Difference between revisions of "Memoir of the Author"

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In editing the second edition of George Wythe's cases and decisions (1852), Benjamin Blake Minor included a "Memoir of the Author," writing in the Preface that it 'seemed highly appropriate to accompany the reports'^[1]

Chapter text

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MEMOIR OF THE AUTHOR.

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Conspicuous personages, who, like Wythe, make the History of their Times, may properly stand forth from the canvass of History, in all their individuality,—their portraiture being only the bolder for being the less minute. Yet Biography differs from History essentially in this;—that in the former details may be given, and personal traits and features displayed, that would be lost in the generalizations of the latter.

The little, however, that has been recorded of the long and useful life of Mr. Wythe, partakes more of eulogy than biography. The following is believed to contain the most that is now known of his history.

George Wythe was born in the County of Elizabeth City, Virginia, in 1726. His mother was one of five daughters of Mr. Keith, a Quaker gentleman of good fortune and education, and author of a work on mathematical and other subjects, who migrated from Great Britain to the town of Hampton, in 1690: his father owned a good estate on Back River, and died intestate, survived by his wife and three children. The elder brother being the heir at law, it is said that his mother's moderate circumstances induced her to undertake George's education herself; an office which, though her natural and acquired qualifications well fitted her for it, was, as is usual in such cases, but imperfectly discharged. She, however, besides English, taught him the rudiments of Latin; and also aided him in those of Greek; for though she did not understand it herself, yet having learned the alphabet, she, by a close collation of the English version with the Greek Testament, assisted him in the translation. As she must have had sufficient means from her dower, and the aid of her elder son, to send George to school, it is probable that her parental anxiety, or the want of a conve-

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nient school, was the true cause that kept him at home ; and though his literary advantages were thus limited, she no doubt implanted in his character the seeds of that strength and uprightness which are said to have marked her own.

With this limited scholastic education, he was sent to study law with his uncle-in-Iaw, Mr. Dewey, a lawyer of distinction in the County of Prince George. Here not much pains was bestowed upon him ; his time was chiefly devoted to what is termed the drudgery of a lawyer's office. He apparently made very little progress in his legal studies. Yet it might be very fallacious to infer that that drudgery had no connection with or influence upon his future success. The profession of law requires labors and sacrifices of its votaries ; and some who have been, at the outset, drudges, have by the very patience, perseverance, accuracy and closeness of observation which so called drudgery necessarily engenders and inculcates, become its greatest luminaries.

But the labors and toils of the student may be lightened by the attention and judicious encouragement of the preceptor; and no doubt Mr. Wythe profited by his own experience under Mr. Dewey, when in after years he so zealously devoted himself to the guidance and instruction of candidates for the bar. After his return home, in about two years, he gave himself assiduously to self-improvement; and without assistance made considerable progress not only in Law, but in Latin and Greek Literature, and in the liberal sciences.

His mother died before he attained his majority. Her death and that of his brother put him in possession of the means of self-indulgence, and he now gave himself up to a long career of pleasure and dissipation. Ii can not be supposed, however, that his studies were entirely suspended by his unfortunate habits ; for such thirst of knowledge as he had imbibed could not have been slaked by the intoxicating drafts of pleasure, and must still have been indulged in the intervals of dissipation. He must, too, from his position, connexions and circumstances have enjoyed all the advantages of the society for which

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lower Virginia was then, as now, distinguished ; and may even, have caught some aspirations after better things from the men with whom he may have met and mingled in the old metropolis of Williamsburg. These suppositions are confirmed by the history of too many of the gifted young sons of Virginia : misguided indeed like Wythe, and whilst moving in the best society, prostituting both genius and learning to dissipation and extravagance; but unfortunately not endowed with his selfcontrol, nor like him recalled to the paths of usefulness and honor. In Wythe's reckless course of ten years, there does not appear to have been any great depravity of conduct. Having the means to " live like a gentleman" he felt no incentive to exertion. But at the age of thirty, by his own strength of will and better purpose, he broke the chains which evil habits might have bound indissolubly around him, and entirely reformed his whole life. The particular causes of this change are not stated : Whether love, the foreseen exhaustion of his resources, his own penitent reflections, or the influence of interested friends ; or several of them combined. He appears now to have resumed the study of the Law, under a Mr. Lewis, whose daughter he married. Lord Tenderden, we think, has observed that poverty has been the greatest friend of the legal profes-ion. A prospective vision of its approach may have stimulated the exertions of Wythe. Rapid success after his admission to the bar, crowned his learning, industry and eloquence. But he never ceased to deplore the follies and imprudences of which he had been so Jong guilty; to regard the time allotted to them as irretrievably lost, and to warn the many young men who came under his influence to profit by his example.

