Primary Resource

"An Argument Before the General Court of Colonial Virginia" (1773)

In a written argument prepared in the case of Blair v. Blair, argued before the General Court in 1773, Thomas Jefferson represents the estate of Dr. James Blair against a claim by Blair's widow, Catherine "Kitty" Eustace Blair. (Jefferson mistakenly named the widow as Anne; in fact, Dr. Blair had a sister Anne.) Virginia's attorney general, John Randolph (acting privately), and Patrick Henry argued on behalf of the widow, while Edmund Pendleton and James Mercer argued on behalf of the estate. Jefferson did not participate in oral arguments. The court ruled in favor of Kitty Blair. The following transcription, taken from Jefferson's original manuscript, was prepared by the scholar Frank L. Dewey and does not retain original spelling or capitalization.

Transcription from Original

an argument before the general court of colonial virginia

Anne Blair widow of Dr. Blair v. John Blair his executor

Nov. 1773

Marriage had been solemnized between the complainant and Dr. Blair but no consummation had followed. A hatred irreconcilable and separation had taken place. The complainant, on a bond given by Dr. Blair before marriage to a trustee, had thereon in his lifetime sued for a separate maintenance but the court had refused it. Dr. Blair died and she now brought her bill in chancery for dower in his slaves.

The evidence was voluminous and indecent. That of the defendant tended to prove on the complainant original hatred, ill-temper, disobedience, refusal of conjugal rights, departure not without some hint of adultery, that of the complainant to fix on Dr. Blair impotence and hidden causes of disgust, and it was difficult to say on which side the evidence preponderated. The suspicions of adultery were with Lord Dunmore, who, presiding at the court at the hearing of the cause, might be the reason why those suspicions were not urged.

John Randolph, Attorney General, for the complainant, chose to remove some objections before he entered on the substance of the present demand.

He thought that the former proceedings for separate maintenance ought not to influence the present case. Those were founded on a contract expressed in a bond. That contract was executory only and therefore absolutely subject to a court of equity. The court too hoped that by refusing it a reconciliation would be forced. Besides, their remedy was properly at law and therefore might well be rejected in chancery, but as is said in Banks v. Sutton, 3 P.W. 632, dower is a legal, moral and equitable right, and a court of equity will assist a wife in claiming it. The distinction, therefore, is plain between an executory and a vested right. Our remedy formerly laid in a court of law, but the proceedings in writs of dower being tedious and not well adapted to the nature of slaves, the act of assembly gave us suit in this court. Still however it is to be considered as a common law claim and to be determined in principles of law.

I suppose too it will be urged that the widow has not renounced the will which seems to be required by the act of 1727 which gives us the suit in chancery, to which I give the previous answer, that the will having given her nothing, there was of course nothing to renounce or, in other words, no renunciation to be made. Besides, the act of 1705 had given us dower, and that of 1727 only changed the mode of demanding it.

He then reads the act of 1705, c.33, sec. 8: the widow of any person dying intestate shall be endowed of one third part of all her husband's lands, tenements and other real estate (and this very act had just made slaves real estate) as is directed by the laws and institutions of England. This he thought authorized him to consider the present demand under the laws of England and to inquire

I. What is a marriage by those laws?

II. What are the rights of marriage?

III. How those rights may be forfeited?

applying the doctrine under each head to the present case.

I. Marriage is a civil and religious institution introduced for the propagation of the species and for the society and happiness of individuals in particular. It is civil, insomuch as it is a contract including a number of civil obligations; it is religious as having been approved by heaven itself, and as, when the priest has pronounced two man and wife, the bond is indissoluble by human authority. The essence of this contract is the consent of the parties and clerical attestation, and these render it forever obligatory on all. Two things, therefore, are only requisite to constitute a marriage, (1) consent, and (2) solemnization in facie ecclesiae.

