Our Lives, Our Fortunes and Our Sacred Honor

by Richard R. Beeman

  After talking his way through his bar exam, Henry immediately set about building a successful law practice, traveling great distances to try cases in the counties of Goochland, Louisa, Hanover, Albemarle, Chesterfield and even distant Cumberland, where disputes among the rapidly growing and litigious Virginia Piedmont population were plentiful and the supply of lawyers was sparse. Henry appears to have been particularly successful in cases involving criminal law, for, it was said, the county justices who heard those cases, like his own father, were often themselves ignorant of the fine points of the law, allowing an ambitious and verbally adept lawyer like Patrick Henry to sway local juries unencumbered by legal guidance from the justices.

  By early 1765 Henry had developed a lucrative law practice, as well as a reputation for eloquence and quick-wittedness in the courtroom. In May of that year, William Johnson, the sitting burgess from Louisa County resigned his post to become county coroner. Because of Patrick Henry’s growing legal reputation and with Johnson’s endorsement, he became the county’s new burgess in a special election. Henry set off immediately for Williamsburg to take his seat in the House of Burgesses, and, within nine days of his arrival, on May 29, 1765, he began to carve out his place in history. On that day, the members of the Burgesses learned that Parliament had passed the Stamp Act. The legislature was getting ready to adjourn, and many of the older, more well-established members had already departed. It was at that moment that Patrick Henry presented a set of five resolutions asserting the principle that the free settlers of Virginia possessed all of the same rights as Englishmen living in England, and that among those rights was that taxes could be levied upon them only “by themselves or by persons chosen by themselves to represent them.” This assertion of the principle of “no taxation without representation” would become widely accepted by Americans throughout all thirteen colonies, but Henry, in his fifth resolution, was not content merely to assert that principle; he went a step further, announcing that any attempt to deny Americans that right had “a manifest tendency to destroy British, as well as American, freedom.”20

  The combative language of the fifth resolution, widely circulated in other colonies, would escalate the tone of the debate between British and American officials, but it was the language of Henry’s speech defending his resolutions that caught the attention of the burgesses that day. Warning his fellow burgesses not only of the danger of the Stamp Tax but also of the consequences suffered by past politicians who had attempted to trample the liberties of the people, Henry thundered: “Tarquin and Caesar each had his Brutus, Charles the First his Cromwell, and George the Third—” At that point his speech was interrupted by cries of “Treason! Treason!” by the Speaker of the House, John Robinson, and several other members of the assembly. According to one burgess, after the interruption, Henry paused dramatically, stared directly into the eyes of the Speaker and finished his sentence with: “—may profit by their example! If this be treason, make the most of it!”

  In fact, there are different versions of precisely what Henry said that day, as well as some uncertainty as to how many of Henry’s resolutions were eventually adopted by the House of Burgesses. But the precise facts of the event mattered little, for the full text of Henry’s five resolutions were circulated and widely adopted throughout the other American colonies, and Henry’s reputation as an orator of stunning abilities was immediately established. From that time forward, Henry moved quickly from being a newly elected backbencher to the position of the principal popular spokesman within Virginia for America’s constitutional liberties.

  By the summer of 1774, Patrick Henry had become a force to be reckoned with in his colony. He had also become the bane of the existence of Virginia’s royal governor, John Murray, Earl of Dunmore. When the Virginia Convention balloted for its seven delegates to represent them at the upcoming Continental Congress, only Peyton Randolph, George Washington and Richard Henry Lee, all of them far wealthier and more experienced than Henry, received more votes. Although later in life Thomas Jefferson would unfairly characterize Henry as “all tongue, without head or heart,” it was clear that Henry had established himself as a major player in Virginia politics. And it was no doubt not lost on Henry’s fellow Virginians that he was the only delegate to the Congress residing in the rapidly growing backcountry rather than from the well-established, tradition-bound Tidewater and Northern Neck sections of the colony.21

  Henry’s rhetoric on that second day of the Congress’s proceedings—his assertion that Americans had already entered into a Lockean state of nature, a state of society free of laws and institutions of government, and his embracing of a national, rather than a provincial, identity—suggests a man prepared not only to dissolve the bonds attaching the colonies to the mother country but also to subordinate the distinct character of each of the colonies to a single American entity. In fact, though, Henry’s proclamation was entirely consistent with both his vigorous defense of Virginia’s interests and liberties against British encroachments and his subsequent ardent defense of Virginia’s sovereign power against the threat of “consolidation” under a newly constituted federal government.

  The issue that provoked Henry’s outburst was the preference of many delegates that votes in the Congress be apportioned equally among each of the colonies. Mindful that he was representing the oldest and most populous colony in America, Henry believed that “it will be a great injustice if a little Colony should have the same weight in the councils of America as a great one.” Henry wished to see each colony’s vote in the Congress weighted according to its population—a view obviously at odds with the interests of the smaller colonies and, indeed, one that would present a stumbling block to a durable union for many years to come.

