University of Virginia Library

CHAPTER IX

THE LAW PROFESSORSHIP

In the earlier months of the first session Mr.
Jefferson's optimism had little to check it. He
was delighted with Gilmer's selection of professors
who were profound in their scholarship and
genteel in their behavior, marks of striking worth
in the opinion of the Father of the University.

But he was not entirely free from concern. The
school of law was still without a head. Gilmer was
offered this chair for the second time not long before
he sailed for Europe; indeed, the minutes of
the Visitors show that he "was appointed to be
professor of law or moral philosophy at his election,
to be signified to the rector." There is no
evidence that he ever considered the chair of
moral philosophy at all, but he did weigh the possibility
of final acceptance of the law professorship.
After his return, and after his health had
taken on a more hopeful appearance, he declined,
preferring a more public career than the
cloistered life of a pedagogue, and the chair was
proposed indirectly to Henry St. George Tucker,
and then directly to Judge Dade, Judge Philip P.
Barbour, and Judge Carr, none of whom was
available. In the fall, however, Gilmer's health

was in such a feeble state[1] that he feared he could
not sustain the hardship attendant upon the practice
of his profession in that day of great distances
and bad roads, and he lent an attentive ear for
the first time to Mr. Jefferson's solicitation. His
acceptance was regarded as a fortunate conclusion
of their trouble.

But Mr. Gilmer's health declined alarmingly as
the winter advanced, and when the second session
began he was too weak and debilitated to lecture.
He died February 25, 1826, at "Farmington," the
estate of George Divers, his uncle by marriage,
and was buried at Pen Park, the home of his ancestors.
An occasional pilgrim, drawn to the old
homestead by the fame of Wirt, who found his
first wife there, and by the story of young Gilmer,
finds his grave, with other tombs, in a small enclosure,
which is not very well cared for, and
reads the epitaph he made for himself: "Pray,
stranger, allow one who never had peace while
he lived, the sad immunities of the grave, silence
and repose."

The death of the young professor restored the
old problem of an incumbent for the chair of law.
Mr. Jefferson became discouraged at the outlook.
He seemed to fear the University would be reduced
to accepting "a Richmond lawyer," or one
of "that school of quondam federalism, now consolidation,"
and made ready to guard against the

dissemination of such principles by "a previous
prescription of the texts."[2]

Cabell, in suggesting Tucker the year before,
wrote to Jefferson: "It will be difficult to fill the
law chair well, unless, perhaps, a judicial station
were combined with it; and yet an interference
should be as far as possible avoided. Suppose a
small chancery district, consisting of the counties
of Albemarle, Orange, Louisa, Fluvanna, and Nelson,
were created, and the professor of law made
chancellor of the district. The combination would
be enticing to the first order of men." Whether
Mr. Jefferson thought the suggestion worth acting
upon does not appear in the correspondence,
but the next offer of the chair was accompanied
by the tender of another dignity.

At Gilmer's death there seems to have been
some expectation that his brother-in-law, William
Wirt, would accept the chair, and the Visitors, at
their meeting in April, 1826, appointed him, and,
to induce his acceptance, they created the office
of president, and conferred it upon him. Mr. Jefferson
dissented from his colleagues in regard to
the creation of this office, and by consent of the
Visitors, entered his protest on the minutes. The
whole record, although written by Mr. Jefferson
when he was within a few days of his eightyfourth
birthday, is in clean, neat chirography, and
covers less than two pages in the small minute-book:

"Resolved, That there be established the office
of president of the University with a salary of fifteen
hundred dollars per annum to be paid out of

the annuity of the University, in the manner in
which the salaries of the professors are paid.

"The President shall be the chief executive officer
of the University, and as such charged with the
general superintendence of the execution of all laws
made for its government.

"The Proctor and all subordinate agents shall
be subject to his control and direction in the execution
of their respective duties.

"He shall convene the Faculty whenever he
may think the interests of the institution require
it, and whenever else any two professors shall request
it.

"He shall preside at all meetings of the faculty,
when present, and having a vote as professor, he
shall have a casting vote as president, when the
votes of the professors, pro and con, are equally
divided.

