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The southern judicial tradition southern appellate judges and American legal culture in the nineteenth century

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 Title Page
 Acknowledgement
 Table of Contents
 Abstract
 1. Southerners, judges, and southern...
 2. Spencer Roane, Virginia legal...
 3. William Johnson and southern...
 4. Joseph Henry Lumpkin and the...
 5. Thomas Ruffin, judicial pragmatism,...
 6. John Hemphill, the civil law,...
 7. George Washington Stone, political...
 8. Emory Speer, new south nationalism,...
 9. A southern judicial tradition?...
 Bibliography
 Biographical sketch
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Material Information

Title: The southern judicial tradition southern appellate judges and American legal culture in the nineteenth century
Physical Description: ix, 378 leaves ; 29 cm.
Language: English
Creator: Huebner, Timothy S., 1966- ( Dissertant )
Hall, Kermit L. ( Thesis advisor )
Wyatt-Brown, Bertram ( Reviewer )
Turner, Eldon R. ( Reviewer )
Sommerville, C. John ( Reviewer )
Matheny, Albert R. ( Reviewer )
Spitzer, Anne L. ( Reviewer )
Publisher: University of Florida
Place of Publication: Gainesville, Fla.
Publication Date: 1993
Copyright Date: 1993

Subjects

Subjects / Keywords: Appellate courts -- History -- Southern States -- 19th century   ( lcsh )
Justice, Administration of -- History -- Southern States -- 19th century   ( lcsh )
Judges -- Southern States   ( lcsh )
Law -- Philosophy -- Southern States   ( lcsh )
History thesis Ph. D
Dissertations, Academic -- History -- UF
Genre: bibliography   ( marcgt )
non-fiction   ( marcgt )
theses   ( marcgt )
Spatial Coverage: United States -- South

Notes

Abstract: Historians of the South have generally avoided issues pertaining to the region's law and legal institutions, while American legal historians have long neglected the southern experience. Appellate judges in particular, both in and of the South, remain among the least-studied of topics. This examination of the careers of Judges Spencer Roane, William Johnson, Joseph Henry Lumpkin, Thomas Ruffin, John Hemphill, George Washington Stone, and Emory Speer helps reveal the impact of southern society and consciousness on the judicial process. During the course of the nineteenth century, southern appellate judges balanced the competing ideological pressures arising out of their broad inclusion in the American legal culture and their close connection to the southern political order. Strongly linked to the value, practices, and assumption of the American legal community, southern judges, in terms of their judicial style, their conception of the judicial role, and their substantive opinions, largely reflected national patterns of behavior. At the same time, because these judges invariably played an important role in the politics of their particular local communities and states, judicial behavior often mirrored the political order's rigid devotion to sectional orthodoxy on the issues of slavery and race. This study of the backgrounds, attitudes, and actions of seven of the South's leading appellate judges therefore shows that the southern judiciary system in most respects resembled that of the North. Only on the most sensitive political issues--slavery and race--did the South embody a unique judicial tradition. this singly distinctive feature of southern appellate judging scarred the region's reputation and ensured southern judges' subordinate position in the legal community over the next century. Thus, although many judges from the south made important contributions to the perception of southern inferiority has figured more prominently in the writing of American legal history than has the reality of the southern judiciary's accomplishments.
Statement of Responsibility: by Timothy S. Huebner.
Thesis: Thesis (Ph. D.)--University of Florida, 1993.
Bibliography: Includes bibliographical references (leaves 346-377).
General Note: Typescript.
General Note: Vita.

Record Information

Source Institution: University of Florida
Holding Location: George A. Smathers Libraries, University of Florida
Rights Management: All rights reserved, Board of Trustees of the University of Florida
Resource Identifier: aleph - 001947414
oclc - 31143104
notis - AKC3736
System ID: UF00067317:00001

Permanent Link: http://ufdc.ufl.edu/UF00067317/00001

Material Information

Title: The southern judicial tradition southern appellate judges and American legal culture in the nineteenth century
Physical Description: ix, 378 leaves ; 29 cm.
Language: English
Creator: Huebner, Timothy S., 1966- ( Dissertant )
Hall, Kermit L. ( Thesis advisor )
Wyatt-Brown, Bertram ( Reviewer )
Turner, Eldon R. ( Reviewer )
Sommerville, C. John ( Reviewer )
Matheny, Albert R. ( Reviewer )
Spitzer, Anne L. ( Reviewer )
Publisher: University of Florida
Place of Publication: Gainesville, Fla.
Publication Date: 1993
Copyright Date: 1993

Subjects

Subjects / Keywords: Appellate courts -- History -- Southern States -- 19th century   ( lcsh )
Justice, Administration of -- History -- Southern States -- 19th century   ( lcsh )
Judges -- Southern States   ( lcsh )
Law -- Philosophy -- Southern States   ( lcsh )
History thesis Ph. D
Dissertations, Academic -- History -- UF
Genre: bibliography   ( marcgt )
non-fiction   ( marcgt )
theses   ( marcgt )
Spatial Coverage: United States -- South

Notes

Abstract: Historians of the South have generally avoided issues pertaining to the region's law and legal institutions, while American legal historians have long neglected the southern experience. Appellate judges in particular, both in and of the South, remain among the least-studied of topics. This examination of the careers of Judges Spencer Roane, William Johnson, Joseph Henry Lumpkin, Thomas Ruffin, John Hemphill, George Washington Stone, and Emory Speer helps reveal the impact of southern society and consciousness on the judicial process. During the course of the nineteenth century, southern appellate judges balanced the competing ideological pressures arising out of their broad inclusion in the American legal culture and their close connection to the southern political order. Strongly linked to the value, practices, and assumption of the American legal community, southern judges, in terms of their judicial style, their conception of the judicial role, and their substantive opinions, largely reflected national patterns of behavior. At the same time, because these judges invariably played an important role in the politics of their particular local communities and states, judicial behavior often mirrored the political order's rigid devotion to sectional orthodoxy on the issues of slavery and race. This study of the backgrounds, attitudes, and actions of seven of the South's leading appellate judges therefore shows that the southern judiciary system in most respects resembled that of the North. Only on the most sensitive political issues--slavery and race--did the South embody a unique judicial tradition. this singly distinctive feature of southern appellate judging scarred the region's reputation and ensured southern judges' subordinate position in the legal community over the next century. Thus, although many judges from the south made important contributions to the perception of southern inferiority has figured more prominently in the writing of American legal history than has the reality of the southern judiciary's accomplishments.
Statement of Responsibility: by Timothy S. Huebner.
Thesis: Thesis (Ph. D.)--University of Florida, 1993.
Bibliography: Includes bibliographical references (leaves 346-377).
General Note: Typescript.
General Note: Vita.

Record Information

Source Institution: University of Florida
Holding Location: George A. Smathers Libraries, University of Florida
Rights Management: All rights reserved, Board of Trustees of the University of Florida
Resource Identifier: aleph - 001947414
oclc - 31143104
notis - AKC3736
System ID: UF00067317:00001

Table of Contents
    Title Page
        Page i
        Page ii
    Acknowledgement
        Page iii
        Page iv
        Page v
    Table of Contents
        Page vi
        Page vii
    Abstract
        Page viii
        Page ix
    1. Southerners, judges, and southern judges
        Page 1
        Page 2
        Page 3
        Page 4
        Page 5
        Page 6
        Page 7
        Page 8
        Page 9
        Page 10
        Page 11
        Page 12
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        Page 15
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        Page 17
        Page 18
        Page 19
        Page 20
        Page 21
        Page 22
        Page 23
    2. Spencer Roane, Virginia legal culture, and the defense of state judicial power
        Page 24
        Page 25
        Page 26
        Page 27
        Page 28
        Page 29
        Page 30
        Page 31
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        Page 64
        Page 65
        Page 66
        Page 67
        Page 68
        Page 69
        Page 70
    3. William Johnson and southern judicial nationalism on the U.S. Supreme Court
        Page 71
        Page 72
        Page 73
        Page 74
        Page 75
        Page 76
        Page 77
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        Page 113
        Page 114
        Page 115
    4. Joseph Henry Lumpkin and the vision for a new south
        Page 116
        Page 117
        Page 118
        Page 119
        Page 120
        Page 121
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        Page 161
        Page 162
    5. Thomas Ruffin, judicial pragmatism, and the politics of judging
        Page 163
        Page 164
        Page 165
        Page 166
        Page 167
        Page 168
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        Page 209
        Page 210
    6. John Hemphill, the civil law, and legal innovation on the Texas Frontier
        Page 211
        Page 212
        Page 213
        Page 214
        Page 215
        Page 216
        Page 217
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        Page 250
        Page 251
    7. George Washington Stone, political loyalty and the preservation of civility
        Page 252
        Page 253
        Page 254
        Page 255
        Page 256
        Page 257
        Page 258
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        Page 291
        Page 292
    8. Emory Speer, new south nationalism, and the politics of the federal judiciary
        Page 293
        Page 294
        Page 295
        Page 296
        Page 297
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    9. A southern judicial tradition? Appellate judging and southern distinctiveness
        Page 340
        Page 341
        Page 342
        Page 343
        Page 344
        Page 345
    Bibliography
        Page 346
        Page 347
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    Biographical sketch
        Page 378
        Page 379
        Page 380
Full Text













THE SOUTHERN JUDICIAL TRADITION:
SOUTHERN APPELLATE JUDGES AND AMERICAN LEGAL CULTURE
IN THE NINETEENTH CENTURY
















By

TIMOTHY S. HUEBNER


A DISSERTATION PRESENTED TO THE GRADUATE SCHOOL
OF THE UNIVERSITY OF FLORIDA IN PARTIAL FULFILLMENT
OF THE REQUIREMENTS FOR THE DEGREE OF
DOCTOR OF PHILOSOPHY

UNIVERSITY OF FLORIDA


1993





























Copyright 1993

by

Timothy S. Huebner















ACKNOWLEDGEMENTS

During the last three years, as I studied for my Ph.D. at

the University of Florida and researched this project at

universities and archives throughout the South, I learned a

number of important lessons--many of which had nothing at all

to do with the southern judiciary. The most simple, yet

important, of my realizations was that all good scholarship is

truly a collective effort. In every sense, this dissertation

is the product of the hard work and priceless wisdom of a

number of people.

Two individuals are due special mention. Kermit L. Hall,

my advisor at Florida, has assisted me not only in completing

this project, but in all of my efforts as a budding

academician. Ever since 1988, when he first telephoned to

invite me to the University of Florida, Kermit has shown a

sincere interest in my personal and professional development.

Even after he left Florida to seek his fortune elsewhere,

Kermit worked with me long distance to ensure the successful

completion of this dissertation. Looking back, the many hours

I spent working with him--attending his seminars, assisting

him with research, and discovering the discipline of American

constitutional and legal history--were the most rewarding of

my academic life.


iii








Bertram Wyatt-Brown, my first advisor in graduate school,

was equally instrumental in helping me to complete this

project and mature as a historian. Though at first skeptical

when I suggested Judge Joseph Henry Lumpkin as a master's

thesis topic, Bert continually supported my excursion into

legal history and offered important criticisms of my work,

especially on matters of style. His unique ability to turn my

sometimes dry and mechanical writing into fluid prose

continually amazed me. Most of all, I am grateful to him for

sticking by me and pushing the dissertation toward completion

during my final year of graduate school.

In addition to the superb guidance of my advisors, I was

blessed with the opportunity to establish many personal and

professional relationships at the University of Florida that

I hope will endure for a lifetime. Eldon Turner, Charles

Sidman, C. John Sommerville, Charles Thomas, Albert Matheny,

and Betty Corwine all inspired and encouraged me at various

points during my graduate career. At the same time, fellow

graduate students offered frequent counsel and criticism.

Daniel Stowell, Anders Lewis, Eric Rise, Chris Olsen, James

Mathis, Daniel Kilbride, and Nancy Slayden all read portions

of the manuscript and offered important insights. Friends

Mike Andrew, Thomas Muther, Charles Norris, and James Manley

ably assisted in the final stages of my research.

Countless library and archives staff members helped me to

unearth source material, while various institutions offered








financial assistance for research. In particular, I wish to

thank H. G. Jones of the North Caroliniana Society, Frances

Pollard and E. Lee Shepard of the Virginia Historical Society,

and Mary Ann Hawkins of the Southeastern Branch of the

National Archives. All seemed to take a special interest in

the history of southern judging, which they demonstrated

through sincere kindness and professionalism. Support from

the Department of History at the University of Florida, as

well as the University's Libraries, of course, was an

essential element in the research and writing process from

beginning to end. Melanie in Interlibrary Loan, as well as

"Dan and Dave" at the Circulation Desk, were of tremendous

assistance.

Finally, I owe the greatest debt to the members of my

family. While in Gainesville, I developed a real closeness to

my Aunt Joanne and Uncle Scott, who opened up their home and

hearts to me week after week. I shall never forget the

important part they played in my life these past five years.

But most important of all, of course, has been the role of my

parents. As I grow and mature, I realize more and more how

blessed I am to have these two truly wonderful people in my

life. Through word and example, they taught me the value of

hard work, decency, kindness, and love. My family--including

my brothers John and Jeff, sister Allison, and sister-in-law

Robin--have always been my strength. Without their love and

support, none of this would have been possible.

















TABLE OF CONTENTS


page

ACKNOWLEDGEMENTS............................. ............iii

ABSTRACT ............................................... viii

CHAPTERS

1 SOUTHERNERS, JUDGES, AND SOUTHERN JUDGES............. 1

Notes .................................................19

2 SPENCER ROANE, VIRGINIA LEGAL CULTURE, AND THE
DEFENSE OF STATE JUDICIAL POWER ................... 24

Notes ................................................62

3 WILLIAM JOHNSON AND SOUTHERN JUDICIAL NATIONALISM
ON THE U. S. SUPREME COURT .........................71

Notes.................................................109

4 JOSEPH HENRY LUMPKIN AND THE VISION FOR A
NEW SOUTH............................................ 116

Notes.................................................154

5 THOMAS RUFFIN, JUDICIAL PRAGMATISM, AND THE
POLITICS OF JUDGING................................. 163

Notes........................................ ........ 203

6 JOHN HEMPHILL, THE CIVIL LAW, AND LEGAL INNOVATION
ON THE TEXAS FRONTIER .............................211

Notes.................................................245

7 GEORGE WASHINGTON STONE, POLITICAL LOYALTY, AND
THE PRESERVATIONOF CIVILITY......................252

Notes.................................................287

vi









8 EMORY SPEER, NEW SOUTH NATIONALISM, AND THE
POLITICS OF THE FEDERAL JUDICIARY ................. 293

Notes.............................. ... ................. 333

9 A SOUTHERN JUDICIAL TRADITION? APPELLATE JUDGING
AND SOUTHERN DISTINCTIVENESS......................340

Notes....................................... ..........345

BIBLIOGRAPHY... ............................................346

BIOGRAPHICAL SKETCH........................................... 378











































vii
















Abstract of Dissertation Presented to the Graduate School
of the University of Florida in Partial Fulfillment of the
Requirements for the Degree of Doctor of Philosophy


THE SOUTHERN JUDICIAL TRADITION:
SOUTHERN APPELLATE JUDGES AND AMERICAN LEGAL CULTURE
IN THE NINETEENTH CENTURY

By

Timothy S. Huebner

December, 1993


Chairperson: Kermit L. Hall
Major Department: History


Historians of the South have generally avoided issues

pertaining to the region's law and legal institutions, while

American legal historians have long neglected the southern

experience. Appellate judges in particular, both in and of

the South, remain among the least-studied of topics. This

examination of the careers of Judges Spencer Roane, William

Johnson, Joseph Henry Lumpkin, Thomas Ruffin, John Hemphill,

George Washington Stone, and Emory Speer helps reveal the

impact of southern society and consciousness on the judicial

process.

During the course of the nineteenth century, southern

appellate judges balanced the competing ideological pressures

arising out of their broad inclusion in American legal culture

viii








and their close connection to the southern political order.

Strongly linked to the values, practices, and assumptions of

the American legal community, southern judges, in terms of

their judicial style, their conception of the judicial role,

and their substantive opinions, largely reflected national

patterns of behavior. At the same time, because these judges

invariably played an important role in the politics of their

particular local communities and states, judicial behavior

often mirrored the political order's rigid devotion to

sectional orthodoxy on the issues of slavery and race. This

study of the backgrounds, attitudes, and actions of seven of

the South's leading appellate judges therefore shows that the

southern judiciary in most respects resembled that of the

North. Only on the most sensitive political issues--slavery

and race--did the South embody a unique judicial tradition.

This single distinctive feature of southern appellate

judging scarred the region's reputation and ensured southern

judges' subordinate position in the legal community over the

next century. Thus, although many judges from the South made

important contributions to American legal development, the

perception of southern inferiority has figured more

prominently in the writing of American legal history than has

the reality of the southern judiciary's accomplishments.















CHAPTER 1
SOUTHERNERS, JUDGES, AND SOUTHERN JUDGES


During the course of the nineteenth century, southern

appellate judges balanced the competing ideological pressures

arising out of their broad inclusion in American legal culture

and their close connection to the southern political order.

Strongly linked to the values, practices, and assumptions of

the American legal community, southern judges, in terms of

their judicial style, their conception of the judicial role,

and their substantive opinions, largely reflected national

patterns of behavior. At the same time, because these judges

invariably played an important part in the politics of their

particular local communities and states, southern judicial

behavior often mirrored the political order's rigid devotion

to sectional orthodoxy on the issues of slavery and race.

