BECOMES A LAWYER
Some time in the early spring of 1760, Thomas Jefferson, then a lad in
the College of William and Mary, was surprised by the arrival in
Williamsburg of his jovial acquaintance, Patrick Henry, and still more
by the announcement of the latter that, in the brief interval since
their merrymakings together at Hanover, he had found time to study
law, and had actually come up to the capital to seek an admission to
the bar.
In the accounts that we have from Henry's contemporaries respecting
the length of time during which he was engaged in preparing for his
legal examination, there are certain discrepancies,--some of these
accounts saying that it was nine months, others six or eight months,
others six weeks. Henry himself told a friend that his original study
of the law lasted only one month, and consisted in the reading of Coke
upon Littleton and of the Virginia laws.[18]
Concerning the encounter of this obscure and raw country youth with
the accomplished men who examined him as to his fitness to receive a
license to practice law, there are three primary narratives,--two by
Jefferson, and a third by Judge John Tyler. In his famous talk with
Daniel Webster and the Ticknors at Monticello, in 1824, Jefferson
said: "There were four examiners,--Wythe, Pendleton, Peyton Randolph,
and John Randolph. Wythe and Pendleton at once rejected his
application; the two Randolphs were, by his importunity, prevailed
upon to sign the license; and, having obtained their signatures, he
again applied to Pendleton, and after much entreaty, and many promises
of future study, succeeded also in obtaining his. He then turned out
for a practicing lawyer."[19]
In a memorandum[20] prepared nearly ten years before the conversation
just mentioned, Jefferson described somewhat differently the incidents
of Henry's examination:--
"Two of the examiners, however, Peyton and John Randolph,
men of great facility of temper, signed his license with as
much reluctance as their dispositions would permit them to
show. Mr. Wythe absolutely refused. Rob. C. Nicholas refused
also at first; but on repeated importunities, and promises
of future reading, he signed. These facts I had afterwards
from the gentlemen themselves; the two Randolphs
acknowledging he was very ignorant of law, but that they
perceived him to be a young man of genius, and did not doubt
he would soon qualify himself."[21]
Long afterward, and when all this anxious affair had become for
Patrick Henry an amusing thing of the past, he himself, in the
confidence of an affectionate friendship, seems to have related one
remarkable phase of his experience to Judge John Tyler, by whom it was
given to Wirt. One of the examiners was "Mr. John Randolph, who was
afterwards the king's attorney-general for the colony,--a gentleman of
the most courtly elegance of person and manners, a polished wit, and a
profound lawyer. At first, he was so much shocked by Mr. Henry's very
ungainly figure and address, that he refused to examine him.
Understanding, however, that he had already obtained two signatures,
he entered with manifest reluctance on the business. A very short time
was sufficient to satisfy him of the erroneous conclusion which he had
drawn from the exterior of the candidate. With evident marks of
increasing surprise (produced, no doubt, by the peculiar texture and
strength of Mr. Henry's style, and the boldness and originality of his
combinations), he continued the examination for several hours;
interrogating the candidate, not on the principles of municipal law,
in which he no doubt soon discovered his deficiency, but on the laws
of nature and of nations, on the policy of the feudal system, and on
general history, which last he found to be his stronghold. During the
very short portion of the examination which was devoted to the common
law, Mr. Randolph dissented, or affected to dissent, from one of Mr.
Henry's answers, and called upon him to assign the reasons of his
opinion. This produced an argument, and Mr. Randolph now played off on
him the same arts which he himself had so often practiced on his
country customers; drawing him out by questions, endeavoring to puzzle
him by subtleties, assailing him with declamation, and watching
continually the defensive operations of his mind. After a considerable
discussion, he said, 'You defend your opinions well, sir; but now to
the law and to the testimony.' Hereupon he carried him to his office,
and, opening the authorities, said to him: 'Behold the force of
natural reason! You have never seen these books, nor this principle of
the law; yet you are right and I am wrong. And from the lesson which
you have given me (you must excuse me for saying it) I will never
trust to appearances again. Mr. Henry, if your industry be only half
equal to your genius, I augur that you will do well, and become an
ornament and an honor to your profession.'"[22]
After such an ordeal at Williamsburg, the young man must have ridden
back to Hanover with some natural elation over his success, but that
elation not a little tempered by serious reflection upon his own
deficiencies as a lawyer, and by an honest purpose to correct them.
