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{{DISPLAYTITLE:''An Introduction to ''Wythe's Reports}}
 
{{DISPLAYTITLE:''An Introduction to ''Wythe's Reports}}
 
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''Who lives''<br>
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Americans' fascination with the Founding Fathers seems to wax and wane as time passes. Washington and Jefferson are always present in the popular mind along with high-profile figures from other eras: Lincoln, FDR, Reagan, and so on. Many other Founders linger in relative obscurity unless a well-made work of art pulls them into the spotlight. Not that long ago, asking the average modern American about Alexander Hamilton would likely get a mumbled reply about the ten-dollar bill. After Lin-Manuel Miranda's musical, Hamilton is at the forefront of our minds. One of the more obscure Founders is George Wythe, the College of William & Mary's first law professor. Today, if anyone encounters Wythe, it is usually as a supporting character in other Founders' stories: as mentor, teacher, and friend to Jefferson; or as a committee chair calling for Virginia to ratify the U.S. Constitution.  
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''who dies''<br>
 
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''who tells your story?''<ref>"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).</ref>
 
  
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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.<ref>Robert B. Kirtland, ''George Wythe: Lawyer, Revolutionary, Judge'' (New York: Garland Publishing, 1986): 5-6.</ref> 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.<ref>[[Jefferson-Tyler Correspondence|Letter from Thomas Jefferson to Gov. John Tyler, Sr., Nov. 25, 1810]].</ref> 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 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?
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Wythe, however, was much more than a bit player in the United States's early days. As a professor, he imparted the principles of citizenship, leadership, and the law to leading figures in the fledgling United States and in the Commonwealth of Virginia. As a judge and an attorney, he presented innovative legal concepts that would help shape the course of American jurisprudence. Wythe was "one of the few Americans of the Revolutinary era who understood the law profoundly, both by experience and by study,"<ref>Robert B. Kirtland, ''George Wythe: Lawyer, Revolutionary, Judge'' (New York: Garland Publishing, 1986): 14.</ref> and "a man widely venerated for his integrity."<ref>Lynne Cheney, ''James Madison: A Life Reconsidered'' (New York: Viking, 2014): 176.</ref> Wythe valued his integrity, even if it meant resisting popular public opinion and risking long-term antipathy from Virginia's elite class.<ref>Wythe Holt, "George Wythe: Early Modern Judge", ''Alabama Law Review'' 58 (2007): 1017-1024.</ref> Why do Americans not know more about this professor (first in the United States), judge, delegate to the Second Continental Congress, and signer of the Declaration of Independence?
  
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The shame of Wythe's obscurity is that he was one of the most important figures in the early days of the new American nation. 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 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."<ref>Kirtland, 14.</ref> 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 while sitting on the bench of Virginia's High Court of Chancery. Wythe compiled a book of these cases, now known as ''Wythe's Reports''.<ref>George Wythe, ''[[Wythe's Reports|Decisions of Cases in Virginia by the High Court of Chancery]]'' (Richmond: Printed by Thomas Nicolson, 1795).</ref> Several decades after Wythe died, [http://en.wikipedia.org/wiki/Benjamin_Blake_Minor Benjamin Blake Minor] edited a second edition of the ''Reports'' that added some more decisions Wythe had arranged to be published after the first edition came out.<ref>George Wythe, ''[[Wythe's Reports|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).</ref>
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Part of the issue may be a lack of documentation. Researchers investigating many of the other Founders have volumes upon volumes of papers at their disposal. Wythe, on the other hand, was not so generous. 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.<ref>Kirtland, 5-6.</ref> In the early 19th century, state printer Thomas Ritchie obtained the notes Wythe made as William & Mary's Professor of Law and Police, and considered publishing them. Virginia Governor John Tyler, Sr., 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.<ref>[[Jefferson-Tyler Correspondence|Letter from Thomas Jefferson to Gov. John Tyler, Sr., Nov. 25, 1810]].</ref> 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]].
  
