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THOMAS JEFFERSON, SLAVERY, AND
SLAVES
Aaron Schwabach
I.
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Professor of Law, Thomas Jefferson School of Law. JD, University of California at
Berkeley, Boalt Hall School of Law. The author would like to thank the faculty, staff
and students of Thomas Jefferson School of Law for their interest in this project.
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INTRODUCTION: THOMAS JEFFERSON, SLAVERY,
AND SLAVES............................................................................... 2
II. JEFFERSON AND SLAVERY ..................................................... 3
A. Introduction ............................................................................... 3
B. Thomas Jefferson as a Slave Owner .......................................... 5
1. Sally Hemings .................................................................... 6
2. Edward Coles ..................................................................... 7
3. The Disintegration of Thomas Jefferson’s Slave
Community ......................................................................... 8
C. The Law of Slavery in Jefferson’s Time ................................... 9
1. Slavery in Virginia ........................................................... 10
2. Slavery in the Other Colonies, States, and Territories ..... 14
3. Jefferson in France: The Revolution and the
Declaration of the Rights of Man ..................................... 17
D. Thomas Jefferson and the Institution of Slavery ..................... 18
1. Thomas Jefferson as an Opponent of Slavery .................. 18
2. The Declaration of Independence .................................... 19
3. After the Revolution: Emancipation and Expatriation ..... 21
4. Jefferson on the Subject of Race ...................................... 21
E. Thomas Jefferson’s Impact on the Law of Slavery ................. 30
F. Conclusion ............................................................................... 33
III. THOMAS JEFFERSON AS AN UNSUCCESSFUL
ADVOCATE FOR FREEDOM IN HOWELL V.
NETHERLAND........................................................................... 34
A. Introduction ............................................................................. 34
B. The Participants ....................................................................... 34
1. Howell .............................................................................. 34
2. Jefferson ........................................................................... 35
3. Wythe ............................................................................... 36
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C. The Law .................................................................................. 37
1. The Statutes ....................................................................... 37
2. Jefferson’s Arguments....................................................... 39
D. Conclusion .............................................................................. 41
IV. THOMAS JEFFERSON & SALLY HEMINGS42
A. Sally Hemings ......................................................................... 43
B. The DNA Testing .................................................................... 45
C. The Official Story (Prior to November 1998)47
1. The “Character” Argument .................................................. 49
2. Jefferson and Hemings in Fiction......................................... 51
D. Reassessing Jefferson .............................................................. 52
E. The Public Reaction ................................................................ 54
F. Other Slave Owner/Slave Relationships.................................. 58
G. Conclusion: What Does the Truth About Jefferson &
Hemings Mean to Us? ............................................................. 59
I. INTRODUCTION: THOMAS JEFFERSON, SLAVERY, AND
SLAVES
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1. You in the back with your hand up, whispering “John Marshall!” You can sit
back down and put your hand down now.
2. Oh, and baseball: See, e.g., Paul Finkelman, Baseball and the Rule of Law
Revisited, 25 T. JEFFERSON L. REV. 17 (2002).
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A decade and a half ago, what was then the San Diego campus of
Western State University declared its independence from the parent
school and received accreditation from the American Bar Association
(ABA) as a new law school, under the name Thomas Jefferson School
of Law. Not surprisingly, questions soon arose among the students,
staff, and faculty about the appropriateness of the name. Its merits are
easy to spot: What one person, after all, has had a greater impact on the
shaping of the American legal system than Thomas Jefferson?1
But Jefferson was a controversial and divisive figure during his
own lifetime, and has not grown less so with time. Not everyone was
happy with the name; Paul Finkelman, an expert on questions of law,
race, and American history, and also on Thomas Jefferson,2 visited the
school and gave a talk with the title “Why Would Anyone Name a Law
School after Thomas Jefferson?”
Arguments may and do rage about Jefferson’s religious faith or
lack thereof, and on his views on federalism and states’ rights or on the
balance between government and individual liberty. Yet nothing about
Jefferson elicits as immediate and emotional a response as his peculiarly
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complex relationship to the institution of slavery, and consequently to
race.
To address these questions, in each of the three years following the
ABA’s grant of provisional approval to the newly-renamed Thomas
Jefferson School of Law, I wrote an article on some aspect of Thomas
Jefferson’s relationship to slaves and slavery. Now the school has
moved to new quarters; a building bearing Thomas Jefferson’s name has
become a fixture of the San Diego skyline. Not surprisingly, some of
the same questions that were asked about the name a decade and a half
ago are being asked again. Here, in a single package, are the original
three articles: Thomas Jefferson, with his ideals and failures, in the end,
lived up to some of them.
II. JEFFERSON AND SLAVERY3
A. Introduction
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3. Originally published, in slightly different form, as Aaron Schwabach, Jefferson
and Slavery, 19 T. JEFFERSON L. REV. 63 (1997).
4. Although Thomas Jefferson was not a doctor, a medical school in Philadelphia
is named after him. There are also community colleges named after Thomas
Jefferson in Hillsboro, Missouri; Watertown, New York; Steubenville, Ohio; and
Birmingham, Alabama.
5. Other law schools named after slave owners include five named after George
Washington (George Washington University, Washington University, University of
Washington, Washington and Lee University, and American University’s
Washington College of Law) and four named after John Marshall (John Marshall
Law School — Chicago, John Marshall Law School — Atlanta, Cleveland State
University’s Cleveland-Marshall College of Law, and William and Mary’s MarshallWythe School of Law). Marshall’s father owned twenty slaves, and Marshall wrote
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Who, really, was Jefferson? Well, Jefferson is the guy on the
nickel, the author of the Declaration of the Independence, the third
President of the United States. In every way but one, Thomas Jefferson
seemed like the ideal symbol for a law school; in fact, it was surprising
that a law school had not already been named after him.4 Not only was
Thomas Jefferson a lawyer, but perhaps more than any other individual,
he helped to create the American legal system. Jefferson was also a
model for scholars to emulate: The most brilliant mind of revolutionary
America, with the possible exception of Benjamin Franklin. Jefferson
was the Revolution’s Renaissance Man: fluent in at least five languages,
a correspondent of such scientific luminaries as Joseph Priestley, an
inventor, an architect, an engineer, a farmer, a revolutionary, and an
owner of slaves.5
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There’s the sticking point: How could the man who wrote that “all
men are created equal” keep others in slavery? This, more than any
other aspect of Jefferson’s life, has been the subject of the students’
concerns and questions. The author of the Declaration of Independence,
and the fervent opponent of slavery, was also a slave owner. Jefferson
thus embodied within himself what Frederick Douglass called “the
contradiction in the Constitution.”6
Slavery is among the most evil chapters in America’s history.
Slavery is of particular concern to lawyers and law students because it
was a creature of the legal system. We are accustomed to thinking of
the law as a protector of rights and liberties; the history of slavery shows
that law can be an equally powerful tool for oppression.
This article attempts to describe Jefferson’s relationship to the
institution of slavery, both as a slave owner and as a political figure; as
much as possible, it presents Jefferson’s views on slavery and on race in
his own words.7 This article also sets forth some of the notable features
of the law of slavery in Jefferson’s time and attempts to measure
Jefferson’s impact on slavery.
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opinions which helped secure the legal status of slavery at the highest level of the
American judicial system, including the infamous Antelope case, 23 U.S. (10 Wheat.)
66 (1825). George Wythe, a law professor who taught Thomas Jefferson and John
Marshall, owned slaves, but freed them all during his own lifetime and provided them
with financial assistance. See Paul D. Carrington, The Revolutionary Idea of
University Legal Education, 31 WM. & MARY L. REV. 527, 535 (1990). Another law
school bears the name of slave owner George Mason, who like Jefferson criticized
the institution of slavery but did not free his own slaves, and Catholic University’s
law school is named after Christopher Columbus.
6. Dr. Cecil Wayne Cone, The Constitution and the People of African Descent, 30
HOW. L.J. 1039 (1987).
7. It seems impossible to give an accurate impression without doing so. Some of
Jefferson’s opinions and expressions may offend readers, however. The author and
the Thomas Jefferson Law Review apologize in advance for any such offense.
(Jefferson’s writings are also presented with the original spellings and punctuation.)
Jefferson’s life has been more intensively studied than that of any American president
except, perhaps, Abraham Lincoln. In part this is because of Jefferson’s importance
to American history, and in part because Jefferson provided and organized extensive
documentation of his own life. He preserved more than 25,000 letters he received,
and 18,000 he wrote, with a 656-page index. He kept detailed records of even the
most trivial details of everyday life in record books, including the famous Farm
Book. The biographical information here, of course, can be little more than a
summary. The authoritative biography of Jefferson is DUMAS MALONE, JEFFERSON
AND HIS TIMES (1974); see also WINTHROP JORDAN, WHITE OVER BLACK: AMERICAN
ATTITUDES TOWARD THE NEGRO, 1550–1812 (1968); DUMAS MALONE, JEFFERSON THE
VIRGINIAN (1948); ROBERT MCCOLLEY, SLAVERY AND JEFFERSONIAN VIRGINIA (2d
ed. 1973); MERRILL D. PETERSON, THE JEFFERSON IMAGE IN THE AMERICAN MIND
(1960).
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B. Thomas Jefferson as a Slave Owner
In 1757, when Peter Jefferson died, his son Thomas was fourteen
years old.8 At the time of his death Peter Jefferson owned sixty slaves,9
but Thomas Jefferson would not inherit his father’s property for another
seven years.10 Shortly after Jefferson’s marriage to Martha Wayles
Skelton in 1771, Martha’s father, John Wayles, died, leaving the
Jeffersons 135 slaves.11
Thus, most of the slaves that Jefferson owned during his life came
to him through inheritance or were born into slavery at Monticello. He
did, however, purchase some slaves, including at least eight whom he
bought during his presidency.12 Twenty-five of Jefferson’s slaves were
household servants.13 The remaining slaves were agricultural laborers,
though for a while they also worked as weavers and as industrial
workers in Jefferson’s nail factory.14
In 1769, one of Jefferson’s slaves ran away, taking a horse.
Jefferson advertised in the Virginia Gazette, offering a reward for the
return of the slave, Sandy. Sandy was recaptured, and Jefferson later
sold him.15 In contrast, less than a year later Jefferson represented a
slave in a suit for freedom, arguing that “under the law of nature, all
men are born free, and every one comes into the world with a right to . .
. liberty . . . .”16
During the American Revolution, tens of thousands of American
slaves fled to the British. Among them were eleven women and eleven
men from Monticello.17
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Lucretia, Lucretia’s sons John and Randall, and Lucretia’s unborn child, Mary, and
Mary’s two sons. Mary and her two sons were described as “wife and children of
Moses,” apparently another of Jefferson’s slaves. Id. at 571.
13. Id. at 99.
14. BRODIE, supra note 8, at 365, 564.
15. Id. at 103–04. In 1781, Jefferson also sent his slave Martin Hemings to track
down and capture a runaway slave. Id. at 199.
16. Id. at 104; discussed in detail infra notes 178–235 and accompanying text.
17. BRODIE, supra note 8, at 169–70. Most of these former slaves, unfortunately,
died from epidemics in the British camps. Id. Jefferson wrote that if Cornwallis had
“taken” his slaves “to give them freedom, he would have done right.” Id.
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8. FAWN M. BRODIE, THOMAS JEFFERSON: AN INTIMATE HISTORY 21, 26 (1974).
9. Id. at 22.
10. Id. at 26.
11. Id. at 95–96.
12. The slaves purchased during Jefferson’s presidency were Isaac, Charles,
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When Jefferson’s daughter Martha married Thomas Randolph18 in
1790, Jefferson gave her 1,000 acres of land and 25 slaves.19 When his
daughter Maria married Jack Eppes in 1797, Jefferson gave her 819.5
acres, some livestock, and 26 slaves.20
To understand Jefferson’s relationship to the institution of slavery
in its historical context, it may be useful to look at the lives of slaves and
other slave owners. The most celebrated of Jefferson’s slaves, and the
one about whom the greatest wealth of information is available, was
Sally Hemings.21
Perhaps the most principled of Jefferson’s
slaveowning neighbors was Edward Coles.22
1. Sally Hemings
Thomas Jefferson’s wife, Martha Jefferson, died in 1782. It has
been alleged that at some time after Martha’s death, Jefferson engaged
in a lengthy relationship with his slave (and the half-sister of his wife)
Sally Hemings, and that the two had several children together.23 The
Sally Hemings question remains the topic of furious debate among
historians.24 Many legal scholars have accepted the story as true,25
18.
19.
20.
21.
22.
23.
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By his own account, a descendant of Pocahontas.
BRODIE, supra note 8, at 325.
Id. at 391.
See infra notes 23–34.
See infra notes 35–39.
The most complete source of information, though necessarily second-hand, is
the story told by Sally Heming’s (and, it would follow, Thomas Jefferson’s) son
Madison. Life Among the Lowly, No. 1, PIKE COUNTY (Ohio) REPUBLICAN, Mar. 13,
1873, reprinted in BRODIE, supra note 8, at 637. [hereinafter “Reminiscences of
Madison Hemings”].
24. Discussed in detail infra notes 237–349 and accompanying text. See also,
e.g., BRODIE, supra note 8; VIRGINIUS DABNEY, THE JEFFERSON SCANDALS: A
REBUTTAL (1981).
25. See, e.g., Linda L. Ammons, Mules, Madonnas, Babies, Bathwater, Racial
Imagery and Stereotypes: The African-American Woman and the Battered Woman
Syndrome, 1995 WIS. L. REV. 1003, 1035 n.127 (1995); Judith Olans Brown et al.,
The Mythogenesis of Gender: Judicial Images of Women in Paid and Unpaid Labor,
6 UCLA WOMEN’S L.J. 457, 504 n.210 (1996); A. Leon Higginbotham, Jr. & F.
Michael Higginbotham, “Yearning to Breathe Free”: Legal Barriers Against and
Options in Favor of Liberty in Antebellum Virginia, 68 N.Y.U. L. REV. 1213 (1993);
Arthur S. Miller, Book Review, 56 GEO. WASH. L. REV. 239, 244 (1987) (reviewing
MICHAEL KAMMEN, A MACHINE THAT WOULD GO OF ITSELF: THE CONSTITUTION IN
AMERICAN CULTURE (1986) and MICHAEL KAMMEN, SPHERES OF LIBERTY: CHANGING
PERCEPTIONS OF LIBERTY IN AMERICAN CULTURE (1986)); Charles D. Watts, Jr., In
Critique of a Reductivist Conception and Examination of “The Just Organization,”
50 WASH. & LEE L. REV. 1515, 1524 n.31 (1993).
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while others seem inclined to reject the idea.26 Still others consider the
possibility while leaving the final resolution of the matter to the
historians.27 The relationship between Thomas Jefferson and Sally
Hemings has also been a favorite topic in recent fiction.28
If the relationship existed, the legal structures of Virginia ensured
that it could not be formally acknowledged.29 Not only would Virginia
law have prohibited a marriage between Sally Hemings and Thomas
Jefferson during their lifetimes, similar marriages were outlawed until
the U.S. Supreme Court struck down Virginia’s anti-miscegenation
statute in 1967, more than 100 years after the ratification of the
Thirteenth Amendment.30
In 1826, after Jefferson’s death, Monticello had to be sold to pay
the debts of Jefferson’s estate. Among the “assets” that were liquidated
were Jefferson’s slaves, minus certain members of the Hemings family
who he had successfully petitioned his creditors for permission to
emancipate.31 Sally Hemings herself was freed by Thomas Jefferson’s
daughter, Martha Randolph, after Jefferson’s death.32 The 1830 census
listed an Eston Hemings (one of Sally Hemings’ sons, freed in
Jefferson’s will) as a white man and the head of a household in
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26. See, e.g., Hartwell Harris Beall, Comment, Can Anyone Own a Piece of the
Clock?: The Troublesome Application of Copyright Law to Works of Historical
Fiction, Interpretation, and Theory, 42 EMORY L.J. 253, 292–93 (1993); cf. Rodney
A. Smolla, Emotional Distress and the First Amendment: An Analysis of Hustler v.
Falwell, 20 ARIZ. ST. L.J. 423, 454 n.165 (1988) (“Thomas Jefferson was forced to
endure vicious rumors spread by general gossip as well as by his political enemies.
For example, he was drawn as . . . the keeper of a slave harem who auctioned his
mulatto offspring into slavery.”).
27. See, e.g., James Lindgren, Measuring the Value of Slaves and Free Persons in
Ancient Law, 71 CHI.-KENT L. REV. 149, n.1 (1995).
28. See, e.g., MAX BYRD, JEFFERSON: A NOVEL (1993); BARBARA CHASE-RIBOUD,
SALLY HEMINGS (1979); STEVE ERICKSON, ARC D’X (1993); BRUCE STERLING, “We
See Things Differently,” reprinted in GLOBALHEAD (1994); JEFFERSON IN PARIS
(Merchant Ivory 1995). Works of fiction on the topic have even given rise to
intellectual property litigation. See Burgess v. Chase-Riboud, 765 F. Supp. 233 (E.D.
Penn. 1991).
29. See generally Kenneth James Lay, Sexual Racism: A Legacy of Slavery, 13
NAT’L BLACK L.J. 165, 166–68 (UCLA ed. 1993).
30. Loving v. Virginia, 388 U.S. 1 (1967). For a discussion of the law and the
inherently racist concept of “miscegenation,” see Lay, supra note 29; Emily Field
Van Tassel, “Only the Law Would Rule Between Us”: Antimiscegenation, the Moral
Economy of Dependency, and the Debate over Rights after the Civil War, 70 CHI.KENT L. REV. 873 (1995).
31. BRODIE, supra note 8, at 631.
32. Id. at 630–31.
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Albemarle County, Virginia.33 This household included a white woman
between fifty and sixty years of age — almost certainly Sally
Hemings.34
2. Edward Coles
Edward Coles, a neighbor of Jefferson, was born into a wealthy
slaveowning family. Despite the opposition of his family, he eventually
managed to sell his property in Virginia and move himself and his slaves
to Illinois, where they became free. He then provided each former slave
family with 160 acres of land, as well as training in farming techniques
and skilled crafts.35 In 1814, Coles wrote to Jefferson asking for his
public assistance for the project.36 Jefferson predicted that Coles’
project would fail, and took him to task for suggesting it:
For men probably of any color, but of this color we know, brought
from their infancy without necessity for thought or forecast, are by
their habits rendered incapable as children of taking care of
themselves, and are extinguished promptly whenever industry is
necessary for raising young. In the meantime they are pests in
37
society by their idleness . . . .
But in the mean time, are you right in abandoning this property,
38
and your country with it? I think not.
In part, though, Jefferson seems to have felt that he was simply too
old for any new crusades: “[T]his, my dear sir, is like bidding old Priam
to buckle the armour of Hector . . . . This enterprise is for the young . . .
