"The Teaching of George Wythe"
Thomas Hunter, "The Teaching of George Wythe," in The History of Legal Education in the United States: Commentaries and Primary Sources, ed. Steve Sheppard (Pasadena, CA: Salem Press, 1999), 1:138-168.
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Chapter 8 text
The Teaching of George Wythe
Thomas Hunter is a sometime law professor and a doctoral candidate in history at The Johns Hopkins University.
Author's note: When George Wythe died in 1806, his most famous student, Thomas Jefferson, stated, "He was my antient master, my earliest & best friend; and to him I am indebted for first impressions which have had the most salutary influence on the course of my life." Likewise, nearly half a century later another famous Wythe pupil, Henry Clay, noted that, "to no man was I more indebted, by his instructions, his advice, and his example, for the intellectual improvement which I made, up to ... my twenty-first year."
For many years George Wythe was a major political figure, representing Virginia in the Continental Congress and the Constitutional Convention, serving as Speaker of the Virginia House of Delegates, and signing the Declaration of Independence. His judicial career was equally impressive, for he was on Virginia's High Court of Chancery for nearly three decades, including fourteen years as the Commonwealth's sole Chancellor. Such accomplishments, however, while impressive, do little to differentiate Wythe from several of his contemporaries, and his true claim to fame lies not in the law or politics, but as a teacher.
For four decades, Wythe instructed the most promising youth of Virginia in both the law and classics, and in 1779 he became America's first university law professor, and only the second in the English-speaking world, when he was appointed Professor of Law and Police at the College of William and Mary. From Jefferson's entrance into the Continental Congress in 1774 until Clay's resignation from the Senate in late 1851, Wythe's students played crucial roles in the nation's legislative chambers. They were equally important in shaping this nation's jurisprudence, for he taught such noted federal and state jurists as John Marshall, Bushrod Washington, and Spencer Roane. Wythe instructed so well that most of his students assumed leading positions very soon after leaving his counsels, many while still in their twenties.
Despite his role in developing several generations of national leaders, not to mention the high political and judicial stations in which he served, George Wythe has not received the scholarly attention bestowed upon many of his contemporaries or students. It was not until 1970 that the first book-length portrait of
Wythe was published, and in the ensuing decades none of the works which have appeared could in any way be termed close to definitive.
Thus, after briefly describing his legal and political career, this essay will examine Wythe's role as Revolutionary Virginia's foremost teacher of both the law and the political process, focusing especially on his seminal ten-year professorship at the College of William and Mary.
* * * * *
George Wythe was born in 1726 or 1727 at his family's home, Chesterville, in Elizabeth City County, Virginia. His parents were Margaret Walker and Thomas Wythe (III), whose grandfather, the first Thomas, emigrated to Virginia in 1680. The first three Thomas Wythes all died quite young, although two lived long enough to serve in the Virginia House of Burgesses.
As for George Wythe's mother, she was the granddaughter of noted teacher, preacher, and controversialist George Keith. The Scottish Keith was "a promising mathematician and student of Oriental languages" before becoming a Quaker and joining the ministry. Coming to America in 1685, Keith was headmaster of a Quaker school until he fell out with the sect because of doctrinal differences. After returning to England, he eventually joined the established church, and in 1702 Keith became the first Anglican missionary sent to America under the auspices of the Society for the Propagation of the Gospel in Foreign Parts. It appears that George Wythe inherited both his Christian name and much of his intelligence from his great-grandfather Keith, although he did not have the minister-teacher's "unbearable temper and carriage."
George Wythe was the second of three children, and when his father Thomas (III) died young, an older brother, Thomas (IV), through primogeniture, inherited the family's Chesterville plantation; their other sibling was a sister, Anne, who married Charles Sweeney, and, as is noted below, a grandson of this union, George Wythe Sweeney, perpetrated one of the foulest deeds in Virginia history.
Because he was not in line to inherit the family plantation, it was determined to situate George in one of the professions, with the law being the eventual choice. His earliest schooling, however, was at the hands of his mother, who, because she was raised a Quaker, was unusually educated for a woman of the day. Besides the traditional basics, Margaret Walker Wythe's tutelage of her son included Latin and Greek. At some point Wythe also briefly attended William and Mary, although it is thought that it was only the college's grammar school.
Wythe's professional instruction began in the mid-1740s, when he began an apprenticeship in the Prince George County law office of his uncle Stephen Dewey. As a leading attorney, Dewey's instructions could have proved quite valuable, yet Wythe later told a friend that his uncle "treated him with neglect, and confined him to the drudgeries of his office, with little, or no, attention to his instruction in the general science of law."8 One commentator has opined that posterity should maybe thank Dewey for his inattentions, for he may "have sharpened Wythe's appetite for learning in the deeper and richer historical basis of legal institutions, and above all, he seems to have given Wythe a thorough grounding in how not to teach!"
After completing his legal apprenticeship, Wythe received his law license in 1746 and initially settled in Spotsylvania County. There he began a wide-ranging practice which included the counties of Caroline, Orange, and Augusta, and he also became married to attorney Zachary Lewis' daughter Anne. The young Mrs. Wythe died less than a year later, however, and several months after, in October 1748, Wythe returned to the Tidewater region, accepting an offer to become clerk of the two most important committees of the House of Burgesses.
These legislative responsibilities did not preclude the practice of law, so once in Williamsburg Wythe resumed his profession and was soon representing members of such influential Virginia families as the Blairs and Custises. In 1750, the young attorney was elected a Williamsburg Alderman, yet a much higher honor came four years later when he was appointed the colony's Attorney General. Wythe, the youngest attorney general in Virginia history, was chosen to succeed Peyton Randolph, who was visiting England, and he resigned the position once Randolph returned to the colony. While serving as attorney general, another honor came to Wythe when he was elected to the House of Burgesses from Williamsburg.
In 1755, Thomas Wythe (IV) died without an heir and his brother George inherited the Chesterville
plantation in Elizabeth City County. It was also at this time that Wythe again married, to Williamsburg heiress Elizabeth Taliaferro, who, being fourteen or fifteen years old, was half of her husband's age. Despite the age difference, theirs was an extremely happy thirty-two year marriage, although their only child died in infancy.
Wythe, who suddenly found himself with his own substantial holdings as well as being married into a wealthy family, could at last "borrow time from his busy professional life for [the] study of the classics and early English literature and law." Such an opportunity was extremely welcomed, for one author has opined that the attorney "thirsted like a living Tantalus for the refreshing springs of the ancient authors." These pursuits had their obvious results, for Thomas Jefferson later called his law teacher "the best Latin and Greek scholar in the State.”
Wythe, while pursuing such academic subjects, did not neglect his professional responsibilities, for he continued his rapid assent [sic] into Virginia's highest legal and political circles. His law practice continued to prosper, and at some early time he became admitted to practice before the colony's highest court, the General Court. The attorneys who practiced before the appellate General Court were a highly select group, usually no more than ten in number, and included such names as Peyton and John Randolph, Robert Carter Nicholas, and Wythe's lifelong rival, Edmund Pendleton. Wythe soon had one of the most notable practices before the court, and Jefferson later noted that Wythe "held without competition the first place at the bar of our general court for 25 years."
As for public service, Wythe lost a race for the House of Burgesses in 1756 when he ran for one of the two seats allotted to his native Elizabeth City County. Two years later, however, he was returned to the House by being elected to the William and Mary seat, for which the electorate was only the college's President and its Masters. In 1761 Wythe received another connection to the college when he was appointed to its Board of Visitors; by this time, however, he was no longer representing the college in the Burgesses, for overcoming his previous defeat he had won election to one of the Elizabeth City County seats.
Wythe was elected Clerk of the House of Burgesses in 1768, a position he would hold for six years, and that year also saw him selected as Mayor of Williamsburg. In addition, his growing influence led to his 1765 appointment to a committee, along with Peyton Randolph, John Randolph, Benjamin Waller, and Robert Nicholas, to collect, edit, and publish the colony's statutes, with the resulting collection being known as the "Code of 1769."
As the Revolution approached, Wythe became known as an ardent rebel, and Jefferson later recalled that "instead of higgling on half-way principle, as others did ... [Wythe] took his stand on the solid ground that the only link of political union between us and Great Britain, was the identity of our Executive; that that nation and its Parliament had no more authority over us, than we had over them." An early example of these feelings came in the 1760s, when Wythe's "remonstrance against the Stamp Act was very bold and strong.” Thus, with such sentiments added to his superb qualifications, it was no surprise when, on August 11, 1775, Wythe, along with Jefferson, Peyton Randolph, Richard Henry Lee, Richard Bland, Benjamin Harrison, and Thomas Nelson, was elected to the Second Continental Congress.
Wythe served in Congress until December 1776, and despite making few speeches he cultivated many friendships and wielded much influence. John Adams was much impressed by Wythe's legal abilities, while Dr. Benjamin Rush of Philadelphia thought him "[a] profound lawyer and able politician. He seldom spoke in Congress, but when he did his speeches were sensible, correct and pertinent. I have seldom known a man [to] possess more modesty, or a more dove-like simplicity and gentleness of manner."
By February 1776 Wythe was strongly arguing for independence, yet he did not initially sign the Declaration of Independence in July, for the Virginia delegation had earlier selected Wythe and Richard Henry Lee to travel back to Virginia to attend the convention then drafting a state constitution. The two men left Philadelphia on June 13, yet by the time they arrived in Virginia the drafting, led by George Mason, was well in hand. Wythe, however, was appointed to a small committee to design a state seal, and it is thought that he played a decisive role in choosing the final design.
Wythe returned to Philadelphia in August, and he signed the Declaration in a space his colleagues had specifically left blank in his honor at the top of the delegation's signatures. Wythe remained in Congress
until late that fall, returning to Virginia because he, Jefferson, Pendleton, George Mason, and Thomas Ludwell Lee had been appointed to a committee to revise the state's laws. Earlier, there had been several collections of the laws, such as the Code of 1769 produced by Wythe and his colleagues, but this was to be the first thorough revision of all the Commonwealth's statutes. The committee eventually consisted of only three members, Wythe, Jefferson, and Pendleton, and they divided the work such that Jefferson's area of responsibility would be the common law up to 1619, Wythe was to study the British statutes enacted since 1619, and Pendleton was to look at all Virginia-based law.
The work of the revisors was complete in June 1779, when they sent 126 bills to the General Assembly. The legislature, however, dragged its feet in enacting the proposals, and it was only six years later in 1785 that through the efforts of future President James Madison many of the revisors' suggestions were adopted. One reason for this delay might have been that while the majority of the 126 proposed statutes only reiterated the existing law, minus arcane or inappropriate language, under Jefferson's lead the revisors had suggested several profound alterations. Among the suggestions eventually approved were the abolish¬ing of primogeniture, transforming estates in fee tail to fee simple, and establishing religious freedom. Other suggestions equally audacious, however, such as bills promoting public education, a public library, and enlightened penal policies, did not win approval.
While on the revision committee in 1777, Wythe was chosen as Speaker of the House of Delegates (as it was now termed under the new Constitution). An even greater honor came the following year upon the restructuring of Virginia’s court system, when the General Assembly created three different superior courts which would have appellate jurisdiction in their specialties. A five-member General Court would hear cases at law, while a three-man High Court of Chancery would examine suits in equity, and a Court of Admiralty would make decisions involving maritime law. In addition, the judges of all three courts would, together, form a supreme Court of Appeals.
Of the three separate superior courts, it was considered that the Chancery court, which would meet in April and September, was the most important, and only the foremost attorneys in Virginia were considered in filling the three slots. According to Nathaniel Beverly Tucker, few attorneys of the day had all of the qualifications necessary for the position, for "Integrity and talent were abundant, but a learned lawyer was indeed a rara avis." George Wythe, however, was "the one man in the state who had any claims" to meeting all of these qualifications. The members of the General Assembly obviously agreed, for on January 14, 1778, the names of Wythe, Edmund Pendleton, and Robert Carter Nicholas, were placed in nomination for the new court, and they were elected unanimously.
Thus, by the fall of 1779 Wythe was well ensconced on the High Court of Chancery. By filling this high judicial station, however, he could no longer practice law, nor could he serve in the state or national legislature. Thus, it is likely that Wythe was looking for a new challenge, and such was soon offered by his former student Thomas Jefferson.
