The Scandalous Divorce Case that Influenced the Declaration of Independence

During the hot, humid Philadelphia summer of 1776, the writing of the Declaration of Independence was just another Congressional housekeeping chore which the delegates decided would have to be done to explain to people everywhere why the vote for American independence had just happened. As Thomas Jefferson later described it: “an appeal to the tribunal of the world was deemed proper for our justification.”[1] If John Adams had known the importance that history would place upon the legalistic piece of parchment, there’s no doubt he would’ve held on to the sub-committee assignment for his own composition and his own immortality. But as it was, Adams was bogged down by being on an extensive number of committees, many of which he chaired,[2] and he was overloaded with work. The Declaration writing sub-committee[3] assigned the writing of the document (or ironically Adams possibly could’ve assigned it away from himself) to the new guy, Thomas Jefferson, a recently arrived Continental Congress delegate from Virginia.

Jefferson knew what had to be said in the justification for separation, having silently sat through the many long Congressional debates. Once tasked with the assignment, he probably started arranging the thoughts and statements in a logical order, drawing from Enlightenment theories that he was very familiar with,[4] coupled with thoughts and phrases from the recent document by his friend George Mason, the Virginia Declaration of Rights. The Declaration of Independence’s famous list of gripes about King George III could be picked up and re-shuffled from Jefferson’s most recent assistance with the Virginia Constitution. Jefferson would also probably mentally recall details from the recent Declaration of the Causes and Necessity of Taking Up Arms, and Jefferson’s own searing indictment of British tyranny, A Summary View of the Rights of British America. Overall, many decades later he recalled in writing the Declaration, “I know only that I turned to neither book or pamphlet while writing it,”[5] “nor yet copied from any particular and previous writing.”[6] Whether Jefferson was mis-remembering details from nearly fifty years earlier doesn’t really matter. Jefferson knew the “natural rights” material cold. However, it was his eloquent phrasing and poetic cadence, especially of the Declaration’s preamble, that still rings out as the anthem of an entire nation. Adams’ version of the Declaration might’ve been a real legalistic yawner.

But of course, always-angry Adams would later poo-poo Jefferson’s inspired sources. “There is not an idea in it, but what had been hackney’d in Congress for two years before.”[7] Sounding like an unemotional librarian, Adams added,

Look in the Journal of Congress 1774 for the Declaration of the Rights of the Colonies, and in the Journal of 1776. Month of May for a Resolution of Independence. Then consider Whether the Declaration of Independence of 4. July 1776 is any thing more than a juvenile declamation founded on those two Documents.[8]

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But while those two hash it out, we might look back to 1772 to perhaps another inspirational source for Jefferson, when he was first actively weighing out the legality and sovereignty that British law still had upon the American colonists. His deep examination of a particular legal case may have been the first inklings of what would become a justification for a logical break from the mother country, and so would require a Declaration to explain it. It would be a scandalous Virginia divorce case, ironically, that could have been an early source of Jefferson’s first thoughts on the subject of the dissolution of unions. “The case of Blair v. Blair[9]… foreshadowed much of what was to come on a greater scale: the argument for divorce from Britain.”[10]

“Permission to treat the bride as hostile?”

In November of 1772 divorce was much on the mind of Thomas Jefferson. No, not for himself. In fact, Thomas had just married Martha Wayles Skelton eleven months earlier. Their first baby, Martha, called “Patsy,” had just been born in September 1772, one month premature, but would survive and grow to become Jefferson’s longest living acknowledged child.

Jefferson had just accepted a sensational divorce case from John Blair, Jr. his College of William and Mary law cohort. Blair, who had just recently been appointed time clerk of Williamsburg’s Royal Governor’s Council, needed to distance himself from the case which involved his brother’s marriage. In the meantime, Jefferson had been well aware of the popular, shocking and sordid details of the marital case between Dr. James Blair, the brother of Jefferson’s friend, and Blair’s bride, Catherine “Kitty” Eustace, younger than her groom by ten years. In fact, everyone in Williamsburg was aware of the Blair wedding scandal and savored every detail. To bring you up to date on the case points:

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In 1770, James Blair had just finished medical school in Edinburgh, Scotland and was looking forward to a thriving medical practice in Virginia. But he was suddenly stricken with seizures from an unspecified disease. A trip to the curative waters in Bath, England didn’t seem to help, although the symptoms had lessened. So Dr. Blair returned to Williamsburg and started his career in medicine, probably hoping that the mystery illness had no lasting effects.

