Virginia, USA, lacked a permanent Governor from 1768 to 1772. The Scottish Viscount Fincastle, John Murray, the fourth Earl of Dunmore was appointed in 1772. Dunmore was to be Virginia’s last British Governor. Before his retreat, he lived a scandalous life. Dunmore had a mistress, Mrs Kitty Eustace Blair. She left her husband’s home but claimed for fiscal maintenance. Her Husband, Dr James Blair, received a notice of the claim. Dr Blair intended to fight her in court, but died before the litigation ended.
1. Dunmore, the Blairs, and Jefferson
When her husband died, Mrs Blair directed her claim against his estate. Dr Blair’s brother was entitled to inherit whatever was left of that estate after the debts and credits were balanced. The fewer the debts, the more the brother would receive. Accordingly, he asserted that Mrs Blair should not be paid at all. Jefferson represented him. He lost. Dunmore sat on the bench as one of the judges--the same Dunmore with whom Mrs Blair was intimate, the same Dunmore who was incentivised, then, to see Mrs Blair financially secure. The outcome of the case, therefore, may not reflect the quality of Jefferson’s argument.
As Michael Kranish annotates, Blair v Blair ‘foreshadowed much of what was to come on a greater scale: the argument for divorce from Britain’ (p 32). More broadly, Jefferson’s records about the litigation demonstrate that a good argument does not always triumph, nor a poor argument always plummet. It is always good, however, to aim to create the best possible argument, and to develop the skills to produce such arguments as often as possible.
Earlier, in Howell v Netherland, which Jefferson again lost, he said, ‘Under the law of nature, all men are born free’ (quoted in Flight From Monticello p 35). Clearly, Jefferson had a mind for rhetoric. Though his notes on Blair v Blair seem to be more grounded--perhaps showing a development in his legal prowess in the years between 1770 and ’72--he eventually returned to this language of freedom when he drafted the Declaration of Independence in 1776. That document entrenches inalienable rights, including this natural freedom, which Jefferson had practised advocating in courtrooms. Notwithstanding the hypocrisy (Jefferson owned hundreds of slaves) it is worth analysing his method, plundering it for advice about good argumentation.
There is a certain ironic pattern in all this. Jefferson had argued for the freedom of a slave in court. He lost. Two years later, Jefferson fought before Dunmore in court. Dunmore declared Jefferson the loser. Three-or-so more years later, Jefferson fought Dunmore from a distance, manoeuvring troops and leaders against Dunmore’s Loyalist soldiers. This time, Dunmore lost. But in his losing, says Kranish, Dunmore inadvertently led to slaves’ actual emancipation. Dunmore fought for the British Crown. He thought to rally slaves against the rebellious Americans, promising freedom to any who escaped slavery to fight for Britain. Jefferson’s immediate wishes were defeated several times solely because Dunmore selfishly antagonised him.
The Scot battled for himself and for Britain, nonchalantly ignoring others’ horrors until relieving some of the slaves’ terror gained him a military advantage. Thanks to Dunmore, then, many slaves were able to realise Jefferson’s natural freedom--but when that occurred, it cost Jefferson’s compatriots heavily. This highlights the idea that competing claims can wane and pulse. It is up to the legal thinker to rely on whatever competing claim will convince another person to secure--even to take up as their own fight--whatever outcome the legal thinker considers best.
If Jefferson had waited to face Dunmore till Dunmore needed freedom and waited, too, to uncover his argument about personal liberty, that hypothetical first meeting could have been a triumphant one for Jefferson. It is clear now that Jefferson’s wishes were simply expressed at the wrong time. Of course, I’m not suggesting that history was wrong--whatever that means--but I am trying to show that other people’s desires may be--should be--taken into account in arguments. Jefferson’s legal method was to list and weigh pros and cons, and to balance these lists in arguments to show others why they should help to achieve his wishes--because such an outcome would be the best outcome, with more advantages, and less disadvantages. The rest of this post suggests how law students may use a similar process for useful purposes.
In Blair v Blair, Jefferson considered divorce, intending to show that Dr Blair need not remunerate Mrs Blair because the marriage was extinguished:
2. Jefferson’s Method
“PROThe plan was to foresee all the arguments that Mrs Blair’s lawyer would present. If Jefferson could foresee them, he could halt them before they gained favour with the judges. After outlining pros and cons, Jefferson could find flaws in the law, and strengths in the parts of the law on which he wanted to rely.
Cruel to continue by violence by [a] union made at first by mutual love, now dissolved by hatred … to chain a man to misery till death.
Liberty of divorce prevents and cures domestic quarrels.
What is to become of children—divided?…
When divorces most frequent among Romans, marriages were most rare…” (p 31, footnote omitted).
For example if any law against divorce had been enacted because the legislators thought allowing divorce would decrease marriage--perhaps undermining the family nucleus--then Jefferson would know his next task: to undermine that law. If Jefferson knew who the judges would be, and could discover, perhaps, that one judge was unhappily married, he could argue for divorce from a sympathetic perspective. If any law allowed divorce to prevent quarrels, Jefferson could explicitly rely on it, suggesting that the law’s consequences were good. If Jefferson could show the Blairs had no children, he could nonetheless demonstrate that his interpretation would not lead to problems of divided siblings in other cases. The pros and cons, that is, allowed Jefferson to create frames of reference, to formulate criteria, against which the law could be evaluated. It is this framing, this formulating, which may be put to use.
Law students, therefore, may benefit from Jefferson’s method. Below is some advice about how they may benefit. If you are a law student, feel free creatively to differ from my suggestions.
3. The Use for Law Students
- Step back from the law that you’re studying.
- Consider: in this area, about this problem, what is the optimal result?
- What is the central problem here?
- What are its pros?
- What are its cons?
- What does the law say, precisely?
- How should the law, according to the situation’s pros and cons, be applied?
- Should the law be applied literally?
- Would the law then procure more of the cons than pros?
- Or more of the pros than cons?
- Can you weave these ideas into an argument to show that a law would produce those cons, to show why the law should not be applied in that manner?
- Can you weave these ideas into an argument to show that a law would lead to those pros, to show why the law should be applied to secure and to effect that result?
Law students should notice that many of the ideas for and against a law’s interpretation one way or the other concern policy. Case law is flooded with arguments about policy. Keep your eyes open for policy arguments, and learn to include them in your assignments to improve your writing. In two other posts, I aim to show how Jefferson’s method may help to analyse case law. Keeping with the theme of marriage disputes, I will consider Shadwell v Shadwell, about enforcing a gift supported by marriage consideration in contract law, and Re Rose, an equity case about a husband’s imperfect gift to his wife, shortly before his death.
4. Concluding Remarks
Both Shadwell and Re Rose, in light of the above analysis of Jefferson’s turbulent life, show that contract law and equity--topics that are too often perceived as dry and set-apart--are saturated with profound questions about everyday relationships. The examples concern the honouring of agreements between spouses, and the completing of failed transfers between uncles and their nephews and nieces. These issues, in turn, force us to ask what the law should do for families, for society: should the law intervene? Or should the law keep its nose out? I hope this post entices readers to relish contract law and equity’s nuanced contributions to our social lives.
This post is also intended to illustrate one of the methods of enquiry alluded to in an earlier post, Enquiry-Based Learning.
5. Further Reading
Created: 16–18 May 2015. Version 1.0.
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