.”39
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3. The Disintegration of Thomas Jefferson’s Slave Community
Jefferson apparently believed that his slaves were safer under his
wardship than they would have been on their own. The flaw in this
paternalistic approach, of course, was that the safety of the slaves at
Monticello depended on the prosperity of their master. Unlike George
Washington, who inherited a great fortune and steadily added to it
33.
34.
35.
36.
37.
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Id. at 634.
Id.
Id. at 584.
Id.
Letter from Thomas Jefferson to Edward Coles (Aug. 25, 1814), in THOMAS
JEFFERSON: WRITINGS 1343, 1345–46 (Merrill D. Peterson ed., 1984) [hereinafter
WRITINGS].
38. Id. at 1346. By “your country” Jefferson probably meant Virginia.
39. Id. at 1345.
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throughout his life,40 Jefferson inherited a great fortune and steadily
diminished it throughout his life, eventually dying bankrupt. At some
point, it became impossible for Jefferson to emancipate his slaves even
if he had wished to; he was so heavily encumbered with debt that they
were no longer his to emancipate.41
Jefferson was able to protect most of the slaves at Monticello from
sale during his lifetime. He had mortgaged them to pay for the
remodeling of Monticello,42 but managed to pay off the mortgage.43
After the Panic of 1819, Jefferson became liable for a $20,000 loan
which he had cosigned for Cary Nicholas, the governor of Virginia. To
make payments on the debt, he sold many of his slaves to his grandson,
Francis Eppes.44 After Jefferson’s death, however, Monticello and its
contents, including the remaining slaves, were sold to pay Jefferson’s
debts. The slaves were sold at auction.45
Jefferson emancipated a few slaves during his life, and was able to
obtain special dispensation from his creditors to emancipate a few others
in his will.46 All of the slaves freed by Jefferson were members of the
Hemings family, although not all members of the Hemings family were
freed.47
Jefferson may also have acquiesced in the escape of several other
slaves, allowing them to avoid his creditors. His granddaughter, Ellen
Randolph Coolidge, wrote that she remembered “four instances of this,
three young men and a girl, who walked away and staid away — their
whereabouts was perfectly known but they were left to themselves —
for they were white enough to pass for white.”48 The transfers of slaves
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40. Washington provided in his will that his slaves should be emancipated on his
wife’s death. George Washington, Last Will and Testament, July 9, 1799, reprinted
in THE WASHINGTON PAPERS 105–18 (Saul K. Padover ed., 1955).
41. Virginia law prohibited a slave owner from emancipating his or her slaves “to
the prejudice of then existing creditors.” Woodley v. Abbey, 9 Va. (5 Call) 336
(1805).
42. BRODIE, supra note 8, at 375.
43. Id. at 583.
44. Id. at 617.
45. Id. at 634.
46. Id. at 631.
47. During his life, he freed Sally Hemings’ brothers, Robert and James Hemings.
Her sister Thenia Hemings, however, he sold to James Monroe. Id. at 322, 379–80. In
his will, he freed his valet Burwell, who was Sally Hemings’ nephew, and Joe Fossett,
another nephew. His will also freed Sally Hemings’ half-brother John Hemings, and two
of her sons, Madison and Eston Hemings. BRODIE, supra note 8, at 631.
48. Id. at 384.
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to his daughters and grandsons may also have helped to shield them
from his creditors.
C. The Law of Slavery in Jefferson’s Time
Jefferson lived during the middle period of slavery in America,
after the “peculiar institution”49 was solidly established but before the
extremities of polarization and polemic which characterized the three
decades leading up to the Civil War. Many excellent works on the topic
have been produced by historians and legal scholars. Perhaps the best
study of the origins of slavery in American law is Judge Higginbotham’s
In the Matter of Color.50
1. Slavery in Virginia
Virginia, Higginbotham points out, was the leader in developing
the legal institution of slavery in America.51 By the time of Thomas
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49. See generally KENNETH STAMPP, THE PECULIAR INSTITUTION: SLAVERY IN THE
ANTEBELLUM UNITED STATES (1956).
50. A. LEON HIGGINBOTHAM, JR., IN THE MATTER OF COLOR: RACE & THE
AMERICAN LEGAL PROCESS (1978); see also, e.g., STAMPP, supra note at 49; HOWARD
ZINN, A PEOPLE’S HISTORY OF THE UNITED STATES 23–246 (1980); Derrick Bell,
Learning the Three “I’s” of America’s Slave Heritage, 68 CHI.-KENT L. REV. 1037
(1993); Jonathan A. Bush, Free to Enslave: The Foundations of Colonial American
Slave Law, YALE J.L. & HUMAN. 417 (1993); Anthony R. Chase, Race, Culture, and
Contract Law: From the Cottonfield to the Courtroom, 28 CONN. L. REV. 1, 13–32
(1995); Paul Finkelman, The Centrality of the Peculiar Institution in American Legal
Development, 68 CHI.-KENT. L. REV. 1009 (1993); George A. Levesque, Slavery in
the Ideology and Politics of the Revolutionary Generation, 1750–1783, 30 HOW. L.J.
1051 (1987); Bradley J. Nicholson, Legal Borrowing and the Origins of Slave Law in
the British Colonies, 38 AM. J. LEGAL HIST. 38 (1994). See generally Symposium,
We The People: A Celebration of the Bicentennial of the United States Constitution,
30 HOW. L.J. 915 (1987); Symposium, The Law of Slavery, 68 CHI.-KENT L. REV.
1009 (1993); Symposium, The Law of Freedom, Part II, 70 CHI.-KENT L. REV. 865
(1995). On late-period slavery, see Barbara Holden-Smith, Lords of Lash, Loom and
Law: Justice Story, Slavery, and Prigg v. Pennsylvania, 78 CORNELL L. REV. 1086
(1993).
51. HIGGINBOTHAM, supra note 50, at 19; see also A. Leon Higginbotham, Jr. &
Greer C. Bosworth, “Rather Than the Free”: Free Blacks in Colonial and
Antebellum Virginia, 26 HARV. C.R.-C.L. L. REV. 17 (1991); A. Leon Higginbotham,
Jr. & F. Michael Higginbotham, “Yearning to Breathe Free”: Legal Barriers Against
and Options in Favor of Liberty in Antebellum Virginia, 68 N.Y.U. L. REV. 1213
(1993); A. Leon Higginbotham, Jr. & Anne F. Jacobs, The “Law Only As an
Enemy”: The Legitimization of Racial Powerlessness Through the Colonial and
Antebellum Criminal Laws of Virginia, 70 N.C. L. REV. 969 (1992); A. Leon
Higginbotham & Barbara K. Kopytoff, Property First, Humanity Second: The
Recognition of the Slave’s Human Nature in Virginia Civil Law, 50 OHIO ST. L.J. 511
(1989).
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Jefferson’s birth in 1743, the Virginia legislature had already established
that slaves were “real estate” held in fee simple, except in the case of
slaves brought into Virginia by merchants; these slaves were chattels
until sold.52 By the time Jefferson became a slave owner in 1764, this
statute had been repealed, making slaves chattels.53
In Virginia, a slaveholder could not simply choose to emancipate
his slaves. He first had to pay for the transportation of the freed slave
out of Virginia or pay a penalty of ten pounds.54 Slaves could only be
manumitted for performing some public service and with the approval
of the governor or the legislature; improperly manumitted slaves could
be seized and re-enslaved.55 Jefferson attempted to legalize the
manumission of slaves in 1769.56 In 1782, however, the legislature
enacted a liberal manumission law which Jefferson had helped draft.
This statute required only that the manumission be in writing.57
A slave in Virginia was not a legal “person.” To kill a slave in the
course of “correction” was not a crime.58 A slave, however, could not
lift his or her hand “in opposition against” any white person.59 Slaves
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52. 3 WILLIAM W. HENING, STATUTES AT LARGE OF VIRGINIA 333–35 (1819–20),
cited in HIGGINBOTHAM, supra note 50, at 52.
53. HIGGINBOTHAM, supra note 50, at 412 n.88.
54. 3 HENING, supra note 52, at 87, cited in HIGGINBOTHAM, supra note 50, at 48.
55. 3 HENING, supra note 52, at 537; and 4 HENING, supra note 52, at 132, cited in
HIGGINBOTHAM, supra note 50, at 48–49. This law reached its harshest form a
quarter century after Jefferson’s death. In 1850–1851, Virginia adopted a new
constitution, discarding the constitution Jefferson had written. The new constitution
provided that any slave emancipated after the date of its adoption “shall forfeit their
freedom by remaining in the commonwealth more than twelve months after they
become actually free, and shall be reduced to slavery under such regulations as may
be prescribed by law . . . .” The constitution also prohibited legislative emancipation
of slaves. VA. CONST. of 1850–1851, cited in HIGGINBOTHAM, supra note 50, at 49–
50.
56. This was the same year in which he advertised for the return of the runaway
slave Sandy. See infra notes 192–193 and accompanying text.
57. 11 HENING, supra note 52, at 39, cited in HIGGINBOTHAM, supra note 50, at
49; see also BRODIE, supra note 8, at 570. However, where a will or deed made prior
to the 1782 act providing for the emancipation of a slave was unlawful at the time it
was made, it was void even if the death of the testator occurred after the passage of
the act. Moses v. Denigree, 27 Va. (6 Rand.) 561 (1828). But see Pleasants v.
Pleasants, 6 Va. (2 Call) 319 (1800). In 1781, a Quaker devised slaves to his monthly
meeting to be manumitted; the actual manumission occurred in July, 1782, after the
passage of the act, and was thus valid. Charles v. Hunnicut, 9 Va. (5 Call) 311
(1804).
58. 3 HENING, supra note 52, at 459, cited in HIGGINBOTHAM, supra note 50, at
55.
59. Id.
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could not carry weapons or keep cattle.60 Any person could kill a
runaway slave. If a runaway slave were captured, the court might order
that he or she be dismembered.61 The government directly subsidized
slavery: If a runaway slave were “destroyed,” the owner would be “paid
by the public.”62
Black persons, slave or free, could not testify in court against
whites, although they could testify against other black persons.63 While
the penalty for a slave who attempted to ravish a white woman was
castration,64 the requirement of a white witness effectively legalized the
rape of black women, children and men by white men.65 Freedom
would have provided no protection against this form of assault. In fact,
any crime committed against a black person would go unpunished
unless witnessed and testified to by a white person.66 Even in the rare
60. HIGGINBOTHAM, supra note 50, at 56.
61. 3 HENING, supra note 52, at 460–61, cited in HIGGINBOTHAM, supra note 50,
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at 56. Dismemberment was banned in most cases after 1769, but castration persisted.
62. 3 HENING, supra note 52, at 461, cited in HIGGINBOTHAM, supra note 50, at
57. In effect, this provided the slave owner with insurance without premium.
63. 1 SHEPHERD, THE STATUTES AT LARGE OF VIRGINIA ch. 41, at 123 (1792),
cited in HIGGINBOTHAM, supra note 50, at 58; see also Thomas D. Morris, Slaves and
the Rules of Evidence in Criminal Trials, 68 CHI.-KENT L. REV. 1209 (1993). For
more information on the status of free African-Americans living in Virginia before
the Civil War, see Higginbotham & Bosworth, supra note 51; Ellen D. Katz, AfricanAmerican Freedom in Antebellum Cumberland County, Virginia, 70 CHI.-KENT L.
REV. 927 (1995).
64. 9 HENING, supra note 52, at 358, cited in HIGGINBOTHAM, supra note 50, at
58.
65. Since a slave lacked any ability or legal right to refuse a master’s sexual
advances, any intercourse, whether by force or otherwise, was consensual. “The
power of the master [was] absolute, and the slave [could] not resist, nor be heard if he
complain[ed] of the abuse of this power.” Poydras v. Mourain, 9 La. 492 (1836).
One of the more peculiar horrors created by the “peculiar institution” was that
masters who impregnated their slaves would thus own their own children, and could
sell them. The status of a child was universally held to follow that of the mother, in
contrast to the English rule. See, e.g., McCutchen v. Marshall, 33 U.S. (8 Pet.) 220
(1834); Maria v. Surbaugh, 23 Va. (2 Rand.) 228 (1824); Catin v. D’Orgenoy’s Heirs,
8 Mart. (o.s.) 218 (La. 1820); Rawlings v. Boston, 3 H. & McH. 139 (Md. 1793). But
see Commonwealth v. Halloway, 2 Serg. & Rawle 305 (Pa. 1816); Benjamin v.
Armstrong, 2 Serg. & Rawle 392 (Pa. 1816) (where pregnant slave escapes to
Pennsylvania, child born in Pennsylvania is free). One slave state (Delaware) held
that a father could not own his own children, nor sell them. Wilson v. Waples, 3 Del.
(3 Harr.) 270 (1840); Tindal v. Hudson, 2 Del. (2 Harr.) 441 (1838).
66. For discussions of similar atrocities in Louisiana, see inter alia, Judith K.
Schafer, “Details Are of a Most Revolting Character”: Cruelty to Slaves as Seen in
Appeals to the Supreme Court of Louisiana, 68 CHI.-KENT L. REV. 1283 (1993);
Judith K. Schafer, Sexual Cruelty to Slaves: The Unreported Case of Humphreys v.
Utz, 68 CHI.-KENT L. REV. 1313 (1993). Those suits arising from injuries to slaves
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cases where such testimony was forthcoming, a master could not be
indicted or convicted for beating his own slave.67
Jefferson reported, in discussing proposed revisions to the criminal
code of Virginia, that “[s]laves guilty of offences punishable in others
by labor, [were] to be transported to Africa, or elsewhere, as the
circumstances of the time admit, there to be continued in slavery.”68
While white people could almost never be punished for harming
slaves, they could be punished for helping slaves. After 1805, anyone
who assisted a slave in escaping or attempting to escape could be fined
between $100 and $500, and sentenced to a prison term of two to four
years.69 The only form of action which a slave could maintain was a
suit for freedom.70 After 1795, however, any person who assisted a
slave in pursuing such a claim would, if the claim were unsuccessful,
“forfeit $100 to the owner of the slave.”71 In cases where such actions
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were almost exclusively suits by the owners of those slaves for damage to their
“property.” (Humphreys v. Utz falls into this category.) See also Garey v. Johnson, 2
D.C. (2 Cranch) 107, 10 F.Cas. 1 (C.C.U.S. 1814) (No. 5420); White v. Chambers, 2
S.C.L. (2 Bay) 70 (1796).
67. Commonwealth v. Turner, 26 Va. (5 Rand.) 678 (1827).
68. THOMAS JEFFERSON, NOTES ON THE STATE OF VIRGINIA, in WRITINGS, supra
note 37, at 271; see also Thomas Jefferson, A Bill for Proportioning Crimes and
Punishments, in WRITINGS at 349, 364. “Slaves guilty of any offence punishable in
others by labour in the public works, shall be transported to such parts in the WestIndies, South-America, or Africa, as the Governor shall direct, there to be continued
in slavery.” Id.
69. BRODIE, supra note 8, at 422.
70. Higginbotham & Kopytoff, supra note 51, at 512.
71. JUNE PURCELL GUILD, BLACK LAWS OF VIRGINIA 68 (1969), cited in
HIGGINBOTHAM, supra note 50, at 85. Even those slaves who somehow managed to
institute such an action were at a severe disadvantage, as strong evidentiary
presumptions in many states favored the master. For example, dark skin combined
with a state of servitude constituted prima facie evidence that one was a slave.
William v. Van Zandt, 7 U.S. (3 Cranch) 55, 29 F.Cas. 1286 (1826) (No. 17,685); see
also Davis v. Curry, 5 Ky. (2 Bibb) 238 (1810); Trongott v. Byers, 5 Cow. 480 (N.Y.
1826); cf. Adelle v. Beauregard, 1 Mart. (o.s.) 183 (La. 1810); Hall v. Mullin, 5 H. &
J. 190 (Md. 1821) (a long period of de facto freedom might create a presumption of
freedom); Gobu v. Gobu, 1 N.C. 188 (1802) (presuming that “black” persons are
slaves, but “persons of color” are free); Miller v. Reigne, 20 S.C.L. (2 Hill) 592 (S.C.
1835) (holding that a 20-year period of freedom created the presumption of freedom).
In some states, skin color alone was sufficient to establish the presumption. For other
evidentiary presumptions in suits for freedom in Virginia, see George v. Parker, 25
Va. (4 Rand.) 659 (1826); Abraham v. Matthews, 20 Va. (6 Munf.) 159 (1818);
Garnett v. Sam, 19 Va. (5 Munf.) 542 (1817); Hook v. Pagee, 16 Va. (2 Munf.) 379
(1811); Henderson v. Allen, 11 Va. (1 Hen. & M.) 235 (1807); Hudgins v. Wright, 11
Va. (1 Hen. & M.) 134 (1806). Parol evidence was inadmissible to show
emancipation or emancipatory intent. Victoire v. Dussuau, 4 Mart. (o.s.) 212 (La.
1816); Beard v. Poydras, 4 Mart. (o.s.) 348 (La. 1816). But see Vaughan v. Phebe, 8
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were tried before a jury, abolitionists were prohibited from serving on
the jury.72
2. Slavery in the Other Colonies, States, and Territories
During the period from Jefferson’s birth to the war for
independence, slavery was legal in all but one of the thirteen colonies.73
In 1772, Lord Mansfield’s decision in Somerset v. Stuart74 ended slavery
within England itself. At the same time, abolitionist sentiment in
England was gathering strength. Thus, the Revolution can be seen as a
struggle to retain the institution of slavery, much like the secession of
the Southern states in 1861.
After independence, the northern states abandoned slavery. In
1780, Pennsylvania outlawed slavery by statute.75 The statute provided
for gradual, rather than immediate, emancipation.76 Several other states,
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Tenn. (Mart. & Yer.) 5 (1827) (reputation of descent from Native American ancestors
admissible). Rarely did a presumption favor a slave. But see Rankin v. Lydia, 9 Ky.
(2 A.K. Marsh.) 467 (1820) (registry of a slave in Indiana estopped former owner
from asserting ownership in Kentucky). Actions for freedom were, however, treated
as actions in forma pauperis, and “the same strictness as to form [was] not
required[.]” McMichen v. Amos, 25 Va. (4 Rand.) 134 (1826).
72. GUILD, supra note 71, cited in HIGGINBOTHAM, supra note 50, at 85. Slaves
tried for crimes were not entitled to a jury trial. See United States v. Wright, 1 D.C.
(1 Cranch) 123, 28 F.Cas. 790 (1803) (No. 16,771).