This study of the backgrounds, attitudes, and actions of seven

of the South's leading appellate judges reveals that the

southern judiciary in most respects resembled that of the

North. Only on the most sensitive political issues--slavery

and race--did the South embody a unique judicial tradition.1

Historians have long neglected the constitutional and

legal history of the American South. While the southern

states continue to be the most examined region in the

1








2

literature of American history and while historical writing

about the nation's legal development has exploded during the

past few decades, these two historiographical trends have yet

to converge. Only the law of slavery--a significant, yet

small portion of the South's legal past--has developed a

substantial historical literature of its own.2

Southern historians have generally avoided issues

pertaining to the region's law and legal institutions. Legal

history hardly merits a footnote, for example, in John Boles'

and Evelyn Nolen's massive collection of essays on historical

writing about the South--evidence of the scant scholarly

interest in legal matters among historians of the South. Ever

since the publication of Charles Sydnor's classic 1940

article, "The Southerner and the Laws," historians of the

region have preferred to accept the notion that formal law and

legal institutions mattered little to most southerners. The

existence of slavery, the rural nature of southern life, the

unquestioned authority of planters, and an unwritten honorific

code, in Sydnor's words, "all united to restrict the segment

of life ruled by state law, thereby creating within the South,

even the oldest and most cultivated parts of it, an attitude

toward law that was much like that of the frontiersman."3

Southern historians, having passively acceded to Sydnor's

claims, have assumed that the region's legal system stood on

the periphery of southern society and remained the domain

purely of judges, lawyers, and legal experts. Regardless of








3

its validity, the presumptuousness of this assertion has

stymied scholarly investigation into many aspects of southern

legal history for the last five decades. In other words, by

framing the legal distinctions between the North and South in

such stark terms, southern historians have in large part

prevented themselves from comparing judicial behavior,

doctrinal development, or legal culture.

Legal historians, for their part, are equally guilty of

neglect. As Paul Finkelman and others note, most scholarship

in the history of American law has focused on the North,

especially the substantive legal development of Massachusetts,

New York, Pennsylvania, Illinois, and Wisconsin.4 At least

two factors account for this disparity. First, for the better

part of the twentieth century, lawyers, rather than

historians, chronicled most of the nation's constitutional and

legal past. Consequently, much of the earliest writing in

American legal history took on the form of "winner's"

history--that is, lawyers searched the past simply to discover

the origins of current legal doctrine. From this perspective,

only those historical developments that evolved into "good

law" were worthy of scholarly attention. Lawyers' domination

of legal history writing, combined with the fact that most

legal scholars lived and worked in the North--the second

factor--helped to confine the study of legal history to a

handful of northern states. The examination of northern law

by northern lawyers begat a literature of essentially northern








4

legal history.5 Even contemporary legal historians--trained

as historians--have largely continued in this vein. Most of

James Willard Hurst's work, for example, focuses on his home

state of Wisconsin, while Morton J. Horwitz's prize-winning

book, The Transformation of American Law, 1780-1860, omits the

southern experience almost entirely. As a result, over the

past few decades northern legal history has come to be equated

with American legal history.6

This study attempts to bridge the gap between southern

scholars' indifference toward the law and legal historians'

disregard of the South. As the chief agents and interpreters

of law, judges both in and of the South, here defined as the

eleven states of the Confederacy, remain among the least-

studied of topics by both southern and legal historians.

There are virtually no biographies of southern judicial

figures to compare with the existing scholarship on such

northern jurists as James Kent, Joseph Story, and Lemuel

Shaw.7 Historians of the South, though lavishing attention

on planters and politicians, have largely overlooked the

region's professional class, including its judges and lawyers.

Legal historians, for their part, have shown equally little

concern for the study of the southern bench.8 Yet, an

investigation of the judiciary offers insights into the

attitudes, assumptions, and behaviors associated with law and

legal institutions. By devoting particular attention to

judges' personal backgrounds and to both the style and








5

substance of their opinion-writing in the areas of public and

private law, this examination assesses the impact of southern

culture and consciousness on the judicial process.9

What follows, therefore, is not lawyers' legal history.

Rather than explore the origins of modern day legal

development in the work of the nineteenth century southern

judiciary, this effort seeks an understanding of legal

culture--as one scholar has defined it, "the matrix of values,

attitudes, and assumptions that have shaped both the operation

and the perception of the law."'" In this respect, this work

resembles the vast body of literature on the history of slave

law. Historians and legal scholars, after all, have devoted

their energies to that topic not because the law of slavery

continues to be a relevant part of the American legal order,

but because their work demonstrates the ways in which

antebellum white southerners perceived African-Americans and

gave legal sanction to their peculiar institution. In the

same way, a study of nineteenth century southern judges

reveals the ideology of those responsible for creating legal

categories and effecting social change. What matters above

all, therefore, is not whether the work of southern judges

reached beyond the nineteenth century South. Each of the

following jurists would merit examination even if none of his

opinions were ever subsequently cited outside his home state.

A greater understanding of legal culture--not the discovery of

the origins of modern law--is the purpose of what follows.








6

In the broadest sense, southern appellate judges operated

within the confines of American legal culture. This

increasingly nationalized legal tradition grew out of the

English common law. The experience of the American Revolution

and the framing of the Constitution further shaped it, and it

found additional strength in nineteenth century state

constitutions, 'reported judicial opinions, and a growing

number of law magazines, books, and treatises. Blackstone,

Coke, Jefferson, Madison, Hamilton, Tucker, Marshall, Kent,

Story, Taney, and Cooley--a mixture of Englishmen,

northerners, and southerners--were the main sources of this

tradition. Their ideas and behavior shaped the foundation for

American legal culture and formed the most potent sources of

authority in legal discourse. Nineteenth century southern

judges, schooled from the pages of Blackstone and Coke, raised

on tales of the American Revolution, inculcated with the

ideals of the Declaration of Independence and the

Constitution, and impressed with the judicial leadership of

Chief Justices Marshall and Taney, imbibed fully an

increasingly national legal culture that knew no state or

regional boundaries. In a young nation lacking the unifying

presence of monarchy, the Constitution in particular served as

a powerful connective symbol during much of the nineteenth

century, especially for the legal community.11 Even when the

southern states seceded and formed their own government, they

crafted a constitution remarkable in its similarity to the








7

U. S. Constitution. State judges in the Confederacy continued

to look to the decisions of the U. S. Supreme Court and

northern state tribunals, in addition to their own courts, as

key sources of authority.12 Although natives of towns and

villages throughout the South, southern judges could not help,

even in secession, to seek legal ideas beyond their own

boundaries.

Because they drew intellectual sustenance from the

culture of the American legal community, southern judges

adopted styles of reasoning and conceived of their function in

ways that often mirrored the northern experience. Like their

counterparts to the north, southerners actively sought to

increase their judicial power and, for much of the nineteenth

century, thought of themselves as policy-makers. Southern

state judges during the late eighteenth and early nineteenth

century carved out a unique place for themselves in their

respective state constitutional orders by claiming authority

to review legislative acts. All along the southeastern

seaboard, these appeals judges challenged legislative

dominance by defining themselves as the guardians of their

respective state constitutions and as the preservers of

popular sovereignty. As the century wore on, southern jurists

adopted what Morton J. Horwitz describes as "an instrumental

conception of law." In the South as well as the North, judges

actively used their position to bring about social change by

both overturning ancient, inapplicable doctrines and creating








8

new legal principles reflective of the age. Even in the late

nineteenth century, when many judges retreated into a

"formalism" that viewed an active judiciary with suspicion, at

least some southerners joined other American judges in using

the injunction and other modes of judicial power to resolve

the social and economic conflicts created by corporate

capitalism.13 In sum, throughout the course of the century,

southerners exhibited no less of a tendency to use their

judicial power and conceived of their role no differently than

did those north of the Mason-Dixon Line.

In terms of substantive opinions in such areas as social

control and distributive justice, southern jurists also

conformed to national patterns. Although historians have made

much of southern violence and lawlessness, existing

scholarship has yet demonstrated that southern appellate

judges reflected this supposedly distinctive feature of

southern culture.14 Even the institution of slavery, which

created a system of informal justice on the plantation, did

not diminish the judiciary's legal sensibilities. Study after

study has demonstrated that southern judges displayed a

strikingly high regard for due process in criminal cases

involving slaves, a fact that suggests southerners' adherence

to a broad set of national criminal legal norms.'5 On the

whole, southern appellate judges adhered to traditional

English and American concepts of criminal justice, many of

which emerged from Enlightenment criminological thought. Most








9

southern states shared in the first wave of criminal law

reform that swept the nation during the revolutionary and

early national period, much of it inspired by the writings of

Italian legal thinker Cesare Beccaria. In fact, the first

North American English edition of Beccaria's influential On

Crimes and Punishments probably appeared in Charleston, South

Carolina, rather than in New York, Philadelphia, or Boston.16

Southern jurists, in other words, were fully conversant with

the broader ideas and developments in criminal justice and

social control.

In terms of distributive justice, southern jurists

utilized the law as an instrument for "the release of

individual creative energy.""7 During the antebellum period

particularly, southern judges combined a market ideology with

an instrumental conception of the law that sanctioned a wide

range of judicial innovations facilitative of economic growth

and development. At the federal level, southerners

contributed to the Supreme Court's sweeping national agenda of

economic expansion by embracing a broad interpretation of the

Constitution's Commerce Clause, so as to prevent individual

state interference with the free flow of interstate trade. At

the state level, in the meantime, judges contributed to a

growing national body of contract law that emphasized a "will"

theory of contracts over an older framework of implied

agreements, promoted competitive market principles over

traditional notions of a "just price," and supported new








10

investment and technological advancement in the public

interest over the protection of vested rights. Employing

these innovations during the antebellum period, judges

attempted to strike a delicate balance between the South's

commercial and slaveholding agricultural interests. After the

Civil War, many southerners cooperated in using the

Constitution's newly-ratified Fourteenth Amendment to protect

economic activity from state regulation, while they expressed

more favorable attitudes toward federal efforts to regulate

large corporations in the form of the Interstate Commerce Act

and the Sherman Antitrust Act. Southern jurists, in short,

reflected national trends in much of their thinking about the

economy.

Thus, nineteenth century southern jurists both drew from

and contributed to an increasingly integrated American legal

culture. Southern judges neither imitated their northern

brethren, nor did they restrict their intellectual universe to

that of their own section. Instead, on the whole, members of

the South's appellate judiciary were educated, sophisticated,

talented individuals, who kept current with broad trends and

developments in American legal thinking. While maintaining

close ties to their local communities, many lived for a short

time or travelled to the nation's capital, to northern

universities or cities, or even to England, where they

absorbed fresh perspectives and new ideas. Likewise, when

they composed their opinions, southern jurists








11

wrote--particularly as reported opinions proliferated late in

the century--for a larger audience than their own state's

legal community. Often, they promoted their ideas by writing

in newspapers or national law journals, or by speaking at

commencements, bar association meetings, and political

gatherings throughout the nation. They were, to be sure, part

of the small group of privileged white men who dominated the

creation of legal discourse in the nineteenth century United

States.

Although they belonged to this privileged realm, at a

more basic level they lived and operated within a southern

political order that also shaped their public lives. Above

all, the issue of slavery defined and dominated the arena of

antebellum southern politics. As William Cooper notes, from

the 1830s to the 1850s both Whigs and Democrats engaged in

"sectional one-upsmanship," as members of each party tried to

present themselves as the most effective protectors of slavery

and southern rights within the Union." While emancipation

freed the slaves, it did not liberate the South from its

obsession with race-based politics. During the late

nineteenth century, the slightest evidence of liberal leanings

on racial issues still could potentially spell disaster for a

southern politician. Though southern judges were not

politicians, most began their public careers in state

legislatures or Congress, and some maintained visible roles in

party politics after ascending to the bench. Even those who








12

made an effort to divorce themselves from involvement with the

formal institutions of partisan activity could not separate

themselves from the South's political culture. Particularly

in the antebellum period, the advent of an increasingly

democratic polity inclined toward judicial election and

accountability meant that southern judges had to respond to at

least the most basic demands of the political order.19

Still, southern judges displayed what G. Edward White

describes as "a delicate and unique relation to politics."20

On the one hand, the process of decision making and the

structure of legal institutions commanded judicial adherence

to norms that existed apart from the political system. On the

other hand, personal ties to political leaders and the larger

ramifications of appellate opinions embedded judges in the

realm of politics.

Because of their political attachments, southern judges,

despite their connection to a Northern legal community that

ultimately expressed hostility to the interests of

slaveholders, maintained a solid commitment to the peculiar

institution. Antebellum southern jurists, nearly all of them

slaveowners, gradually came to adopt a view that gained

widespread acceptance in the South by the 1840s--that the

institution of slavery was a positive good for both whites and

blacks. In general, judges demonstrated this conviction not

only by restricting opportunities for manumission, but also by

adopting the rhetoric of the pro-slavery movement. Judges, in








13

other words, looked outside of the law and embraced

contemporary religious, historical, and social explanations

for why Africans needed to be held in servitude. Being

closely connected to southern political culture, they also

understood their decisions within the South's declining

political power within the Union. As southern politicians

viewed the abolitionists as an increasing threat to the

interests of slaveholders, southern jurists shaped their

opinions to meet the crisis.

Despite the impact of southern politics, jurists often

took positive steps toward recognizing the slave's humanity.

Unlike politicians, judges could hide behind a "mask of the

law" and expand the scope of legislative enactments to both

acknowledge the slave's humanity and guarantee a certain

degree of fundamental fairness.21 As previously noted, this

was particularly true in criminal cases. Recognition of

humanity, however, neither necessarily guaranteed justice for

slaves nor did it ever endow them with equality. In many

criminal cases, for instance, judicial acceptance of slaves as

moral, rational beings was merely a way of demanding more

responsibility of them.22 Moreover, a traditional

paternalism circumscribed even the most striking judicial

statements about the rights and humanity of slaves. Judges

often granted justice to slaves, in other words, because

jurists believed they were pitiful, improvident creatures in

need of white guidance. Indeed, paternalism constituted an








14

essential element of the pro-slavery formula, as judges hoped

to challenge northern reformers by portraying the demand for

abolition as a call for un-Christian irresponsibility toward

blacks.23 Even in decisions seemingly beneficial to slaves,

therefore, the behavior of southern jurists reflected the

political order's rigid devotion to pro-slavery ideology.

After the Civil War, politics continued to dictate

adherence to sectional orthodoxy on racial issues. In the

post-bellum political universe, judges ensured that the

Reconstruction Amendments and civil rights measures remained

ineffective and guaranteed that new forms of racial

oppression--debt peonage and lynching, for example--continued

unabated. Like politicians of the day, if southern judges

stepped outside of white convention on such matters, they

invited the wrath of the region's power structure. Although

there were notable exceptions--instances in which late

nineteenth century African-Americans achieved a full measure

of justice at the hands of the judiciary--the political

fallout from such racially enlightened judicial decisions

demonstrates just how infrequent they must have been. Again,

jurists acted in accordance with and in response to the

elements of southern political culture.

Thus, southern judges were in many respects caught

between two worlds. On one side was the world of the American

appellate judge. That is, as members of the judiciary they

functioned within the broad confines of a national legal








15

culture, a matrix of ideas and assumptions held together by a

common past and a unified basis of authority. On the other

side was the dominion of slave society and its special

political concerns. Because they played such an integral role

in the region's power structure, judges were part of a

political culture that placed a high premium on devotion to

slavery and racial control. Tensions arose out of these dual

loyalties, but to nineteenth century southern jurists these

divisions were not as stark as they may appear a century

later. In some instances, southern judges did not conceive of

their connections and commonalities with the northern legal

community as necessarily conflict-ridden, or even unusual. As

David Potter argued many years ago, nationalism and

southernism were not mutually exclusive and, in fact, existed

alongside each other. "Copious evidence shows," he concluded,

"that national as well as local loyalties prevailed in both

the North and the South."24

The following chapters explore this interaction of

nationalism and sectionalism in the South through the lives

and major opinions of seven of the region's leading appellate

judges. Spencer Roane, William Johnson, Joseph H. Lumpkin,

Thomas Ruffin, John Hemphill, George W. Stone, and Emory Speer

all were natives of the South and served lengthy terms of

service on either the state or federal bench during the

1800s.25 All wrote numerous decisions on a variety of issues

and exerted a considerable influence on the development of law








16

within their own states or the United States. Most

importantly, all exhibited the elusive qualities of judicial

leadership--that is, they served as principal sources of ideas

and doctrine, found ways to persuade their judicial colleagues

of the correctness of their views, and served as mentors for

more inexperienced members of the bench and bar. In many

respects, these judicial leaders set the tone for appellate

judging throughout the South. Their social standing--not just

their legal acumen--assisted them in this regard. Most of

them came from well-respected families, known, if not for

their connections to the legal profession, then for their

wealth, their religiosity, or their solid values. Although no

exact criteria existed for the selection of these individuals,

they represented a variety of states and local

communities--from Tidewater Virginia to the Texas

frontier--and thus embodied the richness and diversity of

southern life. Various arguments might well be made for the

inclusion of others--St. George Tucker, William Gaston, Nathan

Greene, William Sharkey, to name a few--but the seven judges

here examined offer the kind of wide perspective on the

southern judiciary that makes broad generalization

possible.26

Chapters Two and Three discuss the themes of southern

constitutionalism and national supremacy in the early

republic. The careers of Spencer Roane and William Johnson

demonstrate the immense growth of judicial power in the early








17

national period. At the state level, Roane's efforts to

consolidate the power of the Virginia Court of Appeals fit

with larger themes in the history of American state courts

during that period. Roane championed judicial review,

established the practice of rendering unanimous decisions, and

relied on precedent to solidify his court's prestige. Because

his efforts collided with the similar course being charted by

the U. S. Supreme Court during the period, Roane engaged in a

lengthy political debate with Chief Justice John Marshall over

the nature of federalism. Johnson, meanwhile, collaborated

with Marshall in expanding the Supreme Court's power and in

creating a commercial republic. Johnson's ties to Marshall

and his three-decades long tenure on the federal bench

imparted to him a strong nationalistic outlook that at times

conflicted with the political values of his home state of

South Carolina. Thus, devotion to principle, as well as their

own judicial institutions, led both Roane and Johnson into the

realm of politics.

