Could Jefferson Have Done More to End Slavery?

It is today all too customarily asserted that anyone who owned slaves in the pageantry of American history was racist. The argument goes something like this:

Slave-owning is a racist practice, so, anyone owning slaves is racist.

There is, of course, much to unpack in the argument. First, it wrongly assumes that all slavery comprised Whites owning Blacks. Second, it wrongly assumes that slavery occurred only in Colonial America. Third, it assumes that slaves were made slaves on account of their race.

There is nothing explicitly said of those persons not owning slaves, but it is frequently assumed that anyone not owning slaves during America’s slave-holding days was somehow morally superior to any slave-owner. A friend and colleague, for instance, recently reacted to one of my FaceBook posts: “At least, John Adams did not own slaves, and would never have owned them, if given the opportunity.” The comment was a jab at Thomas Jefferson, who inherited slaves from his father and his father-in-law—he owned some 600 throughout his life—freed very few during his life and upon his death.

What Jefferson Did Do

Jefferson did much as a lawyer to represent the interest of enslaved Blacks. He took up the case for the freedom of the slave Samuel Howell in Howell v. Netherland (1770). Samuel Howell and his younger brother ran away from their master Wade Netherland. Netherland placed a notice about the runaway slaves in the Virginia Gazette on August 8, 1770. Netherland retrieved Howell, who, with Jefferson as his lawyer, later appealed to the General Court for his freedom. Virginian law at the time disallowed the freedom of slaves “except for some meritorious services, to be adjudged and allowed by the Governor and Council,” so the case was stacked against Jefferson.[1]

Howell’s great-grandmother was a white woman, who was impregnated by a black man. His grandmother was born after 1705 and was bound to servitude according to law till 31 years of age. She then gave birth to Howell’s mother, and the same law was applicable to her. Samuel Howell was born in 1742 and he too was bound to servitude for 31 years. Sold to Joshua Netherland, Howell, at 28, brought a suit against Netherland to attain his freedom, though he had only three more years of servitude remaining.

Jefferson gave two arguments, each radically different, in defense of Howell.

First, Jefferson argued lack of precedent. On assumption that Howell was bound by law for 31 years of servitude, when he was sold to Netherland, the legality of servitude ended. Bond servants are not alienable. A law bound the child of the offspring of a black man and white woman to servitude (1705), and a second law was implemented years later (1723) to bind the children of the offspring.[2] Yet, there was no law to cover third-generation children. Thus, Jefferson argued for freedom on the grounds of a lack of precedent.

Second, Jefferson argued daringly that all persons by the law of nature are free. Attending on the first argument concerning lack of precedent, he began:

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. 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, because necessary for his own sustenance. 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 to every degree of descendants.

What elicits attention here is Jefferson’s appeal to the law of nature as the ultimate arbiter of the law. Under the law of nature, each man, being free in mind and in body, has “a right to his own person.” This “personal liberty” is God-given and thus, cannot be rescinded by men. Thus, Howell, free by nature, cannot be deemed property of another, irrespective of any law, implicit or explicit. That noted, the laws binding the first and second generations of children of a Black and a White are naturally void. This was a daring argument at the time—one given full expression six years later in his Declaration of Independence—and certainly did more to help Jefferson lose than win the case.

Jefferson’s arguments proved inconsequential, and the case was awarded to Netherland before his lawyer, George Wythe, could reply to Jefferson’s argument. Jefferson writes, “Wythe, for the defendant, was about to answer, but the Court interrupted him, and gave judgement in favor of his client.”[3] The Court was not ready and willing to entertain the notion of Blacks being free and the equals of Whites.

Many scholars, citing the case, wax skeptical of Jefferson’s motivation. Douglas Egerton is typical. “Some historians suggest that this incident and Jefferson’s early appeal to the notion that ‘every one comes into the world with a right to his own person’ reveal his hidden antislavery ideals. Yet Howell was neither a slave nor an African, and one wonders if Jefferson would have taken up the case had his client not been light skinned.”[4]

Egerton’s skepticism cannot be maintained. Scrutiny of Jefferson’s case book, fee books, and docket books shows that Jefferson undertook six cases pro bono, not one, on behalf of slaves seeking freedom, and he never represented parties who aimed to return persons to their state of slavery.[5] That he undertook such cases at his own expense says much about Jefferson’s concern about at-birth human equality and his detestation of the institution of slavery. Moreover, Jefferson’s argument that all humans are by nature free rules against degree of black blood or of darkness of skin. Humans, free in mind and body, were not distributable property like cattle. Scholars who clamor for Jefferson’s racism conveniently overpass Jefferson work on behalf of black slaves as a lawyer.

In 1774, his Summary View on the Rights of British America was published. Addressing King George III, Jefferson writes:

The most trifling reasons, and sometimes for no conceivable reason at all, his majesty has rejected laws of the most salutary tendency. The abolition of domestic slavery is the great object of desire in those colonies, where it was unhappily introduced in their infant state. But previous to the enfranchisement of the slaves we have, it is necessary to exclude all further importations from Africa; yet our repeated attempts to effect this by prohibitions, and by imposing duties which might amount to a prohibition, have been hitherto defeated by his majesty’s negative: Thus preferring the immediate advantages of a few African corsairs to the lasting interests of the American states, and to the rights of human nature deeply wounded by this infamous practice.[6]

The same argument concerning George III’s unwillingness to use his “negative” to abort unjust proposals is in his first draft of Declaration of Independence, two years later.[7] Jefferson here lists a “long train of abuses & usurpations,” at the hand of King George III. Those, he adds, are “begun at a distinguished period, & pursuing invariably the same object.” Those abuses are indicative of “arbitrary power,” and it is the right, even duty, of those abused to throw off such discretionary abuse of authority and establish such government, by consent of the people, in accordance of the will of the people.

