Wythe's Lost Papers

Before his death in June, 1806, George Wythe made no special instruction as to what should become of his personal papers and correspondence (if indeed he kept any). His last will and testament, dated April 20, 1803 (with later codicils), name his friend and neighbor William DuVal as executor, with allowances for his servants Lydia Broadnax and Michael Brown. He gives "Thomas Jefferson my silver cups and gold headed cane, and to my friend William Duval my silver ladle and table and teaspoons." To Thomas Jefferson he also wills "my books and small philosophical apparatus... the most valuable to him of any thing which i have power to bestow."

No great cache of papers or correspondence appeared after Wythe's death. It is known, however, that Wythe's lectures from his professorship at the College of William & Mary survived in manuscript, as well as several other important documents. Wythe's notebook of Greek vocabulary from the Iliad, with their Latin equivalents, ended up in the possession of John Page. Wythe's copies of manuscript drafts of the Declaration of Independence and the Virginia Constitution were printed shortly after his death in Thomas Ritchie's Richmond Enquirer. DuVal apparently loaned the documents to Ritchie for publication.

1803

Extract in The Balance, May 10, 1803

The Balance & Columbian Repository reprints an article from the Charleston Courier, with an extract of Jefferson's draft for the Virginia Constitution:

"[C]ompare those opinions with the principles laid down in 1776 by our President himself—(then plain Mr. Jefferson)—in a letter to Judge Wythe, of Virginia, written in reply to one from that Judge to him, when the Constitution was forming."

1806

Richmond Enquirer, June 20, 1806

Thomas Ritchie prints the text of a Jefferson draft of the Declaration of Independence, and a draft of the Virginia Constitution, in the Richmond Enquirer:

Among the literary reliques of the venerable George Wythe, were found the following rare and curious papers in the hand of Mr. Jefferson. The first is a copy of the original declaration of our Independence, as it came from the hands of its author: The other is a Bill of Rights and of a Constitution for Virginia, composed by Mr. Jefferson. For the permission to peruse and publish these papers, we are indebted to the politeness of Major DuVal, the sole executor of the estate.

The federal assertion that Mr. Jefferson was not the author of this celebrated declaration, has long since been refuted, or else these papers would have furnished the most abundant refutation. What now will become of the no less unfounded assertion, that this paper as it was adopted by Congress, owes much of its beauty and its force to the committee appointed to draft it? The world will see that not only were very few additions made by the committee, but that they even struck out two of the most forcible and striking passages in the whole composition. For what reasons, yet remains to be discovered.

The passages omitted from the original are printed in Italics.

This Bill and Constitution as we have them in manuscript, are without any mark to note the date of their production. It is presumed however, that they were written in 1776. The constitution, written by Mr. Jefferson, in '83, is already printed in some of the Editions of his "Notes of Virginia."

1807

Ritchie to Governor William Cabell, April 25, 1807

Calendar of Virginia State Papers, IX, 511 (published 1890).

THOMAS RITCHIE TO THE GOVERNOR.

The accompanying valuable papers were (last year) put into my possession by Major DuVall (acting Executive of Mr. Wythe), and I was by him requested to have them deposited among the archives of the Council. I do myself the peculiar pleasure of transmitting them to you for this purpose.

I am, &c.

[The above-mentioned papers were not found.-ED.]

1810

Jefferson-Tyler correspondence, November 12, 1810

Jefferson-Tyler Correspondence: Judge Roane is Spencer Roane, a former student of Wythe's, and Thomas Ritchie's cousin.

Richmond, Nov. 12, 1810

Dear Sir,

Perhaps Mr. Ritchie, before this time, has informed you of his having possession of Mr. Wythe's manuscript lectures delivered at William and Mary College while he was professor of law and politics at that place. They are highly worthy of publication, and but for the delicacy of sentiment and the remarkably modest and unassuming character of that valuable and virtuous citizen, they would have made their way in the world before this. It is a pity they should be lost to society, and such a monument of his memory be neglected. As you are entitled to it by his will (I am informed), as composing a part of his library, could you not find leisure time enough to examine it and supply some omissions which now and then are met with, I suppose from accident, or from not having time to correct and improve the whole as he intended?

Judge Roane has read them, or most of them, and is highly pleased with them, thinks they will be very valuable, there being so much of his own sound reasoning upon great principles, and not a mere servile copy of Blackstone and other British commentators,—a good many of his own thoughts on our constitutions and the necessary changes they have begotten, with that spirit of freedom which always marked his opinions.