In the meantime in 1769 and again in 1770, two lovely women, a mother and daughter duo fresh from New York, were noticed visiting Norfolk, Virginia. Following the death of her husband, Dr. John Eustace, Margaret Eustace had started traveling with her young daughter, Catherine “Kitty” Eustace, whom she called “Kitt.” The two Eustace women traveling unescorted hadn’t escaped the attention of Norfolk residents, especially of local merchant James Parker and his wife. Every town needed its nosey gossip mongers, and Parker appears to fit the bill in colonial Norfolk. His gossipy letters to fellow merchant (and Eustace family friend) Charles Steuart in Portsmouth, Virginia will be frequently quoted in this story, because they give insight into the case and because they’re hilarious.

In August 1770, Mrs. James Parker dropped a polite line to Steuart saying, “Mrs. Eustace and her pretty daughter [are] really two very agreeable ladies.”[11]

By late spring 1771, however, Dr. Blair’s wealthy father, John Blair, Sr., was ill and ready to make out his will. The senior Blair had been in the House of Burgesses and was four times acting Virginia governor. The Blair family had founded the College of William and Mary. He had much wealth and extensive land holdings in Virginia and around Williamsburg, including having owned the Raleigh Tavern. The John Blair house on Duke of Gloucester Street in Williamsburg is still one of its oldest buildings. It wasn’t a hidden secret in Williamsburg that young Dr. Blair was soon to inherit a small fortune.

In May 1771 gossipy ol’ Jim Parker was penning this bulletin to Steuart:

Kitty Eustace, the chip which you forwarded to this country, is to be married immediately after the General Court to Doctor Blair … I think the doctor will marry more than one … The mother and her must go together. She’s a clever, managing sort of a lady and has played her cards exceedingly well.[12]

So the wedding bells rang out in Williamsburg on May 21, 1771 for the happy groom and bride, Dr. and Mrs. Blair. Apparently, (from all references read) the marriage broke up immediately, if not the next day. The blushing bride moved in with her mom, just down the street “not 100 paces off,”[13] and sued her husband for three separate claims, one of which is what we call alimony today.

When Kitty told the court there would be no arbitration, the court denied all of her claims and ordered a reconciliation of the newlyweds. Because social pressure decreed a wife does not abandon her husband (and because she had no other choice for a livelihood really), Kitty moved back in with her doctor husband. For four months, all of Williamsburg then watched for signs of renewed “felicity” between the couple, but they were disappointed and gossip seemed to turn dull again. Until September, 1771.

That’s when the new royal governor rolled into Williamsburg. He was the flamboyant Scotsman, John Murray, the Fourth Earl of Dunmore. He had been a family friend of the Eustace’s in New York, and it didn’t hurt that in the Royal Court of St. James he and King George III had been childhood friends and had shared a common tutor. It wasn’t long after his arrival before Kitty was bringing welcome wagon gifts to the new guy in town. Hushed rumors began taking wings again, this time that Mrs. Blair and the Earl were having an affair! Everyone seemed to know it; well, except for Dr. Blair. Following an uncomfortable dinner party attended by many residents, including Dr. and Mrs. Blair, the mother-in-law, and Dr. Blair’s sister Anne at the Governor’s Palace in May 1772, Nosey Parker reported to Steuart,

A most damnable fuss has been at Williamsburg with Dr. Blair and his rib. Nothing was talked of but separation … but … they are seemingly reconciled and she was to let him make a push the night we left the Court.[14]

And yet a couple of weeks later, on June 12, a new Parker dispatch to Steuart went out:

There’s nothing yet done at Williamsburg in Kitty’s case. We thought the matter was entirely settled … but it seems she jumped out of bed and would do nothing …. There never was such a piece of work, Her thing is talked of all over the country.[15]

The very public soap opera continued when on July 18 Kitty sent Anne Blair, her sister-in-law, a confidential letter in which she admitted she hadn’t married Dr. Blair for love (shocker). She headed the letter, “My dearest Nanny, the sister of my Heart” and confessed it was only the Blair family affection for her that enabled “me to discharge the most rigid duties of a good wife.” But Kitty also shared the “Indignities” she had had to suffer “from cruel & hard hearted Strangers.”[16]

In a still-yet bizarre side note, in the boarding house run by Kitty’s mother, Margaret Eustace, one of her boarders and College of William and Mary student St. George Tucker was shown an unsigned, anonymous letter to Margaret containing a good gossipy statement. The letter said, “I have believed & Experience will confirm it that Doctor Blair is incompetent,”[17] which in colonial marital terms does not mean “ineffectual.” Tucker, a little taken back by his land-lady’s disclosure, suggested she just ignore it.

