Lion of Liberty (38 page)

“The whole audience convulsed,” according to Judge Stuart. “The clerk of the court, unable to command himself and unwilling to commit any breach of decorum . . . rushed out of the courthouse and threw himself on the grass, in the most violent paroxysm of laughter.” Stuart said that Hook's lawyer was “not able to make an intelligible or audible remark.” When the jury sought to decide the case by acclamation, the judge ordered them to retire “for form's sake,” but they returned almost instantly with a verdict for the defendant. The court overruled the verdict and awarded Hook one penny in damages and another penny for court costs. As the crowd poured out of the courthouse, “Hook began to hear around him a cry more terrible than that of
beef
. It was the cry of
tar and feathers
.” All that saved the Scotsman was “a precipitate flight and the speed of his horse.”
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Henry's most important case—a civil suit—came two years later and helped rebuild his fortune. In a precedent-setting “British Debts Case”—the first of many similar cases—he joined three other lawyers, including
future Chief Justice John Marshall, in defending a Virginian whom British creditors had sued for nonpayment of debts incurred before the Revolutionary War. Hundreds of British merchants were attempting to collect about £5 million in unpaid pre-Revolutionary War debts,
plus
£2 million in interest. Among the 30,000 debtors, half were Virginians—about 10 percent of the adult white male population. On the list of American debtors were President George Washington, who owed British merchants £3,999 plus £1,600 interest, Edmund Randolph, £210 plus interest, and Patrick Henry himself, who owed £972 plus interest. Although most American debtors had hoped the war would wipe out their debts to British creditors, the Treaty of Paris of 1783 that ended the Revolutionary War specifically required American subjects to repay all such debts, and it gave British merchants the right to sue in American courts.

Sketches of Patrick Henry at the British Debts Case of 1791. Drawn by the famed American architect and artist Benjamin Henry Latrobe (1764-1820) when Henry was 55, they are among the few sketches of Henry drawn from life—probably in the mid-1780s.
(FROM A NINETEENTH-CENTURY PHOTOGRAPH).

“British debts have served to kindle a wide-spreading flame,” Attorney General Edmund Randolph reported to President Washington. “The debts are associated with the antifederalists and the discontented federalists, and they range themselves under the standard of Mr. Henry, whose ascension had risen to immeasurable height.”
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Complicating the issue, however, were two laws that Virginia (and a few other states) had passed during the Revolution. The first one had ordered Americans to deposit the moneys they owed British creditors into the state treasury. The second law—a ruse to subsidize state war efforts—allowed the state to seize all moneys in British accounts, including the funds that American debtors had deposited in the Virginia treasury. With the British Debts Cases, Virginia debtors faced having to pay their debts a second time if the court ruled in favor of the British plaintiffs—a financial burden few could afford after the deprivations of war. Because it involved foreigners and sums exceeding $100 (the cutoff value for hearings in district court), two U.S. Supreme Court justices riding the circuit and one district court judge agreed to hear the case in federal circuit court and rule on it.

“Next fall the great question will come on as to their right to recover from our citizens,” one of his co-counsels wrote to Henry. “Your countrymen look up to you on that occasion.”
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According to William Wirt, “The deep interest . . . from a national point of view and the manner in which it involved . . . the honor of the state of Virginia and the fortunes of its citizens had excited Mr. Henry to a degree of preparation which he had never made before.” Indeed, his grandson Patrick Henry Fontaine, who was then studying law with his grandfather, said that Henry “shut himself up in his office for three days, during which he did not see his family. His food was handed to him by a servant through the office door.” In the middle of the first day, he sent his grandson galloping sixty miles and back to fetch a copy of Swiss jurist Emmerich von Vattel's
Le Droit des gens
(translated as
The Law of Nations
)
.
He went into court with “a manuscript volume more than an inch thick with closely written notes and heads of arguments. . . . He came forth a perfect master of every principle of law, national and municipal, which touched the subject . . . in the most distant point.”
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With thousands of Americans—and many Britons—anxiously awaiting the outcome of the trial, Henry rode off to Richmond in late October, and lodged at the home of his co-counsel, John Marshall. “Together,” argues one historian, “they would provide their client with the most formidable combination of legal talent ever assembled” in America. The two not only worked well together, they enjoyed each other and “became warm friends.”
³⁸

On November 23, 1791, plaintiff's lawyers presented what seemed to be clear-cut, irrefutable arguments. When Henry went to begin his rebuttal two days later, he found the way into the capitol all but blocked. The legislature was in session, but when members learned that Henry was to appear, they poured out of their chamber, filling every courtroom seat “to hear this great man on this truly great . . . problem” and leaving an enormous throng of would-be spectators jamming the halls and doorways of the capitol.

