The Virginia Convention of 1776

Hugh Blair Grigsby, The Virginia Convention of 1776: A Discourse Delivered Before the Virginia Alpha of the Phi Betta Kappa Society, in the Chapel of the William and Mary College, in the City of Williamsburg, on the Afternoon of July the 3rd, 1855, (Richmond, VA: J.W. Randolph, 1855), 119-130.

Chapter text

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In looking over the Convention one noble head was seen, which might well attract the observation of every admirer of genius and worth, and especially of every lover of this institution. It was the head of a man who was the delegate of this city in the body, and though represented by his substitute in the earlier part of its session,† appeared before its close, and bore an honorable part in its proceedings. He had been a student of this College, its repre-

† Whenever a member of the various Conventions was appointed a delegate to Congress, he did not vacate his seat, which was filled during his absence by a substitute chosen by the people, who withdrew on his return. In the Convention of December 1775 the substitute of Wythe was Joseph Prentis. In the present Convention his substitute was Edmund Randolph. George Gilmer was the substitute of Thomas Jefferson. On the adoption of the Constitution no member of Congress, not even the Treasurer who had held a seat in the House of Burgesses for a hundred and sixty years, could hold a seat in either house of the General Assembly. As early as 1758 Wythe represented William and Mary in the House of Burgesses.

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GEORGE WYTHE.

sentative eighteen years before in the House of Burgesses, one of its official visitors, and subsequently became one its of most distinguished professors, had long held the foremost rank in the House of Burgesses of which he had been clerk, and at the bar of the General Court, and had borne a capital part through all the stages of that contest which was now to be settled by the sword. It is needless to say that such characteristics met in one man only, and that man was George Wythe. He was in the fiftieth year of his age. He may be said to have inherited a literary turn, as his maternal ancestor Keith, who had emigrated to the colony toward the latter part of the previous century, had devoted much of his time to letters, and had recorded his essays in a folio volume seen by Call, which may still be extant, and which would exhibit some curious specimens of our early literature.† His paternal ancestor, Thomas Wythe, as early as 1718, was a member of the House of Burgesses, in which he represented for many years the county of Elizabeth City, where in 1726 George Wythe was born. He was the second son, and it is reported that, having lost his father in infancy, he was taught Latin by his mother, and even Greek; and it is not improbable that a tender mother, anxious for the progress of her orphan child, adopted a plan which had long been recommended by Locke in his tract on education, (which, by the way, was better known then than now,) and may occasionally have held a translation in her hand while her boy was toying with the original; but that she or any one else ever seriously taught him Latin or Greek in early life is out of the question; for, at a much later period, perhaps in middle life, certainly when his hand-writing was matured, and he was studying the Iliad at a time when the English of all Greek words could be reached only through the Latin, his manuscripts still extant show that he had not advanced far enough to spell the most common Latin words correctly. He served his apprenticeship to the law under his uncle John Lewis of Prince George; but, coming into the possession of a respectable estate by the death of his elder brother and of his mother, he led a careless life, and wasted in idleness some years of his youth—precious years, the loss of which he deplored to his dying day. All his substantial acquisitions were the work of after life. The intimate friend of Fau-

* Call probably saw the book in possession of Mr. Wythe. As Major Duval was the executor of Wythe, it is possible his executor may be able to trace it.

