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111 Judge St. George Tucker had just left the bench late in the evening of September 3, 1791, when he scrawled a short message to attorney Charles Lee in the flickering candlelight. “In a cooler moment,” he wrote, “it is not improbable you may be convinced that in my official conduct I have neither deserved the Imputation of partiality, nor of blood-thirstyness—if so,” he continued, “I have a right to expect from your candor, an acknowledgement that those expressions which you this Evening made use of at the bar, and which in my interpretation of them may have a tendency to fix that stigma on my character, were either unmerited, or unintended.” The previous hours had been heated. Judge Tucker was on circuit presiding over the state district court in Winchester, Virginia, and had just received a jury verdict in a controversial murder case. Lee, who was a member of the elite group of attorneys admitted to practice in Virginia’s state courts, was representing defendant John Crane. Crane’s jury had deliberated for almost forty hours before finally rendering a compromise “special” verdict that declined to reach a legal conclusion and instead gave a long account of the facts of the fight in which Crane had killed another man. The verdict then left the question of what those facts meant legally—whether Crane was guilty of murder or manslaughter—up to Judge Tucker. “Upon the whole matter the jury pray the advice of the court,” the verdict explained. “If the court should be of opinion that the prisoner is guilty of murder, then we of the jury do find the prisoner is guilty of murder; and if the court shall be of opinion that the prisoner is not guilty of murder, but guilty of manslaughter, then we the jury do find the prisoner not guilty of murder, but guilty of manslaughter.” That verdict had truly left Crane’s fate hanging in the balance: a manslaughter conviction could qualify him for the benefit of clergy, but a murder conviction would mean death. Guarding Republican Liberty St. George Tucker and Judging in Federal Virginia Jessica K. Lowe 112 Jessica K. Lowe Judge Tucker was probably predisposed to be frustrated. Tucker disliked special verdicts, which, he wrote, gave judges “an influence in questions of fact which may become highly pernicious.” And he was not without reason . As legal historian John Langbein has noted with respect to the English context, “The effect [of special verdicts] was that the court preempted much of the jury’s normal adjudicatory function.” Nonetheless, these verdicts were, Tucker complained, the “practice, constantly, in difficult cases” in Virginia. During the trial, Tucker had tried to stay unentangled from the jury’s decision—he had even declined to instruct the jury on the witnesses ’ testimony, instead allowing the jurors to reach their own conclusions . But thanks to the special verdict, the case’s key question was now in his lap. Because the court would make its decision based on the special verdict’s rendition of the facts, the verdict’s contents were critical. Lee thought that the verdict omitted proven facts that worked in favor of his client—he suspected , he told Tucker, because the jury did not realize that these facts were material. He requested that Tucker allow him to point these omissions out to the jury and ask them to modify their findings. Tucker at first reluctantly agreed, but as he listened to Lee’s arguments, the judge had second thoughts. He interrupted Lee, who responded harshly, telling Tucker that if he was so satisfied that the verdict was just, then “judgment of death might be pronounced.” The meaning of Lee’s hyperbole was evident: the jury had, after all, left the legal consequences of the special verdict to the court and, Lee insinuated, Tucker’s mind was already made up. Perhaps shaken by Lee’s rebuke, Tucker eventually declined to render a decision. He instead allowed Crane to take the case up to Virginia’s General Court, which determined that Crane was guilty of murder and sent the case back to the district court, where a different bench ordered Crane’s execution . But Lee’s words stuck with Tucker. His feelings, the judge told Lee, had “not been violated in an equal degree for many years.” Why was Tucker so upset by his confrontation with Lee? Until recently, the context of the letters between Lee and Tucker was unknown; as a result , the disembodied nature...

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