Difference between revisions of "George Wythe the Colonial Briton"

"[[Media:HemphillGeorgeWytheTheColonialBriton1937.pdf|George Wythe the Colonial Briton]]" is a 1937 dissertation by [[William Edwin Hemphill|W. Edwin Hemphill]] (1912 &ndash; 1983), for a doctoral degree from the [http://www.virginia.edu/ University of Virginia].<ref>William Edwin Hemphill, "George Wythe the Colonial Briton: A Biographical Study of the Pre-Revolutionary Era in Virginia," PhD diss., University of Virginia, 1937. Used with permission.</ref> Hemphill was an archivist, historian, and editor, and contributed greatly to [[George Wythe]] scholarship, among his other historical pursuits. In 1933, he received a M.A. from [http://www.emory.edu/ Emory University,] with a [[George Wythe, America's First Law Professor|thesis also on George Wythe]]."<ref>Hemphill, "[[Media:HemphillGeorgeWytheAmericasFirstLawProfessor1933.pdf|George Wythe: America's First Law Professor and the Teacher of Jefferson, Marshall and Clay]]," master's thesis, Emory University, 1933.</ref>

* MS Word

This dissertation had a remote and unwitting origin six full years ago. In the spring of 1931 Mr. Frank L. Jones, of New York City, Vice-President of the Equitable Life Assurance Society, sponsored among Hampden-Sydney College students an essay contest on Wythe. During the course of preparing for that competition a rather puerile paper, which contained not a single original fact or thought, it occurred to me that George Wythe had a good a claim as any of his contemporaries in the golden age of Virginia leadership to the title of the "Forgotten Man". That idea &mdash; itself little more original than the research which was its spawning-ground &mdash; has undergone no material amendment despite its more recent subjection to critical comparative examination. I still believe the thought centered upon Wythe by his score of biographical homilists and by the public to be far from commensurate with the nobility of his character and the value of his contributions to American institutions.

eight governmental units. As if it had not already sufficient claims to priority, during the following year, 1634/5,¹ Benjamin Syms endowed the first educational institution in the [[wikipedia:New World|New World]], and in 1638 Thomas Eaton in a somewhat similar benefaction surpassed Syms' philanthropy. Through the [http://crgis.ndc.nasa.gov/historic/Syms_Free_School_Site Syms Free School] and the [[wikipedia:Syms-Eaton Academy|Eaton Charity School]], whose doors were open for many a decade, [[wikipedia:Elizabeth City (Virginia Company)|Elizabeth City]] antedated slightly the notable legacy of [[wikipedia:John Harvard (clergyman)|John Harvard]].²

1. Until the British adoption in 1752 of the Gregorian calendar, a revision of the less accurate Julian calendar, the new year began among English peoples late in March. Thus, according to present reckoning, February 12, 1634, was actually in the year 1635. The generally current practice of making a double notation of years in the overlapping period (<u>e.g</u>., March 1, 1750/1) &mdash; in preference to the more antiquated method of signifying Old Style dates as March 1, 1750 (O.S.) &mdash; has been adopted throughout these pages.

2. Tyler, [[History of Hampton and Elizabeth City County Virginia|<u>History of Hampton</u>]], 22-23; Starkey, First Plantation, 13. Governor William Berkeley, Virginia's counterpart of Charles II, was evidently quite ill-informed in one respect when he made his oft-quoted report in 1671, "But, I thank God, <u>there are no free schools</u> nor <u>printing</u> [in this colony] and I hope we shall not have [them] these hundred years; for <u>learning</u> has brought disobedience, and heresy, and sects into the world, and printing has divulged them, and libels against the best government. God keep us from both!": William Waller Hening, ed. <u>The Statutes at Large; being a Collection of All the Laws of Virginia ...</u>, II, 517. Here, as always in later pages, the italics are in the original. This collection will hereafter be cited as Hening, <u>Statutes</u>.

The original Wythe immigrant, great-grandfather of George in a direct line of succession,² was Thomas Wythe, whom for clarity's sake, since his sons for three generations also bore that name, it is perhaps best to call Thomas the First. He moved into [[wikipedia:Elizabeth City County, Virginia|Elizabeth City County]] in or a few years before 1680,³ probably after [[wikipedia:Bacon's Rebellion|Bacon's Rebellion]], the revolt in Virginia which preceded the [[wikipedia:American Revolution|American Revolution]] by exactly a century. He acquired a considerable acreage near the northern side of the peninsula beside [[wikipedia:Back River (Virginia)|Back River]] and established there the family estate known as "Chesterville".⁴

There may be some exaggeration in the description of her as "a woman of uncommon knowledge and strength of mind" which ascribes to her so intimate an acquaintance with Latin that she spoke it "fluently",¹ but at least she, as a granddaughter of [[wikipedia:George Keith (missionary)|George Keith]], was not as illiterate as the mother and grandmother of her husband, neither of whom could sign her own name.² Wythe himself in later years attributed to his mother his initiation in the study of the Latin language,³ but she taught him only the principles of grammar and, as he said, "to read the colloquies of <u>Corderius</u> very imperfectly...."⁴ Another report has been handed through somewhat more indirect channels to the effect that she assisted his translations of the [[wikipedia:New Testament|New Testament]] in its [[wikipedia:Greek language|Greek]] text by referring when necessity demanded to an English version,⁵ though she probably "knew of Greek only the alphabet and how to hold the dictionary...."⁶ Thus George Wythe's maternal

2. Benjamin B. Minor, "[[Memoir of the Author]]", George Wythe, <u>Decisions of Cases in Virginia by the High Court of Chancery...</u> (2nd ed.), xii.

On the basis of these incomplete records it is safe to picture Wythe as a very successful attorney at law during 1747 and 1748, riding the circuit of the monthly courts from [[wikipedia:Caroline County, Virginia|Caroline County]], in the western Tidewater, on the east, through Spotsylvania and Orange to Augusta, in the Shenandoah Valley, on the west. He managed to make at least one visit to Elizabeth City, however, for in May, 1743, he sold to George Wray a slave girl named Lucy for <s>L</s>23 5s, the court record of the transaction identifying him as "of the county of Spotsylvania, attorney at law".² Presumably, he was aided in getting his start as a practitioner by Zachary Lewis, perhaps living in Lewis' home. They must have often travelled together in the best of fellowship from courthouse to courthouse; locked horns, matched eloquence, and pitted wits against wits and argument against argument in dead earnest, upon arrival at a county seat, while upholding opposites sites of the same suit;³ and ridden off together, upon adjournment,

There was more, however, than the <u>camaraderie</u> of association at the bar to link together the lives of George Wythe and Zachary Lewis. Professional relationships were supplemented and made more personal by the marriage of the twentyone year old attorney to a daughter of his forty-five year old patron.

1. McIlwaine, ed., <u>Journals of the House of Burgesses, 1702-1712</u>, ix; McIlwaine, ed., <u>Journals of the House of Burgesses, 1712-1726</u>, vii, x; <u>William and Mary College Quarterly</u> (1st series), VIII, 79, IX, 63; Horace Edwin Hayden, <u>Virginia Genealogies</u>, 381. For an abstract of John Waller's will see Crozier, ed., <u>Virginia County Records</u>, I, 13-14; for abstracts relating to his sons see <u>ibid</u>., <u>passim</u>. Of them Edmund and John became clerks of SpotSylvania County, William was a colleague of Wythe and Zachary Lewis at the bar, and Benjamin moved to Williamsburg and became a judge of the admiralty court and a burgess for a number of years.

imputation that he deserved at his comparatively immature age a smaller measure of good fortune. In 1754 an appropriation of &pound;20,000 was passed to help finance the current war against the French in the West. But such generous cooperation was circumscribed by an almost unprecedented condition: in the disbursement of these funds His Majesty's lieutenant-governor, who alone had previously superintended colonial expenditures, should act in conjunction with a special committee of directors, on which Wythe was the junior member named by the General Assembly.¹ When a sum twice as large was made available in the following year on the same terms, Wythe was again among those to whom the House delegated the assignment of guarding against the possibility that it might not be so expended as to render greatest aid to England's cause.² Upon a reorganization of four standing committees in 1755, to consider an accumulation of provincial business which had piled up under the exigencies of international conflict, he was given a place as the newest member of the three major subdivisions &mdash; the committees on Privileges and Elections

His Majesty had delegated the choicest of thirteen continental plums of colonial patronage to the [[wikipedia:Willem van Keppel, 2nd Earl of Albemarle|Earl of Albemarle]], who held the title of [[wikipedia:List of colonial governors of Virginia|Governor General of Virginia]] but continued his residence in [[wikipedia:England|England]]. It was then customary among such appointees to sublet the actual supervision of a colony's affairs to one of their own favorites, who held the

When the adamant lieutenant-governor, surprised at these unexpectedly forceful attacks,³ and his loyal Council gave not one inch of ground,⁴ the Burgesses proceeded to the selection of their agent. [[wikipedia:Peyton Randolph|Peyton Randolph]] (1721-1775), representative of corporate [http://www.wm.edu/ William and Mary College], which had a sort of "rotten borough" seat in the House, was chosen, and it was resolved that he should be paid &pound;2500 from the public

1. <u>Cf</u>. <u>e.g</u>., Brock, ed., <u>Records of Dinwiddie</u>, I, x; McIlwaine, ed., <u>Journals of the House of Burgesses</u>, 1752-1758, xx.

Whether or not Wythe accepted the lieutenant-governor's appointment with professions of loyalty to one or more of the Burgesses, his position during 1754 was a treacherous one. One misstep might have turned against him the irascible Dinwiddie, whose temperament was not bettered by ill-health, and lost for him the benefits of royal patronage and of the Attorney-General's &pound;140 annual salary. On the other hand, Virginians were quick to detect and condemn in appointees of the Crown sentiments which they considered prejudicial to their interests. In the heated atmosphere of 1754 Wythe had outwardly taken Dinwiddie's side, yet he seems to have steered safely the difficult course between a [[wikipedia:Scylla|Scylla]] and a [[wikipedia:Charybdis|Charybdis]]. So far as is known, he received no censure from the critical tongue or caustic pen of Dinwiddie. His selection late in the summer of 1754 by the freeholders of Williamsburg as their representative in the General Assembly and the assignments given him by the House during that and the following year are adequate testimony of the public's approval of his role in the pistole controversy.

Another link in the chain which bound [[George Wythe]] to residence in [[wikipedia:Colonial Williamsburg|Williamsburg]] was the blossoming of social interests there into a second marriage. After several years of widowerhood, probably about 1755, Wythe married [[Elizabeth Taliaferro Wythe|Elizabeth Taliaferro]],

1. All the sketches of Wythe either ignore, evade, or falsify the time of his entrance to this court, the official records of which have never been available to scholars; when any information on the point has been given, it has been stated or implied that the date was 1756. But an earlier though indefinite date can be deductively established from the fact that Paul Carrington (1732/3-1818) received May, 1755, a license to practise law signed by [[wikipedia:Peyton Randolph|Peyton Randolph]], [[wikipedia:John Randolph (loyalist)|John Randolph]], and George Wythe: Alexander Brown, <u>The Cabells and Their Kin: a Memorial Volume of History, Biography and Genealogy</u>, 205. Since the official board of examiners could then consist only of judges of the General Court and of members of its bar, and since Wythe was never a member of the Council, it follows indubitably that he had gained admission to its bar before May, 1755. The original act of 1745 setting up the board of examiners had been renewed in 1748 without change in that respect: Hening, ed. <u>Statutes</u>, VI, 140-143.

daughter of Richard and Eliza Eggleston Taliaferro.¹ Her father owned an estate called [http://www.nps.gov/nr/travel/jamesriver/pow.htm "Powhatan",] located in [[wikipedia:James City County, Virginia|James City County]] some four or five miles south of Williamsburg; he was a wealthy man, probably a "gentleman farmer" by vocation, an architect by avocation, and had been a judge of his county's court.² With his second bride it is possible, perhaps even likely, that he secure the use of the [[George Wythe House|comfortable brick house]] which was for many years his home. Situated on the west side of the Palace Green, adjoining far-famed [http://www.brutonparish.org/ Bruton Parish Church,] less than a block from [[wikipedia:Colonial Williamsburg|Duke of Gloucester Street]], with the palatial Governor's Palace two blocks distant on the north, this handsome residence was built about 1755 by Wythe's second father-in-law. Under the terms of Richard Taliaferro's will its legal title was vested in his daughter and her husband.³

1. Jefferson, "[[Notes for the Biography of George Wythe]]", filed under August 31, 1820, Jefferson Papers, Library of Congress; Hayden, <u>Virginia Genealogies</u>, 382; Tyler, "[[Great American Lawyers|George Wythe]]", <u>loc. cit</u>., 82-83, is authority for the date, for which no citation is given

home during the campaign. One of these explained that Wager "had assisted him in his Distress, and therefore he did treat the Freeholders at that Time", adding his intention to do the same thing "as often as M^r <u>Wager</u> and M^r <u>Wythe</u>, should be candidates for that County." The Committee learned, too, that at a meeting of freeholders "procured by M^r <u>Wythe</u> who was a Candidate or his Friends" some of his backers promised that Wythe would serve as burgess without compensation and "that they would give Bond to repay any Thing that should be levied on the County for him...." Not to be outdone, Wager had offered to match these terms, which gave an unheralded wag by the name of Cary his cue to declare, "now we have got two men that will serve us for nothing, which he was glad of, as he found it very difficult to pay his Taxes...."¹ But, since Cary had not voted for Wager, the Committee could find nothing illegal in Wager's campaign practises. Accordingly, the result of the disputed election hinged upon the qualifications of the voters. The Committee found that seven of Wager's supporters were not freeholders and ruled out only three of Tabb's votes. By these subtractions Tabb was seated by a plurality of one over Wager, who had originally polled a three-vote lead.²

Defeated in this somewhat typical campaign, George Wythe watched for two years from the outside the sessions of the Burgesses elected in 1756. That, as has been previously intimated, was the only House between 1748 and the Revolution with which he had no official connection.

The activities and attainments of the third decade in George Wythe's life have thus been reconstructed as fully as authentic sources permit. To complete this review of those years only one consideration remains. An uncomplimentary legend, base in its implications, cannot be ignored.

