Hostname: page-component-586b7cd67f-t8hqh Total loading time: 0 Render date: 2024-12-05T02:39:11.613Z Has data issue: false hasContentIssue false
  • English
  • Français

Crime, the Criminal Law and Reform in Post-Revolutionary Virginia

Published online by Cambridge University Press:  28 October 2011

Kathryn Preyer
Get access Rights & Permissions [Opens in a new window]

Extract

Exhortations to maintain a reasonable balance between crimes and punishments, condemnations of excessive penal severity and pleas for a reduction in the number of crimes for which death was the penalty do not originate in the eighteenth century. Reform of the criminal law had been an unattained goal of both Puritans and Levellers during the Commonwealth period. Reform efforts ironically paralleled the immense increase of new statutory felonies in eighteenth century England and throughout the western world a simultaneity of attention was paid to reformulating the nature and purpose of punishment. A vigorous reformist sentiment can be observed among enlightened men in Europe and America regarding the necessity of an amelioration in the criminal codes of their nations and central to much of this was the principle of proportionality, that every penalty be proportioned to the offense. In the American colonies, the initiation of rebellion presented an unparalleled opportunity for change.

Type
Articles
Information
Law and History Review , Volume 1 , Issue 1 , Spring 1983 , pp. 53 - 85
Copyright
Copyright © the American Society for Legal History, Inc. 1983

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1. A fine eighteenth century example is Bradford, William, An Enquiry How Far the Punishment of Death is Necessary in Pennsylvania (Philadelphia, 1793) 3Google Scholar, reprinted in Reform of Criminal Law in Pennsylvania (New York, 1972Google Scholar).

2. Cotterell, Mary, ‘Interregnum Law Reform: The Hale Commission of 1652,’ English Historical Review lxxxiii (1968) 689–704CrossRefGoogle Scholar; Veall, Donald, The Popular Movement for Law Reform 1640-1660 (London, 1970) 65-141, 152-66 and 225–40Google Scholar; Shapiro, Barbara, ‘Law Reform in Seventeenth Century England,’ American Journal of Legal History xix 19 (1975) 280–312CrossRefGoogle Scholar; Shapiro, Barbara, ‘Sir Francis Bacon and the Mid-Seventeenth Century Movement for Law Reform,’ American Journal of Legal History xxiv (1980) 331–62CrossRefGoogle Scholar.

3. See Radzinowicz, Leon, A History of English Criminal Law and its Administration i. The Movement for Reform 4 vols. (London, 1948Google Scholar).

4. Gay, Peter, The Enlightenment 2 vols. (New York, 1969) ii, 423–47Google Scholar; Venturi, Franco, Utopia and Reform in the Enlightenment (London, 1971) 95–116CrossRefGoogle Scholar; Kraus, Michael, The Atlantic Civilization (Ithaca, New York, 1979) 127–38Google Scholar.

5. For example, under the statute of 21 James I, c. 27, women who attempted to conceal the fact that they had borne a bastard child which had died were tried for murder unless they could prove that the child had been stillborn. This statute was reenacted by the Virginia Assembly in 1710 after doubts were raised regarding its applicability to the colony. Hening, William Waller, The Statutes at Large; being a Collection of all the Laws of Virginia, from the First Session of the Legislature in the Year 1619, 13 vols. (Philadelphia, 1809-1823) iiiGoogle Scholar, Ch. XII, (October, 1710) 516-17.

6. The English doctrine of benefit of clergy, originally a privilege of the clergy, had been extended to free men from certain crimes punishable by death if they could read or recite a verse from the Bible. During the reign of William and Mary, women were admitted by statute to clergy on equal basis with men and in 1707 the reading test was abolished. In 1732, to clarify the operation of the English reform in the colony Virginia by statute abolished the reading test and extended the privilege to women, slaves and Indians. After conviction of a ‘clergyable’ felony, the prisoner would ‘plead his clergy,’ be sentenced instead to be burned in the thumb and then be released. The burning served as a punishment and as permanent evidence that the person had received his clergy, a privilege which could be claimed only once. The device was an extremely important means of mitigating in practice the use of the death penalty in both England and in the American colonies. Since the common law earlier had developed the doctrine that all felonies should be clergyable for the first offense, it was necessary to take away by statute the benefit of clergy in such serious crimes as treason, murder, rape, arson, burglary, and robbery. The long history of benefit of clergy shows innumerable statutes enacted that made certain crimes clergyable or non-clergyable and the status could change, depending on the degree to which legislative bodies perceived the need for a harsher or more lenient criminal code. In England during the seventeenth and eighteenth centuries, although the classes of persons who could claim the privilege was enlarged, the number of offenses for which it might be claimed was reduced. This came to be the case in many of the colonies as well. The Virginia statute of 1732, for example, although it extended the privilege to women, slaves and Indians, denied it to slaves and to Indians for manslaughter of a white person, for breaking and entering a house in the night and for breaking and entering a house in daytime if more than 5s. was taken. For discussion of the subject see Dalzell, George, Benefit of Clergy in America (Winston-Salem, 1955Google Scholar).

7. For the place of English law in Virginia and the functioning of the judicial system, see Scott, Arthur P., Criminal Law in Colonial Virginia (Chicago, 1930) 13–49Google Scholar; Chitwood, Oliver P., Justice in Colonial Virginia (Baltimore, 1905Google Scholar); Porter, Albert O., County Government in Virginia: A Legislative History 1607-1904 (New York, 1947Google Scholar); Wheeler, Robert, The County Court in Colonial Virginia,’ in Daniels, Bruce C., ed., Town & Country: Essays on the Structure of Local Government in the American Colonies (Middletown, 1978) 111–13Google Scholar; Rankin, Hugh, Criminal Trial Proceedings in the General Court of Colonial Virginia (Williamsburg, 1965Google Scholar); Roeber, A. G., Faithful Magistrates and Republican Lawyers, Creators of Virginia Legal Culture, 1680-1810 (Chapel Hill, 1981Google Scholar).

8. Reform of the criminal law in the new United States is commonly listed as one of the humanitarian reforms generated by the American Revolution but there are remarkably few efforts to analyze the subject in any detail. Nelson, William E., ‘Emerging Notions of Modern Criminal Law in the Revolutionary Era: An Historical Perspective,’ 42 New York University Law Review 450 82 (1967)Google Scholar is an exception dealing in detail with Massachusetts; for New Jersey see O'Connor, John E., ‘Legal Reform in the Early Republic: The New Jersey Experience,’ American Journal of Legal History 22 (1978) 95–105CrossRefGoogle Scholar; for Connecticut see Gaskins, Richard, ‘Changes in the Criminal Law in Eighteenth Century Connecticut,’ American Journal of Legal History 25 (1981) 330–42CrossRefGoogle Scholar; generally, see Friedman, Lawrence M., A History of American Law (New York, 1973) 248–64Google Scholar; Nevins, Allan, The American Stales during and after the Revolution (New York, 1924) 451–65Google Scholar. See also Davis, David B., ‘The Movement to Abolish Capital Punishment in America, 1787-1861,’ American Historical Review 28 (1957) 23CrossRefGoogle Scholar, on this particular subject. On the necessity of certainty of punishment, see Beccaria, Caesare, On Crimes and Punishments, trans. by Paolucci, Henry (New York, 1963) 58–9Google Scholar.

9. Jefferson to Pendleton, Aug. 26, 1776 in reply to Pendleton's letter of August 10, 1776. Boyd, Julian,ed., The Papers of Thomas Jefferson 20 vols. (Princeton, 1950) 1,489–90Google Scholar. 505 (Hereinafter referred to as Jefferson, Papers (Boyd).)

