When the Democrats came into power, the need of a Democratic paper was felt in Virginia. The newspaper had now become one of the most important methods of political warfare. Each party maintained one at Washington, in which articles advocating the one and maligning the other were published. These were read throughout the country, and in those days of slow transit had to do, even more than to-day, with moulding public sentiment, i. e., of the qualified voters. In 1804 Roane established the Richmond Enquirer, and installed as its editor his cousin, Thomas Ritchie, later to be called “the father of journalism in Virginia.” Ritchie was a young man who, having tried law and then teaching without success, at last found his calling. From this time on he and his paper, known as the “Democratic Bible,” became the most powerful and influential factor in the South. With John Taylor, Roane, and probably Brockenbrough, he formed a coterie of politicians in Virginia which, with the help of the Enquirer, was the most influential single group in the country, except in possibly the Albany Regency, their influence being felt decidedly in the national affairs. J. Q. Adams says in his diary: “The Enquirer is a paper edited with considerable ability, and the organ of the new Virginia faction under the auspices of Spencer Roane-Wirt almost worships Roane.” Roane and Ritchie remained friends and colleagues during their whole lives, and they did a great deal to shape the policies of our nation. Jefferson and Madison recognized their power, and though they later differed on some questions, they were entirely friendly.
Though so much interested in politics, Roane did not allow this to interfere in any way with his judicial work. His range of reading was very wide, and his opinions were written with the same care and thoroughness throughout his career. In 1804 an important case came before the Court of Appeals. This was the case of Turpin v. Lockett, when Roane, with Judge Tucker, sustained the constitutionality of the great act of 1802, by which the Glebe lands of the Episcopal Church-those not occupied-were to be applied to relieving the poor in the parish. In the days before the Revolution the King had ordered each parish to set aside so much. land, the proceeds of which was to furnish subsistence to the pastor. This was the custom of the Church of England. In Virginia the Legislature passed an act which dispossessed the vestrymen of this land. The vestrymen of a church in Manchester brought action against the overseers of the poor who had taken their land, maintaining that the act was void, as unconstitutional. Roane, with the majority of the court, held that the act was constitutional. He said the land was granted to the vestrymen for the use of the pastors, and that when it became vacant, reverted to the government. The act of 1748, saying that the lands were “appropriated for the use of the minister of such parish and his successors in all time hereafter,” showed that they were given as to a body corporate, i. e., minister and his successors, and that “when this was dissolved, the lands revert to the donor, for the grant faileth.” And as the corporation was dissolved by the fact that the Revolution changed the character of the ministers and prevented them from being really the successors of those to whom the land was granted, “it merely restores to the people that which was levied for a purpose that has ceased to exist.” In fine he said: “We are urged by the appellant’s counsel to put Deism to flight, and restore the altars of our fathers. If there be a league of Deists, or others in the Legislature or elsewhere, to overturn religion or impair morality, it is to me a subject of the deepest regret. I can never cease to believe that these are the firmest pillars of society, the surest basis of human happiness. For myself, I am now called upon to perform a painful duty. That duty must not be obstructed by any sympathies or partialities of mine.” It is interesting to note that Edmund Pendleton prepared an opinion contrary to that of Roane, but died before he could deliver it. Thus of the six who sat in the case, three were on each side. The same case came up in 1840, and Roane’s opinion was affirmed in Selden v. Overseers of the Poor.