1. Ms. of George Wythe, July 10, 1755, Roberts Autograph Collection, Haverford College Library.

These recent defenders of Wythe's personal conduct have pointed out the probability that his distinctions in the House of Burgesses, success in the county courts, and appointment as Attorney General could not have come to a conspicuous degenerate or to any one of the greater-than-average self-indulgence &mdash; and that is in itself convincing testimony against the allegation. But its details alone are inaccurate enough to puncture this fabricated story, which supplies a motive by stating that an orphaned George came by inheritance on his twenty-first birthday into the unprotected control of a sizable fortune, that he squandered it in a prodigal fashion. Indubitable refutation of such assumptions has been given within this chapter in the fact that George Wythe became his father's heir, by the intestate death of his older brother, only when he was approaching the age of thirty. Wythe never possessed enough wealth to have suffered its enervating influence.

positive that Wythe lived moderately, observing faithfully the rules of contemporary conventions and the dictates of his own conscience. One of his friends admitted, about six years after his death, that he had had a "natural" tendency to "instability" but recalled that it had been held in check "with a tight rein".¹ Others spoke of his "truly laudable" conduct in a "private life ... spent in the practice of social virtues, and in the enjoyment of much domestic felicity ...",² described his virtue as "of the purest tint", and attributed his "general good health" to "temperance and regularity in all his habits."³ To one of the very biographers who contributed to the spread of the falsehood of Wythe's alleged dissipation Thomas Jefferson had given, together with some information designed to serve as "landmarks to distinguish truth from error, in what you hear from others", assurance that "the exalted virtue of the man will also be a polar star to guide you in all matters which may touch that element of his character", adding on second thought, "but on that you will receive [<u>sic</u>] imputations from no man; for, as far as I know, he never had an enemy."⁴

It has been shown by his own admission that George Wythe neglected during his third decade some opportunities for the improvement of his scanty education. Of this fault he was never again guilty. Demands of public or private business made incessant inroads upon his time, but nothing could prevent the penetrating study of a man who developed, after his professional career had been established, the genuine love of learning for its own sake which is so essential a foundation for scholarship. The loss of hours spent less beneficially was redeemed a hundred fold within the next fifty years.¹ Indefatigable in his application, he became noted for a solidity and penetration which none of his contemporaries surpassed. Breadth of interest, too, characterized his self-education. In his later years he was respectfully dubbed "the walking library".² And when he died someone reflected that "there was no art or profession of which he had not a correct idea."³

3. "[[Virginia Gazette, and General Advertiser, 18 June 1806|Communication]]" signed "A.B.", Virginia Gazette, and General Advertiser, June 18, 1806.

primarily on the acquisition of facts and principles recorded by the writers of ancient Greece and Rome. The handicap of inadequate formal schooling and of only preliminary grammatical study at his mother's knee meant nothing to him, though they had together been barely sufficient to let him realize how unqualified for progress he was. On his own initiative and with no other tutor than himself, he plunged deeply into a discriminating absorption in the classics.¹

Rather early in this study he procured a volume of blank pages, average in size, not unlike a typical eighteenth-century lawyer's commonplace book, in which he recorded minute notes of his personal [[Etymological Praxis|research in the etymology of Greek and Latin words]]. About 150 pages of his book, which has been preserved, contain his comparisons of Latin equivalents with the original Greek text of Homer's <u>Iliad</u> and with other Hellenic literature. No better monument to Wythe's patient burrowings in linguistics can be imagined than this private product of his explorations in the original meanings of words,

Homer's immortal tale of the fall of Troy, however, was only a beginning. Wythe's mind ran the gamut of Greek and Latin poets, historians, and philosophers; with all of these whose writings he could obtain he became as familiar as he was with any English author, reading them with equal ease.³ Thomas Jefferson spoke of him later without reservation as

1. [George Wythe, [[Etymological Praxis|An Etymological Praxis]]], Virginia Historical Society Library. This Ms. quarto volume has no title page and is undated; but Wythe's characteristic handwriting constitutes a positive means to identification. The writer is of the opinion, on the basis of penmanship comparisons with Wythe's letters, that it was definitely of a period before 1765. The last six of its unnumbered pages contain a copy of biographical sketches of John Holloway and William Hopkins, colonial Virginia lawyers who died in 1734, transcribed by some one other than Wythe from Sir John Randolph's "Breviate Book". A letter of transmittal to the Society is pasted to its front cover. "I herewith sent you, the book which I promised you for your Society. It was (as I informed you) the property of the late venerable and learned Chancellor Wythe, and I believe is altogether in his hand writing [<u>sic</u>], although the character of the copy from 'Sir John's Breviate Book' seems to be different from that of the Greek and Latin. Much of the largest portion of the book is a Clavis Όμηρου, or Etymological Praxis, on which several of the books of the Iliad, and some of the παχωίδία<ref>As Hemphill did not possess Greek characters on his typewriter, these characters were originally added to the [[Media:HemphillGeorgeWytheTheColonialBriton1937.pdf|dissertation]] in pen (18MB PDF).</ref> which will serve in a striking manner to illustrate the great industry of that distinguished man": [[John Page, Jr., to James E. Heath, 3 January 1834|John Page to James B. Heath, January 3, 1834]]. The existence of this Ms. has been previously commented upon only by Grigsby, [[Virginia Convention of 1776|<u>Virginia Convention of 1776</u>]], 120, who cited it as evidence that Wythe's accurate familiarity with Latin and Greek began in middle life. The two biographical sketches were reprinted in <u>The Virginia Historical Register</u>, I, 119-123.

"the best Latin and Greek scholar" in Virginia,¹ and a contemporary who was better qualified than Jefferson to pass judgment in literary matters asserted that his attainments in the classics had rarely been equaled in all the American colonies and states.² Or, as still another contemporary put it, he labored delightedly "not only through an apprenticeship, but almost through a life in the dead language."³ A rather recent figure in the world of American letters boasted that he owned a rare [[Anacreontis Carmina cum Sapphonis, et Alcaei fragmentis|1757 edition of the odes to Anacreon, Sappho, and Alcaeus]], which had once been in the library of George Wythe.⁴ If anything, he carried too far his love of ancient scholarship, which became increasingly as he grew older his pride as well as his joy. Conversation and correspondence he naturally enriched with quotations, but there is a limit at which the foible of classical quotation borders upon pedantry pure and simple. Any Wythe appears never to have hesitated to sprinkle even the most technical legal opinions and decisions with excerpts from his studies, to the utter consternation of less learned associates who could not

1. <u>Ibid</u>.; Cooke, "George Wythe", Manuscript Biographies Collection, Pennsylvania Historical Society Library. An excellent portrait in the lobby of the George Wythe Hotel, Wytheville, Virginia, pictures him at an earlier age than any other &mdash; apparently at about thirty-five. The [[George Wythe House|Wythe House]] in Williamsburg houses a handsome Turnbull [''sic''] semi-profile painting of a somewhat later date. A [[:File:Leney1807Wythe.jpg|full-profile by Longacre]], originally painted in the missing issues of <u>The American Gleaner, and Virginia Magazine</u>,<ref>The original portrait in the 1807 ''American Gleaner'' was created by [[:File:Leney1807Wythe.jpg|William Satchwell Leney]], not J.B. Longacre. Longacre's engraving is labeled as being based on "a Portrait in the American Gleaner," but was created for Sanderson's [[Biography of the Signers to the Declaration of Independence]], c. 1823.</ref> is definitely applicable only to Wythe's old age and is very widely available through engraved copies in publications and libraries. Mrs. Catherine Carter Critcher of Washington, D. C., a collateral descendant, presented to the Wythe House in 1927 an original oil painting done from the [[:File:LongacreWythe.jpg|Longacre model]]. In the Wythe House there is also a small circular profile, giving the impression of a semi-caricature, done by the famous elder Peale with the aid of an extinct "profilograph" invention. In Wythe's last years he became stooped and thin.

The legal profession in Virginia, as in England's other American colonies during the seventeenth century, was a casual or struggling one. Advocates were despised or regarded with suspicion; litigation ran uniformly along channels of the simplest actions in debt and trespass; and the practise of law was frequently a mere avocation by which untrained merchants and landowners protected their commercial interests. It was only after 1700 that the bar in Virginia began to bud with learned and respected names,¹ and it was not until 1750 that the bud blossomed into full flower. During the quarter-century preceding the end of the colonial regime lawyers developed in Virginia's General Court who were in every respect at least equal to the best produced in other colonies, if indeed the Virginia bar of that period was not distinctly superior to any of the others.²

The preceding chapter has shown that George Wythe was

admitted to practise in the General Court some time before May, 1755. For two decades or more the advocacy of causes before its bench, composed of the members of the Council with the lieutenant-governor or governor as presiding judge, furnished Wythe's principal income and his chief occupation. This supreme tribunal convened in Williamsburg only twice each year, in April and October, for sessions continuing about two weeks each; but long intervals between terms were not vacations for the scholarly Wythe, who had so much success in attracting clients that months of intensive research and preparation were required for him to do justice to them all.

Thomas Jefferson, who joined Wythe at this bar in its later days, pronounced him unqualifiedly as the greatest of its members during the second of the two decades in which Wythe practiced there, "taking into consideration his superior learning, correct elocution, and logical style of reasoning."¹ This could have hardly have been true of the ten years before 1765, for one could not leap suddenly into the leadership of such a company of legal giants. Though Wythe "soon became eminent among them", advance to priority over such colleagues could come only "in process of time."² Four men, only one of

The titular head of the group was Attorney-General Peyton Randolph. A son of the much respected Sir John Randolph, Peyton had been educated at William and Mary, Oxford, and the Inner Temple. His appearance was extremely gentlemanly, his manners friendly to all but strangers, his nature conciliatory; his mind was sound enough and his arguments substantial enough to counterbalance fully an utter lack of the arts and graces of eloquence. His frame carried some excessive weight, and the resultant physical inertness became characteristic of his mental habits &mdash; "he was rather indolent and careless for business, which occasioned him to get a smaller proportion of it at the bar than his abilities would otherwise have commanded." Beginning in 1748 he drew for some time a steady salary as the government's chief prosecutor, except for a year in which Wythe supplanted him; thus "he did not seem to court, nor scarcely to welcome business."¹

John Randolph (<u>b</u>. 1727), younger brother of Peyton, was another of the principal practitioners in the General Court. The advantages of experience in the Inner Temple, following an education at William and Mary, had also been his. Like his brother, he lived in Williamsburg, but in politics he was generally more conservative and a bit less distinguished than Peyton. During a large part of the latter's tenure as Attorney

1. Biographical Sketch of Peyton Randolph, Bergh, ed., <u>Writings of Jefferson</u>, XVII, 139.

Edmund Pendleton was a fourth lawyer who attained a dominant position at the bar of the General Court, and to investigators of Wythe's career he is much the most interesting colleague Wythe ever had. In all the history of Virginia there have never been two lives which presented so many striking parallels and contrasts as did those of Wythe and Pendleton. Throughout more than half a century in public service they were engaged almost incessantly in the same political, legal, and judicial activities. In a series of many issues which confronted them, however, they were rarely aligned on the same side of any question, and even in those instances they reached the same opinions by substantially diverse mental paths. Rivals for every kind of official preferment for fifty years, no genuine antipathy ever really existed between them, though each upheld tenaciously his principles against the other's attacks until the very day on which Pendleton preceded Wythe to the grave by three years. Theirs was an absolutely unique relationship, and its inherent drama was intensified by the fact that its similarities and conflicts became

of the legal profession. Two or three years later he became clerk of the vestry of St. Mary's Parish; his earnings as such he claimed to have devoted to the purchase of a few books, presumably law treatises, which he "read ... very diligently".¹ As his term of servitude to Robinson was approaching its conclusion, he gained his master's consent to enter the bar. In April, 1741, he received a license to practise after an examination by Edward Barradall,² and in the following month he was sworn as an attorney in Caroline.³ A year and a half later he was admitted with Zachary Lewis to plead causes before the Spotsylvania bench.⁴ It was probably in 1746 or 1747, at one of these two county seats, that Wythe first became acquainted with him. Pendleton had married a short time before he was quizzed by Barradall, but his first bride had died before a year elapsed, as did Ann Lewis Wythe.⁵ A few years later Pendleton married a second time, as Wythe was to do, and each of them survived his

3. Entry of May 8, 1741, <u>Order Book</u>, <u>1740-1746</u>, 42, Caroline County Record.

second wife by a number of years, dying without issue. In 1751 Pendleton became a judge of the Caroline court, and for many years he was its presiding justice, as Wythe was over that of Elizabeth City County. Pendleton became a burgess for Caroline in 1752, two years earlier than Wythe's promotion to the floor of the House from his clerkships to standing committee. His entrance to the bar of the General Court, however, preceded Wythe's by almost a decade, for he became an advocate before that bench in its October session of 1745.¹ His success there far exceeded that of any other practitioner who lived more than a few miles from Williamsburg.

to Elizabeth City County, Wythe wrote in the next year the following letter (which is the first from his pen now extant and available) to a client in northern Fairfax County:

Your suit agt. West is set for trial [on] the 10th day of [the] next [General] court. I have directed a subpoena to be inclosed, if Mr. [Edmund] Pendleton or Mr. [Robert Carter] Nicholas has not sent you one, for summoning your witnesses, since your adversary insists on a special verdict, in stead [sic] of the case intended to have been agreed last court. You may know of him I suppose what facts he desires to prove, and [to] which to agree.¹

In 1758² and again in 1760³ Wythe was co-counsel with Robert Carter Nicholas for Col. George Washington in matters relating to the latter's titles to certain tracts of land. A receipt given by Wythe in acknowledgment of payment for his services by another client indicates that he was business-like in his financial dealings: "Received Oct. 26th 1763 of mr Towles fifty shillings, my fee for defending the suit brought against

Wh[ereas] I am inform'd, that John Davis did this day suffer and permit, unlawful [<u>sic</u>] gaming in his house (being an ordinary [tavern]) contrary to the Acct [<u>sic</u>] of Assembly in that case made and provided &mdash;<br />These are therefore in his Majestie's [<u>sic</u>] Name to require before me or some other Justice for the said County to answer the [above] Premises [charges] Given under my hand this 10th day of September 1761 &mdash; <div align="right">George Wythe</div>To

:The Sheriff of Londoun

2. Ms. in the New York City office of The Rosenbach Company in December, 1936.

3. Londoun had been constituted a separate county in 1757. The only genuine Wythe autograph recalled by the writer to have been signed "George Wythe" (instead of the usual "G. Wythe") is that on the Declaration of Independence, which would be a counterfeiter's most available source.

A hint that Wythe met financial success in his General Court practise is given by two records of business transacttions in Elizabeth City County, which show that he had enough ready cash to expand his property by rent and purchase. His inherited lands were evidently deemed insufficient by him. Probably he found that his overseer could farm profitably a substantially larger territory than "Chesterville" afforded. Thus it was that he secured in 1760 from the trustees of the Syms Free School a lease under whose terms he was to have the use of all but one of the 200 acres left for the school by the will of Benjamin Syms. In addition to an annual rental of <s>L</s>30 5s, Wythe contracted to supply four milch cows for the use of the school several months each year, to plant an orchard of 100 trees, and to leave in good repair any buildings which he might erect on the leased land.¹ How many years he maintained this lease-hold is not a matter of record. In 1763, however, he added 40 acres by patent to those in he county which he owned outright.²

So far as is known, Wythe was constantly one of the lawyers at the bar of the General Court who were chosen to com pose the board of examiners for embryo attorneys. In this capacity there appeared before him early in 1760 a rather uncouth and unprepared young man, who had failed miserably in a merchandizing venture as he proprietor of a country store in upland Hanover County and had turned to the law because he might be able in that profession to secure remuneration for his ability to talk. His name was Patrick Henry. Through his application for a certificate attesting his qualifications and licensing him to practise in the county courts, Wythe undoubtedly received his first introduction to a man who was more than any other his total antithesis, and with whom he was to be upon no known occasion in anything approaching even a virtual agreement. Henry had read law for only a very short while, perhaps about six weeks, and promises of diligent future study on his part seem to have been necessary to secure the approval of some of his examiners. An impression that Wythe refused resolutely to sign his license has

prevailed without exception among Henry's biographers,¹ but a county court record disproves this misconception.² In his more vindictive moments Wythe may have later regretted his share in promoting young Patrick's entrance into the professsion in which Henry found himself.

Patrick Henry was not the only young man of large later influence who travelled to Williamsburg early in the year 1760. There was another, a mere lad of about seventeen years, in whom Wythe seemed to detect a greater, more solid genius and a more congenial personality than he had found in the illprepared applicant whose license he signed. The name of this rather freckle-faced, red-headed, and gangling youth was Thomas Jefferson.

stay and under circumstances more favorable than Henry's. His father, Peter, an outstanding colonial surveyor and a justice of Albemarle County, had died three years earlier, leaving "Shadwell" and a sizeable estate, though not quite enough to assure his son of independence from the necessity of becoming a breadwinner. His mother was a first cousin of the Randolph brothers, Peyton and John, and related to other socially prominent families of the eastern Tidewater. The advantages of adequate elementary instruction had not been denied him, and for the two preceding years his teacher in the classics had been Rev. James Maury, whose name is famous as an Anglican rector and more famous as Virginia's preeminent private tutor. With this superior background he enrolled early in 1760 as a student in William and Mary.