But amazingly, somehow in tattle tale Williamsburg, the content of the anonymous letter started spreading everywhere. A special delivery communication went out on November 18, from Nosey Parker to Steuart:

Matters are now come to an open rupture at Williamsburg. The old lady persists her daughter is still a maid, and that the Dr. never has and indeed cannot do as a man should do.[18]

Dr. Blair was not amused about the rumors. But when he’d also heard that there might be a thing going on between his wife and the governor, Blair dashed off a fiery note to His Lordship. Dunmore read the letter and called in John Blair, the doctor’s brother and Jefferson’s friend. He threatened that if Dr. Blair didn’t retract his letter, John would be forever unemployed with the Governor’s Council – and probably in all of Williamsburg or Virginia. Dr. Blair gave in and retracted the letter, but was totally exasperated. It seems that Kitty Blair had filed in court, again, for “separate maintenance” (a.k.a. alimony).

To counter her latest filing, Dr. Blair wanted a divorce. John Blair asked Jefferson for help. The problem was that getting a divorce in colonial Virginia was impossible.

The Right to Divorce, Whether Couples or Continents

Virginia, like other southern colonies, was still tightly bound to old English law. It literally took an Act of Parliament through a British ecclesiastical court to get a divorce, and even then it was actually just an annulment. Rarely, one could get a kind-of -divorce “from bed and board.” But that was what we call a legal separation today and even after that, the two parties could not remarry. Even more rare was a divorce through an English criminal court, but that was extremely expensive. There had been only one of those since 1699 in England.

So divorce, as so many other things (like selling colonial tobacco on the British market for whatever price it sold for) left Americans helpless to control large aspects of their lives. Colonists had started to feel like second-class people, having to blindly obey laws from a kingdom across the ocean. Jefferson, like fellow Virginian George Washington, was feeling more like an insignificant subject ruled by an inflexible British system of growing oppression, in which the colonists had no voice. A change in the ancient English divorce law in Virginia could be seen at least as a small step up the American ladder of self-rule. Thomas Jefferson accepted the divorce case.

For a solid month, from November 25, 1772, the date of Jefferson’s retainer in Dr. Blair’s case,[19] to December 26, 1772, Jefferson studied the philosophy and theories of divorce from his law library at Monticello. As always, he took extensive notes on the subject, which still exist. He pondered subjects as the justifiable grounds for separation, the pros and cons of keeping together an abusive bond, and many other conditions he listed – which could be easily read as the same reasons that would be debated a little over three years later in the Continental Congress in Philadelphia.

From a legal precedence, Jefferson was justifying the change in divorce law (and potentially, American independence) on the premise that after a colony was established or “seated” a continent away, restrictive English laws were null and void in that colony. So in the case of Virginia and Jamestown, settled officially in 1607, England’s ecclesiastical divorce laws wouldn’t be valid in Virginia. In fact, Jefferson reasoned, Parliament had no legislative power to even rule for or against them within Jefferson’s “country”[20] of Virginia.

Finally, Jefferson’s divorce notes include the phrase “natural rights,” a theory that he was already very familiar with from Enlightenment thought. It simply stated that personal human rights emanate not from Parliamentary laws, but exist in the state of nature granted by God.[21] It was also an overarching ideal woven throughout the Declaration of Independence.

Initially, through the case of Blair v. Blair, Thomas Jefferson was planning on changing divorce law in Virginia for the benefit of his client. But he was also indirectly making another small dent in the total control that Great Britain exercised in directing virtually every aspect of American life, without, of course, any American representation in British Parliament. When the Virginia General Assembly reconvened in spring 1773, Jefferson planned on proposing a bill he was writing, allowing a special legislative divorce for Dr. Blair. The plan was all set.

