Traces of History — Cart B4 The Horse

George Wythe would never be mistaken for handsome. He had a hawk-like nose and a badly receding hairline, and he was so slight it seemed that a stiff wind would blow the man down. Painter John Trumbull drew Wythe (pronounced like the word “with”) from life, traveling down to Williamsburg, Virginia for the sitting. Then he put the old man – who was all of 50 – at the far left edge of his canvass, where a frame might hide him in the famous portrait The Declaration of Independence. Patriot George Wythe has been marginalized by history ever since.

Yet Wythe was among the first seeking independence from Great Britain, and long before the age of abolition, he set himself against the prevailing wisdom, arguing that black men held the same natural rights as all others. Wythe not only signed the Declaration of Independence, but the other Virginia signers deliberately left space above their own names for him to lead their delegation. Later Wythe turned the tide in Virginia in favor of ratification of the Constitution. The first law professor in America, Wythe strongly influenced the first generation of American patriots, teaching later U.S. presidents Thomas Jefferson and James Monroe, U.S. Chief Justice John Marshall, and Secretary of State and U.S. Sen. Henry Clay, author of the Missouri Compromise.

Most Americans remember the bellicose Patrick Henry, whose oratorical ability and outrageous conduct overshadowed Wythe in the courtroom and the legislature. But it was Wythe the people trusted and chose to attend the Continental Congress, and it was Wythe who argued for the federal Constitution while Henry opposed it.

Wythe was born in 1726 in Elizabeth City County in what is now Hampton, Va. His planter father died shortly afterward, and Wythe’s mother taught the boy, giving him a lifelong love of learning. He read law with his uncle and began to practice in 1746. At Christmastime that year, Wythe married his partner’s daughter, Ann Lewis. He was heartbroken when she died eight months later.

Wythe’s clientele included the family of Martha Custis, who married George Washington, and an heir of the founder of the College of William and Mary. When the well-known jurist Peyton Randolph went to England as an agent for Virginia, Wythe filled in as attorney general. In 1754 Williamsburg elected Wythe to the House of Burgesses and Wythe married Elizabeth Taliaferro (pronounced Toliver), whose architect father built them a splendid house in Williamsburg which still stands.

The College of William and Mary, where the quiet, academic Wythe felt most comfortably socially, elected him to the House of Burgesses a second time in 1758. Soon Wythe acquired a reputation for honesty and integrity, and his colleagues elevated him to positions of trust in that body.

Wythe and his neighbor, Governor Francis Fauquier, became close friends. Together with Professor William Small, the men met frequently for dinner, which in 1760 began to include the scion of an old and distinguished Virginia family, Thomas Jefferson, then 20. These evenings, Jefferson later said, contained “more good sense, more rational and philosophical conversations, than in my life beside.”

In fact, Jefferson lived with Wythe and studied law under him for the next five years. “Mr. Wythe continued to be my faithful and beloved mentor in youth,” Jefferson said later, “and my most affectionate friend through life.”

Wythe bequeathed Jefferson his personal library, a collection that, together with Jefferson’s own, seeded the Library of Congress with 6,487 volumes after the British burning of Washington in 1814 destroyed the original. Wythe and the other older men could not have failed to make an impression on the future president, who became steeped in their ideas of the Age of Enlightenment. These included ideas echoed in the Declaration of Independence: John Locke’s concept of the natural rights of man – life, liberty and property – and Rousseau’s belief that government derives its power from the consent of the governed.

When Patrick Henry, a failed businessman who had scarcely prepared for a career in law, presented himself as a candidate for the Virginia bar, Wythe refused to sign his application. Henry, whom Jefferson called “the laziest man in reading I ever knew,” nevertheless gained his license. This opened a period in which the outrageous Henry, playing to the crowd, shouted out the reasoned approach of Wythe. In 1763 Wythe opposed Virginia’s Two-Penny Tax affecting the pay of ministers, but as a judge he upheld the legislature’s right to levy it. That December as a lawyer, he defended the unpopular tax and lost to Henry at trial. Henry all but called King George III a tyrant in the courtroom, prompting calls of “Treason!” and winning himself instant celebrity.

After the French and Indian War, the British government began to demand things of the colonies that it had never done before. Parliament prohibited settlement west of the Appalachian Mountains and began to tax the colonists directly to help pay the costs of the war in America. The Sugar Act affected merchants and bootleggers primarily, but a pending proposal to tax all things paper placed a burden on everyone in the colonies, raising objections from all quarters.

In the autumn of 1764 Wythe was named to a special committee of burgesses to draft an address to the king, a memorial, and a remonstrance, or objections, to the Stamp Act for King George III and Parliament. Wythe wrote the remonstrance, which many of his colleagues thought was almost treasonous. The document first set forth the principle that “it is essential to British liberty that laws imposing taxes on the people ought not to be made without the consent of representatives chosen by themselves . . .” In other words, it said, “No taxation without representation.” Wythe further warned that “British patriots will never consent to the exercise of anti-constitutional power, which even in this remote corner may be dangerous in its example to the interior parts of the British empire . . .”

