farwells disposed of at an 
 enormous profit; the Farwell family still holds 800,000 acres 
 and have a large ranch house at Channing, which Walter Far- 
 well occupies during the summer, spending the winters in Eng- 
 land. 
 
 Apparently a digression, these details are introduced for the 
 
 6 " Third Biennial Report of the [Texas] Capitol Building Commis- 
 sion," 1886: p. 204. 
 
 7 " Final Report of the Capitol Building Commissioners, 1888 v : p. 32. 
 
 8 Ibid., p. 36. At the time this land was originally granted, its great 
 value for agricultural and grazing purposes was pointed out. Much of 
 it, reported N. L. Norton, Commissioner to survey the lands, in 1883, 
 was wheat-bearing soil of a high degree. " The thousands of prairie 
 dogs met on every hand, and which are never located beyond the con- 
 venient reach of water, undoubtedly attest the fact of a supply under- 
 ground, which may be utilized by mechanical appliances at a moderate 
 cost." " Report of the Capitol Building Commissioners to the Governor 
 of Texas, Jan. i, 1883": p. 61.
 
 582 HISTORY OF THE SUPREME COURT 
 
 purpose of exhibiting a few of the economic interests of some 
 of the men vigorously pushing Fuller for the Chief Justiceship. 
 At the precise time when Se'nator Farwell was urging the ap- 
 pointment he was putting the finishing touches upon the con- 
 summation of the acquisition of the 3,000,000 acres, obtained 
 by the connivance of officials and the exploitation of convict 
 labor. 
 
 Like that of Waite, Fuller's appointment was a complete 
 surprise to the large public ; his name and career were utterly 
 unfamiliar. But to corporations of all kinds his skill and serv- 
 ice had long been intimately known and highly valued. The 
 list of corporations that he had represented as an attorney was 
 an elaborate one. 
 
 Career of the New Chief Justice. 
 
 He was born in Augusta, Maine, in 1833. As a child he 
 was brought up in a legal atmosphere ; his father was a lawyer ; 
 and so were his father's two brothers ; and his mother was a 
 daughter of Nathan Weston, for many years the Chief Justice 
 of the Supreme Court of Maine. Fuller went to Chicago, in 
 1856, and from the first sought the clientage of rich individuals 
 and powerful corporations, dipping somewhat into politics. 
 He was a member, in 1861, of the Illinois State Constitutional 
 Convention; in 1862 he served in the Illinois Legislature, and 
 he was a delegate to the Democratic National Conventions of 
 1864, 1872, 1876 and 1880. 
 
 His corporation practice was so large that only some typical 
 cases of the entire number in which he appeared will be given 
 here. 
 
 He and J. H. Roberts, in 1870, represented Dows, a stock- 
 holder of the Union National Bank of Chicago, in a long- 
 drawn but unsuccessful action to restrain the City of Chicago 
 from levying a tax upon bank stock. 9 Three years later we 
 
 9 XI Wallace's Reports, Supreme Court of the U. S., p. 108.
 
 UNDER CHIEF JUSTICE FULLER 583 
 
 find him arguing for the Merchants' National Bank, but with- 
 out success, that the power of a State to tax stockholders in a 
 national bank did not extend to non-resident stockholders. 10 
 
 At the same time Fuller was counsel for the First National 
 Bank of Springfield ; n for the Commercial Bank of Bristol, 
 R. I., 12 and for other banks. He represented Jesse Hoyt, a 
 large Chicago railroad capitalist, Philip D. Armour, the multi- 
 millionaire Chicago packer, and associates in an action for an 
 injunction to restrain the Chicago, Burlington and Quincy Rail- 
 road from taking up a certain sidetrack. Hoyt owned a three- 
 quarter interest in the " Union Elevator," a large grain ware- 
 house; hence his participation in the action. This contest of 
 millionaire wheat gamblers and monopolists assumed various 
 phases in which Hoyt, Armour and others, although associates, 
 were at times on different sides. 13 Representing the First Na- 
 tional Bank of Chicago, Fuller and two other attorneys sought 
 to prevent that bank from being held responsible for the de- 
 falcation of $114,032.62 of A. W. Waldron, treasurer of the 
 village of Hyde Park. The circumstances of the defalcation 
 were such that the bank, so the lower court decided, could be 
 held liable for nearly $60,000 and interest. But Fuller won 
 the case in the Supreme Court of Illinois. 14 At different times 
 during this period, and often for many successive years he was 
 counsel for the Metropolitan National Bank, the Traders' 
 Bank, the Fourth National Bank, the Manufacturers' Na- 
 tional Bank, the Merchants' National Bank and for extensive 
 estates such as the Walker, the Stephen A. Douglas and 
 others. 
 
 10 XIX Wallace's Reports, 499. Justice Field denied the injunction 
 applied for, Field's ground being that the mere charge that a tax was 
 illegal was not basis enough for an injunction in a suit of equity. 
 Field pointed out that there must be other special circumstances, such 
 as that the tax would produce irreparable injury, etc. 
 
 11 67 Illinois Reports, 298. 
 
 12 68 Ibid., 349. 
 
 13 93 Illinois Reports, 601-613. 
 
 14 101 Illinois Reports, 595-609.
 
 584 HISTORY OF THE SUPREME COURT 
 
 Fuller's Course as Railroad Attorney. 
 
 He was the regular counsel for the Chicago, Burlington and 
 Quincy Railroad. One of the cases pertaining to this railroad 
 in which he appeared, in 1883, is worth citing. 
 
 For six years Samuel Warner had worked for the railroad, 
 first as a brakeman and during the last two years as a freight- 
 train conductor. While uncoupling and detaching a freight 
 car in motion on August 20, 1875, Warner threw himself 
 around the corner of the car, expecting to get a foothold on 
 similar steps on the other side, whence he could have reached 
 the rear of the car where the uncoupling had to be done. But 
 the car was not equipped with any such steps a fact that 
 Warner did not know. The consequence was that Warner 
 lost his balance, was thrown to the track, and his left arm was 
 so crushed and mangled that it had to be amputated. 15 
 
 On the ground that the company was willfully negligent in 
 not providing end steps or ladders for coupling or uncoupling 
 purposes, Warner sued for damages. He was awarded $5,000 
 damages in the lower court; this judgment was sustained by 
 the Appellate Court. The company appealed to the Illinois 
 Supreme Court; meanwhile six years had gone by without 
 Warner receiving a cent. 
 
 Fuller appeared for the railroad company in the Illinois 
 Supreme Court, arguing for a reversal of the verdict. Aston- 
 ishingly contradictory and pettifogging as they may seem, these 
 were actually the points that he advanced : First, there was 
 no evidence that the loss of Warner's arm did, or would, im- 
 pair his ability to pursue his business. Second, there was no 
 evidence of the extent of the pain that Warner had suffered, 
 other than the loss of his arm ; pain, as an element of damage, 
 could not be inferred from this fact. Third, there was no evi- 
 
 15 Case of Chicago, Burlington and Quincy Railroad vs. Samuel War- 
 ner, 108 Illinois Reports, 544.
 
 UNDER CHIEF JUSTICE FULLER 585 
 
 dence of damages none of nurses' bills incurred, or of any 
 other expense. 16 
 
 So far as the railroad workers were concerned, Fuller argued 
 that " the master is not bound to throw away his machinery be- 
 cause there may be others better calculated to insure safety." 
 In other words, railroad corporations could ignore the safety of 
 the lives of their workers, which is precisely what they were 
 doing. An enormous number of railroad employes were being 
 killed or maimed annually. Although the railroad corporations 
 were making vast profits, they were contesting every attempt 
 to pass an employers' liability law, and especially a law com- 
 pelling them to equip their cars with safety appliances. In re- 
 spect to the liability of railroad companies to passengers, Ful- 
 ler argued, the rule was different. Warner, he contended, 
 knew that the company used cars without steps or handle, and 
 before attempting to uncouple he should have ascertained 
 whether the car had them or not. 
 
 But it must be said that Fuller did not state the real facts, 
 nor apply common-sense logic. If Warner had refused to 
 work on such dangerous cars he would have been without a job 
 and support, and if all other workers had similarly refused, 
 the railroad could not have been operated. At the peril of their 
 lives, the workers were really doing a favor to the company 
 working on its cars. 
 
 Justice Mulkey agreed with Fuller that the risk was one of 
 voluntary assumption. Of Fuller's other pleadings he strongly 
 disapproved. 
 
 Ironical as it may seem, the fact remains that Mulkey pro- 
 ceeded to argue gravely whether the mangling of an arm, and 
 its consequent amputation, constituted evidence of pain. He 
 decided solemnly that it did. Justice Mulkey then went on to 
 controvert Fuller's fiction that the loss of an arm did not im- 
 pair Warner's ability to earn his living. The fact that he was 
 
 i Ibid., 540-541,
 
 586 HISTORY OF THE SUPREME COURT 
 
 forced to abandon his job, Mulkey said, was in evidence before 
 the jury. " That both arms," he commented, " are useful in 
 all, and indispensable in most, of the avocations of life is but a 
 part of the common information of mankind in general, and 
 hence it required no 'other proof to establish it. . . ." But, 
 so the court decided, Warner had voluntarily assumed the risk ; 
 therefore, he was negligent; therefore, the judgment in his fa- 
 vor should be reversed, and he must get no damages. 17 Warner 
 was consigned to a life of destitution ; Fuller at this time was 
 enjoying an annual income of at least $20,000. In fact, Fuller, 
 it was said, was a stockholder in the Chicago, Burlington and 
 Quincy Railroad. 
 
 A Multimillionaire's Attorney. 
 
 Two Chicago multimillionaires Marshall Field and Levi 
 Z. Leiter quarreled over a party wall, which difference grew 
 into an extended litigation. As one of Field's attorneys Fuller 
 eventually won the case. 18 Field was a conspicuous railroad 
 stockholder ; he was a powerful factor in the Chicago, Rock 
 Island and Pacific Railroad and other railroads; 19 his will re- 
 vealed that he also owned $1,500,000 of Baltimore and Ohio 
 Railroad stock, $600,000 of Atchison, Topeka and Santa Fe 
 Railroad stock; $1,860,000 in stock in the Chicago and North- 
 western Railroad, and tens of millions of dollars of stock in 
 fourteen other railroads. 
 
 Field was, likewise, one of the largest stockholders in the 
 Union Traction Company and its associated street railway com- 
 
 17 108 Illinois Reports, 538-555. (Jan., 1884.) On the Illinois Su- 
 preme Court Bench at this time were also Justices Sheldon, Schofield, 
 Dickey, Scott and Craig, nearly all of whom had been railroad attor- 
 neys. For example, Schofield had been attorney for the St. Louis, 
 Vandalia and Terre Haute Railroad at the time of his election to the 
 Illinois Supreme Court (67 Illinois Reports, 608, etc.), of which court 
 he later became Chief Justice. 
 
 18 n8 Illinois Reports, 17. 
 
 19 " Poor's Railroad Manual " for 1890: p. 1097, etc.
 
 UNDER CHIEF JUSTICE FULLER 587 
 
 panics of Chicago. 20 The methods by which these companies 
 obtained their franchises and controlled Common Council and 
 Legislature were consistently corrupt ; the sums spent in pur- 
 chasing ordinances and legislation were immense. 21 And it 
 may be remarked here that although for more than twenty 
 years from 1865 committees of Chicago citizens were formed 
 time after time to fight this corrupt legislation, Fuller was never 
 one of their number. Other lawyers enlisted, but Fuller was 
 preoccupied advancing the interests of the very capitalists 
 against whom these movements were conducted. 
 
 Field was also in almost absolute control of the Pullman 
 Company works by reason of his being the largest owner of 
 stock in that concern. Manufacturing Pullman cars, and em- 
 ploying nearly 20,000 men, the Pullman was a vast corporation, 
 reaping great profits. The trickeries, snares, fraudulent sales 
 and cheatings by which it was alleged the land on which the 
 works were located was originally gotten, were set forth in 
 detail in the suit brought by Speck and others. 22 We have 
 seen how Robert T. Lincoln, president of the Pullman Com- 
 pany, was one of Fuller's most active backers for the Chief 
 Justiceship of the Supreme Court a fact intimately related, 
 as we shall show later, to a certain notable decision of the Su- 
 preme Court of the United States when Fuller was Chief Jus- 
 tice. 
 
 Marshall Field, at his death, left a fortune estimated at 
 $140,000,000. It was then discovered that for many years he 
 had owned at least $17,500,000 of taxable personal property 
 on which he had long defrauded the city of taxes. Suit was 
 
 20 Norton's " Chicago Traction," p. 142. 
 
 21 See, Ibid, in which this long-prevailing corruption is described. 
 
 22 See, Case of Speck et al. vs. Pullman Palace Car Company, 121 
 Illinois Reports, 34. (May, 1887.) The complaint recited that the 
 lands were originally owned by Charles Dunn, who had died in 1869, 
 and that his widow was defrauded out of the property by deceit, the 
 trickery of lawyers and fraudulent sale. Justice Schpfield (who, as 
 has been noted, had been a railroad lawyer) decided in favor of the 
 Pullman Company.
 
 588 HISTORY OF THE SUPREME COURT 
 
 brought for $1,700,000 back taxes, but on March 2, 1908, the 
 Field estate compromised by paying the city $i,ooo,ooo. 23 
 It was calculated that the total amount of Field's tax frauds 
 reached fully $3,000,000. 
 
 Fuller's Further Corporation Practice. 
 
 Fuller was one of the leading counsel for the Chicago Gas- 
 light and Coke Company in its legal contest with the People's 
 Gaslight and Coke Company. Both of these companies had 
 debauched the Common Council and Legislature to get their 
 franchises. The Chicago Gaslight and Coke Company had 
 secured, in 1849, an exclusive franchise for ten years. In 1855 
 the People's Gaslight and Coke Company obtained a franchise 
 from the Legislature on the plea that it sought to break the 
 monopoly held by that company. But in 1862 both companies 
 formed a combination, and the Chicago Gaslight and Coke Com- 
 pany agreed, for the period of one hundred years, not to lay 
 pipes or sell gas in the territory of the other company. This 
 pool, of course, created a monopoly. 
 
 The compact continued until 1886, when the Chicago Gas- 
 light and Coke Company secured a franchise to build a tunnel 
 under the South branch of the Chicago River. Pleading that 
 the Chicago Gaslight and Coke Company threatened to com- 
 pete and violate its contract, the People's Company applied for 
 an injunction, and obtained it in the Appellate Court. In the 
 Illinois Supreme Court, Fuller, on appeal, argued that a con- 
 tract to control rates was void. Judge Magrtider, in 1887, de- 
 cided that the court would not aid either party in the enforce- 
 ment of such an illegal contract. The injunction was dis- 
 solved. 24 
 
 23 On that date a check for the amount was delivered to John R. 
 Thompson, treasurer of Cook County. The Field estate decided to 
 compromise before the action went to trial. 
 
 24 121 Illinois Reports, 532-542. Seventeen years later, Fuller, as 
 Chief Justice of the Supreme Court of the United States, delivered
 
 UNDER CHIEF JUSTICE FULLER 589 
 
 These, perhaps, are sufficient examples of Fuller's practice. 
 He was one of the busiest and best-paid corporation attorneys 
 in Chicago ; it was estimated that in thirty-two years he had 
 probably tried not less than twenty-five hundred cases, not in- 
 cluding cases settled out of court. 
 
 One of the exceptions to his long list of pleadings for indi- 
 vidual capitalists or large corporations was his being retained 
 by the City of Chicago in the suit of the State against the 
 Illinois Central Railroad. This company had assumed to own, 
 since the year 1869, not less than a thousand acres of formerly 
 submerged lands along the city front of Lake Michigan, on 
 portions of which it had built wharves, docks, piers and ware- 
 houses. The act under which this claim Was set up had been 
 originally obtained by corruption. In 1873 tne Legislature 
 passed a repealing act. When the State brought suit charging 
 unlawful possession and usurpation, the railroad claimed that 
 the repealing act was unconstitutional, as impairing the obliga- 
 tion of a contract. The Circuit Court of the United States, 
 however, decided that the title remained vested in the city. 25 
 This decision was upheld by the Supreme Court of the United 
 States. 20 
 
 Before considering some of the important decisions of the 
 Supreme Court of the United States under Chief Justice Ful- 
 ler, it will be advisable to describe certain circumstances, and 
 to give a review of the careers of new Justices successively ap- 
 pointed after he assumed his seat. 
 
 that court's decision refusing an application of the People's Gaslight 
 and Coke Company for an injunction to restrain the City of Chicago 
 from enforcing an ordinance limiting gas rates to seventy-five cents per 
 thousand feet. 194 U. S. Reports, 7. 
 
 25 33 Federal Reports, 721, and Ibid., 732. 
 
 20 By a bare majority vote of four to three. (146 U. S. Reports, 455.) 
 The ground of the decision was that the legislature held the title to 
 submerged lands under navigable waters in trust, and could not alienate 
 those lands except in such small parcels as public interest might require. 
 Justice Field wrote the court's opinion; it was a commendably credita- 
 ble decision for Field.
 
 59O HISTORY OF THE SUPREME COURT 
 
 Justice Field's Enemy, Terry, Shot and Killed. 
 
 Justice Field, who seems to have been oppressed by the un- 
 fortunate faculty of personally stirring adverse public criticism, 
 again came sharply into public notice at this juncture. Judge 
 Terry, of whom we have spoken in a previous chapter, had 
 acted as counsel to Sarah Althea Hill, who claimed that she had 
 been secretly married to Senator William Sharon, a Nevada 
 and California millionaire mine owner. When he died she 
 married Judge Terry and claimed Sharon's estate. The Su- 
 preme Court of California decided that there had been a secret 
 marriage contract. But in the United States Circuit Court 
 Justice Field ordered the cancellation of the marriage contract 
 on the ground of forgery. In a burst of rage Mrs. Terry 
 arose in court and asked Field how much he had been paid for 
 his decision. Field held her for contempt. 
 
 The old enmity, or rather feud, between Terry and Field 
 now gathered fresh fuel. It was reported (although whether 
 falsely or not, we do not know) that when Field committed 
 Mrs. Terry to jail for a month, Terry drew a bowie knife. At 
 any rate, Field ordered Terry arrested and committed to jail 
 for six months. 
 
 On the way north from Los Angeles, on his circuit duties, 
 Justice Field, on the morning of August 14, 1889, stopped at 
 Lathrop, California, for his breakfast. Mr. and Mrs. Terry 
 were there at the time. Terry stepped up to the luncheon stool 
 on which Field sat and slapped his face with the back of his 
 hand. United States Marshall David Nagle then shot Terry 
 dead. Terry was unarmed, but reports had it that Mrs. Terry 
 had a bowie knife and revolver in her hand bag. 
 
 Opinion over the affair was divided. Some defenders of 
 Field held that it was a justifiable case of self -protection. 
 Friends of Field asserted that Terry had sworn that he would 
 take Field's life. A considerable section of public opinion con- 
 demned the killing as unmitigated murder. Justice Field was
 
 UNDER CHIEF JUSTICE FULLER 59! 
 
 arrested, but released. As for Nagle, he was exonerated by 
 the courts on the ground that he had done his duty in preserving 
 the life of a judge. 
 
 Field's Nephew, Brewer, Appointed. 
 
 Four months after this killing, Field's nephew, David J. 
 Brewer, was appointed an Associate Justice of the Supreme 
 Court of the United States. 
 
 Brewer was the son of a missionary to Turkey ; he had been 
 graduated from Yale, in 1856; had been a United States Com- 
 missioner in Kansas ; a judge of the probate and criminal court 
 in that State from 1861 to 1865 ; a member of the Kansas Su- 
 preme Court from 1870 to 1884, and, in the latter year, had 
 been appointed a judge of the United States Circuit Court. 
 According to the bare newspaper reports, Brewer, when nom- 
 inated for the Supreme Court of the United States, was sub- 
 jected to serious criticism of his conduct in the appointment 
 of receivers for the Wabash railroad system, and for some 
 decisions he had rendered concerning the receivership. It was 
 a fact that Judge Gresham, who was an incorruptible judge 
 and who had exposed Gould's fraudulent manipulation of the 
 Wabash railroad, removed receivers whom Gould and Sage 
 had caused to be appointed, and caustically denounced the trans- 
 action. 27 Brewer's friends explained that the responsibility 
 was to be charged not to him, but to Judge Treat. 
 
 Justice Brown's Corporate Connections. 
 
 The next appointee to the Supreme Court was Henry B. 
 Brown of Detroit, Michigan. He was born in Lee, Massa- 
 
 27 See a detailed account in the North American Reviezv, issue of 
 February, 1888. Gould and Sage, after looting the railroad of millions 
 of dollars, had thrown it into bankruptcy, and caused the appointment 
 of Humphreys and Tutt, two of its former directors and officers who 
 had been part of the directorate that brought the system to bankruptcy.
 
 592 HISTORY OF THE SUPREME COURT 
 
 chusetts; his father was a manufacturer. After leaving Yale 
 he went, in 1859, to Detroit. From 1861, when he was ap- 
 pointed a deputy United States marshall, he held various pub- 
 lic offices was Assistant United States District Attorney, and 
 judge of the Wayne County (Mich.) Court. In 1864 he mar- 
 ried Caroline Pitts, the daughter of a rich lumberman, and 
 later returned to the practice of law, forming a partnership 
 with J. S. Newberry and Ashley Pond. 
 
 The firm of Newberry and Pond had represented the Am- 
 boy, Lansing and Traverse Bay Railroad, the Detroit and Mil- 
 waukee Railroad and other railroads and copper-mining and 
 insurance companies. 28 During the time that Brown was a 
 member of the firm of Newberry, Pond and Brown, the firm 
 was counsel for the Atlas Mining Company, and Pond ap- 
 peared for the Marquette and Ontonagan Railroad and other 
 corporations. 29 
 
 The firm then became Pond and Brown. From 1873 to 
 1875 it represented such corporations as the Michigan State 
 Insurance Company, the Port Huron Dock Company, the Con- 
 necticut Mutual Life Insurance Company and the Lake Su- 
 perior Ship Canal, Railroad and Iron Company. 30 This last- 
 named company had obtained from Congress, in 1865-1866, a 
 grant of 400,000 acres of swamp lands as assistance in encour- 
 aging the building of its canals. But the company caused 
 fraudulent surveys to be made by which it secured vast beds of 
 iron ore. In his annual report for 1885, Commissioner Sparks 
 of the General Land Office, described how its " canal " was only 
 a worthless ditch, and how instead of surveying swamp lands, 
 it had fraudulently appropriated at least 100,000 acres of the 
 richest mineral lands. 31 The suit in question was brought by 
 
 28 XIII Michigan Reports, 382 and 440; XIX Ibid., 393 and 430; 
 XXIII Ibid., 1 88; 'etc. 
 
 29 XIII Ibid., 37, and XXVIII Ibid., 290, etc. 
 
 30 XXX Ibid., 39; XXXI Ibid., 7; XXXII Ibid., 235. 
 81 House Executive Documents, 1885-1886, Vol. II.
 
 UNDER CHIEF JUSTICE FULLER 593 
 
 the Attorney-General of Michigan on the score of usurpation 
 and alleged illegal collection of tolls. The company won. 
 
 In 1875 President Grant appointed Brown a United States 
 District Court judge in Michigan. Ashley Pond continued his 
 practice as a railroad lawyer ; he became general counsel for 
 the Michigan Central Railroad a Vanderbilt property. 32 
 Brown went on the Bench of the Supreme Court of the United 
 States, on December 29, 1890, succeeding Justice Miller. 
 
 Justice Brown's Interest in a Copper Case. 
 
 In addition to being a corporation attorney, Brown was a 
 stockholder. In the case of the appeal of the Detroit Citizens 
 Street Railway Company vs. Detroit which came up before 
 the Supreme Court of the United States, in 1895, " Mr. Justice 
 Brown took no part in the consideration and determination 
 of this petition." 33 Justice Brown was more specific in a case 
 against the Calumet and Hecla Mining Company ; he frankly 
 caused it to be inserted in the record that, " Mr. Justice Brown 
 being interested in the result, did not sit in this case and took 
 no part in its decision." 34 
 
 The copper mines of the Calumet and Hecla Mining Com- 
 pany, in Hough ton County, Michigan, have been rated as 
 among the richest copper properties in the world. They were 
 obtained in this way: In 1852 the St. Mary's Falls Ship Canal 
 Company secured from Congress a grant of 750,000 acres of 
 public lands for aid in the construction of a canal. A year 
 previously in 1851 a voluminous report had been issued 
 by J. W. Foster and J. D. Whitney, Government geologists, 
 giving full reports of the character of the mineral deposits in 
 
 32 " Poor's Railroad Manual" for 1800: p. 1327; IV Supreme Court 
 Reporter, 369, etc. 
 
 33 163 United States Reports, 683. 
 
 34 Case of Chandler vs. Calumet and Hecla Mining Company, 149 
 U. S. Reports, 79-95.
 
 594 HISTORY OF THE SUPREME COURT 
 
 the Lake Superior region. 35 Long before that time it was 
 well known that Lake Superior Indians used copper utensils 
 made by them from native ore. 
 
 Now the grants made by Congress to canal companies meant 
 to cover swamp lands. But by fraudulent surveys they were 
 so manipulated as to comprise the most valuable ore beds. 38 
 This fact is not only stated in official reports, but it was made 
 the basis of the suit brought by Chandler against the Calumet 
 and Hecla Mining Company. In his bill of complaint, Chand- 
 ler detailed the granting of the alleged " swamp " lands by Con- 
 gress, and claimed an interest. The decision of the Supreme 
 Court of the United States went against him. 
 
 That he tried so hard to establish his claim is not surprising 
 considering the enormous profits that the company was making. 
 For example, Moody thus describes its operations for a cer- 
 tain number of years : " Capital stock, $2,500,000. Par $25, 
 on which only $12 per share has been paid. Dividends for the 
 year ended April 30, 1895, 60 per cent., 1896, 100 per cent. ; 
 1897, 120 per cent.; 1898, 160 per cent.; 1899, 280 per 
 cent.; 1900, 320 per cent.; 1901, 260 per cent.; 1902, 100 per 
 cent. ; 1903, 140 per cent." 3T When Quincy A. Shaw, presi- 
 dent of the Calumet and Hecla Mining Company, died in 1910, 
 his will filed for probate at Boston, on December 9, 1910, dis- 
 closed an estate of $23,000,000 
 
 Justice Shiras, Railroad Lawyer. 
 
 George Shiras, Jr., was next appointed to the Supreme 
 Court of the United States, July 19, 1892, by President Har- 
 rison to succeed Justice Bradley. 38 His father was a Pittsburg 
 
 35 U. S. Senate Documents, Special Sessjon, Thirty-second Congress, 
 1851, Vol. Ill, Doc. No. 4. 
 
 36 See, Annual Report for 1885, of Commissioner Sparks, of the Gen- 
 eral Land Office, House Ex. Docs., 1885-1886, Vol. II. 
 
 37 John Moody's " The Truth About The Trusts," p. 39. 
 
 38 From the New York World, of January 23, 1892: "Justice Brad-
 
 UNDER CHIEF JUSTICE FULLER 595 
 
 brewer who had retired from business in 1840. Practising 
 law in that city from 1856 to the time of his appointment, 
 George Shiras, Jr.'s connections were with large corporations. 
 For twenty years he was associated with the Baltimore and 
 Ohio Railroad in important cases, and he represented the Peo- 
 ple's Gas Company and other corporations. From 1881 to 
 1883 his partner was Henry H. Hoyt, who later became director 
 of various powerful banks. During a deadlock of the Penn- 
 sylvania Legislature over the election of a United States Sena- 
 tor, in 1881, Shiras "was nominated at a secret caucus of Re- 
 publicans by a majority of two, but two days later the vote 
 was reconsidered, and John J. Mitchell was elected. 
 
 Shiras frequently appeared in the courts as the regular 
 counsel for the Pittsburg and Connellsville Railroad Company 
 a part of the Baltimore and Ohio Railroad system. 89 In 
 the case of the Commonwealth of Pennsylvania vs. the Pitts- 
 burg and Connellsville Railroad Company, he, Latrobe and 
 other attorneys for the railroad argued, in 1868, against an 
 action for the forfeiture of the company's franchise. 40 
 
 McClurg, a passenger, having obtained a judgment for in- 
 juries, Shiras had the verdict reversed on appeal. 41 Elijah 
 Patterson, a freight-train conductor, had notified the superin- 
 tendent of the bad construction of a sidetrack connection ; the 
 superintendent promised it would be repaired, but it was never 
 attended to. A train on which Patterson was conductor was 
 later derailed and Patterson was severely injured. The suc- 
 cessful defense of the railroad in the lower court was that 
 Patterson knew of the danger and had voluntarily exposed him- 
 
 ley was, perhaps, the richest member of the Bench, and leaves a fortune 
 of at least $1,000,000." Other newspaper estimates placed Bradley's 
 wealth at from $500,000 to $700,000. 
 
 39 See, 56 Pa. State Reports, 295 (year 1867) ; 58 Ibid., 41 ; 76 Ibid., 
 392, 489 and 513; 77 Ibid., 183; 81 Ibid., in, etc., etc.. 
 
 40 59 Ibid., 435. 
 
 41 56 Pa. State Reports, 295.
 
 596 HISTORY OF THE SUPREME COURT 
 
 self. Patterson appealed to the Supreme Court of Pennsylva- 
 nia. There Shiras advanced the proposition that " where per- 
 sons are employed in the same general service, and one of 
 them is injured through the carelessness of another, the em- 
 ployer is not responsible." The Supreme Court of Pennsylva- 
 nia, in 1875, decided in favor of Patterson. 42 
 
 Shiras also represented James M. Bailey, a director of the 
 Pittsburg and Connellsville Gas, Coal and Coke Company; 
 Shiras was also one of the counsel for the Pittsburg, Virginia 
 and Charlestown Railway Company, for the Monongahela Na- 
 tional Bank and sundry other corporations. 43 When appointed 
 to the Supreme Court of the United States Shiras had an an- 
 nual income from his practice of (it was estimated) not less 
 than $50,000 a year, and possibly $75,000. The city of Pitts- 
 burg was in the grip of the notoriously corrupt Magee political- 
 capitalist ring, but Shiras took no part in movements antagonis- 
 tic to Magee ; he assiduously adhered to his corporation 
 practice ; and some of the very corporations represented by him 
 were foremost in bribing Common Council and Legislature and 
 debauching politicians generally. 44 
 
 42 76 Pa. State Reports, 392. 
 
 43 69 Ibid., 338; 80 Ibid., 35; IV Supreme Court Reporter (Supreme 
 Court of the U. S.), 336, etc. 
 
 44 " The railroads," relates Lincoln Steffens, " began the corruption 
 of the city," and he then proceeds to describe the development and 
 extent of that corruption. (See, "Pittsburg: A City Ashamed" in 
 "The Shame of the Cities," 149-189.) Magee's railways, combined into 
 the Consolidated Traction Company, were capitalized at $30,000,000. 
 The extensive " graft " investigation at Pittsburg, in March, 1910, re- 
 vealed that the officers of the Second National Bank, the Farmers' 
 Deposit National Bank, the Columbia National Bank and other large 
 banks had bribed city officials to favor them as depositories of city 
 funds. The railroads, it was disclosed, had heavily and continuously 
 bribed members of the Common Council by means (to a considerable 
 extent) of free transportation passes, which the Aldermen then sold 
 at a large profit to themselves. The ramifications of corruption brought 
 out by this investigation were enormous. Two score of men who had 
 been or who were members of the City Council were indicted, and a 
 number of those inculpated confessed.
 
 UNDER CHIEF JUSTICE FULLER 597 
 
 Jackson Succeeds Lamar. 
 
 At Justice Lamar's death, in 1893, President Harrison ap- 
 pointed Howell E. Jackson, of Tennessee, to succeed him. 
 Jackson had been associated with railroads before the Civil 
 War. In the winter of 1857-1858 he had been sent to New 
 York by the Mississippi Central Railroad (later the Chicago, 
 St. Louis and New Orleans Railroad) to negotiate its bonds. 
 This he did satisfactorily. After the Civil War he settled at 
 Memphis, Tennessee, becoming a member of the firm of Estes, 
 Jackson and Elliott. 
 
 The clients of this firm were mostly large banks and other 
 corporations. 45 In 1874, a year after the death of his first 
 wife, Jackson married Mary Elizabeth Harding, a daughter 
 of General W. G. Harding, owner of the renowned Belle 
 Meade Farm. It was currently reported in the newspapers 
 that Jackson's election as United States Senator, in 1881, was 
 accomplished by the use of money, but of this charge there is 
 no definite proof in the records. Howell E. Jackson, next to 
 his brother, was reputed to be the richest man in Tennessee. 
 President Cleveland appointed him, in 1887, to the United 
 States Circuit Court. An examination of his decisions shows 
 that they were uniformly favorable to corporations. 
 
 A fact commented upon was that the chief proposer and 
 pusher of Jackson for the Supreme Court was Thomas C. 
 Platt, the Republican boss of New York State, and that the 
 plant of the Tennessee Coal and Iron Company, 40 of which 
 Platt was president, was located in the circuit in which Jackson 
 sat, and in which he had handed down decisions favorable to 
 that corporation. Doubtless the additional fact that Jackson 
 
 45 See, Heiskell's Tennessee Reports, Vols. IX, X, etc., etc. ; Caldwell's 
 Reports, Vol. IV, etc. 
 
 40 This corporation was an extremely large one. It owned its own 
 sources of iron ore and coal supply, estimated, in 1907, at from 500,- 
 000,000 to 700,000,000 tons of iron ore and two billion tons of coal. It 
 is now a constituent part of the Steel Trust.
 
 598 HISTORY OF THE SUPREME COURT 
 
 was a personal friend of President Harrison had its weight in 
 determining his appointment to the Supreme Court of the 
 United States. 
 
 Here for urgent and appropriate reasons that will explain 
 themselves, it will be necessary to defer describing further ap- 
 pointments, and to begin the narrative of some of the decisions 
 of the Supreme Court under Chief Justice Fuller. 
 
 The Timber Monopoly. 
 
 Decisions favoring railroads were so common that a descrip- 
 tion of them would entail an interminable mass of detail. A 
 typical case, deserving adequate treatment, was a particularly 
 remarkable decision by which the Supreme Court deliberately 
 turned over to a group of railroad-lumber syndicate capitalists 
 vast holdings of standing timber, thus directly making possible 
 the concentration of the timber supply in a monopoly closely 
 controlled by a few men. 
 
 Recently a report issued by Herbert Knox Smith, United 
 States Commissioner of Corporations, comprehensively de- 
 scribed this monopoly and its workings. ". . . Only forty 
 years ago," the report stated, " at least three-fourths of the 
 timber now standing was (it was estimated) publicly owned. 
 Now about four-fifths of it is privately owned. The great 
 bulk of it passed from Government to private hands through 
 (a) enormous railroad, canal and wagon-road grants by the 
 Federal Government ; (b) direct government sales in unlimited 
 quantities at $1.25 an acre; (c) certain public land laws, great 
 tracts being assembled in spite of the legal requirements for 
 small holdings. . . ." Elsewhere the report says: "In 
 the last forty years concentration has so proceeded that 195 
 holders, many interrelated, have now practically one-half the 
 privately owned timber in the investigation area (which con- 
 tains eighty per cent, of the whole). This formidable process
 
 UNDER CHIEF JUSTICE FULLER 599 
 
 of concentration, in timber and in land, certainly involves grave 
 future possibilities of impregnable monopolistic conditions, 
 whose far-reaching consequences to society it is now difficult 
 to anticipate fully, or to overestimate. . . ." * 7 
 
 This report, while thorough and authentic within its pre- 
 scribed limits, omits the important fact that it was decisions 
 of the Supreme Court of the United States which were largely 
 responsible for these conditions. One of these decisions and 
 its antecedent and later circumstances were as follows : 
 
 The Military Wagon-Road Grants. 
 
 Congress, on February 25, 1867, had passed an act granting 
 about 600,000 acres to the Dallas Military Road Company as 
 aid in the construction of a military wagon road from Dallas 
 City on the Columbia River, to Fort Boise, on the Snake River, 
 Idaho. Congress had granted other tracts to other wagon-road 
 companies ; the total grants to all of the companies were about 
 1,781,000 acres. These areas comprised the finest timber lands 
 in the Northwest. The Willamette Valley and Cascade Moun- 
 tain Wagon Road Company obtained patents for some 440,000 
 acres. One of these acts granting an area fraudulently ex- 
 tended to about 720,000 acres to the Oregon Central Military 
 Road Company, was passed on July 2, 1864, at the identical 
 time when, as we have seen, the Union Pacific Railway Com- 
 pany was distributing $436,000 in bribes to get its land grant 
 increased and its charter altered. 
 
 The act of Congress of July 8, 1866, provided, however, that 
 if certain military wagon roads were not completed in five 
 years, the grants were to be forfeited, and revert to the Gov- 
 ernment. 
 
 47 " Summary of Report of the Commissioner of Corporations on the 
 Lumber Industry, Part I, Standing Timber" (Feb. 13, 1911) : pp. 3 
 and 8.
 
 600 HISTORY OF THE SUPREME COURT 
 
 Manipulation of the Grants. 
 
 None of these companies made the slightest attempts to build 
 the roads. In order to .fortify themselves against any possi- 
 bility of forfeiture of land grants, they immediately began to 
 sell or mortgage the grants to " innocent parties." That they 
 had not earned the grants and that they were selling domains 
 which they held conditionally only did not trouble them in the 
 least. Familiar with many successive precedents set by the 
 Supreme Court of the United States from the time of Chief 
 Justice Marshall, they knew that if action for forfeiture were 
 brought against them on the ground of non-performance and 
 fraud, the " innocent purchasers " could step in, and plead that 
 they knew nothing of any frauds and had bought in good faith. 
 
 By collusion with officials, the companies obtained title, and 
 then proceeded to sell or mortgage the lands. For the sum of 
 $125,000 (at least, it was so claimed) the Dallas Military Road 
 Company sold its land grant to Edward Martin, who later dis- 
 posed of it to the Eastern Oregon Land Company. The Ore- 
 gon Central Military Road Company conveyed its land grant in 
 bulk to the California and Oregon Land Company. The Wil- 
 lamette and Cascade Mountain Wagon Road Company trans- 
 ferred its interest to the Oregon Pacific Railroad Company and 
 others, and gave a mortgage to the Farmers' Loan and Trust 
 Company of New York. 
 
 The Fraudulent Methods Disclosed. 
 
 The people of Oregon were aroused over this bold appropria- 
 tion of more than a million acres of the most valuable timber 
 lands. They denounced it as a barefaced theft, which it was, 
 in truth; the roads had never been constructed. Many years 
 of forcible agitation were required to get the Oregon Legisla- 
 ture to take some action. Successive legislatures were con- 
 trolled by the land-grabbing syndicate, At last, in 1885, the.
 
 UNDER CHIEF JUSTICE FULLER 6oi 
 
 Oregon Legislature did move. It recited the frauds commit- 
 ted, and memorialized Congress to pass an act for the institu- 
 tion of proceedings for the forfeiture of the grants. This Con- 
 gress did on March 2, 1889. 
 
 The Government then brought suits against the Dallas Mili- 
 tary Road Company, the Oregon Central Road Company, the 
 Willamette and Cascade Mountain Company and others. 
 
 The Government alleged as to the Dallas Company : " That 
 the road was never constructed in whole, or in part ; that 
 through the fraudulent representations of the officers, stock- 
 holders and agents of the company, the Governor o Oregon 
 [George L. Woods] was deceived and induced to issue a cer- 
 tificate . . . and that relying upon this certificate, the pat- 
 ents to portions of the lands had been issued to the com- 
 pany. . . ." 48 
 
 In the case of the Oregon Central Military Road Company, 
 the Government set forth that by the same fraud and deceit, 
 it had obtained a certificate from Governor Addison C. Gibbs, 
 in 1866, that portions of the road had been built. The Gov- 
 ernment's bill of complaint went on to say " that it was not 
 true that the [first] fifty miles of road had been constructed; 
 that in order to procure the certificate . . . the company 
 fraudulently pointed out to the governor a county road to 
 which the company never had a legal right, and led the gov- 
 ernor to believe that the road had been constructed by the com- 
 pany. . . ," 49 
 
 Concerning the manner in which flic Willamette Company 
 had secured its lands the Government charged that the com- 
 pany " fraudulently represented to the acting governor of Ore- 
 gon that the road had been constructed as required by law for a 
 distance of 180 miles, they knowing that such representations 
 were false, and that the road had never been constructed at all ; 
 that such representations were made for the purpose of fraudu- 
 lently procuring from the acting governor a certificate . . . ; 
 
 48 41 Federal Reports, 494. 49 Ibid., 619.
 
 6O2 HISTORY OF THE SUPREME COURT 
 
 that the acting governor did not examine, or cause to be ex- 
 amined, any part of the 180 miles," etc., etc. 50 
 
 These cases originally came up before Judge Lorenzo Saw- 
 yer, in 1890, in the United States Circuit Court, in Oregon. 
 As we have noted, Judge Sawyer was regarded with great 
 friendliness by the Pacific railroad interests. Judge Sawyer 
 ignored the charges of fraud. He took the formal ground 
 that the Governor of Oregon was the agent of the United 
 States, and that when he certified that the roads had been built 
 he was the sole deciding authority and his certificate was to- 
 be accepted as final evidence. Anyway, Judge Sawyer said, 
 the claims put forward by the Government were stale. 51 
 
 The Supreme Court Validates the Frauds. 
 
 The action now went up to the Supreme Court of the United 
 States. The old subterfuge of the " innocent purchaser " was 
 now again pleaded, and successfully. Justice Brewer wrote 
 the decisions covering these associated cases. On March 6, 
 1893, Brewer decided against the United States. The pur- 
 chasers from the original companies, he said, " knew nothing 
 wrong in respect to the title, or the proceedings of the road 
 company, or any officials connected with the title." And hark- 
 ing back to Marshall's celebrated precedents in the Arrendondo 
 and other cases, he held that where the Government delegated 
 power to an official to certify, the evidence of that official was 
 final and conclusive. 
 
 Yet Brewer was forced to admit that the allegations that the 
 certificates had been obtained by fraud were uncontested. 
 " Therefore," said he on this point, " as the inquiry is now pre- 
 sented, it must be in the light of the uncontested allegation 
 that the certificates were obtained through the fraudulent acts 
 
 50 41 Federal Reports, 624-626. 
 61 Ibid., 501.
 
 UNDER CHIEF JUSTICE FULLER 603 
 
 of the road company." 52 But, he quickly went on, the pur- 
 chasers were innocent ; they knew that the governor had certi- 
 fied, and thought the title valid. There were other points in the 
 decision, but these were the main grounds. 53 
 
 Justice Brewer's Doctrine. 
 
 In a later decision, Justice Brewer, it may be parenthetically 
 remarked, openly avowed that fraud mattered nothing, so long 
 as legal title was held. 
 
 This nephew of Justice Field was even franker than Field 
 himself in justifying the products of fraud and theft. Justice 
 Brewer, on November 12, 1894, laid down the naked doctrine 
 that it was immaterial how an owner got his property. " He 
 may have made his fortune by dealing in slaves, as a lobbyist, 
 or in any other way obnoxious to public condemnation ; but, if 
 he has acquired the legal title to his property, he is protected 
 in its possession, and cannot be disturbed until the receipt of 
 the actual cash value. The same rule controls if railroad prop- 
 erty is to be appropriated. No inquiry is open as to whether 
 the owner has received gifts from State or individuals, or 
 whether he has, as owner, managed the property well or ill, or 
 so as to acquire a large fortune therefrom. It is enough that 
 he owns the property has the legal title ; and, if so owning, 
 he must be paid the actual cash value of the prop- 
 erty. . . ," 54 
 
 Could there be a more undisguised justification of every 
 species of fraud and theft? In more cautious phraseology the 
 doctrine had been often handed down from the Supreme Court 
 
 52 See, 148 U. S. Reports, 44. Among the attorneys for the com- 
 panies were Dolph, Ballinger, Mallory, Simon and others, some of 
 whom became United States Senators. 
 
 53 Ibid., 31-49. 
 
 54 See, Case of Ames vs. Union Pacific Company, 64 Federal Reports, 
 176.
 
 604 HISTORY OF THE SUPREME COURT 
 
 bench, but here was Justice Brewer serving blunt declaration 
 that irrespective of what flagrant fraud and general scoundrel- 
 ism were used, the Supreme Court of the United States 
 would justify it and sanction the results, provided the form 
 of getting legal title, which is to say, paper title, was accom- 
 plished. 
 
 Results of the Wagon-Roads Decision. 
 
 One of the effects of the wagon-road land grant cases may 
 be seen by reverting to Commissioner Herbert Knox Smith's 
 report on the timber monopoly. Of the ownership of timber 
 lands in the Pacific States and Northwest, he details that the 
 Southern Pacific Railroad Company, the Weyerhaeuser Tim- 
 ber Company, and the Northern Pacific Railway Company 
 (including their subsidiary companies) own 238,000,000,000 
 feet of standing timber. 
 
 The timber holdings of the Southern Pacific Railroad Com- 
 pany extend from Portland, Oregon, to Sacramento a dis- 
 tance of 682 miles. " This holding," he further explains, " con- 
 sists of the unsold part of the Government land grants in 
 Oregon and Northern California held by the Oregon and Cali- 
 fornia Railroad Company and the Central Pacific Railroad Com- 
 pany, subsidiaries of the Southern Pacific Railroad Company." 
 The timber holding of the Southern Pacific Railroad Company 
 is the largest in the United States, amounting to more than 106,- 
 000,000.000 feet, of which about 71.000,000,000 feet is in Ore- 
 gon. 55 . The Weyerhaeuser Timber Company owns 96,000,000,- 
 ooo feet of timber, and the Northern Pacific Railway Company 
 about 36,000,000,000 feet. Considerable of this area was ap- 
 propriated by means of the military wagon-roads decisions. 
 
 55 The Government is now suing to annul title to the Southern Pa- 
 cific lands in Oregon for non-compliance with the terms of the original 
 grants. It has also, it may be added, brought an action against the 
 same company to recover 6,100 acres of oil lands in Kern County, 
 California, alleging that they were patented by fraud.
 
 UNDER CHIEF JUSTICE FULLER 605 
 
 " The present commercial value of the privately owned stand- 
 ing timber in the country, not including the value of the land," 
 the report further says, " is estimated (though such an estimate 
 must be very rough) as at least $6,ooo,oco,ooo. Ultimately the 
 consuming public will have to pay such prices for lumber as 
 will give this timber a far greater value." 50 
 
 Here, at the risk of repetition, we will again observe that 
 Justice Field, Brewer's uncle, had been placed on the Supreme 
 Court Bench at the solicitation of Leland Stanford, one of the 
 four magnates then controlling the Central and the Southern 
 Pacific railroads with all their auxiliary and adjunct corpora- 
 tions. And Stanford was a powerful member of the United 
 States Senate at the time of Brewer's appointment to the Su- 
 preme Court of the United States. 
 
 Another Great Railroad Grant Validated. 
 
 The decisions that we have narrated are but a few typical 
 cases of the many determined by the Supreme Court of the 
 United States favorable to railroad corporations. Another 
 characteristic decision written by Brewer was that finally vali- 
 dating an enormous land grant to the Des Moines Navigation 
 and Railway Company. 
 
 This company, as we have related, had obtained by proved 
 briberies, 57 the passage of an act by Congress, in 1846, granting 
 it an area five miles (in alternate sections) on each side of the 
 Des Moines River, Iowa. Subsequently, the company claimed 
 that the grant included lands along the entire course of the 
 river to its source. If this claim held, the company would get 
 many hundreds of thousands additional acres. 
 
 66 " Summary of Report of the Commissioner of Corporations on the 
 Lumber Industry," Part 1 : 5, 25, 26, etc. 
 
 57 The report of the select committee of Congress exposing the cor- 
 ruption used is set forth in Report No. 243, Vol. Ill, Reports of Com-: 
 mittees, Thirty-fourth Congress, Third Session, 1856-57. The corrup- 
 tion fund amounted to $100,000.
 
 606 HISTORY OF THE SUPREME COURT 
 
 The contention was submitted in 1849 to Robert J. Walker, 
 Secretary of the Treasury, which department then exercised 
 jurisdiction over the public lands. Walker, as we have seen, 
 had himself profited notoriously from land grabbing. In his 
 opinion on the issue, Walker decided that a stretch of 900,000 
 acres above Raccoon Fork lay within the grant. 58 His 
 successor, Thomas Ewing, held the contrary. So the question 
 remained unsettled until, in 1858, 1860 and 1861, the company 
 lobbied acts through Congress and the Iowa Legislature 
 acts so ingeniously worded that they seemed to be for the in- 
 terests of actual settlers, but were in reality disguised measures 
 for the company's benefit. 
 
 Litigation, however, continued for forty years. In 1889 the 
 Government brought a suit to reclaim the lands from the com- 
 pany. The grant, it charged, had been merely given by legis- 
 lative enactment upon a trust for a distinct purpose. That pur- 
 pose was to improve the navigation of the river. But, so the 
 Government alleged, the company " did but a very small frac- 
 tion of the work it pretended to do; it abandoned the under- 
 taking covered by its contract." Notwithstanding this aban- 
 donment it grabbed a " vast land grant." On the other hand 
 " thousands of hard-working pioneers have settled and made 
 their homes upon the lands." Then, also, other railroad com- 
 panies claimed the lands under their grants. 
 
 " This litigation," declared the Government, " is in the in- 
 terests of bona-fide settlers against speculators who have ap- 
 propriated these lands in violation of law and of the principles 
 of common honesty. . . ." 50 The Supreme Court of the 
 United States, in January, 1892, decided in favor of the Des 
 Moines Navigation and Railway Company ; Justice Brewer de- 
 livered its opinion. 
 
 58 See, Case of Dubuque and Pacific Railroad Company vs. Litchfield, 
 XXIII Howard, 85. 
 
 59 U. S. vs. Des Moines Navigation and Railway Company, 142 U. S. 
 Reports, 540.
 
 UNDER CHIEF JUSTICE FULLER 607 
 
 A Legislature's "Good Faith." 
 
 Instead of admitting (what the fact was) that the Govern- 
 ment was acting directly for the settlers, Brewer diverted the 
 point in this fashion: The United States, he said, was only 
 a nominal party " whose aid is sought to destroy the title of the 
 company " ; therefore, the defense of laches that it was a 
 stale claim should be sustained. Justice Brewer well knew 
 that no statute of limitations ran against the Government ; hence 
 his object in relegating the Government as a nominal party. 
 He also was not aware of the fact that bitter contests between 
 corporation and settlers had gone on continuously, and that the 
 claims of the settlers had never become dormant. 
 
 But what of the original acts lobbied through by fraud and 
 bribery? Out again came Marshall's time-worn fiction. 
 " Knowledge and good faith of a legislature," echoed Brewer, 
 " are not open to question, but the presumption is conclusive 
 that it acted in full knowledge and good faith. . . ." 
 The records were full of evidences of bribery, but the Supreme 
 Court pretended to be innocent of knowing them, or even of 
 giving them credit. 
 
 Without examining this decision further it is only necessary 
 to draw a parallel between it and that in the Illinois Central 
 Railroad water : front case to show the glaring inconsistency 
 that the Supreme Court continuously betrayed. 
 
 In the Illinois Central case the Supreme Court (by a vote of 
 four to three) decided, as we have seen, that the Legislature 
 held the submerged water-front lands in Chicago in trust for 
 the people. 
 
 But in the Des Moines Navigation and Railway Company 
 case, it repudiated the Government's contention that the Iowa 
 lands were held in similar trust. 
 
 It may be pertinently inquired, if one kind of property was 
 held in trust for the people, why not all other kinds ? 
 
 o Ibid., 543.
 
 608 HISTORY OF THE SUPREME COURT 
 
 By such decisions the Supreme Court revealed itself as an 
 arbitrary, dictatorial body, often contradicting its own dogmas, 
 and fashioning constructions as it pleased, only to upset those 
 constructions when the dominant capitalist interests so re- 
 quired it. 
 
 Justice Field Serves Notice. 
 
 Indeed, on one noted occasion, Justice Field in his apparent 
 anxiety to be of service to the Central Pacific Railroad so far 
 transgressed the ordinary rules of judicial procedure and pru- 
 dent caution, that his action caused scandal even among the 
 legal fraternity. In a suit brought by California against the 
 Central Pacific, he announced that if that State attempted to 
 force its stand, an injunction could be applied for and would 
 undoubtedly be granted. 61 Now as he was the very Supreme 
 Court Justice who presided over the California circuit, his 
 announcement was equivalent to notifying the Central Pacific 
 that it should apply to him for an injunction and would get it. 
 This kind advice Field gave at a stage in the suit when no 
 steps whatever had yet been taken for any such writ. 
 
 In another noted case, Field's nephew, Brewer, wrote a Su- 
 preme Court decision which, in order to validate a succession 
 of land claims, absolutely contradicted and contravened a dic- 
 tum that, for the same purposes, had been followed since Mar- 
 shall's day. 
 
 A Memorable Decision. 
 
 The case was that of Camou vs. the United States, for con- 
 firmation of a private land claim of 20,034.62 acres, near Santa 
 Cruz, Arizona. This land was claimed under an alleged grant 
 and sale made by the Mexican authorities, in 1827-1828. In 
 1853, President Santa Anna of Mexico issued a decree declar- 
 ing that " the public lands, as the exclusive property of the 
 nation, never could have been alienated by virtue of decrees, 
 
 01 Central Pacific Railroad vs. California, 162 U. S. Reports, 128.
 
 UNDER CHIEF JUSTICE FULLER 609 
 
 orders and enactments of the legislatures, governments or local 
 authorities." Article II of the decree ordered that all sales 
 or grants made without the approval of the Federal Govern- 
 ment, according to law, were null and void. Section III pro- 
 vided for the recovery of these lands, and Section IV pro- 
 hibited their confirmation. A month later, Santa Anna signed 
 a treaty with the United States by which that part of Arizona 
 comprised in the Gadsden purchase, was transferred to the 
 United States. The Camou claim was in this territory. 
 
 Another decree issued by Santa Anna, on July 5, 1854, was 
 even more specific and drastic. It practically annulled an im- 
 mense number of grants which had been obtained unlawfully 
 or by fraud and collusion. 02 Naturally enough, the holders of 
 these and other claims struck back by manufacturing a revo- 
 lution, and Santa Anna was deposed. His successor, Juan 
 Alvarez, a creature of the land appropriators, issued a decree 
 repealing Santa Anna's decrees, and declaring the titles valid. 
 
 Thirty-seven years later in 1891 Camou filed claim for 
 the confirmation of the tract claimed by him. Meanwhile, 
 rich mining deposits had been discovered in that locality. The 
 Court of Private Land Claims decided in favor of the Govern- 
 ment. Santa Anna's decrees, it held, were valid. He was 
 President of Mexico, and the United States Government had 
 recognized him as such when it negotiated the Gadsden Pur- 
 chase with him. Accordingly, the Court of Private Land 
 Claims held, his decrees had to be accepted as authoritative. 
 
 Camou appealed to the Supreme Court of the United States. 
 Seldom if ever, had this Court been put in a more ticklish or 
 embarrassing position. In the cases in which it had validated 
 titles to tens of millions of acres in Florida, Louisiana, Mis- 
 souri, California and other sections it had consistently held 
 that the certificate of the officials in office was final and con- 
 clusive, even if the tenure of those officials were brief, and 
 
 92 These decrees are set forth in full in 171 U. S. Reports, 288-289.
 
 6lO HISTORY OF THE SUPREME COURT 
 
 changes and revolutions constantly upheaved new men into 
 authority. 03 
 
 So far as Mexican law was concerned the Supreme Court 
 of the United States could not apply its celebrated dictum that 
 no legislation could be passed impairing the sacred obligation 
 of a contract. On the other hand, if the decision of the Court 
 of Private Land Claims were sustained it would mean that 
 titles to ivast areas of land covered by alleged Mexican grants, 
 including gold, silver, copper and other mines of fabulous 
 riches, would be declared defective. 
 
 The Supreme Court Finds a Way Out. 
 
 The Supreme Court of the United States was in a quandary. 
 How was it to get around the admitted facts ? 
 
 By an extraordinary decision it achieved the feat of squar- 
 ing the circle to its own satisfaction. First it admitted (what 
 it could not deny) that Santa Anna had been the actual and 
 recognized President, and that the United States had " right- 
 fully dealt with him in a political way in the negotiation and 
 purchase of territory." But Brewer went on with a species 
 of reasoning that no other court in the world would or could 
 have used. " When," he said, " the courts are called upon to 
 inquire as to personal rights existing in the ceded territory, a 
 mere declaration by the temporary executive cannot be deemed 
 absolutely and finally controlling. . . . It is going too far 
 
 63 Justice Brewer was not ignorant of the fact that Mexican gov- 
 ernors fraudulently and indirectly made grants to themselves. At the 
 exact time of his decision in the Camou case, the admitted facts in the 
 case of Faxon vs. U. S. revealed that, in 1842, Governor Manuel Gan- 
 dara, of Sonoro, boldly seized lands belonging to the Indian pueblo, 
 and granted them to his brother-in-law, Francisco Aguilar, to be held 
 in trust for him (Gandara). The purchase money was supplied by 
 Gandara. (171 U. S. Reports, 246.) 
 
 It is interesting to observe that Francis J. Heney, who later was so 
 much puffed up as an exposer of corruption, was Faxon's attorney in 
 this case. It is also worth noting that the Supreme Court of the United 
 States decided that Gandara never had been vested with power to make 
 the grant. Compare with decison in the Camou case.
 
 UNDER CHIEF JUSTICE FULLER 6l I 
 
 to hold that the mere declaration of law made by a temporary 
 dictator, 64 never enforced as against an individual grantee in 
 possession of lands, is to be regarded as operative and deter- 
 minative of the latter's rights." Brewer concluded, " We 
 think this arbitrary declaration made by a temporary dictator 
 was not potent to destroy the title." 5 
 
 The decision of the Court of Private Land Claims was re- 
 versed; and that railroad, mining and other corporations, in- 
 stead of the Government, now hold incalculably rich areas of 
 copper, gold and silver mines, oil and timber lands and other 
 natural resources, is due to that decision and accompanying 
 decisions of the Supreme Court of the United States. To 
 say that the Southern Pacific Railroad was one of the cor- 
 porations interested is but stating a fact. 
 
 An Administration of Railroad Lawyers. 
 
 During Cleveland's administration, new Justices came on 
 the Supreme Court Bench. One of these appointments was 
 that of United States Senator Edward D. White, whose career 
 we shall describe in a later chapter. The other was that of 
 Rufus W. Peckham. Before reviewing Peckham's career, it 
 is important to summarize an especially notable decision which 
 was argued just before Peckham went on the Bench. 
 
 President Cleveland himself had been a railroad attorney; 
 
 64 General Santa Anna was elected President of Mexico for the term 
 beginning April i, 1833. He filled that office from 1841 to 1845. De- 
 posed and exiled, he was recalled and made President in 1846, and 
 commanded the army in the Mexican War with the United States. 
 After Scott's occupation of Mexico, he resigned, but was recalled by 
 the army and made president in April, 1853. A revolution of the land 
 appropriators drove him into exile in August, 1855. 
 
 05 See, Case of Camou vs. U. S., 171 U. S. Reports, 277-291. Also 
 similar case of Perrin vs. U. S., Ibid., 292. United States Senator John 
 T. Morgan was Perrin's attorney. Morgan had long been the law 
 partner of John W. Lapsley, so conspicuous in the Texas land frauds. 
 Early in his political career, Morgan was attorney for the Selma and 
 Gulf Railroad, of which Lapsley was a director. See, 45 Alabama 
 Reports, 698 (year 1871), and 46 Ibid., 235, etc.
 
 6l2 HISTORY OF THE SUPREME COURT 
 
 he had represented the Canada Southern Railway and other 
 corporations. Likewise many of the members of his cabinet, 
 or his close associates, were railroad attorneys or railroad 
 stockholders. Attorney-General Olney had been a director of 
 the Philadelphia, Wilmington and Baltimore Railroad/' 6 now 
 an integral part of the Pennsylvania Railroad system. Olney 
 had also been counsel for the Eastern Railroad Company, the 
 Framingham and Lowell Railroad and other railroads." 57 Wil- 
 liam C. Whitney, who had been Secretary of the Navy under 
 Cleveland's first administration, was the chief promoter ?.nd 
 campaign fund accumulator for Cleveland's renominatiou and 
 reelection in 1892. Whitney was allied by marriage with 
 Senator Henry 'B. Payne, railroad magnate and treasurer of 
 the Standard Oil Company. Whitney, at this fhne, was asso- 
 ciated with other capitalists in control of tb<; Metropolitan 
 Street Railway Company of New York. According to the 
 specific charges uttered and published by Col. W. N. Amory, 
 these " financiers " stole at least $30,000,000 by the manipula- 
 tion of that company, and an estimated $60,000,000 in addi- 
 tion. 68 
 
 Whitney had been associated in 1884-1885 with William H. 
 Vanderbilt, the Rockefellers, Stephen B. Elkins, D. O. Mills and 
 other capitalists in the Southern Pennsylvania Railroad transac- 
 tion a very remarkable piece of profitable manipulation and 
 
 66 "Poor's Railroad Manual" for 1880, p. 381. 
 
 67 124 Mass. Reports, 520 and 528; 130 Ibid., 195; 133 Ibid., 115, etc. 
 
 68 See Amory's " The Truth About Metropolitan," 1906, in which the 
 figures and modus opcrandi are set forth at length. Amory has never 
 been sued for libel, nor have his facts been shown erroneous. Much 
 of the corruption charged against the Metropolitan Street Railway Com- 
 pany was confirmed by the testimony before the New York Legisla- 
 tive ("Graft Hunt") Committee, in September, 1910. It was then 
 specifically revealed that the bribery of prominent members of the Leg- 
 islature was an habitual performance, and that the corruption fund 
 annually used was not merely considerable, but great. Another form 
 of corruption was that of contributions to capitalist political parties. 
 In the year 1902, for example, the Metropolitan Street Railway Com- 
 pany contributed $18,000 to the New York State Democratic Committee 
 and $25,000 to the Republican State Committee.
 
