Written by Edwin J. Smith in 1905 and published in the John P. Branch Historical Papers of Randolph-Macon College.
The formative period of our national existence is the one which, more than any other, produced great men. Great issues arose which had to be settled. Great battles were fought and won in the arena of public life-battles on which depended the nation’s very existence. Although many were on the losing side, it does not follow that, those who fought hardest for what, it seems to us now, would have meant death to our Union, were not moved by the highest motives of patriotism and devotion to duty. Each had ideas which he thought were right, and each did his best to have them adopted. Spencer Roane fought long and strenuously against a construction of the United States Constitution which he and his co-workers thought would lead to monarchy, but which we now see properly hastened and developed it for the centuries of life and activity that were to follow. Jefferson, Roane’s friend and political teacher, entertained the same opinions, and who can say, that following the tendency of Hamilton, the Union would not have drifted, ere this, to monarchy in some form, but for the influence of their constant opposition which culminated in the Civil War.
The work of a great judge, no matter how perfect its argument or profound its learning, is necessarily hidden from the general public. The work of the active politician always submerges and renders obscure that of the more conservative and dignified court. Its wisdom is shut up in the musty volumes of the law libraries accessible only to lawyers or those interested in antiquities. But its influence is none the less powerful because it is unobtrusive and there has been no more important factor in our national development than the Judiciary. Spencer Roane was influential not merely on account of his fine judicial work, but also because of the active interest he took in politics. He frequently wrote for the papers in regard to matters of public interest.
The Roanes are of pure Scotch origin. Gilbert Roane, among the first of the name, was born in Scotland, on February 12, 1680, After serving with distinction under William III., in the civil wars of his time, he removed to Ireland to a grant of land given by the King to him and his heirs “as long as grass grows and water runs,” in reward for his services. He had four sons, all of whom came to America. John, the fourth son, born in 1717, came over in 1739, and was ordained a Presbyterian minister in 1745. William, the third son, came over with his other brothers in 1741. He was born in 1713, and having married Sarah Upshaw, settled in Essex county, Virginia. They lived a quiet, country life, and many of the descendants of their six children were destined to hold high places in their country’s service. The oldest, Thomas, married Mary Ann Hopkins, and one of their fourteen children marrying Sterling Ruffin, became the mother of that distinguished jurist. Chief Justice Thomas Ruffin, of North Carolina. Another son became the father of John Roane, for a number of years a member of the United States Congress. A daughter married Archibald Ritchie, and became the mother of Thomas Ritchie, the founder of the Enquirer, and “father of journalism” in Virginia-a lifelong friend of Spencer Roane.
The third son of William Roane, William Roane, Jr., was the father of Spencer Roane. He was born about 1740, and seems to have received a classical education. He was thoroughly in sympathy with the action of the Colonies, and after serving the State as member of the House of Burgesses from 1768 until the Revolution, he joined a volunteer military company to serve her as defender. He married Judith Ball, and lived in the county of his birth. It was here that Spencer Roane was born April 2, 1762.
From his boyhood Roane was carefully educated by his father, with the assistance of tutors, both in the classics and in that spirit of liberty and freedom which characterized his whole career. He was born during the period when his country was preparing for the great struggle which all felt must come, and accordingly, his whole being was permeated with those fundamental republican principles characteristic of the time. These principles were departed from by some of his friends after the adoption of the Constitution, but he never forsook them. He was an ardent supporter of the Revolution, and though only fourteen when it broke out, he organized his playmates into a company of militia, who wore native hunting shirts with the famous words of Patrick Henry, “Liberty or Death” on their breasts.
Thus carefully prepared by his father, he entered William and Mary College. He did work here in the academic department, and later attended the law lectures of that greatest of all Virginian teachers, Chancellor Wythe. He was a good student and devoted himself to his work. He mastered Littleton, Coke, Hale, and Holt, besides reading a great deal of history. Of his law reading he preferred the work of Coke. He then attended a Law Society in Philadelphia, pursuing still further his law studies. He neglected to some extent common law and equity, and devoted his time to constitutional questions which he studied with the greatest delight. Up to the end of his life this was the field of his greatest activity.