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quier and Small, he became enamored of that learning which imparted to their conversation its richness and beauty; and, as he saw that classical quotation was the countersign not only of scholars but of intelligent and well-bred men abroad, he resolved to repair the defects of his early education. That he ultimately attained to a respectable knowledge of Latin and Greek is certain; and his warmest admirers may fairly concede that he did not reach that critical skill in the learned tongues which is rarely compassed by those who slight them in youth. But his literary accomplishments, great in themselves, were yet greater by a comparison with those of his contemporaries; and he was able to draw from the inexhaustible sources of ancient eloquence and poetry those pleasures which were the pride of his manhood and the delight of his old age. Nor was his eminent merit founded on his mere literary acquisitions. In the solid learning of the law he stood, with the exception of Thomson Mason, almost alone. As a speaker he was always able, often most impressive, and at times even eloquent. His preparations were made with conscientious care, and he was most successful in presenting his case in its best aspect; but he sometimes lost under the cross-fire of skillful opponents his self-possession in reply, and not unfrequently failed to rally until the day was lost. But the crowning graces of this good man were his personal independence, which, in a condition of worldly affairs barely removed from want,* was unassailable by fear or favor, his love of country, which, nurtured by his contemplations of classic antiquity, knew neither limit nor compromise, and the unblemished purity and modesty of his character. That miserable fear of risking popularity on any great occasion, which, like a spectre, haunts the daily as well as the nightly visions of the modern politician, never crossed his mind. He was one of the earliest and boldest defenders of the rights of the colonies in the House of Burgesses of which he had been a member as early as 1758; yet, while he drew during the session of 1764 the famous memorial to the House of Commons in terms so strong as to excite alarm, and which were pruned down by his more cautious compeers, he opposed the resolutions of Henry against the stamp

* Mr. Wythe lost many of his most valuable negroes during the Revolution, and apportioned half of his remaining estate among his relations. His salary as sole chancellor of Virginia was long only three hundred pounds, Virginia currency, and his official duties forced him to resign in 1789 his professorship in William and Mary and to reside in the expensive city of Richmond.

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act the year following on the ground assumed by Pendleton and others that the petitions of the previous year had not yet had sufficient time to work their effect on the minds of the British people, and that it was the true policy of the colony to put the ministry as far as possible in the wrong. Of all the learned lawyers of the colony he alone upheld in its utmost extent the view of the relation of the colonies with Great Britain which had been maintained by Mr. Jefferson in his Summary View. Although he opposed the resolutions of Henry for putting the colonies into a posture of defence, which were adopted by the March Convention of 1775, he approved the more efficient scheme of Col. Nicholas. A thread of his quaker descent might be clearly traced throughout life in the general contexture of his character, but his patriotism was of too bold a stamp to shrink from the dangers of the field.* Hence he was among the first to join a volunteer corps with a musket on his shoulder and without a commission in his pocket. To defend his country was so paramount a duty in his eyes that mere rank in an army no more entered his thoughts than the relative position of his seat in the House of Burgesses or at the communion table. He was returned by the city of Williamsburg to the December Convention of 1775; but, as he was absent from the city in attendance on Congress, to a seat in which body he had been chosen the August previous, he was represented by Joseph Prentis. In June 1776 he strenuously supported on the floor of Congress the resolution introduced by the Virginia delegation declaratory of independence, and affixed his name—where it will be read forever—on the immortal declaration of the Fourth of July. It has been observed that he was absent during the greater part of the session of the Convention now sitting; but he was present near the close, and was appointed one of a committee of four to prepare the devices for a seal of the Commonwealth, which was done and was approved of by the Convention.†

* His maternal grandfather Keith was a quaker.

† As Mr. Wythe bore an active part in Congress in the debate on the resolution declaring independence, and signed the declaration of independence of the Fourth of July, it may be proper to show that he was present in the Virginia Convention sitting at the same time. The journal of the Convention shows that he was appointed on the first of July on the committee to prepare the seal, and "was added to the committee to bring in an ordinance for punishing the enemies of America," an act to be instantly performed. Now, as a member is never appointed to a committee during his absence, and certainly never "added" to a committee already existing unless he were personally present, he must have taken his seat in the body. He could not then have signed the declaration of