A few weeks before Jefferson took that momentous step he argued with himself, in a letter asking for his guardian's approval, the pros and cons of further formal study, foretelling accurately that "by going to the College, I shall get a more universal Acquaintance, which may hereafter be serviceable to me ...."¹ It was an intelligent prophecy; yet its

1. Thomas Jefferson to John Harvey, January 14, 1760, Bergh, ed., <u>Writings of Jefferson</u>, IV, specially printed on an insert between 268 and 269. An interesting picture of his feelings fifty years later along the same line is given in a letter of very paternal advice to a grandson. "When I recollect the various sorts of bad company with which I associated from time to time, I am astonished [that] I did not turn off with some of them, and become as worthless to society as they were. I had the good fortune to become acquainted with very early with some characters of very

First among Jefferson's significant and intimate friends outside the circle of his classmates was Dr. William Small (<u>d</u>. 1775), a Scot who held from 1758 to 1764 the professorship of mathematics and chair of science, which educators then usually designated natural philosophy.¹ In a faculty consisting largely of clerics, Small was the outstanding member. To Virginia he brought a reputation for thorough training in the learning of European universities, an extensive and costly experimental apparatus, and a very scholarly knowlede of the exact sciences. Previously educational studies in the colony had been confined almost exclusively to history, the languages, and other subjects classified among the arts. Small popularized among curious Virginians for the first time inquiries into the higher types of mathematics, into atronomy, and into physical principles;² his influence may be detected, for example, in the exciting attempts of William and Mary students and professors late in the century to make balloons ascend by suspending a fire under their open bottoms.

high standing, and to feel the incessant wich that I could ...become what they were. Under temptations and difficulties, I would ask myself what…will insure me their approbation? I am certain that this mode of deciding on my conduct, tended more to correctness than any reasoning powers I possessed": <u>id</u>. To Thomas Jefferson Randolph, November 24, 1808, <u>ibid</u>., XII, 197.

John Page, one of Jefferson's collegiate chums, fell completely under the spell of Small's enticing studies. He gloried in the subsequent renown of his illustrious professor as "the great Dr. Small, of Birmingham, the darling friend" of Erasmus Darwin, a British scientist who was Charles Darwin's grandfather, and he shifted his intellectual interest abruptly under Small's tutelage from military and naval history to mathematics and astronomy.¹ To American educational method Small made an epochal contribution by being the acknowledged pioneer in the introduction and by discarding for his purposes the typical textbook recitation.²

3. "Autobiography", Bergh, ed., <u>Writings of Jefferson</u>, I, 3.

elevated courses of study", and recalled that, "from an extraordinary conjunction of eloquence and logic", he had been able to teach his students "with great effect." "Dr. Small", Jefferson affirmed, "was … to me as a father. to [<u>sic</u>] his enlightened and affectionate guidance of my studies … at College I am indebted for every thing [<u>sic</u>]";¹ and upon another occasion the grateful pupil wrote: "He, most happily for me, became soon attached to me, and made me his daily companion when not engaged in the school; and from his conversation I got my first views of the expansion of science, and of the system of things in which we are placed."²

Wythe was Small's "bosom friend";³ they were "inseparable". And it was undoubtedly in reference to the fact that the professor procured for his pupil Wythe's "patronage" that Jefferson could look back upon his contact with the Scotch educator as the thing which "probably fixed the destinies of my life ...."⁴ For Jefferson graduated from the College in 1762, and Small returned to England two years later; but the young graduate's intimate association with Wythe continued for about two decades in actuality and was never interrupted in spirit until Wythe's death.

2. "Autobiography", Bergh, ed., <u>Writings of Jefferson</u>, I, 3.

There was also a third man whose friendship Jefferson valued much. By Small and Wythe Jefferson was introduced to Francis Fauquier,¹ a "highly enlightened" official who had come to Virginia as successor to Lieutenant-Governor Dinwiddie in the same year that Small had taken over a professorship in the College. He was a man of "much greater learning and judgment" than his predecessor, whose lack of education had prompted an artificial fondness for appearing to be a patron of learning.² To Fauquier, who was a fellow of the Royal Society of England,³ this role was utterly natural, not a thing to be simulated. After two or three years Fauquier's family gave up its residence in the colony, and he lived the life of a wealthy bachelor in the handsome Governor's Palace, which could thus be devoted unrestrictedly to almost any use his fancy might suggest, including informal weekly concerts by violinist Jefferson and several other amateur musicians.⁴

instruction";¹ again, he stated almost boastingly that these men "admitted me always to make it a partie quarrée" [<u>sic</u>] [<u>i.e</u>., party of four], observing in conclusion that "at these dinners I … heard more good sense, more rational & philosophical conversations than in all my life besides. they [<u>sic</u>] were truly attic [<u>sic</u>] societies."² Yet Jefferson, then about twenty years old, was in some measure entitled to exult over his acceptance on a basis approaching equality in the society of Fauquier, then about fifty-five, of Small, then about forty-five, and of Wythe, then about thirty-five; the disparity in ages is sufficient excuse for he pardonable vanity with which the youngest of the quartet told of their social and intellectual companionship. Just how long this association continued cannot be determined, though it would seem that all four met intermittently during 1761 and 1762.³ But there can be no doubt as to its benefits for the student Jefferson. Few facilities at any spot upon the globe could have equalled the opportunity for the acquisition of culture, for a liberal education, and for abstract lessons in the

1. "Autobiography", Bergh, ed., <u>Writings of Jefferson</u>, I, 4.

rights of man which Jefferson found in intimate acquaintance with this trio of inspiring elders. From Small, the experimental scientist, he might absorb that unquenchable thirst for practical knowledge in largely uncharted fields of natural science which was to find so many expressions in his public career and private life. Fauquier, the courtly and experienced man of the world, might instill in him the charms of cultured society, a taste for intellectual conversation, and the attributes of governmental authority properly administered. From Wythe, the self-educated but scholarly lawyer, he might derive a love of learning for its own sake, the logical method of approaching every problem with assurance that reason should prevail as the sole criterion for weighing its alternatives, and that familiarity with the great principles of jurisprudence and democracy which was to enable him to become a foremost reformer of American political and social institutions. His biographers without exception have rightfully extolled the influence of these three men upon their impressionable protégé; some of them are inclined to interpret him as but a disciple of the distinctive merits of cach, declaring that scarcely any phase of his exceptionally versatile interests cannot be traced to an origin in one or another of those with whom he chatted at Fauquier's table.¹

from William and Mary late in the year 1762. But liberal tuition under Dr. Small's inquiring guidance was supplanted by the great advantage of professional training under the capable eye of Wythe, who remained Jefferson's closest associate throughout all his formative years. In the thankful words of the young graduate himself, Small "filled up the measure of his goodness to me, by procuring or me, from his most intimate friend, George Wythe, a reception as a student of law, under his direction."¹ It has been remarked as curious that this opening should have been accepted by a kinsman of Peyton and John Randolph, either of whom might well have become his legal instructor.² Whatever the explanation of Jefferson's preference for Wythe, he never found cause to regret his choice &mdash; though those who think speculation on the "ifs" of history profitable might enjoy a perfect revelry of guess-work by applying their deliberations to the profound possible changes in the course of American development had Jefferson fallen directly under the influence of a conservative Randolph brain instead of Wythe's more progressive mind. For the next four or five years Wythe was to Jefferson what Stephen Dewey had been to Wythe some twenty or twenty-five years earlier; but the shoes of a legal mentor fitted Wythe

1. "Autobiography", Bergh, ed., <u>Writings of Jefferson</u>, I, 3.

better than they had Dewey, and his more inspiring instruction met a more grateful response in Jefferson.

For a year, however, the mind of the legal aspirant was sorely distracted from serious study by thoughts of a young lady, Rebecca Burwell by name, with whom he had fallen completely in love. Wythe saw to it that he had a copy of that admirable standard treatise upon which the bar of the day was nurtured, <u>Coke upon Littleton</u>. After preliminary perusal of its pages, the young graduate set out for a winter to be spent at his home in digesting more thoroughly the observations of Sir Edward Coke (1552-1634). Christmas found him a day's journey from "Shadwell" and in a very despondent frame of mind. He awoke that morning to find himself the victim of several overnight misfortunes, including the theft by rats of recently purchased sheet music of half a dozen minuets for his violin. Worse still, rain had seeped through a leak in the roof of his room and drowned his watch, whereby, as he expressed it, his timekeeper "had lost her speech". His ill-luck reached absolutely catastrophic proportions when, in an attempt to rescue from its place in the wet case of his watch his picture of the fair Rebecca, he tore irreparably the thoroughly soaked paper upon which hat priceless portrait had been reproduced. At a loss for any other adequate explanation, Jefferson attributed this almost unbearable series of calamities to a satanic curse upon him and eased his pain by writing to a chum, John Page, a comically pathetic description of these exaggerated mishaps and of his sad recollections of the gay friends from

And now, although the picture be defaced, there is so lively an image of her [Rebecca Burwell] imprinted in my mind, that I shall think of her too often, I fear, for my peace of mind; and too often, I am sure, to get through old Coke this winter; for God knows I have not seen him since I packed him up in my trunk in Williams burg. Well, Page, I do wish the Devil had old Coke, for I am sure I never was so tired of an old dull scoundrel in my life. What: are there so few inquie tudes tacked to this momentary life of ours, that we must need be loading ourselves with a thousand more? Or, as brother Job says, (who, by-the-bye, I think be gan to whine a little under his afflictions,) "Are not my days few? Cease, then, that I may take comfort a little before I go whence I shall not return, even to the land of darkness, and the shadow of death." But the old fellows say we must read to gain knowledge, and gain knowledge to make us happy and admired. Mere jargon! Is there any such thing as happiness in this world? No. And as for admiration, I am sure the man who powders most, and talks most nonsense, is most ad mired. Though to be candid, there are some who have too much good sense to esteem such monkey-like animals as these, in whose formation, as the saying is, the tailors and barbers go halves with God Almighty; and since these are the only persons whose esteem is worth a wish, I do not know but that, upon the whole, the advice of these old fellows may be worth following.¹

promise of entertainment or instruction as the outside of a gold mine does of the wealth within."¹ Jefferson formulated a tentative plan for returning to Williamsburg late in the spring of 1763;² it failed to materialize. But by mid-summer he was certain that he would be in the capital again when the General Court met for its October session.³ He had a report to make to Wythe on his progress in perusing Lord Coke, and of the privilege of hearing the instructive arguments of his mentor and other advocates before the colony's supreme tribunal he wished to take full advantage.⁴ But his objects in making the trip did not exclude social interests, for he had long anticipated the visit as an opportunity to press his suit for Rebecca Burwell's hand.⁵ En route eastward, he reflected in a letter from Richmond, "I do not like the ups and downs of a country life: today you are frolicking with a fine girl and tomorrow you are moping by yourself. Thank God! I shall shortly be where my happiness will be less interrupted." He was willing to confess high

hopes to his classmate, William Fleming:

But Jefferson had romantic, youth-like dreams, too, of fitting out a sailing craft as a means to cross the Atlantic for extensive European travels, and settling down in stable domesticity was an enviable goal which could wait the satiation of his wanderlust.² Thus, when he made upon two occasions the intended preliminary overtures to his Rebecca, they constituted at best only a conditional proposal.³ He had some months of anxious suspense,⁴ and when his answer was finally received late that winter, it came in the form of gossipy assurances that the lady who had won his heart would soon be married to another suitor. With more resignation than his previous ardent letters on the subject would have led one to expect in him he wrote to Fleming the following account of his

with regard to the scheme which I proposed to you some time since, I am sorry to tell you it is totally frustrated by Miss R. B's marriage with Jacqueline Ambler which the people here tell me they daily expect: I say, the people here tell me so, for (can you beleive [<u>sic</u>] it?) I have been so abominably indolent as not to have seen her since last October; whereupon I cannot affirm that I know it from herself; though [I] am as well satisfied that it is true as if she had told me. well the lord bless her I say! but S&mdash;&mdash;y P&mdash;&mdash;r is still left for you. I have given her a description of the gentle man who, as I told her, intended to make her an offer of his hand, and asked her whether or not he might expect it would be accepted. She would not determine till she she saw him or his picture.... (mind that I mentioned no name to her.) you say you are determined to be married as soon as possible: and advise me to do the same. no, thank ye; I will consider of it first. many and great are the comforts of a single state, and neither of the reasons you urge can have any influence....¹

To absorption in Coke's worthy treatise the jilted Jefferson turned as to a welcome analgesic. In a sense in which the term could not previously have been used, law became his mistress in 1764; he applied himself to the task of

Beginning in 1764 Jefferson usually spent his winters in Williamsburg, retiring each summer from the routine of "devilling" for Wythe and the tedium of stowing away in his memory or notes requisite gems of legal precedent to the less exacting, contemplative life of "Shadwell", his Albermarle County home. His closest friend in that section of the colony was his neighbor, Dabney Carr, who had attended William and Mary as one of his contemporaries. They were constant companions during the two or three hot months, and thereby hangs a heartwarming tale of the fidelity of man to man. Like Jefferson, Carr was studying law; both were mentally alert and clever, both devoted to reading. They were accustomed to go and each

morning to a rustic seat which they had constructed under a huge oak in a favorite and cool nook of the ancient forest, atop a small mountain some two or three miles from "Shadwell", and there to spend blissful days in meditative reading or earnest conversation. To commemorate the fellowship of those priceless hours, they entered solemnly into a compact that he who survived the other should bury the first to due under that oak which marked their haven. A few years later Carr married Jefferson's sister and was a colleague of his brother-in-law in the House of Burgesses, but he died in less than a decade, before he had been able to do much to perpetuate his name.¹ Jefferson, who had begun in the meantime to build upon that mountain, three or four hundred yards away, his matchless home, "Monticello", was true to the terms of their agreement; and the spot became in time also the place of his burial. To it thousands from every corner of the earth have made their pilgrimages, unaware of the faithfulness of him they honor to youthful vows with a chum that their wooded retreat should be forever hallowed with their dust as a symbol of the best in friendship.² Quite aside from the fact that the study and intelligent discussion in which Jefferson and Carr thus

indulged must have often included great legal principles, a sequel to the story of their summers together is of immense interest in Wythe's life, for when Jefferson was directing from abroad twenty years later the education of [[Peter Carr|Dabney Carr's son]], he counted it the highest possible earthly blessing that his nephew should be under the instruction of George Wythe.

Wythe's continued guidance and his own good sense led Jefferson after 1763 to revise drastically his jesting characterization of Lord Coke, that giant of British jursiprudence,¹ as a "dull old scoundrel". Coke's interpretation of the English constitution may have played a part in moulding his political thought. So far as the analogy was applicable to American institutions after 1789, he built his democratic party upon principles which correspond in a general way to Coke's; and when those principles began to lose their sway in the government of the United States, he ascribed their decline partially to the fact that Coke's textbook had been cast into virtual discard and that later legal generations had been reared upon the renowned [[Commentaries on the Laws of England|<u>Commentaries</u>]] of [[wikipedia:William Blackstone|Sir William Blackstone]],² whose really dull lectures at Oxford on the same materials were largely unsuccessful.

But it was not upon Coke alone that Wythe fed his pupil; Jefferson progressed early to less elementary studies. Doubtless he had access to Wythe's large library, and he certainly could command enough ready cash to purchase the books which he needed most. Thus he asked of a friend the loan of a compilation of English statutory law until he could procure a copy of his own.¹ There could be little superficiality about training in his mentor's law office; he learned there to look down with utter contempt upon a mere smattering of knowledge. The whole range of civil and common law passed under his review, and neither he nor his teacher was content till he had traced painstakingly every principle to its remotest origin in the Roman system or in the period when good King Alfred had ruled the Saxons. Among others, he explored the formidable treatise on ancient English laws written in Latin by [[De Legibus et Consuetudinibus Angliae|Bracton]], a contemporaneous interpreter of Magna Charta. The whole enormous volume of early and recent British jurisprudence, as recorded in texts and commentaries, in rude ancient tongues and in the modern vernacular, became Jefferson's possession.² When circumstances later in his life afforded him

2. "Autobiography", Bergh, ed., <u>Writings of Jefferson</u>, I, 4. <u>Cf</u>. the similar statement made in correspondence, "I became acquainted with Mr. Wythe when he was about thirty-five years of age. He directed my studies in the law, led me into business, and continued, until [his] death my most affectionate friend": Thomas Jefferson to John Sanderson, August 31, 1820, Jefferson Papers, Library of Congress.

