An Introduction to Wythe's Reports

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," and "a man widely venerated for his integrity." Wythe valued his integrity, even if it meant resisting popular public opinion and risking long-term antipathy from Virginia's elite class. 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. 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. 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. 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.

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. 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. 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. 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". 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.

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. In several decisions, Wythe warns of the dangers of blindly following English precedent. 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.