"The Supreme Court of Appeals of Virginia"

Illustration of George Wythe from The Green Bag 5, no. 7 (July 1893), p. 315.

"The Supreme Court of Appeals of Virginia" was an article by S.S.P. Patteson, published in in two parts in concurring issues of The Green Bag in July and August of 1893. The first part gives a general overview of the early Virginia judiciary, with biographies of Edmund Pendleton, George Wythe, John Blair, Peter Lyons, John Tyler, Sr., James Mercer, Henry Tazewell, Richard Parker, Spencer Roane, St. George Tucker, and Henry St. George Tucker, Francis T. Brooke, and William H. Cabell.

Article text, July 1893

THE SUPREME COURT OF APPEALS OF VIRGINIA.
I.
By S. S. P. Patteson, of the Richmond, Va., Bar.

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A case of the gravest significance soon came before the court. It was one of the most important ever decided by any tribunal. There was no precedent for the judges to follow.¹ It was decided in November, 1782, and is styled Commonwealth v. Caton, et al. 4 Call, p. 5. John Caton, Joshua Hopkins, and John Lamb were condemned for treason. They were tried and convicted in the Gen-

¹ Bradlaugh v. Gossett, 12 Q. B. D. 280.

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eral Court, and appealed on the ground that they had been pardoned, and that they had been refused the benefit of their pardon. The governor had no right to grant a pardon in cases of treason; but he was authorized to suspend sentence" until the meeting of the General Assembly, who shall determine whether such person or persons are proper objects of mercy or not, and order accordingly." The House of Delegates, by resolution of June 18, 1782, pardoned the prisoners, but the Senate refused to concur. The Attorney-General on behalf of the Commonwealth denied the validity of the pardon, because the Senate had so refused its assent to the action of the lower branch of the legislature.

The question then came up squarely: Was this a constitutional pardon? All of the judges united in the opinion that the act of the House of Delegates was unconstitutional. Wythe and Pendleton both delivered opinions. Said Wythe, one of the greatest judges who ever sat on the bench in Virginia: —

"I have heard of an English chancellor who said, and it was nobly said, that it was his duty to protect the rights of the subject against the encroachments of the crown; and that he would do it at every hazard. But if it was his duty to protect a solitary individual against the rapacity of the sovereign, surely it is equally mine to protect one branch of the legislature, and consequently the whole community, against the usurpations of the other; and whenever the proper occasion occurs, I shall feel the duty, and fearlessly perform it. Whenever traitors shall be fairly convicted by the verdict of their peers, before the competent tribunal, if one branch of the legislature, without the concurrence of the other, shall attempt to rescue the offenders from the sentence of the law, I shall not hesitate, sitting in this place, to say to the General Court, Fiat justitia mat coslum; and, to the usurping branch of the legislature, 'You attempt worse than a vain thing, for although you cannot succeed you set an example which may convulse society to its centre.' Nay, more, if the whole legislature — an event to be deprecated — should attempt to overleap the bounds prescribed to them by the people, I, in administering the public justice of the country, will meet the united powers at my seat in this tribunal; and pointing to the Constitution, will say to them, 'Here is the limit of your authority, and hither shall you go, but no farther.'"

Virginia had completely dissolved her connection with Great Britain and established a constitution for her own government; and President Lincoln was mistaken in stating, in his message of July 4, 1861, that not one of the States "ever had a State Constitution independent of the Union." The Constitution under which the famous decision was rendered was "unanimously adopted" on the 29th of June, 1776. Mason's Bill of Rights had been adopted with equal unanimity on the 12th of June. The other States declared themselves independent after the Declaration of Independence. Article III. of that Constitution provided that "the Legislative, Executive, and Judiciary departments shall be separate and distinct, so that neither exercise the powers properly belonging to the other." That was all the guide these path-breaking judges had to follow.

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George Wythe was born in Elizabeth City, County Virginia, in 1726. His mother was a Miss Keith, daughter of a Quaker of fortune and education who came over from Great Britain and settled in the town of Hampton, in the year 1690. His father died intestate, leaving his wife and three children a good estate. Under the law of primogeniture, his elder brother fell heir to the estate. But his devoted and clever mother educated him herself. Besides English she was able to teach him the rudiments of Latin and Greek. Whatever may have been the real cause, his early years were spent at home. His literary advantages were thus limited; but his mother's influence implanted in his character the seeds of strength and uprightness for which she is said to have been noted. With no other educational advantages he was placed in the office of his uncle-in-law, a well-known lawyer of Prince George County, at the commencement of his studies for the bar. He had much office drudgery to perform, and made very slow progress. He left the office, and for about two years was a hard student.

A short time before he attained his majority his mother and elder brother died. As soon as he came into possession of the estate, he became very dissipated, going into all

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orts of society, and living in a very reckless way generally.

The old city of Williamsburg possessed many attractions; and as he had the means, as the saying then was, he "lived like a gentleman." At the age of thirty, realizing that his resources were about gone, he suddenly stopped this career, never to resume it. He married a Miss Lewis about this time; and his industry, learning, and eloquence soon secured him a prominent place at the bar. He was a man of great self-control, and used to warn young men, by referring them to his own idle career in early life. He was admitted to the bar in Williamsburg in 1756. A short time afterward Thomas Jefferson began his studies at William and Mary College, and through the influence of Dr. Small was taken under the instruction of Mr. Wythe. Jefferson himself tells of the fine influence he had upon his life. "Mr. Wythe," said he, "continued to be my faithful and beloved mentor in youth, and my most affectionate friend through life. In 1767 he led me into the practice of the law, at the bar of the General Court, at which I continued till the Revolution shut up the courts of Justice."

