Difference between revisions of "Wythe's Judicial Career"

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*''[[President & Professors & Masters of William & Mary Coll. v. Hodgson|The President and Professors and Masters of William & Mary College v. Hodgson]]''
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Revision as of 14:16, 7 May 2018

Detail from first day cover postcard for June 20, 1985, with cachet of George Wythe.

Despite being one of the more obscure Founding Fathers, George Wythe played an important role in the early history of the United States. William & Mary's -- and the United States' -- first law professor, he was a man of great integrity who greatly influenced some of the fledgling country's most important figures with jurisprudential ideas that were often ahead of their time. Why do Americans not know more about this teacher, judge, delegate to the Second Continental Congress, and signer of the Declaration of Independence? One reason may be a lack of documentation. Thomas Jefferson said he had often seen Wythe toss the documents he created while working on a case into the fire upon the case's conclusion.[1] The notes Wythe made as William & Mary's Professor of Law and Police scattered to places unknown long ago.[2]

In 1778, Wythe was appointed to the newly created High Court of Chancery.[3] As a member of the Chancery Court, Wythe also heard appellate cases. An Act of the Assembly in 1779 required all three of the initial Chancery Court judges to serve ex officio on the Court of Appeals with judges from the Court of Admiralty and the General Court.[4] When the Assembly reorganized the courts in 1788 and created a permanent Court of Appeals, Wythe remained as the sole chancellor with his decisions subject to review by the Court of Appeals.[5]

In 1780, Wythe — along with William Paca of Maryland and Titus Hosmer of Connecticut — was elected one of three judges to serve on the Court of Appeals in the Cases of Capture, a newly-established federal appeals court (pre-dating the U.S. Supreme Court by nearly a decade) to hear cases from all Courts of Admiralty. Wythe declined the appointment, and Cyrus Griffin was chosen in his place.[6]

Wythe's career as a judge may be the best-documented aspect of his life. We have multiple sources for Wythe's decisions, including decisions published by Wythe himself and decisions published in the Virginia Reports. The latter include landmark Court of Appeals cases such as Commonwealth v. Caton.

Cases published by Wythe

Wythe compiled a volume of some of his Chancery Court cases, now known as Wythe's Reports.[7] Several decades after Wythe died, Benjamin Blake Minor edited a second edition of the Reports that added decisions Wythe published separately.[8]

The Reports contain cases that Wythe heard as Virginia's High Chancellor, the judge who sat on the commonwealth's High Court of Chancery, a court of equity. In the Anglo-American legal system, equity developed as an alternative set of remedies to the common law system; equity was supposed to provide a solution when the common law outcome would not provide proper justice. In the early days of the United States, many states had separate courts to hear equity cases. Equity cases usually involved property, contract, and inheritance disputes, so those are the cases the reader will find in Wythe's Reports. Wythepedia has created pages for each of the decisions in the Reports summarizing the case and its background and explaining references to sources Wythe cited. We can think of Wythe's Reports as his version of a casebook, the textbooks that modern law students are familiar with. Wythe excerpts and summarizes the court's decisions, sometimes including subsequent appeals to other courts, then comments on them. Wythe hopes that by reading his commentaries on the courts' decisions, future lawyers and students of law will reach a better understanding of the law as it was in Virginia and how he thought it should be.

Wythe's Reports demands a lot from its readers. Wythe frequently cited or alluded to Ancient Greek and Latin works (often in their original language, with no English translation), as well as more recent classic authors such as Cervantes, Dante, and Shakespeare. He frequently used shorthand references and terms of art that lawyers of his era would understand, but which may baffle 21st-century readers. Wythe frequently left out information such as how the case arrived before him or facts that Wythe found irrelevant to the point he was trying to make. Often, if a Wythe decision was appealed to the Virginia Supreme Court of Appeals, that higher court's opinion would be a better source for the facts of the case.

