A Judge's School

number 28 — spring 2021 A Judge’s School The Story of John White Brockenbrough By M. W. Paxton Jr. Delivered to the Fortnightly, October 17, 1970 ohn White Brockenbrough, who played a piv- Brockenbrough’s writings are available to the would-be otal role in the history of Washington and Lee biographer. The story of his life must be pieced togeth- J University, used the English language eloquent- er painstakingly from such sources as newspaper files, ly. This eloquence led him into politics; it led him into minute books, legal documents and the correspondence teaching; it stood him in good stead when he was en- of his contemporaries. trusted with the responsibility for inviting General R. E. A few of his letters and speeches have survived, Lee to become president of Washington College. enough to give us glimpses of a man who was metic- His success in persuading Lee to come to Lexing- ulous, self effacing, courteous, sensitive, fervent — and ton would alone have assured him a place of honor in a man also subject to depression, and a poor business the history of the college here. But he also looms large manager. in its history for two other reasons: He was founder of John White Brockenbrough was born Decem- the school that became the School of Law of Washington ber 23, 1806, in Hanover County. His father, William, and Lee. And he was the first man to hold the office of was, successively, a circuit court judge, president of the rector of the college’s board of trustees. state general court, and justice of the Virginia Court of Had John White Brockenbrough left an extensive Appeals.1 collection of personal papers, historians would have seized upon them with delight. Mr. Paxton was the editor and publisher of the Lexington News- Unfortunately, however, the Brockenbroughs were Gazette from 1952 to 1994. A 1949 graduate of Washington and Lee University, he also earned a graduate degree in journalism from not a family of paper preservers. Relatively few of Judge Columbia. He is a founder of Historic Lexington Foundation. 2 A Judge’s School The Story of John White Brockenbroug After studying at the Col- at least two occasions he publicly lege of William and Mary, young defended the institute in its initial Brockenbrough matriculated at struggling years. the University of Virginia on the After Francis H. Smith, the first day it opened, in 1825.2 He superintendent, arranged in 1843 then studied law at Judge Hen- to have the institute provide the ca- ry St. George Tucker’s private law dets’ uniforms, certain local mer- school in Winchester, returning to chants had an indictment brought Hanover County, where he became against him for selling goods with- commonwealth’s attorney. His in- out a license. Brockenbrough and terest in scholarship led to his pub- another prominent Lexington lishing a two-volume work, known lawyer, General C. P. Dorman, as as the roccenbrough Reports, on counsel for the superintendent, Chief Justice John Marshall’s deci- successfully moved to have the sions in the U.S. Circuit Court at proceedings quashed. Richmond.3 John hite roccenbrough, c. 1870. Several years later, in 1849, Photo by Michael Miley; courtesy oo About 1834 he moved to ashington and Lee University Library a move was initiated in the state Rockbridge County and soon mar- Special Collections. legislature to investigate the possi- ried Mary Calwell Bowyer, daugh- bility of moving the institute to an- ter of Colonel John Bowyer of Thorn Hill.4 Colonel other location, an action prompted in part by evidence Bowyer, himself a lawyer, lived in style and was owner of of hostility toward VMI in the town and at neighboring a coach-and-four, a rarity in these parts.5 Washington College. A meeting was called at the court Brockenbrough established a law practice and be- house to rally public sentiment behind retention of the came active in the leadership of the Democratic Party. school. The speakers on that occasion were John White It was an endeavor in which his rival, John Letcher, en- Brockenbrough and former Congressman Samuel Mc- joyed considerably greater success. Dowell Moore.8 By 1841 he was co-publisher, with Samuel Gil- After the election of Democrat James K. Polk as lock, of the local Democratic newspaper, the Valley Star, president in 1844, Brockenbrough actively sought the which existed from 1839 to 1862.6 federal judgeship for the Western District of Virginia, He early became a which became vacant in 1845. In spite of the covert op- staunch friend of the Vir- position of John Letcher, Brockenbrough won the ap- ginia Military Institute and pointment in 1846.9 in 1843 Brocken brough On learning of his nomination for the judgeship, was named to the VMI the local Whig organ, Te Lexington Gazette, on January board