I have not had an opportunity of reading them, which I would have done with great delight, but these remarks are made from Judge Roane's account of them to me, who seemed to think, as I do, that you alone should have the sole dominion over them, and should send them to posterity under your patronage.

It will afford a lasting evidence to the world, among much other, of your remembrance of the man who was always dear to you and his country. I do not see why an American Aristides should not be known to future ages. Had he been a vain egoist his sentiments would have been often seen on paper; and perhaps he erred in this respect, as the good and great should always leave their precepts and opinions for the benefit of mankind.

Mr. Wm. Crane gave it to Mr. Ritchie, who I suppose got it from Mr. Duval, who always had access to Mr. Wythe's library, and was much in his confidence.

I hope you are quite as happy as mortality is susceptible of, though not quite dissolved; and that you may remain so for many years, is the sincere wish of your most obedient humble servant.

Jn. Tyler

1817

William Wirt, Sketches of the Life and Character of Patrick Henry, p. 196

Sometime after June, 1806, Wirt saw Jefferson's draft of the Virginia Constitution in the Virginia State Archives.

* The striking similitude between the recital of wrongs prefixed to the constitution of Virginia, and that which was afterwards prefixed to the declaration of independence of the United States, is of itself sufficient to establish the fact that they are from the same pen. But the constitution of Virginia preceded the declaration of independence, by nearly a month; and was wholly composed and adopted while Mr. Jefferson is known to have been out of the State, attending the session of congress at Philadelphia. From these facts alone, a doubt might naturally arise whether he was, as he has always been reputed, the author of that celebrated instrument, the declaration of American independence, or at least a recital of grievances which ushers it in; or whether this part of it at least, had not not been borrowed from the preamble to the constitution of Virginia. To remove this doubt, it is proper to state, that there now exists among the archive of this state, an original rough draught of a Constitution for Virginia, in the hand-writing of Mr. Jefferson, containing this identical preamble, and which was forwarded by him from Philadelphia, to his friend Mr. Wythe, to be submitted to the committee of the house of delegates. The body of the constitution is taken principally from a plan proposed by Mr. George Mason; and had been adopted by the committee before the arrival of Mr. Jefferson's plan: his preamble however, was prefixed to the instrument; and some of the modifications proposed by him, introduced into the body of it.

1890

Worthington C. Ford, Nation, August 7, 1890

Ford describes two manuscript drafts of the Virginia Constitution, found near Lexington, Virginia:

The fact remains that for more than a century Jefferson's draft has been lost, and it has only recently been discovered near Lexington—two copies of it, both in Jefferson's MS., one with and the other wanting the preamble. Is it too great a stretch to conjecture that one, at least, was the identical manuscript that Wythe carried to Pendleton?

1891

The New England Historical and Genealogical Register, January, 1891

SOCIETIES AND THEIR PROCEEDINGS VIRGINIA HISTORICAL SOCIETY.

Richmond, Saturday, Nov. 1, 1890.—A meeting of the executive committee was held in the‘ society’s rooms, Westmoreland Club House, Vice-President Henry in the chair.

A photograph of the Constitution of Virginia, proposed by Thomas J efl’erson in the Virginia Convention of 1776—a document until recently supposed to be lost—presented by Mr. Cassius F. Lee, Jr., of Alexandria, was exhibited. The document was labelled by Jefferson, “A bill for the new modelling of the form of government and for establishing the fundamental principles thereof in future.” Other valuable donations were reported by Mr. Brock the librarian.

[1]

1892

Kate Mason Rowland, A Lost Paper of Thomas Jefferson, July, 1892

Text of the Worthington C. Ford manuscript published.

1894

Lenox Library Accession

Thomas Jefferson's proposed constitution for Virginia, June 1776. This is the third and final draft and was printed in Paul Leicester Ford's The Writings of Thomas Jefferson, volume 2, page 7, where the history of this document is noted. The first and second drafts are in the Library of Congress. Autograph document, presented to the Lenox Library by Mr. Alexander Maitland in 1894.