73. The exception was Rhode Island, which had been founded as a breakaway
colony from Massachusetts by the idealists Roger Williams and Anne Hutchinson,
both exiled from the Massachusetts Bay Colony. The new colony prohibited slavery,
tolerated Quakers and Jews, and endeavored to maintain peaceful relations with the
Pequod Indians, who had been the victims of massacre and enslavement by the
Massachusetts settlers. Miscegenation was also tolerated. Nonetheless, by the time
of the Revolution Williams and Hutchinson were two centuries gone, and the
prohibitions against slavery were not enforced. See generally 4 HELEN CATTERALL,
JUDICIAL CASES CONCERNING AMERICAN SLAVERY 448 (1968), cited in
HIGGINBOTHAM, supra note 50, at 459 n.3; HIGGINBOTHAM, supra note 50, at 313; see
also THE WORLD ALMANAC AND BOOK OF FACTS 674 (1996). By 1790, Rhode
Island’s population was 6.3% black; in no other New England state was the
percentage of black population greater than 2.3%. HIGGINBOTHAM, supra note 50, at
458 n.2.
74. 12 George III A.D. (1771–1772) Lofft, 20 HOW. ST. TR. 1. For a detailed
discussion of the case, see HIGGINBOTHAM, supra note 50, at 313–68.
75. HIGGINBOTHAM, supra note 50, at 299–306.
76. Id. The statute also served as a model for emancipation statutes in several
other northern states. Id. at 310. At least one slave state (Kentucky) honored
Pennsylvania’s statute with respect to slaves who were brought into the state from
Pennsylvania before achieving freedom. Gentry v. McMinnis, 33 Ky. (3 Dana) 382
(1835); Barrington v. Logan’s Admirers, 32 Ky. (2 Dana) 432 (1834) (both holding
that persons born of slave mothers in Pennsylvania after 1780 were free, though
subject to apprenticeship until age 28, and must be freed in Kentucky upon reaching
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including Rhode Island (1784), Connecticut (1784 and 1797), and New
Jersey (1804) adopted gradual emancipation statutes based on the
Pennsylvania model.77 In New York, a series of statutes gradually
reduced the scope of slavery, until an 1817 statute provided that all
slaves in the state would be freed by 1827, a year after Jefferson’s
death.78 In Massachusetts, slavery faded away after the Revolution, as a
result of the 1780 constitution79 and the 1783 Quock Walker case,80 so
that by 1790 there was no remaining slave population.81 In Vermont,
slavery was abolished in the constitution at the time of statehood.82
Between 1781 and 1784, New York, Connecticut, and Virginia
ceded their claims to lands northwest of the Ohio River to the United
States.83 Thomas Jefferson drafted the Ordinance of 178484 to govern
this new Northwest Territory, including a clause to the effect that “after
the year 1800 there shall be neither slavery nor involuntary servitude in
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age 28). But see Frank v. Milam’s Executor, 4 Ky. (1 Bibb) 615 (1809) (where a
mother was registered as a slave in Pennsylvania, making her a slave for life, and
then brought to Kentucky without her consent, she and her issue born in Kentucky
remained slaves notwithstanding subsequent changes in Pennsylvania law).
77. Higginbotham & Higginbotham, supra note 25, at 1219 n.26. Persons born
after the passage of these statutes were free at birth. See, e.g., Town of Exeter v.
Town of Warwick, 1 R.I. 63 (1834). In New Jersey, though, a court would later hold
that slavery was not abolished by the constitution of 1844; it existed until abolished
by statute in 1846. State v. Post, 20 N.J.L. 368 (1845).
78. HIGGINBOTHAM, supra note 50, at 143–47. The gradual nature of abolition in
each of the northern states was summed up by Frederick Douglass when he said,
“Like the movement of the sea, no man can tell where one wave begins and another
ends. The chains of slavery with us were loosened by degrees.” Id. at 310.
79. BILL OF RIGHTS TO THE MASS. CONST. OF 1780, arts. I, X, XI, reprinted in 1
HENRY STEELE COMMAGER & MILTON CANTOR, DOCUMENTS IN AMERICAN HISTORY
107–10 (1988).
80. Commonwealth v. Jennison (1783). While the case was not reported, Chief
Justice Cushing’s notebook was preserved, and the decision was later published in 1
COMMAGER & CANTOR, supra note 79, at 110.
81. HIGGINBOTHAM, supra note 50, at 458 n.2.
82. Higginbotham & Higginbotham, supra note 25, at 1219 n.25; see also
Selectmen of Windsor v. Jacob, 2 Tyl. 192 (Vt. 1802).
83. See, e.g., Virginia’s Cession of Western Lands to the United States, Dec. 20,
1783, in COMMAGER & CANTOR, supra note 79, at 120–21.
84. Report of Government for the Western Territory, Apr. 23, 1784, XXVI
Journals of the Continental Congress 275, reprinted in COMMAGER & CANTOR, supra
note 79, at 121–23. Jefferson’s proposal also contained one other provision that was
not adopted: He proposed that ten states should be created out of the territory, and
that these future states be given names such as Polypotamia, Assenissipia, and
Metropotamia. COMMAGER & CANTOR, supra note 79, at 122 (giving “Polypotamia”
as the even more unlikely “Dolypotamia”).
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any of the sd. states.”85 This clause was defeated by a single vote, and
the Ordinance never took effect.86 In 1787, however, Congress enacted
the Northwest Ordinance, Article 6 of which provided as follows:
“There shall be neither slavery nor involuntary servitude in the said
territory, otherwise than in the punishment of crimes whereof the party
shall have been duly convicted[.]”87 In the Northwest Territory and the
new states which were created out of it,88 slavery was thus barred from
the outset, in large part as a result of Jefferson’s efforts.
The United States acquired other new states and territories during
Jefferson’s lifetime, however. Kentucky and Tennessee joined the
Union as slave states in 1792 and 1796, respectively.89 The Mississippi
Territory entered the Union as two slave states, Mississippi in 1817 and
Alabama in 1818.90 A year later, Florida was taken from Spain. The
most significant territorial gain was also the result of Jefferson’s efforts,
the Louisiana Purchase.
In contrast to his efforts to prevent the spread of slavery into the
Northwest Territory, Jefferson apparently made no attempt to prevent its
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85. COMMAGER & CANTOR, supra note 79, at 122. The defeat of the Ordinance is
one of the greatest but least-known tragedies in American history. Had it succeeded,
slavery would have been effectively confined to a few southern states, which would
soon (no later than the 1820s) have been so severely outnumbered that Congressional
action or constitutional amendment could have outlawed slavery completely.
86. Id.; see also BRODIE, supra note, 8 at 573. The Ordinance required seven
votes for its ratification, and would have succeeded but for the illness of John Beatty,
the delegate from New Jersey, who was unable to attend and cast his vote. Jefferson
lamented that “[t]he voice of a single individual . . . would have prevented this
abominable crime from spreading itself over the new country. Thus we see the fate
of millions unborn hanging on the tongue of one man, and Heaven was silent in that
awful moment!” Letter from Thomas Jefferson to Jean-Nicolas Demeunier, quoted in
BRODIE, supra note 8, at 231.
87. The Northwest Ordinance, July 13, 1787, reprinted in COMMAGER & CANTOR,
supra note 79, at 128, 132. The terms are, of course, nearly identical to those of the
Thirteenth Amendment, and also to those used by Chief Justice Cushing in the Quock
Walker case, supra note 80: “[T]here can be no such thing as perpetual servitude of a
rational creature, unless his liberty is forfeited by some criminal conduct . . . .” The
Northwest Ordinance was, however, more limited in its geographic scope than the
Ordinance of 1784. On the federal government’s power to regulate territories of the
United States, see U.S. CONST. art. IV, § 3, cl. 2; see generally Marybeth Herald,
Does the Constitution Follow the Flag Into United States Territories or Can It Be
Separately Purchased and Sold?, 22 HASTINGS CONST. L.Q. 707, 713–19 (1995).
88. Three states were created out of the Northwest Territory during Jefferson’s
lifetime: Ohio, 1803; Indiana, 1816; and Illinois, 1818. Michigan, Wisconsin, and
Minnesota became states in 1837, 1848, and 1858, respectively. RAND MCNALLY
HISTORICAL ATLAS OF THE WORLD 171 (1981).
89. WORLD ALMANAC, supra note 73, at 663, 676.
90. RAND MCNALLY HISTORICAL ATLAS, supra note 88, at 171.
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spread in the Louisiana Purchase, although he did prevent the further
importation of slaves.91 In the heavily settled area around New Orleans,
slavery was already well established.
The acquisition of Louisiana by the United States and the
subsequent ban on the slave trade92 prevented the importation of slaves
into New Orleans, causing considerable discontent among slave
owners.93 Jefferson suggested that this discontent might be alleviated
“by Congress permitting them to receive slaves from the other States,
which, by dividing that evil, would lessen its danger[.]”94
3. Jefferson in France: The Revolution and the Declaration of the
Rights of Man
After the Revolution, Jefferson might have freed his slaves by
moving them to a free state or to the Northwest Territory, as Coles did.95
For the six years immediately following the Revolution, Jefferson was
the U.S. minister to France, a country in which slavery was illegal.96
When he arrived in 1783, he was accompanied by his slave James
Hemings.97 In 1787, he was joined there by his slave Sally Hemings.98
Jefferson left France after the storming of the Bastille but before
the executions of Louis XVI and Marie Antoinette.99 To many of the
French revolutionaries, Jefferson was a hero who had overthrown
monarchic rule in his own country and created a republic. He worked
with Lafayette on the Declaration of the Rights of Man and of the
Citizen,100 Article 1 of which declares in part, “Men are born and remain
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91. Cession of Louisiana, Apr. 30, 1803 (U.S.-Fr.), 1 Malloy 508, partially
reprinted in COMMAGER & CANTOR, supra note 79, at 190; see also BRODIE, supra
note 8, at 573.
92. See infra notes 165–169 and accompanying text.
93. Letter from Thomas Jefferson to John Dickinson (Jan. 13, 1807), in
WRITINGS, supra note 37, at 1169.
94. Id. In discussing the Missouri Compromise, Jefferson also expressed the idea
that this “dilution” of slavery would prove beneficial to the slaves.
95. See supra notes 35–39 and accompanying text.
96. See BRODIE, supra note 8, at 302–03.
97. Id. at 235.
98. Id. at 277. Jefferson was, of course, aware of the illegality of slavery, having
translated the Marquis de Condorcet’s pamphlet on the subject, but did nothing to
free James and Sally Hemings. He did, however, pay them wages while they were in
France. Id. at 300.
99. DABNEY, supra note 24, at 40.
100. SIMON SCHAMA, CITIZENS: A CHRONICLE OF THE FRENCH REVOLUTION 442–
43, 447 (1989). As early as 1784, Jefferson had greeted the celebrated prisoner and
eventual revolutionary icon who called himself “Latude” on the latter’s release from
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free and equal in rights.”101 The words are Jefferson’s from the
Declaration of Independence, shorn of any reference to a “Creator”102
and with the addition of the word “free” in contrast to the American
Declaration’s right to liberty.
D. Thomas Jefferson and the Institution of Slavery
1. Thomas Jefferson as an Opponent of Slavery
Jefferson called slavery an “abominable crime.”103 In Notes on the
State of Virginia, Jefferson bitterly attacked the institution of slavery:
The whole commerce between master and slave is a perpetual
exercise of . . . the most unremitting despotism on one part,
and degrading submissions on the other. Our children see this
and learn to imitate it . . . and thus nursed, educated, and daily
exercised in tyranny, cannot but be stamped by it with odious
peculiarities. The man must be a prodigy who can retain his
manners and morals undepraved by such circumstances.104
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the Bastille. Id. at 398.
101. DECLARATION OF THE RIGHTS OF MAN AND OF THE CITIZEN, Aug. 26, 1789,
reprinted in JEAN BRISSAUD, A HISTORY OF FRENCH PUBLIC LAW 543–45 (James W.
Garner trans. 1969).
102. The Declaration is so carefully atheist that Article 10 states, “Nul ne doit être
inquiété pour ses opinions, même religieuses . . . .” (“No one ought to be disturbed
on account of his opinions, even religious ones . . . .”) Unlike the Declaration of
Independence, the Declaration of the Rights of Man and of the Citizen creates
enforceable rights; it is incorporated by reference into the preamble of the French
Constitution of 1958.
103. See supra note 86.
104. THOMAS JEFFERSON, NOTES ON THE STATE OF VIRGINIA (Query 18: Manners),
reprinted in WRITINGS, supra note 37, at 288. In the same book, however, Jefferson
casually discusses slaves in much the same manner as he discusses other forms of
property. See Query 14: Laws, id. at 260–61, 263 (slaves pass by descent and dower,
as lands do; as with entailed lands, entailed grants of slaves were made alienable).
Notes on the State of Virginia also contains some of Jefferson’s most appalling
comments on slavery and slaves. See, e.g., infra notes 132–159 and accompanying
text. Jefferson did not intend Notes on the State of Virginia to be published, or
completely published, during his lifetime. After sending a copy to the Marquis de
Chastellux, he wrote:
The strictures on slavery and on the constitution of Virginia . . . are the
parts which I do not wish to have made public, at least, till I know
whether their publication would do most harm or good. It is possible, that
in my own country, these strictures might produce an irritation, which
would indispose the people towards the two great objects I have in view;
that is, the emancipation of their slaves, and the settlement of their
constitution on a firmer and more permanent basis.
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Jefferson continued, “Indeed I tremble for my country when I
reflect that God is just: that his justice cannot sleep for ever . . . .”105
Somewhat optimistically, in retrospect, he concluded:
I think a change already perceptible, since the beginning of the
present revolution. The spirit of the master is abating, that of the
slave rising from the dust, his condition mollifying, the way I hope
preparing, under the auspices of heaven, for a total emancipation,
and that this is disposed, in the order of events, to be with the
106
consent of the masters, rather than by their extirpation.
In 1769, Jefferson was elected to the legislature of Virginia.107
During his term of office, he (unsuccessfully) introduced legislation to
permit the emancipation of slaves.108 Jefferson placed the blame for this
failure on England, stating that “during the regal government, nothing
liberal could expect success.”109 He was more successful in ending the
importation of slaves to Virginia. By 1776, the trade had been brought
to a de facto halt by the British blockade of American ports; in 1778,
Thomas Jefferson introduced a bill to end the trade de jure as well.110
The bill passed without opposition, perhaps proving Jefferson’s point
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(June 7, 1785), in WRITINGS, supra note 37, at 799. Jefferson expressed the same
fear to James Monroe:
I have taken measures to prevent its publication. My reason is that I fear
the terms in which I speak of slavery and of our constitution may
produce an irritation which will revolt the minds of our countrymen
against reformation in these two articles, and thus do more harm than
good.
Letter from Thomas Jefferson to James Monroe (June 17, 1785), in WRITINGS, supra
note 37, at 802, 804–05.
105. THOMAS JEFFERSON, NOTES ON THE STATE OF VIRGINIA, in WRITINGS, supra
note 37, at 289.
106. Id. Jefferson expressed much the same theme in a letter to Jean Nicolas
Demeunier:
When the measure of their tears shall be full, when their groans shall
have involved heaven itself in darkness, doubtless a god of justice will
awaken to their distress, and by diffusing light & liberality among their
oppressors, or at length by his exterminating thunder, manifest his
attention to the things of this world[.]
Letter from Thomas Jefferson to Jean Nicolas Demeunier (June 26, 1786), in
WRITINGS, supra note 37, at 590, 592. While the Northern states, to some extent,
fulfilled Jefferson’s hopes, the reaction of the Southern states resulted in the
institution of slavery becoming even more deeply entrenched.
107. THOMAS JEFFERSON, AUTOBIOGRAPHY, reprinted in WRITINGS, supra note 37,
at 5.
108. Id.
109. Id.
110. Id. at 33–34.
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that it was the illiberal “regal government” which had prevented the
success of his earlier measure.111
2. The Declaration of Independence
Among the various misdeeds which Jefferson attributed to King
George III in the first draft of the Declaration of Independence was the
carrying on of the slave trade:
He has waged cruel war against human nature itself, violating its
most sacred rights of life & liberty in the persons of distant people
who never offended him, captivating & carrying them into slavery
in another hemisphere, or to incur miserable death in their
transportation hither. This piratical warfare, the opprobrium of
infidel powers, is the warfare of the Christian king of Great
Britain, determined to keep open a market where MEN should be
bought and sold. He has prostituted his negative for suppressing
every legislative attempt to prohibit or to restrain this execrable
commerce, and that this assemblage of horrors might want no fact
of distinguished die, he is now exciting those very people to rise in
arms among us, and to purchase that liberty of which he deprived
them, by murdering the people on whom he also obtruded them;
thus paying off former crimes committed against the liberties of
one people, with crimes which he urged them to commit against
112
the lives of another.
[The] Clause . . . reprobating the enslaving the inhabitants of
Africa, was struck out in complaisance to South Carolina and
Georgia, who had never attempted to restrain the importation of
slaves, and who on the contrary still wished to continue it. Our
northern brethren also I believe felt a little tender under those
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111. Id.
112. Id. at 22; DABNEY, supra note 24, at 100 (emphasis Jefferson’s).
113. In actuality, of course, the slaves were not merely “obtruded” upon the
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Thus, Jefferson simultaneously accused King George of slave
trading and of encouraging slave revolts, while disingenuously
overlooking any participation of the American colonists in the bringing
of the slaves to America.113
Nonetheless, the paragraph alarmed many of the Southern leaders,
and does not appear in the final draft of the Declaration. Jefferson
commented, that
colonists by King George; the slaveholding classes went to considerable effort to
ensure that slaves were captured and brought to America. The British Crown did,
however, resist American attempts to end the slave trade.
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censures; for tho’ their people have very few slaves themselves yet
114
they had been pretty considerable carriers of them to others.
Jefferson also made frequent use of slavery as a metaphor. In A
Summary View of the Rights of British America, Jefferson protested the
British Parliament’s suspension of the New York legislature, saying,
“Were this to be admitted, instead of being a free people, as we have
hitherto supposed, and mean to continue ourselves, we should suddenly
be found the slaves, not of one, but of 160,000 tyrants . . . .”115 In
arguing for separation of church and state, and condemning the
criminalization of atheism, heresy, and apostasy, Jefferson referred to
“religious slavery, under which a people have been willing to remain,
who have lavished their lives and fortunes for the establishment of their
civil freedom.”116 In 1782, while Jefferson’s wife lay dying, he declined
to serve as a delegate to the Virginia Legislature.117 He wrote to James
Monroe that to require his service would be “slavery & not that liberty
which the bill of rights has made inviolable and for the preservation of
which our government has been charged.”118
3. After the Revolution: Emancipation and Expatriation
The Thomas Jefferson who was part of the power elite of the newly
independent United States was in many ways less radical than the
Thomas Jefferson who had opposed the British. During the debate on
the Articles of Confederation, Jefferson reported dispassionately on the
heated debate on whether slaves should be counted as part of the
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114. THOMAS JEFFERSON, AUTOBIOGRAPHY, reprinted in WRITINGS, supra note 37,
at 18; see also Cone, supra note 6, at 1043: “Although the committee accepted what
Jefferson had written, with only minor alterations, some major changes were made
when the committee presented the document to Congress for adoption. The most
substantial of these was, of course, the excision of the passage indicting the slave
trade.” (emphasis Jefferson’s).
