Alexander Marshall, Plaintiff In Error v. the Baltimore and Ohio Railroad Company

• Decision Date: 01 December 1853
• Parties: ALEXANDER J. MARSHALL, PLAINTIFF IN ERROR, v. THE BALTIMORE AND OHIO RAILROAD COMPANY
• Court: U.S. Supreme Court

57 U.S. 314

16 How. 314

14 L.Ed. 953

ALEXANDER J. MARSHALL, PLAINTIFF IN ERROR, v. THE BALTIMORE AND OHIO RAILROAD COMPANY.

December Term, 1853

THIS case was brought up, by writ of error, from the Circuit Court of the United States for the District of Maryland.

Marshall, a citizen of Virginia, sued the Railroad Company, to recover the sum of fifty thousand dollars, which he alleged that they owed him under a special contract, for his services in obtaining a law from the Legislature of Virginia, granting to the company a right of way through Virginia to the Ohio River.

The declaration set out the special contract, and also contained a count for a quantum meruit.

The circumstances of the case are related in the opinion of the court.

Inasmuch as one of the instructions of the Circuit Court was that if 'the services of the plaintiff were to be of the character and description set forth in his letter to the president of the company, dated November 17th, 1846, and the paper therein inclosed' no 'action could be maintained on the contract,' it is proper, for future reference, that both of those papers should be inserted. They were as follows:

Letter from A. J. Marshall to L. McLane, 17th November, 1846.

WARRENTON, November 17.

DEAR SIR: In an interview with you a few days since, I promised

to submit in writing a plan, by which I thought your much desired 'right of way' through this State might be procured from our legislature. I herewith inclose my views on that subject, and shall respectfully await your reply.

In offering myself as the agent of your company to manage so delicate and important a trust, I am aware I lack that commanding reputation which of itself would point me out as best qualified for such a post. Of my qualification and fitness it is not for me to speak; and, in consequence of the absolute secrecy demanded, I cannot seek testimonials of my capacity, lest I should excite inquiry. If your judgment approves my scheme, it is probable you might get satisfactory information respecting me by a cautious conversation with John M. Gordon, A. B. Gordon, Dr. John H. Thomas, or Joseph C. Wilson, all of your city. Without impropriety, I may say for myself I have had considerable experience as a lobby member before the legislature of Virginia. For several winters 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.

I shall have to spend six or eight weeks in Richmond, next winter, to procure important amendments to the charter of the Rappahannock Company. This will furnish reason for my presence in Richmond.

There is an effort in progress to divide our county, to which we of Warrenton are violently hostile. This furnishes another reason for myself, and also for one or two other agents, to remain in the city of Richmond during the winter.

Col. Walden and myself are interested in large bodies of land in western Virginia, near which the track of your railroad will pass. This is an ostensible reason for our active interference. I live in a range of country whose representation ought to be entirely disinterested on this question of the 'right of way.' Notwithstanding which, I believe a plurality of our representatives have heretofore been in opposition. I know the influences that effected this, and am happy to say they will not exist next winter.

Edmund Broaddus, for many years a representative from Culpepper, a shrewd, intelligent man, influenced this result. Broaddus was a sort of prot eg e of the Richmond and James River whigs, was distinguished and promoted by them, and habitually acted with them. His place is now filled by Slaughter, a personal friend of mine. I should have little fear to carry this section of the State.

The proposed plan best speaks for itself; if you think it feasible there is no time to be lost. I hope to hear from you at your earliest leisure. With entire respect, I am your humble servant, &c.

A. J. MARSHALL.

I tax you with the postage, as I do not wish to be known as in correspondence.

Document accompanying the foregoing letter.

In explanation of the plan I wish to submit, it is necessary to indulge some latitude of remark on the causes which have heretofore thwarted the just pretensions of your company.

