A glance at the origin of this famous cause will help us the better to understand the significance of his relation to it. By the treaty with Great Britain in 1783, British subjects were empowered “to recover debts previously contracted to them by our citizens, notwithstanding a payment of the debt into a state treasury had been made during the war, under the authority of a state law of sequestration.” According to this provision a [Pg 360] British subject, one William Jones, brought an action of debt in the federal court at Richmond, against a citizen of Virginia, Thomas Walker, on a bond dated May, 1772. The real question was “whether payment of a debt due before the war of the Revolution, from a citizen of Virginia to British subjects, into the loan office of Virginia, pursuant to a law of that State, discharged the debtor.”
The case, as will readily be seen, involved many subtle and difficult points of law, municipal, national, and international; and the defence was contained in the following five pleas: (1.) That of payment, generally; (2.) That of the Virginia act of sequestration, October 20, 1777; (3.) That of the Virginia act of forfeiture, May 3, 1779; (4.) That of British violations of the treaty of 1783; (5.) That of the necessary annulment of the debt, in consequence of the dissolution of the co-allegiance of the two parties, on the declaration of independence.[418]
Some idea of the importance attached to the case may be inferred from the assertion of Wirt, that “the whole power of the bar of Virginia was embarked” in it; and that the “learning, argument, and eloquence” exhibited in the discussion were such “as to have placed that bar, in the estimation of the federal judges, … above all others in the United States.”[419] Associated with Patrick Henry, for the defendant, were John Marshall, Alexander Campbell, and James Innes.
[Pg 361] For several weeks before the trial of this cause in 1791, Patrick Henry secluded himself from all other engagements, and settled down to intense study in the retirement of his home in the country. A grandson of the orator, Patrick Henry Fontaine, who was there as a student of the law, relates that he himself was sent off on a journey of sixty miles to procure a copy of Vattel’s Law of Nations. From this and other works of international law, the old lawyer “made many quotations; and with the whole syllabus of notes and heads of arguments, he filled a manuscript volume more than an inch thick, and closely written; a book … bound with leather, and convenient for carrying in his pocket. He had in his yard … an office, built at some distance from his dwelling, and an avenue of fine black locusts shaded a walk in front of it.… He usually walked and meditated, when the weather permitted, in this shaded avenue.… For several days in succession, before his departure to Richmond to attend the court,” the orator was seen “walking frequently in this avenue, with his note-book in his hand, which he often opened and read; and from his gestures, while promenading alone in the shade of the locusts,” it was supposed that he was committing his speech to memory.[420] According to another account, so eager was his application to this labor that, in one stage of it, “he shut himself up in his office for three days, during which he did not [Pg 362] see his family; his food was handed by a servant through the office door.”[421] Of all this preparation, not unworthy to be called Demosthenic, the result was, if we may accept the opinion of one eminent lawyer, that Patrick Henry “came forth, on this occasion, a perfect master of every law, national and municipal, which touched the subject of investigation in the most distant point.”[422]
It was on the 14th of November, 1791, that the cause came on to be argued in the court-house at Richmond, before Judges Johnson and Blair of the Supreme Court, and Judge Griffin of that district. The case of the plaintiff was opened by Mr. Counsellor Baker, whose argument lasted till the evening of that day. Patrick Henry was to begin his argument in reply the next morning.
“The legislature was then in session; but when eleven o’clock, the hour for the meeting of the court, arrived, the speaker found himself without a house to do business. All his authority and that of his sergeant at arms were unavailing to keep the members in their seats: every consideration of public duty yielded to the anxiety which they felt, in common with the rest of their fellow citizens, to hear this great man on this truly great and extensively interesting question. Accordingly, when the court was ready to proceed to business, the court-room of the capitol, large as it is, was insufficient to contain the vast concourse that was pressing to enter it. The portico, and the area in which the statue of Washington stands, were filled with a disappointed [Pg 363] crowd, who nevertheless maintained their stand without. In the court-room itself, the judges, through condescension to the public anxiety, relaxed the rigor of respect which they were in the habit of exacting, and permitted the vacant seats of the bench, and even the windows behind it, to be occupied by the impatient multitude. The noise and tumult occasioned by seeking a more favorable station was at length hushed, and the profound silence which reigned within the room gave notice to those without that the orator had risen, or was on the point of rising. Every eye in front of the bar was riveted upon him with the most eager attention; and so still and deep was the silence that every one might hear the throbbing of his own heart. Mr. Henry, however, appeared wholly unconscious that all this preparation was on his account, and rose with as much simplicity and composure as if the occasion had been one of ordinary occurrence.… It may give the reader some idea of the amplitude of the argument, when he is told that Mr. Henry was engaged three days successively in its delivery; and some faint conception of the enchantment which he threw over it, when he learns that although it turned entirely on questions of law, yet the audience, mixed as it was, seemed so far from being wearied, that they followed him throughout with increased enjoyment. The room continued full to the last; and such was ‘the listening silence’ with which he was heard, that not a syllable that he uttered is believed to have been lost. When he finally sat down, the concourse rose, with a general murmur of admiration; the scene resembled the breaking up and dispersion of a great theatrical assembly, which had been enjoying, for the first time, the exhibition of some new and splendid [Pg 364] drama; the speaker of the House of Delegates was at length able to command a quorum for business; and every quarter of the city, and at length every part of the State, was filled with the echoes of Mr. Henry’s eloquent speech.”[423]
