Slave Nation (14 page)

The Second Continental Congress meeting in Philadelphia in 1775 began to conduct war against the British in Boston. British governance of the colonies was in shambles. In the fall of 1775, Lord Dunmore, unable to cow the Virginians who had established their own militia, promised to free all slaves who would join him in his struggle to maintain control of the colony:

I do require every person capable of bearing arms, to resort to His Majesty’s standard, or be looked upon as traitors to His Majesty’s crown and government, and thereby become liable to the penalty the law inflicts upon such offenses; such as forfeiture of life, confiscation of lands....And I do hereby further declare all indented servants, Negroes, or others (appertaining to rebels) free that are able and willing to bear arms, they joining His Majesty’s troops as soon as may be, for the more speedily reducing this colony to a proper sense of their duty to His Majesty’s crown and dignity.
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Historian John C. Miller wrote, “To Virginians this was nothing less than a call for race war.”
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Dunmore’s approach was supported by Samuel Johnson in Britain, who wrote that it would be cheaper and easier to subdue the colonies by encouraging slave uprisings than to send a large military force.
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Many slaves took up the offer of freedom and joined Dunmore’s forces. Landon Carter, probably the richest slave holder in Virginia, was frustrated by the rebellion of eight of his slaves, but bragged that in their leaving, they had not touched anything belonging to his person.
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Dunmore’s action confirmed colonial fears that the British would use the colonies for their own purposes, even to the extent of prompting slaves to murder their masters.

Virginia responded by offering amnesty to those slaves who returned, and death to those who fought against it:

Whereas, by an act of the general assembly now in force in this colony, it is enacted that all Negro or other slaves, conspiring to rebel or make insurrection, shall suffer death and be excluded all benefit of clergy. We think it proper to declare that all slaves who have been, or shall be seduced by his lordship’s proclamation, or other arts, to desert their masters’ service, and take up arms against the inhabitants of this colony, shall be liable to such punishment as shall hereafter be directed by the general convention. And to that end all such who have taken this unlawful and wicked step may return in safety to their duty and escape the punishment due to their crimes, we hereby promise pardon to them, they surrendering themselves to Col. William Woodford, or any other commander of our troops, and not appearing in arms after the publication hereof. And we do farther earnestly recommend it to all humane and benevolent persons in this colony to explain and make known this our offer of mercy to those unfortunate people.
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In late 1775, the Continental Congress urged the colonies to adopt their own constitutions to fill a vacuum left by the absence of government.
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Starting in the autumn of 1774, Massachusetts became ungovernable; the courts could not operate, juries would not serve, and the milita was training. Other states began arming themselves and ignoring the existing governments.
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On May 15, 1776, a Virginian convention, called to shape a new government for the state, instructed its delegates to the Second Continental Congress in Philadelphia to propose that Congress declare independence from Great Britain.
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On June 7, Richard Henry Lee made the motion. A vote was delayed while the delegates from several colonies sought permission to approve it. In the interim, a committee of five members was formed to draft a declaration of independence. Members of the committee were John Adams, Benjamin Franklin, Thomas Jefferson, Robert Livingston of New York, and Roger Sherman of Connecticut. The committee outlined the structure for the declaration, and assigned the initial drafting to Jefferson. He worked in haste and under serious time pressures while worrying about the health of his wife Martha back at Monticello.
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Jefferson modestly said that he had not attempted any original statement, but was only reflecting views current in the society. He did not consider his draft to be of value in the “originality of principles or sentiments, nor yet copied from any particular and previous writing. It was intended to be an expression of the American mind....All its authority rests on the harmonizing sentiments of the day.”
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This modesty was without foundation, as we shall see.

Jefferson closely followed the events that transpired at the Virginia Convention while he was preparing his draft of the Declaration of Independence. He viewed himself as a Virginian, and always remained attuned to his political base among the slave owning planter-lawyers of the Virginia elite.
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In this instance, he was wise to pay such close attention.

The Virginia Convention, after proposing that America declare independence, asked George Mason, a well-loved older planter, to draft a declaration of rights and principles of government for Virginia. Mason was forty-eight years old and had long taken an interest in patriot causes, but had not previously engaged openly in politics because he despised most aspects of it. Mason was not a lawyer, but had studied deeply the principles that lay at the base of colonial differences with Britain.
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His draft was reviewed and approved by a small committee, probably because it was a pure statement of the natural law principles made popular by John Locke.
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It was then circulated among the delegates in preparation for a discussion that began on May 29, 1776. It was made public and circulated so widely through the colonies that it became the model for several state constitutions.
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But it was not popular with the Virginia Convention.

The first paragraph of Mason’s declaration read:

All men are born equally free and independent and have certain inherent natural rights of which they cannot, by any compact, deprive or divest their posterity; among which are the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.
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This was a “pure” statement of the natural rights theory developed by Locke and others, which the colonists adopted late in their struggle with the British. Mason had faithfully restated the principles of natural law that were the foundation of colonial claims that Britain was attempting to enslave them.

The convention included members who had shouted down Richard Bland in 1769 when he had proposed a modest extension of slave owners rights to manumit their slaves. There were men who knew of the
Somerset
decision and that Virginia had thereafter called for committees of correspondence that led to the First Continental Congress, where the deal to protect slavery had been made with John Adams.

