History of the Colony and Ancient Dominion of Virginia Part 43

"_Reasons and Objections to Mr. Camm's Appeal._

"OBJECTED, on the part of Mr. Camm: That the law of 1758, as it tended to suspend the act of 1748, which had obtained the royal approbation, and as it was contrary to his majesty's instructions to his governor, was void _ab initio_, and was so declared by his majesty's order of disapprobation of 10th of August, 1759.

"ANSWER.--Whatever might be allowed to be the effect of these objections, and however they might affect those who made the law, it would be very hard that they should subject to a heavy penalty two innocent subjects,[512:D] who have been guilty of no offence but that of obeying a law pa.s.sed regularly in appearance through the several branches of the legislature of the colony while it had the force of a law upon the spot. It would be to punish them for a mistake of the a.s.sembly. But the objections do not prove either that the law was a nullity from the beginning by its tending to suspend the act of 1748, or by being a.s.sented to by the governor, contrary to his majesty's instructions to him, or that it became void by relation, _ab initio_, from any retrospective declarations of his majesty.

As to the law in question tending to suspend the act of 1748, which had received the royal approbation, a power given by the crown to make laws implies a power to suspend or even repeal former laws which are become inconvenient or mischievous, as the law of 1748 was; otherwise a country at the distance of three thousand miles might be subject to great calamities, before relief could be obtained, for which reason such power is lodged in the legislature of the country.

"As to the governor's consent being contrary to his majesty's instructions to him, it is imagined that his majesty's instructions to the governor are private directions for his conduct in his government, liable to be sometimes dispensed with upon extraordinary emergencies, the propriety of which he may be called to explain. The instructions are not addressed to the people nor promulgated among them; they are not public instruments, nor lodged among the public records of the province. The people know the governor's authority by his commission; his a.s.sent is virtually that of the crown, and by his a.s.sent the law is in force till his majesty's disapprobation arrives and is ratified, consequently everything done in the colony till then conformably thereto is legal.

"As to the order in council having declared the act void _ab initio_, it seems to have been a mistake, the order being as usual generally expressed that the act be disallowed, declared void, and of none effect, which purposely left the effect of the law, during the interval, open to its legal consequences.

"The king's commission to his governor directs him that he shall transmit all laws in three months after their pa.s.sage.

That when the laws are so signified, then such and so many of the said laws as shall be disallowed and signified to the governor should from thenceforth cease, etc. Upon appeal from the c.o.c.kpit to the privy council, the cause was put off _sine die_."

When the clergy appealed to the king, they sent over the Rev. John Camm to plead their cause in England, and agents were employed by the a.s.sembly to resist it. Mr. Camm remained eighteen months in England in prosecution of the appeal. The king at length, by the unanimous advice of the lords of trade, denounced the Two Penny Act as an usurpation, and declared it null and void: and the governor, by express instructions, issued a proclamation to that effect. Fauquier was reprimanded for not having negatived the bill, and was threatened with recall; and he pleaded in excuse that he had subscribed the law in conformity with the advice of the council, and contrary to his own judgment. The board of trade deemed the apology unsatisfactory.[514:A]

But the king's decision not being retrospective, the repeal of the act not rendering it void from the beginning, was in effect futile, the act having been pa.s.sed to be in force for only one year.

