Jefferson’s Second Father
The Young Wythe
Wythe’s forebears—death of father—his mother and the mighty-willed George Keith—a homely picture of Wythe’s tuition—a boy learns about slavery—legal studies—the young lawyer—the circuit in rural Virginia—the associate marries the master’s daughter—an early death
When called upon to write a short biography of George Wythe in 1820, Thomas Jefferson noted that his friend was born in either 1727 or 1728, although conceding that he might be mistaken by a year or two. He was mistaken—it is more likely Wythe was born in 1726. This is because a will Wythe wrote in April 1803 indicates he was then aged seventy-six. The inhabitants of the house in which he was born, on the banks of Brick Kiln Creek on the northwest arm of the Back River, Virginia, were solid God-fearing folk who never made a fuss about birthdays, and nor did he. His forebears were of English–Scottish descent, planters of the middling sort, and, through three generations, justices of Elizabeth City County.
When the English arrived in Virginia in 1607 in the quest for gold or a river passage to a southern sea, they found instead the tobacco weed—and proved that it was possible to build an empire on smoke. George’s great-grandfather Thomas Wythe took up land adjacent to the Back River some time before 1680. If he had gone farther inland to farm the rich black soil along the James River, his descendants might have been as rich as the Byrds, the Randolphs or the Carters.
Instead, the Wythes remained in Elizabeth City, where no one was wealthy enough to be called an aristocrat. Their plantation, Chesterville, lay inland from the salt marshes, barely above sea level, beside an anxious creek whipped by tides and floods, and when the wind blew from the north one could smell the salt turning the soil sour. The tobacco the Wythes grew was never of first-rate quality, but through hard work and perseverance Thomas made a go of it.
In 1680, the first Thomas Wythe became a member of the House of Burgesses, Virginia’s first elected assembly, which sat in nearby Williamsburg. For his legislative duties he was paid two hundred pounds of tobacco, the commodity money of colonial Virginia. In the absence of a coherent system of coinage, tobacco leaf became negotiable as cash and coin. From the early 1700s, traders issued tobacco certificates with a value backed by warehouse inventories. Soon it became customary for taxes, bills of exchange, creditors and public officials to be paid either in certificates or in the leaf itself.
Despite the generosity of the burgess’s stipend, it seems that Thomas Wythe was not taken with being a legislator, for he served one session and did not offer himself for reelection. Rich in respectability, if not wealth, when he died in 1693 or 1694, he left a house and an estate that included nine slaves, four hogsheads of tobacco, six silver spoons, sundry farm animals and two tracts of land.
Thomas Wythe II, who as eldest son inherited all, achieved much during his short life. At the age of nineteen he was appointed a local justice, and soon after married widow Ann Gutherick, the wealthy daughter of a prominent gentry family. The couple produced two children before Thomas died in 1694, aged twenty-four.
The next Thomas, the father of George Wythe of this book, inherited the frugally acquired Wythe fortune, and followed the family path of public service. He was the local magistrate, a vestryman of Saint John’s Church in Hampton, briefly county sheriff, and a member of the House of Burgesses in 1718 and again from 1723 to 1726. Industrious as a tobacco farmer, and a shrewd investor, he bought a wharf on Hampton’s busy port.
In 1719, he married Margaret Walker, the daughter of George Walker, a man who owned another Hampton wharf and commanded the battery on Old Point Comfort that overlooked the entrance to Hampton Roads. Margaret’s grandfather was the celebrated preacher George Keith, a strong-willed Scot who during a turbulent life managed to antagonize Quakers and Anglicans on both sides of the Atlantic.
After being imprisoned many times in both Scotland and England for his Quaker beliefs, Keith had fled to America where, from the late 1680s, he tub-thumped his way through the middle colonies in the Quaker cause, denouncing slavery even before his own religion had officially condemned it. Always a querulous, contrary personality, he became embroiled in a doctrinal dispute with the elders in Pennsylvania. Disowned by the Quakers in 1692, he returned to England, where he eventually joined his old persecutors by being ordained in the established church.