10. On October 15, 1776, the Assembly named Jefferson, George Wythe. Edmund Pendleton, George Mason and Thomas Lightfoot Lee as the Committee of Revisors but Mason soon resigned and Lee died shortly thereafter. Although the proposed revision was presented in 1779, its consideration by the legislature was delayed until 1785. For this intricate story see Julian Boyd's comprehensive note, Jefferson, Papers (Boyd) ii, 308–24. For the subsequent history of the revisal see Cullen, Charles, ‘Completing the Revisal of the Laws in Post-Revolutionary Virginia,’ Virginia Magazine of History and Biography lxxxii (1974) 84–99Google Scholar.

11. The deliberations of the committee are obscure. At a meeting in January. 1777, the revisors determined basic principles and divided their work. A memorandum kept by Mason is our only source of the plans agreed upon. This is printed in Jefferson, Papers (Boyd) ii, 325–28. Jefferson wrote in his autobiography that he had wished the committee to settle leading principles as a guide for his revisions of the law of descents and the criminal law. Ford, Paul L., ed., The Writings of Thomas Jefferson 12 vols. (New York and London, 1904-1905) i, 59Google Scholar (Hereinafter referred to as Jefferson, Writings (Ford).)

12. Jefferson to Skelton Jones, July 28, 1809. Lipscomb, Andrew A. and Bergh, Albert Ellery, eds., The Writings of Thomas Jefferson 20 vols. (1903) xii, 298Google Scholar.

13. Jefferson to Wythe, November 1, 1778. Jefferson, Papers (Boyd) ii, 230. His concern about severity of penalties may be seen in Jefferson's original outline for his proposal which included ‘death by burying alive’ as the penalty for high treason, a penalty stricken out in favor of hanging, in conformity with the plan agreed to by the revisors. Ibid, ii, opposite 305.

14. Jefferson, Autobiography, in Writings (Ford) i, 61. It is unnecessary here to detail the variant texts of the bill as included in the revision. These are indicated in Boyd's notes. Jefferson, Papers (Boyd) ii, 492–507. The text of the crimes bill as printed in the Report of the Revisors does not include the abundant notes and comments made by Jefferson. Jefferson's outline for his bill is reproduced by Boyd, ii, opposite 305 and the document is presented as literally as possible in Appendix 4, ii, 663-64. It was this list that Jefferson employed in preparing Query XIV of Notes on the State of Virginia in 1781.

15. Malone, Dumas, Jefferson the Virginian (Boston, 1948) 301Google Scholar.

16. The entire bill is printed in Jefferson, Papers (Boyd) ii, 492–507. Jefferson scholars have customarily given brief attention to this bill in comparison to that accorded other Jeffersonian legislative reforms perhaps owing to the paucity of materials regarding it, perhaps because it failed to pass, or perhaps because it does not completely accord with modern, humanitarian standards. Notes which Jefferson apparently had in his personal archives have long since vanished although he preserved two elegant manuscripts complete with detailed notes from his researches. Jefferson, Papers (Boyd) ii, 321, 492–504. Malone, Jefferson, supra note 15, 269 72 sees the main significance of the proposals in Jefferson's attempt to relax the severity of punishments making them more humane and rational, with the greatest weakness being the resort to the lex talionis in certain cases. Kimball, Marie, Jefferson War and Peace (New York, 1947) 14Google Scholar, says that the bill ‘eradicating the incredibly brutal survivals of an archaic conception of criminal law, is a monument to his [Jefferson's] humanity.’ See also Kimball, Marie, Jefferson, Road to Glory (New York, 1943) 224–25Google Scholar; Peterson, Merrill, Thomas Jefferson and the New Nation (New York, 1970) 124–33Google Scholar calls the bill ‘definitely humanitarian in principle and design’ and attributes its ‘shocking lapses from humane and liberal standards’ to the force of traditionalism in Jefferson's thinking and his passion for order and system. Chinard, Gilbert, Thomas Jefferson: The Apostle of Americanism (Boston, 1929) 93–5Google Scholar, feels the bill, despite the reflection of the ideas of Montesquieu and Beccaria in the preamble, can hardly be called humanitarian ‘in the modern sense of the word.’ Kean, , ‘Jefferson as Legislator,’ 11 Virginia Law Journal 714 (1887Google Scholar), praises the bill for its removal of the death penalty in the case of 27 felonies at a date more than a generation prior to similar changes in England but does not discuss the severity of some of the secondary punishments. Dumbauld, Edward, Thomas Jefferson and the Law (Norman, Ok., 1978) 138–39Google Scholar, pays only slight attention to the bill.

17. Treason was defined as: ‘If a man do levy war against the Commonwealth or be adherent to the enemies of the commonwealth giving to them aid and comfort in the commonwealth, or elsewhere.’ An overt act was required and the language ‘the said cases, and no other shall be adjudged treason’ was intended to prevent what Jefferson in his notes called ‘an inundation of Common Law Treasons.’ Jefferson, Papers (Boyd) ii, 494.

18. Jefferson made no note of the possible anomaly here. The family of one convicted of murder retained half the land and goods outright whereas for seven years the family of one convicted of manslaughter would receive only a portion of profits on that portion. Manslaughter had been punishable by burning in the hand and forfeiture of chattels.

19. Jefferson, Papers (Boyd) ii, 469n.

20. Jefferson notes that bigamy (being twice married, the former partner living) had not been penal until the statute of James 1. Bestiality, he said, could never make any progress. ‘It cannot therefore be injurious to society in any great degree, which is the true measure of criminality in foro civili, and will ever be properly and severely punished by universal derision.’ Jefferson, Papers (Boyd) ii, 497–98.

21. Jefferson, Papers (Boyd) ii, 499, 501. The scale of penalties is as follows:

Arson—hard labor 5 years; treble restitution to victim.

Asportation of vessels or goods thereon or plundering wrecks—hard labor 5 years; treble restitution to victim.

Robbery —4 years hard labor; double reparation to victim.

Burglary—4 years; double restitution.

Housebreaking—3 years hard labor; reparation to victim.

Horsestealing—labor 3 years and reparation to victim. Jefferson distinguished this offense from other larcenies in Virginia ‘where these animals generally run at large, the temptation is so great and frequent, and the facility of commission so remarkable.’

Grand Larceny—pillory for 1/2 hour, hard labor 2 years and reparation to victim. Petty Larceny—pillory for 1/4 hour, hard labor 1 year and reparation to victim. Robbery or Larceny of bonds, bills obligatory, bills of exchange, promissory notes, lottery tickets, paper bills issued as money, loan certificates issued by Virginia or any of the United States, or Inspector's tobacco notes to be punished in the same manner as robbery or larceny of the money or tobacco represented by such paper.

The bill made no provision for instances in which the convicted were unable to pay restitution.

22. Jefferson, Papers (Boyd) ii, 500-1, 503-4, 506–7n. See Boyd's suggested linkage between Jefferson's work on this bill and the bill of attainder he prepared against Josiah Phillips which was approved by the legislature on May 30, 1778.

23. Jefferson, Papers (Boyd) ii, 502–04.

24. Jefferson, Papers (Boyd) ii, 503. The author has no explanation why this change was made in the finished bill. The section applied also to those who peremptorily challenged more jurors than the allowed number. In his notes Jefferson questioned whether it would not be better simply to consider additional challenges as void and proceed to trial, a question he also raised about refusals to plead. The entering of a guilty plea, of course, eliminated trial and the court proceeded to impose punishment.

25. Jefferson, Papers (Boyd) ii, 503–04. It is not certain that this language carries precisely the same meaning as the modern ‘against the weight of the evidence.’ Laws of evidence at this time were by no means clear. In view of the restrictions on judicial discretion elsewhere in the bill, I doubt that the principal intent was to increase markedly the discretion of the judge. It seems more likely that this provision was included to insure the defendant (now deprived of benefit of clergy and pardon) an opportunity for another trial in any case where irregularities in the testimony colored the outcome to his prejudice.