That Jefferson did not relinquish under the exigencies of practise habits of thorough study is quite adequately indicated by his commonplace book, a manuscript volume of more than 300 pages which he filled with the results of his labors. Though it had long been known to exist among his preserved papers, partial appreciation of its value did not come until a dozen years ago.² Perhaps somewhat unfortunately, the date of its beginning cannot be exactly and indubitably determined. If Jefferson's memory be accepted as literally accurate after fifty years, he started to jot down its notes in 1764, upon completing his perusal of Coke's primer.³ Exhaustive research

on the question has failed to reveal any confirmation of that recollection; it can be established that only two-thirds of the volume was penned while Jefferson was a student or practitioner of law, and that nearly all of the remaining third was written in one or both of the years 1775 and 1776.¹ There is, however, no particular reason to doubt that Jefferson remembered well the time of the initiation of a book in the writing of which he spent countless hours. Yet, to be on the safe side, let it be assumed only that its first section was recorded some time before 1775 &mdash; it matters relatively little in the final analysis whether it was begun before or after 1767, for in either case the volume undoubtedly represents strongly Wythe's influence.

Whatever the dates of its synopses, the commonplace book shows that Jefferson, as a student or as an attorney, made a long series of abstracts from parts of three and four of Lord Coke's <u>Institutes of the Laws of England</u> and from the reports by William Salked, George Andrews, and Robert Raymond of decisions handed down within the last hundred years by judges of the King's Bench. In his reading of these materials

Jefferson ran the gamut of weighty opinions in complicated suits of inheritance and trespass, for masters' remuneration of their servants' misdeeds, and for debts contracted by wives without their husbands' knowledge. Extracting from these works all information which might prove serviceable to him in routine business, he wrote notes for reference on more than five hundred separate articles.¹ The succeeding section of the book, written between 1774 and 1777, was based, in keeping with Jefferson's growing interest in politics, upon more philosophical legal materials, including [[Historical Law-Tracts|Lord Kames' fourteen <u>Historical Law Tracts</u>]] (first published in 1758), [[Essay Towards a General History of Feudal Property in Great Britain|Sir John Dalrymple's <u>Essay towards a General History of Feudal Property in Great Britain</u>]] (London, 1757), and [[History of the Common Law of England|<u>Hale's History of the Common Law</u>]] (London, 1716). Studies in these works gave him confirmation for his theories regarding the natural rights of man and legal precedents for his program of a complete revision of Virginia's entire constitution and code just after the proclamation of her independence &mdash; a campaign in which Wythe was to be his closest associate and firmest ally.²

Early in the year 1770 a catastrophe struck the young lawyer with the typical suddenness and destruction of fire; "Shadwell" burned, and the ruinous flames enveloped nearly all his possessions. To his friend, John Page, he wrote this pathetic account of the accident:

I send you some nectarine and apricot grafts and grapevines, the best I had; and have directed your messenger to call upon major [Richard] Taliaferro for some of his. You will also receive two of Toulis's catalogues. Mrs Wythe will send you some garden peas.<br />

The character of the bar of the General Court during the final decade of its colonial existence underwent comparatively few significant changes. Robert Carter Nicholas dropped out of its rank and resigned his practise, for, as will be noted in another connection, he rescued in a self-sacrificial manner the office of Virginia's treasurer from less respected and less competent hands when a vacancy occurred in 1765. The reputations of Wythe and Pendleton, in relation to those of the two Randolphs, were constantly on the ascendancy, if there was any change at all in the ranking of its leaders; the two self-educated lawyers were more likely after 1765 to be named before their English-trained colleagues in contemporary enumerations of its personnel. But competition of members in the lower bracket was rather futile, despite occasional infusion of new blood in such talented persons as Jefferson and Patrick Henry.¹ Perhaps the most striking advance achieved by any of the older minor advocates was that of Thomas Mason (1733-1785), younger brother of the famous George Mason and a

former practitioner in the Middle Temple.¹ Though not unchallenged, the position of Wythe, Pendleton, and the Randolph brothers remained impregnable.

It may well be lamented that so little is known about the activities of these men in a court which was admittedly resplendent with the colony's ablest minds. Shafts of imposing logic and darts of illogical oratory must have rent the air of that old courtroom in the capitol building as &mdash; in the utmost efforts to win advantages over each other in the eyes on the gallery, jury, and members of the Council sitting in their judicial capacity &mdash; those giants of the bar mustered every legal precedent and stratagem they knew. Dockets and other papers of the court, with a few scattered exceptions, have met destruction of one kind of another in subsequent years, and it never had in the modern sense of the term an official reporter to record its proceedings. After his admission to its bar, however, Jefferson took notes on some of its principal cases which illustrated litigation arising exclusively under the colony's own enactments. Found among his papers by his executor, this manuscript was posthumously published.² Eleven suits, adjudged between the sessions of October, 1768, and October, 1772, inclusive, were included in his informal, uneven notations. For two of these he did not

1. Freeman H. Hart, "Thomson Mason," <u>Dictionary of American Biography</u>, XII.

name the lawyers for either party, but Wythe appeared as counsel for plaintiff or defendant in seven of the remaining nine cases which Jefferson thought worthy of brief memoranda; Pendleton argued in six, John Randolph in four, Thomson Mason in three. Judgment seems to have been given in favor of four of Wythe's clients and against two, with a verdict in the seventh case which awarded him the decision on one point involved in the suit and his opponents the decree on the other side of its issues. In one of these trials Wythe teamed with Pendleton to defeat a cause upheld by John Randolph and Thomson Mason, but in four of them Pendleton pleaded on the side opposite to Wythe, twice with John Randolph's assistance. These four ended in two victories for Pendleton and one for Wythe, with their laurels equally divided in that on which the court handed down two verdicts.¹ Though it must not be forgotten that they are tabulated from reports on only a small minority of the suits in that tribunal during that period, these figures are interesting as a sample which might or might not be representative if statistics were available for all. For the sake of enriching a later comparison between the two men on other observation must be mentioned: Pendleton was sole or associate counsel in each of the two cases which Wythe lost.

his appeals, to wrest from its context a single plea directed by Wythe to the court, for he was not addicted to useless declamation on points lacking pertinence to that at issue and the able train of his thoughts has probably suffered through Jefferson's condensation. Even in that compressed form, however, his debates retain uncommon lucidity and strength. For example, in one of his suits he undertook to prove that slaves were not subject to inclusion in the law of entails (by which inheritance was restricted under the primogeniture principle) unless they had been definitely, legally, and inseparably annexed to an entailed tract of land. His opponents who could not show such a connection for the slaves whose custody they sought to gain from his clients, attempted to plead that the slaves had been made to labor on that land and that their labor was therefore exercisable in it. Wythe retorted, "… this exposition of the word exerciseable is superficial indeed!" Then he reminded the court vigorously that the slaves were not exclusively limited to duties in that ground, citing a definition of "exerciseable" which Coke had given:

In another of his arguments he was forced to admit that, were judgment given in favor of his client, the result would be injurious to the opposing party, but he based his unsuccessful appeal upon the maxim that the considerations of public utility should be superior to resultant harm in individual instances, citing a Roman institution named Terminalia to this effect.² In another of his suits, his client had so much the best of the issue that the court awarded him the verdict before he had had an opportunity to answer the weak arguments of opposing council.³ In another, he was employed with Jefferson by the churchwardens and vestrymen of Upper Parish, Nansemond County, to prosecute their rector on charges of conduct unbefitting a wearer of priestly cloth and to secure the offending clergyman's dismissal. He proved by an interpretation of an act of the General Assembly that the

1. <u>Ibid</u>., 83-85

court had ecclesiastical jurisdiction, which he supposed was sufficient to show that the court possessed the power of depriving a cleric of his position. Jefferson feared that the right of deprivation might be a <u>non sequitur</u> and bolstered Wythe's argument by establishing that right on other grounds. Thus they won their cause together.¹ Illustration may be found in still another of Wythe's cases of his tendency to marshal an almost bewildering host of authorities in support of his views. In the course of an argument which Jefferson summarized in less than five printed pages Wythe's copious references included citations or quotations from four of Virginia's legislative acts, two British statutes, two English legal commentaries, two sections of Justinian's Roman code, a decision of an English court, and Cicero's orations.²

The court's usual progress in the settlement of the colonists' differences was interrupted with their own consent in 1766, for (as the next chapter will relate) nearly all Virginia's tribunals determined no cases in that year as a protest against a tax which England had levied upon legal documents. Evidence of the effect of their closure may be seen in his letter in February of that year to Richard Henry Lee, who had been trained for the bar but had preferred the life

of a planter in the northern Tidewater to that of a practitioner:

At the time I received your letter by col[onel] P[hilip]. L[udwell]. Lee I could not give it a satis factory answer, because the officers seldom make re turns of process so early in [the terms of] the court: and indeed the confusion which succeeded, with the total interruption of law proceedings, put that as well as most other matters of that sort out of my head. I am now at the secretary's office and find the second writ against J Rootes was not returned: and they will not let me have a pluries capias [a writ issued after two of the same purport have been successively issued without effect] til [<u>sic</u>] some thing is determined as to the stamps. The writs against Galloway were execu ted. One J Blackwell [posted] the bail for [his] appearance. The writ against Thornton was not executed; but a copy [of it was] left, so that we may have an attachment or a pluries capias awarded whenever we may be so happy as to see the course of judiciary business again open and free.¹

The protested bill of exchange you mention, drawn by mr Wm Thornton for 27-5-0 sterling, and endorsed by mr Galloway, is in my possession. The same day that I received it suit was commenced for mr Smith, who accepted the bill for the honour of the drawer. But partly by means of the stamp act, and partly by want of a sheriff in Brunswick [County] for some time, and the negligence of one who acted afterwards, it was so long before the process was returned executed that I cannot give you the satisfaction even of a conjecture when a judgment is to be expected. Mr Robb did speak to me on this subject, and desire me to prosecute the matter with expedition, and to acquaint him with the determination of it.

1. George Wythe to Richard Henry Lee, February 14, 1766, Lee Papers, University of Virginia Library.

George Washington continued to give Wythe the management of some of his legal affairs. In 1773 he wanted to buy from a certain William Black some lands in King William and King and Queen counties; the tract in the latter, variously called "Romonkocke" and "Woromoroke", he intended to present to a member of his wife's family, John Parke Custis. The difficulties which arose from that desire caused him much worry. Black stated his price, which Washington rejected, offering counter-proposals.³ When Black accepted these terms, Washington demanded of Black that all papers which proved the legality of Black's ownership of the two properties should

1. George Wythe to Richard Henry Lee, March 31, 1768, <u>ibid</u>.

I expect all the Papers respecting your Title to the Lands I purchased [agreed to purchase] of you will shortly be in Mr. Wythe's possession when he will be satisfied whether your Title is good or not and if he thinks you have a good title he will draw [up] a proper conveyance … [which you may sign to make the transaction final].¹

Wythe's report on the legality of the title was sent to Washington, but in the formal manner of an impersonal legal document it avoided the use of the pronoun "you" by referring to him as "Col. Washington". It is almost wholly unintelligible, no matter how carefully it is read and reread. Under even the best of conditions abstracts tracing the validity of real estate titles are involved enough to demand real study. In the case of this summary of Black's claims information essential to an understanding of its details is lacking. But the paper illustrates forcefully the thorough research required of Wythe in one phase of his practise. For that reason &mdash; and because every available item from his pen for the period under consideration is quoted in these pages &mdash; the document is reproduced herewith:

Col. Washington seemed to be satisfied as to the King &amp; Queen lands, which belonged to M^<u>r</u>. Story, without inquiring into the title before the date of his Will in 1717, if the title be regularly deduced from him. I think by the Will the estate devised to the daughter was a contingent fee, determinable by her death, without leaving issue or without having alien ated, so that the estate in fee, limited upon that event by executory devise, as she survived her child, and had made no alienation, took effect, and was well

M^r. Robinson, by a deed to him from Thomas Hickman and Barbara his Wife, 14^th Jan^y. 1734 purchased 600 Acres of Land adjoining Wyatts, sold to Story; Whether this be part of the Land agreed to be sold by Mr. Black to Col. Washington I know not, neither have I seen any other paper concerning it. the deed from Hickman, if he had a title, I think a good conveyance &mdash;

By act of general Assembly, [in the] 10[th year of the reign of King] Geo. the 3'd, some land in King and Queen County, purchased of Richard Johnson by M^r. Robinson, who with others claiming under him were in possession, was vested in William Lyne and some other Gentle men, in trust, to convey to such persons as claimed under M^r. Robinson, with a saving of the Titles of all persons other than those claiming under the will of a Testator who had devised to Richard Johnson the seller: whether the part reserved by Mr. Robinson be included in the Land agreed to be sold by M^r. Black; Whether the testator had a good title; or whether the Trustees have conveyed to M^r. Robinsons [<u>sic</u>] adm[inistrat]ors the part so reserved, which I think they the Adm[inistrat]ors were intitled [<u>sic</u>] to as a resulting trust, I can give no opinion, having seen no papers relating to these Matters.

If Romonkocke be part of the 1683 acres purchased by col: Bernard Moore from M^r. William Claiborne, &amp; from M^r. Robinson, who it seems derived his title from the Claibornes, as I suppose it is; and if Claibornes [<u>sic</u>] title be good, which I understand Col. Washington was satisfied with, and be properly deduced to Col. Moore, as, from what M^r. [Bartholomew] Dandridge says of the Wills of N Claiborne the Father and Son, and from his abstracts of the conveyances from the heir and Executors of the Claibornes, to Robinson, and from Robinson to Moore, I am persuaded it is; yet I am apprehensive there is still a chasm, having in vain searched in the Secretary's office for a Conveyance from M^r. Robinsons [<u>sic</u>] administrators, who had B. Moore's title, to M^r. Black: but this unquestionably may be supplied. I have the conveyance from Carter Braxton, T. Walker, T. Jefferson and Power to W. Black which is recorded in the Secretary's Office, but, without conveyances leading to it, [it] is insignificant.

Col. B. Moore's title being allowed, M^r. Blacks title to the 550 acres called Gooch's seems unexceptionable.¹

Having thus assured himself that Washington would be purchasing lands whose titles were irrefutable, Wythe drafted a deed by which the intended transfer of ownership might be made. But Black refused to sign that conveyance until Washington complied with stipulations which he added unexpectedly to their verbal contract.² In the dilemma thus created by the recalcitrant Black, Washington turned to Wythe for advice as to his method of procedure,³ and the whole tangled maze was straightened out in the space of a few months with Wythe's

2. Bartholomew Dandridge to George Washington, December 30, 1773, <u>ibid</u>., 297-300.

aid.¹ When Custis was planning several years later a sale of that portion of the property which Washington had acquired from Black and given to him, he asked for a general warranty of the validity of his title; Washington declined to make so sweeping a commitment, but he gave assurance that he had bought the land only "after having the title full investigated by Mr. Wythe"² &mdash; a reply which showed his perfect confidence in his lawyer. Wythe's word on that question had apparently allayed his doubts once and for all.

