FOOTNOTES:

[398] Leake, _Life of Gen. John Lamb_, 307-308.

[399] Madison, _Letters_, etc. i. 402.

[400] _Works of Hamilton_, i. 463.

[401] _Writings of Washington_, ix. 392.

[402] Elliot, _Debates_, ii. 414.

[403] Madison, _Letters_, etc. i. 418.

[404] _Writings of Washington_, ix. 433.

[405] Bancroft, _Hist. Const._ ii. 483.

[406] _Corr. Rev._ iv. 240-241.

[407] _Ibid._ iv. 241.

[408] _Jour. Va. House Del._ 42-43.

[409] _Jour. Va. House Del._ 32.

[410] Madison, _Letters_, etc., i. 443-444.

[411] For contemporary allusions to this first example of gerrymandering, see _Writings of Washington_, ix. 446-447; _Writings of Jefferson_, ii. 574; Rives, _Life of Madison_, ii. 653-655; Bancroft, _Hist. Const._ ii. 485.

[412] Bancroft, _Hist. Const._ ii. 488-489.

[413] Gales, _Debates_, i. 258-261.

[414] Marshall, _Life of Washington_, v. 209-210; Story, _Const._ i.

211.

[415] Howison, _Hist. Va._ ii. 333.

CHAPTER XX

LAST LABORS AT THE BAR

The incidents embraced within the last three chapters cover the period from 1786 to 1791, and have been thus narrated by themselves for the purpose of exhibiting as distinctly as possible, and in unbroken sequence, Patrick Henry's relations to each succeeding phase of that immense national movement which produced the American Const.i.tution, with its first ten amendments.

During those same fervid years, however, in which he was devoting, as it might seem, every power of body and mind to his great labors as a party leader, and as a critic and moulder of the new Const.i.tution, he had resumed, and he was st.u.r.dily carrying forward, most exacting labors in the practice of the law.

Late in the year 1786, as will be remembered, being then poor and in debt, he declined another election to the governorship, and set himself to the task of repairing his private fortunes, so sadly fallen to decay under the n.o.ble neglect imposed by his long service of the public. One of his kinsmen has left on record a pleasant anecdote to the effect that the orator happened to mention at that time to a friend how anxious he was under the great burden of his debts. "Go back to the bar," said his friend; "your tongue will soon pay your debts. If you will promise to go, I will give you a retaining fee on the spot."[416] This course, in fact, he had already determined to take; and thus at the age of fifty, at no time robust in health, and at that time grown prematurely old under the storm and stress of all those unquiet years, he again buckled on his professional armor, rusty from long disuse, and pluckily began his life over again, in the hope of making some provision for his own declining days, as well as for the honor and welfare of his great brood of children and grandchildren. To this task, accordingly, he then bent himself, with a grim wilfulness that would not yield either to bodily weakness, or to the attractions or the distractions of politics. It is delightful to be permitted to add, that his energy was abundantly rewarded; and that in exactly eight years thereafter, namely in 1794, he was able to retire, in comfort and wealth, from all public and professional employments of every sort.

Of course the mere announcement, in 1786, that Patrick Henry was then ready once more to receive clients, was enough to excite the attention of all persons in Virginia who might have important interests in litigation. His great renown throughout the country, his high personal character, his overwhelming gifts in argument, his incomparable gifts in persuasion, were such as to ensure an almost dominant advantage to any cause which he should espouse before any tribunal. Confining himself, therefore, to his function as an advocate, and taking only such cases as were worth his attention, he was immediately called to appear in the courts in all parts of the State.

It is not necessary for us to try to follow this veteran and brilliant advocate in his triumphal progress from one court-house to another, or to give the detail of the innumerable causes in which he was engaged during these last eight years of his practice at the bar. Of all the causes, however, in which he ever took part as a lawyer, in any period of his career, probably the most difficult and important, in a legal aspect, was the one commonly referred to as that of the British debts, argued by him in the Circuit Court of the United States at Richmond, first in 1791, and again, in the same place, in 1793.[417]

A glance at the origin of this famous cause will help us the better to understand the significance of his relation to it. By the treaty with Great Britain in 1783, British subjects were empowered "to recover debts previously contracted to them by our citizens, notwithstanding a payment of the debt into a state treasury had been made during the war, under the authority of a state law of sequestration." According to this provision a British subject, one William Jones, brought an action of debt in the federal court at Richmond, against a citizen of Virginia, Thomas Walker, on a bond dated May, 1772. The real question was "whether payment of a debt due before the war of the Revolution, from a citizen of Virginia to British subjects, into the loan office of Virginia, pursuant to a law of that State, discharged the debtor."