As soon as the Federalists were ousted from control and the States Rights Republicans, under Jefferson, came into power, there was a change of front. Roane and his colleagues, who had so bitterly denounced every supposed usurpation of power, looked on approvingly, while Jefferson, in the purchase of Louisiana, committed an “assumption of implied power greater in itself and more comprehensive in its consequences than all the assumptions of implied power in the twelve years of the Washington and Adams administrations put together.” The Republicans, being in power, could not use their States Rights doctrines, and they were taken up by the Federalists. In New England, which was the stronghold of the Federalists, resistance to the national government was threatened. They denounced Jefferson and his policy in regard to the Judiciary, as well as the purchase of Louisiana. A conspiracy was formed with Pickering at its head, which was demolished only by the defeat of Burr in his contest with Jefferson for the Presidency. The dissatisfacton remained, however, and when in 1807 Jefferson laid the hated embargo because of the insults which England heaped upon American merchant ships, the furor again broke out. The New Englanders being a commercial and seafaring people, were especially injured by the embargo. The other States were clamoring for war with England on account of her treatment of the Merchant Marine. In Virginia enthusiastic meetings were held advocating war. Roane was chairman of such a meeting in Richmond, and Ritchie was secretary. Resolutions were passed demanding a war of retribution with England. The war was especially unpopular in New England, and though the embargo was removed, the dissatisfaction continued. England continued her depredations on the United States merchant ships. The war spirit increased, but the New England Federalists resisted their leader, Pickering, clamoring for a convention of the New England States. In 1812 he proposed one only to be defeated by a speech of Dexter in Boston. War was declared. They refused to send troops or take part, and when the United States armies had met with defeat on every side, when the treasury was empty, the famous Hartford Convention was called December 14, 1814. The universal belief was that the New England States contemplated disunion, and in Virginia the depression amounted almost to despair.
The Convention met, and under the leadership of the conservative George Cabot, recommended measures similar to those sentiments of the Kentucky and Virginia resolutions of 1798, which had been so much censured. Delegates were appointed to report at Washington. Everything was dark for the Union. The English were pressing on New Orleans, the country was bankrupt, and the army gone. Every one awaited new disaster. Instead, however, came news of the defeat of the English at New Orleans, followed by the treaty of peace. The tension was broken. Quiet was restored, and the Hartford Convention delegates never reported.
Roane and his colleagues, though strong States Rights men, assumed a severe attitude toward New England, and advocated harsh measures. Though this was their own theory put in practice, they opposed it. They seem never to have contemplated secession as the final result of their policy. Their idea was merely a peaceful opposition to the usurpation of power by the central government. Roane spoke of the “anarchical principles prevalent at the time of the argument in a particular section of the Union.” The Richmond Enquirer heartily endorsed a report that Madison would order troops to march against New England.
Jefferson was very hostile to the Judiciary which the Federalists had forced on the country in 1801, and he tried in various ways to decrease its power. He recognized the vast influence for centralization of power that such a tribunal might exert. He, believing in the rights of the States, did everything to prevent the overriding of the weak governments by the stronger. Finding that impeachment proceedings were without avail, his only hope was to fill the vacancies with sound Republicans. Accordingly, he appointed Story and Johnson, and, much to his chagrin, found that though not so aggressive as Marshall, they accepted his views, and became just as independent.27 So under the guidance of Marshall, the Supreme Court continued to increase in power and influence until in 1815 it came into direct conflict with the State Court of Virginia, under the leadership of Roane. Thus was begun the second period of the struggle of the Southern States to maintain their sovereignty. The same fight that Hamilton and Jefferson fought soon after the adoption of the Constitution, and that Virginia and Kentucky fought in 1798, was again taken up by Marshall and Roane, which struggle, though lulled for a time by the Missouri compromise, finally broke out in the war of 1861, and was settled for all time. Roane, with the full approbation of Jefferson, did all he could by writings and speeches to reduce the power of the Supreme Court, which he believed was gradually leading to consolidation of the National Government. The basis of the discussion was, of course, the interpretation of the Constitution, Roane contending for a strict construction, while Marshall contended for a broad construction of its grants.