The chancery bench of Virginia furnishes other examples of the strength of moral principle ; not only in the case of Mr. Wirt, whose friends placed him there with the hope of reforming him; but of another who has since adorned it and in whom years of integrity and morality have borne testimony to the principles that were strengthened by the temptations, which he by his own decision of character resisted in youth.

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Moral grandeur is the truest; and would that our great men not only possessed more of i t ; but based it upon the precepts and practice of the Christian faith. Mr. Jefferson speaks of the elevated philosophy of Mr. Wythe ; but, better still. Mr. Munford speaks, as we shall see, of his faith as a christian.

Wythe, then, it would appear, came to the bar in Williamsburg after the year 1756;* and the following facts shew the eminence to which he must have arisen in the short space of five years. In 1760, Jefferson entered William & Mary College, as a student; and in less than two years thereafter, through the influence of Dr. Small, was taken under the instruction of Mr. Wythe. Dr. Small was Professor first of Mathematics, and afterwards of Philosophy and Belles Lettres in William & Mary. How Mr. Jefferson regarded his interposition is shewn by himself. He says, "He (Dr. S.) returned to Europe in 1762, having previously filled up the measure of his goodness by procuring for me from his most intimate friend, George Wythe, a reception as a student of law under his direction, and introduced me to the acquaintance and familiar table of Gov. Fauquier, the ablest man who had ever filled that office. With him and at his table, Dr. Small and Mr. Wythe, his amid omnium horarum, and myself formed a partie quarree, and to the habitual conversations on these occasions, I owed much instruction. Mr. Wythe continued to be my faithful and beloved mentor in youth, and my most affectionate friend through life. In 1767, he led me into the practice of the law, at the bar of the General Court, at which 1 continued till the Revolution shut up the courts of justice."†

When Mr. Wythe first entered the House of Burgesses is not stated ; but he soon took there an honorable stand among men who were the master spirits of their times. From the commencement of the revolutionary spirit of the Colonies, he warm-

* The biographies of Wythe lead to the impression that he studied with Mr. Lewis, and came to the bar, after his reformation, and about the age of thirty, (i. e. about 1756 ;) but this is by no means certain.

† Memoir, Corres. &c, of Jefferson, Vol. I. p. 2.

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ly espoused their cause. Yet his independent course did not lose him the esteem of the royal Governors, for he was intimate with all but Dunmore; nor of the government party, for he was several times elected to the honorable office of clerk of the house, and also to the speaker's chair, with their support.

In 1764, (aged thirty-eight,) he drew up for a committee of the burgesses, of which he was a member, a remonstrance to the English House of Commons ; but it was too bold for the times, though only expressive of the principles which he was ready to avow and maintain. After some softening, it was adopted by the house. Still he was one of those who opposed as unseasonable and inexpedient the famous resolutions of Patrick Henry, concerning the stamp act, in May 1765. Henry's matchless, yea miraculous, eloquence carried them through ; but the next day, he having gone home, the fifth resolution,* that had been most opposed, and had been carried by only one vote, was expunged, in 1768, however, they had come up fully to Henry's ground. iVlr. Wythe was still a piominent member of the House of Burgesses, which now adopted resolutions asserting in determined language their exclusive right to tax the Colonies ; and complaining of the violation of the British Constitution by Parliament and of the oppression of trying in England persons charged with having committed offences here. Governor Botetourt endeavoured in vain to procure a copy of these resolutions from the Clerk, Mr. Wythe, and in hope of preventing the completion of their passage dissolved the assembly ; but they had anticipated him and already spread them upon the records of their body. The next year, (1769,) the people triumphantly sustained their representatives and returned them to the Assembly. Jefferson had then entered the House as a member : and now preceptor and pupil stood side by side in defence of the rights and liberties of the Colonies. Mr. Jefferson pre-

* It was as follows: "That the general assembly of this colony have the sole right and power to lay taxes and impositions upon the inhabitants of this colony; and that every attempt to vest such power in any person, or persons whatsoever, other than the general assembly aforesaid, has a manifest tendency to destroy British as well as American freedom." Wirt's Life of Henry, p. 57.

