Jefferson and the Wolf: The Sage of Monticello Confronts the Law of Slavery Jefferson and the Wolf: The Sage of Monticello Confronts the Law of Slavery Author(s): Philip J. Schwarz Source: OAH Magazine of History, Vol. 8, No. 4, Life in Revolutionary America (Summer, 1994), pp. 18-22 Published by: Organization of American Historians Stable URL: http://www.jstor.org/stable/25162981 Accessed: 16/07/2010 13:00 Your use of the JSTOR archive indicates your acceptance of JSTOR's Terms and Conditions of Use, available at http://www.jstor.org/page/info/about/policies/terms.jsp. JSTOR's Terms and Conditions of Use provides, in part, that unless you have obtained prior permission, you may not download an entire issue of a journal or multiple copies of articles, and you may use content in the JSTOR archive only for your personal, non-commercial use. Please contact the publisher regarding any further use of this work. 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Organization of American Historians is collaborating with JSTOR to digitize, preserve and extend access to OAH Magazine of History. http://www.jstor.org http://www.jstor.org/stable/25162981?origin=JSTOR-pdf http://www.jstor.org/page/info/about/policies/terms.jsp http://www.jstor.org/action/showPublisher?publisherCode=oah Jefferson and the Wolf: The Sage of Monticello Confronts the Law of Slavery Philip J. Schwarz The American revolutionaries so re vered the rule of law that they relied on the law to help rule their slaves. An apostle of republicanism in the United States, Thomas Jefferson is no exception to this generalization. He faced the same dilemma as did other slave-holding Ameri can revolutionaries. How could the de fenders of liberty simultaneously deny liberty to the African Ameri- . cans whom they held to slavery? How could they be slave holders without denying liberty itself? Some revolutionaries answered these ques tions by freeing their slaves. Jefferson chose not to (1). Thomas Jefferson's legal transactions con cerning his bondspeople reveal that part of his answer to the problem of slavery in a revolutionary, republi can society was to make certain of the legality of his behavior as a - master. He believed that confor mity to the law of slavery constituted a civic duty, protected him from some of the dangers inherent in slavery, preserved his liberty to hold humans in bondage, and even secondarily gave some personal se curity to the enslaved. Jefferson's legal oversight of African Americans at Monticello and elsewhere is revealed in his legal transactions concern ing his human property, which spanned more than half a century. These transac tions created a unique, rich, and nearly unrivalled record of the relationship be tween written laws and human behavior in a representative, developed slave society (2). This essay focuses on the manner in which Jefferson translated statutory law into practice or made practice into cus tomary, unwritten law, that is, his planta tion rules. Thanks to Jefferson's careful How could the defenders of liberty simultaneously deny liberty to the African Americans whom they held to slavery? retention of his papers, we can reconstruct a better picture of his legal relationship to the bondspeople under his dominion than in almost any other case (3). For example, among Jefferson's pa pers are agreements, wills, and other docu ments by which slaves were transferred from one generation of the Jefferson fam ily to another. To be sure, these transfers normally benefitted Jefferson, but these and Jefferson's other legal transactions concerning slaves show how the law of slavery also placed him and other slave owners within the confines of a prescribed system that was supposed to command their obedience just as it was meant to help them command their slaves. The day-to day transactions of slave holders, such as those by which Jefferson family members inherited human property, are notable for their routine, prosaic quality. One , can find similar transactions con cerning bondspeople in the records of slave societies throughout the Western Hemisphere. These ar rangements provided some predict ability and security, two essential aspects of law. But the system of property laws, other civil laws, and criminal laws reflected in these docu ments also constrained slave own ers?whether they held two or two hundred people. Control was the sine qua non of slave ownership. The law of slavery helped people like Jefferson control the wills of their human chattel to some ex tent. Uncontrolled, the wills of chattel could become the wills of human beings, threatening slavery and endangering prop erty or people. However, neither statutory nor customary laws concerning slave gov ernance were as effective in controlling bondspeople as were straightforward prop erty laws in safeguarding ownership of human property. Treating people as prop erty to be bought and sold was one thing. 