Another of the prominent Virginians in the northern part of the colony who is known to have been among Wythe's clients was Robert Carter of "Nomony Hall", a member of a thoroughly aristocratic family and a Councillor. As such, he was <u>ex officio</u> a judge in the General Court and thus in a position to know well the abilities of the lawyers at its bar. In 1772 Carter asked Wythe to secure a review by the Court of a permit granted by a county court to an applicant who desired to build a mill in a place which would injure some of Carter's property in Frederick County.³ Two years later he seems to

1. George Washington to William Black, January 17, 1774, <u>ibid</u>., 176-179; Bartholomew Dandrige to George Washington, February 16, 1774, Hamilton, ed., <u>Letters to Washington</u>, IV, 327-329; <u>id</u>. to <u>id</u>., April 2, 1774, <u>ibid</u>., 365-366; William Black to <u>id</u>., April 25, 1774, <u>ibid</u>., 375.

2. George Washington to John Parke Custis, May 26, 1778, FitzPatrick, ed., <u>Writings of Washington</u>, XI, 456.

3. "Dear Wythe, A few days ago I receiv'd a Letter dated 14^th. of last month, (September) subscribed John Hough, who is my Steward &mdash; part thereof is in these words 'Parson Charles Mynes Thruston in Frederick is erecting a Mill on the Line near thy Conveniency of Shenadon Tract, has

obtain'd an Order of Court to condemn & by a Jury has condemned an Acre to cut his Tail-Race through &mdash; This I apprehend is not accord[in]g to Law as the Line crosses the Stream &mdash; this Breach will greatly interfere with y^<u>r</u> Conveniency &mdash; This Hint I thought [it] was proper to communicate &mdash; J: Hough.' The Conveniency spoken of in the above Quotation, belonging to me, is a rich tract of Land lying in Frederick County contain^g about 5 thousand Acres, and a very ordinary Mill thereon &mdash; there are several Families now living on that Tract who pay Rent to me, that Part whereon the mill is erected, is not rented, [I] having often refused to rent the same, intend^g to erect mills for different Purposes there. I think that a writ shou'd be issued immed:^<u>ly</u> toward obtain:^g an Enquiry, in the Gen^l. Court touch^g the Propriety or Impropriety of the Order of Frederick Court, granting Leave for M^r T&mdash;[hruston] to build a mill &mdash; I will go myself up to Frederick County next spring and if the [people of the] Neighbourhood there really want a Grist-Mill, I will order one to be built, provided the Order of Court mention'd above shall be set aside &mdash;  The Indisposition of several of the Children, &amp; three upper Serv^ts. I apprehend will confine me here sometime, pray present my Compliments to L^<u>d</u> Dunmore and all the Gentlemen Attendants, who shall attend the approach^<u>g</u> Term [of the General Court, from which I must absent myself], I am, Dear Wythe, Your....": Robert Carter to George Wythe, October 4, 1772, Robert Carter papers, Duke University Library

The other, addressed to an emigrant from Virginia into Orange County, North Carolina, gives counsel as to a legal problem in Wythe's native county, acknowledges receipt of a paper for use in a case before the General Court, and approves his client's course of action in the more southern colony:

I have not been to Hampton since I wrote you. I purpose to go thither in a few days, and will then endeavour to get further information concerning mr Bloomfield's negros [<u>sic</u>]. The next of kin have now a right to the administration. but it seems to me that, unless they appear here, it cannot be committed to them; neither can it I be [<u>sic</u>] beleive [<u>sic</u>] be regularly committed to another in trust for them; neither will the court, in my opinion, without a suit, compel the persons in possession to deliver the negros [<u>sic</u>] to their agent. so that I would advise you, for the rea son you mentioned before, to procure what is necessary to support the claim of the heir. The bill you sent me

1. George Wythe to Robert Carter, July 2, 1774, Autograph Collection of the Signers of the Declaratino of Independence, J. Pierpoint Morgan Library.

2. George Wythe to Thomas Adams, September 6, 1774, Miscellaneous Manuscripts Collection, Virginia Historical Society Library.

will enable me to form one in the suit of mr. Hamilton against Armstrong in the general court. The mode of procedure [sic] you are pursuing in Carolina seems very proper.¹

Three extant petitions to the General Court throw a little additional light upon the activities of Wythe at its bar. Frederick County had a sheriff in 1765 named Jacob Hite, who was assisted voluntarily in the collection of taxes by Achilles Foster. Hite sued Foster for the whole value of the levies in one precinct of the county and secured a judgment in the local court against Foster. The latter petitioned the General Court in or about 1769 for a retrial before its bench. The body of the petition was written by Pendleton; below it contains Wythe's signature in testimony of the fact that Foster had sworn the accuracy of its allegations against Hite and against the previous trial. It pointed out enough irregularities to secure the issuance of a writ of certiorari to remove Foster's case from the inferior court to the supreme one. On the petition Wythe penned very briefly an order to that effect, which was signed by three of the judges.² One Solomon Redmon protested that a permit secured by Edward Sanford from the Westmoreland County court to build a mill endangered unlawfully his mill and begged that the order of the inferior

1. George Wythe to Thomas Burke, August 9, 1775, Roberts Autograph Collection, Haverford College Library. A facsimile of this letter is in the New York Historical Society Library.

court in Sanford's favor should be reversed by the General Court. At the bottom of this petition Wythe wrote and signed an opinion that the county court had been in error, and in his hand also appears above signatures of three General Court judges an order suspending by a supersedeas the execution of Sanford's permit, pending a formal rehearing in the upper tribunal.¹ Similar to the former of these two petitions was that made by John Randolph in 1773, by which he sought to secure a removal from Charlotte County's court to the General Court of a case in which he was sued. The writ of certiorari to effect that shift in the location of the trial was granted, but on the back of the paper is a notation in Wythe's handwriting which indicates that he had served as Randolph's attorney in the presentation of the petition:

It is agreed that the certiorari shall not be made use of if the plt will enter into a rule to refer the mater in dispute to mr Treasurer [Robert Carter Nicholas] & col Nelson with [a grant of] power to [them to] choose an umpire [a third party, in the event they could reach no decision between themselves] & make their award before the end of March  

It is probable that several young men studied like [[Thomas Jefferson|Jefferson]] in George Wythe's law office. Extant records, however, tell of only a few others. But because he was to become, as Jefferson did, an intimate friend and associate of Wythe, interest attaches to the experience of one of these in legal study. He was [[St. George Tucker]], a Briton who left his home in the colony of Bermuda to attend [http://www.wm.edu/ William and Mary College] in 1771.³ In mid-summer of the next year his father discussed in a letter to him the possibilities of preparation in Virginia and in England for a career at the bad. Tucker had

1. But <u>cf</u>. indenture of John and Peyton Randolph, February 12, 1773, Emmet Collection, New York Public Library.

3. "M^<u>r</u>. Starke gave Papa [Henry Tucker] such a favorable account of the College in Virginia ... that I believe he has determined, shoul'd you like it, to send you there. .... he [Starke] represents it as the best Institution of the sort in America and [as being] under the particular Inspection of Lord Boudetourt [Botetourt] (the Governor) who takes great Delight with it": Elizabeth Tucker to St. George Tucker, August 19, 1770, Tucker Papers, Mrs. George P. Coleman.

evidently proposed that he should remain in Williamsburg and work under Wythe before following his father's plan of study at London in the Inns of Court. His father replied, in part:

As to the plan you propose you must be Advised by those that are more capable of doing it than myself at this Distance. a knowledge of the Civil Law as well as the Laws of Nations in some sort I believe will be Necessary and as you intend to leave the College at Christ mas in order to enter upon the Study of the Common Law under Mr. Wythe, I wish you had said in what Manner that is to be done. Do you intend to enter upon a Clerkship with him or how? I think if you are permitted the use of his books & [if] he will give him self [<u>sic</u>] the trouble of regulating your studies, you ought to be as servicable [<u>sic</u>] to him as possible by giving him every Assistance to his business ... so that you may be help ful to him in writing while you make your self Acquainted with the Method of practice .... .... I shall write to England to inform myself the time it will be Necessary for you to be at the [Middle] Temple to be called to the Bar to plead in America but I think from what you represent of the Matter you will be better [off] to remain for some time in Virginia as you are like[ly] to be under so good a Tutor, for, if I am rightly informed, no care is taken of you at the Inns of Court in London. every student is to do as he pleases, besides [study for] the Comon [<u>sic</u>] practice in America as an Atty is quite out of the Question there.     ....  

I am greatly obliged to you for the Account you gave me of the proceedings in the Virga Courts as well as for the Characters of the several Gentm of the Law, such able proficient cannot but give you great pleasure in hearing them. as well as to instruct you in the Rules & practice of their Courts. in short I think you have a very good Opportunity of Instructing your self [<u>sic</u>], and I am persuaded you will not lose the Opportunity of doing it. .... As you propose leaving  the College at Christmas, I hope you will take care to get into a Reputable family & board at as cheap a Rate as possible I hope the sum wont [<u>sic</u>] Exceed 25 or 30 <s>L</s> per ann. but you must do the best you can. If you are to write for Mr. Wythe, perhaps you will dine with him but this will depend on the terms [under which] you are to be with him.¹

that there was a new boarder at the Wythe family table when Tucker began his new law studies early in 1773 – to the immense pleasure of a father who thought that too much time had been consumed with the inutile collegiate courses¹ and who deemed it well to caution him again to make Wythe instruct him in every practical phase of his profession.² Within about a year the pupil had been admitted to the bar of an inferior court; Wythe gave him in the spring of 1774, evidently in reply to an inquiry regarding some problem originating in actual experience, an opinion on some point of professional ethics:

4. St. George Tucker to Richard Rush, October 27, 1813, <u>Virginia Historical Magazine</u>, XLII, 213. Wythe seems to have continued constantly, or at least to have been often reappointed, to be one of the examiners to whom all lawyers in the colony had to apply for a license, for the famous John Taylor of Caroline was admitted to practise in his native county in 1773 under a commission signed by Wythe and John Randolph: entry of September 9, 1773, <u>Order Book</u>, Caroline County Records.

Virginians were not to know of Lexington and Concord until the news had been relayed over the long and tortuous journey from Boston, the beginning of actual hostilities in the War for American Independence. Espousing the cause of a more directly oppressed northern colony, in whose fate the others felt with some justice that their own was involved, Virginia had manifested her sympathy and support by closing all her inferior courts in 1774 as a protest against the Boston Port Bill. Before the autumn of 1775 noise from the staccato rifles and booming cannon reverberated in Virginia, too; the colony found itself driven to war against its governor and subsisting under the merest makeshift of a government. In the midst of such disorder adjudicated law could not reign. Thus it was that its spring term in 1775 was the last sitting on the General Court.¹ With that term, as later events were to prove, the career of George Wythe the lawyer ended once and for all. For the next three years he could do nothing but devote himself to the avocation of politics. Yet, when Virginia courts were reopened in 1778, he became identified again until his death with the legal profession in a new capacity, than of an honored judge in equity.

1. St. George Tucker to Richard Rush, October 27, 1813, <u>Virginia Historical Magazine</u>, XLII, 213. But Lord Dunmore complained in a long letter that the court had been closed in 1774 because no lawyers would plead before it: Governor Dunmore to the Secretary of State, December 24, 1774, Virginia Papers (Bancroft Transcripts), II, New York Public Library.

Two characteristics predominated as distinctive elements in the large success which attended Wythe's thirty years as a practising attorney, especially his two decades at the bar of the General Court. First, he was perhaps more learned in the law than any of his colleagues, though it was no mean attainments to equal or exceed the familiarity with its literature achieved by men like Thomson Mason and John Randolph, who were never as active as he in political affairs and had more time for scholarship.¹ "Under a pressure of business at the bar before the revolution, which would have monopolized the attention of others", as a friend spoke later of the work of one whose "knowledge of law…was indeed profound!",² he must have had innumerable occasions to refer to the books which were in those days the sources of British legal principles and precedents. But, just as he managed to steal time from his practise for communing with great minds of the past through the pages of his adored classics, standard repositories of the law meant more to him than places to look for information on specific points as occasion demanded. To

1. Hugh Blair Grigsby, <u>Discourse on the Life and Character of the Hon. Littleton Waller Tazewell</u>, 18, ranked Wythe "above all early statesmen" in this respect. But the same authority stated elsewhere, "In the solid learning of the law he [Wythe] stood, with the exception of Thomson Mason, almost alone": Grigsby, [[Virginia Convention of 1776|<u>Virginia Convention of 1776</u>]], 121; again, "That he more thoroughly mastered the learning of his profession than any of his contemporaries, excepting Thomson Mason, seems to be conceded": <u>ibid</u>., 127-128.

Wythe the earliest authorities on English law were not merely dull reference works &mdash; they were exciting tools with whose aid he might satisfy his flair for research by tracing every legal doctrine to its remotest enunciation in Roman codes or in pre-Norman Britain. Thus he delighted in Glanville's <u>Treatise on the Laws and Customs of the Kingdom of England</u>, published in Latin late in the twelfth century, the first commentary on the common law; in Bracton's treatise in Latin about the middle of the thirteenth century embodying much of the ancient Roman civil law; in Britton's six books, published in legal French under the sponsorship of King Edward I toward the close of the thirteenth century; and in the work known as Fleta, also published about 1290 but issued in Latin. Into these first epochal compendiums in English legal literature Wythe delved, partially for the sheer joy of mining their undervalued historical nuggets, at a time when most of his fellows were content to pursue few thought farther back than fifteenth-century Thomas Littleton's <u>Tenures</u>, a statement of England's real property laws which had furnished a hundred years or so later a point of departure for Coke's famous textbook. Moreover, he gloried in the unofficial reports in French of discussions in England's courts between members of bench and bar, three and a half centuries after Glanville, which are known as Year Books, most of which he had also in his library; and he collected, too, voluminous copies of

statutes passed by Parliament.¹ With such profound erudition at the command of a logical brain, it was but natural that able arguments should have emanated from his conscientious care in preparing his appeal in each case.² Yet it should not be thought that Wythe's superior storehouses of legal learning were drawn upon in a merely pedantic manner, "for in pleading", Jefferson testified, "he never indulged himself with an useless or declamatory thought or word...."³ He spoke rarely with real eloquence but was nearly always impressive, by reason of his easy elocution, the methodical arrangement of his materials, and his usually unruffled urbanity in debate;⁴ frequently, too, he showed that he was a master of pathos in appeal and of sarcasm in repartee.⁵

1. Grigsby, <u>Littleton Waller Tazewell</u>, 18, is authority for the names given in these sentences. His information was almost undoubtedly secured in conversations with Tazewell, who lived for a time in Wythe's home: <u>cf</u>., <u>e.g</u>., <u>ibid</u>., 10, 80, 84-85. A readily available and non-technical summary of the above legal authorities may be found in Lyon and Block, <u>Edward Coke</u>, 335-345.

5. Wirt, [[Life of Patrick Henry|<u>Patrick Henry</u>]], 66.

confident scoffers to proclaim that there could be no such thing as an honest lawyer. The dexterous evasions of so called Philadelphia lawyers have become in later times proverbial, but colonial Virginians were not without unwelcome examples in their courts of gross perversions of justice. Therefore, when no evil conduct was evident or imputable in the actions of an attorney, he was likely to be dubbed "the honest lawyer", and several of Wythe's contemporaries, including Robert Carter Nicholas and his brother-in-law, John Lewis of Spotsylvania, were recipients of that enviable title.¹

One is thus forced to conclude, when he reads the declaration often made by Rev. Lee Massey, rector of Truro Parish in Fairfax County, proclaiming that Wythe "was the only honest lawyer he ever knew",² that the excellent clergyman did not have too broad an acquaintance among the colony's counselors. Though it could not be expected that

1. On Nicholas' professional virtue see Randolph, [[Randolph's History of Virginia|Manuscript History of Virginia]], <u>Virginia Historical Magazine</u>, XLIII, 125. Norfolk was another spot which had its representatives of uprightness. "Like [James] Nimo, he [John Nivison] was called the honest lawyer; and it was one of the sly jests of our fathers that there should be two lawyers at the same bar and in the same generation, whose claims to the title should be generally conceded by the people": Grigsby, <u>Littleton Waller Tazewell</u>, 32.

