On This Day in History: The Curious Death of George Wythe, Founding Father and Nation's First Law Professor

Did his murderer walk because Virginia law did not permit African Americans to testify against whites?

|The Volokh Conspiracy |

George Wythe isn't exactly an unsung hero of the American Founding. The Marshall-Wythe Law School at the College of William & Mary is named for him. But as a signatory to the Declaration of Independence, a Constitutional Convention delegate, and a mentor to John Marshall, Thomas Jefferson, St. George Tucker, Bushrod Washington, and Henry Clay, he probably deserves to be "sung" a bit more than he is.

One thing Wythe probably wouldn't have wanted is to be famous for his death. But it's an interesting story. Alas, since it's over two hundred years old, it's hard to know which details are true and which are not. But there is broad agreement on the basics of the story, so let me give it to you as I learned it:

Many believe Wythe was murdered by his no-good, addicted-to-gambling grand-nephew George Wythe Sweeney (who stood to inherit). One morning in 1806, Wythe fell violently and inexplicably ill. So, too, did Lydia Broadnax and Michael Brown, both of whom had had breakfast at Wythe's home. Broadnax was his long-time cook (and his wife's slave before being manumitted by Wythe following his wife's death). Brown was a free mixed-race teen, who lived in the Wythe household. Wythe had been tutoring him in Greek.

Brown died first. Wythe was ill for many days, during which he insisted that he had been deliberately poisoned, before finally dying on June 8th. Broadnax recovered from her illness. Interestingly, the doctors weren't as sure as Wythe about poison diagnosis.

Significant evidence pointed to the debt-ridden Sweeney. What drew people's attention was that he was caught a few days after Wythe fell ill cashing a check with Wythe's name forged. Wythe was still alive at this point and denied having written the check. It turned out this wasn't the first forged check Sweeney cashed. And it was already known that Sweeney had stolen form Wythe in the recent past.

That got some people thinking. Broadnax complained that he had been hanging around the coffee pot in the kitchen that morning and generally acting strangely. She said she saw him toss some paper in the fire. (Some versions of the story say she saw he put powder in the coffee.) Another witness said that he had been asking about how to procure ratsbane (arsenic trioxide) days prior to the incident.

Sweeney was arrested. Some witnesses said that the time of his arrest, he had something heavy wrapped in paper in his pocket, but it wasn't immediately examined. There was evidence that after he was jailed, he threw it over the jail yard fence, where it was found by a young slave named Pleasant and handed over to the jailer. The jailer recognized it to be arsenic. (And there was a bit more arsenic evidence.)

Records of a preliminary hearing, where the rules of evidence did not apply, make the case against Sweeney look strong. Nevertheless, Sweeney was acquitted at the actual trial. Records of that trial have been long since lost, but at least part of the problem seems to have been that some key witnesses were not permitted to testify. Blacks, whether slave or not, were prohibited under the laws of the Commonwealth of Virginia from giving evidence against a white man. This likely meant that Pleasant and Broadnax and maybe other witnesses could not give evidence. Without their testimony, the case against Sweeney would have looked very much weaker.

Was Sweeney guilty? Was this an egregious miscarriage of justice? That seems entirely possible. One small consolation was that Wythe, who had been described as "a second father" by Jefferson, was given the largest funeral in Virginia history up to that time.