18 OAH Magazine of History Summer 1994 It was quite another thing to act as if those human commodities lacked wills. None did, so enslaved people always had the potential of contradicting the neat catego ries by which slave holders attempted to rule, even when those categories were incorporated into laws. Consider the con stant worry of slave holders about fugi tives, as reflected in Jefferson's often-quoted Virginia Gazette advertise ment of 1769 for a runaway slave (4). Old Dominion law gave owners of "slaves who stole themselves" some help in find ing them, and it assured that once they did, there were legal means of establishing ownership. It is questionable, however, how much good the law did Jefferson: while almost every man who ran away from him was initially captured and re turned, nearly every one of these run aways ultimately proved uncontrollable and often ran away again, sometimes per manently. Still, noblesse oblige was within the reach of the slave master. The law of slavery allowed for acts that could reas sure slave holders of their legitimacy. The rationale for the customary laws of slavery by which Jefferson was supposed to con trol his slaves was that bondspeople must be extensions of the will of their owner. This paradoxically allowed Jefferson to delegate to African Americans powers ordinarily reserved to whites. He could even base important decisions about his slaves on their preferences or behavior; he also sometimes paid them for unusual tasks. But Jefferson was unquestionably capable of angrily asserting his rights when slaves claimed at least by their actions that they had customary rights that clashed with his. Private and public accusations of criminal behavior against Jefferson's slaves involved both customary law and statutes. "Misbehavior"?violations of Jefferson's mostly spoken plantation or customary law?occurred fairly regularly, bringing into play his conception of him self as lawgiver and law enforcer. Jefferson could order whippings or even far more severe punishment when he thought it necessary. He also had fairly clear ideas concerning the differentiation between his enforcement of plantation law and gov ernmental enforcement of statutes. When a Bedford County slave court gave three of his Poplar Forest slaves a light sentence after convicting them of attacking their overseer, Jefferson promptly sold the three. It was part of the customary law of his plantations for Jefferson to provide at least minimal protection of his slaves against various dangers, such as neglectful or bru tal hirers, as a corollary to his shielding of himself and his agents from certain slaves. Jefferson paradoxically assumed, however, that the ultimate method of protecting his bondspeople was to keep them in bond age. Hence there are few manumissions recorded in Jefferson's papers, most of them in his will. But when Jefferson chose to free any of his human property, he had to contend with statutes that both empow ered and limited him in more complex ways than did any laws concerning run Mount Vernon Ladies' Association Archaeology Department Artifacts recovered from the excavation of a slave quarter cellar at Mount Vernon. OAH Magazine of History Summer 1994 19 aways or alleged criminals. Jefferson's attitude toward both bondspeople and the laws of Virginia influenced his decision to free several members of the Hemings fam ily. His testamentary petition for an ex ception to the Old Dominion law that required most emancipated people to leave the state reflects his assumptions that the state lawgivers would grant his wish and that only these enslaved men would be capable of living in freedom. Still another way Jefferson encoun tered the strictures of the slave code un derlines the reciprocal nature of his link to that body of laws. That was when other people entrusted him with the disposition or protection of their slave property as a trustee, agent, legal advisor, or lawyer. In these and other instances, Thomas Jefferson accepted the laws of Virginia, Thomas Jefferson Memorial Foundation, Inc. Overhead view of the largest of the slave dwellings on Mulberry Row at Monticello. the ethics of his one-time profession of lawyer, and the canons of his class. Living in a world of shared obligations, preserv ing their reputation among slave-holding peers, and choosing to keep their slaves, Jefferson and other slave owners had no choice but to acknowledge the force of slave law. Yet is it not fair to expect more legal creativity from Thomas Jefferson than from other slave owners of his time? Relatively vigorous in his public pronouncements on abolition in the 1770s and 1780s, he main tained silence thereafter. His greatest creativity concerning his bondspeople was limited to the de facto manumissions of Beverley and Harriet, children of Sally Hemings, and his unusually clear articula tion of his slaves' peculium, or right to the fruits of some of their labor. The problem was that the law of slavery virtually stifled any more creativity than this. The root of Jefferson's subjection to the law of slavery was his decision to remain a slave holder. As long as he held human property, Jefferson never could escape from slave law. While in public office, he was called upon to make legal decisions about slaves and slavery. Dur ing the early years of his public service he made some antislavery pronouncements (5). His governmental actions, which carried greater practical weight than did his pronouncements, were rarely antisla very. Every time he took the side of Progress and Enlightenment, he encoun tered self-interest and the hard realities of economic and political life in the new nation (6). Sought after regularly for his opinion concerning slavery during his years of