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Who lives
who dies
who tells your story?^[1]

Alexander Hamilton did not spend much time in Williamsburg, but Hamilton: The Musical has spurred many Americans' interest in the Founding Fathers, and when it comes to George Wythe, it is an excellent question: Who tells his story? Not Wythe, who shunned the limelight and did not believe his thoughts were worth keeping for posterity. 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.^[2] In the early 19th century, someone wanted to compile and publish the notes Wythe made as William & Mary's Professor of Law and Police, and asked Jefferson to edit the collection. Jefferson declined, saying that it had been far too long since he had practiced law and he could not give Wythe's papers the treatment they deserved.^[3] No one took Jefferson's place, and Wythe's notes have since scattered to places unknown. For more information on the fate of Wythe's personal papers, see the Wythepedia article Wythe's Lost Papers.

Not as many historians have opted to tell Wythe's story compared to his Revolutionary compatriots. Go to a library, and you will see shelf upon shelf filled with biographies of the better-known Founders: Jefferson, Washington, Franklin, Madison, Adams, and so on. If you turn on the TV or go to the movies (or now, go to Broadway), you do not have to make much effort to find one of these big names portrayed. All the books written about Wythe, however, could fit nicely on a coffee table. Where are Wythe's portrayals? Who tells his story?

The shame of Wythe's obscurity is that he was arguably one of the most important of the Founding Fathers. Wythe educated many of the important legal minds of the United States's early days. His actions as a lawyer and chancellor greatly influenced the early development of the body of law in Virginia and in the new nation. One of Wythe's biographers, Robert B. Kirtland, noted that Wythe was "one of the few Americans of the Revolutionary era who understood the law profoundly, both by experience and by study."^[4] Wythe's story is too important to be left unheard, which is why the William & Mary Law Library created Wythepedia to tell it.

Fortunately, even though Wythe did not care much for publicity, and many of the papers that could shed light on his thinking are gone, we do have some tools that can provide insight into his mind. The most important is the collection of decisions he handed down as a chancellor. Wythe compiled a book of these cases, now known as Wythe's Reports.^[5] Several decades after Wythe died, Benjamin Blake Minor edited a second edition of Wythe's reports that added some more decisions Wythe had arranged to be published after the first edition came out.^[6]

Wythe's Reports are a bit different than many other case compilations (often called "case reporters"). Most reporters just publish the text of the judge's decision in a case. It seems as if Wythe wanted his Reports to be more than a mere recitation of judicial proceedings. It is hard to know exactly what Wythe intended to accomplish by publishing his Reports, since we cannot (short of supernatural means) ask him directly. B.B. Minor thought that Wythe wanted to "vindicate" his decisions that had been reversed by the Virginia Supreme Court of Appeals.^[7] Wythe and Edmund Pendleton, the Court of Appeals's President, followed similar career paths and worked together well during the Revoultion. The academic, introverted Wythe, however, stood in stark contrast to the gregarious Pendleton, and understanding these rivalry between these two jurisprudential giants, two of the most respected figures in Revolutionary-era Virginia, is important to understanding the tone and organization of Wythe's Reports. One of the most important differences was their attitude towards the law and its interpretation. Pendleton was practical, and viewed the law as something that needed to be adjusted and adapted to the situation. This often failed to jibe with Wythe's opinion that the law had definite boundaries, and while flexibility within those bounds is important, those borders should never be crossed, no matter the justification. Pendleton's rise to a position where he could impose his interpretation over Wythe's must have irked Wythe. One could understand why Wythe would want to write down his opinions on the law for posterity in the hopes that future generations would see the error of Pendleton's ways.^[8] For more on Wythe Pendleton's rivalry, see Wythepedia's page on Edmund Pendleton. Wythe biographer Robert Kirtland, however, says that to view Wythe's Reports as a bitter jeremiad is to misinterpret it; most of the decisions in the Rerports were not even reversed.^[9] Kirtland argues that it is better to think of Wythe's Reports as a sort of treatise -- a collection of Wythe's musings on the law of Virginia -- Just as Wythe's student St. George Tucker published a version of Blackstone with his own commentary to describe the state of the law in Virginia and what Tucker thought the law should be.