* * * * *
During his first fifty years, George Wythe did not solely devote himself to politics and the law, for he also gained an enviable reputation as a teacher of young men. Although there likely were earlier students, the first known person to study law under Wythe was Thomas Jefferson (1743-1826). After attending William and Mary for two years, Jefferson began his legal apprenticeship in 1762, and he spent three years reading under Wythe's supervision, although the majority of the first year was spent at home in Albemarle county. As was traditional, Jefferson first read Coke on Littleton, and his later readings touched on both the theoretical and practical sides of the law; among the law books he purchased at this time were several volumes on pleading as well as collections of Virginia and British statutes.
Wythe also had Jefferson read widely in the humanities, for the latter purchased and read various works on history, literature, philosophy, religion, and science. As for his routine, shortly after he was admitted to practice Jefferson advised an aspiring lawyer to study such subjects as science, ethics, and religion before breakfast, devote the hours between eight o'clock and noon solely to the law, and then spend the afternoon and evening reading history and literature. While Jefferson could have followed such a rigorous reading schedule while at home, it is known that part of his time in Williamsburg was also spent attending sessions of the General Court and following the legislature; in addition, the young student frequently dined at the
Governor's Palace with Wythe, William and Mary professor William Small, and Governor Francis Fauquier, and he also spent much time practicing the violin.
Jefferson, of course, would go on to author the Declaration of Independence, serve as Governor of Virginia, Minister to France, Secretary of State, Vice President, and our nation's third President, and, in his retirement, found the University of Virginia. Throughout this impressive career, the bond between Jefferson and his legal mentor remained extraordinarily strong, and in later years Jefferson would refer to Wythe at his "second father,” while Wythe "often said that [Jefferson was] dearer to him than any relation he had."
While Wythe undoubtedly taught other law students in the 1760s besides Jefferson, his next known student is James Madison (1749-1812), who studied law during 1772-1773. Madison was a second cousin to the man of the same name who would follow Jefferson in the Presidency, and despite being admitted to the bar he never practiced law. Instead, Madison, in 1773, became professor of natural philosophy and mathematics at William and Mary, and two years later he was ordained in the Church of England. In 1777, the Reverend Madison was elected President of William and Mary, a position which he held for the remainder of his life, and in 1790 he also became the first Episcopal Bishop of the Diocese of Virginia.
Following Madison as a Wythe pupil was St. George Tucker (1752-1827), a native of Bermuda who came to Virginia specifically to study under Wythe. Tucker had also been formally enrolled at the Inner Temple in London, but his father, upon learning about Wythe's instruction, wrote that with "so good a tutor," Tucker should stay in Williamsburg. Tucker studied under Wythe from 1773 to 1775, and he later succeeded his teacher as Professor of Law and Police at William and Mary (1790-1804). In addition, Tucker served on the Virginia Court of Appeals, was the United States Judge for the District of Virginia, and edited the first American edition of Blackstone's Commentaries.
Another early Wythe pupil was James Innes (1754-1798), a one-time attorney general of Virginia who was known for his both great oratory and legal ability. Although forgotten today, Innes would have achieved greatness but for ill-health and an untimely death. His brother Harry Innes (1752-1816), a Federal judge in Kentucky from 1789 until his death, has been listed by one historian as an early Wythe student, although another scholar states that this teaching was "not likely."
A handful of other prominent attorneys have also been mentioned as possible Wythe students before he assumed the professorship at William and Mary. The foremost among these is Edmund Randolph (1753-1813), the first Attorney General of the United States, Governor of Virginia, and United States Secretary of State. Three twentieth-century sources cite Randolph as an early Wythe student, although it has traditionally been assumed that he received his legal education under his father John, a one-time Virginia Attorney General; the latest colonial Williamsburg pronouncement is that it is currently unknown with whom Randolph studied law. Other possible students include Samuel Jordan Cabell (1756-1818), who served in Congress from 1785 to 1803, as well as four additional delegates to Virginia's Ratifying Convention, Thomas Read (c. 1735-1817), James Mercer (1736-1793), Andrew Moore (b. 1752), and Warner Lewis (ca. 1747-1791).
While Wythe's pre-Revolutionary teaching undoubtedly encompassed more students than just Jefferson, Madison, Tucker, and Innes, his reputation as a great teacher rests principally on his connection to the College of William and Mary, through which his teaching would become available to a much wider audience.
* * * * *
Founded in 1693, the College of William and Mary was where the sons of the Virginia gentry went to be educated when they did not go abroad. While normally a staid institution that saw little controversy, this changed dramatically at the start of Revolution, for at that time the student-body was "staunchly rebel," while the faculty was dominated by Tories, the most notorious being the school's President John Camm. When student, and private Wythe pupil, James Innes raised a company during the first days of the War, he was condemned by the faculty, and this raised the ire of the school's Visitors, one of whom was George Wythe. The Visitors responded to the faculty's Toryism by forcing out both the Master of the Indian School and the Professor of Divinity, and when President Camm disagreed with the Visitors' authority for such actions, he too was suspended.
To replace Camm, the Visitors in the Spring of 1777 selected Wythe's former law pupil James Madison as the College's new President; although only twenty-eight, the Reverend Madison was already known for both his great intellect and his republican sympathies. A more sweeping attempt to alter the college occurred two years later, when Thomas Jefferson proposed to drastically change the structure of his alma mater through the revised laws that he, Wythe, and Pendleton were then formulating.
Jefferson wished to lessen the ties of the school to the established church, increase its public support, and totally revamp its curriculum. As for the latter, in bill number 80 of the revisal, Jefferson proposed the creation of eight professorships at William and Mary: moral philosophy, fine arts, and the laws of nature and nations; law and police; history, civil and ecclesiastical; mathematics; anatomy and medicine; natural philosophy and natural history; ancient languages, oriental and northern; and modern languages. The professor of law and police would be responsible for teaching municipal law, which included the common law, equity, and merchant, maritime, and ecclesiastical law, as well as economical law, defined as politics and commerce.
Professorships in law, history, medicine, and modern languages would be new to the faculty, and Jefferson proposed to delete the chair in divinity as well as the Indian/grammar school. He later wrote that his purpose was "to enlarge [William and Mary's] sphere of science, and to make it in fact an University."
Ironically, despite Jefferson's purpose of changing the institution from a church-based into a public-based institution, revisal bill 80 was killed in the General Assembly by religious dissenters; Jefferson later wrote, "the religious jealousies ... of all the dissenters took alarm lest this might give an ascendancy to the Anglican sect and refused acting on that bill.”
This defeat did not deter Jefferson from his goal of restructuring the college, however, for after his election as Governor of Virginia in 1779 he also became a member of the William and Mary Board of Visitors, and through this body he succeeded in seeing through most of the changes which had been blocked by the General Assembly. On December 3, 1779, the Board of Visitors gave the professors and president of the college, acting collectively as "the Corporation," the power to revise the institution's statutes and by-laws, and the following day the Corporation followed Jefferson's instructions by making numerous changes in the school's structure. The Sage of Monticello later recalled: "I effected ... a change in the organization of [William and Mary] by abolishing the Grammar school, and the two professorships of Divinity and Oriental languages, and substituting a professorship of Law and Police, one of Anatomy, Medicine and Chemistry, and one of Modern languages.” The college's charter, which could only be changed by action of the General Assembly, limited the school to six professorships, so Jefferson's initial plans had to be altered by the deletion of both the traditional professorship of oriental languages and the proposed professorship of history.
The chair in law was the first of its kind at an American university, and second in the English-speaking world, only antedated by Oxford's Vinerian chair of law, first held in 1758 by Sir William Blackstone. As for the seemingly strange name, "law and police," the latter word "did not refer to enforcement of the criminal law but was a transliteration of the Greek word for state. In the context of the William and Mary curriculum it meant government or political science."
While certainly revolutionary, that the first institutionalization of legal education in America happened in Virginia should come as no surprise. In most of the colonies the bar had come into much disfavor by generally siding with the crown, but in Virginia the opposite was true, for the revolution had been spearheaded by the colony's lawyers. Jefferson saw a professorship in law and politics as a way to teach not only the legal profession, but also republicanism, and in Virginia this idea was met with "enthusiastic approval."
As for who would fill the new chair of law, the obvious choice, in fact the only choice, was George Wythe. The Chancellor had a profound knowledge of the law, he had already demonstrated great skill in imparting such knowledge to intelligent young men, and just as important, he was a zealous republican. W. Hamilton Bryson has stated that "It is difficult to conceive that anyone more acceptable, more appropriate, more competent, or more scholarly could have been found; no one else was considered."
On December 4, 1779, the Visitors appointed three men to fill the new chairs, all of whom "were
thoroughly in sympathy with the visitors" regarding the ongoing struggle with Great Britain. Charles Bellini was named Professor of Modern Languages, Dr. James McClurg was selected as Professor of Anatomy and Medicine, and Wythe became the Professor of Law and Police. These three, plus President Madison, who would also hold the Chair of Natural Philosophy and Mathematics, and the Reverend Robert Andrews, who was Professor of Moral Philosophy, the Laws of Nature and of Nations and of the Fine Arts, would comprise the institution's faculty.
Besides the addition and deletion of various subjects, another change made by the faculty was the adoption of the elective system. No longer would the school have any mandatory subjects; rather, students could decide which subjects and under which professors they wished to learn. Accordingly, at the first faculty meeting after the reorganization, held on December 29, 1779, Wythe and his colleagues resolved that out of the courses offered by Wythe, Madison, and Andrews, "a Student on paying annually one thousand Pounds of Tobacco shall be entitled to attend any two ... and that for fifteen hundred Pounds he shall be entitled to attend the said three Professors." With the changes in structure, "William and Mary now became a university, the first such in the new nation," and it became known as "The University of William and Mary."
* * * * *
George Wythe entered into his duties as Professor of Law and Police at William and Mary immediately after his December 1779 appointment, and such alacrity was necessary, for the school year was scheduled to begin on January 17. As for the yearly schedule, the month of April was designated as the school's spring vacation, and the term following would last from the first of May into July. A fall term would then begin around October first.
Undoubtedly drawing on his previous teaching, Wythe quickly designed an innovative, rigorous, and enjoyable curriculum for his students. He continued the tradition of having students read more legal treatises and then systematically forming the notes they took into an alphabetized legal notebook/dictionary that would summarize the current common law of the jurisdiction—a process typically called "common placing" because the notebooks were known as "commonplace books." Although he only finished commonplacing legal subjects through the letter "L," John Marshall's notebook is one of the best sources in determining the readings Wythe assigned his pupils, and most of the future Chief Justice's information apparently came from three works: Bacon's New Abridgement of the Law; Blackstone's Commentaries; and the 1769 Acts of Assembly ... of Virginia.
In addition to assigning readings, Wythe also lectured twice a week. No one knows the exact contents of Wythe's lectures, although some modern commentators state that Wythe intricately discussed the substantive and procedural details of the law, while others posit that the material was more theoretical in nature. In reality, Wythe likely touched upon the major legal points of Blackstone and other sources, paying especial attention to how Virginia's law was different from England's. It seems likely that Wythe also discussed materials more akin to political science, and since the first written constitutions in the English-speaking world had just been produced in various colonies, Wythe has been called the first commentator on constitutional law.
The best evidence of the nature of Wythe's lectures comes from 1810, when Governor John Tyler asked Thomas Jefferson to edit and publish Wythe's lecture notes. Tyler noted:
Judge Roane has read them, or most of them, and is highly pleased with them, thinks they will be very valuable, there being so much of [Wythe's] own sound reasoning upon great principles, and not a mere servile copy of Blackstone, and other British commentators,—a good many of his own thoughts on our constitutions and the necessary changes they have begotten, with that spirit of freedom which always marked his opinions.
In response, Jefferson declined this task, noting that he had not practiced law for thirty-seven years. For posterity's sake, this decision was extremely unfortunate, for the lecture notes were never published, and the manuscript's whereabouts has been unknown for over a century.
In addition to the lectures and readings, for his students Wythe designed two institutions which were
new to North America. The first was a moot court, the concept for which likely came from the London Inns of Court, which, a couple of centuries previous, had held "mootings." These earlier exercises had seen the member-barristers deliver arguments on both sides of set cases;62 however, Wythe reversed the process by having the students themselves do the arguing.