 UNDER CHIEF JUSTICE FULLER 613 
 
 duplicity described elsewhere. 69 Whitney was in the closest 
 touch with the great capitalist interests. So, also, was Daniel 
 S. Lament, Cleveland's former private secretary, and Secre- 
 tary of War under Cleveland's second administration. Sub- 
 sequent developments revealed him associated with J. Pier- 
 pont Morgan, George F. Baker and other powerful capitalists 
 in the Northern Securities Company, illegally formed to com- 
 bine the interests of the Northern Pacific Railroad and the 
 Great Northern Railroad. 70 
 
 The United States Senate was filled with railroad attorneys 
 or magnates: Allison, Spooner, Gorman, Aldrich (whose 
 daughter married John D. Rockefeller, Jr.), Hoar and many 
 other representatives of railroad or associated interests were 
 conspicuous in that body. One of the most eminent Senators, 
 Cushman K. Davis, had represented Russell Sage and had 
 also been attorney for Hill's Great Northern Railway. 71 The 
 Senators belonging to the capitalist interests were in the ma- 
 jority, and held control over the confirmation of appointments: 
 
 But at this juncture there was a group of men in both 
 branches of Congress who, while comparatively small in num- 
 ber, were able by their persistence and agitation to exert an 
 influence on legislation and to expose predatory bills. These 
 were the representatives of the Populist Party, which in the 
 election of 1892 polled more than a million votes, and put 
 five Senators and ten Representatives in Congress. The old 
 political parties viewed this formidable vote with dread and 
 apprehension. It was essentially a middle-class movement. 
 This was the reason at that particular time why its progress 
 and strength evoked dismay among the great capitalists, who 
 were as yet very far from the final process of crushing the 
 middle class and consummating their movement for concen- 
 
 69 In the " History of the Great American Fortunes," Vol. II : 208-210. 
 
 70 See Case of Northern Securities Company vs. U. S., 193 U. S. Re- 
 ports, 202. Lament was sued by the Government jointly with Morgan, 
 Baker, Stetson, etc. 
 
 71 161 U. S. Reports, 702; 163 Ibid., 653, etc.
 
 614 HISTORY OF THE SUPREME COURT 
 
 tration of control of all transportation systems and industry. 
 Few as 'the Populist representatives in Congress were, they 
 had behind them this large voting strength. Moreover, even 
 a few forceful men in Congress then proved themselves able 
 to compel the majority to make a certain concession. 
 
 The Income-Tax Bill. 
 
 This concession was the passage of the bill for the taxation 
 of incomes. Bitterly opposed, the income-tax bill became a 
 law in 1894 without President Cleveland's signature. On five 
 different occasions the Supreme Court of the United States 
 had declared the income tax constitutional. 
 
 The large capitalist interests were determined to do away 
 with this law by one means or another. To collect a specific 
 new tax it was necessary at least it was held to be so that 
 Congress should pass an appropriation for that purpose. Al- 
 though the Government had already begun preparations to 
 collect the tax, the Secretary of the Treasury, Carlisle, pre- 
 tended that he had no funds for the purpose ; this was the same 
 Carlisle who in 1895 turned over a bond issue, under circum- 
 stances of the greatest scandal, to a syndicate headed by J. 
 Pierpont Morgan, thus virtually giving that syndicate a profit 
 of $18,000,000. Morgan's lawyer, Francis Lynde Stetson, had 
 been Cleveland's law partner from 1889 to 1892, and was now 
 a frequent confidential visitor to the White House. 
 
 A Bit of Secret History. 
 
 What happened next was related to this author by Senator 
 Pettigrew. ' The House," he said, " passed an urgency def- 
 icit bill appropriating $250,000 to collect the tax. When this 
 bill came before the Senate, Senator Quay of Pennsylvania 
 telephoned me to come to his house. There I met a certain 
 Standard Oil magnate. Quay argued that the Treasury De-
 
 UNDER CHIEF JUSTICE FULLER 615 
 
 partment had been tampered with, and urged me to say so in 
 the Senate, and to get me and the other four Senators to vote 
 against the bill. His object, of course, was to defeat the bill, 
 so that the Treasury Department could again fall back upon 
 the excuse that it had no available funds with which to collect 
 the tax. ' There's $250,000 for you, if you do this,' Quay 
 assured me. I refused." 
 
 The bill was passed. There was now only one possible way 
 to get rid of the income tax act ; this was to have it declared 
 unconstitutional by the Supreme Court of the United States. 
 The preliminaries to an action were thus arranged : 
 
 The board of directors of the Farmers' Loan and Trust 
 Company met and passed a resolution that they would volun- 
 tarily pay the income tax, which notice was sent to all of the 
 stockholders. One of the prominent capitalists in the com- 
 pany, Pollock, then brought a suit to restrain the company 
 from paying the tax. 
 
 When the case was argued before the Supreme Court of the 
 United States, Clarence A. Seward represented Pollock, and 
 Joseph H. Choate, a prominent corporation attorney, was the 
 Farmers' Loan and Trust Company's principal counsel. 72 To 
 neutralize the rebuttal that the Supreme Court during past 
 times had itself on no less than five occasions held that the 
 income tax was valid, Choate submitted a lengthy list of 
 precedents to persuade the court that it did not have to follow 
 its own precedents ! 
 
 Justice Jackson was ill at his home in Tennessee, which left 
 eight Justices sitting. From later developments it is quite 
 clear that at first five members of the whole body were op- 
 posed to declaring the income tax unconstitutional. On April 
 8, 1895, the Supreme Court declared some of the clauses of 
 the act unconstitutional but the main point was not passed 
 upon until May 20, 1895. 
 
 72 In the New York Times, issue of June 2, 1907, the statement was 
 made that Choate received a fee of $200,000 for his argument in this 
 case.
 
 6l6 HISTORY OF THE SUPREME COURT 
 
 In the meantime, Justice Jackson, although sick and near 
 death, was urgently solicited to hurry to Washington to par- 
 ticipate in the final vote. According to a despatch in the New 
 York World, published May 7, 1895, " the Baltimore and 
 Ohio Railroad which, as a corporation, was anxious to have 
 the income tax declared unconstitutional, was eager to land 
 Jackson in Washington. A sleeping car was sent to Belle 
 Meade to enable him to get a comfortable sleep and to journey 
 with the least fatigue." That this insinuation against Jackson 
 was without foundation was soon shown. 
 
 A Justice Changes His Mind. 
 
 When the final vote was taken, it turned out that one Justice 
 had changed his mind, " over night," and arrayed himself 
 against the income tax. This Justice was said to be Shiras 
 who, as we have seen, came from the same State as Senator 
 Quay, and who had been counsel at Pittsburg for the Balti- 
 more and Ohio Railroad system. The pro-income tax news- 
 papers freely stated that the vacillating Justice was Shiras, 
 and denounced him. This tergiversation caused a very conse- 
 quential sensation, and was bitterly commented upon in the 
 speeches and declarations of supporters of the income tax. 
 But, of course, none of Shiras' critics were so venturesome 
 as to make specific charges of improper motives or acts; had 
 such charges been made, no scintilla of proof could have been 
 discovered in the records. 
 
 The Income Tax Declared Unconstitutional. 
 
 By a vote of five to four the Supreme Court declared the 
 whole income tax act unconstitutional, in that it was a direct 
 tax and violated the Constitution by making no provision for 
 an apportionment among the States according to the popula- 
 tion.
 
 UNDER CHIEF JUSTICE FULLER 
 
 One of the reasons given by Justice Field in declaring the 
 income tax unconstitutional was that it would reduce judicial 
 salaries ; he pointed out, with great seriousness and solicitude, 
 that the judges were protected by that clause of the Consti- 
 tution which provides that their compensation " shall not be 
 diminished during their continuance in office " ! 
 
 Justices Brown, Jackson, Harlan and White entered a vigor- 
 ous dissenting opinion. 73 ". . . By its present construc- 
 tion of the Constitution," said Harlan, " the Court for the first 
 time in all its history declares that our Government has been 
 so framed that in matters of taxation for its support and 
 maintenance those who have incomes derived from the renting 
 of real estate or from the leasing or using of tangible property, 
 bonds, stock, and investments of whatever kind, have privi- 
 leges that cannot be accorded to those having incomes derived 
 from the labor of their hands or the exercise of their skill or 
 the use of their brains." 
 
 But this decision was only one of successive decisions fos- 
 tering the growth of capitalism, and conceding its increasing 
 demands, while at the same time other important decisions 
 were forthcoming inimical to the working class and aimed to 
 undermine, if not destroy, its organized defenses. The ag- 
 grandizing of plutocracy and hostile decrees against working- 
 class action went hand in hand in the productions of the 
 Supreme Court of the United States. What these decisions 
 were, and the circumstances and forces behind them, are re- 
 lated in the next chapter. 
 
 73 Chief Justice Fuller wrote the majority decision. In the opinion 
 rendered on April 8, 1895, it was decided that rents from real estate 
 were not taxable by Congress without interstate apportionment. (157 
 U. S. Reports, 429.) The final decision of May 20 exempted the entire 
 income from direct taxation by Congress, whether that income were 
 derived from rents or from any other sources, unless the tax were 
 apportioned among the States as respected population. (158 U. S. 
 Reports, 601.) Chief Justice Walter Clark of the North Carolina Su- 
 preme Court estimated that that change of a single vote saved the rich 
 at least a billion dollars a year.
 
 CHAPTER XV 
 
 Seven days after its obliterating the income-tax law, the 
 Supreme Court of the United States handed down a decision 
 which was then regarded, and has been since, by both legal 
 profession and lay public, as one of the most extraordinary 
 on record. 
 
 The Pullman Workers' Strike. 
 
 This decision was in the Debs case, which was a result of 
 the great strike of the railway workers in 1894. That strike 
 originated in the grievances of the workers in the Pullman 
 Company's shops. Organized in 1867 to build sleeping cars, 
 the Pullman Company, by methods which we have already 
 described, 1 possessed itself of the title to five hundred acres 
 of land near Chicago. In addition to constructing its plant, 
 it used two hundred acres for the building of what it called 
 a " model " town. In this it accordingly owned the houses, 
 the water and gas supply and, in brief, controlled the town 
 of Pullman absolutely. For its flimsy, congested habitations 
 it charged its workers $18 a month rental ; the cost of gas to 
 the Pullman Company was thirty-three cents a thousand feet, 
 yet the Company's tenants, comprising its own workers, had 
 to pay $2.25 a thousand feet; taking advantage of the com- 
 
 1 In the preceding chapter, as set forth in the Case of Speck ct al. vs. 
 Pullman, by deceit, fraudulent sales and other methods therein detailed. 
 
 618
 
 UNDER CHIEF JUSTICE FULLER 619 
 
 plaisance of municipal officials, the company bought water at 
 four cents a thousand gallons, and charged its tenants ten 
 cents a thousand gallons for that same water. For the mere 
 privilege of having shutters on the houses, the occupants were 
 taxed fifty cents a month. 
 
 The average yearly pay of the Company's wage workers was 
 $613.86. But few of the workers ever received their wages 
 in cash. Tenants of the company, their " debts " to the com- 
 pany were subtracted from the wages due. So greatly were 
 they exploited, that numerous witnesses testified before the 
 Special Commission appointed later by President Cleveland 
 that at times their bi-weekly checks amounted to sums varying 
 from fifty cents to one dollar. Nor did the company produce 
 witnesses to disprove these statements. 
 
 When, in the year 1893, a panic was in process, the company 
 reduced wages one-fourth, yet it made no reduction whatever 
 in its charges for rent, water, gas and other necessities. The 
 company asserted that its diminution of business and profits 
 compelled this reduction in wages. But the report of the 
 Government's Special Commission subsequently appointed to 
 investigate the causes of the strike, showed that the Pullman 
 Company's statement was not only untrue, but flagrantly so. 
 This report, prepared in 1895, detailed how the company's 
 capital had been increased from $1,000,000 in 1867 to $36,- 
 000,000 in 1894, and how " its prosperity has enabled the com- 
 pany to pay two per cent, quarterly dividends." In certain 
 years, however, the dividends had ranged from nine and one- 
 half to twelve per cent. The Special Commission further re- 
 ported that the company had, in addition, laid by a reserve fund 
 of profits in the form of a surplus of $25,000,000 which had 
 not been divided. For the year ending July 31, 1893, the dis- 
 tributed dividends amounted to $2-,52o,ooo, and the wages for 
 that year were $7,223,719.51. In the ensuing year, when 
 wages were reduced one-fourth, and went down to $4,471,-
 
 62O HISTORY OF THE SUPREME COURT 
 
 701.39, the stockholders reaped an even greater amount in 
 dividends than in the preceding year, namely, $2,880,000.- 
 
 Hence, it is evident that the remonstrances of the Pullman 
 workers against the intolerable conditions under which they 
 had to labor and exist were more than well founded. The 
 company refusing to consider their grievances, the workers, on 
 May n, 1894, declared a strike. The interests of the Pull- 
 man Company and nearly all of the large railroad systems 
 were closely associated ; the same magnates were often found 
 as stockholders in both ; and by reason of its immense profits, 
 the company was continually extending its holdings in railroad 
 lines. At present the only three railroads in which the Pull- 
 man Company has no interest are the St. Paul, the New York, 
 New Haven and Hartford, and the Great Northern. 
 
 The Great Railway Strike of 1894. 
 
 It was, therefore, with a view to compelling the Pullman 
 Company to come to terms that the American Railway Union, 
 under the leadership of Eugene V. Debs, declared a general 
 sympathetic strike. But there were other strong reasons. 
 For twelve years the General Managers' Association, repre- 
 senting twenty-four railroads centering or terminating in Chi- 
 cago, had been in aggressive existence. Leagued together in 
 this powerful organization, these representatives of the rail- 
 road magnates were reducing the wages of railroad workers 
 below the level of subsistence, and on the other hand were 
 combined for the purpose of extorting high passenger and 
 freight rates. In law it was a conspiracy in restraint of 
 trade, but it is needless to say that no writ of arrest had ever 
 
 2 See, " Report on the Chicago Strike of June and July, 1894," by the 
 U. S. Special Commission, 1895. It may be added that the Pullman 
 Company's present capital is $120,000,000, and that in its recent report 
 to the Interstate Commerce Commission (1911) it admitted that it never 
 had any new capital paid in except from " earnings." At the same 
 time, it has been paying an average annual dividend of eight per cent.
 
 UNDER CHIEF JUSTICE FULLER 621 
 
 been issued against a single member of the General Managers' 
 Association. Neither did any court presume to issue an in- 
 junction, sweeping or qualified. Railroad workers, agitating 
 for better conditions, were discharged and blacklisted, 3 yet 
 for this offense the General Managers' Association was not 
 even questioned by the authorities. This systematic cam- 
 paign against the railroad workers led to the formation of 
 the American Railway Union, composed of employes, and 
 was one of the contributing causes of the great strike of 1894. 
 
 Repeating their successful ruse used at Pittsburg in the 
 strike of 1877,* the railroad corporations caused cheap, worn- 
 out freight cars to be set on fire, 5 and then forthwith accused 
 the strikers of violence and rioting. This charge proclaimed 
 through twenty thousand subservient newspapers, preju- 
 diced the general public mind, and was immediately seized 
 upon as a pretext for the ordering out of Federal troops. 
 Evidently Governor Altgeld knew the real facts, for he re- 
 fused to call upon the President for troops. In violation of 
 the law, and against Altgeld's protest, President Cleveland, 
 ostensibly to quell rioting, but in reality to interfere with 
 strikers assembling and picketing, hurried Federal soldiers 
 to Illinois. At the same time Federal judges, some of whom 
 had been attorneys for the railroads involved, issued unprece- 
 dented injunctions which even went so far as to forbid the 
 strikers from persuading fellow workers to quit work. 
 
 One of these injunctions was issued by the Federal judge, 
 
 3 See testimony affirming the general existence of this practice, " Re- 
 port of the Industrial Commission, 1900," Vol. IV (Transportation) : 
 pp. 52, 123, 516, 528, etc. 
 
 4 The late Carroll D. Wright, so favorably and widely known for his 
 work as United States Commissioner of Labor and in other fields, re- 
 lated in his " Battles of Labor " (p. 122) how at Pittsburg a number 
 of worthless freight cars were fired by railroad emissaries, and the 
 strikers were then charged with riot. Wright wrote that from all he 
 was able to gather, the reports that the railroads manufactured riots 
 were true. 
 
 5 Parsons' " The Railways, The Trusts and The People," 196. Also 
 see, Report of Chicago Chief of Police for 1894.
 
 622 HISTORY OF THE SUPREME COURT 
 
 Peter S. Grosscup, at Chicago. It was notorious that Gross- 
 cup owed his position to the influence of corporations ; recent 
 disclosures regarding his conduct both before he was a judge 
 and since that time are supposed to have been instrumental 
 in causing his recent resignation. Grosscup's brother, Benja- 
 min, was a Northern Pacific Railroad attorney. On July 
 3, 1908, Charles H. Aldrich, a Chicago attorney who had 
 originally indorsed Grosscup for the judgeship, sent to 
 United States Attorney-General Bonaparte a communication 
 in which he accused Grosscup of having asked railroads for 
 free transportation for himself and family and for others. 
 After specifically charging Grosscup with other alleged mal- 
 feasances, Aldrich continued with this specific arraignment of 
 Judge Grosscup's methods : 
 
 There are many other acts calling for the severest censure and utterly 
 incompatible with a high sense of judicial integrity; e. g., his connec- 
 tion with the Mattoon street railroad scheme. You will note that he 
 caused this company to have business relations with the Guarantee 
 Trust Company of New York, which had then but recently become a 
 complainant in his court and upon whose bill he had appointed receivers 
 for all the traction properties of the north and west sides. It is known 
 that money was borrowed through the assistance of the people repre- 
 sented by the Guarantee Trust Company to enable Mr. Sampsell, one 
 of the receivers and at the same time clerk of the United States Circuit 
 Court, to pay for his interest in the property. 
 
 The receivership was a friendly one, the parties seeking a reorgan- 
 ization of the properties. Ultimately, they desired the assistance and 
 cooperation of the court and its receivers. When, therefore, Mr. 
 Sampsell applied for a large loan to the parties interested in the litiga- 
 tion, and supported his application with a letter from Judge Grosscup, 
 it was natural that these parties complied with the request through 
 arrangements with the Knickerbocker Trust Company. Perhaps this 
 was rendered more probable by the order entered of record as an 
 excuse for violating the statute forbidding the appointment of any 
 clerk of court as receiver except for good cause shown. This recited 
 that Mr. Sampsell was appointed because he was near to the court. 
 
 The subsequent history of the Mattoon enterprise has been shameful 
 and calculated to discredit the lectures of the same judge delivered in
 
 UNDER CHIEF JUSTICE FULLER 623 
 
 all parts of the country on the subject of overcapitalization and popu- 
 larization of the trust. 
 
 This history need not be followed. The view I wish to express is 
 that a judge should not be in such relations to litigants and receivers 
 in his court. 
 
 There are stories of a large speculative account carried by the judge 
 with H. B. Hollins & Co., of New York, who were among the principal 
 holders of the traction securities, and back of the suit of the Guarantee 
 Trust Company. I have no positive knowledge on this subject. 
 
 It was Grosscup who, at a critical stage in the strike, 
 caused Debs and his associates to be haled up for contempt 
 of court, and it was Grosscup who, acting as prosecutor, judge 
 and jury all in one, convicted them of contempt of court, 
 and sentenced them to jail. 
 
 Habeas Corpus Denied to Debs. 
 
 Debs, on January 14, 1895, applied to the Supreme Court 
 for a writ of habeas corpus. 
 
 His counsel, Lyman Trumbull, a noted lawyer who himself 
 had represented corporations, began his argument by reciting 
 the circumstances of " the extraordinary proceeding under 
 which the prisoners were deprived of liberty." This action 
 was begun by the filing of a bill of equity in the name of 
 the United States under the direction of Attorney-General 
 Olney. As we have seen, Olney had been a railroad director. 
 The bill was unsigned by anyone, and " has attached to it an 
 affidavit of George I. Allen, an unknown person, having, 
 so far as the record shows, no connection with the case, 
 stating that he has read the bill and ' believes the statements 
 contained therein are true.' " Was there anything unlawful, 
 Trumbull asked, in the American Railway Union calling upon 
 
 c And, according to a list of the ten largest security holders of the 
 leading railroads in the United States given out by the Interstate Com- 
 merce Commission, January 15, 1009, Richard Olney, G. F. Richardson 
 and B. P. Cheney of Boston were trustees for 204.700 shares of pre- 
 ferred stock of the St. Louis and San Francisco Railroad.
 
 624 HISTORY OF THE SUPREME COURT 
 
 its members to quit work? If not, then Debs and associates 
 were not engaged in any unlawful combination or conspiracy. 
 The boycott of the Pullman cars was, as the bill clearly 
 showed, not to obstruct commerce, but for an entirely dif- 
 ferent purpose. Refusing to work, Trumbull went on, was 
 no crime. Although such an action might incidentally delay 
 the mails or interfere with interstate commerce, it was a 
 lawful act and no offense. The act of Congress to protect 
 trade and commerce against unlawful restraints and monopoly 
 did not apply to the case stated in the bill; if so, Trumbull 
 said, it was unconstitutional. 
 
 Justice Brewer delivered the decision of an unanimous 
 Court. The remarkable sight, was now presented of this 
 " great and honorable court " deciding the case upon a point 
 in no way involved, thus violating one of the most funda- 
 mental principles of law. Brewer denied Debs' petition upon 
 the ground that he and associates had obstructed interstate 
 commerce traffic by derailing and wrecking engines and trains, 
 and assaulting and disabling railroad employes. If this were 
 true, why was it that no such criminal action had ever been 
 brought against Debs? And if it were true, Debs could have 
 been convicted and sentenced to prison for a long term, 
 instead of getting the sentence of six months in jail for con- 
 tempt of court that the Supreme Court of the United States 
 on May 27, 1895, tnus affirmed. In the very act of sending 
 D^ebs to jail the Supreme Court established (as an entering 
 wedge) the ominous precedent and principle that the Federal 
 anti-trust law applied to combinations of wage workers. 7 
 
 7 In re Debs, 158 U. S. Reports, 564. While Attorney-General Olney 
 was thus pressing the case against Debs and having the anti-trust act 
 applied to labor unions, he was allowing an important case against the 
 cash-register combination to go by default. The important allegations 
 of the Government against this trust were clearly sustained. Olney, 
 into whose control the prosecution of the case had come from his 
 predecessor, allowed the indictment to lapse, giving the remarkable 
 and specious reason that the complaining witnesses had entered into 
 the combination of the defendants! See, U. S. vs. Patterson et al., 
 55 Federal Reporter ; 605 and 59 Ibid., 208.
 
 UNDER CHIEF JUSTICE FULLER 625 
 
 Of the Justices sanctioning this decision, these particulars, 
 repeated here, are pertinent as indicating class bias : 
 
 Chief Justice Fuller had been counsel for Marshall Field, 
 chief owner of the Pullman works, and he had represented the 
 Chicago, Burlington and Quincy Railroad and other railroad 
 capitalists and interests. 8 
 
 Justice Field had been placed on the Supreme Court Bench 
 by the Central Pacific and the Southern Pacific Railroad in- 
 terests. 
 
 Field's nephew, Brewer, had been sponsored by the same 
 and allied interests. 
 
 Justice Gray was a capitalist with varied interests and con- 
 nections. 
 
 Justice Shiras had represented the Baltimore and Ohio Rail- 
 road system. 
 
 Justice Brown had represented the Vanderbilt and other 
 railroads as counsel in Michigan, and was a corporation stock- 
 holder. 
 
 Justice White was a rich Louisiana sugar planter. 
 
 Touching unanimous decisions, it will be desirable to insert 
 a few words here of a decision of the Supreme Court of the 
 United States which gave Justice Gray another sizeable for- 
 tune. 
 
 Justice Gray, " Next of Kin." 
 
 His grandfather, William Gray, had been one of the largest 
 shipowners in New England, and was one of those asserting 
 that his interests had suffered from French spoliations after 
 the French Revolution. For more than eighty years attempts 
 were made to lobby through Congress acts to indemnify these 
 claimants, but the claims were regarded as nothing more or 
 less than tenacious efforts to raid the Treasury. Finally, 
 
 8 Noted on the record in Case of Chicago, Burlington and Quincy 
 Railroad vs. Chicago, 166 U. S. Reports, 227 (October, 1896) : " The 
 Chief Justice took no part in the consideration or determination of these 
 cases " (p. 263).
 
 626 HISTORY OF THE SUPREME COURT 
 
 in 1885, Congress was induced to pass an act authorizing the 
 referring of certain claims to the Court of Claims. One of 
 these was the Gray claim. 
 
 The question, however, was: Who should get the money, 
 appropriated as indemnity for spoliations of William Gray's 
 ships? That William Gray had gone bankrupt was unde- 
 niable. The Massachusetts Supreme Court had decided that 
 the indemnity funds which had beenj>aid to Codman, admin- 
 istrator of the Gray estate, should " be paid over as assets 
 to the estate of William Gray, the elder, and^as passing under 
 his will to the residuary legatees named therein." 9 These 
 legatees were charitable and other societies. 
 
 But the Supreme Court of the United States upset this 
 decision. In delivering the unanimous decision of this Court, 
 Chief Justice Fuller held that the act of Congress of March 
 3, 1891, should be construed to read not that the payments 
 should go to the creditors, legatees, assignees or strangers to 
 the blood, but that they should be turned over to the next 
 of kin. And by " next of kin," Fuller explained, was in- 
 tended " next of kin " at the time the act was passed. 
 
 The " next of kin " in this case was Fuller's colleague, 
 Justice Horace Gray, who thereby was enabled to add a goodly 
 sum to his bank account. 10 
 
 A new Justice to succeed Jackson now came on the Supreme 
 Court Bench in the person of Rufus W. Peckham. President 
 Cleveland had at first successively nominated William B. 
 Hornblower and Wheeler H. Peckham, both corporation 
 attorneys. 11 But they belonged to a political faction in New 
 
 9 159 Mass. Reports, 427. 
 
 10 See, Case of Brooks vs. Codman, and Foote vs. Women's Board of 
 Missions, 162 U. S. Reports, 439. " Mr. Justice Gray did not sit in 
 these cases or take any part in their decision." P. 466. 
 
 11 Hornblower had represented the Pacific Railroad of Missouri (IV 
 Supreme Court Reporter, 584), the New York Life Ins. Co., and other 
 corporations. Wheeler H. Peckham was also a well-known corporation 
 attorney ; he was a director of the Buffalo, Rochester and Pittsburg 
 Railway, and was interested in other corporations. See later.
 
 UNDER CHIEF JUSTICE FULLER 627 
 
 to 
 
 York inimical to United States Senator David B. Hill who 
 now in retaliation fought down their nominations with suc- 
 cess. Cleveland then compromised on Rufus W. Peckham, 
 a brother of Wheeler H. Peckham. 
 
 Justice Peckham's Career. 
 
 Rufus W. Peckham was a son of a jurist of the same name 
 who had been a judge of the New York Court of Appeals 
 and had died in 1873. The junior Rufus, in 1866, married a 
 daughter of D. H. Arnold, President of the Mercantile Bank, 
 'of New York City. He became a member of the law firm 
 of Peckham and Tremaine (later Peckham and Rosendale) 
 in Albany; was elected District Attorney of Albany County 
 in 1869, and subsequently Albany's Corporation Counsel. 
 From thence on his private practice was large and lucrative. 
 
 We find Rufus W. Peckham as one of the counsel, in 1872, 
 for the notorious Tammany judge, John H. McCunn, of the 
 Superior Court, New York City. 12 The Bar Association pre- 
 ferred charges of corrupt conduct against McCunn ; 13 Peck- 
 ham vigorously defended him at the trial, but McCunn was 
 found guilty on eight specifications, impeached and removed 
 from office. 14 Six years later, Peckham appeared as counsel 
 for John F. Smyth, Superintendent of the Insurance Depart- 
 ment of New York State. Smyth was charged with mal- 
 feasance and corruption. The influence of the great insur- 
 ance corporations was concentrated upon bringing about his 
 
 12 For Peckham's pleas and arguments for McCunn at this trial, see, 
 " Proceedings in The Senate on The Investigation of The Charges 
 Preferred Against John H. McCunn," etc., Albany, 1874: pp. 80, 100, 
 102, no. 134, 142, etc. 
 
 13 It is curious to note that one of the three members of the acting 
 committee of the Bar Association was John E. Parsons, the very same 
 who has long been chief counsel for, and a director of, the Sugar Trust, 
 the enormous thefts of which in defrauding the Government of import 
 duties, were exposed in 1909-1910. 
 
 14 See, " Proceedings In The Senate On The Investigation Of The 
 Charges Preferred Against John H. McCunn," etc., pp. 604-605.
 
 628 HISTORY OF THE SUPREME COURT 
 
 
 
 acquittal; and by a vote of 19 to 12 (thus lacking the con- 
 stitutional two-thirds majority) the New York Senate de- 
 cided not to remove him from office. 15 In 1883, Peckham 
 was counsel for Lorenz B. Sessions, charged with bribery, 
 and in the course of his argument Peckham pleaded that 
 " an acquittal would hurt no one, but the question of con- 
 viction was serious, for if a conviction was had, the defendant 
 would be sent to prison for a term of years." Much com- 
 ment was made upon Peckham's peculiar views on the offense 
 of bribery, in his arguing that bribery was a secret transac- 
 tion, and that the informer was a " squealer." 
 
 As counsel or trustee or both for many banking, insurance 
 and other corporations Peckham's practice and activities were 
 extensive. His investments were considerable. In 1884 he 
 was elected a trustee of the Mutual Life Insurance Company 
 of New York, and continued in that capacity for twenty-one 
 years. His associates on the board of trustees of that com- 
 pany at various times comprised many of the most powerful 
 capitalists in the world ; George F. Baker, Cornelius Vander- 
 bilt, Henry H. Rogers, William Rockefeller, James Speyer 
 and many others of lesser, but still enormous, power. 16 
 
 His Magnate Associates. 
 
 Baker was president or vice-president or director of more 
 than thirty corporations; he was the President of the First 
 National Bank and a director in other banks ; first vice-presi- 
 dent and director of the Central Railroad of New Jersey, 
 director of the Delaware, Lackawanna and Western Railroad, 
 
 15 See, " Testimony and the Arguments of Counsel Before The Sen- 
 ate on Charges Against John F. Smyth, Superintendent of the Insurance 
 Department, Albany, 1878 " : pp. 5, 7, 40, etc. Peckham's final argument 
 for Smyth is to be found on pp. 365-384, and the vote on the question 
 of Smyth's removal on page 518. 
 
 16 See, " The Insurance Year Book " for 1905 : p. 175. Other trustees 
 were Stuyvesant Fish, Augustus Julliard, George G. Haven, Charles 
 Lanier, Elbridge T. Gerry, Elihu Root, Adrian Iselin, Jr., etc., etc.
 
 UNDER CHIEF JUSTICE FULLER 629 
 
 of the Northern Pacific Railway, of the Lehigh and Hudson 
 Railroad, of the Consolidated Gas Company, trustee of the 
 Southern Railway Company, etc., etc. 17 
 
 The Standard Oil Company, in which Rogers and Rocke- 
 feller were among the few dominating magnates, then largely 
 or wholly controlled, in league with the Goulds, twelve rail- 
 road systems with a total mileage of 28,157, and a total capi- 
 talization of $1,368,877,540. These systems included the 
 Missouri Pacific, the Texas Pacific, the Wabash, the St. 
 Louis Southwestern, the Denver and Rio Grande, the Wheel-, 
 ing and Lake Erie, the Western Maryland, the Chicago, Mil- 
 waukee and St. Paul, the Colorado and Southern, and other 
 railroad lines. 18 
 
 The Vanderbilts controlled about eleven railroad systems 
 21,888 miles of railroad in all capitalized at more than 
 a billion dollars, and they held formidable interests in other 
 railroads. 10 
 
 The J. Pierpont Morgan group, also represented on the 
 board of trustees of the Mutual Life Insurance Company, was 
 allied with James J. Hill in the control of 47,206 miles of rail- 
 road lines, capitalized at more than two billion dollars.' 
 Other groups of railroad capitalists were likewise repre- 
 sented. 
 
 But the railroad ownings of Peckham's fellow trustees 
 were only a fragment of their entire interests. Rogers was 
 an officer or director of twenty-five large corporations in- 
 cluding railroads, great copper companies, gas corporations 
 and others. 21 Fish was an officer or director of twelve dif- 
 ferent corporations ; 22 Julliard of twenty-one ; 23 William 
 
 17 " Directory of Directors " for 1899 : pp. 22-23. 
 
 18 Moody's " The Truth About The Trusts," " Gould-Rockefeller 
 Group " : pp. 435-436. 
 
 18 Ibid., 432. 
 20 1 bid., 434. 
 
 21 "Directory of Directors In The City of N. Y.," for 1904: 795-796. 
 
 22 Ibid., 307. 
 **Ibid., 495-496.
 
 630 HISTORY OF THE SUPREME COURT 
 
 Rockefeller of thirty-one ; 24 Iselin of twenty-seven ; 25 Cor- 
 nelius Vanderbilt of twenty ; 2G Speyer of seventeen ; 2T 
 Lanier of eighteen ; 28 Haven of thirty-two ; 23 and so on. 
 The ramifications of the power of these men, owning and con- 
 trolling, as they did, billions of dollars of the country's re- 
 sources, were stupendous. 
 
 Corruption by the Mutual Life Insurance Company. 
 
 Much of the immense surplus of the life insurance compa- 
 nies was invested, by vote of the trustees, in the great out- 
 pourings of watered railroad and industrial stocks. The 
 Mutual Life Insurance Company alone held, in 1904, assets 
 of $440,978,371 ; it had liabilities of $366,620,553, and its 
 surplus was $74,357,818. The revelations before the New 
 York Legislative Insurance Committee, in 1905, are perhaps 
 tolerably well remembered ; how syndicates of " insiders " 
 made vast profits by dumping watered stock, which they as 
 directors of railroads and other corporations had issued, upon 
 the insurance companies, and how for decades corruption 
 funds had been distributed in every legislative center to insure 
 the passage of favorable special legislation and the defeat of 
 laws hostile to the insurance company looters. 
 
 " The testimony," reported the legislative committee, 
 " taken by this committee makes it clear that the large insur- 
 ance companies systematically attempted to control legislation 
 in this [New York] and other States, which could affect 
 their interests directly or indirectly. The three companies 
 divided the country, outside of New York, and a few other 
 States, so as to avoid a waste of effort, each looking after its 
 chosen district and bearing its appropriate part of the total 
 expenses." 30 
 
 24 Ibid., 792-793. Ibid., 967-968. zs Ibid., 536-537. 
 
 25 Ibid., 472-473. 27 Ibid., 885-886. 29 Ibid., 409-410. 
 
 30 " Report of the [New York] Legislative Committee, 1906, Vol. 
 X:2 3 .
 
 UNDER CHIEF JUSTICE FULLER 63! 
 
 One of these three companies was the Mutual Life Insur- 
 ance Company. At Albany it maintained a sumptuously ap- 
 pointed house, jocosely styled " the House of Mirth," where 
 Andrew C. Fields, its regular lobbyist, manipulated legisla- 
 tion and distributed corruption funds. " At times," reported 
 the Committee, " members of the Senate while serving on its 
 Insurance Committee, lived at this house in Albany which the 
 Mutual maintained." 31 The corruption funds were cloaked 
 under the guise of " legal expenses " ; from 1898 to 1904, 
 the Mutual Life Insurance Company thus corruptly expended 
 more than $2,ooo,ooo. 32 Vast thefts of the policy holders' 
 money were committed in the Mutual's " Supply Department " 
 which was under Fields' charge. 33 " Large sums," the Com- 
 mittee further reported, " have been expended in the attempt 
 to influence public opinion through the press by the insertion 
 of so-called ' reading notices ' ; that is to say, by disguised 
 advertising and by payments to newspaper correspondents 
 and news writers for presumably similar services." 34 
 
 Manipulation of Elections. 
 
 Of the Mutual Life Insurance Company, the Committee still 
 further reported that " it is a purely mutual company, and in 
 theory is governed exclusively by its policy holders. . . . 
 In practice the policy holders have had little concern with the 
 selection of trustees or with the management of the Com- 
 pany. Notices of election have been published in New York 
 City papers but have not been mailed to policy holders. 
 There are probably between 400,000 and 500,000 policy 
 
 31 Ibid. See full details, pp. 17-22. 
 
 3 - Ibid., 16. The "legal expenses" of the Mutual Life Insurance 
 Co. for a series of years were: 1898, $266,403.95; 1899, $286,048.74; 
 1900, $304,756.85; IQOI, $243,516.78; 1902, $275,989.64; 1903, $347,254-95; 
 1904, $364,254.95. 
 
 33 "Report of the [New York] Legislative Committee," etc., Vol. X: 
 P- 25. 
 
 26.
 
 632 HISTORY OF THE SUPREME COURT 
 
 holders entitled to votes for trustees, but for a long period 
 of years not more than 200 votes have been cast at any elec- 
 tion. The voters who vote personally have generally been 
 employes of the company or of subsidiary companies. The 
 policy holders are entitled to vote by proxy, but as a rule 
 proxies have not been used. In order to secure the con- 
 tinuity of the management and to guard against an uprising 
 of the policy holders, proxies to the extent of 20,000 or more 
 were held by President Richard A. McCurdy and Vice-Presi- 
 dent Richard Grannis, having been obtained, under suitable 
 instructions, by the local managers. . . . The result has 
 been an autocracy maintained almost without challenge. 
 Whatever efforts have been directed against it have proved 
 abortive." 35 
 
 Peckham Did Not Protest. 
 
 Peckham, as we have said, was a trustee of the Mutual Life 
 Insurance Company for twenty-one years, beginning in 1884. 
 He had been on the Bench of the Supreme Court of the 
 United States for nearly ten of the years covered by this 
 report. 
 
 Was he unfamiliar with this colossal corruption and these 
 illegal methods? If he were, then he was unfit to be a trustee 
 of a company of the administration of which he was ignorant. 
 
 This lack of knowledge might be assumed of an official who 
 served but a short time ; but Peckham had been a trustee con- 
 tinuously for more than two decades. Moreover, as we have 
 seen, Peckham, back in 1878, had defended State Insurance 
 Superintendent Smyth, charged with corruption ; the details 
 in that long trial were such that they could hardly have left 
 anyone innocent of the methods of the life insurance com- 
 panies. We have also seen how Peckham had defended the 
 corrupt Judge McCunn, and how in the Sessions case he had* 
 slighted the gravity of the offense of bribery. Finally, ia 
 
 S B " Report of [N, Y.] Legislative Committee," Vol. X: 9-10.
 
 UNDER CHIEF JUSTICE FULLER 633 
 
 view of the disclosures concerning the autocratic methods by 
 which a few men manipulated the choice and election of 
 trustees, was it possible that he would have been kept on the 
 board of the Mutual's trustees if he had not been passive or 
 subservient ? 
 
 During the twenty-one years as trustee, Peckham did not 
 once protest. On the contrary, he retained his office and 
 associations. Not until during the height of the disclosures 
 before the Legislative Insurance Committee, when the New 
 York World addressed some sharp editorial letters to him, 
 did he resign; and this he did, in November, 1905, with many 
 sanctimonious expressions of " righteous indignation." Dur- 
 ing the very time that he was serving as a trustee of the 
 Mutual Life Insurance Company he was, as a Justice of the 
 Supreme Court of the United States, handing down decisions 
 declaring certain anti-corporation laws unconstitutional 
 decisions of incalculable value to his capitalist associates. 30 
 It was this same Peckham, blind (let us assume) to the 
 prodigious corruption of the corporation of which he was a 
 trustee, who saw and declared that a law establishing a ten- 
 hour work day for hard-driven bakeshop workers was un- 
 constitutional. 
 
 Peckham's appointment to the Supreme Court of the United 
 States represented another significant stage of economic de- 
 velopment. His associates on the Mutual Life Insurance 
 Company, especially during the latter part of his trusteeship, 
 were not exclusively railroad magnates, factory owners or 
 banking grandees. Their elaborate interests embraced rail- 
 roads, banking syndicates, street railway systems, electric light 
 plants, coal mines, copper, gold and silver mines, realty com- 
 panies, and industrial trusts of all descriptions. In those 
 men, or some of them, was concentrated the control of some 
 of the mightiest trusts which, in turn, controlled a host of 
 
 36 See later.
 
 634 HISTORY OF THE SUPREME COURT 
 
 subsidiary trusts. They were the arch-types of the newer 
 era of trusts and the sway of trusts. 
 
 Briefly, we shall now give a succession of decisions of the 
 Supreme Court of the United States, the first in the list of 
 which was given before Peckham's appointment. 
 
 The Sugar Trust Decision. 
 
 On January 21, 1895, the decision in the action of the 
 Government against the Sugar Trust was handed down. 
 This trust controlled 98 per cent, of the output of sugar, 
 yet the Supreme Court decided that it was not a combination 
 in restraint of trade under the Sherman anti-trust act. 37 
 
 This decision demonstrated that the Supreme Court was 
 pro-trust, and could be surely depended upon to validate any 
 trust in maintaining its monopoly. . 
 
 From the point of view of industrial progress, there was 
 nothing in this decision intrinsically open to criticism ; the 
 trust was a superior institution to the archaic, passing one 
 of unrestricted competition, and was bound to prevail by 
 force of its economic superiority. But the fact to be noted 
 is that, despite drastic legislation against trusts, the Supreme 
 Court could or would not see that it violated the laws. In 
 the Debs case a little later it microscopically searched laws 
 to find a ground on which to commit Debs to jail, and had 
 to invent a fictitious point in order to do it. In the one 
 
 3T Case of U. S. vs. E. C. Knight Company, 156 U. S. Reports, i. 
 Practically, this decision legalized the operations of the trust and ab- 
 solved its powerful heads from criminal prosecution. The all-wise 
 Supreme Court of the United States failed to discover that a trust was 
 a trust. But the Federal Grand Jury, in July, 1909, seems to have 
 keener eyesight. It indicted John E. Parsons, originator of the trust 
 idea and formerly general counsel, and leading director of the American 
 Sugar Refining Company. Thomas, vice-president, Donner, Frazier 
 and other officials of the trust were also indicted. For two years Par- 
 sons and associates contested the indictments, but the Federal Circuit 
 Court in New York recently decided that they must stand criminal trial 
 for alleged conspiracy to restrain commerce.
 
 UNDER CHIEF JUSTICE FULLER 635 
 
 case, the Supreme Court of the United States refused to en- 
 force the clearest and most unmistakable laws against power- 
 ful capitalists; in the other, it manufactured law in order 
 to strike a blow at the workers by jailing one of its most 
 active, sincere and able leaders, thus setting a precedent for 
 the future imprisonment of other labor leaders. 
 
 Long-Continuing Sugar Frauds. 
 
 Exempted from hostile decrees, the Sugar Trust, as later 
 developments proved, set out vigorously on an even more 
 oppressive process of illegally undermining remaining com- 
 petitors, and at the same time defrauded the Government of 
 vast sums by the underweighing of imported sugar material. 
 
 The testimony recently given May and June, 1911 
 before the Stanley Congressional Investigating Committee 
 revealed that the Sugar Trust had been a trust since 1887 
 when, as Edwin F. Atkins of Boston, acting president of 
 the trust testified, seventeen sugar-refining companies had 
 been organized into a trust by H. O. Havemeyer. Atkins 
 admitted, too, that the trust had, in violation of law, con- 
 sistently received rebates from the railroads. Of the mass 
 of corroborating testimony we shall not reproduce more here. 
 And as to the methods used by the Sugar Trust in trying to 
 rid itself of a dangerous competitor like Spreckels, one of 
 many facts testified to was that dead rats were surreptitiously 
 placed in barrels of sugar packed in Spreckels' factory. 
 
 The import frauds of the Sugar Trust were so gigantic 
 that when they were discovered in 1908-1909, that trust has- 
 tened to pay over in April, 1909, a settlement of about 
 $2,000,000 to the Government, hoping to avert criminal pro- 
 ceedings. It was estimated that the total sums of which 
 the trust had defrauded the Government reached tens of 
 millions of dollars. One of the directors of the Sugar Trust 
 during this period was John E. Parsons who made the argu-
 
 636 HISTORY OF THE SUPREME COURT 
 
 ment for the trust before the Supreme Court of the United 
 States, in 1894. He and all the other responsible magnates 
 escaped criminal punishment; they were indicted in 1909, it 
 is true, yet not for customs frauds, but for violations of the 
 anti-trust act. The only punitive action enforced was against 
 a few trust employes, and some Government weighers who 
 had been bribed. They were sent to prison. 
 
 A Series of Decisions. 
 
 To return to the succession of Supreme Court decisions : 
 
 On March 30, 1896, that Court nullified the grant of power 
 to the Interstate Commerce Commission to settle maximum 
 rates for railroad transportation. 38 
 
 On the same day the Supreme Court handed down a deci- 
 sion practically allowing interstate railroads license to charge 
 two or three times as much for carrying American, as for 
 foreign, freight, between the same points and conceivably on 
 the same car. 30 
 
 On the other hand, the Supreme Court of the United 
 States, in the Arago case, so construed the thirteenth Amend- 
 ment to the Constitution as to make it the basis for a new 
 form of involuntary servitude for all workers, white, black, 
 red or yellow. 
 
 Robertson, Olsen, Bradley and Hansen, seamen who had 
 shipped by contract in the bark Arago, decided because of 
 intolerable conditions, to quit work when the vessel reached 
 Astoria, Oregon. They were subsequently arrested at San 
 Francisco, and were charged under Rev. Statute 4596, with 
 refusing to work. When their petition for a writ of habeas 
 corpus came before the Supreme Court of the United States, 
 
 38 Cincinnati, New Orleans and Texas Pacific Railway vs. I. C. C, 
 and I. C. C. vs Cin., N. O. and Texas Pacific Railway, 162 U. S. Reports, 
 184. Justice Shiras wrote the Court's unanimous decision. 
 
 39 Texas and Pacific Railway vs. I. C. C., 162 U. S. Reports, 197. 
 Shiras also wrote this decision; Harlan and Brown dissented.
 
 UNDER CHIEF JUSTICE FULLER 637 
 
 that Court held that the statute in question did not conflict 
 with the Constitutional amendment forbidding slavery and 
 involuntary servitude. That provision, the Court said, was 
 never intended to apply to such contracts ; the contract of a 
 sailor involved, to a certain extent, the surrender of his per- 
 sonal liberty during the life of the contract. 40 
 
 It can easily be seen how such a precedent can be stretched 
 a little further to cover workers of all kinds as well as labor 
 unions signing contracts. Whatever oppression and injus- 
 tice are heaped upon them, workers can be held in servitude 
 to the letter of their contract, while if the capitalist decides 
 to throw his workers out of jobs, he can plead various rea- 
 sons for justification, and no contract is enforced against him. 
 
 More decisions favorable to railroad corporations followed. 
 On May 24, 1897, the Supreme Court handed down a deci- 
 sion reasserting and even amplifying some of its previous 
 anti-interstate commerce decisions. 41 
 
 It repeated the performance in an anti-interstate commerce 
 decision, on November 8, 1897. 
 
 On March 7, 1898, the Supreme Court's decision in the 
 Nebraska maximum rate case was made public. This deci- 
 sion was another step in the process of stripping the Inter- 
 state Commerce Commission of the power given it by Con- 
 gress to make interstate railroad rates reasonable. The effect 
 of the decision was to nullify legislation in many States, and 
 allow the railroads to charge what rates they pleased in both 
 intrastate and interstate transportation. 42 
 
 In that same year the Supreme Court, on October 24, 
 
 40 Case of Robertson vs. Baldwin, 165 U. S. Reports, 275. Brown de- 
 livered the Court's decision ; Harlan dissented. 
 
 41 I. C. C.'vs. Cincinnati, New Orleans and Texas Pacific Railway Co., 
 167 U. S. Reports, 479. Brewer delivered this decision. In the other 
 case, I. C. C. vs. Alabama Midland Railway Co. (168 U. S. Reports, 
 144), Shiras wrote the decision. Harlan dissented in both cases. 
 
 42 Smyth vs. Ames, 169 U. S. Reports, 466. Harlan wrote the Court's 
 unanimous decision. " The Chief Justice took no part in the considera- 
 tion or decision of these cases" (p. 550).
 
 638 HISTORY OF THE SUPREME COURT 
 
 decided the live-stock cases, both companion cases to the 
 Sugar Trust cases. Although each of these live-stock com- 
 binations was flagrantly violating the laws in restraint of 
 interstate commerce, a bill of immunity was extended to both 
 by the Supreme Court. 43 
 
 The decision in the Joint Traffic Association case was 
 handed down on the same day. The unsophisticated accepted 
 this decision as one of an anti-trust nature, but the well-in- 
 formed believed that this association, representing thirty -one 
 railroads, wanted a decree for its formal dissolution, so as 
 to be able to plead arguments for the necessity of legislation 
 by Congress virtually allowing combination. Ostensibly de- 
 fendants, they in reality secured a much-desired decision which 
 they were making great pretenses of contesting. 44 
 
 The decision in the Addyston Pipe and Steel Company case 
 was hailed as one adverse to the trusts, but this company 
 was entirely too small to be ranked among the great trusts 
 and it was believed that the suit for its effacement was secretly 
 instigated by great capitalists objecting to its competition or 
 scheming to annihilate it. 45 
 
 One of the Supreme Court's decisions of immense value to 
 the land-grant railroads was that of May 31, 1898, declaring 
 that the land grant of the Northern Pacific Railroad, under 
 the act of July 2, 1864, extended two hundred feet on each 
 side of the track along the entire right of way. The railroad 
 company did not bring ejectment proceedings until 1877, by 
 which time cities and towns had been built along the road ; 
 and not until after these sites had become of great value did 
 the company think of asserting title to these valuable 
 stretches of real estate under its claim of right of way. This 
 
 43 Hopkins vs. U. S., 171 U. S. Reports, 578, and Anderson vs. U. S., 
 Ibid., 604. Peckham delivered the court's opinion ; Harlan dissented. 
 
 44 U. S. vs. Joint Traffic Association, 171 U. S. Reports, 505. Peck- 
 ham wrote this decision also. 
 
 4r> Addyston Pipe and Steel Company vs. U. S., 175 U. S. Reports, 211. 
 This decision was also written by Peckham.
 
 UNDER CHIEF JUSTICE FULLER 639 
 
 decision, of course, presented the company with property worth 
 vast sums. 40 
 
 These are a few typical decisions of the Supreme Court of 
 the United States during this period. The infirmities of age 
 were publicly exhibited in a painful and pathetic manner on 
 the exalted Bench of the omnipotent Supreme Court of the 
 United States. During the hearings of some of the most 
 important cases, Justice Gray, suffering from kidney trouble, 
 frequently fell asleep ; Justice Shiras often nodded in slumber, 
 blissfully oblivious to the learned arguments of learned coun- 
 sel who were often put at their wits' end to conceal their con- 
 fusion. As for Justice Field, he could be seen, on occasion 
 after occasion, staggering to his seat, all out of breath, his 
 eyes bulging, and 'his frame in the shiver of extreme decrepi- 
 tude; he required an assistant to hold him up. 
 
 McKenna Chosen to Succeed Justice Field. 
 
 Field died on April 9, 1899, aged nearly eighty-three .years. 
 As personal wealth went, his estate was comparatively incon- 
 siderable. By his will, dated May 5, 1897, he bequeathed the 
 whole of his real and personal estate to his wife, excepting 
 a portrait of his sister Emilia which he left to his nephew 
 (Emilia's son), Associate Justice Brewer. Mementos and 
 books were bequeathed to other members of the family. 
 Field's real estate consisted -of his fine house and grounds 
 facing the east front of the Capitol, which property he had 
 received from his brother, David Dudley Field, in 1880. This 
 property was valued at from $80,000 to $100,000. Accord- 
 ing further to the inventory of Field's estate filed May 5, 
 1899, the value of his personal estate was $65,000, compre- 
 hending " a library, household effects, horses and carriages 
 
 40 Northern Pacific Railroad vs. Smith, 171 U. S. Reports, 260. 
 Shiras wrote the decision ; Harlan dissented. Brewer, although con- 
 curring in the decision, excepted to some of its conclusions.
 
 640 HISTORY OF THE SUPREME COURT 
 
 of the value of about $15,000, and also a small balance in 
 bank, stocks and bonds and promissory notes which will not 
 exceed in aggregate the value of $50,000, making the total value 
 of his personal estate about $65,000." Including both real and 
 personal property Field's estate was, therefore, about $165,000. 
 
 Here again was another example of a judge who by his 
 decisions had given vast properties and privileges to indi- 
 viduals and corporations but who was incorruptible as far 
 as bribes or jobbing were concerned. Probably no judge was 
 ever a more open, undisguised tool of great capitalist inter- 
 ests than Field; no judge served their purposes more un- 
 blushingly and with less disingenuousness. But it is evident 
 that he personally profited nothing; his corruption was that 
 of a purely mental subservience induced by his class views, 
 attachments and obligations. For thirty-six years Field had 
 been on the Bench of the Supreme Court of the United 
 States, and at the end of that time he left less of an estate 
 than many a petty merchant or even a half-way sucessful 
 shyster lawyer. No one could be more brutally inhuman than 
 Field in his application of law (or what he construed to be law) 
 to the advantage of capitalists and to the subjugation of the 
 workers. Yet as his will revealed, he had his personal human 
 qualities ; he did not forget the twenty-five years of faithful 
 service of his messenger, William Joice, to whom he left a 
 legacy of $500. 
 
 Field's successor, appointed by President McKinley, was 
 Joseph McKenna, of California. McKenna had been an ob- 
 scure "crossroads" lawyer at Suisun, California. The poli- 
 tics of California were notoriously controlled by the Southern 
 and Central Pacific railroads ; the political bosses were the 
 creatures of the Stanford-Huntington group who saw to it 
 that no one unfriendly to their interests was elected or ap- 
 pointed to any office. McKenna was elected district attorney 
 in- his county, but was tin ice defeated for Congress because
 
 UNDER CHIEF JUSTICE FULLER 64! 
 
 of his Roman Catholic faith. But in 1884 he was successful, 
 and was reelected to Congress of which he was a member for 
 three successive terms. 
 
 In Congress McKenna spoke little, but when he did so it was 
 for the railroads' interests, particularly those of the Central 
 Pacific Railroad Company. In the debate over the bill, in 
 1887, to establish the Interstate Commerce Commission, he 
 protested against the long and short haul clauses, and was 
 one of the forty-one Congressmen voting against the bill. 47 
 
 When the General Deficiency bill came up in the House, 
 in February, 1891, he again made himself conspicuous by 
 his defense of the Central Pacific Railroad. At that identical 
 time, the Central Pacific owed the Government $60,000,000 
 in principal and interest. Despite this debt, the Supreme 
 Court of the United States had (as he have already noted) 
 handed down a decision compelling the Government to pay 
 the railroad for the transportation of troops, supplies, etc. 
 The General Deficiency Bill contained an appropriation of 
 $3,000,000 to pay these railroad claims. McKenna spoke in 
 favor of the provision. 
 
 McKenna : " We know, sir, that the grants to the railroad 
 had their impulse in patriotism a patriotism enterprising 
 and conservative." [The reports of the Senate " Wilson " 
 Investigating Committee, the Pacific Railway Commission and 
 the San Francisco Grand Jury had successively and specific- 
 ally revealed that the kind of " patriotism " used had been the 
 distribution of a total of more than $4,000,000 in bribes.] 48 
 
 47 Congressional Record, Forty-ninth Congress, Second Session, Vol. 
 18, Part I : pp. 857 and 881. It was when this bill was before the 
 House that Representative Henderson, later Speaker, said : " This city 
 is swarming with keen, zealous, able agents of the railroad power, try- 
 ing to defeat the passage of this bill. Every vote cast at their dictation, 
 and every vote against this bill, is a vote for railroad supremacy against 
 the people." 
 
 48 It is hardly necessary to say that we have given the particulars of 
 these briberies in preceding chapters.
 
 642 HISTORY OF THE SUPREME COURT 
 
 " Mr. Chairman," McKenna went on, " there is nothing to 
 justify the refusal of this payment except a false sentiment, 
 and possibly some false politics." 
 
 A member " Claptrap ! " 
 
 McKenna : " And as the gentleman near me suggests, 
 claptrap. It would be claptrap if it were not adorned by 
 gentlemen of ability, and sanctioned by them." 49 
 
 The Pacific Railroads Victorious. 
 
 Soon after this, McKenna, on March 17, 1892, was ap- 
 pointed a United States Circuit Court judge, to sit in the 
 California circuit. A year later Leland Stanford died, and it 
 was stated that McKenna was named in the will as one of the 
 executors. When McKenna was on the Circuit Bench 
 the suit of the Government to recover $15,237,000 from the 
 Stanford estate as its share of the Pacific Railroads' indebted- 
 ness, was decided by that court against the Government. 
 This decision was sustained by the Supreme Court of the 
 United States. 50 Various other cases affecting the interests 
 of the Pacific railroads were decided favorably by the Cir- 
 cuit Court when McKenna was a member. The action in- 
 volving the claim of the Southern Pacific Railroad Company 
 to continued possession of the water front of Oakland was 
 held up for nearly two years, creating much unfavorable 
 popular feeling, and in the case of the railroads against the 
 California Railroad Commission, McKenna's colleague, 
 Judge Ross, delivered the Court's decision holding that the 
 Commission had not the power to fix rates, and that the eight 
 per cent, reduction ordered was illegal. 51 
 
 49 Congressional Record, Fifty-first Congress, Second Session, Vol. 
 22, Part 4, p. 3397. 
 
 50 161 U. S. Reports, 413. Harlan wrote the Court's unanimous opin- 
 ion holding that the various acts of Congress contained no clause im- 
 posing personal responsibility upon the stockholders. Field was, of 
 course, on the Supreme Court Bench in 1896, the year of this decision. 
 
 51 Southern Pac. R. R. vs. R'd Commissioners, 79 Federal Reports, 236.
 
 UNDER CHIEF JUSTICE FULLER 643 
 
 During the American Railway Union strike in 1894, this 
 court also issued a comprehensive injunction restraining the 
 strikers from interfering with the United States mail trains. 
 The injunction enabled the railroads to defeat the strikers 
 by attaching mail cars to all trains, and by carrying Federal 
 troops ostensibly to protect those cars.. 
 
 When McKinley became President in 1897, he appointed 
 McKenna Attorney-General of the United States. It was 
 currently reported in the newspapers, and not denied, that 
 McKenna consented to accept this post on the understanding 
 that when Justice Field resigned he would be appointed to 
 succeed Field. At this point it should be noted that E. H. 
 Harriman was acquiring the Central, Southern and other 
 Pacific railroads; Harriman contributed heavily to McKinley's 
 campaign fund, as he later did to Roosevelt's. McKenna's 
 appointment as Attorney-General aroused a storm of severe 
 criticism, the point of which was that his decisions had always 
 favored trusts and corporations. 
 
 Protests Against McKenna's Appointment. 
 
 But those criticisms were mild compared to the widespread 
 strictures upon him when he was appointed to the Supreme 
 Court of the United States. 
 
 Protests poured in upon the United States Senate. One 
 extended petition from Oregon, signed by former United 
 States Attorney-General George H. Williams, Judges Gil- 
 bert, Shattuck, Sears, George, Bellinger and many others, 
 including fifty members of the Portland (Ore.) bar, de- 
 manded the rejection of McKenna's appointment, on the 
 ground that he was unfit. ". . . The Hon. Jos. McKenna 
 among his legal brethren has not been accorded a high place, 
 but on the contrary, the consensus of opinion has been and 
 is that he is not, either by natural gifts, acquired learning 
 or decision of character, qualified for any judicial place of
 
 644 HISTORY OF THE SUPREME COURT 
 
 importance, much less for the highest place in the land. 
 
 
 
 On December 6, 1897, a memorial signed by many promi- 
 nent lawyers, was sent from San Francisco to the Senate : 
 " In the first place, we accuse the judge of being slow and 
 incompetent. He is a man of confused ideas, and his record 
 on the Bench is disgraceful. . . . During the last two 
 years of his administration of the affairs of his circuit, he 
 had but three jury cases, six court cases, twenty-seven de- 
 murrers and motions. Many of the demurrers were left un- 
 decided. On retiring he left thirty-five important matters 
 wholly undecided. He had one case of minor importance 
 under advisement for two and a half years. In Case No. 
 12,127, t ne suit of the Railroad Commission against the 
 Southern Pacific Railroad, he was six months hemming and 
 hawing over the simplest matters; questions that any other 
 judge of the most mediocre ability would have passed on 
 inside an hour. He feared he would displease either the 
 railroad or the people." The petition concluded by referring 
 to McKenna as " a small man in every sense, and a cunning 
 politician and trimmer." 52 
 
 According to a San Francisco newspaper which had bitterly 
 opposed the Southern Pacific Railway, " those opposing 
 McKenna have been working stealthily for their petition. 
 . . . Their excuse for not coming out more boldly is that 
 if it had been known . . . W. F. Herrin and the Southern 
 Pacific would at once have started a counter petition. . . . 
 This would have been done in gratitude for the Railroad Com- 
 mission case, and the silence on the Open Water Front con- 
 troversy. ... At the time of the decision, some of the 
 remarks made by the attorneys for the people were of so 
 decidedly a derogatory nature that it was a wonder that 
 they had not become public. . . . Stories are put in cir- 
 
 02 These petitions were published in all of the leading newspapers of 
 the time.
 
 UNDER CHIEF JUSTICE FULLER 645 
 
 culation that McKenna is not of a mental caliber to sit upon 
 the Supreme Bench, but behind the open controversy looms 
 up a more guarded insinuation of the Attorney-General's sub- 
 jection to corporation influences." 53 
 
 In addition to these and other protests many newspapers 
 in editorials severely denounced the appointment. Of the 
 numerous editorials, we shall quote from the New York 
 World, a Democratic newspaper which, however, had vir- 
 tually advocated the election of McKinley in the McKinley- 
 Bryan campaign of 1896. Said the World of McKenna : 
 
 But he is equally unfit by reason of his affiliations and actions as a 
 lawyer and a judge. He has been the tool of corporations and the pet 
 of plutocrats. His advancement has been due entirely to the favor 
 of Stanford, Huntington and other multimillionaires of his section. 
 Every important decision he made in corporation cases was clearly in the 
 interests of his former clients. He represents in a peculiar degree 
 that perversion of judicial power to the service of plutocracy, against 
 which 6,500,000 voters protested in the last election. [This referred to 
 the Bryan campaign, the platform of which severely criticized the 
 Supreme Court for its shifting on the income-tax decision.] To con- 
 firm him in a seat on the Bench of the Supreme Court would be an 
 infamous betrayal of the people's trust. 54 
 
 Another editorial in the same newspaper the next day de- 
 clared : 
 
 The nomination of McKenna to be a justice of the Supreme Court 
 is a scandalous abuse of the appointive power, (i) The man's unfit- 
 ness by reason of a lack of learning, a lack of capacity, a lack of 
 fruitful experience and a lamentable lack of that high integrity which 
 is the most essential qualification of a Supreme Court Justice, is at- 
 tested by the indignant protest of the judges and lawyers in his own 
 part of the country. (2) His entire career has been one of servitude 
 to the Pacific Railway robbers, trust magnates and their kind, and even 
 his decisions as a judge upon the bench have been tainted by evidence 
 
 53 San Francisco Examiner, December 4, 1897. W. F. Herrin was 
 both lawyer and political manipulator, first for Stanford and Hunting- 
 ton, and then for their successor, Harriman. 
 
