Preparing to be a Gentleman Lawyer

Schooling played an important role in colonial Virginia. It was necessary for developing the deportment and liberal habits of mind that conveyed an impression of gentility, an image especially important to leading colonials, whose social status in the larger British empire was uncertain.Footnote ¹⁹ The Lees of Westmoreland County, long one of Virginia's great families, hired a tutor to begin educating their young sons. The Rev. Mr. Craig boarded with the Lees at Stratford Hall and taught their sons in a red brick schoolhouse on the plantation property, beginning each weekday before breakfast and concluding around 5 p.m. This was a “private school,” that is, a school operated for the children of a single family or group of families. Under Craig, the Lee boys were instructed in reading and writing, as well as ancient languages, modern languages, and biblical exegesis. But Craig was also charged with developing their morals, deportment, and discipline, and it was for this reason that he accompanied the family to social events and ate meals with them.Footnote ²⁰

We know few details about the curriculum tutors delivered. It seems likely that studies took a meandering course, even under the very best of teachers. George Wythe, both during his service as Professor of Law and Police and as Chancellor, boarded and taught a number of boys, including twelve-year-old Littleton Waller Tazewell, who went on to serve as governor of Virginia and a member of the U.S. Senate. Writing years later, Tazewell recalled how his morning lessons began. Upon entering the room where Wythe was working, the teacher would pull “some Greek book” from the shelf, open it “at random,” and ask him to translate “the first passage that caught his eye.” The afternoon was dedicated to algebra or to science experiments. In the evening, Tazewell would be asked to read aloud from a work of literature; inevitably, he recalled, the reading would suggest “some anecdote” to Wythe, who, it seemed to the child, possessed “a stock almost inexhaustible” of digressions.Footnote ²¹

As an adult Tazewell admitted to doubts about Wythe's technique. It might have worked on someone older or “more advanced,” he thought, “but in my situation it was objectionable in many respects.” The subjects were beyond his comprehension; the “irregular course” of translations made it impossible to advance in Greek or Latin. What Tazewell did learn, he confessed, was a certain “stratagem” for avoiding the worst: by artfully placing a book in Wythe's study the night before, his teacher would be likely to select it the next day for the morning's “impromptu” translations.Footnote ²²

At least at Tazewell's age of 12, it seems likely that the most important subject taught was not Greek, algebra, or literature, but manners. In Tazewell's case, despite his academic struggles, Wythe “proudly exhibited” him “as a boy of great promise” to “[e]very foreigner or other gentleman of distinction” visiting the house, who seemed to arrive in a constant stream.Footnote ²³ Wythe himself was known for his own “suavity of manners.”Footnote ²⁴ Tazewell recalled that Wythe's manners “were very polished indeed, and full of dignity and grace.”Footnote ²⁵ Henry Clay, the famous U.S. Senator, thought Wythe performed “the most graceful bow that I ever witnessed,” even though, by the time Clay had clerked for him, Wythe was “bent by age” and “carried a cane.”Footnote ²⁶ William DuVal, a neighbor in Richmond, observed of another young man under Wythe's care that “he had caught the Suavity of his Master's Manners.”Footnote ²⁷ This was Michael Brown, a free “mulatto” whom Wythe was teaching Latin and Greek, and whom he had provided for in his will.

Another important dimension of manners was personal appearance, and again Wythe set a distinctive and memorable standard. The son of one of his pupils recalled Wythe wearing a “single-breasted black broadcloth coat, with a stiff collar turned over slightly at the top, cut in front in Quaker fashion,” layered over “a long vest, with large pocket-flaps and a straight collar, buttoned high on the breast, showing the ends of the white cravat.” His “shorts” were trimmed with “silver knee and shoe-buckles.” Overall, he was “particularly neat in his appearance.” Compared with the mid-century dress of Virginia gentry, Wythe's stiff, upright Quaker collars and high-buttoned vest must have seemed simple and clean.Footnote ²⁸ This fit with his reputation for personal hygiene; neighbors would observe Wythe drawing water for his daily “shower-bath” from the well in his front yard.Footnote ²⁹ Henry Clay also recalled that Wythe's “personal appearance and his personal habits were plain, simple and unostentatious.”Footnote ³⁰ The Pennsylvanian Benjamin Rush, who met Wythe in the hothouse of the Second Continental Congress, described him as possessing a “dovelike simplicity and gentleness of manner.”Footnote ³¹ The images are striking and suggest that Wythe carefully cultivated his appearance, just as Jefferson did.Footnote ³²

When Wythe began to accept law clerks, probably in the early 1760s, he made an education in manners a central part of their training as well. The first clerk of which we have any record is Thomas Jefferson.Footnote ³³ Amazingly, Wythe brought along the twenty-year-old, skinny, tall, freckled Jefferson to dinners at the palace with Virginia's lieutenant governor, Francis Fauquier. This was the same young Jefferson who, just months earlier, had written to a friend complaining about his law studies and confessing he had left the treatise by that “the old dull scoundrel Coke” packed away.Footnote ³⁴ It was the dinners, not Coke's treatise, that impressed the young man. Years later, he still enthused at being included among the governor's “amici omnium horarum,” which included Wythe and William Small, then Professor of Natural Philosophy at William and Mary. The four of them, Jefferson thought, “formed a partie quarreé,” enjoying refined conversation and music.Footnote ³⁵ Fauquier invited other promising students to dinner as well.Footnote ³⁶ It was these experiences that likely led Jefferson to gush that Williamsburg “was the finest school of manners in America.”Footnote ³⁷ He later duplicated the effort at the University of Virginia, where he reputedly had dinner with every member of the inaugural class. A student recalled the dinners as a “feast of reason,” where Jefferson demonstrated how to conduct amiable conversation and exhibit good manners.Footnote ³⁸

This was not a mass society. Persuasion in public councils would depend on underlying personal relationships that could not be established without gentlemanly manners. Jefferson's ideal of deliberation was intimate conversation, much like something that would occur with guests at a family dinner table.Footnote ³⁹ Both Wythe and Jefferson understood the importance of gentlemanly manners and their efforts to foster them in students were intentional. A letter of introduction Wythe sent to St. George Tucker in 1792, who had recently taken over Wythe's post at William and Mary, recommended its carrier to Tucker's company for his “agreeable conversation and polite manners.”Footnote ⁴⁰ Wythe and Jefferson were of course not alone in these attitudes; it was generally understood that manners were an important part of genteel education. Despite Jefferson's enthusiasm for William and Mary and the University of Virginia, they were hardly the only schools whose teachers arranged for dinners with distinguished guests in an effort to display manners and form connections.Footnote ⁴¹