Wythe decided to hold the moot courts in the courtroom of the Capitol, which was empty after the government moved to Richmond at the end of April 1780,63 and he and some of his colleagues acted as judges while the citizens of Williamsburg attended as spectators. Wythe student John Brown reported to his uncle in July 1780 that the "Moot Court [is] held monthly or oftener in the place formerly occupied by the Genl Court in the Capitol. Mr Wythe & the other professors sit as Judges[.] Our Audience consists of the most respectable of the Citizens, before whom we plead Causes given out by Mr Wythe [--] Lawyer like I assure you.”64
Thomas Jefferson thought highly of the moot court concept, stating that in addition to teaching legal procedure, such an institution gave "opportunities to students of practicing their lessons in Rhetoric, of habituating themselves to think and to speak with method, and lessens the shock of the premier debut at the bar: so terrible is the first essay of strength before the public.”65 Of course it is now a universal practice ill American law schools to have both a moot court classes in trial advocacy.
Wythe's second institutional innovation was the moot legislature. This too was held in the old Capitol, in the legislative chamber last used by the General Assembly on Christmas Eve 1779, and Wythe served as Speaker while his students debated the merits of proposed legislation. John Brown reported that Wythe "form'd us into a Legislative Body, consisting of about 40 members[.] Mr Wythe is speaker to the House, & takes all possible pains to instruct us in the Rules of Parliament. We meet every Saturday & take under our consideration those Bills drawn up by the Com[mit] tee appointed to revise the laws, the[n] we debate & Alter ... with the greatest freedom.”66
Wythe designed his moot legislature to prepare his students for the leading roles that he anticipated them soon taking in the state and national legislatures, and his ultimate goal was to create a class of ardent, well-prepared republicans. Through an exercise that they very much enjoyed, his students learned both the intricacies of legislative maneuvering as well as the substance of important, relevant issues. While the 'students in 1780 debated the laws proposed by the recent revisal, the material used in Wythe's later classes included proposals then under consideration in both the General Assembly and Congress. For example, Tommy Shippen in 1784wrote that an Impost measure recommended by Congress was then under debate in the moot legislature, and that he was attempting to have it defeated by severely altering it in committee.67
As would be expected, Wythe's students thought highly of both the moot court and the moot legislature, and John Brown noted: 'These Exercises, serve not only as the best amusement after severer studies, but are very usefull & attended with many important advantages.”68 Wythe's law class was undoubtedly the school's most popular, for even during its first year approximately half of William and Mary's eighty students enrolled to study under the law professor.69
While the students obviously enjoyed the moot courts and moot legislatures, there were other things at William and Mary to add to a student's law studies as well. For example, the Phi Beta Kappa Society had been formed at William and Mary several years earlier, and one historian has stated that membership in this was "an essential part of law study at the College because of the opportunity to participate in its debates.”70 In addition, there were the other courses offered at the college, and it has been suggested that Professor Andrews' course on moral philosophy was an important supplement to Wythe's because of its treatment of natural law.71 Wythe undoubtedly expected that the law students who came to Williamsburg without any prior collegiate training would also enroll in some of these other courses, for he "never wished to see young men [at William and Mary] who meant to stay but two years,--at least, unless they had made a considerable progress before.”72
At the end of their studies, Wythe's students could receive the degree of Bachelor of Law, although because of the requirements it is likely that few did. For the degree, one would have to "have the requisites for [the] Bachelor of Arts [degree, and] must moreover be well acquainted with civil History, both Ancient and Modern, and particularly with municipal Law and police." As for what it would take to earn the Bachelor of Arts, "the Student must be acquainted with [the various] branches of the Mathematics, both
theoretical and practical, ... Natural Philosophy[,] ... Logic, the Belles Lettres, Rhetoric, Natural Law, Law of Nations, ... Geography and of Ancient and Modern languages.”73 In short, to earn the LL.B., one would have to successfully complete the courses offered by Professors Wythe, Madison, Andrews, and Bellini, as well as show knowledge in other subjects.
As for a student's daily routine, Tommy Shippen, who in 1784 was attending the lectures of Wythe and Madison, told his father: [B] efore Breakfast, I generally read an hour and a half, some times two hours in Blackstone or else am employed in compositions, which by the advice of my instructors I pay a great deal of attention to. From breakfast to dinner, I read Blackstone, Hume or Montesquieu. After dinner If I dine at home ... I play a piece of music on the violin, or read some entertaining book in French or ... some favorite Roman author Horace, Virgil or Terrence.... At night ... read ... until 10, 11, or 12 o'clock.... But as Mr. Wythe lectures every Tuesday and Mr. Madison every Thursday and Saturday ... I can read very little on those days between breakfast and Dinner, as we are at College from 10 to 12.74 Undoubtedly, the readings, lectures, moot courts, and moot legislatures were all important in Wythe's goal of educating the next generation to be skilled in both the law and public service. What should also not be overlooked, however, is the moral tone that Wythe set for his students. One biographer has stated that "Wythe's incorruptibility even in the smallest matters became legendary,”75 another has called Wythe's integrity "truly stunning,”76 and a contemporary minister stated that Wythe was "the only honest lawyer he ever knew.”77 While practicing law, if Wythe ever doubted the truth of what a client told him, he would either drop the case or require the client to swear an oath.78 Many compared Wythe to Aristides the Just, 79 while Thomas Jefferson made a different classical allusion: No man ever left behind him a character more venerated than George Wythe. His virtue was of the purest tint; his integrity inflexible, and his justice exact; of warm patriotism, and, devoted as he was to liberty, and the natural and equal rights of man, he might truly be called the Cato of his country, without the avarice of the Roman; for a more disinterested person never lived.8o As would be expected, Jefferson was quite proud of Wythe's law class, and in July 1780 he told his future successor James Madison, "Our new institution at the college has had a success which has gained it universal applause. Wythe's school is numerous. They hold weekly courts and assemblies in the capitol. The professors join in it; and the young men dispute with elegance, method and learning." Jefferson then revealed what he saw as the true mission of Wythe's teaching by stating: This single school by throwing from time to time new hands well principled and well informed into the legislature will be of infinite value.”81
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While Wythe's classes got off to a splendid start, the simmering conflict with Britain caused much concern by the latter months of1780. Much of this centered on the fear of an enemy invasion into Virginia, the threat of which greatly affected the work of the college. At the end of October, Wythe student John Brown wrote that the "Invasion of the English" was "expected daily," and the college therefore had been "intirely deserted by every Stud[en]t but one or two who are sick." He also added that "it is more than probable that College will be suspended for some time[.] Mr Madison [is] talking of resigning his Professorship, & the Stud[en]ts [have] all turned Soldiers & everythin[g is] in the utmost Confusion.”82
These fears were fully realized on January 5, 1781, when troops under Benedict Arnold occupied Williamsburg, and although they did not stay long, the raid disrupted the college's winter session. Despite the interruption, Wythe advertised that his classes would reconvene on May 1, 1781, yet if such happened the session lasted only a few weeks. This was because Cornwallis and his British troops entered Williamsburg in June of 1781, after which William and Mary remained closed for approximately eighteen months.83
On July 4, 1781, Cornwallis evacuated Williamsburg on his way to Yorktown, but shortly thereafter Lafayette
and the French occupied the college town, followed by Washington and the Americans in the middle of September. Upon the invitation of Wythe, Washington set up his headquarters in the law professor’s residence,84 and after the British surrender at Yorktown, the French encamped in Williamsburg for nine months, with Rochambeau staying in the Wythe house. The French leaders appear to have been quite taken with the still-closed William and Mary, for Chastellux wrote: "The beauty of the building is surpassed by the richness of its library, and still farther by the distinguished merit of... its professors, such as the Doctors Madison, Wythe, Bellini ... who may be regarded as living Books." The French general then noted that these professors "have already formed many distinguished characters, ready to serve their country in the various departments ofgovernment.”85
Unfortunately, the average French soldier was less inclined to honor the college and its vicinity, and this caused Wythe, only six days after the surrender at Yorktown, to write Washington concerning the institution's protection. Wythe mentioned that "until the british invasion, the university was in a prosperous state. A respectable number of young gentlemen in it were pursuing their studies with such assiduity, and some of them had made such progress, as I venture to say, would have given you pleasure." The professor of law was confident that such success would continue after peace was restored, but he wished Washington to ask Rochambeau to make sure that his officers protected the college, especially its "costly library [and] a valuable apparatus for making philosophical experiments.,”86
Wythe's fears proved prescient, for a couple of months later the carelessness of the French caused the Governor's Palace and a wing of the College to be destroyed by fire, including the much prized library and scientific equipment. Thus, there likely was much relief when the French finally began evacuating Williamsburg on July 1, 1782, a process which took the remainder of the summer. It is unknown when, exactly, Wythe was able to restart his classes, although it obviously took some time to get the college back in the condition in which it could regain its former functions.87
It appears, however, that Wythe was able to restart his classes sometime in 1783, and late that year he told his friend John Adams that he was once again settled in Williamsburg, "assisting, as professor of law and police in the university there, to form such characters as may be fit to succeed those which have been ornamental and useful in the national councils ofAmerica.”88
Earlier that year, Richard Henry Lee wrote Wythe that Lee's son Ludwell was again going to study law under Wythe, and this letter is notable for giving evidence that young men from neighboring states would be venturing to Williamsburg to study under Wythe. Lee wrote: "I am happy to be informed that sensible men in the neighboring Countries, entertain a proper sense of the benefits to be derived from your benevolent attention to the instruction of youth; as I understand that young gentlemen now of Philadelphia propose to finish their studies with yoU.,,89
Within a short period Wythe's classes regained their former size, and the teacher's methods and purposes remained as before, especially the nurturing of future state and national leaders through such devices as the moot legislature. In February 1784, Wythe student Tommy Shippen wrote his father: "Last Saturday was the day of my political birth, if I may call so, the day on which I first assumed the character of a Legislator; for then I delivered an oration for the first time in our grand and august Assembly." Shippen noted that "very lately Mr. Wythe has [had] a lofty presidential Seat erected [in the legislative chamber], which adds very much to his dignity and may with great propriety be called his hobby horse.... This throne has a greater effect in throwing a damp upon the spirits of the speaker, than you can imagine." Despite being extraordinarily nervous, after delivering his first speech Shippen felt amply rewarded, by both the experience gained and the applause he received from his fellow students.90
Not only the students but also various visitors to the college thought quite highly of Wythe's program. In 1784, for example, Walker Maury, who had just moved from Orange county to become the headmaster of Williamsburg's grammar school, wrote Thomas Jefferson: As to the university, I cannot conceive an institution better planned, or more judiciously managed for the forming, either the lawyer, or the statesmen. You can judge better than I can, what advantages youth must reap from meeting twice a week in Mr. Wythe's school, and going thro all the forms of pleadings of a court of judicature, with the utmost exactness and decorum,
and from assembling once a fortnight, as a body of Legislators, in whom you see our assembly in miniature debating, at least many of them, extempore, on important questions of state. Some of their harrangues wou'd be heard with pleasure in any house of representatives; and the whole is conducted with, perhaps, more spirit than was ever display'd in any institution of this nature.91
Jefferson also continued to take great pride in Wythe's law program, and in late 1787 South Carolinian Ralph Izard wrote him: "I have heard you speak of the University of Williamsburgh, and of the abilities of Mr. Wyth, which make me desirous of [my eldest son Henry] being placed for two, or three years under the tuition of that Gentleman.”92 To this proposition, the Virginian sent his ardent approval: "I cannot but approve your idea of sending your eldest son, destined for the law, to Williamsburgh." After briefly noting the excellent instruction offered by Professors Madison and Bellini, Jefferson wrote, "But the pride of the Institution is Mr. Wythe, one of the Chancellors of the state, and professor of law in the college. He is one of-the greatest men of the age, having held without competition the first place at the bar of our general court for 25 years, and always distinguished by the most spotless virtue." As for Wythe's methods, his early student continued, "He gives lectures regularly, and holds moot courts and parliaments wherein he presides and the young men debate regularly in law, and legislation, learn the rules of parliamentary proceeding, and acquire the habit of public speaking." Jefferson then added his ultimate praise when he stated, "I know no place in the world, while the present professors remain, where I would so soon place a son.”93