He finished his education and begun to practice law in 1782, in his native county. He turned at once, however, to politics, and was elected by his county a member of the House of Delegates in 1783-only a year after he began to practice and re-elected in 1784. Here he was a member of a number of important committees. With Patrick Henry, he served on the Committee on “Propositions and Grievances;” and with Marshall, “to prepare and bring in a bill to amend the Act for Establishing County Courts.” He was also a member of the Committee that drew up the address of thanks and gratitude to General Washington. Thus, while only a young man of tweny-two, he was closely associated with men who were the greatest in their country’s service; one of whom was to be his bitterest opponent in the judicial clash that was to take place later. Yet in spite of this, he never in any way sacrificed his principles; and when it came to voting, he did it regardless of the opinions of his contemporaries. An incident will indicate his characteristic stubbornness when principle was involved. Some of the citizens of Essex-constituents of his-tarred and feathered a merchant of Tappahannock who had tried to betray the town to the British. They were prosecuted in the General Court, and pending the prosecution they sent a petition to Spencer Roane in 1784, praying the Assembly to arrest the prosecution. He presented the petition, stating that the act occurred previous to the signing of the treaty and that, though the transaction was somewhat irregular, the act was done flagrante bello. Henry opposed, but Roane persisted and, Henry giving in, the Act of Indemnity passed.
He was elected a Member of the Privy Council, taking his seat in June, 1784. After two years service he resigned only to be returned as Senator for the counties of Essex, King and Queen, and King William. He had now come to be recognized as a man of fine intellect as well as a devoted Whig, and a stickler for his principles. So well recognized was his merit that in 1789 when a vacancy occurred in the General Court he was elected to fill the place.
The General Court was established in October, 1777. It was the outgrowth of the old Colonial General Court, consisting of the Governor and the Council for the time being. With the adoption of the new Constitution, however, this was changed, and by an act of the Assembly, the Court was to consist of five judges, appointed by joint ballot of the two Houses of the Assembly, to hold their offices during good behavior. Its jurisdiction remained as in the old Court and extended over all persons, and in all causes and matters or things at common law, both original and by appeal. Thus it remained the principal Court in Virginia until, by an Act of Assembly, December 22, 1788, District Courts were established which were given most of the original jurisdiction of the General Courts. It still retained, however, its appellate jurisdiction and that of fiscal matters, probate of wills, and proof of deeds; also criminal jurisdiction in regard to impeachments, etc. It was finally abolished by the Constitution of 1851. In December, 1788, the Supreme Court of Appeals of Virginia was established. Prior to this it had consisted of the three chancellors, the five judges of the General Court, and the three judges of the Admiralty Court. From this time it was made a separate court, and has remained 30 ever since. It consists of five judges, and its jurisdiction is almost entirely appellate. Its history has been one of steady progress, and of the triumph of Justice.
While Roane was a member of the General Court a case involving the question of the right of the Judiciary to declare legislation unconstitutional, came before it in Kamper v. Hawkins. The question was whether or not a Judiciary Act of the Legislature passed December 12, 1792, granting to District Courts “the same power of granting injunctions to stay proceedings on any judgment obtained in any of the said District Courts as is now had and exercised by the High Court of Chancery,” was constitutional, and if it was not, whether the courts had the right to declare it unconstitutional and to refuse to execute it. Roane, with his brothers on the bench, maintained that the act was unconstitutional, and that the Court had a right to declare it so. He said that as the Court of Chancery was the only Court given certain powers by the Constitution, and as the judges of this Court must be elected by joint ballot of both Houses, judges who by this act are really made Chancery judges cannot be appointed by Act of the Assembly. “If these can be judges who are not appointed by joint ballot, but by an Act of Assembly, the Senate have in that instance more power than the Constitution intended, for they control the other branch by their negative vote; whereas, if they mixed with that branch in joint ballot a plurality of votes of Senators and Delegates would decide.” “I think the Judiciary may and ought not only refuse to execute a law expressly repugnant to the Constitution, but also one which is by plain and natural construction in opposition to the fundamental principles thereof.” In these words Judge Roane affirms the great doctrine of the right of the Judiciary to declare legislative acts null and void as being unconstitutional, which Virginia was the first State to assert through her grand old Judge Wythe, in the case of Caton v. Commonwealth,” and which was afterwards laid down by another of her sons, Chief Justice Marshall in Marbury v. Madison. It is a tribute to his foresight as well as to his intimate knowledge of constitutional principles that he was one of the first to uphold a principle so fundamental to the success of our Government.