Law as Science and Scientific Education

What purported to distinguish lawyers educated by Wythe from county-court lawyers and justices of the peace was not gentlemanly manners—these they shared—but science. In Wythe's hands, according to Jefferson, the law was a “science,” which meant it was a rational, organized system, its proceedings “methodical” and its substance “logical.”Footnote ⁴² This was reflected in Wythe's law practice. In pleading before a court, Jefferson observed, he “never indulged himself with an useless or declamatory thought or word.” His language was “chaste.” Wythe's energies were devoted instead to laying out his system. He tended to consult many different sources in his argument, which was likely written, at least in outline, and delivered by reading or extemporizing from the writing.Footnote ⁴³ Henry Clay also recalled Wythe devoting considerable energy to preparation. As a result, Clay thought, his strength “lay in the opening of the argument of a case,” where he displayed “clearness and force.” In this respect Wythe was often contrasted with Edmund Pendleton, his great competitor at the Virginia General Court bar. Pendleton was known for a quick wit and his “melodious,” “clear and silver-toned” voice, which he kept “under perfect control.”Footnote ⁴⁴ He, too, was a student of the law, wrote Hugh Blair Grigsby, a nineteenth-century lawyer and journalist, but the law “as it was to be found in cases,” rather “than as a system.”Footnote ⁴⁵ Pendleton's strategy was to poke holes in Wythe's system—an unnerving experience, as every scholar who has presented their research knows. As Attorney General William Wirt recalled, Pendleton would “tease him with quibbles, and vest him with sophistries, until he destroyed his composure of mind and robbed him of his strength.”Footnote ⁴⁶

Reformers believed that to prepare young men to practice law as a science would require university study. The law office simply did not force a clerk to engage his materials, and many predictably avoided the task. An anonymous letter published in the Virginia Gazette in 1773 complained of new lawyers, putatively trained in law-office a clerkship, but who began their practice “utterly unacquainted” with the law. This might be cured, the author thought, by establishing a professor of law at William and Mary.Footnote ⁴⁷ Not everyone shared this view; William Short, who studied briefly under Wythe, recalled that he had also begun his practice largely ignorant of court procedure, but placed the blame on legal science itself. “Scientific students … are apt to despise the mere technical & practical past of the business—that is the process or forms of pleading…. These were known to the clerks of courts & to every pettifogger & I despised them.”Footnote ⁴⁸ It was depth of knowledge, not technical or practical expertise, that reformers most valued. Jefferson fumed about graduates who had acquired “a smattering of every thing” from paging through Blackstone. Even “unlettered common people” saw these men for what they were, Jefferson thought: “Ephemeral insects of law.”Footnote ⁴⁹ The insult suggests a class distinction, but in terms of learning there was not a great distance between such men and the planter-lawyers of the House of Delegates. Benjamin Harrison, a leading member of the House, who had studied at William and Mary in an earlier generation, had made only a few entries in his own commonplace book, mislabeling some causes of action and including others that were obsolete. Most of the book remained blank.Footnote ⁵⁰

By contrast, studying law under Professor Wythe required diligence. In 1780, just after Wythe's appointment, John Brown described his studies under Wythe in a letter to his uncle.Footnote ⁵¹ “I apply closely to the Study of the Law and find it to be a more difficult Science than I expected,” he reported, though he hoped “with Mr Wythes assistance” he might eventually “make some proficiency in it.” Brown understood this would take some time. “[T]hose who finish this Study in a few months either have strong natural parts or else they know little about it.”Footnote ⁵² He may have been thinking of a classmate, John Marshall, who attended Wythe's class for a short period while on leave from the Continental Army in the spring of 1780.Footnote ⁵³

The state of the evidence makes it difficult to say much about the content of Wythe's curriculum at William and Mary. There are educated guesses about the texts Wythe assigned but no real sense of what he said about them. A set of lecture notes was mysteriously lost.Footnote ⁵⁴ Another possible source, Wythe's extensive personal library, was dispersed after his death, and no complete catalogue of its holdings exists. Of the 490-some titles that researchers believe were part of the collection, a recent study observed they were mostly conventional for a “well-rounded gentleman,” though they did include a significant number of case reports, as one would expect.Footnote ⁵⁵ Wythe's collection was distinctive in one area, its Greek and Latin list, which tends to corroborate his period reputation as the state's most accomplished classical scholar.Footnote ⁵⁶ Wythe's judicial opinions also contain discussions of Roman law and letters.Footnote ⁵⁷ Taken together with Tazewell's recollections (the impromptu Greek translations), this suggests that classical texts formed an important part of Wythe's teaching materials. He seems to have been attracted to Roman literature at least in part because it was useful for giving a systematic exposition of the law. The case reports of the common law made a poor comparison, Wythe thought, for first they had to be “winnowed from the chaff accumulated with them,” and only then “a body of civil law may be formed, equal in value with the [Roman] code, pandects, institutes, and novels.”Footnote ⁵⁸

Wythe's courses at William and Mary also included mock exercises. These were an important element, not make-work, and resemble the popular essay and oratory competitions then held in academies, known as “emulation.”Footnote ⁵⁹ As related by John Brown, the student who had confessed to his uncle that mastering the law would take some time, the professor had recently “founded two Institutions”: “a Moot Court, held monthly or oftener in the place formerly occupied by the Genl Court in the Capitol,” and “a Legislative Body, consisting of about 40 members.”Footnote ⁶⁰ Brown thought the exercises “the best amusement after severer studies” in the library and the lecture hall. But they were also “very usefull & attended with many important advantages,” like helping him overcome his shyness. For the audience Wythe had assembled a distinguished group. In the moot court, Brown wrote, “Mr Wythe and the other professors sit as Judges,” before a collection “of the most respectable of the Citizens.” William Short also remembered pleading causes “in a simulated court, where our professor presided.”Footnote ⁶¹ The student debating society, Phi Beta Kappa, also staged debates, where Short faced off against John Marshall. “The auditory at that time certainly considered my speech far superior to his,” Short recalled, but observers had perhaps misjudged Marshall. Though he possessed little “general knowledge of law,” and no classical education, in practice Marshall became “irresistible” at the bar, “concentrating his ideas as it were through a lens,” focusing “on all the strong points” and ignoring the rest.Footnote ⁶²

Another student, Thomas Lee Shippen, thought the mock legislatures were particularly valuable. The professor had constructed a raised “Presidential seat,” and seeing Wythe upon it put “a damp upon the spirits of the speaker.” Wythe had served as clerk of the House of Burgesses (colonial predecessor to the House of Delegates) and was chairman of one of its standing committees. But despite the intimidation Shippen must have felt, he made it through his speech and was greeted with applause. Writing to his parents, he reveled in the success. It had been his “political birth,” he wrote, having “delivered an oration for the first time in our grand and august Assembly.”Footnote ⁶³

“Law as science” emerges from the evidence less as a body of substantive doctrines than norms for interpreting and presenting the law. In part this is an effect of limitations in the evidence, as I have noted, but not entirely. When writers describe Wythe as, for example, upright, pure, disinterested, “deeply learned,” and possessing an “inflexible rectitude”—common remarks in our sources—it is not entirely clear whether they have his character or his legal work in mind.Footnote ⁶⁴ “Disinterested” might refer to an absence of material interest (Wythe was known to decline legal fees), or to an objective legal analysis. Our sources do not seem inclined to fully separate these things. In this sense, to speak of legal science was to speak of practicing law in a particular way: in a way that exhibited virtues of character like those commonly ascribed to Wythe. Wythe's “manners” were norms for a “scientific” practice of law. Training a generation of young men to research, write, speak, and deliberate like Wythe meant training them to exhibit these manners, to be learned, disinterested, and upright gentlemen. These were the sort of men that Wythe and Jefferson hoped would lead the Virginia House of Delegates. And this was why the mock legislature in which Thomas Lee Shipped had experienced a “political birth” was so important.

