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Examinations of George Wythe Swinney for Forgery and Murder

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{{DISPLAYTITLE:"Examinations of George Wythe Swinney for Forgery and Murder: A Documentary Essay"}}
[[File:WilliamAndMaryQuarterlyOctober1955Wythe.jpg|thumb|right|400px|Engraved portrait [[George Wythe]] by [[Depictions of Wythe|J.B. Longacre]], from the ''William and Mary Quarterly,'' 3rd ser., 12, no. 4 (October 1955), 512.]]

Wythe scholar W. Edwin Hemphill contributed to a special issue of ''The William and Mary Quarterly'', dedicated to the murder of [[George Wythe]], in October, 1955. The issue was published in accordance with the Marshall-Wythe celebration at the [http://law.wm.edu/ College of William & Mary Law School] on September 25, 1954, for the bicentennial of [[John Marshall|John Marshall's]] birth. The journal pairs Hemphill's essay on "[[Media:HemphillExaminationsOfGeorgeWytheSwinneyOctober1955.pdf|Examinations of George Wythe Swinney for Forgery and Murder]],"<ref>W. Edwin Hemphill, "Examinations of George Wythe Swinney for Forgery and Murder: A Documentary Essay," ''William and Mary Quarterly'' 3rd ser., 12, no. 4 (October 1955), 543-574.</ref> with another by [[wikipedia:Julian P. Boyd|Julian P. Boyd]], "[[Murder of George Wythe]]."<ref>Julian P. Boyd, "[[Media:BoydMurderOfGeorgeWytheOctober1955.pdf|The Murder of George Wythe]]," ''William and Mary Quarterly'' 3rd ser., 12, no. 4 (October 1955), 513-542.</ref> Hemphill had rediscovered witness testimony given for [[Death of George Wythe#Sweeney's Trial|Sweeney's murder trial]] in 1806, and both authors made use of this new information.

Hemphill and Boyd's work was published as a pamphlet reprint the same year, under the title: [https://catalog.swem.wm.edu/law/Record/343766 ''The Murder of George Wythe: Two Essays''] (Williamsburg, VA: [https://oieahc.wm.edu/ Institute of Early American History and Culture,] 1955).

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==Article text, October 1955==
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'''Examinations of George Wythe Swinney<br />for Forgery and Murder: A Documentary Essay'''<br />W. Edwin Hemphill*
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“I SHUDDER when I think of it." Thus wrote [[wikipedia:John Page (Virginia politician)|John Page]] three weeks after the death of [[George Wythe]] in Richmond on June 8, 1806.<sup>1</sup> Less than a year and a half had elapsed since a "numerous concourse" of Jeffersonian Republicans had gathered at the Washington Tavern in the capital on March 4, 1805, to celebrate the second inauguration of [[Thomas Jefferson]] as the President of the United States. On the joyous occasion of the party's victory banquet Governor Page had asked Judge Wythe to retire and had then proposed a volunteer toast to "George Wythe, distinguished alike for his wisdom and integrity as a magistrate, and his zeal and disinterestedness as a patriot." The tavern's hall had resounded with nine cheers—as many as were given in response to any prearranged or spontaneous toast, even that to the President himself.<sup>2</sup> Nine months later Page had retired from the governorship.

As he sat at his writing desk late in June, 1806, amid the peace and security of [http://www.rosewell.org/ "Rosewell,"] his magnificent home in Gloucester County, [[wikipedia:John Page (Virginia politician)|John Page]] reflected upon the saddening, disheartening news he had heard during a recent trip to Richmond. [[William DuVal]], George Wythe's nearest neighbor, had told Page how their mutual friend had suffered and had died—and how very suspect certain circumstances preceding that death seemed. But nothing had yet been proved. So the circumspect Page scribbled to another friend an outburst that was more a sermon than a digest of the evidence. "I know only enough" about the "horrid tale," he remarked in his letter to St. George Tucker, one of Wythe's students and the judge who had succeeded Wythe in the chair of law in the College

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* Mr. Hemphill is Managing Editor of ''Virginia Cavalcade'' and a member of the staff of the Virginia State Library. These depositions were discovered by Mr. Hemphill and are now printed for the first time in this issue of the ''Quarterly''.

<sup>1</sup> John Page to [[St. George Tucker]], Jun. 29, 1806, Tucker-Coleman Papers, Colonial Williamsburg.

<sup>2</sup> Richmond ''Enquirer'', Mar. 8, 1805.
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[[File:BoydHemphillMurderOfGeorgeWytheTwoEssays1955.jpg|thumb|right|400px|Title page from Boyd and [[Examinations of George Wythe Swinney for Forgery and Murder|Hemphill's]] pamphlet reprint, [https://catalog.swem.wm.edu/law/Record/343766 ''The Murder of George Wythe: Two Essays''] (Williamsburg, VA: Institute of Early American History and Culture, 1955).]]
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of William and Mary, "to shock my Soul." But the former Governor could not forbear comment along other lines. The murder of Chancellor Wythe, he exclaimed, made him "feel for humanity—and the wounded honor of my Country!"<sup>3</sup>

[[wikipedia:William H. Cabell|Governor William H. Cabell]], Page's successor, was also distressed. He reminded one of his sisters-in-law of their experience when they had visited a Miss Nelson, who had then been living in the modest Richmond home of her uncle, the widowered, scholarly Chancellor. "She and all of us were almost children, and few grown men would have found any interest in staying in the room where we were. But the good old gentleman brought forth his philosophical apparatus and amused us by exhibiting experiments, which we did not well comprehend, it is true, but he tried to make us do so, and we felt elevated by such attentions from so great a man."<sup>4</sup>

The up-and-coming [[wikipedia:William Wirt (Attorney General)|William Wirt]], who had served for a year in a judicial office coordinate with that of the victim,<sup>5</sup> wrote from Norfolk to [[wikipedia:James Monroe|James Monroe]], who was abroad, in indignant terms about the "dose of arsenick administered" to "poor old Chancellor Wythe."<sup>6</sup> Five weeks later Wirt could assure his absent wife, "I dare say you have heard me say that I hoped no one would undertake the defence of [the accused, George Wythe] Swinney, but that he would be left to the fate which he seemed so justly to merit."<sup>7</sup>

The editor of a Richmond newspaper was upset enough to describe his news announcement of the death as a "painful task."<sup>8</sup> An editor in Raleigh, North Carolina, was told "by a gentleman lately from Rich-

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<sup>3</sup> John Page to St. George Tucker, Jun. 29, 1806, Tucker-Coleman Papers.

<sup>4</sup> William H. Cabell to Mrs. William Wirt (undated), quoted in John Pendleton Kennedy, ''[[Life of William Wirt#Page 151|Memoirs of the Life of William Wirt, Attorney General of the United States]]'' (Philadelphia, 1849), I, 151-152. Hereafter cited as Kennedy, ''William Wirt''.

<sup>5</sup> Ambitious for wealth, Wirt found his position as judge of the Superior Court of Chancery for the Eastern District irksome, its salary barely adequate in view of his second marriage, which took place in September, 1802. It "is possible," he observed wryly, "that I may, like Mr. Wythe, grow old in judicial honors and Roman poverty. I may die beloved, reverenced almost to canonization by my country, and my wife and children, as they beg for bread, may have to boast that they were mine." [[Life of William Wirt|William Wirt to Dabney Carr]], Feb. 13, 1803, ''ibid.'', 95. In May, 1803, Wirt returned to the practice of law as an attorney, with his residence and headquarters in Norfolk. ''Ibid.'', 87-101.

<sup>6</sup> William Wirt to James Monroe, Jun. 10, 1806, Monroe Papers, vol. XI, no. 1373, Library of Congress.

<sup>7</sup> William Wirt to Elizabeth Gamble Wirt, Jul. 13, 1806, Kennedy, ''[[Life of William Wirt#Page 152|William Wirt]]'', 1, 152-153.

<sup>8</sup> [[Virginia Argus, 10 June 1806|Richmond ''Virginia Argus'', Jun. 10, 1806]].
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mond" about the crime and was thus enabled to "scoop" the world by publishing the first printed details, albeit inaccurate ones, of the "circumstances of this horrid transaction."<sup>9</sup> Newspapers as far away as Boston recorded its effect.<sup>10</sup> Richmond's press devoted an apparently unprecedented amount of space to the modest, touching, but reserved funeral oration by [[William Munford]]<sup>11</sup> and to laudatory tributes received as anonymous communications to the editors; the total aggregated what seems to have been more column inches of eulogy than had been elicited in Virginia newspapers by the death of George Washington or by that of any other person.<sup>12</sup>

Washington's imaginative, opportunistic biographer, Mason Locke Weems, seized upon news that had "quite galvanized" the "very young and tender hearted" in Charleston, South Carolina, as excuse enough for a discursive essay. That itinerant book-peddler described himself as "getting now to be a little oldish . . . , and daily, as becomes a stranger in Charleston, at this season, looking out for a squall of the same sort." Weems viewed with equanimity the fact that "death, by a touch of his old thresher, with equal ease, brings down a Chancellor or a cherry." He professed no grief over the death of the Virginian he portrayed as "[[Honest Lawyer|The Honest Lawyer]]." On the contrary, the effusive "Parson" enjoined joy "that this veteran of the law, after a life of glorious toil, to revive the golden age of justice on earth, was returned to the high courts of heaven-not

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<sup>9</sup> Raleigh, N. C., ''Minerva'', Jun. 16, 1806.

<sup>10</sup> Boston, Mass., ''Gazette'', Jun. 19, 1806, and ''Columbian Centinel'', Jun. 21, 1806.

<sup>11</sup> After the death of Wythe's second wife in 1787, William Munford (1775-1825) had lived in Wythe's home in Williamsburg and had been a special object of Wythe's generous attentions to youth. Grateful, Munford named his oldest child George Wythe Munford "after my old friend and benefactor the Chancellor." William Munford to his sister-in-law, Mrs. Mary R. Preston, Jan. 10, 1803, Munford- Ellis Papers, Duke University Library. Munford, his heart "torn with sorrow," then accepted the Council of State's assignment to preach the funeral oration, partly because "the ties of gratitude to that best of men, for the extraordinary kindness he ever manifested towards me, ought to prohibit my suffering him to go to his grave without an Eulogy." William Munford to Governor William H. Cabell, Jun. 8, 1806, Executive Papers, Virginia State Library. The funeral oration by Munford was printed in its entirety by two Richmond newspapers: Richmond ''Enquirer'', Jun. 13 and 17, 1806; Richmond ''Virginia Argus'', Jun. 17, 1806.

<sup>12</sup> See issues of the ''Enquirer'', the ''Impartial Observer'', the ''Virginia Argus'', and the ''Virginia Gazette, & General Advertiser'' during the first three or four weeks after Jun. 8, 1806. The author's comparison is based upon impressions rather than upon actual counts of the space allotted by Richmond editors to obituaries, eulogies, etc., for Wythe and for such other distinguished citizens as George Washington, who had died in 1799, and Edmund Pendleton, who had died in 1803.
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pale and trembling . . . , wet with widows' tears, and blood of murdered patriots, to meet the tear-avenging God; but bright in conscious integrity, with hands pure as the sweet palms which press the alabaster bottles of life, and in robes of innocence, snow-white as those that angels wear, to meet the smiles of the Judge Supreme, and the acclamations of brother saints innumerable."'<sup>13</sup>

Celebrants of the Fourth of July in 1806 drank toasts to the memory of George Wythe.<sup>14</sup> Restricted to severe brevity by that social form of tribute, those who gathered for the Fourth at Lexington, Kentucky, remembered Wythe simply as "a faithful labourer in the vineyard of the republic."<sup>15</sup> There the orator of the day was Henry Clay, who until his own death remained proud of the fact that he had been associated with Wythe's court during the 1790's. Indeed, young Clay had been the amanuensis who transcribed for publication the Chancellor's annotated decisions, confusingly peppered though they were with Greek phrases Clay had been able neither to understand nor to write well.<sup>16</sup> Saddened by the news that had plunged Richmond into mourning (news that had just reached Lexington), Clay made his address "short and impressive."<sup>17</sup>

The sense of revulsion felt throughout the country crossed party lines as well as state lines. A Federalist organ in the nation's largest city copied from the Richmond ''Enquirer'' two paragraphs of Republican editor Thomas Ritchie's shocked obituary. To those paragraphs it appended the Petersburg, Virginia, ''Republican's'' pointed comment: "It is generally believed, that this patriot, has been brought to the grave, by means, the 'most foul, base and unnatural,' and that the accused is to undergo an examination."<sup>18</sup> Even a modern interpreter of the Old Dominion cites the felony as the worst example of the cussedness—or something worse—

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<sup>13</sup> M. L. Weems, "[[Honest Lawyer|The Honest Lawyer: An Anecdote]]," Charleston, S. C., ''Times'', Jul. 1, 1806.

<sup>14</sup> [[Richmond Enquirer, 8 July 1806|Richmond ''Enquirer'', Jul. 8, 1806]].

<sup>15</sup> Lexington ''Kentucky Gazette'', Jul. 5, 1806.

<sup>16</sup> Henry Clay to B. B. Minor, May 3, 1851, printed in Benjamin Blake Minor, '[[Memoir of the Author]]," in George Wythe, ''Decisions of Cases in Virginia, by the High Court of Chancery, with Remarks upon Decrees, by the Court of Appeals, Reversing Some of Those Decisions'' (2d ed., B. B. Minor, ed., xxxii-xxxvi. Richmond, 1852), Hereafter cited as Wythe, ''Decisions''.

<sup>17</sup> Bernard Mayo, ''Henry Clay, Spokesman of the New West'' (Boston, 1937), 208-209.

<sup>18</sup> Philadelphia, Pa., ''Poulson's American Daily Advertiser'', Jun. 17, 1806. This newspaper attributed the remark to the Petersburg ''Republican'' of an unspecified date.
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that she attributes to Virginians.<sup>19</sup> The murder of George Wythe took at the time top or high rank among the state's most heinous crimes. It still does.

Inevitably, the revolting affair created quite a stir, for people ''will'' talk. Throughout the week before the prostrated Wythe's last breath set the bells of Richmond a-tolling, his death was a foregone conclusion. People marveled that a man of his age could so long survive the excruciating agonies of so insidious and lethal a poison. While Wythe still suffered, strong suspicion was aroused. Circumstances and tangible evidence converted suspicion into conviction at least seven days before the poison produced its ultimate effect upon the Chancellor's strong constitution.

The suspect was as undoubted as was the conclusion that Wythe was a victim of premeditated murder by means of arsenic. Invariably the slayer was identified as the venerable patriot's teen-aged grandnephew and namesake, George Wythe Swinney, an ingrate who had already proved himself unworthy of the home and education he had enjoyed for several years under the hip roof of the Chancellor's unpretentious cottage. Had not that young reprobate stolen books and money from his too-trusting benefactor? Had he not forged checks against his patron's bank account? And had it not been generally known, doubtless by Swinney himself, that he was the chief heir to Wythe's estate, a modest one but doubtless large enough to provide some relief to a culprit in financial difficulties? So, people said, he had placed his fatal dose in the breakfast coffee served in the unsuspecting household on Sunday morning, May 25. Immediately after that meal the good old judge and two freed Negroes had become critically ill. Lydia Broadnax, the Chancellor's faithful cook and servant, recovered. Michael Brown, the mulatto lad to whom Wythe had personally been giving a classical education—Greek and all—as a practical experiment in testing and developing the intelligence of Virginia's other race, had died on the next Sunday, June 1. The Chancellor himself lived in torment—and perhaps toward the end in a merciful coma—through a second week, but he died on the second Sunday morning, June 8. Fortunately, however, he did not expire before he had altered his will to disinherit the villainous Swinney.

Such is the traditional account of the death of Wythe—a paraphrase expanded to greater length than any known to have been written within the next two weeks, doubtless shorter than many conversational versions

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<sup>19</sup> Virginia Moore, ''Virginia Is a State of Mind'' (New York, 1943), 190-191.
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of the time, and certainly embodying the contemporary explanations of the timing, the method, and the motive of the murderer of Michael Brown and George Wythe.<sup>20</sup> This story of the baneful circumstances has persisted ever since 1806. In its retellings it has undergone normal embellishments and amendments. Developments not fully understood when they occurred gave the tale a poor foundation at the start. The recollections of its original narrators grew more and more subject to error with the passing years. Family traditions, transmitted orally, added details and supplied conversations that seem more logical than they are trustworthy. Fanciful emphases and interpretations have been born of assumptions, not of research.

The only substantial modification, however, has been a pronounced tendency to portray the poisoning of Wythe as an accident, while that of Michael Brown has remained the result of intentional murder. This alteration cannot be traced backward beyond 1850. It stems from two sources that were not independent of each other. One was the quite faulty memory of Dr. John Dove of Richmond, who claimed in 1856 that he had been "[[Memoranda Concerning the Death of Chancellor Wythe|present during the sickness & death of Judge Wythe]]." Dove alleged that the Chancellor had been ill before May 25, 1806, and that Swinney had not expected him to eat breakfast that Sunday morning where the poisoned coffee was to be served. The other source was Benjamin Blake Minor, editor of the ''Southern Literary Messenger'', who contributed a biographical sketch to the second edition of the Chancellor's ''Decisions'' (1852). Minor talked with Dr. Dove, who undoubtedly told him something to the effect that Swinney had "vowed vengeance" only against the mulatto boy; and

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<sup>20</sup> Evidently the earliest summaries of the circumstances now extant are in the reliable letters written by William DuVal to Thomas Jefferson on [[Jefferson-DuVal Correspondence#William DuVal to Thomas Jefferson.2C 4 June 1806|Jun. 4 and 8]], preserved in the Jefferson Papers, Library of Congress. Neither attributes to the poisonings a plain method or motive. The earliest written statement as to motivation and method is apparently to be found in the letter of Jun. 10, 1806, from William Wirt in Norfolk to James Monroe, Monroe Papers, vol. XI, no. 1373. That letter was written before Wirt had learned of Wythe's death. Internal evidence in Wirt's letter indicates that the allegations it relayed were based exclusively on information written on Jun. 5, in a letter that has not been found, by Governor William H. Cabell, his brother-in-law. A later account is in the brief, less specific recollection recorded by Littleton Waller Tazewell, who wrote that "it was generally believed" that Wythe's death "was produced by poison, administered in his coffee, by a reprobate boy, a relation of his who he had undertaken to educate, and who was afterwards convicted of having committed many forgeries of checks in his patrons name." "Sketches of his own family, written by Littleton Waller Tazewell, for the use of his children. Norfolk. Virginia. 1823" (MS. in the Virginia State Library), 121.
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Minor found what seemed to him to be sufficient substantiation in Wythe's will and two of its codicils, which made Swinney the residuary legatee of bequests to Michael Brown.<sup>21</sup> Until now the only serious analysis of the traditional account of Wythe's death and of the Dove-Minor misinterpretation has been that of Julian P. Boyd. His lucidly reasoned booklet on ''[[Murder of George Wythe|The Murder of George Wythe]]'' assayed them chiefly by the test of comparison with information found in seven previously unexploited letters written in 1806 to President Jefferson by Wythe's intimate friend and executor, William DuVal.<sup>22</sup>

But other and even better contemporary records are also extant, and it is good that the ''William and Mary Quarterly'' affords space in this issue both for them and Dr. Boyd's thoughtful interpretation, now relatively unavailable. Chief among these additional documents are official court records of the preliminary trials of George Wythe Swinney for forgery and murder. Like pirates' gold buried in a forgotten pit, they lay neglected through more than a century and a quarter despite recurrent curiosity about Wythe's tragic death. These legal records, discovered by the present writer a number of years ago and now published for the first time, contain precious nuggets of authentic information. They include digests of the sworn testimony of sixteen witnesses for the prosecution against Swinney. They add up to a convincing indictment of him. The discovery was made in the office of the Clerk of the Hustings Court of the City of Richmond,<sup>23</sup> where the documents lay within the

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<sup>21</sup> Both of the phrases quoted above are from Dr. Dove's recorded recollections, which are replete with provable errors and must be considered wholly suspect. "[[Memoranda Concerning the Death of Chancellor Wythe|Memoranda concerning the death of Chancellor Wythe]]—Signed in the Aut[o]-g[rap]h. of T[homas]. H. Wynne and rec'd by him from Dr. John Dove, Sept. 16, 1856," MS. in the Brock Collection, Henry E. Huntington Library and Art Gallery. Hereafter cited as Dove, "Memoranda." For evidence that John Dove, M.D., was a Richmond practitioner from about 1822 to about 1852, see Wyndham B. Blanton, ''Medicine in Virginia in the Nineteenth Century'' (Richmond, 1933), 48, 76, 91, 238, 240. For evidence that Dove influenced Minor directly, see Minor, "[[Memoir of the Author]]," in Wythe, ''Decisions'', xxvii.

<sup>22</sup> Julian P. Boyd, ''[[Murder of George Wythe|The Murder of George Wythe]]'' (Philadelphia, 1949).

<sup>23</sup> Binder's title "[[Hustings Court Order Book|Order Book No. 6, 1804-1806]]," 464-465, 482-488. Rough drafts of the records for these two cases of the Commonwealth v. Swinney—drafts identical to the final ones in every important respect—can be found in the same office in the volume given the binder's title of "[[Hustings Court Minutes|Minutes No. 3, 1802-1806]]" (MS. with pages not numbered) under dates of Jun. 2 and 23, 1806, respectively. Microfilm copies of both the Minute Book and the Order Book are available in the Virginia State Library. The final drafts of the two documents have been transcribed from the Order Book for publication below.
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domain of the very court to which the laws of Virginia prevailing in 1806 required that such an offender in Richmond as Swinney should be brought first for any trial of which an official record would have been kept. When Richmond had been incorporated in 1782, it was made a unit of local government. The General Assembly had provided by law for the annual election of twelve citizens to serve in their spare time as municipal officials. Half of them were to constitute a legislative Common Council. The remaining six—a mayor, a recorder, and four aldermen—were commanded "to hold a court of hustings" each month. Its jurisdiction in Richmond corresponded to that of a county court within county boundaries. Each of the judges of the Hustings Court had been vested with the powers of a justice of the peace, and they had been specifically assigned the duty "of examining criminals for all offences committed within the limits of the said corporation." If they found a defendant guilty of a serious crime, they were to refer him to a higher court for trial before professional judges and a jury.<sup>24</sup> These governmental and legal arrangements for the preservation of law and order had been modified only slightly in later statutes, but a law of 1803 had increased the membership of the Common Council to fifteen and that of the Hustings Court to nine, doubtless in recognition of Richmond's growth to a population of more than five thousand.<sup>25</sup> We shall find that not all of our questions are answered by these documents, but no searcher for the treasure-trove could reasonably have expected it to be so rich. Yet it multiplies by many times the amount of contemporary data at our disposal. It enables us to confirm some details reported unofficially at the time and to correct others. It supplies us with vivid portraits of a gloomy, wicked, and yet remorseful youth; of the last days of a questioning, then convinced, and ultimately forgiving victim; of the anxious solicitude and growing outrage of the latter's friends; and of their transition from innocent acceptance of his serious illness as a natural thing to mounting suspicion, relatively thorough investigation, and distressing proof of the poisoner's guilt. Coupled with our greater knowledge of toxicology and with other contemporary records not utilized

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<sup>24</sup> William Waller Hening, compiler, ''The Statutes at Large ... of Virginia . . .'' (Richmond, Philadelphia, New York, 1819-1823,) XI (Richmond, 1823), 45-51. Hereafter cited as Hening, ''Statutes''.

<sup>25</sup> ''Ibid.'', XII (Richmond, 1823), 407-408; Samuel Shepherd, compiler, ''The Statutes at Large of Virginia,. . . 1792, to . . . 1806 . . .'' (Richmond, 1835-1836), II, 93, 422-425, III, 73-75. Hereafter cited as Shepherd, ''Statutes''.
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by previous investigators, it affords us a surer understanding of the grim story of the unpunished forgeries and murders committed by George Wythe Swinney than was vouchsafed to any of the people who mourned the death of Chancellor Wythe and sought with decreasing fervor to do justice to the cause of it—a more reliable understanding, indeed, than any of our predecessors attained.

The official record of the examination of Swinney for alleged forgery reads as follows:

At a Court of Hustings called and held for the City of Richmond at the Courthouse, on Monday, the second day of June 1806, for the examination of George W. Swinney,<sup>26</sup> who stands accused of forgery.<sup>27</sup>

Present

Edward Carrington, Gentleman, Mayor,

Samuel Pleasants, Gentleman, Recorder,

Henry S. Shore, William Goodwin, Anderson Barret,

David Lambert and William Richardson, Gentlemen, Aldermen.

The prisoner was led to the bar in custody of the Sergeant of this City; whereupon sundry witnesses were sworn and examined, and the prisoner in his defence fully heard: On consideration whereof, the Court is of opinion that the prisoner is guilty of the offence aforesaid, and doth order that he undergo a trial therefor at the next District Court directed by law to be holden at the Capitol in this City: and it is further ordered that the said George W. Swinney be bound in a recognizance in the penalty of one thousand dollars, with suf-

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<sup>26</sup> George Wythe Swinney, whose surname occurs in contemporary records also in the form of various spellings of Sweeney, was a grandson of George Wythe's sister and hence a grandnephew of Wythe. For genealogical information concerning him and related Sweeneys see W. Edwin Hemphill, George Wythe the Colonial Briton: A Biographical Study of the Pre-Revolutionary Era (Doctoral Dissertation, University of Virginia, 1937), 40.

<sup>27</sup> Swinney had doubtless been accused of forgery as the result of a preliminary hearing before one or more of the municipal magistrates or justices of the peace, presumably within the last five days of the preceding week, May 27-31, as is indicated by the testimony of the first witness below. William Wirt enumerated a few other manifestations of dishonesty on Swinney's part that had been preludes to his climactic crime: "The young villain (only about 16 or 17) had been in the habit of robbing his uncle [i.e., his granduncle, George Wythe] with a false-key, had sold three trunks of his most valuable law-books, had forged his checks on the bank to a considerable amount, & wound up his villainies by this act [of murder]." William Wirt to James Monroe, Jun. 10, 1806, Monroe Papers, vol. XI, no. 1373.
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ficient security in a like penalty, for his personal appearance before the Judges of the said district Court, on the first day of the next term thereof, to answer the Commonwealth of the offence aforesaid; and failing to give the security required, he is remanded to jail until he shall give such security, or shall be otherwise discharged by the course of law.

William Dandridge (Teller of the Bank of Virginia) a witness on the foregoing examination, being sworn, deposeth and saith: That on Tuesday last [May 27], the prisoner produced to him at the bank of Virginia, a check thereon for the sum of one hundred dollars, drawn in the name of George Wythe esquire, which the deponent paid. That some time after, on examining the check, he suspected it to be a forged one, and he thereupon went to the prisoner and stated that he believed there was a mistake in said check; That the prisoner immediately produced the money and delivered the same to the deponent. That the prisoner frequently presented checks at the bank in the name of the said George Wythe; and the deponent verily believes that six checks now produced in Court were presented by the prisoner, and are all counterfeited.

Peter Tinsley,<sup>28</sup> another witness sworn on the said examination deposeth and saith: That he carried to George Wythe esquire seven checks drawn in his name on the bank of Virginia, who denied having drawn or signed more than one of them.

William Dandridge and Peter Tinsley here in Court acknowledge themselves indebted to his Excellency William H. Cabell governor or chief magistrate of the Commonwealth of Virginia, in the sum of one hundred pounds each, of their respective goods and chattels, lands and tenements, to be levied, and to the said governor and his successors, for the use of the said Common-wealth rendered: Yet upon this Condition, that if the said William Dandridge and Peter Tinsley shall severally make their personal appearance before the Judges of the District Court directed by law to be holden at the Capitol in this City, on the first day of the next term thereof, to give evidence on behalf of the Commonwealth against George W. Swinney, who stands accused of forgery, and shall not depart thence without the leave of the said Court, then this recognizance is to be void.<center>
(Minutes signed) E: Carrington Mayor<sup>29</sup>
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<sup>28</sup> Tinsley was for many years Clerk of the High Court of Chancery.

<sup>29</sup> One item of corrective evidence is brought out in this record. Unofficial reports of 1806, whenever they stated or implied a chronology for Swinney's crimes, invariably indicated that his forgeries and the discovery of them preceded his poisoning of Judge Wythe. On the contrary, Dandridge testified that Swinney was sus-
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The official record of the examination of Swinney on the charge of murder is a remarkably detailed one. Its unusual length doubtless reflects a common impression of the uncommon nature and circumstances of the alleged crime. The record reveals utter desperation on the part of an al-most deranged Swinney. It portrays the mounting growth of suspicion during illnesses that might have been provoked by merely natural causes. It embodies observations that link Swinney conclusively with ratsbane (white arsenic) and yellow arsenic. It records medical symptoms and measures that are not nice but seem necessary. And it indicates reserve on the part of three physicians when they gave under oath their professional judgments whether or not the death of George Wythe could be attributed to arsenic poisoning. This record is as follows:

At a Court of Hustings called and held for the City of Richmond at the Courthouse, on Monday, the 23d. day of June 1806, for the examination of George W. Swinney, who stands accused of murder.<sup>30</sup>
Present

The Same Justices as above.<sup>31</sup>

The prisoner was led to the bar in custody of the Sergeant of this City; where-upon sundry witnesses were sworn and examined, and the prisoner in his

<div style="font-size: 85%;">
pected for the first time of his forgeries after he had presented a sixth forged check at the bank on Tuesday, May 27. That Tuesday will be found to have been two or three days after Swinney had poisoned Wythe. On that Tuesday the Chancellor lay abed in the early stages of his mortal illness. That is one reason—and his charitable, compassionate nature may be another—for the fact that Wythe himself did not testify in court which of the seven checks "carried" to him by Tinsley he had not signed personally. Further details about the six forgeries will be revealed later in this article.

<sup>30</sup> The accusation against Swinney for the alleged murders of "Wythe & Michael Brown the Freed Boy" had resulted, in keeping with Virginia law, from a hearing held on Jun. 18 before Mayor Edward Carrington and two other magistrates or aldermen. On that occasion the examination of witnesses "lasted near Five Hours." The mayor and his two colleagues "were of Opinion that they, Mr. Wythe & Michael, were poisoned by Geo. W Sweeney." The suspect was ordered to be held in jail to await trial by the Hustings Court as a "Court of Examination" on Jun. 23. William DuVal to Thomas Jefferson, [[Jefferson-DuVal Correspondence#William DuVal to Thomas Jefferson.2C 19 June 1806|Jun. 19, 1806]], Jefferson Papers. Cf. Shepherd, ''Statutes'', III, 73-75.

<sup>31</sup> That is to say, the same six who had been present for the trials of earlier cases on Jun. 23: Mayor Edward Carrington, Recorder Samuel Pleasants, Jr., and Aldermen Henry S. Shore, Anderson Barret, David Lambert, and William Richardson. Aldermen William DuVal, William Goodwin, and Thomas Underwood did not sit as judges for this examination. DuVal attended as a witness.
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===Page 554===

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defence fully heard: On consideration whereof, the Court is of opinion that the prisoner is guilty of the offence aforesaid, and doth order that he undergo a trial therefor before the next District Court directed by law to be holden at the Capitol in this City: and thereupon the said George W. Swinney is remanded to jail.<sup>32</sup>

Tarlton Webb,<sup>33</sup> a witness for the Commonwealth on this examination, being sworn, deposeth and saith: That about a fortnight or three weeks be-fore the prisoner was committed to jail, he enquired of the deponent where he could procure any ratsbane? The deponent replied that it was against the law of the United States to have it. The day before the prisoner was apprehended,<sup>34</sup> he came to the house of the deponent's mother, and shewed the depon[en]t something wrapped in paper, which he said was Ratsbane, and in-formed the deponent that he intended to kill himself, and offered to give the deponent some if he wanted to die. The deponent being shown some drugs found in the jail and produced in Court by Mr. [William] Rose,<sup>35</sup> deposes that what the prisoner showed him was like that in Mr. Rose's possession, and that there was about one table spoonful. The prisoner stated to the deponent that he was very unhappy and something pressed upon his mind; but though applied to, would not disclose the cause of his uneasiness to the deponent.

William Rose,<sup>36</sup> another witness sworn on this examination, deposeth and

<div style="font-size: 85%;">
<sup>32</sup> The [[Virginia, June General Court, 1806|Richmond ''Enquirer'', Jun. 24, 1806]], printed the following announcement of the decision: "George W. Swinney was yesterday called before the examining court of this city, on the charge of poisoning his great Uncle, the venerable George Wythe, and a servant boy. He was unanimously remanded to jail for further trial before the district court to be had in September next." Although it was not particularly customary for crime news, especially courtroom news of this tentative sort, to be widely reprinted, this item reappeared in such representative newspapers as the Richmond [[Virginia Argus, 25 June 1806|''Virginia Argus'', Jun. 25, 1806]]; the Alexandria ''Virginia Gazette, & General Advertiser'', Jun. 25, 1806; the Washington, D. C., ''National Intelligencer, and Washington Advertiser'', Jun. 30, 1806, and ''Universal Gazette'', Jul. 3, 1806; the Augusta, Ga., ''Chronicle'', Jul. 12, 1806; and the Savannah, Ga., ''Columbian Museum & Savannah Advertiser'', Jul. 12, 1806, and ''Georgia Republican'', Jul. 15, 1806.

<sup>33</sup> This witness has not been identified positively. His testimony suggests that he was probably a youthful friend of Swinney.

<sup>34</sup> Swinney was arrested on Wednesday, May 28, or Thursday, May 29, according to testimony given in this examination by witness William DuVal, reproduced below. Webb's testimony here to the effect that Swinney told him on May 27 or May 28 that "something pressed upon his [Swinney's] mind" can be, therefore, a veiled reference by Swinney himself to worry and remorse because of the way he had used poison, with results that had not yet proved fatal, and possibly also because of the forgery committed and detected on Tuesday, May 27.

<sup>35</sup> For an identification of William Rose see the next paragraph and footnote 36.

<sup>36</sup> Rose was the public jailor of Richmond. Richmond ''Enquirer'', Jul. 8, 1817. Rose's
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===Page 555===

<blockquote>
saith: That his servant girl Pleasant, went into the garden about twelve o'clock the day after the prisoner was committed to jail and brought the paper this day produced [in court], the contents of which the deponent immediately knew to be arsenic. When the prisoner was committed to jail, the deponent did not search him; but about an hour and a half after, or thereabouts, hearing that it was probable he had pistols, he went into the jail and felt his pocket, and felt that there was a heavy substance wrapped in paper; but supposing that it might be coppers, or some few eighteen penny pieces, he did not take it out of his pocket. The prisoner had the use of the debtors room and the jail yard at his option. As soon [as] the arsenic was found the deponent suspected that Mr. Wythe was poisoned.

Samuel McCraw,<sup>37</sup> another witness sworn on the said examination, deposeth and saith; That being informed by Mr. Rose, that arsenic had been found in his garden, he proposed to have the servant carried into the garden to see the place where [the arsenic had been] found, to ascertain whether it was deposited there, or thrown from the jail yard. That at the place where the servant stated the arsenic to have been found, the deponent found two papers lying about eighteen inches apart: That the crude arsenic had penetrated a little into the earth, and there were two plants one a fennel, the other a beat [''sic''], broken off as he supposed by the throwing the arsenic over the jail wall: The deponent thinks it must have come from the jail yard. The beat [''sic''] that was wounded was next [i.e., nearer] the jail wall and was wounded considerably farther from the ground than the fennel. On the first of June, one week after Mr. Wythe's attack [began], the deponent was re-quested to go to attest [the final codicil to] Mr. Wythe's will. Mr. Wythe re-quested the prisoner's room and trunk to be searched. The deponent, with others, was conducted to the room where the prisoner lodged, opened the chest and found a port folio with a quire of blotting paper, which the deponent believes to be of the same kind with what was found wrapped round the arsenic found in the garden. In the prisoner's room on a writing table, the deponent found a paper on which were a half a dozen strawberries with the appearance of arsenic having been sprinkled over them. He found a phial with an appearance of having had a liquid, some of which adhered to the side of the phial, and on examination was believed to have been a mixture of testimony and that of the next witness make it plain that the former's residence and garden adjoined the jail.

<div style="font-size: 85%;">
testimony and that of the next witness make it plain that the former's residence and garden adjoined the jail.

<sup>37</sup> McCraw was one of the four witnesses who signed the final codicil to Wythe's will. Minor, "[[Memoir of the Author]]," in Wythe, ''Decisions'', xxxviii-xxxix.
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===Page 556===

<blockquote>
arsenic and sulphur. He also found two pieces of coarse brown paper, with something adhering to each, which was also declared to be arsenic and sulphur. The deponent frequently visited Mr. Wythe in his last illness and he appeared to be in very great agony from the first time to his death. Some time before the death of Mr. Wythe, while this deponent was sitting by him, Mr. Wythe exclaimed, cut me—the deponent supposed he wanted to have his flannel cut loose which the deponent accordingly did, but which gave apparent displeasure to Mr. Wythe, who then putting his hand to his throat and heart again called out, cut me, but could make no further explanation: this induced a belief in the deponent and those present that it was his wish to be opened after his death. The deponent never did hear Mr. Wythe express any suspicion of having been poisoned.

Fleming Russell<sup>38</sup> another witness sworn on the said examination deposeth and saith; That the day he received the warrant [for the arrest of Swinney] he went to Mr. Wythe's and found the prisoner: when he showed the prisoner the warrant and carried him to Major DuVal's & discovered he had no pistols, took his knife from him, and put his hand in his coat pocket, he felt very distinctly that he had two separate parcels of something wraped up in paper in his pocket but made no further search. After the prisoner was committed to jail, the deponent informed Mr. Rose, that the prisoner had some-thing else in his coat pocket and advised him to make a search, but did not go with Mr. Rose to make it.

Taylor Williams<sup>39</sup> a witness sworn on the said examination deposeth and saith; That about three weeks before the prisoner was apprehended, he mentioned something to the deponent about poison. The deponent informed him that copperas [i.e., crystallized ferrous sulphate] and water was poison. In about six or seven days after, the prisoner began a conversation with the deponent about poison: the deponent then told him ratsbane was poison, and that a gentleman of his acquaintance used it for the purpose of killing rats, and that [it] was to be bought in the shops, but does not recollect with certainty whether the prisoner asked him where it might be had.

Major William DuVal<sup>40</sup> another witness sworn on said examination de-

<div style="font-size: 85%;">
<sup>38</sup> This witness has not been identified. Judging from his testimony, he must have been a Richmond police officer.

<sup>39</sup> Williams appears from his testimony to have been a young friend of Swinney.

<sup>40</sup> William DuVal was of Huguenot descent, an officer during the Revolutionary War, an attorney, a member of the Virginia General Assembly, a magistrate of Richmond who had served as mayor during 1805-1806, and an intimate friend of Wythe, whose residence was also located in the square bounded by Grace, Sixth, Franklin,
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===Page 557===

<blockquote>
poseth and saith; that on the 25th day of May, he went to see Mr. Wythe, without knowing he was sick, and found him very ill[,] extended on his back. Mr. Wythe said he had not caught cold, that he was as well as usual in the morning, & eat his brea[k]fast as usual; but was immediately taken extremely ill, confined on his back except when forced up, which was upwards of forty times, and had fifteen large evacuations. After the prisoner was committed for the forgery he applied to the deponent by letter to be bailed. Mr. Wythe would have nothing to do with bailing [Swinney]. Mr. Wythe said he was taken ill on the twenty fifth day of May, about nine o'clock after having eat his break-fast; that on wednesday or thursday after, the prisoner was apprehended. Mr. Wythe requested that the prisoner's room and trunk might be searched, which request he repeated frequently, and finally on the first of June prevailed on Mr. McCraw and some other gentlemen who searched the room and trunk and found some papers with something adhereing to them which was declared by Doctor Greenhow<sup>41</sup> to be arsenic. The deponent saw the appearance of arsenic in an out house of Mr. Wythe's, in his yard, used as a shop; and [de-poseth] that some was also found in an old smoak house on a wheel barrow; which on being tried with a pin was proved to be arsenic. On thursday before Mr. Wythe's death he made an ejaculation and declared he was murdered in a low tone of voice. It was generally believed that Mr. Wythe had left the prisoner a great portion of his estate, and known that he had made some pro-vision for the mulatto boy, [Michael] Brown.

Samuel Greenhow<sup>42</sup> another witness sworn on said examination gave the same evidence upon the search of the prisoners room and trunk with McCraw.
and Fifth Streets. DuVal died in Buckingham County in 1842 at the age of 93. W. Asbury Christian, ''Richmond: Her Past and Present'' (Richmond, 1912), 57, 545; Richmond ''Enquirer'', Jan. 13, 1842, and May 13, 1842.

<div style="font-size: 85%;">
<sup>41</sup> The Greenhow to whom DuVal referred may have been the next witness, identified in footnote 42, who is known to have participated in the search of Swinney's room but is not known to have had any claim to the title of Doctor. Conceivably, on the other hand, this Doctor Greenhow may have been the Doctor James G. Greenhow who was living in Richmond in 1815. Blanton, ''Medicine in Virginia in the Nineteenth Century'', 246, 445, citing the Richmond ''Virginia Argus'', Mar. 1, 1815.

<sup>42</sup> Samuel Greenhow issued, as "Principal Agent," a call for the annual meeting in 1809 of the Mutual Assurance Society, the well-known, pioneer Virginia fire insurance company. Richmond ''Enquirer'', Dec. 24, 1808. With men like the Reverend John D. Blair, the Reverend John Buchanan, the Reverend John Holt Rice, and William Munford, Samuel Greenhow was a charter member of the Board of Managers of the Virginia Bible Society, which was organized in Jul., 1813. Christian, ''Richmond'', 87. Greenhow was one of the four witnesses who signed the final codicil to Wythe's will. Minor, "[[Memoir of the Author]]" in Wythe, ''Decisions'', xxxviii-xxxix.
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===Page 558===

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William Price<sup>43</sup> another witness sworn on said examination, gave the same evidence as McCraw and Greenhow on the subject of the search of the prisoner's room, and [substantiated the testimony] of McCraw on the subject of Mr. Wythe’s request to be cut. Mr. McCraw mentioned at that time that he supposed Mr. Wythe wanted to be cut open. Mr. Wythe appeared to be in great agony during his illness, and more particularly when moved.

Nelson Abbott<sup>44</sup> another witness sworn on said examination, deposeth and saith, that on saturday the 24th day of May last, he put an axe, now produced [in court], into a shop in Mr. Wythe’s yard, which he [Wythe] had lent him [Abbott] for a work shop; that on the 27th he went to Hanover and returned on friday the 30th when he discovered the arsenic in its present situation, and a hammer much stained with yellow, which has since been cleaned. The negroes in the shop said the prisoner had beat something they did not know what on the side of the ax with the hammer.

William Claiborne<sup>45</sup> another witness sworn on the said examination deposeth and saith: That he went to Mr. Wythe's the wednesday after his illness [began], who informed him that the Sunday preceding in the morning, he was as well as usual, immediately after breakfast he was taken with a colarimorbus [cholera morbus] and then a violent lax, went forty times that day, and had at least fifteen large evacuations: That on Saturday night he supped [i.e., on Saturday night, May 24, Wythe had supped] on milk and strawberries. Mr. Wythe said all the negroes [of his household] were taken [sick] at the same time. The deponent went into the kitchen and found most of them very ill. He then went to Major DuVal's, and expressed his opinion that the family were poisoned; and suspected the prisoner in consequence of his having been detected [on the previous day, May 27] in the forgery, as the death of Mr. Wythe before the detection could only prevent an alteration in his will which the deponent believed was much in favor of the prisoner. The deponent frequently told the prisoner that he would be well provided for by Mr. Wythe if he behaved well. After the death of the yellow boy [Michael Brown], the deponent was told by some of the negroes that arsenic was found in the outhouses. The deponent took some off the wheelbarrow in the old smoke house, applied fire to it and found from the smell that it was arsenic. The deponent asked Mr. Wythe whether the prisoner break-

<div style="font-size: 85%;">
<sup>43</sup> William Price was another of the witnesses to the final codicil to Wythe's will. Minor, "[[Memoir of the Author]]," in Wythe, ''Decisions'', xxxviii-xxxix.

<sup>44</sup> No information to identify this witness has been discovered.

<sup>45</sup> William Claiborne was the father of W. C. C. Claiborne, Governor of the Territory of Orleans. Richmond ''Enquirer'', Oct. 3, 1809.
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===Page 559===

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fasted with him the morning before he [Wythe] was taken [sick]. At first he did not answer. Afterwards he said he did not know, he [Swinney] was always called to his breakfast, but sometimes took no thing to eat or drink. Mr. Wythe observed he died in peace with all the world, and said he should leave directions for his executor to search the prisoner's trunk. This took place after the death of the boy Michael [on Sunday morning, June <sup>46</sup>], about sunset on the first of June.

[[wikipedia:Edmund Randolph|Edmund Randolph]],<sup>47</sup> being also sworn, deposeth and saith: That on Sunday the first of June about nine o'clock [A.M.], Major DuVal informed the deponent of the death of Michael from poison and [reported] Mr. Wythe as probably dying with the same. Mr. Wythe told the deponent he had supped on strawberries and milk the Saturday before he was taken ill. He wished his will to be altered so as to give to the prisoner's brothers and sisters what he had given him. The deponent made the alteration and then returned home, and afterwards went again to Mr. Wythe and informed him of the death of Michael Brown. The former codicil to the will was then destroyed and the present one made. On Wednesday the fourth of June, the deponent was in-formed by old Lydia [Broadnax] that more marks of poison had been discovered. The deponent went into the shop and saw Abbot's ax. The negro<sup>48</sup>

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<sup>46</sup> George Wythe said in the final codicil to his will, dated Jun. 1, 1806, that he had been told that Michael Brown had died that morning. Minor, "[[Memoir of the Author]]," in Wythe, ''Decisions'', xxxviii-xxxix. An almost contemporary letter also refers to Brown's death on Sunday morning, Jun. 1. William DuVal to Thomas Jefferson, [[Jefferson-DuVal Correspondence#William DuVal to Thomas Jefferson.2C 4 June 1806|Jun. 4, 1806]], Jefferson Papers.

<sup>47</sup> Edmund Randolph, the first Attorney General both of the Commonwealth of Virginia and of the United States, wrote and witnessed the final codicil to Wythe's will. See his testimony here given and Minor, "[[Memoir of the Author]]," in Wythe, ''Decisions'', xxxviii-xxxix. Randolph's career had overlapped Wythe's through the past thirty years—for example, in the Virginia conventions of 1776 and 1788. The first of the two codicils mentioned by Randolph in his testimony evidently devised to George Wythe Swinney's brothers and sisters only what Wythe had formerly bequeathed to Swinney. The second of the two codicils mentioned by Randolph devised to George Wythe Swinney's brothers and sisters everything that Wythe had formerly bequeathed both to Swinney and to Michael Brown. The will and its codicils dated Jan. 19 and Feb. 24, 1806, were proved in the General Court of Virginia on Jun. ii, 1806, by the oaths of Edmund Randolph and Peter Tinsley; and the final codicil, dated Jun. 1, 1806, was proved by the oaths of Samuel McCraw, William Price, and Edmund Randolph. For a printed copy of the will and its three validated codicils see Minor, ''ibid''. An attested manuscript copy is filed under Jun., 1806, in the Jefferson Papers.

<sup>48</sup> This reference to a certain Negro is not as precise as we might wish. Doubtless, however, Randolph talked on Jun. 4 with a Negro man employed in Nelson Abbott's workshop. Possibly this man was one of the same "negroes in the shop" who, according to Abbott's deposition, had told Abbott on May 30 that they did not
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===Page 560===

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was uncertain whether [it was on] the 24th or 26th of May, that the prisoner had caused the appearances [of poisons in the workshop]; but at last settled that it was on Saturday [May 24] when he found the prisoner in the shop, and one of the doors forced, and the prisoner was in the act of pounding some-thing on the axe. The prisoner asked him what it was? the negro replied he believed it was ratsbane. The prisoner then scraped it as clean as he could off the axe and folded it up in a piece of paper, wiping the axe with shavings. It was generally understood and believed that Mr. Wythe had left the bulk of his estate to the prisoner.

Doctor James McClurg,<sup>49</sup> another witness, being sworn, deposeth: That he was present at the opening of the body of Michael Brown. The lower part of the stomach was very much inflamed and had the appearance of the black vomit. The deponent went to visit Mr. Wythe on the day before the boy died and found him with a fever, his tongue very foul, had had no passage for twelve hours, and was free from pain. The appearance of the boy was such as arsenic might have produced; but such as might also have been produced by a great collection of bile. The deponent was also present at the opening the body of Mr. Wythe. The whole of his stomach and intestines had an uncommonly bloody appearance, that if produced by arsenic, in his [McClurg's] opinion, death would have ensued much sooner. Mr. Wythe had been frequently attacked with disordered bowells within three years last past.

Doctor James D. McCaw,<sup>50</sup> being also sworn, deposeth: That he was called ''know'' what substance Swinney had pounded into powder. In slight but not necessarily contradictory contrast, the Negro of whom Randolph testified simply ''believed'' on May 24 that the substance was ratsbane.

<div style="font-size: 85%;">
<sup>49</sup> Under the reorganization of the College of William and Mary instigated by Thomas Jefferson in 1779, James McClurg (1746-1823), Edinburgh-trained physician, had been one of Wythe's four colleagues in the faculty. For three years Dr. McClurg held the newly created chair of the professor of anatomy and medicine. Like Wythe, McClurg went to Philadelphia in 1787 to attend the convention from which emerged the Federal Constitution. McClurg was chosen to be Richmond's mayor in 1797, 1800, and 1803. For a quarter of a century he was one of the community's out-standing physicians. When the Medical Society of Virginia was organized in 1820, he was elected its first president. Although he was too infirm to take an active part in its affairs, he was re-elected in the next year. Blanton, ''Medicine in Virginia in the Nineteenth Century'', 13, 75-76; Christian, ''Richmond'', 545.

<sup>50</sup> James Drew McCaw, M.D., was one of the founders of the Medical Society of Virginia. His father, Dr. James McCaw, founded what might be called a Virginia medical dynasty destined to last five generations. Blanton, ''Medicine in Virginia in the Nineteenth Century'', 116-117, 261, 367. James D. McCaw's offer of 1802 to inoculate the poor of Richmond against smallpox had been accepted by the Common Hall or Council. Richmond ''Examiner'', Jun. 2, 1802. Judging by James D. McCaw's testi-
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===Page 561===

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to attend Mr Wythe on the 26th of May between four and five o'clock. He had been up with a violent puking & purging, and the deponent gave him an opiate, after which he got better, and was better until the discovery of the prisoner's forgery [on Tuesday, May 27], when he became worse and continued to grow worse. The deponent saw the boy [Michael Brown] on the day before his death, when he had a fever and complained of great pain. The deponent saw him opened after his death, and thinks that his death might have been occasioned by a great accumulation of bile.

Doctor William Foushee,<sup>51</sup> being sworn, deposeth: That he attended the opening of Mr Wythe's body in the presence of many other physicians.<sup>52</sup> The stomach was very much inflamed, and appeared as if a new inflamation was coming on. There was very little bile in the liver. The same appearance that his stomach and intestines exhibited might have been produced by arsenic, or any other acrid matter.

James McClurg, William Foushee, James D. McCaw, William Rose, Samuel McCraw, Fleming Russell, William Claiborne, William Price (Register) Nelson Abbott and Taylor Williams,<sup>53</sup> here in Court acknowledge themselves

<div style="font-size: 85%;">
mony, he seems to have been more nearly the family physician to the Wythe household than any of the other physicians whose names occur in records concerning the Chancellor's last illness. To be compared with the recorded testimony of Dr. McClurg and that of Dr. McCaw concerning the autopsy on the body of Michael
Brown is DuVal's letter to Jefferson: "As a Magistrate I requested four eminent Physicians to open the body of the Boy. They did so; from the inflamation on the Stomach & Bowels they said that it was the kind of Inflamation produced by Poison." William DuVal to Thomas Jefferson, [[Jefferson-DuVal Correspondence#William DuVal to Thomas Jefferson.2C 4 June 1806|Jun. 4, 1806]], Jefferson Papers.

<sup>51</sup> William Foushee, M.D., had been born in the Northern Neck in 1749. Like McClurg, he studied medicine in Edinburgh. He served as Richmond's first mayor, 1782-1783, as the town's postmaster for several years, and as the president of its Common Hall or town council for several years. He also served in both the legislative and executive branches of the state government. For many years he presided over the James River Company's internal navigation improvement projects. The General Assembly named him among the charter trustees of the Richmond Academy in 1802. Twenty years later the Medical Society of Virginia elected him its second president. When he died in 1824, he was almost seventy-five years old and was said to have been Richmond's oldest inhabitant. His death evoked an unusually detailed obituary. Christian, ''Richmond'', 57-58, 545; Blanton, ''Medicine in Virginia in the Nineteenth Century'', 75-76; Richmond ''Enquirer'', Aug. 24, 1824.

<sup>52</sup> DuVal reported to Jefferson that William Foushee, James D. McCaw, James McClurg, and two other physicians performed the autopsy on Wythe's body on the day of his death. DuVal stated simply that they found "considerable inflamation in the Stomach," but he added in the same context that it was "strongly suspected" that Wythe and Michael Brown had been poisoned with yellow arsenic by George Wythe Swinney. William DuVal to Thomas Jefferson, [[Jefferson-DuVal Correspondence#William DuVal to Thomas Jefferson.2C 8 June 1806|Jun. 8, 1806]], Jefferson Papers.

<sup>53</sup> It may be highly significant that four of the fourteen witnesses were not
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severally indebted to his Excellency William H. Cabell governor or chief magistrate of the Commonwealth of Virginia, in the sum of one hundred pounds each, of their respective goods and chattels, lands and tenements, to be levied, and to the said governor and his successors, for the use of the said Common- wealth rendered: Yet upon this Condition, that if the said James McClurg, William Foushee, James D. McCaw, William Rose, Samuel McCraw, Fleming Russell, William Claiborne, William Price (Register) Nelson Abbott and Taylor Williams, shall severally make their personal appearance before the Judges of the District Court directed by law to be holden at the Capitol in this City on the first day of the next term of that Court, to give evidence on behalf of the Commonwealth against George W. Swinney, who stands accused of murder, and shall not depart thence without the leave of the said Court, this recognizance is to be void.

(Minutes signed) E: Carrington, Mayor

The depositions of the sixteen witnesses in the two proceedings of June 2 and 23 make Swinney's motives for murder clearer than other contemporary records. Obviously, that troubled knave had tried to solve more than one of his problems at once. By a single desperate deed he might forestall discovery of his forgeries, prevent any resultant reduction or cancellation of the legacy he would receive from Wythe, and claim his inheritance prematurely.

But the second Hustings Court record does not enable us to determine with finality precisely when and how Swinney committed his acts of murder. None of the testimony links arsenic with the coffee served in Wythe's cottage, according to the traditional story of the poisonings, at breakfast on Sunday, May 25. To contrary import are the depositions of Claiborne, McCraw, and Randolph. Their assertions under oath indicate that Swinney had mixed some arsenic with strawberries and that Wythe ate strawberries for supper on Saturday, May 24. Wythe's breakfast coffee may have become the supposed vehicle for the poison on the invalid ground of reasoning of the ''post hoc, propter hoc'' type. Actually, so far as we can tell,

placed under bond to be available to serve as witnesses in the forthcoming trial of Swinney on the charge of murder before the District Court. The four who were exempted from such an obligation were William DuVal, Samuel Greenhow, Edmund Randolph, and Tarlton Webb. While in some respects their testimony before the Hustings Court merely confirmed that of other witnesses, in these respects, and more especially in reference to other observations concerning which others did not testify, the evidence submitted by these four could not be omitted without weakening the case against Swinney.

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he may have consumed poisoned foods at both meals. A fatal dose of arsenic usually produces acute symptoms within about an hour after it enters the human stomach, and death usually follows within one to three days. Wythe's case was not a typical one in the latter respect, and we have scant cause to assume that it was a normal one in the former respect. Fatal dosages of arsenic have been known in rare instances to cause no symptom for as many as twelve hours, particularly if the poison was ad- ministered in solid rather than liquid form and if a full meal was consumed with it; and death has been known to result as much as two weeks after the appearance of symptoms, as it did in Wythe's case. An inexperienced, experimenting Swinney may have underestimated on May 24 the amount of arsenic required to accomplish his premeditated purpose. He may have awaked the next morning to find that his attempt of the previous afternoon or evening had failed. He may then have added a second and larger quantity of arsenic to the breakfast menu. Neither this nor any alternative possibility can be proved conclusively from the available evidence.

More important than questions about details of that sort is the official record's revelation of the limited, inconclusive nature of the physicians' findings in the two autopsies. They did not exhaust every means known to the medical scientists and chemists of their generation to determine whether or not the deaths of Michael Brown and George Wythe had been unnatural ones. One authoritative treatise, for example, published in 1832 but embodying comparatively little that had been learned since 1806, devoted fully a hundred pages to its discussion of arsenic poisoning, forty of them to various definitive tests by which the presence of arsenic can be determined. Its author commented on the ease with which that almost tasteless and odorless chemical element could be procured in various forms and compounds and could be administered surreptitiously. Then he added,

"It is fortunate, therefore, that there are few substances in nature, and perhaps hardly any other poison, whose presence can be detected in such minute quantities and with so great certainty."<sup>54</sup> The inflamed tissues observed by the Richmond doctors were ambiguous. The same kind of examination today would do little more, if any, to pin down positively the cause of such deaths, for gastrointestinal inflammations of quite similar

<div style="font-size: 85%;">
<sup>54</sup> Robert Christison, ''A Treatise on Poisons, in Relation to Medical Jurisprudence, Physiology, and the Practice of Physic'' (2d ed., Edinburgh, 1832), 223. This volume's treatment of arsenic poisoning covers pp. 223-324.
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===Page 564===

<blockquote>
appearance can result from any of several distinct causes, both natural and unnatural. The Richmond physicians' post-mortem inspections should not have ended short of a few simple laboratory procedures. Standard analyses of that kind would almost certainly have proved beyond question whether or not arsenic had ended the lives of the youthful Michael Brown and the aged George Wythe.

The above testimony in both of the suits of the Commonwealth ''v.'' Swinney confirms an undisputed conclusion reached by all who have ever studied the matter: Wythe himself became fully convinced on his death- bed that Swinney was a forger and a murderer. Yet, in fact, that young man escaped legal punishment for both offenses. His road to freedom was, however, a tortuous one. Sometime during the summer of 1806 the charges against him were referred to a grand jury. It returned true bills. Thus it became the third judicial body to render a verdict of guilt against Swinney on each accusation, for the same conclusion had already been reached on each count by one or more of Richmond's magistrates and by the Hustings Court. Specifically, the grand jury cleared the way for the trial of Swinney by the District Court on each of six distinct indictments—one for the murder of Wythe, another for that of Michael Brown, and four for forgeries of Wythe's name on as many checks.<sup>55</sup>

On September 2, 1806, the District Court proceeded to tackle what the [[Respectfully Dedicated to the Legislature of Virginia|Richmond ''Enquirer'']] termed "the celebrated trial of George W. Sweeney, on the charge of administering arsenic to his great Uncle the venerable George Wythe." Judges Joseph Prentis and John Tyler, Sr., whose son of the same name was destined to become the tenth President of the United States, were the two members of Virginia's General Court assigned to preside over this session in the Richmond district.<sup>56</sup> Presumably, the two judges' judicial robes hid the mourning bands of crape that they and other members of the General Court had resolved to wear on their left arms for three months in tribute to the jurist Virginia had lost.<sup>57</sup> At the

<div style="font-size: 85%;">
<sup>55</sup> There is no record of any decision in regard to the other two checks that William Dandridge and Peter Tinsley had testified were, in the opinions of Dandridge and Wythe, also forged.

<sup>56</sup> [[Richmond Enquirer, 9 September 1806|Richmond ''Enquirer'', Sept. 9, 1806]].

<sup>57</sup> Ibid., Jun. 24, 1806; [[Virginia Argus, 17 June 1806|Richmond ''Virginia Argus'', Jun. 17, 1806]]; Richmond ''Impartial Observer'', Jun. 21, 1806. The Governor and Council had resolved on Jun. 14, "in honour of the deceased," to wear black bands similarly for one month as an "outward Sign of respect to his memory." Journals of the Council of Virginia (MSS. in the Virginia State Library), XXVII, 448. When the Virginia General Assembly convened in Dec., 1806, its members also resolved unanimously to "wear a badge of
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===Page 565===

<blockquote>
prosecuting attorney's table sat Philip Norborne Nicholas,<sup>58</sup> the popular young Attorney General of Virginia and successful leader in recent years of the Jeffersonian Republican party in the state. Nicholas had known Wythe while the Chancellor had still resided in Williamsburg. More recently they had been associated in various legal and political activities. Presumably, Nicholas had every reason to prosecute the case with all the vigor at his command.

But the shocked, incensed atmosphere of June had doubtless grown calmer by September, and impressive talents had been aligned on Swinney's side as counsel for the defense.<sup>59</sup> One of these lawyers was the same Edmund Randolph who had written the codicil disinheriting Swinney, the same Randolph who had given damaging testimony against him in the Hustings Court. The other lawyer at Swinney's side was the same William Wirt who had expressed a hope that no attorney would be found to defend him, so that he would be left to suffer the fate he deserved.

Wirt had been contemplating at the beginning of the summer a desire to move from Norfolk to Richmond, for his wife found Norfolk's summers unbearable. He had concluded at that distance within a month after Wythe's death that Swinney could conceivably be innocent of murder. Judge William Nelson of the General Court had told him that "there was a difference of opinion" among Richmond doctors as to the cause of the Chancellor's death and that "the eminent McClurg, amongst others, had pronounced that his death was caused simply by bile and not by poison." Then a brother of Swinney's distressed mother had traveled eastward to implore Wirt to serve as an attorney for the defense.<sup>60</sup>

Although Wirt had already decided before that visit that "it would not be so horrible a thing to defend" Swinney "as, at first, I had thought it," the plea made by his uncle posed a problem of conscience and of reputation. By letter Wirt asked his wife, "What shall I do?" And then he proceeded to influence her decision. "If there is no moral or professional impropriety in it, I know that it might be done in a manner which would avert the displeasure of every one from me, and give me a splendid ''debut'' in the metropolis. Judge Nelson says I ought not to hesitate a moment

<div style="font-size: 85%;">
mourning" for one month. Washington, D.C., [[National Intelligencer, 15 December 1806|''National Intelligencer, and Washington Advertiser'', Dec. 15, 1806]].

<sup>59</sup> ''Ibid.''

<sup>60</sup> William Wirt to his wife, Jul. 13, 1806, Kennedy, ''William Wirt'', I, 152-153.
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===Page 566===

<blockquote>
to do it; that no one can justly censure me for it; and, for his own part, he thinks it highly proper that the young man should be defended. Being himself a relation of Judge Wythe's, and having the most delicate sense of propriety, I am disposed to confide very much in his opinion."'

The issue was settled within ten days. Nelson reiterated his opinion as to "the perfect propriety of the step." Mrs. Wirt evidently protested that her husband need not fear that she would suffer reproach. "I shall defend young Swinney under your counsel," he wrote her. "My conscience is perfectly clear, from the accounts I hear of the conflicting evidence."<sup>62</sup>

Records of the District Court, in which Randolph and Wirt undertook to save the life of George Wythe Swinney, are not extant; apparently they did not survive the fire that accompanied the Confederate evacuation of Richmond in April, 1865. Only from other sources can we learn whether or not the defense attorneys achieved their goal. The Richmond ''Enquirer'' reported succinctly the results of what was probably a day replete with courtroom drama and legal technicalities. "After an able and eloquent discussion" by counsel for the Commonwealth and for Swinney, read that newspaper's summary, "the jury retired, and in a few minutes, brought in the verdict of ''not guilty''. A similar indictment against him [Swinney] for the poisoning of Michael, a mulatto boy (who lived with Mr. Wythe) was quashed without a trial."<sup>63</sup>

There could have been no doubt whatsoever that Virginia's laws of 1806 defined murder by poisoning, if it were committed by a free person, to be murder of the first degree, punishable by death.<sup>64</sup>Some other ex- planation of the jury's astonishing verdict must be sought. Editor Thomas Ritchie offered his readers one hint why Randolph and Wirt had been able to win a quick decision in favor of their despised client. Some of the "strongest testimony" that had been heard by the Hustings Court and by the grand jury, Ritchie remarked, "was kept back from the petit jury" in the District Court. "The reason is, that it was gleaned from the evidence of negroes, which is not permitted by our laws to go against a white

<div style="font-size: 85%;">
<sup>61</sup> ''Ibid''. Nelson's distant kinship to Wythe was evidently through the second Mrs. Wythe, who had been a Taliaferro. See a copy of the will of Rebecca Cocke Taliaferro of "Powhatan," James City County, Nov. 12, 1810, in the possession of Colonial Williamsburg.

<sup>62</sup> William Wirt to his wife, Jul. 23, 1806, Kennedy, ''[[Life of William Wirt#Page 154|William Wirt]]'', 1, 154.

<sup>63</sup> [[Richmond Enquirer, 9 September 1806|Richmond ''Enquirer'', Sept. 9, 1806]].

<sup>64</sup> the enactments of 1796 and 1803, Shepherd, ''Statutes'', II, 5-14 and 405-406, respectively.
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===Page 567===

<blockquote>
man."<sup>65</sup> Actually, the reason assigned by the editor would have been more nearly true if he had phrased it more carefully. As far back as 1732 and as recently as 1801 the statutes of Virginia had stipulated that a Negro or a mulatto could be qualified as a witness only in a lawsuit brought against a Negro or a mulatto or by the commonwealth for one.<sup>66</sup> That is why Lydia Broadnax had not told the Hustings Court in June whatever she knew about the involvement of George Wythe Swinney in the deaths of Michael Brown and George Wythe.

The legal disability of Negroes to testify against Swinney had loomed large in people's thinking about the prospective trials of that ingrate for murder ever since Michael had died. Even before William Wirt learned with certainty that Wythe had also been a victim, Wirt had realized that one law might prevent the fulfillment of justice under another. "The chain of circumstances fix the guilt of Sweney beyond reach of doubt," Wirt had then been willing to assert, "but some of those circumstances, material to his conviction in a court of law, depend, it seems, on black persons, & so he will escape for the poison[ings]. he is under prosecution for the forgery & of that must be convicted."<sup>67</sup>

One logical question is answered neither by Ritchie's explanation nor by Wirt's prophecy. Why was any of the evidence that had been admissible in the three previous proceedings—evidence that had resulted in three verdicts of guilt—not presented in the District Court? No record answers that question. Possibly the District Court refused to hear some of the testimony that had been given before the Hustings Court. Evidence given by the white witnesses in June concerning what Negroes had ob-

<div style="font-size: 85%;">
<sup>65</sup> [[Richmond Enquirer, 9 September 1806|Richmond ''Enquirer'', Sept. 9, 1806]].

<sup>66</sup> The exact words of the law of 1801 were: "Any negro or mulatto, bond or free, shall be a good witness in pleas of the commonwealth for or against negroes or mulattoes, bond or free, or in civil pleas where free negroes or mulattoes shall alone be parties." Shepherd, ''Statutes'', II, 300. The statute of 1785 was to the same effect, although its provisions were couched in negative terms and omitted the words "bond" and "free" in each of the five instances of their use in the enactment of 1806. Hening, ''Statutes'', XII (Richmond, 1823), 182-183. Digests of the 1732 and 1748 statutes and of related legislation can be found conveniently in June Purcell Guild, ''Black Laws of Virginia: A Summary of the Legislative Acts of Virginia concerning Negroes from Earliest Times to the Present'' (Richmond, 1936), 154-155.

<sup>67</sup> William Wirt to James Monroe, Jun. 10, 1806, Monroe Papers, vol. XI, no. 1373. Internal evidence in this letter indicates that for the facts he stated Wirt was indebted to a communication written on Jun. 5, 1806, by his brother-in-law, Governor Cabell, and the prophecies Wirt voiced may also have reflected the Governor's thinking as of that date.
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===Page 568===

<blockquote>
served and had told them may have been ruled inadmissible by Judges Prentis and Tyler because of its Negro source or its hearsay nature. On the other hand, we have no proof acceptable by the ordinary standards of historical criticism that Swinney was acquitted because of the repression of the testimony Lydia Broadnax or other Negroes might have given but for Virginia's laws. Ritchie's allegation about the withholding of testimony "gleaned from the evidence of negroes" remains unsubstantiated, and Wirt's prophecy can be considered to have been merely a recognition of the flimsiness of the circumstantial evidence others would be able to give.

The simple fact remains that no known witness was able to assert in any of the four proceedings that he had actually seen Swinney put poison into food eaten by Michael Brown or by George Wythe. Moreover, no physician is known to have been willing to swear that either of the two autopsies proved that death had been caused by a poison. In other words, the evidence against Swinney was purely circumstantial.

Thomas Ritchie himself had not been hysterical in his attitude toward Swinney during the first days of resentment following the news of the Chancellor's death. The editor had remembered, sanely and circum- spectly, that the accusations against Swinney had not then been proved and that, until and unless they were, he should be presumed innocent. "Every situation in life has its rights and its duties," Ritchie had cautioned his readers. "Let us therefore respect the rights of the accused."<sup>68</sup> If Swinney's two lawyers took advantage in the District Court of every legal technicality to protect their client's rights, Ritchie should have been among the last to imply any criticism of them, for they had placed themselves under obligation to do so.

In any case, George Wythe was dead. Another man's life was at stake. It is the very genius of the legal system Wythe had received from his forefathers and had himself helped to develop and to refine that this second life should not be taken lightly. Since we do not know in detail what transpired in that Richmond courtroom on September 2, 1806, we are left in the position of being forced to accept at face value the jury's final decision, which was that Swinney had not been proved beyond reasonable doubt to have murdered George Wythe and that he was therefore ''not guilty''. Similarly, we must accept the opinion of Attorney General Nicholas that it would have been useless to try to prove beyond reasonable doubt that Swinney had murdered Michael Brown.

<div style="font-size: 85%;">
<sup>68</sup> [[Richmond Enquirer, 10 June 1806|Richmond ''Enquirer'', Jun. 10, 1806]].
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===Page 569===

<blockquote>
Nevertheless, we can record the fact that those jurymen are the only persons known to have expressed at any time in or since 1806 an opinion that Swinney was not a murderer. William Wirt had concluded that Swinney could conceivably be innocent of the charge, but Wirt left no record now extant that he actually believed Swinney to be the victim of an unjust accusation. The common impression throughout the summer of 1806 was that Swinney had committed two premeditated murders. That opinion has remained unchanged to this day.

George Wythe Swinney had escaped death by hanging. It remained to be seen whether or not he would become permanently branded a convicted forger. Within another twenty-four hours he received a tentative answer to this second question. On Thursday, September 3, 1806, he was adjudged guilty on two of the forgery indictments.<sup>69</sup> But these verdicts were not allowed to stand unquestioned. Within ten days William Wirt pleaded successfully, "in an eloquent and ingenious speech" addressed to Judges Prentis and Tyler of the District Court, for arrest of judgment. Wirt's objections were considered acceptable by the two judges and were referred to the next session of the General Court for approval or rejection.<sup>70</sup> Wirt had changed his mind since his assertion in June that Swinney would doubtless be convicted of the forgery charges.

Someone else had come earlier than Wirt to the conclusion that the laws of Virginia would not justify inflicting punishment on Swinney for having obtained certain things of value at the state's bank by using forged signatures. Indeed, former Governor Page had decided in June that what Swinney had done at the Bank of Virginia was a crime only against God, not against any law of the Commonwealth of Virginia. "As to this young Man's Forgeries," Page had commented in highly moralistic vein but with a practical twist, "when religion is out of the way, I can see nothing in our law, that could restrain him, or any one else from a free exercise of that lucrative Employment. But for a sense of religion, I myself could not have done a better act for the Benefit of my Wife & Children, than to have . . . died . .. consoled with the pleasing reflection that I had handsomely provided for my Family, in a way permitted, nay chalked out by our Laws." <sup>71</sup>

<div style="font-size: 85%;">
<sup>69</sup> [[Richmond Enquirer, 9 September 1806|''Ibid.'', Sept. 9, 1806]].

<sup>70</sup> Richmond ''Virginia Gazette, & General Advertiser'', Sept. 13, 1806.

<sup>71</sup> Page's letter continued: "I could, if under no religious impressions, tell my Wife & Children, that no one would think the worse of them for what I had done; and indeed that they would always be respected in proportion to their riches, and
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===Page 570===

<blockquote>
Could it be true, as Page thought he perceived, that Swinney had violated no law by his use of counterfeited signatures of George Wythe? Almost entirely so, declared the General Court in two quite technical opinions on November 17, 1806, with Judges [[wikipedia:Francis T. Brooke|Francis T. Brooke]], [[wikipedia:Paul Carrington (judge)|Paul Carrington, Jr.]], [[wikipedia:Hugh Holmes (Virginia politician)|Hugh Holmes]], [[wikipedia:Archibald Stuart|Archibald Stuart]], [[wikipedia:John Tyler, Sr.|John Tyler, Sr.]], and [[wikipedia:Robert White (judge)| Robert White]] on the bench. They learned that the District Court's jury had convicted Swinney on an indictment for having obtained from the Bank of Virginia on May 27, 1806, a ''banknote'' for $100. In order to do so, he had presented to William Dandridge both a counterfeited letter and a forged check purporting to have been written and signed by Wythe. But the judges also heard that the arrest of judgment had been awarded on the ground that the forgeries of which Swinney had been accused did not actually constitute offences against a Virginia statute enacted in 1789, which was the only law the forgery indictments against him had contrived to mention.<sup>72</sup>

For one thing, William Wirt had argued that the 1789 law "was intended to punish a pre-existing evil" and could not possibly have reference to any bank, since no bank was established in Virginia until "many years" later. In the second place, Wirt contended that the law's phraseology, as well as its date, precluded any possibility of its being applied to the Bank of Virginia. The statute made illegal any deceitful deed, bill of sale, or other such document that would result in the robbery of one or more "private individuals." The bank could not properly be considered a

<div style="font-size: 85%;">
that both I and they would have been despised had I left them poor—that therefore the riches I had acquired for them would secure them respect in this World, and that as to any other, they need not trouble themselves about it—that they ought to enjoy their hearts desire in all things, and say 'let us eat & drink for tomorrow we die.' . . . But believing as I do in a divine revelation, I had rather perish with my Wife & Children through absolute Want, than that any one of us, should do one unjust or dishonest Act." John Page to St. George Tucker, Jun. 29, 1806, Tucker-Coleman Papers.

<sup>72</sup> The law that Swinney was alleged by the indictment to have broken had been adopted on Nov. 18, 1789. It was entitled "An act against those who counterfeit letters or privy tokens, to receive money or goods in other men's names." It provided that "if any person or persons, shall falsely and deceitfully obtain or get into his or their hands or possession, any money, goods or chattels of any other person or persons, by colour and means of any such false token or counterfeit letter, made in any other man's name as is aforesaid; every such person and persons so offending, and being thereof lawfully convicted in the court of the district, in which such offence shall have been committed," shall be subject to a maximum term of one year in prison and to "setting upon the pillory." Hening, ''Statutes'', XIII (Philadelphia, 1823), 22.
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===Page 571===

<blockquote>
"person or persons" within the meaning of the law. It was "a body corporate, an ideal body," and "no more a person, than the commonwealth of Virginia." Anything, therefore, that Swinney had obtained from the bank could not have been procured in violation of a law that made punishable the getting by false means of "any money, goods or chattels of any other person or persons." And in the third place, Wirt argued, what Swinney had received was not part of "the money or goods of the said George Wythe, because having been delivered under a check not drawn by him, the bank hath no right to charge it to his account."

In connection with the ''banknote'' in question under the first indictment, the General Court found Wirt's claims convincing enough. Its judges concluded that they should grant a permanent arrest of judgment. Thus they reversed the petit jury's verdict that Swinney was guilty; thus they pronounced him innocent of the crime alleged to have occurred on May 27. While Wythe lay on his deathbed that Tuesday, Swinney had perpetrated a forgery, but it was not an unlawful forgery.

The other indictment under which the District Court had found Swinney guilty of a violation of the same statute was quite similar to the first. The second differed in only one significant particular. It involved $50 that Swinney had obtained from the bank by the same means on April 11, 1806, in the form of ''currency''. Wirt's appeal in the District Court for an arrest of judgment had been won on the same three grounds, and they were pleaded anew as sufficient cause for making the temporary ban against sentence upon Swinney a permanent one.

In this instance the General Court did not agree. It refused to accept Wirt's argument that the "''money current''" Swinney had gotten at the bank in April could not properly be charged against the account of Wythe, by virtue of the forged check, and was therefore not Wythe's money until Swinney had acquired possession of it falsely. Evidently, Virginia's supreme tribunal for criminal law decided that neither of Wirt's first two points was valid in respect to either indictment and that the validity of Wirt's third contention depended entirely upon the natures of the two kinds of property the forger had received. In other words, the six judges' two decisions meant, essentially, that the promissory ''banknote'' Swinney obtained on May 27 had not been Wythe's "money, goods or chattels" but that the ''currency'' involved in the similar transaction of April 11 had been. If this distinction seems subtle, thin, and flimsy, it appears to have been not more so than whatever reasoning persuaded the judges to ignore
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===Page 572===

<blockquote>
Wirt's assertions that the 1789 law was not at all pertinent to the later means of "getting something for nothing" upon which an unconsciously clever forger had stumbled. The chagrined John Page, who had been Governor of Virginia when the state bank was established, had believed on June, 1806, that none of Swinney's forgeries was illegal. Page had been much disconcerted by his discovery that the commonwealth had not foreseen and had not prohibited such misuses of another's signature. The General Court, on the other hand, professed to believe that one of Swinney's forgeries had inadvertently violated a law more than fifteen years old and obviously designed to curb other frauds wrought by means if forgery. Consequently, the court decreed that punishment should be imposed upon Swinney under the second indictment by the District Court.<sup>73</sup>

Nevertheless, according to a report derived from official records that are not now extant, the District Court did not execute its sentence, which was that Swinney should spend one hour in the pillory at Richmond's public market and six months in prison. Contrary to the General Court's decree and for reasons inexplicable today, the District Court is said to have granted Swinney a second trial on the indictment the higher court had upheld, and then the attorney for the commonwealth declined to prosecute the case.<sup>74</sup>

Thus freed, technically at least, of all charges against him, but with a reputation he would never be able to live down locally, the "unfortunate" Swinney "then sought refuge in the West, where his career was brought to a premature and miserable close."<sup>75</sup> So reads one account, written about the middle of the nineteenth century, of the end of the life of

<div style="font-size: 85%;">
<sup>73</sup> William Brockenbrough and Hugh Holmes, ''[[Commonwealth against George Wythe Swinney|Collection of Cases Decided by the General Court of Virginia, Chiefly Relating to the Penal Laws of the Commonwealth, Commencing in the Year 1789 and Ending in 1814, Copied from the Records of Said Court, with Explanatory Notes]]'' (Philadelphia, 1815), 146-151.

<sup>74</sup> Minor, "[[Memoir of the Author]]," in Wythe, ''Decisions'', xxviii. In a footnote on that page Minor asserted: "The records of these proceedings [in the District Court after the return to it of the decree of the General Court in the last of tie suits of the Commonwealth v. Swinney] have been consulted in the office of tie Superior Court of Law for Henrico County." Minor wrote those words in or before 1852. Presumably, reorganizations of Virginia's judicial system between 1806 and 1852 account for the fact that records of the District Court in Richmond for its Apr., 1807, term (the first session it was scheduled to have after the Nov., 186, term of the General Court) had come by 1852 into the custody of the Superior Court of Law for Henrico County. The fire in Richmond during April 2-3, 1865, apparently explains their disappearance.

<sup>75</sup> ''Ibid''.
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===Page 573===

<blockquote>
the young man to whom George Wythe had been "kinder than a Father."<sup>76</sup> According to the memory of another Richmonder fifty years after George Wythe Swinney had been a defendant in the capital's courtrooms, Swinney went to Tennessee, stole a horse, served a term in a penitentiary, and was "then lost sight of."<sup>77</sup> The forgeries that preceded and led directly to the death of George Wythe may not have been plainly and provably crimes against the Commonwealth of Virginia. But they served one useful purpose, for they pointed out a glaring loophole in Virginia's laws. The state acted promptly to plug that gap. On the last day of the same year the General Assembly adopted and put into immediate effect "An ACT to punish certain thefts and forgeries." That law clearly defined as a crime every deed by which any person should "fraudulently obtain, or aid or assist in obtaining from the Bank of Virginia, or any of its offices of discount and deposit, any bank or post note, or money, by means of any forged or counterfeit check or order whatsoever, knowing the same to be forged or counterfeited." Violators of the new statute, when they were properly found guilty in court, were to be imprisoned for "not less than two, nor more than ten years."<sup>78</sup>

In the final analysis, we may guess, George Wythe Swinney escaped death on the gallows because of three considerations. One of these seems to be the forgiveness Wythe himself gave him. That could not alter one whit Swinney's legal liability to pay the penalty for murder, but it may have influenced, both consciously and unconsciously, the men who prosecuted and defended Swinney, those who testified, the judges who decided what evidence was admissible, and the twelve "good men and true" who retired to a jury room in the September trial. A second determining factor probably was the failure of the physicians to perform complete autopsies and thus to be prepared to assert unequivocally on the witness stand that, in their professional judgments, the deaths of Michael Brown and George Wythe had been caused by arsenic poisoning. Such testimony would have become, quite possibly, the "clincher" that would have strengthened the

<div style="font-size: 85%;">
<sup>76</sup> William DuVal to Thomas Jefferson, [[Jefferson-DuVal Correspondence#William DuVal to Thomas Jefferson.2C 4 June 1806|Jun. 4, 1806]], Jefferson Papers.

<sup>77</sup> Dove, "[[Memoranda Concerning the Death of Chancellor Wythe|Memoranda]]." Although Minor accepted Dr. Dove's recollections they are so untrustworthy in matters that can be checked that the unsubstantiated statements concerning Swinney's life after he escaped the clutches of the law in Richmond made by both Dove and Minor must be considered traditionary rather than supported by valid evidence.

<sup>78</sup> Shepherd, ''Statutes'', III, 289.
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===Page 574===

<blockquote>
web of circumstantial evidence against Swinney enough to put a knotted rope around his neck. A third presumed factor was inherent in Anglo-American jurisprudence. The doctors and other Virginians who participated as witnesses, attorneys, jurymen, and judges in Swinney's final trial for murder were honorable men. They cleared him of the accusation because, evidently, they thought it important to save the life of a young man who ''might'' be innocent, although he certainly seemed not to be. George Wythe himself would doubtless have had the same respect for the legal principle of a reasonable doubt.

Did Virginia justice suffer a miscarriage in 1806? For want of complete records, we cannot properly lift our second-guessing voices to cry that it went wrong. But we can agree heartily with the opinion held by Wythe himself and never relinquished by most of his sympathetic but straightforward contemporaries—the belief that, by every standard other than the technical ones of the law, Swinney had assuredly done serious wrongs. Like Wythe's survivors, we can only take comfort in the fact that Virginia justice may have avoided adding another wrong to Swinney's and in the fact that his chief victim, Chancellor Wythe himself, the "Virginia Socrates" and the "American Aristides," had achieved on his deathbed, by revoking his generous bequests to Swinney, one final act of obvious equity.
</blockquote>

==See also==

*[[Commonwealth against George Wythe Swinney]]
*[[Honest Lawyer]]
*[[Hustings Court Minutes]]
*[[Hustings Court Order Book]]
*[[Jefferson-DuVal Correspondence]]
*[[Life of William Wirt]]
*[[Memoir of the Author]]
*[[Memoranda Concerning the Death of Chancellor Wythe]]
*[[Murder of George Wythe]]
*[[National Intelligencer, 15 December 1806]]
*[[Richmond Enquirer, 8 July 1806]]
*[[Richmond Enquirer, 10 June 1806]]
*[[Richmond Enquirer, 9 September 1806]]
*[[Virginia Argus, 10 June 1806]]
*[[Virginia Argus, 17 June 1806]]
*[[Virginia Argus, 25 June 1806]]
*[[Virginia, June General Court, 1806]]

==References==
<references/>

==External links==

*[https://oieahc.wm.edu/ Omohundro Institute of Early American History and Culture]

[[Category:Biographies (Articles)]]
[[Category:Murder of George Wythe]]

Examinations of George Wythe Swinney for Forgery and Murder

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{{DISPLAYTITLE:"Examinations of George Wythe Swinney for Forgery and Murder: A Documentary Essay"}}
[[File:WilliamAndMaryQuarterlyOctober1955Wythe.jpg|thumb|right|400px|Engraved portrait [[George Wythe]] by [[Depictions of Wythe|J.B. Longacre]], from the ''William and Mary Quarterly,'' 3rd ser., 12, no. 4 (October 1955), 512.]]

Wythe scholar W. Edwin Hemphill contributed to a special issue of ''The William and Mary Quarterly'', dedicated to the murder of [[George Wythe]], in October, 1955. The issue was published in accordance with the Marshall-Wythe celebration at the [http://law.wm.edu/ College of William & Mary Law School] on September 25, 1954, for the bicentennial of [[John Marshall|John Marshall's]] birth. The journal pairs Hemphill's essay on "[[Media:HemphillExaminationsOfGeorgeWytheSwinneyOctober1955.pdf|Examinations of George Wythe Swinney for Forgery and Murder]],"<ref>W. Edwin Hemphill, "Examinations of George Wythe Swinney for Forgery and Murder: A Documentary Essay," ''William and Mary Quarterly'' 3rd ser., 12, no. 4 (October 1955), 543-574.</ref> with another by [[wikipedia:Julian P. Boyd|Julian P. Boyd]], "[[Murder of George Wythe]]."<ref>Julian P. Boyd, "[[Media:BoydMurderOfGeorgeWytheOctober1955.pdf|The Murder of George Wythe]]," ''William and Mary Quarterly'' 3rd ser., 12, no. 4 (October 1955), 513-542.</ref> Hemphill had rediscovered witness testimony given for [[Death of George Wythe#Sweeney's Trial|Sweeney's murder trial]] in 1806, and both authors made use of this new information.

Hemphill and Boyd's work was published as a pamphlet reprint the same year, under the title: [https://catalog.swem.wm.edu/law/Record/343766 ''The Murder of George Wythe: Two Essays''] (Williamsburg, VA: [https://oieahc.wm.edu/ Institute of Early American History and Culture,] 1955).

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==Article text, October 1955==
===Page 543===

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'''Examinations of George Wythe Swinney<br />for Forgery and Murder: A Documentary Essay'''<br />W. Edwin Hemphill*
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“I SHUDDER when I think of it." Thus wrote [[wikipedia:John Page (Virginia politician)|John Page]] three weeks after the death of [[George Wythe]] in Richmond on June 8, 1806.<sup>1</sup> Less than a year and a half had elapsed since a "numerous concourse" of Jeffersonian Republicans had gathered at the Washington Tavern in the capital on March 4, 1805, to celebrate the second inauguration of [[Thomas Jefferson]] as the President of the United States. On the joyous occasion of the party's victory banquet Governor Page had asked Judge Wythe to retire and had then proposed a volunteer toast to "George Wythe, distinguished alike for his wisdom and integrity as a magistrate, and his zeal and disinterestedness as a patriot." The tavern's hall had resounded with nine cheers—as many as were given in response to any prearranged or spontaneous toast, even that to the President himself.<sup>2</sup> Nine months later Page had retired from the governorship.

As he sat at his writing desk late in June, 1806, amid the peace and security of "Rosewell," his magnificent home in Gloucester County, John Page reflected upon the saddening, disheartening news he had heard during a recent trip to Richmond. [[William DuVal]], George Wythe's nearest neighbor, had told Page how their mutual friend had suffered and had died—and how very suspect certain circumstances preceding that death seemed. But nothing had yet been proved. So the circumspect Page scribbled to another friend an outburst that was more a sermon than a digest of the evidence. "I know only enough" about the "horrid tale," he remarked in his letter to St. George Tucker, one of Wythe's students and the judge who had succeeded Wythe in the chair of law in the College

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* Mr. Hemphill is Managing Editor of ''Virginia Cavalcade'' and a member of the staff of the Virginia State Library. These depositions were discovered by Mr. Hemphill and are now printed for the first time in this issue of the ''Quarterly''.

<sup>1</sup> John Page to [[St. George Tucker]], Jun. 29, 1806, Tucker-Coleman Papers, Colonial Williamsburg.

<sup>2</sup> Richmond ''Enquirer'', Mar. 8, 1805.
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[[File:BoydHemphillMurderOfGeorgeWytheTwoEssays1955.jpg|thumb|right|400px|Title page from Boyd and [[Examinations of George Wythe Swinney for Forgery and Murder|Hemphill's]] pamphlet reprint, [https://catalog.swem.wm.edu/law/Record/343766 ''The Murder of George Wythe: Two Essays''] (Williamsburg, VA: Institute of Early American History and Culture, 1955).]]
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of William and Mary, "to shock my Soul." But the former Governor could not forbear comment along other lines. The murder of Chancellor Wythe, he exclaimed, made him "feel for humanity—and the wounded honor of my Country!"<sup>3</sup>

[[wikipedia:William H. Cabell|Governor William H. Cabell]], Page's successor, was also distressed. He reminded one of his sisters-in-law of their experience when they had visited a Miss Nelson, who had then been living in the modest Richmond home of her uncle, the widowered, scholarly Chancellor. "She and all of us were almost children, and few grown men would have found any interest in staying in the room where we were. But the good old gentleman brought forth his philosophical apparatus and amused us by exhibiting experiments, which we did not well comprehend, it is true, but he tried to make us do so, and we felt elevated by such attentions from so great a man."<sup>4</sup>

The up-and-coming [[wikipedia:William Wirt (Attorney General)|William Wirt]], who had served for a year in a judicial office coordinate with that of the victim,<sup>5</sup> wrote from Norfolk to [[wikipedia:James Monroe|James Monroe]], who was abroad, in indignant terms about the "dose of arsenick administered" to "poor old Chancellor Wythe."<sup>6</sup> Five weeks later Wirt could assure his absent wife, "I dare say you have heard me say that I hoped no one would undertake the defence of [the accused, George Wythe] Swinney, but that he would be left to the fate which he seemed so justly to merit."<sup>7</sup>

The editor of a Richmond newspaper was upset enough to describe his news announcement of the death as a "painful task."<sup>8</sup> An editor in Raleigh, North Carolina, was told "by a gentleman lately from Rich-

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<sup>3</sup> John Page to St. George Tucker, Jun. 29, 1806, Tucker-Coleman Papers.

<sup>4</sup> William H. Cabell to Mrs. William Wirt (undated), quoted in John Pendleton Kennedy, ''[[Life of William Wirt#Page 151|Memoirs of the Life of William Wirt, Attorney General of the United States]]'' (Philadelphia, 1849), I, 151-152. Hereafter cited as Kennedy, ''William Wirt''.

<sup>5</sup> Ambitious for wealth, Wirt found his position as judge of the Superior Court of Chancery for the Eastern District irksome, its salary barely adequate in view of his second marriage, which took place in September, 1802. It "is possible," he observed wryly, "that I may, like Mr. Wythe, grow old in judicial honors and Roman poverty. I may die beloved, reverenced almost to canonization by my country, and my wife and children, as they beg for bread, may have to boast that they were mine." [[Life of William Wirt|William Wirt to Dabney Carr]], Feb. 13, 1803, ''ibid.'', 95. In May, 1803, Wirt returned to the practice of law as an attorney, with his residence and headquarters in Norfolk. ''Ibid.'', 87-101.

<sup>6</sup> William Wirt to James Monroe, Jun. 10, 1806, Monroe Papers, vol. XI, no. 1373, Library of Congress.

<sup>7</sup> William Wirt to Elizabeth Gamble Wirt, Jul. 13, 1806, Kennedy, ''[[Life of William Wirt#Page 152|William Wirt]]'', 1, 152-153.

<sup>8</sup> [[Virginia Argus, 10 June 1806|Richmond ''Virginia Argus'', Jun. 10, 1806]].
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mond" about the crime and was thus enabled to "scoop" the world by publishing the first printed details, albeit inaccurate ones, of the "circumstances of this horrid transaction."<sup>9</sup> Newspapers as far away as Boston recorded its effect.<sup>10</sup> Richmond's press devoted an apparently unprecedented amount of space to the modest, touching, but reserved funeral oration by [[William Munford]]<sup>11</sup> and to laudatory tributes received as anonymous communications to the editors; the total aggregated what seems to have been more column inches of eulogy than had been elicited in Virginia newspapers by the death of George Washington or by that of any other person.<sup>12</sup>

Washington's imaginative, opportunistic biographer, Mason Locke Weems, seized upon news that had "quite galvanized" the "very young and tender hearted" in Charleston, South Carolina, as excuse enough for a discursive essay. That itinerant book-peddler described himself as "getting now to be a little oldish . . . , and daily, as becomes a stranger in Charleston, at this season, looking out for a squall of the same sort." Weems viewed with equanimity the fact that "death, by a touch of his old thresher, with equal ease, brings down a Chancellor or a cherry." He professed no grief over the death of the Virginian he portrayed as "[[Honest Lawyer|The Honest Lawyer]]." On the contrary, the effusive "Parson" enjoined joy "that this veteran of the law, after a life of glorious toil, to revive the golden age of justice on earth, was returned to the high courts of heaven-not

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<sup>9</sup> Raleigh, N. C., ''Minerva'', Jun. 16, 1806.

<sup>10</sup> Boston, Mass., ''Gazette'', Jun. 19, 1806, and ''Columbian Centinel'', Jun. 21, 1806.

<sup>11</sup> After the death of Wythe's second wife in 1787, William Munford (1775-1825) had lived in Wythe's home in Williamsburg and had been a special object of Wythe's generous attentions to youth. Grateful, Munford named his oldest child George Wythe Munford "after my old friend and benefactor the Chancellor." William Munford to his sister-in-law, Mrs. Mary R. Preston, Jan. 10, 1803, Munford- Ellis Papers, Duke University Library. Munford, his heart "torn with sorrow," then accepted the Council of State's assignment to preach the funeral oration, partly because "the ties of gratitude to that best of men, for the extraordinary kindness he ever manifested towards me, ought to prohibit my suffering him to go to his grave without an Eulogy." William Munford to Governor William H. Cabell, Jun. 8, 1806, Executive Papers, Virginia State Library. The funeral oration by Munford was printed in its entirety by two Richmond newspapers: Richmond ''Enquirer'', Jun. 13 and 17, 1806; Richmond ''Virginia Argus'', Jun. 17, 1806.

<sup>12</sup> See issues of the ''Enquirer'', the ''Impartial Observer'', the ''Virginia Argus'', and the ''Virginia Gazette, & General Advertiser'' during the first three or four weeks after Jun. 8, 1806. The author's comparison is based upon impressions rather than upon actual counts of the space allotted by Richmond editors to obituaries, eulogies, etc., for Wythe and for such other distinguished citizens as George Washington, who had died in 1799, and Edmund Pendleton, who had died in 1803.
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pale and trembling . . . , wet with widows' tears, and blood of murdered patriots, to meet the tear-avenging God; but bright in conscious integrity, with hands pure as the sweet palms which press the alabaster bottles of life, and in robes of innocence, snow-white as those that angels wear, to meet the smiles of the Judge Supreme, and the acclamations of brother saints innumerable."'<sup>13</sup>

Celebrants of the Fourth of July in 1806 drank toasts to the memory of George Wythe.<sup>14</sup> Restricted to severe brevity by that social form of tribute, those who gathered for the Fourth at Lexington, Kentucky, remembered Wythe simply as "a faithful labourer in the vineyard of the republic."<sup>15</sup> There the orator of the day was Henry Clay, who until his own death remained proud of the fact that he had been associated with Wythe's court during the 1790's. Indeed, young Clay had been the amanuensis who transcribed for publication the Chancellor's annotated decisions, confusingly peppered though they were with Greek phrases Clay had been able neither to understand nor to write well.<sup>16</sup> Saddened by the news that had plunged Richmond into mourning (news that had just reached Lexington), Clay made his address "short and impressive."<sup>17</sup>

The sense of revulsion felt throughout the country crossed party lines as well as state lines. A Federalist organ in the nation's largest city copied from the Richmond ''Enquirer'' two paragraphs of Republican editor Thomas Ritchie's shocked obituary. To those paragraphs it appended the Petersburg, Virginia, ''Republican's'' pointed comment: "It is generally believed, that this patriot, has been brought to the grave, by means, the 'most foul, base and unnatural,' and that the accused is to undergo an examination."<sup>18</sup> Even a modern interpreter of the Old Dominion cites the felony as the worst example of the cussedness—or something worse—

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<sup>13</sup> M. L. Weems, "[[Honest Lawyer|The Honest Lawyer: An Anecdote]]," Charleston, S. C., ''Times'', Jul. 1, 1806.

<sup>14</sup> [[Richmond Enquirer, 8 July 1806|Richmond ''Enquirer'', Jul. 8, 1806]].

<sup>15</sup> Lexington ''Kentucky Gazette'', Jul. 5, 1806.

<sup>16</sup> Henry Clay to B. B. Minor, May 3, 1851, printed in Benjamin Blake Minor, '[[Memoir of the Author]]," in George Wythe, ''Decisions of Cases in Virginia, by the High Court of Chancery, with Remarks upon Decrees, by the Court of Appeals, Reversing Some of Those Decisions'' (2d ed., B. B. Minor, ed., xxxii-xxxvi. Richmond, 1852), Hereafter cited as Wythe, ''Decisions''.

<sup>17</sup> Bernard Mayo, ''Henry Clay, Spokesman of the New West'' (Boston, 1937), 208-209.

<sup>18</sup> Philadelphia, Pa., ''Poulson's American Daily Advertiser'', Jun. 17, 1806. This newspaper attributed the remark to the Petersburg ''Republican'' of an unspecified date.
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that she attributes to Virginians.<sup>19</sup> The murder of George Wythe took at the time top or high rank among the state's most heinous crimes. It still does.

Inevitably, the revolting affair created quite a stir, for people ''will'' talk. Throughout the week before the prostrated Wythe's last breath set the bells of Richmond a-tolling, his death was a foregone conclusion. People marveled that a man of his age could so long survive the excruciating agonies of so insidious and lethal a poison. While Wythe still suffered, strong suspicion was aroused. Circumstances and tangible evidence converted suspicion into conviction at least seven days before the poison produced its ultimate effect upon the Chancellor's strong constitution.

The suspect was as undoubted as was the conclusion that Wythe was a victim of premeditated murder by means of arsenic. Invariably the slayer was identified as the venerable patriot's teen-aged grandnephew and namesake, George Wythe Swinney, an ingrate who had already proved himself unworthy of the home and education he had enjoyed for several years under the hip roof of the Chancellor's unpretentious cottage. Had not that young reprobate stolen books and money from his too-trusting benefactor? Had he not forged checks against his patron's bank account? And had it not been generally known, doubtless by Swinney himself, that he was the chief heir to Wythe's estate, a modest one but doubtless large enough to provide some relief to a culprit in financial difficulties? So, people said, he had placed his fatal dose in the breakfast coffee served in the unsuspecting household on Sunday morning, May 25. Immediately after that meal the good old judge and two freed Negroes had become critically ill. Lydia Broadnax, the Chancellor's faithful cook and servant, recovered. Michael Brown, the mulatto lad to whom Wythe had personally been giving a classical education—Greek and all—as a practical experiment in testing and developing the intelligence of Virginia's other race, had died on the next Sunday, June 1. The Chancellor himself lived in torment—and perhaps toward the end in a merciful coma—through a second week, but he died on the second Sunday morning, June 8. Fortunately, however, he did not expire before he had altered his will to disinherit the villainous Swinney.

Such is the traditional account of the death of Wythe—a paraphrase expanded to greater length than any known to have been written within the next two weeks, doubtless shorter than many conversational versions

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<sup>19</sup> Virginia Moore, ''Virginia Is a State of Mind'' (New York, 1943), 190-191.
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of the time, and certainly embodying the contemporary explanations of the timing, the method, and the motive of the murderer of Michael Brown and George Wythe.<sup>20</sup> This story of the baneful circumstances has persisted ever since 1806. In its retellings it has undergone normal embellishments and amendments. Developments not fully understood when they occurred gave the tale a poor foundation at the start. The recollections of its original narrators grew more and more subject to error with the passing years. Family traditions, transmitted orally, added details and supplied conversations that seem more logical than they are trustworthy. Fanciful emphases and interpretations have been born of assumptions, not of research.

The only substantial modification, however, has been a pronounced tendency to portray the poisoning of Wythe as an accident, while that of Michael Brown has remained the result of intentional murder. This alteration cannot be traced backward beyond 1850. It stems from two sources that were not independent of each other. One was the quite faulty memory of Dr. John Dove of Richmond, who claimed in 1856 that he had been "[[Memoranda Concerning the Death of Chancellor Wythe|present during the sickness & death of Judge Wythe]]." Dove alleged that the Chancellor had been ill before May 25, 1806, and that Swinney had not expected him to eat breakfast that Sunday morning where the poisoned coffee was to be served. The other source was Benjamin Blake Minor, editor of the ''Southern Literary Messenger'', who contributed a biographical sketch to the second edition of the Chancellor's ''Decisions'' (1852). Minor talked with Dr. Dove, who undoubtedly told him something to the effect that Swinney had "vowed vengeance" only against the mulatto boy; and

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<sup>20</sup> Evidently the earliest summaries of the circumstances now extant are in the reliable letters written by William DuVal to Thomas Jefferson on [[Jefferson-DuVal Correspondence#William DuVal to Thomas Jefferson.2C 4 June 1806|Jun. 4 and 8]], preserved in the Jefferson Papers, Library of Congress. Neither attributes to the poisonings a plain method or motive. The earliest written statement as to motivation and method is apparently to be found in the letter of Jun. 10, 1806, from William Wirt in Norfolk to James Monroe, Monroe Papers, vol. XI, no. 1373. That letter was written before Wirt had learned of Wythe's death. Internal evidence in Wirt's letter indicates that the allegations it relayed were based exclusively on information written on Jun. 5, in a letter that has not been found, by Governor William H. Cabell, his brother-in-law. A later account is in the brief, less specific recollection recorded by Littleton Waller Tazewell, who wrote that "it was generally believed" that Wythe's death "was produced by poison, administered in his coffee, by a reprobate boy, a relation of his who he had undertaken to educate, and who was afterwards convicted of having committed many forgeries of checks in his patrons name." "Sketches of his own family, written by Littleton Waller Tazewell, for the use of his children. Norfolk. Virginia. 1823" (MS. in the Virginia State Library), 121.
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Minor found what seemed to him to be sufficient substantiation in Wythe's will and two of its codicils, which made Swinney the residuary legatee of bequests to Michael Brown.<sup>21</sup> Until now the only serious analysis of the traditional account of Wythe's death and of the Dove-Minor misinterpretation has been that of Julian P. Boyd. His lucidly reasoned booklet on ''[[Murder of George Wythe|The Murder of George Wythe]]'' assayed them chiefly by the test of comparison with information found in seven previously unexploited letters written in 1806 to President Jefferson by Wythe's intimate friend and executor, William DuVal.<sup>22</sup>

But other and even better contemporary records are also extant, and it is good that the ''William and Mary Quarterly'' affords space in this issue both for them and Dr. Boyd's thoughtful interpretation, now relatively unavailable. Chief among these additional documents are official court records of the preliminary trials of George Wythe Swinney for forgery and murder. Like pirates' gold buried in a forgotten pit, they lay neglected through more than a century and a quarter despite recurrent curiosity about Wythe's tragic death. These legal records, discovered by the present writer a number of years ago and now published for the first time, contain precious nuggets of authentic information. They include digests of the sworn testimony of sixteen witnesses for the prosecution against Swinney. They add up to a convincing indictment of him. The discovery was made in the office of the Clerk of the Hustings Court of the City of Richmond,<sup>23</sup> where the documents lay within the

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<sup>21</sup> Both of the phrases quoted above are from Dr. Dove's recorded recollections, which are replete with provable errors and must be considered wholly suspect. "[[Memoranda Concerning the Death of Chancellor Wythe|Memoranda concerning the death of Chancellor Wythe]]—Signed in the Aut[o]-g[rap]h. of T[homas]. H. Wynne and rec'd by him from Dr. John Dove, Sept. 16, 1856," MS. in the Brock Collection, Henry E. Huntington Library and Art Gallery. Hereafter cited as Dove, "Memoranda." For evidence that John Dove, M.D., was a Richmond practitioner from about 1822 to about 1852, see Wyndham B. Blanton, ''Medicine in Virginia in the Nineteenth Century'' (Richmond, 1933), 48, 76, 91, 238, 240. For evidence that Dove influenced Minor directly, see Minor, "[[Memoir of the Author]]," in Wythe, ''Decisions'', xxvii.

<sup>22</sup> Julian P. Boyd, ''[[Murder of George Wythe|The Murder of George Wythe]]'' (Philadelphia, 1949).

<sup>23</sup> Binder's title "[[Hustings Court Order Book|Order Book No. 6, 1804-1806]]," 464-465, 482-488. Rough drafts of the records for these two cases of the Commonwealth v. Swinney—drafts identical to the final ones in every important respect—can be found in the same office in the volume given the binder's title of "[[Hustings Court Minutes|Minutes No. 3, 1802-1806]]" (MS. with pages not numbered) under dates of Jun. 2 and 23, 1806, respectively. Microfilm copies of both the Minute Book and the Order Book are available in the Virginia State Library. The final drafts of the two documents have been transcribed from the Order Book for publication below.
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domain of the very court to which the laws of Virginia prevailing in 1806 required that such an offender in Richmond as Swinney should be brought first for any trial of which an official record would have been kept. When Richmond had been incorporated in 1782, it was made a unit of local government. The General Assembly had provided by law for the annual election of twelve citizens to serve in their spare time as municipal officials. Half of them were to constitute a legislative Common Council. The remaining six—a mayor, a recorder, and four aldermen—were commanded "to hold a court of hustings" each month. Its jurisdiction in Richmond corresponded to that of a county court within county boundaries. Each of the judges of the Hustings Court had been vested with the powers of a justice of the peace, and they had been specifically assigned the duty "of examining criminals for all offences committed within the limits of the said corporation." If they found a defendant guilty of a serious crime, they were to refer him to a higher court for trial before professional judges and a jury.<sup>24</sup> These governmental and legal arrangements for the preservation of law and order had been modified only slightly in later statutes, but a law of 1803 had increased the membership of the Common Council to fifteen and that of the Hustings Court to nine, doubtless in recognition of Richmond's growth to a population of more than five thousand.<sup>25</sup> We shall find that not all of our questions are answered by these documents, but no searcher for the treasure-trove could reasonably have expected it to be so rich. Yet it multiplies by many times the amount of contemporary data at our disposal. It enables us to confirm some details reported unofficially at the time and to correct others. It supplies us with vivid portraits of a gloomy, wicked, and yet remorseful youth; of the last days of a questioning, then convinced, and ultimately forgiving victim; of the anxious solicitude and growing outrage of the latter's friends; and of their transition from innocent acceptance of his serious illness as a natural thing to mounting suspicion, relatively thorough investigation, and distressing proof of the poisoner's guilt. Coupled with our greater knowledge of toxicology and with other contemporary records not utilized

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<sup>24</sup> William Waller Hening, compiler, ''The Statutes at Large ... of Virginia . . .'' (Richmond, Philadelphia, New York, 1819-1823,) XI (Richmond, 1823), 45-51. Hereafter cited as Hening, ''Statutes''.

<sup>25</sup> ''Ibid.'', XII (Richmond, 1823), 407-408; Samuel Shepherd, compiler, ''The Statutes at Large of Virginia,. . . 1792, to . . . 1806 . . .'' (Richmond, 1835-1836), II, 93, 422-425, III, 73-75. Hereafter cited as Shepherd, ''Statutes''.
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by previous investigators, it affords us a surer understanding of the grim story of the unpunished forgeries and murders committed by George Wythe Swinney than was vouchsafed to any of the people who mourned the death of Chancellor Wythe and sought with decreasing fervor to do justice to the cause of it—a more reliable understanding, indeed, than any of our predecessors attained.

The official record of the examination of Swinney for alleged forgery reads as follows:

At a Court of Hustings called and held for the City of Richmond at the Courthouse, on Monday, the second day of June 1806, for the examination of George W. Swinney,<sup>26</sup> who stands accused of forgery.<sup>27</sup>

Present

Edward Carrington, Gentleman, Mayor,

Samuel Pleasants, Gentleman, Recorder,

Henry S. Shore, William Goodwin, Anderson Barret,

David Lambert and William Richardson, Gentlemen, Aldermen.

The prisoner was led to the bar in custody of the Sergeant of this City; whereupon sundry witnesses were sworn and examined, and the prisoner in his defence fully heard: On consideration whereof, the Court is of opinion that the prisoner is guilty of the offence aforesaid, and doth order that he undergo a trial therefor at the next District Court directed by law to be holden at the Capitol in this City: and it is further ordered that the said George W. Swinney be bound in a recognizance in the penalty of one thousand dollars, with suf-

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<sup>26</sup> George Wythe Swinney, whose surname occurs in contemporary records also in the form of various spellings of Sweeney, was a grandson of George Wythe's sister and hence a grandnephew of Wythe. For genealogical information concerning him and related Sweeneys see W. Edwin Hemphill, George Wythe the Colonial Briton: A Biographical Study of the Pre-Revolutionary Era (Doctoral Dissertation, University of Virginia, 1937), 40.

<sup>27</sup> Swinney had doubtless been accused of forgery as the result of a preliminary hearing before one or more of the municipal magistrates or justices of the peace, presumably within the last five days of the preceding week, May 27-31, as is indicated by the testimony of the first witness below. William Wirt enumerated a few other manifestations of dishonesty on Swinney's part that had been preludes to his climactic crime: "The young villain (only about 16 or 17) had been in the habit of robbing his uncle [i.e., his granduncle, George Wythe] with a false-key, had sold three trunks of his most valuable law-books, had forged his checks on the bank to a considerable amount, & wound up his villainies by this act [of murder]." William Wirt to James Monroe, Jun. 10, 1806, Monroe Papers, vol. XI, no. 1373.
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ficient security in a like penalty, for his personal appearance before the Judges of the said district Court, on the first day of the next term thereof, to answer the Commonwealth of the offence aforesaid; and failing to give the security required, he is remanded to jail until he shall give such security, or shall be otherwise discharged by the course of law.

William Dandridge (Teller of the Bank of Virginia) a witness on the foregoing examination, being sworn, deposeth and saith: That on Tuesday last [May 27], the prisoner produced to him at the bank of Virginia, a check thereon for the sum of one hundred dollars, drawn in the name of George Wythe esquire, which the deponent paid. That some time after, on examining the check, he suspected it to be a forged one, and he thereupon went to the prisoner and stated that he believed there was a mistake in said check; That the prisoner immediately produced the money and delivered the same to the deponent. That the prisoner frequently presented checks at the bank in the name of the said George Wythe; and the deponent verily believes that six checks now produced in Court were presented by the prisoner, and are all counterfeited.

Peter Tinsley,<sup>28</sup> another witness sworn on the said examination deposeth and saith: That he carried to George Wythe esquire seven checks drawn in his name on the bank of Virginia, who denied having drawn or signed more than one of them.

William Dandridge and Peter Tinsley here in Court acknowledge themselves indebted to his Excellency William H. Cabell governor or chief magistrate of the Commonwealth of Virginia, in the sum of one hundred pounds each, of their respective goods and chattels, lands and tenements, to be levied, and to the said governor and his successors, for the use of the said Common-wealth rendered: Yet upon this Condition, that if the said William Dandridge and Peter Tinsley shall severally make their personal appearance before the Judges of the District Court directed by law to be holden at the Capitol in this City, on the first day of the next term thereof, to give evidence on behalf of the Commonwealth against George W. Swinney, who stands accused of forgery, and shall not depart thence without the leave of the said Court, then this recognizance is to be void.<center>
(Minutes signed) E: Carrington Mayor<sup>29</sup>
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<sup>28</sup> Tinsley was for many years Clerk of the High Court of Chancery.

<sup>29</sup> One item of corrective evidence is brought out in this record. Unofficial reports of 1806, whenever they stated or implied a chronology for Swinney's crimes, invariably indicated that his forgeries and the discovery of them preceded his poisoning of Judge Wythe. On the contrary, Dandridge testified that Swinney was sus-
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The official record of the examination of Swinney on the charge of murder is a remarkably detailed one. Its unusual length doubtless reflects a common impression of the uncommon nature and circumstances of the alleged crime. The record reveals utter desperation on the part of an al-most deranged Swinney. It portrays the mounting growth of suspicion during illnesses that might have been provoked by merely natural causes. It embodies observations that link Swinney conclusively with ratsbane (white arsenic) and yellow arsenic. It records medical symptoms and measures that are not nice but seem necessary. And it indicates reserve on the part of three physicians when they gave under oath their professional judgments whether or not the death of George Wythe could be attributed to arsenic poisoning. This record is as follows:

At a Court of Hustings called and held for the City of Richmond at the Courthouse, on Monday, the 23d. day of June 1806, for the examination of George W. Swinney, who stands accused of murder.<sup>30</sup>
Present

The Same Justices as above.<sup>31</sup>

The prisoner was led to the bar in custody of the Sergeant of this City; where-upon sundry witnesses were sworn and examined, and the prisoner in his

<div style="font-size: 85%;">
pected for the first time of his forgeries after he had presented a sixth forged check at the bank on Tuesday, May 27. That Tuesday will be found to have been two or three days after Swinney had poisoned Wythe. On that Tuesday the Chancellor lay abed in the early stages of his mortal illness. That is one reason—and his charitable, compassionate nature may be another—for the fact that Wythe himself did not testify in court which of the seven checks "carried" to him by Tinsley he had not signed personally. Further details about the six forgeries will be revealed later in this article.

<sup>30</sup> The accusation against Swinney for the alleged murders of "Wythe & Michael Brown the Freed Boy" had resulted, in keeping with Virginia law, from a hearing held on Jun. 18 before Mayor Edward Carrington and two other magistrates or aldermen. On that occasion the examination of witnesses "lasted near Five Hours." The mayor and his two colleagues "were of Opinion that they, Mr. Wythe & Michael, were poisoned by Geo. W Sweeney." The suspect was ordered to be held in jail to await trial by the Hustings Court as a "Court of Examination" on Jun. 23. William DuVal to Thomas Jefferson, [[Jefferson-DuVal Correspondence#William DuVal to Thomas Jefferson.2C 19 June 1806|Jun. 19, 1806]], Jefferson Papers. Cf. Shepherd, ''Statutes'', III, 73-75.

<sup>31</sup> That is to say, the same six who had been present for the trials of earlier cases on Jun. 23: Mayor Edward Carrington, Recorder Samuel Pleasants, Jr., and Aldermen Henry S. Shore, Anderson Barret, David Lambert, and William Richardson. Aldermen William DuVal, William Goodwin, and Thomas Underwood did not sit as judges for this examination. DuVal attended as a witness.
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===Page 554===

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defence fully heard: On consideration whereof, the Court is of opinion that the prisoner is guilty of the offence aforesaid, and doth order that he undergo a trial therefor before the next District Court directed by law to be holden at the Capitol in this City: and thereupon the said George W. Swinney is remanded to jail.<sup>32</sup>

Tarlton Webb,<sup>33</sup> a witness for the Commonwealth on this examination, being sworn, deposeth and saith: That about a fortnight or three weeks be-fore the prisoner was committed to jail, he enquired of the deponent where he could procure any ratsbane? The deponent replied that it was against the law of the United States to have it. The day before the prisoner was apprehended,<sup>34</sup> he came to the house of the deponent's mother, and shewed the depon[en]t something wrapped in paper, which he said was Ratsbane, and in-formed the deponent that he intended to kill himself, and offered to give the deponent some if he wanted to die. The deponent being shown some drugs found in the jail and produced in Court by Mr. [William] Rose,<sup>35</sup> deposes that what the prisoner showed him was like that in Mr. Rose's possession, and that there was about one table spoonful. The prisoner stated to the deponent that he was very unhappy and something pressed upon his mind; but though applied to, would not disclose the cause of his uneasiness to the deponent.

William Rose,<sup>36</sup> another witness sworn on this examination, deposeth and

<div style="font-size: 85%;">
<sup>32</sup> The [[Virginia, June General Court, 1806|Richmond ''Enquirer'', Jun. 24, 1806]], printed the following announcement of the decision: "George W. Swinney was yesterday called before the examining court of this city, on the charge of poisoning his great Uncle, the venerable George Wythe, and a servant boy. He was unanimously remanded to jail for further trial before the district court to be had in September next." Although it was not particularly customary for crime news, especially courtroom news of this tentative sort, to be widely reprinted, this item reappeared in such representative newspapers as the Richmond [[Virginia Argus, 25 June 1806|''Virginia Argus'', Jun. 25, 1806]]; the Alexandria ''Virginia Gazette, & General Advertiser'', Jun. 25, 1806; the Washington, D. C., ''National Intelligencer, and Washington Advertiser'', Jun. 30, 1806, and ''Universal Gazette'', Jul. 3, 1806; the Augusta, Ga., ''Chronicle'', Jul. 12, 1806; and the Savannah, Ga., ''Columbian Museum & Savannah Advertiser'', Jul. 12, 1806, and ''Georgia Republican'', Jul. 15, 1806.

<sup>33</sup> This witness has not been identified positively. His testimony suggests that he was probably a youthful friend of Swinney.

<sup>34</sup> Swinney was arrested on Wednesday, May 28, or Thursday, May 29, according to testimony given in this examination by witness William DuVal, reproduced below. Webb's testimony here to the effect that Swinney told him on May 27 or May 28 that "something pressed upon his [Swinney's] mind" can be, therefore, a veiled reference by Swinney himself to worry and remorse because of the way he had used poison, with results that had not yet proved fatal, and possibly also because of the forgery committed and detected on Tuesday, May 27.

<sup>35</sup> For an identification of William Rose see the next paragraph and footnote 36.

<sup>36</sup> Rose was the public jailor of Richmond. Richmond ''Enquirer'', Jul. 8, 1817. Rose's
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===Page 555===

<blockquote>
saith: That his servant girl Pleasant, went into the garden about twelve o'clock the day after the prisoner was committed to jail and brought the paper this day produced [in court], the contents of which the deponent immediately knew to be arsenic. When the prisoner was committed to jail, the deponent did not search him; but about an hour and a half after, or thereabouts, hearing that it was probable he had pistols, he went into the jail and felt his pocket, and felt that there was a heavy substance wrapped in paper; but supposing that it might be coppers, or some few eighteen penny pieces, he did not take it out of his pocket. The prisoner had the use of the debtors room and the jail yard at his option. As soon [as] the arsenic was found the deponent suspected that Mr. Wythe was poisoned.

Samuel McCraw,<sup>37</sup> another witness sworn on the said examination, deposeth and saith; That being informed by Mr. Rose, that arsenic had been found in his garden, he proposed to have the servant carried into the garden to see the place where [the arsenic had been] found, to ascertain whether it was deposited there, or thrown from the jail yard. That at the place where the servant stated the arsenic to have been found, the deponent found two papers lying about eighteen inches apart: That the crude arsenic had penetrated a little into the earth, and there were two plants one a fennel, the other a beat [''sic''], broken off as he supposed by the throwing the arsenic over the jail wall: The deponent thinks it must have come from the jail yard. The beat [''sic''] that was wounded was next [i.e., nearer] the jail wall and was wounded considerably farther from the ground than the fennel. On the first of June, one week after Mr. Wythe's attack [began], the deponent was re-quested to go to attest [the final codicil to] Mr. Wythe's will. Mr. Wythe re-quested the prisoner's room and trunk to be searched. The deponent, with others, was conducted to the room where the prisoner lodged, opened the chest and found a port folio with a quire of blotting paper, which the deponent believes to be of the same kind with what was found wrapped round the arsenic found in the garden. In the prisoner's room on a writing table, the deponent found a paper on which were a half a dozen strawberries with the appearance of arsenic having been sprinkled over them. He found a phial with an appearance of having had a liquid, some of which adhered to the side of the phial, and on examination was believed to have been a mixture of testimony and that of the next witness make it plain that the former's residence and garden adjoined the jail.

<div style="font-size: 85%;">
testimony and that of the next witness make it plain that the former's residence and garden adjoined the jail.

<sup>37</sup> McCraw was one of the four witnesses who signed the final codicil to Wythe's will. Minor, "[[Memoir of the Author]]," in Wythe, ''Decisions'', xxxviii-xxxix.
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===Page 556===

<blockquote>
arsenic and sulphur. He also found two pieces of coarse brown paper, with something adhering to each, which was also declared to be arsenic and sulphur. The deponent frequently visited Mr. Wythe in his last illness and he appeared to be in very great agony from the first time to his death. Some time before the death of Mr. Wythe, while this deponent was sitting by him, Mr. Wythe exclaimed, cut me—the deponent supposed he wanted to have his flannel cut loose which the deponent accordingly did, but which gave apparent displeasure to Mr. Wythe, who then putting his hand to his throat and heart again called out, cut me, but could make no further explanation: this induced a belief in the deponent and those present that it was his wish to be opened after his death. The deponent never did hear Mr. Wythe express any suspicion of having been poisoned.

Fleming Russell<sup>38</sup> another witness sworn on the said examination deposeth and saith; That the day he received the warrant [for the arrest of Swinney] he went to Mr. Wythe's and found the prisoner: when he showed the prisoner the warrant and carried him to Major DuVal's & discovered he had no pistols, took his knife from him, and put his hand in his coat pocket, he felt very distinctly that he had two separate parcels of something wraped up in paper in his pocket but made no further search. After the prisoner was committed to jail, the deponent informed Mr. Rose, that the prisoner had some-thing else in his coat pocket and advised him to make a search, but did not go with Mr. Rose to make it.

Taylor Williams<sup>39</sup> a witness sworn on the said examination deposeth and saith; That about three weeks before the prisoner was apprehended, he mentioned something to the deponent about poison. The deponent informed him that copperas [i.e., crystallized ferrous sulphate] and water was poison. In about six or seven days after, the prisoner began a conversation with the deponent about poison: the deponent then told him ratsbane was poison, and that a gentleman of his acquaintance used it for the purpose of killing rats, and that [it] was to be bought in the shops, but does not recollect with certainty whether the prisoner asked him where it might be had.

Major William DuVal<sup>40</sup> another witness sworn on said examination de-

<div style="font-size: 85%;">
<sup>38</sup> This witness has not been identified. Judging from his testimony, he must have been a Richmond police officer.

<sup>39</sup> Williams appears from his testimony to have been a young friend of Swinney.

<sup>40</sup> William DuVal was of Huguenot descent, an officer during the Revolutionary War, an attorney, a member of the Virginia General Assembly, a magistrate of Richmond who had served as mayor during 1805-1806, and an intimate friend of Wythe, whose residence was also located in the square bounded by Grace, Sixth, Franklin,
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===Page 557===

<blockquote>
poseth and saith; that on the 25th day of May, he went to see Mr. Wythe, without knowing he was sick, and found him very ill[,] extended on his back. Mr. Wythe said he had not caught cold, that he was as well as usual in the morning, & eat his brea[k]fast as usual; but was immediately taken extremely ill, confined on his back except when forced up, which was upwards of forty times, and had fifteen large evacuations. After the prisoner was committed for the forgery he applied to the deponent by letter to be bailed. Mr. Wythe would have nothing to do with bailing [Swinney]. Mr. Wythe said he was taken ill on the twenty fifth day of May, about nine o'clock after having eat his break-fast; that on wednesday or thursday after, the prisoner was apprehended. Mr. Wythe requested that the prisoner's room and trunk might be searched, which request he repeated frequently, and finally on the first of June prevailed on Mr. McCraw and some other gentlemen who searched the room and trunk and found some papers with something adhereing to them which was declared by Doctor Greenhow<sup>41</sup> to be arsenic. The deponent saw the appearance of arsenic in an out house of Mr. Wythe's, in his yard, used as a shop; and [de-poseth] that some was also found in an old smoak house on a wheel barrow; which on being tried with a pin was proved to be arsenic. On thursday before Mr. Wythe's death he made an ejaculation and declared he was murdered in a low tone of voice. It was generally believed that Mr. Wythe had left the prisoner a great portion of his estate, and known that he had made some pro-vision for the mulatto boy, [Michael] Brown.

Samuel Greenhow<sup>42</sup> another witness sworn on said examination gave the same evidence upon the search of the prisoners room and trunk with McCraw.
and Fifth Streets. DuVal died in Buckingham County in 1842 at the age of 93. W. Asbury Christian, ''Richmond: Her Past and Present'' (Richmond, 1912), 57, 545; Richmond ''Enquirer'', Jan. 13, 1842, and May 13, 1842.

<div style="font-size: 85%;">
<sup>41</sup> The Greenhow to whom DuVal referred may have been the next witness, identified in footnote 42, who is known to have participated in the search of Swinney's room but is not known to have had any claim to the title of Doctor. Conceivably, on the other hand, this Doctor Greenhow may have been the Doctor James G. Greenhow who was living in Richmond in 1815. Blanton, ''Medicine in Virginia in the Nineteenth Century'', 246, 445, citing the Richmond ''Virginia Argus'', Mar. 1, 1815.

<sup>42</sup> Samuel Greenhow issued, as "Principal Agent," a call for the annual meeting in 1809 of the Mutual Assurance Society, the well-known, pioneer Virginia fire insurance company. Richmond ''Enquirer'', Dec. 24, 1808. With men like the Reverend John D. Blair, the Reverend John Buchanan, the Reverend John Holt Rice, and William Munford, Samuel Greenhow was a charter member of the Board of Managers of the Virginia Bible Society, which was organized in Jul., 1813. Christian, ''Richmond'', 87. Greenhow was one of the four witnesses who signed the final codicil to Wythe's will. Minor, "[[Memoir of the Author]]" in Wythe, ''Decisions'', xxxviii-xxxix.
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===Page 558===

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William Price<sup>43</sup> another witness sworn on said examination, gave the same evidence as McCraw and Greenhow on the subject of the search of the prisoner's room, and [substantiated the testimony] of McCraw on the subject of Mr. Wythe’s request to be cut. Mr. McCraw mentioned at that time that he supposed Mr. Wythe wanted to be cut open. Mr. Wythe appeared to be in great agony during his illness, and more particularly when moved.

Nelson Abbott<sup>44</sup> another witness sworn on said examination, deposeth and saith, that on saturday the 24th day of May last, he put an axe, now produced [in court], into a shop in Mr. Wythe’s yard, which he [Wythe] had lent him [Abbott] for a work shop; that on the 27th he went to Hanover and returned on friday the 30th when he discovered the arsenic in its present situation, and a hammer much stained with yellow, which has since been cleaned. The negroes in the shop said the prisoner had beat something they did not know what on the side of the ax with the hammer.

William Claiborne<sup>45</sup> another witness sworn on the said examination deposeth and saith: That he went to Mr. Wythe's the wednesday after his illness [began], who informed him that the Sunday preceding in the morning, he was as well as usual, immediately after breakfast he was taken with a colarimorbus [cholera morbus] and then a violent lax, went forty times that day, and had at least fifteen large evacuations: That on Saturday night he supped [i.e., on Saturday night, May 24, Wythe had supped] on milk and strawberries. Mr. Wythe said all the negroes [of his household] were taken [sick] at the same time. The deponent went into the kitchen and found most of them very ill. He then went to Major DuVal's, and expressed his opinion that the family were poisoned; and suspected the prisoner in consequence of his having been detected [on the previous day, May 27] in the forgery, as the death of Mr. Wythe before the detection could only prevent an alteration in his will which the deponent believed was much in favor of the prisoner. The deponent frequently told the prisoner that he would be well provided for by Mr. Wythe if he behaved well. After the death of the yellow boy [Michael Brown], the deponent was told by some of the negroes that arsenic was found in the outhouses. The deponent took some off the wheelbarrow in the old smoke house, applied fire to it and found from the smell that it was arsenic. The deponent asked Mr. Wythe whether the prisoner break-

<div style="font-size: 85%;">
<sup>43</sup> William Price was another of the witnesses to the final codicil to Wythe's will. Minor, "[[Memoir of the Author]]," in Wythe, ''Decisions'', xxxviii-xxxix.

<sup>44</sup> No information to identify this witness has been discovered.

<sup>45</sup> William Claiborne was the father of W. C. C. Claiborne, Governor of the Territory of Orleans. Richmond ''Enquirer'', Oct. 3, 1809.
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===Page 559===

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fasted with him the morning before he [Wythe] was taken [sick]. At first he did not answer. Afterwards he said he did not know, he [Swinney] was always called to his breakfast, but sometimes took no thing to eat or drink. Mr. Wythe observed he died in peace with all the world, and said he should leave directions for his executor to search the prisoner's trunk. This took place after the death of the boy Michael [on Sunday morning, June <sup>46</sup>], about sunset on the first of June.

[[wikipedia:Edmund Randolph|Edmund Randolph]],<sup>47</sup> being also sworn, deposeth and saith: That on Sunday the first of June about nine o'clock [A.M.], Major DuVal informed the deponent of the death of Michael from poison and [reported] Mr. Wythe as probably dying with the same. Mr. Wythe told the deponent he had supped on strawberries and milk the Saturday before he was taken ill. He wished his will to be altered so as to give to the prisoner's brothers and sisters what he had given him. The deponent made the alteration and then returned home, and afterwards went again to Mr. Wythe and informed him of the death of Michael Brown. The former codicil to the will was then destroyed and the present one made. On Wednesday the fourth of June, the deponent was in-formed by old Lydia [Broadnax] that more marks of poison had been discovered. The deponent went into the shop and saw Abbot's ax. The negro<sup>48</sup>

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<sup>46</sup> George Wythe said in the final codicil to his will, dated Jun. 1, 1806, that he had been told that Michael Brown had died that morning. Minor, "[[Memoir of the Author]]," in Wythe, ''Decisions'', xxxviii-xxxix. An almost contemporary letter also refers to Brown's death on Sunday morning, Jun. 1. William DuVal to Thomas Jefferson, [[Jefferson-DuVal Correspondence#William DuVal to Thomas Jefferson.2C 4 June 1806|Jun. 4, 1806]], Jefferson Papers.

<sup>47</sup> Edmund Randolph, the first Attorney General both of the Commonwealth of Virginia and of the United States, wrote and witnessed the final codicil to Wythe's will. See his testimony here given and Minor, "[[Memoir of the Author]]," in Wythe, ''Decisions'', xxxviii-xxxix. Randolph's career had overlapped Wythe's through the past thirty years—for example, in the Virginia conventions of 1776 and 1788. The first of the two codicils mentioned by Randolph in his testimony evidently devised to George Wythe Swinney's brothers and sisters only what Wythe had formerly bequeathed to Swinney. The second of the two codicils mentioned by Randolph devised to George Wythe Swinney's brothers and sisters everything that Wythe had formerly bequeathed both to Swinney and to Michael Brown. The will and its codicils dated Jan. 19 and Feb. 24, 1806, were proved in the General Court of Virginia on Jun. ii, 1806, by the oaths of Edmund Randolph and Peter Tinsley; and the final codicil, dated Jun. 1, 1806, was proved by the oaths of Samuel McCraw, William Price, and Edmund Randolph. For a printed copy of the will and its three validated codicils see Minor, ''ibid''. An attested manuscript copy is filed under Jun., 1806, in the Jefferson Papers.

<sup>48</sup> This reference to a certain Negro is not as precise as we might wish. Doubtless, however, Randolph talked on Jun. 4 with a Negro man employed in Nelson Abbott's workshop. Possibly this man was one of the same "negroes in the shop" who, according to Abbott's deposition, had told Abbott on May 30 that they did not
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===Page 560===

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was uncertain whether [it was on] the 24th or 26th of May, that the prisoner had caused the appearances [of poisons in the workshop]; but at last settled that it was on Saturday [May 24] when he found the prisoner in the shop, and one of the doors forced, and the prisoner was in the act of pounding some-thing on the axe. The prisoner asked him what it was? the negro replied he believed it was ratsbane. The prisoner then scraped it as clean as he could off the axe and folded it up in a piece of paper, wiping the axe with shavings. It was generally understood and believed that Mr. Wythe had left the bulk of his estate to the prisoner.

Doctor James McClurg,<sup>49</sup> another witness, being sworn, deposeth: That he was present at the opening of the body of Michael Brown. The lower part of the stomach was very much inflamed and had the appearance of the black vomit. The deponent went to visit Mr. Wythe on the day before the boy died and found him with a fever, his tongue very foul, had had no passage for twelve hours, and was free from pain. The appearance of the boy was such as arsenic might have produced; but such as might also have been produced by a great collection of bile. The deponent was also present at the opening the body of Mr. Wythe. The whole of his stomach and intestines had an uncommonly bloody appearance, that if produced by arsenic, in his [McClurg's] opinion, death would have ensued much sooner. Mr. Wythe had been frequently attacked with disordered bowells within three years last past.

Doctor James D. McCaw,<sup>50</sup> being also sworn, deposeth: That he was called ''know'' what substance Swinney had pounded into powder. In slight but not necessarily contradictory contrast, the Negro of whom Randolph testified simply ''believed'' on May 24 that the substance was ratsbane.

<div style="font-size: 85%;">
<sup>49</sup> Under the reorganization of the College of William and Mary instigated by Thomas Jefferson in 1779, James McClurg (1746-1823), Edinburgh-trained physician, had been one of Wythe's four colleagues in the faculty. For three years Dr. McClurg held the newly created chair of the professor of anatomy and medicine. Like Wythe, McClurg went to Philadelphia in 1787 to attend the convention from which emerged the Federal Constitution. McClurg was chosen to be Richmond's mayor in 1797, 1800, and 1803. For a quarter of a century he was one of the community's out-standing physicians. When the Medical Society of Virginia was organized in 1820, he was elected its first president. Although he was too infirm to take an active part in its affairs, he was re-elected in the next year. Blanton, ''Medicine in Virginia in the Nineteenth Century'', 13, 75-76; Christian, ''Richmond'', 545.

<sup>50</sup> James Drew McCaw, M.D., was one of the founders of the Medical Society of Virginia. His father, Dr. James McCaw, founded what might be called a Virginia medical dynasty destined to last five generations. Blanton, ''Medicine in Virginia in the Nineteenth Century'', 116-117, 261, 367. James D. McCaw's offer of 1802 to inoculate the poor of Richmond against smallpox had been accepted by the Common Hall or Council. Richmond ''Examiner'', Jun. 2, 1802. Judging by James D. McCaw's testi-
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===Page 561===

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to attend Mr Wythe on the 26th of May between four and five o'clock. He had been up with a violent puking & purging, and the deponent gave him an opiate, after which he got better, and was better until the discovery of the prisoner's forgery [on Tuesday, May 27], when he became worse and continued to grow worse. The deponent saw the boy [Michael Brown] on the day before his death, when he had a fever and complained of great pain. The deponent saw him opened after his death, and thinks that his death might have been occasioned by a great accumulation of bile.

Doctor William Foushee,<sup>51</sup> being sworn, deposeth: That he attended the opening of Mr Wythe's body in the presence of many other physicians.<sup>52</sup> The stomach was very much inflamed, and appeared as if a new inflamation was coming on. There was very little bile in the liver. The same appearance that his stomach and intestines exhibited might have been produced by arsenic, or any other acrid matter.

James McClurg, William Foushee, James D. McCaw, William Rose, Samuel McCraw, Fleming Russell, William Claiborne, William Price (Register) Nelson Abbott and Taylor Williams,<sup>53</sup> here in Court acknowledge themselves

<div style="font-size: 85%;">
mony, he seems to have been more nearly the family physician to the Wythe household than any of the other physicians whose names occur in records concerning the Chancellor's last illness. To be compared with the recorded testimony of Dr. McClurg and that of Dr. McCaw concerning the autopsy on the body of Michael
Brown is DuVal's letter to Jefferson: "As a Magistrate I requested four eminent Physicians to open the body of the Boy. They did so; from the inflamation on the Stomach & Bowels they said that it was the kind of Inflamation produced by Poison." William DuVal to Thomas Jefferson, [[Jefferson-DuVal Correspondence#William DuVal to Thomas Jefferson.2C 4 June 1806|Jun. 4, 1806]], Jefferson Papers.

<sup>51</sup> William Foushee, M.D., had been born in the Northern Neck in 1749. Like McClurg, he studied medicine in Edinburgh. He served as Richmond's first mayor, 1782-1783, as the town's postmaster for several years, and as the president of its Common Hall or town council for several years. He also served in both the legislative and executive branches of the state government. For many years he presided over the James River Company's internal navigation improvement projects. The General Assembly named him among the charter trustees of the Richmond Academy in 1802. Twenty years later the Medical Society of Virginia elected him its second president. When he died in 1824, he was almost seventy-five years old and was said to have been Richmond's oldest inhabitant. His death evoked an unusually detailed obituary. Christian, ''Richmond'', 57-58, 545; Blanton, ''Medicine in Virginia in the Nineteenth Century'', 75-76; Richmond ''Enquirer'', Aug. 24, 1824.

<sup>52</sup> DuVal reported to Jefferson that William Foushee, James D. McCaw, James McClurg, and two other physicians performed the autopsy on Wythe's body on the day of his death. DuVal stated simply that they found "considerable inflamation in the Stomach," but he added in the same context that it was "strongly suspected" that Wythe and Michael Brown had been poisoned with yellow arsenic by George Wythe Swinney. William DuVal to Thomas Jefferson, [[Jefferson-DuVal Correspondence#William DuVal to Thomas Jefferson.2C 8 June 1806|Jun. 8, 1806]], Jefferson Papers.

<sup>53</sup> It may be highly significant that four of the fourteen witnesses were not
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severally indebted to his Excellency William H. Cabell governor or chief magistrate of the Commonwealth of Virginia, in the sum of one hundred pounds each, of their respective goods and chattels, lands and tenements, to be levied, and to the said governor and his successors, for the use of the said Common- wealth rendered: Yet upon this Condition, that if the said James McClurg, William Foushee, James D. McCaw, William Rose, Samuel McCraw, Fleming Russell, William Claiborne, William Price (Register) Nelson Abbott and Taylor Williams, shall severally make their personal appearance before the Judges of the District Court directed by law to be holden at the Capitol in this City on the first day of the next term of that Court, to give evidence on behalf of the Commonwealth against George W. Swinney, who stands accused of murder, and shall not depart thence without the leave of the said Court, this recognizance is to be void.

(Minutes signed) E: Carrington, Mayor

The depositions of the sixteen witnesses in the two proceedings of June 2 and 23 make Swinney's motives for murder clearer than other contemporary records. Obviously, that troubled knave had tried to solve more than one of his problems at once. By a single desperate deed he might forestall discovery of his forgeries, prevent any resultant reduction or cancellation of the legacy he would receive from Wythe, and claim his inheritance prematurely.

But the second Hustings Court record does not enable us to determine with finality precisely when and how Swinney committed his acts of murder. None of the testimony links arsenic with the coffee served in Wythe's cottage, according to the traditional story of the poisonings, at breakfast on Sunday, May 25. To contrary import are the depositions of Claiborne, McCraw, and Randolph. Their assertions under oath indicate that Swinney had mixed some arsenic with strawberries and that Wythe ate strawberries for supper on Saturday, May 24. Wythe's breakfast coffee may have become the supposed vehicle for the poison on the invalid ground of reasoning of the ''post hoc, propter hoc'' type. Actually, so far as we can tell,

placed under bond to be available to serve as witnesses in the forthcoming trial of Swinney on the charge of murder before the District Court. The four who were exempted from such an obligation were William DuVal, Samuel Greenhow, Edmund Randolph, and Tarlton Webb. While in some respects their testimony before the Hustings Court merely confirmed that of other witnesses, in these respects, and more especially in reference to other observations concerning which others did not testify, the evidence submitted by these four could not be omitted without weakening the case against Swinney.

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he may have consumed poisoned foods at both meals. A fatal dose of arsenic usually produces acute symptoms within about an hour after it enters the human stomach, and death usually follows within one to three days. Wythe's case was not a typical one in the latter respect, and we have scant cause to assume that it was a normal one in the former respect. Fatal dosages of arsenic have been known in rare instances to cause no symptom for as many as twelve hours, particularly if the poison was ad- ministered in solid rather than liquid form and if a full meal was consumed with it; and death has been known to result as much as two weeks after the appearance of symptoms, as it did in Wythe's case. An inexperienced, experimenting Swinney may have underestimated on May 24 the amount of arsenic required to accomplish his premeditated purpose. He may have awaked the next morning to find that his attempt of the previous afternoon or evening had failed. He may then have added a second and larger quantity of arsenic to the breakfast menu. Neither this nor any alternative possibility can be proved conclusively from the available evidence.

More important than questions about details of that sort is the official record's revelation of the limited, inconclusive nature of the physicians' findings in the two autopsies. They did not exhaust every means known to the medical scientists and chemists of their generation to determine whether or not the deaths of Michael Brown and George Wythe had been unnatural ones. One authoritative treatise, for example, published in 1832 but embodying comparatively little that had been learned since 1806, devoted fully a hundred pages to its discussion of arsenic poisoning, forty of them to various definitive tests by which the presence of arsenic can be determined. Its author commented on the ease with which that almost tasteless and odorless chemical element could be procured in various forms and compounds and could be administered surreptitiously. Then he added,

"It is fortunate, therefore, that there are few substances in nature, and perhaps hardly any other poison, whose presence can be detected in such minute quantities and with so great certainty."<sup>54</sup> The inflamed tissues observed by the Richmond doctors were ambiguous. The same kind of examination today would do little more, if any, to pin down positively the cause of such deaths, for gastrointestinal inflammations of quite similar

<div style="font-size: 85%;">
<sup>54</sup> Robert Christison, ''A Treatise on Poisons, in Relation to Medical Jurisprudence, Physiology, and the Practice of Physic'' (2d ed., Edinburgh, 1832), 223. This volume's treatment of arsenic poisoning covers pp. 223-324.
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===Page 564===

<blockquote>
appearance can result from any of several distinct causes, both natural and unnatural. The Richmond physicians' post-mortem inspections should not have ended short of a few simple laboratory procedures. Standard analyses of that kind would almost certainly have proved beyond question whether or not arsenic had ended the lives of the youthful Michael Brown and the aged George Wythe.

The above testimony in both of the suits of the Commonwealth ''v.'' Swinney confirms an undisputed conclusion reached by all who have ever studied the matter: Wythe himself became fully convinced on his death- bed that Swinney was a forger and a murderer. Yet, in fact, that young man escaped legal punishment for both offenses. His road to freedom was, however, a tortuous one. Sometime during the summer of 1806 the charges against him were referred to a grand jury. It returned true bills. Thus it became the third judicial body to render a verdict of guilt against Swinney on each accusation, for the same conclusion had already been reached on each count by one or more of Richmond's magistrates and by the Hustings Court. Specifically, the grand jury cleared the way for the trial of Swinney by the District Court on each of six distinct indictments—one for the murder of Wythe, another for that of Michael Brown, and four for forgeries of Wythe's name on as many checks.<sup>55</sup>

On September 2, 1806, the District Court proceeded to tackle what the [[Respectfully Dedicated to the Legislature of Virginia|Richmond ''Enquirer'']] termed "the celebrated trial of George W. Sweeney, on the charge of administering arsenic to his great Uncle the venerable George Wythe." Judges Joseph Prentis and John Tyler, Sr., whose son of the same name was destined to become the tenth President of the United States, were the two members of Virginia's General Court assigned to preside over this session in the Richmond district.<sup>56</sup> Presumably, the two judges' judicial robes hid the mourning bands of crape that they and other members of the General Court had resolved to wear on their left arms for three months in tribute to the jurist Virginia had lost.<sup>57</sup> At the

<div style="font-size: 85%;">
<sup>55</sup> There is no record of any decision in regard to the other two checks that William Dandridge and Peter Tinsley had testified were, in the opinions of Dandridge and Wythe, also forged.

<sup>56</sup> [[Richmond Enquirer, 9 September 1806|Richmond ''Enquirer'', Sept. 9, 1806]].

<sup>57</sup> Ibid., Jun. 24, 1806; [[Virginia Argus, 17 June 1806|Richmond ''Virginia Argus'', Jun. 17, 1806]]; Richmond ''Impartial Observer'', Jun. 21, 1806. The Governor and Council had resolved on Jun. 14, "in honour of the deceased," to wear black bands similarly for one month as an "outward Sign of respect to his memory." Journals of the Council of Virginia (MSS. in the Virginia State Library), XXVII, 448. When the Virginia General Assembly convened in Dec., 1806, its members also resolved unanimously to "wear a badge of
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===Page 565===

<blockquote>
prosecuting attorney's table sat Philip Norborne Nicholas,<sup>58</sup> the popular young Attorney General of Virginia and successful leader in recent years of the Jeffersonian Republican party in the state. Nicholas had known Wythe while the Chancellor had still resided in Williamsburg. More recently they had been associated in various legal and political activities. Presumably, Nicholas had every reason to prosecute the case with all the vigor at his command.

But the shocked, incensed atmosphere of June had doubtless grown calmer by September, and impressive talents had been aligned on Swinney's side as counsel for the defense.<sup>59</sup> One of these lawyers was the same Edmund Randolph who had written the codicil disinheriting Swinney, the same Randolph who had given damaging testimony against him in the Hustings Court. The other lawyer at Swinney's side was the same William Wirt who had expressed a hope that no attorney would be found to defend him, so that he would be left to suffer the fate he deserved.

Wirt had been contemplating at the beginning of the summer a desire to move from Norfolk to Richmond, for his wife found Norfolk's summers unbearable. He had concluded at that distance within a month after Wythe's death that Swinney could conceivably be innocent of murder. Judge William Nelson of the General Court had told him that "there was a difference of opinion" among Richmond doctors as to the cause of the Chancellor's death and that "the eminent McClurg, amongst others, had pronounced that his death was caused simply by bile and not by poison." Then a brother of Swinney's distressed mother had traveled eastward to implore Wirt to serve as an attorney for the defense.<sup>60</sup>

Although Wirt had already decided before that visit that "it would not be so horrible a thing to defend" Swinney "as, at first, I had thought it," the plea made by his uncle posed a problem of conscience and of reputation. By letter Wirt asked his wife, "What shall I do?" And then he proceeded to influence her decision. "If there is no moral or professional impropriety in it, I know that it might be done in a manner which would avert the displeasure of every one from me, and give me a splendid ''debut'' in the metropolis. Judge Nelson says I ought not to hesitate a moment

<div style="font-size: 85%;">
mourning" for one month. Washington, D.C., [[National Intelligencer, 15 December 1806|''National Intelligencer, and Washington Advertiser'', Dec. 15, 1806]].

<sup>59</sup> ''Ibid.''

<sup>60</sup> William Wirt to his wife, Jul. 13, 1806, Kennedy, ''William Wirt'', I, 152-153.
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===Page 566===

<blockquote>
to do it; that no one can justly censure me for it; and, for his own part, he thinks it highly proper that the young man should be defended. Being himself a relation of Judge Wythe's, and having the most delicate sense of propriety, I am disposed to confide very much in his opinion."'

The issue was settled within ten days. Nelson reiterated his opinion as to "the perfect propriety of the step." Mrs. Wirt evidently protested that her husband need not fear that she would suffer reproach. "I shall defend young Swinney under your counsel," he wrote her. "My conscience is perfectly clear, from the accounts I hear of the conflicting evidence."<sup>62</sup>

Records of the District Court, in which Randolph and Wirt undertook to save the life of George Wythe Swinney, are not extant; apparently they did not survive the fire that accompanied the Confederate evacuation of Richmond in April, 1865. Only from other sources can we learn whether or not the defense attorneys achieved their goal. The Richmond ''Enquirer'' reported succinctly the results of what was probably a day replete with courtroom drama and legal technicalities. "After an able and eloquent discussion" by counsel for the Commonwealth and for Swinney, read that newspaper's summary, "the jury retired, and in a few minutes, brought in the verdict of ''not guilty''. A similar indictment against him [Swinney] for the poisoning of Michael, a mulatto boy (who lived with Mr. Wythe) was quashed without a trial."<sup>63</sup>

There could have been no doubt whatsoever that Virginia's laws of 1806 defined murder by poisoning, if it were committed by a free person, to be murder of the first degree, punishable by death.<sup>64</sup>Some other ex- planation of the jury's astonishing verdict must be sought. Editor Thomas Ritchie offered his readers one hint why Randolph and Wirt had been able to win a quick decision in favor of their despised client. Some of the "strongest testimony" that had been heard by the Hustings Court and by the grand jury, Ritchie remarked, "was kept back from the petit jury" in the District Court. "The reason is, that it was gleaned from the evidence of negroes, which is not permitted by our laws to go against a white

<div style="font-size: 85%;">
<sup>61</sup> ''Ibid''. Nelson's distant kinship to Wythe was evidently through the second Mrs. Wythe, who had been a Taliaferro. See a copy of the will of Rebecca Cocke Taliaferro of "Powhatan," James City County, Nov. 12, 1810, in the possession of Colonial Williamsburg.

<sup>62</sup> William Wirt to his wife, Jul. 23, 1806, Kennedy, ''[[Life of William Wirt#Page 154|William Wirt]]'', 1, 154.

<sup>63</sup> [[Richmond Enquirer, 9 September 1806|Richmond ''Enquirer'', Sept. 9, 1806]].

<sup>64</sup> the enactments of 1796 and 1803, Shepherd, ''Statutes'', II, 5-14 and 405-406, respectively.
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===Page 567===

<blockquote>
man."<sup>65</sup> Actually, the reason assigned by the editor would have been more nearly true if he had phrased it more carefully. As far back as 1732 and as recently as 1801 the statutes of Virginia had stipulated that a Negro or a mulatto could be qualified as a witness only in a lawsuit brought against a Negro or a mulatto or by the commonwealth for one.<sup>66</sup> That is why Lydia Broadnax had not told the Hustings Court in June whatever she knew about the involvement of George Wythe Swinney in the deaths of Michael Brown and George Wythe.

The legal disability of Negroes to testify against Swinney had loomed large in people's thinking about the prospective trials of that ingrate for murder ever since Michael had died. Even before William Wirt learned with certainty that Wythe had also been a victim, Wirt had realized that one law might prevent the fulfillment of justice under another. "The chain of circumstances fix the guilt of Sweney beyond reach of doubt," Wirt had then been willing to assert, "but some of those circumstances, material to his conviction in a court of law, depend, it seems, on black persons, & so he will escape for the poison[ings]. he is under prosecution for the forgery & of that must be convicted."<sup>67</sup>

One logical question is answered neither by Ritchie's explanation nor by Wirt's prophecy. Why was any of the evidence that had been admissible in the three previous proceedings—evidence that had resulted in three verdicts of guilt—not presented in the District Court? No record answers that question. Possibly the District Court refused to hear some of the testimony that had been given before the Hustings Court. Evidence given by the white witnesses in June concerning what Negroes had ob-

<div style="font-size: 85%;">
<sup>65</sup> [[Richmond Enquirer, 9 September 1806|Richmond ''Enquirer'', Sept. 9, 1806]].

<sup>66</sup> The exact words of the law of 1801 were: "Any negro or mulatto, bond or free, shall be a good witness in pleas of the commonwealth for or against negroes or mulattoes, bond or free, or in civil pleas where free negroes or mulattoes shall alone be parties." Shepherd, ''Statutes'', II, 300. The statute of 1785 was to the same effect, although its provisions were couched in negative terms and omitted the words "bond" and "free" in each of the five instances of their use in the enactment of 1806. Hening, ''Statutes'', XII (Richmond, 1823), 182-183. Digests of the 1732 and 1748 statutes and of related legislation can be found conveniently in June Purcell Guild, ''Black Laws of Virginia: A Summary of the Legislative Acts of Virginia concerning Negroes from Earliest Times to the Present'' (Richmond, 1936), 154-155.

<sup>67</sup> William Wirt to James Monroe, Jun. 10, 1806, Monroe Papers, vol. XI, no. 1373. Internal evidence in this letter indicates that for the facts he stated Wirt was indebted to a communication written on Jun. 5, 1806, by his brother-in-law, Governor Cabell, and the prophecies Wirt voiced may also have reflected the Governor's thinking as of that date.
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===Page 568===

<blockquote>
served and had told them may have been ruled inadmissible by Judges Prentis and Tyler because of its Negro source or its hearsay nature. On the other hand, we have no proof acceptable by the ordinary standards of historical criticism that Swinney was acquitted because of the repression of the testimony Lydia Broadnax or other Negroes might have given but for Virginia's laws. Ritchie's allegation about the withholding of testimony "gleaned from the evidence of negroes" remains unsubstantiated, and Wirt's prophecy can be considered to have been merely a recognition of the flimsiness of the circumstantial evidence others would be able to give.

The simple fact remains that no known witness was able to assert in any of the four proceedings that he had actually seen Swinney put poison into food eaten by Michael Brown or by George Wythe. Moreover, no physician is known to have been willing to swear that either of the two autopsies proved that death had been caused by a poison. In other words, the evidence against Swinney was purely circumstantial.

Thomas Ritchie himself had not been hysterical in his attitude toward Swinney during the first days of resentment following the news of the Chancellor's death. The editor had remembered, sanely and circum- spectly, that the accusations against Swinney had not then been proved and that, until and unless they were, he should be presumed innocent. "Every situation in life has its rights and its duties," Ritchie had cautioned his readers. "Let us therefore respect the rights of the accused."<sup>68</sup> If Swinney's two lawyers took advantage in the District Court of every legal technicality to protect their client's rights, Ritchie should have been among the last to imply any criticism of them, for they had placed themselves under obligation to do so.

In any case, George Wythe was dead. Another man's life was at stake. It is the very genius of the legal system Wythe had received from his forefathers and had himself helped to develop and to refine that this second life should not be taken lightly. Since we do not know in detail what transpired in that Richmond courtroom on September 2, 1806, we are left in the position of being forced to accept at face value the jury's final decision, which was that Swinney had not been proved beyond reasonable doubt to have murdered George Wythe and that he was therefore ''not guilty''. Similarly, we must accept the opinion of Attorney General Nicholas that it would have been useless to try to prove beyond reasonable doubt that Swinney had murdered Michael Brown.

<div style="font-size: 85%;">
<sup>68</sup> [[Richmond Enquirer, 10 June 1806|Richmond ''Enquirer'', Jun. 10, 1806]].
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===Page 569===

<blockquote>
Nevertheless, we can record the fact that those jurymen are the only persons known to have expressed at any time in or since 1806 an opinion that Swinney was not a murderer. William Wirt had concluded that Swinney could conceivably be innocent of the charge, but Wirt left no record now extant that he actually believed Swinney to be the victim of an unjust accusation. The common impression throughout the summer of 1806 was that Swinney had committed two premeditated murders. That opinion has remained unchanged to this day.

George Wythe Swinney had escaped death by hanging. It remained to be seen whether or not he would become permanently branded a convicted forger. Within another twenty-four hours he received a tentative answer to this second question. On Thursday, September 3, 1806, he was adjudged guilty on two of the forgery indictments.<sup>69</sup> But these verdicts were not allowed to stand unquestioned. Within ten days William Wirt pleaded successfully, "in an eloquent and ingenious speech" addressed to Judges Prentis and Tyler of the District Court, for arrest of judgment. Wirt's objections were considered acceptable by the two judges and were referred to the next session of the General Court for approval or rejection.<sup>70</sup> Wirt had changed his mind since his assertion in June that Swinney would doubtless be convicted of the forgery charges.

Someone else had come earlier than Wirt to the conclusion that the laws of Virginia would not justify inflicting punishment on Swinney for having obtained certain things of value at the state's bank by using forged signatures. Indeed, former Governor Page had decided in June that what Swinney had done at the Bank of Virginia was a crime only against God, not against any law of the Commonwealth of Virginia. "As to this young Man's Forgeries," Page had commented in highly moralistic vein but with a practical twist, "when religion is out of the way, I can see nothing in our law, that could restrain him, or any one else from a free exercise of that lucrative Employment. But for a sense of religion, I myself could not have done a better act for the Benefit of my Wife & Children, than to have . . . died . .. consoled with the pleasing reflection that I had handsomely provided for my Family, in a way permitted, nay chalked out by our Laws." <sup>71</sup>

<div style="font-size: 85%;">
<sup>69</sup> [[Richmond Enquirer, 9 September 1806|''Ibid.'', Sept. 9, 1806]].

<sup>70</sup> Richmond ''Virginia Gazette, & General Advertiser'', Sept. 13, 1806.

<sup>71</sup> Page's letter continued: "I could, if under no religious impressions, tell my Wife & Children, that no one would think the worse of them for what I had done; and indeed that they would always be respected in proportion to their riches, and
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===Page 570===

<blockquote>
Could it be true, as Page thought he perceived, that Swinney had violated no law by his use of counterfeited signatures of George Wythe? Almost entirely so, declared the General Court in two quite technical opinions on November 17, 1806, with Judges [[wikipedia:Francis T. Brooke|Francis T. Brooke]], [[wikipedia:Paul Carrington (judge)|Paul Carrington, Jr.]], [[wikipedia:Hugh Holmes (Virginia politician)|Hugh Holmes]], [[wikipedia:Archibald Stuart|Archibald Stuart]], [[wikipedia:John Tyler, Sr.|John Tyler, Sr.]], and [[wikipedia:Robert White (judge)| Robert White]] on the bench. They learned that the District Court's jury had convicted Swinney on an indictment for having obtained from the Bank of Virginia on May 27, 1806, a ''banknote'' for $100. In order to do so, he had presented to William Dandridge both a counterfeited letter and a forged check purporting to have been written and signed by Wythe. But the judges also heard that the arrest of judgment had been awarded on the ground that the forgeries of which Swinney had been accused did not actually constitute offences against a Virginia statute enacted in 1789, which was the only law the forgery indictments against him had contrived to mention.<sup>72</sup>

For one thing, William Wirt had argued that the 1789 law "was intended to punish a pre-existing evil" and could not possibly have reference to any bank, since no bank was established in Virginia until "many years" later. In the second place, Wirt contended that the law's phraseology, as well as its date, precluded any possibility of its being applied to the Bank of Virginia. The statute made illegal any deceitful deed, bill of sale, or other such document that would result in the robbery of one or more "private individuals." The bank could not properly be considered a

<div style="font-size: 85%;">
that both I and they would have been despised had I left them poor—that therefore the riches I had acquired for them would secure them respect in this World, and that as to any other, they need not trouble themselves about it—that they ought to enjoy their hearts desire in all things, and say 'let us eat & drink for tomorrow we die.' . . . But believing as I do in a divine revelation, I had rather perish with my Wife & Children through absolute Want, than that any one of us, should do one unjust or dishonest Act." John Page to St. George Tucker, Jun. 29, 1806, Tucker-Coleman Papers.

<sup>72</sup> The law that Swinney was alleged by the indictment to have broken had been adopted on Nov. 18, 1789. It was entitled "An act against those who counterfeit letters or privy tokens, to receive money or goods in other men's names." It provided that "if any person or persons, shall falsely and deceitfully obtain or get into his or their hands or possession, any money, goods or chattels of any other person or persons, by colour and means of any such false token or counterfeit letter, made in any other man's name as is aforesaid; every such person and persons so offending, and being thereof lawfully convicted in the court of the district, in which such offence shall have been committed," shall be subject to a maximum term of one year in prison and to "setting upon the pillory." Hening, ''Statutes'', XIII (Philadelphia, 1823), 22.
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===Page 571===

<blockquote>
"person or persons" within the meaning of the law. It was "a body corporate, an ideal body," and "no more a person, than the commonwealth of Virginia." Anything, therefore, that Swinney had obtained from the bank could not have been procured in violation of a law that made punishable the getting by false means of "any money, goods or chattels of any other person or persons." And in the third place, Wirt argued, what Swinney had received was not part of "the money or goods of the said George Wythe, because having been delivered under a check not drawn by him, the bank hath no right to charge it to his account."

In connection with the ''banknote'' in question under the first indictment, the General Court found Wirt's claims convincing enough. Its judges concluded that they should grant a permanent arrest of judgment. Thus they reversed the petit jury's verdict that Swinney was guilty; thus they pronounced him innocent of the crime alleged to have occurred on May 27. While Wythe lay on his deathbed that Tuesday, Swinney had perpetrated a forgery, but it was not an unlawful forgery.

The other indictment under which the District Court had found Swinney guilty of a violation of the same statute was quite similar to the first. The second differed in only one significant particular. It involved $50 that Swinney had obtained from the bank by the same means on April 11, 1806, in the form of ''currency''. Wirt's appeal in the District Court for an arrest of judgment had been won on the same three grounds, and they were pleaded anew as sufficient cause for making the temporary ban against sentence upon Swinney a permanent one.

In this instance the General Court did not agree. It refused to accept Wirt's argument that the "''money current''" Swinney had gotten at the bank in April could not properly be charged against the account of Wythe, by virtue of the forged check, and was therefore not Wythe's money until Swinney had acquired possession of it falsely. Evidently, Virginia's supreme tribunal for criminal law decided that neither of Wirt's first two points was valid in respect to either indictment and that the validity of Wirt's third contention depended entirely upon the natures of the two kinds of property the forger had received. In other words, the six judges' two decisions meant, essentially, that the promissory ''banknote'' Swinney obtained on May 27 had not been Wythe's "money, goods or chattels" but that the ''currency'' involved in the similar transaction of April 11 had been. If this distinction seems subtle, thin, and flimsy, it appears to have been not more so than whatever reasoning persuaded the judges to ignore
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===Page 572===

<blockquote>
Wirt's assertions that the 1789 law was not at all pertinent to the later means of "getting something for nothing" upon which an unconsciously clever forger had stumbled. The chagrined John Page, who had been Governor of Virginia when the state bank was established, had believed on June, 1806, that none of Swinney's forgeries was illegal. Page had been much disconcerted by his discovery that the commonwealth had not foreseen and had not prohibited such misuses of another's signature. The General Court, on the other hand, professed to believe that one of Swinney's forgeries had inadvertently violated a law more than fifteen years old and obviously designed to curb other frauds wrought by means if forgery. Consequently, the court decreed that punishment should be imposed upon Swinney under the second indictment by the District Court.<sup>73</sup>

Nevertheless, according to a report derived from official records that are not now extant, the District Court did not execute its sentence, which was that Swinney should spend one hour in the pillory at Richmond's public market and six months in prison. Contrary to the General Court's decree and for reasons inexplicable today, the District Court is said to have granted Swinney a second trial on the indictment the higher court had upheld, and then the attorney for the commonwealth declined to prosecute the case.<sup>74</sup>

Thus freed, technically at least, of all charges against him, but with a reputation he would never be able to live down locally, the "unfortunate" Swinney "then sought refuge in the West, where his career was brought to a premature and miserable close."<sup>75</sup> So reads one account, written about the middle of the nineteenth century, of the end of the life of

<div style="font-size: 85%;">
<sup>73</sup> William Brockenbrough and Hugh Holmes, ''[[Commonwealth against George Wythe Swinney|Collection of Cases Decided by the General Court of Virginia, Chiefly Relating to the Penal Laws of the Commonwealth, Commencing in the Year 1789 and Ending in 1814, Copied from the Records of Said Court, with Explanatory Notes]]'' (Philadelphia, 1815), 146-151.

<sup>74</sup> Minor, "[[Memoir of the Author]]," in Wythe, ''Decisions'', xxviii. In a footnote on that page Minor asserted: "The records of these proceedings [in the District Court after the return to it of the decree of the General Court in the last of tie suits of the Commonwealth v. Swinney] have been consulted in the office of tie Superior Court of Law for Henrico County." Minor wrote those words in or before 1852. Presumably, reorganizations of Virginia's judicial system between 1806 and 1852 account for the fact that records of the District Court in Richmond for its Apr., 1807, term (the first session it was scheduled to have after the Nov., 186, term of the General Court) had come by 1852 into the custody of the Superior Court of Law for Henrico County. The fire in Richmond during April 2-3, 1865, apparently explains their disappearance.

<sup>75</sup> ''Ibid''.
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===Page 573===

<blockquote>
the young man to whom George Wythe had been "kinder than a Father."<sup>76</sup> According to the memory of another Richmonder fifty years after George Wythe Swinney had been a defendant in the capital's courtrooms, Swinney went to Tennessee, stole a horse, served a term in a penitentiary, and was "then lost sight of."<sup>77</sup> The forgeries that preceded and led directly to the death of George Wythe may not have been plainly and provably crimes against the Commonwealth of Virginia. But they served one useful purpose, for they pointed out a glaring loophole in Virginia's laws. The state acted promptly to plug that gap. On the last day of the same year the General Assembly adopted and put into immediate effect "An ACT to punish certain thefts and forgeries." That law clearly defined as a crime every deed by which any person should "fraudulently obtain, or aid or assist in obtaining from the Bank of Virginia, or any of its offices of discount and deposit, any bank or post note, or money, by means of any forged or counterfeit check or order whatsoever, knowing the same to be forged or counterfeited." Violators of the new statute, when they were properly found guilty in court, were to be imprisoned for "not less than two, nor more than ten years."<sup>78</sup>

In the final analysis, we may guess, George Wythe Swinney escaped death on the gallows because of three considerations. One of these seems to be the forgiveness Wythe himself gave him. That could not alter one whit Swinney's legal liability to pay the penalty for murder, but it may have influenced, both consciously and unconsciously, the men who prosecuted and defended Swinney, those who testified, the judges who decided what evidence was admissible, and the twelve "good men and true" who retired to a jury room in the September trial. A second determining factor probably was the failure of the physicians to perform complete autopsies and thus to be prepared to assert unequivocally on the witness stand that, in their professional judgments, the deaths of Michael Brown and George Wythe had been caused by arsenic poisoning. Such testimony would have become, quite possibly, the "clincher" that would have strengthened the

<div style="font-size: 85%;">
<sup>76</sup> William DuVal to Thomas Jefferson, [[Jefferson-DuVal Correspondence#William DuVal to Thomas Jefferson.2C 4 June 1806|Jun. 4, 1806]], Jefferson Papers.

<sup>77</sup> Dove, "[[Memoranda Concerning the Death of Chancellor Wythe|Memoranda]]." Although Minor accepted Dr. Dove's recollections they are so untrustworthy in matters that can be checked that the unsubstantiated statements concerning Swinney's life after he escaped the clutches of the law in Richmond made by both Dove and Minor must be considered traditionary rather than supported by valid evidence.

<sup>78</sup> Shepherd, ''Statutes'', III, 289.
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===Page 574===

<blockquote>
web of circumstantial evidence against Swinney enough to put a knotted rope around his neck. A third presumed factor was inherent in Anglo-American jurisprudence. The doctors and other Virginians who participated as witnesses, attorneys, jurymen, and judges in Swinney's final trial for murder were honorable men. They cleared him of the accusation because, evidently, they thought it important to save the life of a young man who ''might'' be innocent, although he certainly seemed not to be. George Wythe himself would doubtless have had the same respect for the legal principle of a reasonable doubt.

Did Virginia justice suffer a miscarriage in 1806? For want of complete records, we cannot properly lift our second-guessing voices to cry that it went wrong. But we can agree heartily with the opinion held by Wythe himself and never relinquished by most of his sympathetic but straightforward contemporaries—the belief that, by every standard other than the technical ones of the law, Swinney had assuredly done serious wrongs. Like Wythe's survivors, we can only take comfort in the fact that Virginia justice may have avoided adding another wrong to Swinney's and in the fact that his chief victim, Chancellor Wythe himself, the "Virginia Socrates" and the "American Aristides," had achieved on his deathbed, by revoking his generous bequests to Swinney, one final act of obvious equity.
</blockquote>

==See also==

*[[Commonwealth against George Wythe Swinney]]
*[[Honest Lawyer]]
*[[Hustings Court Minutes]]
*[[Hustings Court Order Book]]
*[[Jefferson-DuVal Correspondence]]
*[[Life of William Wirt]]
*[[Memoir of the Author]]
*[[Memoranda Concerning the Death of Chancellor Wythe]]
*[[Murder of George Wythe]]
*[[National Intelligencer, 15 December 1806]]
*[[Richmond Enquirer, 8 July 1806]]
*[[Richmond Enquirer, 10 June 1806]]
*[[Richmond Enquirer, 9 September 1806]]
*[[Virginia Argus, 10 June 1806]]
*[[Virginia Argus, 17 June 1806]]
*[[Virginia Argus, 25 June 1806]]
*[[Virginia, June General Court, 1806]]

==References==
<references/>

==External links==

*[https://oieahc.wm.edu/ Omohundro Institute of Early American History and Culture]

[[Category:Biographies (Articles)]]
[[Category:Murder of George Wythe]]

Examinations of George Wythe Swinney for Forgery and Murder

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{{DISPLAYTITLE:"Examinations of George Wythe Swinney for Forgery and Murder: A Documentary Essay"}}
[[File:WilliamAndMaryQuarterlyOctober1955Wythe.jpg|thumb|right|400px|Engraved portrait [[George Wythe]] by [[Depictions of Wythe|J.B. Longacre]], from the ''William and Mary Quarterly,'' 3rd ser., 12, no. 4 (October 1955), 512.]]

Wythe scholar W. Edwin Hemphill contributed to a special issue of ''The William and Mary Quarterly'', dedicated to the murder of [[George Wythe]], in October, 1955. The issue was published in accordance with the Marshall-Wythe celebration at the [http://law.wm.edu/ College of William & Mary Law School] on September 25, 1954, for the bicentennial of [[John Marshall|John Marshall's]] birth. The journal pairs Hemphill's essay on "[[Media:HemphillExaminationsOfGeorgeWytheSwinneyOctober1955.pdf|Examinations of George Wythe Swinney for Forgery and Murder]],"<ref>W. Edwin Hemphill, "Examinations of George Wythe Swinney for Forgery and Murder: A Documentary Essay," ''William and Mary Quarterly'' 3rd ser., 12, no. 4 (October 1955), 543-574.</ref> with another by [[wikipedia:Julian P. Boyd|Julian P. Boyd]], "[[Murder of George Wythe]]."<ref>Julian P. Boyd, "[[Media:BoydMurderOfGeorgeWytheOctober1955.pdf|The Murder of George Wythe]]," ''William and Mary Quarterly'' 3rd ser., 12, no. 4 (October 1955), 513-542.</ref> Hemphill had rediscovered witness testimony given for [[Death of George Wythe#Sweeney's Trial|Sweeney's murder trial]] in 1806, and both authors made use of this new information.

Hemphill and Boyd's work was published as a pamphlet reprint the same year, under the title: [https://catalog.swem.wm.edu/law/Record/343766 ''The Murder of George Wythe: Two Essays''] (Williamsburg, VA: [https://oieahc.wm.edu/ Institute of Early American History and Culture,] 1955).

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==Article text, October 1955==
===Page 543===

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'''Examinations of George Wythe Swinney<br />for Forgery and Murder: A Documentary Essay'''<br />W. Edwin Hemphill*
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“I SHUDDER when I think of it." Thus wrote [[wikipedia:John Page (Virginia politician)|John Page]] three weeks after the death of [[George Wythe]] in Richmond on June 8, 1806.<sup>1</sup> Less than a year and a half had elapsed since a "numerous concourse" of Jeffersonian Republicans had gathered at the Washington Tavern in the capital on March 4, 1805, to celebrate the second inauguration of [[Thomas Jefferson]] as the President of the United States. On the joyous occasion of the party's victory banquet Governor Page had asked Judge Wythe to retire and had then proposed a volunteer toast to "George Wythe, distinguished alike for his wisdom and integrity as a magistrate, and his zeal and disinterestedness as a patriot." The tavern's hall had resounded with nine cheers—as many as were given in response to any prearranged or spontaneous toast, even that to the President himself.<sup>2</sup> Nine months later Page had retired from the governorship.

As he sat at his writing desk late in June, 1806, amid the peace and security of "Rosewell," his magnificent home in Gloucester County, John Page reflected upon the saddening, disheartening news he had heard during a recent trip to Richmond. [[William DuVal]], George Wythe's nearest neighbor, had told Page how their mutual friend had suffered and had died—and how very suspect certain circumstances preceding that death seemed. But nothing had yet been proved. So the circumspect Page scribbled to another friend an outburst that was more a sermon than a digest of the evidence. "I know only enough" about the "horrid tale," he remarked in his letter to St. George Tucker, one of Wythe's students and the judge who had succeeded Wythe in the chair of law in the College

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* Mr. Hemphill is Managing Editor of ''Virginia Cavalcade'' and a member of the staff of the Virginia State Library. These depositions were discovered by Mr. Hemphill and are now printed for the first time in this issue of the ''Quarterly''.

<sup>1</sup> John Page to [[St. George Tucker]], Jun. 29, 1806, Tucker-Coleman Papers, Colonial Williamsburg.

<sup>2</sup> Richmond ''Enquirer'', Mar. 8, 1805.
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[[File:BoydHemphillMurderOfGeorgeWytheTwoEssays1955.jpg|thumb|right|400px|Title page from Boyd and [[Examinations of George Wythe Swinney for Forgery and Murder|Hemphill's]] pamphlet reprint, [https://catalog.swem.wm.edu/law/Record/343766 ''The Murder of George Wythe: Two Essays''] (Williamsburg, VA: Institute of Early American History and Culture, 1955).]]
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of William and Mary, "to shock my Soul." But the former Governor could not forbear comment along other lines. The murder of Chancellor Wythe, he exclaimed, made him "feel for humanity—and the wounded honor of my Country!"<sup>3</sup>

[[wikipedia:William H. Cabell|Governor William H. Cabell]], Page's successor, was also distressed. He reminded one of his sisters-in-law of their experience when they had visited a Miss Nelson, who had then been living in the modest Richmond home of her uncle, the widowered, scholarly Chancellor. "She and all of us were almost children, and few grown men would have found any interest in staying in the room where we were. But the good old gentleman brought forth his philosophical apparatus and amused us by exhibiting experiments, which we did not well comprehend, it is true, but he tried to make us do so, and we felt elevated by such attentions from so great a man."<sup>4</sup>

The up-and-coming [[wikipedia:William Wirt (Attorney General)|William Wirt]], who had served for a year in a judicial office coordinate with that of the victim,<sup>5</sup> wrote from Norfolk to [[wikipedia:James Monroe|James Monroe]], who was abroad, in indignant terms about the "dose of arsenick administered" to "poor old Chancellor Wythe."<sup>6</sup> Five weeks later Wirt could assure his absent wife, "I dare say you have heard me say that I hoped no one would undertake the defence of [the accused, George Wythe] Swinney, but that he would be left to the fate which he seemed so justly to merit."<sup>7</sup>

The editor of a Richmond newspaper was upset enough to describe his news announcement of the death as a "painful task."<sup>8</sup> An editor in Raleigh, North Carolina, was told "by a gentleman lately from Rich-

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<sup>3</sup> John Page to St. George Tucker, Jun. 29, 1806, Tucker-Coleman Papers.

<sup>4</sup> William H. Cabell to Mrs. William Wirt (undated), quoted in John Pendleton Kennedy, ''[[Life of William Wirt#Page 151|Memoirs of the Life of William Wirt, Attorney General of the United States]]'' (Philadelphia, 1849), I, 151-152. Hereafter cited as Kennedy, ''William Wirt''.

<sup>5</sup> Ambitious for wealth, Wirt found his position as judge of the Superior Court of Chancery for the Eastern District irksome, its salary barely adequate in view of his second marriage, which took place in September, 1802. It "is possible," he observed wryly, "that I may, like Mr. Wythe, grow old in judicial honors and Roman poverty. I may die beloved, reverenced almost to canonization by my country, and my wife and children, as they beg for bread, may have to boast that they were mine." [[Life of William Wirt|William Wirt to Dabney Carr]], Feb. 13, 1803, ''ibid.'', 95. In May, 1803, Wirt returned to the practice of law as an attorney, with his residence and headquarters in Norfolk. ''Ibid.'', 87-101.

<sup>6</sup> William Wirt to James Monroe, Jun. 10, 1806, Monroe Papers, vol. XI, no. 1373, Library of Congress.

<sup>7</sup> William Wirt to Elizabeth Gamble Wirt, Jul. 13, 1806, Kennedy, ''[[Life of William Wirt#Page 152|William Wirt]]'', 1, 152-153.

<sup>8</sup> [[Virginia Argus, 10 June 1806|Richmond ''Virginia Argus'', Jun. 10, 1806]].
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mond" about the crime and was thus enabled to "scoop" the world by publishing the first printed details, albeit inaccurate ones, of the "circumstances of this horrid transaction."<sup>9</sup> Newspapers as far away as Boston recorded its effect.<sup>10</sup> Richmond's press devoted an apparently unprecedented amount of space to the modest, touching, but reserved funeral oration by [[William Munford]]<sup>11</sup> and to laudatory tributes received as anonymous communications to the editors; the total aggregated what seems to have been more column inches of eulogy than had been elicited in Virginia newspapers by the death of George Washington or by that of any other person.<sup>12</sup>

Washington's imaginative, opportunistic biographer, Mason Locke Weems, seized upon news that had "quite galvanized" the "very young and tender hearted" in Charleston, South Carolina, as excuse enough for a discursive essay. That itinerant book-peddler described himself as "getting now to be a little oldish . . . , and daily, as becomes a stranger in Charleston, at this season, looking out for a squall of the same sort." Weems viewed with equanimity the fact that "death, by a touch of his old thresher, with equal ease, brings down a Chancellor or a cherry." He professed no grief over the death of the Virginian he portrayed as "[[Honest Lawyer|The Honest Lawyer]]." On the contrary, the effusive "Parson" enjoined joy "that this veteran of the law, after a life of glorious toil, to revive the golden age of justice on earth, was returned to the high courts of heaven-not

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<sup>9</sup> Raleigh, N. C., ''Minerva'', Jun. 16, 1806.

<sup>10</sup> Boston, Mass., ''Gazette'', Jun. 19, 1806, and ''Columbian Centinel'', Jun. 21, 1806.

<sup>11</sup> After the death of Wythe's second wife in 1787, William Munford (1775-1825) had lived in Wythe's home in Williamsburg and had been a special object of Wythe's generous attentions to youth. Grateful, Munford named his oldest child George Wythe Munford "after my old friend and benefactor the Chancellor." William Munford to his sister-in-law, Mrs. Mary R. Preston, Jan. 10, 1803, Munford- Ellis Papers, Duke University Library. Munford, his heart "torn with sorrow," then accepted the Council of State's assignment to preach the funeral oration, partly because "the ties of gratitude to that best of men, for the extraordinary kindness he ever manifested towards me, ought to prohibit my suffering him to go to his grave without an Eulogy." William Munford to Governor William H. Cabell, Jun. 8, 1806, Executive Papers, Virginia State Library. The funeral oration by Munford was printed in its entirety by two Richmond newspapers: Richmond ''Enquirer'', Jun. 13 and 17, 1806; Richmond ''Virginia Argus'', Jun. 17, 1806.

<sup>12</sup> See issues of the ''Enquirer'', the ''Impartial Observer'', the ''Virginia Argus'', and the ''Virginia Gazette, & General Advertiser'' during the first three or four weeks after Jun. 8, 1806. The author's comparison is based upon impressions rather than upon actual counts of the space allotted by Richmond editors to obituaries, eulogies, etc., for Wythe and for such other distinguished citizens as George Washington, who had died in 1799, and Edmund Pendleton, who had died in 1803.
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pale and trembling . . . , wet with widows' tears, and blood of murdered patriots, to meet the tear-avenging God; but bright in conscious integrity, with hands pure as the sweet palms which press the alabaster bottles of life, and in robes of innocence, snow-white as those that angels wear, to meet the smiles of the Judge Supreme, and the acclamations of brother saints innumerable."'<sup>13</sup>

Celebrants of the Fourth of July in 1806 drank toasts to the memory of George Wythe.<sup>14</sup> Restricted to severe brevity by that social form of tribute, those who gathered for the Fourth at Lexington, Kentucky, remembered Wythe simply as "a faithful labourer in the vineyard of the republic."<sup>15</sup> There the orator of the day was Henry Clay, who until his own death remained proud of the fact that he had been associated with Wythe's court during the 1790's. Indeed, young Clay had been the amanuensis who transcribed for publication the Chancellor's annotated decisions, confusingly peppered though they were with Greek phrases Clay had been able neither to understand nor to write well.<sup>16</sup> Saddened by the news that had plunged Richmond into mourning (news that had just reached Lexington), Clay made his address "short and impressive."<sup>17</sup>

The sense of revulsion felt throughout the country crossed party lines as well as state lines. A Federalist organ in the nation's largest city copied from the Richmond ''Enquirer'' two paragraphs of Republican editor Thomas Ritchie's shocked obituary. To those paragraphs it appended the Petersburg, Virginia, ''Republican's'' pointed comment: "It is generally believed, that this patriot, has been brought to the grave, by means, the 'most foul, base and unnatural,' and that the accused is to undergo an examination."<sup>18</sup> Even a modern interpreter of the Old Dominion cites the felony as the worst example of the cussedness—or something worse—

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<sup>13</sup> M. L. Weems, "[[Honest Lawyer|The Honest Lawyer: An Anecdote]]," Charleston, S. C., ''Times'', Jul. 1, 1806.

<sup>14</sup> [[Richmond Enquirer, 8 July 1806|Richmond ''Enquirer'', Jul. 8, 1806]].

<sup>15</sup> Lexington ''Kentucky Gazette'', Jul. 5, 1806.

<sup>16</sup> Henry Clay to B. B. Minor, May 3, 1851, printed in Benjamin Blake Minor, '[[Memoir of the Author]]," in George Wythe, ''Decisions of Cases in Virginia, by the High Court of Chancery, with Remarks upon Decrees, by the Court of Appeals, Reversing Some of Those Decisions'' (2d ed., B. B. Minor, ed., xxxii-xxxvi. Richmond, 1852), Hereafter cited as Wythe, ''Decisions''.

<sup>17</sup> Bernard Mayo, ''Henry Clay, Spokesman of the New West'' (Boston, 1937), 208-209.

<sup>18</sup> Philadelphia, Pa., ''Poulson's American Daily Advertiser'', Jun. 17, 1806. This newspaper attributed the remark to the Petersburg ''Republican'' of an unspecified date.
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that she attributes to Virginians.<sup>19</sup> The murder of George Wythe took at the time top or high rank among the state's most heinous crimes. It still does.

Inevitably, the revolting affair created quite a stir, for people ''will'' talk. Throughout the week before the prostrated Wythe's last breath set the bells of Richmond a-tolling, his death was a foregone conclusion. People marveled that a man of his age could so long survive the excruciating agonies of so insidious and lethal a poison. While Wythe still suffered, strong suspicion was aroused. Circumstances and tangible evidence converted suspicion into conviction at least seven days before the poison produced its ultimate effect upon the Chancellor's strong constitution.

The suspect was as undoubted as was the conclusion that Wythe was a victim of premeditated murder by means of arsenic. Invariably the slayer was identified as the venerable patriot's teen-aged grandnephew and namesake, George Wythe Swinney, an ingrate who had already proved himself unworthy of the home and education he had enjoyed for several years under the hip roof of the Chancellor's unpretentious cottage. Had not that young reprobate stolen books and money from his too-trusting benefactor? Had he not forged checks against his patron's bank account? And had it not been generally known, doubtless by Swinney himself, that he was the chief heir to Wythe's estate, a modest one but doubtless large enough to provide some relief to a culprit in financial difficulties? So, people said, he had placed his fatal dose in the breakfast coffee served in the unsuspecting household on Sunday morning, May 25. Immediately after that meal the good old judge and two freed Negroes had become critically ill. Lydia Broadnax, the Chancellor's faithful cook and servant, recovered. Michael Brown, the mulatto lad to whom Wythe had personally been giving a classical education—Greek and all—as a practical experiment in testing and developing the intelligence of Virginia's other race, had died on the next Sunday, June 1. The Chancellor himself lived in torment—and perhaps toward the end in a merciful coma—through a second week, but he died on the second Sunday morning, June 8. Fortunately, however, he did not expire before he had altered his will to disinherit the villainous Swinney.

Such is the traditional account of the death of Wythe—a paraphrase expanded to greater length than any known to have been written within the next two weeks, doubtless shorter than many conversational versions

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<sup>19</sup> Virginia Moore, ''Virginia Is a State of Mind'' (New York, 1943), 190-191.
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of the time, and certainly embodying the contemporary explanations of the timing, the method, and the motive of the murderer of Michael Brown and George Wythe.<sup>20</sup> This story of the baneful circumstances has persisted ever since 1806. In its retellings it has undergone normal embellishments and amendments. Developments not fully understood when they occurred gave the tale a poor foundation at the start. The recollections of its original narrators grew more and more subject to error with the passing years. Family traditions, transmitted orally, added details and supplied conversations that seem more logical than they are trustworthy. Fanciful emphases and interpretations have been born of assumptions, not of research.

The only substantial modification, however, has been a pronounced tendency to portray the poisoning of Wythe as an accident, while that of Michael Brown has remained the result of intentional murder. This alteration cannot be traced backward beyond 1850. It stems from two sources that were not independent of each other. One was the quite faulty memory of Dr. John Dove of Richmond, who claimed in 1856 that he had been "[[Memoranda Concerning the Death of Chancellor Wythe|present during the sickness & death of Judge Wythe]]." Dove alleged that the Chancellor had been ill before May 25, 1806, and that Swinney had not expected him to eat breakfast that Sunday morning where the poisoned coffee was to be served. The other source was Benjamin Blake Minor, editor of the ''Southern Literary Messenger'', who contributed a biographical sketch to the second edition of the Chancellor's ''Decisions'' (1852). Minor talked with Dr. Dove, who undoubtedly told him something to the effect that Swinney had "vowed vengeance" only against the mulatto boy; and

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<sup>20</sup> Evidently the earliest summaries of the circumstances now extant are in the reliable letters written by William DuVal to Thomas Jefferson on [[Jefferson-DuVal Correspondence#William DuVal to Thomas Jefferson.2C 4 June 1806|Jun. 4 and 8]], preserved in the Jefferson Papers, Library of Congress. Neither attributes to the poisonings a plain method or motive. The earliest written statement as to motivation and method is apparently to be found in the letter of Jun. 10, 1806, from William Wirt in Norfolk to James Monroe, Monroe Papers, vol. XI, no. 1373. That letter was written before Wirt had learned of Wythe's death. Internal evidence in Wirt's letter indicates that the allegations it relayed were based exclusively on information written on Jun. 5, in a letter that has not been found, by Governor William H. Cabell, his brother-in-law. A later account is in the brief, less specific recollection recorded by Littleton Waller Tazewell, who wrote that "it was generally believed" that Wythe's death "was produced by poison, administered in his coffee, by a reprobate boy, a relation of his who he had undertaken to educate, and who was afterwards convicted of having committed many forgeries of checks in his patrons name." "Sketches of his own family, written by Littleton Waller Tazewell, for the use of his children. Norfolk. Virginia. 1823" (MS. in the Virginia State Library), 121.
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Minor found what seemed to him to be sufficient substantiation in Wythe's will and two of its codicils, which made Swinney the residuary legatee of bequests to Michael Brown.<sup>21</sup> Until now the only serious analysis of the traditional account of Wythe's death and of the Dove-Minor misinterpretation has been that of Julian P. Boyd. His lucidly reasoned booklet on ''[[Murder of George Wythe|The Murder of George Wythe]]'' assayed them chiefly by the test of comparison with information found in seven previously unexploited letters written in 1806 to President Jefferson by Wythe's intimate friend and executor, William DuVal.<sup>22</sup>

But other and even better contemporary records are also extant, and it is good that the ''William and Mary Quarterly'' affords space in this issue both for them and Dr. Boyd's thoughtful interpretation, now relatively unavailable. Chief among these additional documents are official court records of the preliminary trials of George Wythe Swinney for forgery and murder. Like pirates' gold buried in a forgotten pit, they lay neglected through more than a century and a quarter despite recurrent curiosity about Wythe's tragic death. These legal records, discovered by the present writer a number of years ago and now published for the first time, contain precious nuggets of authentic information. They include digests of the sworn testimony of sixteen witnesses for the prosecution against Swinney. They add up to a convincing indictment of him. The discovery was made in the office of the Clerk of the Hustings Court of the City of Richmond,<sup>23</sup> where the documents lay within the

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<sup>21</sup> Both of the phrases quoted above are from Dr. Dove's recorded recollections, which are replete with provable errors and must be considered wholly suspect. "[[Memoranda Concerning the Death of Chancellor Wythe|Memoranda concerning the death of Chancellor Wythe]]—Signed in the Aut[o]-g[rap]h. of T[homas]. H. Wynne and rec'd by him from Dr. John Dove, Sept. 16, 1856," MS. in the Brock Collection, Henry E. Huntington Library and Art Gallery. Hereafter cited as Dove, "Memoranda." For evidence that John Dove, M.D., was a Richmond practitioner from about 1822 to about 1852, see Wyndham B. Blanton, ''Medicine in Virginia in the Nineteenth Century'' (Richmond, 1933), 48, 76, 91, 238, 240. For evidence that Dove influenced Minor directly, see Minor, "[[Memoir of the Author]]," in Wythe, ''Decisions'', xxvii.

<sup>22</sup> Julian P. Boyd, ''[[Murder of George Wythe|The Murder of George Wythe]]'' (Philadelphia, 1949).

<sup>23</sup> Binder's title "[[Hustings Court Order Book|Order Book No. 6, 1804-1806]]," 464-465, 482-488. Rough drafts of the records for these two cases of the Commonwealth v. Swinney—drafts identical to the final ones in every important respect—can be found in the same office in the volume given the binder's title of "[[Hustings Court Minutes|Minutes No. 3, 1802-1806]]" (MS. with pages not numbered) under dates of Jun. 2 and 23, 1806, respectively. Microfilm copies of both the Minute Book and the Order Book are available in the Virginia State Library. The final drafts of the two documents have been transcribed from the Order Book for publication below.
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domain of the very court to which the laws of Virginia prevailing in 1806 required that such an offender in Richmond as Swinney should be brought first for any trial of which an official record would have been kept. When Richmond had been incorporated in 1782, it was made a unit of local government. The General Assembly had provided by law for the annual election of twelve citizens to serve in their spare time as municipal officials. Half of them were to constitute a legislative Common Council. The remaining six—a mayor, a recorder, and four aldermen—were commanded "to hold a court of hustings" each month. Its jurisdiction in Richmond corresponded to that of a county court within county boundaries. Each of the judges of the Hustings Court had been vested with the powers of a justice of the peace, and they had been specifically assigned the duty "of examining criminals for all offences committed within the limits of the said corporation." If they found a defendant guilty of a serious crime, they were to refer him to a higher court for trial before professional judges and a jury.<sup>24</sup> These governmental and legal arrangements for the preservation of law and order had been modified only slightly in later statutes, but a law of 1803 had increased the membership of the Common Council to fifteen and that of the Hustings Court to nine, doubtless in recognition of Richmond's growth to a population of more than five thousand.<sup>25</sup> We shall find that not all of our questions are answered by these documents, but no searcher for the treasure-trove could reasonably have expected it to be so rich. Yet it multiplies by many times the amount of contemporary data at our disposal. It enables us to confirm some details reported unofficially at the time and to correct others. It supplies us with vivid portraits of a gloomy, wicked, and yet remorseful youth; of the last days of a questioning, then convinced, and ultimately forgiving victim; of the anxious solicitude and growing outrage of the latter's friends; and of their transition from innocent acceptance of his serious illness as a natural thing to mounting suspicion, relatively thorough investigation, and distressing proof of the poisoner's guilt. Coupled with our greater knowledge of toxicology and with other contemporary records not utilized

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<sup>24</sup> William Waller Hening, compiler, ''The Statutes at Large ... of Virginia . . .'' (Richmond, Philadelphia, New York, 1819-1823,) XI (Richmond, 1823), 45-51. Hereafter cited as Hening, ''Statutes''.

<sup>25</sup> ''Ibid.'', XII (Richmond, 1823), 407-408; Samuel Shepherd, compiler, ''The Statutes at Large of Virginia,. . . 1792, to . . . 1806 . . .'' (Richmond, 1835-1836), II, 93, 422-425, III, 73-75. Hereafter cited as Shepherd, ''Statutes''.
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by previous investigators, it affords us a surer understanding of the grim story of the unpunished forgeries and murders committed by George Wythe Swinney than was vouchsafed to any of the people who mourned the death of Chancellor Wythe and sought with decreasing fervor to do justice to the cause of it—a more reliable understanding, indeed, than any of our predecessors attained.

The official record of the examination of Swinney for alleged forgery reads as follows:

At a Court of Hustings called and held for the City of Richmond at the Courthouse, on Monday, the second day of June 1806, for the examination of George W. Swinney,<sup>26</sup> who stands accused of forgery.<sup>27</sup>

Present

Edward Carrington, Gentleman, Mayor,

Samuel Pleasants, Gentleman, Recorder,

Henry S. Shore, William Goodwin, Anderson Barret,

David Lambert and William Richardson, Gentlemen, Aldermen.

The prisoner was led to the bar in custody of the Sergeant of this City; whereupon sundry witnesses were sworn and examined, and the prisoner in his defence fully heard: On consideration whereof, the Court is of opinion that the prisoner is guilty of the offence aforesaid, and doth order that he undergo a trial therefor at the next District Court directed by law to be holden at the Capitol in this City: and it is further ordered that the said George W. Swinney be bound in a recognizance in the penalty of one thousand dollars, with suf-

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<sup>26</sup> George Wythe Swinney, whose surname occurs in contemporary records also in the form of various spellings of Sweeney, was a grandson of George Wythe's sister and hence a grandnephew of Wythe. For genealogical information concerning him and related Sweeneys see W. Edwin Hemphill, George Wythe the Colonial Briton: A Biographical Study of the Pre-Revolutionary Era (Doctoral Dissertation, University of Virginia, 1937), 40.

<sup>27</sup> Swinney had doubtless been accused of forgery as the result of a preliminary hearing before one or more of the municipal magistrates or justices of the peace, presumably within the last five days of the preceding week, May 27-31, as is indicated by the testimony of the first witness below. William Wirt enumerated a few other manifestations of dishonesty on Swinney's part that had been preludes to his climactic crime: "The young villain (only about 16 or 17) had been in the habit of robbing his uncle [i.e., his granduncle, George Wythe] with a false-key, had sold three trunks of his most valuable law-books, had forged his checks on the bank to a considerable amount, & wound up his villainies by this act [of murder]." William Wirt to James Monroe, Jun. 10, 1806, Monroe Papers, vol. XI, no. 1373.
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ficient security in a like penalty, for his personal appearance before the Judges of the said district Court, on the first day of the next term thereof, to answer the Commonwealth of the offence aforesaid; and failing to give the security required, he is remanded to jail until he shall give such security, or shall be otherwise discharged by the course of law.

William Dandridge (Teller of the Bank of Virginia) a witness on the foregoing examination, being sworn, deposeth and saith: That on Tuesday last [May 27], the prisoner produced to him at the bank of Virginia, a check thereon for the sum of one hundred dollars, drawn in the name of George Wythe esquire, which the deponent paid. That some time after, on examining the check, he suspected it to be a forged one, and he thereupon went to the prisoner and stated that he believed there was a mistake in said check; That the prisoner immediately produced the money and delivered the same to the deponent. That the prisoner frequently presented checks at the bank in the name of the said George Wythe; and the deponent verily believes that six checks now produced in Court were presented by the prisoner, and are all counterfeited.

Peter Tinsley,<sup>28</sup> another witness sworn on the said examination deposeth and saith: That he carried to George Wythe esquire seven checks drawn in his name on the bank of Virginia, who denied having drawn or signed more than one of them.

William Dandridge and Peter Tinsley here in Court acknowledge themselves indebted to his Excellency William H. Cabell governor or chief magistrate of the Commonwealth of Virginia, in the sum of one hundred pounds each, of their respective goods and chattels, lands and tenements, to be levied, and to the said governor and his successors, for the use of the said Common-wealth rendered: Yet upon this Condition, that if the said William Dandridge and Peter Tinsley shall severally make their personal appearance before the Judges of the District Court directed by law to be holden at the Capitol in this City, on the first day of the next term thereof, to give evidence on behalf of the Commonwealth against George W. Swinney, who stands accused of forgery, and shall not depart thence without the leave of the said Court, then this recognizance is to be void.<center>
(Minutes signed) E: Carrington Mayor<sup>29</sup>
</center>

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<sup>28</sup> Tinsley was for many years Clerk of the High Court of Chancery.

<sup>29</sup> One item of corrective evidence is brought out in this record. Unofficial reports of 1806, whenever they stated or implied a chronology for Swinney's crimes, invariably indicated that his forgeries and the discovery of them preceded his poisoning of Judge Wythe. On the contrary, Dandridge testified that Swinney was sus-
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The official record of the examination of Swinney on the charge of murder is a remarkably detailed one. Its unusual length doubtless reflects a common impression of the uncommon nature and circumstances of the alleged crime. The record reveals utter desperation on the part of an al-most deranged Swinney. It portrays the mounting growth of suspicion during illnesses that might have been provoked by merely natural causes. It embodies observations that link Swinney conclusively with ratsbane (white arsenic) and yellow arsenic. It records medical symptoms and measures that are not nice but seem necessary. And it indicates reserve on the part of three physicians when they gave under oath their professional judgments whether or not the death of George Wythe could be attributed to arsenic poisoning. This record is as follows:

At a Court of Hustings called and held for the City of Richmond at the Courthouse, on Monday, the 23d. day of June 1806, for the examination of George W. Swinney, who stands accused of murder.<sup>30</sup>
Present

The Same Justices as above.<sup>31</sup>

The prisoner was led to the bar in custody of the Sergeant of this City; where-upon sundry witnesses were sworn and examined, and the prisoner in his

<div style="font-size: 85%;">
pected for the first time of his forgeries after he had presented a sixth forged check at the bank on Tuesday, May 27. That Tuesday will be found to have been two or three days after Swinney had poisoned Wythe. On that Tuesday the Chancellor lay abed in the early stages of his mortal illness. That is one reason—and his charitable, compassionate nature may be another—for the fact that Wythe himself did not testify in court which of the seven checks "carried" to him by Tinsley he had not signed personally. Further details about the six forgeries will be revealed later in this article.

<sup>30</sup> The accusation against Swinney for the alleged murders of "Wythe & Michael Brown the Freed Boy" had resulted, in keeping with Virginia law, from a hearing held on Jun. 18 before Mayor Edward Carrington and two other magistrates or aldermen. On that occasion the examination of witnesses "lasted near Five Hours." The mayor and his two colleagues "were of Opinion that they, Mr. Wythe & Michael, were poisoned by Geo. W Sweeney." The suspect was ordered to be held in jail to await trial by the Hustings Court as a "Court of Examination" on Jun. 23. William DuVal to Thomas Jefferson, [[Jefferson-DuVal Correspondence#William DuVal to Thomas Jefferson.2C 19 June 1806|Jun. 19, 1806]], Jefferson Papers. Cf. Shepherd, ''Statutes'', III, 73-75.

