Makers of American history: Patrick Henry

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Book lAi

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Chapter II

The Parson's Cause. — First Remarkable Exhibition of Henry's Eloquence.

The account of the Parsons' Cause is one of those passages in the Hfe of Henry in which poetry appears to be in some degree mingled with truth; nor is it easy, with the information now before us, to say with entire certainty what parts of the narrative appertain respectively to one or the other of these departments. The particulars of the affair are briefly as follows :

The Parsons' Cause was an action brought by the Rev. James Maury, in the county court of Hanover County, against the collector of taxes for that county and his sureties, for the recovery of damages for the non-payment of a certain quantity of tobacco, alleged to be due to him on account of his salary. The claim was founded in a statute of the colony, originally passed in the year 1696, and reenacted with amendments, in the year 1748, which fixed the annual stipend of a parish minister at sixteen thousand pounds of tobacco, and authorized him to demand payment in the article itself. He was, of course, at liberty to receive it in any other way that might suit his convenience. The common market price of tobacco had, for a long time, remained stationary at two pence the pound, or sixteen shilHngs and eight pence the hundred, and the clergy were in the habit of commuting the delivery of the article in kind for a money payment calculated on this basis.

In the year 1755, the crop of tobacco having fallen short, the price rose to fifty or sixty shillings the hundred. In order to relieve the planters from the effect of this accidental change in the value of the article, the Legislature passed an Act authorizing them, for the present year, to pay in money such of these debts as might be due in tobacco, at the rate of sixteen shillings and eight pence the hundred. The Act was to continue in force for ten months, and went into effect immediately, not having contained the clause which was usually inserted in the Acts of the Colonial Legislature, suspending their operation until they should receive the royal assent. No opposition was made by the clergy to the execution of this law, which was regularly carried into effect during the period for which it was enacted.

Three years afterwards, in the year 1758, in consequence of the probability of the occurrence of another short crop, the law of 1755 was reenacted, and, as before, without the clause requiring the royal assent. The clergy now took alarm, and the measure was attacked in a vigorous pamphlet, entitled The Two-penny Act, published by the Rev. John Camm, rector of York-Hampton parish, and Episcopalian commissary for the colony. He was answered in two pamphlets, one written by Colonel Richard Bland, and the other by Colonel Landon Carter, in which the commissary was treated without much ceremony. He repHed in a still more pointed pamphlet, entitled The Colonels Dismounted. The colonels rejoined, and a war of pamphlets followed, which created great excitement throughout the colony. The popular sentiment appears to have been adverse to the pretensions of the clergy, and at length became so strong that the printers within the colony refused to publish for them, so that Mr. Camm was finally compelled to resort to Maryland for a publisher.

The pamphlets which were elicited by this controversy are still extant, and Mr. Wirt remarks, that '' It seems impossible to deny, at this day that the clergy had much the best of the argument." This, however, seems to be a merely technical view of the subject, founded on the idea that the colonial laws were not valid without the royal assent and that the clergy had, of course, retained throughout the whole afifair all the rights that were vested in them by the Act of 1748. Such, probably, was the correct construction of the law ; but it seems to be clear that the equity of the affair was on the other side, and that, so far as the argument turned upon any other topic than that of strict legal right, the planters were able to make "out a very strong case. The Act of 1748 was a liberal and beneficial statute, intended to secure the clergy against the effect of fluctuations in the value of money ; and it was hardly fair or honorable in the clergy to take advantage of this act of liberality in the planters, to extort from them, in a time of scarcity, triple the amount of the usual stipend. If the rise in the price of tobacco had been the effect of a depreciation in the vahie of money, and had extended to all other articles, the equity would have been with the clergy, because they could not have obtained the real value of their usual stipend without receiving it in kind.

But as the rise took place in the article of tobacco only, being the effect of a short crop, while the value of money remained the same, the clergy, by commuting the payment in tobacco for a money payment at the former price, would have received the full amount of their usual salary, and this was all that they could fairly claim. Mr. Wirt remarks that they could not help observing the benefits resulting from the Act to the rich planters, who received fifty or sixty shillings the hundred for their tobacco, while they were paying their tobacco debts at the rate of sixteen shillings and eight pence. He does not seem to have recollected that the rise in the price of tobacco was the effect of a reduction in the quantity. If the planter, by selling a crop of only a-third of the ordinary amount for three times the usual price was able to avoid the injurious effect of a short crop, he was still in no better condition than he would have been if the rise had not occurred; and if he paid his tobacco debts in kind at the existing high prices he sustained an actual loss equal to two-thirds of the amount due. It was not fair, as has been remarked, for the clergy to extort this difference under pretence of a law which the planters had passed for the relief and benefit of the order. If, therefore, the law was with the clergy, the equity was clearly with the planters. The legal objection to the Act of 1748 was also one of the narrowest kind, and was, in reality, scarcely tenable.