The case over which the contest arose was that of Hunter v. Fairfax, involving rights claimed under the treaty of 1783 with England. It first arose in the District Court of Winchester. It was an act of ejectment brought by Hunter against Fairfax for 788 acres of land in Northern Neck. All rights to the whole territory of Northern Neck had been vested in Thomas Lord Fairfax in 1736 by a grant of the King, and said grant confirmed by act of Legislature in 1748. He died in 1781, devising all his “undivided sixth part or share of his lands and plantations in the colony of Virginia” to the Rev. Denny Fairfax, his nephew, of the county of Kent, Great Britain. So the land stood vested in an alien by devise. On April 30, 1789, David Hunter was granted a patent for 788 acres of the land situated in the county of Shenandoah, and in 1793 brought this action to get his land. The District Court decided for the defendant, Fairfax, and an appeal was taken. In the meantime, Fairfax died, and the appeal was renewed against Philip Martin, his heir at law and devisee. It was argued before the Court of Appeals of Virginia in May, 1796, and again October 25, 1809, and in April, 1810, the court handed down an opinion reversing the District Court. In an able opinion Roane maintained that the land in question belonged to the plaintiff because it had been granted to him by the State. It belonged to the State because, as the State had a right to confiscate property belonging to an alien enemy, and as it virtually did this by the acts of 1782 (prior to treaty), ordering the quit rents to be paid to the State treasury instead of defendant, and ordering that all entries made with the “surveyors of the counties within the Northern Neck shall be held and deemed as valid and good,” the title was really vested in the State by implication. He said: “I am of opinion that the title of the Commonwealth to the land in question, having been perfected by seisin under the act of 1782, or, in other words, the confiscation being complete, that treaty (1783) had nothing left whereon to operate,” and therefore the title given by the Governor in 1789 was good.
An appeal was taken by the defendant to the United States Supreme Court, on the ground that a question of a right claimed under a treaty had been decided adversely to that right, and that under the twenty-fifth section of the Judiciary Act the appeal could be taken. The Supreme Court heard the case, and reversed the decision of the State Court on the ground that the Acts of the Assembly did not amount to a taking possession of the lands in question, and inasmuch as the State did not do what it might have done before the treaty of 1783, it was prevented from doing it after that treaty was signed. Therefore, as it could not pass any better title than it had, the property remained in Philip Martin, the defendant below. This opinion was rendered by Judge Story at the request of Judge Marshall, who was far too patriotic to humiliate his native State by a reversal of her highest court. Justice Johnson in this case dissented from the opinion of the court, agreeing with Judge Roane that the title to the land was in the State. He did not, however, question the right of the court to reverse the State Court under the Judiciary Act, saying, “I am of opinion that whenever the case made out in the pleadings does not in law sanction the judgment which has been given on it, the error sufficiently appears upon the record to bring the case within the twenty-fifth section of the Judiciary Act.”
On receiving the mandate from the Supreme Court commanding the Virginia Court of Appeals to reverse its decision the judges unanimously refused. Roane’s opinion was especially strong, and was printed in the Richmond Enquirer February 16, 1816, under the heading, “An Interesting Case.” He first takes up the question of the constitutionality of the twenty-fifth section of the Judiciary Act, by which the right of appeal from the State to the United States Courts is given. He maintained that since the United States Government was one of granted power, any of its laws must be proved to be constitutional by showing that power to pass it has been granted. In no place in the Constitution can mention be found giving the United States Courts appellate jurisdiction over the State Courts, which are absolutely independent. This the act in question does. The part of the Constitution, second section, third article, from which this power is deduced, reads, “In all other cases before mentioned the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exception and under such regulations as Congress shall make.” This clause, however, he contended, referred only to the inferior United States Courts, and not to the State Courts, as will be seen by referring to that part of the Constitution which precedes this. The Constitution says “courts,” and everywhere courts are mentioned those of the United States are meant, for in all cases the general rule prevails that a Constitution settles the powers and arranges the jurisdiction of its own courts, and not those of another government. The Constitution gives the United States power “over all cases in law and equity arising….treaties made or which shall be made under their authority.” This means that the “judicial power of the United States is to be determined by the suit or action being proper for the cognizance of their courts, and being actually instituted or brought therein. If brought or instituted in the courts of another government, though they may involve the construction of the Constitution, laws, or treaties of the United States, they form a part of the judicial power of that government, and not of the United States. On any other hypothesis the judicial power of the United States would be co-extensive with the limits of the world on the principle that the lex laei prevails everywhere in the case of contracts.”