Richmond City, the Petersburg, Richmond, and Potomac Railroad, the James River Canal, and the Wheeling interests, acting in concert, have heretofore successfully combated 'the right of way.' These interests fall far short of a majority in the two branches of the Virginia legislature. There is no sufficient ground, in the numeric force of this antagonist interest, to discourage the hope of an eventual success. On an examination of their arguments, based either upon justice or expediency, I find nothing to challenge a conviction of right, or an assurance of high State policy. On the contrary, standing heretofore as a disinterested spectator of the struggle, I have condemned the emptiness and arrogance of their pretensions, and felt indignant at the success of their narrow, selfish, and bigoted policy.

I have observed no superiority of talent, no greater zeal, or power of advocacy in the opposition, than in favor of the 'right of way.' The success of a cause before our legislature, having neither justice, greater expediency, stronger advocacy, or greater numeric strength, is matter of just amazement to the defeated party. The elements of this success should be a subject of curious and deeply anxious investigation; for when the cause is known, a remedy or counteracting influence may be readily applied. I have no idea that any dishonorable measures or appliances (further than log-rolling may be one) have been used to defeat the 'right of way.' As to log-rolling, I am sorry to say it has grown into a system in our legislature. Members openly avow and act on it, and never conceal their bargain, except where publicity would jeopard success. No delegation are more skilful or less scrupulous at this game than our western right-of-way men; so, in that regard, there is a stand off. It seems to me the great secret of this success is the propinquity, the presence on the ground, of your opponents. The legislature sits in their midst. They exercise a vigilant, pressing, present out-of-door influence upon the members. If the capitol were located at Weston or Clarksburg, who would question success? The Richmond interest is ever present and ever pressing; her associates of the railroad and canal are at hand, and equally active. You have no counteracting influence, and hence the success and triumph of your opponents. If I am right in these views, your claims, resting alone on justice, sectional necessity, or even high State policy, will be urged in vain, and must become as mere sounding clamor in the hall, unless you meet your opponents with the weapons they use so successfully against yourselves. Experience shows that something beyond what you have heretofore done is necessary to success; and in this necessity the plan I have to submit has its origin.

The mass of the members in our legislature are a thoughtless, careless, light-hearted body of men, who come there for the 'per diem,' and to spend the 'per diem.' For a brief space they feel the importance and responsibility of their position. They soon, however, engage in idle pleasures, and, on all questions disconnected with their immediate constitutents, they become as wax, to be moulded by the most pressing influences. You need the vote of this careless mass, and if you adopt efficient means you can obtain it. I never saw a class of men more eminently kind and social in their intercourse. Through these qualities they may be approached and influenced to do any thing not positively wrong, or which will not affect prejudicially their immediate constituency. On this question of the 'right of way,' a decided majority of the members can vote either way without fear of their constituents. On this question, therefore, I consider the most active influences will ever be the most successful.

Before you can succeed, in my judgment, you must re enforce the 'right-of-way' members of the house with an active, interested, well-organized influence about the house. You must inspire your agents with an earnest, nay, an anxious wish for success. The rich reward of their labors must depend on success. Give them nothing if they fail—endow them richly if they succeed. This is, in brief space, the outline of my plans. Reason and justice are with you; an enlarged expediency favors your claim. You have able advocates, and the best of the argument; yet, with all these advantages, you have been defeated. I think I have pointed out the cause. Your opponents better understand the nature of the tribunal before which this vast interest is brought. They act on individuals of the body out of doors and in their chambers. Your adversaries are on the spot, and hover around the careless arbiters of the question in vigilant and efficient activity. The contest, as now waged, is most unequal. My plan would aim to place the 'right-of-way' members on an equality with their adversaries, by sending down a corps of agents, stimulated to an active partisanship by the strong lure of a high profit.

In considering the details of the plan, I would suggest that all practicable secrecy is desirable. It strikes me the company should have or know but one agent in the matter, and let that agent select the subagents from such quarters and classes, and in such numbers, as his discreet observation may dictate.

I contemplate the use of no improper means or appliances in the attainment of your purpose. My scheme is to surround the legislature with respectable and influential agents, whose persuasive arguments may influence the members to do you a naked act of justice. This is all. I require secrecy from motives of...