Chief Justice John Marshall is known for his celebration of a strong national voice for the early Supreme Court, and so it is hardly surprising that we tend to overlook the philosophical cuckoo in his family nest. Not all Americans willingly conceded a monopoly in constitutional interpretation to the early nineteenth century Court. One of the most powerful challenges to the authority and method of the Supreme Court came from within Marshall's family, scattered across the frontier of Virginia and Kentucky.
Distant from the frontier's problems of economy and politics, the Court used a lace-cuff coastal jurisprudence of vested rights to overthrow the land laws of the backcountry, designed to assist settlers clearing and improving the land. Henry Clay warned that the judgments in Green v. Biddle,(1) overturning Kentucky land laws, threatened "the most tremendous effects of any ever delivered by a judicial tribunal."(2) Rhetorical insurrectionists accused the Court of imposing an alien jurisprudence, unsuited to the circumstances of ordinary men and local needs.
A fractious member of John Marshall's own family joined this levee en masse against the Court, campaigning for interpretive comity. Humphrey Marshall -- first cousin and brother-in-law to the Chief Justice, former Senator, newspaper editor, and oddly enough for a self-styled Federalist, a firebrand of republican rhetoric -- insisted that the Supreme Court should give weight to the constitutional views of popular bodies, including state legislatures, even be checked by popular means.
Cousin Humphrey lived a prevocative life, stubbornly persisting as a Federalist in Kentucky from the 1780s through the 1820s, even when Federalists were profoundly unpopular. He was a unionist, casting Kentucky's lot with the political consortium of the Atlantic coast states, despite the natural gaze of Kentucky down its watercourse to the Mississippi, New Orleans, and the Gulf of Mexico. He opposed the calls in the 1780s for Kentucky to declare unilateral independence from Virginia. He voted for ratification of the new federal Constitution in the Virginia Convention in 1788, despite Kentucky's anger that the federal government indifferently defended American navigation rights on the Mississippi, and he consented to the Jay Treaty in the United States Senate. He constantly denounced and opposed the schemes -- real and imagined -- of Wilkinson, Burr, and Harry Innes to involve Kentucky with the Spanish and French in the Mississippi Valley. Strangely enough for a dyed-in-the-wool Federalist,(3) one of Cousin Humphrey's most spirited adventures toward the end of his life was his attack upon the United States Supreme Court.
Sketching Cousin Humphrey's complaints may help us understand something of the political culture of the 1820s, and why John Marshall's view of a single hierarchical structure for the resolution of constitutional questions was seen as unattractive by so many Virginians and Kentuckians. It has been a tenet of faith in American constitutional law that John Marshall's method and logic were right -- that the Supreme Court has properly tried to enforce a monopoly of voice in constitutional matters and to establish the High Court's final power to measure the federal Constitution by its own lights, without indulgence of the contrary views of state courts or legislators. To those of us who have witnessed the renewed debate of the late twentieth century on how to balance the center against the periphery, and how to reconcile cooperative union with local desires for self-governing authority, the normative superiority of Nathan Dane, Joseph Story, and John Marshall may no longer seem self-evident. To those who have watched the Supreme Court spurn other guides to interpretation of the federal Constitution -- be it the customary international law of human rights, or state supreme courts' differing views of what rights are fundamental to republican government as witnessed by their own constitutions -- the federal Supreme Court's interpretive hermeticism is less attractive. The possibility of a constitutional comity, in which the Court seeks to generate consensus, and recognizes other law-speaking bodies as deserving weight, brings the voices of early Southern Republican writers back into earshot. The claims of Southern Republican writers were strong enough to attract even Cousin Humphrey, when Kentucky's own interests were at stake.
The immediate occasion for Humphrey Marshall's attack on the Court was the decision of Green v. Biddle, a challenge to the landholding system of Kentucky. Kentucky's laws provided compensation for settlers ejected from improved land when their title later proved to be defective. The constitutional battle derived from the tension between guaranteeing the proprietary rights of Virginia-based land claims in Kentucky, and aiding Kentucky settlers harried by uncertain titles.