So what do Wythe's Reports tell us about their author? The first thing the reader may notice is Wythe's perpetual thirst for knowledge and his desire to pass that knowledge on to others. Wythe himself is one of the first and finest examples of his instructional ability. Wythe was largely self-taught, but compatriots regarded him as one of the most intelligent men of their generation. He could read several modern languages, and he also knew the Greek and Latin classics - in their original language.^[10] Wythe's intellect can work to both the advantage and disadvantage of the present-day reader. Many Wythe opinions are miniature lessons in the law, but those lessons often feels like they take the form of a Socratic dialogue with Wythe, not a passive lecture. Those who went to law school may get flashbacks, and the reader might feel as if they forgot to do their homework. Wythe assumed that a person reading his reports would have a good grounding in at least Latin, the major Greek and Roman tragedies, comedies, and epics, as well as the works of more modern authors such as Shakespeare, Dante, and Cervantes. Many of Wythe's opinions are rife with references to the works of ancient Greek and Latin scholars, the sixth-century Corpus Juris Civilis, and English scholars closer to Wythe's time such as Coke. More often than not, classics and legal works would be quoted in their Latin or Greek versions. Sometimes Wythe would provide an English summary of the point, but often not. Wythe had no qualms about repurposing the classics for his own purpose; when quoting them, he would sometimes correct the Latin to better fit the sentences he was using the quotes for.^[11] Wythe would even go so far as to contort excerpts out of context to fit his purpose. In Goodall v. Bullock, Wythe selectively quotes Livy's History of Rome to support an argument diametrically opposed to Livy's original statement. Wythe's allusions to literary works was hardly unusual; modern judges still cite to literature and popular culture. These days, however, such references are footnoted -- usually with a brief explanation for the use of the quote.^[12] Wythe might indicate that he was quoting something through italics or quotation marks, but he usually left it to the reader to understand where the reference came from and why Wythe included it. No hand-holding for his students. This was not an unreasonable expectation in Wythe's day. Many of the Founders received classical educations and were well-versed in Latin and Greek, as well as in Roman law.^[13] Wythe's passion for classical references did, however, cause some difficulty in committing his decisions to paper. Noted politician Henry Clay clerked for Wythe at the Chancery Court, and part of his duties were to transcribe Wythe's dictation of his cases (Wythe had trouble writing in those days because of gout). Clay, however, did "not (understand) a single Greek character", and thus had great trouble writing down the citations from Greek authors Wythe wanted to include in the reports. Clay said that he ended up copying the Greek characters from Wythe's original decisions.^[14]

Wythe's decisions also assume that the reader is familiar with contemporary political developments. This was a reasonable expectation for lawyers before his bench, but the average reader in the 21st century will find they have to engage in some historical research. A large portion of the High Court of Chancery's caseload involved property disputes, and many of those disputes tied in to then-current events. In order to properly summarize Wythe's decisions, I found myself taking a crash course on late-18th-century Virginia history and learning a lot more about the United States during its early days. Arguments over who owned land in Virginia's western frontier were one of the more frequent subjects of cases Wythe heard. The aftermath of the French and Indian War, as well as multiple conflicting land grants, often resulted in several conflicting claims to the same piece of property. Wythepedia's article on Land Disputes in Western Virginia offers the reader the background to help put these cases in proper context. Several other cases before the High Court of Chancery involved disputes over debt. Two of the major complicating factors in these cases were usually hyperinflation in Virginia during the 1770s and the efforts the Virginia and federal governments made to deal with pre-Revolutionary debt Americans owed British citizens. In cases such as Page v. Pendleton and Hamilton & Co. v. Urquhart, Wythe had to choose between conflicting state and federal laws dealing with British creditors. Wythe's response to this dilemma illustrates his dedication to making what he believes to be the right decision, even in the face of strong public opposition. Wythepedia's article on Virginia Hyperinflation and Debt helps to put these cases in context. Some of Wythe's cases demonstrate the poor state of women's legal rights in late 18th-century Virginia; the state followed the rule of marital unity, which meant that a husband essentially absorbed his wife's legal identity. This sometimes led to odd-looking dockets in which a woman filed a suit that seemed to act against her own interest because it was really the husband filing in her name. Wythepedia's article on Women’s Legal Rights in Wythe’s Time explains.