The defendants will probably add consummation as a third requisite, but this I shall endeavor to show is not an essential. Consummation is a venereal commerce between the man and woman after the espousals have been pronounced by a priest. It is an act which the habits of society and perhaps dictates of nature have banished from public sight. Ideas of decency require it to be secret. It cannot therefore be brought into proof but on the evidence of the parties themselves, and their evidence is rejected in law whenever any accident has produced between them an opposition of interests. In lieu of evidence, the law of England establishes a presumption. This is carried so far that if the husband be within the four seas, let his distance be what it will, a cohabitation is presumed. Latterly, indeed, this presumption has been restrained by the admission of evidence that there could be no access of the husband. Pendrell v. Pendrell, 2 Str. 925. But let our case be argued before an English tribunal and we should be told that no evidence could overweigh this presumption where the parties as in ours bedded together, lived together at first, and afterwards in the same town.

Dr. Blair, indeed, in his answer to the bill for alimony, says there was no consummation, but were his testimony admissible in the present case, yet he lived long in the same town after the date of that answer and so might have access and cohabitation afterwards. Mrs. Blair too has said (as appeared in the depositions) that she was still a vestal, but she means in mente tantum, as Lucretia did. "Corpus est tantum violatum, animus insons."

It is indeed a general maxim that a negative cannot be proved and therefore that the affirmative must be; but how indecent, how impracticable, how cruel a task would this impose on female modesty and delicacy, should the proof of consummation be always called for from the wife on her demand of dower. That law is therefore virtuous, tender and delicate, which shields their modesty under a presumption, derived from the circumstances of consent, solemnization, and retirement into secret. What follows is presumed and therefore need not be proved.

But though the consummation be presumed, yet is its actual existence unnecessary. Neither the canon nor common laws require it to validate the marriage. The law of the church does not require it. Turn to our ritual which is by a statute engrafted into the common law and made a part of it. That tells us that marriage "is not to be enterprised to satisfy man's carnal lusts and appetites." This then cannot be of the essence of marriage. And having told what is not, it afterwards says what is of its essence: "foreasmuch as N. and N. have consented together in holy wedlock, etc., I pronounce that they be man and wife together."

The common law knows but two pleas in demand of dower, to wit, "ne unques accouples," and "ne unques seisie." The former is the one which agrees substantially with the present defense, but this is one, being made up at law, the judge writes to the ecclesiastical court to be certified whether there was a marriage or not. And on this application, does the bishop send about the country to find out whether there were consummation? No. He turns to his register, certifies what is found there, viz., that the parties were accoupled according to the usual rites, but he will find there no record of consummation and therefore will not certify it. This shows that it is an immaterial circumstance.

Nor by the laws given to the Jews by God himself was consummation requisite to constitute a marriage. By that a man lying with a married woman was to be stoned; so if he lay with a virgin betrothed to an husband he was to be stoned, but if he lay with a virgin not betrothed, he paid 50 shekels of silver only. Deuteronomy 22:22–29. Here then the virgin betrothed is put on a footing with the married woman though this very appellation excludes the idea of consummation. So in the case of Rebecca we are told (Genesis 24:67) that Isaac "brought her into his mother Sarah's tent, and took her and she became his wife." The circumstance of consummation is not noted, as being immaterial to the making her his wife. In the New Testament also, 1 Matthew 18, we are told that Mary the mother of Jesus was espoused to Joseph, but before they came together, was found with child. Had consummation been necessary to make her his wife, Joseph would have had nothing to do but refuse her, but we find that he was going about to divorce her. She was Mary his wife though they had not come together. That procreation is not the only purpose of marriage is evident from the legal validation of marriages where the parties are past the age of procreation, and in which case the rubric directs that the prayer that they may be fruitful in procreation shall be omitted.