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''Wythe's Reports'' are a bit different than many other case compilations, which are 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.<ref>B. B. Minor, Memoir of the Author in Wythe, ''Decisions of Cases,'' 2nd ed., xxii.</ref> 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 the 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 his ''bete noire'''s ways.<ref>Kirtland, 47-54.</ref> Take a look at Wythepedia's page on [[Edmund Pendleton]] for more information on his rivalry with Wythe. Kirtland, however, says that to view Wythe's Reports as a bitter jeremiad is to misinterpret it; most of the decisions in the ''Reports'' were not even reversed.<ref>Kirtland, 209.</ref> Better, Kirtland says, 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 [[Tucker's Blackstone|Blackstone]] with his own commentary to describe the state of the law in Virginia and what Tucker thought the law should be.
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We may not have many of Wythe's personal notes, but we do have some sources that can provide insight into his thinking and his jurisprudence. The most important is the collection of decisions he handed while sitting on the bench of Virginia's High Court of Chancery.  Wythe compiled a book of these cases, now known as ''Wythe's Reports''.<ref>George Wythe, ''[[Wythe's Reports|Decisions of Cases in Virginia by the High Court of Chancery]]'' (Richmond: Printed by Thomas Nicolson, 1795).</ref> Several decades after Wythe died, [http://en.wikipedia.org/wiki/Benjamin_Blake_Minor Benjamin Blake Minor] edited a second edition of the ''Reports'' that added some more decisions Wythe had arranged to be published after the first edition came out.<ref>George Wythe, ''[[Wythe's Reports|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).</ref>
  
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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. The polyglot Wythe could read several modern languages, as well as Ancient Greek and Classical Latin.<ref>Wythe Holt, "George Wythe: Early Modern Judge," ''Alabama Law Review'' 58 (2007): 1010.</ref> 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 [[Fourth Part of the Institutes of the Laws of England|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.<ref>Richard J. Hoffman, "Classics in the Courts of the United States, 1790-1800," ''American Journal of Legal History'' 22 (1978): 59.</ref> 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.<ref>''See, e.g.,'' ''Rapanos v. U.S.'', 547 U.S. 715, 727 n.2 (2006).</ref> 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.<ref>Timothy G. Kearley, "From Rome to the Restatement", ''Law Library Journal'' 108(1) (Winter 2016): 58-61.</ref> Wythe's passion for classical references did, however, cause some difficulty in committing his decisions to paper. Noted politician [https://en.wikipedia.org/wiki/Henry_Clay 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.<ref>Henry Clay to B.B. Minor, May 3, 1851, reproduced in Minor, xxxii-xxxiii.</ref>
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''Wythe's Reports'' contain cases that Wythe heard as Virginia's High Chancellor, the judge who sat on the commonwealth's High Court of Chancery. The High Court of Chancery was 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 soultion when the common law outcome would not provide proper justice. For example, if Person A bought a painting from Person B the day before the painter died and the painting's value tripled, the common-law remedy (probably requiring Person B to refund the purchase price) would not properly compensate Person A if Person B changed their mind and kept the painting. In this case, equity would give Person A the remedy of specific performance: Person B would have to give Person A the painting. In the early days of the United States, many states had separate courts to hear equity cases, such as Wythe's High Court of Chancery. These days, in almost all states, the same court handles equitable and legal remedies.<ref>The article [http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1378&context=flr Howard L. Oleck, "Historical Nature of Equity Jurisprudence", ''Fordham Law Review'' 20 (1951): 23] has a good description of the history of courts of equity in the U.S. [http://escholarship.org/uc/item/5s5119t5 Samuel L. Bray, "The System of Equitable Remedies", ''UCLA L. Rev.'' 63 (2016): 530] summarizes the state of equity in American courts today.</ref> Therefore, the cases in ''Wythe's Reports'' involve equity, not the common law. As a result, many of the cases in the ''Reports'' involve similar topics. Property and inheritance disputes compose the vast majority of the decisions. Wythepedia has created pages for each of the decisions in the ''Reports''; each page summarizes the case and its background, and explains references to sources that Wythe makes in the cases.
  