26. Jefferson, , ‘Autobiography, ’ Writings (Ford) i, 57Google Scholar.

27. Jefferson, Papers (Boyd) ii, 492–93. Jefferson, prior to 1776, had copied into his Commonplace Book long extracts of Eden's and Beccaria's work. Chinard, Gilbert, ed., The Commonplace Book of Thomas Jefferson (Baltimore, 1926Google Scholar). Blackstone's references to Beccaria's theories undoubtedly communicated knowledge of them to a wider American audience than may have read the original. Jefferson's bill differs from Beccarian doctrine although the crucial principle of proportionality is present in both. Unlike Beccaria, Eden did not advocate abolition of the death penalty but advocated its restriction to seven felonies. For relevant dicussions of Beccaria, see Spurlin, Paul, ‘Beccaria's Essay on Crimes and Punishments in Eighteenth Century America,’ Voltaire Studies xviii (1963) 1489–1504Google Scholar; Kraus, Michael, The Atlantic Civilization (Ithaca, 1949) 127–38Google Scholar; Phillipson, Coleman, Three Criminal Law Reformers (Montclair, 1923Google Scholar); Maestro, Marcello, Voltaire and Beccaria as Reformers of the Criminal Law (New York, 1942Google Scholar); Maestro, Marcello, Cesare Beccaria and the Origins of Penal Reform (Philadelphia, 1973Google Scholar). For efforts to reform the criminal law of England, see Radzinowicz, History of the Criminal Law, supra note 3, 1; Ignatieff, Michael, A Just Measure of Pain (New York, 1978CrossRefGoogle Scholar).

28. Scott, Criminal Law in Colonial Virginia, supra note 7, 319-21. In the absence of records of the General Court before which these cases were tried Scott has used the Virginia Gazette. Information given there would, of course, have no bearing on the numbers who were not sent on to the grand jury by the examining courts in the counties.

29. Jefferson, Papers (Boyd) ii, 505.

30. In England, transportation of convicts under sentence of death was not a substantive punishment, but a form of conditional pardon by the Crown. For the evolution of the statutory basis for this practice, see Radzinowicz, History of the Criminal Law, supra note 3, 108-10.

31. Jefferson to Pendleton, August 26, 1776, Jefferson, Papers (Boyd) ii, 505.

32. Trevor Colburn discusses the force of Jefferson's convictions regarding the Saxon model and relates this to Jefferson's views on land tenure, representative government, annual elections, a standing army and the disestablishment of the Anglican church. The Lamp of Experience, Whig History and the Intellectual Origins of the American Revolution (Chapel Hill, 1965) 158–84Google Scholar. Solutions to problems of crime and punishment can be seen as another dimension of the degree to which the Saxon past was significant to Jefferson's thinking. See also Peterson, Thomas Jefferson, supra note 16, 57-61. For the general English background of such views, see particularly Pocock, J. G. A., The Ancient Constitution and the Feudal Law (Cambridge, 1951Google Scholar) and Hill, Christopher, ‘The Norman Yoke,’ Puritanism and Revolution (London, 1958Google Scholar).

33. Hening, Statutes at Large, supra note 5, i, 397-98 (March, 1655-56). This statute was not reenacted in 1660, and thereafter, convicted felons forfeited their property according to English practice. Elsewhere the practice varied. See Morris, Richard B., Studies in the History of Early American Law (Reprint, New York, 1974) 247–50Google Scholar. At common law there was no recovery where death resulted from murder both on the ground that the right of action founded upon torts of any description terminated with the life of either participant and that any right of action had merged in the felony. The latter principle, however, was not carried out consistently because civil remedies were available after criminal prosecutions in such felonies as robbery and larceny.

34. Billings, Warren, ‘Some Acts not in Hening,’ Virginia Magazine of History and Biography lxxxiii (1975) 62Google Scholar; Scott, supra note 7, 225-29. In 1705, the penalty for hog stealing was increased to include whipping and fine as well as payment to the owner and informer. Hening, Statutes at Large, supra note 5, iii (October, 1705) ch. XIV, 276-77.

35. Haskins, George, Law and Authority in Early Massachusetts (New York, 1960) 153–54Google Scholar; Morris, supra note 33, 53-54; Nelson, William E., Americanization of the Common Law: The Impact of Legal Change on Massachusetts Society, 1760-1830 (Cambridge, Mass., 1975Google Scholar). The practice of selling free persons into servitude fora limited term if they could not pay appropriate restitution was also a part of Massachusetts law. Powers, Edwin, Crime and Punishment in Early Massachusetts, 1620-1692 (Boston, 1966) 404-08, 410Google Scholar; Flaherty, David, ‘Crime and Social Control in Provincial Massachusetts,’ Historical Journal xxiv (1981) 349–51Google Scholar. In colonies spawned by the Bay Colony, restitution was also one of the penalties for theft. Baumgartner, M. P., ‘Law and Social Status in Colonial New Haven,’ Research in Law and Sociology i (1978) 168–70Google Scholar; Ehrlich, Jessica Kross, ‘To Hear and Try All Causes Betwixt Man and Man: The Town Court of Newtown, 1659-1690,’ New York History lix (1978) 282, 302Google Scholar. In the early criminal codes of Pennsylvania crimes against property were also punished by multiple restitution. Fitzroy, H. W. K., ‘The Punishment of Crime in Provincial Pennsylvania,’ Pennsylvania Magazine of History and Biography lx (1936) 242–69Google Scholar; Gipson, Lawrence H., ‘Crime and Punishment in Provincial Pennsylvania,’ Lehigh University Publications ix (1935) 2Google Scholar.

36. Stephen, James Fitzjames, A History of the Criminal Law of England 3 vols. (New York, 1973) iii, 94–5Google Scholar. In 1752, however, 24 Geo. II, c. 37 made the punishment for murder more severe than the punishment for other capital crimes by providing that the body of a convicted murderer after death be dissected or hung in chains. An English judge had the power to remit these special severities; this was not so in the proposed Virginia legislation. The earlier colonial rule requiring the prosecuting for murder of any woman who concealed the death of a bastard child unless she could prove that the child had been stillborn was omitted. Jefferson, Papers (Boyd) ii, 494n.

37. Scott, Criminal Law in Colonial Virginia, supra note 7, 195 96. See Elkanah Watson's account of seeing a slave hanging in chains, executed for the murder of his master in 1777. Men and Times of the Revolution: or the Memoirs of Elkanah Watson, including Journals of Travels in Europe and America (New York, 1856) 43Google Scholar.

38. In his study of slaves and crime in Virginia, Professor Philip Schwarz has found 12 instances of this punishment between 1745 and 1784. Only five instances appear after that date. The author is very grateful to Professor Schwarz for sharing this information with her.

39. Blackstone, Willam, Commentaries on the Laws of England, A Facsimile of the First Edition of 1765-1769 4 vols. (Chicago, 1979) iv, 196Google Scholar.

40. Genovese, Eugene, Roll, Jordan, Roll, The World the Slaves Made (New York, 1974) 224-25, 616Google Scholar; Phillips, Ulrich B., ‘Slave Crime in Virginia,’ American Historical Review xx (1915) 336–40CrossRefGoogle Scholar. Phillips found that murders of masters and mistresses almost equalled the number of murders of other slaves. More detailed analysis of the subject of slaves and crime in Virginia is the subject of the ongoing work of Philip Schwarz.

41. Sabine, Lorenzo, Notes on Duels and Duelling (Boston, 1859) 43Google Scholar; Reed, John R., Victorian Conventions (Ohio, 1975) 142–55Google Scholar.

