Richard Cary (d. 13 November 1789), member of the Convention of 1776, member of the Convention of 1788, and judge of the Virginia Court of Appeals, was born early in the 1730s in Warwick County, probably at Peartree Hall, near Hampton, the residence of his parents, Miles Cary (d. 1766) and his first wife, Hannah Armistead Cary. He probably received a good education, but the details, as with many aspects of his private life, are not known. He married Mary Cole about 1760 and had five daughters and two sons, the elder of whom, also named Richard Cary, served in the General Assembly during the 1780s and 1790s and has been confused with his father.
Cary became an attorney and by the end of the 1760s was clerk of Warwick County. In what may have been a move to increase his income and widen his acquaintance among the colony's influential gentlemen, he successfully petitioned in 1766 for the clerkship of the House of Burgesses' Committee of Trade. Three years later he also won the clerkship of the Committee for Religion, both of which he held through the House's final session that began in June 1775.
Convention of 1776
Cary signed the Virginia nonimportation association of 27 May 1774. Elected to the Warwick County Committee when it was created on 23 November 1774, he chaired the committee by the end of the following year. On 11 April 1776 he won election to the fifth and final Revolutionary Convention. Cary attended nearly every day and was almost certainly present for the three most important and unanimous votes, in favor of independence on 15 May, to adopt the Declaration of Rights on 12 June, and to approve the first constitution of the commonwealth on 29 June. He served on the Committees on Privileges and Elections and of Public Claims and on the large committee, chaired by his distant kinsman Archibald Cary, selected to draft the declaration and the constitution. He was also a member of two select committees appointed to examine accounts left over from Dunmore's War of 1774 and another committee charged with deciding what to do with several men held in the Williamsburg jail awaiting criminal trials in a court that by the summer of 1776 no longer existed.
Judicial Career
Cary served in the House of Delegates in the October 1776 session. He sat on the Committees for Courts of Justice, on Privileges and Elections, and of Public Claims and was one of seven men named to audit the accounts of the retiring treasurer of Virginia. Cary's brief legislative career ended after the assembly on 17 December elected him one of three judges of the new Virginia Court of Admiralty. Few records of the court survive, so it is not clear how busy the docket was, but Cary was the only judge who served from its formation until the court was abolished at the end of 1788 after ratification of the United States Constitution extinguished state admiralty law. For the last three years of the court's existence, from December 1785 through December 1788, Cary was presiding judge.
As a judge of the Court of Admiralty, Cary became an ex officio member of the Virginia Court of Appeals, established in May 1779. The records of that court's work provide few details about Cary's career on the appellate bench. In two instances, however, he took part in deciding cases that raised the relatively novel question of judicial review, or whether the court could invalidate acts of assembly that were inconsistent with the state constitution. In November 1782 in Commonwealth v. Caton et al. the court accepted a case that arose under a statute that may have violated Virginia's constitution. By tacitly affirming the constitutionality of the act, Cary and the other judges implicitly recognized that they might reject unconstitutional acts of the assembly. The second case, commonly referred to as the Cases of the Judges, concluded in March 1789. The General Assembly had reorganized the state court system and, among other things, increased the duties of some judges without a corresponding increase in their compensation. In 1788 the judges complained to the assembly and characterized the act as a threat to the independence of the judiciary. In response, the legislature modified the law and created a new Court of Appeals whose judges were not simultaneously to be judges of any other court. The assembly declared vacant all appellate court judgeships and then appointed judges for the new Court of Appeals. Cary was not reappointed, but he and the other judges of the former court nevertheless assembled and pronounced the law an intolerable legislative interference with the judiciary and a clear violation of the Virginia constitution. In the interests of avoiding a confrontation and of putting the otherwise-welcomed new law into effect, they all then resigned from the offices that the assembly had already declared vacant.
Convention of 1788
On 13 March 1788 Cary was one of two delegates elected to represent Warwick County in the convention called to consider the proposed constitution of the United States. He sat on the Committee of Privileges and Elections. Cary did not speak during the recorded debates. He voted on 25 June 1788 with the opponents of the Constitution to demand amendments before ratification, and after that motion failed he voted against ratification.
Later Years
In May 1785 Cary attended the first annual convention of the clergy and laity of the Protestant Episcopal Church of Virginia. He was a serious student of botany and during the 1780s supplied specimens to the French consul in Norfolk and also exchanged plant specimens with Thomas Jefferson, then in France. Jefferson returned the favor in 1787 when he sent Cary copies of the new English edition of Notes on the State of Virginia and of Erasmus Darwin's recently translated version of Carolus Linnaeus's Systema Vegetabilium.
On 24 December 1788, after the assembly abolished the Court of Admiralty and terminated Cary's service on the Court of Appeals, it elected him to the General Court. He took office on 9 February 1789 and presided at trials, probably in the southeastern districts, heard appeals from the county courts, and occasionally met at the capital with the other judges to hear appeals in criminal cases, the General Court being then Virginia's only criminal appellate court. Richard Cary died on 13 November 1789 at the Richmond tavern where he was staying while attending one of the sessions of the court. He may have been buried in the city, where the governor and members of the Council of State paid their respects to his remains, although family tradition records he was interred at Peartree Hall.
Sources Consulted:
Biographies in (4 Call), Cases Decided in the Supreme Court of Appeals of Virginia, 8:xxii, Hugh Blair Grigsby, The History of the Virginia Federal Convention of 1788 (1891), 2:382, and Fairfax Harrison, The Virginia Carys: An Essay in Genealogy (1919), 52, 54–55 (with birth year of 1730), all of which confuse facts in Cary's life and the life of his namesake son; death date in Wynne family Bible records (1757–1909), Accession 28173, Library of Virginia (LVA); some Cary letters in Julian P. Boyd et al., eds., The Papers of Thomas Jefferson (1950– ), 9:444, 10:226–228, 601–602, 635–636, 11:48, 228–230, 12:29, 130; William J. Van Schreeven, Robert L. Scribner, and Brent Tarter, eds., Revolutionary Virginia, the Road to Independence: A Documentary Record (1973–1983), 1:98, 2:175, 4:95, 100, 5:67, 71, 6:378, 7:25, 61, 123, 143, 273, 341, 419; Commonwealth v. Caton et al. (1782) and Cases of the Judges of the Court of Appeals (1788) (4 Call), Cases Decided in the Supreme Court of Appeals of Virginia, 8:5–21, 135–151; David John Mays, Edmund Pendleton, 1721–1803: A Biography (1952), 2:187–202; Mays, ed., The Letters and Papers of Edmund Pendleton, 1734–1803 (1967), 2:426, 553–554; Richmond Virginia Independent Chronicle, 26 Mar. 1788, 11 Mar. 1789; John P. Kaminski et al., eds., The Documentary History of the Ratification of the Constitution: Ratification of the Constitution by the States, vols. 8–10: Virginia (1988 –1993), 9:615–617, 10:1444, 1539, 1541, 1557 (incorrectly identifies Cary's namesake son as delegate to the Convention of 1788); obituaries in Richmond Virginia Independent Chronicle, and General Advertiser, 18 Nov. 1789, and Richmond Virginia Gazette and Weekly Advertiser, 19 Nov. 1789.