Tucker and the Gentlemen of the General Court

When Wythe's law clerks and students reflected on their teacher, how did they think about reforms that he attempted to carry out? Were they successful? Or did young men decide there were other, perhaps more effective ways to conduct themselves in the House of Delegates? What about before the General Court and the other Virginia courts? There is, in fact, a large body of evidence one could marshal to answer these questions. In addition to Jefferson, Madison, Tazewell, Short, Clay, Marshall, and Tucker, Wythe taught dozens of other young men who became part of the Virginia political and legal elite, including Spencer Roane, Benjamin Watkins Leigh, James Monroe, John Breckenridge, and William Branch Giles.Footnote ⁶⁵ Although, of course, we cannot examine all of their careers here, several left writings that speak to legal education and its effect on Virginia politics and society.

Let us take St. George Tucker as an example. Tucker has left us a large body of writing, but I want to focus here on evidence relating to his relocation to Virginia, his education, and his early practice before the central courts in Richmond. That evidence reaffirms the importance of gentlemanly manners among legal elites at the central court bar. These men were connected through marriage and business to Virginia's planter society, and even while they sought to reform that society, they remained part of it. (Tucker himself married into such a family and was a disappointed planter.) At the same time, the evidence also reveals the General Court cautiously expanding its powers to review proceedings in the county courts before the justices of the peace, traditionally a base of planter power. And it reveals that, occasionally, in matters of great significance, a scientific exposition of the law was crucial to the successful use of those powers, enabling the state's new supreme court, the Court of Appeals, to refashion policies enacted by the members of the General Assembly. From this slice of evidence, at least, it looks as if educational reform had some bite.

Tucker clerked in Wythe's law office in the early 1770s, about a decade after Jefferson. He came to Williamsburg from Bermuda, where his father, Henry Tucker, was a successful merchant and politician. Henry had long sought to give his son a sound education in manners. At sixteen St. George was dispatched to grammar school in the Bermuda capital, where he mastered the art of the genteel bow, going “down to the Ground,” and which he reported using after being invited to dinner by an “extremely polite, well-bred Gentleman.”Footnote ⁶⁶ When Henry heard news that the College of William and Mary offered a genteel education at a fraction of the price of the English Inns of Court, he agreed to send St. George, on hopes that his son would benefit from “the Improvement and the Connections” available there.Footnote ⁶⁷

St. George's brother, Henry Jr., urged him to use his time at university to connect with Williamsburg's leading figures, which would “be serviceable at some future period.”Footnote ⁶⁸ This was not simply a matter of networking, but of learning to adopt their manners. “It wou'd be prudent to court in Intimacy,” Henry Jr. observed, “as their conversation must be instruction and from their Manners you may be able to form your own.” In a subsequent letter he cited the example of a young attorney, recently arrived in Bermuda, who had taken the genteel community by storm for his clever, entertaining conversation, his plethora of anecdotes, and the striking “Law-Gown” he donned in court.Footnote ⁶⁹ But Henry Jr. had little to worry about. St. George was naturally sociable and good-humored, and he shared enough of his father's ambition to be careful about his public behavior, if not strategic.Footnote ⁷⁰ About legal science, St. George's attitudes in this period are harder to discern. Although he meticulously archived his letters and notes, he never seems to have described his clerkship under Wythe.Footnote ⁷¹ This may have been because he was bored with it; the “Study of law,” he wrote in 1775, was “dry and tedious.”Footnote ⁷²

By 1786, however, after a decade spent planting tobacco and speculating in land, Tucker had become convinced that practicing law was the only way to sustain his financial independence.Footnote ⁷³ He had been part-timing in nearby county courts for several years, but now he decided to move to Richmond to practice at the General Court bar. About a dozen lawyers were then practicing before the central courts, which included, besides the General Court, courts of Admiralty and Chancery, along with a supreme Court of Appeals staffed by the central court judges sitting en banc.Footnote ⁷⁴ Tucker was instinctively comfortable in this company. A letter to his wife Frances from April 1786 describes attending dinner with Edmund Randolph, then the state's attorney general. “When I entered the room, the whole Court and Bar were seated in their sables,” Tucker wrote, referring to their black dress. “I told the Attorney that I thought at first I had mistaken his Invitation and had got to a Funeral. I thought he did not much relish the joke.”Footnote ⁷⁵

Tucker devoted his first term at the bar to taking notes on the hearings. They are an important source of our understanding of the culture of this group; they have a conservational feel that is remarkable and suggests a familiarity between members of the bench and bar. In addition to arguments from lawyers on both sides of the case, Tucker's record includes questions or suggestion by the judges, asides between the lawyers, and even occasional laughter. Usually, the discussion focuses on the elements of a common-law form of action, particularly debt, detinue, and case; the interpretation of wills and statutes; or various irregularities in the courts below.Footnote ⁷⁶

County irregularities appear to have constituted a significant portion of the hearings Tucker observed. In Bower v. McCampbell, for example, the defendant asked the General Court to issue a writ of certiorari to remove proceedings from Rockbridge County Court. The affidavit in support of the motion complained “the plaintiff was [also] Judge of the court & had great influence therein,” so the defendant could not receive justice. The situation was not unheard of; indeed, the extant order books suggest the justices or family members were often parties. “The Court hesitated for some time,” wrote Tucker, “conceiving the Allegation too general, but upon some Circumstances mentioned by [Judge] Fleming,” certiorari was awarded.Footnote ⁷⁷ Tucker does not record what the circumstances were. Review of the county courts seems to have been a delicate matter, and the counties might even return fire. In another case recorded by Tucker, heard in the Court of Appeals, the justices considered how to respond to a county court's service of process upon the General Court's Chief Justice during term time. Chancellor Wythe was incensed. He suggested summoning “the Attorney who ordered the process, the Clerk who issued it & the officer who served it, to appear [and] shew cause why an Attachment agt. them should not issue for their Contempt of this Court.”Footnote ⁷⁸ Other irregularities were more mundane but showed the need for professional lawyers in the counties. One sheriff had executed judgment “with a blank for the name of the County.”Footnote ⁷⁹ In another case, judgment was entered before the paper commencing the suit had been filed.Footnote ⁸⁰

In other cases, the Court considered how to interpret a series of conflicting statutes, or a statute and principles of “unwritten” law, such as the common law or the law of nations. In one of the most important of these cases, Hannah v. Davis, the General Court held that, according to Tucker's notes, “no Indian brought into this Govt. from the back Country” since 1705 “could be made a slave.” A law of 1670 had permitted American Indians captured in war to be made “servants” for a term of years. In 1682 the assembly eliminated the term and made captured Indians slaves for life, on grounds that they ought to be treated like those captured in Africa. Nevertheless, subsequent laws had opened trade with the Indian tribes, a practice implying peace, and thus, it was argued, a repeal of the 1682 statute. Plaintiffs in the case were descendants of Bess, who was thought to have made a slave sometime after 1705. Four lawyers presented arguments, including John Marshall for the plaintiffs, who asked the court whether it would “Countenance a flagitious Act”—that is, the illegal enslavement of Bess and her progeny after trade had been opened—rather than construe the trade laws to free them by implication. The Court of Appeals chose the latter course, and in so doing it essentially announced a policy for the state. It is worth noting that this was not the first time, nor the last, that a Virginia court declared the 1682 statute repealed.Footnote ⁸¹ But at least theoretically, as reporter Daniel Call (also a student of Wythe's) put it in another case, the interpretation of the Court of Appeals “forms a precedent, which should be adhered to as part of the law itself.”Footnote ⁸²