The case, as will readily be seen, involved many subtle and difficult points of law, munic.i.p.al, national, and international; and the defence was contained in the following five pleas: (1.) That of payment, generally; (2.) That of the Virginia act of sequestration, October 20, 1777; (3.) That of the Virginia act of forfeiture, May 3, 1779; (4.) That of British violations of the treaty of 1783; (5.) That of the necessary annulment of the debt, in consequence of the dissolution of the co-allegiance of the two parties, on the declaration of independence.[418]

Some idea of the importance attached to the case may be inferred from the a.s.sertion of Wirt, that "the whole power of the bar of Virginia was embarked" in it; and that the "learning, argument, and eloquence"

exhibited in the discussion were such "as to have placed that bar, in the estimation of the federal judges, ... above all others in the United States."[419] a.s.sociated with Patrick Henry, for the defendant, were John Marshall, Alexander Campbell, and James Innes.

For several weeks before the trial of this cause in 1791, Patrick Henry secluded himself from all other engagements, and settled down to intense study in the retirement of his home in the country. A grandson of the orator, Patrick Henry Fontaine, who was there as a student of the law, relates that he himself was sent off on a journey of sixty miles to procure a copy of Vattel's Law of Nations. From this and other works of international law, the old lawyer "made many quotations; and with the whole syllabus of notes and heads of arguments, he filled a ma.n.u.script volume more than an inch thick, and closely written; a book ... bound with leather, and convenient for carrying in his pocket. He had in his yard ... an office, built at some distance from his dwelling, and an avenue of fine black locusts shaded a walk in front of it.... He usually walked and meditated, when the weather permitted, in this shaded avenue.... For several days in succession, before his departure to Richmond to attend the court," the orator was seen "walking frequently in this avenue, with his note-book in his hand, which he often opened and read; and from his gestures, while promenading alone in the shade of the locusts," it was supposed that he was committing his speech to memory.[420] According to another account, so eager was his application to this labor that, in one stage of it, "he shut himself up in his office for three days, during which he did not see his family; his food was handed by a servant through the office door."[421] Of all this preparation, not unworthy to be called Demosthenic, the result was, if we may accept the opinion of one eminent lawyer, that Patrick Henry "came forth, on this occasion, a perfect master of every law, national and munic.i.p.al, which touched the subject of investigation in the most distant point."[422]

It was on the 14th of November, 1791, that the cause came on to be argued in the court-house at Richmond, before Judges Johnson and Blair of the Supreme Court, and Judge Griffin of that district. The case of the plaintiff was opened by Mr. Counsellor Baker, whose argument lasted till the evening of that day. Patrick Henry was to begin his argument in reply the next morning.

"The legislature was then in session; but when eleven o'clock, the hour for the meeting of the court, arrived, the speaker found himself without a house to do business. All his authority and that of his sergeant at arms were unavailing to keep the members in their seats: every consideration of public duty yielded to the anxiety which they felt, in common with the rest of their fellow citizens, to hear this great man on this truly great and extensively interesting question. Accordingly, when the court was ready to proceed to business, the court-room of the capitol, large as it is, was insufficient to contain the vast concourse that was pressing to enter it. The portico, and the area in which the statue of Washington stands, were filled with a disappointed crowd, who nevertheless maintained their stand without. In the court-room itself, the judges, through condescension to the public anxiety, relaxed the rigor of respect which they were in the habit of exacting, and permitted the vacant seats of the bench, and even the windows behind it, to be occupied by the impatient mult.i.tude. The noise and tumult occasioned by seeking a more favorable station was at length hushed, and the profound silence which reigned within the room gave notice to those without that the orator had risen, or was on the point of rising. Every eye in front of the bar was riveted upon him with the most eager attention; and so still and deep was the silence that every one might hear the throbbing of his own heart. Mr. Henry, however, appeared wholly unconscious that all this preparation was on his account, and rose with as much simplicity and composure as if the occasion had been one of ordinary occurrence.... It may give the reader some idea of the amplitude of the argument, when he is told that Mr. Henry was engaged three days successively in its delivery; and some faint conception of the enchantment which he threw over it, when he learns that although it turned entirely on questions of law, yet the audience, mixed as it was, seemed so far from being wearied, that they followed him throughout with increased enjoyment. The room continued full to the last; and such was 'the listening silence' with which he was heard, that not a syllable that he uttered is believed to have been lost. When he finally sat down, the concourse rose, with a general murmur of admiration; the scene resembled the breaking up and dispersion of a great theatrical a.s.sembly, which had been enjoying, for the first time, the exhibition of some new and splendid drama; the speaker of the House of Delegates was at length able to command a quorum for business; and every quarter of the city, and at length every part of the State, was filled with the echoes of Mr. Henry's eloquent speech."[423]

In the spring of 1793 this cause was argued a second time, before the same district judge, and, in addition, before Mr. Chief Justice Jay, and Mr. Justice Iredell of the Supreme Court. On this occasion, apparently, there was the same eagerness to hear Patrick Henry as before,--an eagerness which was shared in by the two visiting judges, as is indicated in part by a letter from Judge Iredell, who, on the 27th of May, thus wrote to his wife: "We began on the great British causes the second day of the court, and are now in the midst of them.

