“Champion of States Rights, Champion of Dismemberment” – John Marshall

 

Spencer Roane was born on April 4, 1762 at Mahockney, Essex County, Virginia. As a boy during the Revolution, he was an ardent patriot, fashioning a hunting shirt for himself with the words “Liberty or Death” embroidered upon it, the words of his boyhood hero Patrick Henry – whose daughter he would later marry.

“Classically educated, he was at home in the treatises of Grotius, Locke, and Montesquieu. And when it came to the law, he had studied – as had so many of the leading Virginia lawyers such as Jefferson and Marshall – with the great George Wythe at the College of William and Mary. Steeped in Blackstone and Coke and Littleton, Roane was a lawyer’s lawyer, and one especially drawn to the great and abiding questions of judicial power.” – Gary L. McDowell, The Language of Law and the Foundations of American Constitutionalism, Cambridge University Press, 2010 (found here).

Public Career”

• 1783-85 represented Essex County for two terms in the House of Delegates
• 1785–86 Virginia Council of State
• 1788-89 Virginia State Senate
• 1789 appointed by State Senate as Judge, Virginia General Court
• 1794 appointed to Virginia Court of Appeals (later renamed “Supreme Court of Appeals”)

In 1783, the same year he was elected to the House of Delegates for the first time, Spencer inherited Mahockney plantation on his father William’s death. His father’s will stated: “I give to my son Spencer Roane all my lands in the County of Essex with the grist & saw mills to him & his heirs forever he having the sawing done for the necessary buildings & repairs on the plantation I now live on… My desire is that my negroes Richmond & Joe shall continue at the mills which I give to my son Spencer & be vested in him” (Will of William Roane, Essex County Archives). One of the two executors of the will was William Latane, who would buy Mahockney from Spencer Roane more than a decade later.

Likely a portrait of Spencer Roane’s son William. (Essex County Museum & Historical Society)

By this time, Spencer Roane was traveling in heady circles. While serving in the House of Delegates in 1783-84, he roomed in Richmond with Founding Father and Declaration of Independence signer Richard Henry Lee.  He began working as an aide to now-Governor Patrick Henry, and also married the famed orator’s daughter Anne Henry (1767-1799), on 7 September 1786.

As his legal career progressed and he was spending the bulk of his time in Richmond, on April 21, 1794 he sold Mahockney to William Latane, and moved a few miles west, first to Mount Clement on the Tappahannock-Richmond road, then on to the plantation at Spring Garden. In 1815 though he finally moved to downtown Richmond itself – where one of his neighbors was former college classmate and fellow Phi Beta Kappa member John Marshall. The two were not friendly neighbors.

Roane was appointed in December 1794 to the Virginia Court of Appeals (the state supreme court) by Governor Brooke, and went on to serve for 27 years. Perhaps “the law” was in the Roane blood; his second cousin Archibald Roane served on Tennessee’s state Supreme Court from 1815-1819.

According to numerous accounts, in 1801 Jefferson wanted to appoint Roane to the United States Supreme Court to fill the vacancy of John Jay, but lame duck President John Adams appointed John Marshall just before Jefferson’s inaugural (Prof. William E. Dodd, “Chief Justice Marshall and Virginia,” 12 American Historical Review 776, 1907).

Excerpts from the lengthy entry on Spencer Roane in the Yale Biographical Dictionary of American Law (ed. Roger K. Newman), found here on the web:

Spencer Roane (1762-1822). Judge and states’ rights advocate. Born in Tappahannock, Va., Roane grew up among the privilege and power of the Tidewater aristocracy that dominated Virginia politics throughout the late eighteenth century. His father, William, a prosperous planter and member of the House of Burgesses, imbued his second son with ardent patriotism and the virtue of public service. Roane graduated from the College of William and Mary in 1780 and studied law under George Wythe.

Admitted to the bar in 1782, Roane soon represented Essex County in the Virginia House of Delegates. He regarded the Virginia constitution as a limit upon governmental authority and opposed laws that weakened the distinction between church and state. While counselor to his future father-in-law, Patrick Henry, Roane argued the executive’s attempted removal of a judge violated separation of powers. As a judge on the General Court starting in 1789, in Kamper v. Hawkins (1793) he ruled unconstitutional a state law that gave district court judges equitable powers. An important harbinger of judicial review, Roane’s opinion posited that an independent judiciary functioned as an intermediary between the people and their government to preserve the boundaries of constitutional democracy.

In 1795, Roane joined the Virginia Court of Appeals, on which he served with prominence for the rest of his life. He sought to enhance the court’s prestige through unanimous opinions and extensive reliance upon precedent. Solicitous of vested rights, he also recognized the state’s burgeoning authority to regulate private enterprise in the public interest. Roane was deeply concerned with protecting state sovereignty through the mechanism of state courts, and in Hunter v. Martin (1814) he maintained that the U.S. Supreme Court lacked exclusive appellate jurisdiction over constitutional and federal issues that originated in state courts.

A Jeffersonian Republican, Roane remained active in Virginia politics. He wielded considerable influence as a founding member, with his cousins Thomas Ritchie and John Brockenbrough, of the Richmond Junto, a clandestine Republican organization. Articles he wrote for the Richmond Enquirer in 1819 and 1821 decried the Marshall Court’s nationalism and its expansion of federal jurisdiction through implied and incidental powers that Roane feared threatened the residual sovereignty of states that had formed a compact to delegate limited, enumerated authority to the federal government. While his incessant criticism infuriated John Marshall, Thomas Jefferson, to whom Roane became close late in life, admired his tenacity and strict constitutional construction.

