7 Cranch (11 U.S.) 603 (1813), argued 27–28 Feb. 1812, decided 15 Mar. 1813 by vote of 3 to 1; Story for the plurality, Johnson dissenting, Marshall, Washington, and Todd absent. Fairfax's Devisee was the prelude to the great constitutional confrontation between Virginia jurists and the United States Supreme Court that culminated in Martin v. Hunter's Lessee (1816). It implicated the politically sensitive questions of state wartime confiscation of Loyalist property, state obligations under the unpopular Jay Treaty of 1794, and the authority of the Supreme Court over decisions of state supreme courts under section 25 of the Judiciary Act of 1789. The Virginia Supreme Court of Appeals upheld title to property on the Northern Neck derived from state confiscation. On a writ of error, Justice Joseph Story, writing for himself and only two other justices, virtually voided the state confiscation act and upheld the claim derived from a Loyalist's title. On remand, the Virginia Supreme Court of Appeals refused to honor the mandate of the Supreme Court; it held section 25 unconstitutional; and Judge Spencer Roane denounced the “centripetal” tendencies of power to accumulate in the federal government. This set the stage for Martin v. Hunter's Lessee.
William M. Wiecek