2. J. T. Stoddert, a grandson of Massey, made this report in a letter of unknown date to Bishop Meade: reprinted in Meade, <u>op</u>. <u>cit</u>., II, 238. Massey had retired early from the practise of law "because his 'conscience would not suffer him to make the worse appear the better reason', and to uphold wrong against right. He tried to follow in the lead of ... Wythe, to examine cases placed in his care and to accept the good and reject the bad. It proved a failure....": <u>ibid</u>.

1. Jefferson, "[[Notes for the Biography of George Wythe]]", Jefferson Papers, Library of Congress. "The temptations of the law never raised a doubt on his purity....": Randolph, [[Randolph's History of Virginia|Manuscript History of Virginia]], <u>Virginia Historical Magazine</u>, XLIII, 131.

When Parson Mason L. Weems, author of a biography of George Washington which is famous only because he created in his imagination the well known episode of the hachet and the cherry tree, heard of Wythe's death, he seized the opportunity to [[Honest Lawyer|rush into print with a characteristically effusive anecdote]] illustrative of the last of these rules by which Wythe safeguarded his splendidly delicate sense of professional integrity:

"In the month of June, many years ago, I went," said Mr. Massey, "to dine with my friend, Bob Alexander." (Now, it may not much confuse the reader, to tell him that this same <u>Bob</u> Alexander, as Mr. Massey, in his familiar way, always called him, was a wealthy and worthy gentleman, living on the Potomac, and near Alexandria.) Well, "while Mrs. Alexander, like Milton's Eve, 'on hospitable thoughts intent,' was preparing an elegant dinner, Bob and I took our chairs into the piazza, which commanded a very fine prospect indeed &mdash; full in our view lay the great Potomac, the mile-wide boundary between the sister states [colonies] of Mary land and Virginia &mdash; on the Virginia side the rich bottoms lengthened out, as far as the eye could see, were covered with crops of full ripe wheat, whose yellow tops rolling in ridges before the playful breeze, reflected the beams of the sun in sudden gleams of gold,

1. See esp. "[[Memoirs of the Late George Wythe, Esquire|Memoirs of the Late George Wythe, Esquire]]", <u>The American Gleaner, and Virginia Gazette</u>, I, 2-3. "I know that his probity was such, that when he acted as counsel, his opinions were the dictates of a well informed conscience, [and that] no promise of emolument could engage him to undertake a bad cause ... when he understood its real merits....": "[[Virginia Gazette, and General Advertiser, 18 June 1806|Communication]]" signed "A.B.", <u>Virginia Gazette, and General Advertiser</u>, June 18, 1806.

brightening the day &mdash; on the Maryland side, a stately ridge of hills, high crowned with trees, formed as it were, a frowning guard to the great river, and threw its subliming shades, a striking contrast to the milder beauties of the opposite shore. Out spread [<u>sic</u>] between the two, lay the Potomac, whose little waves, just waked up by the young winds of summer, ran chasing each other along their sky-blue fields, often speaking their joy in bursts of snowy laughter. While thus we sat feasting on these richly varied and magnificent scenes, which the great Maker had so kindly spread before us, Bob's servant arrived from town with the newspapers, and a letter, which he handed to his master. Having hastily run it over, he exclaimed with great earnestness, 'Well, really Parson, this is strange, very strange! Why that George Wythe must certainly be either an angel or a fool."['] &mdash; 'Not a fool, Bob,' said I; 'George Wythe is no fool.' &mdash; 'Well, that was never my opinion, neither, Parson; but what the plague are we supposed to make of this confounded letter here[?] &mdash; Suppose, Parson, you read it, and give me your opinion on it.' I took it, and with great pleasure read nearly word for word, as follows:&mdash;<center>Robert Alexander, Esq.</center>Sir.&mdash; The suit wherein you were pleased to do me the honor to engage my services, was last week brought to trial, and has fully satisfied me that you were entirely in the wrong. Knowing you to be a perfectly honest man, I concluded that you have some how [sic] or other been misled. At any rate I find that I have been altogether misled in the affair, and therefore insist on washing my hands of it immediately. In so doing I trust I shall not be charged with any failure of duty to you. As your lawyer 'tis true I owe you everything &mdash; everything <u>consistent with justice</u> &mdash; against her, [I owe] <u>nothing</u>: nor can ever owe. For justice is appointed of God, the golden rule of all order throughout the universe, and therefore, as involving the greatest of all <u>possible good</u> to his [His] creatures, it must be of all things the dearest to Himself. He therefore, who knowingly acts against justice, is a rebel against God and a premeditated murderer of mankind. Of this crime (which worlds could not tempt me to commit) I should certainly be guilty, were I, under my present convictions, to go on with your suit. I hasten therefore to enclose you the fifty dollar note you gave me as a fee, and with it my advice, that you compromise the matter on the best terms you can.

that inward sunshine, which nothing outward can darken.<br />&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;I remain, dear sir, your's [<u>sic</u>]<div align="right">Geo. Wythe["]</div>For the sake of those who may wish to know whether the advice, in this extraordinary letter, was followed or not, I beg leave to add, that it was not followed. Mr. Massey told me, that his friend Bob was resolved, <u>nolus volus</u> [a humorous Latin corruption of <u>nolens volens</u>, meaning "against advice"], to go on with the suit, and therefore gave the fifty dollar note to some other gentleman of the law, who pushed the matter for him, and exactly with the success predicted by the good Mr. Wythe &mdash; <u>the loss of his land, with all costs</u>! "Blessed are the meek, for they shall inherit the earth."¹

Possibly Weems actually heard from Massey a story such as that he relates; if so, he erred in referring to "sister states" and to a "fifty dollar note", for Wythe was an attorney only during the colonial period and was never paid a fee in dollars. Or perhaps this account is almost entirely pure fiction, with little more basis in fact than the renowned legend which he created outright to glorify Washington's inability to tell a lie. Certain it is, however, that the general tenor of Weems' tribute to an honest lawyer, though florid, is in keeping with the known characters of Massey and Wythe.

1. George Wythe to John Tabb, September 22, 1782, Roberts Autograph Collection, Haverford College Library.

1. Wirt, [[Life of Patrick Henry|<u>Patrick Henry</u>]], 66. "... Pendleton ... had studied law rather as it was to be found in the cases than as a system, and may be said rather to have known a great deal of law than to have been a master of the science, approached nearer the character of a great advocate than of a great lawyer....": Grigsby, [[Virginia Convention of 1776|<u>Virginia Convention of 1776</u>]], 127.

2. Quoted from an unknown source in Wingfield, <u>op. cit</u>., 201. <u>Cf</u>. the striking similarity of that description of Pendleton with Jefferson's: "Autobiography", Bergh, ed., <u>Writings of Jefferson</u>, I, 54-55. The latter uses as a phrase exactly the same noun and adjectives that Wythe employed in the first of the two sentences above; each speaks of him as "cool, smooth and persuasive; his language flowing, chaste and embellished". Jefferson's characterization continued: "[he was] never vanquished: for if he lost the main battle, he returned upon you, and regained so much of it as to make it a drawn one, by dexterous manoeuvres [<u>sic</u>], skirmishes in detail, and the recovery of small advantages which, little singly, were important all together. You never knew when you were clear of him, but were harassed by his perseverance, until the patience was worn down of all who had less of it than himself. Add to this, that he was one of the most virtuous and benevolent of men, the kindest friend, the most amiable and pleasant of companions, which ensured [<u>sic</u>] a favorable reception to whatever came from him." As a preface to this description Jefferson had stated that Pendleton was, "taken in all, ... the ablest man in debate I have ever met with."

1. Wirt, [[Life of Patrick Henry|<u>Patrick Henry</u>]], 66.

It should not be inferred, however, that Wythe permitted himself to submit meekly to genuine indignities. A probably authentic story is told of an incident in the General Court which afforded him ample opportunity to prove that he had, when aroused or stung, an intrepid spirit and a venomous tongue. On the day in question the court was sitting with Lord Dunmore as presiding judge. Rather parenthetically (since it is an observation which will not be substantiated until the seventh chapter is reached) it must be remarked that Governor Dunmore, whose role is that of the foremost and most notorious villain in Virginia history, was the one man known to have ever incurred Wythe's thorough and irreparable dislike. It is probable that the intemperate governor reciprocated fully, if he did not aggravate, Wythe's repugnance for him; equally probable is it that a sufficient number of the witnesses to their skirmish were aware of the feeling between them to make electric that second of suspense before its outcome was apparent. The handsome figure of Pendleton, with whom Wythe's relations were a hundred times more cordial, is

also an essential unit in the <u>dramatis personae</u>. Wythe and a colleague were on the docket that day to oppose [[Edmund Pendleton|Pendleton]] and a colleague in the trial of an unnamed case. But when the suit was called, Pendleton's associate counsel had not arrived. Pendleton therefore asked that the court's examination of the cause might be postponed, on the ground that there were two attorneys on the other side. Forgetting for the moment the judicial impartiality which decorum and tact demanded of him, Dunmore committed a crass impropriety by replying, "Go on, Mr. Pendleton, for you'll be a match for both of them." Before the echoes of that affront had died in the courtroom, Wythe retorted meaningly and pointedly, "With your Lordship's assistance." It was a terribly severe rebuke, whose biting sarcasm was emphasized by the exaggerated deference and mock politeness of the courtly bow which accompanied it. So completely had he deserved this virtual slap in the face that Dunmore could not afford to feel or act insulted. Spectators of that dramatic moment were delighted at the boldness and brilliance of Wythe's rejoinder.¹

The stormy administration of petulant Robert Dinwiddie was brought to a close in 1758 by his resignation on a plea of illness.¹ In the person of Francis Fauquier, who reached Virginia about the first of June, 1758,² there were qualities which were to make him a much more congenial lieutenant-governor, perhaps one of the most popular among all the men who ever held his office. Through a succession of crises at least as vexing as those faced by Dinwiddie he retained without notable lapse the public confidence and approval. So conciliatory was his governmental policy that mild censure

1. He communicated to the Council in September, 1757, knowledge of is acceptance: Executive Journals of the Council of Colonial Virginia (Photostats), September 22, 1757, University of Virginia Library, To secure passage for him without delay the Council paid &pound;300 sterling to the captain of a ship as compensation for his loss of freight revenues on 50 hogsheads of tobacco which had to be unloaded to make room for Dinwiddie: <u>ibid</u>., December 14, 1757. His last meeting with the Council was that of January 2, 1758: <u>ibid</u>. Pending the arrival of his successor, President John Blair of the Council took charge of the government: <u>ibid</u>., January 12, 1758.

2. He took his oaths of office before the Council soon after his arrival: <u>ibid</u>., June 5, 1758. For a time Lord Loudoun was Governor. Later Jeffery Amherst held that position, his appointment being renewed with Fauquier's in 1761: entries of February 17 and March 4, 1761, Board of Trade Journals (Transcripts), LXIX, 135, 166, Pennsylvania Historical Society Library.

came to him from England rather than from the colony.¹ Coincident with his advent was the true beginning of George Wythe's

1. He showed every inclination, upon several occasions of conflict between English and colonial interests, to uphold the side of the Virginians, whose sentiments were best reflected in the house of Burgesses. Reprimanded for supporting the cause of the colonists in a specific instance, he explained in his apology that his policy had been dictated by his firm belief in the wisdom of preventing discord within the General Assembly. "… I must frankly acknowledge that it has been my constant endeavors [<u>sic</u>] ever since I arrived in this Colony to preserve an entire harmony among all the branches of the Legislature, and this care has been extended to the Council and Burgesses to keep them in [a] good humor with each other. From the unhappy examples I heard of in some of the neighboring Colonies from the dissensions subsisting between the branches of their Legislature, where all business was at a stand[still] and his Majesty's service and the public good obstructed: I took another measure [<u>i.e</u>., course] and (your Lordships will excuse me I hope for saying it) have at some times flattered myself that I have promoted his Majesty's service by pursuing this path. But I find I have gone too far, and ran into an extreme which has subjected my conduct to your Lordships' censure. Having thus truly stated the case, I rely on your Lordships' candor that you will impute it to the true cause which is a mistaken judgment [in] imagining I could best promote his Majesty's service by conniving at some improper or indecent expressions [by the House], sallies of a young people in a progress towards politeness": Francis Fauquier to the Board of Trade, November 19, 1764, Virginia Papers (Bancroft Transcripts), I, 257, New York Public Library. Two years later he confessed that, in a dilemma which had put him temporarily at odds with the Burgesses, he had been forced to resort to a bit of virtual deception. "... and at last [I] have acted out of character[,] having made use of more art, than I ever practised with them before": <u>id</u>. to the Earl of Shelburne, November 15, 1766, <u>ibid</u>., 461. As examples of his espousal of the popular cause, it may be stated that he made no secret of his staunch opposition to the claims of the clergy in the "[[wikipedia:Parson's Cause|Parsons' Causes]]" and that his support of the inept [[wikipedia:Stamp Act 1765|Stamp Act]] was so lukewarm as to leave little doubt but that he would have been one of its firm opponents had he been in England or had he been perfectly free to express his opinions on it.

In the election of new burgesses which followed Fauquier's arrival Wythe received only one vote in Elizabeth City County. The field there was unusually crowded, with eight other men as candidates, and it is to be doubted that he formally offered his name at the polls; his lone supporter, one Benjamin Lester, who did not vote for a second representative as custom required, possibly did not like the announced candidates and wasted his suffrage in a harmless gesture of personal esteem.² But Wythe's days of absence from the sessions of the House of Burgesses had ended once and for all. Peyton Randolph, formerly the representative of William and Mary College, was elected in the summer of 1758 burgess for Williamsburg, and George Wythe was chosen by the College to take Randolph's old seat.³

3. McIlwaine, ed., <u>Journals of the House of Burgesses, 1758-1761</u>, viii. His predecessors in this capacity had included, besides Peyton Randolph, Edward Barradall and Beverly Randolph &mdash; all prominent lawyers: Tyler, "[[Great American Lawyers|George Wythe]]", <u>loc. cit</u>., 57.

England was still battling France in the French and Indian War for control of the vast territory between the Alleghany Mountains and the Mississippi River. In the early years of the struggle Colonel George Washington's forced capitulation at Fort Necessity had been followed by the shocking massacre of Braddock's army, which "had terrified all but the brave"; "every coward", observed a youngster of that day, "believed and said that we were on the point of destruction."³ By valiant efforts in governmental halls and offices and in the field Virginia was bearing with comparative willingness her full share of the burden of financial and military cooperation levied on her from London headquarters.⁴ A number of the responsibilities which Wythe shared with other burgesses were related to this conflict for an inland empire.

In three sessions of the House of Burgesses, acting through

4. <u>Cf</u>. Secretary William Pitt to Francis Fauquier, December 9, 1758, <u>Virginia Historical Magazine</u>, XI, 5-8; id. to id., December 29, 1758, <u>ibid</u>., 8-9.