retirement, Jefferson insisted upon pub lic silence. Under the heavy pressure of events such as the Missouri controversy, he privately pronounced with insight on the nation's problem of slavery without being able to offer a solution. His tortured formulation of the dilemma he thought lawmakers and enforcers like him faced? to his mind the impossible choice between giving up the benefits of the law of slavery and eliminating that law's self-evidently unjust consequences?reflects his pain and ambivalence: "But as it is, we have the wolf by the ear, and we can neither hold him, nor safely let him go. Justice is in one scale and self-preservation in the other" (7). This is not to say that Jefferson was a mere product of his times who failed to solve a problem that very few people solved. In other respects, Jefferson helped to "produce" his times. Yet he refused to go as far as his neighbor Edward Coles, who emancipated his slaves; Jefferson also failed to emancipate more than a handful of slaves in his will?in contrast to such contemporaries as George Washington and John Randolph of Roanoke. "Was Tho mas Jefferson an Authentic Enemy of Sla very?" David B. Davis asked in 1970 (8). Was Thomas Jefferson willing and able to act against his own interest in slave prop erty? The latter is a question that hits close to home because it touches on how Jefferson lived, on what the laws of his slave society allowed, and on his concep tion of himself as an enlightened ruler. Slave owners did enjoy a certain amount of independence from govern mental oversight of their "management" of slaves. In return for the protection provided by the laws and judiciary of any slave society, however, slave holders had to pay the price of abiding by the regula tions that laws and the judiciary applied to owners. Jefferson and other holders were unwilling to take the risk of rejecting governmental regulation of them and their human chattel because of the very nature of their legal relationship with bondspeople. They regarded slaves as 20 OAH Magazine of History Summer 1994 _Thomas Jefferson Memorial Foundation, Inc. Archaeological excavations on Mulberry Row unearthed an assortment of objects used by the slaves after work and on Sundays or holidays. Shown here are a fragment of a writing slate (with inscribed words), pencils, a penknife, dominoes, marbles, a jews harp, and part of a fiddle bow. their property. Had they rejected the governmental regulation of that "species of property," they would have jeopardized much of the law of property and the soci ety and economy in which they lived. The only way out of these difficulties was to free all of one's slaves. This Thomas Jefferson was unwilling to do. Jefferson's legal transactions con cerning human chattel reveal that he had the wolf by just one ear, a particularly precarious circumstance. It was as if slavery were the wolf, and the law of slavery could not always protect slave owners from trouble that could ultimately be blamed on that wolf. "In a word," declared an anonymous letter writer in 1800, "if we will keep a ferocious monster in our country, we must keep him in chains .... Slavery is a monster?the most horrible of all monsters" (9). The law of slavery only supported, and did not guarantee, the security of slave owners. That was to be expected: no law has ever been able to guarantee security. But the wolf (slavery) was especially dangerous. Jefferson also could not es cape the contradiction between his role of master and the ideals of the American Revolution. Subjecting himself to the rule of law?required behavior for any repub lican leader?did not work. "The slave holder can never be a Democrat," declared a "gentleman" in a newspaper letter in 1800 (10). What then was a leader of a republican revolution and of the Demo cratic-Republican Party to do if he also chose to keep his slaves? The best he could do was to act like an enlightened monarch whom laws limited and empow ered, and who reserved the right to make some laws of his own. It is this "bargain" between the osten sibly independent slave owner and the government that helps considerably to explain the sharp conflict between Jefferson's pronouncements about slavery and his actual ownership of bondspeople. Jefferson could not have it both ways: as a slave owner, he either had to obey the laws of slavery while he kept African Ameri cans in bondage or else free all slaves and not have to abide by the slave code. Any one who acted like an enlightened mon arch could not be a republican leader of human beings when they were in bondage. No matter how beneficent a master he may have been, he still was an owner of per sonal chattel. That committed him to support the law of slavery and to preserve the Peculiar Institution. Unique and ex traordinary in some ways, and often the beneficiary of the laws, he was just as Thomas Jefferson Memorial Foundation, Inc. _____________________________________F3_i?f^? ;''t-_i___^_l__^_____-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_P^"' ^^^^i_________________________H ________________Ri' IP __________________ ' ^_____1______H ________________________________________%? : ' '^mM^^^^^^^^^^^m ,*'^^rr^l*,l^^^^^^^M Some objects found during excavations of Mulberry Row show that African traditions were very much alive within the Monticello slave