The Marshall Court’s First Dissent

“I concur in the decision given by the Court in this case, but there was a question suggested and commented on in the argument which has not been noticed by the Court, but which appears to me to merit some consideration.” —Justice William Johnson, 1805

Summary

In 1792, the Pennsylvania Land Act opened to sale all the unappropriated lands lying north of the Ohio River and west of the Allegheny River and Conewango Creek. Up to 400 acres of these lands were to be sold only to people who would “cultivate, improve and settle the same, or cause the same to be cultivated, improved and settled.” The Pennsylvania legislators hoped that this act would discourage land speculation in the region. Investors and land companies, called warrantees, however, quickly took advantage of a weakness in the law and used other names to purchase thousands of acres of land in western Pennsylvania. As time passed, the companies struggled to meet the two-year requirement set forth by the law and faced potentially losing their claim to the land. In addition, they also encountered conflicts with local Native Nations, making improvements to the land difficult. Over the years, adventurous settlers moved to the area, made minimal improvements, and argued that the land now belonged to them based on a piece of the 1792 act. The companies fought back and took their case to the Pennsylvania circuit court and then the Supreme Court. Chief Justice John Marshall issued the Court’s opinion in favor of the land companies explaining that the conflict with the Native Nations excused them from the two-year time limit on making improvements to the land. While Justice Johnson agreed in part with the majority opinion, he issued the first, although brief, dissent of the Marshall Court era, expressing a different view of the Court’s judicial function:

“It may appear singular that a deficiency, of a single day perhaps, should produce so material an alteration in the rights or situations of the warrantee. But the Legislature of Pennsylvania was fully competent to make what statutory provisions they thought proper upon the subject; and the court is no further responsible for the effect of the words which they had used to express their intent, than to endeavor to give a sensible and consistent operation to them in every case that can, occur.”

After issuing the dissent, Justice Johnson reported to President Jefferson:

“Some case soon occurred in which I differed from my Brethren, and I thought it a thing of Course to deliver my Opinion. But, during the rest of the Session I heard nothing but Lectures on the Indecency of Judges cutting at each other…”
(Letter from William Johnson to Thomas Jefferson (Dec. 10, 1822), microformed on The Thomas Jefferson Papers, Library of Congress Microfilm Series 1, Reel 53.)