The centuries separating us from Wythe's time can present difficulties to the modern reader in other ways. Wythe sometimes refers to his sources using a shorthand contemporaries would likely know, but which are unfamiliar to people centuries removed, such as a reference in Turpin v. Turpin to simply "the book called, law of devises and revocations". Modern readers would have to do some detective work to determine that Wythe was talking about Gilbert's Law of Devises, Revocations, and Last Wills. Wythe could also reasonably assume that contemporary lawyers reading his reports would be familiar with current Virginia court procedure. Some motions that were probably common in the 18th century, but are relatively rare now, go unexplained. The 21st-century reader, however, is left pondering what it means in Goodall v. Bullock to "return the execution". By the same token, Wythe often provides little information in his decisions on the background of the case - how it arrived in the High Court of Chancery. The modern reader who does not know 18th-century Virginian court and chancery procedure may find themselves wondering why the parties are before Wythe, what the parties want him to do, and what events led to the current controversy? Several times while reading Wythe's Reports, the only way to get a good grasp on these issues was to read the opinion the Supreme Court of Virginia issued after someone appealed Wythe's decision. For example, Virginia Supreme Court Justice Lyons's opinion in Hoomes v. Kuhn gives the reader more information on what evidence was presented to the High Court of Chancery than does Wythe's own opinion, which consists entirely of a single run-on sentence. Those Supreme Court decisions often came from Pendleton's hand; Pendleton, the master litigator, no doubt knew the importance of persuasive facts, even when writing from the bench. Kirtland notes that in reading many of Wythe's decisions, the legal issue at hand and how he resolved it were the only things the reader needed to worry about. Facts that did not directly affect the law that applied were irrelevant -- even unusual facts that could shed some light on the parties' actions and that readers might find relevant. Wythe describes Hoomes v. Kuhn as a motion for a new trial on an assault and battery lawsuit; one must read the Supreme Court of Virginia's opinion to find out that it involved a pastor who thrashed a merchant because the merchant whipped the pastor's slave on suspicion of shoplifting.^[15]

This selective recitation of the background can lead to frustration for the reader, such as in the case of Hylton v. Hunter, in which most of Wythe's opinion seems to be heading towards one party's victory, but concludes with the other party on top -- an odd result that a more thorough explanation of prior events might have clarified. Wythe's discussion of the facts of the case occasionally jump back in forth in the timeline, Wythe going back in time to add a previously-undisclosed fact he now finds relevant. Sometimes Wythe's opinions will not provide relevant information until midway through. Someone reading Goodall v. Bullock from the beginning is left to ponder who William L. Thompson is and why he is so important until it is revealed several pages in that Mr. Thompson is a witness. It seems that Wythe is prone to the pitfall of many a brilliant mind. An expert explaining something to another person may often skip steps that are automatic and like second nature to the expert, but with which outsiders are unfamiliar. When Wythe does offer a detailed enumeration of the facts, it usually means that he thinks the law of Virginia is about to deliver a great injustice, or that the Virginia Supreme Court has gravely erred. These are often the cases where Wythe calls upon the ancient classics.^[16]

Comparing Wythe's opinions with Pendleton's, especially in cases in which a High Court of Chancery decision was appealed to the Supreme Court, makes for an interesting study of their contrasting personalities and attitudes towards the law. Wythe's focus on the legal principles at play to the exclusion of any fact Wythe considered extraneous epitomizes the great scholar "Wythe the Just", brilliantly debating and discussing the fledgling nation's jurisprudential path.^[17] Edmund Pendleton, on the other hand, often designs his opinions to clearly explain the facts and the procedural background for anyone who knew nothing about the parties or their conflict. Pendleton seems to be an jurist concerned with ensuring that his audience was following his argument step by step. Wythe was acknowledged as arguably the most brilliant jurisprudential mind of his generation, many of his theories ahead of their time, a man with intelligence that shone through in Wythe's opinions. Pendleton's opinions, however, demonstrate that man's near-insurmountable persuasive talents. A person reading both men's opinions may be little surprised at Pendleton's ability to best Wythe in the courtroom, a feat few achieved.^[18]

