Patrick Henry: The lawyer who fought for liberty, not just a slogan

250 years ago, on the cusp of the American Revolutionary War, Patrick Henry famously declared, "Give me liberty, or give me death!" At the time, Henry's dramatic words represented the American colonies' call to arms to fight for their freedom and independence from British rule. But after nearly two and a half centuries since winning that independence, Henry's words still hold significance today, especially if you consider what motivated Henry to utter that famous phrase.

Often overlooked is the fact that Henry was a successful lawyer, and his demand for "liberty" reflected his strong belief in local self-determination and a deep aversion to governance by a centralized authority with concentrated power. Pointedly, Henry demonstrated throughout his life his belief in the judiciary's essential role in balancing local laws against a distant, but powerful monarchy.

One of Henry's first cases became known as the Parson's Cause. In colonial Virginia, the ministers, or parsons, of the Church of England were paid their annual salaries in tobacco, which was typically sold at two cents per pound. But a drought created a tobacco shortage, causing the price of tobacco to surge to six cents. Attempting to avoid unjust enrichment, the colonial legislature passed the Two-Penny Act in 1758, which set the value of contracts payable in tobacco at the normal market price. The displeased parsons appealed to London, and the king's council declared the local law void. Thereafter, a parson filed suit in a local colonial court to obtain his full back pay at the rate of six cents.

Henry represented the defendants and argued to the jury that Virginia's act "had every characteristic of a good law" and declared "that a King, by annulling or disallowing Laws of this salutary nature, from being the father of his people, degenerates into a Tyrant, and forfeits all right to his subjects' obedience." He further implied that the parsons should be punished for their greed and lack of respect for the laws of the colonial community. The jury agreed with Henry and awarded the parson just one penny in damages.

Years later while serving as a member of Virginia's colonial legislature, Henry would again recognize the importance of the local courts in serving as a check against British rule. In 1773, the British-appointed governor of colonial Virginia sent British soldiers to arrest a group of local counterfeiters. But instead of taking the suspects to the local colonial court for a preliminary examination of their guilt, as required by colonial law, the soldiers took them directly to the governor's high court.

In response, Henry and his fellow legislators drafted a resolution thanking the governor for capturing the suspects but recognizing that the nature of their arrest was "nevertheless different from the usual mode" of criminal procedure. The resolution emphasized the role of the local courts in enforcing the duty to not only punish the guilty but also "to be as attentive to the safety of the innocent" and further expressed concern "that the proceedings in this case may not in future be drawn into consequence or example."

This incident, in conjunction with another matter in Rhode Island, generated unease among the colonies of the prospect of Americans being sent to England for trial without the protections afforded by local colonial laws. To avoid this scenario, Henry helped create a committee of correspondence to communicate with leaders in other colonies to stay appraised of, and prevent, British efforts to try Americans abroad.

After the end of British rule, Henry held steadfast in his belief in the importance of local self-government by opposing the ratification of the proposed United States Constitution. He expressed concern regarding the proposed power of the new federal government because it contained no bill of rights to guarantee liberties, such as freedom of speech, religion, and the press. In a 1788 speech before the Virginia Convention considering the ratification of the United States Constitution, Henry warned that the constitution's supremacy clause would further jeopardize individual liberties protected by the state legislatures by compelling judges to enforce federal laws over those of the states. "The Judiciary," he explained, "are the sole protection against a tyrannical execution of laws. But if by this system we lose our Judiciary, and they cannot help us, we must sit down quietly, and be oppressed."

Although Henry ultimately prevailed regarding the bill of rights and his concerns over federal supremacy were perhaps overstated, his vision of the essential role of a strong and independent judiciary as a guarantor of liberty is undebatable. Liberty cannot be safeguarded solely through the political branches, although they play an essential role. It falls to the judiciary to provide a forum for claims based on our founding documents and principles that would otherwise go unheard. Henry's eloquent words and the legacy of his legal pursuits endure as a reminder of the lasting importance of the judiciary, as an independent and coequal branch of government, in safeguarding our country's tradition of liberty. And to this day, consistent with Henry's vision, our judiciary remains vigilant in maintaining that role.

Patricia Guerrero is Chief Justice of California.