As a member of the General Court it was Roane’s duty to sit in each Court of the districts into which the State was divided. In this way he became acquainted with every lawyer in the State. His judgments were highly approved, and so dignified and impartial was his conduct on the bench that he soon became the favorite judge. In December, 1794, when Henry Tazewell was transferred from the Court of Appeals to the United States Senate, Roane was selected to take his place, being elected on the very first ballot, though every judge on the bench of the General Court was nominated. He took his seat April 13, 1795, when only thirty-three years old-one of the youngest men who ever held such a responsible judicial office in Virginia. At this time the Court was increasing in power and influence. Under the guidance of the best lawyers of the State, with Edmund Pendleton at their head, it was rapidly gaining the respect of the whole country, and to this day its opinions stand high as authority in all the courts of the United States. Roane, next to Pendleton, was the ablest member. These two men were devoted friends, and though there was a great difference in their ages, each loved and respected the other. They often differed, however, and some of Roane’s ablest opinions were written in dissenting from the opinion of his friend. He never allowed anything to interfere with his convictions. He wrote an opinion on nearly every case in which he sat, taking the same care in the small as in the great cases. In two volumes of Washington’s Reports, six volumes of Call’s, four volumes of Hening and Munford, six volumes of Hening, and one of Peyton Randolph will be found his contribution to the legal literature of his State. They everywhere show wide reading of literature and the classics, as well as of law and history. Liberty was their keynote. He hated the usurpation of power by courts or individuals, and all his life fought against it. Daniel Call says of him, “This (his reading), together with the natural vigor of his understanding and his other literary attainments soon rendered him one of the most distinguished members of the bench; second only in public estimation to Edmund Pendleton; and upon the death of that gentleman, he was, beyond dispute, the ablest judge of the Court….His opinions were generally sound, and their authority almost incontestable.”
Though a great deal of his time was required for his judicial work, which he did thoroughly and conscientiously, he still found time to take part in the political discussions of his day; often contributing articles to the newspapers. His views were clear and decided, and he did not hesitate to assert them. His style was clear and lucid, though after the fashion of his time, somewhat verbose. He belonged to the great Anti-Federalist or Democratic party of Jefferson, and was a great admirer of the Sage of Monticello. When the Federal Constitution came before the people to be ratified he opposed it. Edmund Randolph, a member of the Convention that framed the Constitution, and one who had refused to sign it after its adoption by the Convention, in a letter to Madison, 29th February, 1788, wrote: “A writer calling himself ‘Plaindealer,’ who is bitter in Principle vs. the Constitution, has attacked me in the paper.” This probably refers to an article by Roane signed “Plaindealer,” and published about this time in the Virginia Independent Chronicle. Governor Randolph, delegate to the Federal Convention from Virginia, had refused to give his assent to the Constitution, since he had several amendments which he had desired should be incorporated. For various reasons, some of which were political, he had failed to give his real opinion in regard to the matter. In October, 1787, however, he wrote a letter to the State Legislature, which, while it did not commit him for the Constitution, was, on the whole, an argument for its adoption, even without his proposed amendments, rather than against it. Roane takes this up, refutes his arguments, and shows up the inconsistency of his position. Speaking of his delay, he says: “But I am of opinion that during the pendency of a question concerning the Constitution every information on that subject is most properly to be adduced; and I do not know that being or not being Governor of Virginia (an office, in a great degree, nominal), was sufficient to deter a real patriot from speaking the warning voice of opposition in behalf of the liberty of his country.’