Thomas Jefferson, The Blair Divorce and The Declaration of Independence

In 1772, 27-year-old Thomas Jefferson was preparing to argue a claim before the General Assembly of Albermerle County, Virginia. Jefferson's client Dr. James Blair, had brought suit for divorce against his wife, Kitty Blair. If Jefferson were successful, he would have obtained the first divorce in the history of Virginia. But the Blair divorce was more than a potential watershed in American family law. It provided Jefferson an opportunity to formulate concepts and arguments that would ultimately find their way into the Declaration of Independence.

Jefferson's Philosophical Roots

Thomas Jefferson was truly a product of the "Age of Enlightenment," the term that is commonly applied to the Eighteenth Century. It was a period during which established concepts and philosophies were being questioned throughout Europe as well as in the Colonies. Inspired by the writings of Bacon, Newton and Locke, the philosophers and thinkers of the Enlightenment contended that man had natural rights that were bestowed by God, not the King. In America the spirit of the Enlightenment was initially championed by Benjamin Franklin, who epitomized the pursuit of knowledge and the freedom of thought that were cherished values of the era.1

The principles of the Enlightenment also found fertile ground in the complex mind of Thomas Jefferson, who was well schooled in the writings of philosophers of all ages. Jefferson resonated to the expressions of Enlightenment writers, such as Pufendorf, Motensquieu and, particularly John Locke. As was the case with most educated freeholders in Virginia, Jefferson understood,

"...what made up the constitutional 'rights of Englishmen,' what were the 'natural laws' - what had been considered right and wrong since it had been established by 'nature' - and what were their 'natural rights,' their belief that, from a state of nature, man had entered into society by a contract and therefore possessed rights that neither he himself nor his posterity could lose or dispose of...[s]overeignty, they had come to believe, resided in the people..."2

But Jefferson's philosophical development took him beyond the views of his contemporaries. In his early twenties, Jefferson had adopted the Enlightenment conviction that the mind's ability to reason was the true source of knowledge. He rejected metaphysics and previously accepted forms of speculation, which led him to question religion and even the accuracy of the Bible.3

Jefferson's Law Practice

By the time he was 27 years old, Jefferson had become one of the most prominent attorneys in Virginia. After studying law under his mentor, George Wyeth, Jefferson initially made his name in the legal community by representing people claiming lands in the western frontier of the state. But instead of limiting his practice to that one area, Jefferson handled a wide variety of civil and criminal matters, several of which had considerable social and political significance.
In 1769 Jefferson represented Samuel Howell, a 28-year-old mulatto slave, who was seeking to be declared a free man. Howell's grandmother was a white woman who had a sexual relationship with a slave, resulting in the birth of his mother. Under Virginia law, which adopted in whole the laws of Great Britain, a mulatto could obtain his freedom only upon his 31st birthday. Moreover, the offspring of such a person, and their offspring as well, were also subjected to this rule. As a result, Howell, who appeared white, would have had to remain a slave for another three years, simply because his grandmother had a sexual relationship with a black man.

Jefferson had to plead his case before judges of the Albermerle County General Court. These were non-lawyers who held the common abhorrence of interracial sexual relations and believed that any offspring of such a relationship could only be the result of rape.

Jefferson initially argued that the 1705 statute bound only the child of the interracial relationship to servitude, but not grandchildren. The court quickly rejected that technical theory by holding that the law also applied if the child (Howell's mother) was a slave when the grandchild was born.

Instead of focusing on the interpretation of the statute, Jefferson's second argument attacked its philosophical underpinnings with words that were pure Enlightenment dogma.

"Under the law of nature, all men are born free. Everyone comes into the world with a right to his own person, which includes the liberty of moving and using it at his own will. This is what is called personal liberty, and [it] is given him by the Author of nature...The reducing of the mother to servitude was a violation of the law of nature. Surely then the same law cannot prescribe a continuance of the violation to her issue..."4

Jefferson's unprecedented attack on the institution of slavery was met with a resounding and predicable rejection by the court and a ruling in favor of the slave owner. It was the first recorded instance that Jefferson had publicly uttered the phrase "all men are born free," which was clearly more than the jurists could handle.5 Six years later, Jefferson included a variation of that theme in the first sentence of the second paragraph of the Declaration of Independence:

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

The Blair Divorce

Dr. James Blair, a prominent physician in Williamsburg, married Kitty Eaustace in 1772. However, the relationship quickly soured and Kitty sued for separate maintenance and specific performance of a premarital agreement. Kitty's claim for specific performance was denied and the couple was ordered to attempt a reconciliation of their marriage.6

Alas, the Blairs problems were far from over. From an anonymous letter, Kitty learned that her husband had been rendered impotent from a nervous disorder. Dr. Blair, on the other hand, heard rumors that Kitty had never loved him and was having an affair with the Earl of Dunmore, who was the British Governor of Virginia. Dr. Blair wrote to the Earl, accusing him of committing adultery with his wife. However, Blair retracted the accusation when the Earl threatened to discharge Blair's brother, the clerk of the Governor's Council, if he did not issue a retraction.7

Amid all of this intrigue it is no wonder that the Blair marriage could not possibly succeed. In November 1772, Dr. Blair retained Jefferson to obtain a divorce for him. The problem confronting Jefferson in his representation of Blair was daunting, largely by reason of the fact that a divorce had never been granted in the 155 years that Virginia had been in existence. In order to obtain the result that his client wanted, Jefferson would have to challenge the very foundations of the laws of the colony. As was typical when he was Jefferson immediately immersed himself in study.