115. Thomas Jefferson, A Summary View of the Rights of British America,
reprinted in WRITINGS, supra note 37, at 112. Jefferson was far from unique in his
use of the slavery metaphor; this particular sort of mote-and-beam blindness
permeated the entire Revolutionary effort. See generally HIGGINBOTHAM, supra note
50, 375–77 (1978). As Professor Curtis says, “The American revolutionaries
understood their cause as a battle for liberty against a government trying to enslave
them.” Michael Kent Curtis, The Curious History of Attempts to Suppress
Antislavery Speech, Press, and Petition in 1835–37, 89 NW. U. L. REV. 785, 790
(1995).
116. THOMAS JEFFERSON, NOTES ON THE STATE OF VIRGINIA, in WRITINGS, supra
note 37, at 285.
117. BRODIE, supra note 8, at 166. He had been elected without running.
118. Letter from Thomas Jefferson to James Monroe (May 20, 1782), in
WRITINGS, supra note 37, at 777, 779.
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population of the Southern states in assessing taxes; his reportage gives
little indication that he himself held any views on the subject.119
Jefferson’s opposition to slavery was founded as much on his
desire to have a United States devoid of black population as on moral or
compassionate grounds. In Notes on the State of Virginia, Jefferson
concluded, after a series of questionable calculations based on
unsupported assumptions, that by 1782 the ratio of free persons to slaves
in Virginia was 11:10.120 He then concluded that “[u]nder the mild
treatment our slaves experience, and their wholesome, though coarse,
food, this blot in our country increases as fast, or faster, than the
whites.”121
In the same volume, Jefferson wrote approvingly of a proposed
solution to this perceived problem:
To emancipate all slaves . . . . [T]hey should continue with their
parents to a certain age, then be brought up, at the public expence,
to tillage, arts or sciences, according to their geniusses, till the
females should be eighteen, and the males twenty-one years of age,
when they should be colonized to such place as the circumstances
of the time should render most proper . . . and to send vessels at the
same time to other parts of the world for an equal number of white
122
inhabitants; to induce whom to migrate hither[.]
Jefferson was not convinced, as others were, that Africa was the
appropriate site for this colonization.123 Instead, he proposed that a site
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119. THOMAS JEFFERSON, AUTOBIOGRAPHY, reprinted in WRITINGS, supra note 37,
at 24–27. During the debate, Benjamin Harrison proposed that every “two slaves
should be counted as one freeman” an idea which ultimately led to the infamous
“three-fifths” compromise. Id. at 26; U.S. CONST. art. I, § 2.
120. THOMAS JEFFERSON, NOTES ON THE STATE OF VIRGINIA, in WRITINGS, supra
note 37, at 214.
121. Id.
122. Id. at 264. Jefferson was reporting on proposed legislation at the time, but
the proposal to encourage freed slaves to resettle in Africa or elsewhere was one he
endorsed at the time and throughout his life. He was less enthusiastic about
encouraging further European immigration, saying, “They will bring with them the
principles of the governments they leave, imbibed in their youth; or, if able to throw
them off, it will be in exchange for an unbounded licentiousness, passing, as is usual,
from one extreme to another.” Id. at 211.
123. The subject object… as coming home to our physical and moral characters, to
our happiness and safety, is to provide an asylum to which we can, by degrees, send the
whole of that population from among us . . . . That any place on the coast of Africa
should answer the latter purpose, I have ever deemed entirely impossible.
Letter from Thomas Jefferson to Jared Sparks (Feb. 4, 1824), in WRITINGS, supra note
37, at 1484.
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in the Americas would be more practical.124 Jefferson also thought that
the simultaneous emancipation of all slaves was impossible, and instead
proposed to emancipate “the after-born, leaving them, on due
compensation, with their mothers . . . until a proper age for deportation .
. . . The estimated value of the new-born infant is so low, (say twelve
dollars and fifty cents,) that it would probably be yielded by the owner
gratis . . . .”125
Although the human and economic costs of this scheme were as
obvious to Jefferson as to the modern reader, he was convinced that no
other solution was possible, saying:
It will probably be asked, Why not retain and incorporate the
blacks into the state, and thus save the expence of supplying, by
importation of white settlers, the vacancies they will leave? Deep
rooted prejudices entertained by the whites; ten thousand
recollections, by the blacks, of the injuries they have sustained;
new provocations; the real distinctions which nature has made; and
many other circumstances, will divide us into parties, and produce
convulsions which will probably never end but in the
126
extermination of the one or the other race.
This was different, Jefferson maintained, from the situation in
Roman times:
Among the Romans emancipation required but one effort. The
slave, when made free, might mix with, without staining the blood
of his master. But with us a second is necessary, unknown to
history. When freed, he is to be removed beyond the reach of
127
mixture.
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124. “St. Domingo has become independent, and with a population of that color only;
and if the public papers are to be credited, their Chief offers to pay their passage, to
receive them as free citizens, and to provide them employment.” Letter from Thomas
Jefferson to Jared Sparks (Feb. 4, 1824), in WRITINGS, supra note 37, at 1486. By “St.
Domingo” Jefferson meant the island of Hispaniola, which was united under Haitian rule
from 1822 to 1844. See THE STATESMAN’S YEAR-BOOK 664 (132d ed., Brian Hunter ed.
1995).
125. Letter from Thomas Jefferson to Jared Sparks (Feb. 4, 1824), in WRITINGS,
supra note 37, at 1484–85; see also Letter from Thomas Jefferson to Edward Coles
(Aug. 25, 1814), in WRITINGS, supra note 37, at 1343, 1345.
126. THOMAS JEFFERSON, NOTES ON THE STATE OF VIRGINIA, in WRITINGS, supra
note 37, at 264.
127. Id. at 270.
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In contrast, in America “[t]heir amalgamation with the other color
produces a degradation to which no lover of his country, no lover of
excellence in the human character can innocently consent.”128
Later in his life, Jefferson grew even more vehement in his
insistence on this point. In 1820, discussing the Missouri Compromise,
he wrote:
I can say, with conscious truth, that there is not a man on earth who
would sacrifice more than I would to relieve us from this heavy
reproach, in any practicable way. The cession of that kind of
property, for so it is misnamed, is a bagatelle which would not cost
me a second thought, if, in that way, a general emancipation and
expatriation could be effected; and gradually, and with due
sacrifices, I think it might be. But as it is, we have the wolf by the
ears, and we can neither hold him, nor safely let him go. Justice is
in one scale, and self-preservation in the other. Of one thing I am
certain, that as the passage of slaves from one State to another,
would not make a slave of a single human being who would not be
so without it, so their diffusion over a greater surface would make
them individually happier, and proportionally facilitate the
129
accomplishment of their emancipation[.]
On the same subject, he also wrote:
4. Jefferson on the Subject of Race
This belief in the inherent incompatibility of the two races is one of
Jefferson’s recurring themes. In his Autobiography, he wrote:
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128. Letter from Thomas Jefferson to Edward Coles (Aug. 25, 1814), in
WRITINGS, supra note 37, at 1343, 1345.
129. Letter from Thomas Jefferson to John Holmes (Apr. 22, 1820), in WRITINGS,
supra note 37, at 1433, 1434 (emphasis Jefferson’s).
130. Letter from Thomas Jefferson to Albert Gallatin (Dec. 26, 1820), in
WRITINGS, supra note 37, at 1447, 1449.
29920_tjr_33-1 Sheet No. 16 Side B
Moral the question certainly is not, because the removal of slaves .
. . from one country to another, would never make a slave of one
human being who would not be so without it . . . . [But] if
Congress once goes out of the Constitution to arrogate a right of
regulating the conditions of the inhabitants of the States, its
majority may, and probably will next declare that the condition of
all men within the US, shall be that of freedom, in which case all
of the whites South of the Patomak and Ohio must evacuate their
130
States; and the most fortunate those who can do it first.
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Nothing is more certainly written in the book of fate than that these
people are to be free. Nor is it less certain that the two races,
equally free, cannot live in the same government. Nature, habit,
opinion has drawn indelible lines of distinction between them. It is
still in our power to direct the process of emancipation and
deportation peaceably and in such slow degree as that the evil will
wear off insensibly, and their place be pari passu filled up by free
white laborers. If on the contrary it is left to force itself on, human
nature must shudder at the prospect held up. We should in vain
look for an example in the Spanish deportation or deletion of the
131
Moors.
Jefferson at times seems to have had great difficulty separating
facts from opinion. He often presents his belief as established fact,
especially on the subject of race. Sometimes these beliefs are merely
ridiculous, as in the case of his musings on the relative hirsuteness of the
various races.132 At other times, they perpetuate damaging and
disturbing misconceptions about “race.” For example, after concluding
that a free black population in the United States would create conflict
that could only end “in the extermination of the one or the other race,”133
Jefferson added:
To these objections, which are political, must be added others,
which are physical and moral. The first difference which strikes us
is that of colour. Whether the black of the negro resides in the
134
reticular membrane between the skin and the scarf-skin, or in
the scarf skin itself; whether it proceeds from the colour of the
blood, the colour of the bile, or from that of some other secretion,
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131. THOMAS JEFFERSON, AUTOBIOGRAPHY, in WRITINGS, supra note 37, at 44.
While for the most part (as here) Jefferson scrupulously referred to slaves as people,
in a letter discussing farming he seemed to view his own slaves as livestock, stating:
“I count on potatoes, clover, & sheep. The two former to feed every animal on the
farm except my negroes, & the latter to feed them, diversified with rations of salted
fish & molasses, both of them wholesome, agreeable, & cheap articles of food.”
Letter from Thomas Jefferson to John Taylor (Dec. 29. 1794), in WRITINGS, supra
note 37, at 1018, 1021.
132. See THOMAS JEFFERSON, NOTES ON THE STATE OF VIRGINIA, Query VI:
Productions Mineral, Vegetable, and Animal, reprinted in WRITINGS, supra note 37,
at 187.
133. THOMAS JEFFERSON, NOTES ON THE STATE OF VIRGINIA, in WRITINGS, supra
note 37, at 264; see also Letter from Thomas Jefferson to Edward Coles (Aug. 25,
1814), in WRITINGS, supra note 37, at 1343, 1345 (“Yet the hour of emancipation is
advancing, in the march of time. It will come; and whether brought on by the
generous energy of our own minds; or by the bloody process of St Domingo . . . is a
leaf of history not as yet turned over.”).
134. The epidermis.
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the difference is fixed in nature, and is as real as if its seat and
cause were better known to us. And is this difference of no
importance? Is it not the foundation of a greater or less share of
beauty in the two races? Are not the fine mixtures of red and
white, the expressions of every passion by greater or less
suffusions of colour in the one, preferable to that eternal
monotony, which reigns in the countenances, that immovable veil
of black, which covers all the emotions of the other race? Add to
these, flowing hair, a more elegant symmetry of form, their own
judgment in favour of the whites, declared by their preference of
135
them, as uniformly as is the preference of the Oranootan for the
136
black women over those of his own species.
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135. Orangutan. This passage shows Jefferson at his very worst. It is, of course,
preposterous, and might be amusing if not for the disastrous effects that such attitudes
have had on the development of American thought. Orangutans, incidentally, are
found only in Borneo and Sumatra; none exist in Africa. Brodie proposes that
Jefferson probably used the term somewhat loosely, and probably on the basis of
incomplete zoological knowledge. BRODIE, supra note 8, at 232–33.
136. THOMAS JEFFERSON, NOTES ON THE STATE OF VIRGINIA, in WRITINGS, supra
note 37, at 264–65.
137. Id. at 265.
138. Id. at 288–89.
139. Id. at 265.
140. Id. at 267.
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Jefferson continues in this vein for some time, throwing out such
pseudo-scientific nonsense as “They secrete less by the kidnies, and
more by the glands of the skin, which gives them a very strong and
disagreeable odor.”137 Jefferson himself had also noted that the
ownership of slaves seemed to render the slave owners incapable of
work: “For in a warm climate, no man will labour for himself who can
make another labour for him . . . . [O]f the proprietors of slaves a very
small number are ever seen to labour.”138 Here Jefferson was at the
pinnacle of his perhaps willful obliviousness: Somehow Jefferson failed
to remember that hard work, especially in “a warm climate,” leads to
perspiration. Instead, he went on to speculate, nonsensically, that this
resulted from a “difference of structure in the pulmonary apparatus.”139
Jefferson also seems to have been curiously insensitive to the
psychological repercussions of the suffering which he must have
witnessed daily. Although he observed that “[a]mong the blacks is
misery enough, God knows,”140 he still could marvel that “[a] black,
after hard labour during the day, will be induced by the slightest
amusements to sit up till midnight, or later, though knowing he must be
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out with the first dawn of the morning.”141 Without stopping to wonder
when else the slave might enjoy those “slightest amusements,” he
blithely drew the conclusion that “[t]hey seem to require less sleep.”142
In the same paragraph, and without any apparent awareness of the
contradiction, he wrote of “their disposition to sleep when abstracted
from their diversions, and unemployed in labour.”143 This, he
determined, was because “[a]n animal whose body is at rest, and who
does not reflect, must be disposed to sleep of course.”144
Jefferson believed and perpetuated many damaging stereotypes,
passing them off as the result of scientific observation. He claimed that,
“They are more ardent after their female: but love seems with them to be
more an eager desire, than a tender delicate measure of sentiment and
sensation. Their griefs are transient.”145 He also states that “in memory
they are equal to the whites; in reason much inferior, as I think one
could scarcely be found capable of tracing and comprehending the
investigations of Euclid; and in imagination that they are dull, tasteless,
and anomalous.”146
Jefferson also disparaged the talents of noted African-American
writers of the time. Of Phyllis Wheatley147 he wrote, “The compositions
published under her name are below the dignity of criticism.”148
Ignatius Sancho, he opined,
141. Id. at 265.
142. THOMAS JEFFERSON, NOTES ON THE STATE OF VIRGINIA, in WRITINGS, supra
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note 37, at 265.
143. Id.
144. Id. at 265–66.
145. Id. at 265.
146. Id. at 266.
147. Phillis Wheatley (or, in Jefferson’s spelling, Phyllis Whately) was a poet
born in West Africa (probably Senegal) in the early 1750’s. Brought to America as a
child, she became well known in this country, dying in 1784 at the age of about
thirty. In 1770, she became the second American woman to have her works
published. A Self-Guided Tour, PLAIN DEALER (Clev.), Feb. 7, 1994, at 2B.
148. THOMAS JEFFERSON, NOTES ON THE STATE OF VIRGINIA, in WRITINGS, supra
note 37, at 267.
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has approached nearer to merit in composition . . . . But his
imagination is wild and extravagant, escapes incessantly from
every restraint of reason or taste, and, in the course of its vagaries,
leaves a tract of thought as incoherent and eccentric, as is the
course of a meteor through the sky . . . . Upon the whole, though
we admit him to the first place among those of his colour who have
presented themselves to the public judgment, yet when we
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compare him with the writers of the race among whom he has lived
149
. . . we are compelled to enroll him at the bottom of the column.
Jefferson was more willing to endorse the achievements of
Benjamin Banneker,150 to whom he wrote:
No body wishes more than I do to see such proofs as you exhibit,
that nature has given to our black brethren, talents equal to those of
the other colors of men, and that the appearance or want of them is
owing merely to the degraded condition of their existence, both in
Africa & America . . . . I considered [your Almanac] as a
document to which your whole colour had a right for their
justification against the doubts which have been entertained of
151
them.
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149. Id. As with Phyllis Wheatley, Jefferson insinuates that Sancho may not be
the author of the works attributed to him: “This criticism supposes the letters
published under his name to be genuine, and to have received amendment from no
other hand . . . .” Id.
150. Benjamin Banneker was an African-American inventor and mathematician
who helped design and plan Washington, D.C. Chris Kaltenbach, A Natural Place to
Celebrate Culture of African-Americans, BALT. SUN, Feb. 4, 2011, at T10.
151. Letter from Thomas Jefferson to Benjamin Banneker (Aug. 30, 1791), in
WRITINGS, supra note 37, at 982–83.
152. THOMAS JEFFERSON, NOTES ON THE STATE OF VIRGINIA, in WRITINGS, supra
note 37, at 267.
153. Id. at 270.
154. Id. at 269. Jefferson then goes on to condemn the concepts underlying
slavery:
When arguing for ourselves, we lay it down as a fundamental, that laws,
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Jefferson ultimately concluded that “[t]he improvement of the
blacks in body and mind, in the first instance of their mixture with the
whites, has been observed by every one, and proves that their inferiority
is not the effect merely of their condition in life.”152
After advancing these ideas, however, Jefferson admitted that he
might be wrong: “I advance it therefore as a suspicion only, that the
blacks, whether originally a distinct race, or made distinct by time and
circumstance, are inferior to the whites in the endowments both of body
and mind.”153
At other times, Jefferson was more willing to credit the influence
of oppression: “That disposition to theft with which they have been
branded, must be ascribed to their situation, and not to any depravity of
the moral sense. The man, in whose favour no laws of property exist,
probably feels himself less bound to respect those made in favour of
others.”154
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Jefferson also claimed that slavery as practiced in the United States
was relatively humane when compared to slavery in Roman times.155
The fact that some Roman slaves, in spite of this oppression, became
artists and tutors could be credited, according to Jefferson, to the fact
that those slaves were white.156
In sharp contrast to his negative portrayal of people of African
descent, Jefferson was effusive in his admiration of the bravery and
eloquence of Native Americans.157 He believed them to possess
intelligence and imagination equal to that of “whites”:
They will crayon out an animal, a plant, or a country, so as to
prove the existence of a germ in their minds which only wants
cultivation. They astonish you with strokes of the most sublime
oratory; such as prove their reason and sentiment strong, their
imagination glowing and elevated. But never yet could I find that
a black had uttered a thought above the level of plain narration . . .
158
.
He reaffirmed this belief in a letter to the Marquis de Chastellux:
And I am safe in affirming, that the proofs of genius given by the
Indians of North America, place them on a level with whites in the
same uncultivated state . . . . I have seen some thousands myself,
and conversed much with them, and have found in them a
masculine, sound understanding . . . . I believe the Indian, then, to
be in body and mind, equal to the white man. I have supposed the
black man, in his present state, might not be so; but it would be
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to be just, must give a reciprocation of right: that, without this, they are
mere arbitrary rules of conduct, founded in force, and not in conscience:
and it is a problem which I give to the master to solve, whether the
religious precepts against the violation of property were not framed for
him as well as for his slave? And whether the slave may not as
justifiably take a little from one, who has taken all from him, as he may
slay one who would slay him? Id.
155. See generally THOMAS JEFFERSON, NOTES ON THE STATE OF VIRGINIA, in
WRITINGS, supra note 37, at 267–69.
156. “Epictetus, Terence, and Phaedrus, were slaves. But they were of the race of
whites. It is not their condition then, but nature, which has produced the distinction.”
Id. at 268.