 54 New York World, December 17, 1897.
 
 646 HISTORY OF THE SUPREME COURT 
 
 of that subserviency. It is a shame to put this man upon the bench 
 of the highest court in the land. It is a wrong to the nation and its 
 people. It is an insult to widespread public opinion. It is a menace 
 to the public welfare. It is a blistering disgrace to the administration 
 which is responsible for it. The Senate's duty is clear. It should 
 reject the nomination as shamefully unfit. 55 
 
 A Suspicious Feature. 
 
 No doubt much in these protests was well founded and to 
 the point. But there was one suspicious feature of the 
 opposition to McKenna which we cannot pass by without 
 comment. 
 
 Despatches in the newspapers from Tacoma freely stated 
 that the protests against McKenna originated in San Fran- 
 cisco soon after the return from that city of Benjamin F. 
 Grosscup. Now Grosscup, as we have noted, was (as a mem- 
 ber of the firm of Crowley and Grosscup) an attorney for 
 the interests of the Northern Pacific Railroad in the States 
 of Washington and Oregon. The clear inference, therefore, 
 was that the Northern Pacific Railway Company was seeking 
 to prevent its southern transcontinental competitor, the South- 
 ern Pacific Railway, from putting McKenna on the Supreme 
 Court Bench. Evidently the conflict was one between two 
 immense railroad corporations with all of their associated and 
 subsidiary interests, as to which would command the choice 
 of the new Justice. 
 
 And it was so understood in Washington. The batches of 
 petitions and protests against the confirmation of McKenna 
 were of no avail, especially in a Senate where but few mem- 
 bers were not railroad attorneys or railroad magnates, and 
 where Harriman's influence at that particular stage proved 
 all potent. McKenna's nomination was confirmed. 
 
 Few appointments to the Supreme Court had aroused such 
 caustic personal criticism, publicly expressed, as that of Mc- 
 
 65 New York World, December 18, 1897.
 
 UNDER CHIEF JUSTICE FULLER 647 
 
 Kenna. Yet it must be said that McKenna's course on the 
 Supreme Court Bench was by no means all that the charges 
 in those protests would lead one to expect. In one memorable 
 case, at least, his dissenting opinion stood forth as an excep-' 
 tional and noteworthy defense of the grossly invaded rights 
 of kidnapped working-class leaders at a time when the most 
 powerful capitalist interests were banded in an effort to prose- 
 cute those leaders to the limit of judicial execution. 
 
 This, however, is anticipating. With McKenna's confirma- 
 tion criticism of his career ceased, but an occasion arose three 
 years later when both he and Harlan were invidiously at- 
 tacked in the United States Senate. As a result of the Span- 
 ish-American War, in 1898, the United States acquired Porto 
 Rico and the Philippines. Instantly, trusts and other syndi- 
 cates of capitalists set out to take advantage of the change. 
 The Tobacco Trust, the Sugar Trust and other trusts coveted 
 lands in the conquered regions and trade advantages, while 
 associations of powerful capitalists rushed to get concessions 
 for railroads, water rights, timber lands, mines, and, in brief, 
 all of the resources worth while appropriating. 
 
 "Constitution Does Not Follow the Flag." 
 
 But the question remaining unsettled was this : Were those 
 colonies to be held as subjugated possessions or were they to 
 be admitted as integral parts of the United States? Did the 
 Constitution apply to them? 
 
 To determine this issue, several test cases growing out of 
 disputed customs payments were carried up to the Supreme 
 Court of the United States. During the time when these 
 " Insular Cases " were under consideration, President McKin- 
 ley nominated sons of Justice Harlan and Justice McKenna to 
 important Government posts in Porto Rico. This fact led to 
 biting comments by Senators Pettigrew, Teller and Butler on 
 the subverting of the "independence of the judiciary"; the
 
 648 HISTORY OF THE SUPREME COURT 
 
 appointments, they declared, singularly coincided with the fact 
 that the question of the status of the colonies was before the 
 Supreme Court at that precise time. The general effect of 
 the various associated decisions was certainly in line with that 
 desired by McKinley and the capitalist groups behind him. 
 " The Constitution did not follow the flag," the Supreme 
 Court decided, thereby reducing the insular conquests to mere 
 appendages. 
 
 Since this decision, the spoliation of the Philippines has 
 gone on uninterruptedly; syndicates and trusts of American 
 capitalists have obtained from the local officials great areas 
 of sugar and timber lands, mines, coal deposits and railway 
 and other concessions. 
 
 At this point it is necessary to chronicle the appointment 
 of three new Justices of the Supreme Court. The first of 
 these was Oliver Wendell Holmes, Jr., selected to succeed 
 Justice Gray, who died in 1902. 
 
 Justice Holmes Succeeds Gray. 
 
 Holmes was of a different type from the usual Supreme 
 Court appointment. He had never represented any large cor- 
 porations. As a member of the Boston firm of Shattuck 
 and Holmes, his practice was for comparatively small corpora- 
 tions, middle-class business men and rich landholders of, how- 
 ever, a not very important group compared to the great pluto- 
 crats. 
 
 Shattuck and Holmes had been attorneys, beginning in 1873, 
 for such corporations as the Dorchester Insurance Company; 
 the Winnisimmet (ferryboat) Company; the receivers of the 
 Mechanics' Insurance Company and for similar corporations. 56 
 Shattuck, while Holmes' partner, was attorney for the South 
 Boston Railroad, the Eastern Railroad bondholders and so 
 forth. 67 We see Holmes, too, as a young lawyer, contesting 
 
 56 112 Mass. Reports, 150; 114 Ibid., 66; 120 Ibid., 497, etc, 
 67 121 Ibid., 487, etc.
 
 UNDER CHIEF JUSTICE FULLER 649 
 
 claims for damages due to injuries, 58 and arguing against the 
 rights of workers. One such case, for example, was that of 
 Temple, Watford and fellow seamen against vessel owners 
 for unpaid wages of which they had been defrauded. Holmes 
 argued that Turner, one of the ship's owners, did not person- 
 ally make the contract, or engage the seamen, and, therefore, 
 could not be held technically responsible. But the Massachu- 
 setts Supreme Court, on September 7, 1877, decided in ^favor 
 of the seamen. 50 
 
 Holmes was one of that type of lawyer that is personally 
 honest, but hide-bound by class views and class associations 
 " a Back Bay specimen " as some persons termed him. He, 
 no more than the other Justices, knew or cared about the con- 
 ditions under which the working class had to labor. Like 
 them, he was educated and developed in a fixed environment 
 of both law and custom, as well as of self-interest an en- 
 vironment hostile to the working class, and regarding it as a 
 class of preordained drudges to be looked down upon as hope- 
 lessly inferior. The class among which Holmes moved, and 
 from which he had derived his clientele, was suspicious and 
 resentful of the slightest move of the working class to better 
 its conditions, knowing that the extent of its sway and profits 
 depended upon the corresponding subjugation and degradation 
 of the workers. On the whole, this analysis could be applied 
 to Holmes without injustice. 
 
 A professor of law at Harvard in 1882, Holmes became 
 an Associate Justice of the Massachusetts Supreme Court in 
 that year, and from 1882 to 1889 was its Chief Justice. When 
 appointed to the Supreme Court of the United States he was 
 sixty-one years old. Roosevelt's selection of him was gener- 
 ally understood to be somewhat of a personal choice. Holmes' 
 father had been an essayist of tolerable fame ; and Roosevelt, 
 who liked to pose as a literary luminary, was partial tQ writers 
 
 58 Joy vs. Winnisimmet Company, 114 Mass. Reports, 66. 
 ? 9 Temple vs. Turner, 123 Mass, Reports, 125,
 
 650 HISTORY OF THE SUPREME COURT 
 
 and to the sons of writers. But had not Holmes abundantly 
 proved that on the general issues of property domination his 
 class instincts were thoroughly dependable, his appointment 
 would not have run the gauntlet of the United States Senate, 
 the overwhelming majority of which was composed of vigilant 
 corporation attorneys, or of the magnates themselves. 00 
 
 Shiras Resigns, and Day Takes His Place. 
 
 The next appointment to the Supreme Court made by Roose- 
 velt was that of William R. Day to succeed Justice Shiras, 
 who resigned on February 23, 1903. 
 
 Day's appearance was so striking in one respect that it com- 
 manded the instant scrutiny of the observer. His body was 
 so attenuated that he seemed almost to have none, and his leg 
 bones were not much larger than the average man's arm 
 bones. He had lived among musty law books which appeared 
 to have transmitted their atmosphere to him, devitalizing the 
 warm currents of heart and mind. In fact, it might be said 
 that legal tomes had been the first objects that his infantile 
 eyes had perceived ; his father, Luther Day, was a lawyer and 
 judge, long serving as a Justice of the Ohio Supreme Court. 
 Law became the family heritage ; a brother of William R. 
 Day is now a judge of the Common Pleas Court, at Canton, 
 Ohio, and two sons of William R. Day are lawyers, one asso- 
 ciated with a firm of corporation lawyers in Cleveland, the 
 other, William R. Day, II, a Federal judge. 
 
 Yet buried as Day's mind was in the sepulchral caverns of 
 moldy precedents of law, no man was more zealous and alert 
 in applying those precedents to the changing interests of cor- 
 
 00 Philander C. Knox, who had been attorney for Carnegie and later 
 for the Steel Trust, was Attorney-General of the United States at this 
 time, and even Vice-Presiclent Fairbanks, Roosevelt's official associate 
 (in 1905-1909), had been, shortly before his previous election as United 
 States Senator, president of the Terre Haute and Peoria Railway Com- 
 pany. ("Poor's Railroad Manual" for 1890, p. 1365.)
 
 UNDER CHIEF JUSTICE FULLER 651 
 
 porations. He made the past serve the purposes of the pres- 
 ent ; in unremitting and able retainership to his clients his 
 record as an attorney was consistent. He wore no double 
 coat ; he made no pretenses of caring for the interests of the 
 poor, the helpless and defenseless. Candidly and openly he 
 opposed them, which is equivalent to saying that he was a 
 genuine corporation attorney, bent solely and inexorably upon 
 performing the service for which he was paid. 
 
 Day as a Corporation Lawyer. 
 
 Some forty years ago he formed a law partnership with 
 William A. Lynch, at Canton, Ohio, under the firm name of 
 Lynch and Day. The records abundantly tell how they pros- 
 pered. Lynch, for example, held the lucrative post of local 
 attorney for the Pittsburg, Fort Wayne and Chicago Rail- 
 way (now a part of the Pennsylvania Railroad). He was 
 also a director of the Connotton Valley Railroad. 61 The 
 name of the firm varied at different times ; in 1880 it was 
 Lynch, Day and Lynch, the other Lynch being Austin, a 
 brother of William. For many years the firm represented 
 the Valley Railway Company 02 (now of the Baltimore and 
 Ohio Railroad system). During more than twenty years Wil- 
 liam R. Day appeared with great frequency as attorney for the 
 Wheeling and Lake Erie Railroad, 03 which became one of the 
 Gould railroads. 
 
 For a long series of- years Day and his partners were attor- 
 neys for the Canton Street Railway Company, the Connotton 
 Valley Railroad Company (now part of the Wheeling and 
 Lake Erie Railroad) ; the Farmers' Bank; the New England 
 Trust Company ; the City National Bank of Canton ; the Ma- 
 
 01 " Poor's Railroad Manual " for 1880: p. 612. 
 
 02 See, Appearance Docket, Court of Common Pleas, Stark County, 
 O., Vol. 54, p. 1673, Vol. 56, p. 3037, etc. 
 
 63 Ibid., Vols. 54, 55, 63, 68, etc., etc., in which his appearances as 
 counsel are entered with great frequency.
 
 652 HISTORY OF THE SUPREME COURT 
 
 honing National Bank of Youngstown ; the Alliance Bank ; 
 the Cleveland and Canton Railway Company ; the Canton Gas 
 Light and Coal Company; the Dueber Watch Case Company, 
 the American Screw Company; the Bolton Steel Company 
 (now a constituent of the Steel Trust) ; the Alliance Gas Com- 
 pany; the Wrought Iron Bridge Company (a large corpora- 
 tion absorbed by the American Bridge Company) ; the Elec- 
 tric Light and Power Company, the Massillon Valley Coal 
 Company (a large coal-mining corporation in Ohio) ; the 
 Rough Mining Mountain Cdmpany and other corporations. 64 
 In fine, Day's practice was a general corporation practice for 
 railroads, trusts, banks, street railways, gas and electric light 
 companies, coal-mining companies and many kindred corporate 
 concerns. 
 
 Far. from being a noted lawyer, Day was simply a local 
 'corporation attorney; he did not appear in any large corpora- 
 tion actions. When such suits came up, the corporation cases 
 were argued by lawyers of national reputation. In his railroad 
 practice Day usually appeared to contest suits brought for 
 damages for injuries. 
 
 The Case of Mary Birtch. 
 
 One of these cases, giving Day not a very enviable reputa- 
 tion among common folk in Canton, was the action of Mary 
 Birtch against the Wheeling and Lake Erie Railroad. In a 
 wreck near Navarre, Ohio, in 1891, Mary Birtch, sixty-two 
 years old, was one of the passengers hurt ; her spinal column 
 was so severely injured that she could hardly move. She 
 brought suit for $10,000 damages. 
 
 When the case came up in 1894 in the Court of Common 
 Pleas at Canton, Day personally appeared as the railroad's 
 counsel to contest her suit. The evidence proved that the 
 
 64 The above facts are to be found in Ibid., Vols. 54 to 58, 60, 62-64, 
 68-69, 70, etc.
 
 UNDER CHIEF JUSTICE FULLER 653 
 
 ties were so rotten that the rails parted and the cars were de- 
 railed. But throughout the trial the proceedings were so con- 
 ducted that the jury became prejudiced against her. Judge 
 McCarthy would not allow her lawyer or her doctors to be 
 present at a physical examination to determine her injuries. 
 The judge allowed the railroad's physician to say that she was 
 faking, and Judge McCarthy himself denounced her in open 
 court as an old fake. The jury gave Mary Birtch a verdict for 
 $65. Her counsel made a motion for a new trial ; this, Day 
 vigorously opposed and the judge denied the application. 
 
 Six weeks later Mary Birtch died. A post-mortem exam- 
 ination by three physicians revealed that her spinal column 
 had been so seriously injured that it had become completely 
 decayed. She had suffered great pain and her death was di- 
 rectly caused by the injury. 
 
 A Five-Cent Judgment. 
 
 A result of the same wreck was the action of William Mc- 
 Lain's Administrator for damages. A young route agent in 
 the postal service, McLain jumped when the cars were de- 
 railed. A snag of a bush along the track penetrated his abdo- 
 men ; peritonitis set in and caused his death. Day appeared in 
 court as attorney for the Wheeling and Lake Erie Railroad, 
 and argued that McLain was guilty of negligence in jumping. 
 The entry in the Appearance Docket at Canton shows that on 
 February 10, 1893, the jury brought in a verdict for five cents 
 damages. A motion on April 7, 1893, f r a new trial was 
 overruled, and each party was ordered to pay its own costs. 
 
 A similar case was that of Frederick Heiman's Adminis- 
 trator vs. the Cleveland Terminal and Valley Railroad Com- 
 pany (at present belonging to the Baltimore and Ohio Rail- 
 road system). Day's firm was counsel for the railroad 
 
 65 See, Appearance Docket, Court of Common Pleas, Stark County, 
 for that year, p. 8024.
 
 654 HISTORY OF THE SUPREME COURT 
 
 company. 00 On March 15, 1898, a verdict for $4,200 was given 
 for the plaintiff. The railroad's motion for a new trial was 
 overruled, but the judge struck $1,700 from the judgment. 
 If the plaintiff had not consented to this the motion for a new 
 trial would have been granted. The State Circuit Court re- 
 versed the decision and remanded the case for a new trial. 
 The judgment in the new trial was only $1,000. 
 
 Death a Part of the Worker's Task. 
 
 Another of many such cases in which Day, or the firm of 
 which he was a member, appeared, was the action of David L. 
 Morgan vs. the Krause (Coal) Mining Company. This cor- 
 poration was represented by Day, Lynch and Day (for so the 
 firm was now constituted). The precedent set in this case is 
 a noted one in Ohio. 
 
 On February 17, 1891, Morgan had been injured by an ex- 
 plosion of fire damp. When his suit came up the Court ex- 
 cluded the evidence of Kline, the mine boss ; if Kline had been 
 allowed to testify, the fact, it was alleged, would have been 
 proved that the mine owners had not supplied safety lamps. 
 The result of this omission of testimony, as well as the fear 
 of other miners to testify (because they might be deprived of 
 their jobs) was a verdict in favor of the company. The Ohio 
 Supreme Court affirmed the action of Common Pleas on the 
 ground that " where the injured party knowingly and delib- 
 erately assumes a risk that leads him into immediate danger, 
 he ought not to have a remedy for injuries arising from perils 
 that are obvious and certain." 7 A characteristic judicial con- 
 struction; the laws decree that employers should provide safe 
 tools and proper precautions, but the judges declare tkat death 
 is a fixed part of a worker's task. 
 
 These are not isolated, but typical, specimens of the uniform 
 kind of cases that Day pleaded for several decades; he was 
 
 66 Appearance Docket, Stark County, etc., Vol, 71 : p. 11,913. 
 
 67 Ohio State Reports, Vol. 53 : 26-43.
 
 UNDER CHIEF JUSTICE FULLER 655 
 
 a regular corporation attorney appearing constantly to contest 
 the claims of workers or their survivors for damages for in- 
 juries causing disability or death. He himself lived in the 
 provincial aristocratic style of the well-paid corporation law- 
 yer ; and if he cherished a latent spark of sympathy for the 
 disfigured, the maimed and crippled, the widowed and or- 
 phaned, it was smothered by the income that he received from 
 railroad and minhig companies. 
 
 Nor is his long record of tenacious pleading against im- 
 poverished, injured or slain workers introduced here aimlessly. 
 It was significant of the type of lawyer often chosen for judge- 
 ships, especially for seats on the Supreme Court of the United 
 States. Chief Justice Waite, Chief Justice Fuller, Justices 
 Swayne, Shiras and others had ascended to their eminence by 
 route of (among other corporation practices) seeking to pre- 
 vent injured workers or the destitute widows or children of 
 the killed from recovering damages. 
 
 One of the most important and insistent series of cases 
 coming up before the courts was that resulting from employ- 
 ers' liability laws. The slaughter of workers in the industrial 
 field was immense, greater in a single year than the most 
 dreadful carnage of the most destructive battle the world has 
 ever known. Nevertheless, the railroad, mining and industrial 
 corporations contested even the mildest legislation designed to 
 compel them to install improved equipment and safety appli- 
 ances, and violated such laws as did exist. 
 
 On the railroads alone, from the years 1888 to 1907, a total 
 of 53,046 railroad employes were killed and more than 800,- 
 ooo were maimed or crippled while at work. 68 Such lawyers 
 
 08 These figures are compiled from the annual reports of the Inter- 
 state Commerce Commission. See particularly the Nineteenth Annual 
 Report of that Commission (1907) giving a tabulation on p. 109. But 
 even these figures give no adequate picture of the full and terrible 
 truth. At a recent hearing in Washington, this fact was brought out : 
 That only such as died within twenty-four hours after accidents, were 
 reported to the Interstate Commerce Commission under the list of 
 deaths. Otherwise, they were included in the roll of " accidents."
 
 656 HISTORY OF THE SUPREME COURT 
 
 as Fuller, Day, Shiras and others had used all of their in- 
 genuity as attorneys to argue the narrowing of the laws ap- 
 plied to workers and, on the other hand, the extension of the 
 rights, privileges and immunities of corporations. And this 
 was the type of lawyer going on the Bench of the Supreme 
 Court of the United States men who had faithfully done 
 their careers of subservient service to the railroad, mining and 
 industrial magnates. After becoming Justices they generally 
 construed laws and handed down decisions precisely in line 
 with what they, as attorneys, had received fat retainers to 
 argue. 
 
 Day, too, was now elevated to a judgeship. Appointed a 
 member of the United States Circuit Court, he sat with Taft 
 (now President of the United States) and Lurton (now a 
 United States Supreme Court Justice). This trio on the Sixth 
 Circuit, handed down delectable decisions refusing time after 
 time, to award damages to destitute workers injured through 
 no fault of their own. 00 Selected by President McKinley 
 solely because he was McKinley's neighbor in Canton and his 
 close personal friend and attorney, Day was appointed As- 
 sistant Secretary of State of the United States, and subse- 
 quently Secretary of State. It was when occupying this post 
 that Day negotiated the generous treaty with Spain by which 
 $20,000,000 was paid to Spain for the already conquered Phil- 
 ippine Islands, and it was Day who arranged the negotiations 
 by which the United States munificiently paid $18 an acre 
 for the Roman Catholic Friar lands in the Philippines a 
 great part of which lands have since been sold by the Govern- 
 ment to the Sugar Trust for $6.50 an acre. 70 This latter fact 
 
 09 See later. Both Taft and Lurton had been railroad attorneys. 
 
 70 The San Jose Estate (Friar lands) of 55,000 acres of Mindoro 
 Island, was sold to E. L. Poole, representing H. O. Havemeyer and 
 associates ; the Isabella Tract of 49,000 acres was taken over by E. B. 
 Bruce, representing the Havemeyer syndicate; and other Friar lands 
 were likewise appropriated. See, " Friar Lands Inquiry," House Com- 
 mittee on Insular Affairs, Feb., 1911 : 40-44.
 
 UNDER CHIEF JUSTICE FULLER 657 
 
 is stated merely for explanatory reasons ; Day had no connec- 
 tion, directly or indirectly, with the sales to the Sugar Trust. 
 
 The Great Boon of " Voluntary Contract." 
 
 Day, as we have said, succeeded Justice Shiras. To give 
 a concrete illustration of the type and circumstances of de- 
 cisions of the Supreme Court of the United States regarding 
 injured workers, let us pick out, for example, a decision written 
 by Shiras just before he left the Bench. 
 
 Injured by a collision, William Voight, an employe of the 
 United States Express Company on the Baltimore and Ohio 
 Railroad, sued for damages. In the lower courts he was suc- 
 cessful. On the ground that when he obtained his job Voight 
 had signed a contract releasing the railroad company from 
 liability, the company appealed. Shiras held that Voight 
 was not compelled to enter into such a contract, but did it 
 voluntarily, secured work by means of it, and that such a 
 contract did not contravene public policy. Only Harlan dis- 
 sented. 71 
 
 Shiras had been counsel for the Baltimore and Ohio Rail- 
 road branch at Pittsburgh, and he well knew that no man could 
 get work unless he signed such a contract. Here, in brief, 
 was the Supreme Court of the United States upholding the 
 power of a corporation to force illegal contracts from men 
 seeking work, or else consign them and their families to hunger 
 and destitution. It gave the corporation the right to say to a 
 worker : " Sign this contract, or starve ; " and then after the 
 worker had been injured, threw him out of court, denying him 
 the paltry damages sued for, caring nothing what became of 
 him or his family. Day was, indeed, a worthy successor of 
 Shiras. 
 
 71 Case of B. and O. R. R. vs. Voight, 176 U. S. Reports, 498.
 
 658 HISTORY OF THE ^UPREME COURT 
 
 Justice Moody Enters. 
 
 The next Associate Justice appointed was William H. 
 Moody of Massachusetts; he took his seat on December 17, 
 1906, succeeding Brown, retired. Born in 1853, Moody, too, 
 was a Harvard graduate ; for sixteen years before his appoint- 
 ment to the Supreme Court he had held a succession of public 
 offices. Associating with the Lodge political machine, he be- 
 came district attorney for the eastern district of Massachu- 
 setts in 1890. Five years were spent in that office, and in 
 1895 ne was elected to Congress. He was appointed Secretary 
 of War on May i, 1902, and on July i, 1904, succeeded Knox 
 as Attorney-General of the United States. Like Knox (Steel 
 Trust attorney), Moody made a frantic appearance of seeking 
 the dissolution of the trusts, but it was merely an illusory pro- 
 ceeding quickly degenerating into a travesty. 
 
 Moody was a follower and close friend of Senator Henry 
 Cabot Lodge, who has been viewed with sincere and unbroken 
 approval by the great corporate interests in Massachusetts. 
 Lacking the support of these interests, no man could expect to 
 be sent to the United States Senate, or elected or appointed to 
 any other public office. Even the much-bepraised Hoar, 
 Lodge's predecessor, had been attorney for railroads and for 
 the most powerful industrial concerns. 72 Lodge's associate 
 United States Senator from Massachusetts was Murray Crane, 
 an extensive manufacturer, who as Governor of that State had 
 recommended and ratified legislation by which the Boston and 
 Albany Railroad was turned over to the Vanderbilts under a 
 perpetual lease. This railroad was built largely by the State, 
 but private capitalists owned part of the stock. Among the 
 large stockholders was Murray Crane, but when elected Gov- 
 ernor he had virtuously transferred his holdings to his brother 
 
 72 Hoar represented the Worcester and Nashua Railroad Company, 
 the Amoskeag Manufacturing Company, etc. 131 Mass. Reports, 495 : 
 V Supreme Court Reporter, 441, etc.
 
 UNDER CHIEF JUSTICE FULLER 659 
 
 and partner, Zenas Crane. 73 The methods by which the 
 State's interests were surrendered in this transaction and also 
 in the selling of the State's stock in the Fitchburg Railway to 
 the Boston and Maine Railroad, caused a blare of public 
 scandal. 74 
 
 At no time could Senator Lodge be accused of violating his 
 signal fidelity to the interests of the Massachusetts manufac- 
 turers and railroad corporations. Unvaryingly he advocated 
 measures for their benefit, nor did he suffer himself to prove 
 false to his class interests by supporting working-class legisla- 
 tion. In the Massachusetts factories an immense number of 
 child laborers have been employed under peculiarly degener- 
 ating conditions, but neither Lodge nor Holmes nor Moody 
 ever even whispered a protest. Foremost of all corporations 
 controlling the politics of Massachusetts are the Boston and 
 Maine Railroad and the New York, New Haven and Hartford 
 Railroad ; they have invested themselves with the practical 
 veto power over nominations or appointments to public office. 
 
 It was Lodge, the personal friend of Roosevelt, and his 
 
 73 In the list compiled by the Interstate Commerce Commission of 
 the ten largest stockholders of railroads, in 1908-1909, Zenas Crane 
 appeared as the owner of 150,000 shares of common, and 10,000 shares 
 of preferred, stock of the Chicago, St. Paul, Minneapolis and Omaha 
 Railroad. 
 
 71 Lucius Tuttle, President of the Boston and Maine Railroad, domi- 
 nated New England politics. That this railroad corrupted legislatures 
 is a matter of record. We will give an excerpt from a speech made 
 by former United States Senator Chandler, at Laconia, N. H., on 
 August 17, 1910; what he said of New Hampshire was equally true of 
 Massachusetts, so far as the railroad was concerned : 
 
 " Railroad passes and railroad money dominate the State, and the 
 governor, councillors, senators and representatives are the mere agents 
 in their offices of the two great railroads. 
 
 " It may be said truthfully that nearly all the lawyers in the State 
 are influenced by one or the other railroad companies, either by annual 
 passes alone, or by such passes and money. 
 
 " New Hampshire has been one of the greatest victims of corporation 
 rule, mainly governed in its industrial, political and government career 
 by the Boston and Maine Railroad. There has been added to this in- 
 fluence the Amoskeag Manufacturing Company of Manchester, which, 
 when it has not been adjusting its disputes with the railroads, has been 
 joining with the railroads in taking possession of the State government."
 
 66O HISTORY OF THE SUPREME COURT 
 
 mouthpiece in the Senate, who induced Roosevelt to appoint 
 Moody Attorney-General, and it was Lodge who, when Moody 
 retired from the Supreme Court of the United States, in 1910, 
 did Moody the friendly service of rolling a bill through Con- 
 gress granting Moody a pension of $12,500 a year. When, 
 later, in the same year, Lodge's campaign for reelection met 
 with vigorous opposition, Moody displayed his gratitude by 
 writing a letter to the members of the Massachusetts Legisla- 
 ture urging them to reelect Lodge. ". . . We have, in the 
 person of Senator Lodge," Moody wrote, " one of the best 
 equipped men in public life; in fact, I think he is the most 
 competent legislator in the country. . . ." 
 
 We shall now proceed to consider in aggregate some of the 
 more important of the mass of decisions of the Supreme Court 
 of the United States during this period. It will be under- 
 stood that some of these decisions were handed down before 
 the different times when Holmes and Moody went on the 
 Bench, but their participation is included in the various later 
 decisions. 
 
 75 Ostensibly a letter from a " constituent to his representatives 
 solely," this letter was immediately published in every Boston news- 
 paper and in the press generally throughout the State.
 
 CHAPTER XVI 
 
 THE SUPREME COURT UNDER CHIEF JUSTICE FULLER 
 (CONTINUED) 
 
 Oblivious to criticisms and the misunderstandings, the Su- 
 preme Court proved that in one essential respect it was not the 
 reactionary institution that in certain quarters it was charged 
 with being. Its critics were accustomed to declaim against it 
 as a small oligarchy of doddering, obdurate old men, blind 
 or at least insensible to all of the signs and demands of prog- 
 ress, and determined to impede, thwart or annul every mani- 
 festation of progress. This criticism, at once amusing and 
 fallacious, is still current. 
 
 The Court's Ultra-Progressiveness. 
 
 In reality the Supreme Court in the specific point in ques- 
 tion, was the most alert, adaptable, ultra-progressive institu- 
 tion in the United States. Frosted with heavy years most 
 of its members truly were ; but in depth of mind, in clarity of 
 vision and grasp of affairs no body of men were less archaic 
 or (in the particular referred to) more keenly responsive to 
 the demands of altering conditions as required by the domi- 
 nant division of the ruling class. This was their one re- 
 markable ability an ability to be estimated and appreciated 
 at its high historic worth. 
 
 Bred under laws applying to an obsolete, bygone economic 
 period, the Supreme Court majority nevertheless refused to al- 
 low that stultifying code of laws to stand in the way of indus- 
 trial evolution. They declined to interfere with the orderly 
 transition of society from an older, outworn, crumbling stage 
 
 661
 
 662 HISTORY OF THE SUPREME COURT 
 
 to a newer, more modern era. At a time when legislatures 
 and Congress were fatuously bent upon seeking to revivify 
 historic anachronisms, the Supreme Court of the United States 
 was the one body that thrust those reactionary laws aside and 
 facilitated industrial progress. 
 
 The age of unrestricted competition had passed, and the 
 age of huge combinations of capitalists in concentrated cor- 
 porations had supplanted it. Anarchy in production had been 
 to a large extent superceded by systematic trust control. But 
 many statutes, relics of the era when the still powerful middle 
 class was vainly and confusedly trying to stop the growth of 
 the trusts, remained as unrepealed legislation. 
 
 Agitation to enforce these anti-trust laws was continually 
 carried on, although in a declining ratio as the middle-class 
 organization grew less influential. Two concrete facts, how- 
 ever, obstinately protruded, conflicting side by side : One fact 
 was that the trusts were growing increasingly more powerful. 
 That the laws, markedly so the Federal anti-trust act, forbade 
 the existence of those trusts, was the other fact. 
 
 But one of these was only the semblance of a fact, or rather 
 the shadow of what had been a fact. Unrestrained compe- 
 tition in industry, with its warfares and its many deficiencies, 
 was largely become a memory. It had ceased to be a fact, yet 
 in the lifeless, bookish thing called statute law it was believed 
 that it could be resurrected. The skeleton alone remained ; 
 breath and spirit had departed. Combination, however, was 
 a living fact, and a mighty one ; if anyone doubted its obvious 
 economic superiority over its predecessor, competition, he at 
 least could not but be impressed by its immense energy, sys- 
 tem, power and resources. 
 
 The Existing Class War. 
 
 Three great groups now developed from the conflict within 
 society. One of these was that of the trust magnates, with
 
 UNDER CHIEF JUSTICE FULLER 663 
 
 an interassociation in ownership of transportation systems, in- 
 dustries, mines and other resources. The wealth of this group 
 was, computed by usual reckonings, almost illimitable ; its 
 power stupendous. But its numerical strength was small, and 
 diminishing as its individual and collective wealth increased, 
 for the big trust magnate warred upon the small not less than 
 the trust upon the petty manufacturer. 
 
 The second group was that of the middle class. Many of 
 the former strongest factors in this class the small manu- 
 facturers, jobbers, etc., had either become absorbed in the 
 trusts or had been driven from business. If the inroads of the 
 trusts had ended here, the middle-class agitation would largely 
 have died away from sheer inanition. Connected, however, 
 with the middle class was a huge number of retail dealers. As 
 the profits of the trusts piled up, the magnates necessarily had 
 to look about for new channels of investment. The only re- 
 maining field, therefore, was the retail trade. In this, some of 
 the trusts, notably the Tobacco Trust, began to establish their 
 own stores, selling direct to the consumer. Naturally, this 
 new move filled the shopkeepers everywhere with the most vio- 
 lent alarm, and gave the anti-trust agitation a new impetus. 
 
 Aligned with the middle class were the agricultural element 
 and a large section of uninformed workers. Altogether, the 
 forces massed in the array opposed to the trusts were numer- 
 ically great, and formed an overpowering political majority. 
 This explains why legislators, themselves often tools of trusts, 
 were unwilling to risk their own political extinction by repeal- 
 ing laws aimed at the trusts. 
 
 The third group was that of organized labor. On the po- 
 litical field its views and sentiments and actions at the time 
 were similar to those of the middle class, although the two 
 classes had nothing in common. Only that fragment of the 
 workers comprised in the Socialist ranks was then clear sighted 
 enough to understand that the trusts were a natural outgrowth 
 of evolutionary conditions.
 
 664 HISTORY OF THE SUPREME COURT 
 
 But between trusts and labor unions a deadly conflict was 
 in progress. With their enormous issues of watered stock, the 
 trusts sought to augment their profits in every way in order 
 to give that stock value. Added to this fact was the ever-pres- 
 ent principle of the employer aiming to buy his labor as cheap 
 as possible. The labor unions were an obstacle to this pro- 
 gramme of merciless exploitation. On the other hand, the 
 reverse principle operated, the laborer trying to get the utmost 
 for his labor power. While maintaining their right to carry 
 on industry and transportation in modern, compact, concen- 
 trated corporations, the trusts denied the workers' right of 
 organizing along modern lines. The trusts aimed at nothing 
 less than the destruction of the labor unions. 
 
 An Absolute Institution. 
 
 With this preliminary, we can now begin to get a clear con- 
 ception of the fundamental meaning of the edicts of the Su- 
 preme Court of the United States. If the legislators were 
 afraid to recognize inevitable changes and enact laws in con- 
 formity with them, the Supreme Court -was not. It had no 
 purblind constituents to appease, nor did it have to make ex- 
 planations to anyone. It was, as its title implied, supreme, 
 and could decree law as it pleased. At the proper time it 
 could even, as some of its apparent anti-trust decisions indi- 
 cated, serve the ulterior purposes of the magnates in subtler 
 forms. It could put trusts to the trouble of nominally dis- 
 solving so that a cry of " disturbed business conditions " could 
 be set up, and thus give legislators a pretext to pass laws legal- 
 izing trusts. 
 
 As for the labor unions the Supreme Court did not have to 
 depend upon their favor or votes ; the Supreme Court could 
 strike at them without fear of retaliation ; in truth, that ex- 
 alted tribunal held workers in supreme contempt. For good 
 reason, The trust magnates saw to it that every important post
 
 UNDER CHIEF JUSTICE FULLER 665 
 
 was filled by representatives of their own class, but the bulk 
 of the voters were deluded into voting their avowed enemies 
 into office year after year. It was their votes that put capital- 
 ist Presidents in the White House, and it was those Presidents 
 who appointed Supreme Court Justices. Not a member of 
 the Supreme Court was appointed unless his views and asso- 
 ciations were known and canvassed in advance, and his record 
 closely scanned by the great capitalist interests. 
 
 The Sugar Trust had been, as we have seen, given a bill of 
 immunity, and at about the same time the Supreme Court had 
 sent Debs to jail. A series of decisions followed which fur- 
 ther allowed the exemption of the trusts. True, a few de- 
 cisions were handed over seemingly antagonistic to certain 
 trusts and combinations. But in practical application they had 
 no such effect. At the same time, other decisions of the Su- 
 preme Court struck hard at labor-union leaders and labor- 
 union measures and tactics, while permitting railroad corpora- 
 tions to pursue toward workers what had hitherto been held to 
 be unfair and illegal methods. We shall give the substance 
 of the more important of these decisions. 
 
 Anti-Trust Measures Extinguished. 
 
 Anti-trust acts in thirteen States were wiped off the statute 
 books by the decision of the Supreme Court in the' case of 
 Connolly vs. the Union Sewer Pipe Company, on March 10, 
 1902. The action involved the constitutionality of an Illinois 
 statute; Harlan delivered the court's opinion pronouncing the 
 law void ; McKenna dissented. 1 
 
 Shortly after this the Supreme Court expounded another de- 
 cision in which it revealed that it was fully alive to the require- 
 ments of industrial conditions. The case was that of the Car- 
 negie Steel Company vs. the Cambria Iron Company. The 
 suit arose over a contention as to whether Carnegie was en- 
 
 1 184 U. S. Reports, 540.
 
 666 HISTORY OF THE SUPREME COURT 
 
 titled to a valuable patent (the Jones invention) for manufac- 
 turing steel. The Supreme Court decided for Carnegie, but 
 Justices White, Fuller, Harlan and Brewer concurred in a 
 dissenting opinion in which they concluded with the significant 
 statement that by thus being allowed to exact tribute from 
 the steel and iron making industry, Carnegie was in a position 
 to hinder the operations of other steel makers from keeping 
 " pace with the natural evolution of modern industrial develop- 
 ment." 2 
 
 The Carnegie Company was a main part of the Steel Trust, 
 and one of its attorneys in the foregoing case" was Philander 
 C. Knox, of Pittsburg. Knox had been the counsel for the 
 Carnegie Company. Back in 1894 he had pleaded for that 
 company when it was proved that the company, in its contracts 
 to supply armor plate for warships had " perpetrated mani- 
 fold frauds, the natural tendency of which was to palm off 
 upon the Government an inferior armor whose inferiority 
 might perchance appear only in the shock of battle and with 
 incalculable damage to the country." 3 According to the re- 
 luctant testimony of A. J. Cassatt, president of the Pennsylva- 
 nia Railroad, the Carnegie Company had been continuously re- 
 ceiving illegal rebates on a vast scale from the railroads. 4 
 
 Knox had also been attorney for the Pittsburg, Bessemer 
 and Lake Erie Railroad, the Pittsburg, Fort Wayne and Chi- 
 cago Railroad, the Pittsburg and Birmingham Traction Com- 
 pany, and for other powerful corporate clients. From the 
 Carnegie Company alone Knox was reputed to have received 
 a retainer of $50,000 a year. When a Congressional Commit- 
 tee exposed the armor-plate frauds, Knox, as we have said, 
 proved his skill by diverting all attempts at prosecution. 
 
 2 185 U. S. Reports, 409. My italics. G. M. 
 
 3 House Report No. 1468, Fifty-third Congress, Second Session. The 
 revelations of the armor-plate frauds produced a deep sensation at this 
 time. 
 
 4 By receiving rebates from railroads, large corporations and trusts 
 were easily able to undersell and undermine competitors. Rebating was 
 illegal and punishable.
 
 UNDER CHIEF JUSTICE FULLER 667 
 
 The nucleus of the Steel Trust, formed in 1901, was the Car- 
 negie Company, and the two successive Presidents of the Steel 
 Trust were Schwab and Corey, who, with Cline, had been su- 
 perintendents of the Carnegie, Plant in 1894. Of Cline, Corey 
 and Schwab the Congressional investigating committee had 
 reported, ". . . The unblushing character of the frauds to 
 which these men have been parties and the disregard for truth 
 and honesty which they have shown in testifying before your 
 committee, render them unworthy of credence." 5 
 
 The Eminent Mr. Knox. 
 
 Andrew Carnegie, then the principal stockholder of the Car- 
 negie Steel Company, admitted in his testimony before the 
 (Stanley) House Investigating Committee, on January n, 
 1912, that, in 1901, he had written a letter to President Mc- 
 Kinley recommending Knox's appointment as Attorney-Gen- 
 eral of the United States. Carnegie further testified that 
 Knox had been one of the attorneys of the Carnegie Steel 
 Company from 1890 (the date of the passage of the Sherman 
 anti-trust law) to the year 1901, and that Judge Reed, Knox's 
 law partner, had become a member of the Directorate of the 
 Steel Trust, formed in 1901. 
 
 These were some of the antecedents of Knox, who, in 1901, 
 became Attorney-General of the United States. On the even- 
 ing of March 22, 1901, J. Pierpont Morgan, the organizer and 
 head of the Steel Trust, called upon President McKinley at the 
 White House. The next morning McKinley announced that 
 the Attorney-General would be Knox. Petitioning the Senate 
 judiciary committee not to confirm the appointment, the Anti- 
 Trust League pertinently inquired : 
 
 " Is it proper for a lawyer to appear against his former cli- 
 ents? Can a lawyer willing to appear against his former 
 clients be trusted to prosecute them if guilty? The charges 
 
 <* House Report No. 1468, Fifty-third Congress, Second Session.
 
 668 HISTORY OF THE SUPREME COURT 
 
 we have filed refer not only to his dereliction of duty in the 
 cases we have filed with him, but also bear upon his admit- 
 ted intimate relations and his collusion with the criminal prac- 
 tices of the armor-plate trust which, we are informed, robbed 
 the Government of millions of dollars during the time Mr. 
 Knox was their associate and adviser." 
 
 Having thus shed illumination on Knox's career, and the 
 great corporate interests he had represented, we shall be in a 
 better position to understand why it was that he, as Attorney- 
 General, brought suit to have the Northern Securities Company 
 declared illegal. 
 
 The Northern Securities Case. 
 
 In 1874, the Minnesota Legislature had passed an act pro- 
 hibiting the consolidation of parallel or competing railroads. 
 In 1901, James J. Hill, the controlling magnate of the Great 
 Northern Railroad and part owner of the Northern Pacific 
 Railroad, set out to get control of the Chicago, Burlington and 
 Quincy Railroad. In retaliation, competing magnates began 
 to buy Northern Pacific Railroad stock which would give them 
 a voice in one of Hill's own railroads. 
 
 A great warfare in the stock market resulted. The outcome 
 of this conflict among the magnates was a merging of interests. 
 Morgan's idea of a holding company with $400,000,000 capi- 
 tal to combine the interests of both the Great Northern and the 
 Northern Pacific railroads was carried out. The new corpora- 
 tion was called the Northern Securities Company. 
 
 It is not possible to ascertain the secret antagonisms or 
 other underlying purposes then at work as the reasons for cer- 
 tain moves. Between Morgan's Steel Trust and Hill's inter- 
 ests there was a direct connection of large magnitude. Hill 
 owned iron ore deposits of vast value near Lake Superior; 
 testifying subsequently before the (Stanley) House Investi- 
 gating Committee, on February 12, 1912, Hill said that he
 
 UNDER CHIEF JUSTICE FULLER 669 
 
 had bought these properties for $4,050,000. He had leased 
 69,000 acres of the iron ore deposits to the Steel Trust which 
 thus far by the year 1912 had worked only 39,000 acres. 
 In the remaining 30,000 acres which will revert to Hill when 
 the Steel Trust surrenders its lease (in 1913), there were, Hill 
 testified, 500,000,000 tons of ore left, which he valued at- $750,- 
 000,000. We state these facts merely as facts ; what relevancy 
 they had to the Northern Securities action we do not know. 
 
 President Roosevelt ordered Knox to proceed against the 
 Northern Securities Company. Knox did so, but it was made a 
 civil proceeding. The question frequently asked in observant 
 circles was this : Did certain magnates have a secret motive for 
 breaking up the Northern Securities Company? On March 
 14, 1904, the Supreme Court of the United States declared the 
 corporation an illegal one in restraint of commerce and ordered 
 its dissolution. 
 
 Illegal it was thus pronounced ; it followed, therefore, that 
 under the law those guilty could have been criminally prose- 
 cuted and sent to prison. Debs had been thrown in prison on 
 an extraneous, manufactured charge. But a labor leader was 
 on a vastly different plane in the application of law from a mag- 
 nate, or a galaxy of magnates. Not the slightest attempt was 
 made to prefer criminal action against the organizers of the 
 Northern Securities Company. Against this fact Justice 
 
 Northern Securities Company vs. U. S., 193 U. S. Reports, 197. 
 
 As illustrating the possibilities of secret bargaining, the statements 
 of Wharton Barker, a Philadelphia banker, conservative political econo- 
 mist, and at one time a middle-class ("middle of .the road") candidate 
 for the Presidency, may here be referred to. Barker testified before the 
 United States Senate Committee on Interstate Commerce, on November 
 29, 1911, that he had been told by one of the Wall Street banking mag- 
 nates that in the campaign of 1904, when Roosevelt was a candidate 
 for the Presidency, that the Wall Street interests had made a bargain 
 with Roosevelt on the railroad question. "He is to 'holler' all he 
 wants to," the magnate was quoted as saying, "and by and by not 
 immediately, but in due time a railroad bill is to be recommended by 
 the President," which was to abolish rebates, free passes, legalize pool- 
 ing, and permit an increase of capital stock. Roosevelt ridiculed this 
 testimony.
 
 670 HISTORY OF THE SUPREME COURT 
 
 Holmes protested in his dissenting opinion when he said : " It 
 is vain to insist that this is not a criminal proceeding. The 
 words cannot be read one way in a suit which is to end in fine 
 and imprisonment, and another in one which seeks an injunc- 
 tion. I am no friend of artificial interpretations. ... So 
 I say we must read the words before us as if the question were 
 whether two small exporting grocers should go to jail." 
 
 Prisons for the Poor Only. 
 
 Here, indeed, was a vital and striking feature of the Su- 
 preme Court's decisions, even when those decisions were nom- 
 inally adverse to the trusts. The prisons throughout the coun- 
 try were filled with convicts whose only real crime was that 
 they were poor. Poverty, unlike wealth, commanded no re- 
 spect from the courts. 7 For the slightest violation of law, the 
 helpless and uninfluential were consigned to prison, more often 
 than not for long terms. But not a single railroad director, 
 nor a solitary trust magnate has ever been condemned to prison 
 for violating the anti-trust laws. 
 
 Given the alternative of inflicting fine and imprisonment or. 
 both, the courts have done nothing more than sentence the 
 trust offender to a fine. This has been a recognized travesty ; 
 to a corporation extorting hundreds of millions of dollars in 
 profits, a fine of a few thousands is ludicrous. Moreover, the 
 
 ~ The truth of this generalization is so obvious and so clearly sustained 
 by a vast multitude of examples, that it requires no elucidation here. 
 Speaking on this point, United States District Attorney Henry A. Wise, 
 in an address at New York, on November 14, .1911, told how rich 
 smugglers and thieves had been let off with a fine by the courts, and 
 poor offenders sent to prison. " But," he observed, " it has been difficult 
 to send the rich to jail. The judge evidently thinks that they should 
 have plenty of warning, and in case after case of this kind, I have 
 howled in vain for jail sentences." Among other examples, Wise in- 
 stanced the case of the Sugar Trust. It had defrauded the Government 
 of vast sums, yet no one had been inculpated except " dead men and 
 $15 a week clerks." After being forced to make certain restitution to 
 the Government, the Sugar Trust had recouped itself by raising the 
 price of sugar.
 
 UNDER CHIEF JUSTICE FULLER 
 
 amounts of the fines can always be abundantly recouped from 
 the reduced wages of the workers or from consumers in added 
 cost of necessaries. Even in criminal matters, apart from con- 
 spiracies to restrain commerce, this is what happened, accord- 
 ing to Attorney-General Moody : 
 
 " But where the accusation is a grave one, and the accused 
 has abundant means, the ingenuity of his counsel opens many 
 avenues of appeal which ultimately reach the Supreme Court, 
 raising there a constant succession of trivial questions with 
 consequent delays which may retard or even defeat the pur- 
 poses of justice." 8 
 
 The Beef Trust Ignores the Supreme Court. 
 
 In the Supreme Court's pretended application of anti-trust 
 laws the soberest judgment can direct nothing else than a pro- 
 longed farce, perhaps relieved by the stern tragedy of fining 
 multimillionaires a few thousand dollars. In the Beef Trust 
 case, the Supreme Court, on January 30, 1905, affirmed an in- 
 junction restraining Swift and other packers from carrying on 
 a conspiracy of combination. 9 No doubt the packers have 
 treasured the writ as a curious yet harmless souvenir ; the in- 
 junction has become faded, but the Beef Trust has been joy- 
 ously pursuing the same old extortionate line of business, as is 
 proved by 'more actions recently brought against it by the Gov- 
 ernment. 10 
 
 8 Annual Report of the U. S. Attorney-General for 1905, p. 6. 
 
 Swift vs. U. S., 196 U. S. Reports. 375. 
 
 10 On May 19, 1902, the Government began an action against the Beef 
 Trust. The packers interposed every possible legal obstacle. On July 
 i, 1905, however, the Federal Grand Jury of Chicago indicted seventeen 
 individuals and five corporations. In 1906, Judge Humphrey gave them 
 immunity because they had testified in an investigation conducted by 
 the Bureau of Corporations. The Government continued its actions, 
 and there were more years of law delay. Finally, on September 12, 
 1910, new indictments were found against Armour, Swift, Morris and 
 other packers. Just as the packers were about to be put on trial, in 
 November, 1911, they raised the question that the Sherman anti-trust 
 act was unconstitutional and they secured release under bonds or writs
 
 672 HISTORY OF THE SUPREME COURT 
 
 Immunity for Trust Magnates. 
 
 Next came that illuminating series of decisions in the Gen- 
 eral Paper Company and Tobacco Trust cases, in March, 1906. 
 The Supreme Court held that immunity was extended to trust 
 magnates who testified, but declared that the corporation could 
 be punished. 
 
 Quite true, this decision was based upon an act passed by 
 Congress in 1903, the object of which was clearly to give im- 
 munity to trust owners. 11 With alacrity the Supreme Court 
 accepted this law as constitutional ; it saw nothing null and 
 void in the granting of exemptions to trust heads for acts for 
 which they personally were responsible and from which they 
 were personally benefiting to the extent of billions of dollars. 
 A corporation cannot be imprisoned ; there was something 
 screamingly funny in the solemn mummery of inflicting a nom- 
 inal fine upon a corporation capitalized at hundreds of millions 
 of dollars. 
 
 Anti-Railroad Acts Effaced. 
 
 The power of the States to pass acts fixing railroad rates 
 was swept aside by a Supreme Court decision, of March 22, 
 1908, which declared unconstitutional railroad rate laws passed 
 by the States of Minnesota and North Carolina. Justice 
 
 of habeas corpus. After nine years' delay, the Supreme Court of the 
 United States was then appealed to for a stay of their trial. On De- 
 cember 5, 1911, this application was refused. 
 
 11 Section 3 of the Elkins act of 1903 gave immunity to testifying 
 witnesses. All that a magnate had to do was to give some slight testi- 
 mony, and this automatically made him exempt from prosecution. This 
 bill, as is seen by the name, was introduced and pushed by the notorious 
 Stephen B. Elkins, whose fraudulent claim for nearly two million acres 
 had been validated by the Supreme Court and who was himself an 
 extensive railroad magnate. The principle was the same as if a burglar, 
 highwayman or murderer after having given testimony was declared 
 immune from prosecution. And it may be said that what with their 
 methods of oppression of wage workers and extortions the railroad 
 corporations and trusts directly and indirectly caused an immense num- 
 ber of deaths.
 
 UNDER CHIEF JUSTICE FULLER 673 
 
 Peckham, erstwhile trustee of the Mutual Life Insurance 
 Company, associate of numerous magnates, wrote this de- 
 cision. 1 - Peckham also it was who a little previously wrote 
 a decision declaring unconstitutional a tax levy of the City 
 of Chicago on various utility corporations, 13 and it was Peck- 
 ham, too, who wrote a decision relieving the Smelter Trust 
 of a tax imposed by the State of Colorado on its capital stock ; 
 such a tax, said the Supreme Court, was unconstitutional. 14 
 
 Another characteristic decision of the Supreme Court was 
 that on December 15, 1909, relieving E. H. Harriman from 
 testifying in an investigation carried on by the Interstate Com- 
 merce Commission. 15 This was the period when Harriman, 
 by the most extensive system of fraudulent railroad manipula- 
 tion and bribery, was acquiring the immense fortune that he 
 left. The Interstate Commerce Commission was thus balked 
 in its effort to learn whether Harriman and his associates had 
 profited by sales of $120,000,000 of stocks to the Union Pa- 
 cific Railroad of which they were directors. 
 
 But the Commission discovered enough to report in detail 
 upon the extent of the frauds and how those frauds were 
 accomplished. It reported that in the manipulation of the 
 Chicago and Alton Railroad alone, nearly $60,000,000 had 
 been stolen by Harriman and his associates. To themselves, 
 Harriman and partners sold $32,000,000 of bonds (represent- 
 ing essentially no improvements,) at 65. Then Harriman in- 
 duced the New York Legislature to pass an act, which Gov- 
 ernor Theodore Roosevelt signed, authorizing savings banks 
 
 12 209 U. S. Reports, 12. Justice Harlan was the only dissenter. 
 
 13 Justices Hclmes and Moody dissented. 
 
 14 Fuller, Harlan, Holmes and Moody expressed dissent. 
 
 15 Harriman vs. Interstate Commerce Commission, 211 U. S. Reports, 
 407. Former United States Senator John C. Spooner was one of Har- 
 riman's counsel in this action. Justices Day, Harlan and McKenna 
 dissented. Moody, not having heard the argument, took no part in the 
 decision. Spooner and Joseph H. Choate recently appeared (it may be 
 observed here) for the Steamship Trust as the trust's counsel in an 
 action brought by the Government in the United States Circuit Court 
 against the trust as an illegal combination.
 
 6/4 HISTORY OF THE SUPREME COURT 
 
 to invest in those bonds. The price of the bonds was then 
 put up from 82^ to 94. This is but one of the various 
 methods described by the Interstate Commerce Commission. 10 
 
 By its decision the Supreme Court virtually protected Har- 
 riman at the identical time he had consummated his gigantic 
 frauds in the manipulation of the Chicago and Alton, the Illi- 
 nois Central, the Union Pacific and the Southern and the 
 Central Pacific and allied railroads. 
 
 The Supreme Court had declared the Northern Securities 
 Company illegal. Why did it not declare the Harriman com- 
 bination owning parallel lines likewise illegal ? The Interstate 
 Commerce Commission reported that the Union Pacific and 
 parallel roads were held by the Harriman combination and 
 that those allied railroads had in force a specific division of 
 freight traffic, so that each should get a certain share. 17 This 
 meant nothing more or less than an illegal combination. 
 
 An "Illusory" Decision. 
 
 Still another interesting decision of the Supreme Court 
 was that in the " Commodities Clause Cases." The Hepburn 
 Act of 1906 made it unlawful for any railroad company to 
 transport products of any mines in which it might have an 
 interest, direct or indirect. This law was aimed at the Coal 
 Trust; it was notorious that the coal-carrying railroads con- 
 trolled the coal deposits. The Supreme Court did not pro- 
 nounce this law unconstitutional, but it decided on May 3, 
 1909, in favor of the railroads on this ground : That the 
 prohibition did not apply to the transportation of commodities 
 
 16 For the full facts of Harriman's enormous thefts, see, Report No. 
 943 of the Interstate Commerce Commission, " In the Matter of Con- 
 solidations and Combinations," etc., pp. 320-345. The Chicago and 
 Alton transaction is described in pp. 340-345. The Commission stated 
 that liabilities of $113,894,000 were placed upon the Chicago and Alton 
 Railroad which had originally cost approximately $58,000,000. Yet not 
 a dollar of tangible property had been added. P. 342. 
 
 " Ibid., 345-346.
 
 UNDER CHIEF JUSTICE FULLER 675 
 
 by another corporation the only interest of which lay in its 
 ownership of capital stock of coal-mining corporations " at the 
 time of such transportation." 18 
 
 The exalted tribunal chose to make itself the subject of 
 general criticism by ignoring the obvious fact that the way 
 corporations control subsidiary corporations is by owning a 
 majority of their capital stock. 
 
 Attorney-General Wickersham denounced the decision. 
 " If," he wrote, " the prohibition of the statute can be success- 
 fully evaded by the simple device of transfer of ownership of 
 property to a corporation, all of whose stock shall be owned 
 or controlled by the carrier, Congress should amend the statute 
 so as to make it an effectual, and not merely an illusory, pro- 
 hibition, or else repeal it." 19 
 
 These are a few examples of decisions selected from a mass. 
 
 On the other hand, the Supreme Court of the United States 
 demonstrated a very different attitude toward cases affecting 
 the rights or welfare of the working class. 
 
 Shorter Hours Denied Bakeshop Workers. 
 
 After protracted agitation, the labor unions finally succeeded 
 in getting the New York Legislature to pass an act making 
 the lot of bakeshop workers more tolerable by prescribing a 
 ten-hour law. The master bakers contested this law up to 
 the Supreme Court of the United States. That Court, on 
 April 17, 1905, declared it unconstitutional. 
 
 On what ground? The Supreme Court held it unconstitu- 
 tional on the ground that it " curtailed liberty of contract." 
 The austere tribunal was extremely solicitous about the right 
 
 18 United States vs. Delaware & Hudson Company; United States vs. 
 Erie Railroad Company; United States vs. Central Railroad of New 
 Jersey ; United States vs. Delaware, Lackawanna & Western Railroad 
 Company ; United States vs. Pennsylvania Railroad Company ; United 
 States vs. Lehigh Valley Railroad Company. 213 U. S., 366. 
 
 19 Annual Report of the Attorney-General for 1009: p. 4. *
 
 676 HISTORY OF THE SUPREME COURT 
 
 of the worker to contract to work as long as he " pleased " in 
 filthy, torrid cellars, for a miserable wage. 
 
 Who, it may be inquired, wrote this memorable decision? 
 Justice Peckham. To Peckharn, Chief Justice Fuller and the 
 three other concurring Justices it was clear that " the freedom 
 of master and employe to contract with each other in relation 
 to their employment and in defining the same, cannot be pro- 
 hibited or interfered with without violating the Federal Con- 
 stitution." 20 Now, by gracious leave of the Supreme Court 
 of the United States, the boss bakers could make their drudges 
 sweat in underground holes eighteen hours of the twenty- 
 four, if the aforesaid drudges, driven to it by hunger, would 
 so contract. " Liberty of contract " is a precious phrase. The 
 Supreme Court had thrown its protection around Harriman 
 when, after accumulating a vast fortune by fraud, he was seek- 
 ing to protect his criminal transactions from too sharp an 
 official inquiry. But it refused to extend the slightest pro- 
 tection to overworked wage earners in bakeshops. Back these 
 were driven by the Supreme Court's edict to their slavery, 
 without any prospect of bettering their condition. 21 
 
 The Fourteenth Amendment 
 
 The most noteworthy feature, however, in this decision 
 applying to bakeshop workers was that the law was declared 
 unconstitutional under the Fourteenth Amendment. 
 
 Now this amendment had been one of the amendments 
 adopted to secure the full freedom of Negroes, and to safe- 
 
 20 Harlan, White, Day and Holmes dissented in Lochner vs. New 
 York. 198 U. S. Reports, 45. 
 
 21 Testifying before the New York State Factory investigating com- 
 mission, on November 14, 1911, Miss Frances Perkins, Deputy Secretary 
 of the Consumers' League, described the vile conditions of many bake- 
 shops in New York City and their causes. ". . . There was every 
 evidence in these bakeries," Miss Perkins related, " that employes were 
 allowed to sleep in the workrooms, some on cots, and some on the 
 bread trays, even. As the men are obliged to work long hours, it is 
 only natural that they should snatch naps whenever possible, and a 
 favorite place is on the sacks of flour. . . ."
 
 UNDER CHIEF JUSTICE FULLER 677 
 
 guard them from the oppressions of their former owners. 
 Yet for more than twenty years the Supreme Court of the 
 United States, in deference to the demands of the ruling class, 
 had consistently emasculated it. The Supreme Court had re- 
 fused to define what the rights of Negroes were ; 22 it had held 
 that the amendment had no reference to the conduct of indi- 
 vidual to individual ; 23 it had declined to give the Negroes the 
 protection of the National Government when it decided that 
 " sovereignty for the protection of rights of life and personal 
 liberty within the States rests alone with the States." 24 This 
 meant that the former slave States were empowered to abridge 
 the liberty of the Negro as they pleased. 
 
 Other decisions, each curtailing the rights of Negroes, fol- 
 lowed. On the ground that it was not warranted by the 
 amendment, an Act of Congress giving Negroes the right 
 co-equally with whites of enjoying inns, public conveyances, 
 theaters and other public resorts, was declared unconstitu- 
 tional. 25 The right of suffrage was neither granted nor pro- 
 tected by the Amendment. 20 A State could curtail the right 
 of trial by jury without violating the amendment. 27 It was 
 further held that a State enactment requiring whites and 
 Negroes to ride in separate railroad cars did not violate the 
 amendment. 28 
 
 22 Davidson vs. New Orleans, 96 U. S. Reports, 194. At this point, 
 adopting the excellent suggestion of Professor W. E. B. DuBois, we have 
 purposely capitalized the word Negro. " Negro," says Professor Du- 
 Bois, " is not the corresponding term to the word white ; black is that 
 term as everybody knows. Negro does not refer to color simply, be- 
 cause there are black people who are not Negroes. Negro is the desig- 
 nation of a race of men just as Indian, Teutonic or Celtic. Historically 
 the word Negro has always been capitalized, and the small letter was 
 only used during the latter days of the slavery agitation when Negroes 
 were classed with real estate." 
 
 23 Civil Rights Cases, 109 U. S. Reports, 3. 
 
 24 U. S. vs. Cruikshank, 92 U. S. Reports, 542. 
 
 25 Civil Rights Cases, 109 Ibid., 3. 
 20 In re Lockwood, 154 Ibid., 116. 
 
 27 L. & N. R. R. Co. vs. Schmidt, 177 Ibid., 230. 
 
 28 Plessy vs. Ferguson, 163 U. S. Reports, 537. The case was that of 
 a quadroon who sued to test the constitutionality of an act passed by
 
 678 HISTORY OF THE SUPREME COURT 
 
 These are a few of the many decisions of the Supreme 
 Court of the United States, the cumulative effect of which 
 was to allow States to nullify guarantees of freedom for the 
 Negro. That many States did this is common knowledge. 
 Finally, the Supreme Court sanctioned the most revolting kind 
 of Negro peonage in the case of Clyatt who had been found 
 guilty in Florida of forcibly keeping Negroes in virtual 
 slavery. Passing on a writ of certiorari, the Supreme Court 
 of the United States ordered the case back for a new trial on 
 the pretext that the trial judge erred in permitting the case 
 to go to the jury. 20 
 
 First the Negro, Then the White Worker. 
 