"In his absence from the meetings of the Faculty
a chairman pro tempore shall be appointed, in the
absence of the President from the University, and
in case of his disability by sickness, or otherwise,
the Faculty may be convened and may act as at
present.

"When the President shall believe that a student
has committed any offense requiring trial before
the Faculty, he shall have power to suspend
such student, and in case of emergency, forbid
him access within the precincts, till a board can be
convened for his trial, provided that no such suspension
or restraint shall be for a longer time
than two weeks, if a board can be convened within
that time. Any student violating the order of the

President made pursuant to the authority hereby
vested in him, shall be deemed guilty of contumacy,
and punished accordingly.

"Resolved, That William Wirt, at present Attorney-General
of the United States, be appointed
President of the University and professor of law;
and if he decline the appointment the resolution
establishing the office of President be null and
void.

"If the appointment hereby made shall be accepted,
the professor will be expected to enter
on the duties of his office as soon as his convenience
will allow, not later, however, than the commencement
of the next session.

"From the enactments establishing the office of
President the Rector dissented. His dissent is
ordered to be entered in the journal, and is in the
words following:

"The subscriber, Rector of the University, fully
and expressly concurring in the appointment of
William Wirt to be professor of the school of law,
dissents from and protests against so much of
these enactments as go to the establishment of
the office of President of the University for these
reasons:

"First, because the law establishing the University,
delineating the organization of the authorities
by which it should be directed and governed,
and placing at its head a board of Rector
and Visitors has enumerated with great precision
the special powers it meant to give to that board,
in which enumeration is not to be found that of
creating a President, making him a member of
the faculty of professors, and with controlling
powers over that faculty: and it is not conceivable

that, while descending, in their enumeration, to
give specifically the power of appointing officers
of the minutest grade, they should have omitted
to name him of the highest, who was to govern
and preside over the whole. If this is not among
the enumerated powers, it is believed it cannot be
legitimately inferred by construction from the
words giving a general authority to do all things
expedient for promoting the purposes of the institution;
for, so construed, it would render nugatory
the whole enumeration and confer on the
Board powers unrestrained within any limits.

"Second, because he is of opinion that every
function ascribed to the President by this enactment,
can be performed and is now as well performed
by the Faculty as now established by law.

"Third, because we owe debts at this time of at
least $11,000 beyond what can be paid by any
means we have in possession, and may command
within any definite period of time; and fixes on
us permanently an additional expense of $1,500
a year.

"Fourth, because he thinks that so fundamental
a change in the organization of the institution
ought not to be made by a thin board, two of the
seven constituting it being now absent.

"For these reasons the subscriber protests
against both the expediency and validity of the
establishment of this office. Th: Jefferson."

This early consideration of the presidency had
for its motive the inducement of an eminent man
to unite his fame with the fortunes of the institution.
There was no pretense of any other purpose,
for in case Mr. Wirt declined the office was
to cease. Mr. Wirt did decline, and the proposition
to establish presidential government was not

repeated until after the lapse of twenty years; and
again after twenty years, when the same motive
seems to have guided the Visitors. It would be
interesting to know what modification of the
structure and fibre of the University would have
taken place if Wirt or Lee had become identified
with its life.

Wirt advised Jefferson to appoint John Tayloe
Lomax to the professorship of law, and Mr. Lomax
became the first occupant of that chair. Wirt
had met him as a brother lawyer in Richmond and
elsewhere, and admired the courtly Virginian,
who added to his graces the utility of a profound
knowledge of the law. Lomax was nearly forty-five
years of age, and had won a secure reputation
in the practice of his profession, which he had begun
at Fredericksburg. Indeed, his good fame
was the ultimate cause of his withdrawal from the
faculty in 1830, when he was made judge of the
Fredericksburg circuit. While at the University
he had his share of students who afterwards became
famous, among them being R. M. T.
Hunter, Alexander H. H. Stuart, and Robert
Toombs. As a lecturer he paid much attention
to style, and the learning he offered his classes
lost nothing by his rhetorical method. The teaching
of law seems to have been a vocation with
him, for after he had gone on the bench he conducted
a private law school to which many bright
young men repaired.