Roane v. Innes

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Roane v. Innis, Wythe 243 (1793),[1] was a case in which Wythe interpreted a statute that awarded a half-pay pension to officers who served in a Virginia defense legion through the end of the Revolutionary War, in particular determining when the war ended for the statute's purposes.


In May of 1779, the Virginia Assembly passed An Act Concerning Officers, Soldiers, Sailors, and Marines.[2] Under this law, officers who served in the Continental Army through "the end of the war" would receive half-pay for the rest of their life. The state would also give half-pay pensions for life to "such officers who have, or shall become supernumerary on the reduction of any of the said battalions, and shall again enter into the said service if required so to do. . .and continue therein until the end of the war".[3]

In March of 1781, the Virginia Assembly passed an act to raise two legions for the defense of the Commonwealth of Virginia.[4] The plaintiffs were ten officers in one of these legions. Christopher Roane was the lead plaintiff in the case. The plaintiffs continued to serve in the legion until February 9, 1783, when the Governor of Virginia reduced the size of their battalions, discharged them from duty, and did not recall them to service.

The United States and Great Britain signed the preliminary version of the Treaty of Paris on November 30, 1782. The Governor of Virginia was notified of this signing and informed his council of the fact on April 19, 1783. The state disbanded its army on April 22, 1783.

The Virginia Assembly passed a law on December 16, 1790, verifying that officers who served the "state line" would also be entitled to half-pay for life after their service.[5] This law said that half-pay would also be given "to those who became supernumerary, and being afterwards required, did again enter into actual service, and continue therein to the end of the war".

The plaintiffs applied for their half-pay pensions with Virginia's auditor for public accounts, who denied them. The plaintiffs appealed the auditor's decision to the Richmond District Court, which referred the question to the General Court of Virginia.

The General Court said that the plaintiffs were entitled to the half-pay pensions because they served in the Virginia forces through the end of the war, which the General Court defined as when the preliminary Treaty of Paris was signed on November 30, 1782.

Based on the General Court's answer, the District Court overruled the state auditor and ordered him to grant the plaintiffs the half-pay pensions.

The Commonwealth of Virginia, represented by Attorney General James Innis, appealed the decision to the Virginia Supreme Court of Appeals, which reversed the District Court's decision and affirmed the auditor in an unpublished decision on May 2, 1792. The Supreme Court said that there were two groups of officers who were eligible for pensions:

  • Officers who served from the time they signed on until the end of the war unless unavoidably prevented from serving "by being prisoners of war, on parole, or otherwise" (italics in Wythe's report).
  • Officers who were discharged because the government reduced the size of their battalion, then were called back and returned to service through the end of the war.

The Supreme Court held that for purposes of the May 1779 statute (and therefore the 1790 law as well), the war ended when the governor disbanded the state's army on April 22, 1783. Because the plaintiffs were discharged and did not return to duty before that date, the court said that they were not entitled to the half-pay salary.

The Supreme Court said the plaintiffs were free to re-apply for pensions if they could offer new evidence to the auditor, so they applied again, and the auditor rejected their applications again. This time, the plaintiffs filed a bill with the High Court of Chancery against Innis, the state treasurer, and the auditor, asking to be given half-pay pensions.

Wythe originally planned to reject the bill for lack of jurisdiction because the plaintiffs had adequate remedies under the common law and did not seem to present any new evidence in their re-application, but the defendants consented to having the case heard in equity by the Chancery Court, so Wythe heard the case in October 1793.

The Court's Decision

The Chancery Court ordered the auditor to award the plaintiffs half-pay pensions for life, or alternatively, a lump-sum payment of five years' worth of pension payments.[6]

Wythe said that the plaintiffs were just as entitled to a half-pay pension as the officers who were discharged on April 22, 1783, for whom the Supreme Court had allowed it. They were still serving Virginia as of November 30, 1782, when the provisional Treaty of Paris was signed, so they served to the end of the war. The only other possible date that could be called the "end of the war" for purposes of the 1779 Act would be September 3, 1783, when the final treaty was signed - but if that was the case, then why did the officers who were discharged in April 1783 get pensions?

Wythe's Discussion

Wythe's discussion of this case was a defense against the Supreme Court's May 1792 decision, probably anticipating an appeal of his decision to that court.

Wythe noted that the Supreme Court said an officer who was restrained from serving until the end of the war by "being prisoners of war, on parole, or otherwise" would be entitled to a pension. Wythe asked why being discharged due to a reduction in battalion size would not count as "otherwise".

Wythe also noted a discrepancy between how he and the Supreme Court read the 1779 Act. Wythe interpreted the act to mean that any officer who served in the Continental Army, was discharged, and did not refuse to return to service if so requested before the war's end was entitled to a pension. The Supreme Court's reading said that only officers who were actively serving at the end of the war could get a pension. If the officer was discharged and not called back to duty, then no pension. At any rate, officers such as the plaintiffs who served in the Virginia state defense forces did not seem to be covered by the 1779 Act's rules on pensions, which is why the assembly passed the 1790 Act. And the 1790 Act's plain language said that only officers who were actively serving when the war ended were entitled to a pension.

