The Founders and Slavery
Paul Finkelman
paul-finkelman at UTULSA.EDU
Fri Apr 21 17:17:02 PDT 2000
it has been too long ago that I looked at the bill to know what is in
it, to concede that it was anything of substance; but I will try to look
at it over the weekend.
Leslie Goldstein wrote:
> should I take thsi to mean that Paul concedes that Madison DID try to
> get Virginia to abolish slavery gradually? I still have trouble
> seeing how this bill (1785) would actually function as an abolition
> bill apart from the expectation, soon to be destroyed by the cotton
> gin, that Virginians woudl want to get rid of their slaves pretty
> soon and would privately free them. But it still owudl be
> interesting to know if both TJ and Madison BELIEVED they were acting
> to bring about gradual abolition.
> Leslie
>
> Paul Finkelman wrote:
>
>> Clyde is exactly right. Indeed, the whole way Jefferson approaches
>> slavery has a fantasy element to it. Slavery was a huge issue; it
>> was a looming presence in the society. It required hard work,
>> careful planning, and deep political commitment. TJ thoughout his
>> career avoids this sort of effort on slavery. In one of his more
>> recent posts Prof. West points out that Madison introduces a grad.
>> emancipation proposal by TJ in 1785, when TJ is in Europe. Whether
>> the proposal would have done the job is one question, but the fact
>> the TJ does not propose it himself, but pawns it off on Madison to
>> propose illustrates TJ's utter inability to face up to the problem
>> -- if he is a great founder, we should have expected him to face up
>> to the problem. The contrast with Lincoln is obvious. When given
>> the opportunity to act, Lincoln did, and forcefully. When in the
>> position to act, as when he was in the Va. legislature, TJ did not.
>>
>> Paul Finkelman
>> Chapman Distinguished Professor
>> University of Tulsa College of Law
>> 3120 East Fourth Place
>> Tulsa, OK 74104
>>
>> 918-631-3706
>> Fax 918-631-2194
>>
>> E-mail: paul-finkelman at utulsa.edu
>>
>>
>>
>> "Spillenger, Clyde" wrote:
>>
>> >
>> >
>> > I would add one brief note to what Paul has said, one that I'm sure
>> > he is very familiar with. As I recall -- this is all from memory
>> > as the material isn't in front of me -- the antislavery proviso in
>> > the earlier version of the 1784 ordinance was deleted through a
>> > series of motions which, had there been one more antislavery
>> > delegate present (several were absent), would have come out the
>> > other way.
>> >
>> > Jefferson said, years later, something to the effect of "But for
>> > one vote, the spread of this insidious institution would have been
>> > prevented for all time." (This is not a verbatim or accurate
>> > quotation, just a paraphrase.) This, as Don Fehrenbacher and Paul
>> > and others have made clear, was the merest fantasy, and strikes me
>> > as a rather escapist delusion on Jefferson's part. I don't want to
>> > weigh in on the thumbs-up/thumbs-down referendum on Jefferson, but
>> > I do think that this recollection of his illustrates the strange
>> > self-deception he could exhibit on the slavery question. It is
>> > consistent with what does seem to be the discrepancy between his
>> > abstract words and his concrete deeds with respect to this issue.
>> >
>> > Clyde Spillenger
>> > UCLA School of Law
>> > (310) 825-7470
>> > spilleng at mail.law.ucla.edu
>> > Odd word errors may be caused by speech misrecognition or advancing
>> > senility.
>> >
>> > -----Original Message-----
>> > From: Paul Finkelman [SMTP:Paul-Finkelman at UTULSA.EDU]
>> > Sent: Thursday, April 20, 2000 12:18 PM
>> > To: CONLAWPROF at listserv.ucla.edu
>> > Subject: Re: The Founders and Slavery
>> >
>> > I had attempted to end the discussion since I have no answers
>> > to
>> > Professor West's red baiting and name calling, and will not
>> > participate
>> > in such a discussion. However, Michael McConnell raises
>> > interesting
>> > questions. I will turn to the two he raises here.
>> >
>> > In June 1784 Jefferson entered Congress, then operating under
>> > the
>> > Articles of Confederation. Here he took a shot at slavery.
>> > Even if this
>> > salvo had landed on the target--and it did not--it would have
>> > been at
>> > best a glancing blow. Jefferson's "Plan of Government for the
>> > Western
>> > Territory" would have banned slavery after 1800. Congress
>> > rejected the
>> > antislavery proviso. At this time thousands of slaves were
>> > already in
>> > the West, and more were arriving daily in what later became
>> > Kentucky and
>> > Tennessee. Given the large slave population already in the
>> > territories
>> > south of the Ohio, as well as a fair number in what became
>> > Indiana and
>> > Illinois, it seems unlikely that Jefferson's proposal,
>> > delaying
>> > emancipation for sixteen years, would have been successful.
>> > As William
>> > M. Wiecek notes, the phrasing of Jefferson's proposed
>> > ordinance "was, in
>> > effect, a permission to the western territories and states to
>> > establish
>> > slavery and retain it to the year 1800." Delaying abolition
>> > in the West
>> > until 1800 would have given slaveowners sixteen years to
>> > populate the
>> > region and to lobby for a change in the law.
>> >
>> > Calling for a ban on slavery in the West was nevertheless
>> > an attack on
>> > institution, if for no other reason than it would have put the
>> > government
>> > on record as opposing its spread. In this sense, to answer
>> > Michael
>> > directly, TJ was more antislavery than some southerners, but
>> > not nearly
>> > as antislavery as many northerners. Nor was he has
>> > antislavery as many
>> > other Virginians. TJ had just come from his stint in the Va.
>> > legislature, where he had proposed a slave code so harsh that
>> > the
>> > legislature rejected it, and a set of rules for free blacks
>> > and
>> > mixed-race children. In this stint in the state legialture TJ
>> > has sat on
>> > the gradual emancipation proposal that others had offered to
>> > him, and not
>> > introduced it. Furthermore, he refused to even consider a
>> > bill to allow
>> > private manumissions of slaves in Va. This is significant,
>> > because in
>> > 1782, when TJ was temporarily not in any political office, the
>> > Va.
>> > legislature had passed such a law. Thus, if TJ had been
>> > interested in
>> > pushing an end to slavery it seems he would have been able to
>> > read the
>> > public mood, propose a law allowing private manumission (with
>> > the
>> > ex-slave remaining in the state). My point is that TJ does
>> > not want free
>> > blacks in his state, he fears and or hates them, which
>> > dovetails with his
>> > outrageously racist statements about blacks written in the
>> > Notes on the
>> > State of Va.
>> >
>> > Now, back to the proposed slavery ban in Congress. Had
>> > Jefferson's ban
>> > passed, and had it worked, which seems highly doubtful -- it
>> > was an
>> > extremely impractical proposal -- it would have been at best
>> > a chipping
>> > away at slavery at the margins. It was a step in the right
>> > direction, to
>> > be sure, and whatever his motivations--to reserve the West
>> > for free
>> > whites, to circumscribe the domestic slave trade, to diminish
>> > the demand
>> > for slaves in the new nation in order to undermine the African
>> > trade, or
>> > to strike a blow against an unjust institution.
>> >
>> > Significantly, however, it was also step, however, that
>> > Jefferson would
>> > later retract. During the debates over the Missouri
>> > Compromise Jefferson
>> > argued against prohibiting slavery in the West: a
>> > "geographical line,
>> > coinciding with a marked principle, moral and political" would
>> > stir the
>> > "angry passions of men." If Jefferson was inconsistent on
>> > slavery
>> > restriction, he was consistent in promoting what he considered
>> > best for
>> > white southerners.
>> >
>> > So, if we are to score points here, we can give TJ a partial
>> > score for
>> > proposing that as of 1800 -- 16 years in the future -- slavery
>> > would be
>> > banned in a place where slaves were entering rapidly with
>> > their masters.
>> > What would have happened to those slaves in KY, Tenn, and what
>> > becomes
>> > Miss and Ala. in 1800? Jefferson offers no clue, but since
>> > had refused
>> > to propose gradual emancipation in VA it is hard to imagine
>> > what he
>> > expected for the West. So, what would I "concede" about TJ --
>> > that is he
>> > more worried or concerned about slavery than the average South
>> > Carolina
>> > rice Planter? Sure? That he is more concerned than the
>> > average
>> > Virginian? That is not at all clear? That he is consistent
>> > with members
>> > of the "Republic of Letters" across the world at the time?
>> > Hardly?