As it appears then that the canon law does not require consummation to perfect a marriage, so will it that the common law does not. Thus Coke on Littleton: "Here Littleton … 'consensus non concubitus facit matrimonium, etc., lawful marriage quoad dotem.'" And Blackstone tells us, first volume, 434, this was a maxim of civil law adopted by our common lawyers. Thus we find the very point now in question between us is so absolutely established as to be a maxim of the common law.

He cites [from] The Cases of Impotence, a book he says [is] often cited, Sir George Downing and Mrs. Forrester's case. He was only 15 and she 13 years of age. They were put to bed in the day time. It appeared that they never touched one another, that they then separated and never again came together, yet was their marriage so firm that they were obliged to apply to Parliament for a divorce.

Baron and Feme, 4. "It is agreed as well by common lawyers as civilians, that persons mutually contracting spousals in words of present time are very man and wife before God in what manner soever they are performed, for nothing but a full, free and mutual consent is of the essence of matrimony."

Hence it is that precontract was good cause of divorce. And indeed so firmly is marriage effected by contract alone that it was held that, on pronouncing a divorce for this cause, the parties precontracted were man and wife without solemnization, and also that if, after the second marriage the parties precontracted were espoused, the second marriage was null without a divorce. Baron and Feme, 431. And such would have been the law still had not the statute 32 Henry 8, c. 38, which enacted that all marriages between lawful persons (i.e. such as are not prohibited by God and law to marry) solemnized in the face of the church and consummate with bodily knowledge shall be indissoluble notwithstanding any precontract not consummate with bodily knowledge. Thus we find that parties are by their consent only rendered man and wife, the case of precontract excluding the idea of consummation. To entitle the wife to dower, indeed, there must follow a celebration in facie ecclesiae. 3 Bacon's Abridgement 375.

To all this let us add Dr. Blair's own testimony that the complainant was his wife, by which appellation he calls her in his will

II. Proceeding secondly to enquire what were the rights of marriage, we may say in a few words that dower, the subject of the present demand, follows marriage as a shadow does its substance. Whether this right arose from the canon, the common, or statute law seems not well settled, but the laws, having given to the husband the absolute property in his wife's slaves and personal estate and his life [estate] in her lands, could do no less in retribution than give her a life estate in one third of his slaves and lands. It is to be noted, too, that dower is one of the things said to be favored by the law; these are three: life, liberty and dower; and a strong reason for placing the dowress among the favorites of the court is that she cannot again be put into the same situation in which she was before marriage.

III. It remains now only to inquire whether the complainant has done anything to forfeit her right of dower? Will it be said that she has refused consummation? It has been before observed that this has not been proved, that the contrary is presumed by law, and that whether it took place or not is totally immaterial. Will it be said that she has eloped? But who eloped first? Dr. Blair left the house first in which they were; finding that he had deserted her, she then removed to another house, but not 100 paces off, whither he also might have gone. But suppose her eloped; this alone is no cause of forfeiture. At the common law, elopement accompanied with adultery was no bar of dower. 2 Inst. 435. The Statute of Westminster 2 c. 34 indeed made them so, but still required both. Lord Coke tell us that adultery alone is no bar of dower, and indeed the words of the statute are evidently copulative: "Si uxor sponte reliquerit virum suum & abierit & moretur cum adultero suo, amittet dotem." He tells us, Coke on Littleton 33.6, in a writ of dower the bishop ought to certify [blank space in the manuscript] his distich shows also that there must be adultery as well as elopement: "Sponte virum mulier fugiens, et adultera facta,
Dote sua caveat, nisi sponsi sponte retracta."

In The Cases of Impotence, we have Serjeant Wright's opinion on an elopement, how to secure the husband from the contracts of the wife, and that should he die first the wife will be entitled to dower, "notwithstanding her elopement unless she can be convicted of adultery."