of visitors, on which 8, 1846, paid Brockenbrough an unusual tribute. It stat- he served until 1846.7 On ed, in part: Opposed as we are, in politics, to Judge Brocken- brough, it has given us real pleasure on various occasions to pay a public tribute to the distin- guished ability and unvarying courtesy which illiam roccenbrough, J. roccenbrough’s oather. have characterized his practice as an advocate Courtesy Encyclopedia Virginia. at our bar, as well as his upright and gentleman- A Judge’s School The Story of John White Brockenbroug 3 ly demeanor in all relations of private life. Dia- John . Davis, ashington metrically opposed as we are to Mr. Polk and his and Lee graduate and 1924 Democratic party candidate party, we are ever willing to acknowledge and oor president, delivered commend such good acts as they may perform, &L’s first Tuccer Law and in the small number of these must be men- Lecture. Photo courtesy oo tioned the nomination of our townsman to the the Library oo Congress. judgeship.10 The announcement he Valley Star, on July 26, 1849, carried Judge in the Valley Star stated Brockenbrough’s announcement of his plans to that the law school would open a private law school in Lexington.11 open on the 29th of Octo- T ber and the session would A hundred years later, in 1949, John W. Davis, in delivering the inaugural Tucker Law Lectures at Wash- end March 16. Tuition ington and Lee, observed that Judge Brockenbrough’s was to be $60 per session docket was a far cry from that of the modern-day judge, and classes were to be held in the Franklin Society hall as proved by the fact that “he ran his court and still found [on Nelson Street]. Two classes, junior and senior, would time for teaching.” Equally pertinent are the observations be offered, and students could enroll in both simultane- that the judge’s salary was far from that paid to federal ously without additional tuition charge. judges today and at the time when Judge Brockenbrough In that day, although many students attended col- was planning to open his law school, his family included lege before beginning the study of law, they could enter six children.12 law school with no more preparation than those starting college. Thus the judge stated that “the hours of the daily lectures to his students will be so arranged . as to en- able any member of either class to attend the lectures of any of the professors of Washington College.” TheValley Star reported on November 8 that “Judge Brockenbrough’s Law School has opened well and his class are delighted with him as a gentleman and as an instructor. He now has eight in attendance and there is an absolute certainty that several other students will be in, in a few days. His introductory lecture was listened to, by a large number of our citizens. We venture the assertion that the school . will be one of the most pop- ular in the Southern Country.” 13 The judge acquiesced in the request of his students that his inaugural address be printed in pamphlet form and in the newspaper. It occupied three full columns in the Star of November 22.14 In a characteristic passage he declared: “I will confess . that there have been moments when I have shrunk back appalled by the magnitude of the task I have undertaken. But these gloomy forebodings are no 4 A Judge’s School The Story of John White Brockenbroug Note the magnitude oo in Virginia at present, or with a single exception, at any Judge roccenbrough’s 17 opening remarcs former time.” Describing a trip to Lexington at the time, the Dis- longer indulged. The hid- patch writer observed that “the grand crusade of Virginia eous phantom of grim Improvement seems to have left Lexington out of sight. despair, which sometimes . But deprived of its just share of material advantages, came athwart my mental it has taken good care of itself in matters of intellectual vision to dash my cher- improvement. With the exception of the University [in ished hopes, has been Charlottesville], no place in Virginia can surpass Lex- driven back to its dark ington in the variety of its educational advantages.” cavern, and I enter today The writer lamented that Lexington was “impris- upon my new career with oned among the mountains with no outlet to the busy a cheerful spirit . inspired by an enthusiastic love of world, except for a most execrable turnpike leading from the profession we have adopted, and a resolution to tri- a point on the Central Railroad called Goshen, distant umph over every difficulty which may beset my path.” 20 miles; and the ruins of the Staunton and Buchanan While expressing admiration for genius, the judge plank road, which, after a few years’ service became a urged upon his pupils the necessity for hard work.

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