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An early twentieth-century historian has commented that "If the test of the teacher is the ability and character of the students he turns out into the world and the respect which they retain for him in the more mature years ... , Wythe must have been one of the greatest of inst:ructors.”94 While only a handful of Wythe's students at William and Mary have been identified, a brief perusal of this small roster conclusively shows the truth of this comment.95
If judged by his future impact, Wythe's most notable student at William and Mary was undoubtedly John Marshall (1755-1835), the most important jurist in American history. Marshall, who was already somewhat familiar with Blackstone, spent only three months in Williamsburg, for he was eager to start a law practice. During that time, however, he was able to compile a commonplace book of nearly 200 pages, containing over seventy subject headings, from "Abatement" to "Limitation of Actions.”96 One of Marshall's classmates William Short remembered that the future Chief Justice went "to the bar, as I well know, with little even general knowledge of law, & less particular & practical law learning." Short also recalled that "[t]he most important cause w[hic]h was argued before [Wythe's moot court] was one with four of us on each side. Marshall led one side & I the other.... The auditory at that time certainly considered my speech far superior to his.”97
Despite the brevity of Marshall's formal legal education, Short would be the first to admit that "No man has ever had in this country a more successful & more brilliant career.”98 Marshall developed a strong law practice, and later served in Congress, as Secretary of State, and, for his last thirty-four years, as Chief Justice of the United States. Although Wythe's influence was greater on some of his other students, especially Jefferson, one commentator has opined that Marshall's decision in Marbury v. Madison was likely influenced either by Wythe's teaching or the Professor's reasoning in a 1782 decision, Commonwealth v. Caton, discussed below.99
One of Marshall's classmates at William and Mary, Bushrod Washington (1762-1829), would be the Chief Justice's leading friend and supporter on the U.S. Supreme Court, not to mention an eminent jurist in his own right. George Washington's "favorite nephew," Bushrod graduated from William and Mary in 1778 and then returned to Williamsburg in early 1780 to attend Wythe's lectures. Unlike Marshall, Washington stayed through the fall, and after service in the army he furthered his training by apprenticing in James Wilson's Philadelphia law office. Clearly one of the new nation's best-educated attorneys, Washington maintained an impressive law practice until his 1798 appointment to the U.S. Supreme Court. Although largely forgotten today, Washington was an influential and stabilizing force on the Court for three decades, serving until his death in 1829.100 During the decades when Marshall and Washington were championing a strong national government
through their work on the federal Supreme Court, a former classmate, Spencer Roane (1762-1822), was the nation's leading jurist embracing the doctrine of states' rights. Roane, who was considered "a prodigy of his generation," was one of Wythe's "most brilliant pupils." Like Washington, he continued his legal education in Philadelphia, after which he won election to the House of Delegates at age twenty-one, became a judge of the General Court six years later and was a member of the Court of Appeals at age thirty-two. Roane served on Virginia's highest court the last twenty-eight years of his life, and he quickly became the nation's most noted strict-constructionist judge. Had Jefferson, instead of Adams, been able to appoint a Chief Justice to replace Oliver Ellsworth, he would have chosen his friend and supporter Roane, rather than Marshall, and such a choice clearly would have changed this nation's history.101
Another famous Virginian, the nation's fifth president, James Monroe (1758-1831), may have attended Wythe's classes in 1780, although this has yet to be conclusively proved. Monroe attended William and Mary from 1774 until he left to fight in the Revolution in 1776, and disappointed in his failure to receive a proper command, he was advised by Jefferson to study law. Thus, according to his leading biographer, Harry Ammon, "Monroe re-entered William and Mary early in 1780 and joined William Short and [John F.] Mercer in reading law under Jefferson’s direction.”102 It is unknown if his association with William and Mary, which Ammon thinks "was probably nominal,”103 included the studying of law under Wythe, although it is clear that Monroe at least contemplated attending the professor's lectures-and this caused him some uncertainty about following Jefferson to the new capital in Richmond. Monroe's dilemma is clear from a March 7, 1780, letter he received from his uncle Joseph Jones: If Mr. Wythe means to pursue Mr. Blackstone's method, I should think you ought to attend him from the commencement of his course, if at all ... indeed I incline to think Mr. Wythe under the present state of our laws will be much embarrassed to deliver lectures with that perspicuity and precision which might be expected from him under a more established and settled state of them. The undertaking is arduous and the subject intricate at the best.... Whichever method he may like, or whatever plan he may lay down to govern him, I doubt not it will be executed with credit to himself and benefit to his auditors.104 The uncle went on to say that were he Monroe, he would follow whatever suggestions Jefferson made, and, in the end, Monroe followed Jefferson to Richmond. This letter and Monroe's eventual actions, however, in no way prove whether or not he attended Wythe's lectures while still in Williamsburg. It seems intuitive that Jefferson would recommend to any aspiring attorney the advantages offered by attending Wythe's lectures. In addition, it is known that William Short was a Wythe pupil while also reading law with Jefferson, and most importantly, there is no other good reason why Monroe would re-enroll in William and Mary. Still, while every author seems to know the definitive answer to this question—of thirteen sources consulted, eleven list Monroe as a Wythe student, while two emphatically deny the association 105--the fact remains that there is no conclusive proof one way or the other.
While Monroe's attendance is uncertain, another student who definitely did attend Wythe's lectures in 1780, after facing the same sort of dilemma, was John Brown (1757-1837); and his letters to an uncle give us our best picture of Wythe's law class that year. Brown, the son of a prominent Presbyterian minister in the Shenandoah Valley, attended Princeton until it was captured by the British, and he then travelled south to William and Mary to continue his collegiate education. While in Williamsburg, Brown determined to study law, and in the fall of 1779, Virginia's Attorney General Edmund Randolph, upon the recommen¬dation of college president Madison, took Brown as an apprentice, "without a fee, provided I would assist him in writing.”106
Several months after Brown began this tutelage, the Professorship of Law and Police was established, and on December 9, 1779, the young apprentice wrote his uncle: . William & Mary has undergone a very considerable Revolution; The Visitors met on the 4th Instant & form'd it into a University; annul'd the old Statutes, abolish'd the Grammar School[;] continued Mr Madison President, &Professor ofMathematics[;] Appointed Mr Wyth Professor
of Law, Dr McClurg of Physick[,] Mr Andrews of Moral Philosophy, & Monsr Belini of modern Languages. Each of these Professors have an Annuity of eight Hogsheads of Tobacco. The Students have to ... pay a Hd of Tobacco to each Professor, they shall attend.
At this time, Brown hinted that he would like to attend Wythe's lectures, but he did not know how to quit his apprenticeship with Randolph. With the removal of the government to Richmond, Randolph, as Attorney General, would necessarily have to move to the new capital, and Brown noted that "if I continue with him I shall have to move there also." This he did not want to do, yet he realized that because Randolph was "a Gentl[ema]n of great delicacy perhaps it might be improper to q[u]it him & attend Mr Wyth's Lectures.”107
For many weeks Brown remained unsure of his plans, until Randolph, in late January 1780, recom¬mended that he stay in Williamsburg and attend Wythe's lectures, for the Attorney General saw this choice "as the best opportunity ... for Study [and] Instruction [in law] that this Country affords.,,108 Brown began to study under Wythe almost immediately, and in the middle of February he reported to his uncle: "I apply closely to the Study of Law and find it to be a more difficult Science than I expected, though I hope with Mr Wythes assistance to make some proficiency in it; those who finish this Study in a few months either have strong natural parts or else they know little about it.”109
Brown continued to study under Wythe for most of the year, and in July he reported that "the Advantages of my situation, ... of late have been greatly augmented; for Mr Wythe [,] ever attentive to the improvement of his Pupils, founded two Institutions for that purpose," the Moot Court and the Moot Legislature. As quoted above, Brown went on to describe both institutions, and he then noted, "I take an active part in both these Institutions & hope thereby to rub off that natural Bashfulness which at present is extremely prejudicial to me.”110
Wythe's institutions must have worked their magic, for after his 1782 admission to the bar Brown moved to what is now Kentucky and quickly became one of that region's most noted politicians. He was elected to the Virginia Senate in 1784, and three years later he began service in the Continental Congress. After the adoption of the Constitution, Brown served in the first two sessions of Congress as a Representative from Virginia, and in 1792 when Kentucky received her statehood, he was elected one of the Common¬wealth's first United States Senators, serving until 1805.111
Brown was not the only person in his family to study law under Wythe, for evidence suggests that a brother and two first cousins did likewise, all of whom also became known for their public service. The brother James Brown (1766-1835), eventually settled in New Orleans, and twice represented Louisiana in the U.S. Senate (1813-1817, 1819-1823), as well as serving as Minister to France (1823-1829).112
As for the cousins, the most famous was John Breckinridge (1760-1806), who at age nineteen while a student at William and Mary was elected to the Virginia legislature by the citizens of Botetourt county. In 1792, Breckinridge was elected to Congress from the district surrounding Charlottesville, but shortly thereafter he resigned the seat and settled in Kentucky. There, the young attorney flourished, serving as state Attorney General and speaker of the state House. In 1801 he was elected to the U.S. Senate, serving alongside his cousin John Brown, and four years later he was appointed United States Attorney General by his friend Thomas Jefferson. Breckinridge was serving in this position when he died prematurely at the age of forty-six.113 John's younger brother, James Breckenridge (1763-1833), who served in thirteen sessions of the Virginia legislature in addition to four terms in Congress (1809-1817), has also been listed as a Wythe pupil.114
The Kentuckian who in 1805 replaced John Brown in the U.S. Senate, Buckner Thruston (1764--1845), was also a Wythe student at William and Mary. Thruston resembled his legal mentor, for he was "a scholarly man" who did not care for "the rough-and-tumble of Washington politics." Accordingly, he resigned his Senate seat in 1809 to become judge of the U.S. Circuit Court for the District of Columbia, a position in which he served for thirty-six years until his death.l15
While many Wythe students moved west, especially to Kentucky, a noted politician who studied under Wythe at William and Mary and then stayed in Virginia was William Branch Giles (1762-1830). Giles had earlier graduated from Princeton, and during his career he represented Virginia in the U.S. House
(1790~1798, 1801-1803) and the U.S. Senate (1804-1815), as well as serving as the state's Governor (1827-1830) .116
A Wythe student who possibly could have achieved even more than Giles was Samuel Hardy (c. 1758¬-1785). Like John Breckinridge, Hardy was elected to the General Assembly while still a student in Williamsburg, and in 1783, when about twenty-five, he won election to the Continental Congress. There, Hardy impressed all with whom he came into contact, but unfortunately he died in Philadelphia two years later; despite failing to reach his thirtieth birthday, the General Assembly named a county in Hardy's honor.117
As detailed below, Wythe tutored many students in the classics, and among those who also studied law with the great teacher were William Munford and Jefferson’s nephew Peter Carr.118 Another Wythe law student with a close association to Jefferson was William Short (1758-1849), whom the third President considered his "adopted son.”1l9
Short, who attended Wythe's lectures in 1780 and then studied under Jefferson, recalled: "In point of general knowledge I am sure I may say without vanity that I [was] prepared more than most of the Lawyers who then were practicing at the bar. I had read and made copius notes on Coke [on] Lyttleton. I had done so with Blackstone, of course." In addition, "I had plead causes ... in a simulated court, where our professor presided, & I was considered able and eloquent, &c.”120 Thus, Short "went to the bar ... full of all the general principles & erudite knowledge of the sources of law. The law of nature, the law of the land, viz. England, for all our books were of English law; such things had occupied me.... I was full of myself and of my own superiority.”121
Short, however, soon realized that his "mere theoretical study" under Wythe and Jefferson would, by itself, be "deficient" for a successful law practice, and he later told a nephew that "collegiate courses under celebrated professors are more the luxury of [legal] education than the solid utility of the thing. The success of a lawyer must essentially & intrinsically depend on the course he pursues after he has entered the field of practice. It is then that the real education begins.”122 Short specifically mentioned two areas in which Wythe's instructions did not prepare him for a life at the Virginia bar; Short was not sufficiently acquainted with the acts of the Virginia legislature, and he was not thoroughly grounded in the forms of pleading.
