Genteel Culture, Legal Education, and Constitutional Controversy in Early National Virginia
Keywords:
legal education, early national Virginia, society and culture, manners, social status, gentility, elite education, university-trained lawyers, George WytheAbstract
This article focuses on the movement to reform legal education in early national Virginia, offering a fresh perspective by examining the connection between legal education and society and culture. It challenges the notion that constitutional ideas were the primary driving force behind reforms and argues that social status and “manners” played a more significant role. Wealthy elites in Virginia associated manners with education, sending their sons to college to become gentlemen, as it secured their aspirations to gentility and their influence over society and politics. Reformers sought to capitalize on this connection by educating a generation of university-trained, genteel lawyers who could lead the state's legislature and its courts. In this sense, educational reform was genteel rather than democratic in its basic assumptions. The article examines the central figure of George Wythe and explores his influence on Virginia's leading men, including Thomas Jefferson and St. George Tucker. It delves into the student experience in Wythe's law office and at the College of William and Mary, the success of educational reforms in the central courts, and the effects on Virginia's constitutional development. The college-educated lawyers who came to dominate the legislature in the early nineteenth century used their training for politics. As these lawyers sought to strengthen the institutions their party controlled, they drove the development of constitutional doctrines like federalism and separation of powers.
References
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On the number of lawyers in the Virginia General Assembly, see Daniel P. Jordan, Political Leadership in Jefferson's Virginia (Charlottesville: University of Virginia Press, 1983), 51–57; E. Lee Shepard, “Lawyers Look at Themselves Professional Consciousness and the Virginia Bar, 1770–1850,” American Journal of Legal History 25, no. 1 (1981): 6–9. Writing about the end of his period, Shepard concludes the percentage of lawyers in the assembly was “far out of proportion to their numerical position in society.” Lawyers also constituted a majority of the states’ congressional delegation, three-fourths of which were graduates of William and Mary. O'Shaughnessy, The Illimitable Freedom of the Human Mind, 97; Jordan, Political Leadership in Jefferson's Virginia, 42–44; Richard R. Beeman, The Old Dominion and the New Nation, 1788–1801 (Lexington: University Press of Kentucky, 1972), 48.
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Gerald Leonard and Saul Cornell, The Partisan Republic: Democracy, Exclusion, and the Fall of the Founders’ Constitution (Cambridge: Cambridge University Press, 2019), 50–51, 84–92; see also Woody Holton, Unruly Americans and the Origins of the Constitution (New York: Hill and Wang, 2007). Relatedly, John Phillip Reid has described the legal views of the untrained New Hampshire lawyers as a jurisprudence of “common sense.” Reid, Controlling the Law.
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The fullest expression of antilegalism I have encountered from Virginia is an 1807 pamphlet by Thomas Jones, An Address to the People of Virginia: in Two Parts. Shewing the Danger Arising from the Unbounded Influence of Lawyers, which I address below. The pamphlet tends to confirm the dominance of educated lawyers in Virginia government. On the character of anti-lawyer sentiment in Virginia during this period, see Shepard, “Lawyers Look at Themselves Professional Consciousness and the Virginia Bar, 1770–1850,” 4–7, 10. On the democratic and anti-oligarchic rhetoric of state constitutional reform in Virginia, see Fletcher M. Green, Constitutional Development in the South Atlantic States, 1776–1860 (Chapel Hill: University of North Carolina Press, 1930), 173–76; Merrill D. Peterson, ed., Democracy, Liberty, and Property: State Constitutional Conventions of the 1820's (Indianapolis: Bobbs-Merrill Company, 1966), 272–73; Kevin R. C. Gutzman, Virginia's American Revolution: From Dominion to Republic, 1776–1840 (Lanham: Roman and Littlefield, 2007), 187–88.
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No. 78, Benjamin F. Wright, ed., The Federalist by Alexander Hamilton, James Madison, and John Jay (Cambridge: Belknap Press, 1961) [1788]. As George Wythe put this idea in 1782, in the Case of the Prisoners, where Virginia's General Assembly and Governor were at odds about the state constitution's allocation of the pardon power, the effect of a judicial proceeding was that “the pretensions of each party are fairly examined, their respective powers ascertained, and the boundaries of authority peaceably established.” Commonwealth v. Caton (“Case of the Prisoners”), Call, Reports of Cases Argued and Decided in the Court of Appeals of Virginia, vol. 4, 7–8 [1782].
18
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19
Isaac, The Transformation of Virginia, 1740–1790, 131; Phillip Hamilton, The Making and Unmaking of a Revolutionary Family: The Tuckers of Virginia, 1752–1830 (Charlottesville: University of Virginia Press, 2003), 19–20; Rozbicki, The Complete Colonial Gentleman, 50–58.
20
Smith, “Virginia Lawyers, 1680–1776,” 82, 85, 92.
21
Littleton Waller Tazewell, “An Account of the History of the Tazewell Family” (1823), 133–34, Special Collections Research Center, Swem Library, College of William and Mary.
