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John P. Kennedy, Memoirs of the Life of William Wirt, Attorney General of the United States, vol. 1 (Philadelphia, PA: Lea and Blanchard, 1849), 150-154.^[1]

Chapter XII

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CHAPTER XII.

1806.

REMOVES TO RICHMOND A PROFESSIONAL CASE OF CONSCIENCE.—DEFENCE OF SWINNEY— CHANCELLOR WYTHE— JUDGE CABELL.—LETTER TO MRS. W. ON SWINNEY'S CASE.—FONDNESS FOR MUSIC—LETTER TO F. W. GILMER RECOLLECTIONS OF PEN PARK.

His dwelling place is now once more in Richmond. His return to the bar there is signalized by a case of conscience, the proposing of which shows that he had now reached that point in his profession in which, no longer impelled by hard necessity, he might debate with himself a question of casuistry, upon the merits of taking employment in a criminal cause, wherein he had reason to believe the criminal unworthy of defence. This is a new era in his forensic life. It is an incident which does not always arrive in the career of even eminent lawyers. The point has often been a debated question. The better opinion of the bar seems generally to have settled it on the side of their own interest; much to the gratification of culprits, who, however steeped in iniquity, find no lack of energetic and skilful defence from the brightest, if not the best, lights of the profession. A trial is regarded as a species of tourney, in which the champions are expected to show their prowess—to use a phrase of the British Spy—in "forensic digladiation," as little concerned with the intrinsic right or wrong of the accusation, as the knights of the ancient tilting yard were with the real merits of the beauty of their respective mistresses. The laws of chivalry placed the true knight in a category somewhat resembling that of Captain Absolute. "Zounds, sirrah, the lady shall be as ugly as I choose: she shall have a hump on each shoulder; she shall be as crooked as the crescent; her one eye shall roll like the bull's in Coxe's Museum; she shall have a skin like a mummy and the beard of a Jew,—she shall be all this,— and you shall ogle her all day and sit up all night to write sonnets on her beauty." The question of conscience ordinarily fares no

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better in the courts, in the customary tilting there in defence of suspected innocence.

The case which now exercised the meditation of Wirt was that of a man, by the name of Swinney, charged with the crime of poisoning the venerable Chancellor Wythe, who had just died in Richmond, under circumstances which led to a strong suspicion of the guilt of the accused. Chancellor Wythe was one of the best men the country ever produced. Distinguished for the simplicity of his character, his bland and amiable manners, his uprightness and steadfast devotion to duty, he was universally beloved in the society of Richmond.

I am indebted to a most estimable gentleman, whose name frequently appears in the course of this biography, Judge Cabell,* the President of the Court of Appeals of Virginia, for some recollections of the Chancellor, which very agreeably confirm what has been often said of his gentle, and philanthropic temper; and which also afford melancholy testimony as to the foul deed which is supposed to have terminated his life.

"You and I may remember," says the Judge, in a letter to Mrs. Wirt," the trouble he gave himself to entertain the visiters of his young niece, Miss Nelson, who lived with him a few years. She and all of us were almost children, and few grown men would have found any interest in staying in the room where we were. But the good old gentleman brought forth his philosophical apparatus and amused us by exhibiting experiments, which we did not well comprehend, it is true, but he tried to make us do so, and we felt elevated by such attentions from so great a man.

*William H. Cabell, the gentleman here alluded to, now at the head of the Bench of Virginia, crowned with the richest honors of a ripe old age, and surrounded by an affectionate circle of friends, married Agnes, the eldest daughter of Col. Gamble, and sister of Mrs. Wirt. He represented Amherst county in the Legislature of Virginia, from 1795 to 1805, except during three years of this interval. In 1805 he was elected Governor of the State, and at the expiration of three years was appointed to the Bench of the General Court. He was transferred, in 1811, to the Court of Appeals, of which he is, at this time—1849—the President. The connection between him and Mr. Wirt laid the foundation of an intimate friendship, which was increased with every succeeding year until death dissolved it. Many proofs of this may be found in the correspondence to which our narrative hereafter refers. In this intimacy, it will be seen also, that Joseph Cabell, the brother of the Judge, largely participated.

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"To test the theory that there was no natural inferiority of intellect in the negro, compared with the white man, he had one of his own servant boys and one of his nephews both educated exactly alike. I believe, however, that neither of them did much credit to their teacher.

"The young men who studied law with him, or who were occupied in his service were all devoted to him. Henry Clay was one of them. The Chancellor lived to a very old age. In his appearance he was thin, rather tall, but stooped from age and debility, as he walked to and from the Capitol to his own house. He generally lived alone, but in his latter years he had a nephew with him to whom he intended to bequeath his estate. This was Swinney. The common belief was that this man, being impatient for his uncle's money, poisoned him. He was tried for his life. Mr. Wirt was his lawyer, and he was acquitted. Yet there was but little doubt of his guilt in the minds of most persons. The cook said that he came into the kitchen and dropped something white into the coffee-pot, making some excuse to her for doing so. She and another servant partook of the coffee. I have heard that the latter died in consequence. The coffee grounds being thrown out, some fowls ate of them and died. The unhappy old gentleman lived long enough after taking the coffee to alter his will, so that the suspected man got no portion of his estate at last. The coffee grounds were examined and arsenic was found in abundance mingled with them."