Wythe said that by allowing officers discharged in April 1783 to get pensions, the Supreme Court effectively ruled that the provisional articles signed in November 1782 ended the war. The final treaty was not signed until September 1783, so the Supreme Court obviously did not consider that date to be the end of the war. In its decision, the Supreme Court defined the end of war for pension purposes as the day when the Governor of Virginia was notified of the preliminary treaty signatures and then informed the forces' officers of that fact. That, however, is not the deal the officers signed up for. Nowhere in the 1779 Act does it mention the war ending when the Governor of Virginia tells the officers it does. One state governor's act cannot end a war between nations. Making a gubernatorial action the official end of the war would leave some officers trapped in the same situation as Tantalus as described by Petronius:[7] pension so close, but just beyond reach because the officer was discharged just shortly before the governor learned of the treaty's signing. Surely that could not have been the Assembly's intent when it passed the 1779 and 1790 acts.

The Supreme Court of Appeals Reverses Wythe

After Wythe published his reports, the Commonwealth of Virginia appealed his decision in Roane v. Innis, and in October of 1797, the Supreme Court reversed the Chancery Court.[8]

Supreme Court Judge Roane (no apparent relation to the lead plaintiff) said he could find no difference between the most recent iteration of the case and the original version that the Supreme Court heard in 1792. Roane said that while courts of equity such as the Chancery Court theoretically have the power to set aside strictures the courts of law must follow, this is not one of those situations. Courts of law have the sole power to interpret statutes, and courts of equity are bound by those interpretations.[9]

Judge Roane added that that he would find it inequitable to place part-time officers such as the plaintiffs on the same footing as officers who served Virginia and the United States through the entire course of the war when it came to pensions. He also said that the plaintiffs could have insisted on keeping their command when the state discharged them rather than readily accepting the offer of retirement.[10] If the plaintiffs had applied to the legislature for relief instead of the courts, Roane thought they might have met with better results. That is not what happened, though, so Roane believed himself obligated to apply the law as the Supreme Court previously dictated it. The Supreme Court previously said that the governor had the power to say when the war was ended, and he did so by official act on April 22, 1783. So, the war ended for pension purposes on April 22, 1783.

Supreme Court Judge Lyons agreed with Judge Roane that the plaintiffs' partial performance did not entitle them to the same pension as officers who had served through the entire war. The plaintiffs were able to enter and leave service as they wished, and so had not earned a right to a pension as did those who were bound to serve through the entire war. Lyons believed that the state's pension offer to the plaintiffs was more of a bounty; if the plaintiffs were actively serving when the war ended, they earned the bounty. If they happened to not be serving when the war ended, no bounty. Roane also agreed that the governor had the power to say when the war was over, and the governor did so on April 22, 1783.

Works Cited or Referenced by Wythe

Petronius's Satyricon

Quotation in Wythe's opinion:

Nec bibit inter aquas, nec poma natantia carpit. — Petronius Arb. Translation: Can neither drink the water nor grasp the fruit swimming nearby. Wythe modifies Petronius' original: “Non bibit inter aquas, poma aut pendentia carpit" ("[Poor Tantalus] stands in water and never drinks, nor plucks the fruit above his head").[11]


  1. George Wythe, Decisions of Cases in Virginia by the High Court of Chancery with Remarks upon Decrees by the Court of Appeals, Reversing Some of Those Decisions, 2nd ed., ed. B.B. Minor (Richmond: J.W. Randolph, 1852), 243.
  2. Ch. 6, 10 Hening 23 (May 1779 Session). In the text of the Roane opinion, Wythe cites this as "1779 c. 4". It is not clear whether this was a printer's error, a mistake by Wythe, or something else. William Hening notes in his compilation of Virginia statute that the laws passed during the May 1779 session did not originally have chapter numbers. 10 Hening 9.
  3. 10 Hening 23, 25.
  4. Ch. 1, 10 Hening 391 (Mar. 1781 Session).
  5. Ch. 21, 13 Hening 131 (Oct. 1790 Session).
  6. According to Wythe, the Supreme Court had allowed the lump-sum payment as an alternative for some people who were found eligible for pensions in the past. Wythe 248, fn b.
  7. Nec bibit inter aquas, nec poma natantia carpit. ("Can neither drink the water nor grasp the fruit swimming nearby.") Petronius Arbiter, Titi Petronii Arbitri Equitis Romani Satyricon (Amstelodami: Typis Ioannis Blaev, 1669): 309.
  8. Innis v. Roane, 8 Va. (4 Call) 379 (1797).
  9. One of George Wythe's biographers, Robert B. Kirkland, thinks that this part of Roane's opinion triggered Wythe's remarks about how arbitrary the governor's and the Supreme Court's ending date of April 22, 1783, was. Robert B. Kirkland, George Wythe: Lawyer, Revolutionary, Judge (New York: Garland Publishing, Inc., 1986): 235-6. However, the editor of the second edition of the Wythe Reports says that Wythe's remarks were a reaction to the Supreme Court's 1792 decision, and that the 1797 opinion came down after Wythe had already published his remarks on Roane v. Innis. Wythe 248, fn. *.
  10. Really?
  11. Wythe 253. Original Petronius Translation: M. Heseltine.