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The Legislature at War: Bandits, Runaways and the Emergence of a Virginia Doctrine of Separation of Powers

  • Matthew Steilen

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1. Jefferson to Louis Girardin, March 12, 1815, in The Papers of Thomas Jefferson, Retirement Series, vol. 8, 1 October 1814 to 31 August 1815, ed. J. Jefferson Looney (Princeton, NJ: Princeton University Press, 2011), 334–38 (“daring & ferocious,” “committing murders”); Journal of the House of Delegates of the Commonwealth of Virginia; Begun […] on Monday, the Fourth Day of May, in the Year of our Lord One Thousand Seven Hundred and Seventy-Eight (Richmond, 1827), 39 (“terror”).

2. Norfolk County Order Book, August 3, 1778 and August 5, 1778, microfilm, County Court Order Books, Library of Virginia (“in a conspicuous place”); Virginia Gazette (Dixon and Nicholson), March 26, 1779, 2 (Phillpot's conviction); Virginia Antiquary, vol. 1, Princess Anne County Loose Papers, 1700–1789, ed. John Harvie Creecy (Richmond, VA: Dietz Press, 1954), 119 (Phillpot's death); Journal of the House of Delegates [May 1778], 39, 55 (Will's bounty); An act to attaint Philips, Josiah, in The Statutes at Large; Being a Collection of All the Laws of Virginia […], vol. 9 ed. Hening, William Waller, (Richmond, 1821), 463–64; and Lee, Wayne E., Crowds and Soldiers in Revolutionary North Carolina: The Culture of Violence in Riot and War (Gainesville, FL: University of Florida Press, 2001), 138.

3. Hoock, Holger, Scars of Independence: America's Violent Birth (New York: Crown, 2017), 1720, 92–101, 250–68; and Witt, John Fabian, Lincoln's Code, The Laws of War in American History (New York: Free Press, 2012), ch. 1.

4. Hulsebosch, Daniel J., “The Revolutionary Portfolio,” Suffolk University Law Review 47 (2014): 764–70.

5. Gould, Eliga H., Among the Powers of the Earth: The American Revolution and the Making of a New World Empire (Cambridge, MA: Harvard University Press, 2012), 5.

6. Taylor, Alan, American Revolutions: A Continental History, 1750–1804 (New York: Norton, 2016), ch. 10.

7. Chopra, Ruma, Unnatural Rebellion: Loyalists in New York City during the Revolution (Charlottesville, VA: University of Virginia Press, 2011), 160.

8. Ward, Harry M., Between the Lines: Banditti of the American Revolution (Westport, CT: Praeger, 2002), ixxi.

9. Loyalist militias were not unknown in Virginia. Jacob Ellegood, “a prominent man of an old, aristocratic Princess Anne family,” earned a captain's commission from Dunmore “with authority to enlist one-hundred men.” George, John Alonza, “Virginia Loyalists, 1775–1783,” Richmond College Historical Papers 1 (1916): 193. Ellegood was captured, paroled, and later sent over to the British in a prisoner exchange. Eckenrode, H. J., The Revolution in Virginia (Boston: Houghton Mifflin, 1916), 130, 143. For an account of how patriots handled loyalist militias and commanders in South Carolina, where the gentry was politically divided, see Brannon, Rebecca, From Revolution to Reunion: The Reintegration of the South Carolina Loyalists (Columbia, SC: University of South Carolina Press, 2016), 52, 55, 59, 83.

10. “Committee” could be made to overlap with “banditti,” at least for polemical purposes: “[I]t is the prevailing rage of the present times for people of all ranks, orders, and professions, to form Associations, and erect themselves into what they call Congresses and Committees of various denominations … [and] in obedience to the orders of such Congresses and Committees, much private property has been destroyed, the most daring piracies and robberies have been perpetrated in the face of open day, and death and destruction denounced against all who dare oppose their lawless banditti… .” “For Mr. Rivington's New-York Gazetteer,” April 6, 1775, in American Archives, Fourth Series […], vol. 2, ed. Peter Force (Washington, DC: 1837), 284–85.

11. Jefferson to Arthur Campbell, August 9, 1780, in The Papers of Thomas Jefferson, vol. 3, 18 June 1779 to 30 September 1780, ed. Julian P. Boyd (Princeton, NJ: Princeton University Press, 1951), 534–35; Holton, Woody, Forced Founders: Indians, Debtors, Slaves and the Making of the American Revolution in Virginia (Chapel Hill: University of North Carolina Press, 1999), ch. 6; and McDonnell, Michael A., The Politics of War: Race, Class, and Conflict in Revolutionary Virginia (Chapel Hill: University of North Carolina Press, 2010), ch. 4.

12. Schwarz, Philip J., Twice Condemned: Slaves and the Criminal Laws of Virginia, 1705–1865 (Baton Rouge: Louisiana State University Press, 1988), ch. 6; Taylor, Alan, The Internal Enemy: Slavery and War in Virginia, 1772–1832 (New York: Norton, 2013), ch. 1–3; and Taylor, American Revolutions, 247 (“black bandits”).

13. Ward, Between the Lines, ch. 10; Hast, Adele, Loyalism in Revolutionary Virginia: The Norfolk Area and the Eastern Shore (Ann Arbor, MI: UMI Research Press, 1979), 7485; and Eckenrode, Revolution in Virginia, 191–92.

14. Halliday, Paul, “Law's Histories: Pluralisms, Pluralities, Diversity,” in Legal Pluralism and Empires, 1500–1850, ed. Benton, Lauren and Ross, Richard (New York: New York University Press, 2013), 268–73.

15. On the use of race in the patriot press during the Revolution, see Parkinson, Robert G., The Common Cause: Creating Race and Nation in the American Revolution (Chapel Hill: University of North Carolina Press, 2016), ch. 3. On the ways in which racial perceptions worked to divide white and black Virginians, see Schwarz, Philip J., Slave Laws in Virginia (Athens, GA: University of Georgia Press), 3031.

16. Wood, Gordon S., Creation of the American Republic, 1776–1787 (Chapel Hill: University of North Carolina Press, 1998), 143.

17. Roeber, A. G., Faithful Magistrates and Republican Lawyers: Creators of Virginia Legal Culture, 1680–1810 (Chapel Hill: University of North Carolina Press, 1981); Miller, F. Thornton, Juries and Judges Versus the Law: Virginia's Provincial Legal Perspective, 1783–1828 (Charlottesville, VA: University of Virginia Press, 1994), ch. 1; Nelson, William E., The Common Law in Colonial America, vol. 3, The Chesapeake and New England, 1660–1750 (New York: Oxford University Press, 2016), 4652.

18. Tucker, St. George, Blackstone's Commentaries: With Notes of Reference […], vol. 1 (Philadelphia: 1803), 292–93.

19. On the republican legislature and the household of the Virginia patriarch, see Crow, Matthew, Thomas Jefferson, Legal History, and the Art of Recollection (Cambridge: Cambridge University Press, 2017), 8889, 105; and Onuf, Peter S., “Making Sense of Jefferson,” in The Mind of Thomas Jefferson (Charlottesville, VA: University of Virginia Press, 2007), 33.