Some members of the Virginia Convention were aghast that, in their view, George Mason was encouraging slaves to rebel. The leading slaveholders at the Virginia Convention could not believe the language he had used. As the debate began on May 29, “all were struck with the force of the objection” made by Robert Carter Nicholas and others that the first article was “inconsistent with the state of slavery then existing in Virginia” to proclaim the equality of men in a “fundamental act,” for doing so would “have the effect of abolishing that institution.”
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One of their own appeared to be a traitor to their class. They filibustered against Mason’s draft for at least two days. The proposal clearly and unequivocally denied the basic principle of slavery, that children born of slave women “belonged” to their master. It also prohibited anyone from contracting into slavery “to deprive their posterity” of the named rights. Black slavery was hereditary through the mother. There was no ambiguity—no way around the plain meaning of these words. “They saw in the sweeping phraseology of the declaration that its adoption into the fundamental law would immediately emancipate the slaves.”
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And they would have none of it.

Richard Henry Lee was attending the Continental Congress in Philadelphia during the Virginia Convention. His brother, Thomas Ludwell Lee, wrote to him that:

A certain set of aristocrats—for we have such monsters here—finding that their execrable system cannot be reared on such foundations, have to this time kept us at bay on the first line, which declares all men to be born equally free and independent. A number of absurd or unmeaning alteration have been proposed, yet by a thousand masterly fetches and stratagems the business has been so delayed that the first clause stands yet unassented to by the Convention.
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Did Mason think that the slave owners who ruled Virginia would consent to this statement? We do not know. Mason, like Jefferson, Richard Henry Lee, Patrick Henry, and other colonial leaders, had pointed out the evils of slavery, but when faced with the reality of its importance, became impotent to take action against it. Why then present such a stark challenge to the Convention?

The answer lies in the issue that Mason was addressing— the colonial claims against England, which had begun as the claims of Englishmen but had become converted to claims under natural law that the British were out to “enslave” them. In that context, the words were a clear justification for separation from a Britain that sought to consume the riches from the colonies while ignoring their liberties.

But the slave holders at the Convention had their eyes clearly fixed on protecting slavery no matter what general principles of the revolution were involved. The intensity of their conviction in protecting slavery is ignored by some historians who focus on the contributions of Mason’s original draft to Jefferson’s proposed national declaration of independence, without addressing the hostile reaction to that draft in the Virginia Convention.
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During the first week in June, the Virginia delegates sought “to vary the language, as to not involve the necessity of emancipating the slaves.”
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There were those, such as Robert Carter Nicholas, who would have deleted Mason’s first principle altogether, as Thomas Ludwell Lee had suggested to his brother, Richard Henry. But wiser heads prevailed. The draft was already known to the public.
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To adopt it without the first paragraph would tell the world that Virginia intended to protect slavery at all costs. But it could not be adopted without change because slave holders feared correctly that it could be used to abolish slavery or encourage slave revolt.

We do not know how Mason argued the matter, if he did. He may have responded, as some did later, that slaves were excluded from the statement because they had no right to contract and therefore no rights under the clause —or that they were property and similarly excluded— arguments that were vague at best in light of the specificity in the language Mason had drafted.

Judge Edward Pendleton came to the rescue of the Convention. He was the shrewd Virginia judge who had balanced his distaste for the Stamp Act against his duty as a justice by trying to keep his court open in 1765. He also joined in the call for committees of correspondence in 1773.

During the debate, in late May and early June, the word “born” was deleted in deference to the hereditary nature of slavery, but the Convention was still unsure how to make clear that the declaration did not apply to slaves. Pendleton finally proposed at least one amendment which achieved this objective. His suggested inserting the phrase, “when they enter a state of society,” as a condition to the exercise of any of the rights that Mason had described. As a result,
all
men continued to be “equally free and independent”— the word “born” being already deleted. Their “natural rights” were no longer “natural” but were “inherent.” But these rights did not arise by birth, but came into being only “when men enter a state of society.”

This amendment answered the slave holders’ complaints, “slaves being no part of the society to which the declaration applied and the masters having control over when those outside should enter.”
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Until they had “entered” such a state, they had none of the rights that Mason had outlined. And finally, the door on the expansion of these “inherent rights” was slammed by striking the phrase “among which are” and replacing it with the phrase “namely,” making clear that no other rights could be considered inherent under the Virginia Declaration of Rights. Thus, Pendleton persuaded the slave owners that slavery would remain fully protected under the new constitution. With some other modifications —none of them touching the first paragraph—the Mason draft was adopted on June 12.
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Here is the Mason draft, with changes indicated. Deletions are italicized and in parenthesis, additions are in boldface.

All men are
(born)
equally free and independent and have certain inherent
(natural)
rights, of which,
when they enter a state of society,
they cannot, by any compact, deprive or divest their posterity; (
among which are
)
namely
the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.
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Modern scholars are satisfied that Jefferson had access to Mason’s draft, somewhere between June 6 and 12. Historian Joseph Ellis explained:

Throughout late May and early June couriers moved back and forth between Williamsburg carrying Jefferson’s drafts for a new constitution to the Convention and reports on the debates there to the Continental Congress.… Since we know that Jefferson regarded the unfolding of events in Virginia as more significant than what was occurring in Philadelphia and that he was being kept abreast by courier, it also strains credibility to deny the influence of Mason’s language on his own.
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