Controversial and combative – his feud with St. George Tucker over court reform precipitated Tucker’s 1811 judicial resignation – Roane was a passionate advocate of states’ rights. He remained ambivalent about slavery, despite being a slaveholder, and he favored gradual emancipation; he abhorred northern abolitionists’ interference and opposed the Missouri Compromise. He also refrained from endorsing secession. Increasingly, he worried about federal tyranny that threatened states’ legitimacy. He was unsuccessful in attempts to curb Supreme Court appellate jurisdiction. Faithful to his Tidewater origins, Roane reposed his trust in the state as a sovereign entity in which a natural aristocracy governed by reason would balance private rights and public welfare.

The Battle between John Marshall and Spencer Roane

 

When Chief Justice John Marshall’s Supreme Court made its expansive rulings in Martin v. Hunter’s Lessee and McCulloch v. Maryland, those opposed to “federal overreaching” were appalled. As described in the book Dominion of Memories by Susan Dunn (Westview Press, 2007; found here): “Wide awake, Virginian Spencer Roane sprang into action, mobilizing opposition to the Supreme Court. Underneath his robes, the chief justice of the Virginia Supreme Court of Appeals was also a boss of bosses, running a political machine unrivaled in power and reach. The men he nominated to the state legislature were virtually certain of election, and the laws he favored almost always passed….”

 

With Marshall at the Supreme Court’s helm in Washington and Roane in the equivalent Virginia chair in Richmond, there began a titanic battle for the governing foundation of the new nation. Spencer Roane attacked the Marshall Court in a series of widely read essays, aided by his Essex allies William Brockenbrough, Thomas Ritchie, and John Taylor of Caroline County, with Thomas Jefferson in the background urging him on. As R. Kent Newmyer writes in his book John Marshall and the Heroic Age of the Supreme Court (LSU Press, 2007, found here):

“The attack was even more vehement, comprehensive, and long-lasting than [Marshall] feared… Just as clearly it was a confrontation of personalities and a war of reputations – and thus, as was the habit in Virginia, a matter of honor. This was more so when the chief justice of the United States took up his pen to refute and discredit the leading judge on the Virginia Court of Appeals… Spencer Roane, “the great judge” as Marshall sarcastically called him, was a formidable combatant. From his position on Virginia’s highest court, he spoke with special authority… Stripped of false politeness and phony compliments, Roane’s position was simply that Marshall was dead wrong and had to be brought down. Roane wanted the people of Virginia and the members of the General Assembly [to] ‘hear him for his cause.’ That famous phrase, coming from the Henry speech that launched the Revolution in Virginia in 1765, said it all. It was the Revolution all over again; Roane was Patrick Henry stepping forth to defend liberty from the evils of consolidating and corrupting power. The cause was the ‘Rights of The States,’ and of ‘The People.’ The text to be explicated was the Tenth Amendment, which saved to the states all powers not delegated to the national government…Roane’s rhetorical strategy throughout was to submerge his own voice in the collective wisdom of Virginia. The issue was tyranny.”

Chief Justice Marshall wrote to his Supreme Court colleague Joseph Story: “I think for coarseness & malignity of invention he [Spencer Roane] surpasses all party writers who have ever made pretensions to any decency of character… He will be supposed to be the champion of state rights, instead of being what he really is, the champion of dismemberment.” [Letter, Marshall to Story, June 15, 1821; cited in Harvard Law Review, Vol. 66, No. 7, May 1953, found here.]

In Roane’s defense against the federalist drive for centralized national power, Thomas Jefferson wrote in a letter to Archibald Thweat: “I know no one who, equally with Judge Roane himself, possesses the power and the courage to make resistance; and to him I look, and have long looked, as our strongest bulwark.” [Jefferson to Thweat, January 19, 1821; cited in Harvard Law Review, Vol. 66, No. 7, May 1953, found here.]

Roane in Retrospect

Spencer Roane died September 4, 1822 at Warm Springs, Virginia – which is now in West Virginia. Roane County, West Virginia (county seat: Spencer) was later named for the great jurist.

In 1934, the American Bar Association Journal carried an article by Charles Kerr of Washington DC:  If Spencer Roane Had Been Appointed Chief Justice instead of John Marshall (20 A.B.A. J. 155). The writer opined, “Had not the Senate been in control of the Federalists at the time of Marshall’s appointment, his nomination must certainly have been rejected, and the appointment have certainly gone to Spencer Roane, of Virginia, the known choice of Jefferson for the position. No event at the threshhold of our experimental democracy could have more completely changed our entire national course than the appointment of Roane instead of Marshall.”

The article concludes: “One hesitates even to contemplate the fate of the Nation if Spencer Roane had been appointed instead of him. To the student of the Constitution, no imagination can construct the fate of the Nation if there had been no Marbury v. Madison, no Cohens v. Virginia, no Dartmouth College case, no Fletcher v. Peck, no Martin v. Hunter’s Lessee, no Gibbons v. Ogden, no McCulloch v. Maryland. Never lived two beings that were more the pawns of Fate. The one secure in his position as the greatest jurist of all ages; the other once the idol of half the Nation, the original secessionist, the accepted constitutional interpreter of his party for a quarter or a century, now rests in an obscure country burying ground, his name and fame seldom recognized by or known to those who chance to read the simple inscription upon the modest stone that marks his grave.”