On occasion the General Court considered not only amending the policy of the assembly, but nullifying it entirely. In 1782, several years before Hannah, Tucker had been involved in a case in which several defendants asked the judges to do just this, Commonwealth v. Caton or the “Case of the Prisoners,” well-known to legal historians for its role in the development of judicial review.Footnote ⁸³ From our perspective, the case is also significant for its endorsement of thoroughly discussing and explaining the law. As we have seen, Jefferson and Wythe seem to have imagined that they would reform the General Assembly by educating its gentlemen members. Caton shows the fruit of a legal education in checking those members from the bench. Science is made to look like it has an institutional home. The argument was controversial and involved significant risk for the judges; six years later, in 1788, in response to the judges’ remonstrance than an act of the assembly violated the state constitution, the assembly effectively stripped the Court of Appeals of its jurisdiction and transferred all its cases to a new supreme court.Footnote ⁸⁴

At the time of the Case of the Prisoners, Tucker was still practicing law in the county courts. He found his way into the case at the invitation of the presiding judge of the Court of Appeals, Edmund Pendleton, who had solicited outside opinions, perhaps in an effort to bolster the court's authority. On panel with Pendleton was Chancellor Wythe, Pendleton's old adversary at the General Court bar and Tucker's teacher. At the time Wythe was still serving (simultaneously) as Professor of Law and Police at William and Mary. Tucker's notes wisely reflect a sensitivity to his teacher's ambitions for educated lawyers to lead the General Assembly. While “the power properly belonging to the Judiciary Department, is,” argued Tucker, “to explain the Laws of the Land as they apply to particular Cases,” nevertheless, if the “Legislative shall find that Mischiefs have, or may arise from such Interpretation it is undoubtedly their province to explain their own Acts.”Footnote ⁸⁵ The pinch came when it was the constitution being explained. The constitution was, after all, another law, and judges might have to apply it to decide a case—indeed it was “the first Law by which they are bound,” which a decision could not contravene without being “absolutely subversive” of government. It followed, reasoned Tucker, that if an act of the General Assembly “shall be found absolutely & irreconcilably contradictory to the Constitution,” the Court of Appeals must declare it void. From such a decision the General Assembly could have no relief. It could not itself apply the constitution to the case, since it was the judicial power to decide cases. Nor could it interpret the constitution by passing a statute, as Parliament had long done, since Parliament had used this method to change the British constitution, while the General Assembly was bound by Virginia's constitution, being “inferior or subordinate” to the body that had enacted it. In effect, concluded Tucker, the “Fundamental Principles” of American government rendered “the Judiciary Department” the “Guardian” of the constitution.Footnote ⁸⁶

What Chancellor Wythe made of his clerk's argument we cannot know, though his opinion in the case does suggest approval. It is difficult, otherwise, to explain why Wythe begins by affirming the value of education for determining the powers of government. “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 to produce discussion upon the respective rights of the sovereign and the subject; and, upon the powers which the different branches of government may exercise.”Footnote ⁸⁷ Wythe does not say where this discussion should occur, and presumably the matter could be taken up by the gentlemen of the General Assembly. In this context, however, Wythe agreed that the court had to give its own construction. The other departments had already weighed in, and “those[] who hold the purse and the sword” were left “differing as to the powers which each may exercise.” A legal case was now before the courts, and “administering the public justice of the country” required the judges to determine whether defendants’ pardon complied with restrictions set out in the constitution. There were advantages to resolving the dispute in this setting; in court, Wythe observed, “the pretensions of each party are fairly examined, their respective powers ascertained, and the boundaries of authority peaceably established.”

The Case of the Prisoners suggests that Wythe's methods of teaching law had some effect on Virginia's central courts. Our evidence reveals that the lawyers of the bench and bar thought they should give a systematic exposition of the law as it applied to the cases there. At the same time, the Case of the Prisoners also suggests that Wythe's methods were, from a relatively early date, linked to proceedings in court. In court there was a prospect of, as Wythe put it, “peaceably” resolving disputes between the branches about their respective powers. Positioned between “purse” and “sword,” possessing the powers and interests of neither branch, but obligated to do justice, the court could be made to appear like a kind of neutral arbiter. The image pushed the listener to associate legal science with judicial proceedings. By 1793, St. George Tucker, now on the General Court bench himself, would write that “the duty of expounding must be exclusively vested in the judiciary,” omitting entirely what he had emphasized eleven years earlier: the right of the legislature to explain its own acts.Footnote ⁸⁸ “Expounding” the law—giving a systematic and exhaustive explanation of it—looked increasingly like a dimension of judicial power.Footnote ⁸⁹

The Limits of Legal Science

At the same time, there were limits to the effectiveness of legal science, even within Virginia's courts, and taking stock of these will show how legal “science” was intertwined with a particular vision for Virginia society. We should begin again with the Virginian avatar of legal science, George Wythe. The praise lavished on Wythe in our sources tends to obscure that his vision for legal education at William and Mary was not universally shared—perhaps not even widely shared. It was tied to a particular method of practicing law, which, in truth, had long been confined in Virginia to a small group of lawyers working in the central courts. These men actively maintained the boundaries that insulated them. As Jefferson advised Wythe, if Virginia was to develop its “men of science” into great judges, it would need to continue excluding county-court lawyers from the central-court bar, or “an inundation of insects” would surely “come from the county courts and consume the harvest.”Footnote ⁹⁰

Even at the bar of the central courts, Wythe himself did not always find success applying his scientific methods. As Henry Clay conceded many years later, Pendleton had often prevailed against him. Pendleton was “prompt to meet all the exigencies which would arise in the conduct of a cause in court,” but Wythe was not so quick.Footnote ⁹¹ He was, perhaps, less an advocate than a scholar. One bit of faint praise described him in court as “always able, … and at times even eloquent.”Footnote ⁹² Wythe's manners, though practiced, showed something like a scholar's reserve. Littleton Waller Tazewell surmised that his tutor's “fondness for study kept him much secluded from general observation,” creating an “excessive modesty.” In contrast, he admitted, Pendleton was “more courtly.”Footnote ⁹³ Views like these percolated in tall tales about the Pendleton–Wythe rivalry. According to one, Virginia's last royal governor, Lord Dunmore, quipped to Pendleton that he had no need to wait for co-counsel, since he alone could defeat both opposing counsel, Wythe and Robert Carter Nicholas.Footnote ⁹⁴ There are other stories, as well. They make it unreasonable simply to take at face value Jefferson's claim that Wythe held “first place” at the Virginia bar “without competition,” and similar remarks.Footnote ⁹⁵