157. Thomas Jefferson, Query VI: Productions Mineral, Vegetable, and Animal,
reprinted in WRITINGS, supra note 37, at 187–89. As an example of eloquence,
Jefferson cites Logan’s Lament. Id. at 188–89 (reproducing Logan’s message to Lord
Dunmore).
158. THOMAS JEFFERSON, NOTES ON THE STATE OF VIRGINIA, in WRITINGS, supra
note 37, at 266.
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hazardous to affirm, that, equally cultivated for a few generations,
159
he would not become so.
At the same time, however, Jefferson seems to have fallen into the
“noble savage” fallacy, referring to Native Americans as a “barbarous
people.”160 In the Declaration of Independence, in a clause that was not
deleted from the final draft, Jefferson wrote that King George III “has
endeavoured to bring on the Inhabitants of our Frontiers, the merciless
Indian Savages, whose known Rule of Warfare, is an undistinguished
Destruction, of all Ages, Sexes and Conditions.”161
Ultimately, however, Jefferson attributed this “barbarousness” to
poverty and undernourishment, declaring that “great allowance must be
made for those circumstances of their situation which call for a display
of particular talents only. This done, we shall probably find that they are
formed in mind as well as in body, on the same module with the ‘Homo
sapiens Europaeus.’”162
E. Thomas Jefferson’s Impact on the Law of Slavery
In 1800, wondering “whether my country is the better for my
having lived at all,” Jefferson credited himself with having secured the
passage of “[t]he act prohibiting the importation of slaves.”163 By this
he presumably meant the act which prohibited the importation of slaves
to Virginia after 1878.164
29920_tjr_33-1 Sheet No. 19 Side B
159. Letter from Thomas Jefferson to Francois-Jean de Beauvoir, Marquis de
Chastellux (June 7, 1785), in WRITINGS, supra note 37, at 799, 801.
160. Thomas Jefferson, Query VI: Productions Mineral, Vegetable, and Animal,
reprinted in WRITINGS, supra note 37, at 185.
161. THE DECLARATION OF INDEPENDENCE para. 20 (U.S. 1776).
162. Thomas Jefferson, Query VI: Productions Mineral, Vegetable, and Animal,
reprinted in WRITINGS, supra note 37, at 187. To the term “Homo sapiens
Europaeus,” Jefferson attaches the footnote “Linn. Syst. Definition of a Man,”
showing that he subscribed to the erroneous Linnaean classification of the various
races of humanity as distinct subspecies. See also id. at 270. Given the level of
scientific knowledge at the time, however, Jefferson can probably be forgiven this
credulity.
163. Thomas Jefferson, A Memorandum (Services to My Country), in WRITINGS,
supra note 37, at 702.
164. THOMAS JEFFERSON, AUTOBIOGRAPHY, reprinted in WRITINGS, supra note 37,
at 33–34. Note that Jefferson was under the misapprehension that no Africans had
been brought to Virginia before 1650; at least, he states, “I have found no mention of
negroes in the colony until about 1650.” Id. In fact, free and indentured workers had
come to Virginia from Africa as early as 1619; it was only in 1650 or 1660 that
permanent slavery for persons of African descent was established in Virginia. See,
e.g., Walter L. Gordon III, War, Blacks and the United States Constitution, 30 HOW.
L.J. 1067 (1987).
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One of the many compromises in the Constitution is the provision
that the slave trade “shall not be prohibited by the Congress prior to the
Year one thousand eight hundred and eight . . . .”165 Jefferson pushed for
an end to the slave trade at the earliest constitutionally permissible date,
and was among the major proponents of legislation to ban the trade. In
1806, Jefferson told Congress:
I congratulate you, fellow-citizens, on the approach of the period at
which you may interpose your authority constitutionally, to
withdraw the citizens of the United States from all further
participation in those violations of human rights which have been
so long continued on the unoffending inhabitants of Africa, and
which the morality, the reputation, and the best interests of our
country, have long been eager to proscribe. Although no law you
may pass can take prohibitory effect till the first day of the year
one thousand eight hundred and eight, yet the intervening period is
not too long, to prevent, by timely notice, expeditions which
166
cannot be completed before that day.
As a lawyer, a legislator, a governor, and a president, Jefferson had
two goals with respect to slavery. The first, in which he was largely
successful, was to end the slave trade.167 By January 1, 1808, the
earliest date at which the Constitution permitted a federal ban on the
slave trade, every state except South Carolina had enacted a law
prohibiting the trade.168 For the Virginia law, and perhaps for the law
banning the trade in the District of Columbia,169 Jefferson could take
much of the credit.
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Representatives (Dec. 2, 1806), in WRITINGS, supra note 37, at 524, 528.
167. As Jefferson wished, the importation of slaves was outlawed at the earliest
constitutionally permissible date (Jan. 1, 1808) by the Act of Mar. 2, 1807, 2 Stat.
426 (1807). Despite the imposition of the death penalty, illegal importation of slaves
continued up until the Civil War. BRODIE, supra note 8, at 573; Holden-Smith, supra
note 50, at 1098; see also W.E.B. DUBOIS, THE SUPPRESSION OF THE SLAVE TRADE TO
THE UNITED STATES, 1638–1870 (1896). The U.S. briefly adhered to the British
position that slave trading violated international law, see United States v. La Jeune
Eugenie, 2 Mason 409, 26 F. Cas. 832 (C.C.U.S. 1822) (No. 15,551), until Justice
Marshall’s opinion in The Antelope, 23 U.S. (10 Wheat.) 66 (1825). But see United
States v. Bates, 24 F. Cas. 1042 (C.C.U.S. 1800) (No. 14,544); United States v.
Gooding, 25 U.S. (12 Wheat) 460 (1827); The Merino, 22 U.S. (9 Wheat.) 391
(1824); Tryphenia v. Harrison, 24 F. Cas. 252 (CC Pa. 1806) (No. 14,209).
168. BRODIE, supra note 8, at 572–73.
169. Act of Feb. 27, 1801, 2 Stat. 103 (1806), adopting Acts Md. 1796, ch. 67, §1
(at the time, the District of Columbia was still treated administratively as a county of
Maryland, albeit an atypical one). Jefferson was not yet President when the statute
29920_tjr_33-1 Sheet No. 20 Side A
165. U.S. CONST. art. I, § 9, cl. 1.
166. Thomas Jefferson, Sixth Annual Message to the Senate and the House of
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In pursuit of his second goal, emancipation (and perhaps
deportation) of the slaves, Jefferson was less successful. Before being
sent to France, Jefferson had suggested that Virginia should adopt a
“gradual emancipation” process.170 In Jefferson’s absence, a law on
slavery was enacted without the emancipation clause. Jefferson wrote,
“Of the two commissioners who had concerted the amendatory clause
for the gradual emancipation of slaves Mr. Wythe could not be present
as being a member of the judiciary department, and Mr. Jefferson was
absent on the legation to France.”171 In explaining the failure of the
legislature to enact the emancipation clause in the absence of himself
and Wythe, Jefferson wrote that “the moment of doing it with success
was not yet arrived, and . . . an unsuccessful effort, as too often happens,
would only rivet still closer the chains of bondage, and retard the
moment of delivery to this oppressed description of men.”172
This statement of Jefferson’s political pragmatism is immediately
followed by a comment on human hypocrisy:
What a stupendous, what an incomprehensible machine is man!
who can endure toil, famine, stripes, imprisonment & death itself
in vindication of his own liberty, and the next moment be deaf to
all those motives whose power supported him thro’ his trial, and
inflict on his fellow men a bondage, one hour of which is fraught
with more misery than ages of that which he rose in rebellion to
173
oppose.
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was enacted.
170. Letter from Thomas Jefferson to Jean Nicolas Demeunier (June 26, 1786), in
WRITINGS, supra note 37, at 590, 591–92.
171. Id. at 590, 592; see also supra note 37 (discussing George Wythe).
172. Letter from Thomas Jefferson to Jean Nicolas Demeunier (June 26, 1786), in
WRITINGS, supra note 37, at 590, 592.
173. Id.
29920_tjr_33-1 Sheet No. 20 Side B
Jefferson, ever conscious of the delicate balancing act between
state sovereignty and national unity, seems not to have devoted his
efforts to preventing the spread of slavery after the defeat of his 1784
Ordinance. While the adoption of his ideas in the Northwest Ordinance
ensured that at least six new states eventually entered the Union without
slavery, on balance he probably suffered more defeats than successes in
his battle against slavery.
A less tangible, and less measurable, result of Jefferson’s efforts is
the extent to which emancipation efforts and laws in the North were
influenced by Jeffersonian thought. Of course, this must be balanced
against the extent to which the disparity between Jefferson’s public
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condemnation of slavery and private ownership of slaves created
disillusionment and harmed the abolitionist cause.
Jefferson considered himself to be an opponent of slavery, but also
believed the following:
A good cause is often injured more by ill-timed efforts of its
friends than by the arguments of its enemies . . . . The revolution
in public opinion which this cause requires, is not to be expected in
a day, or perhaps in an age; but time, which outlives all things, will
174
outlive this evil also.
F. Conclusion
Discussing South America, Jefferson said:
The glimmerings which reach us from South America enable us
only to see that its inhabitants are held under the accumulated
pressure of slavery, superstition, and ignorance. Whenever they
shall be able to rise under this weight, and to show themselves to
the rest of the world, they will probably shew that they are like the
175
rest of the world.
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174. Letter from Thomas Jefferson to James Heaton (May 20, 1826), in
WRITINGS, supra note 37, at 1516. In the same letter, less than two months before his
death, Jefferson wrote: “My sentiments have been forty years before the public . . . .
Although I shall not live to see them consummated, they will not die with me; but
living or dying, they will be ever in my most fervent prayer.” Id.
175. Thomas Jefferson, Query VI: Productions Mineral, Vegetable, and Animal,
reprinted in WRITINGS, supra note 37, at 192.
176. Patrick Henry, like Jefferson, was keenly aware of the contradiction, writing
“[w]ould any one believe that I am Master of Slaves of my own purchase! I am
drawn along by ye general inconvenience of living without them; I will not, I cannot
justify it.” HIGGINBOTHAM, supra note 50, at 378.
29920_tjr_33-1 Sheet No. 21 Side A
While Jefferson was a dedicated opponent of slavery, superstition,
and ignorance in his own country, he somehow managed not to observe
that in South America. South America was already like the rest of the
world; or, at least, like North America and labored under a similar
burden.
Jefferson was imperfect; despite his apparently sincere belief in the
preeminent importance of individual liberty, he denied that liberty to his
slaves. In this he was scarcely alone. George Washington owned
slaves; so did Patrick Henry of “Give me liberty or give me death!”
fame.176
Even today, there is a tendency to revere the founders of our
country as somehow more than human. We tend to think of the
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Revolutionary era as it is portrayed in public monuments—a time of
toga-clad philosopher-kings in white marble halls. The deification of
the “Founding Fathers” is so deeply ingrained from primary school
onward that when we discover that these gods have feet of clay, the
discovery limits us. Reasoning that Jefferson, Washington, and the rest
were flawed, we become tolerant of moral and ethical flaws in
ourselves.
Instead, the central contradiction in Thomas Jefferson’s life should
serve as a reminder to those of us at the law school that bears his
name—a reminder not to accept moral contradictions in our own lives.
If it is true that the human race makes moral progress over time, then, as
the beneficiaries of two additional centuries of moral and ethical
development, we are better equipped to do so. We are standing not on
the shoulders of giants but on the shoulders of ordinary, fallible men and
women like Thomas Jefferson.
III. THOMAS JEFFERSON AS AN UNSUCCESSFUL
ADVOCATE FOR FREEDOM IN HOWELL V. NETHERLAND177
A. Introduction
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177. Originally published, in slightly different form, as Aaron Schwabach,
Thomas Jefferson as an Unsuccessful Advocate for Freedom in Howell v. Netherland,
20 T. JEFFERSON L. REV. 129 (1998).
178. MALONE, supra note 7, at 69. (quoting John Adams)
179. Argument in the case of Howell v. Netherland (April 1770), reprinted in 1 THE
WRITINGS OF THOMAS JEFFERSON: 1760-1775, at 373–74 (Paul Leicester Ford ed., G.P.
Putnam's Sons 1892-1899.) [hereinafter Howell v. Netherland].
29920_tjr_33-1 Sheet No. 21 Side B
In pre-Revolutionary America, the study of law was a “dreary
ramble.”178 Neither case reporters nor casebooks existed for American
cases; all law books were imported. As a result, the record of case law
from that time is incomplete, and only two of Thomas Jefferson’s legal
arguments are still available to the researcher.
In an attempt to fill in the lacunae in Virginia case law, Thomas
Jefferson collected and prepared for publication a set of colonial
Virginia law reports; these were published three years after his death as
Reports of Cases Determined in the General Court of Virginia from
1730 to 1740 and from 1768 to 1772.179 Of these cases, only two were
cases which Jefferson had argued, apparently selected for their subject
matter. One dealt with the relationship between the State and the
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clergy;180 the other was a suit by an indentured servant seeking freedom
from his state of involuntary servitude.181
B. The Participants
1. Howell
Samuel Howell’s great-grandmother was a free white woman who
became pregnant by a black man.182 After 1705, Howell’s grandmother
was born.183 Under the law of the time, this child was bound to
servitude until the age of thirty-one.184 During this period of servitude,
at some time after 1723, she gave birth to Howell’s mother, who also
entered into a state of servitude lasting until the age of thirty-one.185
Samuel Howell himself was born into the life of a bond servant in 1742,
making him one year older than Jefferson.186 He was sold by the owner
of his mother and grandmother to Joshua Netherland.187 It was the
belief of his previous owner and subsequent purchaser that he was
required to serve until he attained the age of thirty-one years.188
In 1770, with three years of servitude remaining, Howell brought
suit against Netherland, seeking his freedom.
2. Jefferson
In 1770, Thomas Jefferson was twenty-seven years old. He had
been a practicing member of the Virginia bar for two years.189 He had
also been a slave owner for six years; by 1770, Jefferson owned about
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29920_tjr_33-1 Sheet No. 22 Side A
180. Godwin v. Lunan (Oct. 1771), reprinted in 1 THE WRITINGS OF THOMAS
JEFFERSON: 1760-1775, supra note 179, at 399–412.
181. Howell v. Netherland, supra note 179, at 374. For a fictionalized account of the
trial, see BYRD, supra note 28, 253–56 (1993).
182. Howell v. Netherland, supra note 179, at 374.
183. Id.
184. Id. at 374–75.
185. Id. at 374, 376.
186. Id. at 374. Jefferson was born on April 13, 1743.
187. Id.
188. Howell v. Netherland, supra note 179, at 374–75.
189. MALONE, supra note 7, at 121. The multiple biographical volumes by Dumas
Malone are among the most comprehensive and readily accessible sources of information
about Jefferson, but they are very much in the celebrationist tradition, and contain such
horrifying lines as this description of Richmond in the 1760s: “Here was an open space
known as the Exchange, where planters squared accounts with one another, consigned
tobacco to factors and sea captains, and arranged to purchase Negro fellows or some of
those likely wenches.” Id. at 64.
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sixty slaves.190 In the next few years he was to marry Martha Wayles
Skelton and, upon the death of her father, inherit another 135 slaves.191
In 1769, less than a year before representing Howell, Jefferson had
advertised for the return of a runaway slave, Sandy.192 When Sandy was
recaptured, Jefferson sold him.193 At the time he represented Howell,
Jefferson was thus a member in good standing of slave-owning Virginia
society, and his credibility with the pro-slavery Virginia establishment
should have been high. He had not yet authored either the Declaration
of Independence or Notes on the State of Virginia, containing some of
his strongest anti-slavery statements.194 As of 1770, he had made only
one significant effort which might have been construed as anti-slavery.
As a member of the Virginia legislature, he had introduced legislation
which would have made it legal for Virginia slave owners to emancipate
their slaves.195 The legislation was unsuccessful.196
3. Wythe
George Wythe, whose signature appears on the Declaration of
Independence, taught Jefferson the law.197 As a member of the Virginia
legislature and a prominent lawyer, judge, and academic, Wythe played
an instrumental role in the events of and leading up to the Revolution.198
Today, the law school at William & Mary is named after Wythe and
after Jefferson’s political foe John Marshall.199
The events of Wythe’s life were, however, eclipsed in the public
consciousness by the sensational manner of his death. During his life,
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29920_tjr_33-1 Sheet No. 22 Side B
190. Jefferson’s father had died in 1757, leaving his slaves to Jefferson; however,
Jefferson did not inherit these slaves until he reached the age of twenty-one, in 1764. See
generally BRODIE, supra note 8, at 26; Schwabach, supra note 3, at 65.
191. See supra note 11 and accompanying text; BRODIE, supra note 8, at 95–96.
192. BRODIE, supra note 8, at 103–04.
193. Id.
194. Notes on the State of Virginia also contains many of Jefferson’s most
appallingly racist statements. See supra note 108.
195. THOMAS JEFFERSON, AUTOBIOGRAPHY, in WRITINGS, supra note 37, at 5.
196. See supra notes 56, 108.
197. THOMAS JEFFERSON, AUTOBIOGRAPHY, in WRITINGS, supra note 37, at 4–5. See
also generally MALONE, supra note 178, at 65–74. For an account of Wythe’s long and
flamboyant career, see IMOGENE BROWN, AMERICAN ARISTIDES: A BIOGRAPHY OF
GEORGE WYTHE (1981).
198. See, e.g., MALONE, supra note 178, at 91–92, 261–62.
199. Years after the events described in this article, when Jefferson was governor of
Virginia, he established a professorship in law at William & Mary; Wythe was the first
holder of this professorship. See generally MALONE, supra note 178, at 285.
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Wythe freed many of his slaves.200 Wythe continued to live with his
freed housekeeper, Lydia Broadnax, in Richmond; her son, Michael
Brown, was widely believed to be Wythe’s son as well.201 In 1806, at
the age of 81, Wythe was poisoned by his nephew, George Wythe
Sweeney.202 Also poisoned were Lydia Broadnax and Michael
Brown.203 Wythe and Brown died; Lydia Broadnax survived.204 The
motive was apparently financial: Lydia Broadnax and Michael Brown
were beneficiaries under Wythe’s will, with Sweeney as the residual
legatee.205
Despite a universal popular belief in his guilt, Sweeney was
acquitted, largely because the testimony of the two survivors was
inadmissible.206 Ironically, the law which made the testimony of black
persons inadmissible in Virginia courts had been drafted by Jefferson,
with the approval of Wythe.207
C. The Law
1. The Statutes
Two statutes governed the case. The first, in Jefferson’s view,
related only to the servitude of Howell’s grandmother:
If any woman servant shall have a bastard child, by a negro or
mulatto, or if a free Christian white woman shall have such bastard
child by a negro or mulatto; in both the said cases the
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29920_tjr_33-1 Sheet No. 23 Side A
200. BROWN, supra note 197, at 266. Wythe also became a vegetarian later in his
life. Id. at 278.