The great Patrick Henry is to speak to-day."[424] Among the throng of people who then poured into the court-room was John Randolph of Roanoke, then a stripling of twenty years, who, having got a position very close to the judges, was made aware of their conversation with one another as the case proceeded. He describes the orator as not expecting to speak at that time; "as old, very much wrapped up, and resting his head on the bar." Meanwhile the chief justice, who, in earlier days, had often heard Henry in the Continental Congress, told Iredell that that feeble old gentleman in m.u.f.flers, with his head bowed wearily down upon the bar, was "the greatest of orators."

"Iredell doubted it; and, becoming impatient to hear him, they requested him to proceed with his argument, before he had intended to speak.... As he arose, he began to complain that it was a hardship, too great, to put the laboring oar into the hands of a decrepit old man, trembling, with one foot in the grave, weak in his best days, and far inferior to the able a.s.sociate by him." Randolph then gives an outline of his progress through the earlier and somewhat tentative stages of his speech, comparing his movement to the exercise "of a first-rate, four-mile race-horse, sometimes displaying his whole power and speed for a few leaps, and then taking up again." "At last,"

according to Randolph, the orator "got up to full speed; and took a rapid view of what England had done, when she had been successful in arms; and what would have been our fate, had we been unsuccessful. The color began to come and go in the face of the chief justice; while Iredell sat with his mouth and eyes stretched open, in perfect wonder.

Finally, Henry arrived at his utmost height and grandeur. He raised his hands in one of his grand and solemn pauses.... There was a tumultuous burst of applause; and Judge Iredell exclaimed, 'Gracious G.o.d! he is an orator indeed!'"[425] It is said, also, by another witness, that Henry happened that day to wear on his finger a diamond ring; and that in the midst of the supreme splendor of his eloquence, a distinguished English visitor who had been given a seat on the bench, said with significant emphasis to one of the judges, "The diamond is blazing!"[426]

As examples of forensic eloquence, on a great subject, before a great and a fit a.s.semblage, his several speeches in the case of the British debts were, according to all the testimony, of the highest order of merit. What they were as examples of legal learning and of legal argumentation, may be left for every lawyer to judge for himself, by reading, if he so pleases, the copious extracts which have been preserved from the stenographic reports of these speeches, as taken by Robertson. Even from that point of view, they appear not to have suffered by comparison with the efforts made, in that cause, on the same side, by John Marshall himself. No inconsiderable portion of his auditors were members of the bar; and those keen and competent critics are said to have acknowledged themselves as impressed "not less by the matter than the manner" of his speeches.[427] Moreover, though not expressly mentioned, Patrick Henry's argument is pointedly referred to in the high compliment p.r.o.nounced by Judge Iredell, when giving his opinion in this case:--

"The cause has been spoken to, at the bar, with a degree of ability equal to any occasion.... I shall, as long as I live, remember with pleasure and respect the arguments which I have heard in this case. They have discovered an ingenuity, a depth of investigation, and a power of reasoning fully equal to anything I have ever witnessed; and some of them have been adorned with a splendor of eloquence surpa.s.sing what I have ever felt before. Fatigue has given way under its influence, and the heart has been warmed, while the understanding has been instructed."[428]

It will be readily understood, however, that while Patrick Henry's practice included important causes turning, like the one just described, on propositions of law, and argued by him before the highest tribunals, the larger part of the practice to be had in Virginia at that time must have been in actions tried before juries, in which his success was chiefly due to his amazing endowments of sympathy, imagination, tact, and eloquence. The testimony of contemporary witnesses respecting his power in this direction is most abundant, and also most interesting; and, for obvious reasons, such portions of it as are now to be reproduced should be given in the very language of the persons who thus heard him, criticised him, and made deliberate report concerning him.

