CHAPTER LXV.
1763.
The Parsons' Cause—Patrick Henry's Speech.
In the year 1763 occurred the famous "Parsons' Cause," in which the genius of Patrick Henry first shone forth. The emoluments of the clergy of the established church for a long time had consisted of sixteen thousand pounds of tobacco, contributed by each parish. The tobacco crop of 1755 failing, in consequence of a drought, and the exigencies of the colony being greatly augmented by the French and Indian war, the assembly passed an act, to endure for ten months, authorizing all debts due in tobacco to be paid either in kind or in money, at the rate of sixteen shillings and eight pence for every hundred pounds of tobacco. This was equivalent to two pence per pound, and hence the act was styled by the clergy the "Two Penny Act." As the price of tobacco now rose to six pence per pound, the reduction amounted to sixty-six and two-thirds per cent. At two pence the salary of a minister clergy was about one hundred and thirty-three pounds; at six pence, about four hundred pounds. Yet the act must have operated in relief of the indebted clergy equally with other debtors, and many of the ministers were in debt. It was by no means the intention of the assembly to abridge the maintenance of the clergy, or to bear harder upon them than upon all other public creditors; and as they, under the new act, in fact, received in general a larger salary than they had received in any year since it was first regulated by law, they, above all men, ought to have been content with it in a year of so much distress.[507:A] The taxes were enormous, and fell most heavily upon planters of limited means; and the tobacco-crop was greatly fallen off. The Rev. James Maury, in whose behalf the suit was afterwards brought, had himself at the time expressly approved of the Two Penny Act, and said: "In my own case, who am entitled to upwards of seventeen thousand weight of tobacco per annum, the difference amounts to a considerable sum. However, each individual must expect to share in the misfortunes of the community to which he belongs."[508:A] The law was universal in its operation, embracing private debts, public, county, and parish levies, and the fees of all civil officers. Its effect upon the clergy was to reduce their salary to a moderate amount in money, far less, indeed, than the sixteen thousand pounds which they were ordinarily entitled to, yet still rather more than what they had usually received. The act did not contain the usual clause, by which acts altering previous acts approved by the crown were suspended until they should receive the royal sanction, since it might require the entire ten months, the term of its operation, to learn the determination of the crown. The king had a few years before expressly refused to allow the assembly to dispense with the suspending clause in any such act. The regal authority was thus apparently abnegated; necessity discarding forms, and the safety of the people being the supreme law. Up to the time of the Revolution the king freely exercised his authority in vetoing acts of the assembly when they had been approved by large majorities of the house of burgesses and of the council. The practice was to print all the acts at the close of each session, and when an act was negatived by the king, that fact was written against the act with a pen.[508:B]
No open resistance was offered to the Two Penny Act; but the greater number of clergy petitioned the house of burgesses to grant them a more liberal provision for their maintenance. Their petition set forth: "That the salary appointed by law for the clergy is so scanty that it is with difficulty they support themselves and families, and can by no means make any provision for their widows and children, who are generally left to the charity of their friends; that the small encouragement given to clergymen is a reason why so few come into this colony from the two universities; and that so many, who are a disgrace to the ministry, find opportunities to fill the parishes; that the raising the salary would prove of great service to the colony, as a decent subsistence would be a great encouragement to the youth to take orders, for want of which few gentlemen have hitherto thought it worth their while to bring up their children in the study of divinity; that they generally spent many years of their lives at great expense in study, when their patrimony is pretty well exhausted; and when in holy orders they cannot follow any secular employment for the advancement of their fortunes, and may on that account expect a more liberal provision."[509:A] Another relief act, similar to that of 1755, fixing the value of tobacco at eighteen shillings a hundred, was passed in 1758[509:B] upon a mere anticipation of another scanty crop.[509:C] Burk[509:D] attributes the rise in the price of tobacco to the arts of an extravagant speculator; but he cites no authority for the statement, and the acts themselves expressly attribute the scarcity, in 1755, to "drought," and in 1757 to "unseasonableness of the weather."[509:E] The crop did fall short, and the price rose extremely high; and contention ensued between the planters and the clergy. The Rev. John Camm, rector of York Hampton Parish, assailed the "Two Penny Act" in a pamphlet of that title, which was replied to severally by Colonel Richard Bland and Colonel Landon Carter. An acrimonious controversy took place in the Virginia Gazette; but the cause of the clergy became at length so unpopular, that a printer could not be found in Virginia willing to publish Camm's rejoinder to Bland and Carter, styled the "Colonels Dismounted," and he was obliged to resort to Maryland for that purpose. The colonels retorted, and this angry dispute threw the colony into great excitement. At last the clergy appealed to the king in council. By an act of assembly passed as early as the year 1662, a salary of eighty pounds per annum was settled upon every minister, "to be paid in the valuable commodities of the country—if in tobacco, at twelve shillings the hundred; if in corn, at ten shillings the barrel." In 1696 the salary of the clergy was fixed at sixteen thousand pounds of tobacco, worth at that time about eighty pounds. This continued to be the amount of their stipends until 1731, when, the value of tobacco being raised, they increased to about one hundred or one hundred and twenty pounds, exclusive of their glebes and other perquisites. In Virginia, besides the salaries of the clergy, the people had to bear parochial, county, and public levies, and fees of clerks, sheriffs, surveyors, and other officers, all of which were payable in tobacco, the paper currency of the colony having banished gold and silver from the colony.