To Spencer Roane
Monticello Oct. 12. 15.
I recieved, in a letter from Colo Monroe the inclosed paper communicated, as he said, with your permission, and even with a wish to know my sentiments on the important question it discusses. it is now more than 40. years since I have ceased to be habitually conversant with legal questions; and my pursuits thro’ that period have seldom required or permitted a renewal of my former familiarity with them. my ideas at present therefore, on such questions, have no claim to respect but such as might be yielded to the common auditors of a law argument.
I well knew that in certain federal cases the laws of the US. had given to a foreign party, whether pl. or def. a right to carry his cause into the federal courts; but I did not know that where he had himself elected the state judicature, he could, after an unfavorable decision there,1 remove his case to the federal court, and thus take the benefit of two chances where others have but one: nor that the right of entertaining the question in this case had been exercised or claimed by the federal judiciary after it had been postponed on the party’s first election. his failure too to place on the record the particular ground which might give jurisdiction to the federal court, appears to me an additional objection of great weight. the question is of the first importance. the removal of it seems to be out of the analogies which guide the two governments on their separate tracts, and claims the solemn attention of both judicatures, & of the nation itself. I should fear to make up a final opinion on it, until I could see2 as able a developement of the grounds of the federal claim as that which I have now read against it. I confess myself unable to foresee what those grounds would be. the paper inclosed must call them forth, and silence them too, unless they are beyond my ken. I am glad therefore that the claim is arrested, and made the subject of special and mature deliberation. I hope our courts will never countenance the sweeping pretensions which have been set up under the words ‘general defence and public welfare.’ these words only express the motives which induced the Convention to give to the ordinary legislature certain specified powers which they enumerate, and which they thought might be trusted to the ordinary legislature, and not to give them the unspecified also; or why any specification? they could not be so awkward in language as to mean, as we say, ‘all and some.’ and should this construction prevail, all limits to the federal government are done away. this opinion, formed on the first rise of the question, I have never seen reason to change, whether in or out of power; but on the contrary find it strengthened and confirmed by five & twenty years of additional reflection and experience: and any countenance given to it by any regular organ of the government, I should consider more ominous than any thing which has yet occurred.
I am sensible how much these slight observations, on a question which you have so profoundly considered, need apology. they must find this in my zeal for the administration of our government according to it’s true spirit, federal as well as republican, and in my respect for any wish which you might be supposed to entertain for opinions of so little value. I salute you with sincere & high respect and esteem.
RC (CU-L). PoC (DLC); at foot of first page: “Judge Roane.” Tr (MHi); posthumous copy.
Spencer Roane (1762–1822), public official and author, attended the College of William and Mary and read law under George Wythe before his admission to the bar in 1782. He represented Essex County for two terms in the Virginia House of Delegates, 1783–85, and he sat on the Virginia Council of State, 1785–86. In 1786 Roane married Patrick Henry’s eldest daughter. The following year he joined Henry in the antifederalist camp by writing a pseudonymous newspaper letter arguing against ratification of the United States Constitution until a bill of rights was added. Later in life Roane wrote pseudonymous newspaper essays challenging decisions handed down by United States chief justice John Marshall. After serving for one session and part of a second in the state senate, 1788–89, in the latter year the legislature appointed Roane to the Virginia General Court. In 1794 he received a new appointment to the Court of Appeals, the state’s highest tribunal, on which he served until his death. Roane was a prominent Virginia Republican described successively as a member of two informal leadership groups, the Richmond Essex Junto and the Richmond Party. He backed the presidential candidacy of James Madison in 1808 and supported the War of 1812. Roane subsequently advised TJ on his financial and legal burdens after the bankruptcy and death of Wilson Cary Nicholas (ANB description begins John A. Garraty and Mark C. Carnes, eds., American National Biography, 1999, 24 vols. description ends ; DAB description begins Allen Johnson and Dumas Malone, eds., Dictionary of American Biography, 1928–36, 20 vols. description ends ; Margaret Horsnell, Spencer Roane: Judicial Advocate of Jeffersonian Principles ; Leonard, General Assembly description begins Cynthia Miller Leonard, comp., The General Assembly of Virginia, July 30, 1619–January 11, 1978: A Bicentennial Register of Members, 1978 description ends , 149, 153, 171, 178; Washington National Intelligencer, 8 July 1807; TJ to Roane, 31 May 1822; Roane to TJ, 8 July 1822; Richmond City Hustings Court Will Book, 3:239–43; Richmond Enquirer, 13, 17 Sept. 1822).
1. Word interlined.
2. Word not in Tr.
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