The abuses Jefferson limns are many, at least 25—some complaints he lists are compound claims—and he lists last and devotes the most ink to introduction of slavery into the colonies.

he has waged cruel war against human nature itself, violating it’s most sacred rights of life & liberty in the persons of a distant people who never offended him, captivating & carrying them into slavery in another hemisphere, or to incur miserable death in their transportation thither. 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 & 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 has deprived them, & murdering the people upon whom he also obtruded them; thus paying off former crimes committed against the liberties of one people, with crimes which he urges them to commit against the lives of another.[8]

Some things are worth underscoring in his draft.

First, there is Jefferson’s use of capital letters for the word men. Nowhere else in his draft does he do use capitals. That shows philosophically and unequivocally that Jefferson considered Blacks as men, not as chattel, and that argues decisively against the Equality₂ Thesis of the previous chapter. Blacks, qua men, are deserving of the same axial rights as all other men.

Second, Jefferson accuses the king of Tartuffery. George III is a “Christian king,” yet he is guilty of “piratical warfare”: taking people, who have done nothing to offend him, and conveying them like cattle to America. The king, of course, did not introduce slavery to America, and Jefferson is not accusing George of that. That occurred in 1619, when Dutch merchants brought 20 African slaves to Jamestown, Virginia. Those who settled in America ultimately found Africans to be a cheaper and more abundant labor source than indentured servants, mostly penurious Europeans, and so the practice continued. Yet the king, Jefferson asserts, has “prostituted his negative”—that is, he has availed himself of none of presumably numerous legislative opportunities for nullifying or even minifying slave trading. George III could have put an end to the transplantation of Blacks, but he did not.

Third, there is a layered argument in the Declaration of Independence that has hitherto gone unnoticed. George III has been implicitly sanctioning the opprobrious institution, which strips men of their God-given rights and makes commercial gains of them without their sanction of will, by refusal to stop the slave trade. While colonists make slaves of the Blacks brought to the colonies, George, through abuses and usurpations, makes slaves of his colonial subjects. Thus, there are two levels of slaves: colonists, who are not deserving of the same rights and treatments of other British citizens perhaps because of their transplantation, and transplanted Blacks, who are the property of the colonists or the slaves of the slaves. Is that itself significant? It is difficult to say. Jefferson might have in mind two notions. One, introduction of slavery is a means of keeping colonists preoccupied with slaves, so that they will not see that George is making slaves of them. Second, getting colonists inured to the institution of slavery—to men of one kind treating men of another kind as inferiors—will make them somewhat less uncomfortable with being treated as slaves—viz., as men without rights. Here however I merely speculate.

Yet George III then hypocritically encourages the slaves of the slaves, Blacks who have been stripped of their humanity by being stripped of their rights, to rise up in revolt against their white masters by joining the British in the Revolutionary War. His inducement is freedom from their insufferably oppressive condition—a condition for which he, through his own refusal to act, is in large part  responsible. Yet by the same argument, the colonists, stripped of their humanity by being stripped of their rights, are entitled to rise up against the king, as George III is implicitly sanctioning a generic argument that any people stripped of their rights have a right to revolt. Thus, the king himself is thereby sanctioning implicitly colonial revolution!

Fourth, in giving birth to the layered argument in the passage and in underscoring the king’s Tartuffery, Jefferson must have often reflected on the Tartuffery of colonists, who have taken in the transported Blacks and accepted them as slaves. That the king might be responsible for the transplantation of slaves to the continent does not exculpate colonists for using the slaves as slaves. A person, knowing certain goods to be stolen and accepting them as a gift, is equally guilty and deserving of inculpation as the stealer. A difficulty is that these first Africans were likely treated like indentured servants, not slaves. If so, then we return to the issue, discussed in the prior chapter, of degrees of slavery. The process from indentured servants to slaves was then gradual.[9] That invites debate concerning the issue of degrees of inculpation.

Finally, the undue length and the placement of the passage in Jefferson’s first draft are revelatory. There are 168 words in the passage. No other grievance comes near to it in length. That argues for the strength of Jefferson’s conviction that slavery is opprobrious. Moreover, that Jefferson positions the lengthy grievance in the last place is indicative that he considers the grievance to be his coup de grace.

Those things noted, there is something strained in the passage. Carl Becker writes: “The passage is clear, precise, carefully balanced. It employs the most tremendous words—‘murder,’ ‘piratical warfare,’ ‘prostituted,’ and ‘miserable death.’ But in spite of every effort, the passage somehow leaves us cold.” It is “calm and quiescent,” lacking in warmth, and fails to move us. Readers get a sense of “labored effort”—that is, of “deliberate striving for an effect that does not come.”[10]

Becker is right but fails to recognize the reason: the hypocrisy of the colonists, Jefferson included. He blames the king of sanctioning slavery by not stopping the exportation of slaves to America, but he nowise addresses the issue of the colonists putting transmigrated Blacks to work as slaves. The guilt here must be shared.

That stated, we must acknowledge the entrenchment of slavery at the time—the year is no longer 1619—and the South’s economic dependency on it. In that regard, the issue of eradication of the vile institution is like the United States’ position today on global warming. Implementation of immediate actions to combat global warming will not be without serious short-term economic implications for the country, hence the country’s reluctance to take action.

Jefferson’s anti-slavery passage was excised by Congress, and so it did not appear in the Declaration of Independence. The reason was certainly that slavery, widely practiced in the South, was a divisive issue and the Declaration of Independence was to be a pronouncement about which all states would be in agreement. Inclusion of the lengthy grievance, Jefferson should have seen, would have been reason for large dissention among members of Congress. The moment was kairotic and dissention needed to be avoided at all costs.