42. Blackstone, Commentaries, supra note 39, iv, 199.

43. Discussion of dueling commonly focuses upon the western frontier or the code of honor of the antebellum southern elite. See, for example, Franz, Joe B., ‘The Frontier Tradition: An Invitation to Violence,’ in Violence In America; Historical and Comparative Perspectives, Graham, Hugh Davis and Gurr, Ted Robert, eds., (New York, 1969) 127–53Google Scholar; Franklin, John Hope, The Militant South (Cambridge, Mass., 1958) 44–62Google Scholar; Osterweis, Rollin G.. Romanticism and Nationalism in the Old South (New Haven, 1949) 96-98, 128-29, 168-69, 200–03Google Scholar; Williams, Jack K., Dueling in the Old South (College Station, 1980Google Scholar); Bruce, Dickson D. Jr., Violence and Culture in the Antebellum South (Austin, 1979Google Scholar); Stowe, Steven M., ‘The “Touchiness” of the Gentleman Planter: the Sense of Esteem and Continuity in the Antebellum South,’ The Psychohistory Review viii (1979) 6–15Google Scholar. Richard Buel has argued that dueling with its close ties to social status in the South provided a way in the early national period for members of the gentry to distinguish themselves from the common man. Securing the Revolution (Ithaca, 1972) 80–81Google Scholar. The most recent discussion of antibellum dueling is Wyatt-Brown, Bertram, Southern Honor, Ethics and Behavior in the Old South (New York, 1982) 166-67, 328, 350–61Google Scholar.

44. This is contrary to the views of Boorstin, Daniel, The Americans, The National Experience (New York, 1965) 207Google Scholar. But see Stanard, M. N., ‘A Virginia Challenge in the Seventeenth Century,’ Virginia Magazine of History and Biography ii (1894-1895) 96–97Google Scholar. Greene, Evarts B., ‘The Code of Honor,’ Colonial Society of Massachusetts Transactions xxvi (1927) 368–85Google Scholar; Stevens, William O., Pistols at Ten Paces, the Story of the Code of Honor in America (Boston, 1940) 9–14Google Scholar.

45. Greene, Jack, ed., The Diary of Colonel London Carter of Sabine Hall, 1752-1776, 2 vols. (Charlottesville, 1965) ii, 1143Google Scholar. In 1765 John Scott of Prince William County challenged a neighbor who had insulted his father, the Rev. James Scott. His brother-in-law, serving as a second, was so insulted by Scott's antagonist that he demanded satisfaction, took Scott's place and killed the man. The episode took place in a churchyard and the malefactor was acquitted on a plea of self-defense. Stanard, Mary, Colonial Virginia, Its People and Customs (Philadelphia, 1917) 159Google Scholar.

46. In 1766, a naval officer challenged Maurice Moore, a North Carolina legislator. In 1768, Henry Laurens challenged Judge Leigh of the vice-admiralty court to a duel following the seizure of his vessels and the proceedings in that court. In 1771, John Hay had killed his friend, Peter DeLancy, deputy postmaster for the southern district of North America, in a duel. The young John Jay in 1773 was ready to defend his honor by duel. In 1777, Christopher Gadsden dueled with Major General Robert Howe and Button Gwinnett was killed in a duel with Lachlan Mclntosh. Gen. Thomas Cadwalader seriously wounded Gen. Thomas Conway in a duel in 1778. Horatio Gates and James Wilkinson dueled in that year as did Andrew Porter of Pennsylvania who killed a fellow officer who had ‘insulted’ him by calling him a schoolteacher. In 1778, Gen. Francis Marion, ‘the Swamp Fox,’ accepted a challenge from a British officer who then declined to meet him. John Laurens wounded Major General Charles Lee in a duel in 1778; the following year Lee challenged Justice William Henry Drayton of Charleston who declined declaring that although custom sanctioned the duel for the army it did not for the judiciary. The above list was compiled from Johnson, Allen and Malone, Dumas, eds., Dictionary of American Biography 22 vols. (New York, 1928-1944) xi, 33Google Scholar; xi, 36; iii, 398; ix, 295; vii, 186; x, 82; viii, 68; Stevens, Pistols, supra note 44, 19; Morris, Richard, Seven Who Shaped Our Destiny (New York, 1973) 150–51Google Scholar; Jensen, Merrill, The Founding of a Nation (New York, 1968) 301–02Google Scholar. Lt. Thomas Anburey of the British army reported that among the British troops billeted in Charlottesville in 1779 there were six or seven duels fought in three or four days. Travels through the Interior Parts of America 2 vols. (Boston, 1923) ii, 185–86Google Scholar.

47. Stevens, Pistols, supra note 44, 15-25. For dueling in the army, see Royster, Charles, A Revolutionary People at War (Chapel Hill, 1979) 208–10Google Scholar.

48. Littell, John S., ed., Memoirs of His Own Times, with Reminiscences of the Men and Events of the Revolution (Philadelphia, 1846) 180Google Scholar.

49. 22 & 23 Chas. II, c.1 (December 21, 1670). This act was construed very narrowly. In 1722, the Waltham Black Act extended heavy penalties for violent offenses committed or likely to be committed. James Fitzjames Stephen, supra note 36, iii, 112-13; Radzinowicz, History of the Criminal Law, supra note 3, 1, 69-73; Thompson, E. P., Whigs and Hunters, The Origin of the Black Act (New York, 1975) 245–58Google Scholar.

50. William Fouchee, the surgeon of Richmond, for example, was one among many who had had an eye gouged out, this by a ‘low fellow’ who insisted on fighting him. Anburey, Travels, supra note 46, ii, 201-02.

51. Hening, Statutes at Large, supra note 5, viii (February, 1772) 520.

52. Blackstone had written that the law of retaliation was an inadequate rule of punishment partly because on repetition of the offense the punishment could not be repeated. Blackstone, Commentaries, supra note 39, iv, 12-14. The revisors solved the problem by giving to the jury the power to decide which part of the body was of nearest value to be taken or disfigured in cases where the same part was already missing. Jefferson, Papers (Boyd) ii, 498.

53. The doctrine of proportionality and discussion of the efficacy of capital punishment, particularly for theft, were staples of eighteenth century reform literature. Closer in principle to the proposed bill than the more famous works of Beccaria and Eden are Kames's, Lord ‘History of the Criminal Law’ in his Historical Law Tracts (Edinburgh, 1758, 1761Google Scholar) and Dagge's, HenryConsiderations on the Criminal Law 2 vols. (London, 1772)Google Scholar. There were advocates in eighteenth century England of aggravated forms of the death penalty to maximize deterrence but the author knows of no proposal which duplicated Jefferson's scale of precise retaliation for offenses against the person. See Radzinowicz, History of the Criminal Law, supra note 3, i, 231-59.

54. Jefferson to Pendleton, August 26, 1776, Jefferson, Papers (Boyd) ii, 505.

55. The first reference is June 26, 1780. McIllwaine, H. R., ed., Journal of the Council of the State of Virginia (Richmond, 1932) ii, 260Google Scholar.

56. Ibid., iii, 74, 89, 201, 443, 456. After the war, conditional pardons were granted on terms of ‘servile but useful labour’ to be determined by the corporation of Richmond, prisoners being turned over to custody of the city. Gov. Patrick Henry to Mayor of the City of Richmond, January 13, March 28, May 12, 1785. Executive Letterbook 3. Microfilm, Virginia State Library. Some were apparently used on the construction of the James River Canal. Johnson, Herbert A., ed., The Papers of John Marshall (Chapel Hill, 1974) i, 205nGoogle Scholar.

57. Commonwealth v. Fowler 4 Call (Va.) 36. A supporter of the reform of conditional pardons, Joseph Jones, a member of the council, wished to see the experiment continued only if sanctioned by the legislature. McIllwaine, ed., Journal of the Council, supra note 55, iii, 422-23.

58. Madison to Washington, November 11, 1785, Hutchinson, William T. et al. , eds., The Papers of James Madison (Chicago, 1962-) viii, 403Google Scholar. (Hereinafter cited as Madison, Papers.)

59. Madison to Jefferson, January 22, 1786, Jefferson, Papers (Boyd) ix, 195; to Monroe, December 9, 17, 1785, Madison, , Papers viii, 436-37, 445–46Google Scholar. Madison mentions that amendments were made but he does not explain what they were. Neither do legislative materials, published or unpublished, or newspapers. For the completion of the entire revisal in 1792, see Cullen, Charles, ‘Completing the Revisal of the Laws in Post-Revolutionary Virginia,’ Virginia Magazine of History and Biography lxxxii (1974) 84–99Google Scholar.