This little sketch presents the outlines of the case, as it was developed at the trial and in the investigations of the day.

Wirt's doubts, to which I have alluded, upon the propriety of engaging in the defence of Swinney, are told in the following letter written from Williamsburg, after he had engaged his house in Richmond, and in the moments of his removal thither.

TO MRS. WIRT.
WILLIAMSBURG,

July 13, 1806.

*          *          *          *          *          *          *

"I have had an application made to me yesterday, which embarrasses me not a little, and I wish your advice upon it. I dare say you have heard me say that 1 hoped no one would undertake

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the defence of Swinney, but that he would be left to the fate which he seemed so justly to merit. Judge Nelson, himself, has changed, a good deal, the course of my opinions on this subject, by stating that there was a difference in the opinion of the faculty in Richmond as to the cause of Mr. Wythe's death, and that the eminent McClurg, amongst others, had pronounced that his death was caused simply by bile and not by poison. I had concluded that his innocence was possible, and, therefore, that it would not be so horrible a thing to defend him as, at first, I had thought it. But I had scarcely made up my mind on thi3 subject, little supposing that any application would be made to me. Yesterday, however, a Major A. M., a very respectable gentleman, and an uncle to Swinney on the mother's side, came down in the stage from Richmond, and made that application in a manner which affected me very sensibly. He stated the distress and distraction of his sister, the mother of Swinney; said it was the wish of the young man to be defended by me, and that if I would undertake it, it would give peace to his relations. What shall I do? If there is no moral or professional impropriety in it, I know that it might be done in a manner which would avert the displeasure of every one from me, and give me a splendid debut in the metropolis. Judge Nelson says I ought not to hesitate a moment to do it; that no one can justly censure me for it; and, for his own part, he thinks it highly proper that the young man should be defended. Being himself a relation of Judge Wythe's, and having the most delicate sense of propriety, I am disposed to confide very much in his opinion. But I told Major M., I would take time to consider of it, and give him an answer, at the farthest, in a month. I beg you, my dear B., to consider this subject, and collect, if you can conveniently in conversation, the opinions of your parents and Cabell, and let me hear the result. My conduct through life is more important to you and your children than even to myself; for to my own heart I mean to stand justified by doing nothing that I think wrong. But, for your sakes, I wish to do nothing that the world shall think wrong. I would not have you or them subject to one reproach hereafter because of me."

On such a question as is here proposed—indeed on most questions of conduct or duty,—the sensibility of an intelligent and vir

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tuous woman is often worth more than all the dialectics of the most accomplished casuist, to discern what it best becomes us to do in a matter that touches our reputation. Her feelings are but the quick perceptions of a heart that reasons better than the mind. Guided by the instinctive love, characteristic of her sex, of what is beautiful, not less in moral than in physical life, she lights upon her conclusion with a rapidity and a truth which outstrip all argument in speed, and often, in equal degree, surpass it in wisdom. When this judgment is stimulated by the affectionate anxiety of a wife, it is even less apt to stray into error: the very tenderness of her relation renders it the more impartial.

How it fared in regard to Swinney's case, is told in a passage from a letter written within ten days after the last. • • • "I shall defend young Swinney under your counsel. My conscience is perfectly clear, from the accounts I hear of the conflicting evidence. Judge Nelson again repeats, on consideration, the opinion he before gave me as to the perfect propriety of the step." Swinney, as we have seen, was tried and acquitted. I have no record to furnish me the grounds of this acquittal, much less to enable me to say any thing of "the splendid debut" which Wirt anticipated.

It is not unlikely that the trial terminated in favor of the accused from a defect in the evidence, by no means unusual in those states, whose statutory law disqualifies a witness from giving testimony, upon objections founded merely in the race or blood of the person acquainted with the facts. The cook in this case, who seems to have been, perhaps, the only direct witness, we may conjecture, was a negro, and forbidden to be heard in a court of justice. If this be the real cause of the acquittal, it presents a very striking and cogent example of the impolicy of a law so prevalent in the United States. It may well be questioned, whether more inconvenience and mischief do not result from such legal restraints as disable our familiar servants from testifying to the thousand transactions in which our interest is concerned, and under circumstances that scarcely admit of other testimony, than can be compensated by any supposed good which may properly be ascribed to the disqualification. Is there, in fact, any just ground of policy in shutting off the only testimony by which in

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nocence may be proved, guilt established, or common matters of right determined? Are not courts and juries sufficiently able to judge of the credibility of a witness in every case?

References

1. ↑ John P. Kennedy, Memoirs of the Life of William Wirt, Attorney General of the United States, vol. 1 (Philadelphia, PA: Lea and Blanchard, 1849), 150-154.