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Wythe's decisions also assume that the reader is familiar with contemporary political developments. This was a fair expectation for lawyers before his bench, but the average reader in the 21st century will  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. Wythe's cases often involved arguments over who owned land in Virginia's western frontier. The aftermath of the French and Indian War, as well as multiple conflicting land grants, frequently resulted in several conflicting claims to the same piece of property. Wythepedia's article on [[Land Disputes in Western Virginia]] offers the background needed to 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 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.  
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Wythe, however, did not keep the limited scope of the contents prevent him from making his ''Reports'' a commentary on the state of jurisprudence in his country. We can think of ''Wythe's Reports'' as his version of a casebook, the textbooks that modern law students are familiar with. Just like 21st-century casebooks, Wythe excerpts and summarizes the court's decisions, sometimes including subsequent appeals to other courts, then comments on them. Wythe hopes that the reader, by reading Wythe's commentaries on the courts' decisions, will reach a better understanding of the law as it was in Virginia and how Wythe thought it should be.  
  
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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.<ref>Kirtland, 209-10.</ref>
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Wythe expected much of his students, and his ''Reports'' demands a lot from its reader. Wythepedia articles on Wythe's cases include notes and links to useful articles to help provide background and to explain Wythe's references that may be difficult for the modern reader. 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. Wythe had no problem with modifying those classics to suit his purpose. Such references increase in frequency in opinions where Wythe believes Virginia law will deal a great injustice to a party.<ref>''See, e.g., [[Wilkins v. Taylor]], [[Aylett v. Aylett]], [[Ross v. Pleasants]].''</ref> Quotes were not always indicated; Wythe frequently expected the reader to pick up on these references. Sometimes, Wythe adjusted the original Latin quotation to better fit his style.<ref>Richard J. Hoffman, "Classics in the Courts of the United States, 1790-1800," ''American Journal of Legal History'' 22 (1978): 59.</ref> At least once, in ''[[Goodall v. Bullock]]'', Wythe extracted a Livy quote out of context to support the flip side of Livy's original argument. Wythepedia's article on [[Wythe's Greek and Latin Classics]] lists resources for further research on Wythe's use of these works.
  
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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.<ref>''See, e.g., [[Wilkins v. Taylor]], [[Aylett v. Aylett]], [[Ross v. Pleasants]].''</ref> 
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The 21st-century reader of ''Wythe's Reports'' must also contend with shorthand references and terms of art that would be familiar to Wythe's legal contemporaries, but have since vanished from use. Someone reading [[Goodall v. Bullock]] will puzzle over what it means to "return the execution".<ref>This referred to part of the process a sheriff (or his deputies) went through to deliver a writ issued by the court. The sheriff ''returned the execution'' when they returned the writ to the court that issued it along with notations of what actions the sheriff had taken using the writ's power.</ref> If a person wanted to refer to some of the books Wythe cited, they might need to do some detective work first. An 18th-century Virginia lawyer might know that Wythe's reference in [[Turpin v. Turpin]] to "the book called, law of devises and revocations" meant Gilbert's ''[[Law of Devises, Revocations, and Last Wills]]''; most 21st-century lawyers will not.
  
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Comparing Wythe's opinions with Pendleton's 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.<ref>Carol Berkin, ''A Brilliant Solution'' (New York: Harcourt, 2002): 64.</ref> 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.<ref>Kirtland, 47.</ref>    
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Wythe frequently omitted procedural history -- an explanation of how the case arrived in his court. He was also prone to leaving out facts that he did not believe were relevant to the point he was trying to make in discussing the case. If a Wythe decision was appealed to the Virginia Supreme Court, the Supreme Court's opinion would frequently present a better discussion of how the case came to the High Court of Chancery, what the facts of the case were, and sometimes even what happened in the High Court of Chancery, than Wythe's own decision.<ref>''See, e.g., [[Hoomes v. Kuhn]]''.</ref>  
  
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''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.<ref>Kirtland, 47-54.</ref> 
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Properly understanding Wythe's decisions means knowing their historical context. Many of the cases Wythe heard involved property, probate, and contract disputes, which were influenced by events that were familiar to educated people in Wythe's day but are esoteric history to modern Americans. Wythepedia includes several articles to fill in the background behind a number of these decisions. Our article on [[Land Disputes in Western Virginia]] explains many of the cases Wythe heard involving real estate. Contract arguments in the post-Revolutionary era often centered around the instability of Virginia's economy before, during, and after the war; [[Virginia Hyperinflation and Debt]] explains. Several of the property and probate cases illustrated the poor legal position Virginian women found themselves in; [[Women’s Legal Rights in Wythe’s Time]] describes their situation.
  
