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

Abstract

The politics of war severely divided the Virginia Southside during the American Revolution. Laborers, ship pilots and other landless men and women bitterly resented the efforts of the patriot gentry to stop trade with Great Britain and to establish a military force. Planters feared that the presence of the British Navy would encourage slaves to flee or attack their masters. What role did law play in the patriot response to these conditions? This essay uses the case of Josiah Philips, who led a banditti residing in the Great Dismal Swamp, to show how law intersected with class and race in patriot thinking. The gentry's view of the landless as dependent and lacking in self-control and its view of black slaves as posing a constant threat of violence supported the application of special legal regimes suited to these dangers. In particular, Philips was “attainted” by the General Assembly, a summary legislative legal proceeding traditionally employed against offenders who threatened government itself. While the attainder was uncontroversial when it passed, the significance of the Assembly's intervention changed over time. By the late 1780s, some among the state's legal elite regarded the Assembly as having unnecessarily interfered in the ordinary course of justice, which they were then seeking to reform. This opened the way to recharacterize the Assembly's extraordinary legal jurisdiction as an arbitrary exercise of lawmaking power.