Wythe's Reports are more than a settling of scores with the Virginia Supreme Court, but Wythe's frustration with his brethren jurists on the state's high court comes through clearly in the language of some Wythe decisions. His opinion in Southall v. M'Keand is a multi-page diatribe against the Virginia Supreme Court, taking apart the higher court's opinion piece by piece. Wythe's sarcastic opening headnotes to Burnsides v. Reid are the words of a man quietly banging his head against the desk in frustration. Throughout the Reports, as Wythe explains the basis of his decisions and how the other courts erred, or how the very law of Virginia itself is in error, the reader may get the impression of a man who cannot understand why the world does not understand the correctness of his position, a man who feels that if he just explains his reasoning slowly and carefully enough, perhaps with a verbal rap to the knuckles, then finally they will see the error of their ways. This would fit in with the image of a George Wythe who, over the years, developed an intractable rivalry with the glad-handing Pendleton.^[19]

But what about Wythe's legal philosophy, the reason Wythe published his Reports in the first place? What do Wythe's opinions tell us about Wythe's interpretation of the law -- how he thought it stood, and how he thought it should be? One thing that quickly becomes apparent is that Wythe held no love for the legal precedent set by English courts, sentiments that were hardly unusual during the new nation's infancy. A substantial number of American legal minds felt it was their patriotic duty to reject English law in the heat of the Revolution's wake. Add to that warm American feelings towards their French benefactors, and there was a reasonable chance that many of the new American states would adopt Continental-European-style civil law instead of the common law of their now-despised motherland.^[20] Wythe thoroughly lays out the folly of blindly following English precedent in Field v. Harrison. In Devisme v. Martin, Wythe takes time out from his opinion to write dicta criticizing English precedent on the same topic. In Aylett v. Aylett, using a spot-on allusion to Cicero, he sets forth an entertaining takedown of the idea that American courts should feel bound to follow English court decision, noting that English courts would think it ridiculous to extend the same courtesy to their transatlantic brethren. In Rose v. Nicholas, Chancellor Wythe states it clearly: on at least some points of law, he needs to be convinced "otherwise than by precedents only."^[21] Wythe's sentiments would continue to be shared by great jurists in the following centuries; Oliver Wendell Holmes, Jr., wrote in 1897 that "(i)t is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV."^[22]

Also like many of his fellow Founders, Wythe had a fondness for Roman law, viewing it as a logic- and-reason-based alternative to the English common law.^[23] As Wythepedia's page on Wythe's Greek and Latin Classics notes, Wythe cited to Roman law frequently; the Corpus Juris Civilis shows up in his cases 21 times. In Wythe's day, the concept of a testament, which came from Roman-based civil law, was separate from the common-law will.^[24] In the case of Turpin v. Turpin, however, Wythe appears to use the term "testament" to refer to both wills and testaments, a contrast from the tendency of most modern Americans to use the term "will" to generically refer to both concepts.^[25]

Another aspect of Wythe's jurisprudence that shines through in his decisions is his determination to see justice done, even if it flew in the face of prevailing public sentiment or established Anglo-American law. This desire for justice above other considerations and his attitude towards English precedent may help explain why he declined a seat on the Virginia Supreme Court, opting to remain on the High Court of Chancery instead. Perhaps Wythe felt that equity would allow him to craft solutions that would be off limits as a judge of the common law.^[26] In Ross v. Pleasants, Wythe deliberately crafted a method of applying a debtor's payments that was much kinder to the creditor than the normally-applied Merchant's Rule. In a few decades, however, Wythe would prevail, and the U.S. Supreme Court would adopt his formula. It is regrettable that this case also illustrates Wythe's complex, densely-packed writing style that can make his opinions difficult to decipher.

Ross v. Pleasants was also one of several cases that illustrated Wythe's apparently firm belief that debts should be paid, no matter the circumstances or how they change. In Page v. Pendleton and Farley v. Shippen, Wythe rejected the idea that British citizens should forfeit any rights they had to repayment on debts owed before the Revolution. Wythe's opinion was unpopular in the United States's early years, and defied legislation the Virginia assembly passed to severely devalue, if not effectively eliminate, British-held debt. Parts of Virginia's elite never forgave Wythe for these rulings.^[27] Wythe may not have cared for English precedent as a rule, but he would not let such sentiments get in the way of delivering justice; Farley represents one of the rare cases in Wythe's Reports in which Chancellor Wythe goes so far as to cite English caselaw with approval.

