Did Virginia Law Prevent Thomas Jefferson From Freeing His Slaves?

Nearly two centuries after his death, Thomas Jefferson continues to be the subject of competing claims about his public policy and his private beliefs. Over time, public discussion of Jefferson waxes and wanes, but, of late, has heightened due to the publication of evangelical writer David Barton's new book, "The Jefferson Lies," a New York Times best seller.

Serious historians have dismissed Barton's book in various reviews, but Barton remains a favorite of evangelicals and social conservatives, recently appearing on numerous radio and television broadcasts. Perhaps his most noteworthy appearance was on very non-evangelical Jon Stewart's show, where Stewart failed to question any of Barton's claims about Jefferson.

Perhaps Stewart's challenge was absent because he didn't know where to start. There are many suspicious claims in Barton's book. Today, I will take just one. In "The Jefferson Lies," David Barton aims to defend Jefferson from charges of racial prejudice. To do so, he must address and explain the fact that Jefferson owned many slaves and did not emancipate them. In "The Jefferson Lies," Barton asks:

If Jefferson was indeed so antislavery, then why didn't he release his own slaves? After all, George Washington allowed for the freeing of his slaves on his death in 1799, so why didn't Jefferson at least do the same at his death in 1826? The answer is Virginia law. In 1799, Virginia allowed owners to emancipate their slaves on their death; in 1826, state laws had been changed to prohibit that practice.

Barton seriously misrepresents or misunderstands (or both) the legal environment related to slavery during Jefferson's life. In his book, Barton cites Virginia's 1782 law on manumission, which allowed slaves to be emancipated. He does not, however, quote it completely. Barton omits the section that indicates slaves could be freed by an owner with appropriate deed. In fact, many such slaves were freed by other owners, including fellow Virginian, Robert Carter, who freed all of his 452 slaves over the course of his lifetime, beginning with the filing of his "Deed of Gift" in 1791.

Here is the section of Virginia law quoted by Barton: "[T]hose persons who are disposed to emancipate their slaves may be empowered so to do, and ... it shall hereafter be lawful for any person, by his or her last will and testament ... to emancipate and set free, his or her slaves."

Now, here is the entire first section of the 1782 law on manumission:

[T]hose persons who are disposed to emancipate their slaves may be empowered so to do, and the same hath been judged expedient under certain restrictions: Be it therefore enacted, That it shall hereafter be lawful for any person, by his or her last will and testament, or by any other instrument in writing, under his or her hand and seal, attested and proved in the county court by two witnesses, or acknowledged by the party in the court of the county where he or she resides to emancipate and set free, his or her slaves, or any of them, who shall thereupon be entirely and fully discharged from the performance of any contract entered into during servitude, and enjoy as full freedom as if they had been particularly named and freed by this act.

Note the section above in bold print. This is the portion of the 1782 law Barton omits from the relevant section. This section allowed slave owners to release their slaves by a deed. Emancipated slaves needed a document which was recorded according to the law as proof of their status. This law allowed slave owners when they were alive to free their slaves, provided slaves were of sound body and older than 18 if a female and older than 21 if a male, but not above the age of 45. Thus, Jefferson could have freed many of his slaves within the law while he was alive. In addition to "The Jefferson Lies," Barton, in a recent radio program, emphatically stated that after 1782 slaves could only be freed at the time of a slaveholder's death. Not only was Jefferson legally permitted to free his slaves, he actually freed two slaves in the 1790s, Robert (1794) and James (1796) Hemings.

In "The Jefferson Lies," Barton then cites an 1806 Virginia law, and says,

...the law required that a freed slave promptly depart the state or else reenter slavery, thus making it almost impossible for an emancipated slave to remain near his or her spouse, children, or family members who had not been freed. Many, therefore preferred to remain in slavery with their families rather than become free and be separated from them.

In "The Jefferson Lies," Barton is correct that the 1806 law presented a hardship to slaves who might want to be emancipated and had a willing master as they would have to make a choice of remaining near their families and risk being sold into slavery again if they remained in the state longer than a year. While Barton is accurate in his book about the language of the 1806 statute on slavery, in a recent radio interview, he characterized the 1806 law as absolutely prohibiting the freeing of slaves. While the 1806 law stated that one could be re-captured by state authorities and sold back into slavery, John Henderson Russell in "The Free Negro in Virginia, 1619-1865" (published in 1913) asserts that the law was rarely enforced as he could find very few legal documents indicating that a freed slave had been captured and re-sold into slavery.