>> > However one looks at it, the proposal is not very well thought
>> > out, it
>> > does not take affect for years, when it would be too late, and
>> > that it
>> > does not indicate how it might be implemented.
>> >
>> > As for the draft "emancipation law."
>> >
>> > First, the dispute here is twofold. West believes TJ drafted
>> > the
>> > proposed grad eman. act, but I do not and I think internal
>> > evidence from
>> > TJ supports that others brought it to him. But, if I am wrong
>> > on this
>> > point, all this shows is that TJ drafted a bill which he flat
>> > out
>> > refused to offer it to the legislaure. What can we make of
>> > this? Some
>> > opponent of slavery. He won't introduce his own bill even
>> > though he is
>> > the most powerful player in the legislature. Here is the
>> > history of
>> > it.
>> >
>> > As chair of the committee to revise Virginia's laws, Jefferson
>> > was in the
>> > ideal position to work towards gradual emancipation. But he
>> > failed to
>> > take the lead. The record suggests, both from outside sources
>> > and from
>> > TJ's own account that other legislators darfted the bill and
>> > approached
>> > Jefferson with draft legislation with a gradual emancipation
>> > act for Va.
>> > As chair of the committee he declined to add it to the
>> > proposed
>> > revisions. He later explained in the Note on VA it was
>> > "better that this
>> > should be kept back" and only offered as an amendment,
>> > although it is
>> > unclear why this would have been a better strategy. It seems
>> > more likely
>> > that Jefferson simply did not want the issue brought to the
>> > floor for any
>> > debate. Confronted with a chance to work towards public
>> > emancipation or
>> > private manumission, Jefferson backpedalled.
>> >
>> > In his Notes on the State of Virginia Jefferson wrote that a
>> > bill "to
>> > emancipate all slaves born after passing the act" was not
>> > "reported by
>> > the revisors," but that "an amendment containing it was
>> > prepared, to be
>> > offered the legislature whenever the bill should be taken
>> > up." Under
>> > this proposed amendment the children of slaves would be
>> > educated and then
>> > "colonized" out of the state. If Jefferson or anyone else
>> > ever prepared
>> > such an amendment, no copy of it has survived. The first
>> > appearance of
>> > the text of this amendment was in the Notes.
>> >
>> > Jefferson wrote Notes on Virginia in 1781, revised it in
>> > 1783-84, and
>> > made a final revision in France, "before turning his
>> > manuscript over" to
>> > his French publisher "late in 1784 or early in 1785." By the
>> > time
>> > Jefferson left for France it was clear that no one would
>> > introduce the
>> > emancipation/colonization scheme. In effect, what Jefferson
>> > wrote in the
>> > Notes was completely misleading. Nevertheless, Jefferson did
>> > not revise
>> > his account of the emancipation amendment. Jefferson repeated
>> > this
>> > account in his authorized edition published by John Stockdale
>> > in London
>> > in 1787. There is no indication why Jefferson persisted in
>> > telling his
>> > European readers that this law would be introduced, when he
>> > knew it had
>> > not been, and would not be, proposed.
>> >
>> > Curiously, Jefferson never altered the Notes to reflect what
>> > Virginia did
>> > do at this time, which was to pass legislation allowing
>> > masters to
>> > manumit their slaves. Virginia passed this law in 1782, well
>> > before
>> > Jefferson left for France. Jefferson's silence may reflect
>> > the fact that
>> > the manumission law was not part of Jefferson's program, but
>> > instead
>> > resulted from the pleas of citizens seeking to free their own
>> > slaves.
>> > Jefferson may have ignored the law because he did not like
>> > it--this law
>> > allowed manumitted blacks to remain in Virginia, whereas
>> > Jefferson wanted
>> > former slaves to be forced to leave the state. Finally,
>> > perhaps, in
>> > exaggerating the prospects for a general emancipation,
>> > Jefferson may have
>> > been telling his European friends what he thought they wanted
>> > to hear.
>> > His failure to revise the Notes created the false impression
>> > that
>> > Virginia was prepared to act boldly against the institution.