 With complete indifference, or with outright approval, ac- 
 cording to locality, the white workers had thus seen the Negro 
 stripped of his Constitutional rights and reduced to a position 
 of inferiority in law as well as custom. The Supreme Court 
 of the United States now began to use that same Fourteenth 
 Amendment, designed to protect the Negro, against the whole 
 of the working class, white and black. When this fact became 
 evident, the amazement of the white workers was great. Now 
 they or at least some of them perceived that the rights 
 of no one portion of the workers could be curtailed or oblit- 
 
 the Louisiana Legislature compelling the separation of whites and 
 negroes in trains, etc. Justice Harlan expressed his contempt for the 
 decision of his colleagues. He said it was a pernicious opinion, and that 
 the argument that social equality could not exist between the two races 
 "is scarcely worthy of consideration" (p. 561). A complete reaction- 
 ary, both as regarded the development of the trusts, on the one hand, 
 and that of labor organizations on the other, Harlan was, nevertheless, 
 the one member of the Supreme Court who stood up consistently for 
 the rights of the Negro race. 
 
 ao Clyatt vs. U. S., 108 U. S. Reports, 207. Brewer delivered the 
 Court's decision. In this case, also, Harlan dissented. !' The accused," 
 he said, "made no objection to the submission of the case to the jury, 
 and it is going very far to hold in a case like this, disclosing barbarities 
 of the worst kind against these negroes, that the trial court erred in 
 sending the case to the jury."
 
 UNDER CHIEF JUSTICE FULLER 
 
 crated without the construction being applied to all workers 
 of all races. 
 
 Using the Fourteenth Amendment to load the helpless 
 Negro race with the obloquy of prejudicial law and custom, 
 and to snatch away from the white worker what trivial rights 
 he still had, the Supreme Court availed itself of that same 
 amendment to put corporations in a more impregnable position 
 in law than they had ever been before. This new develop- 
 ment turned up in the case of the Consolidated Gas Company 
 vs. the City of New York. The decision in that case revealed 
 what had so often previously been demonstrated that 
 while in the very act of apparently deciding against a cor- 
 poration, the Supreme Court in reality set another precedent 
 vastly extending intrenched corporate power and legalizing 
 corporate extortions. 
 
 Property Under the Fourteenth Amendment. 
 
 The Legislature of New York, in 1906, had passed an act 
 compelling the Consolidated Gas Company of New York City 
 to reduce its rates to eighty cents per thousand cubic feet. 
 Asserting that this was a confiscatory measure, the company 
 contested its constitutionality. But why was it alleged to 
 be confiscatory? Because, so the company contended, the re- 
 duced rate would not allow a " fair return " upon the invest- 
 ment. 
 
 Let us see what was included in the " investment." In its 
 total capital the company budgeted a certain $12,000,000. 
 Did this amount represent a single dollar that had ever been 
 invested ? No. It represented wholly the value that the com- 
 pany set upon its franchise rights. That is to say, the com- 
 pany capitalized at $12,000,000 the permission it had fraudu- 
 lently obtained to lay pipes in New York City's streets. 30 
 
 30 Many of the original franchises had been secured by fraud and 
 bribery. See, the " History of Public Franchises In New York City,"
 
 68O HISTORY OF THE SUPREME COURT 
 
 The Consolidated Gas Company was a virtual and peculiarly 
 oppressive combination, formed in 1884, of the New York, 
 Manhattan, Harlem, Metropolitan, Municipal and Knicker- 
 bocker gaslight companies, with a total capital of $45,000,000. 
 A New York Senate Committee, called the " Thomas " Com- 
 mittee, was appointed, in 1885, to investigate. It reported 
 that nearly every company had hugely watered its stock ; that 
 although, for example, the Knickerbocker Company claimed 
 $3,104,000 capital, there was nothing to show what capital it 
 actually had ; the records of the tax department showed that 
 it had been paying taxes on only a small proportion of the 
 total with which it was credited. 31 Of the Consolidated Gas 
 Company's alleged $45,000,000 capital, the committee reported 
 that there was less than $20,000,000 of actual investment. 32 
 The company valued its various franchises at $7,781,000, yet 
 it had never paid anything whatever to the city for them. 
 The committee further reported that during ten years the 
 consumers had paid $9,000,000 to the company, and that, "If 
 these ten per cent, dividends should be calculated upon the 
 capital actually paid in by the stockholders it would appear 
 that the gas consumers in ten years have not only contributed 
 such dividend, but a further amount sufficient, in fact, to 
 nearly duplicate the present system of gas supply." 33 
 
 In view of these facts matters of public record it may 
 well be asked whose property had been confiscated? If any 
 had been, it was certainly that of the labor power of the army 
 of workers who had built and who operated the plants, and 
 of the working class of New York City in general constituting 
 the great body of gas consumers. When the contesting case 
 was decided by Judge Hough in the United States Circuit 
 Court in New York he accepted the estimate of the company's 
 
 pp. 92-99, and the " History of Tammany Hall," p. 248, by Gustavus 
 Myers. 
 
 31 Report of the Special Senate Committee, 1885 : pp. 8-9. 
 
 32 Ibid., p. 12. 
 
 33 1 bid., p. ii.
 
 UNDER CHIEF JUSTICE FULLER 68l 
 
 capitalization as being $60,000,000, of which $12,000,000 was 
 put down as representing franchise value, and Judge Hough 
 then declared the eighty per cent, law confiscatory, and issued 
 an injunction against its enforcement. 
 
 A Fact Not to be Overlooked. 
 
 The Supreme Court of the United States reversed that de- 
 cision, assigning Justice Peckham to write the court's opinion. 
 Considering the explosive hidden in Peckham's decision, there 
 was one especially remarkable fact which escaped general at- 
 tention. 
 
 It was this : Only two years before the eighty-cent bill was 
 enacted, Justice Peckham's brother, Wheeler H. Peckham, a 
 corporation lawyer in New York, had given a written opinion 
 in favor of the notorious " Remsen gas grab " bill the passage 
 of which was being vigorously denounced by opponents of the 
 steal. 34 This was a bill giving a comprehensive new franchise 
 as a practical gift to the Consolidated Gas Company. The 
 corruption in the New York Legislature in 1905, as disclosed 
 by the findings of the Legislative Investigating Committee of 
 1910, was appalling. The suppression of the eighty-cent gas 
 bill in I9O5, 35 and the passage in that year of the Niagara 
 water-power bill turning over Niagara Falls power to a cor- 
 poration, resulted, it was estimated, in the distribution of at 
 least $500,000 in bribes. And these were only two of many 
 scandals. In fact, Senator Allds, later the majority leader, 
 hastily resigned, in 1910, from the New York Senate. Imme- 
 diately after, the Senate by a vote of 40 to 9 found him guilty 
 of corruption. 
 
 34 And see details in Chapter XVIII of Wheeler H. Peckham's con- 
 nection with the Standard Electrical Subway Company, and how, in 
 1889, he was active in seeking to get an underground conduit franchise 
 for it. The electric light companies later passed under the control of 
 the Consolidated Gas Company. 
 
 35 The bill, however, was adopted the next year.
 
 682 HISTORY OF THE SUPREME COURT 
 
 A Double-Edged Decision. 
 
 There doubtless was not, it is true, any connection be- 
 tween Wheeler H. Peckham pleading for the gas franchise 
 " grab," as embodied in the Remsen bill, 36 and the decision 
 of his brother, Justice Peckham. At an_, rate the facts bear 
 reciting. The decision of the Supreme Court, delivered by 
 Peckham, reduced the Consolidated Gas Company's capital to 
 less than $56,000,000. But in the act of declaring the eighty- 
 cent law constitutional, it held that the company was entitled 
 to earn dividends on $7,781,000 of franchise values. And it 
 also held that corporations were entitled to six per cent. 
 " earnings " on their stock, thus giving the highest legal 
 sanction to the minimum amount capitalists were allowed to 
 drain from the wage workers on the enormous outputs of 
 watered stock, not a dollar of which represented any actual 
 investment. 37 
 
 " Thus," says a legal analyst, " was the legislative sword, 
 drawn against monopoly, turned back into the vitals of the 
 people, in whose protection it had been raised. A prohibition 
 designed to check overcapitalization had been transformed, in 
 the judicial crucible, into a license for extortion. Thus, as 
 often happens, the people got the decision, but the corporations 
 
 36 So called from the name of Assemblyman Remsen, who introduced 
 it. In a long interview published in the New York Evening Post, April 
 16, 1910, Remsen said that the bill was handed to him to introduce and 
 that it must have come from Senator " Pat " McCarren, the corrupt 
 tool of the Sugar Trust and of the gas, traction and other interests. 
 As the recent president of the City Club, a so-called reform organiza- 
 tion, Wheeler H. Peckham, in advocating the passage of the Remsen 
 bill, shrewdly used his connection with that club to give the impression 
 that the City Club favored it. " Mayor McClellan," stated Remsen, 
 " told me after he had signed the bill that he had intended to veto it, 
 but had been convinced by eminent lawyers, among whom were Wheeler 
 H. Peckham, that the bill should be made a law." Public protest, how- 
 ever, was so great that when the bill went to Governor Odell he vetoed it. 
 
 It may be mentioned that when S. Fred Nixon, Speaker of the Assem- 
 bly at this period, died, he left a fortune of $1,500,000, much of which he 
 had deposited in Canadian banks. 
 
 37 212 U. S. Reports, 19.
 
 UNDER CHIEF JUSTICE FULLER 683 
 
 got the law for future use." 38 This juridical law was that 
 a mere franchise, no matter to what extent fraud and bribery 
 had been used in getting it, became property, and could be 
 capitalized. All of Peckham's associates Fuller, Harlan, 
 Brewer, White, McKenna, Holmes, Day and Moody concurred 
 in the decision. 
 
 Chief Justice Fuller and Justice Day in particular were well 
 versed in authoritative legal precedents as regarded franchise 
 powers, having as attorneys, represented gaslight corporations. 
 Many of the gas and electric light plants in large cities, as well 
 as industries ind transportation systems, were controlled by 
 the Standard Oil group. This group, as we have seen, was 
 powerful in the control of the Mutual Life Insurance Com- 
 pany. 39 
 
 Doctrine of " Transitory Risk." 
 
 For forty years the courts had been steadily narrowing the 
 rights of injured workers to get compensation, or those of 
 their survivors from recovering damages. By a remarkable 
 decision the Supreme Court of the United States now still 
 further curtailed the insignificant rights of the workers, if 
 indeed any rights at all remained. To do this the majority 
 
 38 Jesse F. Orton, " Privilege Becomes Property Under the Four- 
 teenth Amendment," The Independent, issue of Oct. 12, 1911. 
 
 39 Henry H. Rogers and William Rockefeller were vice-presidents 
 of the Standard Oil Company, which largely controlled the Consolidated 
 and other gas companies. Rockefeller and George F. Baker were di- 
 rectors of the Consolidated Gas Company. It was of Elihu Root, so 
 powerful a factor in Roosevelt's administration and at present under 
 Taf t's that Harriman wrote to Sidney Webster : " Ryan's success in 
 all his manipulations . . . has been done by the adroit mind of 
 Elihu Root. . . ." Root was, like Rockefeller, Rogers and Baker, 
 a trustee of the Mutual Life Insurance Company. The Ryan referred 
 to was Thomas F. Ryan, the capitalist magnate. In 1886 he was one 
 of the manipulators of the Metropolitan Traction Company, the stock- 
 holders. of which were robbed of $90,000,000. Ryan then organized and 
 dominated the Tobacco Trust and extended his ownership of properties. 
 Ryan was one of the directors of the Consolidated Gas Company, and 
 Root his main attorney.
 
 684 HISTORY OF THE SUPREME COURT 
 
 of the Supreme Court resourcefully invented a new term 
 which they called " transitory risk." 
 
 Chauncey A. Dixon, a fireman operating an extra train on 
 the Northern Pacific Railroad, had been killed by a head-on 
 collision. The time tables did not provide for the running of 
 extra trains. The train was not on the regular schedule, and 
 the local telegraph operator had made an error. Therefore, 
 said Justice Brewer in delivering the opinion of himself, 
 Brown, Peckham, Day and Holmes, the fault was the teleg- 
 rapher's ; he was a " fellow servant " with the fireman, and 
 in no way could the railroad be held responsible. Chief Jus- 
 tice Fuller, and Justices White, Harlan and McKenna dis- 
 sented. The consequence, said they, of the application of the 
 doctrine of " transitory risk " was that a railroad operating 
 its trains solely through the orders of a train despatcher " is a 
 licensed wrongdoer as respects its employes," and was ex- 
 empted from the provisions of the law. 40 Practically the rail- 
 road corporations were thus authorized to continue the slaugh- 
 ter of workers, and their immunity from the consequences was 
 enlarged. 
 
 In the year in which this decision was handed down 3,632 
 railroad employes were killed, and 67,067 injured. The total 
 carnage, including passengers, for that one year was 10,046 
 killed, and 84,155 injured. 41 
 
 Did ever a battlefield show a more ghastly slaughter? And 
 what of the resources of the railroads that refused to pay 
 the injured or the survivors of the killed? They had a total 
 capitalization of nearly fifteen billion dollars, and a net aver- 
 age income of about three hundred million dollars. 42 For the 
 destitute worker, maimed or crippled, or for the widows and 
 orphans of the slain, no redress of any kind ; every point, con- 
 
 40 Case of Northern Pacific Railway Company vs. Dixon, 194 Ul S. 
 Reports, 338. 
 
 41 Nineteenth Annual Report of the Interstate Commerce Commission, 
 p. 109. 
 
 42 Ibid., 83 and 303.
 
 UNDER CHIEF JUSTICE FULLER 685 
 
 struction and twist of law was used against them. Vice versa, 
 law, or what purported to be law, was stretched to its farthest 
 limits on behalf of railroad magnates so glutted with wealth 
 that the mere spending of a moiety of it taxed their ingenuity. 
 And just as the railroad workers were treated by the Supreme 
 Court, so were the workers in factories and mines, the slaugh- 
 ter in which was continuous. 
 
 Kidnapping of Workers Legalized. 
 
 The kidnapping of workingmen was the next step legalized 
 by the Supreme Court of the United States. 
 
 On December 30, 1905, former Governor Steuenberg of 
 Idaho who had incurred bitter enmity because of his extreme 
 brutality toward miners striving for better conditions, was 
 assassinated by a bomb. The bomb was placed at the gate in 
 front of his house. At once, without the slightest proof or 
 justification, the whole capitalist press of the United States 
 declared that the crime had been committed by the Western 
 Federation of Miners, or its agents. 
 
 A month and a half later, heavily-armed, special officers ar- 
 rested Secretary-Treasurer William D. Haywood, President 
 Moyer and former Executive Committeeman Pettibone of the 
 Western Federation of Miners at the dead of night in Denver, 
 Colorado. Despite the law, they were not allowed to communi- 
 cate with friends or to consult counsel. Every chance was 
 denied them of testing in the courts of their own State the 
 legality of their arrest and extradition. According to the pro- 
 visions of the most elemental law, no one could be denied these 
 rights. Nor could any arrested person be extradited without 
 regular and due process of law. Common and statute law 
 asserted these rights. The Constitution of every State pro- 
 claimed them. The Constitution of the United States guaran- 
 teed them, or professed to.
 
 686 HISTORY OF THE SUPREME COURT 
 
 What Happened to Three Labor Leaders. 
 
 But Moyer, Haywood and Pettibone were boldly kidnapped. 
 The kidnapping officials had a special train in readiness, and 
 the three union officials were rushed aboard. It was evident 
 that the Governors of Idaho and Colorado, both at the time 
 tools of the mine owners, had secretly arranged, or connived 
 at, this audacious undertaking. When the next day the news 
 was published, a roar of protest and indignation went up from 
 the organized workers throughout the nation. Time and time 
 again they had seen capitalists, accused of heinous crimes, given 
 every consideration and every opportunity of contesting ex- 
 tradition. Now the workers again clearly saw that two kinds 
 of law prevailed one variety for the capitalist, and another 
 for the working class. 
 
 Even before a trial was held, the Mine Owners' Association, 
 the Citizens' Alliance and other capitalist organizations de- 
 clared Moyer, Haywood and Pettibone guilty, and demanded 
 that they be hanged. The Western Federation of Labor im- 
 mediately started habeas corpus proceedings before a Federal 
 circuit judge. Upon his denying the writ, an appeal was taken 
 to the Supreme Court of the United States. 
 
 From old it had been held a sacred rule in the courts that ha- 
 beas corpus cases should be determined with the least possible 
 delay, for the reason that they involve the personal liberty of the 
 individual. But instead of considering the appeal, the Su- 
 preme Court of the United States took a long summer vaca- 
 tion. Meanwhile the arrested men remained in prison. 
 
 Habeas Corpus Writ Refused. 
 
 Finally after it had leisurely set a day for the hearing, the 
 Supreme Court of the United States, on December 3, 1906, by 
 a vote of eight to one, handed down its decision, Harlan de- 
 livering it. That decision virtually legalized the kidnapping of
 
 UNDER CHIEF JUSTICE FULLER 
 
 workers, 'annihilated the right of habeas corpus so far as the 
 working class was concerned, and reduced that class to the 
 complete mercy of capitalist oppressors. Only Justice Mc- 
 Kenna dissented. He denounced the kidnapping as " a crime, 
 pure and simple," and declared that " the States, through their 
 officers, are the offenders." This, he said, was not, as the 
 majority disingenuously sought to make it out, a case of an 
 individual kidnapping an individual. " No individual or indi- 
 viduals could have accomplished what the power of two States 
 accomplished ; no individual or individuals could have com- 
 manded the means and success; could have made two arrests 
 of prominent citizens by invading their homes ; could have com- 
 manded the resources of jails, armed guards and special trains ; 
 could have successfully timed all acts to prevent inquiry and 
 judicial interference." 43 
 
 More delay ensued before the three labor-union officials were 
 brought to trial before the local court at Boise, Idaho. A ver- 
 dict of acquittal was the result of the whole affair. The com- 
 bined power of the most powerful capitalist organizations, with 
 the power of Government and States and the utterances of a 
 prejudiced President at their command, had been unable to 
 produce the slightest evidence against Moyer, Haywood and 
 Pettibone. But the proceedings did reveal the fact that private 
 detectives, in the pay of capitalists, had blown up a depot at 
 Independence, Colorado, with the object of charging the strik- 
 ing miners with the deed, and thus discrediting them. 
 
 A Sinister Precedent. 
 
 The decision of the Supreme Court of the United States 
 legalizing kidnapping thus set the precedent for the similar 
 kidnapping recently of the two McNamara brothers, officials 
 of the Structural Iron Workers' Union. Secretly kidnapped 
 
 43 Pettibone vs. Nichols, and Moyer vs. Nichols, 203 U. S. Reports, 
 192, etc.
 
 688 HISTORY OF THE SUPREME COURT 
 
 in Indianapolis, they were denied counsel or process of law, 
 and were rushed, under armed guard, to Los Angeles, Cali- 
 fornia, where they were accused of instigating or causing the 
 destruction of the Los Angeles Times building and the 
 Llewellyn Iron Works and the loss of twenty-one lives. 
 
 As the trial was proceeding at Los Angeles they confessed 
 their guilt on December I, 1911, James B. NcNamara to the 
 blowing up of the Los Angeles Times building, and J. J. 
 McNamara to dynamiting the Llewellyn Iron Works.' The 
 one was sentenced to life imprisonment, the other to fifteen 
 years, 44 The strong evidence gathered against them led, it 
 was stated, to their confessions. But this very fact the 
 strength of the evidence made the matter of their being kid- 
 napped all the more unnecessary, arbitrary, and tyrannical. 
 Since the evidence was claimed to be so conclusive, the prose- 
 cution was under all the more reason to move according to due 
 process of law. Cases had frequently happened of prominent 
 officials or capitalists, accused even of murder like a former 
 Governor of Kentucky, fleeing to other States but no attempt 
 had been made to kidnap them. 
 
 The significant fact should be added that by a judicial device 
 the case of the detective Burns, who was indicted for kidnap- 
 ping the McNamaras, was transferred from the State courts 
 to the Federal courts, and Judge Anderson at Indianapolis 
 cancelled his bond, quashed his indictment, and set him com- 
 pletely free without even subjecting him to trial. 
 
 The decisions of the Supreme Court of the United States 
 undermining the power, or extinguishing the rights, of the 
 
 44 The dynamitings were the result of a bitter war carried on against 
 labor unions by various powerful capitalist organizations which were 
 using every means to destroy the unions. The McNamaras, it may be 
 said, were aligned with the extremely conservative ruling element of 
 the American Federation of Labor, were Democrats in politics and 
 Roman Catholics in faith, and refused, like other leaders of the American 
 Federation of Labor, to support the peaceable political-educational 
 propaganda of the Socialist Party.
 
 UNDER CHIEF JUSTICE FULLER 689 
 
 working class were sinister enough. But now came another 
 decision of so extravagant, unexpected and ominous a nature, 
 that labor unions were dumfounded from sheer amazement. 
 
 Sherman Act Used Against Labor Unions. 
 
 For twenty-one years the Sherman anti-trust law had been 
 on the statute books. When the law was passed, trade unions 
 had supported it. It did not contain the remotest reference 
 to labor unions. It did not appear to apply to them ; few 
 dreamed that the time would ever come when it would be so 
 applied. That law was passed at the behest of the middle 
 class, and was expressly and distinctly aimed at trusts and 
 railroad combinations. 
 
 The Supreme Court of the United States had been unable to 
 discover that the Sugar Trust was a trust; it had not broken 
 or even impaired a single trust ; not a trust magnate had suf- 
 fered a day's imprisonment because of its decisions. But it 
 did now fully discover that the labor union was a trust in re- 
 straint of trade. The very trust capitalists who were amenable 
 under that law now used that self -same law to disrupt labor 
 unions. Enjoying immunity themselves, they demanded that 
 the labor unions be strictly prosecuted. 
 
 Danbury Hatters' Case. 
 
 The action in which this extraordinary turn developed was 
 the Danbury Hatters' case. Alleging that the United Hatters' 
 Union had injured their business through a boycott, Loewe 
 and Company of Danbury, Connecticut, brought suit against 
 the union. Further alleging that the union was a conspiracy 
 in restraint of trade, under the provisions of the Sherman anti- 
 trust law, Loewe and Company asserted that they had suffered 
 to the extent of $80,000, and they demanded that under that
 
 690 HISTORY OF THE SUPREME COURT 
 
 law threefold damages be awarded them. The object was 
 clear. If such an enormous sum in damages were allowed, 
 the union would be bankrupted, and with no striking fund in 
 the treasury, it could not prosecute a strike, or peYhaps even 
 exist. 
 
 Labor Unions " Conspiracies." 
 
 The Federal Circuit Court in Connecticut gave a verdict of 
 $222,000 against the two hundred members of the United Hat- 
 ters' Union. The particular question, however, carried to the 
 Supreme Court of the United States was whether under Section 
 7 of the Sherman anti-trust law the Loewe Company could 
 maintain an action against the Hatters' Union. The Supreme 
 Court unanimously decided that it could. It held that the 
 union was a combination in the form of a trust, and its so- 
 called boycott was an interference with a free flow of trade 
 between the States, and, therefore, in restraint of trade. 
 
 Here was a capital blow at organized labor, the masterpiece 
 of all assaults. Under this decision every labor organization 
 could be proceeded against by any Federal prosecuting officer, 
 and union members could be punished by a fine of $5,000 and 
 by imprisonment for a year. Soon after this decision the hat 
 manufacturers entered into a combination or " lockout " to 
 enforce non-union conditions, which meant a reduction in the 
 workers' wages and further privation. 
 
 For the reasoning of the Supreme Court one would be justi- 
 fied in feeling the supremest contempt, were it not for the 
 evident fact that this species of reasoning coincided exactly 
 with the demands of the capitalist class. A labor union is an 
 organization to protect the only property its members have 
 to sell, which is that of labor power. On the other hand, a 
 trust is a concentrated organization to monopolize the pro- 
 duction and control the distribution of the means by which 
 people must live. Suddenly, and without warning, an act in- 
 tended to break up trusts is applied to labor unions.
 
 UNDER CHIEF JUSTICE FULLER 69! 
 
 Chattel Slavery Outdone. 
 
 Capitalist organizations hailed this decision with joy, and 
 their mouthpieces once more eulogized the Supreme Court as 
 the bulwark of " the rights of property and the freedom of 
 trade." Among the workers the decision was received with 
 execrations. 
 
 " We are living in a time portentous of results for the pres- 
 ent as well as the future," wrote Samuel Gompers, the presi- 
 dent of the American Federation of Labor. " The slave owner 
 was usually restrained from going to extremes in the treat- 
 ment of his slaves by the fact that they represented property 
 value to him, but if the industrial situation ensues indicated by 
 this court decision, the wage workers would be more under 
 the control of the unscrupulous employer than was the slave 
 under his owner. . . . The event which we feared has 
 come to pass. The [Sherman anti-trust] law has long been 
 admitted to be of no value in restraining or really punishing 
 trusts. Useless as an instrument of good, perverted from its 
 original intent, it has now been made an instrument of positive 
 mischief. We know the Sherman law was intended by Con- 
 gress to punish illegal trusts and not the labor unions, for we 
 had various conferences with members of Congress while the 
 Sherman act was pending, and remember clearly that such a 
 determination was stated again and again." Outlaw the nor- 
 mal activities of the workers to protect themselves, Gompers 
 concluded, and a movement would eventually result which he 
 intimated would be nothing more or less than a revolution. 45 
 
 But although labor unions were adjudged conspiracies in 
 restraint of trade, the point as to whether union members 
 could be collectively held liable for damages was not determined 
 by the foregoing decision. This question did not come before 
 the Supreme Court of the United States until 1911. On Janu- 
 ary 15, 1912, this Court, in denying a writ of certiorari in the 
 
 45 The American Federatwnist, issue of March and April, 1910.
 
 692 HISTORY OF THE SUPREME COURT 
 
 case of Loewe vs. Lawler (Danbury Hatters' case), virtually 
 affirmed the judgment of the Circuit Court of Appeals that 
 members of a labor union could not be held to answer for 
 damages done due to a strike or accompanying boycott, ordered 
 by union officers, unless it was conclusively proved that mem- 
 bers of the union actually participated in " the acts of vio- 
 lence," or authorized them, or had guilty knowledge of them. 
 Even as it stood, this decision contained sinister potentialities. 
 
 Boycott Illegal, Blacklisting Legal. 
 
 At about the time it decided the first Danbnry Hatters' 
 case, the Supreme Court of the United States handed down 
 other decisions greatly strengthening the power and aggres- 
 sions of capitalists and further weakening the defenses of labor 
 unions. A decision dealing with the Erdman Interstate Act 
 of Congress enabled the railroads to maintain a blacklist 
 against members of labor organizations, and discharge them 
 at will. 
 
 This decision came in the suit of Adair vs. The United 
 States, decided January 27, 1908. Had Congress power, under 
 the Erdman Act of 1898, to make blacklisting a crime? The 
 United States District Court in Kentucky decided that Con- 
 gress had the power. The Supreme Court of the United 
 States reversed this decision, and held that blacklisting was 
 not a crime. Upon what ground did the Supreme Couft of 
 the United States declare this provision of the Erdman Act 
 unconstitutional? Why, upon the ground that it was repug- 
 nant to the fifth amendment of the Constitution that no person 
 shall be deprived of liberty or property without due process 
 of law ! 4G 
 
 Singular that the Supreme Court had not thought of this 
 amendment when it virtually legalized the kidnapping of 
 Moyer, Haywood and Pettibone. Strange that it did not see 
 
 40 208 U. S. Reports, 161.
 
 UNDER CHIEF JUSTICE FULLER 693 
 
 the application of the amendment to the liberty and property 
 of the laborer ; his liberty to agitate for better conditions, and 
 his right to protect his labor- power, which was the only 
 property he had. But such decisions were really neither 
 strange nor singular coming from men who never would or 
 could have gone on the Supreme Court Bench had it not been 
 for their capitalist training, environment, clientage and alli- 
 ances. 
 
 These are some main examples of decisions of the Supreme 
 Court, not omitting the Employers' Liability Act which, on 
 January 6, 1908, it declared unconstitutional. 47 To give more 
 examples would entail a monotonous narration. Boycotting, 
 particularly secondary boycotting, was now a crime, and black- 
 listing was legal. The sum of the decisions was to give the 
 corporations license to extirpate the labor unions and to 
 slaughter the workers, while at the same time every effective 
 weapon of defense possessed by the working class was put un- 
 der the ban of the law. 
 
 As we have said, the country was filled with the destitute, 
 maimed or crippled who had been mangled on the railroads 
 or in the factories or mines. The huge army of victims killed 
 while at work crowded the graveyards. What became of 
 their widows? What of their sons and daughters? Vital sta- 
 tistics revealing deaths from disease and inanition can tell 
 part of the tale. The prison records can supply another part ; 
 the tale of young men driven to crime by wretched environ 
 ment and gaunt poverty. The remainder of the tale is to be 
 read in brothels or on the midnight streets of cities. 
 
 Fuller Almost a Millionaire. 
 
 When an attorney, Chief-Justice Fuller had contested claims 
 of injured workers, or those of survivors of the slain. So 
 
 47 This was an act passed by Congress, June n, 1006, relating to the 
 liability to employes of common carriers in the District of Columbia, 
 and Territories, and in interstate commerce. 207 U, S. Reports, 463.
 
 694 HISTORY OF THE SUPREME COURT 
 
 had Day, and so, likewise, had Holmes. On the Bench they 
 had generally decided against the workers. The country was 
 replete with poverty. But when Chief Justice Fuller died in 
 1910, his will, admitted to probate in Chicago, on September 
 17 of that year, disclosed that he left an estate valued at $950,- 
 ooo. 
 
 Of this amount, it was estimated that $115,000 had been 
 bequeathed to him by his wife, who had died in 1904. Of 
 the entire estate left by Fuller, a considerable portion was in 
 real estate. The trustees named in the will were Stephen S. 
 Gregory and the Merchants' Loan and Trust Company. In a 
 carefully worded interview given to the newspapers Gregory 
 took special pains to point out : " I wish that stress would be 
 laid upon the fact that Fuller did not make his money since 
 he became judge. His wealth was acquired through the in- 
 crease in value in real-estate holdings in Chicago which he 
 acquired early in life. He made no money while a judge." 48 
 
 48 See, New York Herald, July 12, 1910, and other newspapers of 
 that date.
 
 CHAPTER XVII 
 
 For the first time in the annals of the Supreme Court of the 
 United States, the choice of a Chief Justice, was not made 
 from the ranks of lawyers but the selection was determined 
 of an Associate Justice of the Supreme Court itself. The 
 member thus chosen by President Taft to succeed Fuller was 
 Associate Justice Edward D. White. President Taft, succeed- 
 ing Roosevelt in 1909, had himself been a judge on the bench 
 of the United States Circuit Court. Indeed, it was authori- 
 tatively said that Taft's highest ambition was to go on the 
 Supreme Court Bench, but his election as President interfered 
 with his desire. After Fuller's death Taft had filled vacancies 
 on the Supreme Court by appointing Horace H. Lurton and 
 Charles E. Hughes as Associate Justices to succeed Peckha*hi 
 and Brewer. Although these two appointments were made 
 during the incumbency of Fuller, yet they came late in that 
 period, and we have accordingly reserved description for this 
 chapter. 
 
 Taft's Views and Environment. 
 
 Of all the successive Chief Executives, none was perhaps 
 more honest, ingenuous and bluntly outspoken in his views 
 than Taft. He had neither political instinct nor political abil- 
 ity, and he entirely lacked that superfine caution and cunning 
 temporizing that marks the practiced politician. His father 
 had been a corporation lawyer and so had he ; and his brother 
 Henry W. Taft had represented the New York, New Haven 
 and Hartford Railroad. In his class instincts, reenforced by 
 
 695
 
 696 HISTORY OF THE SUPREME COURT 
 
 training and environment, President Taft was an avowed 
 spokesman for the interests of the dominant class. Unlike 
 Roosevelt, he did not court popular favor by wordy denuncia- 
 tion of capitalist magnates while in act and fact serving their 
 ends. 
 
 Obediently Taft ministered to their interests, but not pri- 
 marily for the reason that he desired to win their support or 
 campaign contributions. He did so, because, on the whole, he 
 sincerely believed that it was the right and proper thing to do ; 
 conviction, not calculation, swayed his acts. Infinitely far re- 
 moved from either knowledge or understanding of the work- 
 ing class, he was impervious to its position, aspirations and 
 movements. But to the masters of capital and their retainers 
 his ear was ready and his acts responsive. With the currents 
 of their atmosphere he had been surcharged from his earliest 
 years. 
 
 His Defense of the Judiciary. 
 
 No better illustration of his tenacious defense of his class 
 and his indifference to, if not ignorance of, popular thought 
 could have been afforded than his effusive praise of judges. 
 At a time when a profound distrust of capitalist law, and a 
 resentment at the manipulation of law, had permeated the mass 
 of people, 1 Taft publicly gloried in his profession of law. The 
 working class had seen law arbitrarily divided into one appli- 
 cation for the rich, and another for the poor ; they had seen it 
 
 1 Even lawyers themselves often publicly denounced the complete 
 subversion of law for the benefit of the capitalist magnates. Thus, for 
 example, Samuel Untermeyer, a conspicuous corporation attorney, de- 
 clared in an interview on June 15, 1909, that the Government had no 
 trouble " in convicting and driving out of business a few poor, strug- 
 gling, comparatively harmless combinations which were put together 
 to prevent bankruptcy and secure a small profit. But the financial buc- 
 caneers who have been 'holding up' the country in the necessities of 
 life . . . have remained immune, until every lawyer who has had 
 to deal with this big question knows that the pretended 'enforcement' 
 of the law is a huge farce." Untermeyer might have added with equal 
 accuracy that while capitalists escaped, the harshest judgments were 
 inflicted upon the working class, collectively and individually.
 
 UNDER CHIEF JUSTICE WHITE 697 
 
 used as a powerful and apparently invincible instrument for 
 the intrenchment of one class, and the crushing and attempted 
 dispersion of another.. They had seen the mass of lawyers 
 flocking to the side from which rich fees and power were to 
 be had, and distorting law for the benefit of those who could 
 repay them with a part of their accumulated loot. They had 
 seen the judges selected from these lawyers, and they had 
 been the victims of the extraordinarily one-sided and partial 
 decisions of those judges. 
 
 Popular respect for the judiciary had broken down ; among 
 the initiated there never had been much, if any, respect; but 
 now the lack of reverence, amounting to bitter indignation, had 
 grown to tremendous proportions. The people began to de- 
 mand the exercise of popular control over the judiciary 
 through the power of recall. 
 
 But the capitalists as keenly realized that it was mainly 
 through the decrees of judges that their class executed their 
 purposes. Taft vetoed the Arizona Constitution bill providing 
 for the recall of judges, and, caring nothing for popular opin- 
 ion, gave this extravagant eulogy in his speech at Pocatello, 
 Idaho, on October 6, 1911 : " I love judges and I love courts. 
 They are my ideals on earth of what we shall meet afterward 
 in Heaven under a just God. . . ." He resented, he said, 
 with " deep indignation " the attacks upon the courts, and 
 could see nothing else in those questionings of motive and acts 
 than attacks for " mere political purposes." Whereat the 
 powerful capitalists who make judges must have smiled de- 
 liciously; by the same logic if judges are predestined for a 
 reserved place in Heaven, their creators even more so must 
 certainly be ! 
 
 This radiant outburst of Taft's genius gives something of 
 an insight into the mentality of the man of the White House 
 who has appointed six of the nine judges and a Chief Justice 
 of the Supreme Court of the United States. 
 
 But it is not Taft's psychology which is so much of moment,
 
 698 HISTORY OF THE SUPREME COURT 
 
 as the consideration of what the actual facts were as con- 
 cerned the election or appointments of judges. It will be seen 
 that judges did not ascend to the Bench by any celestial route 
 or by the workings of mysterious laws of Providence. The 
 means used and the determining influences were of the com- 
 monest earthly sort, involving such sordid measures, in the 
 frequent cases of State judges, as the purchase of nominations, 
 and in cases of virtually all judges, high and low, as the back- 
 ing of political bosses who in turn were controlled by the great 
 corporations. 
 
 The Making of Judges. 
 
 We shall not pause here to enter into what would unavoid- 
 ably be an extended account of how State judges were re- 
 warded with nominations and elections. The revelations 
 brought out by legislative investigating committees in New 
 York and other States disclosed how they often practically 
 purchased nominations, or were pushed by powerful corpora- 
 tions whose campaign contributions were the deciding factor. 2 
 Leaving aside, then, the sphere of State judges, we shall simply 
 call attention to a series of facts made public in 1908 regarding 
 the corporate control of Judges in general. 
 
 From time to time serious public scandals had developed, 
 particularly in the case of various Federal judges charged with 
 being susceptible to railroad influences and of availing them- 
 selves while on the Bench of favors from railroads. Not often 
 was it possible to prove the charges legally, inasmuch as such 
 transactions were necessarily and largely of a secret char- 
 acter. It was also to be expected that the United States Sen- 
 ate, composed as it was almost wholly of railroad or other 
 
 2 To give one illustration of many examples : Judge Pryor testified 
 before the " Mazet " New York Legislative Investigating Committee, 
 in 1-899, that he had been asked by a Tammany Hall emissary for 
 $10,000 for his nomination for a vacant half-term in the New York 
 State Supreme Court. Other judicial candidates, it was understood, 
 paid from $10,000 to $25,000 for nominations.
 
 UNDER CHIEF JUSTICE WHITE 699 
 
 corporation lawyers or magnates, would, as the trial body, 
 refuse to vote impeachment. Federal Judge Charles Swayne, 
 for example, accused on many specifications of favoritism 
 to railroads, escaped impeachment, 3 and a number of other 
 Federal judges charged with the same offences were not even 
 brought to trial. 
 
 Hunting for a Qualified Judge. 
 
 There were also those exceedingly edifying developments 
 regarding the Joint Traffic Association suit, brought out in 
 the course of a hearing before the Committee on Interstate 
 Commerce of the United States Senate, in 1896. The Joint 
 Traffic Association suit was an action instituted by the Govern- 
 ment in the Federal Courts, in New York, against thirty-two 
 railroad companies. 
 
 " When it came up," Wallace Macfarlane, U. S. District- 
 Attorney for the southern district of New York, testified on 
 December 17, 1896, " Judge Lacombe stated that in his opinion 
 he was disqualified to hear the case, or any proceedings in it, 
 as at that time he owned bonds or stocks in some of these 
 railroads; and he also stated that he understood that most, if 
 not all, of the judges of that circuit were under the same dis- 
 qualification. 
 
 " It was finally found that Judge Wheeler, the district judge 
 of the Vermont district, was apparently the only judge in the 
 circuit who was not under a disqualification similar to that 
 which Judge Lacombe stated that he was under, namely the 
 holding of some bonds or stocks in one of the defendant rail- 
 roads. It was eventually arranged that the case should be 
 heard before Judge Wheeler, as it finally was. . . . 
 
 " Before the cause was heard, Judge Lacombe had become 
 
 3 See, " Proceedings in the Senate in the Matter of the Impeachment 
 of Charles Swayne, Judge of the District Court of the U. S. for the 
 Northern District of Florida," Government Printing Office, 1905.
 
 7OO HISTORY OF THE SUPREME COURT 
 
 qualified. The disqualification which he had stated when the 
 case first arose had been removed by the sale of any bonds 
 or stocks which he had held at the commencement of the pro- 
 ceedings. Judge Lacombe then stated that, as it had been 
 arranged that the cause should be heard before Judge Wheeler, 
 he preferred to have it remain that way, as the cause was one 
 which he could safely assume would be appealed, whatever the 
 result might be, and there would be no difficulty in constituting 
 an appellate term there, and he [Judge Lacombe] would be 
 needed for the purpose." In other words, Judge Lacombe 
 would be one of the judges sitting on appeal. 
 
 This testimony, of so illuminative a nature that comment 
 is needless, is given here exactly as it is published in Document 
 No. 64, Senate Documents, Fifty-fifth Congress, First Session. 
 
 In the fall of 1908, William R. Hearst, proprietor of a 
 number of newspapers, and a dabbler in politics, contrived 
 to get hold of copies of a number of letters written by John 
 D. Archbold, then the practically active head, and now (1912) 
 the president, of the Standard Oil Company. These letters, 
 the authenticity of which was not denied, revealed that Arch- 
 bold had the most confidential relations with Quay, Foraker 
 and other United States Senators and legislators and with 
 State officials. One of the letters disclosed the fact that on 
 August 3, 1899, Archbold had urged upon Quay the selection 
 of Thomas A. Morrison for the Pennsylvania Supreme Court. 
 Another letter, dated September 5, 1900, from Archbold to 
 Governor Stone, of Pennsylvania, recommended the appoint- 
 ment of John Henderson to the same court. Both Morrison 
 and Henderson were duly appointed. Other letters, dated 
 February 5, 1900, and March 15, 1900, from Archbold to 
 Attorney-General John P. Elkin, of Pennsylvania, showed 
 that Elkin received $15,000 from Archbold; Elkin later became 
 a judge of the Supreme Court of Pennsylvania. According 
 to these letters (and they were doubtless but a very few of 
 many) Archbold had his secret political mechanism, in the
 
 UNDER CHIEF JUSTICE WHITE 7OI 
 
 operation of which a mere word from him to the political 
 bosses was sufficient. If this were true, as it evidently was, 
 is it not a fair assumption that the vigilant solicitude would 
 be extended to the hightest, as well as to the lesser, courts and 
 offices ? 
 
 Concentration of Wealth and Power. 
 
 The wealth and power at this time of the Standard Oil 
 Company allied with J. Pierpont Morgan, were so gigantic 
 as to be inconceivable even when expressed in money terms. 
 In 1904, the total capitalization of all of the trusts, including 
 franchise trusts and railroad groups, was fully $20,000,000,- 
 ooo; by January i, 1908, the grand total had risen to nearly 
 $32,000,000,000.* " This thirty-one billion dollars [$31,672,- 
 000,000] of industrial, franchise and transportation trust capi- 
 talization," stated Senator LaFollette, " does not represent all 
 the corporate power in the hands of the Standard Oil-Morgan 
 combination. It does not include their financial consolidations 
 their banks, trust companies and insurance companies." 5 
 Much of this wealth was owned outright or controlled by the 
 Standard Oil Company and Morgan ; the remainder was 
 largely owned by smaller magnates subsidiary to the purposes 
 and interests of the great combination which had already begun 
 a systematic process of crushing or completely subordinating 
 some of them. 
 
 This enormous power, centered in a few financial dictators,, 
 alarmed and affrighted beyond description the remnants of 
 small business men still remaining. Overawed by such vast 
 wealth and power in a few hands, clinging to the hope that 
 by some magic of court decree the great combinations would 
 be dissolved, they still continued their agitation for the en- 
 
 4 Statistics by John Moody. 
 
 5 " Centralization and Community of Control in Industry," etc. 
 Speech Delivered in the U. S. Senate, March 17-24 and March 27, 
 1908, p. 45.
 
 702 HISTORY OF THE SUPREME COURT 
 
 forcement of the anti-trust act. Necessarily, therefore, eager 
 attention was bent upon the court of last resort, the Supreme 
 Court of the United States. Never as much as after Fuller's 
 death had the question of who would be Chief Justice excited 
 such speculation and interest. 
 
 Justice White Appointed Chief Justice. 
 
 Surprise was great when Taft appointed Associate Justice, 
 White to the vacancy. Taft was a Republican, White a Dem- 
 ocrat; this effacing of partisan lines was in itself a stroke 
 causing wonderment to those who did not see that essentially 
 both the old political parties were adjuncts, reflexes and in- 
 struments of the capitalist system. Both stood for its per- 
 petuation, and neither represented in the remotest degree the 
 demands of the working class. The label differed; that in- 
 trinsically was the only difference between the two parties, 
 although on minor points, arising from the conflicts within the 
 capitalist sphere, they superficially had their contentions. 
 
 Why, it was asked, was White appointed Chief Justice? 
 There were those who sought to explain the appointment on 
 the ground of religious attachment. Vague yet persistent 
 reports were spread that the influences of the Roman Catholic 
 Church were subtly and effectively used in White's behalf. 
 White was educated in a Jesuit college, the Georgetown Uni- 
 versity; and the Roman Catholic Church, virtually outlawed 
 in many parts of the country a century or more ago, has 
 grown to a position of great economic power, owning as it 
 does, vast properties and including, as it does, too, many capi- 
 talist magnates of the first order. The prelates of this church 
 have taken an organized stand for the perpetuation of the 
 present capitalist order, and for the denunciation of all radical 
 movements, especially of Socialism. But whether the rumors 
 of the Roman Catholic backing of Chief Justice White are 
 true or not, we of course cannot say; they are given here in
 
 UNDER CHIEF JUSTICE WHITE 703 
 
 the form of unverified reports, yet possibly not without sub- 
 stance. 
 
 But, after all, White's appointment as Chief Justice was not 
 determined by any question of religious faith. Throughout a 
 long career he had evinced the highest qualifications for ap- 
 pointment to the exalted post .of Chief Justice, as those quali- 
 fications were weighed and understood by those upon whom 
 his appointment and confirmation depended. On the Supreme 
 Court Bench he had been recognized as favoring trusts. 
 
 Chief Justice White's Career. 
 
 Born to some wealth, White had been brought up in a 
 typically Southern atmosphere, abounding in class distinctions 
 at the top of which he was positioned. He acquired a large 
 sugar plantation, which he has since extended, in the La 
 Fourche district, Louisiana. In various published accounts 
 he has been rated a millionaire, but these accounts are not 
 to be accepted as responsible ; hence it is not possible to state 
 his wealth explicitly. His friends say that he is a com- 
 paratively poor man. As a lawyer in New Orleans, his clients 
 were mainly Jewish merchants of wealth, or at least, of means ; 
 we do not find a single case in which he pleaded the cause of 
 a poor litigant. However, he did not represent any railroad 
 interest, and the only large corporation he served as attorney 
 was the Whitney Bank, now the biggest in New Orleans. He 
 combined law and politics; his was the characteristic case of 
 a rich, young man entering politics, which in Louisiana meant, 
 of course, Democratic politics. He became one of Nicholls' 
 political lieutenants ; he was a State Senator ; and when 
 Nicholls became Governor of Louisiana he appointed White, 
 in 1878, a judge of the Louisiana Supreme Court. 
 
 At that time the controlling, most all-powerful single factor 
 in Louisiana politics was the Louisiana Lottery Company, with 
 its net annual revenue of $8,000,000 a year. Widespread
 
 704 HISTORY OF THE SUPREME COURT 
 
 agitation to abolish this company gradually crystallized, in 
 1890, in the introduction of an act in the Louisiana Legisla- 
 ture refusing to extend its charter. On May 22, 1890, Sena- 
 tor Foster proposed a resolution in the Legislature to inquire 
 into charges that members were being offered $1,000 each 
 for their votes. Joseph St. Armant was arrested on June 
 22, 1890, on a charge of bribery. Governor Nicholls vetoed 
 the bill refusing to extend the company's charter, but on 
 July 8, 1890, the House passed it over his veto. During this 
 time White was actively and publicly opposing the Louisiana 
 Lottery Company. 
 
 White had been acting as the Treasurer of the State cam- 
 paign committee. In 1890 the Sugar Trust, on the one hand, 
 and, on the other, the beet sugar-cane planters, were en- 
 gaged in a bitter quarrel over the tariff ; since then, it may be 
 observed, their interests have become more or less identical, 
 as has been shown by bills of particulars in Government 
 actions. The sugar planters were among the most adroit and 
 persistent lobbyists at Washington, a fact attested by the pas- 
 sage of a certain act in 1890, which act we shall have good 
 occasion to describe presently. Thus it was that White, a 
 sugar-cane plantation owner, was elected to the United States 
 Senate, and thus, also, White's successor in the Senate, 
 Blanchard, was interested in sugar plantations, and one of 
 the present United States Senators from Louisiana Murphy 
 J. Foster is a brother of J. Warren Foster who owns per- 
 haps the largest sugar-cane plantation in the State. 
 
 White Bitterly Attacked. 
 
 After White's election to the United States Senate, and 
 before he took his seat (in 1891) in that body, 6 a campaign 
 
 Under the peculiar customs of Louisiana, he was elected to the 
 United States Senate nearly three years before he entered that body.
 
 UNDER CHIEF JUSTICE WHITE 705 
 
 of assault was opened upon him by the New Orleans Times- 
 Democrat, one of the leading newspapers of that city, and of 
 a partisan Democratic character. 
 
 On July 1 8, 1890, it contained an editorial asking: 
 ". . . Is Senator-elect White an honest man? Is he a 
 pure man? Or is he a hypocrite and cheat? There are 
 rumors, thick as leaves in Vallambrosa, to the effect that 
 . . . he attained to the dignity of which he is so proud 
 by means that were not pure. . . . Are these rumors true ? 
 . . . Will the Senator tell the people of New Orleans how 
 much money it took to secure him his election to the United 
 States Senate by the Legislature of Louisiana? Will he tell 
 where he got the money, and in what" special channels it was 
 disposed of ? 
 
 " These are not idle questions. The rumors to which we 
 refer are on everybody's lips; they are either true or they 
 are false. 
 
 " Our columns are wide open to the Senator-elect for pur- 
 poses of explanation. If he can prove the rumors false the 
 Times-Democrat stands ready to print his statement and to 
 make the amplest possible reparation. . . ." 
 
 The Times-Democrat charged editorially on July 22, 1890, 
 that it could prove " that the campaign committee of which 
 Senator-elect White was treasurer, received the sum of ten 
 thousand dollars from the head and front of the Lottery Com- 
 pany, which the Senator disbursed in the interest of Gov. 
 Nicholls and himself in the last campaign." The statement 
 went on : " Let not the Senator attempt to deny the charge 
 and allege the money was subscribed by an individual and not 
 by the Lottery Company. 
 
 " When the check, which had been solicited, was tendered 
 to the committee, one member objected that it came from the 
 Lottery Company. Another member said that he regarded it 
 as an individual subscription. One of the committeemen then
 
 706 HISTORY OF THE SUPREME COURT 
 
 said, ' Gentlemen, let us have no misunderstanding ; the money 
 comes from the Louisiana Lottery Company.' The money 
 was received, turned over to the Treasurer (now Senator- 
 elect) White, and used in the campaign to elect that exemplar 
 of all the virtues Gov. Nicholls. 
 
 " So much for the charge. Will the Senator-elect dare 
 deny it? It is further charged the Times Democrat 
 charges and can prove that . . . [Mr. White] received 
 from the Lottery Company, or rather from the head and 
 front of that concern, the sum of ten thousand dollars to 
 assist him personally in his fight for the Senate. 
 
 " Did Senator White use that amount honestly ? The 
 amount is large and could scarcely have been consumed in 
 stationery. 
 
 " The Times-Democrat does not court a libel suit. It is a 
 costly and disagreeable mode of procedure, but still the courts 
 are open to the Senator-elect if he chooses to seek redress 
 therein." 7 
 
 White Replies to the Charges. 
 
 On Sunday, July 27, 1890, the Times-Democrat published 
 a full page of statements from Senator-elect White and his 
 associates, giving their version and reply. They did not deny 
 the fact of the $10,000 contribution, but stated that it was 
 spent for legitimate political purposes. In a signed personal 
 statement, White wrote that if he could have stooped to the 
 use of corrupt means, his and his family's personal resources 
 were enough, but that he did not corrupt a single vote and 
 his total expenses were just about $1,000, nearly half of 
 which was disbursed in the cost of an entertainment and re- 
 ception given to the members of the entire Democratic caucus 
 after the nomination had been made. 
 
 7 This editorial is given precisely as originally published but with an 
 unimportant part omitted.
 
 UNDER CHIEF JUSTICE WHITE 707 
 
 In the same issue in which these replies were published, the 
 Times-Democrat contained an editorial saying that White ad- 
 mitted the charge of receiving the Lottery Company's money, 
 and disbursing it as treasurer of the Committee, and subse- 
 quently as chairman of the finance committee. 
 
 ". . . The Senator-elect says," continued the editorial, 
 " that no money was given him to elect him to the Senate. 
 Did not every dollar he received from the Lottery Company 
 and spent to help elect the legislative nominees help directly 
 to elect him to the Senate? Was he not working to that end 
 all through the campaign? 
 
 " But we charged that the Senator-elect received money 
 from the Lottery Company, or its chief representative, to assist 
 him in his personal canvass. The Senator denies it. We 
 reaffirm the charge. Will he, on second thought, deny that 
 a certain sum of money, ten thousand dollars or more, was 
 deposited with a mutual friend who disbursed it upon his 
 personal orders? Will he dare deny the existence of these 
 orders ? We reaffirm the charge, and we challenge the Senator- 
 elect to bring us into court, where he and our witnesses will 
 be upon their oaths." 
 
 Again on July 31, 1890, the Times-Democrat editorially 
 " declares with added emphasis that Senator-elect White did 
 receive from the Lottery Company's chief large sums of money 
 with which to conduct his personal canvass; that he did use 
 that money for that purpose, and that we can prove that fact 
 in a court of justice where we can place the Senator-elect on 
 the stand under oath and confront him with our witnesses. 
 
 " We realize the gravity of the charge, and offer the Senator- 
 elect an opportunity to forever set the matter at rest. Will he 
 accept it, or does he fear to meet the consequences of a suit 
 for libel against this paper? We are prepared, if necessary, 
 to give in advance good and solvent bond for any damages 
 the Senator-elect may be awarded by a jury."
 
 708 HISTORY OF THE SUPREME COURT 
 
 Obvious Motive for the Attacks. 
 
 We have given with equal consideration both the reiterated 
 charge and the reply, allowing the reader to form his or her 
 own conclusions. So far as is ascertainable Senator White 
 did not accommodate the repeated desire of his accusers with 
 a suit in court. What the motive was underlying the attack 
 was never established in court whether it was sincere indig- 
 nation or an outgrowth of political rivalries or an attempt 
 at reprisal by enemies. But all the available evidence goes to 
 prove that the Louisiana Lottery Company was seeking to 
 retaliate upon White because of his public opposition to it 
 during the legislative fights. Arraying himself prominently 
 with the anti-lottery forces, White was elected on the crest 
 of the wave of public indignation which swept the State, 
 demanding the suppression of the lottery. It was certain that 
 the publication of the charge put White into an extremely 
 uncomfortable, if not embarrassing, position. 
 
 The contest in Congress between the sugar refiners and the 
 sugar-cane and beet planters was finally compromised, in 1890, 
 by the passage of a bounty act for the benefit of the planters. 
 White had not yet entered the Senate when this measure was 
 passed. Under this act the sugar-cane and sugar-beet 
 planters were to receive from $7,000,000 to $10,000,000 in 
 bounties a year from the Government. 
 
 In 1894, however, a new tariff measure, called the " Wilson 
 Bill " was introduced in Congress. Cleveland's Democratic 
 administration was now in power, and the majority in Con- 
 gress were Democrats. When this bill came before the Sen- 
 ate one of the bitterly contested points was whether the sugar 
 bounty should or should not be continued. The sugar-cane 
 planters were extraordinarily active, and not less so the repre- 
 sentatives of the Sugar Trust which seemed now to be work- 
 ing in harmony with the planters. The beneficiaries of the 
 bounty act were largely the Louisiana sugar-cane growers.
 
 UNDER CHIEF JUSTICE WHITE 7OQ 
 
 Contest over the Sugar Schedule. 
 
 On February i, 1894, during the debates, Senator Allison, 
 of Iowa, severely denounced the sugar bounty act, and in- 
 quired of Senator White whether that payment was not a 
 wasteful and extravagant expenditure of public money. Sena- 
 tor White answered so evasively that Allison sharply said, 
 ' That was not the question I asked." He again put the direct 
 question. White replied lamely, saying that he couldn't sep- 
 arate the tariff and the bounty questions ; that they were one and 
 the same. He nevertheless admitted that the bounty provi- 
 sion was " a wrong against the revenue system of the Gov- 
 ernment." 8 Senator Harris, of Tennessee, then said that he 
 regarded the sugar bounty from the beginning " as an outrage 
 and a wrong. ... I am for a tariff for revenue, but I am 
 not for a tariff to protect or benefit any particular class or 
 any particular persons." This was a deep thrust inasmuch 
 as the sequel revealed that White was himself a considerable 
 beneficiary of the bounty act. 
 
 President Cleveland had successively nominated William B. 
 Hornblower and Wheeler H. Peckham to fill a vacancy on the 
 bench of the Supreme Court of the United States. Both, as 
 we have previously related, were conspicuous corporation 
 lawyers ; and of Peckham's advocacy of corporate interests 
 we have more to say in the next chapter. But belonging, as 
 Hornblower and Peckham did, to a wing of the Democratic 
 Party in New York State opposed to Senator David B. Hill, 
 that politician made their nominations a personal fight, and 
 succeeded in squelching each in turn. 
 
 These nominations having been thus defeated, Cleveland was 
 forced into the position of nominating someone whom the 
 Senate was likely to confirm. 
 
 8 Congressional Record, Fifty-third Congress, Second Session, Vol. 
 XXVI: p. 1773- 
 
 9 Ibid,
 
 7IO HISTORY OF THE SUPREME COURT 
 
 White Withholds His Resignation. 
 
 On February 19, 1894, Cleveland nominated White as an 
 Associate Justice of the Supreme Court of the United States. 
 The fact that White, instead of resigning his seat in the 
 Senate immediately, remained there during the sugar-provision 
 contest, aroused caustic criticism. Leading Democratic news- 
 papers commented sharply upon his retaining his seat during 
 the very time that legislation was being put through for the 
 further enrichment of the sugar-cane planters. Thus, the 
 New York World, the foremost and most influential advocate 
 of Cleveland's reelection in 1892, editorially denounced Sen- 
 ator White's conduct as " a disgraceful spectacle," and further 
 declared that White was unfit to be a Justice of the Supreme 
 Court of the United States. 10 Other newspapers published 
 similar opinions. In fact, Senator White did not resign his 
 seat in the United States Senate until March 8, 1894. 
 
 The Safety Appliance Act. 
 
 But while thus criticizing Senator White, the newspapers 
 in question, it may be parenthetically remarked, refrained from 
 giving him the great credit he deserved for his extremely good 
 and able work in the Senate, in 1893, in so amending the 
 
 10 Published March 6, 1894. We shall give also an instance of criti- 
 cism from a .Republican newspaper the New York Tribune which, 
 on February 20, 1894, charged that White had occupied himself mainly 
 to defeat the Administration's tariff bill, "bulldozing the Finance Com- 
 mittee's ' steerers ' with the threat to vote against it unless a liberal 
 measure of protection were guaranteed to the Louisiana sugar inter- 
 ests." And referring to White's appointment as an Associate Justice 
 of the Supreme Court of the United States the Tribune account con- 
 tinued : " It is whispered, indeed, that Mr. White's appointment to-day 
 may have been largely due to a feeling on the part of friends of the 
 Wilson bill that its chance of passage might be improved if the senior 
 senator were gotten out of the way, and some less active and influential 
 advocate of the sugar interest should replace him on the Louisiana 
 delegation in Congress." But, as we have said, White did not resign his 
 seat until the following month.
 
 UNDER CHIEF JUSTICE WHITE 711 
 
 Safety Appliance Act that it operated to the advantage of the 
 workers in personal injury cases. 
 
 The railroad magnates had so trickily framed the bill that 
 while the injured worker would have been relieved from the 
 charge of contributory negligence, the courts could have held 
 that he had assumed the risk. Senator White had never been a 
 railroad attorney. But he was a good lawyer. He exposed 
 the shallowness of the clause as it originally stood, and 
 amended it by striking out the words " shall not be deemed 
 guilty of contributory negligence," and by substituting " shall 
 not be deemed thereby to have assumed the risk thereby 
 occasioned." His excellent amendment was finally adopted. 11 
 
 To return, however, to the tariff bill : 
 
 Successive great scandals had arisen over the manipulation 
 of the tariff bill, especially the sugar clauses. So numerous 
 and insistent were the charges that Senators were buying and 
 selling sugar-trust stock (the market value of which they 
 could affect at will by their votes) that Peffer, a Populist Sena- 
 tor, moved for an investigation. This resolution was voted 
 down. But the charges were made with renewed force ; the 
 Senate finally, upon motion of Lodge, then in the " reformer " 
 stage of his career, virtuously decided to appoint an investi- 
 gating committee. 
 
 Investigation of Sugar-Stock Jobbing. 
 
 Now ensued an edifying situation. Witnesses conveniently 
 " disappeared " or " refused to appear." H. O. Havemeyer, 
 the head of the Sugar Trust, actually whistled at the commit- 
 tee, and laughed at its proceedings. There was loud talk of 
 bringing contempt proceedings against him, but it was merely 
 vapor; no one believed that the committee was disappointed 
 at not getting evidence incriminating Senators personally. 
 
 11 The Congressional Record, Fifty-Second Congress, Second Session, 
 Vol. 24, Part II : 1480-1481.
 
 712 HISTORY OF THE SUPREME COURT 
 
 Havemeyer was cynically willing to give general testimony, but 
 point blank refused to be specific as to individuals. 
 
 When asked if he contributed to State campaign funds, he 
 genially replied: ". . . We always do that. ... In 
 the State of New York when the Democratic majority is 
 between 40,000 and 50,000, we throw it their way. In the 
 State of Massachusetts, when the Republican party is 
 doubtful, they have the call. Wherever there is a dominant 
 party, wherever the majority is very large, that is the party 
 that gets the contribution, because that is the party that con- 
 trols local matters." 12 This was the same Havemeyer who 
 as the head of the Sugar Trust cheated the Government later 
 out of enormous sums in custom-house frauds. These sums 
 ran into the tens of millions of dollars, and when the frauds 
 were discovered^ Havemeyer was so thoroughly frightened 
 that his death, in December, 1907, soon followed. The Sugar 
 Trust was (to repeat) compelled to pay as restitution to the 
 Government more than $2,000,000, but this was only a slight 
 disgorging of the immense total of plunder. 13 
 
 What the Reports Showed. 
 
 Considering this subsequent, proved fraud and corruption 
 carried on by the Sugar Trust, it is altogether likely that the 
 
 12 Senate Report No. 485, Fifty-third Congress, Second Session, June 
 21, 1894. This testimony was simply a paraphrase of Jay Gould's 
 formula, as expressed in 1873 : " In a Republican district I was a 
 Republican ; in a Democratic district, a Democrat ; in a doubtful district 
 1 was doubtful; but I was always for Erie." 
 