To the astonishment and dismay of American Quakers, he re-emerged on their shores as an unbearable zealot and pamphleteer for the Society for the Propagation of the Gospel in Foreign Parts. Intent on denouncing the errors of Quaker mysticism, he traveled widely through the colonies. Keith’s change of religion split his family. His daughter, Anne, had by then married George Walker, a Quaker, yet she adopted her father’s Anglicanism. In 1703, Keith visited this family divided by religion and noted in his journal that his daughter “is fully come off from the Quakers, and is a zealous member of the Church of England, and brings up her children . . . in the Christian Religion, praised be God for it.”
He left satisfied that he had set the family on the path to the true religion, but that was not to be. Soon after, George Walker forbade his wife to attend the Church of England. Dissent was in the Keith blood, for Anne did not accept his ruling. In an act which became the talk of Williamsburg, she presented two separate petitions to the Governor’s Council complaining that her husband had “violently restrained” her and her children from attending the local Church of England.
Such a public challenge to her husband’s authority was unprecedented, and it was with great reluctance that the council granted her a hearing. In judgment, husband and wife were each handed a small victory. George Walker was ordered not to interfere with his wife’s free exercise of religion, but the council supported his right to bring up his children (who included George Wythe’s mother, Margaret) in the religion of his choosing. By all accounts, the couple reconciled, and became a tolerably harmonious family of mixed faiths. Anne continued to attend the Church of England, and her husband hosted Quaker meetings in the family home.
George Wythe had no opportunity to know his father, for he died in 1729 when George was just three. Margaret Wythe was left a widow with three children to raise alone and a plantation to manage. Supervising a workforce of slaves cannot have been easy for a woman, yet she was a Keith. It seems she was also well read, for George Keith had been a firm believer in the education of women and insisted on instruction for his daughters and granddaughters. The English clergyman and writer, Andrew Burnaby, who visited Virginia in 1759–60, reported that Wythe’s “perfect knowledge of the Greek language [was] taught him by his mother in the backwoods.”
Thomas Jefferson confirmed the story: “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.”
Some historians, skeptical of this tale of unschooled genius, suggest that Wythe was educated at the grammar school at Williamsburg’s William and Mary College, or the Eaton-Symmes Free School in Hampton, but no records exist to confirm his attendance at either. Thus it is permissible for us to imagine the homely picture of the widow Wythe sitting with her son at the kitchen table on an isolated, windswept farm in the New World, holding a Homerica before them as they joined heads to read tales of long-past adventures in a bounded sea far, far away.
Under the English law of primogeniture which applied in colonial Virginia, the first-born male child inherited his father’s land as a matter of right. All of the Wythe family understood that the eldest male, Thomas the Fourth, would inherit Chesterville upon obtaining his majority, while the younger siblings, George and Anne, would inherit nothing—and their widowed mother’s interest would be limited to dower rights of residence during her lifetime. George Wythe would need his education. As for sister Anne, her prospects, even more limited, were confined to marrying well.
George Wythe’s childhood was intimately enmeshed with the institution of slavery. A tobacco plantation required slaves, just as it needed horses and carts. For a native American weed, tobacco required a lot of rearing, and the hands to do it—not skilled hands, but many. The planters of Virginia could not imagine how commercial quantities of tobacco could be grown without slaves.
Plantation life meant labor for every waking hour the heavens gave. Tobacco seed had to be planted in its own mound of soil, the weeds hoed out all summer, and caterpillars picked off the crop daily. When leafy green, it had to be pruned, plucked, tied into bunches, and slow cured in barns. Once dry, the leaf was cut and folded into hogsheads that were rolled to the wharf to await shipment to market. In his Notes on the State of Virginia, Jefferson told the world that growing tobacco was “a culture productive of infinite wretchedness”:
Those employed in it are in a continued state of exertion beyond the powers of nature to support. Little food of any kind is raised by them; so that the men and animals on these farms are badly fed, and the earth is rapidly impoverished.
