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Warren Throckmorton, Ph.D. Headshot

Did Virginia Law Prevent Thomas Jefferson From Freeing His Slaves?

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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.