Admitting, as a general rule, that the Acts of a Colonial Legislature were not valid without the royal assent, it could not well be denied that a legislature, situated at such an immense distance from the mother country, must be supposed to possess some discretionary power to proceed without direct authority from home in a case of real necessity, and this was obviously one of that kind. The state of the crop could not be ascertained much in advance of tly* time when it would be brought to market; and, in order to meet the emergency, the law must be enacted and carried into effect, before, in that day of protracted voyages and slow communications, there would be time to submit it to the eye of majesty. If substantial justice required the adoption of such a measure, and it was really impossible, under the circumstances, to have the royal assent, the Act might well have been regarded, even without such assent, as technically valid; more especially as the mutual prerogatives of the local and imperial governments were far from being accurately settled. At all events, the right, taking into view both law and equity, was by no means so clearly on the side of the clergy as Mr. Wirt represents it; and it is not at all surprising that the champions of the planters, arguing the case as they probably did chiefly on grounds of common sense and substantial justice, were able to make a strong impression upon the minds of the people.

The affair was brought before the king in council ; and that body, sustaining naturally enough the construction of the law, and favorable to the royal prerogative, declared the Act of 1758 null and void for want of the royal assent. Finding themselves supported in their pretensions by this high authority, the clergy undertook to enforce them by legal process, and commenced a number of suits for the recovery of their salaries in tobacco, of which that institution by Maury was one. Another of the same kind was commenced in the same county by the Rev. Patrick Henry, who has already been mentioned as the orator's uncle. The fact that Henry was not employed by his uncle in this interesting cause is a strong proof that little was yet expected, even by those who knew him best, and felt the deepest interest in his welfare, from his future efforts in his new profession.

The plaintiff, in this case of Maury, as I have remarked before, founded his claim on the statute of 1748. The defendant pleaded specially that of 1758 ; and to this plea the plaintiff demurred ; or, in other words, replied that this Act could not operate, in law, to set aside the plaintiff's claim ; first, because it had not received the royal assent, and, secondly, because it had been declared null and void by the king in council. The legal question was argued at the November term of the year 1763, by Mr. Lyons for the plaintiff, and Mr. John Lewis for the defendants, when the court, " very much," says Mr. Wirt, '' to the credit of their candor and firmness, breasted the popular current by sustaining the demurrer."

The clergy, having obtained a decision of the court in their favor, on the only objection that had been raised by the planters, naturally considered their cause as gained. It only remained for a jury to give the damages; but this was regarded as a merely formal proceeding, because the amount was supposed to be settled by the statute of 1748. The action was continued for this purpose; but the counsel for the defendants, Mr. Lewis, viewing the only point of importance as settled, and his services as no longer necessary, retired from the case. It was at this stage in the progress of the affair, and in consequence of the retirement of Mr. Lewis, that Patrick Henry was retained by the defendants. Probably the case was now supposed to have been brought within so narrow a compass that it might be safely intrusted to a junior member of the bar hitherto unknown to the public.

Whatever may have been the views of the defendants in retaining him, Henry, on being applied to, consented to take charge of the affair, and to argue the question of damages before the jury. The case came on for trial on the ist of December, 1763, before the county court, in which the father of Henry sat as presiding magistrate. The position of the young barrister was, in fact, a rather singular one. He was to speak for the first time in open court before his own father as presiding magistrate, in a case in which the court had already given a deliberate opinion in favor of the other party, and in which his uncle was interested against him.

The excitement on the subject was so great throughout the colony that, even at this late period in the proceedings, a large audience attended, not only from Hanover, but from the neighboring counties. The clergy, in particular, appeared in great force, and among them came the orator's uncle. On seeing him approach, Henry walked up to him, in company with Colonel Meredith, and expressed his regret at seeing his uncle there. " Why so? " inquired the uncle. " Because," replied Henry, *' I fear that, as I have never yet spoken in public, I shall be too much overawed by your presence to do justice to my clients. Besides," he added, " I shall be under the necessity of saying some hard things of the clergy, which it may be unpleasant to you to hear." His uncle now censured him for having undertaken the case on the side of the planters, which Henry excused by saying that he had had no offer from the clergy ; and that, independently of this, his own heart and judgment were on the side of the people. He then requested his uncle to leave the ground. '' Why, Patrick," said the old gentleman, with a good-natured smile, " as to your saying hard things of the clergy, I advise you to be cautious, as you will be more likely to injure your own cause than theirs. As to my leaving the ground, I fear, my boy, that, with such a case to defend, my presence will do you but little harm or good. Since, however, you seem to think otherwise, and desire it of me so earnestly, you shall be gratified." He then entered his carriage again and returned home.

This little anecdote, which I have given nearly in the words of Mr. Wirt, is equally creditable to both parties, and affords a pleasing proof of the mutual good-feeling, which, under somewhat trying circumstances, was maintained among the different members of the family. It is impossible to do full justice to the scene that followed without quoting the description of it in the language of the eloquent biographer.

'' Soon after the opening of the court, the cause was called. It stood on a writ of inquiry of damages, no plea having been entered by the defendants since the judgment on the demurrer. 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, and the most capable, as well as the severest critics before whom it was possible for him to have made his debut. The court-house was crowded with an overwhelming multitude, and surrounded w^ith an immense and anxious throng, which, not finding room to enter, was 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 case very briefly. In the way of argument he did nothing more than explain to the jury that the decision upon the demurrer had put the Act of 1758 entirely out of the way, and left the law of 1748 as the only standard of damages. He then concluded with a highly- wrought eulogium on the benevolence of the clergy.

" And now came on the first trial of Patrick Henry's strength. No one had ever heard him speak.

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 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 exuvicu 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 that seemed to rivet 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 ivhich language cannot relate. Add to all these his wonder-working fancy, and the peculiar phraseology in which he clothed his 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 at Hanover must have exhibited, on this occasion, a scene as picturesque as has ever been witnessed in real life. They say that the people, whose countenances 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 last 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 bench 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

A. B., VOL. in.— 3 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 of 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 a 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 his 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 sheriff and the court, they bore him out of the court-house, and, raising him on their shoulders, carried him about the yard in a kind of electioneering triumph."

His father is represented as having been so much overwhelmed as to lose, for the time, the power of expressing his feelings. A few days after, in conversation with his brother-in-law, Judge Winston, he alluded to the scene in the following simple terms, which contrast rather singularly with the gorgeous phraseology of Mr. Wirt. " Patrick spoke in this cause near an hour, and in a manner that surprised me. He showed himself well-informed upon a subject of which I did not think he had any knowledge.**

" I have tried much/' continues Mr. Wirt, *' to procure a sketch of this celebrated speech. But those of Mr. Henry's hearers who survive seem to have been bereft of their senses. They can only tell you, in general, that they were taken captive, and were so delighted with their captivity that they followed implicitly whithersoever he led them; that, at his bidding, their tears flowed from pity and their cheeks flushed with indignation; that, when it was over, they felt as if they had just awakened from some ecstatic dream, of which they were unable to recall or connect the particulars. It was such a speech as they believe had never before fallen from the lips of man ; and, to this day, the old people of that county cannot conceive that a higher compliment can be paid to a speaker than to say of him, in their own homely phrase, ' He is almost equal to Patrick, when he pleaded against the parsons.' "

In this account of the character and effect of Henry's argument there is obviously a large mixture of the poetical element, carried, in fact, rather beyond the limits of good-taste in the forms of expression. The main facts are, however, of such a kind that they cannot well have been fabricated or misrepresented. The verdict of the jury and the opinions of the court are matters of record; the eager attention of the audience during the argument, and the popular triumph at the close, are quite in accordance with the general character of the scene. The only statement of fact that wears a rather doubtful appearance is " the flight of the clergy in precipitation and terror from the bench." Whatever disgust or indignation may have been excited iti their minds by the invectives of Henry, there was no reason to apprehend any danger to their personal safety.

The fact, probably, was that one or more, possibly the whole body of the clergy, on escertaining the line of argument which he intended to pursue retired from the bench, not in terror, but from unwillingness to listen to a furious attack on their own Order. The irregularity of the proceeding does not seem to have been quite so great as Mr. Wirt represents it. He says that the subject of the Act of 1758, and the order of council respecting it, had been disposed of at the preceding term, and that, strictly speaking, neither Henry nor the jury had anything to do with this part of the case; that the jury, in giving merely nominal damages, had lost sight, not only of the Act of 1758, but of that of 1748, and of the admitted right of the plaintiff ; and that the court, in overruling the motion for a new trial, showed that '' they had lost the equipoise of their judgment." He can only account for such proceedings in part by the supposed laxity of the county court practice, and in part by the overwhelming effect of Henry's eloquence.

In reality, however, although the court had decided at the preceding term that the demurrer was good in law, it remained for the jury to settle, as a question of fact, the amount of damage actually suffered. Supposing the law to be with the clergy, substantial justice might still be on the other side; and in that case the damage sustained by the clergy was of the kind described in the books as damnum absque injuria (damage without injury). In such a case, a verdict of nominal damages is obviously the proper one, the precise object of such a verdict being to recognize the existence of a legal right on one side, and an equitable one on the other ; nor does it appear that the court had any sufficient motive for granting a new trial. The law question had been decided at the preceding term, agreeably to the views of the party making the motion, and, of course, did not require to be reconsidered. The verdict of the jury, whether right or wrong, was within the form of law, and was liable to no exception which would justify an application for a new trial.

The case, as I have remarked before, was a good deal stronger against the clergy than Mr. Wirt is inclined to represent it, and seems, on the whole, to have been disposed of, at every stage of the proceedings, in a manner very creditable to the firmness and independence of the parties to which it was successively submitted. The court, composed probably for the most part of planters, evinced a laudable disinterestedness in deciding the demurrer against themselves, and in favor of the clergy. The jury exhibited both intelligence and independence in taking the course which enabled them to reconcile substantial justice with the form of law; and the court, in overruling the motion for a new trial, only carried into effect the common rules of proceeding.

It is highly probable that the eloquence of Henry operated powerfully on the minds of the court and jury, as well as on those of the audience; but it is certain that its efifect must have been greatly heightened by the strong sympathy that prevailed throughout the community with the party which he supported, and the universal disposition of his hearers to receive with favor everything that he might say. Without intending any disparagement to his talents, we may perhaps, conclude with safety that the strong excitement which existed in regard to the question at issue furnishes the true key to the more extravagant, and otherwise almost incredible, incidents that marked the proceedings in the trial of the Parsons' Cause. While it was in Henry a strong proof of real power, that, on appearing for the first time as an advocate, he was able to meet the exigencies of such a scene, it was also an instance of good-fortune to have been called upon to make his debut in a case in which he necessarily carried with him the full current of popular feeling, and thus to enter, under the most favorable auspices, upon his professional career. Without adverting to the extraordinary interest felt at the time in this case, it would be difficult to account for the fact that, in the long course of his subsequent efforts in so many different fields, he never seems to have surpassed, if, indeed, he ever quite equalled, the impression which he made upon this occasion, and that the argument in the Parsons' Cause is still cited as the ne phis ultra of his unrivalled eloquence.

Of the topics treated in this celebrated speech, the only one of which any account has been preserved, is that of the validity of the Act of 1758, and of the proceedings respecting it by the king in council. Henry is represented by Mr. Wirt, on the authority, as I understand him, of oral tradition, as having maintained that government was in the nature of a compact between the king and the people; that the king, on faihng to secure his subjects in Virginia against the results of a short crop of tobacco, had violated this compact, and thereby discharged the other party from the duty of executing it ; and that the people had provided for their own safety by the Act of 1758, the validity of which was in no way affected by the declaration of its nullity from the king in council. This is not, perhaps, the strongest form in which the argument on this topic could have been presented for the purpose which Henry had in view. It is not improbable that his reasoning may have been somewhat misrepresented in passing through the mouths of oral reporters. The object of Henry was to obtain a verdict of nominal damages, by showing that, wherever the legal right might be, substantial justice was on the side of the planters. In this purpose it was not necessary to argue that the king was bound by the social compact to secure the Virginia planters against the results of a short crop of tobacco, which he could not well be expected to do, or that the order in council, annulling the Act of 1758, had no legal validity.

The natural course of the argument would be that the clergy had no claim in justice to triple their salaries at the expense of the planters, in consequence of an accidental rise in the value of a particular article; that, in founding such a claim upon a circumstance which was in itself in the nature of a public calamity, the clergy acted inconsistently with their professional character ; that the legislature, in securing the planters by law against such a pretension, proceeded in accordance with the dictates of natural justice; that, under the pecuHar circumstances of the case, it was physically impossible to obtain the king's assent to the law, and that the legislature were consequently justified by necessity in proceeding without it ; and that the subsequent declaration of the council, however it might affect the validity of the law, could not affect the equity of the case, nor consequently impair the right of the plaintiff to a verdict of merely nominal damages. This is the argument which would naturally have been suggested by the aspect under which the case was presented. It is tenable in all its points, and only required to be stated with power and eloquence, in order to carry conviction to the mind of every hearer. The development of it would naturally include a course of severe animadversion on the conduct of the clergy, in seeking to fatten on the public distress; but it would not have been necessary to insist on any views of the law inconsistent with those which had already been taken by the court. It may therefore be presumed that it is the outline of the argument adopted by Henry.