 13 Said the Annual Report for 1909 (p. 12) of the U. S. Attorney- 
 General : ". . . The evidence in the suit above referred to revealed 
 a long-continued system of defrauding the Government, of unparal- 
 leled depravity." The report further stated that in April, 1909, a com- 
 promise was made whereby the American Sugar Refining Company 
 paid the Government a judgment of $134,411.03, and, in addition, the 
 sum of $2,000,000 as restitution for custom-house frauds. " The evi- 
 dence has disclosed a network of corruption extending over a period of 
 years . . .," wrote the Attorney-General. But the heads of the 
 trust completely escaped punishment,
 
 UNDER CHIEF JUSTICE WHITE 713 
 
 charges of corruption made against it in 1894 were far from 
 being ill-founded. 
 
 The Democratic majority report of the Senate Investigating 
 Committee was of a " whitewashing " nature, inculpating 
 nobody. But the Republican minority report of Senator 
 Lodge showed that the Sugar Trust magnates Havemeyer, 
 Searles and others had " addressed their arguments " prin- 
 cipally to Senator Gorman and other Democratic Senators. 
 Allowance should be made for the partisan character of both 
 reports. ""It appears," said the Lodge report, "by the testi- 
 mony of Senator Vest, that Senator Brice, of Ohio, Senator 
 Smith, of New Jersey, Senator Hill, of New York, and 
 Senators White and Caffery, of Louisiana, after said con- 
 ference [a Democratic caucus] came to the rooms of the 
 finance committee in regard to the sugar schedule. Senator 
 Vest testified that Senator Gorman urged a duty of forty 
 per cent, ad valorem, and one-fourth of a cent a pound dif- 
 ferential in favor of refined sugars as the proper schedule." 
 
 Gorman's purpose thus was to double the tariff schedule 
 on sugar. Instead of the $20,000,000 gift a year to the 
 Sugar Trust which the one-eighth of a cent a pound schedule 
 would present to the Sugar Trust, Gorman sought to make 
 the schedule one-fourth of a cent a pound, thus giving the 
 Sugar Trust a donation of $40,000,000 annually. At this 
 point Senators White and Caffery interfered, and prevented 
 Gorman's complete plan from succeeding; White and Caf- 
 fery were evidently not susceptible to the arguments of 
 the Sugar Trust, like Gorman, Brice and others. The Sugar 
 Trust, however, obtained a high enough tariff. As for the 
 sugar-cane and beet growers, they eventually received their 
 equivalent. The bounty act, repealed in 1894, was restored 
 in 1895. 
 
 The Sugar Trust had already planned to control the large 
 cane and beet-sugar producing interests. By the year 1904 
 it had carried the process to the point where it had acquired,
 
 714 HISTORY OF THE SUPREME COURT 
 
 controlled or dominated fifty-five corporations, and held con- 
 trol of from seventy to ninety per cent, of the industry, in- 
 cluding raw and refined sugar-cane and beet production. 1 * 
 In its voluminous suit filed against the Sugar Trust, on No- 
 vember 28, 1910, the Government charged, among many other 
 allegations, that the American Sugar-Refining Company (the 
 Sugar Trust) held stock in, or control over, various cane-sugar 
 and beet companies. 
 
 Explaining this development, we can now revert to what 
 further happened in 1894-1895. 
 
 White as a Sugar Bounty Beneficiary. 
 
 On March i, 1894 the United States Senate adopted a reso- 
 lution calling upon Carlisle, Secretary of the Treasury, for a 
 statement showing the names of individuals, firms and corpor- 
 ations who had received gratuities under the sugar bounty act. 
 Carlisle sent in a specific report giving the requested state- 
 ment, which report did not cover all the years from 1890; it 
 dealt only with the fiscal year 1892-1893, and part of the 
 fiscal year up to March i, 1894. This report showed that 
 of the total of about '$10,000,000 a year being paid by the 
 Government in sugar bounties, the Louisiana sugar planters 
 were receiving $8,500,000 a year. 15 The itemized list of 
 beneficiaries revealed that Senator Edward D. White had 
 received $31,367.06 in bounties from the Government for the 
 fiscal year 1892-1893, and $18,186.86 for a part of the fiscal 
 year up to March i, i894. ic 
 
 The Government challenged the constitutionality of the sugar 
 bounty act; it undoubtedly could be construed as being legis- 
 
 14 Moody's " Truth About The Trusts," p. 67. Moody states that its 
 element of monopoly consisted principally of strong tariff bounties, 
 control of raw material, etc. 
 
 15 Senate Executive Document No. 61, Fifty-third Congress, Second 
 Session. 
 
 16 See page 15 of Ibid.
 
 UNDER CHIEF JUSTICE WHITE 715 
 
 lation for a favored class. When the Government refused 
 to continue bounty payments under the act, the sugar-cane 
 growers brought two test suits. One case was that of Realty 
 Company, the other that of Gay, against the United States. 
 The lower courts decided against the Government which now 
 appealed to the Supreme Court of the United States. 
 
 Sugar Bounty Act Upheld. 
 
 The decision of this court was handed down on May 25, 
 1896. Justice Peckham wrote the court's decision ; there was 
 not a single dissenting opinion. Before giving this decision 
 we will remind the reader that only the year before on Jan- 
 uary 21, 1895 the Supreme Court of the United States had 
 declared the Sugar Trust not to be a criminal combination, and 
 on May 27, 1895, it had, on an entirely extraneous point, 
 affirmed the sentence of Eugene V. Debs to six months in 
 jail. 
 
 In the sugar bounty cases the decision brought out the fact 
 that the act of 1890 was to run for fifteen years; that under 
 it the Government had already paid out tens of millions of 
 dollars in bounties, and that the question of its constitution- 
 ality was not raised by the Government until 1895. 
 
 The decision was wholly in favor of the sugar-cane and 
 beet planters upon two main grounds one, that the planters 
 had acquired a vested right in legislation, the other ground 
 that this right was intrenched by the doctrine of acquiescence. 
 Let us, however, quote Justice Peckham's exact language. 
 
 ". . . Under that act and during its existence," he 
 wrote, " large sums of money were paid to sugar manufac- 
 turers as a bounty, and all manufacturers continued to manu- 
 facture in reliance upon .its provisions. During those years 
 no officer of the Government questioned the validity of the 
 act, and the bounties under it were paid without objection 
 or any hint that objection would thereafter be taken while
 
 716 HISTORY OF THE SUPREME COURT 
 
 the law was in force. This condition continued for about 
 three years." 
 
 Its Unconstitutionally " Immaterial." 
 
 Peckham went on : 
 
 " In our opinion it is not correct to say that no moral, 
 equitable or honorable obligation can attach in favor of per- 
 sons situated as were the defendants here, when the act of 
 1895 was passed. We think obligations of that nature may 
 arise out of such circumstances." Then followed this re- 
 markable doctrine : " We regard the question of the uncon- 
 stitutionality of the bounty provisions of the act of 1890 as 
 entirely immaterial to the discussion here. These parties did 
 not at the time (when manufacturing under its provisions) 
 know that it zvas unconstitutional. 17 
 
 ". . . But it is said that if an act be unconstitutional the 
 law imputes to these parties at all times a knowledge of its 
 invalidity, and that it is not rendered valid by acquiescence in 
 its provisions for any length of time even by officers of the 
 government holding the highest places therein and who are 
 charged with its execution and believe in its validity. . . ." 
 Peckham went on to say that in such a case as this, knowl- 
 edge of its unconstitutionality could not be imputed to the 
 beneficiaries. " These parties cannot be held bound, upon 
 the question of equitable or moral consideration, to know 
 what no one else actually knew, prior to the determination by 
 some judicial tribunal, that the law was unconstitutional." 
 The beneficiaries had arranged their business affairs in ex- 
 pectation of receiving the bounties and, therefore, " We are 
 of the opinion that the parties situated as were the plaintiffs 
 in these actions, acquired claims of an equitable, moral and 
 honorary nature." 16 
 
 17 163 U. S. Reports, 437. The italics are mine. G. M. 
 
 18 Ibid., 439. My italics. G. M.
 
 UNDER CHIEF JUSTICE WHITE 
 
 A Classic Example. 
 
 If anyone be disposed to look for a classic example of class 
 decisions, this case will abundantly suffice. 
 
 It is to be noted that the trifling question of constitutionality 
 of an act was " entirely immaterial." The principal attorney 
 for the sugar-cane growers was Joseph H. Choate, the same 
 who for a large fee successfully argued at that very time that 
 the income tax was unconstitutional. The Justice writing the 
 decision was, as we have said, Peckham, who later wrote the 
 decision (which we have previously described) declaring that 
 a New York law decreeing shorter hours for bakeshop workers 
 was unconstitutional. The people at large and the working 
 class in particular had, it was clear to the Supreme Court, no 
 vested right in legislation for their benefit ; they acquired no 
 claims of "an equitable, moral and honorary nature " in legis- 
 lation. But capitalists draining the Government treasury of 
 tens of millions of dollars unquestionably had those claims, 
 according to the exalted Supreme Court. On the question of 
 labor legislation, the issue of unconstitutionality was very 
 material ; on that of capitalist interests, it was " entirely imma- 
 terial." 
 
 One of the capitalists profiting from that sugar bounty was, 
 as we have seen, Edward D. White, an Associate Justice of 
 the Supreme Court of the United States at the time the 
 decision was given. But Justice White, in nowise disposed 
 to violate the law forbidding judges from sitting in their own 
 causes, scrupulously refrained from taking any part in these 
 cases, as is evidenced by the following note on the records, 
 " Mr. Justice White did not sit in nor take any part in the 
 decision of these cases." 19 
 
 10 For the record of the cases in full, see, U. S. vs. Realty Company 
 and U. S. vs. Gay, 163 U. S. Reports, 427-444. According to the best in- 
 formation obtainable, Chief Justice White's plantation is managed on 
 more or less obsolete methods, and its machinery is more or less anti- 
 quated.
 
 718 HISTORY OF THE SUPREME COURT 
 
 Of Justice White's stand in decisions affecting various 
 questions during the years he was an Associate Justice suf- 
 ficient details have already been given in previous chapters. 
 
 We shall now take up the careers of various men appointed 
 by Taft as Associate Justices. 
 
 Justice Lurton's Career. 
 
 The first of these was Horace H. Lurton. He was sixty- 
 five years old at the time of his appointment. Admitted to 
 the bar in Tennessee, in 1867, Lurton at once became a cor- 
 poration attorney. The court records show that as early as 
 1870, when he was the age of twenty-six years, Lurton was 
 an attorney for the Louisville and Nashville Railroad. 20 It 
 may be explained that the Louisville and Nashville Railroad 
 has controlled politics in its territory almost as absolutely as 
 the New .York, New Haven and Hartford in Connecticut, the 
 Boston and Maine in New England or the Southern Pacific 
 in California. Lurton continued in practice until appointed 
 a State Chancellor in 1875 m which judicial office he served 
 three years. 
 
 In 1878 he resumed law practice as a member of the firm 
 of Baxter, Lurton and Quarles. The Baxters had for many 
 years represented the East Tennessee and Virginia Railroad, 
 the Western Atlantic Railroad and other railroad systems. 21 
 The firm of Baxter, Lurton and Quarles were attorneys for 
 the Louisville and Nashville Railroad; considering Lurton's 
 later decisions, when a United States Circuit Court judge, 
 regarding damages for injuries, it is worth noting that one 
 suit that the firm defended upon appeal for the Louisville and 
 Nashville Railroad in December, 1878, was an action brought 
 by a wagon driver for injuries. 22 At the same time Lurton 
 was interested in banking matters. 
 
 20 Tennessee Reports, Vol. 54: 254-261. 
 
 21 See, Heiskell's Tenn. Reports, Vols. i to 12. 
 
 . & N. R. R. vs. Gardner, I Lea (Tenn.) Reports, 688.
 
 UNDER CHIEF JUSTICE WHITE 719 
 
 In 1884 Lurton became a member of the firm of Smith and 
 Lurton. The firm had previously been that of Smith and 
 Allison. Ed. Baxter and Smith and Allison had frequently 
 appeared for the Louisville and Nashville Railroad. 23 John 
 and W. M. Baxter were also attorneys for the Union Con- 
 solidated Mining Company -* and some of the Baxters were 
 financially interested in Tennessee coal mines. 
 
 Lurton, in 1886, was elected a judge of the Supreme Court 
 of the State of Tennessee. The by no means unusual situa- 
 tion was now seen of a former railroad attorney deciding 
 cases involving the interests of that same railroad. If ante- 
 cedents of this character had been regarded as a positive dis- 
 qualification, few judges would have been able to sit in 
 judgment; the courts everywhere were full of judges who had 
 been former railroad attorneys. 
 
 The Lahr Case. 
 
 One of the cases decided by Judge Lurton was the suit of 
 J. M. Lahr against the Louisville and Nashville Railroad. A 
 carpenter employed by the railroad company, Lahr was work- 
 ing on a high railroad trestle. On the day on which he was 
 injured, Lahr asked his foreman, Ligar, if the rope used for 
 descending purposes was all right. The foreman said " Yes." 
 As a matter of fact, the rope was not fastened but was lying 
 in a loose coil on the top of the bridge. When Lahr took 
 
 23 See, VIII Heiskell's Reports, 735 ; VIII Lea's Reports, 439, etc., 
 and XIV Lea's Reports, 130, in which last-named action Baxter, Smith 
 and Allison and John H. Henderson represented (1884) the Louisville 
 and Nashville and Great Southern Railway. See, also, XII Lea's Re- 
 ports, 574, in which Smith and Allison and Edward W. Baxter were 
 attorneys for the Louisville and Nashville Railroad ; XIV Lea's Reports, 
 65, in which Smith and Allison appeared for the same railroad, and 
 X Lea's Reports, 58, in which John Allison, Jr., and W. M. Baxter 
 represented the East Tennessee, Virginia and Georgia Railroad. Also, 
 XII Lea's Reports, 35 and 47, giving W. M. Baxter's appearance for 
 the last-mentioned railroad. The foregoing appearances were between 
 the years 1881 and 1884. 
 
 24 V Lea's Reports, 3.
 
 72O HISTORY OF THE SUPREME COURT 
 
 hold of it to descend he was thrown forty feet to the ground, 
 and a number of his bones were crushed. He brought suit 
 for damages, and obtained a judgment in the lower courts. 
 
 When the case came up on appeal, Judge Lurton, on Feb- 
 ruary 4, 1888, reversed the judgment and remanded the case 
 for a new trial. This he did on the " fellow servant " doc- 
 trine. The railway company, said Judge Lurton, was in no 
 way responsible ; the fault was the foreman's, and the foreman 
 was simply a fellow servant of Lahr. " The absence of suf^ 
 ficient proof," Judge Lurton said, " that any duty rested upon 
 Ligar to see to the means of descent used by his fellow work- 
 men, and the fact that Lahr did not notify Ligar of his pur- 
 pose to descend, and that the proof clearly established the 
 fact that he was acting under no immediate orders from Ligar 
 in attempting to descend, makes the case one of mere personal 
 negligence of Lahr for which the master is not responsible. 
 In other words, they were fellow servants." 25 
 
 The irony of this decision lay in the fact that if Lahr had 
 not kept to his work which consisted in going up and down 
 the bridge he would have been discharged. That was a 
 part of his work, and every reasonable construction of law re- 
 quired the company, through the foreman, to see that he had 
 safe appliances. 
 
 " Pauper Oath " Recommended. 
 
 Another such case decided by Judge Lurton (on February 
 17, 1891) was that of Smith against the Louisville and Nash- 
 ville Railroad. The action was one for damages for the 
 death of a parent killed on the railroad. But the son was 
 very poor, and could not give bond for the costs of the suit. 
 The lower court, therefore, would not allow him to sue. He 
 applied for a writ of error, and the motion came before Judge 
 
 25 See, Southwestern Reporter, Vol. VI : 663-665.
 
 UNDER CHIEF JUSTICE WHITE 721 
 
 Lurton who held that no suit could be brought where there 
 were no assets to bear the expense of the suit. When dis- 
 missing the case, Judge Lurton with a fine delicacy added : 
 " There seems to have been no point made upon the right of 
 the administrator to prosecute the appeal under pauper oath. 
 The point ought to have been made, but was not; it was, 
 therefore, not decided." 26 
 
 In literal law, Lurton was doubtless right, but this case 
 ranks as an instructive illustration of the conscientious pre- 
 cision with which the courts construe capitalist law against 
 the workers In the previous case, that of Lahr, Lurton ap- 
 plied the most " liberal construction " of law in deciding in 
 favor of the railroad corporation. In this case the last letter 
 and dot of law was construed with granite inflexibility against 
 a destitute worker. The railroad had killed his parent, and 
 because of this he was left penniless; he was then debarred 
 from suing for damages since " he had no assets to bear the 
 expense of the suit." Here was another illustration of the 
 sad enough fact that poverty was not merely a crime; it was 
 a catastrophe. 
 
 Slaughter of the Workers. 
 
 Judge Lurton, like other judges, could not or did not care 
 to see the ravaged, broken-up homes of the workers, deso- 
 lated by premature and clearly preventable death, and the 
 appalling misery following the slaughter of the toilers upon 
 whom the maintenance of those homes depended. 
 
 The annual carnage of the workers on railroads and in 
 factories and mines was truly dreadful, and more destructive 
 than the most sanguinary wars mankind has known. If any- 
 thing, working conditions, thanks to the insistence of the 
 workers, were a shade better in 1908 than in previous decades. 
 
 26 Southwestern Reporter, Vol. XV : p. 842.
 
 722 HISTORY OF THE SUPREME COURT 
 
 But still they were so abominable that between 30,000 and 
 35,000 adult wage workers were slain every year, and not 
 less than 2,000,000 workers were annually injured. This 
 estimate, a conservative one as the Federal report expressly 
 says, took no account of women and child workers. 27 Nor did 
 it include the vast number of disabilities, diseases and deaths 
 indirectly caused by the processes of capitalist industry. 
 
 Intrenching themselves behind their law books, the judges 
 professed not to see these frightful and hideous conditions; 
 and they insisted that their sole function was to construe law 
 as they found it. A plausible enough defense, if it had 
 not happened that as attorneys nearly all of them had repre- 
 sented railroad and other corporations which had savagely 
 fought every attempt of the workers to better their condi- 
 tions, and which regarded the immolation of men, women 
 and children as of no consequence so long as it did not inter- 
 fere with the flow of profits. 
 
 The foregoing are examples of cases decided by Judge 
 Lurton when on the Supreme Court of Tennessee. 28 But Lur- 
 ton did not invariably decide in favor of his former clients, the 
 Louisville and Nashville Railroad. In a minor case, Judge 
 Lurton's decision was adverse to that corporation. But the 
 evidence in this case was incontrovertible, and moreover the 
 suit was not brought by a private person but by the State 
 of Tennessee. It involved the question of whether the rail- 
 road company could be fined $50 for obstructing a highway. 
 Lurton affirmed the judgment of the lower court. 
 
 "See, Bulletin No. 78, Sept., 1908, U. S. Bureau of Labor. The 
 report explains that it would have been possible to save at least one- 
 third or one-half of these lives by rational methods of factory inspec- 
 tion and control. 
 
 28 See, also, Louisville and Nashville Railroad vs. Mossman, XVI 
 Southwestern Reporter, 64. In the lower court Mossman had recov- 
 ered damages for overflow of his lands caused by the railroad's high 
 embankment. Judge Lurton reversed that decision on the ground that 
 by long usage the railroad company had acquired by prescription the 
 right to flow back the water upon the adjoining land.
 
 UNDER CHIEF JUSTICE WHITE 723 
 
 Lurton Becomes a Circuit Judge. 
 
 In 1893, President Cleveland appointed Lurton a Judge of 
 the United States Circuit Court, Sixth Circuit, embracing 
 Ohio, Kentucky, Tennessee and adjacent territory. On the 
 Circuit Court at Cincinnati, Taft and Lurton were associated 
 on the Bench, and became intimate friends. 
 
 Decisions favorable to corporations were constantly handed 
 down. One decision arousing much comment was that in 
 the case of Hunter vs. the Kansas City and Missouri Railroad 
 Company. Hunter was a laborer engaged to set up poles 
 along the company's lines. The boss, Bob Snowdon, slipped 
 while the pole was being placed in a hole, the pole fell and 
 knocked down Hunter, seriously injuring him. Judge Lur- 
 ton decided (February 8, 1898,) that Snowdon had slipped 
 because the work had to be done in a slippery place, and that 
 there was no evidence that Snowdon was at fault ; he " slipped 
 because of the slippery character of the ground." 29 
 
 James M. Hennessy was the foreman of a switching crew 
 in the Chesapeake and Ohio Railroad Company's yards at 
 Russell, Kentucky. While coupling cars, he was severely 
 injured. He sued, and was awarded damages in the lower 
 courts. 
 
 The railroad company appealed. This appeal came up before 
 Circuit Judges Taft and Lurton and District Judge Clark 
 on October 3, 1899. Lurton wrote the Court's decision, twist- 
 ing Taft's decision in a previous case so as to cover this case. 
 The United States safety-appliance law clearly provided that 
 no railroad company should use cars with defective couplings. 
 This being so, Lurton's findings were received with amaze- 
 ment. Lurton wrote in his decision that Hennessy knew 
 that the great majority of cars on the repair tracks were de- 
 fective and that to get cars from the tracks was a part of 
 Hennessy's duty. " Manifestly," Judge Lurton continued, 
 
 29 85 Federal Reporter, 379.
 
 HISTORY OF THE SUPREME COURT 
 
 " his duty involved the handling of cars not fitted for use, 
 and dangers not incident to the ordinary work of one engaged 
 in the ordinary operation of trains of cars." In such a case, 
 Lurton declared, a man voluntarily assumed risk. Lurton 
 reversed the judgment of the lower court. 30 
 
 Constitutional Right to be Killed. 
 
 Here was seen the beautiful finesse of court decisions. 
 
 If the railroad workers had gone on strike against having 
 to handle unsafe cars (which cars the law prohibited) troops 
 would probably have been ordered out against them. Every 
 capitalist newspaper would have distorted and denounced the 
 purposes of the strike. If all railroad workers had declined 
 to risk mangling and death by handling stich cars, the railroads 
 could not have been operated ; bondholders and stockholders 
 do not operate railroads. In such a case scabs and thugs 
 would have been imported to break the strike. 
 
 By consenting to take unsafe jobs and handling obsolete cars 
 the workers were doing an immense, although unappreciated, 
 favor to the railroad corporations, which in order to increase 
 their profits, were ready at all times to avoid going to expense 
 in equipping cars with safety appliances. But Judge Lurton 
 steps in and lays down the wonderful doctrine that a worker 
 has the perfect right to be mangled or killed. The constitu- 
 tionality of this right has never yet been questioned by those 
 who have evinced such solicitude that the Constitution should 
 not be violated. 
 
 Of this " constitutional right " of the workers to get 
 killed, Judge Lurton was one of the most conspicuous ex- 
 ponents. There was the case of John T. Hazlerigg, whose 
 arm was crushed while coupling cars on the Norfolk and 
 Western Railroad at Williamson, Virginia. Hazlerigg was 
 taken to the railroad's hospital where his arm was amputated, 
 
 30 96 Federal Reporter, 713.
 
 UNDER CHIEF JUSTICE WHITE 725 
 
 and where he remained five or six weeks. During the worst 
 period of his suffering, an agent of the railroad generously 
 persuaded him to sign an absolute release for all damage claims 
 in consideration of giving him $25 in cash, a pass over the rail- 
 road and $2.75 for further transportation. 
 
 When Hazlerigg left the hospital he realized how for a 
 wretched $27.75 P al ^ f r tne l ss f an arm > tne railroad 
 company had wheedled him into signing a release. He 
 brought suit. When he had signed the paper, he testified, he 
 was destitute of money, had no job and no suitable clothing, 
 and was worn down by suffering and by a malady which af- 
 fected his mind. He did not read the paper, he stated, and 
 did not know what he was doing when he signed it. 
 
 The jury in the lower court awarded Hazlerigg damages, 
 but when the railroad appealed, Judge Lurton set aside the 
 judgment, on the ground that " there was no evidence to sup- 
 port Hazlerigg's statements," and that the jury should have 
 been told that Hazlerigg was possibly guilty of " contributory 
 negligence." 
 
 Judge Lurton stanchly defended the right of Hazlerigg " to 
 quit his job "; to Lurton this was a precious privilege of which 
 no worker should be deprived (when, of course, he did it 
 "individually" and not in mass). But if the worker, com- 
 pelled to remain at his perilous duty by want, did not quit 
 but was forced by the same stern necessity to disregard the 
 dangerous condition of the cars, then he became guilty of 
 " contributory negligence," " voluntary assumption of risk,'' a 
 " fellow servant " accomplice and other theoretical offenses, 
 all devised for the special fine-spun purpose of relieving capi- 
 talists from the necessity of paying damages to mangled 
 workers who had produced their profits. 
 
 This was the species of " law " inflicted on the working class, 
 especially upon its most helpless members ; and being so, it is 
 not astonishing that the workers should have regarded " la\y M 
 as a terrific and cruel instrument of tyranny.
 
 726 HISTORY OF THE SUPREME COURT 
 
 The Delk Case. 
 
 But perhaps the decision in the case of E. M. Delk was 
 the most flagrant of all of Judge Lurton's decisions. 
 
 Delk was a switchman on the St. Louis and San Francisco 
 Railroad; he was thirty years old in 1906, had been working 
 on railroads since he was a lad, was receiving $80 a month 
 pay, was married and had a child. 
 
 On October 4, 1906, while Delk was switching certain cars 
 out of a string of nine freight cars at Memphis, a car with a 
 defective coupler broke loose. Delk's foot was cruelly mashed. 
 Delk brought suit and was awarded $7,500 damages by a jury. 
 But the trial judge compelled him to remit $2,500 of this 
 amount or be forced to go through a new trial ; this deduc- 
 tion reduced the judgment to $5,000. We shall now further 
 quote one of Delk's attorneys, T. F. Kelly of Memphis: 
 
 " Delk is a man of meager education and knows nothing 
 except railroading having been in the railroad service about 
 sixteen years. 
 
 " He was blacklisted by the railroad companies of Mem- 
 phis after he brought suit, and none of them would give him 
 a job because he had entered suit against one of the roads. 
 Of course he could not pass an examination under the rigid 
 rules now in force, as he has only one good foot." 
 
 The railroad company appealed from the judgment of the 
 lower court in favor of Delk. The appeal came before Judges 
 Lurton, Severans and Richards in the United States Circuit 
 Court of Appeals, on March 3, 1908. 
 
 An Amazing Decision. 
 
 Lurton and Severans each wrote opinions in favor of the 
 company, reversing the lower court's judgment. They said 
 that it seemed unjust and unreasonable to say that having ful- 
 filled its utmost duty the railroad company should be held re-
 
 UNDER CHIEF JUSTICE WHITE 727 
 
 sponsible for conditions which might occur without its fault. 
 Judge Richards handed down an indignant dissenting minority 
 opinion, concluding thus : " A car loaded and being used in 
 interstate traffic was found with a defective coupler. The car 
 was marked ' In Bad Order,' and a repair piece sent for. 
 After thus being notified of its condition, the car should have 
 been withdrawn; but it was not, and the company kept mov- 
 ing it about in connection with other cars, and finally ordered 
 the injured employe to couple it to another car. This he tried 
 to do, with the natural result, and he was crippled for life. 
 The case amply justifies the verdict and the judgment should 
 be affirmed." 31 
 
 The decision of Lurton and Severans caused the utmost as- 
 tonishment among non-corporation lawyers. Such was the 
 amazement over the decision in the Delk case that the Supreme 
 Court of the United States, shortly after, took particular pains 
 to disapprove of it in strong language, although the Delk case 
 was not then before it. In deciding the parallel case of the St. 
 Louis and Iron Mountain Railway Co. vs. Taylor, Justice 
 Moody in writing the Court's opinion referred to the Delk de- 
 cision and wrote: 
 
 " In deciding the questions thus raised upon which courts 
 have differed (St. Louis & S. F. Railroad vs. Delk, 158 Fed. 
 Rep., 931), we need not enter into the wilderness of cases upon 
 the common-law duty of the employer to use reasonable care 
 to furnish his employe reasonably safe tools, machinery and 
 appliances, or to consider when and how far that duty may 
 be performed by delegating it to suitable persons for whose 
 default the employer is not responsible. . . . The Con- 
 gress not satisfied with the common-law duty and its resulting 
 liability, has prescribed and defined the duty by statutes. We 
 have nothing to do but to ascertain and declare the meaning 
 of a few simple words in which the duty is described. It is 
 enacted that ' no cars, either loaded or unloaded, shall be used 
 
 31 158 Federal Reporter, 931.
 
 728 HISTORY OF THE SUPREME COURT 
 
 in interstate commerce traffic which do not comply with the 
 standard.' 
 
 " There is no escape from the meaning employed to confuse 
 them or lessen their significance. ... If the railroad does, 
 in point of fact, use cars which do not comply with the stand- 
 ard, it violates the plain prohibition of the law, and there 
 arises from that violation the liability to make compensation 
 to one who is injured by it." 32 
 
 After the Supreme Court of the United States had expressed 
 this sharp opinion, Delk's attorney on June 27, 1908, made a 
 motion in the Circuit Court of Appeals that the case be re- 
 heard, but Judge Lurton and Severans curtly refused without 
 stating any reason. Judge Richards again indignantly dis- 
 sented from their stand. Delk's lawyer then appealed the case 
 to the Supreme Court of the United States. 
 
 The crippling of Delk happened, as we said, on October 4, 
 1906. More than four years had passed, and Delk had not 
 been able to collect a single cent in damages. For nearly a 
 year and a half after the accident, Delk had been unable to do 
 any work whatever. Blacklisting then followed. Finally he 
 obtained a job as crossing flagman at a salary of about $35 
 a month, on which he had to support himself and family. Al- 
 though he did not lose his foot entirely, yet we are informed 
 he would have been far better off without that mangled rem- 
 nant ; so badly was the foot crushed that it keeps him in con- 
 tinual pain, and may yet possibly result in his death. 
 
 Supreme Court Reverses the Decision. 
 
 Delk's attorney, T. F. Kelly, appealed from Lurton and Sev- 
 erans' decision to the Supreme Court of the United States. 
 When this appeal was heard in 1911, Justice Lurton was a 
 member of that Court, but he did not participate in the decision. 
 The railroad company fought the appeal stubbornly, and was 
 
 32 210 U. S- Reports, 294.
 
 UNDER CHIEF JUSTICE WHITE 729 
 
 represented by many attorneys from different parts of the 
 country. But the facts and the law were too strong for them. 
 By an unanimous decision the Supreme Court of the United 
 States reversed the Circuit Court of Appeals decision of Judges 
 Lurton and Severans, and affirmed the verdict of the trial court 
 in favor of Delk. 
 
 The corporation contesting so many similar cases was (to 
 repeat) the Louisville and Nashville Railroad. This was the 
 identical corporation which was the prime mover in having 
 various labor laws declared unconstitutional. These were laws 
 such as the twenty-eight hour law, the employers' liability law 
 and other measures that after many years of agitation labor 
 organizations had succeeded in getting passed, only to find 
 them thrown out by the courts. The case of Adair vs. the 
 United States (described in a previous chapter) in which the 
 Supreme Court of the United States declared it to be legal for 
 a corporation to blacklist an employe (while other decisions 
 held that it was illegal for a labor organization to boycott an 
 employer) was instigated by the Louisville and Nashville Rail- 
 road. 
 
 A Decision Pleasing to Harriman. 
 
 Judge Lurton's decisions were uniformly favorable to big 
 corporations. 33 A particularly noted example was in the case 
 of Talbot J. Taylor, representing the interests of James J. 
 Keene, a Wall Street " bear " operator. This, it is true, was 
 only a contest of capitalist groups, and Lurton's decision would 
 nominally deserve no serious criticism were it not that when 
 deciding against maimed and mangled wage workers, he con- 
 tended that he was only construing law. Taylor, in 1903, 
 brought an action to restrain the magnate Harriman from 
 voting $90,000,000 of stock held by the Union Pacific Railroad. 
 
 33 See Case of L. & N. R. R. vs. Central Trust Co., 87 Federal Re- 
 ports, 502, in which Lurton and Severans decided in favor of the rail- 
 road, and other cases.
 
 73 HISTORY OF THE SUPREME COURT 
 
 The Keene group held $30,000,000 of Southern Pacific stock, 
 and if the Union Pacific's $90,000,000 of Southern Pacific 
 stock had been tied up by injunction, Keene's $30,000,000 of 
 stock would have controlled the annual meeting of the Southern 
 Pacific. 
 
 Judge Lurton finally decided that the combination of the two 
 Pacific railroads in issue was not a violation of the Sherman 
 anti-Trust Act. This notwithstanding the fact that the Su- 
 preme Court of the United States only a short time previously 
 had decided that a merger of the Great Northern Railroad and 
 the Northern Pacific Railroad was illegal and had ordered it 
 dissolved. 
 
 Following this decision in favor of Harriman, came those 
 stupendous stockjobbing frauds, some of which we have al- 
 ready, in a previous chapter, cited from the Interstate Com- 
 merce Commission's report, and largely by means of which 
 Harriman, after beginning his career with nothing, acquired 
 an immense fraudulent fortune. 34 
 
 Harriman's Great Frauds. 
 
 The story of these vast frauds is so extensive that it cannot 
 even be summarized here. Every new output in watered stock 
 was followed by a new taxation of the workers in the form 
 of increased freight rates, which, of course, added enormously 
 to the cost of living. At the same time wages remained gen- 
 erally stationary, or were reduced. When Harriman died his 
 estate was at first appraised at $149,000,000, but on later ex- 
 amination was found to be much more. 
 
 During the perpetration of his stockjobbing frauds, Harri- 
 
 34 Keene was conducting a manipulating campaign to get control of 
 the Southern Pacific Railroad. In detailing the secret circumstances the 
 New York Times, issue of December 11, 1907, concluded: ". . . 
 There is little doubt that the refusal of Judge Lurton to make the tem- 
 porary injunction permanent was a source of no small relief to Mr. 
 Harriman and his associates, despite the precautions which they took to 
 make the injunction nugatory, had it been granted."
 
 UNDER CHIEF JUSTICE WHITE 73! 
 
 man was the head of an immense system of corruption. In a 
 statement published on January 2, 1908, Francis J. Heney, 
 who had closely prosecuted political corruptionists on the Pa- 
 cific coast, declared that not W. F. Herrin but Harriman was 
 the real power in the corruption of officials. " According to 
 my deduction," said Heney, " the head of the legal department 
 of the Union Pacific Railroad, W. F. Herrin, was the boss 
 behind the apparent boss [Ruef, the political boss of San Fran- 
 cisco]. But I am convinced that Herron was, after all, the 
 tool of the actual boss, Harriman." We have also seen how, 
 in his historic letter to Sidney Webster, Harriman alleged how 
 after being summoned to the White House by President Roose- 
 velt in the closing days of the 1904 campaign, when Roosevelt 
 was running for reelection, he (Harriman) returned to New 
 York to raise a campaign fund of $260,000 by which " at least 
 50,000 votes were turned in the city of New York, making a 
 difference of 100,000 votes in the general result." 35 Harri- 
 man's personal contribution to this fund was $50,000. 
 
 Did Lurton Use Private Cars? 
 
 During the years preceding the passage of the Hepburn Act 
 of 1906 which prohibited traveling on free railroad passes, 
 Judge Lurton acquired the singular name of " Private-Car 
 Lurton." Whence the significance? It was repeatedly 
 charged in the newpapers, and not denied, that Lurton was one 
 of the Federal judges traveling extensively in sumptuous pri- 
 vate cars supplied by the railroads. The allegation was also 
 
 35 In a letter, dated December 15, 1911, to Theodore Roosevelt, George 
 R. Sheldon, treasurer of the Republican National Committee, gave a 
 different version of this affair. Sheldon stated that it was Odell, Chair- 
 man of the Republican State Committee of New York, and not Roose- 
 velt, who appealed to Harriman for aid through Cornelius N. Bliss, then 
 Treasurer of the Republican National Committee, and that Harriman 
 then raised $160,000 which with $80,000 raised by Bliss, was given di- 
 rectly to Odell. When this letter was published, Odell declined to make 
 any statement.
 
 732 HISTORY OF THE SUPREME COURT 
 
 frequently published that at one time a receivership action 
 brought the question of the management of a certain railway 
 before Judge Lurton. According further to this allegation, 
 Lurton indicated his desire for a private car and the receiver 
 complied. Necessarily there is no proof of this charge, or 
 similar charges, in the formal records. Therefore, we do not 
 pretend to vouch for their authenticity, but simply relate them 
 for what they may be worth, true or false. But the report of 
 Lurton's habitual use of private cars caused so much comment 
 that even the Memphis News-Scimitar, a newspaper friendly 
 to Lurton, frequently published caustic remarks on Lurton's 
 alleged receipt of such favors from railroad corporations. 36 
 
 " He is a man of ability and forcefulness and the graduate 
 of a shrewd school in politics," commented this newspaper on 
 one occasion. " During his career as a judge he has been 
 much criticised for his leaning toward corporations litigant be- 
 fore him. It has been urged against him that during his 
 
 36 Other Federal judges were accused of the same. On January 26, 
 1906, the Kansas City Times, related, in an obscure and perfunctory 
 news item, that Gardiner Lathrop, general solicitor of the Santa Fe 
 Railroad system, had taken a party of friends on a tarpoon fishing expe- 
 dition to Mexico. Among those availing themselves of this free excur- 
 sion on the railroad's cars were Judge John C. Pollock, U. S. District 
 Judge for Kansas ; Judge John F. Phillips, U. S. District Judge for the 
 western district of Missouri, and Judge Smith McPherson, U. S. District 
 Judge for the southern district of Iowa. The judges did not deny taking 
 the trip. 
 
 At the time these Federal judges accepted these railroad favors the 
 constitutionality of the railway freight and passenger rate reduction, as 
 recently passed by the Missouri Legislature, was before the Federal 
 Courts. On June 14, 1005, the date when that law was to go into effect, 
 Judges Phillips and McPherson later granted a temporary injunction 
 against the enforcement of that law. After the return of the party 
 from the fishing trip, Judge McPherson arbitrarily enjoined the rail- 
 roads from obeying the new passenger and freight rate law. In a series 
 of acts, Judge Phillips endorsed Judge McPherson's action which was 
 also subsequently affirmed by Judge Pollock. 
 
 Representative Murphy, of Missouri, preferred charges in Congress 
 against Judges Phillips and McPherson, and Representative Rucker of 
 the same State declared that Judge Phillips should have been impeached 
 twenty years previously. But no impeachment proceedings were ever 
 brought.
 
 UNDER CHIEF JUSTICE WHITE 733 
 
 judgeship he has been the notable recipient of distinguished fa- 
 vors from corporations. He has, for instance, been wont to 
 travel during his vacations upon the private cars of various 
 railroads of the country, with all available courtesies and privi- 
 leges extended with lavish hand to himself and party." 
 
 In a previous chapter we have described at some length the 
 contest among different groups of great capitalists either to 
 retain or secure control of the vast assets of the three principal 
 life insurance companies of New York. We have also given 
 details, as disclosed by the investigation of the New York 
 Legislative Committee, of the corruption enormities systemat- 
 ically carried on by those companies. 
 
 Through his partner, George W. Perkins, 37 J. Pierpont Mor- 
 gan, with his enormous ownership or control of railroad and 
 steamship lines, banks and trusts of many kinds, had long been 
 able to sway the great revenues of the New York Life Insur- 
 ance Company. 38 It may here be mentioned that one of the 
 many railroads controlled by Morgan has been the Louisville 
 and Nashville Railroad. 39 Through his instrument Hyde, the 
 freebooter Harriman partially controlled the Equitable Life 
 Assurance Society; and the Standard Oil Company ruled the 
 Mutual Life Insurance Company. These and other vast pluto- 
 cratic interests had used immense sums of the policy holders' 
 money to finance their trust and manipulating operations, not 
 omitting to enter into " side agreements " by which fraudulent 
 methods they pocketed large personal profits. Starting in the 
 Equitable Life Assurance Society, these capitalist groups be- 
 
 37 For a considerable time before becoming a partner of Morgan, 
 Perkins was vice-president of the New York Life Insurance Company. 
 
 38 At the present writing it is estimated that the stupendous sum of 
 $500,000,000 of money is deposited with the firm of J. P. Morgan and 
 Company. Morgan is a director of sixty-one corporations many of 
 which, such as the Steel Trust, deposit their cash balances with his firm. 
 His financial power is inconceivably vast. His banking firm is a purely 
 private concern, and as such is not subject to the supervision of State, 
 Government or any other authority. 
 
 30 Moody's " The Truth About The Trusts," 434.
 
 734 HISTORY OF THE SUPREME COURT 
 
 gan to fight one another for control of the booty ; and Thomas 
 F. Ryan, who needed the insurance funds to finance his rubber 
 and other trusts, hastened forward to take a hand in the fray 
 and see if he could not gobble one, and perhaps two, of the 
 big insurance companies. 
 
 The Contest for Control. 
 
 What the actual result was is told in the next chapter. Here 
 it is only necessary to deal with the contest for the possession 
 of the New York Life Insurance Company. An " Interna- 
 tional Policyholders' Committee " was formed to oust the par- 
 ticular capitalists in control of the New York and the Mutual 
 Life Insurance Companies. The slogan of this committee was 
 that the investigation has show'n the " ins " to be thoroughly cor- 
 rupt, and a salutary " purifying process " was required. Who 
 it was that supplied the great sum said to have been at least 
 $250,000 that the committee expended in its campaign, was 
 never disclosed. The name of Thomas F. Ryan was confi- 
 dentially mentioned, but there is no available proof that he was 
 the individual. 40 
 
 In voting for the trustees of the New York Life Insurance 
 Company each policy holder has a right to vote. How this 
 provision was long fraudulently evaded we have previously 
 described in the case of the Mutual Life Insurance Company. 
 Of the immense number of policy holders throughout the 
 world, obviously only a few can vote in person. Each of the 
 groups contending for control of the New York Life Insurance 
 Company put up a trustee ticket, and the contest narrowed to 
 a question as to which could secure the most proxies. 
 
 40 In its circular the " International Policyholders' Committee " de- 
 nounced as a falsehood the charge that it was a " Ryan Committee." 
 This committee called upon all policyholders to defeat the " present 
 discredited managements," and install men in their places " who will 
 now and forever separate these companies from Wall Street control."
 
 UNDER CHIEF JUSTICE WHITE 735 
 
 Lurton on the Proxy Committee. 
 
 One of the men whose name was brought forward as a can- 
 didate for trustee on the Morgan " administration ticket " was 
 Judge Horace H. Lurton. The fact that a judge of the United 
 States Circuit Court was thus openly acting as an agent in this 
 contest caused no inconsiderable scandal. It was regarded 
 as politic to withdraw Lurton's name from the trustee ticket. 
 He was then placed on a committee of three, composed of him- 
 self, Rowland G. Hazard and Alba J. Johnson, to solicit and 
 handle proxies for the New York Life Insurance Company 
 election. 41 The " administration " trustee ticket was composed 
 largely of such capitalists or dependents of big capitalists, as 
 Thomas P. Fowler, president of the New York, Ontario and. 
 Western Railroad ; Clarence H. Mackay, president of the Com- 
 mercial Cable Company ; Seth M. Milliken, extensive woolen 
 manufacturer and director in many banks ; John G. Milburn, 
 corporation lawyer; Alexander E. Orr, General Louis Wag- 
 ner, John Reid, Augustus G. Paine and others twenty in all. 
 
 Judge Lurton's serving on the proxy committee aroused an- 
 other scandal and much acidulous comment. The election for 
 trustees of the New York Life Insurance Company was held 
 at the company's main office on December 16, 1906. Confident 
 that they had mustered a majority of the proxies, the " Inter- 
 national Policyholders' Committee " were astounded at what 
 they now witnessed. Judge Lurton had come on direct from 
 the United States Circuit Court of Cincinnati to assist in 
 voting 121,000 proxies which the agents of the company had 
 secretly collected all over the world, and of the existence of 
 
 41 The author has a copy of the published " administration ticket " 
 circular on which Lurton's name duly appears ; his occupation is there 
 described as " Judge of the United States Circuit Court, 6th District." 
 Hazard was a big manufacturing capitalist, and Johnson was a member 
 of the firm of Burnham, Williams and Company, proprietor of the 
 Baldwin Locomotive Works (now controlled by J. P. Morgan) in which 
 plants the workers recently struck, although unsuccessfully, for better 
 working conditions.
 
 736 HISTORY OF THE SUPREME COURT 
 
 which the " International Policyholders' Committee " knew 
 nothing. These and other proxies were voted in by Hazard, 
 Johnson and Lurten for the so-called Morgan ticket. The 
 121,000 proxies had been stored in the New York Life Insur- 
 ance Company's building. Almost as fast as they were brought 
 into the voting room in wash-baskets, boxes, crates, bags, etc., 
 Lurton and his two associates would take the bundles and vote 
 them. 42 It is needless to say that the " administration ticket " 
 won. 
 
 Senator Foraker, Lurton's Friend. 
 
 It can be authoritatively stated that corporation politicians 
 urged President Roosevelt to appoint Lurton to the Supreme 
 Court of the United States, but after inquiring into Judge Lur- 
 ton's record, Roosevelt refused. When Taft succeeded Roose- 
 velt, Lurton succeeded in having himself appointed, in 1909, to 
 the seat made vacant by the death of Associate Justice Peck- 
 ham. His appointment called forth a storm of protests from 
 labor unions and others. There was considerable, but ineffec- 
 tive, opposition from the " progressive " United States Senators 
 to the confirmation of his appointment. Apart from Lurton's 
 having the friendship of Taft, his former colleague on the 
 Bench, Lurton's chief and most insistent pusher was, it was 
 understood, Senator Joseph B. Foraker of Ohio who came to 
 his rescue at the crucial moment. 
 
 Foraker was a noted Ohio politician and railroad lawyer. 
 So thoroughly did he control the Ohio Legislature at one time 
 that it was known as the " Foraker Legislature." He tried to 
 give the street railways of the State a ninety-nine-years' fran- 
 chise with exemption from taxation, but public opposition 
 frightened the politicians. But immediately after the Ohio 
 Legislature had elected him to the United States Senate, For- 
 aker did push through that Legislature, in April, 1896, a bill 
 
 42 The International Policyholders' Committee charged that many of 
 these proxies were fraudulent and invalid.
 
 UNDER CHIEF JUSTICE WHITE 737 
 
 authorizing a fifty-years' franchise to various consolidating 
 street railway lines in Cleveland and in Cincinnati. Public 
 uproar and adverse decisions of the lower courts availed noth- 
 ing; the Legislature passed supplementary acts, and the higher 
 court, known as the " Foraker's Court," held the franchise to 
 be valid in Cincinnati. Foraker appeared in court as the at- 
 torney for the franchise interests ; when the decision favoring 
 them was given, the market value of Cincinnati traction stock 
 went high, and the " inside traction ring," it was said, netted 
 many millions of dollars. 43 The value of the franchise for the 
 Cincinnati Traction Company alone was estimated at $10,000,- 
 ooo. Foraker's son was long vice-president of the Cincinnati 
 Traction Company, and his brother was its counsel. 
 
 Foraker was counsel for Morgan's Southern Railway Com- 
 pany, and in 1896 sought to have the City of Cincinnati sell its 
 holdings in the " Queen and Crescent Railway " to the South- 
 ern Railway Company for a comparatively paltry sum. His 
 proposition was rejected, and later (in 1905) Cincinnati leased 
 the road for between $300,000 and $400,000 a year more than 
 the interest on the terms that Foraker's proposal would have 
 yielded. In the United States Senate, Foraker was notoriously 
 pro-railroad. Foraker's direct connection with John D. Arch- 
 bold, of the Standard Oil Company, was shown when, in 1908, 
 authentic copies of Archbold's letters were produced. In one 
 letter, dated December n, 1900, Archbold sent Foraker a cer- 
 tificate of deposit of $5,000, and in another letter dated Jan- 
 uary 27, 1902, Archbold enclosed a draft for $50,000. " Your 
 letter," wrote Archbold, " states the conditions correctly, and 
 I trust the transaction will be successfully consummated." The 
 exact nature of the transaction was not made clear. 
 
 Senator Foraker admitted the payments, saying that he had 
 been employed by the Standard Oil Company as one of its 
 
 43 It was charged that in addition to his stock profits, Foraker received 
 a fee of $100,000. This he denied, saying that he got only " a present 
 of $5,000" from an officer of the company.
 
 738 HISTORY OF THE SUPREME COURT 
 
 counsel in Ohio, but denied that the payments had anything to 
 do with legislation in Congress. He also asserted that the $50,- 
 *ooo payment " was a loan to a newspaper," and averred that 
 the money " had been returned." Archbold's letter also showed 
 that for years United States Senator Joseph W. Bailey, of 
 Texas, had been a retainer of the Standard Oil interests. 
 
 So Lurton went on the Supreme Court Bench : an industrious 
 but by no means learned lawyer, yet by his big boastful talk 
 giving the impression that he was a giant in knowledge. A 
 small, stout, energetic man, very irritable and excitable, he at 
 no time took pains to conceal his admiration and reverence for 
 wealth and for the master capitalists. 44 
 
 44 When Lurton's appointment was made, a leading member of the 
 Nashville bar, John J. Vertrees, one of the most prominent attorneys 
 for many years for the Louisville and Nashville Railroad, the Standard 
 Oil Company and other corporations, and a personal friend of Lurton, 
 said of Lurton : " In these days judges and lawyers are apt to be classi- 
 fied under two heads ; those who place emphasis on property rights, and 
 those who place the emphasis on personal rights. To the former class 
 belongs Judge Lurton." 
 
 At the time Ballinger, Secretary of the Interior under Taft, was under 
 investigation by a Hous^e Committee in 1910, for having, according to 
 various charges, been the instrument of the Morgan-Guggenheim syn- 
 dicate in their designs upon the ^natural resources of Alaska, Taft se- 
 lected Vertrees to defend Ballinger. Subsequently Ballinger resigned.
 
 CHAPTER XVIII 
 
 THE SUPREME COURT UNDER CHIEF JUSTICE WHITE 
 (CONTINUED) 
 
 The next appointment made by President Taft to the Su- 
 preme Court was that of Charles E. Hughes in 1910, as an 
 Associate Justice to succeed Justice Brewer who died on 
 March 28, 1910. 
 
 Of Justice Brewer we shall finally remark, in passing, that 
 so thoroughly had he indoctrinated law in accordance with the 
 demands of capitalist interests, that when he died only one 
 progressive decision could be attributed to him by his eulogists. 
 This was the decision upholding the constitutionality of the 
 Oregon ten-hour law for women. This law the Supreme 
 Court of the United States affirmed on the principle that a 
 State could constitutionally protect women workers so as to 
 thus conserve the future of the race and the general welfare of 
 society. 
 
 Born in 1862, Hughes was the son of a " hard-shell " Bap- 
 tist minister and was of the same denomination himself. After 
 his admission to the bar, he became a clerk in the law office of 
 Chamberlain, Carter and' Hornblower, of New York City. 
 
 This was a notable corporation firm ; of Walter S. Carter, 
 one of its members, a laudatory biographical account says, 
 " Over one hundred distinguished lawyers have served in his 
 office, such as William B. Hornblower, Lloyd W. Bowers and 
 Paul D. Cravath." Sherburne Blake Eaton, a member of the 
 firm, became chief executive officer of the Edison Electric 
 Light Company in 1881, and its president and general counsel 
 in 1884. Carter's great obsessing hobby was in encouraging 
 
 739
 
 74O HISTORY OF THE SUPREME COURT 
 
 a peculiar and ludicrous form of caste snobbery; he was a 
 member of the " Settlers and Defenders of America," the 
 " Founders and Patriots of America," the " Society of May- 
 flower Descendants," -and the " Sons of the Revolution." As 
 for Hornblower he was, as early as 1880, counsel for the New 
 York Life Insurance Company ; he became one of the trustees 
 of that company, and head of the committee which approved 
 the so-called " yellow-dog " fund of the New York Life In- 
 surance Company, which fund, ostensibly disbursed as " legal 
 expenses," was used, in reality, to purchase favorable legisla- 
 tion and to defeat hostile bills. Hornblower was also counsel 
 for the New York Central Railroad Company, the Rome, Wa- 
 tertown and Ogdensburg Railroad Company, the New York 
 Security and Trust Company, and many other corporations. 
 
 This was the same Hornblower who passed as a notable 
 " reformer" in politics, and who (as we have already related) 
 had been nominated by President Cleveland an Associate Justice 
 of the Supreme Court of the United States, which nomination 
 had been rejected by the Senate, in 1894, for personal-political 
 reasons. 
 
 Such was the atmosphere of the office in which Hughes was 
 a law clerk, and it may be added that Cravath was a fellow 
 clerk at the same time. 
 
 Hughes' career now expanded. He was a precise, method- 
 ically-minded man, extremely careful of the proprieties, never 
 disposed to break conventions, studying the law and the law 
 system as he found them, sticking to the letter and dismissing 
 the spirit, for he saw that it was the letter that was applied. He 
 perceived, too, that the most successful lawyers were those 
 pleading for corporations ; they waxed fat and great, and were 
 high personages in the community. On the other hand, he 
 could not help seeing that those who made a practice of de- 
 fending the poor and helpless, the victims of the industrial 
 system, not only invited poverty, but suffered a distinct stigma 
 in the eyes of the influential and powerful.
 
 UNDER CHIEF JUSTICE WHITE 74! 
 
 Hughes as an Attorney. 
 
 Hughes had married Carter's daughter, and in 1888 the law 
 firm of Carter, Hughes and Cravath was formed. Need it be 
 explained who Paul D. Cravath was, the skillful and renowned 
 Cravath? Later he became, and for nearly a quarter of a 
 century remained, Thomas F. Ryan's most confidential legal 
 aide, not as adroit as Elihu Root, but more constant, standing 
 to Ryan as his shadow. Of Ryan's career we have already 
 given sufficient glimpses ; how from being a penniless young 
 man, he became one of the most conspicuous multimillionaires 
 of the country, owning or controlling street car systems, gas 
 plants, railroads, trusts and other properties, and we shall see 
 how he acquired one of the great life insurance companies. 
 We cannot enter here into the immense mass of testimony be- 
 fore various legislative committees revealing the long trail of 
 corruption and criminal transactions of corporations controlled 
 by him. 1 Whenever a franchise for Ryan's benefit was to be 
 slid through Legislature or Board of Aldermen, there Cravath 
 was to be found with his particular arguments to persuade 
 legislators that the grant should be made. 
 
 When Hughes was a candidate for Governor of New York, 
 in 1906, he was quoted as denying that he had ever been a cor- 
 poration lawyer except in the service of the State. Did the 
 facts coincide with this statement? Le us see. 
 
 1 Some of these facts have been described in previous chapters; others 
 will be referred to later in this chapter. One of Ryan's transactions 
 that may be mentioned here was a loan of $2,000,000 made by the State 
 Trust Company to Ryan's office boy, D. F. Shea ; such a loan was for- 
 bidden by the laws of the State of New York, and in consequence was 
 a criminal transaction. 
 
 On another occasion when proof had been presented to the banker 
 Jacob H. SchifT that he had been grossly deceived, he compelled Ryan to 
 relieve his (Schiff's) firm, Kuhn, Loeb and Company of its holdings of 
 Metropolitan Securities Company stock, amounting to about $6,000,000. 
 "If Mr. Ryan," says Col. Amory, "had not been a very rich man, in- 
 deed, his embarrassment in satisfying Mr. Schiff's peremptory demands 
 would have been extreme."' " Truth About Metropolitan," p. 45.
 
 742 HISTORY OF THE SUPREME COURT 
 
 Effort to Put Deadly Wires Under Ground. 
 
 By the year 1875 New York City and other cities were filled 
 with a network of deadly telegraph, electric-light and other 
 wires, strung over the pavements on wooden poles. The in- 
 troduction of heavy electric-light cables on poles brought a new 
 element of danger to human life. A constant menace, these 
 wires, as the courts later on stated, were improperly insulated. 
 Their falling to the ground killed people constantly. In fight- 
 ing fires, New York City's firemen were also often killed, and 
 were prevented by the wires from overcoming fires as success- 
 fully as if the wires had been underground. 
 
 In the year 1875 tne New York Legislature had already 
 passed an act ordering that the wires should be placed under- 
 ground. The electric-light and other companies affected made 
 resistance to this act, and had it declared unconstitutional. 
 Year after year they lobbied in the State Legislature to prevent 
 the passage of other acts. 
 
 But deadly accidents kept increasing, and the public demand 
 became stronger that the barbarous system of stringing wires 
 overhead be abolished. The companies refused to make the 
 change on the ground that it would entail much expense. 
 
 At this point high city officials suddenly began to support the 
 public demand that the " poles must go." What was the mo- 
 tive of these Tammany officials? Was it one of public spirit? 
 Scarcely. The sequel, years after, revealed that a band of 
 shrewd politico-capitalists had seen how they could take ad- 
 vantage of this reform movement, and under cover of it get a 
 comprehensive monopoly for themselves of the right of laying 
 and operating underground conduits for the wires. 
 
 The New York Legislature, in 1884, enacted a law compell- 
 ing companies in all cities of more than 500,000 population to 
 put their wires underground before November i, 1885. If 
 they failed to do this the city government was empowered to 
 tear the wires down and put them underground.
 
 UNDER CHIEF JUSTICE WHITE 743 
 
 The companies raised the objection that the time allowed 
 them was too brief. Moreover, they did not want to put the 
 wires underground in any more cities than could be avoided. 
 Lobbying at Albany produced an amendatory act making the 
 law apply to cities exceeding a million population only. This, 
 of course, meant that the operation of the act was restricted 
 to New York City; no other city had a population of more 
 than a million. The act of 1885 also created a Board of Elec- 
 trical Control. A supplementary act was passed in 1886. 
 Still another law was enacted in 1887 giving New York City 
 authority to remove the poles and wires ninety days after no- 
 tice should be served. 
 
 These laws were contested by the companies. Finally, on 
 May 12, 1889, Mayor Grant ordered the electric-light wires 
 to be torn down. His ground was that they were imperfectly 
 insulated and dangerous to human life. 
 
 Hughes Pleads for Electric Light Companies. 
 
 On November n, 1889, James C. Carter, Joseph H. Choate 
 and Charles E. Hughes, representing the United States Il- 
 luminating Company and the Mount Morris Electric Light 
 Company, went to court. Pleading that the act of 1887 was 
 " an invasion of the rights of property," they secured an in- 
 junction against the city. 
 
 The city appealed for the dissolving of the injunction. This 
 appeal was argued in the General Term of the Supreme Court, 
 in New York City, in December, 1889, before Judges Van 
 Brunt, Barrett and Brady. The companies were again repre- 
 sented by Carter, Choate and Hughes. 2 
 
 The three- judges concurred in deciding in favor of New 
 York City. Their decision was of rather a caustic order, 
 scoring the contentions of counsel for the companies. 
 ". . . When," said this decision, " it is apparent, as in the 
 
 See Supreme Court Reports, N. Y., Vol. 62 : 224.
 
 744 HISTORY OF THE SUPREME COURT 
 
 case at bar, the condition of the wires is such that they are 
 dangerous to human life, and that any passer-by, without negli- 
 gence on his part, is liable to be struck dead in the street, can 
 it be said for a moment that the public authorities have no 
 power to abate this nuisance and protect the lives of its citi- 
 zens? Indeed it is one of their highest duties, and if they 
 allowed such a condition of affairs to continue, might make 
 the city liable for the damages sustained by reason of their 
 negligence in not removing the common nuisance. . . ." 
 
 Counsel for the companies, the court said, had contended 
 that the Board of Electrical Control had refused to allow re- 
 pairs to be made. The decision disposed of this plea. The 
 court said that it was established beyond question that the 
 wires had become excessively dangerous. " Attention was 
 called to this condition of affairs by the happening of acci- 
 dents by which human life was sacrificed. . . ." This, the 
 court stated, was a " shameful condition of affairs." 
 
 The companies, the court went on, had not made " the slight- 
 est effort to compel the Board of Electrical Control, if they 
 unjustly refused, to grant them permits to repair. . . . 
 
 "If these electrical companies had been actuated by the 
 slightest desire to put their apparatus in a condition such as 
 would not endanger human life, they could easily have found 
 a way to remove the obstruction which they claim was placed 
 in their path by the Board of Electrical Control. It would 
 seem that they were only too willing to shelter themselves be- 
 hind the assumed unreasonableness of some of the regulations 
 of the board, and to allow their apparatus to get into such a 
 condition that it was dangerous to human life and become a 
 public nuisance." The companies, the court said, were " guilty 
 of the wilful violation of a manifest duty in allowing the wires 
 to become dangerous. They are without excuse, and when 
 they claim that the destruction of these instruments of death 
 ... is an invasion of the rights of property, such claim 
 eems to proceed upon the assumption that nothing has a right
 
 UNDER CHIEF JUSTICE WHITE 745 
 
 to exist except themselves." 3 The court upheld the constitu- 
 tionality of the law. 
 
 Scramble for Underground Franchises. 
 
 While Hughes was thus acting for the electric-light com- 
 panies, his partner, Cravath, was busy in other directions. 
 
 Realizing the great value of a monopoly of underground con- 
 duits, the Western Union Telegraph Company (then con- 
 trolled by Jay Gould and Russell Sage) and the Metropolitan 
 Telephone Company 4 (now the New York Telephone Com- 
 pany) had organized the Consolidated Telegraph and Electri- 
 cal Subway Company, which secured a franchise to construct 
 and operate conduits throughout the entire city. All other 
 companies using wires were now confronted with the necessity 
 of using those conduits and of being forced to pay a certain 
 schedule of rentals. 
 
 The electric-light companies saw the situation in which they 
 now were. On the one hand the city was moving against them 
 to force their wires underground ; on the other, the only con- 
 duit franchise was owned by the Consolidated Telegraph and 
 Electrical Company. While Hughes was one of the attorneys 
 resisting the city's move, partner Cravath was persuading the 
 Board of Electrical Control to give the electric-light companies 
 franchises for underground conduits. 
 
 There was a lively scramble for franchises. On October 14, 
 1889, Wheeler H. Peckham appeared as counsel for the Stand- 
 ard Electrical Subway Company. This was, it is hardly neces- 
 sary to say, the same Peckham whom Cleveland, in 1894, nom- 
 inated as Associate Justice of the Supreme Court of the United 
 States, and whose nomination was rejected by the Senate be- 
 cause of Senator Hill's personal opposition. Peckham pleaded 
 with the Board of Electrical Control that it give a conduit 
 
 3 Supreme Court Reports, N. Y., Vol. 62, pp. 222-245. 
 * Controlled by the Bell Telephone Company,
 
 746 HISTORY OF THE SUPREME COURT 
 
 franchise to the Standard Electrical Subway Company. 5 Elihu 
 Root came forward, on February 17, 1890, to plead for the 
 gift of a conduit franchise to the Manhattan Electric Light 
 Company and the Harlem Lighting Company. Root opposed 
 Peckham's company, and argued against giving it a franchise. 
 