Records indicate that in the 1690s two indentured servants and nine slaves worked Chesterville, so it is unlikely that Margaret Wythe could have done with fewer slaves, and possibly she possessed many more, as by 1767, Chesterville was home to thirty-two slaves. In such an environment young George Wythe would have learned, without being taught, that racial distinction was integral to slavery: that black men and women did not come into the house unless asked, that they deferred to white people, did not attend school, wore cast-offs and coarse woolens, ate different food, and lived in the slave quarters, one-room huts ganged in a line.
Although Wythe and his brother and sister, when small, probably played with the black children of Chesterville, they soon understood that their playmates were born to serve. None of this was questioned in Elizabeth City County, Virginia: African women worked in the laundry and the kitchen, their daughters and sons worked in the fields and their babies played under the sun.
To a landless youth adrift in colonial Virginia with little wealth and few connections, three paths to a more prosperous future were open: to take orders in the Church of England, to woo an aristocrat’s daughter, or to become a lawyer. For George Wythe, his family’s complex religious background made the first unlikely, as did his own questioning mind; while being small, young and painfully shy made him unqualified for courtship. So, around 1743, at the age of sixteen or seventeen, this boy of cloistered education began legal studies.
At that time there was not a single law school in America. The wealthy studied at the English Inns of Court, while the impecunious sought a clerkship with an established attorney, or studied alone. One suspects that none but a relation would take on such an unpromising law clerk as George Wythe: his offer of employment came from Stephen Dewey, an attorney who was married to his mother’s sister and who had a thriving practice in Prince George County, upriver from Williamsburg.
He was a justice of the peace, a county representative in the House of Burgesses and king’s attorney for nearby Charles City County. Wythe would later claim that he was treated badly by his uncle and learned very little from him: Dewey was rarely in the office and neglected his instruction. Wythe, as an underling’s underling to Dewey’s law clerks, spent most of his day on a high stool, copying in flowing hand wills, writs, deeds, pleas and affidavits. Whenever there was a quiet moment—which was not often—he was able to take a book from the shelves of his master’s library, such as it was.
Dewey, like most colonial lawyers, probably owned few texts. Local legal scholarship barely existed, for English common law reigned supreme, and Sir William Blackstone had yet to write his famous Commentaries on the Laws of England. A rural lawyer in America probably had a well-thumbed copy of the Institutes of the Laws of England, by an earlier English judge, Sir Edward Coke; also, Bacon’s Abridgement, Pigott’s New Precedents in Conveyancing, and perhaps Francis’s Maxims of Equity. Occasionally, Wythe was allowed to climb down from his stool to attend the local courts, where he could not fail to observe that the judgments dispensed by Virginia’s rural magistrates bore little resemblance to the majesty of English law he had read about. On the other hand, perhaps he learned volumes about the cupidity of people, the complexity of human nature, and that law and justice were not the same thing.
After several years of clerking with neglectful Uncle Stephen, Wythe left Prince George County and returned to Chesterville. About this time his mother died. This was in 1745 or 1746. The cause and manner of her death is unknown, and it may be that he returned to his childhood home to be with her during her last days.
Upon the death of the widow Wythe, all dower rights were extinguished and George’s brother became the absolute master of the family plantation. Chastened by this experience, it is no wonder George Wythe regarded primogeniture as a perverse system. When the American Revolution finally gave him the opportunity to rid Virginia of what he regarded as archaic English laws, he would work to have primogeniture abolished.
He was now a young man of almost twenty, with little to hold him at Chesterville. His sister Anne was no longer living at home, having made a tolerably advantageous match in marrying Charles Sweney from a Tidewater family at Sewall’s Point. During his return to Chesterville, George must have spent some hours with his law books, because by early 1746 he was ready to qualify as a lawyer.
To do so he had to satisfy three prominent lawyers that he was competent in the law, and obtain from them a certificate of “probity, honesty, and good demeanor.” One of those vouching for him was Stephen Dewey. Wythe submitted the signed documents to the General Court in Williamsburg, along with his fee of twenty shillings. He may also have been required to attend for an oral examination before a board appointed by the General Court.