"His research went beyond divorce: it entailed the very relationship of an empire and its colonies and whose law should govern. The Blair case was a test of his emerging theory of self-rule for Virginia."8
Under the law of the time in Virginia, a request for a divorce had to be addressed to the Virginia General Assembly. Along with the other Southern colonies, Virginia had adopted the English rule that only Parliament could grant a divorce which, in turn, was possible only if the ecclesiastical court had first ruled that the wife had committed adultery. In his notes, Jefferson observed that on only one occasion, in 1669, had Parliament actually granted a divorce. Jefferson's task was to convince the Assembly that it, and not Parliament, had the power to grant a divorce, by reason of the fact that English law should be deemed unenforceable since Jamestown was founded in 1607.

To substantiate his argument, Jefferson immersed himself in a survey of Enlightenment writings, much of which he had previously read and noted. He devoted hours to a review of respected treatises, such as The Law of Nature and Nations, by Baron Samuel Pufendorf, and writings by Hume, Locke and Montesquieu.9 The obvious goal of Jefferson's immersion was the application of, "...natural rights to the laws of marriage as he had to the relationship between slave and master and church and state."10

Jefferson's voluminous notes reveal that he was focused on the natural right of man to terminate relationships of any form, be they master and slave, husband and wife, or Great Britain and the colonies. This viewpoint was common11 among the Founding Fathers, most of whom embraced the moral standards set forth in Locke's Second Treatise on Civil Government. For example, according to a recent biography James Madison believed that,

"...reason requires all men be esteemed free and equal. By this Madison understood that to regard man, or any group of men, a priori, as 'unfree,' was immoral-that is, could not be defended rationally."12
Unfortuantely, Jefferson's efforts on behalf of Dr. Blair were rendered moot before he had the opportunity to appear before the Assembly. Dr. Blair died barely one month after he retained Jefferson's services.13 Nevertheless, in framing his arguments for presentation to the Assembly, Jefferson "...had laid the groundwork for the dissolution of the union between colonies and mother country which took place three and a half years later, basing his argument primarily on natural law."14

The Declaration of Independence

For two weeks in the summer of 1776, Jefferson secluded himself in his Philadelphia residence and wrote the Declaration of Independence. Jefferson saw his task as not being to introduce new concepts, but to present an "expression of the American mind."15

Jefferson began with a preamble, setting forth ideas that formed the cornerstone of the politics of the Enlightenment. In that efficient and graceful paragraph Jefferson brought to a logical conclusion the concepts that he developed in the preparation of his argument on behalf of Dr. Blair. Jefferson succinctly stated the simple principle that the laws of nature justified the separation of a country from its parent country:

"When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation."
In the Declaration's second paragraph, Jefferson applied the natural law to the right of a people to free itself from the domination of a government that denies man's innate rights to "...life, liberty and the pursuit of happiness." He stressed that a governmental form should not be discarded for "light and transient causes." However, Jefferson continued, there comes a time when it becomes the duty of a people to throw off the existing form of government in favor a new system of governance. Jefferson then proceeded to list eighteen "injuries and usurpations" committed by George III. In the final paragraph of the declaration, Jefferson concluded that "...these United Colonies are, and of Right ought to be free and Independent States."

Conclusion

In his authorship of the Declaration of Independence, Thomas Jefferson perfected his conceptualization of Eighteenth Century Man as having the inalienable right to sever any relationships that he finds oppressive, be they servile, matrimonial or colonial. Much of Jefferson's development of this principle can be traced to the ideas that crystalized for Jefferson in the preparation for his representation of Dr. Blair. For good reason, matrimonial law practitioners can take pride in the knowledge that their discipline made a historical contribution to the principles that formed the foundation of our Republic.

Attribution

The author's primary source of information for this article was Thomas Jefferson - A Life, an excellent one-volume biography by William Sterne Randall. The author highly recommends Randall's work for any reader who is interested in learning more about Thomas Jefferson.
Endnotes
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1. Lloyd Spencer and Andrzej Krauze, Introducing the Enlightenment, at 147 (1997, Totem).

2. William Sterne Randall, Thomas Jefferson - A Life, at 201(1993, Harper Perennial).

3. Ibid, 85-86.

4. Ibid, 147.

5. Ibid.

6. Ibid, 162.

7. Ibid, 162-163.

8. Ibid, 163.

9. Ibid, 164.

10. Ibid, 165.

11. The author has not confirmed that Jefferson's views on divorce were shared by other founders. However, it is clear that the prevailing view regarding slavery was that it was facing extinction. Ellis, Founding Brothers at 89. (2000, Borzoi)

12. Ralph Ketcham, James Madison, at 293-294 (1990, Virginia)

13. It is interesting to note that Kitty Blair swiftly brought suit against Blair's estate for the recovery of her substantial rights to a portion of Blair's assets, including his slaves. The ensuing litigation was both intense and titillating, with testimony about Dr. Blair's impotence and suggestions of Kitty's adulterous conduct. The court hearing the matter was headed by Governor Dunmore - the same man with whom Kitty was rumored to have had an affair. At the conclusion of the trial, Kitty prevailed. Jefferson, who represented the estate, suffered a sound drubbing at the hands of Kitty's skilled attorney and Jefferson's good friend, Patrick Henry. Randall, supra, at 167.

14. Ibid, 164

15. Ibid, 273.