At Mr. Camm's instance a suit was brought against the vestry of his parish of York Hampton, for the recovery of the salary in tobacco, the a.s.sembly having, in the mean while, determined to support the vestries in their defence. The case was decided against the plaintiff, Mr. Camm, who, in accordance with the advice of the board of trade, thereupon appealed to the king in council. The appeal was dismissed upon some informality. Camm experienced the perfidy of courtiers, and it being the policy of the government to avoid a collision with the a.s.sembly, the clergy were left in the lurch, to take their chances in the Virginia courts of law. The Rev. Mr. Warrington, grandfather of Commodore Lewis Warrington, endeavored to bring a suit for his salary, payable in tobacco, in the general court, but it was not permitted to be tried, the court awaiting the determination of Camm's case in England, which was in effect an indefinite postponement. Mr. Warrington then brought suit in the county court of Elizabeth City, and the jury brought in a special verdict, allowing him some damages, but declaring the law valid, notwithstanding the king's decision to the contrary. The Rev. Alexander White, of King William County, brought a similar suit, and the court referring both the law and the fact to the jury, they gave the plaintiff trivial damages. The County of Hanover was selected as the scene of the most important trial of this question, and as all the causes stood on the same foot, the decision of this would determine all. This was the suit brought by the Rev. James Maury, of an adjoining parish. The county court of Hanover (November, 1763,) decided the point of law in favor of the minister, thus declaring the "Two Penny Act" to be no law, as having been annulled by the crown, and it was ordered that at the next court a jury, on a writ of inquiry, should determine whether the plaintiff was ent.i.tled to damages, and if so, how much? Maury's success before the jury seemed now inevitable, since there could be no dispute relative to the facts of the case. Mr. John Lewis, who had defended the popular side, retired from the cause as virtually decided, and as being now only a question of damages. The defendants, the collectors of that court, as a dernier resort, employed Patrick Henry, Jr., to appear in their behalf at the next hearing. The suit came to trial again on the first of December, a select jury being ordered to be summoned. On an occasion of such universal interest, an extraordinary concourse of people a.s.sembled at Hanover Court-house, not only from that county, but also from the counties adjoining. The court-house (which is still standing, but somewhat altered,) and yard were thronged, and twenty clergymen sat on the bench to witness a contest in which they had so much at stake. The Rev. Patrick Henry, uncle to the youthful attorney, retired from the court and returned home, at his request, he saying that he should have to utter some harsh things toward the clergy, which he would not like to do in his presence. The presiding magistrate was the father of young Henry. The sheriff, according to Mr. Maury's own account, finding some gentlemen unwilling to serve on the jury, summoned men of the common people. Mr. Maury objected to them, but Patrick Henry insisting that "they were honest men," they were immediately called to the book and sworn. Three or four of them, it was said, were dissenters "of that denomination called 'New Lights.'" On the plaintiff's side the only evidence was that of Messrs. Gist and McDowall, tobacco-buyers, who testified that fifty shillings per hundred weight was the current price of tobacco at that time. On the defendant's side was produced the Rev.

James Maury's receipt for one hundred and forty-four pounds paid him by Thomas Johnson, Jr. The case was opened for the plaintiff by Peter Lyons. When Patrick Henry rose to reply, his commencement was awkward, unpromising, embarra.s.sed. In a few moments he began to warm with his subject, and catching inspiration from the surrounding scene, his att.i.tude grew more erect, his gesture bolder, his eye kindled and dilated with the radiance of genius, his voice ceased to falter, and the witchery of its tones made the blood run cold and the hair stand on end.

The people, charmed by the enchanter's magnetic influence, hung with rapture upon his accents; in every part of the house, on every bench, in every window, they stooped forward from their stands in breathless silence, astonished, delighted, riveted upon the youthful orator, whose eloquence blended the beauty of the rainbow with the terror of the cataract. He contended that the act of 1758 had every characteristic of a good law, and could not be annulled consistently with the original compact between king and people, and he declared that a king who disallowed laws so salutary, from being the father of his people degenerated into a tyrant, and forfeited all right to obedience. Some part of the audience were struck with horror at this declaration, and the opposing advocate, Mr. Lyons, exclaimed, in impa.s.sioned tones, "The gentleman has spoken treason!" and from some gentlemen in the crowd arose a confused murmur of "Treason! Treason!" Yet Henry, without any interruption from the court, proceeded in his bold philippic; and one of the jury was so carried away by his feelings as every now and then to give the speaker a nod of approbation. He urged that the clergy of the established church by thus refusing acquiescence in the law of the land counteracted the great object of their inst.i.tution, and, therefore, instead of being regarded as useful members of the State, ought to be considered as enemies of the community. In the close of his speech of an hour's length, he called upon the jury, unless they were disposed to rivet the chains of bondage on their own necks, to teach the defendant such a lesson, by their decision of this case, as would be a warning to him and his brethren not to have the temerity in future to dispute the validity of laws authenticated by the only authority which, in his opinion, could give force to laws for the government of this colony.[517:A] Amid the storm of his invective the discomfited and indignant clergy, feeling that the day was lost, retired. Young Henry's father sat on the bench bedewed with tears of conflicting emotions and fond surprise. The jury, in less than five minutes, returned a verdict of one penny damages. Mr. Lyons insisted that as the verdict was contrary to the evidence, the jury ought to be sent out again, but the court admitted the verdict without hesitation. The plaintiff's counsel then in vain endeavored to have the evidence in behalf of the plaintiff recorded. His motion for a new trial met with the same fate. He then moved, "that it might be admitted to record, that he had made a motion for a new trial because he considered the verdict contrary to evidence, and that the motion had been rejected," which, after much altercation, was agreed to. He lastly moved for an appeal, which too was granted.