<sup>31</sup> That is to say, the same six who had been present for the trials of earlier cases on Jun. 23: Mayor Edward Carrington, Recorder Samuel Pleasants, Jr., and Aldermen Henry S. Shore, Anderson Barret, David Lambert, and William Richardson. Aldermen William DuVal, William Goodwin, and Thomas Underwood did not sit as judges for this examination. DuVal attended as a witness.
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===Page 554===

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defence fully heard: On consideration whereof, the Court is of opinion that the prisoner is guilty of the offence aforesaid, and doth order that he undergo a trial therefor before the next District Court directed by law to be holden at the Capitol in this City: and thereupon the said George W. Swinney is remanded to jail.<sup>32</sup>

Tarlton Webb,<sup>33</sup> a witness for the Commonwealth on this examination, being sworn, deposeth and saith: That about a fortnight or three weeks be-fore the prisoner was committed to jail, he enquired of the deponent where he could procure any ratsbane? The deponent replied that it was against the law of the United States to have it. The day before the prisoner was apprehended,<sup>34</sup> he came to the house of the deponent's mother, and shewed the depon[en]t something wrapped in paper, which he said was Ratsbane, and in-formed the deponent that he intended to kill himself, and offered to give the deponent some if he wanted to die. The deponent being shown some drugs found in the jail and produced in Court by Mr. [William] Rose,<sup>35</sup> deposes that what the prisoner showed him was like that in Mr. Rose's possession, and that there was about one table spoonful. The prisoner stated to the deponent that he was very unhappy and something pressed upon his mind; but though applied to, would not disclose the cause of his uneasiness to the deponent.

William Rose,<sup>36</sup> another witness sworn on this examination, deposeth and

<div style="font-size: 85%;">
<sup>32</sup> The [[Virginia, June General Court, 1806|Richmond ''Enquirer'', Jun. 24, 1806]], printed the following announcement of the decision: "George W. Swinney was yesterday called before the examining court of this city, on the charge of poisoning his great Uncle, the venerable George Wythe, and a servant boy. He was unanimously remanded to jail for further trial before the district court to be had in September next." Although it was not particularly customary for crime news, especially courtroom news of this tentative sort, to be widely reprinted, this item reappeared in such representative newspapers as the Richmond [[Virginia Argus, 25 June 1806|''Virginia Argus'', Jun. 25, 1806]]; the Alexandria ''Virginia Gazette, & General Advertiser'', Jun. 25, 1806; the Washington, D. C., ''National Intelligencer, and Washington Advertiser'', Jun. 30, 1806, and ''Universal Gazette'', Jul. 3, 1806; the Augusta, Ga., ''Chronicle'', Jul. 12, 1806; and the Savannah, Ga., ''Columbian Museum & Savannah Advertiser'', Jul. 12, 1806, and ''Georgia Republican'', Jul. 15, 1806.

<sup>33</sup> This witness has not been identified positively. His testimony suggests that he was probably a youthful friend of Swinney.

<sup>34</sup> Swinney was arrested on Wednesday, May 28, or Thursday, May 29, according to testimony given in this examination by witness William DuVal, reproduced below. Webb's testimony here to the effect that Swinney told him on May 27 or May 28 that "something pressed upon his [Swinney's] mind" can be, therefore, a veiled reference by Swinney himself to worry and remorse because of the way he had used poison, with results that had not yet proved fatal, and possibly also because of the forgery committed and detected on Tuesday, May 27.

<sup>35</sup> For an identification of William Rose see the next paragraph and footnote 36.

<sup>36</sup> Rose was the public jailor of Richmond. Richmond ''Enquirer'', Jul. 8, 1817. Rose's
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===Page 555===

<blockquote>
saith: That his servant girl Pleasant, went into the garden about twelve o'clock the day after the prisoner was committed to jail and brought the paper this day produced [in court], the contents of which the deponent immediately knew to be arsenic. When the prisoner was committed to jail, the deponent did not search him; but about an hour and a half after, or thereabouts, hearing that it was probable he had pistols, he went into the jail and felt his pocket, and felt that there was a heavy substance wrapped in paper; but supposing that it might be coppers, or some few eighteen penny pieces, he did not take it out of his pocket. The prisoner had the use of the debtors room and the jail yard at his option. As soon [as] the arsenic was found the deponent suspected that Mr. Wythe was poisoned.

Samuel McCraw,<sup>37</sup> another witness sworn on the said examination, deposeth and saith; That being informed by Mr. Rose, that arsenic had been found in his garden, he proposed to have the servant carried into the garden to see the place where [the arsenic had been] found, to ascertain whether it was deposited there, or thrown from the jail yard. That at the place where the servant stated the arsenic to have been found, the deponent found two papers lying about eighteen inches apart: That the crude arsenic had penetrated a little into the earth, and there were two plants one a fennel, the other a beat [''sic''], broken off as he supposed by the throwing the arsenic over the jail wall: The deponent thinks it must have come from the jail yard. The beat [''sic''] that was wounded was next [i.e., nearer] the jail wall and was wounded considerably farther from the ground than the fennel. On the first of June, one week after Mr. Wythe's attack [began], the deponent was re-quested to go to attest [the final codicil to] Mr. Wythe's will. Mr. Wythe re-quested the prisoner's room and trunk to be searched. The deponent, with others, was conducted to the room where the prisoner lodged, opened the chest and found a port folio with a quire of blotting paper, which the deponent believes to be of the same kind with what was found wrapped round the arsenic found in the garden. In the prisoner's room on a writing table, the deponent found a paper on which were a half a dozen strawberries with the appearance of arsenic having been sprinkled over them. He found a phial with an appearance of having had a liquid, some of which adhered to the side of the phial, and on examination was believed to have been a mixture of testimony and that of the next witness make it plain that the former's residence and garden adjoined the jail.

<div style="font-size: 85%;">
testimony and that of the next witness make it plain that the former's residence and garden adjoined the jail.

<sup>37</sup> McCraw was one of the four witnesses who signed the final codicil to Wythe's will. Minor, "[[Memoir of the Author]]," in Wythe, ''Decisions'', xxxviii-xxxix.
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===Page 556===

<blockquote>
arsenic and sulphur. He also found two pieces of coarse brown paper, with something adhering to each, which was also declared to be arsenic and sulphur. The deponent frequently visited Mr. Wythe in his last illness and he appeared to be in very great agony from the first time to his death. Some time before the death of Mr. Wythe, while this deponent was sitting by him, Mr. Wythe exclaimed, cut me—the deponent supposed he wanted to have his flannel cut loose which the deponent accordingly did, but which gave apparent displeasure to Mr. Wythe, who then putting his hand to his throat and heart again called out, cut me, but could make no further explanation: this induced a belief in the deponent and those present that it was his wish to be opened after his death. The deponent never did hear Mr. Wythe express any suspicion of having been poisoned.

Fleming Russell<sup>38</sup> another witness sworn on the said examination deposeth and saith; That the day he received the warrant [for the arrest of Swinney] he went to Mr. Wythe's and found the prisoner: when he showed the prisoner the warrant and carried him to Major DuVal's & discovered he had no pistols, took his knife from him, and put his hand in his coat pocket, he felt very distinctly that he had two separate parcels of something wraped up in paper in his pocket but made no further search. After the prisoner was committed to jail, the deponent informed Mr. Rose, that the prisoner had some-thing else in his coat pocket and advised him to make a search, but did not go with Mr. Rose to make it.

Taylor Williams<sup>39</sup> a witness sworn on the said examination deposeth and saith; That about three weeks before the prisoner was apprehended, he mentioned something to the deponent about poison. The deponent informed him that copperas [i.e., crystallized ferrous sulphate] and water was poison. In about six or seven days after, the prisoner began a conversation with the deponent about poison: the deponent then told him ratsbane was poison, and that a gentleman of his acquaintance used it for the purpose of killing rats, and that [it] was to be bought in the shops, but does not recollect with certainty whether the prisoner asked him where it might be had.

Major William DuVal<sup>40</sup> another witness sworn on said examination de-

<div style="font-size: 85%;">
<sup>38</sup> This witness has not been identified. Judging from his testimony, he must have been a Richmond police officer.

<sup>39</sup> Williams appears from his testimony to have been a young friend of Swinney.

<sup>40</sup> William DuVal was of Huguenot descent, an officer during the Revolutionary War, an attorney, a member of the Virginia General Assembly, a magistrate of Richmond who had served as mayor during 1805-1806, and an intimate friend of Wythe, whose residence was also located in the square bounded by Grace, Sixth, Franklin,
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===Page 557===

<blockquote>
poseth and saith; that on the 25th day of May, he went to see Mr. Wythe, without knowing he was sick, and found him very ill[,] extended on his back. Mr. Wythe said he had not caught cold, that he was as well as usual in the morning, & eat his brea[k]fast as usual; but was immediately taken extremely ill, confined on his back except when forced up, which was upwards of forty times, and had fifteen large evacuations. After the prisoner was committed for the forgery he applied to the deponent by letter to be bailed. Mr. Wythe would have nothing to do with bailing [Swinney]. Mr. Wythe said he was taken ill on the twenty fifth day of May, about nine o'clock after having eat his break-fast; that on wednesday or thursday after, the prisoner was apprehended. Mr. Wythe requested that the prisoner's room and trunk might be searched, which request he repeated frequently, and finally on the first of June prevailed on Mr. McCraw and some other gentlemen who searched the room and trunk and found some papers with something adhereing to them which was declared by Doctor Greenhow<sup>41</sup> to be arsenic. The deponent saw the appearance of arsenic in an out house of Mr. Wythe's, in his yard, used as a shop; and [de-poseth] that some was also found in an old smoak house on a wheel barrow; which on being tried with a pin was proved to be arsenic. On thursday before Mr. Wythe's death he made an ejaculation and declared he was murdered in a low tone of voice. It was generally believed that Mr. Wythe had left the prisoner a great portion of his estate, and known that he had made some pro-vision for the mulatto boy, [Michael] Brown.

Samuel Greenhow<sup>42</sup> another witness sworn on said examination gave the same evidence upon the search of the prisoners room and trunk with McCraw.
and Fifth Streets. DuVal died in Buckingham County in 1842 at the age of 93. W. Asbury Christian, ''Richmond: Her Past and Present'' (Richmond, 1912), 57, 545; Richmond ''Enquirer'', Jan. 13, 1842, and May 13, 1842.

<div style="font-size: 85%;">
<sup>41</sup> The Greenhow to whom DuVal referred may have been the next witness, identified in footnote 42, who is known to have participated in the search of Swinney's room but is not known to have had any claim to the title of Doctor. Conceivably, on the other hand, this Doctor Greenhow may have been the Doctor James G. Greenhow who was living in Richmond in 1815. Blanton, ''Medicine in Virginia in the Nineteenth Century'', 246, 445, citing the Richmond ''Virginia Argus'', Mar. 1, 1815.

<sup>42</sup> Samuel Greenhow issued, as "Principal Agent," a call for the annual meeting in 1809 of the Mutual Assurance Society, the well-known, pioneer Virginia fire insurance company. Richmond ''Enquirer'', Dec. 24, 1808. With men like the Reverend John D. Blair, the Reverend John Buchanan, the Reverend John Holt Rice, and William Munford, Samuel Greenhow was a charter member of the Board of Managers of the Virginia Bible Society, which was organized in Jul., 1813. Christian, ''Richmond'', 87. Greenhow was one of the four witnesses who signed the final codicil to Wythe's will. Minor, "[[Memoir of the Author]]" in Wythe, ''Decisions'', xxxviii-xxxix.
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===Page 558===

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William Price<sup>43</sup> another witness sworn on said examination, gave the same evidence as McCraw and Greenhow on the subject of the search of the prisoner's room, and [substantiated the testimony] of McCraw on the subject of Mr. Wythe’s request to be cut. Mr. McCraw mentioned at that time that he supposed Mr. Wythe wanted to be cut open. Mr. Wythe appeared to be in great agony during his illness, and more particularly when moved.

Nelson Abbott<sup>44</sup> another witness sworn on said examination, deposeth and saith, that on saturday the 24th day of May last, he put an axe, now produced [in court], into a shop in Mr. Wythe’s yard, which he [Wythe] had lent him [Abbott] for a work shop; that on the 27th he went to Hanover and returned on friday the 30th when he discovered the arsenic in its present situation, and a hammer much stained with yellow, which has since been cleaned. The negroes in the shop said the prisoner had beat something they did not know what on the side of the ax with the hammer.

William Claiborne<sup>45</sup> another witness sworn on the said examination deposeth and saith: That he went to Mr. Wythe's the wednesday after his illness [began], who informed him that the Sunday preceding in the morning, he was as well as usual, immediately after breakfast he was taken with a colarimorbus [cholera morbus] and then a violent lax, went forty times that day, and had at least fifteen large evacuations: That on Saturday night he supped [i.e., on Saturday night, May 24, Wythe had supped] on milk and strawberries. Mr. Wythe said all the negroes [of his household] were taken [sick] at the same time. The deponent went into the kitchen and found most of them very ill. He then went to Major DuVal's, and expressed his opinion that the family were poisoned; and suspected the prisoner in consequence of his having been detected [on the previous day, May 27] in the forgery, as the death of Mr. Wythe before the detection could only prevent an alteration in his will which the deponent believed was much in favor of the prisoner. The deponent frequently told the prisoner that he would be well provided for by Mr. Wythe if he behaved well. After the death of the yellow boy [Michael Brown], the deponent was told by some of the negroes that arsenic was found in the outhouses. The deponent took some off the wheelbarrow in the old smoke house, applied fire to it and found from the smell that it was arsenic. The deponent asked Mr. Wythe whether the prisoner break-

<div style="font-size: 85%;">
<sup>43</sup> William Price was another of the witnesses to the final codicil to Wythe's will. Minor, "[[Memoir of the Author]]," in Wythe, ''Decisions'', xxxviii-xxxix.

<sup>44</sup> No information to identify this witness has been discovered.

<sup>45</sup> William Claiborne was the father of W. C. C. Claiborne, Governor of the Territory of Orleans. Richmond ''Enquirer'', Oct. 3, 1809.
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===Page 559===

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fasted with him the morning before he [Wythe] was taken [sick]. At first he did not answer. Afterwards he said he did not know, he [Swinney] was always called to his breakfast, but sometimes took no thing to eat or drink. Mr. Wythe observed he died in peace with all the world, and said he should leave directions for his executor to search the prisoner's trunk. This took place after the death of the boy Michael [on Sunday morning, June <sup>46</sup>], about sunset on the first of June.

[[wikipedia:Edmund Randolph|Edmund Randolph]],<sup>47</sup> being also sworn, deposeth and saith: That on Sunday the first of June about nine o'clock [A.M.], Major DuVal informed the deponent of the death of Michael from poison and [reported] Mr. Wythe as probably dying with the same. Mr. Wythe told the deponent he had supped on strawberries and milk the Saturday before he was taken ill. He wished his will to be altered so as to give to the prisoner's brothers and sisters what he had given him. The deponent made the alteration and then returned home, and afterwards went again to Mr. Wythe and informed him of the death of Michael Brown. The former codicil to the will was then destroyed and the present one made. On Wednesday the fourth of June, the deponent was in-formed by old Lydia [Broadnax] that more marks of poison had been discovered. The deponent went into the shop and saw Abbot's ax. The negro<sup>48</sup>

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<sup>46</sup> George Wythe said in the final codicil to his will, dated Jun. 1, 1806, that he had been told that Michael Brown had died that morning. Minor, "[[Memoir of the Author]]," in Wythe, ''Decisions'', xxxviii-xxxix. An almost contemporary letter also refers to Brown's death on Sunday morning, Jun. 1. William DuVal to Thomas Jefferson, [[Jefferson-DuVal Correspondence#William DuVal to Thomas Jefferson.2C 4 June 1806|Jun. 4, 1806]], Jefferson Papers.

<sup>47</sup> Edmund Randolph, the first Attorney General both of the Commonwealth of Virginia and of the United States, wrote and witnessed the final codicil to Wythe's will. See his testimony here given and Minor, "[[Memoir of the Author]]," in Wythe, ''Decisions'', xxxviii-xxxix. Randolph's career had overlapped Wythe's through the past thirty years—for example, in the Virginia conventions of 1776 and 1788. The first of the two codicils mentioned by Randolph in his testimony evidently devised to George Wythe Swinney's brothers and sisters only what Wythe had formerly bequeathed to Swinney. The second of the two codicils mentioned by Randolph devised to George Wythe Swinney's brothers and sisters everything that Wythe had formerly bequeathed both to Swinney and to Michael Brown. The will and its codicils dated Jan. 19 and Feb. 24, 1806, were proved in the General Court of Virginia on Jun. ii, 1806, by the oaths of Edmund Randolph and Peter Tinsley; and the final codicil, dated Jun. 1, 1806, was proved by the oaths of Samuel McCraw, William Price, and Edmund Randolph. For a printed copy of the will and its three validated codicils see Minor, ''ibid''. An attested manuscript copy is filed under Jun., 1806, in the Jefferson Papers.

<sup>48</sup> This reference to a certain Negro is not as precise as we might wish. Doubtless, however, Randolph talked on Jun. 4 with a Negro man employed in Nelson Abbott's workshop. Possibly this man was one of the same "negroes in the shop" who, according to Abbott's deposition, had told Abbott on May 30 that they did not
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===Page 560===

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was uncertain whether [it was on] the 24th or 26th of May, that the prisoner had caused the appearances [of poisons in the workshop]; but at last settled that it was on Saturday [May 24] when he found the prisoner in the shop, and one of the doors forced, and the prisoner was in the act of pounding some-thing on the axe. The prisoner asked him what it was? the negro replied he believed it was ratsbane. The prisoner then scraped it as clean as he could off the axe and folded it up in a piece of paper, wiping the axe with shavings. It was generally understood and believed that Mr. Wythe had left the bulk of his estate to the prisoner.

Doctor James McClurg,<sup>49</sup> another witness, being sworn, deposeth: That he was present at the opening of the body of Michael Brown. The lower part of the stomach was very much inflamed and had the appearance of the black vomit. The deponent went to visit Mr. Wythe on the day before the boy died and found him with a fever, his tongue very foul, had had no passage for twelve hours, and was free from pain. The appearance of the boy was such as arsenic might have produced; but such as might also have been produced by a great collection of bile. The deponent was also present at the opening the body of Mr. Wythe. The whole of his stomach and intestines had an uncommonly bloody appearance, that if produced by arsenic, in his [McClurg's] opinion, death would have ensued much sooner. Mr. Wythe had been frequently attacked with disordered bowells within three years last past.

Doctor James D. McCaw,<sup>50</sup> being also sworn, deposeth: That he was called ''know'' what substance Swinney had pounded into powder. In slight but not necessarily contradictory contrast, the Negro of whom Randolph testified simply ''believed'' on May 24 that the substance was ratsbane.

<div style="font-size: 85%;">
<sup>49</sup> Under the reorganization of the College of William and Mary instigated by Thomas Jefferson in 1779, James McClurg (1746-1823), Edinburgh-trained physician, had been one of Wythe's four colleagues in the faculty. For three years Dr. McClurg held the newly created chair of the professor of anatomy and medicine. Like Wythe, McClurg went to Philadelphia in 1787 to attend the convention from which emerged the Federal Constitution. McClurg was chosen to be Richmond's mayor in 1797, 1800, and 1803. For a quarter of a century he was one of the community's out-standing physicians. When the Medical Society of Virginia was organized in 1820, he was elected its first president. Although he was too infirm to take an active part in its affairs, he was re-elected in the next year. Blanton, ''Medicine in Virginia in the Nineteenth Century'', 13, 75-76; Christian, ''Richmond'', 545.

<sup>50</sup> James Drew McCaw, M.D., was one of the founders of the Medical Society of Virginia. His father, Dr. James McCaw, founded what might be called a Virginia medical dynasty destined to last five generations. Blanton, ''Medicine in Virginia in the Nineteenth Century'', 116-117, 261, 367. James D. McCaw's offer of 1802 to inoculate the poor of Richmond against smallpox had been accepted by the Common Hall or Council. Richmond ''Examiner'', Jun. 2, 1802. Judging by James D. McCaw's testi-
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===Page 561===

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to attend Mr Wythe on the 26th of May between four and five o'clock. He had been up with a violent puking & purging, and the deponent gave him an opiate, after which he got better, and was better until the discovery of the prisoner's forgery [on Tuesday, May 27], when he became worse and continued to grow worse. The deponent saw the boy [Michael Brown] on the day before his death, when he had a fever and complained of great pain. The deponent saw him opened after his death, and thinks that his death might have been occasioned by a great accumulation of bile.

Doctor William Foushee,<sup>51</sup> being sworn, deposeth: That he attended the opening of Mr Wythe's body in the presence of many other physicians.<sup>52</sup> The stomach was very much inflamed, and appeared as if a new inflamation was coming on. There was very little bile in the liver. The same appearance that his stomach and intestines exhibited might have been produced by arsenic, or any other acrid matter.

James McClurg, William Foushee, James D. McCaw, William Rose, Samuel McCraw, Fleming Russell, William Claiborne, William Price (Register) Nelson Abbott and Taylor Williams,<sup>53</sup> here in Court acknowledge themselves

<div style="font-size: 85%;">
mony, he seems to have been more nearly the family physician to the Wythe household than any of the other physicians whose names occur in records concerning the Chancellor's last illness. To be compared with the recorded testimony of Dr. McClurg and that of Dr. McCaw concerning the autopsy on the body of Michael
Brown is DuVal's letter to Jefferson: "As a Magistrate I requested four eminent Physicians to open the body of the Boy. They did so; from the inflamation on the Stomach & Bowels they said that it was the kind of Inflamation produced by Poison." William DuVal to Thomas Jefferson, [[Jefferson-DuVal Correspondence#William DuVal to Thomas Jefferson.2C 4 June 1806|Jun. 4, 1806]], Jefferson Papers.

<sup>51</sup> William Foushee, M.D., had been born in the Northern Neck in 1749. Like McClurg, he studied medicine in Edinburgh. He served as Richmond's first mayor, 1782-1783, as the town's postmaster for several years, and as the president of its Common Hall or town council for several years. He also served in both the legislative and executive branches of the state government. For many years he presided over the James River Company's internal navigation improvement projects. The General Assembly named him among the charter trustees of the Richmond Academy in 1802. Twenty years later the Medical Society of Virginia elected him its second president. When he died in 1824, he was almost seventy-five years old and was said to have been Richmond's oldest inhabitant. His death evoked an unusually detailed obituary. Christian, ''Richmond'', 57-58, 545; Blanton, ''Medicine in Virginia in the Nineteenth Century'', 75-76; Richmond ''Enquirer'', Aug. 24, 1824.

<sup>52</sup> DuVal reported to Jefferson that William Foushee, James D. McCaw, James McClurg, and two other physicians performed the autopsy on Wythe's body on the day of his death. DuVal stated simply that they found "considerable inflamation in the Stomach," but he added in the same context that it was "strongly suspected" that Wythe and Michael Brown had been poisoned with yellow arsenic by George Wythe Swinney. William DuVal to Thomas Jefferson, [[Jefferson-DuVal Correspondence#William DuVal to Thomas Jefferson.2C 8 June 1806|Jun. 8, 1806]], Jefferson Papers.

<sup>53</sup> It may be highly significant that four of the fourteen witnesses were not
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severally indebted to his Excellency William H. Cabell governor or chief magistrate of the Commonwealth of Virginia, in the sum of one hundred pounds each, of their respective goods and chattels, lands and tenements, to be levied, and to the said governor and his successors, for the use of the said Common- wealth rendered: Yet upon this Condition, that if the said James McClurg, William Foushee, James D. McCaw, William Rose, Samuel McCraw, Fleming Russell, William Claiborne, William Price (Register) Nelson Abbott and Taylor Williams, shall severally make their personal appearance before the Judges of the District Court directed by law to be holden at the Capitol in this City on the first day of the next term of that Court, to give evidence on behalf of the Commonwealth against George W. Swinney, who stands accused of murder, and shall not depart thence without the leave of the said Court, this recognizance is to be void.

(Minutes signed) E: Carrington, Mayor

The depositions of the sixteen witnesses in the two proceedings of June 2 and 23 make Swinney's motives for murder clearer than other contemporary records. Obviously, that troubled knave had tried to solve more than one of his problems at once. By a single desperate deed he might forestall discovery of his forgeries, prevent any resultant reduction or cancellation of the legacy he would receive from Wythe, and claim his inheritance prematurely.

But the second Hustings Court record does not enable us to determine with finality precisely when and how Swinney committed his acts of murder. None of the testimony links arsenic with the coffee served in Wythe's cottage, according to the traditional story of the poisonings, at breakfast on Sunday, May 25. To contrary import are the depositions of Claiborne, McCraw, and Randolph. Their assertions under oath indicate that Swinney had mixed some arsenic with strawberries and that Wythe ate strawberries for supper on Saturday, May 24. Wythe's breakfast coffee may have become the supposed vehicle for the poison on the invalid ground of reasoning of the ''post hoc, propter hoc'' type. Actually, so far as we can tell,

placed under bond to be available to serve as witnesses in the forthcoming trial of Swinney on the charge of murder before the District Court. The four who were exempted from such an obligation were William DuVal, Samuel Greenhow, Edmund Randolph, and Tarlton Webb. While in some respects their testimony before the Hustings Court merely confirmed that of other witnesses, in these respects, and more especially in reference to other observations concerning which others did not testify, the evidence submitted by these four could not be omitted without weakening the case against Swinney.

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he may have consumed poisoned foods at both meals. A fatal dose of arsenic usually produces acute symptoms within about an hour after it enters the human stomach, and death usually follows within one to three days. Wythe's case was not a typical one in the latter respect, and we have scant cause to assume that it was a normal one in the former respect. Fatal dosages of arsenic have been known in rare instances to cause no symptom for as many as twelve hours, particularly if the poison was ad- ministered in solid rather than liquid form and if a full meal was consumed with it; and death has been known to result as much as two weeks after the appearance of symptoms, as it did in Wythe's case. An inexperienced, experimenting Swinney may have underestimated on May 24 the amount of arsenic required to accomplish his premeditated purpose. He may have awaked the next morning to find that his attempt of the previous afternoon or evening had failed. He may then have added a second and larger quantity of arsenic to the breakfast menu. Neither this nor any alternative possibility can be proved conclusively from the available evidence.

More important than questions about details of that sort is the official record's revelation of the limited, inconclusive nature of the physicians' findings in the two autopsies. They did not exhaust every means known to the medical scientists and chemists of their generation to determine whether or not the deaths of Michael Brown and George Wythe had been unnatural ones. One authoritative treatise, for example, published in 1832 but embodying comparatively little that had been learned since 1806, devoted fully a hundred pages to its discussion of arsenic poisoning, forty of them to various definitive tests by which the presence of arsenic can be determined. Its author commented on the ease with which that almost tasteless and odorless chemical element could be procured in various forms and compounds and could be administered surreptitiously. Then he added,

"It is fortunate, therefore, that there are few substances in nature, and perhaps hardly any other poison, whose presence can be detected in such minute quantities and with so great certainty."<sup>54</sup> The inflamed tissues observed by the Richmond doctors were ambiguous. The same kind of examination today would do little more, if any, to pin down positively the cause of such deaths, for gastrointestinal inflammations of quite similar

<div style="font-size: 85%;">
<sup>54</sup> Robert Christison, ''A Treatise on Poisons, in Relation to Medical Jurisprudence, Physiology, and the Practice of Physic'' (2d ed., Edinburgh, 1832), 223. This volume's treatment of arsenic poisoning covers pp. 223-324.
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===Page 564===

<blockquote>
appearance can result from any of several distinct causes, both natural and unnatural. The Richmond physicians' post-mortem inspections should not have ended short of a few simple laboratory procedures. Standard analyses of that kind would almost certainly have proved beyond question whether or not arsenic had ended the lives of the youthful Michael Brown and the aged George Wythe.

The above testimony in both of the suits of the Commonwealth ''v.'' Swinney confirms an undisputed conclusion reached by all who have ever studied the matter: Wythe himself became fully convinced on his death- bed that Swinney was a forger and a murderer. Yet, in fact, that young man escaped legal punishment for both offenses. His road to freedom was, however, a tortuous one. Sometime during the summer of 1806 the charges against him were referred to a grand jury. It returned true bills. Thus it became the third judicial body to render a verdict of guilt against Swinney on each accusation, for the same conclusion had already been reached on each count by one or more of Richmond's magistrates and by the Hustings Court. Specifically, the grand jury cleared the way for the trial of Swinney by the District Court on each of six distinct indictments—one for the murder of Wythe, another for that of Michael Brown, and four for forgeries of Wythe's name on as many checks.<sup>55</sup>

On September 2, 1806, the District Court proceeded to tackle what the [[Respectfully Dedicated to the Legislature of Virginia|Richmond ''Enquirer'']] termed "the celebrated trial of George W. Sweeney, on the charge of administering arsenic to his great Uncle the venerable George Wythe." Judges Joseph Prentis and John Tyler, Sr., whose son of the same name was destined to become the tenth President of the United States, were the two members of Virginia's General Court assigned to preside over this session in the Richmond district.<sup>56</sup> Presumably, the two judges' judicial robes hid the mourning bands of crape that they and other members of the General Court had resolved to wear on their left arms for three months in tribute to the jurist Virginia had lost.<sup>57</sup> At the

<div style="font-size: 85%;">
<sup>55</sup> There is no record of any decision in regard to the other two checks that William Dandridge and Peter Tinsley had testified were, in the opinions of Dandridge and Wythe, also forged.

<sup>56</sup> [[Richmond Enquirer, 9 September 1806|Richmond ''Enquirer'', Sept. 9, 1806]].

<sup>57</sup> Ibid., Jun. 24, 1806; [[Virginia Argus, 17 June 1806|Richmond ''Virginia Argus'', Jun. 17, 1806]]; Richmond ''Impartial Observer'', Jun. 21, 1806. The Governor and Council had resolved on Jun. 14, "in honour of the deceased," to wear black bands similarly for one month as an "outward Sign of respect to his memory." Journals of the Council of Virginia (MSS. in the Virginia State Library), XXVII, 448. When the Virginia General Assembly convened in Dec., 1806, its members also resolved unanimously to "wear a badge of
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===Page 565===

<blockquote>
prosecuting attorney's table sat Philip Norborne Nicholas,<sup>58</sup> the popular young Attorney General of Virginia and successful leader in recent years of the Jeffersonian Republican party in the state. Nicholas had known Wythe while the Chancellor had still resided in Williamsburg. More recently they had been associated in various legal and political activities. Presumably, Nicholas had every reason to prosecute the case with all the vigor at his command.

But the shocked, incensed atmosphere of June had doubtless grown calmer by September, and impressive talents had been aligned on Swinney's side as counsel for the defense.<sup>59</sup> One of these lawyers was the same Edmund Randolph who had written the codicil disinheriting Swinney, the same Randolph who had given damaging testimony against him in the Hustings Court. The other lawyer at Swinney's side was the same William Wirt who had expressed a hope that no attorney would be found to defend him, so that he would be left to suffer the fate he deserved.

Wirt had been contemplating at the beginning of the summer a desire to move from Norfolk to Richmond, for his wife found Norfolk's summers unbearable. He had concluded at that distance within a month after Wythe's death that Swinney could conceivably be innocent of murder. Judge William Nelson of the General Court had told him that "there was a difference of opinion" among Richmond doctors as to the cause of the Chancellor's death and that "the eminent McClurg, amongst others, had pronounced that his death was caused simply by bile and not by poison." Then a brother of Swinney's distressed mother had traveled eastward to implore Wirt to serve as an attorney for the defense.<sup>60</sup>

Although Wirt had already decided before that visit that "it would not be so horrible a thing to defend" Swinney "as, at first, I had thought it," the plea made by his uncle posed a problem of conscience and of reputation. By letter Wirt asked his wife, "What shall I do?" And then he proceeded to influence her decision. "If there is no moral or professional impropriety in it, I know that it might be done in a manner which would avert the displeasure of every one from me, and give me a splendid ''debut'' in the metropolis. Judge Nelson says I ought not to hesitate a moment

<div style="font-size: 85%;">
mourning" for one month. Washington, D.C., [[National Intelligencer, 15 December 1806|''National Intelligencer, and Washington Advertiser'', Dec. 15, 1806]].

<sup>59</sup> ''Ibid.''

<sup>60</sup> William Wirt to his wife, Jul. 13, 1806, Kennedy, ''William Wirt'', I, 152-153.
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===Page 566===

<blockquote>
to do it; that no one can justly censure me for it; and, for his own part, he thinks it highly proper that the young man should be defended. Being himself a relation of Judge Wythe's, and having the most delicate sense of propriety, I am disposed to confide very much in his opinion."'

The issue was settled within ten days. Nelson reiterated his opinion as to "the perfect propriety of the step." Mrs. Wirt evidently protested that her husband need not fear that she would suffer reproach. "I shall defend young Swinney under your counsel," he wrote her. "My conscience is perfectly clear, from the accounts I hear of the conflicting evidence."<sup>62</sup>

Records of the District Court, in which Randolph and Wirt undertook to save the life of George Wythe Swinney, are not extant; apparently they did not survive the fire that accompanied the Confederate evacuation of Richmond in April, 1865. Only from other sources can we learn whether or not the defense attorneys achieved their goal. The Richmond ''Enquirer'' reported succinctly the results of what was probably a day replete with courtroom drama and legal technicalities. "After an able and eloquent discussion" by counsel for the Commonwealth and for Swinney, read that newspaper's summary, "the jury retired, and in a few minutes, brought in the verdict of ''not guilty''. A similar indictment against him [Swinney] for the poisoning of Michael, a mulatto boy (who lived with Mr. Wythe) was quashed without a trial."<sup>63</sup>

There could have been no doubt whatsoever that Virginia's laws of 1806 defined murder by poisoning, if it were committed by a free person, to be murder of the first degree, punishable by death.<sup>64</sup>Some other ex- planation of the jury's astonishing verdict must be sought. Editor Thomas Ritchie offered his readers one hint why Randolph and Wirt had been able to win a quick decision in favor of their despised client. Some of the "strongest testimony" that had been heard by the Hustings Court and by the grand jury, Ritchie remarked, "was kept back from the petit jury" in the District Court. "The reason is, that it was gleaned from the evidence of negroes, which is not permitted by our laws to go against a white

<div style="font-size: 85%;">
<sup>61</sup> ''Ibid''. Nelson's distant kinship to Wythe was evidently through the second Mrs. Wythe, who had been a Taliaferro. See a copy of the will of Rebecca Cocke Taliaferro of "Powhatan," James City County, Nov. 12, 1810, in the possession of Colonial Williamsburg.

<sup>62</sup> William Wirt to his wife, Jul. 23, 1806, Kennedy, ''[[Life of William Wirt#Page 154|William Wirt]]'', 1, 154.

<sup>63</sup> [[Richmond Enquirer, 9 September 1806|Richmond ''Enquirer'', Sept. 9, 1806]].

<sup>64</sup> the enactments of 1796 and 1803, Shepherd, ''Statutes'', II, 5-14 and 405-406, respectively.
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===Page 567===

<blockquote>
man."<sup>65</sup> Actually, the reason assigned by the editor would have been more nearly true if he had phrased it more carefully. As far back as 1732 and as recently as 1801 the statutes of Virginia had stipulated that a Negro or a mulatto could be qualified as a witness only in a lawsuit brought against a Negro or a mulatto or by the commonwealth for one.<sup>66</sup> That is why Lydia Broadnax had not told the Hustings Court in June whatever she knew about the involvement of George Wythe Swinney in the deaths of Michael Brown and George Wythe.

The legal disability of Negroes to testify against Swinney had loomed large in people's thinking about the prospective trials of that ingrate for murder ever since Michael had died. Even before William Wirt learned with certainty that Wythe had also been a victim, Wirt had realized that one law might prevent the fulfillment of justice under another. "The chain of circumstances fix the guilt of Sweney beyond reach of doubt," Wirt had then been willing to assert, "but some of those circumstances, material to his conviction in a court of law, depend, it seems, on black persons, & so he will escape for the poison[ings]. he is under prosecution for the forgery & of that must be convicted."<sup>67</sup>

One logical question is answered neither by Ritchie's explanation nor by Wirt's prophecy. Why was any of the evidence that had been admissible in the three previous proceedings—evidence that had resulted in three verdicts of guilt—not presented in the District Court? No record answers that question. Possibly the District Court refused to hear some of the testimony that had been given before the Hustings Court. Evidence given by the white witnesses in June concerning what Negroes had ob-

<div style="font-size: 85%;">
<sup>65</sup> [[Richmond Enquirer, 9 September 1806|Richmond ''Enquirer'', Sept. 9, 1806]].

<sup>66</sup> The exact words of the law of 1801 were: "Any negro or mulatto, bond or free, shall be a good witness in pleas of the commonwealth for or against negroes or mulattoes, bond or free, or in civil pleas where free negroes or mulattoes shall alone be parties." Shepherd, ''Statutes'', II, 300. The statute of 1785 was to the same effect, although its provisions were couched in negative terms and omitted the words "bond" and "free" in each of the five instances of their use in the enactment of 1806. Hening, ''Statutes'', XII (Richmond, 1823), 182-183. Digests of the 1732 and 1748 statutes and of related legislation can be found conveniently in June Purcell Guild, ''Black Laws of Virginia: A Summary of the Legislative Acts of Virginia concerning Negroes from Earliest Times to the Present'' (Richmond, 1936), 154-155.

<sup>67</sup> William Wirt to James Monroe, Jun. 10, 1806, Monroe Papers, vol. XI, no. 1373. Internal evidence in this letter indicates that for the facts he stated Wirt was indebted to a communication written on Jun. 5, 1806, by his brother-in-law, Governor Cabell, and the prophecies Wirt voiced may also have reflected the Governor's thinking as of that date.
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===Page 568===

<blockquote>
served and had told them may have been ruled inadmissible by Judges Prentis and Tyler because of its Negro source or its hearsay nature. On the other hand, we have no proof acceptable by the ordinary standards of historical criticism that Swinney was acquitted because of the repression of the testimony Lydia Broadnax or other Negroes might have given but for Virginia's laws. Ritchie's allegation about the withholding of testimony "gleaned from the evidence of negroes" remains unsubstantiated, and Wirt's prophecy can be considered to have been merely a recognition of the flimsiness of the circumstantial evidence others would be able to give.

The simple fact remains that no known witness was able to assert in any of the four proceedings that he had actually seen Swinney put poison into food eaten by Michael Brown or by George Wythe. Moreover, no physician is known to have been willing to swear that either of the two autopsies proved that death had been caused by a poison. In other words, the evidence against Swinney was purely circumstantial.

Thomas Ritchie himself had not been hysterical in his attitude toward Swinney during the first days of resentment following the news of the Chancellor's death. The editor had remembered, sanely and circum- spectly, that the accusations against Swinney had not then been proved and that, until and unless they were, he should be presumed innocent. "Every situation in life has its rights and its duties," Ritchie had cautioned his readers. "Let us therefore respect the rights of the accused."<sup>68</sup> If Swinney's two lawyers took advantage in the District Court of every legal technicality to protect their client's rights, Ritchie should have been among the last to imply any criticism of them, for they had placed themselves under obligation to do so.

In any case, George Wythe was dead. Another man's life was at stake. It is the very genius of the legal system Wythe had received from his forefathers and had himself helped to develop and to refine that this second life should not be taken lightly. Since we do not know in detail what transpired in that Richmond courtroom on September 2, 1806, we are left in the position of being forced to accept at face value the jury's final decision, which was that Swinney had not been proved beyond reasonable doubt to have murdered George Wythe and that he was therefore ''not guilty''. Similarly, we must accept the opinion of Attorney General Nicholas that it would have been useless to try to prove beyond reasonable doubt that Swinney had murdered Michael Brown.

<div style="font-size: 85%;">
<sup>68</sup> [[Richmond Enquirer, 10 June 1806|Richmond ''Enquirer'', Jun. 10, 1806]].
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===Page 569===

<blockquote>
Nevertheless, we can record the fact that those jurymen are the only persons known to have expressed at any time in or since 1806 an opinion that Swinney was not a murderer. William Wirt had concluded that Swinney could conceivably be innocent of the charge, but Wirt left no record now extant that he actually believed Swinney to be the victim of an unjust accusation. The common impression throughout the summer of 1806 was that Swinney had committed two premeditated murders. That opinion has remained unchanged to this day.

George Wythe Swinney had escaped death by hanging. It remained to be seen whether or not he would become permanently branded a convicted forger. Within another twenty-four hours he received a tentative answer to this second question. On Thursday, September 3, 1806, he was adjudged guilty on two of the forgery indictments.<sup>69</sup> But these verdicts were not allowed to stand unquestioned. Within ten days William Wirt pleaded successfully, "in an eloquent and ingenious speech" addressed to Judges Prentis and Tyler of the District Court, for arrest of judgment. Wirt's objections were considered acceptable by the two judges and were referred to the next session of the General Court for approval or rejection.<sup>70</sup> Wirt had changed his mind since his assertion in June that Swinney would doubtless be convicted of the forgery charges.

Someone else had come earlier than Wirt to the conclusion that the laws of Virginia would not justify inflicting punishment on Swinney for having obtained certain things of value at the state's bank by using forged signatures. Indeed, former Governor Page had decided in June that what Swinney had done at the Bank of Virginia was a crime only against God, not against any law of the Commonwealth of Virginia. "As to this young Man's Forgeries," Page had commented in highly moralistic vein but with a practical twist, "when religion is out of the way, I can see nothing in our law, that could restrain him, or any one else from a free exercise of that lucrative Employment. But for a sense of religion, I myself could not have done a better act for the Benefit of my Wife & Children, than to have . . . died . .. consoled with the pleasing reflection that I had handsomely provided for my Family, in a way permitted, nay chalked out by our Laws." <sup>71</sup>

<div style="font-size: 85%;">
<sup>69</sup> [[Richmond Enquirer, 9 September 1806|''Ibid.'', Sept. 9, 1806]].

<sup>70</sup> Richmond ''Virginia Gazette, & General Advertiser'', Sept. 13, 1806.

<sup>71</sup> Page's letter continued: "I could, if under no religious impressions, tell my Wife & Children, that no one would think the worse of them for what I had done; and indeed that they would always be respected in proportion to their riches, and
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===Page 570===

<blockquote>
Could it be true, as Page thought he perceived, that Swinney had violated no law by his use of counterfeited signatures of George Wythe? Almost entirely so, declared the General Court in two quite technical opinions on November 17, 1806, with Judges [[wikipedia:Francis T. Brooke|Francis T. Brooke]], [[wikipedia:Paul Carrington (judge)|Paul Carrington, Jr.]], [[wikipedia:Hugh Holmes (Virginia politician)|Hugh Holmes]], [[wikipedia:Archibald Stuart|Archibald Stuart]], John Tyler, Sr., and [[wikipedia:Robert White (judge)| Robert White]] on the bench. They learned that the District Court's jury had convicted Swinney on an indictment for having obtained from the Bank of Virginia on May 27, 1806, a ''banknote'' for $100. In order to do so, he had presented to William Dandridge both a counterfeited letter and a forged check purporting to have been written and signed by Wythe. But the judges also heard that the arrest of judgment had been awarded on the ground that the forgeries of which Swinney had been accused did not actually constitute offences against a Virginia statute enacted in 1789, which was the only law the forgery indictments against him had contrived to mention.<sup>72</sup>

For one thing, William Wirt had argued that the 1789 law "was intended to punish a pre-existing evil" and could not possibly have reference to any bank, since no bank was established in Virginia until "many years" later. In the second place, Wirt contended that the law's phraseology, as well as its date, precluded any possibility of its being applied to the Bank of Virginia. The statute made illegal any deceitful deed, bill of sale, or other such document that would result in the robbery of one or more "private individuals." The bank could not properly be considered a

<div style="font-size: 85%;">
that both I and they would have been despised had I left them poor—that therefore the riches I had acquired for them would secure them respect in this World, and that as to any other, they need not trouble themselves about it—that they ought to enjoy their hearts desire in all things, and say 'let us eat & drink for tomorrow we die.' . . . But believing as I do in a divine revelation, I had rather perish with my Wife & Children through absolute Want, than that any one of us, should do one unjust or dishonest Act." John Page to St. George Tucker, Jun. 29, 1806, Tucker-Coleman Papers.

<sup>72</sup> The law that Swinney was alleged by the indictment to have broken had been adopted on Nov. 18, 1789. It was entitled "An act against those who counterfeit letters or privy tokens, to receive money or goods in other men's names." It provided that "if any person or persons, shall falsely and deceitfully obtain or get into his or their hands or possession, any money, goods or chattels of any other person or persons, by colour and means of any such false token or counterfeit letter, made in any other man's name as is aforesaid; every such person and persons so offending, and being thereof lawfully convicted in the court of the district, in which such offence shall have been committed," shall be subject to a maximum term of one year in prison and to "setting upon the pillory." Hening, ''Statutes'', XIII (Philadelphia, 1823), 22.
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===Page 571===

<blockquote>
"person or persons" within the meaning of the law. It was "a body corporate, an ideal body," and "no more a person, than the commonwealth of Virginia." Anything, therefore, that Swinney had obtained from the bank could not have been procured in violation of a law that made punishable the getting by false means of "any money, goods or chattels of any other person or persons." And in the third place, Wirt argued, what Swinney had received was not part of "the money or goods of the said George Wythe, because having been delivered under a check not drawn by him, the bank hath no right to charge it to his account."

In connection with the ''banknote'' in question under the first indictment, the General Court found Wirt's claims convincing enough. Its judges concluded that they should grant a permanent arrest of judgment. Thus they reversed the petit jury's verdict that Swinney was guilty; thus they pronounced him innocent of the crime alleged to have occurred on May 27. While Wythe lay on his deathbed that Tuesday, Swinney had perpetrated a forgery, but it was not an unlawful forgery.

The other indictment under which the District Court had found Swinney guilty of a violation of the same statute was quite similar to the first. The second differed in only one significant particular. It involved $50 that Swinney had obtained from the bank by the same means on April 11, 1806, in the form of ''currency''. Wirt's appeal in the District Court for an arrest of judgment had been won on the same three grounds, and they were pleaded anew as sufficient cause for making the temporary ban against sentence upon Swinney a permanent one.

In this instance the General Court did not agree. It refused to accept Wirt's argument that the "''money current''" Swinney had gotten at the bank in April could not properly be charged against the account of Wythe, by virtue of the forged check, and was therefore not Wythe's money until Swinney had acquired possession of it falsely. Evidently, Virginia's supreme tribunal for criminal law decided that neither of Wirt's first two points was valid in respect to either indictment and that the validity of Wirt's third contention depended entirely upon the natures of the two kinds of property the forger had received. In other words, the six judges' two decisions meant, essentially, that the promissory ''banknote'' Swinney obtained on May 27 had not been Wythe's "money, goods or chattels" but that the ''currency'' involved in the similar transaction of April 11 had been. If this distinction seems subtle, thin, and flimsy, it appears to have been not more so than whatever reasoning persuaded the judges to ignore
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===Page 572===

<blockquote>
Wirt's assertions that the 1789 law was not at all pertinent to the later means of "getting something for nothing" upon which an unconsciously clever forger had stumbled. The chagrined John Page, who had been Governor of Virginia when the state bank was established, had believed on June, 1806, that none of Swinney's forgeries was illegal. Page had been much disconcerted by his discovery that the commonwealth had not foreseen and had not prohibited such misuses of another's signature. The General Court, on the other hand, professed to believe that one of Swinney's forgeries had inadvertently violated a law more than fifteen years old and obviously designed to curb other frauds wrought by means if forgery. Consequently, the court decreed that punishment should be imposed upon Swinney under the second indictment by the District Court.<sup>73</sup>

Nevertheless, according to a report derived from official records that are not now extant, the District Court did not execute its sentence, which was that Swinney should spend one hour in the pillory at Richmond's public market and six months in prison. Contrary to the General Court's decree and for reasons inexplicable today, the District Court is said to have granted Swinney a second trial on the indictment the higher court had upheld, and then the attorney for the commonwealth declined to prosecute the case.<sup>74</sup>

Thus freed, technically at least, of all charges against him, but with a reputation he would never be able to live down locally, the "unfortunate" Swinney "then sought refuge in the West, where his career was brought to a premature and miserable close."<sup>75</sup> So reads one account, written about the middle of the nineteenth century, of the end of the life of

<div style="font-size: 85%;">
<sup>73</sup> William Brockenbrough and Hugh Holmes, ''[[Commonwealth against George Wythe Swinney|Collection of Cases Decided by the General Court of Virginia, Chiefly Relating to the Penal Laws of the Commonwealth, Commencing in the Year 1789 and Ending in 1814, Copied from the Records of Said Court, with Explanatory Notes]]'' (Philadelphia, 1815), 146-151.

<sup>74</sup> Minor, "[[Memoir of the Author]]," in Wythe, ''Decisions'', xxviii. In a footnote on that page Minor asserted: "The records of these proceedings [in the District Court after the return to it of the decree of the General Court in the last of tie suits of the Commonwealth v. Swinney] have been consulted in the office of tie Superior Court of Law for Henrico County." Minor wrote those words in or before 1852. Presumably, reorganizations of Virginia's judicial system between 1806 and 1852 account for the fact that records of the District Court in Richmond for its Apr., 1807, term (the first session it was scheduled to have after the Nov., 186, term of the General Court) had come by 1852 into the custody of the Superior Court of Law for Henrico County. The fire in Richmond during April 2-3, 1865, apparently explains their disappearance.

<sup>75</sup> ''Ibid''.
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===Page 573===

<blockquote>
the young man to whom George Wythe had been "kinder than a Father."<sup>76</sup> According to the memory of another Richmonder fifty years after George Wythe Swinney had been a defendant in the capital's courtrooms, Swinney went to Tennessee, stole a horse, served a term in a penitentiary, and was "then lost sight of."<sup>77</sup> The forgeries that preceded and led directly to the death of George Wythe may not have been plainly and provably crimes against the Commonwealth of Virginia. But they served one useful purpose, for they pointed out a glaring loophole in Virginia's laws. The state acted promptly to plug that gap. On the last day of the same year the General Assembly adopted and put into immediate effect "An ACT to punish certain thefts and forgeries." That law clearly defined as a crime every deed by which any person should "fraudulently obtain, or aid or assist in obtaining from the Bank of Virginia, or any of its offices of discount and deposit, any bank or post note, or money, by means of any forged or counterfeit check or order whatsoever, knowing the same to be forged or counterfeited." Violators of the new statute, when they were properly found guilty in court, were to be imprisoned for "not less than two, nor more than ten years."<sup>78</sup>

In the final analysis, we may guess, George Wythe Swinney escaped death on the gallows because of three considerations. One of these seems to be the forgiveness Wythe himself gave him. That could not alter one whit Swinney's legal liability to pay the penalty for murder, but it may have influenced, both consciously and unconsciously, the men who prosecuted and defended Swinney, those who testified, the judges who decided what evidence was admissible, and the twelve "good men and true" who retired to a jury room in the September trial. A second determining factor probably was the failure of the physicians to perform complete autopsies and thus to be prepared to assert unequivocally on the witness stand that, in their professional judgments, the deaths of Michael Brown and George Wythe had been caused by arsenic poisoning. Such testimony would have become, quite possibly, the "clincher" that would have strengthened the

<div style="font-size: 85%;">
<sup>76</sup> William DuVal to Thomas Jefferson, [[Jefferson-DuVal Correspondence#William DuVal to Thomas Jefferson.2C 4 June 1806|Jun. 4, 1806]], Jefferson Papers.

<sup>77</sup> Dove, "[[Memoranda Concerning the Death of Chancellor Wythe|Memoranda]]." Although Minor accepted Dr. Dove's recollections they are so untrustworthy in matters that can be checked that the unsubstantiated statements concerning Swinney's life after he escaped the clutches of the law in Richmond made by both Dove and Minor must be considered traditionary rather than supported by valid evidence.

<sup>78</sup> Shepherd, ''Statutes'', III, 289.
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===Page 574===

<blockquote>
web of circumstantial evidence against Swinney enough to put a knotted rope around his neck. A third presumed factor was inherent in Anglo-American jurisprudence. The doctors and other Virginians who participated as witnesses, attorneys, jurymen, and judges in Swinney's final trial for murder were honorable men. They cleared him of the accusation because, evidently, they thought it important to save the life of a young man who ''might'' be innocent, although he certainly seemed not to be. George Wythe himself would doubtless have had the same respect for the legal principle of a reasonable doubt.

Did Virginia justice suffer a miscarriage in 1806? For want of complete records, we cannot properly lift our second-guessing voices to cry that it went wrong. But we can agree heartily with the opinion held by Wythe himself and never relinquished by most of his sympathetic but straightforward contemporaries—the belief that, by every standard other than the technical ones of the law, Swinney had assuredly done serious wrongs. Like Wythe's survivors, we can only take comfort in the fact that Virginia justice may have avoided adding another wrong to Swinney's and in the fact that his chief victim, Chancellor Wythe himself, the "Virginia Socrates" and the "American Aristides," had achieved on his deathbed, by revoking his generous bequests to Swinney, one final act of obvious equity.
</blockquote>

==See also==

*[[Commonwealth against George Wythe Swinney]]
*[[Honest Lawyer]]
*[[Hustings Court Minutes]]
*[[Hustings Court Order Book]]
*[[Jefferson-DuVal Correspondence]]
*[[Life of William Wirt]]
*[[Memoir of the Author]]
*[[Memoranda Concerning the Death of Chancellor Wythe]]
*[[Murder of George Wythe]]
*[[National Intelligencer, 15 December 1806]]
*[[Richmond Enquirer, 8 July 1806]]
*[[Richmond Enquirer, 10 June 1806]]
*[[Richmond Enquirer, 9 September 1806]]
*[[Virginia Argus, 10 June 1806]]
*[[Virginia Argus, 17 June 1806]]
*[[Virginia Argus, 25 June 1806]]
*[[Virginia, June General Court, 1806]]

==References==
<references/>

==External links==

*[https://oieahc.wm.edu/ Omohundro Institute of Early American History and Culture]

[[Category:Biographies (Articles)]]
[[Category:Murder of George Wythe]]

Examinations of George Wythe Swinney for Forgery and Murder

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{{DISPLAYTITLE:"Examinations of George Wythe Swinney for Forgery and Murder: A Documentary Essay"}}
[[File:WilliamAndMaryQuarterlyOctober1955Wythe.jpg|thumb|right|400px|Engraved portrait [[George Wythe]] by [[Depictions of Wythe|J.B. Longacre]], from the ''William and Mary Quarterly,'' 3rd ser., 12, no. 4 (October 1955), 512.]]

Wythe scholar W. Edwin Hemphill contributed to a special issue of ''The William and Mary Quarterly'', dedicated to the murder of [[George Wythe]], in October, 1955. The issue was published in accordance with the Marshall-Wythe celebration at the [http://law.wm.edu/ College of William & Mary Law School] on September 25, 1954, for the bicentennial of [[John Marshall|John Marshall's]] birth. The journal pairs Hemphill's essay on "[[Media:HemphillExaminationsOfGeorgeWytheSwinneyOctober1955.pdf|Examinations of George Wythe Swinney for Forgery and Murder]],"<ref>W. Edwin Hemphill, "Examinations of George Wythe Swinney for Forgery and Murder: A Documentary Essay," ''William and Mary Quarterly'' 3rd ser., 12, no. 4 (October 1955), 543-574.</ref> with another by [[wikipedia:Julian P. Boyd|Julian P. Boyd]], "[[Murder of George Wythe]]."<ref>Julian P. Boyd, "[[Media:BoydMurderOfGeorgeWytheOctober1955.pdf|The Murder of George Wythe]]," ''William and Mary Quarterly'' 3rd ser., 12, no. 4 (October 1955), 513-542.</ref> Hemphill had rediscovered witness testimony given for [[Death of George Wythe#Sweeney's Trial|Sweeney's murder trial]] in 1806, and both authors made use of this new information.

Hemphill and Boyd's work was published as a pamphlet reprint the same year, under the title: [https://catalog.swem.wm.edu/law/Record/343766 ''The Murder of George Wythe: Two Essays''] (Williamsburg, VA: [https://oieahc.wm.edu/ Institute of Early American History and Culture,] 1955).

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==Article text, October 1955==
===Page 543===

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'''Examinations of George Wythe Swinney<br />for Forgery and Murder: A Documentary Essay'''<br />W. Edwin Hemphill*
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“I SHUDDER when I think of it." Thus wrote [[wikipedia:John Page (Virginia politician)|John Page]] three weeks after the death of [[George Wythe]] in Richmond on June 8, 1806.<sup>1</sup> Less than a year and a half had elapsed since a "numerous concourse" of Jeffersonian Republicans had gathered at the Washington Tavern in the capital on March 4, 1805, to celebrate the second inauguration of [[Thomas Jefferson]] as the President of the United States. On the joyous occasion of the party's victory banquet Governor Page had asked Judge Wythe to retire and had then proposed a volunteer toast to "George Wythe, distinguished alike for his wisdom and integrity as a magistrate, and his zeal and disinterestedness as a patriot." The tavern's hall had resounded with nine cheers—as many as were given in response to any prearranged or spontaneous toast, even that to the President himself.<sup>2</sup> Nine months later Page had retired from the governorship.

As he sat at his writing desk late in June, 1806, amid the peace and security of "Rosewell," his magnificent home in Gloucester County, John Page reflected upon the saddening, disheartening news he had heard during a recent trip to Richmond. [[William DuVal]], George Wythe's nearest neighbor, had told Page how their mutual friend had suffered and had died—and how very suspect certain circumstances preceding that death seemed. But nothing had yet been proved. So the circumspect Page scribbled to another friend an outburst that was more a sermon than a digest of the evidence. "I know only enough" about the "horrid tale," he remarked in his letter to St. George Tucker, one of Wythe's students and the judge who had succeeded Wythe in the chair of law in the College

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* Mr. Hemphill is Managing Editor of ''Virginia Cavalcade'' and a member of the staff of the Virginia State Library. These depositions were discovered by Mr. Hemphill and are now printed for the first time in this issue of the ''Quarterly''.

<sup>1</sup> John Page to [[St. George Tucker]], Jun. 29, 1806, Tucker-Coleman Papers, Colonial Williamsburg.

<sup>2</sup> Richmond ''Enquirer'', Mar. 8, 1805.
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[[File:BoydHemphillMurderOfGeorgeWytheTwoEssays1955.jpg|thumb|right|400px|Title page from Boyd and [[Examinations of George Wythe Swinney for Forgery and Murder|Hemphill's]] pamphlet reprint, [https://catalog.swem.wm.edu/law/Record/343766 ''The Murder of George Wythe: Two Essays''] (Williamsburg, VA: Institute of Early American History and Culture, 1955).]]
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of William and Mary, "to shock my Soul." But the former Governor could not forbear comment along other lines. The murder of Chancellor Wythe, he exclaimed, made him "feel for humanity—and the wounded honor of my Country!"<sup>3</sup>

[[wikipedia:William H. Cabell|Governor William H. Cabell]], Page's successor, was also distressed. He reminded one of his sisters-in-law of their experience when they had visited a Miss Nelson, who had then been living in the modest Richmond home of her uncle, the widowered, scholarly Chancellor. "She and all of us were almost children, and few grown men would have found any interest in staying in the room where we were. But the good old gentleman brought forth his philosophical apparatus and amused us by exhibiting experiments, which we did not well comprehend, it is true, but he tried to make us do so, and we felt elevated by such attentions from so great a man."<sup>4</sup>

The up-and-coming [[wikipedia:William Wirt (Attorney General)|William Wirt]], who had served for a year in a judicial office coordinate with that of the victim,<sup>5</sup> wrote from Norfolk to [[wikipedia:James Monroe|James Monroe]], who was abroad, in indignant terms about the "dose of arsenick administered" to "poor old Chancellor Wythe."<sup>6</sup> Five weeks later Wirt could assure his absent wife, "I dare say you have heard me say that I hoped no one would undertake the defence of [the accused, George Wythe] Swinney, but that he would be left to the fate which he seemed so justly to merit."<sup>7</sup>

The editor of a Richmond newspaper was upset enough to describe his news announcement of the death as a "painful task."<sup>8</sup> An editor in Raleigh, North Carolina, was told "by a gentleman lately from Rich-

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<sup>3</sup> John Page to St. George Tucker, Jun. 29, 1806, Tucker-Coleman Papers.

<sup>4</sup> William H. Cabell to Mrs. William Wirt (undated), quoted in John Pendleton Kennedy, ''[[Life of William Wirt#Page 151|Memoirs of the Life of William Wirt, Attorney General of the United States]]'' (Philadelphia, 1849), I, 151-152. Hereafter cited as Kennedy, ''William Wirt''.

<sup>5</sup> Ambitious for wealth, Wirt found his position as judge of the Superior Court of Chancery for the Eastern District irksome, its salary barely adequate in view of his second marriage, which took place in September, 1802. It "is possible," he observed wryly, "that I may, like Mr. Wythe, grow old in judicial honors and Roman poverty. I may die beloved, reverenced almost to canonization by my country, and my wife and children, as they beg for bread, may have to boast that they were mine." [[Life of William Wirt|William Wirt to Dabney Carr]], Feb. 13, 1803, ''ibid.'', 95. In May, 1803, Wirt returned to the practice of law as an attorney, with his residence and headquarters in Norfolk. ''Ibid.'', 87-101.

<sup>6</sup> William Wirt to James Monroe, Jun. 10, 1806, Monroe Papers, vol. XI, no. 1373, Library of Congress.

<sup>7</sup> William Wirt to Elizabeth Gamble Wirt, Jul. 13, 1806, Kennedy, ''[[Life of William Wirt#Page 152|William Wirt]]'', 1, 152-153.

<sup>8</sup> [[Virginia Argus, 10 June 1806|Richmond ''Virginia Argus'', Jun. 10, 1806]].
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mond" about the crime and was thus enabled to "scoop" the world by publishing the first printed details, albeit inaccurate ones, of the "circumstances of this horrid transaction."<sup>9</sup> Newspapers as far away as Boston recorded its effect.<sup>10</sup> Richmond's press devoted an apparently unprecedented amount of space to the modest, touching, but reserved funeral oration by [[William Munford]]<sup>11</sup> and to laudatory tributes received as anonymous communications to the editors; the total aggregated what seems to have been more column inches of eulogy than had been elicited in Virginia newspapers by the death of George Washington or by that of any other person.<sup>12</sup>

Washington's imaginative, opportunistic biographer, Mason Locke Weems, seized upon news that had "quite galvanized" the "very young and tender hearted" in Charleston, South Carolina, as excuse enough for a discursive essay. That itinerant book-peddler described himself as "getting now to be a little oldish . . . , and daily, as becomes a stranger in Charleston, at this season, looking out for a squall of the same sort." Weems viewed with equanimity the fact that "death, by a touch of his old thresher, with equal ease, brings down a Chancellor or a cherry." He professed no grief over the death of the Virginian he portrayed as "[[Honest Lawyer|The Honest Lawyer]]." On the contrary, the effusive "Parson" enjoined joy "that this veteran of the law, after a life of glorious toil, to revive the golden age of justice on earth, was returned to the high courts of heaven-not

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<sup>9</sup> Raleigh, N. C., ''Minerva'', Jun. 16, 1806.

<sup>10</sup> Boston, Mass., ''Gazette'', Jun. 19, 1806, and ''Columbian Centinel'', Jun. 21, 1806.

<sup>11</sup> After the death of Wythe's second wife in 1787, William Munford (1775-1825) had lived in Wythe's home in Williamsburg and had been a special object of Wythe's generous attentions to youth. Grateful, Munford named his oldest child George Wythe Munford "after my old friend and benefactor the Chancellor." William Munford to his sister-in-law, Mrs. Mary R. Preston, Jan. 10, 1803, Munford- Ellis Papers, Duke University Library. Munford, his heart "torn with sorrow," then accepted the Council of State's assignment to preach the funeral oration, partly because "the ties of gratitude to that best of men, for the extraordinary kindness he ever manifested towards me, ought to prohibit my suffering him to go to his grave without an Eulogy." William Munford to Governor William H. Cabell, Jun. 8, 1806, Executive Papers, Virginia State Library. The funeral oration by Munford was printed in its entirety by two Richmond newspapers: Richmond ''Enquirer'', Jun. 13 and 17, 1806; Richmond ''Virginia Argus'', Jun. 17, 1806.

<sup>12</sup> See issues of the ''Enquirer'', the ''Impartial Observer'', the ''Virginia Argus'', and the ''Virginia Gazette, & General Advertiser'' during the first three or four weeks after Jun. 8, 1806. The author's comparison is based upon impressions rather than upon actual counts of the space allotted by Richmond editors to obituaries, eulogies, etc., for Wythe and for such other distinguished citizens as George Washington, who had died in 1799, and Edmund Pendleton, who had died in 1803.
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pale and trembling . . . , wet with widows' tears, and blood of murdered patriots, to meet the tear-avenging God; but bright in conscious integrity, with hands pure as the sweet palms which press the alabaster bottles of life, and in robes of innocence, snow-white as those that angels wear, to meet the smiles of the Judge Supreme, and the acclamations of brother saints innumerable."'<sup>13</sup>

Celebrants of the Fourth of July in 1806 drank toasts to the memory of George Wythe.<sup>14</sup> Restricted to severe brevity by that social form of tribute, those who gathered for the Fourth at Lexington, Kentucky, remembered Wythe simply as "a faithful labourer in the vineyard of the republic."<sup>15</sup> There the orator of the day was Henry Clay, who until his own death remained proud of the fact that he had been associated with Wythe's court during the 1790's. Indeed, young Clay had been the amanuensis who transcribed for publication the Chancellor's annotated decisions, confusingly peppered though they were with Greek phrases Clay had been able neither to understand nor to write well.<sup>16</sup> Saddened by the news that had plunged Richmond into mourning (news that had just reached Lexington), Clay made his address "short and impressive."<sup>17</sup>

The sense of revulsion felt throughout the country crossed party lines as well as state lines. A Federalist organ in the nation's largest city copied from the Richmond ''Enquirer'' two paragraphs of Republican editor Thomas Ritchie's shocked obituary. To those paragraphs it appended the Petersburg, Virginia, ''Republican's'' pointed comment: "It is generally believed, that this patriot, has been brought to the grave, by means, the 'most foul, base and unnatural,' and that the accused is to undergo an examination."<sup>18</sup> Even a modern interpreter of the Old Dominion cites the felony as the worst example of the cussedness—or something worse—

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<sup>13</sup> M. L. Weems, "[[Honest Lawyer|The Honest Lawyer: An Anecdote]]," Charleston, S. C., ''Times'', Jul. 1, 1806.

<sup>14</sup> [[Richmond Enquirer, 8 July 1806|Richmond ''Enquirer'', Jul. 8, 1806]].

<sup>15</sup> Lexington ''Kentucky Gazette'', Jul. 5, 1806.

<sup>16</sup> Henry Clay to B. B. Minor, May 3, 1851, printed in Benjamin Blake Minor, '[[Memoir of the Author]]," in George Wythe, ''Decisions of Cases in Virginia, by the High Court of Chancery, with Remarks upon Decrees, by the Court of Appeals, Reversing Some of Those Decisions'' (2d ed., B. B. Minor, ed., xxxii-xxxvi. Richmond, 1852), Hereafter cited as Wythe, ''Decisions''.

<sup>17</sup> Bernard Mayo, ''Henry Clay, Spokesman of the New West'' (Boston, 1937), 208-209.

<sup>18</sup> Philadelphia, Pa., ''Poulson's American Daily Advertiser'', Jun. 17, 1806. This newspaper attributed the remark to the Petersburg ''Republican'' of an unspecified date.
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that she attributes to Virginians.<sup>19</sup> The murder of George Wythe took at the time top or high rank among the state's most heinous crimes. It still does.

Inevitably, the revolting affair created quite a stir, for people ''will'' talk. Throughout the week before the prostrated Wythe's last breath set the bells of Richmond a-tolling, his death was a foregone conclusion. People marveled that a man of his age could so long survive the excruciating agonies of so insidious and lethal a poison. While Wythe still suffered, strong suspicion was aroused. Circumstances and tangible evidence converted suspicion into conviction at least seven days before the poison produced its ultimate effect upon the Chancellor's strong constitution.

The suspect was as undoubted as was the conclusion that Wythe was a victim of premeditated murder by means of arsenic. Invariably the slayer was identified as the venerable patriot's teen-aged grandnephew and namesake, George Wythe Swinney, an ingrate who had already proved himself unworthy of the home and education he had enjoyed for several years under the hip roof of the Chancellor's unpretentious cottage. Had not that young reprobate stolen books and money from his too-trusting benefactor? Had he not forged checks against his patron's bank account? And had it not been generally known, doubtless by Swinney himself, that he was the chief heir to Wythe's estate, a modest one but doubtless large enough to provide some relief to a culprit in financial difficulties? So, people said, he had placed his fatal dose in the breakfast coffee served in the unsuspecting household on Sunday morning, May 25. Immediately after that meal the good old judge and two freed Negroes had become critically ill. Lydia Broadnax, the Chancellor's faithful cook and servant, recovered. Michael Brown, the mulatto lad to whom Wythe had personally been giving a classical education—Greek and all—as a practical experiment in testing and developing the intelligence of Virginia's other race, had died on the next Sunday, June 1. The Chancellor himself lived in torment—and perhaps toward the end in a merciful coma—through a second week, but he died on the second Sunday morning, June 8. Fortunately, however, he did not expire before he had altered his will to disinherit the villainous Swinney.

Such is the traditional account of the death of Wythe—a paraphrase expanded to greater length than any known to have been written within the next two weeks, doubtless shorter than many conversational versions

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<sup>19</sup> Virginia Moore, ''Virginia Is a State of Mind'' (New York, 1943), 190-191.
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of the time, and certainly embodying the contemporary explanations of the timing, the method, and the motive of the murderer of Michael Brown and George Wythe.<sup>20</sup> This story of the baneful circumstances has persisted ever since 1806. In its retellings it has undergone normal embellishments and amendments. Developments not fully understood when they occurred gave the tale a poor foundation at the start. The recollections of its original narrators grew more and more subject to error with the passing years. Family traditions, transmitted orally, added details and supplied conversations that seem more logical than they are trustworthy. Fanciful emphases and interpretations have been born of assumptions, not of research.

The only substantial modification, however, has been a pronounced tendency to portray the poisoning of Wythe as an accident, while that of Michael Brown has remained the result of intentional murder. This alteration cannot be traced backward beyond 1850. It stems from two sources that were not independent of each other. One was the quite faulty memory of Dr. John Dove of Richmond, who claimed in 1856 that he had been "[[Memoranda Concerning the Death of Chancellor Wythe|present during the sickness & death of Judge Wythe]]." Dove alleged that the Chancellor had been ill before May 25, 1806, and that Swinney had not expected him to eat breakfast that Sunday morning where the poisoned coffee was to be served. The other source was Benjamin Blake Minor, editor of the ''Southern Literary Messenger'', who contributed a biographical sketch to the second edition of the Chancellor's ''Decisions'' (1852). Minor talked with Dr. Dove, who undoubtedly told him something to the effect that Swinney had "vowed vengeance" only against the mulatto boy; and

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<sup>20</sup> Evidently the earliest summaries of the circumstances now extant are in the reliable letters written by William DuVal to Thomas Jefferson on [[Jefferson-DuVal Correspondence#William DuVal to Thomas Jefferson.2C 4 June 1806|Jun. 4 and 8]], preserved in the Jefferson Papers, Library of Congress. Neither attributes to the poisonings a plain method or motive. The earliest written statement as to motivation and method is apparently to be found in the letter of Jun. 10, 1806, from William Wirt in Norfolk to James Monroe, Monroe Papers, vol. XI, no. 1373. That letter was written before Wirt had learned of Wythe's death. Internal evidence in Wirt's letter indicates that the allegations it relayed were based exclusively on information written on Jun. 5, in a letter that has not been found, by Governor William H. Cabell, his brother-in-law. A later account is in the brief, less specific recollection recorded by Littleton Waller Tazewell, who wrote that "it was generally believed" that Wythe's death "was produced by poison, administered in his coffee, by a reprobate boy, a relation of his who he had undertaken to educate, and who was afterwards convicted of having committed many forgeries of checks in his patrons name." "Sketches of his own family, written by Littleton Waller Tazewell, for the use of his children. Norfolk. Virginia. 1823" (MS. in the Virginia State Library), 121.
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Minor found what seemed to him to be sufficient substantiation in Wythe's will and two of its codicils, which made Swinney the residuary legatee of bequests to Michael Brown.<sup>21</sup> Until now the only serious analysis of the traditional account of Wythe's death and of the Dove-Minor misinterpretation has been that of Julian P. Boyd. His lucidly reasoned booklet on ''[[Murder of George Wythe|The Murder of George Wythe]]'' assayed them chiefly by the test of comparison with information found in seven previously unexploited letters written in 1806 to President Jefferson by Wythe's intimate friend and executor, William DuVal.<sup>22</sup>

But other and even better contemporary records are also extant, and it is good that the ''William and Mary Quarterly'' affords space in this issue both for them and Dr. Boyd's thoughtful interpretation, now relatively unavailable. Chief among these additional documents are official court records of the preliminary trials of George Wythe Swinney for forgery and murder. Like pirates' gold buried in a forgotten pit, they lay neglected through more than a century and a quarter despite recurrent curiosity about Wythe's tragic death. These legal records, discovered by the present writer a number of years ago and now published for the first time, contain precious nuggets of authentic information. They include digests of the sworn testimony of sixteen witnesses for the prosecution against Swinney. They add up to a convincing indictment of him. The discovery was made in the office of the Clerk of the Hustings Court of the City of Richmond,<sup>23</sup> where the documents lay within the

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<sup>21</sup> Both of the phrases quoted above are from Dr. Dove's recorded recollections, which are replete with provable errors and must be considered wholly suspect. "[[Memoranda Concerning the Death of Chancellor Wythe|Memoranda concerning the death of Chancellor Wythe]]—Signed in the Aut[o]-g[rap]h. of T[homas]. H. Wynne and rec'd by him from Dr. John Dove, Sept. 16, 1856," MS. in the Brock Collection, Henry E. Huntington Library and Art Gallery. Hereafter cited as Dove, "Memoranda." For evidence that John Dove, M.D., was a Richmond practitioner from about 1822 to about 1852, see Wyndham B. Blanton, ''Medicine in Virginia in the Nineteenth Century'' (Richmond, 1933), 48, 76, 91, 238, 240. For evidence that Dove influenced Minor directly, see Minor, "[[Memoir of the Author]]," in Wythe, ''Decisions'', xxvii.

<sup>22</sup> Julian P. Boyd, ''[[Murder of George Wythe|The Murder of George Wythe]]'' (Philadelphia, 1949).

<sup>23</sup> Binder's title "[[Hustings Court Order Book|Order Book No. 6, 1804-1806]]," 464-465, 482-488. Rough drafts of the records for these two cases of the Commonwealth v. Swinney—drafts identical to the final ones in every important respect—can be found in the same office in the volume given the binder's title of "[[Hustings Court Minutes|Minutes No. 3, 1802-1806]]" (MS. with pages not numbered) under dates of Jun. 2 and 23, 1806, respectively. Microfilm copies of both the Minute Book and the Order Book are available in the Virginia State Library. The final drafts of the two documents have been transcribed from the Order Book for publication below.
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domain of the very court to which the laws of Virginia prevailing in 1806 required that such an offender in Richmond as Swinney should be brought first for any trial of which an official record would have been kept. When Richmond had been incorporated in 1782, it was made a unit of local government. The General Assembly had provided by law for the annual election of twelve citizens to serve in their spare time as municipal officials. Half of them were to constitute a legislative Common Council. The remaining six—a mayor, a recorder, and four aldermen—were commanded "to hold a court of hustings" each month. Its jurisdiction in Richmond corresponded to that of a county court within county boundaries. Each of the judges of the Hustings Court had been vested with the powers of a justice of the peace, and they had been specifically assigned the duty "of examining criminals for all offences committed within the limits of the said corporation." If they found a defendant guilty of a serious crime, they were to refer him to a higher court for trial before professional judges and a jury.<sup>24</sup> These governmental and legal arrangements for the preservation of law and order had been modified only slightly in later statutes, but a law of 1803 had increased the membership of the Common Council to fifteen and that of the Hustings Court to nine, doubtless in recognition of Richmond's growth to a population of more than five thousand.<sup>25</sup> We shall find that not all of our questions are answered by these documents, but no searcher for the treasure-trove could reasonably have expected it to be so rich. Yet it multiplies by many times the amount of contemporary data at our disposal. It enables us to confirm some details reported unofficially at the time and to correct others. It supplies us with vivid portraits of a gloomy, wicked, and yet remorseful youth; of the last days of a questioning, then convinced, and ultimately forgiving victim; of the anxious solicitude and growing outrage of the latter's friends; and of their transition from innocent acceptance of his serious illness as a natural thing to mounting suspicion, relatively thorough investigation, and distressing proof of the poisoner's guilt. Coupled with our greater knowledge of toxicology and with other contemporary records not utilized

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<sup>24</sup> William Waller Hening, compiler, ''The Statutes at Large ... of Virginia . . .'' (Richmond, Philadelphia, New York, 1819-1823,) XI (Richmond, 1823), 45-51. Hereafter cited as Hening, ''Statutes''.

<sup>25</sup> ''Ibid.'', XII (Richmond, 1823), 407-408; Samuel Shepherd, compiler, ''The Statutes at Large of Virginia,. . . 1792, to . . . 1806 . . .'' (Richmond, 1835-1836), II, 93, 422-425, III, 73-75. Hereafter cited as Shepherd, ''Statutes''.
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by previous investigators, it affords us a surer understanding of the grim story of the unpunished forgeries and murders committed by George Wythe Swinney than was vouchsafed to any of the people who mourned the death of Chancellor Wythe and sought with decreasing fervor to do justice to the cause of it—a more reliable understanding, indeed, than any of our predecessors attained.

The official record of the examination of Swinney for alleged forgery reads as follows:

At a Court of Hustings called and held for the City of Richmond at the Courthouse, on Monday, the second day of June 1806, for the examination of George W. Swinney,<sup>26</sup> who stands accused of forgery.<sup>27</sup>

Present

Edward Carrington, Gentleman, Mayor,

Samuel Pleasants, Gentleman, Recorder,

Henry S. Shore, William Goodwin, Anderson Barret,

David Lambert and William Richardson, Gentlemen, Aldermen.

The prisoner was led to the bar in custody of the Sergeant of this City; whereupon sundry witnesses were sworn and examined, and the prisoner in his defence fully heard: On consideration whereof, the Court is of opinion that the prisoner is guilty of the offence aforesaid, and doth order that he undergo a trial therefor at the next District Court directed by law to be holden at the Capitol in this City: and it is further ordered that the said George W. Swinney be bound in a recognizance in the penalty of one thousand dollars, with suf-

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<sup>26</sup> George Wythe Swinney, whose surname occurs in contemporary records also in the form of various spellings of Sweeney, was a grandson of George Wythe's sister and hence a grandnephew of Wythe. For genealogical information concerning him and related Sweeneys see W. Edwin Hemphill, George Wythe the Colonial Briton: A Biographical Study of the Pre-Revolutionary Era (Doctoral Dissertation, University of Virginia, 1937), 40.

<sup>27</sup> Swinney had doubtless been accused of forgery as the result of a preliminary hearing before one or more of the municipal magistrates or justices of the peace, presumably within the last five days of the preceding week, May 27-31, as is indicated by the testimony of the first witness below. William Wirt enumerated a few other manifestations of dishonesty on Swinney's part that had been preludes to his climactic crime: "The young villain (only about 16 or 17) had been in the habit of robbing his uncle [i.e., his granduncle, George Wythe] with a false-key, had sold three trunks of his most valuable law-books, had forged his checks on the bank to a considerable amount, & wound up his villainies by this act [of murder]." William Wirt to James Monroe, Jun. 10, 1806, Monroe Papers, vol. XI, no. 1373.
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ficient security in a like penalty, for his personal appearance before the Judges of the said district Court, on the first day of the next term thereof, to answer the Commonwealth of the offence aforesaid; and failing to give the security required, he is remanded to jail until he shall give such security, or shall be otherwise discharged by the course of law.

William Dandridge (Teller of the Bank of Virginia) a witness on the foregoing examination, being sworn, deposeth and saith: That on Tuesday last [May 27], the prisoner produced to him at the bank of Virginia, a check thereon for the sum of one hundred dollars, drawn in the name of George Wythe esquire, which the deponent paid. That some time after, on examining the check, he suspected it to be a forged one, and he thereupon went to the prisoner and stated that he believed there was a mistake in said check; That the prisoner immediately produced the money and delivered the same to the deponent. That the prisoner frequently presented checks at the bank in the name of the said George Wythe; and the deponent verily believes that six checks now produced in Court were presented by the prisoner, and are all counterfeited.

Peter Tinsley,<sup>28</sup> another witness sworn on the said examination deposeth and saith: That he carried to George Wythe esquire seven checks drawn in his name on the bank of Virginia, who denied having drawn or signed more than one of them.

William Dandridge and Peter Tinsley here in Court acknowledge themselves indebted to his Excellency William H. Cabell governor or chief magistrate of the Commonwealth of Virginia, in the sum of one hundred pounds each, of their respective goods and chattels, lands and tenements, to be levied, and to the said governor and his successors, for the use of the said Common-wealth rendered: Yet upon this Condition, that if the said William Dandridge and Peter Tinsley shall severally make their personal appearance before the Judges of the District Court directed by law to be holden at the Capitol in this City, on the first day of the next term thereof, to give evidence on behalf of the Commonwealth against George W. Swinney, who stands accused of forgery, and shall not depart thence without the leave of the said Court, then this recognizance is to be void.<center>
(Minutes signed) E: Carrington Mayor<sup>29</sup>
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<sup>28</sup> Tinsley was for many years Clerk of the High Court of Chancery.

<sup>29</sup> One item of corrective evidence is brought out in this record. Unofficial reports of 1806, whenever they stated or implied a chronology for Swinney's crimes, invariably indicated that his forgeries and the discovery of them preceded his poisoning of Judge Wythe. On the contrary, Dandridge testified that Swinney was sus-
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The official record of the examination of Swinney on the charge of murder is a remarkably detailed one. Its unusual length doubtless reflects a common impression of the uncommon nature and circumstances of the alleged crime. The record reveals utter desperation on the part of an al-most deranged Swinney. It portrays the mounting growth of suspicion during illnesses that might have been provoked by merely natural causes. It embodies observations that link Swinney conclusively with ratsbane (white arsenic) and yellow arsenic. It records medical symptoms and measures that are not nice but seem necessary. And it indicates reserve on the part of three physicians when they gave under oath their professional judgments whether or not the death of George Wythe could be attributed to arsenic poisoning. This record is as follows:

At a Court of Hustings called and held for the City of Richmond at the Courthouse, on Monday, the 23d. day of June 1806, for the examination of George W. Swinney, who stands accused of murder.<sup>30</sup>
Present

The Same Justices as above.<sup>31</sup>

The prisoner was led to the bar in custody of the Sergeant of this City; where-upon sundry witnesses were sworn and examined, and the prisoner in his

<div style="font-size: 85%;">
pected for the first time of his forgeries after he had presented a sixth forged check at the bank on Tuesday, May 27. That Tuesday will be found to have been two or three days after Swinney had poisoned Wythe. On that Tuesday the Chancellor lay abed in the early stages of his mortal illness. That is one reason—and his charitable, compassionate nature may be another—for the fact that Wythe himself did not testify in court which of the seven checks "carried" to him by Tinsley he had not signed personally. Further details about the six forgeries will be revealed later in this article.

<sup>30</sup> The accusation against Swinney for the alleged murders of "Wythe & Michael Brown the Freed Boy" had resulted, in keeping with Virginia law, from a hearing held on Jun. 18 before Mayor Edward Carrington and two other magistrates or aldermen. On that occasion the examination of witnesses "lasted near Five Hours." The mayor and his two colleagues "were of Opinion that they, Mr. Wythe & Michael, were poisoned by Geo. W Sweeney." The suspect was ordered to be held in jail to await trial by the Hustings Court as a "Court of Examination" on Jun. 23. William DuVal to Thomas Jefferson, [[Jefferson-DuVal Correspondence#William DuVal to Thomas Jefferson.2C 19 June 1806|Jun. 19, 1806]], Jefferson Papers. Cf. Shepherd, ''Statutes'', III, 73-75.

<sup>31</sup> That is to say, the same six who had been present for the trials of earlier cases on Jun. 23: Mayor Edward Carrington, Recorder Samuel Pleasants, Jr., and Aldermen Henry S. Shore, Anderson Barret, David Lambert, and William Richardson. Aldermen William DuVal, William Goodwin, and Thomas Underwood did not sit as judges for this examination. DuVal attended as a witness.
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===Page 554===

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defence fully heard: On consideration whereof, the Court is of opinion that the prisoner is guilty of the offence aforesaid, and doth order that he undergo a trial therefor before the next District Court directed by law to be holden at the Capitol in this City: and thereupon the said George W. Swinney is remanded to jail.<sup>32</sup>

Tarlton Webb,<sup>33</sup> a witness for the Commonwealth on this examination, being sworn, deposeth and saith: That about a fortnight or three weeks be-fore the prisoner was committed to jail, he enquired of the deponent where he could procure any ratsbane? The deponent replied that it was against the law of the United States to have it. The day before the prisoner was apprehended,<sup>34</sup> he came to the house of the deponent's mother, and shewed the depon[en]t something wrapped in paper, which he said was Ratsbane, and in-formed the deponent that he intended to kill himself, and offered to give the deponent some if he wanted to die. The deponent being shown some drugs found in the jail and produced in Court by Mr. [William] Rose,<sup>35</sup> deposes that what the prisoner showed him was like that in Mr. Rose's possession, and that there was about one table spoonful. The prisoner stated to the deponent that he was very unhappy and something pressed upon his mind; but though applied to, would not disclose the cause of his uneasiness to the deponent.

William Rose,<sup>36</sup> another witness sworn on this examination, deposeth and

<div style="font-size: 85%;">
<sup>32</sup> The [[Virginia, June General Court, 1806|Richmond ''Enquirer'', Jun. 24, 1806]], printed the following announcement of the decision: "George W. Swinney was yesterday called before the examining court of this city, on the charge of poisoning his great Uncle, the venerable George Wythe, and a servant boy. He was unanimously remanded to jail for further trial before the district court to be had in September next." Although it was not particularly customary for crime news, especially courtroom news of this tentative sort, to be widely reprinted, this item reappeared in such representative newspapers as the Richmond [[Virginia Argus, 25 June 1806|''Virginia Argus'', Jun. 25, 1806]]; the Alexandria ''Virginia Gazette, & General Advertiser'', Jun. 25, 1806; the Washington, D. C., ''National Intelligencer, and Washington Advertiser'', Jun. 30, 1806, and ''Universal Gazette'', Jul. 3, 1806; the Augusta, Ga., ''Chronicle'', Jul. 12, 1806; and the Savannah, Ga., ''Columbian Museum & Savannah Advertiser'', Jul. 12, 1806, and ''Georgia Republican'', Jul. 15, 1806.

<sup>33</sup> This witness has not been identified positively. His testimony suggests that he was probably a youthful friend of Swinney.

<sup>34</sup> Swinney was arrested on Wednesday, May 28, or Thursday, May 29, according to testimony given in this examination by witness William DuVal, reproduced below. Webb's testimony here to the effect that Swinney told him on May 27 or May 28 that "something pressed upon his [Swinney's] mind" can be, therefore, a veiled reference by Swinney himself to worry and remorse because of the way he had used poison, with results that had not yet proved fatal, and possibly also because of the forgery committed and detected on Tuesday, May 27.

<sup>35</sup> For an identification of William Rose see the next paragraph and footnote 36.

<sup>36</sup> Rose was the public jailor of Richmond. Richmond ''Enquirer'', Jul. 8, 1817. Rose's
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===Page 555===

<blockquote>
saith: That his servant girl Pleasant, went into the garden about twelve o'clock the day after the prisoner was committed to jail and brought the paper this day produced [in court], the contents of which the deponent immediately knew to be arsenic. When the prisoner was committed to jail, the deponent did not search him; but about an hour and a half after, or thereabouts, hearing that it was probable he had pistols, he went into the jail and felt his pocket, and felt that there was a heavy substance wrapped in paper; but supposing that it might be coppers, or some few eighteen penny pieces, he did not take it out of his pocket. The prisoner had the use of the debtors room and the jail yard at his option. As soon [as] the arsenic was found the deponent suspected that Mr. Wythe was poisoned.

Samuel McCraw,<sup>37</sup> another witness sworn on the said examination, deposeth and saith; That being informed by Mr. Rose, that arsenic had been found in his garden, he proposed to have the servant carried into the garden to see the place where [the arsenic had been] found, to ascertain whether it was deposited there, or thrown from the jail yard. That at the place where the servant stated the arsenic to have been found, the deponent found two papers lying about eighteen inches apart: That the crude arsenic had penetrated a little into the earth, and there were two plants one a fennel, the other a beat [''sic''], broken off as he supposed by the throwing the arsenic over the jail wall: The deponent thinks it must have come from the jail yard. The beat [''sic''] that was wounded was next [i.e., nearer] the jail wall and was wounded considerably farther from the ground than the fennel. On the first of June, one week after Mr. Wythe's attack [began], the deponent was re-quested to go to attest [the final codicil to] Mr. Wythe's will. Mr. Wythe re-quested the prisoner's room and trunk to be searched. The deponent, with others, was conducted to the room where the prisoner lodged, opened the chest and found a port folio with a quire of blotting paper, which the deponent believes to be of the same kind with what was found wrapped round the arsenic found in the garden. In the prisoner's room on a writing table, the deponent found a paper on which were a half a dozen strawberries with the appearance of arsenic having been sprinkled over them. He found a phial with an appearance of having had a liquid, some of which adhered to the side of the phial, and on examination was believed to have been a mixture of testimony and that of the next witness make it plain that the former's residence and garden adjoined the jail.

<div style="font-size: 85%;">
testimony and that of the next witness make it plain that the former's residence and garden adjoined the jail.

<sup>37</sup> McCraw was one of the four witnesses who signed the final codicil to Wythe's will. Minor, "[[Memoir of the Author]]," in Wythe, ''Decisions'', xxxviii-xxxix.
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===Page 556===

<blockquote>
arsenic and sulphur. He also found two pieces of coarse brown paper, with something adhering to each, which was also declared to be arsenic and sulphur. The deponent frequently visited Mr. Wythe in his last illness and he appeared to be in very great agony from the first time to his death. Some time before the death of Mr. Wythe, while this deponent was sitting by him, Mr. Wythe exclaimed, cut me—the deponent supposed he wanted to have his flannel cut loose which the deponent accordingly did, but which gave apparent displeasure to Mr. Wythe, who then putting his hand to his throat and heart again called out, cut me, but could make no further explanation: this induced a belief in the deponent and those present that it was his wish to be opened after his death. The deponent never did hear Mr. Wythe express any suspicion of having been poisoned.

Fleming Russell<sup>38</sup> another witness sworn on the said examination deposeth and saith; That the day he received the warrant [for the arrest of Swinney] he went to Mr. Wythe's and found the prisoner: when he showed the prisoner the warrant and carried him to Major DuVal's & discovered he had no pistols, took his knife from him, and put his hand in his coat pocket, he felt very distinctly that he had two separate parcels of something wraped up in paper in his pocket but made no further search. After the prisoner was committed to jail, the deponent informed Mr. Rose, that the prisoner had some-thing else in his coat pocket and advised him to make a search, but did not go with Mr. Rose to make it.

Taylor Williams<sup>39</sup> a witness sworn on the said examination deposeth and saith; That about three weeks before the prisoner was apprehended, he mentioned something to the deponent about poison. The deponent informed him that copperas [i.e., crystallized ferrous sulphate] and water was poison. In about six or seven days after, the prisoner began a conversation with the deponent about poison: the deponent then told him ratsbane was poison, and that a gentleman of his acquaintance used it for the purpose of killing rats, and that [it] was to be bought in the shops, but does not recollect with certainty whether the prisoner asked him where it might be had.

Major William DuVal<sup>40</sup> another witness sworn on said examination de-

<div style="font-size: 85%;">
<sup>38</sup> This witness has not been identified. Judging from his testimony, he must have been a Richmond police officer.

<sup>39</sup> Williams appears from his testimony to have been a young friend of Swinney.

<sup>40</sup> William DuVal was of Huguenot descent, an officer during the Revolutionary War, an attorney, a member of the Virginia General Assembly, a magistrate of Richmond who had served as mayor during 1805-1806, and an intimate friend of Wythe, whose residence was also located in the square bounded by Grace, Sixth, Franklin,
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===Page 557===

<blockquote>
poseth and saith; that on the 25th day of May, he went to see Mr. Wythe, without knowing he was sick, and found him very ill[,] extended on his back. Mr. Wythe said he had not caught cold, that he was as well as usual in the morning, & eat his brea[k]fast as usual; but was immediately taken extremely ill, confined on his back except when forced up, which was upwards of forty times, and had fifteen large evacuations. After the prisoner was committed for the forgery he applied to the deponent by letter to be bailed. Mr. Wythe would have nothing to do with bailing [Swinney]. Mr. Wythe said he was taken ill on the twenty fifth day of May, about nine o'clock after having eat his break-fast; that on wednesday or thursday after, the prisoner was apprehended. Mr. Wythe requested that the prisoner's room and trunk might be searched, which request he repeated frequently, and finally on the first of June prevailed on Mr. McCraw and some other gentlemen who searched the room and trunk and found some papers with something adhereing to them which was declared by Doctor Greenhow<sup>41</sup> to be arsenic. The deponent saw the appearance of arsenic in an out house of Mr. Wythe's, in his yard, used as a shop; and [de-poseth] that some was also found in an old smoak house on a wheel barrow; which on being tried with a pin was proved to be arsenic. On thursday before Mr. Wythe's death he made an ejaculation and declared he was murdered in a low tone of voice. It was generally believed that Mr. Wythe had left the prisoner a great portion of his estate, and known that he had made some pro-vision for the mulatto boy, [Michael] Brown.

Samuel Greenhow<sup>42</sup> another witness sworn on said examination gave the same evidence upon the search of the prisoners room and trunk with McCraw.
and Fifth Streets. DuVal died in Buckingham County in 1842 at the age of 93. W. Asbury Christian, ''Richmond: Her Past and Present'' (Richmond, 1912), 57, 545; Richmond ''Enquirer'', Jan. 13, 1842, and May 13, 1842.

<div style="font-size: 85%;">
<sup>41</sup> The Greenhow to whom DuVal referred may have been the next witness, identified in footnote 42, who is known to have participated in the search of Swinney's room but is not known to have had any claim to the title of Doctor. Conceivably, on the other hand, this Doctor Greenhow may have been the Doctor James G. Greenhow who was living in Richmond in 1815. Blanton, ''Medicine in Virginia in the Nineteenth Century'', 246, 445, citing the Richmond ''Virginia Argus'', Mar. 1, 1815.

<sup>42</sup> Samuel Greenhow issued, as "Principal Agent," a call for the annual meeting in 1809 of the Mutual Assurance Society, the well-known, pioneer Virginia fire insurance company. Richmond ''Enquirer'', Dec. 24, 1808. With men like the Reverend John D. Blair, the Reverend John Buchanan, the Reverend John Holt Rice, and William Munford, Samuel Greenhow was a charter member of the Board of Managers of the Virginia Bible Society, which was organized in Jul., 1813. Christian, ''Richmond'', 87. Greenhow was one of the four witnesses who signed the final codicil to Wythe's will. Minor, "[[Memoir of the Author]]" in Wythe, ''Decisions'', xxxviii-xxxix.
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===Page 558===

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William Price<sup>43</sup> another witness sworn on said examination, gave the same evidence as McCraw and Greenhow on the subject of the search of the prisoner's room, and [substantiated the testimony] of McCraw on the subject of Mr. Wythe’s request to be cut. Mr. McCraw mentioned at that time that he supposed Mr. Wythe wanted to be cut open. Mr. Wythe appeared to be in great agony during his illness, and more particularly when moved.

Nelson Abbott<sup>44</sup> another witness sworn on said examination, deposeth and saith, that on saturday the 24th day of May last, he put an axe, now produced [in court], into a shop in Mr. Wythe’s yard, which he [Wythe] had lent him [Abbott] for a work shop; that on the 27th he went to Hanover and returned on friday the 30th when he discovered the arsenic in its present situation, and a hammer much stained with yellow, which has since been cleaned. The negroes in the shop said the prisoner had beat something they did not know what on the side of the ax with the hammer.

William Claiborne<sup>45</sup> another witness sworn on the said examination deposeth and saith: That he went to Mr. Wythe's the wednesday after his illness [began], who informed him that the Sunday preceding in the morning, he was as well as usual, immediately after breakfast he was taken with a colarimorbus [cholera morbus] and then a violent lax, went forty times that day, and had at least fifteen large evacuations: That on Saturday night he supped [i.e., on Saturday night, May 24, Wythe had supped] on milk and strawberries. Mr. Wythe said all the negroes [of his household] were taken [sick] at the same time. The deponent went into the kitchen and found most of them very ill. He then went to Major DuVal's, and expressed his opinion that the family were poisoned; and suspected the prisoner in consequence of his having been detected [on the previous day, May 27] in the forgery, as the death of Mr. Wythe before the detection could only prevent an alteration in his will which the deponent believed was much in favor of the prisoner. The deponent frequently told the prisoner that he would be well provided for by Mr. Wythe if he behaved well. After the death of the yellow boy [Michael Brown], the deponent was told by some of the negroes that arsenic was found in the outhouses. The deponent took some off the wheelbarrow in the old smoke house, applied fire to it and found from the smell that it was arsenic. The deponent asked Mr. Wythe whether the prisoner break-

<div style="font-size: 85%;">
<sup>43</sup> William Price was another of the witnesses to the final codicil to Wythe's will. Minor, "[[Memoir of the Author]]," in Wythe, ''Decisions'', xxxviii-xxxix.

<sup>44</sup> No information to identify this witness has been discovered.

<sup>45</sup> William Claiborne was the father of W. C. C. Claiborne, Governor of the Territory of Orleans. Richmond ''Enquirer'', Oct. 3, 1809.
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===Page 559===

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fasted with him the morning before he [Wythe] was taken [sick]. At first he did not answer. Afterwards he said he did not know, he [Swinney] was always called to his breakfast, but sometimes took no thing to eat or drink. Mr. Wythe observed he died in peace with all the world, and said he should leave directions for his executor to search the prisoner's trunk. This took place after the death of the boy Michael [on Sunday morning, June <sup>46</sup>], about sunset on the first of June.

[[wikipedia:Edmund Randolph|Edmund Randolph]],<sup>47</sup> being also sworn, deposeth and saith: That on Sunday the first of June about nine o'clock [A.M.], Major DuVal informed the deponent of the death of Michael from poison and [reported] Mr. Wythe as probably dying with the same. Mr. Wythe told the deponent he had supped on strawberries and milk the Saturday before he was taken ill. He wished his will to be altered so as to give to the prisoner's brothers and sisters what he had given him. The deponent made the alteration and then returned home, and afterwards went again to Mr. Wythe and informed him of the death of Michael Brown. The former codicil to the will was then destroyed and the present one made. On Wednesday the fourth of June, the deponent was in-formed by old Lydia [Broadnax] that more marks of poison had been discovered. The deponent went into the shop and saw Abbot's ax. The negro<sup>48</sup>

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<sup>46</sup> George Wythe said in the final codicil to his will, dated Jun. 1, 1806, that he had been told that Michael Brown had died that morning. Minor, "[[Memoir of the Author]]," in Wythe, ''Decisions'', xxxviii-xxxix. An almost contemporary letter also refers to Brown's death on Sunday morning, Jun. 1. William DuVal to Thomas Jefferson, [[Jefferson-DuVal Correspondence#William DuVal to Thomas Jefferson.2C 4 June 1806|Jun. 4, 1806]], Jefferson Papers.

<sup>47</sup> Edmund Randolph, the first Attorney General both of the Commonwealth of Virginia and of the United States, wrote and witnessed the final codicil to Wythe's will. See his testimony here given and Minor, "[[Memoir of the Author]]," in Wythe, ''Decisions'', xxxviii-xxxix. Randolph's career had overlapped Wythe's through the past thirty years—for example, in the Virginia conventions of 1776 and 1788. The first of the two codicils mentioned by Randolph in his testimony evidently devised to George Wythe Swinney's brothers and sisters only what Wythe had formerly bequeathed to Swinney. The second of the two codicils mentioned by Randolph devised to George Wythe Swinney's brothers and sisters everything that Wythe had formerly bequeathed both to Swinney and to Michael Brown. The will and its codicils dated Jan. 19 and Feb. 24, 1806, were proved in the General Court of Virginia on Jun. ii, 1806, by the oaths of Edmund Randolph and Peter Tinsley; and the final codicil, dated Jun. 1, 1806, was proved by the oaths of Samuel McCraw, William Price, and Edmund Randolph. For a printed copy of the will and its three validated codicils see Minor, ''ibid''. An attested manuscript copy is filed under Jun., 1806, in the Jefferson Papers.

<sup>48</sup> This reference to a certain Negro is not as precise as we might wish. Doubtless, however, Randolph talked on Jun. 4 with a Negro man employed in Nelson Abbott's workshop. Possibly this man was one of the same "negroes in the shop" who, according to Abbott's deposition, had told Abbott on May 30 that they did not
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===Page 560===

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was uncertain whether [it was on] the 24th or 26th of May, that the prisoner had caused the appearances [of poisons in the workshop]; but at last settled that it was on Saturday [May 24] when he found the prisoner in the shop, and one of the doors forced, and the prisoner was in the act of pounding some-thing on the axe. The prisoner asked him what it was? the negro replied he believed it was ratsbane. The prisoner then scraped it as clean as he could off the axe and folded it up in a piece of paper, wiping the axe with shavings. It was generally understood and believed that Mr. Wythe had left the bulk of his estate to the prisoner.

Doctor James McClurg,<sup>49</sup> another witness, being sworn, deposeth: That he was present at the opening of the body of Michael Brown. The lower part of the stomach was very much inflamed and had the appearance of the black vomit. The deponent went to visit Mr. Wythe on the day before the boy died and found him with a fever, his tongue very foul, had had no passage for twelve hours, and was free from pain. The appearance of the boy was such as arsenic might have produced; but such as might also have been produced by a great collection of bile. The deponent was also present at the opening the body of Mr. Wythe. The whole of his stomach and intestines had an uncommonly bloody appearance, that if produced by arsenic, in his [McClurg's] opinion, death would have ensued much sooner. Mr. Wythe had been frequently attacked with disordered bowells within three years last past.

Doctor James D. McCaw,<sup>50</sup> being also sworn, deposeth: That he was called ''know'' what substance Swinney had pounded into powder. In slight but not necessarily contradictory contrast, the Negro of whom Randolph testified simply ''believed'' on May 24 that the substance was ratsbane.

<div style="font-size: 85%;">
<sup>49</sup> Under the reorganization of the College of William and Mary instigated by Thomas Jefferson in 1779, James McClurg (1746-1823), Edinburgh-trained physician, had been one of Wythe's four colleagues in the faculty. For three years Dr. McClurg held the newly created chair of the professor of anatomy and medicine. Like Wythe, McClurg went to Philadelphia in 1787 to attend the convention from which emerged the Federal Constitution. McClurg was chosen to be Richmond's mayor in 1797, 1800, and 1803. For a quarter of a century he was one of the community's out-standing physicians. When the Medical Society of Virginia was organized in 1820, he was elected its first president. Although he was too infirm to take an active part in its affairs, he was re-elected in the next year. Blanton, ''Medicine in Virginia in the Nineteenth Century'', 13, 75-76; Christian, ''Richmond'', 545.

<sup>50</sup> James Drew McCaw, M.D., was one of the founders of the Medical Society of Virginia. His father, Dr. James McCaw, founded what might be called a Virginia medical dynasty destined to last five generations. Blanton, ''Medicine in Virginia in the Nineteenth Century'', 116-117, 261, 367. James D. McCaw's offer of 1802 to inoculate the poor of Richmond against smallpox had been accepted by the Common Hall or Council. Richmond ''Examiner'', Jun. 2, 1802. Judging by James D. McCaw's testi-
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===Page 561===

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to attend Mr Wythe on the 26th of May between four and five o'clock. He had been up with a violent puking & purging, and the deponent gave him an opiate, after which he got better, and was better until the discovery of the prisoner's forgery [on Tuesday, May 27], when he became worse and continued to grow worse. The deponent saw the boy [Michael Brown] on the day before his death, when he had a fever and complained of great pain. The deponent saw him opened after his death, and thinks that his death might have been occasioned by a great accumulation of bile.

Doctor William Foushee,<sup>51</sup> being sworn, deposeth: That he attended the opening of Mr Wythe's body in the presence of many other physicians.<sup>52</sup> The stomach was very much inflamed, and appeared as if a new inflamation was coming on. There was very little bile in the liver. The same appearance that his stomach and intestines exhibited might have been produced by arsenic, or any other acrid matter.

James McClurg, William Foushee, James D. McCaw, William Rose, Samuel McCraw, Fleming Russell, William Claiborne, William Price (Register) Nelson Abbott and Taylor Williams,<sup>53</sup> here in Court acknowledge themselves

<div style="font-size: 85%;">
mony, he seems to have been more nearly the family physician to the Wythe household than any of the other physicians whose names occur in records concerning the Chancellor's last illness. To be compared with the recorded testimony of Dr. McClurg and that of Dr. McCaw concerning the autopsy on the body of Michael
Brown is DuVal's letter to Jefferson: "As a Magistrate I requested four eminent Physicians to open the body of the Boy. They did so; from the inflamation on the Stomach & Bowels they said that it was the kind of Inflamation produced by Poison." William DuVal to Thomas Jefferson, [[Jefferson-DuVal Correspondence#William DuVal to Thomas Jefferson.2C 4 June 1806|Jun. 4, 1806]], Jefferson Papers.

<sup>51</sup> William Foushee, M.D., had been born in the Northern Neck in 1749. Like McClurg, he studied medicine in Edinburgh. He served as Richmond's first mayor, 1782-1783, as the town's postmaster for several years, and as the president of its Common Hall or town council for several years. He also served in both the legislative and executive branches of the state government. For many years he presided over the James River Company's internal navigation improvement projects. The General Assembly named him among the charter trustees of the Richmond Academy in 1802. Twenty years later the Medical Society of Virginia elected him its second president. When he died in 1824, he was almost seventy-five years old and was said to have been Richmond's oldest inhabitant. His death evoked an unusually detailed obituary. Christian, ''Richmond'', 57-58, 545; Blanton, ''Medicine in Virginia in the Nineteenth Century'', 75-76; Richmond ''Enquirer'', Aug. 24, 1824.

<sup>52</sup> DuVal reported to Jefferson that William Foushee, James D. McCaw, James McClurg, and two other physicians performed the autopsy on Wythe's body on the day of his death. DuVal stated simply that they found "considerable inflamation in the Stomach," but he added in the same context that it was "strongly suspected" that Wythe and Michael Brown had been poisoned with yellow arsenic by George Wythe Swinney. William DuVal to Thomas Jefferson, [[Jefferson-DuVal Correspondence#William DuVal to Thomas Jefferson.2C 8 June 1806|Jun. 8, 1806]], Jefferson Papers.

<sup>53</sup> It may be highly significant that four of the fourteen witnesses were not
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severally indebted to his Excellency William H. Cabell governor or chief magistrate of the Commonwealth of Virginia, in the sum of one hundred pounds each, of their respective goods and chattels, lands and tenements, to be levied, and to the said governor and his successors, for the use of the said Common- wealth rendered: Yet upon this Condition, that if the said James McClurg, William Foushee, James D. McCaw, William Rose, Samuel McCraw, Fleming Russell, William Claiborne, William Price (Register) Nelson Abbott and Taylor Williams, shall severally make their personal appearance before the Judges of the District Court directed by law to be holden at the Capitol in this City on the first day of the next term of that Court, to give evidence on behalf of the Commonwealth against George W. Swinney, who stands accused of murder, and shall not depart thence without the leave of the said Court, this recognizance is to be void.

(Minutes signed) E: Carrington, Mayor

The depositions of the sixteen witnesses in the two proceedings of June 2 and 23 make Swinney's motives for murder clearer than other contemporary records. Obviously, that troubled knave had tried to solve more than one of his problems at once. By a single desperate deed he might forestall discovery of his forgeries, prevent any resultant reduction or cancellation of the legacy he would receive from Wythe, and claim his inheritance prematurely.

But the second Hustings Court record does not enable us to determine with finality precisely when and how Swinney committed his acts of murder. None of the testimony links arsenic with the coffee served in Wythe's cottage, according to the traditional story of the poisonings, at breakfast on Sunday, May 25. To contrary import are the depositions of Claiborne, McCraw, and Randolph. Their assertions under oath indicate that Swinney had mixed some arsenic with strawberries and that Wythe ate strawberries for supper on Saturday, May 24. Wythe's breakfast coffee may have become the supposed vehicle for the poison on the invalid ground of reasoning of the ''post hoc, propter hoc'' type. Actually, so far as we can tell,

placed under bond to be available to serve as witnesses in the forthcoming trial of Swinney on the charge of murder before the District Court. The four who were exempted from such an obligation were William DuVal, Samuel Greenhow, Edmund Randolph, and Tarlton Webb. While in some respects their testimony before the Hustings Court merely confirmed that of other witnesses, in these respects, and more especially in reference to other observations concerning which others did not testify, the evidence submitted by these four could not be omitted without weakening the case against Swinney.

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he may have consumed poisoned foods at both meals. A fatal dose of arsenic usually produces acute symptoms within about an hour after it enters the human stomach, and death usually follows within one to three days. Wythe's case was not a typical one in the latter respect, and we have scant cause to assume that it was a normal one in the former respect. Fatal dosages of arsenic have been known in rare instances to cause no symptom for as many as twelve hours, particularly if the poison was ad- ministered in solid rather than liquid form and if a full meal was consumed with it; and death has been known to result as much as two weeks after the appearance of symptoms, as it did in Wythe's case. An inexperienced, experimenting Swinney may have underestimated on May 24 the amount of arsenic required to accomplish his premeditated purpose. He may have awaked the next morning to find that his attempt of the previous afternoon or evening had failed. He may then have added a second and larger quantity of arsenic to the breakfast menu. Neither this nor any alternative possibility can be proved conclusively from the available evidence.

More important than questions about details of that sort is the official record's revelation of the limited, inconclusive nature of the physicians' findings in the two autopsies. They did not exhaust every means known to the medical scientists and chemists of their generation to determine whether or not the deaths of Michael Brown and George Wythe had been unnatural ones. One authoritative treatise, for example, published in 1832 but embodying comparatively little that had been learned since 1806, devoted fully a hundred pages to its discussion of arsenic poisoning, forty of them to various definitive tests by which the presence of arsenic can be determined. Its author commented on the ease with which that almost tasteless and odorless chemical element could be procured in various forms and compounds and could be administered surreptitiously. Then he added,

"It is fortunate, therefore, that there are few substances in nature, and perhaps hardly any other poison, whose presence can be detected in such minute quantities and with so great certainty."<sup>54</sup> The inflamed tissues observed by the Richmond doctors were ambiguous. The same kind of examination today would do little more, if any, to pin down positively the cause of such deaths, for gastrointestinal inflammations of quite similar

<div style="font-size: 85%;">
<sup>54</sup> Robert Christison, ''A Treatise on Poisons, in Relation to Medical Jurisprudence, Physiology, and the Practice of Physic'' (2d ed., Edinburgh, 1832), 223. This volume's treatment of arsenic poisoning covers pp. 223-324.
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===Page 564===

<blockquote>
appearance can result from any of several distinct causes, both natural and unnatural. The Richmond physicians' post-mortem inspections should not have ended short of a few simple laboratory procedures. Standard analyses of that kind would almost certainly have proved beyond question whether or not arsenic had ended the lives of the youthful Michael Brown and the aged George Wythe.

The above testimony in both of the suits of the Commonwealth ''v.'' Swinney confirms an undisputed conclusion reached by all who have ever studied the matter: Wythe himself became fully convinced on his death- bed that Swinney was a forger and a murderer. Yet, in fact, that young man escaped legal punishment for both offenses. His road to freedom was, however, a tortuous one. Sometime during the summer of 1806 the charges against him were referred to a grand jury. It returned true bills. Thus it became the third judicial body to render a verdict of guilt against Swinney on each accusation, for the same conclusion had already been reached on each count by one or more of Richmond's magistrates and by the Hustings Court. Specifically, the grand jury cleared the way for the trial of Swinney by the District Court on each of six distinct indictments—one for the murder of Wythe, another for that of Michael Brown, and four for forgeries of Wythe's name on as many checks.<sup>55</sup>

On September 2, 1806, the District Court proceeded to tackle what the [[Respectfully Dedicated to the Legislature of Virginia|Richmond ''Enquirer'']] termed "the celebrated trial of George W. Sweeney, on the charge of administering arsenic to his great Uncle the venerable George Wythe." Judges Joseph Prentis and John Tyler, Sr., whose son of the same name was destined to become the tenth President of the United States, were the two members of Virginia's General Court assigned to preside over this session in the Richmond district.<sup>56</sup> Presumably, the two judges' judicial robes hid the mourning bands of crape that they and other members of the General Court had resolved to wear on their left arms for three months in tribute to the jurist Virginia had lost.<sup>57</sup> At the

<div style="font-size: 85%;">
<sup>55</sup> There is no record of any decision in regard to the other two checks that William Dandridge and Peter Tinsley had testified were, in the opinions of Dandridge and Wythe, also forged.

<sup>56</sup> [[Richmond Enquirer, 9 September 1806|Richmond ''Enquirer'', Sept. 9, 1806]].

<sup>57</sup> Ibid., Jun. 24, 1806; [[Virginia Argus, 17 June 1806|Richmond ''Virginia Argus'', Jun. 17, 1806]]; Richmond ''Impartial Observer'', Jun. 21, 1806. The Governor and Council had resolved on Jun. 14, "in honour of the deceased," to wear black bands similarly for one month as an "outward Sign of respect to his memory." Journals of the Council of Virginia (MSS. in the Virginia State Library), XXVII, 448. When the Virginia General Assembly convened in Dec., 1806, its members also resolved unanimously to "wear a badge of
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===Page 565===

<blockquote>
prosecuting attorney's table sat Philip Norborne Nicholas,<sup>58</sup> the popular young Attorney General of Virginia and successful leader in recent years of the Jeffersonian Republican party in the state. Nicholas had known Wythe while the Chancellor had still resided in Williamsburg. More recently they had been associated in various legal and political activities. Presumably, Nicholas had every reason to prosecute the case with all the vigor at his command.

But the shocked, incensed atmosphere of June had doubtless grown calmer by September, and impressive talents had been aligned on Swinney's side as counsel for the defense.<sup>59</sup> One of these lawyers was the same Edmund Randolph who had written the codicil disinheriting Swinney, the same Randolph who had given damaging testimony against him in the Hustings Court. The other lawyer at Swinney's side was the same William Wirt who had expressed a hope that no attorney would be found to defend him, so that he would be left to suffer the fate he deserved.

Wirt had been contemplating at the beginning of the summer a desire to move from Norfolk to Richmond, for his wife found Norfolk's summers unbearable. He had concluded at that distance within a month after Wythe's death that Swinney could conceivably be innocent of murder. Judge William Nelson of the General Court had told him that "there was a difference of opinion" among Richmond doctors as to the cause of the Chancellor's death and that "the eminent McClurg, amongst others, had pronounced that his death was caused simply by bile and not by poison." Then a brother of Swinney's distressed mother had traveled eastward to implore Wirt to serve as an attorney for the defense.<sup>60</sup>

Although Wirt had already decided before that visit that "it would not be so horrible a thing to defend" Swinney "as, at first, I had thought it," the plea made by his uncle posed a problem of conscience and of reputation. By letter Wirt asked his wife, "What shall I do?" And then he proceeded to influence her decision. "If there is no moral or professional impropriety in it, I know that it might be done in a manner which would avert the displeasure of every one from me, and give me a splendid ''debut'' in the metropolis. Judge Nelson says I ought not to hesitate a moment

<div style="font-size: 85%;">
mourning" for one month. Washington, D.C., [[National Intelligencer, 15 December 1806|''National Intelligencer, and Washington Advertiser'', Dec. 15, 1806]].

<sup>59</sup> ''Ibid.''

<sup>60</sup> William Wirt to his wife, Jul. 13, 1806, Kennedy, ''William Wirt'', I, 152-153.
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===Page 566===

<blockquote>
to do it; that no one can justly censure me for it; and, for his own part, he thinks it highly proper that the young man should be defended. Being himself a relation of Judge Wythe's, and having the most delicate sense of propriety, I am disposed to confide very much in his opinion."'

The issue was settled within ten days. Nelson reiterated his opinion as to "the perfect propriety of the step." Mrs. Wirt evidently protested that her husband need not fear that she would suffer reproach. "I shall defend young Swinney under your counsel," he wrote her. "My conscience is perfectly clear, from the accounts I hear of the conflicting evidence."<sup>62</sup>

Records of the District Court, in which Randolph and Wirt undertook to save the life of George Wythe Swinney, are not extant; apparently they did not survive the fire that accompanied the Confederate evacuation of Richmond in April, 1865. Only from other sources can we learn whether or not the defense attorneys achieved their goal. The Richmond ''Enquirer'' reported succinctly the results of what was probably a day replete with courtroom drama and legal technicalities. "After an able and eloquent discussion" by counsel for the Commonwealth and for Swinney, read that newspaper's summary, "the jury retired, and in a few minutes, brought in the verdict of ''not guilty''. A similar indictment against him [Swinney] for the poisoning of Michael, a mulatto boy (who lived with Mr. Wythe) was quashed without a trial."<sup>63</sup>

There could have been no doubt whatsoever that Virginia's laws of 1806 defined murder by poisoning, if it were committed by a free person, to be murder of the first degree, punishable by death.<sup>64</sup>Some other ex- planation of the jury's astonishing verdict must be sought. Editor Thomas Ritchie offered his readers one hint why Randolph and Wirt had been able to win a quick decision in favor of their despised client. Some of the "strongest testimony" that had been heard by the Hustings Court and by the grand jury, Ritchie remarked, "was kept back from the petit jury" in the District Court. "The reason is, that it was gleaned from the evidence of negroes, which is not permitted by our laws to go against a white

<div style="font-size: 85%;">
<sup>61</sup> ''Ibid''. Nelson's distant kinship to Wythe was evidently through the second Mrs. Wythe, who had been a Taliaferro. See a copy of the will of Rebecca Cocke Taliaferro of "Powhatan," James City County, Nov. 12, 1810, in the possession of Colonial Williamsburg.

<sup>62</sup> William Wirt to his wife, Jul. 23, 1806, Kennedy, ''[[Life of William Wirt#Page 154|William Wirt]]'', 1, 154.

<sup>63</sup> [[Richmond Enquirer, 9 September 1806|Richmond ''Enquirer'', Sept. 9, 1806]].

<sup>64</sup> the enactments of 1796 and 1803, Shepherd, ''Statutes'', II, 5-14 and 405-406, respectively.
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===Page 567===

<blockquote>
man."<sup>65</sup> Actually, the reason assigned by the editor would have been more nearly true if he had phrased it more carefully. As far back as 1732 and as recently as 1801 the statutes of Virginia had stipulated that a Negro or a mulatto could be qualified as a witness only in a lawsuit brought against a Negro or a mulatto or by the commonwealth for one.<sup>66</sup> That is why Lydia Broadnax had not told the Hustings Court in June whatever she knew about the involvement of George Wythe Swinney in the deaths of Michael Brown and George Wythe.

The legal disability of Negroes to testify against Swinney had loomed large in people's thinking about the prospective trials of that ingrate for murder ever since Michael had died. Even before William Wirt learned with certainty that Wythe had also been a victim, Wirt had realized that one law might prevent the fulfillment of justice under another. "The chain of circumstances fix the guilt of Sweney beyond reach of doubt," Wirt had then been willing to assert, "but some of those circumstances, material to his conviction in a court of law, depend, it seems, on black persons, & so he will escape for the poison[ings]. he is under prosecution for the forgery & of that must be convicted."<sup>67</sup>

One logical question is answered neither by Ritchie's explanation nor by Wirt's prophecy. Why was any of the evidence that had been admissible in the three previous proceedings—evidence that had resulted in three verdicts of guilt—not presented in the District Court? No record answers that question. Possibly the District Court refused to hear some of the testimony that had been given before the Hustings Court. Evidence given by the white witnesses in June concerning what Negroes had ob-

<div style="font-size: 85%;">
<sup>65</sup> [[Richmond Enquirer, 9 September 1806|Richmond ''Enquirer'', Sept. 9, 1806]].

<sup>66</sup> The exact words of the law of 1801 were: "Any negro or mulatto, bond or free, shall be a good witness in pleas of the commonwealth for or against negroes or mulattoes, bond or free, or in civil pleas where free negroes or mulattoes shall alone be parties." Shepherd, ''Statutes'', II, 300. The statute of 1785 was to the same effect, although its provisions were couched in negative terms and omitted the words "bond" and "free" in each of the five instances of their use in the enactment of 1806. Hening, ''Statutes'', XII (Richmond, 1823), 182-183. Digests of the 1732 and 1748 statutes and of related legislation can be found conveniently in June Purcell Guild, ''Black Laws of Virginia: A Summary of the Legislative Acts of Virginia concerning Negroes from Earliest Times to the Present'' (Richmond, 1936), 154-155.

<sup>67</sup> William Wirt to James Monroe, Jun. 10, 1806, Monroe Papers, vol. XI, no. 1373. Internal evidence in this letter indicates that for the facts he stated Wirt was indebted to a communication written on Jun. 5, 1806, by his brother-in-law, Governor Cabell, and the prophecies Wirt voiced may also have reflected the Governor's thinking as of that date.
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===Page 568===

<blockquote>
served and had told them may have been ruled inadmissible by Judges Prentis and Tyler because of its Negro source or its hearsay nature. On the other hand, we have no proof acceptable by the ordinary standards of historical criticism that Swinney was acquitted because of the repression of the testimony Lydia Broadnax or other Negroes might have given but for Virginia's laws. Ritchie's allegation about the withholding of testimony "gleaned from the evidence of negroes" remains unsubstantiated, and Wirt's prophecy can be considered to have been merely a recognition of the flimsiness of the circumstantial evidence others would be able to give.

The simple fact remains that no known witness was able to assert in any of the four proceedings that he had actually seen Swinney put poison into food eaten by Michael Brown or by George Wythe. Moreover, no physician is known to have been willing to swear that either of the two autopsies proved that death had been caused by a poison. In other words, the evidence against Swinney was purely circumstantial.

Thomas Ritchie himself had not been hysterical in his attitude toward Swinney during the first days of resentment following the news of the Chancellor's death. The editor had remembered, sanely and circum- spectly, that the accusations against Swinney had not then been proved and that, until and unless they were, he should be presumed innocent. "Every situation in life has its rights and its duties," Ritchie had cautioned his readers. "Let us therefore respect the rights of the accused."<sup>68</sup> If Swinney's two lawyers took advantage in the District Court of every legal technicality to protect their client's rights, Ritchie should have been among the last to imply any criticism of them, for they had placed themselves under obligation to do so.

In any case, George Wythe was dead. Another man's life was at stake. It is the very genius of the legal system Wythe had received from his forefathers and had himself helped to develop and to refine that this second life should not be taken lightly. Since we do not know in detail what transpired in that Richmond courtroom on September 2, 1806, we are left in the position of being forced to accept at face value the jury's final decision, which was that Swinney had not been proved beyond reasonable doubt to have murdered George Wythe and that he was therefore ''not guilty''. Similarly, we must accept the opinion of Attorney General Nicholas that it would have been useless to try to prove beyond reasonable doubt that Swinney had murdered Michael Brown.

<div style="font-size: 85%;">
<sup>68</sup> [[Richmond Enquirer, 10 June 1806|Richmond ''Enquirer'', Jun. 10, 1806]].
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===Page 569===

<blockquote>
Nevertheless, we can record the fact that those jurymen are the only persons known to have expressed at any time in or since 1806 an opinion that Swinney was not a murderer. William Wirt had concluded that Swinney could conceivably be innocent of the charge, but Wirt left no record now extant that he actually believed Swinney to be the victim of an unjust accusation. The common impression throughout the summer of 1806 was that Swinney had committed two premeditated murders. That opinion has remained unchanged to this day.

George Wythe Swinney had escaped death by hanging. It remained to be seen whether or not he would become permanently branded a convicted forger. Within another twenty-four hours he received a tentative answer to this second question. On Thursday, September 3, 1806, he was adjudged guilty on two of the forgery indictments.<sup>69</sup> But these verdicts were not allowed to stand unquestioned. Within ten days William Wirt pleaded successfully, "in an eloquent and ingenious speech" addressed to Judges Prentis and Tyler of the District Court, for arrest of judgment. Wirt's objections were considered acceptable by the two judges and were referred to the next session of the General Court for approval or rejection.<sup>70</sup> Wirt had changed his mind since his assertion in June that Swinney would doubtless be convicted of the forgery charges.

Someone else had come earlier than Wirt to the conclusion that the laws of Virginia would not justify inflicting punishment on Swinney for having obtained certain things of value at the state's bank by using forged signatures. Indeed, former Governor Page had decided in June that what Swinney had done at the Bank of Virginia was a crime only against God, not against any law of the Commonwealth of Virginia. "As to this young Man's Forgeries," Page had commented in highly moralistic vein but with a practical twist, "when religion is out of the way, I can see nothing in our law, that could restrain him, or any one else from a free exercise of that lucrative Employment. But for a sense of religion, I myself could not have done a better act for the Benefit of my Wife & Children, than to have . . . died . .. consoled with the pleasing reflection that I had handsomely provided for my Family, in a way permitted, nay chalked out by our Laws." <sup>71</sup>

<div style="font-size: 85%;">
<sup>69</sup> [[Richmond Enquirer, 9 September 1806|''Ibid.'', Sept. 9, 1806]].

<sup>70</sup> Richmond ''Virginia Gazette, & General Advertiser'', Sept. 13, 1806.

<sup>71</sup> Page's letter continued: "I could, if under no religious impressions, tell my Wife & Children, that no one would think the worse of them for what I had done; and indeed that they would always be respected in proportion to their riches, and
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===Page 570===

<blockquote>
Could it be true, as Page thought he perceived, that Swinney had violated no law by his use of counterfeited signatures of George Wythe? Almost entirely so, declared the General Court in two quite technical opinions on November 17, 1806, with Judges [[wikipedia:Francis T. Brooke|Francis T. Brooke]], [[wikipedia:Paul Carrington (judge)|Paul Carrington]], Jr., [[wikipedia:Hugh Holmes (Virginia politician)|Hugh Holmes]], [[wikipedia:Archibald Stuart|Archibald Stuart]], John Tyler, Sr., and [[wikipedia:Robert White (judge)| Robert White]] on the bench. They learned that the District Court's jury had convicted Swinney on an indictment for having obtained from the Bank of Virginia on May 27, 1806, a ''banknote'' for $100. In order to do so, he had presented to William Dandridge both a counterfeited letter and a forged check purporting to have been written and signed by Wythe. But the judges also heard that the arrest of judgment had been awarded on the ground that the forgeries of which Swinney had been accused did not actually constitute offences against a Virginia statute enacted in 1789, which was the only law the forgery indictments against him had contrived to mention.<sup>72</sup>

For one thing, William Wirt had argued that the 1789 law "was intended to punish a pre-existing evil" and could not possibly have reference to any bank, since no bank was established in Virginia until "many years" later. In the second place, Wirt contended that the law's phraseology, as well as its date, precluded any possibility of its being applied to the Bank of Virginia. The statute made illegal any deceitful deed, bill of sale, or other such document that would result in the robbery of one or more "private individuals." The bank could not properly be considered a

<div style="font-size: 85%;">
that both I and they would have been despised had I left them poor—that therefore the riches I had acquired for them would secure them respect in this World, and that as to any other, they need not trouble themselves about it—that they ought to enjoy their hearts desire in all things, and say 'let us eat & drink for tomorrow we die.' . . . But believing as I do in a divine revelation, I had rather perish with my Wife & Children through absolute Want, than that any one of us, should do one unjust or dishonest Act." John Page to St. George Tucker, Jun. 29, 1806, Tucker-Coleman Papers.

<sup>72</sup> The law that Swinney was alleged by the indictment to have broken had been adopted on Nov. 18, 1789. It was entitled "An act against those who counterfeit letters or privy tokens, to receive money or goods in other men's names." It provided that "if any person or persons, shall falsely and deceitfully obtain or get into his or their hands or possession, any money, goods or chattels of any other person or persons, by colour and means of any such false token or counterfeit letter, made in any other man's name as is aforesaid; every such person and persons so offending, and being thereof lawfully convicted in the court of the district, in which such offence shall have been committed," shall be subject to a maximum term of one year in prison and to "setting upon the pillory." Hening, ''Statutes'', XIII (Philadelphia, 1823), 22.
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===Page 571===

<blockquote>
"person or persons" within the meaning of the law. It was "a body corporate, an ideal body," and "no more a person, than the commonwealth of Virginia." Anything, therefore, that Swinney had obtained from the bank could not have been procured in violation of a law that made punishable the getting by false means of "any money, goods or chattels of any other person or persons." And in the third place, Wirt argued, what Swinney had received was not part of "the money or goods of the said George Wythe, because having been delivered under a check not drawn by him, the bank hath no right to charge it to his account."

In connection with the ''banknote'' in question under the first indictment, the General Court found Wirt's claims convincing enough. Its judges concluded that they should grant a permanent arrest of judgment. Thus they reversed the petit jury's verdict that Swinney was guilty; thus they pronounced him innocent of the crime alleged to have occurred on May 27. While Wythe lay on his deathbed that Tuesday, Swinney had perpetrated a forgery, but it was not an unlawful forgery.

The other indictment under which the District Court had found Swinney guilty of a violation of the same statute was quite similar to the first. The second differed in only one significant particular. It involved $50 that Swinney had obtained from the bank by the same means on April 11, 1806, in the form of ''currency''. Wirt's appeal in the District Court for an arrest of judgment had been won on the same three grounds, and they were pleaded anew as sufficient cause for making the temporary ban against sentence upon Swinney a permanent one.

In this instance the General Court did not agree. It refused to accept Wirt's argument that the "''money current''" Swinney had gotten at the bank in April could not properly be charged against the account of Wythe, by virtue of the forged check, and was therefore not Wythe's money until Swinney had acquired possession of it falsely. Evidently, Virginia's supreme tribunal for criminal law decided that neither of Wirt's first two points was valid in respect to either indictment and that the validity of Wirt's third contention depended entirely upon the natures of the two kinds of property the forger had received. In other words, the six judges' two decisions meant, essentially, that the promissory ''banknote'' Swinney obtained on May 27 had not been Wythe's "money, goods or chattels" but that the ''currency'' involved in the similar transaction of April 11 had been. If this distinction seems subtle, thin, and flimsy, it appears to have been not more so than whatever reasoning persuaded the judges to ignore
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===Page 572===

<blockquote>
Wirt's assertions that the 1789 law was not at all pertinent to the later means of "getting something for nothing" upon which an unconsciously clever forger had stumbled. The chagrined John Page, who had been Governor of Virginia when the state bank was established, had believed on June, 1806, that none of Swinney's forgeries was illegal. Page had been much disconcerted by his discovery that the commonwealth had not foreseen and had not prohibited such misuses of another's signature. The General Court, on the other hand, professed to believe that one of Swinney's forgeries had inadvertently violated a law more than fifteen years old and obviously designed to curb other frauds wrought by means if forgery. Consequently, the court decreed that punishment should be imposed upon Swinney under the second indictment by the District Court.<sup>73</sup>

Nevertheless, according to a report derived from official records that are not now extant, the District Court did not execute its sentence, which was that Swinney should spend one hour in the pillory at Richmond's public market and six months in prison. Contrary to the General Court's decree and for reasons inexplicable today, the District Court is said to have granted Swinney a second trial on the indictment the higher court had upheld, and then the attorney for the commonwealth declined to prosecute the case.<sup>74</sup>

Thus freed, technically at least, of all charges against him, but with a reputation he would never be able to live down locally, the "unfortunate" Swinney "then sought refuge in the West, where his career was brought to a premature and miserable close."<sup>75</sup> So reads one account, written about the middle of the nineteenth century, of the end of the life of

<div style="font-size: 85%;">
<sup>73</sup> William Brockenbrough and Hugh Holmes, ''[[Commonwealth against George Wythe Swinney|Collection of Cases Decided by the General Court of Virginia, Chiefly Relating to the Penal Laws of the Commonwealth, Commencing in the Year 1789 and Ending in 1814, Copied from the Records of Said Court, with Explanatory Notes]]'' (Philadelphia, 1815), 146-151.

<sup>74</sup> Minor, "[[Memoir of the Author]]," in Wythe, ''Decisions'', xxviii. In a footnote on that page Minor asserted: "The records of these proceedings [in the District Court after the return to it of the decree of the General Court in the last of tie suits of the Commonwealth v. Swinney] have been consulted in the office of tie Superior Court of Law for Henrico County." Minor wrote those words in or before 1852. Presumably, reorganizations of Virginia's judicial system between 1806 and 1852 account for the fact that records of the District Court in Richmond for its Apr., 1807, term (the first session it was scheduled to have after the Nov., 186, term of the General Court) had come by 1852 into the custody of the Superior Court of Law for Henrico County. The fire in Richmond during April 2-3, 1865, apparently explains their disappearance.

<sup>75</sup> ''Ibid''.
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===Page 573===

<blockquote>
the young man to whom George Wythe had been "kinder than a Father."<sup>76</sup> According to the memory of another Richmonder fifty years after George Wythe Swinney had been a defendant in the capital's courtrooms, Swinney went to Tennessee, stole a horse, served a term in a penitentiary, and was "then lost sight of."<sup>77</sup> The forgeries that preceded and led directly to the death of George Wythe may not have been plainly and provably crimes against the Commonwealth of Virginia. But they served one useful purpose, for they pointed out a glaring loophole in Virginia's laws. The state acted promptly to plug that gap. On the last day of the same year the General Assembly adopted and put into immediate effect "An ACT to punish certain thefts and forgeries." That law clearly defined as a crime every deed by which any person should "fraudulently obtain, or aid or assist in obtaining from the Bank of Virginia, or any of its offices of discount and deposit, any bank or post note, or money, by means of any forged or counterfeit check or order whatsoever, knowing the same to be forged or counterfeited." Violators of the new statute, when they were properly found guilty in court, were to be imprisoned for "not less than two, nor more than ten years."<sup>78</sup>

In the final analysis, we may guess, George Wythe Swinney escaped death on the gallows because of three considerations. One of these seems to be the forgiveness Wythe himself gave him. That could not alter one whit Swinney's legal liability to pay the penalty for murder, but it may have influenced, both consciously and unconsciously, the men who prosecuted and defended Swinney, those who testified, the judges who decided what evidence was admissible, and the twelve "good men and true" who retired to a jury room in the September trial. A second determining factor probably was the failure of the physicians to perform complete autopsies and thus to be prepared to assert unequivocally on the witness stand that, in their professional judgments, the deaths of Michael Brown and George Wythe had been caused by arsenic poisoning. Such testimony would have become, quite possibly, the "clincher" that would have strengthened the

<div style="font-size: 85%;">
<sup>76</sup> William DuVal to Thomas Jefferson, [[Jefferson-DuVal Correspondence#William DuVal to Thomas Jefferson.2C 4 June 1806|Jun. 4, 1806]], Jefferson Papers.

<sup>77</sup> Dove, "[[Memoranda Concerning the Death of Chancellor Wythe|Memoranda]]." Although Minor accepted Dr. Dove's recollections they are so untrustworthy in matters that can be checked that the unsubstantiated statements concerning Swinney's life after he escaped the clutches of the law in Richmond made by both Dove and Minor must be considered traditionary rather than supported by valid evidence.

<sup>78</sup> Shepherd, ''Statutes'', III, 289.
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===Page 574===

<blockquote>
web of circumstantial evidence against Swinney enough to put a knotted rope around his neck. A third presumed factor was inherent in Anglo-American jurisprudence. The doctors and other Virginians who participated as witnesses, attorneys, jurymen, and judges in Swinney's final trial for murder were honorable men. They cleared him of the accusation because, evidently, they thought it important to save the life of a young man who ''might'' be innocent, although he certainly seemed not to be. George Wythe himself would doubtless have had the same respect for the legal principle of a reasonable doubt.

Did Virginia justice suffer a miscarriage in 1806? For want of complete records, we cannot properly lift our second-guessing voices to cry that it went wrong. But we can agree heartily with the opinion held by Wythe himself and never relinquished by most of his sympathetic but straightforward contemporaries—the belief that, by every standard other than the technical ones of the law, Swinney had assuredly done serious wrongs. Like Wythe's survivors, we can only take comfort in the fact that Virginia justice may have avoided adding another wrong to Swinney's and in the fact that his chief victim, Chancellor Wythe himself, the "Virginia Socrates" and the "American Aristides," had achieved on his deathbed, by revoking his generous bequests to Swinney, one final act of obvious equity.
</blockquote>

==See also==

*[[Commonwealth against George Wythe Swinney]]
*[[Honest Lawyer]]
*[[Hustings Court Minutes]]
*[[Hustings Court Order Book]]
*[[Jefferson-DuVal Correspondence]]
*[[Life of William Wirt]]
*[[Memoir of the Author]]
*[[Memoranda Concerning the Death of Chancellor Wythe]]
*[[Murder of George Wythe]]
*[[National Intelligencer, 15 December 1806]]
*[[Richmond Enquirer, 8 July 1806]]
*[[Richmond Enquirer, 10 June 1806]]
*[[Richmond Enquirer, 9 September 1806]]
*[[Virginia Argus, 10 June 1806]]
*[[Virginia Argus, 17 June 1806]]
*[[Virginia Argus, 25 June 1806]]
*[[Virginia, June General Court, 1806]]

==References==
<references/>

==External links==

*[https://oieahc.wm.edu/ Omohundro Institute of Early American History and Culture]

[[Category:Biographies (Articles)]]
[[Category:Murder of George Wythe]]

Examinations of George Wythe Swinney for Forgery and Murder

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{{DISPLAYTITLE:"Examinations of George Wythe Swinney for Forgery and Murder: A Documentary Essay"}}
[[File:WilliamAndMaryQuarterlyOctober1955Wythe.jpg|thumb|right|400px|Engraved portrait [[George Wythe]] by [[Depictions of Wythe|J.B. Longacre]], from the ''William and Mary Quarterly,'' 3rd ser., 12, no. 4 (October 1955), 512.]]

Wythe scholar W. Edwin Hemphill contributed to a special issue of ''The William and Mary Quarterly'', dedicated to the murder of [[George Wythe]], in October, 1955. The issue was published in accordance with the Marshall-Wythe celebration at the [http://law.wm.edu/ College of William & Mary Law School] on September 25, 1954, for the bicentennial of [[John Marshall|John Marshall's]] birth. The journal pairs Hemphill's essay on "[[Media:HemphillExaminationsOfGeorgeWytheSwinneyOctober1955.pdf|Examinations of George Wythe Swinney for Forgery and Murder]],"<ref>W. Edwin Hemphill, "Examinations of George Wythe Swinney for Forgery and Murder: A Documentary Essay," ''William and Mary Quarterly'' 3rd ser., 12, no. 4 (October 1955), 543-574.</ref> with another by [[wikipedia:Julian P. Boyd|Julian P. Boyd]], "[[Murder of George Wythe]]."<ref>Julian P. Boyd, "[[Media:BoydMurderOfGeorgeWytheOctober1955.pdf|The Murder of George Wythe]]," ''William and Mary Quarterly'' 3rd ser., 12, no. 4 (October 1955), 513-542.</ref> Hemphill had rediscovered witness testimony given for [[Death of George Wythe#Sweeney's Trial|Sweeney's murder trial]] in 1806, and both authors made use of this new information.

Hemphill and Boyd's work was published as a pamphlet reprint the same year, under the title: [https://catalog.swem.wm.edu/law/Record/343766 ''The Murder of George Wythe: Two Essays''] (Williamsburg, VA: [https://oieahc.wm.edu/ Institute of Early American History and Culture,] 1955).

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==Article text, October 1955==
===Page 543===

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'''Examinations of George Wythe Swinney<br />for Forgery and Murder: A Documentary Essay'''<br />W. Edwin Hemphill*
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“I SHUDDER when I think of it." Thus wrote [[wikipedia:John Page (Virginia politician)|John Page]] three weeks after the death of [[George Wythe]] in Richmond on June 8, 1806.<sup>1</sup> Less than a year and a half had elapsed since a "numerous concourse" of Jeffersonian Republicans had gathered at the Washington Tavern in the capital on March 4, 1805, to celebrate the second inauguration of [[Thomas Jefferson]] as the President of the United States. On the joyous occasion of the party's victory banquet Governor Page had asked Judge Wythe to retire and had then proposed a volunteer toast to "George Wythe, distinguished alike for his wisdom and integrity as a magistrate, and his zeal and disinterestedness as a patriot." The tavern's hall had resounded with nine cheers—as many as were given in response to any prearranged or spontaneous toast, even that to the President himself.<sup>2</sup> Nine months later Page had retired from the governorship.

As he sat at his writing desk late in June, 1806, amid the peace and security of "Rosewell," his magnificent home in Gloucester County, John Page reflected upon the saddening, disheartening news he had heard during a recent trip to Richmond. [[William DuVal]], George Wythe's nearest neighbor, had told Page how their mutual friend had suffered and had died—and how very suspect certain circumstances preceding that death seemed. But nothing had yet been proved. So the circumspect Page scribbled to another friend an outburst that was more a sermon than a digest of the evidence. "I know only enough" about the "horrid tale," he remarked in his letter to St. George Tucker, one of Wythe's students and the judge who had succeeded Wythe in the chair of law in the College

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* Mr. Hemphill is Managing Editor of ''Virginia Cavalcade'' and a member of the staff of the Virginia State Library. These depositions were discovered by Mr. Hemphill and are now printed for the first time in this issue of the ''Quarterly''.

<sup>1</sup> John Page to [[St. George Tucker]], Jun. 29, 1806, Tucker-Coleman Papers, Colonial Williamsburg.

<sup>2</sup> Richmond ''Enquirer'', Mar. 8, 1805.
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[[File:BoydHemphillMurderOfGeorgeWytheTwoEssays1955.jpg|thumb|right|400px|Title page from Boyd and [[Examinations of George Wythe Swinney for Forgery and Murder|Hemphill's]] pamphlet reprint, [https://catalog.swem.wm.edu/law/Record/343766 ''The Murder of George Wythe: Two Essays''] (Williamsburg, VA: Institute of Early American History and Culture, 1955).]]
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of William and Mary, "to shock my Soul." But the former Governor could not forbear comment along other lines. The murder of Chancellor Wythe, he exclaimed, made him "feel for humanity—and the wounded honor of my Country!"<sup>3</sup>

[[wikipedia:William H. Cabell|Governor William H. Cabell]], Page's successor, was also distressed. He reminded one of his sisters-in-law of their experience when they had visited a Miss Nelson, who had then been living in the modest Richmond home of her uncle, the widowered, scholarly Chancellor. "She and all of us were almost children, and few grown men would have found any interest in staying in the room where we were. But the good old gentleman brought forth his philosophical apparatus and amused us by exhibiting experiments, which we did not well comprehend, it is true, but he tried to make us do so, and we felt elevated by such attentions from so great a man."<sup>4</sup>

The up-and-coming [[wikipedia:William Wirt (Attorney General)|William Wirt]], who had served for a year in a judicial office coordinate with that of the victim,<sup>5</sup> wrote from Norfolk to [[wikipedia:James Monroe|James Monroe]], who was abroad, in indignant terms about the "dose of arsenick administered" to "poor old Chancellor Wythe."<sup>6</sup> Five weeks later Wirt could assure his absent wife, "I dare say you have heard me say that I hoped no one would undertake the defence of [the accused, George Wythe] Swinney, but that he would be left to the fate which he seemed so justly to merit."<sup>7</sup>

The editor of a Richmond newspaper was upset enough to describe his news announcement of the death as a "painful task."<sup>8</sup> An editor in Raleigh, North Carolina, was told "by a gentleman lately from Rich-

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<sup>3</sup> John Page to St. George Tucker, Jun. 29, 1806, Tucker-Coleman Papers.

<sup>4</sup> William H. Cabell to Mrs. William Wirt (undated), quoted in John Pendleton Kennedy, ''[[Life of William Wirt#Page 151|Memoirs of the Life of William Wirt, Attorney General of the United States]]'' (Philadelphia, 1849), I, 151-152. Hereafter cited as Kennedy, ''William Wirt''.

<sup>5</sup> Ambitious for wealth, Wirt found his position as judge of the Superior Court of Chancery for the Eastern District irksome, its salary barely adequate in view of his second marriage, which took place in September, 1802. It "is possible," he observed wryly, "that I may, like Mr. Wythe, grow old in judicial honors and Roman poverty. I may die beloved, reverenced almost to canonization by my country, and my wife and children, as they beg for bread, may have to boast that they were mine." [[Life of William Wirt|William Wirt to Dabney Carr]], Feb. 13, 1803, ''ibid.'', 95. In May, 1803, Wirt returned to the practice of law as an attorney, with his residence and headquarters in Norfolk. ''Ibid.'', 87-101.

<sup>6</sup> William Wirt to James Monroe, Jun. 10, 1806, Monroe Papers, vol. XI, no. 1373, Library of Congress.

<sup>7</sup> William Wirt to Elizabeth Gamble Wirt, Jul. 13, 1806, Kennedy, ''[[Life of William Wirt#Page 152|William Wirt]]'', 1, 152-153.

<sup>8</sup> [[Virginia Argus, 10 June 1806|Richmond ''Virginia Argus'', Jun. 10, 1806]].
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mond" about the crime and was thus enabled to "scoop" the world by publishing the first printed details, albeit inaccurate ones, of the "circumstances of this horrid transaction."<sup>9</sup> Newspapers as far away as Boston recorded its effect.<sup>10</sup> Richmond's press devoted an apparently unprecedented amount of space to the modest, touching, but reserved funeral oration by [[William Munford]]<sup>11</sup> and to laudatory tributes received as anonymous communications to the editors; the total aggregated what seems to have been more column inches of eulogy than had been elicited in Virginia newspapers by the death of George Washington or by that of any other person.<sup>12</sup>

Washington's imaginative, opportunistic biographer, Mason Locke Weems, seized upon news that had "quite galvanized" the "very young and tender hearted" in Charleston, South Carolina, as excuse enough for a discursive essay. That itinerant book-peddler described himself as "getting now to be a little oldish . . . , and daily, as becomes a stranger in Charleston, at this season, looking out for a squall of the same sort." Weems viewed with equanimity the fact that "death, by a touch of his old thresher, with equal ease, brings down a Chancellor or a cherry." He professed no grief over the death of the Virginian he portrayed as "[[Honest Lawyer|The Honest Lawyer]]." On the contrary, the effusive "Parson" enjoined joy "that this veteran of the law, after a life of glorious toil, to revive the golden age of justice on earth, was returned to the high courts of heaven-not

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<sup>9</sup> Raleigh, N. C., ''Minerva'', Jun. 16, 1806.

<sup>10</sup> Boston, Mass., ''Gazette'', Jun. 19, 1806, and ''Columbian Centinel'', Jun. 21, 1806.

<sup>11</sup> After the death of Wythe's second wife in 1787, William Munford (1775-1825) had lived in Wythe's home in Williamsburg and had been a special object of Wythe's generous attentions to youth. Grateful, Munford named his oldest child George Wythe Munford "after my old friend and benefactor the Chancellor." William Munford to his sister-in-law, Mrs. Mary R. Preston, Jan. 10, 1803, Munford- Ellis Papers, Duke University Library. Munford, his heart "torn with sorrow," then accepted the Council of State's assignment to preach the funeral oration, partly because "the ties of gratitude to that best of men, for the extraordinary kindness he ever manifested towards me, ought to prohibit my suffering him to go to his grave without an Eulogy." William Munford to Governor William H. Cabell, Jun. 8, 1806, Executive Papers, Virginia State Library. The funeral oration by Munford was printed in its entirety by two Richmond newspapers: Richmond ''Enquirer'', Jun. 13 and 17, 1806; Richmond ''Virginia Argus'', Jun. 17, 1806.

<sup>12</sup> See issues of the ''Enquirer'', the ''Impartial Observer'', the ''Virginia Argus'', and the ''Virginia Gazette, & General Advertiser'' during the first three or four weeks after Jun. 8, 1806. The author's comparison is based upon impressions rather than upon actual counts of the space allotted by Richmond editors to obituaries, eulogies, etc., for Wythe and for such other distinguished citizens as George Washington, who had died in 1799, and Edmund Pendleton, who had died in 1803.
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pale and trembling . . . , wet with widows' tears, and blood of murdered patriots, to meet the tear-avenging God; but bright in conscious integrity, with hands pure as the sweet palms which press the alabaster bottles of life, and in robes of innocence, snow-white as those that angels wear, to meet the smiles of the Judge Supreme, and the acclamations of brother saints innumerable."'<sup>13</sup>

Celebrants of the Fourth of July in 1806 drank toasts to the memory of George Wythe.<sup>14</sup> Restricted to severe brevity by that social form of tribute, those who gathered for the Fourth at Lexington, Kentucky, remembered Wythe simply as "a faithful labourer in the vineyard of the republic."<sup>15</sup> There the orator of the day was Henry Clay, who until his own death remained proud of the fact that he had been associated with Wythe's court during the 1790's. Indeed, young Clay had been the amanuensis who transcribed for publication the Chancellor's annotated decisions, confusingly peppered though they were with Greek phrases Clay had been able neither to understand nor to write well.<sup>16</sup> Saddened by the news that had plunged Richmond into mourning (news that had just reached Lexington), Clay made his address "short and impressive."<sup>17</sup>

The sense of revulsion felt throughout the country crossed party lines as well as state lines. A Federalist organ in the nation's largest city copied from the Richmond ''Enquirer'' two paragraphs of Republican editor Thomas Ritchie's shocked obituary. To those paragraphs it appended the Petersburg, Virginia, ''Republican's'' pointed comment: "It is generally believed, that this patriot, has been brought to the grave, by means, the 'most foul, base and unnatural,' and that the accused is to undergo an examination."<sup>18</sup> Even a modern interpreter of the Old Dominion cites the felony as the worst example of the cussedness—or something worse—

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<sup>13</sup> M. L. Weems, "[[Honest Lawyer|The Honest Lawyer: An Anecdote]]," Charleston, S. C., ''Times'', Jul. 1, 1806.

<sup>14</sup> [[Richmond Enquirer, 8 July 1806|Richmond ''Enquirer'', Jul. 8, 1806]].

<sup>15</sup> Lexington ''Kentucky Gazette'', Jul. 5, 1806.

<sup>16</sup> Henry Clay to B. B. Minor, May 3, 1851, printed in Benjamin Blake Minor, '[[Memoir of the Author]]," in George Wythe, ''Decisions of Cases in Virginia, by the High Court of Chancery, with Remarks upon Decrees, by the Court of Appeals, Reversing Some of Those Decisions'' (2d ed., B. B. Minor, ed., xxxii-xxxvi. Richmond, 1852), Hereafter cited as Wythe, ''Decisions''.

<sup>17</sup> Bernard Mayo, ''Henry Clay, Spokesman of the New West'' (Boston, 1937), 208-209.

<sup>18</sup> Philadelphia, Pa., ''Poulson's American Daily Advertiser'', Jun. 17, 1806. This newspaper attributed the remark to the Petersburg ''Republican'' of an unspecified date.
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that she attributes to Virginians.<sup>19</sup> The murder of George Wythe took at the time top or high rank among the state's most heinous crimes. It still does.

Inevitably, the revolting affair created quite a stir, for people ''will'' talk. Throughout the week before the prostrated Wythe's last breath set the bells of Richmond a-tolling, his death was a foregone conclusion. People marveled that a man of his age could so long survive the excruciating agonies of so insidious and lethal a poison. While Wythe still suffered, strong suspicion was aroused. Circumstances and tangible evidence converted suspicion into conviction at least seven days before the poison produced its ultimate effect upon the Chancellor's strong constitution.

The suspect was as undoubted as was the conclusion that Wythe was a victim of premeditated murder by means of arsenic. Invariably the slayer was identified as the venerable patriot's teen-aged grandnephew and namesake, George Wythe Swinney, an ingrate who had already proved himself unworthy of the home and education he had enjoyed for several years under the hip roof of the Chancellor's unpretentious cottage. Had not that young reprobate stolen books and money from his too-trusting benefactor? Had he not forged checks against his patron's bank account? And had it not been generally known, doubtless by Swinney himself, that he was the chief heir to Wythe's estate, a modest one but doubtless large enough to provide some relief to a culprit in financial difficulties? So, people said, he had placed his fatal dose in the breakfast coffee served in the unsuspecting household on Sunday morning, May 25. Immediately after that meal the good old judge and two freed Negroes had become critically ill. Lydia Broadnax, the Chancellor's faithful cook and servant, recovered. Michael Brown, the mulatto lad to whom Wythe had personally been giving a classical education—Greek and all—as a practical experiment in testing and developing the intelligence of Virginia's other race, had died on the next Sunday, June 1. The Chancellor himself lived in torment—and perhaps toward the end in a merciful coma—through a second week, but he died on the second Sunday morning, June 8. Fortunately, however, he did not expire before he had altered his will to disinherit the villainous Swinney.

Such is the traditional account of the death of Wythe—a paraphrase expanded to greater length than any known to have been written within the next two weeks, doubtless shorter than many conversational versions

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<sup>19</sup> Virginia Moore, ''Virginia Is a State of Mind'' (New York, 1943), 190-191.
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of the time, and certainly embodying the contemporary explanations of the timing, the method, and the motive of the murderer of Michael Brown and George Wythe.<sup>20</sup> This story of the baneful circumstances has persisted ever since 1806. In its retellings it has undergone normal embellishments and amendments. Developments not fully understood when they occurred gave the tale a poor foundation at the start. The recollections of its original narrators grew more and more subject to error with the passing years. Family traditions, transmitted orally, added details and supplied conversations that seem more logical than they are trustworthy. Fanciful emphases and interpretations have been born of assumptions, not of research.

The only substantial modification, however, has been a pronounced tendency to portray the poisoning of Wythe as an accident, while that of Michael Brown has remained the result of intentional murder. This alteration cannot be traced backward beyond 1850. It stems from two sources that were not independent of each other. One was the quite faulty memory of Dr. John Dove of Richmond, who claimed in 1856 that he had been "[[Memoranda Concerning the Death of Chancellor Wythe|present during the sickness & death of Judge Wythe]]." Dove alleged that the Chancellor had been ill before May 25, 1806, and that Swinney had not expected him to eat breakfast that Sunday morning where the poisoned coffee was to be served. The other source was Benjamin Blake Minor, editor of the ''Southern Literary Messenger'', who contributed a biographical sketch to the second edition of the Chancellor's ''Decisions'' (1852). Minor talked with Dr. Dove, who undoubtedly told him something to the effect that Swinney had "vowed vengeance" only against the mulatto boy; and

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<sup>20</sup> Evidently the earliest summaries of the circumstances now extant are in the reliable letters written by William DuVal to Thomas Jefferson on [[Jefferson-DuVal Correspondence#William DuVal to Thomas Jefferson.2C 4 June 1806|Jun. 4 and 8]], preserved in the Jefferson Papers, Library of Congress. Neither attributes to the poisonings a plain method or motive. The earliest written statement as to motivation and method is apparently to be found in the letter of Jun. 10, 1806, from William Wirt in Norfolk to James Monroe, Monroe Papers, vol. XI, no. 1373. That letter was written before Wirt had learned of Wythe's death. Internal evidence in Wirt's letter indicates that the allegations it relayed were based exclusively on information written on Jun. 5, in a letter that has not been found, by Governor William H. Cabell, his brother-in-law. A later account is in the brief, less specific recollection recorded by Littleton Waller Tazewell, who wrote that "it was generally believed" that Wythe's death "was produced by poison, administered in his coffee, by a reprobate boy, a relation of his who he had undertaken to educate, and who was afterwards convicted of having committed many forgeries of checks in his patrons name." "Sketches of his own family, written by Littleton Waller Tazewell, for the use of his children. Norfolk. Virginia. 1823" (MS. in the Virginia State Library), 121.
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Minor found what seemed to him to be sufficient substantiation in Wythe's will and two of its codicils, which made Swinney the residuary legatee of bequests to Michael Brown.<sup>21</sup> Until now the only serious analysis of the traditional account of Wythe's death and of the Dove-Minor misinterpretation has been that of Julian P. Boyd. His lucidly reasoned booklet on ''[[Murder of George Wythe|The Murder of George Wythe]]'' assayed them chiefly by the test of comparison with information found in seven previously unexploited letters written in 1806 to President Jefferson by Wythe's intimate friend and executor, William DuVal.<sup>22</sup>

But other and even better contemporary records are also extant, and it is good that the ''William and Mary Quarterly'' affords space in this issue both for them and Dr. Boyd's thoughtful interpretation, now relatively unavailable. Chief among these additional documents are official court records of the preliminary trials of George Wythe Swinney for forgery and murder. Like pirates' gold buried in a forgotten pit, they lay neglected through more than a century and a quarter despite recurrent curiosity about Wythe's tragic death. These legal records, discovered by the present writer a number of years ago and now published for the first time, contain precious nuggets of authentic information. They include digests of the sworn testimony of sixteen witnesses for the prosecution against Swinney. They add up to a convincing indictment of him. The discovery was made in the office of the Clerk of the Hustings Court of the City of Richmond,<sup>23</sup> where the documents lay within the

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<sup>21</sup> Both of the phrases quoted above are from Dr. Dove's recorded recollections, which are replete with provable errors and must be considered wholly suspect. "[[Memoranda Concerning the Death of Chancellor Wythe|Memoranda concerning the death of Chancellor Wythe]]—Signed in the Aut[o]-g[rap]h. of T[homas]. H. Wynne and rec'd by him from Dr. John Dove, Sept. 16, 1856," MS. in the Brock Collection, Henry E. Huntington Library and Art Gallery. Hereafter cited as Dove, "Memoranda." For evidence that John Dove, M.D., was a Richmond practitioner from about 1822 to about 1852, see Wyndham B. Blanton, ''Medicine in Virginia in the Nineteenth Century'' (Richmond, 1933), 48, 76, 91, 238, 240. For evidence that Dove influenced Minor directly, see Minor, "[[Memoir of the Author]]," in Wythe, ''Decisions'', xxvii.

<sup>22</sup> Julian P. Boyd, ''[[Murder of George Wythe|The Murder of George Wythe]]'' (Philadelphia, 1949).

<sup>23</sup> Binder's title "[[Hustings Court Order Book|Order Book No. 6, 1804-1806]]," 464-465, 482-488. Rough drafts of the records for these two cases of the Commonwealth v. Swinney—drafts identical to the final ones in every important respect—can be found in the same office in the volume given the binder's title of "[[Hustings Court Minutes|Minutes No. 3, 1802-1806]]" (MS. with pages not numbered) under dates of Jun. 2 and 23, 1806, respectively. Microfilm copies of both the Minute Book and the Order Book are available in the Virginia State Library. The final drafts of the two documents have been transcribed from the Order Book for publication below.
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domain of the very court to which the laws of Virginia prevailing in 1806 required that such an offender in Richmond as Swinney should be brought first for any trial of which an official record would have been kept. When Richmond had been incorporated in 1782, it was made a unit of local government. The General Assembly had provided by law for the annual election of twelve citizens to serve in their spare time as municipal officials. Half of them were to constitute a legislative Common Council. The remaining six—a mayor, a recorder, and four aldermen—were commanded "to hold a court of hustings" each month. Its jurisdiction in Richmond corresponded to that of a county court within county boundaries. Each of the judges of the Hustings Court had been vested with the powers of a justice of the peace, and they had been specifically assigned the duty "of examining criminals for all offences committed within the limits of the said corporation." If they found a defendant guilty of a serious crime, they were to refer him to a higher court for trial before professional judges and a jury.<sup>24</sup> These governmental and legal arrangements for the preservation of law and order had been modified only slightly in later statutes, but a law of 1803 had increased the membership of the Common Council to fifteen and that of the Hustings Court to nine, doubtless in recognition of Richmond's growth to a population of more than five thousand.<sup>25</sup> We shall find that not all of our questions are answered by these documents, but no searcher for the treasure-trove could reasonably have expected it to be so rich. Yet it multiplies by many times the amount of contemporary data at our disposal. It enables us to confirm some details reported unofficially at the time and to correct others. It supplies us with vivid portraits of a gloomy, wicked, and yet remorseful youth; of the last days of a questioning, then convinced, and ultimately forgiving victim; of the anxious solicitude and growing outrage of the latter's friends; and of their transition from innocent acceptance of his serious illness as a natural thing to mounting suspicion, relatively thorough investigation, and distressing proof of the poisoner's guilt. Coupled with our greater knowledge of toxicology and with other contemporary records not utilized

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<sup>24</sup> William Waller Hening, compiler, ''The Statutes at Large ... of Virginia . . .'' (Richmond, Philadelphia, New York, 1819-1823,) XI (Richmond, 1823), 45-51. Hereafter cited as Hening, ''Statutes''.

<sup>25</sup> ''Ibid.'', XII (Richmond, 1823), 407-408; Samuel Shepherd, compiler, ''The Statutes at Large of Virginia,. . . 1792, to . . . 1806 . . .'' (Richmond, 1835-1836), II, 93, 422-425, III, 73-75. Hereafter cited as Shepherd, ''Statutes''.
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by previous investigators, it affords us a surer understanding of the grim story of the unpunished forgeries and murders committed by George Wythe Swinney than was vouchsafed to any of the people who mourned the death of Chancellor Wythe and sought with decreasing fervor to do justice to the cause of it—a more reliable understanding, indeed, than any of our predecessors attained.

The official record of the examination of Swinney for alleged forgery reads as follows:

At a Court of Hustings called and held for the City of Richmond at the Courthouse, on Monday, the second day of June 1806, for the examination of George W. Swinney,<sup>26</sup> who stands accused of forgery.<sup>27</sup>

Present

Edward Carrington, Gentleman, Mayor,

Samuel Pleasants, Gentleman, Recorder,

Henry S. Shore, William Goodwin, Anderson Barret,

David Lambert and William Richardson, Gentlemen, Aldermen.

The prisoner was led to the bar in custody of the Sergeant of this City; whereupon sundry witnesses were sworn and examined, and the prisoner in his defence fully heard: On consideration whereof, the Court is of opinion that the prisoner is guilty of the offence aforesaid, and doth order that he undergo a trial therefor at the next District Court directed by law to be holden at the Capitol in this City: and it is further ordered that the said George W. Swinney be bound in a recognizance in the penalty of one thousand dollars, with suf-

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<sup>26</sup> George Wythe Swinney, whose surname occurs in contemporary records also in the form of various spellings of Sweeney, was a grandson of George Wythe's sister and hence a grandnephew of Wythe. For genealogical information concerning him and related Sweeneys see W. Edwin Hemphill, George Wythe the Colonial Briton: A Biographical Study of the Pre-Revolutionary Era (Doctoral Dissertation, University of Virginia, 1937), 40.

<sup>27</sup> Swinney had doubtless been accused of forgery as the result of a preliminary hearing before one or more of the municipal magistrates or justices of the peace, presumably within the last five days of the preceding week, May 27-31, as is indicated by the testimony of the first witness below. William Wirt enumerated a few other manifestations of dishonesty on Swinney's part that had been preludes to his climactic crime: "The young villain (only about 16 or 17) had been in the habit of robbing his uncle [i.e., his granduncle, George Wythe] with a false-key, had sold three trunks of his most valuable law-books, had forged his checks on the bank to a considerable amount, & wound up his villainies by this act [of murder]." William Wirt to James Monroe, Jun. 10, 1806, Monroe Papers, vol. XI, no. 1373.
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ficient security in a like penalty, for his personal appearance before the Judges of the said district Court, on the first day of the next term thereof, to answer the Commonwealth of the offence aforesaid; and failing to give the security required, he is remanded to jail until he shall give such security, or shall be otherwise discharged by the course of law.

William Dandridge (Teller of the Bank of Virginia) a witness on the foregoing examination, being sworn, deposeth and saith: That on Tuesday last [May 27], the prisoner produced to him at the bank of Virginia, a check thereon for the sum of one hundred dollars, drawn in the name of George Wythe esquire, which the deponent paid. That some time after, on examining the check, he suspected it to be a forged one, and he thereupon went to the prisoner and stated that he believed there was a mistake in said check; That the prisoner immediately produced the money and delivered the same to the deponent. That the prisoner frequently presented checks at the bank in the name of the said George Wythe; and the deponent verily believes that six checks now produced in Court were presented by the prisoner, and are all counterfeited.

Peter Tinsley,<sup>28</sup> another witness sworn on the said examination deposeth and saith: That he carried to George Wythe esquire seven checks drawn in his name on the bank of Virginia, who denied having drawn or signed more than one of them.

William Dandridge and Peter Tinsley here in Court acknowledge themselves indebted to his Excellency William H. Cabell governor or chief magistrate of the Commonwealth of Virginia, in the sum of one hundred pounds each, of their respective goods and chattels, lands and tenements, to be levied, and to the said governor and his successors, for the use of the said Common-wealth rendered: Yet upon this Condition, that if the said William Dandridge and Peter Tinsley shall severally make their personal appearance before the Judges of the District Court directed by law to be holden at the Capitol in this City, on the first day of the next term thereof, to give evidence on behalf of the Commonwealth against George W. Swinney, who stands accused of forgery, and shall not depart thence without the leave of the said Court, then this recognizance is to be void.<center>
(Minutes signed) E: Carrington Mayor<sup>29</sup>
</center>

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<sup>28</sup> Tinsley was for many years Clerk of the High Court of Chancery.

<sup>29</sup> One item of corrective evidence is brought out in this record. Unofficial reports of 1806, whenever they stated or implied a chronology for Swinney's crimes, invariably indicated that his forgeries and the discovery of them preceded his poisoning of Judge Wythe. On the contrary, Dandridge testified that Swinney was sus-
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The official record of the examination of Swinney on the charge of murder is a remarkably detailed one. Its unusual length doubtless reflects a common impression of the uncommon nature and circumstances of the alleged crime. The record reveals utter desperation on the part of an al-most deranged Swinney. It portrays the mounting growth of suspicion during illnesses that might have been provoked by merely natural causes. It embodies observations that link Swinney conclusively with ratsbane (white arsenic) and yellow arsenic. It records medical symptoms and measures that are not nice but seem necessary. And it indicates reserve on the part of three physicians when they gave under oath their professional judgments whether or not the death of George Wythe could be attributed to arsenic poisoning. This record is as follows:

At a Court of Hustings called and held for the City of Richmond at the Courthouse, on Monday, the 23d. day of June 1806, for the examination of George W. Swinney, who stands accused of murder.<sup>30</sup>
Present

The Same Justices as above.<sup>31</sup>

The prisoner was led to the bar in custody of the Sergeant of this City; where-upon sundry witnesses were sworn and examined, and the prisoner in his

<div style="font-size: 85%;">
pected for the first time of his forgeries after he had presented a sixth forged check at the bank on Tuesday, May 27. That Tuesday will be found to have been two or three days after Swinney had poisoned Wythe. On that Tuesday the Chancellor lay abed in the early stages of his mortal illness. That is one reason—and his charitable, compassionate nature may be another—for the fact that Wythe himself did not testify in court which of the seven checks "carried" to him by Tinsley he had not signed personally. Further details about the six forgeries will be revealed later in this article.

<sup>30</sup> The accusation against Swinney for the alleged murders of "Wythe & Michael Brown the Freed Boy" had resulted, in keeping with Virginia law, from a hearing held on Jun. 18 before Mayor Edward Carrington and two other magistrates or aldermen. On that occasion the examination of witnesses "lasted near Five Hours." The mayor and his two colleagues "were of Opinion that they, Mr. Wythe & Michael, were poisoned by Geo. W Sweeney." The suspect was ordered to be held in jail to await trial by the Hustings Court as a "Court of Examination" on Jun. 23. William DuVal to Thomas Jefferson, [[Jefferson-DuVal Correspondence#William DuVal to Thomas Jefferson.2C 19 June 1806|Jun. 19, 1806]], Jefferson Papers. Cf. Shepherd, ''Statutes'', III, 73-75.

<sup>31</sup> That is to say, the same six who had been present for the trials of earlier cases on Jun. 23: Mayor Edward Carrington, Recorder Samuel Pleasants, Jr., and Aldermen Henry S. Shore, Anderson Barret, David Lambert, and William Richardson. Aldermen William DuVal, William Goodwin, and Thomas Underwood did not sit as judges for this examination. DuVal attended as a witness.
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===Page 554===

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defence fully heard: On consideration whereof, the Court is of opinion that the prisoner is guilty of the offence aforesaid, and doth order that he undergo a trial therefor before the next District Court directed by law to be holden at the Capitol in this City: and thereupon the said George W. Swinney is remanded to jail.<sup>32</sup>

Tarlton Webb,<sup>33</sup> a witness for the Commonwealth on this examination, being sworn, deposeth and saith: That about a fortnight or three weeks be-fore the prisoner was committed to jail, he enquired of the deponent where he could procure any ratsbane? The deponent replied that it was against the law of the United States to have it. The day before the prisoner was apprehended,<sup>34</sup> he came to the house of the deponent's mother, and shewed the depon[en]t something wrapped in paper, which he said was Ratsbane, and in-formed the deponent that he intended to kill himself, and offered to give the deponent some if he wanted to die. The deponent being shown some drugs found in the jail and produced in Court by Mr. [William] Rose,<sup>35</sup> deposes that what the prisoner showed him was like that in Mr. Rose's possession, and that there was about one table spoonful. The prisoner stated to the deponent that he was very unhappy and something pressed upon his mind; but though applied to, would not disclose the cause of his uneasiness to the deponent.

William Rose,<sup>36</sup> another witness sworn on this examination, deposeth and

<div style="font-size: 85%;">
<sup>32</sup> The [[Virginia, June General Court, 1806|Richmond ''Enquirer'', Jun. 24, 1806]], printed the following announcement of the decision: "George W. Swinney was yesterday called before the examining court of this city, on the charge of poisoning his great Uncle, the venerable George Wythe, and a servant boy. He was unanimously remanded to jail for further trial before the district court to be had in September next." Although it was not particularly customary for crime news, especially courtroom news of this tentative sort, to be widely reprinted, this item reappeared in such representative newspapers as the Richmond [[Virginia Argus, 25 June 1806|''Virginia Argus'', Jun. 25, 1806]]; the Alexandria ''Virginia Gazette, & General Advertiser'', Jun. 25, 1806; the Washington, D. C., ''National Intelligencer, and Washington Advertiser'', Jun. 30, 1806, and ''Universal Gazette'', Jul. 3, 1806; the Augusta, Ga., ''Chronicle'', Jul. 12, 1806; and the Savannah, Ga., ''Columbian Museum & Savannah Advertiser'', Jul. 12, 1806, and ''Georgia Republican'', Jul. 15, 1806.

<sup>33</sup> This witness has not been identified positively. His testimony suggests that he was probably a youthful friend of Swinney.

<sup>34</sup> Swinney was arrested on Wednesday, May 28, or Thursday, May 29, according to testimony given in this examination by witness William DuVal, reproduced below. Webb's testimony here to the effect that Swinney told him on May 27 or May 28 that "something pressed upon his [Swinney's] mind" can be, therefore, a veiled reference by Swinney himself to worry and remorse because of the way he had used poison, with results that had not yet proved fatal, and possibly also because of the forgery committed and detected on Tuesday, May 27.

<sup>35</sup> For an identification of William Rose see the next paragraph and footnote 36.

<sup>36</sup> Rose was the public jailor of Richmond. Richmond ''Enquirer'', Jul. 8, 1817. Rose's
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===Page 555===

<blockquote>
saith: That his servant girl Pleasant, went into the garden about twelve o'clock the day after the prisoner was committed to jail and brought the paper this day produced [in court], the contents of which the deponent immediately knew to be arsenic. When the prisoner was committed to jail, the deponent did not search him; but about an hour and a half after, or thereabouts, hearing that it was probable he had pistols, he went into the jail and felt his pocket, and felt that there was a heavy substance wrapped in paper; but supposing that it might be coppers, or some few eighteen penny pieces, he did not take it out of his pocket. The prisoner had the use of the debtors room and the jail yard at his option. As soon [as] the arsenic was found the deponent suspected that Mr. Wythe was poisoned.

Samuel McCraw,<sup>37</sup> another witness sworn on the said examination, deposeth and saith; That being informed by Mr. Rose, that arsenic had been found in his garden, he proposed to have the servant carried into the garden to see the place where [the arsenic had been] found, to ascertain whether it was deposited there, or thrown from the jail yard. That at the place where the servant stated the arsenic to have been found, the deponent found two papers lying about eighteen inches apart: That the crude arsenic had penetrated a little into the earth, and there were two plants one a fennel, the other a beat [''sic''], broken off as he supposed by the throwing the arsenic over the jail wall: The deponent thinks it must have come from the jail yard. The beat [''sic''] that was wounded was next [i.e., nearer] the jail wall and was wounded considerably farther from the ground than the fennel. On the first of June, one week after Mr. Wythe's attack [began], the deponent was re-quested to go to attest [the final codicil to] Mr. Wythe's will. Mr. Wythe re-quested the prisoner's room and trunk to be searched. The deponent, with others, was conducted to the room where the prisoner lodged, opened the chest and found a port folio with a quire of blotting paper, which the deponent believes to be of the same kind with what was found wrapped round the arsenic found in the garden. In the prisoner's room on a writing table, the deponent found a paper on which were a half a dozen strawberries with the appearance of arsenic having been sprinkled over them. He found a phial with an appearance of having had a liquid, some of which adhered to the side of the phial, and on examination was believed to have been a mixture of testimony and that of the next witness make it plain that the former's residence and garden adjoined the jail.

<div style="font-size: 85%;">
testimony and that of the next witness make it plain that the former's residence and garden adjoined the jail.

<sup>37</sup> McCraw was one of the four witnesses who signed the final codicil to Wythe's will. Minor, "[[Memoir of the Author]]," in Wythe, ''Decisions'', xxxviii-xxxix.
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===Page 556===

<blockquote>
arsenic and sulphur. He also found two pieces of coarse brown paper, with something adhering to each, which was also declared to be arsenic and sulphur. The deponent frequently visited Mr. Wythe in his last illness and he appeared to be in very great agony from the first time to his death. Some time before the death of Mr. Wythe, while this deponent was sitting by him, Mr. Wythe exclaimed, cut me—the deponent supposed he wanted to have his flannel cut loose which the deponent accordingly did, but which gave apparent displeasure to Mr. Wythe, who then putting his hand to his throat and heart again called out, cut me, but could make no further explanation: this induced a belief in the deponent and those present that it was his wish to be opened after his death. The deponent never did hear Mr. Wythe express any suspicion of having been poisoned.

Fleming Russell<sup>38</sup> another witness sworn on the said examination deposeth and saith; That the day he received the warrant [for the arrest of Swinney] he went to Mr. Wythe's and found the prisoner: when he showed the prisoner the warrant and carried him to Major DuVal's & discovered he had no pistols, took his knife from him, and put his hand in his coat pocket, he felt very distinctly that he had two separate parcels of something wraped up in paper in his pocket but made no further search. After the prisoner was committed to jail, the deponent informed Mr. Rose, that the prisoner had some-thing else in his coat pocket and advised him to make a search, but did not go with Mr. Rose to make it.

Taylor Williams<sup>39</sup> a witness sworn on the said examination deposeth and saith; That about three weeks before the prisoner was apprehended, he mentioned something to the deponent about poison. The deponent informed him that copperas [i.e., crystallized ferrous sulphate] and water was poison. In about six or seven days after, the prisoner began a conversation with the deponent about poison: the deponent then told him ratsbane was poison, and that a gentleman of his acquaintance used it for the purpose of killing rats, and that [it] was to be bought in the shops, but does not recollect with certainty whether the prisoner asked him where it might be had.

Major William DuVal<sup>40</sup> another witness sworn on said examination de-

<div style="font-size: 85%;">
<sup>38</sup> This witness has not been identified. Judging from his testimony, he must have been a Richmond police officer.

<sup>39</sup> Williams appears from his testimony to have been a young friend of Swinney.

<sup>40</sup> William DuVal was of Huguenot descent, an officer during the Revolutionary War, an attorney, a member of the Virginia General Assembly, a magistrate of Richmond who had served as mayor during 1805-1806, and an intimate friend of Wythe, whose residence was also located in the square bounded by Grace, Sixth, Franklin,
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===Page 557===

<blockquote>
poseth and saith; that on the 25th day of May, he went to see Mr. Wythe, without knowing he was sick, and found him very ill[,] extended on his back. Mr. Wythe said he had not caught cold, that he was as well as usual in the morning, & eat his brea[k]fast as usual; but was immediately taken extremely ill, confined on his back except when forced up, which was upwards of forty times, and had fifteen large evacuations. After the prisoner was committed for the forgery he applied to the deponent by letter to be bailed. Mr. Wythe would have nothing to do with bailing [Swinney]. Mr. Wythe said he was taken ill on the twenty fifth day of May, about nine o'clock after having eat his break-fast; that on wednesday or thursday after, the prisoner was apprehended. Mr. Wythe requested that the prisoner's room and trunk might be searched, which request he repeated frequently, and finally on the first of June prevailed on Mr. McCraw and some other gentlemen who searched the room and trunk and found some papers with something adhereing to them which was declared by Doctor Greenhow<sup>41</sup> to be arsenic. The deponent saw the appearance of arsenic in an out house of Mr. Wythe's, in his yard, used as a shop; and [de-poseth] that some was also found in an old smoak house on a wheel barrow; which on being tried with a pin was proved to be arsenic. On thursday before Mr. Wythe's death he made an ejaculation and declared he was murdered in a low tone of voice. It was generally believed that Mr. Wythe had left the prisoner a great portion of his estate, and known that he had made some pro-vision for the mulatto boy, [Michael] Brown.

Samuel Greenhow<sup>42</sup> another witness sworn on said examination gave the same evidence upon the search of the prisoners room and trunk with McCraw.
and Fifth Streets. DuVal died in Buckingham County in 1842 at the age of 93. W. Asbury Christian, ''Richmond: Her Past and Present'' (Richmond, 1912), 57, 545; Richmond ''Enquirer'', Jan. 13, 1842, and May 13, 1842.

<div style="font-size: 85%;">
<sup>41</sup> The Greenhow to whom DuVal referred may have been the next witness, identified in footnote 42, who is known to have participated in the search of Swinney's room but is not known to have had any claim to the title of Doctor. Conceivably, on the other hand, this Doctor Greenhow may have been the Doctor James G. Greenhow who was living in Richmond in 1815. Blanton, ''Medicine in Virginia in the Nineteenth Century'', 246, 445, citing the Richmond ''Virginia Argus'', Mar. 1, 1815.

<sup>42</sup> Samuel Greenhow issued, as "Principal Agent," a call for the annual meeting in 1809 of the Mutual Assurance Society, the well-known, pioneer Virginia fire insurance company. Richmond ''Enquirer'', Dec. 24, 1808. With men like the Reverend John D. Blair, the Reverend John Buchanan, the Reverend John Holt Rice, and William Munford, Samuel Greenhow was a charter member of the Board of Managers of the Virginia Bible Society, which was organized in Jul., 1813. Christian, ''Richmond'', 87. Greenhow was one of the four witnesses who signed the final codicil to Wythe's will. Minor, "[[Memoir of the Author]]" in Wythe, ''Decisions'', xxxviii-xxxix.
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===Page 558===

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William Price<sup>43</sup> another witness sworn on said examination, gave the same evidence as McCraw and Greenhow on the subject of the search of the prisoner's room, and [substantiated the testimony] of McCraw on the subject of Mr. Wythe’s request to be cut. Mr. McCraw mentioned at that time that he supposed Mr. Wythe wanted to be cut open. Mr. Wythe appeared to be in great agony during his illness, and more particularly when moved.

Nelson Abbott<sup>44</sup> another witness sworn on said examination, deposeth and saith, that on saturday the 24th day of May last, he put an axe, now produced [in court], into a shop in Mr. Wythe’s yard, which he [Wythe] had lent him [Abbott] for a work shop; that on the 27th he went to Hanover and returned on friday the 30th when he discovered the arsenic in its present situation, and a hammer much stained with yellow, which has since been cleaned. The negroes in the shop said the prisoner had beat something they did not know what on the side of the ax with the hammer.

William Claiborne<sup>45</sup> another witness sworn on the said examination deposeth and saith: That he went to Mr. Wythe's the wednesday after his illness [began], who informed him that the Sunday preceding in the morning, he was as well as usual, immediately after breakfast he was taken with a colarimorbus [cholera morbus] and then a violent lax, went forty times that day, and had at least fifteen large evacuations: That on Saturday night he supped [i.e., on Saturday night, May 24, Wythe had supped] on milk and strawberries. Mr. Wythe said all the negroes [of his household] were taken [sick] at the same time. The deponent went into the kitchen and found most of them very ill. He then went to Major DuVal's, and expressed his opinion that the family were poisoned; and suspected the prisoner in consequence of his having been detected [on the previous day, May 27] in the forgery, as the death of Mr. Wythe before the detection could only prevent an alteration in his will which the deponent believed was much in favor of the prisoner. The deponent frequently told the prisoner that he would be well provided for by Mr. Wythe if he behaved well. After the death of the yellow boy [Michael Brown], the deponent was told by some of the negroes that arsenic was found in the outhouses. The deponent took some off the wheelbarrow in the old smoke house, applied fire to it and found from the smell that it was arsenic. The deponent asked Mr. Wythe whether the prisoner break-

<div style="font-size: 85%;">
<sup>43</sup> William Price was another of the witnesses to the final codicil to Wythe's will. Minor, "[[Memoir of the Author]]," in Wythe, ''Decisions'', xxxviii-xxxix.

<sup>44</sup> No information to identify this witness has been discovered.

<sup>45</sup> William Claiborne was the father of W. C. C. Claiborne, Governor of the Territory of Orleans. Richmond ''Enquirer'', Oct. 3, 1809.
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===Page 559===

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fasted with him the morning before he [Wythe] was taken [sick]. At first he did not answer. Afterwards he said he did not know, he [Swinney] was always called to his breakfast, but sometimes took no thing to eat or drink. Mr. Wythe observed he died in peace with all the world, and said he should leave directions for his executor to search the prisoner's trunk. This took place after the death of the boy Michael [on Sunday morning, June <sup>46</sup>], about sunset on the first of June.

[[wikipedia:Edmund Randolph|Edmund Randolph]],<sup>47</sup> being also sworn, deposeth and saith: That on Sunday the first of June about nine o'clock [A.M.], Major DuVal informed the deponent of the death of Michael from poison and [reported] Mr. Wythe as probably dying with the same. Mr. Wythe told the deponent he had supped on strawberries and milk the Saturday before he was taken ill. He wished his will to be altered so as to give to the prisoner's brothers and sisters what he had given him. The deponent made the alteration and then returned home, and afterwards went again to Mr. Wythe and informed him of the death of Michael Brown. The former codicil to the will was then destroyed and the present one made. On Wednesday the fourth of June, the deponent was in-formed by old Lydia [Broadnax] that more marks of poison had been discovered. The deponent went into the shop and saw Abbot's ax. The negro<sup>48</sup>

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<sup>46</sup> George Wythe said in the final codicil to his will, dated Jun. 1, 1806, that he had been told that Michael Brown had died that morning. Minor, "[[Memoir of the Author]]," in Wythe, ''Decisions'', xxxviii-xxxix. An almost contemporary letter also refers to Brown's death on Sunday morning, Jun. 1. William DuVal to Thomas Jefferson, [[Jefferson-DuVal Correspondence#William DuVal to Thomas Jefferson.2C 4 June 1806|Jun. 4, 1806]], Jefferson Papers.

<sup>47</sup> Edmund Randolph, the first Attorney General both of the Commonwealth of Virginia and of the United States, wrote and witnessed the final codicil to Wythe's will. See his testimony here given and Minor, "[[Memoir of the Author]]," in Wythe, ''Decisions'', xxxviii-xxxix. Randolph's career had overlapped Wythe's through the past thirty years—for example, in the Virginia conventions of 1776 and 1788. The first of the two codicils mentioned by Randolph in his testimony evidently devised to George Wythe Swinney's brothers and sisters only what Wythe had formerly bequeathed to Swinney. The second of the two codicils mentioned by Randolph devised to George Wythe Swinney's brothers and sisters everything that Wythe had formerly bequeathed both to Swinney and to Michael Brown. The will and its codicils dated Jan. 19 and Feb. 24, 1806, were proved in the General Court of Virginia on Jun. ii, 1806, by the oaths of Edmund Randolph and Peter Tinsley; and the final codicil, dated Jun. 1, 1806, was proved by the oaths of Samuel McCraw, William Price, and Edmund Randolph. For a printed copy of the will and its three validated codicils see Minor, ''ibid''. An attested manuscript copy is filed under Jun., 1806, in the Jefferson Papers.

<sup>48</sup> This reference to a certain Negro is not as precise as we might wish. Doubtless, however, Randolph talked on Jun. 4 with a Negro man employed in Nelson Abbott's workshop. Possibly this man was one of the same "negroes in the shop" who, according to Abbott's deposition, had told Abbott on May 30 that they did not
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===Page 560===

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was uncertain whether [it was on] the 24th or 26th of May, that the prisoner had caused the appearances [of poisons in the workshop]; but at last settled that it was on Saturday [May 24] when he found the prisoner in the shop, and one of the doors forced, and the prisoner was in the act of pounding some-thing on the axe. The prisoner asked him what it was? the negro replied he believed it was ratsbane. The prisoner then scraped it as clean as he could off the axe and folded it up in a piece of paper, wiping the axe with shavings. It was generally understood and believed that Mr. Wythe had left the bulk of his estate to the prisoner.

Doctor James McClurg,<sup>49</sup> another witness, being sworn, deposeth: That he was present at the opening of the body of Michael Brown. The lower part of the stomach was very much inflamed and had the appearance of the black vomit. The deponent went to visit Mr. Wythe on the day before the boy died and found him with a fever, his tongue very foul, had had no passage for twelve hours, and was free from pain. The appearance of the boy was such as arsenic might have produced; but such as might also have been produced by a great collection of bile. The deponent was also present at the opening the body of Mr. Wythe. The whole of his stomach and intestines had an uncommonly bloody appearance, that if produced by arsenic, in his [McClurg's] opinion, death would have ensued much sooner. Mr. Wythe had been frequently attacked with disordered bowells within three years last past.

Doctor James D. McCaw,<sup>50</sup> being also sworn, deposeth: That he was called ''know'' what substance Swinney had pounded into powder. In slight but not necessarily contradictory contrast, the Negro of whom Randolph testified simply ''believed'' on May 24 that the substance was ratsbane.

<div style="font-size: 85%;">
<sup>49</sup> Under the reorganization of the College of William and Mary instigated by Thomas Jefferson in 1779, James McClurg (1746-1823), Edinburgh-trained physician, had been one of Wythe's four colleagues in the faculty. For three years Dr. McClurg held the newly created chair of the professor of anatomy and medicine. Like Wythe, McClurg went to Philadelphia in 1787 to attend the convention from which emerged the Federal Constitution. McClurg was chosen to be Richmond's mayor in 1797, 1800, and 1803. For a quarter of a century he was one of the community's out-standing physicians. When the Medical Society of Virginia was organized in 1820, he was elected its first president. Although he was too infirm to take an active part in its affairs, he was re-elected in the next year. Blanton, ''Medicine in Virginia in the Nineteenth Century'', 13, 75-76; Christian, ''Richmond'', 545.

<sup>50</sup> James Drew McCaw, M.D., was one of the founders of the Medical Society of Virginia. His father, Dr. James McCaw, founded what might be called a Virginia medical dynasty destined to last five generations. Blanton, ''Medicine in Virginia in the Nineteenth Century'', 116-117, 261, 367. James D. McCaw's offer of 1802 to inoculate the poor of Richmond against smallpox had been accepted by the Common Hall or Council. Richmond ''Examiner'', Jun. 2, 1802. Judging by James D. McCaw's testi-
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===Page 561===

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to attend Mr Wythe on the 26th of May between four and five o'clock. He had been up with a violent puking & purging, and the deponent gave him an opiate, after which he got better, and was better until the discovery of the prisoner's forgery [on Tuesday, May 27], when he became worse and continued to grow worse. The deponent saw the boy [Michael Brown] on the day before his death, when he had a fever and complained of great pain. The deponent saw him opened after his death, and thinks that his death might have been occasioned by a great accumulation of bile.

Doctor William Foushee,<sup>51</sup> being sworn, deposeth: That he attended the opening of Mr Wythe's body in the presence of many other physicians.<sup>52</sup> The stomach was very much inflamed, and appeared as if a new inflamation was coming on. There was very little bile in the liver. The same appearance that his stomach and intestines exhibited might have been produced by arsenic, or any other acrid matter.

James McClurg, William Foushee, James D. McCaw, William Rose, Samuel McCraw, Fleming Russell, William Claiborne, William Price (Register) Nelson Abbott and Taylor Williams,<sup>53</sup> here in Court acknowledge themselves

<div style="font-size: 85%;">
mony, he seems to have been more nearly the family physician to the Wythe household than any of the other physicians whose names occur in records concerning the Chancellor's last illness. To be compared with the recorded testimony of Dr. McClurg and that of Dr. McCaw concerning the autopsy on the body of Michael
Brown is DuVal's letter to Jefferson: "As a Magistrate I requested four eminent Physicians to open the body of the Boy. They did so; from the inflamation on the Stomach & Bowels they said that it was the kind of Inflamation produced by Poison." William DuVal to Thomas Jefferson, [[Jefferson-DuVal Correspondence#William DuVal to Thomas Jefferson.2C 4 June 1806|Jun. 4, 1806]], Jefferson Papers.

<sup>51</sup> William Foushee, M.D., had been born in the Northern Neck in 1749. Like McClurg, he studied medicine in Edinburgh. He served as Richmond's first mayor, 1782-1783, as the town's postmaster for several years, and as the president of its Common Hall or town council for several years. He also served in both the legislative and executive branches of the state government. For many years he presided over the James River Company's internal navigation improvement projects. The General Assembly named him among the charter trustees of the Richmond Academy in 1802. Twenty years later the Medical Society of Virginia elected him its second president. When he died in 1824, he was almost seventy-five years old and was said to have been Richmond's oldest inhabitant. His death evoked an unusually detailed obituary. Christian, ''Richmond'', 57-58, 545; Blanton, ''Medicine in Virginia in the Nineteenth Century'', 75-76; Richmond ''Enquirer'', Aug. 24, 1824.

<sup>52</sup> DuVal reported to Jefferson that William Foushee, James D. McCaw, James McClurg, and two other physicians performed the autopsy on Wythe's body on the day of his death. DuVal stated simply that they found "considerable inflamation in the Stomach," but he added in the same context that it was "strongly suspected" that Wythe and Michael Brown had been poisoned with yellow arsenic by George Wythe Swinney. William DuVal to Thomas Jefferson, [[Jefferson-DuVal Correspondence#William DuVal to Thomas Jefferson.2C 8 June 1806|Jun. 8, 1806]], Jefferson Papers.

<sup>53</sup> It may be highly significant that four of the fourteen witnesses were not
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severally indebted to his Excellency William H. Cabell governor or chief magistrate of the Commonwealth of Virginia, in the sum of one hundred pounds each, of their respective goods and chattels, lands and tenements, to be levied, and to the said governor and his successors, for the use of the said Common- wealth rendered: Yet upon this Condition, that if the said James McClurg, William Foushee, James D. McCaw, William Rose, Samuel McCraw, Fleming Russell, William Claiborne, William Price (Register) Nelson Abbott and Taylor Williams, shall severally make their personal appearance before the Judges of the District Court directed by law to be holden at the Capitol in this City on the first day of the next term of that Court, to give evidence on behalf of the Commonwealth against George W. Swinney, who stands accused of murder, and shall not depart thence without the leave of the said Court, this recognizance is to be void.

(Minutes signed) E: Carrington, Mayor

The depositions of the sixteen witnesses in the two proceedings of June 2 and 23 make Swinney's motives for murder clearer than other contemporary records. Obviously, that troubled knave had tried to solve more than one of his problems at once. By a single desperate deed he might forestall discovery of his forgeries, prevent any resultant reduction or cancellation of the legacy he would receive from Wythe, and claim his inheritance prematurely.

But the second Hustings Court record does not enable us to determine with finality precisely when and how Swinney committed his acts of murder. None of the testimony links arsenic with the coffee served in Wythe's cottage, according to the traditional story of the poisonings, at breakfast on Sunday, May 25. To contrary import are the depositions of Claiborne, McCraw, and Randolph. Their assertions under oath indicate that Swinney had mixed some arsenic with strawberries and that Wythe ate strawberries for supper on Saturday, May 24. Wythe's breakfast coffee may have become the supposed vehicle for the poison on the invalid ground of reasoning of the ''post hoc, propter hoc'' type. Actually, so far as we can tell,

placed under bond to be available to serve as witnesses in the forthcoming trial of Swinney on the charge of murder before the District Court. The four who were exempted from such an obligation were William DuVal, Samuel Greenhow, Edmund Randolph, and Tarlton Webb. While in some respects their testimony before the Hustings Court merely confirmed that of other witnesses, in these respects, and more especially in reference to other observations concerning which others did not testify, the evidence submitted by these four could not be omitted without weakening the case against Swinney.

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he may have consumed poisoned foods at both meals. A fatal dose of arsenic usually produces acute symptoms within about an hour after it enters the human stomach, and death usually follows within one to three days. Wythe's case was not a typical one in the latter respect, and we have scant cause to assume that it was a normal one in the former respect. Fatal dosages of arsenic have been known in rare instances to cause no symptom for as many as twelve hours, particularly if the poison was ad- ministered in solid rather than liquid form and if a full meal was consumed with it; and death has been known to result as much as two weeks after the appearance of symptoms, as it did in Wythe's case. An inexperienced, experimenting Swinney may have underestimated on May 24 the amount of arsenic required to accomplish his premeditated purpose. He may have awaked the next morning to find that his attempt of the previous afternoon or evening had failed. He may then have added a second and larger quantity of arsenic to the breakfast menu. Neither this nor any alternative possibility can be proved conclusively from the available evidence.

More important than questions about details of that sort is the official record's revelation of the limited, inconclusive nature of the physicians' findings in the two autopsies. They did not exhaust every means known to the medical scientists and chemists of their generation to determine whether or not the deaths of Michael Brown and George Wythe had been unnatural ones. One authoritative treatise, for example, published in 1832 but embodying comparatively little that had been learned since 1806, devoted fully a hundred pages to its discussion of arsenic poisoning, forty of them to various definitive tests by which the presence of arsenic can be determined. Its author commented on the ease with which that almost tasteless and odorless chemical element could be procured in various forms and compounds and could be administered surreptitiously. Then he added,

"It is fortunate, therefore, that there are few substances in nature, and perhaps hardly any other poison, whose presence can be detected in such minute quantities and with so great certainty."<sup>54</sup> The inflamed tissues observed by the Richmond doctors were ambiguous. The same kind of examination today would do little more, if any, to pin down positively the cause of such deaths, for gastrointestinal inflammations of quite similar

<div style="font-size: 85%;">
<sup>54</sup> Robert Christison, ''A Treatise on Poisons, in Relation to Medical Jurisprudence, Physiology, and the Practice of Physic'' (2d ed., Edinburgh, 1832), 223. This volume's treatment of arsenic poisoning covers pp. 223-324.
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appearance can result from any of several distinct causes, both natural and unnatural. The Richmond physicians' post-mortem inspections should not have ended short of a few simple laboratory procedures. Standard analyses of that kind would almost certainly have proved beyond question whether or not arsenic had ended the lives of the youthful Michael Brown and the aged George Wythe.

The above testimony in both of the suits of the Commonwealth ''v.'' Swinney confirms an undisputed conclusion reached by all who have ever studied the matter: Wythe himself became fully convinced on his death- bed that Swinney was a forger and a murderer. Yet, in fact, that young man escaped legal punishment for both offenses. His road to freedom was, however, a tortuous one. Sometime during the summer of 1806 the charges against him were referred to a grand jury. It returned true bills. Thus it became the third judicial body to render a verdict of guilt against Swinney on each accusation, for the same conclusion had already been reached on each count by one or more of Richmond's magistrates and by the Hustings Court. Specifically, the grand jury cleared the way for the trial of Swinney by the District Court on each of six distinct indictments—one for the murder of Wythe, another for that of Michael Brown, and four for forgeries of Wythe's name on as many checks.<sup>55</sup>

On September 2, 1806, the District Court proceeded to tackle what the [[Respectfully Dedicated to the Legislature of Virginia|Richmond ''Enquirer'']] termed "the celebrated trial of George W. Sweeney, on the charge of administering arsenic to his great Uncle the venerable George Wythe." Judges Joseph Prentis and John Tyler, Sr., whose son of the same name was destined to become the tenth President of the United States, were the two members of Virginia's General Court assigned to preside over this session in the Richmond district.<sup>56</sup> Presumably, the two judges' judicial robes hid the mourning bands of crape that they and other members of the General Court had resolved to wear on their left arms for three months in tribute to the jurist Virginia had lost.<sup>57</sup> At the

<div style="font-size: 85%;">
<sup>55</sup> There is no record of any decision in regard to the other two checks that William Dandridge and Peter Tinsley had testified were, in the opinions of Dandridge and Wythe, also forged.

<sup>56</sup> [[Richmond Enquirer, 9 September 1806|Richmond ''Enquirer'', Sept. 9, 1806]].

<sup>57</sup> Ibid., Jun. 24, 1806; [[Virginia Argus, 17 June 1806|Richmond ''Virginia Argus'', Jun. 17, 1806]]; Richmond ''Impartial Observer'', Jun. 21, 1806. The Governor and Council had resolved on Jun. 14, "in honour of the deceased," to wear black bands similarly for one month as an "outward Sign of respect to his memory." Journals of the Council of Virginia (MSS. in the Virginia State Library), XXVII, 448. When the Virginia General Assembly convened in Dec., 1806, its members also resolved unanimously to "wear a badge of
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prosecuting attorney's table sat Philip Norborne Nicholas,<sup>58</sup> the popular young Attorney General of Virginia and successful leader in recent years of the Jeffersonian Republican party in the state. Nicholas had known Wythe while the Chancellor had still resided in Williamsburg. More recently they had been associated in various legal and political activities. Presumably, Nicholas had every reason to prosecute the case with all the vigor at his command.

But the shocked, incensed atmosphere of June had doubtless grown calmer by September, and impressive talents had been aligned on Swinney's side as counsel for the defense.<sup>59</sup> One of these lawyers was the same Edmund Randolph who had written the codicil disinheriting Swinney, the same Randolph who had given damaging testimony against him in the Hustings Court. The other lawyer at Swinney's side was the same William Wirt who had expressed a hope that no attorney would be found to defend him, so that he would be left to suffer the fate he deserved.