See Boyd's notes for 1950: 'The provenance of this text is given in a memorandum of Victor H. Paltsits (Ford Papers, NN, 1 Feb. 1916): the document was acquired from Cassius F. Lee, Jr., of Alexandria, by "William Evarts Benjamin, then a well-known dealer of New York City who acted in the matter for some woman whose name is not revealed." Alexander Maitland purchased it of Benjamin for the Lenox Library.'

1897

Bulletin of the New York Public Library, December, 1897

Document: United States.—Congress, Continental, 1775-1789. [Philadelphia, July 4, 1776.] Declaration of Independence. Draft in the handwriting of Thomas Jefferson. 4 pp. F°. EM. 1524

This one of several fair copies made by Jefferson from the original rough draft of the Declaration, after its adoption and publication, in which be gave the wording of the text as reported by the Committee, with the portions underlined that were changed or rejected by Congress. After remaining in the possession of the Lee family, of Virginia for many years, with other papers of Jefferson, the manuscript was sold by the late Mr. Cassius F. Lee, of Alexandria, to Mr. Elliot Danforth, of New York, from whom Dr. Emmet obtained it.

The words substituted by Congress are not given in this copy, which in other respects agrees closely with the drafts sent to Lee and Madison, and with the text as incorporated in the autobiography, with the exception that two paragraphs and a few words were transposed.

Five other drafts of the Declaration in Jefferson's handwriting are known:—(1) the original rough draft, with interlineations, in the Department of State at Washington (reproduced a EM. 1523); (2) the copy lent to R. H. Lee in July 1776. and given by his grandson to the American Philosophical Society at Philadelphia in 1825, being similar to EM. 1524(see EM. 1521); (3) the copy made for Madison in 1781, similar to the preceding, and now in the State Department (reproduced in fac-simile in the Madison Papers, vol. 3); (4) the draft incorporated in the autobiography of 1821, similar to (2) and (3), and also in the State Department (printed in Jefferson's Writings (Ford); and (5) the fragment belonging to Mrs. Washburn, of Boston. See Jefferson's Writings (Ford) vol. 2. p. 42, note.

It is stated by Jefferson, in a letter to Madison (Aug. 30, 1823), that be wrote a fair copy from the rough draft, reported it to the Committee, and from them unaltered, to Congress. All trace of this fair draft has been lost. It was probably used in crossing out the passages rejected by Congress, and in the making of the engrossed copy. The latter, which is the one that was signed, is in the keeping of the State Department.

Between July 4 and 10 Jefferson sent other drafts of the Declaration, with the omitted passages marked, to George Wythe, John Page, Edmund Pendleton, and Philip Mazzei, none of which has been found or identified. See Jefferson's Writings (Ford) vol. 2. p. 42, note.

Thomas Lanon, "A Closer Look at Jefferson's Declaration," New York Public Library Blogs, July 2, 2012.

1898

Hays, A Note on the Jefferson Manuscript

Describes a copy of a draft of the Declaration given to the American Philosophical Society in 1825, from a grandson of Richard Henry Lee. Notes another draft at the Lenox Library in New York (absorbed by the New York Public Library), and doubts the Lenox copy came from R.H. Lee:

5. A copy in the Emmet collection in the Lenox Library, New York. "This is one of several fair copies made by Jefferson from the original rough draught of the Declaration, after its adoption and publication, in which he gave the wording of the text as reported by the Committee, with the portions underlined that were changed or rejected by Congress. After remaining in the possession of the Lee family of Virginia for many years, with other papers of Jefferson, .... was sold by the late Mr. Cassius F. Lee, of Alexandria, to Mr. Elliot Danforth, of New York, from whom Dr. Emmet obtained it."1

I have not been able to learn the circumstances under which this copy came into the possession of the Lee family. Dr. Emmet writes me that the only information he "can give is that Mr. Lee stated to me that it was one of the copies Jefferson sent his grandfather, and that it had been sent to some one in lower Virginia by Richard Henry Lee shortly after, and that it was not recovered for many years after."2

This copy is without interlineation and does not contain the additions made by the Congress. It is, with some slight exceptions, the text of the document as reported to the Congress.

1 Bulletin of the New York Public Library, p. 355.

2 Personal communication, April i6, 1898. It does not seem likely that Jefferson should have sent two similar autographic copies of the Declaration to Richard Henry Lee, and as the history of the copy possessed by this Society is clear and indisputable, it is probable that he Emmet copy came from another source, and Mr. Paul L. Ford, the learned student of Jefferson's works, informs me that he is inclined to believe that it is the copy sent to John Page.

