Lion of Liberty

by Harlow Giles Unger

  Pleased by Madison’s defeat—and his own role in contributing to it—Henry was eager to go home to rest, embrace his wife, and romp with his children, but, as he wrote to his daughter Elizabeth Aylett, he realized that “I have not a moment to spare” to ensure Antifederalist control of the new Congress. Indeed, he did not even have time to see his own latest newborn.I have a son . . . four months old. The dear little family were all well a few days ago, when your mama wrote me a letter and desired her love to Annie and you. We hope to have the pleasure to see you . . . I hope my dear child . . . that Providence may dispense its favors to you and yours is the prayer of, my dear Betsey,

  Your affectionate Father,

  P. Henry15

  Henry wrote to congratulate his old friend and ally Richard Henry Lee on the latter’s election to the Senate and told him he had cast aside all ambitions for public office under the new Constitution. “I mean not to take any part in deliberations held out of this state, unless in Carolina, from which I am not very distant and to whose politics I wish to be attentive.” He told Lee that parts of Virginia, North Carolina and Kentucky might secede if the new Congress “do not give us substantial amendments” to the Constitution—and that he might then move to North Carolina. Although he did not say he would encourage secession, he conceded that he had invested in large tracts of land in the Carolina and Kentucky frontier areas contiguous to western Virginia and that he was in close contact with western leaders.

  I will turn my eyes to that country. I am indeed happy where I now live in the unanimity that prevails on this subject, for in near twenty adjoining counties, I think at least nineteen-twentieths are antifederal, and this great extent of country in Virginia lays adjoining to North Carolina and with her forms a great mass of opposition not easy to surmount. . . . I firmly believe the American union depends on the success of amendments. God grant I may never see the day when it shall be the duty of . . . Americans to seek shelter under any other government than that of the United States.16

  Undeterred by his defeat in the Senate election, James Madison declared for the House of Representatives—only to have Henry direct the Assembly to redraw boundaries of Madison’s congressional district to include counties with large enough Antifederalist majorities to offset the Federalist majority in Madison’s home county.

  “In plain English,” Washington’s private secretary Tobias Lear wrote from Mount Vernon to his friend the governor of New Hampshire, “he [Henry] ruled a majority of the Assembly, and his edicts were registered by that body with less opposition than those the Grand Monarch has met from his parliaments. . . . And after he settled everything relative to the government . . . to his satisfaction, he mounted his horse and rode home, leaving the little business of the state to be done by anybody who chose to give themselves the trouble of attending to it.”17

  Madison countered Henry’s political tactic by repeating his earlier pledge to champion a bill of rights in Congress. Hoping to woo moderate Antifederalists, the coauthor of The Federalist essays pledged to fight for religious freedom, a major issue among Virginia’s Baptists and other dissenters. He stopped short, however, of espousing Henry’s call for another constitutional convention and the structural amendments that Henry favored to change the form of government under the Constitution.

  Before leaving Richmond for home, Henry made the political misjudgment of coaxing James Monroe to run against Madison for the House of Representatives. Monroe and Madison were not only close friends, they shared close political and personal ties to the same political mentor—Thomas Jefferson. Monroe expressed his reluctance to Henry, but Henry “pressed me to come forward in this government on its commencement . . . and that I might not lose an opportunity of . . . forwarding an amendment of its defects . . . I yielded.”18 The result of the Monroe-Madison matchup was a less than vigorous campaign, with Monroe refusing to attack Madison personally and even traveling with Madison on the campaign trail, sharing the same room at inns and private homes—and echoing his pledges to champion a bill of rights.