20. Cover, Robert, “Foreword: Nomos and Narrative,” Harvard Law Review 97 (1983): 4044.

21. Vile, M. J. C., Constitutionalism and the Separation of Powers (Oxford: Clarendon Press, 1965), 119; and Adams, Willi Paul, The First American Constitutions: Republican Ideology and the Making of the State Constitutions in the Revolutionary Era (Lanham, MD: Rowman & Littlefield, 2001), 265. The relevant provisions of the 1776 Virginia Constitution are section V of the Declaration of Rights, which states that “the legislative and executive powers of the state should be separate and distinct from the judicative,” and the Form of Government, which requires that “[t]he legislative, executive, and judiciary department, shall be separate and distinct, so that neither exercise the powers properly belonging to the other.”

22. Jefferson, Thomas, Notes on the State of Virginia, ed. Peden, William (Chapel Hill: University of North Carolina Press, 1982), 120.

23. Dodd, Gwilym, Justice and Grace: Private Petitioning and the English Parliament in the Late Middle Ages (Oxford: Oxford University Press, 2007), 2728; and Sayles, G. O., The King's Parliament of England (New York: Norton, 1974), 77.

24. Sayles, G. O., ed., Select Cases in the Court of King's Bench under Edward II, vol. IV, Selden Society volume 74 (London: Selden Society, 1955), lxviiilxix; and Harding, Alan, “Plaints and Bills in the History of English Law, mainly in the period 1250–1350,” in Legal History Studies 1972, ed. Jenkins, Dafydd (Cardiff: University of Wales Press, 1972), 80. Here Harding is describing bills before the king's justices in eyre, but he argues that bills played the same role in Parliament.

25. Given-Wilson, Chris, ed., The Parliament Rolls of Medieval England, 1275–1594, vol. 7, Richard II: 1385–1397 (London: Boydell, 2005), 100101.

26. Collins, John, Martial Law and English Laws, c.1500–c.1700 (Cambridge: Cambridge University Press, 2016), 18; Pennington, Kenneth, “The Jurisprudence of Procedure,” in The History of Courts and Procedure in Medieval Canon Law, ed. Pennington, Kenneth and Hartmann, Wilfrid (Washington, DC: Catholic University Press, 2016); Collins, John M., “Hidden in Plain Sight: Martial Law and the Making of the High Courts of Justice, 1642–1660,” Journal of British Studies 53 (2014): 870; and Plucknett, T. F. T., “The Origin of Impeachment,” Transactions of the Royal Historical Society, Fourth Series 24 (1942): 5761.

27. Chrimes, S. B., English Constitutional Ideas in the Fifteenth Century (Cambridge: Cambridge University Press, 1936), 7085.

28. Steilen, Matthew, “Bills of Attainder,” Houston Law Review 53 (2016): 788.

29. Collins, Martial Law and English Laws (military courts), 29–52; Langbein, John H., Lerner, Renee Lettow, and Smith, Bruce P., History of the Common Law (New York: Aspen Publishers, 2009), 230–36 (justices of the peace), 563–75 (Star Chamber); and Baldwin, James Fosdick, The King's Council in England During the Middle Ages (Oxford: Clarendon Press, 1913), ch. 11–12.

30. Thomas Smith, De Republica Anglorum (1583), Book II, ch. 1 and 6.

31. Cromartie, Alan, The Constitutionalist Revolution: An Essay on the History of England, 1450–1642 (Cambridge: Cambridge University Press, 2006), 191.

32. Coke, Edward, The Fourth Part of the Institutes (London, 1644), 37 (attainder); Gough, J. W., Fundamental Law in English Constitutional History (Oxford: Clarendon Press, 1955), 43 (attainder); White, Stephen D., Sir Edward Coke and “The Grievances of the Commonwealth” (Chapel Hill: University of North Carolina Press, 1979) (committee investigations); and Tite, Colin G. C., Impeachment and Parliamentary Judicature in Early Stuart England (London: Athlone Press, 1974) (impeachment).

33. For example, the speech of Lord Digby in 1641 during the Strafford attainder: “[T]here is in Parliament a double Power of Life and Death by Bill, a Judicial Power, and a Legislative.” Rushworth, John, The Tryal of Thomas, Earl of Strafford (London: 1680), 53. Members also debated the use of bills to adjudicate the scope of the sovereign's prerogative. Cromartie, Constitutionalist Revolution, 191–94.

34. Chafetz, Josh, Democracy's Privileged Few: Legislative Privilege and Democratic Norms in British and American Constitutions (New Haven, CT: Yale University Press, 2007), 3237; and Halliday, Paul D., Habeas Corpus: From England to Empire (Cambridge, MA: Harvard University Press, 2010), 215–19.

35. Coke, Fourth Part of the Institutes, 37; and Steilen, “Bills of Attainder,” 820–22.

36. Hulsebosch, Daniel, “Constitution-Making in the Shadow of Empire,” American Journal of Legal History 56 (2016): 8586.

37. Steilen, “Bills of Attainder,” 796–825.

38. Other non-capital punitive bill proceedings included exile and contempt of parliamentary process. William Richard Stacy, “The Bill of Attainder in English History” (PhD diss., University of Wisconsin–Madison, 1986), ch. 12–13.

39. Stacy, “Bill of Attainder in English History,” 588, 590. Archibald Cameron, who was condemned in the 1746 act of attainder, was caught and executed in 1753. Fenwick, however, was likely the last person condemned by an act of attainder in lieu of a common law trial. Ibid., 589.

40. Halliday, Habeas Corpus, 137–46; and Jaffe, Louis L. and Henderson, Edith G., “Judicial Review and the Rule of Law: Historical Origins,” Law Quarterly Review 72 (1956): 355–64.

41. Halliday, Paul D. and White, G. Edward, “The Suspension Clause: English Text, Imperial Contexts, and American Implications,” Virginia Law Review 94 (2008): 616–28.

42. Clarke, Mary Patterson, Parliamentary Privilege in the American Colonies (New Haven, CT: Yale University Press, 1943), 54.

43. Billings, Warren M., A Little Parliament: The Virginia General Assembly in the Seventeenth Century (Richmond: Library of Virginia, 2004), 149, 171; and Gerber, Scott Douglas, A Distinct Judicial Power: The Origins of an Independent Judiciary, 1606–1787 (Oxford: Oxford University Press, 2011), 50.

44. Tarter, Brent, “The Library of the Council of Colonial Virginia,” in “Esteemed Bookes of Lawe” and the Legal Culture of Early Virginia, ed. Billings, Warren M. and Tarter, Brent (Charlottesville, VA: University of Virginia Press, 2017), 41.

45. Billings, A Little Parliament, 165–66; and Nelson, William E., The Common Law in Colonial America, vol. 1, The Chesapeake and New England, 1607–1660 (New York: Oxford University Press, 2008), 37. Liberal pleading should not be taken to imply arbitrary decision making; as Nelson himself observes, the General Court was outspoken in its embrace of “rule of law,” partly in an effort to attract settlers to the colony. Nelson, Common Law, 1:26–28.