Not all of Wythe's limitations were attributable to scholarly seclusion. Some were surely due to shortcomings in legal science itself. A complete and systematic presentation of the law was not always necessary or even persuasive. Our records suggest, nonetheless, that for the gentlemen of the General Court, “the more citations one found” in a lawyer's brief, “the more weight his brief held.”Footnote ⁹⁶ The practice looks a bit like compulsion. St. George Tucker confessed a tendency to “have been sometimes too prolix,” and was described by a law reporter as giving opinions “sometimes a little tinctured with technicality.”Footnote ⁹⁷ If these things happened only “sometimes,” it was evidently often enough for Tucker to develop a reputation for piling on authorities. Disregarding a movement in the Court of Appeals toward unanimous opinions, Tucker began to prepare his own opinions ahead of conference, sharing them with the other judges only once they were complete, when they must have been received as fait accompli. In one infamous episode, an exasperated colleague declared that he would not listen to another of Tucker's “long, tedious, and ridiculous opinions,” tearing the paper from Tucker's hands and throwing it on the floor.Footnote ⁹⁸ The antagonist was Spencer Roane, also a former student of Wythe's, and though his conflict with Tucker may best be understood as a personal struggle for control of the Court of Appeals, the language of his outburst is revealing. Around the same time, another judicial colleague complained of “the unfortunate practice of quoting lengthy and numerous British cases,” which he thought bogged down the Court of Appeals with “reconciling absurd and contradictory opinions of foreign judges.”Footnote ⁹⁹ Of the many allusions to the ancient world in Wythe's Chancery opinions, one modern scholar has observed that their purpose is often obscure—except, perhaps, as a showcase of the judge's knowledge.Footnote ¹⁰⁰

Even Wythe's students, as deeply as they admired their teacher, expressed some doubt about his methods of teaching and practice. We have already encountered Tazewell's frustrations with his Greek lessons. Jefferson's nephew, Peter Carr, also thought the professor spent too much time on “the dead languages.” They were not entirely useless, he conceded, but this “mode of education”—paying the ancient languages “strict and constant attention”—was “a measure fallen into disuse; and for my own part I think not entirely without reason.”Footnote ¹⁰¹ Another writer recalled remarking to “an eminent lawyer”—who, from the sound of it, may have been Wythe—that he saw

William Short also reflected critically on Wythe's curriculum. Years into retirement, after a lengthy and distinguished public career, Short still felt the sting of embarrassment at his ignorance of basic procedure when he began his practice in the county courts. “Scientific lawyers,” he thought, were raised “looking down as derogatory on the county,” devoting their time instead to a study of general principles.Footnote ¹⁰³ But this did not serve their clients’ interests. Even “a man who has passed with éclat through our Universities,” Short observed, will “yield the palm to some country clown, on whom his pride & legal opportunities shall make him look down with scorn, but on whom clients … will look up to as their protector.”Footnote ¹⁰⁴

The testimonials we have from Wythe's former students are full of praise, but they must be read in context. There were of course other students at William and Mary during the decade that Wythe taught there, and we should think of him as engaged in a competition for influence over this broader class of young gentlemen. Here, it must be said, much of the evidence implies a losing battle. During Wythe's tenure the college was repeatedly in crisis, struggling with student riots and a budgetary crunch triggered by the loss of its endowment and declining enrollments.Footnote ¹⁰⁵ Other American schools were also facing riots, but efforts to discipline students at William and Mary were complicated by a genteel culture built around independence and honor, and these complications put a damper on plans to reform Virginia society through school. Fathers intervened to protect sons, and uncles their nephews, touching off a series of contests between faculty and trustees, known as “visitors,” who tended to align with powerful parents and did not hesitate to fire professors.Footnote ¹⁰⁶ Students refused to inform on one another, or even to tolerate public accusations of misbehavior, which they might take as an affront to their honor.Footnote ¹⁰⁷ They resisted punishment as a mark of subordination fit for slaves, and some insisted on demonstrating their own mastery by physically abusing the enslaved men and women working at the college. The foremost concern of many young men seems to have been their manliness. This made them acutely sensitive to words; Tucker's stepson, John Randolph, was challenged to a duel when he refused to apologize for publicly correcting the pronunciation of another student at William and Mary. Randolph shot his opponent, though fortunately the boy survived.Footnote ¹⁰⁸ Some leading Virginians criticized dueling, but for a young man embroiled in conflict it could be difficult to avoid, at least if he wanted to preserve his honor and remain a candidate for public office.Footnote ¹⁰⁹ These developments did not bode well for the culture of learned public debate that Wythe had been trying to foster in his students.Footnote ¹¹⁰ Indeed, by the 1830s, slavery would be nearly impossible to discuss in many Virginia colleges and, soon thereafter, in its assembly as well.

It was their peers, not their professors, that students sought most to impress.Footnote ¹¹¹ In a letter to a favorite grandson, Jefferson recalled his own flirtations with “bad company” as a young man. Luckily, he soon became acquainted “with some characters of very high standing,” and, when “under temptations & difficulties, I would ask myself what would D^r Small, mr Wythe, Peyton Randolph do in this situation? what course in it will ensure me their approbation?”Footnote ¹¹² The advice was given to steer Carr away from the more usual course, as Jefferson's own admission implies.

Most collegians were drawn to men like James Innes. Innes attended William and Mary about a decade after Jefferson, where he was by all measures a capable student. After completing his bachelor's degree (still unusual in this period), Innes was appointed “head usher” and began to clerk in Wythe's law office. At the same time, however, he took a leadership role in a student society, the “F.H.C. Society,” sometimes called the “Flat Hat Club,” which was devoted to socializing and partying.Footnote ¹¹³ Innes formed a close bond with another of F.H.C.'s early members, St. George Tucker. A letter from Innes to Tucker written in the fall of 1773, when Innes was clerking and Tucker was studying at William and Mary, pokes fun at the notion of “science”—suggesting it was a term Wythe often repeated and that students rolled their eyes at. “[R]epair hither to the temple of Mirth and Hilarity—I wd have said science, too, had I not thought you would have laughd at me.”Footnote ¹¹⁴ Innes signed off “half Drunk.” As the Revolution opened in Virginia he became a leader of the students. Innes was already known for conflicts with the faculty over his practice of “Beating & Punishing the Negroes of the College when he thinks them in fault,” and during the war threatened to “cane” a militia captain dispatched by the Governor to retrieve two cannon he had stolen to fire during a party.Footnote ¹¹⁵ His temperament blended with a whiggish politics in a way that was attractive to the student body.Footnote ¹¹⁶ Here was a model of manhood, mastery, and independence that would prove far more attractive to young gentlemen than the one provided by George Wythe, with his deep and elegant bows and his arcane legal “science.” In the 1780s, when Noah Webster (another school reformer) visited William and Mary to deliver a series of lectures, he found only six students in attendance. “Virginians,” he concluded, “have much pride, little money on hand, great contempt for Northern people, & amazing fondness for Dissipation.”Footnote ¹¹⁷