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Of his subsequent career as the Speaker of the House of Delegates; as one of the committee of Revisers; as a professor of law in this college, gathering the gifted youth of his beloved state under the shadow of his wing; as a judge of the High Court of Chancery and necessarily a judge of the first Court of Appeals, the duties of which office he discharged with eminent ability and with a spirit of independence which placed him foremost in pronouncing for the first time under the constitution that an act of Assembly in conflict with that instrument is null and void;* as sole chancellor, the duties of which office he discharged until the time of his death in June 1806, with equal ability, with unwearied industry, and with general applause, albeit one of his decisions, that memorable one on the validity of the British debts, ran counter to a public prejudice almost universal; as a member of the Convention which formed the federal constitution and of the Convention which ratified that instrument in behalf of this Commonwealth; as a sage, diffusing around him a taste for philosophy and letters, and instilling into the minds of his pupils those principles which impelled them to imitate his virtues and even to eclipse the splendor of his fame;† and of his mournful death; it is not our purpose to speak at large at present. In respect of him, however, it is just to say, that in a course of fifty years uninterrupted official service, there was no pause in the public affection. While the eloquent Richard Henry Lee and the venerable Richard Bland, assailed by personal enemies, sought in person from the Convention or the Assembly an inquisition into their conduct, (which resulted in their honorable acquittal); while Harrison and Braxton, absent in the public service, were harshly superseded in Congress by an ungenerous manoeuvre‡ made for the nonce, the

independence on the fourth of July when it was signed on paper. but probably signed it as did Richard Henry Lee on the second of August when it was engrossed on parchment and signed by the members. R. H. Lee, who offered in Congress tile resolution of independence. and who sustained it in debate, was also present on the 1st of July in that Convention, and was also appointed on the committee to prepare the seal. It is now well known that some of the signatures to the Declaration were added some weeks and in one instance some months after the fourth of July.

* See his opinion in the case of the Commonweath vs. Caton [sic] and others, which, in the language of Call, " will ever be a memorial to his honor."

† What a patriotic cartoon—a School of Virginia greater than the School of Athens—might the brush of the Virginia artist depict in Wythe laying down the law in the midst of such pupils as Thomas Jefferson, James Monroe, John Marshall, James Innis, George Nicholas, Littleton Waller Tazewell, Henry Clay and John Wickham?

‡ By reducing the delegation from seven to five.

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breath of suspicion was never blown on the name of Wythe. He made no public confession of his religious faith; and, as Mr. Jefferson has observed respecting him that "that religion must be good which could produce a life of such exemplary virtue," there have been doubts of his belief in the Christian system; but these are at once and forever dispelled by the declarations of Mr. Munford, who stated, in his eulogy pronounced over the corpse of Wythe in the Hall of the House of Delegates, that prayers for the mercies of his Redeemer were among his most fervent and latest aspirations. Need I recall to this assembly sitting in a hall which has often resounded with the echoes of his youthful voice and in which in later years his familiar presence has so often been, the form and features of this illustrious man such as he was when he took his seat in the Convention of 1776? Shall I point to that slender form, not emaciated and bowed as with thirty additional years' arduous labor on the bench and in the closet it subsequently became, but still erect and active, that over-arching forehead with its wide, magnificent sweep, and those dark grey eyes that beamed beneath it, that Roman nose, those finely chiseled lips on which the flame of conscious inspiration seems yet to burn, that broad and well defined chin, all making up a profile which would be singled out of a thousand as the profile of a man whose heart was the home of all the gentle affections, but whose intellect owned the supremacy of duty alone? No, sir, it were an idle task. More than a hundred years have passed since he first appeared within these walls or received your honors, and yet, as his name is on every tongue, so his form is reflected in every eye, and his image enshrined in every heart. And let us believe and declare, that, when fresh generations a century hence shall celebrate, as we do now, the immortal names inscribed on the roll of William and Mary, the honors which they accord to the worth of George Wythe will be the fairest and fullest measure of their own.*

* Concerning Wythe consult a sketch of his life in Sanderson's Biography of the Signers of the Declaration of Independence, Mr. Jefferson's lettter [sic] to Sanderson and Mr. Jefferson's memoir of himself in the first volume of his writings, Mr. Clay's letter to B. B Minor esq. in the new edition of Wythe's Reports, and in the Va. Historical Register vol. V. Ifi2, his manuscripts in the Historical Society of Virginia, Munford's funeral oration in the Richmond Enquirer of the thirteenth and seventeenth of June 1806, Wirt's Life of Henry, Call's sketch in the fourth volume of his Reports, journals of the House of Burgesses, of Congress for 1775—'6, of the Conventions, and of the House of Delegates, and our histories of Virginia, especially Charles Campbell's Introduction; Carrington Memo-

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WYTHE AND PENDLETON COMPARED.