22
Tazewell, “An Account of the History of the Tazewell Family,” 134–35.
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Tazewell, “An Account of the History of the Tazewell Family,” 135.
24
“Notes for a Biography of George Wythe,” in Looney, Papers of Thomas Jefferson, Retirement Series, Volume 16, 230.
25
Tazewell, “An Account of the History of the Tazewell Family,” 129.
26
Henry Clay to B. B. Minor, May 3, 1851, B. B. Minor, ed., 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 (Richmond: J. W. Randolph, 1852), xxxv.
27
William P. DuVal to Thomas Jefferson, August 29, 1813; J. Jefferson Looney, ed., Papers of Thomas Jefferson, Retirement Series, Volume 6: 11 March to 27 November 1813 (Princeton: Princeton University Press, 2010), 460.
28
George Wythe Munford, The Two Parsons: Cupid's Sports; The Dream; and The Jewels of Virginia (Richmond: J. D. K. Sleight, 1884), 416. On the reliability of this source, see the judgment in Julian Parks Boyd, The Murder of George Wythe (privately printed for the Philobiblon Club, 1949), 10, 14–15. On the transformation in dress among the gentry during the eighteenth century, see G. S. Wilson, Jefferson on Display: Attire, Etiquette, and the Art of Presentation (University of Virginia Press, 2018), 12–13.
29
Hugh Blair Grigsby, The History of the Virginia Federal Convention of 1788, ed. R. A. Brock, vol. 1 (Richmond: Virginia Historical Society, 1890), 34.
30
Henry Clay to B. B. Minor, May 3, 1851, Minor, Decisions of Cases in Virginia by the High Court of Chancery, xxxv.
31
Benjamin Rush, A Memorial Containing Travels Through Life, ed. Louis Alexander Biddle (Lanorie: Louis Alexander Biddle, 1905), 114.
32
Wilson, Jefferson on Display, 5–6; Maurizio Valsania, Jefferson's Body: A Corporeal Biography (Charlottesville: University of Virginia Press, 2017).
33
Thomas Hunter, “The Teaching of George Wythe,” in The History of Legal Education in the United States: Commentaries and Primary Sources, ed. Steve Sheppard, vol. 1 (Pasadena: Salem Press, 1999), 142.
34
Thomas Jefferson to John Page, December 25, 1762, Julian P. Boyd, ed., The Papers of Thomas Jefferson, Volume 1: 1760–1776 (Princeton: Princeton University Press, 1950), 5.
35
Thomas Jefferson to Louis H. Gardin, January 15, 1815; J. Jefferson Looney, ed., Papers of Thomas Jefferson, Retirement Series, Volume 8, October 1814 to August 1815 (Princeton: Princeton University Press, 2011), 200; “Notes on Early Career,” in Looney, Papers of Thomas Jefferson: Retirement Series, Volume 17, 310.
36
Emory G. Evans, A “Topping People”: The Rise and Decline of Virginia's Old Political Elite, 1680–1790 (Charlottesville: University of Virginia Press, 2009), 139.
37
Memoirs of T. J. Randolph, quoted in Dumas Malone, Jefferson and His Time, Volume 1, Jefferson the Virginian (Boston: Little, Brown & Co., 1948), 87.
38
O'Shaughnessy, The Illimitable Freedom of the Human Mind, 11.
39
O'Shaughnessy, The Illimitable Freedom of the Human Mind, 23–24, 28–29. On Jefferson's tendency to imagine himself as a “patriarch” presiding over his family and hosting his intimate friends, and the connection to his conception of republican politics, see Peter S. Onuf, “Making Sense of Jefferson,” in The Mind of Thomas Jefferson (Charlottesville: University of Virginia Press, 2007), 33; Annette Gordon-Reed and Peter S. Onuf, Most Blessed of the Patriarchs: Thomas Jefferson and the Empire of the Imagination (New York: Liveright Publishing, 2016), 28–40; Matthew Crow, Thomas Jefferson, Legal History, and the Art of Recollection (Cambridge: Cambridge University Press, 2017), 88–89, 105.
40
George Wythe to St. George Tucker, October 23, 1792, Tucker-Coleman Papers, Special Collections Research Center, Swem Library, College of William and Mary.
41
Boonshoft, Aristocratic Education and the Making of the American Republic, 26.
42
“Notes for a Biography of George Wythe,” Looney, Papers of Thomas Jefferson, Retirement Series, Volume 16, 230.
43
Jefferson recalled Wythe destroying copies of arguments he had delivered in cases. Thomas Jefferson to John Tyler, November 25, 1810; J. Jefferson Looney, ed., Papers of Thomas Jefferson, Retirement Series, Volume 3: August 1810 to June 1811 (Princeton: Princeton University Press, 2006), 228. Some commentators have doubted that Wythe wrote his arguments. Bernard Schwartz, Barbara Wilcie Kern, and Richard B. Bernstein, eds., Thomas Jefferson and Bolling V. Bolling: Law and the Legal Profession in Pre-Revolutionary America (San Marino: Huntington Library, 1997), 86.
44
Sallie E. Marshall Hardy, “Some Virginia Lawyers of the Past and Present,” The Green Bag 10 (1898): 15.
45
Hugh Blair Grigsby, The Virginia Convention of 1776 (Richmond: J. W. Randolph, 1855), 127.
46
William Wirt, Sketches of the Life and Character of Patrick Henry, 9th ed. (Philadelphia: Desilver, Thomas & Co., 1836), 66.
47
Quoted in Bryson, “The History of Legal Education in Virginia,” 169–70.
48
William Short to Greenbury Ridgely, December 11, 1816, George Green Shackelford, ed., “To Practice Law: Aspects of the Era of Good Feelings Reflected in the Short-Ridgely Correspondence, 1816–1821,” Maryland Historical Magazine 64 (1969): 349–50.
49
Thomas Jefferson to John Tyler, June 17, 1812, J. Jefferson Looney, ed., Papers of Thomas Jefferson, Retirement Series, Volume 5, May 1812 to March 1813 (Princeton: Princeton University Press, 2008), 136.
50
David Thomas Konig and Michael P. Zuckert, eds., Papers of Thomas Jefferson, Second Series: Jefferson's Legal Commonplace Book (Princeton: Princeton University Press, 2019), 10–11.
51
John Brown to William Preston, January 26, 1780 and February 15, 1780, Steve C. Sturz, ed., “Glimpses of Old College Life,” William and Mary Quarterly 9 (1900): 75–76.
52
John Brown to William Preston, February 17, 1780, Sturz, “Glimpses of Old College Life,” 76.
53
Marshall's commonplace book was unfinished, and historians have surmised that he left before the semester was over. Marshall's notes appear to be largely excerpts of Matthew Bacon's Abridgement, an English treatise that was then circulating in Virginia libraries. Charles T. Cullen, “New Light on John Marshall's Legal Education and Admission to the Bar,” American Journal of Legal History 16, no. 4 (1972): 348; William F. Swindler, “John Marshall's Preparation for the Bar-Some Observations on His Law Notes,” American Journal of Legal History 11, no. 2 (1967): 208; Law Notes, Herbert Johnson, ed., Papers of John Marshall, Volume 1 (Chapel Hill: University of North Carolina Press, 1974), 37–40.
54
Wythe's Lost Papers, Wythepedia; John Tyler to Thomas Jefferson, November 12, 1810, Jefferson-Tyler Correspondence, Wythepedia; Thomas Jefferson to John Tyler, November 25, 1810, Papers of Thomas Jefferson, Retirement Series, Volume 3, 228.
55
Linda K. Tesar, “The Library Reveals the Man: George Wythe, Legal and Classical Scholar,” in “Esteemed Bookes of Lawe” and the Legal Culture of Early Virginia, eds. Warren M. Billings and Brent Tarter (Charlottesville: University of Virginia Press, 2017), 125.
56
“Notes for a Biography of George Wythe,” Looney, Papers of Thomas Jefferson, Retirement Series, Volume 16, 229. Further references are collected in Tesar, “The Library Reveals the Man,” 127.
57
Richard J. Hoffman, “Classics in the Courts of the United States, 1790–1800,” American Journal of Legal History 22 (1978): 55, 60. On the use of ancient sources by other Virginian judges, see W. Hamilton Bryson, “The Use of Roman Law in Virginia Courts,” American Journal of Legal History 28, no. 2 (1984): 139. On New York Chancellor James Kent's study of Roman literature, see Amalia D. Kessler, Inventing American Exceptionalism: The Origins of American Adversarial Legal Culture, 1800–1877 (New Haven: Yale University Press, 2017), 42–43.
58
Minor, Decisions of Cases in Virginia by the High Court of Chancery, 231. Jefferson took a similar view of the civil law and thought its principles might be used in Chancery. Thomas Jefferson to John Tyler, June 17, 1812, Looney, Papers of Thomas Jefferson, Retirement Series, Volume 5, 136.
59
Boonshoft, Aristocratic Education and the Making of the American Republic, 24–25.
60
John Brown to William Preston, July 6, 1780, Sturz, “Glimpses of Old College Life,” 79–80.
61
William Short to Greenbury Ridgely, December 11, 1816, Shackelford, “To Practice Law,” 349.
62
William Short to Greenbury Ridgely, November 10, 1817, Shackelford, “To Practice Law,” 367–68; Lyon Gardiner Tyler, “Original Records of the Phi Beta Kappa Society,” William and Mary Quarterly 4, no. 4 (1896): 236.
63
Thomas Lee Shippen to parents, February 4, 1784, quoted in Imogene E. Brown, American Aristides: A Biography of George Wythe (Rutherford: Fairleigh Dickinson University Press, 1981), 204.
64
Henry Clay to B. B. Minor, May 3, 1851, Minor, Decisions of Cases in Virginia by the High Court of Chancery (“upright”); Thomas Jefferson to William DuVal, June 14, 1806, Dice Robins Anderson, “The Teacher of Jefferson and Marshall,” South Atlantic Quarterly 15, no. 4 (October 1916): 343 (“purer”); “Notes for a Biography of George Wythe,” Looney, Papers of Thomas Jefferson, Retirement Series, Volume 16 (“disinterestedness”); Hugh Blair Grigsby, Discourse on the Life and Character of the Hon. Littleton Waller Tazewell (Norfolk, 1860), 18 (“deeply learned”); Andrew Burnaby, “Travels Through the Middle Settlements in North America,” in Burnaby's Travels Through North America (London: T. Payne, 1798), 53 n. (“inflexible rectitude”).
65
Charles Warren, A History of the American Bar (Boston: Little, Brown & Co., 1911), 344. See also “Wythe the Teacher,” Wythepedia.
66
St. George Tucker, “Journal of His Voyage to Bermuda,” August 10, 1773, quoted in Hamilton, The Making and Unmaking of a Revolutionary Family, 22.
67
Thomas Tudor Tucker to St. George Tucker, June 22, 1771, id218848, Box 1, Folder 5, Tucker–Coleman Papers, 01/Mss. 40 T79. Special Collections Research Center, Swem Library, College of William and Mary.
68
Henry Tucker, Jr. to St. George Tucker, July 30, 1772, id219900, Box 1, Folder 10, Tucker–Coleman Papers, 01/Mss. 40 T79. Special Collections Research Center, Swem Library, College of William and Mary.
69
Henry Tucker to St. George Tucker, November 30, 1771, id218856, Box 1, Folder 5, Tucker–Coleman Papers, 01/Mss. 40 T79. Special Collections Research Center, Swem Library, College of William and Mary; George Bascome to St. George Tucker, March 4, 1772, id219716, Box 1, Folder 8, Tucker–Coleman Papers, 01/Mss. 40 T79. Special Collections Research Center, Swem Library, College of William and Mary.
70
See the description of Tucker's letters home in Lowe, Murder in the Shenandoah, 34.
71
Hamilton, The Making and Unmaking of a Revolutionary Family, 28.
72
Quoted in Hamilton, The Making and Unmaking of a Revolutionary Family, 43.
73
Alan Taylor, The Internal Enemy: Slavery and the War in Virginia, 1774–1832 (New York: Norton, 2013), 30–33; Smith, “Virginia Lawyers, 1680–1776,” 91. On Tucker's disappointed ambitions to be a planter, see Hamilton, The Making and Unmaking of a Revolutionary Family, 3; Lowe, Murder in the Shenandoah, 45.
74
Charles T. Cullen, “St. George Tucker and Law in Virginia” (PhD diss., University of Virginia, 1971), 87.
75
St. George Tucker to Francis Tucker, April 4, 1786, quoted in Cullen, “St. George Tucker and Law in Virginia,” 78. The fullest account of Tucker, Frances Randolph, and their family is found in Lowe, Murder in the Shenandoah; and Hamilton, The Making and Unmaking of a Revolutionary Family.
76
W. Hamilton Bryson, ed., Miscellaneous Virginia Law Reports, 1784–1809 […] (Dobbs Ferry: Oceana Publications, 1992), Introduction; Charles F. Hobson, ed., St. George Tucker's Law Reports and Selected Papers, 1782–1825, vol. 1 (Chapel Hill: University of North Carolina Press, 2013), General Introduction and Notebook 1; Daniel Call, Reports of Cases Argued and Adjudged in the Court of Appeals, vol. 3 (Richmond: Thomas Nicolson, 1801), 507–98.
77
Bower v. McCampbell, October 27, 1786, Hobson, St. George Tucker's Law Reports and Selected Papers, 1782–1825, vol. 1, 143.
78
“In the court of Appeals,” November 10, 1786, Hobson, St. George Tucker's Law Reports and Selected Papers, 1782–1825, vol. 1, 145–46.
79
Livingston v. Upshaw, October 27, 1786, Hobson, St. George Tucker's Law Reports and Selected Papers, 1782–1825, vol. 1, 143.
80
Paterson v. Baird, April 9, 1787, Hobson, St. George Tucker's Law Reports and Selected Papers, 1782–1825, vol. 1, 156.
81
Gregory Ablavsky, “Comment: Making Indians ‘White’: The Judicial Abolition of Native Slavery in Revolutionary Virginia and Its Racial Legacy,” University of Pennsylvania Law Review 159 (2011): 1487–94. Professor Ablavsky identified the issue as being definitively resolved by the Court of Appeals’ final disposition in Pallas v. Hill.
82
Hannah & others against Davis, April 20, 1787, in Hobson, St. George Tucker's Law Reports and Selected Papers, 1782–1825, vol. 1, 166–68; Tucker's Law Reports, 1:25. For Tucker's subsequent decision in the Court of Appeals case of Hudgins v. Wright, which cites Hannah v. Davis, but rejects George Wythe's suggestion that the Declaration of Rights made every person born in Virginia free, see Hudgins v. Wrights, in William W. Hening and William Munford, eds., Reports of Cases Argued and Determined in the Supreme Court of Appeals of Virginia […], vol. 1 (Flatbush: I. Riley, 1809), 137–38.
83
Robert J. Steinfeld, “To Save the People from Themselves”: The Emergence of American Judicial Review and the Transformation of Constitutions (Cambridge: Cambridge University Press, 2021), 175–84, 195–208; Phillip Hamburger, Law and Judicial Duty (Cambridge: Harvard University Press, 2008), 487–96; William Michael Treanor, “The Case of the Prisoners and the Origins of Judicial Review,” University of Pennsylvania Law Review 143 (1994), 494–500. The best account of the efforts to reform the county courts by expanding the jurisdiction of judges sitting on the central courts is in Roeber, Faithful Magistrates and Republican Lawyers, 160–202.
84
This was reported as the “Cases of the Judges of the Court of Appeals.” For the assembly's response, see Hamburger, Law and Judicial Duty, 571.
85
Hobson, St. George Tucker's Law Reports and Selected Papers, 1782–1825, 2013, vol. 3, 1741–42 (emphasis added).
86
Hobson, St. George Tucker's Law Reports and Selected Papers, 1782–1825, vol. 3, 1744–45. Tucker calls the Virginia Convention that enacted the 1776 constitution a “political Legislature,” and contrasts it with the General Assembly, a “civil Legislature.”
87
Case of the Prisoners, Reports of Cases Argued and Decided in the Court of Appeals of Virginia, 7–8.
88
Kamper v. Hawkins, 1 Va. Cas. 20, 78–79 (Va. 1793).
89
Matthew Steilen, “Judicial Review and Non-Enforcement at the Founding,” University of Pennsylvania Journal of Constitutional Law 17 (2014): 556–59. For an argument that “expounding” had long been a duty attached to the judicial office, see Hamburger, Law and Judicial Duty, 219–20.
90
Thomas Jefferson to George Wythe, March 1, 1779, Julian P. Boyd, ed., The Papers of Thomas Jefferson, Volume 2: January 1777 to June 1779 (Princeton: Princeton University Press, 1950), 235.
91
Henry Clay to B. B. Minor, May 3, 1851, Minor, Decisions of Cases in Virginia by the High Court of Chancery, xxxiv.
92
Grigsby, The Virginia Convention of 1776, 121.
93
Quoted in Brown, American Aristides, 70.
94
“With your lordship's assistance?” Wythe is said to have retorted. Lyon Gardiner Tyler, “George Wythe, 1726–1806,” in Great American Lawyers, vol. 1, ed. William Draper Lewis (Philadelphia: John C. Winston, 1907), 74.
95
Thomas Jefferson to Ralph Izard, July 17, 1788, Julian P. Boyd, ed., Papers of Thomas Jefferson, Volume 13: March–7 October 1788 (Princeton: Princeton University Press, 1956), 372. For similar remarks from Jefferson about Wythe, made after Wythe's death, see “Notes for a Biography of George Wythe,” Looney, Papers of Thomas Jefferson, Retirement Series, Volume 16, 229–32.
96
Cullen, “St. George Tucker and Law in Virginia,” 88.
97
St. George Tucker, “Draught of a Letter Intended for Richard Rush,” Geo. P. Coleman, ed., “Randolph and Tucker Letters,” Virginia Magazine of History and Biography 42, no. 3 (1934): 220; Call, Reports of Cases Argued and Decided in the Court of Appeals of Virginia, vol. 4, xxvi–xvix.
98
Hobson, St. George Tucker's Law Reports and Selected Papers, 1782–1825, vol. 1, 89–90, 101; Timothy S. Huebner, The Southern Judicial Tradition: State Judges and Sectional Distinctiveness, 1790–1890 (Athens: University of Georgia Press, 1999), 19–20; F. Thornton Miller, Juries and Judges versus the Law: Virginia's Provincial Legal Perspective, 1783–1828 (Charlottesville: University of Virginia Press, 1994), 69–73.
99
This colleague was John Tyler, who preceded Tucker on the General Court and the United States District Court. Lyon G. Tyler, The Letters and Times of the Tylers, vol. 1 (Richmond: Whittet & Shepperson, 1884), 260.
100
Hoffman, “Classics in the Courts of the United States, 1790–1800,” 65. The practice was not unique to Wythe; as legal historian Amalia Kessler has described, early American chancellors thought “Roman civil law” to be an important model. Kessler, Inventing American Exceptionalism, 40–41.
101
Julian P. Boyd, ed., Papers of Thomas Jefferson, Volume 15: 27 March to 30 November 1789 with Supplement, 19 October 1772 to 7 February 1790 (Princeton: Princeton University Press, 1958), 156.