Properly understanding Wythe's decisions also means knowing their historical context. Many of the cases Wythe decided were influenced by events that were familiar to educated people in his day, but are esoteric history to modern Americans. Wythe also believed that Roman law principles were sometimes superior to English legal precedent, and cautioned against blindly following England's caselaw. Wythe believed, as did many of his contemporaries, that as a new country, the United States might wish to follow European-style civil law principles rather than Anglo common law.[9]

Another important piece of subtext lurking within Wythe's Reports is its author's long rivalry with Edmund Pendleton, President of the Virginia Supreme Court of Appeals. Wythe had arguably the most brilliant jurisprudential mind of his generation, and he was rarely defeated when he argued a case. The gregarious Pendleton, however, was a master litigator and one of the few people capable of defeating Wythe in court. As President of the Supreme Court, Pendleton reversed a substantial number of Wythe's decisions.

Wythepedia articles on the cases in Wythe's Reports summarize the case, and include notes and links to useful articles that can better explain the conflict and reasoning in the case. Wythepedia also includes articles that fill in the background behind a number of these decisions. Wythe's Reports can be a treatise on Virginia law and equity, a snapshot of life in Virginia during the late 18th century, and a profile of one of this nation's most underappreciated Founders.

Cases from Virginia Reports

County court cases

Court of Appeals cases

See also


  1. Robert B. Kirtland, George Wythe: Lawyer, Revolutionary, Judge (New York: Garland Publishing, 1986), 5-6.
  2. For more information on the fate of Wythe's personal papers, see the Wythepedia article Wythe's Lost Papers.
  3. Beverly Tucker describes the choice of Wythe as a judge, in The Principles of Pleading (Boston: Charles C. Little & James Brown, 1846), 56:
    ...the people were not wholly insensible of the want of a Court of somewhat different character; and to supply that want was one of the objects, to which the framers of the new Constitution directed their attention. To do this, they established three Courts, for which sixteen Judges learned in the law were wanting. The difficulty was to find the men fit to fill these important posts. Integrity and talent were abundant, but a learned lawyer was indeed a rara avis. What motive had the lawyers had to acquire learning? With the exception of some few who had studied the profession abroad, and had not been long enough in Virginia to lose the memory of what they knew, in the loose practice prevailing here, there was but one man in the State who had any claims to the character. I speak of the venerable Chancellor Wythe, a man who differed from his contemporaries in this, because in his ordinary motives and modes of action he differed altogether from other men. Without ambition, without avarice, taking no pleasure in society, he was by nature and habit addicted to solitude, and his active mind found its only enjoyment in profound research. The languages of antiquity, the exact sciences, and the law, were the three studies which alone could be pursued with a reasonable hope of arriving at that certainty which his upright and truth-loving mind contemplated as the only object worthy of his labors. To these he devoted himself, and he became a profound lawyer for the same reason that he was a profound Greek scholar, astronomer and mathematician.
  4. Thomas Alonzo Dill, George Wythe: Teacher of Liberty (Williamsburg, Va.: Virginia Independence Bicentennial Commission, 1979), 40.
  5. William Brockenbrough, Virginia Cases: Or, Decisions of the General Court of Virginia, Vol. 2 (Richmond, VA: Peter Cottom, 1826), xiii.
  6. Hampton L. Carson, The Supreme Court of the United States: Its History (Philadelphia: A.R. Keller, 1892), 1:55-56.
  7. George Wythe, Decisions of Cases in Virginia by the High Court of Chancery (Richmond: Printed by Thomas Nicolson, 1795).
  8. George Wythe, Decisions of Cases in Virginia by the High Court of Chancery with Remarks upon Decrees by the Court of Appeals, Reversing Some of Those Decisions|Decisions of Cases in Virginia by the High Court of Chancery, 2nd ed., ed. B.B. Minor (Richmond: J.W. Randolph, 1852).
  9. Timothy G. Kearley, "From Rome to the Restatement", Law Library Journal 108(1) (Winter 2016): 60.

Further reading

  • Bryson, W. Hamilton. "The Use of Roman Law in Virginia Courts." In American Journal of Legal History 28 (1984): 135-146.
  • Hoffman, Richard J. "Classics in the Courts of the United States, 1790-1800." In American Journal of Legal History 55 (1978): 55-84.
  • Holt, Wythe. "George Wythe: Early Modern Judge." In Alabama Law Review 58, no. 5 (2007): 1009-1039.

External links