On February 13, 1746, he was admitted to practice in the Caroline County Court. In a ceremony of oaths, he had to subscribe to the Test1 designed to exclude Catholics from office, and swear that he had taken communion in the Church of England. He also had to swear his allegiance to George II, and—finally—that he would “truly and honestly demean myself, in the practice of an attorney, according to the best of my knowledge and ability.” Thus both cleansed and burdened, George Wythe became an attorney, bristling with the confidence and naivety of youth.
Being a lawyer in the colonial period was not necessarily a prestigious or remunerative calling. Virginia was largely an agrarian society and many a planter held that a man should speak for himself, and that those who made a profession of speaking for others were slippery and officious characters who used artificial reasoning, half-truths and unintelligible statutes to defeat the cause of justice. In some ways this hostility was understandable, as there was no such thing as a code of ethic. Lawyers frequently put in feint defenses merely to delay, or brought actions that had no basis in law. Nor was it considered improper to prepare documents for one client, then at trial switch sides and argue for an opponent.
Little wonder that in 1645 Virginia’s legislature banned professional attorneys from courts entirely. The preamble to this legislation raged in justification: “Many troublesome suits are multiplied by the unskillfulness and covetousness of attorneys, who have more intended their own profits and their inordinate lucre than the good and benefit of their clients.” Eleven years later the ban was lifted to be replaced by a regime of licensing, oaths of office, and the regulation of fees. When George Wythe commenced practice the fee for a county court appearance was pegged by law at thirty shillings, alternatively three hundred pounds of tobacco.
Finding clients was the young attorney’s main concern. Self-taught and inexperienced, Wythe faced a barren landscape. His solution was to discover a location poorly serviced by others of his profession. He applied for, and gained a position as associate in the legal practice of Zachary Lewis in Fredericksburg, Spotsylvania County, east of the Blue Ridge.
Lewis proved to be a hale man in his mid-forties, well satisfied with life—as indeed he deserved to be. A large, rambling house accommodated his large family: his wife, five sons and five daughters. Regarded as solid as a brass bull by his community, Lewis had built up an extremely profitable practice through plain dealing and cheerful bonhomie, augmented by an appointment as the King’s Attorney for the county. He had so much work, that even with his son John in the practice, he needed another to share the load.
At first Wythe was a mere bag-carrier for Lewis, though as he became more at home with procedures and the rough and tumble of rural advocacy, he was entrusted with a few minor cases. It soon became clear why Lewis had taken him on—the younger man was to travel to the distant courts in surrounding counties, initially in the company of Zachary Lewis, later on his own. Within months Wythe had been admitted to courts in Elizabeth City County, Spotsylvania County, Orange County and finally into the nether reaches of civilization in the county of Augusta. At that time Augusta County extended, at least theoretically, all the way to the Pacific Ocean—most of it was territory unknown to white men. For practical purposes it ran to the Mississippi, and included much of what is now Indiana, Illinois, Kentucky, Michigan, Ohio, West Virginia and Wisconsin.
Wythe regularly rode with Lewis on the rural circuit, in company with other lawyers traveling from place to place, with their attendant clerks and slaves leading a string of horses carrying satchels of law books, writs, files and papers. In backwoods Virginia they rode along rutted roads where morning’s ice turned to afternoon’s mud puddles. They forded swollen rivers, crossed tree-clogged creeks and waded through marshes. They were rained upon, snowed upon, and suffered from seed ticks and chiggers.
They rode through hamlets where men and women surrounded by bare-footed children peered out in dark-eyed poverty from split-timber cabins. They entered immense woods broken only by the occasional patch of corn and tobacco. Often their party would not encounter another traveler all day. They ascended the foothills of the Shenandoahs where the Scots–Irish were engaged in a thirty-year war against the silent imperious forests, and a man wielding an ax from dawn to dusk might hope to clear half an acre in a month.
