"Opinion Concerning the Will of Patrick Henry"

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A manuscript was found in George Wythe's personal copy of his Decisions of Cases in Virginia, by the High Court of Chancery, published in 1795.[1] Wythe's copy of his Reports was donated to the law library at the University of Virginia in 1933, by Jefferson Randolph Kean (1860 – 1950), a great-great-grandson of Thomas Jefferson, who inherited the volume upon Wythe's death in 1806. A note from Kean was provided with book's donation:

This manuscript was written by Chancellor Wythe, Signer of the Declaration of Independence, his unusual handwriting being readily recognized by those who have ever seen it. It is apparently part of a legal opinion on the will of Patrick Henry, and was found by me in the back of the Chancellor's personal copy of his Decisions which was given to my father R. G. W. Kean by Col. Thos. Jefferson Randolph of Edgehill, and came to him undoubtedly from his grandfather President Thomas Jefferson to whom the Chancellor was much devoted. — Jefferson Randolph Kean

The manuscript is a draft of an opinion in the case of Aylett v. Henry's Executors in Wythe's handwriting, regarding the last will and testament of Patrick Henry. The manuscript is incomplete, consisting of twelve pages on three leaves. Pages one and two of the draft are missing, as well as at least one page following page twelve.

The original decree was mentioned by B.B. Minor in a "Memoir of the Author" prefacing the second edition of Wythe's Reports in 1852, in a footnote regarding Wythe's familiarity with "philosophers, historians, and even dramatic poets of antiquity."[2] The footnote gives us a date for the opinion of May, 1804, and quotes some text missing from this draft:

‡ An instance of this occurs in the decree rendered in May, 1804, expounding the will of Patrick Henry. After quoting the parable in St. Mathew, ch. xx.,[3] he says "the land was a gift, not naturalie nor moralie to be retributed or countervaled by price, by pounds or dollars, and their fractional parts, but meriting an intirelie different remuneration, namelie, th' effusions of 'a gratefull mind, Which owing owes not, but still pays, At once indebted and discharged;'" Then he adds this note. "Paraphrase, by Milton[4] of 'commode autem, quicumque dixit; pecuniam qui habeat, non reddidisse; qui reddiderit, non habere; gratiam autem et qui retulerit, habere; et qui habeat retulisse.' Cic' de offic' lib' 2, cap' 20.[5] One, whoever he was, said well, 'a debitor, before paiment, may have the money due, and have it not after paiment; but he who is grateful, both hath what he paieth, and paieth what he hath.' The same sentiment occurs in this passage. 'Dissimilis est pecuniæ debitio et gratiæ, nam qui pecuniam dissolvit, statim non habet id, quod redidit: qui autem debet, æs retinet alienum gratiam autem et qui refert habet; et qui habet, in eo ipso quod habet, refert.' Cic' pro Cn' Plancio, c' 19,[6] for which i was obliged to m' Warden.[7] G,' W'" A little mathematics is also introduced into the same decree.

Opinion Concerning the Will of Patrick Henry (incomplete)

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may intermarrie, we intermarrie that thou mayest bestow. For what is an agreement a contract, but an union, a concurrence of the parties wills to do something? The treatie between the father and the guardian, as to themselves indeed, did not terminate in an agreement, obliging them to do anything to one another, but, on the contrarie, in an abruption. Yet thereby the former was not discharged from his engagement to give the portion ^intended which engagement he is ^not proved, if he had power, to have retracted, and for the fulfilment of which he thought the suiters to his daughters ought to depend on his good faith, as a sufficient securitie. He seemed, by his last letter to the guardian, not to have mediated abrogation of his agreement, but, only to have been piqued

at

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at the suspicion, that, in a transaction with him, on such an occasion, the caution of people trafficking, 'bartering,' was necessarie to prevent ^a tergiversation.[8]

If Patrick Henrys provision for his daughter Martha Fontaine were the measure of portions which he obliged ^himself to give to her sisters, the component parts of that standard are these items in the statements contained in the commissioners report:

1, four hundred and thirteen pounds, advances about the time of her marriage, ^the amount of which seems admited [sic];

2, two hundred pounds for the tract of Land in Kentucky sold to general Lawsen by her husband John Fontaine, to whom her father appeareth by the writing transcribed into one

of

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of her examinations to have given the land, and who is not proved to have been obliged, as was supposed, to compensate for it his son Patrick Henry Fontaine;

3, twenty three pounds and ten shillings, the value of a mare and some furniture, not proved, although believed, to have been presents in requital of her services;