Wirt had been contemplating at the beginning of the summer a desire to move from Norfolk to Richmond, for his wife found Norfolk's summers unbearable. He had concluded at that distance within a month after Wythe's death that Swinney could conceivably be innocent of murder. Judge William Nelson of the General Court had told him that "there was a difference of opinion" among Richmond doctors as to the cause of the Chancellor's death and that "the eminent McClurg, amongst others, had pronounced that his death was caused simply by bile and not by poison." Then a brother of Swinney's distressed mother had traveled eastward to implore Wirt to serve as an attorney for the defense.<sup>60</sup>

Although Wirt had already decided before that visit that "it would not be so horrible a thing to defend" Swinney "as, at first, I had thought it," the plea made by his uncle posed a problem of conscience and of reputation. By letter Wirt asked his wife, "What shall I do?" And then he proceeded to influence her decision. "If there is no moral or professional impropriety in it, I know that it might be done in a manner which would avert the displeasure of every one from me, and give me a splendid ''debut'' in the metropolis. Judge Nelson says I ought not to hesitate a moment

<div style="font-size: 85%;">
mourning" for one month. Washington, D.C., [[National Intelligencer, 15 December 1806|''National Intelligencer, and Washington Advertiser'', Dec. 15, 1806]].

<sup>59</sup> ''Ibid.''

<sup>60</sup> William Wirt to his wife, Jul. 13, 1806, Kennedy, ''William Wirt'', I, 152-153.
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to do it; that no one can justly censure me for it; and, for his own part, he thinks it highly proper that the young man should be defended. Being himself a relation of Judge Wythe's, and having the most delicate sense of propriety, I am disposed to confide very much in his opinion."'

The issue was settled within ten days. Nelson reiterated his opinion as to "the perfect propriety of the step." Mrs. Wirt evidently protested that her husband need not fear that she would suffer reproach. "I shall defend young Swinney under your counsel," he wrote her. "My conscience is perfectly clear, from the accounts I hear of the conflicting evidence."<sup>62</sup>

Records of the District Court, in which Randolph and Wirt undertook to save the life of George Wythe Swinney, are not extant; apparently they did not survive the fire that accompanied the Confederate evacuation of Richmond in April, 1865. Only from other sources can we learn whether or not the defense attorneys achieved their goal. The Richmond ''Enquirer'' reported succinctly the results of what was probably a day replete with courtroom drama and legal technicalities. "After an able and eloquent discussion" by counsel for the Commonwealth and for Swinney, read that newspaper's summary, "the jury retired, and in a few minutes, brought in the verdict of ''not guilty''. A similar indictment against him [Swinney] for the poisoning of Michael, a mulatto boy (who lived with Mr. Wythe) was quashed without a trial."<sup>63</sup>

There could have been no doubt whatsoever that Virginia's laws of 1806 defined murder by poisoning, if it were committed by a free person, to be murder of the first degree, punishable by death.<sup>64</sup>Some other ex- planation of the jury's astonishing verdict must be sought. Editor Thomas Ritchie offered his readers one hint why Randolph and Wirt had been able to win a quick decision in favor of their despised client. Some of the "strongest testimony" that had been heard by the Hustings Court and by the grand jury, Ritchie remarked, "was kept back from the petit jury" in the District Court. "The reason is, that it was gleaned from the evidence of negroes, which is not permitted by our laws to go against a white

<div style="font-size: 85%;">
<sup>61</sup> ''Ibid''. Nelson's distant kinship to Wythe was evidently through the second Mrs. Wythe, who had been a Taliaferro. See a copy of the will of Rebecca Cocke Taliaferro of "Powhatan," James City County, Nov. 12, 1810, in the possession of Colonial Williamsburg.

<sup>62</sup> William Wirt to his wife, Jul. 23, 1806, Kennedy, ''[[Life of William Wirt#Page 154|William Wirt]]'', 1, 154.

<sup>63</sup> [[Richmond Enquirer, 9 September 1806|Richmond ''Enquirer'', Sept. 9, 1806]].

<sup>64</sup> the enactments of 1796 and 1803, Shepherd, ''Statutes'', II, 5-14 and 405-406, respectively.
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man."<sup>65</sup> Actually, the reason assigned by the editor would have been more nearly true if he had phrased it more carefully. As far back as 1732 and as recently as 1801 the statutes of Virginia had stipulated that a Negro or a mulatto could be qualified as a witness only in a lawsuit brought against a Negro or a mulatto or by the commonwealth for one.<sup>66</sup> That is why Lydia Broadnax had not told the Hustings Court in June whatever she knew about the involvement of George Wythe Swinney in the deaths of Michael Brown and George Wythe.

The legal disability of Negroes to testify against Swinney had loomed large in people's thinking about the prospective trials of that ingrate for murder ever since Michael had died. Even before William Wirt learned with certainty that Wythe had also been a victim, Wirt had realized that one law might prevent the fulfillment of justice under another. "The chain of circumstances fix the guilt of Sweney beyond reach of doubt," Wirt had then been willing to assert, "but some of those circumstances, material to his conviction in a court of law, depend, it seems, on black persons, & so he will escape for the poison[ings]. he is under prosecution for the forgery & of that must be convicted."<sup>67</sup>

One logical question is answered neither by Ritchie's explanation nor by Wirt's prophecy. Why was any of the evidence that had been admissible in the three previous proceedings—evidence that had resulted in three verdicts of guilt—not presented in the District Court? No record answers that question. Possibly the District Court refused to hear some of the testimony that had been given before the Hustings Court. Evidence given by the white witnesses in June concerning what Negroes had ob-

<div style="font-size: 85%;">
<sup>65</sup> [[Richmond Enquirer, 9 September 1806|Richmond ''Enquirer'', Sept. 9, 1806]].

<sup>66</sup> The exact words of the law of 1801 were: "Any negro or mulatto, bond or free, shall be a good witness in pleas of the commonwealth for or against negroes or mulattoes, bond or free, or in civil pleas where free negroes or mulattoes shall alone be parties." Shepherd, ''Statutes'', II, 300. The statute of 1785 was to the same effect, although its provisions were couched in negative terms and omitted the words "bond" and "free" in each of the five instances of their use in the enactment of 1806. Hening, ''Statutes'', XII (Richmond, 1823), 182-183. Digests of the 1732 and 1748 statutes and of related legislation can be found conveniently in June Purcell Guild, ''Black Laws of Virginia: A Summary of the Legislative Acts of Virginia concerning Negroes from Earliest Times to the Present'' (Richmond, 1936), 154-155.

<sup>67</sup> William Wirt to James Monroe, Jun. 10, 1806, Monroe Papers, vol. XI, no. 1373. Internal evidence in this letter indicates that for the facts he stated Wirt was indebted to a communication written on Jun. 5, 1806, by his brother-in-law, Governor Cabell, and the prophecies Wirt voiced may also have reflected the Governor's thinking as of that date.
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served and had told them may have been ruled inadmissible by Judges Prentis and Tyler because of its Negro source or its hearsay nature. On the other hand, we have no proof acceptable by the ordinary standards of historical criticism that Swinney was acquitted because of the repression of the testimony Lydia Broadnax or other Negroes might have given but for Virginia's laws. Ritchie's allegation about the withholding of testimony "gleaned from the evidence of negroes" remains unsubstantiated, and Wirt's prophecy can be considered to have been merely a recognition of the flimsiness of the circumstantial evidence others would be able to give.

The simple fact remains that no known witness was able to assert in any of the four proceedings that he had actually seen Swinney put poison into food eaten by Michael Brown or by George Wythe. Moreover, no physician is known to have been willing to swear that either of the two autopsies proved that death had been caused by a poison. In other words, the evidence against Swinney was purely circumstantial.

Thomas Ritchie himself had not been hysterical in his attitude toward Swinney during the first days of resentment following the news of the Chancellor's death. The editor had remembered, sanely and circum- spectly, that the accusations against Swinney had not then been proved and that, until and unless they were, he should be presumed innocent. "Every situation in life has its rights and its duties," Ritchie had cautioned his readers. "Let us therefore respect the rights of the accused."<sup>68</sup> If Swinney's two lawyers took advantage in the District Court of every legal technicality to protect their client's rights, Ritchie should have been among the last to imply any criticism of them, for they had placed themselves under obligation to do so.

In any case, George Wythe was dead. Another man's life was at stake. It is the very genius of the legal system Wythe had received from his forefathers and had himself helped to develop and to refine that this second life should not be taken lightly. Since we do not know in detail what transpired in that Richmond courtroom on September 2, 1806, we are left in the position of being forced to accept at face value the jury's final decision, which was that Swinney had not been proved beyond reasonable doubt to have murdered George Wythe and that he was therefore ''not guilty''. Similarly, we must accept the opinion of Attorney General Nicholas that it would have been useless to try to prove beyond reasonable doubt that Swinney had murdered Michael Brown.

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<sup>68</sup> [[Richmond Enquirer, 10 June 1806|Richmond ''Enquirer'', Jun. 10, 1806]].
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Nevertheless, we can record the fact that those jurymen are the only persons known to have expressed at any time in or since 1806 an opinion that Swinney was not a murderer. William Wirt had concluded that Swinney could conceivably be innocent of the charge, but Wirt left no record now extant that he actually believed Swinney to be the victim of an unjust accusation. The common impression throughout the summer of 1806 was that Swinney had committed two premeditated murders. That opinion has remained unchanged to this day.

George Wythe Swinney had escaped death by hanging. It remained to be seen whether or not he would become permanently branded a convicted forger. Within another twenty-four hours he received a tentative answer to this second question. On Thursday, September 3, 1806, he was adjudged guilty on two of the forgery indictments.<sup>69</sup> But these verdicts were not allowed to stand unquestioned. Within ten days William Wirt pleaded successfully, "in an eloquent and ingenious speech" addressed to Judges Prentis and Tyler of the District Court, for arrest of judgment. Wirt's objections were considered acceptable by the two judges and were referred to the next session of the General Court for approval or rejection.<sup>70</sup> Wirt had changed his mind since his assertion in June that Swinney would doubtless be convicted of the forgery charges.

Someone else had come earlier than Wirt to the conclusion that the laws of Virginia would not justify inflicting punishment on Swinney for having obtained certain things of value at the state's bank by using forged signatures. Indeed, former Governor Page had decided in June that what Swinney had done at the Bank of Virginia was a crime only against God, not against any law of the Commonwealth of Virginia. "As to this young Man's Forgeries," Page had commented in highly moralistic vein but with a practical twist, "when religion is out of the way, I can see nothing in our law, that could restrain him, or any one else from a free exercise of that lucrative Employment. But for a sense of religion, I myself could not have done a better act for the Benefit of my Wife & Children, than to have . . . died . .. consoled with the pleasing reflection that I had handsomely provided for my Family, in a way permitted, nay chalked out by our Laws." <sup>71</sup>

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<sup>69</sup> [[Richmond Enquirer, 9 September 1806|''Ibid.'', Sept. 9, 1806]].

<sup>70</sup> Richmond ''Virginia Gazette, & General Advertiser'', Sept. 13, 1806.

<sup>71</sup> Page's letter continued: "I could, if under no religious impressions, tell my Wife & Children, that no one would think the worse of them for what I had done; and indeed that they would always be respected in proportion to their riches, and
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Could it be true, as Page thought he perceived, that Swinney had violated no law by his use of counterfeited signatures of George Wythe? Almost entirely so, declared the General Court in two quite technical opinions on November 17, 1806, with Judges Francis T. Brooke, Paul Carrington, Jr., Hugh Holmes, Archibald Stuart, John Tyler, Sr., and Robert White on the bench. They learned that the District Court's jury had convicted Swinney on an indictment for having obtained from the Bank of Virginia on May 27, 1806, a ''banknote'' for $100. In order to do so, he had presented to William Dandridge both a counterfeited letter and a forged check purporting to have been written and signed by Wythe. But the judges also heard that the arrest of judgment had been awarded on the ground that the forgeries of which Swinney had been accused did not actually constitute offences against a Virginia statute enacted in 1789, which was the only law the forgery indictments against him had contrived to mention.<sup>72</sup>

For one thing, William Wirt had argued that the 1789 law "was intended to punish a pre-existing evil" and could not possibly have reference to any bank, since no bank was established in Virginia until "many years" later. In the second place, Wirt contended that the law's phraseology, as well as its date, precluded any possibility of its being applied to the Bank of Virginia. The statute made illegal any deceitful deed, bill of sale, or other such document that would result in the robbery of one or more "private individuals." The bank could not properly be considered a

<div style="font-size: 85%;">
that both I and they would have been despised had I left them poor—that therefore the riches I had acquired for them would secure them respect in this World, and that as to any other, they need not trouble themselves about it—that they ought to enjoy their hearts desire in all things, and say 'let us eat & drink for tomorrow we die.' . . . But believing as I do in a divine revelation, I had rather perish with my Wife & Children through absolute Want, than that any one of us, should do one unjust or dishonest Act." John Page to St. George Tucker, Jun. 29, 1806, Tucker- Coleman Papers.

<sup>72</sup> The law that Swinney was alleged by the indictment to have broken had been adopted on Nov. 18, 1789. It was entitled "An act against those who counterfeit letters or privy tokens, to receive money or goods in other men's names." It provided that "if any person or persons, shall falsely and deceitfully obtain or get into his or their hands or possession, any money, goods or chattels of any other person or persons, by colour and means of any such false token or counterfeit letter, made in any other man's name as is aforesaid; every such person and persons so offending, and being thereof lawfully convicted in the court of the district, in which such offence shall have been committed," shall be subject to a maximum term of one year in prison and to "setting upon the pillory." Hening, ''Statutes'', XIII (Philadelphia, 1823), 22.
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"person or persons" within the meaning of the law. It was "a body corporate, an ideal body," and "no more a person, than the commonwealth of Virginia." Anything, therefore, that Swinney had obtained from the bank could not have been procured in violation of a law that made punishable the getting by false means of "any money, goods or chattels of any other person or persons." And in the third place, Wirt argued, what Swinney had received was not part of "the money or goods of the said George Wythe, because having been delivered under a check not drawn by him, the bank hath no right to charge it to his account."

In connection with the ''banknote'' in question under the first indictment, the General Court found Wirt's claims convincing enough. Its judges concluded that they should grant a permanent arrest of judgment. Thus they reversed the petit jury's verdict that Swinney was guilty; thus they pronounced him innocent of the crime alleged to have occurred on May 27. While Wythe lay on his deathbed that Tuesday, Swinney had perpetrated a forgery, but it was not an unlawful forgery.

The other indictment under which the District Court had found Swinney guilty of a violation of the same statute was quite similar to the first. The second differed in only one significant particular. It involved $50 that Swinney had obtained from the bank by the same means on April 11, 1806, in the form of ''currency''. Wirt's appeal in the District Court for an arrest of judgment had been won on the same three grounds, and they were pleaded anew as sufficient cause for making the temporary ban against sentence upon Swinney a permanent one.

In this instance the General Court did not agree. It refused to accept Wirt's argument that the "''money current''" Swinney had gotten at the bank in April could not properly be charged against the account of Wythe, by virtue of the forged check, and was therefore not Wythe's money until Swinney had acquired possession of it falsely. Evidently, Virginia's supreme tribunal for criminal law decided that neither of Wirt's first two points was valid in respect to either indictment and that the validity of Wirt's third contention depended entirely upon the natures of the two kinds of property the forger had received. In other words, the six judges' two decisions meant, essentially, that the promissory ''banknote'' Swinney obtained on May 27 had not been Wythe's "money, goods or chattels" but that the ''currency'' involved in the similar transaction of April 11 had been. If this distinction seems subtle, thin, and flimsy, it appears to have been not more so than whatever reasoning persuaded the judges to ignore
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Wirt's assertions that the 1789 law was not at all pertinent to the later means of "getting something for nothing" upon which an unconsciously clever forger had stumbled. The chagrined John Page, who had been Governor of Virginia when the state bank was established, had believed on June, 1806, that none of Swinney's forgeries was illegal. Page had been much disconcerted by his discovery that the commonwealth had not foreseen and had not prohibited such misuses of another's signature. The General Court, on the other hand, professed to believe that one of Swinney's forgeries had inadvertently violated a law more than fifteen years old and obviously designed to curb other frauds wrought by means if forgery. Consequently, the court decreed that punishment should be imposed upon Swinney under the second indictment by the District Court.<sup>73</sup>

Nevertheless, according to a report derived from official records that are not now extant, the District Court did not execute its sentence, which was that Swinney should spend one hour in the pillory at Richmond's public market and six months in prison. Contrary to the General Court's decree and for reasons inexplicable today, the District Court is said to have granted Swinney a second trial on the indictment the higher court had upheld, and then the attorney for the commonwealth declined to prosecute the case.<sup>74</sup>

Thus freed, technically at least, of all charges against him, but with a reputation he would never be able to live down locally, the "unfortunate" Swinney "then sought refuge in the West, where his career was brought to a premature and miserable close."<sup>75</sup> So reads one account, written about the middle of the nineteenth century, of the end of the life of

<div style="font-size: 85%;">
<sup>73</sup> William Brockenbrough and Hugh Holmes, ''[[Commonwealth against George Wythe Swinney|Collection of Cases Decided by the General Court of Virginia, Chiefly Relating to the Penal Laws of the Commonwealth, Commencing in the Year 1789 and Ending in 1814, Copied from the Records of Said Court, with Explanatory Notes]]'' (Philadelphia, 1815), 146-151.

<sup>74</sup> Minor, "[[Memoir of the Author]]," in Wythe, ''Decisions'', xxviii. In a footnote on that page Minor asserted: "The records of these proceedings [in the District Court after the return to it of the decree of the General Court in the last of tie suits of the Commonwealth v. Swinney] have been consulted in the office of tie Superior Court of Law for Henrico County." Minor wrote those words in or before 1852. Presumably, reorganizations of Virginia's judicial system between 1806 and 1852 account for the fact that records of the District Court in Richmond for its Apr., 1807, term (the first session it was scheduled to have after the Nov., 186, term of the General Court) had come by 1852 into the custody of the Superior Court of Law for Henrico County. The fire in Richmond during April 2-3, 1865, apparently explains their disappearance.

<sup>75</sup> ''Ibid''.
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the young man to whom George Wythe had been "kinder than a Father."<sup>76</sup> According to the memory of another Richmonder fifty years after George Wythe Swinney had been a defendant in the capital's courtrooms, Swinney went to Tennessee, stole a horse, served a term in a penitentiary, and was "then lost sight of."<sup>77</sup> The forgeries that preceded and led directly to the death of George Wythe may not have been plainly and provably crimes against the Commonwealth of Virginia. But they served one useful purpose, for they pointed out a glaring loophole in Virginia's laws. The state acted promptly to plug that gap. On the last day of the same year the General Assembly adopted and put into immediate effect "An ACT to punish certain thefts and forgeries." That law clearly defined as a crime every deed by which any person should "fraudulently obtain, or aid or assist in obtaining from the Bank of Virginia, or any of its offices of discount and deposit, any bank or post note, or money, by means of any forged or counterfeit check or order whatsoever, knowing the same to be forged or counterfeited." Violators of the new statute, when they were properly found guilty in court, were to be imprisoned for "not less than two, nor more than ten years."<sup>78</sup>

In the final analysis, we may guess, George Wythe Swinney escaped death on the gallows because of three considerations. One of these seems to be the forgiveness Wythe himself gave him. That could not alter one whit Swinney's legal liability to pay the penalty for murder, but it may have influenced, both consciously and unconsciously, the men who prosecuted and defended Swinney, those who testified, the judges who decided what evidence was admissible, and the twelve "good men and true" who retired to a jury room in the September trial. A second determining factor probably was the failure of the physicians to perform complete autopsies and thus to be prepared to assert unequivocally on the witness stand that, in their professional judgments, the deaths of Michael Brown and George Wythe had been caused by arsenic poisoning. Such testimony would have become, quite possibly, the "clincher" that would have strengthened the

<div style="font-size: 85%;">
<sup>76</sup> William DuVal to Thomas Jefferson, [[Jefferson-DuVal Correspondence#William DuVal to Thomas Jefferson.2C 4 June 1806|Jun. 4, 1806]], Jefferson Papers.

<sup>77</sup> Dove, "[[Memoranda Concerning the Death of Chancellor Wythe|Memoranda]]." Although Minor accepted Dr. Dove's recollections they are so untrustworthy in matters that can be checked that the unsubstantiated statements concerning Swinney's life after he escaped the clutches of the law in Richmond made by both Dove and Minor must be considered traditionary rather than supported by valid evidence.

<sup>78</sup> Shepherd, ''Statutes'', III, 289.
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web of circumstantial evidence against Swinney enough to put a knotted rope around his neck. A third presumed factor was inherent in Anglo-American jurisprudence. The doctors and other Virginians who participated as witnesses, attorneys, jurymen, and judges in Swinney's final trial for murder were honorable men. They cleared him of the accusation because, evidently, they thought it important to save the life of a young man who ''might'' be innocent, although he certainly seemed not to be. George Wythe himself would doubtless have had the same respect for the legal principle of a reasonable doubt.

Did Virginia justice suffer a miscarriage in 1806? For want of complete records, we cannot properly lift our second-guessing voices to cry that it went wrong. But we can agree heartily with the opinion held by Wythe himself and never relinquished by most of his sympathetic but straightforward contemporaries—the belief that, by every standard other than the technical ones of the law, Swinney had assuredly done serious wrongs. Like Wythe's survivors, we can only take comfort in the fact that Virginia justice may have avoided adding another wrong to Swinney's and in the fact that his chief victim, Chancellor Wythe himself, the "Virginia Socrates" and the "American Aristides," had achieved on his deathbed, by revoking his generous bequests to Swinney, one final act of obvious equity.
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==See also==

*[[Commonwealth against George Wythe Swinney]]
*[[Honest Lawyer]]
*[[Hustings Court Minutes]]
*[[Hustings Court Order Book]]
*[[Jefferson-DuVal Correspondence]]
*[[Life of William Wirt]]
*[[Memoir of the Author]]
*[[Memoranda Concerning the Death of Chancellor Wythe]]
*[[Murder of George Wythe]]
*[[National Intelligencer, 15 December 1806]]
*[[Richmond Enquirer, 8 July 1806]]
*[[Richmond Enquirer, 10 June 1806]]
*[[Richmond Enquirer, 9 September 1806]]
*[[Virginia Argus, 10 June 1806]]
*[[Virginia Argus, 17 June 1806]]
*[[Virginia Argus, 25 June 1806]]
*[[Virginia, June General Court, 1806]]

==References==
<references/>

==External links==

*[https://oieahc.wm.edu/ Omohundro Institute of Early American History and Culture]

[[Category:Biographies (Articles)]]
[[Category:Murder of George Wythe]]

Examinations of George Wythe Swinney for Forgery and Murder

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{{DISPLAYTITLE:"Examinations of George Wythe Swinney for Forgery and Murder: A Documentary Essay"}}
[[File:WilliamAndMaryQuarterlyOctober1955Wythe.jpg|thumb|right|400px|Engraved portrait [[George Wythe]] by [[Depictions of Wythe|J.B. Longacre]], from the ''William and Mary Quarterly,'' 3rd ser., 12, no. 4 (October 1955), 512.]]

Wythe scholar W. Edwin Hemphill contributed to a special issue of ''The William and Mary Quarterly'', dedicated to the murder of [[George Wythe]], in October, 1955. The issue was published in accordance with the Marshall-Wythe celebration at the [http://law.wm.edu/ College of William & Mary Law School] on September 25, 1954, for the bicentennial of [[John Marshall|John Marshall's]] birth. The journal pairs Hemphill's essay on "[[Media:HemphillExaminationsOfGeorgeWytheSwinneyOctober1955.pdf|Examinations of George Wythe Swinney for Forgery and Murder]],"<ref>W. Edwin Hemphill, "Examinations of George Wythe Swinney for Forgery and Murder: A Documentary Essay," ''William and Mary Quarterly'' 3rd ser., 12, no. 4 (October 1955), 543-574.</ref> with another by [[wikipedia:Julian P. Boyd|Julian P. Boyd]], "[[Murder of George Wythe]]."<ref>Julian P. Boyd, "[[Media:BoydMurderOfGeorgeWytheOctober1955.pdf|The Murder of George Wythe]]," ''William and Mary Quarterly'' 3rd ser., 12, no. 4 (October 1955), 513-542.</ref> Hemphill had rediscovered witness testimony given for [[Death of George Wythe#Sweeney's Trial|Sweeney's murder trial]] in 1806, and both authors made use of this new information.

Hemphill and Boyd's work was published as a pamphlet reprint the same year, under the title: [https://catalog.swem.wm.edu/law/Record/343766 ''The Murder of George Wythe: Two Essays''] (Williamsburg, VA: [https://oieahc.wm.edu/ Institute of Early American History and Culture,] 1955).

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==Article text, October 1955==
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'''Examinations of George Wythe Swinney<br />for Forgery and Murder: A Documentary Essay'''<br />W. Edwin Hemphill*
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“I SHUDDER when I think of it." Thus wrote [[wikipedia:John Page (Virginia politician)|John Page]] three weeks after the death of [[George Wythe]] in Richmond on June 8, 1806.<sup>1</sup> Less than a year and a half had elapsed since a "numerous concourse" of Jeffersonian Republicans had gathered at the Washington Tavern in the capital on March 4, 1805, to celebrate the second inauguration of [[Thomas Jefferson]] as the President of the United States. On the joyous occasion of the party's victory banquet Governor Page had asked Judge Wythe to retire and had then proposed a volunteer toast to "George Wythe, distinguished alike for his wisdom and integrity as a magistrate, and his zeal and disinterestedness as a patriot." The tavern's hall had resounded with nine cheers—as many as were given in response to any prearranged or spontaneous toast, even that to the President himself.<sup>2</sup> Nine months later Page had retired from the governorship.

As he sat at his writing desk late in June, 1806, amid the peace and security of "Rosewell," his magnificent home in Gloucester County, John Page reflected upon the saddening, disheartening news he had heard during a recent trip to Richmond. [[William DuVal]], George Wythe's nearest neighbor, had told Page how their mutual friend had suffered and had died—and how very suspect certain circumstances preceding that death seemed. But nothing had yet been proved. So the circumspect Page scribbled to another friend an outburst that was more a sermon than a digest of the evidence. "I know only enough" about the "horrid tale," he remarked in his letter to St. George Tucker, one of Wythe's students and the judge who had succeeded Wythe in the chair of law in the College

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* Mr. Hemphill is Managing Editor of ''Virginia Cavalcade'' and a member of the staff of the Virginia State Library. These depositions were discovered by Mr. Hemphill and are now printed for the first time in this issue of the ''Quarterly''.

<sup>1</sup> John Page to [[St. George Tucker]], Jun. 29, 1806, Tucker-Coleman Papers, Colonial Williamsburg.

<sup>2</sup> Richmond ''Enquirer'', Mar. 8, 1805.
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[[File:BoydHemphillMurderOfGeorgeWytheTwoEssays1955.jpg|thumb|right|400px|Title page from Boyd and [[Examinations of George Wythe Swinney for Forgery and Murder|Hemphill's]] pamphlet reprint, [https://catalog.swem.wm.edu/law/Record/343766 ''The Murder of George Wythe: Two Essays''] (Williamsburg, VA: Institute of Early American History and Culture, 1955).]]
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of William and Mary, "to shock my Soul." But the former Governor could not forbear comment along other lines. The murder of Chancellor Wythe, he exclaimed, made him "feel for humanity—and the wounded honor of my Country!"<sup>3</sup>

[[wikipedia:William H. Cabell|Governor William H. Cabell]], Page's successor, was also distressed. He reminded one of his sisters-in-law of their experience when they had visited a Miss Nelson, who had then been living in the modest Richmond home of her uncle, the widowered, scholarly Chancellor. "She and all of us were almost children, and few grown men would have found any interest in staying in the room where we were. But the good old gentleman brought forth his philosophical apparatus and amused us by exhibiting experiments, which we did not well comprehend, it is true, but he tried to make us do so, and we felt elevated by such attentions from so great a man."<sup>4</sup>

The up-and-coming [[wikipedia:William Wirt (Attorney General)|William Wirt]], who had served for a year in a judicial office coordinate with that of the victim,<sup>5</sup> wrote from Norfolk to [[wikipedia:James Monroe|James Monroe]], who was abroad, in indignant terms about the "dose of arsenick administered" to "poor old Chancellor Wythe."<sup>6</sup> Five weeks later Wirt could assure his absent wife, "I dare say you have heard me say that I hoped no one would undertake the defence of [the accused, George Wythe] Swinney, but that he would be left to the fate which he seemed so justly to merit."<sup>7</sup>

The editor of a Richmond newspaper was upset enough to describe his news announcement of the death as a "painful task."<sup>8</sup> An editor in Raleigh, North Carolina, was told "by a gentleman lately from Rich-

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<sup>3</sup> John Page to St. George Tucker, Jun. 29, 1806, Tucker-Coleman Papers.

<sup>4</sup> William H. Cabell to Mrs. William Wirt (undated), quoted in John Pendleton Kennedy, ''[[Life of William Wirt#Page 151|Memoirs of the Life of William Wirt, Attorney General of the United States]]'' (Philadelphia, 1849), I, 151-152. Hereafter cited as Kennedy, ''William Wirt''.

<sup>5</sup> Ambitious for wealth, Wirt found his position as judge of the Superior Court of Chancery for the Eastern District irksome, its salary barely adequate in view of his second marriage, which took place in September, 1802. It "is possible," he observed wryly, "that I may, like Mr. Wythe, grow old in judicial honors and Roman poverty. I may die beloved, reverenced almost to canonization by my country, and my wife and children, as they beg for bread, may have to boast that they were mine." [[Life of William Wirt|William Wirt to Dabney Carr]], Feb. 13, 1803, ''ibid.'', 95. In May, 1803, Wirt returned to the practice of law as an attorney, with his residence and headquarters in Norfolk. ''Ibid.'', 87-101.

<sup>6</sup> William Wirt to James Monroe, Jun. 10, 1806, Monroe Papers, vol. XI, no. 1373, Library of Congress.

<sup>7</sup> William Wirt to Elizabeth Gamble Wirt, Jul. 13, 1806, Kennedy, ''[[Life of William Wirt#Page 152|William Wirt]]'', 1, 152-153.

<sup>8</sup> [[Virginia Argus, 10 June 1806|Richmond ''Virginia Argus'', Jun. 10, 1806]].
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mond" about the crime and was thus enabled to "scoop" the world by publishing the first printed details, albeit inaccurate ones, of the "circumstances of this horrid transaction."<sup>9</sup> Newspapers as far away as Boston recorded its effect.<sup>10</sup> Richmond's press devoted an apparently unprecedented amount of space to the modest, touching, but reserved funeral oration by [[William Munford]]<sup>11</sup> and to laudatory tributes received as anonymous communications to the editors; the total aggregated what seems to have been more column inches of eulogy than had been elicited in Virginia newspapers by the death of George Washington or by that of any other person.<sup>12</sup>

Washington's imaginative, opportunistic biographer, Mason Locke Weems, seized upon news that had "quite galvanized" the "very young and tender hearted" in Charleston, South Carolina, as excuse enough for a discursive essay. That itinerant book-peddler described himself as "getting now to be a little oldish . . . , and daily, as becomes a stranger in Charleston, at this season, looking out for a squall of the same sort." Weems viewed with equanimity the fact that "death, by a touch of his old thresher, with equal ease, brings down a Chancellor or a cherry." He professed no grief over the death of the Virginian he portrayed as "[[Honest Lawyer|The Honest Lawyer]]." On the contrary, the effusive "Parson" enjoined joy "that this veteran of the law, after a life of glorious toil, to revive the golden age of justice on earth, was returned to the high courts of heaven-not

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<sup>9</sup> Raleigh, N. C., ''Minerva'', Jun. 16, 1806.

<sup>10</sup> Boston, Mass., ''Gazette'', Jun. 19, 1806, and ''Columbian Centinel'', Jun. 21, 1806.

<sup>11</sup> After the death of Wythe's second wife in 1787, William Munford (1775-1825) had lived in Wythe's home in Williamsburg and had been a special object of Wythe's generous attentions to youth. Grateful, Munford named his oldest child George Wythe Munford "after my old friend and benefactor the Chancellor." William Munford to his sister-in-law, Mrs. Mary R. Preston, Jan. 10, 1803, Munford- Ellis Papers, Duke University Library. Munford, his heart "torn with sorrow," then accepted the Council of State's assignment to preach the funeral oration, partly because "the ties of gratitude to that best of men, for the extraordinary kindness he ever manifested towards me, ought to prohibit my suffering him to go to his grave without an Eulogy." William Munford to Governor William H. Cabell, Jun. 8, 1806, Executive Papers, Virginia State Library. The funeral oration by Munford was printed in its entirety by two Richmond newspapers: Richmond ''Enquirer'', Jun. 13 and 17, 1806; Richmond ''Virginia Argus'', Jun. 17, 1806.

<sup>12</sup> See issues of the ''Enquirer'', the ''Impartial Observer'', the ''Virginia Argus'', and the ''Virginia Gazette, & General Advertiser'' during the first three or four weeks after Jun. 8, 1806. The author's comparison is based upon impressions rather than upon actual counts of the space allotted by Richmond editors to obituaries, eulogies, etc., for Wythe and for such other distinguished citizens as George Washington, who had died in 1799, and Edmund Pendleton, who had died in 1803.
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pale and trembling . . . , wet with widows' tears, and blood of murdered patriots, to meet the tear-avenging God; but bright in conscious integrity, with hands pure as the sweet palms which press the alabaster bottles of life, and in robes of innocence, snow-white as those that angels wear, to meet the smiles of the Judge Supreme, and the acclamations of brother saints innumerable."'<sup>13</sup>

Celebrants of the Fourth of July in 1806 drank toasts to the memory of George Wythe.<sup>14</sup> Restricted to severe brevity by that social form of tribute, those who gathered for the Fourth at Lexington, Kentucky, remembered Wythe simply as "a faithful labourer in the vineyard of the republic."<sup>15</sup> There the orator of the day was Henry Clay, who until his own death remained proud of the fact that he had been associated with Wythe's court during the 1790's. Indeed, young Clay had been the amanuensis who transcribed for publication the Chancellor's annotated decisions, confusingly peppered though they were with Greek phrases Clay had been able neither to understand nor to write well.<sup>16</sup> Saddened by the news that had plunged Richmond into mourning (news that had just reached Lexington), Clay made his address "short and impressive."<sup>17</sup>

The sense of revulsion felt throughout the country crossed party lines as well as state lines. A Federalist organ in the nation's largest city copied from the Richmond ''Enquirer'' two paragraphs of Republican editor Thomas Ritchie's shocked obituary. To those paragraphs it appended the Petersburg, Virginia, ''Republican's'' pointed comment: "It is generally believed, that this patriot, has been brought to the grave, by means, the 'most foul, base and unnatural,' and that the accused is to undergo an examination."<sup>18</sup> Even a modern interpreter of the Old Dominion cites the felony as the worst example of the cussedness—or something worse—

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<sup>13</sup> M. L. Weems, "[[Honest Lawyer|The Honest Lawyer: An Anecdote]]," Charleston, S. C., ''Times'', Jul. 1, 1806.

<sup>14</sup> [[Richmond Enquirer, 8 July 1806|Richmond ''Enquirer'', Jul. 8, 1806]].

<sup>15</sup> Lexington ''Kentucky Gazette'', Jul. 5, 1806.

<sup>16</sup> Henry Clay to B. B. Minor, May 3, 1851, printed in Benjamin Blake Minor, '[[Memoir of the Author]]," in George Wythe, ''Decisions of Cases in Virginia, by the High Court of Chancery, with Remarks upon Decrees, by the Court of Appeals, Reversing Some of Those Decisions'' (2d ed., B. B. Minor, ed., xxxii-xxxvi. Richmond, 1852), Hereafter cited as Wythe, ''Decisions''.

<sup>17</sup> Bernard Mayo, ''Henry Clay, Spokesman of the New West'' (Boston, 1937), 208-209.

<sup>18</sup> Philadelphia, Pa., ''Poulson's American Daily Advertiser'', Jun. 17, 1806. This newspaper attributed the remark to the Petersburg ''Republican'' of an unspecified date.
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that she attributes to Virginians.<sup>19</sup> The murder of George Wythe took at the time top or high rank among the state's most heinous crimes. It still does.

Inevitably, the revolting affair created quite a stir, for people ''will'' talk. Throughout the week before the prostrated Wythe's last breath set the bells of Richmond a-tolling, his death was a foregone conclusion. People marveled that a man of his age could so long survive the excruciating agonies of so insidious and lethal a poison. While Wythe still suffered, strong suspicion was aroused. Circumstances and tangible evidence converted suspicion into conviction at least seven days before the poison produced its ultimate effect upon the Chancellor's strong constitution.

The suspect was as undoubted as was the conclusion that Wythe was a victim of premeditated murder by means of arsenic. Invariably the slayer was identified as the venerable patriot's teen-aged grandnephew and namesake, George Wythe Swinney, an ingrate who had already proved himself unworthy of the home and education he had enjoyed for several years under the hip roof of the Chancellor's unpretentious cottage. Had not that young reprobate stolen books and money from his too-trusting benefactor? Had he not forged checks against his patron's bank account? And had it not been generally known, doubtless by Swinney himself, that he was the chief heir to Wythe's estate, a modest one but doubtless large enough to provide some relief to a culprit in financial difficulties? So, people said, he had placed his fatal dose in the breakfast coffee served in the unsuspecting household on Sunday morning, May 25. Immediately after that meal the good old judge and two freed Negroes had become critically ill. Lydia Broadnax, the Chancellor's faithful cook and servant, recovered. Michael Brown, the mulatto lad to whom Wythe had personally been giving a classical education—Greek and all—as a practical experiment in testing and developing the intelligence of Virginia's other race, had died on the next Sunday, June 1. The Chancellor himself lived in torment—and perhaps toward the end in a merciful coma—through a second week, but he died on the second Sunday morning, June 8. Fortunately, however, he did not expire before he had altered his will to disinherit the villainous Swinney.

Such is the traditional account of the death of Wythe—a paraphrase expanded to greater length than any known to have been written within the next two weeks, doubtless shorter than many conversational versions

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<sup>19</sup> Virginia Moore, ''Virginia Is a State of Mind'' (New York, 1943), 190-191.
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of the time, and certainly embodying the contemporary explanations of the timing, the method, and the motive of the murderer of Michael Brown and George Wythe.<sup>20</sup> This story of the baneful circumstances has persisted ever since 1806. In its retellings it has undergone normal embellishments and amendments. Developments not fully understood when they occurred gave the tale a poor foundation at the start. The recollections of its original narrators grew more and more subject to error with the passing years. Family traditions, transmitted orally, added details and supplied conversations that seem more logical than they are trustworthy. Fanciful emphases and interpretations have been born of assumptions, not of research.

The only substantial modification, however, has been a pronounced tendency to portray the poisoning of Wythe as an accident, while that of Michael Brown has remained the result of intentional murder. This alteration cannot be traced backward beyond 1850. It stems from two sources that were not independent of each other. One was the quite faulty memory of Dr. John Dove of Richmond, who claimed in 1856 that he had been "[[Memoranda Concerning the Death of Chancellor Wythe|present during the sickness & death of Judge Wythe]]." Dove alleged that the Chancellor had been ill before May 25, 1806, and that Swinney had not expected him to eat breakfast that Sunday morning where the poisoned coffee was to be served. The other source was Benjamin Blake Minor, editor of the ''Southern Literary Messenger'', who contributed a biographical sketch to the second edition of the Chancellor's ''Decisions'' (1852). Minor talked with Dr. Dove, who undoubtedly told him something to the effect that Swinney had "vowed vengeance" only against the mulatto boy; and

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<sup>20</sup> Evidently the earliest summaries of the circumstances now extant are in the reliable letters written by William DuVal to Thomas Jefferson on [[Jefferson-DuVal Correspondence#William DuVal to Thomas Jefferson.2C 4 June 1806|Jun. 4 and 8]], preserved in the Jefferson Papers, Library of Congress. Neither attributes to the poisonings a plain method or motive. The earliest written statement as to motivation and method is apparently to be found in the letter of Jun. 10, 1806, from William Wirt in Norfolk to James Monroe, Monroe Papers, vol. XI, no. 1373. That letter was written before Wirt had learned of Wythe's death. Internal evidence in Wirt's letter indicates that the allegations it relayed were based exclusively on information written on Jun. 5, in a letter that has not been found, by Governor William H. Cabell, his brother-in-law. A later account is in the brief, less specific recollection recorded by Littleton Waller Tazewell, who wrote that "it was generally believed" that Wythe's death "was produced by poison, administered in his coffee, by a reprobate boy, a relation of his who he had undertaken to educate, and who was afterwards convicted of having committed many forgeries of checks in his patrons name." "Sketches of his own family, written by Littleton Waller Tazewell, for the use of his children. Norfolk. Virginia. 1823" (MS. in the Virginia State Library), 121.
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Minor found what seemed to him to be sufficient substantiation in Wythe's will and two of its codicils, which made Swinney the residuary legatee of bequests to Michael Brown.<sup>21</sup> Until now the only serious analysis of the traditional account of Wythe's death and of the Dove-Minor misinterpretation has been that of Julian P. Boyd. His lucidly reasoned booklet on ''[[Murder of George Wythe|The Murder of George Wythe]]'' assayed them chiefly by the test of comparison with information found in seven previously unexploited letters written in 1806 to President Jefferson by Wythe's intimate friend and executor, William DuVal.<sup>22</sup>

But other and even better contemporary records are also extant, and it is good that the ''William and Mary Quarterly'' affords space in this issue both for them and Dr. Boyd's thoughtful interpretation, now relatively unavailable. Chief among these additional documents are official court records of the preliminary trials of George Wythe Swinney for forgery and murder. Like pirates' gold buried in a forgotten pit, they lay neglected through more than a century and a quarter despite recurrent curiosity about Wythe's tragic death. These legal records, discovered by the present writer a number of years ago and now published for the first time, contain precious nuggets of authentic information. They include digests of the sworn testimony of sixteen witnesses for the prosecution against Swinney. They add up to a convincing indictment of him. The discovery was made in the office of the Clerk of the Hustings Court of the City of Richmond,<sup>23</sup> where the documents lay within the

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<sup>21</sup> Both of the phrases quoted above are from Dr. Dove's recorded recollections, which are replete with provable errors and must be considered wholly suspect. "[[Memoranda Concerning the Death of Chancellor Wythe|Memoranda concerning the death of Chancellor Wythe]]—Signed in the Aut[o]-g[rap]h. of T[homas]. H. Wynne and rec'd by him from Dr. John Dove, Sept. 16, 1856," MS. in the Brock Collection, Henry E. Huntington Library and Art Gallery. Hereafter cited as Dove, "Memoranda." For evidence that John Dove, M.D., was a Richmond practitioner from about 1822 to about 1852, see Wyndham B. Blanton, ''Medicine in Virginia in the Nineteenth Century'' (Richmond, 1933), 48, 76, 91, 238, 240. For evidence that Dove influenced Minor directly, see Minor, "[[Memoir of the Author]]," in Wythe, ''Decisions'', xxvii.

<sup>22</sup> Julian P. Boyd, ''[[Murder of George Wythe|The Murder of George Wythe]]'' (Philadelphia, 1949).

<sup>23</sup> Binder's title "[[Hustings Court Order Book|Order Book No. 6, 1804-1806]]," 464-465, 482-488. Rough drafts of the records for these two cases of the Commonwealth v. Swinney—drafts identical to the final ones in every important respect—can be found in the same office in the volume given the binder's title of "[[Hustings Court Minutes|Minutes No. 3, 1802-1806]]" (MS. with pages not numbered) under dates of Jun. 2 and 23, 1806, respectively. Microfilm copies of both the Minute Book and the Order Book are available in the Virginia State Library. The final drafts of the two documents have been transcribed from the Order Book for publication below.
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domain of the very court to which the laws of Virginia prevailing in 1806 required that such an offender in Richmond as Swinney should be brought first for any trial of which an official record would have been kept. When Richmond had been incorporated in 1782, it was made a unit of local government. The General Assembly had provided by law for the annual election of twelve citizens to serve in their spare time as municipal officials. Half of them were to constitute a legislative Common Council. The remaining six—a mayor, a recorder, and four aldermen—were commanded "to hold a court of hustings" each month. Its jurisdiction in Richmond corresponded to that of a county court within county boundaries. Each of the judges of the Hustings Court had been vested with the powers of a justice of the peace, and they had been specifically assigned the duty "of examining criminals for all offences committed within the limits of the said corporation." If they found a defendant guilty of a serious crime, they were to refer him to a higher court for trial before professional judges and a jury.<sup>24</sup> These governmental and legal arrangements for the preservation of law and order had been modified only slightly in later statutes, but a law of 1803 had increased the membership of the Common Council to fifteen and that of the Hustings Court to nine, doubtless in recognition of Richmond's growth to a population of more than five thousand.<sup>25</sup> We shall find that not all of our questions are answered by these documents, but no searcher for the treasure-trove could reasonably have expected it to be so rich. Yet it multiplies by many times the amount of contemporary data at our disposal. It enables us to confirm some details reported unofficially at the time and to correct others. It supplies us with vivid portraits of a gloomy, wicked, and yet remorseful youth; of the last days of a questioning, then convinced, and ultimately forgiving victim; of the anxious solicitude and growing outrage of the latter's friends; and of their transition from innocent acceptance of his serious illness as a natural thing to mounting suspicion, relatively thorough investigation, and distressing proof of the poisoner's guilt. Coupled with our greater knowledge of toxicology and with other contemporary records not utilized

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<sup>24</sup> William Waller Hening, compiler, ''The Statutes at Large ... of Virginia . . .'' (Richmond, Philadelphia, New York, 1819-1823,) XI (Richmond, 1823), 45-51. Hereafter cited as Hening, ''Statutes''.

<sup>25</sup> ''Ibid.'', XII (Richmond, 1823), 407-408; Samuel Shepherd, compiler, ''The Statutes at Large of Virginia,. . . 1792, to . . . 1806 . . .'' (Richmond, 1835-1836), II, 93, 422-425, III, 73-75. Hereafter cited as Shepherd, ''Statutes''.
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by previous investigators, it affords us a surer understanding of the grim story of the unpunished forgeries and murders committed by George Wythe Swinney than was vouchsafed to any of the people who mourned the death of Chancellor Wythe and sought with decreasing fervor to do justice to the cause of it—a more reliable understanding, indeed, than any of our predecessors attained.

The official record of the examination of Swinney for alleged forgery reads as follows:

At a Court of Hustings called and held for the City of Richmond at the Courthouse, on Monday, the second day of June 1806, for the examination of George W. Swinney,<sup>26</sup> who stands accused of forgery.<sup>27</sup>

Present

Edward Carrington, Gentleman, Mayor,

Samuel Pleasants, Gentleman, Recorder,

Henry S. Shore, William Goodwin, Anderson Barret,

David Lambert and William Richardson, Gentlemen, Aldermen.

The prisoner was led to the bar in custody of the Sergeant of this City; whereupon sundry witnesses were sworn and examined, and the prisoner in his defence fully heard: On consideration whereof, the Court is of opinion that the prisoner is guilty of the offence aforesaid, and doth order that he undergo a trial therefor at the next District Court directed by law to be holden at the Capitol in this City: and it is further ordered that the said George W. Swinney be bound in a recognizance in the penalty of one thousand dollars, with suf-

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<sup>26</sup> George Wythe Swinney, whose surname occurs in contemporary records also in the form of various spellings of Sweeney, was a grandson of George Wythe's sister and hence a grandnephew of Wythe. For genealogical information concerning him and related Sweeneys see W. Edwin Hemphill, George Wythe the Colonial Briton: A Biographical Study of the Pre-Revolutionary Era (Doctoral Dissertation, University of Virginia, 1937), 40.

<sup>27</sup> Swinney had doubtless been accused of forgery as the result of a preliminary hearing before one or more of the municipal magistrates or justices of the peace, presumably within the last five days of the preceding week, May 27-31, as is indicated by the testimony of the first witness below. William Wirt enumerated a few other manifestations of dishonesty on Swinney's part that had been preludes to his climactic crime: "The young villain (only about 16 or 17) had been in the habit of robbing his uncle [i.e., his granduncle, George Wythe] with a false-key, had sold three trunks of his most valuable law-books, had forged his checks on the bank to a considerable amount, & wound up his villainies by this act [of murder]." William Wirt to James Monroe, Jun. 10, 1806, Monroe Papers, vol. XI, no. 1373.
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ficient security in a like penalty, for his personal appearance before the Judges of the said district Court, on the first day of the next term thereof, to answer the Commonwealth of the offence aforesaid; and failing to give the security required, he is remanded to jail until he shall give such security, or shall be otherwise discharged by the course of law.

William Dandridge (Teller of the Bank of Virginia) a witness on the foregoing examination, being sworn, deposeth and saith: That on Tuesday last [May 27], the prisoner produced to him at the bank of Virginia, a check thereon for the sum of one hundred dollars, drawn in the name of George Wythe esquire, which the deponent paid. That some time after, on examining the check, he suspected it to be a forged one, and he thereupon went to the prisoner and stated that he believed there was a mistake in said check; That the prisoner immediately produced the money and delivered the same to the deponent. That the prisoner frequently presented checks at the bank in the name of the said George Wythe; and the deponent verily believes that six checks now produced in Court were presented by the prisoner, and are all counterfeited.

Peter Tinsley,<sup>28</sup> another witness sworn on the said examination deposeth and saith: That he carried to George Wythe esquire seven checks drawn in his name on the bank of Virginia, who denied having drawn or signed more than one of them.

William Dandridge and Peter Tinsley here in Court acknowledge themselves indebted to his Excellency William H. Cabell governor or chief magistrate of the Commonwealth of Virginia, in the sum of one hundred pounds each, of their respective goods and chattels, lands and tenements, to be levied, and to the said governor and his successors, for the use of the said Common-wealth rendered: Yet upon this Condition, that if the said William Dandridge and Peter Tinsley shall severally make their personal appearance before the Judges of the District Court directed by law to be holden at the Capitol in this City, on the first day of the next term thereof, to give evidence on behalf of the Commonwealth against George W. Swinney, who stands accused of forgery, and shall not depart thence without the leave of the said Court, then this recognizance is to be void.<center>
(Minutes signed) E: Carrington Mayor<sup>29</sup>
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<sup>28</sup> Tinsley was for many years Clerk of the High Court of Chancery.

<sup>29</sup> One item of corrective evidence is brought out in this record. Unofficial reports of 1806, whenever they stated or implied a chronology for Swinney's crimes, invariably indicated that his forgeries and the discovery of them preceded his poisoning of Judge Wythe. On the contrary, Dandridge testified that Swinney was sus-
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The official record of the examination of Swinney on the charge of murder is a remarkably detailed one. Its unusual length doubtless reflects a common impression of the uncommon nature and circumstances of the alleged crime. The record reveals utter desperation on the part of an al-most deranged Swinney. It portrays the mounting growth of suspicion during illnesses that might have been provoked by merely natural causes. It embodies observations that link Swinney conclusively with ratsbane (white arsenic) and yellow arsenic. It records medical symptoms and measures that are not nice but seem necessary. And it indicates reserve on the part of three physicians when they gave under oath their professional judgments whether or not the death of George Wythe could be attributed to arsenic poisoning. This record is as follows:

At a Court of Hustings called and held for the City of Richmond at the Courthouse, on Monday, the 23d. day of June 1806, for the examination of George W. Swinney, who stands accused of murder.<sup>30</sup>
Present

The Same Justices as above.<sup>31</sup>

The prisoner was led to the bar in custody of the Sergeant of this City; where-upon sundry witnesses were sworn and examined, and the prisoner in his

<div style="font-size: 85%;">
pected for the first time of his forgeries after he had presented a sixth forged check at the bank on Tuesday, May 27. That Tuesday will be found to have been two or three days after Swinney had poisoned Wythe. On that Tuesday the Chancellor lay abed in the early stages of his mortal illness. That is one reason—and his charitable, compassionate nature may be another—for the fact that Wythe himself did not testify in court which of the seven checks "carried" to him by Tinsley he had not signed personally. Further details about the six forgeries will be revealed later in this article.

<sup>30</sup> The accusation against Swinney for the alleged murders of "Wythe & Michael Brown the Freed Boy" had resulted, in keeping with Virginia law, from a hearing held on Jun. 18 before Mayor Edward Carrington and two other magistrates or aldermen. On that occasion the examination of witnesses "lasted near Five Hours." The mayor and his two colleagues "were of Opinion that they, Mr. Wythe & Michael, were poisoned by Geo. W Sweeney." The suspect was ordered to be held in jail to await trial by the Hustings Court as a "Court of Examination" on Jun. 23. William DuVal to Thomas Jefferson, [[Jefferson-DuVal Correspondence#William DuVal to Thomas Jefferson.2C 19 June 1806|Jun. 19, 1806]], Jefferson Papers. Cf. Shepherd, ''Statutes'', III, 73-75.

<sup>31</sup> That is to say, the same six who had been present for the trials of earlier cases on Jun. 23: Mayor Edward Carrington, Recorder Samuel Pleasants, Jr., and Aldermen Henry S. Shore, Anderson Barret, David Lambert, and William Richardson. Aldermen William DuVal, William Goodwin, and Thomas Underwood did not sit as judges for this examination. DuVal attended as a witness.
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===Page 554===

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defence fully heard: On consideration whereof, the Court is of opinion that the prisoner is guilty of the offence aforesaid, and doth order that he undergo a trial therefor before the next District Court directed by law to be holden at the Capitol in this City: and thereupon the said George W. Swinney is remanded to jail.<sup>32</sup>

Tarlton Webb,<sup>33</sup> a witness for the Commonwealth on this examination, being sworn, deposeth and saith: That about a fortnight or three weeks be-fore the prisoner was committed to jail, he enquired of the deponent where he could procure any ratsbane? The deponent replied that it was against the law of the United States to have it. The day before the prisoner was apprehended,<sup>34</sup> he came to the house of the deponent's mother, and shewed the depon[en]t something wrapped in paper, which he said was Ratsbane, and in-formed the deponent that he intended to kill himself, and offered to give the deponent some if he wanted to die. The deponent being shown some drugs found in the jail and produced in Court by Mr. [William] Rose,<sup>35</sup> deposes that what the prisoner showed him was like that in Mr. Rose's possession, and that there was about one table spoonful. The prisoner stated to the deponent that he was very unhappy and something pressed upon his mind; but though applied to, would not disclose the cause of his uneasiness to the deponent.

William Rose,<sup>36</sup> another witness sworn on this examination, deposeth and

<div style="font-size: 85%;">
<sup>32</sup> The [[Virginia, June General Court, 1806|Richmond ''Enquirer'', Jun. 24, 1806]], printed the following announcement of the decision: "George W. Swinney was yesterday called before the examining court of this city, on the charge of poisoning his great Uncle, the venerable George Wythe, and a servant boy. He was unanimously remanded to jail for further trial before the district court to be had in September next." Although it was not particularly customary for crime news, especially courtroom news of this tentative sort, to be widely reprinted, this item reappeared in such representative newspapers as the Richmond [[Virginia Argus, 25 June 1806|''Virginia Argus'', Jun. 25, 1806]]; the Alexandria ''Virginia Gazette, & General Advertiser'', Jun. 25, 1806; the Washington, D. C., ''National Intelligencer, and Washington Advertiser'', Jun. 30, 1806, and ''Universal Gazette'', Jul. 3, 1806; the Augusta, Ga., ''Chronicle'', Jul. 12, 1806; and the Savannah, Ga., ''Columbian Museum & Savannah Advertiser'', Jul. 12, 1806, and ''Georgia Republican'', Jul. 15, 1806.

<sup>33</sup> This witness has not been identified positively. His testimony suggests that he was probably a youthful friend of Swinney.

<sup>34</sup> Swinney was arrested on Wednesday, May 28, or Thursday, May 29, according to testimony given in this examination by witness William DuVal, reproduced below. Webb's testimony here to the effect that Swinney told him on May 27 or May 28 that "something pressed upon his [Swinney's] mind" can be, therefore, a veiled reference by Swinney himself to worry and remorse because of the way he had used poison, with results that had not yet proved fatal, and possibly also because of the forgery committed and detected on Tuesday, May 27.

<sup>35</sup> For an identification of William Rose see the next paragraph and footnote 36.

<sup>36</sup> Rose was the public jailor of Richmond. Richmond ''Enquirer'', Jul. 8, 1817. Rose's
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===Page 555===

<blockquote>
saith: That his servant girl Pleasant, went into the garden about twelve o'clock the day after the prisoner was committed to jail and brought the paper this day produced [in court], the contents of which the deponent immediately knew to be arsenic. When the prisoner was committed to jail, the deponent did not search him; but about an hour and a half after, or thereabouts, hearing that it was probable he had pistols, he went into the jail and felt his pocket, and felt that there was a heavy substance wrapped in paper; but supposing that it might be coppers, or some few eighteen penny pieces, he did not take it out of his pocket. The prisoner had the use of the debtors room and the jail yard at his option. As soon [as] the arsenic was found the deponent suspected that Mr. Wythe was poisoned.

Samuel McCraw,<sup>37</sup> another witness sworn on the said examination, deposeth and saith; That being informed by Mr. Rose, that arsenic had been found in his garden, he proposed to have the servant carried into the garden to see the place where [the arsenic had been] found, to ascertain whether it was deposited there, or thrown from the jail yard. That at the place where the servant stated the arsenic to have been found, the deponent found two papers lying about eighteen inches apart: That the crude arsenic had penetrated a little into the earth, and there were two plants one a fennel, the other a beat [''sic''], broken off as he supposed by the throwing the arsenic over the jail wall: The deponent thinks it must have come from the jail yard. The beat [''sic''] that was wounded was next [i.e., nearer] the jail wall and was wounded considerably farther from the ground than the fennel. On the first of June, one week after Mr. Wythe's attack [began], the deponent was re-quested to go to attest [the final codicil to] Mr. Wythe's will. Mr. Wythe re-quested the prisoner's room and trunk to be searched. The deponent, with others, was conducted to the room where the prisoner lodged, opened the chest and found a port folio with a quire of blotting paper, which the deponent believes to be of the same kind with what was found wrapped round the arsenic found in the garden. In the prisoner's room on a writing table, the deponent found a paper on which were a half a dozen strawberries with the appearance of arsenic having been sprinkled over them. He found a phial with an appearance of having had a liquid, some of which adhered to the side of the phial, and on examination was believed to have been a mixture of testimony and that of the next witness make it plain that the former's residence and garden adjoined the jail.

<div style="font-size: 85%;">
testimony and that of the next witness make it plain that the former's residence and garden adjoined the jail.

<sup>37</sup> McCraw was one of the four witnesses who signed the final codicil to Wythe's will. Minor, "[[Memoir of the Author]]," in Wythe, ''Decisions'', xxxviii-xxxix.
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===Page 556===

<blockquote>
arsenic and sulphur. He also found two pieces of coarse brown paper, with something adhering to each, which was also declared to be arsenic and sulphur. The deponent frequently visited Mr. Wythe in his last illness and he appeared to be in very great agony from the first time to his death. Some time before the death of Mr. Wythe, while this deponent was sitting by him, Mr. Wythe exclaimed, cut me—the deponent supposed he wanted to have his flannel cut loose which the deponent accordingly did, but which gave apparent displeasure to Mr. Wythe, who then putting his hand to his throat and heart again called out, cut me, but could make no further explanation: this induced a belief in the deponent and those present that it was his wish to be opened after his death. The deponent never did hear Mr. Wythe express any suspicion of having been poisoned.

Fleming Russell<sup>38</sup> another witness sworn on the said examination deposeth and saith; That the day he received the warrant [for the arrest of Swinney] he went to Mr. Wythe's and found the prisoner: when he showed the prisoner the warrant and carried him to Major DuVal's & discovered he had no pistols, took his knife from him, and put his hand in his coat pocket, he felt very distinctly that he had two separate parcels of something wraped up in paper in his pocket but made no further search. After the prisoner was committed to jail, the deponent informed Mr. Rose, that the prisoner had some-thing else in his coat pocket and advised him to make a search, but did not go with Mr. Rose to make it.

Taylor Williams<sup>39</sup> a witness sworn on the said examination deposeth and saith; That about three weeks before the prisoner was apprehended, he mentioned something to the deponent about poison. The deponent informed him that copperas [i.e., crystallized ferrous sulphate] and water was poison. In about six or seven days after, the prisoner began a conversation with the deponent about poison: the deponent then told him ratsbane was poison, and that a gentleman of his acquaintance used it for the purpose of killing rats, and that [it] was to be bought in the shops, but does not recollect with certainty whether the prisoner asked him where it might be had.

Major William DuVal<sup>40</sup> another witness sworn on said examination de-

<div style="font-size: 85%;">
<sup>38</sup> This witness has not been identified. Judging from his testimony, he must have been a Richmond police officer.

<sup>39</sup> Williams appears from his testimony to have been a young friend of Swinney.

<sup>40</sup> William DuVal was of Huguenot descent, an officer during the Revolutionary War, an attorney, a member of the Virginia General Assembly, a magistrate of Richmond who had served as mayor during 1805-1806, and an intimate friend of Wythe, whose residence was also located in the square bounded by Grace, Sixth, Franklin,
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===Page 557===

<blockquote>
poseth and saith; that on the 25th day of May, he went to see Mr. Wythe, without knowing he was sick, and found him very ill[,] extended on his back. Mr. Wythe said he had not caught cold, that he was as well as usual in the morning, & eat his brea[k]fast as usual; but was immediately taken extremely ill, confined on his back except when forced up, which was upwards of forty times, and had fifteen large evacuations. After the prisoner was committed for the forgery he applied to the deponent by letter to be bailed. Mr. Wythe would have nothing to do with bailing [Swinney]. Mr. Wythe said he was taken ill on the twenty fifth day of May, about nine o'clock after having eat his break-fast; that on wednesday or thursday after, the prisoner was apprehended. Mr. Wythe requested that the prisoner's room and trunk might be searched, which request he repeated frequently, and finally on the first of June prevailed on Mr. McCraw and some other gentlemen who searched the room and trunk and found some papers with something adhereing to them which was declared by Doctor Greenhow<sup>41</sup> to be arsenic. The deponent saw the appearance of arsenic in an out house of Mr. Wythe's, in his yard, used as a shop; and [de-poseth] that some was also found in an old smoak house on a wheel barrow; which on being tried with a pin was proved to be arsenic. On thursday before Mr. Wythe's death he made an ejaculation and declared he was murdered in a low tone of voice. It was generally believed that Mr. Wythe had left the prisoner a great portion of his estate, and known that he had made some pro-vision for the mulatto boy, [Michael] Brown.

Samuel Greenhow<sup>42</sup> another witness sworn on said examination gave the same evidence upon the search of the prisoners room and trunk with McCraw.
and Fifth Streets. DuVal died in Buckingham County in 1842 at the age of 93. W. Asbury Christian, ''Richmond: Her Past and Present'' (Richmond, 1912), 57, 545; Richmond ''Enquirer'', Jan. 13, 1842, and May 13, 1842.

<div style="font-size: 85%;">
<sup>41</sup> The Greenhow to whom DuVal referred may have been the next witness, identified in footnote 42, who is known to have participated in the search of Swinney's room but is not known to have had any claim to the title of Doctor. Conceivably, on the other hand, this Doctor Greenhow may have been the Doctor James G. Greenhow who was living in Richmond in 1815. Blanton, ''Medicine in Virginia in the Nineteenth Century'', 246, 445, citing the Richmond ''Virginia Argus'', Mar. 1, 1815.

<sup>42</sup> Samuel Greenhow issued, as "Principal Agent," a call for the annual meeting in 1809 of the Mutual Assurance Society, the well-known, pioneer Virginia fire insurance company. Richmond ''Enquirer'', Dec. 24, 1808. With men like the Reverend John D. Blair, the Reverend John Buchanan, the Reverend John Holt Rice, and William Munford, Samuel Greenhow was a charter member of the Board of Managers of the Virginia Bible Society, which was organized in Jul., 1813. Christian, ''Richmond'', 87. Greenhow was one of the four witnesses who signed the final codicil to Wythe's will. Minor, "[[Memoir of the Author]]" in Wythe, ''Decisions'', xxxviii-xxxix.
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===Page 558===

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William Price<sup>43</sup> another witness sworn on said examination, gave the same evidence as McCraw and Greenhow on the subject of the search of the prisoner's room, and [substantiated the testimony] of McCraw on the subject of Mr. Wythe’s request to be cut. Mr. McCraw mentioned at that time that he supposed Mr. Wythe wanted to be cut open. Mr. Wythe appeared to be in great agony during his illness, and more particularly when moved.

Nelson Abbott<sup>44</sup> another witness sworn on said examination, deposeth and saith, that on saturday the 24th day of May last, he put an axe, now produced [in court], into a shop in Mr. Wythe’s yard, which he [Wythe] had lent him [Abbott] for a work shop; that on the 27th he went to Hanover and returned on friday the 30th when he discovered the arsenic in its present situation, and a hammer much stained with yellow, which has since been cleaned. The negroes in the shop said the prisoner had beat something they did not know what on the side of the ax with the hammer.

William Claiborne<sup>45</sup> another witness sworn on the said examination deposeth and saith: That he went to Mr. Wythe's the wednesday after his illness [began], who informed him that the Sunday preceding in the morning, he was as well as usual, immediately after breakfast he was taken with a colarimorbus [cholera morbus] and then a violent lax, went forty times that day, and had at least fifteen large evacuations: That on Saturday night he supped [i.e., on Saturday night, May 24, Wythe had supped] on milk and strawberries. Mr. Wythe said all the negroes [of his household] were taken [sick] at the same time. The deponent went into the kitchen and found most of them very ill. He then went to Major DuVal's, and expressed his opinion that the family were poisoned; and suspected the prisoner in consequence of his having been detected [on the previous day, May 27] in the forgery, as the death of Mr. Wythe before the detection could only prevent an alteration in his will which the deponent believed was much in favor of the prisoner. The deponent frequently told the prisoner that he would be well provided for by Mr. Wythe if he behaved well. After the death of the yellow boy [Michael Brown], the deponent was told by some of the negroes that arsenic was found in the outhouses. The deponent took some off the wheelbarrow in the old smoke house, applied fire to it and found from the smell that it was arsenic. The deponent asked Mr. Wythe whether the prisoner break-

<div style="font-size: 85%;">
<sup>43</sup> William Price was another of the witnesses to the final codicil to Wythe's will. Minor, "[[Memoir of the Author]]," in Wythe, ''Decisions'', xxxviii-xxxix.

<sup>44</sup> No information to identify this witness has been discovered.

<sup>45</sup> William Claiborne was the father of W. C. C. Claiborne, Governor of the Territory of Orleans. Richmond ''Enquirer'', Oct. 3, 1809.
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===Page 559===

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fasted with him the morning before he [Wythe] was taken [sick]. At first he did not answer. Afterwards he said he did not know, he [Swinney] was always called to his breakfast, but sometimes took no thing to eat or drink. Mr. Wythe observed he died in peace with all the world, and said he should leave directions for his executor to search the prisoner's trunk. This took place after the death of the boy Michael [on Sunday morning, June <sup>46</sup>], about sunset on the first of June.

[[wikipedia:Edmund Randolph|Edmund Randolph]],<sup>47</sup> being also sworn, deposeth and saith: That on Sunday the first of June about nine o'clock [A.M.], Major DuVal informed the deponent of the death of Michael from poison and [reported] Mr. Wythe as probably dying with the same. Mr. Wythe told the deponent he had supped on strawberries and milk the Saturday before he was taken ill. He wished his will to be altered so as to give to the prisoner's brothers and sisters what he had given him. The deponent made the alteration and then returned home, and afterwards went again to Mr. Wythe and informed him of the death of Michael Brown. The former codicil to the will was then destroyed and the present one made. On Wednesday the fourth of June, the deponent was in-formed by old Lydia [Broadnax] that more marks of poison had been discovered. The deponent went into the shop and saw Abbot's ax. The negro<sup>48</sup>

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<sup>46</sup> George Wythe said in the final codicil to his will, dated Jun. 1, 1806, that he had been told that Michael Brown had died that morning. Minor, "[[Memoir of the Author]]," in Wythe, ''Decisions'', xxxviii-xxxix. An almost contemporary letter also refers to Brown's death on Sunday morning, Jun. 1. William DuVal to Thomas Jefferson, [[Jefferson-DuVal Correspondence#William DuVal to Thomas Jefferson.2C 4 June 1806|Jun. 4, 1806]], Jefferson Papers.

<sup>47</sup> Edmund Randolph, the first Attorney General both of the Commonwealth of Virginia and of the United States, wrote and witnessed the final codicil to Wythe's will. See his testimony here given and Minor, "[[Memoir of the Author]]," in Wythe, ''Decisions'', xxxviii-xxxix. Randolph's career had overlapped Wythe's through the past thirty years—for example, in the Virginia conventions of 1776 and 1788. The first of the two codicils mentioned by Randolph in his testimony evidently devised to George Wythe Swinney's brothers and sisters only what Wythe had formerly bequeathed to Swinney. The second of the two codicils mentioned by Randolph devised to George Wythe Swinney's brothers and sisters everything that Wythe had formerly bequeathed both to Swinney and to Michael Brown. The will and its codicils dated Jan. 19 and Feb. 24, 1806, were proved in the General Court of Virginia on Jun. ii, 1806, by the oaths of Edmund Randolph and Peter Tinsley; and the final codicil, dated Jun. 1, 1806, was proved by the oaths of Samuel McCraw, William Price, and Edmund Randolph. For a printed copy of the will and its three validated codicils see Minor, ''ibid''. An attested manuscript copy is filed under Jun., 1806, in the Jefferson Papers.

<sup>48</sup> This reference to a certain Negro is not as precise as we might wish. Doubtless, however, Randolph talked on Jun. 4 with a Negro man employed in Nelson Abbott's workshop. Possibly this man was one of the same "negroes in the shop" who, according to Abbott's deposition, had told Abbott on May 30 that they did not
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===Page 560===

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was uncertain whether [it was on] the 24th or 26th of May, that the prisoner had caused the appearances [of poisons in the workshop]; but at last settled that it was on Saturday [May 24] when he found the prisoner in the shop, and one of the doors forced, and the prisoner was in the act of pounding some-thing on the axe. The prisoner asked him what it was? the negro replied he believed it was ratsbane. The prisoner then scraped it as clean as he could off the axe and folded it up in a piece of paper, wiping the axe with shavings. It was generally understood and believed that Mr. Wythe had left the bulk of his estate to the prisoner.

Doctor James McClurg,<sup>49</sup> another witness, being sworn, deposeth: That he was present at the opening of the body of Michael Brown. The lower part of the stomach was very much inflamed and had the appearance of the black vomit. The deponent went to visit Mr. Wythe on the day before the boy died and found him with a fever, his tongue very foul, had had no passage for twelve hours, and was free from pain. The appearance of the boy was such as arsenic might have produced; but such as might also have been produced by a great collection of bile. The deponent was also present at the opening the body of Mr. Wythe. The whole of his stomach and intestines had an uncommonly bloody appearance, that if produced by arsenic, in his [McClurg's] opinion, death would have ensued much sooner. Mr. Wythe had been frequently attacked with disordered bowells within three years last past.

Doctor James D. McCaw,<sup>50</sup> being also sworn, deposeth: That he was called ''know'' what substance Swinney had pounded into powder. In slight but not necessarily contradictory contrast, the Negro of whom Randolph testified simply ''believed'' on May 24 that the substance was ratsbane.

<div style="font-size: 85%;">
<sup>49</sup> Under the reorganization of the College of William and Mary instigated by Thomas Jefferson in 1779, James McClurg (1746-1823), Edinburgh-trained physician, had been one of Wythe's four colleagues in the faculty. For three years Dr. McClurg held the newly created chair of the professor of anatomy and medicine. Like Wythe, McClurg went to Philadelphia in 1787 to attend the convention from which emerged the Federal Constitution. McClurg was chosen to be Richmond's mayor in 1797, 1800, and 1803. For a quarter of a century he was one of the community's out-standing physicians. When the Medical Society of Virginia was organized in 1820, he was elected its first president. Although he was too infirm to take an active part in its affairs, he was re-elected in the next year. Blanton, ''Medicine in Virginia in the Nineteenth Century'', 13, 75-76; Christian, ''Richmond'', 545.

<sup>50</sup> James Drew McCaw, M.D., was one of the founders of the Medical Society of Virginia. His father, Dr. James McCaw, founded what might be called a Virginia medical dynasty destined to last five generations. Blanton, ''Medicine in Virginia in the Nineteenth Century'', 116-117, 261, 367. James D. McCaw's offer of 1802 to inoculate the poor of Richmond against smallpox had been accepted by the Common Hall or Council. Richmond ''Examiner'', Jun. 2, 1802. Judging by James D. McCaw's testi-
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===Page 561===

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to attend Mr Wythe on the 26th of May between four and five o'clock. He had been up with a violent puking & purging, and the deponent gave him an opiate, after which he got better, and was better until the discovery of the prisoner's forgery [on Tuesday, May 27], when he became worse and continued to grow worse. The deponent saw the boy [Michael Brown] on the day before his death, when he had a fever and complained of great pain. The deponent saw him opened after his death, and thinks that his death might have been occasioned by a great accumulation of bile.

Doctor William Foushee,<sup>51</sup> being sworn, deposeth: That he attended the opening of Mr Wythe's body in the presence of many other physicians.<sup>52</sup> The stomach was very much inflamed, and appeared as if a new inflamation was coming on. There was very little bile in the liver. The same appearance that his stomach and intestines exhibited might have been produced by arsenic, or any other acrid matter.

James McClurg, William Foushee, James D. McCaw, William Rose, Samuel McCraw, Fleming Russell, William Claiborne, William Price (Register) Nelson Abbott and Taylor Williams,<sup>53</sup> here in Court acknowledge themselves

<div style="font-size: 85%;">
mony, he seems to have been more nearly the family physician to the Wythe household than any of the other physicians whose names occur in records concerning the Chancellor's last illness. To be compared with the recorded testimony of Dr. McClurg and that of Dr. McCaw concerning the autopsy on the body of Michael
Brown is DuVal's letter to Jefferson: "As a Magistrate I requested four eminent Physicians to open the body of the Boy. They did so; from the inflamation on the Stomach & Bowels they said that it was the kind of Inflamation produced by Poison." William DuVal to Thomas Jefferson, [[Jefferson-DuVal Correspondence#William DuVal to Thomas Jefferson.2C 4 June 1806|Jun. 4, 1806]], Jefferson Papers.

<sup>51</sup> William Foushee, M.D., had been born in the Northern Neck in 1749. Like McClurg, he studied medicine in Edinburgh. He served as Richmond's first mayor, 1782-1783, as the town's postmaster for several years, and as the president of its Common Hall or town council for several years. He also served in both the legislative and executive branches of the state government. For many years he presided over the James River Company's internal navigation improvement projects. The General Assembly named him among the charter trustees of the Richmond Academy in 1802. Twenty years later the Medical Society of Virginia elected him its second president. When he died in 1824, he was almost seventy-five years old and was said to have been Richmond's oldest inhabitant. His death evoked an unusually detailed obituary. Christian, ''Richmond'', 57-58, 545; Blanton, ''Medicine in Virginia in the Nineteenth Century'', 75-76; Richmond ''Enquirer'', Aug. 24, 1824.

<sup>52</sup> DuVal reported to Jefferson that William Foushee, James D. McCaw, James McClurg, and two other physicians performed the autopsy on Wythe's body on the day of his death. DuVal stated simply that they found "considerable inflamation in the Stomach," but he added in the same context that it was "strongly suspected" that Wythe and Michael Brown had been poisoned with yellow arsenic by George Wythe Swinney. William DuVal to Thomas Jefferson, [[Jefferson-DuVal Correspondence#William DuVal to Thomas Jefferson.2C 8 June 1806|Jun. 8, 1806]], Jefferson Papers.

<sup>53</sup> It may be highly significant that four of the fourteen witnesses were not
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severally indebted to his Excellency William H. Cabell governor or chief magistrate of the Commonwealth of Virginia, in the sum of one hundred pounds each, of their respective goods and chattels, lands and tenements, to be levied, and to the said governor and his successors, for the use of the said Common- wealth rendered: Yet upon this Condition, that if the said James McClurg, William Foushee, James D. McCaw, William Rose, Samuel McCraw, Fleming Russell, William Claiborne, William Price (Register) Nelson Abbott and Taylor Williams, shall severally make their personal appearance before the Judges of the District Court directed by law to be holden at the Capitol in this City on the first day of the next term of that Court, to give evidence on behalf of the Commonwealth against George W. Swinney, who stands accused of murder, and shall not depart thence without the leave of the said Court, this recognizance is to be void.

(Minutes signed) E: Carrington, Mayor

The depositions of the sixteen witnesses in the two proceedings of June 2 and 23 make Swinney's motives for murder clearer than other contemporary records. Obviously, that troubled knave had tried to solve more than one of his problems at once. By a single desperate deed he might forestall discovery of his forgeries, prevent any resultant reduction or cancellation of the legacy he would receive from Wythe, and claim his inheritance prematurely.

But the second Hustings Court record does not enable us to determine with finality precisely when and how Swinney committed his acts of murder. None of the testimony links arsenic with the coffee served in Wythe's cottage, according to the traditional story of the poisonings, at breakfast on Sunday, May 25. To contrary import are the depositions of Claiborne, McCraw, and Randolph. Their assertions under oath indicate that Swinney had mixed some arsenic with strawberries and that Wythe ate strawberries for supper on Saturday, May 24. Wythe's breakfast coffee may have become the supposed vehicle for the poison on the invalid ground of reasoning of the ''post hoc, propter hoc'' type. Actually, so far as we can tell,

placed under bond to be available to serve as witnesses in the forthcoming trial of Swinney on the charge of murder before the District Court. The four who were exempted from such an obligation were William DuVal, Samuel Greenhow, Edmund Randolph, and Tarlton Webb. While in some respects their testimony before the Hustings Court merely confirmed that of other witnesses, in these respects, and more especially in reference to other observations concerning which others did not testify, the evidence submitted by these four could not be omitted without weakening the case against Swinney.

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he may have consumed poisoned foods at both meals. A fatal dose of arsenic usually produces acute symptoms within about an hour after it enters the human stomach, and death usually follows within one to three days. Wythe's case was not a typical one in the latter respect, and we have scant cause to assume that it was a normal one in the former respect. Fatal dosages of arsenic have been known in rare instances to cause no symptom for as many as twelve hours, particularly if the poison was ad- ministered in solid rather than liquid form and if a full meal was consumed with it; and death has been known to result as much as two weeks after the appearance of symptoms, as it did in Wythe's case. An inexperienced, experimenting Swinney may have underestimated on May 24 the amount of arsenic required to accomplish his premeditated purpose. He may have awaked the next morning to find that his attempt of the previous afternoon or evening had failed. He may then have added a second and larger quantity of arsenic to the breakfast menu. Neither this nor any alternative possibility can be proved conclusively from the available evidence.

More important than questions about details of that sort is the official record's revelation of the limited, inconclusive nature of the physicians' findings in the two autopsies. They did not exhaust every means known to the medical scientists and chemists of their generation to determine whether or not the deaths of Michael Brown and George Wythe had been unnatural ones. One authoritative treatise, for example, published in 1832 but embodying comparatively little that had been learned since 1806, devoted fully a hundred pages to its discussion of arsenic poisoning, forty of them to various definitive tests by which the presence of arsenic can be determined. Its author commented on the ease with which that almost tasteless and odorless chemical element could be procured in various forms and compounds and could be administered surreptitiously. Then he added,

"It is fortunate, therefore, that there are few substances in nature, and perhaps hardly any other poison, whose presence can be detected in such minute quantities and with so great certainty."<sup>54</sup> The inflamed tissues observed by the Richmond doctors were ambiguous. The same kind of examination today would do little more, if any, to pin down positively the cause of such deaths, for gastrointestinal inflammations of quite similar

<div style="font-size: 85%;">
<sup>54</sup> Robert Christison, ''A Treatise on Poisons, in Relation to Medical Jurisprudence, Physiology, and the Practice of Physic'' (2d ed., Edinburgh, 1832), 223. This volume's treatment of arsenic poisoning covers pp. 223-324.
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appearance can result from any of several distinct causes, both natural and unnatural. The Richmond physicians' post-mortem inspections should not have ended short of a few simple laboratory procedures. Standard analyses of that kind would almost certainly have proved beyond question whether or not arsenic had ended the lives of the youthful Michael Brown and the aged George Wythe.

The above testimony in both of the suits of the Commonwealth ''v.'' Swinney confirms an undisputed conclusion reached by all who have ever studied the matter: Wythe himself became fully convinced on his death- bed that Swinney was a forger and a murderer. Yet, in fact, that young man escaped legal punishment for both offenses. His road to freedom was, however, a tortuous one. Sometime during the summer of 1806 the charges against him were referred to a grand jury. It returned true bills. Thus it became the third judicial body to render a verdict of guilt against Swinney on each accusation, for the same conclusion had already been reached on each count by one or more of Richmond's magistrates and by the Hustings Court. Specifically, the grand jury cleared the way for the trial of Swinney by the District Court on each of six distinct indictments—one for the murder of Wythe, another for that of Michael Brown, and four for forgeries of Wythe's name on as many checks.<sup>55</sup>

On September 2, 1806, the District Court proceeded to tackle what the [[Respectfully Dedicated to the Legislature of Virginia|Richmond ''Enquirer'']] termed "the celebrated trial of George W. Sweeney, on the charge of administering arsenic to his great Uncle the venerable George Wythe." Judges Joseph Prentis and John Tyler, Sr., whose son of the same name was destined to become the tenth President of the United States, were the two members of Virginia's General Court assigned to preside over this session in the Richmond district.<sup>56</sup> Presumably, the two judges' judicial robes hid the mourning bands of crape that they and other members of the General Court had resolved to wear on their left arms for three months in tribute to the jurist Virginia had lost.<sup>57</sup> At the

<div style="font-size: 85%;">
<sup>55</sup> There is no record of any decision in regard to the other two checks that William Dandridge and Peter Tinsley had testified were, in the opinions of Dandridge and Wythe, also forged.

<sup>56</sup> [[Richmond Enquirer, 9 September 1806|Richmond ''Enquirer'', Sept. 9, 1806]].

<sup>57</sup> Ibid., Jun. 24, 1806; [[Virginia Argus, 17 June 1806|Richmond ''Virginia Argus'', Jun. 17, 1806]]; Richmond ''Impartial Observer'', Jun. 21, 1806. The Governor and Council had resolved on Jun. 14, "in honour of the deceased," to wear black bands similarly for one month as an "outward Sign of respect to his memory." Journals of the Council of Virginia (MSS. in the Virginia State Library), XXVII, 448. When the Virginia General Assembly convened in Dec., 1806, its members also resolved unanimously to "wear a badge of
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prosecuting attorney's table sat Philip Norborne Nicholas,<sup>58</sup> the popular young Attorney General of Virginia and successful leader in recent years of the Jeffersonian Republican party in the state. Nicholas had known Wythe while the Chancellor had still resided in Williamsburg. More recently they had been associated in various legal and political activities. Presumably, Nicholas had every reason to prosecute the case with all the vigor at his command.

But the shocked, incensed atmosphere of June had doubtless grown calmer by September, and impressive talents had been aligned on Swinney's side as counsel for the defense.<sup>59</sup> One of these lawyers was the same Edmund Randolph who had written the codicil disinheriting Swinney, the same Randolph who had given damaging testimony against him in the Hustings Court. The other lawyer at Swinney's side was the same William Wirt who had expressed a hope that no attorney would be found to defend him, so that he would be left to suffer the fate he deserved.

Wirt had been contemplating at the beginning of the summer a desire to move from Norfolk to Richmond, for his wife found Norfolk's summers unbearable. He had concluded at that distance within a month after Wythe's death that Swinney could conceivably be innocent of murder. Judge William Nelson of the General Court had told him that "there was a difference of opinion" among Richmond doctors as to the cause of the Chancellor's death and that "the eminent McClurg, amongst others, had pronounced that his death was caused simply by bile and not by poison." Then a brother of Swinney's distressed mother had traveled eastward to implore Wirt to serve as an attorney for the defense.<sup>60</sup>

Although Wirt had already decided before that visit that "it would not be so horrible a thing to defend" Swinney "as, at first, I had thought it," the plea made by his uncle posed a problem of conscience and of reputation. By letter Wirt asked his wife, "What shall I do?" And then he proceeded to influence her decision. "If there is no moral or professional impropriety in it, I know that it might be done in a manner which would avert the displeasure of every one from me, and give me a splendid ''debut'' in the metropolis. Judge Nelson says I ought not to hesitate a moment

<div style="font-size: 85%;">
mourning" for one month. Washington, D.C., [[National Intelligencer, 15 December 1806|''National Intelligencer, and Washington Advertiser'', Dec. 15, 1806]].

<sup>59</sup> ''Ibid.''

<sup>60</sup> William Wirt to his wife, Jul. 13, 1806, Kennedy, ''William Wirt'', I, 152-153.
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<blockquote>
to do it; that no one can justly censure me for it; and, for his own part, he thinks it highly proper that the young man should be defended. Being himself a relation of Judge Wythe's, and having the most delicate sense of propriety, I am disposed to confide very much in his opinion."'

The issue was settled within ten days. Nelson reiterated his opinion as to "the perfect propriety of the step." Mrs. Wirt evidently protested that her husband need not fear that she would suffer reproach. "I shall defend young Swinney under your counsel," he wrote her. "My conscience is perfectly clear, from the accounts I hear of the conflicting evidence."<sup>62</sup>

Records of the District Court, in which Randolph and Wirt undertook to save the life of George Wythe Swinney, are not extant; apparently they did not survive the fire that accompanied the Confederate evacuation of Richmond in April, 1865. Only from other sources can we learn whether or not the defense attorneys achieved their goal. The Richmond ''Enquirer'' reported succinctly the results of what was probably a day replete with courtroom drama and legal technicalities. "After an able and eloquent discussion" by counsel for the Commonwealth and for Swinney, read that newspaper's summary, "the jury retired, and in a few minutes, brought in the verdict of ''not guilty''. A similar indictment against him [Swinney] for the poisoning of Michael, a mulatto boy (who lived with Mr. Wythe) was quashed without a trial."<sup>63</sup>

There could have been no doubt whatsoever that Virginia's laws of 1806 defined murder by poisoning, if it were committed by a free person, to be murder of the first degree, punishable by death.<sup>64</sup>Some other ex- planation of the jury's astonishing verdict must be sought. Editor Thomas Ritchie offered his readers one hint why Randolph and Wirt had been able to win a quick decision in favor of their despised client. Some of the "strongest testimony" that had been heard by the Hustings Court and by the grand jury, Ritchie remarked, "was kept back from the petit jury" in the District Court. "The reason is, that it was gleaned from the evidence of negroes, which is not permitted by our laws to go against a white

<div style="font-size: 85%;">
<sup>61</sup> ''Ibid''. Nelson's distant kinship to Wythe was evidently through the second Mrs. Wythe, who had been a Taliaferro. See a copy of the will of Rebecca Cocke Taliaferro of "Powhatan," James City County, Nov. 12, 1810, in the possession of Colonial Williamsburg.

<sup>62</sup> William Wirt to his wife, Jul. 23, 1806, Kennedy, ''[[Life of William Wirt#Page 154|William Wirt]]'', 1, 154.

<sup>63</sup> [[Richmond Enquirer, 9 September 1806|Richmond ''Enquirer'', Sept. 9, 1806]].

<sup>64</sup> the enactments of 1796 and 1803, Shepherd, ''Statutes'', II, 5-14 and 405-406, respectively.
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man."<sup>65</sup> Actually, the reason assigned by the editor would have been more nearly true if he had phrased it more carefully. As far back as 1732 and as recently as 1801 the statutes of Virginia had stipulated that a Negro or a mulatto could be qualified as a witness only in a lawsuit brought against a Negro or a mulatto or by the commonwealth for one.<sup>66</sup> That is why Lydia Broadnax had not told the Hustings Court in June whatever she knew about the involvement of George Wythe Swinney in the deaths of Michael Brown and George Wythe.

The legal disability of Negroes to testify against Swinney had loomed large in people's thinking about the prospective trials of that ingrate for murder ever since Michael had died. Even before William Wirt learned with certainty that Wythe had also been a victim, Wirt had realized that one law might prevent the fulfillment of justice under another. "The chain of circumstances fix the guilt of Sweney beyond reach of doubt," Wirt had then been willing to assert, "but some of those circumstances, material to his conviction in a court of law, depend, it seems, on black persons, & so he will escape for the poison[ings]. he is under prosecution for the forgery & of that must be convicted."<sup>67</sup>

One logical question is answered neither by Ritchie's explanation nor by Wirt's prophecy. Why was any of the evidence that had been admissible in the three previous proceedings—evidence that had resulted in three verdicts of guilt—not presented in the District Court? No record answers that question. Possibly the District Court refused to hear some of the testimony that had been given before the Hustings Court. Evidence given by the white witnesses in June concerning what Negroes had ob-

<div style="font-size: 85%;">
<sup>65</sup> [[Richmond Enquirer, 9 September 1806|Richmond ''Enquirer'', Sept. 9, 1806]].

<sup>66</sup> The exact words of the law of 1801 were: "Any negro or mulatto, bond or free, shall be a good witness in pleas of the commonwealth for or against negroes or mulattoes, bond or free, or in civil pleas where free negroes or mulattoes shall alone be parties." Shepherd, ''Statutes'', II, 300. The statute of 1785 was to the same effect, although its provisions were couched in negative terms and omitted the words "bond" and "free" in each of the five instances of their use in the enactment of 1806. Hening, ''Statutes'', XII (Richmond, 1823), 182-183. Digests of the 1732 and 1748 statutes and of related legislation can be found conveniently in June Purcell Guild, ''Black Laws of Virginia: A Summary of the Legislative Acts of Virginia concerning Negroes from Earliest Times to the Present'' (Richmond, 1936), 154-155.

<sup>67</sup> William Wirt to James Monroe, Jun. 10, 1806, Monroe Papers, vol. XI, no. 1373. Internal evidence in this letter indicates that for the facts he stated Wirt was indebted to a communication written on Jun. 5, 1806, by his brother-in-law, Governor Cabell, and the prophecies Wirt voiced may also have reflected the Governor's thinking as of that date.
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served and had told them may have been ruled inadmissible by Judges Prentis and Tyler because of its Negro source or its hearsay nature. On the other hand, we have no proof acceptable by the ordinary standards of historical criticism that Swinney was acquitted because of the repression of the testimony Lydia Broadnax or other Negroes might have given but for Virginia's laws. Ritchie's allegation about the withholding of testimony "gleaned from the evidence of negroes" remains unsubstantiated, and Wirt's prophecy can be considered to have been merely a recognition of the flimsiness of the circumstantial evidence others would be able to give.

The simple fact remains that no known witness was able to assert in any of the four proceedings that he had actually seen Swinney put poison into food eaten by Michael Brown or by George Wythe. Moreover, no physician is known to have been willing to swear that either of the two autopsies proved that death had been caused by a poison. In other words, the evidence against Swinney was purely circumstantial.

Thomas Ritchie himself had not been hysterical in his attitude toward Swinney during the first days of resentment following the news of the Chancellor's death. The editor had remembered, sanely and circum- spectly, that the accusations against Swinney had not then been proved and that, until and unless they were, he should be presumed innocent. "Every situation in life has its rights and its duties," Ritchie had cautioned his readers. "Let us therefore respect the rights of the accused."<sup>68</sup> If Swinney's two lawyers took advantage in the District Court of every legal technicality to protect their client's rights, Ritchie should have been among the last to imply any criticism of them, for they had placed themselves under obligation to do so.

In any case, George Wythe was dead. Another man's life was at stake. It is the very genius of the legal system Wythe had received from his forefathers and had himself helped to develop and to refine that this second life should not be taken lightly. Since we do not know in detail what transpired in that Richmond courtroom on September 2, 1806, we are left in the position of being forced to accept at face value the jury's final decision, which was that Swinney had not been proved beyond reasonable doubt to have murdered George Wythe and that he was therefore ''not guilty''. Similarly, we must accept the opinion of Attorney General Nicholas that it would have been useless to try to prove beyond reasonable doubt that Swinney had murdered Michael Brown.

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<sup>68</sup> [[Richmond Enquirer, 10 June 1806|Richmond ''Enquirer'', Jun. 10, 1806]].
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Nevertheless, we can record the fact that those jurymen are the only persons known to have expressed at any time in or since 1806 an opinion that Swinney was not a murderer. William Wirt had concluded that Swinney could conceivably be innocent of the charge, but Wirt left no record now extant that he actually believed Swinney to be the victim of an unjust accusation. The common impression throughout the summer of 1806 was that Swinney had committed two premeditated murders. That opinion has remained unchanged to this day.

George Wythe Swinney had escaped death by hanging. It remained to be seen whether or not he would become permanently branded a convicted forger. Within another twenty-four hours he received a tentative answer to this second question. On Thursday, September 3, 1806, he was adjudged guilty on two of the forgery indictments.<sup>69</sup> But these verdicts were not allowed to stand unquestioned. Within ten days William Wirt pleaded successfully, "in an eloquent and ingenious speech" addressed to Judges Prentis and Tyler of the District Court, for arrest of judgment. Wirt's objections were considered acceptable by the two judges and were referred to the next session of the General Court for approval or rejection.<sup>70</sup> Wirt had changed his mind since his assertion in June that Swinney would doubtless be convicted of the forgery charges.

Someone else had come earlier than Wirt to the conclusion that the laws of Virginia would not justify inflicting punishment on Swinney for having obtained certain things of value at the state's bank by using forged signatures. Indeed, former Governor Page had decided in June that what Swinney had done at the Bank of Virginia was a crime only against God, not against any law of the Commonwealth of Virginia. "As to this young Man's Forgeries," Page had commented in highly moralistic vein but with a practical twist, "when religion is out of the way, I can see nothing in our law, that could restrain him, or any one else from a free exercise of that lucrative Employment. But for a sense of religion, I myself could not have done a better act for the Benefit of my Wife & Children, than to have . . . died . .. consoled with the pleasing reflection that I had handsomely provided for my Family, in a way permitted, nay chalked out by our Laws." <sup>71</sup>

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<sup>69</sup> [[Richmond Enquirer, 9 September 1806|''Ibid.'', Sept. 9, 1806]].

<sup>70</sup> Richmond ''Virginia Gazette, & General Advertiser'', Sept. 13, 1806.

<sup>71</sup> Page's letter continued: "I could, if under no religious impressions, tell my Wife & Children, that no one would think the worse of them for what I had done; and indeed that they would always be respected in proportion to their riches, and
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Could it be true, as Page thought he perceived, that Swinney had violated no law by his use of counterfeited signatures of George Wythe? Almost entirely so, declared the General Court in two quite technical opinions on November 17, 1806, with Judges Francis T. Brooke, Paul Carrington, Jr., Hugh Holmes, Archibald Stuart, John Tyler, Sr., and Robert White on the bench. They learned that the District Court's jury had convicted Swinney on an indictment for having obtained from the Bank of Virginia on May 27, 1806, a ''banknote'' for $100. In order to do so, he had presented to William Dandridge both a counterfeited letter and a forged check purporting to have been written and signed by Wythe. But the judges also heard that the arrest of judgment had been awarded on the ground that the forgeries of which Swinney had been accused did not actually constitute offences against a Virginia statute enacted in 1789, which was the only law the forgery indictments against him had contrived to mention.<sup>72</sup>

For one thing, William Wirt had argued that the 1789 law "was intended to punish a pre-existing evil" and could not possibly have reference to any bank, since no bank was established in Virginia until "many years" later. In the second place, Wirt contended that the law's phraseology, as well as its date, precluded any possibility of its being applied to the Bank of Virginia. The statute made illegal any deceitful deed, bill of sale, or other such document that would result in the robbery of one or more "private individuals." The bank could not properly be considered a

<div style="font-size: 85%;">
that both I and they would have been despised had I left them poor—that therefore the riches I had acquired for them would secure them respect in this World, and that as to any other, they need not trouble themselves about it—that they ought to enjoy their hearts desire in all things, and say 'let us eat & drink for tomorrow we die.' . . . But believing as I do in a divine revelation, I had rather perish with my Wife & Children through absolute Want, than that any one of us, should do one unjust or dishonest Act." John Page to St. George Tucker, Jun. 29, 1806, Tucker- Coleman Papers.

<sup>72</sup> The law that Swinney was alleged by the indictment to have broken had been adopted on Nov. 18, 1789. It was entitled "An act against those who counterfeit letters or privy tokens, to receive money or goods in other men's names." It provided that "if any person or persons, shall falsely and deceitfully obtain or get into his or their hands or possession, any money, goods or chattels of any other person or persons, by colour and means of any such false token or counterfeit letter, made in any other man's name as is aforesaid; every such person and persons so offending, and being thereof lawfully convicted in the court of the district, in which such offence shall have been committed," shall be subject to a maximum term of one year in prison and to "setting upon the pillory." Hening, ''Statutes'', XIII (Philadelphia, 1823), 22.
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"person or persons" within the meaning of the law. It was "a body corporate, an ideal body," and "no more a person, than the commonwealth of Virginia." Anything, therefore, that Swinney had obtained from the bank could not have been procured in violation of a law that made punishable the getting by false means of "any money, goods or chattels of any other person or persons." And in the third place, Wirt argued, what Swinney had received was not part of "the money or goods of the said George Wythe, because having been delivered under a check not drawn by him, the bank hath no right to charge it to his account."

In connection with the ''banknote'' in question under the first indictment, the General Court found Wirt's claims convincing enough. Its judges concluded that they should grant a permanent arrest of judgment. Thus they reversed the petit jury's verdict that Swinney was guilty; thus they pronounced him innocent of the crime alleged to have occurred on May 27. While Wythe lay on his deathbed that Tuesday, Swinney had perpetrated a forgery, but it was not an unlawful forgery.

The other indictment under which the District Court had found Swinney guilty of a violation of the same statute was quite similar to the first. The second differed in only one significant particular. It involved $50 that Swinney had obtained from the bank by the same means on April 11, 1806, in the form of ''currency''. Wirt's appeal in the District Court for an arrest of judgment had been won on the same three grounds, and they were pleaded anew as sufficient cause for making the temporary ban against sentence upon Swinney a permanent one.

In this instance the General Court did not agree. It refused to accept Wirt's argument that the "''money current''" Swinney had gotten at the bank in April could not properly be charged against the account of Wythe, by virtue of the forged check, and was therefore not Wythe's money until Swinney had acquired possession of it falsely. Evidently, Virginia's supreme tribunal for criminal law decided that neither of Wirt's first two points was valid in respect to either indictment and that the validity of Wirt's third contention depended entirely upon the natures of the two kinds of property the forger had received. In other words, the six judges' two decisions meant, essentially, that the promissory ''banknote'' Swinney obtained on May 27 had not been Wythe's "money, goods or chattels" but that the ''currency'' involved in the similar transaction of April 11 had been. If this distinction seems subtle, thin, and flimsy, it appears to have been not more so than whatever reasoning persuaded the judges to ignore
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Wirt's assertions that the 1789 law was not at all pertinent to the later means of "getting something for nothing" upon which an unconsciously clever forger had stumbled. The chagrined John Page, who had been Governor of Virginia when the state bank was established, had believed on June, 1806, that none of Swinney's forgeries was illegal. Page had been much disconcerted by his discovery that the commonwealth had not foreseen and had not prohibited such misuses of another's signature. The General Court, on the other hand, professed to believe that one of Swinney's forgeries had inadvertently violated a law more than fifteen years old and obviously designed to curb other frauds wrought by means if forgery. Consequently, the court decreed that punishment should be imposed upon Swinney under the second indictment by the District Court.<sup>73</sup>

Nevertheless, according to a report derived from official records that are not now extant, the District Court did not execute its sentence, which was that Swinney should spend one hour in the pillory at Richmond's public market and six months in prison. Contrary to the General Court's decree and for reasons inexplicable today, the District Court is said to have granted Swinney a second trial on the indictment the higher court had upheld, and then the attorney for the commonwealth declined to prosecute the case.<sup>74</sup>

Thus freed, technically at least, of all charges against him, but with a reputation he would never be able to live down locally, the "unfortunate" Swinney "then sought refuge in the West, where his career was brought to a premature and miserable close."<sup>75</sup> So reads one account, written about the middle of the nineteenth century, of the end of the life of

<div style="font-size: 85%;">
<sup>73</sup> William Brockenbrough and Hugh Holmes, ''[[Commonwealth against George Wythe Swinney|Collection of Cases Decided by the General Court of Virginia, Chiefly Relating to the Penal Laws of the Commonwealth, Commencing in the Year 1789 and Ending in 1814, Copied from the Records of Said Court, with Explanatory Notes]]'' (Philadelphia, 1815), 146-151.

<sup>74</sup> Minor, "[[Memoir of the Author]]," in Wythe, ''Decisions'', xxviii. In a footnote on that page Minor asserted: "The records of these proceedings [in the District Court after the return to it of the decree of the General Court in the last of tie suits of the Commonwealth v. Swinney] have been consulted in the office of tie Superior Court of Law for Henrico County." Minor wrote those words in or before 1852. Presumably, reorganizations of Virginia's judicial system between 1806 and 1852 account for the fact that records of the District Court in Richmond for its Apr., 1807, term (the first session it was scheduled to have after the Nov., 186, term of the General Court) had come by 1852 into the custody of the Superior Court of Law for Henrico County. The fire in Richmond during April 2-3, 1865, apparently explains their disappearance.

<sup>75</sup> ''Ibid''.
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the young man to whom George Wythe had been "kinder than a Father."<sup>76</sup> According to the memory of another Richmonder fifty years after George Wythe Swinney had been a defendant in the capital's courtrooms, Swinney went to Tennessee, stole a horse, served a term in a penitentiary, and was "then lost sight of."<sup>77</sup> The forgeries that preceded and led directly to the death of George Wythe may not have been plainly and provably crimes against the Commonwealth of Virginia. But they served one useful purpose, for they pointed out a glaring loophole in Virginia's laws. The state acted promptly to plug that gap. On the last day of the same year the General Assembly adopted and put into immediate effect "An ACT to punish certain thefts and forgeries." That law clearly defined as a crime every deed by which any person should "fraudulently obtain, or aid or assist in obtaining from the Bank of Virginia, or any of its offices of discount and deposit, any bank or post note, or money, by means of any forged or counterfeit check or order whatsoever, knowing the same to be forged or counterfeited." Violators of the new statute, when they were properly found guilty in court, were to be imprisoned for "not less than two, nor more than ten years."<sup>78</sup>

In the final analysis, we may guess, George Wythe Swinney escaped death on the gallows because of three considerations. One of these seems to be the forgiveness Wythe himself gave him. That could not alter one whit Swinney's legal liability to pay the penalty for murder, but it may have influenced, both consciously and unconsciously, the men who prosecuted and defended Swinney, those who testified, the judges who decided what evidence was admissible, and the twelve "good men and true" who retired to a jury room in the September trial. A second determining factor probably was the failure of the physicians to perform complete autopsies and thus to be prepared to assert unequivocally on the witness stand that, in their professional judgments, the deaths of Michael Brown and George Wythe had been caused by arsenic poisoning. Such testimony would have become, quite possibly, the "clincher" that would have strengthened the

<div style="font-size: 85%;">
<sup>76</sup> William DuVal to Thomas Jefferson, [[Jefferson-DuVal Correspondence#William DuVal to Thomas Jefferson.2C 4 June 1806|Jun. 4, 1806]], Jefferson Papers.

<sup>77</sup> Dove, "[[Memoranda Concerning the Death of Chancellor Wythe|Memoranda]]." Although Minor accepted Dr. Dove's recollections they are so untrustworthy in matters that can be checked that the unsubstantiated statements concerning Swinney's life after he escaped the clutches of the law in Richmond made by both Dove and Minor must be considered traditionary rather than supported by valid evidence.

<sup>78</sup> Shepherd, ''Statutes'', III, 289.
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web of circumstantial evidence against Swinney enough to put a knotted rope around his neck. A third presumed factor was inherent in Anglo-American jurisprudence. The doctors and other Virginians who participated as witnesses, attorneys, jurymen, and judges in Swinney's final trial for murder were honorable men. They cleared him of the accusation because, evidently, they thought it important to save the life of a young man who ''might'' be innocent, although he certainly seemed not to be. George Wythe himself would doubtless have had the same respect for the legal principle of a reasonable doubt.

Did Virginia justice suffer a miscarriage in 1806? For want of complete records, we cannot properly lift our second-guessing voices to cry that it went wrong. But we can agree heartily with the opinion held by Wythe himself and never relinquished by most of his sympathetic but straightforward contemporaries—the belief that, by every standard other than the technical ones of the law, Swinney had assuredly done serious wrongs. Like Wythe's survivors, we can only take comfort in the fact that Virginia justice may have avoided adding another wrong to Swinney's and in the fact that his chief victim, Chancellor Wythe himself, the "Virginia Socrates" and the "American Aristides," had achieved on his deathbed, by revoking his generous bequests to Swinney, one final act of obvious equity.
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==See also==

*[[Commonwealth against George Wythe Swinney]]
*[[Honest Lawyer]]
*[[Hustings Court Minutes]]
*[[Hustings Court Order Book]]
*[[Jefferson-DuVal Correspondence]]
*[[Life of William Wirt]]
*[[Memoir of the Author]]
*[[Memoranda Concerning the Death of Chancellor Wythe]]
*[[Murder of George Wythe]]
*[[National Intelligencer, 15 December 1806]]
*[[Richmond Enquirer, 8 July 1806]]
*[[Richmond Enquirer, 10 June 1806]]
*[[Richmond Enquirer, 9 September 1806]]
*[[Virginia Argus, 10 June 1806]]
*[[Virginia Argus, 17 June 1806]]
*[[Virginia Argus, 25 June 1806]]
*[[Virginia, June General Court, 1806]]

==References==
<references/>

==External links==

[[Category:Biographies (Articles)]]
[[Category:Murder of George Wythe]]

Examinations of George Wythe Swinney for Forgery and Murder

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{{DISPLAYTITLE:"Examinations of George Wythe Swinney for Forgery and Murder: A Documentary Essay"}}
[[File:WilliamAndMaryQuarterlyOctober1955Wythe.jpg|thumb|right|400px|Engraved portrait [[George Wythe]] by [[Depictions of Wythe|J.B. Longacre]], from the ''William and Mary Quarterly,'' 3rd ser., 12, no. 4 (October 1955), 512.]]

Wythe scholar W. Edwin Hemphill contributed to a special issue of ''The William and Mary Quarterly'', dedicated to the murder of [[George Wythe]], in October, 1955. The issue was published in accordance with the Marshall-Wythe celebration at the [http://law.wm.edu/ College of William & Mary Law School] on September 25, 1954, for the bicentennial of [[John Marshall|John Marshall's]] birth. The journal pairs Hemphill's essay on "[[Media:HemphillExaminationsOfGeorgeWytheSwinneyOctober1955.pdf|Examinations of George Wythe Swinney for Forgery and Murder]],"<ref>W. Edwin Hemphill, "Examinations of George Wythe Swinney for Forgery and Murder: A Documentary Essay," ''William and Mary Quarterly'' 3rd ser., 12, no. 4 (October 1955), 543-574.</ref> with another by [[wikipedia:Julian P. Boyd|Julian P. Boyd]], "[[Murder of George Wythe]]."<ref>Julian P. Boyd, "[[Media:BoydMurderOfGeorgeWytheOctober1955.pdf|The Murder of George Wythe]]," ''William and Mary Quarterly'' 3rd ser., 12, no. 4 (October 1955), 513-542.</ref> Hemphill had rediscovered witness testimony given for [[Death of George Wythe#Sweeney's Trial|Sweeney's murder trial]] in 1806, and both authors made use of this new information.

Hemphill and Boyd's work was published as a pamphlet reprint the same year, under the title: [https://catalog.swem.wm.edu/law/Record/343766 ''The Murder of George Wythe: Two Essays''] (Williamsburg, VA: [https://oieahc.wm.edu/ Institute of Early American History and Culture,] 1955).

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==Article text, October 1955==
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'''Examinations of George Wythe Swinney<br />for Forgery and Murder: A Documentary Essay'''<br />W. Edwin Hemphill*
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“I SHUDDER when I think of it." Thus wrote [[wikipedia:John Page (Virginia politician)|John Page]] three weeks after the death of [[George Wythe]] in Richmond on June 8, 1806.<sup>1</sup> Less than a year and a half had elapsed since a "numerous concourse" of Jeffersonian Republicans had gathered at the Washington Tavern in the capital on March 4, 1805, to celebrate the second inauguration of [[Thomas Jefferson]] as the President of the United States. On the joyous occasion of the party's victory banquet Governor Page had asked Judge Wythe to retire and had then proposed a volunteer toast to "George Wythe, distinguished alike for his wisdom and integrity as a magistrate, and his zeal and disinterestedness as a patriot." The tavern's hall had resounded with nine cheers—as many as were given in response to any prearranged or spontaneous toast, even that to the President himself.<sup>2</sup> Nine months later Page had retired from the governorship.

As he sat at his writing desk late in June, 1806, amid the peace and security of "Rosewell," his magnificent home in Gloucester County, John Page reflected upon the saddening, disheartening news he had heard during a recent trip to Richmond. [[William DuVal]], George Wythe's nearest neighbor, had told Page how their mutual friend had suffered and had died—and how very suspect certain circumstances preceding that death seemed. But nothing had yet been proved. So the circumspect Page scribbled to another friend an outburst that was more a sermon than a digest of the evidence. "I know only enough" about the "horrid tale," he remarked in his letter to St. George Tucker, one of Wythe's students and the judge who had succeeded Wythe in the chair of law in the College

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* Mr. Hemphill is Managing Editor of ''Virginia Cavalcade'' and a member of the staff of the Virginia State Library. These depositions were discovered by Mr. Hemphill and are now printed for the first time in this issue of the ''Quarterly''.

<sup>1</sup> John Page to [[St. George Tucker]], Jun. 29, 1806, Tucker-Coleman Papers, Colonial Williamsburg.

<sup>2</sup> Richmond ''Enquirer'', Mar. 8, 1805.
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[[File:BoydHemphillMurderOfGeorgeWytheTwoEssays1955.jpg|thumb|right|400px|Title page from Boyd and [[Examinations of George Wythe Swinney for Forgery and Murder|Hemphill's]] pamphlet reprint, [https://catalog.swem.wm.edu/law/Record/343766 ''The Murder of George Wythe: Two Essays''] (Williamsburg, VA: Institute of Early American History and Culture, 1955).]]
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of William and Mary, "to shock my Soul." But the former Governor could not forbear comment along other lines. The murder of Chancellor Wythe, he exclaimed, made him "feel for humanity—and the wounded honor of my Country!"<sup>3</sup>

[[wikipedia:William H. Cabell|Governor William H. Cabell]], Page's successor, was also distressed. He reminded one of his sisters-in-law of their experience when they had visited a Miss Nelson, who had then been living in the modest Richmond home of her uncle, the widowered, scholarly Chancellor. "She and all of us were almost children, and few grown men would have found any interest in staying in the room where we were. But the good old gentleman brought forth his philosophical apparatus and amused us by exhibiting experiments, which we did not well comprehend, it is true, but he tried to make us do so, and we felt elevated by such attentions from so great a man."<sup>4</sup>

The up-and-coming [[wikipedia:William Wirt (Attorney General)|William Wirt]], who had served for a year in a judicial office coordinate with that of the victim,<sup>5</sup> wrote from Norfolk to [[wikipedia:James Monroe|James Monroe]], who was abroad, in indignant terms about the "dose of arsenick administered" to "poor old Chancellor Wythe."<sup>6</sup> Five weeks later Wirt could assure his absent wife, "I dare say you have heard me say that I hoped no one would undertake the defence of [the accused, George Wythe] Swinney, but that he would be left to the fate which he seemed so justly to merit."<sup>7</sup>

The editor of a Richmond newspaper was upset enough to describe his news announcement of the death as a "painful task."<sup>8</sup> An editor in Raleigh, North Carolina, was told "by a gentleman lately from Rich-

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<sup>3</sup> John Page to St. George Tucker, Jun. 29, 1806, Tucker-Coleman Papers.

<sup>4</sup> William H. Cabell to Mrs. William Wirt (undated), quoted in John Pendleton Kennedy, ''[[Life of William Wirt#Page 151|Memoirs of the Life of William Wirt, Attorney General of the United States]]'' (Philadelphia, 1849), I, 151-152. Hereafter cited as Kennedy, ''William Wirt''.

<sup>5</sup> Ambitious for wealth, Wirt found his position as judge of the Superior Court of Chancery for the Eastern District irksome, its salary barely adequate in view of his second marriage, which took place in September, 1802. It "is possible," he observed wryly, "that I may, like Mr. Wythe, grow old in judicial honors and Roman poverty. I may die beloved, reverenced almost to canonization by my country, and my wife and children, as they beg for bread, may have to boast that they were mine." [[Life of William Wirt|William Wirt to Dabney Carr]], Feb. 13, 1803, ''ibid.'', 95. In May, 1803, Wirt returned to the practice of law as an attorney, with his residence and headquarters in Norfolk. ''Ibid.'', 87-101.

<sup>6</sup> William Wirt to James Monroe, Jun. 10, 1806, Monroe Papers, vol. XI, no. 1373, Library of Congress.

<sup>7</sup> William Wirt to Elizabeth Gamble Wirt, Jul. 13, 1806, Kennedy, ''[[Life of William Wirt#Page 152|William Wirt]]'', 1, 152-153.

<sup>8</sup> [[Virginia Argus, 10 June 1806|Richmond ''Virginia Argus'', Jun. 10, 1806]].
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mond" about the crime and was thus enabled to "scoop" the world by publishing the first printed details, albeit inaccurate ones, of the "circumstances of this horrid transaction."<sup>9</sup> Newspapers as far away as Boston recorded its effect.<sup>10</sup> Richmond's press devoted an apparently unprecedented amount of space to the modest, touching, but reserved funeral oration by [[William Munford]]<sup>11</sup> and to laudatory tributes received as anonymous communications to the editors; the total aggregated what seems to have been more column inches of eulogy than had been elicited in Virginia newspapers by the death of George Washington or by that of any other person.<sup>12</sup>

Washington's imaginative, opportunistic biographer, Mason Locke Weems, seized upon news that had "quite galvanized" the "very young and tender hearted" in Charleston, South Carolina, as excuse enough for a discursive essay. That itinerant book-peddler described himself as "getting now to be a little oldish . . . , and daily, as becomes a stranger in Charleston, at this season, looking out for a squall of the same sort." Weems viewed with equanimity the fact that "death, by a touch of his old thresher, with equal ease, brings down a Chancellor or a cherry." He professed no grief over the death of the Virginian he portrayed as "[[Honest Lawyer|The Honest Lawyer]]." On the contrary, the effusive "Parson" enjoined joy "that this veteran of the law, after a life of glorious toil, to revive the golden age of justice on earth, was returned to the high courts of heaven-not

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<sup>9</sup> Raleigh, N. C., ''Minerva'', Jun. 16, 1806.

<sup>10</sup> Boston, Mass., ''Gazette'', Jun. 19, 1806, and ''Columbian Centinel'', Jun. 21, 1806.

<sup>11</sup> After the death of Wythe's second wife in 1787, William Munford (1775-1825) had lived in Wythe's home in Williamsburg and had been a special object of Wythe's generous attentions to youth. Grateful, Munford named his oldest child George Wythe Munford "after my old friend and benefactor the Chancellor." William Munford to his sister-in-law, Mrs. Mary R. Preston, Jan. 10, 1803, Munford- Ellis Papers, Duke University Library. Munford, his heart "torn with sorrow," then accepted the Council of State's assignment to preach the funeral oration, partly because "the ties of gratitude to that best of men, for the extraordinary kindness he ever manifested towards me, ought to prohibit my suffering him to go to his grave without an Eulogy." William Munford to Governor William H. Cabell, Jun. 8, 1806, Executive Papers, Virginia State Library. The funeral oration by Munford was printed in its entirety by two Richmond newspapers: Richmond ''Enquirer'', Jun. 13 and 17, 1806; Richmond ''Virginia Argus'', Jun. 17, 1806.

<sup>12</sup> See issues of the ''Enquirer'', the ''Impartial Observer'', the ''Virginia Argus'', and the ''Virginia Gazette, & General Advertiser'' during the first three or four weeks after Jun. 8, 1806. The author's comparison is based upon impressions rather than upon actual counts of the space allotted by Richmond editors to obituaries, eulogies, etc., for Wythe and for such other distinguished citizens as George Washington, who had died in 1799, and Edmund Pendleton, who had died in 1803.
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pale and trembling . . . , wet with widows' tears, and blood of murdered patriots, to meet the tear-avenging God; but bright in conscious integrity, with hands pure as the sweet palms which press the alabaster bottles of life, and in robes of innocence, snow-white as those that angels wear, to meet the smiles of the Judge Supreme, and the acclamations of brother saints innumerable."'<sup>13</sup>

Celebrants of the Fourth of July in 1806 drank toasts to the memory of George Wythe.<sup>14</sup> Restricted to severe brevity by that social form of tribute, those who gathered for the Fourth at Lexington, Kentucky, remembered Wythe simply as "a faithful labourer in the vineyard of the republic."<sup>15</sup> There the orator of the day was Henry Clay, who until his own death remained proud of the fact that he had been associated with Wythe's court during the 1790's. Indeed, young Clay had been the amanuensis who transcribed for publication the Chancellor's annotated decisions, confusingly peppered though they were with Greek phrases Clay had been able neither to understand nor to write well.<sup>16</sup> Saddened by the news that had plunged Richmond into mourning (news that had just reached Lexington), Clay made his address "short and impressive."<sup>17</sup>

The sense of revulsion felt throughout the country crossed party lines as well as state lines. A Federalist organ in the nation's largest city copied from the Richmond ''Enquirer'' two paragraphs of Republican editor Thomas Ritchie's shocked obituary. To those paragraphs it appended the Petersburg, Virginia, ''Republican's'' pointed comment: "It is generally believed, that this patriot, has been brought to the grave, by means, the 'most foul, base and unnatural,' and that the accused is to undergo an examination."<sup>18</sup> Even a modern interpreter of the Old Dominion cites the felony as the worst example of the cussedness—or something worse—

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<sup>13</sup> M. L. Weems, "[[Honest Lawyer|The Honest Lawyer: An Anecdote]]," Charleston, S. C., ''Times'', Jul. 1, 1806.

<sup>14</sup> [[Richmond Enquirer, 8 July 1806|Richmond ''Enquirer'', Jul. 8, 1806]].

<sup>15</sup> Lexington ''Kentucky Gazette'', Jul. 5, 1806.

<sup>16</sup> Henry Clay to B. B. Minor, May 3, 1851, printed in Benjamin Blake Minor, '[[Memoir of the Author]]," in George Wythe, ''Decisions of Cases in Virginia, by the High Court of Chancery, with Remarks upon Decrees, by the Court of Appeals, Reversing Some of Those Decisions'' (2d ed., B. B. Minor, ed., xxxii-xxxvi. Richmond, 1852), Hereafter cited as Wythe, ''Decisions''.

<sup>17</sup> Bernard Mayo, ''Henry Clay, Spokesman of the New West'' (Boston, 1937), 208-209.

<sup>18</sup> Philadelphia, Pa., ''Poulson's American Daily Advertiser'', Jun. 17, 1806. This newspaper attributed the remark to the Petersburg ''Republican'' of an unspecified date.
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that she attributes to Virginians.<sup>19</sup> The murder of George Wythe took at the time top or high rank among the state's most heinous crimes. It still does.

Inevitably, the revolting affair created quite a stir, for people ''will'' talk. Throughout the week before the prostrated Wythe's last breath set the bells of Richmond a-tolling, his death was a foregone conclusion. People marveled that a man of his age could so long survive the excruciating agonies of so insidious and lethal a poison. While Wythe still suffered, strong suspicion was aroused. Circumstances and tangible evidence converted suspicion into conviction at least seven days before the poison produced its ultimate effect upon the Chancellor's strong constitution.

The suspect was as undoubted as was the conclusion that Wythe was a victim of premeditated murder by means of arsenic. Invariably the slayer was identified as the venerable patriot's teen-aged grandnephew and namesake, George Wythe Swinney, an ingrate who had already proved himself unworthy of the home and education he had enjoyed for several years under the hip roof of the Chancellor's unpretentious cottage. Had not that young reprobate stolen books and money from his too-trusting benefactor? Had he not forged checks against his patron's bank account? And had it not been generally known, doubtless by Swinney himself, that he was the chief heir to Wythe's estate, a modest one but doubtless large enough to provide some relief to a culprit in financial difficulties? So, people said, he had placed his fatal dose in the breakfast coffee served in the unsuspecting household on Sunday morning, May 25. Immediately after that meal the good old judge and two freed Negroes had become critically ill. Lydia Broadnax, the Chancellor's faithful cook and servant, recovered. Michael Brown, the mulatto lad to whom Wythe had personally been giving a classical education—Greek and all—as a practical experiment in testing and developing the intelligence of Virginia's other race, had died on the next Sunday, June 1. The Chancellor himself lived in torment—and perhaps toward the end in a merciful coma—through a second week, but he died on the second Sunday morning, June 8. Fortunately, however, he did not expire before he had altered his will to disinherit the villainous Swinney.

Such is the traditional account of the death of Wythe—a paraphrase expanded to greater length than any known to have been written within the next two weeks, doubtless shorter than many conversational versions

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<sup>19</sup> Virginia Moore, ''Virginia Is a State of Mind'' (New York, 1943), 190-191.
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of the time, and certainly embodying the contemporary explanations of the timing, the method, and the motive of the murderer of Michael Brown and George Wythe.<sup>20</sup> This story of the baneful circumstances has persisted ever since 1806. In its retellings it has undergone normal embellishments and amendments. Developments not fully understood when they occurred gave the tale a poor foundation at the start. The recollections of its original narrators grew more and more subject to error with the passing years. Family traditions, transmitted orally, added details and supplied conversations that seem more logical than they are trustworthy. Fanciful emphases and interpretations have been born of assumptions, not of research.

The only substantial modification, however, has been a pronounced tendency to portray the poisoning of Wythe as an accident, while that of Michael Brown has remained the result of intentional murder. This alteration cannot be traced backward beyond 1850. It stems from two sources that were not independent of each other. One was the quite faulty memory of Dr. John Dove of Richmond, who claimed in 1856 that he had been "[[Memoranda Concerning the Death of Chancellor Wythe|present during the sickness & death of Judge Wythe]]." Dove alleged that the Chancellor had been ill before May 25, 1806, and that Swinney had not expected him to eat breakfast that Sunday morning where the poisoned coffee was to be served. The other source was Benjamin Blake Minor, editor of the ''Southern Literary Messenger'', who contributed a biographical sketch to the second edition of the Chancellor's ''Decisions'' (1852). Minor talked with Dr. Dove, who undoubtedly told him something to the effect that Swinney had "vowed vengeance" only against the mulatto boy; and

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<sup>20</sup> Evidently the earliest summaries of the circumstances now extant are in the reliable letters written by William DuVal to Thomas Jefferson on [[Jefferson-DuVal Correspondence#William DuVal to Thomas Jefferson.2C 4 June 1806|Jun. 4 and 8]], preserved in the Jefferson Papers, Library of Congress. Neither attributes to the poisonings a plain method or motive. The earliest written statement as to motivation and method is apparently to be found in the letter of Jun. 10, 1806, from William Wirt in Norfolk to James Monroe, Monroe Papers, vol. XI, no. 1373. That letter was written before Wirt had learned of Wythe's death. Internal evidence in Wirt's letter indicates that the allegations it relayed were based exclusively on information written on Jun. 5, in a letter that has not been found, by Governor William H. Cabell, his brother-in-law. A later account is in the brief, less specific recollection recorded by Littleton Waller Tazewell, who wrote that "it was generally believed" that Wythe's death "was produced by poison, administered in his coffee, by a reprobate boy, a relation of his who he had undertaken to educate, and who was afterwards convicted of having committed many forgeries of checks in his patrons name." "Sketches of his own family, written by Littleton Waller Tazewell, for the use of his children. Norfolk. Virginia. 1823" (MS. in the Virginia State Library), 121.
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Minor found what seemed to him to be sufficient substantiation in Wythe's will and two of its codicils, which made Swinney the residuary legatee of bequests to Michael Brown.<sup>21</sup> Until now the only serious analysis of the traditional account of Wythe's death and of the Dove-Minor misinterpretation has been that of Julian P. Boyd. His lucidly reasoned booklet on ''[[Murder of George Wythe|The Murder of George Wythe]]'' assayed them chiefly by the test of comparison with information found in seven previously unexploited letters written in 1806 to President Jefferson by Wythe's intimate friend and executor, William DuVal.<sup>22</sup>

But other and even better contemporary records are also extant, and it is good that the ''William and Mary Quarterly'' affords space in this issue both for them and Dr. Boyd's thoughtful interpretation, now relatively unavailable. Chief among these additional documents are official court records of the preliminary trials of George Wythe Swinney for forgery and murder. Like pirates' gold buried in a forgotten pit, they lay neglected through more than a century and a quarter despite recurrent curiosity about Wythe's tragic death. These legal records, discovered by the present writer a number of years ago and now published for the first time, contain precious nuggets of authentic information. They include digests of the sworn testimony of sixteen witnesses for the prosecution against Swinney. They add up to a convincing indictment of him. The discovery was made in the office of the Clerk of the Hustings Court of the City of Richmond,<sup>23</sup> where the documents lay within the

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<sup>21</sup> Both of the phrases quoted above are from Dr. Dove's recorded recollections, which are replete with provable errors and must be considered wholly suspect. "[[Memoranda Concerning the Death of Chancellor Wythe|Memoranda concerning the death of Chancellor Wythe]]—Signed in the Aut[o]-g[rap]h. of T[homas]. H. Wynne and rec'd by him from Dr. John Dove, Sept. 16, 1856," MS. in the Brock Collection, Henry E. Huntington Library and Art Gallery. Hereafter cited as Dove, "Memoranda." For evidence that John Dove, M.D., was a Richmond practitioner from about 1822 to about 1852, see Wyndham B. Blanton, ''Medicine in Virginia in the Nineteenth Century'' (Richmond, 1933), 48, 76, 91, 238, 240. For evidence that Dove influenced Minor directly, see Minor, "[[Memoir of the Author]]," in Wythe, ''Decisions'', xxvii.

<sup>22</sup> Julian P. Boyd, ''[[Murder of George Wythe|The Murder of George Wythe]]'' (Philadelphia, 1949).

<sup>23</sup> Binder's title "[[Hustings Court Order Book|Order Book No. 6, 1804-1806]]," 464-465, 482-488. Rough drafts of the records for these two cases of the Commonwealth v. Swinney—drafts identical to the final ones in every important respect—can be found in the same office in the volume given the binder's title of "[[Hustings Court Minutes|Minutes No. 3, 1802-1806]]" (MS. with pages not numbered) under dates of Jun. 2 and 23, 1806, respectively. Microfilm copies of both the Minute Book and the Order Book are available in the Virginia State Library. The final drafts of the two documents have been transcribed from the Order Book for publication below.
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domain of the very court to which the laws of Virginia prevailing in 1806 required that such an offender in Richmond as Swinney should be brought first for any trial of which an official record would have been kept. When Richmond had been incorporated in 1782, it was made a unit of local government. The General Assembly had provided by law for the annual election of twelve citizens to serve in their spare time as municipal officials. Half of them were to constitute a legislative Common Council. The remaining six—a mayor, a recorder, and four aldermen—were commanded "to hold a court of hustings" each month. Its jurisdiction in Richmond corresponded to that of a county court within county boundaries. Each of the judges of the Hustings Court had been vested with the powers of a justice of the peace, and they had been specifically assigned the duty "of examining criminals for all offences committed within the limits of the said corporation." If they found a defendant guilty of a serious crime, they were to refer him to a higher court for trial before professional judges and a jury.<sup>24</sup> These governmental and legal arrangements for the preservation of law and order had been modified only slightly in later statutes, but a law of 1803 had increased the membership of the Common Council to fifteen and that of the Hustings Court to nine, doubtless in recognition of Richmond's growth to a population of more than five thousand.<sup>25</sup> We shall find that not all of our questions are answered by these documents, but no searcher for the treasure-trove could reasonably have expected it to be so rich. Yet it multiplies by many times the amount of contemporary data at our disposal. It enables us to confirm some details reported unofficially at the time and to correct others. It supplies us with vivid portraits of a gloomy, wicked, and yet remorseful youth; of the last days of a questioning, then convinced, and ultimately forgiving victim; of the anxious solicitude and growing outrage of the latter's friends; and of their transition from innocent acceptance of his serious illness as a natural thing to mounting suspicion, relatively thorough investigation, and distressing proof of the poisoner's guilt. Coupled with our greater knowledge of toxicology and with other contemporary records not utilized

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<sup>24</sup> William Waller Hening, compiler, ''The Statutes at Large ... of Virginia . . .'' (Richmond, Philadelphia, New York, 1819-1823,) XI (Richmond, 1823), 45-51. Hereafter cited as Hening, ''Statutes''.

<sup>25</sup> ''Ibid.'', XII (Richmond, 1823), 407-408; Samuel Shepherd, compiler, ''The Statutes at Large of Virginia,. . . 1792, to . . . 1806 . . .'' (Richmond, 1835-1836), II, 93, 422-425, III, 73-75. Hereafter cited as Shepherd, ''Statutes''.
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by previous investigators, it affords us a surer understanding of the grim story of the unpunished forgeries and murders committed by George Wythe Swinney than was vouchsafed to any of the people who mourned the death of Chancellor Wythe and sought with decreasing fervor to do justice to the cause of it—a more reliable understanding, indeed, than any of our predecessors attained.

The official record of the examination of Swinney for alleged forgery reads as follows:

At a Court of Hustings called and held for the City of Richmond at the Courthouse, on Monday, the second day of June 1806, for the examination of George W. Swinney,<sup>26</sup> who stands accused of forgery.<sup>27</sup>

Present

Edward Carrington, Gentleman, Mayor,

Samuel Pleasants, Gentleman, Recorder,

Henry S. Shore, William Goodwin, Anderson Barret,

David Lambert and William Richardson, Gentlemen, Aldermen.

The prisoner was led to the bar in custody of the Sergeant of this City; whereupon sundry witnesses were sworn and examined, and the prisoner in his defence fully heard: On consideration whereof, the Court is of opinion that the prisoner is guilty of the offence aforesaid, and doth order that he undergo a trial therefor at the next District Court directed by law to be holden at the Capitol in this City: and it is further ordered that the said George W. Swinney be bound in a recognizance in the penalty of one thousand dollars, with suf-

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<sup>26</sup> George Wythe Swinney, whose surname occurs in contemporary records also in the form of various spellings of Sweeney, was a grandson of George Wythe's sister and hence a grandnephew of Wythe. For genealogical information concerning him and related Sweeneys see W. Edwin Hemphill, George Wythe the Colonial Briton: A Biographical Study of the Pre-Revolutionary Era (Doctoral Dissertation, University of Virginia, 1937), 40.

<sup>27</sup> Swinney had doubtless been accused of forgery as the result of a preliminary hearing before one or more of the municipal magistrates or justices of the peace, presumably within the last five days of the preceding week, May 27-31, as is indicated by the testimony of the first witness below. William Wirt enumerated a few other manifestations of dishonesty on Swinney's part that had been preludes to his climactic crime: "The young villain (only about 16 or 17) had been in the habit of robbing his uncle [i.e., his granduncle, George Wythe] with a false-key, had sold three trunks of his most valuable law-books, had forged his checks on the bank to a considerable amount, & wound up his villainies by this act [of murder]." William Wirt to James Monroe, Jun. 10, 1806, Monroe Papers, vol. XI, no. 1373.
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ficient security in a like penalty, for his personal appearance before the Judges of the said district Court, on the first day of the next term thereof, to answer the Commonwealth of the offence aforesaid; and failing to give the security required, he is remanded to jail until he shall give such security, or shall be otherwise discharged by the course of law.

William Dandridge (Teller of the Bank of Virginia) a witness on the foregoing examination, being sworn, deposeth and saith: That on Tuesday last [May 27], the prisoner produced to him at the bank of Virginia, a check thereon for the sum of one hundred dollars, drawn in the name of George Wythe esquire, which the deponent paid. That some time after, on examining the check, he suspected it to be a forged one, and he thereupon went to the prisoner and stated that he believed there was a mistake in said check; That the prisoner immediately produced the money and delivered the same to the deponent. That the prisoner frequently presented checks at the bank in the name of the said George Wythe; and the deponent verily believes that six checks now produced in Court were presented by the prisoner, and are all counterfeited.

Peter Tinsley,<sup>28</sup> another witness sworn on the said examination deposeth and saith: That he carried to George Wythe esquire seven checks drawn in his name on the bank of Virginia, who denied having drawn or signed more than one of them.

William Dandridge and Peter Tinsley here in Court acknowledge themselves indebted to his Excellency William H. Cabell governor or chief magistrate of the Commonwealth of Virginia, in the sum of one hundred pounds each, of their respective goods and chattels, lands and tenements, to be levied, and to the said governor and his successors, for the use of the said Common-wealth rendered: Yet upon this Condition, that if the said William Dandridge and Peter Tinsley shall severally make their personal appearance before the Judges of the District Court directed by law to be holden at the Capitol in this City, on the first day of the next term thereof, to give evidence on behalf of the Commonwealth against George W. Swinney, who stands accused of forgery, and shall not depart thence without the leave of the said Court, then this recognizance is to be void.<center>
(Minutes signed) E: Carrington Mayor<sup>29</sup>
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<sup>28</sup> Tinsley was for many years Clerk of the High Court of Chancery.

<sup>29</sup> One item of corrective evidence is brought out in this record. Unofficial reports of 1806, whenever they stated or implied a chronology for Swinney's crimes, invariably indicated that his forgeries and the discovery of them preceded his poisoning of Judge Wythe. On the contrary, Dandridge testified that Swinney was sus-
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The official record of the examination of Swinney on the charge of murder is a remarkably detailed one. Its unusual length doubtless reflects a common impression of the uncommon nature and circumstances of the alleged crime. The record reveals utter desperation on the part of an al-most deranged Swinney. It portrays the mounting growth of suspicion during illnesses that might have been provoked by merely natural causes. It embodies observations that link Swinney conclusively with ratsbane (white arsenic) and yellow arsenic. It records medical symptoms and measures that are not nice but seem necessary. And it indicates reserve on the part of three physicians when they gave under oath their professional judgments whether or not the death of George Wythe could be attributed to arsenic poisoning. This record is as follows:

At a Court of Hustings called and held for the City of Richmond at the Courthouse, on Monday, the 23d. day of June 1806, for the examination of George W. Swinney, who stands accused of murder.<sup>30</sup>
Present

The Same Justices as above.<sup>31</sup>

The prisoner was led to the bar in custody of the Sergeant of this City; where-upon sundry witnesses were sworn and examined, and the prisoner in his

<div style="font-size: 85%;">
pected for the first time of his forgeries after he had presented a sixth forged check at the bank on Tuesday, May 27. That Tuesday will be found to have been two or three days after Swinney had poisoned Wythe. On that Tuesday the Chancellor lay abed in the early stages of his mortal illness. That is one reason—and his charitable, compassionate nature may be another—for the fact that Wythe himself did not testify in court which of the seven checks "carried" to him by Tinsley he had not signed personally. Further details about the six forgeries will be revealed later in this article.

<sup>30</sup> The accusation against Swinney for the alleged murders of "Wythe & Michael Brown the Freed Boy" had resulted, in keeping with Virginia law, from a hearing held on Jun. 18 before Mayor Edward Carrington and two other magistrates or aldermen. On that occasion the examination of witnesses "lasted near Five Hours." The mayor and his two colleagues "were of Opinion that they, Mr. Wythe & Michael, were poisoned by Geo. W Sweeney." The suspect was ordered to be held in jail to await trial by the Hustings Court as a "Court of Examination" on Jun. 23. William DuVal to Thomas Jefferson, [[Jefferson-DuVal Correspondence#William DuVal to Thomas Jefferson.2C 19 June 1806|Jun. 19, 1806]], Jefferson Papers. Cf. Shepherd, ''Statutes'', III, 73-75.

<sup>31</sup> That is to say, the same six who had been present for the trials of earlier cases on Jun. 23: Mayor Edward Carrington, Recorder Samuel Pleasants, Jr., and Aldermen Henry S. Shore, Anderson Barret, David Lambert, and William Richardson. Aldermen William DuVal, William Goodwin, and Thomas Underwood did not sit as judges for this examination. DuVal attended as a witness.
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===Page 554===

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defence fully heard: On consideration whereof, the Court is of opinion that the prisoner is guilty of the offence aforesaid, and doth order that he undergo a trial therefor before the next District Court directed by law to be holden at the Capitol in this City: and thereupon the said George W. Swinney is remanded to jail.<sup>32</sup>

Tarlton Webb,<sup>33</sup> a witness for the Commonwealth on this examination, being sworn, deposeth and saith: That about a fortnight or three weeks be-fore the prisoner was committed to jail, he enquired of the deponent where he could procure any ratsbane? The deponent replied that it was against the law of the United States to have it. The day before the prisoner was apprehended,<sup>34</sup> he came to the house of the deponent's mother, and shewed the depon[en]t something wrapped in paper, which he said was Ratsbane, and in-formed the deponent that he intended to kill himself, and offered to give the deponent some if he wanted to die. The deponent being shown some drugs found in the jail and produced in Court by Mr. [William] Rose,<sup>35</sup> deposes that what the prisoner showed him was like that in Mr. Rose's possession, and that there was about one table spoonful. The prisoner stated to the deponent that he was very unhappy and something pressed upon his mind; but though applied to, would not disclose the cause of his uneasiness to the deponent.

William Rose,<sup>36</sup> another witness sworn on this examination, deposeth and

<div style="font-size: 85%;">
<sup>32</sup> The [[Virginia, June General Court, 1806|Richmond ''Enquirer'', Jun. 24, 1806]], printed the following announcement of the decision: "George W. Swinney was yesterday called before the examining court of this city, on the charge of poisoning his great Uncle, the venerable George Wythe, and a servant boy. He was unanimously remanded to jail for further trial before the district court to be had in September next." Although it was not particularly customary for crime news, especially courtroom news of this tentative sort, to be widely reprinted, this item reappeared in such representative newspapers as the Richmond [[Virginia Argus, 25 June 1806|''Virginia Argus'', Jun. 25, 1806]]; the Alexandria ''Virginia Gazette, & General Advertiser'', Jun. 25, 1806; the Washington, D. C., ''National Intelligencer, and Washington Advertiser'', Jun. 30, 1806, and ''Universal Gazette'', Jul. 3, 1806; the Augusta, Ga., ''Chronicle'', Jul. 12, 1806; and the Savannah, Ga., ''Columbian Museum & Savannah Advertiser'', Jul. 12, 1806, and ''Georgia Republican'', Jul. 15, 1806.

<sup>33</sup> This witness has not been identified positively. His testimony suggests that he was probably a youthful friend of Swinney.

<sup>34</sup> Swinney was arrested on Wednesday, May 28, or Thursday, May 29, according to testimony given in this examination by witness William DuVal, reproduced below. Webb's testimony here to the effect that Swinney told him on May 27 or May 28 that "something pressed upon his [Swinney's] mind" can be, therefore, a veiled reference by Swinney himself to worry and remorse because of the way he had used poison, with results that had not yet proved fatal, and possibly also because of the forgery committed and detected on Tuesday, May 27.

<sup>35</sup> For an identification of William Rose see the next paragraph and footnote 36.

<sup>36</sup> Rose was the public jailor of Richmond. Richmond ''Enquirer'', Jul. 8, 1817. Rose's
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===Page 555===

<blockquote>
saith: That his servant girl Pleasant, went into the garden about twelve o'clock the day after the prisoner was committed to jail and brought the paper this day produced [in court], the contents of which the deponent immediately knew to be arsenic. When the prisoner was committed to jail, the deponent did not search him; but about an hour and a half after, or thereabouts, hearing that it was probable he had pistols, he went into the jail and felt his pocket, and felt that there was a heavy substance wrapped in paper; but supposing that it might be coppers, or some few eighteen penny pieces, he did not take it out of his pocket. The prisoner had the use of the debtors room and the jail yard at his option. As soon [as] the arsenic was found the deponent suspected that Mr. Wythe was poisoned.

Samuel McCraw,<sup>37</sup> another witness sworn on the said examination, deposeth and saith; That being informed by Mr. Rose, that arsenic had been found in his garden, he proposed to have the servant carried into the garden to see the place where [the arsenic had been] found, to ascertain whether it was deposited there, or thrown from the jail yard. That at the place where the servant stated the arsenic to have been found, the deponent found two papers lying about eighteen inches apart: That the crude arsenic had penetrated a little into the earth, and there were two plants one a fennel, the other a beat [''sic''], broken off as he supposed by the throwing the arsenic over the jail wall: The deponent thinks it must have come from the jail yard. The beat [''sic''] that was wounded was next [i.e., nearer] the jail wall and was wounded considerably farther from the ground than the fennel. On the first of June, one week after Mr. Wythe's attack [began], the deponent was re-quested to go to attest [the final codicil to] Mr. Wythe's will. Mr. Wythe re-quested the prisoner's room and trunk to be searched. The deponent, with others, was conducted to the room where the prisoner lodged, opened the chest and found a port folio with a quire of blotting paper, which the deponent believes to be of the same kind with what was found wrapped round the arsenic found in the garden. In the prisoner's room on a writing table, the deponent found a paper on which were a half a dozen strawberries with the appearance of arsenic having been sprinkled over them. He found a phial with an appearance of having had a liquid, some of which adhered to the side of the phial, and on examination was believed to have been a mixture of testimony and that of the next witness make it plain that the former's residence and garden adjoined the jail.

<div style="font-size: 85%;">
testimony and that of the next witness make it plain that the former's residence and garden adjoined the jail.

<sup>37</sup> McCraw was one of the four witnesses who signed the final codicil to Wythe's will. Minor, "[[Memoir of the Author]]," in Wythe, ''Decisions'', xxxviii-xxxix.
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===Page 556===

<blockquote>
arsenic and sulphur. He also found two pieces of coarse brown paper, with something adhering to each, which was also declared to be arsenic and sulphur. The deponent frequently visited Mr. Wythe in his last illness and he appeared to be in very great agony from the first time to his death. Some time before the death of Mr. Wythe, while this deponent was sitting by him, Mr. Wythe exclaimed, cut me—the deponent supposed he wanted to have his flannel cut loose which the deponent accordingly did, but which gave apparent displeasure to Mr. Wythe, who then putting his hand to his throat and heart again called out, cut me, but could make no further explanation: this induced a belief in the deponent and those present that it was his wish to be opened after his death. The deponent never did hear Mr. Wythe express any suspicion of having been poisoned.

Fleming Russell<sup>38</sup> another witness sworn on the said examination deposeth and saith; That the day he received the warrant [for the arrest of Swinney] he went to Mr. Wythe's and found the prisoner: when he showed the prisoner the warrant and carried him to Major DuVal's & discovered he had no pistols, took his knife from him, and put his hand in his coat pocket, he felt very distinctly that he had two separate parcels of something wraped up in paper in his pocket but made no further search. After the prisoner was committed to jail, the deponent informed Mr. Rose, that the prisoner had some-thing else in his coat pocket and advised him to make a search, but did not go with Mr. Rose to make it.

Taylor Williams<sup>39</sup> a witness sworn on the said examination deposeth and saith; That about three weeks before the prisoner was apprehended, he mentioned something to the deponent about poison. The deponent informed him that copperas [i.e., crystallized ferrous sulphate] and water was poison. In about six or seven days after, the prisoner began a conversation with the deponent about poison: the deponent then told him ratsbane was poison, and that a gentleman of his acquaintance used it for the purpose of killing rats, and that [it] was to be bought in the shops, but does not recollect with certainty whether the prisoner asked him where it might be had.

Major William DuVal<sup>40</sup> another witness sworn on said examination de-

<div style="font-size: 85%;">
<sup>38</sup> This witness has not been identified. Judging from his testimony, he must have been a Richmond police officer.

<sup>39</sup> Williams appears from his testimony to have been a young friend of Swinney.

<sup>40</sup> William DuVal was of Huguenot descent, an officer during the Revolutionary War, an attorney, a member of the Virginia General Assembly, a magistrate of Richmond who had served as mayor during 1805-1806, and an intimate friend of Wythe, whose residence was also located in the square bounded by Grace, Sixth, Franklin,
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===Page 557===

<blockquote>
poseth and saith; that on the 25th day of May, he went to see Mr. Wythe, without knowing he was sick, and found him very ill[,] extended on his back. Mr. Wythe said he had not caught cold, that he was as well as usual in the morning, & eat his brea[k]fast as usual; but was immediately taken extremely ill, confined on his back except when forced up, which was upwards of forty times, and had fifteen large evacuations. After the prisoner was committed for the forgery he applied to the deponent by letter to be bailed. Mr. Wythe would have nothing to do with bailing [Swinney]. Mr. Wythe said he was taken ill on the twenty fifth day of May, about nine o'clock after having eat his break-fast; that on wednesday or thursday after, the prisoner was apprehended. Mr. Wythe requested that the prisoner's room and trunk might be searched, which request he repeated frequently, and finally on the first of June prevailed on Mr. McCraw and some other gentlemen who searched the room and trunk and found some papers with something adhereing to them which was declared by Doctor Greenhow<sup>41</sup> to be arsenic. The deponent saw the appearance of arsenic in an out house of Mr. Wythe's, in his yard, used as a shop; and [de-poseth] that some was also found in an old smoak house on a wheel barrow; which on being tried with a pin was proved to be arsenic. On thursday before Mr. Wythe's death he made an ejaculation and declared he was murdered in a low tone of voice. It was generally believed that Mr. Wythe had left the prisoner a great portion of his estate, and known that he had made some pro-vision for the mulatto boy, [Michael] Brown.

Samuel Greenhow<sup>42</sup> another witness sworn on said examination gave the same evidence upon the search of the prisoners room and trunk with McCraw.
and Fifth Streets. DuVal died in Buckingham County in 1842 at the age of 93. W. Asbury Christian, ''Richmond: Her Past and Present'' (Richmond, 1912), 57, 545; Richmond ''Enquirer'', Jan. 13, 1842, and May 13, 1842.

<div style="font-size: 85%;">
<sup>41</sup> The Greenhow to whom DuVal referred may have been the next witness, identified in footnote 42, who is known to have participated in the search of Swinney's room but is not known to have had any claim to the title of Doctor. Conceivably, on the other hand, this Doctor Greenhow may have been the Doctor James G. Greenhow who was living in Richmond in 1815. Blanton, ''Medicine in Virginia in the Nineteenth Century'', 246, 445, citing the Richmond ''Virginia Argus'', Mar. 1, 1815.

<sup>42</sup> Samuel Greenhow issued, as "Principal Agent," a call for the annual meeting in 1809 of the Mutual Assurance Society, the well-known, pioneer Virginia fire insurance company. Richmond ''Enquirer'', Dec. 24, 1808. With men like the Reverend John D. Blair, the Reverend John Buchanan, the Reverend John Holt Rice, and William Munford, Samuel Greenhow was a charter member of the Board of Managers of the Virginia Bible Society, which was organized in Jul., 1813. Christian, ''Richmond'', 87. Greenhow was one of the four witnesses who signed the final codicil to Wythe's will. Minor, "[[Memoir of the Author]]" in Wythe, ''Decisions'', xxxviii-xxxix.
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===Page 558===

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William Price<sup>43</sup> another witness sworn on said examination, gave the same evidence as McCraw and Greenhow on the subject of the search of the prisoner's room, and [substantiated the testimony] of McCraw on the subject of Mr. Wythe’s request to be cut. Mr. McCraw mentioned at that time that he supposed Mr. Wythe wanted to be cut open. Mr. Wythe appeared to be in great agony during his illness, and more particularly when moved.

Nelson Abbott<sup>44</sup> another witness sworn on said examination, deposeth and saith, that on saturday the 24th day of May last, he put an axe, now produced [in court], into a shop in Mr. Wythe’s yard, which he [Wythe] had lent him [Abbott] for a work shop; that on the 27th he went to Hanover and returned on friday the 30th when he discovered the arsenic in its present situation, and a hammer much stained with yellow, which has since been cleaned. The negroes in the shop said the prisoner had beat something they did not know what on the side of the ax with the hammer.

William Claiborne<sup>45</sup> another witness sworn on the said examination deposeth and saith: That he went to Mr. Wythe's the wednesday after his illness [began], who informed him that the Sunday preceding in the morning, he was as well as usual, immediately after breakfast he was taken with a colarimorbus [cholera morbus] and then a violent lax, went forty times that day, and had at least fifteen large evacuations: That on Saturday night he supped [i.e., on Saturday night, May 24, Wythe had supped] on milk and strawberries. Mr. Wythe said all the negroes [of his household] were taken [sick] at the same time. The deponent went into the kitchen and found most of them very ill. He then went to Major DuVal's, and expressed his opinion that the family were poisoned; and suspected the prisoner in consequence of his having been detected [on the previous day, May 27] in the forgery, as the death of Mr. Wythe before the detection could only prevent an alteration in his will which the deponent believed was much in favor of the prisoner. The deponent frequently told the prisoner that he would be well provided for by Mr. Wythe if he behaved well. After the death of the yellow boy [Michael Brown], the deponent was told by some of the negroes that arsenic was found in the outhouses. The deponent took some off the wheelbarrow in the old smoke house, applied fire to it and found from the smell that it was arsenic. The deponent asked Mr. Wythe whether the prisoner break-

<div style="font-size: 85%;">
<sup>43</sup> William Price was another of the witnesses to the final codicil to Wythe's will. Minor, "[[Memoir of the Author]]," in Wythe, ''Decisions'', xxxviii-xxxix.

<sup>44</sup> No information to identify this witness has been discovered.

<sup>45</sup> William Claiborne was the father of W. C. C. Claiborne, Governor of the Territory of Orleans. Richmond ''Enquirer'', Oct. 3, 1809.
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===Page 559===

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fasted with him the morning before he [Wythe] was taken [sick]. At first he did not answer. Afterwards he said he did not know, he [Swinney] was always called to his breakfast, but sometimes took no thing to eat or drink. Mr. Wythe observed he died in peace with all the world, and said he should leave directions for his executor to search the prisoner's trunk. This took place after the death of the boy Michael [on Sunday morning, June <sup>46</sup>], about sunset on the first of June.

[[wikipedia:Edmund Randolph|Edmund Randolph]],<sup>47</sup> being also sworn, deposeth and saith: That on Sunday the first of June about nine o'clock [A.M.], Major DuVal informed the deponent of the death of Michael from poison and [reported] Mr. Wythe as probably dying with the same. Mr. Wythe told the deponent he had supped on strawberries and milk the Saturday before he was taken ill. He wished his will to be altered so as to give to the prisoner's brothers and sisters what he had given him. The deponent made the alteration and then returned home, and afterwards went again to Mr. Wythe and informed him of the death of Michael Brown. The former codicil to the will was then destroyed and the present one made. On Wednesday the fourth of June, the deponent was in-formed by old Lydia [Broadnax] that more marks of poison had been discovered. The deponent went into the shop and saw Abbot's ax. The negro<sup>48</sup>

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<sup>46</sup> George Wythe said in the final codicil to his will, dated Jun. 1, 1806, that he had been told that Michael Brown had died that morning. Minor, "[[Memoir of the Author]]," in Wythe, ''Decisions'', xxxviii-xxxix. An almost contemporary letter also refers to Brown's death on Sunday morning, Jun. 1. William DuVal to Thomas Jefferson, [[Jefferson-DuVal Correspondence#William DuVal to Thomas Jefferson.2C 4 June 1806|Jun. 4, 1806]], Jefferson Papers.

<sup>47</sup> Edmund Randolph, the first Attorney General both of the Commonwealth of Virginia and of the United States, wrote and witnessed the final codicil to Wythe's will. See his testimony here given and Minor, "[[Memoir of the Author]]," in Wythe, ''Decisions'', xxxviii-xxxix. Randolph's career had overlapped Wythe's through the past thirty years—for example, in the Virginia conventions of 1776 and 1788. The first of the two codicils mentioned by Randolph in his testimony evidently devised to George Wythe Swinney's brothers and sisters only what Wythe had formerly bequeathed to Swinney. The second of the two codicils mentioned by Randolph devised to George Wythe Swinney's brothers and sisters everything that Wythe had formerly bequeathed both to Swinney and to Michael Brown. The will and its codicils dated Jan. 19 and Feb. 24, 1806, were proved in the General Court of Virginia on Jun. ii, 1806, by the oaths of Edmund Randolph and Peter Tinsley; and the final codicil, dated Jun. 1, 1806, was proved by the oaths of Samuel McCraw, William Price, and Edmund Randolph. For a printed copy of the will and its three validated codicils see Minor, ''ibid''. An attested manuscript copy is filed under Jun., 1806, in the Jefferson Papers.

<sup>48</sup> This reference to a certain Negro is not as precise as we might wish. Doubtless, however, Randolph talked on Jun. 4 with a Negro man employed in Nelson Abbott's workshop. Possibly this man was one of the same "negroes in the shop" who, according to Abbott's deposition, had told Abbott on May 30 that they did not
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===Page 560===

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was uncertain whether [it was on] the 24th or 26th of May, that the prisoner had caused the appearances [of poisons in the workshop]; but at last settled that it was on Saturday [May 24] when he found the prisoner in the shop, and one of the doors forced, and the prisoner was in the act of pounding some-thing on the axe. The prisoner asked him what it was? the negro replied he believed it was ratsbane. The prisoner then scraped it as clean as he could off the axe and folded it up in a piece of paper, wiping the axe with shavings. It was generally understood and believed that Mr. Wythe had left the bulk of his estate to the prisoner.

Doctor James McClurg,<sup>49</sup> another witness, being sworn, deposeth: That he was present at the opening of the body of Michael Brown. The lower part of the stomach was very much inflamed and had the appearance of the black vomit. The deponent went to visit Mr. Wythe on the day before the boy died and found him with a fever, his tongue very foul, had had no passage for twelve hours, and was free from pain. The appearance of the boy was such as arsenic might have produced; but such as might also have been produced by a great collection of bile. The deponent was also present at the opening the body of Mr. Wythe. The whole of his stomach and intestines had an uncommonly bloody appearance, that if produced by arsenic, in his [McClurg's] opinion, death would have ensued much sooner. Mr. Wythe had been frequently attacked with disordered bowells within three years last past.

Doctor James D. McCaw,<sup>50</sup> being also sworn, deposeth: That he was called ''know'' what substance Swinney had pounded into powder. In slight but not necessarily contradictory contrast, the Negro of whom Randolph testified simply ''believed'' on May 24 that the substance was ratsbane.

<div style="font-size: 85%;">
<sup>49</sup> Under the reorganization of the College of William and Mary instigated by Thomas Jefferson in 1779, James McClurg (1746-1823), Edinburgh-trained physician, had been one of Wythe's four colleagues in the faculty. For three years Dr. McClurg held the newly created chair of the professor of anatomy and medicine. Like Wythe, McClurg went to Philadelphia in 1787 to attend the convention from which emerged the Federal Constitution. McClurg was chosen to be Richmond's mayor in 1797, 1800, and 1803. For a quarter of a century he was one of the community's out-standing physicians. When the Medical Society of Virginia was organized in 1820, he was elected its first president. Although he was too infirm to take an active part in its affairs, he was re-elected in the next year. Blanton, ''Medicine in Virginia in the Nineteenth Century'', 13, 75-76; Christian, ''Richmond'', 545.

<sup>50</sup> James Drew McCaw, M.D., was one of the founders of the Medical Society of Virginia. His father, Dr. James McCaw, founded what might be called a Virginia medical dynasty destined to last five generations. Blanton, ''Medicine in Virginia in the Nineteenth Century'', 116-117, 261, 367. James D. McCaw's offer of 1802 to inoculate the poor of Richmond against smallpox had been accepted by the Common Hall or Council. Richmond ''Examiner'', Jun. 2, 1802. Judging by James D. McCaw's testi-
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===Page 561===

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to attend Mr Wythe on the 26th of May between four and five o'clock. He had been up with a violent puking & purging, and the deponent gave him an opiate, after which he got better, and was better until the discovery of the prisoner's forgery [on Tuesday, May 27], when he became worse and continued to grow worse. The deponent saw the boy [Michael Brown] on the day before his death, when he had a fever and complained of great pain. The deponent saw him opened after his death, and thinks that his death might have been occasioned by a great accumulation of bile.

Doctor William Foushee,<sup>51</sup> being sworn, deposeth: That he attended the opening of Mr Wythe's body in the presence of many other physicians.<sup>52</sup> The stomach was very much inflamed, and appeared as if a new inflamation was coming on. There was very little bile in the liver. The same appearance that his stomach and intestines exhibited might have been produced by arsenic, or any other acrid matter.

James McClurg, William Foushee, James D. McCaw, William Rose, Samuel McCraw, Fleming Russell, William Claiborne, William Price (Register) Nelson Abbott and Taylor Williams,<sup>53</sup> here in Court acknowledge themselves

<div style="font-size: 85%;">
mony, he seems to have been more nearly the family physician to the Wythe household than any of the other physicians whose names occur in records concerning the Chancellor's last illness. To be compared with the recorded testimony of Dr. McClurg and that of Dr. McCaw concerning the autopsy on the body of Michael
Brown is DuVal's letter to Jefferson: "As a Magistrate I requested four eminent Physicians to open the body of the Boy. They did so; from the inflamation on the Stomach & Bowels they said that it was the kind of Inflamation produced by Poison." William DuVal to Thomas Jefferson, [[Jefferson-DuVal Correspondence#William DuVal to Thomas Jefferson.2C 4 June 1806|Jun. 4, 1806]], Jefferson Papers.

<sup>51</sup> William Foushee, M.D., had been born in the Northern Neck in 1749. Like McClurg, he studied medicine in Edinburgh. He served as Richmond's first mayor, 1782-1783, as the town's postmaster for several years, and as the president of its Common Hall or town council for several years. He also served in both the legislative and executive branches of the state government. For many years he presided over the James River Company's internal navigation improvement projects. The General Assembly named him among the charter trustees of the Richmond Academy in 1802. Twenty years later the Medical Society of Virginia elected him its second president. When he died in 1824, he was almost seventy-five years old and was said to have been Richmond's oldest inhabitant. His death evoked an unusually detailed obituary. Christian, ''Richmond'', 57-58, 545; Blanton, ''Medicine in Virginia in the Nineteenth Century'', 75-76; Richmond ''Enquirer'', Aug. 24, 1824.

<sup>52</sup> DuVal reported to Jefferson that William Foushee, James D. McCaw, James McClurg, and two other physicians performed the autopsy on Wythe's body on the day of his death. DuVal stated simply that they found "considerable inflamation in the Stomach," but he added in the same context that it was "strongly suspected" that Wythe and Michael Brown had been poisoned with yellow arsenic by George Wythe Swinney. William DuVal to Thomas Jefferson, [[Jefferson-DuVal Correspondence#William DuVal to Thomas Jefferson.2C 8 June 1806|Jun. 8, 1806]], Jefferson Papers.

<sup>53</sup> It may be highly significant that four of the fourteen witnesses were not
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severally indebted to his Excellency William H. Cabell governor or chief magistrate of the Commonwealth of Virginia, in the sum of one hundred pounds each, of their respective goods and chattels, lands and tenements, to be levied, and to the said governor and his successors, for the use of the said Common- wealth rendered: Yet upon this Condition, that if the said James McClurg, William Foushee, James D. McCaw, William Rose, Samuel McCraw, Fleming Russell, William Claiborne, William Price (Register) Nelson Abbott and Taylor Williams, shall severally make their personal appearance before the Judges of the District Court directed by law to be holden at the Capitol in this City on the first day of the next term of that Court, to give evidence on behalf of the Commonwealth against George W. Swinney, who stands accused of murder, and shall not depart thence without the leave of the said Court, this recognizance is to be void.

(Minutes signed) E: Carrington, Mayor

The depositions of the sixteen witnesses in the two proceedings of June 2 and 23 make Swinney's motives for murder clearer than other contemporary records. Obviously, that troubled knave had tried to solve more than one of his problems at once. By a single desperate deed he might forestall discovery of his forgeries, prevent any resultant reduction or cancellation of the legacy he would receive from Wythe, and claim his inheritance prematurely.

But the second Hustings Court record does not enable us to determine with finality precisely when and how Swinney committed his acts of murder. None of the testimony links arsenic with the coffee served in Wythe's cottage, according to the traditional story of the poisonings, at breakfast on Sunday, May 25. To contrary import are the depositions of Claiborne, McCraw, and Randolph. Their assertions under oath indicate that Swinney had mixed some arsenic with strawberries and that Wythe ate strawberries for supper on Saturday, May 24. Wythe's breakfast coffee may have become the supposed vehicle for the poison on the invalid ground of reasoning of the ''post hoc, propter hoc'' type. Actually, so far as we can tell,

placed under bond to be available to serve as witnesses in the forthcoming trial of Swinney on the charge of murder before the District Court. The four who were exempted from such an obligation were William DuVal, Samuel Greenhow, Edmund Randolph, and Tarlton Webb. While in some respects their testimony before the Hustings Court merely confirmed that of other witnesses, in these respects, and more especially in reference to other observations concerning which others did not testify, the evidence submitted by these four could not be omitted without weakening the case against Swinney.

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he may have consumed poisoned foods at both meals. A fatal dose of arsenic usually produces acute symptoms within about an hour after it enters the human stomach, and death usually follows within one to three days. Wythe's case was not a typical one in the latter respect, and we have scant cause to assume that it was a normal one in the former respect. Fatal dosages of arsenic have been known in rare instances to cause no symptom for as many as twelve hours, particularly if the poison was ad- ministered in solid rather than liquid form and if a full meal was consumed with it; and death has been known to result as much as two weeks after the appearance of symptoms, as it did in Wythe's case. An inexperienced, experimenting Swinney may have underestimated on May 24 the amount of arsenic required to accomplish his premeditated purpose. He may have awaked the next morning to find that his attempt of the previous afternoon or evening had failed. He may then have added a second and larger quantity of arsenic to the breakfast menu. Neither this nor any alternative possibility can be proved conclusively from the available evidence.

More important than questions about details of that sort is the official record's revelation of the limited, inconclusive nature of the physicians' findings in the two autopsies. They did not exhaust every means known to the medical scientists and chemists of their generation to determine whether or not the deaths of Michael Brown and George Wythe had been unnatural ones. One authoritative treatise, for example, published in 1832 but embodying comparatively little that had been learned since 1806, devoted fully a hundred pages to its discussion of arsenic poisoning, forty of them to various definitive tests by which the presence of arsenic can be determined. Its author commented on the ease with which that almost tasteless and odorless chemical element could be procured in various forms and compounds and could be administered surreptitiously. Then he added,

"It is fortunate, therefore, that there are few substances in nature, and perhaps hardly any other poison, whose presence can be detected in such minute quantities and with so great certainty."<sup>54</sup> The inflamed tissues observed by the Richmond doctors were ambiguous. The same kind of examination today would do little more, if any, to pin down positively the cause of such deaths, for gastrointestinal inflammations of quite similar

<div style="font-size: 85%;">
<sup>54</sup> Robert Christison, ''A Treatise on Poisons, in Relation to Medical Jurisprudence, Physiology, and the Practice of Physic'' (2d ed., Edinburgh, 1832), 223. This volume's treatment of arsenic poisoning covers pp. 223-324.
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appearance can result from any of several distinct causes, both natural and unnatural. The Richmond physicians' post-mortem inspections should not have ended short of a few simple laboratory procedures. Standard analyses of that kind would almost certainly have proved beyond question whether or not arsenic had ended the lives of the youthful Michael Brown and the aged George Wythe.

The above testimony in both of the suits of the Commonwealth ''v.'' Swinney confirms an undisputed conclusion reached by all who have ever studied the matter: Wythe himself became fully convinced on his death- bed that Swinney was a forger and a murderer. Yet, in fact, that young man escaped legal punishment for both offenses. His road to freedom was, however, a tortuous one. Sometime during the summer of 1806 the charges against him were referred to a grand jury. It returned true bills. Thus it became the third judicial body to render a verdict of guilt against Swinney on each accusation, for the same conclusion had already been reached on each count by one or more of Richmond's magistrates and by the Hustings Court. Specifically, the grand jury cleared the way for the trial of Swinney by the District Court on each of six distinct indictments—one for the murder of Wythe, another for that of Michael Brown, and four for forgeries of Wythe's name on as many checks.<sup>55</sup>

On September 2, 1806, the District Court proceeded to tackle what the [[Respectfully Dedicated to the Legislature of Virginia|Richmond ''Enquirer'']] termed "the celebrated trial of George W. Sweeney, on the charge of administering arsenic to his great Uncle the venerable George Wythe." Judges Joseph Prentis and John Tyler, Sr., whose son of the same name was destined to become the tenth President of the United States, were the two members of Virginia's General Court assigned to preside over this session in the Richmond district.<sup>56</sup> Presumably, the two judges' judicial robes hid the mourning bands of crape that they and other members of the General Court had resolved to wear on their left arms for three months in tribute to the jurist Virginia had lost.<sup>57</sup> At the

<div style="font-size: 85%;">
<sup>55</sup> There is no record of any decision in regard to the other two checks that William Dandridge and Peter Tinsley had testified were, in the opinions of Dandridge and Wythe, also forged.

<sup>56</sup> [[Richmond Enquirer, 9 September 1806|Richmond ''Enquirer'', Sept. 9, 1806]].

<sup>57</sup> Ibid., Jun. 24, 1806; [[Virginia Argus, 17 June 1806|Richmond ''Virginia Argus'', Jun. 17, 1806]]; Richmond ''Impartial Observer'', Jun. 21, 1806. The Governor and Council had resolved on Jun. 14, "in honour of the deceased," to wear black bands similarly for one month as an "outward Sign of respect to his memory." Journals of the Council of Virginia (MSS. in the Virginia State Library), XXVII, 448. When the Virginia General Assembly convened in Dec., 1806, its members also resolved unanimously to "wear a badge of
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prosecuting attorney's table sat Philip Norborne Nicholas,<sup>58</sup> the popular young Attorney General of Virginia and successful leader in recent years of the Jeffersonian Republican party in the state. Nicholas had known Wythe while the Chancellor had still resided in Williamsburg. More recently they had been associated in various legal and political activities. Presumably, Nicholas had every reason to prosecute the case with all the vigor at his command.

But the shocked, incensed atmosphere of June had doubtless grown calmer by September, and impressive talents had been aligned on Swinney's side as counsel for the defense.<sup>59</sup> One of these lawyers was the same Edmund Randolph who had written the codicil disinheriting Swinney, the same Randolph who had given damaging testimony against him in the Hustings Court. The other lawyer at Swinney's side was the same William Wirt who had expressed a hope that no attorney would be found to defend him, so that he would be left to suffer the fate he deserved.

Wirt had been contemplating at the beginning of the summer a desire to move from Norfolk to Richmond, for his wife found Norfolk's summers unbearable. He had concluded at that distance within a month after Wythe's death that Swinney could conceivably be innocent of murder. Judge William Nelson of the General Court had told him that "there was a difference of opinion" among Richmond doctors as to the cause of the Chancellor's death and that "the eminent McClurg, amongst others, had pronounced that his death was caused simply by bile and not by poison." Then a brother of Swinney's distressed mother had traveled eastward to implore Wirt to serve as an attorney for the defense.<sup>60</sup>

Although Wirt had already decided before that visit that "it would not be so horrible a thing to defend" Swinney "as, at first, I had thought it," the plea made by his uncle posed a problem of conscience and of reputation. By letter Wirt asked his wife, "What shall I do?" And then he proceeded to influence her decision. "If there is no moral or professional impropriety in it, I know that it might be done in a manner which would avert the displeasure of every one from me, and give me a splendid ''debut'' in the metropolis. Judge Nelson says I ought not to hesitate a moment

<div style="font-size: 85%;">
mourning" for one month. Washington, D.C., [[National Intelligencer, 15 December 1806|''National Intelligencer, and Washington Advertiser'', Dec. 15, 1806]].

<sup>59</sup> ''Ibid.''

<sup>60</sup> William Wirt to his wife, Jul. 13, 1806, Kennedy, ''William Wirt'', I, 152-153.
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<blockquote>
to do it; that no one can justly censure me for it; and, for his own part, he thinks it highly proper that the young man should be defended. Being himself a relation of Judge Wythe's, and having the most delicate sense of propriety, I am disposed to confide very much in his opinion."'

The issue was settled within ten days. Nelson reiterated his opinion as to "the perfect propriety of the step." Mrs. Wirt evidently protested that her husband need not fear that she would suffer reproach. "I shall defend young Swinney under your counsel," he wrote her. "My conscience is perfectly clear, from the accounts I hear of the conflicting evidence."<sup>62</sup>

Records of the District Court, in which Randolph and Wirt undertook to save the life of George Wythe Swinney, are not extant; apparently they did not survive the fire that accompanied the Confederate evacuation of Richmond in April, 1865. Only from other sources can we learn whether or not the defense attorneys achieved their goal. The Richmond ''Enquirer'' reported succinctly the results of what was probably a day replete with courtroom drama and legal technicalities. "After an able and eloquent discussion" by counsel for the Commonwealth and for Swinney, read that newspaper's summary, "the jury retired, and in a few minutes, brought in the verdict of ''not guilty''. A similar indictment against him [Swinney] for the poisoning of Michael, a mulatto boy (who lived with Mr. Wythe) was quashed without a trial."<sup>63</sup>

There could have been no doubt whatsoever that Virginia's laws of 1806 defined murder by poisoning, if it were committed by a free person, to be murder of the first degree, punishable by death.<sup>64</sup>Some other ex- planation of the jury's astonishing verdict must be sought. Editor Thomas Ritchie offered his readers one hint why Randolph and Wirt had been able to win a quick decision in favor of their despised client. Some of the "strongest testimony" that had been heard by the Hustings Court and by the grand jury, Ritchie remarked, "was kept back from the petit jury" in the District Court. "The reason is, that it was gleaned from the evidence of negroes, which is not permitted by our laws to go against a white

<div style="font-size: 85%;">
<sup>61</sup> ''Ibid''. Nelson's distant kinship to Wythe was evidently through the second Mrs. Wythe, who had been a Taliaferro. See a copy of the will of Rebecca Cocke Taliaferro of "Powhatan," James City County, Nov. 12, 1810, in the possession of Colonial Williamsburg.

<sup>62</sup> William Wirt to his wife, Jul. 23, 1806, Kennedy, ''[[Life of William Wirt#Page 154|William Wirt]]'', 1, 154.

<sup>63</sup> [[Richmond Enquirer, 9 September 1806|Richmond ''Enquirer'', Sept. 9, 1806]].

<sup>64</sup> the enactments of 1796 and 1803, Shepherd, ''Statutes'', II, 5-14 and 405-406, respectively.
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man."<sup>65</sup> Actually, the reason assigned by the editor would have been more nearly true if he had phrased it more carefully. As far back as 1732 and as recently as 1801 the statutes of Virginia had stipulated that a Negro or a mulatto could be qualified as a witness only in a lawsuit brought against a Negro or a mulatto or by the commonwealth for one.<sup>66</sup> That is why Lydia Broadnax had not told the Hustings Court in June whatever she knew about the involvement of George Wythe Swinney in the deaths of Michael Brown and George Wythe.

The legal disability of Negroes to testify against Swinney had loomed large in people's thinking about the prospective trials of that ingrate for murder ever since Michael had died. Even before William Wirt learned with certainty that Wythe had also been a victim, Wirt had realized that one law might prevent the fulfillment of justice under another. "The chain of circumstances fix the guilt of Sweney beyond reach of doubt," Wirt had then been willing to assert, "but some of those circumstances, material to his conviction in a court of law, depend, it seems, on black persons, & so he will escape for the poison[ings]. he is under prosecution for the forgery & of that must be convicted."<sup>67</sup>

One logical question is answered neither by Ritchie's explanation nor by Wirt's prophecy. Why was any of the evidence that had been admissible in the three previous proceedings—evidence that had resulted in three verdicts of guilt—not presented in the District Court? No record answers that question. Possibly the District Court refused to hear some of the testimony that had been given before the Hustings Court. Evidence given by the white witnesses in June concerning what Negroes had ob-

<div style="font-size: 85%;">
<sup>65</sup> [[Richmond Enquirer, 9 September 1806|Richmond ''Enquirer'', Sept. 9, 1806]].

<sup>66</sup> The exact words of the law of 1801 were: "Any negro or mulatto, bond or free, shall be a good witness in pleas of the commonwealth for or against negroes or mulattoes, bond or free, or in civil pleas where free negroes or mulattoes shall alone be parties." Shepherd, ''Statutes'', II, 300. The statute of 1785 was to the same effect, although its provisions were couched in negative terms and omitted the words "bond" and "free" in each of the five instances of their use in the enactment of 1806. Hening, ''Statutes'', XII (Richmond, 1823), 182-183. Digests of the 1732 and 1748 statutes and of related legislation can be found conveniently in June Purcell Guild, ''Black Laws of Virginia: A Summary of the Legislative Acts of Virginia concerning Negroes from Earliest Times to the Present'' (Richmond, 1936), 154-155.

<sup>67</sup> William Wirt to James Monroe, Jun. 10, 1806, Monroe Papers, vol. XI, no. 1373. Internal evidence in this letter indicates that for the facts he stated Wirt was indebted to a communication written on Jun. 5, 1806, by his brother-in-law, Governor Cabell, and the prophecies Wirt voiced may also have reflected the Governor's thinking as of that date.
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served and had told them may have been ruled inadmissible by Judges Prentis and Tyler because of its Negro source or its hearsay nature. On the other hand, we have no proof acceptable by the ordinary standards of historical criticism that Swinney was acquitted because of the repression of the testimony Lydia Broadnax or other Negroes might have given but for Virginia's laws. Ritchie's allegation about the withholding of testimony "gleaned from the evidence of negroes" remains unsubstantiated, and Wirt's prophecy can be considered to have been merely a recognition of the flimsiness of the circumstantial evidence others would be able to give.

The simple fact remains that no known witness was able to assert in any of the four proceedings that he had actually seen Swinney put poison into food eaten by Michael Brown or by George Wythe. Moreover, no physician is known to have been willing to swear that either of the two autopsies proved that death had been caused by a poison. In other words, the evidence against Swinney was purely circumstantial.

Thomas Ritchie himself had not been hysterical in his attitude toward Swinney during the first days of resentment following the news of the Chancellor's death. The editor had remembered, sanely and circum- spectly, that the accusations against Swinney had not then been proved and that, until and unless they were, he should be presumed innocent. "Every situation in life has its rights and its duties," Ritchie had cautioned his readers. "Let us therefore respect the rights of the accused."<sup>68</sup> If Swinney's two lawyers took advantage in the District Court of every legal technicality to protect their client's rights, Ritchie should have been among the last to imply any criticism of them, for they had placed themselves under obligation to do so.

In any case, George Wythe was dead. Another man's life was at stake. It is the very genius of the legal system Wythe had received from his forefathers and had himself helped to develop and to refine that this second life should not be taken lightly. Since we do not know in detail what transpired in that Richmond courtroom on September 2, 1806, we are left in the position of being forced to accept at face value the jury's final decision, which was that Swinney had not been proved beyond reasonable doubt to have murdered George Wythe and that he was therefore ''not guilty''. Similarly, we must accept the opinion of Attorney General Nicholas that it would have been useless to try to prove beyond reasonable doubt that Swinney had murdered Michael Brown.

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<sup>68</sup> [[Richmond Enquirer, 10 June 1806|Richmond ''Enquirer'', Jun. 10, 1806]].
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Nevertheless, we can record the fact that those jurymen are the only persons known to have expressed at any time in or since 1806 an opinion that Swinney was not a murderer. William Wirt had concluded that Swinney could conceivably be innocent of the charge, but Wirt left no record now extant that he actually believed Swinney to be the victim of an unjust accusation. The common impression throughout the summer of 1806 was that Swinney had committed two premeditated murders. That opinion has remained unchanged to this day.

George Wythe Swinney had escaped death by hanging. It remained to be seen whether or not he would become permanently branded a convicted forger. Within another twenty-four hours he received a tentative answer to this second question. On Thursday, September 3, 1806, he was adjudged guilty on two of the forgery indictments.<sup>69</sup> But these verdicts were not allowed to stand unquestioned. Within ten days William Wirt pleaded successfully, "in an eloquent and ingenious speech" addressed to Judges Prentis and Tyler of the District Court, for arrest of judgment. Wirt's objections were considered acceptable by the two judges and were referred to the next session of the General Court for approval or rejection.<sup>70</sup> Wirt had changed his mind since his assertion in June that Swinney would doubtless be convicted of the forgery charges.

Someone else had come earlier than Wirt to the conclusion that the laws of Virginia would not justify inflicting punishment on Swinney for having obtained certain things of value at the state's bank by using forged signatures. Indeed, former Governor Page had decided in June that what Swinney had done at the Bank of Virginia was a crime only against God, not against any law of the Commonwealth of Virginia. "As to this young Man's Forgeries," Page had commented in highly moralistic vein but with a practical twist, "when religion is out of the way, I can see nothing in our law, that could restrain him, or any one else from a free exercise of that lucrative Employment. But for a sense of religion, I myself could not have done a better act for the Benefit of my Wife & Children, than to have . . . died . .. consoled with the pleasing reflection that I had handsomely provided for my Family, in a way permitted, nay chalked out by our Laws." <sup>71</sup>

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<sup>69</sup> [[Richmond Enquirer, 9 September 1806|''Ibid.'', Sept. 9, 1806]].

<sup>70</sup> Richmond ''Virginia Gazette, & General Advertiser'', Sept. 13, 1806.

<sup>71</sup> Page's letter continued: "I could, if under no religious impressions, tell my Wife & Children, that no one would think the worse of them for what I had done; and indeed that they would always be respected in proportion to their riches, and
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Could it be true, as Page thought he perceived, that Swinney had violated no law by his use of counterfeited signatures of George Wythe? Almost entirely so, declared the General Court in two quite technical opinions on November 17, 1806, with Judges Francis T. Brooke, Paul Carrington, Jr., Hugh Holmes, Archibald Stuart, John Tyler, Sr., and Robert White on the bench. They learned that the District Court's jury had convicted Swinney on an indictment for having obtained from the Bank of Virginia on May 27, 1806, a ''banknote'' for $100. In order to do so, he had presented to William Dandridge both a counterfeited letter and a forged check purporting to have been written and signed by Wythe. But the judges also heard that the arrest of judgment had been awarded on the ground that the forgeries of which Swinney had been accused did not actually constitute offences against a Virginia statute enacted in 1789, which was the only law the forgery indictments against him had contrived to mention.<sup>72</sup>

For one thing, William Wirt had argued that the 1789 law "was intended to punish a pre-existing evil" and could not possibly have reference to any bank, since no bank was established in Virginia until "many years" later. In the second place, Wirt contended that the law's phraseology, as well as its date, precluded any possibility of its being applied to the Bank of Virginia. The statute made illegal any deceitful deed, bill of sale, or other such document that would result in the robbery of one or more "private individuals." The bank could not properly be considered a

<div style="font-size: 85%;">
that both I and they would have been despised had I left them poor—that therefore the riches I had acquired for them would secure them respect in this World, and that as to any other, they need not trouble themselves about it—that they ought to enjoy their hearts desire in all things, and say 'let us eat & drink for tomorrow we die.' . . . But believing as I do in a divine revelation, I had rather perish with my Wife & Children through absolute Want, than that any one of us, should do one unjust or dishonest Act." John Page to St. George Tucker, Jun. 29, 1806, Tucker- Coleman Papers.

<sup>72</sup> The law that Swinney was alleged by the indictment to have broken had been adopted on Nov. 18, 1789. It was entitled "An act against those who counterfeit letters or privy tokens, to receive money or goods in other men's names." It provided that "if any person or persons, shall falsely and deceitfully obtain or get into his or their hands or possession, any money, goods or chattels of any other person or persons, by colour and means of any such false token or counterfeit letter, made in any other man's name as is aforesaid; every such person and persons so offending, and being thereof lawfully convicted in the court of the district, in which such offence shall have been committed," shall be subject to a maximum term of one year in prison and to "setting upon the pillory." Hening, ''Statutes'', XIII (Philadelphia, 1823), 22.
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"person or persons" within the meaning of the law. It was "a body corporate, an ideal body," and "no more a person, than the commonwealth of Virginia." Anything, therefore, that Swinney had obtained from the bank could not have been procured in violation of a law that made punishable the getting by false means of "any money, goods or chattels of any other person or persons." And in the third place, Wirt argued, what Swinney had received was not part of "the money or goods of the said George Wythe, because having been delivered under a check not drawn by him, the bank hath no right to charge it to his account."

In connection with the ''banknote'' in question under the first indictment, the General Court found Wirt's claims convincing enough. Its judges concluded that they should grant a permanent arrest of judgment. Thus they reversed the petit jury's verdict that Swinney was guilty; thus they pronounced him innocent of the crime alleged to have occurred on May 27. While Wythe lay on his deathbed that Tuesday, Swinney had perpetrated a forgery, but it was not an unlawful forgery.

The other indictment under which the District Court had found Swinney guilty of a violation of the same statute was quite similar to the first. The second differed in only one significant particular. It involved $50 that Swinney had obtained from the bank by the same means on April 11, 1806, in the form of ''currency''. Wirt's appeal in the District Court for an arrest of judgment had been won on the same three grounds, and they were pleaded anew as sufficient cause for making the temporary ban against sentence upon Swinney a permanent one.

In this instance the General Court did not agree. It refused to accept Wirt's argument that the "''money current''" Swinney had gotten at the bank in April could not properly be charged against the account of Wythe, by virtue of the forged check, and was therefore not Wythe's money until Swinney had acquired possession of it falsely. Evidently, Virginia's supreme tribunal for criminal law decided that neither of Wirt's first two points was valid in respect to either indictment and that the validity of Wirt's third contention depended entirely upon the natures of the two kinds of property the forger had received. In other words, the six judges' two decisions meant, essentially, that the promissory ''banknote'' Swinney obtained on May 27 had not been Wythe's "money, goods or chattels" but that the ''currency'' involved in the similar transaction of April 11 had been. If this distinction seems subtle, thin, and flimsy, it appears to have been not more so than whatever reasoning persuaded the judges to ignore
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Wirt's assertions that the 1789 law was not at all pertinent to the later means of "getting something for nothing" upon which an unconsciously clever forger had stumbled. The chagrined John Page, who had been Governor of Virginia when the state bank was established, had believed on June, 1806, that none of Swinney's forgeries was illegal. Page had been much disconcerted by his discovery that the commonwealth had not foreseen and had not prohibited such misuses of another's signature. The General Court, on the other hand, professed to believe that one of Swinney's forgeries had inadvertently violated a law more than fifteen years old and obviously designed to curb other frauds wrought by means if forgery. Consequently, the court decreed that punishment should be imposed upon Swinney under the second indictment by the District Court.<sup>73</sup>

Nevertheless, according to a report derived from official records that are not now extant, the District Court did not execute its sentence, which was that Swinney should spend one hour in the pillory at Richmond's public market and six months in prison. Contrary to the General Court's decree and for reasons inexplicable today, the District Court is said to have granted Swinney a second trial on the indictment the higher court had upheld, and then the attorney for the commonwealth declined to prosecute the case.<sup>74</sup>

Thus freed, technically at least, of all charges against him, but with a reputation he would never be able to live down locally, the "unfortunate" Swinney "then sought refuge in the West, where his career was brought to a premature and miserable close."<sup>75</sup> So reads one account, written about the middle of the nineteenth century, of the end of the life of

<div style="font-size: 85%;">
<sup>73</sup> William Brockenbrough and Hugh Holmes, ''[[Commonwealth against George Wythe Swinney|Collection of Cases Decided by the General Court of Virginia, Chiefly Relating to the Penal Laws of the Commonwealth, Commencing in the Year 1789 and Ending in 1814, Copied from the Records of Said Court, with Explanatory Notes]]'' (Philadelphia, 1815), 146-151.

<sup>74</sup> Minor, "[[Memoir of the Author]]," in Wythe, ''Decisions'', xxviii. In a footnote on that page Minor asserted: "The records of these proceedings [in the District Court after the return to it of the decree of the General Court in the last of tie suits of the Commonwealth v. Swinney] have been consulted in the office of tie Superior Court of Law for Henrico County." Minor wrote those words in or before 1852. Presumably, reorganizations of Virginia's judicial system between 1806 and 1852 account for the fact that records of the District Court in Richmond for its Apr., 1807, term (the first session it was scheduled to have after the Nov., 186, term of the General Court) had come by 1852 into the custody of the Superior Court of Law for Henrico County. The fire in Richmond during April 2-3, 1865, apparently explains their disappearance.

<sup>75</sup> ''Ibid''.
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the young man to whom George Wythe had been "kinder than a Father."<sup>76</sup> According to the memory of another Richmonder fifty years after George Wythe Swinney had been a defendant in the capital's courtrooms, Swinney went to Tennessee, stole a horse, served a term in a penitentiary, and was "then lost sight of."<sup>77</sup> The forgeries that preceded and led directly to the death of George Wythe may not have been plainly and provably crimes against the Commonwealth of Virginia. But they served one useful purpose, for they pointed out a glaring loophole in Virginia's laws. The state acted promptly to plug that gap. On the last day of the same year the General Assembly adopted and put into immediate effect "An ACT to punish certain thefts and forgeries." That law clearly defined as a crime every deed by which any person should "fraudulently obtain, or aid or assist in obtaining from the Bank of Virginia, or any of its offices of discount and deposit, any bank or post note, or money, by means of any forged or counterfeit check or order whatsoever, knowing the same to be forged or counterfeited." Violators of the new statute, when they were properly found guilty in court, were to be imprisoned for "not less than two, nor more than ten years."<sup>78</sup>

In the final analysis, we may guess, George Wythe Swinney escaped death on the gallows because of three considerations. One of these seems to be the forgiveness Wythe himself gave him. That could not alter one whit Swinney's legal liability to pay the penalty for murder, but it may have influenced, both consciously and unconsciously, the men who prosecuted and defended Swinney, those who testified, the judges who decided what evidence was admissible, and the twelve "good men and true" who retired to a jury room in the September trial. A second determining factor probably was the failure of the physicians to perform complete autopsies and thus to be prepared to assert unequivocally on the witness stand that, in their professional judgments, the deaths of Michael Brown and George Wythe had been caused by arsenic poisoning. Such testimony would have become, quite possibly, the "clincher" that would have strengthened the

<div style="font-size: 85%;">
<sup>76</sup> William DuVal to Thomas Jefferson, [[Jefferson-DuVal Correspondence#William DuVal to Thomas Jefferson.2C 4 June 1806|Jun. 4, 1806]], Jefferson Papers.

<sup>77</sup> Dove, "[[Memorandum Concerning the Death of Chancellor Wythe|Memoranda]]." Although Minor accepted Dr. Dove's recollections they are so untrustworthy in matters that can be checked that the unsubstantiated statements concerning Swinney's life after he escaped the clutches of the law in Richmond made by both Dove and Minor must be considered traditionary rather than supported by valid evidence.

<sup>78</sup> Shepherd, ''Statutes'', III, 289.
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web of circumstantial evidence against Swinney enough to put a knotted rope around his neck. A third presumed factor was inherent in Anglo-American jurisprudence. The doctors and other Virginians who participated as witnesses, attorneys, jurymen, and judges in Swinney's final trial for murder were honorable men. They cleared him of the accusation because, evidently, they thought it important to save the life of a young man who ''might'' be innocent, although he certainly seemed not to be. George Wythe himself would doubtless have had the same respect for the legal principle of a reasonable doubt.

Did Virginia justice suffer a miscarriage in 1806? For want of complete records, we cannot properly lift our second-guessing voices to cry that it went wrong. But we can agree heartily with the opinion held by Wythe himself and never relinquished by most of his sympathetic but straightforward contemporaries—the belief that, by every standard other than the technical ones of the law, Swinney had assuredly done serious wrongs. Like Wythe's survivors, we can only take comfort in the fact that Virginia justice may have avoided adding another wrong to Swinney's and in the fact that his chief victim, Chancellor Wythe himself, the "Virginia Socrates" and the "American Aristides," had achieved on his deathbed, by revoking his generous bequests to Swinney, one final act of obvious equity.
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==See also==

*[[Commonwealth against George Wythe Swinney]]
*[[Honest Lawyer]]
*[[Hustings Court Minutes]]
*[[Hustings Court Order Book]]
*[[Jefferson-DuVal Correspondence]]
*[[Life of William Wirt]]
*[[Memoir of the Author]]
*[[Memoranda Concerning the Death of Chancellor Wythe]]
*[[Murder of George Wythe]]
*[[National Intelligencer, 15 December 1806]]
*[[Richmond Enquirer, 8 July 1806]]
*[[Richmond Enquirer, 10 June 1806]]
*[[Richmond Enquirer, 9 September 1806]]
*[[Virginia Argus, 10 June 1806]]
*[[Virginia Argus, 17 June 1806]]
*[[Virginia Argus, 25 June 1806]]
*[[Virginia, June General Court, 1806]]

==References==
<references/>

==External links==

[[Category:Biographies (Articles)]]
[[Category:Murder of George Wythe]]

Examinations of George Wythe Swinney for Forgery and Murder

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{{DISPLAYTITLE:"Examinations of George Wythe Swinney for Forgery and Murder: A Documentary Essay"}}
[[File:WilliamAndMaryQuarterlyOctober1955Wythe.jpg|thumb|right|400px|Engraved portrait [[George Wythe]] by [[Depictions of Wythe|J.B. Longacre]], from the ''William and Mary Quarterly,'' 3rd ser., 12, no. 4 (October 1955), 512.]]

Wythe scholar W. Edwin Hemphill contributed to a special issue of ''The William and Mary Quarterly'', dedicated to the murder of [[George Wythe]], in October, 1955. The issue was published in accordance with the Marshall-Wythe celebration at the [http://law.wm.edu/ College of William & Mary Law School] on September 25, 1954, for the bicentennial of [[John Marshall|John Marshall's]] birth. The journal pairs Hemphill's essay on "[[Media:HemphillExaminationsOfGeorgeWytheSwinneyOctober1955.pdf|Examinations of George Wythe Swinney for Forgery and Murder]],"<ref>W. Edwin Hemphill, "Examinations of George Wythe Swinney for Forgery and Murder: A Documentary Essay," ''William and Mary Quarterly'' 3rd ser., 12, no. 4 (October 1955), 543-574.</ref> with another by [[wikipedia:Julian P. Boyd|Julian P. Boyd]], "[[Murder of George Wythe]]."<ref>Julian P. Boyd, "[[Media:BoydMurderOfGeorgeWytheOctober1955.pdf|The Murder of George Wythe]]," ''William and Mary Quarterly'' 3rd ser., 12, no. 4 (October 1955), 513-542.</ref> Hemphill had rediscovered witness testimony given for [[Death of George Wythe#Sweeney's Trial|Sweeney's murder trial]] in 1806, and both authors made use of this new information.

Hemphill and Boyd's work was published as a pamphlet reprint the same year, under the title: [https://catalog.swem.wm.edu/law/Record/343766 ''The Murder of George Wythe: Two Essays''] (Williamsburg, VA: [https://oieahc.wm.edu/ Institute of Early American History and Culture,] 1955).

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==Article text, October 1955==
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'''Examinations of George Wythe Swinney<br />for Forgery and Murder: A Documentary Essay'''<br />W. Edwin Hemphill*
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“I SHUDDER when I think of it." Thus wrote [[wikipedia:John Page (Virginia politician)|John Page]] three weeks after the death of [[George Wythe]] in Richmond on June 8, 1806.<sup>1</sup> Less than a year and a half had elapsed since a "numerous concourse" of Jeffersonian Republicans had gathered at the Washington Tavern in the capital on March 4, 1805, to celebrate the second inauguration of [[Thomas Jefferson]] as the President of the United States. On the joyous occasion of the party's victory banquet Governor Page had asked Judge Wythe to retire and had then proposed a volunteer toast to "George Wythe, distinguished alike for his wisdom and integrity as a magistrate, and his zeal and disinterestedness as a patriot." The tavern's hall had resounded with nine cheers—as many as were given in response to any prearranged or spontaneous toast, even that to the President himself.<sup>2</sup> Nine months later Page had retired from the governorship.

As he sat at his writing desk late in June, 1806, amid the peace and security of "Rosewell," his magnificent home in Gloucester County, John Page reflected upon the saddening, disheartening news he had heard during a recent trip to Richmond. [[William DuVal]], George Wythe's nearest neighbor, had told Page how their mutual friend had suffered and had died—and how very suspect certain circumstances preceding that death seemed. But nothing had yet been proved. So the circumspect Page scribbled to another friend an outburst that was more a sermon than a digest of the evidence. "I know only enough" about the "horrid tale," he remarked in his letter to St. George Tucker, one of Wythe's students and the judge who had succeeded Wythe in the chair of law in the College

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* Mr. Hemphill is Managing Editor of ''Virginia Cavalcade'' and a member of the staff of the Virginia State Library. These depositions were discovered by Mr. Hemphill and are now printed for the first time in this issue of the ''Quarterly''.

<sup>1</sup> John Page to [[St. George Tucker]], Jun. 29, 1806, Tucker-Coleman Papers, Colonial Williamsburg.

<sup>2</sup> Richmond ''Enquirer'', Mar. 8, 1805.
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[[File:BoydHemphillMurderOfGeorgeWytheTwoEssays1955.jpg|thumb|right|400px|Title page from Boyd and [[Examinations of George Wythe Swinney for Forgery and Murder|Hemphill's]] pamphlet reprint, [https://catalog.swem.wm.edu/law/Record/343766 ''The Murder of George Wythe: Two Essays''] (Williamsburg, VA: Institute of Early American History and Culture, 1955).]]
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of William and Mary, "to shock my Soul." But the former Governor could not forbear comment along other lines. The murder of Chancellor Wythe, he exclaimed, made him "feel for humanity—and the wounded honor of my Country!"<sup>3</sup>

[[wikipedia:William H. Cabell|Governor William H. Cabell]], Page's successor, was also distressed. He reminded one of his sisters-in-law of their experience when they had visited a Miss Nelson, who had then been living in the modest Richmond home of her uncle, the widowered, scholarly Chancellor. "She and all of us were almost children, and few grown men would have found any interest in staying in the room where we were. But the good old gentleman brought forth his philosophical apparatus and amused us by exhibiting experiments, which we did not well comprehend, it is true, but he tried to make us do so, and we felt elevated by such attentions from so great a man."<sup>4</sup>

The up-and-coming [[wikipedia:William Wirt (Attorney General)|William Wirt]], who had served for a year in a judicial office coordinate with that of the victim,<sup>5</sup> wrote from Norfolk to [[wikipedia:James Monroe|James Monroe]], who was abroad, in indignant terms about the "dose of arsenick administered" to "poor old Chancellor Wythe."<sup>6</sup> Five weeks later Wirt could assure his absent wife, "I dare say you have heard me say that I hoped no one would undertake the defence of [the accused, George Wythe] Swinney, but that he would be left to the fate which he seemed so justly to merit."<sup>7</sup>

The editor of a Richmond newspaper was upset enough to describe his news announcement of the death as a "painful task."<sup>8</sup> An editor in Raleigh, North Carolina, was told "by a gentleman lately from Rich-

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<sup>3</sup> John Page to St. George Tucker, Jun. 29, 1806, Tucker-Coleman Papers.

<sup>4</sup> William H. Cabell to Mrs. William Wirt (undated), quoted in John Pendleton Kennedy, ''[[Life of William Wirt#Page 151|Memoirs of the Life of William Wirt, Attorney General of the United States]]'' (Philadelphia, 1849), I, 151-152. Hereafter cited as Kennedy, ''William Wirt''.

<sup>5</sup> Ambitious for wealth, Wirt found his position as judge of the Superior Court of Chancery for the Eastern District irksome, its salary barely adequate in view of his second marriage, which took place in September, 1802. It "is possible," he observed wryly, "that I may, like Mr. Wythe, grow old in judicial honors and Roman poverty. I may die beloved, reverenced almost to canonization by my country, and my wife and children, as they beg for bread, may have to boast that they were mine." [[Life of William Wirt|William Wirt to Dabney Carr]], Feb. 13, 1803, ''ibid.'', 95. In May, 1803, Wirt returned to the practice of law as an attorney, with his residence and headquarters in Norfolk. ''Ibid.'', 87-101.

<sup>6</sup> William Wirt to James Monroe, Jun. 10, 1806, Monroe Papers, vol. XI, no. 1373, Library of Congress.

<sup>7</sup> William Wirt to Elizabeth Gamble Wirt, Jul. 13, 1806, Kennedy, ''[[Life of William Wirt#Page 152|William Wirt]]'', 1, 152-153.

<sup>8</sup> [[Virginia Argus, 10 June 1806|Richmond ''Virginia Argus'', Jun. 10, 1806]].
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mond" about the crime and was thus enabled to "scoop" the world by publishing the first printed details, albeit inaccurate ones, of the "circumstances of this horrid transaction."<sup>9</sup> Newspapers as far away as Boston recorded its effect.<sup>10</sup> Richmond's press devoted an apparently unprecedented amount of space to the modest, touching, but reserved funeral oration by [[William Munford]]<sup>11</sup> and to laudatory tributes received as anonymous communications to the editors; the total aggregated what seems to have been more column inches of eulogy than had been elicited in Virginia newspapers by the death of George Washington or by that of any other person.<sup>12</sup>

Washington's imaginative, opportunistic biographer, Mason Locke Weems, seized upon news that had "quite galvanized" the "very young and tender hearted" in Charleston, South Carolina, as excuse enough for a discursive essay. That itinerant book-peddler described himself as "getting now to be a little oldish . . . , and daily, as becomes a stranger in Charleston, at this season, looking out for a squall of the same sort." Weems viewed with equanimity the fact that "death, by a touch of his old thresher, with equal ease, brings down a Chancellor or a cherry." He professed no grief over the death of the Virginian he portrayed as "[[Honest Lawyer|The Honest Lawyer]]." On the contrary, the effusive "Parson" enjoined joy "that this veteran of the law, after a life of glorious toil, to revive the golden age of justice on earth, was returned to the high courts of heaven-not

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<sup>9</sup> Raleigh, N. C., ''Minerva'', Jun. 16, 1806.

<sup>10</sup> Boston, Mass., ''Gazette'', Jun. 19, 1806, and ''Columbian Centinel'', Jun. 21, 1806.

<sup>11</sup> After the death of Wythe's second wife in 1787, William Munford (1775-1825) had lived in Wythe's home in Williamsburg and had been a special object of Wythe's generous attentions to youth. Grateful, Munford named his oldest child George Wythe Munford "after my old friend and benefactor the Chancellor." William Munford to his sister-in-law, Mrs. Mary R. Preston, Jan. 10, 1803, Munford- Ellis Papers, Duke University Library. Munford, his heart "torn with sorrow," then accepted the Council of State's assignment to preach the funeral oration, partly because "the ties of gratitude to that best of men, for the extraordinary kindness he ever manifested towards me, ought to prohibit my suffering him to go to his grave without an Eulogy." William Munford to Governor William H. Cabell, Jun. 8, 1806, Executive Papers, Virginia State Library. The funeral oration by Munford was printed in its entirety by two Richmond newspapers: Richmond ''Enquirer'', Jun. 13 and 17, 1806; Richmond ''Virginia Argus'', Jun. 17, 1806.