At each village, Lewis and his young associate met familiar opponents in familiar courthouses, drinking afterwards with them in taverns, and rising next morning to join the troop traveling to the next courthouse to make cause all over again. Typically, they argued in courthouses of clapboards or red brick fronted by an arcaded loggia of rounded arches and a pavement of flagstones. The justices usually sat on the same day that the local market was held, and the green out front resounded with the tumult of musicians and puppeteers, slave traders, itinerant preachers, women selling butter and eggs, and farmers in bearskin coats trading horses.
In the winter months, fires were set about the courthouse grounds. Court proceedings being the premier free entertainment, they always attracted a good crowd. Ten minutes before the magistrates took the bench, the courthouse vestibule would be filled with lawyers touting for business, witnesses rehearsing their evidence, and greybeards with time on their hands queuing to give silent witness to the proceedings. At the opening of the doors, the idle and the curious would elbow in to stand at the back of the court, while the gentry took the front benches. The audience, naturally interested in what was being said about their neighbors, friends and enemies, usually remained all day—except if some poor miscreant was sentenced to a public flogging. Then they hastened outside to the whipping post in the courthouse grounds and jostled each other as they counted down the magistrate’s sentence, laid solidly on the offender’s back. When the court rose, everyone retired to the nearest taproom to discuss, over a keg of cider, rum or brandy, the relative merits of the litigants, lawyers, witnesses and the justices’ decisions.
His Majesty’s justices were the gentlemen of the county, performing voluntary service, and presiding as required. Bewigged and dressed in embroidered coats, waistcoats, lace collars and cuffs, they sat on a raised bench under the king’s arms. Most were not conversant with the finer points of the law, though knowledgeable about their neighbors, and aware of what the community thought passed for justice. If a jury was assembled to rule on a matter, it was likely that half its number could not read fluently and even fewer of them could write. This was a court of neighbors, who decided the issues according to clannish justice.
As with all young lawyers Wythe would rise, trembling but resolute, and dutifully explain to the court the impeccable legal logic which should lead it to a verdict for his client. As with most young lawyers, more often than not he lost. But he was a quick learner, and soon developed a modest persuasiveness to his presentation. Further, he began to appreciate that the justices would rarely tolerate the impertinence of words on paper challenging their sense of rectitude—flattery, folksy good humor and flaying one’s opponent was the favored way. The public gallery and the jury (the latter so often influenced by the reaction of the former) loved a virtuoso attorney who waved his hands dramatically, and possessed an actor’s range of voice and grimaces.
Lewis and Wythe worked the rural circuit for many months, and filled up their fee book with small fees for small matters. Sometimes they appeared against each other, and Wythe’s pleasure was great when the victory was his. As they rode shoulder to shoulder to the next town, they pitted their wits over again as they discussed the flow of the case and picked flaws in each other’s tactics.
Within months Wythe, much to Lewis’s delight, established himself as an attorney of competence, well capable of riding the circuit unsupervised. To Lewis’s further delight, a romance blossomed between his young associate and one of his daughters. The courtship moved at remarkable speed and, less than a year after his first arrival in Spotsylvania County, Ann Lewis and George Wythe became man and wife. Both were twenty-one.
Since food, drink and musicians were ordered for Christmastide, Zachary Lewis and his wife decided that the celebration of the Savior’s birth would be followed by a wedding the very next day. There was the customary Virginian feast for such occasions: roast pork, minced pies, custards, wine trifles and candied fruit, washed down by a bowl of rum toddy, brandy or Madeira. One supposes that during the wedding breakfast the speechifiers indulged in the expected puns, describing the newlyweds as each other’s Christmas gift, turtledoves and yuletide turkeys. Then, to the accompaniment of a French horn and violins, the guests danced a Virginian combination of elegant minuets and popular jigs and reels.
The court records which have survived from George Wythe’s time in Zachary Lewis’s employ show that, from July 1747 to September 1748, the young lawyer was very busy indeed. Although bread-and-butter matters of debt collection predominated, Wythe also argued cases in trespass, selling liquor without a license, assault and petty theft.