“The portico and the area in which the statue of Washington stands were filled with a disappointed crowd,” recalled William Wirt. “In the courtroom itself, the judges . . . 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 the tumult . . . were at length hushed, and the profound silence which reigned . . . gave notice to those without that the orator had risen.”
³⁹

Rising slowly from his seat, his body wrapped in his customary drab, black clothes, he wore his practiced facial expression of a suffering martyr. One spectator commented, “You might readily have taken him for a common planter who cared very little about his personal appearance.”
⁴⁰

Henry apologized to the court for his infirmities, then swayed a bit as if losing his balance, but caught himself: “I stand here, may it please your honors, to support, according to my power, that side of the question which respects the American debtor. I beg leave to beseech the patience of this honorable court; because the subject is very great and important.”

He went on for three consecutive days, arguing that even if his client's failure to pay his alleged debts had inadvertently violated the Treaty of Paris, Britain had made such a violation moot by its own gross violations of the treaty—seizing American cargo ships, impressing American seamen, and failing to evacuate forts in American territory along the northern and western frontiers. With his voice growing in strength and intensity, he charged Britain with having plundered Americans of assets with far greater value than the debts that British merchants were trying to collect.

How would the British have treated Americans had they won the war, he asked, as spectators rose to shout at the plaintiff's lawyers. “In the wars
of the revolution which have taken place in that island, life, fortune, goods, debts, and everything were confiscated. . . . Every possible punishment has been inflicted on suffering humanity that it could endure.”

“Gracious God! He is an orator indeed,” one of the Supreme Court justices recalled saying to himself. He had never heard Henry before.
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In contrast to many of his cases, Henry relied on more than oratory in his presentation. He quoted renowned legal authorities who claimed that creditors risked forfeiture of debts incurred in revolutions, and he cited revolutions in Britain in 1715 and 1745 to demonstrate that if the British government had defeated the Americans, “the most horrid forfeitures, confiscations, and attainders would have been pronounced against us.” Indeed, had the British caught Henry, they would have hung him as a traitor, then drawn and quartered him.

“Would not our men have shared the fate of the people of Ireland?” he boomed.

“What confiscations and punishments were inflicted in Scotland? The plains of Culloden and the neighboring gibbets would show you.

Just before Christmas 1791, the court reserved decision and adjourned for the holidays, allowing Henry to return home to his wife and family after an absence of two months. On arrival, he shocked them all
by announcing plans to move them all to a new home that Governor Henry “Light-Horse Harry” Lee, his wife's cousin, had sold him about forty miles to the west in Campbell County.

“He regarded as nothing the trouble of moving,” brother-in-law Samuel Meredith remarked. “He would change his dwelling with as little concern as a common man would change a coat of which he was tired.”
⁴³
Indeed, by the time he died, Henry had lived in more than a dozen different homes in five counties—all of them within a radius of 200 miles in Virginia. His inexplicable propensity for moving, however, was curious for a man who despised traveling out of state and was so loathe to distance himself from his family that he refused to participate in what was the nation's most important gathering in history at the Constitutional Convention in Philadelphia.

Henry's new home was a 2,500-acre plantation overlooking Long Island—a picturesque island in the Staunton River. Long Island proved a profitable property, with 35 slaves producing about 17,500 pounds of tobacco a year, along with corn, wheat, oats, and rye. Livestock included 93 head of cattle, 48 sheep, 240 hogs, 14 horses, and 4 yoke of oxen.
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Its quiet isolation inspired Henry to write poetry and “little sonnets he adapted to old Scotch songs,” then played on his fiddle. The solitude he enjoyed, however, quickly drove Dolly and the lively—and unmarried—Henry girls to distraction.

The court did not issue a ruling on the British Debts Case until June 7, 1793, when it rejected Henry's argument that a breach of a treaty by either side automatically nullifies the entire treaty. Henry's other arguments, however, won as much of a victory for his client as he might have hoped for: The court awarded his client full credit for the amount he had paid into the Virginia state treasury and left him owing his British creditors only the difference between that amount and the original debt. Legal scholars in America and Britain—along with creditors and debtors—hailed the decision as just and equitable and a legal triumph for Henry that rescued some 30,000 American debtors from financial disaster. An Anglo-American commission appointed to determine the exact amounts Americans owed British merchants was unable to reach agreement on the sum owed. After a series of discussions
in 1802, the U.S. government agreed to pay the British Government £600,000 to settle the issue—a mere 12 percent of the £4,930,000 owed to British creditors. In the end, individual American debtors escaped without paying an extra penny.

“As long as I live,” Supreme Court Justice James Iredell commented, “I shall 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 ever felt before.”
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Clergyman Archibald Alexander of Princeton explained Henry's uncanny skills this way: