Craig v. Radford

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Craig et. al. v. Radford
Seal of the United States Supreme Court.svg
Decided March 12, 1818
Full case name Craig et. al. v. Radford
Citations 16 U.S. 594 (more)
3 Wheat. 594, 4 L. Ed. 467
Decree affirmed with costs
Court membership
Chief Justice
John Marshall
Associate Justices
Bushrod Washington · William Johnson
Henry B. Livingston · Thomas Todd
Gabriel Duvall · Joseph Story
Case opinions
Majority Washington, joined by unanimous

Craig et. al. v. Radford, 16 U.S. (3 Wheat.) 594 (1818), is a United States Supreme Court decision delivered by Justice Bushrod Washington on March 12, 1818. The dispute rose from a suit in chancery to establish clear title to land which had been granted first to one party in 1774 and then again, in parts, to other parties in 1780. Radford won the suit in the Kentucky Circuit Court but Craig et al. appealed before the Supreme Court to reverse the lower court decree.

The arguments before the Supreme Court were delivered on an unspecified date during the 1817 term. The attorneys appearing for the appellant Craig et. al. were Mr. M.D. Hardin and Mr. Talbot. The attorney for the respondent John Radford was Mr. B. Hardin.[1]


Governor of the Colony of Virginia John Murray, 4th Earl of Dunmore (also known as Lord Dunmore), issued a land warrant to William Sutherland on January 24, 1774 per the Royal Proclamation of 1763. Sutherland received 1,000 acres of land located on the south side of the Ohio River about 30 miles below the mouth of the Scioto River. At that time the land was within Fincastle County, Virginia.[2]

A few months later, Hancock Taylor, a deputy surveyor for the county, began surveying the land with aide A. Hemptonstrall serving as his marker and chain carrier. Indians attacked and killed Taylor before he could complete the survey. Hemptonstrall recovered Taylor's field notes and returned them to the office of the principal surveyor William Preston on May 4, 1774. Preston, with a number of his surveyors dead or missing, recorded the survey from the surviving field notes.[3]

In 1776, Fincastle County was divided and the property came under the jurisdiction of Kentucky County, Virginia. Upon the commencement of the American Revolutionary War, loyalist Sutherland abandoned his home in Virginia for Orkney in northern Scotland. Craig and the other parties in the suit were issued their treasury warrants in 1780 and redeemed them for acreage which included the Sutherland tract. Their claims were surveyed by 1785 and land patents were issued prior to May 26, 1788. The Commonwealth of Virginia issued title for the 1,000 acres to Sutherland August 5, 1788.[3]:595-96

William Radford [c. 1759 - March 9, 1803(1803-03-09) (aged 43)] had served as lieutenant with the Continental Marines, was captured and imprisoned in Forton Prison near Portsmouth, England during the war. Afterwards, he settled in Richmond, Virginia and purchased thousands of acres of land for speculation, mostly in what became the Commonwealth of Kentucky.[4] On February 13, 1799, Radford bought Sutherland's 1,000 acre deed for $3,000.

Upon Radford's death four years later, his lands were divided among his six children. Son John Radford [(1785-05-27)May 27, 1785 - April 15, 1817(1817-04-15) (aged 31)] inherited the Sutherland tract and relocated his family near Maysville, Kentucky in 1808 to manage his properties. The Sutherland land dispute moved through the courts with John Radford winning at each level.[5]


Most of the background was admitted as fact by both parties in the suit. Craig et al. disputed the following:

  1. Deputy surveyor Taylor did not hold the land warrant and so had no authority to execute his survey.[3]:596
  2. There was no physical proof of Taylor's survey and, even if so, Hemptonstrall testified the survey was begun but not completed.[3]:596
  3. Incomplete lines run by a deputy should not be sufficient for the principal surveyor to certify the plat and validate the grant.[3]:596-97
  4. Sutherland, as a Tory, was an enemy alien and forfeited his colonial land warrant when Virginia joined the United States.[3]:599


The Supreme Court overruled all four objections. There was no dissenting opinion identified in the resolution.

  1. The principal surveyor's certificate referencing the land warrant is sufficient authority for the survey.[6]:689
  2. Incompetent or incomplete surveys do not invalidate the claim to the land.[7]:40
  3. A deputy has the whole power of the principal surveyor and Taylor's survey was accepted by the principal as completed.[8]:215
  4. No act of Virginia legislation had divested property from enemy alien owners before 1794 and the Jay Treaty ninth article protected defeasible estate from then on.[6]:718


Traditional English law allowed aliens to purchase land but the crown retained interest to that land. So, even though an alien could exercise dominion over his property as a tenant, he could not bequeath the land to heirs and had to surrender the title upon demand from the crown.[9] After a declaration of war, enemy aliens automatically forfeited their title to the land. That presumption from long standing law became a pleading for this case.[10]