Chapters Four, Five, and Six focus on southern state

judges in an age of economic expansion and sectional division.

Joseph H. Lumpkin of Georgia, Thomas Ruffin of North Carolina,

and John Hemphill of Texas all demonstrate the policy-making

character of the judiciary during this crucial period in

American legal development, as well as the particular tensions

experienced by southern judges during the sectional crisis.

Undergirded by an evangelical vision for a new South, Lumpkin








18

actively shaped Georgia contract law so as to promote

commercial and industrial growth at the same time that he

vigorously sought to protect slavery. Ruffin, guided more by

an acute awareness of political circumstances than by a

particular ideological perspective, sought to preserve

judicial independence, promote the growth of railroads, and

preserve a rigid code of conduct for North Carolina's slaves.

Hemphill, the most unusual of the three, left his home state

of South Carolina to settle in Texas, where he emerged as a

judicial innovator on such matters as the homestead exemption

for debtors and the property rights of married women.

Although Ruffin agonized over the question of secession more

than the others, all of these state judges ended up

enthusiastically endorsing separation and civil war.

Chapters Seven and Eight explore southern judges during

the late nineteenth century. The careers of George W. Stone,

a state judge in Alabama, and Emory Speer, a federal judge in

Georgia, show the politics of national and sectional loyalties

on the bench during and after the Civil War. In the midst of

the conflict, Stone drew upon nationalistic arguments and

Marshall Court decisions to buttress the shaky position of the

Confederate government in a series of conscription cases.

After the war, Stone, a staunch Democratic partisan, remained

firmly entrenched in southern political culture and in most

instances worked to prevent the expansion of civil rights for

the freed slaves. In contrast, Speer, himself a Civil War








19

veteran, adopted a broad nationalistic vision for the nation

after the war. A renegade who affiliated with the

Republicans, Speer guaranteed the most basic constitutional

rights of African-Americans in a series of habeas corpus and

peonage cases, but ultimately paid the price for such heresy

by becoming the subject of a Justice Department investigation

for alleged misconduct. The careers of both, therefore,

confirm the continuing significance of the politics of

sectionalism and race. Aside from these issues, Stone and

Speer made important judicial contributions to, respectively,

the law of homicide and the contemporary interpretations of

national economic regulation.

In a broad sense, the following pages demonstrate that

southern judges were both southerners and judges. They were

participants in the political cultures of their states and

localities at the same time that they were full partakers in

a larger American legal community. The working out of these

sometimes conflicting loyalties is the subject of what

follows.



Notes


1. For the purposes of this study, the term "American" does
not include the states and territories of the Far West. This
region perhaps possessed a legal culture of its own, although
much more research is still necessary to assess the validity
of this claim. See Kermit L. Hall, "The Magic Mirror and the
Promise of Western Legal History at the Bicentennial of the
Constitution," Western Historical Quarterly, 18 (October,
1987), 429-435.










2. See, e.g., Mark Tushnet, The American Law of Slavery, 1810-
1860: Considerations of Humanity and Interest, (Princeton, N.
J.: Princeton University Press, 1981); A. E. Keir Nash,
"Fairness and Formalism in the Trials of Blacks in the State
Supreme Courts of the Old South," Virginia Law Review, 56
(February, 1970), 64-100; idem, "A More Equitable Past?
Southern Supreme Courts and the Protection of the Antebellum
Negro," North Carolina Law Review, 48 (February, 1970), 197-
242; idem, "Reason of Slavery: Understanding the Judicial
Role in the Peculiar Institution," Vanderbilt Law Review, 78
(January, 1979), 7-218; Daniel Flanigan, "Criminal Procedure
in Slave Trials in the Antebellum South," Journal of Southern
History, 40 (November, 1974), 537-564; Paul Finkelman, An
Imperfect Union: Slavery, Federalism, and Comity, (Chapel
Hill, N.C.: University of North Carolina Press, 1981).

3. John B. Boles and Evelyn Thomas Nolen, Interpreting
Southern History: Historiographical Essays in Honor of
Sanford W. Higginbotham, (Baton Rouge: Louisiana State
University Press, 1987), 96-98, 155, 215-218; Charles Sydnor,
"The Southerner and the Laws," Journal of Southern History, 6
(February, 1940), 12.

4. Paul Finkelman, "Exploring Southern Legal History," North
Carolina Law Review, 64 (November, 1985), 78; Kermit L. Hall,
The Magic Mirror: Law in American History, (New York: Oxford
University Press, 1989), viii.

5. Robert Gordon, "J. Willard Hurst and the Common Law
Tradition in American Legal Historiography," Law and Society
Review, 10 (Fall, 1975), 9-55, esp. 14-25; Finkelman,
"Exploring," 83-84.

6. See, e.g., J. Willard Hurst, Law and the Conditions of
Freedom in the Nineteenth Century United States, (Madison,
Wis.: University of Wisconsin Press, 1956); idem, Law and
Economic Growth: The Legal History of the Wisconsin Lumber
Industry, (Cambridge, Mass.: Harvard University Press, 1964).
Morton J. Horwitz, The Transformation of American Law, 1780-
1860, (Cambridge, Mass.: Harvard University Press, 1977).

7. Finkelman, "Exploring," 81; James W. Ely, Jr. and David J.
Bodenhamer, "Regionalism and the Legal History of the South,"
in Bodenhamer and Ely, eds., Ambivalent Legacy: A Legal
History of the South, (Jackson, Miss.: University Press of
Mississippi, 1984), 14-17; John Horton, James Kent: A Study
in Conservatism, (New York: Appleton, 1939); R. Kent Newmyer,
Supreme Court Justice Joseph Story: Statesman of the Old
Republic, (Chapel Hill, N.C.: University of North Carolina
Press, 1985); Leonard W. Levy, The Law of the Commonwealth and
Chief Justice Shaw, (New York: Oxford University Press,
1957).










8. For the literature on planters and politicians, see
Randolph B. Campbell, "Planters and Plain Folks: The Social
Structure of the Antebellum South," 48-77, Drew G. Faust, "The
Peculiar South Revisited: White Society, Culture, and
Politics in the Antebellum Period, 1800-1860," 78-119, and
Joel Gray Taylor, "The White South From Secession to
Redemption," 162-198, all in Boles and Nolen, eds.,
Interpreting Southern History. On the American judiciary, see
G. Edward White, The American Judicial Tradition: Profiles of
Leading American Judges, (New York: Oxford University Press,
1988).

9. Many have argued effectively for the integration of public
and private law themes. See particularly Harry N. Scheiber,
"American Constitutional History and the New Legal History:
Complementary Themes in Two Modes," Journal of American
History, 68 (September, 1981), 337-350.

10. Hall, Magic Mirror, 6.

11. Maxwell Bloomfield, American Lawyers in a Changing
Society, 1776-1876, (Cambridge, Mass.: Harvard University
Press, 1976), 142-155; Grant Gilmore, The Ages of American
Law, (New Haven, Conn.: Yale University Press, 1977), 25-36;
Perry Miller, The Life of the Mind in America, From the
Revolution to the Civil War, (New York: Harcourt, Brace, and
World, Inc., 1965), 131-155; Russel Blaine Nye, Society and
Culture in America, 1830-1860, (New York: Harper and Row,
1974), 1-10.

12. On the Confederate Constitution, see Marshall L. DeRosa,
The Confederate Constitution of 1861: An Inquiry into
American Constitutionalism, (Columbia, Mo.: University of
Missouri Press, 1991); J. G. de Roulhac Hamilton, "The State
Courts and the Confederate Constitution," Journal of Southern
History, 4 (November, 1938), 425-448; S. D. Brummer, "The
Judicial Interpretation of the Confederate Constitution," in
Studies in Southern History, (New York: Columbia University
Press, 1914), 107-133.

13. Horwitz, Transformation, 1-30, 253-266; Hall, Magic
Mirror, 221-223.

14. While southern appeals judges largely remain to be
investigated in this area, the work that has been done on the
judiciary--at the trial rather than the appellate level--shows
that an inability to secure judgements against criminals was
not a distinctive feature of the southern legal order, but was
characteristic of "rural, pre-bureaucratic" communities
throughout the country. See Bodenhamer and Ely, "Regionalism
and Legal History," 20; Bodenhamer, "The Efficiency of










Criminal Justice in the Antebellum South," Criminal Justice
History, 3 (1983), 81-95.

15. See, most notably, Flanigan, "Criminal Procedure in Slave
Trials," 537-564.

16. Kathryn Preyer, "Crime, the Criminal Law and Reform in
Post-Revolutionary Virginia," Law and History Review, 1
(Spring, 1983), 53-85; Erwin C. Surrency, "The First American
Criminal Code: The Georgia Code of 1816," Georgia Historical
Quarterly, 63 (Winter, 1979), 420-432; Cesare Beccaria, On
Crimes and Punishments, trans. by Henry Paulucci,
(Indianapolis: Bobbs-Merrill Co., 1963, orig. pub., 1764);
Marcello Maestro, Cesare Beccaria and the Origins of Penal
Reform, (Philadelphia: Temple University Press, 1973), 43,
138-143.

17. J. Willard Hurst, Law and the Conditions of Freedom in the
Nineteenth Century United States, (Madison, Wis.: University
of Wisconsin Press, 1956), 7.

18. William J. Cooper, The South and the Politics of Slavery,
1828-1856, (Baton Rouge, La.: Louisiana State University
Press, 1978), xi. See also Kenneth Greenberg, Masters and
Statesmen: The Political Culture of American Slavery,
(Baltimore: Johns Hopkins University Press, 1985).

19. From 1846 to 1860, four southern states incorporated
provisions in their constitutions mandating the popular
election of judges. Even in states that did not adopt
judicial election, partisans vigorously debated the power and
accountability of the courts. See Kermit L. Hall, "The
Judiciary on Trial: State Constitutional Reform and the Rise
of an Elected Judiciary, 1846-1860," The Historian, 45 (May,
1983), 337-354.

20. White, American Judicial Tradition, 2.

21. On this notion, see John T. Noonan, Persons and Masks of
the Law: Cardozo, Holmes. Jefferson, and Wythe as Makers of
the Masks, (New York: Farrar, Straus, and Giroux, 1976);
Hall, Magic Mirror, 133-134.

22. Andrew Fede, "Toward a Solution of the Slave Law Dilemma:
A Critique of Tushnet's 'The Law of American Slavery," Law and
History Review, 2 (Fall, 1984), 301-320.

23. Eugene D. Genovese, Roll, Jordan, Roll: The World the
Slaves Made, (New York: Random House, 1972), 76.










24. David M. Potter, "The Historian's Use of Nationalism and
Vice Versa," in The South and the Sectional Conflict, (Baton
Rouge, La.: Louisiana State University, 1968), 75.

25. Speer's experience as an appeals judge was limited to his
occasional duties as judge of the Fifth Circuit Court of
Appeals and he was, therefore, primarily a trial judge.
However, this study focuses on those cases in which Speer
exercised power in a way similar to appellate judges--in
rulings involving habeas corpus and equitable remedies.

26. Charles T. Cullen, St. George Tucker and the Law in
Virginia, (New York: Garland Publishing Co., 1987); Joseph
Herman Schauinger, "William Gaston and the Supreme Court of
North Carolina," North Carolina Historical Review, 21 (April,
1944), 97-117; Arthur F. Howington, "'Not in the Condition of
a Horse or an Ox': Ford v. Ford, the Law of Testamentary
Manumission and the Tennessee Courts' Recognition of Slave
Humanity," Tennessee Historical Quarterly, 34 (Fall, 1975),
249-263, (on Greene).















CHAPTER 2
SPENCER ROANE, VIRGINIA LEGAL CULTURE, AND THE
DEFENSE OF STATE JUDICIAL POWER



While I would consent to support the federal
judiciary within the states in all its legitimate
objects, I would not set up without necessity a
batch of courts strong enough to withdraw from the
state courts their proper powers.
Spencer Roane, 18191


As a leading Virginia jurist from 1789 to 1822, Spencer

Roane figured prominently in the major constitutional, legal,

and political debates of his day. A renowned critic of

Marshall Court nationalism, Roane is best remembered for his

political activities--for opposing the Chief Justice through

a series of newspaper essays that championed the theory of

state sovereignty. More often than not, historians, because

they have focused on Roane's battle with John Marshall, have

portrayed Roane as a state political boss--head of the

so-called "Richmond Junto"--rather than as a member of one of

the nation's most powerful judicial tribunals.2 Yet, Roane's

record constituted more than the partisan sniping that filled

the pages of the early nineteenth century Richmond Enquirer.

As a judge of the Virginia General Court for five years and

the most prominent member of the state's Supreme Court of

Appeals for twenty-seven, Roane played an important role in

24








25

establishing the independence, power, and prestige of the

state's judiciary by advancing the concept of judicial review,

promoting unanimity among the judges, and deciding cases on

the basis of settled legal precedents. Because his famous

contest with Marshall over the nature of federalism originated

as a battle over judicial power and jurisdiction within

Virginia, Roane's views as a political writer can only be

understood within the context of his work as a state judge.

Roane's legacy to the southern judicial tradition,

therefore, stems from his experience on the state bench as

well as his foray into national politics. Roane's judicial

activities represent a broader development that occurred

throughout the South and the North during the late eighteenth

and early nineteenth centuries. During this period, judges at

both the state and federal levels asserted their authority

within their respective constitutional systems, particularly

through exercising judicial review. Armed with this power,

courts sought to defend written constitutions and popular

sovereignty from the dangers of legislative excess. As a

judge, Roane made an important contribution to this national

trend toward an independent and powerful judiciary. As a

political theorist, Roane's legacy to the southern judicial

tradition derived from his use of the theory of state

sovereignty as a buffer against national judicial power.

Although Roane himself initially turned to this doctrine only

as a means of defending the position of the Virginia Court of








26

Appeals in relation to the U. S. Supreme Court, subsequent

southern partisans--both politicians and judges--latched onto

this notion as a means of expressing state power in opposition

to an oppressive national government. Later writers, in fact,

exaggerated Roane's use of state sovereignty as a defense of

slavery or a uniquely southern political agenda. Roane's

efforts as a champion of the power of the Virginia Court of

Appeals, therefore, incorporate both his judicial and

political legacies.

Born in 1762 in Essex County, Virginia, the second son of

William Roane Jr. and Elizabeth Ball Roane, Spencer Roane came

from a wealthy, well-connected Tidewater family of Scotch

origin and grew up within the context of Virginia's "tobacco

culture."3 Although William Roane Jr., owner of plantations

in both Essex and a neighboring county, had succeeded in

making a comfortable life for his family, by the 1760s times

were changing for the Tidewater gentry. A century of tobacco

farming in Essex County had adversely affected the fertility

of the soil, and fresh lands to the west and south began

producing a better leaf for a more competitive price.

Planters, whose lives had centered around tobacco for

generations, found themselves faced with having to find new

staple crops like cotton, wheat, and corn.4 Moreover, growing

planter indebtedness to English merchant houses foreshadowed

trouble with Great Britain. As international economic

tensions rose, British creditors called in longstanding debts,








27

causing Virginia's gentry to feel betrayed and dishonored.5

By the early 1770s, the War for Independence was on the

horizon.

During this decade of economic uncertainty and

revolutionary tension, William Roane Jr. sought to ensure a

successful future for his young son by providing the best

education available. After receiving intense preparation

under the guidance of private tutors, a common practice among

the Virginia gentry, Spencer Roane entered William and Mary

College in 1779.6 At that time, the college was undergoing

a change in curriculum. Thomas Jefferson, as governor and a

member of the board of trustees, had abolished some of the

college's traditional disciplines in favor of professorships

in "law and police," medicine, and modern languages; of these,

the law professorship, under the leadership of Jefferson's

mentor George Wythe, was the most successful. Jefferson's

educational reforms were an integral part of a larger

goal--shared by Wythe--to reform the commonwealth's legal

system. Both men believed that, in order to secure a legal

culture compatible with the ideals of revolutionary

republicanism, Virginia required a professionally-trained

bench and bar composed of men both technically skilled and

liberally educated.7 At William and Mary, Roane began his

study of the law, thus initiating a lifelong membership among

the commonwealth's legal community.








