Difference between revisions of "George Wythe the Colonial Briton"

"[[Media:HemphillGeorgeWytheTheColonialBriton1937.pdf|George Wythe the Colonial Briton]]" is a 1937 dissertation by [[William Edwin Hemphill|W. Edwin Hemphill]] (1912 &ndash; 1983), for a doctoral degree from the [http://www.virginia.edu/ University of Virginia].<ref>William Edwin Hemphill, "George Wythe the Colonial Briton: A Biographical Study of the Pre-Revolutionary Era in Virginia," PhD diss., University of Virginia, 1937. Used with permission.</ref> Hemphill was an archivist, historian, and editor, and contributed greatly to [[George Wythe]] scholarship, among his other historical pursuits. In 1933, he received a M.A. from [http://www.emory.edu/ Emory University,] with a [[George Wythe, America's First Law Professor|thesis also on George Wythe]]."<ref>Hemphill, "[[Media:HemphillGeorgeWytheAmericasFirstLawProfessor1933.pdf|George Wythe: America's First Law Professor and the Teacher of Jefferson, Marshall and Clay]]," master's thesis, Emory University, 1933.</ref>

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This dissertation had a remote and unwitting origin six full years ago. In the spring of 1931 Mr. Frank L. Jones, of New York City, Vice-President of the Equitable Life Assurance Society, sponsored among Hampden-Sydney College students an essay contest on Wythe. During the course of preparing for that competition a rather puerile paper, which contained not a single original fact or thought, it occurred to me that George Wythe had a good a claim as any of his contemporaries in the golden age of Virginia leadership to the title of the "Forgotten Man". That idea &mdash; itself little more original than the research which was its spawning-ground &mdash; has undergone no material amendment despite its more recent subjection to critical comparative examination. I still believe the thought centered upon Wythe by his score of biographical homilists and by the public to be far from commensurate with the nobility of his character and the value of his contributions to American institutions.

The complete biography remains something less than halftold. By measurements in bulk, approximately forty per cent of my notes have been utilized. More information is at hand to depict Wythe's career as a progressive American republican in his last thirty years than can be mustered to chronicle his role as a loyal Briton in the half century ending in 1775; and, as one would naturally suppose, the events of the latter half of his six decades in the public eye exceed in significance those of the earlier half. The crowning aspects of his services reached their climaxes after 1775. At that date he stood upon the threshold of his highest attainments in politics and statecraft; his developments as a pioneering teacher was yet to reach its zenith in his law classes at William and Mary College; and his long judicial duties had not even begun. In only one respect is this study note merely partial. Wythe's entire experience as an attorney at law falls within my chronological boundaries.

Acknowledgements to those who have signally aided me in one way or another are promoted by sincere gratitude. For the benefits of discussion and encouragement I am indebted particularly to four of the six living authors of published biographical sketches of Wythe: Dr. S. C. Mitchell, Professor of History in the University of Richmond; Dr. D. R. Anderson, President of Wesleyan College; Dr. Theodore S. Cox, Dean of the Marshall-Wythe School of Government and Citizenship in William and Mary College; and Mr. Allan D. Jones, of the Newport News bar. Mr. Oscar L. Shewmake, of the Richmond bar, who has delved deeply in Wythe lore without publishing his findings, gave me similarly the advantages of his conversation. I am indebted to Mrs. George Bryan, of Richmond, for a copy of the address made by her husband at the cornerstone ceremonies of the Wythe school building in that city. Dr. W. A. R. Goodwin, rector of the Bruton Parish Church in Williamsburg, father of the restoration first of the Wythe House there, then of all Williamsburg, was an invaluable counselor. Mrs. George P. Coleman, of Williamsburg, graciously gave me access to her extensive manuscripts of the Tucker family. Mr. David J. Mays, of the Richmond bar, shared with me a few items from his large collection of materials of Edmund Pendleton and John Taylor of Caroline. Among custodians of public depositories I am obligated for various favors especially to Mrs. Helen Bullock, Archivist Department of Research and Education, Colonial Williamsburg, Inc.; Dr. E. G. Swem, Librarian of William and Mary College; Dr. Julian P. Boyd, of the Pennsylvania Historical Society; Mr. Wilmer L. Hall, Librarian of the Virginia State Library; Dr. Max Farrand, Director of Research, Henry E. Huntingdon Library and Art Gallery; and Mr. Harry Clemons, Librarian of the University of Virginia. The Rosenbach Co., through Dr. A. S. W. Rosenbach in the New York office and Mr. Percy E. Lawler in its Philadelphia office, permitted me to transcribe the Wythe letters and documents in its possession; and the Thomas F. Madigan Co., through Mrs. Madigan in the New York office, granted leave to refer to one of its documents which contained Wythe's autograph. Dr. W. A. Montgomery, Professor of Latin in the University of Virginia, rendered help in the translation of the non-legal Latin quotations. To Mr. Frank L. Jones, Prof. Freeman H. Hart, of Hampden-Sydney College, and Mr. John L. Bruner, of the <u>Richmond News Leader</u>, I have been constantly grateful in my work on Wythe for an interest which six years has not decreased. Finally, I have many reasons to value the occasional guidance of Dr. T. P. Abernathy, under whose direction I have made this study. To it each of these friends has made some unique and appreciated contribution.

Some six of eight miles from the birthplace of [[George Wythe]] there occurred, on the last day of April, in the year 1607; the first peaceful meeting between aboriginal inhabitants of North America and permanent settlers of the race which gradually dispossessed them.

Anchors were dropped that day from the [[wikipedia:Susan Constant|<u>Sarah Constant</u>]], the [[wikipedia:Godspeed_(ship)|<u>Goodspeed</u>]], and the [[wikipedia:Discovery_(1602_ship)|<u>Discovery</u>]], in waters which their passengers named, with grateful and picturesque aptness, [[wikipedia:Old_Point_Comfort|Cape Comfort]].  [[wikipedia:John_Smith_(explorer)|Captain John Smith]], [[wikipedia:George_Percy|Captain George Percy]], and their fellows of the exploring party which was sent ashore were conducted a short distance inland and given a friendly reception in an Indian village of eighteen wigwams known as [[wikipedia:Kecoughtan,_Virginia|Kecoughtan]], meaning "great town". Perhaps this name was not as paradoxical as it seems, for legend has it that the populous Kecoughtans had been all but exterminated not many years before the arrival of the "palefaces" by some of the more western tribes of the [[wikipedia:Powhatan|Powhatan Confederacy]], who misunderstood a prophecy that their conquerors would come from the east and took precautions with characteristic directness to eliminate the most eastern menace which they could find.

by the settlers' inability to foresee the future, might well have ended at [[wikipedia:Kecoughtan,_Virginia|Kecoughtan's]] "Strawberry Bank", the fertile area adjoining [[wikipedia:Old_Point_Comfort|Cape Comfort]], between Hampton River and Mill Creek, whose few amicable natives found it quite easy to secure wild and domestic foods in bountiful quantities from nearby corn fields, forests, and waters. However, probably in fear of hostile raids by Spanish vessels (a threat which never materialized), the expedition pressed up the James River to an unhealthy and unproductive morass which it named [[wikipedia:Jamestown,_Virginia|Jamestown]], an island affording little better protection from Spaniards and Indians to counterbalance the great advantage of Kecoughtan as a salubrious and fruitful site. Thus during the next three years Kecoughtan served the cause of British colonization chiefly as a place at which Captain John Smith and others travelling to and fro in the James could stop over for lodging and feasting. During the summer of 1610 the Kecoughtans were driven away forever from the locality in mysterious reprisal for the murder of a white man by members of another tribe, and some of the colonists moved in from later depopulated Jamestown – on which fact the present city of Hampton bases its claim to the oldest continuous Englishspeaking settlement in the New World.¹

1. Lyon G. Tyler, <u>History of Hampton and Elizabeth City County, Virginia</u>, 5-17; Marion L. Starkey, <u>The First Plantation: a History of Hampton and Elizabeth City County, Virginia, 1607-1887</u>, 7-9.

Virginia which still retained its pagan and lacked a British name. Some of its people, according to an old chronicle, "in pious frame of mind, took a spite at [[wikipedia:Kecoughtan,_Virginia|Kecoughtan]] name and said a name so heathen should not be for a people so pious as we...." Thus the first General Assembly made this the subject of the sixth petition which it sent back to England; in the words of the chronicler, "they made their grudges to old King James, and so the King a new name found, for this fine section and all around".¹ In honor of [[wikipedia:Elizabeth_Stuart,_Queen_of_Bohemia|Princess Elizabeth]], daughter of [[wikipedia:James_VI_and_I|James I]], rather than of the late [[wikipedia:Elizabeth_I_of_England|Queen Elizabeth]], the eastern end of the peninsula between the James and York rivers was henceforth known as [[wikipedia:Elizabeth_City_(Virginia_Company)|Elizabeth City]], while the former "great town" of the Kecoughtans and its neighboring waters derived later from [[wikipedia:Henry_Wriothesley,_3rd_Earl_of_Southampton|Henry Wriothesley]], Earl of Southampton, the names Hampton, Hampton River, and Hampton Roads.² But "Kecoughtan" survived in local usage and various misspellings for at least a century, and even as late as 1700 this reminder of a pre-British era crept occasionally into the official papers.³

1. Quoted in Tyler, <u>History of Hampton</u>, 7.

2. Princess Elizabeth (d. 1662) was Queen of Bohemia, had married an Elector of the Palatine, and become the maternal grandmother of the Elector of Hanover who succeeded in the next century to the English throne as George I: Charles M. Long, <u>Virginia County Names: Two Hundred and Seventy Years of Virginia History</u>, 32-34. The Earl of Southhampton was President of the Virginia Company of London, 1620-1625: Tyler, <u>History of Hampton</u>, 14.

eight governmental units. As if it had not already sufficient claims to priority, during the following year, 1634/5,¹ Benjamin Syms endowed the first educational institution in the [[wikipedia:New_World|New World]], and in 1638 Thomas Eaton in a somewhat similar benefaction surpassed Syms' philanthropy. Through the [[wikipedia:Syms-Eaton_Academy|Syms Free School]] and the [[wikipedia:Syms-Eaton_Academy|Eaton Charity School]], whose doors were open for many a decade, [[wikipedia:Elizabeth_City_(Virginia_Company)|Elizabeth City]] antecedated slightly the notable legacy of [[wikipedia:John_Harvard_(clergyman)|John Harvard]].²

The steady influx of immigrants into the country increased its population before the close of the seventeenth century to about 800 people. Among them, fostered by an ideal location and by the best maritime facilities then available, a flourishing commercial life developed in conjunction

1. Until the British adoption in 1752 of the Gregorian calendar, a revision of the less accurate Julian calendar, the new year began among English peoples late in March. Thus, according to present reckoning, February 12, 1634, was actually in the year 1635. The generally current practice of making a double notation of years in the overlapping period (<u>e.g</u>., March 1, 1750/1) &mdash; in preference to the more antiquated method of signifying Old Style dates as March 1, 1750 (O.S.) &mdash; has been adopted throughout these pages.

2. Tyler, <u>History of Hampton</u>, 22-23; Starkey, First Plantation, 13. Governor William Berkeley, Virginia's counterpart of Charles II, was evidently quite ill-informed in one respect when he made his oft-quoted report in 1671, "But, I thank God, <u>there are no free schools</u> nor <u>printing</u> [in this colony] and I hope we shall not have [them] these hundred years; for <u>learning</u> has brought disobedience, and heresy, and sects into the world, and printing has divulged them, and libels against the best government. God keep us from both!": William Waller Hening, ed. <u>The Statutes at Large; being a Collection of All the Laws of Virginia ...</u>, II, 517. Here, as always in later pages, the italics are in the original. This collection will hereafter be cited as Hening, <u>Statutes</u>.

George Wythe's paternal ancestors seem to have held a recognized position among the aristocracy of [[wikipedia:Elizabeth_City_County,_Virginia|Elizabeth City County]]. Practically nothing is known on this side of the Atlantic of their English background, but the Wythes could hardly have represented the type of colonist typified by [[wikipedia:William Worlich|William Worlich]], who entered the county as an indentured servant but rose to one of its seats in the [[wikipedia:House_of_Burgesses|House of Burgesses]] and became the progenitor of one of its most honorable families.² The one scrap of information which is available to controvert the possibility of a lowly Wythe family status in British society is the fact that George Wythe used a book plate bearing a heraldic coat-of-arms &mdash; usually until the

1. This estimate is indicated by the census of 365 tithable persons there in 1693 and of 410 in 1698 (tithables included white men between the ages of 16 and 60 and all Negro men and women): Starkey, <u>First Plantation</u>, 17. In 1714 the number of tithables had risen to 610: <u>Virginia Magazine of History and Biography</u>, II, 4. The latter source will hereafter be cited as <u>Virginia Historical Magazine</u>. Two years later a traveler reported that Hampton, whose brisk business made it the center of the colony's trade, consisted of about 100 houses: Tyler, <u>History of Hampton</u>, 31.

The original Wythe immigrant, great-grandfather of George in a direct line of succession,² was [[Thomas Wythe]], whom for clarity's sake, since his sons for three generations also bore that name, it is perhaps best to call Thomas the First. He moved into [[wikipedia:Elizabeth_City_County,_Virginia|Elizabeth City County]] in or a few years before 1680,³ probably after [[wikipedia:Bacon's_Rebellion|Bacon's Rebellion]], the revolt in Virginia which preceded the [[wikipedia:American_Revolution|American Revolution]] by exactly a century. He acquired a considerable acreage near the northern side of the peninsula beside [[wikipedia:Back_River_(Virginia)|Back River]] and established there the family estate known as "Chesterville".⁴

2. A London bricklayer by the name of Simon With, who was probably not kin to the Elizabeth City Wythes, entered Virginia in 1623; and a Francis Wythe, also probably not related, resided somewhere in the colony in the 1670's: H. R. McIlwaine, ed., <u>Minutes of the Council and General Court of Colonial Virginia, 1622-1632, 1670-1676 ...</u>, 6, 64, 213, 405. In the neighboring counties of Warwick and York dwelt for generations, contemporaneous to those of Thomas Wythe's descendants, a Wythe family of some local consequence; but not tie of blood or acquaintance is known to have existed between them: William Carter Stubbs and Mrs. William Carter Stubbs, <u>Descendants of Mordecai Cooke ... and Thomas Booth ...</u>; Bishop William Meade, <u>Old Churches, Ministers and Families of Virginia</u>, I, 240; <u>William and Mary College Quarterly</u> (1st series), XIII, 175; Executive Journals of the Council of Colonial Virginia (Photostats), April 30, 1752, University of Virginia Library.

Early recognition came to the immigrant Wythe as one of the "best people in the community".¹ In 1680 he sat upon the bench of the monthly county court,² whose members held the title of justices of the peace and served as judges with jurisdiction over civil and criminal litigation. In this capacity, the county's highest local office, he determined <u>ex officio</u> the right and the wrong of his neighbors' petty disputes in the lesser magistrate's court.³ It is of interest in this connection to mention the fact that his precedent in this respect was followed, as later pages will show, by every male inhabitant of [[wikipedia:Elizabeth_City_County,_Virginia|Elizabeth City County]] who bore the name of Wythe. Moreover, Thomas the First was almost immediately elected a burgess to represent the county in the General Assembly, taking the usual oaths of office on June 9, 1680,⁴ and receiving 200 pounds of tobacco, the approved currency of that day, as his legislative salary.⁵ Thomas Wythe the First,

1. The elder of these, possibly named Constance, married John Tomer: <u>William and Mary College Quarterly</u> (1st series), II, 69. The other, whose name was Ann, married not later than 1680 William Mallory (<u>d. ca</u>. 1720), son of Capt. Roger Mallorry of New Kent County, who had settled in Elizabeth City County and was its outstanding tobacco planter; they had four children, Francis, William, Mary, and Ann: <u>ibid</u>., I, 196 <u>n</u>., II, 69; <u>Virginia Historical Magazine</u>, XII, 402, XIV, 215, 216, 219; Starkey, <u>First Plantation</u>, 26.

