Thus Patrick Henry had been for nearly four years in the practice of the law, with a vigor and a success quite extraordinary, when, late in the year 1763, he became concerned in a case so charged with popular interest, and so well suited to the display of his own marvellous genius as an advocate, as to make both him and his case immediately celebrated.

The side upon which he was retained happened to be the wrong side,—wrong both in law and in equity; having only this element of strength in it, namely, that by a combination of circumstances there were enlisted in its favor precisely those passions of the multitude which are the most selfish, the most blinding, and at the same time the most energetic. It only needed an advocate skilful enough to play effectively upon these passions, and a storm would be raised before which mere considerations of law and of equity would be swept out of sight.

In order to understand the real issue presented by “the Parsons’ Cause,” and consequently the essential weakness of the side to the service of [Pg 37] which our young lawyer was now summoned, we shall need to turn about and take a brief tour into the earlier history of Virginia. In that colony, from the beginning, the Church of England was established by law, and was supported, like any other institution of the government, by revenues derived from taxation,—taxation levied in this case upon nearly all persons in the colony above the age of sixteen years. Moreover, those local subdivisions which, in the Northern colonies, were called towns, in Virginia were called parishes; and accordingly, in the latter, the usual local officers who manage the public business for each civil neighborhood were called, not selectmen or supervisors, as at the North, but vestrymen. Among the functions conferred by the law upon these local officers in Virginia was that of hiring the rector or minister, and of paying him his salary; and the same authority which gave to the vestry this power fixed likewise the precise amount of salary which they were to pay. Ever since the early days of the colony, this amount had been stated, not in money, which hardly existed there, but in tobacco, which was the staple of the colony. Sometimes the market value of tobacco would be very low,—so low that the portion paid to the minister would yield a sum quite insufficient for his support; and on such occasions, prior to 1692, the parishes had often kindly made up for such depreciation by voluntarily paying an extra quantity of tobacco.[33][Pg 38] 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 quantity of tobacco then to be paid them. On the other hand, from 1714 to 1720, the price of tobacco rose considerably above the average, and did something towards making up to the clergy the losses which they had recently incurred. Then, again, from 1720 to 1724, tobacco fell to the low price of the former period, and of course with the same results of unrelieved loss to the clergy.[34] Thus, however, in the process of time, there had become established, in the fiscal relations of each vestry to its minister, a rough but obvious system of fair play. When the price of tobacco was down, the parson was expected to suffer the loss; when the price of tobacco was up, he was allowed to enjoy the gain. Probably it did not then occur to any one that a majority of the good people of [Pg 39] Virginia could ever be brought to demand such a mutilation of justice as would be involved in depriving the parson of the occasional advantage of a very good market, and of making up for this by always leaving to him the undisturbed enjoyment of every occasional bad one. Yet it was just this mutilation of justice which, only a few years later, a majority of the good people of Virginia were actually brought to demand, and which, by the youthful genius of Patrick Henry, they were too well aided in effecting.

Returning now from our brief tour into a period of Virginian history just prior to that upon which we are at present engaged, we find ourselves arrived at the year 1748, in which year the legislature of Virginia, revising all previous regulations respecting the hiring and paying of the clergy, passed an act, directing that every parish minister should “receive an annual salary of 16,000 pounds of tobacco, … to be levied, assessed, collected, and paid” by the vestry. “And if the vestry of any parish” should “neglect or refuse to levy the tobacco due to the minister,” they should “be liable to the action of the party grieved … for all damages which he … shall sustain by such refusal or neglect.”[35] This act of the colonial legislature, having been duly approved by the king, became a law, and consequently was not liable to repeal or even to suspension except by the king’s approval. Thus, at the period now reached, there [Pg 40] was between every vestry and its minister a valid contract for the annual payment, by the former to the latter, of that particular quantity of tobacco,—the clergy to take their chances as to the market value of the product from year to year.

Thus matters ran on until 1755, when, by reason of a diminished crop of tobacco, the legislature passed an option law,[36] virtually suspending for the next ten months the Act of 1748, and requiring the clergy, at the option of the vestries, to receive their salaries for that year, not in tobacco, but in the depreciated paper currency of the colony, at the rate of two pence for each pound of tobacco due,—a price somewhat below the market value of the article for that year. Most clearly this act, which struck an arbitrary blow at the validity of all contracts in Virginia, was one which exceeded the constitutional authority of the legislature; since it suspended, without the royal approval, a law which had been regularly ratified by the king. However, the operation of this act was shrewdly limited to ten months,—a period just long enough to accomplish its object, but too short for the royal intervention against it to be of any direct avail. Under these circumstances, the clergy bore their losses for that year with some murmuring indeed, but without any formal protest.[37]