Jefferson expressed contempt that the excised passage was not included in the final draft. He said in notes on the Continental Congress: “the clause…, reprobating the enslaving the inhabitants of Africa, was struck out in complaisance to South Carolina & 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 censures; for tho’ their people have very few slaves themselves yet they had been pretty considerable carriers of them to others.”[11]

Hypocrisy aside, Jefferson is to be lauded for articulating his anti-slavery views in his draft of the document, even if the paragraph was axed. By doing so, he was sticking out his neck, so to speak, by placing himself at odds with most others from the South, his own state especially, on slavery. The passage did reach the hands of others in the Congress and Jefferson’s opposition to slavery became widely known by members. In that regard, the excised passage was not without effect.

Just prior to his writing the Declaration of Independence, Jefferson crafted a draft of a constitution for Virginia (June, 1776). Jefferson writes to Augustus Elias Brevoort Woodward (3 Apr. 1825):

I was then at Philadelphia with Congress; and knowing that the Convention of Virginia was engaged in forming a plan of government, I turned my mind to the same subject, and drew a sketch or outline of a Constitution, with a preamble, which I sent to Mr. Pendleton, president of the convention, on the mere possibility that it might suggest something worth incorporation into that before the Convention.

That proposed constitution is perhaps the earliest instantiation of key principles of Jefferson’s political philosophy. In it, Jefferson writes concerning slavery, “The General assembly shall not have to power to … permit the introduction of any more slaves to reside in this state, or the continuance of slavery beyond the generation which shall be living on the 31st day of December 1800; all persons born after that day being hereby declared free.”[12]

Jefferson’s draft of a constitution for Virginia arrived in Edmund Pendleton’s hands too late. Congressman George Mason had already drafted a constitution that had been debated, altered, and adopted. Not all was in vain. Jefferson’s preamble, with its long list of grievances, directed at George III, was adopted and added to the constitution.[13]

Also in 1776, Jefferson began work as part of a five-man committee to revise the outdated laws of Virginia. When two of the members dropped out due to lack of acquaintancy with legal matters, Jefferson, Edmund Pendleton, and lawyer and close friend George Wythe undertook the enormous task. By 1779, they composed 126 bills to be introduced into Virginia’s congress and debated.

Bill 51, crafted by Jefferson, concerned slavery and other issues pertaining to the welfare of Blacks in Virginia.

The bill begins, “Be it enacted by the General Assembly, that no persons shall, henceforth, be slaves within this commonwealth, except such as were so on the first day of this present session of Assembly, and the descendants of the females of them.” The sentiment is that no more slaves, on the passing of the bill, will be admitted into the state. The writing, as it were, was already on the wall. From 1620, when slaves were first introduced to North America to 1700, some 21,000 slaves were imported; from 1701 to 1760, the number rose nine-fold (189,000); and from 1761 to 1770, the drop was two-thirds (63,000).[14]

In other respects, the bill was conservative vis-à-vis the behavior of Blacks. There was a proviso for emancipating slaves:

It shall not be lawful for any person to emancipate a slave but by deed executed, proved and recorded as is required by law in the case of a conveyance of goods and chattels, on consideration not deemed valuable in law, or by last will and testament, and with the free consent of such slave, expressed in presence of the court of the county wherein he resides: And if such slave, so emancipated, shall not within one year thereafter, depart the commonwealth, he shall be out of the protection of the laws. All conditions, restrictions and limitations annexed to any act of emancipation shall be void from the time such emancipation is to take place.

Other provisos regulating the conduct of Blacks preserved the notion, captured in the earlier laws, that Blacks were chattel. Blacks were disallowed to act as witnesses in courts of law, except in testifying against other Blacks or in cases in which only Blacks are concerned. They were disallowed to leave the premises of their owner without a pass. They were not allowed to keep arms. Finally, “Riots, routs, unlawful assemblies, trespasses and seditious speeches by a negro or mulatto shall be punished with stripes at the discretion of a Justice of the Peace; and he who will may apprehend and carry him before such Justice.”[15]

The conservative nature of the bill was in keeping with the overall modus operandi of the reformers—not “to abrogate our whole system,” which to be consistent and “systematical” would have to be “the work of one hand,” and no one hand was up to that Brobdingnagian task.[16]

In 1778, Jefferson brought a bill before Congress to prohibit the importation of slavery in Virginia. He writes in his Autobiography:

The first establishment in Virginia which became permanent was made in 1607. I have found no mention of negroes in the colony until about 1650. The first brought here as slaves were by a Dutch ship; after which the English commenced the trade and continued it until the revolutionary war. That suspended, ipso facto, their further importation for the present, and the business of the war pressing constantly on the legislature, this subject was not acted on finally until the year 78. when I brought in a bill to prevent their further importation. This passed without opposition, and stopped the increase of the evil by importation, leaving to future efforts its final eradication.[17]

The bill which Jefferson brought into Congress reads as follows:

To prevent more effectually the practice of holding persons in Slavery and importing them into this State Be it enacted by the General Assembly that all persons who shall be hereafter imported into this Commonwealth by Sea or by Land whether they were bond or free in their native Country upon their taking the Oath of Fidelity to this Commonwealth shall from thenceforth become free and absolutely exempted from all Slavery or Bondage to which they had been subjected in any other State or Country whatsoever. That it shall and may be lawful for any person by Deed duly executed in the presence of two or more Witnesses and acknowledged or proved and recorded in the General Court or Court of the County where he or she resides within eight Months from the making thereof or by their last Will and Testament in writing fully and absolutely to manumit and set at Liberty any Slave or Slaves to which they are entitled, But no Slave absconding from the owner who resides in any of the thirteen united States of America, or any other state in amity with them, and coming into this commonwealth, or coming with the owner to dwell here, or attending him as a Servant, or falling to any Inhabitant of this Commonwealth by Marriage Will or Inheritance and not brought to be sold, shall not become free, And if any Slave manumitted shall, within years thereafter, become chargeable to a Parish, the former owner, or his Executors or Administrators shall be compelled to reimburse the expenses of his or her maintenance, And so much of the Act of general Assembly made in the year of our Lord one thousand seven hundred and fifty three intitled “an act for the better government of Servants and Slaves” as is contrary to this act, is hereby declared to be repealed.[18]

Jefferson’s account of the bill in his Autobiography does not state that he authored the bill, only that he introduced the bill to Congress, so authorship cannot be assumed. Once introduced, it was made law in the following year.

Query XVIII of Notes on the State of Virginia, published in English in 1787, is devoted to articulation of the “particular customs and manners” in Virginia. The whole of the lengthy paragraph, which I have critically examined and appraised in chapter 2, is devoted to the heinousness of slavery. I summarily iterate the findings here.

Jefferson begins with an argument concerning the corruptive effects of slavery on slaveholders. “The parent storms, the child looks on, catches the lineaments of wrath, puts on the same airs in the circle of smaller slaves, gives a loose to his worst of passions, and thus nursed, educated, and daily exercised in tyranny, cannot but be stamped by it with odious peculiarities.” Slavery brings out the most boisterous passions in slaveholders and that tyranny is passed on to their children.[19]

Jefferson next argues that slavery destroys the industry of slaveholders. “No man will labour for himself who can make another labour for him.” He then states that given the natural and God-dictated state of affairs—that all men are free—Americans must be cautious apropos the wrath of God. “[God’s] justice cannot sleep for ever.” There could be a “revolution of the wheel of fortune.” The slaveholders might readily find themselves to be the slaves of those who are now slaves.[20]

As I note in chapter 2, there is nothing in Query XVIII which shows that the issue for Jefferson is one of race. It is not. Jefferson’s focus is the vileness of slavery, which is obliquitous because it corrupts those who practice it—“the most unremitting despotism”—and debases those who suffer from that practice—“the most … degrading submission.” He writes of the “unhappy influence on the manners of our people,” of the “commerce between master and slave,” of “the parent,” “the child,” of “the circle of smaller slavers,” of “one half of the citizens [trampling] on the rights of the other,” of “despots” versus “enemies,” and of destroying “the morals of one part, and the amor patriæ of the other.” Nowhere are the terms Blacks, Negroes, Africans, Whites, and Europeans to be found. It is astonishing that that has not been noted in the secondary literature, much of which is intent on indicting Jefferson for racism.

Jefferson was concerned about what he wrote on Blacks and slavery, not because of fear of being thought racist—that is a modern concern—but because of fear of negative implications of his anti-slavery utterances. He writes to James Madison (11 May 1785): “There are sentiments on some subjects which I apprehend might be displeasing to the country perhaps to the assembly or to some who lead it. I do not wish to be exposed to their censure, nor do I know how far their influence, if exerted, might effect a misapplication of law to such a publication were it made.” Jefferson’s worry is that he might do more to retard the issue of Blacks’ eventual emancipation by championing Blacks’ rights than to hasten it. There was never the concern that his ideas might be taken as “racist.” That notion did not then exist.

In his 1784 Report on the Government for Western Territory, Jefferson lists five provisos for “temporary and permanent Governments in the “Western territory.” The last is as follows, “After the year 1800 of the Christian æra, there shall be neither slavery nor involuntary servitude in any of the said states, otherwise than in punishment of crimes, whereof the party shall have been duly convicted to have been personally guilty.” Congress enacted the report into law in 1787 as the Ordinance of 1787 or Northwest Ordinance.

The proviso on slavery was excised, as that proposal failed to pass Congress by one vote. It was then law that no motion could be passed unless supported by delegations of seven states. The delegate from New Jersey, who was favorably disposed to the measure, was ill and could not vote. Jefferson recalls the incident in his Autobiography:

There were ten states present. Six voted unanimously for it, and one was divided; and seven votes being requisite to decide the proposition affirmatively, it was lost. The voice of a single individual of the State which was divided [New Jersey] … 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! But it is to be hoped it will not always be silent, and that the friends to the rights of human nature will in the end prevail.[21]

In his Sixth Annual Message (1806) as president, Jefferson writes with approbation of Congress’ efforts to prohibit importation of slaves:

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 cannot be completed before that day.[22]

He then introduced a bill to Congress “to prohibit the importation of slaves into any port or place within the jurisdiction of the United States.” Congress passed the bill, which Jefferson signed on January 1, 1808.

Finally, as mentioned in the introduction of this chapter, Jefferson also freed Robert and James Hemings in the 1790s, and five other slaves after his death on July 4, 1826.

Thus we have evidence of at least four decades of actions designed to eliminate slavery or minify its effects.