28

As a teacher and mentor, Wythe played a key role in

Roane's professional development. Born on a Virginia

plantation in 1726, Wythe had risen rapidly at the bar and

figured prominently in revolutionary politics. Before

assuming his position at William and Mary, he had earned his

reputation as a signer of the Declaration of Independence, a

Speaker of the House of Delegates, and as one of three judges

of the newly established High Court of Chancery. During the

late 1770s, in an attempt to adjust Virginia to its new status

as an independent state, Wythe had joined Edmund Pendleton and

Jefferson in undertaking a comprehensive review and revision

of the laws of the commonwealth.8 Having brought a wealth of

legal knowledge and experience to his position as a law

professor, Wythe succeeded brilliantly with his students. He

lectured twice a week, held moot court once or twice a month,

and presided weekly over a mock legislature.9

Under Wythe's guidance, Roane's legal education was

superb. Aside from studying Blackstone and the laws of

Virginia, Roane delved deeply into the works of all the major

legal thinkers of the day, including the writings of Littleton

and Coke, and the decisions of Hale and Holt. "Coke was

unquestionably his favorite author," according to a close

friend's account. "[H] e not only read over and again his

commentary on Littleton, but the whole of his reports were

perfectly familiar to him." Roane even committed many of

Coke's Latin maxims to memory. In 1780, Roane graduated from








29

William and Mary and continued his study of the law during the

next year at a legal society in Philadelphia."0 In 1782,

Roane returned to Virginia to set up his law practice.

Soon after receiving his license to practice law,

however, Roane, like many young attorneys of the day, turned

to politics." In 1783 he won election to the House of

Delegates from Essex County and immediately faced the first

challenge of his political career. In the spring of that

year, upon the return of a British merchant to post-

revolutionary Essex, an angry mob tarred and feathered him.

While the citizens of the county enjoyed this public display,

the Governor and other state officials expressed their outrage

at the unruly behavior. When the Governor brought charges

against many in the mob, the accused turned to Essex County's

young legislator, Spencer Roane. In their defense, Roane

presented a petition signed by one hundred eighty-five of the

county's citizens, calling for a dismissal of the charges, and

lobbied the House of Delegates to nullify the prosecution.12

Key to the prospects for passage of Roane's proposal was the

attitude of Patrick Henry, at the time the most influential

man in Virginia politics. Although Henry viewed Roane's

measure as an intrusion of the legislature into the realm of

law enforcement, he nevertheless informed Roane that "he

admired the Whig spirit that actuated [him]" and agreed not to

oppose him on the matter. Henry's neutral position resulted








30

in the dismissal of all charges against the Essex mob and a

victory for the young Essex legislator.13

Stemming from this initial encounter, Roane went on to

form a strong political and personal relationship with Henry.

After working on committees with him in the House of

Delegates, Roane served for a year on the Privy Council, an

eight-member executive advisory body, while Henry was

Governor. In 1786, Roane's marriage to Henry's daughter Anne

further cemented his ties to the famed revolutionary

orator.14 Thereafter, the two maintained a close and

politically useful connection. Henry described Roane as "a

man of honor, of talents, and of an open, generous

disposition," while Roane expressed equal admiration for

Henry's skills as a speaker and a lawyer. Appropriately,

after Henry's death, Roane effusively praised the patron who

had helped him gain a foothold in politics."5

Owing to his connection with Henry, Roane's involvement

in the Virginia political scene deepened during the late

1780s. Consistent with his stand on the Essex mob, Roane

again entered into a fierce debate over the treatment of a

British sympathizer--this time, Robert Beverley, a wealthy

Tidewater planter who had refused to support the cause of

independence. When members of the Court of Essex County, a

tribunal to which Beverley had belonged before the outbreak of

hostilities, asked Beverley to rejoin their ranks, Roane went

on the offensive. In a letter to the Governor, the young








31

legislator insisted that the choice of Beverley was "extremely

dissatisfactory" and proceeded to enumerate his grievances

against him: Beverley had "associated only with men of

sentiments notoriously inimical to the cause of America" and

had "refused toasting Gen'l Washington and the American army

during the war."'1 Although the Governor initially reacted

to Roane's charges by suspending Beverley's nomination, when

the members of the court claimed that Roane's letter contained

"illiberal insinuations, and in some instances erroneous

reflections on the Court," the Governor was convinced and

Beverley was reinstated." This time, Roane had come up on

the losing side of a bitter political fight.

Roane's early political experiences shed light on the

personality and temperament for which he became known as a

judge. While a legislator, Roane was independent, principled,

and unafraid to lash out against those who posed a threat to

the beliefs he held dear. Having fallen under the sway of

Henry, Roane developed a fiery sense of partisanship and

pride, as well as a clear sense of direction and purpose.

Both politically and judicially, Roane set distinct goals for

himself and for his colleagues. As a politician of the post-

revolutionary era, Roane sought to defend the principles of

patriotism against all enemies. And as a judge in the early

republic, Roane set out to make the Virginia Court of Appeals

among the most respected judicial tribunals in the nation.








32

The first and most significant of Roane's contributions

as a jurist was his advocacy of judicial review. During the

decade before his first judicial appointment in 1789, the

Virginia Court of Appeals first began to expand its role in

the state's new government by asserting the power to review

legislative acts. In Commonwealth v. Caton (1782), a case

involving an extra-legal attempt by the House of Delegates to

pardon three prisoners condemned for treason, Judge George

Wythe asserted an unprecedented degree of judicial power. "If

the whole legislature should attempt to overleap the

bounds, prescribed to them by the people," he wrote, "I, in

administering the public justice of the country, will meet the

united powers at my seat in this tribunal; and, pointing to

the constitution, will say to them, here is the limit of your

authority; and hither shall you go, but no further."18

Although the court did not immediately adopt the practice of

judicial review, it nevertheless continued within the spirit

of Wythe's words. Later, in the Cases of the Judges (1788),

the Court of Appeals challenged a legislatively-enacted

reorganization of the court system by arguing that the

legislature could not impose new duties upon the judiciary

without its consent. While they did not declare the act

unconstitutional, the judges collectively issued a

remonstrance urging that the judiciary remain independent of

legislative control. Both of these key cases brought the








33

issue of judicial review to the forefront of Virginia public

life during the late eighteenth century.19

Roane, first as a member of the General Court and later

as a judge of the Court of Appeals, vigorously championed

judicial power to declare acts of the legislature

unconstitutional. While on the General Court, an appellate

tribunal whose members rode circuit and presided over district

courts throughout the state, Roane delivered an important

opinion in Kamper v. Hawkins (1793), a case involving a 1792

law that eliminated some of the important distinctions between

the courts of law and equity. The act allowed district court

judges to grant injunctions to stay proceedings on any

judgment obtained in a district court and declared that

district courts may proceed to the final hearing of all suits

commenced by injunction--powers previously reserved to the

state's High Court of Chancery. While Roane and Judge St.

George Tucker were sitting at the Dumfries District Court,

Peter Kamper--under the new law--petitioned for an injunction

to stay the proceeding on a judgment Mary Hawkins had

previously obtained against him. When Tucker declined to hear

the motion on jurisdictional grounds, he left the court.

Roane, not wanting to decide this important matter by himself,

adjourned the case to the General Court because of the

subject's "novelty and difficulty."20

When a five-member General Court convened to decide the

case, Tucker and Roane took similarly strong stands in favor








34

of judicial review. Born in Bermuda in 1752, Tucker had

arrived in Virginia in 1770 and, like Roane, studied law under

Wythe. Later, Tucker succeeded his mentor as professor of law

at William and Mary, where he prepared and published a multi-

volume annotation to Blackstone's Commentaries. Already

regarded as among the leaders in the Virginia legal community,

Tucker's learned and lengthy opinion in Kamper further

contributed to his lofty reputation. Drawing upon the

accumulated wisdom of the likes of William Blackstone, Thomas

Paine, and Alexander Hamilton, Tucker eloquently argued for

constitutional supremacy and judicial review. The

commonwealth's constitution, he believed, stood above acts of

the legislature, and, because it was a written constitution,

all branches of the government were clearly subject to its

dictates. Moreover, Tucker contended, "the duty of

expounding" the constitution "must be exclusively vested in

the judiciary." "The judiciary are bound to take notice of

the constitution, as the first law of the land," he

summarized, "and that whatsoever is contradictory thereto, is

not the law of the land."21

Although equal to Tucker's opinion in its substantive

support for judicial review, the style of Roane's decision was

less doctrinal and more practical, less discursive and more

direct. Strikingly, Roane reversed his position since the

case had first come before him at the district court, when he

had doubted whether the judiciary possessed the power to








35

prevent the execution of an act passed by the legislature.

"My opinion, on more mature considerations," he wrote in

Kamper, "is changed in this respect." Indeed, Roane's turn-

around was dramatic, for he supported judicial review in more

explicit language than any of his fellow judges, including

Tucker. "I now think that the judiciary may and ought not

only to refuse to execute a law expressly repugnant to the

Constitution," he wrote, "but also one which is, by a plain

and natural construction, in opposition to the fundamental

principles thereof."" While Tucker described the judiciary

in defensive terms--as "a barrier against the possible

usurpation or abuse of power in other departments"--Roane

portrayed the courts as the offensive agents of review, as the

branch of government that "may and ought to adjudge a law

unconstitutional and void."23

Roane, like Tucker, argued that the constitution--not

legislative action--was the expression of the people's

sovereign will and that the judiciary alone could determine a

law's constitutionality. In his view, the Revolution, by

severing ties with England, had created a unique set of

circumstances for Virginians. The commonwealth's

constitutional convention, because it neither served nor

derived any power under the former government, constituted "a

spontaneous assemblage of the people of Virginia." Moreover,

according to Roane, the decisions of the courts and even the

proclamations of the legislature had continually upheld the








36

idea that the constitution, as the product of the people's

work, was superior to any legislative act.24 Constitutional

interpretation, Roane concluded, was the domain of the

judiciary. Because the courts examined all laws dealing with

a particular subject when deciding a case, Roane reasoned that

it was also within the bounds of judicial responsibility to

assess a law within the context of the constitution. "In

expounding laws," he argued, "the judiciary considers every

law which relates to the subject: would you have them to shut

their eyes against that law which is of the highest authority

of any, or against a part of that law, which either by its

words of by its spirit, denies to any but the people the power

to change it?"25 On the issue of judicial review, Roane's

opinion in Kamper v. Hawkins was decisive.

Roane next addressed the law's constitutionality.

Because the legislation in question transferred important

powers from the chancery courts to the district courts--from

constitutionally-created tribunals to legislatively-created

tribunals--Roane viewed the act as an unlawful expansion of

legislative authority. The act not only violated the theory

of separation of powers, but also threatened the independence

and power of the judiciary--especially the newly-enunciated

principle of judicial review. "If the legislature can

transfer from constitutional to legislative courts all

judicial powers," Roane argued, "these dependent tribunals

being the creatures of the legislature itself, will not dare








37

to oppose an unconstitutional law, and the principle I set out

upon, viz. that such laws ought to be opposed, would become a

dead letter, or in other words, this would pave the way to an

uncontrolled power in the legislature." In Roane's view,

judicial review and judicial independence were inseparable.

Because the 1792 law seemed to violate both of these sacred

principles, Roane deemed the act unconstitutional.26

Throughout his later career as a member of the Court of

Appeals, Roane continued to operate within the spirit of

Kamper by asserting the power of judicial review. Although,

like the U. S. Supreme Court, the Virginia Court of Appeals

actually overruled few legislative acts before the Civil War,

Roane did not hesitate to argue that the legislature had to

act within the bounds of the constitutions of Virginia and the

United States, and in accordance with their basic

principles.27 In Jones v. Commonwealth (1799), for example,

Roane overruled a lower court decision that imposed a joint

fine against three defendants found guilty of assault as

antithetical to both "principles of natural justice" and the

Bill of Rights' prohibition on excessive fines. "It is most

unreasonable ," he wrote, "that one man should suffer

the punishment imposed by the jury upon all who may chance to

be with him." Even if the legislature were to pass an act

codifying the lower court's decision, Roane argued, the

imposition of a joint fine was "so unjust and contrary to the

spirit of the Bill of Rights" that he would certainly declare








38

such a law void.28 In Currie's Administrators v. Mutual

Assurance Society (1809), Roane similarly staked out the

court's power to proscribe legislative action. In this

instance, Roane drew specific limits around the legislature's

ability to alter corporate charters. When counsel argued that

the legislature possessed unlimited powers, Roane responded:

"What is this, but to lay prostrate, at the footstool of the

legislature, all our rights of person and of property, and

abandon those great objects, for the protection of which,

alone, all free governments have been instituted?" Although

Roane decided in this case that the legislature had not

overstepped its bounds, he affirmed the idea articulated in

Kamper that the legislature was bound "by the principles and

provisions of the constitution and bill of rights, and by

those great rights and principles, for the preservation of

which all just governments are founded.""29

The court's decision in Kamper v. Hawkins, as well as

Roane's and his successors' continued assertions of judicial

power, firmly established the practice of judicial review in

Virginia. Drawing upon the ideas of Wythe and Tucker, Roane

explicitly described the judiciary as the agent of judicial

review when legislative acts violated either the letter or the

"fundamental principles" of the constitution. In a national

context, Kamper fitted with a succession of state cases in the

last two decades of the eighteenth century that solidified the

power of state appellate courts to decide constitutional








39

issues and paved the way for the United States Supreme Court's

decision in Marbury v. Madison (1803).0 Because of his

directness on the issue, Roane earned a reputation as one of

the progenitors of judicial review in Virginia.3

In addition to advancing the notion of judicial review,

Roane sought to strengthen the Court of Appeals by promoting

unanimity among its members. At Roane's arrival on the Court

of Appeals in 1795, unanimous opinions were the rule among the

judges, all of whom were advanced in years and conservative in

outlook. Their president, Judge Edmund Pendleton, had

effectively guided the five-member tribunal through its early

history and had assiduously labored to establish the court's

reputation within the state and the nation. A long-time

leader within Virginia's conservative party, Pendleton had

reluctantly advocated independence from England and had

consistently opposed the more radical politics of those like

Patrick Henry. Pendleton's conservatism made his support

crucial to the revolutionary cause; he served in the first

Continental Congress and chaired the Committee of Safety.

Already a giant within Virginia's legal community, Pendleton's

appointment as president of the newly-created Court of Appeals

in 1779 made him the undisputed leader of the state's

judiciary. From his position on the Court of Appeals,

Pendleton exercised the final say over decisions rendered in

the state's lower courts--a fact that renewed an old rivalry

with Wythe, who served as head of the state's High Court of








40

Chancery. Pendleton's antagonisms, however, did not affect

his relationship with Roane. Although the son-in-law of

Pendleton's political enemy and the protege of his judicial

adversary, Roane immediately earned Pendleton's respect and

confidence. In the same way, the elder jurist became a mature

source of wisdom and an example of judicial leadership for

Roane.32

Pendleton's death in 1803 cast the court into a period of

conflict and disarray. A series of structural changes in the

first few years of the nineteenth century left the institution

with only three judges by 1807: President William Fleming,

Tucker, and Roane. Though not the acknowledged leader of the

court, Tucker, as the eldest and most respected legal thinker

of the three, no doubt viewed himself as the heir to

Pendleton. When an alliance quickly developed between Tucker

and Fleming, Roane often found himself forced to dissent from

the opinions of his colleagues. Fleming seemed content to

yield to Tucker and allowed him to prepare the court's

opinions before conferences--a practice that rendered Roane

powerless and conferences unimportant. Not only was this

situation threatening to Roane's personal position as a member

of the court, but the division among the judges also

undermined the body's unanimity and authority.33

In 1808, in an attempt to return the court to the

position it had maintained under Pendleton's leadership, Roane

introduced a set of resolutions establishing formal rules and








41

procedures for the court's operation. Among other things,

Roane suggested that judges refrain from excusing themselves

from cases unless they were closely related to the parties

involved; that judges confer about their decisions and, if

differences exist, exchange opinions before delivering them in

open court; that they avoid rendering seriatim opinions (the

practice of each judge issuing a separate opinion in a case);

that they keep a written record of witnesses' testimony and

seek power from the legislature to refer cases involving

witnesses of questionable credibility to juries; and that they

prescribe the legal conduct of all other judges in the state.

When Fleming and Tucker refused to accept these measures, the

following term Roane decided not to force the issue and

withdrew the resolutions from consideration.34

But the matter did not end there. Roane's opposition to

Tucker's pre-conference opinion writing and de facto dominance

of the court led to a three-year feud between the two judges,

a conflict that erupted first in conference and eventually in

open court. During one conference in 1809, for example, while

Tucker was reading an opinion, Roane accosted the judge,

grabbed the decision from his hands, threw it to the floor,

and told him that he could not bear to listen to another of

his "long, tedious, and ridiculous" opinions. After a similar

incident occurred the next day, an unbridgeable rift developed

between Roane and Tucker. Deeply offended, Tucker lamented to

Fleming the "unprovoked injuries" he had suffered at Roane's








42

hands and refused to meet with Roane in conference.3 With

the disappearance of the conference as a viable forum for the

discussion of legal issues, Roane carried his differences with

Tucker into open court. Tucker, again turning to a

sympathetic Fleming, continued to complain about the

denunciations[] made against" him and to maintain,

despite the efforts of Roane and others, his refusal to meet

in conference.36 Although as members of the General Court

Roane and Tucker had labored together to ensure the

independence and power of the Virginia judiciary, by 1809 the

cooperation that had characterized their early personal and

professional association had disappeared.