In addition to these five copies and a fragment of a sixth, Jefferson made, according to Ford,1 between the 4th and 10th of July, other copies, which he sent to George Wythe,2 John Page, Edmund Pendleton and Philip Mazzei, who gave his copy, so so Jefferson states in his letter to Vaughan, to the Countess de Tessé of France, but is not known if these copies are still in existence.

1 Writings of Jefferson, ii , p. 42, Note.

2 This copy was delivered to Mr. Thomas Ritchie, editor of the Richmond Enquirer, by Major Duval, the executor of Mr. Wythe's estate, and its text was printed in Niles's Weekly Register, July 3, 1883 (Vol. iv, No. 13). Notwithstanding inquiry among Mr. Ritchie's descendants I have not been able to learn whether it is still in existence.

1901

Elliot Danforth in the New York Times, January 6, 1901

"Historic Manuscript Found in a Garret." Several years ago, Cassius F. Lee , Jr. sells Elliot Danforth a Jefferson draft of Declaration in Alexandria, Virginia. Danforth sells it to Dr. Thomas A. Emmett.

1906

Hazelton, The Declaration of Independence: Its History

In the New
York Public
Library
(Lenox)

The copy in the New York Public Library (Lenox) was purchased from Dr. Thomas Addis Emmet of New York City. He secured it from Elliot Danforth of the same place, who purchased it from Cassius F. Lee of Alexandria, Va. Lee had written to both Emmet and Danforth, but Emmet's letter accepting the Declaration upon the terms proposed was not received until after Danforth had purchased it.

How it came into the hands of Lee is not known.

Danforth writes us that he cannot find the letters which he received from Lee, even if they are still in existence. Emmet writes us: "I did not preserve Mr. Lee's letters—" Lee died in 1892, and, so far as we can learn by corresponding with his daughter, Mrs. W. J. (Lucy Lee) Boothe, Jr., of Alexandria, left no record of the history of the manuscript (if he knew anything of it) among his papers.

Emmet writes, however, to Hays (Hays says): "Mr. Lee stated to me that it was one of the copies Jefferson sent his grandfather, and that it had been sent to someone in lower Virginia by Richard Henry Lee shortly after, and that it was not recovered for many years after"; but this, we think, cannot be true, unless Jefferson sent it with some other letter than that (See p. 344) of July 8, 1776, which seems scarcely possible.

It may very well be the copy¹¹⁸ which Jefferson mailed to Pendleton or the one¹¹⁴ found among the papers of Wythe or, if there ever was such a copy, the copy^ll6 mailed to Page.

It also is in the handwriting of Jefferson and fills the front and reverse sides of two sheets of foolscap; and the paper itself is of the same character and size as that used for the draft which he sent to R. H. Lee. Indeed, pages 1, 2 and 4 respectively of these two drafts end upon the same word; while page 3 of this copy ends with the word "altering" and of the copy sent to Lee with "altering fundamentally the forms of our governments;": from which it might appear that one was copied from the other. The individual lines, however, as well as the underscored words, as we have seen, do not always correspond; and there is sometimes an "and" in one where there is an "&" in the other and an occasional slight difference in punctuation. There is no indorsement—or, indeed, any extraneous writing—upon it as there is upon the copy which was sent to Lee. It has at some time been folded once each way.

Sent
to
Wythe

Another draft in the handwriting of Jefferson which has not been located—unless it is the one in the New York Public Library (Lenox) or the one in the Massachusetts Historical Society—would seem¹²⁰ to have been sent to Wythe; for the Richmond Enquirer¹²¹ (C) of August 6, 1822, says:

MALIGNITY EXPOSED.

The subjoined article from the Charleston Patriot exposes another of the vile attempts, which have been recently made by a sleepless spirit of resentment, to strip the laurel from the brow of Jefferson. . . At least thirteen years ago¹²² we published in this paper a copy of the original draft¹²³ as it came from his own hands: This copy was in his handwriting, and was found among the papers of the late Mr. Wythe, the friend and instructor of his early years. This copy was published in Niles's W. Register, & in various other newspapers of this continent. And now forsooth, we are to be amused with a new discovery of the original draft being "scored and scratched like a school-boy's exercise." This is a most miserable exaggeration—the variations, which were made, were most of them disapproved of by the author we recollect those passages well—and we repeat what we said at the time of re-publication, that the paper was altered for the worse. . .