But unfortunately, on December 26, 1772, Dr. James Blair died.

He had been at the Albemarle County house of his uncle, Dr. George Gilmer (or “Gilmour”),[22] and no foul play was suspected. The plans for the divorce and the Virginia legislative divorce bill were of course shelved. But Dr. Blair had one last card to play after his death. Contrary to social custom and Virginia law, he had left Kitty zero dollars or anything in his last will and testament. Kitty sued in James City County court for her lawful inheritance of the huge estate which included in Williamsburg “two parcels … houses and Lotts,”[23] “Tenements”[24] and elsewhere two large plantations and slaves (called “dower rights”) that James had inherited from his wealthy father, John Blair, Sr., at his death in November 1771. But Kitty’s latest suit was denied on February 14, 1773. Jefferson charged no fee to his friend, John, for providing the estate defense.[25] So Kitty took her appeal to the General Court of Virginia, where William Byrd III was co-judge along with (coincidentally) her old friend Lord Dunmore.

John Blair, Jr., the doctor’s brother and the estate executor, smelled a victory for Kitty. So he hired Edmund Pendleton and James Mercer as defense attorneys. He also again hired his old school friend Thomas Jefferson, but for reasons unclear Jefferson seemed to act as only a consultant to the other two attorneys. He did, however, take tons of notes during the trial, as always.

Kitty Eustace Blair was intent on winning. So she hired Virginia’s attorney general (and Jefferson’s cousin) John Randolph, who moonlighted as a lawyer, along with fiery orator and legend Patrick Henry. Jefferson probably groaned because although he and Henry agreed completely on issues of tyranny and liberty, Jefferson couldn’t stand the guy when it came to legal case preparation. He hated Henry’s pompous oratories and sloppy discipline of the facts, saying of his arguments during this case “Henry for the plaintiff avoided, as was his custom, entering the lists of the law, running wild in the field of fact.”[26]

The Final Round of Blair v. Blair

The final Blair v. Blair case with its celebrated cast finally rolled into General Court, and was argued and decided on November 3, 1773. Of note, much testimony seemed to revolve around the sexual aspects of the primary characters. In Jefferson’s summary notes, he wrote that “The evidence was voluminous and indecent.”[27] Nosey Parker would’ve loved it. But the introduction of an adultery charge wasn’t to be heard in court, since that particular charge died when Dr. Blair and the divorce died. Besides, it would be awkward when one of the adultery suspects was one of the presiding judges. Instead, the tantalizing subject of marital consummation was mostly on the docket, since that was the litmus test if there truly was a legitimate marriage, which in turn would entitle Kitty to her lawful share of the estate. The courtroom, as you can guess, was packed to the walls and overflowing to the outside.

Randolph advanced the weird theory that Kitty may have consummated the marriage physically, but not mentally. Henry had more of a reasonable legal argument that: a.) If the Blair’s had exchanged wedding vows and had retired to the “nuptial bed,”[28] then: b.) the whole thing could be considered a done deal. But: c.) if for some reason, a consummation hadn’t taken place because of “Dr. Blair’s impotence,”[29] then the legal doctrine of “tender and refusal”[30] applied. Meaning the wife was a player in the game, but the husband “opted out,” as it were.

The estate defense put on a good case stipulating over and over that the marriage was not consummated, a fact that both parties agreed on. The explicit details of consummation were not delved into by the defense because as Jefferson wrote “Ideas of decency require it to be secret.”[31] Much to the disappointment of the spectators.

But, surprise: Kitty won. She and her mom were jubilant. Margaret wrote to a family friend and lawyer in North Carolina, Thomas Burke, of her love of “my worthy friend [Patrick] Henry”; “He, they say, shined in the cause of justice backed by the law.”[32] Which I’m sure Jefferson would’ve wretched to have heard. The materialistic mother-in-law also noted to Burke, “All is settled respecting lands, negroes, money and the rest of the personal estate.”[33] No one questioned the possible bias of the judge, Lord Dunmore, who knew that once Kitty was financially rewarded, any other rumors of their earlier liaison adventures would be moot.