60. Hening, Statutes at Large, supra note 5, xii, 45 56.

61. Madison to Washington, December 24, 1786, Madison, , Papers supra note 58, ix, 225Google Scholar. Defeat of the bill came ‘after being purged of its objectionable peculiarities’ but Madison does not explain which ones he means. He had anticipated ‘the most vigorous attack’ in both houses of the legislature. To Jefferson, December 4, 1786, Jefferson, Papers (Boyd) x, 575.

62. Madison to Jefferson, February 15, 1787. Jefferson, Papers (Boyd) xi, 152.

63. Jefferson to Madison, December 16, 1787, Jefferson, Papers (Boyd) x, 603–04.

64. Jefferson, , Writing (Ford), i, 69Google Scholar.

65. Legislative records for the period do not report debates. Newspapers which have been examined make no mention of the subject. Searches in unpublished letters of members of the assembly have produced nothing. Legislative and executive materials, both printed and unpublished, have shed no light on this bill.

66. There are no published reports of the decisions of the General Court from 1777 to 1788. A selection of cases, chiefly criminal cases decided from 1789-1814, was published in 1815 by William Brockenbrough and Hugh Holmes, two of the judges; in 1826 Brockenbrough published a second volume including decisions from 1815 to 1826. By the revision of 1788, the General Court was given appellate jurisdiction over the district courts in criminal cases. Virginia Cases therefore does not supply the type of information necessary to evaluate the nature and extent of crime in the post-Revolutionary period. Manuscript notes on cases heard at the district court level were kept by St. George Tucker and other judges very likely did the same but no comparable notes, to the author's knowledge, have ever come to light.

67. Hening, Statutes at Large, supra note 5, xii, (December 22, 1788) 730-63. The purpose of the creation of the district courts was to alleviate congestion in the General Court. Courts were held in each district twice annually and cases were heard from the several counties in that district. The courts always met at the same place in the district and each district court was presided over by two General Court judges; each pair having responsibility for three or four districts. The act also increased the number of General Court judges from 9 to 12. The district courts were replaced in 1808 by the Superior Courts of Law. For discussion of these courts, see Roeber, A. G., Faithful Magistrates and Republican Lawyers; Creators of Virginia Legal Culture, 1680-1810 (Chapel Hill, 1981) 203–30Google Scholar.

68. In the Virginia State Library, Richmond, the records are located within the county records of the county in which the court was held and consist of Order Books; no case papers have been located. The six district courts are:

Frederick: sat at Winchester; includes Frederick, Berkeley, Hampshire, Hardy and Shenandoah counties

Prince William: sat at Dumfries; includes Fairfax, Fauquier, Loudoun and Prince William counties

Northumberland: sat at Northumberland County Courthouse; includes Westmoreland, Lancaster, Northumberland and Richmond counties

Accomac: sat at Accomac County Courthouse; includes Accomac and Northampton counties

Augusta: sat at Staunton; includes Augusta, Rockbridge, Rockingham and Pendleton counties

Fredericksburg City: sat at Fredericksburg; includes Spotsylvania, Caroline, King George, Stafford, Orange and Culpeper counties.

69. Accomac District accounts for a sizable proportion of this number. Of the 25 terms in which that court sat between 1789 and 1801, in 16 of them no indictments were returned. In three terms no grand jury was even impanelled. This may be because the required 24 members had not turned up in obedience to process; repeatedly individuals were summoned to answer and pay fines for this offense. Accomac County Order Book 1789-1797; District Court Order Book 1797-1805, Reel #110. Virginia State Library, Richmond.

70. Five were to charges of larceny, five murder (one a woman), two horse stealing, three unspecified felony, and one rape.

71. See note 28 supra.

72. In descending order for other districts: Fredericksburg City District there were 34, in Augusta 23, in Northumberland 15, in Prince William 8, and in Accomac 4. With the exception of rape, for each of the different felonies the numbers are greater also in the Frederick Court. The information presented here and elsewhere in the paper is compiled from the following manuscript records available on microfilm in the Virginia State Library, Richmond.

Accomac County Order Book 1789-1797; District Court Order Book, 1797-1805, Reel #110

Augusta County District Court Order Book 1789-1793, Reel #91; District Court Order Book, 1789-1803, Reel #92

Frederick County Superior Court Order Book (District Court) 1789-1793, 1794-1797, Reel #95; 1797-1800, Reel #96

Fredericksburg City District, Law Orders A, 1789-1793, one volume photostat Northumberland County District Court Order Book, 1789-1793, 1793-1802, Reel #67

Prince William District Court Order Book, 1793, 1797-1798, 1799, Reel #30

73. The meaning of this word is not precise. The author is uncertain whether it should be understood simply as an unskilled laborer employed or not, or taken to mean vagrant, a word which never appears in these records. Comparable difficulties have plagued studies of eighteenth century labor. See Smith, Billy G., ‘Material Lives of Laboring Philadelphians, 1750 to 1800,’ William and Mary Quarterly, 3d ser. xxxviii (1981) 166Google Scholar. In urban Philadelphia, Smith classified ‘laborers’ as an unskilled group.

74. See the discussion of the problems related to the amount of unknown crime in Beattie, J. M., ‘Towards a Study of Crime in Eighteenth Century England: a Note on Indictments,’ in Williams, David and Fritz, Paul, eds., The Triumph of Culture: Eighteenth-Century Perspectives (Toronto, 1972) 302–04Google Scholar.

75. Hening, , Statutes at Large xiii, 30 (Nov. 27, 1789Google Scholar); A Collection of All Such Acts of the General Assembly of a Public and Permanent Nature, as are Now in Force: Comprising the First Volume of the Revised Code (Richmond, 1814) i, 251Google Scholar (Dec. 10, 1792). The latter statute also provided for $20 rewards to those who aided in the apprehension of horse thieves and payment of $170 to the heirs of anyone killed in the effort to capture such offenders, a clue to the possible hazards of such an enterprise.

76. Bradford, William, An Enquiry How Far the Punishment of Death is Necessary in Pennsylvania (Philadelphia, 1793). (New York, 1972.) 62Google Scholar. Randolph also told Bradford that in Virginia the proportion of those acquitted for rape in comparison to those charged was ‘very great.’ These records show a low incidence of those formally charged with this crime (5), of whom only one, a black, was sentenced to death.

77. Hening, Statutes at Large, supra note 5, xiii, 30-32 (Nov. 27, 1789); A Collection of All Such Acts of the General Assembly … of the Revised Code (Richmond, 1814) i, 249–50Google Scholar (Dec. 17, 1792); i, 350-53 (Dec. 19, 1792).

78. See note 72 supra. There were 35 prosecutions for murder and a total of 71 prosecutions for grand larceny (39) and unspecified ‘felony’ (32). To have prosecutions for murder as high as 50% of those for larceny is extraordinary. For rough comparison with Massachusetts and South Carolina, see Hindus, Michael, Prison and Plantation: Crime, Justice and Authority in Massachusetts and South Carolina, 1767-1878 (Chapel Hill, 1980) 64–5Google Scholar.

79. The number of indictments for assault is but a small patch on the countless number of civil suits brought in Trespass AB. The number of one-penny damages awarded by juries in these cases reflects the commonplace quality of this type of behavior and may also reflect jury condemnation of the one who brought such action in court. Of criminal prosecutions, only a few actually came to trial, often because of the failure of process to bring either the accused or the witnesses in for trial. Fines for those convicted were set by the jury and were generally small.