[From the Charleston Patriot.]

This would appear to be an age of calumny and all uncharitableness. . . But as if malice is contagious or admits of being propagated, a coadjutor to the "Native of Virginia" has appeared in the Federal Republican, whose article will be found below, and who wishes to rob Mr. Jefferson of the fume of having solely written the Declaration of Independence. —Richard Henry Lee is credited with the honor of having moved the Declaration, and of having corrected and amended the original report of this celebrated paper. Mr. Jefferson is not denied having furnished the outlines of the Declaration, but it is pretended that it is the work as it now stands of abler hands. Now, the plain intent of this fresh or forgotten fragment of history just recovered and brought to light, is to deprive Mr. Jefferson of all credit for originality in drawing up the Declaration of Independence. . . The credit of being the author of the Declaration is nowise impaired by the subject being moved by another; but the insinuation that the original draft only was furnished by him and not the perfect copy as it now stands, is contradicted by the evidence of contemporaries. Let us see these promised documents. . .

[From the Philadelphia Union.]

We have long been acquainted with the facts alluded to in the following article from the Federal Republican. We have seen Mr. Jefferson's draft¹²⁴ of the Declaration of Independence, scored and scratched like a school boy's exercise. When Mr. Schæffer shall comply with his promise to publish the documents relating to this subject, the jack daw will be stript of the plumage, with which adulation has adorned him, and the crown will be placed on the head of a real patriot.

Richard Henry Lee.—It is truly remarkable that this great statesman is forgotten among all of the celebrities of the Fourth of July. It is to this "illustrious" patriot, we are indebted for our Declaration of Independence, for it was he who moved it in Congress. . . Among men of sense, candor and truth, there will be no question whether he who dared openly to propose the project, or he who had the principal agency in putting it on paper deserves the most credit...

Ere long, we hope to have leisure to publish some very important documents on this subject. We have the very copy¹²⁵ of the declaration of independence, as it was originally reported and sent by the "illustrious penman," to this same Richard Henry Lee together with his remarks¹²⁶ on it in his own hand writing. . .

[Fed. Rep.

The Weekly Register (C and N) referred to—of July 3, 1813—says:

The time fitting the purpose, we embrace this occasion to present our readers with the Declaration of Independence, placing by its side the original draft¹²⁷ of Mr. Jefferson, about which much curiosity and speculation has existed. The paper from which we have our copy, was found among the literary reliques of the late venerable George Wythe, of Virginia, in the hand writing of Mr. J. and delivered to the editor [Thomas Ritchie] of the Richmond Enquirer by the executor of Mr. Wythe's estate, major Duval. The passages stricken out of the original, by the committee, are inserted in italics.

Here follow in separate columns a copy (seemingly) of the Declaration as printed by Dunlap under the order of Congress and a copy¹²⁸ (substantially) of it as submitted to Congress by the committee on June 28th. Below appears the following: "The Declaration as adopted was also signed."; and then come the names of the signers, except that of M:Kean, arranged by Colonies.

1916

Paltsits Memorandum, February 1, 1916

See Boyd's note for 1950: 'The provenance of this text is given in a memorandum of Victor H. Paltsits (Ford Papers, NN, 1 Feb. 1916): the document was acquired from Cassius F. Lee, Jr., of Alexandria, by "William Evarts Benjamin, then a well-known dealer of New York City who acted in the matter for some woman whose name is not revealed." Alexander Maitland purchased it of Benjamin for the Lenox Library. Shortly after this text was brought to light in 1890, efforts were made to identify it as the copy that TJ had given to George Wythe to convey to the Virginia Convention (D. R. Anderson, "Jefferson and the Va. Const.," Amer. Hist. Rev., XXI [1915-1916], 751).'

Anderson, Jefferson and the Virginia Constitution, July 4, 1916

Suggestion to compare the Worthington C. Ford manuscript with The Enquirer text.