He then said that this case did not even come under the section in question, because the treaty right was not the only ground on which the case was decided, and the act does not mean to take appellate jurisdiction where a treaty may be colorably relied on as one of the grounds of defense. In conclusion, he said: “Upon the whole, I am of opinion that the Constitution confers no power upon the Supreme Court of the United States to meddle with the judgment of this court in the case before us; that this case does not come within the actual provisions of the twenty-fifth section of the Judicial Act, and that this court is both at liberty and is bound to follow its own convictions on the subject-anything in the decision or supposed decisions of any other court to the contrary, notwithstanding.
“My conclusion, consequently, is that everything done in this cause subsequently to the judgment of reversal by this court was coram non judice unconstitutional and void, and should be entirely disregarded by this court; that the writ of error in this case. was unprovidently allowed, and that the judgment of reversal by the court should be now certified to the Superior Court, which has succeeded to the District Court of Winchester in its powers for the purpose of being carried into complete execution.”
The Supreme Court answered, maintaining their former position and the constitutionality of the Judiciary Act. Both Story and Johnson gave opinions–Story the opinion of the court, Johnson because he did not entirely agree with the reasoning of his brother and “wished to disavow all intention to decide on the right to issue compulsory process to the State Courts.” His opinion was published in the National Intelligencer April 16, 1816, in answer to Roane’s, which seems to have met the approbation of the public. It is likely that Marshall requested this, and he chose Johnson’s probably because he wished to humiliate Jefferson, who had appointed Johnson, but more probably because Johnson’s opinion was more moderate than Story’s, and was better calculated to allay the storm of public sentiment which the case had excited. In his opinion he says, “So firmly am I persuaded that the American people can no longer enjoy the blessings of a free government whenever the State sovereignties shall be prostrated at the feet of the general government, nor the proud consciousness of equality and security, any longer than the independence of judicial power shall be maintained consecrated and untangible that I could borrow the language of a celebrated orator and exclaim, “I rejoice that Virginia has resisted.” He thinks, however, that the Virginia Court should have been more moderate, and that it went too far when it declared that the Supreme Court decision was void. He maintained that the twenty-fifth section of the Judiciary Act was constitutional, but said, “God forbid that the judicial power of these States should ever for a moment, even in its humblest departments, feel a doubt of its own independence.”
As the Virginia Court of Appeals refused to obey, the Supreme Court declined to attempt to compel obedience by a further procedure, but by its own officer executed its mandate. The influence of this case on public opinion it is difficult to estimate. Followed by a series of strong articles that appeared later from the pen of Roane, concerning several decisions of the Supreme Court, it is certain that it did a great deal to crystalize the doctrine of States Rights, which ever after became the favorite dogma of the South. At the time of the decision, however, the country was in such a pleasant state of mind over the happy termination of the war and the new era of prosperity that followed it, that its influence was not so much felt as it otherwise might have been.
Roane had Jefferson’s fullest approbation in this decision as evidenced by the following words from a letter from him October 12, 1819: “I knew well that in certain Federal cases the laws of the United States had given to a foreign party, whether plaintiff or defendant, a right to carry his cause into the Federal Court; but I did not know that where he had himself elected the State judicature, he could, after an unfavorable decision there, remove his case to the Federal Courts and thus take benefit of two chances where others have but one; nor that the right of entertaining the question in this case had been exercised or claimed by the Federal judiciary after it had postponed on the party’s first election….I confess myself unable to foresee what those grounds would be (of the Federal opinion). The paper enclosed must call them forth and silence them, too, unless they are beyond my ken.”
Roane continued his opposition to the extension of the powers of the Judiciary. In March, 1819, a case came before the Supreme Court in regard to the constitutionality of the United States bank. In the case of McCulloch v. Maryland, it was decided that there is nothing in the Constitution of the United States which exclude incidental or implied powers, and that Congress had power to incorporate a bank. This aroused all the opposition in the Roane-Ritchie faction, and, beginning March 30, 1819, Roane published a series of two articles under the pen name of “Amphictyon,” which were introduced by Ritchie in these words: “We cannot too earnestly press upon our readers the following exposition of the alarming errors of the Supreme Court of the United States in their late interpretation of the Constitution. We conceive the errors most alarming, and this exposition most satisfactory. Whenever States rights are threatened or invaded, Virginia will not be the last to sound the tocsin.” In his articles Roane maintained that instead of handing down the opinion as “all concurring,” each judge ought to give his own opinion on so momentous a subject. Madison3 agreed with him on this point, as did Judge Johnson. He then takes up the two points in the opinion of Marshall and refutes them. The first is the denial that the powers of the Federal Court were delegated by the States. Taking Madison’s report of 1798-‘9 as his text, he shows that this view of the United States Government is erroneous. He shows that all the powers in the Constitution were granted by each State in its individual capacity, and that the taking of more rights than granted is an usurpation of power not warranted by the Constitution, and would be taking from the States “of some of the most important attributes of their sovereignty.”