46. Hening, William Waller, ed., The Statutes at Large; Being a Collection of All the Laws of Virginia […], vol. 2 (New York, 1823), 555 (emphasis mine).

47. Ibid., 2:375.

48. Olson, Alison G., “Eighteenth Century Colonial Legislatures and their Constituents,” Journal of American History 79 (1992): 566; Henretta, James A., “Magistrates, Common Law Lawyers, Legislators: The Three Legal Systems of British North America,” in Cambridge History of Law in America, vol. 1, ed. Grossberg, Michael and Tomlins, Christopher (Cambridge: Cambridge University Press, 2008), 569–76; and Greene, Jack P., The Quest for Power: The Lower Houses of Assembly in the Southern Royal Colonies, 1689–1776 (Chapel Hill, NC: University of North Carolina Press, 1963), 332–33.

49. Labaree, Leonard Woods, ed. Royal Instructions to the British Governors, 1660–1776, vol. 1 (New York: American Historical Association, 1935), 320–21; and Roeber, Faithful Magistrates, 44, 51.

50. Reid, John Phillip, Legislating the Courts (Dekalb, IL: Northern Illinois University Press, 2009): 711; and Hamburger, Phillip, Law and Judicial Duty (Cambridge, MA: Harvard University Press, 2008), 525–32.

51. Greene, The Quest for Power, 51; Greene, Evarts Boutell, The Provincial Governor in the English Colonies of North America (New York: Russell and Russell, 1966), 5960, 180–88; Morgan, Edmund S., Inventing the People: The Rise of Popular Sovereignty in England and America (New York: Norton, 1988), 140; and Griffith, Lucille, The Virginia House of Burgesses, 1750–1774 (Birmingham, AL: University of Alabama Press, 1970), 17.

52. Desan, Christine A., “The Constitutional Commitment to Legislative Adjudication in the Early American Tradition,” Harvard Law Review 111 (1998): 1391–427. A recent treatment of the power of the purse describes how targeted appropriations, auditing, removal, sunset clauses, and appointment of treasurers gave colonial legislatures significant control over the conduct of government. Chafetz, Josh, Congress's Constitution: Legislative Authority and the Separation of Powers (New Haven, CT: Yale University Press, 2017), 4577, 92–93.

53. Nelson, Common Law, 3:33–37, 47–52; Roeber, Faithful Magistrates, 34–41, 71–72, 123, table 4; and Morgan, Gwenda, The Hegemony of the Law: Richmond County, Virginia, 1692–1776 (New York: Garland Publishing, 1989), ch. 2.

54. Isaac, Rhys, The Transformation of Virginia: 1740–1790 (Chapel Hill: University of North Carolina Press, 1982), 9293, 133; Warren M. Billings, “English Legal Literature as a Source of Law and Practice in Seventeenth Century Virginia,” in Billings and Tarter, “Esteemed Bookes of Lawe”, 19–21; Wright, Louis B., The First Gentlemen of Virginia (San Marino, CA: The Huntington Library, 1940), 123–33; Roeber, Faithful Magistrates, 56–59; Webb, George, The Office and Authority of a Justice of the Peace (Williamsburg: 1736), ix; and Miller, Juries and Judges, 6.

55. Roeber, Faithful Magistrates, 44 (“ease of moving”); Nelson, Common Law, 3:43–45, 49–50; Barton, R. T., “Introduction,” in Randolph, John and Barradall, Edward, Virginia Colonial Decisions, vol. 1, ed. T., R. Barton (Boston: Boston Book, 1909), 198–99. A study of the Norfolk County Court and the Norfolk Borough Hustings Court states that the courts “seemed to follow rules strictly, though perhaps not always to the detriment of litigants. They seemed comfortable with familiar rules and forms.” E. Lee Shepard, “The Administration of Justice in Revolutionary Virginia: The Norfolk Courts, 1770–1790” (master's thesis, University of Virginia, 1974), 17.

56. Steilen, “Bills of Attainder,” 772–73, 826–31.

57. Hulsebosch, Daniel J., Constituting Empire: New York and the Transformation of Constitutionalism in the Atlantic World, 1664–1830 (Chapel Hill: University of North Carolina Press, 2005), 42104; Ford, Lisa, Settler Sovereignty, Jurisdiction and Indigenous People in America and Australia, 1788–1836 (Cambridge, MA: Harvard University Press, 2010), 324; Gould, Among the Powers of the Earth, ch. 1; and Konig, David Thomas, “Virginia and the Imperial State: Law, Enlightenment, and ‘The Crooked Cord of Discretion,’” in The British and their Laws in the Eighteenth Century, ed. Lemmings, David (Suffolk: Woodbridge, 2005), 220. For an extension of these issues to the 1780s and the framing of the federal Constitution, see Ablavsky, Gregory, “The Savage Constitution,” Duke Law Journal 63 (2014): 1009–18.

58. George Gilmer, Commonplace Book, August 1, 1775, p. 65, Mss 5: 5 G4231:1, Virginia Historical Society; and Scribner, Robert L., ed., Revolutionary Virginia, The Road to Independence, vol. 3, The Breaking Storm and the Third Convention, 1775 (Charlottesville, VA: University of Virginia Press, 1977), 385, 388 n.23.

59. Gilmer “was a leader of the activists” among the volunteer companies’ officers, and it was he who proposed that the companies seize public moneys in the name of the convention. Canby, Courtlandt, “The Commonplace Book of Doctor George Gilmer,” Virginia Magazine of History and Biography 56 (1948): 383. By August 1, that plan had already come to naught, as the convention resolved that the “proceedings of the Volunteer Companies … cannot be approved, and that they be requested to desist from carrying their resolution into action. [signed] A Copy John Tazewell Clerk of the Convention.” Gilmer, Commonplace Book, 62.

60. Scribner, Revolutionary Virginia, 3:393.

61. An ordinance for raising and embodying a sufficient force, for the defense and protection of this colony, in Hening, Statutes at Large, 9:9–34; and Holton, Forced Founders, 168. The pay differential between officers and enlisted men was greater in the Southern colonies than in the North, whose armies at first aimed to embody Whig principles of equality. When George Washington assumed control of the New England Army (which became the Continental Army), eliminating pay equality was one of his chief goals. Marston, Jerrilyn Greene, King and Congress: The Transfer of Political Legitimacy, 1774–1776 (Princeton, NJ: Princeton University Press, 1987), 150, 158–64.

62. The Proceedings of the Convention of Delegates […] March, 1775 (Richmond: 1816), 6–7. The matter was felt urgent after Governor Dunmore emptied the Williamsburg magazine of powder in late April. See, for example, the Resolution of the Gloucester County Committee, April 25, 1775, in Force, American Archives Fourth Series, 2:387–88.