<sup>12</sup> See issues of the ''Enquirer'', the ''Impartial Observer'', the ''Virginia Argus'', and the ''Virginia Gazette, & General Advertiser'' during the first three or four weeks after Jun. 8, 1806. The author's comparison is based upon impressions rather than upon actual counts of the space allotted by Richmond editors to obituaries, eulogies, etc., for Wythe and for such other distinguished citizens as George Washington, who had died in 1799, and Edmund Pendleton, who had died in 1803.
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pale and trembling . . . , wet with widows' tears, and blood of murdered patriots, to meet the tear-avenging God; but bright in conscious integrity, with hands pure as the sweet palms which press the alabaster bottles of life, and in robes of innocence, snow-white as those that angels wear, to meet the smiles of the Judge Supreme, and the acclamations of brother saints innumerable."'<sup>13</sup>

Celebrants of the Fourth of July in 1806 drank toasts to the memory of George Wythe.<sup>14</sup> Restricted to severe brevity by that social form of tribute, those who gathered for the Fourth at Lexington, Kentucky, remembered Wythe simply as "a faithful labourer in the vineyard of the republic."<sup>15</sup> There the orator of the day was Henry Clay, who until his own death remained proud of the fact that he had been associated with Wythe's court during the 1790's. Indeed, young Clay had been the amanuensis who transcribed for publication the Chancellor's annotated decisions, confusingly peppered though they were with Greek phrases Clay had been able neither to understand nor to write well.<sup>16</sup> Saddened by the news that had plunged Richmond into mourning (news that had just reached Lexington), Clay made his address "short and impressive."<sup>17</sup>

The sense of revulsion felt throughout the country crossed party lines as well as state lines. A Federalist organ in the nation's largest city copied from the Richmond ''Enquirer'' two paragraphs of Republican editor Thomas Ritchie's shocked obituary. To those paragraphs it appended the Petersburg, Virginia, ''Republican's'' pointed comment: "It is generally believed, that this patriot, has been brought to the grave, by means, the 'most foul, base and unnatural,' and that the accused is to undergo an examination."<sup>18</sup> Even a modern interpreter of the Old Dominion cites the felony as the worst example of the cussedness—or something worse—

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<sup>13</sup> M. L. Weems, "[[Honest Lawyer|The Honest Lawyer: An Anecdote]]," Charleston, S. C., ''Times'', Jul. 1, 1806.

<sup>14</sup> [[Richmond Enquirer, 8 July 1806|Richmond ''Enquirer'', Jul. 8, 1806]].

<sup>15</sup> Lexington ''Kentucky Gazette'', Jul. 5, 1806.

<sup>16</sup> Henry Clay to B. B. Minor, May 3, 1851, printed in Benjamin Blake Minor, '[[Memoir of the Author]]," in George Wythe, ''Decisions of Cases in Virginia, by the High Court of Chancery, with Remarks upon Decrees, by the Court of Appeals, Reversing Some of Those Decisions'' (2d ed., B. B. Minor, ed., xxxii-xxxvi. Richmond, 1852), Hereafter cited as Wythe, ''Decisions''.

<sup>17</sup> Bernard Mayo, ''Henry Clay, Spokesman of the New West'' (Boston, 1937), 208-209.

<sup>18</sup> Philadelphia, Pa., ''Poulson's American Daily Advertiser'', Jun. 17, 1806. This newspaper attributed the remark to the Petersburg ''Republican'' of an unspecified date.
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that she attributes to Virginians.<sup>19</sup> The murder of George Wythe took at the time top or high rank among the state's most heinous crimes. It still does.

Inevitably, the revolting affair created quite a stir, for people ''will'' talk. Throughout the week before the prostrated Wythe's last breath set the bells of Richmond a-tolling, his death was a foregone conclusion. People marveled that a man of his age could so long survive the excruciating agonies of so insidious and lethal a poison. While Wythe still suffered, strong suspicion was aroused. Circumstances and tangible evidence converted suspicion into conviction at least seven days before the poison produced its ultimate effect upon the Chancellor's strong constitution.

The suspect was as undoubted as was the conclusion that Wythe was a victim of premeditated murder by means of arsenic. Invariably the slayer was identified as the venerable patriot's teen-aged grandnephew and namesake, George Wythe Swinney, an ingrate who had already proved himself unworthy of the home and education he had enjoyed for several years under the hip roof of the Chancellor's unpretentious cottage. Had not that young reprobate stolen books and money from his too-trusting benefactor? Had he not forged checks against his patron's bank account? And had it not been generally known, doubtless by Swinney himself, that he was the chief heir to Wythe's estate, a modest one but doubtless large enough to provide some relief to a culprit in financial difficulties? So, people said, he had placed his fatal dose in the breakfast coffee served in the unsuspecting household on Sunday morning, May 25. Immediately after that meal the good old judge and two freed Negroes had become critically ill. Lydia Broadnax, the Chancellor's faithful cook and servant, recovered. Michael Brown, the mulatto lad to whom Wythe had personally been giving a classical education—Greek and all—as a practical experiment in testing and developing the intelligence of Virginia's other race, had died on the next Sunday, June 1. The Chancellor himself lived in torment—and perhaps toward the end in a merciful coma—through a second week, but he died on the second Sunday morning, June 8. Fortunately, however, he did not expire before he had altered his will to disinherit the villainous Swinney.

Such is the traditional account of the death of Wythe—a paraphrase expanded to greater length than any known to have been written within the next two weeks, doubtless shorter than many conversational versions

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<sup>19</sup> Virginia Moore, ''Virginia Is a State of Mind'' (New York, 1943), 190-191.
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of the time, and certainly embodying the contemporary explanations of the timing, the method, and the motive of the murderer of Michael Brown and George Wythe.<sup>20</sup> This story of the baneful circumstances has persisted ever since 1806. In its retellings it has undergone normal embellishments and amendments. Developments not fully understood when they occurred gave the tale a poor foundation at the start. The recollections of its original narrators grew more and more subject to error with the passing years. Family traditions, transmitted orally, added details and supplied conversations that seem more logical than they are trustworthy. Fanciful emphases and interpretations have been born of assumptions, not of research.

The only substantial modification, however, has been a pronounced tendency to portray the poisoning of Wythe as an accident, while that of Michael Brown has remained the result of intentional murder. This alteration cannot be traced backward beyond 1850. It stems from two sources that were not independent of each other. One was the quite faulty memory of Dr. John Dove of Richmond, who claimed in 1856 that he had been "[[Memoranda Concerning the Death of Chancellor Wythe|present during the sickness & death of Judge Wythe]]." Dove alleged that the Chancellor had been ill before May 25, 1806, and that Swinney had not expected him to eat breakfast that Sunday morning where the poisoned coffee was to be served. The other source was Benjamin Blake Minor, editor of the ''Southern Literary Messenger'', who contributed a biographical sketch to the second edition of the Chancellor's ''Decisions'' (1852). Minor talked with Dr. Dove, who undoubtedly told him something to the effect that Swinney had "vowed vengeance" only against the mulatto boy; and

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<sup>20</sup> Evidently the earliest summaries of the circumstances now extant are in the reliable letters written by William DuVal to Thomas Jefferson on [[Jefferson-DuVal Correspondence#William DuVal to Thomas Jefferson.2C 4 June 1806|Jun. 4 and 8]], preserved in the Jefferson Papers, Library of Congress. Neither attributes to the poisonings a plain method or motive. The earliest written statement as to motivation and method is apparently to be found in the letter of Jun. 10, 1806, from William Wirt in Norfolk to James Monroe, Monroe Papers, vol. XI, no. 1373. That letter was written before Wirt had learned of Wythe's death. Internal evidence in Wirt's letter indicates that the allegations it relayed were based exclusively on information written on Jun. 5, in a letter that has not been found, by Governor William H. Cabell, his brother-in-law. A later account is in the brief, less specific recollection recorded by Littleton Waller Tazewell, who wrote that "it was generally believed" that Wythe's death "was produced by poison, administered in his coffee, by a reprobate boy, a relation of his who he had undertaken to educate, and who was afterwards convicted of having committed many forgeries of checks in his patrons name." "Sketches of his own family, written by Littleton Waller Tazewell, for the use of his children. Norfolk. Virginia. 1823" (MS. in the Virginia State Library), 121.
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Minor found what seemed to him to be sufficient substantiation in Wythe's will and two of its codicils, which made Swinney the residuary legatee of bequests to Michael Brown.<sup>21</sup> Until now the only serious analysis of the traditional account of Wythe's death and of the Dove-Minor misinterpretation has been that of Julian P. Boyd. His lucidly reasoned booklet on ''[[Murder of George Wythe|The Murder of George Wythe]]'' assayed them chiefly by the test of comparison with information found in seven previously unexploited letters written in 1806 to President Jefferson by Wythe's intimate friend and executor, William DuVal.<sup>22</sup>

But other and even better contemporary records are also extant, and it is good that the ''William and Mary Quarterly'' affords space in this issue both for them and Dr. Boyd's thoughtful interpretation, now relatively unavailable. Chief among these additional documents are official court records of the preliminary trials of George Wythe Swinney for forgery and murder. Like pirates' gold buried in a forgotten pit, they lay neglected through more than a century and a quarter despite recurrent curiosity about Wythe's tragic death. These legal records, discovered by the present writer a number of years ago and now published for the first time, contain precious nuggets of authentic information. They include digests of the sworn testimony of sixteen witnesses for the prosecution against Swinney. They add up to a convincing indictment of him. The discovery was made in the office of the Clerk of the Hustings Court of the City of Richmond,<sup>23</sup> where the documents lay within the

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<sup>21</sup> Both of the phrases quoted above are from Dr. Dove's recorded recollections, which are replete with provable errors and must be considered wholly suspect. "[[Memoranda Concerning the Death of Chancellor Wythe|Memoranda concerning the death of Chancellor Wythe]]—Signed in the Aut[o]-g[rap]h. of T[homas]. H. Wynne and rec'd by him from Dr. John Dove, Sept. 16, 1856," MS. in the Brock Collection, Henry E. Huntington Library and Art Gallery. Hereafter cited as Dove, "Memoranda." For evidence that John Dove, M.D., was a Richmond practitioner from about 1822 to about 1852, see Wyndham B. Blanton, ''Medicine in Virginia in the Nineteenth Century'' (Richmond, 1933), 48, 76, 91, 238, 240. For evidence that Dove influenced Minor directly, see Minor, "[[Memoir of the Author]]," in Wythe, ''Decisions'', xxvii.

<sup>22</sup> Julian P. Boyd, ''[[Murder of George Wythe|The Murder of George Wythe]]'' (Philadelphia, 1949).

<sup>23</sup> Binder's title "[[Hustings Court Order Book|Order Book No. 6, 1804-1806]]," 464-465, 482-488. Rough drafts of the records for these two cases of the Commonwealth v. Swinney—drafts identical to the final ones in every important respect—can be found in the same office in the volume given the binder's title of "[[Hustings Court Minutes|Minutes No. 3, 1802-1806]]" (MS. with pages not numbered) under dates of Jun. 2 and 23, 1806, respectively. Microfilm copies of both the Minute Book and the Order Book are available in the Virginia State Library. The final drafts of the two documents have been transcribed from the Order Book for publication below.
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domain of the very court to which the laws of Virginia prevailing in 1806 required that such an offender in Richmond as Swinney should be brought first for any trial of which an official record would have been kept. When Richmond had been incorporated in 1782, it was made a unit of local government. The General Assembly had provided by law for the annual election of twelve citizens to serve in their spare time as municipal officials. Half of them were to constitute a legislative Common Council. The remaining six—a mayor, a recorder, and four aldermen—were commanded "to hold a court of hustings" each month. Its jurisdiction in Richmond corresponded to that of a county court within county boundaries. Each of the judges of the Hustings Court had been vested with the powers of a justice of the peace, and they had been specifically assigned the duty "of examining criminals for all offences committed within the limits of the said corporation." If they found a defendant guilty of a serious crime, they were to refer him to a higher court for trial before professional judges and a jury.<sup>24</sup> These governmental and legal arrangements for the preservation of law and order had been modified only slightly in later statutes, but a law of 1803 had increased the membership of the Common Council to fifteen and that of the Hustings Court to nine, doubtless in recognition of Richmond's growth to a population of more than five thousand.<sup>25</sup> We shall find that not all of our questions are answered by these documents, but no searcher for the treasure-trove could reasonably have expected it to be so rich. Yet it multiplies by many times the amount of contemporary data at our disposal. It enables us to confirm some details reported unofficially at the time and to correct others. It supplies us with vivid portraits of a gloomy, wicked, and yet remorseful youth; of the last days of a questioning, then convinced, and ultimately forgiving victim; of the anxious solicitude and growing outrage of the latter's friends; and of their transition from innocent acceptance of his serious illness as a natural thing to mounting suspicion, relatively thorough investigation, and distressing proof of the poisoner's guilt. Coupled with our greater knowledge of toxicology and with other contemporary records not utilized

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<sup>24</sup> William Waller Hening, compiler, ''The Statutes at Large ... of Virginia . . .'' (Richmond, Philadelphia, New York, 1819-1823,) XI (Richmond, 1823), 45-51. Hereafter cited as Hening, ''Statutes''.

<sup>25</sup> ''Ibid.'', XII (Richmond, 1823), 407-408; Samuel Shepherd, compiler, ''The Statutes at Large of Virginia,. . . 1792, to . . . 1806 . . .'' (Richmond, 1835-1836), II, 93, 422-425, III, 73-75. Hereafter cited as Shepherd, ''Statutes''.
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by previous investigators, it affords us a surer understanding of the grim story of the unpunished forgeries and murders committed by George Wythe Swinney than was vouchsafed to any of the people who mourned the death of Chancellor Wythe and sought with decreasing fervor to do justice to the cause of it—a more reliable understanding, indeed, than any of our predecessors attained.

The official record of the examination of Swinney for alleged forgery reads as follows:

At a Court of Hustings called and held for the City of Richmond at the Courthouse, on Monday, the second day of June 1806, for the examination of George W. Swinney,<sup>26</sup> who stands accused of forgery.<sup>27</sup>

Present

Edward Carrington, Gentleman, Mayor,

Samuel Pleasants, Gentleman, Recorder,

Henry S. Shore, William Goodwin, Anderson Barret,

David Lambert and William Richardson, Gentlemen, Aldermen.

The prisoner was led to the bar in custody of the Sergeant of this City; whereupon sundry witnesses were sworn and examined, and the prisoner in his defence fully heard: On consideration whereof, the Court is of opinion that the prisoner is guilty of the offence aforesaid, and doth order that he undergo a trial therefor at the next District Court directed by law to be holden at the Capitol in this City: and it is further ordered that the said George W. Swinney be bound in a recognizance in the penalty of one thousand dollars, with suf-

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<sup>26</sup> George Wythe Swinney, whose surname occurs in contemporary records also in the form of various spellings of Sweeney, was a grandson of George Wythe's sister and hence a grandnephew of Wythe. For genealogical information concerning him and related Sweeneys see W. Edwin Hemphill, George Wythe the Colonial Briton: A Biographical Study of the Pre-Revolutionary Era (Doctoral Dissertation, University of Virginia, 1937), 40.

<sup>27</sup> Swinney had doubtless been accused of forgery as the result of a preliminary hearing before one or more of the municipal magistrates or justices of the peace, presumably within the last five days of the preceding week, May 27-31, as is indicated by the testimony of the first witness below. William Wirt enumerated a few other manifestations of dishonesty on Swinney's part that had been preludes to his climactic crime: "The young villain (only about 16 or 17) had been in the habit of robbing his uncle [i.e., his granduncle, George Wythe] with a false-key, had sold three trunks of his most valuable law-books, had forged his checks on the bank to a considerable amount, & wound up his villainies by this act [of murder]." William Wirt to James Monroe, Jun. 10, 1806, Monroe Papers, vol. XI, no. 1373.
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ficient security in a like penalty, for his personal appearance before the Judges of the said district Court, on the first day of the next term thereof, to answer the Commonwealth of the offence aforesaid; and failing to give the security required, he is remanded to jail until he shall give such security, or shall be otherwise discharged by the course of law.

William Dandridge (Teller of the Bank of Virginia) a witness on the foregoing examination, being sworn, deposeth and saith: That on Tuesday last [May 27], the prisoner produced to him at the bank of Virginia, a check thereon for the sum of one hundred dollars, drawn in the name of George Wythe esquire, which the deponent paid. That some time after, on examining the check, he suspected it to be a forged one, and he thereupon went to the prisoner and stated that he believed there was a mistake in said check; That the prisoner immediately produced the money and delivered the same to the deponent. That the prisoner frequently presented checks at the bank in the name of the said George Wythe; and the deponent verily believes that six checks now produced in Court were presented by the prisoner, and are all counterfeited.

Peter Tinsley,<sup>28</sup> another witness sworn on the said examination deposeth and saith: That he carried to George Wythe esquire seven checks drawn in his name on the bank of Virginia, who denied having drawn or signed more than one of them.

William Dandridge and Peter Tinsley here in Court acknowledge themselves indebted to his Excellency William H. Cabell governor or chief magistrate of the Commonwealth of Virginia, in the sum of one hundred pounds each, of their respective goods and chattels, lands and tenements, to be levied, and to the said governor and his successors, for the use of the said Common-wealth rendered: Yet upon this Condition, that if the said William Dandridge and Peter Tinsley shall severally make their personal appearance before the Judges of the District Court directed by law to be holden at the Capitol in this City, on the first day of the next term thereof, to give evidence on behalf of the Commonwealth against George W. Swinney, who stands accused of forgery, and shall not depart thence without the leave of the said Court, then this recognizance is to be void.<center>
(Minutes signed) E: Carrington Mayor<sup>29</sup>
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<sup>28</sup> Tinsley was for many years Clerk of the High Court of Chancery.

<sup>29</sup> One item of corrective evidence is brought out in this record. Unofficial reports of 1806, whenever they stated or implied a chronology for Swinney's crimes, invariably indicated that his forgeries and the discovery of them preceded his poisoning of Judge Wythe. On the contrary, Dandridge testified that Swinney was sus-
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The official record of the examination of Swinney on the charge of murder is a remarkably detailed one. Its unusual length doubtless reflects a common impression of the uncommon nature and circumstances of the alleged crime. The record reveals utter desperation on the part of an al-most deranged Swinney. It portrays the mounting growth of suspicion during illnesses that might have been provoked by merely natural causes. It embodies observations that link Swinney conclusively with ratsbane (white arsenic) and yellow arsenic. It records medical symptoms and measures that are not nice but seem necessary. And it indicates reserve on the part of three physicians when they gave under oath their professional judgments whether or not the death of George Wythe could be attributed to arsenic poisoning. This record is as follows:

At a Court of Hustings called and held for the City of Richmond at the Courthouse, on Monday, the 23d. day of June 1806, for the examination of George W. Swinney, who stands accused of murder.<sup>30</sup>
Present

The Same Justices as above.<sup>31</sup>

The prisoner was led to the bar in custody of the Sergeant of this City; where-upon sundry witnesses were sworn and examined, and the prisoner in his

<div style="font-size: 85%;">
pected for the first time of his forgeries after he had presented a sixth forged check at the bank on Tuesday, May 27. That Tuesday will be found to have been two or three days after Swinney had poisoned Wythe. On that Tuesday the Chancellor lay abed in the early stages of his mortal illness. That is one reason—and his charitable, compassionate nature may be another—for the fact that Wythe himself did not testify in court which of the seven checks "carried" to him by Tinsley he had not signed personally. Further details about the six forgeries will be revealed later in this article.

<sup>30</sup> The accusation against Swinney for the alleged murders of "Wythe & Michael Brown the Freed Boy" had resulted, in keeping with Virginia law, from a hearing held on Jun. 18 before Mayor Edward Carrington and two other magistrates or aldermen. On that occasion the examination of witnesses "lasted near Five Hours." The mayor and his two colleagues "were of Opinion that they, Mr. Wythe & Michael, were poisoned by Geo. W Sweeney." The suspect was ordered to be held in jail to await trial by the Hustings Court as a "Court of Examination" on Jun. 23. William DuVal to Thomas Jefferson, [[Jefferson-DuVal Correspondence#William DuVal to Thomas Jefferson.2C 19 June 1806|Jun. 19, 1806]], Jefferson Papers. Cf. Shepherd, ''Statutes'', III, 73-75.

<sup>31</sup> That is to say, the same six who had been present for the trials of earlier cases on Jun. 23: Mayor Edward Carrington, Recorder Samuel Pleasants, Jr., and Aldermen Henry S. Shore, Anderson Barret, David Lambert, and William Richardson. Aldermen William DuVal, William Goodwin, and Thomas Underwood did not sit as judges for this examination. DuVal attended as a witness.
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===Page 554===

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defence fully heard: On consideration whereof, the Court is of opinion that the prisoner is guilty of the offence aforesaid, and doth order that he undergo a trial therefor before the next District Court directed by law to be holden at the Capitol in this City: and thereupon the said George W. Swinney is remanded to jail.<sup>32</sup>

Tarlton Webb,<sup>33</sup> a witness for the Commonwealth on this examination, being sworn, deposeth and saith: That about a fortnight or three weeks be-fore the prisoner was committed to jail, he enquired of the deponent where he could procure any ratsbane? The deponent replied that it was against the law of the United States to have it. The day before the prisoner was apprehended,<sup>34</sup> he came to the house of the deponent's mother, and shewed the depon[en]t something wrapped in paper, which he said was Ratsbane, and in-formed the deponent that he intended to kill himself, and offered to give the deponent some if he wanted to die. The deponent being shown some drugs found in the jail and produced in Court by Mr. [William] Rose,<sup>35</sup> deposes that what the prisoner showed him was like that in Mr. Rose's possession, and that there was about one table spoonful. The prisoner stated to the deponent that he was very unhappy and something pressed upon his mind; but though applied to, would not disclose the cause of his uneasiness to the deponent.

William Rose,<sup>36</sup> another witness sworn on this examination, deposeth and

<div style="font-size: 85%;">
<sup>32</sup> The [[Virginia, June General Court, 1806|Richmond ''Enquirer'', Jun. 24, 1806]], printed the following announcement of the decision: "George W. Swinney was yesterday called before the examining court of this city, on the charge of poisoning his great Uncle, the venerable George Wythe, and a servant boy. He was unanimously remanded to jail for further trial before the district court to be had in September next." Although it was not particularly customary for crime news, especially courtroom news of this tentative sort, to be widely reprinted, this item reappeared in such representative newspapers as the Richmond [[Virginia Argus, 25 June 1806|''Virginia Argus'', Jun. 25, 1806]]; the Alexandria ''Virginia Gazette, & General Advertiser'', Jun. 25, 1806; the Washington, D. C., ''National Intelligencer, and Washington Advertiser'', Jun. 30, 1806, and ''Universal Gazette'', Jul. 3, 1806; the Augusta, Ga., ''Chronicle'', Jul. 12, 1806; and the Savannah, Ga., ''Columbian Museum & Savannah Advertiser'', Jul. 12, 1806, and ''Georgia Republican'', Jul. 15, 1806.

<sup>33</sup> This witness has not been identified positively. His testimony suggests that he was probably a youthful friend of Swinney.

<sup>34</sup> Swinney was arrested on Wednesday, May 28, or Thursday, May 29, according to testimony given in this examination by witness William DuVal, reproduced below. Webb's testimony here to the effect that Swinney told him on May 27 or May 28 that "something pressed upon his [Swinney's] mind" can be, therefore, a veiled reference by Swinney himself to worry and remorse because of the way he had used poison, with results that had not yet proved fatal, and possibly also because of the forgery committed and detected on Tuesday, May 27.

<sup>35</sup> For an identification of William Rose see the next paragraph and footnote 36.

<sup>36</sup> Rose was the public jailor of Richmond. Richmond ''Enquirer'', Jul. 8, 1817. Rose's
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===Page 555===

<blockquote>
saith: That his servant girl Pleasant, went into the garden about twelve o'clock the day after the prisoner was committed to jail and brought the paper this day produced [in court], the contents of which the deponent immediately knew to be arsenic. When the prisoner was committed to jail, the deponent did not search him; but about an hour and a half after, or thereabouts, hearing that it was probable he had pistols, he went into the jail and felt his pocket, and felt that there was a heavy substance wrapped in paper; but supposing that it might be coppers, or some few eighteen penny pieces, he did not take it out of his pocket. The prisoner had the use of the debtors room and the jail yard at his option. As soon [as] the arsenic was found the deponent suspected that Mr. Wythe was poisoned.

Samuel McCraw,<sup>37</sup> another witness sworn on the said examination, deposeth and saith; That being informed by Mr. Rose, that arsenic had been found in his garden, he proposed to have the servant carried into the garden to see the place where [the arsenic had been] found, to ascertain whether it was deposited there, or thrown from the jail yard. That at the place where the servant stated the arsenic to have been found, the deponent found two papers lying about eighteen inches apart: That the crude arsenic had penetrated a little into the earth, and there were two plants one a fennel, the other a beat [''sic''], broken off as he supposed by the throwing the arsenic over the jail wall: The deponent thinks it must have come from the jail yard. The beat [''sic''] that was wounded was next [i.e., nearer] the jail wall and was wounded considerably farther from the ground than the fennel. On the first of June, one week after Mr. Wythe's attack [began], the deponent was re-quested to go to attest [the final codicil to] Mr. Wythe's will. Mr. Wythe re-quested the prisoner's room and trunk to be searched. The deponent, with others, was conducted to the room where the prisoner lodged, opened the chest and found a port folio with a quire of blotting paper, which the deponent believes to be of the same kind with what was found wrapped round the arsenic found in the garden. In the prisoner's room on a writing table, the deponent found a paper on which were a half a dozen strawberries with the appearance of arsenic having been sprinkled over them. He found a phial with an appearance of having had a liquid, some of which adhered to the side of the phial, and on examination was believed to have been a mixture of testimony and that of the next witness make it plain that the former's residence and garden adjoined the jail.

<div style="font-size: 85%;">
testimony and that of the next witness make it plain that the former's residence and garden adjoined the jail.

<sup>37</sup> McCraw was one of the four witnesses who signed the final codicil to Wythe's will. Minor, "[[Memoir of the Author]]," in Wythe, ''Decisions'', xxxviii-xxxix.
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===Page 556===

<blockquote>
arsenic and sulphur. He also found two pieces of coarse brown paper, with something adhering to each, which was also declared to be arsenic and sulphur. The deponent frequently visited Mr. Wythe in his last illness and he appeared to be in very great agony from the first time to his death. Some time before the death of Mr. Wythe, while this deponent was sitting by him, Mr. Wythe exclaimed, cut me—the deponent supposed he wanted to have his flannel cut loose which the deponent accordingly did, but which gave apparent displeasure to Mr. Wythe, who then putting his hand to his throat and heart again called out, cut me, but could make no further explanation: this induced a belief in the deponent and those present that it was his wish to be opened after his death. The deponent never did hear Mr. Wythe express any suspicion of having been poisoned.

Fleming Russell<sup>38</sup> another witness sworn on the said examination deposeth and saith; That the day he received the warrant [for the arrest of Swinney] he went to Mr. Wythe's and found the prisoner: when he showed the prisoner the warrant and carried him to Major DuVal's & discovered he had no pistols, took his knife from him, and put his hand in his coat pocket, he felt very distinctly that he had two separate parcels of something wraped up in paper in his pocket but made no further search. After the prisoner was committed to jail, the deponent informed Mr. Rose, that the prisoner had some-thing else in his coat pocket and advised him to make a search, but did not go with Mr. Rose to make it.

Taylor Williams<sup>39</sup> a witness sworn on the said examination deposeth and saith; That about three weeks before the prisoner was apprehended, he mentioned something to the deponent about poison. The deponent informed him that copperas [i.e., crystallized ferrous sulphate] and water was poison. In about six or seven days after, the prisoner began a conversation with the deponent about poison: the deponent then told him ratsbane was poison, and that a gentleman of his acquaintance used it for the purpose of killing rats, and that [it] was to be bought in the shops, but does not recollect with certainty whether the prisoner asked him where it might be had.

Major William DuVal<sup>40</sup> another witness sworn on said examination de-

<div style="font-size: 85%;">
<sup>38</sup> This witness has not been identified. Judging from his testimony, he must have been a Richmond police officer.

<sup>39</sup> Williams appears from his testimony to have been a young friend of Swinney.

<sup>40</sup> William DuVal was of Huguenot descent, an officer during the Revolutionary War, an attorney, a member of the Virginia General Assembly, a magistrate of Richmond who had served as mayor during 1805-1806, and an intimate friend of Wythe, whose residence was also located in the square bounded by Grace, Sixth, Franklin,
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===Page 557===

<blockquote>
poseth and saith; that on the 25th day of May, he went to see Mr. Wythe, without knowing he was sick, and found him very ill[,] extended on his back. Mr. Wythe said he had not caught cold, that he was as well as usual in the morning, & eat his brea[k]fast as usual; but was immediately taken extremely ill, confined on his back except when forced up, which was upwards of forty times, and had fifteen large evacuations. After the prisoner was committed for the forgery he applied to the deponent by letter to be bailed. Mr. Wythe would have nothing to do with bailing [Swinney]. Mr. Wythe said he was taken ill on the twenty fifth day of May, about nine o'clock after having eat his break-fast; that on wednesday or thursday after, the prisoner was apprehended. Mr. Wythe requested that the prisoner's room and trunk might be searched, which request he repeated frequently, and finally on the first of June prevailed on Mr. McCraw and some other gentlemen who searched the room and trunk and found some papers with something adhereing to them which was declared by Doctor Greenhow<sup>41</sup> to be arsenic. The deponent saw the appearance of arsenic in an out house of Mr. Wythe's, in his yard, used as a shop; and [de-poseth] that some was also found in an old smoak house on a wheel barrow; which on being tried with a pin was proved to be arsenic. On thursday before Mr. Wythe's death he made an ejaculation and declared he was murdered in a low tone of voice. It was generally believed that Mr. Wythe had left the prisoner a great portion of his estate, and known that he had made some pro-vision for the mulatto boy, [Michael] Brown.

Samuel Greenhow<sup>42</sup> another witness sworn on said examination gave the same evidence upon the search of the prisoners room and trunk with McCraw.
and Fifth Streets. DuVal died in Buckingham County in 1842 at the age of 93. W. Asbury Christian, ''Richmond: Her Past and Present'' (Richmond, 1912), 57, 545; Richmond ''Enquirer'', Jan. 13, 1842, and May 13, 1842.

<div style="font-size: 85%;">
<sup>41</sup> The Greenhow to whom DuVal referred may have been the next witness, identified in footnote 42, who is known to have participated in the search of Swinney's room but is not known to have had any claim to the title of Doctor. Conceivably, on the other hand, this Doctor Greenhow may have been the Doctor James G. Greenhow who was living in Richmond in 1815. Blanton, ''Medicine in Virginia in the Nineteenth Century'', 246, 445, citing the Richmond ''Virginia Argus'', Mar. 1, 1815.

<sup>42</sup> Samuel Greenhow issued, as "Principal Agent," a call for the annual meeting in 1809 of the Mutual Assurance Society, the well-known, pioneer Virginia fire insurance company. Richmond ''Enquirer'', Dec. 24, 1808. With men like the Reverend John D. Blair, the Reverend John Buchanan, the Reverend John Holt Rice, and William Munford, Samuel Greenhow was a charter member of the Board of Managers of the Virginia Bible Society, which was organized in Jul., 1813. Christian, ''Richmond'', 87. Greenhow was one of the four witnesses who signed the final codicil to Wythe's will. Minor, "[[Memoir of the Author]]" in Wythe, ''Decisions'', xxxviii-xxxix.
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===Page 558===

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William Price<sup>43</sup> another witness sworn on said examination, gave the same evidence as McCraw and Greenhow on the subject of the search of the prisoner's room, and [substantiated the testimony] of McCraw on the subject of Mr. Wythe’s request to be cut. Mr. McCraw mentioned at that time that he supposed Mr. Wythe wanted to be cut open. Mr. Wythe appeared to be in great agony during his illness, and more particularly when moved.

Nelson Abbott<sup>44</sup> another witness sworn on said examination, deposeth and saith, that on saturday the 24th day of May last, he put an axe, now produced [in court], into a shop in Mr. Wythe’s yard, which he [Wythe] had lent him [Abbott] for a work shop; that on the 27th he went to Hanover and returned on friday the 30th when he discovered the arsenic in its present situation, and a hammer much stained with yellow, which has since been cleaned. The negroes in the shop said the prisoner had beat something they did not know what on the side of the ax with the hammer.

William Claiborne<sup>45</sup> another witness sworn on the said examination deposeth and saith: That he went to Mr. Wythe's the wednesday after his illness [began], who informed him that the Sunday preceding in the morning, he was as well as usual, immediately after breakfast he was taken with a colarimorbus [cholera morbus] and then a violent lax, went forty times that day, and had at least fifteen large evacuations: That on Saturday night he supped [i.e., on Saturday night, May 24, Wythe had supped] on milk and strawberries. Mr. Wythe said all the negroes [of his household] were taken [sick] at the same time. The deponent went into the kitchen and found most of them very ill. He then went to Major DuVal's, and expressed his opinion that the family were poisoned; and suspected the prisoner in consequence of his having been detected [on the previous day, May 27] in the forgery, as the death of Mr. Wythe before the detection could only prevent an alteration in his will which the deponent believed was much in favor of the prisoner. The deponent frequently told the prisoner that he would be well provided for by Mr. Wythe if he behaved well. After the death of the yellow boy [Michael Brown], the deponent was told by some of the negroes that arsenic was found in the outhouses. The deponent took some off the wheelbarrow in the old smoke house, applied fire to it and found from the smell that it was arsenic. The deponent asked Mr. Wythe whether the prisoner break-

<div style="font-size: 85%;">
<sup>43</sup> William Price was another of the witnesses to the final codicil to Wythe's will. Minor, "[[Memoir of the Author]]," in Wythe, ''Decisions'', xxxviii-xxxix.

<sup>44</sup> No information to identify this witness has been discovered.

<sup>45</sup> William Claiborne was the father of W. C. C. Claiborne, Governor of the Territory of Orleans. Richmond ''Enquirer'', Oct. 3, 1809.
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===Page 559===

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fasted with him the morning before he [Wythe] was taken [sick]. At first he did not answer. Afterwards he said he did not know, he [Swinney] was always called to his breakfast, but sometimes took no thing to eat or drink. Mr. Wythe observed he died in peace with all the world, and said he should leave directions for his executor to search the prisoner's trunk. This took place after the death of the boy Michael [on Sunday morning, June <sup>46</sup>], about sunset on the first of June.

[[wikipedia:Edmund Randolph|Edmund Randolph]],<sup>47</sup> being also sworn, deposeth and saith: That on Sunday the first of June about nine o'clock [A.M.], Major DuVal informed the deponent of the death of Michael from poison and [reported] Mr. Wythe as probably dying with the same. Mr. Wythe told the deponent he had supped on strawberries and milk the Saturday before he was taken ill. He wished his will to be altered so as to give to the prisoner's brothers and sisters what he had given him. The deponent made the alteration and then returned home, and afterwards went again to Mr. Wythe and informed him of the death of Michael Brown. The former codicil to the will was then destroyed and the present one made. On Wednesday the fourth of June, the deponent was in-formed by old Lydia [Broadnax] that more marks of poison had been discovered. The deponent went into the shop and saw Abbot's ax. The negro<sup>48</sup>

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<sup>46</sup> George Wythe said in the final codicil to his will, dated Jun. 1, 1806, that he had been told that Michael Brown had died that morning. Minor, "[[Memoir of the Author]]," in Wythe, ''Decisions'', xxxviii-xxxix. An almost contemporary letter also refers to Brown's death on Sunday morning, Jun. 1. William DuVal to Thomas Jefferson, [[Jefferson-DuVal Correspondence#William DuVal to Thomas Jefferson.2C 4 June 1806|Jun. 4, 1806]], Jefferson Papers.

<sup>47</sup> Edmund Randolph, the first Attorney General both of the Commonwealth of Virginia and of the United States, wrote and witnessed the final codicil to Wythe's will. See his testimony here given and Minor, "[[Memoir of the Author]]," in Wythe, ''Decisions'', xxxviii-xxxix. Randolph's career had overlapped Wythe's through the past thirty years—for example, in the Virginia conventions of 1776 and 1788. The first of the two codicils mentioned by Randolph in his testimony evidently devised to George Wythe Swinney's brothers and sisters only what Wythe had formerly bequeathed to Swinney. The second of the two codicils mentioned by Randolph devised to George Wythe Swinney's brothers and sisters everything that Wythe had formerly bequeathed both to Swinney and to Michael Brown. The will and its codicils dated Jan. 19 and Feb. 24, 1806, were proved in the General Court of Virginia on Jun. ii, 1806, by the oaths of Edmund Randolph and Peter Tinsley; and the final codicil, dated Jun. 1, 1806, was proved by the oaths of Samuel McCraw, William Price, and Edmund Randolph. For a printed copy of the will and its three validated codicils see Minor, ''ibid''. An attested manuscript copy is filed under Jun., 1806, in the Jefferson Papers.

<sup>48</sup> This reference to a certain Negro is not as precise as we might wish. Doubtless, however, Randolph talked on Jun. 4 with a Negro man employed in Nelson Abbott's workshop. Possibly this man was one of the same "negroes in the shop" who, according to Abbott's deposition, had told Abbott on May 30 that they did not
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===Page 560===

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was uncertain whether [it was on] the 24th or 26th of May, that the prisoner had caused the appearances [of poisons in the workshop]; but at last settled that it was on Saturday [May 24] when he found the prisoner in the shop, and one of the doors forced, and the prisoner was in the act of pounding some-thing on the axe. The prisoner asked him what it was? the negro replied he believed it was ratsbane. The prisoner then scraped it as clean as he could off the axe and folded it up in a piece of paper, wiping the axe with shavings. It was generally understood and believed that Mr. Wythe had left the bulk of his estate to the prisoner.

Doctor James McClurg,<sup>49</sup> another witness, being sworn, deposeth: That he was present at the opening of the body of Michael Brown. The lower part of the stomach was very much inflamed and had the appearance of the black vomit. The deponent went to visit Mr. Wythe on the day before the boy died and found him with a fever, his tongue very foul, had had no passage for twelve hours, and was free from pain. The appearance of the boy was such as arsenic might have produced; but such as might also have been produced by a great collection of bile. The deponent was also present at the opening the body of Mr. Wythe. The whole of his stomach and intestines had an uncommonly bloody appearance, that if produced by arsenic, in his [McClurg's] opinion, death would have ensued much sooner. Mr. Wythe had been frequently attacked with disordered bowells within three years last past.

Doctor James D. McCaw,<sup>50</sup> being also sworn, deposeth: That he was called ''know'' what substance Swinney had pounded into powder. In slight but not necessarily contradictory contrast, the Negro of whom Randolph testified simply ''believed'' on May 24 that the substance was ratsbane.

<div style="font-size: 85%;">
<sup>49</sup> Under the reorganization of the College of William and Mary instigated by Thomas Jefferson in 1779, James McClurg (1746-1823), Edinburgh-trained physician, had been one of Wythe's four colleagues in the faculty. For three years Dr. McClurg held the newly created chair of the professor of anatomy and medicine. Like Wythe, McClurg went to Philadelphia in 1787 to attend the convention from which emerged the Federal Constitution. McClurg was chosen to be Richmond's mayor in 1797, 1800, and 1803. For a quarter of a century he was one of the community's out-standing physicians. When the Medical Society of Virginia was organized in 1820, he was elected its first president. Although he was too infirm to take an active part in its affairs, he was re-elected in the next year. Blanton, ''Medicine in Virginia in the Nineteenth Century'', 13, 75-76; Christian, ''Richmond'', 545.

<sup>50</sup> James Drew McCaw, M.D., was one of the founders of the Medical Society of Virginia. His father, Dr. James McCaw, founded what might be called a Virginia medical dynasty destined to last five generations. Blanton, ''Medicine in Virginia in the Nineteenth Century'', 116-117, 261, 367. James D. McCaw's offer of 1802 to inoculate the poor of Richmond against smallpox had been accepted by the Common Hall or Council. Richmond ''Examiner'', Jun. 2, 1802. Judging by James D. McCaw's testi-
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===Page 561===

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to attend Mr Wythe on the 26th of May between four and five o'clock. He had been up with a violent puking & purging, and the deponent gave him an opiate, after which he got better, and was better until the discovery of the prisoner's forgery [on Tuesday, May 27], when he became worse and continued to grow worse. The deponent saw the boy [Michael Brown] on the day before his death, when he had a fever and complained of great pain. The deponent saw him opened after his death, and thinks that his death might have been occasioned by a great accumulation of bile.

Doctor William Foushee,<sup>51</sup> being sworn, deposeth: That he attended the opening of Mr Wythe's body in the presence of many other physicians.<sup>52</sup> The stomach was very much inflamed, and appeared as if a new inflamation was coming on. There was very little bile in the liver. The same appearance that his stomach and intestines exhibited might have been produced by arsenic, or any other acrid matter.

James McClurg, William Foushee, James D. McCaw, William Rose, Samuel McCraw, Fleming Russell, William Claiborne, William Price (Register) Nelson Abbott and Taylor Williams,<sup>53</sup> here in Court acknowledge themselves

<div style="font-size: 85%;">
mony, he seems to have been more nearly the family physician to the Wythe household than any of the other physicians whose names occur in records concerning the Chancellor's last illness. To be compared with the recorded testimony of Dr. McClurg and that of Dr. McCaw concerning the autopsy on the body of Michael
Brown is DuVal's letter to Jefferson: "As a Magistrate I requested four eminent Physicians to open the body of the Boy. They did so; from the inflamation on the Stomach & Bowels they said that it was the kind of Inflamation produced by Poison." William DuVal to Thomas Jefferson, [[Jefferson-DuVal Correspondence#William DuVal to Thomas Jefferson.2C 4 June 1806|Jun. 4, 1806]], Jefferson Papers.

<sup>51</sup> William Foushee, M.D., had been born in the Northern Neck in 1749. Like McClurg, he studied medicine in Edinburgh. He served as Richmond's first mayor, 1782-1783, as the town's postmaster for several years, and as the president of its Common Hall or town council for several years. He also served in both the legislative and executive branches of the state government. For many years he presided over the James River Company's internal navigation improvement projects. The General Assembly named him among the charter trustees of the Richmond Academy in 1802. Twenty years later the Medical Society of Virginia elected him its second president. When he died in 1824, he was almost seventy-five years old and was said to have been Richmond's oldest inhabitant. His death evoked an unusually detailed obituary. Christian, ''Richmond'', 57-58, 545; Blanton, ''Medicine in Virginia in the Nineteenth Century'', 75-76; Richmond ''Enquirer'', Aug. 24, 1824.

<sup>52</sup> DuVal reported to Jefferson that William Foushee, James D. McCaw, James McClurg, and two other physicians performed the autopsy on Wythe's body on the day of his death. DuVal stated simply that they found "considerable inflamation in the Stomach," but he added in the same context that it was "strongly suspected" that Wythe and Michael Brown had been poisoned with yellow arsenic by George Wythe Swinney. William DuVal to Thomas Jefferson, [[Jefferson-DuVal Correspondence#William DuVal to Thomas Jefferson.2C 8 June 1806|Jun. 8, 1806]], Jefferson Papers.

<sup>53</sup> It may be highly significant that four of the fourteen witnesses were not
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severally indebted to his Excellency William H. Cabell governor or chief magistrate of the Commonwealth of Virginia, in the sum of one hundred pounds each, of their respective goods and chattels, lands and tenements, to be levied, and to the said governor and his successors, for the use of the said Common- wealth rendered: Yet upon this Condition, that if the said James McClurg, William Foushee, James D. McCaw, William Rose, Samuel McCraw, Fleming Russell, William Claiborne, William Price (Register) Nelson Abbott and Taylor Williams, shall severally make their personal appearance before the Judges of the District Court directed by law to be holden at the Capitol in this City on the first day of the next term of that Court, to give evidence on behalf of the Commonwealth against George W. Swinney, who stands accused of murder, and shall not depart thence without the leave of the said Court, this recognizance is to be void.

(Minutes signed) E: Carrington, Mayor

The depositions of the sixteen witnesses in the two proceedings of June 2 and 23 make Swinney's motives for murder clearer than other contemporary records. Obviously, that troubled knave had tried to solve more than one of his problems at once. By a single desperate deed he might forestall discovery of his forgeries, prevent any resultant reduction or cancellation of the legacy he would receive from Wythe, and claim his inheritance prematurely.

But the second Hustings Court record does not enable us to determine with finality precisely when and how Swinney committed his acts of murder. None of the testimony links arsenic with the coffee served in Wythe's cottage, according to the traditional story of the poisonings, at breakfast on Sunday, May 25. To contrary import are the depositions of Claiborne, McCraw, and Randolph. Their assertions under oath indicate that Swinney had mixed some arsenic with strawberries and that Wythe ate strawberries for supper on Saturday, May 24. Wythe's breakfast coffee may have become the supposed vehicle for the poison on the invalid ground of reasoning of the ''post hoc, propter hoc'' type. Actually, so far as we can tell,

placed under bond to be available to serve as witnesses in the forthcoming trial of Swinney on the charge of murder before the District Court. The four who were exempted from such an obligation were William DuVal, Samuel Greenhow, Edmund Randolph, and Tarlton Webb. While in some respects their testimony before the Hustings Court merely confirmed that of other witnesses, in these respects, and more especially in reference to other observations concerning which others did not testify, the evidence submitted by these four could not be omitted without weakening the case against Swinney.

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he may have consumed poisoned foods at both meals. A fatal dose of arsenic usually produces acute symptoms within about an hour after it enters the human stomach, and death usually follows within one to three days. Wythe's case was not a typical one in the latter respect, and we have scant cause to assume that it was a normal one in the former respect. Fatal dosages of arsenic have been known in rare instances to cause no symptom for as many as twelve hours, particularly if the poison was ad- ministered in solid rather than liquid form and if a full meal was consumed with it; and death has been known to result as much as two weeks after the appearance of symptoms, as it did in Wythe's case. An inexperienced, experimenting Swinney may have underestimated on May 24 the amount of arsenic required to accomplish his premeditated purpose. He may have awaked the next morning to find that his attempt of the previous afternoon or evening had failed. He may then have added a second and larger quantity of arsenic to the breakfast menu. Neither this nor any alternative possibility can be proved conclusively from the available evidence.

More important than questions about details of that sort is the official record's revelation of the limited, inconclusive nature of the physicians' findings in the two autopsies. They did not exhaust every means known to the medical scientists and chemists of their generation to determine whether or not the deaths of Michael Brown and George Wythe had been unnatural ones. One authoritative treatise, for example, published in 1832 but embodying comparatively little that had been learned since 1806, devoted fully a hundred pages to its discussion of arsenic poisoning, forty of them to various definitive tests by which the presence of arsenic can be determined. Its author commented on the ease with which that almost tasteless and odorless chemical element could be procured in various forms and compounds and could be administered surreptitiously. Then he added,

"It is fortunate, therefore, that there are few substances in nature, and perhaps hardly any other poison, whose presence can be detected in such minute quantities and with so great certainty."<sup>54</sup> The inflamed tissues observed by the Richmond doctors were ambiguous. The same kind of examination today would do little more, if any, to pin down positively the cause of such deaths, for gastrointestinal inflammations of quite similar

<div style="font-size: 85%;">
<sup>54</sup> Robert Christison, ''A Treatise on Poisons, in Relation to Medical Jurisprudence, Physiology, and the Practice of Physic'' (2d ed., Edinburgh, 1832), 223. This volume's treatment of arsenic poisoning covers pp. 223-324.
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appearance can result from any of several distinct causes, both natural and unnatural. The Richmond physicians' post-mortem inspections should not have ended short of a few simple laboratory procedures. Standard analyses of that kind would almost certainly have proved beyond question whether or not arsenic had ended the lives of the youthful Michael Brown and the aged George Wythe.

The above testimony in both of the suits of the Commonwealth ''v.'' Swinney confirms an undisputed conclusion reached by all who have ever studied the matter: Wythe himself became fully convinced on his death- bed that Swinney was a forger and a murderer. Yet, in fact, that young man escaped legal punishment for both offenses. His road to freedom was, however, a tortuous one. Sometime during the summer of 1806 the charges against him were referred to a grand jury. It returned true bills. Thus it became the third judicial body to render a verdict of guilt against Swinney on each accusation, for the same conclusion had already been reached on each count by one or more of Richmond's magistrates and by the Hustings Court. Specifically, the grand jury cleared the way for the trial of Swinney by the District Court on each of six distinct indictments—one for the murder of Wythe, another for that of Michael Brown, and four for forgeries of Wythe's name on as many checks.<sup>55</sup>

On September 2, 1806, the District Court proceeded to tackle what the [[Respectfully Dedicated to the Legislature of Virginia|Richmond ''Enquirer'']] termed "the celebrated trial of George W. Sweeney, on the charge of administering arsenic to his great Uncle the venerable George Wythe." Judges Joseph Prentis and John Tyler, Sr., whose son of the same name was destined to become the tenth President of the United States, were the two members of Virginia's General Court assigned to preside over this session in the Richmond district.<sup>56</sup> Presumably, the two judges' judicial robes hid the mourning bands of crape that they and other members of the General Court had resolved to wear on their left arms for three months in tribute to the jurist Virginia had lost.<sup>57</sup> At the

<div style="font-size: 85%;">
<sup>55</sup> There is no record of any decision in regard to the other two checks that William Dandridge and Peter Tinsley had testified were, in the opinions of Dandridge and Wythe, also forged.

<sup>56</sup> [[Richmond Enquirer, 9 September 1806|Richmond ''Enquirer'', Sept. 9, 1806]].

<sup>57</sup> Ibid., Jun. 24, 1806; [[Virginia Argus, 17 June 1806|Richmond ''Virginia Argus'', Jun. 17, 1806]]; Richmond ''Impartial Observer'', Jun. 21, 1806. The Governor and Council had resolved on Jun. 14, "in honour of the deceased," to wear black bands similarly for one month as an "outward Sign of respect to his memory." Journals of the Council of Virginia (MSS. in the Virginia State Library), XXVII, 448. When the Virginia General Assembly convened in Dec., 1806, its members also resolved unanimously to "wear a badge of
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prosecuting attorney's table sat Philip Norborne Nicholas,<sup>58</sup> the popular young Attorney General of Virginia and successful leader in recent years of the Jeffersonian Republican party in the state. Nicholas had known Wythe while the Chancellor had still resided in Williamsburg. More recently they had been associated in various legal and political activities. Presumably, Nicholas had every reason to prosecute the case with all the vigor at his command.

But the shocked, incensed atmosphere of June had doubtless grown calmer by September, and impressive talents had been aligned on Swinney's side as counsel for the defense.<sup>59</sup> One of these lawyers was the same Edmund Randolph who had written the codicil disinheriting Swinney, the same Randolph who had given damaging testimony against him in the Hustings Court. The other lawyer at Swinney's side was the same William Wirt who had expressed a hope that no attorney would be found to defend him, so that he would be left to suffer the fate he deserved.

Wirt had been contemplating at the beginning of the summer a desire to move from Norfolk to Richmond, for his wife found Norfolk's summers unbearable. He had concluded at that distance within a month after Wythe's death that Swinney could conceivably be innocent of murder. Judge William Nelson of the General Court had told him that "there was a difference of opinion" among Richmond doctors as to the cause of the Chancellor's death and that "the eminent McClurg, amongst others, had pronounced that his death was caused simply by bile and not by poison." Then a brother of Swinney's distressed mother had traveled eastward to implore Wirt to serve as an attorney for the defense.<sup>60</sup>

Although Wirt had already decided before that visit that "it would not be so horrible a thing to defend" Swinney "as, at first, I had thought it," the plea made by his uncle posed a problem of conscience and of reputation. By letter Wirt asked his wife, "What shall I do?" And then he proceeded to influence her decision. "If there is no moral or professional impropriety in it, I know that it might be done in a manner which would avert the displeasure of every one from me, and give me a splendid ''debut'' in the metropolis. Judge Nelson says I ought not to hesitate a moment

<div style="font-size: 85%;">
mourning" for one month. Washington, D.C., [[National Intelligencer, 15 December 1806|''National Intelligencer, and Washington Advertiser'', Dec. 15, 1806]].

<sup>59</sup> ''Ibid.''

<sup>60</sup> William Wirt to his wife, Jul. 13, 1806, Kennedy, ''William Wirt'', I, 152-153.
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<blockquote>
to do it; that no one can justly censure me for it; and, for his own part, he thinks it highly proper that the young man should be defended. Being himself a relation of Judge Wythe's, and having the most delicate sense of propriety, I am disposed to confide very much in his opinion."'

The issue was settled within ten days. Nelson reiterated his opinion as to "the perfect propriety of the step." Mrs. Wirt evidently protested that her husband need not fear that she would suffer reproach. "I shall defend young Swinney under your counsel," he wrote her. "My conscience is perfectly clear, from the accounts I hear of the conflicting evidence."<sup>62</sup>

Records of the District Court, in which Randolph and Wirt undertook to save the life of George Wythe Swinney, are not extant; apparently they did not survive the fire that accompanied the Confederate evacuation of Richmond in April, 1865. Only from other sources can we learn whether or not the defense attorneys achieved their goal. The Richmond ''Enquirer'' reported succinctly the results of what was probably a day replete with courtroom drama and legal technicalities. "After an able and eloquent discussion" by counsel for the Commonwealth and for Swinney, read that newspaper's summary, "the jury retired, and in a few minutes, brought in the verdict of ''not guilty''. A similar indictment against him [Swinney] for the poisoning of Michael, a mulatto boy (who lived with Mr. Wythe) was quashed without a trial."<sup>63</sup>

There could have been no doubt whatsoever that Virginia's laws of 1806 defined murder by poisoning, if it were committed by a free person, to be murder of the first degree, punishable by death.<sup>64</sup>Some other ex- planation of the jury's astonishing verdict must be sought. Editor Thomas Ritchie offered his readers one hint why Randolph and Wirt had been able to win a quick decision in favor of their despised client. Some of the "strongest testimony" that had been heard by the Hustings Court and by the grand jury, Ritchie remarked, "was kept back from the petit jury" in the District Court. "The reason is, that it was gleaned from the evidence of negroes, which is not permitted by our laws to go against a white

<div style="font-size: 85%;">
<sup>61</sup> ''Ibid''. Nelson's distant kinship to Wythe was evidently through the second Mrs. Wythe, who had been a Taliaferro. See a copy of the will of Rebecca Cocke Taliaferro of "Powhatan," James City County, Nov. 12, 1810, in the possession of Colonial Williamsburg.

<sup>62</sup> William Wirt to his wife, Jul. 23, 1806, Kennedy, ''[[Life of William Wirt#Page 154|William Wirt]]'', 1, 154.

<sup>63</sup> [[Richmond Enquirer, 9 September 1806|Richmond ''Enquirer'', Sept. 9, 1806]].

<sup>64</sup> the enactments of 1796 and 1803, Shepherd, ''Statutes'', II, 5-14 and 405-406, respectively.
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man."<sup>65</sup> Actually, the reason assigned by the editor would have been more nearly true if he had phrased it more carefully. As far back as 1732 and as recently as 1801 the statutes of Virginia had stipulated that a Negro or a mulatto could be qualified as a witness only in a lawsuit brought against a Negro or a mulatto or by the commonwealth for one.<sup>66</sup> That is why Lydia Broadnax had not told the Hustings Court in June whatever she knew about the involvement of George Wythe Swinney in the deaths of Michael Brown and George Wythe.

The legal disability of Negroes to testify against Swinney had loomed large in people's thinking about the prospective trials of that ingrate for murder ever since Michael had died. Even before William Wirt learned with certainty that Wythe had also been a victim, Wirt had realized that one law might prevent the fulfillment of justice under another. "The chain of circumstances fix the guilt of Sweney beyond reach of doubt," Wirt had then been willing to assert, "but some of those circumstances, material to his conviction in a court of law, depend, it seems, on black persons, & so he will escape for the poison[ings]. he is under prosecution for the forgery & of that must be convicted."<sup>67</sup>

One logical question is answered neither by Ritchie's explanation nor by Wirt's prophecy. Why was any of the evidence that had been admissible in the three previous proceedings—evidence that had resulted in three verdicts of guilt—not presented in the District Court? No record answers that question. Possibly the District Court refused to hear some of the testimony that had been given before the Hustings Court. Evidence given by the white witnesses in June concerning what Negroes had ob-

<div style="font-size: 85%;">
<sup>65</sup> [[Richmond Enquirer, 9 September 1806|Richmond ''Enquirer'', Sept. 9, 1806]].

<sup>66</sup> The exact words of the law of 1801 were: "Any negro or mulatto, bond or free, shall be a good witness in pleas of the commonwealth for or against negroes or mulattoes, bond or free, or in civil pleas where free negroes or mulattoes shall alone be parties." Shepherd, ''Statutes'', II, 300. The statute of 1785 was to the same effect, although its provisions were couched in negative terms and omitted the words "bond" and "free" in each of the five instances of their use in the enactment of 1806. Hening, ''Statutes'', XII (Richmond, 1823), 182-183. Digests of the 1732 and 1748 statutes and of related legislation can be found conveniently in June Purcell Guild, ''Black Laws of Virginia: A Summary of the Legislative Acts of Virginia concerning Negroes from Earliest Times to the Present'' (Richmond, 1936), 154-155.

<sup>67</sup> William Wirt to James Monroe, Jun. 10, 1806, Monroe Papers, vol. XI, no. 1373. Internal evidence in this letter indicates that for the facts he stated Wirt was indebted to a communication written on Jun. 5, 1806, by his brother-in-law, Governor Cabell, and the prophecies Wirt voiced may also have reflected the Governor's thinking as of that date.
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served and had told them may have been ruled inadmissible by Judges Prentis and Tyler because of its Negro source or its hearsay nature. On the other hand, we have no proof acceptable by the ordinary standards of historical criticism that Swinney was acquitted because of the repression of the testimony Lydia Broadnax or other Negroes might have given but for Virginia's laws. Ritchie's allegation about the withholding of testimony "gleaned from the evidence of negroes" remains unsubstantiated, and Wirt's prophecy can be considered to have been merely a recognition of the flimsiness of the circumstantial evidence others would be able to give.

The simple fact remains that no known witness was able to assert in any of the four proceedings that he had actually seen Swinney put poison into food eaten by Michael Brown or by George Wythe. Moreover, no physician is known to have been willing to swear that either of the two autopsies proved that death had been caused by a poison. In other words, the evidence against Swinney was purely circumstantial.

Thomas Ritchie himself had not been hysterical in his attitude toward Swinney during the first days of resentment following the news of the Chancellor's death. The editor had remembered, sanely and circum- spectly, that the accusations against Swinney had not then been proved and that, until and unless they were, he should be presumed innocent. "Every situation in life has its rights and its duties," Ritchie had cautioned his readers. "Let us therefore respect the rights of the accused."<sup>68</sup> If Swinney's two lawyers took advantage in the District Court of every legal technicality to protect their client's rights, Ritchie should have been among the last to imply any criticism of them, for they had placed themselves under obligation to do so.

In any case, George Wythe was dead. Another man's life was at stake. It is the very genius of the legal system Wythe had received from his forefathers and had himself helped to develop and to refine that this second life should not be taken lightly. Since we do not know in detail what transpired in that Richmond courtroom on September 2, 1806, we are left in the position of being forced to accept at face value the jury's final decision, which was that Swinney had not been proved beyond reasonable doubt to have murdered George Wythe and that he was therefore ''not guilty''. Similarly, we must accept the opinion of Attorney General Nicholas that it would have been useless to try to prove beyond reasonable doubt that Swinney had murdered Michael Brown.

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<sup>68</sup> [[Richmond Enquirer, 10 June 1806|Richmond ''Enquirer'', Jun. 10, 1806]].
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Nevertheless, we can record the fact that those jurymen are the only persons known to have expressed at any time in or since 1806 an opinion that Swinney was not a murderer. William Wirt had concluded that Swinney could conceivably be innocent of the charge, but Wirt left no record now extant that he actually believed Swinney to be the victim of an unjust accusation. The common impression throughout the summer of 1806 was that Swinney had committed two premeditated murders. That opinion has remained unchanged to this day.

George Wythe Swinney had escaped death by hanging. It remained to be seen whether or not he would become permanently branded a convicted forger. Within another twenty-four hours he received a tentative answer to this second question. On Thursday, September 3, 1806, he was adjudged guilty on two of the forgery indictments.<sup>69</sup> But these verdicts were not allowed to stand unquestioned. Within ten days William Wirt pleaded successfully, "in an eloquent and ingenious speech" addressed to Judges Prentis and Tyler of the District Court, for arrest of judgment. Wirt's objections were considered acceptable by the two judges and were referred to the next session of the General Court for approval or rejection.<sup>70</sup> Wirt had changed his mind since his assertion in June that Swinney would doubtless be convicted of the forgery charges.

Someone else had come earlier than Wirt to the conclusion that the laws of Virginia would not justify inflicting punishment on Swinney for having obtained certain things of value at the state's bank by using forged signatures. Indeed, former Governor Page had decided in June that what Swinney had done at the Bank of Virginia was a crime only against God, not against any law of the Commonwealth of Virginia. "As to this young Man's Forgeries," Page had commented in highly moralistic vein but with a practical twist, "when religion is out of the way, I can see nothing in our law, that could restrain him, or any one else from a free exercise of that lucrative Employment. But for a sense of religion, I myself could not have done a better act for the Benefit of my Wife & Children, than to have . . . died . .. consoled with the pleasing reflection that I had handsomely provided for my Family, in a way permitted, nay chalked out by our Laws." <sup>71</sup>

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<sup>69</sup> [[Richmond Enquirer, 9 September 1806|''Ibid.'', Sept. 9, 1806]].

<sup>70</sup> Richmond ''Virginia Gazette, & General Advertiser'', Sept. 13, 1806.

<sup>71</sup> Page's letter continued: "I could, if under no religious impressions, tell my Wife & Children, that no one would think the worse of them for what I had done; and indeed that they would always be respected in proportion to their riches, and
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Could it be true, as Page thought he perceived, that Swinney had violated no law by his use of counterfeited signatures of George Wythe? Almost entirely so, declared the General Court in two quite technical opinions on November 17, 1806, with Judges Francis T. Brooke, Paul Carrington, Jr., Hugh Holmes, Archibald Stuart, John Tyler, Sr., and Robert White on the bench. They learned that the District Court's jury had convicted Swinney on an indictment for having obtained from the Bank of Virginia on May 27, 1806, a ''banknote'' for $100. In order to do so, he had presented to William Dandridge both a counterfeited letter and a forged check purporting to have been written and signed by Wythe. But the judges also heard that the arrest of judgment had been awarded on the ground that the forgeries of which Swinney had been accused did not actually constitute offences against a Virginia statute enacted in 1789, which was the only law the forgery indictments against him had contrived to mention.<sup>72</sup>

For one thing, William Wirt had argued that the 1789 law "was intended to punish a pre-existing evil" and could not possibly have reference to any bank, since no bank was established in Virginia until "many years" later. In the second place, Wirt contended that the law's phraseology, as well as its date, precluded any possibility of its being applied to the Bank of Virginia. The statute made illegal any deceitful deed, bill of sale, or other such document that would result in the robbery of one or more "private individuals." The bank could not properly be considered a

<div style="font-size: 85%;">
that both I and they would have been despised had I left them poor—that therefore the riches I had acquired for them would secure them respect in this World, and that as to any other, they need not trouble themselves about it—that they ought to enjoy their hearts desire in all things, and say 'let us eat & drink for tomorrow we die.' . . . But believing as I do in a divine revelation, I had rather perish with my Wife & Children through absolute Want, than that any one of us, should do one unjust or dishonest Act." John Page to St. George Tucker, Jun. 29, 1806, Tucker- Coleman Papers.

<sup>72</sup> The law that Swinney was alleged by the indictment to have broken had been adopted on Nov. 18, 1789. It was entitled "An act against those who counterfeit letters or privy tokens, to receive money or goods in other men's names." It provided that "if any person or persons, shall falsely and deceitfully obtain or get into his or their hands or possession, any money, goods or chattels of any other person or persons, by colour and means of any such false token or counterfeit letter, made in any other man's name as is aforesaid; every such person and persons so offending, and being thereof lawfully convicted in the court of the district, in which such offence shall have been committed," shall be subject to a maximum term of one year in prison and to "setting upon the pillory." Hening, ''Statutes'', XIII (Philadelphia, 1823), 22.
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"person or persons" within the meaning of the law. It was "a body corporate, an ideal body," and "no more a person, than the commonwealth of Virginia." Anything, therefore, that Swinney had obtained from the bank could not have been procured in violation of a law that made punishable the getting by false means of "any money, goods or chattels of any other person or persons." And in the third place, Wirt argued, what Swinney had received was not part of "the money or goods of the said George Wythe, because having been delivered under a check not drawn by him, the bank hath no right to charge it to his account."

In connection with the ''banknote'' in question under the first indictment, the General Court found Wirt's claims convincing enough. Its judges concluded that they should grant a permanent arrest of judgment. Thus they reversed the petit jury's verdict that Swinney was guilty; thus they pronounced him innocent of the crime alleged to have occurred on May 27. While Wythe lay on his deathbed that Tuesday, Swinney had perpetrated a forgery, but it was not an unlawful forgery.

The other indictment under which the District Court had found Swinney guilty of a violation of the same statute was quite similar to the first. The second differed in only one significant particular. It involved $50 that Swinney had obtained from the bank by the same means on April 11, 1806, in the form of ''currency''. Wirt's appeal in the District Court for an arrest of judgment had been won on the same three grounds, and they were pleaded anew as sufficient cause for making the temporary ban against sentence upon Swinney a permanent one.

In this instance the General Court did not agree. It refused to accept Wirt's argument that the "''money current''" Swinney had gotten at the bank in April could not properly be charged against the account of Wythe, by virtue of the forged check, and was therefore not Wythe's money until Swinney had acquired possession of it falsely. Evidently, Virginia's supreme tribunal for criminal law decided that neither of Wirt's first two points was valid in respect to either indictment and that the validity of Wirt's third contention depended entirely upon the natures of the two kinds of property the forger had received. In other words, the six judges' two decisions meant, essentially, that the promissory ''banknote'' Swinney obtained on May 27 had not been Wythe's "money, goods or chattels" but that the ''currency'' involved in the similar transaction of April 11 had been. If this distinction seems subtle, thin, and flimsy, it appears to have been not more so than whatever reasoning persuaded the judges to ignore
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Wirt's assertions that the 1789 law was not at all pertinent to the later means of "getting something for nothing" upon which an unconsciously clever forger had stumbled. The chagrined John Page, who had been Governor of Virginia when the state bank was established, had believed on June, 1806, that none of Swinney's forgeries was illegal. Page had been much disconcerted by his discovery that the commonwealth had not foreseen and had not prohibited such misuses of another's signature. The General Court, on the other hand, professed to believe that one of Swinney's forgeries had inadvertently violated a law more than fifteen years old and obviously designed to curb other frauds wrought by means if forgery. Consequently, the court decreed that punishment should be imposed upon Swinney under the second indictment by the District Court.<sup>73</sup>

Nevertheless, according to a report derived from official records that are not now extant, the District Court did not execute its sentence, which was that Swinney should spend one hour in the pillory at Richmond's public market and six months in prison. Contrary to the General Court's decree and for reasons inexplicable today, the District Court is said to have granted Swinney a second trial on the indictment the higher court had upheld, and then the attorney for the commonwealth declined to prosecute the case.<sup>74</sup>

Thus freed, technically at least, of all charges against him, but with a reputation he would never be able to live down locally, the "unfortunate" Swinney "then sought refuge in the West, where his career was brought to a premature and miserable close."<sup>75</sup> So reads one account, written about the middle of the nineteenth century, of the end of the life of

<div style="font-size: 85%;">
<sup>73</sup> William Brockenbrough and Hugh Holmes, ''[[Commonwealth against George Wythe Swinney|Collection of Cases Decided by the General Court of Virginia, Chiefly Relating to the Penal Laws of the Commonwealth, Commencing in the Year 1789 and Ending in 1814, Copied from the Records of Said Court, with Explanatory Notes]]'' (Philadelphia, 1815), 146-151.

<sup>74</sup> Minor, "[[Memoir of the Author]]," in Wythe, ''Decisions'', xxviii. In a footnote on that page Minor asserted: "The records of these proceedings [in the District Court after the return to it of the decree of the General Court in the last of tie suits of the Commonwealth v. Swinney] have been consulted in the office of tie Superior Court of Law for Henrico County." Minor wrote those words in or before 1852. Presumably, reorganizations of Virginia's judicial system between 1806 and 1852 account for the fact that records of the District Court in Richmond for its Apr., 1807, term (the first session it was scheduled to have after the Nov., 186, term of the General Court) had come by 1852 into the custody of the Superior Court of Law for Henrico County. The fire in Richmond during April 2-3, 1865, apparently explains their disappearance.

<sup>75</sup> ''Ibid''.
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the young man to whom George Wythe had been "kinder than a Father."<sup>76</sup> According to the memory of another Richmonder fifty years after George Wythe Swinney had been a defendant in the capital's courtrooms, Swinney went to Tennessee, stole a horse, served a term in a penitentiary, and was "then lost sight of."<sup>77</sup> The forgeries that preceded and led directly to the death of George Wythe may not have been plainly and provably crimes against the Commonwealth of Virginia. But they served one useful purpose, for they pointed out a glaring loophole in Virginia's laws. The state acted promptly to plug that gap. On the last day of the same year the General Assembly adopted and put into immediate effect "An ACT to punish certain thefts and forgeries." That law clearly defined as a crime every deed by which any person should "fraudulently obtain, or aid or assist in obtaining from the Bank of Virginia, or any of its offices of discount and deposit, any bank or post note, or money, by means of any forged or counterfeit check or order whatsoever, knowing the same to be forged or counterfeited." Violators of the new statute, when they were properly found guilty in court, were to be imprisoned for "not less than two, nor more than ten years."<sup>78</sup>

In the final analysis, we may guess, George Wythe Swinney escaped death on the gallows because of three considerations. One of these seems to be the forgiveness Wythe himself gave him. That could not alter one whit Swinney's legal liability to pay the penalty for murder, but it may have influenced, both consciously and unconsciously, the men who prosecuted and defended Swinney, those who testified, the judges who decided what evidence was admissible, and the twelve "good men and true" who retired to a jury room in the September trial. A second determining factor probably was the failure of the physicians to perform complete autopsies and thus to be prepared to assert unequivocally on the witness stand that, in their professional judgments, the deaths of Michael Brown and George Wythe had been caused by arsenic poisoning. Such testimony would have become, quite possibly, the "clincher" that would have strengthened the

<div style="font-size: 85%;">
<sup>76</sup> William DuVal to Thomas Jefferson, [[Jefferson-DuVal Correspondence#William DuVal to Thomas Jefferson.2C 4 June 1806|Jun. 4, 1806]], Jefferson Papers.

<sup>77</sup> Dove, "[[Memorandum Concerning the Death of George Wythe|Memoranda]]." Although Minor accepted Dr. Dove's recollections they are so untrustworthy in matters that can be checked that the unsubstantiated statements concerning Swinney's life after he escaped the clutches of the law in Richmond made by both Dove and Minor must be considered traditionary rather than supported by valid evidence.

<sup>78</sup> Shepherd, ''Statutes'', III, 289.
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web of circumstantial evidence against Swinney enough to put a knotted rope around his neck. A third presumed factor was inherent in Anglo-American jurisprudence. The doctors and other Virginians who participated as witnesses, attorneys, jurymen, and judges in Swinney's final trial for murder were honorable men. They cleared him of the accusation because, evidently, they thought it important to save the life of a young man who ''might'' be innocent, although he certainly seemed not to be. George Wythe himself would doubtless have had the same respect for the legal principle of a reasonable doubt.

Did Virginia justice suffer a miscarriage in 1806? For want of complete records, we cannot properly lift our second-guessing voices to cry that it went wrong. But we can agree heartily with the opinion held by Wythe himself and never relinquished by most of his sympathetic but straightforward contemporaries—the belief that, by every standard other than the technical ones of the law, Swinney had assuredly done serious wrongs. Like Wythe's survivors, we can only take comfort in the fact that Virginia justice may have avoided adding another wrong to Swinney's and in the fact that his chief victim, Chancellor Wythe himself, the "Virginia Socrates" and the "American Aristides," had achieved on his deathbed, by revoking his generous bequests to Swinney, one final act of obvious equity.
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==See also==

*[[Commonwealth against George Wythe Swinney]]
*[[Honest Lawyer]]
*[[Hustings Court Minutes]]
*[[Hustings Court Order Book]]
*[[Jefferson-DuVal Correspondence]]
*[[Life of William Wirt]]
*[[Memoir of the Author]]
*[[Memoranda Concerning the Death of Chancellor Wythe]]
*[[Murder of George Wythe]]
*[[National Intelligencer, 15 December 1806]]
*[[Richmond Enquirer, 8 July 1806]]
*[[Richmond Enquirer, 10 June 1806]]
*[[Richmond Enquirer, 9 September 1806]]
*[[Virginia Argus, 10 June 1806]]
*[[Virginia Argus, 17 June 1806]]
*[[Virginia Argus, 25 June 1806]]
*[[Virginia, June General Court, 1806]]

==References==
<references/>

==External links==

[[Category:Biographies (Articles)]]
[[Category:Murder of George Wythe]]

Examinations of George Wythe Swinney for Forgery and Murder

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{{DISPLAYTITLE:"Examinations of George Wythe Swinney for Forgery and Murder: A Documentary Essay"}}
[[File:WilliamAndMaryQuarterlyOctober1955Wythe.jpg|thumb|right|400px|Engraved portrait [[George Wythe]] by [[Depictions of Wythe|J.B. Longacre]], from the ''William and Mary Quarterly,'' 3rd ser., 12, no. 4 (October 1955), 512.]]

Wythe scholar W. Edwin Hemphill contributed to a special issue of ''The William and Mary Quarterly'', dedicated to the murder of [[George Wythe]], in October, 1955. The issue was published in accordance with the Marshall-Wythe celebration at the [http://law.wm.edu/ College of William & Mary Law School] on September 25, 1954, for the bicentennial of [[John Marshall|John Marshall's]] birth. The journal pairs Hemphill's essay on "[[Media:HemphillExaminationsOfGeorgeWytheSwinneyOctober1955.pdf|Examinations of George Wythe Swinney for Forgery and Murder]],"<ref>W. Edwin Hemphill, "Examinations of George Wythe Swinney for Forgery and Murder: A Documentary Essay," ''William and Mary Quarterly'' 3rd ser., 12, no. 4 (October 1955), 543-574.</ref> with another by [[wikipedia:Julian P. Boyd|Julian P. Boyd]], "[[Murder of George Wythe]]."<ref>Julian P. Boyd, "[[Media:BoydMurderOfGeorgeWytheOctober1955.pdf|The Murder of George Wythe]]," ''William and Mary Quarterly'' 3rd ser., 12, no. 4 (October 1955), 513-542.</ref> Hemphill had rediscovered witness testimony given for [[Death of George Wythe#Sweeney's Trial|Sweeney's murder trial]] in 1806, and both authors made use of this new information.

Hemphill and Boyd's work was published as a pamphlet reprint the same year, under the title: [https://catalog.swem.wm.edu/law/Record/343766 ''The Murder of George Wythe: Two Essays''] (Williamsburg, VA: [https://oieahc.wm.edu/ Institute of Early American History and Culture,] 1955).

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==Article text, October 1955==
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'''Examinations of George Wythe Swinney<br />for Forgery and Murder: A Documentary Essay'''<br />W. Edwin Hemphill*
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“I SHUDDER when I think of it." Thus wrote [[wikipedia:John Page (Virginia politician)|John Page]] three weeks after the death of [[George Wythe]] in Richmond on June 8, 1806.<sup>1</sup> Less than a year and a half had elapsed since a "numerous concourse" of Jeffersonian Republicans had gathered at the Washington Tavern in the capital on March 4, 1805, to celebrate the second inauguration of [[Thomas Jefferson]] as the President of the United States. On the joyous occasion of the party's victory banquet Governor Page had asked Judge Wythe to retire and had then proposed a volunteer toast to "George Wythe, distinguished alike for his wisdom and integrity as a magistrate, and his zeal and disinterestedness as a patriot." The tavern's hall had resounded with nine cheers—as many as were given in response to any prearranged or spontaneous toast, even that to the President himself.<sup>2</sup> Nine months later Page had retired from the governorship.

As he sat at his writing desk late in June, 1806, amid the peace and security of "Rosewell," his magnificent home in Gloucester County, John Page reflected upon the saddening, disheartening news he had heard during a recent trip to Richmond. [[William DuVal]], George Wythe's nearest neighbor, had told Page how their mutual friend had suffered and had died—and how very suspect certain circumstances preceding that death seemed. But nothing had yet been proved. So the circumspect Page scribbled to another friend an outburst that was more a sermon than a digest of the evidence. "I know only enough" about the "horrid tale," he remarked in his letter to St. George Tucker, one of Wythe's students and the judge who had succeeded Wythe in the chair of law in the College

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* Mr. Hemphill is Managing Editor of ''Virginia Cavalcade'' and a member of the staff of the Virginia State Library. These depositions were discovered by Mr. Hemphill and are now printed for the first time in this issue of the ''Quarterly''.

<sup>1</sup> John Page to [[St. George Tucker]], Jun. 29, 1806, Tucker-Coleman Papers, Colonial Williamsburg.

<sup>2</sup> Richmond ''Enquirer'', Mar. 8, 1805.
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[[File:BoydHemphillMurderOfGeorgeWytheTwoEssays1955.jpg|thumb|right|400px|Title page from Boyd and [[Examinations of George Wythe Swinney for Forgery and Murder|Hemphill's]] pamphlet reprint, [https://catalog.swem.wm.edu/law/Record/343766 ''The Murder of George Wythe: Two Essays''] (Williamsburg, VA: Institute of Early American History and Culture, 1955).]]
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of William and Mary, "to shock my Soul." But the former Governor could not forbear comment along other lines. The murder of Chancellor Wythe, he exclaimed, made him "feel for humanity—and the wounded honor of my Country!"<sup>3</sup>

[[wikipedia:William H. Cabell|Governor William H. Cabell]], Page's successor, was also distressed. He reminded one of his sisters-in-law of their experience when they had visited a Miss Nelson, who had then been living in the modest Richmond home of her uncle, the widowered, scholarly Chancellor. "She and all of us were almost children, and few grown men would have found any interest in staying in the room where we were. But the good old gentleman brought forth his philosophical apparatus and amused us by exhibiting experiments, which we did not well comprehend, it is true, but he tried to make us do so, and we felt elevated by such attentions from so great a man."<sup>4</sup>

The up-and-coming [[wikipedia:William Wirt (Attorney General)|William Wirt]], who had served for a year in a judicial office coordinate with that of the victim,<sup>5</sup> wrote from Norfolk to [[wikipedia:James Monroe|James Monroe]], who was abroad, in indignant terms about the "dose of arsenick administered" to "poor old Chancellor Wythe."<sup>6</sup> Five weeks later Wirt could assure his absent wife, "I dare say you have heard me say that I hoped no one would undertake the defence of [the accused, George Wythe] Swinney, but that he would be left to the fate which he seemed so justly to merit."<sup>7</sup>

The editor of a Richmond newspaper was upset enough to describe his news announcement of the death as a "painful task."<sup>8</sup> An editor in Raleigh, North Carolina, was told "by a gentleman lately from Rich-

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<sup>3</sup> John Page to St. George Tucker, Jun. 29, 1806, Tucker-Coleman Papers.

<sup>4</sup> William H. Cabell to Mrs. William Wirt (undated), quoted in John Pendleton Kennedy, ''[[Life of William Wirt#Page 151|Memoirs of the Life of William Wirt, Attorney General of the United States]]'' (Philadelphia, 1849), I, 151-152. Hereafter cited as Kennedy, ''William Wirt''.

<sup>5</sup> Ambitious for wealth, Wirt found his position as judge of the Superior Court of Chancery for the Eastern District irksome, its salary barely adequate in view of his second marriage, which took place in September, 1802. It "is possible," he observed wryly, "that I may, like Mr. Wythe, grow old in judicial honors and Roman poverty. I may die beloved, reverenced almost to canonization by my country, and my wife and children, as they beg for bread, may have to boast that they were mine." [[Life of William Wirt|William Wirt to Dabney Carr]], Feb. 13, 1803, ''ibid.'', 95. In May, 1803, Wirt returned to the practice of law as an attorney, with his residence and headquarters in Norfolk. ''Ibid.'', 87-101.

<sup>6</sup> William Wirt to James Monroe, Jun. 10, 1806, Monroe Papers, vol. XI, no. 1373, Library of Congress.

<sup>7</sup> William Wirt to Elizabeth Gamble Wirt, Jul. 13, 1806, Kennedy, ''[[Life of William Wirt#Page 152|William Wirt]]'', 1, 152-153.

<sup>8</sup> [[Virginia Argus, 10 June 1806|Richmond ''Virginia Argus'', Jun. 10, 1806]].
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mond" about the crime and was thus enabled to "scoop" the world by publishing the first printed details, albeit inaccurate ones, of the "circumstances of this horrid transaction."<sup>9</sup> Newspapers as far away as Boston recorded its effect.<sup>10</sup> Richmond's press devoted an apparently unprecedented amount of space to the modest, touching, but reserved funeral oration by [[William Munford]]<sup>11</sup> and to laudatory tributes received as anonymous communications to the editors; the total aggregated what seems to have been more column inches of eulogy than had been elicited in Virginia newspapers by the death of George Washington or by that of any other person.<sup>12</sup>

Washington's imaginative, opportunistic biographer, Mason Locke Weems, seized upon news that had "quite galvanized" the "very young and tender hearted" in Charleston, South Carolina, as excuse enough for a discursive essay. That itinerant book-peddler described himself as "getting now to be a little oldish . . . , and daily, as becomes a stranger in Charleston, at this season, looking out for a squall of the same sort." Weems viewed with equanimity the fact that "death, by a touch of his old thresher, with equal ease, brings down a Chancellor or a cherry." He professed no grief over the death of the Virginian he portrayed as "[[Honest Lawyer|The Honest Lawyer]]." On the contrary, the effusive "Parson" enjoined joy "that this veteran of the law, after a life of glorious toil, to revive the golden age of justice on earth, was returned to the high courts of heaven-not

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<sup>9</sup> Raleigh, N. C., ''Minerva'', Jun. 16, 1806.

<sup>10</sup> Boston, Mass., ''Gazette'', Jun. 19, 1806, and ''Columbian Centinel'', Jun. 21, 1806.

<sup>11</sup> After the death of Wythe's second wife in 1787, William Munford (1775-1825) had lived in Wythe's home in Williamsburg and had been a special object of Wythe's generous attentions to youth. Grateful, Munford named his oldest child George Wythe Munford "after my old friend and benefactor the Chancellor." William Munford to his sister-in-law, Mrs. Mary R. Preston, Jan. 10, 1803, Munford- Ellis Papers, Duke University Library. Munford, his heart "torn with sorrow," then accepted the Council of State's assignment to preach the funeral oration, partly because "the ties of gratitude to that best of men, for the extraordinary kindness he ever manifested towards me, ought to prohibit my suffering him to go to his grave without an Eulogy." William Munford to Governor William H. Cabell, Jun. 8, 1806, Executive Papers, Virginia State Library. The funeral oration by Munford was printed in its entirety by two Richmond newspapers: Richmond ''Enquirer'', Jun. 13 and 17, 1806; Richmond ''Virginia Argus'', Jun. 17, 1806.

<sup>12</sup> See issues of the ''Enquirer'', the ''Impartial Observer'', the ''Virginia Argus'', and the ''Virginia Gazette, & General Advertiser'' during the first three or four weeks after Jun. 8, 1806. The author's comparison is based upon impressions rather than upon actual counts of the space allotted by Richmond editors to obituaries, eulogies, etc., for Wythe and for such other distinguished citizens as George Washington, who had died in 1799, and Edmund Pendleton, who had died in 1803.
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pale and trembling . . . , wet with widows' tears, and blood of murdered patriots, to meet the tear-avenging God; but bright in conscious integrity, with hands pure as the sweet palms which press the alabaster bottles of life, and in robes of innocence, snow-white as those that angels wear, to meet the smiles of the Judge Supreme, and the acclamations of brother saints innumerable."'<sup>13</sup>

Celebrants of the Fourth of July in 1806 drank toasts to the memory of George Wythe.<sup>14</sup> Restricted to severe brevity by that social form of tribute, those who gathered for the Fourth at Lexington, Kentucky, remembered Wythe simply as "a faithful labourer in the vineyard of the republic."<sup>15</sup> There the orator of the day was Henry Clay, who until his own death remained proud of the fact that he had been associated with Wythe's court during the 1790's. Indeed, young Clay had been the amanuensis who transcribed for publication the Chancellor's annotated decisions, confusingly peppered though they were with Greek phrases Clay had been able neither to understand nor to write well.<sup>16</sup> Saddened by the news that had plunged Richmond into mourning (news that had just reached Lexington), Clay made his address "short and impressive."<sup>17</sup>

The sense of revulsion felt throughout the country crossed party lines as well as state lines. A Federalist organ in the nation's largest city copied from the Richmond ''Enquirer'' two paragraphs of Republican editor Thomas Ritchie's shocked obituary. To those paragraphs it appended the Petersburg, Virginia, ''Republican's'' pointed comment: "It is generally believed, that this patriot, has been brought to the grave, by means, the 'most foul, base and unnatural,' and that the accused is to undergo an examination."<sup>18</sup> Even a modern interpreter of the Old Dominion cites the felony as the worst example of the cussedness—or something worse—

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<sup>13</sup> M. L. Weems, "[[Honest Lawyer|The Honest Lawyer: An Anecdote]]," Charleston, S. C., ''Times'', Jul. 1, 1806.

<sup>14</sup> [[Richmond Enquirer, 8 July 1806|Richmond ''Enquirer'', Jul. 8, 1806]].

<sup>15</sup> Lexington ''Kentucky Gazette'', Jul. 5, 1806.

<sup>16</sup> Henry Clay to B. B. Minor, May 3, 1851, printed in Benjamin Blake Minor, '[[Memoir of the Author]]," in George Wythe, ''Decisions of Cases in Virginia, by the High Court of Chancery, with Remarks upon Decrees, by the Court of Appeals, Reversing Some of Those Decisions'' (2d ed., B. B. Minor, ed., xxxii-xxxvi. Richmond, 1852), Hereafter cited as Wythe, ''Decisions''.

<sup>17</sup> Bernard Mayo, ''Henry Clay, Spokesman of the New West'' (Boston, 1937), 208-209.

<sup>18</sup> Philadelphia, Pa., ''Poulson's American Daily Advertiser'', Jun. 17, 1806. This newspaper attributed the remark to the Petersburg ''Republican'' of an unspecified date.
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that she attributes to Virginians.<sup>19</sup> The murder of George Wythe took at the time top or high rank among the state's most heinous crimes. It still does.

Inevitably, the revolting affair created quite a stir, for people ''will'' talk. Throughout the week before the prostrated Wythe's last breath set the bells of Richmond a-tolling, his death was a foregone conclusion. People marveled that a man of his age could so long survive the excruciating agonies of so insidious and lethal a poison. While Wythe still suffered, strong suspicion was aroused. Circumstances and tangible evidence converted suspicion into conviction at least seven days before the poison produced its ultimate effect upon the Chancellor's strong constitution.

The suspect was as undoubted as was the conclusion that Wythe was a victim of premeditated murder by means of arsenic. Invariably the slayer was identified as the venerable patriot's teen-aged grandnephew and namesake, George Wythe Swinney, an ingrate who had already proved himself unworthy of the home and education he had enjoyed for several years under the hip roof of the Chancellor's unpretentious cottage. Had not that young reprobate stolen books and money from his too-trusting benefactor? Had he not forged checks against his patron's bank account? And had it not been generally known, doubtless by Swinney himself, that he was the chief heir to Wythe's estate, a modest one but doubtless large enough to provide some relief to a culprit in financial difficulties? So, people said, he had placed his fatal dose in the breakfast coffee served in the unsuspecting household on Sunday morning, May 25. Immediately after that meal the good old judge and two freed Negroes had become critically ill. Lydia Broadnax, the Chancellor's faithful cook and servant, recovered. Michael Brown, the mulatto lad to whom Wythe had personally been giving a classical education—Greek and all—as a practical experiment in testing and developing the intelligence of Virginia's other race, had died on the next Sunday, June 1. The Chancellor himself lived in torment—and perhaps toward the end in a merciful coma—through a second week, but he died on the second Sunday morning, June 8. Fortunately, however, he did not expire before he had altered his will to disinherit the villainous Swinney.

Such is the traditional account of the death of Wythe—a paraphrase expanded to greater length than any known to have been written within the next two weeks, doubtless shorter than many conversational versions

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<sup>19</sup> Virginia Moore, ''Virginia Is a State of Mind'' (New York, 1943), 190-191.
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of the time, and certainly embodying the contemporary explanations of the timing, the method, and the motive of the murderer of Michael Brown and George Wythe.<sup>20</sup> This story of the baneful circumstances has persisted ever since 1806. In its retellings it has undergone normal embellishments and amendments. Developments not fully understood when they occurred gave the tale a poor foundation at the start. The recollections of its original narrators grew more and more subject to error with the passing years. Family traditions, transmitted orally, added details and supplied conversations that seem more logical than they are trustworthy. Fanciful emphases and interpretations have been born of assumptions, not of research.

The only substantial modification, however, has been a pronounced tendency to portray the poisoning of Wythe as an accident, while that of Michael Brown has remained the result of intentional murder. This alteration cannot be traced backward beyond 1850. It stems from two sources that were not independent of each other. One was the quite faulty memory of Dr. John Dove of Richmond, who claimed in 1856 that he had been "[[Memoranda Concerning the Death of Chancellor Wythe|present during the sickness & death of Judge Wythe]]." Dove alleged that the Chancellor had been ill before May 25, 1806, and that Swinney had not expected him to eat breakfast that Sunday morning where the poisoned coffee was to be served. The other source was Benjamin Blake Minor, editor of the ''Southern Literary Messenger'', who contributed a biographical sketch to the second edition of the Chancellor's ''Decisions'' (1852). Minor talked with Dr. Dove, who undoubtedly told him something to the effect that Swinney had "vowed vengeance" only against the mulatto boy; and

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<sup>20</sup> Evidently the earliest summaries of the circumstances now extant are in the reliable letters written by William DuVal to Thomas Jefferson on [[Jefferson-DuVal Correspondence#William DuVal to Thomas Jefferson.2C 4 June 1806|Jun. 4 and 8]], preserved in the Jefferson Papers, Library of Congress. Neither attributes to the poisonings a plain method or motive. The earliest written statement as to motivation and method is apparently to be found in the letter of Jun. 10, 1806, from William Wirt in Norfolk to James Monroe, Monroe Papers, vol. XI, no. 1373. That letter was written before Wirt had learned of Wythe's death. Internal evidence in Wirt's letter indicates that the allegations it relayed were based exclusively on information written on Jun. 5, in a letter that has not been found, by Governor William H. Cabell, his brother-in-law. A later account is in the brief, less specific recollection recorded by Littleton Waller Tazewell, who wrote that "it was generally believed" that Wythe's death "was produced by poison, administered in his coffee, by a reprobate boy, a relation of his who he had undertaken to educate, and who was afterwards convicted of having committed many forgeries of checks in his patrons name." "Sketches of his own family, written by Littleton Waller Tazewell, for the use of his children. Norfolk. Virginia. 1823" (MS. in the Virginia State Library), 121.
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Minor found what seemed to him to be sufficient substantiation in Wythe's will and two of its codicils, which made Swinney the residuary legatee of bequests to Michael Brown.<sup>21</sup> Until now the only serious analysis of the traditional account of Wythe's death and of the Dove-Minor misinterpretation has been that of Julian P. Boyd. His lucidly reasoned booklet on ''[[Murder of George Wythe|The Murder of George Wythe]]'' assayed them chiefly by the test of comparison with information found in seven previously unexploited letters written in 1806 to President Jefferson by Wythe's intimate friend and executor, William DuVal.<sup>22</sup>

But other and even better contemporary records are also extant, and it is good that the ''William and Mary Quarterly'' affords space in this issue both for them and Dr. Boyd's thoughtful interpretation, now relatively unavailable. Chief among these additional documents are official court records of the preliminary trials of George Wythe Swinney for forgery and murder. Like pirates' gold buried in a forgotten pit, they lay neglected through more than a century and a quarter despite recurrent curiosity about Wythe's tragic death. These legal records, discovered by the present writer a number of years ago and now published for the first time, contain precious nuggets of authentic information. They include digests of the sworn testimony of sixteen witnesses for the prosecution against Swinney. They add up to a convincing indictment of him. The discovery was made in the office of the Clerk of the Hustings Court of the City of Richmond,<sup>23</sup> where the documents lay within the

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<sup>21</sup> Both of the phrases quoted above are from Dr. Dove's recorded recollections, which are replete with provable errors and must be considered wholly suspect. "[[Memoranda Concerning the Death of Chancellor Wythe|Memoranda concerning the death of Chancellor Wythe]]—Signed in the Aut[o]-g[rap]h. of T[homas]. H. Wynne and rec'd by him from Dr. John Dove, Sept. 16, 1856," MS. in the Brock Collection, Henry E. Huntington Library and Art Gallery. Hereafter cited as Dove, "Memoranda." For evidence that John Dove, M.D., was a Richmond practitioner from about 1822 to about 1852, see Wyndham B. Blanton, ''Medicine in Virginia in the Nineteenth Century'' (Richmond, 1933), 48, 76, 91, 238, 240. For evidence that Dove influenced Minor directly, see Minor, "[[Memoir of the Author]]," in Wythe, ''Decisions'', xxvii.

<sup>22</sup> Julian P. Boyd, ''[[Murder of George Wythe|The Murder of George Wythe]]'' (Philadelphia, 1949).

<sup>23</sup> Binder's title "[[Hustings Court Order Book|Order Book No. 6, 1804-1806]]," 464-465, 482-488. Rough drafts of the records for these two cases of the Commonwealth v. Swinney—drafts identical to the final ones in every important respect—can be found in the same office in the volume given the binder's title of "[[Hustings Court Minutes|Minutes No. 3, 1802-1806]]" (MS. with pages not numbered) under dates of Jun. 2 and 23, 1806, respectively. Microfilm copies of both the Minute Book and the Order Book are available in the Virginia State Library. The final drafts of the two documents have been transcribed from the Order Book for publication below.
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domain of the very court to which the laws of Virginia prevailing in 1806 required that such an offender in Richmond as Swinney should be brought first for any trial of which an official record would have been kept. When Richmond had been incorporated in 1782, it was made a unit of local government. The General Assembly had provided by law for the annual election of twelve citizens to serve in their spare time as municipal officials. Half of them were to constitute a legislative Common Council. The remaining six—a mayor, a recorder, and four aldermen—were commanded "to hold a court of hustings" each month. Its jurisdiction in Richmond corresponded to that of a county court within county boundaries. Each of the judges of the Hustings Court had been vested with the powers of a justice of the peace, and they had been specifically assigned the duty "of examining criminals for all offences committed within the limits of the said corporation." If they found a defendant guilty of a serious crime, they were to refer him to a higher court for trial before professional judges and a jury.<sup>24</sup> These governmental and legal arrangements for the preservation of law and order had been modified only slightly in later statutes, but a law of 1803 had increased the membership of the Common Council to fifteen and that of the Hustings Court to nine, doubtless in recognition of Richmond's growth to a population of more than five thousand.<sup>25</sup> We shall find that not all of our questions are answered by these documents, but no searcher for the treasure-trove could reasonably have expected it to be so rich. Yet it multiplies by many times the amount of contemporary data at our disposal. It enables us to confirm some details reported unofficially at the time and to correct others. It supplies us with vivid portraits of a gloomy, wicked, and yet remorseful youth; of the last days of a questioning, then convinced, and ultimately forgiving victim; of the anxious solicitude and growing outrage of the latter's friends; and of their transition from innocent acceptance of his serious illness as a natural thing to mounting suspicion, relatively thorough investigation, and distressing proof of the poisoner's guilt. Coupled with our greater knowledge of toxicology and with other contemporary records not utilized

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<sup>24</sup> William Waller Hening, compiler, ''The Statutes at Large ... of Virginia . . .'' (Richmond, Philadelphia, New York, 1819-1823,) XI (Richmond, 1823), 45-51. Hereafter cited as Hening, ''Statutes''.

<sup>25</sup> ''Ibid.'', XII (Richmond, 1823), 407-408; Samuel Shepherd, compiler, ''The Statutes at Large of Virginia,. . . 1792, to . . . 1806 . . .'' (Richmond, 1835-1836), II, 93, 422-425, III, 73-75. Hereafter cited as Shepherd, ''Statutes''.
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by previous investigators, it affords us a surer understanding of the grim story of the unpunished forgeries and murders committed by George Wythe Swinney than was vouchsafed to any of the people who mourned the death of Chancellor Wythe and sought with decreasing fervor to do justice to the cause of it—a more reliable understanding, indeed, than any of our predecessors attained.

The official record of the examination of Swinney for alleged forgery reads as follows:

At a Court of Hustings called and held for the City of Richmond at the Courthouse, on Monday, the second day of June 1806, for the examination of George W. Swinney,<sup>26</sup> who stands accused of forgery.<sup>27</sup>

Present

Edward Carrington, Gentleman, Mayor,

Samuel Pleasants, Gentleman, Recorder,

Henry S. Shore, William Goodwin, Anderson Barret,

David Lambert and William Richardson, Gentlemen, Aldermen.

The prisoner was led to the bar in custody of the Sergeant of this City; whereupon sundry witnesses were sworn and examined, and the prisoner in his defence fully heard: On consideration whereof, the Court is of opinion that the prisoner is guilty of the offence aforesaid, and doth order that he undergo a trial therefor at the next District Court directed by law to be holden at the Capitol in this City: and it is further ordered that the said George W. Swinney be bound in a recognizance in the penalty of one thousand dollars, with suf-

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<sup>26</sup> George Wythe Swinney, whose surname occurs in contemporary records also in the form of various spellings of Sweeney, was a grandson of George Wythe's sister and hence a grandnephew of Wythe. For genealogical information concerning him and related Sweeneys see W. Edwin Hemphill, George Wythe the Colonial Briton: A Biographical Study of the Pre-Revolutionary Era (Doctoral Dissertation, University of Virginia, 1937), 40.

<sup>27</sup> Swinney had doubtless been accused of forgery as the result of a preliminary hearing before one or more of the municipal magistrates or justices of the peace, presumably within the last five days of the preceding week, May 27-31, as is indicated by the testimony of the first witness below. William Wirt enumerated a few other manifestations of dishonesty on Swinney's part that had been preludes to his climactic crime: "The young villain (only about 16 or 17) had been in the habit of robbing his uncle [i.e., his granduncle, George Wythe] with a false-key, had sold three trunks of his most valuable law-books, had forged his checks on the bank to a considerable amount, & wound up his villainies by this act [of murder]." William Wirt to James Monroe, Jun. 10, 1806, Monroe Papers, vol. XI, no. 1373.
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ficient security in a like penalty, for his personal appearance before the Judges of the said district Court, on the first day of the next term thereof, to answer the Commonwealth of the offence aforesaid; and failing to give the security required, he is remanded to jail until he shall give such security, or shall be otherwise discharged by the course of law.

William Dandridge (Teller of the Bank of Virginia) a witness on the foregoing examination, being sworn, deposeth and saith: That on Tuesday last [May 27], the prisoner produced to him at the bank of Virginia, a check thereon for the sum of one hundred dollars, drawn in the name of George Wythe esquire, which the deponent paid. That some time after, on examining the check, he suspected it to be a forged one, and he thereupon went to the prisoner and stated that he believed there was a mistake in said check; That the prisoner immediately produced the money and delivered the same to the deponent. That the prisoner frequently presented checks at the bank in the name of the said George Wythe; and the deponent verily believes that six checks now produced in Court were presented by the prisoner, and are all counterfeited.

Peter Tinsley,<sup>28</sup> another witness sworn on the said examination deposeth and saith: That he carried to George Wythe esquire seven checks drawn in his name on the bank of Virginia, who denied having drawn or signed more than one of them.

William Dandridge and Peter Tinsley here in Court acknowledge themselves indebted to his Excellency William H. Cabell governor or chief magistrate of the Commonwealth of Virginia, in the sum of one hundred pounds each, of their respective goods and chattels, lands and tenements, to be levied, and to the said governor and his successors, for the use of the said Common-wealth rendered: Yet upon this Condition, that if the said William Dandridge and Peter Tinsley shall severally make their personal appearance before the Judges of the District Court directed by law to be holden at the Capitol in this City, on the first day of the next term thereof, to give evidence on behalf of the Commonwealth against George W. Swinney, who stands accused of forgery, and shall not depart thence without the leave of the said Court, then this recognizance is to be void.<center>
(Minutes signed) E: Carrington Mayor<sup>29</sup>
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<sup>28</sup> Tinsley was for many years Clerk of the High Court of Chancery.

<sup>29</sup> One item of corrective evidence is brought out in this record. Unofficial reports of 1806, whenever they stated or implied a chronology for Swinney's crimes, invariably indicated that his forgeries and the discovery of them preceded his poisoning of Judge Wythe. On the contrary, Dandridge testified that Swinney was sus-
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The official record of the examination of Swinney on the charge of murder is a remarkably detailed one. Its unusual length doubtless reflects a common impression of the uncommon nature and circumstances of the alleged crime. The record reveals utter desperation on the part of an al-most deranged Swinney. It portrays the mounting growth of suspicion during illnesses that might have been provoked by merely natural causes. It embodies observations that link Swinney conclusively with ratsbane (white arsenic) and yellow arsenic. It records medical symptoms and measures that are not nice but seem necessary. And it indicates reserve on the part of three physicians when they gave under oath their professional judgments whether or not the death of George Wythe could be attributed to arsenic poisoning. This record is as follows:

At a Court of Hustings called and held for the City of Richmond at the Courthouse, on Monday, the 23d. day of June 1806, for the examination of George W. Swinney, who stands accused of murder.<sup>30</sup>
Present

The Same Justices as above.<sup>31</sup>

The prisoner was led to the bar in custody of the Sergeant of this City; where-upon sundry witnesses were sworn and examined, and the prisoner in his

<div style="font-size: 85%;">
pected for the first time of his forgeries after he had presented a sixth forged check at the bank on Tuesday, May 27. That Tuesday will be found to have been two or three days after Swinney had poisoned Wythe. On that Tuesday the Chancellor lay abed in the early stages of his mortal illness. That is one reason—and his charitable, compassionate nature may be another—for the fact that Wythe himself did not testify in court which of the seven checks "carried" to him by Tinsley he had not signed personally. Further details about the six forgeries will be revealed later in this article.

<sup>30</sup> The accusation against Swinney for the alleged murders of "Wythe & Michael Brown the Freed Boy" had resulted, in keeping with Virginia law, from a hearing held on Jun. 18 before Mayor Edward Carrington and two other magistrates or aldermen. On that occasion the examination of witnesses "lasted near Five Hours." The mayor and his two colleagues "were of Opinion that they, Mr. Wythe & Michael, were poisoned by Geo. W Sweeney." The suspect was ordered to be held in jail to await trial by the Hustings Court as a "Court of Examination" on Jun. 23. William DuVal to Thomas Jefferson, [[Jefferson-DuVal Correspondence#William DuVal to Thomas Jefferson.2C 19 June 1806|Jun. 19, 1806]], Jefferson Papers. Cf. Shepherd, ''Statutes'', III, 73-75.

<sup>31</sup> That is to say, the same six who had been present for the trials of earlier cases on Jun. 23: Mayor Edward Carrington, Recorder Samuel Pleasants, Jr., and Aldermen Henry S. Shore, Anderson Barret, David Lambert, and William Richardson. Aldermen William DuVal, William Goodwin, and Thomas Underwood did not sit as judges for this examination. DuVal attended as a witness.
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===Page 554===

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defence fully heard: On consideration whereof, the Court is of opinion that the prisoner is guilty of the offence aforesaid, and doth order that he undergo a trial therefor before the next District Court directed by law to be holden at the Capitol in this City: and thereupon the said George W. Swinney is remanded to jail.<sup>32</sup>

Tarlton Webb,<sup>33</sup> a witness for the Commonwealth on this examination, being sworn, deposeth and saith: That about a fortnight or three weeks be-fore the prisoner was committed to jail, he enquired of the deponent where he could procure any ratsbane? The deponent replied that it was against the law of the United States to have it. The day before the prisoner was apprehended,<sup>34</sup> he came to the house of the deponent's mother, and shewed the depon[en]t something wrapped in paper, which he said was Ratsbane, and in-formed the deponent that he intended to kill himself, and offered to give the deponent some if he wanted to die. The deponent being shown some drugs found in the jail and produced in Court by Mr. [William] Rose,<sup>35</sup> deposes that what the prisoner showed him was like that in Mr. Rose's possession, and that there was about one table spoonful. The prisoner stated to the deponent that he was very unhappy and something pressed upon his mind; but though applied to, would not disclose the cause of his uneasiness to the deponent.

William Rose,<sup>36</sup> another witness sworn on this examination, deposeth and

<div style="font-size: 85%;">
<sup>32</sup> The [[Virginia, June General Court, 1806|Richmond ''Enquirer'', Jun. 24, 1806]], printed the following announcement of the decision: "George W. Swinney was yesterday called before the examining court of this city, on the charge of poisoning his great Uncle, the venerable George Wythe, and a servant boy. He was unanimously remanded to jail for further trial before the district court to be had in September next." Although it was not particularly customary for crime news, especially courtroom news of this tentative sort, to be widely reprinted, this item reappeared in such representative newspapers as the Richmond [[Virginia Argus, 25 June 1806|''Virginia Argus'', Jun. 25, 1806]]; the Alexandria ''Virginia Gazette, & General Advertiser'', Jun. 25, 1806; the Washington, D. C., ''National Intelligencer, and Washington Advertiser'', Jun. 30, 1806, and ''Universal Gazette'', Jul. 3, 1806; the Augusta, Ga., ''Chronicle'', Jul. 12, 1806; and the Savannah, Ga., ''Columbian Museum & Savannah Advertiser'', Jul. 12, 1806, and ''Georgia Republican'', Jul. 15, 1806.

<sup>33</sup> This witness has not been identified positively. His testimony suggests that he was probably a youthful friend of Swinney.

<sup>34</sup> Swinney was arrested on Wednesday, May 28, or Thursday, May 29, according to testimony given in this examination by witness William DuVal, reproduced below. Webb's testimony here to the effect that Swinney told him on May 27 or May 28 that "something pressed upon his [Swinney's] mind" can be, therefore, a veiled reference by Swinney himself to worry and remorse because of the way he had used poison, with results that had not yet proved fatal, and possibly also because of the forgery committed and detected on Tuesday, May 27.

<sup>35</sup> For an identification of William Rose see the next paragraph and footnote 36.

<sup>36</sup> Rose was the public jailor of Richmond. Richmond ''Enquirer'', Jul. 8, 1817. Rose's
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===Page 555===

<blockquote>
saith: That his servant girl Pleasant, went into the garden about twelve o'clock the day after the prisoner was committed to jail and brought the paper this day produced [in court], the contents of which the deponent immediately knew to be arsenic. When the prisoner was committed to jail, the deponent did not search him; but about an hour and a half after, or thereabouts, hearing that it was probable he had pistols, he went into the jail and felt his pocket, and felt that there was a heavy substance wrapped in paper; but supposing that it might be coppers, or some few eighteen penny pieces, he did not take it out of his pocket. The prisoner had the use of the debtors room and the jail yard at his option. As soon [as] the arsenic was found the deponent suspected that Mr. Wythe was poisoned.

Samuel McCraw,<sup>37</sup> another witness sworn on the said examination, deposeth and saith; That being informed by Mr. Rose, that arsenic had been found in his garden, he proposed to have the servant carried into the garden to see the place where [the arsenic had been] found, to ascertain whether it was deposited there, or thrown from the jail yard. That at the place where the servant stated the arsenic to have been found, the deponent found two papers lying about eighteen inches apart: That the crude arsenic had penetrated a little into the earth, and there were two plants one a fennel, the other a beat [''sic''], broken off as he supposed by the throwing the arsenic over the jail wall: The deponent thinks it must have come from the jail yard. The beat [''sic''] that was wounded was next [i.e., nearer] the jail wall and was wounded considerably farther from the ground than the fennel. On the first of June, one week after Mr. Wythe's attack [began], the deponent was re-quested to go to attest [the final codicil to] Mr. Wythe's will. Mr. Wythe re-quested the prisoner's room and trunk to be searched. The deponent, with others, was conducted to the room where the prisoner lodged, opened the chest and found a port folio with a quire of blotting paper, which the deponent believes to be of the same kind with what was found wrapped round the arsenic found in the garden. In the prisoner's room on a writing table, the deponent found a paper on which were a half a dozen strawberries with the appearance of arsenic having been sprinkled over them. He found a phial with an appearance of having had a liquid, some of which adhered to the side of the phial, and on examination was believed to have been a mixture of testimony and that of the next witness make it plain that the former's residence and garden adjoined the jail.

<div style="font-size: 85%;">
testimony and that of the next witness make it plain that the former's residence and garden adjoined the jail.

<sup>37</sup> McCraw was one of the four witnesses who signed the final codicil to Wythe's will. Minor, "[[Memoir of the Author]]," in Wythe, ''Decisions'', xxxviii-xxxix.
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===Page 556===

<blockquote>
arsenic and sulphur. He also found two pieces of coarse brown paper, with something adhering to each, which was also declared to be arsenic and sulphur. The deponent frequently visited Mr. Wythe in his last illness and he appeared to be in very great agony from the first time to his death. Some time before the death of Mr. Wythe, while this deponent was sitting by him, Mr. Wythe exclaimed, cut me—the deponent supposed he wanted to have his flannel cut loose which the deponent accordingly did, but which gave apparent displeasure to Mr. Wythe, who then putting his hand to his throat and heart again called out, cut me, but could make no further explanation: this induced a belief in the deponent and those present that it was his wish to be opened after his death. The deponent never did hear Mr. Wythe express any suspicion of having been poisoned.

Fleming Russell<sup>38</sup> another witness sworn on the said examination deposeth and saith; That the day he received the warrant [for the arrest of Swinney] he went to Mr. Wythe's and found the prisoner: when he showed the prisoner the warrant and carried him to Major DuVal's & discovered he had no pistols, took his knife from him, and put his hand in his coat pocket, he felt very distinctly that he had two separate parcels of something wraped up in paper in his pocket but made no further search. After the prisoner was committed to jail, the deponent informed Mr. Rose, that the prisoner had some-thing else in his coat pocket and advised him to make a search, but did not go with Mr. Rose to make it.

Taylor Williams<sup>39</sup> a witness sworn on the said examination deposeth and saith; That about three weeks before the prisoner was apprehended, he mentioned something to the deponent about poison. The deponent informed him that copperas [i.e., crystallized ferrous sulphate] and water was poison. In about six or seven days after, the prisoner began a conversation with the deponent about poison: the deponent then told him ratsbane was poison, and that a gentleman of his acquaintance used it for the purpose of killing rats, and that [it] was to be bought in the shops, but does not recollect with certainty whether the prisoner asked him where it might be had.

Major William DuVal<sup>40</sup> another witness sworn on said examination de-

<div style="font-size: 85%;">
<sup>38</sup> This witness has not been identified. Judging from his testimony, he must have been a Richmond police officer.

<sup>39</sup> Williams appears from his testimony to have been a young friend of Swinney.

<sup>40</sup> William DuVal was of Huguenot descent, an officer during the Revolutionary War, an attorney, a member of the Virginia General Assembly, a magistrate of Richmond who had served as mayor during 1805-1806, and an intimate friend of Wythe, whose residence was also located in the square bounded by Grace, Sixth, Franklin,
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===Page 557===

<blockquote>
poseth and saith; that on the 25th day of May, he went to see Mr. Wythe, without knowing he was sick, and found him very ill[,] extended on his back. Mr. Wythe said he had not caught cold, that he was as well as usual in the morning, & eat his brea[k]fast as usual; but was immediately taken extremely ill, confined on his back except when forced up, which was upwards of forty times, and had fifteen large evacuations. After the prisoner was committed for the forgery he applied to the deponent by letter to be bailed. Mr. Wythe would have nothing to do with bailing [Swinney]. Mr. Wythe said he was taken ill on the twenty fifth day of May, about nine o'clock after having eat his break-fast; that on wednesday or thursday after, the prisoner was apprehended. Mr. Wythe requested that the prisoner's room and trunk might be searched, which request he repeated frequently, and finally on the first of June prevailed on Mr. McCraw and some other gentlemen who searched the room and trunk and found some papers with something adhereing to them which was declared by Doctor Greenhow<sup>41</sup> to be arsenic. The deponent saw the appearance of arsenic in an out house of Mr. Wythe's, in his yard, used as a shop; and [de-poseth] that some was also found in an old smoak house on a wheel barrow; which on being tried with a pin was proved to be arsenic. On thursday before Mr. Wythe's death he made an ejaculation and declared he was murdered in a low tone of voice. It was generally believed that Mr. Wythe had left the prisoner a great portion of his estate, and known that he had made some pro-vision for the mulatto boy, [Michael] Brown.

Samuel Greenhow<sup>42</sup> another witness sworn on said examination gave the same evidence upon the search of the prisoners room and trunk with McCraw.
and Fifth Streets. DuVal died in Buckingham County in 1842 at the age of 93. W. Asbury Christian, ''Richmond: Her Past and Present'' (Richmond, 1912), 57, 545; Richmond ''Enquirer'', Jan. 13, 1842, and May 13, 1842.

<div style="font-size: 85%;">
<sup>41</sup> The Greenhow to whom DuVal referred may have been the next witness, identified in footnote 42, who is known to have participated in the search of Swinney's room but is not known to have had any claim to the title of Doctor. Conceivably, on the other hand, this Doctor Greenhow may have been the Doctor James G. Greenhow who was living in Richmond in 1815. Blanton, ''Medicine in Virginia in the Nineteenth Century'', 246, 445, citing the Richmond ''Virginia Argus'', Mar. 1, 1815.

<sup>42</sup> Samuel Greenhow issued, as "Principal Agent," a call for the annual meeting in 1809 of the Mutual Assurance Society, the well-known, pioneer Virginia fire insurance company. Richmond ''Enquirer'', Dec. 24, 1808. With men like the Reverend John D. Blair, the Reverend John Buchanan, the Reverend John Holt Rice, and William Munford, Samuel Greenhow was a charter member of the Board of Managers of the Virginia Bible Society, which was organized in Jul., 1813. Christian, ''Richmond'', 87. Greenhow was one of the four witnesses who signed the final codicil to Wythe's will. Minor, "[[Memoir of the Author]]" in Wythe, ''Decisions'', xxxviii-xxxix.
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===Page 558===

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William Price<sup>43</sup> another witness sworn on said examination, gave the same evidence as McCraw and Greenhow on the subject of the search of the prisoner's room, and [substantiated the testimony] of McCraw on the subject of Mr. Wythe’s request to be cut. Mr. McCraw mentioned at that time that he supposed Mr. Wythe wanted to be cut open. Mr. Wythe appeared to be in great agony during his illness, and more particularly when moved.

Nelson Abbott<sup>44</sup> another witness sworn on said examination, deposeth and saith, that on saturday the 24th day of May last, he put an axe, now produced [in court], into a shop in Mr. Wythe’s yard, which he [Wythe] had lent him [Abbott] for a work shop; that on the 27th he went to Hanover and returned on friday the 30th when he discovered the arsenic in its present situation, and a hammer much stained with yellow, which has since been cleaned. The negroes in the shop said the prisoner had beat something they did not know what on the side of the ax with the hammer.

William Claiborne<sup>45</sup> another witness sworn on the said examination deposeth and saith: That he went to Mr. Wythe's the wednesday after his illness [began], who informed him that the Sunday preceding in the morning, he was as well as usual, immediately after breakfast he was taken with a colarimorbus [cholera morbus] and then a violent lax, went forty times that day, and had at least fifteen large evacuations: That on Saturday night he supped [i.e., on Saturday night, May 24, Wythe had supped] on milk and strawberries. Mr. Wythe said all the negroes [of his household] were taken [sick] at the same time. The deponent went into the kitchen and found most of them very ill. He then went to Major DuVal's, and expressed his opinion that the family were poisoned; and suspected the prisoner in consequence of his having been detected [on the previous day, May 27] in the forgery, as the death of Mr. Wythe before the detection could only prevent an alteration in his will which the deponent believed was much in favor of the prisoner. The deponent frequently told the prisoner that he would be well provided for by Mr. Wythe if he behaved well. After the death of the yellow boy [Michael Brown], the deponent was told by some of the negroes that arsenic was found in the outhouses. The deponent took some off the wheelbarrow in the old smoke house, applied fire to it and found from the smell that it was arsenic. The deponent asked Mr. Wythe whether the prisoner break-

<div style="font-size: 85%;">
<sup>43</sup> William Price was another of the witnesses to the final codicil to Wythe's will. Minor, "[[Memoir of the Author]]," in Wythe, ''Decisions'', xxxviii-xxxix.

<sup>44</sup> No information to identify this witness has been discovered.

<sup>45</sup> William Claiborne was the father of W. C. C. Claiborne, Governor of the Territory of Orleans. Richmond ''Enquirer'', Oct. 3, 1809.
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===Page 559===

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fasted with him the morning before he [Wythe] was taken [sick]. At first he did not answer. Afterwards he said he did not know, he [Swinney] was always called to his breakfast, but sometimes took no thing to eat or drink. Mr. Wythe observed he died in peace with all the world, and said he should leave directions for his executor to search the prisoner's trunk. This took place after the death of the boy Michael [on Sunday morning, June <sup>46</sup>], about sunset on the first of June.

[[wikipedia:Edmund Randolph|Edmund Randolph]],<sup>47</sup> being also sworn, deposeth and saith: That on Sunday the first of June about nine o'clock [A.M.], Major DuVal informed the deponent of the death of Michael from poison and [reported] Mr. Wythe as probably dying with the same. Mr. Wythe told the deponent he had supped on strawberries and milk the Saturday before he was taken ill. He wished his will to be altered so as to give to the prisoner's brothers and sisters what he had given him. The deponent made the alteration and then returned home, and afterwards went again to Mr. Wythe and informed him of the death of Michael Brown. The former codicil to the will was then destroyed and the present one made. On Wednesday the fourth of June, the deponent was in-formed by old Lydia [Broadnax] that more marks of poison had been discovered. The deponent went into the shop and saw Abbot's ax. The negro<sup>48</sup>

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<sup>46</sup> George Wythe said in the final codicil to his will, dated Jun. 1, 1806, that he had been told that Michael Brown had died that morning. Minor, "[[Memoir of the Author]]," in Wythe, ''Decisions'', xxxviii-xxxix. An almost contemporary letter also refers to Brown's death on Sunday morning, Jun. 1. William DuVal to Thomas Jefferson, [[Jefferson-DuVal Correspondence#William DuVal to Thomas Jefferson.2C 4 June 1806|Jun. 4, 1806]], Jefferson Papers.

<sup>47</sup> Edmund Randolph, the first Attorney General both of the Commonwealth of Virginia and of the United States, wrote and witnessed the final codicil to Wythe's will. See his testimony here given and Minor, "[[Memoir of the Author]]," in Wythe, ''Decisions'', xxxviii-xxxix. Randolph's career had overlapped Wythe's through the past thirty years—for example, in the Virginia conventions of 1776 and 1788. The first of the two codicils mentioned by Randolph in his testimony evidently devised to George Wythe Swinney's brothers and sisters only what Wythe had formerly bequeathed to Swinney. The second of the two codicils mentioned by Randolph devised to George Wythe Swinney's brothers and sisters everything that Wythe had formerly bequeathed both to Swinney and to Michael Brown. The will and its codicils dated Jan. 19 and Feb. 24, 1806, were proved in the General Court of Virginia on Jun. ii, 1806, by the oaths of Edmund Randolph and Peter Tinsley; and the final codicil, dated Jun. 1, 1806, was proved by the oaths of Samuel McCraw, William Price, and Edmund Randolph. For a printed copy of the will and its three validated codicils see Minor, ''ibid''. An attested manuscript copy is filed under Jun., 1806, in the Jefferson Papers.

<sup>48</sup> This reference to a certain Negro is not as precise as we might wish. Doubtless, however, Randolph talked on Jun. 4 with a Negro man employed in Nelson Abbott's workshop. Possibly this man was one of the same "negroes in the shop" who, according to Abbott's deposition, had told Abbott on May 30 that they did not
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===Page 560===

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was uncertain whether [it was on] the 24th or 26th of May, that the prisoner had caused the appearances [of poisons in the workshop]; but at last settled that it was on Saturday [May 24] when he found the prisoner in the shop, and one of the doors forced, and the prisoner was in the act of pounding some-thing on the axe. The prisoner asked him what it was? the negro replied he believed it was ratsbane. The prisoner then scraped it as clean as he could off the axe and folded it up in a piece of paper, wiping the axe with shavings. It was generally understood and believed that Mr. Wythe had left the bulk of his estate to the prisoner.

Doctor James McClurg,<sup>49</sup> another witness, being sworn, deposeth: That he was present at the opening of the body of Michael Brown. The lower part of the stomach was very much inflamed and had the appearance of the black vomit. The deponent went to visit Mr. Wythe on the day before the boy died and found him with a fever, his tongue very foul, had had no passage for twelve hours, and was free from pain. The appearance of the boy was such as arsenic might have produced; but such as might also have been produced by a great collection of bile. The deponent was also present at the opening the body of Mr. Wythe. The whole of his stomach and intestines had an uncommonly bloody appearance, that if produced by arsenic, in his [McClurg's] opinion, death would have ensued much sooner. Mr. Wythe had been frequently attacked with disordered bowells within three years last past.

Doctor James D. McCaw,<sup>50</sup> being also sworn, deposeth: That he was called ''know'' what substance Swinney had pounded into powder. In slight but not necessarily contradictory contrast, the Negro of whom Randolph testified simply ''believed'' on May 24 that the substance was ratsbane.

<div style="font-size: 85%;">
<sup>49</sup> Under the reorganization of the College of William and Mary instigated by Thomas Jefferson in 1779, James McClurg (1746-1823), Edinburgh-trained physician, had been one of Wythe's four colleagues in the faculty. For three years Dr. McClurg held the newly created chair of the professor of anatomy and medicine. Like Wythe, McClurg went to Philadelphia in 1787 to attend the convention from which emerged the Federal Constitution. McClurg was chosen to be Richmond's mayor in 1797, 1800, and 1803. For a quarter of a century he was one of the community's out-standing physicians. When the Medical Society of Virginia was organized in 1820, he was elected its first president. Although he was too infirm to take an active part in its affairs, he was re-elected in the next year. Blanton, ''Medicine in Virginia in the Nineteenth Century'', 13, 75-76; Christian, ''Richmond'', 545.

<sup>50</sup> James Drew McCaw, M.D., was one of the founders of the Medical Society of Virginia. His father, Dr. James McCaw, founded what might be called a Virginia medical dynasty destined to last five generations. Blanton, ''Medicine in Virginia in the Nineteenth Century'', 116-117, 261, 367. James D. McCaw's offer of 1802 to inoculate the poor of Richmond against smallpox had been accepted by the Common Hall or Council. Richmond ''Examiner'', Jun. 2, 1802. Judging by James D. McCaw's testi-
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===Page 561===

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to attend Mr Wythe on the 26th of May between four and five o'clock. He had been up with a violent puking & purging, and the deponent gave him an opiate, after which he got better, and was better until the discovery of the prisoner's forgery [on Tuesday, May 27], when he became worse and continued to grow worse. The deponent saw the boy [Michael Brown] on the day before his death, when he had a fever and complained of great pain. The deponent saw him opened after his death, and thinks that his death might have been occasioned by a great accumulation of bile.

Doctor William Foushee,<sup>51</sup> being sworn, deposeth: That he attended the opening of Mr Wythe's body in the presence of many other physicians.<sup>52</sup> The stomach was very much inflamed, and appeared as if a new inflamation was coming on. There was very little bile in the liver. The same appearance that his stomach and intestines exhibited might have been produced by arsenic, or any other acrid matter.

James McClurg, William Foushee, James D. McCaw, William Rose, Samuel McCraw, Fleming Russell, William Claiborne, William Price (Register) Nelson Abbott and Taylor Williams,<sup>53</sup> here in Court acknowledge themselves

<div style="font-size: 85%;">
mony, he seems to have been more nearly the family physician to the Wythe household than any of the other physicians whose names occur in records concerning the Chancellor's last illness. To be compared with the recorded testimony of Dr. McClurg and that of Dr. McCaw concerning the autopsy on the body of Michael
Brown is DuVal's letter to Jefferson: "As a Magistrate I requested four eminent Physicians to open the body of the Boy. They did so; from the inflamation on the Stomach & Bowels they said that it was the kind of Inflamation produced by Poison." William DuVal to Thomas Jefferson, [[Jefferson-DuVal Correspondence#William DuVal to Thomas Jefferson.2C 4 June 1806|Jun. 4, 1806]], Jefferson Papers.

<sup>51</sup> William Foushee, M.D., had been born in the Northern Neck in 1749. Like McClurg, he studied medicine in Edinburgh. He served as Richmond's first mayor, 1782-1783, as the town's postmaster for several years, and as the president of its Common Hall or town council for several years. He also served in both the legislative and executive branches of the state government. For many years he presided over the James River Company's internal navigation improvement projects. The General Assembly named him among the charter trustees of the Richmond Academy in 1802. Twenty years later the Medical Society of Virginia elected him its second president. When he died in 1824, he was almost seventy-five years old and was said to have been Richmond's oldest inhabitant. His death evoked an unusually detailed obituary. Christian, ''Richmond'', 57-58, 545; Blanton, ''Medicine in Virginia in the Nineteenth Century'', 75-76; Richmond ''Enquirer'', Aug. 24, 1824.

<sup>52</sup> DuVal reported to Jefferson that William Foushee, James D. McCaw, James McClurg, and two other physicians performed the autopsy on Wythe's body on the day of his death. DuVal stated simply that they found "considerable inflamation in the Stomach," but he added in the same context that it was "strongly suspected" that Wythe and Michael Brown had been poisoned with yellow arsenic by George Wythe Swinney. William DuVal to Thomas Jefferson, [[Jefferson-DuVal Correspondence#William DuVal to Thomas Jefferson.2C 8 June 1806|Jun. 8, 1806]], Jefferson Papers.

<sup>53</sup> It may be highly significant that four of the fourteen witnesses were not
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severally indebted to his Excellency William H. Cabell governor or chief magistrate of the Commonwealth of Virginia, in the sum of one hundred pounds each, of their respective goods and chattels, lands and tenements, to be levied, and to the said governor and his successors, for the use of the said Common- wealth rendered: Yet upon this Condition, that if the said James McClurg, William Foushee, James D. McCaw, William Rose, Samuel McCraw, Fleming Russell, William Claiborne, William Price (Register) Nelson Abbott and Taylor Williams, shall severally make their personal appearance before the Judges of the District Court directed by law to be holden at the Capitol in this City on the first day of the next term of that Court, to give evidence on behalf of the Commonwealth against George W. Swinney, who stands accused of murder, and shall not depart thence without the leave of the said Court, this recognizance is to be void.

(Minutes signed) E: Carrington, Mayor

The depositions of the sixteen witnesses in the two proceedings of June 2 and 23 make Swinney's motives for murder clearer than other contemporary records. Obviously, that troubled knave had tried to solve more than one of his problems at once. By a single desperate deed he might forestall discovery of his forgeries, prevent any resultant reduction or cancellation of the legacy he would receive from Wythe, and claim his inheritance prematurely.

But the second Hustings Court record does not enable us to determine with finality precisely when and how Swinney committed his acts of murder. None of the testimony links arsenic with the coffee served in Wythe's cottage, according to the traditional story of the poisonings, at breakfast on Sunday, May 25. To contrary import are the depositions of Claiborne, McCraw, and Randolph. Their assertions under oath indicate that Swinney had mixed some arsenic with strawberries and that Wythe ate strawberries for supper on Saturday, May 24. Wythe's breakfast coffee may have become the supposed vehicle for the poison on the invalid ground of reasoning of the ''post hoc, propter hoc'' type. Actually, so far as we can tell,

placed under bond to be available to serve as witnesses in the forthcoming trial of Swinney on the charge of murder before the District Court. The four who were exempted from such an obligation were William DuVal, Samuel Greenhow, Edmund Randolph, and Tarlton Webb. While in some respects their testimony before the Hustings Court merely confirmed that of other witnesses, in these respects, and more especially in reference to other observations concerning which others did not testify, the evidence submitted by these four could not be omitted without weakening the case against Swinney.

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he may have consumed poisoned foods at both meals. A fatal dose of arsenic usually produces acute symptoms within about an hour after it enters the human stomach, and death usually follows within one to three days. Wythe's case was not a typical one in the latter respect, and we have scant cause to assume that it was a normal one in the former respect. Fatal dosages of arsenic have been known in rare instances to cause no symptom for as many as twelve hours, particularly if the poison was ad- ministered in solid rather than liquid form and if a full meal was consumed with it; and death has been known to result as much as two weeks after the appearance of symptoms, as it did in Wythe's case. An inexperienced, experimenting Swinney may have underestimated on May 24 the amount of arsenic required to accomplish his premeditated purpose. He may have awaked the next morning to find that his attempt of the previous afternoon or evening had failed. He may then have added a second and larger quantity of arsenic to the breakfast menu. Neither this nor any alternative possibility can be proved conclusively from the available evidence.

More important than questions about details of that sort is the official record's revelation of the limited, inconclusive nature of the physicians' findings in the two autopsies. They did not exhaust every means known to the medical scientists and chemists of their generation to determine whether or not the deaths of Michael Brown and George Wythe had been unnatural ones. One authoritative treatise, for example, published in 1832 but embodying comparatively little that had been learned since 1806, devoted fully a hundred pages to its discussion of arsenic poisoning, forty of them to various definitive tests by which the presence of arsenic can be determined. Its author commented on the ease with which that almost tasteless and odorless chemical element could be procured in various forms and compounds and could be administered surreptitiously. Then he added,

"It is fortunate, therefore, that there are few substances in nature, and perhaps hardly any other poison, whose presence can be detected in such minute quantities and with so great certainty."<sup>54</sup> The inflamed tissues observed by the Richmond doctors were ambiguous. The same kind of examination today would do little more, if any, to pin down positively the cause of such deaths, for gastrointestinal inflammations of quite similar

<div style="font-size: 85%;">
<sup>54</sup> Robert Christison, ''A Treatise on Poisons, in Relation to Medical Jurisprudence, Physiology, and the Practice of Physic'' (2d ed., Edinburgh, 1832), 223. This volume's treatment of arsenic poisoning covers pp. 223-324.
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appearance can result from any of several distinct causes, both natural and unnatural. The Richmond physicians' post-mortem inspections should not have ended short of a few simple laboratory procedures. Standard analyses of that kind would almost certainly have proved beyond question whether or not arsenic had ended the lives of the youthful Michael Brown and the aged George Wythe.

The above testimony in both of the suits of the Commonwealth ''v.'' Swinney confirms an undisputed conclusion reached by all who have ever studied the matter: Wythe himself became fully convinced on his death- bed that Swinney was a forger and a murderer. Yet, in fact, that young man escaped legal punishment for both offenses. His road to freedom was, however, a tortuous one. Sometime during the summer of 1806 the charges against him were referred to a grand jury. It returned true bills. Thus it became the third judicial body to render a verdict of guilt against Swinney on each accusation, for the same conclusion had already been reached on each count by one or more of Richmond's magistrates and by the Hustings Court. Specifically, the grand jury cleared the way for the trial of Swinney by the District Court on each of six distinct indictments—one for the murder of Wythe, another for that of Michael Brown, and four for forgeries of Wythe's name on as many checks.<sup>55</sup>

On September 2, 1806, the District Court proceeded to tackle what the [[Respectfully Dedicated to the Legislature of Virginia|Richmond ''Enquirer'']] termed "the celebrated trial of George W. Sweeney, on the charge of administering arsenic to his great Uncle the venerable George Wythe." Judges Joseph Prentis and John Tyler, Sr., whose son of the same name was destined to become the tenth President of the United States, were the two members of Virginia's General Court assigned to preside over this session in the Richmond district.<sup>56</sup> Presumably, the two judges' judicial robes hid the mourning bands of crape that they and other members of the General Court had resolved to wear on their left arms for three months in tribute to the jurist Virginia had lost.<sup>57</sup> At the

<div style="font-size: 85%;">
<sup>55</sup> There is no record of any decision in regard to the other two checks that William Dandridge and Peter Tinsley had testified were, in the opinions of Dandridge and Wythe, also forged.

<sup>56</sup> [[Richmond Enquirer, 9 September 1806|Richmond ''Enquirer'', Sept. 9, 1806]].

<sup>57</sup> Ibid., Jun. 24, 1806; [[Virginia Argus, 17 June 1806|Richmond ''Virginia Argus'', Jun. 17, 1806]]; Richmond ''Impartial Observer'', Jun. 21, 1806. The Governor and Council had resolved on Jun. 14, "in honour of the deceased," to wear black bands similarly for one month as an "outward Sign of respect to his memory." Journals of the Council of Virginia (MSS. in the Virginia State Library), XXVII, 448. When the Virginia General Assembly convened in Dec., 1806, its members also resolved unanimously to "wear a badge of
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prosecuting attorney's table sat Philip Norborne Nicholas,<sup>58</sup> the popular young Attorney General of Virginia and successful leader in recent years of the Jeffersonian Republican party in the state. Nicholas had known Wythe while the Chancellor had still resided in Williamsburg. More recently they had been associated in various legal and political activities. Presumably, Nicholas had every reason to prosecute the case with all the vigor at his command.

But the shocked, incensed atmosphere of June had doubtless grown calmer by September, and impressive talents had been aligned on Swinney's side as counsel for the defense.<sup>59</sup> One of these lawyers was the same Edmund Randolph who had written the codicil disinheriting Swinney, the same Randolph who had given damaging testimony against him in the Hustings Court. The other lawyer at Swinney's side was the same William Wirt who had expressed a hope that no attorney would be found to defend him, so that he would be left to suffer the fate he deserved.

Wirt had been contemplating at the beginning of the summer a desire to move from Norfolk to Richmond, for his wife found Norfolk's summers unbearable. He had concluded at that distance within a month after Wythe's death that Swinney could conceivably be innocent of murder. Judge William Nelson of the General Court had told him that "there was a difference of opinion" among Richmond doctors as to the cause of the Chancellor's death and that "the eminent McClurg, amongst others, had pronounced that his death was caused simply by bile and not by poison." Then a brother of Swinney's distressed mother had traveled eastward to implore Wirt to serve as an attorney for the defense.<sup>60</sup>

Although Wirt had already decided before that visit that "it would not be so horrible a thing to defend" Swinney "as, at first, I had thought it," the plea made by his uncle posed a problem of conscience and of reputation. By letter Wirt asked his wife, "What shall I do?" And then he proceeded to influence her decision. "If there is no moral or professional impropriety in it, I know that it might be done in a manner which would avert the displeasure of every one from me, and give me a splendid ''debut'' in the metropolis. Judge Nelson says I ought not to hesitate a moment

<div style="font-size: 85%;">
mourning" for one month. Washington, D.C., [[National Intelligencer, 15 December 1806|''National Intelligencer, and Washington Advertiser'', Dec. 15, 1806]].

<sup>59</sup> ''Ibid.''

<sup>60</sup> William Wirt to his wife, Jul. 13, 1806, Kennedy, ''William Wirt'', I, 152-153.
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<blockquote>
to do it; that no one can justly censure me for it; and, for his own part, he thinks it highly proper that the young man should be defended. Being himself a relation of Judge Wythe's, and having the most delicate sense of propriety, I am disposed to confide very much in his opinion."'

The issue was settled within ten days. Nelson reiterated his opinion as to "the perfect propriety of the step." Mrs. Wirt evidently protested that her husband need not fear that she would suffer reproach. "I shall defend young Swinney under your counsel," he wrote her. "My conscience is perfectly clear, from the accounts I hear of the conflicting evidence."<sup>62</sup>

Records of the District Court, in which Randolph and Wirt undertook to save the life of George Wythe Swinney, are not extant; apparently they did not survive the fire that accompanied the Confederate evacuation of Richmond in April, 1865. Only from other sources can we learn whether or not the defense attorneys achieved their goal. The Richmond ''Enquirer'' reported succinctly the results of what was probably a day replete with courtroom drama and legal technicalities. "After an able and eloquent discussion" by counsel for the Commonwealth and for Swinney, read that newspaper's summary, "the jury retired, and in a few minutes, brought in the verdict of ''not guilty''. A similar indictment against him [Swinney] for the poisoning of Michael, a mulatto boy (who lived with Mr. Wythe) was quashed without a trial."<sup>63</sup>

There could have been no doubt whatsoever that Virginia's laws of 1806 defined murder by poisoning, if it were committed by a free person, to be murder of the first degree, punishable by death.<sup>64</sup>Some other ex- planation of the jury's astonishing verdict must be sought. Editor Thomas Ritchie offered his readers one hint why Randolph and Wirt had been able to win a quick decision in favor of their despised client. Some of the "strongest testimony" that had been heard by the Hustings Court and by the grand jury, Ritchie remarked, "was kept back from the petit jury" in the District Court. "The reason is, that it was gleaned from the evidence of negroes, which is not permitted by our laws to go against a white

<div style="font-size: 85%;">
<sup>61</sup> ''Ibid''. Nelson's distant kinship to Wythe was evidently through the second Mrs. Wythe, who had been a Taliaferro. See a copy of the will of Rebecca Cocke Taliaferro of "Powhatan," James City County, Nov. 12, 1810, in the possession of Colonial Williamsburg.

<sup>62</sup> William Wirt to his wife, Jul. 23, 1806, Kennedy, ''[[Life of William Wirt#Page 154|William Wirt]]'', 1, 154.

<sup>63</sup> [[Richmond Enquirer, 9 September 1806|Richmond ''Enquirer'', Sept. 9, 1806]].

<sup>64</sup> the enactments of 1796 and 1803, Shepherd, ''Statutes'', II, 5-14 and 405-406, respectively.
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man."<sup>65</sup> Actually, the reason assigned by the editor would have been more nearly true if he had phrased it more carefully. As far back as 1732 and as recently as 1801 the statutes of Virginia had stipulated that a Negro or a mulatto could be qualified as a witness only in a lawsuit brought against a Negro or a mulatto or by the commonwealth for one.<sup>66</sup> That is why Lydia Broadnax had not told the Hustings Court in June whatever she knew about the involvement of George Wythe Swinney in the deaths of Michael Brown and George Wythe.

The legal disability of Negroes to testify against Swinney had loomed large in people's thinking about the prospective trials of that ingrate for murder ever since Michael had died. Even before William Wirt learned with certainty that Wythe had also been a victim, Wirt had realized that one law might prevent the fulfillment of justice under another. "The chain of circumstances fix the guilt of Sweney beyond reach of doubt," Wirt had then been willing to assert, "but some of those circumstances, material to his conviction in a court of law, depend, it seems, on black persons, & so he will escape for the poison[ings]. he is under prosecution for the forgery & of that must be convicted."<sup>67</sup>

One logical question is answered neither by Ritchie's explanation nor by Wirt's prophecy. Why was any of the evidence that had been admissible in the three previous proceedings—evidence that had resulted in three verdicts of guilt—not presented in the District Court? No record answers that question. Possibly the District Court refused to hear some of the testimony that had been given before the Hustings Court. Evidence given by the white witnesses in June concerning what Negroes had ob-

<div style="font-size: 85%;">
<sup>65</sup> [[Richmond Enquirer, 9 September 1806|Richmond ''Enquirer'', Sept. 9, 1806]].

<sup>66</sup> The exact words of the law of 1801 were: "Any negro or mulatto, bond or free, shall be a good witness in pleas of the commonwealth for or against negroes or mulattoes, bond or free, or in civil pleas where free negroes or mulattoes shall alone be parties." Shepherd, ''Statutes'', II, 300. The statute of 1785 was to the same effect, although its provisions were couched in negative terms and omitted the words "bond" and "free" in each of the five instances of their use in the enactment of 1806. Hening, ''Statutes'', XII (Richmond, 1823), 182-183. Digests of the 1732 and 1748 statutes and of related legislation can be found conveniently in June Purcell Guild, ''Black Laws of Virginia: A Summary of the Legislative Acts of Virginia concerning Negroes from Earliest Times to the Present'' (Richmond, 1936), 154-155.

<sup>67</sup> William Wirt to James Monroe, Jun. 10, 1806, Monroe Papers, vol. XI, no. 1373. Internal evidence in this letter indicates that for the facts he stated Wirt was indebted to a communication written on Jun. 5, 1806, by his brother-in-law, Governor Cabell, and the prophecies Wirt voiced may also have reflected the Governor's thinking as of that date.
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served and had told them may have been ruled inadmissible by Judges Prentis and Tyler because of its Negro source or its hearsay nature. On the other hand, we have no proof acceptable by the ordinary standards of historical criticism that Swinney was acquitted because of the repression of the testimony Lydia Broadnax or other Negroes might have given but for Virginia's laws. Ritchie's allegation about the withholding of testimony "gleaned from the evidence of negroes" remains unsubstantiated, and Wirt's prophecy can be considered to have been merely a recognition of the flimsiness of the circumstantial evidence others would be able to give.

The simple fact remains that no known witness was able to assert in any of the four proceedings that he had actually seen Swinney put poison into food eaten by Michael Brown or by George Wythe. Moreover, no physician is known to have been willing to swear that either of the two autopsies proved that death had been caused by a poison. In other words, the evidence against Swinney was purely circumstantial.

Thomas Ritchie himself had not been hysterical in his attitude toward Swinney during the first days of resentment following the news of the Chancellor's death. The editor had remembered, sanely and circum- spectly, that the accusations against Swinney had not then been proved and that, until and unless they were, he should be presumed innocent. "Every situation in life has its rights and its duties," Ritchie had cautioned his readers. "Let us therefore respect the rights of the accused."<sup>68</sup> If Swinney's two lawyers took advantage in the District Court of every legal technicality to protect their client's rights, Ritchie should have been among the last to imply any criticism of them, for they had placed themselves under obligation to do so.

In any case, George Wythe was dead. Another man's life was at stake. It is the very genius of the legal system Wythe had received from his forefathers and had himself helped to develop and to refine that this second life should not be taken lightly. Since we do not know in detail what transpired in that Richmond courtroom on September 2, 1806, we are left in the position of being forced to accept at face value the jury's final decision, which was that Swinney had not been proved beyond reasonable doubt to have murdered George Wythe and that he was therefore ''not guilty''. Similarly, we must accept the opinion of Attorney General Nicholas that it would have been useless to try to prove beyond reasonable doubt that Swinney had murdered Michael Brown.

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<sup>68</sup> [[Richmond Enquirer, 10 June 1806|Richmond ''Enquirer'', Jun. 10, 1806]].
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Nevertheless, we can record the fact that those jurymen are the only persons known to have expressed at any time in or since 1806 an opinion that Swinney was not a murderer. William Wirt had concluded that Swinney could conceivably be innocent of the charge, but Wirt left no record now extant that he actually believed Swinney to be the victim of an unjust accusation. The common impression throughout the summer of 1806 was that Swinney had committed two premeditated murders. That opinion has remained unchanged to this day.

George Wythe Swinney had escaped death by hanging. It remained to be seen whether or not he would become permanently branded a convicted forger. Within another twenty-four hours he received a tentative answer to this second question. On Thursday, September 3, 1806, he was adjudged guilty on two of the forgery indictments.<sup>69</sup> But these verdicts were not allowed to stand unquestioned. Within ten days William Wirt pleaded successfully, "in an eloquent and ingenious speech" addressed to Judges Prentis and Tyler of the District Court, for arrest of judgment. Wirt's objections were considered acceptable by the two judges and were referred to the next session of the General Court for approval or rejection.<sup>70</sup> Wirt had changed his mind since his assertion in June that Swinney would doubtless be convicted of the forgery charges.

Someone else had come earlier than Wirt to the conclusion that the laws of Virginia would not justify inflicting punishment on Swinney for having obtained certain things of value at the state's bank by using forged signatures. Indeed, former Governor Page had decided in June that what Swinney had done at the Bank of Virginia was a crime only against God, not against any law of the Commonwealth of Virginia. "As to this young Man's Forgeries," Page had commented in highly moralistic vein but with a practical twist, "when religion is out of the way, I can see nothing in our law, that could restrain him, or any one else from a free exercise of that lucrative Employment. But for a sense of religion, I myself could not have done a better act for the Benefit of my Wife & Children, than to have . . . died . .. consoled with the pleasing reflection that I had handsomely provided for my Family, in a way permitted, nay chalked out by our Laws." <sup>71</sup>

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<sup>69</sup> [[Richmond Enquirer, 9 September 1806|''Ibid.'', Sept. 9, 1806]].

<sup>70</sup> Richmond ''Virginia Gazette, & General Advertiser'', Sept. 13, 1806.

<sup>71</sup> Page's letter continued: "I could, if under no religious impressions, tell my Wife & Children, that no one would think the worse of them for what I had done; and indeed that they would always be respected in proportion to their riches, and
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Could it be true, as Page thought he perceived, that Swinney had violated no law by his use of counterfeited signatures of George Wythe? Almost entirely so, declared the General Court in two quite technical opinions on November 17, 1806, with Judges Francis T. Brooke, Paul Carrington, Jr., Hugh Holmes, Archibald Stuart, John Tyler, Sr., and Robert White on the bench. They learned that the District Court's jury had convicted Swinney on an indictment for having obtained from the Bank of Virginia on May 27, 1806, a ''banknote'' for $100. In order to do so, he had presented to William Dandridge both a counterfeited letter and a forged check purporting to have been written and signed by Wythe. But the judges also heard that the arrest of judgment had been awarded on the ground that the forgeries of which Swinney had been accused did not actually constitute offences against a Virginia statute enacted in 1789, which was the only law the forgery indictments against him had contrived to mention.<sup>72</sup>

For one thing, William Wirt had argued that the 1789 law "was intended to punish a pre-existing evil" and could not possibly have reference to any bank, since no bank was established in Virginia until "many years" later. In the second place, Wirt contended that the law's phraseology, as well as its date, precluded any possibility of its being applied to the Bank of Virginia. The statute made illegal any deceitful deed, bill of sale, or other such document that would result in the robbery of one or more "private individuals." The bank could not properly be considered a

<div style="font-size: 85%;">
that both I and they would have been despised had I left them poor—that therefore the riches I had acquired for them would secure them respect in this World, and that as to any other, they need not trouble themselves about it—that they ought to enjoy their hearts desire in all things, and say 'let us eat & drink for tomorrow we die.' . . . But believing as I do in a divine revelation, I had rather perish with my Wife & Children through absolute Want, than that any one of us, should do one unjust or dishonest Act." John Page to St. George Tucker, Jun. 29, 1806, Tucker- Coleman Papers.

<sup>72</sup> The law that Swinney was alleged by the indictment to have broken had been adopted on Nov. 18, 1789. It was entitled "An act against those who counterfeit letters or privy tokens, to receive money or goods in other men's names." It provided that "if any person or persons, shall falsely and deceitfully obtain or get into his or their hands or possession, any money, goods or chattels of any other person or persons, by colour and means of any such false token or counterfeit letter, made in any other man's name as is aforesaid; every such person and persons so offending, and being thereof lawfully convicted in the court of the district, in which such offence shall have been committed," shall be subject to a maximum term of one year in prison and to "setting upon the pillory." Hening, ''Statutes'', XIII (Philadelphia, 1823), 22.
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"person or persons" within the meaning of the law. It was "a body corporate, an ideal body," and "no more a person, than the commonwealth of Virginia." Anything, therefore, that Swinney had obtained from the bank could not have been procured in violation of a law that made punishable the getting by false means of "any money, goods or chattels of any other person or persons." And in the third place, Wirt argued, what Swinney had received was not part of "the money or goods of the said George Wythe, because having been delivered under a check not drawn by him, the bank hath no right to charge it to his account."

In connection with the ''banknote'' in question under the first indictment, the General Court found Wirt's claims convincing enough. Its judges concluded that they should grant a permanent arrest of judgment. Thus they reversed the petit jury's verdict that Swinney was guilty; thus they pronounced him innocent of the crime alleged to have occurred on May 27. While Wythe lay on his deathbed that Tuesday, Swinney had perpetrated a forgery, but it was not an unlawful forgery.

The other indictment under which the District Court had found Swinney guilty of a violation of the same statute was quite similar to the first. The second differed in only one significant particular. It involved $50 that Swinney had obtained from the bank by the same means on April 11, 1806, in the form of ''currency''. Wirt's appeal in the District Court for an arrest of judgment had been won on the same three grounds, and they were pleaded anew as sufficient cause for making the temporary ban against sentence upon Swinney a permanent one.

In this instance the General Court did not agree. It refused to accept Wirt's argument that the "''money current''" Swinney had gotten at the bank in April could not properly be charged against the account of Wythe, by virtue of the forged check, and was therefore not Wythe's money until Swinney had acquired possession of it falsely. Evidently, Virginia's supreme tribunal for criminal law decided that neither of Wirt's first two points was valid in respect to either indictment and that the validity of Wirt's third contention depended entirely upon the natures of the two kinds of property the forger had received. In other words, the six judges' two decisions meant, essentially, that the promissory ''banknote'' Swinney obtained on May 27 had not been Wythe's "money, goods or chattels" but that the ''currency'' involved in the similar transaction of April 11 had been. If this distinction seems subtle, thin, and flimsy, it appears to have been not more so than whatever reasoning persuaded the judges to ignore
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Wirt's assertions that the 1789 law was not at all pertinent to the later means of "getting something for nothing" upon which an unconsciously clever forger had stumbled. The chagrined John Page, who had been Governor of Virginia when the state bank was established, had believed on June, 1806, that none of Swinney's forgeries was illegal. Page had been much disconcerted by his discovery that the commonwealth had not foreseen and had not prohibited such misuses of another's signature. The General Court, on the other hand, professed to believe that one of Swinney's forgeries had inadvertently violated a law more than fifteen years old and obviously designed to curb other frauds wrought by means if forgery. Consequently, the court decreed that punishment should be imposed upon Swinney under the second indictment by the District Court.<sup>73</sup>

Nevertheless, according to a report derived from official records that are not now extant, the District Court did not execute its sentence, which was that Swinney should spend one hour in the pillory at Richmond's public market and six months in prison. Contrary to the General Court's decree and for reasons inexplicable today, the District Court is said to have granted Swinney a second trial on the indictment the higher court had upheld, and then the attorney for the commonwealth declined to prosecute the case.<sup>74</sup>

Thus freed, technically at least, of all charges against him, but with a reputation he would never be able to live down locally, the "unfortunate" Swinney "then sought refuge in the West, where his career was brought to a premature and miserable close."<sup>75</sup> So reads one account, written about the middle of the nineteenth century, of the end of the life of

<div style="font-size: 85%;">
<sup>73</sup> William Brockenbrough and Hugh Holmes, ''[[Commonwealth against George Wythe Swinney|Collection of Cases Decided by the General Court of Virginia, Chiefly Relating to the Penal Laws of the Commonwealth, Commencing in the Year 1789 and Ending in 1814, Copied from the Records of Said Court, with Explanatory Notes]]'' (Philadelphia, 1815), 146-151.

<sup>74</sup> Minor, "[[Memoir of the Author]]," in Wythe, ''Decisions'', xxviii. In a footnote on that page Minor asserted: "The records of these proceedings [in the District Court after the return to it of the decree of the General Court in the last of tie suits of the Commonwealth v. Swinney] have been consulted in the office of tie Superior Court of Law for Henrico County." Minor wrote those words in or before 1852. Presumably, reorganizations of Virginia's judicial system between 1806 and 1852 account for the fact that records of the District Court in Richmond for its Apr., 1807, term (the first session it was scheduled to have after the Nov., 186, term of the General Court) had come by 1852 into the custody of the Superior Court of Law for Henrico County. The fire in Richmond during April 2-3, 1865, apparently explains their disappearance.

<sup>75</sup> ''Ibid''.
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the young man to whom George Wythe had been "kinder than a Father."<sup>76</sup> According to the memory of another Richmonder fifty years after George Wythe Swinney had been a defendant in the capital's courtrooms, Swinney went to Tennessee, stole a horse, served a term in a penitentiary, and was "then lost sight of."<sup>77</sup> The forgeries that preceded and led directly to the death of George Wythe may not have been plainly and provably crimes against the Commonwealth of Virginia. But they served one useful purpose, for they pointed out a glaring loophole in Virginia's laws. The state acted promptly to plug that gap. On the last day of the same year the General Assembly adopted and put into immediate effect "An ACT to punish certain thefts and forgeries." That law clearly defined as a crime every deed by which any person should "fraudulently obtain, or aid or assist in obtaining from the Bank of Virginia, or any of its offices of discount and deposit, any bank or post note, or money, by means of any forged or counterfeit check or order whatsoever, knowing the same to be forged or counterfeited." Violators of the new statute, when they were properly found guilty in court, were to be imprisoned for "not less than two, nor more than ten years."<sup>78</sup>

In the final analysis, we may guess, George Wythe Swinney escaped death on the gallows because of three considerations. One of these seems to be the forgiveness Wythe himself gave him. That could not alter one whit Swinney's legal liability to pay the penalty for murder, but it may have influenced, both consciously and unconsciously, the men who prosecuted and defended Swinney, those who testified, the judges who decided what evidence was admissible, and the twelve "good men and true" who retired to a jury room in the September trial. A second determining factor probably was the failure of the physicians to perform complete autopsies and thus to be prepared to assert unequivocally on the witness stand that, in their professional judgments, the deaths of Michael Brown and George Wythe had been caused by arsenic poisoning. Such testimony would have become, quite possibly, the "clincher" that would have strengthened the

<div style="font-size: 85%;">
<sup>76</sup> William DuVal to Thomas Jefferson, [[Jefferson-DuVal Correspondence#William DuVal to Thomas Jefferson.2C 4 June 1806|Jun. 4, 1806]], Jefferson Papers.

<sup>77</sup> Dove, "[[Memorandum Concerning the Death of George Wythe|Memoranda Concerning the Death of Chancellor Wythe]]." Although Minor accepted Dr. Dove's recollections they are so untrustworthy in matters that can be checked that the unsubstantiated statements concerning Swinney's life after he escaped the clutches of the law in Richmond made by both Dove and Minor must be considered traditionary rather than supported by valid evidence.

<sup>78</sup> Shepherd, ''Statutes'', III, 289.
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web of circumstantial evidence against Swinney enough to put a knotted rope around his neck. A third presumed factor was inherent in Anglo-American jurisprudence. The doctors and other Virginians who participated as witnesses, attorneys, jurymen, and judges in Swinney's final trial for murder were honorable men. They cleared him of the accusation because, evidently, they thought it important to save the life of a young man who ''might'' be innocent, although he certainly seemed not to be. George Wythe himself would doubtless have had the same respect for the legal principle of a reasonable doubt.

Did Virginia justice suffer a miscarriage in 1806? For want of complete records, we cannot properly lift our second-guessing voices to cry that it went wrong. But we can agree heartily with the opinion held by Wythe himself and never relinquished by most of his sympathetic but straightforward contemporaries—the belief that, by every standard other than the technical ones of the law, Swinney had assuredly done serious wrongs. Like Wythe's survivors, we can only take comfort in the fact that Virginia justice may have avoided adding another wrong to Swinney's and in the fact that his chief victim, Chancellor Wythe himself, the "Virginia Socrates" and the "American Aristides," had achieved on his deathbed, by revoking his generous bequests to Swinney, one final act of obvious equity.
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==See also==

*[[Commonwealth against George Wythe Swinney]]
*[[Honest Lawyer]]
*[[Hustings Court Minutes]]
*[[Hustings Court Order Book]]
*[[Jefferson-DuVal Correspondence]]
*[[Life of William Wirt]]
*[[Memoir of the Author]]
*[[Memoranda Concerning the Death of Chancellor Wythe]]
*[[Murder of George Wythe]]
*[[National Intelligencer, 15 December 1806]]
*[[Richmond Enquirer, 8 July 1806]]
*[[Richmond Enquirer, 10 June 1806]]
*[[Richmond Enquirer, 9 September 1806]]
*[[Virginia Argus, 10 June 1806]]
*[[Virginia Argus, 17 June 1806]]
*[[Virginia Argus, 25 June 1806]]
*[[Virginia, June General Court, 1806]]

==References==
<references/>

==External links==

[[Category:Biographies (Articles)]]
[[Category:Murder of George Wythe]]

Examinations of George Wythe Swinney for Forgery and Murder

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{{DISPLAYTITLE:"Examinations of George Wythe Swinney for Forgery and Murder: A Documentary Essay"}}
[[File:WilliamAndMaryQuarterlyOctober1955Wythe.jpg|thumb|right|400px|Engraved portrait [[George Wythe]] by [[Depictions of Wythe|J.B. Longacre]], from the ''William and Mary Quarterly,'' 3rd ser., 12, no. 4 (October 1955), 512.]]

Wythe scholar W. Edwin Hemphill contributed to a special issue of ''The William and Mary Quarterly'', dedicated to the murder of [[George Wythe]], in October, 1955. The issue was published in accordance with the Marshall-Wythe celebration at the [http://law.wm.edu/ College of William & Mary Law School] on September 25, 1954, for the bicentennial of [[John Marshall|John Marshall's]] birth. The journal pairs Hemphill's essay on "[[Media:HemphillExaminationsOfGeorgeWytheSwinneyOctober1955.pdf|Examinations of George Wythe Swinney for Forgery and Murder]],"<ref>W. Edwin Hemphill, "Examinations of George Wythe Swinney for Forgery and Murder: A Documentary Essay," ''William and Mary Quarterly'' 3rd ser., 12, no. 4 (October 1955), 543-574.</ref> with another by [[wikipedia:Julian P. Boyd|Julian P. Boyd]], "[[Murder of George Wythe]]."<ref>Julian P. Boyd, "[[Media:BoydMurderOfGeorgeWytheOctober1955.pdf|The Murder of George Wythe]]," ''William and Mary Quarterly'' 3rd ser., 12, no. 4 (October 1955), 513-542.</ref> Hemphill had rediscovered witness testimony given for [[Death of George Wythe#Sweeney's Trial|Sweeney's murder trial]] in 1806, and both authors made use of this new information.

Hemphill and Boyd's work was published as a pamphlet reprint the same year, under the title: [https://catalog.swem.wm.edu/law/Record/343766 ''The Murder of George Wythe: Two Essays''] (Williamsburg, VA: [https://oieahc.wm.edu/ Institute of Early American History and Culture,] 1955).

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==Article text, October 1955==
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'''Examinations of George Wythe Swinney<br />for Forgery and Murder: A Documentary Essay'''<br />W. Edwin Hemphill*
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“I SHUDDER when I think of it." Thus wrote [[wikipedia:John Page (Virginia politician)|John Page]] three weeks after the death of [[George Wythe]] in Richmond on June 8, 1806.<sup>1</sup> Less than a year and a half had elapsed since a "numerous concourse" of Jeffersonian Republicans had gathered at the Washington Tavern in the capital on March 4, 1805, to celebrate the second inauguration of [[Thomas Jefferson]] as the President of the United States. On the joyous occasion of the party's victory banquet Governor Page had asked Judge Wythe to retire and had then proposed a volunteer toast to "George Wythe, distinguished alike for his wisdom and integrity as a magistrate, and his zeal and disinterestedness as a patriot." The tavern's hall had resounded with nine cheers—as many as were given in response to any prearranged or spontaneous toast, even that to the President himself.<sup>2</sup> Nine months later Page had retired from the governorship.

As he sat at his writing desk late in June, 1806, amid the peace and security of "Rosewell," his magnificent home in Gloucester County, John Page reflected upon the saddening, disheartening news he had heard during a recent trip to Richmond. [[William DuVal]], George Wythe's nearest neighbor, had told Page how their mutual friend had suffered and had died—and how very suspect certain circumstances preceding that death seemed. But nothing had yet been proved. So the circumspect Page scribbled to another friend an outburst that was more a sermon than a digest of the evidence. "I know only enough" about the "horrid tale," he remarked in his letter to St. George Tucker, one of Wythe's students and the judge who had succeeded Wythe in the chair of law in the College

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* Mr. Hemphill is Managing Editor of ''Virginia Cavalcade'' and a member of the staff of the Virginia State Library. These depositions were discovered by Mr. Hemphill and are now printed for the first time in this issue of the ''Quarterly''.

<sup>1</sup> John Page to [[St. George Tucker]], Jun. 29, 1806, Tucker-Coleman Papers, Colonial Williamsburg.

<sup>2</sup> Richmond ''Enquirer'', Mar. 8, 1805.
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[[File:BoydHemphillMurderOfGeorgeWytheTwoEssays1955.jpg|thumb|right|400px|Title page from Boyd and [[Examinations of George Wythe Swinney for Forgery and Murder|Hemphill's]] pamphlet reprint, [https://catalog.swem.wm.edu/law/Record/343766 ''The Murder of George Wythe: Two Essays''] (Williamsburg, VA: Institute of Early American History and Culture, 1955).]]
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of William and Mary, "to shock my Soul." But the former Governor could not forbear comment along other lines. The murder of Chancellor Wythe, he exclaimed, made him "feel for humanity—and the wounded honor of my Country!"<sup>3</sup>

[[wikipedia:William H. Cabell|Governor William H. Cabell]], Page's successor, was also distressed. He reminded one of his sisters-in-law of their experience when they had visited a Miss Nelson, who had then been living in the modest Richmond home of her uncle, the widowered, scholarly Chancellor. "She and all of us were almost children, and few grown men would have found any interest in staying in the room where we were. But the good old gentleman brought forth his philosophical apparatus and amused us by exhibiting experiments, which we did not well comprehend, it is true, but he tried to make us do so, and we felt elevated by such attentions from so great a man."<sup>4</sup>

The up-and-coming [[wikipedia:William Wirt (Attorney General)|William Wirt]], who had served for a year in a judicial office coordinate with that of the victim,<sup>5</sup> wrote from Norfolk to [[wikipedia:James Monroe|James Monroe]], who was abroad, in indignant terms about the "dose of arsenick administered" to "poor old Chancellor Wythe."<sup>6</sup> Five weeks later Wirt could assure his absent wife, "I dare say you have heard me say that I hoped no one would undertake the defence of [the accused, George Wythe] Swinney, but that he would be left to the fate which he seemed so justly to merit."<sup>7</sup>

The editor of a Richmond newspaper was upset enough to describe his news announcement of the death as a "painful task."<sup>8</sup> An editor in Raleigh, North Carolina, was told "by a gentleman lately from Rich-

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<sup>3</sup> John Page to St. George Tucker, Jun. 29, 1806, Tucker-Coleman Papers.

<sup>4</sup> William H. Cabell to Mrs. William Wirt (undated), quoted in John Pendleton Kennedy, ''[[Life of William Wirt#Page 151|Memoirs of the Life of William Wirt, Attorney General of the United States]]'' (Philadelphia, 1849), I, 151-152. Hereafter cited as Kennedy, ''William Wirt''.

<sup>5</sup> Ambitious for wealth, Wirt found his position as judge of the Superior Court of Chancery for the Eastern District irksome, its salary barely adequate in view of his second marriage, which took place in September, 1802. It "is possible," he observed wryly, "that I may, like Mr. Wythe, grow old in judicial honors and Roman poverty. I may die beloved, reverenced almost to canonization by my country, and my wife and children, as they beg for bread, may have to boast that they were mine." [[Life of William Wirt|William Wirt to Dabney Carr]], Feb. 13, 1803, ''ibid.'', 95. In May, 1803, Wirt returned to the practice of law as an attorney, with his residence and headquarters in Norfolk. ''Ibid.'', 87-101.

<sup>6</sup> William Wirt to James Monroe, Jun. 10, 1806, Monroe Papers, vol. XI, no. 1373, Library of Congress.

<sup>7</sup> William Wirt to Elizabeth Gamble Wirt, Jul. 13, 1806, Kennedy, ''[[Life of William Wirt#Page 152|William Wirt]]'', 1, 152-153.

<sup>8</sup> [[Virginia Argus, 10 June 1806|Richmond ''Virginia Argus'', Jun. 10, 1806]].
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mond" about the crime and was thus enabled to "scoop" the world by publishing the first printed details, albeit inaccurate ones, of the "circumstances of this horrid transaction."<sup>9</sup> Newspapers as far away as Boston recorded its effect.<sup>10</sup> Richmond's press devoted an apparently unprecedented amount of space to the modest, touching, but reserved funeral oration by [[William Munford]]<sup>11</sup> and to laudatory tributes received as anonymous communications to the editors; the total aggregated what seems to have been more column inches of eulogy than had been elicited in Virginia newspapers by the death of George Washington or by that of any other person.<sup>12</sup>

Washington's imaginative, opportunistic biographer, Mason Locke Weems, seized upon news that had "quite galvanized" the "very young and tender hearted" in Charleston, South Carolina, as excuse enough for a discursive essay. That itinerant book-peddler described himself as "getting now to be a little oldish . . . , and daily, as becomes a stranger in Charleston, at this season, looking out for a squall of the same sort." Weems viewed with equanimity the fact that "death, by a touch of his old thresher, with equal ease, brings down a Chancellor or a cherry." He professed no grief over the death of the Virginian he portrayed as "[[Honest Lawyer|The Honest Lawyer]]." On the contrary, the effusive "Parson" enjoined joy "that this veteran of the law, after a life of glorious toil, to revive the golden age of justice on earth, was returned to the high courts of heaven-not

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<sup>9</sup> Raleigh, N. C., ''Minerva'', Jun. 16, 1806.

<sup>10</sup> Boston, Mass., ''Gazette'', Jun. 19, 1806, and ''Columbian Centinel'', Jun. 21, 1806.

<sup>11</sup> After the death of Wythe's second wife in 1787, William Munford (1775-1825) had lived in Wythe's home in Williamsburg and had been a special object of Wythe's generous attentions to youth. Grateful, Munford named his oldest child George Wythe Munford "after my old friend and benefactor the Chancellor." William Munford to his sister-in-law, Mrs. Mary R. Preston, Jan. 10, 1803, Munford- Ellis Papers, Duke University Library. Munford, his heart "torn with sorrow," then accepted the Council of State's assignment to preach the funeral oration, partly because "the ties of gratitude to that best of men, for the extraordinary kindness he ever manifested towards me, ought to prohibit my suffering him to go to his grave without an Eulogy." William Munford to Governor William H. Cabell, Jun. 8, 1806, Executive Papers, Virginia State Library. The funeral oration by Munford was printed in its entirety by two Richmond newspapers: Richmond ''Enquirer'', Jun. 13 and 17, 1806; Richmond ''Virginia Argus'', Jun. 17, 1806.

<sup>12</sup> See issues of the ''Enquirer'', the ''Impartial Observer'', the ''Virginia Argus'', and the ''Virginia Gazette, & General Advertiser'' during the first three or four weeks after Jun. 8, 1806. The author's comparison is based upon impressions rather than upon actual counts of the space allotted by Richmond editors to obituaries, eulogies, etc., for Wythe and for such other distinguished citizens as George Washington, who had died in 1799, and Edmund Pendleton, who had died in 1803.
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pale and trembling . . . , wet with widows' tears, and blood of murdered patriots, to meet the tear-avenging God; but bright in conscious integrity, with hands pure as the sweet palms which press the alabaster bottles of life, and in robes of innocence, snow-white as those that angels wear, to meet the smiles of the Judge Supreme, and the acclamations of brother saints innumerable."'<sup>13</sup>

Celebrants of the Fourth of July in 1806 drank toasts to the memory of George Wythe.<sup>14</sup> Restricted to severe brevity by that social form of tribute, those who gathered for the Fourth at Lexington, Kentucky, remembered Wythe simply as "a faithful labourer in the vineyard of the republic."<sup>15</sup> There the orator of the day was Henry Clay, who until his own death remained proud of the fact that he had been associated with Wythe's court during the 1790's. Indeed, young Clay had been the amanuensis who transcribed for publication the Chancellor's annotated decisions, confusingly peppered though they were with Greek phrases Clay had been able neither to understand nor to write well.<sup>16</sup> Saddened by the news that had plunged Richmond into mourning (news that had just reached Lexington), Clay made his address "short and impressive."<sup>17</sup>

The sense of revulsion felt throughout the country crossed party lines as well as state lines. A Federalist organ in the nation's largest city copied from the Richmond ''Enquirer'' two paragraphs of Republican editor Thomas Ritchie's shocked obituary. To those paragraphs it appended the Petersburg, Virginia, ''Republican's'' pointed comment: "It is generally believed, that this patriot, has been brought to the grave, by means, the 'most foul, base and unnatural,' and that the accused is to undergo an examination."<sup>18</sup> Even a modern interpreter of the Old Dominion cites the felony as the worst example of the cussedness—or something worse—

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<sup>13</sup> M. L. Weems, "[[Honest Lawyer|The Honest Lawyer: An Anecdote]]," Charleston, S. C., ''Times'', Jul. 1, 1806.

<sup>14</sup> [[Richmond Enquirer, 8 July 1806|Richmond ''Enquirer'', Jul. 8, 1806]].

<sup>15</sup> Lexington ''Kentucky Gazette'', Jul. 5, 1806.

<sup>16</sup> Henry Clay to B. B. Minor, May 3, 1851, printed in Benjamin Blake Minor, '[[Memoir of the Author]]," in George Wythe, ''Decisions of Cases in Virginia, by the High Court of Chancery, with Remarks upon Decrees, by the Court of Appeals, Reversing Some of Those Decisions'' (2d ed., B. B. Minor, ed., xxxii-xxxvi. Richmond, 1852), Hereafter cited as Wythe, ''Decisions''.

<sup>17</sup> Bernard Mayo, ''Henry Clay, Spokesman of the New West'' (Boston, 1937), 208-209.

<sup>18</sup> Philadelphia, Pa., ''Poulson's American Daily Advertiser'', Jun. 17, 1806. This newspaper attributed the remark to the Petersburg ''Republican'' of an unspecified date.
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that she attributes to Virginians.<sup>19</sup> The murder of George Wythe took at the time top or high rank among the state's most heinous crimes. It still does.

Inevitably, the revolting affair created quite a stir, for people ''will'' talk. Throughout the week before the prostrated Wythe's last breath set the bells of Richmond a-tolling, his death was a foregone conclusion. People marveled that a man of his age could so long survive the excruciating agonies of so insidious and lethal a poison. While Wythe still suffered, strong suspicion was aroused. Circumstances and tangible evidence converted suspicion into conviction at least seven days before the poison produced its ultimate effect upon the Chancellor's strong constitution.

The suspect was as undoubted as was the conclusion that Wythe was a victim of premeditated murder by means of arsenic. Invariably the slayer was identified as the venerable patriot's teen-aged grandnephew and namesake, George Wythe Swinney, an ingrate who had already proved himself unworthy of the home and education he had enjoyed for several years under the hip roof of the Chancellor's unpretentious cottage. Had not that young reprobate stolen books and money from his too-trusting benefactor? Had he not forged checks against his patron's bank account? And had it not been generally known, doubtless by Swinney himself, that he was the chief heir to Wythe's estate, a modest one but doubtless large enough to provide some relief to a culprit in financial difficulties? So, people said, he had placed his fatal dose in the breakfast coffee served in the unsuspecting household on Sunday morning, May 25. Immediately after that meal the good old judge and two freed Negroes had become critically ill. Lydia Broadnax, the Chancellor's faithful cook and servant, recovered. Michael Brown, the mulatto lad to whom Wythe had personally been giving a classical education—Greek and all—as a practical experiment in testing and developing the intelligence of Virginia's other race, had died on the next Sunday, June 1. The Chancellor himself lived in torment—and perhaps toward the end in a merciful coma—through a second week, but he died on the second Sunday morning, June 8. Fortunately, however, he did not expire before he had altered his will to disinherit the villainous Swinney.

Such is the traditional account of the death of Wythe—a paraphrase expanded to greater length than any known to have been written within the next two weeks, doubtless shorter than many conversational versions

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<sup>19</sup> Virginia Moore, ''Virginia Is a State of Mind'' (New York, 1943), 190-191.
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of the time, and certainly embodying the contemporary explanations of the timing, the method, and the motive of the murderer of Michael Brown and George Wythe.<sup>20</sup> This story of the baneful circumstances has persisted ever since 1806. In its retellings it has undergone normal embellishments and amendments. Developments not fully understood when they occurred gave the tale a poor foundation at the start. The recollections of its original narrators grew more and more subject to error with the passing years. Family traditions, transmitted orally, added details and supplied conversations that seem more logical than they are trustworthy. Fanciful emphases and interpretations have been born of assumptions, not of research.

The only substantial modification, however, has been a pronounced tendency to portray the poisoning of Wythe as an accident, while that of Michael Brown has remained the result of intentional murder. This alteration cannot be traced backward beyond 1850. It stems from two sources that were not independent of each other. One was the quite faulty memory of Dr. John Dove of Richmond, who claimed in 1856 that he had been "[[Memoranda Concerning the Death of Chancellor Wythe|present during the sickness & death of Judge Wythe]]." Dove alleged that the Chancellor had been ill before May 25, 1806, and that Swinney had not expected him to eat breakfast that Sunday morning where the poisoned coffee was to be served. The other source was Benjamin Blake Minor, editor of the ''Southern Literary Messenger'', who contributed a biographical sketch to the second edition of the Chancellor's ''Decisions'' (1852). Minor talked with Dr. Dove, who undoubtedly told him something to the effect that Swinney had "vowed vengeance" only against the mulatto boy; and

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<sup>20</sup> Evidently the earliest summaries of the circumstances now extant are in the reliable letters written by William DuVal to Thomas Jefferson on [[Jefferson-DuVal Correspondence#William DuVal to Thomas Jefferson.2C 4 June 1806|Jun. 4 and 8]], preserved in the Jefferson Papers, Library of Congress. Neither attributes to the poisonings a plain method or motive. The earliest written statement as to motivation and method is apparently to be found in the letter of Jun. 10, 1806, from William Wirt in Norfolk to James Monroe, Monroe Papers, vol. XI, no. 1373. That letter was written before Wirt had learned of Wythe's death. Internal evidence in Wirt's letter indicates that the allegations it relayed were based exclusively on information written on Jun. 5, in a letter that has not been found, by Governor William H. Cabell, his brother-in-law. A later account is in the brief, less specific recollection recorded by Littleton Waller Tazewell, who wrote that "it was generally believed" that Wythe's death "was produced by poison, administered in his coffee, by a reprobate boy, a relation of his who he had undertaken to educate, and who was afterwards convicted of having committed many forgeries of checks in his patrons name." "Sketches of his own family, written by Littleton Waller Tazewell, for the use of his children. Norfolk. Virginia. 1823" (MS. in the Virginia State Library), 121.
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Minor found what seemed to him to be sufficient substantiation in Wythe's will and two of its codicils, which made Swinney the residuary legatee of bequests to Michael Brown.<sup>21</sup> Until now the only serious analysis of the traditional account of Wythe's death and of the Dove-Minor misinterpretation has been that of Julian P. Boyd. His lucidly reasoned booklet on ''[[Murder of George Wythe|The Murder of George Wythe]]'' assayed them chiefly by the test of comparison with information found in seven previously unexploited letters written in 1806 to President Jefferson by Wythe's intimate friend and executor, William DuVal.<sup>22</sup>

But other and even better contemporary records are also extant, and it is good that the ''William and Mary Quarterly'' affords space in this issue both for them and Dr. Boyd's thoughtful interpretation, now relatively unavailable. Chief among these additional documents are official court records of the preliminary trials of George Wythe Swinney for forgery and murder. Like pirates' gold buried in a forgotten pit, they lay neglected through more than a century and a quarter despite recurrent curiosity about Wythe's tragic death. These legal records, discovered by the present writer a number of years ago and now published for the first time, contain precious nuggets of authentic information. They include digests of the sworn testimony of sixteen witnesses for the prosecution against Swinney. They add up to a convincing indictment of him. The discovery was made in the office of the Clerk of the Hustings Court of the City of Richmond,<sup>23</sup> where the documents lay within the

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<sup>21</sup> Both of the phrases quoted above are from Dr. Dove's recorded recollections, which are replete with provable errors and must be considered wholly suspect. "[[Memoranda Concerning the Death of Chancellor Wythe|Memoranda concerning the death of Chancellor Wythe]]—Signed in the Aut[o]-g[rap]h. of T[homas]. H. Wynne and rec'd by him from Dr. John Dove, Sept. 16, 1856," MS. in the Brock Collection, Henry E. Huntington Library and Art Gallery. Hereafter cited as Dove, "Memoranda." For evidence that John Dove, M.D., was a Richmond practitioner from about 1822 to about 1852, see Wyndham B. Blanton, ''Medicine in Virginia in the Nineteenth Century'' (Richmond, 1933), 48, 76, 91, 238, 240. For evidence that Dove influenced Minor directly, see Minor, "[[Memoir of the Author]]," in Wythe, ''Decisions'', xxvii.

<sup>22</sup> Julian P. Boyd, ''[[Murder of George Wythe|The Murder of George Wythe]]'' (Philadelphia, 1949).

<sup>23</sup> Binder's title "[[Hustings Court Order Book|Order Book No. 6, 1804-1806]]," 464-465, 482-488. Rough drafts of the records for these two cases of the Commonwealth v. Swinney—drafts identical to the final ones in every important respect—can be found in the same office in the volume given the binder's title of "[[Hustings Court Minutes|Minutes No. 3, 1802-1806]]" (MS. with pages not numbered) under dates of Jun. 2 and 23, 1806, respectively. Microfilm copies of both the Minute Book and the Order Book are available in the Virginia State Library. The final drafts of the two documents have been transcribed from the Order Book for publication below.
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domain of the very court to which the laws of Virginia prevailing in 1806 required that such an offender in Richmond as Swinney should be brought first for any trial of which an official record would have been kept. When Richmond had been incorporated in 1782, it was made a unit of local government. The General Assembly had provided by law for the annual election of twelve citizens to serve in their spare time as municipal officials. Half of them were to constitute a legislative Common Council. The remaining six—a mayor, a recorder, and four aldermen—were commanded "to hold a court of hustings" each month. Its jurisdiction in Richmond corresponded to that of a county court within county boundaries. Each of the judges of the Hustings Court had been vested with the powers of a justice of the peace, and they had been specifically assigned the duty "of examining criminals for all offences committed within the limits of the said corporation." If they found a defendant guilty of a serious crime, they were to refer him to a higher court for trial before professional judges and a jury.<sup>24</sup> These governmental and legal arrangements for the preservation of law and order had been modified only slightly in later statutes, but a law of 1803 had increased the membership of the Common Council to fifteen and that of the Hustings Court to nine, doubtless in recognition of Richmond's growth to a population of more than five thousand.<sup>25</sup> We shall find that not all of our questions are answered by these documents, but no searcher for the treasure-trove could reasonably have expected it to be so rich. Yet it multiplies by many times the amount of contemporary data at our disposal. It enables us to confirm some details reported unofficially at the time and to correct others. It supplies us with vivid portraits of a gloomy, wicked, and yet remorseful youth; of the last days of a questioning, then convinced, and ultimately forgiving victim; of the anxious solicitude and growing outrage of the latter's friends; and of their transition from innocent acceptance of his serious illness as a natural thing to mounting suspicion, relatively thorough investigation, and distressing proof of the poisoner's guilt. Coupled with our greater knowledge of toxicology and with other contemporary records not utilized

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<sup>24</sup> William Waller Hening, compiler, ''The Statutes at Large ... of Virginia . . .'' (Richmond, Philadelphia, New York, 1819-1823,) XI (Richmond, 1823), 45-51. Hereafter cited as Hening, ''Statutes''.

<sup>25</sup> ''Ibid.'', XII (Richmond, 1823), 407-408; Samuel Shepherd, compiler, ''The Statutes at Large of Virginia,. . . 1792, to . . . 1806 . . .'' (Richmond, 1835-1836), II, 93, 422-425, III, 73-75. Hereafter cited as Shepherd, ''Statutes''.
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by previous investigators, it affords us a surer understanding of the grim story of the unpunished forgeries and murders committed by George Wythe Swinney than was vouchsafed to any of the people who mourned the death of Chancellor Wythe and sought with decreasing fervor to do justice to the cause of it—a more reliable understanding, indeed, than any of our predecessors attained.

The official record of the examination of Swinney for alleged forgery reads as follows:

At a Court of Hustings called and held for the City of Richmond at the Courthouse, on Monday, the second day of June 1806, for the examination of George W. Swinney,<sup>26</sup> who stands accused of forgery.<sup>27</sup>

Present

Edward Carrington, Gentleman, Mayor,

Samuel Pleasants, Gentleman, Recorder,

Henry S. Shore, William Goodwin, Anderson Barret,

David Lambert and William Richardson, Gentlemen, Aldermen.

The prisoner was led to the bar in custody of the Sergeant of this City; whereupon sundry witnesses were sworn and examined, and the prisoner in his defence fully heard: On consideration whereof, the Court is of opinion that the prisoner is guilty of the offence aforesaid, and doth order that he undergo a trial therefor at the next District Court directed by law to be holden at the Capitol in this City: and it is further ordered that the said George W. Swinney be bound in a recognizance in the penalty of one thousand dollars, with suf-

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<sup>26</sup> George Wythe Swinney, whose surname occurs in contemporary records also in the form of various spellings of Sweeney, was a grandson of George Wythe's sister and hence a grandnephew of Wythe. For genealogical information concerning him and related Sweeneys see W. Edwin Hemphill, George Wythe the Colonial Briton: A Biographical Study of the Pre-Revolutionary Era (Doctoral Dissertation, University of Virginia, 1937), 40.

<sup>27</sup> Swinney had doubtless been accused of forgery as the result of a preliminary hearing before one or more of the municipal magistrates or justices of the peace, presumably within the last five days of the preceding week, May 27-31, as is indicated by the testimony of the first witness below. William Wirt enumerated a few other manifestations of dishonesty on Swinney's part that had been preludes to his climactic crime: "The young villain (only about 16 or 17) had been in the habit of robbing his uncle [i.e., his granduncle, George Wythe] with a false-key, had sold three trunks of his most valuable law-books, had forged his checks on the bank to a considerable amount, & wound up his villainies by this act [of murder]." William Wirt to James Monroe, Jun. 10, 1806, Monroe Papers, vol. XI, no. 1373.
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ficient security in a like penalty, for his personal appearance before the Judges of the said district Court, on the first day of the next term thereof, to answer the Commonwealth of the offence aforesaid; and failing to give the security required, he is remanded to jail until he shall give such security, or shall be otherwise discharged by the course of law.

William Dandridge (Teller of the Bank of Virginia) a witness on the foregoing examination, being sworn, deposeth and saith: That on Tuesday last [May 27], the prisoner produced to him at the bank of Virginia, a check thereon for the sum of one hundred dollars, drawn in the name of George Wythe esquire, which the deponent paid. That some time after, on examining the check, he suspected it to be a forged one, and he thereupon went to the prisoner and stated that he believed there was a mistake in said check; That the prisoner immediately produced the money and delivered the same to the deponent. That the prisoner frequently presented checks at the bank in the name of the said George Wythe; and the deponent verily believes that six checks now produced in Court were presented by the prisoner, and are all counterfeited.

Peter Tinsley,<sup>28</sup> another witness sworn on the said examination deposeth and saith: That he carried to George Wythe esquire seven checks drawn in his name on the bank of Virginia, who denied having drawn or signed more than one of them.

William Dandridge and Peter Tinsley here in Court acknowledge themselves indebted to his Excellency William H. Cabell governor or chief magistrate of the Commonwealth of Virginia, in the sum of one hundred pounds each, of their respective goods and chattels, lands and tenements, to be levied, and to the said governor and his successors, for the use of the said Common-wealth rendered: Yet upon this Condition, that if the said William Dandridge and Peter Tinsley shall severally make their personal appearance before the Judges of the District Court directed by law to be holden at the Capitol in this City, on the first day of the next term thereof, to give evidence on behalf of the Commonwealth against George W. Swinney, who stands accused of forgery, and shall not depart thence without the leave of the said Court, then this recognizance is to be void.<center>
(Minutes signed) E: Carrington Mayor<sup>29</sup>
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<sup>28</sup> Tinsley was for many years Clerk of the High Court of Chancery.

<sup>29</sup> One item of corrective evidence is brought out in this record. Unofficial reports of 1806, whenever they stated or implied a chronology for Swinney's crimes, invariably indicated that his forgeries and the discovery of them preceded his poisoning of Judge Wythe. On the contrary, Dandridge testified that Swinney was sus-
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The official record of the examination of Swinney on the charge of murder is a remarkably detailed one. Its unusual length doubtless reflects a common impression of the uncommon nature and circumstances of the alleged crime. The record reveals utter desperation on the part of an al-most deranged Swinney. It portrays the mounting growth of suspicion during illnesses that might have been provoked by merely natural causes. It embodies observations that link Swinney conclusively with ratsbane (white arsenic) and yellow arsenic. It records medical symptoms and measures that are not nice but seem necessary. And it indicates reserve on the part of three physicians when they gave under oath their professional judgments whether or not the death of George Wythe could be attributed to arsenic poisoning. This record is as follows:

At a Court of Hustings called and held for the City of Richmond at the Courthouse, on Monday, the 23d. day of June 1806, for the examination of George W. Swinney, who stands accused of murder.<sup>30</sup>
Present

The Same Justices as above.<sup>31</sup>

The prisoner was led to the bar in custody of the Sergeant of this City; where-upon sundry witnesses were sworn and examined, and the prisoner in his

<div style="font-size: 85%;">
pected for the first time of his forgeries after he had presented a sixth forged check at the bank on Tuesday, May 27. That Tuesday will be found to have been two or three days after Swinney had poisoned Wythe. On that Tuesday the Chancellor lay abed in the early stages of his mortal illness. That is one reason—and his charitable, compassionate nature may be another—for the fact that Wythe himself did not testify in court which of the seven checks "carried" to him by Tinsley he had not signed personally. Further details about the six forgeries will be revealed later in this article.

<sup>30</sup> The accusation against Swinney for the alleged murders of "Wythe & Michael Brown the Freed Boy" had resulted, in keeping with Virginia law, from a hearing held on Jun. 18 before Mayor Edward Carrington and two other magistrates or aldermen. On that occasion the examination of witnesses "lasted near Five Hours." The mayor and his two colleagues "were of Opinion that they, Mr. Wythe & Michael, were poisoned by Geo. W Sweeney." The suspect was ordered to be held in jail to await trial by the Hustings Court as a "Court of Examination" on Jun. 23. William DuVal to Thomas Jefferson, [[Jefferson-DuVal Correspondence#William DuVal to Thomas Jefferson.2C 19 June 1806|Jun. 19, 1806]], Jefferson Papers. Cf. Shepherd, ''Statutes'', III, 73-75.

<sup>31</sup> That is to say, the same six who had been present for the trials of earlier cases on Jun. 23: Mayor Edward Carrington, Recorder Samuel Pleasants, Jr., and Aldermen Henry S. Shore, Anderson Barret, David Lambert, and William Richardson. Aldermen William DuVal, William Goodwin, and Thomas Underwood did not sit as judges for this examination. DuVal attended as a witness.
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===Page 554===

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defence fully heard: On consideration whereof, the Court is of opinion that the prisoner is guilty of the offence aforesaid, and doth order that he undergo a trial therefor before the next District Court directed by law to be holden at the Capitol in this City: and thereupon the said George W. Swinney is remanded to jail.<sup>32</sup>

Tarlton Webb,<sup>33</sup> a witness for the Commonwealth on this examination, being sworn, deposeth and saith: That about a fortnight or three weeks be-fore the prisoner was committed to jail, he enquired of the deponent where he could procure any ratsbane? The deponent replied that it was against the law of the United States to have it. The day before the prisoner was apprehended,<sup>34</sup> he came to the house of the deponent's mother, and shewed the depon[en]t something wrapped in paper, which he said was Ratsbane, and in-formed the deponent that he intended to kill himself, and offered to give the deponent some if he wanted to die. The deponent being shown some drugs found in the jail and produced in Court by Mr. [William] Rose,<sup>35</sup> deposes that what the prisoner showed him was like that in Mr. Rose's possession, and that there was about one table spoonful. The prisoner stated to the deponent that he was very unhappy and something pressed upon his mind; but though applied to, would not disclose the cause of his uneasiness to the deponent.

William Rose,<sup>36</sup> another witness sworn on this examination, deposeth and

<div style="font-size: 85%;">
<sup>32</sup> The [[Virginia, June General Court, 1806|Richmond ''Enquirer'', Jun. 24, 1806]], printed the following announcement of the decision: "George W. Swinney was yesterday called before the examining court of this city, on the charge of poisoning his great Uncle, the venerable George Wythe, and a servant boy. He was unanimously remanded to jail for further trial before the district court to be had in September next." Although it was not particularly customary for crime news, especially courtroom news of this tentative sort, to be widely reprinted, this item reappeared in such representative newspapers as the Richmond [[Virginia Argus, 25 June 1806|''Virginia Argus'', Jun. 25, 1806]]; the Alexandria ''Virginia Gazette, & General Advertiser'', Jun. 25, 1806; the Washington, D. C., ''National Intelligencer, and Washington Advertiser'', Jun. 30, 1806, and ''Universal Gazette'', Jul. 3, 1806; the Augusta, Ga., ''Chronicle'', Jul. 12, 1806; and the Savannah, Ga., ''Columbian Museum & Savannah Advertiser'', Jul. 12, 1806, and ''Georgia Republican'', Jul. 15, 1806.

<sup>33</sup> This witness has not been identified positively. His testimony suggests that he was probably a youthful friend of Swinney.

<sup>34</sup> Swinney was arrested on Wednesday, May 28, or Thursday, May 29, according to testimony given in this examination by witness William DuVal, reproduced below. Webb's testimony here to the effect that Swinney told him on May 27 or May 28 that "something pressed upon his [Swinney's] mind" can be, therefore, a veiled reference by Swinney himself to worry and remorse because of the way he had used poison, with results that had not yet proved fatal, and possibly also because of the forgery committed and detected on Tuesday, May 27.

<sup>35</sup> For an identification of William Rose see the next paragraph and footnote 36.

<sup>36</sup> Rose was the public jailor of Richmond. Richmond ''Enquirer'', Jul. 8, 1817. Rose's
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===Page 555===

<blockquote>
saith: That his servant girl Pleasant, went into the garden about twelve o'clock the day after the prisoner was committed to jail and brought the paper this day produced [in court], the contents of which the deponent immediately knew to be arsenic. When the prisoner was committed to jail, the deponent did not search him; but about an hour and a half after, or thereabouts, hearing that it was probable he had pistols, he went into the jail and felt his pocket, and felt that there was a heavy substance wrapped in paper; but supposing that it might be coppers, or some few eighteen penny pieces, he did not take it out of his pocket. The prisoner had the use of the debtors room and the jail yard at his option. As soon [as] the arsenic was found the deponent suspected that Mr. Wythe was poisoned.

Samuel McCraw,<sup>37</sup> another witness sworn on the said examination, deposeth and saith; That being informed by Mr. Rose, that arsenic had been found in his garden, he proposed to have the servant carried into the garden to see the place where [the arsenic had been] found, to ascertain whether it was deposited there, or thrown from the jail yard. That at the place where the servant stated the arsenic to have been found, the deponent found two papers lying about eighteen inches apart: That the crude arsenic had penetrated a little into the earth, and there were two plants one a fennel, the other a beat [''sic''], broken off as he supposed by the throwing the arsenic over the jail wall: The deponent thinks it must have come from the jail yard. The beat [''sic''] that was wounded was next [i.e., nearer] the jail wall and was wounded considerably farther from the ground than the fennel. On the first of June, one week after Mr. Wythe's attack [began], the deponent was re-quested to go to attest [the final codicil to] Mr. Wythe's will. Mr. Wythe re-quested the prisoner's room and trunk to be searched. The deponent, with others, was conducted to the room where the prisoner lodged, opened the chest and found a port folio with a quire of blotting paper, which the deponent believes to be of the same kind with what was found wrapped round the arsenic found in the garden. In the prisoner's room on a writing table, the deponent found a paper on which were a half a dozen strawberries with the appearance of arsenic having been sprinkled over them. He found a phial with an appearance of having had a liquid, some of which adhered to the side of the phial, and on examination was believed to have been a mixture of testimony and that of the next witness make it plain that the former's residence and garden adjoined the jail.

<div style="font-size: 85%;">
testimony and that of the next witness make it plain that the former's residence and garden adjoined the jail.

<sup>37</sup> McCraw was one of the four witnesses who signed the final codicil to Wythe's will. Minor, "[[Memoir of the Author]]," in Wythe, ''Decisions'', xxxviii-xxxix.
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===Page 556===

<blockquote>
arsenic and sulphur. He also found two pieces of coarse brown paper, with something adhering to each, which was also declared to be arsenic and sulphur. The deponent frequently visited Mr. Wythe in his last illness and he appeared to be in very great agony from the first time to his death. Some time before the death of Mr. Wythe, while this deponent was sitting by him, Mr. Wythe exclaimed, cut me—the deponent supposed he wanted to have his flannel cut loose which the deponent accordingly did, but which gave apparent displeasure to Mr. Wythe, who then putting his hand to his throat and heart again called out, cut me, but could make no further explanation: this induced a belief in the deponent and those present that it was his wish to be opened after his death. The deponent never did hear Mr. Wythe express any suspicion of having been poisoned.

Fleming Russell<sup>38</sup> another witness sworn on the said examination deposeth and saith; That the day he received the warrant [for the arrest of Swinney] he went to Mr. Wythe's and found the prisoner: when he showed the prisoner the warrant and carried him to Major DuVal's & discovered he had no pistols, took his knife from him, and put his hand in his coat pocket, he felt very distinctly that he had two separate parcels of something wraped up in paper in his pocket but made no further search. After the prisoner was committed to jail, the deponent informed Mr. Rose, that the prisoner had some-thing else in his coat pocket and advised him to make a search, but did not go with Mr. Rose to make it.

Taylor Williams<sup>39</sup> a witness sworn on the said examination deposeth and saith; That about three weeks before the prisoner was apprehended, he mentioned something to the deponent about poison. The deponent informed him that copperas [i.e., crystallized ferrous sulphate] and water was poison. In about six or seven days after, the prisoner began a conversation with the deponent about poison: the deponent then told him ratsbane was poison, and that a gentleman of his acquaintance used it for the purpose of killing rats, and that [it] was to be bought in the shops, but does not recollect with certainty whether the prisoner asked him where it might be had.

Major William DuVal<sup>40</sup> another witness sworn on said examination de-

<div style="font-size: 85%;">
<sup>38</sup> This witness has not been identified. Judging from his testimony, he must have been a Richmond police officer.

<sup>39</sup> Williams appears from his testimony to have been a young friend of Swinney.

<sup>40</sup> William DuVal was of Huguenot descent, an officer during the Revolutionary War, an attorney, a member of the Virginia General Assembly, a magistrate of Richmond who had served as mayor during 1805-1806, and an intimate friend of Wythe, whose residence was also located in the square bounded by Grace, Sixth, Franklin,
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===Page 557===

<blockquote>
poseth and saith; that on the 25th day of May, he went to see Mr. Wythe, without knowing he was sick, and found him very ill[,] extended on his back. Mr. Wythe said he had not caught cold, that he was as well as usual in the morning, & eat his brea[k]fast as usual; but was immediately taken extremely ill, confined on his back except when forced up, which was upwards of forty times, and had fifteen large evacuations. After the prisoner was committed for the forgery he applied to the deponent by letter to be bailed. Mr. Wythe would have nothing to do with bailing [Swinney]. Mr. Wythe said he was taken ill on the twenty fifth day of May, about nine o'clock after having eat his break-fast; that on wednesday or thursday after, the prisoner was apprehended. Mr. Wythe requested that the prisoner's room and trunk might be searched, which request he repeated frequently, and finally on the first of June prevailed on Mr. McCraw and some other gentlemen who searched the room and trunk and found some papers with something adhereing to them which was declared by Doctor Greenhow<sup>41</sup> to be arsenic. The deponent saw the appearance of arsenic in an out house of Mr. Wythe's, in his yard, used as a shop; and [de-poseth] that some was also found in an old smoak house on a wheel barrow; which on being tried with a pin was proved to be arsenic. On thursday before Mr. Wythe's death he made an ejaculation and declared he was murdered in a low tone of voice. It was generally believed that Mr. Wythe had left the prisoner a great portion of his estate, and known that he had made some pro-vision for the mulatto boy, [Michael] Brown.

Samuel Greenhow<sup>42</sup> another witness sworn on said examination gave the same evidence upon the search of the prisoners room and trunk with McCraw.
and Fifth Streets. DuVal died in Buckingham County in 1842 at the age of 93. W. Asbury Christian, ''Richmond: Her Past and Present'' (Richmond, 1912), 57, 545; Richmond ''Enquirer'', Jan. 13, 1842, and May 13, 1842.

<div style="font-size: 85%;">
<sup>41</sup> The Greenhow to whom DuVal referred may have been the next witness, identified in footnote 42, who is known to have participated in the search of Swinney's room but is not known to have had any claim to the title of Doctor. Conceivably, on the other hand, this Doctor Greenhow may have been the Doctor James G. Greenhow who was living in Richmond in 1815. Blanton, ''Medicine in Virginia in the Nineteenth Century'', 246, 445, citing the Richmond ''Virginia Argus'', Mar. 1, 1815.

<sup>42</sup> Samuel Greenhow issued, as "Principal Agent," a call for the annual meeting in 1809 of the Mutual Assurance Society, the well-known, pioneer Virginia fire insurance company. Richmond ''Enquirer'', Dec. 24, 1808. With men like the Reverend John D. Blair, the Reverend John Buchanan, the Reverend John Holt Rice, and William Munford, Samuel Greenhow was a charter member of the Board of Managers of the Virginia Bible Society, which was organized in Jul., 1813. Christian, ''Richmond'', 87. Greenhow was one of the four witnesses who signed the final codicil to Wythe's will. Minor, "[[Memoir of the Author]]" in Wythe, ''Decisions'', xxxviii-xxxix.
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===Page 558===

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William Price<sup>43</sup> another witness sworn on said examination, gave the same evidence as McCraw and Greenhow on the subject of the search of the prisoner's room, and [substantiated the testimony] of McCraw on the subject of Mr. Wythe’s request to be cut. Mr. McCraw mentioned at that time that he supposed Mr. Wythe wanted to be cut open. Mr. Wythe appeared to be in great agony during his illness, and more particularly when moved.

Nelson Abbott<sup>44</sup> another witness sworn on said examination, deposeth and saith, that on saturday the 24th day of May last, he put an axe, now produced [in court], into a shop in Mr. Wythe’s yard, which he [Wythe] had lent him [Abbott] for a work shop; that on the 27th he went to Hanover and returned on friday the 30th when he discovered the arsenic in its present situation, and a hammer much stained with yellow, which has since been cleaned. The negroes in the shop said the prisoner had beat something they did not know what on the side of the ax with the hammer.