Innes would have become an important leader in Virginia had he not died early. In 1780 he began the first of several terms in the Virginia House of Delegates, where he joined with other lawyers. The profession proved influential on issues like reform of the county-court system and the handling of planter debt. A pamphlet published in Richmond in 1807 complained about lawyers’ “growing and dangerous influence … in our legislative councils.”Footnote ¹¹⁸ They sought to “monopolize representation,” and practiced “a species of eloquence that dazzles and deludes the understanding and imposes upon the judgment of the multitude.” Even Jefferson was prepared to admit that lawyers had, “by their numbers in the public councils …, wrested from the public hand the direction of the pruning knife,” though he thought their influence generally republican.Footnote ¹¹⁹ To other men, however, the mass of lawyers in the General Assembly seemed primarily interested in smoothing its own way. The Richmond pamphleteer charged them with seeking to advance the profession's interest in lawsuits, particularly for the recovery of debt, an interest “distinct from and directly opposed to that of the community at large.”Footnote ¹²⁰ Jefferson also expressed frustration at the failure “to bring forth the wisdom of our country into it's councils,” using “country” to refer to Virginia, though lawyers then made up roughly half the House of Delegates.Footnote ¹²¹ According to William Wirt, who had served as clerk in the House of Delegates, one was more likely to hear a “puerile rant, or tedious and disgusting inanity” than “general knowledge” and “close and solid thinking.”Footnote ¹²² Few representatives were scientific lawyers, then, despite their education.

The program at William and Mary had proved a failure. Wythe resigned his chair in frustration in 1789.Footnote ¹²³ In a letter to William Short, Jefferson predicted that unless Wythe was quickly rehired, “it is over with the college.”Footnote ¹²⁴ Wythe would not return. His replacement, St. George Tucker, was forced to accommodate himself to what was in truth a deteriorating environment. Tucker was repeatedly targeted by student rioters for his efforts at discipline, and finally quit when college trustees ordered him to perform bed checks on students.Footnote ¹²⁵ Wythe departed for Richmond, ostensibly to focus on his work as the state's Chancellor, and there he embarked on the project of building a body of learned chancery opinions. In 1806, however, he was murdered by a nephew, George Wythe Sweeney, apparently seeking his inheritance to pay off gambling debts.Footnote ¹²⁶ Sweeney also killed Michael Brown, the young man of mixed race who was living with Wythe and a beneficiary of his will.

Wythe's murder was deeply traumatic for the legal community in Richmond. It overhangs much of our evidence about him, who in later remembrances is almost made to symbolize the aspiration for reforming Virginia society through education and law. Into Wythe men seem to have poured their nostalgia for a time when the prospect of liberal reform had been live. But Wythe's “legal science” had faced important social limits from the beginning. As reformers soon perceived, the rising generation seemed unwilling to do the hard work that science required, and too proud and sensitive to sustain the public criticism that effective legislatures required. Jefferson remained convinced that a scientific education was essential for republicanism, though his University of Virginia would struggle with many of the same social problems.Footnote ¹²⁷

There was retrenchment, as well, in Virginia attitudes about slavery—a matter Jefferson had formerly connected to educational reform, in hopes that the next generation of enlightened leaders would be able to eliminate it. In 1820, in the aftermath of the Missouri Crisis, Jefferson expressed worry that the efforts of his generation “to acquire self government and happiness to their country, is to be thrown away by the unwise and unworthy passions of their sons,” in apparent reference to their growing sectional attachment to slavery.Footnote ¹²⁸ Around the same time, however, he complained that Virginia's young men, dispatched to the North for a costly college education, were “imbibing opinions and principles in discord with those of their own country.”Footnote ¹²⁹ A letter to John Taylor of Caroline, perhaps the period's preeminent spokesman for southern rights on the question of slavery, declared that northern colleges “are no longer proper for Southern and Western students.”Footnote ¹³⁰ Some scholars have concluded, not without reason, that Jefferson envisioned the University of Virginia as a bastion for the defense of slavery and the racism and violence with which it was intertwined. Jefferson, as is well known, freed only a few of his own slaves (mostly his children with Sally Hemings), and, according to a recent, sympathetic study, “could not imagine an interracial society” and “took little interest in the education of African Americans” after 1796.Footnote ¹³¹ George Wythe, in contrast, freed his slaves during his lifetime, and had taken Michael Brown as a pupil in his home at the time they both were murdered. By 1820, the hope that a generation of liberally educated gentlemen would eliminate slavery in Virginia was dashed; instead, after 1830, they would choose to entrench it.

A Republican Assembly

If the program at William and Mary did not accomplish reformers’ aims, did it fail to have any effect at all? This would be surprising; the assembly was, after all, full of its graduates. If we study proceedings there for evidence of the role legal education did play, what jumps out is how law provided a vocabulary and a method for conducting partisan political dispute. Deliberations could be strikingly sophisticated and full of legal argument. They were perhaps less intimate and conversational than Jefferson had imagined, at least on the most momentous occasions, when the legislative journals record lengthy oratories by leading men, a form that may have been better suited to print.Footnote ¹³² Naturally, these methods did not have a party persuasion; gentleman lawyers on both sides of the party divide could make use of their education against opponents. Louis Hartz has described how defenders of slavery in the antebellum South began to curate a kind of “reactionary Enlightenment”: a conservative vision for society that emphasized what were Enlightenment values, like security of property, autonomy, and order. In the same fashion they made use of the reactionary potential in elite legal culture.Footnote ¹³³ Both parties employed legal science to construct a case for the power of institutions they dominated.

It was the application of legal methods and ideas to partisan conflict that made the 1790s so generative for emerging doctrines of federalism and separation of powers. As historians have long observed, partisanship in the period was characterized not merely by policy disputes, but by “a complete distrust of the motives and integrity, the honesty and intentions of one's political opponents.”Footnote ¹³⁴ Distrust tended to elevate disagreements about policy into matters of principle. As to Alexander Hamilton's proposal for a national bank, Jefferson observed, there “was not merely a speculative difference. [Hamilton's] system flowed from principles adverse to liberty, and was calculated to undermine and demolish the republic, by creating an influence of his department over the members of the legislature.”Footnote ¹³⁵ A fear that one's opponents were conspiring to destroy the government produced mutual intolerance and encouraged partisans to describe each other in inflammatory language. The conservative French nobleman, Francois de la Rouchefoucauld Liancort, who was then touring the United States (having himself fled revolution in France), observed how “[p]olitical intolerance proceeded to the extreme,” so that “the most disgraceful and hateful appellations were mutually given by the individuals of the parties to each other.”Footnote ¹³⁶ It was in this vein that Thomas Paine wrote to George Washington to inquire, he said, “whether you are an apostate or an imposter; whether you have abandoned good principles, or whether you ever had any.”Footnote ¹³⁷ Anyone could be reduced to a stereotypical villain, a habit of argument that tended to make the issue of constitutional enforcement seem urgent.