The Tucker-Roane conflict represented a showdown between

not only two impetuous, uncompromising personalities, but also

two distinct views of the judicial role.37 Roane envisioned

a return to Pendleton's style of judicial decisionmaking, in

which the judges met privately to work out differences before

delivering a unanimous opinion. Although lacking the judicial

statesmanship and consensus-building skills of Pendleton,

Roane sought to implement a decisionmaking process that would

maintain the prestige of the institution and strengthen the

force of its opinions. Tucker, on the other hand, wanted to

preserve the practice of rendering seriatim opinions and saw

no impropriety in establishing a permanent alliance with

Fleming, a development that effectively divorced Roane from

the decisionmaking process and invited dissension between








43

himself and Roane. Eventually, Roane came to view Tucker's

departure as the only chance for the court to adopt procedures

that would encourage unanimity.

Roane's persistence ultimately yielded dividends in terms

of both his view of judicial decisionmaking and his own

position on the court. In 1811 Tucker, seemingly stunned by

Roane's continuing opposition and equally offended by a new

judicial reorganization act that expanded both the size of the

court and the duties of its members, resigned from the Court

of Appeals. In a lengthy letter of resignation, Tucker

explained his opposition to the restructuring of the courts

and his unwillingness to comply with the expanded duties that

it imposed upon the judges. Yet, he was the only one of the

judges to express resistance to the measure, and his sudden

resignation makes little sense apart from his three-year

struggle with Roane. Having found a valid reason to retire,

Tucker finally chose to end the bitter dispute with his

judicial colleague. In effect, the tenacious Roane had forced

Tucker from the bench.38

The results of Tucker's exit, from Roane's perspective,

were immediate and impressive. While the new judges never

specifically adopted Roane's proposed reforms for the court's

operation, they nonetheless acceded to his judicial

leadership. During the rest of Roane's tenure as a judge, the

court issued short, unanimous opinions in an overwhelming

majority of its cases. Although he never served as the








44

president of the court, Roane assumed a commanding presence

among his colleagues, especially after an illness dictated

Fleming's frequent absence. Of the 609 opinions issued during

the eleven-year period from Tucker's departure to Roane's

death, 556 were unanimous decisions of the court. Of these,

Roane authored almost half.39 During the same period, he

delivered only forty-eight separate opinions. Tucker's

departure enabled Roane, much like his counterpart on the

U. S. Supreme Court, to fashion the Court of Appeals in his

own image.

While similar to John Marshall in terms of attitudes

toward judicial review and unanimity in decisionmaking, Roane

stood apart from his more famous rival in his careful devotion

to precedent.40 Adherence to established judicial doctrines

constituted a third aspect of Roane's means of strengthening

the Court of Appeals. Bruised by its continued battles with

the legislature over judicial power and scarred by internal

strife among its members, the Virginia Court of Appeals needed

a potent source of authority to further legitimize its

decisions.

Often, particularly in the first decade of the century,

Roane decided cases based on precedents even when such rulings

ran counter to his personal opinions. For example, in Young

v. Gregorie (1803), a case involving an attempted prosecution

that failed to aver the want of probable cause, Roane upheld

the letter of the law, despite his own convictions. "In this








45

case I am compelled to yield my impressions, relative to the

real justice of the appellant's cause," he wrote, "to the

established principles of the law, as settled by successive

and long existing decisions." Similarly, in Ballard v.

Leavell (1805), another case involving an incorrectly

constructed charge, Roane again looked to the established

principle as the basis for his decision. "It gives me pain to

reverse judgments upon grounds which appear to be technical,

and do not entirely accord with the general understanding of

men," he admitted. "But I hold myself bound by well-

established precedents, and disclaim a power to change the

law." And in Johnson v. Johnson's Widow (1810), a case

involving the conveyance of property under a will, Roane again

set aside his own opinions on the matter "in deference to" a

previous decision of the court.41

English precedents and principles held a place of

particular importance in Roane's decisions. Although a

zealous revolutionary and ardent Jeffersonian, he did not view

independence from England as severing the bonds of law and

tradition between the two nations. Instead, in areas of the

common law that remained unaffected by the revolutionary

transfer of sovereignty from England to America, Roane did not

hesitate to draw upon the writing of both ancient and

contemporary English legal thinkers. "I shall certainly not

be accused of partiality towards the government of Great-

Britain," he wrote in Baring v. Reeder (1806), a case dealing








46

with the law of evidence, "but I wish not, without necessity,

to sound the tocsin against that nation; to indulge my

prejudices against her to an unreasonable length; nor to shut

out from our eyes that light, which, while it conduces to

truth, will certainly not contaminate our political

institutions." In view of the lack of an established legal

tradition in Virginia and America as a whole, Roane believed

that English authorities retained significant influence in the

United States and offered solutions to the young nation's most

important legal questions. In this way, Roane followed in the

footsteps of his Virginia predecessors Wythe and Pendleton and

parallelled the work of northerners like Massachusetts' Joseph

Story, all of whom relied heavily on English authorities. "I

do not see why," Roane summarized in Baring v. Reeder,

. the testimony of Lord Mansfield delivered in 1777, is

not of equal weight with his testimony delivered in 1775.142

Indeed, in Roane's view, English authorities stood on

equal footing with decisions of Virginia courts. Confronted

with these two different types of precedents in Claiborne v.

Henderson (1809), a case involving a widow's relationship to

her deceased husband's estate, Roane abided by the principles

established by the line of English decisions, rather than by

an opinion from his own state's General Court. "Undoubtedly,

would such a series of decisions by [English] Courts overrule

a single decision made by a coequal Court in this

country, whatever may be the case of single and recent








47

decisions, which have neither been long acquiesced in, nor

grown into rules of property." Hearkening back to the great

tradition of English legal scholarship, Roane cited Blackstone

and others in support of adherence to such long-established

precedents. "These are a few of the innumerable instances to

be found in the books, of a reverence for decisions, and rules

of property which have been established by the concurrent

decisions of successive Judges, and acted under, for a long

series of time," he wrote. "They ought to be adhered to as

the sine qua non of all certainty and stability in the law,

the private opinion of any single Judge to the contrary

notwithstanding."43 In short, adherence to precedents,

particularly those from English courts, constituted a key

element of Roane's efforts to strengthen the Court of Appeals

and legitimize its decisions.

Roane's work as a judge helps to explain his fierce

opposition to the Marshall Court's continuing expansion of its

own power. As one of the key players in the establishment of

judicial review in Virginia, the leading advocate of unanimous

opinions on the Court of Appeals, and a steady proponent of

fidelity to precedent, Roane emerged in the early nineteenth

century as the undisputed leader of the Virginia Court of

Appeals. Despite the claims of most historians, Roane did not

engage Marshall in a national debate over the nature of the

federal system as a state political boss or as an early

champion of southern radicalism and secession. As F. Thornton








48

Miller persuasively argues, there is "precious little"

evidence that the "Richmond Junto," a supposedly secret and

powerful political organization that dominated Virginia's

public life, even existed. According to Miller, the charge

that an all-powerful cabal controlled Virginia politics arose

out of the context of a partisan, personal battle between two

newspaper editors. Moreover, the editor who made the charge

of the Junto's existence late admitted that he fabricated much

of the story.4 True, Roane was no stranger to politics.

Active as a Republican party official at the state level and

visible on the national political scene after the first of his

battles with the U. S. Supreme Court, Roane even emerged as a

possible candidate for the presidency in the 1820s. But, in

Miller's words, Roane "was not a political boss and there is

no evidence that he tried to play that kind of role.""4

Roane was, rather, a defender of state judicial power.

His partisan writings against the decisions of the Supreme

Court flowed naturally from his work as a state judge and from

the perceived threat that Marshall's opinions presented to the

power of the Virginia Court of Appeals. After devoting his

entire judicial career to expanding the force and legitimacy

of the state court, Roane was not apt to stand idly by while

a few Supreme Court decisions undermined his labors.

Marshall's decisions rekindled in Roane the vituperative

spirit of partisanship characteristic of his early days as a

state legislator under the tutelage of Patrick Henry.








49

Roane began his crusade against the Supreme Court with

his opinion in Hunter v. Martin (1814), a case involving

Virginia's post-revolutionary confiscation of Tory lands.

After the U. S. Supreme Court voided the state's confiscation

act in Fairfax's Devisee v. Hunter's Lessee (1813) on the

grounds that the law violated the Treaty of 1794 with England,

Roane led the way in both declaring Section 25 of the

Judiciary Act of 1789 unconstitutional and in refusing to obey

the mandate of the Supreme Court. Roane viewed the dispute as

a judicial clash, involving the independence, power, and

jurisdiction of two distinct court systems--one of which was

trying to overrun the other. His lengthy opinion in Hunter v.

Martin, reprinted in the Richmond Enquirer, earned the

Virginia judge a national reputation as the Supreme Court's

chief foe and initiated a crusade against the Court that ended

only with his death.46

Roane attacked Section 25 of the 1789 act, which allowed

for appeals from state courts to the federal judiciary, as

inconsistent with the U. S. Constitution's provisions

regarding judicial power and jurisdiction. Roane believed

that unless stated otherwise, all of the Constitution's

provisions regarding the jurisdiction of courts applied only

to the federal judiciary. "Naturally the jurisdiction granted

to a government is confined to the courts of that government,"

Roane claimed. "It does not, naturally, run into and affect

the courts of another and distinct government.""47 With the








50

exception of Article Six, which specifically referred to state

judges, Roane found no constitutional provisions regulating

state courts. Section Two of Article Three, for example,

which provided for trial by jury in the state in which the

crime was committed, applied only to federal courts. "It

would have been absurd to have provided that the Courts of a

State, which has no jurisdiction beyond its limits should be

held within those limits," he reasoned. Such was also the

case with the Seventh Amendment's establishment of the right

of trial by jury. "It will not be contended that it relates

to the jurisdiction of the state courts," he wrote, as most

of the state constitutions had already provided for the

inviolability of jury trial." And in Roane's view, when the

Eighth Amendment afforded the right of speedy trial in the

state in which the crime was committed, the reference again

was undoubtedly to the federal courts. To Roane, in short,

Section 25 of the Judiciary Act of 1789, by intruding into the

jurisdiction of state courts, was inconsistent with the

Constitution's exclusive concern with federal court

jurisdiction." Because the Constitution did not subordinate

the state judiciary to the federal, the two court system stood

on equal footing--neither holding power over the other.

Therefore, the Virginia Court of Appeals, as a co-equal

judicial body, had legitimate grounds on which to oppose the

Supreme Court's decision.








51

To defend further his belief in the distinct and equal

character of the state and federal judiciaries, Roane turned

in Hunter to the theory of state sovereignty, as articulated

in a Pennsylvania Supreme Court case. In Commonwealth v.

Cobbett (1799), the Pennsylvania court unanimously refused to

permit the defendant to remove a cause from the state courts

into the federal courts.49 According to Roane, the court

concluded that the federal government derived its authority to

rule from the states, which had originally come together to

form a new union through the Constitution. Under this scheme,

because the states retained all powers except those granted to

the government of the United States, the national government

through its judiciary possessed no authority to coerce state

courts. With precedent on his side, Roane believed that the

Virginia Court of Appeals stood on solid ground in its battle

with the Supreme Court. "I consider this decision by the

Supreme Court of Pennsylvania as a complete and solemn

authority to show," he wrote, "that in case of a difference of

opinion between the governments as to the extent of the powers

vested by the Constitution, while neither party is competent

to bind the other, the courts of each have power to act upon

the subject.""50 State sovereignty, then, expressed through

judicial precedent, became a key means by which Roane

attempted to defend the power of the Virginia Court of Appeals

against the intrusion of the Supreme Court.








52

In subsequent political writings, state sovereignty

emerged as the centerpiece of Roane's challenge to Marshall.

In advancing this argument, Roane drew upon the Antifederalist

tradition of the 1780s, as well as the Kentucky and Virginia

Resolutions of 1798-1799. Roane's attachment to Jefferson,

one of the Resolutions' authors, accelerated his devotion to

the doctrine of state sovereignty. Historians now agree that

there is no evidence to support the claim that, as president,

Jefferson desired to appoint Roane as Chief Justice of the

United States. The two probably did not have any contact with

each other until about 1808, well after President John Adams'

appointment of Marshall."5 Nevertheless, in 1815 when Roane

sought Jefferson's view of his decision in Hunter v. Martin,

the two men initiated an important political friendship that

continued until Roane's death. When Jefferson informed Roane

that he agreed with his opinion in Hunter v. Martin, Roane

expressed a renewed sense of confidence about the ruling. "The

opinion here seem pretty general in favour of the decision,"

he wrote to James Barbour, one of Virginia's U. S. Senators.

"If we have erred, we have erred with Plato & Socrates--for

Mr. Jefferson in with us." Roane's deep respect for

Jefferson, coupled with the former President's longstanding

commitment to state sovereignty, help to explain Roane's

fervent adoption of the theory and his renewed sense of

determination on the matter.52 With Jefferson on his side,

Roane made it know that future Supreme Court decisions of a








53

like nature would meet with similar defiance. "The 25th

Section of the judicial act," he asserted to Barbour, "can

never be enforced in Virginia."53

With Jefferson's backing, Roane continued his campaign

against the Supreme Court. Marshall's vigorous endorsement of

national supremacy and implied powers in McCulloch v. Maryland

(1819) provoked a series of essays by Roane in the Richmond

Enquirer.54 While the Virginia Court of Appeals was not

involved in the dispute in McCulloch, Roane nevertheless

viewed Marshall's decision as not only a violation of the

sovereignty of the states, but also as a flagrant perversion

of the proper role of the Supreme Court.

As in Hunter v. Martin, Roane use state sovereignty to

attack the Supreme Court's jurisdiction in particular and the

national government's power in general. "It is not competent

to the general government to usurp rights reserved to the

states, nor for its courts to adjudicate them away. Our

government is a federal and not a consolidated government."

This was an important distinction. If the nation were truly

federal in character, the Supreme Court would have no

jurisdiction over a state matter, as such issues would remain

the domain of the states's legislators and judges. By

augmenting the Supreme Court's jurisdiction to permit review

of state laws, Roane believed, Marshall threatened to replace

the federal system with a consolidated scheme in which the

national government was superior. To combat this idea, Roane








54

turned again to state sovereignty. "The Constitution of the

United States was not adopted by the people of the United

States, as one people," he wrote, countering the popular

sovereignty and national supremacy argument of the Court. "It

was adopted by the several states, in their highest sovereign

character, that is, by the people of the said states,

respectively; such people being competent, and they only

competent, to alter the pre-existing governments operating in

the said states.""55 Under this theory of sovereignty, the

Supreme Court, as an agent of the national government,

possessed no jurisdiction over state laws--be they judicial

decisions or statutes.

While Roane employed state sovereignty to make the

jurisdictional argument, he drew upon the common law tradition

to undermine Marshall's notion of implied powers. Roane

contended that the Necessary and Proper Clause in no way

extended the powers specifically granted to the Congress by

the Constitution. Instead, the words of the clause, he wrote,

were "tautologous and redundant, though harmless." In other

words, the Necessary and Proper Clause, in Roane's view, was

a mere truism that had no meaning in and of itself, and

certainly did not augment the enumerated powers of the

national government.56 Citing the works of Littleton, Coke,

and Blackstone, Roane contended that grants of power included

only those accessory powers that were "fairly incident" to the

enumerated powers. Roane thus disagreed with Marshall's








55

liberal interpretation of the Necessary and Proper Clause as

out of line with established principles of the common law.57

Finally, Roane attacked Marshall for his expansive view

of judicial power. Marshall's broad attempt to establish

national supremacy and to expand the central government's

implied powers struck Roane as a flagrant perversion of the

Supreme Court's role. In a case that dealt with specific

issues regarding the National Bank, Marshall's sweeping

pronouncements on the scope of congressional power and the

nature of the Union appeared to Roane to be "entirely extra-

judicial and without authority." Moreover, Roane saw the

Court assuming the form of a legislative body. "[The Supreme

Court] often puts its veto upon the acts of he immediate

representatives of the people," he charged. "It in fact

assumes legislative powers by repealing laws which the

legislature have enacted.""58

When taken within the context of Roane's own spirited

assertions of judicial review of legislation at the state

level, these statements in support in legislative supremacy

seem out of character, or at least ironic. However, the

larger issue for Roane in the McCulloch case was still one of

defending his own position as a state judge. If the Supreme

Court under Marshall were allowed to continue unabated its

dramatic expansion of national judicial power and

jurisdiction, what would become of the Virginia Court of

Appeals and other state courts? Prodded by Jefferson, Roane








56

argued that Marshall's decision in McCulloch was another step

in the creation of a consolidated national judiciary that

presented a looming threat to state judicial power. "While I

would consent to support the federal judiciary within

the states, in all its legitimate objects," Roane wrote to a

friend in 1819, "I would not set up without necessity a batch

of courts strong enough to withdraw from the state courts

their proper powers.""59 In Roane's view, the Supreme Court's

continued attempts to further its power threatened to render

state courts--including his own Court of Appeals--weak and

ineffective.