1. McIlwaine, ed., <u>Journals of the House of Burgesses, 1758-1761</u>, 71, 160, 187-188.

3. On the Burwell bill see McIlwaine, ed., <u>Journals of the House of Burgesses, 1758-1761</u>, 138, 142, 144-145, 146, 150; McIlwaine, ed., <u>Legislative Journals of the Council</u>, III, 1226. On the two Spotswood bills see McIlwaine, ed., <u>Journals of the House of Burgesses, 1758-1761</u>, 109, 115, 112, 144, 149. On the Cary bill see <u>ibid</u>., 214, 220, 223, 230, 240, 243; McIlwaine, ed., <u>Legislative Journals of the Council</u>, III, 1249, 1250.

incorporated towns.¹ Twice the seat for Jamestown was vacated, and Wythe was chosen by the House to request Fauquier to issue writs for new elections.² He served on committees arranging for the emission of paper currency issued to finance the war and for the auditing of the accounts of William Hunter, the public printer,³ and he took his turn in determining the amount of the annual appropriation for that official.⁴ In the preparation of a difficult act for the incorporation of the trustees of the Eaton Charity School in his native county his was the major hand.⁵ Thus Wythe gained a very creditable number of appointments, in the first House of Burgesses through all of whose sessions he sat, both to standing committees and to the temporary committees for the drafting of bills or for other purposes &mdash; and, since the official <u>Journals</u> do not record debates and other actions of the individual members, such appointments are recognized as a standard index

4. <u>Ibid</u>., 144; McIlwaine, ed., <u>Legislative Journals of the Council</u>, III, 1225. Hunter (<u>d</u>. 1761) set aside by his will &pound;100 to purchase mourning rings, which should be given to ten people as tokens of his friendship; among them were (in the order in which he named them) Benjamin Franklin, Wythe, Robert Carter Nicholas, William Small, Benjamin Waller, and Thomas Everard: <u>William and Mary College Quarterly</u> (1st Series), VII, 12-13.

Similar routine responsibilities were heaped upon Wythe's shoulders by the House of Burgesses of 1761-1765, throughout its eight sessions.

Wythe, formerly a representative of Williamsburg and of William and Mary College, sought elsewhere for reelection in 1761 as a legislator. Peyton Randolph retained he seat for the capital city, and Hann Page supplanted Wythe in that for the College, probably being chosen after the success of his predecessor had been assured by another constituency.¹ He turned again to the polls of Elizabeth City County, in which he gained on May 3, 1761, by receiving more votes than any other candidates, a complete vindication of his defeat in 1756.² Thus he represented during the next four years³ a county which he visited only when things were quiet and without pressure in his Williamsburg home.

2. <u>Ibid</u>., 3. William Wager was seated as his colleague, and James Wallace contested vainly Wager's claim. Among the findings of the Privileges and Elections committee in this dispute was the desire of three men (Rev. Thomass Warrington, Johnson Mallory, and John Lowry) to vote for Wythe and Wallace; Warrington alone, it was ruled, was entitled to suffrage: <u>ibid</u>., 9-10, 86-90, 94-96.

regiment in the French and Indian War.¹ When Fauquier communicated to the House His Majesty's desire that this regiment should be maintained by additional provisions for a period longer than that anticipated by the Burgesses, it was resolved that Virginia's financial status would not permit a further continuance of this expense, and Wythe was one of those to whom the House delegated the duty of writing so tactful an address to the lieutenant-governor that its refusal would seem to be a pointed reaffirmation of its cooperative spirit.² To provide funds for the colony's earlier military expenditures it had been necessary to print paper currency and to declare it a legal tender, whose par value had been stabilized by a bill which Wythe had helped to draft.³ But British merchants and creditors were afraid of an unstable currency and protested that these treasury notes came to them at a depreciated rate of exchange. With their objections the House could not agree. Its answer claimed that their alleged losses either were merely fancied, since remittances to England even of sterling specie, if it were available, would suffer subtractions for freight and insurance, or resulted from wholly uncontrollable factors; furthermore, all possible steps to render Virginia's public credit inviolate had been taken by the establishment of adequate

2. The other members of this committee were Peyton Randolph, Richard Henry Lee, Richard Bland, and Edmund Pendleton: <u>ibid</u>., 114-115, 124, 133.

funds for a gradual redemption of the paper notes. In explanation of these just contentions Wythe collaborated with several colleagues in the composition of two addresses to Fauquier,¹ and he aided in the preparation of an act to meet a more valid British protest on the subject.²

Thus it is seen, by the mere mechanics of the Burgesses' work, that Wythe held a creditable rank among them during the years from 1758 to 1765.

2. <u>Ibid</u>., 180-181. On the history of this paper currency see also a valuable letter from Richard Bland to Thomas Adams, August 1, 1771, <u>Virginia Historical Magazine</u>, VI, 128-129; some additional references will be given in the next section of this chapter.

4. His colleagues on this committee, in which he had second rank, were Payton Randolph [''sic''], chairman, John Randolph, Benjamin Waller, and Robert Carter Nicholas: Kennedy, ed., <u>Journals of the House of Burgesses, 1761-1765</u>, 333, 364. The result of their work will be noted in the next chapter.

early eminence in the House of Burgesses is the fact that he became a member of its Committee of Correspondence.

In all the British organization for colonial government there was for many years no provision for a direct communication in person between a transplanted people and the various London or Westminster agencies. Mails, on which even the governors had to depend, were quite irregular and unsafe &mdash; and even if their slow courses were successfully negotiated by letters on important issues, there was no one to make desirable explanations or to answer inevitable questions on the colonial point of view. Virginia had been settled only a few decades before a pointed need was felt for some one to visit governmental offices in England, and a series of temporary agents had been sent across the Atlantic as occasion demanded on various special missions, ending with that of Peyton Randolph against the pistole fee. In 1753 James Abercromby had been named a more permanent agent to facilitate Virginia's business and to foster her interests in London,¹ but Abercromby became in effect a personal representative of successsive governors by reason of the fact that he received his appointment and instructions from them. Had it been possible for any lieutenant-governor to see eye to eye on most problems with the colonists, this arrangement might have been fairly satisfactory. Yet it is notoriously axiomatic that even a Fauquier was disqualified by the very nature of his position

Such a spokesman faithful to the colonial attitude on all imperial problems relating to Virginia was woefully lacking until 1759. In that year this defect in England's administrative machinery was remedied by legislation appointing another agent to solicit favorable actions in London and a committee to direct his efforts from Virginia. In other words, the agent should be an Aaron attempting to soften the hearts of British Pharoahs with words supplied through a remote and multiple Moses by the god of Virginia's public interests. Edward Montague, a lawyer in the Middle Temple, became the Aaron; four members of the Council and eight members of the House were named on the committee which was to be his collective Moses.¹ It is a very significant testimony of

1. The act provided that the committee should consist of Councillors William Nelson, Thomas Nelson, Philip Grymes, and Peter Randolph, and of Burgesses John Robinson, Peyton Randolph, Charles Carter, Richard Bland, Landon Carter, Benjamin Waller, Wythe, and Robert Carter Nicholas: Hening, <u>Statutes</u>, VII, 276-277. Since a question was raised in England as to the act's constitutionality, another was passed in October, 1760, to clarify it, but the membership of the committee remained unchanged: <u>Virginia Historical Magazine</u>, XI, 10-12; Hening, <u>Statutes</u>, VII, 375-377. Because one member had died and because others lived at points inconveniently distant from Williamsburg, two Councillors (John Blair and Robert Carter) and two Burgesses (Lewis Burwell and Dudley Digges) were added to the committee in 1763: <u>ibid</u>., 646-647.

1. It may be surmised that his geographical proximity, however, would have made his appointment somewhat preferable to that of some remote leaders, such as [[Edmund Pendleton]] and Richard Henry Lee. An article on the Committee summarizes the attainments of its members, without proper regard for chronology: <u>William and Mary College Quarterly</u> (1st series), XXII, 3-4. Paragraphic biographies of each member are included in the notes accompanying its documents in <u>Virginia Historical Magazine</u>, IX, 355 <u>n</u>.

Country and her colony passed under the Committee's review.¹ Montague reported many actions which would affect Virginia, and his correspondents dictated his steps in a number of projects, ranging from assignments to collect for the colony money due in England² to the duty of securing the royal assent to favorite bills passed by the colonial legislature. A large portion of his attention for some years was directed to the justification of the paper money issued by Virginia to finance her activities in the French and Indian War, which resulted in a protest by Interested British merchants, though such adequate security backed these notes that this currency suffered no undue depreciation.³ Other aspects of the Committee's activity in advising Montague how to promote on his side of the Atlantic the colony's concerns will be reviewed in later connections. Despite the want of complete records, it seems to be certain that Montague was discharged April 10, 1771, on account of a growing apathy on his part toward his functions; but his services were evidently engaged again.⁴

4. A member of the Committee, after stating the above date and complaining of Montague's neglect, advised a London friend to exert himself unofficially in the colony's behalf, in order to obligate to him the House, in which an inadequate attempt would probably be made to reappoint Montague: Richard Bland to Thomas Adams, August 1, 1771, <u>Virginia</u>

<u>Historical Magazine</u>, VI, 133-134. Montague's efforts in 1770 are recorded in <u>ibid</u>., XII, 157-169, 225-240, 353-364. Jefferson told of a paper which Montague copied in 1774 or 1775 and referred to him as agent of the House: Autobiography, Bergh, ed., <u>Writings of Jefferson</u>, I, 13. Thus it would appear that Bland had underestimated the strength of the movement for his reinstatement.

Some members of the establishment clergy, whose salaries were paid, of course, out of colonial income from taxation, were the only officials who did not acquiesce in this provision for specie payments. They argued that the bill of 1758 contained unconstitutional provisions and would probably not receive the assent of the Crown necessary to make it enforceable law. The need for an immediate remedy of the trick played upon the Assembly by the most recent fluctuation in the tobacco market, it is true, had indeed induced the legislators to dispense with the clause, required on bills repealing laws previously approved in England, suspending its operation until His Majesty's pleasure might be known. But the law was to be of such brief duration that it expired before royal disapproval could return from London, and the payments in specie were effected. In justification of the failure to comply with strictly legal legislative requirements, it was claimed by the Committee of Correspondence that emergency legislation could not be delayed by slow eighteenth-century communications and that the Assembly had a natural right to enact temporary laws.¹

rector of York-Hampton Parish and later president of William and Mary College, who had a rather strong penchant for being in the midst of tempestuous controversies, prosecuted in the General Court a similar suit which gave Virginia's leaders a great deal more worry.¹ The Committee of Correspondence felt it to be a matter of such public interest that the colony should assist the parish in the expenses of the defense,² and explicit instructions were given to its agent with constitutional arguments to assist the cause in London.³ The Council was firm in supporting the Two Penny Act, too, and its agent succeeded in postponing the progress of an adverse report of the Board of Trade to the eventual official veto by the Crown.⁴ When the General Court finally gave judgment on Camm's suit, in which Robert Carter Nicholas was chief

1. <u>Virginia Historical Magazine</u>, X, 366, carries a biographical note on Camm. The story of his advocacy of a bishop in the later contentious movement for an American episcopacy is partially told in Richard Bland to Thomas Adams, August 1, 1771, <u>ibid</u>., VI, 130-134. For gossipy comments on his late marriage see Martha Goosley to John Horton, August 5, 1769, Horton Papers, Colonial Williamsburg, Inc. <s>Peter Lyons was Maury's attorney; Wythe's brother-in-law, John Lewis, preceded Henry as counsel for the parish.</s><ref>Hemphill struck out this sentence in pen.</ref>

attorney for the defendants,¹ the members of the Council in their capacity as judges decreed against the parson.² Fauquier granted with misgivings Camm's insistence upon an appeal from the verdict to authorities in England,³ and the Committee of Correspondence warned Montague to dig up old colonial charters and other precedents with which to combat a possible British reversal of the General Court's decision.⁴ But Camm's appeal was allowed to die by the Privy Council in 1767; common belief among English contemporaries attributed its failure to a desire that the colony, already provoked, should not be further agitated.

1. Nicholas was asked to furnish Montague with a copy of his arguments: minutes of the Committee of Correspondence, June 15, 1764, <u>Virginia Historical Magazine</u>, XII, 7.

4. Minutes of the Committee of Correspondence, June 15, 1764, <u>Virginia Historical Magazine</u>, XII, 6-7; Committee of Correspondence to Edward Montage, July 28, 1764, <u>ibid</u>., 11-13. Montague was successful in his effort to secure the copies: entry of February 19, 1765, Board of Trade Journals (Transcripts), LXXIII, 66, Pennsylvania Historical Society Library.

his tobacco. After various postponements¹ the case came to trial in 1763, before those of Maury and Camm had been decided. As presiding justice of the Elizabeth City court² George Wythe heard the arguments in this suit. A jury brought in a special verdict in favor of Warrington if the law of 1758 were invalid, in favor of the defendant if the court upheld

1. See <u>e.g</u>., entry of June 1, 1762, <u>Court Record 1760</u>, [Order Book, 1760-1769], 82, Elizabeth City County Records.

the Two Penny Act.¹ Two months later the justices listened to pleas of each party's counsel on this matter of law; they determined that the enactment of 1758 was binding upon the vestrymen.² Warrington was thereby defeated, but he pressed an appeal to the General Court,³ which refused in October, 1767, to reverse the verdict.

Thus Wythe, as a member of the Committee of Correspondence and as a judge of his native county's court (if not, perhaps, in other capacities too⁴), had defended against the attacks of two clergymen the right of Virginia's General Assembly to enact, independently of tardy royal approval, temporary and emergency local legislation. Doubtless the constitutional issue in the controversy interested him much more than its religious phases, though he was an officer of the Church, for as early as November 20, 1760, he had become a vestryman and churchwarden of the Bruton Parish church in Williamsburg.⁵

4. It is quite possible, <u>e.g</u>., that he was associated with Nicholas in the legal defense of the Two Penny Act before the General Court in Camm's prosecution and that he was an attorney before the same bench for Elizabeth City Parish in the hearing on Warrington's appeal.

5. Surviving records give only incomplete data on his tenure of this position; in addition to the above data it is known only that he was also a vestryman on September 14, 1769, with such men as John Blair, Benjamin Waller, Robert Carter Nicholas, and Thomas Everard: Goodwin, <u>op. cit</u>., 39-40. <u>Cf</u>. Meade, <u>op. cit</u>., I, 179, 191.

A controversy of briefer duration than that over the Two Penny Act but of greater intensity and of a more direct relation to the unsolved problems in British colonial organization was the furor raised by the Stamp Act. As might be expected, George Wythe was in the midst of this battle, too, from its very beginning. In accordance with his instructions to report all proceedings of the English government which concerned the colony, Edward Montague, the agent, informed the Committee of Correspondence that early in 1764 a renewal of duties on certain articles of trade, including sugar and wine, would be levied and that the ministry proposed for subsequent enactment a requirement that stamps be placed on legal documents and on other types of papers.¹

in Magna Charta and its later amplifications, such as the Bill of Rights, and in the principles of common law protected from the King's prerogative the liberties of each individual subject. These hard-won rights were often conceded by royal charters to be an inheritance on the colonists, but even these personal privileges were not universally admitted, for in the exercise of its increasing powers Parliament sometimes exceeded the very limitations which it had placed upon the Crown. In the absence of specifically prescribed boundaries of authority, a general recognized division of powers had been worked out by experience between Parliament and its colonial counterparts. Assemblies in the New World were given in practise the function of taxing their peoples, so long as the welfare of the whole British dominions was not thereby placed in jeopardy; Parliament assumed authority over all matters of taxation and customs involving inta-imperial and international trade. Thus, whenever taxes laid in London were construed by colonists to be imposed for revenue on purely local affairs, protests were forthcoming. New postal regulations early in the eighteenth century, for example, met the vigilant Virginians' rebuff that "Parl't could not Levy any Tax, (for so they call ye Rates of Postage,) here without the Consent of the General Assembly."¹ Under this principle, well established by many precedents, Parliament would be within its bounds if it should exact tariffs on sugar and other

1. Alexander Spotswood to the Board of Trade, June 24, 1718, Brock, ed., Letters of Spotswood, II, 275-286.

commodities; but, should the proposed tax via stamps be enacted, it would be exceeding its historical authority. The truth of the matter seems to be that British officials knew this as well as any one and that they may announce their intention long before the passage of the Stamp Act in order that colonial reactions may be weighed during the period for which execution of this plan was deferred.