A month later, in December 1773 Kitty was cashing out by running this ad in the Virginia Gazette: “On the 1st Day of January next will be sold to the highest Bidder, at publick Auction, at the Plantation of Doctor James Blair, deceased, in the Forks of Hanover County, one Moiety of all the said James’s personal Estate at that Place, consisting of CATTLE, HOGS, PLANTATION UTENSILS, etc. etc. At the same Time and Place will be rented out, to the best Bidder, all my Dower in the said Blair’s Lands and Slaves; among the Slaves there are six Workers.” The ad continues that on “Tuesday the 4th of January next” a similar everything-must-go “publick Auction” will be held at the deceased Blair’s Chickahominy Plantation in New Kent. The ad is signed “Catherine Blair.”^[34]

Even though Jefferson and the defendant hadn’t prevailed in Blair v. Blair, he “… had laid the groundwork for the dissolution of the union between colonies and mother country which took place three and a half years later.”[35]

If you’re wondering about the sordid aftermath: Kitty herself wrote to Blair (signing the letter – “C. Blair”) almost exactly a year later, while still living in Williamsburg. She had written under her signature “How long I shall be distinguished by this name I cannot positively say.”[36]

She didn’t have to wait for too long. Kitty married well again on February 8, 1777 to a prominent, rising Georgian star named Maj. Seth John Cuthbert.[37] Cuthbert had been a distinguished officer in the 2nd Georgia Continental Battalion; within two years of his marriage to Kitty, he was president of the Supreme Executive Council of Georgia (1779), and Georgia’s state treasurer (1784-1786) following the Revolutionary War.

It appears that Kitty’s mother also moved with the newlyweds to Savannah, Chatham County, Georgia to all begin their wedded bliss there. A few months later, however, it was noticed that Kitty Blair Cuthbert was back in Williamsburg, husband-less this time. The complete story is unknown, but Major Cuthbert later married a woman named Mary Clay in 1785 and they had two sons in the mid-to-late 1780s. He died in Savannah in September 1788 and Mary Cuthbert was officially listed as his widow.

What happened to Kitty Cuthbert? No one knows. But it appears that Kitty died that same year (1788) because the November 13, 1788 edition of the Georgia Gazette listed Margaret Eustace of Chatham County petitioning to be estate executor of “Catherine Cuthbert (formerly Catherine Blair).” Two Cuthbert widows in 1788?

Seth Cuthbert had married his second wife, Mary, before the death of his first wife, Kitty, from whom there are no records of a divorce. The Cuthbert family blames the confusion on record errors.

John Blair, Jr., Jefferson’s schoolmate, made out better. Later, he was a Virginia delegate to the Constitutional Convention. Then in 1789, President George Washington nominated him to the United States Supreme Court.

[1] Thomas Jefferson to Henry Lee, May 8, 1825, Founders Online, National Archives.

[2] “During this time Adams served in a total of ninety committees, of which he chaired twenty. At the end of 1777 John Adams was simultaneously involved in twenty six committees, he was chairman of eight.” The John Adams Historical Society, http://www.john-adams-heritage.com/role-in-congress/ , accessed April 27, 2017.

[3] Composed of John Adams, Benjamin Franklin, Robert R. Livingston, Roger Sherman, and Thomas Jefferson.

[4] “… in the elementary books of public right, as Aristotle, Cicero, Locke, Sidney Etc.” Thomas Jefferson to Henry Lee, May 8, 1825, Founders Online, National Archives.

[5] Thomas Jefferson to James Madison, August 30, 1823, Founders Online, National Archives.

[6] Thomas Jefferson to Henry Lee, May 8, 1825, Founders Online, National Archives.

[7] John Adams to Timothy Pickering, August 6, 1822, Founders Online, National Archives,

[8] John Adams to Richard Rush, July 22, 1816, Founders Online, National Archives.

[9] Later in his life, Jefferson had listed what he’d considered his three most important cases: Howell v. Netherland (1770), Bolling v. Bolling (1771), and Blair v. Blair (1772).

[10] James Kranish, Flight from Monticello: Thomas Jefferson at War (New York: Oxford University Press, 2010), 32.

[11] “15 Aug 1770,” Charles Steuart Papers (MS 5040, f. 76); Charles Steuart Papers, Manuscript DMS 55.4, John D. Rockefeller, Jr. Library, Colonial Williamsburg Foundation; and in Frank L. Dewey, Thomas Jefferson, Lawyer (University Press of Virginia, Charlottesville, 1986), 59; Chapter 7 in the Dewey book, entitled “A Williamsburg Scandal: Notes on Divorce,” is considered the most thorough record of Blair v. Blair. Frank L. Dewey is a noted legal scholar.