1943

Julian P. Boyd, The Declaration of Independence

VII. Unidentified Copy of the Declaration Made by Jefferson [Cassius F. Lee Copy]

Reproduced from the original through the courtesy of the President and Board of Trustees of the New York Public Library, who also consented to place it on exhibit in the current Jefferson exhibit at the Library of Congress. This copy was purchased for the New York Public Library in 1896 from Dr. Thomas Addis Emmet, who in turn secured it from Eliot Danforth. The latter purchased it from Cassius F. Lee of Alexandria, Virginia. Since its early history is hidden in obscurity, the person for whom Jefferson made it is not known. In addition to the copy made for Richard Henry Lee, Jefferson sent other copies, which evidently were made between July 4 and July 10, to George Wythe, John Page, Edmund Pendleton, and Philip Mazzei. The present copy may be one of these, but this fact has not been positively established. See Hazelton, op. cit., p. 347-48. This copy corresponds closely to the Lee copy in respect to its contents: that is, it represents the Declaration approximately as it was when the Committee of Five reported it to Congress. See note below on the copy sent to George Wythe.

Note on the Copy Sent by Jefferson to George Wythe

John H. Hazelton, in his invaluable pioneering study on the Declaration of Independence, quoted (p. 350) the Richmond (Virginia) Enquirer of August 6, 1822, as saying it had "published ... about thirteen years ago a copy of the original draft [of the Declaration] as it came from his [Jefferson's] own hands. This copy ... was found among the papers of Mr. Wythe, the friend and instructor of his early years. This copy was published in Niles's W. Register, & in various other newspapers of this continent." Hazelton (p. 602) was unable to locate it as published in the Richmond Enquirer and elsewhere about 1809. In consequence, there has been doubt as to whether the copy in the New York Public Library (Document VII) or that in the Massachusetts Historical Society (Document IX) could be the Wythe copy. For the reasons given below, it is believed that the copy in the New York Public Library is, in all probability, the copy sent to Wythe.

Among the Jefferson Papers in the Library of Congress there is a box of newspaper clippings, one of which is taken from The Commonwealth (Pittsburgh, Pennsylvania) for July 1, 1807. This clipping is endorsed in Jefferson's hand: "Declaration of Independence" and the printing of the Declaration is prefaced by the following comment of The Commonwealth: "We have chosen to publish, at this time the original draught of the Declaration of Independence, as it came from the pen of Mr. Jefferson, found among the papers of the venerable George Wythe, after his decease, in the handwriting of the author. It will be seen, by a comparison with the Declaration, as adopted, that hardly any instrument of writing, of the same length, written by an individual, ever underwent fewer alterations and amendments, when submitted to an assembly for revision and adoption. It is evident, therefore, that Mr. Jefferson, at that time, expressed the sense of the nation at large—as he has ever since done—and, as we trust, he ever will do. The passages omitted in the original composition are printed in Italics." The italicized portions in The Commentator agree almost precisely with the corresponding underlined passages in the New York Public Library copy, and in one particular especially: in the Wythe copy "General" is omitted from the title of the Declaration and in the latter it is marked for omission. This occurs in no other copy except that made for Madison (and, of course, in the copy in Notes from which the Madison copy was made). In addition to this circumstantial evidence, it should be noted that the New York Public Library copy was acquired from Cassius F. Lee—who also possessed the two later drafts of Jefferson's ideas on a constitution for Virginia. Jefferson's proposed constitution was sent to Williamsburg by George Wythe. Could it be that the two drafts that belonged to Cassius F. Lee were those actually carried by Wythe'? One of these drafts lacks the part that formed the Preamble to the Virginia Constitution: could it be that Wythe detached that part and presented it to the Virginia Convention'? These, of course, are purely speculative questions, but the presence in Cassius F. Lee's hands of a copy of the Declaration bearing such exact relationship with the Wythe copy as printed in The Commentator, together with his possession of two drafts of a document which Wythe transmitted for Jefferson, lends strong color of probability to the supposition that the New York Public Library copy is the George Wythe copy. The point is not conclusively established and so, in these pages, the copy in the New York Public Library is referred to as the Cassius F. Lee copy.

1950

The Papers of Thomas Jefferson

Julian P. Boyd's notes on Jefferson's manuscript draft of the Virginia Constitution (p. 364-365):

Dft (NN). This copy of TJ's constitution was folded and docketed in correct legislative form. At the top of the two sheets, after it was folded, TJ endorsed this title on his substantive law: "A Bill for new modelling the form of government, & for establishing the fundamental principles thereof in future." Below this, he added: "It is proposed that this bill, after correction by the Convention, shall be referred by them to the people to be assembled in their respective counties and that the suffrages of two thirds of the counties shall be requisite to establish it."