4. Tyler, <u>History of Hampton</u>, 27.

Thomas Wythe the Second, grandfather of George, was born abroad in 1670.³ Like his father, he attained the position of a justice of the peace for the county;⁴ and one report has it that he served as a municipal trustee of Hampton.⁵ Through his thrice-married wife Ann, the Wythes became connected with many of the prominent local families. Her father, John Sheppard, had been burgess for [[wikipedia:James_City_(Virginia_Company)|James City]] and [[wikipedia:Elizabeth_City_County,_Virginia|Elizabeth City]] for a number of terms in the middle of the century,⁶ and her brother, Baldwin, (d. 1697), was a justice of the latter county with Thomas Wythe the First;⁷ her first husband was a gentleman who went by the rather formidable name of Quintilian

7. Tyler, <u>History of Hampton</u>, 51.

1. <u>William and Mary College Quarterly</u> (1st series), II, 69, 208. Their son William Guthericke died before 1695, and their daughter Elizabeth married in 1700 Nicholas Curle, of another respectable Elizabeth City family: <u>ibid,</u>., V, 57. Elizabeth Guthericke Curle must have died ore many years, for Curle remarried before his death in 1714; his widow, the former Jane Wilson, had two later husbands, Capt. James Ricketts and Merritt Sweeney, both of whom were burgesses for the county: <u>ibid</u>., IX, 125-126.

of nearby "Errol" on Jack River,¹ sometime clerk of the county and for twenty-one years the honored rector of Elizabeth City Parish, who contested bitterly with his parishioners, the county court, and the colonial government in occasional squabbles.² Mrs. Wallace survived until her grandson, George Wythe, was fourteen years of age and bequeathed him a small legacy, signing her will with her mark in lieu of a signature.³

possessed by inheritance he added half-ownership of a waterfront in [[wikipedia:Hampton,_Virginia|Hampton]].¹ As early as 1699 he was esteemed enough locally to hold a county office.² Fifteen years later he was serving in the county court,³ and a few years later still an appointment came to him from [[wikipedia:Williamsburg,_Virginia|Williamsburg]] to be [[wikipedia:Elizabeth_City_County,_Virginia|Elizabeth City's]] sheriff.⁴ Even more positive testimony to his local eminence is to be found in his election as a representative of his native county in the General Assembly of 1718-1720, and again in the Assembly of 1723-1726.⁵

Her maternal grandfather was [[wikipedia:George_Keith_(missionary)|Rev. George Keith]] (ca. 1638-1716), M.A., schoolmaster, missionary of two faiths, and theological pamphleteer whose career ran almost the entire gamut of the possible experiences of an ecclesiastical leader in an age which could not boast of religious liberty. Born in Scotland, and well educated in England, he became a member of the Society of Friends, commonly called Quakers, and married a Scotch Quakeress, Elizabeth Johnston by name. Sincerely convinced of the validity of the Society's tenets, he published a number of able books in defense of its creed, which has had few interpreters of greater ability, prominence, or contribution. Upon Robert Barclay, George Fox, and William Penn, with whom he and his wife travelled through Holland and Germany on a missionary expedition of consequence, he exercised a profound influence. For these and other activities upon which Old World governments were then accustomed to frown, he was confined for terms of greater or lesser length in prisons upon at least six separate occasions. Nor were his suggestive, almost unique beliefs on such theological problems as the Inner Light, the Lord's Supper as an agape, and the transmigration of souls deemed otherwise than heretical by orthodox Quakers.

[[wikipedia:William_Penn_Charter_School|William Penn Charter School]]. Since he was by nature rather self-assertive and contentious and because he evidently desired, perhaps even coveted, a sole leadership of the Quakers, a severe conflict among them developed around him there. It ended in a separatist movement through which a very sizable minority seceded under him from the Philadelphia Yearly Meeting and called themselves "Christian Quakers" &mdash; usually known by others as "Keithians" &mdash; and in [[wikipedia:George_Keith_(missionary)|Keith's]] being disowned by the London Yearly Meeting.

George Walker of [[wikipedia:Elizabeth_City_County,_Virginia|Elizabeth City County]].¹ He was a son of George and Elizabeth Walker, of whom practically nothing is known.² Presumably they were immigrant colonists who provided certainly no exception to the rule of respectability among George Wythe's forebears.

The younger George Walker was a resident beside Mill Creek of the "Strawberry Bank", upon which the [[wikipedia:Kecoughtan,_Virginia|Kecoughtans]] in days of yore had built their "great town", between Hampton and Old Point Comfort. That he acquired and owned somewhat notable land holdings is adequately proved by surviving county records.³ He was in 1697 an official pilot of James

1. <u>William and Mary College Quarterly</u> (1st series), IX, 127. There is something of a mystery in the geographical question as to how Ann Keith could have married into an Elizabeth City family. A report that her father immigrated about 1690 into Hampton is almost certainly inaccurate: Call, "[[Biographical Sketch of the Judges|Judge Wythe]]", <u>loc. cit</u>., xi. Equally unlikely, though perhaps more possible, is the estimate of the date as 1684: L. S. Herrink, "[[George Wythe (article)|George Wythe]]", <u>The John P. Branch Historical Papers of Randolph-Macon College</u>, III, (1909-1912), no.4 (1912), 283. It would be more probable that they were wed abroad and immigrated with his father's family before 1690. An Anglican preacher named George Keith was a minister in Elizabeth City parish in 1624-1625 and the owner of 100 acres of its land by patent: Heffelfinger, <u>Kecoughtan Old and New</u>, 14. One authority assumes that Rev. George Keith the Quaker was a grandson of this early namesake in the colony: Tyler, <u>History of Hampton</u>, 30.

River, whose duty it was to board vessels arriving in Hampton Roads and to take their wheels during the inland journey, lest their oceanic pilots bring them to grief in narrower and shallower confines.¹ In later years he is revealed as an important factor in [[wikipedia:James_River|James River]] maritime circles.² In response to his petition for permission to take out a patent as personal property upon a wharf which he had been pioneer enough to erect at the end of King Street in Hampton, the Council of the colony decided that, if the municipal officials did not think it prejudicial to the public piers or interest, he was entitled to its private ownership; far from viewing it as a liability, his neighbors acclaimed it was "rather an

Moreover, then as now, [[wikipedia:Old_Point_Comfort|Old Point Comfort]] was Virginia's preeminently strategic place of defense against invasion, and Walker was a public servant in various capacities during the war of the early eighteenth century in guarding against possible forays by French ships.² In the twenties (and perhaps for a longer period), under title of "Gunner and Storekeeper", he was chief commander of formidable Fort George, erstwhile predecessor of present-day Fortress Monroe.³

3. McIlwaine, ed., <u>Executive Journals of the Council of Colonial Virginia</u>, IV, 33. <u>Cf</u>. Tyler, <u>History of Hampton</u>, 36-37.

A family event of consequence in George Walker's household was the return from London to America of his father-inlaw, Rev. George Keith. There was a patent need in the British colonies for a more adequate corps of Anglican ministers who could be relied upon to combat the existence within her borders of certain religious faiths &mdash; particularly Quakerism &mdash; which could not have England's unstinted approval. Thus an apostolic organization was incorporated in 1701 under the Church of England with the descriptive title: Society for the Propagation of the Gospel in Foreign Parts. Engaged as its first missionary, in the next year, to travel extensively through the continental colonies of the West on an annual stipend of <s>L</s>200 was none other than Keith, the ex-Quaker. It was an inherently brilliant selection; who else could be more effectively competent in the task of leading the unorthodox into the established Church than a former leader in errant beliefs, now repentant of earlier heresies?

acquaintance", especially in Pennsylvania, and that he was "in the full Orders of our Church, so that you may permit him to preach when& where you please…."¹ His itinerary carried him in 1703 and again in 1704 to Elizabeth City County, where he found lodging upon both occasions with his Quaker son-in-law. ² Of the former visit he recorded his official report:

... we stayed there but Ten Days, at my Daughters [<u>sic</u>] House at Kirketan [Kecoughtan] by <u>James River</u>; she is fully come off from the Quakers, and is a zealous Member of the Church of <u>England</u>, and brings up her children (so many of them as are capable through Age,) in the Christian Religion, Praised be God for it.³

But since Walker retained his Quaker sympathies, his latch-key was out to members of the Society of Friends as well as to a relative from the S. P. G. F. P. One representative of the former, for example, tells of going in line of duty "to Kicquotan [Kecoughtan], where we had a meeting at our friend, George Walker's house" and reported that his "wife is one of George Keith's daughters and follows him in his apostacy and emity".⁴

4. Quoted from the journal of Thomas Story in Tyler, <u>History of Hampton</u>, 30.

Thus there existed in the home of George Wythe's maternal grandparents two almost irreconcilable religions. Between George Walker, Quaker, and Ann Keith Walker, Anglican, all other marital relationships may have been promptly and satisfactorily adjusted, but the <u>impasse</u> created by Mrs. Walker's renunciation of the Quaker tenets presented a more difficult domestic problem. Perhaps it could have been best dealt with by a tacit and mutually agreeable "live and let live" &mdash; or "worship and let worship" &mdash; policy, for instances of the successful operation of similar arrangements among other couples were not a contemporary oddity; perhaps, on the other hand, it was inevitable in this case that the question must flare up rather openly and demand more than an implied answer.

In either event, Ann Keith precipitated a candid but imperfect settlement of the issue by sending in April, 1708, to Virginia's august Council at Williamsburg a petition, in which she "complained…that George Walker her husband violently restrains her from going to Church to worship God according to the established Religion…"¹ The Councillors' consequent order that the two principals in the matter should appear before them a few days later prompted Walker on his part to anticipate the necessity with another petition. In this he stated that fragility of his wife's health and suggested that she might avoid the risks of a trip to Williamsburg by accepting his willingness to permit her in the future to worship as she

With his whole-hearted submission to her demand for religious freedom, the matter might have rested; but another element, probably the basic one, was injected into the controversy by Mrs. Walker's second petition to the Council, praying that she might be awarded responsibility for the religious instruction of her children. A plea of this kind was distinctly a horse of another color in the eyes of representatives of eighteenth-century British aristocracy. Accordingly, the Councillors examined Walker and satisfied themselves that he wished only an "athorety [<u>sic</u>] over his Childr. that properly belongs to Every Christian man"—the right "to Bring up his Childr. in whatever Christian Religion he may Be of that is priveliged [<u>sic</u>] By our Christian Laws" &mdash; and an exclusive opportunity to direct their religious studies. Thus assured, they advised his wife that he should rightfully have this liberty, offering her only one dim hope, which hung on the old technicality as to whether or not the Quakers were Christians. In a friendly letter to her they stated, "if yo[u] can prove that he is Not a Christian and So Consequently Not within the virge [<u>sic</u>] of our Christian Laws then we are

willing" not to consider the case closed, "but wee [<u>sic</u>] Shuld [<u>sic</u>] be Glad [if] yo[u] Could Be Reconcilled" without its further continuanoo.¹

With this dictum, though it was couched only at best in a semi-official letter of amicable, almost condescending advice Mrs. Walker's cause was lost. Yet the daughter of George Keith could be obdurate. The Council's challenge to give it a technical basis for some other decision she could not meet successfully; indeed, it is probable that she did not even try. But she could force the issue, in one final, forlorn plea, to a more formal conclusion. Thus the Council found it necessary a few days later to review the whole affair. Its decree confirm again the victory she had gained in respect to her own church attendance. The more unprecedented question of the relative degrees of religious authority of the two parents over their children was utterly evaded through a loophole found in her petition, which did not disclose "of what age those Children are nor how far they are capable of chooseing [sic] a Religion for themselves".²

1. The Council to Mrs. George Walker, April 25, 1708, ibid, 80-81. The absence in the Council's <u>Executive Journal</u> of regards detailing all the apparent steps of their proceedings in this dispute and the tone of friendly advice which pervades this letter indicate a desire on their part to settle in unofficially or "out of court", as the saying goes.

There can be little doubt that both parties to this controversy accepted in good faith the incomplete verdict of the somewhat unwilling tribunal to which they had appealed and that they worked out in some manner between themselves the unsolved portion of their riddle. At least such dire possibilities as a disruption of their home was forestalled, and it continued, until Walker's death in 1732,¹ to serve as the chief hotel and assembly hall for Quakers in predominantly hostile Elizabeth City County. One of its guests twenty years later, recording his impressions of a four-day stay, described George Walker as "very loving and hearty to Friends, frequently having meetings at his house", and reported that "his wife ... [was] more loving than I expected. She ... in her younger days showed great dissatisfaction with Friends, but after her father's death [in 1716] the edge of that bitterness abated ...."²

2. Quoted from an account of Samuel Bownas in <u>William and Mary College Quarterly</u> (1st series), IX, 127-128, and in Tyler, <u>History of Hampton</u>, 32-33.

church of her Anglican mother; the latter was the more likely. Thus the thread of Quakerism in George Wythe's ancestry may have been a broken one. It is true, however, that George Wythe chose a rather independent course in religious affairs; possibly this attitude was derived from the influence of his maternal background. Certainly it is, too, that he never experienced his grandfather's difficulty in advancing to high public offices, though in the simple habits of his old age there was to be some resemblance to the personal lives of Friends &mdash; a fact which was deemed worthy of comment upon his death.¹

Pilgrims to the numerous historical shrines of the York-James peninsula are usually unaware that their travels take them near George Wythe's birthplace. One of the Virginia State Commission on Conservation and Development's familiar highway markers a few miles west of Hampton on the road to Newport News proclaims to passersby curious enough to stop that Wythe was born about eight miles north, but no other sign can be found in greater proximity. One who wishes to locate the spot must seek clearest available directions to a certain paved crossroad on the Yorktown highway about seven miles northwest of Hampton, drive a quarter mile northward to a tenant farmer's rural mail box which bears the name "[[Chesterville]]", and walk eastward about 250 yards to a stately clump of tall trees.

northern branch of Back River. Moderately wide beside "[[Chesterville]]", it broadens considerably at Langley Field and empties directly into Chesapeake Bay about five miles farther east; above "Chesterville" it narrows rapidly into a mere creek and half-encircles that former estate on the west. In the main, the boundary line between Elizabeth City and York counties corresponds with the course of this stream.

Within the grove of trees which thus mark the site of George Wythe's nativity a pilgrim of today can find little to inspire feelings of awe and reverence. Unless his imagination is brought into play, he will scarcely catch himself involuntarily thinking of sacred grounds and of customary methods of indicating respect in its presence, such as removing one's shoes or lifting one's hat. For nothing remains but irregular heaps of crumbled brick and partial outlines of the brick foundations of the house which was "Chesterville"'s axis.¹

To this home Thomas Wythe the Third brought his bride of 1719 or 1720, Margaret Walker, and in it their three children were born within the next ten years. The first, a son, was naturally named Thomas and thereby became the fourth Thomas Wythe of Virginia. The second upset the local Wythe precedent of single male heirs in each generation. For him the Christian name George was adopted, probably in honor of his maternal grandfather, George Walker, or of his widely known maternal great-grandfather, George Keith. The third child, a daughter, received the given name Ann, which had occurred much more frequently in her father's family than in her mother's.