In the years after McCulloch, Roane's attachment to state

sovereignty increased. With the rise of the slavery issue

within the context of Missouri's admission to the Union, Roane

had another reason to cling to the doctrine of state power for

protection against the national government. While he

initially regarded the Missouri question as inconsequential

when compared to the McCulloch decision and the Court's

tyrannical tendencies, by the end of 1820 Roane's feelings on

the issue of the future of slavery ran deep.60 "If any thing

could add to the calamitous condition of our country," he

wrote, ". it would be that the principles of 1799 are

trodden under foot, and our slaves are incited to

insurrection." Even at this early state in the nation's

sectional crisis, Roane vented his hostility toward those who

proposed territorial limits on the institution of slavery and








57

hinted at the future possibility of disunion. "The conduct of

the Eastern intriguers finds no just motive in relation

to their people, to us, or to the slaves themselves. It finds

a clue, however, in their lust of dominion and power."61 By

1820, then, Roane's attitudes toward the Supreme Court and the

national government took on a sharper tone. No longer

battling just for the power and independence of the Court of

Appeals, Roane deepened his commitment to state sovereignty

and stepped up his attacks on the Court.

The Supreme Court's decision in Cohens v. Virginia (1821)

provided the context for Roane's final showdown with Marshall.

As he had in McCulloch, Marshall used the case, which dealt

with whether the Supreme Court possessed jurisdiction in an

appeal from a borough court in Virginia, to enunciate broad

constitutional principles relating to the nature of the Union

and the power of the Supreme Court within the federal system.

In granting jurisdiction under Section 25 of the Judiciary Act

of 1789, Marshall again invited criticism from Roane and

Virginia Republicans, who stepped up the attack on the

nation's highest court.62

Roane's offensive again centered around the Supreme

Court's lack of jurisdiction and drew support from the theory

of state sovereignty. "It is an anomaly in the science of

government, that the courts of one independent government are

to control and reverse the judgments of the courts of

another," he contended. The facts of the case made this claim








58

particularly outstanding, for Cohens did not involve an appeal

from Virginia's highest court. Rather, the Cohens brothers,

convicted of selling lottery tickets in violation of a

Virginia law, appealed their case directly from the Norfolk

borough court to the Supreme Court. This unusual

situation--with the state of Virginia defending the decision

of one of its lower courts--perhaps weakened Roane's argument

about the co-equal nature of the state and federal

judiciaries. Unlike in Fairfax's Devisee v. Hunter's Lessee

and Martin v. Hunter's Lessee, which involved Supreme Court

challenges to the Virginia Court of Appeals, in Cohens Roane

found himself arguing that the lowly Norfolk Borough Court, as

a member of the Virginia court system, did not have to adhere

to a decision of the Supreme Court of the United States.63

Beyond the jurisdictional argument, Roane subtly injected

the slavery debate into his discussion by contending that the

Supreme Court's consolidationist tendencies presented a threat

to the entire scope of liberties enjoyed by the American

people. The division of powers inherent in federalism,

coupled with the system of checks and balances at both the

state and national levels, Roane believed, were key to the

preservation of rights--including, no doubt, southerners'

license to hold slaves. "This division and limitation of the

granted powers, and the checks necessarily resulting

therefrom," he reasoned, "forms the only security for our

liberties." By usurping authority from the states, the Court








59

undermined this structure and removed all obstacles to its

continued acquisition of power. While other departments of

the government were subject to restraint by means of the

elective franchise, the Supreme Court could continue unchecked

on a course toward despotic rule. "There is but one higher

grade in this climax of arrogance and absurdity," Roane noted,

"and that is, to claim to hold its powers by divine authority,

and in utter contempt of the sovereign power of the

people. "64

Roane continued his struggle against the Supreme Court

until his death. In order to end the Court's destructive

designs, he supported an amendment to the Constitution,

proposed in the December 1821 session of Congress that would

have made the U. S. Senate, instead of the Court, the forum

for review of state court decisions involving constitutional

questions. The proposed amendment went nowhere, however, and

most of Virginia's aging leaders did not even offer their

support--a fact that bothered Roane. "Jefferson and Madison

hang back too much in this great crisis," he confided to a

friend. Yet, Roane himself could not wage the battle much

longer, and in the spring of 1822, at age sixty, Roane became

ill. He died September 4 of the same year.6

Spencer Roane's life spanned six decades of dramatic

change in the history of Virginia and the early republic.

Born into the hopeful yet uncertain setting of the pre-

revolutionary Tidewater, Roane came of age in the formative








60

era of his state's and the nation's constitutional and legal

development. He witnessed the founding of a new national

government under the Constitution, experienced the evolution

of the judiciary into a viable third branch of government at

both the state and federal levels, braved the gradual waning

of Virginia's position of importance within the Union, and saw

the emergence of the slavery issue as a potent source of

sectional antagonism.6 Moreover, Roane learned significant

lessons about law and politics from the leading members of his

state's legal community--from men like George Wythe, St.

George Tucker, Patrick Henry, Edmund Pendleton, and Thomas

Jefferson. Through his unique experiences with each of these

individuals, Roane drew upon his state's rich heritage. In

his career as a judge and a political writer, Roane combined

the legal learning of Wythe and Tucker, the prideful

partisanship of Henry, the judicial leadership of Pendleton,

and the constitutional vision of Jefferson. Roane became, in

short, the embodiment of early nineteenth century Virginia

legal culture.

Roane's influence stretched well into the nineteenth

century and extended both within his own state and throughout

the nation. Judicial review of legislation, his greatest

contribution to Virginia's legal history, became a fixed

practice among Roane's successors on the Court of Appeals. By

1837, Judge Henry St. George Tucker, the son of Roane's early

judicial rival, observed that the power of reviewing








61

constitutionality was "too firmly settled to be now

questioned."67 Roane's style of decision-making also

dominated the subsequent development of the court. Despite a

few instances of seriatim opinion-writing in the first half of

the nineteenth century, the judges of the court continued his

practice of writing short majority opinions. The significance

of Roane's political writings, of course, lay in the South's

eventual embrace of state sovereignty. During the late

antebellum period, judges and politicians alike turned to this

doctrine of state power to justify the South's commitment to

slavery and the region's willingness to dissolve the Union."6

Spencer Roane's experiences as a state judge and his work

as a political writer were cut from the same cloth. As a

Virginia jurist for thirty-three years, Roane consistently

attempted to further the power of his state's highest court.

This career-long endeavor to solidify the stature of the

Virginia Court of Appeals collided with Chief Justice John

Marshall's similar efforts at the national level. Although

the resulting clash between these two like-minded jurists

produced competing interpretations of the locus of sovereignty

within the Union--an issue that retained a crucial

significance at least until the Civil War--the source of this

political dispute lay in both Marshall's and Roane's expansive

interpretation of judicial power. The slavery issue played

only a secondary role in Roane's theory, as it became










significant for him only after the Missouri crisis--just two

years before his death.

Roane's career reveals that the early nineteenth century

southern judicial tradition contained both uniquely southern

and uniformly American elements. While the state sovereignty

argument that Roane so forcefully propounded eventually

emerged as the constitutional creed of many in his native

South, Roane's paradoxical similarity with "The Great Chief

Justice" on the issue of judicial power placed Roane well

within the early nineteenth century American tradition of

judging.69



Notes


1. Roane to James Barbour, January 30, 1819, as published in
"Letters of Spencer Roane, 1788-1822," Bulletin of the New
York Public Library, 10 (March, 1906), 171-172.

2. Spencer Roane served as a judge of the Virginia General
Court from 1789-1794 and a judge on the Virginia Court of
Appeals from 1794-1822. For the traditional interpretation of
Roane, see, e.g., William E. Dodd, "Chief Justice Marshall and
Virginia, 1813-1821," American Historical Review, 12 (July,
1907), 776-787; Albert J. Beveridge, Life of John Marshall,
(Boston: Houghton Mifflin Co., 1919), vol. 1, 210, vol. 4,
146-47; Charles Warren, The Supreme Court in United States
History, (Boston: Little, Brown, and Company, 1922), vol. 2,
1-24; Rex Beach, "Spencer Roane and the Richmond Junto,"
William and Mary Quarterly, 2d. ser., 22 (January, 1942), 1-
17; Harry Ammon, "The Richmond Junto, 1800-1824," Virginia
Magazine of History and Biography, 61 (October, 1953), 395-
418; Joseph H. Harrison, "Oligarchs and Democrats: The
Richmond Junto," Virginia Magazine of History and Biography,
78 (April, 1970), 184-198.

3. Margaret E. Horsnell, Spencer Roane: Judicial Advocate of
Jeffersonian Principles, (New York: Garland Publishing,
1986), 2-3; "Roane Family," William and Mary Quarterly, 1st











Ser., 18 (January, 1910), 199; David John Mays, "Judge Spencer
Roane," Virginia State Bar Association Proceedings, 40 (1928),
446; Edwin J. Smith, "Spencer Roane," The John P. Branch
Historical Papers, 2 (June, 1905), 4-5; T. H. Breen, Tobacco
Culture: The Mentality of the Great Tidewater Planters on the
Eve of the Revolution, (Princeton, N. J.: Princeton
University Press, 1985).

4. James B. Slaughter, Settlers, Southerners, Americans: The
History of Essex County, Virginia, 1608-1984, (Salem, W. V.:
Walsworth Press, 1985), 114.

5. Breen, Tobacco Culture, 31-32.

6. Clyde Christian Gelbach, "Spencer Roane of Virginia, 1762-
1822: A Judicial Advocate of State Rights," (Ph.D.
Dissertation, University of Pittsburgh, 1955), 6-7; Alan M.
Smith, "Virginia Lawyers, 1680-1776: The Birth of an American
Profession," (Ph.D. Dissertation, Johns Hopkins University,
1967), 77-81.

7. Herbert B. Adams, "Circulars of Information of the Bureau
of Education, No. 1-1887, The College of William and Mary: A
Contribution to the History of Higher Education, with
Suggestions for its National Promotion," (Washington, D. C.:
Government Printing Office, 1887), 38-39; A. G. Roeber,
Faithful Magistrates and Republican Lawyers: Creators of
Virginia Legal Culture, 1680-1810, (Chapel Hill: University
of North Carolina Press, 1981), 167. See also, Fred B.
Devitt, Jr., "William and Mary: America's First Law School,"
William and Mary Law Review, 2 (1960), 424-436; Robert M.
Hughes, "William and Mary, The First American Law School,"
William and Mary Quarterly, 2d. ser., 2 (January, 1922), 40-
43.

8. Richard E. Ellis, The Jeffersonian Crisis: Courts and
Politics in the Young Republic, (New York: Oxford University
Press, 1971), 119-121; E. Lee Shepard, "George Wythe," in W.
Hamilton Bryson, ed., The Virginia Law Reporters Before 1880,
(Charlottesville: University Press of Virginia, 1977), 90-91;
W. Hamilton Bryson, Legal Education in Virginia, 1779-1979:
A Biographical Approach, (Charlottesville: University Press
of Virginia, 1982), 21.

9. Bryson, Legal Education, 22-23.

10. "Biographical Sketch of Spencer Roane, Esq.," Richmond
Enquirer, September 17, 1822; Horsnell, "Spencer Roane," 6-7.










11. Calendar of Virginia State Papers and Other Manuscripts,
(Richmond, Va.: Library Committe, Virginia Legislature,
1883), vol. 3, 361, 411-412. On Virginia lawyers and their
penchant for political pursuits, see E. Lee Shepard, "Lawyers
Look at Themselves: Professional Consciousness and the
Virginia Bar, 1770-1850," American Journal of Legal History,
25 (January, 1981), 1-23.

12. Slaughter, Settlers, Southerners, Americans, 73-74;
Gelbach, "Spencer Roane of Virginia," 14.

13. Slaughter, Settlers, Southerners, Americans, 74; "Judge
Spencer Roane's Memorandum," in George Morgan, The True
Patrick Henry, (Philadelphia: J. B. Lippincott Company,
1907), 441.

14. Smith, "Spencer Roane," Branch Historical Papers, 6;
Virginia State Papers, vol. 4, 31; Horsnell, Spencer Roane:
Judicial Advocate, 17.

15. Henry to Daughter Anne, in William Wirt Henry, ed.,
Patrick Henry: Life, Correspondence, and Speeches, (New York:
Charles Scribner's Sons, 1891), vol. 2, 305; Roane,
"Memorandum," 435-454, esp. 441.

16. Slaughter, Settlers, Southerners, Americans, 74; Roane to
the Governor of Virginia, September 3, 1787, published in
Virginia State Papers, vol. 4, 338-339.

17. Newman Brockenbrough, Wm. Latane, John Brockenbrough, John
Beale, Henry Garnett, Wm. Waring and Rob't L. Waring,
Justices, to Governor Randolph, March 27, 1788, published in
Virginia State Papers, vol. 4, 417; Slaughter, Settlers,
Southerners, Americans, 75.

18. Commonwealth v. Caton, 4 Call 5, 8 (1782); Robert B.
Kirtland, George Wythe: Lawyer, Revolutionary, Judge, (New
York: Garland Publishing, 1986), 216-219. See also, David J.
Mays, Edmund Pendleton, 1721-1803: A Biography, (Cambridge,
Mass.: Harvard University Press, 1952), 187-202. Mays notes
that Judge James Mercer moved beyond Wythe and actually
declared the law unconstitutional. Because the reporter's
record did not contain the opinion (Mays discovered it in
Pendleton's notes), Wythe has received most of the credit for
originating judicial review in Virginia.

19. Cases of the Judges of the Court of Appeals, 4 Call, 135
(1788); Thomas R. Morris, The Virginia Supreme Court: An
Institutional and Political Analysis, (Charlottesville, Va.:
University Press of Virginia, 1975), 11-12; Horsnell, Spencer
Roane: Judicial Advocate, 22. Judicial review also emerged











in Turner v. Turner's Executor (1792), where Judge Edmund
Pendleton held unconstitutional the legislature's enactment of
an ex post facto law as "oppressive and contrary to the spirit
of the Constitution" (4 Call 234, 237).

20. Kamper v. Hawkins, 1 Va. Cas. 20, 21-22 (1793); Charles T.
Cullen, St. George Tucker and the Law in Virginia, (New York:
Garland Publishing, 1987), 85.

21. 1 Va. Cas. 20, 79, 81; Cullen, St. George Tucker and the
Law, passim; John Randolph Tucker, "St. George Tucker, LL.
D.," Virginia State Bar Association Proceedings, 40 (1928),
465-473. Unlike any of his colleagues in Kamper, Tucker also
contended that one of the fundamental principles behind the
constitution was the absolute separation of law and equity
jurisdiction. In this sense, Tucker's opinion went farther
than Roane's; however, by imbuing the constitution with this
particular principle, Tucker did not necessarily advocate a
more forceful implementation of judicial review than Roane.

22. 1 Va. Cas. 20, 35-36.

23. 1 Va. Cas., 20, 40, 87.

24. 1 Va. Cas. 20, 36-38.

25. 1 Va. Cas. 20, 38-39.

26. 1 Va. Cas. 20, 39-42.

27. The constitutionality of a law was at issue in only
thirty-five cases in the Virginia courts before the Civil War.
Of these cases, in only two were laws declared
unconstitutional. (Margaret Virginia Nelson, A Study of
Judicial Review in Virginia, 1789-1928, [New York: AMS Press,
1967], 32). The U. S. Supreme Court, of course, declared only
two laws of Congress unconstitutional, in Marbury v. Madison
(1803) and Dred Scott v. Sandford (1857).

28. Jones v. Commonwealth, 1 Call 555, 556-557 (1799).

29. Currie's Administrators v. The Mutual Assurance Society,
4 Henning and Munford 315, 347, 348-49 (1809).

30. Robert Lowry Clinton, Marbury v. Madison and Judicial
Review, (Lawrence, Kan.: University Press of Kansas, 1989),
76-77; Kermit L. Hall, The Magic Mirror: Law in American
History, (New York: Oxford University Press, 1989), 64;
William E. Nelson, "Changing Conceptions of Judicial Review:
The Evolution of Constitutional Theory in the States, 1790-
1860," University of Pennsylvania Law Review, 120 (June 1972),










1166-1185; Charles Grove Haines, The American Doctrine of
Judicial Supremacy, (New York: MacMillan Co., 1914), 57-58,
100-104; Marbury v. Madison, 1 Cranch 137 (1803). See also
John Thomas Wren, "Republican Jurisprudence: Virginia Law and
the New Order, 1776-1830," (Ph.D. Dissertation, College of
William and Mary, 1988).

31. See Smith, "Spencer Roane," 8-9; John Radabaugh, "Spencer
Roane and the Genesis of Virginia Judicial Review," American
Journal of Legal History, 6 (1962), 63-70; Nelson, Judicial
Review in Virginia, 31-38. Nelson writes: "Judge Roane, more
than any other person, helped to establish the practice of
judicial review in Virginia" (32).

32. Mays, "Judge Spencer Roane," 451; "Roane, Spencer,"
Dictionary of American Biography, vol. 7, (New York:
Scribner's, 1964), 417-418; "Biographical Sketch," Richmond
Enquirer, September 17, 1822; Mays, Edmund Pendleton, 300.

33. Morris, Virginia Supreme Court, 65; Frederick Thornton
Miller, "Juries and Judges versus the Law: Virginia from the
Revolution to the Confrontation between John Marshall and
Spencer Roane," (Ph.D. Dissertation, University of Alabama,
1986), 86-88.