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pared a draft of instructions to be given to the delegates, who should be sent to the Congress he meant to propose ; but it was thought too bold for the existing state of things. It was, however, printed in pamphlet form under the title of " A summary view of the rightN of British America." In it he took the ground which he regarded as the only tenable and orthodox one, that the relation between these Colonies and Great Britain was exactly the same as that of England and Scotland, after the accession of James and until the Union; and the same as her present relation with Hanover, having the same executive chief, but no other necessary political connection. In this doctrine he says he could not get any one to agree with him but Mr. Wythe,* who concurred in it from the first dawn of the question, what was the political relation between us and England ? Perhaps Mr. Wytlw had instilled this doctrine into him. Enough has been stated to shew with what ardor and ability Mr. Wythe must have continued to devote himself to his profession and his country. But little of his acts is recorded until 1775. He then joined one of the earliest corps of volunteers, and evinced his promptness to sustain in the field the cause he had espoused in council. He wore a hunting shirt, carried a musket, and joined in the military parades which took place in Williamsburg during the latter part of Lord Dunmore's administiation. But his friends at length persuaded him that he could be more useful to the state in a civic sphere.†

For that incompetent and corrupt representative of the Crown, Lord Dunmore, whose character and conduct were well calculated to bring the royal authority into contempt, Mr. Wythe had any thing but respect;—he regarded him as mean and ignorant. One day, in the General Court, over which Governor Dunmore

* Memoir, Corresp. &c. of Mr. Jefferson, Vol. I. p. 6, 7 and 92. As to Mr. Henry, (who might have been expected to concur,) Mr. Jefferson sent him a copy of the MS. and says, "Whether Mr. Henry approved the ground taken, or was too lazy to read it, (for he was the laziest, man in reading I ever knew,) I never learned: but he communicated it (the MS.) to nobody," p. 7 of Memoir, &c.
† See a communication in the Richmond Enquirer of June 10th, 1806, in relation to Mr. Wythe.

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then presided, Mr. Wythe and Mr.. Nicholas were engaged on one side of a cause ; Mr. Pendleton and Mr. Mason on the other. The case being called, Mr. Wythe urged the trial of it ; Mr. Pendleton wished it continued, as Mr. Mason was absent, and there were two counsel on the other side. Lord Dunmore had the indelicacy to say to Mr. Pendleton, "Go on, sir, for you'll be a match for both of them." "With your Lordship's assistance," retorted Mr. Wythe, sarcastically, but at the same time bowing politely. The spectators enjoyed the rebuke, so keenly and politely administered. Yet Mr. Wythe was a man of kind and benevolent heart. In 1775, he was appointed a delegate to the Continental Congress; and the next year joined heartily in the debates urging the Congress, in pursuance of the recommendation of Virginia, to declare the colonies free and independent; and fearlessly signed the immortal Declaration drawn by his own grateful pupil. The same year, 1776, he was appointed, with Mr. Jefferson and others, to revise the entire jurisprudence of the State, and to adapt it to her independent position, and the republican principles embodied in her new Government. The part specially undertaken by Mr. Wythe, was the British Statutes from the 4th year of James I, to the then present period. Mr. Jefferson took the British Statutes prior to the 4th James I; including the statutes of descents, for religious freedom, and apportioning crimes and punishments; Mr. Pendleton, the Virginia laws : All, however, revised the work of each. They made their report in 1779, and many new laws, rendered necessary by the new order of affairs, were from time to time adopted; but the main body of the revision was not acted upon till 1785. The code adopted was then termed the Chancellor's Revisal. In the two sessions of the assembly in 1777, between his return from Congress and his appointment as Chancellor, Mr. Wythe was Speaker of the House, but took an active and efficient part in whatever was before the committee of the whole. His pure integrity, judgment and reasoning powers, gave him great weight.&#42 Towards the close of the same year, he was appointed

* It was not alone by his labors in Congress and the General Assembly, that he endeavored to serve the cause of his country. There is still extant a copy of an

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one of the three Judges of the High Court of Chancery; and on the new organization of that court, in 1788, sole chancellor.

