Virginia Law and the New Order, 1776-1830
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W&M ScholarWorks Dissertations, Theses, and Masters Projects Theses, Dissertations, & Master Projects 1988 Republican jurisprudence: Virginia law and the new order, 1776-1830 John Thomas Wren College of William & Mary - Arts & Sciences Follow this and additional works at: https://scholarworks.wm.edu/etd Part of the United States History Commons Recommended Citation Wren, John Thomas, "Republican jurisprudence: Virginia law and the new order, 1776-1830" (1988). Dissertations, Theses, and Masters Projects. Paper 1539623779. https://dx.doi.org/doi:10.21220/s2-bvq4-6c48 This Dissertation is brought to you for free and open access by the Theses, Dissertations, & Master Projects at W&M ScholarWorks. It has been accepted for inclusion in Dissertations, Theses, and Masters Projects by an authorized administrator of W&M ScholarWorks. For more information, please contact [email protected]. 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ReproducedReproduced with with permission permission of the of copyright the copyright owner. owner.Further reproductionFurther reproduction prohibited without prohibited permission. without permission. Order Number 8916119 Republican jurisprudence: Virginia law and the new order, 1776-1830 Wren, John Thomas, Ph.D. The College of William and Mary, 1988 Copyright ©1989 by Wren, John Thomas. All rights reserved. UMI 300 N. Zeeb Rd. Ann Arbor, MI 48106 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. --------------. ----------------· ----------------------------- ReproducedReproduced with with permission permission of the of copyright the copyright owner. owner.Further reproductionFurther reproduction prohibited without prohibited permission. without permission. REPUBLICAN JURISPRUDENCE: VIRGINIA LAW AND THE NEW ORDER, 1776-1830 A Dissertation Presented to The Faculty of the Department of History The College of William and Mary in Virginia In Partial Fulfillment Of the Requirements for the Degree of Doctor of Philosophy by John Thomas Wren 1988 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. APPROVAL SHEET This dissertation is submitted in partial fulfillment of the requirements for the degree of Doctor of Philosophy 'rylAsK- l/Jy John Thomas Wren Approved, December 1988 Thad Tate E. :lby James P. Whittenburg James L. Axtell W. Hamilton Bryson University of Richmond ii Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. For Suzanne — as always iii Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. TABLE OF CONTENTS Page ACKNOWLEDGMENTS......................................... ABSTRACT................................................ vi CHAPTER I. INTRODUCTION: REPUBLICANISM, THE COURTS, AND THE REVOLUTIONARY SETTLEMENT. „ ........................... 2 CHAPTER II. ESTABLISHING A CONSTITUTIONAL ORDER . 18 CHAPTER III. THE ENGLISH LEGAL HERITAGE IN A REPUBLICAN COMMONWEALTH ................ 63 CHAPTER IV. REPUBLICAN PRINCIPLES IN ACTION ......... 102 CHAPTER V. POLICYMAKING IN A REPUBLICAN COMMONWEALTH............................. 157 CHAPTER VI. A REPUBLICAN COMMONWEALTH IN A FEDERAL REPUBLIC......................... 217 CHAPTER VII. EPILOGUE: THE OLD ORDER AND THE N E W ................ 241 APPENDIX A ............................................. 262 APPENDIX B ............................................. 263 BIBLIOGRAPHY........................................... 264 VITA................................................... .273 iv Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. ACKNOWLEDGEMENTS The author wishes to express his appreciation to Professor Thad Tate for his support and guidance— and faith in the author— during the preparation of this dissertation. Professor John Selby added valid criticisms, and was instrumental in the completion of the project. Professors James P. Whittenburg and James L. Axtell provided much- needed comments and criticisms. Professor W. Hamilton Bryson supplied expertise on legal issues, and a welcome sense of comraderie during my sojourn at the University of Richmond School of Law. A special note of appreciation is due Professor Robert C. Palmer, who inspired this study and continues to inform it. The staff at the law library at the University of Richmond provided me with unparalleled professional support and personal friendship. It is no overstatement to assert that this disser tation would not have been possible without Mary Wells Ricks— editor, transcriber, typist, "ideal reader," and sister-in-law extraordinaire. It would have been entirely possible without Jack, but I love him just the same, and will treasure my months of being "Mr. Mom" while this work was in progress. To my wife Suzanne I owe the most. She sustained me with emotional, spiritual, and economic support and is what makes it all worthwhile. v Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. ABSTRACT The purpose of this study is to utilize the insights provided by the decisions of the Virginia Court of Appeals during the years 1776-1830 to gain a fuller tinderstanding of the concept of "republicanism" through an analysis of its application in courts of law. It is clear that in the years after the Revolution, the Virginia Court of Appeals made a striking statement about the nature of that Revolution in Virginia. It defined a new constitutional order by elevating the Virginia constitution to the plane of higher law, and by articulating and implementing the doctrine of popular sovereignty. The court made workable such previously theoretical constructs as the separation of powers, and adapted the English legal heritage to republican dictates and the demands of a new society. It was also instrumental in applying new republican conceptions to specific areas of the law. In so doing, the court displayed a clear deference to the policy initiatives of the legislative branch. While applying republican principles, the Virginia court added a decidedly conservative gloss, favoring stable rules of law and the protection of existing property rights at every opportunity, in the process supporting the existing political order. At the same time, the Virginia Court of Appeals was in the forefront of a localistic response to the challenges posed by the establishment of a new federal government. Taken together, these conclusions suggest that Virginia retained in large part a conservative, localistic strain of republicanism well into the nineteenth century, while its judiciary remained essentially incrementalist in its policy-making approach. vi Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. REPUBLICAN JURISPRUDENCE: VIRGINIA LAW AND THE NEW ORDER, 1776-1830 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. CHAPTER I INTRODUCTION: REPUBLICANISM, THE COURTS, AND THE REVOLUTIONARY SETTLEMENT The doctrine of "republicanism" has long been central to American life. It served as a theoretical justification for the Revolution, imbued the institutions of the new nation, and has functioned as the basis for American political thought from that day to this. Considering the fundamentality of republicanism to the American experience, it is remarkable how little the doctrine is actually tinder stood. Despite continual efforts to explicate the nuances of republican theory, the end result has been more to muddle than to enlighten. Scholars have long been interested in the intellectual aspects of early American republicanism; in particular, analyzing {and arguing about) what the term