SIX
IT IS ALL WELL AND GOOD TO FLING HIGH TALK ABOUT equal rights before a mighty king. But what about you, you Founders? Did you respect the rights of others in the way that you demanded the king respect yours?
The Declaration of Independence and the Constitution of the United States were made by a people who were slaveholders, and within the Constitution are three provisions that recognize and protect the institution of human slavery.1 The authors of both the Declaration of Independence and the Constitution included buyers, owners, and sellers of slaves. Among the slaveholders were three of the most prominent of the Founders: George Washington, James Madison, and Thomas Jefferson. Of these only Washington liberated his slaves, which he did only upon his death. How can we excuse this?
Begin with the fact that the Founders placed themselves in an interesting ad hominem position by writing the Declaration of Independence in the way that they did. They were acutely aware of the contradiction between the principles of the Declaration and the fact that they owned other people. They could expect criticism based on these principles, and sure enough that criticism was quick to come. It came from an official source—the British administration to which the Declaration was addressed.
The British administration, led at that moment by Lord North, encouraged a lawyer in London by the name of John Lind to reply.2 Most of his reply is about the list of charges against the king and Parliament that make up the main body of the document. This middle part of the Declaration, the part after the universal opening, was at the time the most noticed and important part. According to the Declaration, it supplies the facts (“let Facts be submitted to a candid world”) that justify the colonists in exercising their natural right to form their own nation. The British were eager to refute these charges and spent most of their time on them.
Lind makes reference to the opening passages of the Declaration. He reminds the colonists, now Americans, that this high-blown talk about equal rights and government by consent sounds very pretty coming from a bunch of slaveholders, especially when it is addressed to a mother country in which there are no slaves. In response to the twenty-seventh charge brought against the king (“He has excited domestic insurrections amongst us”), Lind writes:
But how did his Majesty’s Governors excite domestic insurrections? . . . [T]hey offered freedom to the slaves of these assertors of liberty. . . . Is it for them to say, that it is tyranny to bid a slave to be free? To bid him take courage, to rise and assist in reducing his tyrants to a due obedience to law? To hold out as a motive to him, that the load which crushed his limbs shall be lightened; that the whip which harrowed up his back shall be broken, that he shall be raised to the rank of a freeman and a citizen? It is their boast that they have taken up arms in support of these their own self-evident truths—“that all men are 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 these 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?3
According to Lind, the colonists are the tyrants, and the king and his administration are the force for liberty. He was able to claim this by the existence of slavery in the colonies and on the plantations of the very signers (and also the conflict with the Indian tribes). He was able to shame them with their own principles. He was able to hurl their charges back upon them redoubled. Unwilling to grant the principle that he could govern them only with their consent, the king was able still to appeal over their heads to the liberty of their slaves. It was for the Founders a terrible contradiction affecting the very ground upon which they stood.
There are plenty of problems with this claim from Lind. In fact, the British government had not been the consistent defender of liberty that Lind claims. Slavery had come to America under British law. British law permitted and also protected the slave trade in the British Empire until March 1807, three weeks after it was abolished in the United States.4 Slavery itself was not abolished in the British Empire until 1833, thirty-two years before it was abolished in the United States, after a generation of campaigning by William Wilberforce and his colleagues in the abolition movement. British laws guaranteed that British ships would carry all trade, including slaves, in the West Indies. British ships transported about 3.5 million slaves to the New World, and that formed much of the economic basis of the British Empire in the West Indies, the most lucrative part of the empire. As regards slavery, there were many dirty hands in many countries.5
Yet these words from Lind must, as we say, have hurt. The Founders must have known that they were going to hear such words, and they must have known that they were going to hurt. That is because they said the same kinds of words against themselves, often and consistently. If a hypocrite is a man who pretends to virtues he does not have, the Founders were not that.
Take the case of Thomas Jefferson. Jefferson drafted a passage for the Declaration that condemned the king for the “execrable commerce” of the slave trade, which passage was deleted from the final version.6 Jefferson was a participant in that “execrable commerce,” a buyer and seller in that market. Moreover, there is a chance that he himself fathered a child by a slave, a beautiful young woman by the name of Sally Hemings, who cannot have had a free choice in the matter.7 How can Jefferson have justified this?
The answer is that he did not justify it; he condemned it. Also he attempted to bring it to an end. Most effectively, he opposed slavery in the matter of Virginia’s claims to western lands. Upon the urging of Jefferson, Virginia ceded its claims to those lands to the federal government. This set the pattern for the growth of the Union, not by accretions of territory to the existing states, but by the addition of new states on an equal footing with the old. The pattern is the opposite of colonial growth and the first example of the expansion of a free and representative government by adding additional free and representative citizens and states.