63. Virginia Gazette (Purdie), November 3, 1775 (“every half-bitt they had”); Neil Jamieson to Messrs. Glassford, Gordon, Monteath, and Co., November 17, 1775, in Revolutionary Virginia: The Road to Independence, vol. 4, The Committee of Safety and the Balance of Forces, ed. Robert L. Scribner and Brent Tarter (Charlottesville, VA: University of Virginia Press, 1978), 423.

64. John Richards to Edmund Pendleton, December 14, 1775, in “Virginia Legislative Papers (Continued),” Virginia Magazine of History and Biography 14 (1907): 391 (emphasis mine); McDonnell, Politics of War, 127. The culprit, Jonathan Dew or Daw, had been recruiting men to fight for the king by promising them “four new shirts & a good set of clothes & paid for their washing,” in addition to pay and quarter. Deposition of Charles E. Woods, Virginia Magazine of History and Biography 14 (1907): 392.

65. Lingley, Charles Ramsdell, The Transition in Virginia from Colony to Commonwealth (New York: Columbia University, 1910), 119; Shepard, “The Administration of Justice,” 46–47; Hast, Loyalism in Revolutionary Virginia, 96–99; George, “Virginia Loyalists,” 173, 184–89; and Eckenrode, Revolution in Virginia, 100.

66. Holton, Forced Founders, 176; Shepard, “The Administration of Justice,” 87. According to Shepard, 55% of people in Princess Anne were landless. More broadly, throughout the Southside, “people … tended to be landless.”

67. Hume, Ivor Noel, 1775: Another Part of the Field (New York: Knopf, 1966), 281, 370–71; and Holton, Forced Founders, 173–74.

68. Northampton Committee of Safety to the Continental Congress, November 25, 1775, “Virginia Legislative Papers (Continued),” Virginia Magazine of History and Biography 14 (1907): 254.

69. Virginia Antiquary, 1:103–4. For this, Axtead was brought before two Princess Anne justices of the peace and then released on bond for good behavior.

70. Mason to George Mercer, October 2, 1778, in The Life of George Mason, 1725–1792, vol. 1, ed. Kate Mason Rowland (New York: 1892), 299; Dunmore to Earl of Dartmouth, in The Writings of George Washington from the Original Manuscript Sources, 1745–1799, vol. 3, January, 1770–September, 1775, ed. John C. Fitzpatrick (Washington, DC: Government Printing Office, 1931), 249 n.94.

71. Hume, Another Part of the Field, 341–42.

72. I have not found evidence of an officer's commission in state papers; the list of men commissioned by Dunmore in 1775 and 1776 to be part of the Queen's Loyal Regiment does not include Philips. Public Record Office Class T1/580/113–114, microfilm, Virginia Colonial Records Project, Library of Virginia. Neither is there evidence of any payments to Philips in Dunmore's accounts that I have examined. PRO Class T1/580/128–129, Virginia Colonial Records Project. This does not rule out Philips's service, as there were a number of British agents circulating in Virginia recruiting men and expressing disaffection with patriot leadership. Randolph asserts that Philips had a commission to recruit. Randolph, Edmund, History of Virginia, ed. Schaffer, Arthur F. (Charlottesville, VA: University of Virginia Press, 1970), 269.

73. Eckenrode, Revolution in Virginia, 192–93 (“ferocity,” Bob); and Virginia Antiquary, 1:96–97 (Will and others).

74. Virginia Gazette (Dixon and Hunter), November 25, 1775, 3. As Sylvia Frey put it, the British desired “to inspire enough black resistance to satisfy British military needs without inciting rebellion…. Instead of calling slaves to arms, the British army summoned them to serve.” Frey, Sylvia, “Between Slavery and Freedom: Virginia Blacks in the American Revolution,” Journal of Southern History 49 (1983): 389.

75. McDonnell, Politics of War, 140 n. 8; and Holton, Woody, Black Americans in the Revolutionary Era: A Brief History with Documents (Boston: Bedford/St. Martin's, 2009), 89.

76. McConville, Brendan, The King's Three Faces: The Rise and Fall of Royal America, 1688–1776 (Chapel Hill: University of North Carolina Press, 2006), 170–81; and Holton, Black Americans, 8.

77. Petition of William Evans to the Speaker and Members of Both Houses of the General Assembly, October 27, 1790, Legislative Petitions of the General Assembly, 1776–1865, Accession Number 36121, Box 89, Folder 17, Library of Virginia; and Petition of Edmund Ruffin to the Speaker and Gentlemen of the House of Delegates, November 10, 1777, Legislative Petitions of the General Assembly, 1776–1865, Accession Number 36121, Box 23, Folder 5, Library of Virginia.

78. Petition of Robert Wilson to the Speaker and Members of the General Assembly, October 22, 1791, Legislative Petitions of the General Assembly, 1776–1865, Accession Number 36121, Box 150, Folder 24, Library of Virginia; and Petition of Arthur Dickenson to the Speaker and Gentlemen of the House of Delegates, May 27, 1778, Legislative Petitions of the General Assembly, 1776–1865, Accession Number 36121, Box 260, Folder 12, Library of Virginia.

79. Troubetzkoy, Ulrich, “The Great Dismal Swamp,” Virginia Calvacade 10 (1961): 19.

80. Ward, Between the Lines, 171.

81. Holton, Forced Founders, 138 (“permanent undercurrent of fear”); Hume, Another Part of the Field, 283–84; and Taylor, Internal Enemy, 21–22 (Somerset).

82. Randolph, History of Virginia, 219. In a statement to the House of Burgesses, John Randolph conceded that although he never “heard the Governor expressly say, that he would proclaim freedom to the Slaves, but he was so well satisfied that such was his Lordships Intentions,” if he thought it necessary “in defence of his Person.” Deposition of John Randolph in Regard to the Removal of the Powder, in “Virginia Legislative Papers (Continued),” Virginia Magazine of History and Biography 15 (1907): 149. On the connection between the gunpowder seizure and the fear of a slave uprising, see Hume, Another Part of the Field, 141–42.

83. Deposition of Dr. William Pasteur, in “Virginia Legislative Papers,” Virginia Magazine of History and Biography 13 (1905): 49.

84. Holton, Black Americans, 7. For a sample of the unending stream of “fake news” in the Virginia press during this period, see Parkinson, The Common Cause, 213–39; and Hume, Another Part of the Field, 282–302, 335–42.

85. McDonnell, Politics of War, 143.

86. “My Mother,” in Lower Norfolk County Antiquary, vol. 2, ed. Edward W. James (Baltimore: 1897), 134–35.

87. On the character of the Virginia gentleman, see Berland, Kevin, Gilliam, Jan Kirsten, and Lockridge, Kenneth A., eds., The Commonplace Book of William Byrd II of Westover (Chapel Hill: University of North Carolina Press, 2001), 82; and Isaac, Transformation of Virginia, 39, 131–33. On gentry views of white servants, sailors, convicts, “vagrants,” and other groups of “deviant” whites, see Morgan, Hegemony of the Law, 140–48. According to Schwarz, “It always made a difference to communities whether [a] killer was of a lower status than the killed.” Schwarz, Twice Condemned, 141.

