Codification in Virginia: Conway Robinson, John Mercer Patton, and the Politics of Law Reform
Curtis, Christopher M., The Virginia Magazine of History and Biography
During the turbulent years of sectional tension surrounding the Mexican War, Virginians found themselves engaged in an effort to bring their traditional common-law system of jurisprudence into correspondence with their modern social practices. Against the backdrop of prominent national discussions over questions of slavery in the territories, the sale of slaves in the District of Columbia, and southern secession, they embarked on a comprehensive project of legal reform that consequently facilitated the democratic transformation of the commonwealth's juridical and political institutions. This project began with a simple attempt to make courtroom procedures less cumbersome but quickly expanded to include a substantial revision of the civil and criminal codes, as well as the establishment of a special appellate court to relieve notoriously back-logged dockets. Five years of legal reform culminated with the convening of a constitutional convention in October 1850, Virginia's second such assembly in less than two decades. Typically referred to as the Reform Convention, the constitution that resulted from this assembly replaced the archaic political structures of the Revolutionary-era commonwealth with those of a centralized state government specifically designed to administer all aspects of public interest, to arbitrate democratic principles, and to protect slavery. By 1852 the process of democratic reform was complete: Virginia's bar had adopted some modern techniques of procedure, the legislature had enrolled a comprehensive statutory code, and voters had ratified a constitution that implemented white-manhood suffrage and mandated a popular elected judiciary.
The Reform Convention itself, and the fundamental changes that were made by it in extending suffrage and representation, has often been identified as the seminal moment of democratic development in antebellum Virginia. In contrast, however, the significant episodes of law reform that preceded it have eluded much in the way of scholarly attention. Yet these legal changes demand attention in order to understand the intricate process by which Virginia's ruling class embraced democratic institutions while simultaneously entrenching their commitment to slavery. The codification process - the process of compiling, unifying, and publishing the legislative statutes - was particularly notable in this respect; it raised questions about several core political issues including the expansion of executive power, local taxation policies, the legal status of free blacks, and the nature of an independent judiciary. The legislative debates that emerged as part of the required process to enroll this new code revealed an effort to resolve many of these issues, but one that was often frustrated by the partisan politics of the period. The enrollment debates thus anticipated and even shaped many of the more familiar constitutional debates that took place during the Reform Convention the following year.1 This essay therefore examines the codification process in Virginia as a means to assess the influence and consequences of law reform on the politics of a slave state.
In February 1846, the Virginia legislature appointed two attorneys, Conway Robinson and John Mercer Patton, to undertake a project to revise the state's thirty-year-old civil code. Within a year, they had taken over a stalled project to reform the criminal code as well. Over the course of the next three years, Robinson and Patton examined every section of the old code and attempted to reconcile each of them with three decades of additional statutes, judicial decisions, and, when applicable, with similar reforms in other common-law jurisdictions. They submitted their recommendations to the legislature in a series of four reports that justified their proposed revisions by providing specific historical descriptions of existing (and often contradictory) statutes and judicial decisions that pertained to each section. These reports also included prefatory statements that summarized their contents, reported on the status of the project, and raised larger questions about Virginia's laws and legal institutions. …