201. Id. at 524–25. But see BROWN, supra note 197, at 298–305.
202. See generally J.P. BOYD & W.E. HEMPHILL, THE MURDER OF GEORGE WYTHE
(1955); see also BRODIE, supra note 8, at 523–25; BROWN, supra note 197, at 286–96;
DUMAS MALONE, JEFFERSON THE PRESIDENT: SECOND TERM 1805–1809, at 135–37
(1974) [hereinafter JEFFERSON THE PRESIDENT]. Sweeney’s name is variously spelled
Sweny, Sweeny, Swiney, and Swinney.
203. BRODIE, supra note 8, at 523–25; BROWN, supra note 197, at 290–91;
JEFFERSON THE PRESIDENT, supra note 202, at 135. Malone states, apparently
erroneously, that three members of the Wythe household, in addition to Wythe himself,
were poisoned. MALONE, supra note 178, at 135.
204. JEFFERSON THE PRESIDENT, supra note 202, at 135.
205. Id.
206. Id. at 140; see also BRODIE, supra note 8, at 525. But see BROWN, supra note
197, at 303–04 (proposing that deficiencies of scientific evidence, rather than
inadmissibility of the testimony of Lydia Broadnax, led to the acquittal). Brown points
out, however, that the Richmond Enquirer, on September 9, 1806, attributed the acquittal
to the ban on testimony from black persons. Id. at 303 n.21 and accompanying text.
207. JEFFERSON THE PRESIDENT, supra note 202, at 140.
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churchwardens shall bind the said child to be a servant until it shall
208
be of thirty one years of age.
The second governed the servitude of Howell’s mother:
Where any female mulatto, or Indian, by law obliged to serve till
the age of thirty or thirty one years shall, during the time of her
servitude, have any child born of her body, every such child shall
serve the master or mistress of such mulatto or Indian, until it shall
attain the same age, the mother of such child was obliged, by law,
209
to serve unto.
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208. Act of 1705, ch. 49, § 18, quoted in Howell v. Netherland, supra note 179, at
375. Section 36 of the Act added, “[A]ll children shall be bond or free according to the
condition of their mothers and the particular directions of this act.” Id. According to
Jefferson, this section applied only to slaves and not to indentured servants.
209. Act of 1723, ch. 4, § 22, quoted in Howell v. Netherland, supra note 179, at 376.
210. Act of 1705, ch. 49, § 18, quoted in Howell v. Netherland, supra note 179, at
375.
211. Howell v. Netherland, supra note 179, at 376. “This was the predicament of the
plaintiff’s grandmother.” Id.
212. Jefferson, of course, saw matters differently.
29920_tjr_33-1 Sheet No. 23 Side B
Before examining Jefferson’s arguments, it may be useful to take a
careful look at the statutes. The relevant portions of the first provided
that: a “bastard child” of a “free Christian white woman” or “any
woman servant” and a “negro or mulatto” would be bound to
servitude.210 This, as Jefferson conceded, made Howell’s grandmother a
bound servant.211 She was the illegitimate child of a free, presumably
Christian white woman and a black man; since miscegenation was
illegal in Virginia, all such children could be presumed to be
illegitimate.
Howell’s mother might also have been born into servitude under
this statute. Her mother would have been “any woman servant.” If her
father was a “negro or mulatto,” the act would make her a bound servant
as well, unless she were a legitimate child. Nothing in the case suggests
otherwise, and Jefferson seems to have assumed at least the illegitimate
birth of each generation of the Howell family, if not the race of the
fathers of Howell and his mother.
If Howell’s mother was born into servitude under the Act, and if
Howell’s father was a “negro or mulatto” not married to his mother,
Howell also would have been born into servitude under the act.212
If Howell’s mother was not born into servitude under the 1705 Act,
the 1723 Act would still have made her a servant. The relevant portions
of the later Act provided that: any child born to and during the period
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of servitude of a “female mulatto” obliged to serve until the age of
thirty or thirty-one would be bound to serve until the same age (thirty or
thirty-one) to which the mother had been obliged to serve.213
The question of the legitimacy of the birth of Howell and his
mother was rendered moot, as was the question of the race of the father.
Howell’s mother was born to and during the period of servitude of
Howell’s grandmother, a “female mulatto.”214 Thus she, like her
mother, became bound to serve until the age of thirty-one. Howell was
then born to and during the period of servitude of his mother, herself
apparently also a “female mulatto,” and was thus also bound to serve
until the age of thirty-one.
3. Jefferson’s Arguments
213. Id.
214. Without delving into the precise legal definition of the term “mulatto” at various
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points during the eighteenth-century in Virginia, it seems sufficient that Jefferson,
arguing for Howell, assumed that the term “mulatto” covered Howell, his mother, and his
grandmother equally.
215. Howell v. Netherland, supra note 179, at 374. See generally id. at 378.
216. Id. at 374.
217. Id.
218. Id.
29920_tjr_33-1 Sheet No. 24 Side A
With the law clearly against him, Jefferson resorted to two
arguments. The first was that even if Howell had been bound to serve
his grandmother’s owner, the sale of Howell to Netherland ended that
servitude, since bond servants were not alienable. The second, and (for
Howell) disastrous argument was that the “law of nature” prevented the
extension of Howell’s grandmother’s servitude to the third generation.
Jefferson’s first argument was legally sound. He began by stating
that the purpose of the 1705 Act “was to punish and deter women from
that confusion of species, which the legislature seems to have
considered an evil, and not to oppress their innocent offspring.”215 The
indenture of the child under the supervision of the church wardens was,
according to Jefferson, actually a “cautious provision for the welfare of
the child,” creating a contractual relationship between the indenture
holder and the church wardens.216 To allow the first owner to sell the
child “would be to admit to him a power of discharging himself of his
covenants.”217 Nor could the new owner simply assume the obligations
of the first owner to provide food, clothing, and protection for the
servant; there was no method of assuring the solvency or moral fitness
of the new owner.218
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The same restrictions on alienation, according to Jefferson, applied
to the issue of the original indentured servant. The original owner
obtained the benefit of the labor of the children until they reached the
age of thirty-one, and undertook similar obligations to provide food,
clothing, and protection.219 The indentured servants bore “greater
resemblance to apprentices than to slaves.”220 Thus, since “it is well
known that an apprentice can not be aliened,” Howell was also
inalienable, and his sale to Netherland was void.221
This argument has at least two weak points, which Wythe might
have attacked. First, while Jefferson convincingly established the
contractual basis of Howell’s grandmother’s indenture, the leap to
comparing ordinary indentured servants to apprentices (who were also
bond servants) may have strained the credulity of an eighteenth-century
Virginian court. Second, and more seriously, Jefferson cited only “the
general nature of the connection and engagements between” apprentices
and their masters as support for the proposition that apprentices are
inalienable.222 Nonetheless, had Jefferson said no more, Howell might
have been freed.
It was Jefferson’s second argument which almost certainly lost him
the sympathy of the court, and lost Howell his chance at freedom.
Jefferson argued:
Under the law of nature, all men are born free, every one 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 is given him by the Author of nature,
223
because necessary for his own sustenance.
Id. at 375.
Howell v. Netherland, supra note 179, at 375.
Id. at 373, 375.
Id.
Id. at 376.
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219.
220.
221.
222.
223.
29920_tjr_33-1 Sheet No. 24 Side B
This is obviously an earlier, and far less eloquent, version of the
opening of the second paragraph of the Declaration of Independence.
Although intriguing as evidence of the development of the concept of
personal liberty in Jefferson’s mind, the central idea was virtually
guaranteed to enrage a court in a slaveholding society: slavery violated
the law of nature. Jefferson’s “rough draft” was thus purchased at the
expense of at least three years of additional servitude for Samuel
Howell.
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Id.
Id.
Howell v. Netherland, supra note 179, at 377.
Id.
Indeed, the modern reader is more likely to reject the concept of natural law than
the idea that, if there is such a thing, slavery violates it.
229. Howell v. Netherland, supra note 179, at 378–79.
230. Id. at 379.
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224.
225.
226.
227.
228.
29920_tjr_33-1 Sheet No. 25 Side A
Both the 1705 and 1723 Acts seem, by their terms, to be applicable
to an infinite number of generations. Since slavery violated the law of
nature, however, Jefferson argued that the 1705 Act could apply only to
Howell’s grandmother: “I suppose it will not be pretended that the
mother being a servant, the child would be a servant also under the law
of nature, without any particular provision in the act.”224 Recognizing
the weakness in this argument, Jefferson continued: “The reducing 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,
and that too without end, for if it extends to any, it must extend to every
degree of descendants.”225
Jefferson then attempted to combine his first argument, that the
servitude of an indentured servant is contractual in nature, with his “law
of nature” argument.226 This argument is far less compelling than
Jefferson’s “all men are born free” argument. It is based in part upon
Jefferson’s perception that the law of nature (in contrast to the statute)
should dictate that “the bondage of the father [rather than the mother]
would infer that of his issue; for he may with equal, and some
anatomists say with greater reason, be said to include all his
posterity.”227 To the modern reader, this argument seems silly, and far
less convincing than a simple assertion that all persons are born free.228
Sophistry of this nature might, however, have been more likely to
convince an eighteenth-century Virginia court, already indoctrinated
with the belief that it was the law of nature that some persons should be
slaves.
Finally, Jefferson argued that Section 36 of the 1705 Act, providing
that “children shall be bond or free according to the condition of their
mothers” was not only inapplicable to Howell, but proved the limited
applicability of the 1723 Act. The fact that the legislature felt it
necessary to pass the 1723 Act proved that, prior to the passage of the
act, a person in Howell’s mother’s provision would not have been made
a servant.229 Otherwise, the 1723 Act would have been unnecessary.230
The 1723 Act, in turn, was inapplicable to Howell because it referred to
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a “child born of [the] body” of an indentured mulatto servant, and not to
issue of such a person.231 Jefferson concluded that “it remains for some
future legislature, if any shall be found wicked enough, to extend it to the
grandchildren and other issue more remote[.]”232
D. Conclusion
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231. Id. A later (1748) recodification of the acts not only made no substantive
change in the provisions of the 1705 and 1723 Acts, but was irrelevant to Howell, who
was born in 1742. Id. at 379–80.
232. Id. at 381 (emphasis added).
233. See, e.g., BROWN, supra note 197, at 267.
234. Howell v. Netherland, supra note 179, at 380.
235. Id. at 374.
29920_tjr_33-1 Sheet No. 25 Side B
The two opposing attorneys in Howell v. Netherland seem to have
been cast in the roles for which each was least suited. On the one hand
Jefferson, whose personal life at the time was that of a pillar of
slaveholding society, and whose later life was irredeemably flawed by
his inability to come to terms with the moral problem of slavery,
represented the servant seeking freedom. On the other hand Wythe,
who did far more than most other Virginians of his class and generation
to oppose slavery,233 represented the slave owner seeking to prevent
Howell from being free. Hypocrisy confronting hypocrisy across a
courtroom was perhaps nothing novel even then, but is nonetheless
disturbing.
Jefferson’s argument, and Howell’s hope of freedom, were almost
certainly doomed by Jefferson’s reckless use of phrases such as “under
the law of nature . . . we are all born free.”234 Jefferson might have won
on the argument that the sale of Howell to Netherland was unlawful;
however, he opted to pursue sweeping principles of abstract justice in
lieu of pursuing the minimum judicial action needed to win this
particular case for this particular client.
After Jefferson finished his arguments, the court apparently felt
that it had heard all that it needed to. Jefferson records that “Wythe, for
the defendant, was about to answer, but the Court interrupted him, and
gave judgement in favor of his client.”235
And Samuel Howell remained a slave, bound in a state of
involuntary servitude to Joshua Netherland.
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IV. THOMAS JEFFERSON & SALLY HEMINGS236
There is no king who has not had a slave among his ancestors, and no
slave who has not had a king among his.
— Helen Keller
It is unlikely that either Sally Hemings or Thomas Jefferson ever
imagined that one day their great-great-great-great-grandson would go
to work for Microsoft.237 Actually, history has left us little information
about what Sally Hemings imagined. The life and thoughts of Jefferson,
on the other hand, are perhaps more fully documented than those of any
of his contemporaries. Thomas Jefferson’s great weakness was not his
failure to imagine Windows NT or clicking “Start” in order to stop; it
was that he failed to imagine a nation in which all persons would be
born free and equal, with inalienable rights to life, liberty and the pursuit
of happiness.238
A. Sally Hemings
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236. Originally published, in slightly different form, as Aaron Schwabach,
Thomas Jefferson & Sally Hemings, 21 T. JEFFERSON L. REV. 41 (1999).
237. The Microsoft employee is program manager Jeff (William Jefferson)
Westerinen, who says of his ancestry: “We can be proud of the richness, proud of
Jefferson and proud that we’ve got some black heritage as well . . . . I know it sounds
like a cliché, but it’s a very American story.” Kimberly A.C. Wilson, Jefferson and
Hemings: Science Backs a Family, SEATTLE POST-INTELLIGENCER, Nov. 4, 1998, at
B–1.
238. For those readers who would protest that this is too rosy a view of today’s
America, please skip ahead to the conclusion.
239. Reminiscences of Madison Hemings, supra note 23, at 637.
240. Id.
241. Id.
242. Id. at 638.
29920_tjr_33-1 Sheet No. 26 Side A
According to Madison Hemings, Sally Hemings’ grandmother was
a slave in the Williamsburg, Virginia household of John Wayles.239
Wayles, a slave trader, later became Jefferson’s father-in-law. Sally
Hemings’ grandfather was an English whaling captain named
Hemings.240 Captain Hemings attempted to purchase or obtain custody
of his daughter, Elizabeth (Betty) Hemings, but John Wayles refused to
sell her and thwarted Hemings’ attempts to steal her.241 Wayles was
motivated not by a desire to keep mother and child together, but by
curiosity—he wanted to see how the mixed-race child would turn out.242
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Elizabeth Hemings was raised in the Wayles household. She had
six children with John Wayles, one of whom was Sally Hemings.243
Sally was thus the sister of Wayles’ daughter Martha. In 1771, Martha’s
first husband, Bathurst Skelton, died; three years after the death of her
first husband, Martha (by then Martha Wayles Skelton, according to the
custom of the time) married Thomas Jefferson.244 When John Wayles
died in 1773, he left Martha 135 slaves.245 Thus Martha, and through
her Thomas Jefferson, came to own her sister.
After Jefferson went to Paris with his older daughter, he sent for his
younger daughter to join him. Sally Hemings accompanied her as a
companion and servant.246 Her relationship with Jefferson may have
begun, as it is so often portrayed in fiction, in Paris, and continued
throughout Jefferson’s life – or it may have begun somewhat later, after
Jefferson’s and Hemings’ return to Monticello.247 She had at least six
children during her life, at least four of whom survived to adulthood.248
All of these children were apparently of “white” appearance.249
29920_tjr_33-1 Sheet No. 26 Side B
243. Id.; see also BRODIE, supra note 8, at 90. Elizabeth Hemings also had eight
other children by three other fathers, two of whom were slaves and one of whom was
a white man. BRODIE, supra note 8, at 90. John Wayles was also married four times.
He and his first wife, Martha, had a daughter, also named Martha. Three weeks later,
Martha (the mother) died. At the age of eighteen, after the deaths of her first and
second stepmothers, Martha (the daughter) married Bathurst Skelton. (The family
relationships of the Jeffersons, Skeltons, Hemingses, Wayleses, et al. were intricately
intertwined. For example, Bathurst Skelton was, in a sense, Martha’s step-uncle,
having been the younger brother of Martha’s second stepmother’s first husband.)
Martha and Bathurst had a son, John; just under two years after their marriage,
Bathurst Skelton died. BRODIE, supra note 8, at 88–89.
244. BRODIE, supra note 8, at 88.
245. Id. at 92.
246. Reminiscences of Madison Hemings, supra note 23, at 639.
247. Id. The DNA test can confirm only paternity, not the date on which the
relationship began.
248. Id. at 640. One of these children, of course, was Madison himself.
Considerable controversy surrounds the identity of the possible seventh child.
Madison Hemings stated that his mother was pregnant when she returned from
France; if so, she may have had a child who died. If she had a child who lived, that
child may have been Thomas Woodson. The DNA test showed that Woodson’s
descendants were probably not Thomas Jefferson’s descendants; Woodson may not
have been Sally Hemings’ son, either. See, e.g., ANNETTE GORDON-REED, THOMAS
JEFFERSON AND SALLY HEMINGS: AN AMERICAN CONTROVERSY 69, 195 (1997).
249. See, e.g., Reminiscences of Madison Hemings, supra note 23, at 640;
BRODIE, supra note 8, at 634. Sally Hemings herself was apparently light-skinned,
with straight dark hair. For a general discussion arising from the difficulties of the
concept of “whiteness” and the social and legal construction of race, see for example
IAN F. HANEY LOPEZ, WHITE BY LAW: THE LEGAL CONSTRUCTION OF RACE (1996).
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The four surviving children were Beverly, Madison, Harriet, and
Eston.250 Thomas Woodson, who may have been Sally Hemings’ son,
also survived; he was probably born in 1790.251 Sally had a daughter,
Harriet, in 1795, who later died.252 Beverly was born in 1798.253
Another daughter was born in 1799, but died in infancy.254 A third
daughter, also named Harriet, was born in 1801; Madison was born in
1805, and Eston in 1808.255 According to Madison Hemings, Sally
returned from Paris with Jefferson only on condition that he free each of
her children at the age of twenty-one. Jefferson apparently acquiesced
in the running away of Beverly and Harriet in 1822.256 Madison and
Eston were freed in Jefferson’s will;257 Jefferson had to petition the
Virginia legislature to allow them to remain in Virginia.258 Madison,
Eston, and Sally went to Charlottesville, where they lived together until
her death in 1835.259 Sally Hemings and her children thus escaped the
tragedy which befell Monticello—slaves placed on the auction block—
after Jefferson’s death. Sally herself was freed not by Jefferson but by
his daughter Martha after his death.260
Although rumors of a relationship between Jefferson and Hemings
had circulated for some time, the storm of publicity began in 1802. A
journalist named James Callender, who had been paid by Jefferson to
publish attacks on Federalists, turned against Jefferson when Jefferson
refused to appoint him postmaster of Richmond. He published, among
other attacks, viciously racist articles about Jefferson and Hemings. The
theme was picked up by newspapers—especially Federalist ones—
nationwide.261 Madison and Eston, of course, were born after the
scandal.
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45
29920_tjr_33-1 Sheet No. 27 Side A
GORDON -REED, supra note 248, at 195–96
Id.
Id.
Id.
Id.
GORDON-REED, supra note 248, at 195–96.
This was the easiest way for him to give them their freedom, although it left
their legal status ambiguous. See id. at 25–28.