William Claiborne<sup>45</sup> another witness sworn on the said examination deposeth and saith: That he went to Mr. Wythe's the wednesday after his illness [began], who informed him that the Sunday preceding in the morning, he was as well as usual, immediately after breakfast he was taken with a colarimorbus [cholera morbus] and then a violent lax, went forty times that day, and had at least fifteen large evacuations: That on Saturday night he supped [i.e., on Saturday night, May 24, Wythe had supped] on milk and strawberries. Mr. Wythe said all the negroes [of his household] were taken [sick] at the same time. The deponent went into the kitchen and found most of them very ill. He then went to Major DuVal's, and expressed his opinion that the family were poisoned; and suspected the prisoner in consequence of his having been detected [on the previous day, May 27] in the forgery, as the death of Mr. Wythe before the detection could only prevent an alteration in his will which the deponent believed was much in favor of the prisoner. The deponent frequently told the prisoner that he would be well provided for by Mr. Wythe if he behaved well. After the death of the yellow boy [Michael Brown], the deponent was told by some of the negroes that arsenic was found in the outhouses. The deponent took some off the wheelbarrow in the old smoke house, applied fire to it and found from the smell that it was arsenic. The deponent asked Mr. Wythe whether the prisoner break-

<div style="font-size: 85%;">
<sup>43</sup> William Price was another of the witnesses to the final codicil to Wythe's will. Minor, "[[Memoir of the Author]]," in Wythe, ''Decisions'', xxxviii-xxxix.

<sup>44</sup> No information to identify this witness has been discovered.

<sup>45</sup> William Claiborne was the father of W. C. C. Claiborne, Governor of the Territory of Orleans. Richmond ''Enquirer'', Oct. 3, 1809.
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===Page 559===

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fasted with him the morning before he [Wythe] was taken [sick]. At first he did not answer. Afterwards he said he did not know, he [Swinney] was always called to his breakfast, but sometimes took no thing to eat or drink. Mr. Wythe observed he died in peace with all the world, and said he should leave directions for his executor to search the prisoner's trunk. This took place after the death of the boy Michael [on Sunday morning, June <sup>46</sup>], about sunset on the first of June.

[[wikipedia:Edmund Randolph|Edmund Randolph]],<sup>47</sup> being also sworn, deposeth and saith: That on Sunday the first of June about nine o'clock [A.M.], Major DuVal informed the deponent of the death of Michael from poison and [reported] Mr. Wythe as probably dying with the same. Mr. Wythe told the deponent he had supped on strawberries and milk the Saturday before he was taken ill. He wished his will to be altered so as to give to the prisoner's brothers and sisters what he had given him. The deponent made the alteration and then returned home, and afterwards went again to Mr. Wythe and informed him of the death of Michael Brown. The former codicil to the will was then destroyed and the present one made. On Wednesday the fourth of June, the deponent was in-formed by old Lydia [Broadnax] that more marks of poison had been discovered. The deponent went into the shop and saw Abbot's ax. The negro<sup>48</sup>

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<sup>46</sup> George Wythe said in the final codicil to his will, dated Jun. 1, 1806, that he had been told that Michael Brown had died that morning. Minor, "[[Memoir of the Author]]," in Wythe, ''Decisions'', xxxviii-xxxix. An almost contemporary letter also refers to Brown's death on Sunday morning, Jun. 1. William DuVal to Thomas Jefferson, [[Jefferson-DuVal Correspondence#William DuVal to Thomas Jefferson.2C 4 June 1806|Jun. 4, 1806]], Jefferson Papers.

<sup>47</sup> Edmund Randolph, the first Attorney General both of the Commonwealth of Virginia and of the United States, wrote and witnessed the final codicil to Wythe's will. See his testimony here given and Minor, "[[Memoir of the Author]]," in Wythe, ''Decisions'', xxxviii-xxxix. Randolph's career had overlapped Wythe's through the past thirty years—for example, in the Virginia conventions of 1776 and 1788. The first of the two codicils mentioned by Randolph in his testimony evidently devised to George Wythe Swinney's brothers and sisters only what Wythe had formerly bequeathed to Swinney. The second of the two codicils mentioned by Randolph devised to George Wythe Swinney's brothers and sisters everything that Wythe had formerly bequeathed both to Swinney and to Michael Brown. The will and its codicils dated Jan. 19 and Feb. 24, 1806, were proved in the General Court of Virginia on Jun. ii, 1806, by the oaths of Edmund Randolph and Peter Tinsley; and the final codicil, dated Jun. 1, 1806, was proved by the oaths of Samuel McCraw, William Price, and Edmund Randolph. For a printed copy of the will and its three validated codicils see Minor, ''ibid''. An attested manuscript copy is filed under Jun., 1806, in the Jefferson Papers.

<sup>48</sup> This reference to a certain Negro is not as precise as we might wish. Doubtless, however, Randolph talked on Jun. 4 with a Negro man employed in Nelson Abbott's workshop. Possibly this man was one of the same "negroes in the shop" who, according to Abbott's deposition, had told Abbott on May 30 that they did not
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===Page 560===

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was uncertain whether [it was on] the 24th or 26th of May, that the prisoner had caused the appearances [of poisons in the workshop]; but at last settled that it was on Saturday [May 24] when he found the prisoner in the shop, and one of the doors forced, and the prisoner was in the act of pounding some-thing on the axe. The prisoner asked him what it was? the negro replied he believed it was ratsbane. The prisoner then scraped it as clean as he could off the axe and folded it up in a piece of paper, wiping the axe with shavings. It was generally understood and believed that Mr. Wythe had left the bulk of his estate to the prisoner.

Doctor James McClurg,<sup>49</sup> another witness, being sworn, deposeth: That he was present at the opening of the body of Michael Brown. The lower part of the stomach was very much inflamed and had the appearance of the black vomit. The deponent went to visit Mr. Wythe on the day before the boy died and found him with a fever, his tongue very foul, had had no passage for twelve hours, and was free from pain. The appearance of the boy was such as arsenic might have produced; but such as might also have been produced by a great collection of bile. The deponent was also present at the opening the body of Mr. Wythe. The whole of his stomach and intestines had an uncommonly bloody appearance, that if produced by arsenic, in his [McClurg's] opinion, death would have ensued much sooner. Mr. Wythe had been frequently attacked with disordered bowells within three years last past.

Doctor James D. McCaw,<sup>50</sup> being also sworn, deposeth: That he was called ''know'' what substance Swinney had pounded into powder. In slight but not necessarily contradictory contrast, the Negro of whom Randolph testified simply ''believed'' on May 24 that the substance was ratsbane.

<div style="font-size: 85%;">
<sup>49</sup> Under the reorganization of the College of William and Mary instigated by Thomas Jefferson in 1779, James McClurg (1746-1823), Edinburgh-trained physician, had been one of Wythe's four colleagues in the faculty. For three years Dr. McClurg held the newly created chair of the professor of anatomy and medicine. Like Wythe, McClurg went to Philadelphia in 1787 to attend the convention from which emerged the Federal Constitution. McClurg was chosen to be Richmond's mayor in 1797, 1800, and 1803. For a quarter of a century he was one of the community's out-standing physicians. When the Medical Society of Virginia was organized in 1820, he was elected its first president. Although he was too infirm to take an active part in its affairs, he was re-elected in the next year. Blanton, ''Medicine in Virginia in the Nineteenth Century'', 13, 75-76; Christian, ''Richmond'', 545.

<sup>50</sup> James Drew McCaw, M.D., was one of the founders of the Medical Society of Virginia. His father, Dr. James McCaw, founded what might be called a Virginia medical dynasty destined to last five generations. Blanton, ''Medicine in Virginia in the Nineteenth Century'', 116-117, 261, 367. James D. McCaw's offer of 1802 to inoculate the poor of Richmond against smallpox had been accepted by the Common Hall or Council. Richmond ''Examiner'', Jun. 2, 1802. Judging by James D. McCaw's testi-
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===Page 561===

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to attend Mr Wythe on the 26th of May between four and five o'clock. He had been up with a violent puking & purging, and the deponent gave him an opiate, after which he got better, and was better until the discovery of the prisoner's forgery [on Tuesday, May 27], when he became worse and continued to grow worse. The deponent saw the boy [Michael Brown] on the day before his death, when he had a fever and complained of great pain. The deponent saw him opened after his death, and thinks that his death might have been occasioned by a great accumulation of bile.

Doctor William Foushee,<sup>51</sup> being sworn, deposeth: That he attended the opening of Mr Wythe's body in the presence of many other physicians.<sup>52</sup> The stomach was very much inflamed, and appeared as if a new inflamation was coming on. There was very little bile in the liver. The same appearance that his stomach and intestines exhibited might have been produced by arsenic, or any other acrid matter.

James McClurg, William Foushee, James D. McCaw, William Rose, Samuel McCraw, Fleming Russell, William Claiborne, William Price (Register) Nelson Abbott and Taylor Williams,<sup>53</sup> here in Court acknowledge themselves

<div style="font-size: 85%;">
mony, he seems to have been more nearly the family physician to the Wythe household than any of the other physicians whose names occur in records concerning the Chancellor's last illness. To be compared with the recorded testimony of Dr. McClurg and that of Dr. McCaw concerning the autopsy on the body of Michael
Brown is DuVal's letter to Jefferson: "As a Magistrate I requested four eminent Physicians to open the body of the Boy. They did so; from the inflamation on the Stomach & Bowels they said that it was the kind of Inflamation produced by Poison." William DuVal to Thomas Jefferson, [[Jefferson-DuVal Correspondence#William DuVal to Thomas Jefferson.2C 4 June 1806|Jun. 4, 1806]], Jefferson Papers.

<sup>51</sup> William Foushee, M.D., had been born in the Northern Neck in 1749. Like McClurg, he studied medicine in Edinburgh. He served as Richmond's first mayor, 1782-1783, as the town's postmaster for several years, and as the president of its Common Hall or town council for several years. He also served in both the legislative and executive branches of the state government. For many years he presided over the James River Company's internal navigation improvement projects. The General Assembly named him among the charter trustees of the Richmond Academy in 1802. Twenty years later the Medical Society of Virginia elected him its second president. When he died in 1824, he was almost seventy-five years old and was said to have been Richmond's oldest inhabitant. His death evoked an unusually detailed obituary. Christian, ''Richmond'', 57-58, 545; Blanton, ''Medicine in Virginia in the Nineteenth Century'', 75-76; Richmond ''Enquirer'', Aug. 24, 1824.

<sup>52</sup> DuVal reported to Jefferson that William Foushee, James D. McCaw, James McClurg, and two other physicians performed the autopsy on Wythe's body on the day of his death. DuVal stated simply that they found "considerable inflamation in the Stomach," but he added in the same context that it was "strongly suspected" that Wythe and Michael Brown had been poisoned with yellow arsenic by George Wythe Swinney. William DuVal to Thomas Jefferson, [[Jefferson-DuVal Correspondence#William DuVal to Thomas Jefferson.2C 8 June 1806|Jun. 8, 1806]], Jefferson Papers.

<sup>53</sup> It may be highly significant that four of the fourteen witnesses were not
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severally indebted to his Excellency William H. Cabell governor or chief magistrate of the Commonwealth of Virginia, in the sum of one hundred pounds each, of their respective goods and chattels, lands and tenements, to be levied, and to the said governor and his successors, for the use of the said Common- wealth rendered: Yet upon this Condition, that if the said James McClurg, William Foushee, James D. McCaw, William Rose, Samuel McCraw, Fleming Russell, William Claiborne, William Price (Register) Nelson Abbott and Taylor Williams, shall severally make their personal appearance before the Judges of the District Court directed by law to be holden at the Capitol in this City on the first day of the next term of that Court, to give evidence on behalf of the Commonwealth against George W. Swinney, who stands accused of murder, and shall not depart thence without the leave of the said Court, this recognizance is to be void.

(Minutes signed) E: Carrington, Mayor

The depositions of the sixteen witnesses in the two proceedings of June 2 and 23 make Swinney's motives for murder clearer than other contemporary records. Obviously, that troubled knave had tried to solve more than one of his problems at once. By a single desperate deed he might forestall discovery of his forgeries, prevent any resultant reduction or cancellation of the legacy he would receive from Wythe, and claim his inheritance prematurely.

But the second Hustings Court record does not enable us to determine with finality precisely when and how Swinney committed his acts of murder. None of the testimony links arsenic with the coffee served in Wythe's cottage, according to the traditional story of the poisonings, at breakfast on Sunday, May 25. To contrary import are the depositions of Claiborne, McCraw, and Randolph. Their assertions under oath indicate that Swinney had mixed some arsenic with strawberries and that Wythe ate strawberries for supper on Saturday, May 24. Wythe's breakfast coffee may have become the supposed vehicle for the poison on the invalid ground of reasoning of the ''post hoc, propter hoc'' type. Actually, so far as we can tell,

placed under bond to be available to serve as witnesses in the forthcoming trial of Swinney on the charge of murder before the District Court. The four who were exempted from such an obligation were William DuVal, Samuel Greenhow, Edmund Randolph, and Tarlton Webb. While in some respects their testimony before the Hustings Court merely confirmed that of other witnesses, in these respects, and more especially in reference to other observations concerning which others did not testify, the evidence submitted by these four could not be omitted without weakening the case against Swinney.

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he may have consumed poisoned foods at both meals. A fatal dose of arsenic usually produces acute symptoms within about an hour after it enters the human stomach, and death usually follows within one to three days. Wythe's case was not a typical one in the latter respect, and we have scant cause to assume that it was a normal one in the former respect. Fatal dosages of arsenic have been known in rare instances to cause no symptom for as many as twelve hours, particularly if the poison was ad- ministered in solid rather than liquid form and if a full meal was consumed with it; and death has been known to result as much as two weeks after the appearance of symptoms, as it did in Wythe's case. An inexperienced, experimenting Swinney may have underestimated on May 24 the amount of arsenic required to accomplish his premeditated purpose. He may have awaked the next morning to find that his attempt of the previous afternoon or evening had failed. He may then have added a second and larger quantity of arsenic to the breakfast menu. Neither this nor any alternative possibility can be proved conclusively from the available evidence.

More important than questions about details of that sort is the official record's revelation of the limited, inconclusive nature of the physicians' findings in the two autopsies. They did not exhaust every means known to the medical scientists and chemists of their generation to determine whether or not the deaths of Michael Brown and George Wythe had been unnatural ones. One authoritative treatise, for example, published in 1832 but embodying comparatively little that had been learned since 1806, devoted fully a hundred pages to its discussion of arsenic poisoning, forty of them to various definitive tests by which the presence of arsenic can be determined. Its author commented on the ease with which that almost tasteless and odorless chemical element could be procured in various forms and compounds and could be administered surreptitiously. Then he added,

"It is fortunate, therefore, that there are few substances in nature, and perhaps hardly any other poison, whose presence can be detected in such minute quantities and with so great certainty."<sup>54</sup> The inflamed tissues observed by the Richmond doctors were ambiguous. The same kind of examination today would do little more, if any, to pin down positively the cause of such deaths, for gastrointestinal inflammations of quite similar

<div style="font-size: 85%;">
<sup>54</sup> Robert Christison, ''A Treatise on Poisons, in Relation to Medical Jurisprudence, Physiology, and the Practice of Physic'' (2d ed., Edinburgh, 1832), 223. This volume's treatment of arsenic poisoning covers pp. 223-324.
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appearance can result from any of several distinct causes, both natural and unnatural. The Richmond physicians' post-mortem inspections should not have ended short of a few simple laboratory procedures. Standard analyses of that kind would almost certainly have proved beyond question whether or not arsenic had ended the lives of the youthful Michael Brown and the aged George Wythe.

The above testimony in both of the suits of the Commonwealth ''v.'' Swinney confirms an undisputed conclusion reached by all who have ever studied the matter: Wythe himself became fully convinced on his death- bed that Swinney was a forger and a murderer. Yet, in fact, that young man escaped legal punishment for both offenses. His road to freedom was, however, a tortuous one. Sometime during the summer of 1806 the charges against him were referred to a grand jury. It returned true bills. Thus it became the third judicial body to render a verdict of guilt against Swinney on each accusation, for the same conclusion had already been reached on each count by one or more of Richmond's magistrates and by the Hustings Court. Specifically, the grand jury cleared the way for the trial of Swinney by the District Court on each of six distinct indictments—one for the murder of Wythe, another for that of Michael Brown, and four for forgeries of Wythe's name on as many checks.<sup>55</sup>

On September 2, 1806, the District Court proceeded to tackle what the [[Respectfully Dedicated to the Legislature of Virginia|Richmond ''Enquirer'']] termed "the celebrated trial of George W. Sweeney, on the charge of administering arsenic to his great Uncle the venerable George Wythe." Judges Joseph Prentis and John Tyler, Sr., whose son of the same name was destined to become the tenth President of the United States, were the two members of Virginia's General Court assigned to preside over this session in the Richmond district.<sup>56</sup> Presumably, the two judges' judicial robes hid the mourning bands of crape that they and other members of the General Court had resolved to wear on their left arms for three months in tribute to the jurist Virginia had lost.<sup>57</sup> At the

<div style="font-size: 85%;">
<sup>55</sup> There is no record of any decision in regard to the other two checks that William Dandridge and Peter Tinsley had testified were, in the opinions of Dandridge and Wythe, also forged.

<sup>56</sup> [[Richmond Enquirer, 9 September 1806|Richmond ''Enquirer'', Sept. 9, 1806]].

<sup>57</sup> Ibid., Jun. 24, 1806; [[Virginia Argus, 17 June 1806|Richmond ''Virginia Argus'', Jun. 17, 1806]]; Richmond ''Impartial Observer'', Jun. 21, 1806. The Governor and Council had resolved on Jun. 14, "in honour of the deceased," to wear black bands similarly for one month as an "outward Sign of respect to his memory." Journals of the Council of Virginia (MSS. in the Virginia State Library), XXVII, 448. When the Virginia General Assembly convened in Dec., 1806, its members also resolved unanimously to "wear a badge of
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prosecuting attorney's table sat Philip Norborne Nicholas,<sup>58</sup> the popular young Attorney General of Virginia and successful leader in recent years of the Jeffersonian Republican party in the state. Nicholas had known Wythe while the Chancellor had still resided in Williamsburg. More recently they had been associated in various legal and political activities. Presumably, Nicholas had every reason to prosecute the case with all the vigor at his command.

But the shocked, incensed atmosphere of June had doubtless grown calmer by September, and impressive talents had been aligned on Swinney's side as counsel for the defense.<sup>59</sup> One of these lawyers was the same Edmund Randolph who had written the codicil disinheriting Swinney, the same Randolph who had given damaging testimony against him in the Hustings Court. The other lawyer at Swinney's side was the same William Wirt who had expressed a hope that no attorney would be found to defend him, so that he would be left to suffer the fate he deserved.

Wirt had been contemplating at the beginning of the summer a desire to move from Norfolk to Richmond, for his wife found Norfolk's summers unbearable. He had concluded at that distance within a month after Wythe's death that Swinney could conceivably be innocent of murder. Judge William Nelson of the General Court had told him that "there was a difference of opinion" among Richmond doctors as to the cause of the Chancellor's death and that "the eminent McClurg, amongst others, had pronounced that his death was caused simply by bile and not by poison." Then a brother of Swinney's distressed mother had traveled eastward to implore Wirt to serve as an attorney for the defense.<sup>60</sup>

Although Wirt had already decided before that visit that "it would not be so horrible a thing to defend" Swinney "as, at first, I had thought it," the plea made by his uncle posed a problem of conscience and of reputation. By letter Wirt asked his wife, "What shall I do?" And then he proceeded to influence her decision. "If there is no moral or professional impropriety in it, I know that it might be done in a manner which would avert the displeasure of every one from me, and give me a splendid ''debut'' in the metropolis. Judge Nelson says I ought not to hesitate a moment

<div style="font-size: 85%;">
mourning" for one month. Washington, D.C., [[National Intelligencer, 15 December 1806|''National Intelligencer, and Washington Advertiser'', Dec. 15, 1806]].

<sup>59</sup> ''Ibid.''

<sup>60</sup> William Wirt to his wife, Jul. 13, 1806, Kennedy, ''William Wirt'', I, 152-153.
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<blockquote>
to do it; that no one can justly censure me for it; and, for his own part, he thinks it highly proper that the young man should be defended. Being himself a relation of Judge Wythe's, and having the most delicate sense of propriety, I am disposed to confide very much in his opinion."'

The issue was settled within ten days. Nelson reiterated his opinion as to "the perfect propriety of the step." Mrs. Wirt evidently protested that her husband need not fear that she would suffer reproach. "I shall defend young Swinney under your counsel," he wrote her. "My conscience is perfectly clear, from the accounts I hear of the conflicting evidence."<sup>62</sup>

Records of the District Court, in which Randolph and Wirt undertook to save the life of George Wythe Swinney, are not extant; apparently they did not survive the fire that accompanied the Confederate evacuation of Richmond in April, 1865. Only from other sources can we learn whether or not the defense attorneys achieved their goal. The Richmond ''Enquirer'' reported succinctly the results of what was probably a day replete with courtroom drama and legal technicalities. "After an able and eloquent discussion" by counsel for the Commonwealth and for Swinney, read that newspaper's summary, "the jury retired, and in a few minutes, brought in the verdict of ''not guilty''. A similar indictment against him [Swinney] for the poisoning of Michael, a mulatto boy (who lived with Mr. Wythe) was quashed without a trial."<sup>63</sup>

There could have been no doubt whatsoever that Virginia's laws of 1806 defined murder by poisoning, if it were committed by a free person, to be murder of the first degree, punishable by death.<sup>64</sup>Some other ex- planation of the jury's astonishing verdict must be sought. Editor Thomas Ritchie offered his readers one hint why Randolph and Wirt had been able to win a quick decision in favor of their despised client. Some of the "strongest testimony" that had been heard by the Hustings Court and by the grand jury, Ritchie remarked, "was kept back from the petit jury" in the District Court. "The reason is, that it was gleaned from the evidence of negroes, which is not permitted by our laws to go against a white

<div style="font-size: 85%;">
<sup>61</sup> ''Ibid''. Nelson's distant kinship to Wythe was evidently through the second Mrs. Wythe, who had been a Taliaferro. See a copy of the will of Rebecca Cocke Taliaferro of "Powhatan," James City County, Nov. 12, 1810, in the possession of Colonial Williamsburg.

<sup>62</sup> William Wirt to his wife, Jul. 23, 1806, Kennedy, ''[[Life of William Wirt#Page 154|William Wirt]]'', 1, 154.

<sup>63</sup> [[Richmond Enquirer, 9 September 1806|Richmond ''Enquirer'', Sept. 9, 1806]].

<sup>64</sup> the enactments of 1796 and 1803, Shepherd, ''Statutes'', II, 5-14 and 405-406, respectively.
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man."<sup>65</sup> Actually, the reason assigned by the editor would have been more nearly true if he had phrased it more carefully. As far back as 1732 and as recently as 1801 the statutes of Virginia had stipulated that a Negro or a mulatto could be qualified as a witness only in a lawsuit brought against a Negro or a mulatto or by the commonwealth for one.<sup>66</sup> That is why Lydia Broadnax had not told the Hustings Court in June whatever she knew about the involvement of George Wythe Swinney in the deaths of Michael Brown and George Wythe.

The legal disability of Negroes to testify against Swinney had loomed large in people's thinking about the prospective trials of that ingrate for murder ever since Michael had died. Even before William Wirt learned with certainty that Wythe had also been a victim, Wirt had realized that one law might prevent the fulfillment of justice under another. "The chain of circumstances fix the guilt of Sweney beyond reach of doubt," Wirt had then been willing to assert, "but some of those circumstances, material to his conviction in a court of law, depend, it seems, on black persons, & so he will escape for the poison[ings]. he is under prosecution for the forgery & of that must be convicted."<sup>67</sup>

One logical question is answered neither by Ritchie's explanation nor by Wirt's prophecy. Why was any of the evidence that had been admissible in the three previous proceedings—evidence that had resulted in three verdicts of guilt—not presented in the District Court? No record answers that question. Possibly the District Court refused to hear some of the testimony that had been given before the Hustings Court. Evidence given by the white witnesses in June concerning what Negroes had ob-

<div style="font-size: 85%;">
<sup>65</sup> [[Richmond Enquirer, 9 September 1806|Richmond ''Enquirer'', Sept. 9, 1806]].

<sup>66</sup> The exact words of the law of 1801 were: "Any negro or mulatto, bond or free, shall be a good witness in pleas of the commonwealth for or against negroes or mulattoes, bond or free, or in civil pleas where free negroes or mulattoes shall alone be parties." Shepherd, ''Statutes'', II, 300. The statute of 1785 was to the same effect, although its provisions were couched in negative terms and omitted the words "bond" and "free" in each of the five instances of their use in the enactment of 1806. Hening, ''Statutes'', XII (Richmond, 1823), 182-183. Digests of the 1732 and 1748 statutes and of related legislation can be found conveniently in June Purcell Guild, ''Black Laws of Virginia: A Summary of the Legislative Acts of Virginia concerning Negroes from Earliest Times to the Present'' (Richmond, 1936), 154-155.

<sup>67</sup> William Wirt to James Monroe, Jun. 10, 1806, Monroe Papers, vol. XI, no. 1373. Internal evidence in this letter indicates that for the facts he stated Wirt was indebted to a communication written on Jun. 5, 1806, by his brother-in-law, Governor Cabell, and the prophecies Wirt voiced may also have reflected the Governor's thinking as of that date.
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served and had told them may have been ruled inadmissible by Judges Prentis and Tyler because of its Negro source or its hearsay nature. On the other hand, we have no proof acceptable by the ordinary standards of historical criticism that Swinney was acquitted because of the repression of the testimony Lydia Broadnax or other Negroes might have given but for Virginia's laws. Ritchie's allegation about the withholding of testimony "gleaned from the evidence of negroes" remains unsubstantiated, and Wirt's prophecy can be considered to have been merely a recognition of the flimsiness of the circumstantial evidence others would be able to give.

The simple fact remains that no known witness was able to assert in any of the four proceedings that he had actually seen Swinney put poison into food eaten by Michael Brown or by George Wythe. Moreover, no physician is known to have been willing to swear that either of the two autopsies proved that death had been caused by a poison. In other words, the evidence against Swinney was purely circumstantial.

Thomas Ritchie himself had not been hysterical in his attitude toward Swinney during the first days of resentment following the news of the Chancellor's death. The editor had remembered, sanely and circum- spectly, that the accusations against Swinney had not then been proved and that, until and unless they were, he should be presumed innocent. "Every situation in life has its rights and its duties," Ritchie had cautioned his readers. "Let us therefore respect the rights of the accused."<sup>68</sup> If Swinney's two lawyers took advantage in the District Court of every legal technicality to protect their client's rights, Ritchie should have been among the last to imply any criticism of them, for they had placed themselves under obligation to do so.

In any case, George Wythe was dead. Another man's life was at stake. It is the very genius of the legal system Wythe had received from his forefathers and had himself helped to develop and to refine that this second life should not be taken lightly. Since we do not know in detail what transpired in that Richmond courtroom on September 2, 1806, we are left in the position of being forced to accept at face value the jury's final decision, which was that Swinney had not been proved beyond reasonable doubt to have murdered George Wythe and that he was therefore ''not guilty''. Similarly, we must accept the opinion of Attorney General Nicholas that it would have been useless to try to prove beyond reasonable doubt that Swinney had murdered Michael Brown.

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<sup>68</sup> [[Richmond Enquirer, 10 June 1806|Richmond ''Enquirer'', Jun. 10, 1806]].
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Nevertheless, we can record the fact that those jurymen are the only persons known to have expressed at any time in or since 1806 an opinion that Swinney was not a murderer. William Wirt had concluded that Swinney could conceivably be innocent of the charge, but Wirt left no record now extant that he actually believed Swinney to be the victim of an unjust accusation. The common impression throughout the summer of 1806 was that Swinney had committed two premeditated murders. That opinion has remained unchanged to this day.

George Wythe Swinney had escaped death by hanging. It remained to be seen whether or not he would become permanently branded a convicted forger. Within another twenty-four hours he received a tentative answer to this second question. On Thursday, September 3, 1806, he was adjudged guilty on two of the forgery indictments.<sup>69</sup> But these verdicts were not allowed to stand unquestioned. Within ten days William Wirt pleaded successfully, "in an eloquent and ingenious speech" addressed to Judges Prentis and Tyler of the District Court, for arrest of judgment. Wirt's objections were considered acceptable by the two judges and were referred to the next session of the General Court for approval or rejection.<sup>70</sup> Wirt had changed his mind since his assertion in June that Swinney would doubtless be convicted of the forgery charges.

Someone else had come earlier than Wirt to the conclusion that the laws of Virginia would not justify inflicting punishment on Swinney for having obtained certain things of value at the state's bank by using forged signatures. Indeed, former Governor Page had decided in June that what Swinney had done at the Bank of Virginia was a crime only against God, not against any law of the Commonwealth of Virginia. "As to this young Man's Forgeries," Page had commented in highly moralistic vein but with a practical twist, "when religion is out of the way, I can see nothing in our law, that could restrain him, or any one else from a free exercise of that lucrative Employment. But for a sense of religion, I myself could not have done a better act for the Benefit of my Wife & Children, than to have . . . died . .. consoled with the pleasing reflection that I had handsomely provided for my Family, in a way permitted, nay chalked out by our Laws." <sup>71</sup>

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<sup>69</sup> [[Richmond Enquirer, 9 September 1806|''Ibid.'', Sept. 9, 1806]].

<sup>70</sup> Richmond ''Virginia Gazette, & General Advertiser'', Sept. 13, 1806.

<sup>71</sup> Page's letter continued: "I could, if under no religious impressions, tell my Wife & Children, that no one would think the worse of them for what I had done; and indeed that they would always be respected in proportion to their riches, and
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Could it be true, as Page thought he perceived, that Swinney had violated no law by his use of counterfeited signatures of George Wythe? Almost entirely so, declared the General Court in two quite technical opinions on November 17, 1806, with Judges Francis T. Brooke, Paul Carrington, Jr., Hugh Holmes, Archibald Stuart, John Tyler, Sr., and Robert White on the bench. They learned that the District Court's jury had convicted Swinney on an indictment for having obtained from the Bank of Virginia on May 27, 1806, a ''banknote'' for $100. In order to do so, he had presented to William Dandridge both a counterfeited letter and a forged check purporting to have been written and signed by Wythe. But the judges also heard that the arrest of judgment had been awarded on the ground that the forgeries of which Swinney had been accused did not actually constitute offences against a Virginia statute enacted in 1789, which was the only law the forgery indictments against him had contrived to mention.<sup>72</sup>

For one thing, William Wirt had argued that the 1789 law "was intended to punish a pre-existing evil" and could not possibly have reference to any bank, since no bank was established in Virginia until "many years" later. In the second place, Wirt contended that the law's phraseology, as well as its date, precluded any possibility of its being applied to the Bank of Virginia. The statute made illegal any deceitful deed, bill of sale, or other such document that would result in the robbery of one or more "private individuals." The bank could not properly be considered a

<div style="font-size: 85%;">
that both I and they would have been despised had I left them poor—that therefore the riches I had acquired for them would secure them respect in this World, and that as to any other, they need not trouble themselves about it—that they ought to enjoy their hearts desire in all things, and say 'let us eat & drink for tomorrow we die.' . . . But believing as I do in a divine revelation, I had rather perish with my Wife & Children through absolute Want, than that any one of us, should do one unjust or dishonest Act." John Page to St. George Tucker, Jun. 29, 1806, Tucker- Coleman Papers.

<sup>72</sup> The law that Swinney was alleged by the indictment to have broken had been adopted on Nov. 18, 1789. It was entitled "An act against those who counterfeit letters or privy tokens, to receive money or goods in other men's names." It provided that "if any person or persons, shall falsely and deceitfully obtain or get into his or their hands or possession, any money, goods or chattels of any other person or persons, by colour and means of any such false token or counterfeit letter, made in any other man's name as is aforesaid; every such person and persons so offending, and being thereof lawfully convicted in the court of the district, in which such offence shall have been committed," shall be subject to a maximum term of one year in prison and to "setting upon the pillory." Hening, ''Statutes'', XIII (Philadelphia, 1823), 22.
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"person or persons" within the meaning of the law. It was "a body corporate, an ideal body," and "no more a person, than the commonwealth of Virginia." Anything, therefore, that Swinney had obtained from the bank could not have been procured in violation of a law that made punishable the getting by false means of "any money, goods or chattels of any other person or persons." And in the third place, Wirt argued, what Swinney had received was not part of "the money or goods of the said George Wythe, because having been delivered under a check not drawn by him, the bank hath no right to charge it to his account."

In connection with the ''banknote'' in question under the first indictment, the General Court found Wirt's claims convincing enough. Its judges concluded that they should grant a permanent arrest of judgment. Thus they reversed the petit jury's verdict that Swinney was guilty; thus they pronounced him innocent of the crime alleged to have occurred on May 27. While Wythe lay on his deathbed that Tuesday, Swinney had perpetrated a forgery, but it was not an unlawful forgery.

The other indictment under which the District Court had found Swinney guilty of a violation of the same statute was quite similar to the first. The second differed in only one significant particular. It involved $50 that Swinney had obtained from the bank by the same means on April 11, 1806, in the form of ''currency''. Wirt's appeal in the District Court for an arrest of judgment had been won on the same three grounds, and they were pleaded anew as sufficient cause for making the temporary ban against sentence upon Swinney a permanent one.

In this instance the General Court did not agree. It refused to accept Wirt's argument that the "''money current''" Swinney had gotten at the bank in April could not properly be charged against the account of Wythe, by virtue of the forged check, and was therefore not Wythe's money until Swinney had acquired possession of it falsely. Evidently, Virginia's supreme tribunal for criminal law decided that neither of Wirt's first two points was valid in respect to either indictment and that the validity of Wirt's third contention depended entirely upon the natures of the two kinds of property the forger had received. In other words, the six judges' two decisions meant, essentially, that the promissory ''banknote'' Swinney obtained on May 27 had not been Wythe's "money, goods or chattels" but that the ''currency'' involved in the similar transaction of April 11 had been. If this distinction seems subtle, thin, and flimsy, it appears to have been not more so than whatever reasoning persuaded the judges to ignore
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<blockquote>
Wirt's assertions that the 1789 law was not at all pertinent to the later means of "getting something for nothing" upon which an unconsciously clever forger had stumbled. The chagrined John Page, who had been Governor of Virginia when the state bank was established, had believed on June, 1806, that none of Swinney's forgeries was illegal. Page had been much disconcerted by his discovery that the commonwealth had not foreseen and had not prohibited such misuses of another's signature. The General Court, on the other hand, professed to believe that one of Swinney's forgeries had inadvertently violated a law more than fifteen years old and obviously designed to curb other frauds wrought by means if forgery. Consequently, the court decreed that punishment should be imposed upon Swinney under the second indictment by the District Court.<sup>73</sup>

Nevertheless, according to a report derived from official records that are not now extant, the District Court did not execute its sentence, which was that Swinney should spend one hour in the pillory at Richmond's public market and six months in prison. Contrary to the General Court's decree and for reasons inexplicable today, the District Court is said to have granted Swinney a second trial on the indictment the higher court had upheld, and then the attorney for the commonwealth declined to prosecute the case.<sup>74</sup>

Thus freed, technically at least, of all charges against him, but with a reputation he would never be able to live down locally, the "unfortunate" Swinney "then sought refuge in the West, where his career was brought to a premature and miserable close."<sup>75</sup> So reads one account, written about the middle of the nineteenth century, of the end of the life of

<div style="font-size: 85%;">
<sup>73</sup> William Brockenbrough and Hugh Holmes, ''[[Commonwealth against George Wythe Swinney|Collection of Cases Decided by the General Court of Virginia, Chiefly Relating to the Penal Laws of the Commonwealth, Commencing in the Year 1789 and Ending in 1814, Copied from the Records of Said Court, with Explanatory Notes]]'' (Philadelphia, 1815), 146-151.

<sup>74</sup> Minor, "[[Memoir of the Author]]," in Wythe, ''Decisions'', xxviii. In a footnote on that page Minor asserted: "The records of these proceedings [in the District Court after the return to it of the decree of the General Court in the last of tie suits of the Commonwealth v. Swinney] have been consulted in the office of tie Superior Court of Law for Henrico County." Minor wrote those words in or before 1852. Presumably, reorganizations of Virginia's judicial system between 1806 and 1852 account for the fact that records of the District Court in Richmond for its Apr., 1807, term (the first session it was scheduled to have after the Nov., 186, term of the General Court) had come by 1852 into the custody of the Superior Court of Law for Henrico County. The fire in Richmond during April 2-3, 1865, apparently explains their disappearance.

<sup>75</sup> ''Ibid''.
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the young man to whom George Wythe had been "kinder than a Father."<sup>76</sup> According to the memory of another Richmonder fifty years after George Wythe Swinney had been a defendant in the capital's courtrooms, Swinney went to Tennessee, stole a horse, served a term in a penitentiary, and was "then lost sight of."<sup>77</sup> The forgeries that preceded and led directly to the death of George Wythe may not have been plainly and provably crimes against the Commonwealth of Virginia. But they served one useful purpose, for they pointed out a glaring loophole in Virginia's laws. The state acted promptly to plug that gap. On the last day of the same year the General Assembly adopted and put into immediate effect "An ACT to punish certain thefts and forgeries." That law clearly defined as a crime every deed by which any person should "fraudulently obtain, or aid or assist in obtaining from the Bank of Virginia, or any of its offices of discount and deposit, any bank or post note, or money, by means of any forged or counterfeit check or order whatsoever, knowing the same to be forged or counterfeited." Violators of the new statute, when they were properly found guilty in court, were to be imprisoned for "not less than two, nor more than ten years."<sup>78</sup>

In the final analysis, we may guess, George Wythe Swinney escaped death on the gallows because of three considerations. One of these seems to be the forgiveness Wythe himself gave him. That could not alter one whit Swinney's legal liability to pay the penalty for murder, but it may have influenced, both consciously and unconsciously, the men who prosecuted and defended Swinney, those who testified, the judges who decided what evidence was admissible, and the twelve "good men and true" who retired to a jury room in the September trial. A second determining factor probably was the failure of the physicians to perform complete autopsies and thus to be prepared to assert unequivocally on the witness stand that, in their professional judgments, the deaths of Michael Brown and George Wythe had been caused by arsenic poisoning. Such testimony would have become, quite possibly, the "clincher" that would have strengthened the

<div style="font-size: 85%;">
<sup>76</sup> William DuVal to Thomas Jefferson, [[Jefferson-DuVal Correspondence#William DuVal to Thomas Jefferson.2C 4 June 1806|Jun. 4, 1806]], Jefferson Papers.

<sup>77</sup> Dove, "[[Memoranda Concerning the Death of George Wythe|Memoranda]]." Although Minor accepted Dr. Dove's recollections they are so untrustworthy in matters that can be checked that the unsubstantiated statements concerning Swinney's life after he escaped the clutches of the law in Richmond made by both Dove and Minor must be considered traditionary rather than supported by valid evidence.

<sup>78</sup> Shepherd, ''Statutes'', III, 289.
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web of circumstantial evidence against Swinney enough to put a knotted rope around his neck. A third presumed factor was inherent in Anglo-American jurisprudence. The doctors and other Virginians who participated as witnesses, attorneys, jurymen, and judges in Swinney's final trial for murder were honorable men. They cleared him of the accusation because, evidently, they thought it important to save the life of a young man who ''might'' be innocent, although he certainly seemed not to be. George Wythe himself would doubtless have had the same respect for the legal principle of a reasonable doubt.

Did Virginia justice suffer a miscarriage in 1806? For want of complete records, we cannot properly lift our second-guessing voices to cry that it went wrong. But we can agree heartily with the opinion held by Wythe himself and never relinquished by most of his sympathetic but straightforward contemporaries—the belief that, by every standard other than the technical ones of the law, Swinney had assuredly done serious wrongs. Like Wythe's survivors, we can only take comfort in the fact that Virginia justice may have avoided adding another wrong to Swinney's and in the fact that his chief victim, Chancellor Wythe himself, the "Virginia Socrates" and the "American Aristides," had achieved on his deathbed, by revoking his generous bequests to Swinney, one final act of obvious equity.
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==See also==

*[[Commonwealth against George Wythe Swinney]]
*[[Honest Lawyer]]
*[[Hustings Court Minutes]]
*[[Hustings Court Order Book]]
*[[Jefferson-DuVal Correspondence]]
*[[Life of William Wirt]]
*[[Memoir of the Author]]
*[[Memoranda Concerning the Death of Chancellor Wythe]]
*[[Murder of George Wythe]]
*[[National Intelligencer, 15 December 1806]]
*[[Richmond Enquirer, 8 July 1806]]
*[[Richmond Enquirer, 10 June 1806]]
*[[Richmond Enquirer, 9 September 1806]]
*[[Virginia Argus, 10 June 1806]]
*[[Virginia Argus, 17 June 1806]]
*[[Virginia Argus, 25 June 1806]]
*[[Virginia, June General Court, 1806]]

==References==
<references/>

==External links==

[[Category:Biographies (Articles)]]
[[Category:Murder of George Wythe]]

Examinations of George Wythe Swinney for Forgery and Murder

2015-04-24T14:13:10Z

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{{DISPLAYTITLE:"Examinations of George Wythe Swinney for Forgery and Murder: A Documentary Essay"}}
[[File:WilliamAndMaryQuarterlyOctober1955Wythe.jpg|thumb|right|400px|Engraved portrait [[George Wythe]] by [[Depictions of Wythe|J.B. Longacre]], from the ''William and Mary Quarterly,'' 3rd ser., 12, no. 4 (October 1955), 512.]]

Wythe scholar W. Edwin Hemphill contributed to a special issue of ''The William and Mary Quarterly'', dedicated to the murder of [[George Wythe]], in October, 1955. The issue was published in accordance with the Marshall-Wythe celebration at the [http://law.wm.edu/ College of William & Mary Law School] on September 25, 1954, for the bicentennial of [[John Marshall|John Marshall's]] birth. The journal pairs Hemphill's essay on "[[Media:HemphillExaminationsOfGeorgeWytheSwinneyOctober1955.pdf|Examinations of George Wythe Swinney for Forgery and Murder]],"<ref>W. Edwin Hemphill, "Examinations of George Wythe Swinney for Forgery and Murder: A Documentary Essay," ''William and Mary Quarterly'' 3rd ser., 12, no. 4 (October 1955), 543-574.</ref> with another by [[wikipedia:Julian P. Boyd|Julian P. Boyd]], "[[Murder of George Wythe]]."<ref>Julian P. Boyd, "[[Media:BoydMurderOfGeorgeWytheOctober1955.pdf|The Murder of George Wythe]]," ''William and Mary Quarterly'' 3rd ser., 12, no. 4 (October 1955), 513-542.</ref> Hemphill had rediscovered witness testimony given for [[Death of George Wythe#Sweeney's Trial|Sweeney's murder trial]] in 1806, and both authors made use of this new information.

Hemphill and Boyd's work was published as a pamphlet reprint the same year, under the title: [https://catalog.swem.wm.edu/law/Record/343766 ''The Murder of George Wythe: Two Essays''] (Williamsburg, VA: [https://oieahc.wm.edu/ Institute of Early American History and Culture,] 1955).

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==Article text, October 1955==
===Page 543===

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'''Examinations of George Wythe Swinney<br />for Forgery and Murder: A Documentary Essay'''<br />W. Edwin Hemphill*
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“I SHUDDER when I think of it." Thus wrote [[wikipedia:John Page (Virginia politician)|John Page]] three weeks after the death of [[George Wythe]] in Richmond on June 8, 1806.<sup>1</sup> Less than a year and a half had elapsed since a "numerous concourse" of Jeffersonian Republicans had gathered at the Washington Tavern in the capital on March 4, 1805, to celebrate the second inauguration of [[Thomas Jefferson]] as the President of the United States. On the joyous occasion of the party's victory banquet Governor Page had asked Judge Wythe to retire and had then proposed a volunteer toast to "George Wythe, distinguished alike for his wisdom and integrity as a magistrate, and his zeal and disinterestedness as a patriot." The tavern's hall had resounded with nine cheers—as many as were given in response to any prearranged or spontaneous toast, even that to the President himself.<sup>2</sup> Nine months later Page had retired from the governorship.

As he sat at his writing desk late in June, 1806, amid the peace and security of "Rosewell," his magnificent home in Gloucester County, John Page reflected upon the saddening, disheartening news he had heard during a recent trip to Richmond. [[William DuVal]], George Wythe's nearest neighbor, had told Page how their mutual friend had suffered and had died—and how very suspect certain circumstances preceding that death seemed. But nothing had yet been proved. So the circumspect Page scribbled to another friend an outburst that was more a sermon than a digest of the evidence. "I know only enough" about the "horrid tale," he remarked in his letter to St. George Tucker, one of Wythe's students and the judge who had succeeded Wythe in the chair of law in the College

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* Mr. Hemphill is Managing Editor of ''Virginia Cavalcade'' and a member of the staff of the Virginia State Library. These depositions were discovered by Mr. Hemphill and are now printed for the first time in this issue of the ''Quarterly''.

<sup>1</sup> John Page to [[St. George Tucker]], Jun. 29, 1806, Tucker-Coleman Papers, Colonial Williamsburg.

<sup>2</sup> Richmond ''Enquirer'', Mar. 8, 1805.
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[[File:BoydHemphillMurderOfGeorgeWytheTwoEssays1955.jpg|thumb|right|400px|Title page from Boyd and [[Examinations of George Wythe Swinney for Forgery and Murder|Hemphill's]] pamphlet reprint, [https://catalog.swem.wm.edu/law/Record/343766 ''The Murder of George Wythe: Two Essays''] (Williamsburg, VA: Institute of Early American History and Culture, 1955).]]
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of William and Mary, "to shock my Soul." But the former Governor could not forbear comment along other lines. The murder of Chancellor Wythe, he exclaimed, made him "feel for humanity—and the wounded honor of my Country!"<sup>3</sup>

[[wikipedia:William H. Cabell|Governor William H. Cabell]], Page's successor, was also distressed. He reminded one of his sisters-in-law of their experience when they had visited a Miss Nelson, who had then been living in the modest Richmond home of her uncle, the widowered, scholarly Chancellor. "She and all of us were almost children, and few grown men would have found any interest in staying in the room where we were. But the good old gentleman brought forth his philosophical apparatus and amused us by exhibiting experiments, which we did not well comprehend, it is true, but he tried to make us do so, and we felt elevated by such attentions from so great a man."<sup>4</sup>

The up-and-coming [[wikipedia:William Wirt (Attorney General)|William Wirt]], who had served for a year in a judicial office coordinate with that of the victim,<sup>5</sup> wrote from Norfolk to [[wikipedia:James Monroe|James Monroe]], who was abroad, in indignant terms about the "dose of arsenick administered" to "poor old Chancellor Wythe."<sup>6</sup> Five weeks later Wirt could assure his absent wife, "I dare say you have heard me say that I hoped no one would undertake the defence of [the accused, George Wythe] Swinney, but that he would be left to the fate which he seemed so justly to merit."<sup>7</sup>

The editor of a Richmond newspaper was upset enough to describe his news announcement of the death as a "painful task."<sup>8</sup> An editor in Raleigh, North Carolina, was told "by a gentleman lately from Rich-

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<sup>3</sup> John Page to St. George Tucker, Jun. 29, 1806, Tucker-Coleman Papers.

<sup>4</sup> William H. Cabell to Mrs. William Wirt (undated), quoted in John Pendleton Kennedy, ''[[Life of William Wirt#Page 151|Memoirs of the Life of William Wirt, Attorney General of the United States]]'' (Philadelphia, 1849), I, 151-152. Hereafter cited as Kennedy, ''William Wirt''.

<sup>5</sup> Ambitious for wealth, Wirt found his position as judge of the Superior Court of Chancery for the Eastern District irksome, its salary barely adequate in view of his second marriage, which took place in September, 1802. It "is possible," he observed wryly, "that I may, like Mr. Wythe, grow old in judicial honors and Roman poverty. I may die beloved, reverenced almost to canonization by my country, and my wife and children, as they beg for bread, may have to boast that they were mine." [[Life of William Wirt|William Wirt to Dabney Carr]], Feb. 13, 1803, ''ibid.'', 95. In May, 1803, Wirt returned to the practice of law as an attorney, with his residence and headquarters in Norfolk. ''Ibid.'', 87-101.

<sup>6</sup> William Wirt to James Monroe, Jun. 10, 1806, Monroe Papers, vol. XI, no. 1373, Library of Congress.

<sup>7</sup> William Wirt to Elizabeth Gamble Wirt, Jul. 13, 1806, Kennedy, ''[[Life of William Wirt#Page 152|William Wirt]]'', 1, 152-153.

<sup>8</sup> [[Virginia Argus, 10 June 1806|Richmond ''Virginia Argus'', Jun. 10, 1806]].
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mond" about the crime and was thus enabled to "scoop" the world by publishing the first printed details, albeit inaccurate ones, of the "circumstances of this horrid transaction."<sup>9</sup> Newspapers as far away as Boston recorded its effect.<sup>10</sup> Richmond's press devoted an apparently unprecedented amount of space to the modest, touching, but reserved funeral oration by [[William Munford]]<sup>11</sup> and to laudatory tributes received as anonymous communications to the editors; the total aggregated what seems to have been more column inches of eulogy than had been elicited in Virginia newspapers by the death of George Washington or by that of any other person.<sup>12</sup>

Washington's imaginative, opportunistic biographer, Mason Locke Weems, seized upon news that had "quite galvanized" the "very young and tender hearted" in Charleston, South Carolina, as excuse enough for a discursive essay. That itinerant book-peddler described himself as "getting now to be a little oldish . . . , and daily, as becomes a stranger in Charleston, at this season, looking out for a squall of the same sort." Weems viewed with equanimity the fact that "death, by a touch of his old thresher, with equal ease, brings down a Chancellor or a cherry." He professed no grief over the death of the Virginian he portrayed as "[[Honest Lawyer|The Honest Lawyer]]." On the contrary, the effusive "Parson" enjoined joy "that this veteran of the law, after a life of glorious toil, to revive the golden age of justice on earth, was returned to the high courts of heaven-not

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<sup>9</sup> Raleigh, N. C., ''Minerva'', Jun. 16, 1806.

<sup>10</sup> Boston, Mass., ''Gazette'', Jun. 19, 1806, and ''Columbian Centinel'', Jun. 21, 1806.

<sup>11</sup> After the death of Wythe's second wife in 1787, William Munford (1775-1825) had lived in Wythe's home in Williamsburg and had been a special object of Wythe's generous attentions to youth. Grateful, Munford named his oldest child George Wythe Munford "after my old friend and benefactor the Chancellor." William Munford to his sister-in-law, Mrs. Mary R. Preston, Jan. 10, 1803, Munford- Ellis Papers, Duke University Library. Munford, his heart "torn with sorrow," then accepted the Council of State's assignment to preach the funeral oration, partly because "the ties of gratitude to that best of men, for the extraordinary kindness he ever manifested towards me, ought to prohibit my suffering him to go to his grave without an Eulogy." William Munford to Governor William H. Cabell, Jun. 8, 1806, Executive Papers, Virginia State Library. The funeral oration by Munford was printed in its entirety by two Richmond newspapers: Richmond ''Enquirer'', Jun. 13 and 17, 1806; Richmond ''Virginia Argus'', Jun. 17, 1806.

<sup>12</sup> See issues of the ''Enquirer'', the ''Impartial Observer'', the ''Virginia Argus'', and the ''Virginia Gazette, & General Advertiser'' during the first three or four weeks after Jun. 8, 1806. The author's comparison is based upon impressions rather than upon actual counts of the space allotted by Richmond editors to obituaries, eulogies, etc., for Wythe and for such other distinguished citizens as George Washington, who had died in 1799, and Edmund Pendleton, who had died in 1803.
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pale and trembling . . . , wet with widows' tears, and blood of murdered patriots, to meet the tear-avenging God; but bright in conscious integrity, with hands pure as the sweet palms which press the alabaster bottles of life, and in robes of innocence, snow-white as those that angels wear, to meet the smiles of the Judge Supreme, and the acclamations of brother saints innumerable."'<sup>13</sup>

Celebrants of the Fourth of July in 1806 drank toasts to the memory of George Wythe.<sup>14</sup> Restricted to severe brevity by that social form of tribute, those who gathered for the Fourth at Lexington, Kentucky, remembered Wythe simply as "a faithful labourer in the vineyard of the republic."<sup>15</sup> There the orator of the day was Henry Clay, who until his own death remained proud of the fact that he had been associated with Wythe's court during the 1790's. Indeed, young Clay had been the amanuensis who transcribed for publication the Chancellor's annotated decisions, confusingly peppered though they were with Greek phrases Clay had been able neither to understand nor to write well.<sup>16</sup> Saddened by the news that had plunged Richmond into mourning (news that had just reached Lexington), Clay made his address "short and impressive."<sup>17</sup>

The sense of revulsion felt throughout the country crossed party lines as well as state lines. A Federalist organ in the nation's largest city copied from the Richmond ''Enquirer'' two paragraphs of Republican editor Thomas Ritchie's shocked obituary. To those paragraphs it appended the Petersburg, Virginia, ''Republican's'' pointed comment: "It is generally believed, that this patriot, has been brought to the grave, by means, the 'most foul, base and unnatural,' and that the accused is to undergo an examination."<sup>18</sup> Even a modern interpreter of the Old Dominion cites the felony as the worst example of the cussedness—or something worse—

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<sup>13</sup> M. L. Weems, "[[Honest Lawyer|The Honest Lawyer: An Anecdote]]," Charleston, S. C., ''Times'', Jul. 1, 1806.

<sup>14</sup> [[Richmond Enquirer, 8 July 1806|Richmond ''Enquirer'', Jul. 8, 1806]].

<sup>15</sup> Lexington ''Kentucky Gazette'', Jul. 5, 1806.

<sup>16</sup> Henry Clay to B. B. Minor, May 3, 1851, printed in Benjamin Blake Minor, '[[Memoir of the Author]]," in George Wythe, ''Decisions of Cases in Virginia, by the High Court of Chancery, with Remarks upon Decrees, by the Court of Appeals, Reversing Some of Those Decisions'' (2d ed., B. B. Minor, ed., xxxii-xxxvi. Richmond, 1852), Hereafter cited as Wythe, ''Decisions''.

<sup>17</sup> Bernard Mayo, ''Henry Clay, Spokesman of the New West'' (Boston, 1937), 208-209.

<sup>18</sup> Philadelphia, Pa., ''Poulson's American Daily Advertiser'', Jun. 17, 1806. This newspaper attributed the remark to the Petersburg ''Republican'' of an unspecified date.
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that she attributes to Virginians.<sup>19</sup> The murder of George Wythe took at the time top or high rank among the state's most heinous crimes. It still does.

Inevitably, the revolting affair created quite a stir, for people ''will'' talk. Throughout the week before the prostrated Wythe's last breath set the bells of Richmond a-tolling, his death was a foregone conclusion. People marveled that a man of his age could so long survive the excruciating agonies of so insidious and lethal a poison. While Wythe still suffered, strong suspicion was aroused. Circumstances and tangible evidence converted suspicion into conviction at least seven days before the poison produced its ultimate effect upon the Chancellor's strong constitution.

The suspect was as undoubted as was the conclusion that Wythe was a victim of premeditated murder by means of arsenic. Invariably the slayer was identified as the venerable patriot's teen-aged grandnephew and namesake, George Wythe Swinney, an ingrate who had already proved himself unworthy of the home and education he had enjoyed for several years under the hip roof of the Chancellor's unpretentious cottage. Had not that young reprobate stolen books and money from his too-trusting benefactor? Had he not forged checks against his patron's bank account? And had it not been generally known, doubtless by Swinney himself, that he was the chief heir to Wythe's estate, a modest one but doubtless large enough to provide some relief to a culprit in financial difficulties? So, people said, he had placed his fatal dose in the breakfast coffee served in the unsuspecting household on Sunday morning, May 25. Immediately after that meal the good old judge and two freed Negroes had become critically ill. Lydia Broadnax, the Chancellor's faithful cook and servant, recovered. Michael Brown, the mulatto lad to whom Wythe had personally been giving a classical education—Greek and all—as a practical experiment in testing and developing the intelligence of Virginia's other race, had died on the next Sunday, June 1. The Chancellor himself lived in torment—and perhaps toward the end in a merciful coma—through a second week, but he died on the second Sunday morning, June 8. Fortunately, however, he did not expire before he had altered his will to disinherit the villainous Swinney.

Such is the traditional account of the death of Wythe—a paraphrase expanded to greater length than any known to have been written within the next two weeks, doubtless shorter than many conversational versions

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<sup>19</sup> Virginia Moore, ''Virginia Is a State of Mind'' (New York, 1943), 190-191.
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of the time, and certainly embodying the contemporary explanations of the timing, the method, and the motive of the murderer of Michael Brown and George Wythe.<sup>20</sup> This story of the baneful circumstances has persisted ever since 1806. In its retellings it has undergone normal embellishments and amendments. Developments not fully understood when they occurred gave the tale a poor foundation at the start. The recollections of its original narrators grew more and more subject to error with the passing years. Family traditions, transmitted orally, added details and supplied conversations that seem more logical than they are trustworthy. Fanciful emphases and interpretations have been born of assumptions, not of research.

The only substantial modification, however, has been a pronounced tendency to portray the poisoning of Wythe as an accident, while that of Michael Brown has remained the result of intentional murder. This alteration cannot be traced backward beyond 1850. It stems from two sources that were not independent of each other. One was the quite faulty memory of Dr. John Dove of Richmond, who claimed in 1856 that he had been "[[Memoranda Concerning the Death of Chancellor Wythe|present during the sickness & death of Judge Wythe]]." Dove alleged that the Chancellor had been ill before May 25, 1806, and that Swinney had not expected him to eat breakfast that Sunday morning where the poisoned coffee was to be served. The other source was Benjamin Blake Minor, editor of the ''Southern Literary Messenger'', who contributed a biographical sketch to the second edition of the Chancellor's ''Decisions'' (1852). Minor talked with Dr. Dove, who undoubtedly told him something to the effect that Swinney had "vowed vengeance" only against the mulatto boy; and

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<sup>20</sup> Evidently the earliest summaries of the circumstances now extant are in the reliable letters written by William DuVal to Thomas Jefferson on [[Jefferson-DuVal Correspondence#William DuVal to Thomas Jefferson.2C 4 June 1806|Jun. 4 and 8]], preserved in the Jefferson Papers, Library of Congress. Neither attributes to the poisonings a plain method or motive. The earliest written statement as to motivation and method is apparently to be found in the letter of Jun. 10, 1806, from William Wirt in Norfolk to James Monroe, Monroe Papers, vol. XI, no. 1373. That letter was written before Wirt had learned of Wythe's death. Internal evidence in Wirt's letter indicates that the allegations it relayed were based exclusively on information written on Jun. 5, in a letter that has not been found, by Governor William H. Cabell, his brother-in-law. A later account is in the brief, less specific recollection recorded by Littleton Waller Tazewell, who wrote that "it was generally believed" that Wythe's death "was produced by poison, administered in his coffee, by a reprobate boy, a relation of his who he had undertaken to educate, and who was afterwards convicted of having committed many forgeries of checks in his patrons name." "Sketches of his own family, written by Littleton Waller Tazewell, for the use of his children. Norfolk. Virginia. 1823" (MS. in the Virginia State Library), 121.
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Minor found what seemed to him to be sufficient substantiation in Wythe's will and two of its codicils, which made Swinney the residuary legatee of bequests to Michael Brown.<sup>21</sup> Until now the only serious analysis of the traditional account of Wythe's death and of the Dove-Minor misinterpretation has been that of Julian P. Boyd. His lucidly reasoned booklet on ''[[Murder of George Wythe|The Murder of George Wythe]]'' assayed them chiefly by the test of comparison with information found in seven previously unexploited letters written in 1806 to President Jefferson by Wythe's intimate friend and executor, William DuVal.<sup>22</sup>

But other and even better contemporary records are also extant, and it is good that the ''William and Mary Quarterly'' affords space in this issue both for them and Dr. Boyd's thoughtful interpretation, now relatively unavailable. Chief among these additional documents are official court records of the preliminary trials of George Wythe Swinney for forgery and murder. Like pirates' gold buried in a forgotten pit, they lay neglected through more than a century and a quarter despite recurrent curiosity about Wythe's tragic death. These legal records, discovered by the present writer a number of years ago and now published for the first time, contain precious nuggets of authentic information. They include digests of the sworn testimony of sixteen witnesses for the prosecution against Swinney. They add up to a convincing indictment of him. The discovery was made in the office of the Clerk of the Hustings Court of the City of Richmond,<sup>23</sup> where the documents lay within the

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<sup>21</sup> Both of the phrases quoted above are from Dr. Dove's recorded recollections, which are replete with provable errors and must be considered wholly suspect. "[[Memoranda Concerning the Death of Chancellor Wythe|Memoranda concerning the death of Chancellor Wythe]]—Signed in the Aut[o]-g[rap]h. of T[homas]. H. Wynne and rec'd by him from Dr. John Dove, Sept. 16, 1856," MS. in the Brock Collection, Henry E. Huntington Library and Art Gallery. Hereafter cited as Dove, "Memoranda." For evidence that John Dove, M.D., was a Richmond practitioner from about 1822 to about 1852, see Wyndham B. Blanton, ''Medicine in Virginia in the Nineteenth Century'' (Richmond, 1933), 48, 76, 91, 238, 240. For evidence that Dove influenced Minor directly, see Minor, "[[Memoir of the Author]]," in Wythe, ''Decisions'', xxvii.

<sup>22</sup> Julian P. Boyd, ''[[Murder of George Wythe|The Murder of George Wythe]]'' (Philadelphia, 1949).

<sup>23</sup> Binder's title "[[Hustings Court Order Book|Order Book No. 6, 1804-1806]]," 464-465, 482-488. Rough drafts of the records for these two cases of the Commonwealth v. Swinney—drafts identical to the final ones in every important respect—can be found in the same office in the volume given the binder's title of "[[Hustings Court Minutes|Minutes No. 3, 1802-1806]]" (MS. with pages not numbered) under dates of Jun. 2 and 23, 1806, respectively. Microfilm copies of both the Minute Book and the Order Book are available in the Virginia State Library. The final drafts of the two documents have been transcribed from the Order Book for publication below.
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domain of the very court to which the laws of Virginia prevailing in 1806 required that such an offender in Richmond as Swinney should be brought first for any trial of which an official record would have been kept. When Richmond had been incorporated in 1782, it was made a unit of local government. The General Assembly had provided by law for the annual election of twelve citizens to serve in their spare time as municipal officials. Half of them were to constitute a legislative Common Council. The remaining six—a mayor, a recorder, and four aldermen—were commanded "to hold a court of hustings" each month. Its jurisdiction in Richmond corresponded to that of a county court within county boundaries. Each of the judges of the Hustings Court had been vested with the powers of a justice of the peace, and they had been specifically assigned the duty "of examining criminals for all offences committed within the limits of the said corporation." If they found a defendant guilty of a serious crime, they were to refer him to a higher court for trial before professional judges and a jury.<sup>24</sup> These governmental and legal arrangements for the preservation of law and order had been modified only slightly in later statutes, but a law of 1803 had increased the membership of the Common Council to fifteen and that of the Hustings Court to nine, doubtless in recognition of Richmond's growth to a population of more than five thousand.<sup>25</sup> We shall find that not all of our questions are answered by these documents, but no searcher for the treasure-trove could reasonably have expected it to be so rich. Yet it multiplies by many times the amount of contemporary data at our disposal. It enables us to confirm some details reported unofficially at the time and to correct others. It supplies us with vivid portraits of a gloomy, wicked, and yet remorseful youth; of the last days of a questioning, then convinced, and ultimately forgiving victim; of the anxious solicitude and growing outrage of the latter's friends; and of their transition from innocent acceptance of his serious illness as a natural thing to mounting suspicion, relatively thorough investigation, and distressing proof of the poisoner's guilt. Coupled with our greater knowledge of toxicology and with other contemporary records not utilized

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<sup>24</sup> William Waller Hening, compiler, ''The Statutes at Large ... of Virginia . . .'' (Richmond, Philadelphia, New York, 1819-1823,) XI (Richmond, 1823), 45-51. Hereafter cited as Hening, ''Statutes''.

<sup>25</sup> ''Ibid.'', XII (Richmond, 1823), 407-408; Samuel Shepherd, compiler, ''The Statutes at Large of Virginia,. . . 1792, to . . . 1806 . . .'' (Richmond, 1835-1836), II, 93, 422-425, III, 73-75. Hereafter cited as Shepherd, ''Statutes''.
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by previous investigators, it affords us a surer understanding of the grim story of the unpunished forgeries and murders committed by George Wythe Swinney than was vouchsafed to any of the people who mourned the death of Chancellor Wythe and sought with decreasing fervor to do justice to the cause of it—a more reliable understanding, indeed, than any of our predecessors attained.

The official record of the examination of Swinney for alleged forgery reads as follows:

At a Court of Hustings called and held for the City of Richmond at the Courthouse, on Monday, the second day of June 1806, for the examination of George W. Swinney,<sup>26</sup> who stands accused of forgery.<sup>27</sup>

Present

Edward Carrington, Gentleman, Mayor,

Samuel Pleasants, Gentleman, Recorder,

Henry S. Shore, William Goodwin, Anderson Barret,

David Lambert and William Richardson, Gentlemen, Aldermen.

The prisoner was led to the bar in custody of the Sergeant of this City; whereupon sundry witnesses were sworn and examined, and the prisoner in his defence fully heard: On consideration whereof, the Court is of opinion that the prisoner is guilty of the offence aforesaid, and doth order that he undergo a trial therefor at the next District Court directed by law to be holden at the Capitol in this City: and it is further ordered that the said George W. Swinney be bound in a recognizance in the penalty of one thousand dollars, with suf-

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<sup>26</sup> George Wythe Swinney, whose surname occurs in contemporary records also in the form of various spellings of Sweeney, was a grandson of George Wythe's sister and hence a grandnephew of Wythe. For genealogical information concerning him and related Sweeneys see W. Edwin Hemphill, George Wythe the Colonial Briton: A Biographical Study of the Pre-Revolutionary Era (Doctoral Dissertation, University of Virginia, 1937), 40.

<sup>27</sup> Swinney had doubtless been accused of forgery as the result of a preliminary hearing before one or more of the municipal magistrates or justices of the peace, presumably within the last five days of the preceding week, May 27-31, as is indicated by the testimony of the first witness below. William Wirt enumerated a few other manifestations of dishonesty on Swinney's part that had been preludes to his climactic crime: "The young villain (only about 16 or 17) had been in the habit of robbing his uncle [i.e., his granduncle, George Wythe] with a false-key, had sold three trunks of his most valuable law-books, had forged his checks on the bank to a considerable amount, & wound up his villainies by this act [of murder]." William Wirt to James Monroe, Jun. 10, 1806, Monroe Papers, vol. XI, no. 1373.
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ficient security in a like penalty, for his personal appearance before the Judges of the said district Court, on the first day of the next term thereof, to answer the Commonwealth of the offence aforesaid; and failing to give the security required, he is remanded to jail until he shall give such security, or shall be otherwise discharged by the course of law.

William Dandridge (Teller of the Bank of Virginia) a witness on the foregoing examination, being sworn, deposeth and saith: That on Tuesday last [May 27], the prisoner produced to him at the bank of Virginia, a check thereon for the sum of one hundred dollars, drawn in the name of George Wythe esquire, which the deponent paid. That some time after, on examining the check, he suspected it to be a forged one, and he thereupon went to the prisoner and stated that he believed there was a mistake in said check; That the prisoner immediately produced the money and delivered the same to the deponent. That the prisoner frequently presented checks at the bank in the name of the said George Wythe; and the deponent verily believes that six checks now produced in Court were presented by the prisoner, and are all counterfeited.

Peter Tinsley,<sup>28</sup> another witness sworn on the said examination deposeth and saith: That he carried to George Wythe esquire seven checks drawn in his name on the bank of Virginia, who denied having drawn or signed more than one of them.

William Dandridge and Peter Tinsley here in Court acknowledge themselves indebted to his Excellency William H. Cabell governor or chief magistrate of the Commonwealth of Virginia, in the sum of one hundred pounds each, of their respective goods and chattels, lands and tenements, to be levied, and to the said governor and his successors, for the use of the said Common-wealth rendered: Yet upon this Condition, that if the said William Dandridge and Peter Tinsley shall severally make their personal appearance before the Judges of the District Court directed by law to be holden at the Capitol in this City, on the first day of the next term thereof, to give evidence on behalf of the Commonwealth against George W. Swinney, who stands accused of forgery, and shall not depart thence without the leave of the said Court, then this recognizance is to be void.<center>
(Minutes signed) E: Carrington Mayor<sup>29</sup>
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<sup>28</sup> Tinsley was for many years Clerk of the High Court of Chancery.

<sup>29</sup> One item of corrective evidence is brought out in this record. Unofficial reports of 1806, whenever they stated or implied a chronology for Swinney's crimes, invariably indicated that his forgeries and the discovery of them preceded his poisoning of Judge Wythe. On the contrary, Dandridge testified that Swinney was sus-
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The official record of the examination of Swinney on the charge of murder is a remarkably detailed one. Its unusual length doubtless reflects a common impression of the uncommon nature and circumstances of the alleged crime. The record reveals utter desperation on the part of an al-most deranged Swinney. It portrays the mounting growth of suspicion during illnesses that might have been provoked by merely natural causes. It embodies observations that link Swinney conclusively with ratsbane (white arsenic) and yellow arsenic. It records medical symptoms and measures that are not nice but seem necessary. And it indicates reserve on the part of three physicians when they gave under oath their professional judgments whether or not the death of George Wythe could be attributed to arsenic poisoning. This record is as follows:

At a Court of Hustings called and held for the City of Richmond at the Courthouse, on Monday, the 23d. day of June 1806, for the examination of George W. Swinney, who stands accused of murder.<sup>30</sup>
Present

The Same Justices as above.<sup>31</sup>

The prisoner was led to the bar in custody of the Sergeant of this City; where-upon sundry witnesses were sworn and examined, and the prisoner in his

<div style="font-size: 85%;">
pected for the first time of his forgeries after he had presented a sixth forged check at the bank on Tuesday, May 27. That Tuesday will be found to have been two or three days after Swinney had poisoned Wythe. On that Tuesday the Chancellor lay abed in the early stages of his mortal illness. That is one reason—and his charitable, compassionate nature may be another—for the fact that Wythe himself did not testify in court which of the seven checks "carried" to him by Tinsley he had not signed personally. Further details about the six forgeries will be revealed later in this article.

<sup>30</sup> The accusation against Swinney for the alleged murders of "Wythe & Michael Brown the Freed Boy" had resulted, in keeping with Virginia law, from a hearing held on Jun. 18 before Mayor Edward Carrington and two other magistrates or aldermen. On that occasion the examination of witnesses "lasted near Five Hours." The mayor and his two colleagues "were of Opinion that they, Mr. Wythe & Michael, were poisoned by Geo. W Sweeney." The suspect was ordered to be held in jail to await trial by the Hustings Court as a "Court of Examination" on Jun. 23. William DuVal to Thomas Jefferson, [[Jefferson-DuVal Correspondence#William DuVal to Thomas Jefferson.2C 19 June 1806|Jun. 19, 1806]], Jefferson Papers. Cf. Shepherd, ''Statutes'', III, 73-75.

<sup>31</sup> That is to say, the same six who had been present for the trials of earlier cases on Jun. 23: Mayor Edward Carrington, Recorder Samuel Pleasants, Jr., and Aldermen Henry S. Shore, Anderson Barret, David Lambert, and William Richardson. Aldermen William DuVal, William Goodwin, and Thomas Underwood did not sit as judges for this examination. DuVal attended as a witness.
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===Page 554===

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defence fully heard: On consideration whereof, the Court is of opinion that the prisoner is guilty of the offence aforesaid, and doth order that he undergo a trial therefor before the next District Court directed by law to be holden at the Capitol in this City: and thereupon the said George W. Swinney is remanded to jail.<sup>32</sup>

Tarlton Webb,<sup>33</sup> a witness for the Commonwealth on this examination, being sworn, deposeth and saith: That about a fortnight or three weeks be-fore the prisoner was committed to jail, he enquired of the deponent where he could procure any ratsbane? The deponent replied that it was against the law of the United States to have it. The day before the prisoner was apprehended,<sup>34</sup> he came to the house of the deponent's mother, and shewed the depon[en]t something wrapped in paper, which he said was Ratsbane, and in-formed the deponent that he intended to kill himself, and offered to give the deponent some if he wanted to die. The deponent being shown some drugs found in the jail and produced in Court by Mr. [William] Rose,<sup>35</sup> deposes that what the prisoner showed him was like that in Mr. Rose's possession, and that there was about one table spoonful. The prisoner stated to the deponent that he was very unhappy and something pressed upon his mind; but though applied to, would not disclose the cause of his uneasiness to the deponent.

William Rose,<sup>36</sup> another witness sworn on this examination, deposeth and

<div style="font-size: 85%;">
<sup>32</sup> The [[Virginia, June General Court, 1806|Richmond ''Enquirer'', Jun. 24, 1806]], printed the following announcement of the decision: "George W. Swinney was yesterday called before the examining court of this city, on the charge of poisoning his great Uncle, the venerable George Wythe, and a servant boy. He was unanimously remanded to jail for further trial before the district court to be had in September next." Although it was not particularly customary for crime news, especially courtroom news of this tentative sort, to be widely reprinted, this item reappeared in such representative newspapers as the Richmond [[Virginia Argus, 25 June 1806|''Virginia Argus'', Jun. 25, 1806]]; the Alexandria ''Virginia Gazette, & General Advertiser'', Jun. 25, 1806; the Washington, D. C., ''National Intelligencer, and Washington Advertiser'', Jun. 30, 1806, and ''Universal Gazette'', Jul. 3, 1806; the Augusta, Ga., ''Chronicle'', Jul. 12, 1806; and the Savannah, Ga., ''Columbian Museum & Savannah Advertiser'', Jul. 12, 1806, and ''Georgia Republican'', Jul. 15, 1806.

<sup>33</sup> This witness has not been identified positively. His testimony suggests that he was probably a youthful friend of Swinney.

<sup>34</sup> Swinney was arrested on Wednesday, May 28, or Thursday, May 29, according to testimony given in this examination by witness William DuVal, reproduced below. Webb's testimony here to the effect that Swinney told him on May 27 or May 28 that "something pressed upon his [Swinney's] mind" can be, therefore, a veiled reference by Swinney himself to worry and remorse because of the way he had used poison, with results that had not yet proved fatal, and possibly also because of the forgery committed and detected on Tuesday, May 27.

<sup>35</sup> For an identification of William Rose see the next paragraph and footnote 36.

<sup>36</sup> Rose was the public jailor of Richmond. Richmond ''Enquirer'', Jul. 8, 1817. Rose's
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===Page 555===

<blockquote>
saith: That his servant girl Pleasant, went into the garden about twelve o'clock the day after the prisoner was committed to jail and brought the paper this day produced [in court], the contents of which the deponent immediately knew to be arsenic. When the prisoner was committed to jail, the deponent did not search him; but about an hour and a half after, or thereabouts, hearing that it was probable he had pistols, he went into the jail and felt his pocket, and felt that there was a heavy substance wrapped in paper; but supposing that it might be coppers, or some few eighteen penny pieces, he did not take it out of his pocket. The prisoner had the use of the debtors room and the jail yard at his option. As soon [as] the arsenic was found the deponent suspected that Mr. Wythe was poisoned.

Samuel McCraw,<sup>37</sup> another witness sworn on the said examination, deposeth and saith; That being informed by Mr. Rose, that arsenic had been found in his garden, he proposed to have the servant carried into the garden to see the place where [the arsenic had been] found, to ascertain whether it was deposited there, or thrown from the jail yard. That at the place where the servant stated the arsenic to have been found, the deponent found two papers lying about eighteen inches apart: That the crude arsenic had penetrated a little into the earth, and there were two plants one a fennel, the other a beat [''sic''], broken off as he supposed by the throwing the arsenic over the jail wall: The deponent thinks it must have come from the jail yard. The beat [''sic''] that was wounded was next [i.e., nearer] the jail wall and was wounded considerably farther from the ground than the fennel. On the first of June, one week after Mr. Wythe's attack [began], the deponent was re-quested to go to attest [the final codicil to] Mr. Wythe's will. Mr. Wythe re-quested the prisoner's room and trunk to be searched. The deponent, with others, was conducted to the room where the prisoner lodged, opened the chest and found a port folio with a quire of blotting paper, which the deponent believes to be of the same kind with what was found wrapped round the arsenic found in the garden. In the prisoner's room on a writing table, the deponent found a paper on which were a half a dozen strawberries with the appearance of arsenic having been sprinkled over them. He found a phial with an appearance of having had a liquid, some of which adhered to the side of the phial, and on examination was believed to have been a mixture of testimony and that of the next witness make it plain that the former's residence and garden adjoined the jail.

<div style="font-size: 85%;">
testimony and that of the next witness make it plain that the former's residence and garden adjoined the jail.

<sup>37</sup> McCraw was one of the four witnesses who signed the final codicil to Wythe's will. Minor, "[[Memoir of the Author]]," in Wythe, ''Decisions'', xxxviii-xxxix.
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===Page 556===

<blockquote>
arsenic and sulphur. He also found two pieces of coarse brown paper, with something adhering to each, which was also declared to be arsenic and sulphur. The deponent frequently visited Mr. Wythe in his last illness and he appeared to be in very great agony from the first time to his death. Some time before the death of Mr. Wythe, while this deponent was sitting by him, Mr. Wythe exclaimed, cut me—the deponent supposed he wanted to have his flannel cut loose which the deponent accordingly did, but which gave apparent displeasure to Mr. Wythe, who then putting his hand to his throat and heart again called out, cut me, but could make no further explanation: this induced a belief in the deponent and those present that it was his wish to be opened after his death. The deponent never did hear Mr. Wythe express any suspicion of having been poisoned.

Fleming Russell<sup>38</sup> another witness sworn on the said examination deposeth and saith; That the day he received the warrant [for the arrest of Swinney] he went to Mr. Wythe's and found the prisoner: when he showed the prisoner the warrant and carried him to Major DuVal's & discovered he had no pistols, took his knife from him, and put his hand in his coat pocket, he felt very distinctly that he had two separate parcels of something wraped up in paper in his pocket but made no further search. After the prisoner was committed to jail, the deponent informed Mr. Rose, that the prisoner had some-thing else in his coat pocket and advised him to make a search, but did not go with Mr. Rose to make it.

Taylor Williams<sup>39</sup> a witness sworn on the said examination deposeth and saith; That about three weeks before the prisoner was apprehended, he mentioned something to the deponent about poison. The deponent informed him that copperas [i.e., crystallized ferrous sulphate] and water was poison. In about six or seven days after, the prisoner began a conversation with the deponent about poison: the deponent then told him ratsbane was poison, and that a gentleman of his acquaintance used it for the purpose of killing rats, and that [it] was to be bought in the shops, but does not recollect with certainty whether the prisoner asked him where it might be had.

Major William DuVal<sup>40</sup> another witness sworn on said examination de-

<div style="font-size: 85%;">
<sup>38</sup> This witness has not been identified. Judging from his testimony, he must have been a Richmond police officer.

<sup>39</sup> Williams appears from his testimony to have been a young friend of Swinney.

<sup>40</sup> William DuVal was of Huguenot descent, an officer during the Revolutionary War, an attorney, a member of the Virginia General Assembly, a magistrate of Richmond who had served as mayor during 1805-1806, and an intimate friend of Wythe, whose residence was also located in the square bounded by Grace, Sixth, Franklin,
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===Page 557===

<blockquote>
poseth and saith; that on the 25th day of May, he went to see Mr. Wythe, without knowing he was sick, and found him very ill[,] extended on his back. Mr. Wythe said he had not caught cold, that he was as well as usual in the morning, & eat his brea[k]fast as usual; but was immediately taken extremely ill, confined on his back except when forced up, which was upwards of forty times, and had fifteen large evacuations. After the prisoner was committed for the forgery he applied to the deponent by letter to be bailed. Mr. Wythe would have nothing to do with bailing [Swinney]. Mr. Wythe said he was taken ill on the twenty fifth day of May, about nine o'clock after having eat his break-fast; that on wednesday or thursday after, the prisoner was apprehended. Mr. Wythe requested that the prisoner's room and trunk might be searched, which request he repeated frequently, and finally on the first of June prevailed on Mr. McCraw and some other gentlemen who searched the room and trunk and found some papers with something adhereing to them which was declared by Doctor Greenhow<sup>41</sup> to be arsenic. The deponent saw the appearance of arsenic in an out house of Mr. Wythe's, in his yard, used as a shop; and [de-poseth] that some was also found in an old smoak house on a wheel barrow; which on being tried with a pin was proved to be arsenic. On thursday before Mr. Wythe's death he made an ejaculation and declared he was murdered in a low tone of voice. It was generally believed that Mr. Wythe had left the prisoner a great portion of his estate, and known that he had made some pro-vision for the mulatto boy, [Michael] Brown.

Samuel Greenhow<sup>42</sup> another witness sworn on said examination gave the same evidence upon the search of the prisoners room and trunk with McCraw.
and Fifth Streets. DuVal died in Buckingham County in 1842 at the age of 93. W. Asbury Christian, ''Richmond: Her Past and Present'' (Richmond, 1912), 57, 545; Richmond ''Enquirer'', Jan. 13, 1842, and May 13, 1842.

<div style="font-size: 85%;">
<sup>41</sup> The Greenhow to whom DuVal referred may have been the next witness, identified in footnote 42, who is known to have participated in the search of Swinney's room but is not known to have had any claim to the title of Doctor. Conceivably, on the other hand, this Doctor Greenhow may have been the Doctor James G. Greenhow who was living in Richmond in 1815. Blanton, ''Medicine in Virginia in the Nineteenth Century'', 246, 445, citing the Richmond ''Virginia Argus'', Mar. 1, 1815.

<sup>42</sup> Samuel Greenhow issued, as "Principal Agent," a call for the annual meeting in 1809 of the Mutual Assurance Society, the well-known, pioneer Virginia fire insurance company. Richmond ''Enquirer'', Dec. 24, 1808. With men like the Reverend John D. Blair, the Reverend John Buchanan, the Reverend John Holt Rice, and William Munford, Samuel Greenhow was a charter member of the Board of Managers of the Virginia Bible Society, which was organized in Jul., 1813. Christian, ''Richmond'', 87. Greenhow was one of the four witnesses who signed the final codicil to Wythe's will. Minor, "[[Memoir of the Author]]" in Wythe, ''Decisions'', xxxviii-xxxix.
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===Page 558===

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William Price<sup>43</sup> another witness sworn on said examination, gave the same evidence as McCraw and Greenhow on the subject of the search of the prisoner's room, and [substantiated the testimony] of McCraw on the subject of Mr. Wythe’s request to be cut. Mr. McCraw mentioned at that time that he supposed Mr. Wythe wanted to be cut open. Mr. Wythe appeared to be in great agony during his illness, and more particularly when moved.

Nelson Abbott<sup>44</sup> another witness sworn on said examination, deposeth and saith, that on saturday the 24th day of May last, he put an axe, now produced [in court], into a shop in Mr. Wythe’s yard, which he [Wythe] had lent him [Abbott] for a work shop; that on the 27th he went to Hanover and returned on friday the 30th when he discovered the arsenic in its present situation, and a hammer much stained with yellow, which has since been cleaned. The negroes in the shop said the prisoner had beat something they did not know what on the side of the ax with the hammer.

William Claiborne<sup>45</sup> another witness sworn on the said examination deposeth and saith: That he went to Mr. Wythe's the wednesday after his illness [began], who informed him that the Sunday preceding in the morning, he was as well as usual, immediately after breakfast he was taken with a colarimorbus [cholera morbus] and then a violent lax, went forty times that day, and had at least fifteen large evacuations: That on Saturday night he supped [i.e., on Saturday night, May 24, Wythe had supped] on milk and strawberries. Mr. Wythe said all the negroes [of his household] were taken [sick] at the same time. The deponent went into the kitchen and found most of them very ill. He then went to Major DuVal's, and expressed his opinion that the family were poisoned; and suspected the prisoner in consequence of his having been detected [on the previous day, May 27] in the forgery, as the death of Mr. Wythe before the detection could only prevent an alteration in his will which the deponent believed was much in favor of the prisoner. The deponent frequently told the prisoner that he would be well provided for by Mr. Wythe if he behaved well. After the death of the yellow boy [Michael Brown], the deponent was told by some of the negroes that arsenic was found in the outhouses. The deponent took some off the wheelbarrow in the old smoke house, applied fire to it and found from the smell that it was arsenic. The deponent asked Mr. Wythe whether the prisoner break-

<div style="font-size: 85%;">
<sup>43</sup> William Price was another of the witnesses to the final codicil to Wythe's will. Minor, "[[Memoir of the Author]]," in Wythe, ''Decisions'', xxxviii-xxxix.

<sup>44</sup> No information to identify this witness has been discovered.

<sup>45</sup> William Claiborne was the father of W. C. C. Claiborne, Governor of the Territory of Orleans. Richmond ''Enquirer'', Oct. 3, 1809.
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===Page 559===

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fasted with him the morning before he [Wythe] was taken [sick]. At first he did not answer. Afterwards he said he did not know, he [Swinney] was always called to his breakfast, but sometimes took no thing to eat or drink. Mr. Wythe observed he died in peace with all the world, and said he should leave directions for his executor to search the prisoner's trunk. This took place after the death of the boy Michael [on Sunday morning, June <sup>46</sup>], about sunset on the first of June.

[[wikipedia:Edmund Randolph|Edmund Randolph]],<sup>47</sup> being also sworn, deposeth and saith: That on Sunday the first of June about nine o'clock [A.M.], Major DuVal informed the deponent of the death of Michael from poison and [reported] Mr. Wythe as probably dying with the same. Mr. Wythe told the deponent he had supped on strawberries and milk the Saturday before he was taken ill. He wished his will to be altered so as to give to the prisoner's brothers and sisters what he had given him. The deponent made the alteration and then returned home, and afterwards went again to Mr. Wythe and informed him of the death of Michael Brown. The former codicil to the will was then destroyed and the present one made. On Wednesday the fourth of June, the deponent was in-formed by old Lydia [Broadnax] that more marks of poison had been discovered. The deponent went into the shop and saw Abbot's ax. The negro<sup>48</sup>

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<sup>46</sup> George Wythe said in the final codicil to his will, dated Jun. 1, 1806, that he had been told that Michael Brown had died that morning. Minor, "[[Memoir of the Author]]," in Wythe, ''Decisions'', xxxviii-xxxix. An almost contemporary letter also refers to Brown's death on Sunday morning, Jun. 1. William DuVal to Thomas Jefferson, [[Jefferson-DuVal Correspondence#William DuVal to Thomas Jefferson.2C 4 June 1806|Jun. 4, 1806]], Jefferson Papers.

<sup>47</sup> Edmund Randolph, the first Attorney General both of the Commonwealth of Virginia and of the United States, wrote and witnessed the final codicil to Wythe's will. See his testimony here given and Minor, "[[Memoir of the Author]]," in Wythe, ''Decisions'', xxxviii-xxxix. Randolph's career had overlapped Wythe's through the past thirty years—for example, in the Virginia conventions of 1776 and 1788. The first of the two codicils mentioned by Randolph in his testimony evidently devised to George Wythe Swinney's brothers and sisters only what Wythe had formerly bequeathed to Swinney. The second of the two codicils mentioned by Randolph devised to George Wythe Swinney's brothers and sisters everything that Wythe had formerly bequeathed both to Swinney and to Michael Brown. The will and its codicils dated Jan. 19 and Feb. 24, 1806, were proved in the General Court of Virginia on Jun. ii, 1806, by the oaths of Edmund Randolph and Peter Tinsley; and the final codicil, dated Jun. 1, 1806, was proved by the oaths of Samuel McCraw, William Price, and Edmund Randolph. For a printed copy of the will and its three validated codicils see Minor, ''ibid''. An attested manuscript copy is filed under Jun., 1806, in the Jefferson Papers.

<sup>48</sup> This reference to a certain Negro is not as precise as we might wish. Doubtless, however, Randolph talked on Jun. 4 with a Negro man employed in Nelson Abbott's workshop. Possibly this man was one of the same "negroes in the shop" who, according to Abbott's deposition, had told Abbott on May 30 that they did not
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===Page 560===

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was uncertain whether [it was on] the 24th or 26th of May, that the prisoner had caused the appearances [of poisons in the workshop]; but at last settled that it was on Saturday [May 24] when he found the prisoner in the shop, and one of the doors forced, and the prisoner was in the act of pounding some-thing on the axe. The prisoner asked him what it was? the negro replied he believed it was ratsbane. The prisoner then scraped it as clean as he could off the axe and folded it up in a piece of paper, wiping the axe with shavings. It was generally understood and believed that Mr. Wythe had left the bulk of his estate to the prisoner.

Doctor James McClurg,<sup>49</sup> another witness, being sworn, deposeth: That he was present at the opening of the body of Michael Brown. The lower part of the stomach was very much inflamed and had the appearance of the black vomit. The deponent went to visit Mr. Wythe on the day before the boy died and found him with a fever, his tongue very foul, had had no passage for twelve hours, and was free from pain. The appearance of the boy was such as arsenic might have produced; but such as might also have been produced by a great collection of bile. The deponent was also present at the opening the body of Mr. Wythe. The whole of his stomach and intestines had an uncommonly bloody appearance, that if produced by arsenic, in his [McClurg's] opinion, death would have ensued much sooner. Mr. Wythe had been frequently attacked with disordered bowells within three years last past.

Doctor James D. McCaw,<sup>50</sup> being also sworn, deposeth: That he was called ''know'' what substance Swinney had pounded into powder. In slight but not necessarily contradictory contrast, the Negro of whom Randolph testified simply ''believed'' on May 24 that the substance was ratsbane.

<div style="font-size: 85%;">
<sup>49</sup> Under the reorganization of the College of William and Mary instigated by Thomas Jefferson in 1779, James McClurg (1746-1823), Edinburgh-trained physician, had been one of Wythe's four colleagues in the faculty. For three years Dr. McClurg held the newly created chair of the professor of anatomy and medicine. Like Wythe, McClurg went to Philadelphia in 1787 to attend the convention from which emerged the Federal Constitution. McClurg was chosen to be Richmond's mayor in 1797, 1800, and 1803. For a quarter of a century he was one of the community's out-standing physicians. When the Medical Society of Virginia was organized in 1820, he was elected its first president. Although he was too infirm to take an active part in its affairs, he was re-elected in the next year. Blanton, ''Medicine in Virginia in the Nineteenth Century'', 13, 75-76; Christian, ''Richmond'', 545.

<sup>50</sup> James Drew McCaw, M.D., was one of the founders of the Medical Society of Virginia. His father, Dr. James McCaw, founded what might be called a Virginia medical dynasty destined to last five generations. Blanton, ''Medicine in Virginia in the Nineteenth Century'', 116-117, 261, 367. James D. McCaw's offer of 1802 to inoculate the poor of Richmond against smallpox had been accepted by the Common Hall or Council. Richmond ''Examiner'', Jun. 2, 1802. Judging by James D. McCaw's testi-
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===Page 561===

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to attend Mr Wythe on the 26th of May between four and five o'clock. He had been up with a violent puking & purging, and the deponent gave him an opiate, after which he got better, and was better until the discovery of the prisoner's forgery [on Tuesday, May 27], when he became worse and continued to grow worse. The deponent saw the boy [Michael Brown] on the day before his death, when he had a fever and complained of great pain. The deponent saw him opened after his death, and thinks that his death might have been occasioned by a great accumulation of bile.

Doctor William Foushee,<sup>51</sup> being sworn, deposeth: That he attended the opening of Mr Wythe's body in the presence of many other physicians.<sup>52</sup> The stomach was very much inflamed, and appeared as if a new inflamation was coming on. There was very little bile in the liver. The same appearance that his stomach and intestines exhibited might have been produced by arsenic, or any other acrid matter.

James McClurg, William Foushee, James D. McCaw, William Rose, Samuel McCraw, Fleming Russell, William Claiborne, William Price (Register) Nelson Abbott and Taylor Williams,<sup>53</sup> here in Court acknowledge themselves

<div style="font-size: 85%;">
mony, he seems to have been more nearly the family physician to the Wythe household than any of the other physicians whose names occur in records concerning the Chancellor's last illness. To be compared with the recorded testimony of Dr. McClurg and that of Dr. McCaw concerning the autopsy on the body of Michael
Brown is DuVal's letter to Jefferson: "As a Magistrate I requested four eminent Physicians to open the body of the Boy. They did so; from the inflamation on the Stomach & Bowels they said that it was the kind of Inflamation produced by Poison." William DuVal to Thomas Jefferson, [[Jefferson-DuVal Correspondence#William DuVal to Thomas Jefferson.2C 4 June 1806|Jun. 4, 1806]], Jefferson Papers.

<sup>51</sup> William Foushee, M.D., had been born in the Northern Neck in 1749. Like McClurg, he studied medicine in Edinburgh. He served as Richmond's first mayor, 1782-1783, as the town's postmaster for several years, and as the president of its Common Hall or town council for several years. He also served in both the legislative and executive branches of the state government. For many years he presided over the James River Company's internal navigation improvement projects. The General Assembly named him among the charter trustees of the Richmond Academy in 1802. Twenty years later the Medical Society of Virginia elected him its second president. When he died in 1824, he was almost seventy-five years old and was said to have been Richmond's oldest inhabitant. His death evoked an unusually detailed obituary. Christian, ''Richmond'', 57-58, 545; Blanton, ''Medicine in Virginia in the Nineteenth Century'', 75-76; Richmond ''Enquirer'', Aug. 24, 1824.

<sup>52</sup> DuVal reported to Jefferson that William Foushee, James D. McCaw, James McClurg, and two other physicians performed the autopsy on Wythe's body on the day of his death. DuVal stated simply that they found "considerable inflamation in the Stomach," but he added in the same context that it was "strongly suspected" that Wythe and Michael Brown had been poisoned with yellow arsenic by George Wythe Swinney. William DuVal to Thomas Jefferson, [[Jefferson-DuVal Correspondence#William DuVal to Thomas Jefferson.2C 8 June 1806|Jun. 8, 1806]], Jefferson Papers.

<sup>53</sup> It may be highly significant that four of the fourteen witnesses were not
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severally indebted to his Excellency William H. Cabell governor or chief magistrate of the Commonwealth of Virginia, in the sum of one hundred pounds each, of their respective goods and chattels, lands and tenements, to be levied, and to the said governor and his successors, for the use of the said Common- wealth rendered: Yet upon this Condition, that if the said James McClurg, William Foushee, James D. McCaw, William Rose, Samuel McCraw, Fleming Russell, William Claiborne, William Price (Register) Nelson Abbott and Taylor Williams, shall severally make their personal appearance before the Judges of the District Court directed by law to be holden at the Capitol in this City on the first day of the next term of that Court, to give evidence on behalf of the Commonwealth against George W. Swinney, who stands accused of murder, and shall not depart thence without the leave of the said Court, this recognizance is to be void.

(Minutes signed) E: Carrington, Mayor

The depositions of the sixteen witnesses in the two proceedings of June 2 and 23 make Swinney's motives for murder clearer than other contemporary records. Obviously, that troubled knave had tried to solve more than one of his problems at once. By a single desperate deed he might forestall discovery of his forgeries, prevent any resultant reduction or cancellation of the legacy he would receive from Wythe, and claim his inheritance prematurely.

But the second Hustings Court record does not enable us to determine with finality precisely when and how Swinney committed his acts of murder. None of the testimony links arsenic with the coffee served in Wythe's cottage, according to the traditional story of the poisonings, at breakfast on Sunday, May 25. To contrary import are the depositions of Claiborne, McCraw, and Randolph. Their assertions under oath indicate that Swinney had mixed some arsenic with strawberries and that Wythe ate strawberries for supper on Saturday, May 24. Wythe's breakfast coffee may have become the supposed vehicle for the poison on the invalid ground of reasoning of the ''post hoc, propter hoc'' type. Actually, so far as we can tell,

placed under bond to be available to serve as witnesses in the forthcoming trial of Swinney on the charge of murder before the District Court. The four who were exempted from such an obligation were William DuVal, Samuel Greenhow, Edmund Randolph, and Tarlton Webb. While in some respects their testimony before the Hustings Court merely confirmed that of other witnesses, in these respects, and more especially in reference to other observations concerning which others did not testify, the evidence submitted by these four could not be omitted without weakening the case against Swinney.

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he may have consumed poisoned foods at both meals. A fatal dose of arsenic usually produces acute symptoms within about an hour after it enters the human stomach, and death usually follows within one to three days. Wythe's case was not a typical one in the latter respect, and we have scant cause to assume that it was a normal one in the former respect. Fatal dosages of arsenic have been known in rare instances to cause no symptom for as many as twelve hours, particularly if the poison was ad- ministered in solid rather than liquid form and if a full meal was consumed with it; and death has been known to result as much as two weeks after the appearance of symptoms, as it did in Wythe's case. An inexperienced, experimenting Swinney may have underestimated on May 24 the amount of arsenic required to accomplish his premeditated purpose. He may have awaked the next morning to find that his attempt of the previous afternoon or evening had failed. He may then have added a second and larger quantity of arsenic to the breakfast menu. Neither this nor any alternative possibility can be proved conclusively from the available evidence.

More important than questions about details of that sort is the official record's revelation of the limited, inconclusive nature of the physicians' findings in the two autopsies. They did not exhaust every means known to the medical scientists and chemists of their generation to determine whether or not the deaths of Michael Brown and George Wythe had been unnatural ones. One authoritative treatise, for example, published in 1832 but embodying comparatively little that had been learned since 1806, devoted fully a hundred pages to its discussion of arsenic poisoning, forty of them to various definitive tests by which the presence of arsenic can be determined. Its author commented on the ease with which that almost tasteless and odorless chemical element could be procured in various forms and compounds and could be administered surreptitiously. Then he added,

"It is fortunate, therefore, that there are few substances in nature, and perhaps hardly any other poison, whose presence can be detected in such minute quantities and with so great certainty."<sup>54</sup> The inflamed tissues observed by the Richmond doctors were ambiguous. The same kind of examination today would do little more, if any, to pin down positively the cause of such deaths, for gastrointestinal inflammations of quite similar

<div style="font-size: 85%;">
<sup>54</sup> Robert Christison, ''A Treatise on Poisons, in Relation to Medical Jurisprudence, Physiology, and the Practice of Physic'' (2d ed., Edinburgh, 1832), 223. This volume's treatment of arsenic poisoning covers pp. 223-324.
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<blockquote>
appearance can result from any of several distinct causes, both natural and unnatural. The Richmond physicians' post-mortem inspections should not have ended short of a few simple laboratory procedures. Standard analyses of that kind would almost certainly have proved beyond question whether or not arsenic had ended the lives of the youthful Michael Brown and the aged George Wythe.

The above testimony in both of the suits of the Commonwealth ''v.'' Swinney confirms an undisputed conclusion reached by all who have ever studied the matter: Wythe himself became fully convinced on his death- bed that Swinney was a forger and a murderer. Yet, in fact, that young man escaped legal punishment for both offenses. His road to freedom was, however, a tortuous one. Sometime during the summer of 1806 the charges against him were referred to a grand jury. It returned true bills. Thus it became the third judicial body to render a verdict of guilt against Swinney on each accusation, for the same conclusion had already been reached on each count by one or more of Richmond's magistrates and by the Hustings Court. Specifically, the grand jury cleared the way for the trial of Swinney by the District Court on each of six distinct indictments—one for the murder of Wythe, another for that of Michael Brown, and four for forgeries of Wythe's name on as many checks.<sup>55</sup>

On September 2, 1806, the District Court proceeded to tackle what the [[Respectfully Dedicated to the Legislature of Virginia|Richmond ''Enquirer'']] termed "the celebrated trial of George W. Sweeney, on the charge of administering arsenic to his great Uncle the venerable George Wythe." Judges Joseph Prentis and John Tyler, Sr., whose son of the same name was destined to become the tenth President of the United States, were the two members of Virginia's General Court assigned to preside over this session in the Richmond district.<sup>56</sup> Presumably, the two judges' judicial robes hid the mourning bands of crape that they and other members of the General Court had resolved to wear on their left arms for three months in tribute to the jurist Virginia had lost.<sup>57</sup> At the

<div style="font-size: 85%;">
<sup>55</sup> There is no record of any decision in regard to the other two checks that William Dandridge and Peter Tinsley had testified were, in the opinions of Dandridge and Wythe, also forged.

<sup>56</sup> [[Richmond Enquirer, 9 September 1806|Richmond ''Enquirer'', Sept. 9, 1806]].

<sup>57</sup> Ibid., Jun. 24, 1806; [[Virginia Argus, 17 June 1806|Richmond ''Virginia Argus'', Jun. 17, 1806]]; Richmond ''Impartial Observer'', Jun. 21, 1806. The Governor and Council had resolved on Jun. 14, "in honour of the deceased," to wear black bands similarly for one month as an "outward Sign of respect to his memory." Journals of the Council of Virginia (MSS. in the Virginia State Library), XXVII, 448. When the Virginia General Assembly convened in Dec., 1806, its members also resolved unanimously to "wear a badge of
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===Page 565===

<blockquote>
prosecuting attorney's table sat Philip Norborne Nicholas,<sup>58</sup> the popular young Attorney General of Virginia and successful leader in recent years of the Jeffersonian Republican party in the state. Nicholas had known Wythe while the Chancellor had still resided in Williamsburg. More recently they had been associated in various legal and political activities. Presumably, Nicholas had every reason to prosecute the case with all the vigor at his command.

But the shocked, incensed atmosphere of June had doubtless grown calmer by September, and impressive talents had been aligned on Swinney's side as counsel for the defense.<sup>59</sup> One of these lawyers was the same Edmund Randolph who had written the codicil disinheriting Swinney, the same Randolph who had given damaging testimony against him in the Hustings Court. The other lawyer at Swinney's side was the same William Wirt who had expressed a hope that no attorney would be found to defend him, so that he would be left to suffer the fate he deserved.

Wirt had been contemplating at the beginning of the summer a desire to move from Norfolk to Richmond, for his wife found Norfolk's summers unbearable. He had concluded at that distance within a month after Wythe's death that Swinney could conceivably be innocent of murder. Judge William Nelson of the General Court had told him that "there was a difference of opinion" among Richmond doctors as to the cause of the Chancellor's death and that "the eminent McClurg, amongst others, had pronounced that his death was caused simply by bile and not by poison." Then a brother of Swinney's distressed mother had traveled eastward to implore Wirt to serve as an attorney for the defense.<sup>60</sup>

Although Wirt had already decided before that visit that "it would not be so horrible a thing to defend" Swinney "as, at first, I had thought it," the plea made by his uncle posed a problem of conscience and of reputation. By letter Wirt asked his wife, "What shall I do?" And then he proceeded to influence her decision. "If there is no moral or professional impropriety in it, I know that it might be done in a manner which would avert the displeasure of every one from me, and give me a splendid ''debut'' in the metropolis. Judge Nelson says I ought not to hesitate a moment

<div style="font-size: 85%;">
mourning" for one month. Washington, D.C., [[National Intelligencer, 15 December 1806|''National Intelligencer, and Washington Advertiser'', Dec. 15, 1806]].

<sup>59</sup> ''Ibid.''

<sup>60</sup> William Wirt to his wife, Jul. 13, 1806, Kennedy, ''William Wirt'', I, 152-153.
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===Page 566===

<blockquote>
to do it; that no one can justly censure me for it; and, for his own part, he thinks it highly proper that the young man should be defended. Being himself a relation of Judge Wythe's, and having the most delicate sense of propriety, I am disposed to confide very much in his opinion."'

The issue was settled within ten days. Nelson reiterated his opinion as to "the perfect propriety of the step." Mrs. Wirt evidently protested that her husband need not fear that she would suffer reproach. "I shall defend young Swinney under your counsel," he wrote her. "My conscience is perfectly clear, from the accounts I hear of the conflicting evidence."<sup>62</sup>

Records of the District Court, in which Randolph and Wirt undertook to save the life of George Wythe Swinney, are not extant; apparently they did not survive the fire that accompanied the Confederate evacuation of Richmond in April, 1865. Only from other sources can we learn whether or not the defense attorneys achieved their goal. The Richmond ''Enquirer'' reported succinctly the results of what was probably a day replete with courtroom drama and legal technicalities. "After an able and eloquent discussion" by counsel for the Commonwealth and for Swinney, read that newspaper's summary, "the jury retired, and in a few minutes, brought in the verdict of ''not guilty''. A similar indictment against him [Swinney] for the poisoning of Michael, a mulatto boy (who lived with Mr. Wythe) was quashed without a trial."<sup>63</sup>

There could have been no doubt whatsoever that Virginia's laws of 1806 defined murder by poisoning, if it were committed by a free person, to be murder of the first degree, punishable by death.<sup>64</sup>Some other ex- planation of the jury's astonishing verdict must be sought. Editor Thomas Ritchie offered his readers one hint why Randolph and Wirt had been able to win a quick decision in favor of their despised client. Some of the "strongest testimony" that had been heard by the Hustings Court and by the grand jury, Ritchie remarked, "was kept back from the petit jury" in the District Court. "The reason is, that it was gleaned from the evidence of negroes, which is not permitted by our laws to go against a white

<div style="font-size: 85%;">
<sup>61</sup> ''Ibid''. Nelson's distant kinship to Wythe was evidently through the second Mrs. Wythe, who had been a Taliaferro. See a copy of the will of Rebecca Cocke Taliaferro of "Powhatan," James City County, Nov. 12, 1810, in the possession of Colonial Williamsburg.

<sup>62</sup> William Wirt to his wife, Jul. 23, 1806, Kennedy, ''[[Life of William Wirt#Page 154|William Wirt]]'', 1, 154.

<sup>63</sup> [[Richmond Enquirer, 9 September 1806|Richmond ''Enquirer'', Sept. 9, 1806]].

<sup>64</sup> the enactments of 1796 and 1803, Shepherd, ''Statutes'', II, 5-14 and 405-406, respectively.
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===Page 567===

<blockquote>
man."<sup>65</sup> Actually, the reason assigned by the editor would have been more nearly true if he had phrased it more carefully. As far back as 1732 and as recently as 1801 the statutes of Virginia had stipulated that a Negro or a mulatto could be qualified as a witness only in a lawsuit brought against a Negro or a mulatto or by the commonwealth for one.<sup>66</sup> That is why Lydia Broadnax had not told the Hustings Court in June whatever she knew about the involvement of George Wythe Swinney in the deaths of Michael Brown and George Wythe.

The legal disability of Negroes to testify against Swinney had loomed large in people's thinking about the prospective trials of that ingrate for murder ever since Michael had died. Even before William Wirt learned with certainty that Wythe had also been a victim, Wirt had realized that one law might prevent the fulfillment of justice under another. "The chain of circumstances fix the guilt of Sweney beyond reach of doubt," Wirt had then been willing to assert, "but some of those circumstances, material to his conviction in a court of law, depend, it seems, on black persons, & so he will escape for the poison[ings]. he is under prosecution for the forgery & of that must be convicted."<sup>67</sup>

One logical question is answered neither by Ritchie's explanation nor by Wirt's prophecy. Why was any of the evidence that had been admissible in the three previous proceedings—evidence that had resulted in three verdicts of guilt—not presented in the District Court? No record answers that question. Possibly the District Court refused to hear some of the testimony that had been given before the Hustings Court. Evidence given by the white witnesses in June concerning what Negroes had ob-

<div style="font-size: 85%;">
<sup>65</sup> [[Richmond Enquirer, 9 September 1806|Richmond ''Enquirer'', Sept. 9, 1806]].

<sup>66</sup> The exact words of the law of 1801 were: "Any negro or mulatto, bond or free, shall be a good witness in pleas of the commonwealth for or against negroes or mulattoes, bond or free, or in civil pleas where free negroes or mulattoes shall alone be parties." Shepherd, ''Statutes'', II, 300. The statute of 1785 was to the same effect, although its provisions were couched in negative terms and omitted the words "bond" and "free" in each of the five instances of their use in the enactment of 1806. Hening, ''Statutes'', XII (Richmond, 1823), 182-183. Digests of the 1732 and 1748 statutes and of related legislation can be found conveniently in June Purcell Guild, ''Black Laws of Virginia: A Summary of the Legislative Acts of Virginia concerning Negroes from Earliest Times to the Present'' (Richmond, 1936), 154-155.

<sup>67</sup> William Wirt to James Monroe, Jun. 10, 1806, Monroe Papers, vol. XI, no. 1373. Internal evidence in this letter indicates that for the facts he stated Wirt was indebted to a communication written on Jun. 5, 1806, by his brother-in-law, Governor Cabell, and the prophecies Wirt voiced may also have reflected the Governor's thinking as of that date.
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<blockquote>
served and had told them may have been ruled inadmissible by Judges Prentis and Tyler because of its Negro source or its hearsay nature. On the other hand, we have no proof acceptable by the ordinary standards of historical criticism that Swinney was acquitted because of the repression of the testimony Lydia Broadnax or other Negroes might have given but for Virginia's laws. Ritchie's allegation about the withholding of testimony "gleaned from the evidence of negroes" remains unsubstantiated, and Wirt's prophecy can be considered to have been merely a recognition of the flimsiness of the circumstantial evidence others would be able to give.

The simple fact remains that no known witness was able to assert in any of the four proceedings that he had actually seen Swinney put poison into food eaten by Michael Brown or by George Wythe. Moreover, no physician is known to have been willing to swear that either of the two autopsies proved that death had been caused by a poison. In other words, the evidence against Swinney was purely circumstantial.

Thomas Ritchie himself had not been hysterical in his attitude toward Swinney during the first days of resentment following the news of the Chancellor's death. The editor had remembered, sanely and circum- spectly, that the accusations against Swinney had not then been proved and that, until and unless they were, he should be presumed innocent. "Every situation in life has its rights and its duties," Ritchie had cautioned his readers. "Let us therefore respect the rights of the accused."<sup>68</sup> If Swinney's two lawyers took advantage in the District Court of every legal technicality to protect their client's rights, Ritchie should have been among the last to imply any criticism of them, for they had placed themselves under obligation to do so.

In any case, George Wythe was dead. Another man's life was at stake. It is the very genius of the legal system Wythe had received from his forefathers and had himself helped to develop and to refine that this second life should not be taken lightly. Since we do not know in detail what transpired in that Richmond courtroom on September 2, 1806, we are left in the position of being forced to accept at face value the jury's final decision, which was that Swinney had not been proved beyond reasonable doubt to have murdered George Wythe and that he was therefore ''not guilty''. Similarly, we must accept the opinion of Attorney General Nicholas that it would have been useless to try to prove beyond reasonable doubt that Swinney had murdered Michael Brown.

<div style="font-size: 85%;">
<sup>68</sup> [[Richmond Enquirer, 10 June 1806|Richmond ''Enquirer'', Jun. 10, 1806]].
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===Page 569===

<blockquote>
Nevertheless, we can record the fact that those jurymen are the only persons known to have expressed at any time in or since 1806 an opinion that Swinney was not a murderer. William Wirt had concluded that Swinney could conceivably be innocent of the charge, but Wirt left no record now extant that he actually believed Swinney to be the victim of an unjust accusation. The common impression throughout the summer of 1806 was that Swinney had committed two premeditated murders. That opinion has remained unchanged to this day.

George Wythe Swinney had escaped death by hanging. It remained to be seen whether or not he would become permanently branded a convicted forger. Within another twenty-four hours he received a tentative answer to this second question. On Thursday, September 3, 1806, he was adjudged guilty on two of the forgery indictments.<sup>69</sup> But these verdicts were not allowed to stand unquestioned. Within ten days William Wirt pleaded successfully, "in an eloquent and ingenious speech" addressed to Judges Prentis and Tyler of the District Court, for arrest of judgment. Wirt's objections were considered acceptable by the two judges and were referred to the next session of the General Court for approval or rejection.<sup>70</sup> Wirt had changed his mind since his assertion in June that Swinney would doubtless be convicted of the forgery charges.

Someone else had come earlier than Wirt to the conclusion that the laws of Virginia would not justify inflicting punishment on Swinney for having obtained certain things of value at the state's bank by using forged signatures. Indeed, former Governor Page had decided in June that what Swinney had done at the Bank of Virginia was a crime only against God, not against any law of the Commonwealth of Virginia. "As to this young Man's Forgeries," Page had commented in highly moralistic vein but with a practical twist, "when religion is out of the way, I can see nothing in our law, that could restrain him, or any one else from a free exercise of that lucrative Employment. But for a sense of religion, I myself could not have done a better act for the Benefit of my Wife & Children, than to have . . . died . .. consoled with the pleasing reflection that I had handsomely provided for my Family, in a way permitted, nay chalked out by our Laws." <sup>71</sup>

<div style="font-size: 85%;">
<sup>69</sup> [[Richmond Enquirer, 9 September 1806|''Ibid.'', Sept. 9, 1806]].

<sup>70</sup> Richmond ''Virginia Gazette, & General Advertiser'', Sept. 13, 1806.

<sup>71</sup> Page's letter continued: "I could, if under no religious impressions, tell my Wife & Children, that no one would think the worse of them for what I had done; and indeed that they would always be respected in proportion to their riches, and
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===Page 570===

<blockquote>
Could it be true, as Page thought he perceived, that Swinney had violated no law by his use of counterfeited signatures of George Wythe? Almost entirely so, declared the General Court in two quite technical opinions on November 17, 1806, with Judges Francis T. Brooke, Paul Carrington, Jr., Hugh Holmes, Archibald Stuart, John Tyler, Sr., and Robert White on the bench. They learned that the District Court's jury had convicted Swinney on an indictment for having obtained from the Bank of Virginia on May 27, 1806, a ''banknote'' for $100. In order to do so, he had presented to William Dandridge both a counterfeited letter and a forged check purporting to have been written and signed by Wythe. But the judges also heard that the arrest of judgment had been awarded on the ground that the forgeries of which Swinney had been accused did not actually constitute offences against a Virginia statute enacted in 1789, which was the only law the forgery indictments against him had contrived to mention.<sup>72</sup>

For one thing, William Wirt had argued that the 1789 law "was intended to punish a pre-existing evil" and could not possibly have reference to any bank, since no bank was established in Virginia until "many years" later. In the second place, Wirt contended that the law's phraseology, as well as its date, precluded any possibility of its being applied to the Bank of Virginia. The statute made illegal any deceitful deed, bill of sale, or other such document that would result in the robbery of one or more "private individuals." The bank could not properly be considered a

<div style="font-size: 85%;">
that both I and they would have been despised had I left them poor—that therefore the riches I had acquired for them would secure them respect in this World, and that as to any other, they need not trouble themselves about it—that they ought to enjoy their hearts desire in all things, and say 'let us eat & drink for tomorrow we die.' . . . But believing as I do in a divine revelation, I had rather perish with my Wife & Children through absolute Want, than that any one of us, should do one unjust or dishonest Act." John Page to St. George Tucker, Jun. 29, 1806, Tucker- Coleman Papers.

<sup>72</sup> The law that Swinney was alleged by the indictment to have broken had been adopted on Nov. 18, 1789. It was entitled "An act against those who counterfeit letters or privy tokens, to receive money or goods in other men's names." It provided that "if any person or persons, shall falsely and deceitfully obtain or get into his or their hands or possession, any money, goods or chattels of any other person or persons, by colour and means of any such false token or counterfeit letter, made in any other man's name as is aforesaid; every such person and persons so offending, and being thereof lawfully convicted in the court of the district, in which such offence shall have been committed," shall be subject to a maximum term of one year in prison and to "setting upon the pillory." Hening, ''Statutes'', XIII (Philadelphia, 1823), 22.
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===Page 571===

<blockquote>
"person or persons" within the meaning of the law. It was "a body corporate, an ideal body," and "no more a person, than the commonwealth of Virginia." Anything, therefore, that Swinney had obtained from the bank could not have been procured in violation of a law that made punishable the getting by false means of "any money, goods or chattels of any other person or persons." And in the third place, Wirt argued, what Swinney had received was not part of "the money or goods of the said George Wythe, because having been delivered under a check not drawn by him, the bank hath no right to charge it to his account."

In connection with the ''banknote'' in question under the first indictment, the General Court found Wirt's claims convincing enough. Its judges concluded that they should grant a permanent arrest of judgment. Thus they reversed the petit jury's verdict that Swinney was guilty; thus they pronounced him innocent of the crime alleged to have occurred on May 27. While Wythe lay on his deathbed that Tuesday, Swinney had perpetrated a forgery, but it was not an unlawful forgery.

The other indictment under which the District Court had found Swinney guilty of a violation of the same statute was quite similar to the first. The second differed in only one significant particular. It involved $50 that Swinney had obtained from the bank by the same means on April 11, 1806, in the form of ''currency''. Wirt's appeal in the District Court for an arrest of judgment had been won on the same three grounds, and they were pleaded anew as sufficient cause for making the temporary ban against sentence upon Swinney a permanent one.

In this instance the General Court did not agree. It refused to accept Wirt's argument that the "''money current''" Swinney had gotten at the bank in April could not properly be charged against the account of Wythe, by virtue of the forged check, and was therefore not Wythe's money until Swinney had acquired possession of it falsely. Evidently, Virginia's supreme tribunal for criminal law decided that neither of Wirt's first two points was valid in respect to either indictment and that the validity of Wirt's third contention depended entirely upon the natures of the two kinds of property the forger had received. In other words, the six judges' two decisions meant, essentially, that the promissory ''banknote'' Swinney obtained on May 27 had not been Wythe's "money, goods or chattels" but that the ''currency'' involved in the similar transaction of April 11 had been. If this distinction seems subtle, thin, and flimsy, it appears to have been not more so than whatever reasoning persuaded the judges to ignore
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===Page 572===

<blockquote>
Wirt's assertions that the 1789 law was not at all pertinent to the later means of "getting something for nothing" upon which an unconsciously clever forger had stumbled. The chagrined John Page, who had been Governor of Virginia when the state bank was established, had believed on June, 1806, that none of Swinney's forgeries was illegal. Page had been much disconcerted by his discovery that the commonwealth had not foreseen and had not prohibited such misuses of another's signature. The General Court, on the other hand, professed to believe that one of Swinney's forgeries had inadvertently violated a law more than fifteen years old and obviously designed to curb other frauds wrought by means if forgery. Consequently, the court decreed that punishment should be imposed upon Swinney under the second indictment by the District Court.<sup>73</sup>

Nevertheless, according to a report derived from official records that are not now extant, the District Court did not execute its sentence, which was that Swinney should spend one hour in the pillory at Richmond's public market and six months in prison. Contrary to the General Court's decree and for reasons inexplicable today, the District Court is said to have granted Swinney a second trial on the indictment the higher court had upheld, and then the attorney for the commonwealth declined to prosecute the case.<sup>74</sup>

Thus freed, technically at least, of all charges against him, but with a reputation he would never be able to live down locally, the "unfortunate" Swinney "then sought refuge in the West, where his career was brought to a premature and miserable close."<sup>75</sup> So reads one account, written about the middle of the nineteenth century, of the end of the life of

<div style="font-size: 85%;">
<sup>73</sup> William Brockenbrough and Hugh Holmes, ''[[Commonwealth against George Wythe Swinney|Collection of Cases Decided by the General Court of Virginia, Chiefly Relating to the Penal Laws of the Commonwealth, Commencing in the Year 1789 and Ending in 1814, Copied from the Records of Said Court, with Explanatory Notes]]'' (Philadelphia, 1815), 146-151.

<sup>74</sup> Minor, "[[Memoir of the Author]]," in Wythe, ''Decisions'', xxviii. In a footnote on that page Minor asserted: "The records of these proceedings [in the District Court after the return to it of the decree of the General Court in the last of tie suits of the Commonwealth v. Swinney] have been consulted in the office of tie Superior Court of Law for Henrico County." Minor wrote those words in or before 1852. Presumably, reorganizations of Virginia's judicial system between 1806 and 1852 account for the fact that records of the District Court in Richmond for its Apr., 1807, term (the first session it was scheduled to have after the Nov., 186, term of the General Court) had come by 1852 into the custody of the Superior Court of Law for Henrico County. The fire in Richmond during April 2-3, 1865, apparently explains their disappearance.

<sup>75</sup> ''Ibid''.
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<blockquote>
the young man to whom George Wythe had been "kinder than a Father."<sup>76</sup> According to the memory of another Richmonder fifty years after George Wythe Swinney had been a defendant in the capital's courtrooms, Swinney went to Tennessee, stole a horse, served a term in a penitentiary, and was "then lost sight of."<sup>77</sup> The forgeries that preceded and led directly to the death of George Wythe may not have been plainly and provably crimes against the Commonwealth of Virginia. But they served one useful purpose, for they pointed out a glaring loophole in Virginia's laws. The state acted promptly to plug that gap. On the last day of the same year the General Assembly adopted and put into immediate effect "An ACT to punish certain thefts and forgeries." That law clearly defined as a crime every deed by which any person should "fraudulently obtain, or aid or assist in obtaining from the Bank of Virginia, or any of its offices of discount and deposit, any bank or post note, or money, by means of any forged or counterfeit check or order whatsoever, knowing the same to be forged or counterfeited." Violators of the new statute, when they were properly found guilty in court, were to be imprisoned for "not less than two, nor more than ten years."<sup>78</sup>

In the final analysis, we may guess, George Wythe Swinney escaped death on the gallows because of three considerations. One of these seems to be the forgiveness Wythe himself gave him. That could not alter one whit Swinney's legal liability to pay the penalty for murder, but it may have influenced, both consciously and unconsciously, the men who prosecuted and defended Swinney, those who testified, the judges who decided what evidence was admissible, and the twelve "good men and true" who retired to a jury room in the September trial. A second determining factor probably was the failure of the physicians to perform complete autopsies and thus to be prepared to assert unequivocally on the witness stand that, in their professional judgments, the deaths of Michael Brown and George Wythe had been caused by arsenic poisoning. Such testimony would have become, quite possibly, the "clincher" that would have strengthened the

<div style="font-size: 85%;">
<sup>76</sup> William DuVal to Thomas Jefferson, [[Jefferson-DuVal Correspondence#William DuVal to Thomas Jefferson.2C 4 June 1806|Jun. 4, 1806]], Jefferson Papers.

<sup>77</sup> Dove, "[[Memorandum Concerning the Death of George Wythe|Memoranda]]." Although Minor accepted Dr. Dove's recollections they are so untrustworthy in matters that can be checked that the unsubstantiated statements concerning Swinney's life after he escaped the clutches of the law in Richmond made by both Dove and Minor must be considered traditionary rather than supported by valid evidence.

<sup>78</sup> Shepherd, ''Statutes'', III, 289.
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===Page 574===

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web of circumstantial evidence against Swinney enough to put a knotted rope around his neck. A third presumed factor was inherent in Anglo-American jurisprudence. The doctors and other Virginians who participated as witnesses, attorneys, jurymen, and judges in Swinney's final trial for murder were honorable men. They cleared him of the accusation because, evidently, they thought it important to save the life of a young man who ''might'' be innocent, although he certainly seemed not to be. George Wythe himself would doubtless have had the same respect for the legal principle of a reasonable doubt.

Did Virginia justice suffer a miscarriage in 1806? For want of complete records, we cannot properly lift our second-guessing voices to cry that it went wrong. But we can agree heartily with the opinion held by Wythe himself and never relinquished by most of his sympathetic but straightforward contemporaries—the belief that, by every standard other than the technical ones of the law, Swinney had assuredly done serious wrongs. Like Wythe's survivors, we can only take comfort in the fact that Virginia justice may have avoided adding another wrong to Swinney's and in the fact that his chief victim, Chancellor Wythe himself, the "Virginia Socrates" and the "American Aristides," had achieved on his deathbed, by revoking his generous bequests to Swinney, one final act of obvious equity.
</blockquote>

==See also==

*[[Commonwealth against George Wythe Swinney]]
*[[Honest Lawyer]]
*[[Hustings Court Minutes]]
*[[Hustings Court Order Book]]
*[[Jefferson-DuVal Correspondence]]
*[[Life of William Wirt]]
*[[Memoir of the Author]]
*[[Memoranda Concerning the Death of Chancellor Wythe]]
*[[Murder of George Wythe]]
*[[National Intelligencer, 15 December 1806]]
*[[Richmond Enquirer, 8 July 1806]]
*[[Richmond Enquirer, 10 June 1806]]
*[[Richmond Enquirer, 9 September 1806]]
*[[Virginia Argus, 10 June 1806]]
*[[Virginia Argus, 17 June 1806]]
*[[Virginia Argus, 25 June 1806]]
*[[Virginia, June General Court, 1806]]

==References==
<references/>

==External links==

[[Category:Biographies (Articles)]]
[[Category:Murder of George Wythe]]

Teaching of George Wythe

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{{DISPLAYTITLE:"The Teaching of George Wythe"}}

This article originally appeared in ''The History of Legal Education in the United States: Commentaries and Primary Sources'' edited by Steve Sheppard, published by Salem Press in 1999. The text is reproduced here by generous permission of the author.
[[File:Rosenthal1888Wythe.jpg|thumb|right|350px|"'''George Wythe (1726-1806)''' influenced legal education throughout the South, as his students carried his ethics and methods from school to school." Image courtesy of the [http://digitalgallery.nypl.org/nypldigital/id?421201 New York Public Library.]]]
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'''The Teaching of George Wythe'''<br />'''''1998'''''<br /><br />''Thomas Hunter''
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Thomas Hunter is a sometime law professor and a doctoral candidate in history at The Johns Hopkins University.

Author's note: When George Wythe died in 1806, his most famous student, Thomas Jefferson, stated, "He was my antient master, my earliest & best friend; and to him I am indebted for first impressions which have had the most salutary influence on the course of my life."<ref>Thomas Jefferson to William DuVal, June 14,1806, quoted in Dice Robins Anderson, "The Teacher of Jefferson and Marshall," 15 ''South Atlantic Qtly.'' 327, 343 (1911). While mispronounced by some, in Virginia the name "Wythe" rhymes with "Smith"; according to one commentator, it is "[p]ronounced 'With' by the ''cognoscenti'' for the same reason that they pronounce Coke as 'Cooke'; the linguistic explanation in these cases is perhaps more persuasive than any that might be found for the Virginia practice of pronouncing Talliaferro as 'Tolliver.'" William F. Swindler, "America's First Law Schools: Significance or Chauvinism?," 41 ''Conn. B.J.'' 1, 2 n.4 (1967).</ref> Likewise, nearly half a century later another famous Wythe pupil, Henry Clay, noted that, "to no man was I more indebted, by his instructions, his advice, and his example, for the intellectual improvement which I made, up to ... my twenty-first year."<ref>Henry Clay to Benjamin B. Minor, May 3, 1851, in ''The Papers of Henry Clay,'' ed. Robert Seager II et al. (11 vols., 1959-1992), X, 888-89.</ref>
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==Section I==
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For many years George Wythe was a major political figure, representing Virginia in the Continental Congress and the Constitutional Convention, serving as Speaker of the Virginia House of Delegates, and signing the Declaration of Independence. His judicial career was equally impressive, for he was on Virginia's High Court of Chancery for nearly three decades, including fourteen years as the Commonwealth's sole Chancellor. Such accomplishments, however, while impressive, do little to differentiate Wythe from several of his contemporaries, and his true claim to fame lies not in the law or politics, but as a teacher.

For four decades, Wythe instructed the most promising youth of Virginia in both the law and classics, and in 1779 he became America's first university law professor, and only the second in the English-speaking world, when he was appointed Professor of Law and Police at the College of William and Mary. From Jefferson's entrance into the Continental Congress in 1774 until Clay's resignation from the Senate in late 1851, Wythe's students played crucial roles in the nation's legislative chambers. They were equally important in shaping this nation's jurisprudence, for he taught such noted federal and state jurists as John Marshall, Bushrod Washington, and Spencer Roane. Wythe instructed so well that most of his students assumed leading positions very soon after leaving his counsels, many while still in their twenties.

Despite his role in developing several generations of national leaders, not to mention the high political and judicial stations in which he served, George Wythe has not received the scholarly attention bestowed upon many of his contemporaries or students. It was not until 1970 that the first book-length portrait of Wythe was published, and in the ensuing decades none of the works which have appeared could in any way be termed close to definitive.<ref>The four book-length biographies of Wythe are William Clarkin, Serene Paldot: A Life of George Wythe (1970); Joyce Blackburn, George Wythe of Williamsburg (1975); Alonzo Thomas Dill, George Wythe, Teacher of Liberty (1979); Imogene E. Brown, ''American Aristides: A Biography of George Wythe'' (1981). Of these, Dill's is by far the best, although it is quite short. Clarkin and Brown include much interesting material, but their works also contain a number of errors and, worst of all, they fail to give citations to much of their information.

The best source on Wythe's life up to 1776 remains W. Edwin Hemphill, "George Wythe, the Colonial Briton: A Biographical Study of the Pre-Revolutionary Era in Virginia" (unpublished doctoral dissertation, University of Virginia, 1937). A published dissertation, Robert B. Kirtland, ''George Wythe: Lawyer; Revolutionary, Judge'' (1986), contains some useful information.

Articles or published speeches on Wythe include Lyon Gardiner Tyler, "George Wythe," in ''Great American Lawyers,'' ed. William Draper Lewis (1907), I, 51-90; Oscar L. Shewmake, ''The Honorable George Wythe: Teacher; Lawyer; Jurist, Statesman'' (1950); "George Wythe," ''Dictionary of American Biography,'' eds. Allen Johnson, Dumas Malone, et al. (1929-1936), XX, 586-89 (hereinafter referred to as DAB); E. Lee Shepard, "George Wythe," in W. Hamilton Bryson, ''Legal Education in Virginia, 1779-1979: A Biographical Approach,'' 748-55; Hugh Blair Grigsby, ''The Virginia Convention of 1776'' (1855), 119-30; John Sherman, "George Wythe, the Neglected Patriot: A Bibliography," 34 ''Bull. Biblio. & Mag. Notes'' 185 (1977). An excellent source on Wythe's death is ''The Murder of George Wythe: Two Essays'' (1955).

On Wythe's teaching, see also Anderson, ''Teacher of Jefferson and Marshall," supra note 1; W. Edwin Hemphill, "George Wythe, America's First Law Professor and Teacher of Jefferson, Marshall, and Clay" (unpublished master's thesis, Emory University, 1933); Paul D. Carrington, "The Revolutionary Idea of University Legal Education," 31 ''Wm. & Mary L. Rev.'' 527 (1990); Swindler, "America's First Law Schools," supra note 1; Robert M. Hughes, 'William and Mary, the First American Law School," 2 ''Will. & Mary Qtly.,'' 2d ser., 40 (1922); Fred D. Devitt, Jr., "Note: William and Mary, America's First Law School," 2 ''Will. & Mary L. Rev.'' 424 (1960).

Oscar Shewmake states that a biography of George Wythe "is not an assignment for a potboiler, ghost-writer or rapid-fire biographer of eminent men ... nor can it be done by some immature doctor of philosophy, suddenly 'come from the nowhere into the here,' who knows only what he had read." Instead, Shewmake writes that the biographer has to be "a Virginian whose ancestors had some part, however small, in the stirring events of the times in which [Wythe] lived." In addition, "he will be one who has himself labored in the several fields in which Wythe wrought so well. He will have been a teacher ... of the type exemplified by Wythe. He will of necessity be a lawyer and, preferably, a member of the judiciary ... [and] will have had experience in legislative work. ... Finally, he will be a man of scholarly attainments witl1 an understanding heart, in short, a gentleman." Shewmake, ''Honorable George Wythe,'' at 23-24. It is almost impossible that anyone today could meet all of these qualifications; the late U.S. senator and dean of the William and Mary Law School William B. Spong seems to have satisfied all of the requirements except that he never served on the judiciary. Of course Shewmake's comments are in some respects silly, for in noting the two foremost Virginia biographers of this century, Dumas Malone was neither a lawyer nor a politician (unlike Jefferson), and Douglas Southall Freeman was not a soldier (unlike Robert E. Lee and George Washington).</ref>

Thus, after briefly describing his legal and political career, this essay will examine Wythe's role as Revolutionary Virginia's foremost teacher of both the law and the political process, focusing especially on his seminal ten-year professorship at the College of William and Mary.
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==Section II==
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George Wythe was born in 1726 or 1727 at his family's home, Chesterville, in Elizabeth City County, Virginia.<ref>Unless otherwise noted, all information in this subsection, which briefly recounts Wythe's life from 1726 until 1779, comes from Dill, ''Wythe, Teacher of Liberty,'' supra note 3, at 3-41.</ref> His parents were Margaret Walker and Thomas Wythe (III), whose grandfather, the first Thomas, emigrated to Virginia in 1680. The first three Thomas Wythes all died quite young, although two lived long enough to serve in the Virginia House of Burgesses.

As for George Wythe's mother, she was the granddaughter of noted teacher, preacher, and controversialist George Keith. The Scottish Keith was "a promising mathematician and student of Oriental languages" before becoming a Quaker and joining the ministry.<ref>Id. at 4.</ref> Coming to America in 1685, Keith was headmaster of a Quaker school until he fell out with the sect because of doctrinal differences. After returning to England, he eventually joined the established church, and in 1702 Keith became the first Anglican missionary sent to America under the auspices of the Society for the Propagation of the Gospel in Foreign Parts. It appears that George Wythe inherited both his Christian name and much of his intelligence from his great-grandfather Keith, although he did not have the minister-teacher's "unbearable temper and carriage."<ref>Tyler, "George Wythe," supra note 3, at 52; Dill, ''Wythe, Teacher of Liberty,'' supra note 3, at 5.</ref>

George Wythe was the second of three children, and when his father Thomas (III) died young, an older brother, Thomas (IV), through primogeniture, inherited the family's Chesterville plantation; their other sibling was a sister, Anne, who married Charles Sweeney, and, as is noted below, a grandson of this union, George Wythe Sweeney, perpetrated one of the foulest deeds in Virginia history.

Because he was not in line to inherit the family plantation, it was determined to situate George in one of the professions, with the law being the eventual choice. His earliest schooling, however, was at the hands of his mother, who, because she was raised a Quaker, was unusually educated for a woman of the day. Besides the traditional basics, Margaret Walker Wythe's tutelage of her son included Latin and Greek. At some point Wythe also briefly attended William and Mary, although it is thought that it was only the college's grammar school.<ref>One source, Shewmake, ''Honorable George Wythe,'' supra note 3, at 8, states that Wythe entered William and Mary in 1740 at age fourteen, yet he does not cite to any evidence proving this assertion.</ref>

Wythe's professional instruction began in the mid-1740s, when he began an apprenticeship in the Prince George County law office of his uncle Stephen Dewey. As a leading attorney, Dewey's instructions could have proved quite valuable, yet Wythe later told a friend that his uncle "treated him with neglect, and confined him to the drudgeries of his office, with little, or no, attention to his instruction in the general science of law."<ref>Daniel Call, quoted in Dill, ''Wythe, Teacher of Liberty,'' supra note 3, at 9.</ref> One commentator has opined that posterity should maybe thank Dewey for his inattentions, for he may "have sharpened Wythe's appetite for learning in the deeper and richer historical basis of legal institutions, and above all, he seems to have given Wythe a thorough grounding in how not to teach!"<ref>Id. at 9 (emphasis in original).</ref>

After completing his legal apprenticeship, Wythe received his law license in 1746 and initially settled in Spotsylvania County. There he began a wide-ranging practice which included the counties of Caroline, Orange, and Augusta, and he also became married to attorney Zachary Lewis' daughter Anne. The young Mrs. Wythe died less than a year later, however, and several months after, in October 1748, Wythe returned to the Tidewater region, accepting an offer to become clerk of the two most important committees of the House of Burgesses.

These legislative responsibilities did not preclude the practice of law, so once in Williamsburg Wythe resumed his profession and was soon representing members of such influential Virginia families as the Blairs and Custises. In 1750, the young attorney was elected a Williamsburg Alderman, yet a much higher honor came four years later when he was appointed the colony's Attorney General. Wythe, the youngest attorney general in Virginia history,<ref>Shewmake, ''Honorable George Wythe,'' supra note 3, at 10; Clarkin, ''Serene Patriot,'' supra note 3, in the Forward.</ref> was chosen to succeed Peyton Randolph, who was visiting England, and he resigned the position once Randolph returned to the colony. While serving as attorney general, another honor came to Wythe when he was elected to the House of Burgesses from Williamsburg.

In 1755, Thomas Wythe (IV) died without an heir and his brother George inherited the Chesterville plantation in Elizabeth City County. It was also at this time that Wythe again married, to Williamsburg heiress Elizabeth Taliaferro, who, being fourteen or fifteen years old, was half of her husband's age. Despite the age difference, theirs was an extremely happy thirty-two year marriage, although their only child died in infancy.

Wythe, who suddenly found himself with his own substantial holdings as well as being married into a wealthy family, could at last "borrow time from his busy professional life for [the] study of the classics and early English literature and law." Such an opportunity was extremely welcomed, for one author has opined that the attorney "thirsted like a living Tantalus for the refreshing springs of the ancient authors."<ref>Dill, ''Wythe, Teacher of Liberty'', ''supra'' note 3, at 19.</ref> These pursuits had their obvious results, for Thomas Jefferson later called his law teacher "the best Latin and Greek scholar in the State.”<ref>Thomas Jefferson, "Notes for the Biography of George Wythe," enclosed in Jefferson to John Saunderson, August 31, 1820, in ''The Writings of Thomas Jefferson'', ed. Andrew A. Lipscomb (1903), I, 167.</ref>

Wythe, while pursuing such academic subjects, did not neglect his professional responsibilities, for he continued his rapid assent [sic] into Virginia's highest legal and political circles. His law practice continued to prosper, and at some early time he became admitted to practice before the colony's highest court, the General Court. The attorneys who practiced before the appellate General Court were a highly select group, usually no more than ten in number, and included such names as Peyton and John Randolph, Robert Carter Nicholas, and Wythe's lifelong rival, Edmund Pendleton. Wythe soon had one of the most notable practices before the court, and Jefferson later noted that Wythe "held without competition the first place at the bar of our general court for 25 years."<ref>Thomas Jefferson to Ralph Izard, July 17,1788, in ''The Papers of Thomas Jefferson'', ed. Julian P. Boyd et al. (27 vols. to date, 1950-1997), XIII, 372.</ref>

As for public service, Wythe lost a race for the House of Burgesses in 1756 when he ran for one of the two seats allotted to his native Elizabeth City County. Two years later, however, he was returned to the House by being elected to the William and Mary seat, for which the electorate was only the college's President and its Masters. In 1761 Wythe received another connection to the college when he was appointed to its Board of Visitors; by this time, however, he was no longer representing the college in the Burgesses, for overcoming his previous defeat he had won election to one of the Elizabeth City County seats.

Wythe was elected Clerk of the House of Burgesses in 1768, a position he would hold for six years, and that year also saw him selected as Mayor of Williamsburg. In addition, his growing influence led to his 1765 appointment to a committee, along with Peyton Randolph, John Randolph, Benjamin Waller, and Robert Nicholas, to collect, edit, and publish the colony's statutes, with the resulting collection being known as the "Code of 1769."

As the Revolution approached, Wythe became known as an ardent rebel, and Jefferson later recalled that "instead of higgling on half-way principle, as others did ... [Wythe] took his stand on the solid ground that the only link of political union between us and Great Britain, was the identity of our Executive; that that nation and its Parliament had no more authority over us, than we had over them."<ref>Jefferson, "Notes of Wythe," supra note 12, at I, 167-68.</ref> An early example of these feelings came in the 1760s, when Wythe's "[[Remonstrance to the House of Commons|remonstrance against the Stamp Act]] was very bold and strong.”<ref>Tyler, "George Wythe," ''supra'' note 3, at 59.</ref> Thus, with such sentiments added to his superb qualifications, it was no surprise when, on August 11, 1775, Wythe, along with Jefferson, Peyton Randolph, Richard Henry Lee, Richard Bland, Benjamin Harrison, and Thomas Nelson, was elected to the Second Continental Congress.

Wythe served in Congress until December 1776, and despite making few speeches he cultivated many friendships and wielded much influence. John Adams was much impressed by Wythe's legal abilities, while Dr. Benjamin Rush of Philadelphia thought him "[a] profound lawyer and able politician. He seldom spoke in Congress, but when he did his speeches were sensible, correct and pertinent. I have seldom known a man [to] possess more modesty, or a more dove-like simplicity and gentleness of manner."<ref>Quoted in Dill, ''Wythe, Teacher of Liberty'', supra note 3, at 30.</ref>

By February 1776 Wythe was strongly arguing for independence, yet he did not initially sign the Declaration of Independence in July, for the Virginia delegation had earlier selected Wythe and Richard Henry Lee to travel back to Virginia to attend the convention then drafting a state constitution. The two men left Philadelphia on June 13, yet by the time they arrived in Virginia the drafting, led by George Mason, was well in hand. Wythe, however, was appointed to a small committee to design a state seal, and it is thought that he played a decisive role in choosing the final design.

Wythe returned to Philadelphia in August, and he signed the Declaration in a space his colleagues had specifically left blank in his honor at the top of the delegation's signatures. Wythe remained in Congress until late that fall, returning to Virginia because he, Jefferson, Pendleton, George Mason, and Thomas Ludwell Lee had been appointed to a committee to revise the state's laws. Earlier, there had been several collections of the laws, such as the Code of 1769 produced by Wythe and his colleagues, but this was to be the first thorough revision of all the Commonwealth's statutes. The committee eventually consisted of only three members, Wythe, Jefferson, and Pendleton, and they divided the work such that Jefferson's area of responsibility would be the common law up to 1619, Wythe was to study the British statutes enacted since 1619, and Pendleton was to look at all Virginia-based law.

The work of the revisors was complete in June 1779, when they sent 126 bills to the General Assembly. The legislature, however, dragged its feet in enacting the proposals, and it was only six years later in 1785 that through the efforts of future President James Madison many of the revisors' suggestions were adopted. One reason for this delay might have been that while the majority of the 126 proposed statutes only reiterated the existing law, minus arcane or inappropriate language, under Jefferson's lead the revisors had suggested several profound alterations. Among the suggestions eventually approved were the abolish¬ing of primogeniture, transforming estates in fee tail to fee simple, and establishing religious freedom. Other suggestions equally audacious, however, such as bills promoting public education, a public library, and enlightened penal policies, did not win approval.<ref>For the text of, and commentary about, the proposed laws coming out of the revisal, see the ''Jefferson Papers'', ''supra'' note 13, at II, 303-665.</ref>

While on the revision committee in 1777, Wythe was chosen as Speaker of the House of Delegates (as it was now termed under the new Constitution). An even greater honor came the following year upon the restructuring of Virginia’s court system, when the General Assembly created three different superior courts which would have appellate jurisdiction in their specialties. A five-member General Court would hear cases at law, while a three-man High Court of Chancery would examine suits in equity, and a Court of Admiralty would make decisions involving maritime law. In addition, the judges of all three courts would, together, form a supreme Court of Appeals.

Of the three separate superior courts, it was considered that the Chancery court, which would meet in April and September, was the most important, and only the foremost attorneys in Virginia were considered in filling the three slots. According to Nathaniel Beverly Tucker, few attorneys of the day had all of the qualifications necessary for the position, for "Integrity and talent were abundant, but a learned lawyer was indeed a rara avis." George Wythe, however, was "the one man in the state who had any claims" to meeting all of these qualifications.<ref>Quoted in Anderson, "Teacher of Jefferson and Marshall," ''supra'' note 1, at 334-35. According to Tucker, ''Without ambition, without avarice, taking no pleasure in society, [Wythe] was by nature and habit addicted to solitude, and his active mind found its only enjoyment in profound research. "Wythe devoted himself to "[t]he language of antiquity, the exact sciences, and the law," and "he became a profound lawyer for the same reason than he was a profound Greek scholar, astronomer and mathematician." ''Id''.</ref> The members of the General Assembly obviously agreed, for on January 14, 1778, the names of Wythe, Edmund Pendleton, and Robert Carter Nicholas, were placed in nomination for the new court, and they were elected unanimously.

Thus, by the fall of 1779 Wythe was well ensconced on the High Court of Chancery. By filling this high judicial station, however, he could no longer practice law, nor could he serve in the state or national legislature. Thus, it is likely that Wythe was looking for a new challenge, and such was soon offered by his former student Thomas Jefferson.
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==Section III==
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During his first fifty years, George Wythe did not solely devote himself to politics and the law, for he also gained an enviable reputation as a teacher of young men. Although there likely were earlier students,<ref>William Clarkin, ''Serene Patriot'', ''supra'' note 3, at 142, states that Jefferson was Wythe's first pupil, while W. Edwin Hemphill believes that Wythe's first educational service may have come several years earlier, in 1757-58, when he served as guardian of a Lockey Collins, who was a student at the grammar school at William and Mary. Hemphill, ''Wythe, America's First Law Professor," ''supra'' note 3, at 37. Several sources, however, suggest that Wythe was tutoring students well before Jefferson, including William F. Swindler, who states that ''Wythe's reputation as a teacher and lawyer was established by the time Jefferson turned to him in 1762." Swindler, "America's First Law Schools," ''supra'' note 1, at 6. Likewise, one of Wythe's own students, Littleton Waller Tazewell, stated that to the best of his knowledge, "there was no period of [Wythe's] life ... after he attained to manhood, during which he did not superintend the education of several young men." Quoted in Kirtland, ''George Wythe'', ''supra'' note 3, at 120. Lyon G. Tyler also leaves the impression that Wythe was known for his teaching before tutoring Jefferson, for he states, "there is something curious in a young law student like Thomas Jefferson choosing Mr. Wythe as his instructor, when Peyton and John Randolph, sons of his great-uncle, Sir John Randolph, were also living in Williamsburg, and were eminent lawyers and his attached friends." Tyler, "George Wythe," ''supra'' note 3, at 67.</ref> the first known person to study law under Wythe was Thomas Jefferson (1743-1826). After attending William and Mary for two years, Jefferson began his legal apprenticeship in 1762, and he spent three years reading under Wythe's supervision, although the majority of the first year was spent at home in Albemarle county. As was traditional, Jefferson first read ''Coke on Littleton'', and his later readings touched on both the theoretical and practical sides of the law; among the law books he purchased at this time were several volumes on pleading as well as collections of Virginia and British statutes.

Wythe also had Jefferson read widely in the humanities, for the latter purchased and read various works on history, literature, philosophy, religion, and science. As for his routine, shortly after he was admitted to practice Jefferson advised an aspiring lawyer to study such subjects as science, ethics, and religion before breakfast, devote the hours between eight o'clock and noon solely to the law, and then spend the afternoon and evening reading history and literature. While Jefferson could have followed such a rigorous reading schedule while at home, it is known that part of his time in Williamsburg was also spent attending sessions of the General Court and following the legislature; in addition, the young student frequently dined at the Governor's Palace with Wythe, William and Mary professor William Small, and Governor Francis Fauquier, and he also spent much time practicing the violin.<ref>Frank L. Dewey, ''Thomas Jefferson, Lawyer'' (1986), 9-17; Dumas Malone, ''Jefferson, the Virginian'' (1948), 62-87.</ref>

Jefferson, of course, would go on to author the [[Declaration of Independence]], serve as Governor of Virginia, Minister to France, Secretary of State, Vice President, and our nation's third President, and, in his retirement, found the University of Virginia. Throughout this impressive career, the bond between Jefferson and his legal mentor remained extraordinarily strong, and in later years Jefferson would refer to Wythe at his "second father,”<ref>Quoted in Brown, ''American Aristides'', ''supra'' note 3, at 226; Carrington, "University Legal Education," ''supra'' note 3, at 533.</ref> while Wythe "often said that [Jefferson was] dearer to him than any relation he had."<ref>William DuVal to Thomas Jefferson, 1806, quoted in Julian P. Boyd, "The Murder of George Wythe," in ''The Murder of George Wythe: Two Essays'' (1955), 24.</ref>

While Wythe undoubtedly taught other law students in the 1760s besides Jefferson, his next known student is [[James Madison, Bishop|James Madison]] (1749-1812), who studied law during 1772-1773.<ref>Dill, ''Wythe, Teacher of Liberty'', supra note 3, at 42.</ref> Madison was a second cousin to the man of the same name who would follow Jefferson in the Presidency, and despite being admitted to the bar he never practiced law. Instead, Madison, in 1773, became professor of natural philosophy and mathematics at William and Mary, and two years later he was ordained in the Church of England. In 1777, the Reverend Madison was elected President of William and Mary, a position which he held for the remainder of his life, and in 1790 he also became the first Episcopal Bishop of the Diocese of Virginia.<ref>On Madison, see "James Madison," ''DAB'', ''supra'' note 3, at XII, 182-84.</ref>

Following Madison as a Wythe pupil was [[St. George Tucker]] (1752-1827), a native of Bermuda who came to Virginia specifically to study under Wythe. Tucker had also been formally enrolled at the Inner Temple in London, but his father, upon learning about Wythe's instruction, wrote that with "so good a tutor," Tucker should stay in Williamsburg. Tucker studied under Wythe from 1773 to 1775, and he later succeeded his teacher as [[Professor of Law and Police]] at William and Mary (1790-1804). In addition, Tucker served on the Virginia Court of Appeals, was the United States Judge for the District of Virginia, and edited the [[Blackstone's Commentaries|first American edition]] of [[Commentaries on the Laws of England|Blackstone's ''Commentaries'']].<ref>Henry Tucker to St. George Tucker, August 1,1772, quoted in Swindler, "America's First Law Schools," ''supra'' note 1, at 6; Dill, ''Wythe, Teacher of Liberty'', ''supra'' note 3, at 42; Charles T. Cullen, "St. George Tucker," in Bryson, ''Legal Education in Virginia'', ''supra'' note 3, at 657-86.</ref>

Another early Wythe pupil was [[James Innes]] (1754-1798), a one-time attorney general of Virginia who was known for his both great oratory and legal ability. Although forgotten today, Innes would have achieved greatness but for ill-health and an untimely death.<ref>On Innes, see "James Innes," ''DAB'', ''supra'' note 3, at IX, 486-87. Sources listing Innes as a Wythe student include Bryson, ''Legal Education in Virginia'', ''supra'' note 3, at 21; Brown, ''American Aristides'', ''supra'' note 3, at 228; Tyler, "George Wythe," ''supra'' note 3, at 72; Hugh Blair Grigsby, ''The History of the Virginia Federal Convention of 1788'' (1890), I, 75 n.90, and ''Convention of 1776'', ''supra'' note 3, at 123; and Hemphill, "Wythe, America's First Law Professor," ''supra'' note 3, at 2.</ref> His brother Harry Innes (1752-1816), a Federal judge in Kentucky from 1789 until his death, has been listed by one historian as an early Wythe student, although another scholar states that this teaching was "not likely."<ref>On Innes, see "Harry Innes," ''DAB'', ''supra'' note 3, at IX, 485-86. Hugh Blair Grigsby, the Commonwealth's leading historian during the middle decades of the nineteenth century, lists Innes as a Wythe student, although A.T. Dill states that it is "not likely [that he] received private training under Wythe." Dill, ''Wythe, Teacher of Liberty'', ''supra'' note 3, at 99 n.319.</ref>

A handful of other prominent attorneys have also been mentioned as possible Wythe students before he assumed the professorship at William and Mary. The foremost among these is Edmund Randolph (1753-1813), the first Attorney General of the United States, Governor of Virginia, and United States Secretary of State. Three twentieth-century sources cite Randolph as an early Wythe student,<ref>Shepard, "George Wythe," in Bryson, ''Legal Education in Virginia'', ''supra'' note 3, at 754; Shewmake, ''Honorable George Wythe'', ''supra'' note 3, at 17; Devitt, ''William and Mary," supra note 3, at 429. W. Edwin Hemphill, however, could find no evidence of this relationship. Hemphill, ''Wythe, America's First Law Professor," ''supra'' note 3, at 2.</ref> although it has traditionally been assumed that he received his legal education under his father John, a one-time Virginia Attorney General;<ref>See, e.g., Moncure Daniel Conway, ''Omitted Chapters of History Disclosed in the Life and Papers of Edmund Randolph'' (1888), 14; "Edmund Randolph," ''DAB'', ''supra'' note 3, at XV, 353-55.</ref> the latest colonial Williamsburg pronouncement is that it is currently unknown with whom Randolph studied law.<ref>Stated in the Colonial Williamsburg Foundation's online ''Historical Almanack''.</ref> Other possible students include Samuel Jordan Cabell (1756-1818), who served in Congress from 1785 to 1803,<ref>Hugh Blair Grigsby lists Cabell as an early Wythe student. ''Virginia Federal Convention'', ''supra'' note 26, at I, 75 n.90. This relationship, however, has been labeled "not likely" by A.T. Dill. ''Wythe, Teacher of Liberty'', ''supra'' note 3, at 99 n.319.</ref> as well as four additional delegates to Virginia's Ratifying Convention, Thomas Read (c. 1735-1817),<ref>Grigsby, ''Virginia Federal Convention'', ''supra'' note 26, at I, 75 n.90. In another work, Grigsby states that Read, "though not a lawyer by profession, was well versed in the law." ''Convention of 1776'', ''supra'' note 3, at 105. Unlike for several other names, Dill does not question this relationship, ''Wythe, Teacher of Liberty'', supra note 3, at 99 n.319, although it seems more unlikely than the others he does doubt.</ref> James Mercer (1736-1793),<ref>Kirtland, ''George Wythe'', ''supra'' note 3, lists a James Mercer as one of Wythe's students. On Mercer, see "James Mercer," ''DAB'', ''supra'' note 3, at XII, 542. It is possible that James Mercer has been confused with his younger half-brother, John F. Mercer (1759-1821), a onetime governor of Maryland.</ref> Andrew Moore (b. 1752),<ref>Hugh Blair Grigsby states that Moore attended in about 1772 a course of lectures at William and Mary given by Wythe, ''Virginia Federal Convention'', ''supra'' note 26, at II, 32, although this date, of course, is far too early for Wythe 's institutional teaching. Of course Moore could have apprenticed in Wythe's law office.</ref> and Warner Lewis (ca. 1747-1791).<ref>Hugh Blair Grigsby lists as one of Wythe' s pupils a "Lewis" who attended Virginia's ratifying convention, and there were two delegates by that name, Thomas Lewis (b. 1718) of Rockingham, and Warner Lewis (ca. 1747-1791) of Gloucester. The former, of course, would have been too old to study under Wythe. See Grigsby, ''Virginia Federal Convention'', ''supra'' note 26, at I, 75 n.90, and II, 20, 374 n.349.</ref>

While Wythe's pre-Revolutionary teaching undoubtedly encompassed more students than just Jefferson, Madison, Tucker, and Innes, his reputation as a great teacher rests principally on his connection to the College of William and Mary, through which his teaching would become available to a much wider audience.
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==Section IV==
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Founded in 1693, the College of William and Mary was where the sons of the Virginia gentry went to be educated when they did not go abroad. While normally a staid institution that saw little controversy, this changed dramatically at the start of Revolution, for at that time the student-body was "staunchly rebel," while the faculty was dominated by Tories, the most notorious being the school's President John Camm. When student, and private Wythe pupil, James Innes raised a company during the first days of the War, he was condemned by the faculty, and this raised the ire of the school's Visitors, one of whom was George Wythe. The Visitors responded to the faculty's Toryism by forcing out both the Master of the Indian School and the Professor of Divinity, and when President Camm disagreed with the Visitors' authority for such actions, he too was suspended.<ref>Clarkin, ''Serene Patriot'', ''supra'' note 3, at 141.</ref>

To replace Camm, the Visitors in the Spring of 1777 selected Wythe's former law pupil James Madison as the College's new President; although only twenty-eight, the Reverend Madison was already known for both his great intellect and his republican sympathies.<ref>''Id.'' at 142.</ref> A more sweeping attempt to alter the college occurred two years later, when Thomas Jefferson proposed to drastically change the structure of his alma mater through the revised laws that he, Wythe, and Pendleton were then formulating.

Jefferson wished to lessen the ties of the school to the established church, increase its public support, and totally revamp its curriculum. As for the latter, in bill number 80 of the revisal, Jefferson proposed the creation of eight professorships at William and Mary: moral philosophy, fine arts, and the laws of nature and nations; law and police; history, civil and ecclesiastical; mathematics; anatomy and medicine; natural philosophy and natural history; ancient languages, oriental and northern; and modern languages. The professor of law and police would be responsible for teaching municipal law, which included the common law, equity, and merchant, maritime, and ecclesiastical law, as well as economical law, defined as politics and commerce.<ref>For the text of bill 80 as well as commentary, see the ''Jefferson Papers'', ''supra'' note 13, at II, 535-42.</ref>

Professorships in law, history, medicine, and modern languages would be new to the faculty, and Jefferson proposed to delete the chair in divinity as well as the Indian/grammar school. He later wrote that his purpose was "to enlarge [William and Mary's] sphere of science, and to make it in fact an University."<ref>Thomas Jefferson's 1821 "Autobiography," in ''The Writings of Thomas Jefferson'', ed. Paul L. Ford (1892), I, 66.</ref>

Ironically, despite Jefferson's purpose of changing the institution from a church-based into a public-based institution, revisal bill 80 was killed in the General Assembly by religious dissenters; Jefferson later wrote, "the religious jealousies ... of all the dissenters took alarm lest this might give an ascendancy to the Anglican sect and refused acting on that bill.”<ref>''Id.'' at I, 67. James Madison again brought the bill up in the General Assembly in 1785, but it was again not acted upon.</ref>

This defeat did not deter Jefferson from his goal of restructuring the college, however, for after his election as Governor of Virginia in 1779 he also became a member of the William and Mary Board of Visitors, and through this body he succeeded in seeing through most of the changes which had been blocked by the General Assembly. On December 3, 1779, the Board of Visitors gave the professors and president of the college, acting collectively as "the Corporation," the power to revise the institution's statutes and by-laws, and the following day the Corporation followed Jefferson's instructions by making numerous changes in the school's structure.<ref>Kirtland, ''George Wythe'', ''supra'' note 3, at 114-15.</ref> The Sage of Monticello later recalled: "I effected ... a change in the organization of [William and Mary] by abolishing the Grammar school, and the two professorships of Divinity and Oriental languages, and substituting a professorship of Law and Police, one of Anatomy, Medicine and Chemistry, and one of Modern languages.”<ref>Jefferson's "Autobiography," in ''Writings of Jefferson'', ''supra'' note 39, at 1, 69-70.</ref> The college's charter, which could only be changed by action of the General Assembly, limited the school to six professorships, so Jefferson's initial plans had to be altered by the deletion of both the traditional professorship of oriental languages and the proposed professorship of history.

The chair in law was the first of its kind at an American university, and second in the English-speaking world, only antedated by Oxford's Vinerian chair of law, first held in 1758 by Sir William Blackstone.<ref>Dill, ''Wythe, Teacher of Liberty'', ''supra'' note 3, at 42.</ref> As for the seemingly strange name, "law and police," the latter word "did not refer to enforcement of the criminal law but was a transliteration of the Greek word for state. In the context of the William and Mary curriculum it meant government or political science."<ref>Bryson, ''Legal Education in Virginia'', ''supra'' note 3, at 22. Another source has stated that the word police "meant civil order or administration." Dill, ''Wythe, Teacher of Liberty'', ''supra'' note 3, at 42.</ref>

While certainly revolutionary, that the first institutionalization of legal education in America happened in Virginia should come as no surprise. In most of the colonies the bar had come into much disfavor by generally siding with the crown, but in Virginia the opposite was true, for the revolution had been spearheaded by the colony's lawyers. Jefferson saw a professorship in law and politics as a way to teach not only the legal profession, but also republicanism, and in Virginia this idea was met with "enthusiastic approval."<ref>Bryson, ''Legal Education in Virginia'', ''supra'' note 3, at 22. Many other sources agree that having disposed of the royalist faculty, the Visitors saw the college as "a training ground for republican citizenship." See, e.g., Brown, ''American Aristides'', ''supra'' note 3, at 200; Hemphill, ''Wythe, America's First Law Professor," ''supra'' note 3, at 44.</ref>

As for who would fill the new chair of law, the obvious choice, in fact the only choice, was George Wythe. The Chancellor had a profound knowledge of the law, he had already demonstrated great skill in imparting such knowledge to intelligent young men, and just as important, he was a zealous republican. W. Hamilton Bryson has stated that "It is difficult to conceive that anyone more acceptable, more appropriate, more competent, or more scholarly could have been found; no one else was considered."<ref>Bryson, ''Legal Education in Virginia'', ''supra'' note 3, at 22.</ref>

On December 4, 1779, the Visitors appointed three men to fill the new chairs, all of whom "were thoroughly in sympathy with the visitors" regarding the ongoing struggle with Great Britain.<ref>Lyon G. Tyler, "A Few Facts from the Records of William and Mary College," 4 ''Papers of the Amer. Hist. Assn.'' 129, 132 (1890).</ref> Charles Bellini was named Professor of Modern Languages, Dr. James McClurg was selected as Professor of Anatomy and Medicine, and Wythe became the Professor of Law and Police.<ref>Brown, ''American Aristides'', ''supra'' note 3, at 201.</ref> These three, plus President Madison, who would also hold the Chair of Natural Philosophy and Mathematics, and the Reverend Robert Andrews, who was Professor of Moral Philosophy, the Laws of Nature and of Nations and of the Fine Arts, would comprise the institution's faculty.<ref>See, e.g., Clarkin, ''Serene Patriot'', ''supra'' note 3, at 142; Brown, ''American Aristides'', ''supra'' note 3, at 201.</ref>

Besides the addition and deletion of various subjects, another change made by the faculty was the adoption of the elective system. No longer would the school have any mandatory subjects; rather, students could decide which subjects and under which professors they wished to learn. Accordingly, at the first faculty meeting after the reorganization, held on December 29, 1779, Wythe and his colleagues resolved that out of the courses offered by Wythe, Madison, and Andrews, "a Student on paying annually one thousand Pounds of Tobacco shall be entitled to attend any two ... and that for fifteen hundred Pounds he shall be entitled to attend the said three Professors."<ref>Faculty resolution quoted in Tyler, "Records of William and Mary," supra note 47, at 133.</ref> With the changes in structure, "William and Mary now became a university, the first such in the new nation,"<ref>Clarkin, Serene Patriot, supra note 3, at 142; see also Tyler, "Records of William and Mary," supra note 47, at 135.</ref> and it became known as "The University of William and Mary."<ref>See, e.g. Clarkin, ''Serene Patriot'', ''supra'' note 3, at 183; Brown, ''American Aristides'', ''supra'' note 3, at 217; Anderson, "Teacher of Jefferson and Marshall," ''supra'' note 1, at 334; Tyler, "Records of William and Mary," ''supra'' note 47, at 134-35; Shewmake, ''Honorable George Wythe'', ''supra'' note 3, at 16.</ref>
</blockquote>
==Section V==
<blockquote>
George Wythe entered into his duties as Professor of Law and Police at William and Mary immediately after his December 1779 appointment, and such alacrity was necessary, for the school year was scheduled to begin on January 17.<ref>Clarkin, ''Serene Patriot'', ''supra'' note 3, at 143.</ref> As for the yearly schedule, the month of April was designated as the school's spring vacation, and the term following would last from the first of May into July. A fall term would then begin around October first.<ref>It is interesting to note that William and Mary would not be in session during the entire months of April and September, the two months during which Wythe would have to hold court. See Charles T. Cullen, "New Light on John Marshall's Legal Education and Admission to the Bar," 16 ''Am.] Legal Hist.'' 345, 345 (1972).</ref>

Undoubtedly drawing on his previous teaching, Wythe quickly designed an innovative, rigorous, and enjoyable curriculum for his students. He continued the tradition of having students read more legal treatises and then systematically forming the notes they took into an alphabetized legal notebook/dictionary that would summarize the current common law of the jurisdiction—a process typically called "common placing" because the notebooks were known as "commonplace books."<ref>''Id.'' at 348.</ref> Although he only finished commonplacing legal subjects through the letter "L," John Marshall's notebook is one of the best sources in determining the readings Wythe assigned his pupils, and most of the future Chief Justice's information apparently came from three works: Bacon's ''New Abridgement of the Law''; Blackstone's ''Commentaries''; and the 1769 ''Acts of Assembly ... of Virginia''.<ref>William F. Swindler, "John Marshall's Preparation for the Bar—Some Observations on His Law Notes," 11 ''Am.] Legal Hist.'' 207, 208 (1967). Without citing any sources, Jean Edward Smith in his ''John Marshall: Definer of a Nation'' (1996),78, states, "Every morning the students read law under Wythe's supervision: first Blackstone, then the traditional treatises, abridgements, and statutes. Wythe believed that mental vigor was greatest in the mornings, and he assigned the tough work early." As for the afternoons, they were supposedly "devoted to reading in related fields, particularly political philosophy," including Montesquieu and Hume.</ref>

In addition to assigning readings, Wythe also lectured twice a week.<ref>Smith, ''John Marshall'', ''supra'' note 56, at 78, without giving a source, states that Wythe's lectures were at noon on Tuesdays and Thursdays. It is known, however, that in 1784 Wythe was giving a law lecture on Tuesdays from 10:00 a.m. to noon. Thomas Lee Shippen to Dr. William Shippen, February 5, 1784, quoted in Clarkin, ''Serene Patriot'', ''supra'' note 3, at 156.</ref> No one knows the exact contents of Wythe's lectures, although some modern commentators state that Wythe intricately discussed the substantive and procedural details of the law, while others posit that the material was more theoretical in nature.<ref>See, for example, the discussion on different interpretations of John Marshall's commonplace book in Cullen, "New Light," ''supra'' note 54, at 347-48. Many commentators, such as Brown, ''American Aristides'', ''supra'' note 3, at 202-03, and Clarkin, ''Serene Patriot'', ''supra'' note 3, at 154, have suggested that John Marshall's commonplace book detailing Virginia's substantive law were notes taken from Wythe's lectures. Cullen, however, is of the opinion that ''Wythe's lectures probably dealt more with political theory than with substantive or procedural law," and in regard to the readings Wythe assigned, "The most Wythe seems to have done in his lectures in 1780 was to question his students on passages in these works." ''Id.'' at 348. See also Shepard, "George Wythe," in Bryson, ''Legal Education in Virginia'', ''supra'' note 3, at 753: "In the lectures [Wythe] stressed political theory and surveyed the rapidly developing realm of constitutional law, always striving to reach beneath the surface to the ideas which had shaped the common-law tradition."</ref> In reality, Wythe likely touched upon the major legal points of Blackstone and other sources,<ref>Yale president Ezra Stiles wrote in his diary on June 8, 1784, that "Blacston the Basis of Law Lectures in Wm & Mary Coll." Quoted in ''Jefferson Papers'', ''supra'' note 13, at VII, 302-03.</ref> paying especial attention to how Virginia's law was different from England's. It seems likely that Wythe also discussed materials more akin to political science, and since the first written constitutions in the English-speaking world had just been produced in various colonies, Wythe has been called the first commentator on constitutional law.<ref>Tyler, "George Wythe," ''supra'' note 3, at 68.</ref>

The best evidence of the nature of Wythe's lectures comes from 1810, when Governor John Tyler asked Thomas Jefferson to edit and publish Wythe's lecture notes. Tyler noted:
<blockquote>
Judge Roane has read them, or most of them, and is highly pleased with them, thinks they will be very valuable, there being so much of [Wythe's] own sound reasoning upon great principles, and not a mere servile copy of Blackstone, and other British commentators,—a good many of his own thoughts on our constitutions and the necessary changes they have begotten, with that spirit of freedom which always marked his opinions.<ref>Quoted in Brown, ''American Aristides'', ''supra'' note 3, at 225.</ref>
</blockquote>
In response, Jefferson declined this task, noting that he had not practiced law for thirty-seven years. For posterity's sake, this decision was extremely unfortunate, for the lecture notes were never published, and the manuscript's whereabouts has been unknown for over a century.

In addition to the lectures and readings, for his students Wythe designed two institutions which were new to North America. The first was a moot court, the concept for which likely came from the London Inns of Court, which, a couple of centuries previous, had held "mootings." These earlier exercises had seen the member-barristers deliver arguments on both sides of set cases;<ref>Dill, ''Wythe, Teacher of Liberty'', ''supra'' note 3, at 44.</ref> however, Wythe reversed the process by having the students themselves do the arguing.

Wythe decided to hold the moot courts in the courtroom of the Capitol, which was empty after the government moved to Richmond at the end of April 1780,<ref>Cullen, "New Light," ''supra'' note 54, at 346 n.5.</ref> and he and some of his colleagues acted as judges while the citizens of Williamsburg attended as spectators. Wythe student [[John Brown]] reported to his uncle in July 1780 that the "Moot Court [is] held monthly or oftener in the place formerly occupied by the Genl Court in the Capitol. Mr Wythe & the other professors sit as Judges[.] Our Audience consists of the most respectable of the Citizens, before whom we plead Causes given out by Mr Wythe [—] Lawyer like I assure you."<ref>John Brown to William Preston, July 6, 1780, in "Glimpses of Old College Life," 9 ''Wm. & Mary Qtly.'', 1st Ser., 18, 80 (1900).</ref>

Thomas Jefferson thought highly of the moot court concept, stating that in addition to teaching legal procedure, such an institution gave "opportunities to students of practicing their lessons in Rhetoric, of habituating themselves to think and to speak with method, and lessens the shock of the premier debut at the bar: so terrible is the first essay of strength before the public."<ref>Quoted in Shepard, "George Wythe," in Bryson, ''Legal Education in Virginia'', ''supra'' note 3, at 753.</ref> Of course it is now a universal practice in American law schools to have both a moot court classes in trial advocacy.

Wythe's second institutional innovation was the moot legislature. This too was held in the old Capitol, in the legislative chamber last used by the General Assembly on Christmas Eve 1779, and Wythe served as Speaker while his students debated the merits of proposed legislation. John Brown reported that Wythe "form'd us into a Legislative Body, consisting of about 40 members[.] Mr Wythe is speaker to the House, & takes all possible pains to instruct us in the Rules of Parliament. We meet every Saturday & take under our consideration those Bills drawn up by the Com[mit] tee appointed to revise the laws, the[n] we debate & Alter ... with the greatest freedom."<ref>''Id.''</ref>

Wythe designed his moot legislature to prepare his students for the leading roles that he anticipated them soon taking in the state and national legislatures, and his ultimate goal was to create a class of ardent, well-prepared republicans. Through an exercise that they very much enjoyed, his students learned both the intricacies of legislative maneuvering as well as the substance of important, relevant issues. While the 'students in 1780 debated the laws proposed by the recent revisal, the material used in Wythe's later classes included proposals then under consideration in both the General Assembly and Congress. For example, Tommy Shippen in 1784 wrote that an Impost measure recommended by Congress was then under debate in the moot legislature, and that he was attempting to have it defeated by severely altering it in committee.<ref>Brown, ''American Aristides'', ''supra'' note 3, at 204-05.</ref>

As would be expected, Wythe's students thought highly of both the moot court and the moot legislature, and John Brown noted: 'These Exercises, serve not only as the best amusement after severer studies, but are very usefull & attended with many important advantages."<ref>''Id.''</ref> Wythe's law class was undoubtedly the school's most popular, for even during its first year approximately half of William and Mary's eighty students enrolled to study under the law professor.<ref>Among other sources, see Dill, ''Wythe, Teacher of Liberty'', ''supra'' note 3, at 43. The source for the forty students claim was a letter from student John Brown in July 1780 stating that forty students were participating in Wythe's moot legislature. John Brown to William Preston, July 6, 1780, in "Glimpses of Old College Life," ''supra'' note 64, at 80. It is conceivable that the number of students attending Wythe's lectures was actually less, for one source, without giving any citations, states that the moot legislature was "open to any college student" and consisted of "virtually the entire student body." Cullen, "New Light," ''supra'' note 54, at 346. What evidence there is, however, suggests that Wythe's law course was the most popular at the school.</ref>

While the students obviously enjoyed the moot courts and moot legislatures, there were other things at William and Mary to add to a student's law studies as well. For example, the Phi Beta Kappa Society had been formed at William and Mary several years earlier, and one historian has stated that membership in this was "an essential part of law study at the College because of the opportunity to participate in its debates."<ref>Cullen, "New Light," ''supra'' note 54, at 346.</ref> In addition, there were the other courses offered at the college, and it has been suggested that Professor Andrews' course on moral philosophy was an important supplement to Wythe's because of its treatment of natural law.<ref>''Id.'' at 346.</ref> Wythe undoubtedly expected that the law students who came to Williamsburg without any prior collegiate training would also enroll in some of these other courses, for he "never wished to see young men [at William and Mary] who meant to stay but two years,—at least, unless they had made a considerable progress before."<ref>William Nelson to St. George Tucker, February 2, 1787, quoted in Brown, ''American Aristides'', ''supra'' note 3, at 230 n.39.</ref>

At the end of their studies, Wythe's students could receive the degree of Bachelor of Law, although because of the requirements it is likely that few did. For the degree, one would have to "have the requisites for [the] Bachelor of Arts [degree, and] must moreover be well acquainted with civil History, both Ancient and Modern, and particularly with municipal Law and police." As for what it would take to earn the Bachelor of Arts, "the Student must be acquainted with [the various] branches of the Mathematics, both theoretical and practical, ... Natural Philosophy[,] ... Logic, the Belles Lettres, Rhetoric, Natural Law, Law of Nations, ... Geography and of Ancient and Modern languages."<ref>Hughes, "The First American Law School," ''supra'' note 3, at 42-43. Although the college statutes quoted date from 1792, two years after Wythe's resignation; Hughes states that they were likely enacted "very soon after the organization of the law department." ''Id.'' at 43.</ref> In short, to earn the LL.B., one would have to successfully complete the courses offered by Professors Wythe, Madison, Andrews, and Bellini, as well as show knowledge in other subjects.

As for a student's daily routine, Tommy Shippen, who in 1784 was attending the lectures of Wythe and Madison, told his father:
<blockquote>
[B]efore Breakfast, I generally read an hour and a half, some times two hours in Blackstone or else am employed in compositions, which by the advice of my instructors I pay a great deal of attention to. From breakfast to dinner, I read Blackstone, Hume or Montesquieu. After dinner If I dine at home ... I play a piece of music on the violin, or read some entertaining book in French or ... some favorite Roman author Horace, Virgil or Terrence.... At night ... read ... until 10, 11, or 12 o'clock.... But as Mr. Wythe lectures every Tuesday and Mr. Madison every Thursday and Saturday ... I can read very little on those days between breakfast and Dinner, as we are at College from 10 to 12.<ref>74. Quoted in Clarkin, ''Serene Patriot'', ''supra'' note 3, at 156.</ref>
</blockquote>
Undoubtedly, the readings, lectures, moot courts, and moot legislatures were all important in Wythe's goal of educating the next generation to be skilled in both the law and public service. What should also not be overlooked, however, is the moral tone that Wythe set for his students. One biographer has stated that "Wythe's incorruptibility even in the smallest matters became legendary,"<ref>Dill, ''Wythe, Teacher of Liberty'', ''supra'' note 3, at 59.</ref> another has called Wythe's integrity "truly stunning,"<ref>Carrington, "University Legal Education," ''supra'' note 3, at 534.</ref> and a contemporary minister stated that Wythe was "the only honest lawyer he ever knew."<ref>Anderson, "Teacher of Jefferson and Marshall," ''supra'' note 1, at 331, quoting Bishop William Meade, ''Old Churches, Ministers, and Families in Virginia'', who was, in turn, quoting a Reverend Lee Massey.</ref> While practicing law, if Wythe ever doubted the truth of what a client told him, he would either drop the case or require the client to swear an oath.<ref>Tyler, "George Wythe," ''supra'' note 3, at 73.</ref> Many compared Wythe to Aristides the Just,<ref>Tyler, "George Wythe," ''supra'' note 3, at 81; Boyd, "Murder of Wythe," ''supra'' note 22, at 6. In fact, the latest biography of Wythe is entitled ''American Aristides'', ''supra'' note 3.</ref> while Thomas Jefferson made a different classical allusion:
<blockquote>
No man ever left behind him a character more venerated than George Wythe. 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, without the avarice of the Roman; for a more disinterested person never lived.<ref>Jefferson, "Notes of Wythe," ''supra'' note 12, at I, 169-70.</ref>
</blockquote>
As would be expected, Jefferson was quite proud of Wythe's law class, and in July 1780 he told his future successor James Madison, "Our new institution at the college has had a success which has gained it universal applause. Wythe's school is numerous. They hold weekly courts and assemblies in the capitol. The professors join in it; and the young men dispute with elegance, method and learning." Jefferson then revealed what he saw as the true mission of Wythe's teaching by stating: "This single school by throwing from time to time new hands well principled and well informed into the legislature will be of infinite value."<ref>Thomas Jefferson to James Madison, July 26, 1780, in ''Jefferson Papers'', ''supra'' note 13, at III, 507.</ref>
</blockquote>
==Section VI==
<blockquote>
While Wythe's classes got off to a splendid start, the simmering conflict with Britain caused much concern by the latter months of 1780. Much of this centered on the fear of an enemy invasion into Virginia, the threat of which greatly affected the work of the college. At the end of October, Wythe student John Brown wrote that the "Invasion of the English" was "expected daily," and the college therefore had been "intirely deserted by every Stud[en]t but one or two who are sick." He also added that "it is more than probable that College will be suspended for some time[.] Mr Madison [is] talking of resigning his Professorship, & the Stud[en]ts [have] all turned Soldiers & everythin[g is] in the utmost Confusion."<ref>John Brown to William Preston, October 27, 1780, in "Glimpses of Old College Life," ''supra'' note 64, at 83.</ref>

These fears were fully realized on January 5, 1781, when troops under Benedict Arnold occupied Williamsburg, and although they did not stay long, the raid disrupted the college's winter session. Despite the interruption, Wythe advertised that his classes would reconvene on May 1, 1781, yet if such happened the session lasted only a few weeks. This was because Cornwallis and his British troops entered Williamsburg in June of 1781, after which William and Mary remained closed for approximately eighteen months.<ref>Brown, ''American Aristides'', ''supra'' note 3, at 208; Clarkin, ''Serene Patriot'', ''supra'' note 3, at 145-46.</ref>

On July 4, 1781, Cornwallis evacuated Williamsburg on his way to Yorktown, but shortly thereafter Lafayette and the French occupied the college town, followed by Washington and the Americans in the middle of September. Upon the invitation of Wythe, Washington set up his headquarters in the law professor’s residence,<ref>Clarkin, ''Serene Patriot'', ''supra'' note 3, at 147; Brown, ''American Aristides'', ''supra'' note 3, at 211.</ref> and after the British surrender at Yorktown, the French encamped in Williamsburg for nine months, with Rochambeau staying in the Wythe house. The French leaders appear to have been quite taken with the still-closed William and Mary, for Chastellux wrote: "The beauty of the building is surpassed by the richness of its library, and still farther by the distinguished merit of... its professors, such as the Doctors Madison, Wythe, Bellini ... who may be regarded as living Books." The French general then noted that these professors "have already formed many distinguished characters, ready to serve their country in the various departments ofgovernment."<ref>Quoted in Clarkin, ''Serene Patriot'', ''supra'' note 3, at 149.</ref>

Unfortunately, the average French soldier was less inclined to honor the college and its vicinity, and this caused Wythe, only six days after the surrender at Yorktown, to write Washington concerning the institution's protection. Wythe mentioned that "until the british invasion, the university was in a prosperous state. A respectable number of young gentlemen in it were pursuing their studies with such assiduity, and some of them had made such progress, as I venture to say, would have given you pleasure." The professor of law was confident that such success would continue after peace was restored, but he wished Washington to ask Rochambeau to make sure that his officers protected the college, especially its "costly library [and] a valuable apparatus for making philosophical experiments."<ref>George Wythe to George Washington, October 25, 1781, quoted in Brown, ''American Aristides'', ''supra'' note 3, at 211-12.</ref>

Wythe's fears proved prescient, for a couple of months later the carelessness of the French caused the Governor's Palace and a wing of the College to be destroyed by fire, including the much prized library and scientific equipment. Thus, there likely was much relief when the French finally began evacuating Williamsburg on July 1, 1782, a process which took the remainder of the summer. It is unknown when, exactly, Wythe was able to restart his classes, although it obviously took some time to get the college back in the condition in which it could regain its former functions.<ref>Dill states that upon the evacuation of the French, "it was several years before the buildings were rehabilitated." ''Wythe, Teacher of Liberty'', ''supra'' note 3, at 54. The date when Wythe was able to restart his classes is unknown, although one source states that "By early 1782 at the latest, Wythe's classes were in full swing once more." Kirtland, ''George Wythe'', ''supra'' note 3, at 118. This, however, seems far too early, for the French had not even left Williamsburg at that point, and all available evidence points to 1783.</ref>

It appears, however, that Wythe was able to restart his classes sometime in 1783, and late that year he told his friend John Adams that he was once again settled in Williamsburg, "assisting, as professor of law and police in the university there, to form such characters as may be fit to succeed those which have been ornamental and useful in the national councils of America."<ref>George Wythe to John Adams, December 5, 1783, quoted in Clarkin, ''Serene Patriot'', ''supra'' note 3, at 156.</ref>

Earlier that year, Richard Henry Lee wrote Wythe that Lee's son Ludwell was again going to study law under Wythe, and this letter is notable for giving evidence that young men from neighboring states would be venturing to Williamsburg to study under Wythe. Lee wrote: "I am happy to be informed that sensible men in the neighboring Countries, entertain a proper sense of the benefits to be derived from your benevolent attention to the instruction of youth; as I understand that young gentlemen now of Philadelphia propose to finish their studies with you."<ref>Richard Henry Lee to George Wythe, February 28, 1783, in ''The Letters of Richard Henry Lee'', ed. James Curtis Ballagh (1911), II, 279.</ref>

Within a short period Wythe's classes regained their former size, and the teacher's methods and purposes remained as before, especially the nurturing of future state and national leaders through such devices as the moot legislature. In February 1784, Wythe student Tommy Shippen wrote his father: "Last Saturday was the day of my political birth, if I may call so, the day on which I first assumed the character of a Legislator; for then I delivered an oration for the first time in our grand and august Assembly." Shippen noted that "very lately Mr. Wythe has [had] a lofty presidential Seat erected [in the legislative chamber], which adds very much to his dignity and may with great propriety be called his hobby horse.... This throne has a greater effect in throwing a damp upon the spirits of the speaker, than you can imagine." Despite being extraordinarily nervous, after delivering his first speech Shippen felt amply rewarded, by both the experience gained and the applause he received from his fellow students.<ref>Thomas Lee Shippen to Dr. William Shippen, February 5, 1784, quoted in Clarkin, ''Serene Patriot'', ''supra'' note 3, at 156; Brown, ''American Aristides'', ''supra'' note 3, at 204.</ref>

Not only the students but also various visitors to the college thought quite highly of Wythe's program. In 1784, for example, Walker Maury, who had just moved from Orange county to become the headmaster of Williamsburg's grammar school, wrote Thomas Jefferson:
<blockquote>
As to the university, I cannot conceive an institution better planned, or more judiciously managed for the forming, either the lawyer, or the statesmen. You can judge better than I can, what advantages youth must reap from meeting twice a week in Mr. Wythe's school, and going thro all the forms of pleadings of a court of judicature, with the utmost exactness and decorum, and from assembling once a fortnight, as a body of Legislators, in whom you see our assembly in miniature debating, at least many of them, extempore, on important questions of state. Some of their harrangues wou'd be heard with pleasure in any house of representatives; and the whole is conducted with, perhaps, more spirit than was ever display'd in any institution of this nature.<ref>Walker Maury to Thomas Jefferson, ca. April 29, 1784, in ''Jefferson Papers'', ''supra'' note 13, at VII, 112.</ref>
</blockquote>
Jefferson also continued to take great pride in Wythe's law program, and in late 1787 South Carolinian Ralph Izard wrote him: "I have heard you speak of the University of Williamsburgh, and of the abilities of Mr. Wyth, which make me desirous of [my eldest son Henry] being placed for two, or three years under the tuition of that Gentleman."<ref>Ralph Izard to Thomas Jefferson, November 10,1787, in ''id.'', at XII, 338-39.</ref> To this proposition, the Virginian sent his ardent approval: "I cannot but approve your idea of sending your eldest son, destined for the law, to Williamsburgh." After briefly noting the excellent instruction offered by Professors Madison and Bellini, Jefferson wrote, "But the pride of the Institution is Mr. Wythe, one of the Chancellors of the state, and professor of law in the college. He is one of-the greatest men of the age, having held without competition the first place at the bar of our general court for 25 years, and always distinguished by the most spotless virtue." As for Wythe's methods, his early student continued, "He gives lectures regularly, and holds moot courts and parliaments wherein he presides and the young men debate regularly in law, and legislation, learn the rules of parliamentary proceeding, and acquire the habit of public speaking." Jefferson then added his ultimate praise when he stated, "I know no place ''in the world, while the present professors remain'', where I would so soon place a son."<ref>Thomas Jefferson to Ralph Izard, July 17,1788, in ''id.'', at XIII, 372 (emphasis in original).</ref>
</blockquote>
==Section VII==
<blockquote>
An early twentieth-century historian has commented that "If the test of the teacher is the ability and character of the students he turns out into the world and the respect which they retain for him in the more mature years ... , Wythe must have been one of the greatest of inst:ructors."<ref>Anderson, "Teacher of Jefferson and Marshall," ''supra'' note 1, at 341.</ref> While only a handful of Wythe's students at William and Mary have been identified, a brief perusal of this small roster conclusively shows the truth of this comment.<ref>Although Wythe likely taught 200 or more men while at William and Mary, no class rosters are now available, so the vast majority of his students are currently unknown. To muddy the picture further, those who have written on Wythe have been in the habit of listing his students without giving the source from which their information comes, thus leading to the inevitable conclusion that some names may be only conjecture. Thus, below when discussing Wythe's students it will be noted when the teaching relationship has not been conclusively proved. It is hoped that the future publication of the multivolume ''Dictionary of Virginia Biography'' will clear some of the confusion and provide a much longer list of Wythe pupils.</ref>

If judged by his future impact, Wythe's most notable student at William and Mary was undoubtedly [[John Marshall]] (1755-1835), the most important jurist in American history. Marshall, who was already somewhat familiar with Blackstone, spent only three months in Williamsburg, for he was eager to start a law practice. During that time, however, he was able to compile a commonplace book of nearly 200 pages, containing over seventy subject headings, from "Abatement" to "Limitation of Actions."<ref>Cullen, "New Light," ''supra'' note 54, at 347; Swindler, "Marshall's Preparation," ''supra'' note 56, at 208. See also chapter 4 in ''The History of Legal Education in the United States''.</ref> One of Marshall's classmates [[William Short]] remembered that the future Chief Justice went "to the bar, as I well know, with little even general knowledge of law, & less particular & practical law learning." Short also recalled that "[t]he most important cause w[hic]h was argued before [Wythe's moot court] was one with four of us on each side. Marshall led one side & I the other.... The auditory at that time certainly considered my speech far superior to his."<ref>William Short to Greenbury W. Ridgely, November 10, 1817, in "To Practice Law: Aspects of the Era of Good Feelings Reflected in the Short-Ridgely Correspondence, 1816-1821," ed. George Green Shackelford, 64 ''Md. Hist. Mag.'' 342, 367 (1969). Jean Edward Smith confuses this moot court argument with a speech Marshall made during a Phi Beta Kappa meeting. Smith, ''John Marshall'', ''supra'' note 56, at 554 n.67.</ref>

Despite the brevity of Marshall's formal legal education, Short would be the first to admit that "No man has ever had in this country a more successful & more brilliant career."<ref>William Short to Greenbury W. Ridgely, November 10, 1817, in "Short-Ridgely Correspondence," ''supra'' note 97, at 368.</ref> Marshall developed a strong law practice, and later served in Congress, as Secretary of State, and, for his last thirty-four years, as Chief Justice of the United States. Although Wythe's influence was greater on some of his other students, especially Jefferson, one commentator has opined that Marshall's decision in ''Marbury v. Madison'' was likely influenced either by Wythe's teaching or the Professor's reasoning in a 1782 decision, ''[[Commonwealth v. Caton]]'', discussed below.<ref>Dill, ''Wythe, Teacher of Liberty'', ''supra'' note 3, at 62.</ref>

One of Marshall's classmates at William and Mary, [[Bushrod Washington]] (1762-1829), would be the Chief Justice's leading friend and supporter on the U.S. Supreme Court, not to mention an eminent jurist in his own right. George Washington's "favorite nephew," Bushrod graduated from William and Mary in 1778 and then returned to Williamsburg in early 1780 to attend Wythe's lectures. Unlike Marshall, Washington stayed through the fall, and after service in the army he furthered his training by apprenticing in James Wilson's Philadelphia law office. Clearly one of the new nation's best-educated attorneys, Washington maintained an impressive law practice until his 1798 appointment to the U.S. Supreme Court. Although largely forgotten today, Washington was an influential and stabilizing force on the Court for three decades, serving until his death in 1829.<ref>On Washington, including his attendance of Wythe's lectures, see "Bushrod Washington," in ''The Supreme Court Justices'', ed. Clare Cushman (2d ed. 1995), 51-55; G. Edward White, ''The Marshall Court & Cultural Change: 1815-1835'' (abr. ed. 1991), 344-54; Smith, ''John Marshall'', ''supra'' note 56, at 75, 554 n.66.</ref>

During the decades when Marshall and Washington were championing a strong national government through their work on the federal Supreme Court, a former classmate, [[Spencer Roane]] (1762-1822), was the nation's leading jurist embracing the doctrine of states' rights. Roane, who was considered "a prodigy of his generation," was one of Wythe's "most brilliant pupils." Like Washington, he continued his legal education in Philadelphia, after which he won election to the House of Delegates at age twenty-one, became a judge of the General Court six years later and was a member of the Court of Appeals at age thirty-two. Roane served on Virginia's highest court the last twenty-eight years of his life, and he quickly became the nation's most noted strict-constructionist judge. Had Jefferson, instead of Adams, been able to appoint a Chief Justice to replace Oliver Ellsworth, he would have chosen his friend and supporter Roane, rather than Marshall, and such a choice clearly would have changed this nation's history.<ref>On Roane, see ''DAB'', ''supra'' note 3, at XV, 642-43; Dill, ''Wythe, Teacher of Liberty'', ''supra'' note 3, at 51.</ref>

Another famous Virginian, the nation's fifth president, [[James Monroe]] (1758-1831), may have attended Wythe's classes in 1780, although this has yet to be conclusively proved. Monroe attended William and Mary from 1774 until he left to fight in the Revolution in 1776, and disappointed in his failure to receive a proper command, he was advised by Jefferson to study law. Thus, according to his leading biographer, Harry Ammon, "Monroe re-entered William and Mary early in 1780 and joined William Short and [John F.] Mercer in reading law under Jefferson’s direction."<ref>Harry Ammon, James Monroe: The Quest for National Identity (1971), 30.</ref> It is unknown if his association with William and Mary, which Ammon thinks "was probably nominal,"<ref>''Id.'' at 30.</ref> included the studying of law under Wythe, although it is clear that Monroe at least contemplated attending the professor's lectures—and this caused him some uncertainty about following Jefferson to the new capital in Richmond. Monroe's dilemma is clear from a March 7, 1780, letter he received from his uncle Joseph Jones:
<blockquote>
If Mr. Wythe means to pursue Mr. Blackstone's method, I should think you ought to attend him from the commencement of his course, if at all ... indeed I incline to think Mr. Wythe under the present state of our laws will be much embarrassed to deliver lectures with that perspicuity and precision which might be expected from him under a more established and settled state of them. The undertaking is arduous and the subject intricate at the best.... Whichever method he may like, or whatever plan he may lay down to govern him, I doubt not it will be executed with credit to himself and benefit to his auditors.<ref>Joseph Jones to James Monroe, March 7,1780, quoted in ''id.'', at 31.</ref>
</blockquote>
The uncle went on to say that were he Monroe, he would follow whatever suggestions Jefferson made, and, in the end, Monroe followed Jefferson to Richmond. This letter and Monroe's eventual actions, however, in no way prove whether or not he attended Wythe's lectures while still in Williamsburg. It seems intuitive that Jefferson would recommend to any aspiring attorney the advantages offered by attending Wythe's lectures. In addition, it is known that William Short was a Wythe pupil while also reading law with Jefferson, and most importantly, there is no other good reason why Monroe would re-enroll in William and Mary. Still, while every author seems to know the definitive answer to this question—of thirteen sources consulted, eleven list Monroe as a Wythe student, while two emphatically deny the association<ref>Those sources listing Monroe as a Wythe student are: Grigsby, ''Convention of 1776'', ''supra'' note 3, at 123, and ''Virginia Federal Convention'', ''supra'' note 26, at 1,75 n.90; Shepard, "George Wythe," in Bryson, ''Legal Education in Virginia'', ''supra'' note 3, at 754; Brown, ''American Aristides'', ''supra'' note 3, at 207; Tyler, "George Wythe," ''supra'' note 3, at 68; Anderson, "Teacher of Jefferson and Marshall," ''supra'' note 1, at 327; Devitt, "William and Mary," ''supra'' note 3, at 429; Carrington, "University Legal Education," ''supra'' note 3, at 538; Kirtland, ''George Wythe'', ''supra'' note 3, at 116; and Hemphill, "Wythe, America's First Law Professor," ''supra'' note 3, at 2. In addition, William and Mary's law school, now known as the Marshall-Wythe School of Law, claims Monroe as an alumnus. Those denying the relationship are Clarkin, ''Serene Patriot'', ''supra'' note 3, at 144; and Dill, ''Wythe, Teacher of Liberty'', ''supra'' note 3, at 43.</ref>—the fact remains that there is no conclusive proof one way or the other.

While Monroe's attendance is uncertain, another student who definitely did attend Wythe's lectures in 1780, after facing the same sort of dilemma, was [[John Brown]] (1757-1837); and his letters to an uncle give us our best picture of Wythe's law class that year. Brown, the son of a prominent Presbyterian minister in the Shenandoah Valley, attended Princeton until it was captured by the British, and he then travelled south to William and Mary to continue his collegiate education. While in Williamsburg, Brown determined to study law, and in the fall of 1779, Virginia's Attorney General Edmund Randolph, upon the recommendation of college president Madison, took Brown as an apprentice, "without a fee, provided I would assist him in writing."<ref>John Brown to William Preston, October 20, 1779, in "Glimpses of Old College Life," supra note 64, at 21.</ref>

Several months after Brown began this tutelage, the Professorship of Law and Police was established, and on December 9, 1779, the young apprentice wrote his uncle:
<blockquote>
William & Mary has undergone a very considerable Revolution; The Visitors met on the 4th Instant & form'd it into a University; annul'd the old Statutes, abolish'd the Grammar School[;] continued Mr Madison President, &Professor of Mathematics[;] Appointed Mr Wyth Professor of Law, Dr McClurg of Physick[,] Mr Andrews of Moral Philosophy, & Monsr Belini of modern Languages. Each of these Professors have an Annuity of eight Hogsheads of Tobacco. The Students have to ... pay a Hd of Tobacco to each Professor, they shall attend.
</blockquote>
At this time, Brown hinted that he would like to attend Wythe's lectures, but he did not know how to quit his apprenticeship with Randolph. With the removal of the government to Richmond, Randolph, as Attorney General, would necessarily have to move to the new capital, and Brown noted that "if I continue with him I shall have to move there also." This he did not want to do, yet he realized that because Randolph was "a Gentl[ema]n of great delicacy perhaps it might be improper to q[u]it him & attend Mr Wyth's Lectures."<ref>John Brown to William Preston, December 9, 1779, in ''id.'', at 22-23.</ref>

For many weeks Brown remained unsure of his plans, until Randolph, in late January 1780, recommended that he stay in Williamsburg and attend Wythe's lectures, for the Attorney General saw this choice "as the best opportunity ... for Study [and] Instruction [in law] that this Country affords."<ref>John Brown to William Preston, January 26 and March 7,1780, in ''id.'', at 75,77. </ref> Brown began to study under Wythe almost immediately, and in the middle of February he reported to his uncle: "I apply closely to the Study of Law and find it to be a more difficult Science than I expected, though I hope with Mr Wythes assistance to make some proficiency in it; those who finish this Study in a few months either have strong natural parts or else they know little about it."<ref>John Brown to William Preston, February 15, 1780, in ''id.'', at 76. At this time Brown also reported that he had had to give up the study of French, because of the expense of attending Wythe's lectures.</ref>

Brown continued to study under Wythe for most of the year, and in July he reported that "the Advantages of my situation, ... of late have been greatly augmented; for Mr Wythe[,] ever attentive to the improvement of his Pupils, founded two Institutions for that purpose," the Moot Court and the Moot Legislature. As quoted above, Brown went on to describe both institutions, and he then noted, "I take an active part in both these Institutions & hope thereby to rub off that natural Bashfulness which at present is extremely prejudicial to me."<ref>John Brown to William Preston, July 6,1780, in id., at 80.</ref>

Wythe's institutions must have worked their magic, for after his 1782 admission to the bar Brown moved to what is now Kentucky and quickly became one of that region's most noted politicians. He was elected to the Virginia Senate in 1784, and three years later he began service in the Continental Congress. After the adoption of the Constitution, Brown served in the first two sessions of Congress as a Representative from Virginia, and in 1792 when Kentucky received her statehood, he was elected one of the Commonwealth's first United States Senators, serving until 1805.<ref>"John Brown," ''Biographical Directory of the American Congress: 1774-1949'' (1950),900; "John Brown," ''DAB'', ''supra'' note 3, at III, 130-31.</ref>

Brown was not the only person in his family to study law under Wythe, for evidence suggests that a brother and two first cousins did likewise, all of whom also became known for their public service. The brother [[James Brown]] (1766-1835), eventually settled in New Orleans, and twice represented Louisiana in the U.S. Senate (1813-1817, 1819-1823), as well as serving as Minister to France (1823-1829).<ref>On Brown, see "James Brown," ''DAB'', ''supra'' note 3, at III, 126. Carrington, "University Legal Education," ''supra'' note 3, at 558, states that Brown was a Wythe pupil, while Hemphill, "Wythe, America's First Law Professor," ''supra'' note 3, at 48, mentions it as a possibility.</ref>

As for the cousins, the most famous was [[John Breckinridge]] (1760-1806), who at age nineteen while a student at William and Mary was elected to the Virginia legislature by the citizens of Botetourt county. In 1792, Breckinridge was elected to Congress from the district surrounding Charlottesville, but shortly thereafter he resigned the seat and settled in Kentucky. There, the young attorney flourished, serving as state Attorney General and speaker of the state House. In 1801 he was elected to the U.S. Senate, serving alongside his cousin John Brown, and four years later he was appointed United States Attorney General by his friend Thomas Jefferson. Breckinridge was serving in this position when he died prematurely at the age of forty-six.<ref>On Breckinridge, see "John Breckinridge," ''DAB'', ''supra'' note 3, at III, 6. Among the sources listing Breckinridge as a Wythe pupil are Clarkin, ''Serene Patriot'', ''supra'' note 3, at 144; Devitt, "William and Mary," ''supra'' note 3, at 429; Carrington, "University Legal Education," ''supra'' note 3, at 538; Swindler, "America's First Law Schools," ''supra'' note I, at 12; and Kirtland, ''George Wythe'', supra note 3, at 116. Dill, ''Wythe, Teacher of Liberty'', ''supra'' note 3, at 51, notes that Breckinridge attended William and Mary in 1780 and states that he "may" have attended Wythe's lectures.</ref> John's younger brother, [[James Breckenridge]] (1763-1833), who served in thirteen sessions of the Virginia legislature in addition to four terms in Congress (1809-1817), has also been listed as a Wythe pupil.<ref>On Breckenridge, who, unlike his brother, maintained the traditional spelling of his last name, see "James Breckenridge," ''DAB'', ''supra'' note 3, at III, 5. This source states that he attended the "academic and law courses in the College of William and Mary, graduating in 1785," ''id.'', and other sources listing Breckenridge as a Wythe pupil are Brown, ''American Aristides'', ''supra'' note 3, at 228; Tyler, "George Wythe," ''supra'' note 3, at 72; and Hemphill, "Wythe, America's First Law Professor," ''supra'' note 3, at 2.</ref>

The Kentuckian who in 1805 replaced John Brown in the U.S. Senate, [[Buckner Thruston]] (1764--1845), was also a Wythe student at William and Mary. Thruston resembled his legal mentor, for he was "a scholarly man" who did not care for "the rough-and-tumble of Washington politics." Accordingly, he resigned his Senate seat in 1809 to become judge of the U.S. Circuit Court for the District of Columbia, a position in which he served for thirty-six years until his death.<ref>On Thruston, see Robert V. Remini, ''Henry Clay: Statesman for the Union'' (1991), 37, 47, 58; ''Biographical Directory of the American Congress'', ''supra'' note 111, at 1919. Sources listing Thruston as a Wythe pupil include Hemphill, 'Wythe, America's First Law Professor," ''supra'' note 3, at 2; Tyler, "George Wythe," ''supra'' note 3, at 72; Brown, ''American Aristides'', ''supra'' note 3, at 228. It is interesting to note that in the U.S. Senate, Thruston replaced a Wythe pupil (John Brown), for part of his tenure his colleague from Kentucky was also a Wythe pupil (Henry Clay), and he was succeeded by a Wythe pupil (again, Clay).</ref>

While many Wythe students moved west, especially to Kentucky, a noted politician who studied under Wythe at William and Mary and then stayed in Virginia was [[William Branch Giles]] (1762-1830). Giles had earlier graduated from Princeton, and during his career he represented Virginia in the U.S. House (1790-1798, 1801-1803) and the U.S. Senate (1804-1815), as well as serving as the state's Governor (1827-1830).<ref>"William Branch Giles," ''DAB'', ''supra'' note 3, at VII, 283-84. This sketch, written by Dumas Malone, states that Giles studied law under Wythe, as does Clarkin, ''Serene Patriot'', ''supra'' note 3, at vii, 155; and Brown, ''American Aristides'', ''supra'' note 3, at 213.</ref>

A Wythe student who possibly could have achieved even more than Giles was [[Samuel Hardy]] (c. 1758-1785). Like John Breckinridge, Hardy was elected to the General Assembly while still a student in Williamsburg, and in 1783, when about twenty-five, he won election to the Continental Congress. There, Hardy impressed all with whom he came into contact, but unfortunately he died in Philadelphia two years later; despite failing to reach his thirtieth birthday, the General Assembly named a county in Hardy's honor.<ref>''Encyclopedia of Virginia Biography'', ed. Lyon G. Tyler (1915), II, 10-11 (hereinafter referred to as ''EVB''); see also Clarkin, ''Serene Patriot'', supra note 3, at 159.</ref>

As detailed below, Wythe tutored many students in the classics, and among those who also studied law with the great teacher were [[William Munford]] and Jefferson’s nephew [[Peter Carr]].<ref>See below for descriptions of these students' educations under Wythe.</ref> Another Wythe law student with a close association to Jefferson was [[William Short]] (1758-1849), whom the third President considered his "adopted son."<ref>On Short, see George Green Shackelford, "William Short, Jefferson's Adopted Son, 1758-1849" (unpublished doctoral dissertation, University of Virginia, 1955); "William Short," ''DAB'', ''supra'' note 3, at XVII, 128-29.</ref>

Short, who attended Wythe's lectures in 1780 and then studied under Jefferson, recalled: "In point of general knowledge I am sure I may say without vanity that I [was] prepared more than most of the Lawyers who then were practicing at the bar. I had read and made copius notes on Coke [on] Lyttleton. I had done so with Blackstone, of course." In addition, "I had plead causes ... in a simulated court, where our professor presided, & I was considered able and eloquent, &c."<ref>William Short to Greenbury W. Ridgely, December 11, 1816, in "Short-Ridgely Correspondence," ''supra'' note 97, at 349.</ref> Thus, Short "went to the bar ... full of all the general principles & erudite knowledge of the sources of law. The law of nature, the law of the land, viz. England, for all our books were of English law; such things had occupied me.... I was full of myself and of my own superiority."<ref>William Short to Greenbury W. Ridgely, November 10, 1817, in ''id.'', at 368.</ref>

Short, however, soon realized that his "mere theoretical study" under Wythe and Jefferson would, by itself, be "deficient" for a successful law practice, and he later told a nephew that "collegiate courses under celebrated professors are more the luxury of [legal] education than the solid utility of the thing. The success of a lawyer must essentially & intrinsically depend on the course he pursues after he has entered the field of practice. It is then that the real education begins."<ref>William Short to Greenbury W. Ridgely, January 30 and November 10, 1817, in ''id.'', at 352,366. Short gave John Marshall as an example of one whose formal legal education was scanty, yet who developed an impressive practice.</ref> Short specifically mentioned two areas in which Wythe's instructions did not prepare him for a life at the Virginia bar; Short was not sufficiently acquainted with the acts of the Virginia legislature, and he was not thoroughly grounded in the forms of pleading.

