Henry would meet a major setback in his plans for the Yazoo grants when President Washington negotiated a treaty with Creek Indians in August 1790 that returned the Yazoo lands to them and invalidated the agreement between Georgia and Henry’s consortium. Henry was incensed. This treaty confirmed his fear that the national government would trample the states and the people. “It is a deception to urge,” he wrote, “that encroachments from the American government are not dangerous. In fact they are the more to be dreaded at this particular time in our own government than from any other quarter. No foreign power can annoy us. Therefore from our own rulers only can usurpation spring.” He understandably saw the negation of the Yazoo land grant as a political power grab and an early validation of his fears about the power of the government, but it was also one more failed opportunity to make money on western investments. The line between political principle and personal enrichment did sometimes blur, unfortunately, in Henry’s career. But there was nothing he could do to retain control of these lands, which he and his colleagues only really owned in principle. The Yazoo grants would later degenerate into notorious corruption; in the mid-1790s, speculators procured the Yazoo territory again via bribery of Georgia legislators, but by that time Henry’s stake in the region had evaporated.14
Land speculation remained in Henry’s blood even after the Yazoo debacle. Into the late 1790s, he was involved in deals in Virginia and North Carolina—bargains that often involved the sale not only of land but also of slaves. His 1798 negotiations for the Seven Islands plantation, just across the Staunton River from his Red Hill estate, were complicated by his attempts to buy slaves working there. Henry was concerned that they were too expensive, but in a magnanimous tone he wrote that “they are so extremely desirous of staying with me, I consent to take them.” Henry’s early flirtations with antislavery advocacy would never fundamentally alter his attitude about trafficking in slaves.15
Land and slaves were Henry’s means of securing his financial security. But because of the swiftly changing fortunes in the land deals, the uncertainties of personal income from crop sales, and his own periodic episodes of extravagance, Henry occasionally fell into debt. His most severe bout of indebtedness occurred in the mid-1780s, when Henry apparently abandoned his normally modest spending habits to keep up with the stylish expectations of the governor’s office. His son-in-law Spencer Roane recalled that in those years Henry never appeared in public without fine clothes, including a scarlet cloak and powdered wig. Members of his family “were furnished with an excellent coach, at a time when these vehicles were not so common as at present. They lived as genteelly, and associated with as polished society, as that of any governor before or since has ever done. He entertained as much company as others, and in as genteel a style; and when, at the end of two years, he resigned the office, he had greatly exceeded the salary, and [was] in debt, which was one cause that induced him to resume the practice of the law.” Henry recognized he had brought this liability on himself and his family and vowed to rectify it. By 1785, he had begun to fear that if he died early, he would leave his family vulnerable to his creditors, to whom he owed money as late as 1791, when he wrote Betsey from Richmond telling her that he was “obliged to be very industrious and to take on me great fatigue to clear myself of debt.” He said that he aimed to get out of arrears within a couple years, and by 1794, he had achieved his goal. Roane noted that “for a great part of his life (tho’ he died rich) he was struggling in debt and difficulties,” but it seems that toward the end of his life he regained the financial independence he had so valued and striven for.16
Practicing law not only buttressed Henry’s finances but also allowed him to advocate for the economic liberty of Virginians by protecting them from the continuing claims of the British. The most famous case of his life (aside from the Parsons’ Cause of 1763) came in his 1791 defense of Virginia debtors against lawsuits brought by British creditors. The Treaty of Paris maintained that Americans had to pay their outstanding individual and business debts to Britain, but many Virginians had refused. Even Henry himself insisted that he would not pay any outstanding British debts he owed, although his cluttered records made it difficult for him to discern exactly how much he might owe to British lenders—very little, he approximated hopefully in a 1785 memorandum to himself.17
When British creditors sued Virginians to collect the debts, Henry seized the opportunity to argue that the war had voided the Americans’ obligations. Defending his clients before a panel of judges, he poignantly appealed to the sacrifices Americans had made in the Revolution and reminded the legal board of the deprivations they would have faced if the British had won. Even Henry’s critics admitted that he had lost little of his persuasive powers; his old enemy Edmund Pendleton grudgingly told James Madison that “Mr. Henry was truly great, and for the first time I ever heard him, methodical and connected for two days and a half.” His argument carried the day, both in the initial hearing and on appeal in 1793. The Supreme Court overturned these rulings in 1796, but Henry was no longer involved with the case by then.18