Certainly nearly everything that was dear to him in life must then
have risen before his eyes, and have incited him to industry in the
further study of his profession.
At that time, his father-in-law had become the keeper of a tavern in
Hanover; and for the next two or three years, while he was rapidly
making his way as a general practitioner of the law in that
neighborhood, Patrick seems occasionally to have been a visitor at
this tavern. It was in this way, undoubtedly, that he sometimes acted
as host, especially in the absence of his father-in-law,--receiving
all comers, and providing for their entertainment; and it was from
this circumstance that the tradition arose, as Jefferson bluntly
expressed it, that Patrick Henry "was originally a barkeeper,"[23] or,
as it is more vivaciously expressed by a recent writer, that "for
three years" after getting his license to practice law, he "tended
travelers and drew corks."[24]
These statements, however, are but an exaggeration of the fact that,
whenever visiting at the tavern of his father-in-law, he had the good
sense and the good feeling to lend a hand, in case of need, in the
business of the house; and that no more than this is true may be
proved, not only from the written testimony of survivors,[25] who knew
him in those days, but from the contemporary records, carefully kept
by himself, of his own earliest business as a lawyer. These records
show that, almost at once after receiving his license to practice
law, he must have been fully occupied with the appropriate business of
his profession.
It is quite apparent, also, from the evidence just referred to, that
the common history of his life has, in another particular, done great
injustice to this period of it. According to the recollection of one
old man who outlived him, "he was not distinguished at the bar for
near four years."[26] Wirt himself, relying upon the statements of
several survivors of Patrick Henry, speaks of his lingering "in the
background for three years," and of "the profits of his practice" as
being so inadequate for the supply of even "the necessaries of life,"
that "for the first two or three years" he was living with his family
in dependence upon his father-in-law.[27] Fortunately, however, we are
not left in this case to grope our way toward the truth amid the ruins
of the confused and decaying memories of old men. Since Wirt's time,
there have come to light the fee-books of Patrick Henry, carefully and
neatly kept by him from the beginning of his practice, and covering
nearly his entire professional life down to old age.[28] The first
entry in these books is for September, 1760; and from that date onward
to the end of the year 1763,--by which time he had suddenly sprung
into great professional prominence by his speech in "the Parsons'
Cause,"--he is found to have charged fees in 1185 suits, besides many
other fees for the preparation of legal papers out of court. From
about the time of his speech in "the Parsons' Cause," as his fee-books
show, his practice became enormous, and so continued to the end of his
days, excepting when public duties or broken health compelled him to
turn away clients. Thus it is apparent that, while the young lawyer
did not attain anything more than local professional reputation until
his speech against the parsons, he did acquire a very considerable
practice almost immediately after his admission to the bar. Moreover,
so far from his being a needy dependent on his father-in-law for the
first two or three years, the same quiet records show that his
practice enabled him, even during that early period, to assist his
father-in-law by an important advance of money.
The fiction that Patrick Henry, during the first three or four years
of his nominal career as a lawyer, was a briefless barrister,--earning
his living at the bar of a tavern rather than at the bar of
justice,--is the very least of those disparaging myths, which, through
the frailty of human memory and the bitterness of partisan ill-will,
have been permitted to settle upon his reputation. Certainly, no one
would think it discreditable, or even surprising, if Patrick Henry,
while still a very young lawyer, should have had little or no
practice, provided only that, when the practice did come, the young
lawyer had shown himself to have been a good one. It is precisely
this honor which, during the past seventy years, has been denied him.
Upon the evidence thus far most prominently before the public, one is
compelled to conceive of him as having been destitute of nearly all
the qualifications of a good lawyer, excepting those which give
success with juries, particularly in criminal practice: he is
represented as ignorant of the law, indolent, and grossly negligent of
business,--with nothing, in fact, to give him the least success in the
profession but an abnormal and quite unaccountable gift of persuasion
through speech.