Less than a month after leaving Wythe's classroom, Short was hired by a visiting South Carolinian who was accused of murdering one of his slaves, and the young attorney "was immediately for showing all of my law learning to the court," and began "preparing for a most elaborate & scientific speech." For that purpose, he "sent to a gentleman of the bar in Williamsburgh to lend me certain reports of criminal cases. From his answer I perceived that these reports w[oul]d not bear on the case in question & that it w[oul]d depend entirely on the act of the Virginia Assembly." While attending Wythe's lectures, Short "had never read or condescended to think of the acts of the assembly of Virginia," and the "information as to [the dispositiveness of] the act of the Assembly operated on me as the moves of his legs does on the Peacock when he is strutting. It showed me my own ignorance & real unfitness for the defence of my client."<ref>William Short to Greenbury W. Ridgely, November 10, 1817, in ''id.'', at 368. Short went on to note that "such was the aversion of a bench of white men to condemn one of their own color for killing a black, that I found no difficulty & he was acquitted." ''Id.''</ref>

Shortly thereafter, Short, who intended to confine his practice to the highest courts in the state, had the only occasion in his career to appear before a county court, and in one particular he was quite unprepared. He later explained: "Scientific students [of the law] are apt to despise the mere technical & practical part of the business—that is the process or forms of pleading.... I had read the best reporters, but I was miserably ignorant of the mere technical forms. These were known to the clerks of court, & to every pettifogger, & I despised them." Thus, when Short, in the process of defending his county court client, was asked what plea he was entering, he was at a complete loss: "Had I been asked a most obstruse metaphysical question I w[oul]d not have been more completely put at a non plus . ... Now this plea any underclerk w[oul]d have known, & I who had followed courses, &c, &c, did not know. I had never the less read the books of practice & thought I understood the subject." Thus, Short's "experience convinced me that this technical & practical part [of the law] is to be learned only in an attorney's office. My advice therefore always would be to everyone to pass one year in this way previous to the commencement of the practice."<ref>William Short to Greenbury W. Ridgely, December 11, 1816, and November 10, 1817, in ''id.'', at 349-50,369.</ref>

It is interesting to note, however, that in Short's career he likely benefitted a great deal more from Wythe's "theoretical" learning than he would have from the knowledge gained by apprenticing in an attorney’s office. Shortly after beginning his practice, Short became Jefferson's private secretary in Paris, and he later was a noted diplomat himself.

Jefferson was not the only important revolutionary leader to send those close to him to study law under Wythe, for another was Richard Henry Lee. In April 1780, while Lee's son [[Ludwell Lee]] (1760-1836) was in Europe attending his diplomat uncle Arthur Lee, Richard Henry wrote his brother: "Our worthy & learned friend, Geo. Wythe esquire is now Professor of Law in Wm & Mary College—his lectures are greatly admired; and it deserves your attention whether your nephew Ludwell would not be greatly benefitted by attending his lectures whilst he is reading the laws of Virginia ... his father thinks so...."<ref>Richard Henry Lee to Arthur Lee, April 24, 1780, in ''Lee Letters'', ''supra'' note 89, at II, 177.</ref> Arthur and Ludwell were scheduled to return to America, and four months after his first letter Richard Henry wrote Arthur to the same effect: "I think [Ludwell] may benefit himself by repairing to Williamsburg and finishing his law studies under Mr. Wythe, who is now most worthily employed in the character of Law professor at Willi[a]m & Mary College." Lee then added that Wythe "discharges the duty of [his professorship] with wonderful ability both as to the theory and practise. The sooner therefore that Ludwell gets under his tuition the better!"<ref>Richard Henry Lee to Arthur Lee, August 31, 1780, in ''id.'', at II, 199.</ref> Following his father's advice, Ludwell Lee began his studies at Williamsburg soon thereafter, and after the Revolution he returned to Williamsburg to complete his legal education.<ref>See Richard Henry Lee to George Wythe, February 28, 1783, in ''id.'', at II, 279.</ref>

One of Lee's classmates during his later sojourn at the college was his first cousin, [[Thomas Lee Shippen]] (1765-1798), of Philadelphia. Shippen, the son of Dr. William Shippen, Professor of Anatomy at the University of Pennsylvania, studied with Wythe from 1784 to 1786, and he spent an additional two years at the Inner Temple. Despite displaying great talent and having arguably the best legal education of anyone in America, Shippen never aimed for, or achieved, greatness.<ref>Paul C. Nagel, ''The Lees of Virginia: Seven Generations of an American Family'' (1990), 124, 145-52.</ref>

Shippen was not the only Wythe student to come from out of state. Noted South Carolina patriot Ralph Izard, for instance, sent his eldest son [[Henry Izard|Henry]] (b.1771) to be educated by Wythe,<ref>See Thomas Jefferson to Ralph Izard, July 17, 1788, in ''Jefferson Papers'', ''supra'' note 13, at XII, 372. Brown misidentifies Izard's son by stating that it was the younger George Izard. ''American Aristides'', ''supra'' note 3, at 213.</ref> and a North Carolinian who ventured north was [[Kemp Plummer]] (1769-1826), later a member of the "Warren Junto" which controlled North Carolina politics for several decades.<ref>Daniel M. McFarland, "Kemp Plummer," in ''Dictionary of North Carolina Biography'', ed. William S. Powell (6 vols., 1979-1996), V, 104.</ref> The great majority of Wythe's students, however, appear to have been Virginians.

Another son of the Virginia aristocracy who attended Wythe's lectures was [[Richard Randolph]] (1770¬1796), the eldest brother of John Randolph of Roanoke and step-son of Wythe's pupil and successor St. George Tucker. Besides his familial connections, Randolph is most famous for being falsely accused of adultery and infanticide. Through the efforts of Patrick Henry and John Marshall, Randolph was acquitted on murder charges, yet he died shortly thereafter at the age of twenty-six. In his will, Randolph named as his executors his stepfather, two brothers, and "the most virtuous and incorruptible of mankind, and next to my father-in-law my greatest benefactor, George Wythe, Chancellor of Virginia, the brightest ornament of human nature."<ref>Clarkin, ''Serene Patriot'', ''supra'' note 3, at 158, 198; Brown, ''American Aristides'', ''supra'' note 3, at 214. On Randolph's trial, see, among other sources, Smith, ''John Marshall'', ''supra'' note 56, at 148-53.</ref>

Another noted father whose sons may have attended Wythe's lectures was Robert Carter Nicholas, Wythe's colleague on the High Court of Chancery. Although their attendance is questionable, several sources list Wythe's students as including [[George Nicholas]] (c. 1754-1799), a noted Virginia attorney,<ref>On Nicholas, see "George Nicholas," ''DAB'', ''supra'' note 3, at XIII, 482-83. At least eight sources list Nicholas as a Wythe pupil, including Grigsby, ''Convention of 1776'', ''supra'' note 3, at 123, and ''Virginia Federal Convention'', ''supra'' note 26, at I, 75 n.90; Carrington, "University Legal Education," ''supra'' note 3, at 557; Shepard, "George Wythe," in Bryson, ''Legal Education in Virginia'', ''supra'' note 3, at 754; Hemphill, "Wythe, America's First Law Professor," ''supra'' note 3, at 2; Brown, ''American Aristides'', ''supra'' note 3, at 213,228; Tyler, "George Wythe," ''supra'' note 3, at 72; and Shewmake, ''Honorable George Wythe'', ''supra'' note 3, at 17. A.T. Dill, however, disputes this teacher-pupil relationship by stating that Nicholas, as well as his brother Wilson Cary Nicholas, "undoubtedly read law under their father." Dill, ''Wythe Teacher of Liberty'', ''supra'' note 3, at 99 n.319. This also appears to be the conclusion of Victor Dennis Golladay, who in his dissertation on the Nicholas family wrote that George "probably could not have found a better lawyer to guide his studies than his father." Golladay, "The Nicholas Family of Virginia: 1722-1820" (unpublished doctoral dissertation, University of Virginia, 1973), 220. Golladay also shows that George Nicholas received his law license in September 1778, more than a year before Wythe began his lectures, yet realizing that various sources, especially Grigsby, assert the Wythe teaching, he also adds that Nicholas "perhaps" did additional reading under Wythe. ''Id.'' at 220, 228.</ref> and his younger brother [[Wilson Cary Nicholas]] (1761-1820), a Virginia Governor who also represented the state in both houses of the federal legislature.<ref>On Nicholas, see "Wilson Cary Nicholas," ''DAB'', ''supra'' note 3, at XIII, 486-87. Sources listing Nicholas as a Wythe pupil include Grigsby, ''Virginia Federal Convention'', ''supra'' note 26, at I, 75 n.90; Clarkin, ''Serene Patriot'', ''supra'' note 3, at 184; Blackburn, ''Wythe of Williamsburg'', ''supra'' note 3, at 108. Again, A.T. Dill suggests that like his brother George, Wilson Cary Nicholas also studied under his father. Dill, ''Wythe, Teacher of Liberty'', ''supra'' note 3, at 99 n.319. As for Golladay, all he says is that "Wilson allegedly had legal training." Golladay, ''Nicholas Family,'' ''supra'' note 132, at 233 n.9.</ref>

Other men alleged to have been Wythe pupils include: Archibald Stuart (1757-1832), a legislative leader who later served on the General Court for three decades;<ref>On Stuart, see "Archibald Stuart," ''DAB'', ''supra'' note 3, at XVIII, 161-62. Sources listing Stuart as a Wythe pupil include Hemphill, "Wythe, America's First Law Professor," ''supra'' note 3, at 2; Tyler, "George Wythe," ''supra'' note 3, at 72; Brown, ''American Aristides'', ''supra'' note 3, at 228. Stuart's son, Congressman Alexander H.H. Stuart, wrote that his father studied at William and Mary from 1777 to 1781, and that after the Revolution he spent an-additional two years reading law with Thomas Jefferson. Grigsby, ''Virginia Federal Convention'', ''supra'' note 26, at II, 386.</ref> noted Richmond attorney John Wickham (1763-1839);<ref>On Wickham, see "John Wickham," ''DAB'', ''supra'' note 3, at XX, 181-82. Sources listing Wickham as a Wythe pupil include Grigsby, ''Convention of 1776'', ''supra'' note 3, at 123; Hemphill, "Wythe, America's First Law Professor," ''supra'' note 3, at 2; Tyler, "George Wythe," ''supra'' note 3, at 72; Shepard, "George Wythe," in Bryson, ''Legal Education in Virginia'', ''supra'' note 3, at 754; and Brown, ''American Aristides'', ''supra'' note 3, at 213, 228. Although it does not in any way preclude Wickham's attending Wythe's classes-for many of Wythe's William and Mary students, such as Washington, Roane, and Short, also apprenticed with a private attorney-it is known the Wickham also read law with Henry Tazewell. See Hugh Blair Grigsby, ''Discourse on the Life and Character of the Hon. Littleton Waller Tazewell'' (1860), 11; Norma Lois Patterson, ''Littleton Waller Tazewell'' (1983), 7.</ref> William Cabell, Jr.;<ref>Clarkin, ''Serene Patriot'', ''supra'' note 3, at 144, states that William Cabell, Jr., Treasurer of Phi Beta Kappa, studied under Wythe in 1780, and this source also states that William H. Cabell (1772-1853), a three-term governor of Virginia (1805-1808) and member of the Virginia Court of Appeals for forty years (1811-1851), was also a Wythe pupil. ''Id.'' at 209. ''The Dictionary of American Biography'' states that William H. Cabell "attended Hampden Sidney College, 1785-89, and then entered the College of William and Mary, from which he received his law degree in 1793," ''DAB'', ''supra'' note 3, at III, 390, while another source states that he studied law under St. George Tucker at William and Mary in 1790. ''EVE'', ''supra'' note 117, at II, 47.</ref> John Minor III (1761-1816), a Fredericksburg attorney and member of the Virginia General Assembly;<ref>Clarkin, ''Serene Patriot'', ''supra'' note 3, at 157.</ref> Jacob Walker, a distant relative of Wythe's whom the teacher thought showed "great promise";<ref>Brown, ''American Aristides'', ''supra'' note 3, at 213-14.</ref> and Daniel Call (c. 1765-1840), John Marshall's brother-in-law and a long-time Reporter of the Virginia Court of Appeals.<ref>''EVB'', ''supra'' note 117, at II, 178.</ref>

One person has estimated that Wythe instructed fewer than 200 pupils in the law,<ref>Carrington, "University Legal Education," ''supra'' note 3, at 537.</ref> yet it is amazing what these students accomplished in later life. Students taught by George Wythe occupied almost every office this young nation had to offer, including President, Vice President, Secretary of State, Attorney General, U.S. Senator, Speaker of the U.S. House, Chief Justice, Associate Justice, federal District Judge, foreign Minister, Governor of Virginia, President of the Virginia Court of Appeals, member of the Virginia, Kentucky, and North Carolina legislatures, President of William and Mary, Professor of Law at both William and Mary and Transylvania, and Episcopal Bishop of Virginia.<ref>Among the positions occupied by known Wythe students: President (Jefferson), Vice President (Jefferson), Secretary of State (Jefferson, Marshall, and Clay), Attorney General (Breckinridge), U.S. Senator (John Brown, James Brown, Breckinridge, Thruston, Giles, Eppes, Clay, Tazewell), Speaker of the U.S. House (Clay, with many other students serving in the House), Chief Justice (Marshall, with Washington serving as an Associate Justice), federal District Judge (Tucker, Thruston), foreign (or treaty) Minister (Jefferson, Short, Marshall, Clay), Governor of Virginia (Jefferson, Giles, Tazewell), and President of the Virginia Court of Appeals (Roane, with Tucker, Coalter, and others serving on the court, and Munford acting as its Reporter; it has been said that "During the existence of the William and Mary law course [1779-1861] twenty-five out of forty-three judges of the Virginia Court of Appeals received their legal education there." Devitt, "William and Mary," ''supra'' note 3, at 426, quoting a Robert M. Hughes 1920 letter to the New York Times). Wythe's pupil St. George Tucker was his replacement as Professor of Law and Police at William and Mary, and it has been stated that the first three law professors at Transylvania University (George Nicholas, James Brown, and Henry Clay) were all Wythe students. See Carrington, "University Legal Education," ''supra'' note 3, at 537. Of course only about ten percent of Wythe's students are currently known, and the foregoing lists would be even more impressive if one included the accomplishments of the supposed students whose attendance cannot be readily proved (Monroe and Wilson Cary Nicholas being two prime examples).</ref> While some of the men who occupied such stations were taught by Wythe in a private capacity, it is also true that "no law school in America has since sent from its class rooms into public life, in the same length of time, if at all, an equal number of men of such amazing ability."<ref>Shewmake, ''Honorable George Wythe'', ''supra'' note 3, at 16.</ref>

Wythe felt exceptionally close to "his boys," and it has been said that "[a]ll of his students entertained for him a veneration that was almost a religion."<ref>Sallie E. Marshall Hardy, "Some Virginia Lawyers of the Past and Present," 10 ''The Green Bag'' 12,18 (1898), quoting an unidentified source.</ref> There is little doubt that Paul Carrington is correct when he states that "Wythe's teaching career may be assessed ... as consequential beyond comparison to that of any successor in American university law teaching."<ref>Carrington, "University Legal Education," ''supra'' note 3, at 538.</ref>
</blockquote>
==Section VIII==
<blockquote>
It has been said that one special advantage Wythe had as an instructor was that he "remained an active participant in both judicial and governmental activities and, as such, could bring much more vitality to his classroom."<ref>Brown, ''American Aristides'', ''supra'' note 3, at 216-17.</ref> During his tenure at William and Mary, Wythe travelled to Richmond during the months of April and September to hear cases on the High Court of Chancery as well as the Court of Appeals.

Wythe’s most notable case, ''Commonwealth v. Caton'', occurred on the latter court in 1782, when he, in ''dicta'', became one of the first American jurists to espouse the doctrine of judicial review, stating:
<blockquote>
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."<ref>See Dill, ''Wythe, Teacher of Liberty'', ''supra'' note 3, at 60-62; Tyler, "George Wythe," ''supra'' note 3, at 78-79.</ref>
</blockquote>
In another important case, Wythe defied public opinion when he became the first judge after the Revolution to hold that Virginians had to pay the previous debts they owed to British merchants.<ref>Boyd, "Murder of Wythe," ''supra'' note 22, at 5.</ref>

On several occasions in the 1780s Wythe was also pressed into other forms of government service. Having done nothing to enact the laws earlier drafted by the revisers, in 1783 the Virginia General Assembly decided that the state needed a new collection of its laws, and for this task it appointed the Commonwealth's three Chancellors, Wythe, Pendleton, and John Blair II. These men completed the work the following year, and ever since it has been known, incorrectly, as the "Chancellors' Revisal."<ref>Dill, ''Wythe, Teacher of Liberty'', ''supra'' note 3, at 57-58.</ref>

In 1785, it was the national government that sought Wythe's service, for the Continental Congress named him to a jury of national leaders, including Jefferson, Monroe, John Rutledge, and William Patterson, to negotiate a settlement between New York and Massachusetts over the ownership of a vast tract of land in what is now western New York State. Not finding himself able to leave Williamsburg, Wythe refused this appointment.<ref>Clarkin, ''Serene Patriot'', ''supra'' note 3, at 162.</ref>

The one appointment he was unable to refuse, however, was to the Constitutional Convention in 1787. One authority has stated that "Wythe's eminence as a judge and his long legal and parliamentary experience made him an almost inevitable choice as a delegate to the Philadelphia convention of 1787."<ref>Dill, ''Wythe, Teacher of Liberty'', ''supra'' note 3, at 63.</ref> In October 1786, the Virginia General Assembly chose seven delegates for the Philadelphia convention: Wythe, George Washington, James Madison, George Mason, John Blair, Edmund Randolph, and Patrick Henry—who declined to serve and was replaced by Wythe's former colleague on the William and Mary faculty, Dr. James McClurg.

In Philadelphia, Wythe's greatest service was as chairman of the rules committee,<ref>''Id.'' at 64.</ref> and as in the Continental Congress, he was highly respected for his knowledge of both the law and classical literature. Delegate William Lee Pierce wrote that "Mr. Wythe is the famous Professor of Law at the University of William and Mary. He is confessedly one of the most learned legal characters of the present age." Pierce continued his description by noting that the Virginian had "acquired a compleat knowledge of the dead languages and all the sciences" and "[n]o man, it is said, understands the history of government better than Mr. Wythe." About the only thing Pierce could write against Wythe was that "from his too favorable opinion of men, he is no great politician."<ref>Quoted in Brown, ''American Aristides'', ''supra'' note 3, at 217; Dill, ''Wythe, Teacher of Liberty'', ''supra'' note 3, at 64-65.</ref>

Wythe had been extremely reluctant to leave Virginia because of the health of his wife, who was gravely ill back in Williamsburg, and after only three weeks in Philadelphia he sought and was given permission to return home. Wythe found his wife's situation so serious that he formally resigned from the Convention on June 16, 1787, and two months later, on August 18, Elizabeth Taliaferro Wythe succumbed to her illness.<ref>Dill, ''Wythe, Teacher of Liberty'', ''supra'' note 3, at 65.</ref>

Wythe's service in establishing a national constitution was not complete, however, for the following year he was elected to Virginia's ratifying convention. Wythe's selection by his fellow citizens came as a complete surprise, and a student remembered that upon being informed, "tears flowed down [Wythe's] cheeks in copious streams."<ref>Littleton Waller Tazewell, quoted in ''id.'', at 67.</ref>

The convention was held in Richmond during June 1788, and Wythe was called to the chair when the delegates went into the committee of the whole; the site of Wythe presiding over a legislative assembly must have seemed quite familiar to the not insubstantial number of delegates who had been his students at William and Mary. The "Father of the Constitution," James Madison, later listed Wythe, Pendleton, Blair, Innes, and Marshall as the five most important delegates, and Wythe was chosen to present the resolution calling for ratification.<ref>Clarkin, ''Serene Patriot'', ''supra'' note 3, at 180; Dill, ''Wythe, Teacher of Liberty'', ''supra'' note 3, at 67-69.</ref>

The following year, in recognition of his over-forty years of service to the Commonwealth, the Virginia General Assembly, on December 1, 1789, named a county in Wythe's honor. It is also interesting to note that at least five Virginia counties (all of them now in West Virginia) were named for Wythe's students: Jefferson, Hardy, Marshall, Roane, and Clay.<ref>See Clarkin, ''Serene Patriot'', ''supra'' note 3, at 184. In addition, three other counties were named for statesmen who have been listed as possible Wythe students: Edmund Randolph, James Monroe, and Wilson Cary Nicholas. Kentucky named a county in honor of Wythe student John Breckinridge. Clarkin states that a West Virginia county honors Littleton Waller Tazewell, but this county is actually in Virginia, and it was named for Tazewell's father Henry; a county in Illinois, however, is named for the younger Tazewell.</ref>

As if his judicial and teaching duties were not enough to keep him busy, during the 1780s Wythe also began instructing young men in the classics. As noted above, William and Mary's grammar school had been closed in 1779, and at that time the college also stopped teaching the ancient languages. At some point an independent grammar school was formed in Williamsburg, yet its most notable master, Walker Maury, quit the school in 1786 when he moved to Norfolk.<ref>Clarkin, ''Serene Patriot'', ''supra'' note 3, at 164.</ref> Thus, Wythe likely saw it as a public duty to instruct intelligent youth in the classics, and it is noteworthy that he would not accept any payment for this service.<ref>''Id.'' at 164; Kirtland, ''George Wythe'', ''supra'' note 3, at 121-22.</ref> Of course in addition to his great sense of public duty, Wythe probably began instructing young men in the classics simply because teaching gave him great enjoyment. The Reverend Maury once told Jefferson that "Mr. Wythe ... seems to enjoy himself no where, so much as with his pupils."<ref>Quoted in Dill, ''Wythe, Teacher of Liberty'', ''supra'' note 3, at 56.</ref>

During this period, Wythe's first classics pupil was Littleton Waller Tazewell (1774-1860), the precocious grandson of one of Wythe's best friends. Tazewell, who at age twelve was the youngest boy Wythe ever taught,<ref>Brown, ''American Aristides'', ''supra'' note 3, at 220.</ref> began studying Greek, Latin, Arithmetic, and other subjects under Wythe in 1786. Tazewell later recalled:
<blockquote>
I attended him every morning very early, and always found him waiting for me in his study by sunrise. When I entered the room, he immediately took from his well-stored library some Greek book, to which any accidental circumstance first directed his attention. This was opened at random, and I was bid to recite the first passage that caught his eye. Although utterly unprepared for such a task, I was never permitted to have the assistance of a Lexicon to a grammar but whenever I was at a loss, he gave me the meaning of the word or structure of the sentence which had puzzled me. . . . Whenever in the course of our reading any reference was made to the ancient manners, customs, laws, superstitions or history of the Greeks, he asked me to explain the allusion, and when I failed to do so satisfactorily (as was often the case) he immediately gave full clear and complete account of the subject to which reference was so made. Having done so, I was bidden to remind him of it the next day, in order that we might then learn from some better source, whether his explanation was correct or not; and the difficulties I met with on one day, generally produced the subject of the lesson of the next.<ref>Quoted in Swindler, "America's First Law Schools," ''supra'' note 1, at 10-11.</ref>
</blockquote>
In this way, Wythe tutored Tazewell in Greek from sunrise until breakfast, and the same method was employed from noon until two p.m. to teach the young pupil Latin. From four in the afternoon until dark, Wythe and Tazewell studied mathematics using French texts, and in the evenings Wythe had his young pupil read to him from both major works of English literature and current periodicals.<ref>See Dill, ''Wythe, Teacher of Liberty'', ''supra'' note 3, at 55-56; Brown, ''American Aristides'', ''supra'' note 3, at 220-21; Clarkin, ''Serene Patriot'', ''supra'' note 3, at 164-66.</ref>

Tazewell studied under Wythe for approximately five years, during most of which time he lived in the Wythe home. The young prodigy later compiled an impressive record at William and Mary and then read law under John Wickham. Becoming one of the nation's foremost attorney-statesmen, Tazewell served in both houses of the federal legislature (House, 1800-1801; Senate, 1824-1832) and as Governor of Virginia (1834-1836). He was likely the last-surviving student of George Wythe when he died in 1860 at the age of eighty-six.<ref>On Tazewell, see Grigsby, ''Discourse on Tazewell'', ''supra'' note 135; Peterson, ''Littleton Waller Tazewell'', ''supra'' note 135; White, ''The Marshall Court'', ''supra'' note 100, at 214-29; "Littleton Waller Tazewell," ''DAB'', ''supra'' note 3, at XVIII, 355-57.</ref>

Another Wythe pupil for most of this period was [[Peter Carr]] (1770-1815), Thomas Jefferson's nephew. Jefferson sent his kinsman to be educated in Williamsburg, and after attending Maury's grammar school Carr enrolled in William and Mary in the fall of 1786, taking classes in natural and moral philosophy, mathematics, and modern languages (French and Spanish). Carr, however, also "enjoy[ed] the advantage of Mr. Wythe's valuable patronage and instructions," for at this time the law professor began privately tutoring Jefferson's nephew in Latin and Greek, with Carr reading, among other authors, Herodotus, Sophocles, Cicero, Horace, and Lucretius.<ref>See James Madison to Thomas Jefferson, November 25, 1786, ''Jefferson Papers'', ''supra'' note 13, at X, 549; George Wythe to Thomas Jefferson, December 13, 1786, in ''id.'', at X, 592-93; Peter Carr to Thomas Jefferson, December 30,1786, in ''id.'', at X, 648. Wythe was following a plan designed by Jefferson for Carr's education.</ref> Jefferson was highly pleased that his nephew was studying under Wythe, telling the young man, "I am sure you will find this to have been one of the most fortunate events of your life, as I have ever been sensible it was of mine."<ref>Thomas Jefferson to Peter Carr, August 10,1787, in ''id.'', at XII, 14. In this letter, Jefferson told his nephew to begin the study of sciences under Wythe, to study Spanish instead of Italian, and not to study moral philosophy. He also laid out a long list of readings for Carr, although for law and politics he told his nephew to study whatever works Wythe suggested. ''Id.'' at XII, 14-19.</ref>

In early 1788 Carr also began the study of law under Wythe. As for his routine at this time, he wrote his uncle, then in Paris, that he was following Wythe's suggestion of "reading [law] two or three hours every day, and devoting the rest of my time to languages, history and Philosophy." More specifically, the young student would "rise about day, and take a walk of half an hour to shake off sleep, read law till breakfast, then attend Mr. Wythe till 12 oclock in the languages, read philosophy till dinner, history till night and poetry till bedtime."<ref>Peter Carr to Thomas Jefferson, March 18, 1788, in ''id.'', at XII, 677.</ref> Jefferson thoroughly approved of this education, telling his nephew, "I like well the distribution of your time mentioned in your letter ... and the counsels of Mr. Wythe so kindly extended to you, leave it necessary for me to add nothing of that kind."<ref>Thomas Jefferson to Peter Carr, August 6, 1788, in ''id.'', at XIII, 470.</ref>

The following year Carr told his uncle, "Your sentiments with regard to Mr. Wythe, and the attention which ought to be paid to his precepts perfectly coincide with mine." Showing a streak of independent thinking, however, Carr questioned the emphasis his tutor put on the classics, stating: "The mode of education which he pursues, and to which he is so much attached, is in a measure fallen into disuse, and for my own part I think not entirely without reason." Carr then asked, "Might not a great part of that time which he bestows on the dead languages, be better employed on the modern languages, natural history, and the Mathematics?"<ref>Peter Carr to Thomas Jefferson, May 29,1789, in ''id.'', at XV, 156.</ref>

As noted above, Elizabeth Wythe died in August 1787, and likely fearing the loneliness that might overtake him, Wythe determined to open a grammar school at his house, which would include the boarding of the students. Wythe was making plans for this even before his wife died, for he placed an advertisement for the school in the Virginia Gazette on August 2, 1787:
<blockquote>
I purpose in October, when the next course of lectures in law and police will commence, to
open a school for reading some of the higher Latin and Greek classics and the approved English
poets and prose writers, and also for exercises in Arithmatic.
George Wythe<ref>''Virginia Gazette and Weekly Advertiser''; August 2, 1787, quoted in Clarkin, ''Serene Patriot'', ''supra'' note 3, at 174; Brown, ''American Aristides'', ''supra'' note 3, at 219; and Dill, ''Wythe, Teacher of Liberty'', ''supra'' note 3, at 65.</ref>
</blockquote>
Unfortunately, the boarding of a number of boisterous youths did not work out, for as was remembered by Tazewell, Wythe found the plan "much more trouble than he could sustain." The teacher "was irritated and vexed by a thousand little occurrences he had never forseen," and the "necessary domestic duties occupied ... much of his time, broke in upon his pursuits, and interrupted even his business and his amusements." Thus, while continuing to give board to Tazewell, Wythe found suitable lodgings for the other students and began teaching them as day students.<ref>Clarkin, ''Serene Patriot'', ''supra'' note 3, at 174; Dill, ''Wythe, Teacher of Liberty'', ''supra'' note 3, at 66.</ref>

As previously mentioned, all of Wythe's students benefitted not only from his academic instructions, but also from their teacher's profound sense of morality. Peter Carr told his uncle that Wythe "adds advice and lessons of morality, which are not only pleasing and instructive now, but will be (I hope) of real utility in the future."<ref>Clarkin, ''Serene Patriot'', ''supra'' note 3, at 157-58, 185.</ref> Along these lines, one of Wythe's special interests was the abolition of slavery, and it is interesting to note that his great-grandfather Keith had been the first Quaker to take a stand for emancipation.<ref>Dill, ''Wythe, Teacher of Liberty'', ''supra'' note 3, at 5.</ref>

In 1785, noted British abolitionist Dr. Richard Price asked Thomas Jefferson about Virginia's sentiments on slavery, and this caused Jefferson to think of Wythe. The then Minister to France responded: "The college of William and Mary in Williamsburg, since the remodeling of it's plan, is the place where are collected together all the young men of Virginia under preparation for public life." He then continued, "They are there under the direction (most of them) of a Mr. Wythe one of the most virtuous of characters, and whose sentiments on the subject of slavery are unequivocal." Jefferson then suggested to Price how he might be able to affect sentiment on the issue: "I am satisfied [that] if you could resolve to address an exhortation to those young men, with all that eloquence of which you are master, that its influence on the future decision of this important question would be great, perhaps decisive."<ref>Thomas Jefferson to Richard Price, August 7, 1785, in ''Jefferson Papers'', ''supra'' note 13, at VIII, 357. Price chose not to write to the William and Mary students.</ref>

While a one-time owner of at least seventeen slaves himself, over the last two decades of his life Wythe managed to divest himself of this burden. Wythe's views on slavery obviously had an effect on many of his students, one example being John Minor III, who, not too many years after he left Wythe's classroom, introduced a bill in the Virginia General Assembly which would have led to a gradual emancipation of the Commonwealth's slaves.<ref>Clarkin, ''Serene Patriot'', ''supra'' note 3, at 157.</ref> In addition, former student Richard Randolph in his will freed all of his slaves and left provisions so that they might be set up as landed farmers. Randolph named Wythe as one of his executors, but, unfortunately, this experiment never proved successful.<ref>''Id.'' at 158.</ref>
</blockquote>
==Section IX==
<blockquote>
Despite the great success of Wythe's law program throughout the 1780s, at the end of the decade he voluntarily relinquished his professorship, never again to teach in an institutional setting. Several events likely combined to force this situation, including the death of his wife, a reorganization of Virginia's court system, and a religious controversy at William and Mary.

As noted above, Elizabeth Wythe died in August 1787, and Wythe thereafter almost completely withdrew from society. Nathaniel Beverly Tucker, son of Wythe's early pupil St. George Tucker and himself the Chair of Law and Police at William and Mary in later years, recalled that during Wythe's last years in Williamsburg, "a morbid sadness came over him, which disqualified him for social enjoyment"; the great teacher was "silent and grave; his whole air and manner betokening a gentle sadness."<ref>Quoted in ''id.'', at 173.</ref> Others, too, recalled Wythe's reluctance to engage in conversation; Wythe "sometimes politely bowed in persons calling on business, attended to it and then politely bowed them out of the house, without speaking a word," and when he visited a neighborhood bakery early each morning to buy his bread, he would "put down his money and t[ake] his loaf without uttering a word."<ref>Benjamin Blake Minor, quoted in ''id.'', at 186. At a coffee-house that he would visit, persons would wonder whether Wythe would make a sound. ''Id.''</ref> At this time the only person Wythe visited was a relative, Mrs. Taliaferro,<ref>''Id.'' at 186, quoting Benjamin Blake Minor.</ref> and he "became more and more immersed in a life of books," with his writings and conversations becoming "ever more pedantic and obscure."<ref>''Id.'' at 186.</ref>

Shortly after his wife's death, another major change occurred in Wythe's life when, in 1788, the Virginia General Assembly reorganized the state's court system. The legislature made the Court of Appeals a separate, five-judge, court, and two of the five judges chosen for the new court were Wythe's colleagues on the chancery court, Pendleton and Blair. In addition, the legislature reduced the number of judges on the High Court of Chancery to one, with Wythe being the only member.

Serving as the Commonwealth's sole chancellor very much appealed to Wythe, for the following year Edmund Randolph informed President Washington that far from desiring a federal judgeship, Wythe "sits in a kind of legal monarchy, which to him is the highest possible gratification."<ref>Edmund Randolph to George Washington, December 15, 1789, in ''The Papers of George Washington'', ed. W.W. Abbot et al. (1983-present), Presidential Series, IV, 415.</ref> One downside, however, was that Wythe's decisions could now be reviewed by the new Court of Appeals, including its Chief Justice Pendleton, a situation which would cause friction in the coming years.<ref>Clarkin, ''Serene Patriot'', ''supra'' note 3, at 182; Dill, ''Wythe, Teacher of Liberty'', ''supra'' note 3, at 71.</ref> For Wythe, the reorganization also meant that he would now have to travel to Richmond four times a year to hold court, and this likely caused him to rethink his commitment to teaching at William and Mary; Peter Carr wrote in May 1789 that Wythe's "public avocations have lately taken up much of his time[,] so that my attendance on him has not been such as I could have wished."<ref>Peter Carr to Thomas Jefferson, May 29,1789, in ''Jefferson Papers'', ''supra'' note 13, at XV, 156.</ref> The court reorganization has traditionally been assigned as the one reason why Wythe stopped teaching and removed to Richmond, and while it was certainly a major factor, Wythe was also led to this decision by a controversy then brewing at William and Mary.

Over the course of the 1780s, "the new impetus given to the College by Jefferson's reforms slowly yielded to the weight of resistance, tradition, and habit ... [and] the conservatives and the Church slowly fought their way back into control of the institution."<ref>Kirtland, ''George Wythe'', ''supra'' note 3, at 133.</ref> The leader of the conservative forces was John Bracken, rector of Bruton Parish in Williamsburg since 1773, and master of the college's grammar school and professor of humanity from 1777 until the 1779 reorganization. In 1787, Bracken sued the College to regain his former position, arguing that the 1779 reorganization was illegal, and one historian who has studied the matter says that the, plaintiff's plea was "a religious protest against the secularism which the Jeffersonian reform had introduced." In court, Wythe's former student John Marshall represented the college and was able to defeat Bracken's suit, yet the college determined to reinstate the Reverend as a professor, and he later served as President of William and Mary for two years after Madison's death in 1812.<ref>''Id.'' at 134-35; Dill, ''Wythe, Teacher of Liberty'', ''supra'' note 3, at 72.</ref>

The situation involving Bracken must have upset Wythe greatly, for on September 14, 1789, Jefferson informed William Short:
<blockquote>
Mr. Wythe has abandoned the college of Wm. & Mary, disgusted with some of the conduct of the professors, and particularly of the ex-professor Bracken, and perhaps too with himself for having suffered himself to be too much irritated with that. The visitors will try to condemn what gave him offence and press him to return; otherwise it is over with the college.... Hampden Sidney ... too, ... is going to nothing, owing to the religious phrensy they have inspired into the boys young and old, which their parents have no taste for.<ref>Thomas Jefferson to William Short, September 14, 1789, ''Jefferson Papers'', ''supra'' note 13, at XVI, 25-26. Beyond the Jefferson letter, one person has written that the traditional reason for Wythe's move, the change in court structure, could not have been the real reason, for "the Chancery and the Supreme Court of Appeals had by then been sitting in Richmond for nearly ten years." Kirtland, ''George Wythe'', ''supra'' note 3, at 143 n.105. Of course travel likely became harder for Wythe as he aged, and under the reorganization the court now met four times a year in Richmond instead of just twice.

As for Wythe's dissatisfaction with the actions of others, Imogene Brown has written, "Beneath the dignified exterior, Wythe was critical, perhaps too critical, of others, demanding of them the same high standards he set for himself. He was proud, almost to the point of being self-righteous, and personal and professional criticism hurt him deeply." This source continues, "Wythe was aware of his tendency to fret and brood, and impatient with himself because of it. Yet he was never able to master it and indeed, as he grew older, the characteristic became more pronounced." Brown, ''American Aristides'', ''supra'' note 3, at 223.</ref>
</blockquote>
The William and Mary Board of Visitors was unable to change Wythe's mind, so the law professor's resignation was reluctantly accepted; at the same time the school conferred on Wythe an honorary Doctor of Laws degree.<ref>Tyler, "George Wythe," ''supra'' note 3, at 71.</ref> The changes at William and Mary upset Jefferson greatly, for when recommending a college for his nephew in 1790, Jefferson told a brother-in-law, "I know there is nobody left at [William and Mary] to render his return there an object"; instead, Jefferson suggested Princeton or, possibly, the University of Pennsylvania.<ref>Thomas Jefferson to Francis Eppes, October 8,1790, in ''Jefferson Papers'', ''supra'' note 13, at XVII, 581. </ref> Disheartened that his plans for his alma mater had gone awry, Jefferson in his retirement founded the University of Virginia.

As for what occurred at William and Mary after Wythe's resignation, in March 1790 the Visitors named Wythe's former pupil St. George Tucker as his replacement in the chair of law and police. Tucker, who would serve in this position until his own disagreement with the faculty in 1804, continued to assign readings and deliver lectures, the latter of which he later incorporated into the first American edition of [[Blackstone's Commentaries|Blackstone's ''Commentaries'']]. Tucker, however, unlike Wythe, did not come from a legislative background, and although he regularly lectured on the state and national constitutions, he abandoned the idea of teaching practical politics through a moot legislature.<ref>On Tucker's tenure at William and Mary, see Charles T. Cullen, "St. George Tucker," in Bryson, ''Legal Education in Virginia'', ''supra'' note 3, at 657-686. After Tucker's resignation, the reputation of William and Mary's law program declined significantly, although the seventeen-year tenure of Tucker's son Nathaniel Beverly Tucker (1834-1851) helped revive part of its good name. The school continued teaching law until 1861, and in 1922 the law program, currently under the name of the Marshall-Wythe School of Law, was reestablished. See generally Bryson, ''Legal Education in Virginia''.

Compared to the William and Mary of St. George Tucker's tenure and later years, Wythe might have had a larger impact on law teaching at Kentucky's Transylvania University, where the first three law professors were supposedly Wythe students and where moot courts and moot legislatures were part of the law and politics curriculum. See Paul D. Carrington, "Teaching Law and Virtue at Transylvania University: The George Wythe Tradition in the Antebellum Years," 41 ''Mercer L. Rev.'' 673 (1990).</ref> Tucker student Joseph C. Cabell in 1801 wrote a friend that "You may remember that a notion formerly prevailed here that a student of law should make the study of his profession subservient to that of politics. This opinion however seems not to prevail here" under Tucker.<ref>Cullen, "St. George Tucker," in Bryson, ''Legal Education in Virginia'', ''supra'' note 3, at 668.</ref>

Beyond Jefferson's letter to Short, the best evidence that Wythe's decision to quit William and Mary was not based solely on the reorganization of the Virginia court system is that he did not immediately move to Richmond; but, rather, waited two-and-a-half years after the court reorganization, and two years after Jefferson noted that Wythe was resigning from his professorship. During this transitional period, the Chancellor, in a private capacity, continued to instruct a number of young men in the law and classics, including Tazewell, Carr, [[John Coalter]], [[William Munford]], and [[John Wayles Eppes]].

John Coalter (1771-1838), who later served for many years on the Virginia Court of Appeals, began the study of law under Wythe in the fall of 1789, at which time he told his father:
<blockquote>
I have just begun to attend Mr. Wythe on Law to which I shall do with pleasure and alacrity. The exalted character and tried abilities of that Gentleman promise the apt & diligent Student a certain noble source of instruction; and his attentions and willingness to inform flatters me that even my improvement is not to be doubted.<ref>John Coalter to Michael Coalter, November 24, 1789, quoted in "Glimpses of Old College Life," 8 ''Will. & Mary Qtly.'' 153, 157 (1900); see also Clarkin, ''Serene Patriot'', ''supra'' note 3, at 183. Brown, ''American Aristides'', ''supra'' note 3, at 221, also uses this quote, although she states that it comes from a letter William Munford sent to John Coalter on April 24, 1789.</ref>
</blockquote>
Coalter's friend William Munford (1775-1825) also studied the law and classics with Wythe, and he told Coalter in June 1790, "My great resource is Mr. Wythe." Munford thought that he might be asked to live with Wythe, and he noted that "If so, your friend ['s] fortune is made. Nothing could advance me faster in the world than the reputation of having been educated by Mr. Wythe, for such a man as he casts a light upon all around him."<ref>William Munford to John Coalter, June 13, 1790, in "Glimpses of Old College Life," ''supra'' note 190, at 153-54. </ref> Munford was correct in his prediction about living arrangements, for in April 1791 he was writing Coalter that "thro' the surprising friendship and generosity of Mr. Wythe, I live in his house, and board at his table, at the same time enjoying the benefit of his instructions without paying a farthing. My esteem for this man, together with my love, increase every day."<ref>William Munford to John Coalter, April 23, 1791, quoted in Brown, ''American Aristides'', ''supra'' note 3, at 270.</ref>

Next to Jefferson, it is likely that Munford was the student who had the closest relationship with Wythe, and he shared his teacher's love of both the law and classical literature. Munford later served in the General Assembly and as Reporter of the Virginia Court of Appeals, yet he is best known for his magnificent translation of the Iliad.<ref>On Munford, see "William Munford," ''DAB'', ''supra'' note 3, at XIII, 326-27. Munford was chosen to give the eulogy at Wythe's funeral.</ref>

One of the "old" students, Peter Carr, left Wythe’s tutelage in late 1789 or early 1790,<ref>By March 1790, Carr was residing in Goochland County, reading law books recommended by Jefferson. See Thomas Jefferson to Peter Carr, March 28, 1790, in ''Jefferson Papers'', ''supra'' note 13, at XVI, 276-77.</ref> although at this time Jefferson sent another of his nephews, John Wayles Eppes (1773-1823), to study under Wythe. In December 1789, Jefferson wrote Wythe that Eppes' father desired that his son quit William and Mary and instead attend Wythe, studying mathematics, natural philosophy, and history before learning the law.<ref>Thomas Jefferson to George Wythe, December 17, 1789, in ''id.'', at XVI, 37.</ref> It is assumed that Wythe agreed to such,<ref>The very careful A.T. Dill, ''Wythe, Teacher of Liberty'', ''supra'' note 3, at 54-55, states that Wythe was agreeable to this and actually designed a specific course of study which Eppes undertook, although no evidence for this statement is given.</ref> although ten months later Eppes was no longer in Williamsburg.<ref>See Thomas Jefferson to Francis Eppes, October 8, 1790, ''Jefferson Papers'', ''supra'' note 13, at XVII, 581.</ref> Thereafter, Eppes followed Jefferson to Philadelphia, where he studied law under his uncle's direction, and still later he married Jefferson's daughter Maria and was a strong supporter of his father-in-law's party while serving five terms in Congress (1803-1811, 1813-1815) and two years in the U.S. Senate (1817-1819).<ref>On Eppes, see "John Wayles Eppes," ''DAB'', ''supra'' note 3, at VI, 170-71.</ref>
</blockquote>

==Section X==
<blockquote>
George Wythe finally moved to Richmond in September 1791, where he would live the final fifteen years of his life. As he aged, Wythe became a figure of veneration and awe, and his erudition caused persons to refer to him as "the learned" or "the famous" judge.

This erudition was in full view in Wythe's written opinions on the court of chancery, and one historian has stated that "his learning was so extensive and so lavishly spread upon the pages of his opinions that these opinions appear somewhat pedantic and cumbersome."<ref>Anderson, "Teacher of Jefferson and Marshall," ''supra'' note 1, at 335. Many persons have accused Wythe of pedantry, including William Cabell Rives (Wythe "sometimes wore the air of pedantry"), quoted in Clarkin, ''Serene Patriot'', ''supra'' note 3, at 150; and William Wirt (Wythe "carried his love of antiquity rather too far; for he frequently subjected himself to the charge of pedantry"), quoted in Dill, ''Wythe, Teacher of Liberty'', ''supra'' note 3, at 19.

In addition, it has been said that Wythe's own will was "strongly marked by eccentricity. The language was scarcely that of orthodox legal phraseology and was interspersed with Greek and Latin phrases and pious verse." Boyd, "Murder of Wythe," ''supra'' note 22, at 21.</ref> For example:
<blockquote>
In the eight pages of one opinion with its footnotes, Bracton and Justinian, Juvenal's Satires, and Quintilian, Euclid, Archimedes and Hiero, hydrostatic experiments and Coke on Littleton, Tristam Shandy and Petronius, Halley and Price and Prometheus, Don Quixote and Swift's Tale of a Tub, Locke's Essay on Human Understanding, and Turkish travellers, chase one another up and down to the bewilderment of all but the universal scholar.<ref>Anderson, "Teacher of Jefferson and Marshall," ''supra'' note 1, at 335.</ref>
</blockquote>
Wythe was obviously intensely proud of the effort he put into his opinions, and in his later years one of the major vexations in his life was that there was a higher court, led by his chief nemesis Edmund Pendleton, which could review, and reverse, his decisions. In the fourteen years between the formation of the separate Court of Appeals and the 1803 death of Pendleton, over 150 of Wythe's cases were appealed to the higher court, and of these, more than half were reversed or in some way modified by Pendleton. This enraged Wythe, who in 1795 "took the unprecedented step of writing a volume of reports on chancery cases reviewed by the Court of Appeals in which he attacked his superior judge at times with bitter sarcasm."<ref>Dill, ''Wythe, Teacher of Liberty'', ''supra'' note 3, at 74.</ref> Pendleton was initially inclined to respond in like manner, but the elderly judge was finally convinced that this would serve no purpose.

Wythe served as the Commonwealth's sole Chancellor until 1802, when his judicial lode was somewhat lightened by the General Assembly. The legislature divided the state into three Chancery districts, each with its own chancellor, with sessions to be held in Williamsburg, Richmond, and Staunton. Wythe was given the Richmond district.<ref>Clarkin, ''Serene Patriot'', ''supra'' note 3, at 206.</ref>

Besides his judicial position, other forms of public service continued to attract Wythe during his Richmond years. In 1795, the Chancellor was named chairman of a committee appointed by the General Assembly to compile and publish the state's laws on lands, tenements, and hereditaments. What is most interesting about this committee is that it appears probable that all of the other members were former Wythe students: John Marshall, John Wickham, John Brown, and Bushrod Washington.<ref>Hemphill, "Wythe, America's First Law Professor," ''supra'' note 3, at 79. The work of this committee was never completed. Hemphill states that all of the members were Wythe students except for Bushrod Washington, ''id.'' at 79 n.2, yet as is shown above, Washington did study under Wythe at William and Mary in 1780. The one student for whom there might be any question is Wickham.</ref> In addition, Wythe presided over two meetings of Virginia's electoral college, in 1800 and 1804, both of which cast its votes for Wythe's most famous student, Thomas Jefferson.

As he had throughout his life, Wythe continued his own education while in Richmond, for he engaged the local spiritual leader of the Richmond Jewish community to teach him Hebrew.<ref>Dill, ''Wythe, Teacher of Liberty'', ''supra'' note 3, at 78.</ref> This was his seventh language, for he already could read English, French, Italian, Spanish, Latin, and Greek.

As would be expected, Wythe also continued his teaching of young men, in both the law and classics. Although Littleton W. Tazewell stayed in Williamsburg to complete his studies at William and Mary, Wythe had William Munford move with him to Richmond, and this student later remembered that "for three years, at all spare moments, he devoted himself without reward to my instruction, giving me the best and most excellent advice, and imparting knowledge which I never could have acquired otherwise."<ref>Quoted in Brown, ''American Aristides'', ''supra'' note 3, at 227.</ref> Munford was one of Wythe's last law students, and he distinctly recalled his teacher's instructions on learning the subject: "Don't skim it; read deeply, and ponder what you read; they begin to make lawyers now without the ''viginti annorum lucubrationes'' of Lord Coke; they are mere skimmers of law and know little else."<ref>Quoted in Clarkin, ''Serene Patriot'', ''supra'' note 3, at 188; and Brown, ''American Aristides'', ''supra'' note 3, at 227. The Latin has been translated as "twenty years of reflection."</ref>

At this time, one of Wythe's students in the classics was John Thomson (1777-1799), who "would have been one of the ablest of Virginia's scholars and lawyers" had he not died very young.<ref>Clarkin, ''Serene Patriot'', ''supra'' note 3, at 174; ''EVB'', ''supra'' note 117, at II, 246. The sources do not state where Thomson studied with Wythe, although because of his age it almost had to be Richmond rather than Williamsburg. Another classics student was a Charles Turnbull. Clarkin, ''Serene Patriot'', at 174.</ref> The most notable Wythe student during his Richmond years, however, and next to Jefferson and Marshall the most famous person Wythe ever taught, was [[Henry Clay]].

Clay (1777-1852) was a sixteen-year-old clerk in the chancery office when, in 1793, he was asked by Wythe to serve as his amanuensis. For nearly four years, Clay painstakingly wrote out Wythe's judicial opinions and private correspondence, and in return Wythe instructed Clay in history, law, and the classics. Wythe had his young pupil read "Harris’s ''Homer'', Tooke’s ''Diversions of Purley'', Bishop Lowth’s ''Grammar'', Plutarch’s ''Lives'', and [other] books of law and of history," including Coke on Littleton.

Clay's foremost biographer, Robert V. Remini, has stated that "the chancellor's society and assistance became an extended seminar in the law, the classics, literature, history, and social refinement and grace." He continues, "Wythe took a bright, eager, talented, attentive, promising, and courteous sixteen-year-old student, and by the time Clay reached the age of twenty-one, the chancellor had molded him into an educated, cultivated, urbane, and articulate gentleman, with considerable knowledge of the law."<ref>Remini, ''Henry Clay'', ''supra'' note 115, at 9-12; Clarkin, ''Serene Patriot'', ''supra'' note 3, at 192; see also Henry Clay to Benjamin B. Minor, May 3, 1851, ''Clay Papers'', ''supra'' note 2, at X, 886-89.</ref>

Wythe saw that Clay finished his legal education by studying for a year under the Commonwealth's Attorney General, Robert Brooke, and after passing the bar the young man settled in Kentucky. Clay, of course, went on to become the most notable American politician never elected to the Presidency, serving, over his fifty-year public career, as Speaker of the U.S. House, Secretary of State, and "dictator" in the U.S. Senate. One source has stated that "[t]hroughout his long life, Clay's position on public issues reflected the teachings of Wythe," and Clay gave his first-born son the middle name of Wythe.<ref>Carrington, "Transylvania," ''supra'' note 188, at 680-85. As suggested above in the text, the best biography of Clay is Remini, ''Henry Clay'', ''supra'' note 115. Although Remini does not mention this, it has also been stated that Clay studied law under Wythe's pupil Bushrod Washington. See Cushman, ''Supreme Court Justices'', ''supra'' note 100, at 53.</ref>

George Wythe's beliefs in liberty and the importance of education also led him to teach his black servants to read and write,<ref>In July 1791, for instance, William Munford was surprised to discover that Wythe was teaching one of his servants, Jimmy, to write. See, e.g., Clarkin, ''Serene Patriot'', ''supra'' note 3, at 188-89.</ref> the most noted of whom was Michael Brown, a young mulatto who was freed by Wythe. The Chancellor also taught Latin and Greek to Brown, and in his will Wythe both left a legacy for Brown and asked President Jefferson to continue the young man's education.

It was partially because of this legacy to the servant that both Wythe and Brown were murdered by Wythe's grandnephew, George Wythe Sweeney; a dissipated, spendthrift young man, Sweeney was the residual legatee of Wythe's will. Long the beneficiary of Wythe's generosity, in 1806 the ungrateful Sweeney began to steal from his great-uncle, including the forging of at least six checks. These crimes were discovered, yet before Sweeney could be charged, he placed arsenic in the food or drink of the Wythe household. Brown died shortly thereafter, but Wythe lingered in agony for two weeks, during which he disinherited Sweeney. Unfortunately, on June 8, 1806, the poison finally led to the venerable Chancellor's death.<ref>On Wythe's poisoning, his death, and the trial of Sweeney, see the two essays in ''Murder of Wythe'', ''supra'' note 3.</ref>

Because of his nearly sixty years of service to the Commonwealth, as well as the manner of his death, the public was greatly grieved by Wythe's passing; one historian has determined that "more column inches of eulogy [were devoted to Wythe] than had been elicited in Virginia newspapers by the death of George Washington or by that of any other person."<ref>W. Edwin Hemphill, "Examinations of George Wythe Swinney for Forgery and Murder: A Documentary Essay," in ''The Murder of George Wythe: Two Essays'' (1955), 35.</ref> The ''Richmond Enquirer'', for instance, opined that "Kings may require mausoleums to consecrate their memory; saints may claim the privileges of canonization; but the venerable GEORGE WYTHE needs no other monument than the services rendered to his country, and the universal sorrow which that country sheds over his grave."<ref>Richmond ''Enquirer'', June 10, 1806, quoted in Boyd, "Murder of Wythe," ''supra'' note 22, at 20.</ref>

There could be no more fitting eulogy for Wythe, however, than the realization that upon his death in 1806, the nation's President (Jefferson), its Chief Justice (Marshall), an Associate Justice (Washington), the Attorney General (Breckinridge), U.S. Senators from Virginia (Giles) and Kentucky (Thruston), and the most influential state judge in America (Roane) all were former students of George Wythe.<ref>Thomas Hunter, "The Teaching of George Wythe," in ''The History of Legal Education in the United States: Commentaries and Primary Sources,'' ed. Steve Sheppard (Pasadena, CA: Salem Press, 1999), 1:138-168.</ref>.
</blockquote>
==See also==
[[Wythe the Teacher]]

==References==
<references />

==External links==

[[Category:Biographies (Articles)]]

Memoir, Correspondence and Miscellanies from the Papers of Thomas Jefferson

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{{DISPLAYTITLE:''Memoir, Correspondence and Miscellanies from the Papers of Thomas Jefferson''}}
Thomas Jefferson Randolph, ed., ''Memoir, Correspondence and Miscellanies from the Papers of Thomas Jefferson,'' vol. 1 (Charlottesville, VA: F. Carr, 1829), 2, 5-16, 32-41, 91-94, 119-120, 268-269, 328-330, 345-347, 405, 426-428.<ref>Thomas Jefferson Randolph, ed., ''Memoir, Correspondence and Miscellanies from the Papers of Thomas Jefferson,'' vol. 1 (Charlottesville, VA: F. Carr, 1829), 2, 5-16, 32-41, 91-94, 119-120, 268-269, 328-330, 345-347, 405, 426-428.</ref>

==Text==
===Page 1===

<blockquote>
<center>
'''MEMOIR.'''<br /><br />
<hr width="50" />
<br />
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January 6, 1821. At the age of 77, I begin to make some memoranda, and state some recollections of dates and facts concerning myself, for my own more ready reference, and for the information of my family.

The tradition in my father's family was, that their ancestor came to this country from Wales, and from near the mountain of Snowdon, the highest in Great Britain. I noted once a case from Wales, in the law reports, where a person of our name was either plaintiff or defendant; and one of the same name was secretary to the Virginia Company. These are the only instances in which I have met with the name in that country. I have found it in our early records; but the first particular information I have of any ancestor was of my grandfather, who lived at the place in Chesterfield called Ozborne's, and owned the lands afterwards the glebe of the parish. He had three sons; Thomas who died young, Field who settled on the waters of Roanoke and left numerous descendants, and Peter, my father, who settled on the lands I still own, called Shadwell, adjoining my present residence. He was born February 29, 1707-8, and intermarried 1739, with Jane Randolph, of the age of 19, daughter of Isham Randolph, one of the seven sons of that name and family settled at Dungeoness in Goochland. They trace their pedigree far back in England and Scotland, to which let every one ascribe the faith and merit he chooses.

My father's education had been quite neglected; but being of a strong mind, sound judgment, and eager after information, he read much and improved himself, insomuch that he was chosen, with Joshua Fry, professor of Mathematics in William and Mary college, to continue the boundary line between Virginia and North Carolina, which had been begun by Colonel Byrd; and was afterwards employed with the same Mr. Fry, to make the first map of Virginia which had ever been made, that of Captain Smith being
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<blockquote>
merely a conjectural sketch. They possessed excellent materials for so much of the country as is below the blue ridge; little being then known beyond that ridge. He was the third or fourth settler, about the year 1737, of the part of the country in which I live. He died August 17th, 1757, leaving my mother a widow, who lived till 1776, with six daughters and two sons, myself the elder. To my younger brother he left his estate on James river, called Snowden, after the supposed birth place of the family: to myself, the lands on which I was born and live. He placed me at the English school at five years of age; and at the Latin at nine, where I continued until his death. My teacher, Mr. Douglas, a clergyman from Scotland, with the rudiments of the Latin and Greek languages, taught me the French; and on the death of my father, I went to the Reverend Mr. Maury, a correct classical scholar, with whom I continued two years; and then, to wit, in the spring of 1760, went to William and Mary college, where I continued two years. It was my great good fortune, and what probably fixed the destinies of my life, that Dr. William Small of Scotland, was then professor of Mathematics, a man profound in most of the useful branches of science, with a happy talent of communication, correct and gentlemanly manners, and an enlarged and liberal mind. 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. Fortunately, the philosophical chair became vacant soon after my arrival at college, and he was appointed to fill it per interim: and he was the first who ever gave, in that college, regular lectures in Ethics, Rhetoric, and Belles lettres. He returned to Europe in 1762, having previously filled up the measure of his goodness to me, by procuring for me, from his most intimate friend George Wythe, a reception as a student of law, under his direction, and introduced me to the acquaintance and familiar table of Governor Fauquier, the ablest man who had ever filled that office. With him, and at his table, Dr. Small and Mr. Wythe, his ''amid omnium horarum,'' and myself, formed a ''partie quarree,'' and to the habitual conversations on these occasions I owed much instruction. Mr. Wythe continued to be my faithful and beloved mentor in youth, and my most affectionate friend through life. In 1767, he led me into the practice of the law at the bar of the General Court, at which I continued until the Revolution shut up the courts of justice.*

<div style="font-size: 85%;">
* For a sketch of the life and character of Mr. Wythe, see my letter of [[Jefferson-Sanderson Correspondence|August 31, 1820, to Mr. John Saunderson]]. [See [[#Page 91|Appendix, note A]].]
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===Page 5===

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The next event which excited our sympathies for Massachusetts, was the Boston port bill, by which that port was to be shut up on the 1st of June, 1774. This arrived while we were in session in the spring of that year. The lead in the House, on these subjects, being no longer left to the old members, Mr. Henry, R. H. Lee, Fr. L. Lee, three or four other members, whom I do not recollect, and myself, agreeing that we must boldly take an unequivocal stand in the line with Massachusetts, determined to meet and consult on the proper measures, in the council chamber, for the benefit of the library in that room. We were under conviction of the necessity of arousing our people from the lethargy into which they had fallen, as to passing events; and thought that the appointment of a day of general fasting and prayer, would be most likely to call up and alarm their attention. No example of such a solemnity had existed since the days of our distresses in the war of '55, since which a new generation had grown up. With the help, therefore, of Rushworth, whom we rummaged over for the revolutionary precedents and forms of the Puritans of that day, preserved by him, we cooked up a resolution, somewhat modernizing their phrases, for appointing the 1st day of June, on which the port bill was to commence, for a day of fasting, humiliation, and prayer,
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to implore Heaven to avert from us the evils of civil war, to inspire us with firmness in support of our rights, and to turn the hearts of the King and Parliament to moderation and justice. To give greater emphasis to our proposition, we agreed to wait the next morning on Mr. Nicholas, whose grave and religious character was more in unison with the tone of our resolution, and to solicit him to move it. We accordingly went to him in the morning. He moved it the same day; the 1st of June was proposed; and it passed without opposition. The Governor dissolved us, as usual. We retired to the Apollo, as before, agreed to an association, and instructed the committee of correspondence to propose to the corresponding committees of the other colonies, to appoint deputies to meet in Congress at such place, annually, as should be convenient, to direct, from time to time, the measures required by the general interest: and we declared that an attack on any one colony, should be considered as an attack on the whole. This was in May. We further recommended to the several counties to elect deputies to meet at Williamsburg, the 1st of August ensuing, to consider the state of the colony, and particularly to appoint delegates to a general Congress, should that measure be acceded to by the committees of correspondence generally. It was acceded to; Philadelphia was appointed for the place, and the 5th of September for the time of meeting. We returned home, and in our several counties invited the clergy to meet assemblies of the people on the 1st of June, to perform the ceremonies of the day, and to address to them discourses suited to the occasion. The people met generally, with anxiety and alarm in their countenances, and the effect of the day, through the whole colony, was like a shock of electricity, arousing every man and placing him erect and solidly on his centre. They chose, universally, delegates for the convention. Being elected one for my own county, I prepared a draught of instructions to be given to the delegates whom we should send to the Congress, which I meant to propose at our meeting.* In this I took the ground that, from the beginning, I had thought the only one orthodox or tenable, which was, that the relation between Great Britain and these colonies was exactly the same as that of England and Scotland, after the accession of James and until the union, and the same as her present relations with Hanover, having the same executive chief, but no other necessary political connection; and that our emigration from England to this country gave her no more rights over us, than the emigrations of the Danes and Saxons gave to the present authorities of the mother country, over

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[* See Appendix, note C.]<ref>Note C. is "''On the instructions given to the first delegation of Virginia to Congress, in August, 1774''," which Mr. Wythe was not in attendance.</ref>
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England. In this doctrine, however, I had never been able to get any one to agree with me but Mr. Wythe. He concurred in it from the first dawn of the question, What was the political relation between us and England? Our other patriots, Randolph, the Lees, Nicholas, Pendleton, stopped at the halfway house of John Dickinson, who admitted that England had a right to regulate our commerce, and to lay duties on it for the purposes of regulation, but not of raising revenue. But for this ground there was no foundation in compact, in any acknowledged principles of colonization, nor in reason: expatriation being a natural right, and acted on as such, by all nations, in all ages. I set out for Williamsburg some days before that appointed for our meeting, but was taken ill of a dysentery on the road, and was unable to proceed. I sent on, therefore, to Williamsburg two copies of my draught, the one under cover to Peyton Randolph, who I knew would be in the chair of the convention, the other to Patrick Henry. Whether Mr. Henry disapproved the ground taken, or was too lazy to read it (for he was the laziest man in reading I ever knew) I never learned: but he communicated it to nobody. Peyton Randolph informed the convention he had received such a paper from a member, prevented by sickness from offering it in his place, and he laid it on the table for perusal. It was read generally by the members, approved by many, though thought too bold for the present state of things; but they printed it in pamphlet form, under the title of' A summary view of the rights of British America.' It found its way to England, was taken up by the opposition, interpolated a little by Mr. Burke so as to make it answer opposition purposes, and in that form ran rapidly through several editions. This information I had from Parson Hurt, who happened at the time to be in London, whither he had gone to receive clerical orders; and I was informed afterwards by Peyton Randolph, that it had procured me the honor of having my name inserted in a long list of proscriptions, enrolled in a bill of attainder commenced in one of the Houses of Parliament, but suppressed in embryo by the hasty step of events, which warned them to be a little cautious. Montague, agent of the House of Burgesses in England, made extracts from the bill, copied the names, and sent them to Peyton Randolph. The names I think were about twenty, which he repeated to me, but I recollect those only of Hancock, the two Adamses, Peyton Randolph himself, Patrick Henry, and myself.* The convention met on the 1st of August, renewed their association, appointed delegates to the Congress, gave them instructions very temperately and properly expressed, both as to style and matter ;* and they repaired to Philadelphia at the time appointed. The splendid proceedings of that Congress, at their first session, belong to general history, are known to every one, and need not therefore be noted here. They terminated their session on the 26th of October, to meet again on the 10th of May ensuing. The convention,at their ensuing session of March '75, approved of the proceedings of Congress, thanked their delegates, and reappointed the same persons to represent the colony at the meeting to be held in May: and foreseeing the probability that Peyton Randolph, their president, and speaker also of the House of Burgesses, might be called off, they added me, in that event, to the delegation.

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* See Girardin's History of Virginia, Appendix No. 12. note.
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Mr. Randolph was according to expectation obliged to leave the chair of Congress, to attend the General Assembly summoned by Lord Dunmore, to meet on the 1st day of June, 1775. Lord North's conciliatory propositions, as they were called, had been received by the Governor, and furnished the subject for which this assembly was convened. Mr. Randolph accordingly attended, and the tenor of these propositions being generally known, as having been addressed to all the governors, he was anxious that the answer of our Assembly, likely to be the first, should harmonise with what he knew to be the sentiments and wishes of the body he had recently left. He feared that Mr. Nicholas, whose mind was not yet up to the mark of the times, would undertake the answer, and therefore pressed me to prepare it. I did so, and, with his aid, carried it through the House, with long and doubtful scruples from Mr. Nicholas and James Mercer, and a dash of cold water on it here and there, enfeebling it somewhat, but finally with unanimity, or a vote approaching it. This being passed, I repaired immediately to Philadelphia, and conveyed to Congress the first notice they had of it. It was entirely approved there. I took my seat with them on the 21st of June. On the 24th, a committee which had been appointed to prepare a declaration of the causes of taking up arms, brought in their report (drawn I believe by J. Rutledge) which, not being liked, the House recommitted it, on the 26th, and added Mr. Dickinson and myself to the committee. On the rising of the House, the committee having not yet met, I happened to find myself near Governor W. Livingston, and proposed to him to draw the paper. He excused himself and proposed that I should draw it. On my pressing him with urgency, 'We are as yet but new acquaintances, sir,' said he, 'why are you so earnest for my doing it?' 'because,' said I, 'I have been informed

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[* See Appendix, note D.]<ref>Note D. is "''Instructions for the Deputies appointed to meet in General Congress on the part of this Colony.''"</ref>
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that you drew the Address to the people of Great Britain, a production, certainly, of the finest pen in America.' 'On that,' says he, 'perhaps, sir, you may not have been correctly informed.' I had received the information in Virginia from Colonel Harrison on his return from that Congress. Lee, Livingston, and Jay had been the committee for that draught. The first, prepared by Lee, had been disapproved and recommitted. The second was drawn by Jay, but being presented by Governor Livingston, had led Colonel Harrison into the error. The next morning, walking in the hall of Congress, many members being assembled, but the House not yet formed, I observed Mr. Jay, speaking to R. H. Lee, and leading him by the button of his coat to me. 'I understand, sir,' said he to me, 'that this gentleman informed you, that Governor Livingston drew the Address to the people of Great Britain.' I assured him, at once, that I had not received that information from Mr. Lee, and that not a word had ever passed on the subject between Mr. Lee and myself; and after some explanations the subject was dropped. These gentlemen had had some sparrings in debate before, and continued ever very hostile to each other.

I prepared a draught of the declaration committed to us. It was too strong for Mr. Dickinson. He still retained the hope of reconciliation with the mother country, and was unwilling it should be lessened by offensive statements. He was so honest a man, and so able a one, that he was greatly indulged even by those who could not feel his scruples. We therefore requested him to take the paper, and put it into a form he could approve. He did so, preparing an entire new statement, and preserving of the former only the last four paragraphs and half of the preceding one. We approved and reported it to Congress, who accepted it. Congress gave a signal proof of their indulgence to Mr. Dickinson, and of their great desire not to go too fast for any respectable part of our body, in permitting him to draw their second petition to the King according to his own ideas, and passing it with scarcely any amendment. The disgust against its humility was general; and Mr. Dickinson's delight at its passage was the only circumstance which reconciled them to it. The vote being passed, although further observation on it was out of order, he could not refrain from rising and expressing his satisfaction, and concluded by saying 'there is but one word, Mr. President, in the paper which I disapprove, and that is the word Congress;' on which Ben Harrison rose and said 'there is but one word in the paper, Mr. President, of which I approve, and that is the word Congress.'

On the 22nd of July, Dr. Franklin, Mr. Adams, R. H. Lee, and myself were appointed a committee to consider and report on
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Lord North's conciliatory resolution. The answer of the Virginia Assembly on that subject having been approved, I was requested by the committee to prepare this report, which will account for the similarity of feature in the two instruments.

On the 15th of May, 1776, the convention of Virginia instructed their delegates in Congress, to propose to that body to declare the colonies independent of Great Britain, and appointed a committee to prepare a declaration of rights and plan of government.

*In Congress, Friday, June 7, 1776. The delegates from Virginia moved, in obedience to instructions from their constituents, that the Congress should declare that these United Colonies are, and of right ought to be, free and independent states, that they are absolved from all allegiance to the British crown, and that all political connection between them and the state of Great Britain is, and ought to be, totally dissolved; that measures should be immediately taken for procuring the assistance of foreign powers, and a Confederation be formed to bind the colonies more closely together.

The House being obliged to attend at that time to some other business, the proposition was referred to the next day, when the members were ordered to attend punctually at ten o'clock.

Saturday, June 8. They proceeded to take it into consideration, and referred it to a committee of the whole, into which they immediately resolved themselves, and passed that day and Monday the 10th in debating on the subject.

It was argued by Wilson, Robert R. Livingston, E. Rutledge, Dickinson and others—

That, though they were friends to the measures themselves, and saw the impossibility that we should ever again be united with Great Britain, yet they were against adopting them at this time:

That the conduct we had formerly observed was wise and proper now, of deferring to take any capital step till the voice of the people drove us into it:

That they were our power, and without them our declarations could not be carried into effect:

That the people of the middle colonies (Maryland, Delaware, Pennsylvania, the Jerseys, and New York) were not yet ripe for bidding adieu to British connection, but that they were fast ripening, and, in a short time, would join in the general voice of America:

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[* Here, in the original manuscript, commence the 'two preceding sheets' referred to by Mr. Jefferson, page 20, as containing 'notes' taken by him 'whilst these things were going on.' They are easily distinguished from the body of the MS. in which they were inserted by him, being of a paper very different in size, quality and color, from that on which the latter is written.]
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That the resolution, entered into by this House on the 15th of May, for suppressing the exercise of all powers derived from the crown, had shewn, by the ferment into which it had thrown these middle colonies, that they had not yet accommodated their minds to a separation from the mother country:

That some of them had expressly forbidden their delegates to consent to such a declaration, and others had given no instructions, and consequently no powers to give such consent:

That if the delegates of any particular colony had no power to declare such colony independent, certain they were, the others could not declare it for them; the colonies being as yet perfectly independent of each other:

That the assembly of Pennsylvania was now sitting above stairs, their convention would sit within a few days, the convention of New York was now sitting, and those of the Jerseys and Delaware counties would meet on the Monday following, and it was probable these bodies would take up the question of Independence, and would declare to their delegates the voice of their state:

That if such a declaration should now be agreed to, these delegates must retire, and possibly their colonies might secede from the Union:

That such a secession would weaken us more than could be compensated by any foreign alliance:

That in the event of such a division, foreign powers would either refuse to join themselves to our fortunes, or, having us so much in their power as that desperate declaration would place us, they would insist on terms proportionably more hard and prejudicial:

That we had little reason to expect an alliance with those to whom alone, as yet, we had cast our eyes:

That France and Spain had reason to be jealous of that rising power, which would one day certainly strip them of all their American possessions:

That it was more likely they should form a connection with the British court, who, if they should find themselves unable otherwise to extricate themselves from their difficulties, would agree to a partition of our territories, restoring Canada to France, and the Floridas to Spain, to accomplish for themselves a recovery of these colonies:

That it would not be long before we should receive certain information of the disposition of the French court, from the agent whom we had sent to Paris for that purpose:

That if this disposition should be favorable, by waiting the event of the present campaign, which we all hoped would be successful, we should have reason to expect an alliance on better terms:
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That this would in fact work no delay of any effectual aid from such ally, as, from the advance of the season and distance of our situation, it was impossible we could receive any assistance during this campaign:

That it was prudent to fix among ourselves the terms on which we would form alliance, before we declared we would form one at all events:

And that if these were agreed on, and our Declaration of Independence ready by the time our Ambassador should be prepared to sail, it would be as well, as to go into that Declaration at this day.

On the other side, it was urged by J. Adams, Lee, Wythe and others, that no gentleman had argued against the policy or the right of separation from Britain, nor had supposed it possible we should ever renew our connection; that they had only opposed its being now declared:

That the question was not whether, by a Declaration of Independence, we should make ourselves what we are not; but whether we should declare a fact which already exists:

That, as to the people or parliament of England, we had always been independent of them, their restraints on our trade deriving efficacy from our acquiescence only, and not from any rights they possessed of imposing them, and that so far, our connection had been federal only, and was now dissolved by the commencement of hostilities:

That, as to the King, we had been bound to him by allegiance, but that this bond was now dissolved by his assent to the late act of parliament, by which he declares us out of his protection, and by his levying war on us, a fact which had long ago proved us out of his protection; it being a certain position in law, that allegiance and protection are reciprocal, the one ceasing when the other is withdrawn:

That James the II. never declared the people of England out of his protection, yet his actions proved it and the parliament declared it:

No delegates then can be denied, or ever want, a power of declaring an existent truth:

That the delegates from the Delaware counties having declared their constituents ready to join, there are only two colonies, Pennsylvania and Maryland, whose delegates are absolutely tied up, and that these had, by their instructions, only reserved a right of confirming or rejecting the measure:

That the instructions from Pennsylvania might be accounted for from the times in which they were drawn, near a twelvemonth ago, since which the face of affairs has totally changed:
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That within that time, it had become apparent that Britain was determined to accept nothing less than a ''carte-blanche,'' and that the King's answer to the Lord Mayor, Aldermen, and Common Council of London, which had come to hand four days ago, must have satisfied every one of this point:

That the people wait for us to lead the way:

That ''they'' are in favour of the measure, though the instructions given by some of their ''representatives'' are not:

That the voice of the representatives is not always consonant with the voice of the people, and that this is remarkably the case in these middle colonies:

That the effect of the resolution of the 15th of May has proved this, which, raising the murmurs of some in the colonies of Pennsylvania and Maryland, called forth the opposing voice of the freer part of the people, and proved them to be the majority even in these colonies:

That the backwardness of these two colonies might be ascribed, partly to the influence of proprietary power and connections, and partly, to their having not yet been attacked by the enemy:

That these causes were not likely to be soon removed, as there seemed no probability that the enemy would make either of these the seat of this summer's war:

That it would be vain to wait either weeks or months for perfect unanimity, since it was impossible that all men should ever become of one sentiment on any question:

That the conduct of some colonies, from the beginning of this contest, had given reason to suspect it was their settled policy to keep in the rear of the confederacy, that their particular prospect might be better, even in the worst event:

That, therefore, it was necessary for those colonies who had thrown themselves forward and hazarded all from the beginning, to come forward now also, and put all again to their own hazard:

That the history of the Dutch revolution, of whom three states only confederated at first, proved that a secession of some colonies would not be so dangerous as some apprehended:

That a declaration of Independence alone could render it consistent with European delicacy, for European powers to treat with us, or even to receive an Ambassador from us:

That till this, they would not receive our vessels into their ports, nor acknowledge the adjudications of our courts of admiralty to be legitimate, in cases of capture of British vessels:

That though France and Spain may be jealous of our rising power, they must think it will be much more formidable with the addition of Great Britain; and will therefore see it their interest
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to prevent a coalition; but should they refuse, we shall be but where we are; whereas without trying, we shall never know whether they will aid us or not:

That the present campaign may be unsuccessful, and therefore we had better propose an alliance while our affairs wear a hopeful aspect:

That to wait the event of this campaign will certainly work delay, because, during this summer, France may assist us effectually, by cutting off those supplies of provisions from England and Ireland, on which the enemy's armies here are to depend; or by setting in motion the great power they have collected in the West Indies, and calling our enemy to the defence of the possessions they have there:

That it would be idle to lose time in settling the terms of alliance, till we had first determined we would enter into alliance:

That it is necessary to lose no time in opening a trade for our people, who will want clothes, and will want money too, for the payment of taxes:

And that the only misfortune is, that we did not enter into alliance with France six months sooner, as, besides opening her ports for the vent of our last year's produce, she might have marched an army into Germany, and prevented the petty princes there, from selling their unhappy subjects to subdue us.

It appearing in the course of these debates, that the colonies of New York, New Jersey, Pennsylvania, Delaware, Maryland, and South Carolina were not yet matured for falling from the parent stem, but that they were fast advancing to that state, it was thought most prudent to wait a while for them, and to postpone the final decision to July 1st: but, that this might occasion as little delay as possible, a committee was appointed to prepare a Declaration of Independence. The committee were John Adams, Dr. Franklin, Roger Sherman, Robert R. Livingston, and myself. Committees were also appointed, at the same time, to prepare a plan of confederation for the colonies, and to state the terms proper to be proposed for foreign alliance. The committee for drawing the Declaration of Independence, desired me to do it. It was accordingly done, and being approved by them, I reported it to the House on Friday, the 28th of June, when it was read and ordered to lie on the table. On Monday, the 1st of July, the House resolved itself into a committee of the whole, and resumed the consideration of the original motion made by the delegates of Virginia, which, being again debated through the day, was carried in the affirmative by the votes of New Hampshire, Connecticut, Massachusetts, Rhode Island, New Jersey, Maryland, Virginia, North Carolina
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and Georgia. South Carolina and Pennsylvania voted against it. Delaware had but two members present, and they were divided. The delegates from New York declared they were for it themselves, and were assured their constituents were for it; but that their instructions having been drawn near a twelvemonth before, when reconciliation was still the general object, they were enjoined by them to do nothing which should impede that object. They therefore thought themselves not justifiable in voting on either side, and asked leave to withdraw from the question; which was given them. The committee rose and reported their resolution to the House. Mr. Edward Rutledge, of South Carolina, then requested the determination might be put off to the next day, as he believed his colleagues, though they disapproved of the resolution, would then join in it for the sake of unanimity. The ultimate question, whether the House would agree to the resolution of the committee, was accordingly postponed to the next day, when it was again moved, and South Carolina concurred in voting for it. In the mean time, a third member had come post from the Delaware counties, and turned the vote of that colony in favor of the resolution. Members of a different sentiment attending that morning from Pennsylvania also, her vote was changed, so that the whole twelve colonies who were authorised to vote at all, gave their voices for it; and, within a few days,* the convention of New York approved of it, and thus supplied the void occasioned by the withdrawing of her delegates from the vote.

Congress proceeded the same day to consider the Declaration of Independence, which had been reported and laid on the table the Friday preceding, and on Monday referred to a committee of the whole. The pusillanimous idea that we had friends in England worth keeping terms with, still haunted the minds of many. For this reason, those passages which conveyed censures on the people of England were struck out, lest they should give them offence. The clause too, reprobating the enslaving the inhabitants of Africa, was struck out in complaisance to South Carolina and Georgia, who had never attempted to restrain the importation of slaves, and who, on the contrary, still wished to continue it. Our northern brethren also, I believe, felt a little tender under those censures; for though their people had very few slaves themselves, yet they had been pretty considerable carriers of them to others. The debates having taken up the greater parts of the 2nd, 3rd, and 4th days of July, were, on the evening of the last, closed; the Declaration was reported by the committee, agreed to by the House, and

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* July 9.
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signed by every member present, except Mr. Dickinson...[.]
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In that one of the bills for organizing ourjudiciary system, which proposed a court of Chancery, I had provided for a trial by jury of all matters of fact, in that as well as in the courts of law. He defeated it by the introduction of four words only, 'if either party choose..' The consequence has been, that as no suitor will say to his judge ' Sir, I distrust you, give me a jury,' juries are rarely, I might say perhaps never, seen in that court, but when called for by the Chancellor of his own accord.

The first establishment in Virginia which became permanent, was made in 1607. I have found no mention of negroes in the colony until about 1650. The first brought here as slaves were by a Dutch ship; after which the English commenced the trade, and continued it until the revolutionary war. That suspended, ipsofacto, their further importation for the present, and the business of the war pressing constantly on the legislature, this subject was not acted on finally until the year '78, when I brought in a bill to prevent their further importation. This passed without opposition, and stopped the increase of the evil by importation, leaving to future efforts its final eradication.

The first settlers of this colony were Englishmen, loyal subjects to their king and church, and the grant to Sir Walter Raleigh contained an express proviso that their laws 'should not be against the true Christian faith, now professed in the church of England.' As soon as the state of the colony admitted, it was divided into parishes, in each of which was established a minister of the Anglican church, endowed with a fixed salary, in tobacco, a glebe house and land, with the other necessary appendages. To meet these expenses, all the inhabitants of the parishes were assessed, whether they were or not, members of the established church. Towards Quakers who came here, they were most cruelly intolerant, driving them from the colony by the severest penalties. In process of time, however, other sectarisms were introduced, chiefly of the Presbyterian family; and the established clergy, secure for life in their glebes and salaries, adding to these, generally, the emoluments of a classical school, found employment enough, in their farms and school rooms, for the rest of the week, and devoted Sunday only to the. edification of their flock, by service, and a sermon at their parish church. Their other pastoral functions were little attended to. Against this inactivity, the zeal and industry of sectarian preachers had an open and undisputed field; and by the time of the revolution, a majority of the inhabitants had become dissenters from the established church, but were still obliged to pay contributions to support the pastors of the minority. This unrighteous compulsion, to maintain teachers of what they deemed religious er-
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rors, was grievously felt during the regal government, and without a hope of relief. But the first republican legislature, which met in '76, was crowded with petitions to abolish this spiritual tyranny. These brought on the severest contests in which I have ever been engaged. Our great opponents were Mr. Pendleton and Robert Carter Nicholas; honest men, but zealous churchmen. The petitions were referred to the committee of the whole house on the state of the country; and, after desperate contests in that committee, almost daily from the 11th of October to the 5th of December, we prevailed so far only, as to repeal the laws which rendered criminal the maintenance of any religious opinions, the forbearance of repairing to church, or the exercise of any mode of worship: and further, to exempt dissenters from contributions to the support of the established church; and to suspend, only until the next session, levies on the members of that church for the salaries of their own incumbents. For although the majority of our citizens were dissenters, as has been observed, a majority of the legislature were churchmen. Among these, however, were some reasonable and liberal men, who enabled us, on some points, to obtain feeble majorities. But our opponents carried, in the general resolutions of the committee of November 19, a declaration that religious assemblies ought to be regulated, and that provision ought to be made for continuing the succession of the clergy, and superintending their conduct. And, in the bill now passed, was inserted an express reservation of the question, Whether a general assessment should not be established by law, on every one, to the support of the pastor of his choice; or whether all should be left to voluntary contributions: and on this question, debated at every session from '76 to '79, (some of our dissenting allies, having now secured their particular object, going over to the advocates of a general assessment,) we could only obtain a suspension from session to session until '79, when the question against a general assessment was finally carried, and the establishment of the Anglican church entirely put down. In justice to the two honest but zealous opponents, who have been named, I must add, that although, from their natural temperaments, they were more disposed generally to acquiesce in things as they are, than to risk innovations, yet whenever the public will had once decided, none were more faithful or exact in their obedience to it.

The seat of our government had been originally fixed in the peninsula of Jamestown, the first settlement of the colonists; and had been afterwards removed a few miles inland to Williamsburg. But this was at a time when our settlements had not extended beyond the tide waters. Now they had crossed the Alleganey; and the
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centre of population was very far removed from what it had been. Yet Williamsburg was still the depository of our archives, the habitual residence of the Governor and many other of the public functionaries, the established place for the sessions of the legislature, and the magazine of our military stores: and its situation was so exposed that it might be taken at any time in war, and, at this time particularly, an enemy might in the night run up either of the rivers, between which it lies, land a force above, and take possession of the place, without the possibility of saving either persons or things. I had proposed its removal so early as October, '7G; but it did not prevail until the session of May, '79.

Early in the session of May, '79, I prepared, and obtained leave to bring in a bill, declaring who should be deemed citizens, asserting the natural right of expatriation, and prescribing the mode of exercising it. This, when I withdrew from the house on the 1st of June following, I left in the hands of George Mason, and it was passed on the 26th of that month.

In giving this account of the laws of which I was myself the mover and draughtsman, I, by no means mean to claim to myself the merit of obtaining their passage. I had many occasional and strenuous coadjutors in debate, and one, most steadfast, able, and zealous; who was himself a host. This was George Mason, a man of the first order of wisdom among those who acted on the theatre of the revolution, of expansive mind, profound judgment, cogent in argument, learned in the lore of our former constitution, and earnest for the republican change on democratic principles. His elocution was neither flowing nor smooth; but his language was strong, his manner most impressive, and strengthened by a dash of biting cynicism, when provocation made it seasonable.

Mr. Wythe, while speaker in the two sessions of 1777, between his return from Congress and his appointment to the Chancery, was an able and constant associate in whatever was before a committee of the whole. His pure integrity, judgment and reasoning powers, gave him great weight. Of him, see more in some notes inclosed in my letter of August 31, 1821, to Mr. John Saunderson.*

Mr. Madison came into the House in 1776, a new member, and young; which circumstances, concurring with his extreme modesty, prevented his venturing himself in debate before his removal to the Council of State, in November '77. From thence he went to Congress, then consisting of few members. Trained in these successive schools, he acquired a habit of self-possession, which placed at ready command the rich resources of his luminous and discrimi-

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[* See [[#Page91|Appendix, note A]].]
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nating mind, and of his extensive information, and rendered him the first of every assembly afterwards, of which he became a member. Never wandering from his subject into vain declamation, but pursuing it closely, in language pure, classical, and copious, soothing always the feelings of his adversaries by civilities and softness of expression, he rose to the eminent station which he held in the great National Convention of 1787; and in that of Virginia which followed, he sustained the new constitution in all its parts, bearing off the palm against the logic of George Mason, and the fervid declamation of Mr. Henry. With these consummate powers, were united a pure and spotless virtue, which no calumny has ever attempted to sully. Of the powers and polish of his pen, and of the wisdom of his administration in the highest office of the nation, I need say nothing. They have spoken, and will for ever speak for themselves.

So far we were proceeding in the details of reformation only; selecting points of legislation, prominent in character and principle, urgent, and indicative of the strength of the general pulse of reformation. When I left Congress in '76, it was in the persuasion that our whole code must be reviewed, adapted to our republican form of government, and, now that we had no negatives of Councils, Governors, and Kings to restrain us from doing right, that it should be corrected, in all its parts, with a single eye to reason, and the good of those for whose government it was framed. Early, therefore, in the session of'76, to which I returned, I moved and presented a bill for the revision of the laws; which was passed on the 24th of October, and on the 5th of November, Mr. Pendleton, Mr. Wythe, George Mason, Thomas L. Lee, and, myself, were appointed a committee to execute the work. We agreed to meet at Fredericksburg to settle the plan of operation, and to distribute the work. We met there accordingly, on the 13th of January, 1777. The first question was, whether we should propose to abolish the whole existing system of laws, and prepare a new and complete Institute, or preserve the general system, and only modify it to the present state of things. Mr. Pendleton, contrary to his usual disposition in favor of ancient things, was for the former proposition, in which he was joined by Mr. Lee. To this it was objected, that to abrogate our whole system would be a bold measure, and probably far beyond the views of the legislature; that they had been in the practice of revising, from time to time, the laws of the colony, omitting the expired, the repealed, and the obsolete, amending only those retained, and probably meant, we should now do the same, only including the British statutes as well as our own: that to compose a new Institute, like those of Jus-
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tinian and Bracton, or that of Blackstone, which was the model proposed by Mr. Pendleton, would bean arduous undertaking, of vast research, of great consideration and judgment; and when reduced to a text, every word of that text, from the imperfection of human language, and its incompetence to express distinctly every shade of idea, would become a subject of question and chicanery, until settled by repeated adjudications; that this would involve us for ages in litigation, and render property uncertain, until, like the statutes of old, every word had been tried and settled by numerous decisions, and by new volumes of reports and commentaries; and that no one of us, probably, would undertake such a work, which, to be systematical, must be the work of one hand. This last was the opinion of Mr. Wythe, Mr. Mason, and myself. When we proceeded to the distribution of the work, Mr. Mason excused himself, as, being no lawyer, he felt himself unqualified for the work, and he resigned soon after. Mr. Lee excused himself on the same ground, and died indeed in a short time. The other two gentlemen, therefore, and myself divided the work among us. The common law and statutes to the 4 James I. (when our separate legislature was established) were assigned tome; the British statutes, from that period to the present day, to Mr. Wythe; and the Virginia laws to Mr. Pendleton. As the law of Descents, and the Criminal law, fell of course within my portion, I wished the committee to settle the leading principles of these, as a guide for me in framing them; and, with respect to the first, I proposed to abolish the law of primogeniture, and to make real estate descendible in parcenary to the next of kin, as personal property is, by the statute of distribution. Mr. Pendleton wished to preserve the right of primogeniture, but seeing at once that that could not prevail, he proposed we should adopt the Hebrew principle, and give a double portion to the elder son. I observed, that if the elder son could eat twice as much, or do double work, it might be a natural evidence of his right to a double portion; but being on a par, in his powers and wants, with his brothers and sisters, he should be on a par also in the partition of the patrimony; and such was the decision of the other members.

On the subject of the Criminal law, all were agreed, that the punishment of death should be abolished, except for treason and murder; and that, for other felonies, should be substituted hard labor in the public works, and in some cases, the ''Lex talionis.'' How this last revolting principle came to obtain our approbation, I do not remember. There remained, indeed, in our laws, a vestige of it in a single case of a slave; it was the English law, in the time of the Anglo-Saxons, copied probably from the Hebrew law of an
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eye for an eye, a tooth for a tooth,' and it was the law of several antient people; but the modern mind had left it far in the rear of its advances. These points, however, being settled, we repaired to our respective homes for the preparation of the work. In the execution of my part, I thought it material not to vary the diction of the antient statutes by modernizing it, nor to give rise to new questions by new expressions. The text of these statutes had been so fully explained and defined, by numerous adjudications, as scarcely ever now to produce a question in our courts. I thought it would be useful, also, in all new draughts, to reform the style of the later British statutes, and of our own acts of Assembly; which, from their verbosity, their endless tautologies, their involutions of case within case, and parenthesis within parenthesis, and their multiplied efforts at certainty, by ''saids'' and ''aforesaids,'' by ''ors'' and by ''ands,'' to make them more plain, are really rendered more perplexed and incomprehensible, not only to common readers, but to the lawyers themselves. We were employed in this work from that time to February, 1779, when we met at Williamsburg, that is to say, Mr. Pendleton, Mr. Wythe, and myself; and meeting day by day, we examined critically our several parts, sentence by sentence, scrutinizing and amending, until we had agreed on the whole. We then returned home, had fair copies made of our several parts, which were reported to the General Assembly, June 18, 1779, by Mr. Wythe and myself, Mr. Pendleton's residence being distant, and he having authorised us by letter to declare his approbation. We had in this work, brought so much of the Common law as it was thought necessary to alter, all the British statutes from ''Magna Charta'' to the present day, and all the laws of Virginia, from the establishment of our legislature, in the 4th Jac. 1. to the present time, which we thought should be retained, within the compass of one hundred and twenty-six bills, making a printed folio of ninety pages only. Some bills were taken out, occasionally, from time to time, and passed; but the main body of the work was not entered on by the legislature, until after the general peace, in 1785, when, by the unwearied exertions of Mr. Madison, in opposition to the endless quibbles, chicaneries, perversions, vexations, and delays of lawyers and demi-lawyers, most of the bills were passed by the legislature, with little alteration.

The bill for establishing religious freedom, the principles of which had, to a certain degree, been enacted before, I had drawn in all the latitude of reason and right. It still met with opposition; but, with some mutilations in the preamble, it was finally passed; and a singular proposition proved that its protection of opinion was
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meant to be universal. Where the preamble declares, that coercion is a departure from the plan of the holy author of our religion, an amendment was proposed, by inserting the words 'Jesus Christ,' so that it should read, 'a departure from the plan of Jesus Christ, the holy author of our religion;' the insertion was rejected by a great majority, in proof that they meant to comprehend, within the mantle of its protection, the Jew and the Gentile, the Christian and Mahometan, the Hindoo, and Infidel of every denomination.

Beccaria, and other writers on crimes and punishments, had satisfied the reasonable world of the unrightfulness and inefficacy of the punishment of crimes by death; and hard labor on roads, canals, and other public works, had been suggested as a proper substitute. The Revisors had adopted these opinions; but the general idea of our country had not yet advanced to that point. The bill, therefore, for proportioning crimes and punishments, was lost in the House of Delegates by a majority of a single vote. I learned afterwards, that the substitute of hard labor in public, was tried (I believe it was in Pennsylvania) without success. Exhibited as a public spectacle, with shaved heads and mean clothing, working on the high roads, produced in the criminals such a prostration of character, such an abandonment of self-respect, as, instead of reforming, plunged them into the most desperate and hardened depravity of morals and character. To pursue the subject of this law.—I was written to in 1785 (being then in Paris) by Directors appointed to superintend the building of a Capitol in Richmond, to advise them as to a plan, and to add to it one of a Prison. Thinking it a favorable opportunity of introducing into the state an example of architecture, in the classic style of antiquity, and the Maison Quarrec of Nismes, an ancient Roman temple, being considered as the most perfect model existing of what may be called Cubic architecture, I applied to M. Clerissault, who had published drawings of the Antiquities of Nismes, to have me a model of the building made in stucco, only changing the order from Corinthian to Ionic, on account of the difficulty of the Corinthian capitals. I yielded, with reluctance, to the taste of Clerissault, in his preference of the modern capital of Scamozzi to the more noble capital of antiquity. This was executed by the artist whom Choiseul Gouffier had carried with him to Constantinople, and employed, while Ambassador there, in making those beautiful models of the remains of Grecian architecture, which are to be seen at Paris. To adapt the exterior to our use, I drew a plan for the interior, with the apartments necessary for legislative, executive, and judiciary purposes; and accommodated in their size and distribution to the form and dimensions of the building. These were forwarded
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to the Directors, in 1786, and were carried into execution, with some variations, not for the better, the most important of which, however, admit of future correction. With respect to the plan of a Prison, requested at the same time, I had heard of a benevolent society, in England, which had been indulged by the government, in an experiment of the effect of labor, in solitary confinement, on some of their criminals; which experiment had succeeded beyond expectation. The same idea had been suggested in France, and an Architect of Lyons had proposed a plan of a well contrived edifice, on the principle of solitary confinement. I procured a copy, and as it was too large for our purposes, I drew one on a scale less extensive, but susceptible of additions as they should be wanting. This I sent to the Directors, instead of a plan of a common prison, in the hope that it would suggest the idea of labor in solitary confinement, instead of that on the public works, which we had adopted in our Revised Code. Its principle, accordingly, but not its exact form, was adopted by Latrobe in carrying the plan into execution, by the erection of what is now called the Penitentiary, built under his direction. In the meanwhile, the public opinion was ripening, by time, by reflection, and by the example of Pennsylvania, where labor on the highways had been tried, without approbation, from 1786 to '89, and had been followed by their Penitentiary system on the principle of confinement and labor, which was proceeding auspiciously. In 1796, our legislature resumed the subject, and passed the law for amending the Penal laws of the commonwealth. They adopted solitary, instead of public, labor, established a gradation in the duration of the confinement, approximated the style of the law more to the modern usage, and, instead of the settled distinctions of murder and manslaughter, preserved in my bill, they introduced the new terms of murder in the first and second degree. Whether these have produced more or fewer questions of definition, I am not sufficiently informed of our judiciary transactions, to say. I will here, however, insert the text of my bill, with the notes I made in the course of my researches into the subject.*

The acts of Assembly concerning the College of William and Mary, were properly within Mr. Pendleton's portion of our work; but these related chiefly to its revenue, while its constitution, organization, and scope of science, were derived from its charter. We thought that on this subject, a systematical plan of general education should be proposed, and I was requested to undertake it. I accordingly prepared three bills for the revisal, proposing three

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* [See [[#Page 119|Appendix, Note E]].]
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distinct grades of education, reaching all classes. 1st. Elementary schools, for all children generally, rich and poor. 2nd. Colleges, for a middle degree of instruction, calculated for the common purposes of life, and such as would be desirable for all who were in easy circumstances. And, 3rd. an ultimate grade for teaching the sciences generally, and in their highest degree. The first bill proposed to layoff every county into Hundreds, or Wards, of a proper size and population for a school, in which reading, writing, and common arithmetic should be taught; and that the whole state should be divided into twenty-four districts, in each of which should be a school for classical learning, grammar, geography, and the higher branches of numerical arithmetic. The second bill proposed to amend the constitution of William and Mary college, -to enlarge its sphere of science, and to make it in fact a University. The third was for the establishment of a library. These bills were not acted on until the same year, '96, and then only so much of the first as provided for elementary schools. The College of William and Mary was an establishment purely of the Church of England; the Visitors were required to be all of that Church; the Professors to subscribe its thirty-nine Articles; its Students to learn its Catechism; and one of its fundamental objects was declared to be, to raise up Ministers for that Church. The religious jealousies, therefore, of all the dissenters, took alarm lest this might give an ascendancy to the Anglican sect, and refused acting on that bill. Its local eccentricity, too, and unhealthy autumnal climate, lessened the general inclination towards it. And in the Elementary bill, they inserted a provision which completely defeated it; for they left it to the court of each county to determine for itself, when this act should be carried into execution, within their county. One provision of the bill was, that the expenses of these schools should be borne by the inhabitants of the county, every one in proportion to his general tax rate. This would throw on wealth the education of the poor; and the justices, being generally of the more wealthy class, were unwilling to incur that burthen, and I believe it was not suffered to commence in a single county. I shall recur again to this subject, towards the close of my story, if I should have life and resolution enough to reach that term; for I am already tired of talking about myself.

The bill on the subject of slaves, was a mere digest of the existing laws respecting them, without any intimation of a plan for a future and general emancipation. It was thought better that this should be kept back, and attempted only by way of amendment, whenever the bill should be brought on. The principles of the amendment, however, were agreed on, that is to say, the freedom
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of all born after a certain day, and deportation at a proper age. But it was found that the public mind would not yet bear the proposition, nor will it bear it even at this day. Yet the day is not distant when it must bear and adopt it, or worse will follow. Nothing is more certainly written in the book of fate, than that these people are to be free; nor is it less certain that the two races, equally free, cannot live in the same government. Nature, habit, opinion, have drawn indelible lines of distinction between them. It is still in our power to direct the process of emancipation and deportation, peaceably, and in such slow degree, as that the evil will wear off insensibly, and their place be, paripassu, filled up by free white laborers. If, on the contrary, it is left to force itself on, human nature must shudder at the prospect held up. We should in vain look for an example in the Spanish deportation or deletion of the Moors. This precedent would fall far short of our case. I considered four of these bills, passed or reported, as forming a system by which every fibre would be eradicated of ancient or future aristocracy; and a foundation laid for a government truly republican. The repeal of the laws of entail would prevent the accumulation and perpetuation of wealth, in select families, and preserve the soil of the country from being daily more and more absorbed in mortmain. The abolition of primogeniture, and equal partition of inheritances, removed the feudal and unnatural distinctions which made one member of every family rich, and all the rest poor, substituting equal partition, the best of all Agrarian laws. The restoration of the rights of conscience relieved the people from taxation for the support of a religion not theirs; for the establishment was truly of the religion of the rich, the dissenting sects being entirely composed of the less wealthy people; and these, by the bill for a general education, would be qualified to understand their rights, to maintain them, and to exercise with intelligence their parts in self-government: and all this would be effected, without the violation of a single natural right of any one individual citizen. To these, too, might be added, as a further security, the introduction of the trial by jury into the Chancery courts, which have already ingulphed, and continue to ingulph, so great a proportion of the jurisdiction over our property.

On the 1st of June, 1779, I was appointed Governor of the Commonwealth, and retired from the legislature. Being elected, also, one of the Visitors of William and Mary college, a self-electing body, I effected, during my residence in Williamsburg that year, a change in the organization of that institution, by abolishing the Grammar school, and the two professorships of Divinity and Oriental languages, and substituting a professorship of Law and Police,
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one of Anatomy, Medicine and Chemistry, and one of Modern languages; and the charter confining us to six professorships, we added the Law of Nature and Nations, and the Fine Arts, to the duties of the Moral professor, and Natural History to those of the professor of Mathematics and Natural Philosophy.

Being now, as it were, identified with the Commonwealth itself, to write my own history, during the two years of my administration, would be to write the public history of that portion of the revolution within this state. This has been done byothers, and particularly by Mr. Girardin, who wrote his Continuation of Burke's History of Virginia, while at Milton, in this neighborhood, had free access to all my papers while composing it, and has given as faithful an account as I could myself. For this portion, therefore, of my own life, I refer altogether to his history. From a belief that, under the pressure of the invasion under which we were then laboring, the public would have more confidence in a Military chief, and that the Military commander, being invested with the Civil power also, both might be wielded with more energy, promptitude and effect for the defence of the state, I resigned the administration at the end of my second year, and General Nelson was appointed to succeed me...[.]
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===Page 91===

:''Main article: [[Jefferson-Sanderson Correspondence]]''

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'''APPENDIX.'''<br /><br />
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<br />
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[NOTE A.]<br />''Letter to John Saunderson, Esq.''
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Monticello, August 31, 1820
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SIR,

Your letter of the 19th was received in due time, and I wish it were in my power to furnish you more fully, than in the enclosed paper, with materials for the biography of George Wythe; but I possess none in writing, am very distant from the place of his birth and early life, and know not a single person in that quarter from whom enquiry could be made, with the expectation of collecting any thing material. Add to this, that feeble health disables me, almost, from writing; and, entirely, from the labor of going into difficult research. 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 death, my most affectionate friend. A close intimacy with him, during that period of forty odd years, the most important of his life, enables me to state its leading facts, which, being of my own knowledge, I vouch their truth. Of what precedes that period, I speak from hearsay only, in which there may be error, but of little account, as the character of the facts will themselves manifest. In the epoch of his biwth I may err a little, stating that from the recollection of a particular incident, the date of which, within a year or two, I do not distinctly remember. These scanty outlines, you will be able, I hope, to fill up from other information, and they may serve you, sometimes, as landmarks to distinguish truth from error, in what you hear from others. 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. But on that you will receive imputation from no man; for, as far as I know, he never had an enemy. Little as I am able to contribute to the just reputation of this excellent man, it is the act of my life most gratifying to my heart: and leaves me only to regret that a waning memory can do no more.
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:''Main article: [[Notes for the Biography of George Wythe]]''

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Of Mr. Hancock I can say nothing, having known him only in the chair of Congress. Having myself been the youngest man, but one, in that body, the disparity of age prevented any particular intimacy. But of him there can be no difficulty in obtaining full information in the North.

I salute you, Sir, with sentiments of great respect.

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TH. JEFFERSON.
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''Notes, for the Biography of George Wythe.''
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George Wythe was born about the year 1727, or 1728, of a respectable family in the county of Elizabeth City, on the shores of the Chesapeake. He inherited, from his father, a fortune sufficient for independence and ease. He had not the benefit of a regular education in the schools, but acquired a good one of himself, and without assistance; insomuch, as to become the best Latin and Greek scholar in the state. It is said, that while reading the Greek Testament, his mother held an English one, to aid him in rendering the Greek text conformably with that. He also acquired, by his own reading, a good knowledge of Mathematics, and of Natural and Moral Philosophy. He engaged in the study of the law under the direction of a Mr. Lewis, of that profession, and went early to the bar of the General Court, then occupied by men of great ability, learning, and dignity in their profession. He soon became eminent among them, and, in process of time, the first at the bar, taking into consideration his superior learning, correct elocution, and logical style of reasoning; for in pleading he never indulged himself with an useless or declamatory thought or word; and became as distinguished by correctness and purity of conduct in his profession, as he was by his industry and fidelity to those who employed him. He was early elected to the House of Representatives, then called the House of Burgesses, and continued in it until the Revolution. On the first dawn of that, instead of higgling on half-way principles, as others did who feared to follow their reason, he took his stand on the solid ground, that the only link of political union between us and Great Britain, was the identity of our Executive; that that nation and its Parliament had no more authority over us, than we had over them, and that we were co-ordinate nations with Great Britain and Hanover.

In 1774, he was a member of a Committee of the House of Burgesses, appointed to prepare a Petition to the King, a Memorial to the House of Lords, and a [[Remonstrance to the House of Commons]], on the subject of the proposed Stamp Act. He was made draughtsman of the last, and, following his own principles, he so
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far overwent the timid hesitations of his colleagues, that his draught was subjected by them to material modifications; and, when the famous Resolutions of Mr. Henry, in 1775, were proposed, it was not on any difference of principle that they were opposed by Wythe, Randolph, Pendleton, Nicholas, Bland, and other worthies, who had long been the habitual leaders of the House; but because those papers of the preceding session had already expressed the same sentiments and assertions of right, and that an answer to them was yet to be expected.

In August, 1775, he was appointed a member of Congress, and in 1776, signed the Declaration of Independence, of which he had, in debate, been an eminent supporter. And subsequently, in the same year, he was appointed, by the Legislature of Virginia, one of a Committee to revise the laws of the state, as well of British, as of Colonial enactment, and to prepare bills for re-enacting them, with such alterations as the change in the form and principles of the government, and other circumstances, required: and of this work, he executed the period commencing with the revolution in England, and ending with the establishment of the new government here; excepting the Acts for regulating descents, for religious freedom, and for proportioning crimes and punishments. In 1777, he was chosen speaker of the House of Delegates, being of distinguished learning in Parliamentary law and proceedings; and towards the end of the same year, he was appointed one of the three Chancellors, to whom that department of the Judiciary was confided, on the first organization of the new government. On a subsequent change of the form of that court, he was appointed sole Chancellor, in which office he continued to act until his death, which happened in June, 1806,about the seventy-eighth or seventy-ninth year of his age.

Mr. Wythe had been twice married; first, I believe, to a daughter of Mr. Lewis, with whom he had studied law, and afterwards, to a Miss Taliaferro, of a wealthy and respectable family, in the neighborhood of Williamsburg; by neither of whom did he leave issue.

No man ever left behind him a character more venerated than George Wythe. 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, without the avarice of the Roman; for a more disinterested person never lived. Temperance and regularity in all his habits, gave him general good health, and his unaffected modesty and suavity of manners, endeared him to every one. He was of easy elocution, his language
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chaste, methodical in the arrangement of his matter, learned and logical in the use of it, and of great urbanity in debate; not quick of apprehension, but, with a little time, profound in penetration, and sound in conclusion. In his philosophy he was firm, and neither troubling, nor perhaps trusting, any one with his religious creed, he left the world to the conclusion, that that religion must be good which could produce a life of exemplary virtue.

His stature was of the middle size, well formed and proportioned, and the features of his face were manly, comely, and engaging. Such was George Wythe, the honor of his own, and the model of future times.
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[NOTE E.]<br />
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Monticello, November 1,1778.
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DEAR SIR,

I have got through the bill 'for proportioning crimes and punishments in cases heretofore capital,' and now enclose it to you with a request that you will be so good, as scrupulously to examine and correct it, that it may be presented to our committee, with as few defects as possible. In its style, I have aimed at accuracy, brevity, and simplicity, preserving, however, the very words of the established law, wherever their meaning had been sanctioned by judicial decisions, or rendered technical by usage. The same matter, if couched in the modern statutory language, with all its tautologies, redundancies, and circumlocutions, would have spread itself over many pages, and been unintelligible to those whom it most concerns. Indeed, I wished to exhibit a sample of reformation in the barbarous style, into which modern statutes have degenerated from their antient simplicity. And I must pray you to be as watchful over what I have not said, as what is said; for the omissions of this bill have all their positive meaning. I have thought it better to drop, in silence, the laws we mean to discontinue, and let them be swept away by the general negative words of this, than to detail them in clauses of express repeal. By the side of the text I have written the notes I made, as I went along, for the benefit of my own memory. They may serve to draw your attention to questions, to which the expressions or the omissions of the text may give rise. The extracts from the Anglo-Saxon laws, the sources
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of the Common law, I wrote in their original, for my own satisfaction;* but I have added Latin, or liberal English translations. From the time of Canute to that of the Magna Charta, you know, the text of our statutes is preserved to us in Latin only, and some old French.

I have strictly observed the scale of punishments settled by the Committee, without being entirely satisfied with it. The ''Lex talionis,'' although a restitution of the Common law, to the simplicity of which we have generally found it so advantageous to return, will be revolting to the humanised feelings of modern times. An eye for an eye, and a hand for a hand, will exhibit spectacles in execution whose moral effect would be questionable; and even the ''membrum pro membro'' of Bracton, or the punishment of the offending member, although long authorised by our law, for the same offence in a slave, has, you know, been not long since repealed, in conformity with public sentiment. This needs reconsideration.

I have heard little of the proceedings of the Assembly, and do not expect to be with you till about the close of the month. In the meantime, present me respectfully to Mrs. Wythe, and accept assurances of the affectionate esteem and respect of, dear Sir, Your friend and servant,

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TH. JEFFERSON.
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George Wythe, Esq.

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[* In this publication, the original Saxon words are given, but, owing to the want of Saxon letter, they are printed in common type.]
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===Page 268===

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LETTER LXXXVI.<br />TO DR. PRICE.
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Paris, August 7, 1785.
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SIR,

Your favor of July the 2nd came duly to hand. The concern you therein express as to the effect of your pamphlet in America, induces me to trouble you with some observations on that subject.

From my acquaintance with that country, I think I am able to judge, with some degree of certainty, of the manner in which it will have been received. Southward of the Chesapeake, it will find but few readers concurring with it in sentiment, on the subject of slavery. From the mouth to the head of the Chesapeake, the bulk of the people will approve it in theory, and it will find a respectable minority ready to adopt it in practice; a minority, which for weight and worth of character, preponderates against the greater number, who have not the courage to divest their families of a property, which,however, keeps their consciences unquiet. Northward of the Chesapeake, you may find, here and there, an opponent to your doctrine, as you may find, here and there, a robber and murderer; but in no greater number. In that part of America, there being but few slaves, they can easily disencumber
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===Page 269===

<blockquote>
themselves of them; and emancipation is put into such a train, that in a few years there will be no slaves northward of Maryland. In Maryland, I do not find such a disposition to begin the redress of this enormity, as in Virginia. This is the next State to which we may turn our eyes for the interesting spectacle of justice, in conflict with avarice and oppression: a conflict wherein the sacred side is gaining daily recruits, from the influx into office of young men grown, and growing up. These have sucked in the principles of liberty, as it were, with their mother's milk; and it is to them I look with anxiety to turn the fate of this question. Be not therefore discouraged. What you have written will do a great deal of good: and could you still trouble yourself with our welfare, no man is more able to give aid to the laboring side. The College of William and Mary in Williamsburg, since the re-modelling of its plan, is the place where are collected together all the young men of Virginia, under preparation for public life. They are there under the direction (most of them) of a Mr. Wythe, one of the most virtuous of characters, and whose sentiments on the subject of slavery are unequivocal. I am satisfied, if you could resolve to address an exhortation to those young men, with all that eloquence of which you are master, that its influence on the future decision of this important question would be great, perhaps decisive. Thus you see, that, so far from thinking you have cause to repent of what you have done, I wish you to do more, and wish it, on an assurance of its effect. The information I have received from America, of the reception of your pamphlet in the different States, agrees with the expectations I had formed.

Our country is getting into a ferment against yours, or rather has caught it from yours. God knows how this will end; but assuredly in one extreme or the other. There can be no medium between those who have loved so much. I think the decision is in your power as yet, but will not be so long.

I pray you to be assured of the sincerity of the esteem and respect, with which I have the honor to be, Sir,

<div align="right">
your most obedient,

humble servant,

TH. JEFFERSON.
</div>
</blockquote>

===Page 328===

<blockquote>
<center>
LETTER CXVIII.<br />TO JAMES MADISON, ''of William and Mary College.''
</center>

<div align="right">
Paris, October 2, 1785.
</div>

DEAR SIR,

I have duly received your favor of April the 10th, by Mr. Mazzei. You therein speak of a new method of raising water by steam, which you suppose will come into general use. I know of no new method of that kind, and suppose (as you say that the account you have received of it is very imperfect) that some person has represented to you, as new, a fire-engine erected at Paris, and which supplies the greater part of the town with water. But this is nothing more than the fire-engine you have seen described in the books of hydraulics, and particularly in the Dictionary of Arts and Sciences, published in 8vo, by Owen, the idea of which was first taken from Papin's Digester. It would have been better called the steam-engine. The force of the steam of water, you
</blockquote>

===Page 329===

<blockquote>
know, is immense. In this engine, it is made to exert itself towards the working of pumps. That of Paris, is, I believe, the largest known, raising four hundred thousand cubic feet (French) of water, in twenty-four hours: or rather, I should have said, those of Paris, for there are two under one roof, each raising that quantity.

The Abbe Rochon not living at Paris, I have not had an opportunity of seeing him, and of asking him the questions you desire, relative to the crystal of which I wrote you. I shall avail myself of the earliest opportunity I can, of doing it. I shall cheerfully execute your commands as to the Encyclopedic, when I receive them. The price will be only thirty guineas. About half the work is out. The volumes of your Buffon, whch are spoiled, can be replaced here.

I expect that this letter will be carried by the Mr. Fitzhughs, in a ship from Havre to Portsmouth. I have therefore sent to Havre, some books which I expected would be acceptable to you. These are (he Biblioihique Physico-ceconomique, which will give you most of the late improvements in the arts; the Connoissance des Terns for 1786 and 1787, which is as late as they are published; and some pieces on air and fire, wherein you will find all the discoveries hitherto made on these subjects. These books are made into a packet, with your address on them, and are put into a trunk wherein is a small packet for Mr. Wythe, another for Mr. Page, and a parcel of books, without direction, for Peter Carr. I have taken the liberty of directing the trunk to you, as the surest means of its getting safe. I pay the freight of it here, so that there will be no new demands, but for the transportation from the ship's side to Williamsburg, which I will pray you to pay; and as much the greatest part is for my nephew, I will take care to repay it to you.

In the last volume of the Connoissance des Tents, you will find the tables for the planet Herschel. It is a curious circumstance, that this planet was seen thirty years ago by Mayer, and supposed by him to be a fixed star. He accordingly determined a place for it, in his catalogue of the zodiacal stars, making it the 964th of that catalogue. Bode, of Berlin, observed in 1781, that this star was missing. Subsequent calculations of the motion of the planet Herschel show, that it must have been, at the time of Mayer's observation, where he had placed his 964th star.

Herschel has pushed his discoveries of double stars, now, to upwards of nine hundred, being twice the number of those communicated in the Philosophical Transactions. You have probably seen, that a Mr. Pigott had discovered periodical variations of light in the star Algol. He has observed the same in the ij of Antinous, and makes the period of variation seven days, four hours, and
</blockquote>

===Page 330===

<blockquote>
thirty minutes, the duration of the increase sixty-three hours, and of the decrease thirty-six hours. What are we to conclude from this? That there are suns which have their orbits of revolution too? But this would suppose a wonderful harmony in their planets, and present a new scene, where the attracting powers should be without, and not within the orbit. The motion of our sun would be a miniature of this. But this must be left to you astronomers.

I went some time ago, to see a machine which offers something new. A man had applied to a light boat, a very large screw, the thread of which was a thin plate, two feet broad, applied by its edge spirally round a small axis. It somewhat resembled a bottle-brush, if you will suppose the hairs of the bottle-brush joining together, and forming a spiral plane. This, turned on its axis in the air, carried the vessel across the Seine. It is, in fact, a screw which takes hold of the air and draws itself along by it: losing, indeed, much of its effort by the yielding nature of the body it lays hold of, to pull itself on by. I think it may be applied in the water, with much greater effect, and to very useful purposes. Perhaps it may be used also for the balloon.

It is impossible but you must have heard long ago, of the machine for copying letters at a single stroke, as we had received it in America before I left there. I have written a long letter to my nephew, in whose education I feel myself extremely interested. I shall rely much on your friendship for conducting him in the plan I mark out for him, and for guarding him against those shoals, on which youth sometimes shipwreck. I trouble you to present to Mr. Wythe my affectionate remembrance of him, and am, with very great esteem, Dear Sir,

<div align="right">
your friend and servant,

TH: JEFFERSON.
</div>
</blockquote>

===Page 345===

<blockquote>
<center>
LETTER CXXVIII.<br />TO J. BANNISTER, JUNIOR.
</center>

<div align="right">
Paris, October 15, 1785.
</div>

DEAR SIR,

I should sooner have answered the paragraph in your letter, of September the 19th, respecting the best seminary for the education of youth, in Europe, but that it was necessary for me to make inquiries on the subject. The result of these has been, to consider the competition as resting between Geneva and Rome. They are equally cheap, and probably are equal in the course of education pursued. The advantage of Geneva, is, that students acquire there the habit of speaking French. The advantages of Rome, are, the acquiring a local knowledge of a spot so classical and so celebrated; the acquiring the true pronunciation of the Latin language; a just taste in the fine arts, more particularly those of painting, sculpture, architecture, and music; a familiarity with those objects and processes of agriculture, which experience has shewn best adapted to a climate like ours; and lastly, the advantage of a fine climate for health. It is probable, too, that by being boarded in a French family, the habit of speaking that language may be obtained. I do not count on any advantage to be derived in Geneva, from a familiar acquaintance with the principles of that government. The late revolution has rendered it a tyrannical aristocracy, more likely to give ill, than good ideas to an American. I think the balance in favor of Rome. Pisa is sometimes spoken of, as a place of education. But it does not
</blockquote>

===Page 346===

<blockquote>
offer the first and third of the advantages of Rome. But why send an American youth to Europe for education? What are the objects of an useful American education? Classical knowledge, modern languages, chiefly French, Spanish and Italian; Mathematics, Natural philosophy, Natural history, Civil history, and Ethics. In Natural philosophy, I mean to include Chemistry and Agriculture, and in Natural history, to include Botany, as well as the other branches of those departments. It is true that the habit of speaking the modern languages, cannot be so well acquired in America; but every other article can be as well acquired at William and Mary college, as at any place in Europe. When college education is done with, and a young man is to prepare himself for public life, he must cast his eyes (for America) either on Law or Physic. For the former, where can he apply so advantageously as to Mr. Wythe? For the latter, he must come to Europe: the medical class of students, therefore, is the only one which need come to Europe. Let us view the disadvantages of sending a youth to Europe. To enumerate them all, would require a volume. I will select a few. If he goes to England, he learns drinking, horse-racing, and boxing. These are the peculiarities of English education. The following circumstances are common to education in that, and the other countries of Europe. He acquires a fondness for European luxury and dissipation, and a contempt for the simplicity of his own country; he is fascinated with the privileges of the European aristocrats, and sees, with abhorrence, the lovely equality which the poor enjoy with the rich, in his own country; he contracts a partiality for aristocracy or monarchy; he forms foreign friendships which will never be useful to him, and loses the season of life for forming in his own country, those friendships, which, of all others, are the most faithful and permanent; he is led by the strongest of all the human passions, into a spirit for female intrigue, destructive of his own and others' happiness, or a passion for whores, destructive of his health, and, in both cases, learns to consider fidelity to the marriage bed as an ungentlemanly practice, and inconsistent with happiness; he recollects the voluptuary dress and arts of the European women, and pities and despises the chaste affections and simplicity of those of his own country; he retains, through life, a fond recollection, and a hankering after those places, which were the scenes of his first pleasures and of his first connections; he returns to his own country, a foreigner, unacquainted with the practices of domestic economy, necessary to preserve him from ruin, speaking and writing his native tongue as a foreigner, and therefore unqualified to obtain those distinctions, which eloquence of the pen and tongue
</blockquote>

===Page 347===

<blockquote>
ensures in a free country; for I would observe to you, that what is called style in writing or speaking, is formed very early in life, while the imagination is warm, and impressions are permanent. I am of opinion, that there never was an instance of a man's writing or speaking his native tongue with elegance, who passed from fifteen to twenty years of age, out of the country where it was spoken. Thus, no instance exists of a person's writing two languages perfectly. That will always appear to be his native language, which was most familiar to him in his youth. It appears to me then, that an American coming to Europe for education, loses in his knowledge, in his morals, in his health, in his habits, and in his happiness. I had entertained only doubts on this head, before I came to Europe: what I see and hear, since I came here, proves more than I had even suspected. Cast your eye over America: who are the men of most learning, of most eloquence, most beloved by their countrymen, and most trusted and promoted by them? They are those who have been educated among them, and whose manners, morals and habits, are perfectly homogeneous with those of the country.

Did you expect by so short a question, to draw such a sermon on yourself? I dare say you did not. But the consequences of foreign education are alarming to me, as an American. I sin, therefore, through zeal, whenever I enter on the subject. You are sufficiently American to pardon me for it. Let me hear of your health, and be assured of the esteem with which I am, Dear Sir,

<div align="right">
your friend and servant,

TH. JEFFERSON.
</div>
</blockquote>

===Page 405===

<blockquote>
[The succeeding observations were made by Mr. Jefferson on an article entitled 'Etats Unis,' prepared for the ''Encyclopedic Methodique,'' and submitted to him before its publication.]
</blockquote>

===Page 426===

<blockquote>
<center>
<hr width="50" />
</center>

Mr. Jefferson presents his compliments to M. de Meusnier,<ref>Jean Nicolas Démeunier</ref> and sends him copies of the thirteenth, twenty-third, and twenty-fourth articles of the treaty between the King of Prussia and the United States.

If M. de Meusnier proposes to mention the facts of cruelty, of which he and Mr. Jefferson spoke yesterday, the twenty-fourth article will introduce them properly, because they produced a sense of the necessity of that article. These facts are, 1. The death of upwards of eleven thousand American prisoners, in one prison-ship (the Jersey,) and in the space of three years. 2. General Howe's permitting our prisoners, taken at the battle of Germantown, and placed under a guard, in the yard of the State-house of Philadelphia, to be so long without any food furnished them, that many perished with hunger. Where the bodies laid, it was seen that they had eaten all the grass around them, within
</blockquote>

===Page 427===

<blockquote>
their reach, after they had lost the power of rising, or moving from their place. 3. The second fact was the act of a commanding officer: the first, of several commanding officers, and, for so long a time, as must suppose the approbation of government. But the following was the act of government itself. During the periods that our affairs seemed unfavorable, and theirs successful, that is to say, after the evacuation of New York, and again after the taking of Charleston, in South Carolina, they regularly sent our prisoners, taken on the seas and carried to England, to the East Indies. This is so certain, that in the month of November or December, 1785, Mr. Adams having officially demanded a delivery of the American prisoners sent to the East Indies, Lord Caermarthen answered, officially, 'that orders were immediately issued for their discharge.' M. de Meusnier is at liberty to quote this fact. 4. A fact, to be ascribed not only to the government, but to the parliament, who passed an act for that purpose, in the beginning of the war, was the obliging our prisoners, taken at sea, to join them, and fight against their countrymen. This they effected by starving and whipping them. The insult on Captain Stanhope, which happened at Boston last year, was a consequence of this. Two persons, Dunbar and Lowthorp, whom Stanhope had treated in this manner, (having particularly inflicted twenty-four lashes on Dunbar) meeting him at Boston, attempted to beat him. But the people interposed, and saved him. The fact is referred to in that paragraph of the Declaration of Independence, which says, 'He has constrained our fellow citizens, taken captive on the high seas, to bear arms against their country, to become the executioners of their friends and brethren, or to fall themselves by their hands.' This was the most afflicting to our prisoners, of all the cruelties exercised on them. The others affected the body only, but this the mind; they were haunted by the horror of having, perhaps, themselves shot the ball by which a father or a brother fell. Some of them had constancy enough, to hold out against half-allowance of food, and repeated whippings. These were generally sent to England, and from thence to the East Indies. One of them escaped from the East Indies, and got back to Paris, where he gave an account of his sufferings to Mr. Adams, who happened to be then at Paris.

M. de Meusnier, where he mentions that the slave-law has been passed in Virginia, without the clause of emancipation, is pleased to mention, that neither Mr. Wythe, nor Mr. Jefferson was present, to make the proposition they had meditated; from which, people, who do not give themselves the trouble to reflect or inquire, might conclude, hastily, that their absence was the cause
</blockquote>

===Page 428===

<blockquote>
why the proposition was not made; and, of course, that there were not, in the Assembly, persons of virtue and firmness enough, to propose the clause for emancipation. This supposition would not be true. There were persons there, who wanted neither the virtue to propose, nor talents to enforce the proposition, had they seen that the disposition of the legislature was ripe for it. These worthy characters would feel themselves wounded, degraded, and discouraged by this idea. Mr. Jefferson would therefore be obliged to M. de Meusnier, to mention it in some such manner as this. 'Of the two commissioners, who had concerted the amendatory clause for the gradual emancipation of slaves, Mr. Wythe could not be present, he being a member of the judiciary department, and Mr. Jefferson was absent on the legation to France. But there were not wanting in that Assembly, men of virtue enough to propose, and talents to vindicate this clause. But they saw, that the moment of doing it with success, was not yet arrived, and that an unsuccessful effort, as too often happens, would only rivet still closer the chains of bondage, and retard the moment of delivery to this oppressed description of men. What a stupendous, what an incomprehensible machine is man! who can endure toil, famine, stripes, imprisonment, and death itself, in vindication of his own liberty, and, the next moment, be deaf to all those motives whose power supported him through his trial, and inflict on his fellow men a bondage, one hour of which is fraught with more misery, than ages of that which he rose in rebellion to oppose. But we must await, with patience, the workings of an overruling Providence, and hope that that is preparing the deliverance of these, our suffering brethren. When the measure of their tears shall be full, when their groans shall have involved heaven itself in darkness, doubtless, a God of justice will awaken to their distress, and by diffusing light and liberality among their oppressors, or, at length, by his exterminating thunder, manifest his attention to the things of this world, and that they are not left to the guidance of a blind fatality.'
</blockquote>

==See also==

*[[Jefferson-Sanderson Correspondence]]
*[[Memoir of the Author]]
*[[Notes for the Biography of George Wythe]]

==References==
<references/>

==External links==

* Read this book in [http://books.google.com/books?id=Jlg6AAAAcAAJ&printsec=frontcover Google Books.]
* [http://founders.archives.gov/documents/Jefferson/01-10-02-0001-0006 "V. To Jean Nicolas Démeunier, 26 June 1786,"] Founders Online, National Archives.

[[Category:Biographies]]
[[Category:Letters to Wythe]]

Biography of the Signers to the Declaration of Independence

2015-02-20T14:18:06Z

Jamorris01: /* Page 169 */

{{DISPLAYTITLE:''Biography of the Signers to the Declaration of Independence''}}
[[File:Longacre1823Wythe.jpg|thumb|right|350px|Illustration from John Sanderson's ''Biography of the Signers to the Declaration of Independence,'' Vol. 2 (Philadelphia: R.W. Pomeroy, 1823). "Drawn and Engraved, by J.B. Longacre, from a Portrait in the [[American Gleaner]]."]]
In 1820, [[wikipedia:John P. Sanderson|John Sanderson]] wrote to Thomas Jefferson to [[Jefferson-Sanderson Correspondence|"request... some notice of Mr. Geo. Wythe,"]] for a chapter in ''Biography of the Signers to the Declaration of Independence''<ref>William R. Smith, "George Wythe," in ''Biography of the Signers to the Declaration of Independence,'' ed. John Sanderson (Philadelphia: R.W. Pomeroy, 1823) 2:161-184. Reprinted in Robert T. Conrad, ed. ''Sanderson's Biographies of the Signers to the Declaration of Independence,'' (Philadelphia: William Brotherhead, 1865), 633-644; and in James Tyson, ed., ''An Outline of the Political and Social Life of George Washington, and Biographical Sketches of the Lives of the Fifty-six Signers of the Declaration of Independence'' (Oakland, CA: Pacific Press, 1895), 2:196-212.</ref>—a project which would eventually fill nine volumes, edited by Sanderson, Robert Wain, Jr., and Henry D. Gilpin.


Sanderson tasked William R. Smith with writing Wythe's chapter for volume two of ''Biography of the Signers.''<ref>Smith to John W. Forney, November 20, 1860, and Smith to John A. McAllister, November 20, 1860, John A. Mcallister Collection, Library Company of Philadelphia. Cited in William Edwin Hemphill, ''George Wythe the Colonial Briton: A Biographical Study of the Pre-Revolutionary Era in Virginia'' (PhD diss., University of Virginia, 1937), 44n2. See also Smith, [[http://www.flickr.com/photos/wolflawlibrary/12932582975/ letter to the editor]], Philadelphia ''Weekly Press'' (1860).</ref> According to Smith, he was supplied with [[Notes for the Biography of George Wythe|Jefferson's notes]], and a "biographical notice of Wythe" from a "magazine of that day,"<ref>Smith says the notice was "published (I think) in a Baltimore magazine," but Hemphill believes it was probably the [[American Biographical and Historical Dictionary|''American Law Journal.'']] ''George Wythe the Colonial Briton,'' 44n2.</ref> and from these he framed his life of George Wythe. Jefferson states that Wythe "engaged in the study of the law under the direction of a Mr. Lewis," and Smith here has chosen John Lewis, rather than his father, Zachary. Smith unfortunately repeats the idea (probably from the "magazine" article) that from the age of twenty, Wythe abandoned "all useful study, and spent his whole time in idle amusements and dissipation" for ten years, and did not begin to practice law until the age of thirty. These statements are easily disproved by court records from this time,<ref>Leon M. Bazile, "Discourse Refuting Statements Made That George Wythe at One Time Led a Life of Dissipation," manuscript, [http://vhs4.vahistorical.org/starweb/vhs/servlet.starweb?path=vhs/vhs.web Virginia Historical Society Library], Mss7:1 W9974:1.</ref> as Wythe is recorded representing clients in court between 1747 and 1748 for no fewer than 54 cases in Orange Co., Virginia, alone.<ref>Hemphill, ''George Wythe,'' 47n2.</ref>

==Chapter text, "GEORGE WYTHE"==
===Page 161===

<blockquote>
<center>
'''WYTHE.'''
</center>
<br />

The following account of Mr. Wythe is much less circumstantial than is required by the dignity of the subject. The most important actions of his public life, are so blended with the general history of the country, and his name so conjoined with the other patriots of the revolution, as to admit very little distinct or particular detail. Of his private and domestic transactions, he has left himself no remembrance, and his friends, by whose aid we hoped to supply the deficiency, appear to have postponed this principal object, to indulge in expressions of affection for his memory, and have furnished us rather a panegyric than a history of his life. We shall endeavour, however, from the few materials within our reach, to exhibit such a general view of his character as, we hope, will not be unacceptable to our readers.
</blockquote>

===Page 162===

<blockquote>
GEORGE WYTHE was born in the year 1726, in the county of Elizabeth City on the shores of the Chesapeake, in the then colony of Virginia. He was descended from a respectable family, and inherited from his father, who was a farmer, an estate amply sufficient for all the purposes of ease and independence. His mother was a woman of great strength of mind, and of singular learning; amongst other acquirements she possessed an accurate knowledge of the Latin language, and under her tuition he received the rudiments of his education.

The instructions which he received at school, by some unaccountable negligence, were extremely limited; being confined to mere reading and writing the English language, with a very superficial knowledge of arithmetic. But his powerful mind, exerting its own efforts, soon supplied his defect of scholastic education; for, with the sole assistance afforded by his mother, he became one of the most accomplished Latin and Greek scholars of his country; and by his unaided exertions attained a very honourable proficiency in other branches of learning. To grammar, rhetoric and logic, which he is said to have studied with great success, he added, at an early age, an extensive acquaintance with
</blockquote>

===Page 163===

<blockquote>
civil law; a profound knowledge of mathematics, as well as of natural and moral philosophy.

Of these various attainments, so honourable to his industry and genius, much of the merit, no doubt very justly, is ascribed to the affectionate and tender zeal of his mother: it is related that she not only taught him the Latin, but assisted also his acquisition of the Greek, though altogether unacquainted with that language; uniting for this purpose, in his studies, and by inspecting an English version of the works which he read, enabling herself to aid his progress and to ascertain the accuracy of his translations.

Of this excellent mother, he was bereaved during his minority. He lost also, near the same time, his father, of whom there is given a very amiable character, for simplicity and candour of behaviour, parental tenderness, and for prudence in the management of his fortune. Being thus in the possession of money and exposed, in the luxuriance of youthful passions, to the seductions of pleasure, he suspended during several years, all useful study, and spent his whole time in idle amusements and dissipation.<ref>Wythe's time spent in "dissipation" is refuted. See Bazile, "Discourse."</ref> But to whatever levities he may have been betrayed, it is evident from the subsequent events of his life, that his principles of honour remained uncorrupted. When he had attained his
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===Page 164===

<blockquote>
thirtieth year, he shook off all these youthful follies and employed himself in the most indefatigable study; and from this period till the close of his life, protracted to the length of eighty years, lived in the practice of the most rigid and inflexible-virtue.

To his friends he often expressed the deepest regret that so many years of time had thus been irretrievably lost to him; and when we reflect on the many splendid monuments of his wisdom, and patriotic devotion to the best interest of his country, which have given him an imperishable name in her records, an instructive lesson may be drawn from his generous repentance. No man ever stood higher in the estimation of his countrymen; and no one better merited this distinction; yet after fifty years had been spent in the exercise of all that is noble in man, the venerable patriot still sighed over the short period of youthful aberration, as so much valuable time unemployed in conferring benefits on his country and on mankind.

He studied the profession of the law under the direction of Mr. John Lewis, an eminent practitioner;<ref>Wythe studied law under his uncle, Stephen Dewey, of Prince George County, Virginia; he began the practice of law with Zachary Lewis of Spotsvylvania Co., father of John Lewis.</ref> and at an early period was called to the bar of the general court, then filled by men of great eminence and ability in their profession. For a short time he continued their equal, but by reason of his extensive learning, correctness of elocution, and
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===Page 165===

<blockquote>
his logical style of argument, he quickly arrived at the head of the bar.

As a lawyer, the character of Wythe bears the severest scrutiny. In his hands the dignity of the profession was never prostrated to the support of an unjust cause: in this he was so scrupulous, that where doubts were entertained of the truth of his clients' statements, he even required the solemnity of an oath previous to his defence; and if deception was in any manner practised upon him, the fee was returned, and the cause abandoned. Such disinterestedness procured him universal esteem; and as he was no less distinguished by correctness and purity of conduct in his profession, than by his great learning, and his industry and fidelity to those who employed him, promotion succeeded confidence, and on the organization of the new government, he was invested with the most considerable judicial rank which his country could bestow upon him. As chancellor of Virginia, he continued to dispense the most exact justice until the day of his death.

Early in life he was elected to represent his native county in the house of burgesses; of which he continued a member until the dawn of the revolution. His cotemporaries in the house, were men of the highest standing in Virginia for rank and talent; and in the memorable year of 1764, when the re-
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===Page 166===

<blockquote>
solutions of the British parliament preparatory to the passage of the stamp act, were communicated to the house of burgesses, he found himself called upon to act with such worthies as Robert C. Nicholas, Edmond Pendleton, Richard Bland, Peyton Randolph, Richard Henry Lee and Benjamin Harrison. And his holding a prominent station amongst these most celebrated names of our country, is no equivocal evidence of his abilities and merits.

On the 14th of November 1764, he was appointed a member of a committee of the house of burgesses to prepare and report a petition to the king; a memorial to the house of lords, and a [[Remonstrance to the House of Commons|remonstrance to the House of commons]], on the subject of the proposed stamp act. The latter paper was drawn up by Wythe, and following his own principles, his language was that of boldness and truth; going far beyond the timid hesitations of his colleagues, who viewed it as bordering on treason, consequently his draft was subjected to many material modifications. These documents were reported on the 18th of December, and after much warm debate and considerable amendments tending to soften the asperity of complaint, received the concurrence of council.

From the general tenor of these papers, it is obvious that revolutionary opposition to the regal government, was not then intended. For, although
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===Page 167===

<blockquote>
the rights of the colony, so far as they respected exemption from taxation, except by her own representatives, are firmly set forth and insisted on; yet the language is supplicatory, and the miseries about to be inflicted on an impoverished community by the excessive weight of the projected law, are feelingly anticipated. Remonstrance alone was intended, and the colonies looked with anxiety to the parent country for favourable replies to most dutiful petitions; but remonstrance was ineffectual, and in January 1765, the stamp act was passed, to have operation from the first of November following. The promulgation of this law, soon diffused a spirit of discontent and opposition through America, and brought the abilities of her patriots and heroes into more conspicuous notice.

In Virginia the house of burgesses had received an extraordinary acquisition in the person of one of its young members, the celebrated Patrick Henry; who, from comparative obscurity, was ultimately thrice raised to the highest dignity of the commonwealth, by the unanimous voice of his countrymen. Henry was one of the most fascinating orators of modern times: his patriotism like that of most of his associates in public life, was of the purest kind; and in consequence of his great exertions in the house of burgesses; by the marked intrepidity of his
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===Page 168===

<blockquote>
conduct; by the fire of his matchless eloquence, the American revolution presented its first determined front, in the boldest opposition, to the hateful law.

A few days previous to the close of the session, in May 1765, the following resolutions were offered to the consideration of the house by Mr. Henry.

"Resolved.—That the first adventurers and settlers of this, his majesty's colony and dominion, brought with them, and transmitted to their posterity, and all other his majesty's subjects, since inhabiting in this his majesty's said colony, all the privileges, franchises, and immunities, that have at any time been held, enjoyed and possessed, by the people of Great Britain.

"That by two royal charters granted by king James the first, the colonists aforesaid are declared entitled to all the privileges and immunities of denizens and natural born subjects to all intents and purposes, as if they had been abiding and born within the realm of England.

"That the taxation of the people by themselves, or by persons chosen by themselves to represent them, who can only know what taxes the people are able to bear, and the easiest mode of raising them, is the distinguishing characteristic of British freedom, and without which the ancient constitution cannot subsist,
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===Page 169===

<blockquote>
"That his majesty's liege people of this most ancient colony, have uninterruptedly enjoyed the right of being thus governed by their own assembly in the article of their taxes and internal police; and that the same hath never been forfeited, or any other way given up, but hath been constantly recognized by the king and people of Great Britain.

"Resolved therefore, that the general assembly of this colony have the sole right and power to lay taxes and impositions upon the inhabitants of this colony: and that any attempt to vest such power in any person or persons whatsoever, other than the general assembly aforesaid, has a manifest tendency to destroy British as well as American freedom."

These resolutions created an extraordinary alarm in the house, and the most violent debates ensued. Not only were they opposed by the advocates of the measures of the royal government, and by the aristocracy of the state, but even some of the warmest friends of American independence endeavoured to prevent their adoption. Among the latter we find Nicholas, Pendleton, Randolph, Bland and Wythe, who had long been the habitual leaders of the house. Their opposition was, however, not founded on any difference of principle, but because the [[Remonstrance to the House of Commons|petition, memorial and remonstrance]] of the pre-
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===Page 170===

<blockquote>
ceding session, had already expressed the same sentiments, and made the same assertions of right; and answers to those documents were yet to be expected. Notwithstanding the daring language of the resolutions; the opposition of the ministerial party in the house; and the dread of the best friends of our liberties, of plunging the colony unprepared, feeble, and without defence, into hostility with Great Britain, the bold and sublime eloquence of Henry achieved a victory. The resolutions were all adopted after some immaterial alterations in each of them; but the fifth, and strongest, was passed by a majority of a single vote. Henry did not attend the sitting of the following day, and then, the alarm of a majority of burgesses, caused them by a timid vote to expunge the fifth resolution from the journals.

The repeal of the stamp act in 1766, in a great degree revived the affection of the colonists for the mother country; but the subsequent passage of the statute, commonly termed the glass, paper and tea act; the statute restricting the powers of the New York legislature; and the statute erecting courts of vice admiralty on new models, soon afterwards excited anew their apprehensions and inflamed their discontents; and during the session of 1768, Wythe was a member of the house of burgesses, in which
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===Page 171===

<blockquote>
he held a prominent station, when the famous resolutions were adopted by which Virginia asserted in determined language her exclusive right of taxation in all cases whatsoever; complained of the violation of the British constitution by recent acts of parliament; and firmly remonstrated against the oppression of holding trials in England, on persons, for offences committed in the colonies.

These resolutions breathing the full spirit of patriotism, were hurried through the house without regard to the established form of parliamentary proceedings, lest the assembly should be dissolved by the governor, on the first intimation which he might receive of their proposed acts. In fact, lord Bottetourt heard of the resolutions late in the evening; in vain endeavoured to procure a copy of them from the clerk, and on the next day dissolved the house of burgesses; but not until the records were entered on the journals: the members having very early in the morning convened for that purpose, in correct anticipation of their immediate dispersion.

The resolution of the house, did not produce any effect favourable to the royal cause. The same members, without any exception were returned, and the spirit of resistance, increased in strength. Wythe, as a member of the house, was bold and determined in the position he had taken. On the
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===Page 172===

<blockquote>
one hand, the liberties of his country were threatened; and on the other, his character, nay, his life itself was placed in danger. But no human consideration was equivalent to his love of liberty and fidelity to his country. He stood on the solid ground, that the only link of political union between the colonies and Great Britain, was the identity of the executive: that the parent country and its parliament, had no more authority over the colonies, than the colonies over them: and that the colonies were co-ordinate nations with Great Britain and Hanover.

Thomas Jefferson had been the pupil of Wythe, and under his auspices was introduced to the bar. The sentiments of the friend and counsellor, which were instilled by instruction and example, were exhibited to the world in the "Summary View of the rights of British America;" and now in the same venerable public body, the preceptor and pupil stood forth as vindicators of the rights and privileges of their injured countrymen, and as undeviating advocates of that system of government, which has since been so happily established.

From this time until the years 1775, Wythe continued his unabated exertions in favour of independence. On the first rising of the colonists, he joined a corps of volunteers, and evinced his
</blockquote>

===Page 173===

<blockquote>
promptness to support the cause which he had advocated in the senate, by a resort to arms in the field. But his country, at this important period, required the united talents of her ablest statesmen; and in August 1775, he was appointed one of the delegates from his native state, to that congress, which in the succeeding year, declared the Independence of America.

In consequence of this great change in the form of government, and in order to strengthen and confirm the principles of the revolution, the house of assembly of Virginia, by a resolution of the fifth of November 1776, appointed Thomas Jefferson, Edmond Pendleton, George Wythe, George Mason and Thomas Ludwell Lee, a committee to revise the laws of the state, as well of British as of colonial enactment, and to prepare bills for re-enacting them, with such alterations as the change in the form and principles of the government, and other circumstances required. The two last named gentlemen did not act with the committee, owing to the death of one, and the resignation of the other. But so industrious were Jefferson, Pendleton and Wythe, in this great work of legislation, that on the 18th of June, 1779, one hundred and twenty-six bills were prepared and reported to the general assembly.
</blockquote>

===Page 174===

<blockquote>
The common law of England is preserved as the basis of the revised code. To use the language of one of the committee,* the most remarkable alterations proposed, were,

"To change the rules of descent, so as that the lands of any person dying intestate, shall be divisible equally among all his children, or other representatives, in equal degree.

"To make slaves distributable among the next of-kin, as other moveables.

"To have all public expenses, whether of the general treasury, or of a parish or county (as for the maintenance of the poor, building bridges, court houses, &c.) supplied by assessments on the citizens in proportion to their property.

"To hire undertakers, for keeping the public roads in repair, and indemnify individuals through whose lands new roads shall be opened.

"To define with precision, the rules whereby aliens should become citizens, and citizens make themselves aliens.

"To establish religious freedom on the broadest bottom.

"To emancipate all slaves born after passing the act.

<center>
<div style="font-size: 85%;">
* Jefferson's Notes on Virginia.
</div>
</center>
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===Page 175===

<blockquote>
"To proportion crimes and punishments according to a scale submitted.

"To abolish pardon and privilege of clergy, but if the verdict be against the defendant, the court in their discretion may allow a new trial.

"No attainder to cause a corruption of blood or forfeiture of dower.

"Slaves guilty of offences punishable in others by labour, to be transported to Africa, or elsewhere as the circumstances of the time admit, there to be continued in slavery.

"A rigorous regimen proposed for those condemned to labour.

"To diffuse knowledge more generally through the mass of the people by means of public schools.

"To establish a public library and gallery, by laying out a certain sum annually in books, paintings and statues."

Of this extensive work of legislation, Wythe executed the revision of those laws which had been enacted during the period commencing with the revolution in England, and ending with the establishment of the new government here, except the acts for regulating descents; for religious freedom; and for proportioning crimes and punishments, which were part of the labours of Mr. Jefferson.

In 1777, the distinguished learning of Wythe in
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===Page 176===

<blockquote>
parliamentary law, and proceedings, caused him to be chosen speaker of the house of delegates; towards the close of the same year, he was appointed one of the three judges of the high court of chancery of Virginia: and on the subsequent change in the organization of the court of equity, was constituted sole chancellor 5 which high station he filled with the strictest integrity for more than twenty years. Whilst in this office he published a collection of Chancery reports, which, by legal characters, are held in high estimation.

Previous to, and during the revolution, debts had been contracted between British and American merchants, and other individuals. The recovery of those debts was made the subject of the sixth article of Jay's treaty with Great Britain; but popular feeling was strong against legal decrees in favour of British claimants. Chancellor Wythe was the first judge who decided that the claims were recoverable, and such decision was given in cases where the state of Virginia was a party. The firmness of the judge, in resisting the torrent of popular prejudice, is not the less to be commended because mere duty was performed; a new and important question had arisen—the complainant was an alien, a late enemy; the respondent was a commonwealth; the judge an officer of the respondent's
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===Page 177===

<blockquote>
creating; the current of opinion set against the legality of the claim, and a nation awaited the decision of the court of equity.

On reviewing the judicial character of Wythe, we find it deeply impressed with the most scrupulous impartiality—rigid justice; unremitting assiduity; and the most pure disinterestedness. It may appear a strange encomium to bestow upon a judge, that his interest did not in the least degree lead him to swerve from his duty: yet when such men have lived as Verulam,<ref>[[wikipedia:Francis Bacon|Francis Bacon]], 1st Baron Verulam.</ref>

<center>
"The greatest, wisest, meanest of mankind,"<ref>Lord Byron misquoting Alexander Pope, "An Essay on Man: Epistle IV": "If parts allure thee, think how Bacon shin'd/The wisest, brightest, meanest of mankind."</ref>
</center>

and [[wikipedia:Thomas Parker, 1st Earl of Macclesfield|Macclesfield]], whose corruption was systematically exercised; since a [[wikipedia:William de Thorpe|chief justice Thorpe]] could traffic with a suiter's rights: since an [[wikipedia:Lionel Cranfield, 1st Earl of Middlesex|Earl of Middlesex]] could delay justice, in a matter referred to his decision by his king; it is not incorrect to place chancellor Wythe in dignified opposition: not to praise indeed that conduct which resulted from adherence to duty, but to hold him up to the world as an example of republican integrity. Bacon died despised and unpitied; Parker lost his estate, and languished in imprisonment; Thorpe was sentenced to death; and the most exemplary punishment was inflicted by James I on the commissioner who was tardy in executing his trust.<ref>Francis Bacon (1561 – 1626), charged with corruption and disgraced; Thomas Parker, 1st Earl of Macclesfield (1666 – 1732), impeached and convicted of taking bribes; William de Thorpe (d. 1361), imprisoned for corruption, and later excommunicated; Lionel Cranfield, 1st Earl of Middlesex (1575 – 1645), impeached and convicted of corruption.</ref> George Wythe, living,
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===Page 178===

<blockquote>
was the fountain of justice—dead, his spotless integrity has erected him a durable monument in the memory of his countrymen.

Wythe had suffered much during the revolution in his pecuniary circumstances. Not only did he devote his time and property to the public service, but the greater part of his slaves which he inherited from his father, was carried over to the enemy by the dishonest manager of his Hampton estate. His immediate relatives, however, benefitted during his life by his generosity. One half of his estate in Elizabeth City he settled on his nephew, and of the remaining part, being sold, the payment of the purchase money was protracted during many years. Thus his resources were limited, and although his salary as chancellor did not exceed three hundred pounds per annum, by economy and judicious management, he discharged his debts, preserved his independence, and was enabled, besides, to perform many conspicuous and estimable actions of private charity. The professorship of law, in the college of William and Mary, for some time gave him an additional income; but the arduous duties of chancellor induced him, on his removal to the city of Richmond, to vacate the chair.

In December 1786, he was selected by the legislature, together with Washington, Henry, Ran-
</blockquote>

===Page 179===

<blockquote>
dolph, Blair, Madison and Mason, as delegates to meet the proposed convention, to revise the federal constitution. His country never losing sight of his distinguished patriotism and abilities, when occasion required his services, we again find him a conspicuous member of the great public body assembled at Richmond, in 1778, to take into view the adoption or rejection of the lately framed constitution of the United States. Subsequently, he was twice a member of the presidential electoral college of Virginia, and presided with great distinction and applause over its meetings.

Amidst all his public services, throughout all his private life, the devotion of Wythe to his country, his scrupulous discharge of the duties of his office, and his universal benevolence of disposition, were eminently apparent. Some of the greatest luminaries at the bar, and in the senate, that Virginia has produced, were instructed in science and led up the steep of Fame by George Wythe. In the list of his pupils we may enumerate two presidents of the United States, a chief justice, and others, who by their abilities and virtues are entitled to the most distinguished honours of their country. Not confining his efforts to those situations in which duty impelled him to exercise the great faculties of his mind for the public advantage, his active philan-
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===Page 180===

<blockquote>
thropy induced him to institute a private school, in which his great pleasure was to impart instruction to such young persons as wished for improvement: demanding no compensation—his reward was found in virtuously educating republican citizens, who would transmit to posterity the pure principles of the venerable sage and statesman.

In emancipating his slaves, Wythe did not cast them on the world friendless and needy; he gave them sufficient to free them from want, and his own example had taught them industrious habits. He had also carried his benevolent disposition to the extent of imparting instruction to a negro boy, whom he had taught the Latin and Greek languages, and who was considerably advanced in science, but unfortunately died a few days before his benefactor.

An unassuming modesty, a simplicity of manners, and a general equanimity of temper, were his distinguishing personal characteristics throughout life. To the possession of these qualities may be referred the cause of his religious opinions being unknown. Immersed in public business, his time devoted to his country, and the energies of his mind directed to her best interests, Wythe sought not in private conversation to disclose his own belief, or to elicit that of others. It was his daily endeavour to live a christian, and he effectually succeeded. One
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===Page 181===

:''Main article: [[Oration, Pronounced at the Funeral of George Wythe]]''

<blockquote>
of his most intimate friends* who [[Oration, Pronounced at the Funeral of George Wythe|pronounced his funeral eulogium]], and who feelingly describes himself as an "unfortunate orphan," who found in Wythe "a second father, instructor and friend," rescues the character of his "dear and noble benefactor," from the charge of infidelity." He conveyed to me," says he, "a year or two before his death, his full conviction of the truth of the christian religion; and on his death-bed, often prayed to Jesus Christ his Saviour, for relief."

His long life of public usefulness was closed, in exhibiting an additional proof of fervent devotion to the interests of the community. Tortured on the bed of death, with agonies produced by poison taken in some portion of his aliment, he was immersed in the study of cases, yet pending in his court; regretting as long as his senses continued, the delay and consequent expense which would be incurred by the parties, should his illness prove fatal. He died in the midst of this benevolent anxiety, on the 8th of June, 1806, in the eighty-first year of his age.

In his death, Virginia mourned one of her most favoured sons: but the cause of his sudden loss spread an additional gloom over the darkness of her grief. No doubt remained of his death being pro-

<center>
<div style="font-size: 85%;">
* [[William Munford]], Esq.
</div>
</center>
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===Page 182===

:''Main article: [[Last Will and Testament]]''

<blockquote>
duced by violence, and suspicion fell upon one, who if guilty, would have added the blackest ingratitude, to the most detestable of crimes.

By [[Last Will and Testament|his last will]] he bequeaths a great part of his property in trust, to support his three freed negroes, a woman, a man and a boy, during their lives; after several legacies, particularly one, "of his books and philosophical apparatus, to his valued friend Thomas Jefferson, president of the United States," the remainder of his estate is devised to George Wythe Sweney, the grandson of his sister.

During the life time of Wythe, his freedman died, and by a codicil to the will, the legacy to the freed-boy is increased, with a provision, that if he should die before his full age, the bequest to him should enure to the benefit of Sweney, the residuary legatee.

A few days before the death of Wythe, a second codicil is dated; in this instrument the freed-boy is mentioned as having "died this morning:"—all the devises to George Wythe Sweney are revoked, and the whole of the Chancellor's estate is left to the other grandchildren of his sister, the brothers and sisters of Sweney, to be equally divided between them.

The sudden death of the negro boy; the revocation of the former devises; the suspicions of the
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===Page 183===

:''Main article: [[Notes for the Biography of George Wythe]]''

<blockquote>
community, fatally confirmed by the death of Wythe himself, all tend to the conclusion that poison was introduced amongst the provisions of the household. The residuary legatee of the first will, submitted to a public trial, on the charge of poisoning his uncle and freed-boy: an acquittal by a jury has caused a veil to be dropped over the transaction revolting to humanity; and the solemn decision of a criminal court, has shown to the world, that although the lamented Wythe died by poison, yet legal certainty cannot be attached to his murderer.

He had been twice married; his first wife was the daughter of Mr. Lewis, with whom he had studied law; and his second was a lady of the wealthy and respectable family of Taliafero, residing near Williamsburg. He had one child which died in infancy, and no issue survived him.

Mr. Jefferson, to whom we are indebted for some of the facts of the preceding narrative, has thus drawn the portrait of the instructor of his youth, the friend of his age, and his compatriot through life.

"No man ever left behind him a character more venerated than George Wythe. His virtue was of the purest kind; his integrity inflexible and his justice exact; of warm patriotism, and devoted as he was to liberty, and the natural and equal rights of men, he might truly be called the [[wikipedia:Distichs of Cato|Cato]] of his coun-
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===Page 184===

<blockquote>
try, without the avarice of the Roman; for a more disinterested person never lived. Temperance and regularity in all his habits, gave him general good health, and his unaffected modesty and suavity of manners endeared him to every one. He was of easy elocution, his language chaste, methodical in the arrangement of his matter, learned and logical in the use of it, and of great urbanity in debate. Not quick of apprehension, but with a little time, profound in penetration, and sound in conclusion. In his philosophy he was firm, and neither troubling, nor perhaps trusting any one with his religious creed, he left to the world the conclusion that that religion must be good which could produce a life of such exemplary virtue.

"His stature was of the middle size, well formed and proportioned, and the features of his face, manly, comely and engaging. Such was George Wythe, the honour of his own, and model of future times."
</blockquote>

==See also==

*[[Notes for the Biography of George Wythe]]
*[[Oration, Pronounced at the Funeral of George Wythe]]
*[[Jefferson-Sanderson Correspondence]]

==References==
<references />

==External links==

Read this book in the [https://archive.org/details/biographyofsigne02sand Internet Archive.]

[[Category:Biographies (Articles)]]
[[Category:Descriptions of Wythe]]

Biography of the Signers to the Declaration of Independence

2015-02-20T14:17:15Z

Jamorris01: /* Page 166 */

{{DISPLAYTITLE:''Biography of the Signers to the Declaration of Independence''}}
[[File:Longacre1823Wythe.jpg|thumb|right|350px|Illustration from John Sanderson's ''Biography of the Signers to the Declaration of Independence,'' Vol. 2 (Philadelphia: R.W. Pomeroy, 1823). "Drawn and Engraved, by J.B. Longacre, from a Portrait in the [[American Gleaner]]."]]
In 1820, [[wikipedia:John P. Sanderson|John Sanderson]] wrote to Thomas Jefferson to [[Jefferson-Sanderson Correspondence|"request... some notice of Mr. Geo. Wythe,"]] for a chapter in ''Biography of the Signers to the Declaration of Independence''<ref>William R. Smith, "George Wythe," in ''Biography of the Signers to the Declaration of Independence,'' ed. John Sanderson (Philadelphia: R.W. Pomeroy, 1823) 2:161-184. Reprinted in Robert T. Conrad, ed. ''Sanderson's Biographies of the Signers to the Declaration of Independence,'' (Philadelphia: William Brotherhead, 1865), 633-644; and in James Tyson, ed., ''An Outline of the Political and Social Life of George Washington, and Biographical Sketches of the Lives of the Fifty-six Signers of the Declaration of Independence'' (Oakland, CA: Pacific Press, 1895), 2:196-212.</ref>—a project which would eventually fill nine volumes, edited by Sanderson, Robert Wain, Jr., and Henry D. Gilpin.


Sanderson tasked William R. Smith with writing Wythe's chapter for volume two of ''Biography of the Signers.''<ref>Smith to John W. Forney, November 20, 1860, and Smith to John A. McAllister, November 20, 1860, John A. Mcallister Collection, Library Company of Philadelphia. Cited in William Edwin Hemphill, ''George Wythe the Colonial Briton: A Biographical Study of the Pre-Revolutionary Era in Virginia'' (PhD diss., University of Virginia, 1937), 44n2. See also Smith, [[http://www.flickr.com/photos/wolflawlibrary/12932582975/ letter to the editor]], Philadelphia ''Weekly Press'' (1860).</ref> According to Smith, he was supplied with [[Notes for the Biography of George Wythe|Jefferson's notes]], and a "biographical notice of Wythe" from a "magazine of that day,"<ref>Smith says the notice was "published (I think) in a Baltimore magazine," but Hemphill believes it was probably the [[American Biographical and Historical Dictionary|''American Law Journal.'']] ''George Wythe the Colonial Briton,'' 44n2.</ref> and from these he framed his life of George Wythe. Jefferson states that Wythe "engaged in the study of the law under the direction of a Mr. Lewis," and Smith here has chosen John Lewis, rather than his father, Zachary. Smith unfortunately repeats the idea (probably from the "magazine" article) that from the age of twenty, Wythe abandoned "all useful study, and spent his whole time in idle amusements and dissipation" for ten years, and did not begin to practice law until the age of thirty. These statements are easily disproved by court records from this time,<ref>Leon M. Bazile, "Discourse Refuting Statements Made That George Wythe at One Time Led a Life of Dissipation," manuscript, [http://vhs4.vahistorical.org/starweb/vhs/servlet.starweb?path=vhs/vhs.web Virginia Historical Society Library], Mss7:1 W9974:1.</ref> as Wythe is recorded representing clients in court between 1747 and 1748 for no fewer than 54 cases in Orange Co., Virginia, alone.<ref>Hemphill, ''George Wythe,'' 47n2.</ref>

==Chapter text, "GEORGE WYTHE"==
===Page 161===

<blockquote>
<center>
'''WYTHE.'''
</center>
<br />

The following account of Mr. Wythe is much less circumstantial than is required by the dignity of the subject. The most important actions of his public life, are so blended with the general history of the country, and his name so conjoined with the other patriots of the revolution, as to admit very little distinct or particular detail. Of his private and domestic transactions, he has left himself no remembrance, and his friends, by whose aid we hoped to supply the deficiency, appear to have postponed this principal object, to indulge in expressions of affection for his memory, and have furnished us rather a panegyric than a history of his life. We shall endeavour, however, from the few materials within our reach, to exhibit such a general view of his character as, we hope, will not be unacceptable to our readers.
</blockquote>

===Page 162===

<blockquote>
GEORGE WYTHE was born in the year 1726, in the county of Elizabeth City on the shores of the Chesapeake, in the then colony of Virginia. He was descended from a respectable family, and inherited from his father, who was a farmer, an estate amply sufficient for all the purposes of ease and independence. His mother was a woman of great strength of mind, and of singular learning; amongst other acquirements she possessed an accurate knowledge of the Latin language, and under her tuition he received the rudiments of his education.

The instructions which he received at school, by some unaccountable negligence, were extremely limited; being confined to mere reading and writing the English language, with a very superficial knowledge of arithmetic. But his powerful mind, exerting its own efforts, soon supplied his defect of scholastic education; for, with the sole assistance afforded by his mother, he became one of the most accomplished Latin and Greek scholars of his country; and by his unaided exertions attained a very honourable proficiency in other branches of learning. To grammar, rhetoric and logic, which he is said to have studied with great success, he added, at an early age, an extensive acquaintance with
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===Page 163===

<blockquote>
civil law; a profound knowledge of mathematics, as well as of natural and moral philosophy.

Of these various attainments, so honourable to his industry and genius, much of the merit, no doubt very justly, is ascribed to the affectionate and tender zeal of his mother: it is related that she not only taught him the Latin, but assisted also his acquisition of the Greek, though altogether unacquainted with that language; uniting for this purpose, in his studies, and by inspecting an English version of the works which he read, enabling herself to aid his progress and to ascertain the accuracy of his translations.

Of this excellent mother, he was bereaved during his minority. He lost also, near the same time, his father, of whom there is given a very amiable character, for simplicity and candour of behaviour, parental tenderness, and for prudence in the management of his fortune. Being thus in the possession of money and exposed, in the luxuriance of youthful passions, to the seductions of pleasure, he suspended during several years, all useful study, and spent his whole time in idle amusements and dissipation.<ref>Wythe's time spent in "dissipation" is refuted. See Bazile, "Discourse."</ref> But to whatever levities he may have been betrayed, it is evident from the subsequent events of his life, that his principles of honour remained uncorrupted. When he had attained his
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===Page 164===

<blockquote>
thirtieth year, he shook off all these youthful follies and employed himself in the most indefatigable study; and from this period till the close of his life, protracted to the length of eighty years, lived in the practice of the most rigid and inflexible-virtue.

To his friends he often expressed the deepest regret that so many years of time had thus been irretrievably lost to him; and when we reflect on the many splendid monuments of his wisdom, and patriotic devotion to the best interest of his country, which have given him an imperishable name in her records, an instructive lesson may be drawn from his generous repentance. No man ever stood higher in the estimation of his countrymen; and no one better merited this distinction; yet after fifty years had been spent in the exercise of all that is noble in man, the venerable patriot still sighed over the short period of youthful aberration, as so much valuable time unemployed in conferring benefits on his country and on mankind.

He studied the profession of the law under the direction of Mr. John Lewis, an eminent practitioner;<ref>Wythe studied law under his uncle, Stephen Dewey, of Prince George County, Virginia; he began the practice of law with Zachary Lewis of Spotsvylvania Co., father of John Lewis.</ref> and at an early period was called to the bar of the general court, then filled by men of great eminence and ability in their profession. For a short time he continued their equal, but by reason of his extensive learning, correctness of elocution, and
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===Page 165===

<blockquote>
his logical style of argument, he quickly arrived at the head of the bar.

As a lawyer, the character of Wythe bears the severest scrutiny. In his hands the dignity of the profession was never prostrated to the support of an unjust cause: in this he was so scrupulous, that where doubts were entertained of the truth of his clients' statements, he even required the solemnity of an oath previous to his defence; and if deception was in any manner practised upon him, the fee was returned, and the cause abandoned. Such disinterestedness procured him universal esteem; and as he was no less distinguished by correctness and purity of conduct in his profession, than by his great learning, and his industry and fidelity to those who employed him, promotion succeeded confidence, and on the organization of the new government, he was invested with the most considerable judicial rank which his country could bestow upon him. As chancellor of Virginia, he continued to dispense the most exact justice until the day of his death.

Early in life he was elected to represent his native county in the house of burgesses; of which he continued a member until the dawn of the revolution. His cotemporaries in the house, were men of the highest standing in Virginia for rank and talent; and in the memorable year of 1764, when the re-
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===Page 166===

<blockquote>
solutions of the British parliament preparatory to the passage of the stamp act, were communicated to the house of burgesses, he found himself called upon to act with such worthies as Robert C. Nicholas, Edmond Pendleton, Richard Bland, Peyton Randolph, Richard Henry Lee and Benjamin Harrison. And his holding a prominent station amongst these most celebrated names of our country, is no equivocal evidence of his abilities and merits.

On the 14th of November 1764, he was appointed a member of a committee of the house of burgesses to prepare and report a petition to the king; a memorial to the house of lords, and a [[Remonstrance to the House of Commons|remonstrance to the House of commons]], on the subject of the proposed stamp act. The latter paper was drawn up by Wythe, and following his own principles, his language was that of boldness and truth; going far beyond the timid hesitations of his colleagues, who viewed it as bordering on treason, consequently his draft was subjected to many material modifications. These documents were reported on the 18th of December, and after much warm debate and considerable amendments tending to soften the asperity of complaint, received the concurrence of council.

From the general tenor of these papers, it is obvious that revolutionary opposition to the regal government, was not then intended. For, although
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===Page 167===

<blockquote>
the rights of the colony, so far as they respected exemption from taxation, except by her own representatives, are firmly set forth and insisted on; yet the language is supplicatory, and the miseries about to be inflicted on an impoverished community by the excessive weight of the projected law, are feelingly anticipated. Remonstrance alone was intended, and the colonies looked with anxiety to the parent country for favourable replies to most dutiful petitions; but remonstrance was ineffectual, and in January 1765, the stamp act was passed, to have operation from the first of November following. The promulgation of this law, soon diffused a spirit of discontent and opposition through America, and brought the abilities of her patriots and heroes into more conspicuous notice.

In Virginia the house of burgesses had received an extraordinary acquisition in the person of one of its young members, the celebrated Patrick Henry; who, from comparative obscurity, was ultimately thrice raised to the highest dignity of the commonwealth, by the unanimous voice of his countrymen. Henry was one of the most fascinating orators of modern times: his patriotism like that of most of his associates in public life, was of the purest kind; and in consequence of his great exertions in the house of burgesses; by the marked intrepidity of his
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===Page 168===

<blockquote>
conduct; by the fire of his matchless eloquence, the American revolution presented its first determined front, in the boldest opposition, to the hateful law.

A few days previous to the close of the session, in May 1765, the following resolutions were offered to the consideration of the house by Mr. Henry.

"Resolved.—That the first adventurers and settlers of this, his majesty's colony and dominion, brought with them, and transmitted to their posterity, and all other his majesty's subjects, since inhabiting in this his majesty's said colony, all the privileges, franchises, and immunities, that have at any time been held, enjoyed and possessed, by the people of Great Britain.

"That by two royal charters granted by king James the first, the colonists aforesaid are declared entitled to all the privileges and immunities of denizens and natural born subjects to all intents and purposes, as if they had been abiding and born within the realm of England.

"That the taxation of the people by themselves, or by persons chosen by themselves to represent them, who can only know what taxes the people are able to bear, and the easiest mode of raising them, is the distinguishing characteristic of British freedom, and without which the ancient constitution cannot subsist,
</blockquote>

===Page 169===

<blockquote>
"That his majesty's liege people of this most ancient colony, have uninterruptedly enjoyed the right of being thus governed by their own assembly in the article of their taxes and internal police; and that the same hath never been forfeited, or any other way given up, but hath been constantly recognized by the king and people of Great Britain.

"Resolved therefore, that the general assembly of this colony have the sole right and power to lay taxes and impositions upon the inhabitants of this colony: and that any attempt to vest such power in any person or persons whatsoever, other than the general assembly aforesaid, has a manifest tendency to destroy British as well as American freedom."

These resolutions created an extraordinary alarm in the house, and the most violent debates ensued. Not only were they opposed by the advocates of the measures of the royal government, and by the aristocracy of the state, but even some of the warmest friends of American independence endeavoured to prevent their adoption. Among the latter we find Nicholas, Pendleton, Randolph, Bland and Wythe, who had long been the habitual leaders of the house. Their opposition was, however, not founded on any difference of principle, but because the petition, memorial and remonstrance of the pre-
</blockquote>

===Page 170===

<blockquote>
ceding session, had already expressed the same sentiments, and made the same assertions of right; and answers to those documents were yet to be expected. Notwithstanding the daring language of the resolutions; the opposition of the ministerial party in the house; and the dread of the best friends of our liberties, of plunging the colony unprepared, feeble, and without defence, into hostility with Great Britain, the bold and sublime eloquence of Henry achieved a victory. The resolutions were all adopted after some immaterial alterations in each of them; but the fifth, and strongest, was passed by a majority of a single vote. Henry did not attend the sitting of the following day, and then, the alarm of a majority of burgesses, caused them by a timid vote to expunge the fifth resolution from the journals.

The repeal of the stamp act in 1766, in a great degree revived the affection of the colonists for the mother country; but the subsequent passage of the statute, commonly termed the glass, paper and tea act; the statute restricting the powers of the New York legislature; and the statute erecting courts of vice admiralty on new models, soon afterwards excited anew their apprehensions and inflamed their discontents; and during the session of 1768, Wythe was a member of the house of burgesses, in which
</blockquote>

===Page 171===

<blockquote>
he held a prominent station, when the famous resolutions were adopted by which Virginia asserted in determined language her exclusive right of taxation in all cases whatsoever; complained of the violation of the British constitution by recent acts of parliament; and firmly remonstrated against the oppression of holding trials in England, on persons, for offences committed in the colonies.

These resolutions breathing the full spirit of patriotism, were hurried through the house without regard to the established form of parliamentary proceedings, lest the assembly should be dissolved by the governor, on the first intimation which he might receive of their proposed acts. In fact, lord Bottetourt heard of the resolutions late in the evening; in vain endeavoured to procure a copy of them from the clerk, and on the next day dissolved the house of burgesses; but not until the records were entered on the journals: the members having very early in the morning convened for that purpose, in correct anticipation of their immediate dispersion.

The resolution of the house, did not produce any effect favourable to the royal cause. The same members, without any exception were returned, and the spirit of resistance, increased in strength. Wythe, as a member of the house, was bold and determined in the position he had taken. On the
</blockquote>

===Page 172===

<blockquote>
one hand, the liberties of his country were threatened; and on the other, his character, nay, his life itself was placed in danger. But no human consideration was equivalent to his love of liberty and fidelity to his country. He stood on the solid ground, that the only link of political union between the colonies and Great Britain, was the identity of the executive: that the parent country and its parliament, had no more authority over the colonies, than the colonies over them: and that the colonies were co-ordinate nations with Great Britain and Hanover.

Thomas Jefferson had been the pupil of Wythe, and under his auspices was introduced to the bar. The sentiments of the friend and counsellor, which were instilled by instruction and example, were exhibited to the world in the "Summary View of the rights of British America;" and now in the same venerable public body, the preceptor and pupil stood forth as vindicators of the rights and privileges of their injured countrymen, and as undeviating advocates of that system of government, which has since been so happily established.

From this time until the years 1775, Wythe continued his unabated exertions in favour of independence. On the first rising of the colonists, he joined a corps of volunteers, and evinced his
</blockquote>

===Page 173===

<blockquote>
promptness to support the cause which he had advocated in the senate, by a resort to arms in the field. But his country, at this important period, required the united talents of her ablest statesmen; and in August 1775, he was appointed one of the delegates from his native state, to that congress, which in the succeeding year, declared the Independence of America.

In consequence of this great change in the form of government, and in order to strengthen and confirm the principles of the revolution, the house of assembly of Virginia, by a resolution of the fifth of November 1776, appointed Thomas Jefferson, Edmond Pendleton, George Wythe, George Mason and Thomas Ludwell Lee, a committee to revise the laws of the state, as well of British as of colonial enactment, and to prepare bills for re-enacting them, with such alterations as the change in the form and principles of the government, and other circumstances required. The two last named gentlemen did not act with the committee, owing to the death of one, and the resignation of the other. But so industrious were Jefferson, Pendleton and Wythe, in this great work of legislation, that on the 18th of June, 1779, one hundred and twenty-six bills were prepared and reported to the general assembly.
</blockquote>

===Page 174===

<blockquote>
The common law of England is preserved as the basis of the revised code. To use the language of one of the committee,* the most remarkable alterations proposed, were,

"To change the rules of descent, so as that the lands of any person dying intestate, shall be divisible equally among all his children, or other representatives, in equal degree.

"To make slaves distributable among the next of-kin, as other moveables.

"To have all public expenses, whether of the general treasury, or of a parish or county (as for the maintenance of the poor, building bridges, court houses, &c.) supplied by assessments on the citizens in proportion to their property.

"To hire undertakers, for keeping the public roads in repair, and indemnify individuals through whose lands new roads shall be opened.

"To define with precision, the rules whereby aliens should become citizens, and citizens make themselves aliens.

"To establish religious freedom on the broadest bottom.

"To emancipate all slaves born after passing the act.

<center>
<div style="font-size: 85%;">
* Jefferson's Notes on Virginia.
</div>
</center>
</blockquote>

===Page 175===

<blockquote>
"To proportion crimes and punishments according to a scale submitted.

"To abolish pardon and privilege of clergy, but if the verdict be against the defendant, the court in their discretion may allow a new trial.

"No attainder to cause a corruption of blood or forfeiture of dower.

"Slaves guilty of offences punishable in others by labour, to be transported to Africa, or elsewhere as the circumstances of the time admit, there to be continued in slavery.

"A rigorous regimen proposed for those condemned to labour.

"To diffuse knowledge more generally through the mass of the people by means of public schools.

"To establish a public library and gallery, by laying out a certain sum annually in books, paintings and statues."

Of this extensive work of legislation, Wythe executed the revision of those laws which had been enacted during the period commencing with the revolution in England, and ending with the establishment of the new government here, except the acts for regulating descents; for religious freedom; and for proportioning crimes and punishments, which were part of the labours of Mr. Jefferson.

In 1777, the distinguished learning of Wythe in
</blockquote>

===Page 176===

<blockquote>
parliamentary law, and proceedings, caused him to be chosen speaker of the house of delegates; towards the close of the same year, he was appointed one of the three judges of the high court of chancery of Virginia: and on the subsequent change in the organization of the court of equity, was constituted sole chancellor 5 which high station he filled with the strictest integrity for more than twenty years. Whilst in this office he published a collection of Chancery reports, which, by legal characters, are held in high estimation.

Previous to, and during the revolution, debts had been contracted between British and American merchants, and other individuals. The recovery of those debts was made the subject of the sixth article of Jay's treaty with Great Britain; but popular feeling was strong against legal decrees in favour of British claimants. Chancellor Wythe was the first judge who decided that the claims were recoverable, and such decision was given in cases where the state of Virginia was a party. The firmness of the judge, in resisting the torrent of popular prejudice, is not the less to be commended because mere duty was performed; a new and important question had arisen—the complainant was an alien, a late enemy; the respondent was a commonwealth; the judge an officer of the respondent's
</blockquote>

===Page 177===

<blockquote>
creating; the current of opinion set against the legality of the claim, and a nation awaited the decision of the court of equity.

On reviewing the judicial character of Wythe, we find it deeply impressed with the most scrupulous impartiality—rigid justice; unremitting assiduity; and the most pure disinterestedness. It may appear a strange encomium to bestow upon a judge, that his interest did not in the least degree lead him to swerve from his duty: yet when such men have lived as Verulam,<ref>[[wikipedia:Francis Bacon|Francis Bacon]], 1st Baron Verulam.</ref>

<center>
"The greatest, wisest, meanest of mankind,"<ref>Lord Byron misquoting Alexander Pope, "An Essay on Man: Epistle IV": "If parts allure thee, think how Bacon shin'd/The wisest, brightest, meanest of mankind."</ref>
</center>

and [[wikipedia:Thomas Parker, 1st Earl of Macclesfield|Macclesfield]], whose corruption was systematically exercised; since a [[wikipedia:William de Thorpe|chief justice Thorpe]] could traffic with a suiter's rights: since an [[wikipedia:Lionel Cranfield, 1st Earl of Middlesex|Earl of Middlesex]] could delay justice, in a matter referred to his decision by his king; it is not incorrect to place chancellor Wythe in dignified opposition: not to praise indeed that conduct which resulted from adherence to duty, but to hold him up to the world as an example of republican integrity. Bacon died despised and unpitied; Parker lost his estate, and languished in imprisonment; Thorpe was sentenced to death; and the most exemplary punishment was inflicted by James I on the commissioner who was tardy in executing his trust.<ref>Francis Bacon (1561 – 1626), charged with corruption and disgraced; Thomas Parker, 1st Earl of Macclesfield (1666 – 1732), impeached and convicted of taking bribes; William de Thorpe (d. 1361), imprisoned for corruption, and later excommunicated; Lionel Cranfield, 1st Earl of Middlesex (1575 – 1645), impeached and convicted of corruption.</ref> George Wythe, living,
</blockquote>

===Page 178===

<blockquote>
was the fountain of justice—dead, his spotless integrity has erected him a durable monument in the memory of his countrymen.

Wythe had suffered much during the revolution in his pecuniary circumstances. Not only did he devote his time and property to the public service, but the greater part of his slaves which he inherited from his father, was carried over to the enemy by the dishonest manager of his Hampton estate. His immediate relatives, however, benefitted during his life by his generosity. One half of his estate in Elizabeth City he settled on his nephew, and of the remaining part, being sold, the payment of the purchase money was protracted during many years. Thus his resources were limited, and although his salary as chancellor did not exceed three hundred pounds per annum, by economy and judicious management, he discharged his debts, preserved his independence, and was enabled, besides, to perform many conspicuous and estimable actions of private charity. The professorship of law, in the college of William and Mary, for some time gave him an additional income; but the arduous duties of chancellor induced him, on his removal to the city of Richmond, to vacate the chair.

In December 1786, he was selected by the legislature, together with Washington, Henry, Ran-
</blockquote>

===Page 179===

<blockquote>
dolph, Blair, Madison and Mason, as delegates to meet the proposed convention, to revise the federal constitution. His country never losing sight of his distinguished patriotism and abilities, when occasion required his services, we again find him a conspicuous member of the great public body assembled at Richmond, in 1778, to take into view the adoption or rejection of the lately framed constitution of the United States. Subsequently, he was twice a member of the presidential electoral college of Virginia, and presided with great distinction and applause over its meetings.

Amidst all his public services, throughout all his private life, the devotion of Wythe to his country, his scrupulous discharge of the duties of his office, and his universal benevolence of disposition, were eminently apparent. Some of the greatest luminaries at the bar, and in the senate, that Virginia has produced, were instructed in science and led up the steep of Fame by George Wythe. In the list of his pupils we may enumerate two presidents of the United States, a chief justice, and others, who by their abilities and virtues are entitled to the most distinguished honours of their country. Not confining his efforts to those situations in which duty impelled him to exercise the great faculties of his mind for the public advantage, his active philan-
</blockquote>

===Page 180===

<blockquote>
thropy induced him to institute a private school, in which his great pleasure was to impart instruction to such young persons as wished for improvement: demanding no compensation—his reward was found in virtuously educating republican citizens, who would transmit to posterity the pure principles of the venerable sage and statesman.

In emancipating his slaves, Wythe did not cast them on the world friendless and needy; he gave them sufficient to free them from want, and his own example had taught them industrious habits. He had also carried his benevolent disposition to the extent of imparting instruction to a negro boy, whom he had taught the Latin and Greek languages, and who was considerably advanced in science, but unfortunately died a few days before his benefactor.

An unassuming modesty, a simplicity of manners, and a general equanimity of temper, were his distinguishing personal characteristics throughout life. To the possession of these qualities may be referred the cause of his religious opinions being unknown. Immersed in public business, his time devoted to his country, and the energies of his mind directed to her best interests, Wythe sought not in private conversation to disclose his own belief, or to elicit that of others. It was his daily endeavour to live a christian, and he effectually succeeded. One
</blockquote>

===Page 181===

:''Main article: [[Oration, Pronounced at the Funeral of George Wythe]]''

<blockquote>
of his most intimate friends* who [[Oration, Pronounced at the Funeral of George Wythe|pronounced his funeral eulogium]], and who feelingly describes himself as an "unfortunate orphan," who found in Wythe "a second father, instructor and friend," rescues the character of his "dear and noble benefactor," from the charge of infidelity." He conveyed to me," says he, "a year or two before his death, his full conviction of the truth of the christian religion; and on his death-bed, often prayed to Jesus Christ his Saviour, for relief."

His long life of public usefulness was closed, in exhibiting an additional proof of fervent devotion to the interests of the community. Tortured on the bed of death, with agonies produced by poison taken in some portion of his aliment, he was immersed in the study of cases, yet pending in his court; regretting as long as his senses continued, the delay and consequent expense which would be incurred by the parties, should his illness prove fatal. He died in the midst of this benevolent anxiety, on the 8th of June, 1806, in the eighty-first year of his age.

In his death, Virginia mourned one of her most favoured sons: but the cause of his sudden loss spread an additional gloom over the darkness of her grief. No doubt remained of his death being pro-

<center>
<div style="font-size: 85%;">
* [[William Munford]], Esq.
</div>
</center>
</blockquote>

===Page 182===

:''Main article: [[Last Will and Testament]]''

<blockquote>
duced by violence, and suspicion fell upon one, who if guilty, would have added the blackest ingratitude, to the most detestable of crimes.

By [[Last Will and Testament|his last will]] he bequeaths a great part of his property in trust, to support his three freed negroes, a woman, a man and a boy, during their lives; after several legacies, particularly one, "of his books and philosophical apparatus, to his valued friend Thomas Jefferson, president of the United States," the remainder of his estate is devised to George Wythe Sweney, the grandson of his sister.

During the life time of Wythe, his freedman died, and by a codicil to the will, the legacy to the freed-boy is increased, with a provision, that if he should die before his full age, the bequest to him should enure to the benefit of Sweney, the residuary legatee.

A few days before the death of Wythe, a second codicil is dated; in this instrument the freed-boy is mentioned as having "died this morning:"—all the devises to George Wythe Sweney are revoked, and the whole of the Chancellor's estate is left to the other grandchildren of his sister, the brothers and sisters of Sweney, to be equally divided between them.

The sudden death of the negro boy; the revocation of the former devises; the suspicions of the
</blockquote>

===Page 183===

:''Main article: [[Notes for the Biography of George Wythe]]''

<blockquote>
community, fatally confirmed by the death of Wythe himself, all tend to the conclusion that poison was introduced amongst the provisions of the household. The residuary legatee of the first will, submitted to a public trial, on the charge of poisoning his uncle and freed-boy: an acquittal by a jury has caused a veil to be dropped over the transaction revolting to humanity; and the solemn decision of a criminal court, has shown to the world, that although the lamented Wythe died by poison, yet legal certainty cannot be attached to his murderer.

He had been twice married; his first wife was the daughter of Mr. Lewis, with whom he had studied law; and his second was a lady of the wealthy and respectable family of Taliafero, residing near Williamsburg. He had one child which died in infancy, and no issue survived him.

Mr. Jefferson, to whom we are indebted for some of the facts of the preceding narrative, has thus drawn the portrait of the instructor of his youth, the friend of his age, and his compatriot through life.

"No man ever left behind him a character more venerated than George Wythe. His virtue was of the purest kind; his integrity inflexible and his justice exact; of warm patriotism, and devoted as he was to liberty, and the natural and equal rights of men, he might truly be called the [[wikipedia:Distichs of Cato|Cato]] of his coun-
</blockquote>

===Page 184===

<blockquote>
try, without the avarice of the Roman; for a more disinterested person never lived. Temperance and regularity in all his habits, gave him general good health, and his unaffected modesty and suavity of manners endeared him to every one. He was of easy elocution, his language chaste, methodical in the arrangement of his matter, learned and logical in the use of it, and of great urbanity in debate. Not quick of apprehension, but with a little time, profound in penetration, and sound in conclusion. In his philosophy he was firm, and neither troubling, nor perhaps trusting any one with his religious creed, he left to the world the conclusion that that religion must be good which could produce a life of such exemplary virtue.

"His stature was of the middle size, well formed and proportioned, and the features of his face, manly, comely and engaging. Such was George Wythe, the honour of his own, and model of future times."
</blockquote>

==See also==

*[[Notes for the Biography of George Wythe]]
*[[Oration, Pronounced at the Funeral of George Wythe]]
*[[Jefferson-Sanderson Correspondence]]

==References==
<references />

==External links==

Read this book in the [https://archive.org/details/biographyofsigne02sand Internet Archive.]

[[Category:Biographies (Articles)]]
[[Category:Descriptions of Wythe]]

Encyclopaedia Americana

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{{DISPLAYTITLE:''Encyclopædia Americana''}}
[[File:LieberEncyclopaediaAmerican1833p287.jpg|thumb|300px|right|[[George Wythe|George Wythe's]] entry in vol. 13 of the [[Media:LieberEncyclopaediaAmericana1833.pdf|''Encyclopædia Americana,'']] ed. Francis Lieber (Philadelphia: Carey, Lea, and Blanchard, 1833).]]
Francis Lieber, ed., [[Media:LieberEncyclopaediaAmericana1833.pdf|''Encyclopædia Americana,'']] (Philadelphia: Carey, Lea, and Blanchard, 1833), 13:287.<ref>Francis Lieber, ed., [[Media:LieberEncyclopaediaAmericana1833.pdf|''Encyclopædia Americana,'']] (Philadelphia: Carey, Lea, and Blanchard, 1833), 13:287.</ref>

==Article text==
===Page 287===

<center>
WYNDHAM—WYTTENBACH
</center>

<blockquote>
Wythe, George, a signer of the Declaration of Independence, was born, in 1726, in Elizabeth county, Virginia. His education was principally directed by his mother. The death of both his parents before he became of age, and the uncontrolled possession of a large fortune, led him, for some time, into a course of amusement and dissipation. At the age of thirty, however, his conduct underwent an entire change. He applied himself vigorously to the study of the law; and, soon after his admission to the bar, his learning, industry, and eloquence, made him eminent. For several years previous to the revolution, he was conspicuous in the house of burgesses, and, in the commencement of the opposition to England, evinced an ardent attachment to liberty.

In 1764, he drew up a [[Remonstrance to the House of Commons|remonstrance to the house of commons]], in a tone of independence too decided for that period, and which was greatly modified by the assembly before assenting to it. In 1775, he was appointed a delegate to the continental congress, in Philadelphia. In the following year, he was appointed, in connexion with Mr. Jefferson and others, to revise the laws of Virginia—a duty which was performed with great ability. In 1777, he was elected speaker of the house of delegates, and, during the same year, was appointed judge of the high court of chancery of the state. On the new organization of the court of equity, in a subsequent year, he was appointed sole chancellor—a station which he filled for more than twenty years. In 1787, he was a member of the convention which formed the federal constitution, and, during the debates, acted, for the most part, as chairman. He was a strenuous advocate of the instrument adopted. He subsequently presided twice successively in the college of electors, in Virginia. His death occurred on the 8th of June, 1806, in the eighty-first year of his age. It was supposed that he was poisoned; but the person suspected was acquitted by a jury. In learning, industry and judgment, chancellor Wythe had few superiors. His integrity was never stained even by a suspicion; and, from the moment of his abandonment of the follies of his youth, his reputation was unspotted. The kindness and benevolence of his heart were commensurate with the strength and attainments of his mind.
</blockquote>

==See also==

*[[American Biographical and Historical Dictionary]]
*[[Lempriere's Universal Biography]]
*[[National Cyclopaedia of American Biography]]

==References==
<references />

==External links==

Read this article in [http://books.google.com/books?id=8ohPAAAAMAAJ&pg=PA287 Google Books.]

[[Category:Biographies (Articles)]]

Biographical Sketch of the Judges

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{{DISPLAYTITLE:"Biographical Sketch of the Judges of the Court of Appeals"}}
[[File:CallBiographicalSketchOfTheJudges1833pX.jpg|thumb|right|400px|Biographical sketch of [[George Wythe|Judge Wythe]], in vol. 4 of [[Media:CallBiographicalSketchOfTheJudges1833.pdf|''Reports of Cases Argued and Decided in the Court of Appeals of Virginia,'']] ed. Daniel Call (Richmond, VA: Robert I. Smith, 1833).]]
[[Media:CallBiographicalSketchOfTheJudges1833.pdf|Biographical sketch]] of [[George Wythe]] written by Daniel Call for the fourth volume of the second edition of his ''[[Reports of Cases Argued and Adjudged in the Court of Appeals of Virginia|Reports of Cases Argued and Decided in the Court of Appeals of Virginia]].''<ref>Daniel Call, [[Media:CallBiographicalSketchOfTheJudges1833.pdf|"Biographical Sketch of the Judges,"]] in ''Reports of Cases Argued and Decided in the Court of Appeals of Virginia,'' 2nd ed. (Richmond, VA: Robert I. Smith, 1833), 4:x-xv. The title of the second edition differs slightly from the first.</ref>

==Article text==
===Page x===

<blockquote>
<center>
'''JUDGE WYTHE.'''
</center>

MR. WYTHE'S parents, on both sides, were of respectable families: but, as he had little reverence for the merit of ancestry in others, he put no value on it, in his own case. The following sketch of his life, was probably furnished by the same hand, which drew that of Mr. ''Pendleton.''<ref>Call says of Pendleton's entry in ''Lempriere:'' "The foregoing sketch was probably furnished by a distinguished gentleman of this state, who knew Mr. PENDLETON well" (p. viii).</ref>

"GEORGE WYTHE, chancellor of Virginia, was born in the county of Elizabeth City in 1726. His mother possessed uncommon strength of mind and knowledge, and taught him the Latin language. His education in other respects was defective. At the age of thirty, he abandoned a course of dissipation to which he had addicted himself, and devoted his attention to the acquisition of knowledge. After accomplishing himself in the languages and sciences, he studied law, and commenced its practice. At the opening of the revolution, he, with ''Pendleton, Henry, Mason'' and the ''Lees,'' espoused the cause of liberty, and was one of the distinguished men who were the leaders in Virginia during that struggle. He was, for some time, speaker of the house of burgesses, and in 1775, elected a member of congress, and signed the declaration of independence. In 1776, he was appointed one of the committee to revise the laws of Virginia, and had a principal share in preparing the code, which, with some alterations, was adopted in 1779. He was soon after appointed one of the three judges of the high court of chancery, and afterwards sole chancellor, in which station he continued till his death. He was a member of the convention of Virginia which considered the constitution of the United States, and exerted his influence to obtain its adoption; and he was twice one of the electors of president and vice president of the United States. He died in 1806, on the 8th of June; it was supposed by poison. Chancellor WYTHE was one of the most eminent of the great statesmen and jurists among his contemporaries. His mind was uncommonly vigorous and rapid in its perceptions, his knowledge of law profound, his uprightness and impartiality preeminent, and his patriotism ardent. He was unambitious of wealth, plain and frugal in his method of life, and condescending and amiable in his manners." [[Lempriere's Universal Biography|''Lemp. Biogr. Dict.'']]<ref>John Lemprière, "Wythe, George," in [[Lempriere's Universal Biography|''Lempriere's Universal Biography,'']] (New York: R. Lockwood, 1825), 2:834.</ref> This delineation, like that in the case of Mr. ''Pendleton'', is in the main correct;
</blockquote>

===Page xi===
<blockquote>
but there are slight errors, and some omissions, which it will be proper to notice: and that will be best done by a more general account of his life.

Mr. ''Keith,'' a quaker gentleman of a good fortune, migrated from Great Britain to the town of Hampton in Virginia, about the year 1690. He was well educated, and I have seen, in Mr. WYTHE'S library, a folio volume written, by him, upon mathematical and other subjects. He had five daughters: One of whom married Mr. ''Walker,'' a wealthy gentleman on Back river near Hampton, whose son afterwards removed to the county of Brunswick; another married Mr. ''Wray'' of Hampton, the ancestor of the present family of that place; another married Mr. ''Dewee'' a lawyer of distinction,<ref>Wythe's uncle, Stephen Dewey, was burgess for Prince George Co., 1752-55; he later moved to North Carolina.</ref> who settled in the county of Prince George, about four miles below Petersburg, and died without issue; another married Mr. ''Taylor,'' the captain of a merchant ship, who likewise settled in the county of Prince George near Petersburg, and was possessed of a moderate, but independent estate; and the other married Mr. ''Wythe'' of the town of Hampton, who owned a good farm on Back river, and died intestate, survived by his wife, a daughter and two sons, ''Thomas'' the eldest, who was his heir at law, and GEORGE, the subject of this essay, a small boy. As the widow and her son GEORGE were not left wealthy, she undertook his education herself; but only, taught him the Latin grammar, and to read the colloquies of ''Corderius'' very imperfectly, as he told me. After which, she sent him to Prince George, to study law, under Mr. ''Dewee;'' who treated him with neglect, and confined him to the drudgery of his office, with little, or no, attention to his instruction in the general science of law. So that, upon his return to Elizabeth City, in the course of a year or two, he had made little progress; but he then applied himself, with great assiduity, unassisted by any tutor, to the study of the law, the dead languages, and liberal sciences, until the death of his mother; and that of his brother, who died intestate, and without issue. Upon the happening of which events, he succeeded to
a comfortable estate; and, from that period, the following sketch, taken from the Encyclopedia, may be considered as, tolerably, correct.