Henry loved to turn complaints filed by British citizens and Loyalists into occasions to revisit the glorious cause of American liberty. In one notable 1789 case in New London, Virginia, an aggrieved Loyalist named John Hook sued an American army commissary who in 1781 had seized two of Hook’s cows without permission. Henry defended the commissary by recalling the sufferings of Washington’s troops in the late stages of the war. What kind of man, he asked, would refuse to feed these destitute freedom fighters? He reminded the jury of the great victory at Yorktown, evoking the patriots’ shouts of elation there. Henry then bellowed, “But hark! What notes of discord are these which disturb the general joy, and silence the acclamations of victory—they are the notes of John Hook, hoarsely bawling through the American camp, beef! beef! beef !” Not only did Hook lose the case, but angry locals almost tarred and feathered him.19
Henry participated in more scandalous trials as well, which might have signaled a willingness on his part to engage ethically dubious clients in exchange for financial gain. The most famous of these cases was his 1793 defense of young Richard Randolph against the charge of infanticide. Randolph had married his cousin Judith in 1789, but within a few years he apparently became sexually involved with Judith’s younger sister Nancy. When the affair produced a child, prosecutors claimed, Randolph murdered the baby and disposed of the body. Randolph claimed that Nancy had not been pregnant, and the witnesses who had seen the most—plantation slaves who saw Randolph on the day in question—were barred from testifying under Virginia law. Henry, along with future chief justice John Marshall, argued that Richard Randolph was the victim of rumor-mongering. They got him acquitted.20
BY THE EARLY 1790s, Henry had reconciled himself to the new American government and abandoned (for the most part) notions of resistance or forming a separate republic. Henry expressed his feelings to James Monroe in a January 1791 letter, in which he suggested that in the interest of American unity, the anti-federalists should cooperate with the government: “Although the form of government into which my countrymen determined to place themselves, had my enmity, yet as we are one and all embarked, it is natural to care for the crazy machine, at least so long as we are out of sight of a port to refit.” If Americans were out at sea on a defective boat, then Henry thought they should make the best of it until time presented an opportunity to dock and rebuild the ship.21
Even as he acquiesced, however, Henry worried that the government was already fulfilling his worst fears. He particularly loathed Alexander Hamilton’s plans for bolstering the nation’s public credit. Under his plan, outlined in 1790, Hamilton wanted the federal government to assume state debts incurred during the Revolution, which would significantly expand the national government’s financial burden and disproportionately benefit the northern states, which had paid off less of their debts than those in the South, including Virginia. For Henry, the plan was “a consistent part o
f a system which I ever dreaded. Subserviency of southern to northern interests are [sic] written in capitals on its very front.” He called Hamilton and his supporters “advocates of oppression.”22
Having feared that the Constitution, as originally written, would not adequately restrict the actions of the national government, Henry now became an advocate for its strict interpretation—the only hope if the states were to maintain their power. As one of his last acts in the legislature, Henry sponsored a resolution in late 1790 protesting Hamilton’s debt financing plan, arguing that it violated the Constitution because it claimed a power not expressly granted to the national government. The resolution ended ominously with the warning that the plan would “alienate the affections of the good citizens of this Commonwealth, from the government of the United States, will lessen their confidence in its wisdom and justice, and finally tend to produce measures extremely unfavourable to the interests of the union.” The threat of secession yet loomed.23
The debt assumption plan caused a major split between the great defenders of the Constitution, James Madison and Alexander Hamilton. This division led to the organization of Madison and Jefferson’s Republican Party, which opposed Hamilton and the Federalists’ financial program. Henry ideologically sympathized with Madison and Jefferson’s hostility to Hamilton’s economic scheme, but he was never a likely candidate to join the ranks of the Republicans. Jefferson’s animosity toward him ran too deep, and Henry’s respect for Washington inclined him to support the administration and the Federalist Party. Henry’s political alignments in the 1790s reflected both his pragmatism and the perpetuation of his decade-old feud with Jefferson.