A widespread complaint concerning Jefferson’s views on slavery by today’s scholars is inauthenticity, unctuousness, or inconsistency—that is, that his condemnation of slavery was merely lip reverence. The argument goes thus. Jefferson spoke freely, boldly, and consistently against the turpitude of slavery, yet he did little or next to nothing to eradicate the institution. In the words of Paul Finkelman, who has been perhaps the most severe and unrelenting critic of Jefferson, “In the fifty years from 1776 until his death in 1826, a period of extraordinary public service, he did little to end slavery or to dissociate himself from his role as the master of Monticello. … Nor did he encourage his countrymen to liberate their slaves, even when they sought his blessing.”[23] The reasons, according to him and other scholars, were that it would have cramped his manner of living large, that he had deep-rooted animus toward Blacks due to hatred, that he discovered that Blacks’ labor was highly profitable, that he had a subconscious lust for black women, and that he was so immersed in other matters that he acted as if black slaves had already been freed, and so on. Thus, the argument from inauthenticity is implicit in most of the arguments proffered in chapter 1 for Jefferson’s racism.

Yet as the preceding section shows, it is blithe to say that Jefferson did little or nothing to eradicate the institution of slavery, or at least, to minify its inimical effects. Writes Gilbert Chinard: “No New Englander had done more to promote the cause of abolition than Jefferson; on two occasions he had proposed legislative measure to put an end to the scourge of slavery and he had never ceased to look for a solution that would permit the emancipation of the slaves without endangering the racial integrity of the United States.”[24] It is fair to say that throughout his legal and political career, Jefferson was at the forefront of the movement to eradicate the institution. Finkelman’s wording, upon scrutiny, is careful. He argues, in effect, from effects: Nothing Jefferson did concerning slavery had full effect, therefore, he did nothing.

With that acknowledged, it is correct to note that Jefferson could have done more—at least, he could have tried to do more. He did not, though there were opportunities for action—e.g., the 1814 letter of Coles (chapter 4). In the words of David Post: “Make no mistake about it—Jefferson surely could have done more, in his public life, for the anti-slavery cause than he did.  He missed—or perhaps it would be more accurate to say he refused to take—many opportunities to press the fight.” In his retirement, “perched on his mountaintop at Monticello, he turned aside many pleas to lend his considerable prestige to the growing abolitionist movement, preferring, instead, to maintain an enigmatic silence on the question.”[25]

Jefferson’s silence in retirement is not so enigmatic. The reasons were three: retirement, generational sovereignty, and timelines.

I begin with the argument from retirement.

Public service, especially at the level of the federal government was extraordinarily trying, difficult.  Pay was incommensurate with duties and very often political duties tore one away from other monetary concerns—e.g., in Jefferson’s and Washington’s cases, from overseeing their agricultural affairs. Thus, political office was not undertaken for monetary gain. Jefferson often referred to political offices as “burthens.” He says, for instance, to Richard Henry Lee (17 June 1779), “In a virtuous government, and more especially in times like these, public offices are, what they should be, burthens to those appointed to them, which it would be wrong to decline, though foreseen to bring with them intense labour, and great private loss.” It is a sentiment he iterates and reiterates throughout his years of public service.[26] Duty calls a man to action, and he fulfills his political office to the best of his capacity.

Yet the times were demanding—demanding, yet intriguing. The abuses of George III led to thoughts of revolution, and if successful, notions of governmental construction toward republican ideals. Jefferson—a man of uncommon intellect and purity of imagination—was forced by a sense of duty into political action, chiefly accomplished through his pen. He abandoned his legal practice in 1776 and threw himself completely into politics. He devoted nearly 40 years of his life—the prime years of his life—to serving others in the drudgery of political offices.

A lifelong public servant could expect no personal gains other than notoriety, which was less important to Jefferson than to others like Hamilton, and the sense of accomplishment that comes with service to a worthwhile cause. Much was lost. As governor of Virginia, minister to France, secretary of state, vice president, and president, Jefferson would sacrifice the intimacy of domestic life at Monticello through daily interaction with his family, much relished quiet time for study, and direct control of his agricultural affairs and other affairs related to income at Monticello and elsewhere—e.g., his nailery. Income-generating affairs would always suffer during his lengthy political absences.

Yet what was perhaps the greatest sacrifice was time lost with his wife, Martha, who died in 1782 after a difficult childbirth just 10 years into their marriage. Writes James Thompson of Jefferson’s inordinate grief on her passing, “With the growing political demands of the onset of the Revolutionary War, Jefferson became increasingly involved in both local and Continental political affairs at the expense of his relations with Martha and his family.” His extraordinary grief after her death “suggests a mind tortured by regrets,” as if “he finally admitted to himself that he had allowed his political crusades to replace his wife as the focus of his life.”[27] Jefferson himself tells John Dickinson in 1791 of the difficulties and uncertainties of Revolutionary times. “They know for what objects we relinquished the delights of domestic society, tranquillity, and science, and committed ourselves to the ocean of revolution, to wear out the only life God has given us here in scenes the benefits of which will accrue only to those who follow us.”

When he left the presidency, Jefferson was nearing 65 years of age. He had had enough of serving the public and he was then serving in the young nation’s highest office. Political office had become an Augean task. He writes to Charles Thomson (11 Jan. 1808) of the drudgery of politics on an old man. “The principal effect of age of which I am sensible is an indisposition to be goaded by business from morning to night, from laboring in an Augean stable, which cleared out at night presents an equal task the next morning. I want to have some time to turn to subjects more congenial to my mind.” Jefferson had more than fulfilled his duties to his state and his country. He had earned to have whatever time he had remaining as his own.