80. David Flaherty, ‘Crime and Social Control,’ supra note 35, 339-60; William E. Nelson, Americanization, supra note 35, 37. For information about the incidence of crimes of violence elsewhere, see Klein, Rachel, ‘Ordering the Backcountry: The South Carolina Regulation,’ William and Mary Quarterly, 3rd ser. xxxviii (1981) 661–80CrossRefGoogle Scholar; Greenberg, Douglas, Crime and Law Enforcement in the Colony of New York, 1691-1776 (Ithaca, 1974Google Scholar); Hindus, Prison and Plantation supra note 78; Spindel, Donna J., ‘The Administration of Criminal Justice in North Carolina, 1720 1740,’ American Journal of Legal History 25 (1981) 141–62CrossRefGoogle Scholar.

Flaherty argues that eighteenth century Massachusetts was remarkably free of serious crime and probably of all crime. He attributes this to a small and relatively homogenous population living within physical confines of townships, the out-migration of potentially disruptive young men who sought economic opportunities elsewhere and an effective system of prosecuting serious breaches of the law. The commitment of elite groups in the towns and churches to law and order and the role of the family in inculcating standards of behavior are other components of the system of social control over criminal activity. Virginia by the latter eighteenth century presents limited parallels in the Tidewater and the polar opposite in western counties. David Flaherty, ‘Crime and Social Control,’ supra note 35, 339, 355-56.

81. Prior to 1692, slaves, like free men, were tried for capital crimes only in Jamestown, and before a jury. To improve the speed of determination and punishment where necessary, the governor was empowered in 1692 to issue specific commissions of oyer and terminer to persons in the county (normally the justice of the peace) to try slaves there without juries and to order the execution of convicted slaves. In 1765, another statute provided that each county court be givn a standing commission of oyer and terminer to try without a jury and acquit or execute any slave accused of a capital offense. Hening, Statutes at Large, supra note 5, ii, 102-03 (1692); viii, 137-39 (1765).

82. Of 248 persons examined, 121 were bound over for trial, 88 discharged, 27 punished by the examining court, 12 held for the county grand jury. Figures drawn from the following county court records available on microfilm from the Virginia State Library: Caroline Co. Order Books (1778-1787), Reel #20, 21, 22; Frederick Co. Order Books (1781-1784; 1789-1795), Reel #74, 75, 76, 77; Albemarle Co. Order Books (1783-1785; 1793-1795), Reel #46, 47; King George Co. Order Books (1786-1792), Reel #26; Henrico Order Books (city of Richmond) (1781-1787; 1791-1799), Reel #69, 71, 72; Westmoreland Co. Order Books (1776-1795), Reel #61-62; Fairfax Co. Order Books (1783-1788), Reel #39; Northumberland Co. Order Books (1773-1797), Reel #56, 57, 58, 59; Augusta Co. Order Books (1774-1785), Reel #67; Fauquier Co. Minute Books (1773-1795), Reel #47, 48, 49. Compare with information given for an earlier period of the eighteenth century for Caroline, King George and York counties in the Tidewater. Roeber, A. G., ‘Authority, Law and Custom: The Rituals of Court Day in Tidewater Virginia, 1720 to 1750,’ William and Mary Quarterly, 3d ser. xxxvii (1980) 35nGoogle Scholar. In Orange County between 1735 and 1775 an average of two persons a year were examined for felony of whom less than half were held for trial at the capital. Arthur P. Scott, Criminal Law, supra note 7, 47n. Order Books and Minute Books do not include case papers. Extant case papers, few and far between and located in a handful of courthouses, are relevant to civil litigation rather than criminal prosecution. We, therefore, lack information about the exact nature of the proceedings, the facts of the case, examination of witnesses, the questioning of the accused and the nature of evidence presented. For one early example of the process of examination before the called court of Westmoreland Co. June 3, 1715, see ‘The Pulpit Cloth of Appomattox Church,’ William and Mary Quarterly, 1st ser. xxvii (1918) 28–33Google Scholar.

It is also interesting to observe the surprisingly low incidence of misdemeanors in these county records: slander, fornication or other crimes of morality are few and far between. Most of those presented by grand juries of the county were charged with not keeping the roads or for selling liquor without a license and keeping a tippling house. Since drunkenness virtually never appears, one is left to think that the absence of revenue from licensing or an effort to contain the sale of liquor was the offense at issue.

84. Saunders, Robert M., ‘Crime and Punishment in Early National America, Richmond, Virginia 1784-1820,’ Virginia Magazine of History and Biography, lxxxvi (1978) 33–38Google Scholar. The information presented is interesting but the value of the article is diminished by its misunderstanding of the function of the Hustings Court which served as an examining court for free people and as a trial court for slaves. For the increase in crime in Richmond during the Revolutionary war years, see Ward, Harry M. and Greer, Harold E. Jr., Richmond During the Revolution, 1775-1783 (Charlottesville, 1977) 109–25Google Scholar.

85. Shepherd, Samuel, Statutes at Large of Virginia, 1792-1806: Being a Continuation of Hening Statutes at Large 3 vols. (Richmond, 1835-1836), ii, 5–16Google Scholar (Dec. 15, 1796). Virginia Argus (Richmond) Friday, Dec. 9, 1796. Details about the evolution and passage of this legislation are as elusive as for Jefferson's proposal almost 20 years before. No debate is reported in the Journal of the House of Delegates and none has been located elsewhere. The bill passed the House on Dec. 7 by a vote of 95-66 and the Senate on Dec. 15, no vote being recorded. Blocs of opposition votes in the House centered in Grayson and Pittsylvania counties to the west along the North Carolina border but as a whole the vote may illustrate the localized force of particular domestic issues in Virginia referred to by Beeman, Richard, The Old Dominion and the New Nation, 1788-1801 (Lexington, 1972) 92–3Google Scholar. See also Wyatt, Edward. ‘George Keith Taylor. 1769-1815, Virginia Federalist and Humanitarian,’ William and Mary Quarterly, 2nd ser. xvi (1936) 1–18CrossRefGoogle Scholar.

86. The terms of imprisonment set forth:

high treason: 6 to 12 years at hard labor or in solitude

arson: principals and accessories: 5 to 12 years

rape: principals and accessories before the fact: 10 to 21 years

second degree murder: 5 to 18 years

robbery or burglary: principals and accessories: restoration of full value and 3 to 10 years

horsestealing: principals and accessories before the fact: restoration of the animal or full value, 2 to 7 years

larceny above the value of $4: restoration of full value, 1 to 3 years

petty larceny under $4: restoration of full value and 6 months to 1 year

counterfeiting of gold or silver coin or notes of the banks of Alexandria or the United States: fine not exceeding $1,000, the amount of the fine to be set by the court; 4 to 15 years

malicious maiming or disfiguring: 2 to 10 years and $1,000 fine, 3/4 of which to party grieved

voluntary manslaughter: imprisonment at hard labor and solitary confinement for 2 to 10 years and security for good behavior during life, or for less time according to the nature and enormity of the offense, second offense: imprisonment at hard labor and solitary confinement for 6 to 14 years

involuntary manslaughter happening in consequence of unlawful act: attorney general may waive the felony and charge with misdemeanor; attorney general may charge both offenses in same indictment in which case the jury may acquit on one and convict on the other.

87. Virginia State Library House of Delegates, Loose Papers, 1796.

88. Virginia State Library House of Delegates, Loose Papers, 1796. This section provided also that convicted slaves, so transported, would be sold for the best price obtainable, the amount of the sale, after deduction for the price of transportation, to be applied to discharge the value of the slave, an amount to be fixed by the court on the condemnation of such slaves. The provision for jury trial also specified that slaves be allowed the same number of challenges allowed to others.

89. ‘I have been induced to take the liberty from an anxious desire that no time should be lost in bringing this humane law into operation, and which is not to be in force until the necessary Buildings are completed.’ Wood to Wistar, Jan. 6, 1797. Virginia State Library Executive Letterbooks, Reel #5.

90. Taylor, George Keith, Substance of a Speech … on the Bill to Amend the Penal Laws of this Commonwealth (Richmond, 1796) 7, 10–11Google Scholar. Taylor listed as the objects of punishment: 1. Amendment to delinquent 2. Example to others 3. Retribution to the injured party 4. Retribution to the public.

