"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 pa.s.s weeks in hunting deer, of which he was pa.s.sionately 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 a.s.sistant 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 pa.s.sage, 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 circ.u.mstantial records almost as completely annihilate the trustworthiness of all the rest of the pa.s.sage. 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 pa.s.sed 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 circ.u.mstances 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 s.p.a.ce 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 embarra.s.sment 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 c.o.ke 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 ma.n.u.script, 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 ma.n.u.script.

[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.

CHAPTER IV

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 circ.u.mstances there were enlisted in its favor precisely those pa.s.sions of the mult.i.tude 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 pa.s.sions, 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 inst.i.tution 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 quant.i.ty 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 25 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 quant.i.ty 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, pa.s.sed an act, directing that every parish minister should "receive an annual salary of 16,000 pounds of tobacco, ... to be levied, a.s.sessed, 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 quant.i.ty 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 pa.s.sed 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 const.i.tutional 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 circ.u.mstances, 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, pa.s.sed 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 400 sterling, it compelled him to take, in the paper money of the colony, the sum of about 133. 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 20 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 quant.i.ty," 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 n.o.ble 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 cla.s.s,--and in Virginia, unfortunately, on the subject of salaries due to the clergy, nearly all persons above sixteen years of age belonged to that cla.s.s.[45]

At the time when this act was before the legislature for consideration, the clergy applied for a hearing, but were refused.

Upon its pa.s.sage 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 pa.s.sed; 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 a.s.sured 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,--