*** Good God! how can the first magistrate and father of a free Republican Government, after a feeble parade of opposition, and before his desired plan of amendments has been determined upon, declare that he will accept a Constitution which is to beget a monarchy or an aristocracy.” He says that a Constitution “ought to be, like Cæsar’s wife, not only good, but unsuspected, since it is the highest compact which men are capable of forming, and involves the dearest rights of life, liberty and property.” He recognized, however, the magnitude of the task of making a Constitution for the States. “But when it is considered that the present is not the golden age, the epoch of virtue, candor and integrity, that the views of ambitious and designing men are continually working to their own aggrandizement, and to the overthrow of liberty, and that the discordant interests of thirteen different Commonwealths are to be reconciled and promoted by one general government; common reason will teach us that the utmost caution, secrecy and political sagacity is requisite to secure to each the important blessings of a good government.” He, however, did not propose an attack on the Constitution, for he says: “It is not my purpose to oppose now or to investigate the merits of the Constitution. This I leave to abler pens and to the common sense of my countrymen.” He did oppose it, however, not because the Articles of the Confederation were sufficient for our Union, nor from any unwillingness to increase the powers of the Federal Government; on the contrary, he was of the opinion that the Union was “too loosely banded together,” and wished to see it vested with power of raising an adequate revenue for all purposes of defense without depending on the requisitions from the States. He did think, however, that some powers were given by the Constitution which should have been withheld, and he did fear that the important powers reserved to the States and to the people were not reserved with sufficient explicitness.” After its adoption, with its amendments (which removed most of his objections), he became one of its strongest supporters, though true to his principles as a member of the Republican party; he maintained “that the Federal Government was limited in its powers, that it possessed only those which were expressly granted by the very terms of the compact or were fairly incidental to them.” This was the keynote of his life work. He consistently upheld it all through his life, both by his legal opinions and his written appeals in the papers.
Subsequent to the adoption of the Constitution, the parties which had been divided previously over the question of its adoption now differed in regard to the construction of that instrument. The anti-Federalists, uniting with the opponents of Hamilton’s policies, became the Republican or Democratic party, with Jefferson at its head. They demanded a strict construction, believing that too liberal a construction was destructive to the liberty of the States, as well as to that of the people. This marked the beginning of the State’s Rights party. The Federalist party, under Washington, Hamilton and Adams, went into power at the adoption of the Constitution, and remained so until after the Adams administration. During this administration, however, the party became very unpopular, both on account of the disaffections in its own ranks and on account of the famous Alien and Sedition Acts. These the Democrats denounced as a high-handed usurpation of power by the administration. So determined did the opposition to the Acts become that in 1798-‘9 resolutions were introduced in the Legislatures of Virginia and Kentucky practically declaring that each State was a sovereign power, and that the Union, being voluntary, might be dissolved whenever they saw fit. The repeal of the obnoxious laws, however, having removed the stress, the resolutions were dropped, and were afterwards admitted to be simply the statement of a policy on which the Republicans (or Democrats) wished to base their campaign. Roane was a strong supporter of these resolutions. He said: This document contains the renewed sense of the people of Virginia in the important subjects to which it relates; a sanction deemed important enough in some States to operate an amendment to their Constitutions (Maryland), and that it had a principal influence in producing a new era in the American Republic.” Again, “It has often been called by an eloquent statesman his ‘political Bible’ (John Randolph). For truth, perspicuity and moderation, it has never been surpassed. It is entirely Federal. It was the Magna Charter on which the Republicans settled down after the great struggle in the year 1799.”
Accordingly in 1800, the Federalists were disastrously beaten, and Jefferson was elevated to the Presidency, taking his seat in 1801, March 4th. Before the inauguration, however, it became known that he would appoint a strong Republican, probably Roane, to take the place of Chief Justice Oliver Ellsworth, who proposed to resign. Accordingly the Federalists, on the last of January, induced Ellsworth to resign, and Adams appointed John Marshall to succeed him.