[510:A] The consequence of this state of things was that a failure in the crop involved the people in general distress; for by law if the salaries of the clergy and the fees of officers were not paid in tobacco by the tenth day of April, the property of delinquents was liable to be distrained, and if not replevied within five days, to be sold at auction. Were they to be exposed to cruel imposition and exactions; to have their estates seized and sacrificed, "for not complying with laws which Providence had made it impossible to comply with? Common sense, as well as common humanity, will tell you that they are not, and that it is impossible any instruction to a governor can be construed so contrary to the first principles of justice and equity, as to prevent his assent to a law for relieving a colony in a case of such general distress and calamity."[510:B] Sherlock, Bishop of London, in his letter to the lords of trade and plantations, denounced the act of 1758, as binding the king's hands, and manifestly tending to draw the people of the plantations from their allegiance to the king. It was replied, on the other hand, that if the Virginians could ever entertain the thought of withdrawing from their dependency on England, nothing could be more apt to bring about such a result than the denying them the right to protect themselves from distress and calamity in so trying an emergency. In the year when this relief act was passed, many thousands of the colonists did not make one pound of tobacco, and if all of it raised in the colony had been divided among the tithables, "they would not have had two hundred pounds a man to pay the taxes, for the support of the war, their levies and other public dues, and to provide a scanty subsistence for themselves and families;" and "the general assembly were obliged to issue money from the public funds to keep the people from starving." The act had been denounced as treasonable; but were the legislature to sit with folded arms, silent and inactive, amid the miseries of the people? "This would have been treason indeed,—treason against the state,—against the clemency of the royal majesty." Many landlords and civil officers were members of the assembly in 1758, and their fees and rents were payable in tobacco; nevertheless, they cheerfully promoted the enactment of a measure by which they were to suffer great losses. The royal prerogative in the hands of a benign sovereign could only be exerted for "the good of the people, and not for their destruction." "When, therefore, the governor and council (to whom this power is in part delegated) find, from the uncertainty and variableness of human affairs, that any accident happens which general instructions can by no means provide for, or which, by a rigid construction of them, would destroy a people so far distant from the royal presence, before they can apply to the throne for relief, it is their duty as good magistrates to exercise this power as the exigency of the state requires; and though they should deviate from the strict letter of an instruction, or, perhaps in a small degree from the fixed rule of the constitution, yet such a deviation cannot possibly be treason, when it is intended to produce the most salutary end—the preservation of the people."
The Rev. Andrew Burnaby, who passed some months in Virginia about the time of this dispute, travelling through the colony and conversing freely with all ranks of people, expresses himself on the subject in the following manner: "Upon the whole, however, as on the one hand I disapprove of the proceedings of the assembly in this affair, so on the other I cannot approve of the steps which were taken by the clergy; that violence of temper, that disrespectful behavior toward the governor, that unworthy treatment of their commissary, and, to mention nothing else, that confusion of proceeding in the convention,[512:A] of which some, though not the majority, as has been invidiously represented, were guilty; these things were surely unbecoming the sacred character they are invested with, and the moderation of those persons who ought in all things to imitate the conduct of their Divine Master. If instead of flying out in invectives against the legislature, of accusing the governor of having given up the cause of religion by passing the bill, when, in fact, had he rejected it, he would never have been able to have got any supplies during the course of the war, though ever so much wanted; if instead of charging the commissary[512:B] with want of zeal, for having exhorted them to moderate measures, they had followed the prudent counsels of that excellent man, and had acted with more temper and moderation, they might, I am persuaded, in a very short time have obtained any redress they could reasonably have desired. The people in general were extremely well affected toward the clergy."[512:C]
The following paper exhibits the view maintained by Richard Henry Lee on this mooted topic:—
"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 passed 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 assembly. 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 assented 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 assent is virtually that of the crown, and by his assent 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 passage. 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 Cockpit 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 assembly 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 passed 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 assembly 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 assembly, 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 entitled 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 assembled 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, embarrassed. In a few moments he began to warm with his subject, and catching inspiration from the surrounding scene, his attitude 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 impassioned 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 institution, 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 assumption of a power to bind the king's hands, as asserting 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 assembly 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 municipal 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 classic, 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 pronounced "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 analogies 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.