102
Thomas Jones, An Address to the People of Virginia: in Two Parts. Shewing the Danger Arising from the Unbounded Influence of Lawyers … (Richmond, 1807), 22–23.
103
William Short to Greenbury Ridgely, December 11, 1816, Shackelford, “To Practice Law” 349–50.
104
William Short to Greenbury Ridgely, January 30, 1817, Shackelford, “To Practice Law” 352.
105
Taylor, Thomas Jefferson's Education, 35–42.
106
O'Shaughnessy, The Illimitable Freedom of the Human Mind, 214–20; Taylor, Thomas Jefferson's Education, 24–31.
107
Kenneth S. Greenberg, Honor and Slavery: Lies, Duels, Noses, Masks, Dressing as a Woman, Gifts, Strangers, Humanitarianism, Death, Slave Rebellions, the Proslavery Argument, Baseball, Hunting, and Gambling in the Old South (Princeton: Princeton University Press, 1996), 7–12; Bertram Wyatt-Brown, Southern Honor: Ethics and Behavior in the Old South (Oxford: Oxford University Press, 2007), 57.
108
Taylor, Thomas Jefferson's Education, 75–76.
109
See Joanne B. Freeman, The Field of Blood: Violence in Congress and the Road to Civil War (New York: Farrar, Straus and Giroux, 2018), 76.
110
Taylor, Thomas Jefferson's Education, 79–80; Jay Fliegelman, Declaring Independence: Jefferson, Natural Language & the Culture of Performance (Stanford: Stanford University Press, 1993), 28–29, 34 (drawing a connection between the growing interest in rhetoric and parliamentary governance); Peter J. Aschenbrenner, British and American Foundings of Parliamentary Science, 1774–1801 (New York: Routledge, 2018), 79 (noting Jefferson's understanding that the “potential for violence among members was always present in the legislature”).
111
Lorri Glover, Southern Sons: Becoming Men in the New Nation (Baltimore: Johns Hopkins Press, 2007), 59–63, 65–72; Jon L. Wakelyn, “Antebellum College Life and the Relations Between Fathers and Sons,” in The Web of Southern Social Relations: Women, Family, and Education, eds. Jon L. Wakelyn, R. Frank Saunders, and Walter J. Fraser (Athens: University of Georgia Press, 1985), 118.
112
Thomas Jefferson to Thomas Jefferson Randolph, November 24, 1808, Manuscript/Mixed Material, Library of Congress, https://www.loc.gov/item/mtjbib019337/. An earlier letter to nephew Peter Carr advised the young man to ask “how you would act were all the world looking at you.” Thomas Jefferson to Peter Carr, August 19, 1785, Boyd, Papers of Thomas Jefferson, Volume 8: 25 February to 31 October 1785, 405–8.
113
Jane Carson, James Innes and His Brothers of the F.H.C. (Williamsburg: Colonial Williamsburg, 1965); “The Flat Hat Club,” William and Mary Quarterly 25, no. 3 (1917): 161–64.
114
James Innes to St. George Tucker, November 11, 1773, id221468, Box 2, Folder 5, Tucker–Coleman Papers, 01/Mss. 40 T79, Special Collections Research Center, Swem Library, College of William and Mary.
115
Quoted in Taylor, Thomas Jefferson's Education, 35–36, 39–40.
116
Scott Taylor Morris, “Southern Enlightenment: Reform and Progress in Jefferson's Virginia” (PhD diss., Washington University, 2014), 50.
117
Quoted in J. E. Morpurgo, Their Majesties’ Royall Colledge: William and Mary in the Seventeenth and Eighteenth Centuries (Williamsburg: College of William and Mary, 1976), 212.
118
Jones, An Address to the People of Virginia, 1, 6, 13.
119
Thomas Jefferson to Benjamin Austin, January 9, 1816, J. Jefferson Looney, ed., Papers of Thomas Jefferson, Retirement Series, Volume 9: September 1815 to April 1816 (Princeton: Princeton University Press, 2012), 333–37.
120
Jones, An Address to the People of Virginia, 5.
121
Thomas Jefferson to Thomas Cooper, March 9, 1822, Library of Congress, Manuscript/Mixed Material, https://www.loc.gov/item/mtjbib024316/.
122
[William Wirt], The Letters of the British Spy, 3rd ed. (Richmond: Samuel Pleasants, 1805), 34–35.
123
Wythe's letter of resignation is quoted in Brown, American Aristides, 222–23.
124
Thomas Jefferson to Ralph Izard, July 17, 1788, Boyd, Papers of Thomas Jefferson, Volume 13: March–7 October 1788, 372.
125
Taylor, Thomas Jefferson's Education, 90–91.
126
The best account of Wythe's murder, including some speculation beyond the reach of our evidence, can be found in Boyd, The Murder of George Wythe.
127
See O'Shaughnessy, The Illimitable Freedom of the Human Mind, 41–57.