Acclamations resounded within the house and without, and in spite of cries of "Order! Order!" Patrick Henry was reluctantly lifted up and borne in triumph on the shoulders of his excited admirers. He was now the man of the people. In after-years, aged men who had been present at the trial of this cause reckoned it the highest encomium that they could bestow upon an orator to say of him: "He is almost equal to Patrick when he plead[517:B] against the parsons."[517:C]

This speech of Henry's was looked upon by the clergy and their supporters as pleading for the a.s.sumption of a power to bind the king's hands, as a.s.serting such a supremacy in provincial legislatures as was incompatible with the dignity of the Church of England, and as manifestly tending to draw the people of the colonies away from their allegiance to the king. Mr. Cootes, merchant on James River, on coming out of the court, said that he would have given a considerable sum out of his own pocket rather than his friend Patrick should have been guilty of treason, but little, if any, less criminal than that which had brought Simon Lord Lovat to the block. The clergy and their adherents deemed Henry's speech as exceeding the most inflammatory and seditious harangues of the Roman tribunes of the common people. The Rev. Mr.

Boucher, rector of Hanover Parish, in the County of King George, accounted one of the best preachers of his time, said: "The a.s.sembly was found to have done and the clergy to have suffered wrong. The aggrieved may, and we hope often do, forgive, but it has been observed that aggressors rarely forgive. Ever since this controversy, your clergy have experienced every kind of discourtesy and discouragement."[518:A]

It was evident that the munic.i.p.al affairs of Virginia could not be rightly managed, or safely interfered with, by a slow-moving government three thousand miles distant. The act of 1758 appears to have been grounded on humanity, the law of nature, and necessity.

Henry's speech in "the Parsons' Cause," and the verdict of the jury, may be said in a certain sense to have been the commencement of the Revolution in Virginia; and Hanover, where dissent had appeared, was the starting-point. Wirt's description of the scene has rendered it cla.s.sic, and notwithstanding the faults of a style sometimes too florid and extravagant, there is a charm in the biography of Henry which stamps it as one of those works of genius which "men will not willingly let die."

FOOTNOTES:

[507:A] Colonel Richard Bland's Letter to the Clergy.

[508:A] Memoirs of Huguenot Family, 402.

[508:B] Journals of the house of burgesses thus marked are in the possession of Mr. Grigsby.

[509:A] Colonel Bland's Letter to the Clergy, 6.

[509:B] Hening, vii. 240.

[509:C] Ibid., vi. 568.

[509:D] Hist. of Va., iii. 302.

[509:E] See also A. H. Everett's Life of Patrick Henry, in Sparks'

American Biog., (second series,) i. 230.

[510:A] Burnaby's Travels.

[510:B] Bland's Letter to the Clergy, 14.

[512:A] The record of this convention of the clergy, which is probably in the archives of the See of London, would be extremely interesting at the present day.

[512:B] Robinson.

[512:C] Travels through the Middle Settlements in North America in the year 1759 and 1760, with Observations upon the state of the Colonies, by the Rev. Andrew Burnaby, A.M., Vicar of Greenwich. Second edition.

London, 1775.

[512:D] The collectors.

[514:A] Old Churches of Va., i. 217.

[517:A] Letter of Rev. James Maury, in Memoirs of Huguenot Family, 421, 422.

[517:B] In Virginia to this day the preterite of "plead" is p.r.o.nounced "pled." Wirt actually prints the word "pled," and has raised a smile at his expense. It is proper, however, to observe that "plead" and "read"

followed the same a.n.a.logies even in England in the seventeenth century.

Many of the quaint words used by the common people, obsolete among the well educated, and usually set down as illiterate mistakes, are really grounded in traditional authority. Thus the word "gardein," for guardian, is the old law term: and the verb "learn," still often used actively, was, according to Trench, originally employed indifferently in a transitive sense as well as intransitive. The common people are often right without being able to prove it.

[517:C] Wirt's Life of Patrick Henry; Hawks, 124; Old Churches, etc., i.

219.

[518:A] Anderson's Hist. Col. Church, iii. 158.

CHAPTER LXVI.

PATRICK HENRY.