As for his relationship with Washington, it had cooled during the debates over the Constitution. Their disagreement even risked becoming clouded with the sort of bitterness that already separated Henry and Jefferson. Henry had heard rumors that Washington had made disparaging comments about him being a “factious, seditious character.” By 1794, however, Washington and Henry began to patch up their alliance, and Washington made several attempts to have Henry serve in his administration. Governor Henry Lee of Virginia brokered the rapprochement between the two men. “Light Horse Harry” was quickly becoming one of Henry’s closest friends, even though they had engaged in nasty debates at the Virginia ratifying convention. Washington told Lee that he had never made any insulting remarks about Henry even when they profoundly disagreed. “On the question of the constitution, Mr. Henry and myself, it is well known, have been of different opinions, but personally I have always respected and esteemed him.” Washington considered himself indebted to Henry because of Henry’s loyalty during the dark times of 1778, when some patriots tried to remove him from command of the army, and Henry refused to participate in the plot, instead alerting the general to the campaign against him.24
Harry Lee offered Henry an appointment to the U.S. Senate in 1794. (James Monroe had just vacated his seat to become an envoy to France.) Lee knew Henry might be reluctant to leave retirement, but he cited “our conviction of your preferential love of country” and a growing crisis over relations with France and Britain as grounds for his request. Many Virginians were delighted when news of the offer broke, with a Lynchburg editorial heralding the prospect of the appointment of “this veteran defender of the rights and liberties of the people.” But Henry refused, explaining that personal circumstances and his distance from Philadelphia prevented him from accepting.25
Henry also declined an offer to become ambassador to Spain. President Washington was eager to put someone in the position who had a national reputation and deep roots in Kentucky, where the issue of Spanish relations historically had mattered most. This diplomat would negotiate navigation rights to the Mississippi, the very issue that had helped galvanize Henry’s resistance to the new Constitution. Eight years earlier, Henry might have jumped at such an opportunity, but now he refused, citing again the difficulties of leaving his retirement. Henry may have felt confident that the Americans and Spanish would eventually work out the favorable terms he had sought in the 1780s, and indeed, in 1795, the man sent in Henry’s stead, Thomas Pinckney of South Carolina, settled with Spain on an agreement that allowed free navigation of the Mississippi and access to the port of New Orleans.26
Henry’s repeated refusals to assume national office resulted not only from his financial fears, but also from a growing concern over his family’s health. He felt like he was constantly dodging death, and of course it was constantly stalking his children. Each summer, Virginia would be ravaged by dysentery (or “the flux”), a malady that could cause violent, bloody diarrhea and was often fatal. “The flux has been very near us, but, it has pleased God, we escaped it,” Henry told Betsey in 1793. Shortly after declining the Senate seat and ambassadorship, he informed his daughter that the flux was again plaguing the area and that many of his slaves were suffering from the “ague,” or malarial fever, an illness he knew well from his frequent bouts in the past. Henry feared leaving his family behind for long durations when mortal illnesses could seize any of them at any moment.27
The offers from Lee and Washington reveal how much political influence Patrick Henry retained even in retirement. By 1794–95, both Washington’s Federalists and the emerging Republican Party of Jefferson dreamed of enticing him out of his repose to support their side. Because of the instability caused by the French Revolution as well as growing tension with Britain, America had entered its most dire international crisis since the Revolution. Bitterness that lingered after the Revolution, along with the British navy’s seizure of ostensibly neutral American ships, led Republicans to clamor for war. But Washington and the Federalists loathed both the idea of war with Britain and any renewed alliance with a France that had descended into murderous chaos, with former King Louis XVI and Marie Antoinette among the tens of thousands guillotined. Federalists warned that another war with Britain would wreck the fledgling American economy just as it was finding its strength. America depended on Britain for three-quarters of its foreign trade.