There is an additional change in the legal environment of slavery in Virginia that Barton does not cite in his discussion of Jefferson. In 1816 Virginia legislators "had bowed to economic, social and political realities and had allowed one 'escape hatch' from the trap of emancipation," writes Philip Schwarz. "That 'escape hatch' was that 'freed people could petition local courts to exempt them from exile on the grounds of 'their extraordinary merit' and 'good character.'" It seems entirely likely that a freed slave coming with a letter of recommendation from a former president and a favorite son of Virginia would have obtained an exemption from the re-capture provision. Jefferson did free five slaves on his death in 1826, but he transferred the ownership of about 260 to his heirs at that time. According to Schwarz, Jefferson "included in his will a request that the legislature of Virginia grant permission for his former slaves to remain in Virginia." If Jefferson could make that request for five slaves, it seems reasonable that he could have made that request for others.

Regarding Jefferson and the legal environment of slaves and their possible emancipation, Barton misrepresents both the 1782 and the 1806 laws regarding slavery. More significantly, what a tremendous act in support of human equality it would have been had Jefferson freed those of his slaves of the right age while he was President of the United States. He could have done so, but chose not to. One could argue that Jefferson was constrained by cultural conditions or by his own economic needs to have slaves, but he cannot be called a champion for the unfettered emancipation of slaves.

The above article is adapted from 'Getting Jefferson Right: Fact Checking Claims about Our Third President' by Warren Throckmorton and Michael Coulter. Click the link for more information about the book, or go to www.gettingjeffersonright.com.

 

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Comments

[Super Doodles]

01:01 AM on 06/19/2012

Read this comment after the next....
The one thing I could think of as to why he didn't free his slaves is seconded by this:
"We have the wolf by the ears, and we can neither hold him nor safely let him go. Justice is in one scale, self-preservation in the other." - Thomas Jefferson on slavery
I think this would also apply to the train of thought:
"The two principles on which our conduct towards the Indians should be founded, are justice and fear. After the injuries we have done them, they cannot love us" - Thomas Jefferson

[Super Doodles]

01:00 AM on 06/19/2012

"The hour of emancipation is advancing. . . this enterprise is for the young; for those who can follow it up, and bear it through to its consummation. It shall have all my prayers, and these are the only weapons of an old man." - Thomas Jefferson
"In a warm climate, no man will labour for himself who can make another labour for him. This is so true, that of the proprietors of slaves a very small proportion indeed are ever seen to labour. And can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are of the gift of God? That they are not to be violated but with his wrath? Indeed I tremble for my country when I reflect that God is just: that his justice cannot sleep for ever: that considering numbers, nature and natural means only, a revolution of the wheel of fortune, an exchange of situation, is among possible events: that it may become probable by supernatural interference!" - Thomas Jefferson
"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 have drawn indelible lines of distinction between them." - Thomas Jefferson
I do disagree with that second part, and I do believe that we have proven it today.

[phal4875]

02:56 PM on 06/07/2012

Jefferson was always short of money. He needed the slaves to allow him to continue living lavishly.

[cstargazer]

11:48 AM on 06/07/2012

"In fact, many such slaves were freed by other owners, including fellow Virginian, Robert Carter, who freed all of his 452 slaves over the course of his lifetime, beginning with the filing of his 'Deed of Gift' in 1791."

It may be a slight exaggeration to say that Robert Carter III's slaves were freed over the course of his lifetime. According the sources I read, Carter's 1791 Deed of Gift, drawn up when the slaveholder was already an old man (63 or 64), merely began a *gradual* process of manumission that continued for 50 years after his death. Now consider that Carter (grandson of the colonial Virginia planter Robert "King" Carter, from whom he inherited most of his wealth) did not pass away until 1804, the reality is very different and far more complex.

