A Firebrand Scorches Colonial Virginia

by George F. Smith

Our founders often spoke in political extremes.  They outraged the privileged and became the voice for the people.  Their well-bred opponents cried “treason!” at their words, sending their popularity soaring.  They even had the audacity to call themselves “patriots.”

The man of “Give me liberty or give me death!” fame was once lost among the obscure.  Like Thomas Paine and Samuel Adams, Patrick Henry had failed at just about everything early in life, including farming and running a store. But in 1760 he was hunting down his younger friend, Thomas Jefferson, on the William and Mary campus to give him some news.  Henry had been reading Coke’s law book in his spare hours while helping his father-in-law run a tavern.  After six weeks of browsing the dense tome, Henry was on campus to ask legal examiners to license him as a lawyer.

In Virginia, if you wanted to practice law you studied in London at the Inns of Court.  If that was beyond your means, you apprenticed with an established lawyer for many months.  Henry lacked the temperament to do either.  Jefferson couldn’t decide if Henry was a fool or a genius.

Jefferson knew the four examiners Henry had picked.  Two of them were John and Peyton Randolph, each of whom had studied law in England. Robert Carter Nicholas, his third examiner, was related to a land baron in Virginia who owned three hundred thousand acres.  Most distinguished of all was his fourth examiner, George Wythe, with whom Jefferson hoped to serve as an apprentice someday.

Henry interviewed the four men separately, in their chambers.  He needed two of them to sign his license before he could practice law legally.  Physically, he had certain drawbacks and advantages.  Though tall, he tended to stoop and his forehead beetled.  His clothes were coarse and hung on him carelessly.  But his eyes were torches of intelligence, and his mind rarely wandered.  His face always seemed ready to break into a smile.

None of this mattered to George Wythe, who dismissed him after a few questions.  After much pleading and solemn promises to study law seriously, Henry managed to get Nicholas to sign his license.  The Randolph brothers were put off by his appearance, but found his grasp of natural law and history exceptional.  Each signed his license with grave reservations, but concluded that however raw, Henry was a young man of genius.

For the next three years Patrick Henry practiced law in his home county of Hanover, twenty miles north of Richmond, representing the poor.  He knew how it felt to be broke; he had married in that condition at 18.

In late fall of 1763 a deputy sheriff named Thomas Johnson came to see him.  An Anglican minister, James Maury, was suing Johnson for damages resulting from the Two Penny Act, and it seemed all but certain Johnson would be ordered to pay a huge fine.  For fifteen shillings, would Henry agree to represent him?

The Anglican Church enjoyed a legal monopoly in Virginia, as it did in England.  Ministers of other faiths could get a dispensation in Williamsburg and thereby be allowed to preach, but Baptists, Methodists, and Quakers refused on principle to cooperate and were often persecuted.  In 1748 the Virginia House of Burgesses set a clergyman’s annual salary at 16,000 pounds of tobacco.  If local officials could not meet this amount, parsons could sue for damages.

Tobacco crops did poorly in 1755, driving the price of tobacco up. The planters balked at paying the clergy their tobacco and went to the Burgesses for relief.  The legislators gave them the Two Penny Act, which allowed planters to pay the clergy in paper money at the rate of two pence per pound of tobacco.  But this meant the clergy would get only a third of what they were due, and some of them sued and won.

When crops failed again three years later, Reverend Maury filed a similar suit.  The court finally ruled in November 1763 that since the king had never repealed the law of 1748, town officials – the vestry – had acted illegally in paying the clergy a reduced cash equivalent. The forthcoming hearing set for December 1 was expected to be a mere formality for assessing the damages.

Henry agreed to take Johnson’s case.

Standing by their fellow clergyman, twenty parsons showed up at the small brick courthouse on the day of the trial.  Wealthy and not-so-wealthy planters came in support of Johnson and their own interests.  The presiding judge was Colonel John Henry, Patrick’s father.  As one of the few men in Hanover who had attended college, Colonel Henry had accepted the judgeship by default.

Judge Henry sent the sheriff to round up twelve gentlemen to serve as jurors.  But the gentlemen he found refused to serve, so the sheriff came back with less stellar humans whom Maury described later as members of “the vulgar herd.” Patrick Henry recognized some of the jurors, including three Anglican dissenters and a cousin, and declared they all looked like honest men and got them immediately sworn in.

Maury’s attorney was a 300-pound court charmer named Peter Lyons, who very confidently summed up the verdict from the previous month and referred to Patrick condescendingly as “Young Pat.”  If it weren’t for the discredited Two Penny Act, Lyons said, Parson Maury would have received £450 instead of £144 for his 1758 salary.  He thus asked the jury to award Maury £300 in back pay, then spoke at length in reverent praises to the Anglican clergy in attendance.

When Henry rose in rebuttal, the words tried to rush out of his mouth all at once.  His friends who were present lowered their eyes in mortification.  One onlooker said Judge Henry looked as if he tried to slide under the bench.  The parsons glanced at each other and exchanged smiles.

Then Henry found himself.  His voice no longer faltered, and his movements became graceful.  When he turned to the jury, they saw lightning in his eyes.

He brought up precedents that irked Maury because they seemed irrelevant and intended to confuse the jurors.  Then Henry started speaking the unspeakable.  He referred to the Two Penny Act as just, and said when the king failed to approve it he gave proof of his unfitness to rule.  This brought Lyons out of his chair with the first accusation of treason.  Others in the room started grumbling, “Treason!”  “Treason!”

Henry was allowed to go on.  He turned on the parsons and accused them of greed for wanting more than their brothers outside the church.

“We have heard a great deal,” he said, “about the benevolence and holy zeal of our reverend clergy.  But how is this manifested? . . . Do they feed the hungry and clothe the naked?”  To which he resolutely answered, “No!”

“These rapacious harpies would, were their power equal to their will, snatch from the hearth of their honest parishioner his last hoe-cake, from the widow and her orphan children her last milch cow!  The last bed—nay, the last blanket—from the [woman in labor]!”

The parsons were so enraged they muttered among themselves and filed out of the courtroom.  Henry carried on for another hour and concluded by recommending Maury get only a farthing.  After deliberating, the jury rejected Henry’s suggestion on the grounds that it would be insulting to Parson Maury.  Instead, they awarded him four times as much—one penny.

In the uproar that followed, spectators hoisted Henry on their shoulders and carried him outside.  He found Maury and apologized for any offense he may have caused.  According to Maury, Henry said the only reason he took the case was to make himself popular.

His victory was overwhelming.  The other parsons decided to forego litigation for back pay, and Henry signed 164 new clients within a year.

When the Stamp Act became imminent in 1765, Henry decided to run for a seat in the House of Burgesses, bypassing the usual path of serving on a county court first.  Since the available seat was in Louisa County, he bought land there to make himself eligible to run.  Henry got elected with the help of twenty-eight gallons of rum set up at the polls, a popular concession to voters who demanded drinks in exchange for votes.

Once in the House, he stunned the Old Guard with his Virginia Resolves, which ultimately inspired the Stamp Act riots in Boston—the colonies’ first major resistance to Crown authority.

Fortunately for us, it was not to be their last.

For more information, please see:

Langguth, A. J., Patriots: The Men Who Started the American Revolution, Touchstone Books, NY, 1988

Rothbard, Murray N., Conceived in Liberty, Volume III: Advance to Revolution, 1760-1775, Mises Institute, Auburn, AL, 1999..