St. George Tucker's law papers.

• Author: Hobson, Charles F.
• Position: Virginia - The Legacy of St. George Tucker

St. George Tucker led a productive life in law that began on his native island of Bermuda before the American Revolution and came to a close more than five decades later in his adopted state of Virginia. (1) After an unhappy experience reading law with his uncle, Bermuda's attorney general, Tucker eventually made his way to Williamsburg, Virginia, in 1772 and entered The College of William and Mary, where for six months he took general academic courses in the schools of natural and moral philosophy. (2) He then left the college and resumed the study of law with George Wythe, a practitioner and teacher of great reputation in the colony. (3) Tucker gained admission to the bar of the county courts in 1774 and of the General Court in 1775, but the American War of Independence effectively postponed his law career for seven years. (4) After the war, he commenced practicing in the county courts in the Petersburg vicinity and by the mid-1780s was attending the commonwealth's superior courts in Richmond. (5) At this time he rapidly acquired a "considerable reputation, respected by all the court and bar," (6) which led to his election in 1788 as a judge of the General Court. (7) Tucker's judicial appointment coincided with a major reorganization of the commonwealth's courts, which, among other changes, divided the General Court's jurisdiction among eighteen (later nineteen) district courts dispersed throughout the commonwealth. (8) From 1789 to 1803 Tucker attended the spring and fall terms of the district courts and also the twice yearly sessions of the General Court, at which the district judges sat en banc to consider certain cases. In 1804, he was promoted to the Virginia Court of Appeals, where he sat for seven years before resigning in 1811. (9) After a brief retirement from law, Tucker accepted President Madison's appointment as judge of the U.S. District Court in 1813, in which capacity he also sat with Chief Justice John Marshall on the U.S. Circuit Court for Virginia (10) He tendered his resignation as a federal judge in 1825, two years before his death. (11)

The years from 1789 to 1803 were the most active and prolific of Tucker's law career. In addition to holding court regularly in distant parts of the commonwealth, Tucker had a leading part on a commission to complete the revisal of its laws (a project begun a decade earlier under Thomas Jefferson's direction), which resulted in the publication of the commonwealth's first code in 1794. (12) In the spring of 1790, he succeeded George Wythe as Professor of Law and Police at The College of William and Mary. (13) During intervals between court terms, Tucker conducted his law course, which he organized around William Blackstone's Commentaries on the Laws of England. (14) In his lectures, Professor Tucker took great care to point out the departures from English law that had taken place in Virginia and the United States, making it necessary to modify if not discard Blackstone at many points. (15) He eventually incorporated the substance of his lectures in a series of notes and appendices to his own edition of Blackstone, published in 1803 as Blackstone's Commentaries: With Notes of Reference, to the Constitution and Laws, of the Federal Government of the United States; and of the Commonwealth of Virginia. Each of the five volumes of this edition had appendices "containing short tracts upon such subjects as appeared necessary to form a connected view of the laws of Virginia as a member of the federal union." (16) Tucker's Blackstone soon became the leading American law text of the day, enjoying wide circulation in Virginia and throughout the nation. His work was not only the first major treatise on American law but also the first commentary on the U.S. Constitution indeed, it stood unsurpassed in these respects until the appearance of the great works of James Kent and Joseph Story in the 1820s and 1830s. Although it has long since ceased to be an essential text for aspiring law practitioners, Tucker's Blackstone continues to be held in the highest regard by legal and constitutional historians as an indispensable source for understanding American law and the Constitution in their formative era. The work has an abiding value and continues to be reprinted, most recently in 1996. (17)

Tucker's renown in American law rests on the secure foundation of his edition of Blackstone. This Essay considers a less familiar but scarcely less imposing literary monument Tucker bequeathed to posterity: the vast corpus of law papers he generated as a working lawyer and judge from the 1780s to the 1820s. Tucker operated at every level of Virginia's court system, from county court lawyer to judge of the Court of Appeals, and spent the last dozen years of his career as a federal judge. His legal manuscripts include notes of arguments, opinions, correspondence, memoranda, pleadings, dockets, and numerous other papers relating to the cases he argued and heard in the various courts. The bulk of these papers survived the vicissitudes of time to find a permanent resting place as part of the magnificent Tucker-Coleman Papers in the Special Collections of the Earl Gregg Swem Library at The College of William and Mary.

