Revolutionary Virginia’s Law and Lawyers

My middle daughter gave me “Murder in the Shenandoah: Making Law Sovereign in Revolutionary Virginia”, for Christmas. I was touched she thought I’d read a book from Cambridge’s Studies in Legal History; in fact, once I’d started found she was quite right. Her friend, Jessica Lowe, was trained in law but found legal history sufficiently beguiling to finish her doctorate with this dissertation. Full of footnotes, it is also rich with observations on law and human nature, clothed in a lovely style, that proves entertaining to even an uninformed reader.

Post Revolutionary America was building institutions uniquely and self-consciously American, true to its “republican” essence as it pushed westward. Lowe chooses a murder on July 4, 1791 in western Virginia to demonstrate this fluidity, creativity, tension. And, of course, that turbulent, productive time examined and argued the ancient questions: How does a legal system’s generalities deal fairly with particulars, how does it allow expression for the passions and sympathies of the community? One chapter, “The Bloody Code and the Logic of Legal Reform” examines the revisions of the code, as the communities expected internalization (and self control) as well as both understood and punished violence and passions. The movement (though this one too fast to be accepted) was illustrated in the contrast between the older code’s punishment for horse theft – death – and the revised (but not accepted) penalty in Jefferson’s proposed code of three years hard labor.

Lowe’s analysis is sociological as well – the context in which the laws played out: drunken brawls, familial responsibilities, the optimism immigrants brought of a better life, the pull of the frontier, honor issues, the exceptions for violence from a man deprived of his senses and besieged by “fits,” the role of class and wealth, of place and time are all considered in a packed 200 pages. She notes both that the verdict was not decided along class lines by the jurors, but also that class lines themselves were blurred in the new republic.

On that Fourth, John Crane and his harvesters did not take the holiday nor did his neighbor’s crew reaping is time sensitive, hard, and summer hot.
Shouting from one field to the other, the day included much trash talk, simmering “issues”, some grog. After threats and affronts from both sides, John Crane, “a gentleman’s son,” fights one of Campbell’s workers. He does not follow the conventions (which allowed considerable violence) but, as they tussle closely, pulls out a knife and guts Abraham Vanhorn, a wagoneer. Although he proclaims his innocence to the end, no one seems to doubt Crane did it. The jury is less sure as a whole if not individually – whether it was manslaughter or murder. The locked jury chooses to send it up to the next level. Lowe follows Crane’s fortunes until the last hope, a governor’s pardon, is denied and he is hung on July 6, 1792.

In the nine chapters covering that year, we get to know a varied group of Virginians – workers, lawyers, gentlemen. Some are on their way up and some on their way down; many will leave for places like Kentucky. She gives a richly textured picture of that place and that time: post war Virginia was “in motion, in the process of becoming and of departing, of encompassing and excluding.” (193)

St. George Tucker, who presided over the first trial as a circuit judge, personified that time. Sent from Bermuda to study at William and Mary in 1771, by 1791 he was a respected judge whose edition of Blackstone, published in 1793, would be central well into the following century. His goal was to make “the common law into a republican institution.” Tucker is fleshed out, his marriages and relations with his step-children and children developed. However, even minor actors are put (and belong) in an historical and national setting. For instance, Crane’s defense at the next level was handled by John Marshall.

The book delights in the movement between the nature of criminal law and of man. One of the richest is how issues of honor are intensified by that fluidity. The blurred lines of class mark both Crane’s wife’s taunt and Campbell’s men’s reaction; contradictory senses of honor might have made Crane’s family hesitant to use his violent “fits” until those final, desperate appeals. Lowe gives us a richer understanding of language (that “puppies” were fighting words). Tucker was sensitive to the affront of being called “bloodthirsty” because he had advocated for “a new idea of republican law; one with the judge as ‘guardian’ of republican liberty” (123) as opposed to the “arbitrary, overweening” justices criticized by earlier critics (122).

Lowe concludes: “Eighteenth-century Virginians were certainly Virginians first, but through their power, proximity, and participation, they were also in many ways defining, and would continue to define, what it means to be American.” She notes that “Virginia’s law, like its judges, was on the move, transitioning from the colonial to the ‘republican,’. . . from the inherited to the created” (196). The men she has shown represent partisan splits and differing judicial theories. A few years later, Marshall writes Tucker, bemoaning the way the political and partisan had become personal and divisive. Crane effectively represents the particular, but one, caught in a time “both too republican, and not republican enough” to help. For instance, in 1796 second degree murder was inserted between first degree and manslaughter, giving a possible compromise unavailable to his first (and fatal) jury.