 On the same day on which Root appeared, Joseph H. Choate, 
 Paul D. Cravath 7 and Caleb H. Jackson, representing the 
 United States Illuminating Company and the Safety Electric 
 Light and Power Company, argued before the Board of Elec- 
 trical Control in favor of conduit franchises for those com- 
 panies, and opposed the Consolidated Telegraph and Electrical 
 Subway Company. 8 
 
 The upshot of this scramble was that all these companies 
 -succeeded in getting franchises in this way : A new company, 
 called the Empire City Subway Company, was organized, and 
 presented in 1891 with a comprehensive franchise to lay and 
 operate underground conduits. The conduits of the one com- 
 pany were, it was stipulated, to be used for high-tension, and 
 those of the other for low-tension, wires. 
 
 5 See " Minutes of the Board of Electrical Control," Vol. I, July, 1887, 
 to Dec., 1890, p. 824. 
 e Ibid., 889. 
 
 7 Considering that Choate and Cravath represented the same clients 
 in the above case, it is worth noting here that it was Choate who, twenty 
 years later, in open oourt, severely denounced Cravath. This incident 
 occurred on January 25, 1910, in the United States Circuit Court at 
 New York, before Judge Ray. The occasion was a suit over the finan- 
 ciering of the traction lines in New York City. Choate excoriated the 
 magnates responsible for the long-continued looting of the traction 
 lines and the ensuing corruption. As the attorney for these looters 
 Cravath was not spared in the scathing denunciation. 
 
 8 " Minutes of the Board of Electrical Control," Vol. I, etc., 824, 826, 
 917, and 1007. This company fixed a certain rental for the use of its 
 ducts. Refusing to pay it, the Brush Electric Illuminating Company 
 was threatened with eviction. Representing the Brush Company, Crav- 
 ath, in June, 1891, applied for a preliminary injunction against the Con- 
 solidated and Electrical Subway Company. The application was denied, 
 and so was the appeal following. James C. Carter, Frederick R. Cou- 
 dert and Edward Lauterbach appeared as the attorneys for the Consoli- 
 dated and Electrical Subway Company. Supreme Court Reports, N. Y., 
 Vol. 67: 446.
 
 UNDER CHIEF JUSTICE WHITE 747 
 
 It may be said parenthetically at this point that Hughes and 
 Cravath sundered partnership in about the year 1890. 
 
 i 
 Monopoly Established. 
 
 Having fought the city and then one another, the companies 
 now combined in a huge monopoly. From that day to this not 
 a single telegraph, telephone, electric-light or other company 
 disapproved of by the combination, has been able to get wires in 
 the conduits. It was originally provided that all companies 
 should have access, but this condition has been evaded by vari- 
 ous pretexts. 
 
 With this monopoly of underground conduits secured, the 
 various companies raised their rates to an extortionate scale.. 
 The Metropolitan Telephone Company increased its rates for 
 unlimited service from $125 and $150 a year to $240 annually, 
 and in some years its profits rose to 145 per cent, on the actual 
 cash capital, excluding from computation the capital added by 
 dividends not distributed. 9 The conduit monopoly has made 
 enormous profits. Under the terms of the franchise all profits 
 exceeding ten per cent, were to go to the city, but by a con- 
 tinuous process of juggling with the books, and the frequent 
 issue of watered stock, the nominal profits (as reported to the 
 city) have never equaled ten per cent. 
 
 All the electric-light companies were later merged into one 
 monopoly, which in turn was controlled by the Consolidated 
 Gas Company, which was controlled by the Standard Oil Com- 
 pany. 10 In view of the decision of the Supreme Court' of the 
 
 9 " Argument of Simon Sterne before the N. Y. Senate Committee on 
 Cities, Feb. 5 and 19, 1895," p. 6. 
 
 10 Moody's "The Truth About The Trusts": 415. Also see testi- 
 mony in the recent hearing before the Public Service Commission, First 
 District, New York, " Public Service Commission : Electric Lighting 
 Investigation," Vol. IV: 1510, etc., etc. This testimony showed that the 
 United States Illuminating Company, the Brush Electric Illuminating 
 Company, the Edison and other companies were merged, in 1890, in the 
 United Light and Power Company which in turn was controlled by the 
 Consolidated Gas Company.
 
 HISTORY OF THE SUPREME COURT 
 
 United States in the eighty-cent case (related in a previous 
 chapter) which Justice Peckham, a brother of Wheeler H. 
 Peckham, wrote, and considering the facts here narrated, it is 
 well to repeat the names of some of the great capitalist mag- 
 nates controlling the Consolidated Gas Company. Among the 
 directors were William Rockefeller, George F. Baker, James 
 Stillman, William C. Whitney, Thomas F. Ryan, Anthony N. 
 Brady and sundry others. 
 
 Thus we see Hughes starting out as a young lawyer in the 
 lucrative field of representing corporations. His clients, 
 whether corporate or private, were all rich ; poor men's cases 
 do not seem to have been any part of Hughes' practice. That 
 Hughes himself was in money matters personally and scrupu- 
 lously honest was a fact. No doubt he gave conscientious, zeal- 
 ous service for the fees that he received. 
 
 But the question of personal honesty embraces so many as- 
 pects, and demands so deep an analysis that it cannot con- 
 clusively be said that a man was honest because he resorted 
 to no illegal methods. There is an intellectual and class dis- 
 honesty which in its results far exceeds pecuniary dishonesty. 
 The question might here be profitably entered into since it is 
 the fact that an individual's views and conduct are largely de- 
 termined by his interests, training, environment and long-con- 
 tinued associations. The problem is to a great extent a social, 
 not an individual, one ; and when we consider why this or that 
 man was selected for the Supreme Court bench it is necessary 
 to know what his antecedent associations, influences, and inter- 
 ests were. 
 
 New York, Westchester and Boston Project. 
 
 The second illustration of Hughes' activities as a lawyer was 
 his efficient work in getting a franchise for the New York, 
 Westchester and Boston Railway. 
 
 For its entrance into New York City, the New York, New 
 Haven and Hartford Railroad had long had to use the New
 
 UNDER CHIEF JUSTICE WHITE 749 
 
 York Central's tracks from Woodlawn to the Grand Central 
 depot. 11 This privilege cost it a certain tariff of seven cents on 
 every passenger, which tariff was recently increased to twelve 
 cents. The New York, New Haven and Hartford Railroad was 
 and is controlled by J. Pierpont Morgan ; it now sought its own 
 entrance into New York City. How was this to be obtained ? 
 
 It happened that in the year 1872 a company called the New 
 York, Westchester and Boston Railroad Company had organ- 
 ized by filing articles of incorporation at Albany. In reality it 
 was an abortive corporation ; it had never completed the neces- 
 sary legal formality of filing an affidavit as prescribed by Sec- 
 tion 2, Railroad Law of i85o. 12 
 
 The company, or what called itself the company, became 
 insolvent in 1876, and a receiver was appointed on March 25 
 of that year. On March 22, 1881, the Supreme Court of New 
 York directed the receiver to sell all its rights, title, interest, 
 real estate, etc. These were sold to William F. Pelt for $5,500. 
 
 According to good legal authority this sale operated to de- 
 prive the company of any located route, except such as the Leg- 
 islature might subsequently grant. But the Legislature did not 
 act. 
 
 For years the paper franchise was hawked about for sale; 
 nobody seemed to want it. 
 
 Hughes Comes Forward for the Project. 
 
 r . 
 
 In, however, either the year 1900 or 1901 some powerful in- 
 terest suddenly took up the phantom, and on the strength of 
 it tried to get a definite franchise from the Board of Alder- 
 men. This body was at that time vested with the power of 
 franchise granting. It was significant that the firm of Carter, 
 Hughes, Rounds and Schurman (so the firm was now styled) 
 
 11 The New York Central controls the old New York and Harlem 
 River Railroad which owns the franchise to operate on Park Avenue. 
 
 12 See, "Minutes of the [N. Y.] Board of Estimate and Apportion- 
 ment, 1004," Vol. I: 471.
 
 75O HISTORY OF THE SUPREME COURT 
 
 appeared as the attorneys advocating the granting of the fran- 
 chise. They seldom came forward except to represent some 
 big interest. 13 Hughes was the member of the firm who was 
 the active attorney in arguing for the passage of the fran- 
 chise. 14 
 
 Hughes solemnly denied that any large interest was behind 
 the project; he asserted that the company was one absolutely 
 independent of connection with any other corporation. The 
 Board of Aldermen were skeptical. 
 
 At the same time another company called the New York and 
 Port Chester Railroad Company projected itself upon the scene, 
 applied for a franchise, and began opposing the New York, 
 Westchester and Boston Company. 
 
 Report had it that both companies were owned by the New 
 York, New Haven and Hartford Railroad, and interesting 
 rumors declared that the show of opposition was only a trick 
 to blind the people ; that the object was to get a franchise for 
 either company or both companies. 
 
 Later developments proved, as we shall see, that both com- 
 panies were, in fact, owned by the New York, New Haven and 
 Hartford Railroad, controlled by J. Pierpont Morgan and the 
 Standard Oil group. 
 
 The Aldermanic Hold-Up. 
 
 For three years the Board of Aldermen refused to grant the 
 franchises. Nobody imputed any lofty motive to the Honor- 
 able Board. Meanwhile, what Lemuel Ely Quigg on another 
 occasion called " accelerators of public opinion " carried on 
 
 13 From the New York Times, issue of January 19, 1008: "A noted 
 corporation lawyer, speaking of Mr. Hughes, said that he was not a 
 money maker and was one of the few lawyers who consulted their 
 clients as to the size of his fees." The article further stated of Hughes 
 that when he became a candidate for Governor of New York (in 1906) 
 " it is doubtful whether he was worth more than $100,000." 
 
 14 " Minutes of the [N. Y.] Board of Estimate and Apportionment, 
 1904," Vol. 1 : 1089, 1094, etc.
 
 UNDER CHIEF JUSTICE WHITE 751 
 
 their deft work. " Taxpayers' organizations " were formed to 
 support or oppose one side or the other, and the Aldermen 
 were bombarded with a series of approving or denunciatory 
 resolutions. 15 
 
 A significant episode now turned up, revealing that legis- 
 lative bodies were merely registering committees for the great 
 capitalists. 
 
 The Board of Aldermen had withheld granting both the 
 Westchester franchise and the franchise for the Pennsylvania 
 Railroad to enter New York City via the Hudson River tun- 
 nel. Somehow and from somewhere the announcement now 
 came that unless the Board of Aldermen acted, a law would be 
 passed by the Legislature stripping it of all power of granting 
 franchises. The threat was soon carried into execution. The 
 Legislature passed an act vesting franchise-granting power in 
 the Board of Estimate and Apportionment. This body was 
 favorably inclined. 
 
 Board of Estimate Gives Long-Sought Franchise. 
 
 The first point that this Board decided to pass upon was the 
 question whether or not the New York, Westchester and Bos- 
 ton Railroad Company was or was not a defunct corporation. 
 
 On March 30, 1904, Corporation Counsel Delaney (elected 
 by Tammany Hall) reported to the Board of Estimate and Ap- 
 portionment that the Board had no jurisdiction to examine the 
 legal capacity or incapacity of the company. 
 
 In the minutes of the Board of Estimate and Apportionment 
 Charles E. Hughes was described as the attorney of the pro- 
 jected railroad. These minutes give a long letter written and 
 signed by Hughes from the office of Carter, Hughes, Rounds 
 and Schurman, 96 Broadway and 6 Wall Street, to Corporation 
 Counsel Delaney, proposing certain changes in the wording of 
 
 15 These were duly published in the " Minutes of the Board of Esti- 
 mate and Apportionment, 1904 " : 471, etc.
 
 752 HISTORY OF THE SUPREME COURT 
 
 the franchise contract. 10 Delaney wrote in part this reply to 
 the Board regarding Hughes' proposals : " Some of these I 
 will not here discuss because I do not deem it expedient for the 
 City's interests that they should be adopted, but there are sev- 
 eral which should receive consideration." 17 
 
 The New York, Westchester and Boston Railway Company 
 finally received its long-sought franchise on June 24, 1904. Al- 
 though represented by Hughes as an absolutely independent 
 company, which it may have been in name, it really was nothing 
 more or less than an adjunct of the New York, New Haven 
 and Hartford Railroad Company. Its franchise allowed it to 
 operate more than sixteen miles of four-track line within New 
 York City's limits, the main line crossing one hundred and 
 twenty streets ; and its branch line seventy-four streets. It se- 
 cured practically all the available routes for entrance and exit 
 to and from New York City by way of the Bronx. It is the 
 only purely privately-owned rapid transit line in New York 
 City. Its terminal, it is true, is on the north side of the Har- 
 lem River, but it will probably be able to convey its passengers 
 downtown by a new subway. Moreover, by means of the 
 Pennsylvania Railroad Company's New York Connecting Rail- 
 road, which will traverse Randall's and Ward's Island to and 
 from Long Island, its trains will be able to run into the Penn- 
 sylvania Railroad's station on Seventh Avenue and thence un- 
 der the Hudson River south and west, and the Pennsylvania 
 Railroad can run its trains over the New York, New Haven and 
 Hartford Railroad's tracks into New England. 
 
 The immense value of the franchise can, therefore, be seen 
 at a glance. Its present value both as a railroad entrance and 
 outlet and as a rapid-transit line is recognized as great enough, 
 and its potential value considering growth of population 
 is unquestionably even greater. 
 
 16 "Minutes of the [N. Y.] Board of Estimate and Apportionment, 
 1904," Vol. I,: 1089. 
 
 17 Ibid., 1094.
 
 UNDER CHIEF JUSTICE WHITE 753 
 
 J. P. Morgan and Associates in Control. 
 
 That the New York, Westchester and Boston Railroad and 
 the New York and Port Chester Railroad were both owned 
 by Morgan's New York, New Haven and Hartford Railroad 
 was shown by the formal incorporation of the Millbrook Com- 
 pany on November 5, 1906. The Millbrook Company was a 
 holding company for the New York, New Haven and Hartford 
 Railroad. It held the entire stock of the Port Chester Rail- 
 road, which in turn held the stock of the New York, Westches- 
 ter and Boston Railroad. 
 
 The final proceedings occurred when Hughes was Governor. 
 An act was passed by the New York Legislature and signed 
 by Governor Hughes on May 29, 1909, 18 authorizing the New 
 York, Westchester and Boston Railroad and the New York 
 and Port Chester Railroad to consolidate. The consolidation 
 agreement provided for $45,000,000 capital in all, with possi- 
 bilities of increase. There were $5,000,000 of stock, and $40,- 
 000,000 of mortgages, on which $15,100,000 of bonds had been 
 issued by December 23, 1909. The remainder of the bonds to 
 be issued under the mortgages were subject to the consent of 
 the Public Service Commission, Second District. But this capi- 
 talization gives no adequate idea of the intrinsic value of the 
 franchises, the value of which is estimated at much more than 
 a hundred million dollars. 
 
 The consolidation agreement also showed that the directors of 
 the new company were J. Pierpont Morgan, Lewis Cass Led- 
 yard, William Rockefeller, Robert W. Taft, Charles S. Mellen 
 (president of the New York, New Haven and Hartford Rail- 
 road) and other capitalists. Further, the agreement stated that 
 the New York, New Haven and Hartford Railroad Company 
 owned 91,581 of the total issue of 91,590 shares of the New 
 York and Port Chester Railroad, 10 and 105,384 shares of the 
 
 18 Chap. 579, Laws of 1909. 
 
 10 " Consolidation Agreement," p. 15.
 
 754 HISTORY OF THE SUPREME COURT 
 
 entire issue of 105,397 shares of the New York, Westchester 
 and Boston Railroad. 20 
 
 Hughes Becomes Prominent. 
 
 Up to this time Hughes was comparatively unknown to the 
 general public. He first attained popular notice in his capacity 
 as counsel for the (Stevens) Legislative Committee of New 
 York which was appointed to investigate the price of gas. 
 The result of this committee's findings was the passage of a 
 law providing that the charge for gas in New York City should 
 be not more than eighty cents per thousand cubic feet. How 
 this law was long contested, and how the Supreme Court of the 
 United States, while upholding its constitutionality, adroitly 
 used the case to intrench property interests to a remarkable 
 degree these facts have been related in clear detail in a 
 previous chapter. 
 
 When, in 1905, a contest between competitive magnates in 
 the Equitable Life Assurance Society led to the disclosure 
 of a great scandal, a legislative committee was appointed to 
 investigate the methods of the large life insurance companies. 
 Hughes was chosen as the committee's counsel. There was a 
 belief that this investigation was inspired or instigated by cer- 
 tain powerful magnates or groups of magnates with the ulterior 
 purpose of ousting certain other magnates from control of the 
 vast assets of the insurance companies. If this were true 
 and 7 indications strongly pointed that way there is no evi- 
 dence 'for the suspicion that Hughes was in any way a conscious 
 party to the proceeding, even, though newspapers opposed to 
 him politically later pointed out insinuatingly that at one stage 
 of the contest for the control of the Equitable Life Assurance 
 Society he had been counsel to James W. Alexander, president 
 of that corporation, and that he had been counsel for the Mer- 
 cantile Trust Company allied with the Equitable Life As- 
 
 20 " Consolidation Agreement," p. 9.
 
 UNDER CHIEF JUSTICE WHITE 755 
 
 surance Society in part of the litigation involved by the 
 Shipbuilding Trust scandal. 
 
 He Exposes Insurance Iniquities. 
 
 As counsel to the committee, Hughes displayed uncommon 
 skill and perseverance in unearthing certain parts of the vast 
 system of insurance corruption through which the directors, 
 brokers, promoters, syndicates of magnates and retainers, mem- 
 bers of Legislatures, lobbyists and politicians enriched them- 
 selves at the expense of the policy holders. Point by point 
 he patiently brought out the involved and concealed circum- 
 stances of the long-continued enormities of loot and corruption. 
 Reputations, long acclaimed for their respectability, were 
 blasted, others ruined, by these revelations. Of the great array 
 of facts presented in the committee's report, we have already 
 described some in a previous chapter. 
 
 Hughes' work called forth a newspaper demand that he be 
 nominated for Governor of New York by the Republican party 
 that he might be able to put into law the insurance reforms 
 that he had advocated. Meanwhile an event took place which 
 the sophisticated might well have expected but which surprised 
 the innocent. 
 
 The Odd, Yet Inevitable, Result. 
 
 It was soon observed that the only real result of the great 
 investigation was to enable some magnates to oust others, and 
 to concentrate the power of the dominating financial grpups> 
 Morgan tightened his hold on the New York Life Insurance 
 Company. The Harriman-Standard Oil Company interests ob- 
 tained a completer control of the Mutual Life Insurance Com- 
 pany, and Hyde, Harriman's puppet in the Equitable Life As- 
 surance Society, was put out, and none other than Thomas F. 
 Ryan stepped into full control of the $470,000,000 assets of that
 
 756 HISTORY OF THE SUPREME COURT 
 
 company and retained if until December, 1909, when he sold 
 his controlling stock to J. Pierpont Morgan. 
 
 It was currently reported that Cravath persuaded Ryan that 
 Hughes would be a " safe man " as Governor, but whether this 
 report was true or not we cannot say. One fact much com- 
 mented upon was that in its investigation the legislative com- 
 mittee avoided any genuine inquisition into the methods of in- 
 dustrial insurance companies. These companies fattened on 
 the poorest and most 'industrious part of the population, ex- 
 tracting hundreds of millions of dollars in profits from the 
 working class. However, Hughes' record as exposer of insur- 
 ance corruption was widely praised; he was acclaimed as a 
 typical example of the " good man in politics." 
 
 Evidently the big financial magnates and capitalists had a 
 deep appreciation of Hughes' devout qualities, for they came 
 forward in large numbers to contribute to the campaign fund 
 of the Republican gubernatorial campaign, when he was a 
 candidate for Governor, in 1906. J. P. Morgan and Company 
 and Levi P. Morton each contributed $20,000. Andrew Car- 
 negie, John D. Rockefeller, Jr., H. B. Hollins and E. M. 
 Wells each contributed $5,000. Harvey Fisk and Son, Chaun- 
 cey M. Depew, John W. Gates, J. and W. Seligman and Com- 
 pany, Kuhn, Loeb and Company, and sundry others each gave 
 contributions of $2,500. Charles M. Schwab, Edwin Gould, 
 Jacob Schiff, William H. Moore, Adolph Lewisohn and many 
 other millionaires or multimillionaires each contributed $1,000 
 or $2,000. The total sum contributed was $313,923. Inas- 
 much as all of the aforesaid contributors were reputed to be 
 extremely sagacious, practical men, it is quite clear that they 
 were under no illusions as to the measure of Mr. Hughes. 
 
 Hughes Elected Governor. 
 
 After Hughes' election as Governor of New York in 1906, 
 certain pretentious laws of a " reform " nature were passed.
 
 UNDER CHIEF JUSTICE WHITE 757 
 
 Some were good in their way, but it was a negligible good. 
 Laws were enacted to prevent the corrupt use of insurance 
 funds, yet of what real avail are such laws as these in a fabric 
 erected on corruption and sustained by it? The statute books 
 were already encumbered by laws prohibiting corruption. They 
 were always evaded and never enforced. Moreover, even if 
 corruption by the insurance companies were stopped, the saving 
 of the millions formerly spent in corruption all the more en- 
 riched the magnates in control and gave them larger funds to 
 manipulate. The policy holders were no better situated ; their 
 premiums were as high as ever, and the conditions more or less 
 as hard as before, although some slight relief was given in 
 the abolition of the " deferred dividend " plan. 
 
 In fact, the great magnates continued to use the insurance 
 money i:i their fraudulent trust and railroad operations. Har- 
 riman, by the end of 1907, had obtained from the Mutual Life 
 Insurance Company not less than $10,000,000 loans on stocks 
 largely watered, and the same company had invested $46,223,- 
 500 in securities of corporations controlled by Harriman. The 
 surplus of the Equitable Life Assurance Society was put at 
 Ryan's disposal, in violation of one of the very laws Hughes 
 had advocated and caused to be enacted. By the close of the 
 year 1907 fully $27,048,517 of bonds and stocks of corporations 
 controlled by Ryan had been sold to the Equitable. As for 
 the New York Life Insurance Company it held, by the close 
 of 1907, the enormous sum of $112,391,000 in securities issued 
 by corporations controlled by Morgan. Inasmuch as it was 
 contrary to the new insurance law for insurance companies to 
 invest in stocks, the insurance companies explained that these 
 enormous holdings of stocks were " left overs " of a time be- 
 fore the passage of the law. So far as the industrial insurance 
 companies were concerned, Governor Hughes did not make a 
 single move to remedy the evils bearing so heavily upon the 
 working class. 
 
 Although the insurance investigation had disclosed that a
 
 758 HISTORY OF THE SUPREME COURT 
 
 large number of officials or capitalists controlling the com- 
 panies had been guilty of perjury, fraud, mismanagement, cor- 
 ruption and theft, it was a subject of general comment that 
 District Attorney Jerome, of New York City, who had been so 
 signally active in sending petty offenders to prison, failed to 
 bring about conviction and imprisonment of any- high insur- 
 ance official. Another scandal, too, was the immunity from 
 serious prosecution of Ryan and his associates of the Metro- 
 politan Street Railway Company who were specifically charged 
 with having looted that company of at least $90,000,000 by du- 
 plication of construction charges, manipulation of accounts, and 
 other involved series of thefts and frauds. This was the esti- 
 mate made by Col. Amory in his " Truth About Metropolitan," 
 published in 1906. 
 
 When a candidate for District Attorney, in 1901, Jerome 
 had publicly and repeatedly announced that he would " follow 
 the trail of corruption to the end, even if it lead to the offices 
 of the Metropolitan Street Railway Company." But after his 
 election and reelection no results came. 
 
 Charges Against District Attorney Jerome. 
 
 '' On September 8, 1907, a voluminous petition was sent by 
 New York business men and others to Governor Hughes mak- 
 ing a 'scathing criticism of District Attorney Jerome for having 
 failed to prosecute the traction looters, and demanding that 
 the Attorney-General of New York State be directed to prose- 
 cute. This petition recited in detail the enormous frauds and 
 thefts committed. 
 
 Evidence was submitted, on December u, 1907, to the Grand 
 Jury in General Sessions showing that Ryan and associates had 
 bought in 1902 from Anthony N. Brady for $250,000 the fran- 
 chise" of a company called the Wall and Cortland Street Fer- 
 ries Railroad Company, a corporation having a dormant fran- 
 chise for a road never built. Then they had sold this franchise
 
 UNDER CHIEF JUSTICE WHITE 759 
 
 to a dummy corporation, called the Metropolitan Securities 
 Company, for $965,607.19. Part of this went to the syndicate's 
 brokers; the exact amount of loot divided among Ryan, 
 Widener, Dolan and the estates of William C. Whitney and 
 William L. Elkins was $692, 292. 82. - l The surviving members 
 of this syndicate practically confessed their guilt by making 
 restitution of this sum after the facts had been made public 
 and after charges had been made against Jerome. On the 
 very day that Ryan and associates had bought the non-existent 
 Wall and Cortland Street Ferries Railroad they had also bought, 
 for $1,600,000, the People's Traction Company and the New 
 York, Westchester and Connecticut Traction Company, the 
 franchises of both of which had lapsed. In this transaction 
 there was, it was charged, another grand division of loot. 
 
 Assortment of Thefts and Corruptions. 
 
 These transactions, however, were insignificant compared to 
 the theft of $16,000,000 from the treasury of the Third Avenue 
 Railway, 22 and vaster plunderings in other directions, totaling, 
 as we have said, approximately $90,000,000. 
 
 The fact was brought out in the investigation by the Public 
 Service Commission that all the books of the Metropolitan 
 Street Railway Company in which its transactions from 1891 
 to 1902 were recorded were sold to a purchaser who promised 
 to destroy them. Street car lines bought for a few hundred 
 thousand dollars were fraudulently capitalized at ten or twenty 
 times that sum, and then vast amounts were fraudulently 
 charged in duplication of construction accounts. 
 
 Lemuel Ely Quigg (who had been for six years a member of 
 
 21 These facts were testified by Brady, on October 8, 1907, in an, in- 
 quiry conducted by Chairman Wilcox of the Public Service Commission. 
 
 22 So Receiver Whitridge of that company stated. And see Col. 
 Amory's remarks, June 29, 1910, "Third Avenue Company Plan of 
 Reorganization," Public Service Commission, Stenographic Minutes, p. 
 2417.
 
 760 HISTORY OF THE SUPREME COURT 
 
 Congress) admitted that in the four years preceding 1907 he 
 had received $217,000 from the company. This was charged 
 -to a construction fund, part of which was another sum of 
 $798,000 corruptly paid to persons whose names were con- 
 cealed. Also by means of hired agents Quigg caused the or- 
 ganization of numerous citizens' associations whose influence 
 was used at Albany for or against pending measures in which 
 his employers were interested. 
 
 Previous to the merger of the Ryan and Belmont interests, 
 which merger was accompanied by an addition of $108,000,000 
 of watered stock, Quigg created " citizens' associations " to 
 oppose Belmont's designs; subsequently he served the com- 
 bination. His expenses, he said, ranged from $50,000 for 
 manufacturing a great petition from the tenement-house dis- 
 trict to $500 paid to individuals for " agitation." Among those 
 whom he employed directly or indirectly to make arguments 
 at Albany were two men who had recently become Justices of 
 the Supreme Court of New York State. Quigg also admitted 
 that he employed detectives to watch Col. W. N. Amory, who 
 was persistently exposing and denouncing the traction looters 
 and corruptionists and demanding that they be prosecuted 
 criminally. As a matter of fact Amory was not only watched 
 but hounded and persecuted. 23 
 
 The investigation by the Legislative " Graft " Committee, 
 in 1910, supplied certain missing links, and disclosed who had 
 received part of the corruption funds. The books of a Wall 
 Street brokerage house, used as an intermediary, showed that 
 State Senator Goodsell, Assemblyman Louis Bedell and other 
 active members of the New York Legislature had received 
 large sums, during the sessions of 1900-1904, from officers of 
 the Metropolitan Street Railway Company. 
 
 But no criminal proceedings were brought against Ryan. In 
 a statement published on May 26, 1909, Col. Amory charged 
 
 23 " Investigation of Interborough-Metropolitan Company," Etc., Pub- 
 lic Service Commission, 1907, pp. 1395-1559.
 
 UNDER CHIEF JUSTICE WHITE 761 
 
 that when a Grand Jury was called in 1907 to investigate the 
 criminal practices of Ryan and associates of the Metropolitan 
 Street Railway Company, the foreman of the Grand Jury was 
 a director in Ryan's Equitable Life Assurance Society. 
 
 Col. Amory also charged that in April, 1903, Daniel Mason, 
 Jerome's former law partner, and William H. Page, Jr., an- 
 other of the Metropolitan's lawyers, had attempted to bribe 
 him (Amory) while a State's witness, with $200,000, to with- 
 draw the charges that Amory had filed with Jerome against 
 the Metropolitan Street Railway Company. 
 
 The particular Grand Jury investigating the matter of the 
 $692,292.82 paid for the paper franchise of the Cortland and 
 Wall Street Ferries Railroad Company, stated in its present- 
 ment: 
 
 " That one of the questions that the Grand Jury was investi- 
 gating was whether the said Thomas F. Ryan and others in con- 
 nection with the sale of the said railway company had stolen 
 the sum o! $111,652.78." Of the particular item of $692,- 
 292.82 looted, the amount mentioned $111,652.78 was 
 supposed to be Ryan's share. 
 
 Paul D. Cravath, Governor Hughes' former law partner f 
 was in court zealously looking out for Ryan's interests. Crav- 
 ath had refused to answer certain vital interrogations, and the 
 question came up whether he should be punished for contempt 
 of court. He was not. During this time District Attorney 
 Jerome, as he admitted at a hearing on May 7, 1908, on the 
 charges against him, " dined with Allan Ryan [one of Thomas 
 F. Ryan's sons] and his wife at Sherry's and Martin's." 
 Jerome said he was not a friend of the Ryan family, " but I 
 think young Ryan is a fine chap, but can't claim anything more 
 than a pleasant acquaintance." 
 
 On January 27, 1908, Judge Rosalsky, in the Court of Gen- 
 eral Sessions, New York City, severely arraigned District 
 Attorney Jerome, declaring that Jerome had so conducted the 
 examination of Thomas F. Ryan before the Grand Jury as
 
 762 HISTORY OF THE SUPREME COURT 
 
 probably to invalidate any indictments which that body might 
 have found against Ryan. 
 
 Governor Hughes appointed a commissioner to hear the evi- 
 dence upon which the charges against Jerome were made. 
 Jerome admitted that when Ryan, Brady and Vreeland were 
 before the Grand Jury he had asked leading questions of them. 
 He further testified that he had not asked the Grand Jury 
 to indict Ryan in the matter of the Wall Street and Cortland 
 Street Ferries Railway transaction. " No," he said, " I will 
 never advise that an indictment be found in that case." But 
 an inspection of the minutes of the Grand Jury of November, 
 1907, disclosed that Jerome had told Brady that he (Brady) 
 " and Ryan and Whitney and this outfit were in cahoots and 
 in some way got $700,000 of the Metropolitan Securities' 
 money. You are, practically every one of you, under sus- 
 picion and accused of being thieves. . . ." At the hear- 
 ing Jerome was asked as to a certain contribution made to his 
 political campaign by Samuel Untermeyer, counsel for Hyde 
 of the Equitable Life Assurance Society, but he denied that any 
 ulterior purposes were behind it. Ryan had admitted on the 
 witness stand that he (Ryan) had contributed $500,000 to the 
 national Democratic Party in 1900. 
 
 Hughes Exonerates Jerome. 
 
 The Commissioner's report " whitewashed " Jerome, and 
 Governor Hughes dismissed the charges, saying : " Nothing 
 has been presented which furnishes any just ground for im- 
 peaching the good faith of the District Attorney in connection 
 with any of the transactions set forth nor has anything been 
 shown which would justify his removal from office." 2 * 
 
 2 * Col. Amory did not think that Jerome had been corrupted by means 
 of money. " When the day of retribution comes . . ." wrote Col. 
 Amory, on March 18, 1906, ". . . It will then be disclosed that t"here 
 are other than money bribes. I believe Mr. Jerome incapable of doing 
 a corrupt act for money." " Truth About Metropolitan," p. 2. In the
 
 UNDER CHIEF JUSTICE WHITE 763 
 
 In 1910 came the disclosures before a legislative committee 
 revealing the consecutive briberies and corruptions carried on 
 in the New York Legislature by the Metropolitan Street Rail- 
 way's officials, by fire insurance companies and by other cor- 
 porations. Ten of the principal legislators implicated were 
 the very same who for years had ruled Senate and Assembly 
 committees. 
 
 The Obliging Judge Lacombe. 
 
 In the meantime, learning that Attorney-General Jackson of 
 New York State contemplated throwing the looted railway 
 system into the hands of receivers, Ryan and associates hur- 
 ried to apply for the appointment of Adrian Joline and Douglas 
 Robinson as receivers. Joline was an old attorney of the Met- 
 ropolitan Street Railway Company, and Robinson was Presi- 
 dent Roosevelt's brother-in-law. Lacombe granted the applica- 
 tion, thus forestalling the attempt of Attorney-General Jackson 
 to put in receivers hostile to Ryan and associates. Judge 
 Lacombe was a protege of William C. Whitney, and had been 
 placed on the Circuit Court by Whitney's efforts. 
 
 In the course of his remarks before the Public Service Com- 
 mission, in November, 1910, Col. Amory unsparingly de- 
 nounced Judge Lacombe. " There is a Judge on the bench," 
 he said, " who has protected these criminals. He is the crea- 
 ture of William C. Whitney and the tool of Thomas F. Ryan. 
 
 ' There has been a plan successfully put on foot to keep the 
 traction thieves from prison and from disgorging the millions 
 they have made away with. 
 
 " Ryan still controls the street railways of this city. Back 
 of these receivers who defy the Public Service Commission, 
 and treat it with contempt and ignore the laws of the State is 
 
 same pamphlet Col. Amory stated that Jerome knew specifically of the 
 vast plunderings as early as 1903 and, that he had then encouraged 
 Amory to believe that the looters would be prosecuted.
 
 764 HISTORY OF THE SUPREME COURT 
 
 Judge Lacombe . . . and back of Lacombe stands 
 Ryan." 25 When Judge Lacombe was challenged to make a 
 categorical reply he refused. 
 
 Some time ago the statute of limitations intervened to pre- 
 vent any possible prosecution of the traction looters, which was 
 precisely the point that they were fighting for so desperately. 
 They are now immune. Ryan's fortune is estimated to be 
 more than $225,000,000. His great African concessions of do- 
 main, with incalculably rich resources, which he secured in 
 association with the late King Leopold of Belgium and others, 
 may signify that his private fortune is perhaps double that 
 sum. 
 
 " Rule of Reason " Speech. 
 
 When occupying the office of Governor of New York State 
 (in which he served two terms, having been reflected in 1908), 
 Hughes did nothing at basis to antagonize, and much to win 
 the favor, of great corporate interests. Quite true, his church- 
 bred opposition to vulgar gambling asserted itself in his caus- 
 ing to be enacted a statute forbidding the operation of race- 
 track gambling, for which deed he was much praised by pious 
 people.. These good folk, however, were not at all concerned 
 about stock-market gambling, and neither was Governor 
 Hughes. " Reforms " of the race-track sort did not touch 
 the fundamentals of society, and were, therefore, " safe and 
 sane." At the same time Governor Hughes opposed or vetoed 
 certain measures affecting large corporate interests. He found 
 objections to the constitutional amendment providing for an 
 income tax. He vetoed the two-cent railroad fare bill, the 
 five-cent Coney Island fare bill and other measures. And when 
 President Taft appointed him to the Supreme Court of the 
 United States, no opposition was manifested by any prominent 
 capitalist interest. Indeed, William J. Bryan, three times 
 
 25 " Reorganization Plan," Public Service Commission Hearing, Sten- 
 ographic Minutes, pp. 2407-2409.
 
 UNDER CHIEF JUSTICE WHITE 765 
 
 Democratic candidate for President of the United States, 
 openly charged Taft with packing the Supreme Court with 
 pro-trust men. In a statement published on October 12, 
 191 1, 26 Bryan asserted: 
 
 " In its 1908 platform the Republican party promised to 
 amend the Sherman Anti-Trust Law. During the campaign 
 of 1908 Governor Hughes, of New York/ interpreted that 
 promise to mean that ' the Rule of Human Reason ' must be 
 accepted. 
 
 " Later Taft appointed Governor Hughes, as well as other 
 men of his mold of thought, to the United States Supreme 
 Court. 
 
 " George W. Perkins, associated with J. P. Morgan in trust 
 control, delivered a speech recently in which he complained 
 that Republican Congressmen had not tried to redeem their 
 platform promise, but that it had been redeemed by the Su- 
 preme Court in the recent trust decision wherein Governor 
 Hughes' ' Rule of Reason ' was applied. 
 
 " Here we have it. Governor Hughes was put forward to 
 represent the Republican Party ; he assured the trusts that ' the 
 Rule of Reason ' for which they had been waiting for more 
 than ten years would be adopted. Congress refused to keep 
 the promise, so Governor Hughes was put on the Supreme 
 Bench and helped to amend the law in accordance with the 
 Republican promise, and now President Taft, in whose inter- 
 est the promise was made and who appointed Governor Hughes, 
 says that the Anti-Trust law as amended by the court must 
 not be disturbed. 
 
 " Here is a chain of circumstantial evidence sufficient to 
 convict in a criminal court." 
 
 In another statement, published on October 20, 1911, in the 
 form of an open letter to President Taft, Bryan accused Taft 
 of having appointed pro-trust men to the Supreme Court. 
 
 20 Published originally in Bryan's periodical " The Commoner," and 
 republished in the newspapers.
 
 766 HISTORY OF THE SUPREME COURT 
 
 " You appointed to the Chief-Justiceship of the Supreme 
 Court Justice White who thirteen years ago took the trusts' 
 side of the trust question. You appointed him over the head 
 of Justice Harlan who had served longer and with more dis- 
 tinction and who had taken the people's side on trust questions. 
 . . . You appointed Governor Hughes to the Supreme 
 Court Bench after he had interpreted your platform to suit 
 the trusts and proceeded tojoin Chief Justice White and carry 
 out your platform promise to amend the Anti-Trust law by 
 weakening it. . . ." Bryan asked Taft to make public the 
 recommendations, written and verbal, upon which he had made 
 these and other appointments " and let the people know the 
 influences that dictate your appointments." 
 
 President Taft replied weakly and evasively, saying that he 
 considered the questions " an insult " to the Supreme Court 
 of the United States. 
 
 Had President Taft been bold enough to have expressed 
 the facts as clearly as he knew and adapted them, he would 
 have said that Bryan's charge was a compliment, not an insult. 
 The trusts were the dominant economic factor of the day ; 
 being so, why should they not have their representatives on 
 the Supreme Court Bench as well as in other departments of 
 Government? The processes of the capitalist system, for 
 which Government is merely a registering machine, made this 
 inevitable. Moreover, as we have previously pointed out, the 
 trusts were a necessary outcome of the capitalist struggle, and 
 represented a higher form of industrial organization than the 
 abandoned competitive stage, which Bryan, the mouthpiece of 
 his fading class, has the blindness and folly to wish to see 
 restored. For the ends of progress it was, indeed, salutary 
 that Taft should have appointed pro-trust judges. Finally, it 
 was not Taft that essentially decided affairs, but the great 
 force of magnates owning the resources and industries not 
 only of the United States but of other parts of the world.
 
 UNDER CHIEF JUSTICE WHITE 767 
 
 Justice Van Devanter. 
 
 Associate Justice Moody resigning, 27 President Taft's next 
 appointment to the Supreme Court of the United States was 
 Willis Van Devanter. He was born in 1859; his father was 
 a lawyer of means at Marion, Indiana. Quitting that town, in 
 1884, Willis Van Devanter settled at Cheyenne, Wyoming. A 
 Territory at that time, Wyoming was sparsely settled, and its 
 politics were controlled by the Union Pacific Railway Company 
 and by sheep and cattle ranchers, both of which interests were 
 seizing natural resources on every hand. Among the men 
 conspicuous in Wyoming politics was Francis E. Warren, a 
 former stock raiser in Massachusetts, and Clarence D. Clark. 
 Warren was Territorial Governor, and he became the owner 
 of extensive ranches, often by methods a description of which 
 would form too intricate a digression here ; lands that had been 
 public property were converted into Warren's private estate. 
 To Warren and Clark the youthful Van Devanter closely ad- 
 hered. 
 
 Van Devanter became the City Attorney of Cheyenne; he 
 was then elected to the Legislature ; and when Wyoming was 
 admitted as a State, he was elected Chief Justice of the 
 Wyoming Supreme Court, for four years. But he resigned 
 in the year 1890, and became a member of the law firm of 
 Lacey and Van Devanter. This firm had previously been 
 that of Corlett, Lacey and Riner. W. W. Corlett had been for 
 more than twenty years an attorney for the Union Pacific Rail- 
 road, and had represented that railroad in a large number of 
 cases. Likewise had the firm of Corlett, Lacey and Riner. 
 Corlett had also been the attorney for large irrigation and lum- 
 ber companies such as the Hilliard Flume and Lumber Com- 
 pany. 
 
 27 We have previously related how when Justice Moody resigned, 
 Senator Lodge succeeded in having a bill passed by Congress granting 
 him a pension of $12,500 a year.
 
 768 HISTORY OF THE SUPREME COURT 
 
 Conditions in Wyoming. 
 
 The fraudulent acquisition of land in Wyoming was great 
 and incessant. In his exhaustive report for 1885, Commis- 
 sioner Sparks of the United States General Land Office related 
 how nearly the whole of Wyoming and a large portion of 
 Montana had been fraudulently surveyed, and the lands on 
 the streams fraudulently possessed under the desert land act, 
 to the exclusion of actual settlers. Extensive coal deposits 
 had been, or were being, fraudulently acquired in mass 
 " through expedited surveys, followed by fraudulent pre-emp- 
 tion and commuted homestead entries." 28 Much, if not all 
 of these available coal deposits had been seized under color 
 of law by men acting for Jay Gould, controlling the Union 
 Pacific Railroad. 29 The Pacific Railway Commission reported, 
 in 1887, that the Union Pacific Railway Company had fraudu- 
 lently appropriated coal lands of inestimable value, and that 
 of the vast area of lands which it had grabbed it had sold not 
 less than 7,000,000 acres without any patent from the Govern- 
 ment. 30 The fraudulent processes of acquiring Wyoming 
 coal lands are detailed at great length in other official 
 reports. 31 
 
 As for the fraudulent seizures by cattle companies in Wyom- 
 ing as well as elsewhere in the West, only a few suggestive 
 details of a mass can be given here. " In Wyoming," re- 
 ported Acting Commissioner Harrison of the General Land 
 Office to Secretary of the Interior Teller, on March 14, 
 
 28 House Executive Documents, First Session, Forty-Ninth Congress, 
 1885-1886, Vol. II : 167. 
 
 29 The Interstate Commerce Commission reported to the United States 
 Senate in 1908 that the acquisition of these coal lands had " been at- 
 tended with fraud, perjury, violence and disregard of the rights of 
 individuals." The report stated the specific methods used. 
 
 30 Report of Pacific Railway Commission, Vol. 1 : 192. 
 
 31 See, for example, Annual Report for 1889 of Acting Commissioner 
 W. M. Stone of the U. S. General Land Office, pp. 55, 56, etc.
 
 UNDER CHIEF JUSTICE WHITE 769 
 
 " one hundred and twenty-five cattle companies are reported 
 as having fencing on the public lands ; " the Wyoming Cattle 
 Company, composed of Scotch capitalists, was one of these 
 companies. 32 
 
 These operations went on without cessation. " Seventy- 
 eight desert land entries," reported S. M. Stockslager, Commis- 
 sioner of the General Land Office, in 1888, " embracing 48,000 
 acres, were entered in the Cheyenne District, Wyoming, and 
 transferred immediately after proof to a land and ditch com- 
 pany, which had been previously organized for the purpose of 
 acquiring title to said lands. Most of the entry men lived in 
 the Eastern States and had never seen the land, nor did they 
 make any expenditure thereon. The purchase money and all 
 other expenses were paid by the company who evidently used 
 the names of the entrymen in making the entries." 33 
 
 These details selected from a great number, give some slight 
 picture of conditions in Wyoming during the years when Van 
 Devanter was an attorney and judge. From 1891 to 1895 the 
 firm of Lacey and Van Devanter consecutively represented the 
 law interests of the Union Pacific Railway. 34 They also were 
 attorneys for the Powder River Cattle Company, the Searight 
 Cattle Company, the Frontier Land and Cattle Company, the 
 Springvale Ditch (Irrigation) Company, the Moorcraft Ranch 
 Company and other companies. 35 
 
 82 " Unauthorized Fencing of Public Lands," U. S. Senate Documents, 
 First Session, Forty-eighth Congress, 1883-1884, Doc. No. 127: 2. 
 
 83 Annual Land Office Report, 1888, p. 49. 
 
 31 See, Union Pacific vs. Redman, III Wyoming Reports: 679; the 
 same vs. Link, Ibid., 680; the same vs. Gilland, IV Ibid., 396; the 
 same vs. Schenk, V Ibid., 431 ; the same vs. Gilland, VI Ibid., 187, 
 etc. 
 
 35 See, Powder River Cattle Company vs. Board of County Com- 
 missioners, III Wyoming Reports, 597; Searight Cattle Company 
 vs. same, Ibid., 778 ; Frontier Land and Cattle Company vs. Bald- 
 win, Ibid., 765. These were cases in which taxes were contested. 
 For other cases enumerated see IV Ibid., 168 and V Ibid., 52. Lacey 
 and Van Devanter also represented the Union Mercantile Company 
 (III Ibid., 418) and the Traders' Insurance Company (IV Ibid., 423).
 
 HISTORY OF THE SUPREME COURT 
 
 The Artist Case. 
 
 Van Devanter, it seems, was also associated with John M. 
 Thurston, a Nebraska politician and a United States Senator 
 from that State. The proceedings in the case of Union Pa- 
 cific Railway Company vs. Artist give the names of Willis Van 
 Devanter and Thurston on the brief submitted for the rail- 
 road. 38 
 
 This case and its disposition deserve narration. On October 
 4, 1889, Andrew S. Artist, a Union Pacific Railway worker, 
 was injured while at work; his foot and leg were badly hurt. 
 He was taken to a hospital maintained at Denver by the com- 
 pany for its employes. To support this hospital the Union 
 Pacific forced each one of its employes to contribute twenty- 
 five cents a month; if any additional amount was needed, the 
 company contributed it. 
 
 In the course of the treatment of Artist at the hospital the 
 physicians inserted a rubber drainage tube in his leg. It was 
 admitted that because of the carelessness of physicians or at- 
 tendants a portion of the tube was left in the leg as the wound 
 healed and it remained there when he was discharged as cured, 
 on January 7, 1890. The result of this malpractice caused 
 Artist great suffering and partial disability until the remnant 
 of the tube was removed by a surgical operation in April, 1892. 
 
 Now on January 13, 1890, six days after his discharge, at a 
 time when both parties were ignorant of the fact that a piece 
 of tube remained in the leg, Artist, in consideration of receiv- 
 ing $150, had been induced to sign a release from damages. 
 
 But after suffering for more than two years and being re- 
 duced to partial disability because of the blunder at the hos- 
 pital, Artist brought suit for damages and obtained a judg- 
 ment in the lower court. 
 
 36 Thurston with John F. Dillon regularly appeared for the Union 
 Pacific Railroad. See 161 United States Reports, 456; Ibid., 95; 163 
 Ibid., 487; Ibid., 611 ; Ibid., 692; Ibid., 709, etc.
 
 UNDER CHIEF JUSTICE WHITE 77! 
 
 Thurston and Van Devanter appealed the case for the Union 
 Pacific Railway to the United States Circuit Court of Appeals, 
 District of Wyoming. On February 12, 1894, Judge Sanborn 
 reversed the judgment given in the lower court. Notwith- 
 standing the uncontested fact that the railroad's employes were 
 compelled to contribute twenty-five cents a month to the hos- 
 pital's maintenance, Judge Sanborn decided in favor of the 
 Union Pacific Railway Company on these remarkable grounds : 
 
 That a master who sent his servant for treatment to a hos- 
 pital maintained by the master for charitable purposes (!!) 
 was not responsible for injuries caused to the servant by the 
 negligence of hospital attendants, " where the master has ex- 
 ercised ordinary care in selecting such attendants." Further, 
 that a hospital maintained by the railroad company for the 
 free treatment of its employes, and " supported partly by 
 monthly contributions of employes and partly by the com- 
 pany, and maintained for profit, is a charitable institution." 37 
 
 Thus, although the compulsory contributions of the rail- 
 road's workers supported the hospital, they had no voice in 
 the managing of it, and were virtually adjudged paupers de- 
 barred from getting damages for the malpractice of physi- 
 cians. We have given this case and extraordinary decision 
 exactly as the facts are stated in the court records. 
 
 Van Devanter's patrons and pushers, Warren and Clark, 
 became United States Senators. Van Devanter had been of 
 great assistance to them; he had been chairman of the 
 Wyoming Republican State Committee in 1892, a delegate 
 to the Republican National Convention and a member for the 
 Wyoming Republican's on the Republican National Commit- 
 tee in 1896. 
 
 Through the influence of Senators Warren 38 and Clarke, 
 
 37 Union Pacific R'way Co. vs. Artist, 60 Federal Reports, 365-370. 
 The italics are mine. G. M. 
 
 38 Warren was the head of the Warren Land and Live Stock Com- 
 pany of Wyoming. He became the chairman of the Senate Military 
 Affairs Committee. There was a small public forest reserve called
 
 772 HISTORY OF THE SUPREME COURT 
 
 Van Devanter, in 1897, was appointed by President McKinley 
 an assistant United States Attorney-General, and was assigned 
 to the Interior Department which, it is needless to say, had 
 jurisdiction over the public lands. 
 
 In 1903 a vacancy occurred on the bench of the Eighth 
 Judicial Circuit. Warren and Clarke were now high per- 
 sonages in the Senate and of great influence at the White 
 House ; Warren headed the Senate Committee on Military 
 Affairs, and Clark was chairman of the Senate Committee 
 on Judiciary. Responsive to their suggestions, President 
 Roosevelt appointed Van Devanter to the Circuit Court 30 
 where he sat with Judge Sanborn, the identical judge who had 
 decided the Artist case nine years previously when Van De- 
 vanter and Senator Thurston represented the Union Pacific 
 Railway. 
 
 Bryan's Comments. 
 
 Judge Van Devanter's appointment to the Supreme Court 
 of the United States was severely and pointedly criticized by 
 W. J. Bryan, in one of the series of statements and speeches 
 recently issued by him. In a speech at Lincoln, Nebraska, 
 on November 5, 1911, Bryan asserted that Van Devanter was 
 appointed by President Taft because of his known bias in 
 favor of the dominant corporate interests. " Judge Van De- 
 
 " Crow Creek " in Wyoming which was a military forest reserve and 
 which the War Department wanted for military maneuvers. This 
 reservation, however, had been leased to various small sheep raisers 
 with the privilege of grazing. The reservation was leased to War- 
 ren's company, and in 1910 the small cattle men were ejected. 
 
 39 Statement in a laudatory biography of Van Devanter, the Sat- 
 urday Evening Post," issue of March 18, 1911. "Mr. Van Devan- 
 ter," said this account, " looks like a Western man and acts like one. 
 He is active, virile, alert although not quick of speech. He is 
 good looking, good-humored and most companionable. He is an 
 earnest student and a prodigious worker. Although he is essentially 
 a jurist, he keeps closely in touch with every phase of life and is much 
 more human than the usual lawyer in whom the judicial temperament 
 predominates. He is an outdoor man, who fishes, hunts, rides, plays 
 golf and has fun."
 
 UNDER CHIEF JUSTICE WHITE 7/3 
 
 vanter," Bryan asserted, " is the man who gave a decision 
 giving to the Union Pacific Railroad land along the right of 
 way amounting in value to millions of dollars ; he is the judge 
 who held that two railroads running parallel to each other 
 for two thousand miles were not competing lines, one of the 
 roads being the Union Pacific Railroad." Bryan continued : 
 
 " President Taft knew of these decisions, for he was noti- 
 fied by letter before he made the appointment, and the man 
 who wrote received a letter from the President's secretary 
 saying the information would receive consideration. 
 
 " And in spite of the fact that the President knew that Van 
 Devanter was biased in favor of the great interests, he ap- 
 pointed him to the Supreme Bench. Upon whose recommen- 
 dation was the appointment made ? Will President Taft make 
 this information public? 
 
 " I have read the President does not like being questioned 
 by me concerning the Supreme Court appointments, and that 
 he has said the questions are an insult to him and to the judge 
 as well. I have to say that if President Taft is that thin- 
 skinned he will have to get used to it, for I will have considera- 
 bly more to say before I am through with the subject." 
 
 Reporting Taft's appointment of Van Devanter, a Washing- 
 ton dispatch published in a friendly partisan newspaper, the 
 New York Press, issue of December 12, 1910, stated, " It was 
 said to have been Mr. Knox's influence which finally turned 
 the tide in favor of Judge Van Devanter as against Judge 
 William C. Hook, also of the Eighth Circuit." The Knox re- 
 ferred to was Philander C. Knox, former attorney for the 
 Carnegie Steel Company, whose appointment as Attorney-Gen- 
 eral of the United States, Andrew Carnegie, the powerful multi- 
 millionaire magnate, had recommended to President McKinley, 
 and whose former law partner, Judge Reed, has been so large 
 a factor in the Directorate of the mighty Steel Trust. 
 
 Knox has been a sort of premier under the three adminis- 
 trations of McKinley, Roosevelt and Taft ; and in view of the
 
 774 HISTORY OF THE SUPREME COURT 
 
 Supreme Court's " Rule of Reason " decision (described later 
 in this chapter) it is significant that Knox, in a speech deliv- 
 ered before the Pittsburg Chamber of Commerce, on October 
 14, 1902, outlined virtually the very doctrines that the Supreme 
 Court of the United States adopted, nearly nine years later, in 
 its " Rule of Reason " decision applying to the trusts. Thus 
 can glimpses be obtained of the powerful capitalists, or their 
 spokesmen, asserting the construction of laws that they wanted 
 and needed, and thus also can be seen how decisions have 
 precisely followed these requirements. 
 
 Of all of the appointments to the Supreme Court of the 
 United States by President Taft that of Joseph R. Lamar, of 
 Georgia, provoked least criticism, because so little was known 
 of his career. 
 
 Justice Lamar as Railroad Attorney. 
 
 Judge Lamar was born in 1857 ; his father was a Camp- 
 bellite preacher at Augusta; his maternal grandfather was 
 Joseph Rucker, owner of eleven hundred slaves. The Judge 
 was a second cousin of L. Q. C. Lamar, of Mississippi, whose 
 career both before and after his appointment as an Associate 
 Justice of the Supreme Court of the United States has been 
 depicted in a previous chapter. In his practice of law at 
 Augusta, Joseph R. Lamar's clientele seem to have been largely 
 corporate interests. 
 
 One of the most conspicuous of his cases was that of the 
 Central Trust Company of New York vs. the Marietta and 
 North Georgia Railroad Company. Lamar represented the 
 Central Trust Company, one of the most powerful of such com- 
 panies in the United States. The action was brought by the 
 Central Trust Company to foreclose on an extensive mortgage 
 it held to cover an issue of bonds of the Marietta and Georgia 
 Railroad Company. 40 
 
 40 See, 75 Federal Reporter: 200. (May 12, 1806.) The Central 
 Trust Company also had extensive holdings in other railroads. Ac-
 
 UNDER CHIEF JUSTICE WHITE 775 
 
 In 1903 Lamar was appointed to the State Supreme Court 
 of Georgia. After his resignation from that court he ree'n- 
 tered law practice at Augusta, forming a partnership with 
 Judge E. H. Callaway under the firm name of Lamar and 
 Callaway. Not long before his appointment to the Supreme 
 Court of the United States he was one of counsel for the Cen- 
 tral of Georgia Railway Company in a case the decision in 
 which by the Supreme Court of Georgia was regarded in 
 financial-railway quarters as " epoch-making." 41 
 
 Previously it had been generally ruled by the courts, espe- 
 cially in New York, that an income bond practically gave the 
 holder no greater rights to interest than the stockholders to 
 dividends. The courts, these rulings had further held, could 
 not, save in exceptionally scandalous cases, interfere with the 
 decision of railroad directors not to pay dividends. The 
 Georgia Supreme Court, however, held that the courts would 
 determine for themselves whether the income was really 
 " earned " regardless of what action the directors took. 
 Wollman's account of this case proceeds: 
 
 " In the Georgia case there were many discussions as to 
 what was income. I will refer only to two. The railway 
 company owned all the stock of a money-earning steamship 
 company. The steamship company paid the railroad company, 
 its sole stockholder, a large sum of money, but did not say 
 that it paid it as dividends ; in fact the steamship company's 
 directors did not declare any dividends. The money was un- 
 cording to a list of principal railroad stockholders made public by the 
 Interstate Commerce Commission, in December, 1909, the Central Trust 
 Company of New York was trustee for the Louisville and Nashville 
 Railway Company of $5,501,000 of common stock of the Nashville, Chat- 
 tanooga and St. Louis Railroad. The same report showed that the Cen- 
 tral Trust Company of New York held $14,418,900 of common stock of 
 the Chicago and Alton Railroad ; was trustee for $19,995,000 of cornrnon 
 stock of the Philadelphia and Reading Railroad; and held $70,212,500 
 of common stock of the Chicago, Rock Island and Pacific Railroad, and 
 $380,000 of common stock of the Toledo, St. Louis and Western Rail- 
 road. 
 
 41 See an account of this case by Henry Wollman in the New York 
 Times Annual Financial Review, for 1911, p. n.
 
 776 HISTORY OF THE SUPREME COURT 
 
 questionably paid in lieu of dividends, and the failure to call it 
 dividends was probably a mere device. The court wisely held 
 that this large amount should be considered as part of the 
 income of the railroad company. On the other hand, the 
 court held against the income bondholders, on their conten- 
 tion that the directors had no right to charge against income 
 amounts paid for equipment. 
 
 "Judge Lamar, who has just been appointed Justice of the 
 United States Supreme Court, was of the counsel for the 
 railway company " [the Central of Georgia Railway Com- 
 pany]. 
 
 Moody, in his exhaustive work issued in 1904, placed the 
 Central of Georgia Railway System in the group of railroads 
 controlled by J. Pierpont Morgan. 42 This system included 
 1,877 miles and was capitalized at $54,146,000. In turn it 
 was controlled by the Southern Railway Company (con- 
 trolled by Morgan) with its $365,755,265 capitalization. 
 Special Report No. I of the Interstate Commerce Commission, 
 March 10, 1908, detailed the close connection between the 
 Southern Railway Company, the Louisville and Nashville 
 Railroad Company, the Central of Georgia Railway Com- 
 pany, the Atlantic Coast Line and many other railroads. 43 
 
 While controlling these vast railroad systems, Morgan, at 
 the same time, controlled or dominated some of the most 
 powerful industrial and commercial trusts. The great Steel 
 Trust was organized by him, likewise the Shipping Trust, and 
 h acquired control or interest in many other trusts of vast re- 
 sources and proportions. 
 
 As a result of the decision of the Supreme Court of Georgia, 
 committees representing Central of Georgia Railroad bond- 
 holders arranged, in December, 1910, to sell the bonds de- 
 
 < 2 "The Truth About The Trusts": 434-435- In the year 1904 the 
 total capitalization of all lines embraced in the Morgan group was more 
 than two and a half billion dollars. Since then Morgan has extended 
 his control. 
 
 43 " Intercorporate Relationship of Railways," pp. 40-41.
 
 UNDER CHIEF JUSTICE WHITE 777 
 
 posited with them to the Illinois Central Railroad which, it is 
 said, now controls the road through stock ownership. 
 
 The last important case in which Judge Lamar appeared 
 before his appointment to the Supreme Court of the United 
 States was as the principal counsel for the Atlantic Coast 
 Line Railroad. This case was argued before the Supreme 
 Court of the United States on October 19 and 20, igio. 44 
 It was an action on the part of the Atlantic Coast Line Rail- 
 road, plaintiff in error, to attack the twentieth section of the 
 Hepburn Interstate Commerce Act on the plea that the initial 
 carrier was not responsible for the action of all subsequent 
 carriers for damages to freight. One of the assistants of 
 Attorney-General Wickersham in arguing for the Government 
 was John Maquard Harlan, a son of Justice Harlan. The 
 Supreme Court's decision given out on January 3, 1911, and 
 written by Justice Lurton, upheld the Hepburn Act and de- 
 nied that it interfered with " liberty of contract." * 5 
 
 Parenthetically, another decision of the Supreme Court of 
 the United States delivered by Justice Lurton later in the 
 same year (Dec. 18, 1911) may be here referred to. This 
 decision affirmed a decision of the Supreme Court of Illinois 
 to the effect that the City of Chicago was liable to railroad 
 companies for damages suffered by firms or corporations in 
 the great railroad strike of 1894. The particular sum of 
 damages recovered in this case was $425,500. As a matter of 
 law there was nothing astonishing in this decision; it simply 
 reaffirmed statutes and court precedents that public treasuries 
 would have to stand indemnity for losses caused by mobs 
 and riots. But in point of fact the mischief done in that 
 
 44 Atlantic Coast Line R'd vs. Riverside Mills, 219 United States Re- 
 ports : 186. 
 
 45 In announcing Lamar's appointment to the Supreme Court of the 
 United States, a special Washington news dispatch in the Atlanta Jour- 
 nal, December 13, 1910, stated: " Practically all of the opinions written 
 by Lamar as a member of the Georgia Supreme Court were examined 
 by the President and the Attorney-General, and they were impressed 
 favorably."
 
 778 HISTORY OF THE SUPREME COURT 
 
 strike was due not to the strikers, but (as the testimony before 
 the special commission appointed by President Cleveland 
 showed) to United States deputy marshals and deputy sher- 
 iffs many of whom were drunk and provoked trouble and even 
 committed robberies. The commission reported that no vio- 
 lence or destruction of property was done by the strikers or 
 their sympathizers at Pullman, and that no disorder could be 
 traced to them. This report was easily available as a public 
 document, but the decision of the Supreme Court reveals no 
 familiarity with its findings. The whole burden of the decision 
 was to place the responsibility upon " riots and mobs." 40 
 
 " Rule of Reason " Applied. 
 