Referring to this period of his life, Wirt says:--
"Of the science of law he knew almost nothing; of the
practical part he was so wholly ignorant that he was not
only unable to draw a declaration or a plea, but incapable,
it is said, of the most common or simple business of his
profession, even of the mode of ordering a suit, giving a
notice, or making a motion in court."[29]
This conception of Henry's professional character, to which Wirt seems
to have come reluctantly, was founded, as is now evident, on the
long-suppressed memorandum of Jefferson, who therein states that,
after failing in merchandise, Patrick "turned his views to the law,
for the acquisition or practice of which however, he was too lazy.
Whenever the courts were closed for the winter session, he would make
up a party of poor hunters of his neighborhood, would go off with
them to the piny woods of Fluvanna, and pass weeks in hunting deer, of
which he was passionately fond, sleeping under a tent before a fire,
wearing the same shirt the whole time, and covering all the dirt of
his dress with a hunting-shirt. He never undertook to draw pleadings,
if he could avoid it, or to manage that part of a cause, and very
unwillingly engaged but as an assistant to speak in the cause. And the
fee was an indispensable preliminary, observing to the applicant that
he kept no accounts, never putting pen to paper, which was true."[30]
The last sentence of this passage, in which Jefferson declares that it
was true that Henry "kept no accounts, never putting pen to paper,"
is, of course, now utterly set aside by the discovery of the precious
fee-books; and these orderly and circumstantial records almost as
completely annihilate the trustworthiness of all the rest of the
passage. Let us consider, for example, Jefferson's statement that for
the acquisition of the law, or for the practice of it, Henry was too
lazy, and that much of the time between the sessions of the courts was
passed by him in deer-hunting in the woods. Confining ourselves to the
first three and a half years of his actual practice, in which, by the
record, his practice was the smallest that he ever had, it is not easy
for one to understand how a mere novice in the profession, and one so
perfectly ignorant of its most rudimental forms, could have earned,
during that brief period, the fees which he charged in 1185 suits, and
in the preparation of many legal papers out of court, and still have
been seriously addicted to laziness. Indeed, if so much legal business
could have been transacted within three years and a half, by a lawyer
who, besides being young and incompetent, was also extremely lazy, and
greatly preferred to go off to the woods and hunt for deer while his
clients were left to hunt in vain for him, it becomes an interesting
question just how much legal business we ought to expect to be done by
a young lawyer who was not incompetent, was not lazy, and had no
inordinate fondness for deer-hunting. It happens that young Thomas
Jefferson himself was just such a lawyer. He began practice exactly
seven years after Patrick Henry, and at precisely the same time of
life, though under external circumstances far more favorable. As a
proof of his uncommon zeal and success in the profession, his
biographer, Randall, cites from Jefferson's fee-books the number of
cases in which he was employed until he was finally drawn off from the
law into political life. Oddly enough, for the first four years of his
practice, the cases registered by Jefferson[31] number, in all, but
504. It should be mentioned that this number, as it includes only
Jefferson's cases in the General Court, does not indicate all the
business done by him during those first four years; and yet, even with
this allowance, we are left standing rather helpless before the
problem presented by the fact that this competent and diligent young
lawyer--whom, forsooth, the rustling leaves of the forest could never
for once entice from the rustle of the leaves of his law-books--did
nevertheless transact, during his own first four years of practice,
probably less than one half as much business as seems to have been
done during a somewhat shorter space of time by our poor, ignorant,
indolent, slovenly, client-shunning and forest-haunting Patrick.