Such was the intimate connection for near half a century between Wythe and his great rival on the floor of the House of Burgesses, at the bar of the General Court, in the Conventions, in the House of Delegates, and in their respective courts of which each was for near thirty years the presiding justice, and in the public esteem, that the relation which they held toward each other forces itself upon the observer, and is indeed no unimportant part of the history of both. Pendleton was five years older than Wythe, was born poor, his father dying before he was born, had little or no instruction in his early years, and was placed in a clerk's office, the only sphere of improvement within his reach. Wythe, though he too lost his father in early life, was not destitute of means, and shared the supervision of a mother whose association with a father noted for his learning led her to appreciate the value of knowledge, and, if not to become the teacher of her son, to aid and encourage him in his studies. He also spent a term in this college, and with a view of studying law entered the office of an uncle who was engaged in an extensive practice. Thus far the advantages of fortune would seem to be on the side of Wythe; but these advantages he wantonly sacrificed, and in this sacrifice may be traced the distinctive traits of his future life. Pendleton, who had from his youth that elasticity of character which no imaginary burden could compress, and that instinctive sagacity in adjusting himself to his true position which in after-life stood him in such stead, devoted all his faculties to his employment, and with the fees derived from jobs beyond the routine of the desk purchased useful books which he studied closely. He saw at a glance that his only hope of distinction and wealth lay in success at the bar; for even the successorship of his master, however remote, at a time when the clerks of the secretary of the colony were billeted upon the various county offices, was wholly out of the question. A clerk's office at this day is no mean school of law, and the speeches of counsel

randa. Call and Allen make Wythe speaker of the Home of Burgesses, which he never was, that office having been filled long before Wythe was a member of the body up to the Revolution by two men only: Mr. Speaker Robinson, who held it for near twenty years until his death in 1765, when at the ensuing session in 1766 Peyton Randolph was elected over Col. R. Bland and held it until the house was superseded by the Conventions. As stated in the text, Mr. Wythe was sometime Clerk of the House. He was the Speaker of the House of Delegates in 1777. Should it be that he ever filled the chair of the House of Burgesses, it must have been pro tempore during Peyton Randolph's visit to England, which, however, is not probable.

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employed in affairs of real life are no mean substitutes for the lectures of professors; but, if such be the case at present, it was still more the case under the less complicated practice of the colonial system. It was almost impossible for a youth of quick parts, bent on his advancement in life, who had performed for seven years the duties of a clerk, devoting his leisure hours to the study of the law, and who had heard for so long a time the speeches of the leading counsel of the day, not to become expert in the ordinary business of the county court lawyer; and hence in the case of Pendleton, as at a later day in the case of Paul Carrington, there was hardly an interval between the procuring of a license and a heavy docket. With the increase of business came the strict study of the principles of each case; a study from which he was not to be diverted by the promptings of idleness, the blandishments of pleasure, or even the pursuits of literature. A book was sought only for the information touching the case in hand, and, when that object was obtained, it was laid aside. What was the result of necessity at first, became afterwards a habit and a pleasure, and when a volume of Burrow, containing the decisions of Lord Mansfield, appeared, he seized upon it with the zest with which a modern reader hailed a volume from the author of Waverley, or a work from the hand of Macauley; and he declared to Call in his latter days that he did not desire more pleasant reading. But it was for adjudicated cases only he sought in the books of the law. For its mere literature he had no respect; and it is probable that it never occurred to him to inquire whether Fleta was the name of a person or a thing, the name of the author of a book or the name of a book;* while Wythe had not only scanned the origin of the name, but had weighed in his mind the respective claims of the two prominent candidates for its authorship. From the County Courts Pendleton passed in due time to the General Court where his industry was quickened and his emulation excited by a competition with men thoroughly conversant with the science and the practice of the law which some of them had studied in the Temple. In this new school he not only acquired knowledge of the most useful kind, and, the greatest of all his acquisitions and for which he was forever afterwards distinguished, the readiness of making whatever 