Jefferson also urged Virginia to cede its western claims with the condition that no slavery be permitted in those territories. This condition is recognized in the beautiful and famous Northwest Ordinance of 1787, which was for many decades listed in the US Code as the third “Organic Law” of the United States.8 It provided the mechanism by which the western lands of the United States could be organized into territories, and then the territories organized into states. Article 6 of the Northwest Ordinance contains the following passage on slavery:
There shall be neither slavery nor involuntary servitude in the said territory, otherwise than in the punishment of crimes whereof the party shall have been duly convicted: Provided, always, That any person escaping into the same, from whom labor or service is lawfully claimed in any one of the original States, such fugitive may be lawfully reclaimed and conveyed to the person claiming his or her labor or service as aforesaid.9
This sets a pattern to which Abraham Lincoln would later appeal in his famous Peoria speech. By the time Lincoln had entered politics, a movement had grown up to justify the institution of slavery, and this movement demanded the expansion of slavery into the western lands. Lincoln begins his great proof that the Founders were opposed to slavery with this provision of the Northwest Ordinance and its evidence of the opinions of Thomas Jefferson.10
Jefferson’s most famous statement on slavery is in his book Notes on the State of Virginia, written in 1781–82. He writes:
The whole commerce between master and slave is a perpetual exercise of the most boisterous passions, the most unremitting despotism on the one part, and degrading submissions on the other. . . . The man must be a prodigy who can retain his manners and morals un-depraved by such circumstances. And with what execration should the statesman be loaded, who permitting one half the citizens thus to trample on the rights of the other, transforms those into despots, and these into enemies, destroys the morals of the one part, and the amor patriae of the other. . . . And can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are of the gift of God? That they are not to be violated but with his wrath? Indeed I tremble for my country when I reflect that God is just: that his justice cannot sleep for ever: that considering numbers, nature and natural means only, a revolution of the wheel of fortune, an exchange of situation, is among possible events: that it may become probable by supernatural interference! The Almighty has no attribute which can take side with us in such a contest.11
These are forecasts of doom. In the Declaration Jefferson appealed on behalf of the Americans to the “Supreme Judge of the World” for the rectitude to their intentions. He knew at the time what he made more explicit in the Notes—that the “Almighty has no attribute” that could side with them in the contest between the master and the slave. This means that the liberty of all is threatened by the oppression of some.
In that, he portends the terrible judgment acknowledged by Abraham Lincoln in his Second Inaugural Address eighty-three years later:
Yet, if God wills that [the war] continue until all the wealth piled by the bondsman’s two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said “the judgments of the Lord are true and righteous altogether.”12
Few match the eloquence of Jefferson or Lincoln, but the record of the Founding is replete with such statements by its leading figures.13
The contradiction between the beliefs of Jefferson and his actions constitutes testimony of a peculiar and powerful kind to the influence of these “Laws of Nature and of Nature’s God.” Obviously the contradiction means that those laws are not everywhere obeyed. Thomas Jefferson, who wrote down the reference to them in the Declaration, did not obey them. And yet still he wrote them down. Somehow they were drawing him. He, a slaveholder, could not resist their attraction.
The Founders knew that the Declaration would build pressure to abolish the practice of slavery. They felt that pressure already, and they began to act on that pressure in ways that substantially reduced and restricted the practice of slavery in early America. One may blame them for the insufficiency of this. One may criticize them for removing from the Declaration the language against slavery that Jefferson proposed. One may say that they did not mean the principle of equality that they did place there. But why then should they place it there at all?
In a work of the first importance for understanding the Founding, Thomas West traces the steps taken to abolish slavery in most of the Union during the Revolutionary period. When the controversy with Great Britain began, slavery was legal in all parts of the colonies. He summarizes the steps:
The third charge against the Founders was that they failed to abolish slavery. Our answer, to this point, has been: they limited and eventually outlawed the importation of slaves from abroad; they abolished slavery in a majority of the original states; they forbade the expansion of slavery into areas where it had not been previously permitted; they made laws regulating slavery more humane; individual owners in most states freed slaves in large numbers. In light of all this, it is a gross exaggeration to speak . . . of “the unfree origins of the United States.” Freedom was secured for the large majority of Americans, and important actions were undertaken in the service of freedom for the rest.14
John Jay was one of the three authors of the Federalist, a diplomat, a governor of New York, and the first Chief Justice of the Supreme Court. He was a tireless worker for abolition. In June 1788 he wrote a letter to the president of the English Society for the Manumission of Slaves. In it, he explains the difficulty of abolition during the Revolution and the steady pressure that built for it. When the Revolution commenced, “the great body of our people had been so long accustomed to the practice and convenience of having slaves, that very few among them even doubted the propriety and rectitude of it.” Then “liberal and conscientious men” began to draw the lawfulness of slavery into question. “Their doctrines prevailed by almost insensible degrees.” They were like “the little lump of leaven which was put into three measures of meal.” Even at the time he was writing, the “whole mass is far from being leavened, though we have good reason to hope and believe that if the natural operations of truth are constantly watched and assisted, but not forced and precipitated,” then abolition can be achieved. “Many of the legislators in different states are proprietors of slaves,” and therefore a “total and sudden stop to this species of oppression is not to be expected.”15
Jay himself kept up this pressure throughout his career. He personally applied the pressure of principle upon the practices of his country. These practices had been long established, and they gave way slowly. The ideas adopted in the Founding were making demands through the agency of John Jay and people like him, and those demands were being heard.