88. Jefferson's famous account of black Virginians in Query XIV of Notes on the State of Virginia, suffused with a kind of scientific racism, described them as exhibiting a “lack of forethought” and black men as being “more ardent after their female,” their “love [being equivalent to] an eager desire.” Jefferson, Notes on the State of Virginia, 139. For a recent, highly compelling construction of Jefferson's view of black and poor “corporality,” see Valsania, Maurizio, Jefferson's Body: A Corporeal Biography (Charlottesville, VA: University of Virginia Press, 2017), 2223, 109–12, 146–63. The sexualization of black violence was widespread. Consider the Petition of the Citizens of Halifax County opposing emancipation, which warned of “all the Rapes, Murders, and Outrages, which a vast multitude of unprincipled, unpropertied, vindictive, and remorseless Banditti are capable of perpetrating.” Petition to the Virginia General Assembly, November 10, 1785, in Holton, Black Americans, 90–91. Even the abolitionist Benjamin Franklin could speak this way, describing “the wanton and unbridled Rage, Rapine and Lust, of Negroes, Mulattoes, and others, the vilest and most abandoned of Mankind.” “Plain Truth,” quoted in Gould, Among the Powers, 33.

89. Parkinson, Common Cause, 186–87, 227–29, 256–59; Lee, Crowds and Soldiers, 140–44; and Holton, Black Americans, 6–7. Holton observes that, although patriots accused Britain of fomenting slave rebellion, “[a] careful review of the chronology of the relationship … shows that it was often the slaves who incited the British.”

90. Cary to Richard Henry Lee (December 24, 1775), quoted in Holton, Black Americans, 10. As historian William Nelson describes this attitude, “the potential for black resistance arguably threatened poor whites as well as wealthy ones and thereby gave upper-class whites an argument for uniting the white underclass with them in their practices of repressing blacks.” Nelson, Common Law, 3:32.

91. McDonnell, Politics of War, 135–74; and Eckenrode, Revolution in Virginia, 86–88.

92. Shepard, “The Administration of Justice,” 85.

93. This obligation lay near the center of the gentry worldview. Isaac, Transformation in Virginia, 131–32. For a period expression, see the letter from William Byrd II to Charles, Earl of Orrey, July 5, 1726, in “Virginia Council Journals,” Virginia Magazine of History and Biography 32 (1924): 27. Jefferson, too, imagining himself as the “most blessed of the patriarchs” in a letter to a friend, placed himself at Monticello, surrounded by family (and books). It was an image he would invoke repeatedly. Isaac, Rhys, “The First Monticello,” in Jeffersonian Legacies, ed. Onuf, Peter S. (Charlottesville, VA: University of Virginia Press, 1993), 9091; and Gordon-Reed, Annette and Onuf, Peter S., Most Blessed of the Patriarchs: Thomas Jefferson and the Empire of the Imagination (New York: Liveright Publishing, 2016), 2840.

94. Petition of the Inhabitants of Norfolk and Princess Anne Counties, undated, in Revolutionary Virginia, The Road to Independence, vol. 5, The Class of Arms and the Fourth Convention, 1775–1776, ed. Robert L. Scribner and Brent Tarter (Charlottesville, VA: University of Virginia Press, 1979), 362–63. For a vivid account of a “midnight intrusion” into a bed chamber “with drawn daggers and bayonets,” related by a family member of one of the Norfolk petitioners, see “My Mother,” 136–37.

95. Charles Lee to John Page, April 8, 1776, in Revolutionary Virginia, The Road to Independence, vol. 6, The Time for Decision, 1776, ed. Robert L. Scribner (Charlottesville, VA: University of Virginia Press, 1981), 352.

96. Berkin, Carol, Revolutionary Mothers: Women in the Struggle for American Independence (New York: Knopf, 2005), 3842.

97. Scriber and Tarter, Revolutionary Virginia, 5:402 n. 3; and Unanimous Resolution for the Evacuation of Parts of Norfolk and Princess Anne Counties, April 10, 1776, in Scribner, Revolutionary Virginia, 6:369–70.

98. Petition of the Committee of Safety of Princess Anne County, 1776, in “Virginia Legislative Papers (Continued),” Virginia Magazine of History and Biography 17 (1909): 173. The Princess Anne Committee asserted that only “fifteen or Twenty” of their slaves had joined Dunmore, and that, in general, “[w]e have but few” slaves. For the modified order, see Virginia Committee of Safety, Proceedings of the Committee, May 3, 1776, in Scribner, Revolutionary Virginia, 6:514.

99. Eckenrode, Revolution in Virginia, 91. A blanket removal was again ordered in October 1777. For the context of this order, which was made by Governor Patrick Henry and the Privy Council, see George, “Virginia Loyalists,” 205; and Robert Leroy Hilldrup, “The Virginia Constitution of 1776: A Study in Revolutionary Politics” (PhD diss., University of Virginia, 1935), 119. The General Assembly indemnified the governor and the council for the removal: An Act for indemnifying the Governor and Council, and others, for removing and confining Suspected Persons during the late public danger. Hening, Statutes at Large, 9:373–74. Jefferson apparently drafted the statute, which appears in his papers. Bill Indemnifying the Executive for Removing and Confining Suspected Persons, in The Papers of Thomas Jefferson, vol. 2, 2 January 1777 to 18 June 1779, ed. Julian P. Boyd (Princeton, NJ: Princeton University Press, 1950), 119.

100. Other county courts were also affected by the outbreak of hostilities. The first Provincial Convention had permitted the court “fee bill” to expire, effectively closing the courts to suits for recovery of a debt, but justices in most counties remained active throughout the war collecting taxes, settling estates, convening grand juries, and generally preserving what one contemporary called “Peace and good Order.” Lingley, Transition in Virginia, 70, 114 (fee bill); Shepard, “The Administration of Justice,” 48–51; Alan McKinley Smith, “Virginia Lawyers, 1680–1776: The Birth of a Profession” (PhD diss., Johns Hopkins University, 1967), 39–40; Cullen, Charles T., St. George Tucker and Law in Virginia, 1772–1804 (New York: Garland Publishing, 1987), 31; and Scribner, Robert L., ed., Revolutionary Virginia, The Road to Independence, vol. 1, Forming Thunderclouds and the First Convention, 1763–1774 (Charlottesville, VA: University of Virginia Press), 280 (“Peace and good Order”). In July 1776, after enacting the state's new constitution, the Provincial Convention authorized county courts to resume sitting. Hening, Statutes at Large, 9:126. Norfolk courts would not sit regularly for at least another year.

101. Shepard, “The Administration of Justice,” 52–53; Hast, Loyalism in Revolutionary Virginia, 92, 99; and An act to empower the justices of the county of Norfolk to hold Court at such place as they shall appoint, in Hening, Statutes at Large, 9:231.