It was in this atmosphere that the members of the Virginia General Assembly sought to establish a robust role for themselves within the new federal system. Their sensitivity to the question of constitutional enforcement is detectable from a relatively early date. In January 1790, Hamilton delivered his Report on Public Credit to the U.S. House of Representatives, advocating that the national government assume public war debt. The report observed that “[i]f all the public creditors receive their dues from one source, distributed with an equal hand, their interest will be the same.”Footnote ¹³⁸ In Virginia this was perceived, according to John Marshall, who was then serving in the House of Delegates, as an effort to “bestow[] on the [federal] government an artificial strength, by the creation of a monied interest subservient to its will.”Footnote ¹³⁹ A federal act assuming state debts narrowly passed Congress in the summer of 1790, but when the Virginia House of Delegates convened for its session in October, the members were still angry and they turned to the act almost immediately. It was, concluded the Committee of the Whole House, “repugnant to the Constitution of the United States,” which did not “expressly grant” a power to assume debts.Footnote ¹⁴⁰ A special committee was directed to prepare a memorial for communicating the House's judgment to Congress. Historians have justly characterized the memorial as an expression of whiggish “country” opposition politics.Footnote ¹⁴¹ But the memorial also offered a theory of the role of the General Assembly in enforcing constitutional limits. Its members were the “guardians … of the rights and interests of their constituents, … sentinels placed by them over the ministers of the foederal government, to shield it from their encroachments, or at least to sound the alarm when it is threatened with invasion.” The first draft of the memorial concluded that the “consent of the State Legislatures ought to be obtained, before the act can assume a constitutional form,” but in later versions this language was struck in favor of a recommendation that Congress “revise and amend” the act.Footnote ¹⁴²

The difficulty with recruiting the assembly for this role was the appearance it engendered of unlawful resistance to the national government—or even of a scheme to foment insurrection. Violence was indeed a possibility. In 1794 resistance to the nation's first excise taxes, which targeted spirits, matured into an insurrection in western Pennsylvania and had to be put down by force. On the other hand, members of Virginia's General Assembly could point to a long history of lawfully enforcing constitutional limits. The colonial predecessor of the House of Delegates, the House of Burgesses, had received petitions and acted on grievances for many decades.Footnote ¹⁴³ In the 1760s it was the Burgesses that assumed leadership of the resistance to imperial tax policies, morphing, sometime later, into a “provincial convention,” which would manage the war, govern the state, and write and adopt Virginia's first constitution.Footnote ¹⁴⁴ The House of Delegates continued to receive petitions, and its Committee of Propositions and Grievances remained perhaps the most important of the five standing committees.Footnote ¹⁴⁵ In 1797, just prior to enactment of the Alien and Sedition Acts, Jefferson himself petitioned the House to complain of a local grand jury presentment against a state representative for circulating a letter criticizing the Adams administration, which sought, the jury had alleged, “to increase or produce a foreign influence ruinous to the peace.”Footnote ¹⁴⁶ Jefferson asked for redress but did not suggest a particular remedy. What, in this case, could the House of Delegates do?

A variety of answers to this question were aired in the years that followed. One that gained an audience in the General Assembly was that it alone was suited to gather public opinion and communicate it to Congress. “Force was not thought of by any one,” maintained John Mercer of Spotsylvania, speaking in the Committee of the Whole House in defense of what would later become known as the “Virginia Resolutions.” Mercer's occupation is not known, but his father, also John Mercer, possessed one of the greatest libraries in colonial Virginia and had been a leading lawyer, as were several brothers, all of whom were educated at William and Mary. As Mercer described the Delegates’ aim, “We do not wish … to be the arm of the people's discontent, but to use their voice.” He thought “legislatures” well suited to this role, “possessing all the organs of civil power, and confidence of a people,” as well as the means to communicate with one another. This, argued Mercer, was the real purpose of the Resolution: to “obtain a similar declaration of opinion” from the other states, and “thereby to obtain a repeal.” This was the sense in which state governments could be said to enjoy a right “to interfere” with federal law. That differed from the aim imputed by the Resolution's opponents, who accused its authors of a design “to rouse the people to resistance.”Footnote ¹⁴⁷

What was public opinion of the constitutionality of the Alien and Sedition Acts? If there was one, it is hard to detect in the debates. Mercer proffered a lawyerly construction of the allocation of power over foreign affairs under the Constitution, citing The Federalist, the records of the Virginia ratifying convention, the text of the Necessary and Proper Clause, and the Tenth Amendment, among other sources. He denied the Constitution could be read to grant Congress a power to expel the subjects of foreign countries at peace with the United States; or that treatises by Vattel and Blackstone could be read to describe an inherent power in the national government to expel strangers as a concomitant of sovereignty. Over the course of debate in the next several days, a key question crystallized: Whether the Constitution granted Congress an implied, “general” power over foreign affairs, or only “special,” enumerated powers. The handling of this question by several delegates demonstrated powerfully how legal “science” might be used to interpret the Constitution. Listening in the assembly were a number of Wythe's former students, including the committee chair, James Breckenridge, and Littleton Waller Tazewell, the sometime Greek translator.Footnote ¹⁴⁸

Though most of these arguments had little obvious relation to popular sentiment, partisans hotly contested which institution it was that delivered the real sense of “the people.” Federalists in Congress defended their own, more liberal interpretation of federal power by observing that the Constitution contained only “principles which are to govern in making laws,” leaving members to “exercise our judgments, and on every occasion to decide according to an honest conviction of its true meaning.”Footnote ¹⁴⁹ Federalists in the Virginia House of Delegates urged that the judgment of Congress about the scope of its power foreclosed the matter, since its houses represented both “the whole people, and the respective state sovereignties.”Footnote ¹⁵⁰ Republicans in the House nonetheless impeached that judgment by describing it as essentially self-dealing. There was “a spirit … manifested by the Federal Government, to enlarge its powers by forced constructions of the constitutional charter which defines them.” Even here learned law played a crucial role; what made the constructions “forced” was their violation of a legal maxim, which prohibited “expound[ing] certain general phrases … so as to destroy the meaning and effect of particular enumeration, which necessarily explains and limits the general phrases.”Footnote ¹⁵¹

According to Jefferson in the Kentucky Resolutions, passed around the same time, the problem was deeper than this. Had the federal government been “made the exclusive or final judge of the extent of the powers delegated to itself,” “that would have made its discretion, and not the Constitution, the measure of its powers.” Constitutionalism required an external judge. Or, as in “other cases of compact among parties having no common judge, each party has an equal right to judge for itself.” Famously enough, Kentucky deleted Jefferson's proposed remedy that states “nullify” unconstitutional federal laws, but this did not prevent a widespread perception, voiced in the Rhode Island Counter-Resolution, that the authority to judge constitutionality asserted by Virginia's legislature would be “hazarding an interruption of the peace of the states by civil discord, in case of a diversity of opinions among the state legislatures.”Footnote ¹⁵²

A Federalist Court

The learned character of deliberations in the General Assembly did not spare it from criticism for its resolutions against the Alien and Sedition Acts. The charge that the assembly was inviting popular resistance was hard to shake. The language of the Resolutions was extreme, as was typical for the period, but which again reinforced a sense that the assembly was looking for trouble. The federal government's exercise of implied power was, it read, “dangerous,” formed part of a conspiratorial “design” to expand its power, and had already produced “alarming infractions” of the Constitution. The profession, at the Resolutions’ end, of a desire for “perpetuating the union” seemed, in comparison, somewhat forced—especially as it was joined to a caveat, that the union must be under “the most scrupulous fidelity to the Constitution” as Virginia had interpreted it.Footnote ¹⁵³

