Lion of Liberty

by Harlow Giles Unger

  With his father, step brother, and five other family members presiding in the Hanover County Court, it was not surprising that Patrick Henry proved phenomenally successful—so much so that he attracted clients from the farthest points of neighboring counties to appear with him in his father’s court. In the closing months of 1760 after receiving his license, Patrick Henry handled 197 cases; by 1763 his caseload had climbed to 374 and his income had reached more than £600, or about $42,500 in today’s currency—an enormous sum in eighteenth-century rural Virginia. In the first three years of practice, he handled 1,185 suits, in addition to preparing legal documents and dispensing legal advice in his father-in-law’s tavern.

  To his credit, Henry kept his word to Nicholas and studied the full range of legal texts, including Sir William Blackstone’s Commentaries on the Laws of England, William Bohun’s Declarations and Pleadings, Giles Jacob’s The Compleat Chancery-Practiser, Samuel Pufendorf’s The Law of Nature and Nations, and other tomes. Little by little, he acquired as much knowledge of British law as any lawyer in Virginia, and on December 1, 1763, after three years of practicing mostly “paper law,” he stepped onto center stage for his inaugural appearance in a major courtroom drama—the Parsons’ Cause.

  But as his father the judge and the rest of the packed courtroom awaited his closing argument, Patrick Henry stood silent, his head bowed, staring at the floor, apparently at a loss for words. His clients could only fear the worst for their case.

  Chapter 2

  Tongue Untied

  Patrick Henry’s clients had good reason to despair. Depending on his summation, many could lose their properties and all their assets. In an earlier trial, the court had already found them guilty of failure to pay their taxes to the Anglican Church, as required by law—regardless of their religion. This was their second trial to determine how much they owed—a far more complex calculation than it might seem.

  In the absence of currency, Virginia required each parish to pay the Anglican minister 16,000 pounds of tobacco a year, which the minister then sold in the open market. Parish landowners paid into the total in proportion to the acreage they had under cultivation. Ministers earned more when tobacco prices rose and absorbed losses when they fell, but over the years they earned an average of about two pence per pound. In 1758, however, a catastrophic drought devastated Virginia’s tobacco crop, sending tobacco prices to record highs but reducing tobacco stocks to levels that would have left many planters bankrupt, without any tobacco left to sell if they delivered the required 16,000 pounds of tobacco to each parish priest. Virginia’s legislature—the House of Burgesses—passed the Twopenny Act, to permit each parish to pay its minister in cash instead of tobacco at the average rate that ministers had earned in the sixty years the tobacco tax had been in effect—namely, two pence a pound, or a total of about V£133 (Virginia currency), instead of 16,000 pounds of tobacco.

  The drought, however, had sent the actual market value of tobacco soaring to more than three times that amount, and each minister would have earned about V£400 had he been paid in tobacco and sold it on the open market. With the richest planters profiting most from high tobacco prices, the outraged ministers protested, saying that the House of Burgesses had no authority to alter what was “the king’s law” on church taxes. They sent lawyers to London, where the British government agreed—and voided the Twopenny Act. The ministers then sued their respective parishes for payment of the difference between the two pennies per pound they received in 1758 and the market value of the 16,000 pounds of tobacco that they should have received. The Reverend James Maury, a renowned scholar who had tutored young Thomas Jefferson and prepared him for the College of William and Mary, filed his suit in the County Court of Hanover before the devout Anglican Justice John Henry. Henry declared the Twopenny Act to have been “no law,” ruled in favor of Reverend Maury, and ordered a second trial to determine damages.

  Believing that Justice Henry’s decision had made the amount of damages a mere formality, the lawyer for parishioners quit the case, telling his clients to await the inevitable jury determination and pay Reverend Maury his due. Refusing to face trial without counsel, however, the vestrymen turned to young Patrick Henry, with hopes that, given his uncle’s ties to the church, he might persuade Reverend Maury to reduce his monetary demands enough to permit local farmers to avoid bankruptcy.