Two generations later, the United States would suffer its most costly war over this issue of slavery. The Civil War arose from the question whether slavery would be extended across the whole continent, or whether it would be restricted and placed, as Lincoln said, “in the course of ultimate extinction.” Lincoln believed the “real issue in this controversy . . . is the sentiment on the part of one class that looks upon the institution of slavery as a wrong, and another class that does not look upon it as a wrong.”16 Apparently something had interrupted the process of influence that John Jay described, the process leavening the whole mass of the people with the principles of liberty and equality. It is worth saying what that something is.
The apostle of proslavery sentiment is the thinker John C. Calhoun. He believed it an abomination for blacks and whites to live together as equal citizens. Unlike anyone in the classical world, he espoused a racial theory of inferiority. Such thinking is unknown to the American Revolution. Also, he based his theory significantly on the hopes and tenets of modern science. Writing on discoveries and inventions in his magnum opus, Disquisition on Government, he explained:
When the causes now in operation have produced their full effect, and inventions and discoveries shall have been exhausted—if that may ever be—they will give a force to public opinion, and cause changes, political and social, difficult to be anticipated. What will be their final bearing, time only can decide with any certainty. That they will, however, greatly improve the condition of man ultimately— it would be impious to doubt.17
For Calhoun, piety and science come together to predict progress. Our human faculties, a gift from God, can be used over time only in support of good. Therefore the inferior must be subordinated to the superior among humans, so as not to obstruct this progress. Slavery is built then on the hierarchy of race that seems to Calhoun natural or inevitable among men, and the hierarchy is necessary to the advance of mankind toward its goal.18 The process of scientific improvement will be our creation, but also it will work upon us, “give a force to public opinion, and cause changes, political and social.” Holding these principles, Calhoun had to reject the principles of the Declaration.
Alexander Stephens, the vice president of the Confederacy, would extend Calhoun’s reading of American history. Stephens quotes Jefferson that slavery was the “rock upon which the old Union would split.” He was correct about this, Stephens thinks. The prevailing ideas entertained by Jefferson “and most of the leading statesmen at the time of the formation of the old Constitution” believed that the “enslavement of the African was in violation of the laws of nature; that it was wrong in principle, socially, morally, and politically.” They did not know how to deal with this evil, but the “general opinion of the men of that day was that, somehow or other in the order of Providence, the institution would be evanescent and pass away.” This is just what the Founders themselves said.
But they were wrong, according to Stephens, that slavery would pass away because they were wrong that slavery was wrong. The Confederacy is the first “in the history of the world, based upon this great physical, philosophical, and moral truth” of the good of slavery. It is a “discovery in the various departments of science.” It is a truth “slow in development, as all truths are and ever have been, in the various branches of science.” It is like the principles of astronomy announced by Galileo, or like the principles of political economy announced by Adam Smith. In the past, many governments have subordinated certain classes of the same race: this is “in violation of the laws of nature.” In the Confederacy, all of the white race, “however high or low, rich or poor, are equal in the eye of the law.” Not so with the “Negro”: “Subordination is his place. He, by nature, or by the curse against Canaan, is fitted for that condition which he occupies in our system.”19
Progressive and developmental thinking of a scientific nature has for Stephens revealed a new truth. It is a racial truth. It is wedded to his religion, a point to which Lincoln would respond: “[I]t may seem strange that some men should dare to ask a just God’s assistance in wringing their bread from the sweat of other men’s faces.”20
In these respects, the Confederacy is a harbinger of a new political doctrine that would appear in virulent forms in Europe and also in the United States, especially in the twentieth century. According to this doctrine, not nature but history is the determinant of all things, including the status and even the consciousness of human beings. The ways of history are revealed to us in the discoveries of modern science. These discoveries show us the contingency of our own understanding, but also they give us a tool by which we can conquer, or anyway become the makers of, the forces of history. In Calhoun and Stephens, these doctrines are wedded to their understanding of religion; in later articulations they become the enemy of and the replacement for religion. The old liberalism of the American Revolution respected in principle the liberty of all, and it led our nation away from the practice of slavery. The new doctrines of history respect in principle the liberty of none, and they lead away from the practice of freedom.
Abraham Lincoln, whose statesmanship is part of the redemption found in the Civil War, suggested how we might think about our principles and the fact that we fail perfectly to follow them:
[The authors of the Declaration of Independence] did not mean to assert the obvious untruth, that all were then actually enjoying that equality, nor yet, that they were about to confer it immediately upon them. In fact they had no power to confer such a boon. They meant simply to declare the right, so that the enforcement of it might follow as fast as circumstances should permit. They meant to set up a standard maxim for free society, which should be familiar to all, and revered by all; constantly looked to, constantly labored for, and even though never perfectly attained, constantly approximated, and thereby constantly spreading and deepening its influence, and augmenting the happiness and value of life to all people of all colors everywhere.21
Lincoln reminds us that the principles of right will among human beings be “never perfectly attained.” He reminds us also that the pursuit of them will yield the best benefits that human life can afford. This was the direction of the American Revolution. The interruption of that movement has come not from service to the principles and institutions of the Revolution but from their abandonment.