128
Thomas Jefferson to John Holmes, April 22, 1820, J. Jefferson Looney, ed., Papers of Thomas Jefferson, Retirement Series, Volume 15: 1 September 1819 to 31 May 1820 (Princeton: Princeton University Press, 2018), 550–51.
129
Thomas Jefferson to James Breckinridge, February 15, 1821, Looney, Papers of Thomas Jefferson, Retirement Series, Volume 16, 611–13.
130
Thomas Jefferson to John Taylor, February 14, 1820, Looney, Papers of Thomas Jefferson, Retirement Series, Volume 3, 611.
131
O'Shaughnessy, The Illimitable Freedom of the Human Mind, 198, 206. O'Shaughnessy does not read Jefferson's letters on the need for a southern university as evidence of his intention to establish a pro-slavery institution. Ibid., 105–6. For a contrary interpretation of the evidence, see Glover, Southern Sons, 52–56.
132
Legislative debates were published in Virginia newspapers and became an important part of the period print culture. See, e.g., Morris, “Southern Enlightenment,” 166.
133
Louis Hartz, “The Reactionary Enlightenment: Southern Political Thought before the Civil War,” Western Political Quarterly 5, no. 1 (1952), 31–39. For reactionary Enlightenment as a frame for interpreting Virginia society, see Morris, “Southern Enlightenment,” 1–20.
134
John R. Howe, Jr., “Republican Thought and Political Violence of the 1790s,” American Quarterly 19, no. 2 (1967): 149.
135
Thomas Jefferson to George Washington, September 9, 1792, John Catanzariti, ed., Papers of Thomas Jefferson, Volume 24: 1 June–31 December 1792 (Princeton: Princeton University Press, 1990), 351–60.
136
Duke de la Rouchefoulcauld Liancourt, Travels through the United States of North America, 2nd ed., vol. 4 (London: R. Phillips, 1800), 330–31.
137
Thomas Paine to George Washington, July 30, 1796, David R. Hoth and William M. Ferraro, eds., Papers of George Washington, Presidential Series, Volume 20: 1 April–21 September 1796 (Charlottesville: University of Virginia Press, 2019), 515–41.
138
“Report Relative to a Provision for the Support of Public Credit,” January 9, 1790, The Papers of Alexander Hamilton, vol. 6, December 1789–August 1790, ed. Harold C. Syrett (New York: Columbia University Press, 1962), 51, 80.
139
John Marshall, The Life of George Washington […], vol. 2 (Philadelphia: James Crissy, 1832), 192; Albert J. Beveridge, The Life of John Marshall, Volume II: Politician, Diplomatist, Statesman, 1789–1801 (Boston: Houghton Mifflin, 1944), 54–55.
140
Journal of the House of Delegates of the Commonwealth of Virginia Begun … [October 1790] (Richmond: John Dixon, 1791), 36.
141
Miller, Juries and Judges versus the Law, 48; Lance Banning, The Jeffersonian Persuasion: Evolution of a Party Ideology (Ithaca: Cornell University Press, 1978), 136, 150–52.
142
William Waller Hening, ed., Statutes at Large of Virginia, vol. 13 (Philadelphia: Thomas Desilver, 1823), 234–35, 237–39; Ames, State Documents on Federal Relations, 5–7; Journal of the House of Delegates of the Commonwealth of Virginia Begun …. [October 1790], 81–82.
143
Brent Tarter, The Grandees of Government: The Origins and Persistence of Undemocratic Values in Virginia (Charlottesville: University of Virginia Press, 2013), 17, 127–35.
144
John E. Selby, The Revolution in Virginia, 1775–1783 (Williamsburg: Colonial Williamsburg, 1988), 45–54; Charles Ramsdell Lingley, The Transition in Virginia from Colony to Commonwealth, vol. 36, Studies in History, Economics and Public Law (New York: Columbia University Press, 1910), 21, 83–84, 110–57.
145
Beeman, The Old Dominion and the New Nation, 1788–1801, 44; Charles Sackett Sydnor, American Revolutionaries in the Making: Political Practices in Washington's Virginia (New York: The Free Press, 1952), 98.
146
Revised Petition to the Virginia House of Delegates, August 7–September 7, 1797, Barbara B. Oberg, ed., Papers of Thomas Jeferson, Volume 29: 1 March 1796–31 December 1797 (Princeton: Princeton University Press, 2002), 499–504.
147
Randolph, The Virginia Report of 1799–1800, 41–44.
148
Randolph, The Virginia Report of 1799–1800, 160.
149
Fisher Ames in the U.S. House of Representatives, February 3, 1791, quoted in H. Jefferson Powell, “The Political Grammar of Early Constitutional Law,” North Carolina Law Review 71 (1993): 998–99.
150
Randolph, The Virginia Report of 1799–1800, 30.
151
On the use of lawyer's techniques by Republicans during these debates, see Powell, “The Principles of ’98,” 730.