34. Order Book, Supreme Court of Appeals, VI, 161f., Friday,
2 December 1808, as quoted in Beach, "Spencer Roane and the
Richmond Junto," 11-12, and paraphrased in Gelbach, "Spencer
Roane of Virginia," 43. Miller argues that Roane acted from
personal motives in introducing the resolutions--that he
sought only to strengthen his own position on the court.
However, the nature of the resolutions, particularly the one
regarding witness testimony, was such that Roane would
necessarily have benefitted little from their implementation.

35. Miller, "Judges and Juries versus the Law," 89; St. George
Tucker to Judge William Fleming, May 10, 1809, Wooldridge-
Fleming-Stanard Papers, Virginia Historical Society
(hereinafter cited as W.F.S. Papers).

36. "Opinion on the Question of the Rights of the Judges,
Propounded in Open Court, by Judge Roane May 11th 1809"; St.
George Tucker to Judge William Fleming, May 11, 1809; Judge
Creed Taylor to Judge William Fleming, April 20, 1810--all in
W.F.S. Papers. Miller, "Judges and Juries versus the Law,"
89.

37. Miller, "Judges and Juries versus the Law," 89.










38. Judge St. George Tucker to the Governor, April 2, 1811, as
published in Virginia Reports Annotated, vols. 1-3 Munford,
(Charlottesville, Va.: Mitchie Co., Law Publishers, 1903),
289-291; Miller, "Judges and Juries versus the Law," 89-90.
Miller contends that "Tucker waited for the first good excuse
to leave the court" (90).
Roane was probably not the impetus behind the judicial
reorganization act, as most figured he stood to lose some of
his power with the new appointments of Francis T. Brooke,
William H. Cabell, and John Coalter. (Cabell was a friend of
Tucker's, and Coalter was Tucker's son-in-law).

39. These figures are derived from all reported cases between
April 3, 1811 and September 4, 1822. (Not all cases appeared
in print.)

40. Historians generally concede that precedent was of
relative unimportance to Marshall, who seemed to place a
higher premium on notions of natural rights and natural law.
See, e.g., Robert Kenneth Faulkner, The Jurisprudence of John
Marshall, (Princeton, N. J.: Princeton University Press,
1968), 220; Leonard Baker, John Marshall: A Life in Law, (New
York: Macmillan Publishing Co., 1974), 552-556; G. Edward
White, American Judicial Tradition, 18-19. Cf., Julius
Goebel, Jr., "The Common Law and the Constitution," in W.
Melville Jones, ed., Chief Justice John Marshall: A
Reappraisal, (New York: Da Capo Press, 1971), 101-123.

41. Ballard v. Leavell & al., 55 Call 531, 533 (1805); Young
v. Gregorie and Another, 3 Call 446, 451 (1803); Johnson and
Others v. Johnson's Widow and Heirs, 1 Munford 549 (1810).

42. Kirtland, George Wythe, 232; Mays, Edmund Pendleton, II,
300-301; R. Kent Newmyer, Supreme Court Justice Joseph Story:
Statesman of the Old Republic, (Chapel Hill, N.C.: University
of North Carolina Press, 1985), 243-248; Baring v. Reeder, 1
Henning and Munford 154, 162-163 (1806).

43. Claiborne and Wife v. Henderson and Others, and Henderson
and Others v. Claiborne and Wife, 3 Henning and Munford 322,
375-76 (1809). In other instances, as well, Roane overlooked
Virginia precedents and turned instead to English authorities.
See, e.g., Commonwealth v. Martin's Executors and Devisees, 5
Munford 117 (1816), Harrison Dance's Case, 5 Munford 349
(1817).

44. F. Thornton Miller, "The Richmond Junto: the Secret All-
Powerful Club--or Myth," Virginia Magazine of History and
Biography, 99 (January, 1991), 63-80, 67 (quote).










45. Miller, "Richmond Junto," 67. In 1822, some Virginians
considered Roane to be a serious presidential candidate for
the election of 1824. Roane died, however, later in 1822.
(F. W. Gilmer to John Randolph, January 27, 1822, as published
in "Letters of Francis Walker Gilmer to John Randolph,"
Tyler's Quarterly Historical and Geneological Magazine, 6
[January, 1925], 190-191.)

46. Hunter v. Martin, 4 Munford 1 (1814), reprinted in
Richmond Enquirer, February 1, 1816; Fairfax's Devisee v.
Hunter's Lessee, 7 Cranch 603 (1813). The Supreme Court, of
course, eventually challenged the Virginia Court of Appeals'
refusal to adhere to Fairfax by issuing a second decision in
Martin v. Hunter's Lessee (1816). This case presented,
through the clash of two important judicial tribunals, the
larger question of sovereignty in the new nation. See F.
Thornton Miller, "John Marshall v. Spencer Roane: A
Reevaluation of Martin v. Hunter's Lessee," Virginia Magazine
of History and Biography, 96 (July, 1988), 297-314.

47. 4 Munford 1, 33.

48. 4 Munford 1, 34.

49. Commonwealth v. Cobbett, 3 Dallas 467 (1799).

50. 4 Munford 1, 31-32, 52-53.

51. Beach, "Judge Spencer Roane," 41; Gelbach, "Spencer Roane
of Virginia," 105; Horsnell, Spencer Roane, 33-34, all concur
on this issue.

52. Jefferson to Roane, October 12, 1815; Roane to Jefferson,
October 22, 1815, in Thomas Jefferson Papers, Series 1,
Library of Congress; Caleb Perry Patterson, The Constitutional
Principles of Thomas Jefferson, (Austin, Tex.: University of
Texas Press, 1953), 151-154; David Mayer, The Constitutional
Thought of Thomas Jefferson, (forthcoming by University Press
of Virginia).

53. Roane to James Barbour, January 4, 1815, as published in
"Letters of Spencer Roane," 169.

54. McCulloch v. Maryland, 4 Wheaton 316 (1819); Richmond
Enquirer, June 11, 15, 18, 22, 1819. These essays, under the
pseudonym of "Hampden," are reprinted in Gerald Gunther, ed.,
John Marshall's Defense of McCulloch v. Maryland, (Stanford,
Calif.: Stanford University Press, 1969), 106-54.


55. Gunther, John Marshall's Defense, 138-139.











56. Gunther, John Marshall's Defense, 124.

57. Gunther, John Marshall's Defense, 121.

58. Gunter, John Marshall's Defense, 111, 151-152.

59. Jefferson to Roane, September 6, 1819, as published in
Paul L. Ford, The Writings of Thomas Jefferson, vol. 10, (New
York: G. P. Putnam's Sons, 1899), 140-143; Roane to James
Barbour, January 30, 1819, in "Letters of Spencer Roane," 171-
172.

60. Roane to James Barbour, December 29, 1819, as published in
"Missouri Compromise: Letters to James Barbour, Senator of
Virginia in the Congress of the United States," William and
Mary Quarterly, ser. 1, 10 (July, 1901), 7-8.

61. Roane to James Monroe, February 16, 1820, as published in
"Letters of Spencer Roane," 174.

62. Cohens v. Virginia, 6 Wheaton 264 (1821); R. Kent Newmyer,
The Supreme Court under Marshall and Taney, (Arlington
Heights, Ill.: Harlan Davidson, Inc., 1968), 47-48; G. Edward
White, The Marshall Court and Cultural Change, 1815-1835, (New
York: Macmillan Publishing Company, 1988), 504-524.

63. Roane essay in Richmond Enquirer, as published in Stanley
I. Kutler, John Marshall: Great Lives Observed, (Englewood
Cliffs, N. J.: Prentice-Hall, Inc., 1972), 108.

64. Roane essay in Richmond Enquirer, as published in Kutler,
John Marshall, 112-113; Roane to Archibald Thweatt, December
11, 1821, as published in "Roane Correspondence," John P.
Branch Historical Papers, 2 (June, 1905), 140-141.

65. G. Edward White, The Marshall Court and Cultural Change,
1815-1835, (New York: Macmillan Publishing Company, 1988),
523; Roane to Archibald Thweatt, December 24, 1821, as
published in "Roane Correspondence," John P. Branch Historical
Papers, 2 (June, 1905), 141-142.

66. Nelson, "Changing Conceptions of Judicial Review," 1166-
1185; Robert P. Sutton, "Nostalgia Pessimism, and Malaise:
The Doomed Aristocrat in Late-Jeffersonian Virginia," Virginia
Magazine of History and Biography, 76 (January, 1968), 41-55.

67. Goddin v. Crump, 8 Leigh (35 Va.) 120 (1837), as quoted in
Nelson, Study of Judicial Review in Virginia, 34.








70

68. Morris, Virginia Supreme Court, 68; Arthur Bestor, "State
Sovereignty and Slavery: A Reinterpretation of Proslavery
Constitutional Doctrine, 1846-1860," Journal of the Illinois
State Historical Society, 54 (Summer, 1961), 117-180; Don E.
Fehrenbacher, Constitutions and Constitutionalism in the
Slaveholding South, (Athens, Ga.: University of Georgia
Press, 1989); Marshall L. DeRosa, The Confederate Constitution
of 1861: An Inquiry into American Constitutionalism,
(Columbia, Mo.: University of Missouri Press, 1991). On
judges, see John R. Schmidhauser, "Judicial Behavior and the
Sectional Crisis of 1837-1860," Journal of Politics, 23
(November, 1961), 615-640.

69. White, American Judicial Tradition, 7-34, esp. 21-24.















CHAPTER 3
WILLIAM JOHNSON AND SOUTHERN JUDICIAL NATIONALISM
ON THE U. S. SUPREME COURT


My reputation is the property of the United States.
It is in safe hands and defies scrutiny. But I
wish to live in harmony with those around me. The
smiles of my fellow citizens are dear to me.
William Johnson, 18221



While Spencer Roane spent his career consolidating and

defending judicial power at the state level, a course that

earned him a reputation as a champion of state sovereignty,

Justice William Johnson of South Carolina contributed to the

expansion of national authority during a lengthy tenure on the

U. S. Supreme Court. In thirty years of judicial service,

Johnson wrote over one hundred sixty opinions and figured

prominently in the nation's earliest debates over the

substance and interpretation of the Constitution. Historians

have failed to recognize Johnson's achievements, but his

contemporaries and successors within the judicial community

readily acknowledged his contributions as a justice. Judge

John B. O'Neall, antebellum chief justice of South Carolina,

for example, observed in 1859 that Johnson's decisions "are

still quoted as the judgments of an able, upright and

independent Judge." In 1937, over a century after Johnson's








72

death, Justice Felix Frankfurter likewise contended that

"Johnson's opinions reveal a downright character, tough-

mindedness, and intellectual energy not second to that of the

Chief Justice."2 Despite such claims, Marshall's

accomplishments have largely overshadowed Johnson's work.

Paradoxically, Johnson was both Marshall's greatest foe

and his staunchest ally. As Donald Morgan noted in his 1954

biography, Johnson was the Court's "first dissenter," who

often took issue with Marshall and Justice Joseph Story on

questions dealing with admiralty jurisdiction and the federal

common law of crime.3 Yet, on the issues most crucial to the

young republic, questions relating to the appropriate

distribution of state and federal powers over matters of

contracts and commerce, Johnson promoted an economic

nationalism strikingly similar to that of Marshall. Although

Jeffersonian in political affiliation and southern by birth,

Johnson believed that states possessed neither the authority

to interfere with existing contractual relationships nor the

power to regulate commerce among the states. Johnson's

opinions created tensions not only with the President who

appointed him, Thomas Jefferson, but also with many of the

political leaders in Johnson's native South Carolina. In a

state where blacks outnumbered whites, such economic matters

were continually intertwined with the potentially more

explosive issues of slavery and race. Johnson's economic

nationalism, like the "Tariff of Abominations," thus assumed








73

a dangerous form in the eyes of many South Carolinians, and

beginning in 1822, Johnson found himself drawn into a decade

of intense political conflict with many in the state. Thus,

as a Supreme Court justice, Johnson developed a tremendous

loyalty to the national government, but at the expense of

political alienation within both his party and home state.

Johnson's early life and background helped to shape his

economic nationalist ideology. Born in 1771 in Charleston,

Johnson grew up in one of the most flourishing commercial

centers on the Atlantic seaboard, a city dominated by the

ethos of an expanding market economy. Unlike other parts of

seventeenth and eighteenth century America, according to Peter

Coclanis, a market orientation had existed in the South

Carolina low-country for some time. Rational utilization of

the area's productive resources, responsiveness to price, and

the pervasiveness of exports and long-distance trade in

Charleston's economy all pointed to the dominance of a market

mentality.4 Charleston stood at the core of the low-country's

trading network: as rice, indigo, and, eventually, cotton

flowed into the city from peripheral plantation areas, the

city's port served as the primary point of distribution.

Trade with England accounted for most of the low-country's

commercial transactions, although intercourse with other

colonies on the American mainland also played a significant

role in the area's economy. Charleston's closest ties on the

continent, outside of its immediate vicinity, were with








74

northern commercial centers like New York City.5 As a young

man, having seen low-country planters float their rice and

indigo down the Ashley and the Cooper Rivers to Charleston and

having watched scores of maritime traders sail in and out of

the city's harbor, Johnson understood the importance of

commercial activity. The "honourable calling" of commerce, he

wrote years later, "connects the remotest of nations of the

earth into one society, diffuses to all the enjoyment of each,

illustrates the triumphs of mind over the powers of the mighty

deep, and sheds the lights of science and religion, into the

remotest corners of the world in which man has sought for

subsistence or concealed himself from oppression."6 With

commerce, in Johnson's view, came intellectual and moral

progress, as well as contact between peoples of different

backgrounds and cultures. Charleston's commercial world

helped Johnson to see beyond the provincial interests of the

South.

Johnson's family history also contributed to his budding

nationalism. Born the son of blacksmith William Johnson, Sr.

and Sarah Johnson, the younger Johnson matured during the era

of the American Revolution and the founding of the national

government. His father, along with Christopher Gadsden, led

a group of artisans and mechanics who figured prominently in

the Revolution in Charleston, and the elder Johnson's

revolutionary activities made a lasting impression on his

son.7 As a young man, Johnson developed a deep reverence for








75

the cause of national independence and an intense respect for

the heroes of the war. Later in his career, he often referred

to the revolutionary effort in his speeches, writings, and

judicial opinions, always glorifying it as a significant

turning point in human history. "Conceived in wisdom,

prosecuted with vigor, and concluded with glory," Johnson

typically proclaimed in an Independence Day Oration in 1812,

"the American Revolution is one of those events which, at

times, are presented to the world, as a 'pillar of fire,' to

conduct man to that high destiny for which his powers are

calculated."8 Like so many of the revolutionary generation,

Justice Johnson often used the War for Independence as a

reference point in articulating his political and

constitutional views. Yet, he also showed an unusually keen

interest in the war by devoting years to writing a biography

of General Nathanael Greene, one of the heroes of the southern

theater. Johnson greatly admired the men of action in the

Revolution--leaders like his father, Gadsden, and Greene--and

cherished the revolutionary ideal of national unity.9 In

Johnson's view, more than just an example of historical

heroism, the struggle for independence was a crucial

historical event to which future generations of Americans

could look for guidance and vision.

Though bustling and prosperous, post-revolutionary

Charleston was a city of wide social disparities, and as the

son of an artisan, Johnson soon became aware of these








76

distinctions."1 Still, his ambitious and politically-active

father managed to take the steps necessary to assure

respectability and a promising future for his namesake. In

the years after the Revolution, while the elder Johnson

labored for the ratification of the nation's new constitution,

he enrolled his son in the College of New Jersey (later

Princeton). After graduating with highest honors in 1790, the

younger Johnson returned to Charleston, entered the law office

of Charles Cotesworth Pinckney, and prepared for entrance into

the legal profession.11

As a young lawyer during the 1790s, Johnson strove to

establish a reputation within the city's legal community,

advance in Charleston's stratified society, and launch a

career in politics. Despite his solid educational background,

it was not easy for Johnson to enter the ranks of the

Charleston lawyer-elite. Composed of the sons of wealthy

merchants and planters, many of whom had studied law at the

Inns of Court in England, the city's legal community included

such influential individuals as John Rutledge, William

Drayton, Edward Rutledge, John J. Pringle, and Jacob Read.12

Although studying under the esteemed Pinckney assisted Johnson

in his quest for respectability, the young lawyer of common

birth still encountered prejudice, and perhaps some hostility,

from his colleagues. Johnson's political preference certainly

did not help him among this group. While many of Charleston's

lawyers were Federalists ideologically if not by affiliation,








77

Johnson loyally supported both the Jeffersonian Republicans

and the controversial revolution in France. Still, however

difficult he found it to gain the approval of those in his own

profession, Johnson gradually ascended the social ladder. In

1794, the South Carolina Society, an organization of leading

Charlestonians who supported philanthropic causes, admitted

him to membership, and later that year he married Sarah

Bennet, the daughter of a prominent architect. In October,

1794, Johnson earned the first significant achievement of his

public life, winning election to the state house of

representatives. After a brief career in the legislature,

during which he held the position of house speaker, Johnson

was appointed judge of the state court of common pleas in

December, 1799.13

Johnson's career on the South Carolina bench was brief

and uneventful, but he nonetheless succeeded in gaining favor

among leading Republicans in the state. His connections soon

paid off. In 1804, with the resignation of U. S. Supreme

Court Justice Alfred Moore of North Carolina for health

reasons, President Thomas Jefferson began a search for his

first appointee to the Court. Any candidate for the position,

the President made clear, would require two qualifications:

loyalty to the Jeffersonian cause and appropriate geographical

ties. Because both the Sixth and Second circuits were not

represented on the Court, only candidates from New York, South

Carolina, or Georgia received consideration. Johnson's name








78

appeared in a list of potential justices from South Carolina

prepared by lawmakers Wade Hampton and Thomas Sumter. Their

recommendation was pivotal. The two seemed to cast doubt on

all the potential appointees on the list except for Johnson.