  Reverend Maury’s renown drew a larger than normal crowd to the Hanover County Courthouse. Anxiety and anger tinged the usual holiday mood, as prosperous planters mixed with ordinary farmers and their relatives from Maury’s parish—all of them stern-faced over the prospect of paying the minister his pound of flesh. Adding to the agitation was a large group of dissenters—Presbyterians and the like—who resented having to pay taxes to the Anglican Church and had vague hopes of turning the trial into a protest against church-state ties. As would-be spectators streamed toward the courthouse, hawkers extolled the benefits of white lightning, patent medicines, livestock, young slaves, and whatever else they hoped to sell. As Patrick Henry approached the courthouse, he saw his uncle’s carriage arrive and, fearing that his uncle’s presence might sway jurors, he ran up to plead with him not to attend the trial.

  “Why?” said the surprised clergymen.

  “Because,” young Patrick said disingenuously, “I am engaged in opposition to the clergy, and your appearance there might strike me with such awe as to prevent me from doing justice to my clients.” Convinced that his nephew faced humiliation, the old parson climbed back into his carriage and rode home.1

  Inside, the call to order brought presiding justice John Henry to the center of the long bench, followed by six other justices—all of them relatives of the Henry family by blood or marriage. Although twenty Anglican parsons had come to support the Reverend Maury, farmers made up the rest of the packed courtroom. After the clerk called the case, Justice Henry ordered the sheriff to summon a jury. Of the twelve called, at least four, including one of Patrick Henry’s relatives, were Presbyterian dissenters. A fifth member of the jury was one of the parishioners whom Reverend Maury was suing. Maury objected, charging that the sheriff had gone “among the vulgar herd” and failed “to summon gentlemen.” He complained that he knew one juror was “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.”2

  Henry shot to his feet, demanding to know whether Maury was accusing the prospective jurors of dishonesty. Taken aback by Henry’s aggressive challenge, Maury remained silent, and Henry turned to his father, proclaiming the jurors to be honest men and, therefore, “unexceptionable.” Justice Henry agreed and the jurors took their oaths and their seats in the jury box to await the plaintiff’s argument.

  Maury’s lawyer had a compelling case: The parish had paid him a mere £144 at a time when market prices of tobacco, according to the testimony of two tobacco dealers, would have yielded three times that amount had he received the usual 16,000 pounds of tobacco and sold it. With the Twopenny Act null and void and there being no excuse for underpayment, Maury’s lawyer demanded that the jury award his client the difference between £144 (about $8,800) and £432 (about $26,000) or £288 (about $17,500 today), plus legal fees and court costs.

  The assembled parsons nodded their collective heads in agreement and turned to each other with self-satisfied smiles. Farmers among the spectators shuffled their feet uncomfortably and moaned softly over the huge losses they and their friends faced. As Maury’s lawyer took his seat, Patrick Henry stepped onto center stage.

  “No one had ever heard him speak, and curiosity was on tiptoe,” according to William Wirt, a future U.S. attorney general. “He rose very awkwardly.”3

  In contrast to the dignified robes of the justices and men of the cloth, his coarse country clothes, though neat, gave him the appearance of a penitent rather than an attorney. Not a soul in the courtroom believed that his clients did not owe Parson Maury the diff
erence between the amount they had paid him and the market value of 16,000 pounds of tobacco in 1758. Seconds passed—it seemed like minutes—as silence gripped the courtroom. Finally, Henry tilted his head upward, eyes fixed at the ceiling, lips pursed, and . . .

  ... still nothing. Not a word.

  The spectators shifted uneasily in their seats, wondering with his father whether he was too young for the task ahead. Young Henry, however, had practiced long hours in the silence of the woods rehearsing for this moment—rehearsing rhetoric, trying out different acting techniques, reading plays aloud, memorizing lines with universal meanings that might apply in court. So he was ready when he stepped into court on December 1, 1763, and he opened his performance with a classic dramatic pause that gripped the courtroom with suspense.