1. This tradition seems to be acceptable, despite one local authority's contention that "there is no evidence that any houses in Virginia were built of imported brick": Tyler, <u>History of Hampton</u>, 32.

1. "[[Media:HallAmericanLawJournal1810.pdf|George Wythe]]", <u>American Law Journal</u> (ed. by John E. Hall), III (1810), 97. Jefferson erroneously guessed the year as 1727 or 1728: Thomas Jefferson, "[[Notes for the Biography of George Wythe]]", Ms. filed under date of August 31, 1820, Jefferson Papers, Library of Congress: for his explanation of the surmise <u>cf</u>. [[Jefferson-Sanderson Correspondence|Thomas Jefferson to John Sanderson, August 31, 1820]], <u>ibid</u>.  

person. But, no matter how generously he may have shared his heritage, other members of the family must have suffered inconveniences and have seen many a want go unfilled through the rather immutable operation of the law's unequal division of the family's wealth. A later age deemed this deep-seated discrimination in favor of the first-born to be against public policy and grossly unfair. George Wythe, who may be justly considered more or less a victim of the system, put his shoulder to the wheel in the drafting of legislation which would grant each immediate survivor a portion of the real estate in the event of an interstate death.¹  

There may be some exaggeration in the description of her as a "woman of uncommon knowledge and strength of mind" which ascribes to her so intimate an acquaintance with Latin that she spoke it "fluently",¹ but at least she, as a granddaughter of George Keith, was not as illiterate as the mother and grandmother of her husband, neither of whom could sign her own name.² Wythe himself in later years attributed to his mother his initiation in the study of the Latin language,³ but as she taught him only the principles of grammar and, as he said, "to read the colloquies of <u>Corderius</u> very imperfectly...."⁴ Another report has been handed through somewhat more indirect channels to the effect that she assisted his translations of the New Testament in its Greek text by referring when necessity demanded to an English version,⁵ though she probably "knew of Greek only the alphabet and how to hold the dictionary...."⁶ Thus George Wythe's maternal

Yet means were forthcoming from some source to cover his tuition and other expenses for a brief stay in William and Mary's halls of learning. Loss of the college records by fire forestalls any description of his study there. Indeed, it is a matter of conjecture when he enjoyed his only major formal schooling: the years 1735,¹ and 1740,² and, more indefinitely, sometime between 1730 and 1735³ are recorded. If 1740 be the correct date, he might have been enrolled in the upper school of that historic institution, for college students were often in those days less than sixteen years of age. But it seems more probable that in 1735 he supplemented his mother's teaching by attending for a short time the grammar school in Williamsburg, then an integral unit in William and Mary. Concerning this episode of Wythe's youth perhaps only two facts can be stated without qualification: the College claims him proudly as an alumnus;⁴

From so meager an acquaintance with the foundations of classical learning George Wythe's attention was necessarily diverted to the more practical problem of professional training. The system by which he was destined to seek his livelihood in some profession or business was later described well by one of his contemporaries:

Through his father's death the career of Thomas Wythe the Fourth lay in the exclusive superintendence of affairs at "Chesterville". As the younger son, George Wythe's course in life was not prearranged or mapped out ahead of time for him. Necessity demanded a choice of one of the customary alternatives.

The road to preparation for the bar led in colonial days through the study at England's Inns of Court and Middle Temple or through an apprenticeship in the office of an American lawyer, for there was then not one law school in the New World &mdash; a situation which Wythe himself altered by becoming in due time America's first professor of law. Unable to afford the more expensive advantages of British training, Wythe availed himself of a nearer opportunity. His mother's older sister, Elizabeth Walker, had married Stephen Dewey, of Prince George County, a wealthy gentleman who was prominent there as justice of the peace and burgess.¹ His ability as a lawyer is attested

George Wythe, when he was perhaps about fifteen years of age, went to live for a year or two in his Aunt Elizabeth's home, roughly a hundred miles inland on the south side of the James, approximately four miles below Petersburg. In his uncle's office he doubtless had access to a library of standard legal volumes; there he began his first serious reading of the law. But this typical arrangement made obligatory some compensation for its privileges. Ordinarily, the student spent long hours copying legal documents and papers and "devilling" (to use the language of a print-shop) for his patron in other tedious phases of practise. Dewey was inclined to destroy the inspiration of his library by expecting too many tasks in return for its advantages, by considering his young apprentice more a servant to ease his labors than a scholar to sit at his feet &mdash; such, at least, is the only available picture of their relationship, printed by one of Wythe's close friends in later life, who may have secured its tints from the lips of the apprentice himself. Dewey, so the story goes, "treated him with neglect, and confined him to the drudgery of his [Dewey's] office, with little, or no, attention to his instruction in

the general science of the law". Thus George "made little progress".¹

Yet, as the distinguished editor of the <u>Southern Literary Messenger</u> has aptly suggested, the value of this episode in Wythe's education could easily be underestimated. For the study of law is ever an essentially exacting occupation, requiring "sacrifices of its votaries", and those who apply themselves to it with utmost devotion to irksome details acquire frequently invaluable habits of accuracy, industry, and penetration. Though he may not have looked back appreciatively upon them as a pleasant experience, perhaps in Stephen Dewey's dull and routine assignments George Wythe inured himself to the ennui of thousands of legislative and legal papers which were to confront him ceaselessly in later years. Though probably unexciting, his preceptor's requirements had a certain solidity, and to this may be partially attributed his remarkable capacity for assiduous attention to matters great and small, however boring they might be. It is reasonable to infer, too, that Wythe learned by his own experience in Dewey's office a preliminary lesion in the difference between attractive and unalluring methods of teaching; he profited, no doubt, from his uncle's example when, at a later date, he was in Dewey's shoes or when, still later, he faced a formal law class.²

2. Benjamin B. Minor, "[[Memoir of the Author]]", George Wythe, <u>Decisions of Cases in Virginia by the High Court of Chancery...</u> (2nd ed.), xii.

Upon the termination of his apprenticeship in Prince George, Wythe returned to his native county for a few years of independent study in classical languages and in law.¹ Though he lacked the guidance of a tutor, at "Chesterville" his time must have been largely and gloriously his own. Almost complete freedom from vexing hindrances to absorption in the printed page was his own for a while. Within a few months of his twentieth birthday began the long succession of other occupations which made inroads through three score years upon his opportunities for self-instruction, but they could not stamp out the inordinate joy which George Wythe found in erudition nor curtail his insatiable hunger for the constant acquisition of more knowledge.

2. The sketches of Wythe's life indicate, without exception, that her death preceded his becoming of age. The exact date is given in only one obscure source: Harry Clinton Green and Mary Wolcott Green, <u>The Pioneer Women of America</u>, III, 234. (For their own frank estimate of the authenticity of their work see <u>ibid</u>., I, iv-vi.) In 1734 she preferred charges of trespass against two members of the Mallorry family, but the prosecution was dropped because of the failure of plaintiff and defendants, who may have settled their differences out of court, to appear for the trial of the case: entry of November 20, 1734, [Common Law Order Book, 1731-1747,] 86, Elizabeth City County Records. In 1742/3 she was named a godmother of Martha Tucker: <u>Virginia Historical Magazine</u>, IV, 362. She is known definitely to have survived until George Wythe was eighteen years old: indenture of Margaret Wythe, August 15, 1744, [Common Law Order Book, 1731-1747,] 396, Elizabeth City County Records.

Meantime, Ann Wythe, his sister, had married Charles Sweeney,¹ a member of a family long prominent in Elizabeth City County.² Quite aside from this linkage of the Wythe family with more representatives of colonial Virginia's blue blood, this marriage is of melancholy interest, for a grandson of Ann Wythe Sweeney was to play a most sinister role in George Wythe's death.³

1. Indenture of Margaret Wythe, August 15, 1744, [Common Law Order Book, 1731-1747,] 396, Elizabeth City County Records; <u>William and Mary College Quarterly</u> (1st series), II, 69.

The responsibilities involved in the legal vocation suggest the advisability of a careful selection of candidates for the bar. Until George Wythe's generation the colonial government of Virginia evolved no lastingly satisfactory method for weeding out incapable and unworthy applicants; a number of laws were tried, only to be repealed.¹

George Wythe probably journeyed to Williamsburg to take the test of his legal knowledge at the time of the spring term of the General Court in 1746. His license was signed by Peyton Randolph, St. Lawrence Burford, Stephen Dewey, and William Nimmo.² Thereupon, within a few months of his twentieth birth day, he sought permission to practise before the justices of Elizabeth City's county court. The official minutes of their proceedings on June 18, 1746, include this entry:

1. <u>Ibid</u>., V, 345-348. For minor changes in this act during the remained of the colonial period <u>cf</u>. <u>ibid</u>., VI, 140142, VII, 124, 397-398, VIII, 198, 385-386.

2. Entry of May 21, 1747, <u>Order Book No.1</u>, 196, Augusta County Records. This county's record is the only one among those of several counts courts to which he was admitted as a practicing attorney which names his examiners. How he happened to apply to Augusta's bench will appear later.

Thus the fledgling barrister was equipped for flight. Of his initial effort — that dreaded, momentous experience which every lawyer must undergo &mdash; nothing is known. But if neighbors in Elizabeth City became his first clientele, they had soon to seek another advocate, for Wythe moved away from his native county a second time to live during the next two years in another section of the state.

To the northwest of the familiar York-James peninsula was Spotsylvania County, extending from Caroline County in the east at the fall line westward into the Piedmont. In this strange upland region George Wythe was to establish for the first time his financial independence and legal fame. Why he left Elizabeth City County is a matter of guesswork rather than of record; perhaps the likeliest conjecture is that his mother's death made a change advisable for George, who could not expect to share his older brother's home forever and should now become entirely self-supporting. Granting this necessity, why he went so far afield from "Chesterville" is more inexplicable, for he is not known to have had a single acquaintance outside of the Tidewater.

1. His father, Zachary Lewis, had patented land in King and Queen County in 1694 and in King William County in 1703: <u>William and Mary College Quarterly</u> (1st series), IX, 259-260. He qualified as an attorney in Caroline County in 1734 and as King's attorney in 1739: <u>Virginia Historical Magazine</u>, XX, 203-204; he took the oaths as an attorney there again in 1746, apparently requalifying under the act of 1745: entry of August 8, 1746, <u>Order Book, 1740-1746</u>, 609, Caroline County Records. <u>Cf</u>. entry of June 14, 1746, <u>ibid</u>., 598, and entry of July 11, 1748, <u>Order Book, 1746-1754</u>, 87, <u>ibid</u>. In 1742 he was sworn as an attorney in Spotsylvania: entry of December 7, 1742, <u>Orders, 1738-1749</u>, 190, Spotsylvania County Records. He was for a number of years King's attorney in Orange County; in the official records of its court his name appears much more frequently than any other: <u>e.g</u>., <u>Order Book No. 4, 1743-1746</u>, <u>passim</u>, <u>Order Book No. 5, 1747-1754</u>, <u>passim</u>, Orange County Records. <u>Cf</u>. also Green, <u>Pioneer Mothers of America</u>, III, 233; John Merriwether McAllister and Lura Boulton Tandy, <u>Genealogies of the Lewis and Kindred Families</u>, 134.

More enlightening for those who would know something of George Wythe's early success in the inferior courts are the records of Orange County, partially preserved. When Wythe was admitted to practise in Orange cannot be ascertained, for a gap occurs in the records, covering the period between June,

2. Entry of May 21, 1747, <u>Order Book No.1</u>, 196, Augusta County Records. His application there was sponsored by Gabriel Jones, the first and for some time the only lawyer living in the county: <u>ibid</u>.; <u>Viriginia Historical Register</u>, III, 16-17. The writer failed to learn whether or not Zachary Lewis practiced in Augusta, as he did at the other courts which Wythe entered; it is possible that Wythe acted independently in crossing the Blue Ridge.

1746, and July 1747.¹ At one of the courts during this interval, however, he did undoubtedly enter the bar there. His name occurs frequently on the records thereafter in entries reading, "This day came the Pl^t. by George Wythe his Attorney..." and the like. A somewhat cursory examination reveals that, in the official chronicles of eight out of the eleven courts held during the fifteen months beginning July, 1747, Wythe's name appears in this manner under fifty-four cases.² Nor does this mean that Wythe appeared in the trials of only fifty-four suits. Anonymous reports of lawyers' presence and pleas were often made; and when a case was continued from one term to the session of the next &mdash; a

| style="text-align: left;" |April 1748 &mdash; no court session recorded

| style="text-align: left;" |May 1748

situation of common occurrence, through technicalities of the law or insufficient evidence &mdash; the names of attorneys for each party were frequently not repeated in later entries.¹ If this statistical summary alone is not sufficient attestation of the place which Wythe held among his rivals at the Orange bar, comparison of it with that of others indicates that he plead many more cases than any other advocate there except Zachary Lewis, who, as King's attorney, was naturally the preeminent figure.² And, lest any doubt be entertained concerning the breadth of knowledge which these cases required of the twenty-two year old lawyer, it may be observed that he was engaged in diversified phases of actions in criminal, civil, and chancery jurisdiction. They involved such matters as alleged debts, trespass, assault and battery, retailing of liquors without license, and grand jury presentments against persons who obstructed with dams the navigation of the Rappahannock River.3 That he was retained as counsel for the substantial element in Orange citizenry is suggested by the fact that William Russell, one of the court's justices,

On the basis of these incomplete records it is safe to picture Wythe as a very successful attorney at law during 1747 and 1748, riding the circuit of the monthly courts from Caroline County, in the western Tidewater, on the east, through Spotsylvania and Orange to Augusta, in the Shenandoah Valley, on the west. He managed to make at least one visit to Elizabeth City, however, for in May, 1743, he sold to George Wray a slave girl named Lucy for &pound;23 5s, the court record of the transaction identifying him as "of the county of Spotsylvania, attorney at law".² Presumably, he was aided in getting his start as a practitioner by Zachary Lewis, perhaps living in Lewis' home. They must have often travelled together in the best of fellowship from courthouse to courthouse; locked horns, matched eloquence, and pitted wits against wits and argument against argument in dead earnest, upon arrival at a county seat, while upholding opposites sites of the same suit;³ and ridden off together, upon adjournment,

1. <u>Ibid</u>., 15, 18, and <u>passim</u>. For references to Wythe in capacities other than that of attorney see <u>ibid</u>., 49, 140. He witnesses three deeds in Orange, the first two with John Lewis, the last with Jon Lewis and William Russell: indentures of October 22, 1747, <u>Deed Book No.10</u>, 532, 533, and indenture of November 27, 1747, <u>Deed Book No.11</u>, 25, Orange County Records.

2. Indenture of George Wythe, May 3, 1748, <u>Deeds, Wills, Etc., 1736-1753</u>, 232, Elizabeth City County Records. <u>Cf</u>. entry of that date, <u>Order Book, 1747-1755</u>, 33. Jones <u>loc. cit</u>., 326, errs in reporting the year of this sale to be 1746. George Wray was a brother-in-law of Wythe's mother.

There was more, however, than the <u>camaraderie</u> of association at the bar to link together the lives of George Wythe and Zachary Lewis. Professional relationships were supplemented and made more personal by the marriage of the twentyone year old attorney to a daughter of his forty-five year old patron.