Henry had a personal stake in peace; he feared that war would create an economic catastrophe that would ruin his chances of getting out of debt through land sales. Once again, the line between Henry’s personal finance and his politics blurred. Washington dispatched John Jay—notorious for his role in the negotiations with Spain over the Mississippi in the mid-1780s—to London in 1794 to avert a military clash. In this situation, Henry’s endorsement of the Federalists or the Republicans would carry a great deal of political weight, as he maintained his national reputation as an independent-minded patriot. Even Jefferson briefly tried to reconcile with Henry in early 1795, asking a common friend to assure Henry that he harbored no bad feelings toward him.28
It was Washington, however, who made the most strenuous efforts to recruit Henry. The offers of a Senate seat and ambassadorship were followed, finally, by an invitation in 1795 to become secretary of state. Washington knew that if Henry accepted the post, it would facilitate the nation’s reception of the Jay Treaty, which the Senate approved in mid-1795, granting America favorable trade status with Britain and aligning the new nation diplomatically with the kingdom from which it had so recently won its freedom. Yet it failed to address some of the key grievances remaining from the Revolution, such as British compensation for slaves they took from Americans during the war. The treaty was sure to alienate the French, Britain’s inveterate enemies. It led to a final break in the relationship between George Washington and James Madison, and further energized Madison’s Republican Party. Although early reaction to the treaty was mixed in the North, it sparked general outrage in the South. One poem printed in a Virginia newspaper recommended that Americans “spurn the base born child, the imp of slavery begot in hell.” Rumors swirled that the treaty might yet again lead Virginia to consider seceding from the Union.29
Throughout the uproar about the Jay Treaty, Henry maintained silence. His reticence explains Washington’s interest in making him secretary o
f state. If Henry was not opposed to the Jay Treaty, then recruiting him to the cabinet would be a major coup. One adviser told Washington that bringing Henry on board would devastate the Republican movement: “a more deadly blow could not be given to the faction in Virginia, and perhaps elsewhere, that that gentleman’s acceptance of the office in question, convinced as we are of the sentiments he must carry with him. So much have the opposers of the government held him up as their oracle, even since he has ceased to respond to them, that any event, demonstrating his active support to government, could not but give the party a severe shock.” That October, Washington made the offer, stating his case as forcefully as possible, in language he knew Henry would understand. The crisis at hand, Washington wrote, would “decide whether order and good government shall be preserved, or anarchy and confusion ensue.” He assured Henry that he did not intend to pursue an alliance with Britain or any other European nation beyond the limited bonds the treaty set forth, and that all he sought was America’s continued independence and welfare.30
Henry was flattered by Washington’s offer, but he still did not accept. He gave the usual reasons: he and Dorothea had eight children of their own, with yet another on the way, and he feared going to Philadelphia, then the nation’s capital, where his family would be exposed to smallpox and yellow fever. Henry himself was in relatively poor health, and recent crop losses added to the “derangement” of his finances. Ever since he was a young man, the necessity of boosting his finances often had taken him out of the public arena, but never had personal contingencies distracted him from a more significant role. On the other hand, Henry was hardly alone: he was the fourth of five men who refused Washington’s offer before Washington finally found a taker in Timothy Pickering, his secretary of war. One of the others who declined, Massachusetts’s Rufus King, professed that he had no interest in becoming another object of the “foul and venomous shafts of calumny” increasingly directed at the government.31
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