[12] “3 May 1771,” Charles Steuart Papers (MS 5025, f. 265), and in Dewey, Thomas Jefferson, Lawyer, 59.

[13] Dewey, Thomas Jefferson, Lawyer, 59; also in “An Argument Before the General Court of Colonial Virginia“; Transcription from Jefferson’s original source summary notes: http://www.encyclopediavirginia.org/_An_Argument_Before_the_General_Court_of_Colonial_Virginia_1773, accessed April 29, 2017.

[14] “25 May 1772,” Charles Steuart Papers (MS 5027, ff. 159); and in Dewey, Thomas Jefferson, Lawyer, 59.

[15] “12 June 1772,” Charles Steuart Papers (MS 5027, ff. 178); and in Dewey, Thomas Jefferson, Lawyer, 60.

[16] This letter is in the papers preserved by St. George Tucker in the “Tucker-Coleman Papers, 1664-1945” in Williamsburg: “Tucker-Coleman Papers, Special Collections Research Center, Swem Library, College of William and Mary;” also in Dewey, Thomas Jefferson, Lawyer, 60.

[17] Ibid.

[18] “18 Nov 1772,” Charles Steuart Papers (MS 5027, ff. 249); Dewey, Thomas Jefferson, Lawyer, 62.

[19] “Nov. [25], 1772   Catharine Blair wife of James Blair M. D. (Wmsbgh.) v. the sd. James Blair. A bill in Chancery for a specific performance of the condn. of a bond which was to give her half the estate of def. Empld. by def. if it should be brot. on again.” “Memorandum Books, 1772,” Founders Online, National Archives.

[20] Jefferson often referred to Virginia as his “country.”

[21] Jefferson often lower-cased “god.”

[22] The Virginia Gazette (Purdie and Dixon) of December 31, 1772, announced: “Deaths: Doctor James Blair of this City: at Doctor Gilmour’s in Albemarle, where he lately went upon a Visit.”

[23] The death of James’s father in November 1771 left James and his siblings very well off. Along with large real estate holdings and slaves, James was left the “Sum of One thousand Pounds” and other sizable bequeathing in his will: http://research.history.org/DigitalLibrary/view/index.cfm?doc=ResearchReports%5CRR1493.xml&highlight=#s18 , accessed April 29, 2017.

[24] Ibid.

[25] “Feb. [14], 1773.   Catherine Blair (Wmsburgh.) v. John Blair (Wmsburgh.). Empld. by def. Charge no fee.” “Memorandum Books, 1773,” Founders Online, National Archives.

[26] “An Argument Before the General Court of Colonial Virginia;” Transcription from Jefferson’s original source summary notes: “An Argument before the General Court of Colonial Virginia Anne Blair widow of Dr. Blair v. John Blair his executor” (Jefferson mistakenly wrote “Anne” instead of “Catherine”. Dr. Blair had a sister named Anne). http://www.encyclopediavirginia.org/_An_Argument_Before_the_General_Court_of_Colonial_Virginia_1773, accessed April 28, 2017.

[27] Ibid.

[28] Ibid.

[29] Ibid.

[30] Ibid.

[31] Ibid.

[32] Mrs. Eustace to Thomas Burke, November 4, 1773, The Thomas Burke Papers, #104, Southern Historical Collection, The Wilson Library, University of North Carolina at Chapel Hill; also in Dewey, Thomas Jefferson, Lawyer, 64.

[33] Dewey, Thomas Jefferson, Lawyer, 64.

[34] The Virginia Gazette (Purdie & Dixon), December 30, 1773.

[35] Willard Sterne Randall, Thomas Jefferson – A Life (New York, Henry Holt and Company, 1993), 164.

[36] C. (Kitty) Blair to Thomas Burke, November 18, 1774, The Thomas Burke Papers; and in Dewey, Thomas Jefferson, Lawyer, 64.

[37] Called “J.J. Cuthbert” in William and Mary College Quarterly Historical Magazine, Volume 7, January 1899, No. 3, “Diary of John Blair,” 134.