He then reads the case of Sidney v. Sidney, 3 P.W. 269, and insists there was never an instance of chancery depriving a woman of her dower; but in our case there is no charge of adultery and Dr. Blair himself acquits her of it. Nothing is complained of but her misbehavior, which brings Sidney's case to be in point. Indeed, it is not so strong as ours, because that was a case of articles in which a chancellor may go farther than he can in controlling a general law. A gift of the law is of higher dignity than that of an individual. "Dispositis legis fortiori est quam hominis" is a maxim of law. Thus where lands come to the same person both by descent and devise, the title by descent as being given by the law is the one which vests in him and supersedes the other which is the gift of man. The case of Moore v. Moore, 1 Tr. Atk. 273 is to the same effect as that of Sidney, that the chancellor will not interfere to take away the rights of the wife secured to her by marriage contract; and concludes therefore, as I observed before, a fortiori in favor of dower.

Had the defendant intended to object adultery as well as elopement he should have pleaded it, by which it would have been fairly put in issue, and we should have known on what point to prepare our defense, but this not having been done, it is to be hoped that no insinuations will impress the ear of the court.

Henry for the plaintiff avoided, as was his custom, entering the lists of the law, running wild in the field of fact. He adduced however one new and pertinent observation, which was that if between the hours of solemnization and retirement to his nuptial bed, Dr. Blair had died, his widow would have been endowed. He applied to this case the doctrine of tender and refusal, endeavoring to show that his client had been toujours prête but that there was a want of readiness in the doctor.

Pendleton for the defendant states and considers the evidence, discrediting the deposition of Mrs. Eustace, mother of the complainant, which principally endeavored to fix the want of consummation on Dr. Blair's impotence and not on the obstinacy of her daughter. He insisted that Dr. Blair's answer to the bill for alimony was proper evidence that there was no consummation, that the presumption of law on which the plaintiff's counsel so much relied was like all other presumptions—good till contradicted by positive proof. "Stabitur praesumptioni donec probetur in contrarium." He admits the indecency and hardship of calling on the wife to prove consummation in all cases, but replies that the want of it is proved in the present case on the part of the husband. That this presumption may be set aside by sufficient proof, the Attorney General has admitted by citing the cases where proof of no access by the husband has been permitted to be introduced, and that issue thereby has [blank space in the manuscript] That the want of consummation being proved by Mrs. Eustace and admitted by Mrs. Blair, he would consider this fact as established and proceed to lay down two important positions.

1. That in all contracts founded on mutual covenants, performance or at least a readiness to perform must be shown by him who seeks redress against the breach of contract.

2. That marriage is founded on the consent of the parties though the law for wise purposes has directed the church ceremony; that according to that ceremony, the priest only pronounces after the parties have consented. He observed that the cases of marriage under age, of forced marriage, of marriage de facto, proved that consent alone was the operative circumstance. That, in the marriage under the age of consent and the forced marriage, the want of consent renders it null in opposition to the formulary used; and in that of marriage de facto, where the form is not used, consent establishes the marriage. That in the former cases, all the vows are repeated, yet all are vain because the mind does not assent. So if, as in our case, she repeats them hypocritically, with design never to fulfill them, the same want of assent produces the same nullity. It would be strange indeed if want of assent should be less effectual to defeat the marriage because coupled with a wicked and cruel fraud in the plaintiff.

The purposes of marriage, we are informed by the church ritual, to which the plaintiffs have appealed, are (1) for the procreation of children, (2) for a remedy against sin and to avoid fornication, and (3) for the mutual society, help and comfort of the parties. The first and second of these make it a duty in the wife to yield herself to her husband, according with 1 Corinthians 7:4, which says, "The wife hath not power of her body, but the husband." The third obliges her to be a social companion and useful housewife in domestic affairs. These are the essential objects of the contract. He examines Mrs. Blair's conduct by these and declares her to be disobedient, contemptuous, utterly determined against the nuptual rites, and to have performed not a single condition either expressed or implied in the ceremonies of marriage. That at there being so total a failure of compliance with the contract on her part, it is impossible she can be entitled to demand its advantages from the other party.

