A CELEBRATED CASE
Thus Patrick Henry had been for nearly four years in the practice of
the law, with a vigor and a success quite extraordinary, when, late in
the year 1763, he became concerned in a case so charged with popular
interest, and so well suited to the display of his own marvellous
genius as an advocate, as to make both him and his case immediately
celebrated.
The side upon which he was retained happened to be the wrong
side,--wrong both in law and in equity; having only this element of
strength in it, namely, that by a combination of circumstances there
were enlisted in its favor precisely those passions of the multitude
which are the most selfish, the most blinding, and at the same time
the most energetic. It only needed an advocate skilful enough to play
effectively upon these passions, and a storm would be raised before
which mere considerations of law and of equity would be swept out of
sight.
In order to understand the real issue presented by "the Parsons'
Cause," and consequently the essential weakness of the side to the
service of which our young lawyer was now summoned, we shall need to
turn about and take a brief tour into the earlier history of Virginia.
In that colony, from the beginning, the Church of England was
established by law, and was supported, like any other institution of
the government, by revenues derived from taxation,--taxation levied in
this case upon nearly all persons in the colony above the age of
sixteen years. Moreover, those local subdivisions which, in the
Northern colonies, were called towns, in Virginia were called
parishes; and accordingly, in the latter, the usual local officers who
manage the public business for each civil neighborhood were called,
not selectmen or supervisors, as at the North, but vestrymen. Among
the functions conferred by the law upon these local officers in
Virginia was that of hiring the rector or minister, and of paying him
his salary; and the same authority which gave to the vestry this power
fixed likewise the precise amount of salary which they were to pay.
Ever since the early days of the colony, this amount had been stated,
not in money, which hardly existed there, but in tobacco, which was
the staple of the colony. Sometimes the market value of tobacco would
be very low,--so low that the portion paid to the minister would yield
a sum quite insufficient for his support; and on such occasions, prior
to 1692, the parishes had often kindly made up for such depreciation
by voluntarily paying an extra quantity of tobacco.[33] After 1692,
however, for reasons which need not now be detailed, this generous
custom seems to have disappeared. For example, from 1709 to 1714, the
price of tobacco was so low as to make its shipment to England, in
many instances, a positive loss to its owner; while the sale of it on
the spot was so disadvantageous as to reduce the minister's salary to
about L25 a year, as reckoned in the depreciated paper currency of the
colony. Of course, during those years, the distress of the clergy was
very great; but, whatever it may have been, they were permitted to
bear it, without any suggestion, either from the legislature or from
the vestries, looking toward the least addition to the quantity of
tobacco then to be paid them. On the other hand, from 1714 to 1720,
the price of tobacco rose considerably above the average, and did
something towards making up to the clergy the losses which they had
recently incurred. Then, again, from 1720 to 1724, tobacco fell to the
low price of the former period, and of course with the same results of
unrelieved loss to the clergy.[34] Thus, however, in the process of
time, there had become established, in the fiscal relations of each
vestry to its minister, a rough but obvious system of fair play. When
the price of tobacco was down, the parson was expected to suffer the
loss; when the price of tobacco was up, he was allowed to enjoy the
gain. Probably it did not then occur to any one that a majority of
the good people of Virginia could ever be brought to demand such a
mutilation of justice as would be involved in depriving the parson of
the occasional advantage of a very good market, and of making up for
this by always leaving to him the undisturbed enjoyment of every
occasional bad one. Yet it was just this mutilation of justice which,
only a few years later, a majority of the good people of Virginia were
actually brought to demand, and which, by the youthful genius of
Patrick Henry, they were too well aided in effecting.
Returning now from our brief tour into a period of Virginian history
just prior to that upon which we are at present engaged, we find
ourselves arrived at the year 1748, in which year the legislature of
Virginia, revising all previous regulations respecting the hiring
and paying of the clergy, passed an act, directing that every parish
minister should "receive an annual salary of 16,000 pounds of
tobacco, ... to be levied, assessed, collected, and paid" by the
vestry. "And if the vestry of any parish" should "neglect or refuse
to levy the tobacco due to the minister," they should "be liable to
the action of the party grieved ... for all damages which he ...
shall sustain by such refusal or neglect."[35] This act of the
colonial legislature, having been duly approved by the king, became
a law, and consequently was not liable to repeal or even to
suspension except by the king's approval. Thus, at the period now
reached, there was between every vestry and its minister a valid
contract for the annual payment, by the former to the latter, of
that particular quantity of tobacco,--the clergy to take their
chances as to the market value of the product from year to year.