The High Court of Chancery was established in 1777, in the second year of the Commonwealth. It consisted of three judges, chosen by joint ballot of both houses of assembly, commissioned by the Governor, and to hold their office " so long as they demeaned themselves well therein." Their salarywas five hundred pounds ; but was increased the next year to £800 ; and the next to J1200. The Court had general jurisdiction in all causes in chancery, whether by original or on appeal; but no original suit could be instituted therein for a less sum than ten pounds, except against a justice of a county or other inferior Court, or the vestry of any parish. It held two terms a year, in the City of Williamsburg.&#42

The oath required of the Judges shews the spirit in which the administration of justice was regarded by the pure patriots of that day;—a spirit, too, in which Wythe is universally admitted to have executed his office:† "You shall swear that well and truly you will serve this commonwealth in the office of a judge, and that you will do equal right to all manner of people, great and small, high and low, rich and poor, according to equity and good conscience, and the laws and usages of Virginia, without respect to persons. You shall not take by yourself, or by any other, any gift, fee or reward of gold, silver, or

address to the Hessians, written by him, to induce them to desert the unjust cause they were defending. Geo. W. Randolph, Esq., informs me that he has seen the address among the papers of Mr. Jefferson, recently purchased by Congress. What use was ever made of it, I am not advised.
* 9 Hen. Stat. 389-399,521.

† The seal of the court, too, was a perpetual memento of the stern and uncorrupt impartiality that should characterise the judicial office. The Chancellor says that he was indebted to the ingenious Benjamin West, the celebrated painter, for the allusion among the devices on that seal to the story of Sisamnes related by Herodotus. For accepting a bribe, Cambyses had Sisamnes killed and flayed, and his skin cut in straps and stretched about the judicial seat. He then appointed Otanes, son of Sisamnes, judge, and told him to remember the seatupon which he sat to administer justice.—Herod. Lib. V. cap. 25-6. See following reports, p. 211.

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any other thing,* directly or indirectly, of any person or persons, great or small, for any matter done or to be done by virtue of your office, except such fees or salary as shall be by law appointed. You shall not maintain by yourself, or by any other, privily or openly, any plea or quarrel depending in the Courts of this Commonwealth. You shall not delay any person of right, for the request or letters of any person, nor for any other cause; and if any letter or request come to you contrary to law, you shall proceed to do the law, any such letter or request notwithstanding. And finally, in all things belonging to your said office, during your continuance therein, you shall faithfully, justly and truly, according to the best of your skill and judgment, do equal and impartial justice, without fraud, favor or affection, or partiality."

Such special oaths, however, unnecessarily encumbered our Statute Books, till the amendment in that respect recently introduced by the New Code. Whilst there has been in the judiciary of Virginia every grade of ability and efficiency, all have been remarkably upright; and even where some of the judges have been of immoral character, they have never incurred any imputation upon their official integrity. No Bacon, or Macclesfield, or Jeffreys, or Thorpe has ever disgraced the Bench of this Commonwealth.

In 1780 the Court was removed to Richmond. The currency having become still further depreciated, the salaries of the judges were changed to 20,000 lbs. tobacco, payable quarterly, the value to be fixed by a jury of freeholders before the County Court of Henrico ; and were finally fixed at ^?300 in specie.— The Judges of the High Court of Chancery were ex-officio Judges of the Court of Appeals, where they were entitled to precedence. Judge Pendleton was President of both. The other high chancellors were first R. C. Nicholas, and afterwards Mr. Blair.

In 1788, the number was reduced to one, and the terms of the court increased to four a year, still holden at Richmond. The

* See the anecdote related by Mr. Clay, infra.

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jurisdiction extended over the Avhole State till 1801, when the State was divided into three' districts, and with a Superior Court of Chancery, and a separate Chancellor in each. These Courts were held at Richmond, Staunton and Williamsburg ; and such remained the system till after Mr. Wythe's death.

During the revolution the courts were almost entirely closed, which no doubt gave Wythe and many other leading patriots the opportunity to devote nearly their whole time to the service of the State. His time and talents were not all that he contributed, for he suffered many pecuniary sacrifices; and the greater part of his slaves were carried over to the enemy, by the dishonest manager of his Hampton estate.

By a change in the organization of William and Mary, effected chiefly by Mr. Jefferson, who was then Governor of the State, and one of the visitors of the college, a professorship of Law was established, and Chancellor Wythe appointed to fill it, in 1781. He discharged its duties with great ability and usefulness for eight years.

It has already been stated that, as Chancellor, he was one of the Judges of the first Court of Appeals,* in which his intrepidity and uprightness were forcibly exhibited in opposing and vacating as unconstitutional, the action of one branch of the Legislature. That court held in the case of the Commonwealth v. Caton et als., 4 Call 5, that the treason law of 1776 was constitutional; and the House of Delegates could not, without the concurrence of the Senate, pardon persons condemned by the General Court, under that law.