  On February 2, 1789, Madison easily defeated Monroe and joined nine other Virginians—six other Federalists and three Antifederalists—as the largest delegation in the House. Irate Federalists called Madison a turncoat for pledging to work for passage of a bill of rights, and even some moderates thought him disingenuous. But Jefferson and Monroe called Madison’s shift a courageous political gesture aimed at reconciling legitimate differences between Americans. By supporting the most important Antifederalist demands for a bill of rights, Madison extended a hand of compromise that separated moderates from Patrick Henry’s radicals, who sought to emasculate the new national government. Madison was not unmindful that a strong central authority might infringe on individual liberties, but the years of the Continental Congress and Confederation Congress had persuaded him—as it had once persuaded Henry—of the need for a stronger national government to organize a collective military response by the states to attacks by foreign enemies.

  In a separate election, Patrick Henry won a seat in the Electoral College and cast his vote for George Washington as president. Allowed to cast two votes, he cast his other vote for Antifederalist George Clinton as vice president. Washington won by a unanimous vote, while Federalist John Adams received the second largest vote total and defeated Clinton for the vice presidency.

  With Washington’s approval, Madison fulfilled his campaign pledge to champion Henry’s bill of rights. After taking his seat in the House of Representatives, he moved for “Amendments . . . that may serve the double purpose of satisfying the minds of well-meaning opponents, and of providing additional guards in favor of liberty.”19 Madison failed to address the issue of states’ rights, however, and Antifederalist Senator Grayson expressed his outrage to Henry:Some gentlemen here . . . have it in contemplation to effect amendments which shall affect personal liberty alone, leaving the great points of the judiciary, direct taxation, etc., to stand as they are. Their object is . . . unquestionably to break the spirit of the Antifederalist party . . . After this I presume many of the most sanguine expect to go on cooly in sapping the independence of the state legislatures.20

  The seeds of civil war were taking root.

  Four months later, Madison resolved that the Constitution be amended with “a declaration of the rights of the people” to ensure “the tranquility of the public mind, and the stability of the government.”21 Although members proposed seventy-five amendments, the House approved only seventeen, and the Senate reduced the number to twelve. The states ratified ten, which became known collectively as the Bill of Rights. After reading them, Henry exploded with rage over the failure of the amendments to restrict national government powers over the states. “I wrote the first of those amendments in these words,” he exploded in front of his sons. “‘Each state in the Union shall respectively retain every power, jurisdiction and right which is not by this Constitution delegated to the Congress of the United States or to the departments of the Federal Government.’ But they have omitted it . . . and changed it into this equivocal thing . . . ‘or to the people.’ My sons, this Constitution cannot last. It will not last a century. We can only get rid of it by a most violent and bloody struggle.”22

  The South would long remember his words.

  Despite Henry’s objections to the amendments, Americans of all political persuasions hailed him as father of the Bill of Rights and champion of individual liberties, although it was Madison who had proposed them in Congress and fought for their adoption.

  The overwhelming Federalist victory in the congressional and presidential elections swept Federalists to power in most state legislatures, and, when the Virginia legislature reconvened in October 1789, the Federalist majority all but emasculated Henry as a major political force. “In the business of the lately proposed amendments,” he wrote despondently to his old friend and political ally, Richard Henry Lee, “I see no ground to hope for good, but the contrary.”23 After a few weeks, he left for home—a ce
rtain indication that Dorothea would bear him another child nine months later.

  Knowing nothing of the joys that awaited Henry at home, Edmund Randolph told Washington that “Mr. Henry has quitted rather in discontent that the present assembly is not so pleasant as the last.”24

  With Henry’s departure, Antifederalists lost heart. Even in North Carolina, they realized that Henry’s struggle to limit federal government powers had come to an end. On November 21, 1789, North Carolina ratified the Constitution and became the twelfth state to join the Union. Rhode Island followed suit the following spring. In March 1790, Henry’s staunch ally Senator William Grayson died. Virginia’s moderate Federalist governor, General Henry (“Lighthorse Harry”) Lee, believed that appointing Henry to fill Grayson’s seat would reconcile some of the political differences between Federalists and Antifederalists and the personal differences between America’s two most revered patriots. Lee wrote to Washington, saying that Henry believed that “you consider him a factious and seditious character. . . . He seems to be deeply and sorely affected. It is very much to be regretted; for he is a man of positive virtue . . . and, were it not for his feelings above expressed, I verily believe he would be found among the most active supporters of your administration.”25

