SPENCER ROANE. BY EDWIN J. SMITH,* A. M., RANDOLPH-MACON COLLEGE; TH HE 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 *Awarded the Bennett History Prize in 1904. · 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 1See Enquirer, Sept. 17, 1822. 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 2See Journal of House, 1783-'4, 1784-'5. *See letter of Patrick Henry to William Wirt, II Henry's Henry, 244; also, T. R. B. Wright, on Roane, II Va. Law. Reg., 473. 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 Admirality 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 4See 2 Va. Cases, p. 103 (introduction); also, Court of Appeals of Va., by S. S. P. Patteson, 5 Green Bag, 310. "See 1 Va. Cases, 20. |