* Blackstone quotes Fleta as if he were doubtful of the name. He sometimes uses the expression: Fleta says; and then again as the author of Fleta says.

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knowledge he possessed available on the instant. His intimacy with the ablest members of the House of Burgesses, which he entered early, gave a spur to his ambition, and he had not held his seat long before his acquaintance with current business and his ready and graceful elocution marked him out as one of the rising men of the day. Such was the man whom Wythe, reverting to his studies after a long truancy, was called on to encounter. From what has been said it could easily have been foreseen what the result of such an encounter would be. It has rarely happened that any man who engaged late in life in a learned profession, and certainly such a profession as the law, ever attained to the highest degree of excellence in all the requisites which ensure complete success. Wythe, whose early advantages were greater than those of Pendleton, had allowed the spring-time of life to pass unimproved, and when, as middle life approached, he grappled seriously with his studies, he had difficulties to surmount which would have obstructed altogether the course of ordinary men, and which his genius and application did not entirely overcome. General literature he had probably never altogether neglected, perhaps not even the literature of the law; but a knowledge of adjudicated cases, the subtleties of special pleading, and what may be called the habits of the bar, were to be learned by him, when these had been for years the exclusive meditation of Pendleton, who was five years his senior, and who from his twelfth year had never lost a day from the eager pursuit of his profession. Moreover, in the physical qualities not unessential to success at the bar, Pendleton not only excelled Wythe, but most of his contemporaries, for his person was of the first order of manly beauty, his voice clear and silver-toned and under perfect control, and his manners were so fascinating as to charm all who came in contact with him. These advantages Wythe did not share in an equal degree. Hence the only ground of success on which Wythe could build was to lay in a greater stock of legal knowledge than that possessed by Pendleton; for Pendleton, who had studied law rather as it was to be found in the cases than as a system, and may be said rather to have known a great deal of law than to have been a master of the science, approached nearer the character of a great advocate than of a great lawyer; and it was to this point the studies of Wythe were directed, all things considered, with wonderful success. That

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he more thoroughly mastered the learning of his profession than any of his contemporaries, excepting Thomson Mason, seems to be conceded; yet in his contests with Pendleton, though clad in the substantial armor of the law, he not only felt at times the point of his lance, and reeled from the shock, but was sometimes fairly rolled in the dust. As members of the bar and as politicians they shared equally the public esteem; yet it may appear singular that in the latter character they seem to have reversed their relative positions toward each other. Wythe might be supposed from his love of the weightier matters of the law to have been averse from change, and to favor a pacific policy; and Pendleton from his habit of regarding the law as a mere instrument for effecting his purposes might have been supposed to view changes in law and politics as matters of convenience; yet the reverse proved to be true. The first illustration of this difference may be drawn from the session of the House of Burgesses of 1764, when Wythe wrote the memorial to the Commons in a temper that would have suited a much later day; Pendleton was for modulating its tones to the diseased ear of a reckless House of Commons. When the precise relation of the colonies to Great Britain became the theme of discussion, Wythe boldly contended that the true relation was that • which Scotland held previous to the act of Union—a common king, but nought else in common, while Pendleton halted at what has been called the half-way house of John Dickinson. When the constitution took effect, both were members of the first House of Delegates, and were subsequently placed on the Committee of Revisors; and here their relative positions were signally reversed. Pendleton, the architect of his own fortune, clung with death-like pertinacity to the law of primogeniture and entails, and to an established church; Wythe saw at a glance the incompatibility of such institutions with a republican system, and advocated their immediate repeal. Both filled the chair of the House for a single session, and each won distinction as a presiding officer. On the organization of the new judiciary each was called to the highest seat in his respective court, and, although their decisions more than once smacked of their ancient warfare, were equally acceptable to the people. In the Virginia Convention called to discuss the federal constitution, of which body Pendleton was the president and Wythe the chairman of the Committee of the Whole during its sittings, both voted for the