Although it may not have made him popular with his fellow Virginians, Page v. Pendleton shows Wythe in peak form. The reader experiences Wythe the professor of jurisprudence, as he debates exactly what binds a person to a body of laws, even when that person did not actively consent to living under those laws. Wythe the crusader for justice warns other judges against succumbing to blind hatred of other nations or people and decries the idea of seizing the goods of another nation's citizenry just through right of conquest. Simply following Virginia's law as the legislature wrote it would not only have been a more popular decision, but it would have given Wythe the chance to deliver a stinging defeat to the defendant -- his long-time nemesis, Edumnd Pendleton. Wythe, however, resisted temptation and stuck to his principles. How many people in similar situations would do the same? Wythe the Just and law Professor Wythe are joined by Wythe the classical scholar, who illustrates his points with excerpts from the ancient Greeks.

References

1. ↑ "Who Lives, Who Dies, Who Tells Your Story?", Lin-Manuel Miranda, Hamilton: An American Musical, lyrics at http://genius.com/Lin-manuel-miranda-who-lives-who-dies-who-tells-your-story-lyrics (visited Aug. 12, 2016).
2. ↑ Robert B. Kirtland, George Wythe: Lawyer, Revolutionary, Judge (New York: Garland Publishing, 1986): 5-6.
3. ↑ Letter from Thomas Jefferson to Gov. John Tyler, Sr., Nov. 25, 1810.
4. ↑ Kirtland, 14.
5. ↑ George Wythe, Decisions of Cases in Virginia by the High Court of Chancery (Richmond: Printed by Thomas Nicolson, 1795).
6. ↑ 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).
7. ↑ B. B. Minor, Memoir of the Author in Wythe, Decisions of Cases, 2nd ed., xxii.
8. ↑ Kirtland, 47-54.
9. ↑ Kirtland, 209.
10. ↑ Wythe Holt, "George Wythe: Early Modern Judge," Alabama Law Review 58 (2007): 1010.
11. ↑ Richard J. Hoffman, "Classics in the Courts of the United States, 1790-1800," American Journal of Legal History 22 (1978): 59.
12. ↑ See, e.g., Rapanos v. U.S., 547 U.S. 715, 727 n.2 (2006).
13. ↑ Timothy G. Kearley, "From Rome to the Restatement", Law Library Journal 108(1) (Winter 2016): 58-61.
14. ↑ Henry Clay to B.B. Minor, May 3, 1851, reproduced in Minor, xxxii-xxxiii.
15. ↑ Kirtland, 209-10.
16. ↑ See, e.g., Wilkins v. Taylor, Aylett v. Aylett, Ross v. Pleasants.
17. ↑ Carol Berkin, A Brilliant Solution (New York: Harcourt, 2002): 64.
18. ↑ Kirtland, 47.
19. ↑ Kirtland, 47-54.
20. ↑ Timothy G. Kearley, "From Rome to the Restatement", Law Library Journal 108(1) (Winter 2016): 60.
21. ↑ Rose v. Nicholas, Wythe 268 (1794).
22. ↑ Kasia Solon Cristobal, "From Law in Blackletter to Blackletter Law", Law Library Journal 108(2) (2016): 213, citing Oliver Wendell Holmes, Jr., "The Path of the Law", Harvard Law Review 10 (1897): 469.
23. ↑ Kearley, "From Rome to the Restatement", 58.
24. ↑ John Bouvier, rev. by Francis Rawle, "Will", Bouvier's Law Dictionary (Kansas City, MO: Vernon Law Book Co., 8th ed. 1914).
25. ↑ Bryan A. Garner, ed., "Will (2)", Black's Law Dictionary (St. Paul, MN: Thomson Reuters, 10th ed. 2014): 1833.
26. ↑ Kirtland, 51, n.23. As it turns out, the common law sometimes got in the last word anyway, as Wythe's decisions could be appealed to the Virginia Supreme Court.
27. ↑ George Holt, "George Wythe: Early Modern Judge", Alabama Law Review 58 (2007): 1024.