1. McIlwaine, ed., <u>Journals of the House of Burgesses, 1702-1712</u>, ix; McIlwaine, ed., <u>Journals of the House of Burgesses, 1712-1726</u>, vii, x; <u>William and Mary College Quarterly</u> (1st series), VIII, 79, IX, 63; Horace Edwin Hayden, <u>Virginia Genealogies</u>, 381. For an abstract of John Waller's will see Crozier, ed., <u>Virginia County Records</u>, I, 13-14; for abstracts relating to his sons see <u>ibid</u>., <u>passim</u>. Of them Edmund and John became clerks of SpotSylvania County, William was a colleague of Wythe and Zachary Lewis at the bar, and Benjamin moved to Williamsburg and became a judge of the admiralty court and a burgess for a number of years.

So early a personal reminder that Death has no season would be a violent blow to the young husband of almost any recent bride. Perhaps George Wythe was staggered for a time after its sudden impact, weighed down with heavy, disconsolate bereavement; or perhaps he consoled himself as best he could with some reassuring philosophy from his beloved classics.

Williamsburg, which had supplanted Jamestown as the colonial capital about the opening of the eighteenth century, was the location in Virginia which fitted this description. By no means an imposing town most of the year, it bustled during the semi-annual terms of the General Court and during the House of Burgesses' more irregular sessions with all the activities and fineries of a provincial government proudly imitating Britain's royal hierarchy. For those to whom the gates of its somewhat exclusive officialdom were not barred through want of family position, acceptable social graces, or ability, it was ambition's chief point of vantage. The easier path toward its inner circle, via the attainment of sufficient local prominence and wealth to become the representative of one's county in the House of Burgesses, George Wythe found barricaded to all intents and purposes by the

destiny which had transferred "Chesterville"'s tobacco fields to Thomas Wythe the Fourth and had made of him a successful but landless lawyer. The other road was built upon the principle of bearding the lion in its den or of camping just outside the gates until one's knocks were answered by admission. The latter, though more difficult under ordinary circumstances, was the more direct and surer route to self-improvement for the able.

Wythe had not long to wait before a stepping-stone to official position was placed at his feet. The House of Burgesses convened in the second month after his wife's death, and in its organization he was appointed on October 28, 1748, clerk to its largest and most important standing committees, that of Privileges and Elections and that of Propositions and Grievances.¹ His task was to keep minutes of the proceedings of these committees. The former made decisions on disputed elections; the latter considered all major petitions. It was an humble but honorable position. To an attorney of twenty-two it produced enviable facilities for a liberal education in colonial legislation and for association in their recurrent meetings with the most influential members of the House. From so small an acorn as this grew the great oak of Wythe's connection with the House in one capacity or another through all but two of the remaining years before its unlamented demise at the opening of the Revolution.

Thus Williamsburg became the center from which Wythe rode the circuit of the county courts in pursuit of his daily bread. In one of these, Elizabeth City, he had already been admitted to practise. Early in 1749 he qualified and took the oaths before the justices of York and Warwick counties;¹ probably the same preliminaries were performed in James City, possibly also in other county courts.² Surviving records, which usually bury the identity of the advocates in each suit in the noncommittal "by his Attorney" phrase already noted, disclose just enough data to hint that he built up readily a new clientele to replace that which he had abandoned. He argued three cases in the first term of the Warwick court following that in which he was admitted to its bar.³ One of these is extremely typical of colonial litigation. Wythe defended one Andrew Giles in his prosecution "on a presentment by the grand jury for not frequently his Parish Church". In his behalf Wythe secured two postponements of the trial, but his plea for a dismissal of the case brought adverse judgment from the bench, which deemed the demurrer invalid.

When a new House of Burgesses convened in 1752 Wythe was reappointed clerk to the committees of Privileges and Elections and of Propositions and Grievances.¹ A defeated candidate in the preceding election contested, as would-be burgesses were wont to do in those days, the seat which had been given to one of his recent opponents and wanted Wythe to present his side of the controversy. An apparently unprecedented question of procedure was thereby raised &mdash; could the House rightfully permit the clerk of one of its committees to serve as counsel for either party in a controversy before that committee? It was moved from the floor and ordered specifically that Wythe might defend in committee the claims of the petitioning candidate.² But this deposition of the question as it applied to one case did not prevent its recurrence in similar cases; a few days later the House found it advisable to grant to Wythe "Liberty to appear as Counsel, in any Matter of controverted Elections, that shall happen before the said Committee.",sup>3</sup>

a house and lot there, but he resold it so soon to the former owner that the purpose of his purchase must be considered obscure, at least, if not indeed unfathomable. On the fifteenth of December, 1752, John Palmer, a Williamsburg lawyer, received from George Wythe "of the same place Attorney at Law" the ridiculously small sum of &pound;5 as payment in full for his property rights to the lot and home on the south side of Duke of Gloucester Street at its eastern end, opposite Capitol Square, which had been his residence.¹ Less than three weeks later Wythe's &pound;5 was returned to him, and he transferred to Palmer the ownership of that well-situated property.² The financial consideration &mdash; minute enough to be entirely incommensurate to the values involved in this exchange by Wythe of cash for house and house for cash &mdash; suggests as one explanation of this equivocal transaction a desire on his part to tide Palmer over some temporary economic crisis with a loan protected by more than ample collateral.

Though he was to be for two or three more years just a landless lawyer, life in Williamsburg's pleasant legal and political circles must have proved interesting to their young newcomer. And social diversions were doubtless as plentiful

as official activities, despite the solemn decision of the Council that some comedians who had arrived recently should not be granted permission to "act or exhibit any Plays or theoretical Entertainment in this Government."¹ Probably after an agreeable dinner and several hours of delightful conversation on a diarist recorded tersely: "Mr. Wyth [sic] spent the eveng here."²

Advancement in the House of Burgesses came much sooner than might have been reasonably expected by the lowly but favored clerk whose duties required him to rub elbows in a subordinate capacity with its leaders. At the age of twenty-eight he was elevated to a position of technical equality with them.

The Burgesses who were elected in 1752 had met for three sessions before the capitulation of Col. George Washington's forces at Fort Necessity, in one of the earlier military episodes of the French and Indian War, occasioned a fourth meeting. When the people's representatives convened in 1754 to cope with this emergency, the seat of the member from the incorporated town of Williamsburg was vacant; Armistead Burwell, its occupant during the earlier sessions, had died in

the interim. In accordance with the formalities usual in such cases the House took steps immediately to secure the prompt election of a new representative by the qualified voters of the capitol city.¹ Their duty of selection was probably an easy one &mdash; nearly all the men of prominence among them were ineligible by reason of places which they held already in some branch of the government. Of available citizens George Wythe was chosen, and in the same year he took his seat as a full-fledged burgess.² Henceforth the House must look elsewhere to supply scribes for its standing committees.

This partially fortuitous promotion in the fourth session of the Assembly of 1752-1755 was followed in its fourth remaining terms by recognitions given within the House itself which prove that it shared Williamsburg's esteem for Wythe. His ability was apparently adequate to counteract any jealous

1. McIlwaine, <u>Journal of the House of Burgesses, 1752-1758</u>, 190. This action was taken on the day of convening, August 22.

imputation that he deserved at his comparatively immature age a smaller measure of good fortune. In 1754 an appropriation of &pound;20,000 was passed to help finance the current war against the French in the West. But such generous cooperation was circumscribed by an almost unprecedented condition: in the disbursement of these funds His Majesty's lieutenant-governor, who alone had previously superintended colonial expenditures, should act in conjunction with a special committee of directors, on which Wythe was the junior member named by the General Assembly.¹ When a sum twice as large was made available in the following year on the same terms, Wythe was again among those to whom the House delegated the assignment of guarding against the possibility that it might not be so expended as to render greatest aid to England's cause.² Upon a reorganization of four standing committees in 1755, to consider an accumulation of provincial business which had piled up under the exigencies of international conflict, he was given a place as the newest member of the three major subdivisions &mdash; the committees on Privileges and Elections

Before he had reached the age of thirty George Wythe became intimately entangled in the long series of constitutional conflicts between the House of Burgesses and England's royal government which recurred periodically until the colon of Virginia became an independent commonwealth. The first of these was the pistole fee crisis, In it he attained a rank higher and more honorable than that of a burgess &mdash; but it was a position gained under circumstances peculiar and ticklish, literally reeking with possibilities for misinterpretation and jealousy.

His Majesty had delegated the choicest of thirteen continental plums of colonial patronage to the Earl of Albemarle, who held the title of Governor General of Virginia but continued his residence in England. It was then customary among such appointees to sublet the actual supervision of a colony's affairs to one of their own favorites, who held the

His predecessors had permitted an evasion of royal tax laws to grow to proportions which he deemed serious. More vigilant or avaricious than they,² he refused to place his signature and seal upon the thousand-odd patents pending in 1752 until receipt of a pistole (a Spanish coin then in current use, worth about $3.50) as a fee for the service of making legal the titles to lands whose surveys had been duly registered in the office of the colony's secretary. For

years these surveys had been recorded and actually possessed without having been entered on the quitrent rolls, by which the royal revenues were annually being defrauded of the taxes on more than a million acres. To this deliberate scheme of tax-dodging [[wikipedia:Robert Dinwiddie|Dinwiddie]] proposed to put a stop; and, since unpatented lands were the property of the King by whose authority he claimed to act, he had the law on his side in his demand of a fee before their titles were confirmed.¹ Just to be certain of steadfast support from across the Atlantic in the reform, he took the mater up with the British Lords of Trade and received official approval of his plan, in which the members of Virginia's Council had already concurred.²

The lower house of the colonial legislature, on the other hand, wary with fear that Dinwiddie's executive proclamation might become a precedent for rigid execution through all the future of a law which had been unobserved for decades, availed itself of its earliest opportunity to register its emphatic disapproval. Late in the fall of 1753 the Burgesses addressed to the lieutenant-governor a rousing indictment of the fee as an infringement of the constitutional rights and royal declarations which prohibited the exaction of any part of a subject's property under authority other than that of an

When the adamant lieutenant-governor, surprised at these unexpectedly forceful attacks,³ and his loyal Council gave not one inch of ground,⁴ the Burgesses proceeded to the selection of their agent. [[wikipedia:Peyton Randolph|Peyton Randolph]] (1721-1775), representative of corporate [http://www.wm.edu/ William and Mary College], which had a sort of "rotten borough" seat in the House, was chosen, and it was resolved that he should be paid &pound;2500 from the public

3. Robert Dinwiddie to James Abercrombie, February 24, 175, Brock, ed., <u>Records of Dinwiddie</u>, I, 511-512, gives a bitter and disillusioned statement of his later wish that he had never precipitated the crisis.

treasury for his trouble. The fact that [[wikipedia:Peyton Randolph|Randolph]] had been since 1748 His Majesty's Attorney-General made him the most promising candidate to carry an appeal to the Crown, but his duties lay in Virginia. Accordingly, the Burgesses anticipated later objections with an address to the King explaining their selection and urging that his mission should not bring down royal disfavor upon his head.¹

not recede...."¹ Accordingly, he sailed for London despite Dinwiddie's opposition.

As the House had foreseen, the lieutenant-governor, "wounded to the soul", thereupon adopted "personal revenge" as his "weapon" by seizing the opportunity of declaring that Randolph's office had been vacated by his departure.² In January, 1754, he appointed George Wythe to it &mdash; apparently with no intention of creating merely a <u>pro tempore</u> or Acting Attorney General to serve until Randolph's return.³ Admitted to a hearing before the Board of Trade in April of that year, Randolph was examined not upon the purpose of his mission but as to whether or not he had abandoned his royal office. Forced thereby to fence with a disapproving Board for his own rather than the Burgesses' interests, he admitted that he did not consider himself Attorney General during his absence and

The worth to Virginia of these concessions has, perhaps, been too greatly minimized.¹ The Burgesses had staked their fortune in their battle with the lieutenant-governor on a protest against his somewhat arbitrary demand of a pistole for his signature and seal on land patents &mdash; their most tenable constitutional ground. This attack upon the wings of his defense was quite ineffective, for his right to extract the fee was limited only by prohibitions against its application to patents for less than 100 acres, to patents for the time-honored land bounties given those who were responsible for the immigration of new colonists, and to patents located west of the mountains, where all discouragements to settlement then met official frowns &mdash; and for such cases the fee had never been demanded. But a significant inroad was made upon his center in respect to the tacit but fundamental issue of the evasion of quitrents. Having purposely avoided an assault upon Dinwiddie's claim that the royal revenues were being defrauded, the House must have been pleasantly surprised that Dinwiddie was told to waive the fee and all arrears of quitrents on lands surveyed but unpatented before 1752. To Dinwiddie this dictum on the "Chief dispute between the People and me", as he termed it,

1. <u>Cf</u>. <u>e.g</u>., Brock, ed., <u>Records of Dinwiddie</u>, I, x; McIlwaine, ed., <u>Journals of the House of Burgesses</u>, 1752-1758, xx.

came as the severest of shocks.¹ Thus public policy as the Lords of Trade saw it awarded a partial victory to the aggrieved subjects by ignoring certain overdue taxes &mdash; a rare phenomenon in British colonial administration of that century, whose zeal for revenue was usually quite keen.

Fearful lest these concessions be deemed insufficient atonement for the affirmation of [[wikipedia:Robert Dinwiddie|Dinwiddie's]] right to his pistols, another was made in which George Wythe was directly concerned. Of no material advantage to the colony, it was nevertheless well calculated to serve as a psychological balm. The pangs of Randolph's failure to secure a denunciation of the pisole fee would be sharpened by public remorse over his personal fall from royal grace. Since official confirmation of Dinwiddie's appointment of Wythe as Attorney General, in the form of a royal commission, had not yet cleared the hurdle of red tape, bitterness over Randolph's sacrifice could be forestalled without undue difficulty by his reinstatement in office. This would constitute &mdash; so the Board of Trade and

1. The peculiarly indefinite provisions of the Board of Trade's instructions must be gleaned from the correspondence of Dinwiddie, who decided to withhold still longer the pending patents until replies came to some specific questions: Robert Dinwiddie to the Lords of Trade, October 25, 1754, Brock, ed., <u>Records of Dinwiddie</u>, I, 362-363; <u>id</u>. to Horace Walpole, October 25, 1754, <u>ibid</u>., 370-371. Recorded information about the Board's consideration of these questions is rather unenlightening: entries of January 7, 10, 14, 1755, Board of Trade Journals (Transcripts), LXIII, 18, 29, 30, Pennsylvania Historical Society Library. The final arrangement is partially told in Robert Dinwiddie to James Abercrombie, June 23, 1755, Brock, ed., <u>Records of Dinwiddie</u>, xx, 73; id. to Lord Walpole, November 9, 1756, <u>ibid</u>., 542.

an incumbency there of roughly twelve months.¹ A nephew of Peyton Randolph has supposed that Wythe had privately intended to give up the office when Randolph's mission was completed, out of friendship for Randolph and sympathy for Burgesses' cause. According to this view, when Dinwiddie approached Wythe with an appointment in Randolph's stead,

The premise upon which this assumption is based was undoubtedly true: Wythe was loyal in every known respect to friends and country. But it does not necessarily follow that he positively and voluntarily intrigued with Randolph to defeat Dinwiddie's aims, however thoroughly in character such action might be. Nevertheless, the hint of such a patriotic and sacrificial course must be deemed a most interesting possibility, if not indeed probability. Granting its verity,

Whether or not Wythe accepted the lieutenant-governor's appointment with professions of loyalty to one or more of the Burgesses, his position during 1754 was a treacherous one. One misstep might have turned against him the irascible Dinwiddie, whose temperament was not bettered by ill-health, and lost for him the benefits of royal patronage and of the Attorney-General's &pound;140 annual salary. On the other hand, Virginians were quick to detect and condemn in appointees of the Crown sentiments which they considered prejudicial to their interests. In the heated atmosphere of 1754 Wythe had outwardly taken Dinwiddie's side, yet he seems to have steered safely the difficult course between a Scylla and a Charybdis. So far as is known, he received no censure from the critical tongue or caustic pen of Dinwiddie. His selection late in the summer of 1754 by the freeholders of Williamsburg as their representative in the General Assembly and the assignments given him by the House during that and the following year are adequate testimony of the public's approval of his role in the pistole controversy.

