Slave Nation (15 page)

Jefferson was appointed to a committee of five to draft the declaration on June 11. The committee met and outlined the contours of the declaration before Jefferson was singled out to prepare the draft.
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His appointment to the committee in early June would have focused the busy Jefferson’s mind on the events that were taking place at the Virginia Convention in Williamsburg. Since Virginia politics was his lifeblood, he would have paid close attention to the mutilation of Mason’s first paragraph. He and Mason were engaged in the same enterprise at about the same time, and he had “volunteered” his ideas about the shape of Virginia’s government to the Virginia Convention.

Jefferson’s appointment by the subcommittee to draft the declaration probably took place on June 23, nine days after the Virginia convention had modified Mason’s draft.
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There were eleven days between June 12, when the final version was adopted by Virginians in Williamsburg, and June 23, when Jefferson was appointed to draft the national declaration of independence. When Washington, Henry, and Pendleton had ridden to Philadelphia for the first Continental Congress in 1774, the trip, with some delays, took five days.
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There was more than enough time for news of the final adoption of the Virginia Declaration of Rights to reach Jefferson as he began work on the national declaration. Jefferson prepared his draft and had it reviewed by Franklin and Adams between the 23 and the 28 of June.

Probably the most important information Jefferson obtained before he prepared his declaration of independence was the reaction of the Virginia Convention to Mason’s draft. The uproar by the slave owners and the ensuing modifications of Mason’s declaration sent Jefferson a warning. If he followed the Mason draft he could expect that southerners in the Congress would react exactly as they had at the Virginia Convention. They would demand that it be changed to protect slavery in unequivocal language. The slave-holding colonies could explode and show the world how disunited the colonies were. Such a reaction might destroy the nation before it was born.

When Jefferson studied the draft as modified by the Virginia Convention, he realized that he could not use it either. Mason had written that “all men are born equally free and independent.” This language—particularly the word “born”—had infuriated the Virginia Convention because it was a direct contradiction of slavery. There was no way to save the word “born” because it was so specific. But the words that remained, “all men are equally free and independent,” as a statement of fact was absurd. Some were well born, others were not, even if slaves were not considered. It would not do to start the declaration with an assertion that no one would believe.

Furthermore, the modification to Mason’s draft adopted by the Virginia Convention was seriously offensive to Jefferson. Pendleton’s modification—“when they enter a state of society”—blew a huge hole in the “natural rights” theory on which the revolution from Britain now depended. Rights did not flow from nature, rather they arose after some white men made a judgment about when other men “entered a state of society.” The phrase could not be explained as meaning that slaves were not in “society” at all because the purpose of the document was to establish principles for society that included slaves.

While John Locke relied on an analysis that began with hypothetical men in a state of nature, and from that, built a rationale for government to be based on the consent of the governed, the colonists turned the hypothetical state of nature into a present-day reality. The words “all men are created equal” or “born free,” are not introductions to a cause in political theory. They are an assertation of a present day reality or human aspiration. To carve out an unlimited exception from this assertion is to undercut the primary rationale for the Declaration of Independence.
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Jefferson’s assignment was to provide a consensus document, showing that America was united in its determination to be free. He had to be sure that his declaration did not meet the same fate as Mason’s.

The exclusion of slaves from the domain of natural rights, as was done in the Virginia Declaration, would be obvious to both the northern colonies and to Britain. The British would certainly accuse the Americans of seeking freedom to enslave blacks. Furthermore, the right of “obtaining and possessing property” would confirm the accusation, because it was well known that, to southerners, slaves were property.

This concept that slaves were property was dramatically expressed in the very Congress that proclaimed independence. In late July, 1776, Congress debated whether it should vote by colony or by some other measure. This led to a discussion of how state contributions to the federal treasury should be determined. One proposal was that the colonies contribute according to the number of “inhabitants of every age, sex, and quality, except indians.” Jefferson’s notes go on:

Mr. Chase [MD] moved that the quotas should be fixed, not by the number of inhabitants of every conditions, but by that of white inhabitants.…He observed that Negroes are property, and as such cannot be distinguished from the lands or personalities held in those states where there are few slaves.…There is no more reason therefore for taxing the southern states on the farmers head, and on his slaves head, than the northern ones on the farmers heads and the heads of their cattle.
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Rep. Thomas Lynch of South Carolina—one of the southern gentlemen with whom John Adams had associated at the First Continental Congress—added:

If it is debated whether their slaves are their property, there is an end to the confederation
. Our slaves being our property, why should they be taxed more than the land, sheep, cattle, horses, etc.
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(emphasis added)

The inclusion of “property” in the declaration would have enabled the slave owners to base their claims to own slaves on the declaration itself. They could maintain that the Revolution was fought to protect their property in slaves.
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In fact, one petition
against
manumission of slaves in 1785 in Virginia did just that. It claimed that slavery was protected by the Virginia Declaration of Rights:

When the British Parliament usurped a right to dispose of our property, it was not the matter but the manner adopted for that purpose that alarmed us, as it tended to establish a principle which might one day prove fatal to our rights of property. In order therefore to fix a tenure in our property on a basis of security not to be shaken in future, we dissolved our union with our parent country, and by a selferected power bravely and wisely established a constitution and form of government,
grounded on a full and clear declaration of such rights as naturally pertain to men born free
and determined to be respectfully and absolutely so as human institutions can make them.
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(emphasis added)

The slave owners’ arguments for the maintenance of slavery would have been even more powerful if they had been rooted in an unalienable property right in a national declaration of independence. Jefferson knew that if he included the term “property,” he would protect the institution of slavery as it then existed.