While a member of the House of Burgesses, Wythe early and warmly espoused the cause of the colony in her contention with the mother country; but he opposed as unreasonable and inexpedient the famous resolutions of Patrick Henry concerning the Stamp Act in May, 1765. But Henry's fiery eloquence got the resolutions through by a majority of one vote. We are all too familiar with the splendid fight Virginia made in the thrilling scenes immediately preceding the Revolution and during that memorable period to recount them here. In that great struggle, says Massachusetts' impartial and eloquent historian George Bancroft,¹ "Virginia rose with as much unanimity as Connecticut or Massachusetts, and with a more commanding resolution." In 1775 Wythe put on his hunting-shirt, joined the volunteers, shouldered a musket, and participated in the military parades in Williamsburg during the latter part of Lord Dunmore's administration. His good sense, however, soon made him realize that he could be more useful to the State in a civic position; so he abandoned the army. He had great contempt for Lord Dunmore, the royal governor of the colony.

One day in the General Court over which Governor Dunmore presided, a case came up in which Wythe and Nicholas appeared on one side, and George Mason and Edmund Pendleton on the other. Mr. Pendleton, Wythe's great rival, when the case was called, asked for a continuance, on the ground of the absence of his associate George Mason. Lord Dunmore indelicately said to Mr. Pendleton, "Go on, sir, for you will be a match for both of the counsel on the other side." "With your Lordship's assistance," retorted Wythe sarcastically, at the same time bowing

¹ Hist. U. S., vol. viii. p. 375.

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politely, greatly to the amusement of the spectators. He was a delegate to the Continental Congress, and signed the Declaration of Independence drawn by his former pupil. Wythe, Jefferson, and Pendleton took a leading part in the revision of the laws made necessary by the change of government, the special part undertaken by Wythe being the British Statutes from the fourth year of James I. In the year 1777 he was appointed one of the three Judges of the High Court of Chancery, and on the reorganization of that court in 1788, its sole Chancellor. With his services as Chancellor Wythe, which were highly honorable and useful to the State, we have nothing to do: nor is there space to tell how well he discharged his duties as professor of law for eight years at William and Mary. He was an earnest advocate of the adoption of the Federal Constitution. In the very important case, which excited a great deal of comment at the time, decided by Chancellor Wythe in the High Court of Chancery of Page v. Pendleton, Wythe's Reports, p. 211, the court held that the right to money due an enemy cannot be confiscated. The Supreme Court of the United States in Ware v. Hylton, 3 Dall, p. 266, refers to the first decision as authority; and that court finally reached the same opinion as had Virginia's great and upright Chancellor three years before. Every Virginia lawyer knows Wythe as Chancellor Wythe, and not as Judge; and if any man doubts his learning and integrity, let him refer to Wythe's Reports (1 vol.), which have recently gone through a second edition. He has the great honor of being the only State Court Judge in Virginia who has reported his own decisions.

Wythe was fearlessly honest, both as lawyer and judge. John Randolph said of him that "he lived in the world without being of the world; that he was a mere incarnation of justice, — that his judgments were all as between A and B; for he knew nobody, but went into court, as Astræa was supposed to come down from heaven, exempt from all human bias." His learning was extensive, and he was in the habit of putting curious references to the rules of logic and mathematics in his decrees; and some of them fairly bristle with classical allusions. Many of them are very funny. He rendered a decree in May, 1804, expounding the will of Patrick Henry. After quoting the parable in St. Matthew, ch. xx. he says: "The land was a gift, not naturally or morally to be retributed or countervaled by price, by pounds or dollars, and their fractional parts, but meriting an entirely different remuneration; namely, the effusion of a grateful mind, which owing owes not, but still pays, at once indebted and discharged." In the above quotation the spelling has been modernized.

He was married twice, but had no children who survived him. His death was a very sad one, he being poisoned by his greatnephew George Wythe Swinney, who would have been benefited by his will; but Swinney's crime was discovered in time to change it, — which was done, greatly to the satisfaction of the public. Swinney was not hanged, but escaped, because the circumstantial evidence was not sufficient to convict.

Another very singular occurrence at the end of this distinguished man's career is the melancholy fact that no one knows where he was buried, though his funeral was a public one in the city of Richmond. The Virginia State Bar Association now has under consideration the matter of erecting some sort of monument to his memory.

He was the preceptor of two Presidents and one Chief-Justice of the United States.

Henry Clay, who first knew him in his sixteenth year, was engaged by the Chancellor as his amanuensis, because from gout or rheumatism in his right hand he could scarcely write his name. Mr. Clay says: —

"Upon his dictation, I wrote, I believe, all of the reports of cases which it is now possible to publish. I remember that it cost me a great deal of labor, not understanding a single Greek character, to

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write some citations from Greek authors, which he wished inserted in copies of his reports sent to Mr. Jefferson, Mr. Samuel Adams of Boston, and to one or two other persons."

An amusing story is told of the venerable Chancellor and Bushrod Washington, then practising law in Richmond, afterwards Mr. Justice Washington of the United States Supreme Court. The story too illustrates how hard it was for Virginians to accustom themselves to the rigid rules of mercantile life. Mr. Washington called on the Chancellor with a bill of injunction, in behalf of General, to restrain the collection of a debt, on the ground that the creditors had agreed to await the convenience of General — for the payment of the debt, and that it was not then convenient to pay it. The Chancellor smiled and said, "Do you think, sir, that I ought to grant this injunction?" We are glad to know that Mr. Washington blushed, and retired without argument.

We may truly say, as did the Richmond "Enquirer" of June 10, 1806: "Kings may require mausoleums to consecrate their memory; saints may claim the privilege of canonization; but the venerable George Wythe needs no other monument than the services rendered to his country."

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