In delivering his opinion, Wythe J. said: " although it was said the other day, by one of the Judges, that imitating that great and good man, Lord Hale, he would sooner quit the bench, than determine this question, I feel no alarm, but will meet the

* Which consisted of the Judges of the High Court of Chancery, those of the General Court, and those of the Admiralty, assembled together. Chan. Rev. 102. And the sitting members in the case of Caton, Sfc., were Pendleton, Wythe and John Blair, chancellors; Paul Carrington, Bartholomew Dandridge, Peter Lyons, and James Mercer, Judges of the General Court i and Richard Carter, one of the Judges of the Court of Admiralty. This was in Nov., 1782. 4 Call 5.

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crisis as I ought; and in the language of my oath of office, will decide it according to the best of my skill and judgment. I have heard of an English Chancellor who said, and it was nobly said, that it was his duty to protect the rights of the subject against the encroachments of the crown; and that he would do it at every hazard. But if it was his duty to protect a solitary individual against the rapacity of the sovereign, surely it is mine to protect one branch of the Legislature, and consequently the whole community, against the usurpations of the other; and whenever the proper occasion occurs, I shall feel the duty, and fearlessly perform it." Such was really the spirit of the man and the Judge, as he had other occasions to prove. One other will yet be mentioned.

Some biographers have stated that Wythe was a member of the Convention of 1787, which formed the Constitution of the United States. This is a mistake. He was appointed one of the seven deputies from Virginia. But he, prevented perhaps by his double duties of Chancellor and Professor, and Patrick Henry never took their seats. He was, however, a member of the State Convention which ratified the Federal Constitution, and presided over their deliberations in Committee of the Whole. He was a strenuous advocate of the ratification of the instrument ; and Chairman of the committee which reported the amendments thereto proposed by Virginia. He was a member afterwards of the Republican party, which he adorned by truly republican virtue and simplicity ; and twice successively presided over the college of electors in Virginia.

In 1789, when he became sole chancellor, he resigned his professorship in Williamsburg, and removed to Richmond, that he might be nearer the theatre of his judicial duties, and more convenient to those who might require his official services during the vacation of his Court.

The other occasion referred to in which his intrepid uprightness displayed itself, was in the case of the British Debts in 1793. After the peace, in 1783, there were in Virginia many persons who owed debts in England: among whom was Mr.

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Robinson, who had been the Treasurer of the Commonwealth. The Legislature had passed a law that payments of paper money into the loan office of the State in satisfaction of debts to British creditors should discharge the debtors. Such men as Edmund Pendleton and Peter Lyons, as administrators of Robinson, sought for their intestate's estate, the protection of a payment under that law. The Court below had extended it to them, and the popular feeling was in their favor. But the venerable chancellor stemmed the tide, and decreed against them ; and lived to enjoy the satisfaction of receiving the applause even of those who wished and would have justified a different decision. "A Judge," says he, " should not be susceptible of national antipathy, more than of malice towards individuals ;— whilst executing his office, he should be not more affected by patriotic considerations, than an insulated subject is affected by the electric fluid in the circumjacent mass, whilst their communication is interrupted. What is just in this Hall is just in Westminster Hall, and in every other praetorium upon earth. Some judges in the West Indian Islands have been execrated by citizens of the United American States, for several late sentences against the latter, in favor of British subjects, in certain maritime causes; justly execrated if fame hath not mis-reported their conduct. None of those citizens, surely, can wish to see the tribunals of their own country so polluted."*

In 1795, Mr. Wythe published a report of this case, with a number of others in his Court, in a folio volume. Though some of the cases reported were ended in that Court without appeal, and in others the decrees were sustained by the Court of Appeals, yet the chief object of the publication seems to have been to vindicate the decisions of the author from the opposite opinions of the Appellate Court; and in a few instances, of his associate chancellors. In general, and in his writings on other

* See the following Reports, p. 211: Mr. Munford in his funeral oration says: "Yet to the immortal honor of the people of Virginia, be it said, those decisions did not diminish his popularity ; but made them admire and respect him more than ever."

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1. ↑ B.B. Minor, "Preface," in George Wythe, Decisions of Cases In Virginia, By the High Court Chancery, with Remarks Upon Decrees By the Court of Appeals, Reversing Some of Those Decisions (Richmond, Virginia: J.W. Randolph, 1852), ix.