257. Three other Hemingses were also freed. GORDON-REED, supra note 248, at
207. The later lives of the Hemings children have been described in JUDITH JUSTUS,
DOWN FROM THE MOUNTAIN: THE ORAL HISTORY OF THE HEMINGS FAMILY (1990).
Their history makes interesting reading, but is outside the scope of this article.
258. GORDON-REED, supra note 248, at 40.
259. Id. at 209.
260. BRODIE, supra note 8, at 630–31. But see GORDON-REED, supra note 248, at
222.
261. Much has been written about Callender, see for example JOSEPH J. ELLIS,
250.
251.
252.
253.
254.
255.
256.
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B. The DNA Testing
Given the ongoing controversy over the Hemings–Jefferson
relationship, DNA testing was inevitable. The project originated with
retired pathologist Eugene Foster, at a friend’s suggestion.262 Foster
collected blood samples from five male-line descendants of Jefferson’s
uncle Field Jefferson; five male-line descendants of Thomas Woodson;
one male-line descendant of Eston Hemings Jefferson; and three maleline descendants of Samuel and Peter Carr’s grandfather John Carr.263
Dr. Foster chose the Y chromosome for testing because it is passed
nearly unchanged from father to son, while other chromosomes
experience a shuffling of genetic material between each generation.264
This meant, of course, that only lineages in which there was a male
descendant in each generation could be tested. Some of Sally Hemings’
children, such as Madison Hemings, had no unbroken male lineage and
thus could not be tested.
Foster collected samples from male descendants of Sally’s sons
Tom Woodson265 and Eston Hemings Jefferson.266 Foster also collected
samples from the descendants of Samuel and Peter Carr, alleged by
some to have been the fathers of Sally Hemings’ children.
Foster’s samples were analyzed by Oxford population geneticist
Christopher Tyler-Smith and others.267 They compared the samples to
Y chromosomes taken from the male-line descendants of Thomas
29920_tjr_33-1 Sheet No. 27 Side B
AMERICAN SPHINX: THE CHARACTER OF THOMAS JEFFERSON 217-19 (1996).
262. Dinitia Smith & Nicholas Wade, Jefferson Was Father of Slave’s Child,
DNA Study Finds, [TORONTO] GLOBE AND MAIL, Nov. 2, 1998, at A14. Others had
also proposed DNA testing. CONOR CRUISE O’BRIEN, THE LONG AFFAIR: THOMAS
JEFFERSON AND THE FRENCH REVOLUTION, 1785–1800 at 329 (1996) (O’Brien says
that he has “consulted an eminent American geneticist” to discuss the feasibility of
such a project). Ellis’ blurb on the back of GORDON-REED’s book, supra note 248, is
prophetic: “Short of digging up Jefferson and doing DNA testing on him and
Hemings’s [sic] descendants, Gordon-Reed’s account gets us as close to the truth as
the available evidence allows.”
263. Eugene A. Foster et al., Jefferson Fathered Slave’s Last Child, 396 NATURE
27 (1998).
264. Smith & Wade, supra note 262.
265. Tom Woodson was originally Tom Hemings; his name was changed when
he married Jemima Woodson, the slave daughter of slave owner Drury Woodson.
Slave Children of Thomas Jefferson, L.A. SENTINEL, July 29, 1998, at A4.
266. Eston Hemings added the surname Jefferson when he moved to Madison,
Wisconsin in 1850. Chris Martell, Jefferson & Hemings: The Madison Connection,
WISCONSIN STATE J., Dec. 13, 1998, at 1–G.
267. Smith & Wade, supra note 262; Foster, supra note 263.
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Jefferson’s paternal uncle, Field Jefferson.268 (Thomas Jefferson’s sons
with his wife, Martha Wayles Skelton Jefferson, did not survive to
adulthood, leaving no line of male descendants.)
The Y chromosomes of Field Jefferson’s descendants possessed an
extremely rare haplotype which has never been observed outside the
Jefferson family.269 This haplotype was not found in the descendants of
Thomas Woodson or of the Carr brothers, but was found in the
descendants of Eston Hemings Jefferson.
The researchers concluded:
The simplest and most probable explanations for our molecular
findings are that Thomas Jefferson, rather than one of the Carr
brothers, was the father of Eston Hemings Jefferson, and that
Thomas Woodson was not Thomas Jefferson’s son. The frequency
of the Jefferson haplotype is less than 0.1 per cent, a result that is
at least 100 times more likely if the president was the father of
Eston Hemings Jefferson than if someone unrelated was the
270
father.
A 99% probability is not, of course, the same as a 100%
probability, which the researchers acknowledge:
We cannot completely rule out other explanations of our findings
based on illegitimacy in various lines of descent. For example, a
male-line descendant of Field Jefferson could possibly have
illegitimately fathered an ancestor of the presumed male-line
descendant of Eston. But in the absence of historical evidence to
271
support such possibilities, we consider them to be unlikely.
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reproduced in full:
Seven bi-allelic markers (refs 7–12), eleven microsatellites (ref. 13) and
the mini-satellite MSY1 (ref. 14) were analysed (Fig. 1b). Four of the
five descendants of Field Jefferson shared the same haplotype at all loci,
and the fifth differed by only a single unit at one microsatellite locus,
probably a mutation. This haplotype is rare in the population, where the
average frequency of a microsatellite haplotype is about 1.5 per cent.
Indeed, it has never been observed outside the Jefferson family, and it
has not been found in 670 European men (more than 1,200 worldwide)
typed with the microsatellites or 308 European men (690 worldwide)
typed with MSY1. Id.
270. Id.
271. Id. Of course, controversy continues to rage over the forensic use of DNA
evidence in criminal trials and, to a lesser degree, in the determination of paternity.
See, e.g., Leonard J. Deftos, Daubert & Frye: Compounding the Controversy Over
the Forensic Use of DNA Testing, 15 WHITTIER L.REV. 955 (1994); Confronting the
29920_tjr_33-1 Sheet No. 28 Side A
268. Foster, supra note 263.
269. In the interest of clarity, the paragraph containing this information is
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C. The Official Story (Prior to November 1998)
On the Sally Hemings question, there had long been a tradition of
denial among Jefferson scholars.
Andrew Burstein,272 Noble
Cunningham,273 Virginius Dabney,274 Joseph Ellis,275 Dumas Malone,276
Alf J. Mapp, Jr.,277 Merrill D. Peterson,278 Norman K. Risjord279 and
Willard Sterne Randall280 have all argued that no such relationship
existed. A handful of scholars had remained neutral on the topic,281
while very few had been willing to commit themselves to the idea that
the relationship had existed.282 Those few are now vindicated,283 while
29920_tjr_33-1 Sheet No. 28 Side B
New Challenges of Scientific Evidence, 108 HARV. L. REV. 1481, 1557 (1995); Jill T.
Phillips, Who Is My Daddy? Using DNA to Help Resolve Post-Death Paternity Cases,
8 ALB. L.J. SCI. & TECH. 151 (1997).
272. ANDREW BURSTEIN, THE INNER JEFFERSON 231 (1995) (“[I]t seems highly
unlikely . . . .”).
273. NOBLE E. CUNNINGHAM, JR., IN PURSUIT OF REASON: THE LIFE OF THOMAS
JEFFERSON 114–16 (1987).
274. VIRGINIUS DABNEY, supra note 24.
275. ELLIS, supra note 244, at 219 (“[A] long-term sexual relationship with one of
his slaves was not in character for Jefferson . . . his deepest urges were more selfprotective and sentimental than sexual.”). Ellis won a National Book Award for his
Jefferson biography. The quoted passage may not be entirely representative; he also
includes a fairly objective appendix (also concluding that the relationship probably
did not exist) on the controversy. Id. at 303–07.
276. See, e.g., DUMAS MALONE, JEFFERSON THE PRESIDENT: FIRST TERM 1801–
1805, at 497–98 (1970).
277. ALF J. MAPP JR., THOMAS JEFFERSON: A STRANGE CASE OF MISTAKEN
IDENTITY 263 (1987).
278. MERRILL D. PETERSON, THOMAS JEFFERSON AND THE NEW NATION 707
(1970).
279. NORMAN K. RISJORD, THOMAS JEFFERSON 114 (1994).
280. WILLARD STERNE RANDALL, THOMAS JEFFERSON: A LIFE 476–77 (1993).
281. See, e.g., JACK MCLAUGHLIN, JEFFERSON AND MONTICELLO: THE BIOGRAPHY
OF A BUILDER 98, 106, 121 (1988) (carefully neutral); ANNETTE GORDON-REED,
THOMAS JEFFERSON & SALLY HEMINGS: AN AMERICAN CONTROVERSY (1997).
Gordon-Reed, an attorney, carefully exposes the silly and generally muzzy-headed
arguments that historians have advanced in denying the relationship. To a fellow
attorney, her concise, analytical writing comes as an immense relief after the bombast
of the historians. Although leaning toward belief in the relationship, in the absence of
hard evidence, she was at that time unwilling to commit to a definite conclusion.
282. Of these, the most notable was the late Fawn Brodie, whose book THOMAS
JEFFERSON: AN INTIMATE HISTORY (Bantam 1975) was what Ellis called “the most
dramatic episode” in the “third chapter” of the controversy. ELLIS, supra note 275, at
304. Conor Cruise O’Brien, one of the historians most hostile to Jefferson and to his
traditional biographers, also believed that the relationship existed. O’BRIEN, supra
note 262, at 22.
283. See, e.g., Brendan Glacken, A Slave to One’s Origins, IRISH TIMES, Nov. 16,
1998.
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the others have been shown to have been incorrect. Some, such as
Malone, are no longer alive to express opinions on the subject.284
Ellis was the first of the historians to recant, co-authoring a
comment accompanying the Nature article in which he stated, “Together
with the circumstantial evidence, it seems to seal the case that Jefferson
was Eston Hemings’ father . . . . The jury remains out with respect to
Sally’s other children, but the burden of proof has clearly shifted.”285
More succinctly, Ellis also stated, “I got it wrong.”286 Since the DNA
testing, Ellis has repeatedly stated that he now believes that there was a
relationship. Popular press reports have referred to historians as “flipflopping”287 and “spinning in their armchairs.”288 A proposal has been
made to use DNA testing to validate the claims of the supposed
descendants of George Washington and his slave, Venus.289
1. The “Character” Argument
Most of the arguments advanced by scholars against the
relationship were, even before the Nature article, obviously silly, as
Gordon-Reed and O’Brien pointed out; they tended to be based not so
much on facts as on an analysis of Thomas Jefferson’s character, as
perceived by his “defenders.” It would be gratuitously cruel to poke fun
at historians who have been made fools of by history; the “character”
argument requires some attention, as the DNA evidence has ignited a
new round of assessment of Thomas Jefferson’s character.
At the heart of most historians’ denials of the relationship between
Sally Hemings and Thomas Jefferson was the idea that “Thomas
Jefferson wouldn’t do a thing like that.” The various underpinnings of
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284. Shortly before his death, Malone stated that he was willing to concede that
Jefferson and Hemings might have had sexual relations “once or twice” but could not
accept the possibility of an ongoing relationship. GORDON-REED, supra note 248, at
156. Gordon-Reed is fairly forgiving of Malone, questioning his motives and
conclusions while acknowledging the value of his research. See generally id. at 233.
O’Brien is less so: “It is rather depressing to find Malone’s protectively emollient
obiter dicta about Jefferson still being treated as authoritative sources, as late as
1993.” O’BRIEN, supra note 262, at 151.
285. Eric S. Lander & Joseph R. Ellis, Founding Father, 396 NATURE 13 (1998).
286. Today Show (NBC television broadcast Nov. 2, 1998).
287. The President and the Slave, PLAIN DEALER (Cleveland, Ohio), Nov. 6, 1998,
at 10–B.
288. Brent Staples, Revelations Add to Mystery of Jefferson, BALTIMORE SUN,
Nov. 5, 1998, at 23A.
289. Jeremy Manier, Washington’s Link to Slave Examined; Family Contends It’s
Descended from Liaison; Researchers Say He Never Had Children, DALLAS
MORNING NEWS, Nov. 15, 1998, at 14–A.
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this argument, compounded of racism, hero-worship, naiveté, and
sloppy research, have been thoroughly exposed by Gordon-Reed.290
However, it is worth reminding ourselves that Jefferson was perfectly
capable of holding contradictory beliefs and acting in contradictory
ways on a wide variety of subjects.
The pejorative term for this ability is hypocrisy; while it is a
common human characteristic, Jefferson certainly possessed it to an
outstanding degree. This is a man who could write to Benjamin
Banneker that:
No body wishes more than I do to see such proofs as you exhibit,
that nature has given to our black brethren, talents equal to those of
the other colors of men . . . [your Almanac is] a document to
which your whole color had a right for their justification against
291
the doubts which had been entertained of them[.]
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290. GORDON-REED, supra note 248. Of course, not all of these motives were
present for all of the historians. Some seem to have been motivated primarily by a
racist horror of “miscegenation,” while others simply failed to do adequate research,
and so forth.
291. Letter from Thomas Jefferson to Benjamin Banneker (Aug. 30, 1791), in
WRITINGS, supra note 37, at 982–83.
292. THOMAS JEFFERSON, NOTES ON THE STATE OF VIRGINIA 266, in WRITINGS,
supra note 37, at 266.
293. Letter from Thomas Jefferson to Benjamin Banneker (Aug. 30, 1791), in
WRITINGS, supra note 37, at 982–83.
294. THOMAS JEFFERSON, NOTES ON THE STATE OF VIRGINIA 266, in WRITINGS,
supra note 37, at 267.
295. O’BRIEN, supra note 262, at 267.
296. Id.
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But he could also write that black persons are “in reason much
inferior [to whites], as I think one could scarcely be found capable of
tracing and comprehending the investigations of Euclid; and in
imagination they are dull, tasteless, and anomalous.”292 While he wrote
to Banneker that “the appearance of a want of [talents] is owing merely
to the degraded condition of their existence, both in Africa and
America,”293 in Notes on the State of Virginia he had written that “their
[black people’s] inferiority is not the effect merely of their condition in
life.”294
The most glaring contradiction of all, of course, is that Jefferson
could advocate “liberty” and oppose slavery, yet own slaves, with all
that slave-owning implies: He forced them to labor, without pay, for his
benefit; when they ran away, he advertised for their return,295 sent out
slave-catchers,296 and had the recaptured slaves beaten and chained; he
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took sexual advantage of at least one,297 and owned his own children; to
finance his entertaining and the renovation of Monticello, he mortgaged
and sold human beings.
Jefferson’s hypocrisy was not limited to issues of slavery and race.
He could believe that an enlargement of the territory of the United States
required an amendment to the Constitution,298 and yet purchase
Louisiana; he could then deny democratic government to the newly
acquired territory.299 He could advocate freedom of the press, yet could
tell Pennsylvania Governor Thomas McKean, “I have therefore long
thought that a few prosecutions of the most prominent offenders [those
who had printed stories about Jefferson and Hemings] would have a
wholesome effect in restoring the integrity of the presses.”300
Jefferson professed to admire and respect Native Americans, yet
outlined to William Henry Harrison a Machiavellian scheme for
acquiring the greatest amount of Indian land at the least cost,
concluding:
I must repeat that this letter is to be considered as private . . . .
You will also perceive how sacredly it must be kept within your
own breast, and especially how improper to be understood by the
Indians. For their interests and their tranquillity it is best they
301
should see only the present age of their history.
In the personal sphere, Jefferson professed his love and concern for
his daughter Martha and her children, yet squandered his wealth (mostly
inherited from his wife and her father) so profligately that after his death
they were left destitute.
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297. Whatever the nature of the Jefferson-Hemings relationship may have been, it
certainly contained an enormous inequality of power.
298. ELLIS, supra note 275, at 209.
299. Id. at 210–11. John Quincy Adams, then a Senator, attempted to add a
tongue-in-cheek provision prohibiting residents of the territory from being taxed
without their consent. Id. at 211.
300. Id. at 220.
301. Letter from Thomas Jefferson to William H. Harrison (Feb. 27, 1803), in
WRITINGS, supra note 37, at 1117, 1120. Jefferson added that the letter was “not to
control any particular instructions which you may receive through official channel.”
Id. Since Jefferson was President of the United States at the time, he could not
reasonably believe that Harrison would ignore his letter in interpreting any
instructions he might receive from Congress. As he had done earlier with Genet,
Jefferson was privately acting at cross-purposes with his official duty. Harrison
became famous for his massacre of Indians at Tippecanoe in 1811, and was elected
president in 1840. He died only one month after his inauguration.
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2. Jefferson and Hemings in Fiction
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In contrast to historians, writers of fiction, and the American public
generally, have tended to assume that the relationship existed. Max
Byrd,302 writing from the viewpoint of William Short, took no stand on
the issue, but most other writers did. Most famously, Barbara ChaseRiboud wrote of a romantic quasi-marriage between Jefferson and
Hemings.303
Chase-Riboud was instantly attacked by Jefferson
scholars,304 a peculiar reaction to a work of fiction.305
In his surreal novel Arc d’X, Steve Erickson imagines a physically
and psychologically violent relationship.306 In a short story set perhaps a
century or so in the future, Bruce Sterling includes a reference to Sally
Hemings as Jefferson’s concubine, in a manner that indicates that, in the
future, this relationship is common knowledge.307
In a 1994
Merchant/Ivory film, Thomas Jefferson (Nick Nolte) abandoned his
relationship with Maria Cosway to pursue Sally Hemings (Thandie
Newton); they were forced to keep the relationship secret not so much
because of Jefferson’s public reputation, but because of the hostility of
his daughter.308
Partly, of course, writers of fiction may have been more willing to
accept the relationship because the story is more interesting that way.
Partly, though, the writers and the American public were right, and the
historians were wrong, all along: The marble-icon Jefferson that his
biographers created and came to believe in bore no resemblance to any
real human being, let alone the real Thomas Jefferson.
D. Reassessing Jefferson
BYRD, supra note 28.
CHASE-RIBOUD, supra note 28.
See, e.g., DABNEY, supra note 24, at 65–74.
See generally Burgess v. Chase-Riboud, 765 F. Supp. 233 (E.D. Pa. 1991).
ERICKSON, supra note 28.
STERLING, supra note 28.
JEFFERSON IN PARIS (Merchant Ivory 1994).
O’BRIEN, supra note 262, at 325.
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302.
303.
304.
305.
306.
307.
308.
309.
29920_tjr_33-1 Sheet No. 30 Side B
Now that the marble icon has finally been demolished, it is time to
address the question of who Jefferson really was. The extreme reaction
is that if Jefferson was no saint, he must have been a demon: a lying,
cheating, manipulative, hypocritical racist who will emerge in the next
century as the “prophet and patron of the fanatical racist far right in
America.”309 If, on the other hand, as Gordon-Reed and others have
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310. See, e.g., Joyce Howard Price, Researcher Defends Claim About Jefferson,
WASHINGTON TIMES, Nov. 8, 1998, at A–2; Malcolm Ritter, Another Jefferson May
Have Fathered Child, Historians Say, AUSTIN AMERICAN-STATESMAN, Nov. 7, 1998,
at A–21.