Just three years afterward, in 1758, the legislature, with even less excuse than before, passed an [Pg 41] 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 [Pg 42] any such public distress of any sort as might overrule the ordinary maxims of justice, and excuse, in the name of humanity, a merely technical violation of law. As a matter of fact, the only “dearth and scarcity” in Virginia that year was “confined to one or two counties on James River, and that entirely owing to their own fault;”[41] wherever there was any failure of the tobacco crop, it was due to the killing of the plants so early in the spring, that such land did not need to lie uncultivated, and in most cases was planted “in corn and pease, which always turned to good account;”[42] and although, for the whole colony, the crop of tobacco “was short in quantity,” yet “in cash value it proved to be the best crop that Virginia had ever had” since the settlement of the colony.[43] Finally, it was by no means the welfare of the poor that “was the object, or the effect, of the law;” but it was “the rich planters” who, first selling their tobacco at about fifty shillings the hundred, and then paying to the clergy and others their tobacco debts at the rate of sixteen shillings the hundred, were “the chief gainers” by the act.[44]

Such, then, in all its fresh and unadorned rascality, was the famous “option law,” or “two-penny act,” of 1758: an act firmly opposed, on its first appearance in the legislature, by a noble [Pg 43] minority of honorable men; an act clearly indicating among a portion of the people of Virginia a survival of the old robber instincts of our Norse ancestors; an act having there the sort of frantic popularity that all laws are likely to have which give a dishonest advantage to the debtor class,—and in Virginia, unfortunately, on the subject of salaries due to the clergy, nearly all persons above sixteen years of age belonged to that class.[45]

At the time when this act was before the legislature for consideration, the clergy applied for a hearing, but were refused. Upon its passage by the two houses, the clergy applied to the acting governor, hoping to obtain his disapproval of the act; but his reply was an unblushing avowal of [Pg 44] his determination to pursue any course, right or wrong, which would bring him popular favor. They then sent one of their own number to England, for the purpose of soliciting the royal disallowance of the act. After a full hearing of both sides, the privy council gave it as their opinion that the clergy of Virginia had their “certain remedy at law;” Lord Hardwicke, in particular, declaring that “there was no occasion to dispute about the authority by which the act was passed; for that no court in the judicature whatever could look upon it to be law, by reason of its manifest injustice alone.”[46] Accordingly, the royal disallowance was granted. Upon the arrival in Virginia of these tidings, several of the clergy began suits against their respective vestries, for the purpose of compelling them to pay the amounts then legally due upon their salaries for the year 1758.

Of these suits, the first to come to trial was that of the Rev. Thomas Warrington, in the County Court of Elizabeth City. In that case, “a jury of his own parishioners found for him considerable damages, allowing on their oaths that there was above twice as much justly due to him as the act had granted;”[47] but “the court hindered him from immediately coming at the damages, by judging the act to be law, in which it is thought they were influenced more by the fear of giving offense to their superiors, than by their own opinion of the [Pg 45] 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. [Pg 46]

Such was the situation, when these defendants, having been assured by their counsel that all further struggle would be hopeless, turned for help to the enterprising young lawyer who, in that very place, had been for the previous three and a half years pushing his way to notice in his profession. To him, accordingly, they brought their cause,—a desperate cause, truly,—a cause already lost and abandoned by veteran and eminent counsel. Undoubtedly, by the ethics of his profession, Patrick Henry was bound to accept the retainer that was thus tendered him; and, undoubtedly, by the organization of his own mind, having once accepted that retainer, he was likely to devote to the cause no tepid or half-hearted service.

The decision of the court, which has been referred to, was rendered at its November session. On the first day of the session in December, the order was executed for summoning a select jury “to examine whether the plaintiff had sustained any damages, and what.”[50] Obviously, in the determination of these two questions, much would depend on the personal composition of the jury; and it is apparent that this matter was diligently attended to by the sheriff. His plan seems to have been to secure a good, honest jury of twelve adult male persons, but without having among them a single one of those over-scrupulous and intractable people who, in Virginia, at that time, were still technically described as gentlemen. [Pg 47] 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:—

Having thus secured a jury that must have been reasonably satisfactory to the defendants, the hearing [Pg 48] began. Two gentlemen, being the largest purchasers of tobacco in the county, were then sworn as witnesses to prove the market price of the article in 1759. By their testimony it was established that the price was then more than three times as much as had been estimated in the payment of paper money actually made to the plaintiff in that year. Upon this state of facts, “the lawyers on both sides” proceeded to display “the force and weight of the evidence;” after which the case was given to the jury. “In less than five minutes,” they “brought in a verdict for the plaintiff,—one penny damages.”[52]

Just how the jury were induced, in the face of the previous judgment of that very court, to render this astounding verdict, has been described in two narratives: one by William Wirt, written about fifty years after the event; the other by the injured plaintiff himself, the Rev. James Maury, written exactly twelve days after the event. Few things touching the life of Patrick Henry can be more notable or more instructive than the contrast presented by these two narratives.