  Unaware, apparently, of the rumors of his enmity for Henry, Washington replied immediately, charging that “these reports are propagated with evil intentions to create personal differences. . . . With solemn truth . . . I can declare that I never expressed such sentiments of that gentleman . . . ” Though born in the Tidewater region of Virginia, Washington had chopped his way through the wilderness as a surveyor and soldier and knew western thinking better than most. His differences with Henry were purely philosophical: Washington believed that only strict law enforcement by a strong federal government could protect individual liberties from the ravages of anarchy; he believed the patchwork of independent sovereign states that Henry favored would provoke incessant European-style wars. Their political differences, however, had never eroded their mutual respect—nor had either ever questioned the other’s patriotism or love of country.

  “On the question of the Constitution,” Washington acknowledged to Lee, “Mr. Henry and myself, it is well known, have been of different opinions; but personally, I have always respected and esteemed him; nay, more, I have conceived myself under obligation to him for the friendly manner in which he transmitted to me some insidious writings that were sent to him in . . . 1777, with a view to embark him in the opposition that was forming against me.”26

  After showing Henry the Washington letter, Lee offered Henry Virginia’s Senate seat. Deeply moved by the president’s words, Henry waxed eloquent, saying he was “grateful . . . to know that some portion of regard remains for me amongst my countrymen; especially those . . . whose opinions I most value.” Calling Washington’s words “most flattering,” he said the fear that he had “forfeited the good-will of that personage” had pained him, and the knowledge that “there was no ground to believe I had incurred his censure gives very great pleasure.” Henry nonetheless declined Lee’s offer of a Senate seat, saying that “my present views are to spend my days in privacy.”27

  Henry went on to serve out his term in the legislature, but refused to stand for reelection in the fall of 1791 and would never again serve in public office. He had lost his battle against big government, and he knew it. He also needed to earn some money.

  “I am obliged to be very industrious and to take on me great fatigue to clear myself of debt,” he explained to daughter Betsey. “I hope to be able to accomplish this in a year or two if it pleases God to continue me in health and strength.”28

  Not surprisingly, with Henry at home full time, Dolly gave birth to her seventh and his thirteenth child—Nathaniel West, born on April 7, 1790. To his great distress, however, his sister Anne died, and Henry, in effect, adopted her son, his nephew, twelve-year-old John Henry Christian (“Johnny”), raising him as his own, sending him to Hampden-Sydney College at sixteen and then training him for the law. Other relatives took in Anne’s six orphaned daughters. Johnny had no sooner entered the Henry household, however, when death claimed grandson Edward Fontaine, one of Martha’s four children. Weeks later, Martha’s husband, John Fontaine, succumbed to malaria. All but broken emotionally, Martha and her three surviving children came to live with the Henrys. By late summer of 1792, the Henrys were harboring fifteen children, along with his grown daughter Martha.

  “What a weight of worldly concerns rest upon this old man’s shoulders,” his neighbor Richard Venable said in disbelief as he arrived at the Henrys’ home for dinner. “He supports it with strength, but nature must sink under the load ere long.”29 Within weeks, Henry received another crushing blow: his twenty-one-year-old son Edward—never robust—had fallen ill. Although he made a partial recovery and went to stay with his aunt and uncle, he relapsed within a few months and died at the age of twenty-three.

  At the time, Henry was doing his best to supervise his farms and rebuild his law practice—not an easy task for a man of fifty-six suffering the debilitating aftereffects of repeated bouts with malaria and intestinal infections. To reduce the amount of time away from home, he built an office on his property on “an avenue of fine black locusts—a walk in front of it . . . at some distance from his dwelling,” according to one of his grandsons.