He admitted that at the common law both elopement and adultery were requisite to defeat the right of dower, but [argued] that the law supposes the right to have been first vested, whereas no such right had ever vested here, the marriage having been incomplete for want of consent.

That it was also incomplete for want of consummation. In every contract there is an inception, progression and completion. He produces instances of explanation from cases of lands and personalities. In the present case, courtship, betrothal and the church ceremony are inception and progression; and consummation is completion. Then alone the dominion of the husband becomes complete.

He urges that the contract between these parties was void

1. from fraud in the wife,

2. error in the husband.

Thus Pufendorf, 3.6.6.: Another thing which invalidates consent, and, by consequence, the pacts that are built on it, is error; through which it comes to pass, that the understanding is cheated in its object, and the will in its choice and approbation … we may lay down this for a certain rule, that if a promise be grounded upon belief and presumption of some fact, action, or quality, without regard to which I should never have given my consent, my promise is naturally null and void, provided it appear evident from the nature and circumstances of the business that I agreed to the proposal purely on account of that fact, or quality, which I took for granted. and section 8: Much more ought a mistake to render a pact invalid if it were occasioned by the fraud of one of the parties. and he [Pendleton] applies to these deductions from the law of nature and reason the circumstances of the present case, showing the hypocrisy of Mrs. Blair and deceit on Dr. Blair, who certainly expected from his contract an acquisition of a nature very different from what it proved. He supported this doctrine of Pufendorf by appealing again to the marriage ritual, which calling solemnly to the parties to testify if either of them knows any impediment "why they may not lawfully be joined together in matrimony, reminding them that those who are coupled together otherwise than God's word doth allow are not joined together by God, neither is their matrimony lawful." This shows there are cases in which the marriage is not lawful. Such are those of incest, polygamy and precontract, yet in all cases the parties are pronounced man and wife.

In further proof of the same point, he cites Milton on Divorce, Book 2, chapter 16: Lastly, Christ himself tells us who should not be put asunder, namely, those whom God hath joined. But whom hath God joined? The same author, Tetrachordon, page 357 [244], in his comment on these words: "What therefore God hath joined let no man put asunder," Matthew 19:6. But here Christian prudence lies to consider what God hath joined; shall we say that God hath joined error, fraud, unfitness, wrath, contention, perpetual loneliness, perpetual discord, whatever lust, or sin, or witchery, threat, or enticement, avarice or ambition hath joined together, faithful with unfaithful, christian with antichristian, hate with hate, or hate with love, shall we say this is God's joining? And again, ibid., on Genesis 2:24, page 339 [226]: Cleave to a wife, but let her be a wife, let her be a meet help, a solace, not a nothing, not an adversary, not a desertrice; can any law or command be so unreasonable as to make men cleave to calamity, to ruin, to perdition? And ibid., 365 [252], on Matthew 19:9, on these words, "his wife," he says: This word is not to be idle here, a mere word without a sense, much less a fallacious word signifying contrary to what it pretends; but faithfully signifies a wife, that is, a comfortable help and society, as God instituted; does not signify deceitfully under this name, an intolerable adversary, not a helpless unaffectionate and sullen mass whose very company represents the visible and exactest figure of loneliness itself. Such an associate, he who puts away, divorces not a wife, but disjoins a nullity which God never joined, if she be neither willing, nor to her proper and requisite duties sufficient, as the words of God institute her. and 403 [289], in the 39th chapter taken from Bucer, after saying that the full and proper and main end of marriage is the communicating of all duties, both divine and human, each to other with utmost benevolence and affection, he says: By which addition we may know that God esteems and reckons upon these four necessary properties to be in every marriage: (1) that they should live together; (2) that they should love one another to the height of dearness; (3) that the husband bear himself as the head and preserver of his wife. … that the wife also be to her husband a help, according to her place, especially furthering him in the true worship of God, and next in all the occasions of civil life; and (4) that they defraud not each other of conjugal benevolence. … Hence it follows, according to the sentence of God … that between those who either through obstinacy or helpless inability, cannot or will not perform these repeated duties, between those there can be no true matrimony, nor ought they to be counted man and wife.