Jefferson was clear in numerous writings that no republican government can be hale and thrive without full participation of all citizens inasmuch as their time and talents would allow. Yet no state, Jefferson says in a 1782 letter to James Monroe (May 20), just prior to the passing of his wife, has a right to demand an indefinite period of service of its citizens:

tho’ I will admit that this does subject every individual if called on to an equal tour of political duty yet it can never go so far as to submit to it his whole existence. If we are made in some degree for others, yet in a greater are we made for ourselves. It were contrary to feeling & indeed ridiculous to suppose that a man had less right in himself than one of his neighbors or indeed all of them put together. This 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. Nothing could so completely divest us of that liberty as the establishment of the opinion that the state has a perpetual right to the services of all it’s members. This to men of certain ways of thinking would be to annihilate the blessing of existence; to contradict the giver of life who gave it for happiness & not for wretchedness; and certainly to such it were better that they had never been born. However with these I may think public service & private misery inseparably linked together, I have not the vanity to count myself among those whom the state would think worth oppressing with perpetual service.

In sum, a government that aims to keep out of citizens’ personal matters is not worth having if amaranthine public service allows one no time for personal matters.

The letter, certainly written because of his wife’s moribundity, nonetheless echoes a Stoic argument that each person has a right to a philosophical seclusion of sorts after years of public service. The sentiment that continual engagement in social affairs makes difficult equanimity is suffuse in the writings, for instance, of the Roman Stoic Seneca. That seclusion is to be a person’s own time to be devoted to activities of his own choosing. Yet even then will a good citizen serve the public. Seneca says, “No person is so completely secluded from activities that he has no opportunity for virtuous activity.”[28]

Following Seneca, the sphere of one’s activities in retirement ought to be exclusively of one’s choosing. Jefferson chose intimacy with his family as well as educational reform, which would take the form of birthing the University of Virginia.

Second, there is the issue of generational sovereignty and its full implications, which can be quickly discussed, as it is covered fully in chapter 4. The notion of generational sovereignty is for Jefferson an axial principle of his political philosophy. Each generation, upon reaching maturity, is sovereign. It can, independently of the generation prior to it, decide the political direction of the country through periodic conventions, designed to overhaul the Constitution. Such changes are not discretionary and illustrations of Jefferson’s political relativism, as scholars from Dumas Malone to Adrienne Koch have said, but progressive, in keeping with scientific advances of all sort—here grasping “science” in the broadened sense of its time—and greater access to them.[29] Thus, when the forthcoming generation reaches maturity, it is time for the preceding generation to step aside.

In a letter to Joseph Willard (24 Mar. 1789), Jefferson articulates the notion of generational sovereignty and how it calls, at the right time, each generation to do its part. “It is for such institutions [of Natural History and Natural Science] … to do justice to our country, its productions and its genius. It is the work to which the young men, whom you are forming, should lay their hands. We have spent the prime of our lives in procuring them the precious blessing of liberty. Let them spend theirs in shewing that it is the great parent of science and of virtue; and that a nation will be great in both, always in proportion as it is free.” In sum, Jefferson has spent some 40 years of his life in an effort to eliminate or minify the effects of slavery. It is the duty of the younger generation to bring elimination to full effect.

In an 1814 letter to Edward Coles (Aug. 25), Jefferson excuses himself from further actions apropos of emancipation. “I am sensible of the partialities with which you have looked towards me as the person who should undertake this salutary but arduous work. But this, my dear sir, is like bidding old Priam to buckle the armour of Hector…. I have overlived the generation with which mutual labors & perils begat mutual confidence and influence. 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, & these are the only weapons of an old man.”

Finally, there is the issue of timeliness—the most significant reason for his sluggishness on slavery later in life. Jefferson always believed that one could push an issue too quickly and by doing that, do more harm than good. To Nicholas Lewis (9 Feb. 1791), he states: “There are certainly persons in all the departments who are for driving too fast. Government being founded on opinion, the opinion of the public, even when it is wrong, ought to be respected to a certain degree.” Public opinion on the issue of slavery, Jefferson had come to believe, was too divided—slavery was too much a part of Southern culture and economics—for eradication of the institution by any quick stroke. “I have long since given up the expectation of any early provision for the extinguishment of slavery among us,” writes Jefferson to William Burwell (28 Jan. 1805). “There are many virtuous men who would make any sacrifices to affect it,” he continues, “many equally virtuous who persuade themselves either that the thing is not wrong, or that it cannot be remedied, and very many with whom interest is morality. The older we grow, the larger we are disposed to believe the last party to be.” There are, Jefferson is saying, a large number of citizens pro-eradication, a large number con-eradication, and also a very large number who feel morally engaged because they have interest in the topic without an opinion. The time is just not right, as eradication does not have the consent of the general citizenry.

Another 1805 letter is decisive. Jefferson receives a letter from Thomas Brannagan, who has enclosed a paper on slavery. Jefferson, indecisive about replying to the letter, states to George Logan (11 May 1805):

The cause in which he embarks is so holy, the sentiments he expresses in his letter so friendly that it is highly painful to me to hesitate on a compliance which appears so small. But that is not it’s true character, and it would be injurious even to his views, for me to commit myself on paper by answering his letter. I have most carefully avoided every public act or manifestation on that subject. Should an occasion ever occur in which I can interpose with decisive effect, I shall certainly know & do my duty with promptitude & zeal. But in the meantime it would only be disarming myself of influence to be taking small means. The subscription to a book on this subject is one of those little irritating measures, which, without advancing it’s end at all, would, by lessening the confidence & good will of a description of friends composing a large body, only lessen my powers of doing them good in the other great relations in which I stand to the publick.

Some 20 years later, Jefferson gives a similar reply in a letter to James Heaton (20 May 1826), who too urged Jefferson to act:

The subject of your letter of April 20, is one on which I do not permit myself to express an opinion, but when time, place, and occasion may give it some favorable effect. A good cause is often injured more by ill-timed efforts of its friends than by the arguments of its enemies. Persuasion, perseverance, and patience are the best advocates on questions depending on the will of others. 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 outlive this evil also. My sentiments have been forty years before the public.  Had I repeated them forty times, they would only have become the more stale and threadbare. Although I shall not live to see them consummated, they will not die with me; but living or dying, they will ever be in my most fervent prayer. This is written for yourself and not for the public, in compliance with your request of two lines of sentiment on the subject.