  When he finally spoke, he was nothing short of brilliant, modestly lowering his head at appropriate times, lifting his eyes to heaven in supplication at the right moment, roaring in rage, mewling in sorrow or pity, all but whispering one moment and thundering the next. In contrast to the pseudo-English inflections of most lawyers, he spoke the language of his jurors, with a mountain drawl. His days in the tavern across the road had taught him how to win their minds and hearts. Six feet tall, lean, cheek-bones protruding from his gaunt face, he marched back and forth, using every element of the stage. Instead of a defense attorney, he turned into a prosecutor, charging Maury and the Anglican clergy with un-Christian acts of extracting the last pennies from poverty-stricken farmers and forcing their wives and babies from their homes.

  “We have heard a great deal about the benevolence and holy zeal of our reverend clergy, but how is this manifested?” he demanded to know.

  Do they manifest their zeal in the cause of religion and humanity by practicing the mild and benevolent precepts of the Gospel of Jesus? Do they feed the hungry and clothe the naked? Oh, no, gentlemen! Instead of feeding the hungry and clothing the naked, these rapacious harpies would, were their powers equal to their will, snatch from the hearth of their honest parishioner his last hoe-cake [cornbread], from the widow and her orphaned children their last milch cow! the last bed, nay, the last blanket from the lying-in woman!4

  The failed storekeeper and sometime tavern-keeper had found his voice and vocation.

  “A wondrous change came over him,” according to his grandson. “His attitude became erect and lofty, his face lighted up with genius, and his eyes seemed to flash fire; his gestures became graceful and impressive, his voice and his emphasis peculiarly charming. His appeals to the passions were overpowering. Those who heard him said he made their blood run cold and their hair to rise on end.”5

  Another witness said that spectators looked at each other “in disbelief” when he began his presentation. Then, “attracted by some strong gesture, struck by some majestic attitude, fascinated by the spell of his eye, the charm of his emphasis . . . they could look away no more. In less than twenty minutes, they might be seen in every part of the house . . . 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.”6

  In the midst of his dramatic performance, Henry also presented constitutional arguments. He argued that the British government represented a compact between the king and his people, by which the former provided protection in exchange for obedience and support. Either party’s refusal to fulfill its obligation, Henry declared, automatically released the other party from its obligations. Henry called the Twopenny Act necessary for the economic survival of the people. By annulling the act, the king had failed to fulfill his obligation to protect the people—indeed, “he had degenerated into a tyrant and forfeited all right to his subjects’ obedience to his order of annulment.”7

  “Treason!” cried Maury’s attorney.

  “Treason!” cried clergymen in the audience.

  “The gentleman has spoken treason!” Maury’s lawyer shouted as he stood to address the court. “I am astonished that your worships can hear it without emotion or any mark of dissatisfaction.”8

  But Henry’s oration had transfixed the justices as much as other spectators, and they remained silent as Henry ignored the interruption and continued—this time shifting his attack from the crown to the clergy. In refusing to abide by the Twopenny Act, the established church had abdicated one of its primary responsibilities to enforce obedience to the laws. “When clergy cease to answer these ends, the community have no further need of their ministry, and may justly strip them of their appointments,” he declared. Instead of damages, he cried out, Mr. Maury deserved to be punished with signal severity.

  With each phrase, Henry stripped away the veneer of reverence for the clergy that had suppressed the anger of country folk toward the church for generations. Citing “the natural rights” of Virginia freemen to keep the benefits of their labor, he so fired up farmer hatred of the Anglican Church that the clergymen who had come to support Reverend Maury “fled from the house in precipitation and terror.” A long, satisfying silence followed, after which Patrick Henry intoned a soft-spoken warning to the jury that the court had already ruled for Reverend Maury in the clergyman’s first trial—that he was indeed entitled to compensation, but “excepting they were disposed to rivet the chains of bondage on their own necks, he hoped they would not let slip the opportunity . . . 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. ...” Henry told the jury that the law required them to award Maury damages, but it had no obligation to award him more than a farthing.