This was not his position. In 1769, he had encouraged Richard Bland to move an amendment to Virginia’s law to permit the manumission of slaves. Jefferson seconded the motion. Jefferson recalled that Bland was “denounced as an enemy of his country and treated with the grossest indecorum.”
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In his “Summary View” in 1774, Jefferson presupposed that domestic slavery might be abolished in the future. Thus Jefferson was prevented by his own known position on slavery from copying the draft as adopted by the Virginia Convention. Jefferson knew he was drafting a document for public consideration abroad as well as at home. Had he included the term “property,” those opposed to the Revolution in both Britain and America would have immediately accused the colonies of seeking their liberty in order to oppress slaves. This criticism was in fact made concerning the remnant of Jefferson’s attack on the king for encouraging slave rebellion.

It is their boast that they have taken up arms in support of these their own self-evident truths—that all men are created equal, that all men are endowed with the unalienable rights of life, liberty, and the pursuit of happiness. Is it for them to complain of the offer of freedom held out to those wretched beings; of the offer of reinstating them in that equality which, in this very paper, is declared to be the gift of God to all; in those unalienable rights with which, in this very paper, God is declared to have endowed all mankind?
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Whatever one thinks of Jefferson’s views or actions concerning slavery over his lifetime, in 1776 he opposed the existing concept of slave property. In addition, he had proposed an end to existing property rights of primogeniture (real property held at death descended to the oldest son) and entail (real property held at death could not be divided), both of which contributed to the maintenance of the great slave plantations. He would not consciously write into a declaration language that would be used against the very reforms he had proposed.

The alterations made by Virginia to Mason’s original draft suggested to Jefferson that its primary difficulty lay in its specificity. Jefferson solved this problem by using language that was more general, and therefore more ambiguous and less likely to appear objectionable.

For the word “born,” which had caused the first outburst at the Virginia Convention, he substituted the word “created” which did not specify the process of birth by a woman. This enabled Jefferson to return to his beloved natural law principles, and attributed the conclusion of equality to god or nature—“all men are ‘created’ equal.” What happened to them after they were created is not discussed. Thus he reasserted the creator—god or nature—as the source of the rights. Having elevated the source of the rights to god or nature, he could insist that this source had not necessarily exhausted itself in the creation of the specified rights. They were only “among these rights,” leaving open the possibility of recognition of other rights in the future. This was a fateful change: it empowered the nation, as it grew, to create new rights, mainly by legislation, which became as fundamental as those recognized in the declaration. Since then, America has created many important rights by statute, as well as expanding constitutional rights as we did in 1865 and 1920.

Finally, Jefferson solved the problem attached to the word “property.” He erased it, subsuming property in the generality of “pursuit of happiness.”
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By using the more abstract term “pursuit of happiness,” he did not embed slavery in the document expressing our national
raison d’être
. Balancing his views on human worth against the slave owners’ interests, he declined to enshrine slave property in the Declaration. The result was the language that still resonates around the world.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness—That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed—That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

The statement that emerged was of such profound quality that it has captured the hearts and minds of men and women ever since. Historian Pauline Maier believes that it was Jefferson, the literary genius, who produced these words. Referring to his use of the phrase “pursuit of happiness,” she writes that Jefferson “meant to say more economically and movingly what Mason said with some awkwardness and at considerably greater length.”
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But it was Jefferson the lawyer—who knew how to make use of ambiguity when it would better serve his objective—who was equally its author. Underpinning his literary and lawyer skills was the ability to synthesize all that he had studied of past political theory. That profound learning has, over the centuries since, generated brilliant discussions of the concepts embedded in those words.
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The Congress did not approve of all of Jefferson’s language. It made numerous changes in the later parts of the document. But only one minor change was made in the crucial second paragraph, which is remembered long after the specific grievances outlined against King George have been buried in the dust of history.
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It is ironic that but for the desire of Virginians to retain and perpetuate slavery, the clarion call to liberty that is the Declaration might never have been heard.

Jefferson’s direct criticism of slavery in his draft of the declaration did not fare as well. He composed a complicated provision blaming the king for enslaving blacks and then inciting them to revolt and murder their masters by offering them freedom.
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He has waged cruel war against human nature itself, violating its most sacred rights of life and liberty in the persons of a distant people who never offended him, captivating and 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 and 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, and 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
.