It's worth reading or listening to this brief NPR piece about Carter, his idealism, mixed motives, his possibly contested will, and his place in history.

http://www.npr.org/programs/watc/features/2001/antijefferson/010901.antijefferson.html

[Warren Throckmorton, Ph.D.]

08:34 AM on 06/08/2012

I advise going right to an important work on Carter which is Andrew Levy's book The First Emancipator: The Forgotten Work of Robert Carter the Founding Father Who Freed His Slaves. The details are there. Carter's role as owner was over in 1797 but he had to keep intervening in the lives of freed people to maintain their freedom. After his death, that role fell to those he designated. They did not always follow through as he would have but his role in freeing his slaves in that time and that place cannot be minimized. Levy documents the negative reaction of his neighbors to his actions, and eventually Carter moved to Baltimore.

[Dr Idris]

11:21 PM on 06/06/2012

Just an added comment-I can't believe Jon Stewart did not know enough to pointedly confront Barton with the obvious. That Jefferson was a Deist; that he didn't even include "Creator" in the first draft of the Declaration; only Nature. That said Creator was completely NATURAL and had nothing to with the Bible. That he thought Jesus nothing more than a moral teacher. Period. His ideas were closer to Stoicism, which at that point in his life, he thought superior to Christianity, along with other Greek philosophies There is much more. And with Ray Bradbury on peoples minds today, David Barton's History, is indeed, "Fahrenheit 451" History. Remember in the book, the official line that Ben Franklin founded the fire Dept. in order to burn books? ! Barton and the rest from Glennbeckistan are living in a surreal alternate reality; it has nothing to do with American History. "annuit coeptis"; Novus Ordo Seclorum.

[Super Doodles]

12:30 AM on 06/19/2012

"I, too, have made a wee-little book from the same materials, which I call the Philosophy of Jesus; it is a paradigma of his doctrines, made by cutting the texts out of the book, and arranging them on the pages of a blank book, in a certain order of time or subject. A more beautiful or precious morsel of ethics I have never seen; it is a document in proof that I am a real Christian, that is to say, a disciple of the doctrines of Jesus, very different from the Platonists, who call me infidel and themselves Christians and preachers of the gospel, while they draw all their characteristic dogmas from what its author never said nor saw. They have compounded from the heathen mysteries a system beyond the comprehension of man, of which the great reformer of the vicious ethics and deism of the Jews, were he to return on earth, would not recognize one feature." - Thomas Jefferson

[Super Doodles]

12:30 AM on 06/19/2012

"Difference of opinion is advantageous in religion. The several sects perform the office of a Censor morum over each other. Is uniformity attainable? Millions of innocent men, women, and children, since the introduction of Christianity, have been burnt, tortured, fined, imprisoned; yet we have not advanced one inch towards uniformity. What has been the effect of coercion? To make one half the world fools, and the other half hypocrites. To support roguery and error all over the earth. Let us reflect that it is inhabited by a thousand millions of people. That these profess probably a thousand different systems of religion. That ours is but one of that thousand. That if there be but one right, and ours that one, we should wish to see the 999 wandering sects gathered into the fold of truth. But against such a majority we cannot effect this by force. Reason and persuasion are the only practicable instruments. To make way for these, free enquiry must be indulged; and how can we wish others to indulge it while we refuse it ourselves?" - Thomas Jefferson
"Our particular principles of religion are a subject of accountability to our god alone. I enquire after no man's and trouble none with mine; nor is it given to us in this life to know whether yours or mine, our friend's or our foe's, are exactly the right." - Thomas Jefferson

[Area Reader]

09:45 PM on 06/06/2012

Thank you for the interesting thoughts on this subject. It's a very complex part of our history, not just ethically and morally, but also legally, with a great morass of complicated and contradictory laws, and although it's vitally important to look at the statutes at the time of the historical event being discussed, the standard practice and even the decisions of courts may not have followed the actual statutes.

[inapickle]

01:30 AM on 06/07/2012

The author does mention that other Virginia planters successfully freed slaves during the period, so the reality of emancipation as well as its legality must have been upheld. Jefferson did indeed successfully free the five chosen slaves at the time of his death, which Barton claims was impossible .Lastly, If anyone had the power to make sure the statutes were upheld, it would have been Jefferson: he was a man of extraordinary prominence.