The sentiment in such letters that the time is not right to act on slavery—public opinion is too divided among some and there is torpor among others—is ingeminated time and again. Ill-timed action even on a moral cause might lead to results which do more to retard than to advance that moral cause, because it will have been undertake without the consent of the general citizenry. One can through intrigue aim to effect a revolution on behalf of a cause without general public support—viz., with the support of some part of the general public—but that effort, in opposition to the principle of government by the will of the majority, will be unjust and will likely fail, because it lacks general succor.

Because a stance on an issue in a Jeffersonian republic must have public support, advances in a Jeffersonian republic are tardigrade. Yet because those advances are tardigrade, they are sure, and at least in Jefferson’s eyes, unlikely to succumb to retrogradations.

“It is my principle…”

Ought Jefferson to Have Done More?

Before ending this chapter, I turn briefly to an intriguing issue: the normative question, Ought Jefferson to have done more? The question is normative because it addresses a heretofore undisclosed tension in the axial principles of Jefferson’s political philosophy. The tension, to be resolved, requires some sort of axiological ordering of those principles.

That tension centers on the notions of generational sovereignty, of timeliness, and of government based on will of the majority, or the consensus gentium principle. The argument goes as follows. A Jeffersonian republic is a government based on the will of the majority of citizens—“it is my principle,” he write to James Madison (20 Dec. 1787), “that the will of the majority should prevail”—suitably informed. The suitably-informed qualification is not some addendum to justify discretionary government—that is, transgressions in governmental decisions at odds with consensus gentium—but merely is a requirement that the citizenry have a certain basal level of education as well as access to new political happenings and new scientific disclosures. Consensus gentium demands political timeliness[30]—that nothing be pushed through Congress unless it has the sanction of the people. Yet—and herein lies the nodus—Jefferson also committed to the principle of generational sovereignty, which entails as its corollary that each generation is unencumbered by the generation prior—the “unencumbrance” principle. The institution of slavery is an encumbrance that has been passed through the generations among the colonists since 1619. Regard for generational sovereignty demands that there be immediate action on slavery so that it is not passed down through the generations, thereby encumbering the generation subsequent with the problems of the generation prior. Yet if the generation in political control is unconvinced that slavery is the political problem or moral evil that it is, then regard for consensus gentium necessitates that the will of the majority be respected and nothing be done to eradicate slavery until such time as the majority of citizens will it to be eradicated. And so, it seems, we have a scenario in which we are theoretically committed to quick action and to not so quick action to end slavery.

There are a couple of outs.

One is to reject the notion that Jefferson was inexorably tied to generational sovereignty or to timeliness. The difficulty here is that there is no evidence that Jefferson was ever anything but tightly committed to both principles.

The remaining and most reasonable option is some sort of axiological ordering of those principles along with a justification of that ordering. The difficulty here is that Jefferson, because he was never philosophically pushed to do so, never subjected his political philosophy to any such axiological ordering. Hence, we can only speculate, in keeping with his moral commitments, on such an ordering. Such speculations will not aim to expose the whole system of political principles to critical analysis.

We cannot but suppose that consensus gentium was for Jefferson a true axial principle and timeliness was a corollary of it. Yet we have also assumed a tight commitment by Jefferson to generational sovereignty and its corollary of unencumbrance. Nonetheless, that need not tie us to a tight commitment to generational sovereignty as an axial principle, but to a tight commitment to it as a secondary principle—viz., a principle to be applied ceterus paribus or when it does not impede consensus gentium. In short, the will of the majority and generational sovereignty are both to be respected, but when the two principles clash, consensus gentium trumps generational sovereignty. Consequently, if the majority of citizens are not anti-slavery, then (and only then) is it legitimate to contravene the unencumbrance principle and pass on the institution, obliquitous as it is, to the next generation.

There is no direct evidence, however, that Jefferson considered generational sovereignty as a secondary principle. Yet several difficulties with the principle listed by James Madison in a letter to Jefferson (4 Feb. 1790), after the latter articulated his commitment to generational sovereignty in a prior letter to Madison (6 Sept. 1789), offer evidence that Jefferson could not have been unaware of difficulties with the principle, and that is some reason to consider generational sovereignty as a secondary principle of Jefferson’s political philosophy.

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[1] William G. Merkel, “A Founding Father on Trial: Jefferson’s Rights Talk and the Problem of Slvery During the Revolutionary Period,” SSRN Electronic Journal, Vol. 63, No. 3, 2011: 631.

[2] Jefferson writes: “So that the position at first laid down is now proven, that the act of 1705, makes servants of the first mulatto, that of 1723, extends it to her children, but 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, to the “nati natorum et qui nascentur ab illis.”

[3] Published in Reports of Cases Determined in the General Court of Virginia from 1730 to 1740, and from 1768 to 1772. See Thomas Jefferson, The Works of Thomas Jefferson, vol. 1, Federal Edition, ed.  Paul Leicester Ford (New York: G.P. Putnam’s Sons, 1904), 471. After the verdict, Howell and his brother again ran away.

[4] Douglas R. Egerton, “Race and Slavery in the Era of Jefferson,” The Cambridge Companion to Thomas Jefferson, ed. Frank Shuffleton (Cambridge University Press, 2009), 74.