 Of other recent decisions of the Supreme Court of the United 
 States only five will be referred to here. Those in the Stand- 
 ard Oil Company and Tobacco Trust cases will be considered 
 first. These decisions are so freshly in memory and of such 
 common knowledge that but the briefest description will be 
 given of their pertinent points. 
 
 The Supreme Court decreed that both trusts should undergo 
 a form of dissolution but the reorganization, so-called, while 
 nominally splitting these trusts into a number of apparently 
 separate components, does not in reality efface the trusts. 
 This pseudo dissolution has been admitted by those familiar 
 with methods of trust operations to be a farcical makeshift. 
 Moreover, by putting the trusts to some trouble in the " dis- 
 solution " process, the grounds were supplied for an agitation 
 in favor of Federal incorporation, which is to say, legalizing 
 of trusts. 
 
 But the important, historic thing that the Supreme Court did 
 in making these decisions was to introduce an entirely new 
 principle into law a principle arbitrarily promulgated yet in 
 accordance with the demands of industrial evolution. No 
 
 48 City of Chicago, Plaintiff in Error vs. Frank Sturges.
 
 UNDER CHIEF JUSTICE WHITE 779 
 
 power but the Supreme Court of the United States could or 
 would have ignored the plain meaning of a statute of Congress, 
 and construed that law to mean something far different than 
 what it actually said. The Sherman Anti-Trust Act says that 
 every combination in restraint of trade is illegal. Nor has 
 that law ever been repealed. But by a stroke of the pen the 
 Supreme Court of the United States boldly and arbitrarily 
 amended it by simply holding that Congress meant to say that 
 every combination in undue restraint of trade was illegal. No 
 longer, therefore, are trusts sweepingly condemned in one cate- 
 gory; the Court "distinguished" and pointed out the way to 
 the gradual legalization of trusts. To prove a trust to be crim- 
 inal it was now .necessary to prove that it was an " undue " 
 or " unreasonable " trust. This was the now famous " Rule 
 of Reason " pronounced by the Supreme Court. 
 
 Justice Harlan who, as we have said, was a reactionary 
 regarding almost every question but that of the Negro race, 
 pointed out in his dissenting opinion that this construction 
 amounted to an amendment of the law rather than merely an 
 interpretation, and that it constituted an usurped legislative 
 act on the part of the Court. He did not understand that 
 economic forces govern men's actions, and that the dominant 
 interests of a time will infallibly have their will expressed 
 in law, whether legislative law or court law. Illegality of pro- 
 ceeding or usurpation of power never troubles the dominant 
 class or the representatives of that class. They who have the 
 economic might command all other kinds of might, and their 
 demands are put into effect, if not by one means, then by 
 another. 
 
 This was the last important decision in which Justice Harlan 
 participated. He died on October 14, 1911, aged seventy-eight 
 years. For nearly thirty-four years he had served on the 
 Supreme Court of the United States, and the total estate that 
 he left amounted to but $13,000, of which $7,200 was in life 
 insurance.
 
 780 HISTORY OF THE SUPREME COURT 
 
 Employers' Liability Act Upheld. 
 
 The third recent decision in question was the Supreme 
 Court's decision, on January 15, 1912, holding that the Federal 
 Employers' Liability Act passed by Congress was constitu- 
 tional. This law provides that such doctrines as the " fellow 
 servant " defense used by corporations shall no longer apply 
 to cases of injuries sustained in interstate commerce. The 
 distinction, however, between interstate and intrastate com- 
 merce is of the most vital importance ; to avail himself of the 
 benefits of the law, the injured worker will have to prove that 
 he was not engaged in intrastate commerce, which is to say, 
 commerce within the boundaries of a State. And what new 
 doctrine will be advanced by corporation attorneys to defeat 
 the workers remains to be seen ; without doubt some effective 
 plea will be invented for the purpose. 
 
 The decision of the Supreme Court validating this law was 
 written by Justice Van Devanter. It held that Congress had 
 full power to enact such a law, and that Federal statutes on 
 the subject were superior to State laws. Recalling that the 
 Supreme Court had declared a similar law, passed in 1906, 
 unconstitutional, the skeptical asserted that the Supreme Court, 
 despite its professions of lofty aloofness, carefully " followed 
 the election returns," and was not unmindful that the impor- 
 tant Presidential election of 1912 was in sight. Such an as- 
 sumption would imply that realizing the stern, organized 
 awakening of the working class, the policy had been begun 
 of presenting sops in order to prevent that movement from 
 developing into a mighty revolutionary force. 
 
 Perhaps this implication is not incorrect. But prudence, 
 bred of knowledge and experience, demands that before arriv- 
 ing at any solid judgment, it may be well to wait and see what 
 other decisions in the near future follow this precedent. One 
 of the precedents cited by Justice Van Devanter was the de- 
 cision of Chief Justice Marshall in the case of McCulloch vs.
 
 UNDER CHIEF JUSTICE WHITE 781 
 
 Maryland, in which case Marshall sustained the constitution- 
 ality of the chartering by Congress of the Bank of the United 
 States. Significantly, the great capitalist interests have been 
 recently agitating for two laws in particular one law legal- 
 izing the trusts, and another law chartering a Central Bank; 
 and if these laws are passed, as they doubtless will be if the 
 magnates remain in control, the Supreme Court will be called 
 upon to pass upon their constitutionality, and expected to give 
 another application of the " Rule of Reason." 
 
 Initiative and Referendum Valid. 
 
 The fourth important recent decision was that of February 
 19, 1912, in which the Supreme Court of the United States 
 decided, in the case of the initiative and referendum law 
 adopted by the people of Oregon, that it had no jurisdiction 
 to pass upon the validity of that law, and that a law of such 
 a purely political character was subject solely to the judgment 
 of Congress. By implication, therefore, the law was pro- 
 nounced constitutional. The question of the validity of simi- 
 lar laws in ten other States depended upon this decision. 
 
 It is known that during the time when the test action in 
 this case was under consideration by the Supreme Court of 
 the United States, the members of that court were individually 
 swamped with a deluge of letters from a large number of 
 people throughout the country demanding that the initiative 
 and referendum law be declared valid. Did this remarkable 
 and unprecedented demonstration of popular will have its effect 
 upon the Justices? At the same time, the agitation for the 
 recall of judges had assumed deep national proportions; and 
 when Senator La Follette, in his speech during this time at 
 Carnegie Hall, asserted that he even favored the recall of the 
 Justices of the Supreme Court of the United States, he was 
 wildly applauded. Whatever was the nature of the delibera- 
 tions of the Supreme Court that led to this decision, the sup-
 
 782 HISTORY OF THE SUPREME COURT 
 
 porters of that Court immediately, when the decision was an- 
 nounced, used that decision as a prime argument why the recall 
 of judges should not be adopted. 
 
 But shortly after the foregoing decision, another decision 
 of a vastly different character followed. In this particular 
 decision, handed down on March n, 1912, the power of the 
 trusts was greatly enlarged and intrenched, and the prohibition 
 of the Sherman Anti-Trust Act against restraint of trade was 
 partially nullified. 
 
 By a majority of one seven Justices participating the 
 Supreme Court of the United States held that a patentee could 
 not only dictate prices for the patent, but also the conditions 
 of sale and use. 
 
 Theoretically, the patent system was devised for the pro- 
 tection of the individual inventor; as a matter of well-known 
 fact, however, nearly all of the trusts and large corporations 
 appropriate for themselves the inventions of employes, rarely, 
 if ever, paying their salaried workers any extra remuneration 
 for the inventions. Patent rights form, to a considerable ex- 
 tent, the bases of many of the industrial trusts; and in the 
 recent actions of the Government against various of these 
 trusts, a vital point of the prosecution dealt with monopoly 
 of patent rights. These actions, it is worth noting, were 
 under way at the very time that the Supreme Court thus vir- 
 tually decided that the owner of a patent had an unrestricted 
 monopoly on all articles used in its operation, and could fix 
 its price and prescribe its use. 
 
 Justice Lurton delivered this extraordinarily generous and 
 sweeping decision ; McKenna, Holmes and Van Devanter con- 
 curred. Chief Justice White unsparingly denounced it, Jus- 
 tices Hughes and Lamar joining in his dissenting opinion. It 
 was a decision that could have been expected from Lurton; 
 he had, in 1896, when a Circuit Court judge, given a similar 
 decision in what was called the " button fastener case," on 
 which occasion Judge Taft (now President) and Judge Ham-
 
 UNDER CHIEF JUSTICE WHITE 783 
 
 mond, comprising the judges of the Sixth Circuit, had con- 
 curred with him. 
 
 Appointment of Chancellor Pitney. 
 
 Harlan's successor, nominated by President Taft, on Feb- 
 ruary 19, 1912, was Mahlon Pitney, Chancellor of the Court 
 of Appeals of New Jersey. It is under the accommodating 
 laws of New Jersey that nearly all of the largest industrial 
 trusts are incorporated, arid as Chancellor of the Court of Ap- 
 peals of that State Pitney had every opportunity to become 
 thoroughly familiar with the legal aspects of the trust question. 
 The Standard Oil Company, the Steel Trust, the Tobacco 
 Trust, the Sugar, Beef, Copper, Whisky, Machinery, Tin Can, 
 Harvester, Rubber, Leather, Cotton Oil, Cotton Yarn, Cotton 
 Duck, Felt and Smelter Trusts are a few of the great number 
 of trusts incorporated under the laws of New Jersey. Actions 
 concerning many of these trusts have, from time to time, occu- 
 pied the courts of that State. 
 
 When nominated as Associate Justice of the Supreme Court 
 of the United States, Mahlon Pitney was fifty-four years old. 
 His father, Henry C. Pitney, had been a Vice Chancellor of 
 New Jersey. Admitted to the bar in 1882, Mahlon Pitney's 
 first notable client as well as friend was George Richards, a 
 very rich man reckoned a millionaire, in fact of Dover, 
 New Jersey. Later, Pitney lived in Morristown, that essen- 
 tially plutocratic town which has the reputation of having at 
 least 100 millionaires as residents ; and there Pitney was situ- 
 ated when appointed to the Supreme Court. Elected to Con- 
 gress in 1895, and reflected, he resigned in 1899, having been 
 elected to the New Jersey Senate of which he became Presi- 
 dent. He became a judge of the New Jersey State Supreme 
 Court, in 1901, and in 1908 was appointed Chancellor of New 
 Jersey. 
 
 Upon the announcement of Taft's selection of Pitney for
 
 784 HISTORY OF THE SUPREME COURT 
 
 the Supreme Court of the United States, labor organizations 
 denounced Pitney for decisions in which peaceful measures 
 by the trade unionists in their struggle for better conditions 
 were held to be illegal, but Chancellor Pitney explained that 
 one of the decisions thus criticised had been delivered orally 
 by his father, Vice Chancellor Henry C. Pitney, in 1903. In 
 the case of another decision rendered recently in the glass 
 blowers' strike, declaring it to be unlawful for strikers to use 
 peaceful persuasion and picketing, Chancellor Mahlon Pitney 
 said that this decision had been written by Vice Chancellor 
 Bergen. But Pitney admitted that he had affirmed this de- 
 cision in an opinion in which he had declared persuasion un- 
 lawful and actionable. In defense of his action he went back 
 into the precedents of the moldy past, when law was expressly 
 aimed to prevent the workers from organizing ; he cited Black- 
 stone's commentaries, several cases in English law, and some 
 decisions of the United States Courts. 
 
 However, there could be no mistaking the gratification that 
 his nomination aroused among the great capitalist interests; 
 the pro-trust newspapers and the capitalist press in general 
 acclaimed his appointment, and he received congratulatory 
 telegrams from judges, United States Senators and other ap- 
 provers, all known for their devotion to the existing capitalist 
 system, and for their exaltation of the supereminence of large 
 property rights. 
 
 When Pitney's nomination came before the United States 
 Senate, that body, for three successive days, in executive ses- 
 sion, discussed his record. His opponents severely attacked 
 him for a decision enjoining workers from doing such lawful 
 and innocent acts as picketing during a strike and from per- 
 suading other workers not to take the strikers' places in the 
 mills. But criticisms that he was inimical to the workers only 
 the more heightened Pitney's prestige and strengthened his 
 cause in the Senate composed as it largely was, and is, of 
 multimillionaire magnates or of the outright retainers and
 
 UNDER CHIEF JUSTICE WHITE 785 
 
 covert servers of the great capitalist interests ; his nomination 
 was confirmed, on March 13, 1912, by (it was learned) a vote 
 of fifty to twenty-six. 
 
 Compared to the splendor of the residences of his neighbors, 
 Pitney's house in Morristown is modest. " The only mark of 
 luxury in his manner of living," says an account, " is in the big 
 black automobile sometimes to be seen standing at his door. 
 The house is a brown-shingled little place that hardly exceeds 
 the size of a large bungalow, standing inconspicuously among 
 many other more pretentious residences on Collis Avenue, not 
 far from the enormous, castle-like Robert H. McCurdy resi' 
 clence." 
 
 Trust Magnates Triumph. 
 
 What did the "Rule of Reason" signify? It denoted the 
 final triumph of the few but all-powerful trust magnates con- 
 trolling the resources of the country, and the submergence of 
 the remaining sections of the industrial middle class. 47 For 
 decades this middle class had fought persistently and stub- 
 bornly for self-preservation. It deluded itself into the belief 
 that it had statute law on its side, but the Supreme Court of 
 the United States, worthy representative of the dominant capi- 
 talist group of the era, disillusioned it by decreeing that the 
 very statute upon which the middle class relied, meant some- 
 thing very different from what was supposed. The " Rule of 
 
 47 The utterances of some of the magnates were significant. 
 
 J. Pierpont Morgan : " I consider the decision concerning Standard 
 Oil entirely satisfactory ; moreover, I expected it. . . ." 
 
 Jacob H. Schiff: "I believe that the general effect of the Supreme 
 Court decision will be most favorable to the corporations of the coun- 
 try. . . ." 
 
 George J. Gould :"...! am for the Supreme Court every time. 
 For more than a hundred years it has been at work, and it has never 
 made a mistake. . . ." 
 
 Frank J. Gould : ". . . It's great ! " 
 
 Henry Clews: ". . . It may be taken for granted, therefore, that 
 hereafter there will be nothing but good trusts in the eyes of the law."
 
 786 HISTORY OF THE SUPREME COURT 
 
 Reason " was an historic utterance far more historic and 
 significant of vast changes in society than was currently 
 thought. The next application of the " Rule of Reason " 
 will be made by the organized working class in its own interests 
 to the end that it will expropriate its expropriators. 
 
 THE END
 
 INDEX 
 
 Absentee landlordism, 93-94, 98, 101-102, 117-127, 169, 172-173, 176^-186, 
 247-252, 340-353, 376, 439, etc. See also under specific headings, 
 railway and canal land grants, railroad appropriations of land, and 
 private land claims. 
 
 Adair case, 692, 729. 
 
 Adams Express Co., 448, 556, 663. 
 
 Adams, Henry, cited, 142. 
 
 Adams, John, 126, 147, 201, 222, 223; appoints John Marshall Chief 
 Justice, 227, 242. 
 
 Adams, John Quincy, 177; an attorney for the great corrupt Yazoo 
 land grant, 223, 242, 260-263, 293, 331, 333, 399. 
 
 Adams, Samuel, 78. 
 
 Addyston Pipe and Steel Company decision, 638. 
 
 Aguilar, Francisca, 332. 
 
 Aguilar, Francisco, 610. 
 
 Aguilar, Thomas de, 323, 326, 333-336, 349, 352, 405-406. 
 
 Alabama, 306; seizures of Indian lands in, 343. 
 
 Alabama Midland Railway Co., 637. 
 
 Alabama and Tennessee Railroad Co., 435. 
 
 Albany and Susquehanna Railroad, 500. 
 
 Aldrich, Charles H., 622. 
 
 Aldrich, George, 417. 
 
 Alexander, James W., 754. 
 
 Alexander, William (Lord Stirling), 105, 140. 
 
 Alien and Sedition Law, 222-223, 246. 
 
 Allen, George I., 623. 
 
 Allen, Col. Samuel, claims New Hampshire, 18-19. 
 
 Alliance Bank (of Canton, O.), 652. 
 
 Alliance Gas Company, of same, 652. 
 
 Allison, John, Jr., 719. 
 
 Allison, William B., 559, 709. 
 
 Altgeld, John P., 621. 
 
 Alvarado, Juan, 450, 467, 503. 
 
 Alvarez, Juan, 609. 
 
 Amboy, Lansing and Traverse Bay R'd, 592. 
 
 American Bell Telephone Co. (see also Bell Telephone Co.), 575-576. 
 
 American Fur Co. (see also John Jacob Astor), 110-215. 
 
 American Federation of Labor, 688. 
 
 American Railway Union, 620-621, 623, 643. 
 
 American Screw Co., 652. 
 
 American Sugar Refining Co. (see Sugar Trust). 
 
 787
 
 INDEX 
 
 Amory, W. N., cited, 612, 741, 759-764, 758, 760-764. 
 
 Amoskeag Manufacturing Co., 658-659. 
 
 Anderson, Joseph, cited, 390. 
 
 Andrews, John, 490. 
 
 " Antelope " case, 296-300, 398. 
 
 Anti-Monopoly League, 525-558. 
 
 "Anti-Renters' War," 38, 150. 
 
 Anti-Trust League, 667-668. 
 
 Appalachicola Land Co., 340. 
 
 Arago case, 636-637. 
 
 Archbold, John D., 700, 737, 738. 
 
 Arguello, Maria de, 463. 
 
 Arizona, land frauds in, 608-610. 
 
 Arkansas, land frauds in, 306, 329, 338, 375-390, 409, 435. 
 
 Armijo, Governor, 565. 
 
 Armor plate frauds, 666-667. 
 
 Armour, Philip D., 583. 
 
 Arnold, D. H., 627. 
 
 Arredondo claims to enormous areas in Florida, 326-327, 332. 
 
 Arredondo, F. M., 326, 332-333 ; vast claim validated by Chief Justice 
 Marshall, 334-336; case cited as precedent, 419, 420, 451, 
 
 Arredondo, J. M., land claims, 326, 332-333. 
 
 Ashland and Vermilion Railroad, 510. 
 
 Astor, John Jacob, 35 ; gets land obtained by fraud, 40-42 ; Aaron Burr's 
 connection with, 41; debauching of Indians, no, 215, 2/4; decision 
 of Supreme Court of the U. S. in his favor, 336-337, 341, 306. 
 
 Asylum Company, 194. 
 
 Atchison, Topeka and Santa Fe Railroad, 586. 
 
 Atkins, Edward F., 635. 
 
 Atkinson, Edward, cited, 574. 
 
 Atlantic Coast Line (Railway), 776-778. 
 
 Atlantic and St. Lawrence Railroad, 479. 
 
 Atlas Mining Co., 592. 
 
 Austin, Moses, 411. 
 
 Austin, Stephen F., 411, 413. 
 
 Babcock, Amos C., 579-582. 
 
 Babcock, Orville E., 515. 
 
 Bailey, James M., 596. 
 
 Bailey, Joseph W., 738. 
 
 Baker, George F., 613, 628, 683, 748. 
 
 Baldwin, Henry, appointed Associate Justice Supreme Court of TJ. S., 
 
 331; delivers decision in Mitchell case, 343-345; 358, 370, 309; his 
 
 death, 407-408. 
 
 Baldwin Locomotive Works, 735. 
 Balli, Juan J., 423. 
 Baltimore, Lord, 362. 
 Baltimore Mexican Co., 362-363, 365. 
 Baltimore Improvement Co., 361. 
 
 Baltimore and Ohio Railroad Co., 269, 586, 595, 616, 625, 653, 657. 
 Bandelet, John, 158. 
 Banks, 106, 114, 150, 153-157, 160-162, 167, 179, 191, 206, 214, 216-217,
 
 INDEX 789 
 
 220-221, 223, 253, 266-269, 277, 288, 291, 293-294, 334, 356, 357, 360, 
 371-372, 394-396, 413, 467, 479-480, 485-489, 490-492, 495, 497, 517, 
 522, 531, 582, 583, 596, 628, 651-652, 701 (see also under specific 
 names of banks). 
 
 Bank of Agriculture, 413. 
 
 Bank of Albany (N. Y.), 214. 
 
 Bank of America, 161, 206, 216-217. 
 
 Bank of Circleville (O.), 497. 
 
 Bank of Columbia, 360. 
 
 Bank of the Commonwealth (Ky.), 394. 
 
 Bank of England, 150. 
 
 Bank of the Metropolis (Wash., D. C), 360. 
 
 Bank of New York, 161-162, 214. 
 
 Bank of North America, 153-157, 160, 162, 179, 191, 220, 223, 259. 
 
 Bank of Pennsylvania, 220. 
 
 Bank of Toledo (O.), 531. 
 
 Bank of the United States (first chartered bank of the name), 106, 114, 
 214, 253; (second chartered institution) 288, 293-294, 334, 356-357, 
 361, 371-372, 393-394, 489-492, 562. 
 
 Bank of Wooster (O.), 497. 
 
 Barbour, Philip, 102. 
 
 Barbour, Thomas, 391-392. 
 
 Barker, Wharton, 669. 
 
 Barnard, Judge, 513. 
 
 Bastrop private land claim, 320-321, 373, 435-436. 
 
 Baxter, Ed., 718-719. 
 
 Baxter, W. M., 718-719. 
 
 Bayard, Anna, 138. 
 
 Bayard, Nicholas, origin of immense estate, 32, 138. 
 
 Bayard, William, 38-39; intimate friend of John Jay, 40; further de- 
 tails of origin of large estate, 42-43; 116, 204, 206-207, 218, 287. 
 
 Beale, J. C., 412. 
 
 Beall, Thomas, 176. 
 
 Beaubien, Charles, 565-567. 
 
 Beef Trust, 671. 
 
 Beekman, Henry, origin of vast landed estate, 33, 140. 
 
 Bellomont, Earl of, and Captain-General, charges attempts at bribery, 
 18-19; exposes how vast landed estates were corruptly secured, 
 32-33; seeks to have them confiscated, 34-35, 75, 138. 
 
 Belmont, August, 760. 
 
 Bell Telephone Co., 575-576. 
 
 Benjamin, Judah P., 320, 434-435- 
 
 Benton, Thomas, 293-294 ; cited, 343, 403 ; cited, 490-492. 
 
 Benson, Judge, decisions, 39-40; studied law under Chancellor Kent, 
 40; 206, 213. 
 
 Berkeley, Lord John, 25. 
 
 Biddle, Nicholas, 490. 
 
 Bingham, William, 154, 179, 180, 478. 
 
 Birtch, Mary, case of, 652-653. 
 
 Black, Judge J. C, 517, 522, 525. 
 
 Black, U. S. Attorney-General, cited, 449-450, 456, 457, 461. 
 
 Blacklisting, declared legal, 692-693, 729.
 
 790 INDEX 
 
 Blair, John, appointed Associate Justice, Supreme Court of U. S., 147 ; 
 resigned, 147. Also, 205. 
 
 Blake, George, 184. 
 
 Blake, Luther, cited, 379. 
 
 Elaine, James G., 514. 
 
 Blatchford, Richard, 562. 
 
 Blatchford, Samuel, appointed Associate Justice, Supreme Court of 
 U. S., 564; antecedents and career previously, 562-565, 576. 
 
 Bliss, Cornelius N., 731. 
 
 Bliss, Ezra, 536. 
 
 Boisdore private land claim, 321, 436. 
 
 Bolton, James R., 456-457. 
 
 Bolton Screw Co., 652. 
 
 Bonaparte, Charles J., 622. 
 
 Bond, John R., 536. 
 
 Boone, Governor, 45-46. 
 
 Borden, John P., 416, 417, 418-419. 
 
 Borego, Jose B., his huge Texas land claim, 423. 
 
 Boston and Albany Railroad, 658. 
 
 Boston Gaslight Co., 448. 
 
 Boston, Hartford and Erie Railroad, 563. 
 
 Boston and Maine Railroad, 442, 448, 659, 718. 
 
 Boston Manufacturing Co., 442. 
 
 Boston and Providence Railroad, 442. 
 
 Boston Water Power Co., 448. 
 
 Bowie, James, 417. 
 
 Bowie, John J., 338, 382-384. 
 
 Boycott, declared illegal, 689, 692, 729. 
 
 Boyd, Gordon D., 389. 
 
 Brahan, John, Gen., 389. 
 
 Bradbury, James Ware, cited, 478-479. 
 
 Bradford, William, 124. 
 
 Bradley, Charles, cited, 523-524. 
 
 Bradley, Joseph P., appointed Associate Justice, Supreme Court of 
 U. S., 517; service as a corporation attorney, 518-524; Union Pa- 
 cific Railroad decision, 547; 551, 555, 569, 576; succeeded by Justice 
 Shiras, 594. 
 
 Brady, Anthony N., 748, 758-759, 762. 
 
 Brewer, David, J., appointed Associate Justice, Supreme Court of 
 U. S., 591 ; previous career, 591 ; Military Wagon Roads decision, 
 602-603 ; remarkable doctrine laid down by him, 603 ; 605 ; Des 
 Moines Navigation and Railway decision, 605-607; 608; decision 
 in Camou case, 608-611; decision in Debs case, 624-625; decision 
 in railroad freight rate case, 637 ; 639, 666, 678, 683 ; doctrine of 
 "transitory risk," 684; succeeded by Justice Hughes, 695, 739. 
 
 Bribery and corruption, 18-24, 34-43, 75, 131, 148, 155-156, i73-*74, 
 186-190, 215-217, 233, 242, 255, 258, 259, 262-264, 269, 283, 293-294, 
 326-333, 334, 340, 343, 372-390, 421, 425-426, 430, 439, 45<>, 454, 460, 
 466, 490-492, 499-500, 502, 512^-513, 520, 525, 530, 537, 542, 545- 
 546, 563, 564, 567-570, 572-574, 575-576, 587, 596, 599, 605-606, 612,
 
 INDEX 791 
 
 627-628, 630-632, 681, 698, 712, 730-731, 746, 755, 76o, 763. (See 
 also, Legislative corruption, and Congress, bribery in.) 
 
 Broderick, David C, 501-502. 
 
 Brooke, Roger, 359. 
 
 Brooks, Judge, cited, 279. 
 
 Brown, Ethan A., 346. 
 
 Brown, Henry B., appointed Associate Justice, Supreme Court of U. 
 S., 591 ; his previous record as a corporation pleader, 592-594 ; 
 dissents in income-tax decision, 617; 625; dissents in railroad 
 freight decision, 636; delivers decision in Arago case, 637; suc- 
 ceeded by Justice Moody, 658. Also, 684. 
 
 Brown, John Bundy, 479. 
 
 Brown, Philip, 479. 
 
 Browning, Louisa, 362. 
 
 Brush Electric Illuminating Co., 747. 
 
 Bryan, William J., cited, 764-766, 772-773. 
 
 Bryant, William Cullen, 354. 
 
 Byrn, Michael, 40. 
 
 Buchanan, Andrew, 361. 
 
 Buchanan, James, President, 472-477, 504. 
 
 Buchanan, James A., 366-368. 
 
 Buffalo, Rochester and Pacific Railway, 626. 
 
 Burgess, Samuel, sea pirate captain, 34-35, 139. 
 
 Burnett, D. G., 411, 418. 
 
 Burns, David, 175. 
 
 Burr, Aaron, 41, 164-167, 186, 206, 215-216, 257. 
 
 Burr, Thaddeus, 163. 
 
 Butler, Charles, 531. 
 
 Butler, Marion, 647-648. 
 
 Cabell, Judge, cited, 279. 
 
 California, great land frauds in, 305, 407; numerous private land claims 
 validated, 440, 448, 449, 467, 501, 525, 552-554, 570, 571. (See also, 
 Railroad land grants.) 
 
 California and Oregon Land Company, 600. 
 
 Call, E. K., 321, 326, 335; cited, 345, 347^353- 
 
 Callaway, E. H., 775. 
 
 Callender, John Thompson, 142-143, 246. 
 
 Camden and Amboy Railroad, 518, 520, 521, 523. 
 
 Camden and Atlantic Railroad, 520. 
 
 Cameron, John L., 411, 418. 
 
 Campbell, Justice, dissents in Fremont case, 451 ; also in Larkin-Mis- 
 roon case, 464; his severe dissenting opinion in Dodge vs. Wool- 
 sey, 467-469; resigns, 480. Also, 536. 
 
 Canton (O.) Street Railway Co., 651. 
 
 Carlisle, John G., 407, 614, 714. 
 
 Cascade Mountain Wagon Road Co., 6po. 
 
 Cases, comprising principal of those cited or described (arranged al- 
 phabetically) : Adair vs. U. S., 692 ; Addyston Pipe and Steel 
 Company case, 638 ; Alexander vs. Morris, 105 ; Alleghany R'd and 
 Coal Co. vs. Casey, 169; Ames vs. Union Pacific Railway, 603; "An- 
 telope" case, 296-300; Arago case, 636-637; Armstrong vs. Morrill,
 
 792 INDEX 
 
 106; Arredondo case, 334-336; Astor case (Carver vs. Jackson ex 
 dem. Astor et a/.), 337; Baltimore and Ohio R'd Co. vs. Marshall, 
 269; Bank of North America vs. Fitzsimmons, 155; Beverly vs. 
 Smith, 67; Bonnet (Lessee of) vs. Devebaugh, 168; Bradstreet 
 vs. Huntington, 107; Brisco vs. Bank of the Commonwealth, 394; 
 Brown vs. Gilman, 258; McCulloh vs. Maryland, 293.; Camou vs. 
 U. S., 608-611; Carver vs. Jackson ex dem. Astor et al., 337; 
 Campbell vs. Galbreath, 168; Cassell, Admr., vs. Charles Carroll, 
 277; Cavazos vs. Trevino, 439; Chandler vs. Calumet and Hecla 
 Mining Co., 593; Charles River Bridge case, 396-397; Civil Rights 
 cases, 677 ; Chisholm vs. Georgia, 205 ; Chicago Water-Front case, 
 589 and 607; Cincinnati vs. Lessee of White, 120; Clark (Lessee 
 of) vs. Courtney, 101 ; Clyatt vs.' U. S., 678; Clymer vs. Dawkins, 
 98; Coleman vs. Dick and Pat, 30, 57; Commodities Clause cases, 
 674-675 ; Connolly vs. Union Sewer Pipe Co., 665 ; Consolidated 
 Gas Company case, 679-683 ; Danbury Hatters' case, 689-692 ; 
 Dartmouth College vs. Woodward, 287-292; Davidson vs. New 
 Orleans, 677; Dawson's Lessee vs. Godfrey, 254; Debs case, 623- 
 625; Delk case, 726-729; Dodge vs. Woolsey, 467; Dred Scott case, 
 469-477 ; Employers' Liability Act case, 693 ; and subsequent Act and 
 case, 780-781 ; Faxon vs. U. S., 610 ; Fernandez et al. vs. Peters, 
 344; Field et al. vs. Holland, 182; Fitzsimmons et al. vs. Ogden, 
 109; Fletcher vs. Peck, 259-260, 262-264, 283; Fremont case, 450- 
 452, 462; Gay vs. U. S., 715-719; Gilmore vs. North American 
 Land Co., 176, 178, 184, 191; Gooding slave trade case, 364-366; 
 Greenleaf's Lessee vs. Birth, 177 ; Groves vs. Slaughter, 400-403 ; 
 Hancock vs. Walsh, 424 ; Harriman vs. Interstate Commerce Com- 
 mission, 673; Harvey and Wife vs. Borden, 98; Hawkins' et al. 
 vs. Barney's Lessee, 102; Hepburn vs. Auld, 98; Huidekoper's 
 Lessee vs. Douglas, 249; Hunter vs. Martin, Fairfax's Devisee, 
 237, 240, 270-273, 278-281; Income Tax case, 616-617; Initiative 
 and Referendum case, 781-782; In re Lockwood, 677; Insular 
 cases, 648; Joint Traffic Association case, 638; King vs. Mullins, 
 185 ; " L'Amistad " case, 398-400 ; League vs. Atchison, 438 ; League 
 vs. De Young, 427; Legal Tender decision (Hepburn vs. Gris- 
 wold, 504^506; reversed, 524; Lewis et al. vs. Marshall et al., 
 101, 392; Lochner vs. N. Y., 675-676, 717; Livingston and Gilchrist 
 vs. Maryland Ins. Co., 273; Ludlow vs. Carpenter, 120; McCardle 
 case, 508; M'llvaine vs. Daniel Coxe's Lessee, 245-246; McKinney 
 vs. Saviego, 439; Marbury vs. Madison, 243-244; Marshall vs. 
 Baltimore and Ohio R'd, 512; Military Wagon Roads cases, 599- 
 603; Minnesota and North Carolina railroad rate cases, 672-673; 
 Mitchell case, 340-345; Moyer vs. Nichols, 686-687; Nebraska 
 maximum freight rate case, 637 ; New Jersey vs. Wilson, 283-284 ; 
 New York, State of, vs. George Clarke, 38; Non-resident bond- 
 holder tax case, 525 ; Northern Pacific Railway vs. Dixon, 684 ; 
 Northern Pacific Railway right of way decision, 672-673 ; North- 
 ern Securities Co. vs. U. S., 613, 668-670; Oneale vs. Thornton, 
 178; Palmer et al. vs. U. S., 455; Paschal vs. Perez, 420; Patterson 
 vs. Gaines and wife, 447; Pennsylvania vs. Tench Coxe, 168, 170; 
 Pettibone vs. Nichols, 686-687; "Plattsburg" case, 302-304; Plessy 
 vs, Ferguson, 677-678; Realty Co. vs. U* S., 715-719; Rose vs^
 
 INDEX 793 
 
 Himely, 257; Schulenberg vs. Harriman, 542-543, 578; Sinking 
 Fund case, 550-551; Smyth vs. Ames, 637; Soulard's Heirs vs. 
 U. S., 4Q4 ; Spencer vs. Southwick, 167 ; State Tax on Railway 
 Gross Receipts case, 525 ; State Tax Freight case, 524 ; Steiner 
 vs. Newbold, 170; Sugar Trust case (U. S. vs. E. C. Knight Co.), 
 634-635; Sutter case, 502-504; Taylor vs. Brown, 101, 254-255; 
 cited, 462; Telephone cases, 575-576; Tobacco Trust case, 778- 
 779; Township of Pine Grove vs. Talcott, 541; Trust cases, 671- 
 672; U. S. vs. Cities of Philadelphia and New Orleans, 436; U. S. 
 vs. Cruikshank, 677 ; U. S. vs. Garcia, 457 ; U. S. vs. Gomez, 462 ; 
 U. S. vs. Lifnantour, 459; U. S. vs. Rodman, 406; U. S. vs. 
 Peralta, 466; U. S. vs. Sutherland, 466; U. S. vs. Throckmorton, 
 55 2 -554; U. S. vs. Union Pacific R'd, 547; Van Ness vs. City of 
 Washington, 175, 193; Van Rennselaer vs. Kearney, 149; Ware 
 vs. Hylton, 205 ; " Warren " case, 369-370 ; Westfall vs. Singleton, 
 26; White vs. Jones, 24. 
 
 Caldwell, James, 165. 
 
 Calumet and Hecla Mining Co., 593-504. 
 
 Cambria Iron Co., 665-666. 
 
 Cambuston, Henry, 456. 
 
 Canada Southern Railway, 540, 612. 
 
 Canby, Israel T., 389. 
 
 Cardozp, Judge, 513. 
 
 Carnegie, Andrew, 666-668, 756. 
 
 Carnegie Steel Company, 665-666. 
 
 Carnes, Elizabeth, 183. 
 
 Carnes, J. P., 183. 
 
 Carroll, Charles, 126, 277, 360-362. 
 
 Carroll, Daniel, 109, 130, 175, 178. 
 
 Carter, James C., 743, 746. 
 
 Carter, Robert, 23, 27, 301. 
 
 Carter, Walter S., 739-741, 749, 751. 
 
 Carteret, Philip, 44. 
 
 Cass, Lewis, 341, 372-373, 376, 388, 462, 565. 
 
 Cassatt, A. J., 666. 
 
 Castenada, Juan, 553. 
 
 Castillero claim, 466. 
 
 Castro, Henri, 422-423, 424. 
 
 Castro, Manuel, 457-458. 
 
 Caswell, D. A., 489. 
 
 Catron, John, appointed Associate Justice, Supreme Court of U. S., 
 393, 402; Gen. Sam Houston reads letter concerning, 433-434; 436- 
 437, 447, 45i, 467, 469; in Dred Scott case, 475-476; his death, 
 514. 
 
 Cavazos land grant, 420, 437. 
 
 Central of Georgia Railway Co., 775-776. 
 
 Central Military Wagon Road Co., 600. , 
 
 Central Pacific R'd, 502, 507, 543, 572-573, 625, 640-646. 
 
 Central Railroad of New Jersey, 524, 624, 675. 
 
 Central Trust Co., 774-775. 
 
 Chabolla, Anastasio, 453. 
 
 Chambers, Thomas J., 411, 417.
 
 794 INDEX 
 
 Chambliss, P. C, 378. 
 
 Chandler, Senator, 659. 
 
 Chase, Salmon P., appointed Chief Justice, Supreme Court of U. S., 
 483 ; his prior career, associations and connections, 484 ; as a bank 
 attorney and director, 489-490, 492-493; as Secretary of the Treas- 
 ury, 493-496; Legal Tender decision, 504-506; decision in Mc- 
 Cardle case, 508-509; 517; death and estate, 526; criticism of, 527; 
 his successor, 528, 529, 532. 
 
 Chase, Samuel, 117, 130, 143; appointed Associate Justice, Supreme 
 Court of U. S., 150; his career previously, 150-151; impeachment 
 proceedings against, 246. 
 
 Chatfield, Levi S., cited, 37-48. 
 
 Chemical Bank, 217, 396. 
 
 Cheney, B. P., 623. 
 
 Chicago and Alton R'd, 673-674, 775. 
 
 Chesapeake and Ohio R'd, 723. 
 
 Chicago, Burlington and Quincy R'd, 578, 583-586, 625. 
 
 Chicago Dock Co., 578. 
 
 Chicago Gaslight and Coke Co., 588. 
 
 Chicago, Milwaukee and St. Paul R'd, 530, 629. 
 
 Chicago and Northwestern Railway, 578, 586. 
 
 Chicago, St. Louis and New Orleans R'd, 597. 
 
 Chicago, Rock Island and Pacific R'd, 546, 586, 775. 
 
 Chickasaw Indians, 375-399, etc. 
 
 Child Labor, origin of in American factories, 79-82. 
 
 Choate, Joseph H., 615, 673, 717, 743, 746. 
 
 Choteau, August, 339-340. 
 
 Church, John B., 107-109, 115, 142, 165-167, 169-170. 
 
 Church, Philip, 108-109. 
 
 Cincinnati, Hamilton and Dayton R'd, 538, 556, 611-614. 
 
 Cincinnati, New Orleans and Texas Pacific R'd, 636, 637. 
 
 Cincinnati, Richmond and Chicago R'd, 538. 
 
 Cincinnati Traction Co., 737. 
 
 Citizens' Alliance, 686. 
 
 City National Bank of Canton (O.), 651. 
 
 Civil War, 93, 301, 451-452, 480, 489, 495, 496, 513, 515. 
 
 Clark, Clarence D., 767, 771-772. 
 
 Clark, Walter, 617. 
 
 Clarke, George, 36-38, 107. 
 
 Clarke, George J. R, 321-322, 326, 335. 
 
 Classes, contrast of, in Colonial times, 65-68. 
 
 Cleveland, Grover, 571, 574, 578, 597, 611-614, 619-621, 627, 709, 710, 
 723, 740, 745, 778. 
 
 Cleveland and Mahoning R'd Co., 532. 
 
 Cleveland, Painesville and Ashtabula R'd, 537. 
 
 Cleveland and Pittsburg R'd, 493. 
 
 Cleveland Terminal and Valley Co., 653. 
 
 Cleveland and Toledo R'd, 531, 537. 
 
 Clifford, Fanny, 479. 
 
 Clifford, Nathan, appointed Associate Justice, Supreme Court of U. S., 
 477-478; his connections, 479; individuality, 480; concurs in Legal 
 Tender decision, 504; 507, 524-525; succeeded by Justice Gray, 561.
 
 INDEX 795 
 
 Clifford, W. H., 479. 
 
 Clinton, De Witt, no, 215-216, 251. 
 
 Clinton, George, no, 164-165. 
 
 Clymer, George, 78, 98, 153, 220. 
 
 Coal lands ; original appropriation of, in Pennsylvania, 169, 194-195 ; in 
 Wyoming, 768. 
 
 Coal Trust, 674-675. 
 
 Coburn, Abner, 479. 
 
 Coburn, Philander, 479. 
 
 Colden, Cadwallader, 37, 43-44. 
 
 Colorado, great land frauds in, 305^-449; vast Maxwell land claim 
 partially in, 565-567; tax levy of State pronounced unconstitutional, 
 673. 
 
 Colorado and Red River Land Co., 412. 
 
 Colorado and Southern R'd, 629. 
 
 Colton, David D., 572-573. 
 
 Columbia National Bank (of Pittsburg), 596. 
 
 Commercial Bank of Bristol, R. I., 583. 
 
 Commercial Bank of Cincinnati, 492. 
 
 Commercial Bank of Toledo, 531. 
 
 Commercial Cable Co., 735. 
 
 Conewago Canal Co., 180. 
 
 Congress, bribery in, 173-174, 334, 45O, 466, 490, 496-497, 52, 513, 530, 
 542, 545-546, 557, 563, 572-574, 575-576, 599, 641. 
 
 Confiscated estates (during the American Revolution), 90; evasion of 
 confiscatory laws, 94; 203-206, 207-208, 222, 232-236, 239-240, 245- 
 247, 270, 273, 278-280, 336-337, 362. 
 
 Conkling, Roscoe, appointed Associate Justice, Supreme Court of U. S., 
 but declines, 562. 
 
 Connecticut, land frauds in, Colonial times, 15-18; Colonial laws con- 
 cerning working class, 51; property qualification for voters, 87; 
 Legislature gives a large land grant, 163. 
 
 Connecticut Mutual Life Insurance Co., 592. 
 
 Connolly vs. Union Sewer Pipe Co., case of, 665. 
 
 Connotton Valley R'd, 651. 
 
 Continental Congress, 119, 220. 
 
 Constitutional Convention, Federal of the year 1787, 94, 101 ; economic 
 interests of many of its members detailed, 101-129; held in secrecy, 
 129; 147-150; origin of a famous clause, 155-157; 191, 195, 218, 223. 
 
 Constitution of the United States, its drafting and interpretations and 
 questions regarding, 85, 91, 96, 155-157, 160, 190-191, 206, 215, 218, 
 223, 231, 242, 243-244, 253, 259, 260, 262, 266, 279-281 ; Dartmouth 
 College case, 287-292; 357, 361, 394, 399-4O3, 469-477, 5O5, 508, 
 5-M, 525, 536, 614-617, 672-673, 674-679, 680-683, 685, 692, 7M-7I7. 
 
 Consolidated Gas Co. (of N. Y.), 629, 679-683. 747, 748. 
 
 Consolidated Telegraph and Electrical Subway Co., 745-746. 
 
 Consumers' League, 676. 
 
 Cooper, Peter, 494, 
 
 Corbin, A. R., 515. 
 
 Corning, Erastus, 563. 
 
 Correction, houses of, established, 59-62, 90-91. 
 
 Corry, William, 36-38.
 
 INDEX 
 
 Cosby, William, 35. 
 
 Coudert, Frederick R., 746. 
 
 Cowperthwaite, Joseph, 490. 
 
 Cox, Zachariah, 181-183. 
 
 Coxe, Daniel, 245. 
 
 Coxe, Tench, 167, 169, 179. 
 
 Cranch, William, 177, 260. 
 
 Crane, Murray, 658-659. 
 
 Crane, Zenas, 659. 
 
 Cravath, Paul D., 739, 740, 741, 745, 746, 756, 761. 
 
 Credit Mobilier Co., 513, 545-548. 
 
 Creek Indians, 341, 343, 375-379, etc. 
 
 Crimes, barbarous colonial punishments for, 62-64. 
 
 Crocker, Charles, 502, 564. 
 
 Crosby, Stephen, 428. 
 
 Crowninshield, George, 267. 
 
 Crowninshield, John, 267. 
 
 Cruger, Nicholas, 40, 116, 206-207, 214. 
 
 Culpeper, Lord, John, 25. 
 
 Culpeper, Lord Thomas, 25-26. 
 
 Curtis, Benjamin R., appointed Associate Justice, Supreme Court of 
 U. S., 440; his previous career and corporations he represented, 
 441-443; 446; resignation and lucrative practice, 448, 477; corpora- 
 tion attorney, 563. 
 
 Curtis, George, 409. 
 
 Gushing, Caleb, 426, 430-432, 529-530, 539. 
 
 Gushing, William, 133 ; appointed Associate Justice, Supreme Court of 
 U. S., 145; prior career, 145-146. Also, 205. 
 
 Cutler, Manasseh, 122-123. 
 
 Dakotas, North and South, 306. 
 
 Dallas, A. J., 177-180. 
 
 Dallas Military Wagon Road Co., 599. 
 
 Danbury Hatters' case, 689-692. 
 
 Danforth, Jonathan, 42. 
 
 Daniel, Peter V., appointed Associate Justice, Supreme Court of U. S., 
 
 406-407, 438, 447, 451, 463, 464-465, 467- 
 Dartmouth College case, 283, 286-293, 535. 
 Davis, Cushman K., 613. 
 Davis, David, appointed Associate Justice, Supreme Court of U. S., 
 
 497-499 ; dissents in Legal Tender case, 505 ; 524, 525, 541 ; resigns, 
 
 554. Also, 560. 
 Davis, Henry G., 567. 
 Davis, George, 334. 
 Davis, Wiley, 377. 
 Day, Luther, 650. 
 Day, William R., appointed Associate Justice, Supreme Court of U. S., 
 
 650; previous career, 650-657; 678, 683, 684, 694. 
 Day, William R., Jr., 650. 
 Dayton, Jonathan, 119-127, 130, 163, 173-174, 
 Dayton and Michigan Railroad, 538. 
 Debs, Eugene V., 618-625, 634-635, 665, 669, 71 5-
 
 INDEX 797 
 
 Debtors, imprisonment of, 64-65, 151. 
 
 Decisions (see Cases Cited). 
 
 Declaration of Independence, 83, 87, 88, 94, 150. 
 
 Delassus private land claim, 339, 405. 
 
 Delius, Godfrey, 33, 34. 
 
 Delk, case of E. M., described, 726-729. 
 
 Delaware County Bank, 497. 
 
 Delaware and Hudson R'd, 675. 
 
 Delaware, Lackawanna and Western R'd, 628-675. 
 
 Delaware and Raritan Canal Co., 521-522. 
 
 Delaware and Schuylkill Navigation Co., 180. 
 
 De Leon, Francisco, 419. 
 
 De Leon, Martin, 411, 419. 
 
 Denman, Matthias, 120-121. 
 
 Denver Pacific R'd Co., 548. 
 
 Denver and Rio Grande Railway Co., 566, 629. 
 
 Depew, Chauncey M., 756. 
 
 Des Moines Navigation and R'd Co., 513, 605-607. 
 
 Detroit Citizens' Street Railway Co., 593. 
 
 Dey, Anthony, 409. 
 
 Dickinson, John, 130. 
 
 Dickinson, Walter, 130. 
 
 Dinwiddie, Governor, 24, 28-29, 117. 
 
 Dixon, Chauncey A., 684. 
 
 Dongan, Governor, 33. 
 
 Dorchester Insurance Co., 648. 
 
 Dorsey, Thomas, 150-151. 
 
 Douglas, Stephen A., 474, 477, 523, 583. 
 
 Dred Scott case, 402, 437, 440; described in detail, 469-477, 480, 504. 
 
 Duane, William J., 371. 
 
 Du Bois, W. E. B., cited, 677. 
 
 Duer, William, 122-123. 
 
 Dunmore, Lord, 172. 
 
 Dutch West India Co., 31. 
 
 Duvall, Gabriel, appointed Associate Justice, Supreme Court of U. S., 
 
 277 ; 292, 362. 
 
 East India Co., 76, 78. 
 
 East Tennessee, Virginia and Georgia R'd, 718-719. 
 
 Eastern Oregon Land Co., 600. 
 
 Eastern R'd Co., 448, 612, 648. 
 
 Eaton, Sherburne Blake, 739. 
 
 Eckford, Henry, 333. 
 
 Edgar, John, 313-315- 
 
 Edison Electric Light Co., 739, 747- 
 
 Edmunds, George F., 560; appointed Associate Justice, Supreme Court 
 
 of U. S., but declines, 562. 
 
 Electric Light and Power Co. (of Canton, O.), 652. 
 Elkin, John P., 700. 
 Elkins Act, 672. 
 Elkins, John T., 566. 
 Elkins, Stephen B., 566-567, 612, 672.
 
 798 INDEX 
 
 Elkins, William L., 759. 
 
 Ellis, John B., cited, 527. 
 
 Ellis, Thomas G., 377. 
 
 Ellsworth, Oliver, 126, 130, 216; appointed Chief Justice, Supreme 
 Court of U. S. to succeed Jay, 219-220; his previous career, 221. 
 
 Emancipation Proclamation, 484. ' 
 
 Employers' Liability Act of 1906 declared unconstitutional, 693; subse- 
 quent Act upheld, 780, 781. 
 
 Entail and primogeniture, abolished, 95. 
 
 Equitable Life Assurance Society, 564, 733, 754-757, 762. 
 
 Erdman (Interstate Commerce Act), 692. 
 
 Erie Railway, 479, 513. 
 
 Essex Bank, 268. 
 
 Etting, Solomon, 361-362. 
 
 European and North American R'd, 511. 
 
 Evans, Capt. John R. N., 32. 
 
 Evarts, William N., 546. 
 
 Ewing, Nathaniel, 158. 
 
 Ewing, Thomas, 606. 
 
 Ewing, William L. E., 389. 
 
 Factories, conditions in, 78-82, 301, 444-446, 618-620, 659, 676, 717, 721- 
 722. 
 
 Fair, James G., 569. 
 
 Fairfax, Denny, 233-235, 239-240, 254, 255, 270, 273, 278-281, 336, 362. 
 
 Fairfax, Lord Thomas (also Fairfax estate), 24; grants 300,000 acres 
 to himself, 26 and 230; Thomas Marshall, superintendent of his 
 estate, 229-230, and John Marshall, attorney for Fairfax estate, 231 ; 
 estate confiscated, 232; State grants it to David Hunter, 234; con- 
 test for it, 234-235, 237-239, 242, 245, 254, 255, 270-273, 278-281; 
 336, 362. (See also for outcome, case of Hunter vs. Martin.) 
 
 Farmers' Alliance, 544. 
 
 Farmers' Bank (of Canton, O.), 651. 
 
 Farmers' Bank (of Reading, Pa.), 517. 
 
 Farmers' Deposit National Bank (of Pittsburg), 596. 
 
 Farmers' Loan and Trust Co., 600, 615. 
 
 Farwell, Charles B., 579-582. 
 
 Farwell, John V., 579-582. 
 
 Farwell, Walter, 581. 
 
 Fay, Samuel P. P., 260. 
 
 Federalist Party, 142, 147, 161, 202, 209; out of power, 224-227; 244, 286, 
 409. 
 
 Feudal conditions, in Virginia, 24-26, 232; in New York, 31-33, 34, 
 43-44, 51-52, 140-150. 
 
 Field, Cyrus W., 500. 
 
 Field, David Dudley, 499-500, 543, 639. 
 
 Field, Marshall, 586-588, 625. 
 
 Field, Stephen J., appointed Associate Justice, Supreme Court of 
 U. S., 497; antecedents and career previously, 499-502; did not 
 sit in Sutter case, 502-504; concurs in first Legal Tender decision, 
 504-506, 507, 514, 524-525; holds taxation of non-resident bond- 
 holders unconstitutional, 525; delivers decision in Schulenberg vs.
 
 INDEX 799 
 
 Harriman, 543; 551, 559; protects Leland Stanford, 567-570; viru- 
 lent attack by, 570-571; 576, 583; decision in Chicago water-front 
 case, 589 ; his old enemy, Judge Terry, shot and killed, 590-591 ; 
 603, 605; singular action in Central Pacific R'd case, 608; Income 
 Tax case, 617; 625, 639; death and will, 639-640. Also, 642, 643. 
 
 Fields, Andrew C, 631. 
 
 Fillmore, Millard, 440, 442. 
 
 First National Bank of Chicago, 583. 
 
 First National Bank (of N. Y.), 628. 
 
 First National Bank of Portland (Me.), 480. 
 
 First National Bank of Springfield (111.), 583. 
 
 Fischer's and Miller's huge Texas land grant, 422-423. 
 
 Fish, Stuyvesant, 628-629. 
 
 Fisheries, New England, in Colonial times, 71. 
 
 Fisk, Harvey, and Son, 756. 
 
 Fisk, James, Jr., 500, 515-516, 543, 548-549. 
 
 Fitch, John, 212. 
 
 Fitchburg R'd, 448, 659. 
 
 Fitzsimmons, Thomas, 115, 117, 153, 155, 163, 220. 
 
 Fleming, Judge, cited, 279-280. 
 
 Fletcher, Governor, his corruption, 32-35, 106, 108, 140. 
 
 Fletcher vs. Peck, case of, 259-260, 262-264, 283, 290, 291, 328. 
 
 Florida, immense land frauds in, 304-306, 321-328, 332-336, 340-344, 
 345, 34&-3S3, 405-406, 409, 434~435, 437, 449- 
 
 Floyd, Davis, 322, 324-325. 
 
 Foraker, Joseph B., 700, 736-738. 
 
 Forbes, John, 341, 342. 
 
 Forrest, Uriah, 178. 
 
 Foster, J. Warren, 704. 
 
 Foster, J. W., 593. 
 
 Fourteenth Amendment, status of Negroes under, 676-679; large 
 property rights under, 679-683. 
 
 Framingham and Lowell R'd, 612. 
 
 Franklin Bank of Cincinnati, 492. 
 
 Frelinghausen, Frederick T., 523-524. 
 
 Fremont case, 450-452, 458. 
 
 Fremont and Elkhorn R'd, 578. 
 
 Fremont, John C., 450-452. 
 
 French Revolution, influence in America, 200-202, 222, 225, 625. 
 
 Fries, John, 246. 
 
 Frontier Land and Cattle Co., 769. 
 
 Fuller, Melville W., appointed Chief Justice, Supreme Court of U. S., 
 578; sponsors and backers, 578-579; previous career, 582-589; 
 as a railroad and general corporation attorney, 582-589; 598; mili- 
 tary wagon-roads decision, 602-603 ; declares income tax unconsti- 
 tutional, 617; 625; decision in Justice Gray's favor, 626; 655, 656- 
 684, etc. ; death and estate, 694. Also, 695, 702. 
 
 Fulton, Robert, 212-215, 217, 295. 
 
 Gadsden Purchase, 609. 
 
 Gage, S. T., 568. 
 
 Gallatin, Albert, 106, 124, 126, 158, 307, 309-311, 313.
 
 8OO INDEX 
 
 Galveston Bay and Texas Land Co., 412, 417-418. 
 
 Galveston City Co., 421, 438. 
 
 Galveston R'd Co., 448. 
 
 Gandara, Manuel, 610. 
 
 Gantt, John M., 176. 
 
 Garcia, Rafael, 457; 
 
 Garfield, James A., 560. 
 
 Garrard, Sarah Bella, 330. 
 
 Garrard, William, 389. 
 
 Garesche, V. M., cited, 382-385, 387, 389. 
 
 Gates, John W., 756. 
 
 General Paper Co. (Paper Trust), 672. 
 
 General Managers' Association, 620-621. 
 
 Georgia Company, 182-184, 186-191, 264. 
 
 Georgia Mississippi Co., 182-184, 186-191, 258-259, 264. 
 
 Georgia, land seizures in, during colonial times, 45-46; entail and 
 primogeniture abolished in, 95 ; great land grants in, 102 ; legis- 
 lature of, bribed to give a vast land grant of about 35.000.000 acres, 
 I 55~ I 56 and 181-184; bribery of Legislature, 186-187; rescinds Yazoo 
 grants, 187-190; Marshall declares rescinding act unconstitutional, 
 262-264; 283; wresting of Indian lands in, 343, 357. 
 
 Gerry, Elbridge, 78, 85, 130, 147, 242. 
 
 Gerry, Elbridge T., 628. 
 
 Gibbs, Addison C, 601. 
 
 Gibson, John, 99. 
 
 Gilchrist, Malcolm, 377. 
 
 Gilman, Nicholas, 121, 126 
 
 Girard, Stephen, 172, 320, 436. 
 
 Goelet, Robert R., 320, 436. 
 
 Goelet family, 396. 
 
 Gooding, John, 362-365, 370. 
 
 Gonzales, Juan Jose, 461. 
 
 Gompers, Samuel, cited, 691. 
 
 Gomez, Vincente, 461-462. 
 
 Gordon, Lord A., 39. 
 
 Gorges, Sir Fernando, son and grandson, 19. 
 
 Gorham, Nathaniel, his enormous land purchase, 85-86; 109, 111-115, 
 130, 147. 
 
 Goudy, W. C., 578. 
 
 Gould, Edwin, 756. 
 
 Gould interests, control by, 629. 
 
 Gould, Jay, 441, 500, 513, 515-516, 53O, 538-539, 543, 545, 548-551, 556, 
 557, 559, 573, 5Qi, 712, 745, 768. 
 
 Graham, George, 124, 328, 329, 334, 381. 
 
 Grant colony in Texas, 418-419. 
 
 Grant, Hugh J., 743. 
 
 Grant, U. S., President, 514, 515-517, 529-53O, 539-54O, 593- 
 
 Grand Junction R'd and Depot Co., 448. 
 
 Grand Trunk Railway, 479. 
 
 Grannis, Richard, 632. 
 
 Grange movement, 544. 
 
 Gray, Horace, appointed Associate Justice, Supreme Court of.U. S.,
 
 INDEX 8O I 
 
 561 ; previous career and anecdotes, 561-562 ; 625 ; case affecting 
 
 interests of, 625-626; 639; death, 648. 
 Gray, William, 268, 625, 626. 
 Great Northern R'd, 613, 620, 668-^670, 730. 
 Greeley, Horace, 499. 
 Greenbriar Company, The, 27-30. 
 Greenback Party, 494. 
 
 Greenleaf, James, 176-178, 181-185, 191, 193, 259-260. 
 Gregory, Stephen S., 694. 
 Grenville, Lord, 208. 
 Gresham, Judge, 591. 
 Grier, Robert, appointed Associate Justice, Supreme Court of U. S., 
 
 409; 437, 439, 447, 475-476, 480; his resignation demanded, 504-505; 
 
 resigns, 505, 514. 
 Grimes, Hiram, 453. 
 Gfiswold, Burr, 563. 
 Griswold, George, 340, 409, 412. 
 Grosscup, Benjamin F., 622, 646. 
 Grosscup, Peter S., Judge, 622-623. 
 Groves vs. Slaughter, case of, 400-403. 
 Guarantee Trust Co., of New York, 622. 
 Gunn, James, 126, 183, 187. 
 Gwin, William, 377, 561. 
 
 Hager, John D., 519. 
 
 Hale, William G., 426, 429, 438. 
 
 Hamilton, Alexander, 41, 106-108, 114-117; his connections and eco- 
 nomic interests, 130-131, 142, 149; bank interests, 160-162, 163; 
 land speculations, 166-167; 186, 201, 206, 207, 216, 221, 222, 225; 
 influence upon John Marshall, 231. 
 
 Hamilton, Alexander (not the preceding), 322-324. 
 
 Hamilton, John C, 161. 
 
 Hampton, Wade, 183. 
 
 Hancock, John, 77-78, 147. 
 
 Hancock, Thomas, 77. 
 
 Hanna, Joshua, 493. 
 
 Hardeman, W. P., 581. 
 
 Harding, W. G. 597. 
 
 Hardy, Sallie E. Marshall, 272. 
 
 Harlan, James, 390-554. 
 
 Harlan, John M., 548; appointed Associate Justice, Supreme Court of 
 U. S., 554; previous career, 554-555; 576; dissents from Income-Tax 
 decision, 617; dissents in railroad case, 636; delivers Nebraska 
 maximum freight rate decision, 637; 638; decision as to Leland 
 Stanford estate, 642; 647-648. 657; Connolly vs. Union Sewer Pipe 
 Company decision, 665 ; 666, 673, 676, 678, 683, 684, 766, 777 ; pro- 
 tests against " Rule of Reason " decision in trust cases, 779 ; death, 
 
 779- 
 
 Harlan, John Marquard (son of preceding), 777. 
 Harlem Gaslight Co. (of N. Y.), 680. 
 Harlem Lighting Co., 746. 
 Harper, Robert Goodloe, 201, 260.
 
 802 INDEX 
 
 Harriman. E. H., 643, 646; his colossal frauds, 673-674, 683, 729; fur- 
 ther details of his vast frauds, 730-731 ; 733, 755, 757. 
 
 Harris, Isham G., 576. 
 
 Harris, W. P., 389. 
 
 Harrison, Benjamin, 597, 598. 
 
 Harrison, William Henry, 99, 315. 
 
 Havemeyer, H. O., 635, 656, 711-712. 
 
 Haven, George G., 628, 630. 
 
 Hayes, Rutherford B., 554-555, 560. 
 
 Haywood, William D., 685-687, 692. 
 
 Hazard, Rowland G., 735. 
 
 Hazlerigg, John T., case of, 723-724. 
 
 Hearst, William R., 700. 
 
 Henderson, Richard, 97. 
 
 Hendricks, William, 390. 
 
 Heney, Francis J., 731. 
 
 Hennessy, James M., case of, 723-724. 
 
 Hepburn vs. Griswold, case of, (see Legal Tender cases). 
 
 Herrin, W. F., 644, 645, 731. 
 
 Hewes, Joseph, 78. 
 
 Hewitson and Powers (or vice versa) land grant in Texas, 411, 426, 439. 
 
 Hill, David B., 627, 709, 713, 745. 
 
 Hill, Frederick Trevor, cited, 470-471. 
 
 Hill, James J., 613, 629, 668-670. 
 
 Hill, Sarah Althea (Mrs. Terry), 590. 
 
 Hite, Joist, 23-24, 233-235. 
 
 Hoar, George F., 506. 
 
 Hoboken Land and Improvement Co., 519-520. 
 
 Hoffman, Judge, 452-456, 460, 568. 
 
 Holland Company, 114-116, 165-171, 192-193; its frauds and seizures 
 yalidated by Supreme Court of U. S., 247-252, 329, 335. 
 
 Hollins, H. B., and Co., 623, 756. 
 
 Hollins, John, 366. 
 