Thus matters ran on until 1755, when, by reason of a diminished crop
of tobacco, the legislature passed an option law,[36] virtually
suspending for the next ten months the Act of 1748, and requiring the
clergy, at the option of the vestries, to receive their salaries for
that year, not in tobacco, but in the depreciated paper currency of
the colony, at the rate of two pence for each pound of tobacco due,--a
price somewhat below the market value of the article for that year.
Most clearly this act, which struck an arbitrary blow at the validity
of all contracts in Virginia, was one which exceeded the
constitutional authority of the legislature; since it suspended,
without the royal approval, a law which had been regularly ratified by
the king. However, the operation of this act was shrewdly limited to
ten months,--a period just long enough to accomplish its object, but
too short for the royal intervention against it to be of any direct
avail. Under these circumstances, the clergy bore their losses for
that year with some murmuring indeed, but without any formal
protest.[37]
Just three years afterward, in 1758, the legislature, with even less
excuse than before, passed an act[38] similar to that of 1755,--its
force, however, being limited to twelve months. The operation of this
act, as affecting each parish minister, may be conveyed in very few
words. In lieu of what was due him under the law for his year's
services, namely, 16,000 pounds of tobacco, the market value of which
for the year in question proved to be about L400 sterling, it
compelled him to take, in the paper money of the colony, the sum of
about L133. To make matters still worse, while the tobacco which was
due him was an instant and an advantageous medium of exchange
everywhere, and especially in England whence nearly all his merchant
supplies were obtained, this paper money that was forced upon him was
a depreciated currency even within the colony, and absolutely
worthless outside of it; so that the poor parson, who could never
demand his salary for any year until six full months after its close,
would have proffered to him, at the end, perhaps, of another six
months, just one third of the nominal sum due him, and that in a
species of money of no value at all except in Virginia, and even in
Virginia of a purchasing value not exceeding that of L20 sterling in
England.[39]
Nor, in justification of such a measure, could it be truthfully said
that there was at that time in the colony any general "dearth and
scarcity,"[40] or any such public distress of any sort as might
overrule the ordinary maxims of justice, and excuse, in the name of
humanity, a merely technical violation of law. As a matter of fact,
the only "dearth and scarcity" in Virginia that year was "confined to
one or two counties on James River, and that entirely owing to their
own fault;"[41] wherever there was any failure of the tobacco crop, it
was due to the killing of the plants so early in the spring, that such
land did not need to lie uncultivated, and in most cases was planted
"in corn and pease, which always turned to good account;"[42] and
although, for the whole colony, the crop of tobacco "was short in
quantity," yet "in cash value it proved to be the best crop that
Virginia had ever had" since the settlement of the colony.[43]
Finally, it was by no means the welfare of the poor that "was the
object, or the effect, of the law;" but it was "the rich planters"
who, first selling their tobacco at about fifty shillings the hundred,
and then paying to the clergy and others their tobacco debts at the
rate of sixteen shillings the hundred, were "the chief gainers" by the
act.[44]
Such, then, in all its fresh and unadorned rascality, was the famous
"option law," or "two-penny act," of 1758: an act firmly opposed, on
its first appearance in the legislature, by a noble minority of
honorable men; an act clearly indicating among a portion of the people
of Virginia a survival of the old robber instincts of our Norse
ancestors; an act having there the sort of frantic popularity that all
laws are likely to have which give a dishonest advantage to the debtor
class,--and in Virginia, unfortunately, on the subject of salaries due
to the clergy, nearly all persons above sixteen years of age belonged
to that class.[45]
At the time when this act was before the legislature for
consideration, the clergy applied for a hearing, but were refused.