community. Pictured here are a cowrie shell, a carved horn ring, and two pierced eighteenth-century Spanish coins. OAH Magazine of History Summer 1994 21 subject to the law of slavery as any other slave owner. The approximately 97 per cent of his enslaved laborers who remained in bondage as the property of at least twenty-one new owners after Jefferson's death were living proof that the law of slavery was written on their skins immea surably more than on Jefferson's, that they lived under the govern ment of men as well as of laws; yet his unwillingness or inability to free those people is partly attribut able to the way in which the law of slavery was also written on Jefferson's skin (11). Endnotes 1. For conflicting viewpoints con cerning Jefferson's choice, see Paul Finkelman, "Jefferson and Slavery: Treason Against the Hopes of the World,'" in Jeffersonian Legacies, ed. Pe ter S. Onuf (Charlottesville: The University Press of Vir ginia, 1993), 181-221, and Or lando Patterson, "The Unholy Trinity: Freedom, Slavery, and the American Constitution," Social Research 54 (Autumn 1987): 543-77. 2. For a discussion of the law of slavery, see Philip J. Schwarz, Twice Condemned: Slaves and the Criminal Laws of Virginia, 1705-1865 (Baton Rouge: Louisiana State University Press, 1988), 6-33, and the many articles in Paul Finkelman, ed., Slavery, Race and the American Legal Sys tem, 1700-1872 (New York: Garland, 1988). 3. The major collections of Jefferson manuscripts are at The Huntington Library, the Library of Congress, the Massachusetts His torical Society, and the Alderman Library, University of Virginia. All these collections are available on mi crofilm. The most recently published edition of Jefferson's writings covers only through the beginning of the 1790s. Julian P. Boyd etal., eds., The Papers of Thomas Jefferson (Princeton, N.J.: Princeton Univer sity Press, 1950- ). The best recent survey of African-American Monticello is Lucia C. Stanton, "Those Who Labor for My Happi Tracy W. McGregor Library, University of Virginia ^^^TjMjr-'P wAX-'XX ' ! Born a slave at Monticello, Isaac Jefferson worked there for many years as a blacksmith, tinsmith, and nailmaker. At the time of this photograph, he was a free man practicing his ironworking trade in Petersburg, Virginia. ness': Thomas Jefferson and His Slaves," in Jeffersonian Legacies, ed. Peter S. Onuf, 147-80. 4. Virginia Gazette (Purdie & Dixon), 14 September 1769, reprinted in Boyd et ah, eds., The Papers of Thomas Jefferson, I, 33, or transcribed in Lathan Windley, ed., Runaway Slave Advertisements: a Documentary His tory from the 1730s to 1790 (Westport, Conn.: Greenwood Press, 1983), v. 1. Virginia and North Carolina, 73. 5. The most famous pronouncements are in his Notes on the State of Virginia (New York: Harper & Row, 1964), 155-156. 6. See, e.g., Douglas R. Egerton, Gabriel's Rebellion: The Virginia Slave Conspiracies of 1800and 1802 (Chapel Hill, N.C.: The University of North Carolina Press, 1993). 7. Jefferson to John Holmes, April 22,1820, Jefferson Papers, Library of Congress, microfilm reel 51?a polygraph copy of the original. All published transcriptions of this letter erroneously misquote "ear" as "ears," a crucial difference for the person holding the wolf. 8. Oxford, 1970. Much of this lecture is incorporated into Davis's The Problem of Slavery in the Age of Revolution, 1770-1823 (Ithaca, N.Y.: Cornell University Press, 1975). 9. "Extract of a letter from a gentleman ... to the Editor," Fredericksburg Virginia Herald, September 23, 1800. 10. "Extract of a letter from a gentleman ... to the Editor," Fredericksburg Virginia Herald, September 23, 1800. 11. The number of owners who made purchases at the two sales of Jefferson's bondspeople in 1827 and 1829 is an estimate based on sales slips and on "An acct. of sales of negroes of the Est. of Thomas Jefferson 1st Jan. 1829," photocopies of which are in the Research Department, Thomas Jefferson Memorial Foundation (Monticello), Charlottesville, Virginia. Philip J. Schwarz is Professor of History at Virginia Commonwealth University and author of Twice Condemned: Slaves and the Criminal Laws of Virginia, 1705-1865 (1988). 22 OAH Magazine of History Summer 1994 Article Contents p. 18 p. 19 p. 20 p. 21 p. 22 Issue Table of Contents OAH Magazine of History, Vol. 8, No. 4, Life in Revolutionary America (Summer, 1994) Front Matter From the Editor: Life in Revolutionary America [pp. 3-4] Revolutionary America: The Historiography [pp. 5-8] Political Leadership: Six Lessons from the Founding Period [pp. 9-11] Past Presence: Interpreting Lifestyles through Material Culture [pp. 12-17] Jefferson and the Wolf: The Sage of Monticello Confronts the Law of Slavery [pp. 18-22] Women and the American Revolution [pp. 23-26] Material Life in Revolutionary America: Artifacts and Issues in the Classroom [pp. 27-31] Lesson Plans William Buckland: Indentured Servant at Gunston Hall [pp. 32-35] Thomas Jefferson and Architecture [pp. 36-44] Federalists and Anti-Federalists: Is a Bill of Rights Essential to a Free Society? [pp. 45-48] Ladies' Letters: Rx for Eighteenth-Century Health Care [pp. 49-53] On Teaching Writing Essays That Make Historical Arguments [pp. 54-57] Reviews Review: untitled [pp. 58-59] Review: untitled [pp. 59-60] History Headlines [p. 64-64] Back Matter