[5] David L. Konig, “The Papers of Thomas Jefferson: The Legal Commonplace Book,” The Papers of Thomas Jefferson (Princeton University Press, Second Series, forthcoming). From William G. Merkel, “A Founding Father on Trial,” 631.

[6] Thomas Jefferson, Summary View of the Rights of British America, Thomas Jefferson: Writings, ed. Merrill D. Peterson (New York: Library of America, 1984), 115–16.

[7] For a reconstruction his draft copy and his fair copy, see Carl L. Becker, The Declaration of Independence: A Study in the History of Political Ideas (New York: Vintage Books, [1922] 1970), 135–93.

[8] In his Draft Constitution for Virginia, Jefferson writes: “Whereas George Guelf king of Great Britain and Ireland and Elector of Hanover … hath endeavored to pervert the same into a detestable and insupportable tyranny … by prompting our negroes to rise in arms among us; those very negroes whom he by an inhuman use of his negative he hath refused permission to exclude by law.” Thomas Jefferson, Draft Constitution for Virginia, Thomas Jefferson: Writings, ed. Merrill D. Peterson (New York: Library of America, 1984), 336–37.

[9] Edmund S. Morgan, American Slavery, American Freedom: The Ordeal of Colonial Virginia (New York: Norton, 1975), 154–57 and 327–28.

[10] Carl L. Becker, The Declaration of Independence, 214.

[11] Thomas Jefferson, “Notes on Debates in Congress” (2–4 July 1776). http://press-pubs.uchicago.edu/founders/documents/v1ch15s18.html, accessed 27 June 2013.

[12] David G. Post, “‘Words fitly spoken’: Tomas Jefferson, Slavery, and Sally Hemings,” http://www.temple.edu/lawschool/dpost/slavery.PDF, accessed 17 Dec. 2018.

[13] For more, see Malcolm Sylvers, “Thomas Jefferson and the Constitution,” Storia nordamericana, Vol. 4, No. 1–2, 1987: 121–36.

[14] Randall M. Miller and John David Smith, Dictionary of Afro-American Slavery (Upper Saddle River, NY: Greenwood, 1998), 678.

[15] Thomas Jefferson, A Bill concerning Slaves, 18 June 1779, The Papers of Thomas Jefferson, vol. 2, 1777 – 18 June 1779, ed. Julian P. Boyd (Princeton: Princeton University Press, 1950), 470–73.

[16] Thomas Jefferson, Autobiography, Thomas Jefferson: Writings ed. Merrill D. Peterson (New York: Library of America, 1984), 37–38.

[17] Thomas Jefferson, Autobiography, 33–34.

[18] “Bill to Prevent the Importation of Slaves, &c., 16 June 1777,” The Papers of Thomas Jefferson, vol. 2, 1777 – 18 June 1779, ed. Julian P. Boyd (Princeton: Princeton University Press, 1950), 22–24.

[19] Thomas Jefferson, Notes on the State of Virginia, ed. William Peden (Chapel Hill: University of North Carolina Press, 1954), 162–63.

[20] Thomas Jefferson, Notes on the State of Virginia, 163.

[21] Thomas Jefferson, The Ordinance of 1784, Old South Leaflets, No. 127 (Boston, Mass., Directors of the Old South Work, 1896—1903), 43.

[22] Thomas Jefferson, Sixth Annual Message, Thomas Jefferson: Writings ed. Merrill D. Peterson (New York: Library of America, 1984), 528.

[23] Paul Finkelman, “Jefferson and Slavery: ‘Treason Against the Hopes of the World,” Jeffersonian Legacies, ed. Peter S. Onuf (Charlottesville: University Press of Virginia, 1993), 182.

[24] Gilbert Chinard, Thomas Jefferson: The Apostle of Americanism (Boston: Little, Brown and Company, 1944), 503.

[25] David G. Post, “‘Words fitly spoken’: Thomas Jefferson, Slavery, and Sally Hemings,” http://www.temple.edu/lawschool/dpost/slavery.PDF, accessed 17 Dec. 2018.

[26] E.g., TJ to John Randolph, 25 Aug. 1775; TJ to Gen. George Washington, 28 May 1781; TJ to Thomas Mann Randolph, 1 Jan. 1792; and TJ to Martha Jefferson Randolph, 6 July 1806.

[27] James Thompson, “The Calm before the Storm: Thomas Jefferson’s ‘Infidelity’ and Martha Jefferson’s Rebellion,” The Journal of Thomas Jefferson’s Life and Times, Vol. 2, No. 1, 2018, 31 and 43.

[28] Seneca, De tranquillitate amimi, Seneca: Moral Essays, Vol. II, trans. John W. Basore (Cambridge: Harvard University Press, [1932 2001), IV.8.

[29] TJ to Littleton Waller Tazewell, 5 Jan. 1805.

[30] I distinguish here between political timeliness and moral correctness. Something can be political timely but morally incorrect and something can be morally correct and political untimely. Slavery—being an institution that prohibits certain persons their rights to life, liberty, and pursuit of happiness—is morally wrong but politically untimely.

M. Andrew Holowchak

M. Andrew Holowchak, Ph.D., is a professor of philosophy and history, who taught at institutions such as University of Pittsburgh, University of Michigan, and Rutgers University, Camden. He is editor of Journal of Thomas Jefferson and His Time and author/editor of over 65 books and over 275 published essays on topics such as ethics, ancient philosophy, science, psychoanalysis, and critical thinking. His current research is on Thomas Jefferson—he is acknowledged by many scholars to be the world’s foremost authority—and has published over 200 essays and 27 books on Jefferson. He also has numerous videos and a weekly series with Donna Vitak, titled “One Work, Five Questions,” on Jefferson on YouTube. He can be reached at [email protected]. 

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