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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.<ref>Timothy G. Kearley, "From Rome to the Restatement", ''Law Library Journal'' 108(1) (Winter 2016): 60.</ref> 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."<ref>''Rose v. Nicholas'', Wythe 268 (1794).</ref> 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."<ref>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.</ref>
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Another important piece of subtext lurking within ''Wythe's Reports'' are 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 before the bench. 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 several of Wythe's decisions. Wythe and Pendleton worked together on some projects, but by the end of their lives, Wythe harbored deep resentment towards Pendleton. The entire ''Reports'' are, to a certain extent, a book-long polemic against the Virginia Supreme Court and its president. Wythepedia's article on [[Edmund Pendleton]] has more information on these two legal giants' rivalry.
  
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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.<ref>Kearley, "From Rome to the Restatement", 58.</ref> 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.<ref>John Bouvier, rev. by Francis Rawle, "Will", ''Bouvier's Law Dictionary'' (Kansas City, MO: Vernon Law Book Co., 8th ed. 1914).</ref> 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.<ref>Bryan A. Garner, ed., "Will (2)", ''Black's Law Dictionary'' (St. Paul, MN: Thomson Reuters, 10th ed. 2014): 1833.</ref>
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Examining Wythe's decisions and his commentaries, the reader should notice that Wythe sometimes calls upon Roman law principles (he cites the ''Corpus Juris Civilis'' twenty-one times), and that he believed Virginia courts should not be beholden to English common law precedent. During the United States' early days, while ill feelings towards England and good feelings towards France were high, there may have been a reasonable chance of European-style civil law replacing English common law.<ref>Timothy G. Kearley, "From Rome to the Restatement", ''Law Library Journal'' 108(1) (Winter 2016): 60.</ref> In several decisions, Wythe warns of the dangers of blindly following English precedent.<ref>''See, e.g., [[Field v. Harrison]], [[Devisme v. Martin]], [[Aylett v. Aylett]].''</ref> In the end, though, tradition prevailed, and Virginia courts followed the English common-law mold. Frequently, when Wythe tried to create an equitable solution that avoided English precedent, Virginia's Supreme Court cited that precedent when they reversed him, undoubtedly adding to Wythe's ill will towards that court.  
  
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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.<ref>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.</ref> 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.
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''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. Wythepedia is proud to make them available, and we hope you find our case summaries useful.
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''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.<ref>George Holt, "George Wythe: Early Modern Judge", ''Alabama Law Review'' 58 (2007): 1024.</ref> 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. 
 
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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.
 
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Wythe's Reports give the modern reader a peek into one of the great legal minds of the United States's early days. They are not just a recitation of the cases that came before the Virginia High Court of Chancery; they are an expression of Wythe's legal theories, and a snapshot of life in Virginia during Wythe's time. Wythepedia has created summaries of the cases in Wythe's Reports to bring Wythe's commentaries on the law to a new generation, both in the legal world and outside it. We hope you find it useful.
 
 
==References==
 
==References==
 
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Revision as of 16:09, 6 April 2017


Americans' fascination with the Founding Fathers seems to wax and wane as time passes. Washington and Jefferson are always present in the popular mind along with high-profile figures from other eras: Lincoln, FDR, Reagan, and so on. Many other Founders linger in relative obscurity unless a well-made work of art pulls them into the spotlight. Not that long ago, asking the average modern American about Alexander Hamilton would likely get a mumbled reply about the ten-dollar bill. After Lin-Manuel Miranda's musical, Hamilton is at the forefront of our minds. One of the more obscure Founders is George Wythe, the College of William & Mary's first law professor. Today, if anyone encounters Wythe, it is usually as a supporting character in other Founders' stories: as mentor, teacher, and friend to Jefferson; or as a committee chair calling for Virginia to ratify the U.S. Constitution.