102. Beeman, Richard R., “The Political Response to Social Conflict in the Southern Backcountry: A Comparative View of Virginia and the Carolinas during the Revolution,” in An Uncivil War: The Southern Backcountry During the American Revolution, ed. Hoffman, Ronald, Tate, Thad W., and Albert, Peter J. (Charlottesville, VA: University of Virginia Press, 1985), 228, 233; and Ward, Between the Lines, 154 (“freely raided”).

103. McIlwaine, H. R., ed., Journals of the Council of the State of Virginia, vol. 1, July 12, 1776–October 2, 1777 (Richmond: Virginia State Library, 1931), 435–36; and McIlwaine, H. R., ed., Journals of the Council of the State of Virginia, vol. 2, October 6, 1777–November 30, 1781 (Richmond: Virginia State Library, 1932), 58. The Journal states that Philips had been “outlawed by the Governor … as a Traitor to the State,” rather than simply bountied, but this is probably incorrect. Outlawry was a procedure at common law and in a strict sense beyond the power of the governor to perform. Elsewhere, as will be discussed, Henry expressly acknowledged the limits of his powers as governor to address the Philips threat.

104. McIlwaine, H. R., ed., Official Letters of the Governors of the State of Virginia, vol. 1, The Letters of Patrick Henry (Richmond: Virginia State Library, 1926), 267–68; and McIlwaine, Journals of the Council, 2:127.

105. John Wilson to Patrick Henry, May 20, 1778, in Wirt, William, The Life of Patrick Henry (Philadelphia: 1836), 237–38.

106. Lee, Crowds and Soldiers, 157–58. Congress examined witnesses to a reprisal killing and offered a reward for the capture of those believed responsible for the attack. In addition, its proclamation authorized pursuers to “kill and destroy” the suspects if they resisted.

107. Henry to Benjamin Harrison, May 27, 1778, in McIlwaine, Official Letters of the Governors, 1:282–83. The council had recommended that Henry remove the “[f]amilies as are in League with the Insurgents,” and that for this purpose he should forward Wilson's letter to the assembly; in addition, the council recommended that Henry order a company of regulars to the area to cooperate with militia “in Crushing these Desperadoes.” McIlwaine, Journals of the Council, 2:140.

108. Report of the Committee on the State of the Commonwealth, May 28, 1778, in Journal of the House of Delegates [May 1778], 22–23. The clerk of the House who docketed the bill was Edmund Randolph. Journal of the House of Delegates [May 1778], 30; Kaminski, John P. and Saladino, Gaspare J., eds., The Documentary History of the Ratification of the Constitution, vol. 9, Virginia, No. 2 (Madison, WI: Wisconsin Historical Society Press, 1990), 1004 n. 5.

109. Jefferson to William Wirt, August 14, 1814, in The Papers of Thomas Jefferson, Retirement Series, vol. 7, 28 November 1813–30 September 1814, ed. J. Jefferson Looney (Princeton, NJ: Princeton University Press 2010), 548–49 (Henry shared Wilson's letter with Jefferson); Evans, Emory G., “Executive Leadership in Virginia, 1776–1781: Henry, Jefferson, and Nelson,” in Sovereign States in an Age of Uncertainty, ed. Hoffman, Ronald and Albert, Peter J. (Charlottesville: University of Virginia Press, 1981), 192–93, 204; Journal of the House of Delegates [May 1778], 22, 24, 28, 29, 35; Bill to Attaint Josiah Philips, May 28, 1778, in Papers of Thomas Jefferson, 2:189–91; and Hening, Statutes at Large, 9:463–64.

110. Jefferson to William Wirt, August 14, 1814, in Papers of Thomas Jefferson, Retirement Series, 7:549.

111. Jefferson to John Page, May 25, 1766, in The Papers of Thomas Jefferson, vol. 1, 1760–1776, ed. Julian P. Boyd (Princeton, NJ: Princeton University Press, 1950), 19–20; Jefferson to George Wythe, February 28, 1800, in Jefferson's Parliamentary Writings, ed. Wilbur Samuel Howell (Princeton: Princeton University Press, 1988), 3 (“commonplaced what I read”); Howell, Jefferson's Parliamentary Writings, 43 (date Pocket-Book was begun); and Parliamentary Pocket-Book, para. 41, in Howell, Jefferson's Parliamentary Writings, 58 (Cromwell).

112. Jefferson to Louis Girardin, March 12, 1815, in Papers of Thomas Jefferson, Retirement Series, 8:334.

113. Perkins, Buchanan, & Brown to Jefferson, October 2, 1769, in Papers of Thomas Jefferson, 1:34.

114. The Thomas Jefferson”s Libraries database identifies the book as belonging to the “Monticello Library,” assembled between 1770 and 1815; http://www.librarything.com/work/4069900/book/22053709 (last accessed February, 22, 2019). Sowerby writes that “[J]efferson acquired this volume though his wife's family; the autograph signature of John Wayles occurs in three places … .” E. Millicent Sowerby, Catalogue of the Library of Thomas Jefferson, vol. 3 (Washington, DC: Library of Congress, 1953), 180, entry 2887. On the attribution of Of the Judicature of Parliaments, see Foster, Elizabeth Read, “The Painful Labour of Mr. Elsyng,” Transactions of the American Philosophical Society 62 (1972): 5, 4245.

115. Jefferson to Robert Skipwith, August 3, 1771, in Papers of Thomas Jefferson, 1:80.

116. On the importance of Rushworth to Jefferson's thinking, see Colbourn, Trevor, The Lamp of Experience: Whig History and the Intellectual Origins of the American Revolution (Chapel Hill: University of North Carolina Press, 1965), 159–60.

117. Crow, Thomas Jefferson, Legal History, and the Art of Recollection, 73.

118. Ford, Paul Leicester, ed., The Writings of Thomas Jefferson, vol. 1, 1760–1775 (New York: Putnam, 1892), 10; and Brent Tarter, “The Library of the Council of Colonial Virginia,” in Billings and Tarter, “Esteemed Bookes of Lawe”, 45–53.

119. Colbourn, Lamp of Experience, 160.

120. Howell, Jefferson's Parliamentary Writings, 43; and Deschler, Lewis, Jefferson's Manual and the Rules of the House of Representatives (Washington, DC: United States Government Printing Office, 1961), 115 n. Jefferson wrote, “I could not doubt the necessity of quoting the sources of my information, among which Mr. Hatsel's most valuable book is preeminent.”

121. Hatsell, John, Precedents of Proceedings in the House of Commons, vol. 4 (London 1796), 8990; Papers of Thomas Jefferson, Retirement Series, 8:334.

122. Kevin J. Hayes, “The Law Library of a Working Attorney: The Example of Patrick Henry,” in Billings and Tarter, “Esteemed Bookes of Lawe”, 140. This view of Henry is to some degree a product of William Wirt's early biography, whose emphasis on Henry's lack of book learning served to magnify Henry's legend in the minds of Virginia's advocates of local power, the “Old Republicans.” Miller, Juries and Judges, 3–4.

123. Randolph, History of Virginia, 255 (“terrifying picture”); and Hilldrup, The Virginia Constitution, 183 (“martial law”).