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ratification of that instrument; and this vote is the only enigma in the life of Wythe. Pendleton was a man of the world, and transacted business as a thing to be done; Wythe was sometimes beguiled by the mode of doing it. Pendleton, who inherited nothing, brought his mind to bear on the game of life, and amassed a large fortune; Wythe, who inherited a handsome patrimony, died poor. Pendleton was strictly a man of talents, and regarded all knowledge merely as a means of pursuing his ends with success. Wythe was a man of genius, and loved knowledge for its own sake. To undertake the acquisition of the learned languages late in life was a heroic aim, from which Pendleton would have shrunk, unless a knowledge of them had been indispensable to the proper conduct of current business, but which Wythe embraced that he might enjoy at the fountain head those pleasures which, as they are the purest, so they are the most precious bequests of the genius of the ages that are past. Pendleton rarely read an English book beyond the range of the law in its ordinary or in its historical aspect. He had probably never seen the Fairy Queen or read a book of Paradise Lost. He would not have given the value of a dollar in Virginia currency, when that currency was at its lowest ebb,

"To call up him that left half-told


The story of Cambuscan bold."

He cared very little for stories at all, and still less, if less be possible, for the conclusion of a story of which he had not heard the beginning; and he would have sent Sappho and Aspasia to the workhouse with the emphatic admonition which the Earl of Wilton gave to the ejected nuns: Go, spin; you jades, go spin. Wythe had burrowed so deeply in the heaps of ancient literature—had dwelt so long on the ancient classics, some of them out of the common range, and on the writers of the Elizabethan and Cromwellian eras, that he could hardly refrain from giving a line of Horace the force of an act of Assembly, nor could forbear from quoting the authority of Aulus Gellius, that prince of tattlers, in a solemn judicial decision; and he caught the turns of expression of our old writers, and dressed his thoughts in a garb that Raleigh or Vane would have recognized as his daily wear. Hence, from opposite causes, neither of these great jurists ever attained to a graceful mastery of the English tongue. The style of Pendleton, as his letters and published

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writings show, was bald, inelegant, incorrect and often involved, and without spirit.* It was only under the excitement of debate that his words were combined with some degree of taste and elegance. The style of Wythe grew more quaint as he grew old, and, if more correct than Pendleton's, was not more grateful to modern ears. It is remarkable that neither of them ever reached the elegance which the casual productions of Patrick Henry's pen frequently exhibit. Both received the veneration of the people in a degree rarely accorded to the ermine in recent times; in the person of Wythe that veneration deepened into love. Both lived to the age of fourscore and lived in full harness;† Pendleton gathered to his fathers as a sheaf full ripe to the garners; Wythe perishing by a poisonous draught, mixed at his own fireside, and presented by a parricidal hand;—neither leaving a descendant; and both receiving all the honors which a grateful country could bestow upon the illustrious dead. For it is unquestionably the peculiar praise of these exalted patriots, that, during a term of fifty years' public service, they held office, not for their own sake, not for the sake of office, but for the sake of their country.‡

* His political writings are alluded to. The opinion of Wickham on the precision of his language in the revised bills drawn by him, and which was mainly technical, has already been quoted.

† Pendleton died at the age of eighty-two, Wythe at the age of eighty.

‡ Since the note on a preceding page was in type, I have ascertained from a letter of Wythe to Mr. Jefferson, dated July 27, 1776, which escaped my recollection at the moment, that Mr. W. appeared in the Convention after the constitution had been committed to the committee of the whole house. See Burk, IV, 151, Note.

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