Wythe, however, was much more than a bit player in the United States's early days. As a professor, he imparted the principles of citizenship, leadership, and the law to leading figures in the fledgling United States and in the Commonwealth of Virginia. As a judge and an attorney, he presented innovative legal concepts that would help shape the course of American jurisprudence. Wythe was "one of the few Americans of the Revolutinary era who understood the law profoundly, both by experience and by study,"[1] and "a man widely venerated for his integrity."[2] Wythe valued his integrity, even if it meant resisting popular public opinion and risking long-term antipathy from Virginia's elite class.[3] Why do Americans not know more about this professor (first in the United States), judge, delegate to the Second Continental Congress, and signer of the Declaration of Independence?

Part of the issue may be a lack of documentation. Researchers investigating many of the other Founders have volumes upon volumes of papers at their disposal. Wythe, on the other hand, was not so generous. 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.[4] In the early 19th century, state printer Thomas Ritchie obtained the notes Wythe made as William & Mary's Professor of Law and Police, and considered publishing them. Virginia Governor John Tyler, Sr., 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.[5] 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.

We may not have many of Wythe's personal notes, but we do have some sources that can provide insight into his thinking and his jurisprudence. The most important is the collection of decisions he handed while sitting on the bench of Virginia's High Court of Chancery. Wythe compiled a book of these cases, now known as Wythe's Reports.[6] Several decades after Wythe died, Benjamin Blake Minor edited a second edition of the Reports that added some more decisions Wythe had arranged to be published after the first edition came out.[7]

Wythe's Reports contain cases that Wythe heard as Virginia's High Chancellor, the judge who sat on the commonwealth's High Court of Chancery. The High Court of Chancery was 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 soultion when the common law outcome would not provide proper justice. For example, if Person A bought a painting from Person B the day before the painter died and the painting's value tripled, the common-law remedy (probably requiring Person B to refund the purchase price) would not properly compensate Person A if Person B changed their mind and kept the painting. In this case, equity would give Person A the remedy of specific performance: Person B would have to give Person A the painting. In the early days of the United States, many states had separate courts to hear equity cases, such as Wythe's High Court of Chancery. These days, in almost all states, the same court handles equitable and legal remedies.[8] Therefore, the cases in Wythe's Reports involve equity, not the common law. As a result, many of the cases in the Reports involve similar topics. Property and inheritance disputes compose the vast majority of the decisions. Wythepedia has created pages for each of the decisions in the Reports; each page summarizes the case and its background, and explains references to sources that Wythe makes in the cases.

Wythe, however, did not keep the limited scope of the contents prevent him from making his Reports a commentary on the state of jurisprudence in his country. We can think of Wythe's Reports as his version of a casebook, the textbooks that modern law students are familiar with. Just like 21st-century casebooks, Wythe excerpts and summarizes the court's decisions, sometimes including subsequent appeals to other courts, then comments on them. Wythe hopes that the reader, by reading Wythe's commentaries on the courts' decisions, will reach a better understanding of the law as it was in Virginia and how Wythe thought it should be.

Wythe expected much of his students, and his Reports demands a lot from its reader. Wythepedia articles on Wythe's cases include notes and links to useful articles to help provide background and to explain Wythe's references that may be difficult for the modern reader. 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. Wythe had no problem with modifying those classics to suit his purpose. Such references increase in frequency in opinions where Wythe believes Virginia law will deal a great injustice to a party.[9] Quotes were not always indicated; Wythe frequently expected the reader to pick up on these references. Sometimes, Wythe adjusted the original Latin quotation to better fit his style.[10] At least once, in Goodall v. Bullock, Wythe extracted a Livy quote out of context to support the flip side of Livy's original argument. Wythepedia's article on Wythe's Greek and Latin Classics lists resources for further research on Wythe's use of these works.

The 21st-century reader of Wythe's Reports must also contend with shorthand references and terms of art that would be familiar to Wythe's legal contemporaries, but have since vanished from use. Someone reading Goodall v. Bullock will puzzle over what it means to "return the execution".[11] If a person wanted to refer to some of the books Wythe cited, they might need to do some detective work first. An 18th-century Virginia lawyer might know that Wythe's reference in Turpin v. Turpin to "the book called, law of devises and revocations" meant Gilbert's Law of Devises, Revocations, and Last Wills; most 21st-century lawyers will not.