On reaching the scene of action, on the 1st of December, Patrick Henry “found,” says Wirt,—

“on the courtyard such a concourse as would have appalled any other man in his situation. They were not people of the county merely who were there, but visitors from all the counties to a considerable distance around. The decision upon the demurrer had produced a violent ferment [Pg 49] among the people, and equal exultation on the part of the clergy, who attended the court in a large body, either to look down opposition, or to enjoy the final triumph of this hard fought contest, which they now considered as perfectly secure.… Soon after the opening of the court the cause was called.… The array before Mr. Henry’s eyes was now most fearful. On the bench sat more than twenty clergymen, the most learned men in the colony.… The courthouse was crowded with an overwhelming multitude, and surrounded with an immense and anxious throng, who, not finding room to enter, were endeavoring to listen without in the deepest attention. But there was something still more awfully disconcerting than all this; for in the chair of the presiding magistrate sat no other person than his own father. Mr. Lyons opened the cause very briefly.… And now came on the first trial of Patrick Henry’s strength. No one had ever heard him speak,[53] and curiosity was on tiptoe. He rose very awkwardly, and faltered much in his exordium. The people hung their heads at so unpromising a commencement; the clergy were observed to exchange sly looks with each other; and his father is described as having almost sunk with confusion, from his seat. But these feelings were of short duration, and soon gave place to others of a very different character. For now were those wonderful faculties which he possessed, for the first time developed; and now was first witnessed that mysterious and almost supernatural transformation of appearance, which the fire of his own eloquence never failed to work in him. For as his mind rolled along, and began to [Pg 50] glow from its own action, all the exuviÆ of the clown seemed to shed themselves spontaneously. His attitude, by degrees, became erect and lofty. The spirit of his genius awakened all his features. His countenance shone with a nobleness and grandeur which it had never before exhibited. There was a lightning in his eyes which seemed to rive the spectator. His action became graceful, bold, and commanding; and in the tones of his voice, but more especially in his emphasis, there was a peculiar charm, a magic, of which any one who ever heard him will speak as soon as he is named, but of which no one can give any adequate description. They can only say that it struck upon the ear and upon the heart, in a manner which language cannot tell. Add to all these, his wonder-working fancy, and the peculiar phraseology in which he clothed its images: for he painted to the heart with a force that almost petrified it. In the language of those who heard him on this occasion, ‘he made their blood run cold, and their hair to rise on end.’

“It will not be difficult for any one who ever heard this most extraordinary man, to believe the whole account of this transaction which is given by his surviving hearers; and from their account, the court house of Hanover County must have exhibited, on this occasion, a scene as picturesque as has been ever witnessed in real life. They say that the people, whose countenance had fallen as he arose, had heard but a very few sentences before they began to look up; then to look at each other with surprise, as if doubting the evidence of their own senses; then, attracted by some strong gesture, struck by some majestic attitude, fascinated by the spell of his eye, the charm of his emphasis, and the [Pg 51] varied and commanding expression of his countenance, they could look away no more. In less than twenty minutes, they might be seen in every part of the house, on every bench, in every window, stooping forward from their stands, in death-like silence; their features fixed in amazement and awe; all their senses listening and riveted upon the speaker, as if to catch the least strain of some heavenly visitant. The mockery of the clergy was soon turned into alarm; their triumph into confusion and despair; and at one burst of his rapid and overwhelming invective, they fled from the house in precipitation and terror. As for the father, such was his surprise, such his amazement, such his rapture, that, forgetting where he was, and the character which he was filling, tears of ecstasy streamed down his cheeks, without the power or inclination to repress them.

“The jury seem to have been so completely bewildered, that they lost sight not only of the Act of 1748, but that of 1758 also; for, thoughtless even of the admitted right of the plaintiff, they had scarcely left the bar, when they returned with a verdict of one penny damages. A motion was made for a new trial; but the court, too, had now lost the equipoise of their judgment, and overruled the motion by an unanimous vote. The verdict and judgment overruling the motion were followed by redoubled acclamations, from within and without the house. The people, who had with difficulty kept their hands off their champion from the moment of closing his harangue, no sooner saw the fate of the cause finally sealed, than they seized him at the bar; and in spite of his own exertions, and the continued cry of order from the sheriffs and the court, they bore him out of the courthouse, and raising him on their shoulders, [Pg 52] carried him about the yard, in a kind of electioneering triumph.”[54]