  He spent one hour every day in this office in private devotion. His hour of prayer was the close of the day including sunset. He usually walked and meditated, when the weather permitted, in this shaded avenue. He rose early in the mornings of the spring, summer, and fall, before sunrise, while the air was cool and calm, reflecting clearly and distinctly the sounds of the lowing herds and singing birds.30

  After years away from home, his new office allowed him to spend more time treasuring his children, grandchildren and, of course, his wife. Although clients often came to see him at Pleasant Grove, his practice nonetheless required hours, and sometimes days, of travel in his bumpy gig, mile after mile, on unimproved roads across vast spaces of farmland and through dark forests, where brigands, runaway slaves, and renegade Indians often lurked to prey on passersby. His account books often showed little pecuniary return for his efforts—the ubiquitous “barrel of rum” from one client, £2.10 (about $100 today) from another, three shillings (£0.15, or about $15 today) from a third, and nothing from many others. His practice led him on a 200-mile circuit across five counties into the Blue Ridge Mountains and back, and, little by little, case by case, he restored his pre-Revolution reputation and climbed back to the pinnacle of his profession as America’s finest defense attorney.

  In rebuilding his practice, Henry naturally took on high-profile cases where possible, but he never disdained cases of lesser importance and almost always managed to turn them into causes célèbres that received regional, and sometimes national, attention—often for their humor as much as their legal significance. After a wagon driver ran over and killed a turkey, then drove away with the dead bird, the turkey’s owner sued both driver and passenger. Rather than serve time in jail, the wagon driver submitted to a whipping, but the passenger refused, saying he was innocent. “Gentleman of the jury,” Henry pleaded on behalf of the turkey farmer, “this man tells you he had nothing to do with the turkey. I dare say he didn’t . . .

  “ . . . until it was roasted!”

  Judge Roane said Henry had pronounced the word roasted “with such rotundity of voice and comicalness of manner and gesture that it threw everyone into a fit of laughter. . . . I have likened this faculty of Mr. Henry of operating upon the feelings, whether tragic or comic, by the mere tone of his voice . . . ”Yet he ranted not . . . He had a perfect command of a strong and musical voice, which he raised or lowered at pleasure and modulated so as to fall in with any given chord of the human heart. . . . Although his language was plain, and free from unusual or high-flown words, his ideas were remarkably bold, strong, and striking. By the joint effect of these two facul
ties . . . the power of his tone or voice and the grandness of his conceptions, he had a wonderful effect upon the feelings of his audience.31

  In one of Henry’s first cases after the Virginia ratification convention, John Hook, a wealthy Scottish storekeeper with Tory sympathies, sued a former Continental Army procurement officer for confiscating two of Hook’s steers to feed the troops during the 1781 Cornwallis invasion of Virginia. After the plaintiff’s lawyer had clearly proved his client’s case, Henry stood and stared at the floor, motionless, in prayer-like silence. He turned to the jury and, according to Judge Archibald Stuart, “painted the distresses of the American army, exposed almost naked to the rigor of a winter’s sky, marking the frozen ground over which they marched with the blood from their unshod feet.”32

  “Where was the man,” Henry asked, “who had an American heart in his bosom who would not have thrown open his fields, his barns, his cellars, the doors of his house, the portals of his breast to have received with open arms, the meanest soldier in the little band of famished patriots? Where is the man?”

  Henry turned to the defendant with an accusing finger and roared:

  “There he stands!”

  After a pause, Henry turned back to the jury: “But whether the heart of an American beats in his bosom, you, gentlemen, are to judge.”33

  Judge Stuart described the rest of Henry’s presentation:Henry then carried the jury, by the powers of his imagination, to the plains around Yorktown, the surrender of which had followed shortly after the act complained of. He depicted the surrender in the most noble and glowing colors of his eloquence. The audience saw before their eyes the humiliation and dejection of the British as they marched out of their trenches. They saw the triumph which lighted up every patriot face, and heard the shouts of victory and the cry of Washington and liberty, as it rang and echoed through the American ranks and reverberated from the hills and shores of the neighboring river.