While George Wythe had been in Spotsylvania, his older brother, Thomas Wythe the Fourth, began a career which gave

promise of emulating the examples set by his father, grandfather, and great-grandfather. In 1747 he became a justice of the Elizabeth City county court, and until the winter of 1753 he managed to attend his duties somewhat faithfully despite the demands of "Chesterville" upon his time.¹ As had been the case with his grandfather, his death came before he reached an age at which he might reasonably expect to occupy one of Elizabeth City's seats in the House of Burgesses, in which his father and great-grandfather had sat and in which his younger brother was then representing Williamsburg. He

{| width="50%" style="border-collapse: collapse;"

| width="40%" style="text-align: left;" |<u>Date</u>

died probably early in 1755,¹ an intestate bachelor. In this respect it was a fortunate event for George Wythe, to whom ownership of "Chesterville" descended automatically under the primogeniture law.

The possession of property in Elizabeth City made the younger Wythe eligible to become a judge of the county court and he was appointed almost immediately its presiding justice, sitting upon its bench (instead of pleading cause before its bar as an attorney) for the first time on July 1, 1755.2 In later sessions he attended the court for several years in

Another link in the chain which bound George Wythe to residence in Williamsburg was the blossoming of social interests there into a second marriage. After several years of widowerhood, probably about 1755, Wythe married [[Elizabeth Taliaferro Wythe|Elizabeth Taliaferro]],

1. All the sketches of Wythe either ignore, evade, or falsify the time of his entrance to this court, the official records of which have never been available to scholars; when any information on the point has been given, it has been stated or implied that the date was 1756. But an earlier though indefinite date can be deductively established from the fact that Paul Carrington (1732/3-1818) received May, 1755, a license to practise law signed by [[wikipedia:Peyton Randolph|Peyton Randolph]], [[wikipedia:John Randolph (loyalist)|John Randolph]], and George Wythe: Alexander Brown, <u>The Cabells and Their Kin: a Memorial Volume of History, Biography and Genealogy</u>, 205. Since the official board of examiners could then consist only of judges of the General Court and of members of its bar, and since Wythe was never a member of the Council, it follows indubitably that he had gained admission to its bar before May, 1755. The original act of 1745 setting up the board of examiners had been renewed in 1748 without change in that respect: Hening, ed. <u>Statutes</u>, VI, 140-143.

daughter of Richard and Eliza Eggleston Taliaferro.¹ Her father owned an estate called [http://www.nps.gov/nr/travel/jamesriver/pow.htm "Powhatan",] located in James City County some four or five miles south of Williamsburg; he was a wealthy man, probably a "gentleman farmer" by vocation, an architect by avocation, and had been a judge of his county's court.² With his second bride it is possible, perhaps even likely, that he secure the use of the [[George Wythe House|comfortable brick house]] which was for many years his home. Situated on the west side of the Palace Green, adjoining far-famed [http://www.brutonparish.org/ Bruton Parish Church,] less than a block from Duke of Gloucester Street, with the palatial Governor's Palace two blocks distant on the north, this handsome residence was built about 1755 by Wythe's second father-in-law. Under the terms of Richard Taliaferro's will its legal title was vested in his daughter and her husband.³

1. Jefferson, "[[Notes for the Biography of George Wythe]]", filed under August 31, 1820, Jefferson Papers, Library of Congress; Hayden, <u>Virginia Genealogies</u>, 382; Tyler, "[[Great American Lawyers|George Wythe]]", <u>loc. cit</u>., 82-83, is authority for the date, for which no citation is given

Despite such attachments as these to Williamsburg, George Wythe did not lack a substantial interest in Elizabeth City County. Early in 1756 an election of representatives in the House of Burgesses took place. The burgess chosen by Williamsburg's electorate to fill Armistead Burwell's unexpired term announced his candidacy for one of his native county's two seats, to which he was quite eligible by virtue of his legal residence and property at "Chesterville",¹ but he was defeated in this effort at the polls. Freeholders in Elizabeth City appeared as a whole to prefer their actual rather than technical neighbors as representatives, no matter how distinguished the latter might be, for Wythe ran no better than fourth in a race between four or more candidates. Subsequent generations would not know even this much about that election, were it not for the facts that John Tabb, burgess in the House of 1752-1755, whose votes were third largest, protested against the award of a seat to William Wager ² and that the Committee on Privileges and Elections spread certain records of their

As was usual in cases of contested elections in counties more or less distant from Williamsburg, the Committee appointed a commission of leading citizens to get at the bottom of the affair by examining under oath witnesses for each party on the legality of their freeholds or rights to exercise the suffrage and on any alleged irregular electioneering methods. It was not at all usual that one of the defeated candidates, George Wythe, should have been named chairman of this commission of five.¹ Yet, because Elizabeth City was not so very far away, it was soon agreed upon that the commission should examine only witnesses too infirm or ill to travel, the remainder to testify in person at the capital before the Committee.²

home during the campaign. One of these explained that Wager "had assisted him in his Distress, and therefore he did treat the Freeholders at that Time", adding his intention to do the same thing "as often as M^r <u>Wager</u> and M^r <u>Wythe</u>, should be candidates for that County." The Committee learned, too, that at a meeting of freeholders "procured by M^r <u>Wythe</u> who was a Candidate or his Friends" some of his backers promised that Wythe would serve as burgess without compensation and "that they would give Bond to repay any Thing that should be levied on the County for him...." Not to be outdone, Wager had offered to match these terms, which gave an unheralded wag by the name of Cary his cue to declare, "now we have got two men that will serve us for nothing, which he was glad of, as he found it very difficult to pay his Taxes...."¹ But, since Cary had not voted for Wager, the Committee could find nothing illegal in Wager's campaign practises. Accordingly, the result of the disputed election hinged upon the qualifications of the voters. The Committee found that seven of Wager's supporters were not freeholders and ruled out only three of Tabb's votes. By these subtractions Tabb was seated by a plurality of one over Wager, who had originally polled a three-vote lead.²

Defeated in this somewhat typical campaign, George Wythe watched for two years from the outside the sessions of the Burgesses elected in 1756. That, as has been previously intimated, was the only House between 1748 and the Revolution with which he had no official connection.

The activities and attainments of the third decade in George Wythe's life have thus been reconstructed as fully as authentic sources permit. To complete this review of those years only one consideration remains. An uncomplimentary legend, base in its implications, cannot be ignored.

1. Ms. of George Wythe, July 10, 1755, Roberts Autograph Collection, Haverford College Library.

These recent defenders of Wythe's personal conduct have pointed out the probability that his distinctions in the House of Burgesses, success in the county courts, and appointment as Attorney General could not have come to a conspicuous degenerate or to any one of the greater-than-average self-indulgence &mdash; and that is in itself convincing testimony against the allegation. But its details alone are inaccurate enough to puncture this fabricated story, which supplies a motive by stating that an orphaned George came by inheritance on his twenty-first birthday into the unprotected control of a sizable fortune, that he squandered it in a prodigal fashion. Indubitable refutation of such assumptions has been given within this chapter in the fact that George Wythe became his father's heir, by the intestate death of his older brother, only when he was approaching the age of thirty. Wythe never possessed enough wealth to have suffered its enervating influence.

positive that Wythe lived moderately, observing faithfully the rules of contemporary conventions and the dictates of his own conscience. One of his friends admitted, about six years after his death, that he had had a "natural" tendency to "instability" but recalled that it had been held in check "with a tight rein".¹ Others spoke of his "truly laudable" conduct in a "private life ... spent in the practice of social virtues, and in the enjoyment of much domestic felicity ...",² described his virtue as "of the purest tint", and attributed his "general good health" to "temperance and regularity in all his habits."³ To one of the very biographers who contributed to the spread of the falsehood of Wythe's alleged dissipation Thomas Jefferson had given, together with some information designed to serve as "landmarks to distinguish truth from error, in what you hear from others", assurance that "the exalted virtue of the man will also be a polar star to guide you in all matters which may touch that element of his character", adding on second thought, "but on that you will receive [<u>sic</u>] imputations from no man; for, as far as I know, he never had an enemy."⁴

It has been shown by his own admission that George Wythe neglected during his third decade some opportunities for the improvement of his scanty education. Of this fault he was never again guilty. Demands of public or private business made incessant inroads upon his time, but nothing could prevent the penetrating study of a man who developed, after his professional career had been established, the genuine love of learning for its own sake which is so essential a foundation for scholarship. The loss of hours spent less beneficially was redeemed a hundred fold within the next fifty years.¹ Indefatigable in his application, he became noted for a solidity and penetration which none of his contemporaries surpassed. Breadth of interest, too, characterized his self-education. In his later years he was respectfully dubbed "the walking library".² And when he died someone reflected that "there was no art or profession of which he had not a correct idea."³

3. "[[Virginia Gazette, and General Advertiser, 18 June 1806|Communication]]" signed "A.B.", Virginia Gazette, and General Advertiser, June 18, 1806.

primarily on the acquisition of facts and principles recorded by the writers of ancient Greece and Rome. The handicap of inadequate formal schooling and of only preliminary grammatical study at his mother's knee meant nothing to him, though they had together been barely sufficient to let him realize how unqualified for progress he was. On his own initiative and with no other tutor than himself, he plunged deeply into a discriminating absorption in the classics.¹

Rather early in this study he procured a volume of blank pages, average in size, not unlike a typical eighteenth-century lawyer's commonplace book, in which he recorded minute notes of his personal [[Etymological Praxis|research in the etymology of Greek and Latin words]]. About 150 pages of his book, which has been preserved, contain his comparisons of Latin equivalents with the original Greek text of Homer's <u>Iliad</u> and with other Hellenic literature. No better monument to Wythe's patient burrowings in linguistics can be imagined than this private product of his explorations in the original meanings of words,

Homer's immortal tale of the fall of Troy, however, was only a beginning. Wythe's mind ran the gamut of Greek and Latin poets, historians, and philosophers; with all of these whose writings he could obtain he became as familiar as he was with any English author, reading them with equal ease.³ Thomas Jefferson spoke of him later without reservation as

1. [George Wythe, [[Etymological Praxis|An Etymological Praxis]]], Virginia Historical Society Library. This Ms. quarto volume has no title page and is undated; but Wythe's characteristic handwriting constitutes a positive means to identification. The writer is of the opinion, on the basis of penmanship comparisons with Wythe's letters, that it was definitely of a period before 1765. The last six of its unnumbered pages contain a copy of biographical sketches of John Holloway and William Hopkins, colonial Virginia lawyers who died in 1734, transcribed by some one other than Wythe from Sir John Randolph's "Breviate Book". A letter of transmittal to the Society is pasted to its front cover. "I herewith sent you, the book which I promised you for your Society. It was (as I informed you) the property of the late venerable and learned Chancellor Wythe, and I believe is altogether in his hand writing [<u>sic</u>], although the character of the copy from 'Sir John's Breviate Book' seems to be different from that of the Greek and Latin. Much of the largest portion of the book is a Clavis Όμηρου, or Etymological Praxis, on which several of the books of the Iliad, and some of the παχωίδία<ref>As Hemphill did not possess Greek characters on his typewriter, these characters were originally added to the [[Media:HemphillGeorgeWytheTheColonialBriton1937.pdf|dissertation]] in pen (18MB PDF).</ref> which will serve in a striking manner to illustrate the great industry of that distinguished man": [[John Page, Jr., to James E. Heath, 3 January 1834|John Page to James B. Heath, January 3, 1834]]. The existence of this Ms. has been previously commented upon only by Grigsby, [[Virginia Convention of 1776|<u>Virginia Convention of 1776</u>]], 120, who cited it as evidence that Wythe's accurate familiarity with Latin and Greek began in middle life. The two biographical sketches were reprinted in <u>The Virginia Historical Register</u>, I, 119-123.

"the best Latin and Greek scholar" in Virginia,¹ and a contemporary who was better qualified than Jefferson to pass judgment in literary matters asserted that his attainments in the classics had rarely been equaled in all the American colonies and states.² Or, as still another contemporary put it, he labored delightedly "not only through an apprenticeship, but almost through a life in the dead language."³ A rather recent figure in the world of American letters boasted that he owned a rare [[Anacreontis Carmina cum Sapphonis, et Alcaei fragmentis|1757 edition of the odes to Anacreon, Sappho, and Alcaeus]], which had once been in the library of George Wythe.⁴ If anything, he carried too far his love of ancient scholarship, which became increasingly as he grew older his pride as well as his joy. Conversation and correspondence he naturally enriched with quotations, but there is a limit at which the foible of classical quotation borders upon pedantry pure and simple. Any Wythe appears never to have hesitated to sprinkle even the most technical legal opinions and decisions with excerpts from his studies, to the utter consternation of less learned associates who could not

1. <u>Ibid</u>.; Cooke, "George Wythe", Manuscript Biographies Collection, Pennsylvania Historical Society Library. An excellent portrait in the lobby of the George Wythe Hotel, Wytheville, Virginia, pictures him at an earlier age than any other &mdash; apparently at about thirty-five. The [[George Wythe House|Wythe House]] in Williamsburg houses a handsome Turnbull [''sic''] semi-profile painting of a somewhat later date. A [[:File:Leney1807Wythe.jpg|full-profile by Longacre]], originally painted in the missing issues of <u>The American Gleaner, and Virginia Magazine</u>,<ref>The original portrait in the 1807 ''American Gleaner'' was created by [[:File:Leney1807Wythe.jpg|William Satchwell Leney]], not J.B. Longacre. Longacre's engraving is labeled as being based on "a Portrait in the American Gleaner," but was created for Sanderson's [[Biography of the Signers to the Declaration of Independence]], c. 1823.</ref> is definitely applicable only to Wythe's old age and is very widely available through engraved copies in publications and libraries. Mrs. Catherine Carter Critcher of Washington, D. C., a collateral descendant, presented to the Wythe House in 1927 an original oil painting done from the [[:File:LongacreWythe.jpg|Longacre model]]. In the Wythe House there is also a small circular profile, giving the impression of a semi-caricature, done by the famous elder Peale with the aid of an extinct "profilograph" invention. In Wythe's last years he became stooped and thin.

The legal profession in Virginia, as in England's other American colonies during the seventeenth century, was a casual or struggling one. Advocates were despised or regarded with suspicion; litigation ran uniformly along channels of the simplest actions in debt and trespass; and the practise of law was frequently a mere avocation by which untrained merchants and landowners protected their commercial interests. It was only after 1700 that the bar in Virginia began to bud with learned and respected names,¹ and it was not until 1750 that the bud blossomed into full flower. During the quarter-century preceding the end of the colonial regime lawyers developed in Virginia's General Court who were in every respect at least equal to the best produced in other colonies, if indeed the Virginia bar of that period was not distinctly superior to any of the others.²

The preceding chapter has shown that George Wythe was

admitted to practise in the General Court some time before May, 1755. For two decades or more the advocacy of causes before its bench, composed of the members of the Council with the lieutenant-governor or governor as presiding judge, furnished Wythe's principal income and his chief occupation. This supreme tribunal convened in Williamsburg only twice each year, in April and October, for sessions continuing about two weeks each; but long intervals between terms were not vacations for the scholarly Wythe, who had so much success in attracting clients that months of intensive research and preparation were required for him to do justice to them all.

Thomas Jefferson, who joined Wythe at this bar in its later days, pronounced him unqualifiedly as the greatest of its members during the second of the two decades in which Wythe practiced there, "taking into consideration his superior learning, correct elocution, and logical style of reasoning."¹ This could have hardly have been true of the ten years before 1765, for one could not leap suddenly into the leadership of such a company of legal giants. Though Wythe "soon became eminent among them", advance to priority over such colleagues could come only "in process of time."² Four men, only one of

The titular head of the group was Attorney-General Peyton Randolph. A son of the much respected Sir John Randolph, Peyton had been educated at William and Mary, Oxford, and the Inner Temple. His appearance was extremely gentlemanly, his manners friendly to all but strangers, his nature conciliatory; his mind was sound enough and his arguments substantial enough to counterbalance fully an utter lack of the arts and graces of eloquence. His frame carried some excessive weight, and the resultant physical inertness became characteristic of his mental habits &mdash; "he was rather indolent and careless for business, which occasioned him to get a smaller proportion of it at the bar than his abilities would otherwise have commanded." Beginning in 1748 he drew for some time a steady salary as the government's chief prosecutor, except for a year in which Wythe supplanted him; thus "he did not seem to court, nor scarcely to welcome business."¹

John Randolph (<u>b</u>. 1727), younger brother of Peyton, was another of the principal practitioners in the General Court. The advantages of experience in the Inner Temple, following an education at William and Mary, had also been his. Like his brother, he lived in Williamsburg, but in politics he was generally more conservative and a bit less distinguished than Peyton. During a large part of the latter's tenure as Attorney

1. Biographical Sketch of Peyton Randolph, Bergh, ed., <u>Writings of Jefferson</u>, XVII, 139.

Edmund Pendleton was a fourth lawyer who attained a dominant position at the bar of the General Court, and to investigators of Wythe's career he is much the most interesting colleague Wythe ever had. In all the history of Virginia there have never been two lives which presented so many striking parallels and contrasts as did those of Wythe and Pendleton. Throughout more than half a century in public service they were engaged almost incessantly in the same political, legal, and judicial activities. In a series of many issues which confronted them, however, they were rarely aligned on the same side of any question, and even in those instances they reached the same opinions by substantially diverse mental paths. Rivals for every kind of official preferment for fifty years, no genuine antipathy ever really existed between them, though each upheld tenaciously his principles against the other's attacks until the very day on which Pendleton preceded Wythe to the grave by three years. Theirs was an absolutely unique relationship, and its inherent drama was intensified by the fact that its similarities and conflicts became

of the legal profession. Two or three years later he became clerk of the vestry of St. Mary's Parish; his earnings as such he claimed to have devoted to the purchase of a few books, presumably law treatises, which he "read ... very diligently".¹ As his term of servitude to Robinson was approaching its conclusion, he gained his master's consent to enter the bar. In April, 1741, he received a license to practise after an examination by Edward Barradall,² and in the following month he was sworn as an attorney in Caroline.³ A year and a half later he was admitted with Zachary Lewis to plead causes before the Spotsylvania bench.⁴ It was probably in 1746 or 1747, at one of these two county seats, that Wythe first became acquainted with him. Pendleton had married a short time before he was quizzed by Barradall, but his first bride had died before a year elapsed, as did Ann Lewis Wythe.⁵ A few years later Pendleton married a second time, as Wythe was to do, and each of them survived his

3. Entry of May 8, 1741, <u>Order Book</u>, <u>1740-1746</u>, 42, Caroline County Record.

second wife by a number of years, dying without issue. In 1751 Pendleton became a judge of the Caroline court, and for many years he was its presiding justice, as Wythe was over that of Elizabeth City County. Pendleton became a burgess for Caroline in 1752, two years earlier than Wythe's promotion to the floor of the House from his clerkships to standing committee. His entrance to the bar of the General Court, however, preceded Wythe's by almost a decade, for he became an advocate before that bench in its October session of 1745.¹ His success there far exceeded that of any other practitioner who lived more than a few miles from Williamsburg.

to Elizabeth City County, Wythe wrote in the next year the following letter (which is the first from his pen now extant and available) to a client in northern Fairfax County:

Your suit agt. West is set for trial [on] the 10th day of [the] next [General] court. I have directed a subpoena to be inclosed, if Mr. [Edmund] Pendleton or Mr. [Robert Carter] Nicholas has not sent you one, for summoning your witnesses, since your adversary insists on a special verdict, in stead [sic] of the case intended to have been agreed last court. You may know of him I suppose what facts he desires to prove, and [to] which to agree.¹

In 1758² and again in 1760³ Wythe was co-counsel with Robert Carter Nicholas for Col. George Washington in matters relating to the latter's titles to certain tracts of land. A receipt given by Wythe in acknowledgment of payment for his services by another client indicates that he was business-like in his financial dealings: "Received Oct. 26th 1763 of mr Towles fifty shillings, my fee for defending the suit brought against

Wh[ereas] I am inform'd, that John Davis did this day suffer and permit, unlawful [<u>sic</u>] gaming in his house (being an ordinary [tavern]) contrary to the Acct [<u>sic</u>] of Assembly in that case made and provided &mdash;<br />These are therefore in his Majestie's [<u>sic</u>] Name to require before me or some other Justice for the said County to answer the [above] Premises [charges] Given under my hand this 10th day of September 1761 &mdash; <div align="right">George Wythe</div>To

:The Sheriff of Londoun

2. Ms. in the New York City office of The Rosenbach Company in December, 1936.

3. Londoun had been constituted a separate county in 1757. The only genuine Wythe autograph recalled by the writer to have been signed "George Wythe" (instead of the usual "G. Wythe") is that on the Declaration of Independence, which would be a counterfeiter's most available source.

A hint that Wythe met financial success in his General Court practise is given by two records of business transacttions in Elizabeth City County, which show that he had enough ready cash to expand his property by rent and purchase. His inherited lands were evidently deemed insufficient by him. Probably he found that his overseer could farm profitably a substantially larger territory than "Chesterville" afforded. Thus it was that he secured in 1760 from the trustees of the Syms Free School a lease under whose terms he was to have the use of all but one of the 200 acres left for the school by the will of Benjamin Syms. In addition to an annual rental of <s>L</s>30 5s, Wythe contracted to supply four milch cows for the use of the school several months each year, to plant an orchard of 100 trees, and to leave in good repair any buildings which he might erect on the leased land.¹ How many years he maintained this lease-hold is not a matter of record. In 1763, however, he added 40 acres by patent to those in he county which he owned outright.²

So far as is known, Wythe was constantly one of the lawyers at the bar of the General Court who were chosen to com pose the board of examiners for embryo attorneys. In this capacity there appeared before him early in 1760 a rather uncouth and unprepared young man, who had failed miserably in a merchandizing venture as he proprietor of a country store in upland Hanover County and had turned to the law because he might be able in that profession to secure remuneration for his ability to talk. His name was Patrick Henry. Through his application for a certificate attesting his qualifications and licensing him to practise in the county courts, Wythe undoubtedly received his first introduction to a man who was more than any other his total antithesis, and with whom he was to be upon no known occasion in anything approaching even a virtual agreement. Henry had read law for only a very short while, perhaps about six weeks, and promises of diligent future study on his part seem to have been necessary to secure the approval of some of his examiners. An impression that Wythe refused resolutely to sign his license has

prevailed without exception among Henry's biographers,¹ but a county court record disproves this misconception.² In his more vindictive moments Wythe may have later regretted his share in promoting young Patrick's entrance into the professsion in which Henry found himself.

Patrick Henry was not the only young man of large later influence who travelled to Williamsburg early in the year 1760. There was another, a mere lad of about seventeen years, in whom Wythe seemed to detect a greater, more solid genius and a more congenial personality than he had found in the illprepared applicant whose license he signed. The name of this rather freckle-faced, red-headed, and gangling youth was Thomas Jefferson.

stay and under circumstances more favorable than Henry's. His father, Peter, an outstanding colonial surveyor and a justice of Albemarle County, had died three years earlier, leaving "Shadwell" and a sizeable estate, though not quite enough to assure his son of independence from the necessity of becoming a breadwinner. His mother was a first cousin of the Randolph brothers, Peyton and John, and related to other socially prominent families of the eastern Tidewater. The advantages of adequate elementary instruction had not been denied him, and for the two preceding years his teacher in the classics had been Rev. James Maury, whose name is famous as an Anglican rector and more famous as Virginia's preeminent private tutor. With this superior background he enrolled early in 1760 as a student in William and Mary.

A few weeks before Jefferson took that momentous step he argued with himself, in a letter asking for his guardian's approval, the pros and cons of further formal study, foretelling accurately that "by going to the College, I shall get a more universal Acquaintance, which may hereafter be serviceable to me ...."¹ It was an intelligent prophecy; yet its

1. Thomas Jefferson to John Harvey, January 14, 1760, Bergh, ed., <u>Writings of Jefferson</u>, IV, specially printed on an insert between 268 and 269. An interesting picture of his feelings fifty years later along the same line is given in a letter of very paternal advice to a grandson. "When I recollect the various sorts of bad company with which I associated from time to time, I am astonished [that] I did not turn off with some of them, and become as worthless to society as they were. I had the good fortune to become acquainted with very early with some characters of very

First among Jefferson's significant and intimate friends outside the circle of his classmates was Dr. William Small (<u>d</u>. 1775), a Scot who held from 1758 to 1764 the professorship of mathematics and chair of science, which educators then usually designated natural philosophy.¹ In a faculty consisting largely of clerics, Small was the outstanding member. To Virginia he brought a reputation for thorough training in the learning of European universities, an extensive and costly experimental apparatus, and a very scholarly knowlede of the exact sciences. Previously educational studies in the colony had been confined almost exclusively to history, the languages, and other subjects classified among the arts. Small popularized among curious Virginians for the first time inquiries into the higher types of mathematics, into atronomy, and into physical principles;² his influence may be detected, for example, in the exciting attempts of William and Mary students and professors late in the century to make balloons ascend by suspending a fire under their open bottoms.

high standing, and to feel the incessant wich that I could ...become what they were. Under temptations and difficulties, I would ask myself what…will insure me their approbation? I am certain that this mode of deciding on my conduct, tended more to correctness than any reasoning powers I possessed": <u>id</u>. To Thomas Jefferson Randolph, November 24, 1808, <u>ibid</u>., XII, 197.

John Page, one of Jefferson's collegiate chums, fell completely under the spell of Small's enticing studies. He gloried in the subsequent renown of his illustrious professor as "the great Dr. Small, of Birmingham, the darling friend" of Erasmus Darwin, a British scientist who was Charles Darwin's grandfather, and he shifted his intellectual interest abruptly under Small's tutelage from military and naval history to mathematics and astronomy.¹ To American educational method Small made an epochal contribution by being the acknowledged pioneer in the introduction and by discarding for his purposes the typical textbook recitation.²

3. "Autobiography", Bergh, ed., <u>Writings of Jefferson</u>, I, 3.

elevated courses of study", and recalled that, "from an extraordinary conjunction of eloquence and logic", he had been able to teach his students "with great effect." "Dr. Small", Jefferson affirmed, "was … to me as a father. to [<u>sic</u>] his enlightened and affectionate guidance of my studies … at College I am indebted for every thing [<u>sic</u>]";¹ and upon another occasion the grateful pupil wrote: "He, most happily for me, became soon attached to me, and made me his daily companion when not engaged in the school; and from his conversation I got my first views of the expansion of science, and of the system of things in which we are placed."²

Wythe was Small's "bosom friend";³ they were "inseparable". And it was undoubtedly in reference to the fact that the professor procured for his pupil Wythe's "patronage" that Jefferson could look back upon his contact with the Scotch educator as the thing which "probably fixed the destinies of my life ...."⁴ For Jefferson graduated from the College in 1762, and Small returned to England two years later; but the young graduate's intimate association with Wythe continued for about two decades in actuality and was never interrupted in spirit until Wythe's death.

2. "Autobiography", Bergh, ed., <u>Writings of Jefferson</u>, I, 3.

There was also a third man whose friendship Jefferson valued much. By Small and Wythe Jefferson was introduced to Francis Fauquier,¹ a "highly enlightened" official who had come to Virginia as successor to Lieutenant-Governor Dinwiddie in the same year that Small had taken over a professorship in the College. He was a man of "much greater learning and judgment" than his predecessor, whose lack of education had prompted an artificial fondness for appearing to be a patron of learning.² To Fauquier, who was a fellow of the Royal Society of England,³ this role was utterly natural, not a thing to be simulated. After two or three years Fauquier's family gave up its residence in the colony, and he lived the life of a wealthy bachelor in the handsome Governor's Palace, which could thus be devoted unrestrictedly to almost any use his fancy might suggest, including informal weekly concerts by violinist Jefferson and several other amateur musicians.⁴

instruction";¹ again, he stated almost boastingly that these men "admitted me always to make it a partie quarrée" [<u>sic</u>] [<u>i.e</u>., party of four], observing in conclusion that "at these dinners I … heard more good sense, more rational & philosophical conversations than in all my life besides. they [<u>sic</u>] were truly attic [<u>sic</u>] societies."² Yet Jefferson, then about twenty years old, was in some measure entitled to exult over his acceptance on a basis approaching equality in the society of Fauquier, then about fifty-five, of Small, then about forty-five, and of Wythe, then about thirty-five; the disparity in ages is sufficient excuse for he pardonable vanity with which the youngest of the quartet told of their social and intellectual companionship. Just how long this association continued cannot be determined, though it would seem that all four met intermittently during 1761 and 1762.³ But there can be no doubt as to its benefits for the student Jefferson. Few facilities at any spot upon the globe could have equalled the opportunity for the acquisition of culture, for a liberal education, and for abstract lessons in the

1. "Autobiography", Bergh, ed., <u>Writings of Jefferson</u>, I, 4.

rights of man which Jefferson found in intimate acquaintance with this trio of inspiring elders. From Small, the experimental scientist, he might absorb that unquenchable thirst for practical knowledge in largely uncharted fields of natural science which was to find so many expressions in his public career and private life. Fauquier, the courtly and experienced man of the world, might instill in him the charms of cultured society, a taste for intellectual conversation, and the attributes of governmental authority properly administered. From Wythe, the self-educated but scholarly lawyer, he might derive a love of learning for its own sake, the logical method of approaching every problem with assurance that reason should prevail as the sole criterion for weighing its alternatives, and that familiarity with the great principles of jurisprudence and democracy which was to enable him to become a foremost reformer of American political and social institutions. His biographers without exception have rightfully extolled the influence of these three men upon their impressionable protégé; some of them are inclined to interpret him as but a disciple of the distinctive merits of cach, declaring that scarcely any phase of his exceptionally versatile interests cannot be traced to an origin in one or another of those with whom he chatted at Fauquier's table.¹

from William and Mary late in the year 1762. But liberal tuition under Dr. Small's inquiring guidance was supplanted by the great advantage of professional training under the capable eye of Wythe, who remained Jefferson's closest associate throughout all his formative years. In the thankful words of the young graduate himself, Small "filled up the measure of his goodness to me, by procuring or me, from his most intimate friend, George Wythe, a reception as a student of law, under his direction."¹ It has been remarked as curious that this opening should have been accepted by a kinsman of Peyton and John Randolph, either of whom might well have become his legal instructor.² Whatever the explanation of Jefferson's preference for Wythe, he never found cause to regret his choice &mdash; though those who think speculation on the "ifs" of history profitable might enjoy a perfect revelry of guess-work by applying their deliberations to the profound possible changes in the course of American development had Jefferson fallen directly under the influence of a conservative Randolph brain instead of Wythe's more progressive mind. For the next four or five years Wythe was to Jefferson what Stephen Dewey had been to Wythe some twenty or twenty-five years earlier; but the shoes of a legal mentor fitted Wythe

1. "Autobiography", Bergh, ed., <u>Writings of Jefferson</u>, I, 3.

better than they had Dewey, and his more inspiring instruction met a more grateful response in Jefferson.

For a year, however, the mind of the legal aspirant was sorely distracted from serious study by thoughts of a young lady, Rebecca Burwell by name, with whom he had fallen completely in love. Wythe saw to it that he had a copy of that admirable standard treatise upon which the bar of the day was nurtured, <u>Coke upon Littleton</u>. After preliminary perusal of its pages, the young graduate set out for a winter to be spent at his home in digesting more thoroughly the observations of Sir Edward Coke (1552-1634). Christmas found him a day's journey from "Shadwell" and in a very despondent frame of mind. He awoke that morning to find himself the victim of several overnight misfortunes, including the theft by rats of recently purchased sheet music of half a dozen minuets for his violin. Worse still, rain had seeped through a leak in the roof of his room and drowned his watch, whereby, as he expressed it, his timekeeper "had lost her speech". His ill-luck reached absolutely catastrophic proportions when, in an attempt to rescue from its place in the wet case of his watch his picture of the fair Rebecca, he tore irreparably the thoroughly soaked paper upon which hat priceless portrait had been reproduced. At a loss for any other adequate explanation, Jefferson attributed this almost unbearable series of calamities to a satanic curse upon him and eased his pain by writing to a chum, John Page, a comically pathetic description of these exaggerated mishaps and of his sad recollections of the gay friends from

And now, although the picture be defaced, there is so lively an image of her [Rebecca Burwell] imprinted in my mind, that I shall think of her too often, I fear, for my peace of mind; and too often, I am sure, to get through old Coke this winter; for God knows I have not seen him since I packed him up in my trunk in Williams burg. Well, Page, I do wish the Devil had old Coke, for I am sure I never was so tired of an old dull scoundrel in my life. What: are there so few inquie tudes tacked to this momentary life of ours, that we must need be loading ourselves with a thousand more? Or, as brother Job says, (who, by-the-bye, I think be gan to whine a little under his afflictions,) "Are not my days few? Cease, then, that I may take comfort a little before I go whence I shall not return, even to the land of darkness, and the shadow of death." But the old fellows say we must read to gain knowledge, and gain knowledge to make us happy and admired. Mere jargon! Is there any such thing as happiness in this world? No. And as for admiration, I am sure the man who powders most, and talks most nonsense, is most ad mired. Though to be candid, there are some who have too much good sense to esteem such monkey-like animals as these, in whose formation, as the saying is, the tailors and barbers go halves with God Almighty; and since these are the only persons whose esteem is worth a wish, I do not know but that, upon the whole, the advice of these old fellows may be worth following.¹

promise of entertainment or instruction as the outside of a gold mine does of the wealth within."¹ Jefferson formulated a tentative plan for returning to Williamsburg late in the spring of 1763;² it failed to materialize. But by mid-summer he was certain that he would be in the capital again when the General Court met for its October session.³ He had a report to make to Wythe on his progress in perusing Lord Coke, and of the privilege of hearing the instructive arguments of his mentor and other advocates before the colony's supreme tribunal he wished to take full advantage.⁴ But his objects in making the trip did not exclude social interests, for he had long anticipated the visit as an opportunity to press his suit for Rebecca Burwell's hand.⁵ En route eastward, he reflected in a letter from Richmond, "I do not like the ups and downs of a country life: today you are frolicking with a fine girl and tomorrow you are moping by yourself. Thank God! I shall shortly be where my happiness will be less interrupted." He was willing to confess high

hopes to his classmate, William Fleming:

But Jefferson had romantic, youth-like dreams, too, of fitting out a sailing craft as a means to cross the Atlantic for extensive European travels, and settling down in stable domesticity was an enviable goal which could wait the satiation of his wanderlust.² Thus, when he made upon two occasions the intended preliminary overtures to his Rebecca, they constituted at best only a conditional proposal.³ He had some months of anxious suspense,⁴ and when his answer was finally received late that winter, it came in the form of gossipy assurances that the lady who had won his heart would soon be married to another suitor. With more resignation than his previous ardent letters on the subject would have led one to expect in him he wrote to Fleming the following account of his

with regard to the scheme which I proposed to you some time since, I am sorry to tell you it is totally frustrated by Miss R. B's marriage with Jacqueline Ambler which the people here tell me they daily expect: I say, the people here tell me so, for (can you beleive [<u>sic</u>] it?) I have been so abominably indolent as not to have seen her since last October; whereupon I cannot affirm that I know it from herself; though [I] am as well satisfied that it is true as if she had told me. well the lord bless her I say! but S&mdash;&mdash;y P&mdash;&mdash;r is still left for you. I have given her a description of the gentle man who, as I told her, intended to make her an offer of his hand, and asked her whether or not he might expect it would be accepted. She would not determine till she she saw him or his picture.... (mind that I mentioned no name to her.) you say you are determined to be married as soon as possible: and advise me to do the same. no, thank ye; I will consider of it first. many and great are the comforts of a single state, and neither of the reasons you urge can have any influence....¹

To absorption in Coke's worthy treatise the jilted Jefferson turned as to a welcome analgesic. In a sense in which the term could not previously have been used, law became his mistress in 1764; he applied himself to the task of

Beginning in 1764 Jefferson usually spent his winters in Williamsburg, retiring each summer from the routine of "devilling" for Wythe and the tedium of stowing away in his memory or notes requisite gems of legal precedent to the less exacting, contemplative life of "Shadwell", his Albermarle County home. His closest friend in that section of the colony was his neighbor, Dabney Carr, who had attended William and Mary as one of his contemporaries. They were constant companions during the two or three hot months, and thereby hangs a heartwarming tale of the fidelity of man to man. Like Jefferson, Carr was studying law; both were mentally alert and clever, both devoted to reading. They were accustomed to go and each

morning to a rustic seat which they had constructed under a huge oak in a favorite and cool nook of the ancient forest, atop a small mountain some two or three miles from "Shadwell", and there to spend blissful days in meditative reading or earnest conversation. To commemorate the fellowship of those priceless hours, they entered solemnly into a compact that he who survived the other should bury the first to due under that oak which marked their haven. A few years later Carr married Jefferson's sister and was a colleague of his brother-in-law in the House of Burgesses, but he died in less than a decade, before he had been able to do much to perpetuate his name.¹ Jefferson, who had begun in the meantime to build upon that mountain, three or four hundred yards away, his matchless home, "Monticello", was true to the terms of their agreement; and the spot became in time also the place of his burial. To it thousands from every corner of the earth have made their pilgrimages, unaware of the faithfulness of him they honor to youthful vows with a chum that their wooded retreat should be forever hallowed with their dust as a symbol of the best in friendship.² Quite aside from the fact that the study and intelligent discussion in which Jefferson and Carr thus

indulged must have often included great legal principles, a sequel to the story of their summers together is of immense interest in Wythe's life, for when Jefferson was directing from abroad twenty years later the education of [[Peter Carr|Dabney Carr's son]], he counted it the highest possible earthly blessing that his nephew should be under the instruction of George Wythe.

Wythe's continued guidance and his own good sense led Jefferson after 1763 to revise drastically his jesting characterization of Lord Coke, that giant of British jursiprudence,¹ as a "dull old scoundrel". Coke's interpretation of the English constitution may have played a part in moulding his political thought. So far as the analogy was applicable to American institutions after 1789, he built his democratic party upon principles which correspond in a general way to Coke's; and when those principles began to lose their sway in the government of the United States, he ascribed their decline partially to the fact that Coke's textbook had been cast into virtual discard and that later legal generations had been reared upon the renowned [[Commentaries on the Laws of England|<u>Commentaries</u>]] of [[wikipedia:William Blackstone|Sir William Blackstone]],² whose really dull lectures at Oxford on the same materials were largely unsuccessful.

But it was not upon Coke alone that Wythe fed his pupil; Jefferson progressed early to less elementary studies. Doubtless he had access to Wythe's large library, and he certainly could command enough ready cash to purchase the books which he needed most. Thus he asked of a friend the loan of a compilation of English statutory law until he could procure a copy of his own.¹ There could be little superficiality about training in his mentor's law office; he learned there to look down with utter contempt upon a mere smattering of knowledge. The whole range of civil and common law passed under his review, and neither he nor his teacher was content till he had traced painstakingly every principle to its remotest origin in the Roman system or in the period when good King Alfred had ruled the Saxons. Among others, he explored the formidable treatise on ancient English laws written in Latin by [[De Legibus et Consuetudinibus Angliae|Bracton]], a contemporaneous interpreter of Magna Charta. The whole enormous volume of early and recent British jurisprudence, as recorded in texts and commentaries, in rude ancient tongues and in the modern vernacular, became Jefferson's possession.² When circumstances later in his life afforded him

2. "Autobiography", Bergh, ed., <u>Writings of Jefferson</u>, I, 4. <u>Cf</u>. the similar statement made in correspondence, "I became acquainted with Mr. Wythe when he was about thirty-five years of age. He directed my studies in the law, led me into business, and continued, until [his] death my most affectionate friend": Thomas Jefferson to John Sanderson, August 31, 1820, Jefferson Papers, Library of Congress.

That Jefferson did not relinquish under the exigencies of practise habits of thorough study is quite adequately indicated by his commonplace book, a manuscript volume of more than 300 pages which he filled with the results of his labors. Though it had long been known to exist among his preserved papers, partial appreciation of its value did not come until a dozen years ago.² Perhaps somewhat unfortunately, the date of its beginning cannot be exactly and indubitably determined. If Jefferson's memory be accepted as literally accurate after fifty years, he started to jot down its notes in 1764, upon completing his perusal of Coke's primer.³ Exhaustive research

on the question has failed to reveal any confirmation of that recollection; it can be established that only two-thirds of the volume was penned while Jefferson was a student or practitioner of law, and that nearly all of the remaining third was written in one or both of the years 1775 and 1776.¹ There is, however, no particular reason to doubt that Jefferson remembered well the time of the initiation of a book in the writing of which he spent countless hours. Yet, to be on the safe side, let it be assumed only that its first section was recorded some time before 1775 &mdash; it matters relatively little in the final analysis whether it was begun before or after 1767, for in either case the volume undoubtedly represents strongly Wythe's influence.

Whatever the dates of its synopses, the commonplace book shows that Jefferson, as a student or as an attorney, made a long series of abstracts from parts of three and four of Lord Coke's <u>Institutes of the Laws of England</u> and from the reports by William Salked, George Andrews, and Robert Raymond of decisions handed down within the last hundred years by judges of the King's Bench. In his reading of these materials

Jefferson ran the gamut of weighty opinions in complicated suits of inheritance and trespass, for masters' remuneration of their servants' misdeeds, and for debts contracted by wives without their husbands' knowledge. Extracting from these works all information which might prove serviceable to him in routine business, he wrote notes for reference on more than five hundred separate articles.¹ The succeeding section of the book, written between 1774 and 1777, was based, in keeping with Jefferson's growing interest in politics, upon more philosophical legal materials, including [[Historical Law-Tracts|Lord Kames' fourteen <u>Historical Law Tracts</u>]] (first published in 1758), [[Essay Towards a General History of Feudal Property in Great Britain|Sir John Dalrymple's <u>Essay towards a General History of Feudal Property in Great Britain</u>]] (London, 1757), and [[History of the Common Law of England|<u>Hale's History of the Common Law</u>]] (London, 1716). Studies in these works gave him confirmation for his theories regarding the natural rights of man and legal precedents for his program of a complete revision of Virginia's entire constitution and code just after the proclamation of her independence &mdash; a campaign in which Wythe was to be his closest associate and firmest ally.²

Early in the year 1770 a catastrophe struck the young lawyer with the typical suddenness and destruction of fire; "Shadwell" burned, and the ruinous flames enveloped nearly all his possessions. To his friend, John Page, he wrote this pathetic account of the accident:

I send you some nectarine and apricot grafts and grapevines, the best I had; and have directed your messenger to call upon major [Richard] Taliaferro for some of his. You will also receive two of Toulis's catalogues. Mrs Wythe will send you some garden peas.<br />

The character of the bar of the General Court during the final decade of its colonial existence underwent comparatively few significant changes. Robert Carter Nicholas dropped out of its rank and resigned his practise, for, as will be noted in another connection, he rescued in a self-sacrificial manner the office of Virginia's treasurer from less respected and less competent hands when a vacancy occurred in 1765. The reputations of Wythe and Pendleton, in relation to those of the two Randolphs, were constantly on the ascendancy, if there was any change at all in the ranking of its leaders; the two self-educated lawyers were more likely after 1765 to be named before their English-trained colleagues in contemporary enumerations of its personnel. But competition of members in the lower bracket was rather futile, despite occasional infusion of new blood in such talented persons as Jefferson and Patrick Henry.¹ Perhaps the most striking advance achieved by any of the older minor advocates was that of Thomas Mason (1733-1785), younger brother of the famous George Mason and a

former practitioner in the Middle Temple.¹ Though not unchallenged, the position of Wythe, Pendleton, and the Randolph brothers remained impregnable.