Less than a month after leaving Wythe's classroom, Short was hired by a visiting South Carolinian who was accused of murdering one of his slaves, and the young attorney "was immediately for showing all of my law learning to the court," and began "preparing for a most elaborate & scientific speech." For that purpose, he "sent to a gentleman of the bar in Williamsburgh to lend me certain reports of criminal cases. From his answer I perceived that these reports w[oul]d not bear on the case in question & that it w[oul]d depend entirely on the act of the Virginia Assembly." While attending Wythe's lectures, Short "had never read or condescended to think of the acts of the assembly of Virginia," and the "information as to [the dispositiveness of] the act of the Assembly operated on me as the moves of his legs does on the Peacock when he is strutting. It showed me my own ignorance & real unfitness for the defence of my client.,,123
Shortly thereafter, Short, who intended to confine his practice to the highest courts in the state, had the only occasion in his career to appear before a county court, and in one particular he was quite unprepared. He later explained: "Scientific students [of the law] are apt to despise the mere technical & practical part of the business--that is the process or forms of pleading.... I had read the best reporters, but I was miserably ignorant of the mere technical forms. These were known to the clerks of court, & to every pettifogger, & I despised them." Thus, when Short, in the process of defending his county court client, was asked what plea he was entering, he was at a complete loss: "Had I been asked a most obstruse metaphysical question I w[oul]d not have been more completely put at a non plus . ... Now this plea any underclerk w[oul]d have known, & I who had followed courses, &c, &c, did not know. I had never the less read the books of practice & thought I understood the subject." Thus, Short's "experience convinced me that this technical & practical part [of the law] is to be learned only in an attorney's office. My advice therefore always would be to everyone to pass one year in this way previous to the commencement of the practice.”124
It is interesting to note, however, that in Short's career he likely benefitted a great deal more from
Wythe's "theoretical" learning than he would have from the knowledge gained by apprenticing in an attorney’s office. Shortly after beginning his practice, Short became Jefferson's private secretary in Paris, and he later was a noted diplomat himself.
Jefferson was not the only important revolutionary leader to send those close to him to study law under Wythe, for another was Richard Henry Lee. In April 1780, while Lee's son Ludwell Lee (1760-1836) was in Europe attending his diplomat uncle Arthur Lee, Richard Henry wrote his brother: "Our worthy & learned friend, Geo. Wythe esquire is now Professor of Law in Wm & Mary College—his lectures are greatly admired; and it deserves your attention whether your nephew Ludwell would not be greatly benefitted by attending his lectures whilst he is reading the laws of Virginia ... his father thinks so....”125 Arthur and Ludwell were scheduled to return to America, and four months after his first letter Richard Henry wrote Arthur to the same effect: "I think [Ludwell] may benefit himself by repairing to Williamsburg and finishing his law studies under Mr. Wythe, who is now most worthily employed in the character of Law professor at Willi[a]m & Mary College." Lee then added that Wythe "discharges the duty of [his professorship] with wonderful ability both as to the theory and practise. The sooner therefore that Ludwell gets under his tuition the better!”126 Following his father's advice, Ludwell Lee began his studies at Williamsburg soon thereafter, and after the Revolution he returned to Williamsburg to complete his legal education.127
One of Lee's classmates during his later sojourn at the college was his first cousin, Thomas Lee Shippen (1765-1798), of Philadelphia. Shippen, the son of Dr. William Shippen, Professor of Anatomy at the University of Pennsylvania, studied with Wythe from 1784 to 1786, and he spent an additional two years at the Inner Temple. Despite displaying great talent and having arguably the best legal education of anyone in America, Shippen never aimed for, or achieved, greatness.128
Shippen was not the only Wythe student to come from out of state. Noted South Carolina patriot Ralph Izard, for instance, sent his eldest son Henry (b.1771) to be educated byWythe,129 and a North Carolinian who ventured north was Kemp Plummer (1769-1826), later a member of the "Warren Junto" which controlled North Carolina politics for several decades.130 The great majority of Wythe's students, however, appear to have been Virginians.
Another son of the Virginia aristocracy who attended Wythe's lectures was Richard Randolph (1770¬1796), the eldest brother of John Randolph of Roanoke and step-son of Wythe's pupil and successor St. George Tucker. Besides his familial connections, Randolph is most famous for being falsely accused of adultery and infanticide. Through the efforts of Patrick Henry and John Marshall, Randolph was acquitted on murder charges, yet he died shortly thereafter at the age of twenty-six. In his will, Randolph named as his executors his stepfather, two brothers, and "the most virtuous and incorruptible of mankind, and next to my father-in-law my greatest benefactor, George Wythe, Chancellor of Virginia, the brightest ornament of human nature.”131
Another noted father whose sons may have attended Wythe's lectures was Robert Carter Nicholas, Wythe's colleague on the High Court of Chancery. Although their attendance is questionable, several sources list Wythe's students as including George Nicholas (c. 1754-1799), a noted Virginia attorney,132 and his younger brother Wilson Cary Nicholas (1761-1820), a Virginia Governor who also represented the state in both houses of the federal legislature.
Other men alleged to have been Wythe pupils include: Archibald Stuart (1757-1832), a legislative leader who later served on the General Court for three decades;134 noted Richmond attorney John Wickham (1763-1839);135 William Cabell, Jr.;136 John Minor III (1761-1816), a Fredericksburg attorney and member of the Virginia General Assembly;137 Jacob Walker, a distant relative of Wythe's whom the teacher thought showed "great promise”;138 and Daniel Call (c. 1765-1840), John Marshall's brother-in-law and a long-time Reporter of the Virginia Court of Appeals.139
One person has estimated that Wythe instructed fewer than 200 pupils in the law, 140 yet it is amazing what these students accomplished in later life. Students taught by George Wythe occupied almost every office this young nation had to offer, including President, Vice President, Secretary of State, Attorney General, U.S. Senator, Speaker of the U.S. House, Chief Justice, Associate Justice, federal District Judge, foreign Minister, Governor of Virginia, President of the Virginia Court of Appeals, member of the Virginia, Kentucky, and North Carolina legislatures, President of William and Mary, Professor of Law at both William
and Mary and Transylvania, and Episcopal Bishop of Virginia.141 While some of the men who occupied such stations were taught by Wythe in a private capacity, it is also true that "no law school in America has since sent from its class rooms into public life, in the same length of time, if at all, an equal number of men of such amazing ability.”142
Wythe felt exceptionally close to "his boys," and it has been said that "[a]ll of his students entertained for him a veneration that was almost a religion.”143 There is little doubt that Paul Carrington is correct when he states that "Wythe's teaching career may be assessed ... as consequential beyond comparison to that of any successor in American university law teaching."I44
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It has been said that one special advantage Wythe had as an instructor was that he "remained an active participant in both judicial and governmental activities and, as such, could bring much more vitality to his classroom.”145 During his tenure at William and Mary, Wythe travelled to Richmond during the months of April and September to hear cases on the High Court of Chancery as well as the Court of Appeals.
Wythe’s most notable case, Commonwealth v. Caton, occurred on the latter court in 1782, when he, in dicta, became one of the first American jurists to espouse the doctrine of judicial review, stating: if the whole legislature ... should attempt to overleap the bounds prescribed to them by the people, I, in administering the public justice of the country, will meet the united powers at my seat in this tribunal, and, pointing to the constitution, will say to them, "here is the limit of your authority; and hither shall you go, but no further.”146 In another important case, Wythe defied public opinion when he became the first judge after the Revolution to hold that Virginians had to pay the previous debts they owed to British merchants.147
On several occasions in the 1780s Wythe was also pressed into other forms of government service. Having done nothing to enact the laws earlier drafted by the revisers, in 1783 the Virginia General Assembly decided that the state needed a new collection of its laws, and for this task it appointed the Commonwealth's three Chancellors, Wythe, Pendleton, and John Blair II. These men completed the work the following year, and ever since it has been known, incorrectly, as the "Chancellors' Revisal.”148
In 1785, it was the national government that sought Wythe's service, for the Continental Congress named him to a jury of national leaders, including Jefferson, Monroe, John Rutledge, and William Patterson, to negotiate a settlement between New York and Massachusetts over the ownership of a vast tract of land in what is now western New York State. Not finding himself able to leave Williamsburg, Wythe refused this appointment.149
The one appointment he was unable to refuse, however, was to the Constitutional Convention in 1787. One authority has stated that Wythe's eminence as a judge and his long legal and parliamentary experience made him an almost inevitable choice as a delegate to the Philadelphia convention of 1787.”150 In October 1786, the Virginia General Assembly chose seven delegates for the Philadelphia convention: Wythe, George Washington, James Madison, George Mason, John Blair, Edmund Randolph, and Patrick Henry-who declined to serve and was replaced by Wythe's former colleague on the William and Mary faculty, Dr. James McClurg.
In Philadelphia, Wythe's greatest service was as chairman of the rules committee,151 and as in the Continental Congress, he was highly respected for his knowledge of both the law and classical literature. Delegate William Lee Pierce wrote that "Mr. Wythe is the famous Professor of Law at the University of William and Mary. He is confessedly one of the most learned legal characters of the present age." Pierce continued his description by noting that the Virginian had "acquired a compleat knowledge of the dead languages and all the sciences" and"[n]o man, it is said, understands the history of government better than Mr. Wythe." About the only thing Pierce could write against Wythe was that "from his too favorable opinion of men, he is no great politician.”152
Wythe had been extremely reluctant to leave Virginia because of the health of his wife, who was gravely ill back in Williamsburg, and after only three weeks in Philadelphia he sought and was given permission to return home. Wythe found his wife's situation so serious that he formally resigned from the Convention
on June 16, 1787, and two months later, on August 18, Elizabeth Taliaferro Wythe succumbed to her illness.153
Wythe's service in establishing a national constitution was not complete, however, for the following year he was elected to Virginia's ratifying convention. Wythe's selection by his fellow citizens came as a complete surprise, and a student remembered that upon being informed, "tears flowed down [Wythe's] cheeks in copious streams.”154
The convention was held in Richmond during June 1788, and Wythe was called to the chair when the delegates went into the committee of the whole; the site of Wythe presiding over a legislative assembly must have seemed quite familiar to the not insubstantial number of delegates who had been his students at William and Mary. The "Father of the Constitution," James Madison, later listed Wythe, Pendleton, Blair, Innes, and Marshall as the five most important delegates, and Wythe was chosen to present the resolution calling for ratification.155
The following year, in recognition of his over-forty years of service to the Commonwealth, the Virginia General Assembly, on December 1, 1789, named a county in Wythe's honor. It is also interesting to note that at least five Virginia counties (all of them now in West Virginia) were named for Wythe's students: Jefferson, Hardy, Marshall, Roane, and Clay.156
As if his judicial and teaching duties were not enough to keep him busy, during the 1780s Wythe also began instructing young men in the classics. As noted above, William and Mary's grammar school had been closed in 1779, and at that time the college also stopped teaching the ancient languages. At some point an independent grammar school was formed in Williamsburg, yet its most notable master, Walker Maury, quit the school in 1786 when he moved to Norfolk.157 Thus, Wythe likely saw it as a public duty to instruct intelligent youth in the classics, and it is noteworthy that he would not accept any payment for this service.158 Of course in addition to his great sense of public duty, Wythe probably began instructing young men in the classics simply because teaching gave him great enjoyment. The Reverend Maury once told Jefferson that "Mr. Wythe ... seems to enjoy himself no where, so much as with his pupils.”159
During this period, Wythe's first classics pupil was Littleton Waller Tazewell (1774-1860), the precocious grandson of one of Wythe's best friends. Tazewell, who at age twelve was the youngest boy Wythe ever taught,160 began studying Greek, Latin, Arithmetic, and other subjects under Wythe in 1786. Tazewell later recalled: I attended him every morning very early, and always found him waiting for me in his study by sunrise. When I entered the room, he immediately took from his well-stored library some Greek book, to which any accidental circumstance first directed his attention. This was opened at random, and I was bid to recite the first passage that caught his eye. Although utterly unprepared for such a task, I was never permitted to have the assistance of a Lexicon to a grammar but whenever I was at a loss, he gave me the meaning of the word or structure of the sentence which had puzzled me. . . . Whenever in the course of our reading any reference was made to the ancient manners, customs, laws, superstitions or history of the Greeks, he asked me to explain the allusion, and when I failed to do so satisfactorily (as was often the case) he immediately gave full clear and complete account of the subject to which reference was so made. Having done so, I was bidden to remind him of it the next day, in order that we might then learn from some better source, whether his explanation was correct or not; and the difficulties I met with on one day, generally produced the subject of the lesson of the next.161
In this way, Wythe tutored Tazewell in Greek from sunrise until breakfast, and the same method was employed from noon until two p.m. to teach the young pupil Latin. From four in the afternoon until dark, Wythe and Tazewell studied mathematics using French texts, and in the evenings Wythe had his young pupil read to him from both major works of English literature and current periodicals.162
