Part 2 (2/2)
Cause,” and consequently the essential weakness of the side to the service of which our young laas now summoned, we shall need to turn about and take a brief tour into the earlier history of Virginia
In that colony, froland 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 hborhood were called, not select the functions conferred by the law upon these local officers in Virginia was that of hiring the rector orhiave 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 kindlyan extra quantity 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 land, 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 gestion, either fro 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 soy 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 say[34] Thus, however, in the process of time, there had become established, in the fiscal relations of each vestry to its h 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 ht to demand such athe parson of the occasional advantage of a very goodto him the undisturbed enjoyment of every occasional bad one Yet it was just this mutilation of justice which, only a few years later, a ht to deenius of Patrick Henry, they were too well aided in effecting
Returning now froinian 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 rievedfor all dalect”[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 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 diislature passed an option law,[36] virtually suspending for the next ten y, 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 lahich had been regularly ratified by the king However, the operation of this act was shrewdly lih to accoainst it to be of any direct avail Under these circuy bore their losses for that year with so indeed, but without any formal protest[37]
Just three years afterward, in 1758, the legislature, with even less excuse than before, passed an act[38] si limited to twelveeach parish minister, may be conveyed in very feords In lieu of as 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 hie 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 inia 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 tieneral ”dearth and scarcity,”[40] or any such public distress of any sort as ht overrule the ordinary maxims of justice, and excuse, in the name of humanity, a merely technical violation of law As a inia that year was ”confined to one or two counties on Ja 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 shi+llings the hundred, and then paying to the clergy and others their tobacco debts at the rate of sixteen shi+llings 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 firislature, by a noblea 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 tiislature 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 unblushi+ng avowal of his deter, which would bring hiland, 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 re 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 ly, 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 coally due upon their salaries for the year 1758
Of these suits, the first to coton, in the County Court of Elizabeth City In that case, ”a jury of his own parishi+oners found for hi on their oaths that there was above twice as ranted;”[47] but ”the court hindered hi the act to be law, in which it is thought they were influencedoffense 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 ca 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 shi+rked their responsibility, ”refused tothe whole affair to the jury;” who being thus freed frohtway rendered a verdict of neat and co 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 sumes 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 assured by their counsel that all further struggle would be hopeless, turned for help to the enterprising young laho, in that very place, had been for the previous three and a half years pushi+ng his way to notice in his profession To hiht 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 hianization of his ownonce 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 Dece a select jury ”to exaes, 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 ently attended to by the sheriff His plan seeood, honest jury of twelve adult le one of those over-scrupulous and intractable people who, in Virginia, at that tientleed 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 rooentle already given his opinion in a similar case On this,he i any one person there He afterwardshe was not fit to serve, being a church warden, he took upon himself to excuse him, too, and, as far as I can learn entlear herd After he had selected and set down upon his list about eight or ten of these, Iover it, observed to him that they were not such jurors as the court had directed hi 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 h I objected against them, yet, as Patrick Henry, one of the defendants' lawyers, insisted they were honest men, and, therefore, unexceptionable, they were i thus secured a jury that must have been reasonably satisfactory to the defendants, the hearing began Two gentleest 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 ht in a verdict for the plaintiff,--one penny daes”[52]
Just how the jury were induced, in the face of the previous judg 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,--