But, if Jefferson's charge of professional indolence and neglect on
the part of his early friend fares rather ill when tested by those
minute and plodding records of his professional employments which were
kept by Patrick Henry, a fate not much more prosperous overtakes
Jefferson's other charge,--that of professional incompetence. It is
more than intimated by Jefferson that, even had Patrick been disposed
to engage in a general law practice, he did not know enough to do so
successfully by reason of his ignorance of the most ordinary legal
principles and legal forms. But the intellectual embarrassment which
one experiences in trying to accept this view of Patrick Henry arises
from the simple fact that these incorrigible fee-books show that it
was precisely this general law practice that he did engage in, both in
court and out of court; a practice only a small portion of which was
criminal, the larger part of it consisting of the ordinary suits in
country litigation; a practice which certainly involved the drawing
of pleadings, and the preparation of many sorts of legal papers; a
practice, moreover, which he seems to have acquired with extraordinary
rapidity, and to have maintained with increasing success as long as he
cared for it. These are items of history which are likely to burden
the ordinary reader with no little perplexity,--a perplexity the
elements of which are thus modestly stated by a living grandson of
Patrick Henry: "How he acquired or retained a practice so large and
continually increasing, so perfectly unfit for it as Mr. Jefferson
represents him, I am at a loss to understand."[32]
As we go further in the study of this man's life, we shall have before
us ample materials for dealing still further and still more definitely
with the subject of his professional character, as that character
itself became developed and matured. Meantime, however, the evidence
already in view seems quite enough to enable us to form a tolerably
clear notion of the sort of lawyer he was down to the end of 1763,
which may be regarded as the period of his novitiate at the bar. It is
perfectly evident that, at the time of his admission to the bar, he
knew very little of the law, either in its principles or in its forms:
he knew no more than could have been learned by a young man of genius
in the course of four weeks in the study of Coke upon Littleton, and
of the laws of Virginia. If, now, we are at liberty to suppose that
his study of the law then ceased, we may accept the view of his
professional incompetence held up by Jefferson; but precisely that is
what we are not at liberty to suppose. All the evidence, fairly
sifted, warrants the belief that, on his return to Hanover with his
license to practice law, he used the next few months in the further
study of it; and that thenceforward, just so fast as professional
business came to his hands, he tried to qualify himself to do that
business, and to do it so well that his clients should be inclined to
come to him again in case of need. Patrick Henry's is not the first
case, neither is it the last one, of a man coming to the bar miserably
unqualified for its duties, but afterward becoming well qualified. We
need not imagine, we do not imagine, that he ever became a man of
great learning in the law; but we do find it impossible to believe
that he continued to be a man of great ignorance in it. The law,
indeed, is the one profession on earth in which such success as he is
proved to have had, is impossible to such incompetence as he is said
to have had. Moreover, in trying to form a just idea of Patrick Henry,
it is never safe to forget that we have to do with a man of genius,
and that the ways by which a man of genius reaches his results are
necessarily his own,--are often invisible, are always somewhat
mysterious, to the rest of us. The genius of Patrick Henry was
powerful, intuitive, swift; by a glance of the eye he could take in
what an ordinary man might spend hours in toiling for; his memory
held whatever was once committed to it; all his resources were at
instant command; his faculty for debate, his imagination, humor, tact,
diction, elocution, were rich and exquisite; he was also a man of
human and friendly ways, whom all men loved, and whom all men wanted
to help; and it would not have been strange if he actually fitted
himself for the successful practice of such law business as was then
to be had in Virginia, and actually entered upon its successful
practice with a quickness the exact processes of which were
unperceived even by his nearest neighbors.
FOOTNOTES:
[18] Wirt, 16.
[19] Curtis, _Life of Webster_, i. 584.
[20] First printed in the Philadelphia _Age_, in 1867; and again
printed, from the original manuscript, in _The Historical Magazine_,
August, 1867, 90-93. I quote from the latter.
[21] Jefferson's memorandum, _Hist. Mag._ for August, 1867, 90.
[22] Wirt, 16, 17.
[23] Curtis, _Life of Webster_, i. 584.
[24] McMaster, _Hist. of U. S._ i. 489.
[25] I have carefully examined this testimony, which is still in
manuscript.
[26] Judge Winston, MS.
[27] Wirt, 18, 19.
[28] These fee-books are now in the possession of Mr. William Wirt
Henry, of Richmond.
[29] Wirt, 18.
[30] _Hist. Mag._ for 1867, 93.
[31] Randall, _Life of Jefferson_, i. 47, 48.
[32] William Wirt Henry, _Character and Public Career of Patrick
Henry_, 3.