Tazewell studied under Wythe for approximately five years, during most of which time he lived in the Wythe home. The young prodigy later compiled an impressive record at William and Mary and then read law under John Wickham. Becoming one of the nation's foremost attorney-statesmen, Tazewell served in
both houses of the federal legislature (House, 1800-1801; Senate, 1824-1832) and as Governor of Virginia (1834-1836). He was likely the last-surviving student of George Wythe when he died in 1860 at the age of eighty-six.163
Another Wythe pupil for most of this period was Peter Carr (1770-1815), Thomas Jefferson's nephew. Jefferson sent his kinsman to be educated in Williamsburg, and after attending Maury's grammar school Carr enrolled in William and Mary in the fall of 1786, taking classes in natural and moral philosophy, mathematics, and modern languages (French and Spanish). Carr, however, also "enjoy[ed] the advantage of Mr. Wythe's valuable patronage and instructions," for at this time the law professor began privately tutoring Jefferson's nephew in Latin and Greek, with Carr reading, among other authors, Herodotus, Sophocles, Cicero, Horace, and Lucretius.164 Jefferson was highly pleased that his nephew was studying under Wythe, telling the young man, "I am sure you will find this to have been one of the most fortunate events of your life, as I have ever been sensible it was ofmine.”165
In early 1788 Carr also began the study of law under Wythe. As for his routine at this time, he wrote his uncle, then in Paris, that he was following Wythe's suggestion of "reading [law] two or three hours every day, and devoting the rest of my time to languages, history and Philosophy." More specifically, the young student would "rise about day, and take a walk of half an hour to shake off sleep, read law till breakfast, then attend Mr. Wythe till 12 oclock in the languages, read philosophy till dinner, history till night and poetry till bedtime.”166 Jefferson thoroughly approved of this education, telling his nephew, "I like well the distribution of your time mentioned in your letter ... and the counsels of Mr. Wythe so kindly extended to you, leave it necessary for me to add nothing of that kind.”167
The following year Carr told his uncle, "Your sentiments with regard to Mr. Wythe, and the attention which ought to be paid to his precepts perfectly coincide with mine." Showing a streak of independent thinking, however, Carr questioned the emphasis his tutor put on the classics, stating: 'The mode of education which he pursues, and to which he is so much attached, is in a measure fallen into disuse, and for my own part I think not entirely without reason." Carr then asked, "Might not a great part of that time which he bestows on the dead languages, be better employed on the modern languages, natural history, and the Mathematics?”168
As noted above, Elizabeth Wythe died in August 1787, and likely fearing the loneliness that might overtake him, Wythe determined to open a grammar school at his house, which would include the boarding of the students. Wythe was making plans for this even before his wife died, for he placed an advertisement for the school in the Virginia Gazette on August 2, 1787: I purpose in October, when the next course of lectures in law and police will commence, to open a school for reading some of the higher Latin and Greek classics and the approved English poets and prose writers, and also for exercises in Arithmatic. George Wythe169 Unfortunately, the boarding of a number of boisterous youths did not work out, for as was remembered by Tazewell, Wythe found the plan "much more trouble than he could sustain." The teacher "was irritated and vexed by a thousand little occurrences he had never forseen," and the "necessary domestic duties occupied ... much of his time, broke in upon his pursuits, and interrupted even his business and his amusements." Thus, while continuing to give board to Tazewell, Wythe found suitable lodgings for the other students and began teaching them as day students.170
As previously mentioned, all of Wythe's students benefitted not only from his academic instructions, but also from their teacher's profound sense of morality. Peter Carr told his uncle that Wythe "adds advice and lessons of morality, which are not only pleasing and instructive now, but will be (I hope) of real utility in the future.”171 Along these lines, one of Wythe's special interests was the abolition of slavery, and it is interesting to note that his great-grandfather Keith had been the first Quaker to take a stand for emancipation.172
In 1785, noted British abolitionist Dr. Richard Price asked Thomas Jefferson about Virginia's sentiments on slavery, and this caused Jefferson to think of Wythe. The then Minister to France responded: 'The
college of William and Mary in Williamsburg, since the remodeling of it's plan, is the place where are collected together all the young men of Virginia under preparation for public life." He then continued, They are there under the direction (most of them) of a Mr. Wythe one of the most virtuous of characters, and whose sentiments on the subject of slavery are unequivocal." Jefferson then suggested to Price how he might be able to affect sentiment on the issue: "1 am satisfied [that] if you could resolve to address an exhortation to those young men, with all that eloquence of which you are master, that its influence on the future decision of this important question would be great, perhaps decisive.”173
While a one-time owner of at least seventeen slaves himself, over the last two decades of his life Wythe managed to divest himself of this burden. Wythe's views on slavery obviously had an effect on many of his students, one example being John Minor III, who, not too many years after he left Wythe's classroom, introduced a bill in the Virginia General Assembly which would have led to a gradual emancipation of the Commonwealth's slaves.I74 In addition, former student Richard Randolph in his will freed all of his slaves and left provisions so that they might be set up as landed farmers. Randolph named Wythe as one of his executors, but, unfortunately, this experiment never proved successful.175
* * * * *
Despite the great success of Wythe's law program throughout the 1780s, at the end of the decade he voluntarily relinquished his professorship, never again to teach in an institutional setting. Several events likely combined to force this situation, including the death of his wife, a reorganization of Virginia's court system, and a religious controversy at William and Mary.
As noted above, Elizabeth Wythe died in August 1787, and Wythe thereafter almost completely withdrew from society. Nathaniel Beverly Tucker, son of Wythe's early pupil St. George Tucker and himself the Chair of Law and Police at William and Mary in later years, recalled that during Wythe's last years in Williamsburg, "a morbid sadness came over him, which disqualified him for social enjoyment”; the great teacher was "silent and grave; his whole air and manner betokening a gentle sadness.”176 Others, too, recalled Wythe's reluctance to engage in conversation; Wythe "sometimes politely bowed in persons calling on business, attended to it and then politely bowed them out of the house, without speaking a word," and when he visited a neighborhood bakery early each morning to buy his bread, he would "put down his money and t[ake] his loaf without uttering a word.”177 At this time the only person Wythe visited was a relative, Mrs. Taliaferro,178 and he "became more and more immersed in a life of books," with his writings and conversations becoming "ever more pedantic and obscure.”179
Shortly after his wife's death, another major change occurred in Wythe's life when, in 1788, the Virginia General Assembly reorganized the state's court system. The legislature made the Court of Appeals a separate, five-judge, court, and two of the five judges chosen for the new court were Wythe's colleagues on the chancery court, Pendleton and Blair. In addition, the legislature reduced the number of judges on the High Court of Chancery to one, with Wythe being the only member.
Serving as the Commonwealth's sole chancellor very much appealed to Wythe, for the following year Edmund Randolph informed President Washington that far from desiring a federal judgeship, Wythe "sits in a kind of legal monarchy, which to him is the highest possible gratification.”180 One downside, however, was that Wythe's decisions could now be reviewed by the new Court of Appeals, including its Chief Justice Pendleton, a situation which would cause friction in the coming years.l8l For Wythe, the reorganization also meant that he would now have to travel to Richmond four times a year to hold court, and this likely caused him to rethink his commitment to teaching at William and Mary; Peter Carr wrote in May 1789 that Wythe's "public avocations have lately taken up much of his time[,] so that my attendance on him has not been such as I could have wished.”182 The court reorganization has traditionally been assigned as the one reason why Wythe stopped teaching and removed to Richmond, and while it was certainly a major factor, Wythe was also led to this decision by a controversy then brewing at William and Mary.
Over the course of the 1780s, "the new impetus given to the College by Jefferson's reforms slowly yielded to the weight of resistance, tradition, and habit ... [and] the conservatives and the Church slowly fought their way back into control of the institution.”183 The leader of the conservative forces was John Bracken, rector of Bruton Parish in Williamsburg since 1773, and master of the college's grammar school and professor of humanity from 1777 until the 1779 reorganization. In 1787, Bracken sued the College to
regain his former position, arguing that the 1779 reorganization was illegal, and one historian who has studied the matter says that the, plaintiff's plea was "a religious protest against the secularism which the Jeffersonian reform had introduced." In court, Wythe's former student John Marshall represented the college and was able to defeat Bracken's suit, yet the college determined to reinstate the Reverend as a professor, and he later served as President of William and Mary for two years after Madison's death in 1812.184
The situation involving Bracken must have upset Wythe greatly, for on September 14, 1789, Jefferson informed William Short:
Mr. Wythe has abandoned the college of Wm. & Mary, disgusted with some of the conduct of the professors, and particularly of the ex-professor Bracken, and perhaps too with himself for having suffered himself to be too much irritated with that. The visitors will try to condemn what gave him offence and press him to return; otherwise it is over with the college.... Hampden Sidney ... too, ... is going to nothing, owing to the religious phrensy they have inspired into the boys young and old, which their parents have no taste for.185
The William and Mary Board of Visitors was unable to change Wythe's mind, so the law professor's resignation was reluctantly accepted; at the same time the school conferred on Wythe an honorary Doctor of Laws degree.186 The changes at William and Mary upset Jefferson greatly, for when recommending a college for his nephew in 1790, Jefferson told a brother-in-law, "I know there is nobody left at [William and Mary] to render his return there an object"; instead, Jefferson suggested Princeton or, possibly, the University of Pennsylvania.187 Disheartened that his plans for his alma mater had gone awry, Jefferson in his retirement founded the University of Virginia.
As for what occurred at William and Mary after Wythe's resignation, in March 1790 the Visitors named Wythe's former pupil St. George Tucker as his replacement in the chair of law and police. Tucker, who would serve in this position until his own disagreement with the faculty in 1804, continued to assign readings and deliver lectures, the latter of which he later incorporated into the first American edition of Blackstone's Commentaries. Tucker, however, unlike Wythe, did not come from a legislative background, and although he regularly lectured on the state and national constitutions, he abandoned the idea of teaching practical politics through a moot legislature.188 Tucker student Joseph C. Cabell in 1801 wrote a friend that You may remember that a notion formerly prevailed here that a student of law should make the study of his profession subservient to that of politics. This opinion however seems not to prevail here" under Tucker.189
Beyond Jefferson's letter to Short, the best evidence that Wythe's decision to quit William and Mary was not based solely on the reorganization of the Virginia court system is that he did not immediately move to Richmond; but, rather, waited two-and-a-half years after the court reorganization, and two years after Jefferson noted that Wythe was resigning from his professorship. During this transitional period, the Chancellor, in a private capacity, continued to instruct a number of young men in the law and classics, including Tazewell, Carr, John Coalter, William Munford, and John Wayles Eppes.
John Coalter (1771-1838), who later served for many years on the Virginia Court of Appeals, began the study of law under Wythe in the fall of 1789, at which time he told his father: I have just begun to attend Mr. Wythe on Law to which I shall do with pleasure and alacrity. The exalted character and tried abilities of that Gentleman promise the apt & diligent Student a certain noble source of instruction; and his attentions and willingness to inform flatters me that even my improvement is not to be doubted.190 Coalter's friend William Munford (1775-1825) also studied the law and classics with Wythe, and he told Coalter in June 1790, "My great resource is Mr. Wythe." Munford thought that he might be asked to live with Wythe, and he noted that "If so, your friend ['s] fortune is made. Nothing could advance me faster in the world than the reputation of having been educated by Mr. Wythe, for such a man as he casts a light
upon all around him.”191 Munford was correct in his prediction about living arrangements, for in April 1791 he was writing Coalter that "thro' the surprising friendship and generosity of Mr. Wythe, I live in his house, and board at his table, at the same time enjoying the benefit of his instructions without paying a farthing. My esteem for this man, together with my love, increase every day.”192
Next to Jefferson, it is likely that Munford was the student who had the closest relationship with Wythe, and he shared his teacher's love of both the law and classical literature. Munford later served in the General Assembly and as Reporter of the Virginia Court of Appeals, yet he is best known for his magnificent translation of the Iliad. 193
One of the "old" students, Peter Carr, left Wythe’s tutelage in late 1789 or early 1790,194 although at this time Jefferson sent another of his nephews, John Wayles Eppes (1773-1823), to study under Wythe. In December 1789,Jefferson wrote Wythe that Eppes' father desired that his son quit William and Mary and instead attend Wythe, studying mathematics, natural philosophy, and history before learning the law.195 It is assumed that Wythe agreed to such,196 although ten months later Eppes was no longer in Williamsburg.197 Thereafter, Eppes followed Jefferson to Philadelphia, where he studied law under his uncle's direction, and still later he married Jefferson's daughter Maria and was a strong supporter of his father-in-law's party while serving five terms in Congress (1803-1811, 1813-1815) and two years in the U.S. Senate (1817¬-1819).198
* * * * *
George Wythe finally moved to Richmond in September 1791, where he would live the final fifteen years of his life. As he aged, Wythe became a figure of veneration and awe, and his erudition caused persons to refer to him as "the learned" or "the famous" judge.
