History of the Supreme Court of the United States

Front matter

IShl

CORNELL

UNIVERSITY

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 searching inquiry; that around them has been created a myth, a fiction 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 discredits 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 needless to say, been created by the author. Good, bad or indifferent, they are all matters of record; there they lie in the archives awaiting the patient and sincere research of the

O 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 constitutes a standing exposure of the superficial, if not designedly 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 passions and gloze over the true causes and development of events, they have unfortunately had their influence in propagating confusion, falsehood, 'and, worst of all, popular submission to the ideas and conceptions demanded by the dom' inant class. But the day has even now dawned when such works are going to the rubbish heaps or. perhaps being regarded 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 o.f 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 antecedents, its establishment, its development, its successive personnel, 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 arcliives, and these are lost to the authentic search of the historian.

As will be seen, this work is not one of a routine biographical 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 narrative 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 subsisting to-day.

Palpably, a dominant class must have sorne supreme institution through which it can express: its consecutive demands and enforce its will, whether that institution be a king, a Parliament, 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 unappealable power, it has been able, with a marvelously adaptable flexibility, to transmute that will not merely into law but into action. Hence, tbg. narrative of that court inevitably becomes a history of the origin and progress of capitalism and

COrrespondinfyly of the f orrps in gnnVty antpprnpi'gtir: 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 corruption. That the rise and ever-expanding sway of the capitalist class have been accompanied by ceaseless fraud and bribery is overwhelmingly attested by the cumulative evi-

5 PREFACE

dence. But no one can read the proofs herein presented without 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 vtery Justices were the same who by their decisions gave to capitalists vast resources, or powers translatable 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, thati the Justices in question were not open to pecuniarily dishonest practices. From training, association, interest and prejudice, all absorbed in the radius of permeating class environment, a fixed state of mind results. Upoui conditions that the ruling class finds profitable to its aims,/ and advantageous to its power, are built codes of morality asl well as of law, which codes are but reflections and agencies ofl those all-potent class interests.

In the case of men whose minds are already permanently molded to such purposes, and whose character and station for- j 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 gratuitously, and class corruption appears as honest conviction because 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 submission 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 powerful individuals or corporations need occasion no undue comment. 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 completely, consistently and accurately the personnel of the Supreme 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 sincere appreciation.

. New York, January, 1912.

Contents

CHAPTER PAGE

^ Preface i

Conditions Preceding Its Establishment: The Acquisition OF the LargEjLanded Estates i;

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 Supreme Court of the United States was, nevertheless, the legatee, 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 remote 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 axiomatic. 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 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 organized, 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 indispensable 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 comprehensible 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 uninterruptedly. Long before the outbreak of the Revolution, society was divided into various classes and these into grades, sharply defined from one another in law, as well as by extent 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 land seizure by which the feudal barons had aggrandized themselves, and that system of fraud in trade by which European 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 clandestirfely using their authority to secure vast estates for themselves.

Fraud in Ancient Massachusetts.

Orthodox Puritan piety went hand in hind with the conmission of frauds, if the laws of the day shadow the conditions 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.^ 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.' The practices of the Puritan judiciary may be judged irom Section ix. Act of 1635, which prohibited judges interested in civic causes, or related to the parties at action, from giving judgment.'

In Rhode Island the principal officials and elders were either seizing land, or by theis official acts were awarding allotments to one another.*

The Connecticut Assembly was constantly passing laws directed 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.

2 Ibid.

3 "Ancient Charters and Laws of Massachusetts Bay, etc." Published By Order of the General Court, 1814.

*" Rhode Island Colonial Records, 1636-1663." Vols. I, II, etc., describe many instances.

forestalling frauds.^ A statute passed by the Connecticut General Court in May, 17 17, 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 Asserably.«

The preamble of another law, enacted in October, 1718, declared its purpose to be the preventing of unlawful entries, of vacant lands and the resulting alienations. The act recited^ the prevailing frauds, " whereby many persons have been greatly defrauded, great disorders occasioned, divers quarrels excited." The preamble went on to say that, because 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 hating a right and property in the lands, and without obtaining any legil conveyance ffom the corporation, had presumed 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.''