But consummation is requisite, we are also authorized to say, from the common law itself; for Lady's Law 33 says in express words, "Consummation is necessary to [blank space in the manuscript] a marriage," and Pufendorf, 6.1.14: We are obliged to explain that common maxim of the lawyers, that consenting and not bedding makes a marriage … to make a wife, it seems necessary, that the woman deliver herself as it were into the possession of the man, for the common ends of matrimony. …

Objections to this doctrine have been drawn from the Jewish law, and particularly from the punishment of a person having carnal knowledge of a woman betrothed, to which this is the true answer, that from the time of the contract they have so much interest in each other as that a third person shall not interpose; but as between themselves, that interest is not complete till consummation. So Rebecca did not become Isaac's wife till he carried her to his mother's tent, which implies what decency would not permit to be expressed. Yet both parties had consented before—Isaac in demanding her, and Rebecca in choosing to go to him.

Objection: Coke on Littleton 33. Answer: that was the case of a husband died before the age of consent, but in our case there had been neither consent nor consummation. There, too, there was no fault in the wife; therefore it cannot be urged as authority in favor of a wife who has been in fault.

It has been urged from the case of Banks v. Sutton that dower is a legal, moral and equitable right, and that a court of equity will assist the wife in obtaining it; but she must be a wife in Milton's emphatical sense. This court will never assist a claim which answers not every principle of morality and equity, and is out of the intention of the law itself.

In the cases of Sidney v. Sidney and Moore v. Moore, the marriages were complete and no objection against the wives as having refused obedience altogether. This only alleges that they had withdrawn themselves and lived separately.

An objection has been foreseen on the other party, because it was known to lie, that though a demand of dower is sent by the law in to this court, yet it is to be determined on principles of law and not of equity; but I make a very different inference. I conclude that by this the law meant to restrain demands of dower in slaves to those cases only where it might be supported on principles of equity, and that none should have dower but those whose cases were fit for a court of equity. Certainly this court is to decide by the rules of equity, and will not depart from its principles because the law has sent a suitor here.

We have been told, too, that only two pleas are known in cases of dower, to-wit, "ne unques accouples" and "ne unques seisie." The first of these, which corresponds to our defense, is decided on the bishop's certificate, which would be framed from his register and not from the fact of consummation. These indeed are the pleas where those are the objections and the issue a general one; but where the case is special, the defendant may plead specially. Besides every precedent must have a beginning. The demandant of dower has been but newly introduced into a court of equity, and the principles of the court but lately begun to be applied to her. No wonder, then, that cases should arise in which pleas have not yet been formed. If the present case be new, the court will be pleased to consider that their decree is to become a precedent, and to say what is fit to be made a precedent.

Another objection is that dower is favored because the party cannot be put into the same situation; but no consummation having taken place, she may be put into the same situation. Had she acted as a wife this objection would have been real and forcible. If it cannot avail her in the present case, she may thank herself. Dower is the pretium pudonis, but that having not been violated, the demand is premature.

II. He insisted that, setting aside all the preceding reasons, she could not recover her dower for want of a renunciation of the will, this being expressly required by the act of assembly which says that after such renunciation, she shall have the dower. It has been said indeed that the will left her nothing to renounce, but the act does not say that she shall renounce in those cases only where a provision has been made for her by the will, but in all cases whatsoever. Besides, it may often be a very moot point whether the widow be entitled to anything under the will.

Mercer for the defendant considered this demand under two heads: (1) whether one who does iniquity shall have equity, and under this cited Francis' maxim II.6.8, and (2) whether her demand was good in chancery. But the whole matter having been taken up before him by Pendleton, it is unnecessary to state his arguments.

The court decreed for the complainant.