The second principle advocated is that “the grant of powers to that government and particularly the grant of powers ‘necessary and proper’ to carry other powers into effect, ought to be construed into a liberal rather than a restrictive sense.” This he shows will lead to a government of unlimited powers. That the words “necessary and proper” add nothing to the Constitution, and are merely tautology. Necessary does not mean implied powers. “Necessary means one of those without which the end could not be attained. It conveys no grant of powers, and was asserted from abundant caution.” The government is one of vast powers and needs no liberal construction to make them sufficient.
He closes his discussion with an attack on the National Bank. He holds such an institution to be unconstitutional because the power to establish not being a “necessary” power, is not given by the Constitution. If you violate the Constitution to this extent to establish a bank, where will the power of Congress stop? By such a construction, absolute power to do anything will be given. But Roane’s animosity toward the National Bank did not prevent his investing funds in its stock at ten to twelve above par for his son William.
The articles were well received at the time, and heartily endorsed by the majority of the Democrats. The State Rights doctrine was much discussed, and the subject of many toasts, such as “States Rights, may they never be abandoned by the friends of freedom,” or “The government of the United States, the creature of the States sovereignties, may these sovereignties never want the wisdom or vigor to restrict it to the purposes of its creation,” or “The plea of necessity and the doctrine of implication, equally dangerous to the liberty of the people.” All this shows the prevalence of the States Rights views as influenced by Roane’s articles.
Following this series Roane published another under the pen & name of “Hampden.” This series, consisting of four installments, was even more widely read and approved than the other. It takes for its text the same decision, McCulloch v. Maryland, and contains the same views, advocating strict construction and criticising the opinion of the Supreme Court. The articles are ably written, and form an admirable statement of the States Rights doctrine. Jefferson wrote concerning it: “I have read in the Enquirer, and with great approbation the pieces signed ‘Hampden,’ and have read them again with redoubled approbation, in the copies you have been so kind as to send me. I subscribe to every tittle of them. They contain the true principles of the Revolution of 1800, for that was as real a revolution in the principles of our government as that of 1776 was in form; not effected indeed by the sword as that, but by the rational and peaceful instrument of reform, the suffrage of the people.”44 Madison, though he seems to have agreed with him in principle, was coy about expressing his opinion of the papers. He remembered possibly that he had written part of the Federalist, and that he had signed a bill instituting a United States Bank in 1816, and had also written the Virginia resolutions of 1799. John Taylor agreed, but President Monroe hesitated. He seems also to have agreed in principle, though as President he felt a delicacy in expressing an opinion. He gave “countenance to it by referring to his own resistance against the right of the government to make iternal improvements.” This discussion marks the beginning of a division in the old Republican party of Jefferson—a parting of the ways, as it were. The strict constructionists, who were in the majority in Virginia, remained true to Jefferson, while those who were not so radical in their view of construction believed in internal improvements and banks. These were later to be represented by the party of Benjamin W. Leigh and John M. Botts, in Virginia.” Roane continued true to his principle, and with Jefferson, ever remained a strict constructionist.