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

5 " Cohnecticut Laws; Public Statute Laws" (Edition of 1808), Vol. I: 434-435- - ' ',:»%f'

against those thus presuming to buy lands from the Indians, <ind the persons wronged could recover in court.'

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 appropriated 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 confirmed them as legal.^

In May, 1727, another measure was passed by the General Court of Connecticut : " An Act To Prevent Frauds, Quarrels, 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.^" 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,^^

These details as to how lands was appropriated in early settlement 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

11 Ihid., 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 consent of their wives. Heiresses must have been in slighter demand after the passage of this act.

l8 HISTORY 01'' THE SUPREME COURT

great wealth and potency. Between the methods here described, 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 other, 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 Gtovernor 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 Hampshire 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 previoiisly, 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.

Thi:eatened 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 iio,ooo in money — an offer repeated three or four times.^^ Allen claimed eight or nine hundred thousand

12 " Documents Relating to the Colonial History of the State of New York," Vol. IV: 673.

CONDITIONS PRECEDING ITS ESTABLISHMENT I9

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 improved 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 desperate 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. . . ."^^

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 171 5. 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.^*

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 received rich rewards. The claim descended to Gorges' grandson, 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

1* Lodge's " A Short History of the English Colonies in America," 402.

opening up the province to settlement; he, therefore, wisely turned over his deed to the governor and company of Massachusetts of which colony it remained a part until its creation as a State in 1820.^°

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 gentle character and unselfish in many respects, Penn did not, however, neglect to make ample provision for his personal fortune. 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 Pennsylv'ania.

On July II, 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 governor and proprietary, [Penn] by lot, reserveth ten to himself, which shall lie but in one place." ^* By this " condition an enormous private estate became vested in Penn and his descendants, and caused the greategt 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 ^' the Legislature of Pennsylvania

^5 Donaldson's " The Public Domain : Its History," etc., 38.

^8 With the litigation growing out of this condition, the Supreme Court of the United States was called upon to do some extensi-fe judicial 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- 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, although 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 emolument," 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 commonwealth. . . .""

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 contracts, 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.^" That such a law was adopted indicates its necessity.

Another act, passed in the same year, tells of frequent overmeasure in the survey of land " through the negligence, ignorance or frauds of the surveyors or chain-carriers, and many

^8 Carey and Bioren's Pennsylvania Laws, 1700-1770, Vol. II : 230- 231. This legislative resolution is further described later in this work. ^» Ibid., Yol I: 5.

surveys have thereby been made erroneous." ^^ It would appear 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 niore than 4,000 acres, with a qualifying 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 importation 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 ignored 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 Pennsylvania under Quaker rule may be gleaned from the laws. On February 7, 1700, thirteen acts were passed providing penalties for adultery, rape and various other sex crimes, bigamy, robbing and stealing, breaking 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.

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 bf granting leave to individuals 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 recognized, but all the rest are annulled." "

Vast Tracts Fraudulently Granted. '

The methods by which gre^t grants of the most valuable land in Virginia were obtained may be illustrated by the Vanmeter 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.^^ 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 Council 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 Hite and Robert M'Coy of Pennsylvania. On October I, 1731, Hite and M'Coy petitioned the Council: That they and their families and a hundred other families were desirous of removing tp Virginia, and prayed a separate grant of 100,000 acres of land. An " Order in Council " was graciously

-1 " The Revised Code of the Laws of Virginia," Vol. II, Appendix II (Land Laws, Edition of 1819) : p. 345- 22 Ibid.

entered, granting their petition: thus Hite and M'Coy were allowed to enter the full 140,000 acres.''^

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 issfiing 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."* The final settlement is not clear from the records.