"The death of both his parents, before he came of age, and the uncontrolled possession of a large fortune, led him, for some time,
</blockquote>

===Page xii===
<blockquote>
into a course of amusement and dissipation. At the age of, thirty, however, his conduct underwent an entire change. He applied himself vigorously to the study of law; and soon after his admission to the bar, his learning, industry, and eloquence made him eminent. For several years previous to the revolution, he was conspicuous in the house of burgesses; and, in the commencement of the opposition to England, evinced an ardent attachment to liberty. In 1764, he drew up a [[Remonstrance to the House of Commons|remonstrance to the house of commons]], in a tone of independence too decided for that period, and which was greatly modified, by the assembly, before assenting to it. In 1775, he was appointed a delegate to the continental congress, in Philadelphia. In the following year, he was appointed, in connexion with Mr. ''Jefferson'' and others, to revise the laws of Virginia; a duty which was performed with great ability. In 1777, he was elected speaker of the house of delegates; and, during the same year, was appointed a judge of the high court of chancery of the state. On the new organization of the court of equity, in a subsequent year, he was appointed sole chancellor. A station which he filled for more than twenty years. In 1787, he was a member of the convention which formed the federal constitution; and, during the debates, acted, for the most part, as chairman. He was a strenuous advocate for the instrument adopted. He, subsequently, presided twice successively in the college of electors, in Virginia. His death occurred on the 8th of June 1806, in the eighty-first year of his age. It was supposed he was poisoned; but the person suspected was acquitted by a jury. In learning, industry and judgment, chancellor WYTHE had few superiors. His integrity was never stained even by suspicion; and, from the moment of his abandonment of the follies of his youth, his reputation was unspotted. The kindness and benevolence of his heart were commensurate with the strength and attainments of his mind." [[Encyclopaedia Americana|''Encyclop. Americ.'']]<ref>Francis Lieber, ed., [[Encyclopaedia Americana|''Encyclopædia Americana,'']] (Philadelphia: Carey, Lea, and Blanchard, 1833), 13:287.</ref>

The following additional circumstances will not be uninteresting.

The independent conduct of Mr. WYTHE never lost him the esteem of government; for he was intimate with all the royal governours, except lord ''Dunmore,'' whose want of literature and habits were not agreeable to him. He was several times clerk of the house of burgesses, which was considered as an honourable office; and in his election to that and the speaker's chair he was supported
</blockquote>

===Page xiii===

<blockquote>
by the government party. His great reputation and literary attainments made Mr. ''Jefferson,'' at leaving William & Mary college, desirous of studying law, under his instruction: Which, by the intervention of one of the professors, with whom Mr. WYTHE was very intimate, was effected; and, during that period, a friendship was formed between them, which was ardent and uninterrupted through life. He was one of the most active men of the time in favor of the revolution; wore a hunting shirt, carried a musket, and joined the military parades, which took place at Williamsburg, during the latter part of lord ''Dunmore's'' government. As a judge of the high court of chancery, he was, necessarily, one of the judges of the first court of appeals; where he was the most forward, in favour of the power of the court to declare an unconstitutional law void: and his argument, upon that subject, in the case of the ''[[Commonwealth v. Caton|Commonwealth against Caton]] and others,'' will ever remain a monument to his honour. In 1781, he was appointed professor of law in the college of William & Mary; and performed the duties of the office, with great ability and usefulness, until the year 1789, when he resigned it, and removed to the city of Richmond; that he might be nearer to the scene of his judicial occupations, and more convenient to those, who had occasion to apply to him, as judge, during vacation. He possessed a good constitution; but exposed it too much, even to the last years of his life, to cold and hardship, in order to save time, and not molest others. He died venerated by his country; was honoured with a public funeral; and his [[Oration, Pronounced at the Funeral of George Wythe|eulogy was pronounced]] by Mr. ''William Munford'' one of his pupils, and then a member of the executive council.

Mr. WYTHE'S person was handsome, and his manners polished. In private life, he was every way amiable: a dutiful son, affectionate brother, fond relation and benevolent man. Always polite, modest and upright.* Sometimes facetious with his friends, his general deportment was reserved; for although he neither lacked quickness of parts, nor colloquial talents, his temper was cautious and taciturn, unless roused by some improper remark; when he was apt to retort with great severity. For he possessed dry humour

<hr />
<div style="font-size: 85%;">
* No man ever better merited the character drawn by ''Suetonius,'' the historian, "''Fuit morum lenissimorum, verecundiæ virginatis, formae pulchrae, pietatis erga matrem et sororem et amitam exemplo sufficientis. Fuit frugi et pudicus.''<ref>Suetonius, ''De Viris Illustribus,'' [http://books.google.com/books?id=s6b9HA_WE28C&pg=PA497 "The Life of Aulus Persius Flaccus":] "He was very gentle in manner, of virginal modesty and very handsome; and he showed an exemplary devotion to his mother, sister, and aunt. He was good and pure."</ref>
</div>
</blockquote>

===Page xiv===
<blockquote>
and considerable wit; indulged in sarcasm, when in treated with indignity or irreverence.*

In debate, Mr. ''Pendleton'' was more captivating, Mr. WYTHE more argumentative. "''Cæsar ne priorem, Pompeius ve parem,''"<ref>Lucan, [[wikipedia:Pharsalia|''Pharsalia,'']] Book I, line 125: "Caesar could brook no superior, Pompey no equal."</ref> was a question which produced no animosity between them, but which the world never decided. ''Patrick Henry,'' however, gave a remarkable proof of his estimation of Mr. WYTHE, when he said "shall I light up my feeble taper, before the brightness of his noon tide sun? It were to compare, the dull dewdrop of the morning, to the intrinsic beauties of the diamond."

As a judge, Mr. WYTHE was industrious, and attentive to the business of the court. He possessed clear discernment, great powers of investigation, and deep learning, as well in the municipal law of his own country, as in the civil law, and that of nature and nations. Independent in his judiciary, as well as in every other situation, he was inflexibly just and impartial in his decisions; and gave the first judgment that was ever rendered, here, in favour of the right of a British subject to recover, under the treaty of peace, debts due, to him, before the revolution: which, for the moment, created some disgust; but the recollection, of his firmness and integrity, soon wiped off the impression, and restored him to the esteem and affections of his countrymen.

In 1795, he published a work under the title of "[[Decisions of Cases in Virginia by the High Court of Chancery|''Chancery Decisions'']]," in order to review particular sentences of the court of appeals, reversing some decrees made by himself. The book is written in a stiff and affected style; but is very caustic; and animadverts, with great asperity, upon the judgments of the court of appeals.

Mr. WYTHE, even after death, continues to benefit mankind, as a noble example to rising generations, of what virtue, industry and

<hr />
<div style="font-size: 85%;">
* This quality, as well as the intrepidity of his character, was shewn one day in the general court, where lord ''Dunmore'' the governour presided, of course, as chief justice. The occasion was as follows; Mr, WYTHE and Mr. ''Nicholas'' were engaged on one side of a cause, Mr. ''Pendleton'' and Mr. ''Mason'' on the other. The suit being called, Mr. WYTHE urged the trial of it; Mr. ''Pendleton'' wished it continued, as Mr. ''Mason'' was absent, and there were two counsel on the other side, When lord ''Dunmore,'' forgetting the dignity of his situation, had the indelicacy to say to Mr. ''Pendleton'', go on; for you'll be a match for both of them, "''With your lordship's assistance,''" answered Mr. WYTHE, bowing politely. The governour and court felt the stroke; but neither had any thing to say: for the sting was deserved, and the spectators were delighted, at the pang, it produced.
</div>
</blockquote>

===Page xv===

<blockquote>
perseverance, unaided by tutors and adventitious circumstances in the acquisition of knowledge, and promotion of the public service, can effect; evincing the remark of ''Buonaparte,'' that "every man in this world is the child of his own actions."*<ref>[http://books.google.com/books?id=xIdPAAAAMAAJ&pg=PA569 Lieber] (1832) has: "It is, however, indifferent whether Napoleon was descended from an emperor or a cobbler. He himself had little pride of ancestry. In the year 1807, the municipality of Treviso having laid before him a collection of documents which showed the importance of his forefathers in that city, he replied, 'Every man, in this world, is the child of his own actions: my tides, moreover, I hold from the French people.'" This, however, appears to draw upon Sir Walter Scott's [http://books.google.com/books?id=C3tAAAAAYAAJ&pg=PA61 ''Life of Napoleon''] (1827).</ref>

<hr />
<div style="font-size: 85%;">* ''In hoc viro tanta vis animi ingeniique fuit, ut quocumque loco natus esset, fortunam sibi isse facturus fuisse videretur.—Invicti à cupiditatibus animi, and rigidæ innocentiæ; contemptor gratiæ, divitiarum; in parsimonia, in patientia laboris periculique, ferrei prope corporis animique: quem ne senectus quidem, quae solvit amnia, frigerit. Lev. lib. xxxix. cap. xl.''<ref>Livy, [[wikipedia:Ab urbe condita libri|''Ab Urbe Condita Libri'']] (''The History of Rome''), Book 39, chapter 40. Livy says of Marcus Porcius Cato: "This man possessed such ability and force of character that in whatever station he had been born he must have been a fortunate and successful man," and he was "absolute master of his passions, of inflexible integrity, and indifferent alike to wealth and popularity. He lived a life of frugality capable of enduring toil and danger, with a mind and body tempered almost like steel, which not even old age that weakens everything could break."</ref>
</div>
</blockquote>

==See also==

*[[Encyclopaedia Americana]]
*[[Lempriere's Universal Biography]]

==References==
<references />

==External links==

Read this book in [http://books.google.com/books?id=OH00AQAAMAAJ&pg=PR10 Google Books.]

[[Category:Biographies (Articles)]]
[[Category:Descriptions of Wythe]]

Life of Patrick Henry

2015-02-20T14:07:41Z

Jamorris01: /* Page iii */

{{DISPLAYTITLE: ''Sketches of the Life and Character of Patrick Henry''}}
[[File:WirtLifeOfPatrickHenry1817Frontispiece.jpg|thumb|right|400px|Frontispiece from William Wirt's ''Sketches of the Life and Character of Patrick Henry'' (Philadelphia: James Webster, 1817).]]
William Wirt (1772 – 1834) was admitted to the bar in 1792, and began to practice law at Culpeper Courthouse (now Culpeper), Virginia, at the age of 20, residing near Charlottesville.<ref>Joseph Worcester, ed., [http://books.google.com/books?id=saw0AAAAMAAJ&pg=PA326 ''The American Almanac and Repository of Useful Knowledge for the Year 1835''] (Boston: Charles Bowen, 1835) 326-327.</ref> In 1799 he was elected clerk of the House of Delegates, and moved to Richmond. He was made Chancellor of the Eastern District of Virginia in 1802, and proceded to Williamsburg, where he was an "occasional attendant" of the lectures of St. George Tucker at the College of William & Mary.<ref>John P. Kennedy, [http://books.google.com/books?id=I3dXAAAAYAAJ&pg=PA120 ''Memoirs of the Life of William Wirt: Attorney-General of the United States''] (New York: G.P. Putman and Sons, 1872) 1:120.</ref>

Wirt resigned his chancellorship after six months and in 1803 moved to Norfolk. In 1806, he returned to Richmond, where he defended George Wythe Sweeney of the charge of murdering his uncle, [[George Wythe]]. In 1807, President Jefferson requested him for the prosecution of [[wikipedia:Aaron Burr|Aaron Burr]] for treason. In 1816, he was appointed by Madison as the United States Attorney for the District of Virginia, and in 1817, he was appointed the ninth Attorney General of the United States by President Monroe. He was Attorney General for twelve years until 1829, through the administration of President Adams, and afterward retired to Baltimore.<ref>Worcester, ''The American Almanac,'' 327-328.</ref>

Wirt wrote a series of essays for the ''Richmond Enquirer'' which were published as ''The Rainbow'' (1803) and ''The Old Batchelor'' (1810). His popular "Letters of the British Spy" for the ''Virginia Argus'' were collected into book form and published in 1803. ''The Two Principal Arguments in the Trial of Aaron Burr'' was published in 1808.

Wythe makes several appearances in Wirt's ''[[Media:WirtLifeOfPatrickHenry1817.pdf|Sketches of the Life and Character of Patrick Henry]],'' published in 1817, and which Wirt worked on for more than a decade.<ref>William Wirt, ''[[Media:WirtLifeOfPatrickHenry1817.pdf|Sketches of the Life and Character of Patrick Henry]],'' (Philadelphia: James Webster, 1817).</ref> Wirt says of Wythe: "He knew nothing, even in his profession, and never would know any thing of 'crooked and indirect by-ways.' Whatever he had to do, was to be done openly, avowedly and above board. He would not, even at the bar, have accepted of success on any other terms" (p. 48).

A biography of Wirt, ''Memoirs of the Life of William Wirt: Attorney-General of the United States,'' written by John P. Kennedy, was published in 1872.

==Section I==
===Page 15===

<blockquote>
It was now, when all other experiments had failed, that, as a last effort, he determined, of his own accord, to make a trial of the law. No one expected him to succeed in any eminent degree. His unfortunate habits were, by no means, suited to so laborious a profession: and even if it were not too late in life for him to hope
</blockquote>

===Page 16===
<blockquote>
to master its learning, the situation of his affairs forbade an extensive course of reading. In addition to these obstacles, the business of the profession, in that quarter, was already in hands from which it was not easily to be taken; for (to mention no others) judge Lyons, the late president of the court of appeals, was then at the bar of Hanover and the adjacent counties, with an unrivalled reputation for legal learning; and Mr. John Lewis, a man, also, of very respectable legal attainments, occupied the whole field of forensic eloquence. Mr. Henry, himself, seems to have hoped for nothing more from the profession than a scanty subsistence for himself and his family, and his preparation was suited to these humble expectations; for to the study of a profession, which is said to require the lucubrations of twenty years, Mr. Henry devoted not more than six weeks.* On this preparation, however, he obtained a license to practise the law. How he passed with two of the examiners, I have no intelligence; but he himself used to relate his interview with the third. This was no other than Mr. John Randolph, who was afterwards the king's attorney general for the colony; a gentleman of the most courtly elegance of person and manners, a polished wit, and a profound lawyer. At first, he was so much shocked by Mr. Henry's very ungainly figure and address, that he refused to examine him: understanding, however, that he had already obtained two signatures, he entered, with manifest reluctance, on the business. A very short time was sufficient to satisfy him of the erroneous conclusion which he had drawn from the exterior of the candidate. With evident marks

<div style="font-size: 85%;">* So say Mr. Jefferson and judge Winston. Mr. Pope says nine months. Col. Meredith and Capt. Dabney, six or eight months. Judge Tyler, one month; and he adds, "This I had from his own lips. In this time, he read Coke upon Littleton, and the Virginia laws."
</div>
</blockquote>

===Page 17===

<blockquote>
of increasing surprise (produced no doubt by the peculiar texture and strength of Mr. Henry's style, and the boldness and originality of his combinations) he continued the examination for several hours: interrogating the candidate, not on the principles of municipal law, in which he no doubt soon discovered his deficiency, but on the laws of nature and of nations, on the policy of the feudal system, and on general history, which last he found to be his strong hold. During the very short portion of the examination which was devoted to the common law, Mr. Randolph dissented, or affected to dissent, from one of Mr. Henry's answers, and called upon him to assign the reasons of his opinion. This produced an argument; and Mr. Randolph now played off on him, the same arts which he himself, had so often practised on his country customers; drawing him out by questions, endeavouring to puzzle him by subtleties, assailing him with declamation, and watching continually, the defensive operations of his mind. After a considerable discussion, he said, "you defend your opinions well, sir; but now to the law and to the testimony." Hereupon he carried him to his office, and opening the authorities, said to him, "behold the force of natural reason; you have never seen these books, nor this principle of the law; yet you are right and I am wrong; and from the lesson which you have given me (you must excuse me for saying it) I will never trust to appearances again. Mr. Henry, if your industry be only half equal to your genius, I augur that you will do well, and become an ornament and an honour to your profession." It was always Mr. Henry's belief that Mr. Randolph had affected this difference of opinion, merely to afford him the pleasure of a triumph, and to make some atonement for the wound which his first repulse had in-
</blockquote>

===Page 18===

<blockquote>
flicted. Be this as it may, the interview was followed by the most marked and permanent respect on the part of Mr. Randolph, and the most sincere good will and gratitude, on that of Mr. Henry.*

It was at the age of four and twenty that Mr. Henry obtained his license. Of the science of law, he knew almost nothing: of the practical part he was so wholly ignorant, that he was not only unable to draw a declaration or a plea, but incapable it is said, of the most common and simple business of his profession, even of the mode of ordering a suit, giving a notice, or making a motion in court. It is not at all wonderful therefore, that such a novice, opposed as he was by veterans, covered with the whole armour of the law, should linger in the back ground, for three years.

<div style="font-size: 85%;">* This account of Mr. Henry's examination is given by judge Tyler, who states it as coming from Mr. Henry himself. It was written before I had received the following statement from Mr. Jefferson; and although there is some difference in the circumstances, it has not been thought important enough to make an alteration of the text necessary. This is Mr. Jefferson's statement. "In the spring of 1760, he came to Williamsburg to obtain a license as a lawyer, and he called on me at college. He told me he had been reading law only six weeks. Two of the examiners, however, Peyton and John Randolph, men of great facility of temper, signed his license with as much reluctance as their dispositions would permit them to show. Mr. Wythe absolutely refused. Robert C.Nicholas refused also at first; but on repeated importunities and promises of future reading, he signed. These facts I had afterwards from the gentlemen themselves; the two Randolphs acknowledging he was very ignorant of the law, but that they perceived him to be a young man of genius, and did not doubt that he would soon qualify himself.
</div>
</blockquote>

==Section II==
===Page 46===

<blockquote>
Edward Pendleton, the protege of the speaker Robinson, was also, among the most prominent members in the house. He had, in a great measure, overcome the disadvantages of an extremely defective education, and, by the force of good company and the study of correct authors, had attained to great accuracy and perspicuity of style. The patronage of the speaker had introduced him to the first circles, and his manners were elevated, graceful and insinuating. His person was spare, but well proportioned; and his countenance one of the finest in the world: serene—contemplative—benignant—with
</blockquote>

===Page 47===

<blockquote>

that expression of unclouded intelligence and extensive reach, which seemed to denote him capable of any thing, that could be effected by the power of the human mind. His mind itself, was of a very fine order. It was clear, comprehensive, sagacious and correct; with a most acute and subtle faculty of discrimination; a fertility of expedient which could never be exhausted; a dexterity of address which never lost an advantage and never gave one; and a capacity for continued and unremitting application, which was perfectly invincible. As a lawyer and a stateman, he had few equals; no superiors. For parliamentary management, he was without a rival. With all these advantages of person, manners, address and intellect, he was also a speaker of distinguished eminence. He had that silver voice* of which Cicero makes such frequent and honourable mention—an articulation uncommonly distinct—a perennial stream of transparent, cool and sweet elocution; and the power of presenting his arguments with great simplicity, and striking effect. He was always graceful, argumentative, persuasive: never vehement, rapid, or abrupt. He could instruct and delight; but he had no pretensions to those high powers which are calculated to "shake the human soul." George Wythe, also, a member of the House, was confessedly among the first in point of abilities. There is a story circulated, as upon his own authority, that he was initiated by his mother, in the Latin classics.&dagger; Be this as it may, it is certain that he had raised upon the original foundation, whencesoever acquired, a superstructure of ancient literature which has been rarely equalled in this country. He was perfectly familiar with the authors of Greece

<div style="font-size: 85%;">
:::::* Vox Argentea, see the Brutus, passim.

:::::&dagger; I heard it from the late judge Nelson, his relation.
</div>
</blockquote>

===Page 48===

<blockquote>
and Rome; read them with the same ease and quoted them with the same promptitude that he could the authors in his native tongue. He carried his love of antiquity rather too far; for he frequently subjected himself to the charge of pedantry; and his admiration of the gigantic writers of Queen Elizabeth's reign, had unfortunately betrayed him into an imitation of their quaintness. Yet, with all this singularity of taste, he was a man of great capacity; powerful in argument; frequently pathetic; and elegantly keen and sarcastic in repartee. He was long the rival of Mr. Pendleton at the bar, whom he equalled as a common lawyer, and greatly surpassed as a civilian: but he was too open and direct in his conduct, and possessed too little management either with regard to his own temper or those of other men, to cope with so cool and skilful an adversary. Though a full match for Mr. Pendleton in the powers of fair and solid reasoning, Mr. Pendleton could whenever he pleased, and would whenever it was necessary, tease him with quibbles, and vex him with sophistries, until he destroyed the composure of his mind and robbed him of his strength. No man was ever more entirely destitute of art than Mr. Wythe. He knew nothing, even in his profession, and never would know any thing of "crooked and indirect by-ways." Whatever he had to do, was to be done openly, avowedly and above board. He would not, even at the bar, have accepted of success on any other terms. This simplicity and integrity of character, although it sometimes exposed him to the arts and sneers of the less scrupulous, placed him before his countrymen, on the ground which Caesar wished his wife to occupy; he was not only pure, but above all suspicion. The unaffected sanctity of his principles, united with his modesty and simple elegance of manners,
</blockquote>

===Page 49===

<blockquote>
his attic wit, his stores of rare knowledge, his capacity for business, and the real power of his intellect, not only raised him to great eminence in public, but rendered him a delightful companion, and a most valuable friend.
</blockquote>

==Section II==
===Page 60===

<blockquote>
"Mr. Henry moved and Mr. Johnston seconded these resolutions successively. They were opposed by Messrs. Randolph, Bland, Pendleton, Wythe, and all the old members whose influence in the house had, till then, been unbroken. They did it, not from any question of our rights, but on the ground that the same sentiments had been, at their preceding session, expressed in a more conciliatory form, to which the answers were not yet received. But torrents of sublime eloquence from Henry j backed by the solid reasoning of Johnston, pre-
</blockquote>

===Page 61===

<blockquote>
vailed. The last, however, and strongest resolution was carried but by a single vote. The debate on it was most bloody. I was then but a student, and stood at the door of communication between the house and the lobby (for as yet there was no gallery,) during the whole debate and vote; and I well remember that, after the numbers on the division were told and declared from the chair, Peyton Randolph (the attorney general) came out at the door where I was standing, and said as he entered the lobby,'by God I would have given 500 guineas for a single vote:' for one vote would have divided the house, and Robinson was in the chair, who he knew would have negatived the resolution. Mr. Henry left town that evening; and the next morning before the meeting of the house, col. Peter Randolph, then of the council, came to the hall of burgesses, and sat at the clerk's table till the house bell rang, thumbing over the volumes of journals, to find a precedent of expunging a vote of the house, which he said, had taken place while he was a member or clerk of the house, I do not recollect which. I stood by him at the end of the table, a considerable part of the time, looking on, as he turned over the leaves; but I do not recollect whether he found the erasure. In the mean time, some of the timid members who had voted for the strongest resolution, had become alarmed; and as soon as the house met, a motion was made and carried to expunge it from the journals. There being at that day but one printer, and he entirely under controul of the governor, I do not know that this resolution ever appeared in print. I write this from memory: but the impression made on me at the time was such as to fix the facts indelibly in my mind. I suppose the original journal was among those destroyed by the British, or its obliterated face might be ap-
</blockquote>

===Page 62===

<blockquote>
pealed to. And here I will state that Burk's statement of Mr. Henry's consenting to withdraw two resolutions, by way of compromise with his opponents, is entirely erroneous."
</blockquote>

===Page 64===

<blockquote>
"By these resolutions," says Mr. Jefferson, "and his manner of supporting them, Mr. Henry took the lead out of the hands of those who had, theretofore, guided the proceedings of the house; that is to say, of Pendleton, Wythe, Bland, Randolph." It was, indeed, the measure which raised him to the zenith of his glory. He had never before had a subject which entirely matched his genius, and was capable of drawing out all the powers of his mind. It was remarked of him, throughout his life, that his talents never failed to rise with the occasion, and in proportion with the resistance which he had to encounter. The nicety of the vote on his last resolution, proves that this was not a time to hold in reserve, any part of his forces. It was, indeed, an alpine passage, under circumstances even more unpropitious than those of Hanibal; for he had not only to fight, hand to hand, the powerful party who were already in possession of the heights, but at the same instant,
</blockquote>

===Page 65===

<blockquote>
to cheer and animate the timid band of followers, that were trembling, fainting, and drawing back, below him. It was an occasion that called upon him to put forth all his strength, and he did put it forth, in such a manner, as man never did before. The cords of argument, with which his adversaries frequently flattered themselves they had bound him fast, became packthreads in his hands. He burst them, with as much ease, as the unshorn Sampson did the bands of the Philistines. He seized the pillars of the temple, shook them terribly, and seemed to threaten his opponents with ruin. It was an incessant storm of lightning and thunder, which struck them aghast. The faint-hearted gathered courage from his countenance, and cowards became heroes, while they gazed upon his exploits.
</blockquote>

==Section III==
===Page 70===

<blockquote>
At this bar, he entered into competition with all the first legal characters in the colony, some of whom had been educated at the Temple. Mr. Pendleton and Mr. Wythe have been already mentioned: but in addition to these he had to encounter Mr. John Randolph, Mr. Thompson Mason, Mr. Robert C. Nicholas, Mr. Mer-
</blockquote>

===Page 71===

<blockquote>
cer, Mr. Blair, and Mr. Jefferson; all of them masters of the learning of their profession, and all of them, men of preeminent abilities.
</blockquote>

===Page 85===

<blockquote>
The house of burgesses of Virginia, which had led the opposition to the stamp act, kept their high ground during the whole of the ensuing contest. Mr. Henry, having removed again from Louisa to his native county,
</blockquote>

===Page 86===

<blockquote>
in the year 1767 or 1768, continued a member of that house, till the close of the revolution; and there could be no want of boldness in any body, of which he was a member. The session of 1768-9, was marked by a set of resolutions so strong as to have excited even the amiable and popular Bottetourt to displeasure. By those resolutions they re-asserted, in the most emphatic terms, the exclusive right of the colony to tax themselves in all cases whatever; complained of the recent acts of parliament, as so many violations of the British constitution; and remonstrated vigorously, against the right of transporting the free-born subjects of these colonies to England, to take their trial before prejudiced tribunals, for offences alleged to be committed in the colonies. The tradition with regard to these resolutions, is, that they were agreed to in a committee of the whole on one day, but not reported to the house, with the view of preventing their appearance on the journal of the next day, before they could be completely passed through the forms of the house; apprehending, from the fate of the Massachusetts legislature, that a knowledge of these resolutions on the part of the governor, would produce an immediate dissolution of the house. When the house rose for the evening, however, the fact of their having passed such resolutions was whispered to the governor; and he endeavoured in vain, to procure a copy of them from the clerk.* On the next day, the house foreseeing the event, met on the instant of the ringing of the bell, and with closed doors, received the report of their resolutions, considered, adopted, and ordered them to be entered upon their journals; which they had scarcely done, when they were summoned to attend the governor, and were dissolved. "Mr. Speaker," said he, "and

<div style="font-size: 85%;">
:::::* Mr. Wythe.
</div>
</blockquote>

===Page 87===

<blockquote>
gentleman of the house of representatives, I have heard of your resolves, and augur ill of their effects; you have made it my duty to dissolve you, and you are accordingly dissolved."
</blockquote>

===Page 125===

<blockquote>
The constitution of this committee proves, that in those days of genuine patriotism, there existed a mutual and noble confidence, which deemed the opponents of a measure no less worthy than its friends, to assist in its execution. A correspondent,* who bore himself a most distinguished part in our revolution, in speaking of the gentlemen whom I have just named as having opposed Mr. Henry's resolutions, and of Mr. Wythe who acted with them, says—" these were honest and able men, who had begun the opposition on the same grounds, but with a moderation more adapted to their age and experience. Subsequent events favoured the bolder spirits of Henry, the Lees, Pages, Mason, &c. with whom I went in all points. Sensible, however, of the importance of unanimity among our constituents, although we often wished to have gone on faster, we slackened our pace, that our less ardent colleagues might keep up with us; and they on their part differing nothing from us in principle, quickened their gait somewhat beyond that which their prudence might, of itself, have advised, and thus consolidated the phalanx which breasted the power of Britain. By this harmony of the bold with the cautious, we advanced, with our constituents, in undivided mass, and with fewer examples of separation than, perhaps, existed in any other part of the union."

<div style="font-size: 85%;">
:::::* Mr. Jefferson
</div>
</blockquote>

==Section VI==

===Page 193===

<blockquote>
On the fifteenth of May, Mr. Cary reported from the committee of the whole house on the state of the colony, the following preamble and resolutions, which were unanimously adopted:

"Forasmuch as all the endeavours of the United Colonies, by the most decent representations and petitions to the king and parliament of Great Britain, to restore peace and security to America under the British government, and a re-union with that people upon just and liberal terms, instead of a redress of grievances, have produced, from an imperious and vindictive administration, increased insult, oppression, and a vigorous attempt to effect our total destruction. By a late act, all these colonies are declared to be in rebellion, and out of the protection of the British crown; our properties subjected to confiscation; our people, when captivated, compelled to join in the murder and plunder of their relations and countrymen; and all former rapine and oppression of Americans declared legal and just. Fleets and armies are raised, and the aid of foreign troops engaged to assist these destructive purposes. The king's representative in this colony hath not only withheld all the powers of government, from operating for our safety, but, having retired on board an armed ship, is carrying on a piratical and savage war against us, tempting our slaves, by every artifice, to resort to him, and training and employing them against their
</blockquote>

===Page 194===

<blockquote>
masters. In this state of extreme danger, we have no alternative left, but an abject submission to the will of those overbearing tyrants, or a total separation from the crown and government of Great Britain: Uniting and exerting the strength of all America for defence, and forming alliances with foreign powers for commerce and aid in war. Wherefore, appealing to the Searcher of hearts for the sincerity of former declarations, expressing our desire to preserve the connexion with that nation, and that we are driven from that inclination by their wicked councils, and the eternal laws of self-preservation,

"Resolved, ''unanimously,'' That the delegates appointed to represent this colony in general congress, be instructed to propose to that respectable body, TO DECLARE THE UNITED COLONIES FREE AND INDEPENDENT STATES, absolved from all allegiance to, or dependence upon, the crown or parliament of Great Britain; and that they give the assent of this colony to such declaration, and to whatever measures may be thought proper and necessary by the congress for forming foreign alliances, and A CONFEDERATION OF THE COLONIES, at such time, and in the manner, as to them shall seem best. Provided, that the power of forming government for, and the regulations of, the internal concerns of each colony, be left to the respective colonial legislatures.

"Resolved, ''unanimously,'' That a committee be appointed to prepare A DECLARATION OF RIGHTS, and such a plan of government as will be most likely to maintain peace and order in this colony, and secure substantial and equal liberty to the people."

This measure was followed by the most lively demonstrations of joy. The spirit of the times is interestingly
</blockquote>

===Page 195===

<blockquote>
manifested by the following paragraph from Purdie's paper of the 17th of May, which immediately succeeds the annunciation of the resolutions.

"In consequence of the above resolutions, universally regarded as the only door which will lead to safety and prosperity, some gentlemen made a handsome collection for the purpose of treating the soldiery, who next day were paraded in Waller's grove, before brigadier-general Lewis, attended by the gentlemen of the committee of safety, the members of the general convention, the inhabitants of this city, &c. &c. The resolutions being read aloud to the army, the following toasts were given, each of them accompanied by a discharge of the artillery and small arms, and the acclamations of all present:—

"1. The American Independent States.

"2. The grand Congress of the United States, and their respective legislatures.

"3. General Washington, and victory to the American arms.

"The Union Flag of the American states waved upon the capitol during the whole of this ceremony; which being ended, the soldiers partook of the refreshments prepared for them by the affection of their countrymen, and the evening concluded with illuminations, and other demonstrations of joy; every one seeming pleased that the domination of Great Britain was now at an end, so wickedly and tyrannically exercised for these twelve or thirteen years past, notwithstanding our repeated prayers and remonstrances for redress."

The committee appointed to prepare the declaration and plan of government, called for by the last resolution, were the following: Mr. Archibald Cary, Mr. Meriwe-
</blockquote>

===Page 196===

<blockquote>
ather Smith, Mr. Mercer, Mr. Henry Lee, Mr. Treasurer, Mr. Henry, Mr. Dandridge, Mr. Gilmer, Mr. Bland, Mr. Digges, Mr. Carrington, Mr. Thomas Ludwell Lee, Mr. Cabell, Mr. Jones, Mr. Blair, Mr. Fleming, Mr. Tazewell, Mr. Bichard Cary, Mr. Bullitt, Mr. Watts, Mr. Banister, Mr. Page, Mr. Starke, Mr. David Mason, Mr. Adams, Mr. Read, and Mr. Thomas Lewis; to whom were afterwards successively added, Mr. Madison, Mr. Rutherford, Mr. Watkins, Mr. George Mason, Mr. Harvie, Mr. Curie, and Mr. Holt.

On Wednesday, the 12th of June following, that declaration of rights which stands prefixed to our statutes, was reported and adopted without a dissenting voice; as was also, on Saturday the 29th of the same month, the present plan of our government.*

<div style="font-size: 85%;">
* The striking similitude between the recital of wrongs prefixed to the constitution of Virginia, and that which was afterwards prefixed to the declaration of independence of the United States, is of itself sufficient to establish the fact that they are from the same pen. But the constitution of Virginia preceded the declaration of independence, by nearly a month; and was wholly composed and adopted while Mr. Jefferson is known to have been out of the state, attending the session of congress at Philadelphia From these facts alone, a doubt might naturally arise whether he was, as he has always been reputed, the author of that celebrated instrument, the declaration of American independence, or at least a recital of grievances which ushers it in; or whether this part of it at least, had not been borrowed from the preamble to the constitution of Virginia. To remove this doubt, it is proper to state, that there now exists among the archives of this state, an original rough draught of a constitution for Virginia, in the hand-writing of Mr. Jefferson, containing this identical preamble, and which was forwarded by him from Philadelphia, to his friend Mr. Wythe, to be submitted to the committee of the house of delegates. The body of the constitution is taken principally from a plan proposed by Mr. George Mason; and had been adopted by the committee before the arrival of Mr. Jefferson's plan: his preamble however, was prefixed to the instrument; and some of the modifications proposed by him, introduced into the body of it.
</div>
</blockquote>

==Section VII==
===Page 237===

<blockquote>
The force of this figure, and the energy with which it was brought out, are said to have produced an effect, that made the house start simultaneously. It continued to be admired, long after the occasion which gave it birth had passed away, and was frequently quoted by Mr. Wythe to his students, while professor of law at William and Mary College, as a happy specimen of those valuable figures, which unite the beauty of decoration with the effect of argument.
</blockquote>

===Page 259===

<blockquote>
On the fourth of December in the same year,<ref>1786.</ref> Mr. Henry was appointed by the legislature, one of seven deputies from this commonwealth to meet a convention proposed to be held in Philadelphia, on the following May, for the purpose of revising the federal constitution. On this list of deputies, his name stands next to that of him, who stood of right before all others in America; the order of appointment, as exhibited by the
</blockquote>

===Page 260===

<blockquote>
journal, being as follows: George Washington, Patrick Henry, Edmund Randolph, John Blair, James Madison, George Mason, and George Wythe. The same cause, however, which had constrained Mr. Henry's retirement from the executive chair of the state, disabled him now from obeying this honourable call of his country. On his resigning the government, he retired to Prince Edward county, and endeavoured to cast about for the means of extricating himself from his debts. At the age of fifty years, worn down by more than twenty years of arduous service in the cause of his country, eighteen of which had been occupied by the toils and tempests of the revolution, it was natural for him to wish for rest, and to seek some secure and placid port in which he might repose himself from the fatigues of the storm. This however was denied him; and after having devoted the bloom of youth and the maturity of manhood to the good of his country, he had now in his old age to provide for his family.
</blockquote>

==Section VIII==
===Page 263===

<blockquote>
THE convention met in Richmond on the 2d of June, 1788, and exhibited such an array of variegated talents, as had never been collected before within the limits of the state, and such an one as it may well be feared we shall never see again. A few of the most eminent of these statesmen, are still alive; of whom, therefore, delicacy forbids us to speak as they deserve. Their powers however, and the peculiar characters of their intellectual excellence are so well known, that their names will be sufficient to speak their respective eulogies. We may mention, therefore, Mr. Madison, the late president of the United States; Mr. Marshall, the chief justice; and Mr. Monroe, now the president. What will the reader think of a body, in which men like these were only among their equals! Yet such is the fact; for there, were those sages of other days, Pendleton and Wythe; there was seen displayed, the Spartan vigour and compactness of George Nicholas; and there shone the radiant genius and sensibility of Grayson; the Roman energy and the Attic wit of George Mason was there; and there, also, the classic taste and harmony of Edmund Randolph; "the splendid conflagration" of the high minded Innis; and the matchless eloquence of the immortal Henry!*

<div style="font-size: 85%;">
* The debates and proceedings of this convention, by Mr. David Robertson of Petersburg, have passed through two editions; yet it is believed, that their circulation has been principally confined to Virginia; and even in this state, from the rapid progress of our population, that book is supposed to be in, comparatively, few hands. Hence it has been thought proper to give a
</div>
</blockquote>

===Page 264===

<blockquote>
It was not until the 4th, that the preliminary arrangements for the discussion were settled. Mr. Pendleton had been unanimously elected the president of the convention; but it having been determined that the subject should be debated in committee of the whole, the house on that day, resolved itself into committee, and the venerable Mr. Wythe was called to the chair. In conformity with the order which had been taken, to discuss the constitution, clause by clause, the clerk now read the preamble and the two first sections; and the debate was opened by Mr. George Nicholas. He confined himself strictly to the sections under consideration, and maintained their policy with great cogency of argument. Mr. Henry rose next, and soon demonstrated that his excursions were not to be restrained by the rigour of rules. Instead of proceeding to answer Mr. Nicholas, he commenced by sounding an alarm calculated to produce a most powerful impression. The effect, however, will be entirely lost upon the reader, unless he shall associate with the speech, which I am about to lay before him, that awful solemnity and look of fearful portent, by which Mr. Henry could imply

<div style="font-size: 85%;">
short sketch of Mr. Henry's course in this body. It ought to be premised, however, that the published debates have been said by those who attended the convention, to present but an imperfect view of the discussions of that body. In relation to Mr. Henry, they are confessedly imperfect; the reporter having sometimes dropped him in those passages, in which the reader would be most anxious to follow him. From the skill and ability of the reporter, there can be no doubt that the substance of the debates, as well as their general course, are accurately preserved. The work is, therefore, a valuable repository of the arguments by which the constitution was opposed on one hand, and supported on the other; but it must have been utterly impossible for a man, who possesses the sensibility and high relish for eloquence which distinguish the reporter, not to have been so far transported by the excursions of Mr. Henry's genius, as sometimes, unconsciously, to have laid down his pen.
</div>
</blockquote>

===Page 265===

<blockquote>
even more than he expressed; and that slow, distinct, emphatic enunciation, by which he never failed to move the souls of his hearers.
</blockquote>

===Page 270===

<blockquote>
He then proceeded to set forth, in terrible array, his various objections to the constitution; not confining himself to the clauses under debate, but ranging through the whole instrument, and passing from objection to objection, as they followed each other in his mind. This departure from the rule of the house, although at first view censurable, was insisted upon by himself and his colleagues, as being indispensable to a just examination of the particular clause under consideration; because the policy or impolicy of any provision, did not always depend upon itself alone, but on other provisions with which it stood connected, and indeed, upon the whole system of powers and checks that were associated with it in the same instrument, and thus formed only parts of one entire whole. The truth of this position, in relation to some of the provisions, could not be justly denied; and a departure once made from the rigour of the rule, the debate became at large, on every part of the constitution; the disputants at every stage, looking forward and backward throughout the whole instrument, without any controul other than their own discretion. Thus freed from restraints, under which his genius was at all times impatient, uncoupled and let loose to range the whole field at pleasure, Mr. Henry seemed to have recovered, and to luxuriate in all the powers of his youth. He had, indeed, occasion for them all; for while he was supported by only three effective
</blockquote>

===Page 271===

<blockquote>
auxiliaries, opposed to him stood a phalanx, most formidable both for talents and weight of character; and of several of whom it might be said, with truth, that each was " in himself a host;" for at the head of the opposing ranks stood Mr. Pendleton—Mr. Wythe—Mr. Madison—Mr. Marshall—Mr. Nicholas—Mr. Randolph—Mr. Innis—Mr. Henry Lee—and Mr. Corbin. Fearful odds! and such as called upon him for the most strenuous exertion of all his faculties. Nor did he sink below the occasion. For twenty days, during which this great discussion continued without intermission, his efforts were sustained, not only with undiminished strength, but with powers which seemed to gather new force from every exertion. All the faculties useful for debate were found united in him, with a degree of perfection, in which they are rarely seen to exist, even separately, in different individuals: irony, ridicule, the purest wit, the most comic humour, exclamations that made the soul start, the most affecting pathos, and the most sublime apostrophes, lent their aid to enforce his reasoning, and to put to flight the arguments of his adversaries.
</blockquote>

==CONCLUSION==
===Page 418===

<blockquote>
3. So also in the state convention, the same year, the old patriotic leaders were disposed still to rely on the efficacy of petitions, memorials, and remonstrances; it was Mr. Henry who proposed, and in spite of their opposition (which was of so strenuous and serious a character, that one of them in making it. is said to have shed tears most profusely) carried the
</blockquote>

===Page 419===

<blockquote>
bold measure of arming the militia. This was not dictated by the people. The fact was, that at that day, the people placed themselves in the hands of their more enlightened friends; they never ventured to prescribe either the time, the manner, or the measure of resistance; and there can be no room for a candid doubt that, but for the bold spirit and overpowering eloquence of Patrick Henry, the people would have followed the pacific counsels of Mr. Randolph, Mr. Nicholas, Mr. Pendleton, Mr. Wythe, and other men of acknowledged talents and virtue. It was Mr. Henry, therefore, who led both the people and their former leaders. The latter, indeed, came on so reluctantly at first, that they may be said to have been rather dragged along, than led; they did come however, and acquiring warmth by their motion, made ample amends thereafter, for their early hesitation.*

<div style="font-size: 85%;">
* The author has no intention, by these remarks, to impair in the smallest degree, the well-earned reputation of those veteran statesmen. They had commenced the opposition to the stamp act, and the other obnoxious acts of the British parliament, before Mr. Henry made his appearance as a politician; they had commenced too, on the same grounds, and would, probably, at some later period, have been wrought up by their own principles and feelings, to a forcible resistance to those measures. But the statements in the text are unquestionably correct: they did not approve of the immediate application of force; Mr. Henry's policy was condemned by them as rash and precipitate. The author is in possession of an original letter from one of these statesmen, in which Mr. Henry is expressly and directly accused of having precipitated the revolution, against the judgment of the older and cooler patriots. "Events, however," as we have seen, "favoured the bolder measure of Mr. Henry," and proved his policy to be the best.
</div>
</blockquote>

==APPENDIX==
===Page i===

<blockquote>
<center>
NOTE A.
</center>

IT appears by the Journal of the House of Burgesses, of the 14th November 1764, (page 38), that a committee was appointed to draw up the following [[Remonstrance to the House of Commons|address, memorial and remonstrance]]; which committee was composed of the following persons, to wit: Mr. Attorney (Peyton Randolph), Mr. Richard Henry Lee, Mr. Landon Carter, Mr. Wythe, Mr. Edmund Pendleton, Mr. Benjamin Harrison, Mr. Cary and Mr. Fleming: to whom, afterward, Mr. Bland was added. The address to the King is from the pen of the Attorney*

"To the King's Most Excellent Majesty.

"MOST GRACIOUS SOVEREIGN,

"We, your Majesty's dutiful and loyal subjects, the Council and Burgesses of your ancient colony and dominion of ''Virginia,'' now met in general assembly, beg leave to assure your Majesty of our firm and inviolable attachment to your sacred person and government; and as your faithful subjects, here, have at all times been zealous to demonstrate this truth, by a ready compliance with the royal requisitions during the late war, by which a heavy and oppressive debt of near half a million hath been incurred, so at this time they implore permission to approach the throne with humble confidence, and to entreat that your Majesty will be graciously pleased to protect your people of this colony in the enjoyment of their ancient and inestimable right of being governed by such laws, respecting their internal polity and taxation, as are derived from their own consent, with the approbation of their Sovereign or his substitute: a right which, as men and descendants of ''Britons,'' they have ever quietly possessed, since, first, by royal permission and encouragement, they left the mother kingdom to extend its commerce and dominion.

"Your Majesty's dutiful subjects of ''Virginia'' most humbly and unanimously hope, that this invaluable birthright, descended to them from their ancestors, and in which they have been protected by your royal predecessors, will not be suffered to receive an injury, under the reign of your sacred Majesty, already so illustriously distinguished by your gracious attention to the liberties of the people.

"That your Majesty may long live to make nations happy, is the ardent prayer of your faithful subjects, the Council and Burgesses of ''Virginia.''"

<div style="font-size: 85%;">
:::::* On the authority of Mr. Jefferson.
</div>
</blockquote>

===Page iii===

<blockquote>
Mr. Wythe was the author of the following [[Remonstrance to the House of Commons|remonstrance]]. "It was done with so much freedom that, as he told me, himself, his colleagues of the committee shrunk from it as wearing the aspect of treason, and smoothed its features to its present form."*

<center>
"To the Honourable the Knights, Citizens, and Burgesses of ''Great Britain,''<br />in Parliament assembled:<br />"''The Remonstrance of the Council and Burgesses of'' Virginia.
</center>

"It appearing, by the printed votes of the house of commons of ''Great Britain'' in parliament assembled, that in a committee of the whole house, the 17th day of ''March'' last, it was resolved, that towards defending, protecting, and securing the ''British'' colonies and plantations in ''America,'' it may be proper to charge certain stamp duties in the said colonies and plantations; and it being apprehended that the same subject, which was then declined, may be resumed and further pursued in a succeeding session, the council and burgesses of Virginia, met in general assembly, judge it their indispensable duty, in a respectful manner, but with decent firmness, to remonstrate against such

<div style="font-size: 85%;">
:::::* Mr. Jefferson.
</div>
</blockquote>

===Page iv===

<blockquote>
a measure; that at least a cession of those rights, which in their opinion must be infringed by that procedure, may not be inferred from their silence, at so important a crisis.

"They conceive it is essential to ''British'' liberty, that laws, imposing tales on the people, ought not to be made without the consent of representatives chosen by themselves; who, at the same time that they are acquainted with the circumstances of their constituents, sustain a portion of the burthen laid on them. The privileges, inherent in the persons who discovered and settled these regions, could not be renounced or forfeited by their removal hither, not as vagabonds or fugitives, but licensed and encouraged by their prince, and animated with a laudable desire of enlarging the ''British'' dominion, and extending its commerce: on the contrary, it was secured to them and their descendants, with all other rights and immunities of British subjects, by a royal charter, which hath been invariably recognised and confirmed by his Majesty and his predecessors, in their commissions to the several governors, granting a power, and prescribing a form of legislation; according to which, laws for the administration of justice, and for the welfare and good government of the colony, have been hitherto enacted by the governor, council, and general assembly; and to them, requisitions and applications for supplies have been directed by the crown. As an instance of the opinion which former sovereigns entertained of these rights and privileges, we beg leave to refer to three acts of the general assembly, passed in the 32d year of the reign of king ''Charles'' II. (one of which is entitled'' 'An act for raising a public revenue for the better support of the government of his Majesty's colony of Virginia,' ''imposing several duties for that purpose), which being thought absolutely necessary, were prepared in ''England,'' and sent over by their then governour, the lord ''Culpeper,'' to be passed by the general assembly, with a full power to give the royal assent thereto; and which were accordingly passed, after several amendments were made to them here: thus tender was his Majesty of the rights of his American subjects; and the remonstrants do not discern by what distinction they can be deprived of that sacred birthright and most valuable inheritance by their fellow subjects, nor with what propriety they can be taxed or affected in their estates, by the parliament, wherein they are not, and indeed cannot, constitutionally, be represented.

"And if it were proper for the parliament to impose taxes on the colonies at all, which the remonstrants take leave to think would be inconsistent with the fundamental principles of the constitution, the exercise of that power, at this time, would be ruinous to Virginia, who exerted herself in the late war, it is feared beyond her strength, insomuch that to redeem the money granted for that exigence, her people are taxed for several years to come: this, with the larger expenses incurred for defending the frontiers against the restless Indians, who have infested her as much since the peace as before, is so grievous, that an increase of the burthen would be intolerable: especially as the people are very greatly distressed already from the scarcity of circulating cash amongst them, and from the little value of their staple at the British markets.

"And it is presumed, that adding to that load which the colony now labours under, will not be more oppressive to her people than destructive of the interest of Great Britain.— for the plantation trade, confined as it is to the mother country, hath been a principal means of multiplying and enriching her inhabitants; and, if not too much discouraged, may prove an inexhaustible source of treasure to the nation. For satisfaction in this point, let the present state of the British fleets and trade be compared with what they were before the settlement of the colonies; and let it be considered, that whilst property in land may be acquired on very easy terms, in the vast uncultivated territory of North America, the colonists will be mostly, if not wholly, employed in agriculture; whereby the exportation of their commodities to Great Britain, and the consumption of manufactures supplied from thence, will be daily increasing. But this most desirable connexion between Great Britain and her colonies, supported by such a happy intercourse of reciprocal benefits as is continually advancing the prosperity of both, must be interrupted, if the people of the latter, reduced to extreme poverty, should be compelled to manufacture those articles they have been hitherto furnished with, from the former.

"From these considerations, it is hoped that the honourable house of commons will not prosecute a measure which those who may suffer under it, cannot but look upon as fitter for exiles driven from their native country, after ignominiously forfeiting her favours and protection, than for the posterity of Britons, who have at all times been forward to demonstrate all due reverence to the mother kingdom; and are so instrumental in promoting her glory and felicity; and that British patriots will never consent to the exercise of any anticonstitutional power, which, even in this remote corner, may be dangerous in its example to the interiour parts of the British empire, and will certainly be detrimental to its commerce."
</blockquote>

==See also==

*[[Wythe's Lost Papers]]

==References==
<references/>

==External links==

Read this book in [http://books.google.com/books?id=mrcEAAAAYAAJ&printsec=frontcover Google Books.]

[[Category:Biographies]]
[[Category:Descriptions of Wythe]]

Life of Patrick Henry

2015-02-20T14:07:06Z

Jamorris01: /* Page i */

{{DISPLAYTITLE: ''Sketches of the Life and Character of Patrick Henry''}}
[[File:WirtLifeOfPatrickHenry1817Frontispiece.jpg|thumb|right|400px|Frontispiece from William Wirt's ''Sketches of the Life and Character of Patrick Henry'' (Philadelphia: James Webster, 1817).]]
William Wirt (1772 – 1834) was admitted to the bar in 1792, and began to practice law at Culpeper Courthouse (now Culpeper), Virginia, at the age of 20, residing near Charlottesville.<ref>Joseph Worcester, ed., [http://books.google.com/books?id=saw0AAAAMAAJ&pg=PA326 ''The American Almanac and Repository of Useful Knowledge for the Year 1835''] (Boston: Charles Bowen, 1835) 326-327.</ref> In 1799 he was elected clerk of the House of Delegates, and moved to Richmond. He was made Chancellor of the Eastern District of Virginia in 1802, and proceded to Williamsburg, where he was an "occasional attendant" of the lectures of St. George Tucker at the College of William & Mary.<ref>John P. Kennedy, [http://books.google.com/books?id=I3dXAAAAYAAJ&pg=PA120 ''Memoirs of the Life of William Wirt: Attorney-General of the United States''] (New York: G.P. Putman and Sons, 1872) 1:120.</ref>

Wirt resigned his chancellorship after six months and in 1803 moved to Norfolk. In 1806, he returned to Richmond, where he defended George Wythe Sweeney of the charge of murdering his uncle, [[George Wythe]]. In 1807, President Jefferson requested him for the prosecution of [[wikipedia:Aaron Burr|Aaron Burr]] for treason. In 1816, he was appointed by Madison as the United States Attorney for the District of Virginia, and in 1817, he was appointed the ninth Attorney General of the United States by President Monroe. He was Attorney General for twelve years until 1829, through the administration of President Adams, and afterward retired to Baltimore.<ref>Worcester, ''The American Almanac,'' 327-328.</ref>

Wirt wrote a series of essays for the ''Richmond Enquirer'' which were published as ''The Rainbow'' (1803) and ''The Old Batchelor'' (1810). His popular "Letters of the British Spy" for the ''Virginia Argus'' were collected into book form and published in 1803. ''The Two Principal Arguments in the Trial of Aaron Burr'' was published in 1808.

Wythe makes several appearances in Wirt's ''[[Media:WirtLifeOfPatrickHenry1817.pdf|Sketches of the Life and Character of Patrick Henry]],'' published in 1817, and which Wirt worked on for more than a decade.<ref>William Wirt, ''[[Media:WirtLifeOfPatrickHenry1817.pdf|Sketches of the Life and Character of Patrick Henry]],'' (Philadelphia: James Webster, 1817).</ref> Wirt says of Wythe: "He knew nothing, even in his profession, and never would know any thing of 'crooked and indirect by-ways.' Whatever he had to do, was to be done openly, avowedly and above board. He would not, even at the bar, have accepted of success on any other terms" (p. 48).

A biography of Wirt, ''Memoirs of the Life of William Wirt: Attorney-General of the United States,'' written by John P. Kennedy, was published in 1872.

==Section I==
===Page 15===

<blockquote>
It was now, when all other experiments had failed, that, as a last effort, he determined, of his own accord, to make a trial of the law. No one expected him to succeed in any eminent degree. His unfortunate habits were, by no means, suited to so laborious a profession: and even if it were not too late in life for him to hope
</blockquote>

===Page 16===
<blockquote>
to master its learning, the situation of his affairs forbade an extensive course of reading. In addition to these obstacles, the business of the profession, in that quarter, was already in hands from which it was not easily to be taken; for (to mention no others) judge Lyons, the late president of the court of appeals, was then at the bar of Hanover and the adjacent counties, with an unrivalled reputation for legal learning; and Mr. John Lewis, a man, also, of very respectable legal attainments, occupied the whole field of forensic eloquence. Mr. Henry, himself, seems to have hoped for nothing more from the profession than a scanty subsistence for himself and his family, and his preparation was suited to these humble expectations; for to the study of a profession, which is said to require the lucubrations of twenty years, Mr. Henry devoted not more than six weeks.* On this preparation, however, he obtained a license to practise the law. How he passed with two of the examiners, I have no intelligence; but he himself used to relate his interview with the third. This was no other than Mr. John Randolph, who was afterwards the king's attorney general for the colony; a gentleman of the most courtly elegance of person and manners, a polished wit, and a profound lawyer. At first, he was so much shocked by Mr. Henry's very ungainly figure and address, that he refused to examine him: understanding, however, that he had already obtained two signatures, he entered, with manifest reluctance, on the business. A very short time was sufficient to satisfy him of the erroneous conclusion which he had drawn from the exterior of the candidate. With evident marks

<div style="font-size: 85%;">* So say Mr. Jefferson and judge Winston. Mr. Pope says nine months. Col. Meredith and Capt. Dabney, six or eight months. Judge Tyler, one month; and he adds, "This I had from his own lips. In this time, he read Coke upon Littleton, and the Virginia laws."
</div>
</blockquote>

===Page 17===

<blockquote>
of increasing surprise (produced no doubt by the peculiar texture and strength of Mr. Henry's style, and the boldness and originality of his combinations) he continued the examination for several hours: interrogating the candidate, not on the principles of municipal law, in which he no doubt soon discovered his deficiency, but on the laws of nature and of nations, on the policy of the feudal system, and on general history, which last he found to be his strong hold. During the very short portion of the examination which was devoted to the common law, Mr. Randolph dissented, or affected to dissent, from one of Mr. Henry's answers, and called upon him to assign the reasons of his opinion. This produced an argument; and Mr. Randolph now played off on him, the same arts which he himself, had so often practised on his country customers; drawing him out by questions, endeavouring to puzzle him by subtleties, assailing him with declamation, and watching continually, the defensive operations of his mind. After a considerable discussion, he said, "you defend your opinions well, sir; but now to the law and to the testimony." Hereupon he carried him to his office, and opening the authorities, said to him, "behold the force of natural reason; you have never seen these books, nor this principle of the law; yet you are right and I am wrong; and from the lesson which you have given me (you must excuse me for saying it) I will never trust to appearances again. Mr. Henry, if your industry be only half equal to your genius, I augur that you will do well, and become an ornament and an honour to your profession." It was always Mr. Henry's belief that Mr. Randolph had affected this difference of opinion, merely to afford him the pleasure of a triumph, and to make some atonement for the wound which his first repulse had in-
</blockquote>

===Page 18===

<blockquote>
flicted. Be this as it may, the interview was followed by the most marked and permanent respect on the part of Mr. Randolph, and the most sincere good will and gratitude, on that of Mr. Henry.*

It was at the age of four and twenty that Mr. Henry obtained his license. Of the science of law, he knew almost nothing: of the practical part he was so wholly ignorant, that he was not only unable to draw a declaration or a plea, but incapable it is said, of the most common and simple business of his profession, even of the mode of ordering a suit, giving a notice, or making a motion in court. It is not at all wonderful therefore, that such a novice, opposed as he was by veterans, covered with the whole armour of the law, should linger in the back ground, for three years.

<div style="font-size: 85%;">* This account of Mr. Henry's examination is given by judge Tyler, who states it as coming from Mr. Henry himself. It was written before I had received the following statement from Mr. Jefferson; and although there is some difference in the circumstances, it has not been thought important enough to make an alteration of the text necessary. This is Mr. Jefferson's statement. "In the spring of 1760, he came to Williamsburg to obtain a license as a lawyer, and he called on me at college. He told me he had been reading law only six weeks. Two of the examiners, however, Peyton and John Randolph, men of great facility of temper, signed his license with as much reluctance as their dispositions would permit them to show. Mr. Wythe absolutely refused. Robert C.Nicholas refused also at first; but on repeated importunities and promises of future reading, he signed. These facts I had afterwards from the gentlemen themselves; the two Randolphs acknowledging he was very ignorant of the law, but that they perceived him to be a young man of genius, and did not doubt that he would soon qualify himself.
</div>
</blockquote>

==Section II==
===Page 46===

<blockquote>
Edward Pendleton, the protege of the speaker Robinson, was also, among the most prominent members in the house. He had, in a great measure, overcome the disadvantages of an extremely defective education, and, by the force of good company and the study of correct authors, had attained to great accuracy and perspicuity of style. The patronage of the speaker had introduced him to the first circles, and his manners were elevated, graceful and insinuating. His person was spare, but well proportioned; and his countenance one of the finest in the world: serene—contemplative—benignant—with
</blockquote>

===Page 47===

<blockquote>

that expression of unclouded intelligence and extensive reach, which seemed to denote him capable of any thing, that could be effected by the power of the human mind. His mind itself, was of a very fine order. It was clear, comprehensive, sagacious and correct; with a most acute and subtle faculty of discrimination; a fertility of expedient which could never be exhausted; a dexterity of address which never lost an advantage and never gave one; and a capacity for continued and unremitting application, which was perfectly invincible. As a lawyer and a stateman, he had few equals; no superiors. For parliamentary management, he was without a rival. With all these advantages of person, manners, address and intellect, he was also a speaker of distinguished eminence. He had that silver voice* of which Cicero makes such frequent and honourable mention—an articulation uncommonly distinct—a perennial stream of transparent, cool and sweet elocution; and the power of presenting his arguments with great simplicity, and striking effect. He was always graceful, argumentative, persuasive: never vehement, rapid, or abrupt. He could instruct and delight; but he had no pretensions to those high powers which are calculated to "shake the human soul." George Wythe, also, a member of the House, was confessedly among the first in point of abilities. There is a story circulated, as upon his own authority, that he was initiated by his mother, in the Latin classics.&dagger; Be this as it may, it is certain that he had raised upon the original foundation, whencesoever acquired, a superstructure of ancient literature which has been rarely equalled in this country. He was perfectly familiar with the authors of Greece

<div style="font-size: 85%;">
:::::* Vox Argentea, see the Brutus, passim.

:::::&dagger; I heard it from the late judge Nelson, his relation.
</div>
</blockquote>

===Page 48===

<blockquote>
and Rome; read them with the same ease and quoted them with the same promptitude that he could the authors in his native tongue. He carried his love of antiquity rather too far; for he frequently subjected himself to the charge of pedantry; and his admiration of the gigantic writers of Queen Elizabeth's reign, had unfortunately betrayed him into an imitation of their quaintness. Yet, with all this singularity of taste, he was a man of great capacity; powerful in argument; frequently pathetic; and elegantly keen and sarcastic in repartee. He was long the rival of Mr. Pendleton at the bar, whom he equalled as a common lawyer, and greatly surpassed as a civilian: but he was too open and direct in his conduct, and possessed too little management either with regard to his own temper or those of other men, to cope with so cool and skilful an adversary. Though a full match for Mr. Pendleton in the powers of fair and solid reasoning, Mr. Pendleton could whenever he pleased, and would whenever it was necessary, tease him with quibbles, and vex him with sophistries, until he destroyed the composure of his mind and robbed him of his strength. No man was ever more entirely destitute of art than Mr. Wythe. He knew nothing, even in his profession, and never would know any thing of "crooked and indirect by-ways." Whatever he had to do, was to be done openly, avowedly and above board. He would not, even at the bar, have accepted of success on any other terms. This simplicity and integrity of character, although it sometimes exposed him to the arts and sneers of the less scrupulous, placed him before his countrymen, on the ground which Caesar wished his wife to occupy; he was not only pure, but above all suspicion. The unaffected sanctity of his principles, united with his modesty and simple elegance of manners,
</blockquote>

===Page 49===

<blockquote>
his attic wit, his stores of rare knowledge, his capacity for business, and the real power of his intellect, not only raised him to great eminence in public, but rendered him a delightful companion, and a most valuable friend.
</blockquote>

==Section II==
===Page 60===

<blockquote>
"Mr. Henry moved and Mr. Johnston seconded these resolutions successively. They were opposed by Messrs. Randolph, Bland, Pendleton, Wythe, and all the old members whose influence in the house had, till then, been unbroken. They did it, not from any question of our rights, but on the ground that the same sentiments had been, at their preceding session, expressed in a more conciliatory form, to which the answers were not yet received. But torrents of sublime eloquence from Henry j backed by the solid reasoning of Johnston, pre-
</blockquote>

===Page 61===

<blockquote>
vailed. The last, however, and strongest resolution was carried but by a single vote. The debate on it was most bloody. I was then but a student, and stood at the door of communication between the house and the lobby (for as yet there was no gallery,) during the whole debate and vote; and I well remember that, after the numbers on the division were told and declared from the chair, Peyton Randolph (the attorney general) came out at the door where I was standing, and said as he entered the lobby,'by God I would have given 500 guineas for a single vote:' for one vote would have divided the house, and Robinson was in the chair, who he knew would have negatived the resolution. Mr. Henry left town that evening; and the next morning before the meeting of the house, col. Peter Randolph, then of the council, came to the hall of burgesses, and sat at the clerk's table till the house bell rang, thumbing over the volumes of journals, to find a precedent of expunging a vote of the house, which he said, had taken place while he was a member or clerk of the house, I do not recollect which. I stood by him at the end of the table, a considerable part of the time, looking on, as he turned over the leaves; but I do not recollect whether he found the erasure. In the mean time, some of the timid members who had voted for the strongest resolution, had become alarmed; and as soon as the house met, a motion was made and carried to expunge it from the journals. There being at that day but one printer, and he entirely under controul of the governor, I do not know that this resolution ever appeared in print. I write this from memory: but the impression made on me at the time was such as to fix the facts indelibly in my mind. I suppose the original journal was among those destroyed by the British, or its obliterated face might be ap-
</blockquote>

===Page 62===

<blockquote>
pealed to. And here I will state that Burk's statement of Mr. Henry's consenting to withdraw two resolutions, by way of compromise with his opponents, is entirely erroneous."
</blockquote>

===Page 64===

<blockquote>
"By these resolutions," says Mr. Jefferson, "and his manner of supporting them, Mr. Henry took the lead out of the hands of those who had, theretofore, guided the proceedings of the house; that is to say, of Pendleton, Wythe, Bland, Randolph." It was, indeed, the measure which raised him to the zenith of his glory. He had never before had a subject which entirely matched his genius, and was capable of drawing out all the powers of his mind. It was remarked of him, throughout his life, that his talents never failed to rise with the occasion, and in proportion with the resistance which he had to encounter. The nicety of the vote on his last resolution, proves that this was not a time to hold in reserve, any part of his forces. It was, indeed, an alpine passage, under circumstances even more unpropitious than those of Hanibal; for he had not only to fight, hand to hand, the powerful party who were already in possession of the heights, but at the same instant,
</blockquote>

===Page 65===

<blockquote>
to cheer and animate the timid band of followers, that were trembling, fainting, and drawing back, below him. It was an occasion that called upon him to put forth all his strength, and he did put it forth, in such a manner, as man never did before. The cords of argument, with which his adversaries frequently flattered themselves they had bound him fast, became packthreads in his hands. He burst them, with as much ease, as the unshorn Sampson did the bands of the Philistines. He seized the pillars of the temple, shook them terribly, and seemed to threaten his opponents with ruin. It was an incessant storm of lightning and thunder, which struck them aghast. The faint-hearted gathered courage from his countenance, and cowards became heroes, while they gazed upon his exploits.
</blockquote>

==Section III==
===Page 70===

<blockquote>
At this bar, he entered into competition with all the first legal characters in the colony, some of whom had been educated at the Temple. Mr. Pendleton and Mr. Wythe have been already mentioned: but in addition to these he had to encounter Mr. John Randolph, Mr. Thompson Mason, Mr. Robert C. Nicholas, Mr. Mer-
</blockquote>

===Page 71===

<blockquote>
cer, Mr. Blair, and Mr. Jefferson; all of them masters of the learning of their profession, and all of them, men of preeminent abilities.
</blockquote>

===Page 85===

<blockquote>
The house of burgesses of Virginia, which had led the opposition to the stamp act, kept their high ground during the whole of the ensuing contest. Mr. Henry, having removed again from Louisa to his native county,
</blockquote>

===Page 86===

<blockquote>
in the year 1767 or 1768, continued a member of that house, till the close of the revolution; and there could be no want of boldness in any body, of which he was a member. The session of 1768-9, was marked by a set of resolutions so strong as to have excited even the amiable and popular Bottetourt to displeasure. By those resolutions they re-asserted, in the most emphatic terms, the exclusive right of the colony to tax themselves in all cases whatever; complained of the recent acts of parliament, as so many violations of the British constitution; and remonstrated vigorously, against the right of transporting the free-born subjects of these colonies to England, to take their trial before prejudiced tribunals, for offences alleged to be committed in the colonies. The tradition with regard to these resolutions, is, that they were agreed to in a committee of the whole on one day, but not reported to the house, with the view of preventing their appearance on the journal of the next day, before they could be completely passed through the forms of the house; apprehending, from the fate of the Massachusetts legislature, that a knowledge of these resolutions on the part of the governor, would produce an immediate dissolution of the house. When the house rose for the evening, however, the fact of their having passed such resolutions was whispered to the governor; and he endeavoured in vain, to procure a copy of them from the clerk.* On the next day, the house foreseeing the event, met on the instant of the ringing of the bell, and with closed doors, received the report of their resolutions, considered, adopted, and ordered them to be entered upon their journals; which they had scarcely done, when they were summoned to attend the governor, and were dissolved. "Mr. Speaker," said he, "and

<div style="font-size: 85%;">
:::::* Mr. Wythe.
</div>
</blockquote>

===Page 87===

<blockquote>
gentleman of the house of representatives, I have heard of your resolves, and augur ill of their effects; you have made it my duty to dissolve you, and you are accordingly dissolved."
</blockquote>

===Page 125===

<blockquote>
The constitution of this committee proves, that in those days of genuine patriotism, there existed a mutual and noble confidence, which deemed the opponents of a measure no less worthy than its friends, to assist in its execution. A correspondent,* who bore himself a most distinguished part in our revolution, in speaking of the gentlemen whom I have just named as having opposed Mr. Henry's resolutions, and of Mr. Wythe who acted with them, says—" these were honest and able men, who had begun the opposition on the same grounds, but with a moderation more adapted to their age and experience. Subsequent events favoured the bolder spirits of Henry, the Lees, Pages, Mason, &c. with whom I went in all points. Sensible, however, of the importance of unanimity among our constituents, although we often wished to have gone on faster, we slackened our pace, that our less ardent colleagues might keep up with us; and they on their part differing nothing from us in principle, quickened their gait somewhat beyond that which their prudence might, of itself, have advised, and thus consolidated the phalanx which breasted the power of Britain. By this harmony of the bold with the cautious, we advanced, with our constituents, in undivided mass, and with fewer examples of separation than, perhaps, existed in any other part of the union."

<div style="font-size: 85%;">
:::::* Mr. Jefferson
</div>
</blockquote>

==Section VI==

===Page 193===

<blockquote>
On the fifteenth of May, Mr. Cary reported from the committee of the whole house on the state of the colony, the following preamble and resolutions, which were unanimously adopted:

"Forasmuch as all the endeavours of the United Colonies, by the most decent representations and petitions to the king and parliament of Great Britain, to restore peace and security to America under the British government, and a re-union with that people upon just and liberal terms, instead of a redress of grievances, have produced, from an imperious and vindictive administration, increased insult, oppression, and a vigorous attempt to effect our total destruction. By a late act, all these colonies are declared to be in rebellion, and out of the protection of the British crown; our properties subjected to confiscation; our people, when captivated, compelled to join in the murder and plunder of their relations and countrymen; and all former rapine and oppression of Americans declared legal and just. Fleets and armies are raised, and the aid of foreign troops engaged to assist these destructive purposes. The king's representative in this colony hath not only withheld all the powers of government, from operating for our safety, but, having retired on board an armed ship, is carrying on a piratical and savage war against us, tempting our slaves, by every artifice, to resort to him, and training and employing them against their
</blockquote>

===Page 194===

<blockquote>
masters. In this state of extreme danger, we have no alternative left, but an abject submission to the will of those overbearing tyrants, or a total separation from the crown and government of Great Britain: Uniting and exerting the strength of all America for defence, and forming alliances with foreign powers for commerce and aid in war. Wherefore, appealing to the Searcher of hearts for the sincerity of former declarations, expressing our desire to preserve the connexion with that nation, and that we are driven from that inclination by their wicked councils, and the eternal laws of self-preservation,

"Resolved, ''unanimously,'' That the delegates appointed to represent this colony in general congress, be instructed to propose to that respectable body, TO DECLARE THE UNITED COLONIES FREE AND INDEPENDENT STATES, absolved from all allegiance to, or dependence upon, the crown or parliament of Great Britain; and that they give the assent of this colony to such declaration, and to whatever measures may be thought proper and necessary by the congress for forming foreign alliances, and A CONFEDERATION OF THE COLONIES, at such time, and in the manner, as to them shall seem best. Provided, that the power of forming government for, and the regulations of, the internal concerns of each colony, be left to the respective colonial legislatures.

"Resolved, ''unanimously,'' That a committee be appointed to prepare A DECLARATION OF RIGHTS, and such a plan of government as will be most likely to maintain peace and order in this colony, and secure substantial and equal liberty to the people."

This measure was followed by the most lively demonstrations of joy. The spirit of the times is interestingly
</blockquote>

===Page 195===

<blockquote>
manifested by the following paragraph from Purdie's paper of the 17th of May, which immediately succeeds the annunciation of the resolutions.

"In consequence of the above resolutions, universally regarded as the only door which will lead to safety and prosperity, some gentlemen made a handsome collection for the purpose of treating the soldiery, who next day were paraded in Waller's grove, before brigadier-general Lewis, attended by the gentlemen of the committee of safety, the members of the general convention, the inhabitants of this city, &c. &c. The resolutions being read aloud to the army, the following toasts were given, each of them accompanied by a discharge of the artillery and small arms, and the acclamations of all present:—

"1. The American Independent States.

"2. The grand Congress of the United States, and their respective legislatures.

"3. General Washington, and victory to the American arms.

"The Union Flag of the American states waved upon the capitol during the whole of this ceremony; which being ended, the soldiers partook of the refreshments prepared for them by the affection of their countrymen, and the evening concluded with illuminations, and other demonstrations of joy; every one seeming pleased that the domination of Great Britain was now at an end, so wickedly and tyrannically exercised for these twelve or thirteen years past, notwithstanding our repeated prayers and remonstrances for redress."

The committee appointed to prepare the declaration and plan of government, called for by the last resolution, were the following: Mr. Archibald Cary, Mr. Meriwe-
</blockquote>

===Page 196===

<blockquote>
ather Smith, Mr. Mercer, Mr. Henry Lee, Mr. Treasurer, Mr. Henry, Mr. Dandridge, Mr. Gilmer, Mr. Bland, Mr. Digges, Mr. Carrington, Mr. Thomas Ludwell Lee, Mr. Cabell, Mr. Jones, Mr. Blair, Mr. Fleming, Mr. Tazewell, Mr. Bichard Cary, Mr. Bullitt, Mr. Watts, Mr. Banister, Mr. Page, Mr. Starke, Mr. David Mason, Mr. Adams, Mr. Read, and Mr. Thomas Lewis; to whom were afterwards successively added, Mr. Madison, Mr. Rutherford, Mr. Watkins, Mr. George Mason, Mr. Harvie, Mr. Curie, and Mr. Holt.

On Wednesday, the 12th of June following, that declaration of rights which stands prefixed to our statutes, was reported and adopted without a dissenting voice; as was also, on Saturday the 29th of the same month, the present plan of our government.*

<div style="font-size: 85%;">
* The striking similitude between the recital of wrongs prefixed to the constitution of Virginia, and that which was afterwards prefixed to the declaration of independence of the United States, is of itself sufficient to establish the fact that they are from the same pen. But the constitution of Virginia preceded the declaration of independence, by nearly a month; and was wholly composed and adopted while Mr. Jefferson is known to have been out of the state, attending the session of congress at Philadelphia From these facts alone, a doubt might naturally arise whether he was, as he has always been reputed, the author of that celebrated instrument, the declaration of American independence, or at least a recital of grievances which ushers it in; or whether this part of it at least, had not been borrowed from the preamble to the constitution of Virginia. To remove this doubt, it is proper to state, that there now exists among the archives of this state, an original rough draught of a constitution for Virginia, in the hand-writing of Mr. Jefferson, containing this identical preamble, and which was forwarded by him from Philadelphia, to his friend Mr. Wythe, to be submitted to the committee of the house of delegates. The body of the constitution is taken principally from a plan proposed by Mr. George Mason; and had been adopted by the committee before the arrival of Mr. Jefferson's plan: his preamble however, was prefixed to the instrument; and some of the modifications proposed by him, introduced into the body of it.
</div>
</blockquote>

==Section VII==
===Page 237===

<blockquote>
The force of this figure, and the energy with which it was brought out, are said to have produced an effect, that made the house start simultaneously. It continued to be admired, long after the occasion which gave it birth had passed away, and was frequently quoted by Mr. Wythe to his students, while professor of law at William and Mary College, as a happy specimen of those valuable figures, which unite the beauty of decoration with the effect of argument.
</blockquote>

===Page 259===

<blockquote>
On the fourth of December in the same year,<ref>1786.</ref> Mr. Henry was appointed by the legislature, one of seven deputies from this commonwealth to meet a convention proposed to be held in Philadelphia, on the following May, for the purpose of revising the federal constitution. On this list of deputies, his name stands next to that of him, who stood of right before all others in America; the order of appointment, as exhibited by the
</blockquote>

===Page 260===

<blockquote>
journal, being as follows: George Washington, Patrick Henry, Edmund Randolph, John Blair, James Madison, George Mason, and George Wythe. The same cause, however, which had constrained Mr. Henry's retirement from the executive chair of the state, disabled him now from obeying this honourable call of his country. On his resigning the government, he retired to Prince Edward county, and endeavoured to cast about for the means of extricating himself from his debts. At the age of fifty years, worn down by more than twenty years of arduous service in the cause of his country, eighteen of which had been occupied by the toils and tempests of the revolution, it was natural for him to wish for rest, and to seek some secure and placid port in which he might repose himself from the fatigues of the storm. This however was denied him; and after having devoted the bloom of youth and the maturity of manhood to the good of his country, he had now in his old age to provide for his family.
</blockquote>

==Section VIII==
===Page 263===

<blockquote>
THE convention met in Richmond on the 2d of June, 1788, and exhibited such an array of variegated talents, as had never been collected before within the limits of the state, and such an one as it may well be feared we shall never see again. A few of the most eminent of these statesmen, are still alive; of whom, therefore, delicacy forbids us to speak as they deserve. Their powers however, and the peculiar characters of their intellectual excellence are so well known, that their names will be sufficient to speak their respective eulogies. We may mention, therefore, Mr. Madison, the late president of the United States; Mr. Marshall, the chief justice; and Mr. Monroe, now the president. What will the reader think of a body, in which men like these were only among their equals! Yet such is the fact; for there, were those sages of other days, Pendleton and Wythe; there was seen displayed, the Spartan vigour and compactness of George Nicholas; and there shone the radiant genius and sensibility of Grayson; the Roman energy and the Attic wit of George Mason was there; and there, also, the classic taste and harmony of Edmund Randolph; "the splendid conflagration" of the high minded Innis; and the matchless eloquence of the immortal Henry!*

<div style="font-size: 85%;">
* The debates and proceedings of this convention, by Mr. David Robertson of Petersburg, have passed through two editions; yet it is believed, that their circulation has been principally confined to Virginia; and even in this state, from the rapid progress of our population, that book is supposed to be in, comparatively, few hands. Hence it has been thought proper to give a
</div>
</blockquote>

===Page 264===

<blockquote>
It was not until the 4th, that the preliminary arrangements for the discussion were settled. Mr. Pendleton had been unanimously elected the president of the convention; but it having been determined that the subject should be debated in committee of the whole, the house on that day, resolved itself into committee, and the venerable Mr. Wythe was called to the chair. In conformity with the order which had been taken, to discuss the constitution, clause by clause, the clerk now read the preamble and the two first sections; and the debate was opened by Mr. George Nicholas. He confined himself strictly to the sections under consideration, and maintained their policy with great cogency of argument. Mr. Henry rose next, and soon demonstrated that his excursions were not to be restrained by the rigour of rules. Instead of proceeding to answer Mr. Nicholas, he commenced by sounding an alarm calculated to produce a most powerful impression. The effect, however, will be entirely lost upon the reader, unless he shall associate with the speech, which I am about to lay before him, that awful solemnity and look of fearful portent, by which Mr. Henry could imply

<div style="font-size: 85%;">
short sketch of Mr. Henry's course in this body. It ought to be premised, however, that the published debates have been said by those who attended the convention, to present but an imperfect view of the discussions of that body. In relation to Mr. Henry, they are confessedly imperfect; the reporter having sometimes dropped him in those passages, in which the reader would be most anxious to follow him. From the skill and ability of the reporter, there can be no doubt that the substance of the debates, as well as their general course, are accurately preserved. The work is, therefore, a valuable repository of the arguments by which the constitution was opposed on one hand, and supported on the other; but it must have been utterly impossible for a man, who possesses the sensibility and high relish for eloquence which distinguish the reporter, not to have been so far transported by the excursions of Mr. Henry's genius, as sometimes, unconsciously, to have laid down his pen.
</div>
</blockquote>

===Page 265===

<blockquote>
even more than he expressed; and that slow, distinct, emphatic enunciation, by which he never failed to move the souls of his hearers.
</blockquote>

===Page 270===

<blockquote>
He then proceeded to set forth, in terrible array, his various objections to the constitution; not confining himself to the clauses under debate, but ranging through the whole instrument, and passing from objection to objection, as they followed each other in his mind. This departure from the rule of the house, although at first view censurable, was insisted upon by himself and his colleagues, as being indispensable to a just examination of the particular clause under consideration; because the policy or impolicy of any provision, did not always depend upon itself alone, but on other provisions with which it stood connected, and indeed, upon the whole system of powers and checks that were associated with it in the same instrument, and thus formed only parts of one entire whole. The truth of this position, in relation to some of the provisions, could not be justly denied; and a departure once made from the rigour of the rule, the debate became at large, on every part of the constitution; the disputants at every stage, looking forward and backward throughout the whole instrument, without any controul other than their own discretion. Thus freed from restraints, under which his genius was at all times impatient, uncoupled and let loose to range the whole field at pleasure, Mr. Henry seemed to have recovered, and to luxuriate in all the powers of his youth. He had, indeed, occasion for them all; for while he was supported by only three effective
</blockquote>

===Page 271===

<blockquote>
auxiliaries, opposed to him stood a phalanx, most formidable both for talents and weight of character; and of several of whom it might be said, with truth, that each was " in himself a host;" for at the head of the opposing ranks stood Mr. Pendleton—Mr. Wythe—Mr. Madison—Mr. Marshall—Mr. Nicholas—Mr. Randolph—Mr. Innis—Mr. Henry Lee—and Mr. Corbin. Fearful odds! and such as called upon him for the most strenuous exertion of all his faculties. Nor did he sink below the occasion. For twenty days, during which this great discussion continued without intermission, his efforts were sustained, not only with undiminished strength, but with powers which seemed to gather new force from every exertion. All the faculties useful for debate were found united in him, with a degree of perfection, in which they are rarely seen to exist, even separately, in different individuals: irony, ridicule, the purest wit, the most comic humour, exclamations that made the soul start, the most affecting pathos, and the most sublime apostrophes, lent their aid to enforce his reasoning, and to put to flight the arguments of his adversaries.
</blockquote>

==CONCLUSION==
===Page 418===

<blockquote>
3. So also in the state convention, the same year, the old patriotic leaders were disposed still to rely on the efficacy of petitions, memorials, and remonstrances; it was Mr. Henry who proposed, and in spite of their opposition (which was of so strenuous and serious a character, that one of them in making it. is said to have shed tears most profusely) carried the
</blockquote>

===Page 419===

<blockquote>
bold measure of arming the militia. This was not dictated by the people. The fact was, that at that day, the people placed themselves in the hands of their more enlightened friends; they never ventured to prescribe either the time, the manner, or the measure of resistance; and there can be no room for a candid doubt that, but for the bold spirit and overpowering eloquence of Patrick Henry, the people would have followed the pacific counsels of Mr. Randolph, Mr. Nicholas, Mr. Pendleton, Mr. Wythe, and other men of acknowledged talents and virtue. It was Mr. Henry, therefore, who led both the people and their former leaders. The latter, indeed, came on so reluctantly at first, that they may be said to have been rather dragged along, than led; they did come however, and acquiring warmth by their motion, made ample amends thereafter, for their early hesitation.*

<div style="font-size: 85%;">
* The author has no intention, by these remarks, to impair in the smallest degree, the well-earned reputation of those veteran statesmen. They had commenced the opposition to the stamp act, and the other obnoxious acts of the British parliament, before Mr. Henry made his appearance as a politician; they had commenced too, on the same grounds, and would, probably, at some later period, have been wrought up by their own principles and feelings, to a forcible resistance to those measures. But the statements in the text are unquestionably correct: they did not approve of the immediate application of force; Mr. Henry's policy was condemned by them as rash and precipitate. The author is in possession of an original letter from one of these statesmen, in which Mr. Henry is expressly and directly accused of having precipitated the revolution, against the judgment of the older and cooler patriots. "Events, however," as we have seen, "favoured the bolder measure of Mr. Henry," and proved his policy to be the best.
</div>
</blockquote>

==APPENDIX==
===Page i===

<blockquote>
<center>
NOTE A.
</center>

IT appears by the Journal of the House of Burgesses, of the 14th November 1764, (page 38), that a committee was appointed to draw up the following [[Remonstrance to the House of Commons|address, memorial and remonstrance]]; which committee was composed of the following persons, to wit: Mr. Attorney (Peyton Randolph), Mr. Richard Henry Lee, Mr. Landon Carter, Mr. Wythe, Mr. Edmund Pendleton, Mr. Benjamin Harrison, Mr. Cary and Mr. Fleming: to whom, afterward, Mr. Bland was added. The address to the King is from the pen of the Attorney*

"To the King's Most Excellent Majesty.

"MOST GRACIOUS SOVEREIGN,

"We, your Majesty's dutiful and loyal subjects, the Council and Burgesses of your ancient colony and dominion of ''Virginia,'' now met in general assembly, beg leave to assure your Majesty of our firm and inviolable attachment to your sacred person and government; and as your faithful subjects, here, have at all times been zealous to demonstrate this truth, by a ready compliance with the royal requisitions during the late war, by which a heavy and oppressive debt of near half a million hath been incurred, so at this time they implore permission to approach the throne with humble confidence, and to entreat that your Majesty will be graciously pleased to protect your people of this colony in the enjoyment of their ancient and inestimable right of being governed by such laws, respecting their internal polity and taxation, as are derived from their own consent, with the approbation of their Sovereign or his substitute: a right which, as men and descendants of ''Britons,'' they have ever quietly possessed, since, first, by royal permission and encouragement, they left the mother kingdom to extend its commerce and dominion.

"Your Majesty's dutiful subjects of ''Virginia'' most humbly and unanimously hope, that this invaluable birthright, descended to them from their ancestors, and in which they have been protected by your royal predecessors, will not be suffered to receive an injury, under the reign of your sacred Majesty, already so illustriously distinguished by your gracious attention to the liberties of the people.

"That your Majesty may long live to make nations happy, is the ardent prayer of your faithful subjects, the Council and Burgesses of ''Virginia.''"

<div style="font-size: 85%;">
:::::* On the authority of Mr. Jefferson.
</div>
</blockquote>

===Page iii===

<blockquote>
Mr. Wythe was the author of the following remonstrance. "It was done with so much freedom that, as he told me, himself, his colleagues of the committee shrunk from it as wearing the aspect of treason, and smoothed its features to its present form."*

<center>
"To the Honourable the Knights, Citizens, and Burgesses of ''Great Britain,''<br />in Parliament assembled:<br />"''The Remonstrance of the Council and Burgesses of'' Virginia.
</center>

"It appearing, by the printed votes of the house of commons of ''Great Britain'' in parliament assembled, that in a committee of the whole house, the 17th day of ''March'' last, it was resolved, that towards defending, protecting, and securing the ''British'' colonies and plantations in ''America,'' it may be proper to charge certain stamp duties in the said colonies and plantations; and it being apprehended that the same subject, which was then declined, may be resumed and further pursued in a succeeding session, the council and burgesses of Virginia, met in general assembly, judge it their indispensable duty, in a respectful manner, but with decent firmness, to remonstrate against such

<div style="font-size: 85%;">
:::::* Mr. Jefferson.
</div>
</blockquote>

===Page iv===

<blockquote>
a measure; that at least a cession of those rights, which in their opinion must be infringed by that procedure, may not be inferred from their silence, at so important a crisis.

"They conceive it is essential to ''British'' liberty, that laws, imposing tales on the people, ought not to be made without the consent of representatives chosen by themselves; who, at the same time that they are acquainted with the circumstances of their constituents, sustain a portion of the burthen laid on them. The privileges, inherent in the persons who discovered and settled these regions, could not be renounced or forfeited by their removal hither, not as vagabonds or fugitives, but licensed and encouraged by their prince, and animated with a laudable desire of enlarging the ''British'' dominion, and extending its commerce: on the contrary, it was secured to them and their descendants, with all other rights and immunities of British subjects, by a royal charter, which hath been invariably recognised and confirmed by his Majesty and his predecessors, in their commissions to the several governors, granting a power, and prescribing a form of legislation; according to which, laws for the administration of justice, and for the welfare and good government of the colony, have been hitherto enacted by the governor, council, and general assembly; and to them, requisitions and applications for supplies have been directed by the crown. As an instance of the opinion which former sovereigns entertained of these rights and privileges, we beg leave to refer to three acts of the general assembly, passed in the 32d year of the reign of king ''Charles'' II. (one of which is entitled'' 'An act for raising a public revenue for the better support of the government of his Majesty's colony of Virginia,' ''imposing several duties for that purpose), which being thought absolutely necessary, were prepared in ''England,'' and sent over by their then governour, the lord ''Culpeper,'' to be passed by the general assembly, with a full power to give the royal assent thereto; and which were accordingly passed, after several amendments were made to them here: thus tender was his Majesty of the rights of his American subjects; and the remonstrants do not discern by what distinction they can be deprived of that sacred birthright and most valuable inheritance by their fellow subjects, nor with what propriety they can be taxed or affected in their estates, by the parliament, wherein they are not, and indeed cannot, constitutionally, be represented.

"And if it were proper for the parliament to impose taxes on the colonies at all, which the remonstrants take leave to think would be inconsistent with the fundamental principles of the constitution, the exercise of that power, at this time, would be ruinous to Virginia, who exerted herself in the late war, it is feared beyond her strength, insomuch that to redeem the money granted for that exigence, her people are taxed for several years to come: this, with the larger expenses incurred for defending the frontiers against the restless Indians, who have infested her as much since the peace as before, is so grievous, that an increase of the burthen would be intolerable: especially as the people are very greatly distressed already from the scarcity of circulating cash amongst them, and from the little value of their staple at the British markets.

"And it is presumed, that adding to that load which the colony now labours under, will not be more oppressive to her people than destructive of the interest of Great Britain.— for the plantation trade, confined as it is to the mother country, hath been a principal means of multiplying and enriching her inhabitants; and, if not too much discouraged, may prove an inexhaustible source of treasure to the nation. For satisfaction in this point, let the present state of the British fleets and trade be compared with what they were before the settlement of the colonies; and let it be considered, that whilst property in land may be acquired on very easy terms, in the vast uncultivated territory of North America, the colonists will be mostly, if not wholly, employed in agriculture; whereby the exportation of their commodities to Great Britain, and the consumption of manufactures supplied from thence, will be daily increasing. But this most desirable connexion between Great Britain and her colonies, supported by such a happy intercourse of reciprocal benefits as is continually advancing the prosperity of both, must be interrupted, if the people of the latter, reduced to extreme poverty, should be compelled to manufacture those articles they have been hitherto furnished with, from the former.

"From these considerations, it is hoped that the honourable house of commons will not prosecute a measure which those who may suffer under it, cannot but look upon as fitter for exiles driven from their native country, after ignominiously forfeiting her favours and protection, than for the posterity of Britons, who have at all times been forward to demonstrate all due reverence to the mother kingdom; and are so instrumental in promoting her glory and felicity; and that British patriots will never consent to the exercise of any anticonstitutional power, which, even in this remote corner, may be dangerous in its example to the interiour parts of the British empire, and will certainly be detrimental to its commerce."
</blockquote>

==See also==

*[[Wythe's Lost Papers]]

==References==
<references/>

==External links==

Read this book in [http://books.google.com/books?id=mrcEAAAAYAAJ&printsec=frontcover Google Books.]

[[Category:Biographies]]
[[Category:Descriptions of Wythe]]

Great American Lawyers

2015-02-20T14:03:48Z

Jamorris01: /* Page 60 */

{{DISPLAYTITLE:''Great American Lawyers''}}
[[File:LewisGreatAmericanLawyersTitle1907.jpg|link={{filepath:TylerGreatAmericanLawyers1907.pdf}}|thumb|300px|Title page from volume one of ''[https://catalog.swem.wm.edu/law/Record/216069 Great American Lawyers]'', edited by William Draper Lewis, Philadelphia, PA: John C. Winston, 1907.]]
[[File:GreatAmericanLawyers1907Wythe.jpg|thumb|300px|Illustration from ''[https://catalog.swem.wm.edu/law/Record/216069 Great American Lawyers]'', captioned 'From an engraving in the [http://www.lva.virginia.gov/ Virginia State Library] at Richmond, Virginia. The source of the engraving and name of artist are unknown.' This engraving is a copy by J.B. Longacre, from an original by William Satchwell Leney published in the ''[[Memoirs of the Late George Wythe, Esquire|American Gleaner]]'' in 1807.]]
Lyon Gardiner Tyler's biography of [[George Wythe]] from Vol. 1 of [[Media:TylerGreatAmericanLawyers1907.pdf|''Great American Lawyers'']], edited by William Draper Lewis, (Philadelphia, Pennsylvania: John C Winston, 1907), 51-90.<ref>Lyon Gardiner Tyler, "George Wythe, 1726-1806," in [[Great American Lawyers#Page 84|''Great American Lawyers'']], ed. William Draper Lewis (Philadelphia, PA: John C. Winston, 1907), 51-90.</ref>

==Chapter text==
===Page 51===
<blockquote><center>'''GEORGE WYTHE.'''<br />
1726-1806.<br />
BY<br />
LYON GARDINER TYLER,<br />
''President of the College of William and Mary.''</center><br />

GEORGE WYTHE was descended from an honorable line of ancestors, who had held for generations leading positions in the county of Elizabeth City, in the colony of Virginia. Thomas Wythe, his great grandfather, came to Virginia about 1680, and was a magistrate of Elizabeth City County for many years. He died in 1694, leaving a son of the same name, who was born in 1670, married Ann Sheppard, the widow of Quintilian Guthericke, one of the first trustees of Hampton, and died a few months after his father in 1694, leaving issue two small children, Thomas and Ann. Thomas, who was the third in descent and father of George Wythe, was born about 1691, and lived to be a man of importance in the colony. He was repeatedly elected to the House of Burgesses, and served as a member at the sessions beginning in 1720, 1723, and 1726. He married in 1720 Margaret Walker, a lady of good education for the times in which she lived.<sup>1</sup> She
<hr />
<div style="font-size: 85%;"><sup>1</sup> Elizabeth City County Records.</div></blockquote>

===Page 52===
<blockquote>was the daughter of George Walker, of Elizabeth City County, and Ann Keith, daughter of George Keith, a celebrated preacher and scholar from whom George Wythe inherited his Christian name and probably much of his talent.

Keith was born at Aberdeen, Scotland, in the year 1638, and was educated at the University in his native city. He was originally connected with the Kirk of Scotland, but soon after taking the degree of Master of Arts he joined the Quakers, and for thirty years was one of their most eminent champions in England and America. He had extraordinary native talent to which he added an extensive knowledge of mathematics and the ancient languages. In 1682 he came to East New Jersey, and in 1689 he he removed to Philadelphia. In 1694 he broke with William Penn and the Quakers, and in 1700 joined the Church of England. Having preached in various places in England, he returned to America, in 1702, as the first missionary to America of the "Society for Propagating the Gospel in Foreign Parts," of the English Church.

He travelled and preached in all the governments belonging to the Crown of England, between Piscataqua river and North Carolina, making thousands of converts to the English church and winning high reputation by his talents as a speaker and controversialist.<sup>2</sup> Anne, his daughter, married, as stated,
<hr />
<div style="font-size: 85%;"><sup>2</sup> Sketch of George Keith, in Sprague, Annals of the American Church, pp. 25-30.</div></blockquote>

===Page 53===
<blockquote>George Walker, of Elizabeth City County, gunner and storekeeper of the fort at Point Comfort in 1723. He was a Quaker, and when George Keith abjured the faith of the sect, religious differences arose between Walker and his wife, whose admiration for her father made her a willing follower in his ways. Keith in his diary tells of spending ten days at the home of George Walker by James river and says of his daughter: "She is fully come off from the Quakers and is a zealous member of the Church of England, and brings up her children, so many of them as are capable through age, in the Christian religion; praise be to God for it." Walker, it appears, did not like the action of his wife and tried to restrain her and her children from attending the parish church, and Ann, who possessed the spirit of her father, appealed, in 1708, to the governor and council, who entered an order that George Walker should not prevent her from enjoying the free exercise of her religion.<sup>3</sup> These differences gradually wore away and twenty years later Samuel Bownas, a Quaker preacher, related that on the invitation of George Walker, he spent four nights at Walker's home on the "Strawberry banks," and found Mrs. Walker "more loving" than he had expected. "She was George Keith's daughter," he writes, "and in her younger days showed great dissatisfaction with Friends, but after her father's death the edge of that bitterness abated, and her husband was very loving
<hr />
<div style="font-size: 85%;"><sup>3</sup> William and Mary College Quarterly, vol. IX, 127.</div></blockquote>

===Page 54===
<blockquote>and hearty to Friends, frequently having meetings at his house."

Their daughter, Margaret, in 1719, married, as stated, Thomas Wythe, who died in 1729, leaving three little children—Thomas, George, and Ann.<sup>4</sup> Thomas lived to be a man and a representative in the Assembly, and died, without children, in 1755. Ann married Charles Sweeney, and her grandson [[George Wythe Sweeney]], as will be seen, has a melancholy connection with her eminent brother George Wythe's death. George, the second son, was born at the house of his father on Back river, in Elizabeth City County, in 1726, and the building, a brick structure of medium size, is still standing.<ref>Chesterville plantation.</ref> The elder brother being the heir-at-law, it is said that their mother's moderate circumstances induced her to undertake George's education herself. She taught him the Latin grammar and to read the Colloquies of Corderius, and also aided him in the rudiments of Greek, for although she did not understand the language herself, yet she knew the alphabet and assisted him in the translation by holding the dictionary and enabling him the more readily to compare the English with the Greek version of the Testament.

After a few years his mother also died; and with the limited scholastic education acquired under her guidance he was present a short time at the college of William and Mary, probably in the grammar
<hr />
<div style="font-size: 85%;"><sup>4</sup> Will of Thomas Wythe in Elizabeth City County Records.</div></blockquote>

===Page 55===
<blockquote>school, and then was sent to Prince George County to study law under Stephen Dewey, an eminent lawyer, who married his aunt, Elizabeth Walker.<sup>5</sup> Mr. Dewey confined him to the drudgery of his office, with little or no attention to his instruction in the general science of law, and in fact treated him, as Wythe said in after years, with "neglect." Very probably, however, the labors to which Wythe was subjected at this time were not without influence upon his future success. The profession of the law demands practice as well as knowledge, and it is only by drudgery that the exactness, accuracy, and closeness of thought so necessary for a good lawyer are engendered. And no doubt Wythe profited by his experience under Mr. Dewey far more than he supposed, and probably the very drudgery complained of was an important factor in enabling him, after ten years of comparative idleness, to secure for himself so high a position before the public.

He entered upon the practice of law and qualified in the court of Elizabeth City County, June 18, 1746, at the age of 20 years, but removed soon after to Spottsylvania County, where he became associated with John Lewis, an eminent lawyer in that part of the Colony, and in December, 1747, married his sister, [[Ann Lewis]], who lived only till August, 1748. Wythe continued to live in Spottsylvania some eight years after his wife's death, and we are told that he became addicted to "the amusements and dissipa-
<hr />
<div style="font-size: 85%;"><sup>5</sup> Elizabeth City County Records.</div></blockquote>

===Page 56===
<blockquote>tions of society," but certain facts seem to indicate that the foibles of his youth have been greatly exaggerated. When the General Assembly, in the early part of 1754, sent Peyton Randolph, the attorney general, to England to protest against the fee of a pistole imposed by Governor Dinwiddie upon land grants, the latter selected Wythe to hold the office of attorney general during Randolph's absence. Then in the latter part of the year, when the General Assembly raised twenty thousand pounds to repel the French, Wythe had the honor of being appointed a member of the committee charged with the important duty of cobperating with the governor in expending the money. These facts show that Mr. Wythe, when only twenty-eight years of age, was highly esteemed and well known, and really could not have been far gone in dissipation. Probably the most that can be said is that Mr. Wythe, during this period, spent some of his time in the ordinary amusements of the day, horse-racing, fox-hunting, dancing and cock-fighting-diversions in which Washington also took part, and not necessarily destructive of morals or principles.

Be that as it may, his conduct at the age of thirty underwent a change, which may have been due to the death of his elder brother in 1755, devolving upon him a large estate. Mr. Wythe returned to lower Virginia, took leave forever of all the frivolities of youth, and opening his office in Williamsburg, applied himself, unassisted by any tutor, vigorously to</blockquote>

===Page 57===
<blockquote>the study of law, of the dead languages, and of the liberal sciences. He was admitted to the bar of the General Court, and, with the incoming of Francis Fauquier, as governor, his brilliant career made its true beginning. He became the fast friend of that popular and accomplished gentleman; and the display of his talents in society and the courts caused him to be honored, in 1758, by the faculty of William and Mary College with an election as the representative of that corporation in the House of Burgesses. As his predecessors in this capacity had been the most eminent lawyers in the colony—Edward Barradall, Beverley Randolph, and Peyton Randolph, afterwards first president of the Continental Congress—this election itself was proof of the eminence to which he had already attained, and suggestive of the still greater success which the future had in store for him. His subsequent career was eminent along many lines, but in three aspects, at least—as statesman, as teacher, and as jurist—he had few equals in the galaxy of great men that adorn the annals of Virginia. Probably the best idea that can be obtained of Mr. Wythe, in the limits of a short sketch, is to be had by considering in succession these aspects as presented in his subsequent history.

After his appearance in the House of Burgesses, in 1758, Wythe sprang at once to the front among the members. In 1759 he was appointed a member of the committee of correspondence, who were in</blockquote>

===Page 58===
<blockquote>vested with the control and direction of the colony's agent in England, Edward Montague, Esquire, of the Middle Temple. At the same session he was made one of the trustees charged with the duty of encouraging arts and manufactures in the colony by the judicious distribution of prizes and rewards. Then, in 1760, 1761, 1762, he was a member of the several committees appointed to examine and destroy all the paper money returned to the treasury for redemption. This paper money, which was issued to carry on the French and Indian War, was a legal tender, but as it was amply secured and had only short periods to run, it never occasioned any trouble in Virginia.

Mr. Wythe represented the College in the House of Burgesses till the year 1763, when he removed to his estate in Elizabeth City County, after which time he was the presiding justice of the county court, and regularly represented the county in the House of Burgesses for six years. He was one of the earliest and boldest defenders in the House of Burgesses, of the rights of the colonies, and after the British Parliament passed resolutions in March, 1764, declaratory of an intention to impose a stamp duty on the American colonies, he was one of the first to take solid ground that the only link of political connection between the colonies and Great Britain was the identity of the Crown, and that Virginia and the other colonies, were coördinate members of the British empire along with the elec-</blockquote>

===Page 59===
<blockquote>torate of Hanover and the kingdom of Great Britain—a doctrine which received its first formal exposition in a pamphlet published by Richard Bland in 1766.<sup>6</sup> When the House of Burgesses assembled in the fall of 1764, a committee was appointed, November 14, to draft suitable representations to the King, the House of Lords, and the House of Commons, respectively. The paper addressed to the Commons emanated from the pen of George Wythe, and following his declared principles, contained a vindication of the rights of America, which his colleagues subjected to material modifications. But even in the form in which the paper was finally adopted, this [[Remonstrance to the House of Commons|remonstrance against the Stamp Act]] was very bold and strong.<sup>7</sup> After the passage of the Stamp Act, despite the protests of the colonists, Mr. Henry offered his famous resolutions in 1765, but these were opposed by Mr. Wythe, as well as by Peyton Randolph, Edmund Pendleton, Richard Bland, and other Virginia worthies who had long been the habitual leaders of the House. So far as Mr. Wythe was concerned, his opposition did not proceed from any real difference of principle with Mr. Henry, but further action was deemed by him premature until answers to the memorials forwarded to England had been received.

Wythe served as a representative from Eliza-
<hr />
<div style="font-size: 85%;"><sup>6</sup> Reverend Andrew Burnaby, who visited Virginia in 1759, declared that this doctrine was, at the time of his visit, very widely held in Virginia.</div>
<div style="font-size: 85%;"><sup>7</sup> Wirt, Patrick Henry, appendix.</div></blockquote>

===Page 60===
<blockquote>beth City County till 1768, when he was elected clerk of the House of Burgesses, and removed to Williamsburg. As clerk he coöperated in all the acts of the General Assembly in opposition to the new duties on glass, lead, tea, etc., and the following incident may be given in proof: Lord Botetcourt arrived as governor in November, 1768, and an assembly was called to meet in Williamsburg, May 11, 1769, at which time the House of Burgesses, being regularly organized, entered promptly upon the consideration of American grievances. While they were engaged in the work in secret session, Botetcourt, becoming suspicious of their proceedings, sent a request to Wythe for a copy of the House Journal, but Wythe contrived to put him off till the next day. On that day, when the Governor at length took alarm and summoned the members of the House of Burgesses to the Council chamber and dissolved them, his action came too late, for the delay which Wythe had brought about had enabled the House to complete its work, which consisted in a strong and elaborate [[Remonstrance to the House of Commons|remonstrance]] against the course of the British Government.

Six years longer Mr. Wythe continued clerk of the House of Burgesses and though he had no vote his opinions had much weight, and his influence was potent in shaping affairs.

In March, 1775, he was a member of the convention of delegates which met at Richmond to provide measures for the safety of the colony, and while op-</blockquote>

===Page 61===
<blockquote>posing Patrick Henry's resolutions for organizing the militia in the different counties, he spoke in favor of Robert Carter Nicholas's proposition for raising a regular army of 10,000 men. Patrick Henry made a great speech on the occasion, and his clarion voice in favor of "Liberty or Death" has thrown discredit upon the votes of his antagonists, but it is proper to say that short enlistments were the bane of the Revolution, and Wythe saw at the outset the difficulties ahead, and lent cordial support to the sagacious scheme of Nicholas in making provision for a body of regular troops to serve during the war. Henry gave a remarkable proof of his estimate of Mr. Wythe's abilities, when he said: "Shall I light up my feeble taper before the brightness of his noontide sun? It were to compare the dull dewdrop of the morning with the intrinsic beauties of the diamond."

After the passage of Henry's measure, Wythe displayed his patriotism by joining a militia company in Williamsburg, wore a hunting shirt, carried a musket, and walked in the military parades which took place in the city during the latter part of Lord Dunmore's government.

In August, 1775, Mr. Wythe was appointed by the convention of Virginia to fill a vacancy in the Continental Congress, and in that body he strongly advocated in June of the next year, the resolutions for independence proposed by Richard Henry Lee pursuant to instructions from the convention of Vir-</blockquote>

===Page 62===
<blockquote>ginia, adopted June 12, 1776, and he demonstrated the fervor of his patriotism not long after by attaching his signature to the Declaration of Independence drawn by Jefferson.

Mr. Wythe was elected by the city of Williamsburg to the December convention of 1775, but at the time he was absent from the city in attendance upon Congress, and Joseph Prentiss, afterwards judge of the General Court, took his place. He was again elected to the celebrated convention which met at Williamsburg in June, 1776, but Edmund Randolph was his alternate, and Wythe himself was not present until the close of the session, when as one of a committee of four he joined in preparing for the use of the new commonwealth, a seal which has justly been esteemed for its romantic and classical beauty. George Mason reported it to the convention, but in Girardin's continuation of Burk's "History of Virginia" it is said that Wythe was the originator; and as Girardin wrote under the supervision of Jefferson, who was keenly alive to all such matters, there can be no reason to doubt the truth of his statement. Moreover, Wythe was one of the two entrusted with the execution of the seal, and must have penned the words describing it, which have been admired for their clearness and precision: "Virtue, the genius of the commonwealth, dressed like an Amazon, resting on a spear with one hand, and holding a sword in the other, and treading on Tyranny, represented by a man prostrate, a crown</blockquote>

===Page 63===
<blockquote>fallen from his head, a broken chain in his left hand, and a scourge in his right. In the exergue the word VIRGINIA over the head of Virtue, and underneath, the words ''Sic Semper Tyrannis''. On the reverse a group: LIBERTAS, with her wand and ''pileus''; on one side of her, CERES, with the cornucopia in one hand and an ear of wheat in the other; on the other side, AETERNITAS, with the globe and phœnix. In the exergue, these words: ''Deus Nobis Haec Otia Fecit'' (substituted later by the word ''Perseverando''). Severe in his republicanism, Wythe, like the other Virginians of the Revolution, had a scorn for "the aristocrat," and found his ideals in the Roman and Grecian Republics. Casar, Brutus, and Cicero were his names to conjure with, and his faith in the ability of man for self-government was stamped upon all his official action. While Massachusetts, Connecticut, Rhode Island, New Hampshire, along with New York, Pennsylvania, New Jersey, and Maryland, and even the United States government, clung to the old ideas of English heraldry and fashioned their seals of state on the principle of a coat of arms, Virginia, under the direction of Wythe, chose a purely classic design. She alone of the thirteen original states has no shield on which to emblazon in dazzling colors and lustrous metal the memory of feudal services, of the rich man's power and the poor man's thraldom; but the genius of her seal was made by Wythe, the Roman figure of Virtue, clad as an Amazon,</blockquote>

===Page 64===
<blockquote>holding in one hand the spear of victory and in the other the sword of authority, and sternly republican in her motto of ''Sic Semper Tyrannis''.

Mr. Wythe was after this a member of the House of Delegates, of Virginia, and on November 5, 1776, he was appointed one of a committee to revise the laws of the new state, and on December 4, 1776, Mann Page, Jr., was elected to succeed him in Congress. In May of the next year, being still a member of the House of Delegates, he defeated Robert Carter Nicholas for speaker by a vote of 37 to 33, a high tribute to his popularity and character as a man, for there were few men in the commonwealth as highly respected, for uprightness, for ability or for integrity of purpose, as his virtuous opponent. His service in the Legislature, however, was not long, as on January 14, 1778, he qualified as one of the first chancellors of the state. Ten years later, while still holding that office, he was elected a member of the Federal convention, which met in 1787 in Philadelphia. But though he appeared in the Convention, and took part in the organization, it does not seem that he remained very long, his duties as chancellor doubtless requiring his presence in Richmond. In 1788 he was elected to represent the city of Williamsburg in the State convention, called to consider the new Federal constitution proposed the previous year by the Federal convention of Philadelphia. There were one hundred and sixtyeight members. Mr. Wythe was elected chairman</blockquote>

===Page 65===
<blockquote>of the committee of the whole, in which most of the business of the convention was transacted.

During the greater part of the session he mingled very little in the debates, but when the time came for the important work of approving or rejecting the proposed Federal constitution, he left the chair, and offered a resolution of ratification, which he defended in a speech that made great impression upon the members. In this speech he admitted the imperfections of the Constitution and the propriety of some amendments, but he claimed that the excellency of its many parts could not be denied even by its warmest opponents. He thought that experience was the best guide, and that the future could alone develop the consequences, as most of the improvements that had been made in the science of government and other sciences were the results of experience. The resolution of ratification proposed by Wythe contained the proviso that "the powers granted under the Constitution being derived from the people of the United States, might be resumed by them whensoever the same should be perverted to their injury or oppression, and, therefore, that no right of any denomination could be cancelled, abridged, restrained or modified by the Congress, by the Senate or the House of Representatives acting in any capacity, by the president, or any department, or any officer of the United States, except in those instances in which the power was given by the constitutiort for those purposes." In this form Wythe's</blockquote>

===Page 66===
<blockquote>ratification was adopted, and a series of amendments drawn by Patrick Henry was recommended to Congress, several of which afterwards were approved by the states and made a part of the Constitution. After the organization of the new Federal government, Mr. Wythe allied himself, in the divisions that arose upon the construction of the Constitution with the Republican party, of which his pupil, Mr. Jefferson, was the head; and we hear of him at a later date as presiding over two of the electoral colleges, which met in Virginia to give their votes for president and vice-president of the United States.

In his character as teacher, Mr. Wythe attained to quite as high a reputation among the people of Virginia, as in the character of statesman. He was a close and indefatigable student of science and the ancient languages, as well as of the law, and he loved to discuss questions of natural philosophy with Governor Fauquier, who was himself a fellow of the Royal Society of Great Britain, and a man of real industry and great learning. Now, it chanced that from 1758 to 1764 the chair of mathematics and natural philosophy, at the college of William and Mary was filled by Dr. William Small, a man of elegant manners, of general culture, and of a peculiarly liberal and comprehensive mind. He was the intimate friend of Watt, the inventor of the steam engine, and of Erasmus Darwin, an eminent English scientist, and grandfather of the Darwin who in our day startled the world with his theory of evolution.</blockquote>

===Page 67===
<blockquote>Dr. Small left a lasting impression upon the college by introducing the lecture system, and popularizing the study of natural science, for which department in the College he went especially to England and purchased an extensive apparatus. He was a congenial and constant companion of Wythe's, and they became successively the instructors of the youthful Jefferson, who entered college in 176o, and after remaining two years under Small, studied law for five years under Wythe. It is a striking picture which the facts present of these three great men —Small, Wythe, and Jefferson—engaged at the familiar table of Governor Fauquier in erudite conversation on the laws of nature and the rights of man afterwards exemplified in the principles of the American Revolution. Indeed, there is something curious in a young law student like Thomas Jefferson choosing Mr. Wythe as his instructor, when Peyton and John Randolph, sons of his great-uncle, Sir John Randolph, were also living in Williamsburg, and were eminent lawyers and his attached friends. This circumstance, while partially explained by Mr. Wythe's reputation for learning, was doubtless chiefly attributable to the talent for teaching, which was early displayed by him, and which after some years led to his election, by the board of visitors of William and Mary College, to fill the new chair of law and police established in the institution by Mr. Jefferson at the reorganization of the college curriculum in 1779. In this professorship Mr.</blockquote>

===Page 68===
<blockquote>Wythe remained for twelve years, and he has the honor of having been the first university law professor in the United States, and the second in the English-speaking world-Sir William Blackstone, who filled the Vinerian chair of law at Oxford in 1758, being the first.

Most of the students at William and Mary College during Wythe's incumbency fell under his instructions, and we are told that his class, in 178o, numbered about forty young men; and although owing to the loss of records, not all their names are preserved, the presence among them of John Marshall, the celebrated chief-justice, and of James Monroe, who is world-known because of the governmental doctrine which bears his name, is a reasonably good indication of their intellectual superiority. One form of Wythe's instructions was the lecture system, borrowed from his friend, Dr. Small, and his subject matter was municipal and constitutional law, in the treatment of which he was far from being a servile copyist of Blackstone. Indeed, the new system of written constitutions adopted in America opened a field of thought to which Blackstone was a stranger, and Wythe has the honor of being the first regular commentator upon the changes brought about by the new instruments of government in American jurisprudence.<sup>8</sup> But
<hr />
<div style="font-size: 85%;"><sup>8</sup> Mr. Wythe's manuscript lectures were extant in iSio, when they are noticed in a letter from Judge John Tyler (father of President Tyler) to Mr. Jefferson. Judge Tyler writes in regard to them: "They are highly worthy of publication, and it is a pity that they should</div></blockquote>

===Page 69===
<blockquote>besides the lecture system, there were two other modes of instruction relied upon by Mr. Wythe, which were original with him. As the seat of government, in 1779, was removed to Richmond, the old historic capitol building at the east end of Williamsburg was left untenanted, and Wythe availed himself of this deserted structure to institute a moot court and a moot legislature in the room formerly occupied by. the General Court of the colony.

The moot court was held once or oftener every month, and Mr. Wythe and the other professors of the College sat as judges; and before an audience consisting of the most respectable of the citizens of Williamsburg, causes suggested by him were pleaded by the students "in a very lawyer-like manner," it is said. The moot legislature met every Saturday, and Mr. Wythe, forming the young men into a house of delegates, acted as speaker and took all possible pains to instruct them in rules of debate and parliamentary procedure. He was at this time engaged in revising the laws of the state, and the bills drawn up for the legislature were put in the hands of the students, and by them were very freely debated and amended. These exercises were useful, not only by reason of the instruction afforded, but because they served as a very popular relaxation after the study of text-books and attendance in the classroom.
<hr />
<div style="font-size: 85%;">be lost to society and such a monument of his memory be neglected." Letters and Times of the Tylers, vol. I, 249.</div></blockquote>

===Page 70===
<blockquote>Mr. Wythe was a warm opponent of negro slavery, and his teachings no doubt had much to do with producing that spirit of philanthropy which prevailed in Virginia till a reaction was caused, in 1833, by the violent assaults of the abolitionists. A letter, in 1785, by Mr. Jefferson to Dr. Price has a reference to the College and Mr. Wythe in connection with slavery, which is interesting: "The College of William and Mary in Williamsburg since the remodelling of its plan is the place where are collected together all the young men of Virginia under preparation for public life. They are there under the direction (most of them) of a Mr. Wythe, one of the most virtuous of characters, and whose sentiments on the subject of slavery are unequivocable. I am satisfied, if you could resolve to address an exhortation to these young men, with all that eloquence of which you are master, that its influence on the future decision of this important question would be great, perhaps decisive."

In addition to his lectures on law and police, Wythe, in 1787, opened a class in Williamsburg for the study of the higher Latin and Greek classics and the most approved English prose and poetical writers.<sup>9</sup> He asked no compensation of those who availed themselves of this opportunity, but the self-imposed labor was one of the many instances of his active philanthropy.

Mr. Wythe continued to lecture at William and
<hr />
<div style="font-size: 85%;"><sup>9</sup> Virginia Gazette, July 1787.</div></blockquote>

===Page 71===
<blockquote>Mary till 1791,<sup>10</sup> when, having been appointed sole chancellor of Virginia, he resigned his chair and removed to Richmond. At his departure the faculty testified to their appreciation of his character and ability by conferring upon him the degree of Doctor of Laws.

He nevertheless continued his roll of instructor till his death, fifteen years later; for, harassed as he was with business, he yet, for many years, in Richmond, found time to keep a private school for the instruction of a few young men. Among the last to fall under his influence was Henry Clay, who, in 1793, at the age of sixteen, became a clerk in the office of the court over which Wythe presided. In his sketch of Mr. Wythe, Mr. Clay concludes with an acknowledgment that "to no man was he more indebted, by his instructions, his advice and his example, for the intellectual improvement which he made up to the period when in his twenty-first year he finally left the city of Richmond for Kentucky." Indeed, no more suggestive or interesting painting could be had than one representing George Wythe as a teacher surrounded by those who received the benefit of his training and instruction. Some of the greatest luminaries at the bar and in politics, which the Union has produced, were instructed in law and science and led up the "Steep of fame" by George Wythe. In the list of his pupils we may enumerate two presidents of the United States, Thomas Jeffer-
<hr />
<div style="font-size: 85%;"><sup>10</sup> William and Mary College Quarterly, vol. VIII, 155.<ref>"Glimpses of Old College Life," ''William and Mary College Quarterly Historical Magazine'' 8, no 3. (January 1900), 153-160.</ref></div></blockquote>

===Page 72===
<blockquote>son and James Monroe; the greatest of America's judges, [[John Marshall]]; and a number of other prominent lights, only one degree inferior in brightness to Marshall himself—St. George Tucker; Spencer Roane; Archibald Stuart; John Wickham; John Brown, of Kentucky; James Breckenridge; John Coalter; Littleton Waller Tazewell; Buckner Thurston; [[William Munford]]; James Innis; George Nicholas; and Henry Clay.

We have spoken of Mr. Wythe's acquaintance with the ancient languages, which was very profound; but he was also proficient in Spanish and Italian, and doubtless derived great benefit in this particular by his association, while professor of law, with Charles Bellini, who held the chair of modern languages at William and Mary College like Mr. Wythe's chair, the first of its kind in the United States. William Munford, who was a pupil of his in Williamsburg, relates that he received from Mr. Wythe, after he removed to Richmond, many kind notes which were interspersed with Greek and Latin sentences, showing the evident pleasure he took in the study of those languages. While resident in Richmond, Mr. Wythe took up the study of Hebrew, pursuing it closely with grammar and dictionary, and once a week a Jewish Rabbi by the name of Seixas attended him to see how he progressed and to give him advice.

The character of Mr. Wythe, as a representative of the legal profession, comes last to be considered.</blockquote>

===Page 73===
<blockquote>After he had once conceived the idea of devoting himself to the mastery of the law, he applied himself with unwearied diligence to the thorough study of all the great English and Latin law writers. He read deeply and pondered upon what he read, and to his almost universal knowledge upon the subject he united an appreciation of the dignity of his profession which never permitted him to champion an unjust cause. It was his habit, in case he entertained any doubts of the truth of his client's statements, to require of him an oath; and if in any stage of the case he found that deception had been practiced upon him, the fee was returned and the case abandoned. His experience as a practitioner of law extended from 1746 to 1777; and from the County Court he passed, in due time, to the General Court, where his industry was quickened, and his emulation excited by a competition with men who had studied at the English Inns of Court.

Among his rivals at the bar, the most formidable was Edmund Pendleton, who resembled Lord Mansfield in the character of his intellect, and who from his twelfth year had never lost a day from the eager pursuit of his profession. He had the advantage of Wythe in personal appearance which was singularly handsome, in his voice which was clear and silver-toned, and in his manners which were charming and fascinating. But as actors on the stage, while Pendleton was cautious and conservative, Wythe was bold and aggressive. Then,</blockquote>

===Page 74===
<blockquote>Pendleton was far from possessing the information of Wythe, and he was rather a great advocate than a deep lawyer. Nevertheless, in debate, while Wythe was more solidly argumentative, Pendleton was more subtle and captivating; and in their frequent contests at the bar the advantage, in the popular judgment, lay as a rule with Pendleton. Wythe generally bore these apparent defeats with reserve and equanimity, but he lacked neither quickness of parts nor colloquial talents; and sometimes, when aroused by some improper remark, he would swiftly retort with terrible severity. A story is told of a remark made by him to Lord Dunmore, which illustrates his wit and talent for biting sarcasm. One day in the General Court, where Lord Dunmore presided as chief justice, Wythe and Robert Carter Nicholas appeared for one side of the cause, and Mr. Pendleton for the other. The case being called, Mr. Wythe expressed himself in favor of an immediate trial, but Pendleton desired a continuance, as Mr. Mason, his colleague, was absent and there were two counsel on the other side. Lord Dunmore did not like Wythe, and, forgetting the dignity of his position, had the indelicacy to say: "Go on, Mr. Pendleton, for you will be a match for both of them." "With your Lordship's assistance," retorted Wythe, bowing with mock politeness. Dunmore showed by his change of countenance that he felt the sting which his imprudence had provoked, but he said nothing, and the</blockquote>

===Page 75===
<blockquote>audience was delighted with Wythe's intrepidity. As a member of the committee to revise the laws of the new commonwealth of Virginia, Mr. Wythe's work was highly important. The members met at Fredericksburg, January 13, 1777, and distributed the work. The common law and English statutes to 4 James I. when the colony was established at Jamestown, were assigned to Jefferson; the British statutes, from that period to the time of the revisal, to Mr. Wythe; and the Virginia laws to Mr. Pendleton. They were employed in this work from that time to February, 1779, when the three great lawyers met at Williamsburg and day by day examined critically their respective labors, scrutinizing and amending until they had agreed on the whole. The work, when completed, consisted of one hundred and twenty-six bills, making a printed folio of ninety pages only. All the ancient laws, found inapplicable to the powers of government as then organized, or founded on principles foreign to republican spirit, and all others which long before such change had been found oppressive to the people, but could not be repealed while the regal power continued, were omitted; and the statutes recommended were relieved of their verbosity and endless tautology. The bills prepared by the revisers were reported to the Assembly on June i8, 1779, and published by its order. Some of these bills were occasionally adopted before 1785; but it was not until that year that the report of the revisers was taken</blockquote>

===Page 76===
<blockquote>up in a regular manner, when most of them, under the management of James Madison, passed into law.

In the meantime, an act was passed in October, 1777, to create for the state a court of chancery, which, as first composed, consisted of Pendleton, Wythe, and Robert Carter Nicholas; and in 1783 the members of this court were instructed by the Legislature to cause all the acts of assembly, subsequent to 1779, and the ordinances of the convention in force, to be collected into one code with proper index and marginal notes. The then chancellors, Edmund Pendleton, George Wythe, and John Blair made a communication on the subject in November, 1783, and in 1785 their edition was printed at Richmond by Thomas Nicholson and William Prentiss. Though generally called the Chancellors' Revisal, it was rather a collection of the laws than a revisal of them.

By virtue of his office as one of the three chancellors of the state, Mr. Wythe was also a member of the Supreme Court of Appeals, and in 1782 there came before this court an interesting case entitled in the reports Commonwealth against Caton, involving the question of the overruling power of the judiciary. It appears that three men were tried by the General Court and condemned to death, but to escape execution they made application to the pardoning power, which, pursuant to the Constitution, was vested by an act of the Legislature in the two Houses of the General Assembly; and the House of Dele-</blockquote>

===Page 77===
<blockquote>gates, making only one branch of the General Assembly, assumed to pass a resolution of pardon, which was pleaded at the bar by the prisoners. The Attorney-General denied the validity of the plea, and the General Court adjourned the case "for novelty and difficulty" to the Court of Appeals. Here Pendleton, the president of the court, did not choose to regard the act of the House of Delegates as indicative of an intention to assert power, since, by sending their resolution to the Senate, they appeared to have suspended its operation until the consent of the Senate could be obtained. He therefore decreed that really no action had been taken by either branch, and overruled the plea of pardon, simply referring to the question of the controlling authority of the judiciary as a "tremendous question," which he trusted the prudence of the legislature, by making the principles of the Constitution the great rule to direct the spirit of their laws, would forever render unnecessary to decide. But his colleague, Wythe, always bolder in action and greater in spirit, met the issue without reserve; and with a burst of eloquence, which even now is calculated to stir the blood and quicken the heart, spoke from the bench as follows:</blockquote>

<blockquote><div style="font-size: 85%;">Among all the advantages, which have arisen to mankind, from the study of letters, and the universal diffusion of knowledge, there is none of more importance, than the tendency they have had to produce discussions upon the respective rights of the sovereign and the subject; and upon the powers which the different branches of government may exercise. For, by this means, tyranny</div></blockquote>

===Page 78===
<blockquote><div style="font-size: 85%;">has been sapped, the departments kept within their own spheres, the citizens protected, and general liberty promoted. But this beneficial result attains to higher perfection, when, those who hold the purse and the sword differing as to the powers which each may exercise, the tribunals who hold neither are called upon to declare the law impartially between them. For thus the pretensions of each party are fairly examined, their respective powers ascertained, and the boundaries of authority peaceably established. Under these impressions I approach the question which has been submitted to us; and, although it was said the other day by one of the judges, that, imitating that great and good man, Lord Hale, he would sooner quit the bench than determine it, I feel no alarm; but will meet the crisis as I ought; and, in the language of my oath of office, will decide it, according to the best of my skill and judgment.

I have heard of an English chancellor who said, and it was nobly said, that it was his duty to protect the rights of the subject against the encroachments of the crown; and that he would do it, at every hazard. But if it was his duty to protect a solitary individual against the rapacity of the sovereign, surely it is equally mine to protect one branch of the legislature and, consequently, the whole community, against the usurpations of the other; and, whenever the proper occasion occurs, I shall feel the duty and fearlessly perform it. Whenever traitors shall be fairly convicted, by the verdict of their peers before the competent tribunal; if one branch of the legislature, without the concurrence of the other, shall attempt to rescue the offenders from the sentence of the law, I shall not hesitate, sitting in this place, to say to the general court, ''Fiat justitia, ruat cœlum''; and, to the usurping branch of the legislature, " you attempt worse than a vain thing; for, although, you cannot succeed, you set an example which may convulse society to its centre." Nay more, if the whole legislature, an event to be deprecated, should attempt to overleap the bounds prescribed to them by the people, I, in administering the public justice of the country, will meet the united powers at my</div></blockquote>

===Page 79===
<blockquote><div style="font-size: 85%;">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."</div>

The principle thus eloquently affirmed by George Wythe, for the first time in the history of the world, and now universally accepted, has been pronounced by Lord Brougham "the greatest refinement to which any state of circumstances has ever given rise or to which any age has ever given birth."

In 1788 the number of judges in the Court of Chancery was reduced to one, and the court was required to meet four times in every year at the capitol in Richmond. Thus Wythe became sole chancellor of Virginia, and his jurisdiction extended over the whole state till i8oi, when the state was divided into three chancery districts, and he was assigned to what is known as the Richmond District. The seal of the High Court of Chancery was prepared by Wythe, who consulted the celebrated painter, Benjamin West, of Pennsylvania; and the devices adopted are a perpetual memento of the stern and virtuous impartiality that characterized the office. Wythe took the legend of Sisamnes, which, as told by Herodotus, asserts that for accepting a bribe King Cambyses had Sisamnes killed and flayed, and his skin cut in straps and stretched about the judicial seat. He then appointed, as judge, Sisamnes' son, Otannes, and told him to remember the seat upon which he sat to administer justice.

In another case, Judge Wythe showed the strength</blockquote>

===Page 80===
:''Main article: [[Henry Clay to B. B. Minor, 3 May 1851]]''

<blockquote>and independence of character which so eminently distinguished him. The recovery of debt due by American citizens to British subjects was made the subject of the sixth article of the Treaty of Commerce negotiated by John Jay, in 1794, with Great Britain. Now, the enforcement of this article was very unpopular in Virginia, since, instead of performing their engagements under the treaty of peace the British had not withdrawn their troops from the western posts, nor taken any steps to pay for the slaves abstracted during the war. Chancellor Wythe was the first judge to decide that the claims were recoverable, and his decision was given in a case in which the complainant was an alien and late enemy, and the respondent was the state of Virginia. This decision rendered him unpopular in Virginia for a time, but it was not long before the condemnation was forgotten in admiration for the man's independent and disinterested conduct. Thus Mr. Wythe continued in the office of chancellor for many years, and 'his course was deeply impressed with the most scrupulous impartiality, rigid justice, unremitting assiduity, and the purest unselfishness.

Mr. Clay tells the following stories of Mr. Wythe:

<div style="font-size: 85%;">A neighbor of his, Mr. H———, who had the reputation of being a West India nabob, and who at the time had an important suit pending in the Court of Chancery, sent him a demijohn of old arrack and an orange tree for his niece, Miss Nelson, then residing with him. When the articles were brought into Mr. Wythe's house, with the message from the donor, Mr. Wythe requested the servant to take them back to his master and to</div></blockquote>

===Page 81===
<blockquote><div style="font-size: 85%;">present to him his respects and thanks for his kind intentions, but to say that he had long ceased to make any use of arrack, and that Miss Nelson had no conservatory in which she could protect the orange tree. I was amused at another scene, which I witnessed, between him and the late Justice (Bushrod) Washington of the Supreme Court, then practising law in the city of Richmond. He called on the Chancellor with a bill of injunction in behalf of General ———, to restrain the collection of a debt. The ground of the application was that the creditor had agreed to await the convenience of General ———, for the payment of the debt, and that it was not then convenient to pay it. The Chancellor attentively read the bill through, and deliberately folding it up, returned it to Mr. Washington, enquiring with an ineffable smile upon his countenance, "Do you think, sir, that I ought to grant this injunction?" Mr. Washington blushed and observed that he had presented the bill at the earnest instance of his client.</div>

So great was the love and admiration entertained in Virginia for Mr. Wythe that Virginians, who were fond of finding ideals in classic literature and never tired of appealing to the example of Roman and Grecian heroes, were in the habit of comparing Wythe to Aristides, and delighted to think that the appellation of "The Just" could not be more appropriately applied than to one of their own countrymen.

Mr. Wythe was generally sustained in his opinions by the Supreme Court, but, of course, he was sometimes reversed, and in 1795 he published a book entitled "Decisions of Cases in Virginia by the High Court of Chancery, with remarks upon decrees by the Court of Appeals reversing some of those deci-</blockquote>

===Page 82===
<blockquote>sions." Perhaps the chief object of Mr. Wythe was to make a contribution to the legal literature of the country, but there can be no doubt that he also desired to vindicate his decisions from the opposite opinions of the Appellate Court. In more than one of his "comments" there is just a suspicion of personal feeling, for it is said that, owing to their frequent collisions before the public, his relations with Mr. Pendleton, president of the Court of Appeals, were somewhat constrained. Mr. Wythe's Reports show great learning, and familiarity with Greek and Latin authors, which are frequently quoted, but his English is very often involved and complicated-a fact which may be partially due to his having to depend upon a young amanuensis to take down his words, rheumatism or gout having deprived him of the use of his right hand. Before this misfortune befell him, Mr. Wythe showed in the character of his handwriting the spirit of simplicity which distinguished his every day conduct. He wrote in two handwritings—one resembling print, and the other a running hand; and it was his practice to use the small "i" for the first person, and never to begin the sentence with a capital other than when it began a paragraph. Mr. Jefferson, his pupil, who wrote with greater correctness, adopted also the same rules of chirography, though he did use the capital "''I''."

About 1755, Wythe, who, as stated, had lost his first wife in 1747, married [[Elizabeth Taliaferro]], daughter of Richard Taliaferro, of James City</blockquote>

===Page 83===
<blockquote>County. His residence in Williamsburg, which was the gift of his father-in-law, is still standing, and is situated near the old Episcopal church facing the Palace Green.<sup>11</sup> It is a large brick building, and, when the American army in pursuit of Lord Cornwallis encamped in the neighborhood, this old house was selected for the headquarters of the Commander- in-chief, and is cherished and venerated for its two-fold associations with the names of Wythe and Washington. When Wythe removed to Richmond, in 1791, he resided in a yellow wooden house with a hip roof, situated on the corner of Fifth and Grace streets, and the garden attached to it extended to Franklin street and embraced half the square. For several years after Wythe's decease the lot was cultivated as a market garden, and the house, after lying untenanted many years, was taken possession of by some youths of the city, who knocked down the partition, and used it as a play house, where amateur theatricals were had. The garden and ruins of the house have now made way for some of Richmond's handsomest residences. The only child Mr. Wythe ever had died in infancy and he outlived his second wife several years.

Mr. Wythe's instincts, like those of his pupil, Mr. Jefferson, were all in favor of personal liberty, and he showed the faith that was in him by his admonitions, as already noticed, to the young men under his care, and by the enfranchisement in his will of three of
<hr />
<div style="font-size: 85%;"><sup>11</sup> William and Mary College Quarterly, vol. XII, 124.<ref>"Will of Richard Taliaferro," ''William and Mary College Quarterly Historical Magazine'' 12, no. 2 (October 1903), 124-125.</ref></div></blockquote>

===Page 84===
<blockquote>his own slaves, to whom he gave sufficient to free them from want. One of these, a negro boy, he had instructed in the Latin and Greek languages, and the clause in the will for his support was coupled with the provision that if the negro boy should die before his full age, the bequest for him should enure for the benefit of George Wythe Sweeney, one of his great-nephews. This clause is believed to have been the innocent cause of Judge Wythe's decease. Avarice overpowered the favorite nephew, and to get immediate possession of the devise, he put arsenic in a pot of coffee which he supposed the negro boy would be the only one to use. But it happened that Judge Wythe also drank of the coffee, and both were fatally affected. The negro boy died first, and the dying Chancellor made haste to revoke all the devises to his wicked nephew, and by a codicil left the estate to the other grandchildren of his sister, to be equally divided among them.

The inspiration of duty was with him to the last, for though tortured on the bed of sickness for over a week by the agonies produced by the poison, his thought kept reverting to the cases pending in court, and he expressed much regret over the delay and consequent expense which his death would impose upon the parties to suits. He died in the midst of this benevolent anxiety, June 8, 1806, in the eighty-first year of his age, and among the last words he uttered were: "Let me die righteous!"

George Wythe Sweeney was arrested, and in Sep-</blockquote>

===Page 85===
<blockquote>tember, 1806, was tried at the bar of the General Court for the murder of his uncle and the negro boy, but for lack of legal testimony he was acquitted by the jury, a result which did not, however, shake the confidence of the people at large in the guilt of the accused. He was not released at once; for, as four other indictments had been found against him for a misdemeanor in obtaining money the preceding April from the Bank of Virginia upon a false check in the name of Wythe, he was tried for this matter, convicted and condemned to six months in jail and one hour's exposure in the pillory in the market house in the city of Richmond. But this sentence was never executed, as, upon a motion for an arrest of judgment, the court suspended the punishment, and the prosecuting attorney entered a ''nolle prosequi''. The unfortunate man then sought refuge of the west, where he died prematurely and miserably.

Mr. Wythe's death created a profound impression in Virginia; he was given a public funeral in which the state and municipal authorities in all departments joined, and he was buried in the cemetery of old St. John's Church, Richmond, where Patrick Henry made his great speech in 1775 in favor of arming the militia of the colony. William Munford, Wythe's friend and pupil, delivered the [[Oration, Pronounced at the Funeral of George Wythe|funeral oration]], and bore testimony to the quiet Christian virtues of which he was possessed. The current publications express the public sentiment. The</blockquote>

===Page 86===
:''Main articles: [[Richmond Enquirer, 10 June 1806]]; [[Chancellor Wythe's Death]]''

<blockquote>Richmond Enquirer [[Richmond Enquirer, 10 June 1806|commented upon the funeral ceremonies]] as follows:</blockquote>

<blockquote><div style="font-size: 85%;">Need it be said that the crowd which assembled in the capitol was uncommonly numerous and respectable? After the delivery of a funeral oration by Mr. William Munford, a member of the Executive Council, the procession set out towards the church. It is no disparagement to the virtues of the living to assert that there is not perhaps another man in Virginia whom the same solemn procession would have attended to the grave. Let the solemn and lengthened procession which attended him to the grave declare the loss which we have sustained!</div>

Thus ended the career of George Wythe, and this sketch may be concluded with some few further testimonials to his worth.

George Wythe Munford, son of William Munford, above named, thus recorded what he had learned from his father, and from others who knew Mr. Wythe:

<div style="font-size: 85%;">As a chancellor, in his court-room, in the basement of the Capitol, which was rarely occupied by more than a few members of the bar and a few suitors, without insignia of office and only his innate dignity to support him, men might transact their business without reflecting upon the inestimable value of a judge uncontaminated by prejudice or partiality, or meaner selfishness, upon whose pure decision their property depended. They knew he held the even scales of justice well balanced in his hands, and that nothing but undoubted equity and law could turn those scales to the right or left; still, no outward demonstration of more than ordinary respect was ever exhibited. In these days, when it is not uncommon to hear notable contrasts drawn between some unworthy judges who have soiled the judicial ermine and</div></blockquote>

===Page 87===
<blockquote><div style="font-size: 85%;">brought their decisions and illegal acts into disrepute and themselves into contempt, it may not be considered useless to review some incidents in the life and character of such a man as George Wythe, and hold him up as an exemplar of a patriot, jurist, and pure Virginian. It is a pleasure to us to dwell for a moment upon the personal appearance of this remarkable man.

He was one of those that a child could approach without hesitating or shrinking,— would talk to, in its innocent prattle, without constraint of fear,— would lean upon, and, looking in his face, return a sympathetic smile. He was one of those before whom a surly dog would unbend, and wag his tail with manifest pleasure, though never seen before. Animals and children are guided in their affections or dislikes by the countenance and the manner.

His stature was of the middle size. He was well-formed and proportioned, and the features of his face manly, and engaging. In his walk, he carried his hands behind him, holding the one in the other, which added to his thoughtful appearance. In his latter days he was very bald. The hair that remained was uncut, and worn behind, curled up in a continuous roll. His head was very round, with a high forehead; well-arched eyebrows; prominent blue eyes, showing softness and intelligence combined; a large aquiline nose; rather small, but well-defined mouth; and thin whiskers, not lower than his ears. There were sharp indentations from the side of the nose down on his cheek, terminating about an inch from the corner of his mouth; and his chin was well-rounded and distinct. His face was kept smoothly shaven; his cheeks, considerably furrowed from the loss of teeth; and the crow's feet very perceptible in the corners of the eyes. His countenance was exceedingly benevolent and cheerful.

His dress was a single-breasted black broadcloth coat, with a stiff collar turned over slightly at the top, cut in front Quaker fashion; a long vest, with large pocket-flaps and straight collar, buttoned high on the breast, showing the ends of the white cravat that filled up the bosom. He wore shorts; silver knee</div></blockquote>

===Page 88===
:''Main article: [[Henry Clay to B. B. Minor, 3 May 1851]]

<blockquote><div style="font-size: 85%;">and shoe buckles; was particularly neat in his appearance, and had a ruddy healthy hue. He had a regular habit of bathing, winter and summer, at sunrise. He would put on his morning wrapper, go down with his bucket to the well in the yard, which was sixty feet deep and the water very cold, and draw for himself what was necessary. He would then indulge in a potent shower-bath, which he considered the most inspiring luxury. With nerves all braced, he would pick up the morning Enquirer, established about two years before, and seating himself in his arm-chair, would ring a little silver bell for his frugal breakfast. This was brought immediately by his servant woman, Lydia Broadnax, who understood his wants and his ways. She was a servant of the olden time, respected and trusted by her master, and devoutly attached to him and his -one of those whom he had liberated, but who lived with him from affection.</div>

Nathaniel Beverley Tucker, son of St. George Tucker, Wythe's successor in the chair of law at the College of William and Mary, wrote thus of his early recollections of Wythe:

<div style="font-size: 85%;">I have still in my mind's eye a tall, pale, extenuated old man that I used to see walking silent and alone before the door, and whom we boys always beheld with a feeling akin to superstitious awe.</div>

Then, Henry Clay used these words:

<div style="font-size: 85%;">Mr. Wythe's personal appearance and his personal habits were plain, simple and unostentatious. His countenance was full of blandness and benevolence, and I think he made, in his salutations of others, the most graceful bow that I have ever witnessed. A little bent by age, he generally wore a grey coating. And when walking carried a cane. Even at this moment, after the lapse of more than half a century since I last saw him, his image is distinctly engraved on my mind."</div></blockquote>

===Page 89===

:''Main article: [[Notes for the Biography of George Wythe]]''

<blockquote>Finally, Thomas Jefferson's estimate of Wythe was as follows:</blockquote>

<blockquote><div style="font-size: 85%;">No man ever left behind him a character more venerated than George Wythe. 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, without the avarice of the Roman; for a more disinterested person never lived. Temperance and regularity in all his habits gave him general good health, and his unaffected modesty and suavity of manners, endeared him to every one. He was of easy elocution, his language chaste, methodical in the arrangement of his matter, learned and logical in the use of it, and of great urbanity in debate; not quick of apprehension, but, with a little time, profound in penetration, and sound in conclusion. In his philosophy he was firm, and neither troubling, nor perhaps trusting any one with his religious creed, he left the world to the conclusion, that that religion must be good which could produce a life of such exemplary virtue.

His stature was of the middle size, well formed and proportioned, and the features of his face were manly, comely, and engaging. Such was George Wythe, the honor of his own time and the model of future times.</div></blockquote>

<blockquote>The salient points in Wythe's career may be summed up as follows: As a statesman he was identified with the most advanced views as to the relations of the colonies with Great Britain, and both defended and signed the Declaration of Independence. He was the author of the beautiful state seal of Virginia and one of the chief causes of the adoption of the Federal Constitution by Virginia; as a</blockquote>

===Page 90===
<blockquote>teacher, he was the first law professor in the United States and set the example of moot courts and moot legislatures. And as a lawyer and judge, he was profound and absolutely just, had a great part in shaping the first laws of the infant commonwealth, was the first to lay down the great principle of the overruling power of the judiciary, and dared to afford the example, as he did in the British debt cases, of a judge utterly fearless of popular influence.<sup>12</sup>
<hr />
<div style="font-size: 85%;"><sup>12</sup> Authorities: Hening, Statutes at Large; Grigsby, Convention of 1766; Journal of the House of Burgesses; Sanderson, [[Biography of the Signers to the Declaration of Independence|Signers of the Declaration of Independence]]; Munford, [[Chancellor Wythe's Death|Two Parsons]], 1884; Wythe, [[Memoir of the Author|Chancery Cases, 2d ed.]], by B. B. Minor; Munford, [[Oration, Pronounced at the Funeral of George Wythe|Oration on Wythe's death]] in Richmond Enquirer, June 10, 1805 [''sic''];<ref>The correct date is June 10, 1806.</ref> 4 Call's Reports, 10; Henry Clay, [[Henry Clay to B. B. Minor, 3 May 1851|Sketch of George Wythe]], in Virginia Historical Register, vol. v, 162; Elizabeth City County Records; Hayden, Virginia Genealogies, p. 381; Virginia Cases, annotated, 1903; William and Mary College Quarterly Historical Magazine; Burk, History of Virginia; Wirt, Life of Patrick Henry.</div></blockquote>

==External links==

Read this book in [http://books.google.com/books?id=v_E_AAAAYAAJ&pg=PA51 Google Books].

==References==
<references/>

[[Category:Biographies (Articles)]]

Great American Lawyers

2015-02-20T14:02:19Z

Jamorris01: /* Page 59 */

{{DISPLAYTITLE:''Great American Lawyers''}}
[[File:LewisGreatAmericanLawyersTitle1907.jpg|link={{filepath:TylerGreatAmericanLawyers1907.pdf}}|thumb|300px|Title page from volume one of ''[https://catalog.swem.wm.edu/law/Record/216069 Great American Lawyers]'', edited by William Draper Lewis, Philadelphia, PA: John C. Winston, 1907.]]
[[File:GreatAmericanLawyers1907Wythe.jpg|thumb|300px|Illustration from ''[https://catalog.swem.wm.edu/law/Record/216069 Great American Lawyers]'', captioned 'From an engraving in the [http://www.lva.virginia.gov/ Virginia State Library] at Richmond, Virginia. The source of the engraving and name of artist are unknown.' This engraving is a copy by J.B. Longacre, from an original by William Satchwell Leney published in the ''[[Memoirs of the Late George Wythe, Esquire|American Gleaner]]'' in 1807.]]
Lyon Gardiner Tyler's biography of [[George Wythe]] from Vol. 1 of [[Media:TylerGreatAmericanLawyers1907.pdf|''Great American Lawyers'']], edited by William Draper Lewis, (Philadelphia, Pennsylvania: John C Winston, 1907), 51-90.<ref>Lyon Gardiner Tyler, "George Wythe, 1726-1806," in [[Great American Lawyers#Page 84|''Great American Lawyers'']], ed. William Draper Lewis (Philadelphia, PA: John C. Winston, 1907), 51-90.</ref>

==Chapter text==
===Page 51===
<blockquote><center>'''GEORGE WYTHE.'''<br />
1726-1806.<br />
BY<br />
LYON GARDINER TYLER,<br />
''President of the College of William and Mary.''</center><br />

GEORGE WYTHE was descended from an honorable line of ancestors, who had held for generations leading positions in the county of Elizabeth City, in the colony of Virginia. Thomas Wythe, his great grandfather, came to Virginia about 1680, and was a magistrate of Elizabeth City County for many years. He died in 1694, leaving a son of the same name, who was born in 1670, married Ann Sheppard, the widow of Quintilian Guthericke, one of the first trustees of Hampton, and died a few months after his father in 1694, leaving issue two small children, Thomas and Ann. Thomas, who was the third in descent and father of George Wythe, was born about 1691, and lived to be a man of importance in the colony. He was repeatedly elected to the House of Burgesses, and served as a member at the sessions beginning in 1720, 1723, and 1726. He married in 1720 Margaret Walker, a lady of good education for the times in which she lived.<sup>1</sup> She
<hr />
<div style="font-size: 85%;"><sup>1</sup> Elizabeth City County Records.</div></blockquote>

===Page 52===
<blockquote>was the daughter of George Walker, of Elizabeth City County, and Ann Keith, daughter of George Keith, a celebrated preacher and scholar from whom George Wythe inherited his Christian name and probably much of his talent.

Keith was born at Aberdeen, Scotland, in the year 1638, and was educated at the University in his native city. He was originally connected with the Kirk of Scotland, but soon after taking the degree of Master of Arts he joined the Quakers, and for thirty years was one of their most eminent champions in England and America. He had extraordinary native talent to which he added an extensive knowledge of mathematics and the ancient languages. In 1682 he came to East New Jersey, and in 1689 he he removed to Philadelphia. In 1694 he broke with William Penn and the Quakers, and in 1700 joined the Church of England. Having preached in various places in England, he returned to America, in 1702, as the first missionary to America of the "Society for Propagating the Gospel in Foreign Parts," of the English Church.

He travelled and preached in all the governments belonging to the Crown of England, between Piscataqua river and North Carolina, making thousands of converts to the English church and winning high reputation by his talents as a speaker and controversialist.<sup>2</sup> Anne, his daughter, married, as stated,
<hr />
<div style="font-size: 85%;"><sup>2</sup> Sketch of George Keith, in Sprague, Annals of the American Church, pp. 25-30.</div></blockquote>

===Page 53===
<blockquote>George Walker, of Elizabeth City County, gunner and storekeeper of the fort at Point Comfort in 1723. He was a Quaker, and when George Keith abjured the faith of the sect, religious differences arose between Walker and his wife, whose admiration for her father made her a willing follower in his ways. Keith in his diary tells of spending ten days at the home of George Walker by James river and says of his daughter: "She is fully come off from the Quakers and is a zealous member of the Church of England, and brings up her children, so many of them as are capable through age, in the Christian religion; praise be to God for it." Walker, it appears, did not like the action of his wife and tried to restrain her and her children from attending the parish church, and Ann, who possessed the spirit of her father, appealed, in 1708, to the governor and council, who entered an order that George Walker should not prevent her from enjoying the free exercise of her religion.<sup>3</sup> These differences gradually wore away and twenty years later Samuel Bownas, a Quaker preacher, related that on the invitation of George Walker, he spent four nights at Walker's home on the "Strawberry banks," and found Mrs. Walker "more loving" than he had expected. "She was George Keith's daughter," he writes, "and in her younger days showed great dissatisfaction with Friends, but after her father's death the edge of that bitterness abated, and her husband was very loving
<hr />
<div style="font-size: 85%;"><sup>3</sup> William and Mary College Quarterly, vol. IX, 127.</div></blockquote>

===Page 54===
<blockquote>and hearty to Friends, frequently having meetings at his house."

Their daughter, Margaret, in 1719, married, as stated, Thomas Wythe, who died in 1729, leaving three little children—Thomas, George, and Ann.<sup>4</sup> Thomas lived to be a man and a representative in the Assembly, and died, without children, in 1755. Ann married Charles Sweeney, and her grandson [[George Wythe Sweeney]], as will be seen, has a melancholy connection with her eminent brother George Wythe's death. George, the second son, was born at the house of his father on Back river, in Elizabeth City County, in 1726, and the building, a brick structure of medium size, is still standing.<ref>Chesterville plantation.</ref> The elder brother being the heir-at-law, it is said that their mother's moderate circumstances induced her to undertake George's education herself. She taught him the Latin grammar and to read the Colloquies of Corderius, and also aided him in the rudiments of Greek, for although she did not understand the language herself, yet she knew the alphabet and assisted him in the translation by holding the dictionary and enabling him the more readily to compare the English with the Greek version of the Testament.

After a few years his mother also died; and with the limited scholastic education acquired under her guidance he was present a short time at the college of William and Mary, probably in the grammar
<hr />
<div style="font-size: 85%;"><sup>4</sup> Will of Thomas Wythe in Elizabeth City County Records.</div></blockquote>

===Page 55===
<blockquote>school, and then was sent to Prince George County to study law under Stephen Dewey, an eminent lawyer, who married his aunt, Elizabeth Walker.<sup>5</sup> Mr. Dewey confined him to the drudgery of his office, with little or no attention to his instruction in the general science of law, and in fact treated him, as Wythe said in after years, with "neglect." Very probably, however, the labors to which Wythe was subjected at this time were not without influence upon his future success. The profession of the law demands practice as well as knowledge, and it is only by drudgery that the exactness, accuracy, and closeness of thought so necessary for a good lawyer are engendered. And no doubt Wythe profited by his experience under Mr. Dewey far more than he supposed, and probably the very drudgery complained of was an important factor in enabling him, after ten years of comparative idleness, to secure for himself so high a position before the public.

He entered upon the practice of law and qualified in the court of Elizabeth City County, June 18, 1746, at the age of 20 years, but removed soon after to Spottsylvania County, where he became associated with John Lewis, an eminent lawyer in that part of the Colony, and in December, 1747, married his sister, [[Ann Lewis]], who lived only till August, 1748. Wythe continued to live in Spottsylvania some eight years after his wife's death, and we are told that he became addicted to "the amusements and dissipa-
<hr />
<div style="font-size: 85%;"><sup>5</sup> Elizabeth City County Records.</div></blockquote>

===Page 56===
<blockquote>tions of society," but certain facts seem to indicate that the foibles of his youth have been greatly exaggerated. When the General Assembly, in the early part of 1754, sent Peyton Randolph, the attorney general, to England to protest against the fee of a pistole imposed by Governor Dinwiddie upon land grants, the latter selected Wythe to hold the office of attorney general during Randolph's absence. Then in the latter part of the year, when the General Assembly raised twenty thousand pounds to repel the French, Wythe had the honor of being appointed a member of the committee charged with the important duty of cobperating with the governor in expending the money. These facts show that Mr. Wythe, when only twenty-eight years of age, was highly esteemed and well known, and really could not have been far gone in dissipation. Probably the most that can be said is that Mr. Wythe, during this period, spent some of his time in the ordinary amusements of the day, horse-racing, fox-hunting, dancing and cock-fighting-diversions in which Washington also took part, and not necessarily destructive of morals or principles.

Be that as it may, his conduct at the age of thirty underwent a change, which may have been due to the death of his elder brother in 1755, devolving upon him a large estate. Mr. Wythe returned to lower Virginia, took leave forever of all the frivolities of youth, and opening his office in Williamsburg, applied himself, unassisted by any tutor, vigorously to</blockquote>

===Page 57===
<blockquote>the study of law, of the dead languages, and of the liberal sciences. He was admitted to the bar of the General Court, and, with the incoming of Francis Fauquier, as governor, his brilliant career made its true beginning. He became the fast friend of that popular and accomplished gentleman; and the display of his talents in society and the courts caused him to be honored, in 1758, by the faculty of William and Mary College with an election as the representative of that corporation in the House of Burgesses. As his predecessors in this capacity had been the most eminent lawyers in the colony—Edward Barradall, Beverley Randolph, and Peyton Randolph, afterwards first president of the Continental Congress—this election itself was proof of the eminence to which he had already attained, and suggestive of the still greater success which the future had in store for him. His subsequent career was eminent along many lines, but in three aspects, at least—as statesman, as teacher, and as jurist—he had few equals in the galaxy of great men that adorn the annals of Virginia. Probably the best idea that can be obtained of Mr. Wythe, in the limits of a short sketch, is to be had by considering in succession these aspects as presented in his subsequent history.

After his appearance in the House of Burgesses, in 1758, Wythe sprang at once to the front among the members. In 1759 he was appointed a member of the committee of correspondence, who were in</blockquote>

===Page 58===
<blockquote>vested with the control and direction of the colony's agent in England, Edward Montague, Esquire, of the Middle Temple. At the same session he was made one of the trustees charged with the duty of encouraging arts and manufactures in the colony by the judicious distribution of prizes and rewards. Then, in 1760, 1761, 1762, he was a member of the several committees appointed to examine and destroy all the paper money returned to the treasury for redemption. This paper money, which was issued to carry on the French and Indian War, was a legal tender, but as it was amply secured and had only short periods to run, it never occasioned any trouble in Virginia.

Mr. Wythe represented the College in the House of Burgesses till the year 1763, when he removed to his estate in Elizabeth City County, after which time he was the presiding justice of the county court, and regularly represented the county in the House of Burgesses for six years. He was one of the earliest and boldest defenders in the House of Burgesses, of the rights of the colonies, and after the British Parliament passed resolutions in March, 1764, declaratory of an intention to impose a stamp duty on the American colonies, he was one of the first to take solid ground that the only link of political connection between the colonies and Great Britain was the identity of the Crown, and that Virginia and the other colonies, were coördinate members of the British empire along with the elec-</blockquote>

===Page 59===
<blockquote>torate of Hanover and the kingdom of Great Britain—a doctrine which received its first formal exposition in a pamphlet published by Richard Bland in 1766.<sup>6</sup> When the House of Burgesses assembled in the fall of 1764, a committee was appointed, November 14, to draft suitable representations to the King, the House of Lords, and the House of Commons, respectively. The paper addressed to the Commons emanated from the pen of George Wythe, and following his declared principles, contained a vindication of the rights of America, which his colleagues subjected to material modifications. But even in the form in which the paper was finally adopted, this [[Remonstrance to the House of Commons|remonstrance against the Stamp Act]] was very bold and strong.<sup>7</sup> After the passage of the Stamp Act, despite the protests of the colonists, Mr. Henry offered his famous resolutions in 1765, but these were opposed by Mr. Wythe, as well as by Peyton Randolph, Edmund Pendleton, Richard Bland, and other Virginia worthies who had long been the habitual leaders of the House. So far as Mr. Wythe was concerned, his opposition did not proceed from any real difference of principle with Mr. Henry, but further action was deemed by him premature until answers to the memorials forwarded to England had been received.

Wythe served as a representative from Eliza-
<hr />
<div style="font-size: 85%;"><sup>6</sup> Reverend Andrew Burnaby, who visited Virginia in 1759, declared that this doctrine was, at the time of his visit, very widely held in Virginia.</div>
<div style="font-size: 85%;"><sup>7</sup> Wirt, Patrick Henry, appendix.</div></blockquote>

===Page 60===
<blockquote>beth City County till 1768, when he was elected clerk of the House of Burgesses, and removed to Williamsburg. As clerk he coöperated in all the acts of the General Assembly in opposition to the new duties on glass, lead, tea, etc., and the following incident may be given in proof: Lord Botetcourt arrived as governor in November, 1768, and an assembly was called to meet in Williamsburg, May 11, 1769, at which time the House of Burgesses, being regularly organized, entered promptly upon the consideration of American grievances. While they were engaged in the work in secret session, Botetcourt, becoming suspicious of their proceedings, sent a request to Wythe for a copy of the House Journal, but Wythe contrived to put him off till the next day. On that day, when the Governor at length took alarm and summoned the members of the House of Burgesses to the Council chamber and dissolved them, his action came too late, for the delay which Wythe had brought about had enabled the House to complete its work, which consisted in a strong and elaborate remonstrance against the course of the British Government.

Six years longer Mr. Wythe continued clerk of the House of Burgesses and though he had no vote his opinions had much weight, and his influence was potent in shaping affairs.

In March, 1775, he was a member of the convention of delegates which met at Richmond to provide measures for the safety of the colony, and while op-</blockquote>

===Page 61===
<blockquote>posing Patrick Henry's resolutions for organizing the militia in the different counties, he spoke in favor of Robert Carter Nicholas's proposition for raising a regular army of 10,000 men. Patrick Henry made a great speech on the occasion, and his clarion voice in favor of "Liberty or Death" has thrown discredit upon the votes of his antagonists, but it is proper to say that short enlistments were the bane of the Revolution, and Wythe saw at the outset the difficulties ahead, and lent cordial support to the sagacious scheme of Nicholas in making provision for a body of regular troops to serve during the war. Henry gave a remarkable proof of his estimate of Mr. Wythe's abilities, when he said: "Shall I light up my feeble taper before the brightness of his noontide sun? It were to compare the dull dewdrop of the morning with the intrinsic beauties of the diamond."

After the passage of Henry's measure, Wythe displayed his patriotism by joining a militia company in Williamsburg, wore a hunting shirt, carried a musket, and walked in the military parades which took place in the city during the latter part of Lord Dunmore's government.

In August, 1775, Mr. Wythe was appointed by the convention of Virginia to fill a vacancy in the Continental Congress, and in that body he strongly advocated in June of the next year, the resolutions for independence proposed by Richard Henry Lee pursuant to instructions from the convention of Vir-</blockquote>

===Page 62===
<blockquote>ginia, adopted June 12, 1776, and he demonstrated the fervor of his patriotism not long after by attaching his signature to the Declaration of Independence drawn by Jefferson.

Mr. Wythe was elected by the city of Williamsburg to the December convention of 1775, but at the time he was absent from the city in attendance upon Congress, and Joseph Prentiss, afterwards judge of the General Court, took his place. He was again elected to the celebrated convention which met at Williamsburg in June, 1776, but Edmund Randolph was his alternate, and Wythe himself was not present until the close of the session, when as one of a committee of four he joined in preparing for the use of the new commonwealth, a seal which has justly been esteemed for its romantic and classical beauty. George Mason reported it to the convention, but in Girardin's continuation of Burk's "History of Virginia" it is said that Wythe was the originator; and as Girardin wrote under the supervision of Jefferson, who was keenly alive to all such matters, there can be no reason to doubt the truth of his statement. Moreover, Wythe was one of the two entrusted with the execution of the seal, and must have penned the words describing it, which have been admired for their clearness and precision: "Virtue, the genius of the commonwealth, dressed like an Amazon, resting on a spear with one hand, and holding a sword in the other, and treading on Tyranny, represented by a man prostrate, a crown</blockquote>

===Page 63===
<blockquote>fallen from his head, a broken chain in his left hand, and a scourge in his right. In the exergue the word VIRGINIA over the head of Virtue, and underneath, the words ''Sic Semper Tyrannis''. On the reverse a group: LIBERTAS, with her wand and ''pileus''; on one side of her, CERES, with the cornucopia in one hand and an ear of wheat in the other; on the other side, AETERNITAS, with the globe and phœnix. In the exergue, these words: ''Deus Nobis Haec Otia Fecit'' (substituted later by the word ''Perseverando''). Severe in his republicanism, Wythe, like the other Virginians of the Revolution, had a scorn for "the aristocrat," and found his ideals in the Roman and Grecian Republics. Casar, Brutus, and Cicero were his names to conjure with, and his faith in the ability of man for self-government was stamped upon all his official action. While Massachusetts, Connecticut, Rhode Island, New Hampshire, along with New York, Pennsylvania, New Jersey, and Maryland, and even the United States government, clung to the old ideas of English heraldry and fashioned their seals of state on the principle of a coat of arms, Virginia, under the direction of Wythe, chose a purely classic design. She alone of the thirteen original states has no shield on which to emblazon in dazzling colors and lustrous metal the memory of feudal services, of the rich man's power and the poor man's thraldom; but the genius of her seal was made by Wythe, the Roman figure of Virtue, clad as an Amazon,</blockquote>

===Page 64===
<blockquote>holding in one hand the spear of victory and in the other the sword of authority, and sternly republican in her motto of ''Sic Semper Tyrannis''.

Mr. Wythe was after this a member of the House of Delegates, of Virginia, and on November 5, 1776, he was appointed one of a committee to revise the laws of the new state, and on December 4, 1776, Mann Page, Jr., was elected to succeed him in Congress. In May of the next year, being still a member of the House of Delegates, he defeated Robert Carter Nicholas for speaker by a vote of 37 to 33, a high tribute to his popularity and character as a man, for there were few men in the commonwealth as highly respected, for uprightness, for ability or for integrity of purpose, as his virtuous opponent. His service in the Legislature, however, was not long, as on January 14, 1778, he qualified as one of the first chancellors of the state. Ten years later, while still holding that office, he was elected a member of the Federal convention, which met in 1787 in Philadelphia. But though he appeared in the Convention, and took part in the organization, it does not seem that he remained very long, his duties as chancellor doubtless requiring his presence in Richmond. In 1788 he was elected to represent the city of Williamsburg in the State convention, called to consider the new Federal constitution proposed the previous year by the Federal convention of Philadelphia. There were one hundred and sixtyeight members. Mr. Wythe was elected chairman</blockquote>

===Page 65===
<blockquote>of the committee of the whole, in which most of the business of the convention was transacted.

During the greater part of the session he mingled very little in the debates, but when the time came for the important work of approving or rejecting the proposed Federal constitution, he left the chair, and offered a resolution of ratification, which he defended in a speech that made great impression upon the members. In this speech he admitted the imperfections of the Constitution and the propriety of some amendments, but he claimed that the excellency of its many parts could not be denied even by its warmest opponents. He thought that experience was the best guide, and that the future could alone develop the consequences, as most of the improvements that had been made in the science of government and other sciences were the results of experience. The resolution of ratification proposed by Wythe contained the proviso that "the powers granted under the Constitution being derived from the people of the United States, might be resumed by them whensoever the same should be perverted to their injury or oppression, and, therefore, that no right of any denomination could be cancelled, abridged, restrained or modified by the Congress, by the Senate or the House of Representatives acting in any capacity, by the president, or any department, or any officer of the United States, except in those instances in which the power was given by the constitutiort for those purposes." In this form Wythe's</blockquote>

===Page 66===
<blockquote>ratification was adopted, and a series of amendments drawn by Patrick Henry was recommended to Congress, several of which afterwards were approved by the states and made a part of the Constitution. After the organization of the new Federal government, Mr. Wythe allied himself, in the divisions that arose upon the construction of the Constitution with the Republican party, of which his pupil, Mr. Jefferson, was the head; and we hear of him at a later date as presiding over two of the electoral colleges, which met in Virginia to give their votes for president and vice-president of the United States.

In his character as teacher, Mr. Wythe attained to quite as high a reputation among the people of Virginia, as in the character of statesman. He was a close and indefatigable student of science and the ancient languages, as well as of the law, and he loved to discuss questions of natural philosophy with Governor Fauquier, who was himself a fellow of the Royal Society of Great Britain, and a man of real industry and great learning. Now, it chanced that from 1758 to 1764 the chair of mathematics and natural philosophy, at the college of William and Mary was filled by Dr. William Small, a man of elegant manners, of general culture, and of a peculiarly liberal and comprehensive mind. He was the intimate friend of Watt, the inventor of the steam engine, and of Erasmus Darwin, an eminent English scientist, and grandfather of the Darwin who in our day startled the world with his theory of evolution.</blockquote>

===Page 67===
<blockquote>Dr. Small left a lasting impression upon the college by introducing the lecture system, and popularizing the study of natural science, for which department in the College he went especially to England and purchased an extensive apparatus. He was a congenial and constant companion of Wythe's, and they became successively the instructors of the youthful Jefferson, who entered college in 176o, and after remaining two years under Small, studied law for five years under Wythe. It is a striking picture which the facts present of these three great men —Small, Wythe, and Jefferson—engaged at the familiar table of Governor Fauquier in erudite conversation on the laws of nature and the rights of man afterwards exemplified in the principles of the American Revolution. Indeed, there is something curious in a young law student like Thomas Jefferson choosing Mr. Wythe as his instructor, when Peyton and John Randolph, sons of his great-uncle, Sir John Randolph, were also living in Williamsburg, and were eminent lawyers and his attached friends. This circumstance, while partially explained by Mr. Wythe's reputation for learning, was doubtless chiefly attributable to the talent for teaching, which was early displayed by him, and which after some years led to his election, by the board of visitors of William and Mary College, to fill the new chair of law and police established in the institution by Mr. Jefferson at the reorganization of the college curriculum in 1779. In this professorship Mr.</blockquote>

===Page 68===
<blockquote>Wythe remained for twelve years, and he has the honor of having been the first university law professor in the United States, and the second in the English-speaking world-Sir William Blackstone, who filled the Vinerian chair of law at Oxford in 1758, being the first.

Most of the students at William and Mary College during Wythe's incumbency fell under his instructions, and we are told that his class, in 178o, numbered about forty young men; and although owing to the loss of records, not all their names are preserved, the presence among them of John Marshall, the celebrated chief-justice, and of James Monroe, who is world-known because of the governmental doctrine which bears his name, is a reasonably good indication of their intellectual superiority. One form of Wythe's instructions was the lecture system, borrowed from his friend, Dr. Small, and his subject matter was municipal and constitutional law, in the treatment of which he was far from being a servile copyist of Blackstone. Indeed, the new system of written constitutions adopted in America opened a field of thought to which Blackstone was a stranger, and Wythe has the honor of being the first regular commentator upon the changes brought about by the new instruments of government in American jurisprudence.<sup>8</sup> But
<hr />
<div style="font-size: 85%;"><sup>8</sup> Mr. Wythe's manuscript lectures were extant in iSio, when they are noticed in a letter from Judge John Tyler (father of President Tyler) to Mr. Jefferson. Judge Tyler writes in regard to them: "They are highly worthy of publication, and it is a pity that they should</div></blockquote>

===Page 69===
<blockquote>besides the lecture system, there were two other modes of instruction relied upon by Mr. Wythe, which were original with him. As the seat of government, in 1779, was removed to Richmond, the old historic capitol building at the east end of Williamsburg was left untenanted, and Wythe availed himself of this deserted structure to institute a moot court and a moot legislature in the room formerly occupied by. the General Court of the colony.

The moot court was held once or oftener every month, and Mr. Wythe and the other professors of the College sat as judges; and before an audience consisting of the most respectable of the citizens of Williamsburg, causes suggested by him were pleaded by the students "in a very lawyer-like manner," it is said. The moot legislature met every Saturday, and Mr. Wythe, forming the young men into a house of delegates, acted as speaker and took all possible pains to instruct them in rules of debate and parliamentary procedure. He was at this time engaged in revising the laws of the state, and the bills drawn up for the legislature were put in the hands of the students, and by them were very freely debated and amended. These exercises were useful, not only by reason of the instruction afforded, but because they served as a very popular relaxation after the study of text-books and attendance in the classroom.
<hr />
<div style="font-size: 85%;">be lost to society and such a monument of his memory be neglected." Letters and Times of the Tylers, vol. I, 249.</div></blockquote>

===Page 70===
<blockquote>Mr. Wythe was a warm opponent of negro slavery, and his teachings no doubt had much to do with producing that spirit of philanthropy which prevailed in Virginia till a reaction was caused, in 1833, by the violent assaults of the abolitionists. A letter, in 1785, by Mr. Jefferson to Dr. Price has a reference to the College and Mr. Wythe in connection with slavery, which is interesting: "The College of William and Mary in Williamsburg since the remodelling of its plan is the place where are collected together all the young men of Virginia under preparation for public life. They are there under the direction (most of them) of a Mr. Wythe, one of the most virtuous of characters, and whose sentiments on the subject of slavery are unequivocable. I am satisfied, if you could resolve to address an exhortation to these young men, with all that eloquence of which you are master, that its influence on the future decision of this important question would be great, perhaps decisive."

In addition to his lectures on law and police, Wythe, in 1787, opened a class in Williamsburg for the study of the higher Latin and Greek classics and the most approved English prose and poetical writers.<sup>9</sup> He asked no compensation of those who availed themselves of this opportunity, but the self-imposed labor was one of the many instances of his active philanthropy.

Mr. Wythe continued to lecture at William and
<hr />
<div style="font-size: 85%;"><sup>9</sup> Virginia Gazette, July 1787.</div></blockquote>

===Page 71===
<blockquote>Mary till 1791,<sup>10</sup> when, having been appointed sole chancellor of Virginia, he resigned his chair and removed to Richmond. At his departure the faculty testified to their appreciation of his character and ability by conferring upon him the degree of Doctor of Laws.

He nevertheless continued his roll of instructor till his death, fifteen years later; for, harassed as he was with business, he yet, for many years, in Richmond, found time to keep a private school for the instruction of a few young men. Among the last to fall under his influence was Henry Clay, who, in 1793, at the age of sixteen, became a clerk in the office of the court over which Wythe presided. In his sketch of Mr. Wythe, Mr. Clay concludes with an acknowledgment that "to no man was he more indebted, by his instructions, his advice and his example, for the intellectual improvement which he made up to the period when in his twenty-first year he finally left the city of Richmond for Kentucky." Indeed, no more suggestive or interesting painting could be had than one representing George Wythe as a teacher surrounded by those who received the benefit of his training and instruction. Some of the greatest luminaries at the bar and in politics, which the Union has produced, were instructed in law and science and led up the "Steep of fame" by George Wythe. In the list of his pupils we may enumerate two presidents of the United States, Thomas Jeffer-
<hr />
<div style="font-size: 85%;"><sup>10</sup> William and Mary College Quarterly, vol. VIII, 155.<ref>"Glimpses of Old College Life," ''William and Mary College Quarterly Historical Magazine'' 8, no 3. (January 1900), 153-160.</ref></div></blockquote>

===Page 72===
<blockquote>son and James Monroe; the greatest of America's judges, [[John Marshall]]; and a number of other prominent lights, only one degree inferior in brightness to Marshall himself—St. George Tucker; Spencer Roane; Archibald Stuart; John Wickham; John Brown, of Kentucky; James Breckenridge; John Coalter; Littleton Waller Tazewell; Buckner Thurston; [[William Munford]]; James Innis; George Nicholas; and Henry Clay.

We have spoken of Mr. Wythe's acquaintance with the ancient languages, which was very profound; but he was also proficient in Spanish and Italian, and doubtless derived great benefit in this particular by his association, while professor of law, with Charles Bellini, who held the chair of modern languages at William and Mary College like Mr. Wythe's chair, the first of its kind in the United States. William Munford, who was a pupil of his in Williamsburg, relates that he received from Mr. Wythe, after he removed to Richmond, many kind notes which were interspersed with Greek and Latin sentences, showing the evident pleasure he took in the study of those languages. While resident in Richmond, Mr. Wythe took up the study of Hebrew, pursuing it closely with grammar and dictionary, and once a week a Jewish Rabbi by the name of Seixas attended him to see how he progressed and to give him advice.

The character of Mr. Wythe, as a representative of the legal profession, comes last to be considered.</blockquote>

===Page 73===
<blockquote>After he had once conceived the idea of devoting himself to the mastery of the law, he applied himself with unwearied diligence to the thorough study of all the great English and Latin law writers. He read deeply and pondered upon what he read, and to his almost universal knowledge upon the subject he united an appreciation of the dignity of his profession which never permitted him to champion an unjust cause. It was his habit, in case he entertained any doubts of the truth of his client's statements, to require of him an oath; and if in any stage of the case he found that deception had been practiced upon him, the fee was returned and the case abandoned. His experience as a practitioner of law extended from 1746 to 1777; and from the County Court he passed, in due time, to the General Court, where his industry was quickened, and his emulation excited by a competition with men who had studied at the English Inns of Court.

Among his rivals at the bar, the most formidable was Edmund Pendleton, who resembled Lord Mansfield in the character of his intellect, and who from his twelfth year had never lost a day from the eager pursuit of his profession. He had the advantage of Wythe in personal appearance which was singularly handsome, in his voice which was clear and silver-toned, and in his manners which were charming and fascinating. But as actors on the stage, while Pendleton was cautious and conservative, Wythe was bold and aggressive. Then,</blockquote>

===Page 74===
<blockquote>Pendleton was far from possessing the information of Wythe, and he was rather a great advocate than a deep lawyer. Nevertheless, in debate, while Wythe was more solidly argumentative, Pendleton was more subtle and captivating; and in their frequent contests at the bar the advantage, in the popular judgment, lay as a rule with Pendleton. Wythe generally bore these apparent defeats with reserve and equanimity, but he lacked neither quickness of parts nor colloquial talents; and sometimes, when aroused by some improper remark, he would swiftly retort with terrible severity. A story is told of a remark made by him to Lord Dunmore, which illustrates his wit and talent for biting sarcasm. One day in the General Court, where Lord Dunmore presided as chief justice, Wythe and Robert Carter Nicholas appeared for one side of the cause, and Mr. Pendleton for the other. The case being called, Mr. Wythe expressed himself in favor of an immediate trial, but Pendleton desired a continuance, as Mr. Mason, his colleague, was absent and there were two counsel on the other side. Lord Dunmore did not like Wythe, and, forgetting the dignity of his position, had the indelicacy to say: "Go on, Mr. Pendleton, for you will be a match for both of them." "With your Lordship's assistance," retorted Wythe, bowing with mock politeness. Dunmore showed by his change of countenance that he felt the sting which his imprudence had provoked, but he said nothing, and the</blockquote>

===Page 75===
<blockquote>audience was delighted with Wythe's intrepidity. As a member of the committee to revise the laws of the new commonwealth of Virginia, Mr. Wythe's work was highly important. The members met at Fredericksburg, January 13, 1777, and distributed the work. The common law and English statutes to 4 James I. when the colony was established at Jamestown, were assigned to Jefferson; the British statutes, from that period to the time of the revisal, to Mr. Wythe; and the Virginia laws to Mr. Pendleton. They were employed in this work from that time to February, 1779, when the three great lawyers met at Williamsburg and day by day examined critically their respective labors, scrutinizing and amending until they had agreed on the whole. The work, when completed, consisted of one hundred and twenty-six bills, making a printed folio of ninety pages only. All the ancient laws, found inapplicable to the powers of government as then organized, or founded on principles foreign to republican spirit, and all others which long before such change had been found oppressive to the people, but could not be repealed while the regal power continued, were omitted; and the statutes recommended were relieved of their verbosity and endless tautology. The bills prepared by the revisers were reported to the Assembly on June i8, 1779, and published by its order. Some of these bills were occasionally adopted before 1785; but it was not until that year that the report of the revisers was taken</blockquote>

===Page 76===
<blockquote>up in a regular manner, when most of them, under the management of James Madison, passed into law.

In the meantime, an act was passed in October, 1777, to create for the state a court of chancery, which, as first composed, consisted of Pendleton, Wythe, and Robert Carter Nicholas; and in 1783 the members of this court were instructed by the Legislature to cause all the acts of assembly, subsequent to 1779, and the ordinances of the convention in force, to be collected into one code with proper index and marginal notes. The then chancellors, Edmund Pendleton, George Wythe, and John Blair made a communication on the subject in November, 1783, and in 1785 their edition was printed at Richmond by Thomas Nicholson and William Prentiss. Though generally called the Chancellors' Revisal, it was rather a collection of the laws than a revisal of them.

By virtue of his office as one of the three chancellors of the state, Mr. Wythe was also a member of the Supreme Court of Appeals, and in 1782 there came before this court an interesting case entitled in the reports Commonwealth against Caton, involving the question of the overruling power of the judiciary. It appears that three men were tried by the General Court and condemned to death, but to escape execution they made application to the pardoning power, which, pursuant to the Constitution, was vested by an act of the Legislature in the two Houses of the General Assembly; and the House of Dele-</blockquote>

===Page 77===
<blockquote>gates, making only one branch of the General Assembly, assumed to pass a resolution of pardon, which was pleaded at the bar by the prisoners. The Attorney-General denied the validity of the plea, and the General Court adjourned the case "for novelty and difficulty" to the Court of Appeals. Here Pendleton, the president of the court, did not choose to regard the act of the House of Delegates as indicative of an intention to assert power, since, by sending their resolution to the Senate, they appeared to have suspended its operation until the consent of the Senate could be obtained. He therefore decreed that really no action had been taken by either branch, and overruled the plea of pardon, simply referring to the question of the controlling authority of the judiciary as a "tremendous question," which he trusted the prudence of the legislature, by making the principles of the Constitution the great rule to direct the spirit of their laws, would forever render unnecessary to decide. But his colleague, Wythe, always bolder in action and greater in spirit, met the issue without reserve; and with a burst of eloquence, which even now is calculated to stir the blood and quicken the heart, spoke from the bench as follows:</blockquote>

<blockquote><div style="font-size: 85%;">Among all the advantages, which have arisen to mankind, from the study of letters, and the universal diffusion of knowledge, there is none of more importance, than the tendency they have had to produce discussions upon the respective rights of the sovereign and the subject; and upon the powers which the different branches of government may exercise. For, by this means, tyranny</div></blockquote>

===Page 78===
<blockquote><div style="font-size: 85%;">has been sapped, the departments kept within their own spheres, the citizens protected, and general liberty promoted. But this beneficial result attains to higher perfection, when, those who hold the purse and the sword differing as to the powers which each may exercise, the tribunals who hold neither are called upon to declare the law impartially between them. For thus the pretensions of each party are fairly examined, their respective powers ascertained, and the boundaries of authority peaceably established. Under these impressions I approach the question which has been submitted to us; and, although it was said the other day by one of the judges, that, imitating that great and good man, Lord Hale, he would sooner quit the bench than determine it, I feel no alarm; but will meet the crisis as I ought; and, in the language of my oath of office, will decide it, according to the best of my skill and judgment.

I have heard of an English chancellor who said, and it was nobly said, that it was his duty to protect the rights of the subject against the encroachments of the crown; and that he would do it, at every hazard. But if it was his duty to protect a solitary individual against the rapacity of the sovereign, surely it is equally mine to protect one branch of the legislature and, consequently, the whole community, against the usurpations of the other; and, whenever the proper occasion occurs, I shall feel the duty and fearlessly perform it. Whenever traitors shall be fairly convicted, by the verdict of their peers before the competent tribunal; if one branch of the legislature, without the concurrence of the other, shall attempt to rescue the offenders from the sentence of the law, I shall not hesitate, sitting in this place, to say to the general court, ''Fiat justitia, ruat cœlum''; and, to the usurping branch of the legislature, " you attempt worse than a vain thing; for, although, you cannot succeed, you set an example which may convulse society to its centre." Nay more, if the whole legislature, an event to be deprecated, should attempt to overleap the bounds prescribed to them by the people, I, in administering the public justice of the country, will meet the united powers at my</div></blockquote>

===Page 79===
<blockquote><div style="font-size: 85%;">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."</div>

The principle thus eloquently affirmed by George Wythe, for the first time in the history of the world, and now universally accepted, has been pronounced by Lord Brougham "the greatest refinement to which any state of circumstances has ever given rise or to which any age has ever given birth."

In 1788 the number of judges in the Court of Chancery was reduced to one, and the court was required to meet four times in every year at the capitol in Richmond. Thus Wythe became sole chancellor of Virginia, and his jurisdiction extended over the whole state till i8oi, when the state was divided into three chancery districts, and he was assigned to what is known as the Richmond District. The seal of the High Court of Chancery was prepared by Wythe, who consulted the celebrated painter, Benjamin West, of Pennsylvania; and the devices adopted are a perpetual memento of the stern and virtuous impartiality that characterized the office. Wythe took the legend of Sisamnes, which, as told by Herodotus, asserts that for accepting a bribe King Cambyses had Sisamnes killed and flayed, and his skin cut in straps and stretched about the judicial seat. He then appointed, as judge, Sisamnes' son, Otannes, and told him to remember the seat upon which he sat to administer justice.

In another case, Judge Wythe showed the strength</blockquote>

===Page 80===
:''Main article: [[Henry Clay to B. B. Minor, 3 May 1851]]''

<blockquote>and independence of character which so eminently distinguished him. The recovery of debt due by American citizens to British subjects was made the subject of the sixth article of the Treaty of Commerce negotiated by John Jay, in 1794, with Great Britain. Now, the enforcement of this article was very unpopular in Virginia, since, instead of performing their engagements under the treaty of peace the British had not withdrawn their troops from the western posts, nor taken any steps to pay for the slaves abstracted during the war. Chancellor Wythe was the first judge to decide that the claims were recoverable, and his decision was given in a case in which the complainant was an alien and late enemy, and the respondent was the state of Virginia. This decision rendered him unpopular in Virginia for a time, but it was not long before the condemnation was forgotten in admiration for the man's independent and disinterested conduct. Thus Mr. Wythe continued in the office of chancellor for many years, and 'his course was deeply impressed with the most scrupulous impartiality, rigid justice, unremitting assiduity, and the purest unselfishness.

Mr. Clay tells the following stories of Mr. Wythe:

<div style="font-size: 85%;">A neighbor of his, Mr. H———, who had the reputation of being a West India nabob, and who at the time had an important suit pending in the Court of Chancery, sent him a demijohn of old arrack and an orange tree for his niece, Miss Nelson, then residing with him. When the articles were brought into Mr. Wythe's house, with the message from the donor, Mr. Wythe requested the servant to take them back to his master and to</div></blockquote>

===Page 81===
<blockquote><div style="font-size: 85%;">present to him his respects and thanks for his kind intentions, but to say that he had long ceased to make any use of arrack, and that Miss Nelson had no conservatory in which she could protect the orange tree. I was amused at another scene, which I witnessed, between him and the late Justice (Bushrod) Washington of the Supreme Court, then practising law in the city of Richmond. He called on the Chancellor with a bill of injunction in behalf of General ———, to restrain the collection of a debt. The ground of the application was that the creditor had agreed to await the convenience of General ———, for the payment of the debt, and that it was not then convenient to pay it. The Chancellor attentively read the bill through, and deliberately folding it up, returned it to Mr. Washington, enquiring with an ineffable smile upon his countenance, "Do you think, sir, that I ought to grant this injunction?" Mr. Washington blushed and observed that he had presented the bill at the earnest instance of his client.</div>

So great was the love and admiration entertained in Virginia for Mr. Wythe that Virginians, who were fond of finding ideals in classic literature and never tired of appealing to the example of Roman and Grecian heroes, were in the habit of comparing Wythe to Aristides, and delighted to think that the appellation of "The Just" could not be more appropriately applied than to one of their own countrymen.

Mr. Wythe was generally sustained in his opinions by the Supreme Court, but, of course, he was sometimes reversed, and in 1795 he published a book entitled "Decisions of Cases in Virginia by the High Court of Chancery, with remarks upon decrees by the Court of Appeals reversing some of those deci-</blockquote>

===Page 82===
<blockquote>sions." Perhaps the chief object of Mr. Wythe was to make a contribution to the legal literature of the country, but there can be no doubt that he also desired to vindicate his decisions from the opposite opinions of the Appellate Court. In more than one of his "comments" there is just a suspicion of personal feeling, for it is said that, owing to their frequent collisions before the public, his relations with Mr. Pendleton, president of the Court of Appeals, were somewhat constrained. Mr. Wythe's Reports show great learning, and familiarity with Greek and Latin authors, which are frequently quoted, but his English is very often involved and complicated-a fact which may be partially due to his having to depend upon a young amanuensis to take down his words, rheumatism or gout having deprived him of the use of his right hand. Before this misfortune befell him, Mr. Wythe showed in the character of his handwriting the spirit of simplicity which distinguished his every day conduct. He wrote in two handwritings—one resembling print, and the other a running hand; and it was his practice to use the small "i" for the first person, and never to begin the sentence with a capital other than when it began a paragraph. Mr. Jefferson, his pupil, who wrote with greater correctness, adopted also the same rules of chirography, though he did use the capital "''I''."

About 1755, Wythe, who, as stated, had lost his first wife in 1747, married [[Elizabeth Taliaferro]], daughter of Richard Taliaferro, of James City</blockquote>

===Page 83===
<blockquote>County. His residence in Williamsburg, which was the gift of his father-in-law, is still standing, and is situated near the old Episcopal church facing the Palace Green.<sup>11</sup> It is a large brick building, and, when the American army in pursuit of Lord Cornwallis encamped in the neighborhood, this old house was selected for the headquarters of the Commander- in-chief, and is cherished and venerated for its two-fold associations with the names of Wythe and Washington. When Wythe removed to Richmond, in 1791, he resided in a yellow wooden house with a hip roof, situated on the corner of Fifth and Grace streets, and the garden attached to it extended to Franklin street and embraced half the square. For several years after Wythe's decease the lot was cultivated as a market garden, and the house, after lying untenanted many years, was taken possession of by some youths of the city, who knocked down the partition, and used it as a play house, where amateur theatricals were had. The garden and ruins of the house have now made way for some of Richmond's handsomest residences. The only child Mr. Wythe ever had died in infancy and he outlived his second wife several years.

Mr. Wythe's instincts, like those of his pupil, Mr. Jefferson, were all in favor of personal liberty, and he showed the faith that was in him by his admonitions, as already noticed, to the young men under his care, and by the enfranchisement in his will of three of
<hr />
<div style="font-size: 85%;"><sup>11</sup> William and Mary College Quarterly, vol. XII, 124.<ref>"Will of Richard Taliaferro," ''William and Mary College Quarterly Historical Magazine'' 12, no. 2 (October 1903), 124-125.</ref></div></blockquote>

===Page 84===
<blockquote>his own slaves, to whom he gave sufficient to free them from want. One of these, a negro boy, he had instructed in the Latin and Greek languages, and the clause in the will for his support was coupled with the provision that if the negro boy should die before his full age, the bequest for him should enure for the benefit of George Wythe Sweeney, one of his great-nephews. This clause is believed to have been the innocent cause of Judge Wythe's decease. Avarice overpowered the favorite nephew, and to get immediate possession of the devise, he put arsenic in a pot of coffee which he supposed the negro boy would be the only one to use. But it happened that Judge Wythe also drank of the coffee, and both were fatally affected. The negro boy died first, and the dying Chancellor made haste to revoke all the devises to his wicked nephew, and by a codicil left the estate to the other grandchildren of his sister, to be equally divided among them.

The inspiration of duty was with him to the last, for though tortured on the bed of sickness for over a week by the agonies produced by the poison, his thought kept reverting to the cases pending in court, and he expressed much regret over the delay and consequent expense which his death would impose upon the parties to suits. He died in the midst of this benevolent anxiety, June 8, 1806, in the eighty-first year of his age, and among the last words he uttered were: "Let me die righteous!"

George Wythe Sweeney was arrested, and in Sep-</blockquote>

===Page 85===
<blockquote>tember, 1806, was tried at the bar of the General Court for the murder of his uncle and the negro boy, but for lack of legal testimony he was acquitted by the jury, a result which did not, however, shake the confidence of the people at large in the guilt of the accused. He was not released at once; for, as four other indictments had been found against him for a misdemeanor in obtaining money the preceding April from the Bank of Virginia upon a false check in the name of Wythe, he was tried for this matter, convicted and condemned to six months in jail and one hour's exposure in the pillory in the market house in the city of Richmond. But this sentence was never executed, as, upon a motion for an arrest of judgment, the court suspended the punishment, and the prosecuting attorney entered a ''nolle prosequi''. The unfortunate man then sought refuge of the west, where he died prematurely and miserably.

Mr. Wythe's death created a profound impression in Virginia; he was given a public funeral in which the state and municipal authorities in all departments joined, and he was buried in the cemetery of old St. John's Church, Richmond, where Patrick Henry made his great speech in 1775 in favor of arming the militia of the colony. William Munford, Wythe's friend and pupil, delivered the [[Oration, Pronounced at the Funeral of George Wythe|funeral oration]], and bore testimony to the quiet Christian virtues of which he was possessed. The current publications express the public sentiment. The</blockquote>

===Page 86===
:''Main articles: [[Richmond Enquirer, 10 June 1806]]; [[Chancellor Wythe's Death]]''

<blockquote>Richmond Enquirer [[Richmond Enquirer, 10 June 1806|commented upon the funeral ceremonies]] as follows:</blockquote>

<blockquote><div style="font-size: 85%;">Need it be said that the crowd which assembled in the capitol was uncommonly numerous and respectable? After the delivery of a funeral oration by Mr. William Munford, a member of the Executive Council, the procession set out towards the church. It is no disparagement to the virtues of the living to assert that there is not perhaps another man in Virginia whom the same solemn procession would have attended to the grave. Let the solemn and lengthened procession which attended him to the grave declare the loss which we have sustained!</div>

Thus ended the career of George Wythe, and this sketch may be concluded with some few further testimonials to his worth.

George Wythe Munford, son of William Munford, above named, thus recorded what he had learned from his father, and from others who knew Mr. Wythe:

<div style="font-size: 85%;">As a chancellor, in his court-room, in the basement of the Capitol, which was rarely occupied by more than a few members of the bar and a few suitors, without insignia of office and only his innate dignity to support him, men might transact their business without reflecting upon the inestimable value of a judge uncontaminated by prejudice or partiality, or meaner selfishness, upon whose pure decision their property depended. They knew he held the even scales of justice well balanced in his hands, and that nothing but undoubted equity and law could turn those scales to the right or left; still, no outward demonstration of more than ordinary respect was ever exhibited. In these days, when it is not uncommon to hear notable contrasts drawn between some unworthy judges who have soiled the judicial ermine and</div></blockquote>

===Page 87===
<blockquote><div style="font-size: 85%;">brought their decisions and illegal acts into disrepute and themselves into contempt, it may not be considered useless to review some incidents in the life and character of such a man as George Wythe, and hold him up as an exemplar of a patriot, jurist, and pure Virginian. It is a pleasure to us to dwell for a moment upon the personal appearance of this remarkable man.

He was one of those that a child could approach without hesitating or shrinking,— would talk to, in its innocent prattle, without constraint of fear,— would lean upon, and, looking in his face, return a sympathetic smile. He was one of those before whom a surly dog would unbend, and wag his tail with manifest pleasure, though never seen before. Animals and children are guided in their affections or dislikes by the countenance and the manner.

His stature was of the middle size. He was well-formed and proportioned, and the features of his face manly, and engaging. In his walk, he carried his hands behind him, holding the one in the other, which added to his thoughtful appearance. In his latter days he was very bald. The hair that remained was uncut, and worn behind, curled up in a continuous roll. His head was very round, with a high forehead; well-arched eyebrows; prominent blue eyes, showing softness and intelligence combined; a large aquiline nose; rather small, but well-defined mouth; and thin whiskers, not lower than his ears. There were sharp indentations from the side of the nose down on his cheek, terminating about an inch from the corner of his mouth; and his chin was well-rounded and distinct. His face was kept smoothly shaven; his cheeks, considerably furrowed from the loss of teeth; and the crow's feet very perceptible in the corners of the eyes. His countenance was exceedingly benevolent and cheerful.

His dress was a single-breasted black broadcloth coat, with a stiff collar turned over slightly at the top, cut in front Quaker fashion; a long vest, with large pocket-flaps and straight collar, buttoned high on the breast, showing the ends of the white cravat that filled up the bosom. He wore shorts; silver knee</div></blockquote>

===Page 88===
:''Main article: [[Henry Clay to B. B. Minor, 3 May 1851]]

<blockquote><div style="font-size: 85%;">and shoe buckles; was particularly neat in his appearance, and had a ruddy healthy hue. He had a regular habit of bathing, winter and summer, at sunrise. He would put on his morning wrapper, go down with his bucket to the well in the yard, which was sixty feet deep and the water very cold, and draw for himself what was necessary. He would then indulge in a potent shower-bath, which he considered the most inspiring luxury. With nerves all braced, he would pick up the morning Enquirer, established about two years before, and seating himself in his arm-chair, would ring a little silver bell for his frugal breakfast. This was brought immediately by his servant woman, Lydia Broadnax, who understood his wants and his ways. She was a servant of the olden time, respected and trusted by her master, and devoutly attached to him and his -one of those whom he had liberated, but who lived with him from affection.</div>

Nathaniel Beverley Tucker, son of St. George Tucker, Wythe's successor in the chair of law at the College of William and Mary, wrote thus of his early recollections of Wythe:

<div style="font-size: 85%;">I have still in my mind's eye a tall, pale, extenuated old man that I used to see walking silent and alone before the door, and whom we boys always beheld with a feeling akin to superstitious awe.</div>

Then, Henry Clay used these words:

<div style="font-size: 85%;">Mr. Wythe's personal appearance and his personal habits were plain, simple and unostentatious. His countenance was full of blandness and benevolence, and I think he made, in his salutations of others, the most graceful bow that I have ever witnessed. A little bent by age, he generally wore a grey coating. And when walking carried a cane. Even at this moment, after the lapse of more than half a century since I last saw him, his image is distinctly engraved on my mind."</div></blockquote>

===Page 89===

:''Main article: [[Notes for the Biography of George Wythe]]''

<blockquote>Finally, Thomas Jefferson's estimate of Wythe was as follows:</blockquote>

<blockquote><div style="font-size: 85%;">No man ever left behind him a character more venerated than George Wythe. 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, without the avarice of the Roman; for a more disinterested person never lived. Temperance and regularity in all his habits gave him general good health, and his unaffected modesty and suavity of manners, endeared him to every one. He was of easy elocution, his language chaste, methodical in the arrangement of his matter, learned and logical in the use of it, and of great urbanity in debate; not quick of apprehension, but, with a little time, profound in penetration, and sound in conclusion. In his philosophy he was firm, and neither troubling, nor perhaps trusting any one with his religious creed, he left the world to the conclusion, that that religion must be good which could produce a life of such exemplary virtue.

His stature was of the middle size, well formed and proportioned, and the features of his face were manly, comely, and engaging. Such was George Wythe, the honor of his own time and the model of future times.</div></blockquote>

<blockquote>The salient points in Wythe's career may be summed up as follows: As a statesman he was identified with the most advanced views as to the relations of the colonies with Great Britain, and both defended and signed the Declaration of Independence. He was the author of the beautiful state seal of Virginia and one of the chief causes of the adoption of the Federal Constitution by Virginia; as a</blockquote>

===Page 90===
<blockquote>teacher, he was the first law professor in the United States and set the example of moot courts and moot legislatures. And as a lawyer and judge, he was profound and absolutely just, had a great part in shaping the first laws of the infant commonwealth, was the first to lay down the great principle of the overruling power of the judiciary, and dared to afford the example, as he did in the British debt cases, of a judge utterly fearless of popular influence.<sup>12</sup>
<hr />
<div style="font-size: 85%;"><sup>12</sup> Authorities: Hening, Statutes at Large; Grigsby, Convention of 1766; Journal of the House of Burgesses; Sanderson, [[Biography of the Signers to the Declaration of Independence|Signers of the Declaration of Independence]]; Munford, [[Chancellor Wythe's Death|Two Parsons]], 1884; Wythe, [[Memoir of the Author|Chancery Cases, 2d ed.]], by B. B. Minor; Munford, [[Oration, Pronounced at the Funeral of George Wythe|Oration on Wythe's death]] in Richmond Enquirer, June 10, 1805 [''sic''];<ref>The correct date is June 10, 1806.</ref> 4 Call's Reports, 10; Henry Clay, [[Henry Clay to B. B. Minor, 3 May 1851|Sketch of George Wythe]], in Virginia Historical Register, vol. v, 162; Elizabeth City County Records; Hayden, Virginia Genealogies, p. 381; Virginia Cases, annotated, 1903; William and Mary College Quarterly Historical Magazine; Burk, History of Virginia; Wirt, Life of Patrick Henry.</div></blockquote>

==External links==

Read this book in [http://books.google.com/books?id=v_E_AAAAYAAJ&pg=PA51 Google Books].

==References==
<references/>

[[Category:Biographies (Articles)]]

Memoir of the Author

2015-02-20T13:58:27Z

Jamorris01: /* Page xv */

{{DISPLAYTITLE:"Memoir of the Author"}}
[[File:WytheDecisionsOfCasesInVirginia1852.jpg|thumb|350px|Title page from [[George Wythe|George Wythe's]] ''Decisions of Cases in Virginia By the High Court of Chancery'', edited by [[wikipedia:Benjamin Blake Minor|B.B. Minor]], Richmond: J.W. Randolph, 1852.]]
[[File:MinorMemoirOfTheAuthor1852.jpg|thumb|350px|First page of [[wikipedia:Benjamin Blake Minor|B.B. Minor's]] "[[Media:MinorMemoirOfTheAuthor1852.pdf|Memoir of the Author]]," from [[George Wythe|George Wythe's]] ''Decisions of Cases in Virginia By the High Court of Chancery'', Richmond: J.W. Randolph, 1852.]]
In editing the second edition of [[George Wythe|George Wythe's]] ''Decisions of Cases in Virginia'' (1852), [[wikipedia:Benjamin Blake Minor|Benjamin Blake Minor]] included a "Memoir of the Author,"<ref>B.B. Minor, [[Media:MinorMemoirOfTheAuthor1852.pdf|"Memoir of the Author,"]] in ''Decisions of Cases In Virginia, By the High Court Chancery, with Remarks Upon Decrees By the Court of Appeals, Reversing Some of Those Decisions,'' by George Wythe, ed. B.B. Minor (Richmond, Virginia: J.W. Randolph, 1852), xi-xxxx.</ref> writing in his preface that it "seemed highly appropriate to accompany the reports."<ref>Minor, preface to Wythe's Reports, ix.</ref> The chapter reprints portions of [[Last Will and Testament|Wythe's will]], as well as part of the newspaper article from the [[Richmond Enquirer, 10 June 1806|''Richmond Enquirer'' for June 10, 1806]] which announced his death and details of his funeral.

Minor writes that this memoir "is believed to contain the most that is now known of [Wythe's] history," but even this text, written just 46 years after [[Death of George Wythe|the Chancellor's death]], contains mistakes and inaccuracies. It perpetuates, for example, the myth that for ten years after the death of his mother (or his first wife, [[Ann Lewis]], depending on whose account is read), Wythe "gave himself up to a long career of pleasure and dissipation." Though this popular anecdote makes for exciting biography, it is demonstrably untrue,<ref>Leon M. Bazile, "Discourse Refuting Statements Made That George Wythe at One Time Led a Life of Dissipation," manuscript, [http://vhs4.vahistorical.org/starweb/vhs/servlet.starweb?path=vhs/vhs.web Virginia Historical Society Library], Mss7:1 W9974:1.</ref> and leads further to Minor reporting (though he notes on [[#Page_xiv|page xiv]], "this is by no means certain") that Wythe joined the bar at age thirty (in 1756) instead of twenty (in 1746), as is clearly recorded in court practice. Wythe's rise to eminence, therefore, was somewhat more paced than within the "short space of five years" Minor supposes.