The provenance of this text is given in a memorandum of Victor H. Paltsits (Ford Papers, NN, 1 Feb. 1916): the document was acquired from Cassius F. Lee, Jr., of Alexandria, by "William Evarts Benjamin, then a well-known dealer of New York City who acted in the matter for some woman whose name is not revealed." Alexander Maitland purchased it of Benjamin for the Lenox Library. Shortly after this text was brought to light in 1890, efforts were made to identify it as the copy that TJ had given to George Wythe to convey to the Virginia Convention (D. R. Anderson, "Jefferson and the Va. Const.," Amer. Hist. Rev., XXI [1915-1916], 751). A close comparison of the copy found among Wythe's papers at his death in 1806 and printed with meticulous accuracy in the Richmond Enquirer, 20 June 1806, clearly establishes the identity of that copy and the one now in the New York Public Library, here designated as the Third Draft (Boyd, Declaration of Independence, 1945, p. 44-5). In 1825 TJ wrote: "I ... drew a sketch or outline of a Constitution, with a preamble, which I sent to Mr. Pendleton, president of the convention .... He informed me afterwards by letter, that he received it on the day on which the Committee of the whole had reported to the House the plan they had agreed to ... " (TJ to Augustus B. Woodward, 3 Apr. 1825). It has been assumed that this was a mistake of memory on TJ's part and that he confused Pendleton with Wythe (Hazelton, p. 451). Wythe reported to TJ that "the one you put into my hands was shewn [italics supplied]" to those chiefly engaged in framing the Constitution (Wythe to TJ, 27 July 1776). This, together with the significant fact that Wythe's copy remained among his papers, indicates that TJ was correct in saying he had sent a copy to Pendleton. If so, this would tend to confirm the supposition advanced in the notes to the Second Draft that two copies were sent. Wirt indicates that the copy he saw in the State archives was the one "forwarded... to Mr. Wythe"; however, he also describes it as "an original rough draught," a description which scarcely fits the Wythe copy or Third Draft (Wirt, Henry, I, 196). Moreover, if Wythe's copy had been used by the Convention as the text from which several parts were taken for incorporation in the Constitution adopted by that body, it seems very likely that some corrections or markings on the MS of the text would have been made to indicate what parts had been selected, how they had been altered, s.c. (see Conv. Jour., May 1776, 1816 edn., p. 78, for 28 June, when it was ordered that "the said plan of government, together with the amendments, be fairly transcribed" [italics supplied]). No such alterations or markings appear on the Third Draft.

¹ MS torn; text supplied from the precisely correct and literal text printed in the Richmond Enquirer, 20 June 1806.

² A word must have been omitted by TJ at this point; elsewhere in the document the comparable phrase is employed: e.g., "incapable of holding any public pension ... ," not "incapable of any pension." The fact is that at this point in the Second Draft TJ wrote: "incapable of being again appointed to the same"; then struck out the words "being again appointed to"; then interlined "holding," making the phrase read as he usually wrote it "incapable of holding the same." However, the word "holding" appears also to have had a line drawn through it, though it also bears evidence of the slight smudge that TJ occasionally made in his rough drafts, as if he had run his finger over a freshly drawn line or word to expunge it. At all events, it is certain that "incapable of holding" is what he normally would have written and it is equally certain that "holding" was interlined though perhaps lined out. The point is worth noting since both the text of the Third Draft and the text of the Enquirer omit the word "holding" at this point, thus adding to the preponderant evidence that they are identical.

³ The square brackets here and below in the text are in the MS.

⁴ The words in italics were struck out, and then TJ interlined the following words at the top of the same page of MS: "nor shall there be power any where to pardon or to remit fines or punishments." This clause was finally inserted in the next to the last paragraph under "1. Legislative," above.