Upon its passage by the two houses, the clergy applied to the acting
governor, hoping to obtain his disapproval of the act; but his reply
was an unblushing avowal of his determination to pursue any course,
right or wrong, which would bring him popular favor. They then sent
one of their own number to England, for the purpose of soliciting the
royal disallowance of the act. After a full hearing of both sides, the
privy council gave it as their opinion that the clergy of Virginia had
their "certain remedy at law;" Lord Hardwicke, in particular,
declaring that "there was no occasion to dispute about the authority
by which the act was passed; for that no court in the judicature
whatever could look upon it to be law, by reason of its manifest
injustice alone."[46] Accordingly, the royal disallowance was granted.
Upon the arrival in Virginia of these tidings, several of the clergy
began suits against their respective vestries, for the purpose of
compelling them to pay the amounts then legally due upon their
salaries for the year 1758.
Of these suits, the first to come to trial was that of the Rev. Thomas
Warrington, in the County Court of Elizabeth City. In that case, "a
jury of his own parishioners found for him considerable damages,
allowing on their oaths that there was above twice as much justly due
to him as the act had granted;"[47] but "the court hindered him from
immediately coming at the damages, by judging the act to be law, in
which it is thought they were influenced more by the fear of giving
offense to their superiors, than by their own opinion of the
reasonableness of the act,--they privately professing that they
thought the parson ought to have his right."[48]
Soon afterward came to trial, in the court of King William County, the
suit of the Rev. Alexander White, rector of St. David's parish. In
this case, the court, instead of either sustaining or rejecting the
disallowed act, simply shirked their responsibility, "refused to
meddle in the matter, and insisted on leaving the whole affair to the
jury;" who being thus freed from all judicial control, straightway
rendered a verdict of neat and comprehensive lawlessness: "We bring in
for the defendant."[49]
It was at this stage of affairs that the court of Hanover County
reached the case of the Rev. James Maury, rector of Fredericksville
parish, Louisa; and the court, having before it the evidence of the
royal disallowance of the Act of 1758, squarely "adjudged the act to
be no law." Of course, under this decision, but one result seemed
possible. As the court had thus rejected the validity of the act
whereby the vestry had withheld from their parson two thirds of his
salary for the year 1758, it only remained to summon a special jury on
a writ of inquiry to determine the damages thus sustained by the
parson; and as this was a very simple question of arithmetic, the
counsel for the defendants expressed his desire to withdraw from the
case.
Such was the situation, when these defendants, having been assured by
their counsel that all further struggle would be hopeless, turned for
help to the enterprising young lawyer who, in that very place, had
been for the previous three and a half years pushing his way to notice
in his profession. To him, accordingly, they brought their cause,--a
desperate cause, truly,--a cause already lost and abandoned by veteran
and eminent counsel. Undoubtedly, by the ethics of his profession,
Patrick Henry was bound to accept the retainer that was thus tendered
him; and, undoubtedly, by the organization of his own mind, having
once accepted that retainer, he was likely to devote to the cause no
tepid or half-hearted service.
The decision of the court, which has been referred to, was rendered at
its November session. On the first day of the session in December, the
order was executed for summoning a select jury "to examine whether the
plaintiff had sustained any damages, and what."[50] Obviously, in the
determination of these two questions, much would depend on the
personal composition of the jury; and it is apparent that this matter
was diligently attended to by the sheriff. His plan seems to have been
to secure a good, honest jury of twelve adult male persons, but
without having among them a single one of those over-scrupulous and
intractable people who, in Virginia, at that time, were still
technically described as gentlemen. With what delicacy and efficiency
he managed this part of the business was thus described shortly
afterward by the plaintiff, of course a deeply interested
eye-witness:--
"The sheriff went into a public room full of gentlemen, and
told his errand. One excused himself ... as having already
given his opinion in a similar case. On this, ... he
immediately left the room, without summoning any one person
there. He afterwards met another gentleman ... on the green,
and, on saying he was not fit to serve, being a church
warden, he took upon himself to excuse him, too, and, as far
as I can learn made no further attempts to summon
gentlemen.... Hence he went among the vulgar herd. After he
had selected and set down upon his list about eight or ten
of these, I met him with it in his hand, and on looking over
it, observed to him that they were not such jurors as the
court had directed him to get,--being people of whom I had
never heard before, except one whom, I told him, he knew to
be a party in the cause.... Yet this man's name was not
erased. He was even called in court, and had he not excused
himself, would probably have been admitted. For I cannot
recollect that the court expressed either surprise or
dislike that a more proper jury had not been summoned. Nay,
though I objected against them, yet, as Patrick Henry, one
of the defendants' lawyers, insisted they were honest men,
and, therefore, unexceptionable, they were immediately
called to the book and sworn."[51]
Having thus secured a jury that must have been reasonably
satisfactory to the defendants, the hearing began. Two gentlemen,
being the largest purchasers of tobacco in the county, were then sworn
as witnesses to prove the market price of the article in 1759. By
their testimony it was established that the price was then more than
three times as much as had been estimated in the payment of paper
money actually made to the plaintiff in that year. Upon this state of
facts, "the lawyers on both sides" proceeded to display "the force and
weight of the evidence;" after which the case was given to the jury.