124. Kaminsky and Saladino, Documentary History of the Ratification, 9:1038; and Hayes, “The Law Library,” 149–50.

125. Miller, Juries and Judges, 25. In contrast, professional lawyers made up 6% of the membership of the House between 1720 and 1776. Roeber, Faithful Magistrates, 145.

126. Quoted in Isaac, Transformation, 133–34 (“good reason and experience”); and Greene, Jack P., ed., Diary of Landon Carter, vol. 1 (Richmond: Virginia Historical Society, 1965), 93 (“knowing from whom to Copy”).

127. Quoted in Roeber, Faithful Magistrates, 78 (“superior order”); Peter S. Onuf, “Thomas Jefferson, Federalist,” in Mind of Thomas Jefferson, 90.

128. On the connection between family and state, see Peter S. Onuf, “Making Sense of Jefferson,” 33.

129. Jefferson to William Preston, March 21, 1780, in Papers of Thomas Jefferson, 3:534–35.

130. Papers of Thomas Jefferson, 1:342. Jefferson's first draft of a constitution for the state of Virginia famously provides that the prerogative powers of declaring war or peace, issuing letters of marque and reprisal, and erecting courts are to “be exercised by the legislature alone.”

131. Crow, Thomas Jefferson, Legal History, and the Art of Recollection, 88–89, 105. Notably, Jefferson's proposed revision of Virginia's colonial criminal laws, prepared close to the time of Philips's attainder, impliedly recognized a legislative power to attaint by bill, as it would prohibit only those attainders that worked a “corruption of blood”; that is, inherited civil disability. Bill for Proportioning Crimes and Punishments in Cases Heretofore Capital, in Papers of Thomas Jefferson, 2:506–7 n. 21.

132. Valsania, Jefferson's Body, 19–20, 27; and Roeber, Faithful Magistrates, 164.

133. As Emory Evans describes, both Henry and Jefferson were “sensitive to and respectful of” the primacy of the legislature in the state government, even during wartime, and they consistently sought out authority from the legislature in the form of delegation, indemnification, or pardon. Evans, “Executive Leadership in Virginia,” 191, 192, 202–3.

134. Virginia Gazette (Purdie), June 5, 1778, 2 (act of attainder); Virginia Gazette (Purdie), June 19, 1778, 2 (Parker and Hodges jailed); McIlwaine, Journals of the Council, 2:210 (Captain Amos Weeks); Princess Anne County Minute Book, May 16, 1778, microfilm, typescript, County Court Order Books, Library of Virginia (M'Clelen's arrest); Princess Anne County Minute Book, June 11, 1778 (arraignment of Philips, Hodges, Land, Moore, and Burgess); and Virginia Antiquary, 1:92–93 (Land).

135. Norfolk County Order Book, June 30, 1778 (Pinkerton); and Norfolk County Order Book, July 16, 1778 (Miller and Hodges).

136. During Jefferson's term as governor, Justices of the Peace Henry Lee and William Carr dissented from the judgment of the Prince William County Court condemning a slave Billy to death for high treason, on the grounds that he was not a citizen and therefore did not owe the state allegiance and could not commit treason. Palmer, William P., ed., Calendar of Virginia State Papers and Other Manuscripts […], vol. 2, April 1, 1781 to December 31, 1781 (Richmond, 1881), 9091. Billy's owner, Mann Page, appealed to Jefferson, who granted a reprieve on that ground. Mann then petitioned the House for a pardon, and a bill of pardon was ordered prepared; whether it passed out of the House, and whether it ever went to the Senate (or was required to), is unknown. Journal of the House of Delegates of the Commonwealth of Virginia; Begun […] Monday, the Seventh Day of May, in the Year of our Lord One Thousand Seven Hundred and Eighty-One (Richmond: 1828), 12 (entry for June 9, 1781); Eckenrode, Revolution in Virginia, 259. In this case, Sandy might have been charged with petit treason for the murder of his master, although the record contains no such language.

137. Norfolk County Order Book, August 3, 1778 and August 5, 1778.

138. Shepard, “The Norfolk Courts,” 80. As Shepard notes, there were a relatively large number of slaves tried before county courts of oyer and teriminer in 1778, suggesting the possibility of other escaped slaves in Philips's gang, although the records do not confirm this.

139. Virginia Antiquary, 1:96 (Phillpot and Will); Journal of the House of Delegates of the Commonwealth of Virginia; Begun […] Monday, the Fifth Day of October, in the Year of our Lord One Thousand Seven Hundred and Seventy-Eight (Richmond, 1827), 39, 55 (entries for November 2, 1778 and November 11, 1778); McIlwaine, Letters of the Governors, 1:308; and Virginia Gazette (Dixon and Nicholson), March 26, 1779, 2 (Phillpot, Pinkerton, Miller, and Thornton sentenced).

140. Virginia Antiquary, 1:119. The discovery of this remarkable fact should be credited to Adele Hast. Hast, Loyalism in Revolutionary Virginia, 98.

141. Slaves could not appeal a conviction for felony in a county court of oyer and terminer, and had to hope for a gubernatorial pardon. Shepard, “The Administration of Justice,” 21.

142. McIlwaine, Letters of the Governors, 1:300 (Philips's transfer to Williamsburg in July 1778); Virginia Gazette (Purdie), October 30, 1778, 3 (indictment); and “An endictment against Josiah Philips for robbery,” October 20, 1778, Verdict, October 27, 1778, Judgment, October 28, 1778, Report of Sentence, October 30, 1778, all in Wirt, Life of Patrick Henry, 465–68. The records of the General Court were burned in the Civil War, but William Wirt had copied them for inclusion in his biography of Henry. Wirt noted that the indictment was “endorsed … in Mr. Randolph's handwriting.” For a contemporaneous report of the sentence and execution, see Virginia Gazette (Dixon and Hunter), October 30, 1778; and Virginia Gazette (Dixon and Hunter), December 4, 1778, 2.

143. Thomas Newton Jr., to Thomas Nelson Jr., September 17, 1781, in Palmer, Calendar of Virginia State Papers, 2:450–51 (“neither civil nor military law”); George, “Virginia Loyalists,” 204; Shepard, “The Administration of Justice,” 79; and Thomas Newton to Benjamin Harrison, August 9, 1782, in William P. Palmer, ed., Calendar of Virginia State Papers and Other Manuscripts, vol. 3, January 1, 1782 to December 31, 1784 (Richmond, 1883), 252 (“the whole nest”).

144. Kaminsky and Saladino, Documentary History of the Ratification, 9:972.

145. The convention returned to the subject of Philips repeatedly. Patrick Henry took up the defense of Philips's attainder but did not contest the essentials of Randolph's account, other than to insist that Philips was “a fugitive murderer and an outlaw.” Kaminsky and Saladino, Documentary History of the Ratification, 9:1038. Like Randolph, Henry failed to mention the slaves in Philips's gang, although slavery and the fear of slave insurrection featured centrally in arguments that Henry advanced against ratification. Einhorn, Robin L., “Patrick Henry's Case against the Constitution: The Problem with Slavery,” Journal of the Early Republic 22 (2002): 549–55. John Marshall, George Nicholas, and Edmund Pendleton also addressed the Philips case, although none of them pressed Randolph on his description or added significant details. Kaminsky and Saladino, Documentary History of the Ratification, 9:1086, 1116, 1127, 1333; and Kaminski, John P. and Saladino, Gaspare J., eds., The Documentary History of the Ratification of the Constitution, vol. 10, Virginia, No. 3 (Madison, WI: Wisconsin Historical Society Press, 1993), 1197.