John Q. Adams, with his usual pointed sarcasm, considers these attacks of Roane a repetition of policy by which Jefferson became president in 1800, and only a means of getting in control of the government. He says, “The Virginian opposition to implied powers is therefore a convenient weapon to be taken up or laid aside as it suits the purposes of State turbulence and ambition; and as Virginia has no direct candidate to offer for the presidential election her aspiring demagogues are casting about them to place her again at the head of the formal opposition to the administration of the Union, that she may thus again obtain by conquest the administration itself….They still possess to a superior degree the art of public management….The tactics of the former war are again resorted to, and Roane comes forth as the champion of Virginia.” This is from the pen of one intensely opposed to Roane’s party and, of course, is partisan. We know from Roane’s previous life such was not the case, and that his opposition was one of principle rather than ambition. It is said that in 1824 Jefferson wished him to run as vice-president, with Crawford, but when it was mentioned by a friend he said, rising from an invalid’s couch, “Sir, is it necessary that I should disavow such wishes? If you think so, I will do it in my own name. I have no such pretentions. I am not ambitious of promotion. I am contented where I am. The business of administering justice is sufficiently useful to my countrymen to gratify my highest ambition.”
One other decision of the United States Supreme Court brought forth a strong series of articles by Roane in opposition to the principles which were involved. This was the famous Cohens v. Virginia. This case involved the same principle as the case Hunter v. Martin, whether or not the Supreme Court had appellate jurisdiction over the State Court of Appeals. The Cohens, a firm in Washington, had sold lottery tickets in Norfolk contrary to the Virginia laws. They were fined in Norfolk and on writ of error appealed to the Supreme Court. Virginia asked for a dismissal on ground of want of jurisdiction. This was denied by Marshall on the ground that under the Judiciary Act the Supreme Court had appellate jurisdiction over the State courts in certain cases as when the suit was between a State and a citizen of another State. This decision, in direct opposition to all the established views of Roane, brought forth a storm of criticism; Roane’s series of articles under the non de plume Algernon Sidney, are a remarkable expostulation against the doctrines of liberal construction. They were heartily endorsed by Jefferson and his school. He said in a letter to Johnson, June 12, 1823: “I considered these papers (those signed Algernon Sidney) maturely as they came out and confess they appear to me to pulverize every word which had been delivered by Judge Marshall of the extra judicial part of his opinion….This doctrine was so completey refuted by Roane that if he can be answered I surrender human reason as a vain and useless faculty; given to bewilder and not to guide us. Madison was not in full accord with these principles, though he respected Roane and thought him a very able man. Jefferson wrote January 11, 1821: “I am sensible of the inroads daily working by the Federal into the jurisdiction of its co-ordinate associates, the State Governments….The Judiciary branch is the instrument which, working like gravity without intermission, is to press us at last into one consolidated mass. Against this I know no one who, equally with Judge Roane himself, possesses the power and courage to make resistance; and to him I look and have long looked, as our strongest bulwark.”
These articles were received with equal enthusiasm by the majority of the papers. The Lynchburg Press, after commending them, says, they are “understood to be from the pen of Judge Spencer Roane, the organ of the old Republican party in Virginia at present its acknowledged leader, and the soundest interpreter of the Federal Constitution who has ever commented on its text.” The Louisiana Advertiser says, “We consider the following number of Algernon Sidney, taken from the Richmond Enquirer, as a piece having this (the right) tendency, and well worth publication.” The Times Danaos, the organ of De Witt Clinton, agreed also, but The National Intelligencer and New York American were opposed.
It is interesting to note that as a result of these articles, resolutions were introduced in the House of Representatives in December 21, 1830, by Hon. W. R. Davis, of South Carolina, for the repeal of the twenty-fifth section of the Judiciary Act. The Committee reported favorably June 24, 1831, but was rejected by a small vote June 29, 1831. They served, no doubt, to draw the line of States Rights, which was finally to be identified in the separation of the States.
This was his last important work. In the spring of 1822, he was taken with an indisposition and, going to the Warm Springs, in Bath county, to recuperate, died September the 4th, 1822. He died “without a pang or struggle. He retained the vigor of his great mind to the last. Sensible of his fate he met death with that invincible fortitude which he had evinced on every occasion.”