  Silence followed as the jury trooped out. After less than five minutes of deliberation, its members returned and awarded Reverend Maury one penny.

  In the explosion of whoops, yells, and cheers that followed, Maury’s lawyer shouted for a mistrial, but the justices dismissed the motion unanimously—setting off an even louder explosion of cheers as spectators hoisted Henry on their shoulders and carried him out of the courthouse in triumph.

  Chapter 3

  The Flame Is Spread

  Patrick Henry was not unaware of his astonishing—almost frightening—gift to move men’s minds, and, evidently guilt-stricken by the wounds he had inflicted on Reverend Maury, he sought out the injured priest to atone for his conduct in court.

  “He apologized to me for what he had said,” Maury recounted bitterly in a letter to an English friend, “alleging that his sole view in engaging in the cause, and in saying what he had was to render himself popular.”

  You see, then . . . the ready road to popularity here is to trample under foot the interests of religion, the rights of the Church, and the prerogative of the Crown. If this be not pleading for the ‘assumption of a power to bind the King’s hands,’ if it not be asserting ‘such supremacy in provincial legislation’ as is inconsistent with the dignity of the Church of England, and manifestly tends to draw the people of these plantations from their allegiance to the King, tell me, my dear sir, what is so, if you can . . . Patrick should have been guilty of a crime . . . he exceeded the most seditious and inflammatory harangues of the tribunes of old Rome.1

  Some Anglican clergymen pressed the royal governor to prosecute Henry for treason, but the governor refused to risk his popularity with planters by involving himself in controversy that had no clear-cut legal resolution.

  Except for Maury and the Anglican clergy, Patrick Henry’s victory in the Parsons’ Cause added to the joys of the 1763 Christmas season in Hanover County, which was still celebrating Britain’s victory in the Seven Years’ War. Earlier in the year, the Treaty of Paris had forced France to cede most of its territory on the North American mainland east of the Mississippi to Britain and opened the way for Virginians to settle western lands between the Appalachian Mountains and the Mississippi River, as far north as the Great Lakes. Many Virginians argued that Virginia went beyond the Mississippi to the Pacific Ocean (see M
ap 1, page 8).

  Although some parsons continued their efforts to collect what they deemed was their due while the Twopenny Act was in effect, Henry’s victory set a precedent that other Virginia courts refused to overturn. Henry’s triumph propelled his name across the colonies and over the ocean to London. Hailed as the most eloquent lawyer in America, he became the champion of small farmers, adding 164 new clients and handling 555 cases in the year following the Parsons’ Cause. Each court appearance saw him hone his rhetorical weapons and slice his opponents’ arguments with increasingly deadly precision. He used every rhetorical device he could find or invent. On clear days, he embraced the sunshine and lifted jurors’ hearts; on grey days he pointed to the clouds and rain to provoke their tears; and on the darkest days, he saw omens of destruction in the heavens that left jurors cowering in fear as he cited each thunderclap or lightning bolt as nothing less than “the wrath of God.”

  “Whenever he rose to speak,” said the losing attorney in the Parsons’ Cause, “although it might be on so trifling a subject as a summons and petition for twenty shillings, I was obliged to lay down my pen and could not write another word until the speech was finished.”2

  After the 1764 elections, Henry’s friend and neighbor Nathaniel West Dandridge contested his defeat in a close contest for the House of Burgesses and retained Henry as counsel before the Committee on Privileges and Elections at the colonial assembly, in the capitol at Williamsburg. As Henry entered the stately House of Burgesses and peered into the assem-bly hall where committee members awaited, he fixed his eyes on one of the seats and determined to make it his own.