Hampton and Sumter questioned the political loyalty, for

example, of John J. Pringle, the state's attorney general, and

Thomas Waties, a judge on the state supreme court. "Both are

so moderate that they only vote with the Republicans; they

never meddle otherwise," Hampton and Sumter informed the

President. In contrast, described as "an excellent lawyer,

prompt, eloquent, of irreproachable character," with

"republican connections" and "good nerves in his political

principles," Johnson, who appeared to be a rising star within

the profession, caught the eye of the President. Barely

thirty-two years old, he had already ascended from humble

origins to become Speaker of the House in the state

legislature and a member of the South Carolina Supreme Court.

Although not personally acquainted with Johnson, Jefferson

sent the name of the young judge to the Senate on March 22,

1804, where he was easily confirmed.14

The prospective justice's political views were of

paramount importance, as Johnson's appointment came at a

turbulent time in American constitutional history. For a

decade, Jeffersonians had decried the abuses of an imperial

judiciary under Federalist control, and, upon Jefferson's

election, many in the party hoped to initiate constitutional








79

reforms that would limit--or eliminate--an independent

judiciary. After successfully repealing the Judiciary Act of

1801, a mix of partisanship and well-intentioned reform that

increased the Federalists' power in the aftermath of their

defeat, Jefferson aspired to transform the Supreme Court.

Although the degree of Jefferson's partisan motives in his

administration's relationship with the Court is a subject of

some debate, there is no doubt that political considerations

played a significant role at least in the appointment of

Johnson. As G. Edward White notes, Jefferson intended Johnson

"to be something of a lieutenant in the war Jefferson hoped to

wage against a Federalist-dominated Court."15

Johnson joined the nation's highest tribunal in 1804, at

a time when the Court had a poor reputation and lacked

authority. Relegated to the basement of the Capitol, the

justices lost even these unimpressive quarters after British

troops sacked Washington in 1814. For the next half decade,

the Court had to set up temporary courtrooms, first in a

private home and later in the Capitol, until they returned to

their basement courtroom in 1819.16 The Court's membership,

meanwhile, was almost as variable as its location. After

Johnson's appointment, eight new justices joined the bench and

sat alongside him at one time or another during his career,

including four new justices during his first seven years.

Despite the lack of stability and continuity on the Court

during these early years, one figure remained constant








80

throughout Johnson's tenure: Chief Justice Marshall. Like

Spencer Roane, Marshall attempted to bring unanimity to the

Court by replacing the practice of delivering seriatim

opinions with the issuing of unanimous "opinions of the

Court." Marshall's familiarity with this procedure stemmed

both from his admiration of Lord Mansfield, who instituted

this system on the King's Bench in England, and from his

experience with Edmund Pendleton, whom Marshall had

encountered when arguing cases before the Virginia Court of

Appeals." By issuing unanimous opinions, Marshall hoped to

establish the Court's reputation and strengthen its authority.

Although Johnson, from his South Carolina experience, was

accustomed to delivering seriatim opinions, Marshall and the

other justices impressed upon him the need for cooperation.

Later in his career, when reflecting upon his early

experiences with his fellow justices, Johnson explained in

part the decision-making dynamics of the Marshall Court.

"Some case soon occurred in which I differed from my

brethren," he wrote, "and I thought it a thing of course to

deliver my opinion. But, during the rest of the session I

heard nothing but lectures on the indecency of judges cutting

at each other, and the loss of reputation which the Virginia

appellate court had sustained by pursuing such a course. At

length I found that I must either submit to circumstances or

become such a cypher in our consultations as to effect no good

at all."'1 Marshall's leadership, combined with a close








81

working and living environment among the Justices in the

nation's capital, contributed to the cooperative nature of

their decisionmaking."

Thus, when he began his career on the Supreme Court in

the first decade of the nineteenth century, Johnson arrived as

the assumed leader of the new Jeffersonian wing of the

judiciary and the supposed representative of southern

interests. During the next thirty years, however, Johnson

displayed, as John Belton O'Neall later described, an

"inflexible, almost haughty independence of political

authority on the one hand, and popular opinion on the

other."20 He pleased neither Jeffersonians nor South

Carolinians, and he delivered more dissenting opinions in

opposition to the Marshall-led majority than any justice in

Supreme Court history up to that time. Still, it was his

overall similarity to Marshall--particularly on nationalistic,

economic issues--that caused him to incur the wrath of so

many.

Johnson showed early signs of defection from party

orthodoxy. Although his most significant break with

Jefferson--over the issue of state versus federal power--did

not arise until later in his career, the new justice soon

demonstrated that he would not be the President's judicial

representative. In 1807, Jefferson had urged the Congress to

pass the embargo bill, in order to halt the increasing

harassment of American ships on the high seas, particularly at








82

the hands of the British navy. Intended to ban all exports as

well as incoming trade from both foreign and American vessels,

the Act required local customs collectors to detain any vessel

ostensibly bound with cargo to American ports, whenever, in

the opinion of the collector, the ship intended to evade the

embargo. In a very un-Jeffersonian exercise of executive

power, however, the President ordered customs collectors to

seize all cargo vessels, not just those that the collectors

determined were in violation of the embargo. When a legal

test of Jefferson's order came before the South Carolina

Circuit Court in Charleston in Ex Parte Gilchrist (1808),

Justice Johnson, riding the circuit in his home state,

expressed for the first time his opposition to the President

who had appointed him.21

Johnson held that Jefferson's instructions violated the

law. "We are of the opinion," the Justice wrote, "that the

act of Congress does not authorize the detention of this

vessel. That without the sanction of law, the Collector is

not justified, by the instruction of the executive, in

increasing restraints upon commerce."2 In only his fourth

year on the Court, Johnson did not hesitate to criticize

Jefferson for exceeding the bounds of executive power under

the law. "The officers of our government, from the highest to

the lowest," Johnson argued, "are equally subjected to legal

restraint; and it is confidently believed that all of them

feel themselves equally incapable, as well from law as









83

inclination, to attempt an unsanctioned encroachment upon

individual liberty.""23 Johnson's decision clearly displeased

Jefferson, who, upon receiving the proceedings of the

Gilchrist case from South Carolina's Governor Pinckney,

expressed his "great concern, because of the quarter from

whence they came and where they could not be ascribed to any

political waywardness." Seeing the need to overcome this

embarrassment, Jefferson responded to Johnson's apparent

disloyalty by ordering Attorney General Ceasar Rodney to issue

a counter-opinion in the case. "This question," the President

wrote to Governor Pinckney, "has too many important bearings

on the constitutional organization of our government to let it

go off so carelessly." Rodney's opinion insulted Johnson, who

saw the publication of the counter-judgment as designed to

cast doubt on the authority of the courts. Johnson publicly

denounced the President, who, he said, used "the overbearing

influence of high office" to attain his political ends.24

The opinion in Gilchrist highlighted two characteristics

that in many ways marked Johnson's career. First, it showed

his willingness to defy those to whom he supposedly owed

political debts. Johnson was an independent-minded judge, who

placed a higher value on maintaining his principles than on

bending to the wishes of political interests. In his view,

Jefferson's attempts to extend the scope of the Embargo Act

clearly constituted an excess of executive power, and Johnson

did not hesitate to break with the party of Jefferson on this








84

issue. Second, and equally important, the Gilchrist opinion

revealed early in his career Johnson's belief in the supremacy

of Congress on matters of commercial regulation. Only the

legislative branch, he believed, possessed the power to

regulate interstate commerce under the Constitution. While in

this instance Johnson fought executive interference with this

exclusive power, in subsequent decisions he attempted to curb

state efforts to interfere with commercial activity.

During the next decade and a half, Johnson exhibited

continued independence from Jefferson and a growing affinity

for Marshall's economic nationalism. In Fletcher v. Peck

(1810), a landmark case involving Georgia's Yazoo land

scandal, Johnson concurred with Marshall's opinion protecting

the rights of propertied interests and overruling a state law

that interfered with the obligation of contracts. In 1795,

the Georgia legislature had granted 35 million acres to four

private land companies at a price of less than one and one-

half cent per acre. When it was later discovered that the

land companies had bribed nearly all of the legislators,

voters returned the corrupt lawmakers to private life. In

1796 a new legislature rescinded the grant and voided all

property rights attached to it. The Supreme Court thus faced

a dilemma. If the justices denied the new legislature the

power to rescind the grants, they in effect condoned the

previous lawmakers' corrupt behavior. If, on the other hand,

the Court allowed the new legislature to take such an action,








85

they feared jeopardizing confidence in all such public grants

or private contracts--a position with potentially disastrous

economic consequences.2

Johnson concurred with Marshall's holding against the

state's attempt to rescind the original land grants. Wanting

to ensure the obligation of contracts and expand economic

growth, Marshall based his decision on the constitutional

prohibition on state laws impairing the obligation of

contracts. In contrast, Johnson did not interpret the

Contract Clause to forbid Georgia's actions in this case.

"The difficulty arises on the word 'obligation,' which

certainly imports an existing moral or physical necessity.

Now, a grant of conveyance by no means necessarily implies the

continuance of an obligation beyond the moment of executing

it. It is most generally but the consummation of a

contract .and continues afterwards to be nothing more

than the evidence that a certain act was done." Johnson, in

other words, believed that because the land grant had already

been made, no further "obligation" existed for either party to

the contract.26 The Contract Clause, therefore, did not

apply.

Instead, Johnson nullified the state law by combining a

close textualist reading of the Commerce Clause with a broad

interpretation of judicial power based on natural law. In

contrast to Marshall, Johnson upheld the authority of states

to continue to pass "beneficial" laws that at times might








86

interfere with the obligation of contracts. "To give [the

Contract Clause] the general effect of a restriction of the

state powers in favour of private rights," he argued, "is

certainly going very far beyond the obvious and necessary

import of the words, and would operate to restrict the states

in the exercise of that right which every community must

exercise." Having found no constitutional prohibition on

Georgia's rescinding act, Johnson grounded his opinion in

natural law. "I do not hesitate to declare that a state does

not possess the power of revoking its own grants. But I do it

on a general principle, on the reason and nature of things:

a principle which will impose laws even on the deity." The

Georgia legislature, in Johnson's view, having conveyed the

property to the land companies, lost all control of it.

Instead, the land became vested in each individual purchaser

and "intimately blended with his existence, as essentially

also as the blood that circulates through his system."

Johnson's reasoning lacked the clarity and definitiveness of

Marshall's opinion, but the results were the same. By denying

the state's power to rescind the original land grants, both

sought to protect future economic investment.27

Johnson's continuing record of concurring with or

passively assenting to Marshall's opinions eventually drew a

polite, though stern, rebuke from Jefferson. Johnson

expressed no opposition to the Chief Justice in a trio of key

decisions in 1819. Marshall's opinion in McCulloch v.








87

Maryland extended the federal government's authority under the

Commerce Clause by invalidating a Maryland tax on the national

bank. Dartmouth College v. Woodward and Sturges v.

Crowninshield, moreover, extended federal power through the

Contract Clause by broadly interpreting the term "contract"

and striking down state laws that threatened to hinder

national economic expansion. With these decisions, Marshall

firmly established federal supremacy.28 Johnson's tacit

agreement signalled his growing acceptance of the Court's

national economic blueprint, a fact which irked the former

President. In a series of letters to his first Supreme Court

appointee, Jefferson criticized Johnson by lambasting those

who advocated Federalist principles and policies yet callede]

themselves by the name of Republicans." "[F]inding that

monarchy is a desperate wish in this country," Jefferson

contended, "they rally to the point which they think next

best, a consolidated government. Their aim is now therefore

to break down the rights reserved by the Constitution to the

states as a bulwark against that consolidation, the fear of

which produced the whole of the opposition to the Constitution

at its birth."29

Because he believed the Supreme Court to be at the root

of this usurpation of state power, Jefferson urged Johnson to

challenge the Court's majority. "[T]here is no danger I

apprehend so much," Jefferson wrote to Johnson, "as the

consolidation of our government by the noiseless, and








88

therefore unalarming, instrumentality of the Supreme Court.

This is the form in which Federalism now arrays itself, and

consolidation is the present principle of distinction between

Republicans and the pseudo-Republicans but real Federalists."

Jefferson urged a return to seriatim decision making, as a

means by which Johnson and other Jeffersonian justices might

make their true sentiments known. When justices refused to

deliver their opinions separately, Jefferson believed, they

failed to fulfill their judicial duties and to make a public

account of their views on specific cases. Unanimous opinions,

Jefferson wrote, arrived at "in the dark," were "convenient

for the lazy, the modest & the incompetent."30 Although

clearly disappointed with the judicial performance of his

first Supreme Court appointee, Jefferson saw Johnson as the

potential leader of a dissenting Jeffersonian bloc on the

Court. Consequently, the former President urged Johnson to

challenge the established practices of the Court and to

reassert the power of individual states.

Johnson offered some immediate solace to Jefferson by

offering at least a rhetorical commitment to state sovereignty

principles in the nationally publicized case of Green v.

Biddle (1823). When Kentucky separated from Virginia to form

a new state in 1789, the two states entered into a compact in

which Kentucky agreed to recognize all land titles within its

territory previously issued under Virginia law. Subsequently,

land titles granted to absentee landlords in Virginia--and








89

never recorded in Kentucky--produced a plethora of conflicting

claims, as many Kentucky residents settled on vacant lands and

improved them, only to find that they did not have legal title

to the property. In an effort to provide relief for residents

caught up in such disputes, Kentucky passed laws requiring

that the deed holder reimburse the occupant of the land for

any improvements made on such property. By the time Green v.

Biddle came before the Court, the case had already been heard

three times and had stirred further debate over the role of

states in the federal system.31

The majority opinion invalidated the Kentucky laws.

Taking an expansive view of the Contract Clause, Justice

Bushrod Washington reasoned that the agreement between the two

states was a contract that could not be violated. In a

separate opinion, Johnson challenged Washington's reasoning

and argued that the Contract Clause did not apply to a compact

between two states. Moreover, if Virginia had in the compact

ceded the usual powers of a sovereign state to Kentucky,

Johnson contended, then Kentucky possessed the right of

unlimited legislative power within its own territory. "I

cannot admit that it was ever the intention of the framers of

this Constitution," Johnson wrote, "or of the parties to this

compact, or of the United States in sanctioning that compact,

that Kentucky should be forever chained down to a state of

hopeless imbecility .. having no power on earth

existing to repeal or alter, or to affect those accommodations








90

to the ever-varying state of human things, which the

necessities or improvements of society may require." Although

he rejected Washington's broad reading of federal power under

the Commerce Clause, Johnson joined Washington in invalidating

the Kentucky laws because they abridged the right to trial in

federal courts, which, according to Johnson, was "subject to

no other power than that of Congress."32 Johnson's opinion

in Green, therefore, was a mixed bag. While he again joined

the majority in invalidating a state law, he did--to

Jefferson's delight--issue a separate opinion that seemed

sympathetic to state power. At least to a degree, Jefferson's

lengthy admonitions had influenced Johnson's behavior.

While these early disputes with Jefferson involved

economic matters and the scope of the Supreme Court's power,

subsequent and more volatile controversy arose out of

Johnson's questionable commitment to southern orthodoxy on

matters of race. Johnson's difficulties back home began in

June, 1822, when he responded to the rash of rumors that had

swept the city of Charleston concerning the Denmark Vesey

conspiracy. Fearing that the mounting excitement might

undermine the civil authorities' attempts to handle the

situation calmly and justly, Johnson published his

recollection of an earlier incident in Georgia, where a

freeholders' court had hastily hanged a slave for blowing a

horn. Although "no evidence was given whatever as to a motive

for sounding the horn, .. popular demand for a victim" was








91

so great, Johnson wrote, "that it is not certain a pardon

could have saved him."33

Johnson's analogy to the Vesey situation was not lost on

the citizens of Charleston, who assailed the Justice for

expressing such views. A special court created to investigate

the Vesey conspiracy, composed of five respected members of

the community, particularly lashed out at Johnson's reckless

statements. In a letter to the Justice, the court members

described his story as "calculated to produce, not only a

distrust of our proceedings, but contained an insinuation,

that, under the influence of popular excitement, we were

capable of committing perjury and murder." They further

demanded an explanation and apology from Johnson. The

exchange between Johnson and the members of the court created

such a controversy in Charleston that the Justice felt obliged

to respond in the form of a published pamphlet.34

The pamphlet, entitled "To the Public of Charleston,"

reveals how Johnson's service as a Supreme Court justice

affected his relationship to his home state and community.

Although he had hoped to gain the approbation of his fellow

Charlestonians, Johnson seemed deeply disappointed at their

receptivity toward the attacks levelled against him. "My

misfortune is," he explained, "that I have presumed too much

upon the hope, that the censures cast upon me would be

repelled, by a community with whom I was born and raised,

among whom I have spent a life now looking downward in its