4, the residue, given to her, by her father, of her ^defunct brother Edward Henrys real and personal estate, incumbered with demands against it, of which are satisfied ^all except one, yet a lis sub judice[9] before another tribunal. Patrick
[page torn]ve her the land of her brother
[page torn] hundred pounds
[page torn]it divi-

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be produced. Accordingly from sales of it in parcels, most of them on credit, more was produced. The plaintiffs insist that in th’ enumeration of advances to Martha Fontaine, th' amount of sales of those parcels, and not ^the fathers estimate of th’ intire tract should be counted. Can this be correct? If she had ^elected to keep, instead of selling, the land, and commissioners, appointed to value it, had reported ^the value in Patrick Henrys words, the plaintiffs could not have compelled an actual experiment ^by sales of parcels and on credit for proving the supposed argumentation. If to sell for less than a thousand pounds had become by circumstances convenient or by exigencie necessarie, ^or if the land had been in truth not worth so much the plaintiffs undoubtedlie would have resorted to th’ [page ripped] for the tract of was a gift, not [page ripped] sold to general Lawson by [?] John Fontaine, to whom, her father appeareth by the writing transcribed into one

of

[The pages are numbered consecutively, but this text appears in the 1852 reports before page 7 in this draft: ..."the land was a gift, not naturalie nor moralie to be retributed or countervaled by price, by pounds or dollars, and their fractional parts, but meriting"...]

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ing an intirelie different remuneration, namelie th' effusions of

'a gratefull mind

Which owing owes not, but still pays,
At once indebted and discharged'*

If Patrick Henry had, by contract with his daughter Martha Fontaine, had obliged himself to give to her any portion whatsoever, and, in part discharge ^of part thereof, he had conveied to her, and she had accepted, the land, instead of one thousand pounds, neither

of

* Paraphrase by Milton of 'commode autem, quicumque diocit: "pecuniam qui habeat, non reddidissee; qui reddiderit, non habere; gratiam autem et qui retulerit, habere; et qui habeat, retulisse." Cic' de offic', lib'2, cap'20.[5] One, who ^ever he was said well 'a debitor before paiment, may may have the money due, and have it not after paiment; but he, who is grateful, both hath what he paieth and paieth what he hath. The same sentiment occurs in the passage: [page torn]

[Text appearing in the 1852 Reports: ...'Dissimilis est pecuniæ debitio et gratiæ, nam qui pecuniam dissolvit, statim non habet id, quod redidit: qui autem debet, æs retinet alienum gratiam autem et qui refert habet; et qui habet, in eo ipso quod habet, refert.' Cic' pro Cn' Plancio, c' 19,[6] for which i was obliged to m' Warden.][7]

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of them could have ^augmented or diminished the credit if retracted if the value of the land had been more or less than 1000 pounds. The plaintiff Philip Aylett, if up-on the slaves sent to him a value had been put by Patrick Henry, must have returned them, as he returned the deed for the Green-sea-land, or have allowed credit for that value: and

5 her, legacie Martha Fontaines, legacie by the codicil. But the provision for her is not the measure of portions which Patrick Henry obliged himself to give to her sisters. He did not, in ^explicite terms, oblige himself to give to them so much as he had given or should give to her. She ^was not a party to the contract with them; not designed ^in it by her proper name, no otherwise

than

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than by what grammarians call an appellative noun; not involved in the cause which moved him to form the contract most probablie not contemplated in it. She was indeed a daughter, but not a daughter intended by him, or understood by the witnesses; for,

1, Portions, which a father proposeth ^or agreeth to give to daughters, can allure ^only wooers of ^those daughters, unmarried, the object ^ascribed repeatedlie an object ascribed in the bill to Patrick Henry repeatedlie, so that to suppose Martha Fontaine, who had been wedded and forisfamiliated, and whose husband was living, to have been one of the daughters intended to derive benefit from such agreement is preposterous;

2, Patrick Henry, when he said, 'he would would make all his daughters equal in point of

'fortune'