On his rural rounds he quickly learned that innkeepers, being the sole provider of food, drink and warmth within miles, needed to be treated civilly. Their usual fare was salted beef or ham, supplemented by duck pie or squirrel broth. Fresh vegetables were almost unknown. Cornpone toasted in hog’s lard was ubiquitous. The common drink was whiskey, applejack, and rum: if one wanted to sleep soundly it was recommended to drink several jars before retiring. Guests usually shared a room, and occasionally a bed, with a stranger who always seemed to have a snore like a file on metal.
After bedding down in awful hostelries for days on end, it was a blessing for Wythe to be invited to stay overnight at the houses of the gentry. They were a mixed bunch. Some were so devoted to their sip of rum that they tottered through the day in a stupor. Others were sporting men whose lives revolved around horseracing, foxhunting, cockfighting and gander pulling (in the latter, mounted competitors galloped past a well-greased goose suspended by its legs, and attempted to tear its head off). Others, even more boorish fellows, chortled over the pleasures to be found in the slave quarters at night.
Yet some planters were sober and retiring, and regarded an intelligent guest carrying news of the outside world as a great prize. One such planter, expecting the lawyers on their rural circuit to pass by, had his slave stand on the roadway with a lantern held high in one hand and an invitation to dine with the master in the other. On such occasions George Wythe, with his knowledge of the classics, the philosophers and literature, more than paid his way.
The young lawyer did not sleep many nights with his new wife. He was frequently absent from home and eight months after their ceremony of marriage, he attended Ann’s funeral. No information survives about the circumstances of her death, or Wythe’s reaction to it. He was a widower at the age of twenty-two.
Just as he had moved on after his mother’s passing, so now he looked again to the wider world. As soon as he was able to wind up his outstanding cases and settle his affairs with Zachary Lewis, Wythe left Fredericksburg and the family of his deceased wife. He did not return for close on twenty years. He must have parted on good terms with his parents-in-law, however, for the family relationship opened doors for him in the next chapter of his career.
1 The Test read: “I do declare that there is not any transubstantiation of ye Lord’s Supper, or in ye elements of bread and wine, at or after ye consecration thereof by any person whatsoever.”
“He was my ancient master, my earliest and best friend; and to him I am indebted for first impressions which have had the most salutary influence on the course of my life.” Thomas Jefferson on George Wythe, 1806
This is the story of George Wythe, a man determined, steadfast and courageous, described by Benjamin Rush as possessing “dove-like simplicity and gentleness of manner.” From his humble beginnings as a circuit lawyer in Virginia, Wythe was a prominent opponent of slavery and was instrumental in the creation of the constitution. His distinguished career saw him appointed the first professor of law in the United States.
Wythe witnessed most of the great events leading to America’s independence and formation as a nation and was a signatory to the Declaration of Independence. And then, in 1806, Wythe was murdered.
This book tells the story of George Wythe’s life, his amazing legacy, his role as second father to the fathers of the nation and offers a solution to the mystery of his bizarre and tragic death.
Praise for The Lost German Slave Girl
“Bailey has the gift of a novelist and a readiness to blend fact and conjecture What followed is a mystery, and an entirely fascinating one.” – Washington Post
“He has crafted a compelling tale of one woman’s complex life … and in the process he has given readers a revealing look at one of the darker periods of American history.” – Miami Herald
“Bailey, that rare scholar whose writing lives and breathes…” – Boston Globe
“Reads like a splendid legal thriller.” – Sydney Morning Herald
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John Bailey is an Australian author with seven books to his credit. Bailey’s approach to writing has been to create a strong narrative against the background of an exotic or remote location. His first book, The Wire Classroom (1969), described colonial life in New Guinea. His second, The Moon Baby (1972), was set in the future in an unnamed metropolis. His third, The White Divers of Broome (2001), concerned pearl shell diving in the coastal town of Broome in the …