In the spring of 1793 this cause was argued a second time, before the same district judge, and, in addition, before Mr. Chief Justice Jay, and Mr. Justice Iredell of the Supreme Court. On this occasion, apparently, there was the same eagerness to hear Patrick Henry as before,—an eagerness which was shared in by the two visiting judges, as is indicated in part by a letter from Judge Iredell, who, on the 27th of May, thus wrote to his wife: “We began on the great British causes the second day of the court, and are now in the midst of them. The great Patrick Henry is to speak to-day.”[424] Among the throng of people who then poured into the court-room was John Randolph of Roanoke, then a stripling of twenty years, who, having got a position very close to the judges, was made aware of their conversation with one another as the case proceeded. He describes the orator as not expecting to speak at that time; “as old, very much wrapped up, and resting his head on the bar.” Meanwhile the chief justice, who, in earlier days, had often heard Henry in the Continental Congress, told Iredell that that feeble old gentleman in mufflers, with his head bowed wearily down [Pg 365] upon the bar, was “the greatest of orators.” “Iredell doubted it; and, becoming impatient to hear him, they requested him to proceed with his argument, before he had intended to speak.… As he arose, he began to complain that it was a hardship, too great, to put the laboring oar into the hands of a decrepit old man, trembling, with one foot in the grave, weak in his best days, and far inferior to the able associate by him.” Randolph then gives an outline of his progress through the earlier and somewhat tentative stages of his speech, comparing his movement to the exercise “of a first-rate, four-mile race-horse, sometimes displaying his whole power and speed for a few leaps, and then taking up again.” “At last,” according to Randolph, the orator “got up to full speed; and took a rapid view of what England had done, when she had been successful in arms; and what would have been our fate, had we been unsuccessful. The color began to come and go in the face of the chief justice; while Iredell sat with his mouth and eyes stretched open, in perfect wonder. Finally, Henry arrived at his utmost height and grandeur. He raised his hands in one of his grand and solemn pauses.… There was a tumultuous burst of applause; and Judge Iredell exclaimed, ‘Gracious God! he is an orator indeed!’”[425] It is said, also, by another witness, that Henry happened that day to wear on his finger a diamond ring; and that [Pg 366] in the midst of the supreme splendor of his eloquence, a distinguished English visitor who had been given a seat on the bench, said with significant emphasis to one of the judges, “The diamond is blazing!”[426]
As examples of forensic eloquence, on a great subject, before a great and a fit assemblage, his several speeches in the case of the British debts were, according to all the testimony, of the highest order of merit. What they were as examples of legal learning and of legal argumentation, may be left for every lawyer to judge for himself, by reading, if he so pleases, the copious extracts which have been preserved from the stenographic reports of these speeches, as taken by Robertson. Even from that point of view, they appear not to have suffered by comparison with the efforts made, in that cause, on the same side, by John Marshall himself. No inconsiderable portion of his auditors were members of the bar; and those keen and competent critics are said to have acknowledged themselves as impressed “not less by the matter than the manner” of his speeches.[427] Moreover, though not expressly mentioned, Patrick Henry’s argument is pointedly referred to in the high compliment pronounced by Judge Iredell, when giving his opinion in this case:—
“The cause has been spoken to, at the bar, with a degree of ability equal to any occasion.… I shall, as [Pg 367] long as I live, remember with pleasure and respect the arguments which I have heard in this case. They have discovered an ingenuity, a depth of investigation, and a power of reasoning fully equal to anything I have ever witnessed; and some of them have been adorned with a splendor of eloquence surpassing what I have ever felt before. Fatigue has given way under its influence, and the heart has been warmed, while the understanding has been instructed.”[428]
It will be readily understood, however, that while Patrick Henry’s practice included important causes turning, like the one just described, on propositions of law, and argued by him before the highest tribunals, the larger part of the practice to be had in Virginia at that time must have been in actions tried before juries, in which his success was chiefly due to his amazing endowments of sympathy, imagination, tact, and eloquence. The testimony of contemporary witnesses respecting his power in this direction is most abundant, and also most interesting; and, for obvious reasons, such portions of it as are now to be reproduced should be given in the very language of the persons who thus heard him, criticised him, and made deliberate report concerning him.