PATRICK HENRY, the second of nine children, was born on the 29th day of May, 1736, at Studley, in Hanover County. The dwelling-house is no longer standing; antique hedges of box and an avenue of aged trees recall recollections of the past. Studley farm, devoid of any picturesque scenery, is surrounded by woods; so that Henry was actually,--

"The forest-born Demosthenes, Whose thunder shook the Philip of the seas."[519:A]

His parents were in moderate but easy circ.u.mstances. The father, John Henry, was a native of Aberdeen, in Scotland; he was a cousin of David Henry, who was a brother-in-law of Edward Cave, and co-editor with him of the _Gentleman's Magazine_, and his successor. Some say that John Henry married Jane, sister of Dr. William Robertson, the historian, and that in this way Patrick Henry and Lord Brougham came to be related.

John Henry, who emigrated to Virginia some time before 1730, enjoyed the friendship and patronage of Governor Dinwiddie, who introduced him to the acquaintance of Colonel John Syme, of Hanover, in whose family he became domesticated, and with whose widow he intermarried. Her maiden name was Sarah Winston, of a good old family. Colonel Byrd describes her as "a portly, handsome dame," "of a lively, cheerful conversation, with much less reserve than most of her countrywomen. It becomes her very well, and sets off her other agreeable qualities to advantage." "The courteous widow invited me to rest myself there that good day, and to go to church with her; but I excused myself by telling her she would certainly spoil my devotion. Then she civilly entreated me to make her house my home whenever I visited my plantations, which made me bow low, and thank her very kindly." She possessed a mild and benevolent disposition, undeviating probity, correct understanding, and easy elocution. Colonel Syme had represented the County of Hanover in the house of burgesses. He left a son who, according to Colonel Byrd, inherited all the strong features of his sire, not softened in the least by those of his mother.[520:A]

John Henry, father of Patrick Henry, Jr., was colonel of his regiment, county surveyor, and, for many years, presiding magistrate of Hanover County. He was a loyal subject, and took pleasure in drinking the king's health at the head of his regiment. He enjoyed the advantage of a liberal education; his understanding was plain but solid. He was a member of the established church, but was supposed to be more conversant with Livy and Horace than with the Bible. He appears to have made a map of Virginia which was published in London in 1770.[521:A]

When James Waddel first came to Virginia he visited the Rev. Samuel Davies in Hanover, near where Colonel John Henry lived, and being introduced to him, on a Sunday, he accepted an invitation to accompany him home. At parting, Mr. Davies remarked to young Waddel, that he would not find the Sabbath observed in Virginia as in Pennsylvania; and he would have to bear with many things which he would wish to be otherwise.

Soon after the settlement of Colonel John Henry in Virginia, Patrick, his brother, followed him, and after some interval became, by his brother's interest, (April, 1733,) rector of St. George's Parish, in the new County of Spotsylvania, where he remained only one year. He afterwards became rector of St. Paul's Church in Hanover. John Henry, in a few years after the birth of his son Patrick, removed from Studley to Mount Brilliant, now the Retreat, in the same county; and it was here that the future orator was princ.i.p.ally educated. The father, a good cla.s.sical scholar, had opened a grammar-school in his own house, and Patrick, after learning the first rudiments at an "old field school" in the neighborhood, at ten years of age commenced his studies under his father, with whom he acquired an English education, and at the age of fifteen had advanced in Latin so far as to read Virgil and Livy; had learned to read the Greek characters, and attained some proficiency in the mathematics. At this age his scholastic education appears to have ended, and, as he mentioned to John Adams in 1774, he never read a Latin book after that. His attainments, however, evince that he could not have been so deficient in application to study as has been commonly supposed.

With a taste so prevalent, and for which his kinsmen, the Winstons, were peculiarly distinguished, he was fond of hunting and angling. He would, it is said, recline under the shade of a tree overhanging the sequestered stream, watching in indolent repose the motionless cork of his fishing-line.

He loved solitude, and in hunting chose not to accompany the noisy set that drove the deer, but preferred to occupy the silent "stand," where for hours he might muse alone and indulge "the pleasing solitariness of thought." The glowing fancy of Wirt has, perhaps, thrown over these particulars some prismatic coloring. Young Henry, probably, after all, fished and hunted pretty much like other lads in his neighborhood. It would, perhaps, not be easy to prove that he was fonder of fishing and hunting than George Mason, George Washington, and many other of his cotemporaries. From his eleventh to his twenty-second year he lived in the neighborhood where Davies preached, and occasionally accompanied his mother to hear him. His eloquence made a deep impression on young Henry, and he always spoke of Davies and Waddel as the greatest orators that he had ever heard. Whether he ever heard Whitefield does not appear.