91. Ibid. 7, 25, 29, 30-31, 35-36.

92. Pennsylvania had limited the death penalty to murder in 1794, the first state to do so. David B. Davis, ‘The Movement to Abolish Capital Punishment in America, 1787-1861,’ American Historical Review (1957) 23-46. New York in 1796 approved funds for a state prison and soon opened Newgate; New Jersey completed a penitentiary in 1797. The Virginia penitentiary provided for in the bill under discussion opened in 1800. See the brief discussion of this period in Rothman, David, The Discovery of the Asylum (Boston, 1971) 57–62Google Scholar. For analysis of the creation of the penitentiary in England, see Ignatieff, Michael, A Just Measure of Pain; the Penitentiary in the Industrial Revolution 1750-1850 (New York, 1978Google Scholar).

93. This subject deserves further attention. See Cometti, Elizabeth, ‘Depredations in Virginia during the Revolution,’ in Rutman, Darrett, ed., The Old Dominion: Essays in Honor of Thomas P. Abernethy (Charlottesville, 1964) 147–49Google Scholar.

94. Harrison, Fairfax, ‘When the Convicts Came,’ Virginia Magazine of History and Biography xxx (1922), 250–60Google Scholar; Smith, Abbott E., Colonists in Bondage, White Servitude and Convict Labor in America 1607-1776 (Chapel Hill, 1947) 124, 128–33Google Scholar; Rankin, Hugh, Criminal Trial Proceedings in the General Court of Colonial Virginia (Charlottesville, 1965) 124Google Scholar.

95. Jefferson, , ‘Autobiography,’ Writings, (Ford) i, 71–74Google Scholar.

96. See Isaac, Rhys, ‘Religion and Authority: Problems of the Anglican Establishment in Virginia in the Era of the Great Awakening and the Parsons' Cause,’ William and Mary Quarterly 3d ser. xxx (1973) 3–36CrossRefGoogle Scholar; Isaac, Rhys, ‘Evangelical Revolt: The Nature of the Baptists' Challenge to the Traditional Order in Virginia, 1765-1775,’ William and Mary Quarterly 3d ser. xxxi (1974) 345–68CrossRefGoogle Scholar; Greene, Jack P., ‘Society, Ideology, and Politics: An Analysis of the Political Culture of Mid-Eighteenth Century Virginia,’in Jellison, Richard M., ed., Society, Freedom, and Conscience: The American Revolution in Virginia, Massachusetts, and New York (New York, 1976) 14–76Google Scholar; Breen, T. H., ‘Horses and Gentlemen: The Cultural Significance of Gambling among the Gentry of Virginia,’ William and Mary Quarterly 3d ser. xxxiv (1977) 239–57CrossRefGoogle Scholar; Beeman, Richard, ‘Social Change and Cultural Conflict in Virginia: Lunenburg County, 1746-1774,’ William and Mary Quarterly 3d ser. xxxv (1978) 455–76CrossRefGoogle Scholar; Roeber, A. G., ‘Authority, Law and Custom: Rituals of Court Day in Tidewater Virginia, 1720-50,’ William and Mary Quarterly 3d ser. xxxvii (1980) 29–52CrossRefGoogle Scholar; Beeman, Richard R. and Isaac, Rhys, ‘Cultural Conflict and Social Change in the Revolutionary South: Lunenburg County, Virginia,’ Journal of Southern History xlvi (1980) 524–50Google Scholar; Roeber, A. G., Faithful Magistrates and Republican Lawyers; Creators of Virginia Legal Culture, 1680-1810 (Chapel Hill, 1981Google Scholar); Smith, Daniel Blake, Inside the Great House; Planter Family Life in Eighteenth Century Chesapeake Society (Ithaca, 1980Google Scholar). Valuable overall accounts remain Sydnor, Charles, Gentlemen Freeholders: Political Practices in Washington's Virginia (Chapel Hill, 1952Google Scholar) and Robert, E. and Brown, B. Katherine, Virginia 1705-1786: Democracy or Aristocracy? (East Lansing, 1964Google Scholar). The most recent analysis of Virginia society is Rhys Isaac, The Transformation of Virginia 1740-1790 (1982).

97. See the suggestive essay by Rutman, Darrett B., ‘The Social Web: A Prospectus for the Study of the Early American Community,’ in O'Neill, William L., ed., Insights and Parallels: Problems and Issues of American Social History (Minneapolis, 1973) 57–89Google Scholar. For the increase of incorporated towns after the revolution, see Shepard, E. Lee, ‘Courts in Conflict: Town-Country Relations in Post-Revolutionary Virginia,’ Virginia Magazine of History and Biography lxxxv (1977) 184–99Google Scholar.

98. See Smith, Daniel Blake, Inside the Great House: Planter Family Life in Eighteenth Century Cheasepeake Society (Ithaca, 1980Google Scholar), for examination of family life in planter households. See also the suggestive article by Wyatt-Brown, Bertram, ‘The Ideal Typology and Ante-bellum Southern History: A Testing of a New Approach,’ Societas, v (1975) 1–29Google Scholar, and the author's discussion in his book, supra note 43, (1982) 117-324. Analysis of kin networks of those in more modest circumstances in Virginia society remains to be done.

99. See Sydnor, supra note 96, 74-85, for discussion of the multiple roles of the county oligarchies who dominated the local vestry, militia and courts. See also Isaac, The Transformation of Virginia, supra note 96, 88-94 and 115-38.

100. See Main, Jackson T., The Social Structure of Revolutionary America (Princeton, 1965) 45-7, 65-6, 183–85CrossRefGoogle Scholar; Sutton, Robert, ‘Sectionalism and Social Structure,” Virginia Magazine of History and Biography lxxx (1972) 70–84Google Scholar; Mitchell, Robert D., Commercialism and Frontier; Perspectives on the Early Shenandoah Valley (Charlottesville, 1977) 93–132Google Scholar; Harrison, Fairfax, ‘When the Convicts Came; A Chapter from Landmarks of Old Prince William,’ Virginia Magazine of History and Biography xxx (1922) 250–60Google Scholar; Robert McColley, Slavery and Jeffersonian Virginia (1964); Isaac, Rhys, ‘Evangelical Revolt,’ William and Mary Quarterly 3d ser. xxxi (1974) 345–68CrossRefGoogle Scholar; Beeman, and Isaac, , ‘Cultural Conflict and Social Change … in Lunenburg County,’ Journal of Southern History xlvi (1980) 524–50Google Scholar.

101. See Wood, Gordon S., ‘Rhetoric and Reality in the American Revolution,’ William and Mary Quarterly 3d ser. xxiii (1966), 3–32CrossRefGoogle Scholar and more extensively, The Creation of the American Republic 1776-1787 (Chapel Hill, 1969) 46-90, 393–429Google Scholar; Greene, Jack P., ‘Society, Ideology and Politics: An Analysis of the Political Culture of Mid-Eighteenth Century Virginia,’ in Jellison, Richard M., ed., Society, Freedom and Conscience: the American Revolution in Virginia, Massachusetts and New York (New York, 1976) 65–75Google Scholar; Morgan, Edmund S., American Slavery American Freedom; the Ordeal of Colonial Virginia (New York, 1975) 363–86Google Scholar.

102. Carson, Jane, Colonial Virginians at Play (Williamsburg, 1965) 151–80Google Scholar; Breen, , ‘Horses and Gentlemen,’ William and Mary Quarterly 3d ser. xxxiv (1977) 239–57CrossRefGoogle Scholar. Historical scholarship on violence tends to fall on collective lawlessness related to major political concerns or on urban crime and riot in their relationship to the process of social and economic development. Brown, Richard Maxwell, Strain of Violence, Historical Studies of American Violence and Vigilantism (New York, 1975Google Scholar); Graham, Hugh and Gurr, Ted, eds., Violence in America (New York, 1969Google Scholar). Of countless essays that discuss violence as a character trait attributed to Southerners, ‘Southern Violence,’ by Sheldon Hackney in the latter volume, 505-527, is particularly interesting on individual violence. See also Bruce, Dickson D. Jr., Violence and Culture in the Antebellum South (Austin, 1979Google Scholar); Wyatt-Brown, Southern Honor, supra note 43, 366-401.