It may well be lamented that so little is known about the activities of these men in a court which was admittedly resplendent with the colony's ablest minds. Shafts of imposing logic and darts of illogical oratory must have rent the air of that old courtroom in the capitol building as &mdash; in the utmost efforts to win advantages over each other in the eyes on the gallery, jury, and members of the Council sitting in their judicial capacity &mdash; those giants of the bar mustered every legal precedent and stratagem they knew. Dockets and other papers of the court, with a few scattered exceptions, have met destruction of one kind of another in subsequent years, and it never had in the modern sense of the term an official reporter to record its proceedings. After his admission to its bar, however, Jefferson took notes on some of its principal cases which illustrated litigation arising exclusively under the colony's own enactments. Found among his papers by his executor, this manuscript was posthumously published.² Eleven suits, adjudged between the sessions of October, 1768, and October, 1772, inclusive, were included in his informal, uneven notations. For two of these he did not

1. Freeman H. Hart, "Thomson Mason," <u>Dictionary of American Biography</u>, XII.

name the lawyers for either party, but Wythe appeared as counsel for plaintiff or defendant in seven of the remaining nine cases which Jefferson thought worthy of brief memoranda; Pendleton argued in six, John Randolph in four, Thomson Mason in three. Judgment seems to have been given in favor of four of Wythe's clients and against two, with a verdict in the seventh case which awarded him the decision on one point involved in the suit and his opponents the decree on the other side of its issues. In one of these trials Wythe teamed with Pendleton to defeat a cause upheld by John Randolph and Thomson Mason, but in four of them Pendleton pleaded on the side opposite to Wythe, twice with John Randolph's assistance. These four ended in two victories for Pendleton and one for Wythe, with their laurels equally divided in that on which the court handed down two verdicts.¹ Though it must not be forgotten that they are tabulated from reports on only a small minority of the suits in that tribunal during that period, these figures are interesting as a sample which might or might not be representative if statistics were available for all. For the sake of enriching a later comparison between the two men on other observation must be mentioned: Pendleton was sole or associate counsel in each of the two cases which Wythe lost.

his appeals, to wrest from its context a single plea directed by Wythe to the court, for he was not addicted to useless declamation on points lacking pertinence to that at issue and the able train of his thoughts has probably suffered through Jefferson's condensation. Even in that compressed form, however, his debates retain uncommon lucidity and strength. For example, in one of his suits he undertook to prove that slaves were not subject to inclusion in the law of entails (by which inheritance was restricted under the primogeniture principle) unless they had been definitely, legally, and inseparably annexed to an entailed tract of land. His opponents who could not show such a connection for the slaves whose custody they sought to gain from his clients, attempted to plead that the slaves had been made to labor on that land and that their labor was therefore exercisable in it. Wythe retorted, "… this exposition of the word exerciseable is superficial indeed!" Then he reminded the court vigorously that the slaves were not exclusively limited to duties in that ground, citing a definition of "exerciseable" which Coke had given:

In another of his arguments he was forced to admit that, were judgment given in favor of his client, the result would be injurious to the opposing party, but he based his unsuccessful appeal upon the maxim that the considerations of public utility should be superior to resultant harm in individual instances, citing a Roman institution named Terminalia to this effect.² In another of his suits, his client had so much the best of the issue that the court awarded him the verdict before he had had an opportunity to answer the weak arguments of opposing council.³ In another, he was employed with Jefferson by the churchwardens and vestrymen of Upper Parish, Nansemond County, to prosecute their rector on charges of conduct unbefitting a wearer of priestly cloth and to secure the offending clergyman's dismissal. He proved by an interpretation of an act of the General Assembly that the

1. <u>Ibid</u>., 83-85

court had ecclesiastical jurisdiction, which he supposed was sufficient to show that the court possessed the power of depriving a cleric of his position. Jefferson feared that the right of deprivation might be a <u>non sequitur</u> and bolstered Wythe's argument by establishing that right on other grounds. Thus they won their cause together.¹ Illustration may be found in still another of Wythe's cases of his tendency to marshal an almost bewildering host of authorities in support of his views. In the course of an argument which Jefferson summarized in less than five printed pages Wythe's copious references included citations or quotations from four of Virginia's legislative acts, two British statutes, two English legal commentaries, two sections of Justinian's Roman code, a decision of an English court, and Cicero's orations.²

The court's usual progress in the settlement of the colonists' differences was interrupted with their own consent in 1766, for (as the next chapter will relate) nearly all Virginia's tribunals determined no cases in that year as a protest against a tax which England had levied upon legal documents. Evidence of the effect of their closure may be seen in his letter in February of that year to Richard Henry Lee, who had been trained for the bar but had preferred the life

of a planter in the northern Tidewater to that of a practitioner:

At the time I received your letter by col[onel] P[hilip]. L[udwell]. Lee I could not give it a satis factory answer, because the officers seldom make re turns of process so early in [the terms of] the court: and indeed the confusion which succeeded, with the total interruption of law proceedings, put that as well as most other matters of that sort out of my head. I am now at the secretary's office and find the second writ against J Rootes was not returned: and they will not let me have a pluries capias [a writ issued after two of the same purport have been successively issued without effect] til [<u>sic</u>] some thing is determined as to the stamps. The writs against Galloway were execu ted. One J Blackwell [posted] the bail for [his] appearance. The writ against Thornton was not executed; but a copy [of it was] left, so that we may have an attachment or a pluries capias awarded whenever we may be so happy as to see the course of judiciary business again open and free.¹

The protested bill of exchange you mention, drawn by mr Wm Thornton for 27-5-0 sterling, and endorsed by mr Galloway, is in my possession. The same day that I received it suit was commenced for mr Smith, who accepted the bill for the honour of the drawer. But partly by means of the stamp act, and partly by want of a sheriff in Brunswick [County] for some time, and the negligence of one who acted afterwards, it was so long before the process was returned executed that I cannot give you the satisfaction even of a conjecture when a judgment is to be expected. Mr Robb did speak to me on this subject, and desire me to prosecute the matter with expedition, and to acquaint him with the determination of it.

1. George Wythe to Richard Henry Lee, February 14, 1766, Lee Papers, University of Virginia Library.

George Washington continued to give Wythe the management of some of his legal affairs. In 1773 he wanted to buy from a certain William Black some lands in King William and King and Queen counties; the tract in the latter, variously called "Romonkocke" and "Woromoroke", he intended to present to a member of his wife's family, John Parke Custis. The difficulties which arose from that desire caused him much worry. Black stated his price, which Washington rejected, offering counter-proposals.³ When Black accepted these terms, Washington demanded of Black that all papers which proved the legality of Black's ownership of the two properties should

1. George Wythe to Richard Henry Lee, March 31, 1768, <u>ibid</u>.

I expect all the Papers respecting your Title to the Lands I purchased [agreed to purchase] of you will shortly be in Mr. Wythe's possession when he will be satisfied whether your Title is good or not and if he thinks you have a good title he will draw [up] a proper conveyance … [which you may sign to make the transaction final].¹

Wythe's report on the legality of the title was sent to Washington, but in the formal manner of an impersonal legal document it avoided the use of the pronoun "you" by referring to him as "Col. Washington". It is almost wholly unintelligible, no matter how carefully it is read and reread. Under even the best of conditions abstracts tracing the validity of real estate titles are involved enough to demand real study. In the case of this summary of Black's claims information essential to an understanding of its details is lacking. But the paper illustrates forcefully the thorough research required of Wythe in one phase of his practise. For that reason &mdash; and because every available item from his pen for the period under consideration is quoted in these pages &mdash; the document is reproduced herewith:

Col. Washington seemed to be satisfied as to the King &amp; Queen lands, which belonged to M^<u>r</u>. Story, without inquiring into the title before the date of his Will in 1717, if the title be regularly deduced from him. I think by the Will the estate devised to the daughter was a contingent fee, determinable by her death, without leaving issue or without having alien ated, so that the estate in fee, limited upon that event by executory devise, as she survived her child, and had made no alienation, took effect, and was well

M^r. Robinson, by a deed to him from Thomas Hickman and Barbara his Wife, 14^th Jan^y. 1734 purchased 600 Acres of Land adjoining Wyatts, sold to Story; Whether this be part of the Land agreed to be sold by Mr. Black to Col. Washington I know not, neither have I seen any other paper concerning it. the deed from Hickman, if he had a title, I think a good conveyance &mdash;

By act of general Assembly, [in the] 10[th year of the reign of King] Geo. the 3'd, some land in King and Queen County, purchased of Richard Johnson by M^r. Robinson, who with others claiming under him were in possession, was vested in William Lyne and some other Gentle men, in trust, to convey to such persons as claimed under M^r. Robinson, with a saving of the Titles of all persons other than those claiming under the will of a Testator who had devised to Richard Johnson the seller: whether the part reserved by Mr. Robinson be included in the Land agreed to be sold by M^r. Black; Whether the testator had a good title; or whether the Trustees have conveyed to M^r. Robinsons [<u>sic</u>] adm[inistrat]ors the part so reserved, which I think they the Adm[inistrat]ors were intitled [<u>sic</u>] to as a resulting trust, I can give no opinion, having seen no papers relating to these Matters.

If Romonkocke be part of the 1683 acres purchased by col: Bernard Moore from M^r. William Claiborne, &amp; from M^r. Robinson, who it seems derived his title from the Claibornes, as I suppose it is; and if Claibornes [<u>sic</u>] title be good, which I understand Col. Washington was satisfied with, and be properly deduced to Col. Moore, as, from what M^r. [Bartholomew] Dandridge says of the Wills of N Claiborne the Father and Son, and from his abstracts of the conveyances from the heir and Executors of the Claibornes, to Robinson, and from Robinson to Moore, I am persuaded it is; yet I am apprehensive there is still a chasm, having in vain searched in the Secretary's office for a Conveyance from M^r. Robinsons [<u>sic</u>] administrators, who had B. Moore's title, to M^r. Black: but this unquestionably may be supplied. I have the conveyance from Carter Braxton, T. Walker, T. Jefferson and Power to W. Black which is recorded in the Secretary's Office, but, without conveyances leading to it, [it] is insignificant.

Col. B. Moore's title being allowed, M^r. Blacks title to the 550 acres called Gooch's seems unexceptionable.¹

Having thus assured himself that Washington would be purchasing lands whose titles were irrefutable, Wythe drafted a deed by which the intended transfer of ownership might be made. But Black refused to sign that conveyance until Washington complied with stipulations which he added unexpectedly to their verbal contract.² In the dilemma thus created by the recalcitrant Black, Washington turned to Wythe for advice as to his method of procedure,³ and the whole tangled maze was straightened out in the space of a few months with Wythe's

2. Bartholomew Dandridge to George Washington, December 30, 1773, <u>ibid</u>., 297-300.

aid.¹ When Custis was planning several years later a sale of that portion of the property which Washington had acquired from Black and given to him, he asked for a general warranty of the validity of his title; Washington declined to make so sweeping a commitment, but he gave assurance that he had bought the land only "after having the title full investigated by Mr. Wythe"² &mdash; a reply which showed his perfect confidence in his lawyer. Wythe's word on that question had apparently allayed his doubts once and for all.

Another of the prominent Virginians in the northern part of the colony who is known to have been among Wythe's clients was Robert Carter of "Nomony Hall", a member of a thoroughly aristocratic family and a Councillor. As such, he was <u>ex officio</u> a judge in the General Court and thus in a position to know well the abilities of the lawyers at its bar. In 1772 Carter asked Wythe to secure a review by the Court of a permit granted by a county court to an applicant who desired to build a mill in a place which would injure some of Carter's property in Frederick County.³ Two years later he seems to

1. George Washington to William Black, January 17, 1774, <u>ibid</u>., 176-179; Bartholomew Dandrige to George Washington, February 16, 1774, Hamilton, ed., <u>Letters to Washington</u>, IV, 327-329; <u>id</u>. to <u>id</u>., April 2, 1774, <u>ibid</u>., 365-366; William Black to <u>id</u>., April 25, 1774, <u>ibid</u>., 375.

2. George Washington to John Parke Custis, May 26, 1778, FitzPatrick, ed., <u>Writings of Washington</u>, XI, 456.

3. "Dear Wythe, A few days ago I receiv'd a Letter dated 14^th. of last month, (September) subscribed John Hough, who is my Steward &mdash; part thereof is in these words 'Parson Charles Mynes Thruston in Frederick is erecting a Mill on the Line near thy Conveniency of Shenadon Tract, has

obtain'd an Order of Court to condemn & by a Jury has condemned an Acre to cut his Tail-Race through &mdash; This I apprehend is not accord[in]g to Law as the Line crosses the Stream &mdash; this Breach will greatly interfere with y^<u>r</u> Conveniency &mdash; This Hint I thought [it] was proper to communicate &mdash; J: Hough.' The Conveniency spoken of in the above Quotation, belonging to me, is a rich tract of Land lying in Frederick County contain^g about 5 thousand Acres, and a very ordinary Mill thereon &mdash; there are several Families now living on that Tract who pay Rent to me, that Part whereon the mill is erected, is not rented, [I] having often refused to rent the same, intend^g to erect mills for different Purposes there. I think that a writ shou'd be issued immed:^<u>ly</u> toward obtain:^g an Enquiry, in the Gen^l. Court touch^g the Propriety or Impropriety of the Order of Frederick Court, granting Leave for M^r T&mdash;[hruston] to build a mill &mdash; I will go myself up to Frederick County next spring and if the [people of the] Neighbourhood there really want a Grist-Mill, I will order one to be built, provided the Order of Court mention'd above shall be set aside &mdash;  The Indisposition of several of the Children, &amp; three upper Serv^ts. I apprehend will confine me here sometime, pray present my Compliments to L^<u>d</u> Dunmore and all the Gentlemen Attendants, who shall attend the approach^<u>g</u> Term [of the General Court, from which I must absent myself], I am, Dear Wythe, Your....": Robert Carter to George Wythe, October 4, 1772, Robert Carter papers, Duke University Library

The other, addressed to an emigrant from Virginia into Orange County, North Carolina, gives counsel as to a legal problem in Wythe's native county, acknowledges receipt of a paper for use in a case before the General Court, and approves his client's course of action in the more southern colony:

I have not been to Hampton since I wrote you. I purpose to go thither in a few days, and will then endeavour to get further information concerning mr Bloomfield's negros [<u>sic</u>]. The next of kin have now a right to the administration. but it seems to me that, unless they appear here, it cannot be committed to them; neither can it I be [<u>sic</u>] beleive [<u>sic</u>] be regularly committed to another in trust for them; neither will the court, in my opinion, without a suit, compel the persons in possession to deliver the negros [<u>sic</u>] to their agent. so that I would advise you, for the rea son you mentioned before, to procure what is necessary to support the claim of the heir. The bill you sent me

1. George Wythe to Robert Carter, July 2, 1774, Autograph Collection of the Signers of the Declaratino of Independence, J. Pierpoint Morgan Library.

2. George Wythe to Thomas Adams, September 6, 1774, Miscellaneous Manuscripts Collection, Virginia Historical Society Library.

will enable me to form one in the suit of mr. Hamilton against Armstrong in the general court. The mode of procedure [sic] you are pursuing in Carolina seems very proper.¹

Three extant petitions to the General Court throw a little additional light upon the activities of Wythe at its bar. Frederick County had a sheriff in 1765 named Jacob Hite, who was assisted voluntarily in the collection of taxes by Achilles Foster. Hite sued Foster for the whole value of the levies in one precinct of the county and secured a judgment in the local court against Foster. The latter petitioned the General Court in or about 1769 for a retrial before its bench. The body of the petition was written by Pendleton; below it contains Wythe's signature in testimony of the fact that Foster had sworn the accuracy of its allegations against Hite and against the previous trial. It pointed out enough irregularities to secure the issuance of a writ of certiorari to remove Foster's case from the inferior court to the supreme one. On the petition Wythe penned very briefly an order to that effect, which was signed by three of the judges.² One Solomon Redmon protested that a permit secured by Edward Sanford from the Westmoreland County court to build a mill endangered unlawfully his mill and begged that the order of the inferior

1. George Wythe to Thomas Burke, August 9, 1775, Roberts Autograph Collection, Haverford College Library. A facsimile of this letter is in the New York Historical Society Library.

court in Sanford's favor should be reversed by the General Court. At the bottom of this petition Wythe wrote and signed an opinion that the county court had been in error, and in his hand also appears above signatures of three General Court judges an order suspending by a supersedeas the execution of Sanford's permit, pending a formal rehearing in the upper tribunal.¹ Similar to the former of these two petitions was that made by John Randolph in 1773, by which he sought to secure a removal from Charlotte County's court to the General Court of a case in which he was sued. The writ of certiorari to effect that shift in the location of the trial was granted, but on the back of the paper is a notation in Wythe's handwriting which indicates that he had served as Randolph's attorney in the presentation of the petition:

It is agreed that the certiorari shall not be made use of if the plt will enter into a rule to refer the mater in dispute to mr Treasurer [Robert Carter Nicholas] & col Nelson with [a grant of] power to [them to] choose an umpire [a third party, in the event they could reach no decision between themselves] & make their award before the end of March  

It is probable that several young men studied like [[Thomas Jefferson|Jefferson]] in George Wythe's law office. Extant records, however, tell of only a few others. But because he was to become, as Jefferson did, an intimate friend and associate of Wythe, interest attaches to the experience of one of these in legal study. He was [[St. George Tucker]], a Briton who left his home in the colony of Bermuda to attend [http://www.wm.edu/ William and Mary College] in 1771.³ In mid-summer of the next year his father discussed in a letter to him the possibilities of preparation in Virginia and in England for a career at the bad. Tucker had