This erudition was in full view in Wythe's written opinions on the court of chancery, and one historian has stated that "his learning was so extensive and so lavishly spread upon the pages of his opinions that these opinions appear somewhat pedantic and cumbersome.”199 For example: In the eight pages of one opinion with its footnotes, Bracton and Justinian, Juvenal's Satires, and Quintilian, Euclid, Archimedes and Hiero, hydrostatic experiments and Coke on Littleton, Tristam Shandy and Petronius, Halley and Price and Prometheus, Don Quixote and Swift's Tale of a Tub, Locke's Essay on Human Understanding, and Turkish travellers, chase one another up and down to the bewilderment of all but the universal scholar.200 Wythe was obviously intensely proud of the effort he put into his opinions, and in his later years one of the major vexations in his life was that there was a higher court, led by his chief nemesis Edmund Pendleton, which could review, and reverse, his decisions. In the fourteen years between the formation of the separate Court of Appeals and the 1803 death of Pendleton, over 150 of Wythe's cases were appealed to the higher court, and of these, more than half were reversed or in some way modified by Pendleton. This enraged Wythe, who in 1795 "took the unprecedented step of writing a volume of reports on chancery cases reviewed by the Court of Appeals in which he attacked his superior judge at times with bitter sarcasm.”201 Pendleton was initially inclined to respond in like manner, but the elderly judge was finally convinced that this would serve no purpose.
Wythe served as the Commonwealth's sole Chancellor until 1802, when his judicial lode was somewhat lightened by the General Assembly. The legislature divided the state into three Chancery districts, each with its own chancellor, with sessions to be held in Williamsburg, Richmond, and Staunton. Wythe was given the Richmond district.202
Besides his judicial position, other forms of public service continued to attract Wythe during his Richmond years. In 1795, the Chancellor was named chairman of a committee appointed by the General Assembly to compile and publish the state's laws on lands, tenements, and hereditaments. What is most interesting about this committee is that it appears probable that all of the other members were former Wythe students: John Marshall, John Wickham, John Brown, and Bushrod Washington.203 In addition, Wythe presided over two meetings of Virginia's electoral college, in 1800 and 1804, both of which cast its votes for Wythe's most famous student, Thomas Jefferson.
As he had throughout his life, Wythe continued his own education while in Richmond, for he engaged the local spiritual leader of the Richmond Jewish community to teach him Hebrew.204 This was his seventh language, for he already could read English, French, Italian, Spanish, Latin, and Greek.
As would be expected, Wythe also continued his teaching of young men, in both the law and classics. Although Littleton W. Tazewell stayed in Williamsburg to complete his studies at William and Mary, Wythe had William Munford move with him to Richmond, and this student later remembered that "for three years, at all spare moments, he devoted himself without reward to my instruction, giving me the best and most excellent advice, and imparting knowledge which I never could have acquired otherwise.”205 Munford was one of Wythe's last law students, and he distinctly recalled his teacher's instructions on learning the subject: "Don't skim it; read deeply, and ponder what you read; they begin to make lawyers now without the viginti annorum lucubrationes of Lord Coke; they are mere skimmers of law and know little else.”206
At this time, one of Wythe's students in the classics was John Thomson (1777-1799), who "would have been one of the ablest of Virginia's scholars and lawyers" had he not died very young.207 The most notable Wythe student during his Richmond years, however, and next to Jefferson and Marshall the most famous person Wythe ever taught, was Henry Clay.
Clay (1777-1852) was a sixteen-year-old clerk in the chancery office when, in 1793, he was asked by Wythe to serve as his amanuensis. For nearly four years, Clay painstakingly wrote out Wythe's judicial opinions and private correspondence, and in return Wythe instructed Clay in history, law, and the classics. Wythe had his young pupil read “Harris’s Homer, Tooke’s Diversions of Purley, Bishop Lowth’s Grammar, Plutarch’s Lives, and [other] books of law and of history," including Coke on Littleton.
Clay's foremost biographer, Robert V. Remini, has stated that "the chancellor's society and assistance became an extended seminar in the law, the classics, literature, history, and social refinement and grace." He continues, 'Wythe took a bright, eager, talented, attentive, promising, and courteous sixteen-year-old student, and by the time Clay reached the age of twenty-one, the chancellor had molded him into an educated, cultivated, urbane, and articulate gentleman, with considerable knowledge of the law.”208
Wythe saw that Clay finished his legal education by studying for a year under the Commonwealth's Attorney General, Robert Brooke, and after passing the bar the young man settled in Kentucky. Clay, of course, went on to become the most notable American politician never elected to the Presidency, serving, over his fifty-year public career, as Speaker of the U.S. House, Secretary of State, and "dictator" in the U.S. Senate. One source has stated that "[t]hroughout his long life, Clay's position on public issues reflected the teachings of Wythe," and Clay gave his first-born son the middle name of Wythe.209
George Wythe's beliefs in liberty and the importance of education also led him to teach his black servants to read and write, 210 the most noted of whom was Michael Brown, a young mulatto who was freed by Wythe. The Chancellor also taught Latin and Greek to Brown, and in his will Wythe both left a legacy for Brown and asked President Jefferson to continue the young man's education.
It was partially because of this legacy to the servant that both Wythe and Brown were murdered by Wythe's grandnephew, George Wythe Sweeney; a dissipated, spendthrift young man, Sweeney was the residual legatee of Wythe's will. Long the beneficiary of Wythe's generosity, in 1806 the ungrateful Sweeney began to steal from his great-uncle, including the forging of at least six checks. These crimes were discovered, yet before Sweeney could be charged, he placed arsenic in the food or drink of the Wythe household. Brown died shortly thereafter, but Wythe lingered in agony for two weeks, during which he disinherited Sweeney. Unfortunately, on June 8, 1806, the poison finally led to the venerable Chancellor's death.211
Because of his nearly sixty years of service to the Commonwealth, as well as the manner of his death, the public was greatly grieved by Wythe's passing; one historian has determined that "more column inches of eulogy [were devoted to Wythe] than had been elicited in Virginia newspapers by the death of George Washington or by that of any other person.”212 The Richmond Enquirer, for instance, opined that "Kings may require mausoleums to consecrate their memory; saints may claim the privileges of canonization; but the venerable GEORGE WYTHE needs no other monument than the services rendered to his country, and the universal sorrow which that country sheds over his grave.”213 There could be no more fitting eulogy for Wythe, however, than the realization that upon his death in
1806, the nation's President (Jefferson), its Chief Justice (Marshall), an Associate Justice (Washington), the Attorney General (Breckinridge), U.S. Senators from Virginia (Giles) and Kentucky (Thruston), and the most influential state judge in America (Roane) all were former students of George Wythe.
- Thomas Hunter, "The Teaching of George Wythe," in The History of Legal Education in the United States: Commentaries and Primary Sources, ed. Steve Sheppard (Pasadena, CA: Salem Press, 1999), 1:138-168.
- Thomas Jefferson to William DuVal, June 14,1806, quoted in Dice Robins Anderson, "The Teacher of Jefferson and Marshall," 15 South Atlantic Qtly. 327, 343 (1911). While mispronounced by some, in Virginia the name "Wythe" rhymes with "Smith"; according to one commentator, it is "[p]ronounced 'With' by the cognoscenti for the same reason that they pronounce Coke as 'Cooke'; the linguistic explanation in these cases is perhaps more persuasive than any that might be found for the Virginia practice of pronouncing Talliaferro as 'Tolliver.'" William F. Swindler, "America's First Law Schools: Significance or Chauvinism?," 41 Conn. B.J. 1, 2 n.4 (1967).
- Henry Clay to Benjamin B. Minor, May 3, 1851, in The Papers of Henry Clay, ed. Robert Seager II et al. (11 vols., 1959-1992), X, 888-89.
- The four book-length biographies of Wythe are William Clarkin, Serene Paldot: A Life of George Wythe (1970); Joyce Blackburn, George Wythe of Williamsburg (1975); Alonzo Thomas Dill, George Wythe, Teacher of Liberty (1979); Imogene E. Brown, American Aristides: A Biography of George Wythe (1981). Of these, Dill's is by far the best, although it is quite short. Clarkin and Brown include much interesting material, but their works also contain a number of errors and, worst of all, they fail to give citations to much of their information. The best source on Wythe's life up to 1776 remains W. Edwin Hemphill, "George Wythe, the Colonial Briton: A Biographical Study of the Pre-Revolutionary Era in Virginia" (unpublished doctoral dissertation, University of Virginia, 1937). A published dissertation, Robert B. Kirtland, George Wythe: Lawyer; Revolutionary, Judge (1986), contains some useful information. Articles or published speeches on Wythe include Lyon Gardiner Tyler, "George Wythe," in Great American Lawyers, ed. William Draper Lewis (1907), I, 51-90; Oscar L. Shewmake, The Honorable George Wythe: Teacher; Lawyer; Jurist, Statesman (1950); "George Wythe," Dictionary of American Biography, eds. Allen Johnson, Dumas Malone, et al. (1929-1936), XX, 586-89 (hereinafter referred to as DAB); E. Lee Shepard, "George Wythe," in W. Hamilton Bryson, Legal Education in Virginia, 1779-1979: A Biographical Approach, 748-55; Hugh Blair Grigsby, The Virginia Convention of 1776 (1855), 119-30; John Sherman, "George Wythe, the Neglected Patriot: A Bibliography," 34 Bull. Biblio. & Mag. Notes 185 (1977). An excellent source on Wythe's death is The Murder of George Wythe: Two Essays (1955). On Wythe's teaching, see also Anderson, Teacher of Jefferson and Marshall," supra note 1; W. Edwin Hemphill, "George Wythe, America's First Law Professor and Teacher of Jefferson, Marshall, and Clay" (unpublished master's thesis, Emory University, 1933); Paul D. Carrington, "The Revolutionary Idea of University Legal Education," 31 Wm. & Mary L. Rev. 527 (1990); Swindler, "America's First Law Schools," supra note 1; Robert M. Hughes, 'William and Mary, the First American Law School," 2 Will. & Mary Qtly., 2d ser., 40 (1922); Fred D. Devitt, Jr., "Note: William and Mary, America's First Law School," 2 Will. & Mary L. Rev. 424 (1960). Oscar Shewmake states that a biography of George Wythe "is not an assignment for a potboiler, ghost-writer or rapid-fire biographer of eminent men ... nor can it be done by some immature doctor of philosophy, suddenly 'come from the nowhere into the here,' who knows only what he had read." Instead, Shewmake writes that the biographer has to be "a Virginian whose ancestors had some part, however small, in the stirring events of the times in which [Wythe] lived." In addition, "he will be one who has himself labored in the several fields in which Wythe wrought so well. He will have been a teacher ... of the type exemplified by Wythe. He will of necessity be a lawyer and, preferably, a member of the judiciary ... [and] will have had experience in legislative work. ... Finally, he will be a man of scholarly attainments witl1 an understanding heart, in short, a gentleman." Shewmake, Honorable George Wythe, at 23-24. It is almost impossible that anyone today could meet all of these qualifications; the late U.S. senator and dean of the William and Mary Law School William B. Spong seems to have satisfied all of the requirements except that he never served on the judiciary. Of course Shewmake's comments are in some respects silly, for in noting the two foremost Virginia biographers of this century, Dumas Malone was neither a lawyer nor a politician (unlike Jefferson), and Douglas Southall Freeman was not a soldier (unlike Robert E. Lee and George Washington).
