"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."