311. GORDON-REED, supra note 248, at 108–11.
312. See, e.g., the case of Julia Chinn, infra notes 344–345 and accompanying
text.
313. See supra note 28. “Concubine” is the word Madison Hemings used to
describe his mother’s relationship with Jefferson. Israel Jefferson used the same
word. Reminiscences of Israel Jefferson, reprinted in BRODIE, supra note 8, at 646,
652.
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suggested, Thomas Jefferson loved Sally Hemings, he would be
unsuitable to serve in such a role.
Those historians who formerly denied the existence of a
relationship between Thomas Jefferson and Sally Hemings have, for the
most part, reassessed their views. A few diehards have begun to
generate increasingly more unlikely theories—for example, that
Randolph Jefferson, never before linked to Sally Hemings by any
historian, but carrying the Field Jefferson haplotype, could have been
the father.310 For the most part, however, the general view is that the
relationship did exist. Its exact nature, of course, is far more difficult to
determine. All relationships between a master and a slave in eighteenth
and early nineteenth-century Virginia were coercive, since the slave
lacked any effective power either to resist or to consent.
That is, though, as Gordon-Reed points out,311 an
oversimplification which to some extent dehumanizes the slaves.
Actual master-slave relationships ran the gamut from forcible rape to
romantic relationships in which the master ultimately freed the slave and
publicly acknowledged the relationship.312 The Jefferson-Hemings
relationship obviously did not fall into this latter category, and GordonReed argues that it did not belong in the former. Given the probable
length of the relationship, and the fact that Jefferson freed (or allowed to
escape) Sally Hemings’ children, some level of accommodation and
emotional relationship (such as the concubinage postulated by Sterling
and many other writers of Jefferson/Hemings fiction313) seems more
likely. What the dimensions of that relationship were, and what it meant
to its principals, will probably remain forever unknown.
In arguing that Jefferson was unlikely to engage in a thirty-eight
year relationship with an unwilling partner, Gordon-Reed is at least
partially concerned to emphasize that slaves remained capable of
making intelligent choices and exercising what little power they had to
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improve their situation. In Hemings’ situation, she used that power to
guarantee the freedom of her children.
It is especially hard (and unpleasant) for some to think that a black
woman may have exercised her will, circumscribed as it was, by
saying yes to Thomas Jefferson and, in doing so, have been able to
314
exercise some influence over him.
In contrast to this racist reason for believing in the absolute
powerlessness of slaves,
315
The notion of total powerlessness has appeal to some blacks
because it seems to make the slave system worse, as if that were
possible. Saying that there were instances where blacks had room
to maneuver can be taken as an attempt to minimize the horror of
the slave system. This is not the case . . . there were two sets of
human beings involved in that sorry state of affairs, not one race of
all powerful gods and another race of totally dominated
316
submortals.
314. GORDON-REED, supra note 248, at 110.
315. And, as we see in sources cited infra notes 332 and 334, to people of many
races.
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316. GORDON-REED, supra note 248, at 110.
317. Dan Rather, The Legacy of Slavery, TIMES UNION (Albany, N.Y.), Nov. 14,
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In addition to Gordon-Reed’s concern, the DNA results raise the
specter of another fairly predictable backlash; some racist historians will
make their peace with the truth by concluding that Sally Hemings was
not black. It would be best to address this now. Assuming that Thomas
Jefferson, John Wayles, and Captain Hemings had no recent African
ancestry (a fairly large assumption), Sally Hemings was one-fourth
African.
Dan Rather has already raised the issue by saying, “We have no
way of knowing whether Jefferson, who rabidly opposed miscegenation,
even considered Hemings to be black[.]”317 This is more untrue than
true. Many modern Americans, of all races, might not think of Sally
Hemings as black. Isaac Jefferson described her as “mighty near
white—very handsome, long straight hair down her back.”318 At the
time, the “one drop” rule had not gained widespread acceptance in the
American South.
Jefferson himself, though, writing in 1815, concluded through a
complicated set of formulae, that a person with anything less than 1/4
1998.
318. Michael Dorman, Jefferson’s Slaves and Son, NEWSDAY, Nov. 18, 1998, at
A–36. Isaac Jefferson was a slave at Monticello.
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“negro blood” was not black, so that “a third cross clears the blood.”319
The third cross in the Hemings family line was Jefferson himself; thus,
Jefferson seems to have convinced himself that Sally Hemings was
black, but that her (and his) children were white.
E. The Public Reaction
The reaction of the American public to the Nature article was not
one of surprise; it could be summarized as: “Well, that just confirms
what we all knew all along.” Only a handful of historians expressed
astonishment.320
What was surprising was the amount of attention devoted to news
about people who had, after all, been dead for over 160 years. A search
in Westlaw’s ALLNEWSPLUS database for “Hemings /s Jefferson &
DNA” turned up 678 results.321 Of these, about 10 percent were
partially or primarily about the Clinton controversy. Most, though,
mention Clinton in passing or not at all; the public interest is in Jefferson
and Hemings.322
Stories reporting the facts quickly gave way to stories about what
those facts meant. Dan Rather pointed out that the results raise serious
questions about the integrity of historical scholarship as well as about
contemporary concepts of race.323 Hemings’ descendant Dorothy
Jefferson Westerinen wrote that, although she is “white,” she has always
considered herself to be partly African-American; she agreed with
Rather “that most historians have, until now, refused to accept the
validity of this legacy is based on racism—conscious or
unconscious.”324 Annette Gordon-Reed wrote that the news “should
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319. Letter from Thomas Jefferson to Francis C. Gray (Mar. 4, 1815), reproduced
in BRODIE, supra note 8, at 586–87.
320. E.g., “This is stunning news . . . very shocking, said UCLA historian Joyce
Appleby, an expert on the Jeffersonian era and a past president of the American
Historical Association,” Robert Lee Hotz, DNA Study Shows Jefferson Fathered His
Slave’s Child, L.A. TIMES, Nov. 1, 1998, at A–1.
321. Search performed 4:00 p.m. February 11, 1999. The same search was
duplicated at 1:56 p.m., February 13, 2011. The recent search turned up 2097 results
with approximately 17 percent mentioning the Clinton controversy.
322. Jefferson and Hemings are likely to have a more lasting impact on history
than Bill and Monica. A disturbing trend could be seen in the Clinton stories, though.
Writers on both sides of the controversy tended to equate the two relationships,
ignoring the difference whose importance is so great that it trivializes all similarities.
President Clinton, for all his many faults, owned no slaves.
323. Rather, supra note 317.
324. Dorothy Jefferson Westerinen, We Always Knew About Sally and Tom,
BOSTON GLOBE, Nov. 13, 1998 at A27.
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bring about a re-evaluation not only of Jefferson but also of the many
generations of historians who have written about him.”325 Perhaps the
most succinct summary of popular opinions on the subject was this:
The strangest thing about the Thomas Jefferson-Sally Hemings
controversy has always been just that: the controversy. It has
been downright surreal to hear historian after mainstream
historian vehemently deny even the possibility of a sexual
relationship between a Founding Father and one of his
slaves.326
Barbara Robinson added:
It was funny watching an obviously white woman [Julia
Westerinen] descendant of Jefferson say she is so glad to know she
is also African-American. DNA testing has just made a family of
white folks black.
DNA testing promises to make race
327
irrelevant.
This last sentence has implications which go far beyond the scope
of this article. As Julia Westerinen herself said, “We’re all a mixture,
and isn’t that wonderful.”328 Gordon-Reed stated, “We’re not two
separate people . . . . We’re related by culture and blood. That reality
has been denied.”329
However, the complicated mess of American thinking on race is
unlikely to be decisively altered by any single event; such change will
come gradually.330 What may change much more rapidly is America’s
view of its history. Obviously, the credibility of the “official version” of
our history, and those who have made good livings professing it, has
been dealt a serious blow.
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325. Annette Gordon-Reed, Why Jefferson Scholars Were the Last to Know, N.Y.
TIMES ABSTRACTS 27, Nov. 3, 1998; see generally Leef Smith & Michael Fletcher,
Mixed Feelings Over Jefferson Affair; Blacks Feel Vindicated by Evidence, Upset
that Rumors Were Doubted for so Long, WASHINGTON POST, Nov. 8, 1998; Ken
Warren, DNA Results Reveal Secret, Shared History, FLORIDA TODAY, Nov. 7, 1998.
326. Cynthia Tucker, All in the Family, DENVER POST, Nov. 6, 1998, at B–7.
327. Barbara Robinson, On Slavery, Race, and Sex, LAS VEGAS REVIEW-JOURNAL,
Nov. 15, 1998, at F-1.
328. Jonathan Tilove, Blurring the Color Line, HARRISBURG [PA.] PATRIOT-NEWS,
Nov. 15, 1998, at F–1.
329. Focus: Jefferson’s Legacy, [Norfolk] VIRGINIAN-PILOT & LEDGER STAR,
Nov. 3, 1998, A–4.
330. For instance, Dorothy Jefferson Westerinen pointed out that her own
grandparents had concealed their African-American heritage, while she takes pride in
it. Westerinen, supra note 324.
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So the verdict of the vox populi was, “Let’s re-examine our
thoughts about race and slavery, and don’t believe everything the
historians tell you.” On Jefferson, reactions were more mixed: Some
seemed understanding,331 while others were less sympathetic to him,
though more so to Sally Hemings.332 Overall, few seemed to agree with
Gordon-Reed’s sympathetic view that the story “humanizes”
Jefferson.333 Most seemed to agree with Ellen Goodman that “the issue
isn’t that Thomas Jefferson had sex with Sally Hemings. It’s that he
owned her.”334
The Jefferson descendants were also affected in various ways. The
descendants of Eston Hemings were vindicated, while the descendants
of Thomas Woodson refused to accept the idea that Woodson was not
Thomas Jefferson’s son: “We have our oral history that’s gone down for
so many generations, and we know damn well it’s true.”335 The
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331. Jefferson descendant Mary Truscott said, “You know, the guy’s wife died
when he was 39 years old . . . . What are you going to do, read books the rest of your
life?” Janet Burkitt, It’s All In the Family: Jefferson’s Mixed Descendants Hit It Off
In Bellevue, SEATTLE TIMES, Nov. 12, 1998, at B–1.
332. See, e.g., Bebe Moore Campbell on Morning Edition, Nov. 17, 1998: “There
is no consensual sex between slave and enslaver, and certainly not between a grown
man and a 14-year old girl. Sally Hemings, yes, was coerced, her ‘no’ was
powerless.” 1998 WL 3309394; Jennifer Dokes, We’re All Heirs of Jefferson,
ARIZONA REPUBLIC, Nov. 5, 1998, at B–5 (“[Maybe] what Jefferson did with
Hemings . . . was different from the rapes committed by fellow gentry . . . the results
were the same[:] children born into slavery.”); Edward Pratt, Jefferson Affair Misses
Point, BATON ROUGE ADVOCATE, Nov. 21, 1998, at 7–B (“Her circumstance put her
in a position of being as obedient to his desires as his horse was to gallop when he
gave it the whip.”); Readers’ Forum, COURIER-JOURNAL (Louisville, Ky.), Nov. 27,
1998, at 10–A (“[Jefferson] committed statutory rape with Hemings.”); Deborah
Saunders, Finding The Sons and Sins of Founding Fathers, SAN FRANCISCO
CHRONICLE, Nov. 3, 1998, at A–23 (“What’s horrific . . . isn’t the sex; it’s the
slavery.”); Lynn Hecht Schafran, Hemings Was Merely Jefferson’s Slave, USA
TODAY, Nov. 4, 1998, at 26–A (Letter to the editor) (“‘affair’ [means] a romantic,
sexual relationship. A man having sex with a woman when she cannot say no
because he owns her is not romantic; it is the starkest possible inequality of power.”);
Patricia J. Williams, What’s Love Got To Do With It?, NATION, Nov. 23, 1998 (“I
wonder at the rush to embrace ‘love’ as the overarching feature of their bond.”).
333. See Three Perspectives on America’s Jefferson Fixation, THE NATION, Nov.
30, 1998.
334. Ellen Goodman, The Real Jefferson-Hemings Issue: He Owned Her,
HARTFORD COURANT, Nov. 6, 1998, at A–17 (syndicated column published,
excerpted, and reprinted repeatedly during Nov. 1998). In this light, a special award
for insensitivity must go to Allan Hall, who wrote: “President Bill Clinton is not the
only occupant of 1600 Pennsylvania Avenue to romp with the hired help.” Allan
Hall, THE SCOTSMAN, Nov. 2, 1998, at 7. Sally Hemings wasn’t hired, of course; she
was owned.
335. Statement of Woodson family member Robert Golden on CBS This Morning
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Monticello Association, composed of Jefferson’s “legitimate”
descendants, was divided; hard-liners refused to allow Hemings’
descendants to attend its meeting336 or be buried at Monticello,337 while
Association member Mary Truscott invited Hemings’ descendant (and
Microsoft employee) Jeff Westerinen to dinner at her Bellevue,
Washington home.338 Tour guides at Monticello revised their answer to
visitors’ most frequently asked question, telling them that the
relationship had existed.339
F. Other Slave Owner/Slave Relationships
Gordon-Reed is willing to forgive Jefferson for not freeing Sally
Hemings, even if the modern American public is not.340 In the later part
of Jefferson’s life, such an act would have been extremely difficult
legally, politically, and financially.341 Earlier in Jefferson’s life,
however, the financial difficulties would not have existed.
Acknowledging the relationship and freeing Sally Hemings would
have had significant costs even then; however, it is not enough simply to
dismiss Jefferson’s failure to do so as a product of the time. Many other
Virginia slaveholders, to whom Jefferson was personally and
professionally close, freed their slaves during their lives or in their wills.
William Short freed his slaves and joined an anti-slavery society.
Edward Coles freed his slaves and sold his Virginia plantation, using the
proceeds to provide each freed family with 160 acres in land and
training in farming and skilled crafts.342 Coles was later elected
governor of Illinois, proving that his actions had not amounted to
political suicide.
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(CBS television broadcast Nov. 2, 1998). Of course, illegitimacy in the male line
could have occurred at some point after Thomas Woodson. See generally Tamala M.
Edwards, Family Reunion: The Revelation about Thomas Jefferson’s Liaison
Spotlights a Sensitive Racial Issue — Passing for White, TIME, Nov. 23, 1998, at 85.
336. Lucian K. Truscott IV, Time for Monticello to Open the Gate, N.Y. TIMES
ABSTRACTS, Nov. 5, 1998, at F–1.
337. See, e.g., Damian Whitworth, Jefferson Heirs Demand Place in Cemetery,
THE TIMES (London), Nov. 4, 1998, at 16. The Association controls the right to be
buried in the cemetery, although it does not own Monticello. Monticello is owned by
the Thomas Jefferson Memorial Foundation.
338. Burkitt, supra note 331.
339. See, e.g., Leef Smith, Much Ado at Monticello; Tourists, Guides Ponder
Jefferson and Genetics, WASHINGTON POST, Nov. 2, 1998, at C–1.
340. GORDON-REED, supra note 248, at 206–09, 222.
341. Id.
342. BRODIE, supra note 8, at 584; Schwabach, supra note 3, at 68.
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1841. THE WORLD ALMANAC AND BOOK OF FACTS [1999] 495 (1998).
346. See generally GORDON-REED, supra note 248.
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343. BROWN, supra note 197, at 266; Schwabach, supra note 177, at 131.
344. BRODIE, supra note 8, at 587–88.
345. Johnson served as Vice-President under Martin Van Buren from 1837 to
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George Wythe, Jefferson’s mentor and law professor, freed his
slaves, including Lydia Broadnax, who was generally assumed to be his
mistress.343 Broadnax’s son Michael Brown, generally believed to have
been Wythe’s son as well, was murdered along with Wythe in 1806. In
his will, Wythe had provided that Michael should be brought up by
Thomas Jefferson, who was then President. Had Michael survived
Wythe, Jefferson would have been presented with another opportunity
to alter the course of race relations in the United States; would he have
raised Michael to be an attorney and, someday, power-broker, as Wythe
evidently wished, or would he have simply taught him carpentry or
some other trade, as he did with Sally Hemings’ sons?
Slightly later, Kentuckian Richard M. Johnson publicly
acknowledged that he had two daughters by Julia Chinn, a slave.
Johnson educated his daughters and attempted, despite snubs, to
introduce them into white society; he also willed them his property.344
He was rumored to have gone through a marriage ceremony with Julia
Chinn. Despite the scandal, Johnson was elected Vice-President of the
United States in 1836.345
Thus, contemporaries and peers of Jefferson saw slavery for the
evil institution that it was, and had the courage to do what was right.
The American public, while certainly willing to gossip about them,
forgave them and may even have admired them for it. Jefferson,
however, lacked that courage, whether because of the fear of damage to
his political fortunes, or for fear of how his “white” family would
react.346 Since Jefferson must have been aware that he possessed
sufficient political capital to do almost anything in his personal life, the
latter explanation actually seems more credible. This renders the
murder of Michael Brown all the more tragic; the legitimate daughters
and grandchildren who would have been offended by Jefferson’s
acknowledgement of his own illegitimate, mixed-race children would,
presumably, have been much less offended by his guardianship of
Wythe’s illegitimate, mixed-race child.
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G. Conclusion: What Does the Truth About Jefferson and Hemings
Mean to Us?
Now the truth about Eston Hemings Jefferson’s parentage is
generally accepted, and may serve to force a reexamination of
America’s early history. The Southern states, most importantly
Virginia, joined the Revolution (which would have been impossible
without them) out of fear that England would take away the
slaveholders’ “liberty” to own slaves.347 Monarchical England had
abolished slavery within its own borders in 1772,348 and was anxious to
extend that prohibition throughout its colonies.
Revolutionary America was not an ideal republic of philosopherkings, but a real country inhabited by real human beings. Like many
other states of its time, it allowed slavery and slave-trading. In the
context of his times, then, Jefferson was neither a monster nor a saint,
but simply a human being incapable of living up to his own highest
ideals. Those ideals were his contribution to posterity; it has fallen to us
to live up to them.
If there is a unifying theme to this trio of articles on Thomas
Jefferson and his relationship to the institution of slavery, it is that the
nation makes moral progress over time. Lander and Ellis wrote that
“[o]ur heroes . . . are not gods or saints, but flesh-and-blood humans,
with all of the frailties and imperfections that this entails.”349 Perhaps
they’re not heroes, either. Despite occasional periods of backlash and
regression, we are better than the Founding Fathers, as we hope that our
children will be better than us. Any other possibility is simply too
dismal to contemplate.
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347. Both North and South also resented England’s protection of Native
Americans.
348. Somerset v. Stuart, 12 George III A.D. (1771–1772) Lofft, 20 How. St. Tr. 1.
349. Lander & Ellis, supra note 285, at 14.
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