103. Sydnor, Charles S., ‘The Southerner and the Laws,’ Journal of Southern History, vi (1940) 3–23CrossRefGoogle Scholar. Dealing with the antebellum period, Sydnor stresses the Southerner's steady assumption that a relatively large number of his deeds could be and had to be performed outside the written law. Sydnor explains much of this in terms of the slaveowner's individual power over his slaves. See also Franklin, John Hope, The Militant South (Cambridge, 1956) 33–62Google Scholar. For comparison with South Carolina, see Hindus, Prison and Plantation supra note 78.

104. In 1783, one man reported that to travel 140 miles with the witnesses in order to testify against a man he suspected of stealing his horse would have doubled the amount of the loss and he preferred to let the matter go. Schoepf, J. D., Travels in the Confederation 2 vols. (Philadelphia, 1911) ii, 53Google Scholar. In 1788, Brissot wrote that he had heard more of crimes in Virginia than in the Northern states; he attributed criminal behavior to the large plantation, luxury and slavery. De Warville, J. P. Brissot, New Travels in the United States of America (Cambridge, Mass., 1964) 349Google Scholar.

105. On Massachusetts, see the recent scholarship of David Flaherty, ‘Crime and Social Control,’ supra note 35, 339-360; Nelson, William E., Dispute and Conflict Resolution in Plymouth County, Massachusetts, 1725-1825 (Chapel Hill, 1981Google Scholar); Konig, David Thomas, Law and Society in Puritan Massachusetts, Essex County, 1629-1692 (Chapel Hill, 1979Google Scholar); Allen, David Grayson, In English Ways, The Movement of Societies and the Transferal of English Local Law and Custom to Massachusetts Bay in the Seventeenth Century (Chapel Hill, 1981Google Scholar).

106. Daniel Blake Smith, supra note 98, 212-13, suggests this for the planter community. Evidence is lacking to demonstrate whether stronger or weaker kin connections existed among poorer families. Richard Beeman stresses the degree to which Baptists by the 1770s were turning to the meeting rather than to the court for settlement of secular disputes and disciplinary action. ‘Social Change and Cultural Conflict in Virginia: Lunenburg County, 1746 to 1774,’ William and Mary Quarterly 3d ser. xxxv (1978) 470Google Scholar. Whether such activity existed within the Anglican community at this time has not been investigated.

107. Smith, Daniel Blake, ‘Changing Patterns of Local Political Leadership: Justices of the Peace in Albemarle County,’ unpublished M.A. thesis, University of Virginia, 1973Google Scholar; Morgan, Gwenda, ‘The Hegemony of the Law; Richmond County 1692-1776,’unpublished dissertation, Johns Hopkins University, 1980, 79–100Google Scholar; Sydnor, Charles, American Revolutionaries in the Making, Political Practice in Washington's Virginia (New York, 1965) 74–85Google Scholar.

108. For perceptive analyses of the Virginia courthouse culture, see Isaac, Rhys, ‘Evangelical Revolt,’ William and Mary Quarterly 3d ser. xxxi (1974) 354–68Google Scholar; Isaac, Rhys, ‘Dramatizing the Ideology of Revolution: Popular Mobilization in Virginia, 1774-1776,” William and Mary Quarterly 3d ser., xxxiii (1976) 357–67CrossRefGoogle Scholar; Roeber, A. G., ‘Authority, Law and Custom,’ William and Mary Quarterly 3d ser. xxxvii (1980) 29–52CrossRefGoogle Scholar; Faithful Magistrates and Republican Lawyers 73-111; Robert Wheeler, ‘The County Court in Colonial Virginia,’ in Daniels, ed., Town and Country, 111-34; although it deals with Massachusetts, the important article by Hartog, Hendrik, ‘The Public Law of a County Court; Judicial Government in Eighteenth Century Massachusetts,’ American Journal of Legal History 20 (1976) 282–329CrossRefGoogle Scholar, is germane to the subject.

109. ‘Cultural Conflict and Social Change in the Revolutionary South: Lunenburg County, Virginia,’ Journal of Southern History xlvi (1980) 531–33Google Scholar; also Beeman, ‘Social Change and Cultural Conflict,’ supra note 100, 458-61, 464-66.

110. Hart, Freeman, The Valley of Virginia in the American Revolution 1763-1789 (Chapel Hill, 1942Google Scholar) gives no attention to the subject.

111. Sutton, Robert, ‘Sectionalism and Social Structure,’ Virginia Magazine of History and Biography lxxx (1972) 74Google Scholar; See the table of distribution of national groups in the Shenandoah Valley, 1775, in Mitchell, Robert D., Commercialism and Frontier; Perspectives on the Early Shenandoah Valley (Charlottesville, 1977) 43Google Scholar.

112. For conflicts occasioned by national prejudices, see Samuel Kercheval, History of the Valley of Virginia (2nd ed. 1850) 157-58.

113. For discussion of differences in community organization between early Lunenburg County and the more settled older counties, see Beeman, ‘Social Change and Cultural Conflict,'supra note 100, 455-61.

114. The number owning property worth less than £50 has been estimated at 9% for prerevolutionary Virginia. Main, Jackson Turner, The Social Structure of Revolutionary Virginia (Princeton, 1965) 72–73CrossRefGoogle Scholar.

115. Saunders, ‘Crime and Punishment,’ supra note 84, 42; Henry M. Ward and Harold E. Greer, Jr., Richmond during the Revolution, supra note 84.

116. The work of Gwenda Morgan provides evidence of this in the mid-eighteenth century for Richmond County. Local men and women were most likely to be spared trial, non-residents or newcomers most frequently to be punished; in all known cases, convict servants and ex-convicts were sent on for trial. ‘The Hegemony of the Law,’ supra note 107, 209.

117. The ritual process of stranger relations could be fruitfully examined in this connection. There is a substantial literature on strangers, the outgrowth from Georg Simmel's brief essay, ‘The Stranger,’ in Wolff, Kurt H., trans, and ed., The Sociology of Georg Simmel, (New York, 1950) 402–08Google Scholar. For a good overview, see Levine, Daniel, ‘Simmel at a Distance: On the History and Systematics of the Sociology of the Stranger,’ in Shack, William A and Skinner, Elliott P., eds., Strangers in African Societies (Berkeley, 1979) 21–36Google Scholar.

118. See Beeman's discussion of this process in one county, ‘Social Change and Cultural Conflict,’ supra note 100, 463 68.

119. See, E. P. Thompson, Whigs and Hunters, supra note 49; Hay, Douglas et al. , Albion's Fatal Tree: Crime and Society in Eighteenth Century England (New York, 1975Google Scholar); Beattie, John, ‘The Pattern of Crime in England, 1660-1800,’ Past and Present lxii (1974) 47–95CrossRefGoogle Scholar; Nicole Castan, ‘Summary Justice,’ and Zysberg, Andre, ‘Galley Rowers in the Mid-Eighteenth Century,’ in Foster, Robert and Ranum, Orest, eds., Deviants and the Abandoned in French Society; Selections from the Annales Economies, Societies, Civilizations, iv (Baltimore and London, 1978) 83-110, 111–56Google Scholar; Hufton, Olwen, The Poor of Eighteenth Century France (New York, 1874Google Scholar). See the critique of the latter by Langbein, John, ‘Albion's Fatal Flaws,’ Past and Present xlvii (1983) 96–120CrossRefGoogle Scholar.

120. On this transformation in Western culture, see Foucault, Michel, Discipline and Punish; The Birth of the Prison (New York, 1977Google Scholar).