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  • Revolutionary Virginia’s Law and Lawyers

    Posted by Ginny on February 11th, 2021 (All posts by )

    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.


    3 Responses to “Revolutionary Virginia’s Law and Lawyers”

    1. Mike K Says:

      Interesting. I used to have a book on Lincoln’s law practice that was fascinating. I don’t know what happened to it. Probably loaned it. This was around 1825 in Illinois. The lawyers and the circuit judge all traveled together, sometimes sleeping in the same bed. I might look for it again. One of the big cases Lincoln lost was won by Edward Stanton.

    2. Ginny Says:

      Mike, I’d edited out a remark about your books that trace the history of medicine – it seems to me anyone becoming a lawyer or a doctor would really take more pride and interest in their profession as a profession from the profession’s history – how some practices came to be conventions, how other generations played off the costs and rewards of their choices.
      There’s a kind of weird book about Lincoln’s law years that describes the way he learned to win – his first year or so was pretty dismal but then he became quite successful: he left the circuit, going back home and working Euclid’s geometry over and over until he felt the logic of those “proofs” in is bones; they apparently lead him to success. The book was written by two boyhood friends, neither of whom became a politician or historian but one was a mathematician and the other a lawyer. It was quirky but I thought really interesting. I got a Euclid but never really opened it; last Christmas my grandsons had some interest in it and I hope they will/are putting it to use.

    3. Mike K Says:

      Ginny, I decided to write that book when teaching medical students who knew nothing of the history of the profession. When I was a student, back when dinosaurs roamed the earth, we had a pathology professor from Childrens Hospital of LA who would come in and give a lecture about each new organ system as we began to study it. Along with microscopes and dissection of an entire human body, that has disappeared from the medical curriculum.

      I had students read the first manuscript to tell me what they wanted. I made some alterations based on their interests.

      The second book is mostly a compilation of stories I told students as we saw patients. I have been out of teaching for nearly 7 years and fear what has taken place since I was gone.

      Incidentally, I had an application for law school in my desk when I applied to medical school. Two of my kids are lawyers but I fear they are both leftists and far from me politically.

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