"In less than five minutes," they "brought in a verdict for the
plaintiff,--one penny damages."[52]
Just how the jury were induced, in the face of the previous judgment
of that very court, to render this astounding verdict, has been
described in two narratives: one by William Wirt, written about fifty
years after the event; the other by the injured plaintiff himself, the
Rev. James Maury, written exactly twelve days after the event. Few
things touching the life of Patrick Henry can be more notable or more
instructive than the contrast presented by these two narratives.
On reaching the scene of action, on the 1st of December, Patrick Henry
"found," says Wirt,--
"on the courtyard such a concourse as would have appalled
any other man in his situation. They were not people of the
county merely who were there, but visitors from all the
counties to a considerable distance around. The decision
upon the demurrer had produced a violent ferment among the
people, and equal exultation on the part of the clergy, who
attended the court in a large body, either to look down
opposition, or to enjoy the final triumph of this hard
fought contest, which they now considered as perfectly
secure.... Soon after the opening of the court the cause was
called.... The array before Mr. Henry's eyes was now most
fearful. On the bench sat more than twenty clergymen, the
most learned men in the colony.... The courthouse was
crowded with an overwhelming multitude, and surrounded with
an immense and anxious throng, who, not finding room to
enter, were endeavoring to listen without in the deepest
attention. But there was something still more awfully
disconcerting than all this; for in the chair of the
presiding magistrate sat no other person than his own
father. Mr. Lyons opened the cause very briefly.... And now
came on the first trial of Patrick Henry's strength. No one
had ever heard him speak,[53] and curiosity was on tiptoe.
He rose very awkwardly, and faltered much in his exordium.
The people hung their heads at so unpromising a
commencement; the clergy were observed to exchange sly looks
with each other; and his father is described as having
almost sunk with confusion, from his seat. But these
feelings were of short duration, and soon gave place to
others of a very different character. For now were those
wonderful faculties which he possessed, for the first time
developed; and now was first witnessed that mysterious and
almost supernatural transformation of appearance, which the
fire of his own eloquence never failed to work in him. For
as his mind rolled along, and began to glow from its own
action, all the exuviae of the clown seemed to shed
themselves spontaneously. His attitude, by degrees, became
erect and lofty. The spirit of his genius awakened all his
features. His countenance shone with a nobleness and
grandeur which it had never before exhibited. There was a
lightning in his eyes which seemed to rive the spectator.
His action became graceful, bold, and commanding; and in the
tones of his voice, but more especially in his emphasis,
there was a peculiar charm, a magic, of which any one who
ever heard him will speak as soon as he is named, but of
which no one can give any adequate description. They can
only say that it struck upon the ear and upon the heart, in
a manner which language cannot tell. Add to all these, his
wonder-working fancy, and the peculiar phraseology in which
he clothed its images: for he painted to the heart with a
force that almost petrified it. In the language of those who
heard him on this occasion, 'he made their blood run cold,
and their hair to rise on end.'