After the fighting at Lexington and Concord, Wythe went to Philadelphia as a Virginia delegate to the Second Continental Congress. “In what character shall we treat (with England)?” he asked the body. “Why should we be so fond of calling ourselves dutiful subjects? We must declare ourselves a free people.” Wythe approved Jefferson for the committee to draft the Declaration of Independence, and it was Wythe who moved that his former pupil Jefferson, Benjamin Franklin and Silas Deane be sent to France, the first ambassadors of a newly declared republic.

Though willing to fight the British, at 50 years old Wythe was well beyond the age of bearing arms. He returned to Williamsburg to serve his state, though capture, imprisonment, the loss of his property and possibly his life were always a threat. Wythe helped George Mason draft Virginia’s constitution. He served with Jefferson, Mason and Edmund Pendleton on the committee to revise the state’s colonial laws. He was one of two men who created the state seal, with Virtue triumphant over Tyranny and the motto “Sic Semper Tyrannis” – Thus Ever to Tyrants – made infamous by John Wilkes Booth, who yelled it in Ford’s Theater immediately after shooting President Lincoln.

When Jefferson became governor of Virginia in 1779, he appointed Wythe the first professor in the new law department at William and Mary. Later he served in various judicial roles, including the state supreme court.

In Marbury vs. Madison (1803), Chief Justice John Marshall enunciated the doctrine of judicial review, strengthening the checks and balances of the three branches of government. “It is emphatically the province and duty of the judicial department to say what the law is,” Marshall wrote. In doing so, he simply followed the lead of his mentor. Wythe had set the standard for judicial review in 1782 as a member of Virginia’s supreme court in the case of Commonwealth vs. Caton. In that opinion, Wythe stated, “If the whole legislature . . . should attempt to overleap the bounds prescribed to them by the people, I, in administering the public justice of the country, will meet the united powers at my seat in this tribunal and, pointing to the constitution, will say to them, ‘Here is the limit of your authority; and hither shall you go, but no further’.”

Wythe, a delegate to the Constitutional Convention in 1787, was forced to come home when his wife became terminally ill. However, he was instrumental in obtaining his state’s slim vote in favor of the Constitution in 1788, making his arguments when ratification by the necessary ninth state was still in doubt. Without Virginia, the most populous state, the Union which the document represented would have looked much different.

Wythe was no less an advocate for individual liberty than he was for national independence. As judge of Virginia’s Court of Chancery, Wythe ruled that the state’s 1776 Declaration of Rights included African Americans among the “all men” born free.

He ruled that “they should be considered free until proven otherwise.” The brave decision was overturned on appeal. Wythe freed several of his slaves after his wife died in 1787 and conveyed others to his wife’s relatives, and he made bequests to his former slaves Michael Brown and Lydia Broadnax.

Wythe’s nephew, George Sweeney, who had forged his uncle’s signature to checks he had cashed and who perhaps hoped to speed his own inheritance, poisoned Brown and Wythe in 1806. Brown died shortly afterward, but the old man lingered for two weeks, long enough to discover the forgeries and revise his will. Indicted for murder, Sweeney escaped trial because the evidence was circumstantial and Broadnax, the cook, who may have seen the poison applied, was not allowed to testify because she was African American.

In his notes for a biography of Wythe, Jefferson employed his knowledge of classical history, comparing his mentor to Cato the Younger, a Roman patriot known for his integrity and defense of the Roman Republic against the perceived tyranny of Crassus, Pompey and Julius Caesar.

“No man ever left behind him a character more venerated than George Wythe,” Jefferson wrote. “His virtue was of the purest tint; his integrity inflexible, and his justice exact; of warm patriotism, and, devoted as he was to liberty, and the natural and equal rights of man, he might truly be called the Cato of his country.”

Sources

Brown, Imogene E. American Aristides: A Biography of George Wythe. Fairleigh Dickinson University Press, 1981.

Fineberg, Gail. “Thomas Jefferson’s Library: Library Reconstructs, Displays Founding Collection.” Library of Congress information bulletin, Vol. 67, No. 6. http://www.loc.gov/loc/lcib/0806/jefferson.html. Online June 2008. Acquired 10 July 2012.

“George Wythe.” The Colonial Williamsburg Official History Site. http://www.history.org/almanack/people/bios/biowythe.cfm. Acquired 20 August 2011.

“George Wythe.” The Society of the Descendants of the Signers of the Declaration of Independence. http://www.dsdi1776.com/signers-by-state/george-wythe/. Online 11 December 2011.

Acquired 15 April 2016.=1822&mode=small&img_step-

Jefferson, George. Letter to Thomas Jefferson, 22 July 1806. Massachusetts Historical Society: Online Collections. http://www.masshist.org/database/viewer.php?item_id=1822&pid=3

Jefferson, Thomas. Memoirs, Correspondence and Miscellanies, Volume I. Charlottesville: F. Carr, and Co., 1829. http://www.archive.org/stream/memcorrmisc01jeffrich. Acquired 26 August 2011.

“The Remonstrance to the House of Commons.” Wythepedia: The George Wythe Encyclopedia. http://lawlibrary.wm.edu/wythepedia/index.php/Remonstrance_to_the_House_of_Coimmons. Online: 20 March 2016. Acquired 20 April 2016.