Wythe frequently omitted procedural history -- an explanation of how the case arrived in his court. He was also prone to leaving out facts that he did not believe were relevant to the point he was trying to make in discussing the case. If a Wythe decision was appealed to the Virginia Supreme Court, the Supreme Court's opinion would frequently present a better discussion of how the case came to the High Court of Chancery, what the facts of the case were, and sometimes even what happened in the High Court of Chancery, than Wythe's own decision.[12]

Properly understanding Wythe's decisions means knowing their historical context. Many of the cases Wythe heard involved property, probate, and contract disputes, which were influenced by events that were familiar to educated people in Wythe's day but are esoteric history to modern Americans. Wythepedia includes several articles to fill in the background behind a number of these decisions. Our article on Land Disputes in Western Virginia explains many of the cases Wythe heard involving real estate. Contract arguments in the post-Revolutionary era often centered around the instability of Virginia's economy before, during, and after the war; Virginia Hyperinflation and Debt explains. Several of the property and probate cases illustrated the poor legal position Virginian women found themselves in; Women’s Legal Rights in Wythe’s Time describes their situation.

Another important piece of subtext lurking within Wythe's Reports are 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 before the bench. 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 several of Wythe's decisions. Wythe and Pendleton worked together on some projects, but by the end of their lives, Wythe harbored deep resentment towards Pendleton. The entire Reports are, to a certain extent, a book-long polemic against the Virginia Supreme Court and its president. Wythepedia's article on Edmund Pendleton has more information on these two legal giants' rivalry.

Examining Wythe's decisions and his commentaries, the reader should notice that Wythe sometimes calls upon Roman law principles (he cites the Corpus Juris Civilis twenty-one times), and that he believed Virginia courts should not be beholden to English common law precedent. During the United States' early days, while ill feelings towards England and good feelings towards France were high, there may have been a reasonable chance of European-style civil law replacing English common law.[13] In several decisions, Wythe warns of the dangers of blindly following English precedent.[14] In the end, though, tradition prevailed, and Virginia courts followed the English common-law mold. Frequently, when Wythe tried to create an equitable solution that avoided English precedent, Virginia's Supreme Court cited that precedent when they reversed him, undoubtedly adding to Wythe's ill will towards that court.

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. Wythepedia is proud to make them available, and we hope you find our case summaries useful.

References

  1. ↑ Robert B. Kirtland, George Wythe: Lawyer, Revolutionary, Judge (New York: Garland Publishing, 1986): 14.
  2. ↑ Lynne Cheney, James Madison: A Life Reconsidered (New York: Viking, 2014): 176.
  3. ↑ Wythe Holt, "George Wythe: Early Modern Judge", Alabama Law Review 58 (2007): 1017-1024.
  4. ↑ Kirtland, 5-6.
  5. ↑ Letter from Thomas Jefferson to Gov. John Tyler, Sr., Nov. 25, 1810.
  6. ↑ George Wythe, Decisions of Cases in Virginia by the High Court of Chancery (Richmond: Printed by Thomas Nicolson, 1795).
  7. ↑ 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).
  8. ↑ The article Howard L. Oleck, "Historical Nature of Equity Jurisprudence", Fordham Law Review 20 (1951): 23 has a good description of the history of courts of equity in the U.S. Samuel L. Bray, "The System of Equitable Remedies", UCLA L. Rev. 63 (2016): 530 summarizes the state of equity in American courts today.
  9. ↑ See, e.g., Wilkins v. Taylor, Aylett v. Aylett, Ross v. Pleasants.
  10. ↑ Richard J. Hoffman, "Classics in the Courts of the United States, 1790-1800," American Journal of Legal History 22 (1978): 59.
  11. ↑ This referred to part of the process a sheriff (or his deputies) went through to deliver a writ issued by the court. The sheriff returned the execution when they returned the writ to the court that issued it along with notations of what actions the sheriff had taken using the writ's power.
  12. ↑ See, e.g., Hoomes v. Kuhn.
  13. ↑ Timothy G. Kearley, "From Rome to the Restatement", Law Library Journal 108(1) (Winter 2016): 60.
  14. ↑ See, e.g., Field v. Harrison, Devisme v. Martin, Aylett v. Aylett.
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