The Committee of Correspondence met on July 15, 1764 to consider the news borne by its agent's letters and described Virginia in its minutes as "much alarmed at the Attempt in parliament to lay a Duty ... on Madeira Wine & [at] the proposal for a Stamp Duty." It resolved to order Montague "to oppose this with all his Influence, & as far as he may venture [to] insist on the Injustice of laying any Duties on us & particularly [of] taxing the internal Trade of the Colony without their consent."¹ Wythe was appointed to draft a letter to Montague, 'with the assistance of Robert Carter Nicholas, pursuant to this and other resolutions.² The resultant letter was reported to the Committee and adopted in a meeting held thirteen days later.³ Thus it was given to George Wythe to be spokesman in the outstanding and most

earnest early protest against the Stamp Act.¹

Every prominent argument used later by all colonies against the proposed form of taxation, except the point that it would hurt British trade by draining the colonies of their little specie, was summarized adequately in the instructions to the Montague written by Wythe and Nicholas. They urged first that the intention was ill-timed, since Virginia was already staggering under a war debt relatively comparatively to Great Britain's:

1. Samuel Adams' resolutions of May 24, 1764, in a Boston town meeting and James Otis' memorial and instructions adopted by the lower house of Massachusetts' legislature, June 13, 1764, were directed principally against the Sugar Act, though probably not exclusively so, as Lyon G. Tyler's articles of claim: <u>cf</u>. <u>e.g</u>., that in <u>Tyler's Quarterly Magazine</u>, III, 246-247.

... but what makes the approaching Storm appear still more gloomy & dismal is, that, if it should be suffer'd to break upon our Heads, not only we & our children, but our latest Posterity may & will probably be involved in its fatal Consequences. It may, perhaps, be thought presumptious in us to attempt or even to desire any Thing which may look like a restraint upon the controlling Power of Parliament; We only wish that our just liberties and Privileges as free born British Subjects were once properly defin'd, we think that we may venture to say that the People of Virginia, however they may have been misrepresented, would never entertain the most distant Inclination to transgress their just Limits. That no Subjects of the King of Great Britain can be justly made <u>subservient</u> to Laws without either their personal Consent, or their Consent by their representatives we take to be the most vital principle of the British Constitution; it cannot be denyed [<u>sic</u>] that the Parliament has from Time to Time, where the Trade of the Colonies with other Parts was likely to interfere with that of the Mother Country, made such Laws as were thought sufficient to restrain such Trade to what was judg'd its proper Channel, neither can it be denied that, the Parliament, out of the same <u>Plentitude</u> [<u>sic</u>] <u>of its Power</u>, has gone a little Step farther & imposed some Duties upon our Exports; but to fix a Tax upon such Part of our Trade & concerns as are merely internal, appears to us to be talking a long & hasty Stride & we believe may truly be said to be of the first Importance. Nothing is farther from our Thoughts than to show [<u>sic</u>] the least Disposition to any Sort of rudeness, but we hope it cannot be taken amiss that we, apprehending ourselves so nearly concern'd, should, at least whilst the Matter is in Suspence, humbly represent against it, & take every Measure which the Principles & Laws of our Constitution appear clearly justify, to avert a Storm so very replete with the most dangerous Consequences.

Reverting again to Virginia's recent participation in the French and Indian War, which made additional demands inexpedient, the letter argued that it made them also unjust:

We ... therefore ... most earnestly recommend to you, as the greatest Object of our present Concern, the exerting [of] your whole weight &amp; Influence as far as Decency will allow in opposing this &amp; every other Measure of the Sort; and since we find, upon other Occasions, that you have met with a ready Disposition in the Agents of the other Colonies to cooperate with you, whenever the general Interest of the Continent of America seems to have been concern's, we are of Opinion that their Aid and Assistance, in all Probability can never, upon any Occasion whatever, be more seasonably ask'd than in the present Conjuncture, &amp; we don't doubt but [that] you will endeavor to avail yourself of it.¹

After this letter had been signed, the Committee heard the reading of more recent news in the same dire vein from Montague, written on the eleventh of April, which had been received after its meeting of the middle of July. Its members therefore agreed to write immediately at their table a postscript to the letter drafted by Wythe and Nicholas, in order that Montague might be acquainted fully with their reaffirmed concern "that the parliament seem so determined to carry their Intentions of taxing the Colonies at pleasure into Execution." This addendum should also suggest to him that, " to prevent a precedent of being taxed in this

that the pending Stamp Act might not be enacted before Virginia's General Assembly could put on record its sentiments regarding the proposal.¹ Convening on October 30, 1764, the House of Burgesses turned almost immediately from the usual work of organizing itself to consideration of the state of the colony and ordered the letters of the Committee of Correspondence to be laid before it. After several days of debate on the subject of the projected tax three firm resolutions were reported in mid-November for the preparation of an address to the King and memorials to the House of Lords and House of Commons, as an evidence of the Burgesses' disapproval. And on the same day the resolutions were referred to a committee consisting of Peyton Randolph, chairman, Richard Henry Lee, Landon Carter, Wythe, Edmund Pendleton, Benjamin Harrison, Archibald Cary, and John Fleming.² Randolph, Carter, and Wythe were members of the Committee of Correspondence, which had already reviewed the problem, and another of that group was appointed to join in the writing of the three papers when Richard Bland was added several days later to Randolph's committee.³ After about two weeks of effort spent in drafting the three documents the committee reported to the House,⁴ which was unable from the pressure of other business to

2. Kennedy, ed., <u>Journals of the House of Burgesses</u>, <u>1761-1765</u>, 256, 257.

resolve itself again into a Committee of the Whole to consider them until two more weeks had passed.¹ The address to the King was adopted without change, but the papers to the two branches of Parliament had to be amended before acceptance.² With all of Randolph's committee representing the Burgesses except Carter, Harrison, and Bland,³ a series of conferences with certain members of the Council ensued before the upper branch of Virginia's legislature concurred, December 18, 1764, in the documents; the [[Remonstrance to the House of Commons|remonstrance to the Commons]] was thereby further amended.⁴ When the papers had thus become the official and unanimous statements of the General Assembly, the Burgesses commanded that a copy of each should be inserted in their minutes and that their Committee of Correspondence should send five copies of each to Montague for presentation to the proper authorities in England.⁵ The Committee was conscientiously prompt in transmitting the address and memorials within two days, expressing to the agent "apprehensions that you will meet with Difficulty in getting the memorial to the Commons laid before them, as we have heard of their refusing to receive Petitions from the Colonies in former similar Instances." In such an eventuality Montague was directed

to use the propagandist method adopted by Peyton Randolph when he was refused a hearing on the pistole fee:

It is of special interest that the memorial to the House of Commons, in the form in which it was reported from the committee to the House, was submitted to amendment before its adoption by the Burgesses and to still other amendments before it was approved by the Council. For Thomas Jefferson reports that [[Remonstrance to the House of Commons|George Wythe penned the remonstrance]] in its original form and that, "following his own principles, he so far overwent, the timid hesitations of his colleagues that his draught was subjected by them to material modifications."² And upon another occasion Jefferson said that Wythe wrote it "with so much freedom, that, as he has told me himself, his colleagues ... shrank from it as bearing the aspect of treason and smoothed its features to its present form."³ Despite sundry expurgations of phrases and thoughts too spirited to

2. Jefferson, "[[Notes for the Biography of George Wythe]]", filed under August 31, 1820, Jefferson Papers, Library of Congress. The original authorship of the address to the King and of the memorial to the House of Lords has been variously attributed to Peyton Randolph, Richard Bland, Richard Henry Lee, and Landon Carter.

3. Thomas Jefferson to William Wirt, August 14, 1814, Bergh, ed., <u>Writings of Jefferson</u>, XIV, 168.

secure general acquiescence, however, this [[Remonstrance to the House of Commons|exposition by Wythe for the House of Commons]] of the dangers inherent in its plan of imposing internal taxes on the colonies was yet bold enough to leave no doubt as to Virginia's unalterable opposition to a Stamp Act. Longer than the address to the King or the memorial to the Lords, it was stronger in argument and terminology than either of them, as it should naturally have been, since it was meant for the unreceptive ear of the body in which the threatened tax would be initiated.

Contemporary references to it spoke of it as a "memorial", but it gave itself the stronger name of a "Remonstrance" and stated in its introductory paragraph that "<u>the Council and Burgesses of</u> Virginia, <u>met in General Assembly, judge it their indispensable Duty, in a respectful Manner, but with decent Firmness, to remonstrate against</u>" the pending tax measure, lest "<u>a Cession of those Rights, which in their Opinion must be infringed by that Procedure, may ... be inferred from their Silence, at so important a Crisis</u>." Without raising the somewhat sophistical distinction between internal and external taxation the remonstrance based its claim that the Stamp Act would be unconstitutional on more general principles, bolstered by illustrations from Virginia history of their application:

<u>Vegabonds or Fugitives, but licensed and encouraged by their Prince and animated with a laudable Desire of en larging the</u> British <u>Dominion, and extending its Commerce: On the contrary, it was secured to them and their Descendants, with all other Rights and Immunities of</u> British <u>Subjects, by a Royal Charter, which hath been invariably recognized and confirmed by his Majesty and his Predecessors in their Commissions to the several Governours, granting a Power, and prescribing a Form of Legislation; according to which, Laws for the Administration of Justice, and for the Welfare and good Government of the Colony, have been hitherto enacted by the Governour, Council, and General Assembly, and to them Requisitions and Applications for Supplies have been directed by the Crown. As an Instance of the Opinion which former Sovereigns entertained of these Rights and Privileges, we beg Leave to refer to three Acts of the General Assembly passed in the 32d Year of the Reign of King</u> Charles II (<u>one of which is entitled</u> An Act for raising a Publick Revenue for the better Support of the Government of his Majesty's Colony of <u>Virginia, imposing several Duties for that Purpose) which they thought absolutely necessary, were prepared in England, and sent over by their then Governour, the Lord</u> Culpeper, <u>to be passed by the General Assembly, with a full power to give the Royal Assent thereto; and which were accordingly passed, after several Amendments were made to them here: Thus tender was his Majesty of the Rights of his</u> American <u>Subjects; and the Remonstrants do not discern by what Distinction they can be deprived of that sacred Birth right and most valuable Inheritance by their Fellow Subjects, nor with what Propriety they can be taxed or affected in their Estates by the Parliament, wherein they are not, and indeed cannot, constitutionally be represented</u>.

<u>who exerted herself in the late War it is feared beyond her Strength, insomuch that to redeem the Money granted for that Exigence her People are taxed for several Years to come: This with the large Expenses incurred for de fending the Frontiers against the restless</u> Indians, <u>who have infested her as much since the Peace as before, is so grievous that an Increase of the Burthern will be in tolerable; especially as the People are very greatly distressed already from the Scarcity of circulating Cash amongst them, and from the little Value of their Staple at the</u> British <u>Markets</u>.

It was not enough, however, to show that an imposition of stamp duties was inexpedient from Virginia's point of view A Stamp Act would be inexpedient also from the standpoint of Britain's own economic welfare, for it would prove to be a boomerang to English merchants, a poison in the life-blood of the empire's commerce:

This argument, constituting the article of the protest which was by all odds most likely to make the Commons take notice, had been overlooked or omitted in the observations of the

Committee of Correspondence and was not included in the kindred address to the King or memorial to the Lords. Upon its tenets the fate of the future Stamp Act hinged more directly than upon all other considerations collectively, as will be seen. It is therefore pertinent to comment that, though many other enunciators may have preceded him, George Wythe's pen was the first in the colonies discovered in this investigation to have proclaimed that fundamental doctrine. Finally, in a concluding paragraph, which serves as a logical summation of the three grounds upon which Virginia objected formally to Parliament's unprecedented intention, the [[Remonstrance to the House of Commons|remonstrance assured the Commons]] unequivocally that the General Assembly was determined in its stand:

<u>From these Considerations, it is hoped that the Honourable House of Commons will not prosecute a Measure which those who may suffer under it cannot but look upon as fitter for Exiles driven from their native Country after ignominiously forfeiting her Favours and Protection, than for the Prosperity of</u> Britons <u>who have at all Times been forward to demonstrate all due Reverence to the Mother Kingdom, and are so instrumental in promoting her Glory and Felicity; and that</u> British <u>Patriots will never consent to the Exercise of anticonstitutional Power, which even in this remote Corner may be dangerous in its Example to the interior Parts of the British Empire, and will certainly be detrimental to its Commerce</u>.¹

Lieutenant-Governor Fauquier was told by some of the gentlemen of the committee appointed to draw up this rebuke and its contemporary papers that "their whole Study has been to endeavor to mollify them and [that] they have reason to

1. Kennedy, ed., <u>Journals of the House of Burgesses</u>, <u>1761-1765</u>, 303-304.

hope there is nothing now in them which will give the least offence."¹ Though Wythe's words were necessarily minced in his [[Remonstrance to the House of Commons|original draft of the remonstrance]], lest their desired effect be lost by their very strength, and though some of then were purged by that committee, the House of Burgesses, and the Council, they were nevertheless convincing and resolute. They sought no compromise, bu tan absolute surrender; the pruning knife was brought into play, calculatedly, in order that the force of logical reasoning should not be destroyed by an attitude of gross defiance.

The address to the King, the memorial to the Lords, and the remonstrance to the Commons having been duly despatched, there was nothing to be done but await developments calmly. Before any formal replies were given to the Assembly's papers, however, news reached Virginia that the Stamp Act had been passed early in 1765, to be effective ini the following November. A less dispassionate note was injected into the issue by Patrick Henry, in a reckless manner which may have lacked the merit of thorough premeditation. Or if his actions had been deliberately conceived, they were at best those of an inexperienced upstart.

1. Francis Fauquier to the Board of Trade, December 24, 1764, Virginia Papers (Bancroft Transcripts), I, 273, New York Public Library.

current total of 116 members remained in Williamsburg on the twenty-ninth to conclude its routine business, when he upset the equilibrium of its fruitful attention to ordinary matters by submitting five resolutions against the newly levied tax.¹ Such an event at the fag-end of a session was nothing short of startling to its leaders in a more rational and dignified opposition. Nor was Henry's speech in support of his resolutions quite in line with acknowledged legislative proprieties, for he overstepped conventions by declaring that "he had read that in former times tarquin and Julus [<u>sic</u>] [Caesar] had their Brutus, Charles had his Cromwell, and he Did not Doubt that some good American would stand up in favor of his Country … in a more moderate manner."² So irrelevant an allusion to George III provoked a charge of treason from the presiding officer, whereupon Henry apologized quite abjectly and acceptably to the House.³

1. <u>Id</u>. to <u>id</u>., June 5, 1765, <u>ibid</u>., I, 284-285. On the error of reports that six resolutions were proposed see <u>ibid</u>., 285; Wirt, [[Life of Patrick Henry|<u>Patrick Henry</u>]], 81 <u>n</u>.; Thomas Jefferson to William Wirt, August 14, 1814, Bergh, ed., <u>Writings of Jefferson</u>, XIV, 165-168. The original form of the resolutions and Henry's own account of their initiation and effect are available in Wirt, [[Life of Patrick Henry|<u>Patrick Henry</u>]], 74-76.

The five resolutions were reported with amendments, after acrid debate in Committee of the Whole, on May 30 and were agreed upon by 22 votes to 17 or by narrower margins, the last by a majority of only one. A small alteration in the membership of the House on the next day gave the minority hope that they could rescind all of the resolutions, but the strength which they mustered was equal only to the task of having the fifth, deemed the most inflammatory, blotted out of the <u>Journal</u>.¹ Peyton Randolph had gotten the single vote or its equivalent, for which he is reported to have exclaimed with vehemence, as he left the Burgesses' chamber on the preceding day, that he "would have given 500 guineas...."²