However, the Supreme Court held that land owned by British subjects, made aliens due to the Revolutionary War, was protected from confiscation per the Treaty of Paris.[11] To reclaim land possessed by British subjects, each state had to pass applicable legislation and then complete escheat proceedings for individual cases.[12] Virginia did not enact such law. As of 1794, under the protection afforded by the Jay Treaty, British subject Sutherland retained title to his 1,000 acres in question.[13]


John Radford died, gored by a boar in a hunting accident in 1817, before the Supreme Court affirmed the 1,000 acres was entirely his.[14]:8-9

Widow Harriet Kennerly Radford moved with her three children to Saint Louis, Missouri to live near her two brothers and ailing first cousin, Julia Hancock Clark. Julia's husband was William Clark. Julia passed in 1820 and Harriet became Clark's second wife in 1821.[15]:38

William Preston wrote a letter May 27, 1774 to George Washington describing the jeopardy his surveyors were facing, by the Cherokee from the south and from the north by the Shawnee and other Indian tribes based above the Ohio River. These attacks were a prelude to Lord Dunmore's War and then the subsequent Illinois Campaign.[16]

There is argument that this case and others, by extending rights to alien individuals per federal treaties, exceeded United States Constitutional authority. New York lawyer Franklin Pierce contended in 1908 that land titles were domestic law and state statutes were wrongly overridden, specifying this case as an example.[17] In 1984, Judge Robert Bork wrote a concurring opinion for the Tel-Oren v. Libyan Arab Republican case in the United States Court of Appeals for the District of Columbia Circuit which argued the courts cannot apply treaty rights without explicit private right of action specified in the treaty.[18]


  1. ^ "16 U.S. 594 - Craig v. Radford". OpenJurist. OpenJurist. Retrieved 5 April 2015. 
  2. ^ Washington, Bushrod. "Craig v. Radford" (PDF). The Judicial View. The Judicial View, L.L.C. Retrieved 25 July 2014. 
  3. ^ a b c d e f Wheaton, Henry (1818). Reports of Cases Argued and Adjudged in the Supreme Court of the United States, Vol. III. New York, New York: R. Donaldson. p. 595. 
  4. ^ Mordy, David L. and James C. (2011). "William Radford, Revolutionary Patriot of the Continental Marines". The Smithfield Review. XV: 23–34. Archived from the original on 4 August 2014. Retrieved 24 July 2014. 
  5. ^ Yates, Robert Somerville Radford (1986). A History of William Radford of Richmond, Virginia. Decorah, Iowa: Amundsen Publishing Company. p. 3-1. 
  6. ^ a b Coxe, Richard S. (1829). Digest of the Decisions in the Supreme Court, Circuit Courts and District Courts of the United States. Philadelphia, Pennsylvania: Philip H. Nicklin, Law Bookseller. 
  7. ^ Clark, Frank Emerson (1922). A Treatise on the Law of Surveying and Boundaries. Indianapolis, Indiana: The Bobbs-Merrill Company. 
  8. ^ Story, William W. (1856). A Treatise on the Law of Contracts, Vol. 1 (Fourth ed.). Boston, Massachusetts: Little, Brown and Company. 
  9. ^ "Alien Enemy – Acquisition of Property – Trading with the Enemy Act". University of Pennsylvania Law Review and American Law Register. 69 (2): 176. January 1921. 
  10. ^ Peters, Richard (editor) (1833). Condensed Reports of Cases in The Supreme Court of the United States, Volume IV. Philadelphia, Pennsylvania: DeSilver, Jun. and Thomas. p. 347. 
  11. ^ "Conflict Between Local and National Interests in Alien Landholding Restrictions". University of Chicago Law Review. 16 (2): 320. Winter 1949. 
  12. ^ Kettner, James H. (July 1974). "The Development of American Citizenship in the Revolutionary Era: The Idea of Volitional Allegiance". American Journal of Legal History. 18 (3): 237–8. 
  13. ^ Abbott, Benjamin Vaughn and Austin (1867). Digest of the Reports of the United States Courts and the Acts of Congress, Vol. I. New York, New York: Diossy & Cockcroft. p. 61. 
  14. ^ de Meissner, Sophie Radford (1920). Old Naval Days. New York: Henry Holt and Company. 
  15. ^ Kennerly, William Clark as told to Elizabeth Russell (1948). Persimmon Hill: A Narrative of Old St. Louis and the Far West. Norman, Oklahoma: University of Oklahoma Press. 
  16. ^ Hamilton, Stanislaus Murray, editor (1902). Letters To Washington And Accompanying Papers (Volume V): 1774, 1775. Boston, Massachusetts and New York, New York: Houghton, Mifflin and Company. pp. 1–3. 
  17. ^ Pierce, Franklin (1908). Federal Usurpation. New York, New York: D. Appleton and Company. 
  18. ^ Graeff, Kay and Sloss, David. "Treaties in U.S. Courts: Judge Bork's Anti-Originalist Revolution". bepress Legal Series. Berkeley Electronic Press. Retrieved 10 August 2014. 

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