  However much Henry’s proposal may have appealed to some delegates from the larger colonies, there was another aspect to it that alarmed delegates from a variety of colonies, regardless of their size. John Jay of New York, in answer to Henry’s soaring rhetoric, professed himself to be nowhere near ready to endorse the conclusion that “Government is dissolved” or that the colonies were prepared to leap into that dangerous state of nature. Jay cautioned: “I cannot think that all Government is at an End. The Measure of Arbitrary Power is not full, and I think it must run over before We undertake to frame a new Constitution.”22

  Most of the delegates shared Jay’s hope that the “measure of arbitrary power” would not run over. The delegates had gathered, after all, not to foment revolution but rather, by striking the delicate balance between resoluteness and conciliation, to prevent such an event from occurring. The challenge before the Congress, Jay believed, was to “correct the faults” in England’s otherwise admirable constitution, not to create a new American system.23

  Jay would be among those in the Congress who would consistently attempt to moderate the impulses of the more radical delegates from New England and Virginia. Jay’s words and deeds at the Congress commanded attention, for he brought with him to Philadelphia a distinguished résumé. Jay is primarily remembered as one of post-revolutionary America’s most important diplomats and as one of the authors of The Federalist Papers in 1787–1788, but he had risen to the pinnacle of New York politics well before those events. He was a member of an exceptionally prosperous family. His father, Peter Jay, was of French Huguenot descent and, by the time of John’s birth in 1745, had become one of the colony’s richest and most influential merchants. His mother, Mary, was a daughter of a fabulously wealthy family of Dutch descent, the Van Cortlandts, owners of a stately manor occupying some 86,000 acres on the Hudson River. John, educated initially by private tutors, was perceived to be “a youth remarkably sedate,” with a decidedly bookish tendency. He graduated from King’s College in 1764 and then studied for the bar in the busy New York City law offices of Benjamin Kissan. The senior clerk in that office, Lindley Murray, described Jay as “remarkable for strong reasoning powers, comprehensive views, indefatigable application, and uncommon firmness of mind”—al
l traits that would mark his behavior and personality for the rest of his life.

  In 1768, Jay began his own law practice and, in April of 1774, married Sarah Van Brugh Livingston, the daughter of William Livingston, a member of one of the most socially prominent families in New York and later to become the governor of New Jersey. In sum, John Jay enjoyed nearly all of the advantages—by birth, education and marriage—that an aspiring lawyer and politician could hope for.

  As a young man Jay presented himself as an individual of effortless, if perhaps somewhat vain, aristocratic grace. He was tall and slender, with fine features and a sharp, straight nose, and his physical appearance was thoroughly in keeping with some of his behavior—self-confident and perhaps a bit self-satisfied—a man who felt quite comfortable in the knowledge that he possessed superior social connections, superior intelligence and, no doubt, superior judgment. Occasionally that pride and self-confidence would lead to excess. Befitting a young man of his social station, Jay was a member of the New York Dancing Assembly and, by 1772, became one of its managers. When another young man, Robert Randall, applied for membership in 1773, Jay recommended his rejection, judging him to be of inferior social standing. Randall objected, accusing Jay of a “stab” at his honor. Jay considered Randall’s objection sufficiently insulting that he offered to engage him in a duel to defend his own honor, a challenge that Randall apparently declined.24

  Beginning in 1773, Jay accepted the first of dozens of appointments to public office—as secretary of a royal commission for settling a boundary dispute between New York and New Jersey. One of the remarkable facts of Jay’s political career, which included dozens of posts of high distinction both at the state and national level (including service as the nation’s first chief justice of the Supreme Court from 1789 to 1795), was that he rarely had to present himself to the populace for election to any of those offices. Most of the offices he held were either appointive or elected by the legislature, not requiring him to strive for his place in public life. Nor, indeed, would John Jay ever have wished to do so, for throughout his career it was difficult for him to hide his distaste for currying popular favor.25

  In the aftermath of the 1773 passage of the Tea Act, as the political temper of the colony of New York heated up, Jay was among those who counseled deliberateness and moderation in confronting this new British challenge. Along with this fellow congressional delegate James Duane, he had been successful in persuading New York’s Committee of Fifty-one not only to thwart the effort to adopt Sam Adams’s call for all of the colonies to adopt a “Solemn League and Covenant” pledging to boycott all British goods, but also to stack New York’s delegation to the Continental Congress with “men of moderation” like himself.