>> > Jefferson later claimed that the revisors of Virginia's laws
>> > never
>> > proposed the amendment because "the public mind would not yet
>> > bear the
>> > proposition." This account is diametrically opposed to his
>> > assertion in
>> > 1774 in A Summary View of the Rights of British America that
>> > "The
>> > abolition of domestic slavery is the great object of desire in
>> > those
>> > colonies where it was unhappily introduced in their infant
>> > state." Yet
>> > it is clear that Jefferson was not seriously interested in
>> > either
>> > allowing for private manumission or ending slavery, whatever
>> > the state of
>> > the "public mind." He was far more concerned with ridding the
>> > state of
>> > free blacks and creating a criminal code to keep slaves in
>> > line.
>> > Jefferson introduced laws, which failed to pass, to make this
>> > happen.
>> >
>> > While Alexander Stephens may have disliked TJ, it is worth
>> > noting that
>> > the racist scientists of the late antebellum period, who
>> > defended slavery
>> > on racial grounds, considered TJ their "founder."
>> >
>> > --
>> > Paul Finkelman
>> > Chapman Distinguished Professor
>> > University of Tulsa College of Law
>> > 3120 East Fourth Place
>> > Tulsa, OK 74104
>> >
>> > 918-631-3706
>> > Fax 918-631-2194
>> >
>> > E-mail: paul-finkelman at utulsa.edu
>> >
>> >
>> >
>> >
>> >
>> > Michael McConnell wrote:
>> >
>> > > I hope the West-Finkelman discussion does not degenerate
>> > into
>> > > personal accusation, since it has been very illuminating (at
>> > least to
>> > > me). I do not understand Paul to be "denouncing" the
>> > founding "as
>> > > unjust and anti-black," or even to be siding with radical
>> > > abolitionists, like Garrison, over more prudent and moderate
>> >
>> > > opponents of slavery. Rather, I understand him to be arguing
>> > that
>> > > Jefferson (and maybe Madison, too, though less has been said
>> > about
>> > > him) opposed even the moderate and prudent measures that
>> > might have
>> > > advanced the cause at the time.
>> > >
>> > > In this connection, I am struck by the fact that no less a
>> > witness
>> > > than Alexander Stephens shares Tom's view of the founders,
>> > > criticizing them for their hostility toward slavery.
>> > Moreover, that
>> > > Jefferson supported gradual, far-off emancipation in the
>> > Western
>> > > Territories (by which I am assuming that Tom and Paul mean
>> > the
>> > > Southwest Territories, since slavery was barred from the
>> > Northwest
>> > > Territorities by unanimous vote) seems to count for
>> > something. On
>> > > that issue, would Paul concede that Jefferson was more
>> > anti-slavery
>> > > than the political consensus of the day?
>> > >
>> > > On the other hand, would Tom concede that Jefferson's advice
>> > to
>> > > slaveowners, such as Edward Coles, not to manumit their
>> > slaves, was a
>> > > rather serious matter? Note that here, Jefferson cannot be
>> > excused on
>> > > the ground that he is allowing prudence or self-interest to
>> > overcome
>> > > principle; he seems to be arguing against principle.
>> > >
>> > > It also seems significant to me that the party of Jefferson,
>> > even in
>> > > the North, seems to have been more pro-slavery than the
>> > party of
>> > > Washington, Adams, and Hamilton. Note that here, the
>> > Jeffersonians
>> > > cannot be excused on the ground that politics is the art of
>> > the
>> > > possible, since they were ranged on the wrong side of the
>> > possible.
>> > >
>> > > Finally, like Leslie Goldstein, I am especially interested
>> > in whether
>> > > Jefferson in fact supported gradual emancipation in
>> > Virginia. Paul
>> > > and Tom seem to disagree about this, but I am unclear about
>> > the
>> > > factual basis for their disagreement. Apparently (I haven't
>> > checked),
>> > > the Jefferson papers contain a proposal for gradual
>> > emancipation. Tom
>> > > seems to infer from this that Jefferson wrote, and therefore
>> >
>> > > supported, the bill. Is that a correct inference? (Some
>> > items in the
>> > > Jefferson papers were written by other people.) Paul states
>> > that
>> > > Jefferson, as chairman of the relevant committee, prevented
>> > the bill
>> > > from going to the floor. How do we know that?
>> > >
>> > > -- Michael McConnell (U of Utah)
>> >
>> --
>
--
--
Paul Finkelman
Chapman Distinguished Professor of Law
University of Tulsa College of Law
3120 East Fourth Place
Tulsa, OK 74104-2499
918-631-3706
Fax 918-631-2194
paul-finkelman at utulsa.edu
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