Hostile rhetoric was connected to hostile resistance and to physical violence. The example of the Whiskey Rebellion, cited earlier, should not lead us to conclude that the specter of violence was merely out-of-doors. It was indoors as well, and especially in the legislature, where, as one commentator reminds us, “[t]he potential for violence among members was always present,” and significant enough that Jefferson's 1801 Manual of Parliamentary Practice warned against it.Footnote ¹⁵⁴ Jefferson's model rules for parliamentary proceedings were designed to facilitate a collaborative process of deliberating and amending proposed bills, in which, as he framed it, “friends of the paragraph” might address the objections voiced against a bit of language. But deliberations were increasingly at risk of suddenly turning personal, rather than remaining focused on language or policy. A reader of the newsprint reports of the General Assembly's 1831 debate over slave emancipation described them as “reckless discussions,” in which “the dissolution of the Union is spoken of, and many other monstrous opinions & acts present an awful prospect.”Footnote ¹⁵⁵ Legislatures in other states saw wrestling, fistfights, and even murder on the floor.Footnote ¹⁵⁶

The hostile bearing of state legislatures on the question of their rights might result in an unending back-and-forth, eventually frustrating both governments and producing a violent confrontation. It was this prospect that Marshall laid out in the opening paragraph of his opinion in McCulloch v. Maryland, where he justified the Court's determination of the “conflicting powers” of Congress and the states on grounds that the question “must be decided peacefully” or remain subject to “hostile legislation,” and “perhaps, of hostility of a still more serious nature.”Footnote ¹⁵⁷ The argument was much like the one his former teacher Wythe had made years earlier in another weighty case, the Case of the Prisoners: that the Court of Appeals should intervene to decide the contest between the House of Delegates and the Governor over the pardon power, “so that the boundaries of authority” would be “peaceably established.”Footnote ¹⁵⁸ States could not claim a right to be the final judges of the meaning of the Constitution on grounds that they had delegated the powers in it, since the Constitution had proceeded not from state legislatures, but from the people acting in convention. This was, Marshall wrote, “the only manner in which they can act safely, effectively and wisely, on such a subject—by assembling in convention.” It was, he implied, unsafe to attempt to deliberate about a constitution in a legislative assembly, so the people had been forced out-of-doors. The “awful” responsibility of interpreting what they had done to decide a dispute between the federal government and a state necessarily lay with the Court. “[B]y this tribunal alone can the decision be made. On the Supreme Court of the United States has the Constitution of our country devolved this important duty.”

The idea that judicial proceedings were “peaceful” in contrast to the proceedings of other departments was, by 1819, an old idea, though its service in partisan causes was relatively new. Early appearances of the idea do not have an overtly partisan character, but look more like familiar, widely acknowledge features of elite legal practice. Marshall emphasized the idea in a speech to the 1788 Virginia ratifying convention, as he sought to assure its delegates that federal courts under the proposed Constitution would declare unconstitutional laws void. What was the “service or purpose of a Judiciary,” Marshall asked, “but to execute the laws in a peaceable orderly manner, without shedding blood, or creating a contest, or availing yourselves of force?” There was “no other body that affords such a protection.”Footnote ¹⁵⁹ What was it about the judicial process that was “peaceable” in comparison to proceedings in other departments? For his part, Marshall sought to emphasize that judicial enforcement of constitutional limits took place in the context of a litigated case. In cases, constitutional questions were presented so as to “assume a legal form for forensic litigation and judicial decision,” by “parties come into court,” who were “reached by its process, and bound by its power.” When the exercise of legal judgment arose out of a public discussion of the Constitution by opposed parties, who had submitted to the court and would be bound by its judgment, and who guided the court by offering a scientific account of the relevant authorities, it encouraged the peaceful settlement of differences. No other institution of government resolved disputes this way.Footnote ¹⁶⁰ It is not hard to see the image of George Wythe hovering behind this framing of the legal process—with his simple, clean dress, his elaborate presentation of the law, and his “dovelike simplicity and gentleness of manner,” as Benjamin Rush had described him.

Federalists began to draw on this idea of peace in their effort to steer major issues into the Supreme Court, where they had reason to expect more favorable results. To do this, however, the constitutional questions involved had to be framed “forensically,” as Marshall put it. This was important to the justices, who under Chief Justice John Jay in the early 1790s had begun to shield themselves from partisan politics and political accountability by refusing traditional extrajudicial obligations, like giving advice to the government.Footnote ¹⁶¹ Under Marshall's leadership the Court had continued to insulate itself by insisting on a distinction between law and politics.Footnote ¹⁶² To preserve the protection this distinction provided sometimes required contriving a legal case. Indeed, a number of the leading federalism cases that came before the Supreme Court between roughly 1790 and 1820 were collusive or involved deliberately contrived disputes in order to obtain a judgment, including Hylton v. United States, Fletcher v. Peck, Martin v. Hunter's Lessee, and McCulloch.Footnote ¹⁶³ The broader practice may have grown out of a legal fiction, the “feigned issue,” long employed to obtain a judgment on the validity of a land title, or other devices for obtaining the equitable division of an estate.Footnote ¹⁶⁴ The “feigned issue” could be found in St. George Tucker's edition of Blackstone and must have been familiar to at least his more attentive students.Footnote ¹⁶⁵ There were other forms of “non-contentious” jurisdiction as well, which legal scholars have described as relatively common in the early federal courts.Footnote ¹⁶⁶ If so, then Federalists must have found contriving a case an attractive means for steering a matter into court and away from a hostile Republican legislature.Footnote ¹⁶⁷ They continued to invoke this idea for years, in what now appears to be a vain (and counterproductive) hope of settling major national controversies. Thus Justice Story opened his opinion in Prigg v. Pennsylvania by acknowledging that the case “has been brought here by the co-operation and sanction” of the parties, “with a view to have those questions finally disposed of by the adjudication of this Court; so that the agitations on this subject … may subside.”Footnote ¹⁶⁸

The principal difficulty with framing matters forensically and pushing them into the Supreme Court for peaceful settlement was that it seemed to elevate the Court beyond its proper station in a republic. If the Court were to make a peaceful settlement, it would have to be final; but a settlement could only be final in a republic if “the people” acceded and elected representatives who would comply. Spencer Roane seized on just this implication in his published criticism of Marshall's opinion in McCulloch, written under the pseudonym Hampden. Quoting James Madison's printed remarks on the Virginia Resolutions, known as the “Report of 1799” and ostensibly authored by a special committee of the Virginia House of Delegates, Roane observed that “the last resort by the judiciary, is in relation to the authority of the other departments of the government,” but not to the people of the different states, whom Roane described as “the parties to the compact under which the judiciary is derived.”Footnote ¹⁶⁹ To allow that would be to delegate a judicial power that “would annul the authority delegating it.” The Court was part of the federal government, and the federal government was itself a party in the dispute, just as the departments of a state government. Rather than settle the matter peacefully, then, the Court had also served as a partisan in the “warfare carried on by the legislature of the union against the rights of ‘the states’ and of ‘the people.’”Footnote ¹⁷⁰