"It will not be difficult for any one who ever heard this
most extraordinary man, to believe the whole account of this
transaction which is given by his surviving hearers; and
from their account, the court house of Hanover County must
have exhibited, on this occasion, a scene as picturesque as
has been ever witnessed in real life. They say that the
people, whose countenance had fallen as he arose, had heard
but a very few sentences before they began to look up; then
to look at each other with surprise, as if doubting the
evidence of their own senses; then, attracted by some strong
gesture, struck by some majestic attitude, fascinated by the
spell of his eye, the charm of his emphasis, and the varied
and commanding expression of his countenance, they could
look away no more. In less than twenty minutes, they might
be seen in every part of the house, on every bench, in every
window, stooping forward from their stands, in death-like
silence; their features fixed in amazement and awe; all
their senses listening and riveted upon the speaker, as if
to catch the least strain of some heavenly visitant. The
mockery of the clergy was soon turned into alarm; their
triumph into confusion and despair; and at one burst of his
rapid and overwhelming invective, they fled from the house
in precipitation and terror. As for the father, such was his
surprise, such his amazement, such his rapture, that,
forgetting where he was, and the character which he was
filling, tears of ecstasy streamed down his cheeks, without
the power or inclination to repress them.
"The jury seem to have been so completely bewildered, that
they lost sight not only of the Act of 1748, but that of
1758 also; for, thoughtless even of the admitted right of
the plaintiff, they had scarcely left the bar, when they
returned with a verdict of one penny damages. A motion was
made for a new trial; but the court, too, had now lost the
equipoise of their judgment, and overruled the motion by an
unanimous vote. The verdict and judgment overruling the
motion were followed by redoubled acclamations, from within
and without the house. The people, who had with difficulty
kept their hands off their champion from the moment of
closing his harangue, no sooner saw the fate of the cause
finally sealed, than they seized him at the bar; and in
spite of his own exertions, and the continued cry of order
from the sheriffs and the court, they bore him out of the
courthouse, and raising him on their shoulders, carried him
about the yard, in a kind of electioneering triumph."[54]
At the time when Wirt wrote this rhapsody, he was unable, as he tells
us, to procure from any quarter a rational account of the line of
argument taken by Patrick Henry, or even of any other than a single
topic alluded to by him in the course of his speech,--they who heard
the speech saying "that when it was over, they felt as if they had
just awaked from some ecstatic dream, of which they were unable to
recall or connect the particulars."[55]
There was present in that assemblage, however, at least one person who
listened to the young orator without falling into an ecstatic dream,
and whose senses were so well preserved to him through it all that he
was able, a few days afterward, while the whole occasion was fresh in
his memory, to place upon record a clear and connected version of the
wonder-working speech. This version is to be found in a letter written
by the plaintiff on the 12th of December, 1763, and has been brought
to light only within recent years.
After giving, for the benefit of the learned counsel by whom the cause
was to be managed, on appeal, in the general court, a lucid and rather
critical account of the whole proceeding, Maury adds:--
"One occurrence more, though not essential to the cause, I
can't help mentioning.... Mr. Henry, mentioned above (who
had been called in by the defendants, as we suspected, to do
what I some time ago told you of), after Mr. Lyons had
opened the cause, rose and harangued the jury for near an
hour. This harangue turned upon points as much out of his
own depth, and that of the jury, as they were foreign from
the purpose,--which it would be impertinent to mention here.