- Unless otherwise noted, all information in this subsection, which briefly recounts Wythe's life from 1726 until 1779, comes from Dill, Wythe, Teacher of Liberty, supra note 3, at 3-41.
- Id. at 4.
- Tyler, "George Wythe," supra note 3, at 52; Dill, Wythe, Teacher of Liberty, supra note 3, at 5.
- One source, Shewmake, Honorable George Wythe, supra note 3, at 8, states that Wythe entered William and Mary in 1740 at age fourteen, yet he does not cite to any evidence proving this assertion.
- Daniel Call, quoted in Dill, Wythe, Teacher of Liberty, supra note 3, at 9.
- Id. at 9 (emphasis in original).
- Shewmake, Honorable George Wythe, supra note 3, at 10; Clarkin, Serene Patriot, supra note 3, in the Forward.
- Dill, Wythe, Teacher of Liberty, supra note 3, at 19.
- Thomas Jefferson, "Notes for the Biography of George Wythe," enclosed in Jefferson to John Saunderson, August 31, 1820, in The Writings of Thomas Jefferson, ed. Andrew A. Lipscomb (1903), I, 167.
- Thomas Jefferson to Ralph Izard, July 17,1788, in The Papers of Thomas Jefferson, ed. Julian P. Boyd et al. (27 vols. to date, 1950-1997), XIII, 372.
- Jefferson, "Notes of Wythe," supra note 12, at I, 167-68.
- Tyler, "George Wythe," supra note 3, at 59.
- Quoted in Dill, Wythe, Teacher of Liberty, supra note 3, at 30.
- For the text of, and commentary about, the proposed laws coming out of the revisal, see the Jefferson Papers, supra note 13, at II, 303-665.
- Quoted in Anderson, "Teacher of Jefferson and Marshall," supra note 1, at 334-35. According to Tucker, Without ambition, without avarice, taking no pleasure in society, [Wythe] was by nature and habit addicted to solitude, and his active mind found its only enjoyment in profound research. "Wythe devoted himself to "[t]he language of antiquity, the exact sciences, and the law," and "he became a profound lawyer for the same reason than he was a profound Greek scholar, astronomer and mathematician." Id.
- William Clarkin, Serene Patriot, supra note 3, at 142, states that Jefferson was Wythe's first pupil, while W. Edwin Hemphill believes that Wythe's first educational service may have come several years earlier, in 1757-58, when he served as guardian of a Lockey Collins, who was a student at the grammar school at William and Mary. Hemphill, Wythe, America's First Law Professor," supra note 3, at 37. Several sources, however, suggest that Wythe was tutoring students well before Jefferson, including William F. Swindler, who states that Wythe's reputation as a teacher and lawyer was established by the time Jefferson turned to him in 1762." Swindler, "America's First Law Schools," supra note 1, at 6. Likewise, one of Wythe's own students, Littleton Waller Tazewell, stated that to the best of his knowledge, "there was no period of [Wythe's] life ... after he attained to manhood, during which he did not superintend the education of several young men." Quoted in Kirtland, George Wythe, supra note 3, at 120. Lyon G. Tyler also leaves the impression that Wythe was known for his teaching before tutoring Jefferson, for he states, "there is something curious in a young law student like Thomas Jefferson choosing Mr. Wythe as his instructor, when Peyton and John Randolph, sons of his great-uncle, Sir John Randolph, were also living in Williamsburg, and were eminent lawyers and his attached friends." Tyler, "George Wythe," supra note 3, at 67.
- Frank L. Dewey, Thomas Jefferson, Lawyer (1986), 9-17; Dumas Malone, Jefferson, the Virginian (1948), 62-87.
- Quoted in Brown, American Aristides, supra note 3, at 226; Carrington, "University Legal Education," supra note 3, at 533.
- William DuVal to Thomas Jefferson, 1806, quoted in Julian P. Boyd, "The Murder of George Wythe," in The Murder of George Wythe: Two Essays (1955), 24.
- Dill, Wythe, Teacher of Liberty, supra note 3, at 42.
- On Madison, see "James Madison," DAB, supra note 3, at XII, 182-84.
- Henry Tucker to St. George Tucker, August 1,1772, quoted in Swindler, "America's First Law Schools," supra note 1, at 6; Dill, Wythe, Teacher of Liberty, supra note 3, at 42; Charles T. Cullen, "St. George Tucker," in Bryson, Legal Education in Virginia, supra note 3, at 657-86.
- On Innes, see "James Innes," DAB, supra note 3, at IX, 486-87. Sources listing Innes as a Wythe student include Bryson, Legal Education in Virginia, supra note 3, at 21; Brown, American Aristides, supra note 3, at 228; Tyler, "George Wythe," supra note 3, at 72; Hugh Blair Grigsby, The History of the Virginia Federal Convention of 1788 (1890), I, 75 n.90, and Convention of 1776, supra note 3, at 123; and Hemphill, "Wythe, America's First Law Professor," supra note 3, at 2.
- On Innes, see "Harry Innes," DAB, supra note 3, at IX, 485-86. Hugh Blair Grigsby, the Commonwealth's leading historian during the middle decades of the nineteenth century, lists Innes as a Wythe student, although A.T. Dill states that it is "not likely [that he] received private training under Wythe." Dill, Wythe, Teacher of Liberty, supra note 3, at 99 n.319.
- Shepard, "George Wythe," in Bryson, Legal Education in Virginia, supra note 3, at 754; Shewmake, Honorable George Wythe, supra note 3, at 17; Devitt, William and Mary," supra note 3, at 429. W. Edwin Hemphill, however, could find no evidence of this relationship. Hemphill, Wythe, America's First Law Professor," supra note 3, at 2.
- See, e.g., Moncure Daniel Conway, Omitted Chapters of History Disclosed in the Life and Papers of Edmund Randolph (1888), 14; "Edmund Randolph," DAB, supra note 3, at XV, 353-55.
- Stated in the Colonial Williamsburg Foundation's online Historical Almanack.
- Hugh Blair Grigsby lists Cabell as an early Wythe student. Virginia Federal Convention, supra note 26, at I, 75 n.90. This relationship, however, has been labeled "not likely" by A.T. Dill. Wythe, Teacher of Liberty, supra note 3, at 99 n.319.
- Grigsby, Virginia Federal Convention, supra note 26, at I, 75 n.90. In another work, Grigsby states that Read, "though not a lawyer by profession, was well versed in the law." Convention of 1776, supra note 3, at 105. Unlike for several other names, Dill does not question this relationship, Wythe, Teacher of Liberty, supra note 3, at 99 n.319, although it seems more unlikely than the others he does doubt.
- Kirtland, George Wythe, supra note 3, lists a James Mercer as one of Wythe's students. On Mercer, see "James Mercer," DAB, supra note 3, at XII, 542. It is possible that James Mercer has been confused with his younger half-brother, John F. Mercer (1759-1821), a onetime governor of Maryland.
- Hugh Blair Grigsby states that Moore attended in about 1772 a course of lectures at William and Mary given by Wythe, Virginia Federal Convention, supra note 26, at II, 32, although this date, of course, is far too early for Wythe 's institutional teaching. Of course Moore could have apprenticed in Wythe's law office.
- Hugh Blair Grigsby lists as one of Wythe' s pupils a "Lewis" who attended Virginia's ratifying convention, and there were two delegates by that name, Thomas Lewis (b. 1718) of Rockingham, and Warner Lewis (ca. 1747-1791) of Gloucester. The former, of course, would have been too old to study under Wythe. See Grigsby, Virginia Federal Convention, supra note 26, at I, 75 n.90, and II, 20, 374 n.349.
- Clarkin, Serene Patriot, supra note 3, at 141.
- Id. at 142.
- For the text of bill 80 as well as commentary, see the Jefferson Papers, supra note 13, at II, 535-42.
- Thomas Jefferson's 1821 "Autobiography," in The Writings of Thomas Jefferson, ed. Paul L. Ford (1892), I, 66.
- Id. at I, 67. James Madison again brought the bill up in the General Assembly in 1785, but it was again not acted upon.
- Kirtland, George Wythe, supra note 3, at 114-15.
- Jefferson's "Autobiography," in Writings of Jefferson, supra note 39, at 1, 69-70.
- Dill, Wythe, Teacher of Liberty, supra note 3, at 42.
- Bryson, Legal Education in Virginia, supra note 3, at 22. Another source has stated that the word police "meant civil order or administration." Dill, Wythe, Teacher of Liberty, supra note 3, at 42.
- Bryson, Legal Education in Virginia, supra note 3, at 22. Many other sources agree that having disposed of the royalist faculty, the Visitors saw the college as "a training ground for republican citizenship." See, e.g., Brown, American Aristides, supra note 3, at 200; Hemphill, Wythe, America's First Law Professor," supra note 3, at 44.
- Bryson, Legal Education in Virginia, supra note 3, at 22.
- Lyon G. Tyler, "A Few Facts from the Records of William and Mary College," 4 Papers of the Amer. Hist. Assn. 129, 132 (1890).
- Brown, American Aristides, supra note 3, at 201.
- See, e.g., Clarkin, Serene Patriot, supra note 3, at 142; Brown, American Aristides, supra note 3, at 201.
- Faculty resolution quoted in Tyler, "Records of William and Mary," supra note 47, at 133.
- Clarkin, Serene Patriot, supra note 3, at 142; see also Tyler, "Records of William and Mary," supra note 47, at 135.
- See, e.g. Clarkin, Serene Patriot, supra note 3, at 183; Brown, American Aristides, supra note 3, at 217; Anderson, "Teacher of Jefferson and Marshall," supra note 1, at 334; Tyler, "Records of William and Mary," supra note 47, at 134-35; Shewmake, Honorable George Wythe, supra note 3, at 16.
- Clarkin, Serene Patriot, supra note 3, at 143.
- It is interesting to note that William and Mary would not be in session during the entire months of April and September, the two months during which Wythe would have to hold court. See Charles T. Cullen, "New Light on John Marshall's Legal Education and Admission to the Bar," 16 Am.] Legal Hist. 345, 345 (1972).
- Id. at 348.
- William F. Swindler, "John Marshall's Preparation for the Bar—Some Observations on His Law Notes," 11 Am.] Legal Hist. 207, 208 (1967). Without citing any sources, Jean Edward Smith in his John Marshall: Definer of a Nation (1996),78, states, "Every morning the students read law under Wythe's supervision: first Blackstone, then the traditional treatises, abridgements, and statutes. Wythe believed that mental vigor was greatest in the mornings, and he assigned the tough work early." As for the afternoons, they were supposedly "devoted to reading in related fields, particularly political philosophy," including Montesquieu and Hume.
- Smith, John Marshall, supra note 56, at 78, without giving a source, states that Wythe's lectures were at noon on Tuesdays and Thursdays. It is known, however, that in 1784 Wythe was giving a law lecture on Tuesdays from 10:00 a.m. to noon. Thomas Lee Shippen to Dr. William Shippen, February 5, 1784, quoted in Clarkin, Serene Patriot, supra note 3, at 156.
- See, for example, the discussion on different interpretations of John Marshall's commonplace book in Cullen, "New Light," supra note 54, at 347-48. Many commentators, such as Brown, American Aristides, supra note 3, at 202-03, and Clarkin, Serene Patriot, supra note 3, at 154, have suggested that John Marshall's commonplace book detailing Virginia's substantive law were notes taken from Wythe's lectures. Cullen, however, is of the opinion that Wythe's lectures probably dealt more with political theory than with substantive or procedural law," and in regard to the readings Wythe assigned, "The most Wythe seems to have done in his lectures in 1780 was to question his students on passages in these works." Id. at 348. See also Shepard, "George Wythe," in Bryson, Legal Education in Virginia, supra note 3, at 753: "In the lectures [Wythe] stressed political theory and surveyed the rapidly developing realm of constitutional law, always striving to reach beneath the surface to the ideas which had shaped the common-law tradition."
- Yale president Ezra Stiles wrote in his diary on June 8, 1784, that "Blacston the Basis of Law Lectures in Wm & Mary Coll." Quoted in Jefferson Papers, supra note 13, at VII, 302-03.
- Tyler, "George Wythe," supra note 3, at 68.
- Quoted in Brown, American Aristides, supra note 3, at 225.