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'fortune,' probablie meaned the same that he meaned by the words before explaned to purport an agreement to give to Elizabeth one thousand pounds, and so much more as ^that the sum would equal what he should give to his other daug^hters probablie; because he was then speaking of the future, what he WOULD GIVE, not of the past, what he HAD GIVEN, thirteen or fourteen years before, to one of his daughters; and this, not in language used by parties forming stipulations, but, in language generalie condemning the custom, prevalent in England, of favouring the primigenious filial right. Here is remarkable, that he who testifies concerning this matter, and was one of the persons in the dialogue evidentlie misunderstood the other; whence the narrative of this arch-witness, without attribut-

ing

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-ting to him a designed misrepresentation, of which the slightest suspicion is not entertained should be taken in the sense, in which its parts will be concordant. and ^ [unreadable] Patrick Henry was alluding to the distinction, not between daughters, for such a distinction in the provisions for them prevaleth not in England or elsewhere, but, between sons, aggrandizing with opulence and dignifying with titles the oldest, that he may be ranked with the ^proceres, the primores populi, and degrading his brothers to the class of ^th' ignobile vulgus, ^the faex civitatum;

3, By the contrast between Patrick Henry and Philip Aylett, the former was not obliged to make his daughter Martha Fontaine equal, in point of fortune, with any one of her sisters. If the portion advanced to her ^had been less,

could

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could she have asserted her demand of an equalitie, before a court of com^mon law? What consideration, which is essential to perfection of a legal obligation ^by contract could have been invented? could she have pretended, that, by virtue of a contract between Patrick Henry and Philip Aylett, not between Patrick Henry and herself, an action accrued to HER to demand a portion equal to that which was given to her sister Elizabeth? To refute such a demand its prominent absurdditie, without other argument, is sufficient. If from the contract Martha could derive no Martha Fontaine could have derived no benefit right to an equal portion with Elizabeth, Elizabeth from the contract with the husband of Elizabeth could der??ht to an equal portion with Martha the plaintiffs can derive no benefits from that part.

The rights were correlative. If one did not, of the contract which is supposed to comprehend the other

Martha could not exist. If, from the contract, Martha could derive no right to an equal portion

with

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[Missing]

See also

References

  1. ↑ George Wythe, Decisions of Cases in Virginia by the High Court of Chancery: With Remarks Upon Decrees by the Court of Appeals, Reversing Some of Those Decisions (Richmond, VA: Thomas Nicolson, 1795). Albert and Shirley Small Special Collections Library, University of Virginia, call number A 1795 .V56.
  2. ↑ B.B. Minor, "Memoir of the Author," in Decisions of Cases in Virginia, by the High Court Chancery, with Remarks upon Decrees by the Court of Appeals, Reversing Some of Those Decisions, by George Wythe, ed. B.B. Minor (Richmond, VA: J.W. Randolph, 1852), xxv-xxvi.
  3. ↑ Matt. 20:1-15 tells of a vineyard owner who pays his workers the same fee whether they worked one hour or all day.
  4. ↑ 'And understood not that a grateful mind / By owing owes not, but still pays, at once / Indebted and discharged.' Paradise Lost, Book IV, 55-57.
  5. ↑ 5.0 5.1 "As someone has happily said, 'A man has not repaid money, if he still has it; if he has repaid it, he has ceased to have it. But a man still has the sense of favour, if he has returned the favour; and if he has the sense of the favour, he has repaid it.'" Cic. Off. 2.69.
  6. ↑ 6.0 6.1 "Although, being in debt for money and for kindness are two different things. For the man who pays money, the moment he does so, no longer has that which he has paid, and he who owes is in debt." Cic. Planc. 28.
  7. ↑ 7.0 7.1 Undoubtedly Mr. John Warden, Esq.: a respected attorney in Richmond, Virginia, born in Scotland in 1742. Warden was Wythe's neighbor: "On the square west of the Chancellor's, and at the corner of Franklin and Fifth streets, lived John Warden, a Scotchman—one of the best read and worst featured, most good tempered and most ill formed; but among the most well informed members of the Richmond bar—his mind and body were a bundle of contrasts. His ugliness was so attractive and so strongly marked, that the boys used to amuse themselves in drawing likenesses of his short thick figure, crooked legs and satyr-like features on the walls of the Court room. But his talents, wit and humor compensated for the externals, in which nature had been so niggardly." Samuel Mordecai, Richmond in By-Gone Days: Being Reminiscences of an Old Citizen (Richmond, VA: George M. West, 1856), 81.
  8. ↑ Tergiversation: falsification by means of vague or ambiguous language; equivocation.
  9. ↑ A case not yet decided or still in court. William G. Webster and Chauncey Goodrich, An Explanatory and Pronouncing Dictionary of the English Language, with Synonyms: Abridged from the American Dictionary of Noah Webster (New York: Mason Brothers, 1856), 451.

Further reading

External links

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