In private life, Roane was happy. He married Anne Henry, September 7, 1786, the daughter of Patrick Henry; and after her death, Miss Hoskins. Patrick Henry wrote to his daughter concerning him, “You are allied to a man of honor, of talents, and an open, generous disposition.” His son, William H. Roane, became an eminent lawyer, was twice a member of the Executive Council of the State, member of the Legislature from Henrico, member of Congress, Presidential Elector, and United States Senator from 1837 to 1841. One of Judge Roane’s letters to his son in regard to his campaign for the Legislature is especially interesting, as it shows the aptitude of the older man for politics. He advises him: “I send 200 copies printed addresses to the freeholders. It was written by Dr. Brockenbrough, and corrected and approved by me. No doubt it will please you. Some of these may be stuck up in all public places in the district, and the rest distributed in the form of letters through the district. Being addressed to the freeholders generally they will be thereby gratified; while by endorsing them to influential characters, there will be a mark of attention to them which will also please.” His was a domestic nature, and he was especially interested in his private business, in spite of his onerous public duties. His letters betoken a beautiful confidence and interest between him and his son. They discuss the crops, stock and investments with a zeal which no public business could hinder, and which was a notable trait in the statesmen of the old regime. He was constant and sincere, possibly a little irritable and scarcastic, but always just. An amusing story is told in this connection: “The Second Auditor of the State found it necessary on one occasion to leave the city. He had a very trustworthy boy as one of his assistants, and he decided to make him head of affairs during his absence. It happened that a portion of the Judge’s salary fell due about this time, and Roane found himself in want of money for immediate use. He called at the office, and applied for payment. To his astonishment the boy informed him that it would be due on such a day, and that if he would call on that day he would pay him. The judge turned off very angry, and on the way to his office related the incident to a friend. The friend remonstrated with him, and told him as it would only be a short delay, not to take notice of it. “That is not it,” said the Judge; “the d— little rascal is right, and I am wrong.” He was sociable and loved company-a great friend of his, Jefferson, visited him while on a visit to his relative, Mr. A. Brockenborough, near Charlottesville. And when the plans for the University were being laid, Jefferson invited Madison and Roane to join him at Monticello, and help him draw the scheme which was to be submitted to the Commission appointed for the purpose-the plan which was afterwards adopted by the Legislature and the Board of Trustees.” He did not care for quarrels, but lawyer-like, he fought to the end when he thought his rights invaded. This is shown by his petition to Chancellor Wythe praying him to take cognizance of some irregularity in Patrick Henry’s will, by which the other heirs were trying to divest his children of their share of their grandfather’s property.
As a lawyer he was noted for his wide general knowledge, and his ability to go to the root of things. His clear insight into judicial principles, and his love of justice will always mark him as one of the greatest legal lights of the American Judiciary. J. Randolph Tucker said, “Pendleton and Wythe, Jefferson and Madison, John Taylor and Roane, and a host of others are a galaxy of great statesmen who were also thoughtful jurists, though not case lawyers; taught by a profound knowledge of human nature, and a large, varied experience in human affairs to rear the temple of sound jurisprudence upon the deep foundation of natural justice and upon the law of God.”
He was twice one of the revisers of the laws of his State. In 1808, 1812 and 1816 he was a member of the College of Presidential Electors of the United States, and one of the Commissioners for locating the University of Virginia, in all of which positions he served with distinction, if we may judge from the deference paid him.
He it was who first did away with the method of Mansfield “of making opinions in secret, and delivering them as oracles of the court in mass. Judge Roane, when he came to the bench, broke up the practice, refused to hatch judgments in conclave or to let others deliver opinions for him.” This is the practice with Roane condemns so in the series on the McCulloch v. Maryland decision by complicity on and in which Madison and Justice Johnson agree with him.
“Though sensible of the good opinion of his countrymen, he never sacrificed to the phantom of the day what he regarded as the eternal principles of truth and honor.” For thirty-four years a member of the Judiciary, and for twenty the President of the Court of Appeals, he will be long looked upon as the greatest ornament to Virginia’s Judiciary; and as one who feared not to do his duty as he saw it. He will probably rank in Virginia with Chancellor Kent, of New York. His name would not have been so nearly forgotten had not the civilization and system which he helped to found been completely overthrown by the War between the States.
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