First of all, in the way of preliminary a.n.a.lysis of Henry's genius and methods as an advocate before juries, may be cited a few sentences of Wirt, who, indeed, never heard him, but who, being himself a very gifted and a very ambitious advocate, eagerly collected and keenly scanned the accounts of many who had heard him:--

"He adapted himself, without effort, to the character of the cause; seized with the quickness of intuition its defensible point, and never permitted the jury to lose sight of it. Sir Joshua Reynolds has said of t.i.tian, that, by a few strokes of his pencil, he knew how to mark the image and character of whatever object he attempted; and produced by this means a truer representation than any of his predecessors, who finished every hair. In like manner Mr. Henry, by a few master-strokes upon the evidence, could in general stamp upon the cause whatever image or character he pleased; and convert it into tragedy or comedy, at his sovereign will, and with a power which no efforts of his adversary could counteract. He never wearied the jury by a dry and minute a.n.a.lysis of the evidence; he did not expend his strength in finishing the hairs; he produced all his high effect by those rare master-touches, and by the resistless skill with which, in a very few words, he could mould and color the prominent facts of a cause to his purpose. He had wonderful address, too, in leading off the minds of his hearers from the contemplation of unfavorable points, if at any time they were too stubborn to yield to his power of transformation.... It required a mind of uncommon vigilance, and most intractable temper, to resist this charm with which he decoyed away his hearers; it demanded a rapidity of penetration, which is rarely, if ever, to be found in the jury-box, to detect the intellectual juggle by which he spread his nets around them; it called for a stubbornness and obduracy of soul which does not exist, to sit unmoved under the pictures of horror or of pity which started from his canvas. They might resolve, if they pleased, to decide the cause against him, and to disregard everything which he could urge in the defence of his client. But it was all in vain. Some feint in an unexpected direction threw them off their guard, and they were gone; some happy phrase, burning from the soul; some image fresh from nature's mint, and bearing her own beautiful and genuine impress, struck them with delightful surprise, and melted them into conciliation; and conciliation towards Mr. Henry was victory inevitable.

In short, he understood the human character so perfectly; knew so well all its strength and all its weaknesses, together with every path and by-way which winds around the citadel of the best fortified heart and mind, that he never failed to take them, either by stratagem or storm."[429]

Still further, in the way of critical a.n.a.lysis, should be cited the opinion of a distinguished student and master of eloquence, the Rev.

Archibald Alexander of Princeton, who, having more than once heard Patrick Henry, wrote out, with a scholar's precision, the results of his own keen study into the great advocate's success in subduing men, and especially jurymen:--

"The power of Henry's eloquence was due, first, to the greatness of his emotion and pa.s.sion, accompanied with a versatility which enabled him to a.s.sume at once any emotion or pa.s.sion which was suited to his ends. Not less indispensable, secondly, was a matchless perfection of the organs of expression, including the entire apparatus of voice, intonation, pause, gesture, att.i.tude, and indescribable play of countenance. In no instance did he ever indulge in an expression that was not instantly recognized as nature itself; yet some of his penetrating and subduing tones were absolutely peculiar, and as inimitable as they were indescribable. These were felt by every hearer, in all their force. His mightiest feelings were sometimes indicated and communicated by a long pause, aided by an eloquent aspect, and some significant use of his finger. The sympathy between mind and mind is inexplicable. Where the channels of communication are open, the faculty of revealing inward pa.s.sion great, and the expression of it sudden and visible, the effects are extraordinary. Let these shocks of influence be repeated again and again, and all other opinions and ideas are for the moment absorbed or excluded; the whole mind is brought into unison with that of the speaker; and the spell-bound listener, till the cause ceases, is under an entire fascination. Then perhaps the charm ceases, upon reflection, and the infatuated hearer resumes his ordinary state.

"Patrick Henry, of course, owed much to his singular insight into the feelings of the common mind. In great cases he scanned his jury, and formed his mental estimate; on this basis he founded his appeals to their predilections and character. It is what other advocates do, in a lesser degree. When he knew that there were conscientious or religious men among the jury, he would most solemnly address himself to their sense of right, and would adroitly bring in scriptural citations. If this handle was not offered, he would lay bare the sensibility of patriotism. Thus it was, when he succeeded in rescuing the man who had deliberately shot down a neighbor; who moreover lay under the odious suspicion of being a Tory, and who was proved to have refused supplies to a brigade of the American army."[430]

Pa.s.sing now from these general descriptions to particular instances, we may properly request Dr. Alexander to remain somewhat longer in the witness-stand, and to give us, in detail, some of his own recollections of Patrick Henry. His testimony, accordingly, is in these words:--

"From my earliest childhood I had been accustomed to hear of the eloquence of Patrick Henry. On this subject there existed but one opinion in the country. The power of his eloquence was felt equally by the learned and the unlearned.

No man who ever heard him speak, on any important occasion, could fail to admit his uncommon power over the minds of his hearers.... Being then a young man, just entering on a profession in which good speaking was very important, it was natural for me to observe the oratory of celebrated men. I was anxious to ascertain the true secret of their power; or what it was which enabled them to sway the minds of hearers, almost at their will.