⁵ The six lines in the MS beginning with the words "by an act of the legislature" down to and including "defined by the legislature, and for" are written on a slip of paper pasted on the MS at this point. This represents a curious omission made by TJ in copying, an omission that seems inexplicable except on the ground that the Third Draft (Wythe's copy in NN) was copied not from the Second Draft (DLC) but from another text. As originally copied in the Third Draft, TJ caused this passage to read in part, without a break in the lines, "for breach of which they shall be remove able [end of line] the punishment of which the said legislature shall have previously prescribed certain and determinate pains. ... " The First Draft includes in rough, interlined form the six lines thus omitted at the end of the line "they shall be removeable," but in the Second Draft this passage comprises four and a half lines at the bottom of page 7 and two and a half lines at the top of page 8. It is conceivable that TJ could have accidentally skipped such a passage if it had ended at the bottom of a page or if its beginning and end coincided with the beginning and end of a line. But it is difficult to believe that he could have made this error if he had been copying from a text where the passage began in the middle of the line near the bottom of one page and ended in the middle of the line near the top of another, particularly in a case where the omission involved such a sharp break in the continuity and sense. The evidence in this instance alone is not conclusive, but taken in connection with TJ's remarks in 1825, with the statements of Wirt and Leigh as cited in notes to the Second Draft, and other evidences given in these notes, it seems certain that the Third Draft was copied from another fair copy made from the Second Draft. At all events, the omission of this passage conclusively proves that the Third Draft is the copy that George Wythe carried to Virginia, for the Richmond Enquirer printed the six lines written on the slip of paper, but neglected to include the lines written underneath. This typographical error obviously could have occurred only in the use of the copy now in NN, which, therefore, is the copy transmitted by Wythe.

1983

Kirtland, George Wythe: Lawyer, Revolutionary, Judge p. 298-299

Appendix A: "What Has Become of George Wythe's Papers?"

It is intriguing but apparently idle to speculate on the possibility that a substantial corpus of Wythe papers may survive to the present day.

Wythe may not, in fact, have kept extensive files. Few men of his era shared Jefferson's conspicuous sense of the future and of their importance to it. It was Jefferson, indeed, who remarked to Tyler that he had been surprised to learn of the existence of Wythe's manuscript lecture notes, since "he might have destroyed them, as I expect he has done [to] a very great number of instructive arguments delivered at the bar, and often written at full length.1

Apart from small bequests and the establishment of a trust to provide for Lydia Broadnax, Wythe's entire estate went to the brother and two sisters of George Wythe Sweeney: Charles A., Ann, and Jane Sweeney. Charles and Jane were minors (Holder Hudgins of Mathews County, the ultimate purchaser of Chesterville, was their guardian) as late as November, 1808, and before that date (by which time she had married John Cary, and seems to have been living in Henrico County), Ann may have been under Hudgins's guardianship, too.2

1 Jefferson to John Tyler, 25 Nov. 1810, in answer to Tyler's letter cited above, Chapter I, note 9: DLC, Jefferson Papers, 191:34037.

2 The Wythe heirs and their guardian can be traced back, in part, through Abraham Warwick, who owned the Wythe Richmond homesite in the

There is no evidence that these grandchildren of Wythe's sister, Ann, were living with their great-uncle, like their brother, George, at the time of Wythe's death. If they knew of his papers, they apparently had no interest in or appreciation of them. Governor Tyler suggests to Jefferson, in the letter cited above (Chapter I, note 9), that perhaps the latter was entitled to the manuscript of the lectures by reason of the bequest of Wythe's library (Would that Jefferson had overcome his scrupulous regard for the exact terms of the bequest! Had he, the manuscript might have survived. Jefferson's conscience in this regard is in stark contrast with the uncertainties of Tyler, who though a lawyer and later a judge could say, four years after Wythe's death, "You are entitled to [the manuscript] by his will (as I am informed)"!).

Moreover, there is in the executive papers of Virginia a letter written by Thomas Ritchie to Governor William H. Cabell, dated 27 April 1807, covering certain "valuable papers" that had come into the editor's possession through "Major Duvall (acting Executive of Mr. Wythe)" and were, at the latter's request, to be deposited in the State archives.3 There can be little question that these papers, otherwise undescribed, had come from Wythe's files. There is no trace of them today, nor was there when the archives were calendared at the end of the last century.

1850's; see Richmond City Hustings Deeds, Book 21, p. 570, and Book 3l, p. 385; Henrico Court Order Book #16, p. 223: #14, p. 162; and Henrico Court Minute Book, 1823-1825, pp. 269, 279, all in Vi.

For the information on Hudgins's purchase of Chesterville, I can cite only a newspaper article from the Daily Press of Newport News, Hampton, and Warwick, 31 May 1953, section D, p. I, purporting to give the family tradition of Col. Robert Hudgins, a descendant of Holder and the last private owner of Chesterville; see Appendix B.

3 Calendar of Virginia State Papers, IX, 511.