  As part of the price for their selection, the New York delegates had grudgingly lent their support to an open letter advocating a non-importation agreement as an “efficacious means to procure a redress of our grievances,” but they left for Philadelphia with no specific instructions from the colony’s legislature binding them in their actions once the Congress got under way. Free from instructions requiring that he support a radical course of action in opposing the Coercive Acts, Jay had arrived in Philadelphia hoping that reason and deliberation, rather than passion, would prevail in the Congress.26

  As the debate provoked by Henry on that second day continued, John Rutledge joined Jay in distancing himself from Henry’s declamation. The aristocratic and imposingly self-confident South Carolinian was noncommittal on what steps he thought should be taken to counter the Coercive Acts, but responding to Henry’s remarks, he gave the assembled delegates a stern lecture about the limits of their authority. The delegates had gathered in Philadelphia, he observed, as agents of their legislatures empowered merely to discuss the present crisis; surely, they had “no legal Authority” to take the sort of sweeping steps implied by Henry’s speech.27

  Rutledge’s South Carolina colleague, Thomas Lynch, was less troubled by Patrick Henry’s boldness, but he suggested a modification of the Virginian’s proposal. The proper object of representation, Lynch argued, was not population alone but the combination of population and property. The sort of property that he had in mind, of course, was slave property, and thus for the first but hardly the last time, discussions in the Congress about how to protect American liberty were infused with attempts by some delegates to find ways to provide protections for slavery. That issue, along with the persistent division of interests between large, populous states and the smaller states over the question of proportional versus equal representation, would stand in the way of a durable and harmonious union for many years to come.28

  Predictably, the delegates from the smaller colonies disliked Henry’s proposal. Samuel Ward of Rhode Island, the colony that along with Delaware had the most to lose if a scheme of proportional representation were adopted, immediately objected. He argued that the common cause would require an equal sacrifice from all of the colonies, large and small, and that if the smaller colonies were prepared to make that sacrifice, they should be given equal weight in the proceedings. He also noted, slyly, that the colony of Virginia, in apportioning representation in its provincial legislature, gave each county, regardless of its population, equal weight of two representatives each.29

  As the debate continued, it became clear that Patrick Henry had moved too far, too fast. His assertion that “Government is dissolved” was, in the minds of many, not merely premature but at odds with the peace and harmony that most delegates most ardently desired. And his formula for proportional representation, much as it may have made sense in the context of an “American” congress based on the will of the people of America at large, was a non-starter in a congress whose representatives conceived of themselves as mere agents of their colonial legislatures, each of which were themselves representative of widely diverse populations. Quite simply, Henry’s proposal was calculated to foment disunity, rather than consensus, among the assembled delegates.

  John Adams, though he knew that the interests of Massachusetts would be better served by a system of proportional representation, recognized that it was more important to keep an eye on the main objective of the Congress—a consensus on how best to resist and reverse British policies—than to fight a battle over representation. He pointed out to the delegates that at that moment the individual colonies lacked any reliable means of determining the precise size of their populations, and he concluded that to fight the battle over representation without that knowledge “will lead us into such a field of Controversy as will greatly perplex us.” The other Massachusetts delegates, who had already agreed on a strategy of presenting themselves as cooperative and reasonable in order to dispel the prevalent fear that they were a bunch of wild-eyed radicals interested only in their own well-being, joined Adams in opposing Henry’s proposal.30

  But at least a few of the Virginians weren’t willing to give up. Henry’s colleague Benjamin Harrison, perhaps responding to the condescension with which John Rutledge had dismissed Henry’s proposal, complained about the “disrespect” shown his “countryman.” But the tide was turning. Christopher Gadsden and Richard Henry Lee—both sympathetic to the radical sentiments of Henry and the New Englanders—nevertheless agreed with John Adams on the impracticality of a system of proportional representation before accurate calculations of the colonies’ population could be made. When the colonial delegations finally, and unanimously, agreed to give each state equal weight in voting in the Congress, they took care, probably at Patrick Henry’s insistence, to emphasize that the rationale for the decision was the absence of a reliable census that would enable them to determine accurately the population of each colony. Charles Thomson, no doubt unhappy with the decision, made a formal notation in his congressional journal that the decision for equal representation was not intended to signify that the Congress “had been drawn into a precedent.”31

  In spite of the insistence of a few delegates such as Patrick Henry for a system of proportional represent
ation, it is in fact likely that most of the colonial legislatures expected a formula of equal representation when they elected their delegates to the Congress. The size of the various colonial delegations varied enormously, from New York’s nine delegates to North Carolina’s three to Rhode Island’s two. The variations had little to do with population (at that time North Carolina’s population of approximately 250,000 inhabitants was slightly larger than that of New York), and most likely had to do with the generosity (or parsimony) of colonial legislatures with respect to paying the expenses of their delegates. As things turned out, the decision for equal representation did set a precedent that would last for the full life of the Continental Congress until it was replaced by the Federal Congress under the new United States Constitution in 1789. The Continental Congress would remain just that, a “congress” composed of representatives from autonomous legislative bodies, with the individual identities of delegates being less important than the principle that each delegation, as a collectivity, deserved equal weight in the deliberations of the body. The insistence of delegates from the smaller states that each delegation be given equal weight was of course done in part out of self-interest and self-defense, but, at least prior to independence, it was historically understandable given prevailing understandings of the very purpose of a congress. That insistence on equal representation would, however, prove to be a major impediment to effective legislation in the Congress once independence was declared.