"Opinion Concerning the Will of Patrick Henry"

This document is a draft of an opinion in the case of Aylett v. Henry's Executors, in the handwriting of George Wythe, regarding the will of Patrick Henry. The manuscript is incomplete, consisting of twelve pages on three leaves. Pages one and two of the document are missing.

The manuscript was found in Wythe's personal copy of his Decisions of Cases in Virginia, by the High Court of Chancery, published in 1795 in Richmond, Virginia. Wythe's copy was donated to the law library at the University of Virginia in 1933, by Jefferson Randolph Kean (1860 – 1950), grandson of Thomas Jefferson Randolph (1792 – 1875), the grandson of Thomas Jefferson, who inherited the volume upon Wythe's death in 1806. A note 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 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." 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., 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 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. 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, for which i was obliged to m' Warden. G,' W'" A little mathematics is also introduced into the same decree.

Opinion Concerning the Will of Patrick Henry (incomplete)

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[Missing]

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may intermarrie[sic], we intermarrie that thou mayest bestow. For what is an agreement a contract. but an union. aconcurrene[sic]. of the parties wills to do something? The treatie[sic] 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[sic], in an abruption. Yet thereby the former was not discharged from his en-gagement to give the portion _^^{in tenaea} which engage-ment[sic] he is _^^not proved, if he had power, to have re-drafted, and for the fulfilment of which he thought the suiters to his daughters ought to depend on his good faith, as a sufficient secur-itie[sic]. He seemed, by his last letter to the guar-dian[sic], not to have mediated abrogation of his agreement, but, only to have been piqued

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at the suspicion, that, in a transaction with him on such an occasion, the caution of people traffick-ing[sic], ‘bartering,’ was necessarie to prevent _^^a tergi-versation[sic].

If Patrick Henry provision for his daugh-ter[sic] Martha Fontaine were the measure of por-tions[sic] which he obliged _^^himself to give to her sisters, the component parts of that standard are these items in the statements contained in the commission-ers[sic] report:

1, four hundred and thirteen pounds, ad-vances[sic] about the time of her marriage, _^^{the amount of} which seems admite[sic]d;

2, two hundred pounds for the tract of Land in Kentucky sold to general Lawsen[sic] by her husband John Fontaine, to whom her father appeareth[sic] 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 san 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 pre-sents[sic] in requital of her services;

4, the residue, given to her, by her father, of her _^^defunct of brother Edward Henrys real and personal estate, incumbered[sic] with demands against if, of which are satisfied _^^all except one, yet a lis sub judice[sic] before another tribunal. Patrick [page ripped off] ve her the land of her brother [page ripped] hundred pounds [page ripped] 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 advan-es[sic] to Martha Fontaine, the’ amount of sales of those parcels, and not _^^{the fathers estimate of} th’ intire[sic] tract should be counted. Can this be correct? If she had _^^{elected to} keep, instead of sel-ling[sic], the land, and commissioners, appointed to value it, had reported _^^{the value} in Patrick Henrys words, the plaintiffs could not have compelled an actu-al[sic] experiment _^^{by sales of parcels and on credit} for proving the supposed argument. ration If to sell for less than a thousand pounds had become by circumstances convenient or by exi-gencie[sic] necessarie[sic] _^^{or if the land had been in truth not worth so much} the plaintiffs undoubtedlie[sic] would have resorted to th’eo’ [page ripped] was a gift, not [page ripped]

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ing an intirelie[sic] different remuneration, name-lie th’ effusions of

‘a gratefull[sic] 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 whatsoe-ver[sic], and, in part discharge _^^{of part} thereof, he had conveied[sic] to her, and she had accepted, the land, instead of one thousand pounds, neither

of

---

* Paraphrase by Milton of 'commode autem, qui-'cumque diocit: 'pecuniam qui habeat, non red-“didissee; qui reddiderit, non habese; gratiam "autem et qui retulerit, habere; et qui habeat, "retulisse." Cic' de offic', lib'2, cap'20. One, who _^^{ever he was} said well 'a debitor before paiment, may 'may have the money due. and have it not af-ter paiment but he, who is grateful, both hath what he paieth and paieth what he hath. The same sentiment occurs in the passage.

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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

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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 daugh-ter, 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 as-cribed in the bill to Patrick Henry repeatedlie, so that to suppose Martha Fontaine, who had been wedded and forisfamiliated, and whose hus-band 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 Foxlney

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‘fortune,’ probablie meaned the same that he meaned by the words before explaned to pur-port an agreement to give to Elizabeth one thou-sand pounds, and so much more as _^^{that the sum} would e-qual 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 condemn-ing the custom, prevalent in England, of favour-ing the primigenious filial right. Here is remark-able, that he who testifies concerning this mat-ter, and was one of the persons in the dialogue evidentlie misunderstood the other; whence the ~ narrative of this arch-witness, without attribute-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 _^ⁱⁿ Patrick Henry was alluding to the distinction, not be-tween daughters or 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 vul-gus _^^the faexcivitatum;

3, By the contrast between Patrick Henry and Philip Aylett the former was not obliged to make his daughter Martha Fontaine e-qual, 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 equa-litie, before a court of com_^^mon law? What consider-ation, which is essential to perfection of a legal obligation _^^{uy 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 absurd-ditie, 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 derive in 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 coexist. If, from the contract, ~ Martha could derive no right to an equal portion with .

See also

• Life of Patrick Henry
• Patrick Henry Correspondence with George Wythe