1. TUCKER'S MANUSCRIPT CASE REPORTS

   The heart of Tucker's law papers consists of three bound manuscript volumes of case reports, which he entitled Notes of Certain Cases in the General Court, District Courts, and Court of Appeals in Virginia, from the Year 1786 to 1811. (18) In his "introduction" Tucker wrote: "These notes being many of them taken in Court have no other pretensions to accuracy, than so far as they contain my own opinion as delivered in the various Cases that have occurred in the Courts of which I was a Judge." (19) He went on to observe that he took his notes in small notebooks of about "half a Quire of paper." (20) Tucker's notes eventually filled thirty-three notebooks totaling some sixteen hundred pages. He had them bound together in volumes, he said, in order to preserve them for his own use and that of his family. (21) These three volumes contain reports of nearly eleven hundred cases. About six hundred of these were cases in the General Court and district courts heard between October 1786 and November 1803. Tucker recorded these reports in the first nine notebooks, and a part of the tenth, which compose most of the first volume. From the spring of 1804 until his resignation in April 1811, Tucker reported about five hundred cases in the Court of Appeals. These reports fill twenty-four notebooks that compose the second and third volumes.

   The manuscript volumes had a use and circulation beyond Tucker and his immediate family, which included sons Henry St. George and Nathaniel Beverley, both of whom achieved prominence as lawyers and professors of law. Most notably, Daniel Call, the reporter of six volumes of Virginia cases, borrowed Tucker's notes in 1825 for the purpose of filling in the gaps of unreported Court of Appeals cases since that court's inception. The manuscript served as the principal source for the cases reported in Call's fourth, fifth, and sixth volumes, published in 1833. (22) As a lawyer, Call cited Tucker's reports in cases he argued years before he used them for his own reporting project. Two criminal cases heard in the General Court, one in 1786 and the other in 1798, were reproduced directly from Tucker's notes, without attribution, in the first volume of Virginia Cases, published in 1815. (23) As late as 1869, a lawyer arguing in Virginia's Supreme Court cited the source of a case report as "1 Tuck. (manuscript) Notes of Cases 23." (24) The same lawyer cited "1 Tuck. MSS. 388" in an article in the American Law Review. (25)

   At some time in the nineteenth century, the volumes passed out of the Tucker family, only to be returned in 1880. An inscription on the flyleaf of the first volume reads: "Bequeathed by the late William Green to his brother James W. Green and by him presented to the Hon. J. Randolph Tucker. Oct. 21st 1880." (26) William Green was the lawyer who cited Tucker's manuscript reports. Son of a judge on the Virginia Court of Appeals, Green achieved renown as an appellate advocate and author of scholarly legal articles. (27) The annotations scattered throughout the Tucker volumes have been identified as being in Green's distinctive hand. (28) How long the volumes were in Green's possession before his death is not known. They were given to Green by Judge William T. Joynes, (29) who served on the Virginia Supreme Court from 1866 to 1873. How and when Joynes obtained the volumes is a mystery that has not been solved. After their return to the Tucker family in 1880, the volumes evidently passed from one branch to another before they were donated to The College of William and Mary in 1938 by Mr. and Mrs. George P. Coleman. George P. Coleman was a descendant of Nathaniel Beverley Tucker, and J. Randolph Tucker was a son of Henry St. George Tucker.

   For years, Tucker's volumes lay dormant in the Earl Gregg Swem Library, uncatalogued and virtually unknown to researchers. Not until the late 1960s were they, in effect, rediscovered, thanks to the probing investigations of a young graduate student, Charles T. Cullen, who was then writing a dissertation on Tucker. (30) From his research, Cullen knew that Tucker had compiled case reports and that they had been bound together in manuscript volumes. His efforts to uncover them, including repeated inquiries to the Special Collections staff, only brought frustration. He even went to Lexington, Virginia, on the likely supposition that J. Randolph Tucker, a law professor at Washington and Lee, had given them to the university. Finally, back at Swem Library, staff member Margaret Cook asked Cullen to look at some dusty volumes she had come across among the uncatalogued papers. Cullen immediately recognized them and experienced the rare and sublime pleasure of knowing that a...