 Holmes, Oliver Wendell, appointed Associate Justice, Supreme Court 
 of \J. S., 648; previous career, 648-650; 659; protests against North- 
 ern Securities decision, 669-670; 673, 676, 683, 684, 694. 
 
 Hood, Joseph L., 418. 
 
 Hook, William C, 773. 
 
 Hoops, Adam, 192. 
 
 Hopkins, Mark, 502. 
 
 Hopkins, Stephen, 78. 
 
 Hopton, Lord, 25-26. 
 
 Hornblower, William B., 626-627, 709, 739-740. 
 
 Houston, Sam, 424-425, 426-434, 439, 529. 
 
 Howard, George H., 457, 458, 552-553- 
 
 Howard, J. H., cited, 379. 
 
 Hoyt, Henry H., 595. 
 
 Hoyt, Jesse, 583. 
 
 Hubbard, Rollin B., 536-537. 
 
 Hudson Iron Co., 448. 
 
 Hughes, Charles E., appointed Associate Justice, Supreme Court of 
 U. S., 695, 739; antecedents and previous career, 739-766.
 
 INDEX 803 
 
 Hughes, Robert, 429, 438. 
 
 Hunt, Ward, appointed Associate Justice, Supreme Court of U. S., 
 
 525 ; succeeded by Justice Blatchford, 562. 
 Hunter, David, 234, 270-273. 
 
 Hunter vs. Martin, Fairfax's Devisee, case of, 237, 240, 270-273, 278-281. 
 Huntington, Collis P., 441, 502, 507, 551, 557, 558, 568; great corruption 
 
 by, 5/2-573 ; 640, 645. 
 Huston, Judge, cited, 168-169, 248. 
 Hyde, James Hazen, 733, 755, 762. 
 
 Idaho, 306. 
 
 Income Tax, 614-615, 645. 
 
 Income Tax decision, 616-617. 
 
 Illinois, extensive land frauds in, 314-316. 
 
 Illinois Central R'd, 513, 514, 564, 565, 578, 589, 607, 674, 777. 
 
 Illinois and Wabash Land Co., 171-175. 
 
 Indiana Banking Co.,_578. 
 
 Indians, slaves in colo'nial Virginia, 30, 56-57, 67 ; trade and land frauds 
 
 upon, 70, 97, 106, 109-113, 138, 142, 172 179, 249-250; debauching 
 
 and swindling of, 215, 250, 308, 319-320, 34^-342, 344, 375~388. 
 Industrial Congress, of U. S., 445. 
 Inglis, Samuel, 154. 
 Insurance scandals, 630-633. 
 Interstate Commerce Commission, 620, 636, 637, 641, 655, 659, 673, 674, 
 
 684, 730, 768, 776. 
 
 Iowa, 306; great land seizures by railroads under color of law, 605-607. 
 Iredell, James, appointed Associate Justice, Supreme Court of U. S., 
 
 147; previous career, 147-149; exchanges circuits with Wilson, 
 
 195 ; 204. 
 Iselin, Adrian, Jr., 628, 630. 
 
 Jackson, Andrew, 266, 269, 341, 357-358, 359, 371-372, 379, 383-385, 392- 
 393, 407, 490. 
 
 Jackson, Howell E., appointed Associate Justice, Supreme Court of 
 U. S., 597; prior career, 597-598; 615-616; dissents from Income 
 Tax decision, 617; succeeded by Justice Peckham, 626. 
 
 Jackson, John P., 518. 
 
 Jay, Augustus, 138. 
 
 Jay, Benjamin, 184. 
 
 Jay, John, his friends Le Roy and Bayard, 40, 106; connections of Jay 
 
 with Alexander Hamilton and Robert Morris, 108; 112, 117, 119, 
 
 130-131 ; becomes Chief Justice, Supreme Court of U. S., 137; his 
 
 land-owning ancestry and connections of wealth and power, 138- 
 
 142; represented the large landed class, 143-144; 151, 162, 195; goes 
 
 to England as special envoy, 197, and some of the reasons, 198- 
 
 208, also 205 ; his Treaty, 206-209, 210-211, 235-236, 241, 254, 271-273 ; 
 
 , elected Governor of New York, 212 ; formally resigns as Chief 
 
 Justice, 197-212, 218; his acts as Governor, 212-213, 216; 246, 296, 
 
 529. 
 
 Jay, Peter, 138. 
 
 Jefferson, Thomas, h> " Memoirs," cited, 66 ; 91 ; his " Notes " cited,
 
 804 INDEX 
 
 94; 95, 99; cited, 171-172; 199, 202, 224, 227; cited, 237; 243; cited, 
 
 255-2561 312. 
 
 Jerome, William Travers, 758-762. 
 Jimeno, Manuel, 464, 
 Johnson, Alba J., 735. 
 Johnson, Andrew, 514. 
 Johnson, Joseph, 252, 293. 
 Johnson, Ovid F., 426. 
 Johnson, Thomas, appointed Associate Justice, Supreme Court of U. S., 
 
 149- 
 Johnson, William, appointed Associate Justice, Supreme Court of U. S., 
 
 252; dissenting opinion in Fletcher vs. Peck case, 262, and in 
 
 Hunter vs. Martin, 272 ; 293, 358. 
 Johnson, Sir William, 39, 42-43. 
 Johnston, J. S., 318-319. 
 Joint Traffic Association, 638, 699. 
 Joline, Adrian, 763. 
 Jones, J. R., 313. 
 Judges, as stock or bondholders, 155, 292, 266-268, 532, 593, 622-023. 
 
 Kalamazoo and South Haven R'd, 548-551. 
 
 Kansas, 306. 
 
 Kansas Pacific R'd, 548-551. 
 
 Kean, John, 524. 
 
 Keene, James J., 729. 
 
 Kelly, William Preston, cited, 572. 
 
 Kelly, T. F., 726, 728. 
 
 Kennebec Co., 215. 
 
 Kennebec and Portland R'd, 479. 
 
 Kentucky, entail and primogeniture abolished in, 95 ; land frauds in, 
 
 97; land grants in, 101-102. 
 Kent, Chancellor, 40, 95, 291, 295. 
 Key, Anne, 360. 
 Key, Francis Scott, 360. 
 Kidd, Captain William, sea pirate, 34. 
 Knickerbocker Gaslight Co. (of N. Y.), 680. 
 Knickerbocker Trust Co., 622. 
 Knox, General Henry, 132. 
 
 Knox, Philander C, 650, 658, 666-668, 669, 773-774- 
 Knoxville and Ohio R'd, 556. 
 Kuhn, Loeb, and Co., 741, 756. 
 
 Labor Reform Party, 499. 
 
 Lacombe, E. Henry, 699-700, 763-764. 
 
 La Crosse and Milwaukee R'd, 512, 542. 
 
 Lafayette Bank of Cincinnati, 492, 497. 
 
 Laflore, Greenwood, 378. 
 
 La Follette, Robert M., cited, 701, 708. 
 
 Lahr case, 719-721. 
 
 L'Hommedieu, S. S., 538. 
 
 Lake, J. S., 426. 
 
 Lake Superior Ship Canal, R'd and Iron Co., 592-593-
 
 INDEX 805 
 
 Lamar, Joseph R., appointed Associate Justice, Supreme Court of 
 U. S., 774-776; previous career, 774-776; dissents from patents de- 
 cision, 782. 
 
 Lamar, Lucius Q. C., 544, 577; appointed Associate Justice, Supreme 
 Court of U. S., 571; career previously, 571-572; railroad stock- 
 holder and promoter of railroad measures, 572-574, 576; succeeded 
 by Justice Jackson, 597-774. 
 
 Lament, Daniel S., 613. 
 
 Land frauds, 15-46, 97-128, 138, 163-195, 221, 222-223, 247-252, 258-265, 
 283, 288, 304-317, 318-329, 331, 334, 337-353, 372-35O, 403-406, 409- 
 439, 449-467, 478, 495, 525-526, 552-554, 557, 565-567, 572-573, 579- 
 582, 59 2 -593, 599-604, 608-610. (See also specific States, Cases 
 Cited, and other parts of the index.) 
 
 Langdon, John, 78. 
 
 Lanier, Charles, 628, 630. 
 
 Lapsley, John W., 429-430, 435, 438, 611. 
 
 Larkin-Misroon land claims, 464. 
 
 Larkin, Thomas O., 453. 
 
 Lathrop, Gardiner, 732. 
 
 Laurens, Henry, 78. 
 
 La Vega land grant (in Texas), 430, 438. 
 
 La Vega, Thomas de La, 430. 
 
 Lawrence, Abbot, 442. 
 
 Lawrence, James, 448. 
 
 Lawrence, Stone and Company, 425. 
 
 Laws declared unconstitutional, 160, 223, 243-244, 467-468, 470-471, 505, 
 524, 536, 615-617, 633, 665, 675-678, 693. 
 
 League, H. H., 413. 
 
 League, Thomas M., 421, 425, 429, 439. 
 
 Lebanon Valley R'd, 517-518. 
 
 Ledyard, Lewis Cass, 565, 573. 
 
 Lee, Gen. .Henry, 169. 
 
 Leftwich, Robert, 411. 
 
 Legal Tender Act, 486-487, 496, 504-505, 514. 
 
 Legal Tender decision, 505-506; railroad interests contest it, 509-510, 
 517, and decision reversed, 523. 
 
 Legislative corruption, 155-156, 167, 215-217, 255, 258, 294, 340, 490- 
 492, 497, 499, 502, 512, 513, 520, 525, 530, 537-538, 542, 564, 567- 
 570, 587, 606, 612, 630-631, 641, 659, 681, 755, 760, 763. 
 
 Leggett, William, cited, 354. 
 
 Lehigh and Hudson R'd, 629. 
 
 Lehigh Valley R'd, 675. 
 
 Leiter, Levi Z., 586. 
 
 Le Roy, Herman, 38-39; intimate friend of John Jay, 40; origin of 
 large estate, 42-43; 115, 116, 206-207, 218-287. 
 
 Lauterbach, Edward, 746. 
 
 Lewis, Francis, 78. 
 
 Lewis, Nicholas, 27. 
 
 Lewisohn, Adolph, 756. 
 
 Limantour, Jose, Y., 455 ; frauds described in detail, 458-460, 
 
 Lincoln, Abraham, 474, 476, 477, 483, 497, 498-499, 52. 
 
 Lincoln Robert T., 578-579, 587.
 
 806 INDEX 
 
 Linton, Benjamin F., 384-385. 
 
 Livingston, Brockholst, appointed Associate Justice, Supreme Court of 
 
 U. S., 253; case affecting his personal interests, 273-277, 291, 296. 
 Livingston, Edward, 41, 320, 373, 436. 
 Livingston, John, 109-113. 
 Livingston, Peter Van Brugh, 140. 
 Livingston, Philip, 78, 149, 150. 
 
 Livingston, Robert, origin of large e?tate and fortune, 33-34; 106. 
 Livingston, Robert R. (son of preceding), 140. ; 
 
 Livingston, Robert R., Chancellor, 125; Jay's law partner, 140-141, 198, 
 
 210-212; his steamboat monopoly, 212-217, 295-296, 397. 
 Livingston, William, 106, 130, 139, 150, 253. 
 Lodge, Henry Cabot, 19; cited, 288; 658-660, 711-713, 767. 
 Longstrcet, William, 183-186. 
 Longworth, Nicholas, 121. 
 Loring, John F., 264. 
 Lorrillard, Jacob, 396. 
 
 Louisville and Nashville R'd, 556, 565, 718-722, 729, 733, 738, 775, 776. 
 Louisiana, 306; great land frauds in, 309-320, 331, 381-390, 435-436. 
 Louisiana Lottery Co., 703-708. 
 Louisiana Purchase, 283, 304 ; vast fraudulent land operations, 306, etc. ; 
 
 forging and antedating, 309-317, etc., 333~334, 449- 
 Loyal Co., The, 27-30, 57, 171, 329, 391. 
 Luco, Jose L., 456. 
 Luco, Juan M., 456. 
 Ludlow, Daniel, 120. 
 Ludlow, Israel, 121, 330. 
 Lurton, Horace H., appointed Associate Justice, Supreme Court of 
 
 U. S., 656, 695; his previous career and record, 718-719; decisions 
 
 as an inferior judge, 719-731; criticisms of, 731-732; in contest 
 
 for control of New York Life Insurance Company, 732-736; 737- 
 
 738, 777-778; decision in patents case, 782-783. 
 Lynch, William A., 651. 
 
 McAllister, Hall, 466. 
 
 McAllister, Matthew, 183. 
 
 McCardle case, 508-509. 
 
 McCardle, William H., 508-509. 
 
 McCarren, " Pat," 682. 
 
 McCarthy, Justin, cited, 198. 
 
 McClellan, George B., 682. 
 
 McComb, Alexander, 165. 
 
 McCormick, Cyrus, 545. 
 
 McCoy, Robert, 23-24, 223-224, 
 
 McCullogh, Eustace, 148. 
 
 McCullogh, Henry, 148. 
 
 McCullogh vs. State of Maryland, case of, 293, 780. 
 
 McCunn, Judge John H., impeached, 627, 632. 
 
 McCurdy, Richard A., 632. 
 
 McKenna, Joseph, appointed Associate Justice, Supreme Court of U. S., 
 640; previous career and record, 640-643; sundry protests against 
 his appointment, 643-646; 647-648, 665, 683, 684; dissents in Moyer-
 
 INDEX 807 
 
 Hay wood- Pettibone kidnapping case, 687; concurs in patents case, 
 782. 
 
 JVlrKinley, John, appointed to Supreme Court of U. S., 393; 402, 437. 
 
 McKinley, William, 640, 643, 656, 667-668, 772, 773. 
 
 McLane, John, appointed Associate Justice, Supreme Court of U. S., 
 330-331; 358, 394; opinion in slavery case (Groves vs. Slaughter), 
 402-403 ; 437, 438, 447. 
 
 McLane, Louis, 269, 512. 
 
 McLane, William, 330. 
 
 McNamara, James B., 687-688. 
 
 McNamara, John J., 687-688. 
 
 McNish, John, 341. 
 
 McPherson, Smith, 732. 
 
 Macfarlane, Wallace, cited, 699-700. 
 
 Mackay, Clarence H., 737. 
 
 Macy, William H., 545. 
 
 Madison, James, 99; cited, 218; 243, 277.- 
 
 Mad River and Lake Erie R'd, 498. 
 
 Mahoning National Bank of Youngstown (O.), 652. 
 
 Magee, Christopher, 596. 
 
 Maine, claimed by Sir Fernando Gorges, 19; vast land seizures in, 265; 
 alienation of its public lands, 478-479; land grants to railroads, 511. 
 
 Maine Central R'd, 479. 
 
 Maine Steamship Co., 480. 
 
 Maison Rouge claims rejected, 437. 
 
 Manhattan Co., Bank, 214-216. 
 
 Manhattan Electric Light Co., 746. 
 
 Manhattan Gaslight Co. (of N. Y.), 680. 
 
 Manhattan Railway Co. (of N. Y.), 500. 
 
 Manufacturing, native, origin and development of, 69, 70, 75-76, 78-82, 
 217, 301. 
 
 Manufacturers' National Bank (of Chicago), 583. 
 
 Marbury vs. Madison, case of, 243-244, 284. 
 
 Marbury, William, 243. 
 
 Marietta and Georgia Railway Co., 774, 
 
 Marine Insurance Co., 361. 
 
 Marquette and Ontonagan R'd, 592. 
 
 Marshall, Alexander J., 269, 512. 
 
 Marshall, Benjamin, 340. 
 
 Marshall, Humphrey, 101, 391-392. 
 
 Marshall, James Markham, 235, 271-273. 
 
 Marshall, John, 101, 169, 178, 214, 217, 224; appointed Chief Justice, 
 Supreme Court of U. S., 227 ; previous career, 228-231 ; in the 
 Virginia Legislature, 231; attorney for the Fairfax estate, 231-234; 
 advances doctrine of acquiescence, 233-234; defends Jay's Treaty, 
 236; he and brother buy Denny Fairfax's claim to confiscated 
 Fairfax estate, 238-239; his dominating personality, 241-242; de- 
 cision in Marbury vs. Madison, 243-244; validates Holland Co.'s 
 frauds, 250-251; decision in M'llvaine vs. Coxe's Lessee, 253-254; 
 legalizes land seizures, 254-255; juridical dictatorship, 256-257, 261, 
 265-266; declares Georgia rescinding act in great Yazoo grant of 
 35,000,000 acres unconstitutional, 202; case involving Fairfax estate
 
 808 INDEX 
 
 decided favorably to Marshall and brother, 270-273; as a slave- 
 holder and landed estate owner, 272 and 301 ; decides a case in 
 favor of Associate Justice Brockholst Livingston, 277 ; High Vir- 
 ginia Court of Appeals refuses obedience to Fairfax decision, 279- 
 280; Story reaffirms decision, 281; Dartmouth College decision, 
 286-293 ; legalizes slave traffic, 296-300 ; validates the huge Arre- 
 dondo claim, 334-336, and other land claims, 339-340; also validates 
 immense Mitchell land claim, 340-344; his death, 353-354. Also, 
 355, 357, 362, 391, 393, 397, 400, 403, 4<>5, 421, 422, 462, 529, 535, 600, 
 607, 780. 
 
 Marshall, Thomas (father of John), 229-230. 
 
 Martin, Edward, 600. 
 
 Martin, George W., 376-377. 
 
 Martin, Luther, cited, 95, 129. 
 
 Martin, Thomas Bryant, 26, 230, 233, 234, 271. 
 
 Maryland, estates in colonial times, 22; colonial laws on the working 
 class, 54-56; property qualifications for voters, 86-87. 
 
 Maryland Insurance Co., 273, 275. 
 
 Mason, Capt. John, 18-19. 
 
 Mason, Gen. John T., 409, 412, 413, 414, 417. 
 
 Massachusetts, Puritan laws on land frauds, 15, 31 ; early laws dealing 
 with servants and laborers, 48-50; establishment of workhouses, 60; 
 barbarous punishment for crimes, 62-64; convention of deputies, 
 79; convention of 1780, 185; property qualifications for voters, 85, 
 87, 261, 290-291; convention of 1788, 132, 147; "insurrection" in, 
 146; bank charters in, 267, 269; convention of 1820, 261, 290, 291. 
 
 Massillon Valley Coal Co., 652. 
 
 Matteson, Orasmus B., 513. 
 
 Matthews, Stanley, 544; appointed Associate Justice, Supreme Court 
 of U. S., 556 ; opposition to, 556 ; as a railroad attorney, 556-557 ; 
 promoter of Texas Pacific railway measures, 557; denounced as a 
 railroad tool, 557-559; severe contest over appointment, 559-560; 
 confirmed, 560; 565, 571-574, 576. 
 
 Maxwell Land Grant Co., 566. 
 
 Maxwell, L. B., 565-567. 
 
 Maxwell private land claim of nearly 2,000,000 acres validated, 565-567. 
 
 Mellen, Charles S., 753. 
 
 Mechanics' Bank (of N. Y.), 396. 
 
 Menard, Michael B., 421, 425, 430. 
 
 Mercantile Bank, 161, 627. 
 
 Mercantile Trust Co., 754. 
 
 Mercer, Charles Fenton, 422-424. 
 
 Merchants' Bank (of N. Y.), 216, 221, 396. 
 
 Merchants' Bank of Salem, 267-269, 291. 
 
 Merchants' Loan and Trust Co., 694. 
 
 Merchants' National Bank of Chicago, 583. 
 
 Meredith, Elizabeth, 153. 
 
 Meredith, Reese, 153. 
 
 Meredith, Samuel, 153-154. 
 
 Mesilla Valley, 449, 608-610. 
 
 Metropolitan Gaslight Co. (of N. Y.), 680. . 
 
 Metropolitan National Bank (o'f Chicago), 583.
 
 INDEX 809 
 
 Metropolitan Securities Co. (of N. Y.), 759, 762. 
 
 Metropolitan Street Railway Co. (of N. Y.), 612, 683, 758, 764. 
 
 Metropolitan Telephone Co. (of N. Y.), 745-747. 
 
 Mexican Cession, 406, 413-414, 449. 
 
 Mexican War, 449, 462. 
 
 Micheltorena, Acting Governor, 450, 459, 464, 466, 552-554. 
 
 Michigan Central R'd, 560-593. 
 
 Michigan, private land grants in, 308. 
 
 Michigan State Insurance Co., 592. 
 
 Mifflin, Thomas, 117, 179-180.. 
 
 Milam, Benjamin R., 411. 
 
 Milburn, John G., 735. 
 
 Military Wagon-Roads land grants, 599-603. 
 
 Miller, Samuel F., appointed Associate Justice, Supreme Court of U. S., 
 
 424, 497-499 ; dissents in Legal Tender case, 505 ; 525, 541 ; Union 
 
 Pacific R'd decision, 546-547; decision in Throckmorton case, 553- 
 
 554; 570-571, 576. 
 Milliken, Seth M., 735. 
 Mills, D. O., 564. 
 
 Milwaukee and Minnesota R'd, 530. 
 Mines, " accidents " in, 654-655. 
 Mine Owners' Association, 686. 
 
 Minnesota, 306; rate laws pronounced unconstitutional, 672-673. 
 Minnesota and Northwestern Railway, 563. 
 Miranda, Guadalupe, 565-567. 
 
 Miranda, Pedro,' his enormous land claim in Florida, 326, 333. 
 Mississippi, 306, 668; forging and antedating of land claims in, 309-310; 
 
 private land claim frauds, 331 ; extensive appropriation of valuable 
 
 Indian lands, 375-390, 409. 
 Mississippi Central R'd, 597. 
 Missouri, great land frauds in, 306, 329, 331-332, 338-340, 345-347, 403- 
 
 406, 435- 
 
 Missouri Compromise Act declared unconstitutional, 470-471. 
 Mitchell, Colin, 340. 
 Mitchell land claim of 1,200,000 acres in Florida, 288, 321 ; validated, 
 
 340-345, 347-353 ; case cited as precedent, 419, 420. 
 Mitchell, Robert, 340. 
 Moody, John, cited, 594, 701, 733, 736. 
 Moody, William H., appointed Associate Justice, Supreme Court of 
 
 U. S., 658; prior career, 658-659; 660; as Attorney-Gen'l of U. S., 
 
 cited, 671 ; 683, 727 ; resigns and is pensioned, 767. 
 Mooney, William, 83. 
 Moorcraft Ranch Co., 769. 
 Moore, John Bassett, cited, 475. 
 Moore, Sir Henry, 38-40, 42. 
 Moore, William H., 756. 
 
 Monongahela National Bank (of Pittsburg), 596. 
 Monroe, James, 237, 330, 331. 
 Morgan, Benjamin R., 169. 
 Morgan, Christopher, 563. 
 Morgan, David L., 654. 
 Morgan, John, 42.
 
 8lO INDEX 
 
 Morgan, J. Pierpont, 407-408, 452, 565, 613 ; bond scandal of 1895, 614 ; 
 great power of over railroads, 629; 667, 668-669; vast wealth and 
 P9wer of, 701, 733; contest for control of large insurance compa- 
 nies, 733-736, 73, 749-753, 756-757, 765, 776, 785- 
 
 Morgan, John T., 611. 
 
 Morrill, Lot M., 479. 
 
 Morris Canal and Banking Co., 522. 
 
 Morris County Bank, 522. 
 
 Morris and Essex R'd, 520, 523. 
 
 Morris, Gouverneur, 104, 117, 131; his cpnnection with Bank of North 
 America, 153-157; cheats Robert Morris in land transaction, 192- 
 193; 198, 220, 292. 
 
 Morris, Lewis, 35-36, 104. 
 
 Morris, Mary, 337. 
 
 Morris, Robert, 78, 101 ; his enormous land transactions and land owner- 
 ship, also his career and connections, 104-106, 108-109; holdings 
 of 6,000,000 acres of land, 108; 114, 117, 119, 126, 130-131, 140, 142, 
 153, 161-163, 165-166, 169; he and associates get 9,000 lots in 
 Washington, D. C, 175-179; 180, 184-185; insolvent and jailed, 
 191-192. Also, 220, 235, 248. 
 
 Morris, Roger, 336-337. 
 
 Morrison, William, 313-315. 
 
 Morton, Joseph, 264. 
 
 Morton, Sir William, 25. 
 
 Morton, Levi P., 545-756. 
 
 Moyer, Charles H., 685^687, 692. 
 
 Muhl, Veronica, case of, 533-535. 
 
 Municipal Gaslight Co. (of N. Y.), 680. 
 
 Muse, George, 08. 
 
 Mussina, Jacob, 429, 438. 
 
 Mutual Benefit Insurance Co., 522. 
 
 Mutual Life Insurance Co., 628-629; enormous corruption by, 630-634; 
 683, 759, 762. 
 
 Nagle, David, 590-591. 
 
 Nashville, Chattanooga and St. Louis R'd, 775. 
 
 Nashville Company, 411, 412. 
 
 Nebraska, 306. 
 
 Negroes, recent decisions vs., 676-679 (see also Slavery). 
 
 Nelson, Samuel, appointed Associate Justice, Supreme Court of U. S., 
 
 409; 447, 456; decision in Dred Scott case, 460-476; concurs in 
 
 Legal Tender decision, 504-505; 507, 524, 525. 
 Nevada, 449. 
 
 Newark Lime and Cement Co., 522. 
 Newberry, J. S., 592. 
 
 New Brunswick Steamboat and Canal Co., 518. 
 New England Mississippi Co., 258, 265. 
 New England Trust Co., 651. 
 New England Workingmen's Association, 444. 
 New England Workingmen's Convention, 446. 
 New Hampshire, its appropriation by the Plymouth Company, 18-19;
 
 INDEX 8l I 
 
 establishment of houses of correction, 60, 90-91 ; property quali- 
 fications for voters, 87-88. 
 New Jersey, large feudal estates in, 31-32; Lords Proprietors of, 44; 
 
 139-140, 149; property qualifications for voters, 87. 
 New Jersey Mutual Life Insurance Co., 522. 
 New Jersey- R'd, 518. 
 
 New Jersey Railroad and Transportation Co., 519-520, 521-522. 
 New Jersey Zinc Co., 522. 
 
 New Mexico, validation of great Maxwell land claim in, 565-567. 
 New Netherlands (later New York), 31-32, 51. 
 New Orleans, Jackson and Great Northern R'd, 435. 
 New York, great feudal estates established in, 31-33; feudal conditions 
 
 in, 43-44 and 51; early laws on the working class, 51-52; property 
 
 qualifications for voters, 87 ; entail and primogeniture abolished in, 
 
 95 ; vast fraudulent land sales in, 164-167. 
 New York Board of Trade and Transportation, 558. 
 New York Central and Hudson River R'd, 500, 540, 562, 740, 749. 
 New York Connecting Railway, 752. 
 New York Genesee Land Co., 109-113. 
 New York and Harlem R'd, 540, 749. 
 New York Life Insurance Co., 564, 733-736, 740, 755, 757. 
 New York, New Haven and Hartford R'd, 620, 659, 718, 749, 750, 752, 
 
 754- 
 
 New York, New Haven and Boston R'd, 748-754. 
 New York, Ontario and Western R'd, 735. 
 New York and Port Chester R'd, 750-753. 
 .New York Telephone Co., 745. 
 Nicholson, Joseph, 307. 
 Nicholson, John, 104, 167, 169, 176-179; impeachment proceedings 
 
 against, 179; he resigns, 180; his vast estate, 181 and 193-195; 
 
 North American Land Co., 184-185 ; 191, 248. 
 Nixon, George A., 411, 417. 
 Nixon, John, 153. 
 Nixon, S. Frederick, 682. 
 Noe, James, 453. 
 Norfolk and Western R'd, 724. 
 Norton, N. L., 581. 
 
 North American Land Co., 106, 176, 178, 184-185, 191. 
 North American Trust and Banking Co., 562. 
 North Carolina, entail and primogeniture abolished in, 95; railroad rate 
 
 laws pronounced unconstitutional, 672. 
 Northern Indiana R'd, 331.. 
 Northern Pacific R'd, 479, 557, 604, 605, 613, 622, 629, 638, 646, 668-670, 
 
 684, 730. 
 
 Northern Securities Co., 613, 668-670, 674. 
 Northern Securities Co., decision, 668-670, 674* 
 Northwest Territory, 100, 125. 
 Northwestern Railway, 540. 
 Nourse, Joseph, 126. 
 Nunez, Sebastian, 453, 
 
 Odell, B. B., 682, 731. 
 Ogden, Thomas L., 193.
 
 812 
 
 INDEX 
 
 Ogden, Samuel, 114. 
 
 Ohio, the huge Symmes-Dayton grant in, and accompanying frauds, 
 119-128; the "Sufferers'" donation of 500,000 acres in, 163-164; 
 canal grants in, 330. 
 
 Ohio Company, 99, 122-124, 171. 
 
 Ohio Life Insurance and Trust Co., 532. 
 
 Ohio Mutual Life Insurance Co., 497. 
 
 Oliver, ' Ebenezer, 184. 
 
 Olney, Richard P., 612, 623-624. 
 
 Ord, Pacificus, 461-462. 
 
 Oregon Pacific R'd, 600-603. 
 
 Oregon, 306; great timber land frauds and operation of military wagon- 
 road companies, 590-603. 
 
 Oriental Bank (of Boston), 442. 
 
 Orr, Alexander E., 735. 
 
 Orton, Jesse F., cited, 683. 
 
 Osgood, Samuel, 154. 
 
 Pacific Mail Steamship Co., 459, 466, 530, 546. 
 
 Pacific Railroad of 'Missouri, 626. 
 
 Pachecho, Juan Perez, 453. 
 
 Page, Mann, 23. 
 
 Paine, Augustus G., 735. 
 
 Palmer, Joseph C, 455. 
 
 Pan Electric Telephone Co., 575-576. 
 
 Panton, Leslie and Co., 341-343. 
 
 Paper Trust (General Paper Co.), 672. 
 
 Parker, William C, 460. 
 
 Parsons, Frank, cited, 621. 
 
 Parsons, John E., 627, 634-635. 
 
 Paterson, Stephen Van Rennselaer, 149. 
 
 Paterson, William, appointed Associate Justice, Supreme Court of U. S., 
 
 149; his career and powerful connections, 149-150, 210, 253, 296. 
 Patterson, Robert, 121. 
 Patroons, The, 31-32, 47. 
 Payne, Henry B., 537, 612. 
 Pease, E. M., Governor, 423, 427. 
 Peck, John, 184, 259. 
 
 Peck, Judge, 328, 338-339 ; cited, 345-347 ; 403-405. 
 Peckham, Ruftis W. (Sr.), 627. 
 Peckham, Rufus W., 611 ; his previous career and connections, 626-634; 
 
 Joint Traffic Association decision, 638; Addyston Pipe and Steel 
 
 decision, 638; railroad rate laws pronounced unconstitutional, 673; 
 
 decision also declaring unconstitutional Chicago tax levy, 673 ; 
 
 Smelter Trust decision, 673 ; bakeshop workers' decision, 675-676 ; 
 
 Consolidated Gas decision, 681-682 ; 684 ; succeeded by Lurton, 695 ; 
 
 709; sugar bounty decision, 715, 736, 748. 
 Peckham, Wheeler H., brother of preceding, 626, 627, 681-682, 745, 746, 
 
 748. 
 
 Pedrodena claim, 466. 
 Pelt, William F., 749. 
 Pendleton, Edmund, 27-28, 57, 108, 391.
 
 INDEX 813 
 
 Pendleton, Nathaniel, 102, 186-187. 
 
 Perm, Thomas and Richard, get 130,000 for their " rights," 103. 
 
 Penn, William, his contract for settlement of Pennsylvania, 20; laws 
 during his governorship, 21, 43, 70. 
 
 Pennsylvania, laws and land frauds in settlement times, 20-22 ; Colonial 
 laws respecting the working class, 52-53 ; houses of correction es- 
 tablished, 60; Bill of Rights of, 83; importation of convicts in, 89; 
 penal laws of, 89-90; land seizures in, 103, 104, etc.; huge land 
 grabbing in, 169, 179, 194-195, 248-249. 
 
 Pennsylvania R'd, 509, 510, 518, 522, 525, 572, 612, 651, 666, 675, 751, 752. 
 
 Peonage, 678. 
 
 Peoples' Gaslight and Coke Co. (of Chicago), 588. 
 
 Peoples' Gaslight Co. (of Pittsburg), 595. 
 
 Peoples' Traction Co., 759. 
 
 Peralta claim, 466. 
 
 Peralta, Dominigo, 466. 
 
 Peralta, Vincente, 466. 
 
 Perkins, Frances, cited, 675-676. 
 
 Perkins, George W., 733, 765. 
 
 Perry, Andrew T., 389. 
 
 Peter's colony (Texas) grant, 422-423, 425, 426, 431-432, 529. 
 
 Pettigrew, R. F., 555, 614-615, 647-648. 
 
 Phelps, Oliver, his great land purchase, 86 (called the Phelps and Gor- 
 ham Purchase), 109, 111-115, 116. 
 
 Philadelphia Bank, 153. 
 
 Philadelphia and Reading R'd, 517, 775. 
 
 Philadelphia, Wilmington and Baltimore R'd, 612. 
 
 Phillips, Frederick and his son Adolphus, 34-35, 139, 337. 
 
 Phillips, John F., Judge, 732. 
 
 Philippine Islands, 648, 656. 
 
 Pico, Andreas, 453. 
 
 Pico, Acting Governor, 453, 454, 456-457, 466, 525. 
 
 Pico, Antonio Maria, 453. 
 
 Pickett, Martin, 101. 
 
 Pierce, Franklin, 474. 
 
 Pinckney, Charles C, 242. 
 
 Pittsburg, Bessemer and Lake Erie R'd, 666. 
 
 Pittsburg and Birmingham Traction Co., 666. 
 
 Pittsburg and Connellsville R'd, 595-5Q6. 
 
 Pittsburg, Fort Wayne and Chicago R'd, 510, 651, 666. 
 
 Pittsburg, Virginia and Charlestown Railway Co., 596. 
 
 Pittsburg and Steubenville R'd, 517. 
 
 Pitney, Henry C., 783-784. 
 
 Pitney, Mahlon, appointed Associate Justice, Supreme Court of U. S., 
 782; previous career, 782-783; opposition to appointment but con- 
 firmed, 783-785. 
 
 Platt, Thomas C, 564, 597. 
 
 Plattsburg case, 302-304. 
 
 Plymouth Company, 18, 265. 
 
 Polk, Tames K., 478. 
 
 Pollock, John C., Judge, 723. 
 
 Pond, Ashley, 592-593-
 
 814 INDEX 
 
 Poore, Ben Perley, cited, 442, 552. 
 Populist or People's Party, 494, 544, 613-614. 
 Portland Co., 479. 
 Portland and Kennebec R'd, 479. 
 Portland and Ogdensburg R'd, 479. 
 Portland, Saco and Portsmouth R'd, 479. 
 Portland Sugar Co., 479. 
 Porto Rico, 647-648. 
 Post, C. C. cited, 573. 
 
 Powers and Hewitson grant, (or vice-versa), 411, 426, 439. 
 Powder River Cattle Co., 769. 
 Principip Co., 93. 
 
 Prudential Life Insurance Co., 522. 
 Pueblo and Arkansas Valley Railway Co., 566. 
 Pulteney, Sir William, 115. 
 Pullman Co., 587. 
 
 Pullman, George M., 545, 587, 618-621, 625. 
 
 Pullman Workers' Strike, 618-621 ; decision as to " riot " damages, 777- 
 778. 
 
 Quay, Matthew S., 614-616, 700. 
 Quigg, Lemuel Ely, 614-616, 700. 
 
 Railroad " accidents " in cases of workers, 498, 533-535, 584-586, 595- 
 596, 653-654; enormous number injured and killed, 655-666. Also, 
 684-685, 721-722, 710-711, 770-771. 
 
 Railroad land grants, 429, 495, 502; huge total of grants, 511, 530, 543- 
 544, 557, 563, 572-573, 592, 638-639. 
 
 Railroads, 429, 435, 442, 479, 495-497, 498, 502, 507, 509, 510; growth 
 of railroad power, 511 and 528; corruption by, 512-514; 516, 517- 
 525, 528, 530-551, 555-56o, 563-566; railroad power in control, 
 574-575; 586, 592-593, 595-596, 600-603, 611-613; great railway 
 strike of 1894, 620-625; 626; control by a small group, 628-630; 639, 
 641-643, 648, 650-656, 659; railroad rate Acts unconstitutional, 672- 
 673; 673-674; doctrine of "transitory risk," 684; 718-734, 737, 748- 
 
 753, 773, 775- 
 Randall, Robert, 173-174. 
 Randolph, Edmund, 407. 
 Randolph, John, 183. 
 Rantoul, Robert, cited, 358^-359. 
 
 Reading, Pearson B., and his California land claim, 462-463, 503. 
 Recall of judges, 781-782. 
 Reid, John, 735. 
 Revolution, American, causes of described, 73, etc. ; great frauds and 
 
 jobbery during, 107; frauds on the soldiers of, 117-119, 124-125, 
 
 146 and 239-240; 231, 237, 245, 272. 
 Reynolds, J. N., 425-426. 
 Reynolds, Robert, 313-315. 
 Rhode Island, seizures of land in old, 15 ; Colonial laws on working 
 
 class, 51; establishment of pporhouses, 60; cruel punishment for 
 
 crimes, 63; property qualifications for voters, 87.
 
 INDEX 8l5 
 
 Richardson, G. F., 623. 
 
 Richardson, William A., 457-458, 552. 
 
 Rittenhouse, David, 180. 
 
 Riverside Canal Co., 570. 
 
 Riverside Land and Irrigation Co., 570. 
 
 Roane, Judge, cited, 240-241, 279. 
 
 Roberts, J. H., 582. 
 
 Robertson, Sterling C., 411. 
 
 Robeson, George F., 524. 
 
 Robinson, Douglas, 763. 
 
 Rockefeller, John D., 612. 
 
 Rockefeller, John D., Jr., 756. 
 
 Rockefeller, William, 612, 628-629, 683, 748. 
 
 Rogan, Charles, 423. 
 
 Rogers, Henry H., 628-629, 683. 
 
 Rome, Wate'rtown and Ogdensburg R'd, 740. 
 
 Roosevelt, Alice, 121. 
 
 Roosevelt, John, 165. 
 
 Roosevelt, Nicholas, 165. 
 
 Roosevelt, Theodore, 121, 643, 649, 650, 659, 660, 669, 673, 695, 696, 731, 
 
 736, 773- 
 
 Root, Elihu, 628, 683, 741, 746. 
 Rough Mountain Mining Co., 652. 
 Rutledge, John, appointed Associate Justice, Supreme Court of U. S., 
 
 144; resigns, 145; nominated Chief Justice to succeed Jay, 218; 
 
 nomination rejected by Senate, 219; his death, 219. 
 Ryan, Allan, 761. 
 Ryan, Thomas F., 683, 734, 741, 748, 755-756, 757~764- 
 
 Safety Appliance Act, 710-711. 
 
 Safety Electric Light and Power Co., 746. 
 
 Sage, Russell, 441, 530, 539, 545, 548-551, 558, 591, 745- 
 
 St. Clair, Governor Arthur, 120, 314-315, 330. 
 
 St. Clair, John, 314-315. 
 
 St. Clair, Murray, 314-315. 
 
 St. Louis and Iron Mountain R'd, 726. 
 
 St. Louis and San Francisco R'd, 623, 726. 
 
 St. Louis and Southwestern R'd, 629. 
 
 St. Louis, Vandalia and Terre Haute R'd, 586. 
 
 St. Mary's Falls Ship and Canal Co., 593-594- 
 
 Sanford, J. F. A., 469. 
 
 San Jacinto Tin Co., 570. 
 
 Santa Anna, General, 413, 608-611. 
 
 Sargent, Winthrop, 98-99. 
 
 Savage, John, 31, 98. 
 
 Sawyer, Lorenzo, 568, 602. 
 
 Schiff, Jacob H., 741, 756.. 
 
 Schuyler, David, 106, 107. 
 
 Schuyler, Elizabeth, 106. 
 
 Schuyler, George W., cited, 33, 107. 
 
 Schuyler, Peter, origin of great landed estate, 33-34, 106, 107. 
 
 Schuyler, General Phillip, 106, 149, 202.
 
 8l6 INDEX 
 
 Schuylkill and Susquehanna Navigation Co., 180. 
 
 Schwab, Charles M., 666-667, 756. 
 
 Scioto Co., 123-124. 
 
 Scott, Gustavus, 176. 
 
 Searight Cattle Co., 769. 
 
 Second National Bank (of Pittsburg), 596. 
 
 Selden, Dudley, 409, 412. 
 
 Seligman, J. and W., 756. 
 
 Selma and Gulf R'd, 435. 
 
 Seminole Indians and War, 341-343. 
 
 Semple, Charles D., 452. 
 
 Servis, Peter, 42. 
 
 Sessions, Lorenz B., 628, 632. 
 
 Seward, Clarence A., 563, 615. 
 
 Seward, Senator, cited, 472-473, 476; 563, 564. 
 
 Sewell, Joseph, 184. 
 
 Sharon, William, 590. 
 
 Sharp, Jacob, 499. 
 
 Shaw, Quincy A., 594. 
 
 Sherman Anti-Trust Act, 634, 662, 667, 668, 671 ; used against labor 
 unions, 689-692; 696, 730, 765-766, 782-783, 785-786. 
 
 Sherman, John, 487, 510, 556, 569. 
 
 Sherman, Roger, 78. 
 
 Shipbuilding Trust, 755. 
 
 Shipping Trust, 776. 
 
 Shiras, George, Jr., appointed Associate Justice, Supreme Court of 
 U. S., 594; previous career as railroad attorney, 595-596; his course 
 in Income Tax case, 616, 625; delivers decision in favor of rail- 
 roads, 636; 639; resigns, 650. Also, 655, 656; his decision in Voight 
 case reverted to, 657. 
 
 Sibley, John, 319. 
 
 Sioux City and Pacific R'd, 578. 
 
 Sioux City and St. Paul R'd, 560. 
 
 Slaughter vs. Groves (or vice versa), case of, 400-403. 
 
 Slaves and slaveholding, in Colonial Virginia, 22, 27, 30; in Colonial 
 South Carolina, 48; prohibited in Northwest Territory, 100; ques- 
 tion of in Federal Constitutional Convention, 218; also variously, 
 219, 226, 230, 233, 283 ; slave traffic legalized by Chief Justice Mar- 
 shall, 296-300; number of slaves in U. S., 300-301 ; slave trade, 
 303, 304, 362-365, 398; extension of slave power's domains, 304, 
 359, 390, 393; slaves held by law to be merchandise, 400-403; 
 slavery denounced by New England mill workers, 446 ; laws against 
 slavery declared unconstitutional, 470-472; extent of slave power 
 in 1850, 473. 
 
 Sloo, Thomas, Jr., 329. 
 
 Smelter Trust, 673. 
 
 Smith, Herbert Knox, cited, 598-604. 
 
 Smith, Samuel, 389. 
 
 Smith, Col. William, 32. 
 
 Smith, William, 172. 
 
 Smyth, John F., 627. 
 
 Somerset and Kennebec R'd, 479.
 
 INDEX 
 
 " Sons of Liberty," 82. 
 
 Soto, Josepha, 453. 
 
 Soulard, Antoine, 338-339, 403-404. 
 
 Soulard land claims, 338-339. 
 
 South Carolina, land seizures in, during settlement times, 45-46 ; property 
 qualifications for voters, 87; entail and primogeniture abolished 
 in, 95- 
 
 South Boston R'd, 648. 
 
 South Chicago Railway Co., 578. 
 
 Southern Express Co., 563. 
 
 Southern Pennsylvania R'd Co., 612-613. 
 
 Southern Railway Co., 737, 776. 
 
 Southern Michigan R'd, 531, 533-535- 
 
 Southern Pacific R'd, 547, 557, 568-5 70, 572-573, 604-605, 611, 640, 642, 
 646, 674, 7i8, 730-73L 
 
 Southwestern Railway Association, 574. 
 
 Sparks, W. A. J., 592. 
 
 Spanish-American War, 647. 
 
 Spencer, Eliphas, 429-430. 
 
 Speyer, James, 628-630. 
 
 Spooner, John C, 543, 578, 673. 
 
 Springfield and Mansfield R'd, 556. 
 
 Springvale Ditch Co., 769. 
 
 Standard Electrical Subway Co. (of N. Y.), 681. 
 
 Standard Oil Co., 537/558, 612, 615, 629-630, 683, 700, 701, 733, 737-738, 
 750, 755 ; " Rule of Reason " decision, 778-779, 783. 
 
 Stanford, Leland, 441, 502, 507, 551, 558, 564, 567-570, 605, 640-642, 645. 
 
 Stanton, Edmund M., 453, 455, 458; appointed Associate Justice, Su- 
 preme Court of U. S. and his death four days later, 517. 
 
 State Bank (of Mass.), 268. 
 
 State Bank of Ohio, 531. 
 
 Steamship Trust, 673. 
 
 Steel Trust, 597, 650, 652, 658, 666-669, 733, 773, 776, 783. 
 
 Steele, William H., 411, 418. 
 
 Steffens, Lincoln, cited, 596. 
 
 Stephen, George, 98. 
 
 Stetson, Francis Lynde, 614. 
 
 Stevens, Alexander H., 470-471. 
 
 Stevens, Benjamin, 389. 
 
 Stevens, Edwin A., 518-520, 523. 
 
 Stevens, Linton, 471. 
 
 Stevens, Thaddeus, cited, 486-487. 
 
 Stewart, A. T., 515. 
 
 Stillman, James, 748. 
 
 Stockton, John P., 523-524. 
 
 Stockton, Richard, 518. 
 
 Stockton, Robert F., 518. 
 
 Stoddert, Benjamin, 177-178. 
 
 Story, Joseph, attorney for claimants of great fraudulent Yazoo grants, 
 260; in Congress, 260; dines with Supreme Court judges while 
 case is under consideration, 260-261 ; his career, 261 ; wins in 
 Fletcher vs. Peck case (Yazoo frauds), 262-264; advocates property
 
 8l8 INDEX 
 
 qualification for voters, 261, 290-291 ; lobbies bank charters through 
 Massachusetts Legislature, 266-268; president of Merchants' Bank 
 of Salem, 268; appointed Associate Justice, Supreme Court of U. S., 
 269; decides claim to Fairfax estate in favor of Chief Justice 
 Marshall and brother, 272; his decision denounced, 278-280; re- 
 affirms its constitutional points, 281 ; attitude of toward negro 
 slavery, 301 ; decision in " Plattsburg " case, 302-304 ; decision in 
 Astor case, 337 ; 362 ; decision in Gooding slave trade case, 364-366 ; 
 decision in "Warren" case, 369-370; dissents in State bank case, 
 394-395 ; decision in " L'Amistad " case, 339 ; dissents in Groves 
 vs. Slaughter, 402; his death, 408. Also, 441. 
 
 Story, William, 261. 
 
 Story, William W., cited, 260-261, 268, 269. 
 
 Strikes, 358-359, 444-446, 618-625, 643, 685, 689-693. 
 
 Strong, William, appointed Associate Justice, Supreme Court of U. S., 
 517; previous career as a corporation attorney, 517-518; delivers 
 decision reversing first Legal Tender decision, 524; declares " State 
 Freight Tax" unconstitutional, 524; 548, 551; retires on a pension, 
 
 555- 
 
 Strother, George F., 389. 
 
 Suffrage, property qualification for voters, 85-88. 
 Sugar Trust, 627 ; decision of Supreme Court of U. S. in favor of, 634 ; 
 
 enormous customs frauds of, 635-636 and 711-712; 647, 656-657, 665, 
 
 670, 704, 708, 7U-7I4, 715, 783. 
 Sullivan, William, 264. 
 Sumner, W. H., 409. 
 Sutter case, 502-504. 
 Sutter, John A., 503. 
 Sutliff, Milton, 532, 534. 
 Swartwout, Samuel, 422. 
 Swayne, Charles, 699. 
 Swayne, Noah, appointed Associate Justice, Supreme Court of U. S., 
 
 497; his previous career, 496^-497; dissents from first Legal Tender 
 
 decision, 505 ; 524, 525 ; decision in railroad bond case, 541 ; resigns, 
 
 556. Also, 655. 
 Symmes, John Cleves, 119-124. 
 
 Taft, Henry W., 695. 
 
 Taft, William H., 656, 683; views and environment, 695-696; defense 
 of judiciary, 696-698; 702, 723, 736, 738, 753, 764-766, 767, 772- 
 
 774, 777, 782, 783- 
 
 Tammany Hall, 83, 202, 225, 422, 513, 627, 698, 751. 
 
 Taney, Roger B., 303-304, 321, 355 ; appointed Chief Justice, Supreme 
 Court of U. S., 359; ancestry, youth, environment and economic 
 interests, 359-360; elected to Maryland Senate, 360; Attorney 
 General of Maryland, 360; bank attorney, stockholder and director, 
 360; attorney for large capitalists and landowners, 361-362; de- 
 fends John Gooding, notorious slave trader, 362-365; case of the 
 "Warren," 366-370; appointed Attorney General of the U. S., 370- 
 371 ; Secretary of Treasury, 360, 371 ; great land frauds under his 
 administration, 372, 376-390; support of by the slave power, State 
 banks and land appropriators, 374; appointment as Chief Justice
 
 INDEX 
 
 confirmed, 391; decision in a State bank case, 394; Charles River 
 Bridge case decision, 396-397; opinion in Groves vs. Slaughter 
 holding negro slaves to be merchandise and declaring supremacy 
 of State rights, 402-403; validation of fraudulent private land 
 claims, 404-406; 409; Maison Rouge claim rejected, 437; effect of 
 decisions under, 440; decision in Fremont case, 451 ; 467; his course 
 in Dred Scott decision, 469-477 ; discredited, 480-481 ; his death, 
 482. Also, 529. 
 
 Tariff ("Wilson Bill"), 708-709, 711-714. 
 
 Taylor, Babcock and Co., 579-582. 
 
 Taylor, George, 78. 
 
 Taylor, John, 389. 
 
 Taylor, John K., 382. 
 
 Taylor, Lemuel, 366-368. 
 
 Taylor, Talbot J., 729. 
 
 Taylor, William, 389. 
 
 Teller, Henry M., cited, 647-648. 
 
 Tennessee, entail and primogeniture abolished in, 95. 
 
 Tennessee Coal and Iron Co., 597. 
 
 Tennessee Co., 182-184, 186, 191, 264. 
 
 Terra Haute and Peoria Railway Co., 650. 
 
 Terry, Judge David T., 501-502; shot and killed, 590-591. 
 
 Texas, immense land frauds in, 340; described at length, 409-439, 
 449; vast grants of lands to railroads, 511; how an aggregate of 
 3,000,000, acres were secured on one contract, 579-582. 
 
 " Texas Association," 423. 
 
 Texas Land and Immigration Co., 425. 
 
 Texas Pacific R'd, 543-544, 557, 572-573, 629, 636. 
 
 Texas Trading, Mining and Emigration Co., 425. 
 
 Thompson, Smith, 120-121 ; appointed Associate Justice, Supreme Court 
 of U. S., 295-296; 336; decision in Groves vs. Slaughter, 401. 
 
 Thorn, Frost, 411. 
 
 Throckmorton private land claim, 458, 552-554. 
 
 Thurman, Allan G., 532. 
 
 Thurston, John M., 770, 772. 
 
 Tilden, Samuel L., 555. 
 
 Timber and timber lands, more recent cases of thefts of, 543, 598-603, 
 647-648. 
 
 Tobacco Trust, 647, 663, 672, 683 ; " Rule of Reason " decision, 778-779, 
 
 783. 
 
 Todd, J., 99, 292. 
 Todd, William, appointed Associate Justice, Supreme Court of U. S., 
 
 253; 272, 274. 
 Toledo Bank, 535. 
 Toledo Insurance Co., 531. 
 Toledo, Peoria and Warsaw R'd, 479. 
 Toledo, St. Louis and Western R'd, 755. 
 Tompkins, Daniel D., 250, 267, 278. 
 
 Trade, Colonial frauds in, 70-71, 75, 77-79; later frauds, 274-276. 
 Traders' Bank (of Chicago), 583. 
 Treadwell, J. W., cited, 268-269. 
 Tremont Bank (of Boston), 442.
 
 82O INDEX 
 
 Trimble, -Justice, 331. 
 
 Trinity Church, 41. 
 
 Trumbull, Lyman, 623-624. 
 
 Trusts, 537, 558, 593-594, 612, 615, 624, 627, 628-630, 633-634, 635-636, 
 647-648, 650, 652, 661-664, 665, 666-669, 670, 671-675, 683, 701, 704, 
 708, 711, 714, 733, 755, 765-766, 776, 778-779, 783-786. 
 
 Tuttle, Lucius, 659. 
 
 Tweed, William M., and Tweed regime, 513. 
 
 Tyler, (Taney's biographer) cited, 360, 480-481. 
 
 Union Bank of Maryland, 360-361, 371. 
 Union National Bank of Chicago, 582. 
 Union Pacific R'd, 495, 513, 539, 544-552, 572-573, 599, 673-674, 729-731, 
 
 767-771, .773- 
 
 Union Traction Co. (of Chicago), 586. 
 Union Transportation Line, 518. 
 United Railways of New Jersey, 518-522. 
 United States Express Co., 563, 564, 657. 
 
 United Hatters' Union, 689-692. (See also Danbury Hatters' case.) 
 United States Illuminating Co., 746. 
 United States Light and Power Co., 747. 
 Untermeyer, Samuel, cited, 696-762. 
 Upper Mississippi Co., 182, etc., 264. 
 Usher, John, 19. 
 Utah, 449. 
 
 Vaca and Pena land claim, 464. 
 
 Vallee, Francois, 322. 
 
 Vallejo, M. G., 457-458. 
 
 Valley Bank (of Ohio), 532. 
 
 Van Buren, Martin, 393. 
 
 Van Courtlandt, Jacobus, 138-139. 
 
 Van Courtlandt, Stephanus, 138. 
 
 Vanderbilt, Commodore Cornelius, 295, 410, 441, 513. 
 
 Vanderbilt, Cornelius, 628, 630. 
 
 Vanderbilt interests, 625, 629, 658. 
 
 Vanderbilt, William H., 537-540, 558, 565, 612. 
 
 Van Devanter, Willis, appointed Associate Justice, Supreme Court of 
 U. S., 767; previous career and connections, 767-769; Artist case. 
 770-771; 772; Bryan's comments, 772-773; delivers decision up- 
 holding Employers' Liability Act, 780; concurs in patents decision, 
 
 782. 
 
 Van Ness, Marcia, 175. 
 
 Vanmeter, John, 23. 
 
 Van Rensselaer family, its great power, 32, 149-150. 
 
 Van Rensselaer, Kiliaen, his vast estate, 31. 
 
 Van Rensselaer, John, 149. 
 
 Van Rensselaer, Stephen, 149. 
 
 Van Rensselaer, Stephen (son of preceding), 149, 206, 212, 253^ 
 
 Vehlein, Joseph, 411, 418. 
 
 Vertrees, John J., 738. 
 
 Vest, Senator, 713.
 
 INDEX 821 
 
 Virginia, Colonial land laws and the fraudulent obtaining of great es- 
 tates, 22-31 ; Colonial laws regarding slaves, servants and laborers, 
 56-50; houses of correction and poorhouses established, 61-62; 
 estatv s confiscated during Revolution, 94 ; large land grants in, 98, 
 etc.; its corrupt courts give land grants to themselves, 158; ques- 
 tion of confiscated estates in, 207-208, 237-241, 278-281, etc.; land 
 seizures in, 255, 329; leading slave breeding State, 300-301. 
 
 Wabash and Erie Canal, 536. 
 
 Wabash R'd, 591, 629. 
 
 Wadsworth, Jeremiah, 107. 
 
 Waite, Richard (brother of Chief Justice Waite), 531, 534, 
 
 Waite, Monison I., appointed Chief Justice, Supreme Court of U. S., 
 528 ; his record, clients and attachments as a lawyer, 531-537 ; rail- 
 road direciior, 538; decisions under him as Chief Justice, 541-554; 
 556; validation of the huge Maxwell land claim in New Mexico 
 and Arizona owned largely by Stephen B. Elkins, 565-567 ; 570- 
 571 ; rushed in a dying state to sit in telephone cases, 575-576 ; his 
 death, 576-5;?. Also, 582, 685. 
 
 Wagner, Louis, 735. 
 
 Wales, Levin, 319, 320. 
 
 Walker, George, 183. 
 
 Walker, Robert J., 377, 409, 478, 513, 605-606. 
 
 Wall and Cortland St. Ferries R'd Co. (N. Y. City), 758-759, 761-762. 
 
 Walton, Robert, 183. 
 
 Ward, Jasper, 333. 
 
 Warner, Samuel, case of, 584-586. 
 
 Warren, Francis E., ytv, 771-772. 
 
 Washburn and Moen Manufacturing Co., 578. 
 
 Washington and Baltimore Turnpike Co., 176. 
 
 Washington, Bushrod, ^14-115, 152, 185; appointed Associate Justice, 
 Supreme Court of VJ. S., 222 ; studied under James Wilson, 223 ; 
 his wealth and powerful connections, 223-224 ; personal friend of 
 Marshall, 224; 247, -^61, 271, 277, 331. 
 
 Washington, George, gers a grant of 200,000 acres for himself and 
 other officers, 29-30, and 97; 99, 114, 117, 122-124, 129, 137, 142, 144, 
 145, 147, 149, 151-152, 163, 176, 178, 192, 197, 198, 207-208, 223, 236, 
 253, 407. 
 
 Washington, State of, 3(xV 
 
 Watrous, Judge John C., -125-432, 437-438, 439. 
 
 Watts, R. and J., 39. 
 
 Wayne, James Moore, Associate Justice, Supreme Court of U. S., 358, 
 437, 447, 462, 463 ; his death, 514. 
 
 Weber, Charles M., 453. 
 
 Webster, Daniel, 217-218, 287-292, 320, 342, 442-443. 
 
 Webster, Sidney, 683, 731. 
 
 Wells, E. M., 756. 
 
 Wells-Fargo Express Co., 5(^-564. 
 
 West, Nathaniel, Jr., 390. 
 
 Western Atlantic R'd, 718. 
 
 Western Federation of Mineis, 685-687. 
 
 Western Freight Railway Organization, 574.
 
 822 INDEX 
 
 Western Maryland R'd, 629. 
 Western Reserve, 163. 
 Weston, Nathan, 582. 
 
 West Virginia, land grants in, 106; land grabbing in, 184-185. 
 
 Wetmore, William, 258, 264. 
 
 Weyerhaeuser Timber Co., 604. 
 
 Wheeler, Judge R. T., 420, 421. 
 
 Wheeling and Lake Erie R'd, 629, 651-652. 
 
 Wheelock, Eleazer, 286. 
 
 Wheelock, E. L. R., cited, 418. 
 
 Wheelock, John, 286-287. 
 
 Whipple, William, 78. 
 
 White, Edward D., appointed Associate Justice, Supreme Court of 
 U. S., 611; dissents in Income Tax case, 617; 625, 666, 678, 684; 
 appointed Chief Justice, 695, 702; sketch of his previous career, 
 703-704; bitterly attacked after election as U. S. Senator, 704-708; 
 in the U. S. Senate, 708-710; his safety appliance amendment, 
 710-711; sugar tariff schedule, 711-713; sugar bounty Act, Supreme 
 Court's decision and White's connection, 714-719; 766, etc.; de- 
 nounces patents decision delivered by Justice Lurton, 782. 
 
 Whisky " Ring," 515. 
 
 White, Joseph M., 333. 
 
 Whitney, J. D., 593. 
 
 Whitney, William C, 612, 749, 759, 763. 
 
 Whitney, Stephen, 409-410, 412, 413. 
 
 Wickersham, George W., cited, 675, 777. 
 
 Willamette Valley and Cascade Mountain Road Co., 599-603. 
 
 Williams, George H., 529, 643. 
 
 Williams, Joel, 121. 
 
 Williams, Jonathan, 105. 
 
 Williams, Joseph L., 265, 425, 433~434- 
 
 Williams, Samuel M., 410-411, 413, 417-418, 425, 429. 
 
 Willinck, William, 115, 116, 161, 166. 
 
 Willing, Charles, 101, 105, 391-392. 
 
 Willing, Thomas, 106, 114, 153-155. 
 
 Wilson, Henry, cited, 300-301, 304. 
 
 Wilson, James, 105, 117, 130-131; appointed Associate Justice, Supreme 
 Court of U. S., 147; his previous and accompanying career, 151 ; his 
 Bank of North America transaction, 153-156; 162; his enormous 
 land operations, 162, 165, 167-175; prominent in the great Yazoo land 
 frauds, 181-184; 185, 190-191 ; evasion of arrest and his death, 195- 
 196. Also, 205, 215, 220, 223-224, 235, 2^8, 259, 292, etc. 
 
 Wilson, Joseph H., 570-571. 
 
 Winthrop, Thomas L., 184, 264-265. 
 
 Wirt, William, cited, 229. 
 
 Wisconsin, thefts of timber lands in, 543. (For further details ot 
 great appropriations of agricultural and timber lands in, see Russell 
 Sage, La Crosse and Milwaukee R'd, Bribery and Corruption, 
 Legislative Corruption, etc.) 
 
 Wise, Henry A., cited, 670. 
 
 Wolcott, Oliver, 216-217, 221. 
 
 Woman labor, origin of in American factories, 79-82, 442-445.
 
 INDEX 823 
 
 Wollman, Henry, cited, 775. 
 
 Wood, John, cited, 126. 
 
 Woodbury, John L., 41!. 
 
 Woodbury, Levi, 158, 347, 371, 372, 387, 388, 390; appointed Associate 
 
 Justice, Supreme Court of U. S., 408-409; death of, 440. 
 Woodruff, L. B., 412. 
 Woods, George L., 601. 
 Woods, William B., appointed Associate Justice, Supreme Court of 
 
 U. S., 556; previous career of, 556; "succeeded by Justice Lamar, 571. 
 Workhouses, established, 59-62. 
 Worcester and Nashua R'd, 658. 
 Wright, Carroll D., cited, 621. 
 Wright, Governor James, 45-46. 
 Wrought Iron Bridge Co., 652. 
 Wyatt, Dudley, 25. 
 Wyoming, seizures of land in by railroad and cattle companies, 768- 
 
 769. 
 Wyoming Cattle Co., 768-769. 
 
 Yazoo frauds colossal land area obtained by bribery, 155-160 and 
 181-184, 223, 242, 255, 258-264; companies get $4,950,000 indemnity, 
 264. Also, 328, 335. 
 
 Yeates, Judge, 155, 168. 
 
 Young, Samuel R., 531, 535, 537. 
 
 Yount, George C, 453. 
 
 Yturbide, Augustin De, 457. 
 
 Zavala, Lorenzo D., 411, 418.
 
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