==Chapter text==
===Page xi===
<center>'''MEMOIR OF THE AUTHOR.'''
<hr width="10%" /></center>

<blockquote>
Conspicuous personages, who, like Wythe, make the History of their Times, may properly stand forth from the canvass of History, in all their individuality,—their portraiture being only the bolder for being the less minute. Yet Biography differs from History essentially in this;—that in the former details may be given, and personal traits and features displayed, that would be lost in the generalizations of the latter.

The little, however, that has been recorded of the long and useful life of Mr. Wythe, partakes more of eulogy than biography. The following is believed to contain the most that is now known of his history.

George Wythe was born in the County of Elizabeth City, Virginia, in 1726. His mother was one of five daughters of [[George Keith|Mr. Keith]], a Quaker gentleman of good fortune and education, and author of a work on mathematical and other subjects, who migrated from Great Britain to the town of Hampton, in 1690: his father owned a good estate on Back River, and died intestate, survived by his wife and three children. The elder brother being the heir at law, it is said that his mother's moderate circumstances induced her to undertake George's education herself; an office which, though her natural and acquired qualifications well fitted her for it, was, as is usual in such cases, but imperfectly discharged. She, however, besides English, taught him the rudiments of Latin; and also aided him in those of Greek; for though she did not understand it herself, yet having learned the alphabet, she, by a close collation of the English version with the Greek Testament, assisted him in the translation. As she must have had sufficient means from her dower, and the aid of her elder son, to send George to school, it is probable that her parental anxiety, or the want of a conve-
</blockquote>

===Page xii===
<blockquote>
nient school, was the true cause that kept him at home; and though his literary advantages were thus limited, she no doubt implanted in his character the seeds of that strength and uprightness which are said to have marked her own.

With this limited scholastic education, he was sent to study law with his uncle-in-law, [[Stephen Dewey|Mr. Dewey]], a lawyer of distinction in the County of Prince George. Here not much pains was bestowed upon him; his time was chiefly devoted to what is termed the drudgery of a lawyer's office. He apparently made very little progress in his legal studies. Yet it might be very fallacious to infer that that drudgery had no connection with or influence upon his future success. The profession of law requires labors and sacrifices of its votaries; and some who have been, at the outset, drudges, have by the very patience, perseverance, accuracy and closeness of observation which so called drudgery necessarily engenders and inculcates, become its greatest luminaries.

But the labors and toils of the student may be lightened by the attention and judicious encouragement of the preceptor; and no doubt Mr. Wythe profited by his own experience under Mr. Dewey, when in after years he so zealously devoted himself to the guidance and instruction of candidates for the bar.

After his return home, in about two years, he gave himself assiduously to self-improvement; and without assistance made considerable progress not only in Law, but in Latin and Greek Literature, and in the liberal sciences.

His mother died before he attained his majority. Her death and that of his brother put him in possession of the means of self-indulgence, and he now gave himself up to a long career of pleasure and dissipation.<ref>Bazile, "Discourse."</ref> It can not be supposed, however, that his studies were entirely suspended by his unfortunate habits; for such thirst of knowledge as he had imbibed could not have been slaked by the intoxicating drafts of pleasure, and must still have been indulged in the intervals of dissipation. He must, too, from his position, connexions and circumstances have enjoyed all the advantages of the society for which
</blockquote>

===Page xiii===
<blockquote>
lower Virginia was then, as now, distinguished; and may even, have caught some aspirations after better things from the men with whom he may have met and mingled in the old metropolis of Williamsburg. These suppositions are confirmed by the history of too many of the gifted young sons of Virginia: misguided indeed like Wythe, and whilst moving in the best society, prostituting both genius and learning to dissipation and extravagance; but unfortunately not endowed with his self-control, nor like him recalled to the paths of usefulness and honor. In Wythe's reckless course of ten years, there does not appear to have been any great depravity of conduct. Having the means to "live like a gentleman," he felt no incentive to exertion. But at the age of thirty, by his own strength of will and better purpose, he broke the chains which evil habits might have bound indissolubly around him, and entirely reformed his whole life. The particular causes of this change are not stated: Whether love, the foreseen exhaustion of his resources, his own penitent reflections, or the influence of interested friends; or several of them combined. He appears now to have resumed the study of the Law, under a [[Zachary Lewis|Mr. Lewis]], whose daughter he married. [[wikipedia:Charles Abbott, 1st Baron Tenterden|Lord Tenderden]], we think, has observed that poverty has been the greatest friend of the legal profession. A prospective vision of its approach may have stimulated the exertions of Wythe. Rapid success after his admission to the bar, crowned his learning, industry and eloquence. But he never ceased to deplore the follies and imprudences of which he had been so long guilty; to regard the time allotted to them as irretrievably lost, and to warn the many young men who came under his influence to profit by his example.

The chancery bench of Virginia furnishes other examples of the strength of moral principle; not only in the case of [[William Wirt|Mr. Wirt]], whose friends placed him there with the hope of reforming him; but of another who has since adorned it and in whom years of integrity and morality have borne testimony to the principles that were strengthened by the temptations, which he by his own decision of character resisted in youth.
</blockquote>

===Page xiv===
<blockquote>
Moral grandeur is the truest; and would that our great men not only possessed more of it; but based it upon the precepts and practice of the Christian faith. Mr. Jefferson speaks of the elevated philosophy of Mr. Wythe; but, better still, [[William Munford|Mr. Munford]] speaks, as we shall see, of his faith as a christian.

Wythe, then, it would appear, came to the bar in Williamsburg after the year 1756;* and the following facts shew the eminence to which he must have arisen in the short space of five years. In 1760, Jefferson entered William & Mary College, as a student; and in less than two years thereafter, through the influence of [[William Small|Dr. Small]], was taken under the instruction of Mr. Wythe. Dr. Small was Professor first of Mathematics, and afterwards of Philosophy and Belles Lettres in William & Mary. How Mr. Jefferson regarded his interposition is [[Memoir, Correspondence and Miscellanies from the Papers of Thomas Jefferson|shewn by himself]]. He says, "He (Dr. S.) returned to Europe in 1762, having previously filled up the measure of his goodness by procuring for me from his most intimate friend, George Wythe, a reception as a student of law under his direction, and introduced me to the acquaintance and familiar table of [[wikipedia:Francis Fauquier|Gov. Fauquier]], the ablest man who had ever filled that office. With him and at his table, Dr. Small and Mr. Wythe, his ''amici omnium horarum,'' and myself formed a ''partie quarree,'' and to the habitual conversations on these occasions, I owed much instruction. Mr. Wythe continued to be my faithful and beloved mentor in youth, and my most affectionate friend through life. In 1767, he led me into the practice of the law, at the bar of the General Court, at which I continued till the Revolution shut up the courts of justice."&dagger;

When Mr. Wythe first entered the House of Burgesses is not stated; but he soon took there an honorable stand among men who were the master spirits of their times. From the commencement of the revolutionary spirit of the Colonies, he warm-

<div style="font-size: 85%;">* The biographies of Wythe lead to the impression that he studied with Mr. Lewis, and came to the bar, after his reformation, and about the age of thirty, (i.e. about 1756;) but this is by no means certain.</div>

<div style="font-size: 85%;">&dagger; [[Memoir, Correspondence and Miscellanies from the Papers of Thomas Jefferson|Memoir, Corres. &c, of Jefferson]], Vol. I. p. 2.</div>
</blockquote>

===Page xv===
<blockquote>
ly espoused their cause. Yet his independent course did not lose him the esteem of the royal Governors, for he was intimate with all but [[wikipedia:John Murray, 4th Earl of Dunmore|Dunmore]]; nor of the government party, for he was several times elected to the honorable office of clerk of the house, and also to the speaker's chair, with their support.

In 1764, (aged thirty-eight,) he drew up for a committee of the burgesses, of which he was a member, a [[Remonstrance to the House of Commons|remonstrance to the English House of Commons]]; but it was too bold for the times, though only expressive of the principles which he was ready to avow and maintain. After some softening, it was adopted by the house. Still he was one of those who opposed as unseasonable and inexpedient the famous resolutions of [[Patrick Henry]], concerning the stamp act, in May 1765. Henry's matchless, yea miraculous, eloquence carried them through; but the next day, he having gone home, the fifth resolution,* that had been most opposed, and had been carried by only one vote, was expunged, in 1768, however, they had come up fully to Henry's ground. Mr. Wythe was still a prominent member of the House of Burgesses, which now adopted resolutions asserting in determined language their exclusive right to tax the Colonies; and complaining of the violation of the British Constitution by Parliament and of the oppression of trying in England persons charged with having committed offences here. [[wikipedia:Norborne Berkeley, 4th Baron Botetourt|Governor Botetourt]] endeavoured in vain to procure a copy of these resolutions from the Clerk, Mr. Wythe, and in hope of preventing the completion of their passage dissolved the assembly; but they had anticipated him and already spread them upon the records of their body. The next year, (1769,) the people triumphantly sustained their representatives and returned them to the Assembly. Jefferson had then entered the House as a member: and now preceptor and pupil stood side by side in defence of the rights and liberties of the Colonies. Mr. Jefferson pre-

<div style="font-size: 85%;">* It was as follows: "That the general assembly of this colony have the sole right and power to lay taxes and impositions upon the inhabitants of this colony; and that every attempt to vest such power in any person, or persons whatsoever, other than the general assembly aforesaid, has a manifest tendency to destroy British as well as American freedom." Wirt's Life of Henry, p. 57.</div>
</blockquote>

===Page xvi===
<blockquote>
pared a draft of instructions to be given to the delegates, who should be sent to the Congress he meant to propose ; but it was thought too bold for the existing state of things. It was, however, printed in pamphlet form under the title of "A summary view of the rights of British America." In it he took the ground which he regarded as the only tenable and orthodox one, that the relation between these Colonies and Great Britain was exactly the same as that of England and Scotland, after the accession of James and until the Union; and the same as her present relation with Hanover, having the same executive chief, but no other necessary political connection. In this doctrine he says he could not get any one to agree with him but Mr. Wythe,* who concurred in it from the first dawn of the question, what was the political relation between us and England? Perhaps Mr. Wythe had instilled this doctrine into him. Enough has been stated to shew with what ardor and ability Mr. Wythe must have continued to devote himself to his profession and his country. But little of his acts is recorded until 1775. He then joined one of the earliest corps of volunteers, and evinced his promptness to sustain in the field the cause he had espoused in council. He wore a hunting shirt, carried a musket, and joined in the military parades which took place in Williamsburg during the latter part of Lord Dunmore's administration. But his friends at length persuaded him that he could be more useful to the state in a civic sphere.&dagger;

For that incompetent and corrupt representative of the Crown, Lord Dunmore, whose character and conduct were well calculated to bring the royal authority into contempt, Mr. Wythe had any thing but respect;—he regarded him as mean and ignorant. One day, in the General Court, over which Governor Dunmore

<div style="font-size: 85%;">* Memoir, Corresp. &c. of Mr. Jefferson, Vol. I. p. 6, 7 and 92. As to Mr. Henry, (who might have been expected to concur,) Mr. Jefferson sent him a copy of the MS. and says, "Whether Mr. Henry approved the ground taken, or was too lazy to read it, (for he was the laziest man in reading I ever knew,) I never learned: but he communicated it (the MS.) to nobody," p. 7 of Memoir, &c.</div>

<div style="font-size: 85%;">&dagger; See a communication in the [[Richmond Enquirer, 10 June 1806|Richmond Enquirer of June 10th, 1806]], in relation to Mr. Wythe.</div>
</blockquote>

===Page xvii===
<blockquote>
then presided, Mr. Wythe and [[Robert Carter Nicholas|Mr. Nicholas]] were engaged on one side of a cause; [[Edmund Pendleton|Mr. Pendleton]] and [[George Mason|Mr. Mason]] on the other. The case being called, Mr. Wythe urged the trial of it; Mr. Pendleton wished it continued, as Mr. Mason was absent, and there were two counsel on the other side. Lord Dunmore had the indelicacy to say to Mr. Pendleton, "Go on, sir, for you'll be a match for both of them." ''"With your Lordship's assistance,"'' retorted Mr. Wythe, sarcastically, but at the same time bowing politely. The spectators enjoyed the rebuke, so keenly and politely administered. Yet Mr. Wythe was a man of kind and benevolent heart. In 1775, he was appointed a delegate to the Continental Congress; and the next year joined heartily in the debates urging the Congress, in pursuance of the recommendation of Virginia, to declare the colonies free and independent; and fearlessly signed the immortal Declaration drawn by his own grateful pupil. The same year, 1776, he was appointed, with Mr. Jefferson and others, to revise the entire jurisprudence of the State, and to adapt it to her independent position, and the republican principles embodied in her new Government. The part specially undertaken by Mr. Wythe, was the British Statutes from the 4th year of James I, to the then present period. Mr. Jefferson took the British Statutes prior to the 4th James I; including the statutes of descents, for religious freedom, and apportioning crimes and punishments; Mr. Pendleton, the Virginia laws: All, however, revised the work of each. They made their report in 1779, and many new laws, rendered necessary by the new order of affairs, were from time to time adopted; but the main body of the revision was not acted upon till 1785. The code adopted was then termed the Chancellor's Revisal. In the two sessions of the assembly in 1777, between his return from Congress and his appointment as Chancellor, Mr. Wythe was Speaker of the House, but took an active and efficient part in whatever was before the committee of the whole. His pure integrity, judgment and reasoning powers, gave him great weight.* Towards the close of the same year, he was appointed

<div style="font-size: 85%;">* It was not alone by his labors in Congress and the General Assembly, that he endeavored to serve the cause of his country. There is still extant a copy of an</div>
</blockquote>

===Page xviii===
<blockquote>
one of the three Judges of the High Court of Chancery; and on the new organization of that court, in 1788, sole chancellor.

The High Court of Chancery was established in 1777, in the second year of the Commonwealth. It consisted of three judges, chosen by joint ballot of both houses of assembly, commissioned by the Governor, and to hold their office "so long as they demeaned themselves well therein." Their salary was five hundred pounds; but was increased the next year to £800; and the next to £1200. The Court had general jurisdiction in all causes in chancery, whether by original or on appeal; but no original suit could be instituted therein for a less sum than ten pounds, except against a justice of a county or other inferior Court, or the vestry of any parish. It held two terms a year, in the City of Williamsburg.*

The oath required of the Judges shews the spirit in which the administration of justice was regarded by the pure patriots of that day;—a spirit, too, in which Wythe is universally admitted to have executed his office:&dagger; "You shall swear that well and truly you will serve this commonwealth in the office of a judge, and that you will do equal right to all manner of people, great and small, high and low, rich and poor, according to equity and good conscience, and the laws and usages of Virginia, without respect to persons. You shall not take by yourself, or by any other, any gift, fee or reward of gold, silver, or

<div style="font-size: 85%;">[[Address to the Foreign Mercenaries|address to the Hessians]],<ref>''Letters of Delegates to Congress, 1774-1789'', ed. Paul Hubert Smith, vol. 4, ''May 16-August 15, 1776'' (Washington, D.C.: Library of Congress, 1979), 111-112.</ref> written by him, to induce them to desert the unjust cause they were defending. Geo. W. Randolph, Esq., informs me that he has seen the address among the papers of Mr. Jefferson, recently purchased by Congress. What use was ever made of it, I am not advised.</div>

<div style="font-size: 85%;">* 9 Hen. Stat. 389-399, 521.</div>
<div style="font-size: 85%;">&dagger; The seal of the court, too, was a perpetual memento of the stern and uncorrupt impartiality that should characterise the judicial office. The Chancellor says that he was indebted to the ingenious Benjamin West, the celebrated painter, for the allusion among the devices on that seal to the story of Sisamnes related by Herodotus. For accepting a bribe, Cambyses had Sisamnes killed and flayed, and his skin cut in straps and stretched about the judicial seat. He then appointed Otanes, son of Sisamnes, judge, and told him to remember the seat upon which he sat to administer justice.—''Herod. Lib. V. cap.'' 25-6. See following reports, p. 211.</div>
</blockquote>

===Page xix===
<blockquote>
any other thing,* directly or indirectly, of any person or persons, great or small, for any matter done or to be done by virtue of your office, except such fees or salary as shall be by law appointed. You shall not maintain by yourself, or by any other, privily or openly, any plea or quarrel depending in the Courts of this Commonwealth. You shall not delay any person of right, for the request or letters of any person, nor for any other cause; and if any letter or request come to you contrary to law, you shall proceed to do the law, any such letter or request notwithstanding. And finally, in all things belonging to your said office, during your continuance therein, you shall faithfully, justly and truly, according to the best of your skill and judgment, do equal and impartial justice, without fraud, favor or affection, or partiality."

Such special oaths, however, unnecessarily encumbered our Statute Books, till the amendment in that respect recently introduced by the New Code. Whilst there has been in the judiciary of Virginia every grade of ability and efficiency, all have been remarkably upright; and even where some of the judges have been of immoral character, they have never incurred any imputation upon their official integrity. No [[wikipedia:Francis Bacon|Bacon]], or [[wikipedia:Thomas Parker, 1st Earl of Macclesfield|Macclesfield]], or [[wikipedia:George Jeffreys, 1st Baron Jeffreys|Jeffreys]], or [[wikipedia:William de Thorpe|Thorpe]] has ever disgraced the Bench of this Commonwealth.<ref>Francis Bacon (1561 – 1626), charged with corruption and disgraced; Thomas Parker, 1st Earl of Macclesfield (1666 – 1732), impeached and convicted of taking bribes; George Jeffreys, 1st Baron Jeffreys (1645 – 1689), thrown in the Tower of London after the overthrow of King James I; William de Thorpe (d. 1361), imprisoned for corruption, and later excommunicated.</ref>

In 1780 the Court was removed to Richmond. The currency having become still further depreciated, the salaries of the judges were changed to 20,000 lbs. tobacco, payable quarterly, the value to be fixed by a jury of freeholders before the County Court of Henrico; and were finally fixed at £300 in specie.—The Judges of the High Court of Chancery were ex-officio Judges of the Court of Appeals, where they were entitled to precedence. Judge Pendleton was President of both. The other high chancellors were first R. C. Nicholas, and afterwards Mr. Blair.

In 1788, the number was reduced to one, and the terms of the court increased to four a year, still holden at Richmond. The

<div style="font-size: 85%;">* See the [[#Page xxxii|anecdote related by Mr. Clay]], infra.</div>
</blockquote>

===Page xx===
<blockquote>
jurisdiction extended over the whole State till 1801, when the State was divided into three districts, and with a Superior Court of Chancery, and a separate Chancellor in each. These Courts were held at Richmond, Staunton and Williamsburg; and such remained the system till after Mr. Wythe's death.

During the revolution the courts were almost entirely closed, which no doubt gave Wythe and many other leading patriots the opportunity to devote nearly their whole time to the service of the State. His time and talents were not all that he contributed, for he suffered many pecuniary sacrifices; and the greater part of his slaves were carried over to the enemy, by the dishonest manager of his Hampton estate.

By a change in the organization of William and Mary, effected chiefly by Mr. Jefferson, who was then Governor of the State, and one of the visitors of the college, a professorship of Law was established, and Chancellor Wythe appointed to fill it, in 1781. He discharged its duties with great ability and usefulness for eight years.

It has already been stated that, as Chancellor, he was one of the Judges of the first Court of Appeals,* in which his intrepidity and uprightness were forcibly exhibited in opposing and vacating as unconstitutional, the action of one branch of the Legislature. That court held in the case of the ''[[Commonwealth v. Caton]] et als.'', 4 Call 5, that the treason law of 1776 was constitutional; and the House of Delegates could not, without the concurrence of the Senate, pardon persons condemned by the General Court, under that law.

In delivering his opinion, Wythe J. said: "although it was said the other day, by one of the Judges, that imitating that great and good man, Lord Hale, he would sooner quit the bench, than determine this question, I feel no alarm, but will meet the

<div style="font-size: 85%;">* Which consisted of the Judges of the High Court of Chancery, those of the General Court, and those of the Admiralty, assembled together. Chan. Rev. 102. And the sitting members in the case of Caton, S&c., were ''Pendleton, Wythe'' and ''John Blair,'' chancellors; ''Paul Carrington, Bartholomew Dandridge, Peter Lyons,'' and ''James Mercer,'' Judges of the General Court and ''Richard Carter'', one of the Judges of the Court of Admiralty. This was in Nov., 1782. 4 Call 5.</div>
</blockquote>

===Page xxi===
<blockquote>
crisis as I ought; and in the language of my oath of office, will decide it according to the best of my skill and judgment. I have heard of an English Chancellor who said, and it was nobly said, that it was his duty to protect the rights of the subject against the encroachments of the crown; and that he would do it at every hazard. But if it was his duty to protect a solitary individual against the rapacity of the sovereign, surely it is mine to protect one branch of the Legislature, and consequently the whole community, against the usurpations of the other; and whenever the proper occasion occurs, I shall feel the duty, and fearlessly perform it." Such was really the spirit of the man and the Judge, as he had other occasions to prove. One other will yet be mentioned.

Some biographers have stated that Wythe was a member of the Convention of 1787, which formed the Constitution of the United States. This is a mistake. He was appointed one of the seven deputies from Virginia. But he, prevented perhaps by his double duties of Chancellor and Professor, and Patrick Henry never took their seats. He was, however, a member of the State Convention which ratified the Federal Constitution, and presided over their deliberations in Committee of the Whole. He was a strenuous advocate of the ratification of the instrument; and Chairman of the committee which reported the amendments thereto proposed by Virginia. He was a member afterwards of the Republican party, which he adorned by truly republican virtue and simplicity; and twice successively presided over the college of electors in Virginia.

In 1789, when he became sole chancellor, he resigned his professorship in Williamsburg, and removed to Richmond, that he might be nearer the theatre of his judicial duties, and more convenient to those who might require his official services during the vacation of his Court.

The other occasion referred to in which his intrepid uprightness displayed itself, was in the case of the British Debts in 1793. After the peace, in 1783, there were in Virginia many persons who owed debts in England: among whom was Mr.
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===Page xxii===
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Robinson, who had been the Treasurer of the Commonwealth. The Legislature had passed a law that payments of paper money into the loan office of the State in satisfaction of debts to British creditors should discharge the debtors. Such men as Edmund Pendleton and Peter Lyons, as administrators of Robinson, sought for their intestate's estate, the protection of a payment under that law. The Court below had extended it to them, and the popular feeling was in their favor. But the venerable chancellor stemmed the tide, and decreed against them; and lived to enjoy the satisfaction of receiving the applause even of those who wished and would have justified a different decision. "A Judge," says he, "should not be susceptible of national antipathy, more than of malice towards individuals;—whilst executing his office, he should be not more affected by patriotic considerations, than an insulated subject is affected by the electric fluid in the circumjacent mass, whilst their communication is interrupted. What is just in this Hall is just in [[wikipedia:Westminster Hall#Westminster_Hall|Westminster Hall]], and in every other prætorium upon earth. Some judges in the West Indian Islands have been execrated by citizens of the United American States, for several late sentences against the latter, in favor of British subjects, in certain maritime causes; justly execrated if fame hath not mis-reported their conduct. None of those citizens, surely, can wish to see the tribunals of their own country so polluted."*

In 1795, Mr. Wythe published a report of this case, with a number of others in his Court, in a folio volume. Though some of the cases reported were ended in that Court without appeal, and in others the decrees were sustained by the Court of Appeals, yet the chief object of the publication seems to have been to vindicate the decisions of the author from the opposite opinions of the Appellate Court; and in a few instances, of his associate chancellors. In general, and in his writings on other

<div style="font-size: 85%;">* See the following Reports, p. 211: Mr. Munford in his funeral oration says: "Yet to the immortal honor of the people of Virginia, be it said, those decisions did not diminish his popularity; but made them admire and respect him more than ever."</div>
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===Page xxiii===
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subjects, his style may have deserved the compliments sometimes paid to it; but there is in it as exemplified in his Reports, though some are very wellwritten, no little of stiffness and formality, with some affectation and even pedantry. Even good style is exceedingly various ; and one may write well in a bad style. The tone of his comments on the reversal of his decrees by the Court of Appeals, together with the selection of several of the cases reported and commented on, suggests the idea that there was some pique or jealously between him and some of the judges of the higher Court. Enquiries have confirmed this. The same impression has been produced on other minds by the same evidences ; and one of the senior judges of the State writes, that "during their lives there seemed to be a very general impression on the public mind that the personal feelings of Mr. Pendleton and Mr. Wythe towards each other, were less kind and amicable than might have been expected in the bosoms of two men so universally respected for their general amiable temper. In the case of Eppes and Randolph, there is a remark made by Judge Pendleton, in reference to his venerable compatriot, which I have always wished could be expunged from the report."*

In 1796-9 Mr. Wythe published separately, in pamphlet form, reports of seven other cases decided in his Court, with comments upon the reversal of them by the Court of Appeals. All these reports are contained in the volume herewith submitted to the public.

The long period of seventeen years between his removal to Richmond and his death was spent in the faithful discharge of the duties of his office, to which he gave his undivided atten-

<div style="font-size: 85%;">* 2 Call 184. The remark is this: "The term re-acknowledgment [of a deed] seems to have produced in the mind of the Chancellor mistaken ideas. * * * A mistake which information from our clerk would correct." In the same Report Judge Pendleton uses the phrase "clashing jargon" in such juxta position with a comment upon the Chancellor's opinion under review, that it also has been by some construed into an unfriendly hit at the Chancellor; but we hope it was intended to refer only to the conflict between the cases alluded to as cited by the counsel in the argument of the case. 2 Call p. 185.</div>
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===Page xxiv===
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tion. It is impossible, however, but that a man of his position, influence and positive character should have felt a deep interest and sometimes taken a leading part, by counsel at least, in many important public matters. We have seen that he presided twice over the electoral college; and being not only the personal but political friend of Jefferson during the memorable struggles about the year 1800, from his nature and the spirit of the times, we know that he could not have been inactive any farther than his judicial office rendered it imperative. The following characteristic letter* belongs to this period.

<center>"WYTHE TO JEFFERSON."</center>
"The friends of Alexander Quarrier will be not a little gratified by hearing that his son, of whom they think well, hath been promoted to some office which he shall be found qualified to execute. Farewell. 4th of July, 1801."

This is certainly brief and non-committal; but intended as it no doubt was, it had more weight than the puffs for office now too much in vogue, whilst its curt generality would commend it to the adoption of the multitudes, who are constantly solicited to aid the aspirations of those of whose qualifications they know nothing. It brings to mind the general letter of introduction which Dr. Franklin was constrained to draw up, whilst he was our minister to France, in order to save his sincerity, whilst he complied with the applications for such letters that were constantly made to him.

As a practitioner of law, Mr. Wythe erected for himself the highest standard of propriety, candor and fidelity; and a letter of his is still extant,&dagger; in which he declines undertaking a cause tendered him, because he could not conscientiously promote the views of his client.

<div style="font-size: 85%;">* Kindly furnished us by Geo. Wythe Randolph, Esq., grandson of Mr. Jefferson. The original closely resembles print,—the usual style of Mr. Wythe's writing.</div>
<div style="font-size: 85%;">&dagger; Among the papers of Mr. Jefferson recently purchased by Congress.<ref>Presumably Minor is referring to a letter remembered by Parson Weems in [[Honest Lawyer|''The Times'' of Charleston, SC, in 1806]] and subsequently reprinted in other American newspapers, but that particular letter does not appear among Jefferson's papers.</ref></div>
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===Page xxv===
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As a judge he was not only fearlessly upright and independent, but able, punctual, attentive and industrious. John Randolph used to say of him " that he lived in the world without being of the world. That he was a mere incarnation of justice,—that his judgments were all as between A. and B.; for he knew nobody, but went into Court as [[wikipedia:Astraea (mythology)|Astræa]] was supposed to come down from Heaven, exempt from all human bias."* Mr. Wythe himself declared, that even "compassion ought not to influence a judge, in whom, acting officially, apathy is less a vice than sympathy."&dagger; His learning was extensive both in his profession, and in general science and literature; and he has taken a quaint and even eccentric pleasure in stamping upon his reports and the records of his Court‖ traces of his learning; especially in logic, mathematics and the classics. "Not only was the father of poetry his intimate companion, but the philosophers, historians, and even dramatic poets of antiquity were as familiar to him in their original dress as were almost all the meritorious works of the day in his vernacular tongue. The writer of this sketch has heard him denominated emphatically 'the walking library.'"&Dagger;

Mr. Wythe had been twice married; first, as already stated, to the daughter of Mr. Lewis, with whom he studied law; and

<div style="font-size: 85%;">* From a letter of Judge Beverly Tucker to the Editor.</div>

<div style="font-size: 85%;">&dagger; Following Reports, p. 282.</div>

<div style="font-size: 85%;">‖ Communication in the [[Richmond Enquirer, 10 June 1806|Richmond Enquirer, June 10th, 1806]].</div>

<div style="font-size: 85%;">&Dagger; An instance of this occurs in the decree rendered in May, 1804, expounding the will of Patrick Henry. After quoting the parable in St. Mathew, ch. xx.,<ref>[http://www.kingjamesbibleonline.org/Matthew-Chapter-20/ Matt. 20:1-15] tells of a vineyard owner who pays his workers the same fee whether they worked one hour or all day.</ref> he says "the land was a gift, not naturalie nor moralie to be retributed or countervaled by price, by pounds or dollars, and their fractional parts, but meriting an intirelie different remuneration, namelie, th' effusions of 'a gratefull mind, Which owing owes not, but still pays, At once indebted and discharged;'" Then he adds this note. "Paraphrase, by Milton of 'commode autem, quicumque dixit; pecuniam qui habeat, non reddidisse; qui reddiderit, non habere; gratiam autem et qui retulerit, habere; et qui habeat retulisse.' Cic' de offic' lib' 2, cap' 20. One, whoever he was, said well, 'a debitor, before paiment, may have the money due, and have it not after paiment; but he who is grateful, both hath what he paieth, and paieth what he hath.' The same sentiment occurs in this passage. 'Dissimilis est pecuniæ debitio et gratiæ, nam qui pecuniam dissolvit, statim non habet id, quod redidit: qui autem debet, æs retinet alienum gratiam autem et qui refert habet; et qui habet, in eo ipso quod habet, refert.'</div>
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===Page xxvi===
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secondly to a member of the wealthy and influential family of Taliaferro. The only child he ever had died in infancy. He was a widower for several years, before his death.

His earthly career was terminated suddenly and unexpectedly, though he was in his eighty first year, on the 8th of June, 1806.

<div style="font-size: 85%;">Cic' pro Cn' Plancio, c' 19, for which i was obliged to m' Warden. G,' W'" A little mathematics is also introduced into the same decree. But a more amusing instance occurs in a "dissertation and decree" rendered March 7th, 1806, not long before his death. The question was whether certain devisees took estates for life, or estates tail, converted into fees. The conflicting arguments of counsel seem to have produced a singular impression upon him. At one time, he says, "a phalanx of authorities, adjudged cases so styled, hath been mustered, and an argument, a rhapsody, replete with law learning, hath been formed to prove, &c." And again, "Aulus Gellius, (lib' 5 cap' 10) in his attic lucubrations, observes that those arguments are very vicious which, against him who uses them, may with equal cogencie be retorted by his antagonist, and of which he gives an example, which is in the note." That note is as follows: "Eualthus, a wealthie young man, desirous of studying eloquence and of learning to plead causes, and for that purpose becoming a disciple of Protagoras, an acute sophist, and paying to him one half of a liberal fee which he required, contracted to pay him the remainder whenever he, Eualthus, should plead a cause and prevail in it. Eualthus, for a long time, was the pupil of his præceptor, and made a considerable progress in oratorie and jurisprudence, but would not engage in the practice of Law. Protagoras suspecting that Eualthus declined it, to avoid payment of the other half of the fee, institutes an action against him, for breach of contract, expecting that a cunning argument, as he thought one that he had devised to be, would insure success. When the parties were convented before the judges, Protagoras addressing his speech to Eualthus began thus, 'Know, said he, thou most foolish young man, that thou must pay to me what I demand, whether the judgment be against thee or for thee; for if it be against thee, my wages will be due by the Court's sentence; but if it be for thee, my wages will he due by the contract, because thou wilt have gained a cause.' To which Eualthus answered, 'Know thou, too, most wise master, that it cannot either way be that I must pay to thee what thou demandest, whether the judgment be for or against me; for if it be for me, by the court's sentence nothing will be due to thee; if it be for thee, nothing will be due to thee by the contract, because I shall not have gained a cause.' The Judges thinking what was said on both sides to be dubious and inexplicable, lest their sentence on whichever side it should be pronounced, should refute itself, left the matter undetermined and adjourned the cause in ''diem longissimam.''" Again he says,—"The argument, (of the plff's counsel,) then, at this time is as unseasonable as the condolence in the address of ambassadors from Troas to Tiberius Cæsar upon the death of Augustus Cæsar, which had happened a longtime before; to which part of that address, the Emperor to whom it was presented, as Josephus re-</div>
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===Page xxvii===
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Like Jefferson and all the leading men of that day, he was in favor of the emancipation of slaves. He had liberated three, a man, woman and boy, and by his will made suitable provision for their support. He had taught the boy to read and write.—The legatee of the greatest portion of his estate was his great nephew, George Wythe Swinney, the grandson of his sister.—The freedom [''sic'']<ref>Read: "freedman": Wythe's servant Ben Smith, who died before the last codicil to Wythe's will.</ref> died in his life time and a codicil to his will increased the provision made for the boy,—which, in case the boy should die before the age of twenty-one, was also to go to the nephew. The boy died suddenly, a few days before Wythe himself, and a second codicil to the will, reciting that the boy had died that morning, revokes all the devises in behalf of Swinney, and leaves the whole estate to be equally divided among Swinney's brothers and sisters. These facts and the circumstances attending the venerable chancellor's death excited suspicion that poison had been administered to him; and Swinney was subjected to a public prosecution for the crime of murder, accompanied by the blackest ingratitude.

<center><div style="font-size: 85%;">"How oft alas! does goodness wound itself,<br />And sweet affection prove the source of woe!"</div></center>

The circumstances of suspicion were quite strong; two indictments were found against him, in September 1806; he was

<div style="font-size: 85%;">lates, answered that he heartilie condoled with them upon the death of their Hector." Again he says: "Dyonisius Halicarnassus in his commentarie upon Homer remarks, that one principal art of an orator is to use arguments the weakest he can invent to maintain that side of an argument which he pretends to patronise but wishes to be decided the other way, and oppose most faintlie those arguments which are urged against him. Thus Agamemnon, pretending to recommend abandonment, which he reallie dreaded, of the siege of Troy, gave the most powerful reasons for its continuance. And the arguments of the plff's counsel appear to the Court to favour the contrarie side of the question, conclusivelie." In another decree, (Sept. 18, 1805,) he quotes Justinian's Institutes, Homer's Odyssy, Xenophon, and the Alcestis of Euripides. In another case, (6th of March, 1801,) in construing the will of Robert Beverly, deceased, he decides that "that the plff., the widow, is not entitled to the carriages, with the caps and boots provided for the drivers thereof claimed in her bill. ('Fine subjects for a HIGH Court of Chancery, are they not?' exclaims he in a note.) "Nor is she entitled to the pipe of wine, which although ordered by the testator for the use of his family, had not arrived, and so was not part of 'the liquors in or about the house at the time of his death.'" These few instances have been taken from the records of the Court.</div>
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tried upon one and acquitted, and then the attorney for the commonwealth entered a ''nolle prosequi.''* But four indictments had also been found against him for a misdemeanor in obtaining money, the preceding April, from the Bank of Virginia, upon a false check in the name of Mr. Wythe. He was, therefore, remanded to jail to be tried upon these. He was convicted and condemned to six months' imprisonment in jail, and to one hour's exposure on the pillory, at the market-house in the city of Richmond. But this sentence was never executed. The General Court had arrested one judgment; but the appeal to them on another indictment was ineffectual; yet the Court below granted him a new trial, and then the prosecuting attorney entered a ''nolle prosequi.''&dagger; The unfortunate man then sought refuge in the West; where his career was brought to a premature and miserable close. During the Chancellor's sickness, he endeavored to continue the discharge of his duties; and despite the racking pains which he suffered, studied cases pending before him, and lamented deeply the inconvenience and delay which his sickness would cause to the suitors in his Court.&Dagger;

<div style="font-size: 85%;">* At the time of the poisoning, the Chancellor had been confined at home by indisposition. Swinney, indignant at the kindness and munificence of his uncle to the colored boy, intended to poison the boy, and put the poison in the coffee for breakfast, not expecting that the Chancellor would think of coming from his chamber, or would be in any danger of partaking of it. But during his absence, the Chancellor did make his appearance and drank of the coffee. The woman also died. These facts were obtained from Dr. John Dove, who then resided in that neighborhood, and was present when Mr. Wythe breathed his last. The residence of Mr. Wythe in Richmond was a yellow wooden house, with hip-roof, situated on the corner of Fifth and Grace Streets. The garden attached to it extended to Franklin Street, and embraced half the square. It was cultivated as a market garden for several years after his decease. For several years after that sad event, the house was occupied; but then became so dilapidated that it was untenanted. Finally the youths of the city, who had formed a Thespian Corps, obtained the use of it gratis for their performances, and knocked down the partitions to make it suit their purposes. Its ruins and its garden have now made way for some of our handsomest mansions.</div>
<div style="font-size: 85%;">&dagger; The records of these proceedings have been consulted in the office of the Superior Court of Law for Henrico County. See also 1 Va. Cas. pp. 146, 150.</div>
<div style="font-size: 85%;">&Dagger; Munford's Eulogy.</div>
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===Page xxix===
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Great solicitude was felt for his recovery. As soon as the news of his death was made public, the bells of the city were set a tolling, the Executive Council assembled, adopted an order for a public procession, and appointed Wm. Munford, Esq., one of their body, to [[Oration, Pronounced at the Funeral of George Wythe|pronounce a funeral oration]] over the deceased.* Mr. Munford had been a pupil and protege of Mr. Wythe. After the death of his father, whilst he was pursuing his studies at William & Mary, he would have been compelled to leave college in consequence of the embarrassments of his father's estate. Mr. Wythe, who had observed his assiduity, was then about to remove to Richmond, and proposed to him to come and study in his office. This generous offer was accepted; and Mr. Munford's conduct ever afterwards evinced his gratitude. The duty assigned him by the Executive Council was promptly discharged with ardor and affection; and he drew a moral and intellectual portrait of his departed friend, which any one might envy.&dagger; He rescued his memory, too, from the charge of infidelity that had been asserted against it; and says that in his last sickness he repeatedly prayed to Jesus Christ as his Savior; and the correspondent in the Enquirer, already referred to, says, that not long before his death, he exclaimed "let me die righteous." Mr. Munford thus feelingly speaks of his zeal in the cause of education: "The most remarkable instance of his genuine patriotism, to which I confess I am rendered most partial, perhaps, by my own experience of its effects, was his zeal for the education of youth. Harassed as he was with business, enveloped with perplexing papers and intricate suits in Chancery, he yet found time for many years to keep a private school for the instruction of a few young men at a time, always with very little, and often demanding no, compensation."

<div style="font-size: 85%;">* It is believed that his remains were deposited in the grave-yard around St. John's Church, in Richmond. But the place is [[Wythe Monument|not marked by the slightest memorial]]. Ought not the bar of Richmond to have it identified, if practicable, and appropriately cenotaphed.</div>
<div style="font-size: 85%;">&dagger; This oration is published in the Richmond Enquirer, of June 13th and 17th, 1806.</div>
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===Page xxx===
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He also bears hearty testimony to the private virtues of the Chancellor, his frugality, simplicity, benevolence and modesty. Though naturally of a quick temper, he had brought it under his control. Quickness and even impatience of temper are, however, entirely compatible with true kindness of heart, and a disposition to be just to every one. He was sometimes facetious with his friends; but his general deportment was reserved. Although he lacked neither quickness of parts, nor colloquial talents, he was cautious and taciturn,* unless roused by some improper remark, and then he was apt to retort with great severity. He possessed dry humor and considerable wit, and indulged in sarcasm when treated with disrespect. Of this an instance has been given in his retort upon Lord Dunmore.

"In debate," says Mr. Call, "Mr. Pendleton was more captivating; Mr. Wythe more argumentative.' Caesar ne priorem, Pompeius ve parem,' was a question which produced no animosity between them; but which the world never decided."

In venturing the opinion, that this question has been decided in favor of Mr. Pendleton, it is not intended to disparage Mr. Wythe. Though there may never have been between these two honored men any feeling strong enough to be styled animosity, yet it seems apparent from the circumstances already adverted to, that from some cause, there was some unpleasant feeling between them. Pendleton's nature was milder than

<div style="font-size: 85%;">* He sometimes politely bowed in persons calling on business, attended to it and then politely bowed them out of the house, without speaking a word. He was in the habit of going very early, rather in dishabille, to a neighboring bakery to buy his own bread; and for days successively put down his money and took his loaf without uttering a word. Judge Beverly Tucker communicated the following anecdotes: Mr. W. visited nobody but his relation, Mrs. Taliaferro, who lived four miles from Williamsburg; and being a great walker always went on foot, sometimes taking young Munford with him. One evening, as they set out together, M. said on leaving the door, "a fine evening, sir." To which, as they entered Mrs. T.'s house, the old man replied, "yes, a very fine evening."—There was then a coffee-house in Williamsburg, next door to which my informant lived, and much of the gossip of which, of course, reached her. One evening, she says, Mr. W. was seen approaching the coffee-house. "Here comes Mr. Wythe," said one; "I wonder if he will talk this evening." Some said yes, some, no. "I'll make him talk," said a saucy negro boy, who being always</div>
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===Page xxxi===
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Wythe's, and he did not manifest this feeling as much as the Chancellor did.

Other and abler pens will complete this tribute to his memory. "His virtue." says Mr. Jefferson," was of the purest kind; his integrity inflexible and his justice exact; of warm patriotism, and devoted as he was to liberty and the natural and equal rights of men, he might truly be called the Cato of his country, without the avarice of the Roman; for a more disinterested person never lived. Temperance and regularity in all his habits gave him general good health, and his unaffected modesty and suavity of manners endeared him to every one. He was of easy elocution, his language chaste, methodical in the arrangement of his matter, learned and logical in the use of it, and of great urbanity in debate. Not quick of apprehension, but with a little time profound in penetration, and sound in conclusion. His stature was of the middle size, well formed and proportioned, and the features of his face manly, comely and engaging. Such was George Wythe, the honor of his own and the model of future times."

Besides those of lesser distinction, Mr. Wythe was the pre-

<div style="font-size: 85%;">about the house had become a sort of licensed pet of the customers. The old man entered, walked in silence to the fire, and turning his back to it, stood with his hands behind him. The boy put the hot poker in his hand. "What did you do that for?" was all he said. Judge T. also gives the following personal reminiscence of him, and says: "I was taught from my childhood to venerate him as the purest of human beings." "I have still," says he, "in my mind's eye, the tall, pale, extenuated old man, that I used to see walking silent and alone before the door, and whom we boys always beheld with a feeling akin to superstitious awe. I recollect that once meeting me alone, he surprised me by patting me on the head, speaking kindly to me; and then putting his long bony finger into my hand, leading me up into his chamber, and showing me a swarm of bees at work in a hive which he had fitted against one of the panes of his window." Judge Tucker when he penned these sentences was filling the chair of law in the University of William & Mary, that was first filled by Mr. Wythe. He has since gone to his last account, full of merited honors. We tender to his memory the respectful tribute of a grateful pupil. These details of Mr. Wythe are given to complete the picture of the man. Even his eccentricities and affectations, if such they be deemed, leaned to virtue's side, and were the natural result of his studious and retired mode of life operating upon the qualities which long formed the basis of his character.</div>
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===Page xxxii===

''Main article: [[Henry Clay to B. B. Minor, 3 May 1851]]''

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ceptor of two presidents, and a Chief Justice of the United States. The following letter* shews that his connections with the eminent greatness of his country are not yet severed:&dagger;

<div align="right">ASHLAND, May 3, 1851.</div>
''My Dear Sir,''—I duly received your favor of the 21st ult., in which you inform me that one of the Richmond booksellers intends to publish a new edition of the reports of the lamented Chancellor Wythe, and you express a wish that I would furnish a brief memoir of the illustrious author. It would be a most pleasing and grateful task to comply with your request, if I possessed the requisite authentic materials, and the requisite capacity to prepare the work. But the first condition does not exist, and it is therefore unnecessary to dwell upon the second. My acquaintance with the Chancellor commenced in the year 1793, in my 16th year, when I was a clerk in the office of the court over which he presided, and when I think he must have passed the age of three score years and ten. I knew nothing personally of his career at the bar, of his ancestry, or of the part which he had taken in public affairs. I understood that he was born in Elizabeth City, that he was taught the Greek letters by his mother and afterwards by her assistance, and by his own exertions, he became an accomplished Greek scholar. How he learned the Latin language I do not remember to have heard, but probably at William & Mary college, or at some other college in lower Virginia. When I first knew him, his right hand had become so affected with the rheumatism or gout, that it

<div style="font-size: 85%;">* For that letter special acknowledgments are hereby tendered to the writer. It came very promptly in response to a simple request, made by one who had no claims upon his attention save those of a cordial respect manifested, as opportunity has offered, during an acquaintance of several years; and at a time when it was known that the pressure of numerous engagements, caused by a long absence from home, furnished so good a reason for not complying with it as almost to have prevented it from being made. The public, like ourselves, will feel deeply indebted to that generous disposition to pay tribute to the worthy, and that grateful affection towards a venerable friend which have furnished them the following sketch. We were unwilling to weave it into our own narrative.</div>
<div style="font-size: 85%;">&dagger; The Hon. Littleton W. Tazewell, still living, was one of his pupils.</div>
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===Page xxxiii===
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was with difficulty he could write his own name. Owing to that cause he engaged me to act as his amanuensis and I attended him frequently, though not every day, to serve him in that capacity for several years. Upon his dictation, I wrote, I believe, all the reports of cases which it is now proposed to republish. I remember that it cost me a great deal of labor, not understanding a single Greek character, to write some citations from Greek authors, which he wished inserted in copies of his reports sent to Mr. Jefferson, Mr. Samuel Adams, of Boston, and to one or two other persons. I copied them by imitating each character as I found them in the original works.

Mr. Wythe was one of the purest, best, and most learned men in classical lore that I ever knew. Although I did not understand Greek, I was often highly gratified in listening to his readings in Homer's Illiad and other Greek authors, so beautifully did he pronounce the language. No one ever doubted his perfect uprightness, or questioned his great ability as a Judge. I remember an incident which occurred in my presence which demonstrated with what scrupulous regard he avoided the possibility of any imputation upon his honor, or his impartiality. A neighbor of his, Mr. H —————, who had the reputation of being a West India nabob, and who at the time had an important suit pending in the Court of Chancery, sent him a demijohn of old arrack, and an orange tree for his niece, Miss Nelson, then residing with him. When the articles were brought into Mr. Wythe's house, with the message from the donor, Mr. Wythe requested the servant to take them back to his master, and to present to him his respects, and thanks for his kind intentions, but to say that he had long ceased to make any use of arrack, and that Miss Nelson had no conservatory in which she could protect the orange tree. I was amused at another scene, which I witnessed between him and the late Justice Washington of the Supreme Court, then practising law in the city of Richmond. He called on the Chancellor with a bill of injunction in behalf of General —————, to restrain the collection of a debt. The ground of the application was that the creditor had
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===Page xxxiv===
<blockquote>
agreed to await the convenience of General —————, for the payment of the debt, and that it was not then convenient to pay it. The Chancellor attentively read the bill through, and deliberately folding it up, returned it to Mr. Washington, enquiring with an ineffable smile upon his countenance, "do you think, sir, that I ought to grant this injunction?" Mr. Washington blushed and observed, that he had presented the bill at the earnest instance of his client.

Mr. Wythe's relations to the Judges of the Court of Appeals were not of the most friendly or amicable kind, as may be inferred from the tenor of his reports. Conscientiously and thoroughly convinced of the justice and equity of his decrees, he was impatient when any of them were reversed, and accordingly evinces that feeling in his reports. Mr. Pendleton, from what I have heard, and the little I knew of him, I suppose was more prompt and ready, and possessed greater powers of elocution than his great rival. Mr. Wythe's forte, as I have understood, lay in the opening of the argument of a case, in which for thorough preparation, clearness and force, no one could excel him. He was not so fortunate in reply. Mr. Pendleton, on the contrary, was always ready both in opening and concluding an argument, and was prompt to meet all the exigencies which would arise in the conduct of a cause in Court. The consequence was that Mr. Pendleton was oftener successful than Mr. Wythe in their struggles at the bar. On one occasion, when Mr. Wythe, being opposed to Mr. Pendleton, lost the cause, in a moment of vexation he declared, in the presence of a friend, that he would quit the bar, go home, take orders, and enter the pulpit. You had better not do that replied his friend; for, if you do, Mr. Pendleton will go home, take orders, and enter the pulpit too, and beat you there. Mr. Pendleton was far less learned than Mr. Wythe, but he possessed more versatile talents, was an accomplished gentleman, and better adapted to success in general society and in the busy world. Although not so finished a scholar as Mr. Wythe, he had a much more pleasing style of composition. The high consideration in which
</blockquote>

===Page xxxv===
<blockquote>
Messrs. Pendleton and Wythe were both held was often evinced by the distinguished honors and eminent offices which they received from their parent state. It was particularly exhibited in the organization of the Convention which adopted the Constitution of the United States, when Mr. Pendleton was appointed to preside over the body, and Mr. Wythe to preside over the Committee of the Whole, which he did during, I believe, the entire sitting of the Convention, the Constitution having been considered and discussed in Committee of the Whole.

Mr. Wythe's personal appearance and his personal habits were plain, simple and unostentatious. His countenance was full of blandness and benevolence, and I think he made, in his salutations of others, the most graceful bow that I ever witnessed. A little bent by age, he generally wore a grey coating, and when walking carried a cane. Even at this moment, after the lapse of more than half a century since I last saw him, his image is distinctly engraved on my mind. During my whole acquaintance with him he constantly abstained from the use of all animal food.

It is painful and melancholy to reflect that a man so pure, so upright, so virtuous, so learned, so distinguished and beloved, should have met with an unnatural death. The event did not occur until several years after I emigrated from Richmond to the State of Kentucky, and, of course, I am not able from personal knowledge to relate any of the circumstances which attended it. Of these, however, I obtained such authentic information as to leave no doubt in my mind as to the manner of its occurrence. He had a grand nephew, a youth scarcely I believe of mature age, to whom, by his last will and testament, written by me, upon his dictation, before my departure from Richmond, after emancipating his slaves, he devised the greater part of his estate. That youth poisoned him, and others,—black members of his household, by putting arsenic into a pot in which coffee was preparing for breakfast. The paper which had contained the arsenic was found on the floor of the kitchen. The coffee, having been drank by the Chancellor and his servants, the
</blockquote>

===Page xxxvi===
<blockquote>
poison developed its usual effects. The Chancellor lived long enough to send for his neighbor, [[William DuVal|Major William Duval]], and got him to write another will for him, disinheriting the ungrateful and guilty grand nephew, and making other dispositions of his estate. An old negro woman, his cook, also died under the operation of the poison, but I believe that his other servants recovered. After the Chancellor's death it was discovered that the atrocious author of it had also forged bank checks in the name of his great uncle, and he was subsequently, I understood, prosecuted for the forgery, convicted and sentenced to the penitentiary; but whether that was the fact or not, can be ascertained by a resort to the records of the proper criminal courts in Richmond.

I have writen [''sic''] this hasty sketch, not as a memoir of the illustrious man of whom it treats, but for the purpose of contributing some materials, which may be wrought by more competent hands, into a biography more worthy of his great name and memory. I conclude it by an acknowledgement, demanded of me alike by justice and feelings of gratitude, that to no man was I more indebted, by his instructions, his advice, and his example, for the little intellectual improvement which I made, up to the period, when, in my twenty first year, I finally left the City of Richmond.

:::::::::::::::I am with great respect,

::::::::::::::::::::Your friend and obedient servant,

::::::::::::::::::::::::::::H. CLAY

MR. B. B. MINOR.
</blockquote>

===Page xxxvii===

:''Main article: [[Last Will and Testament]]''

<blockquote>
<center>'''MR. WYTHE'S WILL.'''</center>

"Contemplating that event, which one in the second year of his sixteenth lustrum may suppose to be fast approaching, at this time, the twentieth day of April in the third year of the nineteenth centurie since the christian epoch, when such is my health of bodie that vivere amem, and yet such my disposition of mind that, convinced of this truth, what Supreme Wisdom destinateth is best, obeam libens, i, George Wythe, of the citie of Richmond, declare what is hereinafter writen to be my testament, probablie the last: Appointing my friendlie neighbour William Duval executor, and desiring him to accept fifty pounds for his trouble in performing that office over a commission upon his disbursements and receipts inclusive, i devise to him the houses and ground in Richmond, which i bought of [[William Nelson]], and my stock in the funds, in trust, with the rents of one and interest of the other, to support my freed woman [[Lydia Brodnax]], and freed man Benjamin, and freed boy [[Michael Brown]], during the lives of the two former, and, after their deaths, in trust to the use of the said Michael Brown: and all the other estate to which i am and shall at the time of my death be intitled i devise to [[George Wythe Sweeney|George Wythe Sweney]] the grandson of my sister.

<center>GEORGE [L.S.] WYTHE"</center>

"I, who have hereunder written my name, this nineteenth day of January, in the sixth year of the before mentioned centurie, revoke so much of the preceding devise to George Wythe Sweney as is inconsistent with what followeth. The residuary estate devised to him is hereby charged with debts and demands. I give my books and small philosophical apparatus to [[Thomas Jefferson]], president of the United States of America: a legacie, considered abstractlie, perhaps not deserving a place in his musaeum, but, estimated by my good will to him, the most valuable to him of any thing which i have power to bestow. My stock in the funds before mentioned hath been changed into stock in the bank of Virginia. I devise the latter to the same uses, except as to Ben who is dead, as those to which the former was devoted. To the said Thomas Jefferson's* patronage I recommend the freed boy Michael Brown in my testament named, for whose maintenance, education or other benefit, as the said Thomas Jefferson shall direct, i will the said bank stock, or the value thereof, if it be changed again, to be disponed. And now,

<center><div style="font-size: 85%;">'GOOD LORD, most mercifull, let poenitence<br />Sincere to me restore lost innocence;</div></center>
</blockquote>

===Page xxxviii===
<blockquote>
<center><div style="font-size: 85%;">In wrath my grievous sins remember not;<br />My secret faults out of thy record blot;<br />That, after death's sleep, when i shall awake,<br />Of pure beatitude i may partake.'</div></center>

<div align="right">GEORGE WYTHE [SEAL.]"</div>

:::::::::::::::* ός
:::::::::::::::φίλος δ᾽ ἦν ἀνθρώποισι;
:::::::::::::::πάντας γὰρ φιλέεσκεν.*

"I will that Michael Brown have no more than one half my bank stock, and George Wythe Sweneney have the other immediatelie.

"I give to my friend Thomas Jefferson my silver cups and gold headed cane, and to my friend William Duval my silver ladle and table and teaspoons.

"If Michael die before his full age, i give what is devised to him to George Wythe Sweney. I give to Lydia Brodnax my fuel. This is to be part of my will and as it were written of the parchment inclosed with my name in two places.

<div align="right">GEORGE WYTHE [SEAL.]"</div>

24 of february 1806.

"In the name of God, Amen!

I George Wythe, of the city of Richmond, having heretofore made my last will on the 20th April, in the third year of the nineteenth century since the christian epoch, and a codicil thereto on the 19th day of January, in the sixth year of the aforesaid century, and another codicil on the 24th day of February 1806, do ordain and constitute the following to be a third codicil to my said will; hereby revoking the said wills and codicils in all the devises and legacies in them or either of them contained, relating to, or in any manner concerning George Wythe Sweney, the grandson of my sister; but I confirm the said will and codicils in all other parts, except as to the devise and bequest to Michael Brown, in the said will mentioned, who, I am told, died this morning, and therefore they are void. And I do hereby devise and bequeath all the estate, which I have

<div style="font-size: 85%;">* [The character drawn by Homer (Iliad, lib. vi. v. 15,) of Axylus, and which is thus translated by Mr. Munford:
:::But Diomed, the great in battle, slew
:::Axylus, Teuthras' son, who, blessed with wealth,
:::In fair Arisba's beauteous town abode;
:::To all men justly dear, for all he loved," &c.—Ed.]</div>
</blockquote>

===Page xxxix===
<blockquote>
devised or bequeathed to the said George Wythe Sweney or for his use, in the said will or codicils, and all the interest and estate, which I have therein devised or bequeathed in trust for, or to the use of the said Michael Brown, to the brothers and sisters of the said George Wythe Sweney, the grandchildren of my said sister, to be equally divided among them, share and share alike. In testimony whereof I have hereunto subscribed my name and affixed my seal, this first day of June, in the year 1806.

<div align="right">G. WYTHE [SEAL.]</div>

"Signed, sealed, published and declared by the said George Wythe the testator as and for his last will and testament in our presence ; and at his desire we have hereunto subscribed our names as witnesses, in his presence and in the presence of each other.

"(The interlineations of the words, "and another codicil on the 24th of February 1806," and of the words "will and codicils" and "grand" being first made; and the whole being distinctly read to the testator, before the execution of this codicil.)

<blockquote>
EDM. RANDOLPH,<br />WM. PRICE,<br />SAMUEL GREENHOW,<br />SAM'L MCCRAW."
</blockquote>

"The foregoing will and first codicil are written upon parchment by the testator. The last codicil is believed to be in the handwriting of Edm. Randolph, Esq., and not that of Mr. Duval, as Mr. Clay supposed. The envelope has upon it the following endorsement, apparently in the handwriting of the testator:

<center>
"To William Duval,<br />to be opened when G. Wythe shall<br />cease to breathe, unless by him required<br />before that event. Χαιρε!"<ref>Χαιρε: Greek, "Rejoice!"</ref>
</center>

<center>
<div style="font-size: 85%;">[From the Richmond Enquirer of June 10th, 1806.]</div>
''"'Full of years; and full of honour.'"''
</center>

"On Sunday morning the 8th inst., departed this life, the venerable chancellor of the Richmond district, GEORGE WYTHE. Over the suspected causes of his death, let us for a moment draw the veil. Every situation in life has its rights and its duties. Let us therefore respect the rights of the accused.
</blockquote>

===Page xxxx===
<blockquote>
"But of the deep, the solemn, the almost unparalleled impression produced by his death, we may be permitted to speak.—Let the anxious solicitude manifested for his recovery; let that sorrow which buries beneath it all political distinction; let the solemn and lengthened procession which attended him to his grave; declare the loss which we have sustained. Kings may require mausoleums to consecrate their memory; saints may claim the privilege of canonization; but the venerable GEORGE WYTHE needs no other monument than the services rendered to his country, and the universal sorrow which that country sheds over his grave.

"When the news of his death was made public, the bells of the city were set a tolling: the executive council assembled in their chamber, and determined on the following order of procession. It was published for the information of the citizens:

<div align="right">'COUNCIL CHAMBER, June 8th, 1806.</div>
<center>ORDER OF PROCESSION,<br />Preparatory to the interment of<br />GEORGE WYTHE,<br />Late Judge of the High Court of Chancery for the Richmond<br />District.</center>

A Funeral Oration will be delivered at the Capitol, in the Hall of the House of Delegates, to begin precisely at 4 o'clock, P. M. on to-morrow; after which the Procession will commence in the following order:

<center>1. The Clergymen and Orator of the Day.<br />2. Corpse.<br />3. Physicians.<br />4. The Executor and Relations of the deceased.<br />5. The Judges.<br />6. Members of the Bar.<br />7. The Officers of the High Court of Chancery.<br />8. The Governor and Council.<br />9. Other Officers of Government.<br />10. The Mayor, Aldermen and Common Council of the City of Richmond.<br />11. C i t i z e n s .'</center>

"Need it be said, that the crowd which assembled in the capital was uncommonly numerous, and respectable? After the delivery of a funeral oration by Mr. Munford, a member of the executive council, the procession set out towards the church.—It is no disparagement to the virtues of the living, to assert, that there is not perhaps another man ''in'' Virginia, whom the same solemn procession would have attended to his grave."
</blockquote>

==See also==

*[[Biography of the Signers to the Declaration of Independence]]
*[[Henry Clay to B. B. Minor, 3 May 1851]]

==References==
<references />

==External links==

Read this book in [http://books.google.com/books?id=mostAQAAMAAJ&pg=PR11 Google Books].

[[Category:Biographies (Articles)]]
[[Category:PROOFED]]

Wythe Monument

2015-02-20T13:57:27Z

Jamorris01: /* Page 46 */

[[File:WytheMonument.jpg|thumb|right|400px|<p>Monument to mark George Wythe's burial at St. John's Episcopal Church, East Broad Street, Richmond, Virginia.</p><p>A smaller plaque at the base of the column was placed sometime after 2004 by [http://www.dsdi1776.com/signers-grave-recognition/ Descendants of the Signers of the Declaration of Independence, Inc.], to commemorate Wythe as a signer.</p>]]

After [[Death of George Wythe|George Wythe's death]] in 1806, the Virginia General Assembly voted to wear a "[[National Intelligencer, 15 December 1806|badge of mourning]]" for one month, as a sign of respect to Wythe's contributions to both the Commonwealth, and as a founder of the United States.<ref>''National Intelligencer, and Washington Advertiser'' (Washington, D.C.), 15 December 1806, 2; ''Journals of the Council of Virginia,'' vol. 27, 448. Cited in Imogene E. Brown, ''American Aristides: A Biography of George Wythe'' (Rutherford, NJ: Fairleigh Dickinson University Press, 1981), 301.</ref> The executor of [[Last Will and Testament|Wythe's will]], William DuVal, however, would have preferred that the legislature had "erected at the public Expence a plain Tomb Stone, to transmit to future ages the High Lines they entertained of his Talents, his Patriotism, and his inflexible Integrity — his was a rare Character, such an One as is scarcely to be met with in many Centuries."<ref>[[Jefferson-DuVal Correspondence#William DuVal to Thomas Jefferson, 10 December 1806|William DuVal to Thomas Jefferson, 10 December 1806]], [http://hdl.loc.gov/loc.mss/mtj.mtjbib016653 ''The Thomas Jefferson Papers,'']] Series 1, General Correspondence, 1651-1827, Library of Congress.</ref> Later efforts to procure a suitable monument for Wythe were reported in the [[Venerable Old Tree|Richmond ''Times'']] in 1894 and 1901, made by Judge Conway Robinson—one of Wythe's former students—and Congressman John Lamb.<ref>W.P.P., "[[Venerable Old Tree|A Venerable Old Tree]]," ''The Times'' (Richmond, VA), October 28, 1894, 9; "[[In Wythe's Memory]]," ''The Times'' (Richmond, VA), January 12, 1901, 4.</ref>

Following his state funeral in Richmond, Virginia, Wythe had been buried at the historic [http://historicstjohnschurch.org/ St. John's Church] without a headstone, and the exact location of his grave has been forgotten: as early as 1884, Wythe's namesake [[Chancellor Wythe's Death|George Wythe Munford wrote]], "There is no monument or other mark to designate the spot where his remains repose; but it is believed he was buried on the west side of the church, near the wall of that building."<ref>George Wythe Munford, [[Two Parsons|''The Two Parsons; Cupid's Sports; The Dream; and The Jewels of Virginia'']] (Richmond, Virginia: J.D.K. Sleight, 1884), 429.</ref> Indeed, at the time of his death in 1806, the [[Richmond Enquirer, 10 June 1806|Richmond ''Enquirer'']] commented that "the venerable George Wythe needs no other monument than the services rendered to his country, and the universal sorrow which that country sheds over his grave."<ref>[[Richmond Enquirer, 10 June 1806|''The Enquirer'' (Richmond, VA), June 10, 1806, 3.]]</ref>

An unmarked grave was not unusual at that time, even for such luminaries as signers of the [[Declaration of Independence]]. In October of 1899, Mary Mann Page Newton, chairman of the Landmark Committee for the Virginia Association for the Preservation of Antiquities, reported:

<blockquote>
Another important work to be done at St. John's is to place some monument on the unmarked grave of Chancellor George Wythe, a signer of the Declaration of Independence, and one of our greatest jurists and purest statesmen. The site of Judge Wythe's home, at the southeast corner of Grace and Fifth streets, now occupied by the residence of Mr. Beverley B. Munford, should also be marked...[.]

Though the glory of the signers of the Declaration of Independence is also Revolutionary, it would doubtless come with perfect propriety within the scope of our own work to mark the places where they sleep. As I have said, George Wythe's grave in St. John's churchyard, has no monument, and it is believed that this is also the case with the last earthly resting-places of [[wikipedia:Benjamin Harrison|Benjamin Harrison]], [[wikipedia:Richard Henry Lee|Richard Henry]] and [[wikipedia:Francis Lightfoot Lee|Francis Lightfoot Lee]], and [[wikipedia:Carter Braxton|Carter Braxton]]. <ref>"[[Media:YeareBookeOfTheAssociationForThePreservationOfVirginiaAntiquities1898-1899.pdf|Report of Landmark Committee]]," ''Yearbook of the Virginia Association for the Preservation of Antiquities, 1898 and 1899,'' 29-30.</ref>
</blockquote>

In 1920, the Virginia Bar Association partnered with the Sons of the Revolution in State of Virginia, the Virginia Society of the Sons of the American Revolution, and the Virginia Daughters of the American Revolution to begin the process of obtaining and placing a "suitable marker" near the presumed location of Wythe's grave. The final monument was dedicated on May 24, 1922.

[[File:WytheMonumentDetail.jpg|thumb|right|400px|border|Detail of bronze plaque inscription on the Wythe monument, featuring the [[Seal of the Commonwealth of Virginia]], designed by Wythe in 1776.]]

==Annual Reports of the Virginia State Bar Association, 1920==

At the 1920 meeting of the Virginia State Bar Association, John B. Minor, Secretary-Treasurer, read a letter from Arthur B. Clarke, President of the Virginia Society of the Sons of the American Revolution, concerning a local effort to erect a suitable monument for Wythe's grave:<ref>Virginia State Bar Association, [[Media:ReportOfTheThirty-FirstAnnualMeetingOfTheVirginiaStateBarAssociation1920.pdf|''Proceedings of the Annual Meeting'']] 32 (1920), 15-16.</ref>

<blockquote>
Secretary Minor: Mr. President, I have two communications, one of which is a communication from the Virginia Society of the Sons of the American Revolution in, relation to some marker for the grave of George Wythe, which I will read:

<div align="right">
616 AMERICAN N. B. BLDG., RICHMOND, VA.,<br />''May'' 7, 1920.
</div>

<blockquote>
HON. JOHN B. MINOR, ''Prest. Bar Association,''

: 506 Mutual Building, Richmond, Va.

''My dear Mr. Minor:''

Wide attention has been called to the neglected graves, in several states, of the Signers of the Declaration of Independence, and a movement is being made to have all such graves marked by stones.

One such, grave is in this city.

Chancellor George Wythe, one of the Signers, one of the most distinguished lawyers of Virginia, a great expounder and great teacher of the law, is buried in old St. John's graveyard on Church Hill, just at the door of the old church. No stone marks the resting place of this man to whom this state owes so much.

Comment on his life and deeds needs not be made in this letter. His accomplishments are known to all members of the Bar Association or should be.

The patriotic societies of this city have appointed committees to take up the matter of marking this grave, and I am sure your Association need only to have its attention called to the matter to approve of the movement, and likewise appoint a committee to co-operate with representatives of other organizations.

Trusting you will bring the subject to the attention of your Association, with desired results, I am

:::::::::::::::Yours very truly,
::::::::::::::::::::ARTHUR B. CLARKE,
::::::::::::::::::::''Prest. Va. So. S. A. R.''
</blockquote>

I move that this communication be referred to the Committee on Resolutions, with instructions to report a suitable resolution in accordance with the request.

Seconded and adopted.
</blockquote>

The next day, the Bar Association's Committee on Resolutions produced the following:<ref>''Proceedings,'' 1920, 19.</ref>

<blockquote>
''Be it Resolved,'' That the Virginia State Bar Association heartily approves the movement inaugurated by the patriotic organizations of the city of Richmond to mark the grave of Chancellor George Wythe, and directs the President of the Association to appoint a committee to co-operate in the accomplishment of this purpose with the committees of other organizations.
</blockquote>

==Annual Reports of the Virginia State Bar Association, 1921==

The proceedings of the 1921 meeting of the Virginia Bar Association includes the names of the members appointed to the "Special Committee to Aid in Securing Suitable Marker for Grave of George Wythe": Robert M. Hughes, of Norfolk; Eppa Hunton, Jr., of Richmond; and Eugene C. Massie of Richmond.<ref>Virginia State Bar Assocation, ''[[Media:ProceedingsOfTheThirty-SecondAnnualMeetingOfTheVirginiaStateBarAssociation1921.pdf|Proceedings of the Annual Meeting]],'' 1921, 99.</ref> Hughes had previously served as a member of the committee that placed a [[Wythe Tablet|memorial tablet]] dedicated to Wythe in the chapel of the Wren Building at the College of William & Mary, in 1893.

==Sons of the Revolution in Virginia, April 1922==
[[File:MonumentToChancellorGeorgeWythe.jpg|thumb|left|400px|border|Photograph of the monument to Wythe which appeared in the [[Englishman's Tribute to Chancellor Wythe|''Sons of the Revolution in State of Virginia Quarterly Magazine'']] in April, 1922.]]

In 1922, in the April issue of ''[[Englishman's Tribute to Chancellor Wythe|Sons of the Revolution in State of Virginia Quarterly Magazine]],'' there appeared a photograph of the as-yet-unveiled "Monument to Chancellor George Wythe,"<ref>[[Englishman's Tribute to Chancellor Wythe|''Sons of the Revolution in State of Virginia Quarterly Magazine'']] (April, 1922), 38.</ref> captioned:

<center>
The First Virginia Signer of the Declaration of Independence<br />First Professor of Law in the United States<br />Teacher at William and Mary College of [[wikipedia:Edmund Randolph|Randolph]], [[Thomas Jefferson|Jefferson]]<br />and [[John Marshall|Marshall]]

This monument will shortly be unveiled in historic St. John's Church<br />Yard, Richmond, Va., within a stone's throw of where<br />[[wikipedia:Patrick Henry|Patrick Henry]] made his famous speech.
</center>

==Annual Reports of the Virginia State Bar Association, 1922==

Following the unveiling of the monument to Wythe on May 24, 1922, two reports concerning the event were presented to the Virginia State Bar Association, as well as the text of the [[#Page 46|memorial address]] delivered by George Bryan:<ref>Virginia State Bar Association, ''[[Media:ProceedingsOfTheThirty-ThirdAnnualMeetingOfTheVirginiaStateBarAssociation1922.pdf|Proceedings of the Annual Meeting]],'' 1922, 40-48.</ref>

===Page 40===

<blockquote>
<center>
REPORT OF COMMITTEE ON LIBRARY AND LEGAL<br />LITERATURE.
</center>

''To the Virginia State Bar Association:''

Your Committee on Library and Legal Education would respectfully report that up to this time the Library of the State Bar Association is mainly ''in gremeo legis;'' depending in large measure upon the law libraries of the State; and that the legal education referred to in the title is too often meagre and jejune, but that with the record of past teachers in the profession whose names are as lights in the darkness, and whose works do follow them, there is set before the profession such a standard of exalted. excellence as should make every member of our Association proud of that record and jealous for the reputation of our profession.

The names of Wythe, Tucker, Brockenbrough and Minor stand forth pre-eminent in the annals of legal education. From these great teachers, as the fountains, have flowed those streams of learning and wisdom which have enriched and fructified the labors of many who never drank at the source, but who have known the sweet influence of those mighty springs as they flowed into the channels and irrigated the barren fields of strife and contention.

Within a month past in the church-yard of St. John's, Richmond, there has been put up a notable monument to Chancellor Wythe. Upon the bronze tablet set into the granite is the statement of his name, birth, life's work and death; that he was the first professor of law in the United States-the teacher of Randolph, Jefferson and Marshall.

This monument has been erected by members of patriotic societies and of the Bar Association, and by individual admirers of the great teacher, law-giver and law-maker; for let it be remembered that it was he who was the first of the Virginia signers of the Declaration of Independence. In a paper read before the Marshall-Wythe Assembly of William and Mary College, the Chairman of your Committee wrote:
</blockquote>

===Page 41===

<blockquote>
"We can well imagine how that distinguished group of Virginians respected the character of George Wythe. An examination of their signature shows that, on the immortal Declaration, his name stands first among them as already mentioned; above that of Thomas Jefferson, the author of the paper, himself; above that of Richard Henry Lee, the "Cicero of the Revolution"; above that of Thomas Nelson, Jr., who had brought from Virginia the resolutions of the Virginia Convention directing Virginia's representatives in Congress to declare for independence. I love to think that the Virginia delegation stood back to yield precedent to the great man whom they and the people of Virginia so greatly loved and revered."

If we lack law libraries, we have had great ''law teachers'' to supply that lack.

::::::::::::::::::::Respectfully submitted,

:::::::::::::::::::::::::ROSEWELL PAGE,

::::::::::::::::::::::::::::::Chairman

June 6, 1922.

<center>
REPORT OF SPECIAL COMMITTEE ON MEMORIAL<br />TO GEORGE WYTHE.
</center>

To the Virginia State Bar Association:

It is a pleasure to report that on May 24, 1922, a suitable monument was unveiled at the grave of Chancellor George Wythe in the church-yard of St. John's Episcopal Church, on Church Hill, in the City of Richmond. The monument is of granite with a bronze tablet and memorial inscription surmounted by the Great Seal of the Commonwealth of Virginia. This Great Seal was adopted by the Convention of 1776, having been devised by a committee consisting of Richard Henry Lee, George Mason, George Wythe, Robert C. Nicholas, John Page and Arthur Lee. Some have ascribed its classic form to George Mason, who reported it to the Convention; but in Girardin's continuation of Burk's "History of Virginia," it

</blockquote>

===Page 42===

<blockquote>
is stated that Wythe was the originator. Dr. Lyon G. Tyler, an authority in Virginia history, thinks Girardin's account is correct, and says: "As Girardin wrote under the supervision of Jefferson, who was keenly alive to all such matters, there can be no reason to doubt the truth of his statement." The records show—and there is no dispute about the fact—that George Wythe and John Page were appointed to superintend engraving of the Seal; and this was finally accomplished under their direction, by an artist in Paris, after unavailing efforts had been made to have the work properly done in America. To sustain his opinion that the Great Seal was originated by George Wythe, Dr. Tyler says:

<blockquote>
"Moreover, Wythe was one of the two entrusted with the execution of the seal, and must have penned the words describing it, which have been admired for their clearness and precision: 'Virtue, the genius of the Commonwealth, dressed like an Amazon, resting on a spear with one hand, and holding a sword in the other, and treading on Tyranny, represented by a man prostrate, a crown fallen from his head, a broken chain in his left hand, and a scourge in his right. In the exergue the word VIRGINIA over the head of Virtue, and underneath, the words ''Sic Semper Tyrannis.'' On the reverse a group: LIBERTAS, with her wand and ''pileus;'' on one side of her, CERES, with the cornucopia in one hand and an ear of wheat in the other; on the other side, AETERNITAS, with the globe and phoenix.'"
</blockquote>

In commenting upon this classic conception, Dr. Tyler says:

<blockquote>
"Severe in his republicanism, Wythe, like other Virginians of the Revolution, had a scorn for 'the aristocrat,' and found his ideals in the Roman and Grecian Republics. Caesar, Brutus and Cicero were his names to conjure with, and his faith in the ability of man for self-government was stamped upon all his official action. While Massachusetts, Connecticut, Rhode Island, New Hamp-
</blockquote>
</blockquote>

===Page 43===

<blockquote>
<blockquote>
shire, along with New York Pennsylvania, New Jersey and Maryland, and even the United States, clung to the old ideas of English heraldry and fashioned their seals of State on the principle of a coat of arms, Virginia, under the direction of Wythe, chose a purely classic design. She alone of the thirteen original States has no shield on which to emblazon in dazzling colors and lustrous metal the memory of feudal services, of the rich man's power and the poor man's thraldom; but the genius of her seal was made by Wythe, the Roman figure of Virtue, clad as an Amazon, holding in one hand the spear of victory and in the other the sword of authority, and sternly republican in her motto of ''Sic Semper Tyrannis.''"
</blockquote>

Beneath the Great Seal, which thus has found such fitting place upon the monument to George Wythe, the following inscription appears:

<center>
THIS TABLET IS DEDICATED<br />TO MARK THE SITE WHERE LIE<br />THE MORTAL REMAINS OF<br />GEORGE WYTHE.<br />BORN 1726—DIED 1806.<br />JURIST AND STATESMAN,<br />TEACHER OF RANDOLPH,<br />JEFFERSON AND MARSHALL,<br />FIRST PROFESSOR OF LAW<br />IN THE UNITED STATES,<br />FIRST VIRGINIA SIGNER OF THE<br />DECLARATION OF INDEPENDENCE.<br />ERECTED BY<br />PATRIOTIC CITIZENS OF VIRGINIA,<br />A. D. 1922.
</center>

This monument was erected at a cost of $785.00, through the co-operation of the Virginia Society of the Sons of the Revolution, the Sons of the American Revolution, the Association for the Preservation of Virginia Antiquities, and the Virginia
</blockquote>

===Page 44===

<blockquote>
State Bar Association. The [[#Page 46|memorial address]] was delivered by Mr. George Bryan, a distinguished member of this Association, and is with his permission printed in full as an appendix to this report.

It was to George Wythe that Patrick Henry alluded when he said in the Convention of 1775:

<blockquote>
"Shall I light up my feeble taper before the brightness of his noontide sun? It were to compare the dull dewdrop of the morning with the intrinsic beauties of the diamond."<ref>Daniel Call, "[[Biographical Sketch of the Judges]]," in ''Reports of Cases Argued and Decided in the Court of Appeals of Virginia,'' 2nd ed. (Richmond, VA: Robert I. Smith, 1833), 4:xiv.</ref>
</blockquote>

He was, as his monument now proclaims, "The first professor of law in the United States," and it might have been added, "The second in the English-speaking world," as Dr. Tyler has pointed out—[[wikipedia:William Blackstone|Sir William Blackstone]], who filled the Vinerian chair of law at Oxford in 1758, being the first.

Not only was he the preceptor of Randolph, Jefferson and Marshall, but also [[wikipedia:James Monroe|James Monroe]], [[St. George Tucker]], [[wikipedia:Spencer Roane|Spencer Roane]], James Breckenridge, [[wikipedia:John Coalter|John Coalter]], [[wikipedia:Littleton Waller Tazewell|Littleton Waller Tazewell]], [[William Munford]], James Innis, [[wikipedia:George Nicholas|George Nicholas]] and [[wikipedia:Henry Clay|Henry Clay]]. [[Henry Clay to B. B. Minor, 3 May 1851|Mr. Clay said]] that "to no man was he more indebted, by his instructions, his advice, and his example, for the intellectual improvement which he made up to the period when in his twenty-first year he finally left the City of Richmond for Kentucky."<ref>"[[Henry Clay to B. B. Minor, 3 May 1851|Letter from Hon. Henry Clay to B.B. Minor, Esq.]]," ''Virginia Historical Register, and Literary Companion'' 5, no. 3 (July 1852), 162-167. Reprinted in B.B. Minor, ed., "[[Memoir of the Author]]," in ''Decisions of Cases In Virginia, By the High Court Chancery, with Remarks Upon Decrees By the Court of Appeals, Reversing Some of Those Decisions,'' by George Wythe (Richmond, Virginia: J.W. Randolph, 1852), xxxii-xxxvi.</ref>

In October, 1777, in the second year of the Commonwealth, an act was passed for establishing a High Court of Chancery. The first chancellors were Edmund Pendleton, George Wythe and Robert Carter Nicholas. It was by virtue of this office that George Wythe became a member of the Supreme Court of Appeals of Virginia, where in 1782 he delivered the celebrated opinion in "[[Commonwealth v. Caton|Commonwealth vs. Caton]]," in the course of which he said:

<blockquote>
"Nay more, if the whole Legislature, an event to be deprecated, should attempt to overleap the bounds prescribed to them by the people, I, in administering the
</blockquote>
</blockquote>

===Page 45===

<blockquote>
<blockquote>
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.'"
</blockquote>

In 1788 the number of judges in the Court of High Chancery was reduced to one, and from that time until 1801 George Wythe was the sole Chancellor of the Commonwealth, with jurisdiction over the whole State.

Manifestly it was impossible to give in an epitaph even a summary of the achievements of a life so full of patriotic service, political honors and professional labors. It is enough that a reproach has been finally removed from the generations that have followed the noble Virginian by the erection of a simple monument to his memory. Let us leave him with the [[Notes for the Biography of George Wythe|words of Thomas Jefferson]] ringing in our ears:

<blockquote>
"No man ever left behind him a character more venerated than George Wythe. 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, without the avarice of the Roman; for a more disinterested person never lived. Temperance and regularity in all his habits gave him general good health, and his unaffected modesty and suavity of manners endeared him to every one. He was of easy elocution, his language chaste, methodical in the arrangement of his matter, learned and logical in the use of it, and of great urbanity in debate; not quick of apprehension, but, with a little time, profound in penetration and sound in conclusion. In his philosophy he was firm, and neither troubling, nor perhaps trusting any one with his religious creed, he left the world to the conclusion that that religion must be good which could produce a life of such exemplary virtue.

"His stature was of the middle size, well formed and proportioned, and the features of his face were manly,
</blockquote>
</blockquote>

===Page 46===

<blockquote>
<blockquote>
comely and engaging. Such was George Wythe, the honor of his own time and the model of future times."<ref>Thomas Jefferson, [[Notes for the Biography of George Wythe]], August 31, 1820.</ref>
</blockquote>

::::::::::::::::::::E. C. Massie,
::::::::::::::::::::For the Committee.

<center>
GEORGE WYTHE—PIONEER.
</center>

<center>
''Memorial Address at the Unveiling of the Monument Erected<br />at His Grave in St. John's Churchyard,<br />Richmond, Va., May 14, 1922.''<ref>The date of "May 14" is probably a typo, since the unveiling is stated to have been on May 24th in the same document and others.</ref>
</center>

<center>
By George Bryan, Esq., of Richmond.
</center>

Commonwealths, like individuals, are sluggish. They call it conservatism, but this is an excuse, not a reason. The tendency is towards inertia—towards the line of least resistance, but inertia means stagnation and ingrowing and consequent disintegration. If men and nations would live, they must resist. When the hour strikes, the pioneer comes to the front, announces his mission and begins his work.

In 1726 there was born in Virginia one whose memory we honor to-day—one who, upon reaching man's estate, looked about him and saw a large work to be done, a great wilderness to be conquered and paths blazed through it upon which men and women could walk to broader freedom, to real self-government and to purer ideals. Thomas Jefferson said of him that he was "the honor of his own and the model of future times"—that he truly might be called, "devoted as he was to liberty and the national and equal rights of man, the Cato of his country, without the avarice of the Roman."

An honored historian of this day and community, Dr. Samuel C. Mitchell has written of him: "In three several instances Wythe was a forerunner. As early as 1764 he wrote Virginia's first [[Remonstrance to the House of Commons|remonstrance to the House of Commons]] against the Stamp Act, taking so advanced a position in regard to that ominous measure as to alarm his fellow-Burgesses. He was perhaps the first judge to lay down, in 1782, the cardinal principle that a court can annul a statute deemed repugnant to the Constitution, thus anticipating by a score of years the classic
</blockquote>

===Page 47===

<blockquote>
decision of his great pupil, John Marshall, in ''Marbury v., Madison.'' He was an ardent advocate of the emancipation of slaves, actually freeing his own and making provision for them in his will. He was the first professor of law in the United States. In 1785 he wrote to John Adams, 'I have again settled in Williamsburg, assisting as professor of law and police in the University there, to form such characters as may he fit to succeed those which have been ornamental and useful in the national councils of America.' Either in his law office or as professor in William and Mary, he was the teacher of Jefferson, Marshall, Monroe, Clay and scores of others, only less prominent than these."

In the year 1806, at the age of eighty, he rested from his labors, but his works followed him. What are the lessons of such a life? They are many, but we have time to study only one. He was essentially a progressive of his day and generation. He was restless, uneasy, in the presence of oppression in any form, but, better than all else, he did not content himself, as do so many of us to-day, with expressing his dissatisfaction in a timid and formal way and returning at once to the farm or the merchandise or the study. He cried out against the Stamp Act, says Dr. Mitchell, so loud as to alarm his fellow-Burgesses—but, with a soul consumed with a passion for liberty, he cried the louder and tried to shame those conservative Burgesses into taking part in the work of rescuing the colony from the conditions which caused their alarm. He was a pioneer, a pathfinder, a forerunner—and his name shall ever be among the immortal ones of mankind.

The members of these patriotic societies honor themselves today by this tribute to the memory of "one of the simple, great ones gone"—though I cannot bring myself to add, "forever and ever by." I bring you this word of cheer—that I believe there are to-day in our midst men and women who, like George Wythe, can differentiate between a genuine and a spurious conservatism, who, confronted by entrenched oppression and evil in whatever form, will not be deterred by expressions of alarm, but will cry out yet the louder for a sane and substantial liberty—freedom from the domination of the dollar, of
</blockquote>

===Page 48===

<blockquote>
mob, of the dogma—the only liberty under which mankind can be free indeed.

In George Wythe liberty found a worthy champion. He was a State-builder—a nation-builder—and we to-day honor the memory of a great constructive force in this Republic.
</blockquote>

==Proceedings of the Virginia State Conference of the Daughters of the American Revolution, October 1922==

Stated in the "Report of of State Historian" given by Mrs. Julia Little Pierce, the Commonwealth Chapter of the Daughters of the American Revolution reports the following activity:<ref>[http://books.google.com/books?id=wuYWAAAAYAAJ&pg=RA7-PA59 ''Proceedings of the Twenty-Sixth Virginia State Conference of the Daughters of the American Revolution,''] October 11-13, 1922 (Charlottesville, VA: Surber-Arundale), 59-60.</ref>

===Page 59===

<blockquote>
On Revolutionary Day, May 24th, these societies [the Sons of the Revolution in State of Virginia, and the Sons of the American Revolution] and the William Byrd Chapter joined with us in services in old St. John's Church to commemorate the birthday of Patrick Henry and to unveil a tablet to George Wythe, the great Chancellor, and one of the Virginia Signers of the Declaration of Independence. Rev. Hugh Sublett conducted the ceremonies and Governor Trinkle, Dr. Freeman and Mr. George Bryan spoke. Passing out to the churchyard, a wreath was laid on the tablet by the Regent of the Chancellor Wythe Chapter.
</blockquote>

The Chancellor Wythe Chapter also reports:

<blockquote>
''Chancellor Wythe:'' This Chapter was organized November 30, 1921, by Mrs. Manly B. Ramos with the State Regent, Dr. Barrett, present.

Several historical papers have been given at Chapter meetings and
</blockquote>

===Page 60===

<blockquote>
we attended the unveiling of the tablet to George Wythe in the churchyard of historic St. John's Church and placed a wreath of laurel and roses at the base of the monument in memory of the distinguished man for whom our Chapter was named.
</blockquote>

==References==
<references />

[[Category:Memorials]]
[[Category:Monuments]]

Notes for the Biography of George Wythe

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Jamorris01: /* Page 2 */

<big>''No man ever left behind him a character more venerated than G. Wythe.''</big> — Thomas Jefferson

On August 19, 1820, [[Jefferson-Sanderson Correspondence|John Sanderson wrote to Thomas Jefferson]] requesting biographical information regarding George Wythe, for his ''[[Biography of the Signers to the Declaration of Independence]]'' (1823). What follows is a transcription of the enclosure in Jefferson's response to Sanderson, dated August 31, 1820. Some of the information concerning Wythe is incorrect—for example, Wythe was most likely born in 1726, not 1727 or 1728;<ref>Thomas Alonso Dill, ''George Wythe: Teacher of Liberty,'' (Williamsburg, Virginia: Virginia Independence Bicentennial Commission, 1979), 3.</ref> he served as a legal apprentice to his uncle, Stephen Dewey, and was a junior partner of sorts to Zachary Lewis, not his pupil or apprentice;<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), 43-45.</ref> and Wythe was appointed to the High Court of Chancery in 1778, not 1777.<ref>Wythe Holt, "George Wythe: Early Modern Judge," 58 ''Alabama Law Review'' (2007), 1011.</ref> Despite these inaccuracies, Jefferson's biographical notes provide valuable insight into Wythe's reputation in his own time and clearly attest to the affection and regard which the former president still held for his mentor and friend fourteen years after Wythe's death.

== Enclosure text, 31 August 1820 ==
=== Page 1 ===
[[File:JeffersonBiographicalNotesp1.jpg|right|thumb|200px|"Notes for the Biography of George Wythe." Image from the [http://hdl.loc.gov/loc.mss/mtj.mtjbib023877 Library of Congress,] ''The Thomas Jefferson Papers.'']]

<blockquote>
<center>
Notes for the biography of George Wythe
</center>

George Wythe was born about the year 1727. or 1728. of a respectable family in the county of Elizabeth city on the shores of the Chesapeak.

he inherited from his father a fortune sufficient for independence & ease.

he had not the benefit of a regular education in the schools, but acquired a good one of himself, and without assistance; insomuch as to become the best Latin and Greek scholar in the state. it is said that while reading the Greek testament, his mother held an English one to aid him in rendering the Greek text conformably with that. he also acquired by his own reading a good knowledge of mathematics, of natural and moral philosophy.

he engaged in the study of the law under the direction of a mr Lewis of that profession, and went early to the bar of the General Court, then occupied by men of great ability, learnin, & dignity in their profession.

he soon became eminent among them, and, in process of time, the first at the bar, taking into consideration his superior learning, correct elocution and logical style of reasoning. for in pleading he never indulged himself with an useless or declamatory thought or word; and became as distinguished by correctness and purity of conduct in his profession, as he was by his industry & fidelity to those who employed him.

he was early elected to the House of representatives, then called the House of Burgesses, and continued in it until the revolution. on the first dawn of that, instead of higgling on halfway principles as others did who feared to follow their reason, he took his stand on the solid ground that the only link of political union between us and Great Britain was the identity of our Executive; that that nation and its parliament had no more authority over us than we had over them, and that we were coordinate nations with Great Britain and Hanover.
</blockquote>

===Page 2===
[[File:JeffersonBiographicalNotesp2.jpg|left|thumb|200px|<p>"Biographical Notes on George Wythe" Image from the [http://hdl.loc.gov/loc.mss/mtj.mtjbib023877 Library of Congress,] ''The Thomas Jefferson Papers.'']</p>]]

<blockquote>
in 1774. he was a member of a committee of the H. of Burgesses, appointed to prepare a Petition to the king, Memorial to the H. of Lords, and a [[Remonstrance to the House of Commons|Remonstrance to the H. of Commons]] on the subject of the proposed stamp act. he was made draughstman of the last, and, following his own principles, he so far overwent, the timid hesitations of his colleagues that his draught was subjected by them to material modifications. and, when the famous resolutions of mr Henry, in 1775. were proposed, it was not on any difference of principle that they were opposed by Wythe, Randolph, Pendleton, Nicholas, Bland and other worthies, who had long been the habitual leaders of the House; but because those papers of the preceding session had already expressed the same sentiments and assertions of right, and that an answer to them was yet to be expected.

In Aug. 1775. he was appointed a member of Congress, and in 1776. signed the Declaration of Independence, of which he had, in debate, been an eminent supporter. and subsequently in the same year he was appointed, by the legislature of Virginia, one of a Committee to revise the laws of the state, as well of British, as of colonial enactment, and to prepare bills for reenacting them with such alterations as the change in the form and principles of the government and other circumstances required: and of this work he executed the period commencing with the revolution in England, and ending with the establishment of the new government here; excepting the Acts for regulating descents for religious freedom, and for proportioning crimes & punishments.

In 1777. he was chosen Speaker of the H. of Delegates, being of distinguished learning in Parliamentary law and proceedings; and towards the end of the same year he was appointed one of three Chancellors
</blockquote>

=== Page 3 ===
[[File:JeffersonBiographicalNotesp3.jpg|right|thumb|200px|<p>"Biographical Notes on George Wythe" Image from the [http://hdl.loc.gov/loc.mss/mtj.mtjbib023877 Library of Congress,] ''The Thomas Jefferson Papers.'']</p>]]

<blockquote>
to whom that department of the Judiciary was confided on the first organisation of the new government. on a subsequent change of the form of that court, he was appointed sole Chancellor in which office he continued to act until his death which happened in June 1806. about the 78th. or 79th. year of his age.

Mr. Wythe had been twice married, first, I believe to a daughter of the mr Lewis with whom he had studied law: and afterwards to a Miss Taliaferro, of a wealthy and respectable family, in the neighborhood of Williamsburg, by neither of whom did he leave issue.

No man ever left behind him a character more venerated than G. Wythe. 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, without the avarice of the Roman; for a more disinterested person never lived. temperance and regularity in all his habits gave him general good health, and his unaffected modesty and suavity of manner endeared him to every one.

he was of easy elocution, his language chaste, methodical in the arrangement of his matter, learned and logical in the use of it, and of great urbanity in debate, not quick of apprehension, but with a little time profound in penetration; and sound in conclusion. in his philosophy he was firm, and neither troubling, nor perhaps trusting any one with his religious creed, he left to the world the conclusion that that religion must be good which could produce a life of such exemplary virtue.

his stature was of the middle size, well formed and proportioned and the features of his face manly, comely and engaging. Such was George Wythe, the honor of his own, and model of future times.
</blockquote>

==See also==

*[[Biography of the Signers to the Declaration of Independence]]
*[[Jefferson-Sanderson Correspondence]]

==References==
<references />

==External links==

*[http://rotunda.upress.virginia.edu/founders/default.xqy?keys=FOEA-print-04-02-02-1484 Notes for the Biography of George Wythe,] Founders Early Access, Rotunda Press.

[[Category:Biographies]]
[[Category:Letters about Wythe]]
[[Category:PROOFED]]

Genesis and Birth of the Federal Constitution

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{{DISPLAYTITLE:''Genesis and Birth of the Federal Constitution''}}
[[File:ChandlerGenesisAndBirth1924.jpg|thumb|right|300px|Title page from ''Genesis and Birth of the Federal Constitution'', edited by J.A.C. Chandler (New York: Macmillan, 1924).]]
"[[Media:PageGeorgeWythe1924.pdf|George Wythe]]," an address by Rosewell Page, forms an appendix in ''Genesis and Birth of the Federal Constitution'',<ref>Rosewell Page, "[[Media:PageGeorgeWythe1924.pdf|George Wythe]]," in ''Genesis and Birth of the Federal Constitution'', edited by J.A.C. Chandler (New York: Macmillan, 1924), 375-386.</ref> a collection of addresses and papers from the Marshall-Wythe School of Government and Citizenship at the College of William & Mary. The volume, edited by J.A.C. Chandler, President of the College at the time, represents addresses delivered in the college term beginning January 14, 1921.

== Chapter Text ==
===Page 375===
<blockquote><center>GEORGE WYTHE<br />
By Rosewell Page, Lt. D.</center>

THERE has just been erected in St. John's churchyard a [[Wythe Monument|granite monument]] whose bronze inset contains the statement of the birth and death of [[George Wythe]], the jurist and statesman, and that he was "The teacher of Randolph, Jefferson, and Marshall. First professor of law in the United States. First Virginia signer of the [[Declaration of Independence]]."

Although more than one hundred years have elapsed since the death of Chancellor Wythe, at his home near Fifth and Grace streets, Richmond, and this stone is the first marking of the place where his mortal remains were laid, not since Plato's time, perhaps, has any teacher been made more illustrious, judged by the performance of his disciples. Like so many other great men of Virginia his name and work, illustrious as they were, are almost forgotten.

He lived in a great age and measured up greatly to its requirements.

His grandfather, Thomas Wythe, had come from England in 1680 and settled in the county of Elizabeth City, where he married Anne Shepherd, daughter of John Shepherd. His father was [[Thomas Wythe]] of the same county for which he was a burgess from 1718 to 1726. His mother was [[Margaret Walker]], daughter of George Walker and granddaughter of [[George Keith|Rev. George Keith]]. By these strains he was associated with two of the most notable families in Virginia, from the former of which have come writers, explorers, and statesmen, and from the latter have come in</blockquote>

===Page 376===
<blockquote>our own time the late distinguished president of the Court of Appeals, Judge James Keith, and other notable Virginians of that name still residing in northern Virginia. There is a question, I am told, as to the Keith relationship as set out.

George Wythe was born in 1726 and belongs to that array of great men taught by their mothers. He attended William and Mary College and studied under his uncle-in-law, Stephen Dewey in Prince George County. He settled in Williamsburg, where he reached distinction at the bar and in 1754 was appointed attorney general by Governer Dinwiddie in the absence of Peyton Randolph. He succeeded Armistead Burwell as a burgess from the city of Williamsburg which he represented until 1756. He moved to Spottsylvania County for a short time and married [[Ann Lewis|Anne Lewis]], a daughter of [[Zachary Lewis]]. In 1758 he was in Williamsburg and served as a burgess for the college until 1761.

In that year he returned to Elizabeth City and was burgess for that county until 1769.

In 1765 he opposed Patrick Henry's resolution on the Stamp Act as being premature; though, in June, 1765, he was on the committee of correspondence and protested against the Stamp Act, and had drawn the [[Remonstrance to the House of Commons|remonstrance to the House of Commons]] which was adopted by the House Burgesses in 1764. "In the Norton correspondence (''Tyler's Quarterly'', Vol. III, No. 4, p. 289, April, 1922) Wythe is shown writing from Williamsburg in the summer of 1768 ordering eight or ten gallons of the best arrack in carboys properly secured, and some gardenseed, an elegant set of table and tea china, with bowls of the same of different sizes, decanters and drinking glasses, an handsome service of glass for dessert, four middlesized and six lesser dishes, and three dozen plates of hard metal, 100 skins of writing parchment prepared for enrolling our acts of Assembly on,</blockquote>

===Page 377===
<blockquote>several bundles of bed quilts, two pieces of blanketing, and as many of rolls for servants, 10 or 12 pairs of shoes and two slippers for himself, and one or two other articles, and a bonnet for Mrs. Wythe. Also an handsome well built chariot, with the device sent painted on it, as well as a copper plate with the arms of Virginia neatly engraved, and some impressions of them to be pasted on books belonging to the House of Burgesses." In 1775 he was clerk of the House of Burgesses in which year he was elected a member of Congress. In 1776 he was a member of the Congress which signed the Declaration of Independence written by his former pupil, Thomas Jefferson, and in the same year he was on the committee to revise the law of the commonwealth of Virginia--a position which he was well qualified to fill not only because of his great learning and familiarity with the law and public affairs but because he had been the compiler of, the Code of l769.

In 1777 he was Speaker of the House of Delegates and in the same year was one of the three judges of the Chancery Court established by law. In 1779 he was professor of law in William and Mary College, and it is said that he was the first professor of law in the United States. It is also said of him that he was the first judge to rule an act of the General Assembly as unconstitutional.

In 1787 he was elected a member of the convention which met in Philadelphia and adopted the Constitution of the United States, but like Dr. McClurg he was not present when the Constitution was signed. Inasmuch as Edmund Randolph and George Mason who were present refused to sign, the three Virginia deputies who did sign it were George Washington, John Blair, and James Madison, Jr.

In 1789 George Wythe resigned the professorship of law in William and Mary College and became the sole chanchellor of the State by which title he is best known. In met 1788 he was vice president of the Virginia convention</blockquote>

===Page 378===
<blockquote>which ratified the Constitution of the United States Edmund Pendleton being the president. That convention on the second of June, 1788.

The Virginia members of Congress who signed the Declaration of Independence were George Wythe, Henry Lee, Thomas Jefferson, Benjamin Harrison, Thomas
Nelson, Jr., Francis Lightfoot Lee, and Carter Braxton. Maryland signed just above them and Pennsylvania just after them. There are well-known stories told of the grim pleasantries of the members at that instant. One is that as Charles Carroll of Maryland signed his name, which is just above that of George Wythe, to that immortal document, some one observed "Carroll, they'll never catch you; there are so many Charles Carrolls in Maryland"; whereupon that gentleman took up the pen and added "of Carrollton." Another story is that as the Pennsylvania delegation were signing some one remarked, "We must all hang
together!" "Or else we all hang separately," replied Benjamin Franklin.

We can well imagine how that distinguished group Virginians respected the character of George Wythe when an examination of the signatures shows that his name stands first as already mentioned: above that of Thomas Jefferson, the author of the paper himself; above that of Richard Henry Lee, the Cicero of the Revolution; above that of Thomas Nelson, Jr., who had brought from Virginia the resolutions of the Virginia convention directing Virginia's representatives in Congress to declare for independence; which resolutions had been drawn by Patrick Henry and offered by himself. I love to think that the Virginia delegation stood back to yield precedence to the great man whom they and the people of Virginia in common, so greatly loved and revered.

In preparing this sketch of Chancellor Wythe I have considered the great work that he did as judge of the High</blockquote>

===Page 379===
<blockquote>Court of Chancery where his opinions rank with those of his great pupil, John Marshall, who owed so much to him in what he did in establishing the Constitution of the United States; for it was in the convention of 1788 already referred to as having met in Richmond to ratify the Constitution that George Wythe as chairman of the committee of the whole offered the resolution for the adoption of the Constitution of the United States by that convention.

<center>NOTES OF CASES</center>

I have been fortunate enough to have in the making of the following notes, the volume of Wythe's "Reports" formerly owned by Judge Peter Lyons, on which Judge Lyons has in his own _ hand marked and commented upon the "comments" of Chancellor Wythe. Judge Lyons represented the Parsons in the "Parson's Cause" at Hanover when P. Henry emerged into history. After Judge Pendleton's death he was president of the Court of Appeals, which at that time was composed of President Edmund Pendleton, Peter Lyons, William Fleming, Paul Carrington, James Mercer. November 12, 1793, Henry Tazewell qualified in place of Mercer who died during the term. March 15, 1796, Spencer Roane qualified in place of Henry Tazewell, resigned.

In 1779 Judge Lyons was judge of the General Court, and ex officio judge of the Court of Appeals. In 1789 he Was judge of the New Court of Appeals of five judges. In 1803, president on death of Judge Pendleton.

<center>''Decisions of Cases in Virginia by the High Court of Chancery''<br />''with Remarks upon Decisions by the Court of Appeals.''<br />''reversing some of those Decisions.''<br />Copyrighted by George Wythe<br />Title of Book 1795<br />Richd, Printed by Thomas Nicholson, MDCCXCV.</center>

{| width="30%" align="center" style="border-collapse: separate; border-spacing: 0; padding: 0;"
|-
| style="border-style: solid; border-width: 0 1px 0 0;"|
William Dawson, plff.
|
:P. 110
|-
|style="border-style: solid; border-width: 0 1px 0 0;"|
:::and
|
:(I give the comments of the
|-
|style="border-style: solid; border-width: 0 1px 0 0;"|
Beverley Winslow, deft.
|
:Reporter, RP).
|}

"This doctrine is not peculiar to us nor to our times. In Athens, the sentences of their ''diallacterioi'', who were judges chosen by</blockquote>

===Page 380===
<blockquote>the parties, differing from other arbitrators only in being sworn, were not reversible, as we learn from the Oration of Demosthenes against Midias." In "Wilkins ''vs''. Taylor" Note, "Why Gordian Knot," "the touxnoutas amadzas ho desmos," etc.

In note to
Devisme & Smith, London Merchants, p. 134
vs.
Henry Martin & Co., London Merchants,
Wythe, the reporter says:
<br />
<br />
{| width="30%" align="center" style="border-collapse: collapse; border-spacing: 0; padding: 0"
|-
| style="border-style: solid; border-width: 0 1px 0 0;"|
:::In note to
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Devisme & Smith, London Merchants,
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:do., p. 134
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Henry Martin & Co., London Merchants,
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Wythe, the reporter says:
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The writer of these notes, differing in this point with three capital English judges, is aware that he will be regarded with a fastidious eye by men whose veneration for the ''Westmoasterian oracles'' is equal to the veneration of the ancients for the ''dodonoean'' and ''delphic'' oracles; but when he has reason, the only despot to which he professeth unconditional submission, on his side, he will venture to differ with any man.

Wythe disapproves the determination in the case between Solomons vs. Ross for these considerations, etc.

In Farley ''vs''. Shippen (do., p. 142) the Court of Appeals say, "When out of empires violently dismembered (which was the case between America and Great Britain) separate, and independent nations are formed, such of the evils which must happen, both during the conflict and after it, may be cured by treaties between nations when tranquility is restored, more humanely than by fulminating the panoply of escheats, forfeitures, and confiscations, involving in distress and ruin many people on both sides innocent, otherwise than by a fiction, of the injuries which caused the separation."

To the above statement the great Chancellor Wythe adds as a note: "May we not hope the period not to be far distant, when the regum ultima ratio will give place to modes of disceptation, rational, just and humane for terminating national differences of every kind? What nation, by their example, is fitter than Americans, to recommend those modes!"

In Hinde ''vs''. Edmund Pendleton and Peter Lyons, Admrs. of John Robinson, (do., p. 146) The court deals with ''by-bidding'' at a sale of slaves, saying "he bid the pretium affectionis which is unlimited and which was therefore--''What the By-Bidder and His prompter'' pleased!"</blockquote>

===Page 381===
<blockquote>The chancellor's note is "Men most commend him who most deceives them, because

<center>" 'Doubtless the pleasure is as great Of being cheated as to cheat.'</center>

as Butler hath observed, when they are cheated out of their senses only; but when by a deception they are injured in their property, they are not disposed to commend him who deceived them."

In Edmund Pendleton ''vs''. Thos. Lomax (do., p. 90) Wythe says as to a divided court, in a criminal prosecution being an acquittal of the accused. "AEschylus in his Eumenides informs us that such was the dictate of Minerva in the case of Orestes, when there was the same number of judges on each side, when he was tried for slaying his mother."

In Rose against Pleasants and others (do., p. 153) as to the valuation of land in tobacco by tobacco inspectors:

After citing extracts from the opinion and decree of the Court of Appeals, there is added by the chancellor:

A commentary upon this opinion and decree.

(Quoting). ''"There is error in the said decree."'' He adds bitterly, "That decree surely was not erroneous entirely, although it was reversed entirely."

(Quoting). ''"The parties having chosen certain persons to value the land purchased, none others could, without their mutual consent, be substituted to perform the same."''

Wythe adds, "but upon this principle the Court of Appeals are supposed to have deviated in a subsequent part of their decree."

(Quoting). ''"The power delegated to those persons was merely to value the land, and not to adjust the accounts, or settle other disputes, between the parties."''

Wythe adds, "one of the reversed decrees set aside everything that those persons did, and the other approved nothing more of what they did than that part which the correcting decree established; namely, the valuation of the land in stirling money."

(Quoting). ''"No time being fixed for the valuation to be made, etc., it ought to be governed by circumstances at the time of making the valuation, and not at the time of the contract, and no objection arises from the situation of the country, etc."''

Wythe adds, "the persons appointed by the parties to value</blockquote>

===Page 382===
<blockquote>the land in tobacco compared the values of land and tobacco with stirling money, and declared the value of so much tobacco to be equal to the value of the land, because those articles being each equal to the same quantity of stirling money are equal to one another."

(Quoting). ''"What the valuers did in adjusting the accounts between the parties was not only void in exceeding their powers but improper in the exercise of what they assumed in their allowing credits to Mr. Ross, etc."''

Wythe adds, "For the same reasons these credits are disallowed by the reversed decrees."

(Quoting). ''"Neither law nor custom do warrant the scaling of a tobacco payment made in discharge of a tobacco debt."''

Wythe adds, "this part of the correcting decree ministereth occasion to enquire whether the debt in this case which is confessed to have been originally a tobacco debt after what had happened remained a tobacco debt. ... The men chosen ... perform the business in such a manner, that the Court of Appeals annihilate the part relative to the conversion of the money into tobacco, establishing the other part of the referee's act, that is, in money."

After citing another long paragraph from the opinion of the Court of Appeals, Wythe adds briefly: "Between this paragraph and any sentiment in the reversed decree no discrepancy appeareth."

To another paragraph of the opinion he adds, "When a case like this shall be shown, perhaps a precedent for the reversed decree may be shown."

In reply to another statement in the opinion, he adds, after referring to what was uncertain in the testimony before the lower court.

"Whosoever can show what else would be done with it, --- erit mihi Magnus Apollo."

He then goes into logarithms as to the four cases in ''compound'' interest, to prove how, when principal, time, and rate of interest are given, to find the ''amount'', at the end of that time at compound interest.

In Hill ''vs''. Gregory and Braxton ''vs''. Gregory (do., p. 15), quoting the opinion of the Court of Appeals, Wythe adds "the doctrine contained in the proemium to the latter decree, was not controverted in the present case, nor is recollected to have been controverted for almost two centuries before it in any case, and is thought not to have required at this day grave dis-</blockquote>

===Page 383===
<blockquote>cussion and the sanction of solemn decision" (as to relief in equity against mistake or accident and of unconscionable and oppressive use of a judgment at law made by one party to an agreement recovered against another).

Then he adds, "The words ''"there is no error in so much of the said decree'' (that is, the decree of the high court of chancery) ''as sustains the suit for relief"'' seems an approbation of something done by the judge of that court in sustaining the suit for relief: but if by any effort of him the suit for relief was
sustained, the effort must have been like the ''vis inertiae'', for it was as inert in sustaining the suit for relief as the ground whereon the Capitol stands, is inert in sustaining that edifice."

Again the chancellor in his comment on the opinion of the Court of Appeals, says, "The agreement included in this opinion is an enthymema, an imperfect syllogism, in which one proposition is suppressed. If the agreement be cast in the figure of a perfect syllogism, ''the major proposition'' would be by law, If a debitor, who oweth money on several accounts making payments, do not at the times of payments, or before, direct in which of those accounts, the payments shall be entered to his credit the creditor may enter the payments to the credit of the debitor in any other account subsisting between those parties.

"The minor proposition would be: But Carter Braxton who owed the money on several accounts, viz, on account of bills of exchange, protested, and on account of a bond, making payments, did not at the time of payments, or before, direct that to his credit, on account of the protested bill of exchange, the payments should be entered. And the conclusion would be: therefor the creditor, Fendal Southerland, might enter the payments to the credit of the debitor, Carter Braxton, on account of
the bond. With this conclusion the reversed decree accorded.

"It is said to be erroneous, and if it be so, it must be erroneous either because the major proposition is false; or because the minor proposition is false; for if those premises be true, the conclusion is unavoidable; and the decree according with it cannot be erroneous."

He goes on to analyze the opinion, using the same inexorable logic as follows: "The two paragraphs contain four distinct propositions: but between any one of them and the conclusions, or anyone of the conclusions, or between all the propositions and all or any of the conclusions doth not occur one single instance of a middle term to connect the extremes together."</blockquote>

===Page 384===
<blockquote>After supplying the middle term which results in the conclusion different from that found by the Court of Appeals, he adds:

"By what form of ratiocination can one or two, or all of the conclusions mentioned be deduced from that proposition? If neither, why was it stated?"

In Maze ''vs''. Hamilton (do., p. 44) the chancellor says: "The judge of the High Chancery Court who is bound to adopt the decrees of the Court of Appeals, register them, and enforce execution of same, when he performing this duty, in such an instant as the present, where the sentence for which he is compelled to substitute another, was the result of conviction, imagines his reluctance must have in it something like the poignancy which Galileo suffered when having maintained the
truth of the Copernican in opposition to the Ptolemaic System, he was compelled by those who could compel him to adjure that heresy."

In the same case under the head of "Commentary" after quoting a paragraph of Judge Pendleton's decision, he writes "instead of this farrago of text and gloss, let the unsophisticated words of the act be substituted." ... And further, quoting, he adds, "This may pass for demonstration with those who have sagacity to discern a concatenation of the arrangement with what is said to be shown by it." And when the Court of Appeals said: "I am sure the interpretation is more natural, more proper, etc.," he adds: "Confidence cannot determine interpretation is more natural, etc., with the principles, justice."

In his "Remarks" to "Williams vs. Jacob and Wife" 49) he says: with reference to the act of the General Assembly from which any man with a military warrant might extrude the proprietor . . . in his anguish of soul, he could only "bewail his misfortune in some such terms, perhaps, as ''dulcia linquimus arva'' and mutter to himself, ''Impius haec tam culta novalia miles habebit?''"

In Burnsides ''vs.'' Reid (do., p. 50), the chancellor says in a note, "The climax of rights here attributed to the statute seems to have been fabricated by companies of land mongers, who, not content with the extravagant license granted them by orders of council, perhaps as beneficial as if they had been boundless,
wished to convert them into monopolies."

On page 53 he adds, under "Remarks," "The decree is admitted to be erroneous by him who delivered it, and who de-</blockquote>

===Page 385===
<blockquote>clared, at the time, that it did not accord with his own opinions; but that it was congruous, as he believed with the sentiments of the Court of Appeals, he was mistaken; but, perhaps to avoid such a mistake will not seem easy to one who peruseth the reversing decree, and endeavoreth to connect the conclusion with the premise."

He further adds, "this naughty decree ... is repeated almost literally although it is said to be reversed entirely."

In Roane et al. ''vs''. James Innes, Attorney General; Jacquelin Ambler, Treasurer; and John Pendleton, Auditor (do., p. 68) the chancellor's note is, "By this doctrine, the officer who was thus unluckily discharged would have the thirst of Tantalus.

''"Nee bibit inter aquas, nec poma natantia carpit, Petronius Arbiter."''

In Hilton ''vs''. Hunter (do., p. 88), he says, "This specimen of refutation seemeth not less happy than compendious. It is economical; for by it are saved the expenses of time and labor requisite, in a dialectic investigation which is sometimes perplexed with stubborn difficulties. It is a safe mode; for fallacy, if it exists in the refutation, cannot be detected."

The year after George Wythe had signed the Declaration of Independence, there was born in the County of Hanover in the parsonage of a Baptist minister, a man child, who was to become perhaps the most famous citizen of the United States in his time, Henry Clay by name. When a youth of sixteen he wrote in the clerk's office in the city of Richmond and there formed the acquaintance of the great man of whom I am writing who, at that time, presided over the court of which Peter Tinsley, Esq., was clerk. The judge invited young Clay to his house, who nearly fifty years afterward wrote of him, "My first acquaintance with Mr. Wythe was 1793 in my sixteenth year,
when I was a clerk in his court and he then probably three score and ten. His right hand was disabled by gout or rheumatism and I acted as his amanuensis and wrote the cases he reported. It cost me a great deal of labor. Not understanding a single Greek character, to write citations from Greek authors which he inserted in the copies of his report sent to Mr. Jefferson, to Samuel Adams, and one or two others I copied them by imitating each character from the book.

"Mr. Wythe was one of the purest and best and most learned men in classical lore that I ever knew. ... His countenance was full of blandness and benevolence and he made in salutation to others the most graceful bow that I ever witnessed."</blockquote>

===Page 386===
<blockquote>Of Chancellor Wythe, Jefferson has spoken in the most affectionate and appreciative way:

"The pride of the institution of William and Mary is Mr. Wythe, one of the Chancellors of the State and a professor of law in the College; he is one of the greatest men of the age, having held without competition the first place at the bar of our general Court for 25 years and always distinguished by most spotless virtue. He gives lectures regularly and holds moot courts and parliaments wherein he presides and the young men debate regularly in law and legislation learning the rule of
parliamentary proceeding and acquire the habit of public speaking.

The tragedy of his death January 8, 1806, must be alluded to though it were well that it might be overlooked. He was poisoned by a great nephew in whose behalf he had made his will devising him the greater part of his estate. The old Chancellor lived long enough to revoke the will and disinherit the ungrateful and guilty kinsman who was discovered after his death to have committed forgery of his great uncle's name and attempted to avoid detection by the additional crime already
referred to.

"The great County of Wythe, which has so recently; furnished the Chief executive of the Commonwealth, was named after the patriot whom I have herein described."

At the end of his will was written by the great Virginian:

<div style="margin-left:2em; text-indent:-2em;">"Good Lord most merciful, let penitence
Sincere to me restore lost innocence; </div>
<div style="margin-left:2em; text-indent:-2em;">In wrath my grievous sins remember not;
My recent faults out of thy record blot</div>
<div style="margin-left:2em; text-indent:-2em;">That, after death's sleep, when I shall wake
Of pure beatitude I may partake.</div>

GEORGE WYTHE (Seal)."

At a great dinner presided over by Colonel Linn Banks, Speaker of the House of Delegates, aided by William H. Fitzhugh of the Senate as vice president, given in Richmond in 1822 to Henry Clay and George M. Bibb of Kentucky, who were there upon matters of state, among the twenty-one toasts drunk, the last but one was offered by Mr. Jos. C. Cabell:

"The memory of George Wythe-the patron of genius, and the friend of youth!"</blockquote>

==References==
<references />

[[Category:Biographies (Articles)]]

Examinations of George Wythe Swinney for Forgery and Murder

2015-02-06T15:07:37Z

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{{DISPLAYTITLE:"Examinations of George Wythe Swinney for Forgery and Murder: A Documentary Essay"}}
[[File:WilliamAndMaryQuarterlyOctober1955Wythe.jpg|thumb|right|400px|Engraved portrait [[George Wythe]] by [[Depictions of Wythe|J.B. Longacre]], from the ''William and Mary Quarterly,'' 3rd ser., 12, no. 4 (October 1955), 512.]]
[[File:BoydHemphillMurderOfGeorgeWytheTwoEssays1955.jpg|thumb|right|400px|Title page from Boyd and [[Examinations of George Wythe Swinney for Forgery and Murder|Hemphill's]] pamphlet reprint, [https://catalog.swem.wm.edu/law/Record/343766 ''The Murder of George Wythe: Two Essays''] (Williamsburg, VA: Institute of Early American History and Culture, 1955).]]
Wythe scholar W. Edwin Hemphill contributed to a special issue of ''The William and Mary Quarterly'', dedicated to the murder of [[George Wythe]], in October, 1955. The issue was published in accordance with the Marshall-Wythe celebration at the [http://law.wm.edu/ College of William & Mary Law School] on September 25, 1954, for the bicentennial of [[John Marshall|John Marshall's]] birth. The journal pairs Hemphill's essay on "[[Media:HemphillExaminationsOfGeorgeWytheSwinneyOctober1955.pdf|Examinations of George Wythe Swinney for Forgery and Murder]],"<ref>W. Edwin Hemphill, "Examinations of George Wythe Swinney for Forgery and Murder: A Documentary Essay," ''William and Mary Quarterly'' 3rd ser., 12, no. 4 (October 1955), 543-574.</ref> with another by [[wikipedia:Julian P. Boyd|Julian P. Boyd]], "[[Murder of George Wythe]]."<ref>Julian P. Boyd, "[[Media:BoydMurderOfGeorgeWytheOctober1955.pdf|The Murder of George Wythe]]," ''William and Mary Quarterly'' 3rd ser., 12, no. 4 (October 1955), 513-542.</ref> Hemphill had rediscovered witness testimony given for [[Death of George Wythe#Sweeney's Trial|Sweeney's murder trial]] in 1806, and both authors made use of this new information.

Hemphill and Boyd's work was published as a pamphlet reprint the same year, under the title: [https://catalog.swem.wm.edu/law/Record/343766 ''The Murder of George Wythe: Two Essays''] (Williamsburg, VA: [https://oieahc.wm.edu/ Institute of Early American History and Culture,] 1955).
==Article text, October 1955==
===Page 543===

<blockquote>
<center>
'''Examinations of George Wythe Swinney<br />for Forgery and Murder: A Documentary Essay'''<br />W. Edwin Hemphill*
</center>
“I SHUDDER when I think of it." Thus wrote [[wikipedia:John Page (Virginia politician)|John Page]] three weeks after the death of [[George Wythe]] in Richmond on June 8, 1806.<sup>1</sup> Less than a year and a half had elapsed since a "numerous concourse" of Jeffersonian Republicans had gathered at the Washington Tavern in the capital on March 4, 1805, to celebrate the second inauguration of [[Thomas Jefferson]] as the President of the United States. On the joyous occasion of the party's victory banquet Governor Page had asked Judge Wythe to retire and had then proposed a volunteer toast to "George Wythe, distinguished alike for his wisdom and integrity as a magistrate, and his zeal and disinterestedness as a patriot." The tavern's hall had resounded with nine cheers—as many as were given in response to any prearranged or spontaneous toast, even that to the President himself.<sup>2</sup> Nine months later Page had retired from the governorship.
As he sat at his writing desk late in June, 1806, amid the peace and security of "Rosewell," his magnificent home in Gloucester County, John Page reflected upon the saddening, disheartening news he had heard during a recent trip to Richmond. [[William DuVal]], George Wythe's nearest neighbor, had told Page how their mutual friend had suffered and had died—and how very suspect certain circumstances preceding that death seemed. But nothing had yet been proved. So the circumspect Page scribbled to another friend an outburst that was more a sermon than a digest of the evidence. "I know only enough" about the "horrid tale," he remarked in his letter to St. George Tucker, one of Wythe's students and the judge who had succeeded Wythe in the chair of law in the College

<div style="font-size: 85%;">
* Mr. Hemphill is Managing Editor of ''Virginia Cavalcade'' and a member of the staff of the Virginia State Library. These depositions were discovered by Mr. Hemphill and are now printed for the first time in this issue of the ''Quarterly''.

<sup>1</sup> John Page to [[St. George Tucker]], Jun. 29, 1806, Tucker-Coleman Papers, Colonial Williamsburg.

<sup>2</sup> Richmond ''Enquirer'', Mar. 8, 1805.
</div>
</blockquote>

===Page 544===

<blockquote>
of William and Mary, "to shock my Soul." But the former Governor could not forbear comment along other lines. The murder of Chancellor Wythe, he exclaimed, made him "feel for humanity—and the wounded honor of my Country!"<sup>3</sup>
[[wikipedia:William H. Cabell|Governor William H. Cabell]], Page's successor, was also distressed. He reminded one of his sisters-in-law of their experience when they had visited a Miss Nelson, who had then been living in the modest Richmond home of her uncle, the widowered, scholarly Chancellor. "She and all of us were almost children, and few grown men would have found any interest in staying in the room where we were. But the good old gentleman brought forth his philosophical apparatus and amused us by exhibiting experiments, which we did not well comprehend, it is true, but he tried to make us do so, and we felt elevated by such attentions from so great a man."<sup>4</sup>
The up-and-coming [[wikipedia:William Wirt (Attorney General)|William Wirt]], who had served for a year in a judicial office coordinate with that of the victim,<sup>5</sup> wrote from Norfolk to [[wikipedia:James Monroe|James Monroe]], who was abroad, in indignant terms about the "dose of arsenick administered" to "poor old Chancellor Wythe."<sup>6</sup> Five weeks later Wirt could assure his absent wife, "I dare say you have heard me say that I hoped no one would undertake the defence of [the accused, George Wythe] Swinney, but that he would be left to the fate which he seemed so justly to merit."<sup>7</sup>
The editor of a Richmond newspaper was upset enough to describe his news announcement of the death as a "painful task."<sup>8</sup> An editor in Raleigh, North Carolina, was told "by a gentleman lately from Rich-

<div style="font-size: 85%;">
<sup>3</sup> John Page to St. George Tucker, Jun. 29, 1806, Tucker-Coleman Papers.

<sup>4</sup> William H. Cabell to Mrs. William Wirt (undated), quoted in John Pendleton Kennedy, ''Memoirs of the Life of William Wirt, Attorney General of the United States'' (Philadelphia, 1849), I, 151-152. Hereafter cited as Kennedy, ''William Wirt''.

<sup>5</sup> Ambitious for wealth, Wirt found his position as judge of the Superior Court of Chancery for the Eastern District irksome, its salary barely adequate in view of his second marriage, which took place in September, 1802. It "is possible," he observed wryly, "that I may, like Mr. Wythe, grow old in judicial honors and Roman poverty. I may die beloved, reverenced almost to canonization by my country, and my wife and children, as they beg for bread, may have to boast that they were mine." William Wirt to Dabney Carr, Feb. 13, 1803, ''ibid.'', 95. In May, 1803, Wirt returned to the practice of law as an attorney, with his residence and headquarters in Norfolk. ''Ibid.'', 87-101.

<sup>6</sup> William Wirt to James Monroe, Jun. 10, 1806, Monroe Papers, vol. XI, no. 1373, Library of Congress.

<sup>7</sup> William Wirt to Elizabeth Gamble Wirt, Jul. 13, 1806, Kennedy, ''William Wirt'', 1, 152-153.

<sup>8</sup> [[Virginia Argus, 10 June 1806|Richmond ''Virginia Argus'', Jun. 10, 1806]].
</div>
</blockquote>

===Page 545===

<blockquote>
mond" about the crime and was thus enabled to "scoop" the world by publishing the first printed details, albeit inaccurate ones, of the "circumstances of this horrid transaction."<sup>9</sup> Newspapers as far away as Boston recorded its effect.<sup>10</sup> Richmond's press devoted an apparently unprecedented amount of space to the modest, touching, but reserved funeral oration by [[William Munford]]<sup>11</sup> and to laudatory tributes received as anonymous communications to the editors; the total aggregated what seems to have been more column inches of eulogy than had been elicited in Virginia newspapers by the death of George Washington or by that of any other person.<sup>12</sup>
Washington's imaginative, opportunistic biographer, Mason Locke Weems, seized upon news that had "quite galvanized" the "very young and tender hearted" in Charleston, South Carolina, as excuse enough for a discursive essay. That itinerant book-peddler described himself as "getting now to be a little oldish . . . , and daily, as becomes a stranger in Charleston, at this season, looking out for a squall of the same sort." Weems viewed with equanimity the fact that "death, by a touch of his old thresher, with equal ease, brings down a Chancellor or a cherry." He professed no grief over the death of the Virginian he portrayed as "The Honest Lawyer." On the contrary, the effusive "Parson" enjoined joy "that this veteran of the law, after a life of glorious toil, to revive the golden age of justice on earth, was returned to the high courts of heaven-not

<div style="font-size: 85%;">
<sup>9</sup> Raleigh, N. C., ''Minerva'', Jun. 16, 1806.

<sup>10</sup> Boston, Mass., ''Gazette'', Jun. 19, 1806, and ''Columbian Centinel'', Jun. 21, 1806.

<sup>11</sup> After the death of Wythe's second wife in 1787, William Munford (1775-1825) had lived in Wythe's home in Williamsburg and had been a special object of Wythe's generous attentions to youth. Grateful, Munford named his oldest child George Wythe Munford "after my old friend and benefactor the Chancellor." William Munford to his sister-in-law, Mrs. Mary R. Preston, Jan. 10, 1803, Munford- Ellis Papers, Duke University Library. Munford, his heart "torn with sorrow," then accepted the Council of State's assignment to preach the funeral oration, partly because "the ties of gratitude to that best of men, for the extraordinary kindness he ever manifested towards me, ought to prohibit my suffering him to go to his grave without an Eulogy." William Munford to Governor William H. Cabell, Jun. 8, 1806, Executive Papers, Virginia State Library. The funeral oration by Munford was printed in its entirety by two Richmond newspapers: Richmond ''Enquirer'', Jun. 13 and 17, 1806; Richmond ''Virginia Argus'', Jun. 17, 1806.

<sup>12</sup> See issues of the ''Enquirer'', the ''Impartial Observer'', the ''Virginia Argus'', and the ''Virginia Gazette, & General Advertiser'' during the first three or four weeks after Jun. 8, 1806. The author's comparison is based upon impressions rather than upon actual counts of the space allotted by Richmond editors to obituaries, eulogies, etc., for Wythe and for such other distinguished citizens as George Washington, who had died in 1799, and Edmund Pendleton, who had died in 1803.
</div>
</blockquote>

===Page 546===

<blockquote>
pale and trembling . . . , wet with widows' tears, and blood of murdered patriots, to meet the tear-avenging God; but bright in conscious integrity, with hands pure as the sweet palms which press the alabaster bottles of life, and in robes of innocence, snow-white as those that angels wear, to meet the smiles of the Judge Supreme, and the acclamations of brother saints innumerable."'<sup>13</sup>
Celebrants of the Fourth of July in 1806 drank toasts to the memory of George Wythe.<sup>14</sup> Restricted to severe brevity by that social form of tribute, those who gathered for the Fourth at Lexington, Kentucky, remembered Wythe simply as "a faithful labourer in the vineyard of the republic."<sup>15</sup> There the orator of the day was Henry Clay, who until his own death remained proud of the fact that he had been associated with Wythe's court during the 1790's. Indeed, young Clay had been the amanuensis who transcribed for publication the Chancellor's annotated decisions, confusingly peppered though they were with Greek phrases Clay had been able neither to understand nor to write well.<sup>16</sup> Saddened by the news that had plunged Richmond into mourning (news that had just reached Lexington), Clay made his address "short and impressive."<sup>17</sup>

The sense of revulsion felt throughout the country crossed party lines as well as state lines. A Federalist organ in the nation's largest city copied from the Richmond ''Enquirer'' two paragraphs of Republican editor Thomas Ritchie's shocked obituary. To those paragraphs it appended the Petersburg, Virginia, ''Republican's'' pointed comment: "It is generally believed, that this patriot, has been brought to the grave, by means, the 'most foul, base and unnatural,' and that the accused is to undergo an examination."<sup>18</sup> Even a modern interpreter of the Old Dominion cites the felony as the worst example of the cussedness—or something worse—

<div style="font-size: 85%;">
<sup>13</sup> M. L. Weems, "[[Honest Lawyer|The Honest Lawyer: An Anecdote]]," Charleston, S. C., ''Times'', Jul. 1, 1806.

<sup>14</sup> [[Richmond Enquirer, 8 July 1806|Richmond ''Enquirer'', Jul. 8, 1806]].

<sup>15</sup> Lexington ''Kentucky Gazette'', Jul. 5, 1806.

<sup>16</sup> Henry Clay to B. B. Minor, May 3, 1851, printed in Benjamin Blake Minor, 'Memoir of the Author," in George Wythe, ''Decisions of Cases in Virginia, by the High Court of Chancery, with Remarks upon Decrees, by the Court of Appeals, Reversing Some of Those Decisions'' (2d ed., B. B. Minor, ed., xxxii-xxxvi. Richmond, 1852), Hereafter cited as Wythe, ''Decisions''.

<sup>17</sup> Bernard Mayo, ''Henry Clay, Spokesman of the New West'' (Boston, 1937), 208-209.

<sup>18</sup> Philadelphia, Pa., ''Poulson's American Daily Advertiser'', Jun. 17, 1806. This newspaper attributed the remark to the Petersburg ''Republican'' of an unspecified date.
</div>
</blockquote>

===Page 547===

<blockquote>
that she attributes to Virginians.<sup>19</sup> The murder of George Wythe took at the time top or high rank among the state's most heinous crimes. It still does.
Inevitably, the revolting affair created quite a stir, for people ''will'' talk. Throughout the week before the prostrated Wythe's last breath set the bells of Richmond a-tolling, his death was a foregone conclusion. People marveled that a man of his age could so long survive the excruciating agonies of so insidious and lethal a poison. While Wythe still suffered, strong suspicion was aroused. Circumstances and tangible evidence converted suspicion into conviction at least seven days before the poison produced its ultimate effect upon the Chancellor's strong constitution.
The suspect was as undoubted as was the conclusion that Wythe was a victim of premeditated murder by means of arsenic. Invariably the slayer was identified as the venerable patriot's teen-aged grandnephew and namesake, George Wythe Swinney, an ingrate who had already proved himself unworthy of the home and education he had enjoyed for several years under the hip roof of the Chancellor's unpretentious cottage. Had not that young reprobate stolen books and money from his too-trusting benefactor? Had he not forged checks against his patron's bank account? And had it not been generally known, doubtless by Swinney himself, that he was the chief heir to Wythe's estate, a modest one but doubtless large enough to provide some relief to a culprit in financial difficulties? So, people said, he had placed his fatal dose in the breakfast coffee served in the unsuspecting household on Sunday morning, May 25. Immediately after that meal the good old judge and two freed Negroes had become critically ill. Lydia Broadnax, the Chancellor's faithful cook and servant, recovered. Michael Brown, the mulatto lad to whom Wythe had personally been giving a classical education—Greek and all—as a practical experiment in testing and developing the intelligence of Virginia's other race, had died on the next Sunday, June 1. The Chancellor himself lived in torment—and perhaps toward the end in a merciful coma—through a second week, but he died on the second Sunday morning, June 8. Fortunately, however, he did not expire before he had altered his will to disinherit the villainous Swinney.
Such is the traditional account of the death of Wythe—a paraphrase expanded to greater length than any known to have been written within the next two weeks, doubtless shorter than many conversational versions

<div style="font-size: 85%;">
<sup>19</sup> Virginia Moore, ''Virginia Is a State of Mind'' (New York, 1943), 190-191.
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<blockquote>
of the time, and certainly embodying the contemporary explanations of the timing, the method, and the motive of the murderer of Michael Brown and George Wythe.<sup>20</sup> This story of the baneful circumstances has persisted ever since 1806. In its retellings it has undergone normal embellishments and amendments. Developments not fully understood when they occurred gave the tale a poor foundation at the start. The recollections of its original narrators grew more and more subject to error with the passing years. Family traditions, transmitted orally, added details and supplied conversations that seem more logical than they are trustworthy. Fanciful emphases and interpretations have been born of assumptions, not of research.
The only substantial modification, however, has been a pronounced tendency to portray the poisoning of Wythe as an accident, while that of Michael Brown has remained the result of intentional murder. This alteration cannot be traced backward beyond 1850. It stems from two sources that were not independent of each other. One was the quite faulty memory of Dr. John Dove of Richmond, who claimed in 1856 that he had been "present during the sickness & death of Judge Wythe." Dove alleged that the Chancellor had been ill before May 25, 1806, and that Swinney had not expected him to eat breakfast that Sunday morning where the poisoned coffee was to be served. The other source was Benjamin Blake Minor, editor of the ''Southern Literary Messenger'', who contributed a biographical sketch to the second edition of the Chancellor's ''Decisions'' (1852). Minor talked with Dr. Dove, who undoubtedly told him something to the effect that Swinney had "vowed vengeance" only against the mulatto boy; and

<div style="font-size: 85%;">
<sup>20</sup> Evidently the earliest summaries of the circumstances now extant are in the reliable letters written by William DuVal to Thomas Jefferson on Jun. 4 and 8, preserved in the Jefferson Papers, Library of Congress. Neither attributes to the poisonings a plain method or motive. The earliest written statement as to motivation and method is apparently to be found in the letter of Jun. 10, 1806, from William Wirt in Norfolk to James Monroe, Monroe Papers, vol. XI, no. 1373. That letter was written before Wirt had learned of Wythe's death. Internal evidence in Wirt's letter indicates that the allegations it relayed were based exclusively on information written on Jun. 5, in a letter that has not been found, by Governor William H. Cabell, his brother-in-law. A later account is in the brief, less specific recollection recorded by Littleton Waller Tazewell, who wrote that "it was generally believed" that Wythe's death "was produced by poison, administered in his coffee, by a reprobate boy, a relation of his who he had undertaken to educate, and who was afterwards convicted of having committed many forgeries of checks in his patrons name." "Sketches of his own family, written by Littleton Waller Tazewell, for the use of his children. Norfolk. Virginia. 1823" (MS. in the Virginia State Library), 121.
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===Page 549===

<blockquote>
Minor found what seemed to him to be sufficient substantiation in Wythe's will and two of its codicils, which made Swinney the residuary legatee of bequests to Michael Brown.<sup>21</sup> Until now the only serious analysis of the traditional account of Wythe's death and of the Dove-Minor misinterpretation has been that of Julian P. Boyd. His lucidly reasoned booklet on ''[[Murder of George Wythe|The Murder of George Wythe]]'' assayed them chiefly by the test of comparison with information found in seven previously unexploited letters written in 1806 to President Jefferson by Wythe's intimate friend and executor, William DuVal.<sup>22</sup>

But other and even better contemporary records are also extant, and it is good that the ''William and Mary Quarterly'' affords space in this issue both for them and Dr. Boyd's thoughtful interpretation, now relatively unavailable. Chief among these additional documents are official court records of the preliminary trials of George Wythe Swinney for forgery and murder. Like pirates' gold buried in a forgotten pit, they lay neglected through more than a century and a quarter despite recurrent curiosity about Wythe's tragic death. These legal records, discovered by the present writer a number of years ago and now published for the first time, contain precious nuggets of authentic information. They include digests of the sworn testimony of sixteen witnesses for the prosecution against Swinney. They add up to a convincing indictment of him. The discovery was made in the office of the Clerk of the Hustings Court of the City of Richmond,<sup>23</sup> where the documents lay within the

<div style="font-size: 85%;">
<sup>21</sup> Both of the phrases quoted above are from Dr. Dove's recorded recollections, which are replete with provable errors and must be considered wholly suspect. "[[Memorandum Concerning the Death of George Wythe|Memoranda concerning the death of Chancellor Wythe]]—Signed in the Aut[o]-g[rap]h. of T[homas]. H. Wynne and rec'd by him from Dr. John Dove, Sept. 16, 1856," MS. in the Brock Collection, Henry E. Huntington Library and Art Gallery. Hereafter cited as Dove, "Memoranda."F or evidence that John Dove, M.D., was a Richmond practitioner from about 1822 to about 1852, see Wyndham B. Blanton, ''Medicine in Virginia in the Nineteenth Century'' (Richmond, 1933), 48, 76, 91, 238, 240. For evidence that Dove influenced Minor directly, see Minor, "Memoir of the Author," in Wythe, ''Decisions'', xxvii.

<sup>22</sup> Julian P. Boyd, ''The Murder of George Wythe'' (Philadelphia, 1949).

<sup>23</sup> Binder's title "[[Hustings Court Order Book|Order Book No. 6, 1804-1806]]," 464-465, 482-488. Rough drafts of the records for these two cases of the Commonwealth v. Swinney—drafts identical to the final ones in every important respect—can be found in the same office in the volume given the binder's title of "[[Hustings Court Minutes|Minutes No. 3, 1802-1806]]" (MS. with pages not numbered) under dates of Jun. 2 and 23, 1806, respectively. Microfilm copies of both the Minute Book and the Order Book are available in the Virginia State Library. The final drafts of the two documents have been transcribed from the Order Book for publication below.
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<blockquote>
domain of the very court to which the laws of Virginia prevailing in 1806 required that such an offender in Richmond as Swinney should be brought first for any trial of which an official record would have been kept. When Richmond had been incorporated in 1782, it was made a unit of local government. The General Assembly had provided by law for the annual election of twelve citizens to serve in their spare time as municipal officials. Half of them were to constitute a legislative Common Council. The remaining six—a mayor, a recorder, and four aldermen—were commanded "to hold a court of hustings" each month. Its jurisdiction in Richmond corresponded to that of a county court within county boundaries. Each of the judges of the Hustings Court had been vested with the powers of a justice of the peace, and they had been specifically assigned the duty "of examining criminals for all offences committed within the limits of the said corporation." If they found a defendant guilty of a serious crime, they were to refer him to a higher court for trial before professional judges and a jury.<sup>24</sup> These governmental and legal arrangements for the preservation of law and order had been modified only slightly in later statutes, but a law of 1803 had increased the membership of the Common Council to fifteen and that of the Hustings Court to nine, doubtless in recognition of Richmond's growth to a population of more than five thousand.<sup>25</sup> We shall find that not all of our questions are answered by these documents, but no searcher for the treasure-trove could reasonably have expected it to be so rich. Yet it multiplies by many times the amount of contemporary data at our disposal. It enables us to confirm some details reported unofficially at the time and to correct others. It supplies us with vivid portraits of a gloomy, wicked, and yet remorseful youth; of the last days of a questioning, then convinced, and ultimately forgiving victim; of the anxious solicitude and growing outrage of the latter's friends; and of their transition from innocent acceptance of his serious illness as a natural thing to mounting suspicion, relatively thorough investigation, and distressing proof of the poisoner's guilt. Coupled with our greater knowledge of toxicology and with other contemporary records not utilized

<div style="font-size: 85%;">
<sup>24</sup> William Waller Hening, compiler, ''The Statutes at Large ... of Virginia . . .'' (Richmond, Philadelphia, New York, 1819-1823,) XI (Richmond, 1823), 45-51. Hereafter cited as Hening, ''Statutes''.

<sup>25</sup> ''Ibid.'', XII (Richmond, 1823), 407-408; Samuel Shepherd, compiler, ''The Statutes at Large of Virginia,. . . 1792, to . . . 1806 . . .'' (Richmond, 1835-1836), II, 93, 422-425, III, 73-75. Hereafter cited as Shepherd, ''Statutes''.
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<blockquote>
by previous investigators, it affords us a surer understanding of the grim story of the unpunished forgeries and murders committed by George Wythe Swinney than was vouchsafed to any of the people who mourned the death of Chancellor Wythe and sought with decreasing fervor to do justice to the cause of it—a more reliable understanding, indeed, than any of our predecessors attained.
The official record of the examination of Swinney for alleged forgery reads as follows:
At a Court of Hustings called and held for the City of Richmond at the Courthouse, on Monday, the second day of June 1806, for the examination of George W. Swinney,<sup>26</sup> who stands accused of forgery.<sup>27</sup>
Present

Edward Carrington, Gentleman, Mayor,
Samuel Pleasants, Gentleman, Recorder,
Henry S. Shore, William Goodwin, Anderson Barret,
David Lambert and William Richardson, Gentlemen, Aldermen.

The prisoner was led to the bar in custody of the Sergeant of this City; whereupon sundry witnesses were sworn and examined, and the prisoner in his defence fully heard: On consideration whereof, the Court is of opinion that the prisoner is guilty of the offence aforesaid, and doth order that he undergo a trial therefor at the next District Court directed by law to be holden at the Capitol in this City: and it is further ordered that the said George W. Swinney be bound in a recognizance in the penalty of one thousand dollars, with suf-

<div style="font-size: 85%;">
<sup>26</sup> George Wythe Swinney, whose surname occurs in contemporary records also in the form of various spellings of Sweeney, was a grandson of George Wythe's sister and hence a grandnephew of Wythe. For genealogical information concerning him and related Sweeneys see W. Edwin Hemphill, George Wythe the Colonial Briton: A Biographical Study of the Pre-Revolutionary Era (Doctoral Dissertation, University of Virginia, 1937), 40.

<sup>27</sup> Swinney had doubtless been accused of forgery as the result of a preliminary hearing before one or more of the municipal magistrates or justices of the peace, presumably within the last five days of the preceding week, May 27-31, as is indicated by the testimony of the first witness below. William Wirt enumerated a few other manifestations of dishonesty on Swinney's part that had been preludes to his climactic crime: "The young villain (only about 16 or 17) had been in the habit of robbing his uncle [i.e., his granduncle, George Wythe] with a false-key, had sold three trunks of his most valuable law-books, had forged his checks on the bank to a considerable amount, & wound up his villainies by this act [of murder]." William Wirt to James Monroe, Jun. 10, 1806, Monroe Papers, vol. XI, no. 1373.
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===Page 552===

<blockquote>
ficient security in a like penalty, for his personal appearance before the Judges of the said district Court, on the first day of the next term thereof, to answer the Commonwealth of the offence aforesaid; and failing to give the security required, he is remanded to jail until he shall give such security, or shall be otherwise discharged by the course of law.
William Dandridge (Teller of the Bank of Virginia) a witness on the foregoing examination, being sworn, deposeth and saith: That on Tuesday last [May 27], the prisoner produced to him at the bank of Virginia, a check thereon for the sum of one hundred dollars, drawn in the name of George Wythe esquire, which the deponent paid. That some time after, on examining the check, he suspected it to be a forged one, and he thereupon went to the prisoner and stated that he believed there was a mistake in said check; That the prisoner immediately produced the money and delivered the same to the deponent. That the prisoner frequently presented checks at the bank in the name of the said George Wythe; and the deponent verily believes that six checks now produced in Court were presented by the prisoner, and are all counterfeited.
Peter Tinsley,<sup>28</sup> another witness sworn on the said examination deposeth and saith: That he carried to George Wythe esquire seven checks drawn in his name on the bank of Virginia, who denied having drawn or signed more than one of them.
William Dandridge and Peter Tinsley here in Court acknowledge themselves indebted to his Excellency William H. Cabell governor or chief magistrate of the Commonwealth of Virginia, in the sum of one hundred pounds each, of their respective goods and chattels, lands and tenements, to be levied, and to the said governor and his successors, for the use of the said Common-wealth rendered: Yet upon this Condition, that if the said William Dandridge and Peter Tinsley shall severally make their personal appearance before the Judges of the District Court directed by law to be holden at the Capitol in this City, on the first day of the next term thereof, to give evidence on behalf of the Commonwealth against George W. Swinney, who stands accused of forgery, and shall not depart thence without the leave of the said Court, then this recognizance is to be void.
(Minutes signed) E: Carrington Mayor<sup>29</sup>

<div style="font-size: 85%;">
<sup>28</sup> Tinsley was for many years Clerk of the High Court of Chancery.

<sup>29</sup> One item of corrective evidence is brought out in this record. Unofficial reports of 1806, whenever they stated or implied a chronology for Swinney's crimes, invariably indicated that his forgeries and the discovery of them preceded his poisoning of Judge Wythe. On the contrary, Dandridge testified that Swinney was sus-
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<blockquote>
The official record of the examination of Swinney on the charge of murder is a remarkably detailed one. Its unusual length doubtless reflects a common impression of the uncommon nature and circumstances of the alleged crime. The record reveals utter desperation on the part of an al-most deranged Swinney. It portrays the mounting growth of suspicion during illnesses that might have been provoked by merely natural causes. It embodies observations that link Swinney conclusively with ratsbane (white arsenic) and yellow arsenic. It records medical symptoms and measures that are not nice but seem necessary. And it indicates reserve on the part of three physicians when they gave under oath their professional judgments whether or not the death of George Wythe could be attributed to arsenic poisoning. This record is as follows:
At a Court of Hustings called and held for the City of Richmond at the Courthouse, on Monday, the 23d. day of June 1806, for the examination of George W. Swinney, who stands accused of murder.<sup>30</sup>
Present

The Same Justices as above.<sup>31</sup>

The prisoner was led to the bar in custody of the Sergeant of this City; where-upon sundry witnesses were sworn and examined, and the prisoner in his
pected for the first time of his forgeries after he had presented a sixth forged check at the bank on Tuesday, May 27. That Tuesday will be found to have been two or three days after Swinney had poisoned Wythe. On that Tuesday the Chancellor lay abed in the early stages of his mortal illness. That is one reason—and his charitable, compassionate nature may be another—for the fact that Wythe himself did not testify in court which of the seven checks "carried" to him by Tinsley he had not signed personally. Further details about the six forgeries will be revealed later in this article.

<div style="font-size: 85%;">
<sup>30</sup> The accusation against Swinney for the alleged murders of "Wythe & Michael Brown the Freed Boy" had resulted, in keeping with Virginia law, from a hearing held on Jun. 18 before Mayor Edward Carrington and two other magistrates or aldermen. On that occasion the examination of witnesses "lasted near Five Hours." The mayor and his two colleagues "were of Opinion that they, Mr. Wythe & Michael, were poisoned by Geo. W Sweeney." The suspect was ordered to be held in jail to await trial by the Hustings Court as a "Court of Examination" on Jun. 23. William DuVal to Thomas Jefferson, Jun. 19, 1806, Jefferson Papers. Cf. Shepherd, ''Statutes'', III, 73-75.

<sup>31</sup> That is to say, the same six who had been present for the trials of earlier cases on Jun. 23: Mayor Edward Carrington, Recorder Samuel Pleasants, Jr., and Aldermen Henry S. Shore, Anderson Barret, David Lambert, and William Richard-son. Aldermen William DuVal, William Goodwin, and Thomas Underwood did not sit as judges for this examination. DuVal attended as a witness.
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defence fully heard: On consideration whereof, the Court is of opinion that the prisoner is guilty of the offence aforesaid, and doth order that he undergo a trial therefor before the next District Court directed by law to be holden at the Capitol in this City: and thereupon the said George W. Swinney is remanded to jail.<sup>32</sup>
Tarlton Webb,<sup>33</sup> a witness for the Commonwealth on this examination, being sworn, deposeth and saith: That about a fortnight or three weeks be-fore the prisoner was committed to jail, he enquired of the deponent where he could procure any ratsbane? The deponent replied that it was against the law of the United States to have it. The day before the prisoner was apprehended,<sup>34</sup> he came to the house of the deponent's mother, and shewed the depon[en]t something wrapped in paper, which he said was Ratsbane, and in-formed the deponent that he intended to kill himself, and offered to give the deponent some if he wanted to die. The deponent being shown some drugs found in the jail and produced in Court by Mr. [William] Rose,<sup>35</sup> deposes that what the prisoner showed him was like that in Mr. Rose's possession, and that there was about one table spoonful. The prisoner stated to the deponent that he was very unhappy and something pressed upon his mind; but though applied to, would not disclose the cause of his uneasiness to the deponent.

William Rose,<sup>36</sup> another witness sworn on this examination, deposeth and

<div style="font-size: 85%;">
<sup>32</sup> The [[Virginia, June General Court, 1806|Richmond ''Enquirer'', Jun. 24, 1806]], printed the following announcement of the decision: "George W. Swinney was yesterday called before the examining court of this city, on the charge of poisoning his great Uncle, the venerable George Wythe, and a servant boy. He was unanimously remanded to jail for further trial before the district court to be had in September next." Although it was not particularly customary for crime news, especially courtroom news of this tentative sort, to be widely reprinted, this item reappeared in such representative newspapers as the Richmond [[Virginia Argus, 25 June 1806|''Virginia Argus'', Jun. 25, 1806]]; the Alexandria ''Virginia Gazette, & General Advertiser'', Jun. 25, 1806; the Washington, D. C., ''National Intelligencer, and Washington Advertiser'', Jun. 30, 1806, and ''Universal Gazette'', Jul. 3, 1806; the Augusta, Ga., ''Chronicle'', Jul. 12, 1806; and the Savannah, Ga., ''Columbian Museum & Savannah Advertiser'', Jul. 12, 1806, and ''Georgia Republican'', Jul. 15, 1806.

<sup>33</sup> This witness has not been identified positively. His testimony suggests that he was probably a youthful friend of Swinney.

<sup>34</sup> Swinney was arrested on Wednesday, May 28, or Thursday, May 29, according to testimony given in this examination by witness William DuVal, reproduced below. Webb's testimony here to the effect that Swinney told him on May 27 or May 28 that "something pressed upon his [Swinney's] mind" can be, therefore, a veiled reference by Swinney himself to worry and remorse because of the way he had used poison, with results that had not yet proved fatal, and possibly also because of the forgery committed and detected on Tuesday, May 27.

<sup>35</sup> For an identification of William Rose see the next paragraph and footnote 36.

<sup>36</sup> Rose was the public jailor of Richmond. Richmond ''Enquirer'', Jul. 8, 1817. Rose's
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<blockquote>
saith: That his servant girl Pleasant, went into the garden about twelve o'clock the day after the prisoner was committed to jail and brought the paper this day produced [in court], the contents of which the deponent immediately knew to be arsenic. When the prisoner was committed to jail, the deponent did not search him; but about an hour and a half after, or thereabouts, hearing that it was probable he had pistols, he went into the jail and felt his pocket, and felt that there was a heavy substance wrapped in paper; but supposing that it might be coppers, or some few eighteen penny pieces, he did not take it out of his pocket. The prisoner had the use of the debtors room and the jail yard at his option. As soon [as] the arsenic was found the deponent suspected that Mr. Wythe was poisoned.

Samuel McCraw,<sup>37</sup> another witness sworn on the said examination, deposeth and saith; That being informed by Mr. Rose, that arsenic had been found in his garden, he proposed to have the servant carried into the garden to see the place where [the arsenic had been] found, to ascertain whether it was deposited there, or thrown from the jail yard. That at the place where the servant stated the arsenic to have been found, the deponent found two papers lying about eighteen inches apart: That the crude arsenic had penetrated a little into the earth, and there were two plants one a fennel, the other a beat [''sic''], broken off as he supposed by the throwing the arsenic over the jail wall: The deponent thinks it must have come from the jail yard. The beat [''sic''] that was wounded was next [i.e., nearer] the jail wall and was wounded considerably farther from the ground than the fennel. On the first of June, one week after Mr. Wythe's attack [began], the deponent was re-quested to go to attest [the final codicil to] Mr. Wythe's will. Mr. Wythe re-quested the prisoner's room and trunk to be searched. The deponent, with others, was conducted to the room where the prisoner lodged, opened the chest and found a port folio with a quire of blotting paper, which the deponent believes to be of the same kind with what was found wrapped round the arsenic found in the garden. In the prisoner's room on a writing table, the deponent found a paper on which were a half a dozen strawberries with the appearance of arsenic having been sprinkled over them. He found a phial with an appearance of having had a liquid, some of which adhered to the side of the phial, and on examination was believed to have been a mixture of
testimony and that of the next witness make it plain that the former's residence and garden adjoined the jail.

<div style="font-size: 85%;">
<sup>37</sup> McCraw was one of the four witnesses who signed the final codicil to Wythe's will. Minor, "Memoir of the Author," in Wythe, ''Decisions'', xxxviii-xxxix.
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===Page 556===

<blockquote>
arsenic and sulphur. He also found two pieces of coarse brown paper, with something adhering to each, which was also declared to be arsenic and sulphur. The deponent frequently visited Mr. Wythe in his last illness and he appeared to be in very great agony from the first time to his death. Some time before the death of Mr. Wythe, while this deponent was sitting by him, Mr. Wythe exclaimed, cut me—the deponent supposed he wanted to have his flannel cut loose which the deponent accordingly did, but which gave apparent displeasure to Mr. Wythe, who then putting his hand to his throat and heart again called out, cut me, but could make no further explanation: this induced a belief in the deponent and those present that it was his wish to be opened after his death. The deponent never did hear Mr. Wythe express any suspicion of having been poisoned.
Fleming Russell<sup>38</sup> another witness sworn on the said examination deposeth and saith; That the day he received the warrant [for the arrest of Swinney] he went to Mr. Wythe's and found the prisoner: when he showed the prisoner the warrant and carried him to Major DuVal's & discovered he had no pistols, took his knife from him, and put his hand in his coat pocket, he felt very distinctly that he had two separate parcels of something wraped up in paper in his pocket but made no further search. After the prisoner was committed to jail, the deponent informed Mr. Rose, that the prisoner had some-thing else in his coat pocket and advised him to make a search, but did not go with Mr. Rose to make it.
Taylor Williams<sup>39</sup> a witness sworn on the said examination deposeth and saith; That about three weeks before the prisoner was apprehended, he mentioned something to the deponent about poison. The deponent informed him that copperas [i.e., crystallized ferrous sulphate] and water was poison. In about six or seven days after, the prisoner began a conversation with the deponent about poison: the deponent then told him ratsbane was poison, and that a gentleman of his acquaintance used it for the purpose of killing rats, and that [it] was to be bought in the shops, but does not recollect with certainty whether the prisoner asked him where it might be had.

Major William DuVal<sup>40</sup> another witness sworn on said examination de-

<div style="font-size: 85%;">
<sup>38</sup> This witness has not been identified. Judging from his testimony, he must have been a Richmond police officer.

<sup>39</sup> Williams appears from his testimony to have been a young friend of Swinney.

<sup>40</sup> William DuVal was of Huguenot descent, an officer during the Revolutionary War, an attorney, a member of the Virginia General Assembly, a magistrate of Richmond who had served as mayor during 1805-1806, and an intimate friend of Wythe, whose residence was also located in the square bounded by Grace, Sixth, Franklin,
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===Page 557===

<blockquote>
poseth and saith; that on the 25th day of May, he went to see Mr. Wythe, without knowing he was sick, and found him very ill[,] extended on his back. Mr. Wythe said he had not caught cold, that he was as well as usual in the morning, & eat his brea[k]fast as usual; but was immediately taken extremely ill, confined on his back except when forced up, which was upwards of forty times, and had fifteen large evacuations. After the prisoner was committed for the forgery he applied to the deponent by letter to be bailed. Mr. Wythe would have nothing to do with bailing [Swinney]. Mr. Wythe said he was taken ill on the twenty fifth day of May, about nine o'clock after having eat his break-fast; that on wednesday or thursday after, the prisoner was apprehended. Mr. Wythe requested that the prisoner's room and trunk might be searched, which request he repeated frequently, and finally on the first of June prevailed on Mr. McCraw and some other gentlemen who searched the room and trunk and found some papers with something adhereing to them which was declared by Doctor Greenhow<sup>41</sup> to be arsenic. The deponent saw the appearance of arsenic in an out house of Mr. Wythe's, in his yard, used as a shop; and [de-poseth] that some was also found in an old smoak house on a wheel barrow; which on being tried with a pin was proved to be arsenic. On thursday before Mr. Wythe's death he made an ejaculation and declared he was murdered in a low tone of voice. It was generally believed that Mr. Wythe had left the prisoner a great portion of his estate, and known that he had made some pro-vision for the mulatto boy, [Michael] Brown.
Samuel Greenhow<sup>42</sup> another witness sworn on said examination gave the same evidence upon the search of the prisoners room and trunk with McCraw.
and Fifth Streets. DuVal died in Buckingham County in 1842 at the age of 93. W. Asbury Christian, ''Richmond: Her Past and Present'' (Richmond, 1912), 57, 545; Richmond ''Enquirer'', Jan. 13, 1842, and May 13, 1842.

<div style="font-size: 85%;">
<sup>41</sup> The Greenhow to whom DuVal referred may have been the next witness, identified in footnote 42, who is known to have participated in the search of Swinney's room but is not known to have had any claim to the title of Doctor. Conceivably, on the other hand, this Doctor Greenhow may have been the Doctor James G. Greenhow who was living in Richmond in 1815. Blanton, ''Medicine in Virginia in the Nineteenth Century'', 246, 445, citing the Richmond ''Virginia Argus'', Mar. 1, 1815.

<sup>42</sup> Samuel Greenhow issued, as "Principal Agent," a call for the annual meeting in 1809 of the Mutual Assurance Society, the well-known, pioneer Virginia fire insurance company. Richmond ''Enquirer'', Dec. 24, 1808. With men like the Reverend John D. Blair, the Reverend John Buchanan, the Reverend John Holt Rice, and William Munford, Samuel Greenhow was a charter member of the Board of Managers of the Virginia Bible Society, which was organized in Jul., 1813. Christian, ''Richmond'', 87. Greenhow was one of the four witnesses who signed the final codicil to Wythe's will. Minor, [["Memoir of the Author"|"Memoir of the Author,"]] in Wythe, ''Decisions'', xxxviii-xxxix.
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William Price<sup>43</sup> another witness sworn on said examination, gave the same evidence as McCraw and Greenhow on the subject of the search of the prisoner's room, and [substantiated the testimony] of McCraw on the subject of Mr. Wythe’s request to be cut. Mr. McCraw mentioned at that time that he supposed Mr. Wythe wanted to be cut open. Mr. Wythe appeared to be in great agony during his illness, and more particularly when moved.
Nelson Abbott<sup>44</sup> another witness sworn on said examination, deposeth and saith, that on saturday the 24th day of May last, he put an axe, now produced [in court], into a shop in Mr. Wythe’s yard, which he [Wythe] had lent him [Abbott] for a work shop; that on the 27th he went to Hanover and returned on friday the 30th when he discovered the arsenic in its present situation, and a hammer much stained with yellow, which has since been cleaned. The negroes in the shop said the prisoner had beat something they did not know what on the side of the ax with the hammer.
William Claiborne<sup>45</sup> another witness sworn on the said examination deposeth and saith: That he went to Mr. Wythe's the wednesday after his illness [began], who informed him that the Sunday preceding in the morning, he was as well as usual, immediately after breakfast he was taken with a colarimorbus [cholera morbus] and then a violent lax, went forty times that day, and had at least fifteen large evacuations: That on Saturday night he supped [i.e., on Saturday night, May 24, Wythe had supped] on milk and strawberries. Mr. Wythe said all the negroes [of his household] were taken [sick] at the same time. The deponent went into the kitchen and found most of them very ill. He then went to Major DuVal's, and expressed his opinion that the family were poisoned; and suspected the prisoner in consequence of his having been detected [on the previous day, May 27] in the forgery, as the death of Mr. Wythe before the detection could only prevent an alteration in his will which the deponent believed was much in favor of the prisoner. The deponent frequently told the prisoner that he would be well provided for by Mr. Wythe if he behaved well. After the death of the yellow boy [Michael Brown], the deponent was told by some of the negroes that arsenic was found in the outhouses. The deponent took some off the wheelbarrow in the old smoke house, applied fire to it and found from the smell that it was arsenic. The deponent asked Mr. Wythe whether the prisoner break-

<div style="font-size: 85%;">
<sup>43</sup> William Price was another of the witnesses to the final codicil to Wythe's will. Minor, "Memoir of the Author," in Wythe, ''Decisions'', xxxviii-xxxix.
<sup>44</sup> No information to identify this witness has been discovered.
<sup>45</sup> William Claiborne was the father of W. C. C. Claiborne, Governor of the Territory of Orleans. Richmond ''Enquirer'', Oct. 3, 1809.
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fasted with him the morning before he [Wythe] was taken [sick]. At first he did not answer. Afterwards he said he did not know, he [Swinney] was always called to his breakfast, but sometimes took no thing to eat or drink. Mr. Wythe observed he died in peace with all the world, and said he should leave directions for his executor to search the prisoner's trunk. This took place after the death of the boy Michael [on Sunday morning, June <sup>46</sup>], about sunset on the first of June.

[[wikipedia:Edmund Randolph]],<sup>47</sup> being also sworn, deposeth and saith: That on Sunday the first of June about nine o'clock [A.M.], Major DuVal informed the deponent of the death of Michael from poison and [reported] Mr. Wythe as probably dying with the same. Mr. Wythe told the deponent he had supped on strawberries and milk the Saturday before he was taken ill. He wished his will to be altered so as to give to the prisoner's brothers and sisters what he had given him. The deponent made the alteration and then returned home, and afterwards went again to Mr. Wythe and informed him of the death of Michael Brown. The former codicil to the will was then destroyed and the present one made. On Wednesday the fourth of June, the deponent was in-formed by old Lydia [Broadnax] that more marks of poison had been discovered. The deponent went into the shop and saw Abbot's ax. The negro<sup>48</sup>

<div style="font-size: 85%;">
<sup>46</sup> George Wythe said in the final codicil to his will, dated Jun. 1, 1806, that he had been told that Michael Brown had died that morning. Minor, "Memoir of the Author," in Wythe, ''Decisions'', xxxviii-xxxix. An almost contemporary letter also refers to Brown's death on Sunday morning, Jun. 1. William DuVal to Thomas Jefferson, Jun. 4, 1806, Jefferson Papers.

<sup>47</sup> Edmund Randolph, the first Attorney General both of the Commonwealth of Virginia and of the United States, wrote and witnessed the final codicil to Wythe's will. See his testimony here given and Minor, "Memoir of the Author," in Wythe, ''Decisions'', xxxviii-xxxix. Randolph's career had overlapped Wythe's through the past thirty years—for example, in the Virginia conventions of 1776 and 1788. The first of the two codicils mentioned by Randolph in his testimony evidently devised to George Wythe Swinney's brothers and sisters only what Wythe had formerly bequeathed to Swinney. The second of the two codicils mentioned by Randolph devised to George Wythe Swinney's brothers and sisters everything that Wythe had formerly bequeathed both to Swinney and to Michael Brown. The will and its codicils dated Jan. 19 and Feb. 24, 1806, were proved in the General Court of Virginia on Jun. ii, 1806, by the oaths of Edmund Randolph and Peter Tinsley; and the final codicil, dated Jun. 1, 1806, was proved by the oaths of Samuel McCraw, William Price, and Edmund Randolph. For a printed copy of the will and its three validated codicils see Minor, ''ibid''. An attested manuscript copy is filed under Jun., 1806, in the Jefferson Papers.

<sup>48</sup> This reference to a certain Negro is not as precise as we might wish. Doubtless, however, Randolph talked on Jun. 4 with a Negro man employed in Nelson Abbott's workshop. Possibly this man was one of the same "negroes in the shop" who, according to Abbott's deposition, had told Abbott on May 30 that they did not
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===Page 560===

<blockquote>
was uncertain whether [it was on] the 24th or 26th of May, that the prisoner had caused the appearances [of poisons in the workshop]; but at last settled that it was on Saturday [May 24] when he found the prisoner in the shop, and one of the doors forced, and the prisoner was in the act of pounding some-thing on the axe. The prisoner asked him what it was? the negro replied he believed it was ratsbane. The prisoner then scraped it as clean as he could off the axe and folded it up in a piece of paper, wiping the axe with shavings. It was generally understood and believed that Mr. Wythe had left the bulk of his estate to the prisoner.
Doctor James McClurg,<sup>49</sup> another witness, being sworn, deposeth: That he was present at the opening of the body of Michael Brown. The lower part of the stomach was very much inflamed and had the appearance of the black vomit. The deponent went to visit Mr. Wythe on the day before the boy died and found him with a fever, his tongue very foul, had had no passage for twelve hours, and was free from pain. The appearance of the boy was such as arsenic might have produced; but such as might also have been produced by a great collection of bile. The deponent was also present at the opening the body of Mr. Wythe. The whole of his stomach and intestines had an uncommonly bloody appearance, that if produced by arsenic, in his [McClurg's] opinion, death would have ensued much sooner. Mr. Wythe had been frequently attacked with disordered bowells within three years last past.

Doctor James D. McCaw,<sup>50</sup> being also sworn, deposeth: That he was called
''know'' what substance Swinney had pounded into powder. In slight but not necessarily contradictory contrast, the Negro of whom Randolph testified simply ''believed'' on May 24 that the substance was ratsbane.

<div style="font-size: 85%;">
<sup>49</sup> Under the reorganization of the College of William and Mary instigated by Thomas Jefferson in 1779, James McClurg (1746-1823), Edinburgh-trained physician, had been one of Wythe's four colleagues in the faculty. For three years Dr. McClurg held the newly created chair of the professor of anatomy and medicine. Like Wythe, McClurg went to Philadelphia in 1787 to attend the convention from which emerged the Federal Constitution. McClurg was chosen to be Richmond's mayor in 1797, 1800, and 1803. For a quarter of a century he was one of the community's out-standing physicians. When the Medical Society of Virginia was organized in 1820, he was elected its first president. Although he was too infirm to take an active part in its affairs, he was re-elected in the next year. Blanton, ''Medicine in Virginia in the Nineteenth Century'', 13, 75-76; Christian, ''Richmond'', 545.

<sup>50</sup> James Drew McCaw, M.D., was one of the founders of the Medical Society of Virginia. His father, Dr. James McCaw, founded what might be called a Virginia medical dynasty destined to last five generations. Blanton, ''Medicine in Virginia in the Nineteenth Century'', 116-117, 261, 367. James D. McCaw's offer of 1802 to inoculate the poor of Richmond against smallpox had been accepted by the Common Hall or Council. Richmond ''Examiner'', Jun. 2, 1802. Judging by James D. McCaw's testi-
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<blockquote>
to attend Mr Wythe on the 26th of May between four and five o'clock. He had been up with a violent puking & purging, and the deponent gave him an opiate, after which he got better, and was better until the discovery of the prisoner's forgery [on Tuesday, May 27], when he became worse and continued to grow worse. The deponent saw the boy [Michael Brown] on the day before his death, when he had a fever and complained of great pain. The deponent saw him opened after his death, and thinks that his death might have been occasioned by a great accumulation of bile.
Doctor William Foushee,<sup>51</sup> being sworn, deposeth: That he attended the opening of Mr Wythe's body in the presence of many other physicians.<sup>52</sup> The stomach was very much inflamed, and appeared as if a new inflamation was coming on. There was very little bile in the liver. The same appearance that his stomach and intestines exhibited might have been produced by arsenic, or any other acrid matter.
James McClurg, William Foushee, James D. McCaw, William Rose, Samuel McCraw, Fleming Russell, William Claiborne, William Price (Register) Nelson Abbott and Taylor Williams,<sup>53</sup> here in Court acknowledge themselves

<div style="font-size: 85%;">
mony, he seems to have been more nearly the family physician to the Wythe household than any of the other physicians whose names occur in records concerning the Chancellor's last illness. To be compared with the recorded testimony of Dr. McClurg and that of Dr. McCaw concerning the autopsy on the body of Michael
Brown is DuVal's letter to Jefferson: "As a Magistrate I requested four eminent Physicians to open the body of the Boy. They did so; from the inflamation on the Stomach & Bowels they said that it was the kind of Inflamation produced by Poison." William DuVal to Thomas Jefferson, Jun. 4, 1806, Jefferson Papers.
<sup>51</sup> William Foushee, M.D., had been born in the Northern Neck in 1749. Like McClurg, he studied medicine in Edinburgh. He served as Richmond's first mayor, 1782-1783, as the town's postmaster for several years, and as the president of its Common Hall or town council for several years. He also served in both the legislative and executive branches of the state government. For many years he presided over the James River Company's internal navigation improvement projects. The General Assembly named him among the charter trustees of the Richmond Academy in 1802. Twenty years later the Medical Society of Virginia elected him its second president. When he died in 1824, he was almost seventy-five years old and was said to have been Richmond's oldest inhabitant. His death evoked an unusually detailed obituary. Christian, ''Richmond'', 57-58, 545; Blanton, ''Medicine in Virginia in the Nineteenth Century'', 75-76; Richmond ''Enquirer'', Aug. 24, 1824.

<sup>52</sup> DuVal reported to Jefferson that William Foushee, James D. McCaw, James McClurg, and two other physicians performed the autopsy on Wythe's body on the day of his death. DuVal stated simply that they found "considerable inflamation in the Stomach," but he added in the same context that it was "strongly suspected" that Wythe and Michael Brown had been poisoned with yellow arsenic by George Wythe Swinney. William DuVal to Thomas Jefferson, Jun. 8, 1806, Jefferson Papers.

<sup>53</sup> It may be highly significant that four of the fourteen witnesses were not
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severally indebted to his Excellency William H. Cabell governor or chief magistrate of the Commonwealth of Virginia, in the sum of one hundred pounds each, of their respective goods and chattels, lands and tenements, to be levied, and to the said governor and his successors, for the use of the said Common- wealth rendered: Yet upon this Condition, that if the said James McClurg, William Foushee, James D. McCaw, William Rose, Samuel McCraw, Fleming Russell, William Claiborne, William Price (Register) Nelson Abbott and Taylor Williams, shall severally make their personal appearance before the Judges of the District Court directed by law to be holden at the Capitol in this City on the first day of the next term of that Court, to give evidence on behalf of the Commonwealth against George W. Swinney, who stands accused of murder, and shall not depart thence without the leave of the said Court, this recognizance is to be void.
(Minutes signed) E: Carrington, Mayor

The depositions of the sixteen witnesses in the two proceedings of June 2 and 23 make Swinney's motives for murder clearer than other contemporary records. Obviously, that troubled knave had tried to solve more than one of his problems at once. By a single desperate deed he might forestall discovery of his forgeries, prevent any resultant reduction or cancellation of the legacy he would receive from Wythe, and claim his inheritance prematurely.
But the second Hustings Court record does not enable us to determine with finality precisely when and how Swinney committed his acts of murder. None of the testimony links arsenic with the coffee served in Wythe's cottage, according to the traditional story of the poisonings, at breakfast on Sunday, May 25. To contrary import are the depositions of Claiborne, McCraw, and Randolph. Their assertions under oath indicate that Swinney had mixed some arsenic with strawberries and that Wythe ate strawberries for supper on Saturday, May 24. Wythe's breakfast coffee may have become the supposed vehicle for the poison on the invalid ground of reasoning of the ''post hoc, propter hoc'' type. Actually, so far as we can tell,

placed under bond to be available to serve as witnesses in the forthcoming trial of Swinney on the charge of murder before the District Court. The four who were exempted from such an obligation were William DuVal, Samuel Greenhow, Edmund Randolph, and Tarlton Webb. While in some respects their testimony before the Hustings Court merely confirmed that of other witnesses, in these respects, and more especially in reference to other observations concerning which others did not testify, the evidence submitted by these four could not be omitted without weakening the case against Swinney.

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<blockquote>
he may have consumed poisoned foods at both meals. A fatal dose of arsenic usually produces acute symptoms within about an hour after it enters the human stomach, and death usually follows within one to three days. Wythe's case was not a typical one in the latter respect, and we have scant cause to assume that it was a normal one in the former respect. Fatal dosages of arsenic have been known in rare instances to cause no symptom for as many as twelve hours, particularly if the poison was ad- ministered in solid rather than liquid form and if a full meal was consumed with it; and death has been known to result as much as two weeks after the appearance of symptoms, as it did in Wythe's case. An inexperienced, experimenting Swinney may have underestimated on May 24 the amount of arsenic required to accomplish his premeditated purpose. He may have awaked the next morning to find that his attempt of the previous afternoon or evening had failed. He may then have added a second and larger quantity of arsenic to the breakfast menu. Neither this nor any alternative possibility can be proved conclusively from the available evidence.
More important than questions about details of that sort is the official record's revelation of the limited, inconclusive nature of the physicians' findings in the two autopsies. They did not exhaust every means known to the medical scientists and chemists of their generation to determine whether or not the deaths of Michael Brown and George Wythe had been unnatural ones. One authoritative treatise, for example, published in 1832 but embodying comparatively little that had been learned since 1806, devoted fully a hundred pages to its discussion of arsenic poisoning, forty of them to various definitive tests by which the presence of arsenic can be determined. Its author commented on the ease with which that almost tasteless and odorless chemical element could be procured in various forms and compounds and could be administered surreptitiously. Then he added,
"It is fortunate, therefore, that there are few substances in nature, and perhaps hardly any other poison, whose presence can be detected in such minute quantities and with so great certainty."<sup>54</sup> The inflamed tissues observed by the Richmond doctors were ambiguous. The same kind of examination today would do little more, if any, to pin down positively the cause of such deaths, for gastrointestinal inflammations of quite similar

<div style="font-size: 85%;">
<sup>54</sup> Robert Christison, ''A Treatise on Poisons, in Relation to Medical Jurisprudence, Physiology, and the Practice of Physic'' (2d ed., Edinburgh, 1832), 223. This volume's treatment of arsenic poisoning covers pp. 223-324.
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<blockquote>
appearance can result from any of several distinct causes, both natural and unnatural. The Richmond physicians' post-mortem inspections should not have ended short of a few simple laboratory procedures. Standard analyses of that kind would almost certainly have proved beyond question whether or not arsenic had ended the lives of the youthful Michael Brown and the aged George Wythe.
The above testimony in both of the suits of the Commonwealth ''v.'' Swinney confirms an undisputed conclusion reached by all who have ever studied the matter: Wythe himself became fully convinced on his death- bed that Swinney was a forger and a murderer. Yet, in fact, that young man escaped legal punishment for both offenses. His road to freedom was, however, a tortuous one. Sometime during the summer of 1806 the charges against him were referred to a grand jury. It returned true bills. Thus it became the third judicial body to render a verdict of guilt against Swinney on each accusation, for the same conclusion had already been reached on each count by one or more of Richmond's magistrates and by the Hustings Court. Specifically, the grand jury cleared the way for the trial of Swinney by the District Court on each of six distinct indictments—one for the murder of Wythe, another for that of Michael Brown, and four for forgeries of Wythe's name on as many checks.<sup>55</sup>
On September 2, 1806, the District Court proceeded to tackle what the [[Respectfully Dedicated to the Legislature of Virginia|Richmond ''Enquirer'']] termed "the celebrated trial of George W. Sweeney, on the charge of administering arsenic to his great Uncle the venerable George Wythe." Judges Joseph Prentis and John Tyler, Sr., whose son of the same name was destined to become the tenth President of the United States, were the two members of Virginia's General Court assigned to preside over this session in the Richmond district.<sup>56</sup> Presumably, the two judges' judicial robes hid the mourning bands of crape that they and other members of the General Court had resolved to wear on their left arms for three months in tribute to the jurist Virginia had lost.<sup>57</sup> At the

<div style="font-size: 85%;">
<sup>55</sup> There is no record of any decision in regard to the other two checks that William Dandridge and Peter Tinsley had testified were, in the opinions of Dandridge and Wythe, also forged.

<sup>56</sup> [[Richmond Enquirer, 9 September 1806|Richmond ''Enquirer'', Sept. 9, 1806]].

<sup>57</sup> Ibid., Jun. 24, 1806; Richmond ''Virginia Argus'', Jun. 17, 1806; Richmond ''Impartial Observer'', Jun. 21, 1806. The Governor and Council had resolved on Jun. 14, "in honour of the deceased," to wear black bands similarly for one month as an "outward Sign of respect to his memory." Journals of the Council of Virginia (MSS. in the Virginia State Library), XXVII, 448. When the Virginia General Assembly convened in Dec., 1806, its members also resolved unanimously to "wear a badge of
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prosecuting attorney's table sat Philip Norborne Nicholas,<sup>58</sup> the popular young Attorney General of Virginia and successful leader in recent years of the Jeffersonian Republican party in the state. Nicholas had known Wythe while the Chancellor had still resided in Williamsburg. More recently they had been associated in various legal and political activities. Presumably, Nicholas had every reason to prosecute the case with all the vigor at his command.
But the shocked, incensed atmosphere of June had doubtless grown calmer by September, and impressive talents had been aligned on Swinney's side as counsel for the defense.<sup>59</sup> One of these lawyers was the same Edmund Randolph who had written the codicil disinheriting Swinney, the same Randolph who had given damaging testimony against him in the Hustings Court. The other lawyer at Swinney's side was the same William Wirt who had expressed a hope that no attorney would be found to defend him, so that he would be left to suffer the fate he deserved.
Wirt had been contemplating at the beginning of the summer a desire to move from Norfolk to Richmond, for his wife found Norfolk's summers unbearable. He had concluded at that distance within a month after Wythe's death that Swinney could conceivably be innocent of murder. Judge William Nelson of the General Court had told him that "there was a difference of opinion" among Richmond doctors as to the cause of the Chancellor's death and that "the eminent McClurg, amongst others, had pronounced that his death was caused simply by bile and not by poison." Then a brother of Swinney's distressed mother had traveled eastward to implore Wirt to serve as an attorney for the defense.<sup>60</sup>
Although Wirt had already decided before that visit that "it would not be so horrible a thing to defend" Swinney "as, at first, I had thought it," the plea made by his uncle posed a problem of conscience and of reputation. By letter Wirt asked his wife, "What shall I do?" And then he proceeded to influence her decision. "If there is no moral or professional impropriety in it, I know that it might be done in a manner which would avert the displeasure of every one from me, and give me a splendid ''debut'' in the metropolis. Judge Nelson says I ought not to hesitate a moment

<div style="font-size: 85%;">
mourning" for one month. Washington, D.C., [[National Intelligencer, 15 December 1806|''National Intelligencer, and Washington Advertiser'', Dec. 15, 1806]].

<sup>59</sup> ''Ibid.''

<sup>60</sup> William Wirt to his wife, Jul. 13, 1806, Kennedy, ''William Wirt'', I, 152-153.
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<blockquote>
to do it; that no one can justly censure me for it; and, for his own part, he thinks it highly proper that the young man should be defended. Being himself a relation of Judge Wythe's, and having the most delicate sense of propriety, I am disposed to confide very much in his opinion."'
The issue was settled within ten days. Nelson reiterated his opinion as to "the perfect propriety of the step." Mrs. Wirt evidently protested that her husband need not fear that she would suffer reproach. "I shall defend young Swinney under your counsel," he wrote her. "My conscience is perfectly clear, from the accounts I hear of the conflicting evidence."<sup>62</sup>
Records of the District Court, in which Randolph and Wirt under- took to save the life of George Wythe Swinney, are not extant; apparently they did not survive the fire that accompanied the Confederate evacuation of Richmond in April, 1865. Only from other sources can we learn whether or not the defense attorneys achieved their goal. The Richmond ''Enquirer'' reported succinctly the results of what was probably a day replete with courtroom drama and legal technicalities. "After an able and eloquent discussion" by counsel for the Commonwealth and for Swinney, read that newspaper's summary, "the jury retired, and in a few minutes, brought in the verdict of ''not guilty''. A similar indictment against him [Swinney] for the poisoning of Michael, a mulatto boy (who lived with Mr. Wythe) was quashed without a trial."<sup>63</sup>
There could have been no doubt whatsoever that Virginia's laws of 1806 defined murder by poisoning, if it were committed by a free person, to be murder of the first degree, punishable by death.<sup>64</sup>Some other ex- planation of the jury's astonishing verdict must be sought. Editor Thomas Ritchie offered his readers one hint why Randolph and Wirt had been able to win a quick decision in favor of their despised client. Some of the "strongest testimony" that had been heard by the Hustings Court and by the grand jury, Ritchie remarked, "was kept back from the petit jury" in the District Court. "The reason is, that it was gleaned from the evidence of negroes, which is not permitted by our laws to go against a white

<div style="font-size: 85%;">
<sup>61</sup> ''Ibid''. Nelson's distant kinship to Wythe was evidently through the second Mrs. Wythe, who had been a Taliaferro. See a copy of the will of Rebecca Cocke Taliaferro of "Powhatan," James City County, Nov. 12, 1810, in the possession of Colonial Williamsburg.

<sup>62</sup> William Wirt to his wife, Jul. 23, 1806, Kennedy, ''William Wirt'', 1, 154.

<sup>63</sup> [[Richmond Enquirer, 9 September 1806|Richmond ''Enquirer'', Sept. 9, 1806]].

<sup>64</sup> the enactments of 1796 and 1803, Shepherd, ''Statutes'', II, 5-14 and 405-406, respectively.
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<blockquote>
man."<sup>65</sup> Actually, the reason assigned by the editor would have been more nearly true if he had phrased it more carefully. As far back as 1732 and as recently as 1801 the statutes of Virginia had stipulated that a Negro or a mulatto could be qualified as a witness only in a lawsuit brought against a Negro or a mulatto or by the commonwealth for one.<sup>66</sup> That is why Lydia Broadnax had not told the Hustings Court in June whatever she knew about the involvement of George Wythe Swinney in the deaths of Michael Brown and George Wythe.
The legal disability of Negroes to testify against Swinney had loomed large in people's thinking about the prospective trials of that ingrate for murder ever since Michael had died. Even before William Wirt learned with certainty that Wythe had also been a victim, Wirt had realized that one law might prevent the fulfillment of justice under another. "The chain of circumstances fix the guilt of Sweney beyond reach of doubt," Wirt had then been willing to assert, "but some of those circumstances, material to his conviction in a court of law, depend, it seems, on black persons, & so he will escape for the poison[ings]. he is under prosecution for the forgery & of that must be convicted."<sup>67</sup>
One logical question is answered neither by Ritchie's explanation nor by Wirt's prophecy. Why was any of the evidence that had been admissible in the three previous proceedings—evidence that had resulted in three verdicts of guilt—not presented in the District Court? No record answers that question. Possibly the District Court refused to hear some of the testimony that had been given before the Hustings Court. Evidence given by the white witnesses in June concerning what Negroes had ob-

<div style="font-size: 85%;">
<sup>65</sup> [[Richmond Enquirer, 9 September 1806|Richmond ''Enquirer'', Sept. 9, 1806]].

<sup>66</sup> The exact words of the law of 1801 were: "Any negro or mulatto, bond or free, shall be a good witness in pleas of the commonwealth for or against negroes or mulattoes, bond or free, or in civil pleas where free negroes or mulattoes shall alone be parties." Shepherd, ''Statutes'', II, 300. The statute of 1785 was to the same effect, although its provisions were couched in negative terms and omitted the words "bond" and "free" in each of the five instances of their use in the enactment of 1806. Hening, ''Statutes'', XII (Richmond, 1823), 182-183. Digests of the 1732 and 1748 statutes and of related legislation can be found conveniently in June Purcell Guild, ''Black Laws of Virginia: A Summary of the Legislative Acts of Virginia concerning Negroes from Earliest Times to the Present'' (Richmond, 1936), 154-155.

<sup>67</sup> William Wirt to James Monroe, Jun. 10, 1806, Monroe Papers, vol. XI, no. 1373. Internal evidence in this letter indicates that for the facts he stated Wirt was indebted to a communication written on Jun. 5, 1806, by his brother-in-law, Governor Cabell, and the prophecies Wirt voiced may also have reflected the Governor's thinking as of that date.
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served and had told them may have been ruled inadmissible by Judges Prentis and Tyler because of its Negro source or its hearsay nature. On the other hand, we have no proof acceptable by the ordinary standards of historical criticism that Swinney was acquitted because of the repression of the testimony Lydia Broadnax or other Negroes might have given but for Virginia's laws. Ritchie's allegation about the withholding of testimony "gleaned from the evidence of negroes" remains unsubstantiated, and Wirt's prophecy can be considered to have been merely a recognition of the flimsiness of the circumstantial evidence others would be able to give.
The simple fact remains that no known witness was able to assert in any of the four proceedings that he had actually seen Swinney put poison into food eaten by Michael Brown or by George Wythe. Moreover, no physician is known to have been willing to swear that either of the two autopsies proved that death had been caused by a poison. In other words, the evidence against Swinney was purely circumstantial.
Thomas Ritchie himself had not been hysterical in his attitude toward Swinney during the first days of resentment following the news of the Chancellor's death. The editor had remembered, sanely and circum- spectly, that the accusations against Swinney had not then been proved and that, until and unless they were, he should be presumed innocent. "Every situation in life has its rights and its duties," Ritchie had cautioned his readers. "Let us therefore respect the rights of the accused."<sup>68</sup> If Swinney's two lawyers took advantage in the District Court of every legal technicality to protect their client's rights, Ritchie should have been among the last to imply any criticism of them, for they had placed themselves under obligation to do so.
In any case, George Wythe was dead. Another man's life was at stake. It is the very genius of the legal system Wythe had received from his forefathers and had himself helped to develop and to refine that this second life should not be taken lightly. Since we do not know in detail what transpired in that Richmond courtroom on September 2, 1806, we are left in the position of being forced to accept at face value the jury's final decision, which was that Swinney had not been proved beyond reasonable doubt to have murdered George Wythe and that he was therefore ''not guilty''. Similarly, we must accept the opinion of Attorney General Nicholas that it would have been useless to try to prove beyond reasonable doubt that Swinney had murdered Michael Brown.

<div style="font-size: 85%;">
<sup>68</sup> [[Richmond Enquirer, 10 June 1806|Richmond ''Enquirer'', Jun. 10, 1806]].
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Nevertheless, we can record the fact that those jurymen are the only persons known to have expressed at any time in or since 1806 an opinion that Swinney was not a murderer. William Wirt had concluded that Swinney could conceivably be innocent of the charge, but Wirt left no record now extant that he actually believed Swinney to be the victim of an unjust accusation. The common impression throughout the summer of 1806 was that Swinney had committed two premeditated murders. That opinion has remained unchanged to this day.
George Wythe Swinney had escaped death by hanging. It remained to be seen whether or not he would become permanently branded a convicted forger. Within another twenty-four hours he received a tentative answer to this second question. On Thursday, September 3, 1806, he was adjudged guilty on two of the forgery indictments.<sup>69</sup> But these verdicts were not allowed to stand unquestioned. Within ten days William Wirt pleaded successfully, "in an eloquent and ingenious speech" addressed to Judges Prentis and Tyler of the District Court, for arrest of judgment. Wirt's objections were considered acceptable by the two judges and were referred to the next session of the General Court for approval or rejection.<sup>70</sup> Wirt had changed his mind since his assertion in June that Swinney would doubtless be convicted of the forgery charges.
Someone else had come earlier than Wirt to the conclusion that the laws of Virginia would not justify inflicting punishment on Swinney for having obtained certain things of value at the state's bank by using forged signatures. Indeed, former Governor Page had decided in June that what Swinney had done at the Bank of Virginia was a crime only against God, not against any law of the Commonwealth of Virginia. "As to this young
Man's Forgeries," Page had commented in highly moralistic vein but with a practical twist, "when religion is out of the way, I can see nothing in our law, that could restrain him, or any one else from a free exercise of that lucrative Employment. But for a sense of religion, I myself could not have done a better act for the Benefit of my Wife & Children, than to have . . . died . .. consoled with the pleasing reflection that I had handsomely provided for my Family, in a way permitted, nay chalked out by our Laws." <sup>71</sup>

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<sup>69</sup> [[Richmond Enquirer, 9 September 1806|''Ibid.'', Sept. 9, 1806]].

<sup>70</sup> Richmond ''Virginia Gazette, & General Advertiser'', Sept. 13, 1806.

<sup>71</sup> Page's letter continued: "I could, if under no religious impressions, tell my Wife & Children, that no one would think the worse of them for what I had done; and indeed that they would always be respected in proportion to their riches, and
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Could it be true, as Page thought he perceived, that Swinney had violated no law by his use of counterfeited signatures of George Wythe? Almost entirely so, declared the General Court in two quite technical opinions on November 17, 1806, with Judges Francis T. Brooke, Paul Carrington, Jr., Hugh Holmes, Archibald Stuart, John Tyler, Sr., and Robert White on the bench. They learned that the District Court's jury had convicted Swinney on an indictment for having obtained from the Bank of Virginia on May 27, 1806, a ''banknote'' for $100. In order to do so, he had presented to William Dandridge both a counterfeited letter and a forged check purporting to have been written and signed by Wythe. But the judges also heard that the arrest of judgment had been awarded on the ground that the forgeries of which Swinney had been accused did not actually constitute offences against a Virginia statute enacted in 1789, which was the only law the forgery indictments against him had contrived to mention.<sup>72</sup>
For one thing, William Wirt had argued that the 1789 law "was intended to punish a pre-existing evil" and could not possibly have reference to any bank, since no bank was established in Virginia until "many years" later. In the second place, Wirt contended that the law's phraseology, as well as its date, precluded any possibility of its being applied to the Bank of Virginia. The statute made illegal any deceitful deed, bill of sale, or other such document that would result in the robbery of one or more "private individuals." The bank could not properly be considered a

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that both I and they would have been despised had I left them poor—that therefore the riches I had acquired for them would secure them respect in this World, and that as to any other, they need not trouble themselves about it—that they ought to enjoy their hearts desire in all things, and say 'let us eat & drink for tomorrow we die.' . . . But believing as I do in a divine revelation, I had rather perish with my Wife & Children through absolute Want, than that any one of us, should do one unjust or dishonest Act." John Page to St. George Tucker, Jun. 29, 1806, Tucker- Coleman Papers.

<sup>72</sup> The law that Swinney was alleged by the indictment to have broken had been adopted on Nov. 18, 1789. It was entitled "An act against those who counterfeit letters or privy tokens, to receive money or goods in other men's names." It provided that "if any person or persons, shall falsely and deceitfully obtain or get into his or their hands or possession, any money, goods or chattels of any other person or persons, by colour and means of any such false token or counterfeit letter, made in any other man's name as is aforesaid; every such person and persons so offending, and being thereof lawfully convicted in the court of the district, in which such offence shall have been committed," shall be subject to a maximum term of one year in prison and to "setting upon the pillory." Hening, ''Statutes'', XIII (Philadelphia, 1823), 22.
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"person or persons" within the meaning of the law. It was "a body corporate, an ideal body," and "no more a person, than the commonwealth of Virginia." Anything, therefore, that Swinney had obtained from the bank could not have been procured in violation of a law that made punishable the getting by false means of "any money, goods or chattels of any other person or persons." And in the third place, Wirt argued, what Swinney had received was not part of "the money or goods of the said George Wythe, because having been delivered under a check not drawn by him, the bank hath no right to charge it to his account."
In connection with the ''banknote'' in question under the first indictment, the General Court found Wirt's claims convincing enough. Its judges concluded that they should grant a permanent arrest of judgment. Thus they reversed the petit jury's verdict that Swinney was guilty; thus they pronounced him innocent of the crime alleged to have occurred on May 27. While Wythe lay on his deathbed that Tuesday, Swinney had perpetrated a forgery, but it was not an unlawful forgery.
The other indictment under which the District Court had found Swinney guilty of a violation of the same statute was quite similar to the first. The second differed in only one significant particular. It involved $50 that Swinney had obtained from the bank by the same means on April 11, 1806, in the form of ''currency''. Wirt's appeal in the District Court for an arrest of judgment had been won on the same three grounds, and they were pleaded anew as sufficient cause for making the temporary ban against sentence upon Swinney a permanent one.
In this instance the General Court did not agree. It refused to accept Wirt's argument that the "''money current''" Swinney had gotten at the bank in April could not properly be charged against the account of Wythe, by virtue of the forged check, and was therefore not Wythe's money until Swinney had acquired possession of it falsely. Evidently, Virginia's supreme tribunal for criminal law decided that neither of Wirt's first two points was valid in respect to either indictment and that the validity of Wirt's third contention depended entirely upon the natures of the two kinds of property the forger had received. In other words, the six judges' two decisions meant, essentially, that the promissory ''banknote'' Swinney obtained on May 27 had not been Wythe's "money, goods or chattels" but that the ''currency'' involved in the similar transaction of April 11 had been. If this distinction seems subtle, thin, and flimsy, it appears to have been not more so than whatever reasoning persuaded the judges to ignore
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Wirt's assertions that the 1789 law was not at all pertinent to the later means of "getting something for nothing" upon which an unconsciously clever forger had stumbled. The chagrined John Page, who had been Governor of Virginia when the state bank was established, had believed on June, 1806, that none of Swinney's forgeries was illegal. Page had been much disconcerted by his discovery that the commonwealth had not foreseen and had not prohibited such misuses of another's signature. The General Court, on the other hand, professed to believe that one of Swinney's forgeries had inadvertently violated a law more than fifteen years old and obviously designed to curb other frauds wrought by means if forgery. Consequently, the court decreed that punishment should be imposed upon Swinney under the second indictment by the District Court.<sup>73</sup>
Nevertheless, according to a report derived from official records that are not now extant, the District Court did not execute its sentence, which was that Swinney should spend one hour in the pillory at Richmond's public market and six months in prison. Contrary to the General Court's decree and for reasons inexplicable today, the District Court is said to have granted Swinney a second trial on the indictment the higher court had upheld, and then the attorney for the commonwealth declined to prosecute the case.<sup>74</sup>
Thus freed, technically at least, of all charges against him, but with a reputation he would never be able to live down locally, the "unfortunate" Swinney "then sought refuge in the West, where his career was brought to a premature and miserable close."<sup>75</sup> So reads one account, written about the middle of the nineteenth century, of the end of the life of

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<sup>73</sup> William Brockenbrough and Hugh Holmes, ''Collection of Cases Decided by the General Court of Virginia, Chiefly Relating to the Penal Laws of the Commonwealth, Commencing in the Year 1789 and Ending in 1814, Copied from the Records of Said Court, with Explanatory Notes'' (Philadelphia, 1815), 146-151.

<sup>74</sup> Minor, "Memoir of the Author," in Wythe, ''Decisions'', xxviii. In a footnote on that page Minor asserted: "The records of these proceedings [in the District Court after the return to it of the decree of the General Court in the last of tie suits of the Commonwealth v. Swinney] have been consulted in the office of tie Superior Court of Law for Henrico County." Minor wrote those words in or before 1852. Presumably, reorganizations of Virginia's judicial system between 1806 and 1852 account for the fact that records of the District Court in Richmond for its Apr., 1807, term (the first session it was scheduled to have after the Nov., 186, term of the General Court) had come by 1852 into the custody of the Superior Court of Law for Henrico County. The fire in Richmond during April 2-3, 1865, apparently explains their disappearance.

<sup>75</sup> ''Ibid''.
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the young man to whom George Wythe had been "kinder than a Father."<sup>76</sup> According to the memory of another Richmonder fifty years after George Wythe Swinney had been a defendant in the capital's courtrooms, Swinney went to Tennessee, stole a horse, served a term in a penitentiary, and was "then lost sight of."<sup>77</sup> The forgeries that preceded and led directly to the death of George Wythe may not have been plainly and provably crimes against the Commonwealth of Virginia. But they served one useful purpose, for they pointed out a glaring loophole in Virginia's laws. The state acted promptly to plug that gap. On the last day of the same year the General Assembly
adopted and put into immediate effect "An ACT to punish certain thefts and forgeries." That law clearly defined as a crime every deed by which any person should "fraudulently obtain, or aid or assist in obtaining from the Bank of Virginia, or any of its offices of discount and deposit, any bank or post note, or money, by means of any forged or counterfeit check or order whatsoever, knowing the same to be forged or counterfeited." Violators of the new statute, when they were properly found guilty in court, were to be imprisoned for "not less than two, nor more than ten years."<sup>78</sup>
In the final analysis, we may guess, George Wythe Swinney escaped death on the gallows because of three considerations. One of these seems to be the forgiveness Wythe himself gave him. That could not alter one whit Swinney's legal liability to pay the penalty for murder, but it may have influenced, both consciously and unconsciously, the men who prosecuted and defended Swinney, those who testified, the judges who decided what evidence was admissible, and the twelve "good men and true" who retired to a jury room in the September trial. A second determining factor probably was the failure of the physicians to perform complete autopsies and thus to be prepared to assert unequivocally on the witness stand that, in their professional judgments, the deaths of Michael Brown and George Wythe had been caused by arsenic poisoning. Such testimony would have become, quite possibly, the "clincher" that would have strengthened the

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<sup>76</sup> William DuVal to Thomas Jefferson, Jun. 4, 1806, Jefferson Papers.

<sup>77</sup> Dove, "Memoranda." Although Minor accepted Dr. Dove's recollections they are so untrustworthy in matters that can be checked that the unsubstantiated statements concerning Swinney's life after he escaped the clutches of the law in Richmond made by both Dove and Minor must be considered traditionary rather than supported by valid evidence.

<sup>78</sup> Shepherd, ''Statutes'', III, 289.
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web of circumstantial evidence against Swinney enough to put a knotted rope around his neck. A third presumed factor was inherent in Anglo-American jurisprudence. The doctors and other Virginians who participated as witnesses, attorneys, jurymen, and judges in Swinney's final trial for murder were honorable men. They cleared him of the accusation because, evidently, they thought it important to save the life of a young man who ''might'' be innocent, although he certainly seemed not to be. George Wythe himself would doubtless have had the same respect for the legal principle of a reasonable doubt.
Did Virginia justice suffer a miscarriage in 1806? For want of complete records, we cannot properly lift our second-guessing voices to cry that it went wrong. But we can agree heartily with the opinion held by Wythe himself and never relinquished by most of his sympathetic but straightforward contemporaries—the belief that, by every standard other than the technical ones of the law, Swinney had assuredly done serious wrongs. Like Wythe's survivors, we can only take comfort in the fact that Virginia justice may have avoided adding another wrong to Swinney's and in the fact that his chief victim, Chancellor Wythe himself, the "Virginia Socrates" and the "American Aristides," had achieved on his deathbed, by revoking his generous bequests to Swinney, one final act of obvious equity.
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==References==
<references/>