152
Resolutions of Virginia of December 21, 1798, Resolutions of the Kentucky Legislature, and [Counter-Resolution of the] State of Rhode Island and Providence Plantations, all in The Virginia Report of 1799–1800, 22–23, 162–67, 169. For an account of the state legislature in Jefferson's constitutional thought, see Gerald Leonard, “Jefferson's Constitutions,” in Constitutions and the Classics: Patterns of Constitutional Thought from John Fortescue to Jeremy Bentham, ed. Denis Galligan (Oxford: Oxford University Press, 2014), 369–88.
153
Randolph, The Virginia Report of 1799–1800, 22–23.
154
Aschenbrenner, British and American Foundings of Parliamentary Science, 79, 162.
155
Garritt Minor to William Cabell, March 9, 1832, quoted in Morris, “Southern Enlightenment,” 171.
156
Freeman, The Field of Blood, 4–5.
157
McCulloch v. Maryland, 17 U.S. 316, 401 (1819).
158
Call, Reports of Cases Argued and Decided in the Court of Appeals of Virginia, vol. 4, 7–8.
159
The Documentary History of the Ratification of the Constitution, vol. 10, Ratification by the States: Virginia, No. 3, eds. John P. Kaminski, Gaspare J. Saladino, et al. (Madison: University of Wisconsin Press, 1993), 1432.
160
The Papers of John Marshall, vol. 4, Correspondence and Papers, January 1799–October 1800, ed. Charles T. Cullen (Chapel Hill: University of North Carolina Press, 1987), 95–96 (“assume a legal form”).
161
Stewart Jay, Most Humble Servants: The Advisory Role of Early Judges (New Haven: Yale University Press, 1997). For an interpretation of the decline of advisory opinions that focuses on jurisprudential developments rather than American politics, see Christian R. Burset, “Advisory Opinions and the Problem of Legal Authority,” Vanderbilt Law Review 74 (2021), 623.
162
See, e.g., Marbury v. Madison, 5 U.S. 137, 164–66 (1803).
163
Hylton v. United States, 3 U.S. (3 Dall.) 136 (1796); Fletcher v. Peck, 10 U.S. (6 Cranch) 48; Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304 (1816).
164
Robertson, Lindsay G., “A Mere Feigned Case: Rethinking the Fletcher v. Peck Conspiracy and Early Republican Legal Culture Symposium,” Utah Law Review 2000, no. 2 (2000): 256–62Google Scholar; Hobson, Charles F., “John Marshall and the Fairfax Litigation: The Background of Martin v. Hunter's Lessee,” Journal of Supreme Court History 21, no. 2 (1996): 39–40Google Scholar (describing the use of ejectment for similar purposes).
165
William Blackstone and St. George Tucker, Blackstone's Commentaries: With Notes of Reference to the Constitution and Laws, of the Federal Government of the United States, and of the Commonwealth of Virginia, vol. 4 (Philadelphia: William Young Birch and Abraham Small, 1803), 451–52.
166
Pfander, James E., Cases Without Controversies: Uncontested Adjudication in Article III Courts (Oxford: Oxford University Press, 2021), 23, 25CrossRefGoogle Scholar; Russell Wheeler, “Extrajudicial Activities of the Early Supreme Court,” Supreme Court Review, 1973, 131–39. For an exploration of why there are few records of the use of the feigned issue in federal litigation, see Stephen E. Sachs, “The Feigned Issue in the Federal System” (2007), 2–3.
167
Some Federalist lawyers were repeat players in contrived cases. Jared Ingersoll, for example, appeared in Hylton, Pennington v. Coxe, 6 U.S. (2 Cranch) 16 (1804); and Magniac v. Thomson, 32 U.S. 348 (1833). Contriving legal jurisdiction was not a strategy limited to Federalists. See, for example, Edward Livingston to James Madison, May 6, 1808, Founders Online, National Archives, Early Access Document. The practice only seems to have been overtly controversial in Fletcher v. Peck, a case whose partisan dimension was pronounced. The partisan character of the case may explain, as well, Justice William Johnson's objections to hearing it. 10 U.S. (6 Cranch) at 147.
168
41 U.S. 539, 609 (1842).
169
[Spencer Roane,] No. IV, Gunther, Gerald, John Marshall's Defense of McCulloch v. Maryland (Stanford: Stanford University Press, 1969), 148–49Google Scholar. For Madison's remarks, see Randolph, The Virginia Report of 1799–1800, 196.
170
[Spencer Roane,] No. I, Gunther, John Marshall's Defense of McCulloch v. Maryland, 109.
171
Thomas Jefferson to William Johnson, June 12, 1823, Manuscript/Mixed Material, Library of Congress, https://www.loc.gov/item/mtjbib024682/. On Marshall's methods, see Charles F. Hobson, The Great Chief Justice: John Marshall and the Rule of Law (Lawrence: University Press of Kansas, 1996), 32–36; G. Edward White, The Marshall Court and Cultural Change, 1815–1835, History of the Supreme Court of the United States, vols. 3–4 (New York: MacMillan, 1988), 196–98.