However, after he had discussed those points, he labored to
prove 'that the Act of 1758 had every characteristic of a
good law; that it was a law of general utility, and could
not, consistently with what he called the original compact
between the king and people ... be annulled.' Hence he
inferred, 'that a king, by disallowing acts of this salutary
nature, from being the father of his people, degenerated
into a tyrant, and forfeits all right to his subjects'
obedience.' He further urged 'that the only use of an
established church and clergy in society, is to enforce
obedience to civil sanctions, and the observance of those
which are called duties of imperfect obligation; that when a
clergy ceases to answer these ends, the community have no
further need of their ministry, and may justly strip them of
their appointments; that the clergy of Virginia, in this
particular instance of their refusing to acquiesce in the
law in question, had been so far from answering, that they
had most notoriously counteracted, those great ends of their
institution; that, therefore, instead of useful members of
the state, they ought to be considered as enemies of the
community; and that, in the case now before them, Mr. Maury,
instead of countenance, and protection, and damages, very
justly deserved to be punished with signal severity.' And
then he perorates to the following purpose, 'that excepting
they (the jury) were disposed to rivet the chains of bondage
on their own necks, he hoped they would not let slip the
opportunity which now offered, of making such an example of
him as might, hereafter, be a warning to himself and his
brethren, not to have the temerity, for the future, to
dispute the validity of such laws, authenticated by the only
authority which, in his conception, could give force to laws
for the government of this colony,--the authority of a legal
representative of a council, and of a kind and benevolent
and patriot governor.' You'll observe I do not pretend to
remember his words, but take this to have been the sum and
substance of this part of his labored oration. When he came
to that part of it where he undertook to assert 'that a
king, by annulling or disallowing acts of so salutary a
nature, from being the father of his people, degenerated
into a tyrant, and forfeits all right to his subjects'
obedience,' the more sober part of the audience were struck
with horror. Mr. Lyons called out aloud, and with an honest
warmth, to the Bench, 'that the gentleman had spoken
treason,' and expressed his astonishment, 'that their
worships could hear it without emotion, or any mark of
dissatisfaction.' At the same instant, too, amongst some
gentlemen in the crowd behind me, was a confused murmur of
'treason, treason!' Yet Mr. Henry went on in the same
treasonable and licentious strain, without interruption from
the Bench, nay, even without receiving the least exterior
notice of their disapprobation. One of the jury, too, was so
highly pleased with these doctrines, that, as I was
afterwards told, he every now and then gave the traitorous
declaimer a nod of approbation. After the court was
adjourned, he apologized to me for what he had said,
alleging that his sole view in engaging in the cause, and in
saying what he had, was to render himself popular. You see,
then, it is so clear a point in this person's opinion that
the ready road to popularity here is to trample under foot
the interests of religion, the rights of the church, and the
prerogatives of the crown."[56]
FOOTNOTES:
[33] Perry, _Hist. Coll._ i. 12.
[34] Perry, _Hist. Coll._ 316, 317.
[35] Hening, _Statutes at Large_, vi. 88, 89.
[36] _Ibid._ vi. 568, 569.
[37] Perry, _Hist. Coll._ i. 508, 509.
[38] Hening, _Statutes at Large_, vii. 240, 241.
[39] Perry, _Hist. Coll._ i. 467, 468.
[40] As was alleged in Richard Bland's _Letter to the Clergy_, 17.
[41] Perry, _Hist. Coll._ i. 467.
[42] _Ibid._ i. 466.
[43] _Ibid._ i. 465, 466.
[44] Meade, _Old Families of Virginia_, i. 223.
[45] In the account here given of these Virginia "option laws," I have
been obliged, by lack of space, to give somewhat curtly the bald
results of rather careful studies which I have made upon the question
in all accessible documents of the period; and I have not been at
liberty to state many things, on both sides of the question, which
would be necessary to a complete discussion of the subject. For
instance, among the motives to be mentioned for the popularity of laws
whose chief effects were to diminish the pay of the established
clergy, should be considered those connected with a growing dissent
from the established church in Virginia, and particularly with the
very human dislike which even churchmen might have to paying in the
form of a compulsory tax what they would have cheerfully paid in the
form of a voluntary contribution. Perhaps the best modern defense of
these laws is by A. H. Everett, in his _Life of Henry_, 230-233; but
his statements seem to be founded on imperfect information. Wirt,
publishing his opinion under the responsibility of his great
professional and official position, affirms that on the whole
question, "the clergy had much the best of the argument." _Life of
Henry,_ 22.
[46] Perry, _Hist. Coll._ i. 510.
[47] _Ibid._ i. 513, 514.
[48] _Ibid._ i. 496, 497.
[49] Perry, _Hist. Coll._ i. 497.
[50] Maury, _Mem. of a Huguenot Family_, 419.
[51] Maury, _Mem. of a Huguenot Family_, 419, 420.
[52] _Ibid._ 420.
[53] This cannot be true except in the sense that he had never before
spoken to such an assemblage or in any great cause.
[54] Wirt, 23-27.
[55] _Ibid._ 29.
[56] Maury, _Mem. of a Huguenot Family_, 418-424, where the entire
letter is given in print for the first time.