The "Kentucky District of Virginia," as it was called, won independence and statehood in 1792. Virginia's charter claims ran to the Ohio River and the Mississippi, and the parent state consented to Kentucky's independence only after a long period of agitation in the west.(4) To promote economic growth and attract settlement despite the uncertainty generated by lingering Virginia claims, the Kentucky General Assembly early on created a remedy for settlers displaced from their land by absentee claimants. Kentucky statutes of 1797(5) and 1812(6) provided that settlers who had a colorable claim of land title could not be thrown off their homesteads by a legal action of ejectment or writ of right, unless they were paid for permanent improvements made to the land: the clearing of forest areas, the preparation of fields, and the construction of buildings. Kentucky's statutes also limited an ejected farmer's liability for prior use of the land. No rents or profits accrued until occupancy was challenged in court (under the 1797 statute) or a final judgment was entered (under the 1812 statute).
From Kentucky's point of view, strong policy supported these laws. Kentucky needed to settle the land, for prosperity and as a buffer against Indian activities. Land warrants had been issued profligately by Virginia before Kentucky's independence in exchange for military service and for purchase money. Kentucky inherited Virginia's complicated system of perfecting land title with innumerable technical requirements whose absence defeated a claim. Land warrants gave the right to claim an abstract quantity of land, but it was up to a warrantholder to stake his claim by "locating" the warrant on vacant acreage; he also had to make "entry" on the land, commission and record a private land survey, and gain a land patent. There was no public survey of plots, and warrants were issued far in excess of Kentucky's arable land. The hills and pasture land of Kentucky came to be "shingled" many times over by conflicting claims. Often land could be identified only by reference to what water course it lay upon, highly approximate distances, and vanished landmarks such as buffalo roads and comer trees. With poor survey and recording methods, it was only after the actual trial of contested claims, with viva voce testimony about the notoriety of landmarks in the neighborhood years before, that the superiority of one title over another could be established. Farmers would sensibly be reluctant to travel west and improve land when all their work might later go for naught.(7)
To create an incentive to settlement, Kentucky provided in the so-called "occupying claimant" laws that a displaced farmer who had a colorable claim to title should at least walk away with compensation for the improvements he had made to the land. This statute bore resemblance to Roman law,(8) and the Napoleonic Code.(9) But English common law was unrelievingly harsh. By English common law, as well as late eighteenth century Virginia common law, the superior titleholder regained possession of land without paying compensation for improvements, and with a full right to back rents and profits from the prior occupant's use.(10) Neither the English common law nor the Virginia rule had been designed with the particular problems of frontier Kentucky in mind.
The immediate controversy in Green v. Biddle arose from the compact Kentucky made with Virginia in 1789 as a condition of obtaining independence. Many Virginia families, including the Marshalls, made livelihoods trading in Kentucky land, and the chance that Virginia claims would be disregarded was unacceptable. Kentucky promised Virginia that
all private rights and interests of lands within the said district
[of Kentucky], derived from the laws of Virginia prior to such
separation, shall remain valid and secure under the laws of the
proposed state, and shall be determined by the laws now
existing in this state [of Virginia].(11)
In the three decades before Green v. Biddle was decided, Virginia never suggested that Kentucky's occupying claimant laws violated the compact. In Humphrey Marshall's view, as a rather good lawyer, the compact meant merely that land claims in Kentucky, derived from Virginia warrants not yet perfected with a patent, must be honored and permitted to mature. It did not mean that the remedies for conflicting claimants were frozen in time.
At least one warrant-holder did not agree. Virginian John Green brought suit against Kentucky resident Richard Biddle, arguing that the interstate compact voided Kentucky's laws requiring compensation for improvements. The 1789 common law of Virginia set Kentucky's future course, said Green, and forbade Kentucky's legislature from granting any relief to hardscrabble farmers.
What happened next was either a comedy of errors or feckless jurisprudence. The dispute was certified to John Marshall's Supreme Court in 1816 by a division of the federal circuit court in Kentucky, consisting of District Judge Harry Innes and Circuit Justice...