146. Steilen, Matthew, “The Josiah Philips Attainder and the Institutional Structure of the American Revolution,” Howard Law Journal 60 (2017): 434–42.

147. Kaminsky and Saladino, Documentary History of the Ratification, 9:959; and Maier, Pauline, Ratification: The People Debate the Constitution, 1787–1788 (New York: Simon and Schuster, 2015), 257–60. For a recent account of the convention that treats Randolph quite harshly, see Glover, Lori, The Fate of the Revolution: Virginians Debate the Constitution (Baltimore: Johns Hopkins Press, 2016), 110–14.

148. Kaminsky and Saladino, Documentary History of the Ratification, 9:951–52.

149. Randolph, History of Virginia, 268–69; and Roeber, Faithful Magistrates, 104.

150. Jefferson, Notes on the State of Virginia, 120; Jefferson's Draft of a Constitution for Virginia, in The Papers of Thomas Jefferson, vol. 6, 21 May 1781 to 1 March 1784, ed. Julian P. Boyd (Princeton, NJ: Princeton University Press, 1952), 298; and Ralph Wormeley Letterbook (June 13, 1786), quoted in Roeber, Faithful Magistrates, 177.

151. “Vices of the Political System of the U.S.” (April 1787), in The Founders’ Constitution, vol. 1, ed. Philip B. Kurland and Ralph Lerner (Chicago: University of Chicago Press, 1987); and Bilder, Mary Sarah, Madison's Hand: Revising the Constitutional Convention (Cambridge, MA: Harvard University Press, 2015), 35.

152. Henry Tucker to St. George Tucker, April 10, 1772, quoted in Smith, “Virginia Lawyers, 1680–1776,” 39–40; Cullen, Tucker and Law in Virginia, 8–9; Smith, “Virginia Lawyers,” 2, 302–3 (“create a legal elite,” “philosophical lawyers”); Lemmings, David, Professors of the Law: Barristers and English Legal Culture in the Eighteenth Century (Oxford: Oxford University Press, 2000), 17, 241–42; and Gawalt, Gerard W., The Promise of Power: The Emergence of a Legal Profession in Massachusetts, 1760–1840 (Westport, CT: Greenwood Press, 1979), 4, 1819. Both Lemmings and Gawalt show that Americans working to professionalize the practice of law tended to adopt the English ideal of the “good lawyer,” who was liberally educated, morally upright, and an “independent” gentleman.

153. Roeber, Faithful Magistrates, 113, 160–202; and Miller, Juries and Judges, 5–11, 24–26. On Tucker's tenure as a General Court judge, see Charles F. Hobson, “St. George Tucker: Judge, Legal Scholar, and Reformer of Virginia Law,” in Billings and Tarter, “Esteemed Bookes of Lawe”, 198–99, 212–13. Although he did ride circuit, Tucker had initially favored the creation of locally staffed intermediate courts, presumably because such a system would better preserve local control. George Wythe to St. George Tucker, October 10, 1784, Wolf Law Library, William & Mary School of Law, http://lawlibrary.wm.edu/wythepedia/index.php/Wythe_to_St._George_Tucker,_10_October_1784 (last accessed February 22, 2019).

154. Miller, Juries and Judges, 25 (“machinery”). On the effect district courts had on Virginia legal culture and the county courts, see Cullen, Tucker and Law in Virginia, 83–84; and Hobson, Charles F., ed., St. George Tucker's Law Reports and Selected Papers, 1782–1825 (Chapel Hill: University of North Carolina Press, 2013), 36.

155. Tucker, Blackstone's Commentaries, 292–93; Lobban, Michael, The Common Law and English Jurisprudence, 1760–1850 (Cambridge: Cambridge University Press, 1991), 5761; and Cullen, Tucker and Law in Virginia, 127–30.

156. Tucker, Blackstone's Commentaries, 293. The struggle between the General Assembly and the judges of the Court of Appeals had already resulted in the “Remonstrance of 1788,” and would again be at issue in the case of Kamper v. Hawkins (1794). Cullen, Tucker and Law in Virginia, 80–94; and Hamburger, Law and Judicial Duty, 559–74.

157. Turner, Jesse, “A Phantom Precedent,” American Law Review 48 (1914): 322–23; Trent, W. P., “The Case of Josiah Philips,” American Historical Review 1 (1896): 451.

158. Steilen, “Josiah Philips Attainder,” 444–45.

159. Leonard, Gerald, “Jefferson's Constitutions,” in Constitutions and the Classics: Patterns of Constitutional Thought from Fortescue to Bentham, ed. Galligan, Denis (Oxford: Oxford University Press, 2014), 376–78; and David Thomas Konig, Nature's Advocate: Thomas Jefferson and the Republic of Law (forthcoming), ch. 4.

160. Wood, Gordon S., Empire of Liberty: A History of the Early Republic, 1789–1815 (Oxford: Oxford University Press, 2009), 425–32; and Reid, John Phillip, Controlling the Law: Legal Politics in Early National New Hampshire (Dekalb, IL: Northern Illinois University Press, 2004).

161. Hulsebosch, Daniel J., “A Discrete and Cosmopolitan Minority: The Loyalists, The Atlantic World, and the Origins of Judicial Review,” Chicago-Kent Law Review 81 (2006): 835–38; Wright, Benjamin Fletcher, ed., No. 78, The Federalist (Cambridge, MA: Harvard University Press, 1961), 429; Wilson, James, Lectures on Law, Part II, Lecture VI (1790), in The Works of James Wilson, vol. 2, ed. McCloskey, Robert Green (Cambridge, MA: Harvard University Press, 1967), 548; and Steilen, “Bills of Attainder,” 826–89 (attainder in revolutionary New York and Pennsylvania).

162. Vanhorne's Lessee v. Dorrance, 2 Dall. 304, 310, 316 (C.C.D.Pa. 1795); An Act for forfeiting to, and vesting in, the State of New Jersey, the Real Estates of certain Fugitives and Offenders [… ], in Acts of the Council and General Assembly of the State of New Jersey [… ], vol. 1, ed. Peter Wilson (Trenton, NJ: 1784), 67.

163. Schwarz, Twice Condemned, chap. 8.

164. Taylor, Internal Enemy, 107.

165. Hudgins v. Wright, 1 Hen. & M. 134, 141 (Va. 1806); Tucker, St. George, Blackstone's Commentaries: With Notes of Reference […], vol. 2 (Philadelphia: 1803), appendix H, 4142.

166. Halliday, “Law's Histories,” 271.

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